1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment dated 11-9-2002 passed by a learned Single Judge of the Lahore High Court, Lahore, whereby Writ Petition No, 14498 of 2002 filed by respondent No,1 Shahzad Asghar Dar was accepted and it was ordered as under:- "7. In view of the above discussion, I accept this petition. As the petitioner has already deposited Rs,2,00,000 as security, respondent No,2 is directed to advertise re-auction of the lease of said 'Bakar Mandi' within 15 days and the proceedings of the auction shall be conducted in an open competition at the site. Reserve Price shall be Rs,14,00,000 (rupees fourteen lacs only). In case nobody offers bid more than the reserved price or nobody comes forward to get the lease of more than the reserved price, the petitioner shall be given the lease on the said reserved price or for the amount if offered by him more than this amount. In case the petitioner fails to participate in the auction proceedings, the amount of Rs,2,00,000 already deposited by him as security shall be confiscated in favour of the Government and he will be black listed for taking part in any auction in future for five years.
2. ' The facts briefly narrated are that an advertisement appeared in daily "Pakistan" on 10-7-2002 wherein it was notified that auction of 'Bakar Mandi' Unit Zafarwal, District Narowal, would be held on 20-7-2002 and in case it could not take place on that day, it would be held on 25-7-2002 and 29-7-2002.
3. ' It is the case of the petitioner who took the lease rights of above 'Bakar Mandi' for a consideration of Rs,8,25,000 that nobody turned up on 20-7-2002, as such it was postponed to 25-7-2002, on which date three persons i.e, the petitioner and two others namely Muhammad Iqbal and Riaz, deposited call deposit of Rs,1,00,000 on 25-7-2002 and the auction was held wherein the petitioner was the highest bidders for a consideration of Rs,8,25,000. A work order, according to the petitioner, was issued on 27-7-2002 whereafter the petitioner embarked upon the collection of fee aforesaid 'Bakar Mandi'. An argument has been advanced that- the matter, being a past and closed transaction and work order having been issued after execution of the agreement, the High Court did not have any jurisdiction to interfere in this contractual matter in the exercise of its Constitutional jurisdiction.
4. ' On the contrary it was the case of respondent No,1 before the High Court in his writ petition that no auction whatsoever had taken place as he and other contractors were informed that a new date would be announced shortly. It was his further case that he had already moved an application alongwith call deposit of Rs,1,00,000 before the Tehsil Nazim, Narowal (respondent No,2) and showed his willingness to take said Tease rights for Rs,14,00,000 for 11 months. It was further pointed out by him that last year the bid was for Rs,11,25,000 for 11 months while for the current year it had been given to the petitioner for a consideration of Rs,8,25,000 for 12 months causing net loss of Rs,4.00,000 ' Accordingly, respondent No,l's aforesaid writ petition was accepted by a learned Single Judge of the Lahore High Court through his judgment dated 11-9-2002 directing him to participate in the auction proceedings at the reserved price of Rs,14,00,000 failing which the amount of Rs,2,00,000 already deposited by him as security shall.Be confiscated to the Government. Hence, this petition for leave to appeal.
5. We have considered the contentions advanced by the learned counsel for the parties and have gone through the entire documents placed on record with their assistance. The argument of the learned counsel for the petitioner that the matter, being a past and closed and the petitioner having embarked upon the collection of fee, the High Court under Article 199 of the Constitution did not have any jurisdiction to interfere in the matter, is devoid of any force. It is true that sencity has to be attached to a concluded contract but the said contract must be transparent and shall have been made keeping in view the overall interest of the leasing body. It should not be tainted with mala fide or through underhand means. The public exchequer shall not be made to suffer due, to exercise of power in an arbitrary and unreasonable manner giving extra favour to one side at the cost of others. Reference in this behalf is made to the case of Messrs Ittehad Cargo Service and others v. Messrs Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116) relied upon by, the petitioner himself where it was held as under:-- "8. The first contention urged in support of the petitions was that the High Court had no jurisdiction to entertain the respondent's writ petition as the contracts challenged therein were concluded contracts. We are afraid the contention cannot prevail as it tends to curtail the scope of judicial review by placing an uncanny fetter on the Constitutional jurisdiction of the High Court to test the validity of grant of a concluded contract on the touchstone of well-settled and well-known grounds of challenge. No doubt a concluded contract commands respect and its sanctity is to be preserved as a matter of public interest/public policy but this -does not mean that the order in respect of its grant is sacrosanct and unassailable. The High Court in exercise of its Constitutional jurisdiction is possessed of power to examine the validity of the order in regard to grant of a concluded contract and strike it down on the grounds of mala fide, arbitrary exercise of discretionary power, lack of transparency, discrimination and unfairness etc. Provided the challenge is made promptly and contentious questions of fact are not involved. The view gets support from the following observations made in Messrs Airport Support Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi and others (1998 SCM R 2268):- ' 'Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, proper, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviation, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided' ."
6. ' The question was also considered in Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others (PLD 1992 Karachi 283) and it was observed: ' "There could be no cavil with the proposition that enforcement of a purely contractual obligation could not properly form the subject-matter of proceedings under Article 199 of the Constitution.
7. However, it could not be ignored that the State had a Constitutional obligation to act fairly even when performing an administrative function. Therefore, when a party complained before the Court that the State while awarding a contract to a party had acted, in an unfair or arbitrary manner or had discriminated against one of the parties who contested for the award of the contract, such grievance could be looked into by superior Court in exercise of its powers of judicial review under Article 199 of the Constitution and if the Court was satisfied that the Government while entering into a contract had acted arbitrarily or in an unfair manner or had discriminated between the parties before it in matter of awarding the contract, it could interfere and strike down such action."
8. ' The reliance of the learned counsel for the petitioner on the case of Messrs Ittehad Cargo Service and others v. Messrs syed Tasneem Hussain Naqvi and others (supra) where the learned Judges of this Court upheld the concluded contract and by setting aside the order of the High Court passed under Article 199 of the Constitution is not apt as the same is totally distinguishable. In the precedent case the writ petitioner was not even pre-qualified by the Vigilance Directorate after detailed scrutiny on the strength of the declared policy of Pakistan Railways. This Vigilance Directorate was appointed after approval by the National Security Council and the Cabinet so as to watch the interest of Pakistan Railways in awarding the contract. It was further noticed in that case that the writ petitioner deposited bogus experience certificate to get the contract in question and his application for prequalification was not only scrutinized by prequalification committee but also by the Vigilance Directorate and his case was not considered. In such circumstances no reliance can be placed upon the said precedent being totally distinguishable .From the case in hand.
9. Admittedly. In the present case the auction for 11 months for the last year was for Rs,11.25,000 while present lease rights have been given for Rs,8,25,000 with a net loss of about Rs,4,00,000 to public exchequer. The judgment of the High Court is just and proper as it has protected the interest of both the sides. The petitioner is at liberty to participate in the auction proceedings.
10. ' Resultantly, for what has been stated above, the instant petition being without any merit and force is hereby dismissed and leave refused.