Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought direction to the respondents for acceptance of his bid offered in auction, held on 15.04.2009.
2. Shorn-of unnecessary details, the Lahore Development Authority (hereinafter to be referred as "Authority") got published proclamation for auction of commercial/residential plots in various schemes of Lahore. The petitioner, after deposit of Rs.50,000/- as call deposit, participated in the bidding process and was declared as highest bidder against Plots No.191 Block No.3-B/I (measuring 4 Marlas 200 sq ft) and 415 Block 5-A/II (measuring 4 Marlas 180 sq ft) situated in Quaide-Azam Town Scheme, Lahore. Since despite having been declared as highest bidder and deposit of 20% earnest money, the allotment letter was not issued to the petitioner, he filed the instant petition which was allowed by this court through ex-parte order dated 24.08.2010. When the Authority came to know about said order, it filed an application (No.69/2013) under Section 12(2) CPC challenging the vires of order dated 24.08.2010. The said application was dismissed by this court on 17.05.2013.
Aggrieved by the said order, the Authority filed CPLA No.1406-L of 2013 before Hon'ble Supreme Court of Pakistan which after conversion into appeal was allowed. As a result, order, dated 17.05.2013, was set-aside and application of the LDA (CM No.69/2013) was accepted and matter was remanded to this court for decision afresh.
3. Learned counsel for the petitioner, while opening his arguments, submits that the competent authority was bound to convey its order about acceptance of bid of the petitioner or otherwise within thirty days, whereas the bid of the petitioner was rejected after thirty five days which speaks volumes about mala-fide on the part of the respondents; that the competent authority is bound to advance reasons in support of any order regarding acceptance or rejection of bid but no tangible reasons have been given while rejecting bid of the petitioner; that the petitioner, being the highest bidder, is entitled for allotment of plots in question; that the order regarding rejection of the petitioner's bid does not qualify the test of speaking order as contemplated under Section 24-A of the General Clauses Act 1897; that the respondents despite knowing the fact that petitioner was entitled for allotment, did not present true facts before this court. To fortify his contentions, learned counsel relies on Board of Intermediate and Secondary Education, Sargodha through its Secretary vs Abdul Rehman (1998 SCMR 1711), Mst. Musharraf Sultana vs. Fazal Hussain (1993 CLC 1) and Muhammad Ramzan vs. Muhammad Khan and another (1972 SCMR 442).
4. The legal prepositions canvassed by learned counsel representing Authority at the Bar, can be summed up in the words that according to Clauses 5 and 6 of the Terms and Conditions of Auction, the competent authority enjoyed power to accept or reject any bid; that instant petition is not maintainable due to non-joinder of necessary party inasmuch as LDA has not been impleaded as a party in the instant petition; that the petitioner has approached this court while concealing material fact inasmuch as prior to filing the instant petition, the petitioner withdrew the earnest money, deposited by him, thus he cannot ask for acceptance of his bid; that neither any discrimination nor malafide on the part of the respondents has been alleged in the instant petition; that other bidders, who participated alongwith the petitioner, having not been arrayed in the instant petition, thus the same is not maintainable; that since no vested right of the petitioner has been infringed, he has no cause of action to file the instant petition; that 20% earnest money was not deposited by the petitioner within the stipulated time frame thus the petitioner is not entitled for equitable relief; that though the petitioner was well aware about rejection of his bid but the order issued in that regard having not been challenged by the petitioner, has attained finality; that as a matter of fact, the bid offered by the petitioner cannot be accepted for the reason that according to the rules in vogue, a plot cannot be auctioned below the price against which any plot of equal denomination in the same vicinity was auctioned; that LDA has no personal grudge against the petitioner rather just to fetch maximum revenue to the public exchequer, the competent authority has decided to re-auction the plots in question; that if the petitioner concurs, he can be accommodated by giving him first right of refusal, subject to the condition that the highest bid to be given by anyone else is accepted. In addition to his oral submissions, leaned counsel has also relied upon Muhammad Maqsood Sabir Ansari vs. District Returning Officer, Kasur and others (PLD 2009 SC 28), and Nagina Bakery vs. Sui Southern Gas Limited and 3 others (2001 CLC 1559).
