On 10-7-1996 the respondent filed a suit against the petitioners. In the plaint it was stated that a notice was issued in the Press on 30-3-1995 for auction of suit plot mentioned in the plaint on 19-4- 1995. The respondent participated and made a highest bid of Rs.20,500 per Marla. He had made a deposit of Rs. 37,500 before the commencement of the auction and thereafter according to the terms of auction he had made another deposit making total deposit or Rs.68,334. However, on 5-6- 1995 the District Housing Committee rejected the said bid. It was stated that the respondent was not given a notice and was not heard before the rejection of the bid. With these averments a decree for declaration was sought that the respondent is a successful bidder and that the rejection of the bid is illegal and void and he is entitled to get ownership of the plot after paying the remaining amount consideration. The suit was resisted by the petitioners with the averments that bid was subject to approval by the District Housing Committee which was not approved and respondent was informed accordingly and as such there was no contract between the parties.
Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has no cause of action or locus standi to bring this suit? OPI
(2) Whether the order dated 5-6-1995 is illegal, void, mala fidely and is in-- effective qua---the rights of the plaintiff? OPP
(3) Whether the plaintiff is entitled to a decree for declaration and mandatory injunction as claimed for? OPP
(4) Relief.
Evidence' of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree dated 14-1-1998. A first appeal filed by the petitioners was dismissed by the learned District Judge, Okara, on 14-9-1998.
2. Learned counsel for the petitioners contends that for all purposes the learned Courts below have passed a decree for specific of performance when admittedly there is no contract between the parties and as such they have acted without jurisdiction. Learned counsel for the respondent on the other hand relies upon the case of Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan (2001 CLC 1412) to urge that the rejection of the bid without notice and hearing him was not valid and thus he supports the impugned judgments and decrees.
3. I have examined the records, with the assistance of the learned counsel for the parties. It stands admitted in the pleadings as well as in the course of evidence, that the petitioners had invited bids or offers for the said plots. The respondent did make an offer but it was not accepted by the petitioners. This being so, there was no contract between the parties which of course comes into existence when an offer is accepted. So far as the said judgment being relied upon by the learned counsel is concerned. I find that same was given by this Court in exercise of Constitutional jurisdiction. To my mind, the judicial review in exercise of Constitutional jurisdiction of executive act is on a different plank from the civil suit filed by a party seeking specific performance of a contract.
It is but obvious that there should be an existing contract which can be ordered to be specifically performed by a Court in accordance with provisions of Specific Relief Act, 1877. I may here refer to the case of City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and others (2002 SCM R 1150) which came up before the Hon'ble Supreme Court in somewhat similar circumstances as were there in the said case being relied upon by the learned counsel for the respondent. Their lordships thus observed in para.11 of the judgment appearing at page 1154 of the report:-- "11. Perusal of different provision of the Contract Act reveals that a tender notice is merely an invitation for making an offer and not by itself an offer or proposal. The advertisement does not constitute a proposal. Only by acceptance of offer or proposal by the person calling for tender it becomes a promise or agreement. When offer of tenderer is not accepted by the relevant authority, no legal right accrues to such tenderer. An agreement enforceable by law becomes a contract. The true test for deciding whether a valid contract is made between the parties or not is to ascertain if the parties were of one mind on all the material terms at the time it is said to have been finalized and whether they intended that the matter was closed and concluded between them. "
I may further note here that in the judgment of this Court against which the said appeal was filed before the Hon'ble Supreme Court it had been directed that the petitioner in the case be summoned by the respondent/ Government and further direction was issued to provide the detail of the decision and reasons (for rejection of bid), to hear the petitioner and to decide the matter keeping in view the principles of fairness and justice as also larger public interest. The Hon'ble Supreme Court was pleased to set aside the said direction.
4. Respectfully following the said dictum of the Hon'ble Supreme Court of Pakistan, I find that the impugned judgments proceed in direct contravention thereof and that too in a suit which for all purposes is a suit for specific performance of a contract.
5. This civil revision is accordingly allowed. Both the impugned judgments and decrees are set aside and the suit filed by the respondent/plaintiff is dismissed without any order as to costs.