1992 PLP 1259 (CLC)

(24) The above terms and conditions shall constitute a firm offer and acceptance on the part of KDA. and the allottee for the occupancy rights in the plot allotted to him by the KDA. and shall create a binding agreement between the KDA. and the allottee. The allottee shall ‑ pay to the KDA. any tax, charges levy to the Federal Government, Provincial Government, including Income Tax (3% advance Tax on the total cost of the plot under section (50‑A) of the Income Tax Ordinance, 1979), Excise & Taxation, K.M.C..and all other local/Govt. agencies from time to time. It was pointed out to the learned counsel for the appellant that clause 6 was also relevant which reads as follows:‑ "

6. The successful bidder whose offer is approved by the Auction Committee shall be required to pay on demand the 2nd instalment of 25% of Occupancy Value (to be determined after demarcation and measurement) whereupon the Directorate/Authority shall issue the allotment order of the plot to him. The balance 50% occupancy value whether demanded or not will be payable within three months. Thereafter, the possession order will be issued. The allotment shall be liable to cancellation and the plot resumed to KDA. in case of failure to take over possession within (30) thirty days of the service of possession order, to pay any instalment of occupancy value or other dues on due dates of the total ON. of the plot shall be forfeited on such cancellation, for which no claim for refund shall be entertained. In case an extension in the period of payment is granted by the KDA. at their sole discretion on application of the allottee, interest at 12 1/2% per annum on the dues payable by him for each month or part thereof inclusive of the extended period shall be charged. If he fails to pay after the expiry of the extended period allotment shall be cancelled without any further notice involving forfeiture of 25% of the total occupancy value of the plot and the plot shall be resumed to the KDA."

4. Admittedly, the offer made by the appellant had neither been approved by the Auction Committee nor the Governing Body of KDA and no demand had been made for the payment of any further amount towards the occupancy value. According to clause 6, after the offer ‑is approved by the Auction Committee, the successful bidder is required to pay, on demand, the second instalment of 25% whereafter the KDA is required to issue an allotment order. Prima facie, therefore, it appears that a contract binding KDA would have come into existence after approval by the Auction Committee of KDA of IA the highest offer made at the auction by the appellant.

5. The learned counsel for the appellant had referred to sections 23, 28, 73 and 74 of the Contract Act for the proposition that clauses 4 and 6 of the agreement are invalid and cannot be relied upon by KDA to frustrate a binding contract which had come into existence on the acceptance of the highest bid and signing of the agreement. The learned counsel could not persuade us that prima facie clause 4 or clause 6 was invalid in view of section 23 of the Contract Act. No argument was raised that the aforesaid clauses would defeat the provision of any law or the same were fraudulent. The submission that prima facie aforesaid clauses are immoral or opposed to public policy has also not impressed us. Reliance on section 28 is misconceived, as apparently neither clause 4 nor 6 is in restraint of legal proceedings. Reliance on sections 73 and' 74 by the learned counsel for the appellant is also apparently misconceived.

6. Mr. S. Sami Ahmad, learned counsel for the appellant, had also placed reliance on the following reported judgments:‑ (a) Syed Israr Masood v. State of Madhya Pradesh (1983 PSC 753)(Judgment of the Supreme Court of India), (b) M.G. Brothers v. Parasad Textiles (1984 PSC 301) (also by Supreme Court of India) (c) M.A. Chaudhry v. Mitsui (PLD 1970 SC 373); and (d) Jalil Asghar v. Atlas Industries (1984 SCMR 1). None of the aforesaid judgments supports the contention .of the learned counsel for the appellant that the plaintiff had made out a prima facie case in his suit for grant of temporary incjunction. The case of Syed Israr Masood proceeded on the assumption that there was a binding contract between the parties. In the M.G. Brothers' case the Supreme Court of India upheld the decision of a Single Judge of the High Court of Andhra Pradesh, Hyderabad, that a condition in the Way Bill that no suit would lie against the carrier unless a claim was made within 30 days from the date of booking or from the date of arrival of the consignment at the destination, if given effect would defeat the provisions of section 10 of the Carriers Act, 1865, and as such would be void. In PLD 1970 SC 373, a clause in the bill of lading which provided that any dispute arising thereunder was to be governed by certain foreign law and decided by a particular foreign Court, came up before our Supreme Court for interpretation. In 1984 SCMR page 1, Supreme Court of Pakistan considered in detail, with reference to decided cases from the English jurisdiction, section 23 of the Contract Act and on the facts of the case came to the conclusion that the contract between the parties was not hit by section 23 of the Contract Act. As observed, none of the aforesaid judgments is relevant to the point in issue in this Appeal.

7. The learned Single Judge has also made reference to rule 10 (1) of the K.DA. (Disposal of Land) Rules, 1971, which reads as follows: "Save as provided by sub‑rule (2). all commercial plots in all Schemes of the Authority under execution, including the Clifton schemes, will be disposed of by unrestricted public auction after wide publicity in the newspapers. The acceptance of a bid at the auction will be subject to the approval of the Governing Body of the Authority." Admittedly acceptance of appellant's bid has not been approved by the Governing Body of K.DA.

8. For the aforesaid reasons, finding no merit, this High Court Appeal was dismissed in limine by our short order dated 6‑8‑1991. AA./A‑1109/K Appeal dismissed.