' SHUJAAT ALI KHAN, J.-- The petitioners have assailed legality of order dated 24-11-2004 passed by Director General, Lahore Development Authority (respondent no,2).
2. Succinctly, the facts, as gathered from the instant petition, are that pursuant to an advertisement in National Press regarding auction of plots in different Schemes by LDA, petitioner no,1 (Muhammad Nazir) participated in the bidding process and after having been declared the highest bidder against plot no,37, New Muslim Town, Lahore, his bid was accepted against a consideration of Rs,52,000 per marla and upon deposit of the requisite amount in lieu of the consideration of the plot, the petitioner was put into possession. Later on, petitioner no,1 sold the said plot in favour of petitioner no,2 (Muhammad Sarfraz) through agreement to, sell dated 11-3- 1997 against consideration of Rs,50,50,000. After entering into an agreement to sell of plot with petitioner no,2, petitioner no,1 submitted an application before LDA authorities for issuance of transfer letter in favour of the petitioner no,2 in view of Clause 8 of the Allotment Letter. The request of the petitioner was turned down by the LDA authorities on the ground of pendency of investigation of case. FIR no,80/1998 before the Anti-Corruption Authorities. Being aggrieved by the act of the LDA authorities., petitioner no,! Filed Writ Petition no,19616 of 1998 before this court which came up for .Final hearing on 24-12-1998 when the same was disposed of with a direction to the competent authority to decide the matter afresh. After issuance of direction by this court in the aforequoted writ petition, respondent no,2 withdrew/cancelled order of confirmation in favour of petitioner no,
1. Thereafter, petitioner no,1 challenged the order regarding withdrawal/cancellation of confirmation of auction in his favour before this court in Writ Petition no,20084 of 1999.
Simultaneously, petitioner no,2 also challenged the said act of the respondent by virtue of Writ Petition no, 3550 .Of 2001. Both these petitions were decided by this court vide order dated 15-10- 2004 again directing the respondents to decide .The matter afresh. Again respondent no,2 while taking up the matter pursuant to the orders passed in the aforementioned writ petitions, upheld the order regarding withdrawal/ cancellation of confirmation of auction in favour of the petitioner through order dated 24-11-2004, hence this petition.
3. Learned counsel for the petitioners, while opening his arguments, submits that since petitioner no,1 was put into possession after receipt of amount of consideration his case was fully covered under the principle of locus poenitentiae as after having taken a decisive step towards implementation of confirmation of auction in favour of petitioner no,1, the jurisdiction of respondent no,2 was ousted to rescind the same; that since the petitioner no,1 purchased the plot in open auction, he could not be penalized due to any omission or commission on the part of departmental authorities; that though the order regarding withdrawal of confirmation of auction in favour of petitioner no,1 was purportedly passed on the basis of order passed by this court in Writ Petition no,19616 of 1999 but no direction having been passed by this court in that regard while disposing of the said petition, the entire structure erected by the respondents towards the cancellation/withdravval of the confirmation of auction in favour of the petitioner no,1 falls to the ground; that petitioner no,1 entered into an agreement to sell with petitioner no,2 totally in line with the terms and conditions of the allotment letter but the respondents refused to issue transfer letter in favour of petitioner no,2 despite request of petitioner no,1 with mala fide intention; that had there been any inquiry into auction process, the respondents could have proceeded against the petitioner prior to submission of his application for transfer of plot in the name of petitioner no,2; that as the petitioners have approached this court third time while invoking its jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the respondents took inconsistent pleas on all the three occasions thus, it is established on record that respondents have proceeded against the petitioners out of malice.