5. Learned counsel for the petitioner, while exercising his right of rebuttal, argues that Clauses 5 and 6 of the Terms and Conditions of Auction being relied upon by learned counsel for the respondents being in conflict with Section 24-A of the General Clauses Act, 1897 are ultra-vires; that withdrawal of the earnest money does not disentitle the petitioner to challenge the action of the respondents towards rejection of his bid; that the offer given by the petitioner being above the rates, notified by the District Collector for the said area, he cannot be deprived of his hard toiled fruits; that the entire case is not opened before this court rather while remanding the case, the Hon'ble Supreme Court of Pakistan has earmarked the scope of adjudication by this court during post remand proceedings thus this court cannot go beyond the same; that the petitioner did not conceal anything from this Hon'ble Court thus the allegation of concealment is not borne out; that the Director General, LDA having been arrayed as respondent, the objection raised by learned counsel for the respondents regarding non-joinder of necessary parties is not sustainable and that in case the petitioner's bid is not accepted, he is bound to suffer an irreparable loss.
6. I have heard leaned counsel for the parties and have also gone through the documents annexed with this petition, in particular the orders of the Apex Court of the Country in addition to the case- law cited at the Bar.
7. Before delving deep into the merits of the case, I would like to dilate upon the objection raised by the learned counsel for the petitioner that the entire case is not opened before this court rather the points of adjudication have already been earmarked by the Apex Court of the Country while remanding case to this court. In my humble opinion, to deal with the objection raised by learned counsel for the petitioner, a perusal of the decision of the august Supreme Court is inevitable, operative part whereof reads as under:- "The respondent filed his concise statement wherein he had not denied that he had withdrawn his earnest money. He, however, contended before us today that he withdraw the same in accordance with the direction of the petitioner. The learned counsel submitted that the competent authority had clearly mentioned in the terms of auction advertised in the newspaper that the authority reserved the right to reject any bid without assigning any reason. This condition was not brought to the notice of the High Court. We would refrain from making any observation on the consequences of the withdrawal of the earnest money or the effects of the condition of the authority's right to reject the highest bid. These factors may have relevance for the High Court which should have been taken into account while determining the respondent's claim to the two plots. Since they were not brought to the notice of the High Court during hearing of the respondent's writ petition the judgment of 17.05.2013 can therefore not be sustained in law. Consequently, this petition is converted into appeal and allowed. The impugned judgment dated 17.05.2013 dismissing the petitioner's application is set aside. We, therefore, allow C.M.A No.69 of 2013 filed by the petitioner under Section 12(2) CPC and set aside the judgment dated 24.08.2010 with the result that Writ Petition No.13586 of 2009 filed by the respondent shall be deemed to be pending and to be disposed of after hearing the parties." (emphasis provided).
A perusal of the afore-quoted order of Hon'ble Supreme Court of Pakistan shows that the application (CM No.69 of 2013) was accepted and the order, dated 24.08.2010, passed by this court, whereby the present petition was accepted in ex-parte manner, was set-aside. According to my humble opinion, when the order dated 24.08.2010 was set-aside, the matter stood reopened in its entirety. In this backdrop, I do not find myself in agreement with learned counsel for the petitioner thus the objection raised by him is accordingly spurned.
8. Now reverting to the merits of this case, I have observed that though this petition was filed in the year 2009, neither any move was made by the petitioner to implead the Authority nor any reason for its omission has been advanced. The stance of learned counsel for the petitioner is that as Director General, LDA has been arrayed as respondent, the said deficiency stands cured but according to my humble view when the law requires that a thing is to be done in a particular way, any deviation therefrom can only be termed as illegal. It is well entrenched by now that proceedings of a writ petition are governed by the provisions of Code of Civil Procedure 1908, CPC.
As per Section 79 read with Order I rule 3, CPC a lis can be filed against a legal or natural person and the official designation howsoever high that is cannot fulfill the said condition. The consequences of non-joining of a necessary party have been highlighted in the cases reported as Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115), Ghulam Rasool and 3 others vs. Board of Revenue Sindh through Member and 6 others (2010 MLD 776), Bore Muhammad vs. Mst. Aziza Begum and others (2001 CLC 701) and Secretary, B&R Government of West Pakistan and 4 others vs. Fazal Ali Khan (PLD 1971 Karachi 625). In the case of Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi (supra) it has inter alia been held as under:- "**No suit can be filed against Provincial Government without impleading the Province as a party and the procedural precondition is mandatory in nature and no relief can be sought without its strict compliance and such suit would not be maintainable......."
