1. ' The brief facts out of which the present writ petition arises are that the ordinary stones from Block No,1, Chak No,48/S.B. District Sargodha was put to auction on 6-4-2001. The petitioner alongwith others participated in the auction proceedings held by the respondent in obedience of the advertisement made by the respondents through public notice in newspapers. The bid of the petitioner was highest .Amounting to Rs,20 lacs for 5 years mining lease over the said area. The licensing authority rejected the bid of the petitioner considering it low. Since the lease/area had previously been granted against bid of Rs,65,00,000 in the year 1997 and thereafter bid of Rs,42,00,000 received for the lease in August, 1999 was also rejected being low. The petitioner being aggrieved filed appeal before the Director of Industries and Mineral Development/Appellate Authority Punjab which was accepted vide order, dated 7-6-2001. The work order was allegedly issued to the petitioner by the respondents. Respondent No,5 filed application before respondent No:2 on the ground that the Mining lease has been granted to the petitioner for a low bid as compared to the work/potential of the area causing loss to the public exchequer. Respondent No,2 set aside the order of the appellate authority vide impugned order, dated 27-7-2001. Hence the present writ petition.
2. Learned counsel of the petitioner submits that respondent No,5 was not aggrieved person as respondent No,5 is not a registered contractor under the provisions of the Punjab Minor Mineral Concession Rules, 1990. He further submits that respondent No,5 did not participate in the proceedings. Therefore, he was not aggrieved person and has no locus standi to file representation before respondent No,2. The representation filed by respondent No,5 before respondent No,2 was not maintainable as is evident from rule 49(1) of the aforesaid Rules on the simple ground that respondent No,5 is not aggrieved person. He further submits that work order has already been issued to the petitioner in view of the order of the Appellate. Authority. Therefore, respondent No,2 was erred in law to accept the representation filed by. Respondent No,5 vide the impugned order.
2. He farther submits that impugned order is not sustainable in the eyes of law and is in violation of the mandatory provisions of law and the law laid down by the superior Courts. In support of his contention he relied upon M/s Ittehad Cargo Service v. M/s Syed Tasnim Hussain Naqvi (PLD 2001 SC 116). He further submits that the petitioner has invested huge amount amounting to, Rs,25,00,000 in this business including paying Rs,10,00,000 to the respondent Department and started his work legally. He summed up his arguments that respondent No,2 has no power or authority to re-auction the lease before expiry of the lease period as the lease orders have become final. Learned law officer submits that the petitioner wants enforcement of a contract through this Constitutional petition which is not in accordance with the law laid down by the 'superior Courts. In support of his contention he relied upon the following judgments:--
(1) M/s. Momin Motor Company v. RTA (PLD 1962 SC 108).
(2) The Chandpur Mills Ltd. v. The District Magistrate (PLD 1958 SC 267).
(3) Mir Rrasool Bux Khan Sundrani & Co. v. Peoples Municipality Sukkur (PLD 1975 Karachi 878).
3. ' He further submits that respqndent No,2 has lawful authority to set aside order of the Appellate Authority by virtue of rule 49(2). He further submits that judgment relied upon by the learned counsel of the petitioner is distinguished on facts and law as in the quoted judgment there was a concluded contract whereas in case of the petitioner the bid of the petitioner was rejected with cogent reasons by the licensing authority. He further submits that Appellate Authority accepted the appeal of the petitioner in violation of the mandatory provisions of rule 15. He further submits that offer of respondent No,5 was not accepted by respondent No,2 and directed the Competent Authority to put the lease for reaction. Therefore, the petitioner is not an aggrieved person.
4. Respondent No,5 submits that he has filed application before respondent No,2 to allow him to withdraw the amount deposited by him on 3-1-2002. He further submits that petitioner had given offer before this Court to take the lease in question for amounting to Rs,28,00,000 whereas he did want to take lease in question only for Rs,27,00,000 as offer made by him before respondent No,2.
5. Learned counsel of the petitioner in rebuttal submits that lease was put in auction for nine times but the same was not finalised as is evident from the order of the Appellate Authority whereas this fact was not properly scrutinized by respondent No,2 in the impugned order. Respondent No,5 is not interested to pursue the matter anymore and the petitioner is ready to take the lease in question for amounting to Rs,28,00,000.
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. The contention of the learned Law Officer that petitioner wants enforcement of contract, therefore, the writ petition is not maintainable has no force. The writ petition is maintainable as the petitioner's bid was highest bid. In arriving to this conclusion I am fortified by the following judgments:--
(1) Bashir Ahmad Bilour v. Municipal Committee Peshawar (PLD 1976 Peshawar 1).
