' SALEEM AKHTAR, J.---The appellant by the leave of the Court has challenged the judgment of the High Court whereby its Constitution petition filed against the order of the Tribunal constituted under Martial Law Regulation 57 (Amendment) Ordinance, 1989, was dismissed and the transaction of lease of land claimed by it was not confirmed.
2. The dispute relates to land bearing Survey No, 54 measuring 12 acres and 4 Ghuntas situated in Deh Surjani, Taluka and District Karachi. It is an evacuee trust land and was managed and administered by the Evacuee Trust Property Board. The land was first leased out to some other party particulars of which have not been mentioned in the appeal. However, the same was taken over under Martial Law Regulation 57 and was disposed of under para. 6 of the Regulation. Before disposal respondent No, 1 advertised in daily Jang Karachi datd 8-2-1986 and interested parties were asked to submit their offers for 99 years' lease. The appellant offered a bid at the rate of Rs, 1,62,500.00 per acre and submitted a pay order of Rs, 39,325.00, equivalent to 2 per cent. Of the total consideration of the land. The appellant's offer was highest amongst about 10 other participants and therefore it seems to have been accepted and the appellant was called upon through letter dated 27-2-1986 to deposit 25 per cent. Of the total consideration. The appellant complied with the request and deposited a pay order for Rs, 4,53,253.00 in favour of respondent No,1. The matter was not finalised and remained the subject-matter of further negotiations and meetings. Ultimately, it was decided on 29-9-1988 that the appellant shall pay 10 per cent. Over and above the total consideration which was accepted by it. Respondent No,1 did not grant lease and it seems that the matter remained without a final decision till Martial Law Regulation 57 (Amendment) Ordinance, 1989, was promulgated on 27-5-1989. As required by para. 6-A of Martial Law Regulation 57 as amended, the appellant filed application for confirmation of transaction which was registered as Application No,34 of 1989. The Tribunal after hearing the parties dismissed the Application mainly on the ground that the land was not disposed of through open auction as required by para. 6 of Martial Law Regulation 57, but by inviting bids and further that the disposal was not in small lots. The appellant filed Constitution Petition challenging the order of the Tribunal, but it was dismissed by the impugned judgment.
3. Leave was granted to consider whether disposal by inviting bids from all persons amounted to an open auction and whether the appellant had acquired any vested right in the land in dispute.
4. We have heard Mr. Syed Zaki Muhammad, learned counsel for the appellant and Ch. Fazal-e- Hussain, learned Advocate-on-Record for respondent No,1. The learned counsel for the appellant contended that the bid was invited by advertisement in a newspaper in which everyone was entitled to offer for the land and therefore it will amount to an open auction. The word "auction", as defined by various dictionaries means as follows:-- "The Oxford English Dictionary: "A public sale in which each bidder offers an increase upon the price offered by the preceding, the article put up being sold to the highest bidder."
' Chamber's Twentieth Century Dictionary: "A public sale at which goods are sold to the highest bidder."
' Black's Law Dictionary: "An auction is a public sale of property to the highest bidder by one licensed and authorized for that purpose."
' Ballentine's Law Dictionary: "A public sale of property to the highest bidder."
' Wharton's Law Dictionary: "Auction signifies generally an increasing, an enhancement, and hence is applied to a public sale of property usually conducted by biddings, which augment the price."
' In Corpus Juris Secundum 'auction' has been defined as follows:-- "An auction is a public sale of property to the bidder, by one licensed and authorized for that purpose. The main purpose of auction sales is to obtain the best financial returns for the owner of the property sold; and they are based on the purpose and policy of obtaining the worth of property by free and fair competition among the bidders; and hence competition among a number of bidders is a necessary clement.
' A sale by consecutive bidding intended to reach the highest price of the article by exciting competition for it."
' Auction is a recognized mode of sale of property originated with the Romans "in the disposition of military spoils" conducted "under the spear" which was stuck in the ground on such occasions. With the passage of time all such practices became obsolete but auction continued to be an accepted mode of sale. It attained statutory recognition as provided in section 64 of the Sale of Goods Act, Order XXI, rule 65, C.P.C. And many other statutes. Section 58(2) of the U.K.'s Sale of Goods Act, 1893 provides for sale by auction. An open auction means a public sale where bidders have the opportunity to compete with each other and raise their bid before acceptance. In such auction there is an element of open competition between the bidders where one knows the bid offered by the other and has the opportunity to raise it and succeed to purchase as a highest bidder on acceptance.
' A hide is an offer to purchase the property put to auction. It can be made in any manner which signifies the intention to purchase at a particular price. As written in Corpus Juris Secundum "it may be made orally, as by words uttered aloud in the hearing of the bystanders or spoken privately to the auctioneer, or by a wink or a nod or by writing in words or figures or by letters. Secret signs between the bidder and the auctioneer should not be allowed ....". In open public auction the bid may be in any recognized or permitted manner in the presence and knowledge of all present at the auction.
' In an auction as distinguished from open auction bids can be invited in writing or in sealed cover to be opened on a fixed date. This would be a restricted auction. Such mode of auction unless prohibited by law can be adopted by the owner of the property. Mere fact that holding of such auction or inviting bids in cover has been publicised will not make it an open auction.
5. In the present case, considering the statutes right from the Settlement Laws till their repeal, the promulgation of MLR 57 and its amendment by Ordinance VI of 1989 suggest that the auction under para. 6 of MLR 57 should have been open to public after due publicity so that large number of purchasers may participate in it and compete with each other. It may be noted that the transfer of agricultural properties which were subject-matter of MLR 57 if disposed of by fraud, misrepresentation, illegally or otherwise was subject to review and confirmation by the authority. In this process the disposal of scheduled properties was examined and wherever it was not confirmed it was made subject to sale under para.
6. The entire exercise was to root out transfers made illegally or for any other reasons mentioned in the Regulation. The amendment however seems to cover even those lands which have been transferred under para.
6. It seems that the legislature was not satisfied with the disposal of the properties under para. 6 although it had suffered scrutiny at one stage. Therefore, under para. 6-A the properties transferred in any manner or sale under the Regulation were declared to have not any effect or create any right or remedy unless it was confirmed by a Tribunal appointed by the Federal Government. Applications for confirmation of such transactions were to be filed before the Tribunal within 30 days of the commencement of Ordinance VI of 1989. The Tribunal was required to complete its inquiry within three months and it was authorized under clause (iv) of para. 6-A to reject the application if in its opinion the transaction, contract, lease, right or transfer was not entered into, granted, created or effected in accordance with para.
6. Therefore, by this amending Ordinance another scrutiny of all such transactions, rights and agreements was required by a higher Tribunal. This was done with a view to purify the transactions which may have been obtained illegally or by corrupt practices. In the present case the auction was held by inviting bids and no effort was made to hold the auction publicly in open, which is not permitted under law.
6. Mr. Fazal-e-Hussain Chaudhry, learned counsel for the respondent has contended that the disputed property is a valuable property and it has been sold at a throw away price. Be that as it may, he still makes an offer that if the appellant is prepared to pay the present market price of the property the leasehold rights may be transferred to it on payment of such price. The offer made by the learned counsel for the respondent is fair and just. In the circumstances, we remand the case to the High Court to determine the present market value of the property and if the appellant is prepared to pay that price then after adjustment of the amount already paid by it, the leasehold rights may be transferred to it. However, in case the appellant is not prepared to pay the present market price as determined by the High Court, the respondents would be at liberty to dispose it of according to law.