Further in the case of Bore Muhammad vs. Mst. Aziza Begum and others (supra) it has also been observed as under:- "**The plaintiff has sued the officials by their designations. Such officials cannot be sued in their official name. If the plaintiff is offended by any act or action of such defendants in their personal capacity, they can be used in their personal name......"
9. The petitioner has filed the instant petition with the following prayer:- "that the price offered by the petitioner in the auction held on 15.04.2009 may be directed to be accepted by the Lahore Development Authority for the purpose of sale of aforesaid plots to the petitioner."
A glance over the afore-quoted prayer clause shows that the petitioner has sought direction to the respondents for acceptance of his bid. On the other hand, documents submitted by the respondents alongwith report and parawise comments show that the petitioner was promptly conveyed about the rejection of his bid but he instead of challenging the same, filed the instant petition and succeeded to get ex-parte order in his favour. It is important to observe over here that after rejection of his bid, there was no question of its acceptance till the time the act of the respondents towards rejection of his bid was declared as illegal by any forum. This being the position, the prayer of the petitioner cannot be granted at this stage.
10. Learned counsel for the petitioner has failed to rebut the factum of withdrawal of earnest money by him prior to filing the instant petition. A perusal of the writ petition shows that the petitioner has not uttered even a single word about the said fact which amounts to concealment. Had the said fact been incorporated in the instant petition, the fate of the instant petition could have been entirely different even in pre-remand era. It is well established by now that a person who seeks equity must do equity and a person who does not bear clean character cannot be given any equitable relief in exercise of powers vested in this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. If any case law is required, reference can conveniently be made to the cases of Messrs Shahbaz Enterprises through Authorised Officer and another vs. Government of Sindh through Secretary, Local Govrnment Department, Karachi and others (2014 CLC 174), Muhammad Amir vs. Umer Hayat and 4 others (2010 CLC 1798), Kamran Hanif vs. Bilqees Bano and others (2010 YLR 1665) and Qaiser Ali Khan vs. Province of Sindh through Chief Secretary and another (2010 PLC (CS) 542).
11. The main stay of arguments of learned counsel for the petitioner is that the petitioner being the highest bidder has vested right for issuance of allotment letter. In this regard, I differ with learned counsel for the petitioner for the reason that till the time an agreement is signed between the parties, no vested right accrues in favour of the bidder, as till that time the rights and obligations of the parties remain undecided. Even otherwise, a bidder cannot claim award of contract or allotment on the ground of highest/lowest bidder as the same is subject to the approval of the competent authority. In this regard I stand guided by the verdicts in the matters reported as Mian Peer Muhammad vs. Hameer Saffar and others (2010 SCMR 1725) and Mumtaz Ahmad Chadhar vs. Rana Nasir Ali and 3 others (2005 SCMR 263). In the case of Mian Peer Muhammad (supra) the Apex Court of the country while dealing with the issue under discussion has laid law to the following effect:- cc ......Therefore, notwithstanding the deposit of lease money by respondents Nos.1 and 2 for one year, in our view, no concluded contract could be construed in their favour. With respect, it may be stated that the observation of learned Division Bench of High Court, noted herein above, is, therefore, misconceived. The contention of learned counsel that since in earlier auction the respondents Nos.1 to 2 came to be highest bidders and they had deposited lease money, it created in them a vested right to be heard before ordering re-auction of the disputed land, is also not tenable since there was no approval of their bids and no such an agreement of lease as per policy vide para 10 thereof was executed in their favour "
12. Now considering from another angle, if the allotment/award of contract to the highest bidder is vested right then referring the matter to the competent authority for its acceptance is an exercise in futility. The legislature in his own wisdom has mandated that any auction process is subject to the approval of the competent authority seemingly for the reason that the said authority is in better position to watch the national interest. While dealing with the importance of consent of the competent authority in a bidding process, the august Supreme Court of Pakistan in the case of Afzal Maqsood Butt vs. Banking Court No.II Lahore and 8 others (PLD 2005 SC 470) has held as under:- "The bid in an auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder, therefore, the confirmation of sale cannot be claimed as of right."
