ABDUL RAHIM KAZI, J.- The facts are that the plaintiff has filed this suit for declaration permanent injunction and mandatory injunctions and cancellation against the Defendant Nos. 1 to 3.
Subsequently the court has ordered the defendant No.4 to be joined as party to the suit. The case of the plaintiff is that they are contractors and running a building firm and that on 30.1.1993 the defendants through publication in the newspaper had called for tenders for the construction of the stadium sports complex in Manzoor Colony, Unit No.43, District South Karachi. A number of tenders were received by the defendants out of which five tenders were taken into consideration and the tender of plaintiff of Rs. 89,00,000/- was the lowest tender and, therefore, the plaintiff is entitled to award of the contract. It is also the case of the plaintiff that alongwith the tender he had sent a pay-order for Rs. 1,96,000.00 being the 2% of tender money which was accepted by the defendants and that now it has come to their knowledge that after opening the tenders the defendant No.3 with malafide intention and for personal gain and interest and benefits has given the contract to defendant NO.4 whose bid was higher than the plaintiff. It is also the case of the plaintiff that the Superintendent Engineer without the permission of the counsel has malafidely and illegally recommended the case of the defendant No.4 and such contract is granted to defendant No.4. He has also taken the plea that the plaintiffs have not been informed by the Defendant about the rejection of their tender nor they have been given any opportunity of being heard. The plaintiff has, therefore, filed this suit with the following prayer: "It is humbly and respectfully prayed by the plaintiff as under:-
1. That this Honourable Court may be pleased to declare that as the plaintiff has given the Lowest Tender for performing the work of the construction of the Stadium Sports Complex at Manzoor Colony for the sum of Rs.89,00,000/- as compared to the Second Tenderer who has given the Tender of Rs. 96,77, 121/- therefore, the plaintiff is entitled to the contract as laid down in Section 45 of the Sindh Local Government Ordinance, 1979.
2. That it may be further declared that the execution of the letters dated 19.4.1993, 8.4.1993, 7.4.1993, 069/93 and Resolution No.1146/1993 and agreement of contract (if any) are passed and executed with mala-fide intentions and with ulterior motives and as such are Nullity in Law and are illegal, void and ab-initio and liable to be withdrawn and cancelled.
3. That this Honourable Court may be pleased to give direction/manadate to the defendant to issue the work order to the plaintiff to start with the construction work of the Stadium.
4. That Permanent Injunction be issued against the defendants whereby they may be restrained from awarding the contract to a person who has given Tender of higher amount and be further restrained from entering into agreement with such High Tenderer and further be restrained from issuing Work Order to that person or allowing him to carry on with the construction work of the Stadium."
Alongwith the plaint the plaintiffs have submitted an application under Order 39 Rule 1 and 2 C.P.C, read with Section 151 C.P.C, wherein they have prayed for grant of injunction restraining the defendants from allowing other than the plaintiff to enter into the contractual agreement for the construction of the said Sport Complex/Stadium and also from issuing Work Order in this respect.
2. The defendants have contested the suit. The defendant No.4 has filed Written Statement wherein it is urged that before filling of this suit the plaintiff had filed a constitution petition No. 1109 of 1993 before this Court with regard to same subject-matter and cause of action and the parties impleaded were the same. The said petition was withdrawn by the plaintiffs unconditionally under Order 23 Rule 1 C.P.C, and such order was passed by this court on 23.9.1993 whereby the said petition was dismissed as withdrawn. The defendants have further submitted that the tender of the plaintiff was not accepted as it was in a strict compliance with the terms and conditions the tender and also that the tender documents and its accompaniments were not signed and stamped by the plaintiff. It has also been urged by the defendant No.4 that the tender of the plaintiff was for lesser area and lesser construction than the tender of the defendant No. 4. He has also urged that the total covered area tendered by the defendants No.4 is 24318 square feets while the area tendered by the plaintiff is 17059 square feets. Similarly, there is difference in the number of pools etc. He has further submitted that the rate of construction offered by the defendant is less than the rate of construction offered by the plaintiffs. Defendants filed their counter affidavit to the plaintiffs application for grant of injunction. I have heard the learned counsel for the parties, and also perused their pleadings and the documents placed on record.