4. Conversely, learned counsel appearing on behalf of respondents, while defending the impugned order, submit that since neither bidding process was conducted in a fair manner nor reserve price was fixed according to the notification issued by the competent authority, the order regarding confirmation of auction in favour of petitioner no,1 was rightly withdrawn/cancelled; that since the formal transfer letter was not issued in favour of petitioner no,1, no vested rights accrued in his favour; that one of the accused official, while applying for his release on bail in the aforesaid criminal case admitted that he did not participate in the bidding process; that according to the bidding sheet, the petitioner no,1 did not participate in the bidding process against plot no,37, New Muslim Town, Lahore rather two other persons, namely, Muhammad Arshad and Muhammad Ishaque were the only participants, thus the confirmation of auction in his name was dubious; that the incredibility of the bidding process stands established from the fact that the signature of petitioner no,1 on the bidding sheet and other related documents, being relied upon by petitioner no,1, differ from his signature on his National Identity Card; that since this court ordered for fresh decision of the matter vide order, dated 24-12-1998, passed in Writ Petition no,19616 of 1998, respondent no,2 rightly withdrew/cancelled the confirmation of auction in favour of petitioner no,1 through order dated 23-9-1999 whereafter the amount received from the petitioner was not only returned through cross cheque but possession was also taken over by the LDA; that respondent no,2 cancelled/withdrew the confirmation of auction in favour of petitioner no,1 in good faith just to save National Exchequer from the loss of million of rupees as the adjacent plot in the same scheme was auctioned at much higher price as compared to the bid allegedly offered by petitioner no,1; that when the authority has taken any step in the national interest, the same cannot be declared unlawful in a casual manner until and unless it is proved so. In addition to his oral submissions, learned counsel has also relied upon the cases reported as Aziz Fatima v. Punjab Public Service Commission (PLC 2000 (C.S.) 1260) and The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another (PLD 1992 SC 270).
5. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that objection raised by learned counsel for the respondents that reserve price could not be fixed below Rs,70,000 per Marla is irrelevant as the same was fixed for allotment of plot in the said scheme whereas the petitioner purchased the plot through open auction, thus the same could not be used against the petitioner; that the petitioner has not received the amount deposited by him towards the consideration amount rather the same has been misappropriated by the respondents just to deprive him of the said amount.
6. In furtherance of his earlier arguments, learned counsel for the respondents state that reserve price for auction is fixed according to the notification issued by the competent authority for the respective year and the document being relied upon by the respondents being public document no exception can be taken thereto.
7. I have given patient hearing to learned counsel for the parties in addition to scanning the documents annexed with this petition as well as attached with the report and parawise comments and the subsequent applications filed by learned counsel for the respondents in addition to the case law cited at the Bar.
8. The crux of grievance of the petitioner is that after having been declared as successful bidder against plot no,37, New Muslim Town, Lahore, petitioner no,1 paid amount of consideration and he was put in possession thereafter the respondents could not withdraw the confirmation of auction in his favour. In my humble opinion to resolve the controversy between the parties, a perusal of the Public Advertisement got published by LDA authorities in Daily Nawa-e-Waqt dated 25-3-1995 qua auction of plots in different schemes is conducive as one of the reasons advanced by respondent no,2 is that reserve price was not fixed according to the rate determined by the competent authority. It is interesting to note that no reserve price was fixed in the said. Proclamation. In this view of matter, the assertion of petitioner no,1 that as he offered Rs,52,000 per Marla against reserve price of Rs,50,000 per Marla, his bid was rightly accepted, has no legs to stand.
Consequences of non-mentioning of reserve price in the proclamation of auction have been elaborated by the apex Court of the Country in the case reported as Lanvin Traders Karachi v.
Presiding Officer, Banking Court no,2,. Karachi (2013 SCM R 1419) by inter alia observing as under:--- "Agreed that the expression "reserve price" does not find mention in the relevant rule but the words used in the rule pointedly hint thereto. A sale, in its absence, is apt to give walkover to manoeuvrers to fix any price of their choice. A sale thus effected is no sale in the eye of law especially when the number of bidders is meager, which, indeed is close to nill. A superstructure of sale built on such a shaky infrastructure cannot sustain itself. Neither the buttress of limitation nor the ministerial nature of the rule can prevent it from a fall. We, therefore, are constrained to hold that the whole proceedings from inception to the end have not been held in accordance with law and thus cannot be blessed with any sanctity."
' The ratio decedendi of the afore-referred judgment of the Hon'ble Supreme Court is that omission of reserve price in the proclamation of auction is fatal. Further if we consider the case of the petitioners on the touchstone of aforequoted judgment of the Hon'ble Supreme Court of Pakistan, it comes to lime-light that the proclamation very basis of the auction was defective thus the subsequent superstructure erected thereon cannot be let go unnoticed while pressing into the principle of locus poenitentiae.
9. There is no cavil with the preposition that when a decisive step has been taken towards implementation of an order, the executive authorities can rarely be allowed to retract from their act but when the very basis of an act is spurious or offends against the A dictum laid down by apex Court of the Country the same cannot be allowed to survive under the umbrella of principle of locus poenitentiae. Reliance in this regard is placed on the case reported as Muhammad Sidiq through L.Rs, v. Punjab Service Tribunal, Lahore and others (2007 SCM R 318) Abdul Hague Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others (2000 SCM R 907). In the case of Muhammad Siddique (Supra) the apex Court of the Country while dealing with the question regarding powers of the Executive to recall an order has inter alia observed as under:--- * * * * It is a settled proposition of law that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order and in such situation, the principle of locus poenitentiae is not attracted..............."
