Municipal Corporation Of City Of ... vs Vedant Security Services
2005 Latest Caselaw 609 Bom

JUDGMENT

Dharmadhikari B.P., J.

1. Petitioner is local body constituted under the provisions of Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Act" for brevity) for Municipal Administration of Amravati town. Petitioner No. 2 is its Deputy Municipal Commissioner (Administration). Through this writ petition under Article 227 of Constitution of India they challenge the order dated 14-2-2005 passed by Second Joint Civil Judge, Junior Division, Amravati in regular Civil Suit No. 62/2005 allowing application at exhibit 5 and the subsequent order dated 21-4-2005 passed by Additional District Judge, Amravati in Misc. Civil Appeal No. 6 of 2005 upholding the said order of trial Court. By this order, the trial Court has restrained petitioners from acting upon tender notice published by them in the newspaper on 2-2-2005 inviting tenders for engagement of security guards till 30th April, 2006 or till disposal of main suit, whichever is earlier. The respondent is an establishment engaged in business of providing security services. Said respondent filed caveat before this Court and with consent of parties petition has been heard finally on 6-5-2005 at the end of daily board.

2. According to petitioners, respondent/original plaintiff is a contractor providing security guards to various organisations and as per contract dated 30-4-2002, he was appointed as contractor for providing security guards to petitioners for period of two years from 1-5-2002 to 30-4-2004. The contract does not contain provision for renewal or extension and it expired on 30-4-2004. As per Rule 5(2) of Chapter V to the Schedule of the Act, before entering into any contract for execution of work involving expenditure exceeding Rs. 3000/- it is incumbent on Corporation to invite tenders and as such, respondents with an intention to have a back door entry directly approached the Standing Committee of petitioner number one Corporation which passed a resolution on 13-2-2004 to renew its contract for period of two years i.e. up to 30-4-2006. The Municipal Commissioner decided to adhere to law and therefore he has not implemented that resolution and after expiry of period of model code of conduct which was in force on account of Parliamentary and Assembly elections, sent the same for its recession under Section 451 of the Act to the Government and also decided to call tenders for obtaining services of security guards. Accordingly public notice of such tenders came to be published in local newspaper "Dainik Janmadhyam" on 2-2-2005. The respondent filed Regular Civil Suit No. 62/2005 challenging this tender notice and he also sought a temporary injunction restraining the petitioners from acting upon said notice. The petitioners state that they filed reply opposing prayer for grant of temporary injunction but the trial Court allowed said application for grant of temporary injunction. Petitioners challenged said order by filing appeal against order under Order 43, Rule 1(r) of the C.P.C. but on 21-4-2005, the Appellate Court dismissed the said appeal.

3. I have heard Advocate M.G. Bhangade for petitioners and Advocate V.M. Deshpande for respondent.

4. Advocate M.G. Bhangade has contended that during pendency of these proceedings a show cause notice was also issued to respondent for engaging incompetent security guards as their ages were between 65 to 74 years and they were physically and mentally not fit for the job. In their presence antisocial elements destroyed the chamber and property of the Corporation on 22-12-2004. The security guards also gave the electric supply to residents from Corporation Electric meter. He contended that both the courts below overlooked the character and nature of personality of petitioners and also the effect of legal provisions applicable in the matter. He contends that there was no executable right with respondent to enable him to institute a suit and, passing of resolution either by Standing Committee or by General Body does not cloth Him with any locus or status for the purpose. He contends that after expiry of agreed period, the petitioner was duty bound to follow the provisions of law and the orders passed by courts below in fact run counter to this requirement. He states that inviting tenders and giving opportunity to all eligible aspirants was the basic requirement of the situation and courts below could not have ordered specific performance of such illegal resolution of Standing Committee. He further contends that such resolutions either of Standing Committee or General Body are not binding upon Commissioner. There is no contract with respondent after 30-4-2004 or for period up to 30-4-2006 and as such the courts below could not have granted any injunction in favour of respondent. He states that there has to be a valid and legal contract as per provisions of sections 73 and 74 of the Act and in absence of such contract, suit was not maintainable. According to him, the courts have indirectly granted a decree for specific performance. The injunction granted is against the provisions of sections 14, 16 and 41 of the Specific Relief Act. He further states that the complaints against respondent and its significance were overlooked while passing the impugned orders. While replying to the arguments of respondent, he has pointed out that no plea that a contract for period between 1-5-2004 to 30-4-2006 was entered into between parties was raised by respondent/plaintiff before trial Court. He further states that in any case facts do not show that respondent would be put to irreparable loss and, at the most he could have filed a suit for damages. He further argues that balance of convenience in the matter was also in favour of petitioners. He states that in view of law on the subject there was no prima facie case in favour of respondent. He has relied upon various judgments like between (Oil & Natural Gas Corporations. Messers Streamline Shipping Co. Private Ltd.), , (Dr. H.S. Rikhy v. The New Delhi Municipal Committee), , between (Messers Triveni Structurals Limited v. Messers Newage Enterprises), , between (J.P. Bansal v. State of Rajasthan), , between (Piloo Dhunnjishaw Sidhwa v. Municipal Corporation of The City of Poona).

