P L D 1969 Lahore 823 (PLP)

SHAMIM HUSSAIN KADRI, J.

‑On the 26th of January 198, Secretary (Industries), Government of West Pakistan, submitted his proposals to the Governor of West Pakistan for the sale of Weaving and Finishing Centre, Shahdara which was established in 1916 and at present covers an area of 75 acres. The Centre includes dyeing and printing shed. weaving hall, office building, General Manager's house and some residential quarters. In his opinion, the Centre, in its present condition, had outlived its utility and was of little assistance to the private sector unless it was completely renovated and modernized for the improvement of which a provision of Rs. 50,00,000.00 was made in the third plan but on account of the paucity of funds improvements could not be made therein, he, therefore, suggested to disinvest from the concern by selling the factory. Before the file was. submitted to the Governor, the proposal was examined by the. Finance Secretary on the 7th of February 1968, who observed "this will improve the provincial receipts to some extent and is, therefore, a welcome move from the view point of the Finance Department. We are, in fact, in favour of disinvestment of all loosing concerns, we would, however, suggest that efforts should be made to get the maximum possible price with the following basic conditions for the tender, namely, (1) 25 cash down payment, (2) recovery to be made in five equal instalments to be paid every year, (3) 8 % interest to be paid on deferred payment." The Governor of West Pakistan on the 9th of February 1968, passed the following order "Approved. It should be auctioned as suggested by the finance Secretary."

2. The Department of Industries issued tender notice in twelve newspapers. Some newspapers published the notice on the 11th of May 1968, while it appeared in the `Pakistan Times' Lahore, and `Jang' and `Hurriyat' of Karachi on the 12th of May 1968. In response to this tender notice Wattan Woollen Mills, Rawalpindi, Ravi Mills Lahore, S. Muhammad Din & Sons Ltd., Lahore and Messrs CEBEE Industries, Lahore submitted their tenders and they quoted the price as under :‑ (1) Wattan Woollen. Mills, Rawalpindi‑Rs. 41,50,000, (2) Ravi Mills, Lahore‑Rs. 21,11,786.92, (3) S. Muhammad Din ‑& Sons Ltd., Lahore‑Rs. 40,50,000, (4) Messrs CEBEE Industries, Lahore‑Rs. 40,00,

000. None of the tenders was accepted and the Centre was sold by private negotiations to Messrs C. B Industries, Lahore.

3. S. Muhammad Din & Sons Ltd., Lahore and Messrs Wattan Woollen Mills, Rawalpindi, feeling aggrieved, have filed Writ Petitions Nos. 1365/68 and 1665/68 respectively which are being disposed of by this order. Petitioner S. Muhammad Din & Sons. Ltd, Lahore amended their petition and alleged that the Government is selling whole of the petitioner's factory and public street leading to their factory and in this transaction Government functionaries assumed jurisdiction which was not vested in them. It was mainly on this allegation their writ petition was admitted to a regular hearing. The sale was also alleged as a colourable transaction.

4. In the written‑statement submitted by the Government, it was conceded that in the tender notice the area of the factory was mentioned as 520 kanals. This was subject to corrections, errors and mistakes of measurement etc. After the measurement the real position has emerged that the Government owned 565 kanals, 2 marlas of land in village Shahdara, Mauza Wandala Dialshah, Tehsil Ferozewala, District Sheikhupura. This land is the property of the Government and is with the Industries Department. Regarding the plan it was submitted that although it shows an area of 231) kanals, 17 marlas and 72 square feet yet it does not show the other open land attached to the factory which comes to 335 kanals, 4 marlas and 200 square feet. It was further submitted that in the measurement proceedings it transpired that S. Muhammad Din & Sons Ltd.. Lahore were in unauthorised possession of 69 kanals and 17 marlas of land belonging to the Government an that neither any land under the petitioner's factory nor LESCO Enamel Works or any public street was being sold n the transaction. We summoned the Revenue Officials and the officials of the Department of Industries and Bard of Revenue. Without mentioning the details and comparison of the record, we are satisfied that the land and the factory sold to Messrs CEBEE Industries are the property of the Government and no public street or any portion of the property of S. Muhammad Din & Sons Ltd. has been alienated in the transaction. There is, however, to area of 69 kanals and 17 marlas which land is adjacent to the factory of Messrs S. Muhammad Din & Sons Ltd. This Nazul land was auctioned by the Board of Revenue and S. Muhammad Din & Sons Ltd. had deposited some money retarding this auction which has not been so far confirmed in their favour. The confusion, however, was created on account of mentioning certain wrong Khasra numbers in Appendix(1) giving the details of the property attached to the letter addressed by the Industries Department to the petitioners S. Muhammad Din Son, Ltd. The position which finally emerges is that the entire land Land being sold is the property of the Government.

