1998 S C M R 2182
1998 S C M R 2182
[Supreme Court of Pakistan]
Present: Ajmal Mian, C.J. and Wajihuddin Ahmed, J
JAVEDAN CEMENT MEHNAT KASH UNION and another---Petitioners
versus
THE FEDERATION OF PAKISTAN and others---Respondents
Civil Petition No. 370-K of 1997, decided on 6th July, 1998.
(On appeal from the judgment dated 5-9-1997 the High Court of Sindh, Karachi, in Constitution Petition No.D-298 of 1996).
Constitution of Pakistan (1973)---
---Arts. 199 & 185(3)---Transfer of Managed Establishments Order (12 of 1978), Art. 4---Constitutional petition under Art. 199 of the Constitution before High Court---Maintainability---Transfer of shares and proprietary interests of taken-over industry by Privatization Commission and further negotiations with respondent who had given the highest bid---Validity---Petitioners in the Constitutional petition filed before the High Court, at some stage, lost their right by sitting tight at a crucial juncture and neither came up with a better offer (bid), nor otherwise agitated the issue of their entitlement in a previous proceedings before the High Court on the same subject---Such, therefore, was a simple case of acquiescence, waiver and laches rather than of any legal disability on the score of not seeking joinder in a proceedings where the parties did not initially join them---Appropriate course for the High Court was to order their joinder rather to non-suit the petitioners---High Court was not justified to non-suit an aggrieved person solely because such person did not itself come forward to be joined in the earlier set of proceedings in circumstances---High Court, however, observed that its order could not be so wide as to grant any indefinite period of time to negotiate either to the respondent or the Commission---State of Pakistan must, in no case, suffer either on account of fast eroding value of Pak Currency or on any other score---Best price for the unit in the evolved circumstances, should be ensured---Matter, if not, concluded already, be concluded forthwith and if not the Commission would be free to act according to law and in the best interest of the country---Petition for leave to appeal by the petitioners was dismissed.
Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
F.G. Ebrahim, Senior Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record for Respondents.
Date of hearing: 6th July, 1998.
ORDER
WAJHUDDIN AHMED, J. ---Petitioners, out of whom the petitioner No.1 is an employees' union and the other petitioner is the employees' management group, both of Javedan Cement Co. Ltd., preferred Constitutional Petition No.D.298 of 1996 before the High Court of Sindh. The petitioners staking a claim in the Privatisation process, state that, pursuant to workers' protest, the Government of Pakistan acceded to conclude a memorandum of agreement, dated 15-10-1991, which was signed and subscribed to by the Inter Ministerial Committee, constituted by the Prime Minister, comprising of the Federal Minister for Labour, Manpower and Overseas Pakistanis, the Minister of Interior, the Minister for Industries and the Chairman, Privatisation Commission, on the one hand and the All Pakistan State Enterprises Workers' Action Committee, representing the employees of the State-owned Industrial Units, on the other. It is package ' C' of such memorandum of agreement on which the petitioners base their claim, which, in extense, is reproduced hereunder: --
"(1) In case of employees buy-out, negotiation will be facilitated in consultation with the Supreme Council of All Pakistan State Enterprises Workers' Action Committee.
(2) Employees will be provided all opportunities to purchase a unit if they make a bid. They will also have right of negotiations on the highest bid.
(3) All bids made by the employees will have to be competitive and in accordance with bid documents.
(4). Employees will be given concessions through negotiations if they are declared successful bidders.
(5) Wherever gratuity fund is maintained as a trust, the funds may be used for investments as per rules.
(6) The savings in the Provident Funds may be utilised for bidding purposes subject to Government Rules and Regulations.
(7) A management plan (which should include a financial plan) will be submitted by the employees for any bid they make for a unit.
(8) Any unit owned by the Federal Government in FATA will avail the same facilities as available to remaining units of SOEs.
(9) The facility of group insurance for workers who opt for golden hand shake will be available for continuation provided he subscribes to the same from his own resources.
(10) Any legal requirements for the implementation of this agreement will be fulfilled by the Government.
(11) Difference if any will be resolved by mutual understanding between the Inter-Ministerial Committee and APSEWAC."