5. Advocate V.M. Deshpande for respondent states that there was fresh contract between parties for period up to 30-4-2006 and its copy was mala fidely retained by petitioners. He states that after resolution of Standing Committee, General Body on 19-8-2004 approved grant of contract to respondent and on 21-8-2004 Standing Committee reaffirmed it. He states that fresh contract was entered into on 15-5-2004. He points out that there are documents on record which reveal that the petitioners were engaging security guard from respondent even after 30-4-2004 regularly and all these communications are issued with prior approval of Commissioner. He states that this official nature of engagement after expiry of period of earlier contract clearly show that there was fresh contract and he invites attention of this High Court to the assertion in this respect in reply and its non denial by petitioners. He further states that publication of tender notice by Commissioner was itself illegal because no previous approval of State Government was obtained as contemplated by Rules. He further states that to verify this position, a notice to produce documents was issued and documents have not been produced. He further states rules permit Standing Committee to enter into contract even without inviting tenders. He argues that Commissioner is duty bound to implement the resolutions in view of Section 67(3) of the Act and unless and until the resolution is suspended under Section 451 of the Act, Commissioner cannot avoid the same. He contends that State Government has been approached by Commissioner under Section 451 on 11-11-2004 and till date Government has not passed any orders either rescinding or suspending the resolutions. He further states that even in this communication dated 11-11-2004 Commissioner has accepted that respondent has supplied security guards during model Code of Conduct and this could not have been done without proper orders. He therefore states that concurrent orders passed by both the courts below are not perverse and cannot be interfered within supervisory jurisdiction. He places reliance upon judgment reported at 2003(6) S.C.C. 675, between (Surya Dev Rai v. Ram Chander Rai). He also undertook exercise of distinguishing various judgments on which Advocate M.G. Bhangade has placed reliance. He concluded by stating that the Appellate Court has already expedited decision of civil suit by ordering its disposal within four months and, this Court can order disposal even in less time. He stated that grant of indulgence by this Court in supervisory jurisdiction would render the suit filed by respondent infructuous.

