SARDAR MUHAMMAD IQBAL, J.-The Government of Pakistan-- declared the Oriental Insurance Building situate on Shahra-i---Quaid-i-Azam, Lahore, as an enemy property. The Custodian of Enemy Property, consequent upon a decision by the West Pakistan Enemy Property Management Board to sell this building, invited tenders. The petitioner offered a bid of rupees fifteen lacs whereas respondent No. 4 Messrs National and Grindlays Bank (Lloyds Branch), Lahore, gave the highest bid of rupees seventeen lacs. Respondents 1 and 3, it is alleged, have sold away the property in dispute In favour of respondent No. 4 on the 17th of November 1970, by accepting the highest bid of rupees seventeen lacs. The petitioner represented to the Secretary and Custodian, Enemy Property Management Board, Government of Pakistan, with the prayer that respondent No. 4 being a foreign banking institution and not eligible under paragraph 4 of Vie Tender Instructions, issued by the West Pakistan Enemy Property Management Board, the bid offered by it be rejected. It is seated in the petition that the Custodian of Enemy Property, instead of taking any action on the representation filed by the petitioner, returned Cheque No. N/A 1618324, dated the 3rd of March 1971, for Rs. 18,762.50 which amount the petitioner had deposited as earnest money, under paragraph 6 of the Tender Instructions. This petition under Article 98 of the Constitution of the Islamic Republic of Pakistan (1962) read with the Provisional Constitution Order, 1969. Has been filed by the petitioner with the prayer that the disposal of the property is dispute in favour of respondent No. 4 be declared to by without lawful authority and of no legal effect.
2. The tenders were invited for the sale of the property. Both the petitioner and the respondent submitted the tenders. An advertisement inviting tenders for the sale of the property is notan offer but art invitation of an offer. The tender in law is only an offer for the purchase of the property and if the tender of a person, even if it is the highest, is not accepted, he cannot make a grievance of the fact. The offer a for the sale of the property does not give right to the offerer for its purchase. A tender only when accepted constitutes a binding contract; and unless the contract comes into existence the mutual rights and obligations do not arise. The grievance of the petitioner is that if the offer of the respondent had not been accepted, the property would have been sold to him, he beingthe person who had given the next highest offer. The expectation that his offer would have been accepted, by itself, does not create any right or interest of the petitioner in the property. He, therefore by the fact that the offer of the respondent is accepted does not suffer any loss of some personal benefit or advantage. This is the position of law, but the Enemy Property Management Board to obviate any doubt in the matter and to make it clear to the tenderer explained this position in the Tender Instructions. It was provided in instruction No.7 "Information as to the acceptance of a tender will be given In writing only after the tenders have been scrutinised and a decision taken by the Custodian. No right shall accrue in respect of any tender even to the highest tenderer prior to that decision; further the Custodian reserves the rights to refuse any or all tenders without assigning any reason whatsoever."
3. A petition under Article 98 of the Constitution can be maintained by an aggrieved person. The primary question to be examined, therefore, is whether the petitioner has any locus stands to challenge the impugned sale of the property, even if it be assumed that it suffers from any infirmity.
Learned counsel contended that the petitioner being a tax-payer had the locus stands in the matter, and drew our attention to paragraph 1 of the petition in which it is sated. "That the petitioner is a citizen of Pakistan. He pays income-tax to the Government and as such is interested in the performance of duties by the public functionaries in accordance with law and as will appear hereinafter, is a person aggrieved within the meaning of Article 98 of the Constitution." Reliance was placed on a judgment of a Division Bench comprising A. R. Sheikh and Shameem Hussain Kadri, JJ , reported as Muhammad Dan & Sons v. Province of West Pakistan (1), where Kadri, J., had observed: "I must however, clearly point out that if a petition had been moved on behalf of a tax- payer in that case perhaps its fate might have been different." It is obvious from the observation itself that it is not an adjudication by the learned Judges that a tax-payer is an aggrieved person and that he can maintain a petition under Article 98. The word "perhaps" leaves no room for doubt that the learned Judges had not given any finding on the question that a tax-payer is an aggrieved person and has the right to maintain a petition under Article 98. In fact, the petition itself was dismissed on the ground that the petitioners were not aggrieved person.
