' I intend to decide the following writ petitions by one consolidated judgment having similar facts and law:--
(1) W.P. No,18459 of 2001.
(2) W.P. No,17724 of 2001.
2. An agreement was executed between respondents Nos.1 and 2 on 10-2-1996 for three years commencing from 20-2-1996 with regard to the chair lift project at Patriota together with the support of facilities. The term of the agreement expired on 19-7-1999. Respondent No,1 offered the benefit with regard to chair lift project in question through public auction. The public auction was held by respondents after floating the public notice in the newspapers. Ten persons participated in the auction held by the respondents. Zaheer Ullah Khan's bid was the highest bid amounting to Rs,3.17 crores. The respondent malafidely executed a contract with respondent No,2 whose bid was not highest. In fact he was at serial No,3. Hence the present writ petitions.
3. Learned counsel of the petitioners submits that respondent No, 1 executed a contract with respondent No, 2 on 29-5-1999 for three years which shall expire on 15-6-2002. The action of respondent No,1 is in violation of the principle of natural. Justice. He further submits that petitioners are prepared to match the highest bid given by Zaheer Ullah Khan in the public auction held in 1998. He further urges that some deal had been made between respondents Nos.1 and 2. The petitioners are prepared to even top this bid. He further submits that petitioners approached respondent No,1 for redressal of their grievances with the aforesaid proposals but respondent No,1 failed to redress the grievance of the petitioners. The petitioners being aggrieved filed these writ petitions. He further submits that respondent No,1 is duty bound to execute a contract after public notice in terms of the rules and regulations of respondent No,1 . He further submits that action of respondent No,1 is in violation of the law laid down by the Superior Courts. In support of his contention he relied upon the following judgments:--
(1) Messrs Ittehad Cargo Services v. Syed Tasnim Hussain Naqvi (PLD 2001 SC 116).
(2) Messrs Airport Support Service v.The Manager Airport (1998 SCMR 2268).
(3) Shaukat Ali and others v. Government of Pakistan (PLD 1997 SC 342).
' Dr. Qazi Mohy-ud-Din, Advocate counsel for respondent No,2 submits that he has no objection to accept the writ petitions and respondent No,1 be directed to invite fresh tenders after public notice.
In support of his contention he relied upon Javed Iqbal & Co. v. Province of Punjab and others (1996 SC 1433). Learned counsel of respondent No,1 submits that petitioners did not participate in the auction held by respondent No,1 qua the project in question. Therefore, the petitioners have no locus standi to file these writ petitions as the petitioners are not aggrieved persons. He further submits that agreement was executed between respondents Nos.1 and 2 on 29-5-1999 and the petitioner filed these writ petitions in October, 2001 and September, 2001 after considerable delay without explaining the delay. Therefore, the writ petitions are liable to be dismissed on the well- known principle of laches. He further submits that the petitioners filed these writ petitions malafidely, with unclean hands in order to frustrate the agreement executed between respondents Nos.1 and 2 so that respondent No,2 be benefited. Consequently, respondent No,1 would sustain loss. He further submits that it is not in the interest of Itstice that the project in question be put for reaction during the subsistence of agreement between respondents Nos.1 and 2 in the off season.
He further submits that major portion of the agreement has already elapsed. He further submits that petitioners never approached respondent No,1 to obtain the project in question on lease. He further submits that respondent No,1 in the circumstances is ready to hand over project in question to the petitioners subject to the condition that the petitioners be directed to deposit the remaining amount in lump sum to respondent No, 1 . He further submits that respondent No,1 after expiry of the agreement shall invite fresh tenders in accordance with law after public notice in the newspapers.
Learned counsel of the petitioners was asked qua the offer made by the learned counsel of the respondent No,1. He submits under instructions that the petitioners are not interested to take the work order qua the remaining period of the agreement executed between respondents Nos.1 and 2.
In rebuttal he re-agitated his earlier contentions and summed up his arguments that the action of the respondents is based on mala fide, in violation of rules and regulations and law laid down by the Superior Courts.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
5. It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:--
(i) Auction was held by the respondent on 29-5-1999 after proper advertisement in daily Jang dated 19-5-1999, daily Pakistan, daily Nawa-e-Waqt and daily The News.
