NASIR ASLAM ZAHID, A.C J.- Petitioner in this Consitutional Petition is Abdullah & Co., a partnership firm and represented by Mr. G.H. Abbasi, Advocate. Respondent No.1 is the Province of Sindh and represented by Mr. Syed Sarfaraz Ahmed, A.A.G, Respondent No.2 is Union Council Darya Khan (hereinafter referred to as "the Union Council") represented by Mr. Jhamat Jethanand Advocate and respondent No.3 is M/s. Dewan Sugar Mills Limited (hereinafter referred to as "the Company") represented by Dr. Raees M. Mushtaq, Advocate.
Dear Sir, I, on behalf of M/s. Abdullah & Co., lo participate in public auction of Octroi contract of Dewan Sugar Mills of Union Council Darya Khan Soho,, reached the office of Union Council alongwith necessary papers and call deposit vide Pay Order No. SV/1 091126 Allied Bank of Pakistan, dated 21.4.1991 at about 10-45 a.m. After I reached the office of Union Council, the Chairman reached the office. After some time we were told that when A.D.I.G. Will come only then the auction proceedings will start. At about l2' O'clock the A.D.L.G. Arrived. After his arrival the Secretary of the Union Council informed us that the auction has been held. Sir, we ask you to let us know that when the auction was scheduled at 11.00 a.m. And when all the interested were present there when and in whose presence auction was held.
We, therefore, request you to please enquire into this misdeed and this fake auction should be set aside at once.
Dated:- 28.4.1991 For ABDULLAH AND CO., C.C. To : Dy. Commissioner, District Thatta".
4. The case of the petitioner is that no public auction took place on 28.4.1991 and the petitioner had complained in writing to the Assistant Director, Local Government, Thatta, who was present on the site on 28.4.1991 and was a witness to the fact that bids were not invited from interested bidders who were present in the office of the Union Council on 28.4.1991 and that no auction was publicly held. By their letter dated 5.5.1991, the petitioner complained to the Government, inter alia, stating that through an invisible deal between the Chairman of the Union Council and that Company, which happens to be situated within the territorial limits of the Union Council, on paper it was shown that some auction proceedings had taken place and the bid of Rs.
Ll lac supposed to have been made by the Company being highest was sent to the Government for approval. According to the petitioner, in an open auction, the highest bid would have been at least Rs. 15 lac and he offered to take the contract for Rs. 15 lac. It was also suggested that the auction be held under the supervision of District Auction Committee, Thatta. On receipt of the petitioner's representation, the Government by their letter dated 11.5.1991 directed the Chairman of the Union Council to reduction the contract with the reserved price of Rs. 15 lac, which had been offered by the petitioner, and the Assistant Director, Local Government, was directed to ensure compliance. The Union Council again got the notice published in newspapers on 27.5.1991 for re- auction on 28.5.1991, 30.5.1991 and 1.6.1991. According lo the petitioner, the auction could not be held on 28.5.1991 due to the visit of Chief Minister and on 30.5.1991 also the auction was postponed on the ground of insufficient publicity and no auction also took place on 1.6.1991. The petitioner placed all the facts on record by their letters addressed to the Government. The Assistant Director, Local Government, complained to the Government by his letter dated 5.6.1991 against the Chairman, Union Council, asking for suitable action to be taken against him. The Union Council with a view to give further publicity to the proposed auction again advertised for re-auction of the contract on 20.6.1991, 27.6.1991 and 29.6.1991. The petitioner, in response to this third public notice for auction, attended the office of the Union Council on 20.6.1991 but he was then informed that, under the directions of the Government, auction had been postponed and as such no auction took place. On further enquiries the petitioner came to know that the previous letter dated 11.5.1991 of the Government directing re-auction had been withdrawn and the contract was awarded to respondent No.3 for Rs. Ll lac on the basis of the so-called auction held on 28.4.1991.
5. The petitioners have challenged the award of the contract to respondent No.3 on the ground that no auction had taken place on any date and the award of the contract in favour of respondent No.3 was mala fide and also illegal. We have heard Mr.G.H.Abbasi, learned counsel for the petitioner, Mr. Syed Sarfaraz Ahmed, AA.G. For the Sindh Government, Mr.Jhamat Jethanand learned counsel for the Union Council and Dr. Races M. Mushtaq, learned counsel for the Company.