We would, however, like to observe that if a tax-payer is allowed to champion arid litigate such a cause there will be no end to litigation, because every tax-payer in his own right, will file a petition, and want its adjudication notwithstanding an earlier decision which could not operate as res judicata against him, he being trot a party inn the earlier proceedings. To concede this right will militate against the well-established principle that no one should be vexed twice over the same cause of action and also that there should be an end to litigation. It was obviously wish a view to achieving this end that the framers of the Constitution specifically provided that except in cases for writs in the nature of habeas corpus and quo warranto, in all other matters the petitioner should be an aggrieved person. We may, with advantage, quote the decision of the Supreme Court of United States in Commonwealth of Massachusetts v. Andrew M. Mellon (2) where dealing with the question whether a single tax-payer could challenge the enforcement of a Federal Appropriation Act on the ground that ft was invalid and would increase the burden of his taxes, it was observed "His interest in the moneys of the treasury-partly realised from taxation and partly from other sources-is shared with millions of others: is comparative y minute and indeterminable; and the effect upon future taxation of any payment out of the funds so remote, fluctuating, and uncertain that no baits is afforded for an appeal to the preventive powers of a Court of equity * * * * * If one tax-payer may champion and litigate such a cause, then every other tax-payer may do the (1) PLD 1969 Lah. 823 (2) 262 U S 447: 67 Lawyer's Edn. 1078 same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained"
Sutherland, J., who delivered the opinion of the Court quoted with approval the remarks in Cherokee Nation v. Georgia (5 Pet. 18 L Ed. 25) of Thompson, J., which were to the effect:- "It is only where the rights of persons or property are involved, end when such rights can be presented under some judicial form of proceedings, that Courts of justice can interpose relief."
In R. v. Lewisham Union ((1897) 1 Q B 498) it was observed that the legal right to enforce the performance of the duty must be in the applicant himself. The right, as held in R. v. London City Assessm ent p Committee ((1907) 2 K B 764) must be a specific right, as distinguished from a general interest in the performance of the public duty which a member of tire public has in common with the other member equally interested.
Where the applicant has no such immediate and particular interest in the performance of the act he cannot ask for a writ to serve some ulterior purpose of his own, as laid down in R. v. Governor, Bank of England ((1891) 1 Q B 785), or the purposes of some other person (See R. v. Liverpool Ry.
((1852) 21 Q B 284). In Rex v. Justices of Kingston ((1902) 86 L T 590) it was held that a writ cannot be issued directing a tribunal to review its decision, where the tribunal has exercised its jurisdiction, even though its decision be erroneous and there is no other way of having the duty performed.
Earlier in Ex parte: Sidebotham ((L R 1880) 14 Ch. D 458) the term "person aggrieved" was explained and it was held that a person aggrieved "'must be a man who 'has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." In Ex parte: Official Receiver In Re: Reed, Bowen 8c Co. ((1887) 19 Q B 174) Lord Esher, M. R. While accepting the definition of "person aggrieved" as given in Ex parte: Sidebotham, further observed: "It cannot mean wrongfully refusing him something, unless it be a refusal of something for which he had a right to ask, so that that definition of James, L. J., would mean "a 'person aggrieved' must be a man against whom a decision has beer pronounced which has wrongfully refused him something which he had a right to demand'". In Tariq Transport Co., Lahore v. Sargodha-Bhera Bus Service (PLD 1958 SC (Pak.) 437) Muhammad Munir, Chief Justice, observed: "in a petition for a writ the first question that the Court has to consider is whether the petitioner has the locus standi to invoke the extraordinary jurisdiction of the Court, and I consider it to be a basic principle that a person seeking judicial review of administrative or quasi judicial action must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained" and "that" the applicant must show that there resides in himself a legal right to the performance of a legal duty by the party against whom the mandamus is sought." In Masitullah v. Chief Settlement Commissioner (PLD 1965 Lah. 672), it was observed by Anwarul Haq, J., (as he then was, now the Chief Justice "It was contended by Mr. Ijaz Hussain Batalvi that as laid down by their Lordships of the Supreme Court in Sh. Rehmatullah v. The Deputy Settlement Commissioner, Centre 'A', Karachi and others (PLD 1963 SC 633), the appellant as a claimant bad a vested right in property forming part of the compensation pool and, therefore, he was not only entitled to its transfer, but also had a locus standi to agitate against the illegal transfer of this property to a local. It seems to us that the dictum of the Supreme Court in Rehmatulhth's case has no application to the facts before us. In that case, their Lordships were considering the question whether a non-claimant could claim a vested right in evacuee property which had once been included in the compensation pool, whereas in the instant case, according to the provisions of the Act itself, the appellant before us is not entitled to claim the property in dispute under the earmarking scheme. In these circumstances, it can hardly be urged that he has a vested right in this property. It has been repeatedly held by this Court as well as by the Supreme Court that if a petitioner has no locus standi in the matter, the Court is under no obligation, at his instance, to examine the entitlement of the respondent." It was held by Cornelius, C. J. In Imdad Ali Malik v. The Settlement Commissioner etc. Civil Petition for Special Leave to Appeal No. 172 of 1964, decided by the Supreme Court on the 29th of June 1964: "We declined to hear Mr. Muhammad Bakhsh Meer, who appeared for the petitioner, when he attempted to argue that the house could not, in law, go to the informer. It is clear that the petitioner has no vested right in the house, and that he has otherwise no locus standi, in these proceedings, to question the disposal of the house by the Settlement Authorities." In Abdul Qayyum v. Chief Settlement Commissioner (PLD 1968 SC 362), it was held: "Another aspect of the case is that Kirpa Ram building having been declared a big mansion neither appellant had entitlement to its transfer.
