M/s Micro Electronic Limited Vs. M/s Rahimafroz Batteries Limited

Appellate Division Cases

(Civil)

PARTIES

M/s Micro Electronic Limited…………………. Petitioner

-vs-

M/s Rahimafroz Batteries Limited and other ……………Respondent

JUSTICE

Md. Ruhul Amin. J

K. M. Hasan. J

Md. Fazlul Haque. J

JUDGEMENT DATE: 28th October 2002

High Court Division is quite competent to make direction to the person performing

functions in connection with the affairs of the Republic or of a local authority to refrain from doing thing not permitted by law or to do something required by law to do and that for the purpose of effective compliance of the direction so given the High Court division is quite within its jurisdiction to make further direction to see that its direction is being executed or to make its direction effective …………(10)

Civil Review Petition No. 31 of 2001 (From the Judgment and Order dated February 6,

2001 passed by the Appellate Division in Civil Petition For leave to Appeal No, 32 of 2001)

Syed Ishitaq, Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate on

record ……………..For the Petitioner

Khandaker Mahbubuddin Ahmed, Senior Advocate, instructed by A. S. M.

Khalequzzaman, Advocate on Record …………………For respondent No. 1

Not represented…………….Respondent Nos. 2-5

JUDGMENT

1. Md Ruhul Amin, J: – This petition by the writ respondent No. 4- petitioner is for review of the judgment and order dated February 6, 2001 dismissing the petition for leave to appeal No. 32 of 2001 of the petitioner.

2. The writ petition was filed by the Respondent No. 1 Impugning letter of intent issued by the respondent No. 2 (PDB) for the supply, installation and commissioning of Solar

Photovolitc Power Supply System in Bilaichari, Juraichari and Barkal Upazila Head Quarters and its surrounding in Rangamati.

3. The writ petition was filed by the Respondent No. 1 stating inter alia, that he and

3 others dropped bid for the execution of work as stated hereinbefore. The evaluation committee found the present petitioner and another non responsive and that found Respondent No. 1 and another responsive but later on PDB upon reversing its earlier decision as to petitioner herein accepted his bid as responsive bid. In the background of the aforesaid fact the Respondent No. 1 represented to the Chairman of the PDB protesting its action but inspite of that PDB and its officials issued letter of intent on 17tn April, 2000 to the present petitioner. In that state of the matter the Respondent No. 1 filed Writ Petition impugning action of the PDB and its officials in the matter of issuing letter of intent for executing of the work, for which bid was called and writ petitioner was

responsive, in favour of the present petitioner (Respondent No. 4 in the writ petition) seeking declaration that letter of intent has been issued in favour of Respondent No. 4 without lawful authority and that letter of intent issued in favour of Respondent No. 4 be cancelled or withdrawn.

4. It may be mentioned letter of intent dated 17.4.2000 was issued in favour of present

petitioner in respect of first phase of the contract. There are in all three phases of the

Contract. The rule was opposed by the present petitioner, The Rule was opposed by the writ Respondent Nos. 1 and 4.

5. The High Court Division made the Rule obtained in writ petition No. 2483 of 2000

absolute by the judgment and order dated November 27, 2000 making direction to the

Respondent No. 2 (PDB) to award one of the remaining phases of the work as stated here

over to the Respondent No. 1 if he agrees to execute the same at the rate writ respondent No. 4 has agreed to execute the 1st phase of the work. The aforesaid direction was made by the High Court division in the light of a resolution taken by the Respondent No.2 (PDB) to the effect that respondent No. 1 and another may be offered 2™ and 3 r ” phases of the work if they are agreeable to execute the work at the rate offered by the lowest bidder i.e. petitioner herein.

6. As against the aforesaid judgment and order of the High Court Division the present

petitioner filed civil petition for leave to Appeal no. 32 of 2001. This Division by the judgment and order dated February 6, 2001 dismissed the same making amongst others observation that PDB is not under obligation to issue the work order to the petitioner for the next phases in view of the resolution of the PDB noticed by the High Court Division and that it is the PDB who can question the direction given by the High Court Division while disposing of the writ petition.

