MUHAMMAD YOUNAS KHILE vs CAPITAL DEVELOPMENT AUTHORITY. ISLAMABAD
This matter concerns a petition for leave to appeal against the dismissal of a writ petition challenging the cancellation of a commercial plot auction by the Capital Development Authority (CDA). The petitioner, having successfully bid for a plot, had his auction cancelled and his deposit forfeited. Subsequently, the petitioner requested a refund of the forfeited amount from the CDA, explicitly undertaking in an affidavit that he would not initiate any legal proceedings against the authority if the refund was granted. The CDA accepted this, and the money was refunded. The core legal question is whether a petitioner, having accepted a refund of forfeited funds upon the express condition of waiving the right to litigate, can subsequently invoke the writ jurisdiction to challenge the underlying cancellation. The Supreme Court held that the petitioner, having voluntarily accepted the refund and waived his right to sue, was precluded from challenging the auction cancellation. Consequently, the court affirmed the denial of equitable relief under Article 199 of the Constitution of Pakistan 1973, holding that no ground for interference existed.
- Can a petitioner who has accepted a refund of forfeited auction money upon the condition of waiving the right to sue subsequently challenge the auction cancellation in a writ petition?
- Is a party entitled to equitable relief under Article 199 of the Constitution of Pakistan 1973 after having contractually waived the right to initiate legal proceedings?
- Does the acceptance of a refund of forfeited auction money constitute a waiver of the right to challenge the cancellation of the auction?
- Article 199, Constitution of Pakistan 1973
SAIDUZZAMAN SIDDIQUI, J.---The petitioner participated in auction of commercial plots held by the Capital Development Authority (CDA), Islamabad on 17-3-1995 and became successful being the highest bidder for Plot No,94-E situated in Civic and Business Centre, South Blue Area, Shalimar Centre-7, Islamabad. The petitioner gave the highest bid of Rs,38,19,946.60 and on acceptance of the bid he deposited a sum of Rs,9,65,000 towards the auction price of the said plot. The auction was, however, not confirmed in favour of the petitioner and by letter dated 17-4-1985 the petitioner was informed that the auction of Plot No,94-E has been cancelled for the reasons stated in that letter and accordingly, the amount of Rs,9,65,000 deposited by the petitioner towards the price of the said plot, was forfeited by C.D.A. After cancellation of auction held on 17-3-1985, the plot was put to re-auction on 25-8-1986 and was purchased by M/s. Mercantile Cooperative Finance Corporation against the highest bid of Rs,86,76,600. The petitioner instituted Writ Petition No,556 of 1986 challenging cancellation of auction by C.D.A. On 17-3-1985 and the re-auction of Plot No,94-E on 25-8-1986. The writ petition was ultimately dismissed by the learned Single Judge of Lahore High Court, Rawalpindi Bench, by order dated 5-12-1995. The petitioner then preferred Intra-Court Appeal No,8 of 1996 which also met the same fate. The petitioner is now seeking leave to appeal against the judgment of learned Intra-Court Appeal Bench.
2. Mr. Mushtaq Ahmad Khan, the learned counsel for the petitioner contended before us that the learned Judges of Intra-Court Appeal Bench misread the record in holding that the writ petition filed by the petitioner suffered from excessive laches as it was filed on 3-5-1996 to challenge the orders dated 17-4-1985 and 12-11-1985. The learned counsel pointed out that in fact the writ petition was filed by the petitioner in the year 1986 and not in 1996 as held by the learned Intra-Court Appeal Bench. It is further contended by the learned counsel that the learned ICA Bench as well as learned Single Judge failed to take into account that the petitioner participated in the auction of Plot No,94-E on behalf of another person and not in his own right and as such the reasons given by the C.D.A. For cancellation of the auction in their letter dated 17-4-1985 were not sustainable.
3. The grant of leave is opposed by respondent No,4 who has filed a caveat in the case. Alongwith the caveat, respondent No,4 has annexed a copy of the letter dated 4-9-1985 addressed by the petitioner to the Additional Director (E & M), C.D.A., Islamabad, which reads as follows:-- "To The Additional Director (E/M), Islamabad.
Subject: AUCTION OF COMMERCIAL PLOTS ON 17-19 MARCH OF PLOT NO.94-E, BLUE AREA F-7 & 0-7.
ISLAMABAD.
Reference your Letter No, CDA/EM-27 (1382/84/1782, dated 17-4-1985).
Dear Sir, It is learnt from some reliable sources that money forfeited against the plots auctioned on 17-19th March, 1985 is refunded to the allottee/concerned persons if they produce an affidavit in favour of C.D.A. That they will not file any Suit/Case against C.D.A.
My money of Rs,9,65,000 (Rupees nine lacs sixty-five thousand) was also forfeited against the Plot No,94-E Blue Area F-7 and G-7, Islamabad vide your letter mentioned above.
As required I submit my affidavit in this regard and is, therefore, requested to refund the above amount and oblige. Yours faithfully, (Sd.)
(M.Younis Khilji), H.No,7 Steet No,33 F.8/1 Islamabad."
Dated: 4-9-85.
4. The learned counsel for the petitioner does not dispute the genuineness of above document produced by the caveator alongwith his caveat. It is quite clear from the above letter dated 4-9- 1985 addressed by the petitioner to respondent No,3, that before filing the writ petition in the High Court to challenge the re-auction of Plot No,94-E, the petitioner had applied for refund of the amount of Rs,9,65,000 deposited towards the auction price of the Plot No,94-E which was forfeited by C.D.A. As a result of cancellation of the auction. The refund of the amount was on the condition that the petitioner will not challenge the re-auction of plot by the C.D.A. It is not disputed before us that in the affidavit filed by the petitioner before the C.D.A., the petitioner clearly stated that in case the amount is returned to him, he will not file any case/suit against C.D.A. The amount was accordingly returned to the petitioner by C.D.A. In these circumstances, the petitioner was rightly denied equitable relief under Article 199 of the Constitution. No ground for interference with the orders of the High Court is made out. The petition is, accordingly, dismissed and leave is refused.