(ii) Ten parties participated in the auction. Zafar Ullah Khan had given highest bid amounting to Rs,3.17 crore who lost interest in the bid due to prolonged litigation as is evident from Annexure-B attached with the report and parawise comments filed by respondent No,1.
(iii) Respondent No,1 executed the contract with respondent No,2 on 29-5-1999 for three years which shall expire on 15-6-2002 after securing consent from said Zafar Ullah Khan.
(iv) The petitioners did not participate in the auction held by respondent No, 1 .
(v) The petitioners filed writ petitions on2-10-2001 and 26-9-2001 respectively.
(vi) Respondent No,2's counsel under instructions of respondent No,2 has no objection for acceptance of these writ petitions.
(vii) The petitioners stated in the petitions that petitioners approached respondent No,1 to take the project on lease whereas this fact was denied by respondent No,1 in its report and parawise comments.
In case the aforesaid facts area put in juxta position then it brings the case in the area that the writ petitions are liable to be dismissed on the well-known principle of laches as per principle, laid down by the Honourable Supreme Court in Khiali Khan v. Haji Nazir (PLD 1997 SC 304).
6. The aforesaid facts clearly reveal that the petitioners did not approach this Court with clean hands as the petitioners are not ready to take the project on lease for the remaining period in terms of the agreement executed between respondents Nos.1 and 2. It is settled principle of law that he who seeks equity must come with clean hands. Since the petitioners did not approach this Court with clean hands I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in the following judgments : --
(i) Nawabzada Ronaq Ali's case (PLD 1993 SC 236) and (ii) Rana Muhammad Arshad's case (1998 SCMR 1462).
It is also admitted fact that the petitioners did not participate in the auction held by respondent No,1 on 29-5-1999. Therefore, the petitioners are not aggrieved persons. In arriving to this conclusion I am fortified by the law laid down by this Court in Rashid A. Khan v. West Pakistan Railway Board (PLD 1978 Lahore 737). The relevant observation is as follows:-- "On the face of the assertions made in this case the petitioner is not the lowest tenderer and unless his position is so, he cannot claim any benefit nor can he hope that his tender would be accepted. It cannot be said that he has suffered the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
' It is pertinent to mention here that the aforesaid judgment was upheld by the Honourable Supreme Court. The aforesaid proposition of law was also considered by this Court in Malik Muhammad Imtiaz v. Cantonment 'Board (NLR 1988 Civil 422) and laid down the following principle:-- "He would have been certainly an aggrieved person if he had made a bid in the auction held out by the respondent Board but without taking part in the same and sitting simply as a over looker at a reasonable distance he could not claim himself to be an aggrieved person."
' The aforesaid proposition is also supported by following judgments:--
(i) Mohabat Ali v. Abdul Jabbar (1989 ALD 347) and (ii) Haji Muhammad Ismail v. Government (1987 MLD 2457).
' It is also admitted fact that the contract shall have to expire automatically on 15-6-2002 which means that major period of the contract had already expired. In such circumstances it is not in the interest of any party that the contract executed between respondents Nos.1 - and 2 be terminated by the intervention of this Court. In arriving to this conclusion I am fortified by the law laid down by this Court in Rasheed Mahmood v. Administrator District Council (PLD 1997 Lahore 407). The relevant observation is as follows:- "The real question is that respondent-Council and respondent-Contractor having worked out the agreement for almost 7/8 months, should this Court intervene at this juncture and direct fresh auction when only about 2/3 months are left to the remaining period of the lease. I am clear in my mind that the answer is no. Interference at this juncture will upset the apple cart and smooth working of the contact. I am also mindful of the fact that offer of respondent No,6 was higher to the offer of the petitioner by about 1-1/2 lass. It has been stated at the bar that a sum of Rs,3-1/2 crores approximately has since been paid by respondent-contractor to respondent Zila Council. If the auction dated 5-8-1996 is declared as illegal at this juncture, lot of complications are likely to arise.
The Constitutional writ being not a writ of course, can be withheld if the issue of the same is likely to create more problems."
' In view of the aforesaid circumstances the judgments cited by the learned counsel of 'the petitioner and respondent No,2 are distinguished on facts and law and have no relevance to resolve the present controversy between the parties.
In view of what has been discussed above, these writ petitions have no merits and the same are dismissed