' S. IBNE ALI, ACTG. C.J.---This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed in the following circumstances:--
2. Commercial Plot No,8 situated at Sher Shah Road, Sadar Bazar, Nowshera belonged to the Cantonment Board, Nowshera. The lease rights of this plot were to be sold through public auction.
For that purpose, advertisements were published in the newspapers. The auction was held on 24- 4-1994.
3. Bidders 1, 2 and 3 were found to have offered highest bids. According to the terms of the auction they were required to deposit 10% amount of their bids at the spot before the close of office hours on 24-4-1994, but they did not care to comply with this stipulation and withdrew from the filed. The petitioner had secured fourth position in the auction, therefore, his bid was not covered by the terms of auction.
4. In the circumstances, sale of the plot in question was conducted through private negotiations. In this process, Muhammad Wali, the petitioner herein and Shah Gulab respondent No,5, who had earlier taken part in the auction on 24-4-1994, offered bids for the purchase of the plot in question.
5. Muhammad Wali offered Rs,1,60,00,000, petitioner offered Rs,1,70,00,000 and Shah Gulab respondent No,5 offered Rs,1,75,00,000 for the purchase of the plot. They requested for deposit of 10% amount of their respective bids. Their request was granted conditionally in the interest of the Board subject to the final decision of the Board/competent authority.
6. The Board considered the above three bids tendered before it through private negotiations. The bid of respondent No,5 was found highest, therefore, by resolution No,29 dated 28-4-1994 the Board approved the same in these terms: "Considered and resolved to approve the highest bid of Rs,1,75,00,000 offered by M/s. Shah. Gulab in the interest of Board as the Board will never get such a handsome bid in future. Sanction of the competent authority be obtained."
7. Pursuant to the sanction of the competent authority/Government of Pakistan, respondent No,5 was asked to enter into agreement with respondent No,1. The land was in due course transferred in his favour, vide registered deed dated 20-10-1994. The Board further approved the site plan df the site. Respondent No,5 started construction and spent considerable amount upon the plot.
8. The petitioner in the first instance chose to approach the Court of Senior Civil Judge, Nowshera, by filing suit for declaration and injunction. The defendants in the suit were summoned who appeared in Court and filed written statement raising objections to the maintainability of the suit on various grounds. It was, inter alia objected that the suit in the present form was not competent and that Government being necessary party should have been impleaded in the suit.
9. Faced with the above situation, the petitioner filed an application under Order XXIII, Rule 1, C.P.C.
For withdrawal of the suit with permission to file a fresh suit because of non-impleadment and other formal defects by reason of which the suit was not likely to succeed. This application was rejected by the Senior Civil Judge, Nowshera vide his order dated 11-12-1994. A revision petition against the said order is now pending decision before the learned Additional District Judge, Nowshera.
10. Notwithstanding the pendency of the suit and the revision application in the subordinate Civil Courts, the petitioner has filed this writ petition with a prayer that the action of the authorities transferring the plot to respondent No,5 be declared unlawful authority and of no legal effect and it be directed that the sale of the plot be confirmed in favour of the petitioner.
11. It may be stated that this writ petition was fixed for hearing in motion before us. The learned counsel for the petitioner and the learned counsel for respondent No,5, who appeared in C.M.
However, addressed us elaborate arguments which provided us an opportunity to dispose of the petition at the motion stage finally. The learned Deputy Attorney-General for respondents Nos.3 and 4 and the learned counsel for respondents Nos.1 and 2 also heard.
12. The learned counsel for the petitioner contended that resolution No,29 dated 28-4-1994 and the sanction of the Government with respect to the sale of plot No,8 in favour of respondent No,5 are unlawful and of no legal effect on the ground:-- ' Firstly that the resolution and the sanctions offend against the provisions of Rules 21 to 24 of the Cantonment Land Administration Rules, 1937 (hereinafter called the Rules). Secondly, that the sanction/approval of the so-called highest bid of respondent No,5 purportedly ' granted under Rule 24 of the Rules is no sanction/approval in the eye of law. He submitted that the offer of a person, who agrees to pay the highest amount on the date and at the time and place appointed for auction, can alone be the subject of sanction or refusal and no other offer made subsequent to the auction proceedings can be entrained and considered. Thirdly, that on deposit of 1/10th of the amount of his bid, a valuable right has been accrued to the petitioner.
13. The learned counsel further submitted that there are two methods for the disposal of the property, namely, (1) by way of open auction as laid in Rules 21 to 24 of the Rules and (2) by means of private treaty. He added that except these two methods there is no other option for the Board to follow. The submission of the learned counsel therefore, is that if the first option is adhered to, it must be strictly followed.
