The Chairman ETPB, Lahore Vs Saleem Khan

Judqment Sheet

PESHAWAR HIGH COURT

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.647-4 of 2009

JUDGAENT

Date of hearing... .. 05/03/2020... ... .. Petitioner(s) ... (Chairman E.T.P.B etc.) by Rana Muhammad Ishaq, Advocate.

Respondent(s) ... (Saleem Khan and others) by Mr. Muhammad Faisal Soeed, Advocate.

AHMAD ALI, J:- The instant revision petition under section 115 CPC has been filed by the petitioners against the judgment and decree dated 10.09.2009 passed by the learned Additional District Judge-IV, Haripur, whereby, Civil Appeal No.45l13 of 2009 filed by the respondents against the judgment and decree dated 27.05.2009 of learned Civil Judge-III, Haripur, was allowed and the suit ofthe respondents was decreed as prayed for.

2 Brief facts of the case are that the petitioners intended to auction different Evacuee Properties and in this respect they issued a publication notice. The instant controversy pertains to the property situated in the revenue Estate of Malkiyar, District Haripur comprised

in Khasra Nos. 1451, 1473 and 1483 measuring 49 Kanals and 11 Marlas. The terms and conditions of the auction, being relevant to the present controversy are reproduced below for ready reference:- 1vBt),, -'! zV IY.f V e t t) 16.,(/ -1 s xlr t,/9,>@, P.,t i J VA'{J;,} 1 tL -z ;lv'..,,1 J,t, r-d r op : th -V( Lt /l !, L

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The auction proceedings were started and one Fareed Khan made the highest bid of Rs. 79,000/- and was declared as successful bidder. Consequently, as per condition No. 4 of the auction notice, offer was made to the respondents being in possession ofthe property, who

J

accepted the offer and deposited t/oth of the auction amount. However, through notification No. ETP/AK/HA/176 dated 18.03.2002, the auction was cancelled by the petitioners. Thus the respondents/ plaintiffs filed a declaratory suit, claiming therein that since they have accepted the offer as per condition No. 4 of the auction notice and have deposited 1/4s of the auction amount, as such the defendants/petitioners have no right to cancel the auction as now a lawful contract enforceable under the law exists in their favour. The suit was contested by the petitioners/defendants by filing their written statement. Learned trial court framed issues and recorded pro and contra evidence. Upon conclusion of evidence, arguments of learned counsel for the parties were heard and vide judgment and decree dated 27.05.2009, the leamed trial court dismissed the suit of the respondents. Feeling aggrieved, the respondents filed appeal before the leamed appellate court which was accepted vide judgment and decree dated 10.09.2009 and resultantly, the suit of the respondents was decreed as prayed for, hence the instant civil revision.

3.Arguments of leamed counsel for the parties heard and record of the case perused.

4 The main questions for determination before this court are; whether any right accrued in favour of the respondents/plaintiffs when they accepted the offer as per condition NO. 4 of the auction notice? And whether the Civil Court had the jurisdiction to adjudicate the matter?

5 The respondents claim that as per condition No. 4 ofthe auction notice, they accepted the offer and deposited 1/4th of the auction amount, therefore, after such process, the defendants/petitioners could not cancel the auction. The plaintiffs/ respondents on one hand have based their claim on condition No. 4 of the auction notice, while in the same notice condition No. 8 makes it discretionary for the competent authority to accept or cancel any auction without assigning any reason, which condition is not acceptable to the respondents/plaintiffs. The respondents have alleged malafide on the part of the petitioner for cancelling the auction, however, no cogent evidence could be brought on record to establish that the cancellation of auction by the competent authority was tainted with malafide. In the case of "Noor Muhammad Vs. Chief Engineer, Vl/otks & Seruices Department, N-l'y.F.P. Peshawar and 3

others (2007 SCMR 1572)" the august Supreme Court of Pakistan held that:-

" It has been specifically mentioned in the auction/publicity notice ofthe bid that the competent authority has the right to reject the bid without assigning any reason, therefore, it cannot be forced to the respondent to accept the bid of the petitioner which is lower than the reserved price. There is also no provision in the auction/publicity bid notice that while cancelling the bid, the petitioner will be given opportunity for hearing by the competent authority. "

6.Similarly, in the case of "Afzal Maqsootl But Vs, Banking Court No. II Lahore and I others (PLD 2005 SC 470)" it was held that:-

"The bid in an auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder, therefore, the confirmation of sale cannot be claimed as ofright."

The same view was affirmed in the case of "Province of Puniab and othets Vs. Munawar Hussain (2013 SCMR 161l), Mumtaz Ahmad Chadhar Vs' Rana Nusir Ali and 3 othets (2005 SCMR 263), Muhammad Hayat Vs. Direclor General, Lahore Development Aulhority and othets (2016 MLD Lahore 1287), and Mehmootl Medical Store thtough proptietors Vs'

Services Hospital Luhore through Medical Superintendent and 3 others (2012 YLR 174)".

7.The respondents, after accepting the offer, stepped into the shoes of highest bidders and in the light of law laid down by the superior Courts of the country, mere acceptance of offer and deposit of ll4th of the auction money, would not vest any right in favour of the respondents, unless and until the auction is approved by the competent authority.

8 Now coming to the second point, i.e. the jurisdiction of civil Court in the matter. Section 14 of "The Evacuee Trust Properties (Management & Disposal) Lct, 197 5" reads as under:- "14. Bar of Jurisdiction: Save as otherwise provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Federal Government, or anY fficer appointed under this Act ,s empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

Bare perusal of Section 14 of the "Act" would make it clear that the jurisdiction of Civil Court is barred in the matters wherein the Federal Govemment or any

officer appointed under the Act is empowered to determine. Leamed appellate court, while deciding this issue, based findings on mere presumptions that the cancellation of auction seemed to be the outcome of backdoor activity of Mr. Fareed Khan and the defendants, however, since there is no evidence on record in this respect, therefore, the findings arrived at on the basis of mere presumptions cannot sustain in the eyes of law. Since a specific procedure under the Act is provided to an aggrieved person, in the light of Section 10 to Section 16 of the Act, therefore the leamed trial court rightly concluded that civil court has got no jurisdiction in such like cases, and the findings of leamed appellate court are liable to be reversed.

9 For the reasons stated above, the present revision petition is accepted. The judgment and decree passed by the learned appellate Court is set aside and that is restored' reaving'n"'v ;::"::i::'"* t\' &qryd: JUDGE Dt.05.03.2020.

'Iufxil/* (Stt) ML Jusnce Ahnad Ali