6. Mr. G.H. Abbasi submitted that the award of the contract without holding a public auction was against the mandatory provisions of Section 45(4) of the Sindh Local Government Ordinance, 1979 and rule 225 of the Octroi Rules, 1964. It was submitted that from the documents placed on record, including the report of the Assistant Director, it is apparent that the Chairman of the Union Council did not want the auction to lake place in public and as such the entire exercise on paper showing some auction to have taken place on 28.4.1991 was manoeuvred to give the cont -act to the Company. The award of the contract has been challenged on the ground of mala fide. It was then argued that the Government having once directed the Union Council to re-auction the contract of octroi after declining the recommendation of the Union Council for accepting the offer of Rs. Ll lac of the Company, could not accept the same offer later on. According to Mr.G.H. Abbasi, the Government had upheld the objection of the petitioner against the acceptance of the offer of Rs. Ll lac of the Company and, therefore, it was incumbent on the Government as well as the Union Council to hold a public auction with the reserved price of Rs.15 lac as offered by the petitioners.
According to the learned counsel, no reasons have been given for withdrawing the earlier orders not accepting the recommendation for award of the contract to the Company.
7. Mr. Jhamat Jethanand, learned counsel for the Union Council, submitted that on 28.4.1991 an auction had taken place and copies of the relevant record of the Union Council has been placed on the file of this petition as annexures to the counter-affidavit filed by the Chairman of the Union Council showing that several bidders had taken part in the auction and the highest bid of Rs. 11 lac was made by the Company which was communicated to the Government for acceptance but when the Union Council received the letter dated 11.5.1991 of the Government declining the recommendation of the Union Council (Export Tax) Rule, 1976. There are no allegations in the petition that the petitioner had intended to participate in the proposed auction which was to be held on 9th June, 1988 or that the petitioner had made preparations to take part in the proposed auction but was deprived of his right to participate in the proposed auction as the respondent No. 2 failed to hold the auction on the proposed date. Mere fact that the petitioner had a right to participate in the public auction alongwilh every other citizen of the country is not enough to maintain a petition able to show that he asserted that right or that the assertion of that right by him was defeated, 'denied' or adversely affected on account of some illegal action on the part of respondent (See Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 S.C. 223). As there is no assertion in petition that the petitioner had intended or had made preparations to take part in the proposed auction but was deprived of this right on account of illegal extension of lease by respondent No.1 in favour of respondent No.3 he has no locus standi to Tile this petition to challenge the grant of lease in favour of respondent No.3 by respondent No.1. The petitioner is accordingly not an "aggrieved person" within the meaning of Article 199 of the Constitution.
As observed, in the present case, the petitioner, in addition to the averments made in the memo of petition, has shown through his representations in writing and also through official documents that he had made preparations to take part in all the auctions and had gone to the office of the Union Council on all occasions to take part in the auction and in fact, on his representation, reauction was ordered.
2. Another preliminary objection raised by Dr. Raees Mushtaq on behalf of the Company was that alternate remedies of filing an appeal under section 108 of the Sindh Local Government Ordinance and a civil suit which was not barred in view of section 113 of the Government Ordinance were available and as such this petition is liable to be dismissed, In the facts and circumstances of this case, we have not been persuaded to dismiss this petition on the ground that the aforesaid alternate remedies were available. The rule that the High Court cannot entertain a Writ petition or a constitutional petition when other appropriate remedies are available is not a rule of law barring the constitutional jurisdiction of the High Court but it is a rule by which the Court regulates its jurisdiction. In the facts of this case, where the allegations had been made that the actions of the Union Council and the Government were arbitrary, unjust, unfair and mala fide and the said averments are prima facie supported by official documents and the time available with the petitioner to seek remedy being very short in which it could not reasonably be expected that the petitioner would gel adequate relief in alternate proceedings, in our view, no other adequate remedy was available to the petitioner, and as such this petition is not liable to be dismissed on the ground that an alternate remedy by way of appeal under section 108 6f the Local Government Ordinance 1979 was available or that a suit could have been filed.
3. The third preliminary objection raised on behalf of the Company was that in this petition questions of facts are involved and the controversy about the auction have taken place on 28.4.1991 or not being in dispute, the matter cannot be resolved in a constitutional petition. In our view, this petition can be decided on the basis of documentary evidence brought on record of this case without going into any disputed question of facts and as such this preliminary objection is also overruled.
4. The last preliminary objection raised in this case is that a contract has been executed in favour of the Company granting lease to it for the current year from 1.7.1991 to 30.6.1992 and, as over 4 months have now passed it is not a fit case where any relief can be granted to the petitioner. Dr. Raees Mushtaq relied upon the decision of this Court in the case of Parvez Samad Vs. Secretary to Government of Sindh. (1985) MLD 1087, where, while dismissing on several grounds a petition filed by the petitioners challenging the auction on the ground that the notice published in a newspaper about the auction did not come to their knowledge, a Division Bench of this Court observed as follows:-- "Lastly, since right of third party has come into existence and since right of auction is for a period of one year only and now about three months have already passed we would not like to interfere in the' exercise of the constitutional jurisdiction. The petitioner may, however, seek remedy if available under any law."