6. Admitted position which emerges on record is that there was a valid contract in favour of present respondent for period of two years which expired on 30-4-2004. It is the specific case of respondent in his plaint that by virtue of resolutions passed by General Body of Corporation and Standing Committee, the old contract has been renewed for further period of two years i.e. from 1-5-2004 to 30-4-2006. Reference to these pleadings in more detail is called for in this case but the same will be made at appropriate place. However, before that it is necessary to consider the provisions of the Act to find out the legal provisions regulating the situation. Section 4 of the Act prescribes various authorities charged with duty of execution of the Act. For the purposes of present controversy those authorities are Corporation, Standing Committee, Municipal Commissioner. Section 43 states that meetings of Corporation or Standing Committee shall be held and the business before them shall be disposed of in manager prescribed by Rules. Section 67(3) lays down that the entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which imposes any duty or confers any power on the Corporation, vests in the Commissioner and this is qualified by opening part of this section which mentions that the legislature may by provision in the Act expressly direct the said executive power of Commissioner to be subject to approval or sanction of the Corporation or the Standing Committee and it is subject to all other restrictions, limitations and conditions imposed by the Act or by any other law for the time being in force. Thus, Municipal Commissioner is the executive head subject to only express provision occurring in the Act which requires approval or sanction from Corporation or Standing Committee Section 73 deals with contracts and power to Commissioner to executed contracts on behalf of Corporation. As per this provision, every such contract is to be made on behalf of Corporation by Commissioner and if any provision of Act requires previous approval or sanction of some other Municipal authority, Commissioner cannot make such contract without first getting such approval or sanction. If the contract involves expenditure exceeding Rs. 3 lakhs, Commissioner has to first obtained previous approval of Standings Committee. If the contract involves expenditure in excess of Rs. 50,000/- but not exceeding Rs. 3 lakhs, Commissioner has to report the contract within 15 days to the Standing Committee. Section 74 states that the mode of executing the contract is as prescribed by rules and the contract which is not made in accordance with the provisions of Act and rules, is not binding on Corporation. Chapter V of appendix at the end of the Act prescribes mode of executing contracts. According to it every contract is required to be under seal of Corporation and, if the contract is for execution of any work on supply of any goods or material involving expenditure exceeding Rs. 500/-, it is required to be in writing and, in certain circumstances Commissioner by order in writing dispense with execution of such written instrument. The common seal of Corporation in custody of Municipal Secretary is required to be a fixed on contract in presence of two members of Standing Committee and such members are also required to sign the contract in taken of their presence. If the expenditure involved is exceeding Rs. 3 lakhs the Commissioner has invite offers from public at large by issuing public advertisement and inviting tenders. The State Government has been given power to prescribe ceiling of Rs. 3000/- or such other amount for this purpose as Corporation may prescribe with approval of State Government. The Commissioner is not bound to accept any tender and he can accept such tender which appears to him to be most advantageous in the interest of Corporation. The Standing Committee can authorise Commissioner for reasons to be recorded in proceedings of its meeting to enter into contract without inviting tenders or without accepting any tender which he may receive after having invited them.