3. At the very out-set the learned counsel for the plaintiff has submitted that the assertions made by the plaintiff in the affidavit filed by him in support of his application under Order 39 Rule 1 and 2 C.P.C, have not been denied specifically by the defendants. He has further submitted that the affidavits filed by the defendants are vague. Suffice it to say that the defendants No.4 in his counter affidavit has stated that the contents of written statement filed by him may be treated as part of this affidavit. It may further be observed that while considering the application for grant of an injunction the court is permitted to evaluate the merits of the case as disclosed in pleadings of the parties, their affidavits and documents on record with a view to ascertain if a prima facie case has been made out for grant of an injunction. Reliance may be placed on the case of Messrs. Bawany Violin Textile Mills Ltd. Vs. Messrs Karachi Gas Co. Ltd (PLD 1968 Karachi 846). The learned counsel for the plaintiff then submitted that in order to cannot an injunction all that the Court has to see is whether a prima facie case or arguable case has been made out by the plaintiff in his plaint. He has further submitted that an arguable case means that all that the plaintiff is required to show is that he has a point to contest. He has placed reliance on the case of Muhammad Mutin vs. Mrs. Dino Manik Ji Chinoy & Ors. (PLD 1983 Karachi 387). There is no cavil about the proposition of the law that a plaintiff who is able to make out a prima facie case would be entitled to grant of injunction in case the other two ingredients i.e. Liklihood of plaintiffs suffering irreparable loss and balance of convenience being in his favour also co-exist. A perusal of this judgment referred to by the learned counsel will show that a Division Bench of this Court has held that a plaintiff has to establish that there is existence of a right and threatened infringement. It has also been held in this judgment that a court in this respect will not enter into minute and detailed discussion on merits but a limited examination of legal aspect is permissible. In view of the above observations of the Division Bench it has to be seen if the plaintiff has made out a legal right existing in his favour and likelihood of infringement of such right. A legal right means a right which is created by law and is enforcible by law and also that the infringement of such right would invited a penalty in law.
Keeping this principle in view I proceed to examine the law relating invitation of tenders and grant of contracts by the local councils. Rule 7 of the Sind Councils (Contracts) Rules, 1980 lays down as under: "7.(1) No tender shall be deemed to be valid unless-
(a) it is sealed;
(b) in the case of a tender submitted by a firm, it is signed by each member of the firm or a person holding a power of attorney on their behalf, and
(c) it is accompanied by an earnest money equal to two percentum of the amount of the tender, in cash, or in any other manner specified by the Council; provided that the Council may, in special cases for reasons to be recorded in writing, waive the condition of the earnest- money.
(2) All tenders shall be opened by the authority at the time and place specified in the public notice issued under rule 6 the presence of such contractors as may be present and the authority shall affix his initials and date on every tender as opened."
4. It is an admitted position that in respect of the work in present suit, the defendant No.1 had invited the tenders which were opened by the authority in presence of parties. Thus, it can be said that this rule stands complied with. The other provision with regard to contract is contained in Section 45 of the Sind Local Government Ordinance, 1979. This provision provides that every shall be competent to enter into perform such contract as it may consider necessary or expedient. This also provides all such contracts shall in writing etc. The learned counsel for the plaintiff has laid much emphasis on sub-section (3) of this Section which read as under:
(3) All contracts shall, subject to the rules, be entered into after inviting competitive tenders or quotations: Provided that tenders or quotations involving expenditure exceeding such amount as may be prescribed shall be invited by a notice in a newspaper: Provided further that in case the lowest tender or quotation is not accepted, the authority competent to grant the contract, if other than the council, shall lay down in writing, and if the council itself, shall express in the resolution approving the tender or quotation, the reasons for not accepting the lowest tender or quotation."
5. The above provision provides that in case the lowest tender or quotation is not accepted than the authority other than the council shall lay down in writing the reasons for not accepting the same. However, it further provides that in case the council itself does not accept the lowest tender the council can do so by expressing the same in the resolution. In the present case a reference to the documents filed with the plaint and written statement would show that the matter was referred by the concerned Executive Engineer through the Superintendent Engineer to the above defendant No.1 which is annexure "E-I attached to the written statement. In this reference the concerned Engineer had given reasons in detail for not accepting the tender of the plaintiff and had also recommended that the tender of the defendant No.4 be accepted for reasons mentioned therein.
On this recommendation the Administrator of defendant No.1 has given his approval. A persual of annexure "E-5" filed with the written statement shows that under Notification No.SO-I (LG) 5(93)/92 dated 7.10.1992 the powers of the council have been conferred and the Administrator, Z.M.C.(South), Karachi and in consequence of these powers the Administration has passed resolution No.116 dated 8.4.1993 whereby he has approved the grant of such contract on the basis of reference of Municipal Commissioner dated 7.4.1993. The above discussion and the provision of the Act and Rules stated show that the approval given by the Administration of the defendant No.1 is quite lawful. The plea raised by the learned counsel for the plaintiff is that his tender has been rejected without assigning any reasons and that he has not been intimated by the defendant No.1 to this effect. He has also taken plea that the principles of natural justice required that before rejecting his tender he should have been granted an opportunity of being heard. The learned counsel has not been able to show from any legal provision that it was incumbent upon the defendant No.1 to have accept the tender of the plaintiff for the reason that it quoted lowest amount. In the first instance, Mr.M.Farogh Naseem, learned counsel for the defendant No.4 has pointed out that the tender submitted by the plaintiff does not fulfil the requirement of tender itself. He has referred to the condition No.23 of the tender form. The defendant have filed the copy of the tender form of the plaintiff as annexure C-I with his written statement. The condition N. 23 reads as under: "23. Each tender documents/supporting documents/attachments should page wise be signed under the stamp of the agency/firm."
This tender form Ex.C-I does not bear the signatures of the plaintiff or their stamp on each of the three pages as required by above condition nor does the annexures attached therewith are singed and stamp as required. In such circumstances, it cannot be said that this condition has been fulfilled. The learned counsel for the defendant has then referred to the document annexure E-2.
