M/S. Ashraf & others Vs. Md. Zahangir Alam & others

 

Appellate Division Cases

 

(Civil)

 

PARTIES

M/S. Ashraf & others ……………….Appellant. (in C.A.No.184 of 2005)

 

 

Bangladesh, represented by the Secretary, Ministry of Work and

Housing, Dhaka………………….. Appellant.(in C.A.No.185 of 2005)

 

-Vs-

 

Md. Zahangir Alam & others ……………….Respondents. (in C.A.No.184 of 2005)

 

M/s. Ashraf and sons and another ……………….Respondents. (in C.A.No.185 of 2005)

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment  Dated: 21st January 2008

Since the highest price quoted was not satisfactory further quotations were invited by calling tenders consecutively for 5(five) times. The writ petitioner along with others participated in the 4th and 5th call of tenders……………. (2)

Leave was granted to consider the following submissions whether the writ petitioner having deposited and paid for the bid money in respect of 5 items out of 14 items and taken delivery of the same as per the decision of the writ respondent No.2 vide Annexure-C series to the writ petition was competent to file the writ petition under reference for setting aside the notice of the 6th call of tender by the writ respondent No.2 for the remaining 9 items of the 5th call of tender and also for a direction for issuing work order in respect of the aforesaid 9 items; whether the writ court acted in accordance with law in negotiating the price for the said items between the parties and in directing the writ respondent Government to accept the price so negotiated by the court during hearing………………………………………. (5)

We have examined the impugned judgment and considered the arguments and the materials on record. The points raised and argued by the learned counsels for the appellants have a good deal of force. In terms of clause 9 of the relevant Tender Notice the writ respondent Government was not obliged to accept the bid of the writ petitioner respondent in toto or reject the same in toto. Writ respondent Government had the option to accept the bid in part. Hence the writ respondent Government by 5 letters dated 18.3.2004 vide Annexure-C series to the writ petition validly accepted the price offered by the writ petitioner in respect of 5 items out of 14 items. The writ petitioner having paid the price for the said 5 items and taken delivery of the same was debarred from raising any claim in relation to the remaining 9  items and accordingly the rule was liable to be discharged. Further the writ petition was also not maintainable for suppression of the material fact that the writ petitioner accepted the decision of the writ respondent Government without any demur vide Annexure-C series to the writ petition and took delivery of the said 5 items by paying the agreed price……………. ..(9)

Before we part with the matter, we would like to record our utmost disapproval and dissatisfaction at the conduct of the learned Judges of the writ Court in negotiating the price of the remaining 9 items by substituting the decision of writ-respondent Government for the same and thereafter directing the said respondent Government to allow the writ petitioner to take delivery of the remaining 9 items by accepting such negotiated price inasmuch as negotiation of sale price between the parties never falls within the domain of the Court ………………..(10)

T.H. Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record ……………………….For the Appellant (in C.A.No. 184 of 2005)

Monsur Habib, Additional Attorney General, instructed by A.S.M. Khalequzzaman, Advocate-on-Record. ……………For the Appellant (in C.A.No. 185 of 2005)

Syed Amirul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record ………………….For Respondent No. 1 (in C.A.No. 184 of 2005)

Syed Amirul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record………………. For the Respondents (in C.A.No. 185 of-2005)

Respondent Nos.6-7: (in C.A.No. 184 of 2005)…………………. Not represented.

Civil Appeal Nos. 184-1 85 Of 2005

(From the judgment and order dated 04.01.2005 passed by the High Court Division in Writ Petition No. 1463 of 2004.)

JUDGMENT

Md. Joynul Abedin J: These two appeals by leave are directed against the common judgment and order dated 04.01.2005 passed by a Division Bench of the High Court Division in Writ Petition No. 1463 of 2004 making the Rule absolute.

2. The short fact is that Md. Zahangir Alam, the respondent No.l in Civil Petition No.223 of 2005, filed Writ Petition No. 1463 of 2004 stating, inter alia, that the Ministry of Housing and Public Works decided to sell out 374.31 metric tons of old Iron and steel materials lying in the godowns in Sylhet P.W.D. Zone. Accordingly auction notices inviting quotations of 14 items of the aforesaid materials were published by the writ respondent No.2, Executive Engineer, Sylhet P.W.D. Division, Sylhet. Since the highest price quoted was not satisfactory further quotations were invited by calling tenders consecutively for 5(five) times. The writ petitioner along with others participated in the 4th and 5th call of tenders. His quotations in the 5th call were found valid and on 28.12.2003 the writ petitioner was declared as the highest bidder by the tender committee as he was found to have quoted the highest price in all 14 items. Thereafter the tender committee forwarded all the tenders for approval by the zonal disposal committee headed by the writ respondent No.5, Additional Chief Engineer, P.W.D. Chittagong Zone and thereafter on receiving decision of the said committee the respondent No.2, the Executive Engineer, Sylhet P.W.D. Division asked the writ petitioner in 5 separate letters dated 18.03.2004 (vide Annexure-C series to the writ petition) to deposit the bid money in respect of 5 items only. The writ petitioner accordingly deposited the bid money. But the writ petitioner was surprised to know that the writ respondent No.2, Executive Engineer, published fresh auction notice inviting quotations for sale of 252.409 metric tons of M.S. Rods and 40.243 metric tons of M.S. bars as the remaining materials of the 5th call and fixed 28.03.2004 for submitting fresh tenders without any notice to the writ petitioner. The writ petitioner, therefore, filed the writ petition challenging the auction notices of the 6th call dated 6.3.2004 and obtained rule.