7. Somewhat similar provision appearing in Punjab Municipal Act, 1911 has been considered by Hon'ble Apex Court in judgment between Dr. H.S. Rikhyv. The New Delhi Municipal Committee reported at A.I.R. 1962 S.C. 554, in this case the Committee constructed in 1945 Municipal market and on 10th April, 1945 invited tenders in pursuance of resolutions passed and after finalising the same, allotted shop blocks to highest bidders. In 1952, 30 occupants filed applications for fixation of standard rent and Municipal Committee raised preliminary objection to its maintainability on the ground that there was no relationship of landlord and tenant between the parties. The trial Court accordingly framed the issue and found that the applications were maintainable. The Municipal Committee then moved High Court and the learned Singled Judge made reference to Division Bench which held that there was no valid lease between parties and as such the applications moved by occupants/allottees were not tenable. The allottees then approached the Hon'ble Apex Court and, after considering provisions of Section 47 of Punjab Act, the Hon'ble Apex Court found that Section 47 led down essential conditions of the exercise of the power and unless those conditions were fulfilled, there could be no contract and no transfer of property. It found that contract executed otherwise than in accordance with provisions of that section was declared not to be binding on the Committee. It also considered the argument that though contract may not be binding on the Committee, still it would not be void. The Hon'ble Apex Court held that the expression "shall not be binding on the Committee" means that it would not be enforceable against the Committee and, agreement not enforceable in law is void. It is further held that if a statute makes a specific provision that a body corporate, has to act in particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed. It further held that a corporate or statutory body is not estopped from denying that is has entered into contract which it was ultra vires for it to make. No corporate body can be bound by e stopple to do something beyond its powers, or to retrain from doing what it is its duty to do. Thus the judgment of High Court was upheld and appeals of allottees were dismissed learned Advocate for respondent/ original plaintiff stated that here the petitioner is not accepting the contract for further period at all and hence, this ruling has no application. However, it is the case of respondent that in view of resolutions of Standing Committee, it is entitled to provide security guards without any interruption till April, 2006, and as such, the ratio of this judgment of Hon'ble Apex Court as clearly applicable here , between Pilon Dhunnajishaw Sidhwa v. Municipal Corporation of The City of Poona, is the other case in which very provisions of sections 73, 74(2) of the Act have been considered. The appellant before Hon'ble Apex Court was the plaintiff who supplied motor spare parts to the respondent and as his full amount was not paid, he filed suit for its recovery. The trial Court decreed the suit and respondent Municipal Corporation appealed to High Court. The High Court rejected claim of plaintiff for damages for breach of contract and held that he was entitled to "fair price" of the goods supplied. The High Court also fixed the fair price. Said plaintiff then obtained certificate from High Court and approached the Hon'ble Apex Court. The Hon'ble Apex Court found that a formal contract incorporating the agreed terms between the appellant before it and the Corporation was not and could not be executed and sealed as required by the Act, for, at the relevant time elections of Councillors to the Corporation had not been held, and no transport Committee was constituted as required by Section 25 of the Act and the powers of Corporation were being exercised by Commissioner pursuant to transitory provisions it found that under Rules to Chapter V the seal of the Corporation must be affixed in presence of two members of the transport Committee who were to sign in token of seal having been affixed to the contract. The Act clearly provided by Section 74(2) that the contract which was not made in accordance with the provisions of the Act and Rules would not be binding on Corporation. The contract was not made in accordance with the provisions of the Act, for, it was not sealed, and was by virtue Section 74(2) of the Act not binding upon the Corporation Hon'ble Apex Court further observed that the Corporation being a body corporate is having perpetual succession and the common seal provisions of sections 73 and 74 and the relevant Rules in Chapter V were applicable even before the elections were held and the statutory Committees were constituted. It found that there was nothing in transitory provisions which excuse the operation of Section 74(2) of the Act. Hon'ble Apex Court held that even assuming that it was not possible to comply with the rules, until the elections were held, there was no warrant for holding that provisions of Section 74(2) would not have applied and Commissioner or transport manager may enter into contracts without seal which were enforceable at law, notwithstanding the absolute terms of the Act. In ultimate analysis, Hon'ble Apex Court held that there was on enforceable contract between the appellant before it and the Corporation.

