IJAZ ANWAR, J. The instant writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayers: "It is therefore respectfully prayed that on acceptance of this writ petition, the Hon'ble Court may please. i. Declare the impugned order dated 20.10.2022 passed by the Hon'ble KP Mine and Minerals Appellate Tribunal, Peshawar (In Appeal No.SO(Appeal) MDD/309-ML/2022 as Illegal, unlawful and ineffective upon the rights of the petitioners. ii. Declare the auction awarded to the respondent No.5 as illegal and against the law. iii. Direct the respondents-Mines and Minerals Department to re-advertise the subject auction/bid. iv. Direct the respondent No.8/Anti Corruption Department to initiate inquiry in respect of the subject auction. v. Any other order deems fit, may also be passed."
2. The respondents (Mines and Minerals Department) advertised open auction for mines and minerals and invited applications through Daily AAJ on 19.9.2022 for grant of Minor Minerals lease for District Lakki Marwat and Rs. 5,21,96,100/- was fixed as reserve price. The auction was held on 13.10.2022 wherein no one fulfilled the criteria. The application of respondent No.5 was rejected due to low reserve price i.e. Rs. 1,41,00,000/- vide letter of the Assistant Director (Tech) Minerals Development, Lakki Marwat dated 13.10.2022 and letter dated 19.10.2022 of the Director General Mines and Minerals, Govt: of Khyber Pakhtunkhwa, Peshawar. Petitioners are aggrieved of the order dated 20.10.2022 passed by the Khyber Pakhrunkhwa Mines and Minerals Appellate Tribunal, Peshawar whereby the appeal of the respondent No.5 filed by him against the order dated 19.10.2022 was allowed.
3. Comments were called from respondents which were accordingly submitted wherein the issuance of desired writ has been opposed.
4. Arguments of learned counsel for the parties heard and record perused.
5. Perusal of the record reveals that vide Notice for Auction dated 19.4.2022, the District Auction Committee of District Lakki Marwat invited applications from the registered contractors of Minor Minerals for participation in auction and grant of Minor Minerals lease for whole District Lakki Marwat under provision of section 78 subsection (3) of the Khyber Pakhtunkhwa Mines and Minerals Act, 2017 for mining and already granted valid areas for a period w.e.f 25.10.2022 to 24.10.2023 on the basis of "As is where is" against "Reserve price" of Rs.5,21,96,100/- with call deposit of Rs. 1,30,49,025/- Except respondent No.5, none participated in the auction proceedings in view of exorbitant reserve price. It appears that the respondent No.5 has deposited the call deposit of Rs.
1,30,49025/- and has also offered a bid price of Rs.1,41,00,000/- which was much below from the reserve price. The matter was deliberated, however, a letter dated 13.10.2021 was issued for rejection of the minor minerals auction for the reason of bid much below the reserve price. Accordingly vide letter dated 19.10.2022, the Licensing Authority approved the recommendation and bid was rejected. Interestingly, the respondent No.5 submitted appeal before the Tribunal on 20.10.2022 and on the same date, it was allowed declaring the offered bid of Rs. 1,41,00,000/- as reasonable and the order of the Licensing Authority dated 19.10.2022 was set aside.
6. Though in the comments, the respondent Department have supported the order of the Appellate Authority, however, during the course of hearing, it was conceded that no notice was issued to the Department in the matter. There is no cavil to the proposition that the Licensing Authority has the discretion to accept or reject the highest bid received in an auction for reasons to be recorded in writing in cases of open auction, however, in the instant case, the respondent department by their conduct have specified a reserve price of Rs. 5,21,96,100/- and also specified call deposit of Rs.
1,30,49,025/- which apparently demonstrated to the desirous contractors to give their bid above the reserve price because it is admitted at the bar that reserve price means the minimum price fixed for such auction. Thus where it was later considered that the reserve price was exorbitant, in such case, after the rejection of bid below the reserve price the minor minerals should have been re-auctioned with a reserve price which the Department was of the view to be reasonable. The Tribunal has shown much haste in the decision of the case by deciding it on the same day and allowing the offered bid of the respondent No.5.
7. According to Business Dictionary.com "Reserve price" means lowest fixed price at which an item is offered at an auction sale and (1) at which it will be sold if no higher price is bid, or (2) below which the seller is not obligated to accept the winning bid." Thus fixation of the reserve price is intended to be an internal guide to the Government in taking a decision as to whether or not to carry out a sale of the property at the highest price bid. Similarly, deviation from the sale price is apt to give walkover to maneuvers to fix any price of their choice and a sale thus effected is no sale in the eye of law. Reference can be made to the case titled "Messrs Lanvin Traders, Karachi Presiding Officer, Banking Court No.2, Karachi and others" (2013 SCMR 1419).
8. Though, the petitioner have not participated in the bidding process, albeit as explained by them that it was beyond their means to offer a bid above the reserve price and that even otherwise, it was legally impracticable to give a bid below the reserve price. The purpose of fixation of reserve price in proclamation is that the right and interest of the government is safeguarded and that the bid was to start from the figures mentioned as reserve price. Thus, whatever the respondent Department has represented to the general public while putting the minor minerals for auction is to be followed in letter and spirit and in case at some later stage, they find that the reserve price was exorbitant and not reasonable, then the area of minor minerals should have been re- auctioned with a reduced reserve price or even through an open auction without mentioning the reserve price if the law/rules permit.
9. In view of the above, we find that the Tribunal has passed an order which is without jurisdiction and has decided the matter without adhering to the "reserve" price mentioned in the advertisement and thus deviated from the rules/law by allowing the appeal. Accordingly, the order of the Tribunal dated 20.10,2022 is set aside and that order of the Licensing Authority dated 19.10.2022 for re-auction is restored.
10. Learned counsel representing the respondent No.5 at this stage stated that he has already submitted a call deposit of Rs.1,30,49,025/- and that he will suffer as the work order has already been issued and respondent No.5 is extracting minor minerals. In the given circumstances, we direct that the work on the extraction of the minor minerals be forthwith stopped and the area be put to re-auction and after the re-auction proceedings, the amount already deposited by respondent No.5 be adjusted accordingly in case he remained successful in the bidding process otherwise the remaining amount be worked out and be returned to him.