2013 PLP 1737 (CLC)

ATIR MAHMOOD, J.

This civil revision challenges the legality of judgment and decree dated 17-9-2003 passed by learned Additional District Judge Rahim Yar Khan who accepted the appeal of the respondents, set aside the judgment and decree dated 17-4--2003 and dismissed the suit of the petitioner.

2. Brief facts of the case are that the petitioner filed a suit for declaration on the ground that he participated in the open auction proceedings conducted with respect to Plot No.6-A, Block 'Y' at Low Income Housing Scheme No.II, Model Town Sadiqabad conducted on 5-9-1995; that he offered the highest bid @ Rs.17,900/- per marla and on conclusion of the auction, deposited 1/3rd of the total price with the respondents; that the bid money was enhanced by the respondents to Rs.24,500/- per marla unilaterally; that the petitioner vide letter dated 13-11-1995 was directed to deposit the enhanced amount till 30-11-1995, otherwise his earnest money already deposited with the respondents will be forfeited; that the petitioner to avoid forfeiture of the money already deposited with the respondents deposited the enhanced amount as well. In the plaint, it was averred that since the petitioner was successful bidder in the bidding finalized at Rs.17,900/, therefore, the respondents have no right to enhance the bid money unilaterally, therefore, by filing the suit a declaration was sought that the letter No.2382/ST, dated 13-11-1995 for payment @ Rs.24,500/- per marla was void ab initio and inoperative against the rights of the plaintiff, and as mandatory injunction claimed the refund of excess amount so received by the defendants after rendition of the account.

3. The suit was opposed by the respondents. They filed the written statement. The main stance taken by the respondents was that the bid of the petitioner was accepted conditionally @ Rs.24500/- per marla and he deposited the same with his free-will and without any coercion whereafter he had no right to impugned the same.

4. Out of divergent pleadings, the issues were framed. The learned trial Court recorded evidence adduced by the parties and after hearing both sides, decreed the suit of the plaintiff. The appeal was filed by the respondents which was accepted by learned Additional District Judge Rahim Khan vide impugned judgment and decree dated 17-9-2003 resulting in dismissal of the suit of the petitioner. Hence this civil revision.

5. Learned counsel for the petitioner inter alia contends that the petitioner being the highest bidder in the auction proceedings of the suit property was entitled to get the property at the bid offered by him and the respondents have no right to enhance the bid money to Rs.24,500/- from Rs.17,500/- per marla unilaterally; that the judgment passed by learned trial Court is based on cogent reasons; that the learned lower appellate court has failed to appreciate the evidence available on record and passed the impugned judgment in arbitrary and colourful manner; that the suit of the petitioner was within time; that as per terms of the auction, the competent authority has right to accept or reject any bid but it has no right to enhance the bid money which aspect of the case was ignored by learned Additional District Judge. Learned counsel avers that the impugned judgment and decree being against law and fact merits to be set aside by way of allowing the instant revision petition.

6. Conversely, learned Assistant Advocate-General submits that the suit of the petitioner was barred by time; that as per terms and conditions, acceptance of highest bid was subject to approval of the competent authority; that the competent authority who has every right to accept or reject any bid, accepted the bid of the petitioner conditionally with enhance of bid money from Rs.17,900/- to Rs.24,500/-. He argues that after acceptance of the bid in the said manner, the petitioner deposited the money @ Rs.24,500/- meaning thereby he accepted the condition imposed by the competent authority. He avers that after having accepted the terms, the petitioner has no right to seek refund of the enhanced bid money. Learned Law Officer prays that the civil revision having no merit be dismissed.

