' This Judgment will dispose of Writ Petitions Nos.17600/95, 17601/95, 18468/95, 18472/95, 924/96 and 925/96 since they relate to the same controversy and common questions are arising.
2. Zila Council Mandi Bahauddin, acting through their Administrator, issued a proclamation in daily 'Musawat' and 'Pakistan' dated 17-11-1995, inviting bids for lease of the rights of collection of fee on the sale/purchase of animals taking place during the weekly cattle markets at Kathala Sheikhan and Gojra for the period 1-12-1995 to 30-11-1996. The case of Abdul Hameed, petitioner in Writ Petition No,17600/95, is that he was the highest bidder in the sum of Rs,5,10,000 for the Gojra Mandl.
According to him this bid was accepted by the Administrator on 26-11-1995. After payment of the requisite dues, a formal agreement copy Annexure "D") was entered into on 30-11-1995 and with effect from 1-12-1995 the petitioner started operations under the lease contract. The case of Haji Mukhtar Ahmad, petitioner in Writ Petition No,17601/95, is that his bid for Rs,19,12,000 in respect of Kathala Sheikhan Market was found highest on 23-11-1995 and the same was accepted on 26-11- 1995. He claims to have paid the requisite dues and similarly an agreement was executed in his favour on 30-11-1995 (copy Annexure "D"). He asserts that he started collection of fee with effect from 1-12-1995.
3. It is the case of both these petitioners that while they had already operated under the contract for a few days when, without prior hearing and notice, vide Annexure "F" dated 7-11-1995, the respondent-Administrator cancelled the lease/contract, allegedly under the orders of the Chief Minister, Punjab, as conveyed to the Administrator by Syed Jalil Abbas Shah, Secretary to the Chief Minister, on telephone at 11-30 a.m. This led them to file Writ Petitions Nos.17600/95 and 17601/95.
4. Writ Petition No,18468/95 has been filed by Haji Mukhtar Ahmad against the proposed fresh auction of the lease rights on 27-12-1995, as advertised in Daily "Jang", Lahore, dated 19-12-1995.
Similarly Writ Petition No,18742 of 1995 has been filed by Abdul Hameed, petitioner, against the same notice appearing in Daily "Jang" dated 19-12-1995 under the name of the respondent- Administrator, calling fresh bids on 27-12-1995.
5. One Gulnawaz Bhalli. Claiming to be a contractor and rival bidder, filed C.M.1/96 in Writ Petition No,17600 of 1995, seeking permission to be impleaded on the ground that in fact no auction took place on 23-11-1995 and that the whole exercise is sham and fictitious. A similar Application (C.M.1/96) was filed in Writ Petition No,17601 of 1995 on the identical grounds. During the course of hearing, these applicants have been fully heard and, as will be seen, their offer in respect of Kathala Sheikhan Market has been recorded and placed on record.
6. Writ Petition No,924 of 1996 has been instituted by another rival bidder/tenderer on the same grounds as urged by applicant Gulnawaz Bhalli and the prayer made is that the so-called auction allegedly held by respondent-Administrator on 23-11-1995 be declared as a hoax and sham transaction and that respondent-Administrator be directed to hold fresh auction of the lease rights in accordance with law. Writ Petition No,924 of 1996 concerns the Cattle Market of Kathala Sheikhan while the same Muhammd Javed Gondal has filed Writ Petition No,925 of 1996 in respect of Gojra Cattle Market. As noted, since all these petitions concern the same transaction and involve common questions, these are being disposed of jointly.
7. Keeping in view the gravity of the allegations, this Court directed the Secretary, Local Government and Rural Development Department, Province of Punjab, to have the allegation tentatively enquired into by an independent Officer and submit the report to this Court. The Secretary has submitted an application dated 3-3-1996 alongwith the copy of the report under the signatures of Muhammad Akram, Director (Monitoring and Audit), Punjab Local Government Board, Lahore, the Enquiry Officer. The Enquiry Officer has not given a positive finding as regards the factum of the holding of auction itself on 23-11-1995, although he states that auction sub- committee consisting of Ch. Muhammad Aslam, M.P.A., and Minister for Zakat and Ushr supported the holding of auction on 23-11-1995. According to the Enquiry Officer, only the rival bidders have stated before him that in fact the auction held on 23-11-1995 was fake. The Enquiry Officer has, however, found the auction held on 23-11-1995 to be illegal for non-compliance of rules 4 and 6 of Punjab Local Councils (Lease) Rules, 1990. In the end the report recommends that since the rival bidders have made an offer of Rs,60,00,000 for Cattle Market, Kuthala Shiekhan, this Court be pleased to order re-auction. The Secretary has agreed to re-auction but has suggested that the rival bidders be directed to enhance the deposit to one million each so as to substantiate their bona fides.
7-A It may also be noted that initially each of the rival bidders deposited Rs,6,00,000 and Rs,5,00,000 respectively, but after the receipt of the report of the Secretary, each of them deposited the balance so as to increase the deposit to one million each. The deposit-at-call slips have been handed over to the learned Additional Advocate-General for transmission to the Zilla Council to be dealt with as directed in this judgment.
