' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, has been directed against the judgment passed by the High Court on 28-6-2000, whereby the writ petition filed by respondent Muhammad Qayyum Khan was accepted and the order of appellants, dated 25-5- 1999 was declared to be without any lawful authority. The appellants herein were directed to hand over the Dozer in dispute to respondent after obtaining the rest of the amount and taxes mentioned in the relevant proclamation.
2. The necessary facts, giving rise to the present appeal, are that a Wheel Dozer/Loader D.W.A.-1/300 Camocit China-90, Rawalakot Division, belonging to Public Works Department became unserviceable and it was decided to sell it through open auction. The Auction Committee was constituted by the Government. A proclamation was Rublished in Daily Nawa-i-Waqt, dated 18-2-1999 inviting bids for the auction of said Dozer. During the auction proceedings respondent Muhammad Qayyum Khan gave the highest bid of Rs,1,90,000. The terms and conditions of the auction published in the proclamation were as under:--
(i) that whoever wants to join the bid shall produce a Call Deposit of Rs,10,000 which shall be refundable;
(ii) that the successful bidder has to deposit 25% of the bid amount on the spot and shall remove the machinery within 10 days after depositing the remaining amount, otherwise, the amount paid and the machinery shall be confiscated in favour of the Government; and
(iii) that the successful bidder shall pay the income-tax at the rate of 3% and the sales tax at the rate of 16%. Apart from this, he has to pay Rs,2 per thousand as Tajweed-ul-Quran Trust Fund. The Chairman, Auction Committee has the right to suspend or cancel one or all the bids.
' According to the terms announced by the Auction Committee the successful bidder was to deposit 25% of bid amount on the spot and was to remove the machinery within 10 days after depositing the remaining amount. The bid of respondent was accepted and he was asked to deposit 25% of the bid. He deposited the amount and waited for further direction but after about 3 months, i.e, on 25-5-1999 he was informed that his bid had been rejected. The respondent filed a writ petition in the High Court. The High Court has held that 25% amount of the bid was ordered to be deposited which clearly meant that Muhammad Qayyum Khan was accepted as successful bidder in light of proclamation issued in the newspapers. Therefore, the High Court has held that after having accepted Muhammad Qayyum Khan as the successful bidder no discretion was left to be exercised. Consequently the High Court has accepted the writ petition. The impugned order of the High Court, dated 28-6-2000 is the subject of present appeal filed by the Public Works Department and two other functionaries.
3. At the time of leave granting order on 4-10-2000 a learned Judge of this Court observed in paras.
Nos..2 and 3 of the leave grating order as follows:-- "2. I have gone through the proclamation inviting bids from interested parties. It is clearly stated in the proclamation that the successful bidder will deposit 25% of the amount on the spot. It is also stated in the proclamation that the Chairman of the Auction Committee would be authorised to postpone or cancel all or any of the bids without assigning any reason. It is clear from the facts of the case that the respondent was called upon to deposit 25% amount on the spot which means that the respondent was treated as the successful bidder. It is also clear that the Chairman of the Auction Committee did not cancel the bid. After keeping the amount deposited by the respondent for more than three months the Chairman cannot now turn round and take the position that the respondent was not a successful bidder.
3. It was then argued by the petitioner's learned counsel that the Auction Committee was not impleaded as a respondent and only Secretary Works (Chairman of the Auction Committee) was arrayed as one of the respondents. This argument has no weight because the power to cancel or reject a bid is vested in the Chairman of the Committee and not the Committee."
' However, the learned Judge in para.No,4 of leave granting order observed as under:- " there is a point which needs consideration by the Court. It was argued by the learned counsel for the appellant that the High Court .Has enforced a contractual liability which is not legally possible in a writ petition. Leave is, therefore, granted only to consider this point."
' It is obvious from the leave granting order that the' question to be resolved now is confined only to the extent as to whether the High Court could enforce a contractual liability in exercise of a writ jurisdiction.