8. Thus, it is clear that the provisions of the Act prescribing mode and manner of executing contract is mandatory and any contract, in breach thereof cannot be legally enforced against petitioner Corporation. Such contract is not binding upon the petitioner at all. Here, therefore, this Court has to find out whether there exists any such contract between parties. The plaint allegations in this respect are already stated above. The respondent/plaintiff has not pointed out execution of any fresh contract for further period of two years between parties in his plaint. He has only placed reliance upon the resolution dated 13-2-2004 passed by Standing Committee for continuation of contract to provide security guards. The copy of contract dated 30-4-2002 is placed on record and it expressly mentions period of two years from 1-5-2002. It reveals that in the year 2001-2002 tenders submitted by respondent was found to the lowest hands as such contract was allotted to him. On 20-3-2002 respondent gave letter to Municipal Commissioner that respondent was ready and willing to work at same rate even in future and accordingly Commissioner sanctioned administrative proposal which was accepted by Standing Committee on 19-4-2002 and a contract dated 30-4-2002 was executed. This agreement does not contain any clause for renewal after is expiry it appears that in the meeting of Standing Committee on 13-2-2004 members thereof moved subject number 93 and the Standing Committee passed resolution to continue respondent for next period of two years. Thus there was no proposal prepared by office of Commissioner in this respect. In reply filed before this Court, respondent has pointed out Resolution No. 35 passed by General Body of petitioner. Again, said subject was moved by corporators directly in the meeting without any proposal in that respect by the office and in this meeting General Body has resolved to implement the above mentioned resolution at Standing Committee it has passed the resolutions unanimosuly and has also confirmed it immediately. On 21-8-2004, the Standing Committee again sanctioned its earlier Resolution No. 93 dated 13-2-2004 in the light of this General Body meeting and Standing Committee also immediately confirmed it. Again, the subject was taken up as administrative subject placed for consideration at the eleventh hour. It is thus clear that till 21-8-2004, there was no contact executed between parties. Advocate. V.M. Deshpande has relied upon communication dated 15th May, 2004, written by the Deputy Municipal Commissioner to respondent which contains a line that an agreement is entered into between parties as per approval given by Commissioner and Standing Committee. At the bottom, it is mentioned that the communication is sent as per orders of Municipal Commissioner. Advocate V.M. Deshpande has argued that the office of Commissioner is deliberately suppressing said agreement and has not even given its copy to respondent. The petitioner is not accepting existence of any such agreement/ contact. It is interesting to note that plaint is filed after 4th February, 2005 and is challenges notice inviting tenders for engaging security guards. Existence of such contract between parties was very vital in this respect but the plaint does not mention any such contract/agreement. Advocate V.M. Deshpande has also made reference to certain other communications which show that they are issued by office of the Municipal Corporation as per orders of Municipal Commissioner. None of these documents reveal that there is any written contract between parties in accordance with the provisions of the Act mentioned above. If the petitioners were inviting tenders when there was really such contract executed between parties as per law, existence thereof was most significant factor which ought to have been pleaded and used by respondent in his suit. The fact that its copy was not supplied to respondent also ought to have been mentioned in the suit. Omission of these two important facts in basic pleading (plaint) itself show that there was no such contract executed between parties. Reliance upon communication dated 15th May, 2004 to prove existence of written contract is equally misconceived, as in that event it was not necessary for General Body on 19-8-2004 or for Standing Committee on 21-8-2004 to pass any resolution on the subject. The reference in said letter is to the contract dated 30-4-2002 only. Moreover, in view of the legal provisions and the law settled by the Hon'ble Apex Court in this respect, no presumption of existence of such contract can be drawn.

9. Advocate V.M. Deshpande has pointed out a specific assertion in this respect from paragraph 5 of submissions on affidavit filed on 4th May, 2005 in this writ petition. Said paragraph states that in pursuance of resolution of Standing Committee dated 13-2-2004 a contract was entered into between petitioner respondent as per provision of Bombay Provincial Municipal Corporation Act. It is further pleaded in this paragraph that all the documents and written contract is in possession of petitioner-Corporation. However, it is apparent that the same cannot save the situation for respondent at this stage. These allegations are lacking in material particulars. The written statement and reply of petitioner Corporation filed before trial Court in February, 2005 expressly states that no contract has been entered into between petitioner respondent and much less a contract as per provisions of Act was existence between parties. It has been further pleaded that granting temporary injunction would amount to enforcing the contract which is not in existence.

10. Thus, the discussion above proves that there is no contract executed between parties as per provisions of the Act. Admittedly, Municipal Commissioner has written letter to Principal Secretary urban development on 11-11-2004 and in it, it has mentioned that on account of model code of conduct because of assembly elections, respondent was given extension till 31st October, 2004. It is further mentioned that in the meanwhile by un-official resolutions, it has been resolved to give work to respondent for further period of two years. From this letter and from other correspondence on record, it appears that the petitioner has engaged security guards from respondent on ad hoc basis and that does not mean that there is any contract between parties vitiating the public tender notice issued on 2-2-2005. Principles of estoppel are not attracted here in view of the ratio of rulings already stated above.

