1. ' SAIYED SAEED ASHHAD, C.J.--In this Constitutional petition the petitioners have sought the following reliefs.
(a) Declare that the petitioner is entitled and respondent No,2 is obliged to transfer the two properties of the unit vis: ' Al-Haroon Building situated on Garden Road, Karachi, constructed on a plot measuring 44000 Sq.
2. Yds. And ownership claim on a two acres Plot No,B-68, situated in S.I.T.E., Karachi in pursuance of the accepted highest bid of the petitioner.
(b) Direct the respondent to act in accordance with law and to finalise the sale/transfer the ownership of the two properties as in terms of the concluded contract.
(c) Restrain the respondents, their servants, agents or any other person/persons claiming through or under them from re-advertising both or any one of the two properties or to put the same to auction or to transfer or to sell the same to any person, other than the petitioner, in any manner.
(d) Cost of the petition.
(e) Any other relief that this Hon'ble Supreme Court deems fit and expedient in the circumstances of this case be kindly granted.
3. ' The brief facts leading to filing of this Constitutional petition are that respondent No,2 Privatization Commission published advertisement in various newspapers on 28-12-1994 inviting the public to bid for the purchase of its several properties included Al-Haroon Building, Garden Road, Karachi and ownership claim on a two acres Plot of land No,B-68, situated in S.I.T.E., Karachi. The petitioners in accordance with the instructions deposited an amount of Rs,1 Million as earnest money and participated in the open bid in respect of the two properties referred to above. Subsequently, the petitioner was informed that its bid being the highest was accepted vide letter, dated 12-2-1995.
4. According to the petitioner this letter had created some confusion and, therefore, they vide letter, dated 16-2-1995 sought clarification especially calling upon respondent No,2 to provide photo copies of the title documents pertaining the two properties in question, which were replied to in the affirmative by respondent No,2. Later on, it transpired that plot in S.I.T.E. Was in fact the property of Messrs Haroon Cosmetics and that a litigation in the Court of 2nd Senior Civil Judge, Karachi, West was going on with regard to the ownership/title of the plot in S.I.T.E. Wherein Messrs National Motors, who were referred to as the owner of the plot in S.I.T.E., was also a party. The petitioners thus, suggested that the finalisation of sale of plot in S.I.T.E. Be deferred till the question of title of respondent No,2 was established and offered to purchase Al-Haroon Building on payment of Rs,4 Crores lump sum. According to the petitioners, respondents did not respond to the above offer made by it and they continued to prolong the matter without giving any satisfactory reply for the future course of action. The petitioner further submitted that subsequently .It transpired that the bid of the petitioners have been cancelled without any reason or lawful justification and the two properties in question were being re-advertised whereupon the petitioners vide its letter, dated 14- 9-1995 approached the then Prime Minister for a favourable decision but the respondents created impediment. The petitioners further submitted that respondent No,2 had mislead the petitioners by falsely asserting that they had marketable title in respect of the plot in S.I.T.E., as well as the concealing the factum of litigation going on in the Civil Court, thus rendering themselves guy of fraud. Having come to know that the two properties in question were being re-advertised, the petitioners filed a suit in the Court of the 3rd Senior Civil Judge, Karachi, South being Suit No,912 of 1995 for Injunction only but because of legal flaws as to the maintainability, the same was withdrawn and the above petition was filed.
5. ' Parawise comments were filed on behalf of respondent No,1, wherein it was submitted that in view of litigation going on in the Court of the 2nd Senior Civil Judge, Karachi, West in respect of the plot in S.I.T.E. It was not possible for respondents to finalise the proposed sale transaction with the petitioners in the near future, it was, therefore, decided to return the earnest money of the petitioners in pursuance whereof a Bank Draft for Rs,1 Million was forwarded to the petitioners alongwith letter, dated 5-9-1995 conveying the decision of the competent authorities but the same was not received by the petitioners. It was further submitted that the letter was again 'dispatched to the petitioners but again it returned the same. They . Denied to have mislead the petitioners or of having committed any fraud, which was evident from the action of the respondents in refunding the earnest money of all the bidders including the petitioners on account of the stay order granted by the Court against the sale of the plot in S.I.T.E.