4. In support of appeal it was vehemently contended by Mr. Farooq Hussain Kashmiri, the learned counsel for the appellants, that the High Court fell in error in enforcing a contractual liability which was legally not possible by exercising its jurisdiction in a writ petition filed by respondent. The learned counsel contended that though the abovementioned point was not raised before the High Court but the same being a question of law could be raised for the first time even in this Court. The learned counsel contended that in the memo. Of appeal before this Court it has been averred in ground (C) of para.No,7 that the High Court had exercised its extraordinary Constitutional jurisdiction for the implementation of contractual liability while it is well-settled principle that no writ could be issued for the enforcement of contractual liability and the same view was upheld by this Court in a case of Azad Government v. Neelum Flour Mills (1992 SCR 381). The learned counsel also submitted that he has duly raised this point in his concise statement in ground (E) of para.No,2 of the concise statement. The learned counsel pressed into service the submission that above all the leave has been granted by this Court vide order, dated 4-10-2000, therefore, it is enjoined upon the Court to examine and resolve the said point. The learned counsel in support of his contentions relied on (i) Azad Government and others v. Neelum Flour Mills, Muzaffarabad (1992 SCR 381), (ii)
Sufi Muhammad Ramzan, Contractor, Municipal Committee, Mianwali v. Secretary, Local Government and Rual Development, Punjab, Lahore and 2 others (PLD 1987 Lahore 262) and (iii) A.K.
Trading Corporation, Muzaffarabad through Chief Executive, Syed Mumtaz Ali Gillani, Muzaffarabad v. Messrs Construction (Pvt.) Ltd. Through Chief Executive, Zaffar Iqbal, Islamabad and 2 others (PLD 1998 SC (AJ&K) 7).
5. Controverting the arguments raised by the learned counsel for the appellants, Mr. Muhammad Sayab Khalid, the learned counsel for the respondent, vehemently urged that the point on which the leave was granted was not raised by the appellants hereinbefore the High Court, the same, therefore, could not be allowed to be raised in this Court. The learned counsel contended that bid of the said Dozer was conducted in presence of Chairman, Auction Committee and it was because of the acceptance of the bid made by the respondent as highest that he was ordered to deposit 25% of the amount of bid. After the acceptance of bid the appellants were bound to deliver the disputed Dozer to the respondent by asking the respondent to deposit the remaining amount and the relevant taxes. The learned counsel contended that after the acceptance of deposit of 25% on behalf of respondent of the amount of bid, the appellants could not turn round and convey to the respondent after 3 months that his bid has been rejected by the Auction Committee. The respondent thus rightly challenged the order of the appellants, dated 25-5-1999, whereby they conveyed to the respondent that his bid has been rejected. The aforesaid order being without lawful authority was validly declared by the High Court to be of no legal effect. The appellants under law were bound to do which they were required by law to do as provided under section 44(2)(i) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel also contended that the bid of the respondent being the highest one, having been accepted, the High Court was not barred from issuing the appropriate writ which was duly issued by it. The learned counsel for the respondent placed his reliance on Rashid A. Khan v. East Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lah. 733), Anjuman-e-Ahmadiya, Sargodha v.
The Deputy Commissioner, Sargodha and another (PLD 1966 SC 639), Miss Tahira Mahmooda v.
Chairman, Nomination Board and others, (PLD 1975 Azad J&K 108).
6. After hearing the respectiv contentions of the learned counsel for the parties it may be stated that normally even a law point which has neither been raised nor argued before the High Court could not be allowed for the first time to be raised before this Court. However, there are numerous cases decided by the Court in which purely law points which 'Were not raised before the High Court were allowed to be raised for the first time in this Court by seeking permission of the Court. In the instant case the point as to whether the writ petition is enforceable with regard to a contractual liability was not raised nor argued before the High Court... However, the appellants have raised the above plea specifically in their memorandum of appeal as well as in their concise statement elaborately contending therein that to enforce a contractual liability the writ petition is not maintainable. Our difficulty is enhanced by the fact that at the time of leave granting order a learned Judge of this Court granted the leave on the point as to whether the contractual liability is enforceable in exercise of writ jurisdiction or not. Therefore, in the circumstances of the case we allowed the learned counsel for the appellants to argue the said point and to satisfy us as to whether the instant case falls within the enforcement bf contractual liability or not.. 'The learned counsel for the appellants placed reliance on a case of this Court titled Azad Government and others v. Neelum Flour Mills, Muzaffarabad (1992 SCR 381), wherein it was observed that there is no law which provides for payment of handling charges. It was held that section 44 of the Azad Jammu and Kashmir Interim Constitution Act clearly indicates that writ jurisdiction is exercisable only if petitioner before High Court bases his grievance on violation of law and thus, any' grievance which is based on violation of a contract is clearly excluded. In the aforesaid case- it was' contended on behalf of the appellant that he did not make a prayer in his writ petition that contractual liability may be enforced. What was prayed before the High Court that order passed by Director Foods that handling charges would not be paid to the Mills and that the amount of handling charges already paid may be recovered from the Mills was without lawful authority. It was thus observed that the distinction created by the learned counsel is superficial and has no force. It was also observed that simple question before us is that under what authority the Mills claims that the handling charges should be paid to it.
