M/s. Hossain Ahmed Vs. M/s. H. D Hossain & Brothers, 32 DLR (AD) (1980) 223

Case No: Civil Appeal No. 148 of 1979

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Syed Ishtiaq Ahmed,Mr. K. A. Bakr,,

Citation: 32 DLR (AD) (1980) 223

Case Year: 1980

Appellant: M/s. Hossain Ahmed

Respondent: M/s. H. D Hossain and Brothers

Subject: Declaration of Title, Injunction,

Delivery Date: 1979-11-28

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ
Ruhul Islam, J
K.M. Subhan, J
Badrul Haider Chowdhury, J
 
M/s. Hossain Ahmed represented by its pro­prietor Hossain Ah­med
……………… ...Appellant
Vs.
M/s. H. D Hossain & Brothers represented by its proprietor Md. Delwar Hossain and others
…………. ….. Respondents
 
Judgment
Nov. 28, 1979.
 
The Specific Relief Act, 1877 (Act I of 1877)
Sections 42,54,56(d)(f)
To obtain an order of injunction the plaintiff aught to assert what is his legal character and what is his right as to the contract for which the tenders were invited and the conditions on which he participated in the bid……….(8)
The suit being a declaratory one the plaintiff is to satisfy that such declaration should be made in his favour by virtue of the right accrued in his favour and he is entitled to injunction…………..(8)
No injunction can be granted to interfere with the public duties of any Department of the Government or, for that matter to prevent the breach of a con­tract the performance of which would not be specifically enforced………….(8)
By submitting a tender the tenderer is not invested with any legal right nor the quotation by the lowest bidder entitled him to the right of a contract because such contract is always subject to acceptance and approval of the authority concerned and invariably the tender form contains stipulations that the authority reserves the right to reject any bid without assigning any reason and is not bound to ac­cept the lowest bid…………..(10)
 
Cases Referred to-
Ramphal Vs. State of Bihar, AIR 1954 (Pat.) 235; K. N. Guruswami Vs. State of Mysore, PLD 1956 (S.C.—India), 53.
 
Lawyers Involved:
Kh. Mahbubuddin Ahmed, Advocate, instruc­ted by Md. Shafiqur Rahman Advocate-on' Record—For the Appellant.
Syed Ishtiaq Ahmed, senior Advocate, instructed by Md. Aftab Hossain, Advocate-on- Record—For Respondent Nos. 1 & 2.
K.A. Bakr, Attorney-General, A.W. Bhuiyan, Asstt. Attorney-General, instructed by B. Hossain, Advocate-on-Record—For Respondent No. 6.
Not Represented—For Respondent Nos. 3-5.
 
Civil Appeal No. 148 of 1979.
(From the Judgment and order dated the 15th Octo­ber 1979 passed by the High Court Division in Civil Revision No. 1195 of 1979).
 
JUDGMENT
 
Badrul Haider Chowdhury, J.
 
This appeal is directed against the order of the High Court Division in Civil Revision No. 1195 of 1979.
 
2. Defendants are the appellants. The Divisional Tender Committee with the Addi­tional Divisional Commissioner, as the Chair­man invited tenders for appointment of the labour and transport contractor for Dewanhat and Halishahar C.S.D. for the year 1979-80. The Tender Committee accepted the tender of the appellant for both Dewanhat and Hali­shahar C. S. D. This was challenged by the respondents in the civil court. Three suits were filed by different tenderers being O. S. No. 179 of 1979 and O.S. No. 164 of 1979 both in the Court of 2nd Munsif, Chittagong and third suit being O.S. No. 119 of 1979 was instituted in the 1st Court of Munsif, Chi­ttagong. In all the suits prayer for declaration was made that the acceptance of the tender of the appellant was illegal and without ju­risdiction. The present appeal arises out of the Suit No. 179 of 1979. In the meantime this Court in dismissing Civil Petition for Special Leave to Appeal No. 273 of 1979 arising out of O.S. NO. 164 of 1979 observed:—
 
“Mr. Serajul Huq, the learned Advo­cate appearing for the petitioners argued that the instructions which have been given for the guidance of Tender Com­mittee were not complied with, as such, plaintiffs could legitimately challenge the legality of the acceptance of the invalid tender of defendant No. 5 and pray for injunction. The argument is not tenable. Had there been any breach of the rule or regulation or any instruc­tion having statutory force, the plain­tiffs could very well ask for a decree, with the appropriate declaration but filing of a suit on the facts of this case for declaration that the acceptance of the tender of their rival was illegal is not by itself a sufficient ground for maintenance of the suit and such a suit would not entitle the plaintiffs for claiming injunction, inasmuch as, nei­ther any right accrued to them nor any right of theirs require protection. Not­hing inheres in them yet because no deal was concluded so far they are concerned for non observance of the regulation. Their remedy, if any, is for damages if they can make out a case for damages, bur the prayer for injunc­tion was erroneous inasmuch as no right of theirs was threatened."
 
