P L D 1957 (W (PLP)

KAIKAUS, J.‑

The Corporation of City of Lahore (here inafter called the Corporation) invited tenders for a contract for removal of carcasses of animals within the area of the Corporation. The tenders were submitted by 10 a. m. on the 6th of April 1957 along with a deposit of Rs.

100. The tenders were opened at 12‑15 p. m. and the tender of Ghulam Mohy ud‑Din, who is petitioner in Writ Petition No. 536 of 1957, for Rs. 15,285 was accepted by the Chief Executive Officer. Later, an agreement was executed in pursuance of the tender and Ghulam Mohy‑ud‑Din paid the whole of the sum of Rs. 15,285 to the Corporation. Muhammad Din petitioner in Writ Petition No. 664 of 1957 who had submitted a tender for Rs. 14,100 appealed to the Commissioner against the order of the Chief Executive Officer of the Corporation by which the tender has been accepted on the ground that the tender put in by Ghulam Mohy‑ud‑Din had been submitted after 10 a. m. and should not have been considered. This contention found favour with the Commissioner, Lahore Division, who accepted the appeal and directed that fresh tenders be invited. At this, Ghulam Mohy‑ud‑Din put in Writ Petition No. 536 of 1957 with a prayer that the order of the Commissioner be set aside and the Chief Executive Officer be prevented from inviting fresh tenders, while Muhammad Din filed Writ Petition No. 664 of 1957, conten ding that his tender of Rs. 14,100 was the highest of the tenders which were submitted by 10 a. m. and praying that the Corporation be directed to accept his tender and to allow him to work as a contractor. This judgment will dispose of both the writ petitions. The case for Ghulam Mohy‑ud‑Din is that he had in fact submitted a tender before 10 a. m. on the 6th of April 1957 and the order of the Commissioner is, therefore, based on wrong data, but even if it be accepted that he had submitted his tender after 10 a. m. that fact could not debar the Chief Executive Officer of the Corporation from accepting his tender and entering into a contract with him. As the con tract had been executed and completed in all respects it could not have been affected by any order of the Commis sioner passed in appeal. He challenges the jurisdiction of the Commissioner to entertain an appeal. This last contention is in fact his main ground of attack. The case for Muhammad Din is that the tenders were to be put in a wooden box kept outside the Corporation Office till 10 a.m. At 10 a.m. the box was sealed and removed. After it had been removed, he and the other tenderers began talking about the amounts which they had offered. Muhammad Latif, father of Ghulam Mohy‑ud‑Din, had submitted a tender for Rs 13,279 and when he came to know on overhearing the talk that tenders of, a higher amount had been made, he manipulated to get a tender form and having filled it in the name of his son, that is, Ghulam Mohy‑ud‑Din, for an amount of Rs, 15,285, succeeded in having the tender form accepted by the office of the Medical Officer of Health 42 minutes after the scheduled time. The tenders were opened in the presence of the Chief Accountant and the Medical Officer of Health and the tender of Muhammad Din was found to be the highest. The Chief Accountant of the Corporation wanted that the tender of Ghulam Mohy‑ud‑Din should also be taken into consideration as it had been submitted before the tenders were open. He (Muhammad Din) objected. The Medical Officer of Health can not agreeable to accepting this tender. The matter was referred to the Purchase Board who recommended acceptance of Ghulam Mohy‑ud‑Din's tender and the Chief Executive Officer agreed to the recom mendation. At this he filed an appeal to the Commissioner. He contends that the Commissioner was entitled to hear the appeal and to set aside the order. So far as the question of fact is concerned, we have no hesitation in accepting the allegation of Muhammad Din that the tender of Ghulam Mohy‑ud‑Din had been submitted at 10‑42 a.m. There is little doubt that the usual procedure in the Corporation was that tenders were put in a wooden box placed outside the office of the Corporation which was sealed and removed at the appointed hour, and that this procedure was observed in this case. Para 3 of the petition of Muhammad Din runs :‑ "That at 10 a. m. the tender box was sealed and removed to the office room of the Medical Officer of Health." This is supported by the affidavit of Muhammad Din. The reply to this para filed on behalf of Ghulam Mohy‑ud‑Din is the following :‑‑‑ "That as regards paragraph 3, it is submitted that the answering respondent's tender had been duly entertained by the Corporation." It will be observed that the allegation in para. 3 of petition has not been denied. The Corporation too has accepted this para. to be correct. Learned counsel for Ghulam Mohy‑ud‑Din during his argument did not at first concede the allegation