6. ' Respondent No,2 also filed its parawise comments, wherein it was stated that the ownership claim in respect of the plot in S.I.T.E. Was under litigation between Republic Motors (Pvt.) Ltd., and the Haroon Group and this fact was stated in the newspaper's advertisement without having any knowledge of rights/interests of any other party in respect of the plot in S.I.T.E. The rest of the contents of the comments filed on behalf of respondent No,2 are the same as was submitted by respondent No,1. Both the respondents submitted that in view of the facts and circumstances no concluded contract had come into existence between the petitioners and the respondents, which could be sought to be enforced by the .Petitioners through a Court of law and that the petition was liable to be dismissed.
7. ' We have heard the arguments of Messrs Mushtaq A. Memoon, Muneer A. Malik and Syed Zaki Muhammad, learned counsel for the petitioners, respondent No,1 and respondent No,2. All the learned counsel had agreed that this Constitutional petition may be disposed of finally at the Katcha peshi stage, if so required, after being admitted to regular hearing.
8. ' Mr. Muneer A. Malik had vehemently objected to the maintainability of this Constitutional petition on the ground that the two properties in question were offered for sale by respondent No,2 in exercise of its inherent executive power and not in pursuance of the power conferred on it by the statute, law, rules or regulations with the result that a contract entered into by the Government in exercise of this executive authority could not be enforced or questioned through a Constitutional petition. Mr. Mushtaq A. Memon had vehemently controverted this objection and submitted that the same was without any substance inasmuch as Government did not enjoy any inherent executive power or authority and all its actions were required to be taken in exercise of the powers conferred on it by any statute, law, rules or regulations. He further submitted that the Government did not enjoy any inherent rights or powers except those conferred on it by the legislature and all its actions were required to be backed by contemporaneous law. In support of his above contention he placed reliance on the case of Haji Gul Zamin and another v. A.B. Khondkhar and others, reported in PLD 1965 Dacca 156 and Haji Ghulam Sabir v. Pan Allotment Committee and another, reported in PLD 1967 Dacca 607. Mr. Muneer A. Malik did not seriously press this objection after the same was resisted by Mr. Mushtaq A. Memon. Even otherwise the same holds no ground in view of the pronouncement made in the aforecited two cases of the then Dacca High Court that the Government/Executive did not enjoy or possess any inherent authority and further that no powers or duties were inseparably annexed to it lying down that Government/Executive act must be backed by contemporaneous law.
9. ' The next objection raised by Mr. Muner A. Malik with regard to the maintainability of this Constitutional petition was that intricate, complicated and disputed issues of facts were required to be determined for a just and fair decision which could not be determined without recording evidence of the parties which course was not resorted to by this Court in exercise of its Constitutional jurisdiction. He further submitted that the factual issues/disputes which required determination were; whether a valid contract had been concluded between the parties for sale of the two properties in question to the petitioner; whether the plot in S.I.T.E. Was in the ownership of Haroon Group and not of Messrs Republic Motors (Pvt) Limited so as to vest its ownership in respondent No,2 or nationalization .Of Messrs Republic Motors (Pvt.) Limited; whether the dispute as to the title of the plot in S.I.T.E. Was within the knowledge of the petitioner when he offered his bid for its purchase and it had agreed to purchase it subject to clearance of title; and whether the petitioner could bifurcate the transaction into two respect transactions of sale and insist that Al- Haroon Building be sold to it in lieu of payment of Rs,40 Million. He further submitted that factual controversies and disputes which could not be decided on the basis of documentary evidence and material on record requiring recording of evidence of the parties and/or witnesses would not be decided by this Court in exercise of its Constitutional jurisdiction and the aggrieved party had to take recourse to a Civil Court for resolution of the disputed, controversial and intricate factual issues and disputes for which he placed reliance on the cases of: (1) Shah Jahan v. Syed Amjad Ali, Hawaldar and others; (2) Fateh Ali v. Province of Balochistan through Secretary Health and others; and (3) Muhammad Waris Ali v. Deputy Commissioner, Sheikhupura and others Mr. Mushtaq A.