It is 'the petitioners' case the bids for privatisation of the Javedan Cement Company Limited were invited by the Privatization Commission (herein called the Commission) somewhere during the later part of the year 1991 and Dada Bhoy Investment (Pvt.) Ltd. (herein referred to as the Company) came up with an offer of Rs.300 million, at approximately Rs.51 per share, whereas the petitioners gave corresponding officer of Rs.67 million at about Rs.17 per share, both below the reference price of RS.III per share. In this situation, according to the petitioners, the Privatization of the unit came to an abrupt halt.
As against this, Dada Bhoy Investment (Pvt.) Ltd., respondent No.4 here, has pleaded that it is incorrect to say that the process stopped at such stage. On the contrary. a letter dated 24-11-1991 was addressed by the Commission to Dada Bhoy Investment (Pvt.) Ltd., intimating that the Government had decided that ' the Company was the highest bidder, they should be provided with an opportunity to raise the bid to a minimum of 90 per cent. of the reference price. A perusal of such letter shows that the Company was also cautioned that since the units was a taken-over one under the Economic Reforms Order, 1972, the previous owner had a right to match the price offered by the Company in terms of the Transfer of Managed Establishments Order, 1978, as amended by the Transfer of Management Establishments (Second Amendment) Ordinance, 1991. A period of 15 days was allowed to the Company to raise the price failing which its bid was to stand rejected. The Company, in response, seems to have addressed a letter dated 17-12-1991 revising the bid to the extent of 90 per cent, aforesaid. However, while the earnest money, in the sum of Rs.1 million, still remained with the Commission, the Commission, per letter dated 18-10-1992 without spelling out any reason rejected the bid of the Company and returned the uncashed pay order of Rs.1 million. It may, however, bear mention here that on 16-4-1992 the Transfer of Managed Establishments Order, 1978, was amended through the Transfer of Managed Establishments (Amendment) Act, 1992, the effect of which was that the original owners, etc. of the unit were no longer required to match an offer to purchase "if the highest bid was made by the employees of the managed establishment" concerned, Reverting, the Company made representation but the Commission finally rejected the same vide letter dated 25-10-1992, giving rise to Constitutional Petition No.D-948 of 1993. It was heard by a Division Bench of the High Court of Sindh on 10-8-1994. While the petitioners were not made parties, the Commission did project their rights at the hearing and the argument is reflected in the High Court judgment dated 24-8-1994 recast below:
"In reply to the petitioners' arguments, the learned counsel has submitted that Article 4 of the Transfer of Managed Establishments Order, 1978 has been substituted and radically changed by an amendment through Ordinance XV of 1991 - Transfer of Managed Establishments (Amendment) Ordinance, 1991. The substituted Article is as under:
'4. Transfer of shares and proprietary interests etc.---(1) If the Federal Government considers it necessary in the public interest to transfer the shares or proprietary interests in respect of a managed establishment acquired by it under Article 7-B of the said order, the Federal Government may through a public advertisement, invite bids for the transfer of the shares or proprietary interests.
(2) On the receipt of bids in pursuance of an invitation under clause (1), the Federal Government shall offer the transfer of the shares or proprietary interest to the persons specified in the Schedule on the highest bid so received any on such terms and conditions as it may deem fit.
(3) If the persons specified in the Schedule do not accept the offer made under clause (2), the Federal Government may transfer the same to such persons and on such terms and conditions, as it may deem fit.
(4) In case of transfer of shares or proprietary interest in respect of a managed establishment under clause (2) or clause (3), the provisions of Articles 5, 6, 7, 8, 9, 10 and 11, and the Schedule to this Order shall not apply.'
The said Ordinance was further amended by .Transfer of Managed Establishments (Amendment) Act, 1992 (Act V of 1992) by which the following proviso to Article 4 of the Order was added:
Provided that it shall not be necessary to make such an offer to the persons specified in the Schedule in case the highest bid has been made by the employees of the managed establishment.'
According to him, this amendment has changed the complexion of the Order, as apart from the original owners, other parties, including the workers of the said unit have also been allowed to make bids/offers for the purchase/transfer of the Units.
