2000 PLP 1923 (CLC)

Azam Nazir Tarar for Respondent., Dateof hearing: 9th May, 2000. JUDGMENT . Through an .advertisement dated 5‑6‑1999 in daily Nawa‑i‑Waqt respondent Zila Council advertised for the auction of the Cattle/Fair Market,. Thatta Ghara, District Hafizabad, to be held on 17.6‑1999 for the period 1‑7‑1999 to 30‑6‑2000. The petitioner participated in the auction and gave the highest bid of Rs.1,18,01,000 (Rupees one crore eighteen lac and one thousand). There was a writ petition ‑filed by Muhammad Iqbal (Writ Petition' No. 10738 of 1999) in which the learned Additional Advocate General on 18‑6‑1999 gave an assurance that "if auction is conducted, it will not be confirmed till the next date of hearing". The said petition remained pending for some time, which was finally withdrawn by the petitioner, therein. It appears hat the petitioner thereafter had a second thought and was not willing to proceed further in the matter and made an application to the Chairman, Zila Council, dated 19‑6‑1999, that the auction be not confirmed. He has filed now this petition with the prayer and direction to the Zila Council that he is entitled to the refund of his security‑deposit. .

2. The respondent has furnished report and parawise comments to the writ petition and has come out with the stance that the highest bid of the petitioner had been confirmed on 17‑6‑1999, a day before the interim order dated 18‑6‑1999 passed in Writ Petition No.10738 of 1999‑, therefore, the petitioner is not entitled to the refund of the security‑deposit as the said amount stand forfeited in view of the conditions of auction. An amended petition, then was filed by the petitioner challenging the order of forfeiture passed by the respondent. '

3. It is contended by the learned counsel for the petitioner that the bid of the petitioner, though highest, was subject to confirmation which never took place in accordance with the rules and that the order of confirmation brought on record (R‑2) does not show as to who had signed the same; and if had been done by the Chairman, Zila Council, it was not legal as he had no such competency under the law to approve or confirm the auction. He has challenged the authenticity of the confirmation order also. 4.On the other hand, the learned counsel for the respondent refers to the conditions of auction which were duly accepted and signed by the petitioner that it was the Chairman of the Council who was to confirm the bid and that he had the right to order forfeiture of the security‑deposit as per clauses (9) and (17) of the same. Reference has also been made to clause (21) that the parties had agreed for the arbitration by Commissioner, Gujranwala Division, in case of any dispute in the matter. It is thus contended that the petition before this Court is not the remedy for the petitioner in the facts and circumstances of the case.

5. The undisputed position is that for participation in, the auction the' petitioner agreed to the terms and conditions of auction as a token of which he signed the same (R.1). He deposited the security amount of Rs.15 lac in pursuance of the same. These conditions envisaged a likelihood of some A dispute between the parties and provided for a remedy in the form of arbitration before the, Commissioner, Gujranwala Division. This is clause 21 of these conditions, which was accepted by the petitioner and signed by him, as mentioned above. In Mumtaz Ahmad v. Zila Council, Sahiwal through Administrator and others 1999 SCMR 117 which. was a case concerning the contractor and Zila Council, Sahiwal, there was an arbitration clause like the one in present case. The writ petition as well as the Intra‑Court Appeal filed by the Contractor was dismissed in view of the arbitration clause, which judgment of the High Court were upheld by their Lordships of the Supreme Court, and it was observed that:‑‑‑ ...if they had any grievance, they could have invoked the Arbitration clause and referred the matter to the Arbitrator or file appeal under the relevant rules, but in view of the availability of these remedies, they could not have invoked the writ jurisdiction." 6.In Nadeem Akhtar Niazi v. Zila Council, Khanewal 1999 YLR 685 the effect and, import of acceptance .of conditions of auction was considered by me and it was observed that "the Contractor having elected to accept the terms and conditions of the auction and signed and executed the agreement is bound by the same. He cannot repudiate or resile therefrom".. 1t was observed that a writ‑petitioner cannot seek avoidance of contractual obligations by invoking writ jurisdiction of this Court. In Muhammad Naeem v. District Council, Pakpattan 2000 CLC 73 also a similar view wastaken and it was observed that the petition was not maintainable in view of arbitration clause.

7. In the present case as well I am persuaded to take the same view that writ petition in such‑like matter is a misconceived remedy as ‑ the forum chosen by the parties by their own will‑and volition should be resorted to.

8. For the reason that the matter involves factual determination of the respective pleas of the parties, including the assertion of the petitioner as to the authenticity of order dated 17‑6‑1999, and the vehemence of the respondent's counsel as to the conduct of the petitioner, writ jurisdiction in any case is not the appropriate remedy.

9. In view of the above that this petition is not competent before this Court,. I have refrained from making any comment as to the merits of the case so that the forum approached and seized of the matter decides the same on merits uninfluenced by any extraneous factor or observation. This petition is accordingly dismissed. No order as to costs. H.B.T./M/168/L ' . ., . . , Petition dismissed.