11. The next question which arises is whether there was any right in favour of respondent enabling it to maintain the suit. In other words, the question is whether mere passing of resolution by Standing Committee or by General Body confers any executable right in favour of respondent/original plaintiff. In between J.P. Bansal v. State of Rajasthan, the Hon'ble Apex Court has considered the issue. The appellant before Hon'ble Apex Court was appointed as A judicial members of Rajasthan Taxation Tribunal on 16-9-1995 and on 27-2-1999. State Government issued ordinance and transferred matters and proceedings pending before said Tribunal to the High Court and abolished the Tribunal. The appellant therefore claimed compensation with interest contending that his appointment was to continue up to 18-9-2000. He relied upon Cabinet decision taken to release his salary for balance period. The learned Single Judge of Rajasthan High Court dismissed said writ petition and observed that it was not open to High Court to enforce the Cabinet decision. The Division Bench of said High Court confirmed the decision of learned Single Judge and the matter came up before Hon'ble Apex Court. The Hon'ble Apex Court held that it was not necessary for it to examine disputed question as to whether there was any Cabinet decision because it was not established that there was any Government order in terms of Article 166 of the Constitution. The Constitution requires that the action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that action can be regarded as that of State. Hon'ble Apex Court observed speaking constitutionally the Council of ministers are advisers and as the head of the State the Government is to act with the aid or advice of the Council of ministers. Therefore till the advice is accepted by the Governor, views of the Council of ministers do not get crystallised into action of State observations above reveal that the Hon'ble Apex Court considered Article 166(1) of Constitution of India which requires that all executive actions of the Government of a State are to be expressed and to be taken in the name of Governor it will thus be seen, that merely passing of resolution by Cabinet is not sufficient to hold that any right is created in favour of any person. Here also, the executive actions of petitioner Corporation are to be taken in the name of its Chief Executive Office i.e. Municipal Commissioner 1954 Nagpur Law Journal 48 between (Vishwanath v. Corporation of City of Nagpur), considers similar situation in the light of provisions of Section 25 of C.P. and Berar Municipalities Act. There the Municipal Committee by resolution dated 2-9-1950 decided to pay to its employees the difference of C.C.L.A. for 19 months and employees filed suit for its implementation. This Court in Civil Revision observed that the resolution created no contract or right in the employees in compensatory costs of living allowance which could be enforced by suit. From the scheme of the Act (Bombay Provincial Principal Corporation Act, 1949) itself, the similar conclusion here is inevitable. Section 67(3), Section 73, Section 74 and provisions of Chapter V prescribing mode and manner of executing the contract cannot be rendered nugatory by permitting the party to file suit merely on the basis of resolution of Standing Committee. It is apparent that respondent-plaintiff did not have cause of action to file sum of present nature against petitioners.