in para. 3 to be correct, but later agreed and then again retracted his concession and objected to its correctness. That only shows it was difficult for him to take up a clear position. Details of the submission of tender by Ghulam Mohy‑ud‑Din may here be stated. Ghulam Mohy‑ud‑Din had submitted a tender at 10‑42 a. m, to the Head Clerk of the office of the Medical Health Officer and on the envelope there is an endorsement by the Head Clerk (Tahir Husain) that it had been submitted at 10‑42 a. m. When the tenders were opened at 12‑15 p. m. by the Medical Officer of Health and Chief Accountant, the Chief Accountant too made an endorsement (on the tender form) that the tender was received at 10‑42 a. m. There was a dispute between these two officers as to whether this tender should be accepted or not. The Medical Officer of Health did not want to consider this tender, because according to an order of the previous Chief Executive Officer of the Corporation any tender submitted after time was to be kept out of consideration. The Chief Accountant of the Corporation, however, insisted that this order has been superseded by the order of the present Administrator of the Corporation. The matter then went, as already stated, to the Purchase Board and with the approval of the Administrator (who is also a Chief Executive Officer) this tender was considered and accepted. There is not the slightest reason to discredit tire endorsements on the envelope and tire tender form. It is not denied that there was a dispute as to whether this tender which was submitted after time should be accepted or not. Ghulam Mohy‑ud‑Din has made a statement in our presence that he had not put the tender in the box; but had submitted it to a clerk of the Medical Officer of Health. All these facts leave not the slightest doubt that the tender was submitted at 10‑42 a.m. The point really did not need much discussion. We have dealt with it at some length because we intend taking proceedings against Ghulam Mohy‑ud‑Din who has made a clearly false statement in support of his petition. As we reject the plea that Ghulam Mohy‑ud‑Din sub mitted his tender before 10 a. m the main question for consideration in the petition is only whether the Commissioner had any power under section 372 of the Corporation of City of Lahore Act to hear an appeal against the acceptance of a tender by the Chief Executive Officer. Section 372 runs :‑ "(1) If any person aggrieved by any order passed under this Act or under any rule or by‑law made thereunder does not receive the redress to which he considered himself entitled, he may appeal to any municipal officer who has been appointed by the Chief Executive Officer to hear such appeals, or failing such appointment, to the Chief Executive Officer. (2) Any order passed in appeal by any Municipal Officer, other than the Chief Executive Officer, shall be subject to revision by the Chief Executive Officer. (3) If the original order has been passed by the Chief Executive Officer himself, the appeal shall lie to the Commissioner". It will be observed that by virtue of this section an appeal lies against an "order under the Act" and it is to be filed by a person who is aggrieved and who considers himself entitled to some redress. The appeal had in this case been filed, as already stated, against the acceptance of tender by the Chief Executive Officer (the Administrator is also the Chief Execu tive Officer). Is the acceptance of tender an "order under the Act ? " The word "order" in the sense in which it is used her means a mandate, a command, or a direction. It is issued by a person who has real or assumed authority to give a direction. It will be an effective order if the authority is support ed by law and ineffective otherwise. It is a command to do an act or to refrain from the doing of an act, and in the case of a valid and effective order it is a command which the law protects so that to its disobedience a penalty is attached. True, an order may sometimes be in a declaratory form, but the ultimate effect must be either to direct the doing of an act or to prevent the doing of an act. An acceptance of tender by the Chief Executive Officer is merely the acceptance of an offer, the outcome of which acceptance is an agreement. It is an act of the Chief Executive Officer just like that of any' private person who enters into a contract. The activities of the Corporation of the City of Lahore, it may be stated, fall into two categories. In the first category are its acts in the capacity of a juristic entity. By section 7 of the Corporation of City of Lahore Act, it has been constituted a juristic person or to use the technical expression it has been incorporated. The result of this incorporation is that it can act as any natural legal person can act. It can enter into contracts, it can effect transfers and it can sue and be sued. In the second category