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Petitioner: MUHAMMAD YOUNAS MALIK VS Respondent: PUNJAB PRIVATIZATION BOARD and 3 others
Court Name: Lahore High Court Judge(s): Muhammad Ghani Title: MUHAMMAD YOUNAS MALIK vs PUNJAB PRIVATIZATION BOARD and 3 others Case No.: Writ Petition No.13218 of 2003 Date of Judgment:2004-03-08 Reported As: 2004 YLR 1612 Result: Petition accepted
JUDGMENT
JUDGMENT ' The facts simple, straightforward and not disputed by the parties, are that land measuring 75 Kanals, 12 Marlas and 44 square feets located on main Ferozpur Road, within the Revenue Estate of Mouza Ichhra, Lahore, was acquired vide Notification No.7448-E&T-50152656, issued under section 4 of the Land Acquisition Act, 1894, and published in the Punjab Gazette of the 16th of October 1950 for a public purpose, namely, "Extension of Lahore Omnibus Service Stand" to be established by the Punjab Road Transport Corporation (PRTC). The acquisition proceedings were completed in the year 1954. PRTC was itself closed down in the year 1997, and then dissolved and disbanded vide Notification No.PS (SL&M)5489/97, dated the 26th of September, 1997, published in the Punjab Weekly Gazette of its Issue, dated the 19th of November, 1997. In the same year, the Government of the Punjab established and constituted Punjab Privatization Board (the "Board") through Notification No.FD.S0(AB-1)8-4/79, dated the 4th of August 1997, issued by the Finance Department of the Government of the Punjab. Originally, the Board consisted of the following:-- (1) Mr. Tariq Hamid Chairman (2) Makhdoom Khusroo Bakhtyar, M.P.A. Member (3) Mr. Muhammad Manshaullah Member Butt, M.P.A. (4) Maj. Gen. (Retd) Muhammad Member Ikram Cheema. (5) Mr. Khalil Mian Member (6) Khawaja Bilal Ahmad Member (7) Dr. Zafar Iqbal Qureshi Member (8) Chairman, P&D Board, Punjab Member (9) Senior Member, Board of Member Revenue, Punjab.
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(10) Secretary Finance, Punjab Member (11) Secretary Industries, Punjab Member ' It was an "Autonomous Body" answerable to the Cabinet Committee on Privatization. The Board was constituted for the purpose of undertaking "privatization/disinvestments/sale of industrial units, other enterprises and assets/properties owned by the Government of the Punjab." The above Board was superseded, and reconstituted vide Notification No.FD/SO(AB-1)8-1/97, dated the 22nd of February, 2000. The said Notification is extracted below for ready reference:-- "Government of the Punjab Finance Department Record Branch Dy. No.27 dated Lahore, the February 22, 2000 No.FD/SO(AB-I)8-4/97. In supe session of this department notification of even No., dated 4-8-1997, The Governor of Punjab has been pleased to reconstitute the Punjab Privatization Board (PPB to undertake privatization/disinvestment of assets/properties owned by the Government of the Punjab. (2) The Board shall be answerable to the Government, performing the functions of both the earlier Boards, constituted vide Finance Department's Notification No.F.D. SO(AB-1)8-4/97, dated 4-8-1997, and Cabinet Committee on Privatization (CCOP), constituted vide S&GAD's Notification No. CAB- 11/2-14/97 , dated 16-8-1997. The Board's composition, terms of reference and functioning will be as follows:-- (A) Composition ' Finance Minister Chairman ' Chairman, P&D Board Member ' Senior Member, Board of Member Revenue ' Finance Secretary Member ' Administrative Secretary Member concerned with the ' Property proposed of privatization. ' A suitable officer of BS- Secretary 18/19/20 in addition to his duties (B)Terms of Reference (i) To undertake privatization of assets of the Government of the Punjab as identified by the Government and in accordance with the policy/guidelines thereof. (ii) To determine suitable modalities for carrying out Privatization/sale transaction with widest possible participation. (iii) To ensure total transparency in inviting applications, evaluating bids received and formulation of recommendations for consideration by the Board. (iv) To appoint consultants, financial/legal advisors and chartered accountants where required for carrying out work connected with the Privatization. (v) To hold negotiations with the prospective buyers and sign agreements after approval by the Board. (vi) To recommend to the Government such labour/manpower rehabilitation programs as may be necessary while privatizing/selling assets and if so required to develop plans which may enable employees to adopt self-employment on the basis of small financing; and (vii) To advise the Government in implementing development programs for improvement of assets, if necessary, till their Privatization/disinvestments. Functioning ' All important policy issues considered by the Board shall be submitted to the Government for a final decision. (ii) The Board may submit summaries to the Governor under the rules of business in consultation with the department concerned. (iii) The Board shall perform all such functions as earlier devolved on the PPB and the CCOP.