' Likewise in the case of Abdul Haq Indhar (supra), the Hon'ble Supreme Court of Pakistan while clinching the issue under discussion has laid law to the following effect:- "It was further observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order."
10. Learned counsel for the petitioner has emphatically argued that order regarding withdrawal/cancellation of confirmation of auction in favour of the petitioner no,1 was purportedly passed on the basis of order, dated 24-12-1998, passed by this court while disposing of Writ Petition no,19616 of 1998 but no such direction having been passed in the said order, the very edifice of recalling of the order of confirmation of auction in favour of the petitioner was not justified, thus the same cannot allowed to hold the field even for a moment. In this regard, I do not find myself in agreement with learned counsel for the petitioners for the reason that while disposing of above writ petition, this court inter alia observed as under:--- "As far as the sanction of plan is concerned, it may be observed that mere pendency of any criminal, investigation, will not be a justification for postponing the issue pertaining to the issuance of final transfer letter or sanction of building plan. The Department will have to take a decision as to whether it owns the transaction or it intends to challenge it. Obviously, if the decision is to cancel the allotment, then the petitioner will have to be heard before any order adverse to his interest can be passed. The matter cannot be kept in abeyance for an unlimited period as decision has to be taken one way or the other. The respondents having received the total bid amount along with other charges cannot sit over the matter and postpone the issue in the garb of pending investigation with the Anti-Corruption Department. The respondent no,1 shall, therefore, take a final decision, after hearing the petitioner, in accordance with law after considering the circumstances noted supra and also the after effects of the proposed decision. (emphasis provided)
' This petition is, therefore, disposed of with the direction that respondent no,1 shall take a final decision, within one month, after hearing the petitioner in accordance with law and if the petitioner is not satisfied with the outcome thereof he can avail the remedy in accordance with law for the redress of his grievance."
' If the plea of the petitioners is adjudged while putting it in juxtaposition with the afore-quoted order, the answer, in definite, is that this court observed that the department should decide as to whether they owned the confirmation of auction in favour of the petitioners or they intend to cancel the same. Thus it cannot be presumed that order regarding withdrawal/cancellation in favour of petitioner no,1 was cancelled while illegally relying upon the earlier order of this court.
11. Another interesting feature of the present case is that as per documents subsequently placed on record by the respondents show that as per bidding sheet, the petitioner did not participate in the bidding process against the plot in question. If the petitioner did not participate in the bidding process against the plot in question, the confirmation of bidding in his favour and subsequent events are inconsequential. Though to controvert the said plea of the respondents, learned counsel for the petitioners has argued that though besides other persons, petitioner no,1, along with his employee, namely, Muhammad Ishaque was present at the time of bidding thus his name was rightly incorporated as successful bidder against plot no,37, New Muslim Town, Lahore. The admission by the petitioners that at the time of bidding Muhammad Ishaque, employee of petitioner no,1 was present there, lends support to the respondent's plea that as a matter of fact, Muhammad Ishaque participated in the bidding process whereas the auction in the name of petitioner no,1 was confirmed due to active collusion of officers/ officials of LDA. If it is established on record that the auction was confirmed in the name of a person who did not even participate in the bidding process, he cannot take any premium on the ground that his case falls within the purview of principle of locus poenitentiae. While ensuring fundamental rights of the individuals as guaranteed under different provisions of the Constitution of Islamic Republic of Pakistan, 1973, this court has equal responsibility to ensure the protection of National Exchequer from looters and plunderers and a cursory glance over the afore-stated events of the instant case is sufficient to show that LDA authorities fully sided with petitioner no,1 while causing monetary loss worth millions of rupees to the National Exchequer and if such events are left unnoticed, there would hardly be a restraint against misappropriation of the National Exchequer by the unscrupulous persons.
12. Learned counsel for the petitioner has vehemently argued that after receipt of entire amount of consideration, petitioner no,1 executed agreement to sell in favour of petitioner no,2, the withdrawal of confirmation of action in favour of petitioner no,1 is not only against his interest but the interest of petitioner no,2 as well. In this regard, I am of the humble view that though petitioner no,1 had power to get the plot transferred in the name of anybody else but the said fact does not lend any support to the petitioner's plea that due to mere execution of agreement to sell, certain rights accrued in favour of petitioner no,2 against the respondents as just execution of agreement to sell does not create any title in favour of a party except to provide cause of action to the vendee to file a suit for specific performance.