It is further argued that sub-clause (3) of section 4 clearly authorises the Government to transfer the units to such persons as it may deem fit. As such, the Government has a discretion to accept or reject the bids given by the parties. According to the learned counsel, the advertisement under reference also mention the 'workers' and as such the petitioners are not the only party and by giving them and opportunity to raise the bid, did not create' any vested rights in their favour."
The argument from the side of the Company is contextually dealt with by the High Court as under:
" He has also submitted that in the present case there was nocompetition with the workers as the amendment came subsequent to the present dispute. He has also reiterated that the said letter dated 7-12-1991 is clearly an acceptance letter and the respondent No.2 had already accepted the offer on 'as is where is basis'. "
The High Court, however, does not seem to have expressed any opinion as to the rights of the petitioners and has proceeded to grant relief to the Company on the following basis and terms:
"It is settled law that the discretion vested in the authority is to be exercised judiciously and not arbitrarily. Exercise of such discretion against the subject shall be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provision in which it occurs and shall not be merely at the whims of the authority. In the present case the respondents have not shown if the said discretion was exercised judiciously keeping in view the above principles.
In view of, the above, we allow the prayer (b) of the petitioners and direct the respondents not to put to any other auction the shares, assets and management of Javedan Cement Limited and or to open or accept any bids or enter 'into any negotiations for the said purpose with any other person except the petitioner. The petition is allowed to the above extent with no order as to costs. "
It would appear that against the judgment of the High Court the Commission preferred a petition for leave but such was dismissed. The petitioners state that they themselves sought review of the order declining the leave but that too was dismissed on the ground that the petitioners being non parties could not assail the findings. None has disclosed either the number of the leave Petition or that of the Review nor even the dates of their disposal, what to say of non-filing of any of the relevant copies. Be that as it may, the petitioners, thereafter, on 26-2-1996, preferred an independent Constitution Petition of their own before the High Court of Sindh and such, having been numbered as D-298 of 1996, finally, came up on 5-9-1997. The petitioners had therein maintained that the adverse determinations in the previous round of litigation could not be laid at their door and that their rights had to be assessed without taking recourse to the outcome thereof. The petitioner also agitated some Constitutional questions of far reaching consequence, such as the lawfulness of the formation of the Privatization Commission, of the proceedings undertaken by the Commission and the purported by-passing of the Council of Common Interest in contemplation of Articles 153 and 154 of the Constitution together with legislative and other competence pertaining to State-owned establishments finding place in Part 11 of the Federal Legislative List. The High Court took up the matter of interim relief on several occasions and, on 28-8-1996, in a situation where the learned counsel for the Commission stated that negotiations pursuant to the order dated 12-2-1996 of this Court (apparently the order declining leave) were going on with the Company but did not know whether possession of the factory was or was not being made over to the later shortly, required status quo relating to possession to be maintained till the next date viz 9-9-1996, on such date the ad interim order coming to be extended indefinitely. Reverting, in the resulting impugned order of the High Court dated 24-9-1997, the petitioners were non-suited because they lost the opportunity to defend the earlier set of proceedings. On the point was invoked the principle that conflicting decisions could not be handed down in the same controversy. As to the competence of the Privatization process, which was challenged on the ground that the Commission was constituted, sans any legislative process, through the notification dated 22-1-1991, apparently in exercise of executive authority of the Federation, reference was made by the High Court to Amin Ahmed v. Ministry of Production, Government of Pakistan. (PLD 1996 Kar. 27), opining that no specific legislation was necessary for exercise of the executive authority under Article 173(1) of the Constitution and that there was a distinction between the expression "development of industries" occurring in entry No.3 in Part Il of the Federal Legislative list and "disposition" of any property vested in the Federal Government. The decision of this Court in M/s Gadoon Textile Mills v. WAPDA, (1997 SCMR 641), holding that the words "and shall exercise supervision and control over related institutions" occurring in Article 154 of the Constitution did not imply day to day working of corporations in Part II above but had a nexus with general policy matters as to the working of such institutions, was distinguished. In any case, while the High Court recorded that there had been an Ex Post Facto approval from the Council of Common Interest in respect of the proposed sale nothing relating to such approval was brought on record.
