P L D 2009 Lahore 506 (PLP)

UMAR ATA BANDIAL, J.

The petitioner was awarded a contract for three years from 1-7-2005 to 30-6-2008 by the respondent Cantonment Board ("Board") for collecting cattle mandi fee in the area of the Board. Before expiry of his contract the petitioner commenced litigation in the civil Court at Sargodha to have the date of expiry of his contract extended and thereby to delay a fresh auction of the collection rights.

2. However, the auction was held on 29-5-2008 in which the petitioner came out as the highest bidder at Rs.6.0 million. However, the Board was allegedly hostile toward the petitioner for having commenced litigation and therefore, it passed a board resolution dated 6-8-2008 cancelling the petitioner's bid and forfeiting his security amount of Rs.1.0 million on the sole ground that the petitioner had resorted to litigation against the Board. Accordingly, a fresh auction was directed to be held. Three days later by another resolution dated 9-8-2008 the respondent Board treated the receipt of higher, counter bids of Rs.6.5 million and Rs.6.7 from third parties outside the auction as ground to justify fresh auction of collection rights of cattle mandi fee that had already been resolved.

3. By this petition the public notice dated 4-10-2008 of the fresh auction was challenged. The petition was heard on 8-10-2008 when the auction was allowed to proceed. In the fresh auction held on 10-10-2005, the highest bidder offered a price of Rs.14.2 million. However, he did not give the corresponding 10% deposit with his bid. It transpires that later on the highest bidder disappeared from the scene when the respondent Board demanded an enhanced deposit proportionate to his offer. As a result, the impugned action for a fresh auction has failed and so also has the ground, therefore, namely, a higher counter bid. The surviving basis for rejecting the petitioner's highest bid in a contested auction stands exposed as none other than sheer hostility nurtured by the Board for the petitioner. Ultimately, therefore, it is the public interest that has suffered. It is clear from its resolution of 6-8-2008 that the Board adopted undue haste to cancel the petitioner's bid meted as punishment upon the petitioner for approaching a Court of law. Such a mindset is contrary to the law because seeking justice before a Court is the Constitutional right of every citizen.

4. The learned counsel for the Board assures that the members of the Board do not entertain any personal grudge against the petitioner and they shall act reasonably, fairly and justly in the conduct and conclusion of a fresh auction by the Board if the same is permitted by the Court. therefore, if the petitioner participates in a fresh auction then the Board shall assess the merits of his bid fairly and strictly in accordance with the law referred on the petitioner's behalf, namely, rulings of the Honourable Supreme Court in New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan Karachi PLD 1999 SC 1126 and Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC

116. Under the said ruling the overriding obligation of public functionaries like the respondent in the sale of public property, is to act reasonably, fairly, justly, without discrimination and without adopting unfair procedure.

5. It is true that owing to the disappearance of the highest bidder in the re-auction, the case of the respondent-Board has fizzled out and it seems that the only option left with them is to have fresh auction. This is because the claim of the petitioner to be confirmed as the highest bidder and to be awarded the contract stands superseded by events. The higher offer received in the subsequent auction of 10-10-2008 has undermined the petitioner's bid from being the best price offered for the auction rights. It is a principle of law that the auction of public property must be conducted with complete transparency to secure the highest price therefor. As the subsequent auction though abortive put the supremacy of petitioner's bid into doubt, therefore, the only appropriate course is for a fresh auction of the collection rights of cantonment cattle mandi fee to be held so that transparency is not compromised in any way.

6. It is accordingly, directed that a fresh auction of the collection rights of cattle mandi fee be held forthwith by the Board after complying fully the terms of the auction as are advertised in the public notice to ensure that the failure which occurred in the abortive re-auction does not take place with the consequence of prejudicing public interest. The forfeited security amount of Rs.1.0 million shall be refunded to the petitioner.

7. At the conclusion of this order dictated in Court the learned counsel for the respondent Board has objected that the petitioner has no locus standi to maintain this petition as he has no concluded contract in his favour. This plea would be relevant if a contract was being sought to be enforced by the petitioner. As a highest bidder in a public auction the petitioner has a proprietary interest in enforcing the respondent's legal duty to conduct the public auction fairly, transparently and without discrimination. It is this duty of the respondents that is enforced by the petition. It emanates from the law and the respondents own published rules and procedure for the auction of public property. Clearly the petitioner has locus standi to enforce a legal duty of the respondent that affects the petitioner's proprietary interest. Disposed of in the above-terms. M.B.A./M-272/L???????????????????????????????????????????????????????????????????????????????? Order accordingly.