SAVED ZAHID HUSSAIN, J.--- By this judgment C.R. No. 976-84 and C.R. No. 977-84 having identical facts and circumstances and common questions of law are being disposed of.
2. The petitioner offered hid for the lease rights of plot No. 27 and 28 situated on Allama Iqbal Road, Sadar Bazar, Sialkot City in the open auction and the respective bids offered by the petitioner were Rs. 82,000/-and Rs. 63,000/-. 1/10th of the bid money is claimed to have been deposited by the petitioner on the same date i.e. 15.7.1974. The bid offered by the petitioner was liable to approval and confirmation/sanction by the competent authority. It is claimed that hid was approved by respondent No. 1 on 10.8.19974. However, it was pending confirmation/sanction by respondent No. 2 when M/s. Muhammad Akram Khan and Safdar Khan by way of an application offered Rs. 91,000/- for plot No. 27 and Rs. 70,000/-for plot No. 28 as lease money. Their offer however, did not materialise and the matter of confirmation of hid offered by the petitioner was finally declined and the plots were ordered to he put to re-auction. Vide memo.
Dated 13.1.1975, the petitioner was informed that auction proceedings of 15.7.1974 had failed to fetch the rent commensurate with the market value, the same has therefore, been rejected. This according to the petitioner furnished a cause of action' ter tiling a suit on 8.2.1975. The suit was contested by the respondents inter-alia on the ground that the suit for declaration (it was initially a suit for injunction which was later on converted by the petitioner for a declaration) was, not maintainable in view of Sec. 273 of the Cantonment Act, 1924 and that the petitioner had no right with out confirmation of the hid, reference was made to memo dated 13.1.1975 in this regard and thus, the suit was liable to he dismissed.
3. The learned Trial Court after. Framing the issues as to the competency/maintainability of the suit as well as on merits and receiving the evidence led by the parties dismissed the suit vide judgment dated 28.4.1982. It found the suit as not maintainable in view of Section 273 of the Cantonment Act as notice for tiling a suit had not been given and the same was not maintainable under the law; and that since the hid was not confirmed by the competent authority the petitioner had no right in the suit property. It was held that "the competent authority had,refused to accord sanction through Exh.D-1 and Exh. D-2. Under the circumstances it cannot be said that the contract between the plaintiff and defendant No. 1 has been concluded because the competent authority had refused to accord sanction to such contract". Accordingly the cancellation of auction and re-auction of the disputed plots was held to he legal and with jurisdiction. The petitioner challenged the said judgment before the appellate Court by way of appeal which appeal was dismissed by learned Addl. District Judge, Sialkot vide judgment dated 23.10.1983. Hence this petition for revision against the aforesaid judgments.
4. Learned counsel for the petitioner has contended that since the suit for permanent injunction at the initial stage was maintainable without any notice under Sec. 273 of the Cantonment Act, its conversion into a suit for declaration later on did not affect the competency of the same and no notice under section 273 of the Cantonment Act was necessary. He relies on Muhammad Ryas Hussain vs.. Cantonment Board, Rawalpindi (PLD 1976 S.C. 785). It is further contended that the refusal of sanction by the competent authority, simply for the reasons that some other person was prepared to offer higher amount was not warranted by law and that the cancellation of auction proceedings without notice to the petitioner was illegal.
5. The learned counsel for the Cantonment Board, has contended that the petitioner had no right whatsoever in the property as by mere participation in auction and giving bid even though the highest, did not confer any right which was subject to confirmation, that the suit for declaration itself was not maintainable in view of the provisions of Section 273 of the Cantonment Act and that the findings of the Courts below against the petitioner are supported by evidence on record and the law applicable, are not liable to be interfered with. During the pendency of this petition State Bank of Pakistan also sought to be impleaded as a party through C.M.N. 1198-C-1990 as a lessee of the property which application was allowed by this Court on 8.4.1992 and no objection was raised to the impleadment of State Bank of Pakistan by the petitioner. The learned 'counsel for the State Bank of Pakistan has also been heard who has supported the judgment of the learned Trial Court as well as of the learned appellate Court and also raised his grievance that despite knowledge of the lease in favour of that State Bank of Pakistan the petitioner did not implead it as party to the proceedings.
6. Two questions mainly arise in this case firstly as to the competency and maintainability of the suit itself in view of section 273 of the Cantonment Act and secondly whether the petitioner by merely giving highest bid is vested with any right in the property without requisite confirmation/sanction by the competent authority.
7. Section 273 of the Cantonment Act, 1994 lays down that no suit shall be instituted against any Cantonment Board in respect of any act done or purporting to have been done in pursuance to this act or rules or by-laws made thereunder until expiration of two months after notice in:writing has been left at the office of the Board and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff. This is by virtue of sub-section (1) of Section 273 of the Cantonment Act. The only exception is however, as provided for in sub-section (4) of the said provision= which relates to a suit in which the only relief claimed is of injunction . Section 273 of the Cantonment Act was considered by their lordships of the Supreme Court in the case of Muhammad Ilyas Hussain (supra) and the mandate of sub-section (1) of Section 273 was found to be of imperative nature and comprehensive in its scope. In the precedent case the suit for declaration was found to be not covered by exceptions (Subsection 4 of Section 273) and was held to be not competent in the absence of a two months' prior notice required under sub-section 1 of Section 273. The petitioner/plaintiff however, in that case gave up the relief of declaration and confined the suit for the relief of permanent injunction which was remitted to the Trial Court for disposal in accordance with law. In the instant case the petitioner/plaintiff initially filed a suit for injunction only which was later on converted into a suit for declaration. Since the relief of declaration could not be granted in view of the bar of sub-section (1) of Section 273, the learned Trial Court rightly found the suit as not maintainable, as the admitted position was that no notice in terms of subsection 1 of Section 273 had been given by the plaintiff/petitioner. Since the requirement of sub-Sec. (1) of Sec. 273 is of mandatory nature, the mere pending of the suit cannot be treated as a notice to the Board, and compliance of Sub. Sec. (1). The view of the learned Trial Court is correct and in consonance with the rule laid down by their lordships of the Supreme Court in the case of Muhammad Ilyas Hussain (supra).
8. The finding on the other question as to whether the petitioner had any right in the property merely for the reason that he was the highest bidder, there is a concurrent finding recorded by the two Courts below. Undisputedly the auction was subject to confirmation/sanction of respondent No. 2 which was refused by the competent authority and re-auction was ordered. This was in the interest of the Cantonment Board aimed at to fetch as much lease money as possible through open auction. This mode of transfer of rights in such like matters is not only desirable but also in the public interest for it fetches the highest price available in the market and the money thus obtained goes to augment the resources of the Cantonment Board and to the benefit of general public. The reason for non-confirmation of the bid was that it was not commensurate with the market value of the site. The learned counsel for the Bank has stated that lease in favour of State Bank of Pakistan for the same property has been given on a substantially higher lease money i.e. Rupees 83,17,800.00. In view of the above Arsala Kari case (PLD 1976 S.C. 581) is not an authority for such a case .
The findings of the two Courts below that without sanction of the competent authority no right or contract had matured in favour of the plaintiff/petitioner is eminently supported by the material on record of the case, the same are unexceptional and suit rightly dismissed.