13. Even otherwise if the plot is not transferred in the name of the petitioner no,2, he reserves his right to sue against petitioner no,1 for return of his amount and other charges etc. But he has no cause of action to file any proceedings against the LDA authorities till this moment.
14. While going through the documents annexed with this petition, I have noted that respondent no,2, while passing order regarding withdrawal/cancellation of confirmation of auction in favour of the petitioner and subsequent orders pursuant to the directions issued by this court, observed in unequivocal words that neither the bidding process was fair as the same was undertaken in violation of relevant law nor the petitioner participated in the said process thus no vested right accrued in favour of petitioner no,
1. At the cost of repetition it is observed that since reserve price was not fixed in the proclamation of auction, the question as to whether the same was according to the rate prevalent at that time or not is secondary in nature.
15. Learned counsel for the petitioners while agitating mala fide on the part of respondents has argued that though according to the documents submitted by respondents, the confirmation of auction from the name of petitioner no,1 was withdrawn in the year 1993 but the fact that the amount was allegedly returned to him in the year 2007 speaks volume about uncalled-for conduct of the respondents. The said assertion does not appeal to reason when the same is considered in juxtaposition with the fact that after withdrawal of confirmation of auction in his name, petitioner no,1 remained locked in litigation with respondents till today. Since the order regarding withdrawal/cancellation in favour of petitioner no,1 was passed consequent upon decision of Writ Petition no,19616 of 1998 on 24-12-1998 and prior to filing of writ petition by the petitioners in the year 2004, no exception can be taken against the said order merely on the ground that the same was passed during pendency of litigation between the parties.
16. There is no cavil with the preposition that the initial order regarding withdrawal/cancellation of confirmation of auction in favour of the petitioner no,1 was set aside by this court though order, dated 24-11-2004, but the same stood revived as the same was upheld by respondent no,2 after taking up the matter pursuant to remand order by this court.
17. It is not the case of the petitioner that order regarding withdrawal/cancellation of auction in favor of petitioner no,1 was passed during subsistence of an injunctive order passed by any court of competent jurisdiction. This being the position, no exception can be taken by this court to the impugned order merely on the ground that the same was passed during pendency of litigation between the parties.
18. As far as the argument of learned counsel for the petitioner that the stance of the respondents during course of hearing of different petitions was not consistent is concerned, I, with a view to appreciate the contention of the learned counsel for the petitioners, have gone through the report and parawise comments submitted by the respondents in different writ petitions, including the present one, filed by the petitioners. During the said process, I have noted that the stance of the respondents qua non-participation of the petitioner in bidding process and non-fixation of the reserve price according to the relevant law is consistent. Submission of certain documents by the respondents at subsequent stage does not mutilate their authenticity especially when the same stand corroborated from surrounding circumstances.
19. Now coming to the contention of the learned counsel for the petitioner, that petitioner no,1 has never received back the amount paid by him in lieu of the price of the plot, I am of the view that the said question cannot be decided in these proceedings as on the one hand the respondents have adopted the plea that the same was returned to petitioner no,1 whereas on the other hand the petitioners have refuted the repayment of the same. In this state of affairs the dispute between the parties cannot be decided without recording of evidence which in my humble opinion, cannot be undertaken in these proceedings rather for the purpose, the parties would have to approach the quarter concerned.
20. As far as, the case law relied upon by learned counsel for the petitioners is concerned, in my humble view the same is not applicable to the facts and circumstances of the present case for the reason that the process of auction being untenable, the subsequent proceedings cannot be allowed to hold field under the shadow of the principle of locus poenitentiae. Moreover, the case- law referred to by the learned counsel for the petitioners is of no help to them when the same 'Considered while placing in juxtaposition to the judgments of the Hon'ble Supreme Court quoted above.
21. During the course of scrutiny of documents I have observed that while coming to know about the illegalities committed by the officers concerned towards the public auction, while withdrawing/cancelling confirmation of auction in favour of petitioner no,1 criminal case was also lodged against the delinquent officers/officials, thus it was not a simplicitor case of recalling of an administrative order.
22. As a necessary corollary to the discussion made in the preceding paragraphs, I have no doubt in my mind to hold that as no reserve price was fixed in the proclamation of auction, the entire super structure raised thereon falls to the ground. Further the participation of petitioner no,1 in the bidding process against plot in question has not been established. In this backdrop, I see no force in this petition which is dismissed with no order as to cost.