In our view, in the cited judgment, no principle of general application has been laid down that if the right auction is for a period of one year and that some period has expired, the High Court should not exercise constitutional jurisdiction. The decision to exercise discretionary constitutional jurisdiction depends on the facts of each case. On a particular set of facts, the High Court may decline to exercise such constitutional jurisdiction and on another set of facts it may exercise its constitutional jurisdiction. Details of the background about the three attempts to hold auctions and the complaints against the Chairman made officially by the Assistant Director of Local Government Department deputed to oversee the auction proceedings have already been given in sufficient detail in the earlier part of this judgment. As noted, the dates of the third auction according to the notice in the press were 20th, 27th and 29th. Of June, 1991, and when the petitioner and other bidders went to the office of the Union Council on 20.6.1991, they were informed that the auction would not take place and later on, after making enquiries, the petitioner came to know that on the basis of some auction held on 28.4.1991 the contract had been awarded to the Company for Rs. Ll lac inspite of the orders of the Government directing re-auction for which date notices had been issued in the press by the Union Council and other steps had been taken and immediately thereafter this constitutional petition was filed on 2.7.1991. The petitioner cannot be accused of laches in the matter. The petitioner has been diligently pursuing this matter through applications and representations in writing to the concerned functionaries and on coming to know of the award of contract to law. Wc may reproduce herein below Article 4 of the Constitution for the sake of ready reference:- "4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular-
(a) no action detrimental to the life, liberty body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
The petitioner, therefore, could not have been dealt with arbitrarily.
The competent authority may have discretion in the matter still then the discretion has to be exercised on well-settled principles, that is, it should be exercised in good faith having regard to all relevant considerations and for public purposes and in accordance with law and it should be exercised justly fairly and reasonably, It should not be exercised arbitrarily or capriciously."
In. The aforesaid judgment reference was made to a passage from "Judicial Review of Administrative Action" by SA. De Smith, page 252, Third Edition. In support of the principles enunciated as aforesaid, reliance was placed on Manthar Ali Jatoi's case, on the following judgments:- fil Syed Jaffar Hussain V/s. Additional Rehabilitation Commissioner- (1985 SGMR 1076); ()__ Federation of Pakist______________________________ ;________ SCMR 428);
(iii) Makramullah V/s Province of East Pakistan (PLD 1969 Dacca 417); and
(iv) Montgomery Flour and General Mills Limited V/sDirector. Food Purchases. West Pakistan (PLD 1957 Lahore 914).
It was then held in Manthar Ali M. Jatoi's case by this Court that discretion in that case had not been exercised on settled principle stated earlier in the said judgment.
Wc may also refer in this regard to two judgments by the Indian Supreme Court. In Ramana Dayaram Shett V/s. International Airport Authority of India (AIR 1979 S.C. 1628) it was held by the Indian Supreme Court as follows:- "Where the government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of larg,esse, the government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant.
The power or discretion of the government in the matter of grant of largesse....must be confined and structured by rational, relevant and nondiscriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the government would be liable to be struck down unless it can be shown by the government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
In the case of Harminder Singh Arora V/s. Union of India (1986) 3 Supreme Court Cases, 247, it was held that the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily.
16. As observed earlier, on the basis of the record, we have reached the conclusion that the action of the Government in scrapping the re-auction where the reserve price was notified as Rs.15,00,000/- (as offered by the petitioner) and confirmation of the bid of Rs. 11,00,000/- given by the Company about two months earlier and the award of the contract to the Company by the Union Council for the said amount are all arbitrary actions. No reasons at all have been given for the aforesaid action. In the circumstances the actions are also mala fide.
17. As a result, this Constitutional Petition is allowed and the award of the octroi contract and its confirmation by the Government in favour of respondent No.3, Dewan Sugar Mills Ltd., in the sum of Rs. 11,(X),000/- for the year 1991-92, are declared to be without lawful authority and of no legal effect. The Union Council may now hold fresh public auction for the award of octroi contract for the remaining period of the current financial year. The Union Council had acted under the instructions of the Government in awarding the contract to respondent No.3. The Union Council is free to take appropriate civil action for recovery of any amount to which it may have become entitled on account of the grant of this Constitutional Petition.
The petitioner is granted costs of this petition against all respondents.