2002 PLP 550 (MLD)

Brief facts out of which present writ petition arises are that the petitioner participated in the auction proceedings held by the respondents on 19‑1‑2001 for privatization of T.D.C.P. Tourist Resort, Kharian measuring 62 Kanals and 15 Marlas. The petitioner's bid was highest amounting to Rs.15,200 per Marla. The petitioner had deposited 25 % advance price amounting to Rs.48,00,000 in terms of the auction notice. The petitioner's bid was rejected by the respondents vide order, dated 28‑8‑2001. The petitioner being aggrieved filed representation before Chairman Privatization Board LCC& I Building, Lahore on 19‑8‑2001, who did not pass any order on his representation. The petitioner being aggrieved filed this writ petition.

2. Learned counsel of the petitioner submits that bid of the petitioner was highest and the respondents did not accept the same. The respondents initiated enquiry about market value of the property on 2‑6‑2001 and found out that the auction price was more than the average market rate as is evident from Annexure‑A attached with the writ petition. He further urged that last bid on 19‑4‑1999 was Rs.12,500 per Marla which was not approved by the respondents. Whereas bid of the petitioner is Rs.15,200 per Marla He further submits that the impugned order of rejection of the bid of the petitioner is not sustainable in the eves of law as the same was rejected in violation of principle of‑natural justice. He further submits that the impugned order of rejection does not contain any reasons. He further urged that the petitioner had a legitimate right for the acceptance of bid because bid of the petitioner was higher than reserve price. He further urged that the huge amount had already been deposited by the petitioner in the account of respondents and the respondents did not accept or reject the bid of the petitioner for about months. Apart from this amount, the petitioner had reserved a sum of Rs.1,48,00,000 because under the terms and conditions of auction. balance 75 %, auction price was also payable to the respondents by the petitioner within 60 days from the date of acceptance of bid. He further submits that people of the locality have uprooted the door etc. of the nrooerty on account of in auction of the respondents. He further submits that the petitioner had written various letters to the respondents but the respondents did not give reply well within time. To petitioner, therefore, action of the respondent is without lawful authority The respondents had exercised discretion arbitrary without applying their mind mala fide Therefore, the impugned order is not sustainable in the eyes of law. In support of his contention, he relied upon "2000 CLC 1412" (Petrosin Products (Pvt.) Ltd. v. Federation of Pakistan through Secretary).