are the functions of the Corporation in the exercise of powers which are vested in it for public purpose, powers which primarily belong to the Government itself and stand delegated to a municipal corporation. Powers of this charac ter are its authority to permit or not to permit a building, to licence the places used for dangerous business, to prohibit the keeping of brothels in any particular area, to prevent encroachment in streets, to lay down new streets, and so on, So far as the acts of a corporation in its capacity as a juristic person are concerned, they are not in the nature of orders. When it sells or purchases property, it passes no order any more than a natural legal person who sells or purchases property passes an order. Same is the case with its contracts and the legal proceedings which it takes. When it files a suit, it can hardly be contended that it passes an order. A corporation, when it, acts as a juristic person, does not issue any command or direction which is to be obeyed and to the disobedience of which some penalty attaches. For the purposes of interpreting the word "order" help can also be derived from the words which follow it, i.e., "under the Act". Reading the whole phrase "Order under the Act", can it be said that an agreement entered into by the Chief Executive Officer by any person is an "order under the Act" ? These words envisage a specific provision in the Corporation Act enabling the Chief Executive Officer to pass a particular order. There is no provision in the Act enabling the Chief Executive Officer to pass an order accepting a tender. All that Act says is that the Corporation shall be a body corporate and shall be entitled to enter into contracts. The Chief Executive Officer exercises only a delegated authority of the Corporation (delegated by the Act) for the purpose of enter ing into contracts. Another argument in favour of the view we take in the absence of any reference, in the provision in the Corporation Act relating to contracts, of any control by the Commissioner l or other authority. When the Act says the Corporation can enter into a contract, it should mean that it has by itself authority to enter into a contract. There is no condition imposed that this capacity to enter into a contract is subject to the control of the Commissioner or any other authority. Similarly, when section 59 provides that the Chief Executive Officer can sell the movable property of the Corporation of the value of Rs. 500 or less, it means that he can sell it without the approval of any other person. The section specifically mentions the authorities whose approval or sanction is needed and this lends strong support to the argument that the power which the Chief Executive Officer possesses to sell the pro perty of the Corporation is subject only to the limitations mentioned in this section. Also there are in the Corporation Act specific provisions providing strict formalities for the validity of contracts entered into on behalf of the Corporation. The contract has to be in writing. It has to be executed by the Chief Executive Officer. Had it been the intention that the contract would be subject to the approval of the Commis sioner that would have been expressly provided. It is also in this connection not irrelevant to consider the power that the Provincial Government possesses in respect of the proceedings of the Corporation. Section 392, which deals with its powers, runs:‑ "(1) If the Provincial Government or Commissioner are of opinion that the execution of any resolution or order of the corporation or of any other municipal authority or officer, subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation is not in conformity with law or with the rules or by‑laws made thereunder, or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons or is likely to cause waste or damage of municipal funds the Provincial Government or Commissioner may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act. (2) A copy of such order of the Provincial Government or Commissioner shall thereupon be sent to the Corporation of the Government, or Commissioner. (3) The Corporation may, notwithstanding anything con tained in. this Act or the rules or by‑laws made thereunder take the matter into consideration. (4) If the Corporation after having taken the matter into consideration, are of opinion that the resolution, order or act is not in contravention of or in excess of the powers conferred by this Act, or any other law for the time being in force, or the execution of the resolution or the doing of the act is not likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of the persons or is not likely to cause waste or damage to municipal funds, the Corporation shall pays a resolution accordingly and shall send a copy of the said resolution together with a copy of the proceedings Irritating to the said resolution to the Provincial