Md. Nazrul Islam Vs. Monzurul Islam Liton and others, 2009

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Md. Abdul Matin J

Md. Abdul Aziz J

Md. Nazrul Islam…………………………..Appellant

Vs.

Monzurul Islam Liton and others………Respondents

 

Judgment

April 17, 2009.

Cases Referred To-

45 DLR (AD) 69; Sharping Matshajibi Samabaya Samity Ltd. Vs. Bangladesh and others 39 DLR (AD) 85; Bangladesh, represented by the Secretary, Ministry of Establishment Division and others vs. Mahbubuddin Ahmed 50 DLR (AD) 154. 39 DLR (AD).

Lawyers Involved:

N. K. Saha, Senior Advocate, instructed by Mr. A. K. M. Shahidul Huq, Advocate-on-Record-For the Appellant.

Md. Nawab Ali, Advocate-on-record- For the Respondent No.1.

Not represented- For the Respondent No.2-5.

Civil Appeal No. 104 of 2005.

Judgment

                 Md. Abdul Aziz J. – This appeal, by leave, arises out of the judgment and order dated 30.07.2003 passed by a Division Bench of the High Court Division in Writ Petition No.1613 of 2003 making the rule absolute declaring the impugned order dated 10.11.2002 to have been passed without lawful authority and directing the writ-respondents to give the work order and licence to the writ-petitioner within 2 weeks from the date of receipt thereof in respect of train being Nos. 461 and 462 and 455/456.

2. The respondent No.1 as the writ-petitioner filed the writ petition challenging the said impugned order dated 10.11.2002 and for direction upon the writ-respondents to give final approval of his work order as mentioned in the letters dated 1.9.2002 and 12.9.2002 in order to give license to collect fare from the passengers and charges for the luggage and parcel etc. of train No.461/462 and 445/446 stating, inter alia, that the writ petitioner is the proprietor of Islam Ship Builders and Heavy Engineering. The Government of Bangladesh privatized all the trains of the country except the Inter-City trains to overcome excessive loss which were subsidized by the Government. The Government encouraged private sectors to come forward to rescue the losing concern. Pursuant to that policy the writ petitioner took lease of 10 trains such as namely, 21/21 Padma Rag Express, 481/482 local train. Both of them are currently running in the route of Lalmonirhat-Santahar-Lalmonirhat and also 15/16 Mahananda Express, 25/26 Nakshikanta Express and 491/492 local train currently running in the route of Chapainababgonj-Khulna-Chapainababgonj, Khulna-Goalanda -Khulna and Bonarpara-Shantahar-Bonarpara respectively. On 13.4.2002 Bangladesh Railway invited tender vide Notice No.COM/RCS/L/461/Pa: from the private sectors to lease out the commercial activities i.e., to collect fares-from the passengers and charges for the language and parcels etc. of train No.455/456 local train running in the route of Lalmonirhat-Burimary-Lalmonirhat and 461-462 local train running in the route of Lalmonirhat-Parbotipur-Lalmonirhat. The writ-petitioner collected the tender schedule for the same and dropped the tender on 18.5.2002. Although the writ petitioner became-the highest bidder amongst the two bidders, he on 11.8.2002 received a letter from the concerned authority asking him to increase the bid money of train No.411/412 and 453/454. The writ petitioner on 14:08.2002 in reply to that letter addressed to writ-respondent No.4 stated his inability to increase the bid money on the ground that the train No.411/412 and 453/454 run during the rush hours of the day, on the other hand, train No.461/462 and 455/456 would run only during off-peak hours for which it would be less profitable than that of the other trains. Writ-respondent No.4 wrote a letter bearing Memo No.COM/RCS/L/7-8/CRD-2/Pa: /P-2 to the writ respondent No. 2 confirming that the writ petitioner became the highest amongst the two bidders. In the said letter it was also stated that the writ-petitioner would pay 13.83% higher than the previous licence-holder and 77.78% higher than the average earning of the Bangladesh Railway. By the letter dated 14.08.2002 it was intimated that the Standing Committee in which the writ-respondent No.4 was also a member approved the tender and the approval of the Standing Committee was also approved by the writ-respondent No.3. On 12.9.2002 Assistant Director/PM-1, Bangladesh Railway wrote a letter bearing Memo No. RAIL/Pha: Ma: /LICENCE/ POSHIM/ ZATRI TRAIN/3/99-245 to the writ-respondent No.3 intimating that after consultation with Ministry of Communication writ-respondent No. 2 gave approval of the tenders including the tender submitted by the writ-petitioner and requested writ-respondent No.3 to take all necessary steps to grant licence. Although the writ-petitioner’s tender was approved twice the writ-petitioner was not given the licence or work permits to run the said trains. The writ-petitioner was expecting a positive result but abruptly on 10.10.2002 writ-respondent No.4 wrote a letter bearing Memo No.COM/RC/S/L/461-462/CRD-2 to the writ respondent No.3 alleging that in a meeting held on 14.8.2002 between the permanent committee and the two tenders it was decided to increase the bid money wherein the writ-petitioner, however, expressed his inability to increase the bid money although the second bidder agreed to pay only Tk.600/- more than that of the writ-petitioner. In the letter dated 10.112002 it was mentioned that in the meeting held on 14.8.2002 the permanent committee approved the second bid, whereas the same writ-respondent No.4 informed writ-respondent No.3 in its letter dated 1.9.2002 that the Standing Committee approved the bid of the writ-petitioner which was subsequently confirmed by another letter dated 12.9.2002,  the writ-petitioner further contended that the said letter is arbitrary, malafied and issued at the instigation of the interested quarter with ulterior motive just to harass and humiliate the writ-petitioner. That the writ-petitioner also filed a supplementary affidavit ascertaining that after receiving the complaint of the writ-petitioner vide letter dated 26.82002 (Annexure-E to the writ-petition) the Minister, Ministry-in-Charge of the Communication directed the Director General, Bangladesh Railway to inquire into the matter and take necessary action and pursuant to that the Additional Director General (Operation) inquired into the matter and submitted his report along with a forwarding on 28.112002. The Minister further directed the Director General to take necessary action in the light of the inquiry report and ultimately finding no fault with the tender of the writ-petitioner the authority directed to conclude the agreement with the writ-petitioner Islam Ship Builders and Heavy Engineering being the highest bidder.