7-B In support of the first four petitions, Dr. M. Mohyud Din Qazi, Advocate, has raised number of legal grounds like absence of prior hearing, absence of authority in the Chief Minister to direct the cancellation, absence of any order in law, inasmuch as, telephonic order is always followed by a written order and this has not been done in this case. He has further contended that once the agreement has been entered into, the same cannot be cancelled except by one of the contracting parties. Mr. Qazi has further dubbed the whole exercise as business rivalry and has maintained that the rival bidders are only trying to create mischief and that the value of the lease is what was the highest bid of his clients. He has also challenged the locus standi of the rival bidders. Learned counsel for the respondent-Administrator has supported the arguments of the petitioners and has maintained that the allegation of the auction being fake is incorrect and has not been established in two of enquiries held by A.D.C.(G) of the District and Anti-Corruption Establishment.
8. Mr. Ahmad Awais, Advocate, appearing for rival bidders, has defended the impugned order of the Chief Minister by asserting his clients' case on factual pleas. In his submission, the difference between the highest bid of the petitioner contractor and that of his clients is so enormous that this alone will be sufficient to establish that the auction dated 23-11-1995 was fake and sham. He reiterated that in respect of Cattle Market, Kathala Sheikhan his client Muhammad Javed Gondal's offer is Rs,60,50,000 for one year of lease and he states that this be directed to be the minimum auction price for the forthcoming fresh auction. He has also referred to the deposit of rupees one million in favour of Zila Council to vouchsafe the honest intention of his client and that of Gul Nawaz Bhalli. Mr. Ahmad Awais has also submitted that under rule 4 of the Local Councils (Lease) Rules, 1990, (hereinafter referred to as the Rules) minimum period of seven days is necessary between the date of proclamation in the newspapers and the date of auction. He submits that this rule is mandatory. According to him, the proclamation appeared in the newspapers on 17-11-1995, while the auction held on the sixth day, viz. 23-11-1995, is illegal. He has also reiterated the violation of rules 6 and 7 of the Rules to canvass that the auction dated 23-11-1995 is a mere paper work. For the violation of the rules 6 and 7, Mr. Ahmad Awais has fallen back upon the report submitted by the Secretary, Local Government.
9. Number of legal points urged at the Bar, particularly, regarding the nature of rule 4 of the Lease Rules and the effect of its violation need not be adjudicated and be left for consideration in some other appropriate case. Prima facie the rule is couched in affirmative and positive language and, keeping in view the object of rule 4 viz. Maximum publicity and knowledge to the prospective bidders, the rule seems to be mandatory. As I said above, this need not be further examined. It also goes without saying that an order passed without hearing is illegal and void and should normally be so declared. The question of the competence of the Chief Minister is also open to serious probe.
But the exercise of Constitutional jurisdiction under Article 199 of the Constitution is discretionary and its exercise can be declined where the impugned order promotes public welfare, even though it may be illegal. In Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), the Supreme Court went to the extent to lay down that even against the void order the High Court can refuse to interfere in exercise of writ jurisdiction since, as held, this jurisdiction is meant to foster justice and avoid perpetuation of something patently unjust. I would respectfully follow the principle and apply the same to the facts and circumstances of this case.
10. Haji Mukhtar Ahmad, petitioner, obtained the lease rights in respect of Kathala Sheikhan Market for a sum of Rs,19,12,000. Before me the rival bidder, namely, Muhammad Javed Gondal, has given a minimum offer of Rs,60,50,000 and has handed over in Court the two deposits-at-call slips in the total sum of Rs,10,00,000. The difference between the two offers is more than rupees four millions (Rs,40,00,000). In my considered judgment this difference cannot be brushed away by simply describing the act of rival bidder to be the result of ill-motives and business rivalry. The principle laid down in Raunaq Ali's case (supra) is clearly attracted. Mr. Qazi has, however, expressed his apprehension that the rival bidders will run away and will forfeit their deposits just to satisfy their revenge against his clients. This is a mere apprehension and, even if so happens in future, I am clear that the Zila Council will be rich by a million rupees. And if the rival bidders, after obtaining the lease run away and refuse to perform their part of the contract, the law will take its own course.
Mere apprehension of Mr. Qazi, Advocate, is not enough to refuse to apply the principle laid down in Raunaq Ali's case (supra).
11. In respect of Cattle Market, Gojra, these rival bidders have made no offer. In fact it has been stated at the Bar that it is the Zilla Council itself which is holding that Market. Mr. Qazi has submitted that since there is no offer in that case, his client is entitled to get back the lease rights. But for gap in the two offers in the case of Kathala Sheikhan Market and the conduct of Abdul Hameed, petitioner, which is not shown to be above board, I would have acceded to the request of Mr. Qazi.
However, for the reasons, I would decline to exercise my Constitutional jurisdiction even in case of Gojra Cattle Market.
12. For the above-noted reasons, Writ Petitions Nos.17600/95, 17601/95, 18468/95 and 18472/95 are dismissed. In view of the dismissal, Writ Petitions Nos.924/96 and 925/96 are disposed of as infructuous, leaving the parties to bear their own costs. As a result, the respondent-Administrator will hold fresh auction in respect of Kathala Sheikhan Market where the minimum base offer would be Rs,60,50,000 for one year of collection rights. The proposed auction shall be duly published so as to attract the maximum bidders. The amount of rupees one million each deposited by Muhammad Javed Gondal and Gul Nawaz Bhalli will be deemed as earnest money and dealt with in accordance with the Punjab Local Councils (Lease) Rules, 1990.
13. I am restraining myself from passing directions in respect of the conduct of the Administrator and other concerned officials on account of the report of the Secretary that he would be calling the necessary explanation from these functionaries. It would be for him to take appropriate action desirable in the facts and circumstances of this case. A copy of this Judgment shall be sent to the Secretary, Local Government and Rural Development Department, Lahore.