Government for Commissioner. (5) When the Provincial Government or Commissioner have considered the resolution passed by the Corporation and the proceedings relating to the said resolution, the Provincial Government or Commissioner may either cancel, modify or confirm the order passed by them under subsection (1) or take such other action in respect of the matter as may in the opinion of the Provincial Government or Commissioner be just or expedient having regard to all the circumstances of the case." By virtue of this section, the Provincial Government is entitled to suspend the operation of resolutions of the Corporation. Under the corresponding section 235 of the Punjab Municipal Act, there is a similar power granted to the Provincial Government in respect of Municipal Committee, and there is authority under that section for the proposition' that this empowers the Provincial Government only suspend the execution of the resolution and not the resolution itself. Once a resolution has been acted upon, the Provincial Government is powerless to interfere. Reference in this connection may be made to Muhammad Shafi v. Sialkot Municipality and another (A I R 1940 Lah. 451) wherein the facts were that permission to build had been‑ granted by the Municipal Committee and a building had actually been raised by the person concerned. The Deputy Commissioner later suspended the resolution and it was held that suspension of the resolu tion was not competent and suspension of the execution of the resolution was meaningless because the resolution had already been executed. Under section 392 of the Corpora tion of the City of Lahore Act, therefore, there would be no authority in the Provincial Government to interfere in a case where an agreement had been executed by the Chief Executive Officer. The ultimate authority in the case of Municipal Corporation is the Provincial Government and it is difficult to assume that the power which the Provincial Government itself did not possess was intended to be granted to the Commissioner. It will also be observed that section 392‑ classifies the proceedings of the Corporation into 'orders', 'resolutions' and 'acts'. Section 372, which provides for appeals, refers only to orders. The contention raised on behalf of Muhammad Din would give a right of appeal against every act of the Corporation. If the intention was that every act of the Chief Executive Officer was open to appeal one would expect the word "act" to be used in section 372 instead of the word " order ". If the interpretation which has been contended for before us by learned counsel for Muhammad Din were accepted, then there will be so much interference by the appellate authority in the working of the Corporation that it would be almost impossible to carry on the administration of the Corporation. If the Corporation purchases, for instance, some stationery or a piece of furniture, an appeal would lie to the Commissioner and he will be able to set aside the contract of purchase of stationery or furniture. Confronted with the situation that it is very difficult to call an agreement or the acceptance of an offer or the execution of a contract an order, an alternative argument has been put forward by learned counsel for Muhammad Din that although an appeal may not lie against an acceptance of tender it would lie against the order by which the acceptance was preceded saying, "Let this tender be accepted", or "I will accept the tender". In the case before us there was a recommendation by the Purchase Board that the tender of Ghulam Mohy‑ud‑Din be accepted. The Administrator wrote on this recommendation "Approved". This, it is urged is an order and it is contended that in so far at least as the Administrator was giving a direction to his own subordinates that this offer was to be accepted and an agree ment was to be executed, there was an order which was appeal able. It is also contended that if this order be set aside, the contract which came into existence on account of the order of the Administrator will fall by itself. The argument is misconceived. In the first place, suppose the Chief Executive Officer did not write any order on any file at all; suppose he was dealing directly with a party, and instead of writing any order simply executed an agreement or a deed of sale. There is no provision in the Corporation Act forcing him to write an order before he enters into an agreement. If an appeal would not lie in such a case, should ‑an appeal lie just because the Chief Executive Officer happens to record an order on a file that he is going to execute an agreement, or gives some directions to his subordinates in connection with the execution of the agreement ? The second objection to this argument ii that any order which the Chief Executive Officer issues to his own sub ordinates in connection with an agreement which is own entering into is really a matter