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1986 Supreme(Guj) 9
Gujarat High Court
Judgename :A.P.RAVANI
CHITRA PUBLICITY CO. - Appellant
Versus
MUNICIPAL CORPORATION AHMEDABAD - Respondent
APPEAL FROM ORDER 423 of 1985
Decided On : 01/15/1986
Headnote:
Bombay Provincial Municipal Corporations Act ,1949 -Section 74 ,79 (a) and (b) - Plaintiff filed suit being Civil Suit No. 2371 of in City Civil Court inter alia praying that Resolution dated passed by Municipal Corporation to declared illegal and void - By this Resolution the Corporation resolved to reduce the period of the proposed contract from 5 years to 1 year - Appellant-plaintiff appeal to be a firm doing business in advertising and publicity - In response to the advertisement given by the respondent-Municipal authorities the appellant filled in the tender for work of fixing poles and putting sign boards and kiosk and for putting dust-bins or metal receptacles at a certain height of the poles - Tenders here invited for different zones in the Corporation area - Municipal Commissioner it is specifically stated in the subject heading itself that proposal was to pass resolution subject to the approval of the Municipal Corporation - Thereafter the Municipal Corporation passed Resolution on and resolved that as plaintiff had not executed the terms and conditions of the tender. the period of five years be reduced to one year - Corporation thus resolved that at appropriate place in the Standing Committee resolution instead of five years one year be substituted According General Board modified the resolution passed by Standing Committee and gave its approval - Plaintiff had submitted four draft agreements typed and/or hand-written on stamp papers It also appears that these papers of draft agreements were signed by the plaintiff - It is undisputed posittion that the draft agreement has not been signed by Commissioner on behalf of the Municipal Corporation - There is nothing to show that the Commissioner had even approved the draft - It is contended that Estate Officer has signed the same – Held, Provisions of sec. 74 and Chapter are not attracted at all cannot he accepted - By entering into the transaction with the plaintiff the Municipal Corporation is disposing of its property and therefore provisions of sec. 79 of the Act are attracted - When the property of the Municipal Corporation is being disposed of some contract is required to be entered into and literal meaning to provisions of Rule 1 falling in Chapter V cannot be given - If one reads Rule 2 of Chapter V it becomes clear that in certain cases Commissioner is required to call for the tender and then follow the provisions of sec. 73 also - Commissioner and Standing Committee should have been presumed to have done things which were within their powers and authority has also no merit - It has already been observed hereinabove that the Standing Committee and the Municipal Commissioner have no authority to enter into such contract - Even assuming for a moment that they have any such authority or power even then both these authorities have made it clear right from the beginning that the contract shall be entered into only after the approval of the Corporation is obtained - This fact has also got to be taken into consideration - Both these authorities have made it abundantly clear that their action was subject to the approval of the General Board - General Board has not approved the proposal of Standing Committee for entering into contract for five years it cannot be said that principle of equity would come into play - No principle of equity says that such material facts be ignored and a statutory corporation be foisted with a contract though not executed as required under the Act and the Rule - Appeal dismissed
( 1 ) HAVING been forced to get out unceremoniously from one gate Special Civil Application in High Court) the appellant herein. a firm dealing in publicity lousiness. has knocked another gate (Civil Suit in City Civil Court) and shorn of technical niceties. In substance it prays whether the defendant-Corporation is without or not permit me to be its guest that is tn say. permit to perform the alleged contract appeals that the defendant-Corporation would probably be not unhappy if the Court grants permission but of its own it does not seem to be willing to take this decision. In this situation should the Court help the plaintiff ?.
( 2 ) THE appellant-original plaintiff filed suit being Civil Suit No. 2371 of 1985 in the City Civil Court Ahmedabad inter alia praying that Resolution dated 29/06/1984 passed by the Municipal Corporation to declared illegal and void. By this Resolution the Corporation resolved to reduce the period of the proposed contract from 5 years to 1 year. The appellant-plaintiff appeal to be a firm doing business in advertising and publicity. In response to the advertisement given by the respondent-Municipal authorities the appellant filled in the tender for the work of fixing poles and putting sign boards and kiosk and for putting dust-bins or metal receptacles at a certain height of the poles. The tenders here invited for different zones in the Corporation area. As per the letter dated 30-7-1983 (Mark 3/12) written by the Municipal Commissioner the Standing Committee passed a resolution dated 28-9-1983 (Mark 3/13 and resolved to accept the tender subject to the approval of the General Board of the Corporation in Gujarat the relevant part reads as follows:
( 3 ) EVEN in the letter written by the Municipal Commissioner it is specifically stated in the subject heading itself that the proposal was to pass resolution subject to the approval of the Municipal Corporation. Thereafter the Municipal Corporation passed Resolution on 29/06/1984 and resolved that as the plaintiff had not executed the terms and conditions of the tender. the period of five years be reduced to one year. The Corporation thus resolved that at appropriate place in the Standing Committee resolution instead of five years one year be substituted According. the General Board modified the resolution passed by the Standing Committee and gave its approval.
( 4 ) MEANWHILE it appears that the plaintiff had submitted four draft agreements typed and/or hand-written on stamp papers It also appears that these papers of draft agreements were signed by the plaintiff. It is undisputed posittion that the draft agreement has not been signed by the Commissioner on behalf of the Municipal Corporation. There is nothing to show that the Commissioner had even approved the draft. It is contended that the Estate Officer has signed the same. However the Estate Officer is not empowered to sign contract on behalf of the Municipal Corporation and therefore it cannot be said that the Estate Officer has signed the same on behalf of the Municipal Corporation or the Commissioner. Thus the fact remains that the Commissioner who is the competent authority to sign the contract on behalf of the Corporation has not signed the same.
( 5 ) BEFORE filing the suit the plaintiffs had filed Special Civil Application No. 3571 of 1984 in this High Court. The petition was admitted and ad-interim relief was vacated the appellant-plaintiff withdrew the petition its resolution (Coram: N. H. Bhatt J. as he then was) But later on when by a speaking order passed by me the ad-interim relief was vacated the appellant plaintiff withdrew the petition and thereafter filed the suit with a prayer that the Resolution dated 29/06/1984 passed by the General Board of the Municipal Corporation modifying Standing Committee resolution so as to reduce the period of contract from 5 (five) years to 1 (one) year be declared illegal and void and alternatively the plaintiff be awarded damages to
