P L D 2001 Lahore 453 (PLP)

(2) The Mills Manager being defaulter should pay Tawan of Rs. 11,36,916 and other arrears if any. (3) They should also pay the interest and panel interest since the period they are in possession of the land. (4) The land may be sold to the Rathan Mills for industrial purpose on market rate. It is stated that 'the petitioner withdrew the I.C.A. deposited Rs. 2,98,307, the amount of Tawan as reduced by the, Assistant Commissioner: However, there is nothing on the record if condition No.3, was also fulfilled. Thereafter, the Deputy Commissioner, Faisalabad, wrote a letter to the Commissioner, Faisalabad Division dated 10‑4‑1986, alongwith which a summary of the matter, was also put up, in which, it is mentioned as follow: "The Mill Management is ready to pay the market price of the land, the price of land has already been recommended in accordance with the notification of the Board of Revenue dated 20‑2‑1985, at Rs. 15,000 per Marla and is pending approval of the Commissioner. " However, the Commissioner did not approve this sale consideration, and it seems from the record, that the Commissioner constituted a Committee, for the purpose of determination of the market price. As per letter of the Commissioner, dated 4‑4‑1999, the price recommended was Rs. 3,00,000 per Marla. Against the above, the petitioner represented through a letter: dated 23‑4‑1999, stating that this price is exorbitant and petitioner has not been heard before determination thereof. Anyhow, before this matter could be finally resolved, when vide letter dated 1‑5‑1999, from the Board of Revenue to the Secretary Punjab Privatisation Commission, it was conveyed, that the Chief Minister of Punjab, has decided to dispose of the land in question through an open auction, thus the Privatisation Board was asked to take necessary action in this behalf. It is this order of the Board of Revenue dated 1‑5‑1999 and the order of the Commissioner, dated 4‑4‑1997, which have been impugned in the petition, mainly on the ground that the land has already been agreed to be sold to the petitioner through private treaty, for the consideration of Rs. 15,000 per Marla, which was, acceptable to the petitioner, consequently, the subsequent change of the price by the Commissioner, without giving any opportunity of hearing to the petitioner, is illegal and unlawful and the respondents have no authority in law to sell the land through open auction by the Privatisation Board.

3. Learned counsel for the petitioner by relying upon unreported judgment of this Court in W.P. No‑19065 of 1998, particularly referring to paragraphs Nos. 18 and 19, states that the price should have been determined and demanded from the petitioner, which was prevalent at the time, when the application was moved by the petitioner, for the purchase of the suit land and this offer was accepted by the concerned authority, therefore, the fixation of the price by the Commissioner, at the rate of Rs.3,00,000 is not the market rate of the land in question and thus cannot be claimed by respondents. By also relying upon Syed Ali Shah's case 1994 CLC 369, it is contended that in the aforesaid case, this Court held that the commercialisation fee should be charged, from the petitioner of that case, which was prevalent, when the application for commercialisation was moved. The principle is attracted to the case in hand. On the basis of above, the learned counsel has reiterated his submission that the order of the Commissioner, dated 4‑4‑1997 unilaterally fixing the price, is absolutely illegal and without jurisdiction. It is further contended that the Deputy Commissioner, along with his letter dated 10‑4‑1999 had sent a summary to the Commissioner stating that Rs.15,000 per Marla, be charged from the petitioner, as per the notification mentioned therein. This was accepted by the petitioner, thus the Commissioner could not change the market rate other than as recommended by the Deputy Commissioner. ‑It is also contended that in two similar cases, pertaining to the same Chak, land has been sold to Messrs Crescent Textile Mills and Koh e‑Noor Mills at the rate when applications were moved by the said concerns for the transfer of the land. This is established from the judgment of the learned Single Judge, in Writ Petition No. 19065 of 1998. The submission therefore, is that the petitioner should also be given same treatment and that the demand of price by the Commissioner, is discriminatory and violative of the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan. Learned counsel for the petitioner also submits that the petitioner has been condemned unheard. The Commissioner before determining the price of Rs. 3,00,000 per Marla, did not afford any opportunity of hearing to the petitioner. Likewise before taking the decision that the land be disposed of, through open auction by the Privatisation Board, the petitioner was not heard. This violates the principles of natural justice. In support of the above submissions, reliance has been placed on Ghazi Fabric International Limited, Gulberg‑III, Lahore's case PLD 2000 Lah. 349; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Messrs Farid Sons Limited, Karachi's case PLD 1961 SC 537 and Mehar Zulifqar Ali Babu and others' case 1997 SCMR 117,

130. Learned counsel for the petitioner, has vehemently argued that on account of above facts, a vested right has been created in favour of the petitioner, which cannot be taken away in the manner, as has been done by the respondents. Petitioner is thus entitled to purchase the land at the rate mentioned in the letter of the Deputy Commissioner. It is further submitted that the State/Government is bound by the principle of promissory estoppal. Once a promise has been made to the petitioner for the sale of the land through private treaty, such promise cannot be broken. Reliance is placed on the cases reported Messrs M.Y. Electronics Industries (Pvt.) Limited through Manager's case 1998 SCMR 1404; Mst. Nur Jehan Begum's case 1991 SCMR 2300 and Messrs Army Welfare Sugar Mills Limited's case 1992 SCMR 1652. Lastly, it is submitted that the State/Government is bound to act fairly and justly to its citizen keeping in view the Injunctions of Islam and should not breach its solemn promise. Reliance is placed on Shaukat Ali's case 1997 SCMR 342.