of procedure which is ancillary to entering into a contract. If an act of the Chief Executive Officer is not subject to appeal then any order passed by the Chief Executive Officer only for the execution of such act cannot be the subject of appeal. If the authority of the Chief Executive Officer to enter into contracts is not liable to appellate control his directions for the purpose of entering into a contract cannot also be so liable. Attention of learned counsel for Muhammad Din was drawn to section 368 of the Corporation of City of Lahore act which authorises the Chief Executive Officer to compound offences and he was asked whether in case an offence was compounded or a suit compromised an appeal would lie. Learned counsel admitted that it would not lie. When asked how this concession is consistent with his position that against every act of the Chief Executive Officer which can affect the interest of any person an appeal would lie, he put forward an argument that in the case of compound ing or compromise there is no person aggrieved. It can easily be shown that there can be a person aggrieved in such cases. If the Chief Executive Officer were to demand Rs. 5,000 for compounding a petty offence and the person concerned were to make payment of this apparently exorbitant sum because he was not prepared to face a prosecution, is he not a person aggrieved and can't he appeal to the Commissioner (if any appeal in fact lies) on the ground that it is too exorbitant a compensation or if similarly a suit was compromised and a decree passed against some person in favour of the Corporation, could not that person appeal on the ground that truly the compromise is the result of duress. Would he not be a person aggrieved ? A contention was raised before us that because in. the notice which invited tenders, 10 a.m. was mentioned as the time within which tenders were to be submitted, the receipt of tender after 10 0'clock was illegal. No authority was cited in support of the proposition. Some rules from the Municipal Account Code were cited, but it was admitted that the rules in terms applied to a different set of facts and were being quoted only by way of analogy. Whatever may be said of the propriety of receiving tenders after the appointed time, there is little basis for the contention that the Chief Executive Officer could not have concluded a contract with Ghulam Mohy‑ud‑Din. The Chief Executive Officer was not bound to accept any of the tenders submitted before 10 o'clock. An invitation to tender is not, a contract to accept the highest tender submitted within the appointed time unless there be clear words to that effect, and there were none in this case. While it is true that if tender are accepted after the appointed time, the object of fixing a particular time for the submission of tenders is frustrated and ordinarily a Government Department or the Corporation: would not be justified in accepting a late tender in the intention be to accept the late tender because it brings in more money, the proper course to adopt would be to invite tenders again and give an opportunity to others to bid even higher. It would not be fair, in the absence of exceptional reasons to allow an advantage to the late tenderer. If the time appointed is disregarded in the case of one person, there is no reason why it should not be disregarded in the case of another, and if time is disregarded in the case of all, there would be little meaning in fixing a time. These considerations, however, db not affect the legal aspect and the contract with the late tenderer is perfectly valid. We hold that the order of the Commissioner passed in appeal is without jurisdiction. We want to make it clear that we would have dismissed this writ petition of Ghulam Mohy‑un‑Din if the interests of the Corporation were not going to be affected by such dismissal, for Ghulam Mohy‑ud‑Din having made a clear misstatement of fact is riot entitled to any relief in the exercise of a jurisdiction which is equitable and discretionary and which we would be loath to exercise in favour of a person who approaches us with false allegations on material points. Keeping in view, however, that the dismissal of this petition will involved the Corporation in further difficulties. for there is a completed contract and if fresh tenders are invited Ghulami Mohy‑ud‑Din can sue in the Civil Court on the ground that, the order of the Commissioner is without jurisdiction and does not affect the contract in his favour, we have] decided to accept the petition of Ghulam Mohy‑ud‑Ding but to take proceedings against him for making a false statement. As a result Writ Petition No. 536 of 1957 is accepted and a direction is issued that the order of the Commissioner shall not be given effect to. Writ Petition No. 664 of 1957 is dismissed. Parties are left to bear their own costs in both petitions. A.H. Order accordingly.