This affected their locus stands to challenge the transfer in favour of respondent No. 2" and it was further observed that Mst. Aisha Khatoon "did not approach the High Court to assert her personal right, but was acting as a benamidar for some third party. The writ petition filed by her for quashment of the order of Syed Hashim Raza was, therefore, liable to be dismissed for want of locus stand alone. As to locus stands of Ch. Abdul Qayyum it has been earlier brought out that he did not file any Settlement form for the transfer of the Kirpa Ram building. He had, therefore, no right to challenge the transfer in favour of the respondent No. 2." In Karam Bakhsh v. Muhammad Ashraf (1968 SCMR 740), their Lordships of the Supreme Court refused to review an earlier order on the ground that the petitioner himself having no right to claim any transfer, the High Court was right in holding that he had no locus standi to challenge transfer in favour of another person. In Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223), it was observed by his Lordship the Chief Justice of Pakistan "that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
Thus in order that a person is an 'aggrieved person' within the meaning of Article 98 he may not have right in strict juristic sense but he must show that he had a "personal interest in the performance of the legal duty" and that the non-performance of the duty is to result in the loss of some "personal benefit or advantage or the curtailment of a privilege". Unless he shows that he will lose' some benefit or advantage which he would have gained if the order was in accordance with law" be cannot be an aggrieved person. A tax-payer has no personal interest. It has never b: en held that a tax-payer has a "personal interest" in the performance of the legal duty by all the public functionaries in all cases. It has also nevi; beets held that if the order by a public authority is not in accordance with law or results into "loss of same personal benefit or advantage" to a tax-payer. A tax-payer cannot maintain a petition pro bono publico. In Muhammad Ismail v. Jafferi Begum (1969 SCMR 34), while holding that the petitioner could not invoke the writ jurisdiction of the High Court it was observed: "Indeed he does not lay claim to the disputed property, but attempted to act pro bono publico, on the allegation that Mst. Jafferi had not filed a proper Settlement form and was not in possession of the property transferred to her. The High Court has, in the circumstances, rightly dismissed the writ petition filed by the petitioner to call in question the transfer in favour of Mst. Jafferi Begum," In Abdul Hamid v. Settlement and Rehabilitation Commissioner (1971 SCMR 711) it was held: "The mere desire to bid for a property at an auction does not" make a person an aggrieved person." In Doaba Goods Forwarding Agency Ltd. v. Province of Punjab (1971 SCMR 527), it was held that the petitioners "had no entitlement to the disputed shop and consequently no locus standi to challenge the order of the Central Government transferring the shop to respondent No. 3." In Farida Khan v. Chairman, Karachi Municipal Corporation (1971 SCMR 109) it was held that "an owner had no locus standi to challenge the order for the reason that the tax was payable by the tenant." We may also refer to Mst. Ameenabai v. Karachi Municipal Corporation (1971 SCMR 80) where the facts were that the Municipal Corporation bad by its resolution dated the 8th of June 196% decided to sell the land in dispute to respondent at the rate of Rs. 10100 per sq. Yard. The petitioner having failed before the Commissioner in appeal filed a writ petition which was dismissed on the ground that since the had no legal sight to the grant of land she was not an aggrieved person within the meaning of Article 98. The Supreme Court maintained that view by observing "We are of the view that the petition under Article 98 of the Constitution was clearly not maintainable, as the petitioners had no legal right to the grant of the land which they could assert by way of a petition under the said Article." In this view of the matter, the petitioner has no locus standi to file the petition, he being not an aggrieved person, arid the petition merits to be dismissed on this ground.
4. However, we find that the petitioner cannot succeed on merits also. Tae contention of the petitioner is that the Bank is a foreign banking institution and the property could not be sold to it.
The learned counsel relies on instruction No. 4 of Tender Instructions which reads: "The tender if found to be "Benami" or the tenderer a 'Benamdar' or not a bona fide tenderer for himself, and/or for the benefit of citizen of a foreign country or a country or countries inimical to Pakistan, the tender shall be cancelled and the earnest money forfeited." The words on which reliance is placed are "for the benefit of a citizen of a foreign country or a country or countries inimical to Pakistan."
This condition can be attracted only if the tenderer is a citizen of foreign country which is inimical to Pakistan or it is for the benefit of a country which is inimical to Pakistan. It does not debar a foreign citizen or a foreign coun--try to be tenderer. The restriction to submit tender was imposed only on the countries which are inimical to Pakistan and their citizens. It is not the case of the petitioner that National and Grindlays Bank is a foreign banking institution of a country which is inimical to Pakistan.
5. The petition fails and is dismissed in limine.