Hearing the learned counsel, we have been apprised that, so far, nothing beyond Rupees one million has been paid by the company to the Commission. As already seen the Supreme Court order, imparting finality to the proceedings, was recorded way back on 12-2-1996 and the interim relief granted by the High Court in the present proceedings did not go beyond precluding transfer of possession, leaving the field of completion of sale wide open. It is matter of no small concern that a matter which relates back to 24-11-1991 has not yet been finalised. Such delay reflects adversely on the entire exercise. Disposing of valuable State or public property has been equated with putting up family silver to sale and is no trifling matter.
In the circumstances, while it seems to have been incorrect on the part of the High Court to non-suit an aggrieved person solely because such person did not itself come forward to be joined in the earlier set of proceedings, the fact remains that the petitioners, at some stage, lost their right, by sitting tight at a crucial juncture and neither coming up with a better offer nor otherwise agitating the issue of their entitlement. Such, therefore, is a simple case of acquiescence, waiver and laches rather than of any legal disability on the score of not seeking joinder in a proceeding where the parties did not initially join them. It would have been more appropriate, though, if the High Court, in the face of the pleas advanced before it, had itself thought fit to order their joinder. On the same score, while Articles 7, 90, 97, 153, 154 and 173(1) of the Constitution, when read with item 3 of the Part II of the Federal Legislative list may be open to other interpretations we would leave the matter at that without expressing any firm opinion, one way or the other. Even so, the concluding part of the High Court order dated 24-8-1994 in Constitutional Petition No.D-948 of 1993 could not be so wide as to grant any indefinite period of time to negotiate either to the Company or the Commission. The State of Pakistan must in no case suffer either on account of the fast eroding value of Pak currency or on any other score. The best price for the unit in the evolved circumstances should be ensured. The matter, if not concluded already, needs to be concluded forthwith and if not the Commission would be free to act according to law and in the best interests of the country. With these observations, the present petition is. dismissed but with no order as to costs.
M.B.A./J-19/S Petition dismissed.
[Supreme Court of Pakistan]
Present: Ajmal Mian, C.J. and Wajihuddin Ahmed, J
JAVEDAN CEMENT MEHNAT KASH UNION and another---Petitioners
versus
THE FEDERATION OF PAKISTAN and others---Respondents
Civil Petition No. 370-K of 1997, decided on 6th July, 1998.
(On appeal from the judgment dated 5-9-1997 the High Court of Sindh, Karachi, in Constitution Petition No.D-298 of 1996).
Constitution of Pakistan (1973)---
---Arts. 199 & 185(3)---Transfer of Managed Establishments Order (12 of 1978), Art. 4---Constitutional petition under Art. 199 of the Constitution before High Court---Maintainability---Transfer of shares and proprietary interests of taken-over industry by Privatization Commission and further negotiations with respondent who had given the highest bid---Validity---Petitioners in the Constitutional petition filed before the High Court, at some stage, lost their right by sitting tight at a crucial juncture and neither came up with a better offer (bid), nor otherwise agitated the issue of their entitlement in a previous proceedings before the High Court on the same subject---Such, therefore, was a simple case of acquiescence, waiver and laches rather than of any legal disability on the score of not seeking joinder in a proceedings where the parties did not initially join them---Appropriate course for the High Court was to order their joinder rather to non-suit the petitioners---High Court was not justified to non-suit an aggrieved person solely because such person did not itself come forward to be joined in the earlier set of proceedings in circumstances---High Court, however, observed that its order could not be so wide as to grant any indefinite period of time to negotiate either to the respondent or the Commission---State of Pakistan must, in no case, suffer either on account of fast eroding value of Pak Currency or on any other score---Best price for the unit in the evolved circumstances, should be ensured---Matter, if not, concluded already, be concluded forthwith and if not the Commission would be free to act according to law and in the best interest of the country---Petition for leave to appeal by the petitioners was dismissed.
Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
F.G. Ebrahim, Senior Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record for Respondents.
Date of hearing: 6th July, 1998.