12. Advocate M.G. Bhangade by way of abundant precaution and in the alternative has also argued that in view of provisions of Section 41(e) and Section 14(1)(a) of Specific Relief Act, 1963 suit of present nature could not have been filed at all. Section 14 illustrates contracts which are not specifically enforceable. Under its Sub-section (1) Clause (a) a contract for non-performance of which compensation in money is an adequate relief cannot be specifically enforced. Section 41(e) lays down that an injunction cannot be granted to prevent breach of contract the performance of which would not be specifically enforced in the facts of present case, as already held above, there is no contract in favour of respondent and he has filed suit by placing reliance merely on resolutions. However, even it if is presumed that a contract exists in favour of respondent still the remedy of respondent is to file suit for damages and to recover the amount of loss caused to him because of alleged breach of said contract. Compensation in money is adequate relief for said purpose in A.I.R. 1993 Allahabad 78 between Messers Triveni Structurals Limited v. Messers New King Enterprises, the Division Bench of Allahabad High Court has considered these provisions and held that the contract taken by appellant from National Thermal Power Corporation for raising a microwave tower could not have been specifically enforced. The appellant invited tender for foundation work of tower and tender of respondent was accepted. On 5-5-1992 appellant informed the respondent that their engineer would be available in sight for laying down it. The respondents were also asked to mobilise their manpower, tools etc. at spot. On 17-5-1992 appellant issued a letter to respondent that work had not started in spite of request of engineer of appellant to start the foundation work on 12-5-1992. On 18-5-1992 appellant issued time schedule for completion of work and accordingly mobilisation at site was to be completed by first week of May. On 25-5-1992 appellant wrote to respondent and communicated to them that time schedule had been already handed over and respondent should mobilise and start excavation work within seven days from 25-5-1992. On 4-6-1992 respondent wrote to appellant informing that site had been mobilised and the excavation completed on 4-6-1992. After excavation, respondent wrote to appellant for making running payment and on 22-7-1992 appellant categorically communicated to respondent that they were not entitled to running payment but amount of Rs. 15,000/- only was released. On 28-7-1992 parties agreed to new schedule of work and respondent was categorically informed that till 3-8-1992 he did not bring any material etc. at site. He was directed to complete "lean concerning" by 5-8-1992 and then, as Respondent did not start that work, he was informed that appellant was going to get the work completed though other agency. The respondent thereafter filed this suit before trial Court and Civil Judge, Allahabad issued ad interim injunction directing parties to maintain status quo on spot and not to proceed with further construction. This order was then extended from time to time. The Allahabad High Court was approached in appeal. The Allahabad High Court after going through contract papers found that the amount of loss to the respondent was ascertainable amount and as such compensation for alleged breach of contract by appellant before it was an adequate relief. Consequently in view of provisions of sections 14 and 41 of the Specific Relief Act, the High Court held that respondent would not be entitled to any permanent injunction and consequently respondent could not get a temporary injunction. Advocate V.M. Deshpande contended that the contract considered by Allahabad High Court was of peculiar type requiring special skill and hence, the Allahabad High Court has taken said view. However, no such distinction can be drawn and is not available. The Division Bench of this Court also in 2002(4) Bom.C.R. (O.O.C. J.)706 : 2002(3) Mh.L. J. 530 between Oil & Natural Gas Corporation v. Messers Streamline Shipping Limited Co., considered similar issue. There learned Single Judge granted interim injunction under section 9 of Arbitration and Conciliation Act, 1996 and Division Bench was approached in appeal. On 30-12-1999 a contract was entered between the appellant and respondent and it contained the clause (Clause 19) which permitted appellant/owners to terminate the agreement at any time after expiry of one year of contract by giving 30 days notice in writing to the operator without assigning reason whatsoever. On 16-10-2001 appellant issued a notice terminating the contract with effect from 15-11-2001 under said clause and the respondent invoked the Arbitration clause. Amongst others things respondent also challenged the said clause in the agreement as unconscionable and opposed to public policy and also violative of Section 23 of the Contract Act. The learned Single Judge took the view that said clause is unconscionable and against public policy. The Division Bench found that the learned Single Judge committed error in holding said clause unconscionable, it held that the contract was determinable and therefore could not have been specifically enforced in view of provisions of Section 14(1)(c) of Specific Relief Act. It found that in view of provisions of Section 41(e) of said Act, no injunction could have been granted to prevent breach of that contract. It therefore allowed the appeal. Learned Counsel for respondent has attempted to distinguish this case by contending that in the contract considered by Division Bench, there was power to terminate it and the contract between parties in this petition does not contain any such power. However, considering the ratio and the law on the point, this cannot be the distinguishing feature at all.

13. The facts of present case are identical. The earlier contract was determinable and in fact has already expired. Similarly, there is no fresh contract for subsequent period of 1-5-2004 to 30-4-2006. Even if such contract is in existence, compensation in money is adequate relief for its breach. In such circumstances, suit of respondent to specifically enforce the resolutions of Standing Committee or General Body was clearly misconceived and unsustainable. The trial Court could not have specifically enforced alleged contract between petitioner and respondent. It could have only granted compensation to the respondent in appropriate civil suit. It could not have therefore passed any restraining orders about the tender notice published by petitioners on 2-2-2005. There is no substance in the arguments of Advocate V.M. Deshpande that suit of respondent is not a suit for specific performance. The pleadings clearly show that effort of respondent is to continue as agency supplying security guards till 30-4-2006. In such circumstances, the argument that civil sum is already expedited or it can be directed to be decided still earlier is of no assistance because, prima facie it is apparent that there is no executable right in favour of respondent.