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(iv) The Board shall have its own Secretariat. Sd/- (Arshad Bin Ahmad)Additional Finance Secretary (Development)." ' It appears, the composition of the Beard had undergone changes, from time to time, and the Board, relevant for the present case, consisted of the following:-- (1) Brig. (Retd.) Anis Ahmad Chairman (2) Mr. Zia-ur-Rehman, Senior Member Board of Member Revenue, Punjab.. (3) Mr. Salman Siddique, Secretary Finance. Member (4) Mr. Javed Aslam Member Member (Colonies), Board of Revenue, Punjab. (5)Mr. Shahid Khan, Director General, Lahore Development Authority Member (6)Mr. Arshad Bin Ahmad, Member P&D Board, Rep. Of Chairman P&D Board Member (1) Mr. Shahzad Alam Member (2) Mr. Muhammad Zahir Raja, Secretary Secretary PPB ' It is a common ground between the parties that by means of an advertisement, which appeared inter alia in the Daily "Nawa-e-Waqt" of its Issue dated the 22nd of October 2002, the "Secretary Punjab Privatization Board, Government of the Punjab" invited Sealed Tenders for sale of the said land on "as is where is" basis. The Sealed Tenders had to reach the Office of the Secretary of the Board by 1-00 p.m. On the 7th of November, 2002, and were to be opened at 2-00 p.m. The same day. Every Sealed Tender was to accompany Bank Draft/Pay Order in the sum of Rupees One Million in favour of the Board, payable in Lahore. Whereas, on the one hand, the Board retained the power to reject any or all of the offers without assigning or disclosing reasons and, on the other, it could negotiate with any of the bidders in connection with the sale of the property. It was stated in the advertisement that details could be seen in the "Bid Documents". 2. When the above advertisement appeared in the Press,' one Muhammad Khalid Qureshi hastened' to file Writ Petition No.19555 of 2002, to be exact on the 5th of March 2002, impleading Secretary of the Board; Collector/District Officer (Revenue), Lahore, and the Government of the Punjab, through Senior Member, Board of Revenue, as respondents, claiming that his later father, Muhammad Ismail, was owner in possession of land measuring 2 Kanals, 5 Marlas and 199 sq. Fts. Which had been acquired, in 1950 by the Government of the Punjab for extension of Lahore Omnibus Service Stand; that in November 1997, PRTC was dissolved; that since the land of the said petitioner's father was acquired for PRTC, with the dissolution of PRTC, the land had become available, and that, therefore, in view of the provisions of Rule 14 of the Punjab Financial Commissioner's Standing Order No.28, the land was liable to be restored to the legal heirs of Muhammad Ismail, who had, in the meantime, died. The petition came up for hearing on the 6th of November 2002 before the Honourable Chief Justice, when. Respondent No.3 (Government of the Punjab, through Senior Member, Board of Revenue) was directed to submit a report. 3. Pursuant to the advertisement, in all seven sealed bids were received, which were opened on the 7th of November, 2002, in the presence of the bidders, by the Auction Committee, headed by the learned Member (Colonies), Board of Revenue, Punjab, Lahore. The following four top bidders offered bids as mentioned against their names. (1) Dr. Farooq Saeed Khan Rs.177.50 Million (2) Nawaz Khan Trading Rs.170.00 Million Company (3) Mr. Khalid Randhawa Rs.101.00 Million (4) Mohammad Younas Rs.55.25 Million Malik ' On the 14th of February, 2003 when Writ Petition No.19555 of 2002 filed by Muhammad Khalid Qureshi again came up for hearing, the following order was made:-- "In the meanwhile, auction proceedings of Bus Stand shall not be concluded."
