P L D 2004 Supreme Court 773 (PLP)

FAQIR MUHAMMAD KHOKHAR J.

The petitioner seeks leave to appeal against judgment dated 23-5-2003, passed by the Lahore High Court, Rawalpindi Bench, in Civil Revisions No.216 of 2003.

2. On 4-3-2003, the respondents No.1 and 2 auctioned the excavation of sand of Block No.4, covering, an approximate area of 498.45 acres in village Tarbethi Sanjwal, District Attock for a period of two years. The petitioner offered a bid of Rs.2,00,000 as against the highest bid of Rs.2,20,000 of the respondent No.3. Thereafter, the Licensing Authority held the negotiations on 14-3-2000 for enhancement of the bid money. It was only the petitioner who appeared and offered the enhanced bid of Rs.5,00,

000. In the meantime, one Malik Iftikhar Ahmed of Messrs Junaid Iftikhar Enterprises made an offer of Rs.7,00,000 for the said auction alongwith C.D.R. of Rs.1,75,000 being 1/4th of the amount of offer. The Licensing Authority rejected the bid of the petitioner who filed an appeal thereagainst. On 25-4-2000, the petitioner further enhanced the bid up to Rs.8,00,

000. However, the Appellate Authority remanded the case of the petitioner which was dismissed by the Licensing Authority. A re-auction of the lease was held on 11-5-2002 in which the respondent No.3 again offered the highest bid of Rs.8,30,

000. The petitioner did not participate in the re-auction. Consequently, the Licensing Authority approved the highest bid of respondent No. 3, issued allotment letter dated 8-6-2002 in his favour and handed over the possession of the site. The petitioner again filed an appeal which was accepted by the Appellate Authority and the lease of Block No.4 was given to him for the lease money of Rs.8,30,000 for which the lease had been given to the respondent No.3. The allotment letter dated 12-3-2003 was issued by the Licensing Authority in favour of the petitioner. The respondent No.3 filed a revision petition thereagainst, On the other hand the petitioner also filed a revision petition for modification of the order of the Appellate Authority and for reduction of lease money from Rs.8,30,000 to Rs.5,00,

000. Simultaneously, the respondent No.3 also filed a civil suit against the cancellation of his lease and its award to the petitioner. The suit and the stay application of the respondent No.3 were contested by the petitioner who filed separate applications under Order VII, Rule 11, C.P.C. for rejection of the plaint and under section 10, C.P.C. for stay of the suit. The Civil Judge, by separate order dated 24-4-2003, rejected the applications of the respondent No.3 and of the petitioner. The petitioner filed an appeal against the order of rejection, of his application under Order VII, rule 11, C.P.C. He also filed a revision petitioner against the dismissal of his application under section 10, C.P.C. On the other hand, the respondent No.3 also filed an appeal against the dismissal of his application for grant of temporary injunction. The District Judge, Attock, by order dated 7-5-2003, restrained the petitioner from excavating the sand till the decision of the appeal/revisions of the parties by the Secretary to the Government of the Punjab, Mines and Minerals Department. The petitioner filed Civil Revision No.216 of 2003 thereagainst which was dismissed by the Lahore High Court, Rawalpindi Bench by the impugned judgment dated 23-5-2003. Hence this petition for leave to appeal.

3. The learned counsel for the petitioner argued that the District Judge had no power to pass any injunctive order when the civil suit itself was consigned to the record. In the presence of specific provisions of Order XXXIX, Rules 1 and 2, C.P.C. regulating the grant of temporary injunction, recourse could not be had by the District Judge to the inherent powers. The order passed by the District Judge was violative of the provisions of section 56 of the Specific Relief Act. The petitioner had already been given the work order and he had made a lot of investment which could not be cancelled after the same had been given legal effect. The respondent No.3 was called for negotiations but he did not appear. The petitioner had enhanced the bid up to Rs.5,00,

000. During negotiations, Malik Iftikhar Ahmed, who had not participated in the auction, was unjustifiably allowed to make the bid higher than that of the petitioner. Since the respondent No.3 had not participated in the negotiations held by the Licensing Authority, therefore, he was estopped to re-agitate the matter before the department or the civil Court in view of the law laid down by this Court in the case of Saeed Afzal v. Mumtaz Hussain and others 1994 SCMR 2085. The impugned judgment of the High Court was not sustainable at law.

4. The learned Assistant Advocate-General argued that the impugned order passed by the High Court was just and fair to which no exception could be taken. Even the Secretary, Mines and Minerals Department, Government of the Punjab had also passed an order dated 30-4-2004 whereby the lease of the petitioner was cancelled and that of the respondent No.3 was restored.

5. On the other hand, the learned counsel for the respondent No.3 argued that after the possession of the lease area was handed over by allotment order dated 8-6-2002 for a period of two years, the respondent No.3 had made huge investment and improvements on the site. It was next contended that the petitioner did not participate in the re-auction and the highest bid of the respondent No.3 was accepted. The Punjab Mines and Minerals Concession Rules, 1990 had been repealed and superseded by the Punjab Mining Concession Rules, 2002 with effect from 20-3-2002. The learned counsel submitted that after repeal of the rules of 1990, the department was left with no power to hold negotiations with the bidders. The whole exercise done by the department in favour of the petitioner was illegal as he was neither the highest bidder nor negotiations could be held with him. The record did not show that any notice was served upon the respondent No.3 for the purpose of negotiations. The learned counsel pointed out that in the meanwhile, the Government had also accepted the revision petition of the respondent No.3 by order dated 30-4-2004, whereby the lease of the petitioner was cancelled and the same was restored in favour of the respondent No.3. Consequently, the respondent No.3 was allowed to work in the area for the balance period of his lease after calculating the period for which he had remained in possession. The learned counsel argued that the impugned judgment of the High Court as well as by the District Judge was just and fair to which no exception could be taken.

6. We have heard the learned counsel, for the parties at Length and have also gone through the available record. We find that the initial bid offered by the respondent No.3 was the highest one. The respondent No.3 or any other bidder was not shown to have been served with any notice by the Licensing Authority for the purpose of negotiations. After the repeal of the rules of 1990 with effect from 20-3-2002 and the auction having not been materialized, the department was justified in holding the re-auction of the lease for excavating the sand of Block No.4. The petitioner on his own did not participate in the re-auction. There was no legal or moral justification to give lease to the petitioner for Rs.8,30,000 for which the respondent No.3 was already holding the lease. The Government of the Punjab, by order dated 30-4-2004, has also accepted the revision petition of the respondent No.3, whereby the lease of the petitioner has been cancelled. It appears that the manner in l which the lease was given to the petitioner lacked transparency and, fairness. We may also observe that the period of lease of two years in' favour of the respondent No.3 commencing from 8-6-2002 has already expired. The impugned order of the High Court does not suffer from any legal infirmity so as to. warrant interference by this Court. In our view, this is not a fit case for grant of leave to appeal.

7. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. The Mines and Minerals Department, Government of the Punjab is directed to re-auction the lease for excavating the sand in accordance with law, in a fair and transparent manner. M.B.A./I-94/S Petition dismissed.