Bangladesh Ship Builders Association Vs. Government of Bangladesh and others, 2 LNJ (2013) 603

Case No: Writ Petition No. 4021 of 2010

Judge: Sheikh Hassan Arif,

Court: High Court Division,,

Advocate: Mr. Ajmalul Hossain QC,Mr. Nakib Saiful Islam,,

Citation: 2 LNJ (2013) 603

Case Year: 2013

Appellant: Bangladesh Ship Builders Association

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction, Locus Standi,

Delivery Date: 2010-08-11

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Nazmun Ara Sultana, J.
And
Sheikh Hassan Arif, J.

Judgment
11.08.2010
 
Bangladesh Ship Builders Association
..... Petitioner.
       -Versus-
Bangladesh and others
.... Respondents
 
 
Constitution of Bangladesh, 1972
Article 102
Considering the cited reported cases and the fact that the petitioner association is a registered association under the Companies Act espousing the cause of its members, there is no reason to disallow its right to audience under writ jurisdiction for challenging the impugned decision as the impugned decision directly affected the interests and rights of its members to participate in the open tender. Furthermore, just because the names of one or two of its members have not been mentioned in the cause title of the writ petition as petitioners, the locus standi should not be denied when we are convinced that the petitioner-association in this case is bonafide in espousing the cause of it’s members. Besides, the impugned decision being a specific decision for specific procurement, it cannot be a policy decision as suggested by the learned Deputy Attorney General. Therefore, this writ petition is maintainable. . . .(6)
 
Constitution of Bangladesh, 1972
Article 102(2)
Public Procurement Act (XXIV of 2006)
Sections 32(1) and 68
The ECNEC or any executive authority, how high so ever, can not grant any benefit in favour of any one at its sweet will. It will have to act in accordance with law, and in the instant case the said law is Public Procurement Act, 2006. Since the ECNEC has decided in the instant case to do direct procurement not on mechanical or economic ground as provided by section 32(1), we are of the view that it has acted illegally. The impugned decision does not even show any urgent state necessity or disastrous event to justify direct procurement under section 68. The impugned decision has not only affected the interests of prospective ship-builders in this country, it has deprived the members of the petitioner of their right to participate in the tender for no fault of them. Thus, we hold that the impugned decision does not come under the purview of exceptions as provided by section 32 and 68, and as such we are inclined to hold that the same is without lawful authority and of no legal effect. . . .(10)
 
Dada Match Workers Union Vs. Bangladesh, 29 DLR 1889; Bangladesh Shangbadpatra Parishad Vs. Government of Bangladesh, 43 DLR (AD) 126; Bangladesh Election Association Vs. Bangladesh, 46 DLR 221; Prof. A Rahim and others Vs. Ministry of Industries and others, 7 BLT (AD) 313; Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir, AIR 1980 SC 1992; Mohiuddin Farooque Vs. Bangladesh and others, 17 BLD (AD); Government Employees Welfare Association Vs. Bangladesh, 46 DLR 426; 51 DLR (AD) 121; Ramana Dayaram Shetty Vs. Internationl Airport Authority, AIR 1979 SC 1628 ref.

Mr. Nakib Saiful Islam, Advocate
… For the petitioner
Mr.Azmalul Hossain Q,C, with
Mr. Saifur Rashid, Advocates
. . .For Respondent No. 10
Mr. Md. Mozibur Rahman, Advocate
… For the Respondent Nos. 1,3 & 11

Writ Petition No. 4021 of 2010
 
JUDGMENT
Sheikh Hassan Arif, J:
 
Rule was issued challenging the legality of the impugned decision taken in the  17th  meeting of ECNEC held on 22.12.2009 for procurement/construction of four Nos. 108 TEU Self Propolled Multipurpose container ships by spending Tk. 137,79,00,000/- engaging Khulna Shipyard and Chittagong Dry Dock without inviting any Tender.
 