5. It was next contended that it was a colourable transaction and the public functionaries did riot disclose the terms and conditions of the sale in the vender and Messrs CEBEE Industries have been favoured by selling this factory by private negotiations. The highest offer of S. Muhammad Din & Sons Ltd., Lahore was rejected and the Governor was not fully informed of these proceedings. The sale was conducted by private negotiations and others including S. Muhammad Din & Sons Ltd. were tenaciously excluded. It is also submitted that the petitioners were not clearly informed of the liabilities of the factory and mode of the payment of the price.

6. The highest quoted tender of the petitioner was rightly rejected, because the Government was not bound to accept the highest offer as was mentioned in the notice. Regarding the negotiations, S. Muhammad Din & Sons Ltd. had offered Rs. 42,50,000.00 as price of the factory, but in their correspondence with the Department they had imposed some conditions and the Department rejected their offer holding it as conditional offer. The offer of Messrs CEBEE Industries was accepted as the only valid offer. In Appendix (2) with its heading "General Conditions of Sale", the method of payment is mentioned in paragraph No. 4 which is reproduced as under :‑ "Payment.‑The buyer shall make payment for the goods purchased into the State Bank/Government Treasury or such place, and in such manner, as the Government may specify and by the date fixed for this purpose. The possession of factory will only be given after receipt of requisite payment from the purchaser." It is true that the tender notice does not disclose terms and conditions of payment suggested by the Finance Secretary to the Government and the petitioners can reasonably raise this grievance, but I am not in a position to determine as to whether or not the petitioners were apprised of such conditions as they also did take part in the negotiations. They enhanced their bid from Rs. 40,50,000.00 to Rs. 42,50,000.00 which was not accepted by the Government considering it as a conditional offer. If according to their allegations, they have been hoodwinked by the public functionaries in the performance of their duty, the proper course open for the petitioners is to complain against their conduct to the executive head of the Province who is obviously in better position to examine this aspect of the case. It is difficult for me to give any finding on this issue without recording evidence, and I would like to refrain from A doing so.

7. The question arises whether any of the petitioners had a vested right for the transfer of the factory merely because of the highest offer, which offer was never accepted. The offer of S. Muhammad Din & Sons Ltd. was considered to be conditional offer and, therefore, the Government was not bound to accept it. The offer must be unconditional according B to section 38 of the Contract Act. It is now well‑settled principle of law that contracts cannot be enforced through writs. This has been enunciated by their Lordships of the Supreme Court in Chandpur Mills Ltd. v. District Magistrate, Tipera (P L D 1958 S C (Pak.) 267) and Momin Motor Co. v. R. T. A., Dacca (2) however K. N. Gursawamy v. State of Mysore (P L D 1956 S C (Ind.) 53) was cited at the Bar in support of the proposition that writ could lie in such a case. This was a contract for the sale of liquor which was auctioned by the Deputy Commissioner in favour of the highest bidder. Another person was present, but he did not bid and instead went to tire Excise Commissioner and gave the higher bid. The Excise Commissioner cancelled the sale in favour of the highest bidder at the auction. It was held that the cancellation was proper as the highest bidder had no right to " the licence by the mere fact that the contract had been knocked down in his favour. He could not ask mandamus to confirm his right to the licence. However the order of the Excise Commissioner was set aside as it was not passed under the rules and before it was passed it did not receive proper publicity which was required under the law. This case is obviously distinguishable, being a case of licence which had to be issued under some rules. The case in hand is one of pure sale.

8. The next question which arises for consideration is whether S. Muhammad Din & Sons Ltd. are an aggrieved party. Firstly, it was contended that since they have purchased some land in the auction, which has been sold to the respondents, they are an aggrieved party. As the auction of land was not con firmed in their favour, on that score they cannot be considered as an aggrieved person. Secondly, it was submitted that since they are rival businessmen they are an aggrieved party interest ed to buy the concern. The King v. Groomand others ((1901) 2 K B 157) was cited in support of the latter argument. This was also a case of licence to sell intoxicating liquor. The King v. Richmond Confirming Authority ((1921) 1 K B 248) and two more English cases, namely, The Queen v. The Justices of Surrey (L R 5 Q B 466) and R. v. Manchester Legal Aid Committee ((1952) 1 All E R 480) were also referred. In the former case it was held that "though a certiorari is not a writ of course, yet as the applicant had by reason of his local situation, a peculiar grievance of his own, and was not merely applying as one of the public, he was entitled to the writ ex debito justitiae. In the latter case local committee, a body of persons, having legal authority to determine question affecting the rights of subjects, had a duty to act judicially; the applicants as persons who had incurred the risks inherent in having to defend and action brought by a person who had been granted legal aid, were considered "persons aggrieved", and therefore, an order for certiorari was granted.

