2003 PLP 670 (MLD)

January, 2002 March, 2002 and April, 2002.????????????????????????????????????????????????????????????????????????????? Rs.65,000 ??????????????????????? Total??????????????????????????????????????????????????? Rs.34,72,143 Amount already paid by the petitioner.???????????????????????????????????????????????????????????????????????????????? = Rs.26,00,000 Amount yet to be paid by the petitioner.???????????????????????????????????????????????????????????????????????????????? = Rs.8,72,143" He further submits that petitioner is not entitled to any rebate and approached this Court with unclean hands. The judgment cited by the learned counsel of the petitioner is not applicable in the present case and is distinguished on law and facts. The learned counsel of the petitioner, in rebuttal submits that petitioner had to pay according to the bid amounting to Rs.1,16,228 to the respondents whereas the respondents had collected 85.59,277 per day for the interregnum period in which the work order was not issued in favour of the petitioner.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and .perused the record myself.

5. It is better and appropriate to reproduce the material facts in chronological order to resolve the controversy between the parties:‑‑ (i)???????? The advertisement was issued by the respondents in the daily newspaper with the following relevant conditions:‑‑ (ii)??????? The auction was held on 13‑11‑2001. (iii)?????? The petitioner's bid was highest amounting to Rs.2,65,00,000. (iv)?????? The Competent Authority accepted the bid on 16‑11‑2001 which was intimated to the petitioner's Manager Talib Hussain who had igned on the acceptance letter. (v)??????? The agreement also contained clause to deposit in advance Bank Guaranty. (vi)?????? The terms and conditions of the auction as well as the agreement contained the clause that in case of any dispute arises between the lessee and the lessor the same will be decided by the District, Nazim, Lahore who will be sole authority under the Arbitration Act. (vii)????? That petitioner submitted an application before the Administrator, General Bus Stand, Lahore on 14‑11‑2001 to allow him to collect the fee without depositing the Bank Guaranty. The petitioner submitted an application before respondent to waive of the condition of the Bank Guaranty on 19‑11‑2001. The petitioner submitted Bank Guaranty on 22‑11‑2001. (viii)????? The work order was also issued by the respondents in favour of the petitioner on 22‑11‑2001. In case the aforesaid facts are put in a juxtaposition then the respondent did not issue the work charge to the petitioner till 22‑11‑2001 on account of the inaction of the petitioner as the petitioner did not furnish the Bank Guaranty in terms and conditions of the agreement arrived at between the petitioner and the respondents as well as in terms and conditions of auction. The agreement also contain arbitration clause. The petitioner executed the contract of his own free will. The petitioner wants enforcement of a contract through this Constitutional petition which is not permissible in the eyes of law as per principle laid down by the Honourable Supreme Court in the case of Momin Motor Company v. R.T.A. (PLD 1962 SC 108). As mentioned above the contract also contains arbitration clause, therefore, writ petition is not maintainable in view of the law laid down by the Honourable Supreme Court in the following judgments: Project Director, Balochistan Mines Irrigation v. M/s. Murad Ali & Company (1999 SCMR 121) and Mumtaz Ahmad v. District Council, Sahiwal (1999 SCMR 117). The unreported judgment relied upon by the learned counsel of the petitioner did not support the cause of the petitioner. As the question of maintainability was not raised and decided. In view of what has been discussed above, the writ petition is not maintainable. It is also settled principle of law that public functionaries deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. It is admitted that bid was accepted by, the respondents on 16‑11‑2001, the respondents failed to bring on record any sufficient material to show when the bid was accepted by the respondents on 16‑11‑2001. In this view of the matter, the respondents are directed to adjust Rs.59,000 for one day to the petitioner in terms of clause 24 of the terms and conditions of the auction. The writ petition is disposed of with the above observations. H.B.T./A‑584/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.