14. Advocate V.M. Deshpande for respondent has also argued that unless and until the State Government sets aside the resolutions of Standing Committee or of General Body under Section 451 of the Act, Municipal Commissioners cannot refuse to implement the same. He contends that Section 67(3) requires the Commissioner to implement those resolutions. He states that Commissioner has written to State Government on 11-11-2004 and till date, Government has not passed any orders under Section 451. He argues that decision to invite fresh tenders has been taken only because of alleged complaints against the respondent. I find that there is no contract authorising respondent to function after 30-4-2004 and petitioners are within their rights in inviting fresh tenders in accordance with law. The said action cannot be labelled as mala fide or dishonest. Present of letter dated 11-11-2004 written by Municipal Commissioner to State Government under Section 451 of the Act reveals that extension was given to respondent only because of model code of conduct then prevalent on account of assembly elections. It is also mentioned that a member of Standing Committee moved a proposal in meeting of Standing Committee and got it cleared. The letter also comments on resolution of General Body on same lines. The Municipal Commissioner has mentioned that granting extension in this manner without following prescribe procedure will not be proper Section 451 permits State Government to suspend execution of a resolution or order or prohibit doing of any Act if State Government finds that its execution or doing would be in contravention of or in excess of powers conferred by or under Act or is likely to lead to a breach of peace or to cause injury or annoyance to public or is likely to lead to abuse or misuse of or to cause waste of municipal fund against the interest to public. From the discussion above, it is clear that action under Section 451 is different issue and has got no hearing insofar as powers of Municipal Commissioner as Chief Executive Officer are concerned. It is to be noticed that it is the respondent who approached the Civil Court. The discussion above reveals that there has to be a contract in writing executed between parties in accordance with the law and, then only, respondent can approach Civil Court for ventilation of his grievance in the matter. However, he cannot, either directly or indirectly seek its specific performance. He has to file suit for damages. In such circumstances, these arguments are also without any merit and are liable to be rejected. The contention of respondent that municipal Commissioner has not obtained previous permission/approval from State Government before inviting tenders is also misconceived. There is no such requirement in Rule 1 of Chapter V. The approval of State Government is only in relation to fixing the limit of expenditure above which it will be mandatory for the Commissioner to invite tenders by public notice. The words "such higher amount as the Corporation may, whith approval of State Government" are not ambiguous at all. Similarly, Standing Committee has not authorised the Municipal Commissioner to finalise contract without inviting tenders and resolution of Standing Committee also does not record any reasons for the same. The resolution therefore cannot be interpreted to permit Commissioners to proceed further in the matter of allotment of security contract without tenders.

15. Respondent has pointed out 2003(6) S.C.C. 675, between Surya Dev Raj v. Ram Chander Rai, to contend that in writ jurisdiction, this Court should not interfere in concurrent orders of lower courts. Advocate V.M. Deshpande has pointed out observations of Hon'ble Apex Court in paragraph 26 and paragraph 38 Hon'ble Apex Court itself has stated that in some cases jurisdictional error committed by inferior Court or Tribunal would be incapable of being remedied once the proceedings are concluded. Here, as is apparent from discussion above, the effort of respondent is to continue to supply security guards for as much longer period as possible and the petitioners are trying to procure security guards through competitive and open tender advertisement. Delay in the process is operating to the prejudice of petitioners. Respondent is free to participate in such fresh tenders. I find that by granting temporary injunction in favour of respondent the courts below have exercised jurisdiction not available to them and have also prohibited the petitioners from discharging their legal obligations in the matter. Hence, reliance on this judgment by learned Counsel for respondent in the facts of present case is unwarranted.

16. In the result, I find that the orders passed by courts below are unsustainable. The same are accordingly quashed and set aside. Writ petition is allowed. Rule made absolute in above terms. No costs.

At this stage, Advocate V.M. Deshpande makes a prayer that the effect and operation of this judgment should be stayed for a period of four weeks, to enable the respondent to take further appropriate steps in the matter. Advocate, for petitioners opposes this request. He states that the petitioners have already invited renders and they should be permitted to proceed further with the finalization thereof and also with issuance of the work order accordingly. He states that is respondent succeeds he should be reinstated back. However considering the fact that interim orders were operating in favour of the present respondent till today, I am inclined to maintain the position as on today. The petitioner to proceed with the opening the tenders however, they should not proceed further with issuance of the work order. The effect and operation of thus judgment is therefore stayed for a period of three weeks. Certified copy.