9. Question of "aggrieved party" was considered in Tariq Transport Company, Lahore v. Sargodh‑Bhera Bus Service and others (P L D 1958 S C (Pak.) 437) a case of grant of route permits. Muhammad Amin v. Chief Settlement and Rehabilitatin Commissioner, Karachi and others (P L D 1966 Kar. 91) and Shoukat Ali Khan v. Settlement Commissioner, Karachi and others (P L D 1967 Kar. 251) two settlement cases were also cited in support‑ of this proposition. The obvious distinction which can be drawn in the above‑mentioned cases is that these were cases where the persons had a vested right and that right was infringed by an illegal action of public functionaries. In the present case, there is no vested right in the petitioners on which they C can ask for the sale of the factory in their favour. The petitioners have no vested right to purchase and there is no corresponding duty cast upon the Government to sell this factory to the petitioners. Thus, they have no case for mandamus. The petitioners were merely tenderers and the Government was not obliged to accept their tenders. In Secretary of State v. Madho Ram (A I R 1929 Lab. 114) it was held that‑ "The tender was merely an offer to supply goods at certain price for the fixed period. So long as the offer remained open the tenderer was bound to supply the goods at the prices when called upon to do so up to at least the estimated quantity and he could at any time withdraw his offer upon proper notice to the military authorities and upon such withdrawal his liability to supply the goods not already ordered would have terminated. The military authorities on the other hand were not bound to order all the goods from tenderer but if they did give an order they were bound to pay the price set out in the Schedule. They were free to accept the offer or not as they would think fit and they could buy the goods from any other source." In the Queen v. Demers (1900 A C 103) a person contracted with the Govern ment to execute for a terns of years the printing and binding of certain public documents at stipulated prices, but the Government did not expressly contract to give to him all or any of the said work, the stipulation to that effect could not be implied, and it was held that there was no breach of contract by reason of orders for work being withheld. The following paragraph on page 17 of the Judicial Review of Administrative Actions by Smith would be of some interest to be reproduced :‑‑ "The classes of administrative acts and decisions that are unreviewable because of the nature of their subject- matter are perhaps more extensive than in most foreign systems. For example, many of the claims lodged before the Administrative Courts in continental countries are brought by civil servants and military officers who have been dismissed, reduced in rank or passed over for promotion, by candidates at public examinations who have failed or been disqualified, and by firms whose tenders for public contracts have been rejected in favour of their rivals, but in English Law persons aggrieved in these sets of circumstances will seldom if ever be able to find a legal peg on which to hang a justiciable claim." I am, therefore, of the opinion that the petitioners have not been able to make out any case for interference by this Court.

10. It was next contended that the officials acted arbitrarily and did not perform their duties fairly, justly and equitably in this transaction of sale. The main grievance of the petitioners being that they were not associated in the negotiations they complain that they have been condemned unheard. The submission is without any substance. Principle of natural justice of hearing could not be attracted in the instant case. The contention of malice is pressed on the basis of the dictum of their Lordships of the Supreme Court in Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671). No mala fide has specifically been alleged except that the action of the officials selling the property in favour of CEBEE Industries is claimed to be arbitrary. The petitioners, S. Muhammad Din & Sons Ltd. did take part in the negotiations and they did make an offer which was not accepted. I cannot term this refusal of sale in their favour as an arbitrary act, because the seller is comp; tent to refuse a conditional offer. Such an act cannot be said to be arbitrary.

11. It was further submitted that the Exchequer has enormously suffered in the tr4nsaction. The petitioners would have paid much higher price for the factory if they had known the terms and conditions of the payment of the price and the liabilities of the factory, and they have approached this Court in the public interest in challenging this sale. This submission is not well‑founded. The petitioners are rival businessmen and they wanted to purchase the factory. This petition has been brought for collateral purpose and not with the specific purpose of public interest. I must, however, clearly point out that if a petition had been moved on behalf of a tax‑payer in that case perhaps its fate might have been different. It is not the function of this Court to decide whether a particular public enterprise should go to private sector or not, or should it be sold, on what price they should sell and to whom. It is for the administrators to determine such feasibilities and to deal with public property in the best public interest. Interference in this domain of the executive would not be desirable, but certainly this Court will be anxious to see that the public functionaries perform their duties in the best interest of the country. I have already observed that if the petitioners have any grievance that they have been hoodwinked by certain public functionaries in this transaction, they can approach the Government in this behalf.

12. With the above observations, I dismiss both the writ petitions (Nos. 1365 and 1665 of 1968), but make no order as to costs. A. R. SHEIKH, J.

‑I concur. R.M.A. Writ petitions dismissed.