10. Memon on the other hand, vehemently refuted the objection raised by Mr. Muneer A. Malik and submitted that there were no intricate, complicated and controversial factual issues and disputes and the factual issues disputes enumerated by Mr. Muneer A. Malik could be decided without recording of evidence of the parties and/or witnesses.
11. ' From the arguments advanced by the learned counsel for the parties and after perusal of the material on record we are of the view that several disputed and controversial questions of facts would require to be determined for the purpose of a just and proper decision in the matter. The first and foremost issue would be with regard to the title/ownership of the plot in S.I.T.E. It is pertinent to note that respondent No,2 had published an Information Memorandum for the proposed sale of Republic Motors (Pvt.) Limited. This Information Memorandum contained all material information with regard to the properties, which were offered for sale through the public advertisement. It was stated that the plot in S.I.T.E. Belonged to Republic Motors (Pvt.) Limited, which was wholly owned by Pakistan Automobile Corporation (Pvt.) Limited but the same was illegally occupied by Haroon Group which forced Messrs Republic Motors (Pvt.) Limited to file a suit in a Court of law, whereas Haroon Group had also filed a suit disputing the ownership of the plot in S.I.T.E. In favour of Messrs Republic Motors (Pvt.) Limited and claiming to be the owners thereof. In the advertisement issued for sale of the plot in S.LT.E. The bidders were specifically directed to obtain the Information Memorandum for verification of the facts relating to the status of the properties offered for sale. In the circumstances, it cannot be said that the petitioners had no knowledge of the pendency of the suits in the Civil Courts relating to the determination of title/ownership of the plot in S.I.T.E. By offering its bid for the purchase of the plot in SITE the petitioner had unequivocally expressed its desire to purchase the plot in SITE subject to the dispute relating to its title/ownership. The question relating to the title/ownership can only be decided by a competent civil Court and is not to be decided by this Court. Reference for the above is placed on the cases of Federation of Pakistan and 2 others Major (Retd.) Muhammad Sabir Khan reported in PLD 1991 SC 476, Landale and Morgan (Pakistan) Ltd., Narayanganj v. The Chairman, Jute Board, Dacca ad another, reported in 1970 SCMR 853 and Bashanka Lal Bank v. Islamic Republic of Pakistan and others v. Reported in 1969 SCMR 283.
12. In the circumstances it was not open to the petitioners to claim as submitted by Mr.Mushtaq A.
13. Memon that the petitioners were caught unaware when they came to know that litigation was going on in the civil Court, wherein the title/ownership of the plot in S.I.T.E. Was in dispute and thereby alleging that the respondents had misrepresented and, concealed the facts and had committed fraud. As a matter of fact it is the other way round. The petitioners ought to have known that the title/ownership of the plot in S.I.T.E. Was in dispute being the subject-matter of two suits filed by the opponent parties, both of whom claimed to the owner and on making a bid for purchase thereof the petitioners expressed its desire in clear terms that it was ready and willing to purchase the plot in question subject to the decision relating to its title/ownership and it was not open to the petitioners to turn around and say that it had been caught of guard by alleged suppression and concealment of material facts which, if had been brought to its notice earlier would perhaps not have warranted the petitioners to participate in the open auction. Another very material issue which would require determination is whether the two properties in question were to be sold jointly for a lump sum price of Rs,67 Million or that the transaction could be bifurcated to allow the respondents to sell one of the two properties to the petitioner. The petitioner had offered the sum of Rs,67 Millions jointly for the two properties in question and from the material on record it is almost impossible to bifurcate the sum of Rs,67 Millions for assigning particular amounts as sale prices of the two properties in question. Upon consideration of foregoing arguments we are satisfied beyond any reasonable doudbt that intricate, complicated and disputed questions and controversies of facts are involved in the case, which cannot be decided on the basis of the documentary evidence or material which is on record and the matter would require recording of evidence of the parties and/or witnesses for resolution thereof, an exercise which this Court does not undertake while proceedings in its Constitutional jurisdiction. It is pertinent to note that initially the petitioner had filed a suit in civil Court for resolution of the disputes being Suit No,912 of 1995 which the subsequently withdrew as it suffered from certain flaws. The action of the petitioners in filing a suit for resolution of the disputes which are the subject-matter of this petition is suggestive of the fact' that the petitioner itself was satisfied that the issues and the disputes involved in this petition could be resolved by a civil Court and not by this Court.