3. In the present case arising out of the Suit No. 179 of 1979 the learned Munsif by his order dated 1.8.79 directed the parties to maintain status quo. As against the order an appeal being Misc. Appeal No 366 of 1979 was filed before the district judge. The learned District Judge by his order dated 21.9.79 stayed the operation of the ad interim order of the learned Munsif till the disposal of the appeal. As against the order the plaintiff moved the High Court Division and obtained Rule in Civil Revision No. 1195 of 1979. The High Court Division stayed the operation of the order of the learned District Judge passed in the afore­said Miscellaneous Appeal No, 366 of 1979. This order was challenged before this Court and leave was granted on the terms whether in view of sections 24, 54 and 56 of the Specific Relief Act the plaintiff respondents were entitled to any relief by way of interlocutory injunction in their suits and whether the High Court Division was correct in exercising its jurisdiction in granting stay of the operation of the order passed by the learned District Judge which had effect of injunction the petitioner and the respondents 3-5 from per­forming their contractual obligations.
 
4. Khondker Mahbuddin Ahmed, the learned Counsel appearing for the appellant canvassed that there being no violation of any statute or rule having force of law and there being no concluded contract between the Go­vernment and the respondents 1 and 2 creating any right in their favour the High Court Division was in error in granting stay which had the effect of injunction the petitioner per­forming a right under concluded contract Mr. Ahmed contended that in view of the provision of the Specific Relief Act, particularly sections 54 and 56, the respondents 1 and 2 were not entitled to any relief by way of interlocutory injunction and as such the order of stay is not sustainable in law, Mr. Ahmed submitted that in the case of Mr. Nurul Islam Vs. Go­vernment of Bangladesh (Civil Petition for Special Leave to Appeal No. 144 of 1976) this Court had expressed the view that the status quo had the effect of injunction. The learned Counsel submitted that the decision of the learned Munsif was erroneous and the learned District Judge had rightly stayed that opera­tion of order whereas the High Court Division while issuing the Rule had fallen into an error by granting stay of the operation of the order of the District Judge. Mr. Ahmed forcefully argued that the plaintiffs' suits are not main­tainable either under the Specific Relief Act or under section 9 of the Code of Civil Procedure.
 
5. Syed Ishtiaq Ahmed, the learned Coun­sel appearing for the respondents, submitted that the discretion exercised by the High Court Division should not be interfered with and the practice of this Court is not to interfere in such a matter. The learned Counsel frankly conceded that the preponderance of view of the authorities is not in favour of granting injunction in such a matter but he vigorously contended that in an age when all walks of life are being regulated by the state, this Court should consider as to how far judicial control is necessary for the perseverance of the non legal rights of the citizens. The learned Counsel quoted from text books profusely showing that whenever there had been a breach of procedure the modern view of the judiciary is to interfere and put the parties right on the rail so that the proce­dural irregularities do not confer any unwar­ranted benefit to any party. In other words, it is contended that wherever a procedure is laid down the parties must observe the procedure otherwise the action will be ultra vires. Reliance was placed on the dictum of Justice frank-furter.
 
6. The learned Attorney-General appear­ing for the respondents 3-6 pointed out that section 54 speaks about a breach "of an obli­gation existing in favour of the applicant whether expressly or by implication". It is contended that no obligation existed in favour of the applicant at all and foundation for the exercise of jurisdiction granting injunction under section 54 of the Specific Relief Act has not been made out by the facts and circums­tances of the case.
 
7. Lastly, it is submitted that the view taken in Civil Petition for Special Leave to Appeal No. 273 of 1979 as quoted above, needs review and the said observation fully applicable to this case.
 
