' The Government of N.-W.F.P, through the functionaries of its Forest Department, by a notice dated 28-12-1968 invited tenders for the sale of range 1, 2 and 4 in Kaghan Forest Division. Syed Akhtar Hussain Shah etc. On behalf of their firm offered a bid of Rs,10,45,425.61 which, as intimated by the Department, was accepted on 16-4-1969. The bidder firm was asked to deposit the security and to sign the agreement within three months.
2. Such agreement was not signed and hence the aforesaid bid was cancelled. Twice thereafter tenders were invited but no one attended thereto. On the third occasion, two bidders came but offered small bids which were rejected. On the 4th bid, the aforesaid contract was given to one Haji Sarwar, probably on a negotiated amount of Rs,6,84,404.20.
3. Owing to such proceedings of re-sale and keeping in view the two amounts involved, the Government had to sustain a loss of Rs,3,61,021.81 which was claimed through Letter No, 4157, dated 2-6-1971, under section 56/57 of the Forest Act.
4. Syed Akhtar Hussain. Shah etc, on 25-3-1975 filed a civil suit challenging the aforesaid claim, which was decreed in the Court of Senior Civil Judge, Abbotabad on 19-9-1995. Such decree was upheld by the learned Additional District Judge, Abbottabad on 30-6-1992. The Government has come up in revision.
5. Muhammad Aslam Khan learned counsel on behalf of the Government challenged the impugned findings on the grounds; firstly, that section 54 of the Sale of Goods Act was not applicable to the facts of the present case and; secondly that the suit was covered not by Residuary General Article 120 but by specific Article 14 of the Limitation Act which provided for the institution of relevant suit within one year and that, viewed accordingly, the instant suit was time- barred. Both the assertions would be attended to one by one.
6. For the facility of reference, section 54 of the Sale of Goods Act, so far as relevant to the extent of subsections (1) and (2) is reproduced below:--
(1) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or stoppage in transit.
(2) Where the goods are of a perishable nature, or where the unpaid seller who has exercised his right of lien or stoppage in transit gives notice to the buyer of his intention to re-sell, the unpaid seller may, if the buyer does not within a reasonable time pay or tender the price, re-sell the goods within a reasonable and recover from the original buyer damages for any loss occasioned by his breach of contract, but the buyer shall not be entitled to any profit which may occur on the re-sale.
If such notice is not given the unpaid seller shall not be entitled to recover such damages and the buyer shall be entitled to the profit, if any, on the resale.
(4)...
7. The tender offered in the instant case by the respondents was accepted on 10-4-1969. The intimation to sign the agreement and to deposit the security was given on 16-4-1969 with reference to clause 10 of the tender notice Exh.P.W.1/1. This being the factual position, if one reverts to section 54 of the Sale of Goods Act, it is clear from subsection (1) thereof that a sale generally cannot be rescinded by lien or stoppage in transit except in the manner provided in the section itself. The conditions of rescission or the exercise of right of lien are provided in subsection (2) of section 54 which categorically provides for issuing of a notice to the buyer before any right of lien is exercised by the seller. This very point was fully explained with special reference to the sale of forest in Provincial Government of N.-W.F.P v. M.K. Musafir PLD 1965 SC 489. The Supreme Court held that the issuance of notice to the buyer was necessary before exercising the right of lien. This view was once again reiterated by the Supreme Court in M/s. Aslam Saeed & Co. v. M/s. Trading Corporation of Pakistan (PLD 1985 SC 69).
8. It is proved, rather admitted that no notice was ever given by the Forest Department before taking action against the respondents within the contemplation of section 54 of the Sale of Goods Act and hence the claim was rightly held barred, by the two Courts below.
9. The offering of bid to the tune of Rs,10,45,425.61 was a simple proposal within the meaning of section 2(a) of the Contract Act. After its acceptance by the Forest Department, it had become a promise. Both, the promise and the acceptance, had rendered the negotiation into an agreement.
Such agreement had not taken the shape of a contract which was yet to be signed by the parties after the performance offered by the Forest Department through letter dated 16-4-1969, Exh.PW 1/3.
It was a stage where the parties had reached an agreement but had not yet signed the contract and thus the unpaid seller had a right to exercise his lien over the subject-matter sold. Such lien could have been exercised only with prior notice to the .Buyer which was not given under section 54 of the Sale of Goods Act and hence no damages or loss, occurring in the course of re-tendering the forest, could be claimed by the Department.
10. The proposal was made by the buyer on 28-12-1968. The only rules regulating the present transaction between the parties, as framed by the Government, are placed on record as Exh.PW 2/1 titled "FOREST LEASES; REGULATION OF PROCEDURE FOR". Regulation 38 provides detailed procedure as to how the acceptance would be made and eventually conveyed to the buyer. It is detailed in such Regulation 38 as to how much time would the department consume during each stage of its hierarchy and how, after reverting through the same channel, the acceptance is to reach to the buyer. If calculated accordingly, the period of acceptance comes to 15 days whereas in the instant case the acceptance of tender was conveyed to the contractor on 10-4-1969 i,e, about 3-1/2 months after the proposal.
11. Learned counsel for the respondents seriously challenged this aspect of the case in the light of section 6 of the Contract Act which deals with revocation of a proposal. The relevant is subsection
(2) thereof which lays down that a proposal is revoked by the lapse of prescribed time for its acceptance or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance. If viewed in the light of section 6(2) of The Contract Act, the acceptance of proposal after the lapse of about 3-1/2 months was not a reasonable time and hence the proposal made by the buyer would be deemed to have been revoked. If Regulation 38 aforesaid is considered to be sufficient for prescribing the time of acceptance, then such acceptance must have come within 15 or at the most 20 days. In either case, the proposal stood revoked by the conduct of the Forest Department.
12. Next is the question of limitation. Article 14, as relied upon by Muhammad Aslam Khan, provides a period of one year to file a suit to set aside any act or order of an officer of Government in his official capacity. The learned counsel was of view that the impugned order asking for the deposit of Rs,3,61,021.81 was passed by the officer of Government on 2-6-1971 (Exh.DW 1/1) and hence the present suit filed on 26-3-1975 was beyond one year and hence time-barred.
13. Learned counsel for the respondents Mr.Muhammad Younis Khan Tanoli was of the view that the aforesaid Article 14 applies only to a situation where routine orders by Government Officers are passed in the discharge of their normal official duties, and that, the Article does not apply when the Government officer signs through an agreement and is a party to some agreement with some other. The learned counsel relied upon Ghulam Gillani & Co v. Government of Pakistan (PLD 1967 Karachi 624) where it was held that Article 14 of the Limitation Act was not applicable where the Government Officer passes some order on the basis of a contract which was entered into between the parties and not under any statutory power.
14. As discussed earlier, the instant dispute had arisen at a stage when a mere agreement had emerged between the parties and not yet translated into a contract. The Government Officer in the instant case had passed the impugned order in his capacity as party of the agreement and not as a Government Officer functioning under any statutory power. I agree and hold that Article 14 of the Limitation Act does not apply to the present facts of the case. Only the residuary Article 120 of the Limitation Act would apply under which the suit is perfectly within time.
15. The upshot of the above discussion is that the two Courts below had rightly appreciated the present case in its legal as well as factual perspective. There being no merit in the instant revision, it is hereby dismissed with no order as to costs.