3. Writ respondent Nos.2 and 3 as well as the writ respondent No.7 M/S. Ashraf and sons opposed the rule by filing separate affidavit-in-opposition denying the material statements in the writ petition contending, inter alia, that the writ respondent Government in exercise of its power under clause 9 of the Tender Schedule accepted the price offered by the writ petitioner in respect of 5 items only and accordingly asked him vide Annexure-C series to the writ petition to deposit the bid money and take delivery of the said 5 items and the writ petitioner having complied with the same without any demur was estopped from filing the writ petition under reference. Accordingly the rule was liable to be dismissed.

4. The High Court Division thereafter by the impugned judgment dated 4.1.2005 made the rule absolute directing the writ respondent Government to accept the price negotiated by the court during the hearing of the rule at the rate of Tk.18,500/- per metric ton for M.S. Rod and M.S. Flat Bar as mentioned in item Nos.l, 2, 3, 6,9, 10, 13 and 14 and also to accept the price offered by the writ petitioner for item No.7. Consequently the writ respondent Government filed Civil Petition for Leave to Appeal No.223 of 2005 and writ respondent No.7 M/s. Ashraf & Sons (highest bidder in the 6th call) filed Civil Petition for Leave to Appeal No.490 of 2005.

5. Leave was granted to consider the following submissions whether the writ petitioner having deposited and paid for the bid money in respect of 5 items out of 14 items and taken delivery of the same as per the decision of the writ respondent No.2 vide Annexure-C series to the writ petition was competent to file the writ petition under reference for setting aside the notice of the 6th call of tender by the writ respondent No.2 for the remaining 9 items of the 5th call of tender and also for a direction for issuing work order in respect of the aforesaid 9 items; whether the writ court acted in accordance with law in negotiating the price for the said items between the parties and in directing the writ respondent Government to accept the price so negotiated by the court during hearing for item Nos.1,2,3,6,9,10,13 and 14 at the rate of Tk.18,500/- per metric ton for M.S. Rod and M.S. Flat Bar and further to accept the bid offer of the writ petitioner for item No.7 and whether the writ petition was maintainable being hit by the principle of estoppel and for suppression of the material fact that the writ petitioner paid for the aforesaid 5 items and took delivery of them in tenns of Annexure-C series to the writ petition without any objection.

6. We have heard Mr. T.H. Khan, the learned Counsel for the appellant in C.A.No.184 of 2005 and Mr. Monsur Habib, the learned Additional Attorney General for the appellant in C.A.No. 185 of 2005 and Mr. Syed Amirul Islam, the learned Advocate for respondent No.l in C.A.No.184 of 2005 and for the respondents in C.A.No.185 of 2005 and perused the impugned judgment and other connected papers.

7. The learned Counsels for the appellants strenuously argue the aforesaid points and in elaboration thereof submit that the writ petitioner respondent Zahangir Alam having accepted the decision of the writ respondent Government as contained in Annexure-C series to the writ petition and paid for the aforesaid 5 items out of 14 items of the 5th call of tender and having taken delivery of them without any objection was estopped from filing the writ petition in question and the rule issued therein was therefore liable to be discharged summarily. It is also argued that the learned Judges of the writ court acted in excess of their jurisdiction in negotiating the price and directing the writ respondent Government to accept such price for the aforesaid 9 items and as such the impugned judgment is liable to be set aside. It is further argued by the learned Counsels for the appellants that since the writ respondent Government was empowered in tenns of clause 9 of the Tender Schedule to accept or reject any or all the offer of the writ petitioner the writ respondent Government acted within its right in accepting the offer of the writ petitioner in respect of 5 items only and issuing notices for the 6th tender for the remaining 9 items and the writ petitioner having taken delivery of the said 5 items without any reservation the writ petition challenging the auction notices of the 6th call for the remaining 9 items was liable to be dismissed in lernini being incompetent and frivolous.

8. The learned counsel for the writ petitioner respondent however argues in support of the impugned judgment and the reasonings assigned in support of the same.

9. We have examined the impugned judgment and considered the arguments and the materials on record. The points raised and argued by the learned counsels for the appellants have a good deal of force. In terms of clause 9 of the relevant Tender Notice the writ respondent Government was not obliged to accept the bid of the wril petitioner respondent in totoor reject the same in toto. Writ respondent Government had the option to accept the bid in part. Hence the writ respondent Government by 5 letters dated 18.3.2004 vide Annexure-C series to the writ petition validly accepted the price offered by the writ petitioner in respect of 5 items out of 14 items. The writ petitioner having paid the price for the said 5 items and taken delivery of the same was debarred from raising any claim in relation to the remaining 9 items and accordingly the rule was liable to be discharged. Further the writ petition was also not maintainable for suppression of the material fact that the writ petitioner accepted the decision of the writ respondent Government without any demur vide Annexure-C series to the writ petition and took delivery of the said 5 items by paying the agreed price.

10. Before we part with the matter, we would like to record our utmost disapproval and dissatisfaction at the conduct of the learned Judges of the writ Court in negotiating the price of the remaining 9 items by substituting the decision of writ-respondent Government for the same and thereafter directing the said respondent Government to allow the writ petitioner to take delivery of the remaining 9 items by accepting such negotiated price inasmuch as negotiation of sale price between the parties never falls within the domain of the Court.

11. For the reasons stated above the appeals are allowed without any order as to cost.

Source : V ADC (2008), 189

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