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' The above-named bidders were then called by the Special Committee for Negotiations on the 19th of April, 2003 so that they could be required to improve their bids. Accordingly, in the meeting of the said date, the bidders improved their bids as follows:- (1) Dr. Farooq Saeed Khan Rs.195.00 Million (2) Nawaz Khan Trading Rs.190.00 Million Company (3) Mr. Khalid Randhawa Rs.191.00 Million (4) Mohammad Younas Rs.235.00 Million Malik ' In its 23rd meeting held on the 7th of June, 2003, the Board passed the following Resolution:-- ' Item No, 2 Disposal of old PRTC workshop/depot located at Ichhra, Lahore The Board considered the report of the Special Committee for Negotiations in this case and appreciated the excellent work done by the Committee to get the highest bid of Rs.235.000 million. The case was deliberated upon in detail and it was unanimously decided as under:-- (1) The highest bid of Rs.235.000 million offered by Mr. Muhammad Younas Malik be accepted as per the following conditions/terms of payment:-- (a) 25% of bid upfront within 30 days of the bid approval. (b) 75% Bank Guarantee within 90 days of bid approval. (c) Bank Guarantee for 365 days from bid approval date. (d) On as is where is basis. (e) Possession on furnishing of Bank Guarantee, thereafter all title transfers wholly or partially with bidder. (2) It will be ensured that the Bank Guarantee provided by the bidder is from a Scheduled Bank and the Guarantee will be got verified from the Bank before delivering possession." ' After the aforementioned decision, an application (C.M. No.1060 of 2003) was filed in this Court on the 5th of July 2003 by the Board, through Mr. Muhammad Naeem Khan, its Legal Advisor, seeking earlier hearing of Writ Petition No.19555 of 2003 filed by Muhammad Khalid Qureshi, and for vacation of the stay order granted on the 14th of February, 2003 (wrongly mentioned as "6-2- 2003"). The application came up for hearing on the 9th of July 2003 when it was directed that the main petition be posted for hearing immediately after summer vacations . Of 2003. On the same day, another application (C.M.No.1147 of 2003) was filed by the Board through the learned Advocate-General, Punjab, for almost the same relief, as was prayed for in C.M. No.1060 of 2003, except that this time the date of the injunctive order was correctly mentioned as the 14th of February 2003. Whereas paras 5 and 8 of the first application (C.M. No.1060 of 2003) were repeated as paragraphs 10 and 11 with minor changes, paragraph 5 of the application, being relevant for the present purpose is reproduced for facility of reference:-- "5. That the Punjab Privatization Board is a party in that writ petition as respondent No.1 and the Government has entrusted the property titled PRTC Depot Ichhra measuring about 75 Kanals, including the piece of land claimed by the writ petitioner for its auction. The property was put to auction on 7-11-2002 i.e. Before the stay order was passed. But in pursuance of the restraint order of the Honourable Court the auction proceedings have not yet been concluded by the Punjab Privatization Board. It is pertinent to mention here that the sealed bids were opened on 7-11-2002 and the highest bid of Rs.177.5 million was received (Annex-A). In accordance with decision of the Punjab Privatization Board vide working papers and minutes of its 39th meeting, sub-paras VI to IX under Item No.3 as Annexure-"B", the highest three bidders were called for negotiation by the Special Committee for negotiation comprising of Secretary Finance Department, Mr. Shahzad Alam and Secretary Punjab Privatizationm Board. Afterwards vide PPB's decision in its 41st Meeting dated 7-4-2003 as Annexure "C" it was decided that the Negotiation Committee shall further negotiate with the highest bidders and D.G., L.D.A. Was also included in the Negotiation Committee. The Special Committee for Negotiations finalized their negotiations on 19-4-2003. The Committee while
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conducting negotiations offered revised payment of schedule to the bidders as a result of which the highest bid of Rs.235.00 million was received (Annex-D). The highest bid received before the Special Committee for Negotiations amounting to Rs.235.000 million was approved by the Punjab Privatization Board in its 43rd Meeting held on 7-6-2003 (Annex-"E"). However, due to the pendency of that writ petition the formal approval of the bid was not issued to the highest bidder. Keeping in view the pecuniary interests of the Government, a Civil Miscellaneous for the early hearing of the writ petition and for the vacation of stay order was filed before the Honourable Court on 8-7-2003, which was heard on 9-7-2003. The Honourable Court dismissed the said C.M." (Emphasis supplied). ' It appears, Malik Muhammad Younas, petitioner herein, had learnt about the pendency of the said writ petition, because presence of Mian Nisar Ahmad, Advocate, his learned counsel, is marked in the order, dated the 23rd of July, 2003 as well as in the order, dated 10th of September, 2003. On the date last mentioned, Writ Petition No.19555 of 2002 was finally dismissed. Needless to mention that against the said order of dismissal of his writ petition, Muhammad Khalid Qureshi has filed I.C.A. No.622 of 2003, which is still pending in this Court. 