PLJ 2009
[
Present: Pervaiz Inayat Malik, J.
IKRAM-UL-HAQ--Petitioner
versus
T.M.A. etc.--Respondents
W.P. No. 5550 of 2008, decided on 11.5.2009.
----R. 16(4)--Constitution of
Malik Muhammad Naeem Iqbal, Advocate for Petitioner.
Haji Muhammad Aslam, Advocate for Respondents.
Date of hearing: 11.5.2009.
Judgment
Through this constitutional petition, the petitioner is aggrieved of in-action on the part of respondents and subsequent refusal to refund a sum of Rs. 12,00,000/- only deposited by the petitioner as earnest amount.
2. The Briefly stated facts as those emerged out of this constitutional petition are that petitioner being a Registered contractor, with good reputation and statutes, in response to advertisement published in daily news paper participated in the auction for collection of fee for transfer of Immovable property, within the jurisdiction of respondents, for a period of nine months with effect from 1.10.2008 to 30.6.2009. Statutory pre-requisite for participation in the open auction was submission of Call Deposit of Rs. 12,00,000/- only as earnest money/Zare-advance at the rate of 5% reserved price of the contract.
3. It is inter alia contended that petitioner being a Registered contractor, with good reputation and status, in response to advertisement published in daily news paper participated in the auction for collection of fee for transfer of immovable property, within the jurisdiction of respondents and having been declared as successful bidder, was required to submit call Deposit of Rs. 54,65,630/- only in lieu of Rs. 46,00,000/- through letter dated 27.9.2008. In compliance whereof just within a period of three days i.e. 30.9.2008 the petitioner submitted a Call Deposit of Rs. 46,00,000/- which was not entertained by respondents nor the petitioner was allowed to work; that the petitioner, thereafter, approached the respondents with repeated requests that either he may be allowed to work as per terms of advertisement for entertaining the call deposit dated 27.9.2008 in terms of the advertisement and conditions of auction or earnest money amount may be refunded/returned to him but neither the petitioner was allowed to work nor the amount has been refunded. Further submits that neither the petitioner was served with any notice nor any proceedings were initiated against him and arbitrarily the respondents are withholding the aforestated amount of the petitioner as that under Rule 16 of the Punjab Local Government (Auction of Collection Rights) Rules, 2003, the petitioner was obliged to deposit 2% of the Reserved Price, as earnest money in the fund of Local Government for taking part in the auction, whereas he deposited 5% of the reserved price. Further refers to Rule 2 ibid that earnest money of successful bidder can be retained as a security in successful completion of contract alongwith other dues prescribed in the agreement whereas under Rule 3 the earnest money of unsuccessful bidders has to be retained after completion of auction. Rule 4 whereof in unequivocal terms says that earnest money reserved shall be refunded to the contractor after successful completion of contract and production of a certificate from the head of Revenue Department of respective Local Government that nothing is due from the contractor and that contract has been completed successfully. The case of the petitioner, while taking at a logical conclusion attracts provisions of sub-rule (3) of Rule 16 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 he having been, though arbitrarily declared as successful contract, his amount has to be refunded.
4. Conversely, the respondents while admitting the contents of writ petition in paras 1 to 4 add that instead of 2% under the instructions of Government the security deposit was enhanced to 5% and that since the petitioner failed to deposit the earnest money within a period of three days, therefore, the earnest money was forfeited. It is admitted, however, in terms that he submitted an application for refund of the aforestated amount but the same stood forfeited.
5. Arguments heard. Record perused.
6. The parawise replies to the writ petition are evasive, which under the law are deemed to have been admitted as correct. The allegation levelled by the petitioner in the writ petition qua victimization under wrongful gain for causing wrongful loss to the petitioner having specifically been denied. Likewise, the allegation of illegal demands by the respondents have also not been denied including the non fulfilment statutory obligations by respondents which have also not been denied.
7. In view of the observation given earlier, the evasive denial of a specific plea cannot be considered as a denial in law. Rather, on the contrary, the evasive denial is deemed to be as admission on facts.
8. This petition was admitted to regular hearing on 5.5.2004. In presence of learned counsel for the nor the respondents have bothered to place on record any additional document nor have filed any formal written statement.
9. In view of the above, I am of the considered view that facts as narrated in the petition have been under the law admitted by the respondents. They have mis-interpreted Rule 16, in particular sub-rule (4) of the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 and they have forfeited the amount of Rs. 12,00,000/- without any lawful justification. This petition is therefore allowed and respondents are directed to refund the above said amount of Rs. 12,00,000/- within a period of seven days, failing which the petitioner shall also be entitled to the interest at the prevailing bank rates from the date of its deposit.
10. With these observations, this petition stands disposed of.
(R.A.) Petition disposed of.