' MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of Writ Petitions Nos. 510 and 5364 of 1992 which have been filed respectively by Mian Farooq Ahmad Sheikh and others (hereinafter referred to as ex-owners) and Mustehkam Cement Employees Management Group Trust and another (hereinafter referred to as employees).
2. Pakistan Cement Industries Ltd. Was a Company incorporated under the Companies Act, 1913 and was running cement plant. According to the averments made in Writ Petition No,510 of 1992, its shareholding was almost entirely owned by the ex-owners/petitioners in that petition and their family members.
3. On 2-1-1972, the control and management of the aforesaid Company was taken over by the Federal Government under the Economic Reforms Order (P.O. No,1 of 1972). Subsequently, the name of the Company was changed to Mustahkam Cement Ltd. In November, 1973, the entire shareholding of the Company was acquired by the Government under the Economic Reforms (Amendment) Ordinance, 1973 (Ordinance XVIII of 1973).
4. Under the Policy of the Privatization Commission the Federal Government decided to disinvest its shares in various Units including Mustehkam Cement Ltd. The Privatization Commission set up by the Federal Government through public notice invited offers for the sale of 79.26% shares on the terms and conditions set out in the public notice which, inter alia, provided that the previous owners/management of the Company shall have a right of first refusal at the highest bid received provided the previous owners/management takes part in the bidding except in cases where the employees have made the highest bid. This stipulation was apparently made to give effect to the provisions of Transfer of Managed Establishments Order, 1978 (P.O. 12 of 1978) as amended by Ordinance XV of 1991 and Ordinance XXXIII of 1991.
5. From the record, it appears that seven parties including the ex-owners gave their bid of which the highest bid was made by M/s. Calicon (Pvt.) Ltd. Of Rs,127 per share. The case of the ex-owners in their Constitutional petition is that they had asked the Presiding Officer to supply them with copies of the bids received from different persons but he declined to do so and advised them to approach the Privatization Commission. The ex-owners consequently asked the Privatization Commission through their letters dated 23rd, 27th, 28th and 31st October, 1991 for the copies of the bids and certain other documents.
6. The Privatization Commission vide its letter dated 18-12-1991 informed the ex-owners that the highest price for the shares had been offered by M/s. Calicon (Pvt.) Ltd. At Rs,135 per share and if they wish to purchase the shares at the aforesaid rate they should convey their acceptance within 15 days of the receipt of the letter failing which the offer was to stand cancelled. In their reply dated 28-12-1991, the ex-owners did not accept the offer made but objected to the price of Rs,135 per share on the premises that at the time when the bid took place the highest bid announced was Rs,127 per share and not Rs,135. It was also stated that the process of privatization was not transparent and the variation of bid from Rs,127 to Rs,135 per share was not legal and valid. It was further stated that M/s. Calicon (Pvt.) Ltd. Was not in a position to purchase these shares. In the end it was stated that: "In brief, subject to any response to our above comments and to our right to restitution of shares and other rights and reliefs, we have all intentions to exercise our rights as previous owners/Management if a real, valid and substantive offer is made."
' It was in these circumstances, that the ex-owners have filed Writ Petition No,510 of 1992 in which various prayers were made. Mr. Fakharud Din G. Ibrahim, ' Advocate, however, has confined his challenge only to the sale of shares in question.
7. The other Constitutional petition namely Writ Petition No,5364 of 1992 has been filed by the employees contending that in recognition of their preferential right to purchase the shares and pursuant to the decision taken in the meeting of Inter-Ministerial Committee of 15-10-1991, they were offered the shares of Mustehkam Cement Ltd. At the rate of Rs,135 per share vide letter, dated 14-3-1992 of the Privatization Commission which offer was accepted by them on 31-3-1992. On 4-6- 1992, the employees wrote to the Privatization Commission asking for extension of time for making the payment till 30-6-1992. The Privatization Commission accepted this request of the employees and informed them vide its letter, dated 6-6-1992 that their time stands extended till 30-6-1992 under the orders of the competent authority. Surprisingly, however, before the expiry of the aforesaid period, a letter dated 7-6-1992 was received by the employees from the Privatization Commission wherein it was stated that the matter had been reconsidered by the competent authority which has decided not to allow any further extension in time for payment and, therefore, the extension granted vide letter dated 6-6-1992 and the offer to purchase the shares stood cancelled. The employees after having unsuccessfully protested against this action have come to this Court by filing Writ Petition No,5364 of 1992.
