Chairman, Board of Investment and others Vs. Bay Trawling Limited and others

Chairman, Board of Investment and others (Petitioner)

Vs.

Bay Trawling Limited and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

ATM Afzal CJ

Latifur Rahman J

Md. Abdur Rouf J

Bimalendu Bikash Roy Chowdhury J 

Judgment

January 28, 1997.

The Evidence Act 1872 (I of 1872) Section 115

The question of promissory estoppel may not arise in this case but in view of the fact that the project was approved earlier and under that approval respondent no. 1 acted after taking loans from the Government financial institutions and other banks, it now appears that the Government could not be allowed to work inconsistently, whimsically and capriciously to the prejudice of respondent no. 1 when the project was approved by another lawful Government agency at an earlier point of time…………(6)

Lawyers Involved:

B Hossain, Advocate-on-Record — For the Petitioner.

Rafique-ul-Haque, Senior Advocate, instructed by Md. Wahidullah, Advocate-on-Record— For the Respondent.

Civil Petition for leave to appeal No. 652 of 1996.

(From the Judgment and order dated 3-7-96 passed by the High Court Division in Writ petition No. 1474).

Judgment

 Latifur Rahman J.- This petition is against the Judgment and order passed by a Division Bench of the High Court Division in Writ Petition No. 1474 of 1995 on 3-7-96 making the Rule absolute. The respondents of the writ petition have filed this leave petition against the Judgment and order of the High Court Division.

2. Respondent No. 1, Bay Trawling Limited submitted a project for manufacturing of fishing trawlers. The reject was approved in the meeting of the Investment Board of the Department of Industries held on 3-1-78. The project is 100% export oriented one. After the approval of the project by the Investment Board, Bangladesh Shilpa Bank sanctioned a long term loan to acquire 8 Deep Sea fishing Trawlers in two phases by respondent No. 1 in a local Shipyard. The project was also financed by other Banking institutions of the country. After sanction of the project in 1978-79, letters of credit were opened for importing necessary equipments, engines and fishing components from abroad. The consignments opened in 1980-81, arrived at Chittagong Port in March, 1983. But respondent No.1 could not clear those articles as the Custom Authority demanded normal duties and refused to allow concessional rate for the imported machineries. Due to the delay in custom clearance there was a delay of 2/3 years in clearing the consignments. The machineries were released in 1984 and there was some delay due to the dispute between the Banks and respondent No.1. In this process of negotiations with the Custom Authority and Bangladesh Shilpa Bank and Bank of Credit and Commerce International, there was a delay of 9/10 years for resumption of the constructions of the fishing trawlers till 1989-90. The first item of imported machineries arrived in 1984. After sanction of additional loan by Bangladesh Shilpa Bank, letters of credit for import of second lot of machineries were opened and the goods arrived at Chittagong Port in the middle of 1990. On May 13th 1992, respondent No.1 applied for issuing fishing licenses. The department of fishing by their letter dated 27-5-92 informed respondent No.1 that the application for issuing fishing license could not be considered favourably on the plea bf the government’s decision of 1984-85 restricting introduction of new trawler in the Bay of Bengal. Ultimately, by the impugned letters dated 20-10-94 and 24-11-94 the earlier approval was cancelled and the Government refused to issue licenses for 4 trawlers of respondent No. 1 for catching shrimp in the Bay of Bengal.

3. An affidavit-in-opposition was filed by petitioner No. 2, the Secretary of Ministry of Fisheries and livestock, Government of Bangladesh wherein it was contended that as a policy decision the government had taken a decision that after 1988 no license would be given to the new trawlers imported by a businessman and consequently respondent No.1 was not given license as per the decision of the Government as respondent No.1 failed to complete the project before the new policy of the Government. The project though approved in 1978-79, respondent No.1 could not be granted license under Marine and Fisheries Ordinance, 1983. The other respondents in the writ petition supported the case of the present respondent No.1 by filing separate affidavits-in-opposition contending that if license is not given then not only respondent No.1 but Bangladesh Shilpa Bank will also suffer.

4. Mr. B Hossain learned Deputy Attorney-General appearing for the petitioners submits that there being no promise made by the Government to issue license in favour of respondent No.1 the plea of promissory estoppel can not be raised against the Government and the learned Judges of the High Court Division erred in law in relying on the principle of promissory estoppel in this case.

5. Without entering into the question of promissory estoppel it can be said that the project of respondent No.1 for manufacturing of fishing trawlers was approved by the Investment Board of the Department of Industries on 23-1-78. Thereafter Bangladesh Shilpa Bank and other financial institutions sanctioned long term loan to respondent No.1 for acquiring deep sea fishing trawlers in two phases for manufacturing in a local shipyard. It is on record that letters of credit were opened in due time and the machineries arrived in due time but due to delay in custom clearance and other formalities there was delay and the construction of trawlers were delayed for long 9/10 years. Respondent No. l is project was duly approved on 23-1-78 but due to unforeseen circumstances beyond the control of the respondent there was delay for which respondent No.1 was not at all responsible. The project having been approved by the Investment Board earlier, the subsequent decision taken by the Government in the meeting of 1-8-94 to cancel the approval given earlier does not appear to be based on sound and proper reasoning.

6. Strictly speaking, the question of promissory estoppel may not arise in this case but in view of the fact that the project was approved earlier and under that approval, respondent No. 1 acted after taking loan from other government financial institutions and other Banks, it now appears to us that the Government could not be allowed to work inconsistently, whimsically and capriciously to the prejudice of respondent No.1 when the project was approved by the another lawful Government agency at an earlier point of time. Considering the facts and circumstances of the case, we do not like to interfere with the Judgment and order of the High Court Division.

Accordingly, the petition is dismissed.

Ed.

Source: 51 DLR (AD) (1999) 79

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