This is a comparative statement of covered are and tender requirement plaintiff and defendant No.4. This statement shows that the covered area tendered for by the plaintiff is only 17059 square feet whereas the covered area tendered for by the defendant No.4 is 24318 square In such circumstances i.e. Covered area tendered for by the defendant No.4 being much more than the area tendered for by the plaintiff, the defendants bid has to be higher than the plaintiff. The question, therefore, that arises for consideration is whether it should the defendant No.1 who could be best judge for their needs and requirement or the plaintiffs who have quoted the lowest bid but with lesser area. In the case of Messrs Pacific Multinational (Pvt) Ltd. Vs. Inspector-General of Police, Sind Police Headquarters and two others PLD 1992 Kar. 283). It was held as under: "These four services offered by respondent No.3 were on account of their agency relation with the manufacturer a non-agent could not possibly offer. It could not be disputed that contract under consideration related to the purchase of very sophisticated machines in which a part from the price factor, other considerations such as, after sale service, regular supply of spares, availability of technical assistance and advice relating to operation and maintenance of machines were equally important and relevant factor for consideration while awarding the contract. Judged in the light of above consideration, we find that the decision of the Government to purchase the two Bell Helicopters from respondent No.3 was based on sound judgment and valid consideration. No case for interference is made-out."
6. Similarly in the case of Messrs Saadullah Khan and brothers vs The Province of West Pakistan (PLD 1971 Quetta 101), it was held by a Division Bench that in case of allocation of contract by Government for public works. It is solely within the competence of the government laid down the policy for allocation of such contract and a contractor can have no say in the matter and also that the same was not open to judicial review by law courts In these circumstances, I am of the view that the plaintiff has filed to make out prima facie case as he has not shown as to what is the legal right existing in his favour and whether the same can be enforced in law.
7. The learned counsel for the plaintiff has further submitted that in case the injunction as prayed for by him is not granted he will suffer an irreparable loss and that the balance of convenience is also in his favour. It may be observed that this is a work being carried in public interest and no injunction can be granted restraining the execution of such work as it is ultimately the public at large which would suffer. The order of restraint thus would be contrary to the public interest. Even otherwise the plaintiff has not been able to show as to what would be the loss or its such nature that he is likely to suffer. It is not his case that he had made of arrangements for carrying on the said work or he was made to suffer heavy losses on expenses incurred by him. Nor could he do so unless his tender was accepted, The loss, if any, could be that of profit margin that the plaintiff could have earned from this contract which could be calculated by the plaintiff and the remedy available to him in such case would be to sue the defendants for such damages.
8. Lastly the learned counsel for the defendants has pointed out that prior to filing of the suit the plaintiff had instituted a constitution petition in this court being constitution petition No.1109/1993 against the present defendant Nos.1 to 3 arising out of same cause of action. This petition was heard and when the same were fixed for orders the present plaintiff moved an application under Order 23 Rule 1 C.P.C, for unconditional with drawal of the said petition and an order was passed on 23.9.1993 whereby the petition was dismissed as withdrawn. The learned counsel has submitted that this fact has been suppressed by the plaintiff and also that in view of this withdrawal he has barred from filing the present suit. During course of arguments the learned counsel for the plaintiff did not deny the fact that he had filed the petition and the same was dismissed as withdrawn prior to filing of this suit. It is very surprising to note that though the same learned counsel appeared in petition and in this suit but yet this was not disclosed in the plaint. This gives rise to the inference that the present plaintiff has not come to court with clean hands. The injunctions is a relief in equity and the plaintiff in order to seek equity ought to do equity himself. He cannot be permitted to seek a remedy incurred by supressing the facts which may tenant to dis-entitles him from such relief. In these circumstances, it may be observed that the plaintiff would not be entitled to any relief in equity.
9. As regards the plea of natural justice taken by the learned counsel for the plaintiff it may be observed that it is of course a well established principle of law that no one is to be condenmed unheard. As discussed above, in the present case the discretion lies with the defendant No.1 to accept or reject a tender given by the bidder. Of course, this discretion is to be exercised judiciously and not arbitrarily. The above discussion would show that the defendant No.1 has acted within the scope of authority as invested under the Act and Rules and for the reasons mentioned in the report of the Executive Engineer and the resolution passed by the defendant No.1. Thus, it cannot be said that the defendant No.1 has acted arbitrarily. In such circumstances, the discretion having been exercised within authority invested and for reasons mentioned therein, there is hardly and scope for giving notice of hearing to the plaintiff. "In administrative law" by SIR WILLIAM WADE 6th Edition it has been laid down at 524. "But it is now clearly settled, as is indeed self-evident, that there is no difference between natural justice and acting fairly, but that they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case." The above observations in the commentary has been made in view of the principle of law laid down in the various judgments as mentioned therein.
10. In view of the above discussion the present application is liable to be dismissed. Accordingly, the application is dismissed with no order as to costs. The interim orders passed earlier are hereby recalled. The above are the reasons for the short order passed in Court on 6.2.1994.