8. During the pendency of these petitions, the ex-owners filed Civil Miscellaneous No,3 of 1992 praying for stay of sale of shares in question. The request was, however, declined by this Court vide its order, dated 27-7-1992 and instead it was directed that the auction of the shares should proceed in which the ex-owners may participate, if they so desire but final approval should not be granted pending adjudication of the matter. In the auction which took place on 29-7-1992, the highest bid of Rs,265 per share was made by M/s. Trade & Textile (Pvt.) Ltd. Which was subsequently impleaded as respondent No,6. Earlier on 15-7-1992, Raja Muhammad Akram, Advocate, learned counsel for Privatization Commission had stated that the bids received shall be placed before this Court for further appropriate orders in the matter. On 29-8-1992, an application alongwith the affidavit was filed by Raja Muhammad Akram, Advocate alongwith a copy of letter dated 12-8-1992 addressed to him by the Privatization Commission bringing these facts to the notice of this Court.
9. Mr. Fakharud Din G. Ibrahim, learned counsel for the ex-owners strongly contended that the ex- owners had a right under the law as also the terms of public notice itself to purchase the shares after matching the highest bid which in the present case, was Rs,127 per share and the refusal of the respondent-Government to sell the shares to the ex-owners at that price was without lawful authority. The learned counsel argued that the Privatization Commission could not after the receipt of bids negotiate with the highest bidder and increase the price from Rs,127 to Rs,135 per share and that the ex-owners were not under obligation to purchase the shares at the enhanced price. It was also pointed out that despite the best efforts made by his clients neither the copies of the bids nor the information as to how the price had been enhanced from Rs,127 to Rs,135 per share were supplied. It was stated by Mr. Fakharud Din G. Ibrahim that the ex-owners were ready and willing to purchase the shares at the rate of Rs,127 per share.
10. The learned counsel highlighted certain facts in order to show that the acquisition of shares and the taking over of the management virtually amounted to confiscation of property of the ex- owners especially when the provisions for payment of compensation were such which rendered the compensation worked out as wholly inadequate and illusory. On these premises it was argued that the ex-owners were entitled to the exercise of discretion vesting in this Court, in their favour.
11. The learned counsel for the respondents, have on the other hand, argued that the ex-owners were at no stage ready and will* to purchase the shares nor did they indicate their willingness to do so in categorical terms either at Rs,135 or even at Rs,127. It was explained that the highest bidder was asked to enhance the price to Rs,135 on the basis of the reference/reserved price fixed by the Government.
12. Although there is some force in the grievance voiced by Mr. Fakharud Din G. Ibrahim, learned counsel for the ex-owners that despite the efforts made by his clients they were not supplied the copies of the bids nor given other information asked for but a close look on the reply dated 28-12- 1991 sent by the ex-owners to the Privatization Commission in response to the offer made vide letter dated 18-12-1991 for the sale of shares would show that the ex-owners did not indicate their clear desire to purchase the shares either at Rs,135 or even at Rs,127. Instead a vague and highly evasive reply that the ex-owners had intention to purchase the shares as and when a real, valid and substantive offer was made which does not amount to the acceptance of the offer made by the Privatization Commission nor does it reflect the intention of the ex-owners to purchase the shares.
In these circumstances, we are inclined to give weight to the plea raised by the learned counsel for Privatization Commission and other respondents that the ex-owners were interested in delaying the matter rather than purchase of shares.
13. Another important and weighty reason as to why the Constitutional petition filed by the ex- owners cannot succeed is the development which took place during the pendency of these petitions which is that in the auction held on 29-7-1992, respondent No,6 had made the highest bid to purchase the shares at Rs,265 per share. The sale of the shares to the ex-owners at this stage at the rate of Rs,127 would entail colossal loss to the public revenue which cannot be countenanced by this Court in the exercise of its discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Although it is true that generally speaking rights of the parties as on the day of filing of the petition are to be determined but this Court cannot close its eyes to the subsequent development of which it is fully entitled to take notice.
