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1981 Supreme(Goa) 9
Goa High Court
K. M. MISHRA, Ag. J. C.
The Goa Cancer Society - Appellant
Versus
Dr. Antonio F.G. Pinto - Respondents
Civil Revn. Appln. No.174 of 1980
Decided On : 23 June 1981
F. Dawania with S. Tamba, for petitioner; Coelho Pereira, for Respondent.
A government authority has the authority to reconsider its earlier decision to accept a tender, even if it has not yet formally accepted the tender.
Headnote:
CONTRACT ACT - Tender - Acceptance of - Acceptance not communicated to tenderer - Reconsideration of recommendation of Tender Committee by authority, without assigning any reasons to tenderer - Not arbitrary and illegal.
Fact of the Case:
The petitioner, a construction company, submitted a tender for the construction of a warehouse at the Mormugao Harbour. The Tender Committee recommended the petitioner's tender for acceptance, but the respondent, the Board of Trustees of the Port of Mormugao, decided to reconsider the recommendation without assigning any reasons to the petitioner.
Finding of the Court:
The court held that the respondent's decision to reconsider the recommendation of the Tender Committee was not arbitrary or illegal. The court reasoned that the respondent had not yet formally accepted the petitioner's tender and that it had the authority to reconsider its earlier decision.
Issues: Whether the respondent's decision to reconsider the recommendation of the Tender Committee was arbitrary or illegal.
Ratio Decidendi: The court held that the respondent's decision to reconsider the recommendation of the Tender Committee was not arbitrary or illegal because the respondent had not yet formally accepted the petitioner's tender and because the respondent had the authority to reconsider its earlier decision.
Final Decision: The court dismissed the petitioner's writ petition.
2. To lead to the point of decision, it will be necessary to state in brief certain facts. The respondent (plaintiff) who is M.S., F.R.C.S. was employed as Surgeon in the Goa Cancer Hospital run by the petitioner society sometime in the year 1977. For some irregularities and misconduct the respondent was first put under suspension and then his services were finally terminated. Upon termination of his services, the respondent filed Special Civil Suit No.265/78 claiming therein the following eight reliefs :-
(a) That this Honourable Court be pleased to declare the action on the part of the defendant in suspending the plaintiff from duty and conducting any enquiry into the so-called suspension as illegal and as null and void.
(b) That the defendant be ordered to pay to the plaintiff a sum of Rs. 12,550/- as arrears of salary illegally withheld by the defendant as from Jan., 1978 until 11-9-1978.
(c) For an order directing the defendant to complete and pay to the plaintiff in terms of the contract, the emoluments due on out door patients examined and on patients operated by him at the Hospital during the period from 22-5-1977 to 23-1-1978.
(d) For a declaration that the notice of termination of the plaintiffs services dated 8-9-1978 (Exhibit J-1) is illegal, null and void.
(e) For an order directing that the defendant to pay damages to the tune of Rs. 16,560/- for illegal termination of the plaintiffs services.
(f) For an order directing the defendant to pay to the plaintiff damages to the tune of Rs. 1,50,000/-.
(g) For such other and further reliefs as the circumstances of the case may require.
(h) For costs of this suit.
3. The petitioner prayed to the Court that issue No.6 touching jurisdiction be taken up as preliminary issue. The reason for not acceding to the above request of the petitioner is contained in para. 6 of the Order of the trial Court which may be extracted as under :-
"6. It is clear, therefore, that if the preliminary objection raised by the defendants can be decided based on law only and not on law and fact, this Court can decide that issue as a preliminary issue. However, the Court finds that there are many questions of fact involved in this case which will have to be proved before the Court passes an order with regard to the contention raised by the defendant that this Court has no jurisdiction to entertain this suit. Besides it is found that many of the prayers included in the plaint are clearly with the jurisdiction of this court, and, as such at the most it could be said that some of the prayers could not be decided by this Court for want of jurisdiction but it would not affect the suit. Therefore, the prayer of the defendants to discuss the issue of jurisdiction as a preliminary issue is not maintainable and hence it is to be rejected. The defendants shall produce, the list of their witnesses if any on the......".
4. Mr. F. Damania, learned advocate for the petitioner has vehemently contended that the learned trial Judge has committed a serious error of jurisdiction inasmuch as he has failed to see that if the trial takes place the parties had to unnecessary go through the whole gamut of leading evidence when the pleadings prima facie indicate that the Civil Court has no jurisdiction to try the suit. Issue No.6 is based only on law and for its determination no amount of evidence is necessary. The interest of justice require that such issue should be determined in the first instance before venturing upon the other issues involved in the suit.
5. The contention of Shri Coelho Pereira, learned advocate, for the respondent is that the dispute raised by the respondent in the suit is not beyond the juri