ORDER
WAJHUDDIN AHMED, J. ---Petitioners, out of whom the petitioner No.1 is an employees' union and the other petitioner is the employees' management group, both of Javedan Cement Co. Ltd., preferred Constitutional Petition No.D.298 of 1996 before the High Court of Sindh. The petitioners staking a claim in the Privatisation process, state that, pursuant to workers' protest, the Government of Pakistan acceded to conclude a memorandum of agreement, dated 15-10-1991, which was signed and subscribed to by the Inter Ministerial Committee, constituted by the Prime Minister, comprising of the Federal Minister for Labour, Manpower and Overseas Pakistanis, the Minister of Interior, the Minister for Industries and the Chairman, Privatisation Commission, on the one hand and the All Pakistan State Enterprises Workers' Action Committee, representing the employees of the State-owned Industrial Units, on the other. It is package ' C' of such memorandum of agreement on which the petitioners base their claim, which, in extense, is reproduced hereunder: --
"(1) In case of employees buy-out, negotiation will be facilitated in consultation with the Supreme Council of All Pakistan State Enterprises Workers' Action Committee.
(2) Employees will be provided all opportunities to purchase a unit if they make a bid. They will also have right of negotiations on the highest bid.
(3) All bids made by the employees will have to be competitive and in accordance with bid documents.
(4). Employees will be given concessions through negotiations if they are declared successful bidders.
(5) Wherever gratuity fund is maintained as a trust, the funds may be used for investments as per rules.
(6) The savings in the Provident Funds may be utilised for bidding purposes subject to Government Rules and Regulations.
(7) A management plan (which should include a financial plan) will be submitted by the employees for any bid they make for a unit.
(8) Any unit owned by the Federal Government in FATA will avail the same facilities as available to remaining units of SOEs.
(9) The facility of group insurance for workers who opt for golden hand shake will be available for continuation provided he subscribes to the same from his own resources.
(10) Any legal requirements for the implementation of this agreement will be fulfilled by the Government.
(11) Difference if any will be resolved by mutual understanding between the Inter-Ministerial Committee and APSEWAC."
It is 'the petitioners' case the bids for privatisation of the Javedan Cement Company Limited were invited by the Privatization Commission (herein called the Commission) somewhere during the later part of the year 1991 and Dada Bhoy Investment (Pvt.) Ltd. (herein referred to as the Company) came up with an offer of Rs.300 million, at approximately Rs.51 per share, whereas the petitioners gave corresponding officer of Rs.67 million at about Rs.17 per share, both below the reference price of RS.III per share. In this situation, according to the petitioners, the Privatization of the unit came to an abrupt halt.
As against this, Dada Bhoy Investment (Pvt.) Ltd., respondent No.4 here, has pleaded that it is incorrect to say that the process stopped at such stage. On the contrary. a letter dated 24-11-1991 was addressed by the Commission to Dada Bhoy Investment (Pvt.) Ltd., intimating that the Government had decided that ' the Company was the highest bidder, they should be provided with an opportunity to raise the bid to a minimum of 90 per cent. of the reference price. A perusal of such letter shows that the Company was also cautioned that since the units was a taken-over one under the Economic Reforms Order, 1972, the previous owner had a right to match the price offered by the Company in terms of the Transfer of Managed Establishments Order, 1978, as amended by the Transfer of Management Establishments (Second Amendment) Ordinance, 1991. A period of 15 days was allowed to the Company to raise the price failing which its bid was to stand rejected. The Company, in response, seems to have addressed a letter dated 17-12-1991 revising the bid to the extent of 90 per cent, aforesaid. However, while the earnest money, in the sum of Rs.1 million, still remained with the Commission, the Commission, per letter dated 18-10-1992 without spelling out any reason rejected the bid of the Company and returned the uncashed pay order of Rs.1 million. It may, however, bear mention here that on 16-4-1992 the Transfer of Managed Establishments Order, 1978, was amended through the Transfer of Managed Establishments (Amendment) Act, 1992, the effect of which was that the original owners, etc. of the unit were no longer required to match an offer to purchase "if the highest bid was made by the employees of the managed establishment" concerned, Reverting, the Company made representation but the Commission finally rejected the same vide letter dated 25-10-1992, giving rise to Constitutional Petition No.D-948 of 1993. It was heard by a Division Bench of the High Court of Sindh on 10-8-1994. While the petitioners were not made parties, the Commission did project their rights at the hearing and the argument is reflected in the High Court judgment dated 24-8-1994 recast below:
"In reply to the petitioners' arguments, the learned counsel has submitted that Article 4 of the Transfer of Managed Establishments Order, 1978 has been substituted and radically changed by an amendment through Ordinance XV of 1991 - Transfer of Managed Establishments (Amendment) Ordinance, 1991. The substituted Article is as under:
'4. Transfer of shares and proprietary interests etc.---(1) If the Federal Government considers it necessary in the public interest to transfer the shares or proprietary interests in respect of a managed establishment acquired by it under Article 7-B of the said order, the Federal Government may through a public advertisement, invite bids for the transfer of the shares or proprietary interests.