Short facts, relevant for the disposal of the Rule, are that the petitioner Bangladesh Ship Builders Association is an Association of ship builders in Bangladesh and the Association is registered with the joint stock companies  and firms. The members of the Association are engaged in ship-building, and some of them have already acquired high reputation by exporting ships constructed/built by them. The Government having taken decision to procure four  108 TEU multipurpose container vessels  (hereinafter called“ the said vessels), it obtained report from BUET through Project Evaluation Committee which in its meeting held on 29.06.2009 decided, amongst others,  to float tender in this regard. Subsequently, on 22.12.2009, in a meeting of the Executive Committee for National Economic Council (ECNEC), the project for procuring the said vessels has been  approved and the procurement   cost has been determined as Tk. 137,79,00,000/-. However, in the said meeting the  ECNEC took the impugned decision for  procuring the said vessels directly from Khulna Ship-Yards and Chittagong Dry Dock, two government owned ship builders, without any tender, and respondent No 11 has communicated the same to the concerned authorities vide  letter dated 11.01.2010. Being aggrieved by this, the petitioner association moved this court and obtained the rule. The rule is contested by respondent No. 1,3,5 10 & 11, however, respondent No. 10 and 11 have filed separate Affidavits-in- Opposition, although the contentions of the contesting respondents are almost same.
 
Mr. Nakib Saiful Islam, the learned Advocate for the petitioner, submits that the provisions of Public Procurement Act 2006 (“the said Act”)  and the Rules framed thereunder, namely Public Procurement Rules 2008, made it mandatory for the government procurement authorities of Bangladesh to do procurements through open public tender except in few cases specifically provided by the said Act. He submits that only under situations mentioned in section 32 and section 68 of the said Act, the procurement authority can deviate from the mandatory procurement by open tender. However, he submits, the impugned decision to procure the said container vessels directly from Khulna Shipyards and Chittagong Dry Dock grossly violated the said mandatory provisions as the decision  does not come under the categories of exceptions as provided by section 32 and section 68.
 
Mr. Md. Mojibur Rahman Miah, the learned Deputy Attorney General appearing for respondent Nos. 1,3 & 11, submits that the petitioner association being not a person aggrieved as provided under Article 102 of the constitution it does not have locus standi to move this Writ Petition  against the impugned  decision in a representative capacity. In this regard he refers to some decisions of this court, namely Dada Match Workers Union Vs. Bangladesh reported in 29 DLR, page-188, Bangladesh Shangbadpatra Parishad Vs. Government of Bangladesh reported in 43 DLR (AD), page-126, and Bangladesh Electrical Association Vs. Bangladesh reported in 46 DLR, page 221, and mainly relies on Shangbad Patra Parishad Case. He further submits that the impugned decision is a policy decision of the Government and as such the same is not amenable to writ jurisdiction as held by our apex Court in Prof. A. Rahim and others Vs. Ministry of Industries and others reported in 7 BLT (AD), page-313. Mr. Azmalul Hossain Q.C, the learned Senior Counsel representing respondent No. 10, submits that the project will economically benefit the country as it is evident from the discussion in the impugned decision and as such ECNEC can avoid tender procedure for greater public interest and the interest of the country. He submits that for public interest and  greater interest of the country, the government has the right to negotiate with any individual for procurement and in this regard he refers to an Indian Supreme Court decision, namely  Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir reported in AIR 1980 S C-1992. The learned Advocates for respondents further submit that the impugned decision  comes under the exception provided in section 32(1) ( M) (E) and as such the decision in no way has violated the provisions of the said Act. In reply to objections as regard standing of the petitioner, Mr. Nakib Saiful Islam refers to the landmark decision of our appex court in Dr.  Mohiuddin Farooque Vs. Bangladesh and others reported in 17 BLD (AD) page-1 and submits that after this decision our Appellate Division has expanded the concept of locus standi and came out of the traditional rigid view of “person aggrieved”. He submits that the petitioner association being a registered association of its members under Company Act, it has sufficient interest to move this Writ Petition for and on behalf of its members against a gross default or abuse by the executives.
 