13. It is admitted position that neither in the writ petition nor during the course of arguments, learned counsel for the petitioner has raised any allegation of mala fide on the part of the Authority. When the acts of the respondents lead to the conclusion that they are aimed to fetch maximum revenue to the national exchequer, instead of deprecating such approach, the same shall be lauded so that the properties owned by the government are not sold at throw-away price and national interest is jealously guarded.
14. Insofar as the contention of learned counsel for the petitioner that the bid offered by the petitioner being higher to the rate notified by the District Collector, Lahore for the said area, the respondents could not reject the same is concerned, suffice it to observe that the said fact can be relevant for fixation of the reserve price, however, the same cannot be used to compel the competent authority to accept a bid which otherwise is not justified in view of the fact that plots of similar denomination in the same vicinity were sold at much higher price.
15. It is very astonishing to note that on the one hand, the petitioner opted to withdraw the earnest money and on the other proceeded to file the instant petition. To me after withdrawal of earnest money by the petitioner, he acquiesced with the rejection of his bid thus could not ask for its acceptance. In this regard my view stands fortified by verdict of the Apex Court of the country in the case of Kay Bee International (Pvt.) Ltd, Islamabad vs. Secretary to the Government of Punjab, Industries and Mineral Development, Lahore (PLD 2002 SC 1074) wherein it has inter alia been held as under:- "*Once the private respondent withdrew the earnest money, he was out of arena and could not be considered for the award of contract......"
16. Moreover, no person can be allowed to challenge an order to which he has already acquiesced due to his conduct. The said principle has elaborately been discussed in the cases reported as Sarosh Haider vs. Muhammad Javed Chundrigar and others (PLD 2014 SC 338) and Maqbool Elahi vs. Capital Development Authority, Islamabad (1998 SCMR 1074). In the case of Sarosh Haider (supra), the Apex Court of the Country has inter alia observed as under:- "*When a person is acquiesced with even an illegal order he cannot assail the same at some subsequent stage......".
If we adjudge the status of the petitioner on the touchstone of the afore-quoted judgments, the answer, in definite, is that after withdrawal of the earnest money he was not obliged to institute the instant petition.
17. Now taking up the plea of the petitioner that respondents were bound to convey the petitioner about the fate of the bid offered by the petitioner within 30 days of the auction and rejection of bid of the petitioner after 35 days is illegal, I am of the view that to deal with the said contention following lines from the advertisement are of paramount consideration:- A perusal of the afore-quoted portion from the advertisement renders it crystal clear that though it was mentioned that the competent authority would try to decide about acceptance or rejection of bid within thirty days of auction but the same cannot be taken as mandatory especially visualized in the light of the language of the sentence quoted above. Even otherwise according to own showing of the petitioner he was conveyed about the rejection of his bid just after 35 days of the auction. In this backdrop, the plea under discussion cannot be considered for acceptance of the bid of the petitioner.
18. Now coming to the case law cited by learned counsel for the petitioner I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Board of Intermediate and Secondary Education, Sargodha (supra), the controversy in pith and substance, was regarding the Service Regulations thus the same has even not the remotest connectivity with the preposition involved in the present case whereas in the case of Mst.
Musharraf Sultana (supra), it was decided that withdrawal of preemption money after dismissal of the suit and then its redeposit could not prejudice the preemptor's claim while in the instant case, the petitioner opted to withdraw the earnest money even before filing the present petition thus the case relied upon by the petitioner is poles apart from the instant case. Now coming to the case of Muhammad Ramzan (supra), I am of the view that the question in the said case was the fate of an act of a person towards withdrawal of preemption money during pendency of stay order whereas in the instant case, the petitioner after having withdrawn the earnest money was debarred to pray for acceptance of his bid.
19. As a necessary corollary to the discussion in the preceding paragraphs, I have no hesitation to hold that petitioner has no vested right for acceptance of his bid and after withdrawal of the earnest money he had no cheeks to file the present petition. Consequently, the same stands dismissed leaving the parties to bear their respective costs. Before parting with the order, it is observed that petitioner shall be given first right of refusal as offered by the learned counsel for the respondents but subject to the conditions that a bid to be given by a prospective bidder in re- auction is accepted by the competent authority.