14. ' On merits Mr. Mushtaq A. Memon submitted that on acceptance of the bid of the petitioners by the respondents a concluded contract had come into existence between the petitioners and the respondents whereby the respondents had bound themselves to sell the two properties in question to the petitioners on payment of Rs,67 Million but that the respondents on account of mala fides, and to oblige some of the favoures was avoiding to execute/perform the concluded contract and was trying to wriggle out of the same without any legal cause or justification. He further submitted that respondent No,2 being a public functionary could not be allowed to act in violation of the law and rules and it was under a legal duty to act in accordance with law. He further submitted that if this Court found that a particular public functionary was acting beyond its powers or exercised jurisdiction illegally or was violating and ignoring the provisions of law, justice and fairplay then this Court would definitely come to the aid of the aggrieved party and assist him obtaining his rights available under the law which were violated by an illegal and unlawful of commission or omission of a public functionary.
15. ' The grievance of the petitioner is the alleged inaction of the respondents to complete the transaction of sale which had allegedly come into existence between the parties whereby the respondents were required to sell the two properties in question to the petitioner. Before proceedings to determine whether the respondents had been guilty of inaction and had refused or neglected to perform their duty it is to be determined whether the respondents were legally under any obligation or a duty was cast upon them to perform or to refrain from performing any act of commission in favour of the petitioner.
16. ' This brings us to the question as to whether any concluded contract had come into existence between the petitioners and the respondents on the basis of the letter of intent, dated 12-2-1995 Annexure 'B' of respondent No,2 declaring the petitioner as the successful bidder for the acquisition of the two properties in question on payment of Rs,67 Million. It was contended by Mr. Mushtaq A.
17. Memon that as and when the respondent No,2 convey the information to the petitioner that it was declared as the successful bidder as its bid was the highest for purchase of the two properties in question a lawful, valid and binding contract had come into existence whereby the respondents were placed under an 'obligation to take all possible steps for sale of two properties in question to the petitioners on consideration of payment of Rs,67 Million and to execute valid and proper document of transfer. It was further submitted that the respondents instead of making efforts to complete the sale transaction of the two properties in question in favour of the petitioners created obstacles by raising or-called for, illegal baseless demands and conditions which they knew could not be accepted by the petitioners as they were not legally and validly sustainable thereby acting in a mala fide, dishonest and arbitrary manner solely with a view to deprive the petitioners of its rights, which had come to vest in it is in view of the letter of intent, Annexure 'B'. Mr. Muneer A. Malik, on the other hand, vehemently refuted the arguments advanced by Mr. Mushtaq A. Memon and submitted that the letter of intent, Annexure 'B' was in the nature of an offer to the petitioners to enter into an agreement for the purchase of the two properties in question on the terms and conditions embodied in the letter of intent, Annexure 'B' on the basis of which an agreement of sale was to be signed by the parties only then a concluded contract would have come into existence. In order to determine whether at any stage a concluded contract had come into existence between the aforesaid parties whereby the respondents had undertaken to sell the two properties in question to the petitioners, it will be necessary to examine the contents of letter of intent Annexure 'B' and for this purpose it will be beneficial to reproduce the same in extenso. F-7(6)PC/94 GOVERNMENT OF PAKISTAN FINANCE DIVISION PRIVATISATION COMMISSION Islamabad the 12th February, 1995.