7. Arguments heard. Record perused.

8. Having been offered the bid to the tune of Rs.17,900/-, the petitioner was the highest bidder in the auction of land conducted by the respondents on 5-9-1995. At the culmination of the auction proceedings, the petitioner deposited 1/3rd of the bid money with the respondents as per terms and conditions of the auction. Thereafter, the auction proceedings were placed before the District Housing Committee but instead of rejecting or accepting the bid, the price of the bid amount was unilaterally enhanced to Rs.24,500/- from Rs.17,900/- which enhanced amount was deposited by the petitioner. The contention of learned counsel for the petitioner is that the petitioner deposited the enhanced bid money under coercion as he was told that if he does not deposit the enhanced amount within the specified time, the earnest money already deposited by the petitioner would be confiscated.

9. The petitioner while appearing as P.W.-1 deposed according to his assertion in the plaint and stated that to save his amount deposited as earnest money, i.e. Rs.119,335/-, he was compelled and coerced to deposit the amount of Rs.370,665/- which was in excess to the tune of Rs.132,000/-. In cross-examination, he categorically denied the suggestion that any offer was made to him to withdraw the amount deposited as earnest money, if the enhancement bid was not acceptable to him. In rebuttal DW-1 Muhammad Iqbal District Officer Housing and Town Planning deposed that terms and conditions were accepted by the plaintiff who did not object to the enhancement of the bid amount. He produced the letter No.2382 S.B. dated 13-11-1995 as Exh.Dl (produced as Exh.P2 by the plaintiff), agreement dated 21-12-1995 as Exh.D2 and the decision of the Housing Committee as Exh.D

3. In cross-examination, he admitted that according to the letter Exh.D1, the plaintiff was not given any option to withdraw his amount deposited earlier.

10. From perusal of the evidence produced by the parties, which has minutely been examined by this Court, there remains no doubt that the District Housing Committee was competent to accept or reject the bid but as per terms and conditions of the auction, the committee was not competent to increase the bid amount offered by the highest bidder. Condition No.8 is relevant which is reproduced as under:

"

8. The acceptance of the highest bid shall be subject to the approval of competent authority as specified in the auction Notice. The competent authority shall declare its approval or rejection, as the case may be, through a notice affixed on the notice-board in the office of the Deputy Director, Housing and Physical Planning Department concerned within a period of sixty days from the date of auction. It shall be the responsibility of the bidder to ascertain whether the acceptance has been declared or not. In case the approval or rejection of the bid is not declared within the aforesaid period of time, the bidder shall have the right to withdraw his bid and to obtain the refund of the security and the earnest money deposited by him." Terms and conditions of the auction (Exh.P4) nowhere suggest that the said committee or the competent authority has unilateral power to increase the bid. The impugned judgment of lower appellate court whereby the findings of the trial Court on Issues Nos.1, 2, 2-A have been reversed does not find support from the evidence available on record or from the law. It is noteworthy that while reversing the findings of the trial court, learned lower appellate court has non-suited the petitioner/plaintiff on the point of limitation which is untenable.

11. Learned Law Officer appearing on behalf of the respondents has relied upon the law laid down in case titled "Commissioner of Income Tax Companies Zone-IV, Karachi v. Hakim Ali Zardari (2006 SCMR 170)" to assert that the suit was barred by time. He states that the basic letter challenged in the suit dated 13-11-1995 whereas the suit was filed on 24-7-1997. He further states that under Article 14 of the Limitation Act, one year limitation period has been provided for filing of suit for cancellation of an order passed by a government functionary but the petitioner has filed the suit after one year and 8 months which is badly hit by law of limitation. The case-law referred to by learned Law Officer is not of any help to the respondents as it says that the question of limitation cannot be left to the pleadings of the parties and it is duty of the court to notice the point of limitation.