(2) On the receipt of bids in pursuance of an invitation under clause (1), the Federal Government shall offer the transfer of the shares or proprietary interest to the persons specified in the Schedule on the highest bid so received any on such terms and conditions as it may deem fit.
(3) If the persons specified in the Schedule do not accept the offer made under clause (2), the Federal Government may transfer the same to such persons and on such terms and conditions, as it may deem fit.
(4) In case of transfer of shares or proprietary interest in respect of a managed establishment under clause (2) or clause (3), the provisions of Articles 5, 6, 7, 8, 9, 10 and 11, and the Schedule to this Order shall not apply.'
The said Ordinance was further amended by .Transfer of Managed Establishments (Amendment) Act, 1992 (Act V of 1992) by which the following proviso to Article 4 of the Order was added:
Provided that it shall not be necessary to make such an offer to the persons specified in the Schedule in case the highest bid has been made by the employees of the managed establishment.'
According to him, this amendment has changed the complexion of the Order, as apart from the original owners, other parties, including the workers of the said unit have also been allowed to make bids/offers for the purchase/transfer of the Units.
It is further argued that sub-clause (3) of section 4 clearly authorises the Government to transfer the units to such persons as it may deem fit. As such, the Government has a discretion to accept or reject the bids given by the parties. According to the learned counsel, the advertisement under reference also mention the 'workers' and as such the petitioners are not the only party and by giving them and opportunity to raise the bid, did not create' any vested rights in their favour."
The argument from the side of the Company is contextually dealt with by the High Court as under:
" He has also submitted that in the present case there was nocompetition with the workers as the amendment came subsequent to the present dispute. He has also reiterated that the said letter dated 7-12-1991 is clearly an acceptance letter and the respondent No.2 had already accepted the offer on 'as is where is basis'. "
The High Court, however, does not seem to have expressed any opinion as to the rights of the petitioners and has proceeded to grant relief to the Company on the following basis and terms:
"It is settled law that the discretion vested in the authority is to be exercised judiciously and not arbitrarily. Exercise of such discretion against the subject shall be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provision in which it occurs and shall not be merely at the whims of the authority. In the present case the respondents have not shown if the said discretion was exercised judiciously keeping in view the above principles.