14. We have not been able to appreciate the above contentions of the learned counsel. The petitioner has not offered the highest bid on the date of auction, as the above arguments of the learned counsel convey. His submission that once auction is held under Rule 22, it must be strictly followed, in our view, would appear to be vague and incomprehensible. It is conceded that the petitioner was not a successful bidder. He turned fourth bidder in the auction proceedings. If the contention of the learned counsel prevails, it will mean that any bidder who has offered nominal bid in the auction will be entitled to the purchase of the land, in case the highest bidders violate the terms of auction laid down for them and withdraw from the auction proceedings. In that event, the provision of Rule 26 of the Rules bearing upon the private treaty will be superfluous redundant on the Statute for the purpose of auction proceedings. This situation will never be productive and beneficial to the authorities selling public properties through auction. It is for this reason that the Legislature in its wisdom has laid down in Rule 23 a condition that:-- "The successful bidder shall be required to deposit immediately 10 per cent. Of the amount of his bid and to sign an agreement consenting to forego the deposit in case the balance of the price is not paid within thirty days of the confirmation of the auction."
15. The learned counsel for the petitioner was unable to show us any law or proposition of law that if according to the terms of auction or for that matter in compliance with the provisions of Rule 23, the highest bidders failed to deposit 10% of the amount of their bids in the auction, the bid offered by the next bidder will be mechanically deemed to be the highest and sale of the property will be confirmed in his favour. We observe that such mechanism cannot be countenanced by law, because there will always be chances of disadvantages to the authorities selling public property through public auction.
16. On the view of the matter that we take we hold that the moment the successful highest bidders fail to comply with the terms of auction, the auction proceedings stand annulled and in the circumstances, there would be no legal hindrance in the way of authorities to dispose of the property in conformity to the provisions of Rule 26 bearing upon private agreement.
17. We also took notice of the contention of the learned counsel for the petitioner that contrary to the provisions of Rule 21 which envisage at least 14 days' time between advertisement and auction, the auction was held within short period on 24-4-1994. The contention has no force. The petitioner took part in the auction proceedings and at no stage he ever took objections before the authorities that the auction was held prematurely after the publication of the advertisement. The petitioner therefore, cannot be allowed to agitate a plea before this Court in the exercise of its writ jurisdiction which has never been his case before the authorities.
18. Now as the auction proceedings failed, the authorities disposed the lease of plot No,8 by private agreement in compliance with the provisions of Rule 26 of the Rules. This provision may be reproduced:-- "26 Disposal of Lease by Private Agreement.--Notwithstanding anything contained in rules 16 to 24, the Military Estates Officer may, in exceptional cases for exceptional reasons to be recorded in writing, and subject to the approval of the Central Government, or such other authority as the Central Government may appoint for this purpose, dispense with the deposit of the cost of survey and demarcation, as prescribed by rule 20, or with the auction of the lease, as prescribed by rule 22, or with both, and may lease any site by private agreement, at such rate of rent, and on payment of such premium, as the Central Government or the appointed authority may approve in each case: ' Provided that the concurrence of the Collector and the approval by the Officer Commanding the Station shall be obtained before application is made for the approval of the Central Government or the appointed authority."
19. There can be no dispute that the petitioner had taken part in the private negotiations conducted in conformity to the above provision. When the auction proceedings failed and did not bear fruit, the petitioner after two days on 26-4-1994 applied for the purchase of the lease rights of the plot in question offering Rs,1,70,00,000. Copy of his application dated 26-4-1994 has been placed on the record of these writ proceedings by respondent No,5 alongwith his written statement. The application is in vernacular and may better be reproduced:-- {{URDU TEXT}}
20. There is nothing in this application to show that the petitioner had protested before the authorities either before making this application or in the application itself that as the highest bidder withdrew from the auction proceedings, he being the next bidder the bid offered by him in the auction proceedings may be approved and sale of the plot in question be confirmed in his favour. Rather, on his own showing he acquiesced in the failure of the auction proceedings and thereafter participated in the proceedings of private negotiations, but when he lost the battle he addressed himself to Courts obviously in an attempt try his luck as a matter of sheer exercise. We are making these observations in order to throw light on the queer conduct of the petitioner. He is making approbation and reprobation. It is settled law that it is not permissible for a person to seek approbation and reprobation.
21. The learned counsel for the petitioner has challenged certain entries in the Public Record. Vide Annexure-2, in serial No,18 the name of Shah Gulab is written. The learned counsel referred to column No,1 against this name and submitted that in the amount of Rs,1,56,00,000 figure '6' has been tampered with. According to the learned counsel the whole proceedings are based on mala fide and the respondents were bent upon to benefit respondent No,5 in the auction proceedings.
