1. ' Briefly, it may be pointed out that Government of Balochistan was pleased to make Balochistan Minor Minerals Concession Rules, 2000. These rules provide mechanism for awarding of lease of minor minerals and matters related therewith. Mode of grant is through. Auction (Rule 6), conduct of auction is through Committee (Rule 7), 15 days prior notice of auction to public is required (Rule 11), registration of application (Rule 12), powers to accept or reject a bid (Rule 14), negotiations for the improvement of bid (Rule 15), payment of bid money (Rule 16), security deposit (Rule 19), grant of lease (Rule 20) and appeal against order of Licensing Authority is provided under Rule 48. It may also be added that as per Notification, dated 10-5-2000 Director of Mineral Development Department is competent to grant/award concession, in respect of minor minerals. Record reveals that the tender notice published in Daily Jang, Quetta on 1-9-2000, calling upon the interested persons to participate in the auction proceedings on 8-9-2000. It appears that though various persons appeared and participated in the auction yet the proceedings were cancelled as allegedly participants joined hands with each other and the respondent No,2 directed for holding of re- auction on 9-9-2000. On said date, the petitioner, intervener and others participated in the auction.
2. It is the case of petitioner that intervener Imdad Ali Mangi, gave bid of Rs,1,16,40,000. The petitioner aye next bid of Rs,1,16,50,000 and t, same was accepted, being the highest. It is further his case that respondent No,2 conveyed the approval of petition's bid amounting to Rs,1,16,50,000 vide letter, dated 11-9-2000, requiring the petitioner to fulfil, conditions laid down therein, so that formal award's letter could be issued. He further alleged that condition (a) of the letter was compiled by depositing balance amount of Rs,6,65,000 on 11-9-2000; as according to him Rs,5,00,000 were adjustable towards the bid amount in terms of rule 16(2). Record further reveals that respondent No .2 vic:z letter, dated 12-9-2000, brought to the notice of respondent No,1, the details of auction proceedings, however, it is important to reproduce, the concluding para.: ' Consequently allotment letter to the previous party (whose bid was Rs,89,60,000) was withdrawn and issued in favour of Mr. Khalid Hussain and possession of area was handed over to them.
3. ' Record further reveals that respondent No,2 (in reply to petitioner's letter, dated 11-9-2000, not brought on record) informed the petitioner vide letter dated 13-9-2000 (page-41-A) that Award's letter has already been signed by him at Karachi/Hub and now is being issued vide letter, dated 13- 9-2000. He was also required to deposit certain amount and also to execute a formal agreement/contract. Through this letter possession was also allegedly given to petitioner and 13- 9-2000 was treated as date of commencement of contract. Petitioner also brought on record Award's letter, dated 13-9-2000, but allegedly signed by respondent No,2, during his stay at Hub, as mentioned hereinbefore, it is the case of petitioner that on 13-9-2000, respondent No,1 on the verbal direction of Crops Headquarter cancelled the contract but without any notice or opportunity of hearing to him.
4. ' On the other hand case of official respondents is that the auction proceedings were cancelled on the basis of an application filed by one of the participants namely Imdad Ali Mangi, on the information that the same were not transparent. It was emphasized that while cancelling the auction proceedings respondent No,1, exercised its jurisdiction under Rule 48 and that even they could enter into negotiation for the improvement of bid.
5. ' Here it may not be irrelevant to point out that one Imdad Ali Mangi, submitted an application on 2- 10-2000, under Order 1, rule 10, C.P.C. For impleading him as party on the ground that he was one of the participants in the auction proceedings. It is also his case that though the impugned order was passed on his application, to the knowledge of petitioner, which was treated as an appeal, yet he has not been impleaded as a party. In this background he pleaded that he is a necessary party. In the interest of justice we have also heard him.
6. ' The case of intervener is that applicant was interested to give bid of more than the bid of the petitioner but the respondent No,2 immediately closed the proceedings and declared the petitioner as the higher bidder. He further submitted that intervener immediately protested to the respondent No,2, but since the respondent No,2 apparently interested to award this contract to the petitioner, therefore, the protest of petitioner was turned down.