4. In the above back-drop of events, the petitioner, through his learned counsel, served, on the 13th of September, 2003, the following Legal Notice on the Board as well as its Secretary:-- "Legal Notice Dear Sir, ' I have been instructed by Mr. Muhammad Younas Malik son of Malik Muhammad Yaqoob, resident of 173-Scotch Corner, Upper Mall, Lahore, to hereby give you the following:--- (1) That in fitness, the Punjab Government in accordance with law had acquired land measuring about 75 Kanals located in Mauza Ichhra, Lahore, for public purpose that is to say for use and occupation of Punjab Road Transport Corporation. (2) That in 1997 PRTC was dissolved and the Punjab Government decided to sell the same through public auction and directed the Punjab Privatization Board to do the needful. (3) That after wide publicity/ advertisement bids were invited by you (Punjab Privatization Board) the Competent Authority. It may be relevant to point out that the publicity/advertisements comprehensively contained the terms and conditions of the proposed sale. 4. That on due date besides others, my client submitted his offer in terms invited by you. It may be pertinent to point out that the bid of my client so tendered at that time was Rs.175.829750 Million. (5) That the Competent Authority, however, decided to undertake negotiations with 4 highest bidders and in this regard a Special Committee was constituted directing also that the Director General, Lahore Development Authority will also be its member. (6) That in view of the direction of the Board the Special Committee intensively undertook the negotiations and persuaded the 4 bidders (jncluding my client) to raise their respective bid so that the land in question could fetch highest price. That one of the terms of the bid/auction was that after approval of the highest bid a letter would be issued in term of the Schedule for payment of the price which as stated above was published in the Daily newspaper etc. (7) In this process my client turned out to be highest bidder in the open auction whose offer was Rs.235 million as price for the land measuring 75 Kanals as detailed above. It may be pointed out that my client through his letter dated 19-4-2004 addressed to Convener, Special Committee for Negotiation, inter alia, undertook to pay 5% over and above the purported highest bid of any of other competitors. This gesture of my client was copied by the other three bidders as well. It is, however, stated that this development from the side of other three bidders would have resulted into confusion but thank God they did not raise the bid to the one finally offered by my client i.e., Rs.235 million. This highest bid of my client was accepted by the Special Committee and approved by the Board. (8) That my client was anxiously awaiting for the promised letter, when he learnt that one Muhammad Khalid Qureshi had filed a constitutional petition in the Lahore High Court, Lahore. My
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client after making strenuous efforts, learnt that the above named Muhammad Khalid Qureshi had filed Writ Petition No.19555 of 2002, praying, inter alia, that the land acquired from his father be returned to him and others. The writ was placed for hearing before His Lordship the Chief Justice of the Lahore High Court, Lahore, who on 14-2-2003 was pleased to direct the Secretary of the Board "in the meanwhile, auction proceedings of Bus Stand shall not be concluded. " ' That in the meanwhile the Board moved an application (C.M. No.1147 of 2003) for the vacation of the order dated 14-2-2003 and to his great astonishment and surprise my client noticed that the Board has started attempting to invade and destroy the vested rights of my client which he had acquired lawfully, inter alia by offering the highest price for the land in question. It will suffice to say that after the acceptance and approval of the offer of my client by the competent authority, a valuable and vested right had accrued in his favour and no one is permitted and authorized under the law to destroy and/or take away such rights. It may be added that the referred writ petition of Mr. Muhammad Khalid Qureshi was dismissed on 10-9-2003 by his Lordship the Chief Justice. ' In view of the above I will request you to kindly adhere to the law in its true perspective and issue the promised letter within 7 days enabling my client to deposit the firSt installment of 25% of his bid amount. Since this transaction involves great interest and heavy risk you are requested to kindly adhere to this period of 7 (seven) days and issue the promised letter accordingly. Failing which it will be taken that you are not interested to follow the law of the country and are bent upon invading the vested rights of my client. ' A copy of this Legal Notice has been retained in my office for future reference. Yours faithfully, Sd/- (Mian Nisar Ahmed) Advocate" ' The Board or its Secretary, however, did not respond to the aforementioned Legal Notice. On the other hand, the following advertisement appeared, amongst others, in the "Daily News" of its Issue, dated the 23rd of September, 2003. ' Sale Through Auction PRTC Depot (Ichhra Lahore) ' Punjab Government property-PRTC Depot Ichhra Lahore measuring approximately 75 Kanals, 12 Marlas is offered for sale through sealed bids on "Where is as is "basis. Previously a bid of Rs.235 million for the whole property has been received. For the sale of this property sealed tenders (bids) are invited on the following terms and conditions:-- ' The sealed bids should essentially be more than Rs.235 million and should reach the office of the undersigned latest by 12-00 