12. The petitioner has not sought cancellation of the letter dated 13-11-1995 but declaration that the same is void ab initio being inoperative and having no effect upon the rights of the petitioner and as a consequence has prayed for a mandatory injunction for the return of the amount which was deposited by him under compulsion and coercion. I am of the firm view that where the cancellation of an order by a government officer has been sought, Article 14 of the Limitation Act will attract but where the cancellation of an order by a government officer is not sought rather a declaration is sought that it is inoperative upon the rights of the plaintiff, Article 120 of the Act is attracted which provides six years to file a suit. As such, the suit of the petitioner-plaintiff was within time. I am guided by the law laid down in the cases titled "Malhar v. Government of Sindh and others (2005 CLC 285) and "Punjab Province v. Nisar Ahmad (PLD 1960 (W.P.) Lahore 801)". Excerpts from the said judgments relevant to the case in hand are reproduced hereunder:

2005 CLC 285 "

9. A plain reading of the above position of law shows that period of one year limitation provided in Column No.II starts from the date of the act or order passed by an Officer of Government in his official capacity, which a party seeks to get set aside. To say it in other words, bar to maintainability in terms of Article 14 of the Act will be applicable to a suit where the relief sought in the plaint is to get an order of the nature mentioned in column I, "set aside" and not to a suit where the relief sought is declaratory in nature, the impugned act or order is void, without jurisdiction or mala fide." PLD 1960 (W.P.) Lahore 801 "11 It has already been mentioned earlier in this judgment that the two suits are for declaration that the orders of the Provincial Government requiring the plaintiffs to place the subject-matter of the bequest at its disposal were illegal, ultra vires and ineffective against the right of the plaintiffs. These suits are not for setting aside such orders, although that would be the necessary consequence if the declarations demanded by the two plaintiffs are granted in their favour. What has to be seen in this context is whether the impugned orders of the Government are void ab initio or only voidable. In the first case in order to grant the relief to the plaintiffs it is not necessary to set aside such orders but in the second case it is absolutely essential that such orders should be clearly set aside, otherwise no effective relief can be granted to the plaintiffs. In the case where the orders of the government are void ab initio and it is not necessary to set them aside in order to grant the relief to the plaintiffs, I do not think that Article 14 of the Limitation Act would have any application but, in the second case, where the orders are valid, but in order to make them effective they have to be avoided, then whatever the language of the plaint, Article 14 would come into play and if brought more than one after the impugned order is passed the suit would be barred by time."

13. Another objection which has been raised by the learned Law Officer that the petitioner was estopped to file the suit as he accepted the enhanced price of bid and deposited the amount is not supported by any evidence or record. Paragraphs Nos.2 and 6 of impugned letter dated 13-11-1995 (Exh.P2) are reproduced as under:

2 You are required to deposit the remaining cost amounting to Rs.370665/- upto 30-11-95 failing which the bid shall STAND CANCELLED and the amount already deposited shall be liable to be FORFEITED.

6. In case you commit breach of any of the said conditions this auction shall be liable to cancellation, the agreement shall be rescinded, the plot resumed and the cost already deposited shall be forfeited to Government."

14. It is evident from bare perusal of above paragraphs that there was no option with the petitioner except to deposit the bid money enhanced unilaterally by the department meaning thereby he deposited the money with the respondents under coercions and compulsion. There is no question of any estoppel against the petitioner-plaintiff. Even the learned appellate court in the impugned judgment has held as under:

"That the competent authority as per conditions of para No.8 of Exh.P-4 could approve or reject the highest bid and in case of rejection, the respondent/plaintiff was entitled to refund of security and earnest money. Hence, entries at para No.2 of letter No.2382/St, dated 13-11-1995 Ex.D-3 that "in case of default in payment of amount of plot at the rate of Rs.24,500/- per marla, the already deposited amount shall be liable to be forfeited" is surely without jurisdiction."

15. In light of what has been discussed above, the letter dated 13-11-1995 passed by Secretary District Housing Committee Rahim Yar Khan is a void order as the respondents had no authority to enhance the bid money at their own. The judgment and decree passed by learned appellate court is against the law and fact, therefore, it cannot sustain in the eye of law. Resultantly, this civil revision is allowed, the impugned judgment and decree dated 17-9-2003 is set aside and the judgment and decree passed by learned trial Court is restored. SAK/A-100/L Revision accepted.