1997 PLP 2651 (MLD)

Muhammad Aslam Awan, Legal Adviser for Respondent No.2. Syed Jamshed Ali Shah and Malik Ali Ahmad Awan for Respondent No.3. Date of hearing: 4th September, 1995. Petitioners through this constitutional petition have challenged the action of respondent No. l in giving the right of collection of export tax through negotiations to respondent No.3 vide his order dated 3‑8‑1995. Facts briefly for the disposal of this Constitutional petition are that an advertisement appeared in the 'Daily Pakistan' on 13‑7‑1995 in pursuance to the instructions of the Government of Punjab for leasing out collection of right of goods exit tax for the year 1995‑96 of the Zila Council Sargodha. The auction as reflected from the documents was held on 24‑7‑1995 under the supervision of eight members committee where the petitioners participated and they turned out to be the highest bidder for Rs.12,02,00,

000. Respondent No.2 Administrator Zila Council Sargodha referred their case with strong recommendation for confirmation before Secretary Local Government and Rural Development Punjab on 26‑7‑1995. It so happened that respondent No.3 Fateh Muhammad who admittedly was not participant in the auction proceedings approached respondent No. l with an application on 31‑7‑1995 wherein it was stated that he could not' participate in the auction due to certain reasons and offered Rs.12,25,00,000 for the grant of lease. This offer of respondent No.3 was accepted and approved by the Minister of Local Government and a direction was made on 3‑8‑1995 that the contract for the collection of rights exit tax Zila Council Sargodha for the year 1995‑96 be given to him. The moment the petitioners came to know about this development, petitioner No. l made an application on the same date praying that they were the highest bidders and had already deposited Rs. one crore with the Administrator Zila Council Sargodha. The grievance was made that in spite of this, the contract was being granted to respondent No.3 for Rs.12,25,00,

000. An inflated offer of Rs.12,40,00,000 was also made by the petitioners. This application was referred to the Minister for Local Government and the Additional Secretary made the following observations:‑

"The representation at P.16/C was received at 4.05 p.m. On 3‑8‑1995 when the Zila Council Sargodha had already been asked to give the contract to Mr. Fateh Muhammad as per M.L.G:'s orders at para. 11/n. Had at the representation been received before the issuance of letter at P.15/C, the M.L.G. would have been brought into picture. This office did the same in a similar situation, at paras. 9 and 10/n." Having failed to get the grievance redressed, the petitioners approached this Court through this Constitutional petition. Arguments have been advanced that the petitioners being highest bidders have been deprived of the vested right in an arbitrary manner without providing any opportunity of hearing in clear violation of the Punjab Local Government Lease Rules 1990 whereby no lease can be granted through negotiation or pursuation or any method other than open auction unless two attempts of auction have been made. Learned counsel for respondent No.3 has taken objection to the very maintainability of this writ petition. It is stated that the matter being contractual in nature, the writ petition would not be maintainable. It has also been argued that respondent No.2 after the conclusion of the agreement has embarked upon the collection of export tax and any interference at this stage would prejudice his right. The subsequent offer made by the petitioners for Rs.12,40,00,000 cannot be considered in the circumstances. Another argument has been advanced that the writ petition has not been filed in a bona fide manner as petitioner No.4 never signed the power of attorney and in this regard Civil Miscellanies No.3088 of 1995 has been moved. Learned Advocate‑General Mian Abdus Sattar Najum has reiterated his earlier stance taken before this Court on 17‑8‑1995 and stated in categorical terms that notwithstanding his legal objection of the maintainability of this writ petition, the Government is prepared to re‑examine the issue and fix the offer made by the petitioner at the fate of Rs.12,40,00,000 as a base line. This offer of the learned Advocate‑General was categorically accepted in clear terms by Dr. Qazi Mohyuddin and Mr. Ahmad Awais learned counsel for the petitioners. However, respondent No.3 has not acceded to this course of action. I have given my anxious consideration to the entire facts of this case. It is admitted and not denied that the petitioners were the highest bidders for Rs.12,02,00,000 in an open auction which held on 24‑7‑1995. It is also not denied that petitioner No.4 who has now moved Civil Miscellaneous 3088 of 1995 was also a party to that auction and participated alongwith petitioners Nos. l to 3 in the venture of securing the lease for the collection of export tax. It is surprising that petitioner No.4 throughout sided with petitioners Nos. l to 3 in the open auction and now has taken a somersault and is not supporting petitioners Nos.1 to 3 in their efforts to get the matter decided in accordance with law and rules. There is some force in the argument of the learned counsel for the petitioners that he is now siding with respondent No.3 for certain ulterior motive. His conduct to support respondent No.3 at this stage prima facie creates doubt in his bona fide. I do not want to dilate much on this issue as I am not persuaded to non suit the petitioners Nos. l to 3 simply on the ground that petitioner No.4 who was throughout with them has now changed his side. It is also admitted that respondent No.3 did not at all participate in the auction and instead, approached respondent No. l when the case of the petitioners for confirmation was pending. It is also not denied that the offer of the petitioners for Rs.12.40.00,000 was made on the same date when respondent No.3 was granted contract through negotiation in spite of the fact that he did not enter the arena. I feel sorry in observing that respondent No.3 himself has succeeded in securing the contract through negotiations in clear violation of Rule 4 sub‑rule 3 of the Punjab Local Council Lease Rules, 1990 and now before this Court has taken strong objection that the offer given by the petitioners for Rs.12,40,00,000 cannot be entertained. He wants different treatment for himself as compare to the petitioners. This is totally in contrast to hadis Mubarka where the Holy Prophet (p.b.u.h.) said that "treat others with similar/same treatment which you like from others unto yourself". In these circumstances to give fair opportunity to both the sides, I agree with the learned Advocate‑General, Punjab that to safeguard the interest of all the parties as well as the State, the auction for grant of rights to collect export tax be re‑held. Accordingly I declare the grant of lease to respondent No.3 through negotiation vide order dated 3‑8‑1995 being illegal and without lawful authority. It is directed that the lease of the collection of the goods export tax shall be re‑auctioned after its proper publicity in accordance with law and rules. Base line /reserved bid for the auction would be Rs.12,40,00,

000. It is made clear to petitioners Nos. 1 to 3 that in case they do not adhere to their offer, Rs. one crore already deposited by them shall stand for failed. The writ petition is thus disposed of with the above observations with no order as to costs. A. A./I‑161/L Order accordingly.