Noon on 8-10-2003 (Wednesday). ' The prospective bidders will have to deposit 10% of their bid as Earnest Money in the form of Bank Draft/Pay Order, payable at National Bank of Pakistan, Shadman Chowk Branch, Lahore in favour of Punjab Privatization Board. No bid shall be accepted if .Not accompanied by draft/pay order for earnest money. The Earnest Money will be returned if the bid is rejected. ' All the sealed bids will be opened on 8-10-2003 (Wednesday) at 1-00 p.m. In presence of all the bidders in the office of undersigned under supervision of Auction Committee. Auction Committee will have the right to further negotiate with the bidders. ' The present highest bidder will have the pre-emptive right to match the new highest bid. Total payment schedule will stretch over a maximum period of 365 days from the date of issuance of ,bid approval as detailed below:--- 25% of the offered price (including Earnest Money) in the form of Pay Order/Bank Draft payable at National Bank of Pakistan, Shadman Chowk Branch, Lahore within 30 days from the date of issuance of bid approval. Remaining 75% of the total price is to be paid within 90 days of issuance of the approval letter in the form of Pay Order/Bank Draft payable at National Bank of Pakistan, Shadman Chowk Branch, Lahore or in the form of an irrevocable and unconditional Bank
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Guarantee for the remaining period of the payment schedule from a 1st Class Scheduled Bank which must be encashable without recourse to any third party. ' After verification of the said Bank Guarantee or clearance of Pay Order/Bank Draft, all rights to possession and transfer of title shall, be vested into the successful bidder, on payment of prescribed stamp duty, registration fee, local and special taxes, if any, by the bidder. ' Advance Income Tax will not be charged. ' Any violation of payment schedule would be liable to confiscation/forfeiture of Earnest Money/any other amount deposited. ' PPB reserves the right to reject any or all the bids/offers without assigning any reason. ' For further information please contact: ' Secretary Punjab Privatization Board, Government of the Punjab, Lahore Chamber of Commerce and Industry Building, Second Floor , Awan-i-Tijarat Road (Race Course Road), Lahore. Tel: 042-9200529, 9200534,5 Fax: 9200538 Web site: http://www.Punjab gov.Pk./ppb/index.Htm E-mail: privatizationboardehotmail .Com ' The petitioner being the highest bidder, he was sent a letter on the 24th of September, 2003 by the Deputy Secretary of the Board to the following effect:-- "In accordance with Board decision taken in its 44th meeting to re-advertise PRTC Bus Depot Ichhra property, the Punjab Privatization Board has invited through Press (copy enclosed) sealed bids/offers for the sale of subject property. The sealed bids will be received latest by 12-00 on Wednesday the 8th of October, 2003 and will be opened on the same day at 1-00 p.m. In the PPB Committee Room in the presence of the bidders under the supervision of Auction Committee. The Auction Committee will have the right to negotiate with all bidders for higher price. If you want to match the highest negotiated bid please participate in the bid opening meeting to be held on the date and time mentioned above. If it is not possible for you to attend the bid opening meeting personally, please depute your representative duly authorized to attend and participate in negotiations on your behalf, failing which you will exhaust the privilege of right to match the highest bid." ' On the 3rd of October 2003, "The Secretary, ' Punjab Privatization Board, 2nd Floor, Chambers of Commerce Building, Aiwan-e-Tijarat (Race Course) Road, Lahore. Subject: Opening of sealed bids invited for the sale of old PTRC Bus Depot Ichhra. ' Dear Sir, ' With reference to your letter No.SODG/PPB/6-12/2003/2926/03 dated September 24, 2003, on the subject noted above. ' I would like to point out for your information that consequent upon the Publicity/Advertisement for sale of land of old PTRC Bus Depot Ichhra, Lahore, I participated in the bids on 7-11-2002. Thereafter, it was decided by the PPB to negotiate with the 4 highest bidders for which a Special Committee for Negotiation was constituted. On 19-4-2003, the Negotiation Committee held its meeting and was deliberated that open auction will be carried out. ' In this process, I offered Rs.235 million which was accepted by.The Committee and then approved "by the Board in its 43rd meeting, duly lauded and appreciated by the members of the Committee and other bidders as well. Thereafter, a schedule for the payment was drafted for issuance of the formal letter. It was pity that due to the sub judice case in the Lahore High petitioner responded to the above letter as under:- ' Court, Lahore, in connection with about 2 Kanal of land Mr. Khalid Qureshi has filed writ petition. The Lahore High Court, Lahore, directed the Secretary of the Board "in the meanwhile, auction
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proceedings of the Bus Stand shall not be concluded", therefore, the formal letter of acceptance could not be issued. On 10-9-2003, the Honourable Lahore High Court, Lahore dismissed the writ petition of Mr. Khalid Qureshi despite of the vacation the letter in question was not issued with mala fide intention. ' You are well aware that I turned out to be highest bidder and after hard competition owing to my hectic efforts my offer was…
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