Perused the Writ petition, Affidavit-in-Opposition and papers as annexed thereto and considered the submissions made by the learned Advocates. Since the question of Locus standi has been seriously raised by the learned Deputy Attorney General, we need to address the same first although this issue has by this time been settled by our appex court in Dr. Mohiuddin Farooque’s case as cited by the learned Advocate for the petitioner. In Dr.Mohiuddin Farooque’s case the case of  Shangbadpatra Parishad has been considered and our Appellate Division moved forward leaving behind the traditional view of “person aggrieved” as formulated in the Shangbad Patra Parishad case and held that persons with sufficient interest, not being a busy body, should be entitled to have audience under writ jurisdiction challenging the illegality committed by the State and its machineries. His Lordship Justice Mostafa Kamal, while delivering the main judgment, observed that the Shangbadpatra Parishad case was not an authority even for the proposition that an association could never be a person aggrieved if it espoused the causes of its members in a representative capacity. His Lordship made the point with the following observation (at page-18):

“With the power of the people looming large behind the constitutional horizon it is difficult to conceive of Article 102 as a vehicle or mechanism for realizing exclusively individual rights upon individual complaints. The Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power of the people on behalf of the people, the people will always remain the focal point of concern of the Supreme Court while disposing of justice or propounding any judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words “any person aggrieved” meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the Constitution.”
 
Apart from above, in some other cases also this court has allowed locus standi to the persons having sufficient interests. As for example, in Bangladesh Retired Government Employees Welfare Association Vs. Bangladesh reported in 46 DLR page-426, the High Court Division has allowed locus standi to an Association of retired government employees to espouse the causes of its members. Although this decision has been over- ruled by the Appellate Division on a different point [51 DLR (Ad) page-121], the petitioner-Association’s locus-standi as allowed by the High Court Division was not interfered with. Resonating the words of Justice Naimuddin Ahmed in the above mentioned Retired Government Employees Case [46 DLR-426], we like to hold that the Constitution of our country is not a morbid document but a dynamic instrument capable of being interpreted and applied in the ever-changing socio-economic context of society. Therefore, to make it dynamic in the practical sense, the pedantic and lexicographic interpretation of the words “ person aggrieved” should, as far as possible, be avoided if it can be done without causing repugnancy  to a specific provision of the Constitution. In the instant case, we also do not think that by expanding the meaning of the words “ person aggrieved” we are causing any repugnancy to any provision of the Constitution.  Considering the above reported cases and the fact that the petitioner association is a registered association under the Companies Act espousing   the  cause of its members, we do not find any reason to disallow it right to audience under writ jurisdiction for challenging the impugned decision as the impugned decision directly affected the interests and rights of its members to participate in the open tender. Furthermore, just because the names of one or two of its members have not been mentioned  in the cause title of the writ petition  as petitioners, the locus standi should not be denied when we are convinced that the petitioner-association in this case is bonafide in espousing the cause of it’s members. Besides, the impugned decision being a specific decision for specific procurement, it can not be a policy decision as suggested by the learned Deputy Attorney General.  Therefore, we hold that this writ petition is maintainable.
 
Now, as to the merit of the case, it appears that section 3 of the said Act provides for applicability of the provisions of the said Act in procurements by spending government fund, and section 4 has given the provisions of the said Act over-riding effect. Section 31 provides for open-tender procedure as a priority in public procurement, however, section 68 provides that in case of urgent state necessity or to face any disastrous event, government, in public interest, can take recourse to direct procurements  in accordance with section 32 or any other method. Sub section (2) of the section 68 further emphasises that the government will procure as per provisions of the said Act unless different decision is taken by the government on the ground of national security or in the interest of national defence  (underlines supplied to give emphasis).  Now let us examine section 32 of the said Act, which is heavily relied upon by the learned Advocates for the respondents. The learned Advocates mainly rely on section  32 (1)(M) (E). The relevant portions of section 32 are quoted  below:

“৩২। পণ্য, কার্য, ইত্যাদি ত্রুযে অন্যান্য ত্রুয় পদ্ধতির প্রয়োগ।
 (১)  ত্রুয়কারী কার্যালয় প্রধান বা তৎকর্তৃক ক্ষমতাপ্রাপ্ত কোন কর্মকর্তার অনুমোদনত্রুমে ধারা ৩১  এ উল্লিখিত পদ্ধতি ব্যতীত অন্য কোন পদ্ধতিতে পণ্য, সংশ্লিষ্ট সেবা, কার্য বা ভৌত সেবা ত্রুয়ের ক্ষেত্রে, কারিগরী অথবা অর্থনৈতিক কারণ যুক্তিযুক্ত বিবেচিত হইলে ত্রুয়কারী নিমণবর্ণিত যে কোন পদ্ধতি প্রয়োগ করিতে পারিবে, যথাঃ-
(ক)  নিম্নবর্ণিত ক্ষেত্রে সীমিত দরপত্র পদ্ধতি প্রয়োগ করা যাইবে, যথাঃ-
(অ)  .............................................
(আ) .............................................
 (ই) .............................................
 (খ)  সম্ভাব্য প্রতিযোগিতা এড়াইবার জন্য বা দরপত্রদাতাদের মধ্যে বৈষম্য সৃষ্টি করিতে পারে এমন কোন পন্থা অবলম্বন না করিয়া নিম্লবর্ণিত ক্ষেত্রে সরাসরি ত্রুয় পদ্ধতি প্রয়োগ করা যাইবে, যথাঃ-
(অ)  .............................................
(আ) .............................................
 (ই)  .............................................
 (ঈ)  .............................................
(উ) সরকার ভিন্নরতপ সিদ্ধামত গ্রহণ না করিলে, বিশেষ ক্ষেত্রে সরকারী    মালিকানাধীন কোন শিল্প প্রতিষ্ঠান বা কারখানা হইতে সরকারের নিজস্ব  অর্থে পণ্য ত্রুয় করা হইলে,
(ঊ)  .............................................
(২) ...............
(৩) ...............
(Underlines supplied to give emphasis)
 
It appears from the above provision that sub-section (1) of section 32 enables the procurement authority to take recourse to direct  procurement from government owned industrial establishments or factory if the same is found to be  logical on  mechanical  or  economic consideration (কারিগরী অথবা অর্থনৈতিক কারন যুক্তিযুক্ত বিবেচিত হইলে) and the same  has to be done by not adopting a method avoiding prospective competition or creating discrimination among the tenderers (underlines supplied to give emphasis). However, the minutes of the concerned ECNEC meeting as reproduced by the petitioner in the Writ petition shows that although  there was one proposal for open tender to encourage competition, the ECNEC took the impugned decision to do direct procurement from Khulna Shipyard and Chittagong Dry Dock, two government owned ship-builders, without assigning any reason for such direct procurement and/or without holding that such method was required on the mechanical or economic necessity as provided by sub section (1) of section 32. We have read the discussions prior to reaching the impugned decision, but found not a vestige of discussion on the applicability or non-applicability of the provisions of Public Procurement Act 2006 and the Rules made there under. It has been decided in several cases by the Supreme Court of this Sub-Continent that the government  can not act like an individual in disposing of state properties or in granting any benefit or  largess infavour of any particular person because of the simple reason that the government is not the owner of the said properties and benefits. They belong to the people of the country and the government is only a trustee for the people and as such they can only act in accordance with law. The  ratio of Kasturi Lal case as cited by  Mr. Azmal Hossain QC  rather supports the above view. Speaking for the  court in Kusturi Lal, Bhagwati, J observed:

“Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government can not act arbitrarily and without reason and if it does, its action would be liable to be invalidated.” 

Before Kasturi Lal, the Indian Supreme Court in the landmark case of Ramana Dayaram Shetty Vs. International Airport  Authority reported in AIR 1979 SC-1628 emphasized that the government can not act  in a discriminatory manner in warding a contract.
 
We are of the view that the ECNEC or any executive authority, how high so ever, can not grant any benefit in favour of any one at its sweet will. It will have to act in accordance with law, and in the instant case the said law is Public Procurement Act, 2006. Since the ECNEC has dicided in the instant case to do direct procurement not on mechanical or economic ground as provided by section 32 (1), we are of the view that it has acted illegally. The impugned decision does not even show any urgent state necessity or disastrous event to justify direct procurement under section 68.The impugned decision has not only affected the interests of prospective ship- builders in this country, it has deprived the members of the petitioner of their right to participate in the tender for no fault of them. Thus, we hold that the impugned decision does not come under the purview of exceptions as provided by section 32 and 68, and as such we are inclined to hold that the same is without lawful authority and of no legal effect.

          In the result, the rule is made absolute without any order as to costs. The impugned decision of ECNEC taken in its 17th meeting held on 22.11.2009 for procurement / construction of four 108 TEU self propelled Multipurpose container ships engaging Khulna Shipyard and Chittagong Dry Dock without inviting any tender is hereby declared to have been taken without lawful authority and of no legal effect.

         Ed.