18. ' To ' Mr. Shajar Ali Hothi ' Bagh Construction Company Ltd., 6-Hothi Building, Ramswamy, Karachi.
19. ' Subject: Letter of Intent (LOI) for sale of Properties of Messrs Republic Motors (Pvt.) Limited Karachi Properties (Parcel-II)
20. ' Dear Sir, ' With reference to your bid, dated 8th February, 1995, on behalf of Bagh Construction Company Ltd., Karachi, for the above noted properties, we are pleased to inform you that the Government of Pakistan has declared you as the successful bidder for the acquisition of Karachi Properties of Messrs Republic Motors (Pvt.) Limited comprising land and building namely Al-Haroon Building located at Plot No,10 Garden Road, Karachi, and an Industrial plot measuring about 2 acres at B-68, S.I.T.E., Karachi (land title only) as described in the Information Memoranda at a price of Rs,67 Million (Rupees sixty seven million only).
21. ' This LOI will terminate at the end of three months from the date of acceptance or upon signature on the Sale Agreement whichever is earlier. In consideration of this exclusive authorization, we invite you to enter into the Sale ,Agreement before the expiration of LOI.
22. ' This LOI is subject to the following terms and conditions:
(i) Within 14 days from the acceptance of this letter, you are required, in accordance with the conditions of sale to deposit 26% of the sale price amounting to Rs,17.42 million through a Pay Order or a Bank Draft drawn in favour of Privatization Commission, payable at Islamabad. Failure to deposit the sum as requested will result in the rejection of your bid and the forfeiture of the earnest money.
(ii) The balance payment i,e, 14% of the sale price amounting to Rs,9.38 million shall be paid within 16 days from the date of the payment stipulated in sub-paragraph (1) hereinabove.
(iii) An irrevocable unconditional Bank Guarantee, independent of the Sale Agreement (in the enclosed format) for the balance payment of 60% of the sale prices totaling Rs,40.2 million to be paid in three equal annual instalments (or six equal half yearly, installments) with mark-up on the outstanding sale price at a rate equal to 16% per annum is required to be furnished by you within thirty days from the acceptance of this letter.
(iv) 5% discount against the total sale price shall be allowed if you make the cash payment up front from the entire amount within 30 days of the acceptance of the LOI.
(v) In the event of purchase of aforesaid properties by you the tenancy rights will continue between the existing tenants and the new owner until terminated in accordance with law.
(vi) The amounts of fixed deposit and advance rent available with the company will be liable to be transferred to the new owner on demand from each tenant and will be governed with the tenancy agreement.
(vii) There will be no restriction on the sale/movement of assets subject to the condition that the sale proceeds of assets are deposited with the Privatization Commission for adjustment against the balance payable by you.
(viii) After the fulfilment of the aforesaid conditions of this LOI, you will enter into a Sale Agreement.
23. Thereafter, within 14 days of the execution of the sale Agreement the control of the properties will be handed over to you by the management of the Republic Motor Limited.
(ix) You shall indemnify the seller against any claim or liability in respect of the aforesaid properties. Should there be any case/application pending in any Court/tribunal, Commission to authority etc., against the said property you will be solely responsible in respect thereof.
24. Please convey your acceptance of this LOI within seven days of its receipt failing which your earnest money shall stand forfeited. Your faithfully, (Sd.)
