2013 PLP 935 (CLC)

C.M. No.762 of 2012 and C.M. No.2705 of 2011 MUHAMMAD KHALID MEHMOOD KHAN, J.

Kamran Zafar, the petitioner of C.M.No.762 of 2012 has filed application under section 12(2), C.P.C.. for setting aside order dated 30-5-2011 passed in Writ Petition No.4927 of 2010, claiming that the impugned order dated 30-5-2011 has been obtained through fraud and misrepresentation. Likewise Haji Muzaffar Hussain, the petitioner of C.M.No.2705 of 2011 has filed application under section 12(2), C.P.C. for setting aside the impugned order dated 30-5-2011 passed in Writ Petition No.4927 of 2010, alleging that impugned order has been obtained by concealing the true facts.

2. The brief facts of two petitions are that Tehsil Municipal Administration, Gujrat (respondent No.1) in the year 1991 auctioned Shop No.3 situated at Shahdhoula Road, Gujrat. The petitioners of both C.M.No.762 of 2012 and C.M.No.2705 of 2011 participated in the bid, the petitioner Kamran Zafar was declared the successful bidder with the price of Rs.850,000/-, the petitioner deposited Rs.4,00,000/- in the treasury branch of respondent No.1 as per terms of the auction. The shop was in possession of respondent No.3 being the tenant; the respondent No.3 challenged the auction through Writ Petition No.15743 of 1999, which was dismissed on 17-3-2003. Due to eruption of litigation, the possession of the shop was not handed over to the petitioner and it was sealed. The respondent No.4, the applicant of C.M.No.2705 of 2011 is the father of the successful bidder, his bid was on the lower than the petitioner Kamran Zafar as per the bid sheet, the respondent No.4 then on 21-7-2006 filed civil suit before the civil Court which was dismissed on 14-12-2006. The petitioner has also filed civil suit against respondent No.1 on 22-12-2008 which is pending disposal. The respondent No.3 again filed Writ Petition No.4927 of 2010 arraying respondent No.4 the only party and obtained consent order on 30-5-2011 fraudulently from this Court in the absence of the petitioners. The applicants of both the applications under section 12(2), C.P.C. has challenged the order dated 30-5-2011.

3. Learned counsel for the petitioner of C.M.No.762 of 2012 submits that as per hid sheet the petitioner is the highest bidder and his name is available at Serial No.33 showing his offer of Rs.8,50,000/-; the Auction Committee has recommended the confirmation of auction in favour of petitioner and he has deposited Rs.4,00,000/- as per terms of the bid. Learned counsel submits that the bid of respondent No.4 was Rs.8,00,000/- and his bid was rejected but subsequently the respondent No.1 colluded with respondent No.4 and got issued a fraudulent letter confirming that respondent No.4 is the highest bidder against bid of Rs.875,000/-. Learned counsel submits that dispute is pending before the learned Civil Court and the learned Civil Court will finally decide the controversy between the petitioner and respondent No.1. He submits that order dated 30-5-2011 has been procured by practising fraud and representative of TMA (respondent No.1) has collusively made statement before this court admitting the respondent No.4 the highest bidder; the petitioner was not made party to the petition intentionally while filing the writ petition in spite of the fact that pending litigation between the parties is within the knowledge of both the parties to the constitutional petition, thus, the procurement of the order dated 30-5-2011 is manifestly a fraudulent attempt on part of respondents Nos.1 and 3 to deny the petitioner's right being the highest bidder.

4. Learned counsel for respondent No.4 has contended that he has no objection qua setting aside the impugned order and the remanding the case to respondent No.1 for deciding the same afresh. Learned counsel for Kamran Zafar vehemently opposes the said request and states that the fraud is sailing on record and the writ petition is liable to be dismissed with heavy costs and the parties to the petition are liable to be prosecuted in accordance with law. I examined the record and it transpired that the respondent No.3 in spite of dismissal of the earlier writ petition has filed the instant Writ Petition No.4927 of 2010 without impleading the petitioner as party to the petition and disclosing his earlier writ petition despite the fact that on his earlier writ petition this Court while dismissing the writ petition has directed as under:

"In Writ Petition No.15743 of 1999, petitioner sought annulment of auction proceedings on the ground that the same was conducted in an illegal manner and for the benefit of certain individuals. He has also prayed that the shop which was in his possession may be directed to be transferred to him against the highest bid of Rs.8,60,000/-. The prayer made by the petitioner, obviously, is self-contradictory. On one hand, he claims that the auction was concluded in an illegal manner and on the other hand, he claims the shop to be given to him on the basis of highest bid given in the same auction. As observed above, Secretary Local Government and Rural Development in his report has submitted that the auction proceedings were transparent and no illegality was noticed in those proceedings. The prayer made by the petitioner for annulment of auction therefore cannot be considered. Similarly, if the petitioner had not taken part in the auction, he cannot claim allotment of shop in his favour. The prayer made by the petitioner, therefore, is untenable and his petition is dismissed".

5. The respondent No.3 has intentionally not disclosed this fact while filing earlier Writ Petition No.4927 of 2010. Javed Iqbal, Legal Assistant, TMA, Gujrat when asked why he made the wrong statement in Court and facilitated respondent No.3 to obtain a consent order he submits that due to some typographical mistake his consent was recorded whereas in the report and para-wise comments of TMA, he has specifically mentioned as under:

6. The explanation of representative seems to be incorrect. The court passed the order on the statement of representative of TMA. No doubt the TMA submitted the report and para-wise comments explaining the routine facts but the representative has not pointed out the report and comments available on record. If for the sake of arguments it is admitted that the representative of TMA has not made the statement in court admitting the respondent No.1's claim why on receipt of certified copy of order dated 30-5-2011 the TMA has not filed an application in court for setting aside the impugned order.

7. The above said facts show that respondents Nos.1 and 3 colluded with each other, the shop is lying closed and the TMA is suffering loss of rent. The TMO has fraudulently issued letter dated 9-6-2006 to respondent No.4 declaring him the highest bidder whereas as per bid sheet the respondent No.4's bid was only for Rs.8,00,000/- and the bid of the petitioner was for Rs.8,50,000/-. The Auction Committee recommended the confirmation of auction in favour of the petitioner in the following words:

8. It is an admitted fact on record that till today the recommendations of Auction Committee have not been confirmed or rejected, the TMA has not taken any action for the loss of exchequer, due to litigation between the parties, the matter for confirmation of the auction is still pending and the shop is lying sealed, the Government Exchequer is suffering loss from the last thirteen years. The collusion of respondents Nos.1 to 4 is proven fact on record and as such all the respondents are responsible for making good the loss of Government Exchequer. As it is established on record that order dated 30-5-2011 has been obtained by concealing the facts from the court, C.M.No.762 of 2012 is allowed, the impugned order dated 30-5-2011 is set aside and the writ petition is dismissed with cost of Rs.5,00,000/-. The cost will be paid for minimizing the loss suffered to the government exchequer. The C.M.No.2705 of 2012 is also dismissed being mala fide with the costs of Rs.200,000/-, the amount will be payable to Government treasury.

9. Office will send the copy of this order to the Secretary, Local Government, Punjab who will initiate proceedings against TMA, Gujrat and all other concerned officials who were instrumental in causing loss to the Government Exchequer. Office will also send the copy of this order to the District Judge, Gujrat who will pass a direction for early disposal of the civil suit in accordance with law, the incumbent Judge will submit his report to the Deputy Registrar (Judicial) within two months about the disposal of suit referred to above. MWA/T-25/L Order accordingly.