In view of, the above, we allow the prayer (b) of the petitioners and direct the respondents not to put to any other auction the shares, assets and management of Javedan Cement Limited and or to open or accept any bids or enter 'into any negotiations for the said purpose with any other person except the petitioner. The petition is allowed to the above extent with no order as to costs. "
It would appear that against the judgment of the High Court the Commission preferred a petition for leave but such was dismissed. The petitioners state that they themselves sought review of the order declining the leave but that too was dismissed on the ground that the petitioners being non parties could not assail the findings. None has disclosed either the number of the leave Petition or that of the Review nor even the dates of their disposal, what to say of non-filing of any of the relevant copies. Be that as it may, the petitioners, thereafter, on 26-2-1996, preferred an independent Constitution Petition of their own before the High Court of Sindh and such, having been numbered as D-298 of 1996, finally, came up on 5-9-1997. The petitioners had therein maintained that the adverse determinations in the previous round of litigation could not be laid at their door and that their rights had to be assessed without taking recourse to the outcome thereof. The petitioner also agitated some Constitutional questions of far reaching consequence, such as the lawfulness of the formation of the Privatization Commission, of the proceedings undertaken by the Commission and the purported by-passing of the Council of Common Interest in contemplation of Articles 153 and 154 of the Constitution together with legislative and other competence pertaining to State-owned establishments finding place in Part 11 of the Federal Legislative List. The High Court took up the matter of interim relief on several occasions and, on 28-8-1996, in a situation where the learned counsel for the Commission stated that negotiations pursuant to the order dated 12-2-1996 of this Court (apparently the order declining leave) were going on with the Company but did not know whether possession of the factory was or was not being made over to the later shortly, required status quo relating to possession to be maintained till the next date viz 9-9-1996, on such date the ad interim order coming to be extended indefinitely. Reverting, in the resulting impugned order of the High Court dated 24-9-1997, the petitioners were non-suited because they lost the opportunity to defend the earlier set of proceedings. On the point was invoked the principle that conflicting decisions could not be handed down in the same controversy. As to the competence of the Privatization process, which was challenged on the ground that the Commission was constituted, sans any legislative process, through the notification dated 22-1-1991, apparently in exercise of executive authority of the Federation, reference was made by the High Court to Amin Ahmed v. Ministry of Production, Government of Pakistan. (PLD 1996 Kar. 27), opining that no specific legislation was necessary for exercise of the executive authority under Article 173(1) of the Constitution and that there was a distinction between the expression "development of industries" occurring in entry No.3 in Part Il of the Federal Legislative list and "disposition" of any property vested in the Federal Government. The decision of this Court in M/s Gadoon Textile Mills v. WAPDA, (1997 SCMR 641), holding that the words "and shall exercise supervision and control over related institutions" occurring in Article 154 of the Constitution did not imply day to day working of corporations in Part II above but had a nexus with general policy matters as to the working of such institutions, was distinguished. In any case, while the High Court recorded that there had been an Ex Post Facto approval from the Council of Common Interest in respect of the proposed sale nothing relating to such approval was brought on record.
Hearing the learned counsel, we have been apprised that, so far, nothing beyond Rupees one million has been paid by the company to the Commission. As already seen the Supreme Court order, imparting finality to the proceedings, was recorded way back on 12-2-1996 and the interim relief granted by the High Court in the present proceedings did not go beyond precluding transfer of possession, leaving the field of completion of sale wide open. It is matter of no small concern that a matter which relates back to 24-11-1991 has not yet been finalised. Such delay reflects adversely on the entire exercise. Disposing of valuable State or public property has been equated with putting up family silver to sale and is no trifling matter.
In the circumstances, while it seems to have been incorrect on the part of the High Court to non-suit an aggrieved person solely because such person did not itself come forward to be joined in the earlier set of proceedings, the fact remains that the petitioners, at some stage, lost their right, by sitting tight at a crucial juncture and neither coming up with a better offer nor otherwise agitating the issue of their entitlement. Such, therefore, is a simple case of acquiescence, waiver and laches rather than of any legal disability on the score of not seeking joinder in a proceeding where the parties did not initially join them. It would have been more appropriate, though, if the High Court, in the face of the pleas advanced before it, had itself thought fit to order their joinder. On the same score, while Articles 7, 90, 97, 153, 154 and 173(1) of the Constitution, when read with item 3 of the Part II of the Federal Legislative list may be open to other interpretations we would leave the matter at that without expressing any firm opinion, one way or the other. Even so, the concluding part of the High Court order dated 24-8-1994 in Constitutional Petition No.D-948 of 1993 could not be so wide as to grant any indefinite period of time to negotiate either to the Company or the Commission. The State of Pakistan must in no case suffer either on account of the fast eroding value of Pak currency or on any other score. The best price for the unit in the evolved circumstances should be ensured. The matter, if not concluded already, needs to be concluded forthwith and if not the Commission would be free to act according to law and in the best interests of the country. With these observations, the present petition is. dismissed but with no order as to costs.
M.B.A./J-19/S Petition dismissed.
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