' In another case titled as Sufi Muhammad Ramzan, Contractor, Municipal Committee, Mianwali v.
Secretary, Local Government and Rural Development, Punjab, Lahore and 2 others (PLD 1987 Lah.
262), it was observed that Constitutional jurisdiction can neither be used as a substitute for a suit for recovery of money nor for enforcement of contractual rights and obligations emanating.
' In another case titled A.K. Trading Corporation, Muzaffarabad through Chief Executive, Syed Mumtaz Ali Gillani, Muzaffarabad v.' Messrs. Z.R. Construction (Pvt.) Ltd. Through Chief Executive, Zaffar lqbal, Islamabad and 2 others (PLD 1998 SC (AJ&K) 7), it was observed that phraseology used in' section 44 of the AJ&K Interim Constitution Act clearly indicates that writ jurisdiction is exercisable if a grievance is based on violation of law. In section. 44 if an Act is without lawful authority the writ can issue to direct the respondent to do that which he is required by law to do or to forbid him from doing that act which he was not allowed by law to do. It was further observed that grievance raised in a writ petition must be based on law. Writ lies if law has been violated or in case of writ of prohibition when it is apprehended that it would be violated by a Government functionary. The rule that contractual liability could not be enforced through a writ petition is natural corollary of this principle because contract is not law and about a writ based on violation of contract or for enforcement of contract it cannot be said that it is based on a legal provision.
7. Thus, it was vehemently urged by the learned counsel for the appellants that the dispute between the parties is clearly based on violation of contractual liability, the same was not, enforceable by filing a Constitutional writ petition.
8. On the other hand, Mr. Muhammad Sayab 'Khalid, the learned counsel for the respondents placed reliance on a case titled Anjuman-e-Ahmadiya, . Sargodha v. The Deputy Commissioner, Sargodha and another (PLD 1966 SC, 639), where it was observed that an order to disentitle a person from an extraordinary relief under Article 98(2) of the Constitution of 1962 the alternate remedy available must be a remedy in law, that is a remedium juris and one not less convenient, 'beneficial and effective, if what is sought to be enforced by such an extraordinary remedy is legal duty of a public nature, the writ jurisdiction is not barred.
' In another case titled Miss Tahira Mahmooda, v. Chairman, Nomination Board and others (PLD 1975 Azad J&K 108), it was observed that if another remedy is neither adequate nor speedy the High Court in exercise of its extraordinary jurisdiction can grant the relief to the petitioner.
' In a case reported as Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lahore 733), it was observed that any serious contravention of rights may not be accepted as a lawful act. In proper and competently instituted proceedings Court would not hesitate to interfere particularly where there is additional allegation of mala fides. Court in such cases while correcting the error may direct that loss suffered by a citizen or treasury should be compensated personally by defaulting functionary. Even in the above-referred case the petition was dismissed by a learned Judge of Lahore High Court.
9. In the instant case the terms and conditions which were published in the proclamation in daily Nawa-i-Waqt, dated 18-2-1999, the second condition as pointed out earlier was that the successful bidder has to deposit 25% of the bid amount on the spot and shall remove the machinery within ten days after depositing the remaining amount otherwise the amount paid and the machinery shall be confiscated in favour of Government. No doubt this condition of proclamation published in daily Nawa-i-Waqt was violated by the Public Works Department, however, the violation of same does not fall within the term "violation of law" as no law was violated by the appellants. The respondent could not have enforced his liability by tiling a writ petition.
10. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the High Court by ordering the dismissal of writ petition by respondent.
However, respondent, if so advised, may proceed against the appellants for recovery of damages or any other appropriate relief before a competent forum. In the circumstances of the case we pass no order as to the costs.