4. I have heard learned counsel for the parties. As regards the judgment of this Court, in Writ Petition No. 19065 of 1998, is concerned, the facts of that case are totally distinguishable from the matter in hand. The price in the said case was settled to be fixed on the basis of a formula, which was accepted by the petitioner of that case. On the basis of the above formula, the Deputy Commissioner, calculated the price amounting to 3,68,469.7 and this amount was paid by the purchaser. Subsequently, due to certain reasons, the property could not be conveyed to the purchaser and ultimately, it was decided by this Court that the Government is not entitled to charge any amount over and above the price fixed and paid by the seller. In the instant case, the price mentioned in the letter of the Deputy Commissioner, was only a recommendation which was subject to the approval of the Commissioner. The Commissioner, constituted a Committee for the determination and evaluation of the rate and conveyed it to the petitioner. This was not accepted by the petitioner, rather petitioner filed a representation, which representation was neither permissible under any law nor was part of the conditions of negotiation between the parties. Before determination of the price, the petitioner was not entitled to any hearing, because it was the prerogative of the seller to fix the price and if the petitioner wanted to purchase the property for consideration, should have accepted the offer otherwise, the seller cannot be compelled to sell the property on the price, which the purchaser desires. Consequently, there was no concluded agreement to sell between the parties, which could create a vested right in favour of the petitioner enforceable under the law.

6. For the submission that the petitioner should have been charged on the basis of the price, prevalent at the time when the application was moved and the reliance on 1994 CLC 369 in this behalf, suffice it to say that the aforesaid judgment pertains to the payment of commercialisation fee, but in the present matter, it is about the sale of the property and cannot be equated to the commercialisation charges.

7. As regards the submission that the State is bound by the principle of promissory estoppel. It may be held, that though the State did agree to sell the property in question to the petitioner through a private treaty, but never made any promise qua the price, which was yet to be finally determined by the competent authority and conveyed to the petitioner. It was ultimately done by the Commissioner, but was not accepted by the petitioner. It was the prerogative of the State/seller to determine the price, which as per the order of the Commissioner, was fixed Rs. 3,00,000 per Marla, but was not accepted by the petitioner, therefore, it cannot be held that the State ever agreed to sell the property for Rs. 15,000 per Maria, and having not sold the property for that price, has breached the rule of promissory estoppel.

8. As the petitioner did not agree to the price of Rs. 3,00,000, therefore, the State was well within its authority to change its decision to sell the property to the petitioner through a private treaty and in order to fetch the better competitive price could direct the sale through open auction. It may be pertinent to state here that while exercising its Constitutional discretion, the Court cannot remain oblivious of the fact that, presently the country is facing serious financial crunch and needs money for the purpose W meeting its budgetary target, development works and debt obligations therefore, in order to achieve the above objects, if the Government has decided not to sell the property to the petitioner, through a private arrangement, particularly, when no valid agreement to sell ever concluded between the parties. The Government cannot bound by any rule of Contract Law, the principle of fair-play, equity for promissory estoppel necessarily convey the property to the petitioner for the price the petitioner wants to offer. The decision of the Government to sell the property through open auction, is absolutely in lines with the rule of transparency essential for disposal of the State property and in the best interest of the State, the petitioner shall have alt opportunity to participate in the open auction, thus in the facts and circumstances of the case, I find that the public interest should prevail upon so called vested right of the petitioner. However, keeping in view, for certain reasons, that the petitioner has always been keen to purchase the property, therefore, it may be observed that in case, the petitioner is not the highest bidder in the auction held by the Privatisation Board, then before taking the decision to approve the auction for the price offered by the highest bidder, the petitioner must be offered to match the highest bid and in case, that is so done by the petitioner, the property be sold to it.

9. As regards the issue raised by the respondents' side that the petitioner is in illegal and unauthorised possession of the suit land, since long and is also liable to pay the Tawan, I do not intend to enter into this area. However, I feel inclined to observe that in this behalf, the respondents. are free to initiate any proceedings against the petitioner, for the determination of his liability and after hearing ‑the petitioner, can determine the amount due and recover the same from the petitioner in accordance with law. In the light of above, this petition has no force and is hereby dismissed. M.B.A./C‑‑98/L Petition, dismissed.