7. The learned Counsel for the petitioner submits that while dismissing the petition for

leave to appeal this court failed to address itself to the question that relief given by the High Court division to the respondent No. 1 was not sought for in the writ petition and as such the relief so given being beyond the relief sought for in the writ petition was consequently not legal. It has also been submitted that this court did not consider that direction given by the High Court Division for awarding one of the phases of the contract to the respondent No. 1 amounts to modification of the contract, in respect where of letter of intent has already been given to the petitioner, although of 3 phases but a composite one and thereby the High Court Divisor has substituted a contract of different kind in place of original contract. It has further been submitted that direction of the High Court Division to the Respondent No.2 to award one of the phases of the contract to the

Respondent No. 1 being of the nature of act of the arbiter is not sustainable in law as because the High Court Division in writ jurisdiction is not authorized to arrogate to itself the power of arbiter.

8. The learned Counsel appearing for the Respondent No. 1 has submitted that High Court Division in making the direction to the Respondent No.2 for issuing letter of intent as to one of the rest 2 phases of the contract at a rate offered by the petitioner herein was quite within its jurisdiction as because in the background of the materials on record the High court Division was convinced that respondent No. 1 is entitled to letter of intent at least one of the phases of the contract and thereupon made the direction to the respondent No.2 so that said respondent gives effect to the resolution made for giving one of the phases of the contract to respondent No.l The learned Counsel has further submitted that while disposing of the writ petition the High Court Division noticed irregularities

on the part of Respondent No.2 and its officials in the process of making selection of

the Contractor for the implementation of the contract and that also noticed the resolution that was adopted by the Respondent No . 2 for awarding one of the phases of the contract to the Respondent No. 1 at a rate offered by the present petitioner and thereupon made the direction only for the purpose of making it obligatory for the Respondent No.2 to implement its resolution and as such in giving the direction to the PDB while disposing of the writ petition the said Division has not committed any illegality or error.

9. It is seen from the materials on record that on April 17. 2000 Respondent No. 2 issued

letter of intent in favour of the present petitioner in respect of first phase of the work. There is nothing on record that Respondent No.2 is under obligation for issuing letter of intent for the other phases of the contract in favour of the present petitioner on completion of the first phase of work allotted to him and this fact is evidenced by the resolution adopted by the Respondent No.2 to the effect that the other 2 phases ot work at a rate offered by the present petitioner may be offered to the Respondent No. 1 and another contractor who were found technically responsive in case they are agreeable

to execute the work at the said rate.

10. In the background of the facts stated hereinbefore we are of the view that High Court

Division in making the Direction to the Respondent NO.2 to offer one of the remaining

phases of contract to the Respondent No.l did neither modified the original contract for which bids were invited or in other words has not substituted a contract different from the original contract, nor has act as an arbiter in making the order for issuing letter of intent to the Respondent No.l for one of the remaining phases of the contract since the said direction has been made in the light of the resolution taken by the Respondent No.2 The other contentions that High Court Division has granted relief to the Respondent NO.l although not prayed for in the writ petition and that in dismissing the leave petition that aspect of the matter was not noticed by the Division are also not well founded as because the High Court Division has made the direction for making it obligatory of the Respondent No.2 to implement its resolution which it took in the background of the irregularity committed in selecting the petitioner herein as one of the responsive technical bidder. Moreover the High Court Division is quite competent to make direction to the person performing functions in connection with the affairs of the Republic or of a local

authority to refrain from doing thing not permitted by law or to do something required by law to do and that for the purpose of effective compliance of the direction so given the High Court division is quite within its jurisdiction to make further direction to see that its direction is being executed or to make its direction effective. In view of the Discussions made hereinabove the review petition is dismissed.

Ed

Source: I ADC (2004),485

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