14. Raja Muhammad Akram, learned counsel for Privatization Commission has brought to our notice various judgments from Indian jurisdiction in which while deciding the question relating to sale of public properties it has been laid down that it is the duty of the authorities concerned as also that of the Court to ensure that best possible available price is obtained. Reference may be made to M/s. Kasturi Lal Kakshmi Reddy and others v. The State of Jammu and Kashmir and another AIR 1980 SC 1992, Fertilizer Corporation Kamagar Union (Regd.), Sindri and others v. Union of India and others AIR 1981 SC 344, Ram and Shyam Company v. State of Haryana and others AIR 1985 SC 1147, Shri Sachidanand Pandey and another v. The State of West Bengal and others AIR 1987 SC 1109 and Haji T.M. Hassan Rawther v. Kerala Financial Corporation AIR 1988 SC 157. In this view of the matter we are not inclined to interfere with the refusal of the Privatization Commission to sell the shares to the ex-owners at the rate of Rs,127 per share. We may state that the ex-owners have never indicated their willingness to buy the shares at the price offered by respondent No,6.
15. Reverting to the other Constitutional petition, the argument of Raja Muhammad Anwar, Advocate that as the Government had itself agreed to extend the time for payment of the consideration and completion of other formalities till 30-6-1994 which fact was duly communicated to the employees, the same could not be subsequently recalled is unexceptionable. It is not the case of the respondents that the extension in time was procured through fraud, misrepresentation or that the same is tainted with any illegality. In these- circumstances, we are unable to see as to how the Privatization Commission could repudiate its acceptance to the variation of the terms of the agreement by extension of time for payment till 30- 6-1994.
16. Notwithstanding the above position, we are not inclined to interfere in the matter and direct the sale of shares at a price of Rs,135 per share, to the employees but Raja Muhammad Anwar, learned counsel for the employees on 14-2-1994 stated that the employees were willing to match the bid made at the subsequent auction and were willing to pay Rs,265 for each share. Raja Muhammad Akram, learned counsel for Privatization Commission accepted this offer but with the reservation that the employees should purchase the bonus shares at the same price which was not acceptable to Raja Muhammad Anwar, Advocate who submitted that the bonus shares have been issued during the pendency of this petition and in violation of stay order issued by this Court.
17. Raja Muhammad Akram, learned counsel for Privatization Commission sought time to obtain further instructions. On 22-2-1994 he stated that he had already filed an application in this Court on '22-8-1992 indicating the willingness of the Privatization Commission to transfer the shares at the price of Rs,265 and that if the offer made by the employees was acceptable he would have no objection but it be clarified that the profits which have accrued in the meanwhile shall not be passed on to them. But if they were willing to purchase the shareholding including the bonus shares at the value of Rs,265 they can also have the profit. Raja Muhammad Anwar, learned counsel for the employees stated that his clients were not interested to claim the profit from the Privatization Commission.
18. Mr. Fakharud Din G. Ibrahim, learned counsel for the ex-owners, however, opposed this petition on the plea that the shares were being purchased by the employees not for their own benefit but at the behest of respondent No,6 with which they have entered into an agreement. Reliance was placed by the learned counsel on the copy of the plaint of a suit filed by Abdur Rafiq and Muhammad Tausif Paracha against the employees, which has been annexed with the written statement of the ex-owners.
19. It may be that the employees and respondent No,6 have entered into an agreement of collaboration in order to purchase the shares but we find nothing in law which prohibits them from doing so. Be that as it may, the ex-owners have no locus standi to challenge either the sale of shares in favour of the employees or the agreement inter se between the employees and respondent No,6.
20. The next question which arises is as to the rights of Trade and Textile (Pvt.) Ltd. Which gave highest bid of Rs,265 per share. Mr. M. Saleem Sehgal, learned counsel for respondent No,6 has, stated that as the said respondent has entered into an agreement with the employees of collaboration, therefore, subject to the rights of respondent No,6 in the agreement, he does not have any objection to the acceptance of the Constitutional petition filed by the employees. In these circumstances we have arrived at a conclusion that it would be just and equitable to direct the transfer of the shares to the employees at the rate of Rs,265 per share and of the bonus shares at par value subject to any rights which respondent No,6 may have under any agreement with the employees as these bonus shares were issued during the pendency of these petitions despite the stay order issued therein. This is in accord with the arrangement arrived at between the employees, Privatization Commission and respondent No, 6 as was stated by their learned counsel before this Court.
' As a consequence of what has been stated above, Writ Petition No,510 of 1992 stands dismissed with no order as to costs while Writ Petition No,5364 of 1992 is accepted in the above terms. The Privatization Commission shall proceed further in the matter in the light of the observations made above. There shall be no order as to costs.