7. ' In support of the above petition, Syed Ayaz Zahoor, Advocate for petitioner, has vehemently urged that the allotment order was lawfully issued in his favour, being the highest bidder but the same has been illegally cancelled by respondent No, 1 . He further urged that petitioner acquired a vested right, which could not have been taken away, without providing opportunity of hearing to him. The learned counsel also added that such order could not have been passed on the directions of others, who do not figure in the Scheme of Balochistan Minor Minerals Concession Rules, 2000.
8. ' On the other hand Mr. Muhammad Ashraf Khan Tanoli learned Advocate-General and S.A.M Quadri learned counsel for intervener argued:
(i) That against the illegal proceedings conducted by respondent No,2, matter was brought to the notice of respondent No,1, on the next working day i,e, 11-9-2000, and he being competent authority was pleased to cancel the proceedings. Needless to add that official respondents vide legal objection (D) of the counter-affidavit took the position that respondent No,1 under rule 48 is the Appellate Authority and such jurisdiction was exercised, on receipt of application received from the intervener;
(ii) that order passed by respondent No,1 was not on the dictation of Corps Headquarter as alleged.
9. It was explained that application was directly submitted to respondent No,1 but the intervener in his anxiety also dispatched similar application to Corps Headquarter, which was also passed on to Secretary. However, it was argued with great vehemence that Corps Headquarter has absolutely nothing to do with the cancellation. Further that since they have not been impleaded as party, therefore, no comments can be made against them;
(iii) in order to demonstrate that transaction was not transparent, learned Advocate-General explained that approval of bid was statedly communicated vide letter, dated 11-9-2000, by respondent No,1 from Quetta and appears to have been received by petitioner on the same date.
10. Similarly respondent No,2 addressed a letter, dated 12-9-2000, from his Quetta's Office to respondent No,1 and conveyed the details of auction proceedings. But it was also communicated that possession had already been delivered to petitioner, which could not have been done.
11. Learned A.-G. Also pointed out that letter of Award of the contract was sent to petitioner through letter, dated 13-9-2000, which also explained that Award contract was signed by the respondent No,2 during his stay at Hub. According to him as a matter of fact cancellation was communicated to them but as the transaction was not transparent, therefore, this manoeuvring was done;
(iv) that in the circumstances of the case, the petitioner does not qualify for relief, as the transaction was not transparent;
(v) that contract favouring petitioner was cancelled in the public interest because the respondent would be benefited by increasing the revenue and; petitioner would be at liberty to participate in the proceedings;
(vi) that award's letter was allegedly issued on 13-9-2000, whereas security deposit was made on 15-9-2000, and therefore, contract letter could not have been issued; and that earned money can be adjusted towards bid money and not security deposit;
(vii) that auction proceedings were cancelled before execution of written agreement between the parties, therefore, petitioner had not acquired any right;
(viii) that factually contract was cancelled by the competent authority on 11-9-2000, which decision was conveyed to respondent No,2 but in spite of that he issued the various letters favouring petitioner, which by itself is sufficient to prima facie, establish that proceedings lacks transparency.
12. ' We would not like to express our view on the merits of the present case as we propose to dispose of this petition on the short ground that petitioner was not heard before passing impugned order of cancellation. It is the case of petitioner that he was not heard before passing the impugned order.
13. The official respondents in their comments to the writ petition though took the position that respondent No,1 under Rule 48 of Balochistan Minor Minerals Concessions Rules, 2000, was competent as an Appellate Authority to cancel the auction proceedings yet admitted the fact that no notice was issued to petitioner nor he was heard before passing the order. In this view of the matter not only application (allegedly treated as an appeal) was illegally accepted but there has been violation of the principles of natural justice. There is judicial consensus amongst the superior Courts that the maxim "audi alteram partem" is applicable to judicial as well as quasi-judicial and non-judicial proceedings.
14. ' Since the communication, dated 13-9-2000, impugned in this petition as a result of order passed by respondent No,1 on 11-9-2000 was without any notice or hearing the petitioner, the same is not proper and lawful disposal of application/appeal filed by intervener.
15. ' In view of the above, impugned order of cancellation of contract is declared to have been passed without lawful authority and respondent No,1 is directed to decide the application/appeal of intervener afresh by giving him notice and hearing, in accordance with the law/rules.
16. ' The petition is accepted in the above terms. No order as to costs.