25. (Jameel Ahmed Bhutto)
26. Secretary.
27. ' A bare perusal of letter of intent Annexure 'B' is sufficient to hold that no concluded contract had come into existence. Para. 2 of letter of intent, Annexure 'B" made it clear that it was a letter of intent and it was to terminate at the end of three months from the date of acceptance or on signing of an agreement of sale whichever was earlier. Furthermore, by the aforesaid Annexure 'B' respondent No,2 had called upon the petitioners to enter into an agreement of sale on the terms and conditions enumerated therein. The petitioners instead of accepting the terms and conditions and agreeing to sign the agreement of sale on the basis of the said terms and conditions vide its letter, dated 16-2-1995, Annexure 'C' not only sought certain clarifications but also made counter offer and disagreed to the acceptance of certain terms and conditions. According to clause (6) of Annexure 'B' the amount lying with the respondents by way of fixed deposit and advance rent in respect of the shops of Al-Haroon Building from the tenants occupying the shops therein were to remain with the respondents and would be transferred to the new owners, i,e,, the petitioners on demand as and when demand was made from a tenant but this condition was refused to be accepted by the petitioners and they insisted that it should be transferred to them simultaneously at the time of execution of sale agreement. Such an action on the part of the petitioners could not be said to be the acceptance of the letter of intent, Annexure 'B' so as to bring into existence a concluded contract. For an agreement of sale or contract to come into existence it is necessary that there must be consensus of parties. For formation of a contract it is necessary that the offer made by the propose must be accepted by the promisee in unconditional and unequivocal terms and any slight variation or departure from the offer would result in its rejection and a counter- proposal. The petitioner vide its letter Annexure 'C' not only refused to accept condition (6) of Annexure 'B' but in very clear and unequivocal manner conveyed their intention that they had not accepted the letter of intent, Annexure 'B' and were prepared to convey their acceptance as soon as the clarifications were received by them. In the circumstances we are unable to agree with the contention of Mr. Mushtaq A. Memon that a concluded contract had come into existence at the moment the letter of intent dated 12-2-1995 Annexure 'B' was received by the petitioners wherein it was conveyed to it that its offer being the highest it was declared as the successful bidder for acquisition of the two properties in question. No such contract had ever come into existence.
28. ' Annexure 'B' did not amount to a document creating or bringing into existence a contract or agreement of sale. It is pertinent to note that an advertisement for tenders for sale of a property is not a proposal which could bind the party, advertising the property for sale, to sell the property to the person who makes the highest tender but is a mere attempt to ascertain whether a reasonable offer would be forthcoming for the advertised property from the interested parties. Thus, an advertisement inviting tenders for sale of a property is in the nature of inviting proposals and does not amount to making a contract. Hence the acceptance of a tender my be qualified by conditions. It is also to be noted that an advertisement for sale of a property by auction is a mere declaration of he intention to offer it for sale and does not amount to a contract with any one who may act upon it. It was submitted by Mr. Mushtaq A. Memon that the petitioners could not have accepted the terms and conditions offered by the respondents in Annexure 'B' as acceptance of all these terms and conditions would have placed the petitioners in a most disadvantageous position and for that purpose it was necessary to obtain certain clarifications. This very argument of Mr. Mushtaq A. Memon negates his contention that a concluded contract had come into existence as and when the letter of intent, Annexure 'B' was received by the petitioners whereby the acceptance of the bid of the petitioners and offering the two properties in question for sale was , conveyed to it and which was acceptable by it after certain clarifications were given. Mr. Muneer A. Malik referred us to the case of Messrs Habib Bank Limited v. Abdul Wahid Khan, reported in 1996 CLC 658 in support of his contention that making a promise and conveying the same to the promisee would not amount to come into existence of an agreement or a contract unless the promisee accepted the offer or the promise unconditionally. He also referred us to the case of Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others, reported in 1995 MLD 123 in support of his above contention. We have gone. Through the aforecited cases. The pr made in the aforesaid cases do not at all support the contention of Mr. Musthaq A. Memon that a valid, legal and proper `contract/agreement of sale had come into existence at the very moment when the petitioners received the letter of intent, Annexure 'By whereby the petitioner was conveyed the desire/intention of the respondents to sell the aforesaid two properties in question on payment of Rs,67 Million. The letter of intent, Annexure 'B' was only in the nature of an offer or a promise and would have turned into a valid agreement of sale only after an agreement of sale had been executed by the afcresaid parties in pursuance thereof on the terms and conditions embodied in the letter of intent, Annexure 'B'. However, on failure of the petitioners to execute an agreement of sale no concluded contract/agreement of sale ever came into existence.