3. The present respondent Nos.2-5 contested the said Writ Petition by filing affidavit-in-opposition stating, inter-alia that on 13.04.2002 Bangladesh Railway invited tender from the private sectors to lease commercial activities i.e., to collect fares from the passengers and charges for the luggage and parcels etc. of train Nos. 411/412, 453/954, 6455, 6455/456, 461/462 running in the route of Lalmonirhat-Burimari-Parbotipur Section; that 11 persons collected tender schedule but only two organizations submitted the tender namely, Islam Ship Builders and Heavy Engineering 60, Dilkusha Commercial Area, Dhaka and Banna Enterprise, Bambandanga Gabindha; that on 17.7.2002 standing committee sat in a meeting and crutinized those tenders and found that petitioner offered Tk.5,28.000/-per month which was less than Tk.1.02.060/-the trains used to earn while running in the said Section for which the standing committee requested the writ petitioner and M/s Banna Enterprise to remain present on 14.8.2002 in the office of the respondent No. 4; that as scheduled a meeting was held on 14.08.2002 and in the meeting both the bidders namely the writ petition and petitioner herein were present and both the bidders were requested bidders were to give new proposal in writing, but the writ petitioner in a written application intimated that it was not possible on their part to increase their rate more, whereas the other bidder M/s Banna Enterprise submitted an application before the committee to revise rate as Tk. 4590/- per coach trip, Tk. 170/- for per 3 Second Class, Tk. 750/- per Second Class Luggage, Tk.1000/- per Luggage Van. Tk. 4220/- per coach trip of train 455/456. Tk.605/- per S. Tk.800/- per S.A.R. Tk.1000/- per L. (Tk.4590+4220) =8810/- for per coach trip of both pair trains, Tk.17.620/-per day and Tk.528,600/- per month. So Tk.600/- more than that of the writ petitioner Islam Ship Builder and Heavy Engineering and under the above circumstances the Standing Committee recommended for the Second bidder i.e. Banna Enterprise, Bammandanga Gaibandha and as such the impugned letter dated 10.11.2002 has been issued which is not illegal, arbitrary and malafide.

4. Being aggrived by and dissatisfied thereby the respondent   No.1 as writ-petitioner moved the High Court Division by filing above Writ Petition 1613 of 2003 and obtained Rule. The learned Judges of the High Court Division after hearing the said Writ Petition by their judgment and order 30.07.2003 made the Rule absolute and directed the respondents to give the work order and licence to the writ petitioner within 2 weeks from the date of receipt of the order holding, inter-alia, that the action of the respondent No.4 was contrary to the principle of Administrative justice and was not at all fair and which could not be approved by any man of ordinary prudence.

5. The present appellant as 3rd party being aggrieved by as the highest bidder in the tender and dissatisfied with the impugned judgment and order passed by the High Court Division preferred the instant civil petition for leave to Appeal No.1213  of 2003 before this Division and obtained leave on 12.02.2005 on the following grounds:

“The tender floated by Bangladesh Railway on 13.04.2002 inviting bidders from the private sector to carry on commercial activities such as to collect fares from the passengers and charges for luggage and parcels etc. of local train No.455/456 running in the route of Lalmonirhat-Burimary-Lalmonirhat and local train No.461/462 running in the route of Lalmonirhat-Parbotipur-Lalmonirhat being tenders in respect of purely commercial contracts in exercise of the trading function of Bangladesh Railway and not in exercise of sovereign power by the Government and the writ petitioner has no legal right and is not entitled to invoke the writ jurisdiction for enforcement of commercial contracts, the High Court Division acted without jurisdiction in entertaining the writ petition in view of the principle of law laid down by the Appellate Division in the case reported in 39 DLR (AD) 85. The writ petitioner-respondent having signed the tender bid agreeing that he will abide by the terms of the tender and clause 5 of the tender schedule having stipulated: ‘?????????? ?????????? ?????? ?? ??? ??? ?? ??? ??????? ?? ????????? ?????? ?? ????? ???? ??????? ?????? ??????????? ??????? ??? ???? ???????? ?????????? ?????? ????????? ?? ??? ?????? ????? ?? ????? ????? ???????’ and the tender of the writ petitioner-respondent not having been accepted and the tender of the leave petitioner having been accepted vide letter dated 09.02.2003 as evidenced from Annexure-1 (e) to the affidavit-in-opposition filed by the respondent Nos.1 to 4 in the writ petition, the impugned order dated 10.11.2002 (Annexure-“F” to the writ petition) do not suffer from any infirmly, the High Court Division committed an error of law in not considering the stipulation contained in clause 5 of the tender schedule in accepting or rejecting any tender and also in not considering that the petitioner herein having acquired a vested right whose bid was accepted was not impleaded in the writ petition and therefore, the judgment and order of the High Court Division are not sustainable in law. The writ Petitioner claimed that he was the highest bidder and approval was given to his tender bid by letters dated 01.09.2002 and IM9.2002 (Annexures-“C” and “D” respectively to the writ petition) but the inter­departmental exercises not communicated to the writ petitioner, who is not also entitled to obtain a copy thereof, are not enforceable in law and no legal right can be founded on these inter-departmental communications and further, at the negotiation with both the tenderers the writ petitioner inclined to increased his bid amount while the leave petitioner  increased his bid amount above the bid amount of the writ petitioner and hence, the  writ petitioner cannot claim and right to obtain the work order and the licence and therefore, ‘the High Court Division committed an error of law in giving direction to issue work order and licence to the writ petitioner in view of the law laid down by the Appellate Drawn in the case reported in 45 DLR (AD) 69. The writ petitioner not having been accepted and no contract having been executed between Bangladesh Railway and the writ petitioner, there was no concluded contract with the writ petitioner and hence, the writ petitioner cannot claim any right merely by submission of the tender and therefore, the High Court Division committed an error of law in entertaining the writ petition. The High Court Division acting under Article 102 (2)(a)(ii) of the Constitution can only make a declaratory order and nothing more and unless it is required by law to do a do a particular thing it cannot direct the  authority to do a particular thing, as laid down in the case reported in 50 DLR (AD) 154 and therefore, the High Court Division committed an error of law in directing Bangladesh Railway to issue work order and license to the writ petitioner as Bangladesh Railway is, not required by any law so to do.”

6. Mr. N.K. Sana   the   learned   Senior Advocate, appearing for the appellant, at the time  of hearing  of the  appeal,  took us through the order of leave granted by this Division and contended that the writ-petitioner had no  legal right  and is not entitled to invoke the writ jurisdiction for enforcement of a commercial  contractual contract and claiming the work order and the licence to carry out the work and hence the High Court Division committed an error of law in making the Rule absolute directing the respondents to issue work order and licence to the writ-petitioner which is not sustainable in law and is liable to be set aside. He also argued that no contract having been executed and concluded between the Bangladesh Railway and the writ-petitioner, the writ-petitioner cannot claim any right merely by submission of tender and therefore the learned Judges of the High Court Division erred in law in entertaining the writ-petition and as such the impugned judgment is liable to be set aside. Mr. Saha, the learned Advocate relied on the cases of Sharping Matshajibi Samabaya Samity Ltd. Vs. Bangladesh and others reported in 39 DLR (AD) 85 and Bangladesh, represented by the Secretary, Ministry of Establishment Division and others vs. Mahbubuddin Ahmed reported in 50 DLR (AD) 154.

7.  In the decision reported in 39 DLR (AD) 85, it   is   held   that   since   no   contract   was concluded either with the writ-petitioner or with the present leave-petitioner exercising sovereign power of the State by the respondents, Article 102 of the Constitution cannot be invoked. In the Case reported in 45 DLR (AD) 69 our Appellate Division held that,”…………matters which need evidence to be taken and surely cannot be granted in the summary jurisdiction under Article 102.”

8. None appear on behalf of the respondents in this appeal.

9. Admittedly no contract was reached between the writ-petitioner and the respondents on behalf, of  Bangladesh Railway nor any commercial contract even if concluded is amended to writ jurisdiction for its enforcement. The learned Judges of the High Court Division thus clearly committed an error of law in making the Rule absolute and directing the respondents to issue work order in favour of the writ-petitioner and as such the impugned judgment and order is liable to be set aside.

10.  While arguing Mr. N. K. Sana having been asked by us candidly admitted that no contract was also concluded by the respondents with the appellant. The learned Advocate claimed that the appellant took part in the bid and became the highest bidder. But no contract having been made between the appellant and the respondent, the appellant is also not entitled to get any relief in the appeal. The writ-petition itself for enforcement of commercial contract is not maintainable.

Accordingly, the appeal is disposed of and the judgment and order of the High Court Division is set aside.

Ed.

Source : 17 BLT (AD) (2009) 198