22. We do not feel called upon to go into this question in the exercise of our writ jurisdiction. The question is essentially a disputed question. Assuming that the figure has been tampered with out of mala fide yet nobody will accept responsibility. Either party will raise allegations and counter- allegations that the alleged tampering has been made to their detriment. Further, without recording evidence and sending these documents with specific signature to the expert, it will not be possible to arrive at a correct conclusion. If it is proved that the figure has been tampered with out of mala fide, the further question will be as to who has tampered with it. In that event Officers for tampering with the Public Record will be prosecuted and in case of proof will be convicted according to law. As this question essentially entails inquiry and recording of evidence for proper decision, this Court is not a forum to go into it in the exercise of its writ jurisdiction. The contention of the learned counsel is, therefore, repelled.
23. The learned counsel for respondent No,5 while raising objection to the maintainability of this writ petition contended that the case involves disputed question of facts which cannot be resolved by filing affidavits unless evidence is recorded thereupon and as the petitioner has already filed civil suit, he was - wrong to seek relief from this Court in the exercise of its writ jurisdiction. He added that in order to suppress facts the petitioner has made a misleading statement that the respondent has surreptitiously entered into the arena. He referred to documents Annexures R-1 to R-23 duly attested by respondent No,l. He submitted that as these are public documents according to Articles 41, 85 and 129 (e) of Qanoon-e-Shahadat, 1984, it speaks eloquently that the respondent No,5 was interested in the legal purchase of the plot in question and was throughout conscious and aware of the situation right from the start of the auction proceedings till his offering for the purchase of the plot through private negotiations at higher rate than any one else. In this view, the contention ot the learned counsel is that the allegation of the petitioner that the respondent entered into the arena surreptitiously is simply invention which offers violence to the factual position on record. The learned counsel further contended that there is nothing in the grounds of the writ petition that the suit filed by the petitioner is not an adequate remedy. He relied on PLD 1963 Lahore 575.
PLD 1966 SC 639, PLD 1975 SC 244, 1986 CLC 1193, PLD 1967 Lahore 977, 1975 SCMR 489, ' to show that a party cannot seek two remedies on the same cause of action.
24. The learned counsel next contended that Civil Courts will become redundant if people are allowed to abandon their suits in the Civil Court and seek their relief from this Court in the exercise of its Constitutional jurisdiction.
25. The learned counsel further contended that after passing of the resolution and its acceptance the parties executed registered documents, the construction plan was approved by the Cantonment Board (respondent No,1) and construction upon the plot has been started. These developments were brought into existence before filing of the present writ petition at the belated stage which are attributable to the conduct of the petitioner as he was watching these developments but did not move in time. Referring to the principles of approbate and reprobate, the learned counsel submitted that a person cannot at the same time object to a certain thing and then take part in it. He added that if at all the action was not competent, the petitioner should have challenged the subsequent offer of respondent No, 5 in writ jurisdiction and should not have himself taken part in the bid proceedings through private negotiations making an offer in the said private negotiations. In these circumstances, the petitioner according to the learned counsel had acquiesced in the bid - proceedings through private negotiations and it is surprising that he now comes forward to challenge the proceedings before this Court in the exercise of its writ jurisdiction.
26. The learned counsel also criticised the conduct of the petitioner when he withdrew 1/10th of the bid amount during the pendency of the suit. In this connection, he referred to Annexure R-12 to show that the petitioner was no more interested in his cause. The learned counsel further submitted that at some stage there was status quo order but subsequently that order was not confirmed or extended, therefore, the petitioner allowed respondent No,5 to proceed with the finalization of the bid proceedings through private negotiations and consequently finality of the sale of the plot in favour of the respondent No,5 was completed without any stay order. There was then execution of the deeds and approval of the plan of the building by the Government. The respondent No,5 has started construction upon the plot. By now he has incurred heavy amount.
Winding up his arguments, the learned counsel urged that in all these circumstances obtaining in the case this writ petition is not maintainable.
27. The learned counsel for the petitioner was unable to make any satisfactory reply or explanation in rebuttal of the above factual position referred to by the learned counsel for respondent No, 5 and emanating from the record. He, however, urged that this writ petition is maintainable, though suit/revision petition are pending in the subordinate Civil Courts. The learned counsel referred to Article 199, Sub-Article (1) of the Constitution and submitted that if no adequate remedy is available to the petitioner, then in spite of the fact that he has filed civil suit, he can file writ petition which is speedy and adequate remedy. To elaborate his arguments, he relied on: PLD 1963 Lah. 575, PLD 1966 SC 639, PLD 1968 SC 131, PLD 1959 SC 177, PLD 1972 SC 279, PLD 1971 SC 130, PLD 1976 SC 37, PLD 1961 SC 119, PLD 1963 SC 322, PLD 1976 Lah. 726, PLD 1975 SC 244, PLD 1988 Lah. 325 and PLD 1982 Karachi 653.
