1998 PLP 1055 (SCMR)

Date of hearing: 12th March, 1998. This is a miscellaneous application filed in Civil Appeal No. 131-K of 1987, which was disposed of by this Court on 16-11-1992.

2. The brief facts leading to the filing of the above miscellaneous application are that the present petitioners owned a steel mill which was operating under the name and style of "Iron & Steel Ltd." The same was nationalized under President's Orders I and II of 1972 and was re-named as 'Quality Steel Mills Ltd'. It seems that after the decision of the Government to denationalize certain nationalized units, the petitioners filed Constitution Petition No.365 of 1986 in the High Court of Sindh praying therein that the above Mills should be re-transferred to them under President's Order No.XII of 1978. However, the above Constitution Petition was dismissed by a Division Bench of the High Court of Sindh by judgment dated 25-3-1987 in which it was held that in view of the use of the word 'may' in the relevant Article, the petitioners had no vested right to claim the retransfer. Thereupon, petition for leave to appeal against the above judgment was filed in this Court, which was converted into appeal (C. A. No. 131-K of 1987) and was disposed of by judgment date 16-11-1992. It may be pertinent to mention that after the above judgment of the High Court, Article 4 of President's Order NO.XlI of 1978 was amended by Act XXII of 1991 in which in place of the word 'may', the word 'shall' was substituted. The above appeal was disposed of by this Court in .the following terms:-- "Undoubtedly there are some elements in one or the other option which might also go alongwith the new statutory dispensation but considerable part of the suggestions made in the application amount to vital departure from the legislative measures. Obviously, the appellant faced with the new legal changes could not do better than what has been stated in the application. This could be at the least an effort to keep the appeal alive and afloat. We regretted our inability to accept and adopt the position taken by the learned counsel. Accordingly, another offer made to the appellant was accepted by the learned counsel namely that in order to safeguard their interests, the appellant may place on the record of this appeal a sealed envelop containing their highest offer which could be transmitted to the concerned authorities by this Court at relevant time if and when a need in that behalf arises. With further safeguard that in case the appellant at proper time wanted to increase offer so as to suit their circumstances, they would not be bound by what they would offer in the said sealed cover as no prohibition in law in that behalf was brought to our notice. We announced it in Court and the same is ordered accordingly. Thus, this appeal stands disposed of."

3. After the disposal of the above appeal, it seems that a public advertisement appeared, inter alia, in the English Daily Newspaper 'Dawn' of ,83,.,93 for auction inter alia of the Quality Steel Mill. The petitioners had ,,posited their bid in sealed cover with this Court before the auction was held pursuant to the above advertisement in which their bid amount was Rs.12.60 per share. However, when M/s. Marketing Enterprises Ltd. (purchaser) started giving bid, the petitioners also continued to give matching bid up to Rs.50 per share, and the highest bid of Rs.51 given by M/s. Marketing Enterprises Ltd. was accepted. It appears that the Privatization Commission addressed a letter dated 24-1-1993 to the Assistant Registrar of this Court enclosing therewith the bid sheet and pointed out that the previous owner was allowed to participate in the bid, who gave bid up to Rs.50 per share and refused to improve it further in order to match with the highest bid of Rs.51 per share. The permission of this Court was sought to proceed further in the matter. Thereupon, this Court by order dated 10-3-1993 ordered as follows:-- "The Privatization Commission has received the highest bid of Rs.51 per share of Rs.10 each. The appellants who had initially offered the conditional bid of Rs.12.10 per share were in compliance with the direction of this Court embodied in the order dated 16-11-1992, allowed by the Commission to improve their bid, which they did and raised it to Rs.50 per share but declined to improve it further. As a third party's bid of Rs.51 per share is in the field and the appellants are not prepared to enhance their bid, as disclosed by the Privatization Commission, the latter can be allowed to proceed in the matter on the basis of the highest bid in accordance with law. It may be pointed out that the appeal has already been disposed. of. "

4. After the above order of this Court, M/s. Marketing Enterprises Ltd. were handed over the possession of the Mill. An agreement of sale was executed on 21-3-1993 between the Privatization Commission and the purchaser M/s. Marketing Enterprises Ltd. wherein it has been stated that the bid was subsequently reduced to Rs.30.45 per share as a result of adjustment beyond 5 in the network of the company as per account as of 28-2-1993.

5. Thereafter, the petitioners filed the present miscellaneous application before this Court in which it has been alleged that the Privatization Commission has illegally reduced the price to Rs.30.45 per share and that the petitioners were entitled to have the option to purchase the Mill at the above rate if the price was to be reduced from Rs.51 per share. The Privatization Commission as well as the purchaser in response to the notice of the above application have put in appearance and have also filed reply averring therein that the above reduction of the price per share was in accordance with the agreement and the law and that the petitioners have no legal right to re-open the issue.

6. The question for consideration before us is as to whether we should enter into the above controversy in the present miscellaneous application in a disposed of matter. The explanation given by Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court, appearing for the petitioners is that since the sale had taken pace pursuant to the above order of this Court dated 10-3-1993, it would not have been possible for the petitioners to have approached any other Court. In our view, since the petitioners were not heard when the above order was passed and the present controversy involves, inter alia, investigation of certain facts, we are not inclined to take upon ourselves to go into it. It will suffice to observe that it will be open to the petitioners to approach an appropriate forum under law if it is legally permissible, and to-'agitate the above controversy therein. It will also be open to the respondents to agitate whatever factual and legal pleas are available to them. The application is dismissed.

7. After we have dictated the above order, Mr. Aitezaz Ahsan submitted that the petitioners should not be prevented from filing a Constitution Petition as according to him the matter can be disposed of without even going into the l factual controversies. In our view, it is for the forum concerned to decide this l aspect. M.B.A./A-60/S Order accordingly