(2) Arsala Khan v. Bashir Ahmad Bilour (PLD 1976 SC 581).
6. ' The Honourable Supreme Court has considered the aforesaid proposition of law in M/s Airport Support Services' case (1998 SCMR 2268) and laid down the following principle:-- "Further a contract, to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. "
7. ' The aforesaid proposition of law is also supported by the law laid down by the Honourable Supreme Court in Shaukat Ali's case (PLD 1997 SC 342). It is better and appropriate to reproduce rule 49 to resolve the controversy between the parties:- "49. Revision.---(1) Any person aggrieved by the order of the Director of Industries and Mineral Development, Punjab may file a revision petition with the Government within a period of 30 days from the date of such order.
(2) The Government, suo motu, or on a petition of an aggrieved person may, at any time, call for the record of any proceedings under these Rules to examine the valadity and legality of the order or action and may pass such order as it may deem necessary: ' Provided that no order Wider these rules shall be passed without giving the person to be adversely affected an opportunity of being heard."
8. ' The aforesaid rule is somewhat similar to paragraph 29 of Martial Law Regulation 115 of 1972 which was interpreted by this Court in Sardar Ashiq Muhammad Khan Mazari's case (PLD. 1977 Lahore 461) and laid down the following principle:-- "41.: The expression 'of its own motion' is not unknown to law. It is a term of art and is meant to clothe an authority with the powers to act even when it has not been moved by anybody to do so.
9. Information leading to such action would ordinarily be expected to come to the knowledge of an authority during an' inspection of the office of the subordinate authority or during the course of any other proceedings. So long as an authority has not been moved by a person to act, the person not being necessarily aggrieved himself, the authority would be deemed to have proceeded of its own motion."
42. When, however, a person, particularly one who is aggrieved, moves an authority in the matter, any action taken by that authority consequent upon such application cannot by any stretch of imagination be dubbed as action of "it's or his own motion". The importance of this distinction would partly rest upon whether the circumstances in which an authority can move of its own motion and those in which it moves on an application being presented are subject to different limitations.
10. ' In view of the aforesaid principles enunciated by this Court in the spirit of aforesaid rule respondent No,5 was not aggrieved person.. However, illegality has come to the knowledge of respondent No,2 through application of respondent No,5. The order of the Appellate Authority is in violation of rule 15 of the aforesaid Rules which is reproduced hereunder:-- "15. Negotiations for the improvement of bid.---If in the opinion of the Licensing Authority, the highest bid received for an area in the auction is not adequate, it may, before refunding the earnest money to the parties who had participated in the auction for the said area, negotiate with them to improve the bid to its satisfaction: ' Provided that if the bid is not improved to the satisfaction of the Licensing Authority, it may reaction the area, and may accept the highest bid received in the said re-auction."
11. ' The aforesaid rule was interpreted by this Court in Syeda Shaida Tasnim v. The Province of Punjab (PLD 1995 Lah. 110) and the order was set aside as the Appellate Authority granted lease right without associating contesting bidder. It is pertinent to mention here that in the present case the Appellate Authority accepted the bid of the petitioner without associating the contesting bidders as is evident from the order of the Appellate Authority. Therefore, order of the Appellate Authority is without lawful authority. It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties:-- "The block in question should be re-auctioned starting the bid from Rs,27,00,000 offered by the complainant/petitioner. In case the petitioner does not turn up to participate in auction, the 1/5th already deposited by him will stand forfeited in favour of the Government. The licensing authority is directed to complete the arrangements for reauction at the earliest."
12. ' The aforesaid operative part clearly reveals that the impugned order was passed in pub] it.
13. Interest and the door of the petitioner was not closed. Therefore, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honorable Supreme Court in the following judgments:--
(1) Government of Punjab v. Muhammad Naseem and others (1999 SCMR 2063).
(2) Nawabzada Raunaq Ali' case (PLD 1973 SC 236).
(3) Rana Muhammad Arshad's case (1998 SCMR 1462).
14. ' However, respondent No,2 is directed not to accept the application of respondent No,5. The respondents are directed to complete the arrangement for the reauction within one month after completing all the legal formalities after public notice in the newspapers. The respondents are directed to submit report after finalizing the auction proceedings within prescribed period to the Deputy Registrar (Judicial) of this Court. Respondent No,2 is also directed to monitor the proceedings so that transparent re-auction should be held in accordance with law. Office is directed to send copy of this order to the respondents immediately.
15. In view of what has been discussed above, this writ petition is disposed of with the aforesaid observation.