8. Plaintiffs had filed the suit for a declaration that the acceptance of tender in favour of the appellant was illegal. The plaintiffs could not show as to which condi­tion in the tender form had been expressly violated nor has it been pointed out that there had been any breach of any statutory condition. The suit was presently framed under section 42 of the Specific Relief Act which speaks of a person "entitled to any legal character or any right as to any pro­perty", the plaintiff ought to assert what was the legal character or what was his right as to the contract for which the tenders were invited. The suit being a declaratory suit, it was incumbent upon the plaintiffs to satisfy the Court that such declaration should be made in their favour and they are entitled to an injunction. Perpetual injunction is granted as provided under section 54. It lays down that an injunction may be granted to prevent the breach of an obligation in favour of the app­licant, whether expressly or by implication pro­vided there exists no measure for ascertaining the actual damage likely to be caused by the threat of the defendants and where such invasion or threat is such that pecuniary compensa­tion would not afford adequate relief. In the given facts of the case tender was invited for appointment of a labour transport contractor for the C.S. Godowns for the year in question. Mr. Ishtiaq Ahmed could not put his case into the four corners of any of the illustrations given under section 54 for granting injunction. On the face of it section 56, clauses (d) and (f) provide that no injunction can be granted to interfere with the public duties of any Department of the Government or, for that matter to prevent the breach of a con­tract the performance of which would not be specifically enforced. Section 5 of the Contra­ct Act lays down that the proposal may be revoked at any time before the communica­tion of its acceptance is complete as against the proposer but not afterwards. Here the Tender Committee had invited offers and the tenderers are the proposers. It is well settled that such proposal may be revoked at any time before its acceptance. The respondents' tenders were not accepted. In other words, proposal made by them for supplying the lab­our and transport was not accepted. There­fore, no jural relationship was created bet­ween the parties which would have entitled them for claiming any right. Mr. Ishtiaq Ahmed relied heavily on the decisions of the cases which were given in the writ juris­diction in the nature of mandamus because the authority had not followed the proced­ure and therefore these irregularities did not go unchallenged. Two cases from the Indian jurisdiction may be referred to. In the case of Ramphal Vs. State of Bihar, AIR 1954 (Pat) 235 tender was accepted and the deal was concluded but the District Magistrate cancel­led the contract and gave the contract to a person who did not bid at all. It was held that this was illegal and the District Magistrate was directed by a writ of mandamus for re-tendering. The Court granted writ because the prescribed procedure for the exercise of power was not followed and therefore the action was ultra vires. In the case of K N. Guruswami Vs. State of Mysore, reported in PLD 1956 (S.C.) (India.) 53 the Supreme Court considered the question whether the appellant's claim for a writ of mandamus was tenable. The appellant was the highest bidder and his bid was accepted for the sale of liquor. The 4th respondent did not bid in the auction but went to Excise Commissioner behind the appellant's back and made a higher bid. The Excise Commissioner cancelled the sale in favour of the appellant and directed the Deputy Commissioner to accept the offer made by the 4th respondent without making any notification. The appellant asked for a mandamus to confirm his right to the licence for 1953-54 and for cancellation of the con­tract of the 4th respondent. It was held that-
 
"The Excise Commissioner exercised his authority with a little irregularity because the matter did not reach him through the proper channel but that would not call for interference by way of a writ. The substance of the thing was there and as the High Court was not a Court of appeal it could not have been called upon to correct a mere technical error in the exercise of a ju­risdiction which was otherwise valid. The Excise Commissioner not being a Court of law whose seisin was not dependent upon the filing of a regular appeal. The cancellation was proper and as the appellant obtained no right to the licence by the mere fact that the contract had been knocked down in his favour (the acceptance being sub­ject to sanction) the appellant's relief for a mandamus to confirm his right to the licence for 1953-54 could not be granted."
 
9. In that case the Court also disapproved the way the contract was given to the 4th res pendent but did not interfere on the ground that the Excise order for this contract 1953-54 expires earlier in June and the writ there­fore would be ineffective.
 
10. The upshot of the discussions shows that by submitting a tender the tenderer is not invested with any legal right nor the quotation by the lowest bidder entitled him to the right of a contract because such contract is always subject to acceptance and approval of the authority concerned and invariably the tender form contains stipulations that the authority reserves the right to reject any bid without assigning any reason and is not bound to ac­cept the lowest bid. Had it been the case that the tender was accepted in violation of a condition which has been mentioned in the tender form, then an argument could be ad­vanced for seeking the protection of the inchoate right of the tenderer. But that is not the case here. In this suit the only ground was that the plaintiff was the lowest tenderer and his case was that the acceptance of the tender of the defendant-appellant was illegal. As noticed, such a suit could not be framed either under section 42 or under any other law far less to seek a preventive relief by way of injunction restraining the Tender Commit­tee from concluding the contract with the third party and giving effect to the decision.
 
11. In this view of the matter it is held that the learned District Judge had rightly stayed operation of the order of injunction granted by the Munsif. The learned Single Judge of the High Court Division while issuing the Rule had exercised the jurisdiction with material irregularity by staying the operation of the order of the District Judge. Therefore, the High Court Division's order can not be sustained.
 
In the result, therefore, this appeal 'is all­owed with cost and the order of the High Court Division in staying the operation of the order of the District Judge is set aside.
 
Ed.