28. In support of his stand that the petitioner has locus standi to file the present writ petition, the learned counsel relied on: PLD 1969 SC 223, PLD 1987 SCMR 2078, PLD 1991 SCMR 483, PLD 1976 SC 581, 1989 MLD 1999 (paras. 1, 25, 8, 9, and 10)
29. We have already examined the various contentions raised earlier by the learned counsel for the petitioner. We have also recorded in the arguments of the learned counsel for the respondent that there is nothing in the grounds of the writ petition that the suit filed by the petitioner is not an adequate remedy.
30. The learned counsel for the petitioner was unable to make any breakthrough on any factual or legal point arising in this case to persuade us to agree with him. The authorities relied upon by him are distinguishable from the facts and circumstances of the present case.
31. In particular, the learned counsel for the petitioner laid great stress on PLD 1982 Karachi, 653 which according to him is very exhaustive authority and all the other important authorities of the superior Courts, on the subject, have been cited in it. The relevant portion from the authority is reproduced below:-- "A review of the case-law shows that in certain cases the superior Courts of Pakistan did not allow the petitioner to invoke the writ jurisdiction on the grounds of availability of an alternate remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy, the Courts did not hesitate to exercise such writ jurisdiction and in fact granted relief to the petitioners. It may be expressed as a generally accepted principle, however, that just because an alternate remedy by way of appeal or otherwise is available to a petitioner the High Court will invariably decline to exercise their extraordinary Constitutional jurisdiction. The mere availability of an alternate remedy does not debar the High Courts from exercising such jurisdiction. The question whether a writ should be entertained when an alternate remedy is available is always one within the discretion of the Court. In cases of total lack or absence of jurisdiction or authority, or apparent excess of jurisdiction the Courts in general would not hesitate much in entertaining a Constitutional petition although an alternate remedy may well be available. In other cases, the Courts would generally direct the party to avail and exhaust the alternate remedies available first before entertaining the writ, if in the opinion of the Courts the alternate remedy is an adequate remedy. Whether the alternate remedy available to the applicant who is seeking the Constitutional remedy, is adequate or not depends on the special or particular circumstances of the individual case, and it is precisely for this reason that in one case the High Court may not entertain the petition under its Constitutional jurisdiction and in another case the same may be entertained. In taking a decision whether the alternate remedy in a given case is adequate or not to enable the High Court to take the further decision relating to entertaining the Constitutional petition, the Court, in the background of the particular facts of the case before it, considers several factors. The question of speed and expense of the alternate remedy may be considered. Whether the alternate remedy is as effective or efficacious as the Constitutional remedy is also a relevant factor. Whether, in the circumstances of the case, the alternate remedy or the writ would be the appropriate remedy can also be a pertinent consideration."
32. In the facts and circumstances of the present case, this authority will not support the learned counsel. Rather, it goes against him. The ratio of this authority is that in a given case it depends upon the peculiarity of the case that High Court may exercise writ jurisdiction. It may further be observed that in a given case the High Court will consider the question whether the remedy available to the petitioner before the Tribunal or Court of competent jurisdiction would not be an adequate remedy which should provide an occasion to the High Court to go into it in the exercise of its writ jurisdiction. No ground is urged on the petition that it is a case of peculiar nature in which adequate remedy is not available to the petitioner, the moreso as he has filed suit in the case in the Court of Senior Civil Judge, Nowshera which is still pending. There can be no quarrel that various disputed questions of facts have been raised in the case, therefore, the proper forum established by law for the resolution of such questions is the Civil Court and the petitioner was properly advised to approach that Court. Even otherwise, as the petitioner has already filed suit in the Court of Senior Civil Judge, Nowshera, he cannot be allowed to agitate the same remedy before this Court in the exercise of its writ jurisdiction. In support of this view, we are fortified by an authority reported in 1975 SCMR 489 in which it is observed that:-- "It seems to us, however, that apart from the ground of delay, there is another hurdle in the way of the petitioners. They had already chosen their remedy and gone to the Civil Court to challenge the order of the Additional Settlement Commissioner. That suit is still pending. They could not, therefore, be allowed to agitate the same matter concurrently in another forum, namely; the High Court in the writ jurisdiction."