3. I have given my anxious consideration to the contention of the learned counsel for the petitioner and perused the record myself. 4 It is better and appropriate to reproduce the operative part of the tender notice and relevant facts in chronological order to resolve the controversy between the parties:‑ Relevant Condition of Tendei, (ii) The auction was held by the respondents in terms of aforesaid tender's condition on 19‑1‑2001. The bid of the petitioner was highest amounting to Rs.15,200 per Marla. The bid of the petitioner was not accepted by the respondents. The bid of the petitioner was rejected on 28‑8‑2001 in the following terms:‑‑ "The auction of the above property was considered in the Board meeting held on 13‑7‑2001. After thorough deliberation/discussion, the Board in exercise of its power did not approve your bid and the same was, therefore rejected. The Board is fully competent to reject any bid without assigning any reason and party mentioned in the advertisement for auction. "` In case, the aforesaid facts and condition of the tender, are put in juxtaposition then it is crystal clear that highest bid is subject to the approval of the Board. The highest bid was not accepted automatically unless and until the same is approved by the Board. In the present case, the Board had not approved the bid of the petitioner. The question arise whether ,petitioner has accrued vested right by mere participation to auction proceedings held by the respondents being highest bidder or not? The aforesaid proposition of law was considered by the Hon'ble Supreme Court in Munshi Muhammad's case (1971 SCMR 533) arid laid down the following principle:‑‑ ' "The view formed by the High Court is unexceptionable. Since the auctions in favour of the petitioners were not finally approved, they did not acquire any right in the properties, and had, therefore, no locus standi to ask for their transfer. According to the terms and conditions of the auction itself, the highest bids offered in the auctions were subject to the approval of the Additional Settlement Commissioner concerned, who may or may not accept the bids, without assigning any reasons or his action." The aforesaid proposition of law as also considered by the Hon'ble Supreme Court in Rehmat Ali's case. The relevant observation is as follows: "Admittedly, the auction in favour of the petitioners was not confirmed. According to .Condition No.10 of the conditions of auction, it was within the discretion of the respondents to confirm or not to confirm the auction. The matter was considered at a higher level and the authorities concerned came to the conclusion that the auction in favour of the petitioners should not be confirmed. In our opinion, the petitioner by giving highest bid have not acquired any legal title in the property in dispute and the mere fact that the auction in their favour has not been confirmed, does not give them any right to file a, writ petition. " Reference can also be made in Meraj Din's case (1970 SCMR 542). The relevant observation is as under:‑‑ "It is conceded by the learned counsel at the Bar that the auction in favour of the petitioner was never confirmed. He was no doubt the highest bidder at the second auction and had also deposited a substantial amount of the auction money, but until the confirmation of the auction was made in his favour by the relevant authority, he did not acquire any right in the property whatsoever Paragraph 9 of the 'terms and conditions of the auction of `building Sites' under which the auction in question had been held, provided that the highest bid given by a person could be rejected without assigning any reason for it." It is pertinent to mention here that the aforesaid proposition of law was also considered by the Hon'ble Supreme Court in Babu Pervaiz Qureshi's case in 1974 SCMR 337 and observed as under:‑‑ "A mere bid at an auction if the bid is subject to confirmation, does not create any contractual right until the bid is confirmed. It is in the discretion of the auctioneer to confirm or not to confirm it." On .the basis of aforesaid dictum laid down by the Hon'ble Supreme Court, I am also of opinion that by giving highest bid which was not accepted, the petitioner accrued no legal right to the grant of contract in view of aforesaid conditions in the tender notice. The petitioner does not accrue any vested right. In arriving to this conclusion, I am fortified by the following judgments:‑‑ "(Rehmat Ali and . 2 others v. The Revenue Board, West Pakistan Lahore) " 1973 SCMR 342"(Muhammad Din & Sons, Shahdara, Lahore Mills v. Province of West Pakistan "PLI) 1960 Lahore 823?). The ratio of the aforesaid judgments is that it is well‑settled law that a bid, made at an auction is in the nature of an offer which does not mature into contract at all till its acceptance. The auctioneer acts as an agent of the seller and if he has authority to accept the bid, concluded contract comes into being‑the moment bid is accepted either by the word of mouth or any other customary method. If however, the auctioneer is not vested with the power to accept the bid which is With another person or authority, the contract only comes into being when the bid is accepted by that authorized person. In case of "Dr. Azeem Shah v. Municipal Committee Multan" (PLD 1968 Lahore 1419), a D.B. of this Court was pleased to hold that as the acceptance of the‑offer made by contractor, was not communicated to him, no concluded contract came into being. In case of "Muthu Pillai v. Secretary of State through Collector of Madura (AIR 1923 Madras 582). The relevant observation is as under:‑‑ "That till such time the sale at auction. is not confirmed by the Authority, competent to do so, there' cannot be said to be a concluded contract between the parties.'

5. It is also' settled principle of law that contractual rights are not enforceable by recourse to writ jurisdiction of the High Court. In arriving to this conclusion, I am fortified by the judgment in case "M/s Moman Motors Co. v. Regional Transport Authority" (PLD 1962 SC 108). Reference can also be made in case "Jaiey & Company v. Union of India" (AIR 1972 Calkata 253) and "M. Muzaffar Din Industries. v. Settlement Rehabilitation, Lahore" (1968 SCMR. 1136). The judgments cited by the learned counsel for the petitioner is distinguishable on facts and law as the petitioner in the cited case, has alleged that the respondent was inimical and deposed against the appellant in the cited case from the very beginning; whereas in the present case, no specific allegation of mala fide has been. levelled against the respondent. It is also settled principle of law that. general allegation of mala fide is not maintainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑ PLD 1974 SC 151 in Saeed Ahmad Khan's case and PLD 1990 SC 1092 in Amanullah's case. In the present case the respondents had rejected the bid in the terms of tender notice. The counsel of the petitioner failed to point out that impugned rejection order was passed by the respondents, is in violation of the terms and conditions of tender notice, therefore, the writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in Ali Mir's case (1984 SCMR 433). The question of vested right and maintainability of the writ petition was not raised before the D.B. and judgment of the D.B. of this Court in supra Muhammad Din & Sons' case (PLD 1969 Lahore 823) and operative part of the judgment of the Hon'ble Supreme Courts mentioned above, were not brought to the notice of the D.B. by the learned counsel, who appeared on behalf of the respondents. In this view of the matter, the judgment cited by' the learned counsel of the petitioner is distinguishable on facts and law. Even otherwise, it is settled principle of law that the judgment of the E Hon'ble Supreme Court is binding on each and ever, organ of the State by virtue of Articles 189 and 190 of the Constitution. In view of what has been discussed above, the writ petition has no merits and the same is dismissed. Q.M.H./M.A.K./M‑792/L?????????????????????????????????????????????????????????????????? Petition dismissed.