29. ' In view of the fact that no valid, legal and proper contract/agreement of sale had been executed by the aforesaid parties, and there was no concluded contract between the parties, the petitioners did not acquire any right, whatsoever, which could be enforced by this Court in exercise of its Constitutional jurisdiction. Mere acceptance of the bid offered by the petitioners and an intention/desire to sell/dispose of the two properties in question to it on payment of a sum of Rs, 67 Million did not amount to coming into existence of a contract or an agreement of sale, which would have bound the respondents to dispose of/sell the two properties in question to the petitioners. The petitioners have miserably failed to establish that it had acquired a legal rights to claim the sale of the two properties in question by the respondents for consideration of a sum of Rs,67 Million and as no right had been created in its favour, it would not be deemed to be, an aggrieved party as contemplated in Made 1'99 of the Constitution of the Islamic Republic of Pakistan, which is a necessary condition for invoking the Constitutional Jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan. The petitioner did not have any legal or vested right, which was violated by any act of commission or omission by the respondents. Another essential condition that a party invoking the jurisdiction of this Court would have suffered legal injury resulting in loss to him was also not available as in the absence of any right neither the question of violation thereof nor question of legal injury would arise.
30. ' Mr. Mushtaq A. Memon in support of his contentions placed reliance on the cases of Messrs Arif Builders and Developers v. Government of Pakistan and 4 others, reported in PLD 1997 Karachi 627 and Messrs Dadadhoy Investment (Pvt.) Limited, Karachi v. Federation of Pakistan, reported in PLD 1995 Karachi 33, In both the aforecited cases the facts and circumstances were absolutely different and distinguishable from the fact of this case. In the first cited case the auction of the Government property was scraped wherein the petitioner was the highest bidder and thereafter it was decided to dispose of the property through negotiation wherein only the lowest bidder was invited and all others including the petitioners in that case were not invited. This Court held that such auction of the Government was absolutely arbitrary and discriminatory and also in violation of the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan inasmuch as all those persons who had participated in the auction were not provided an opportunity to participate in the negotiation and only the lowest bidder was invited for negotiation. This is not so in the present case. The respondents have not resorted to an action similar to the one taken in the cited case for disposal of the two properties in question and, therefore, the cited case has no application to the facts of this case. In the second case of Messrs Dadadhoy Investment (Pvt.) Limited, Karachi v. Federation of Pakistan (supra), the petitioners bid for purchase of the shares/assets alongwith transfer of management an industrial unit were invited wherein the petitioners bid was the highest, Government provided opportunity to all the bidders to raise bid price to a minimum 90% to reference price which was responded to by the petitioners by revising their bid to 90% to reference price. However, the Government without assigning any reason rejected the revised offer of the petitioners. This Court while disposing of the petition filed by one of the aggrieved bidders held that though the Government had the right to reject the revised bids but such power was to be exercised in a fair, reasonable and just manner and not arbitrarily, ignoring the principles of justice, equity fairness and the spirit of law. The pronouncement made in this case is also of no assistance to the petitioners as the facts and circumstances of the said case were altogether different and the pronouncements made therein have no application to the facts and circumstances of this case.
31. Upon the above discussion we find that this Constitutional Petition is without any substance and merit and does not require consideration. Accordingly, it sands dismissed in limine along with the miscellaneous application pending therein.