33. Another judgment reported in 1985 SCMR 1925 will further support the proposition that once a party has approached the Civil Court, subsequently it cannot choose other remedy on the same subject by filing writ petition unless his plaint has been rejected. The following headnote from the authority may be reproduced:-- "Arts.185(3) and 199--Constitutinal jurisdiction--Exercise of --High Court declined to interfere in its Constitutional jurisdiction in matter arising out of civil suit wherein plaint had not been rejected-- Other adequate remedy being available to petitioner, order of High Court, held, not open to interference."
34. Another authority reported in PLD 1983 SC 21 also supports the above view, wherein it is observed that:-- "Instead of raising the second jurisdictional question based on the status of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal which was as a matter of right and of wider scope petitioner sought to divert the normal remedial process provided by law, and invoked Constitutional jurisdiction of the High Court. It could be exercised only on proof of non-availability of adequate remedy. This proof is not forthcoming in this case. The petitioner had a right of appeal if any final decision would have gone against him. Much can be said on the question that this mode was adopted by the petitioner because he wanted to avoid enquiry on facts (if it was needed) and also wanted to delay the proceedings by raising piecemeal pleas of similar jurisdictional nature--one before the proper lower forum and the other in the High Court, in its writ jurisdiction. The matter in fact got delayed because if left to be processed as provided by the special law of summary procedures governing it, the same might have ended within months before the Rent Controller and some more months in appeal. Now it has taken nearly three years and one limb thereof is still being delated in the superior Courts. Apart from the delay the petitioner, whether intentionally or otherwise, has successfully avoided enquiry on the question of fraud and forgery--both on the rent side as also on the criminal side. Such could not be the results visualised either by Article 199 which conferred writ jurisdiction on the High Court, nor by the Rent laws which created special forums for speedy and summary disposal of these cases."
35. From the extracts of the above authorities, it is abundantly clear that if adequate remedy is available to a party before tribunal or Court of competent jurisdiction, then he is debarred to file writ petition in the High Court.
36. We may also take note of the delay in filing this writ petition as urged by the learned counsel for the respondent No,5. The auction proceedings were held on 24-4-1994. The resolution was passed on 28-4-1994 confirming the final bid of respondent No,5. As in the circumstances, the writ petition was filed on 2-1-1995 after about nine months, it is clearly hit by the principles of laches. In an authority reported in PLD 1993 Karachi 312 it is held that "Laches operates as a bar in equity while law of limitation operates as a legal bar to the grant of remedy."
37. The learned counsel for respondent No,5, therefore, rightly submitted that this writ petition has been filed just as a matter of sheer exercise in the air.
38. From the above discussion it is clear that in the present case the auction proceedings with respect to the sale of lease rights of plot No,8 did not fructify because none of the highest bidders complied with the terms of auction to deposit 1/10th of their respective bids. The authorities were, therefore, left with no option but to have recourse to the provisions of Rule 26 when bids were offered to them privately for the purpose of the lease rights of the plot in question. In the circumstances of the case we, therefore, do not see any illegality on the part of the authorities to sell the lease rights of the plot through private negotiations. The petitioner himself took part in the private bid proceedings, therefore, he cannot be allowed to contradict or challenge this aspect of the case before us. In the circumstances, he was on his own showing satisfied that the auction proceedings held on 24-4-1994 failed. Consequently H he tried his luck for the purchase of the plot through private negotiations. For that purpose he was one of the bidders in the private negotiations but to his misfortune he did not succeed, therefore, he cannot be allowed to question in writ jurisdiction before this Court the sale of the lease rights of the plot in favour of respondent No,5, through private negotiation in which he himself participated, but his attempt in this behalf failed.
39. Again no exception can be taken to the mode of disposal of property as special reasons have been given by respondent No,1 in para. (ii) of the resolution in the following words:-- "(ii) Considered and resolved to approve the highest bid of Rs,1,75,00,000 offered by M/s. Shah Gulab in the interest of Board as the Board will never get such a handsome bid in future. Sanction of the competent authority be obtained." (Underlining is mine).
40. Thus the action taken by respondents Nos.1 to 4 is in conformity with Rule 26 of the Cantonment Land Administration Rules, 1937, therefore, it cannot possibly be impugned before this Court in the exercise of its writ jurisdiction that the authorities have violated or disregarded any law and their impugned action is unlawful and of no legal effect.
41. In the above view and in all other circumstances discussed, we find no merit in this writ petition, which is accordingly dismissed in limine alongwith C.M. No, 7/95. These are detailed reasons for our earlier short order.