Frank Shipping Limited Vs. Government of Bangladesh, 50 DLR (AD) (1998) 140

Case No: Civil Petition for Leave to Appeal No. 799 of 1997

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,KS Nabi,,

Citation: 50 DLR (AD) (1998) 140

Case Year: 1998

Appellant: Frank Shipping Ltd.

Respondent: Government of Bangladesh

Subject: Writ Jurisdiction,

Delivery Date: 1997-8-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mustafa Kamal, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Frank Shipping Limited
………………..Petitioner
Vs.
Government of the People’s Republic of Bangladesh and others
….……………Respondents 
 
Judgment
August 26, 1997
 
Constitution of Bangladesh, 1972
Article 102
The writ petitioner has been able to make out a case that its own private interest is so overwhelming that public interest should be subordinated thereto by issuing an interim order in its favour. The operation relating to discharge of bulk wheat from free outturn vessels berthed in Chittagong Silo Jetty under vacuvators is a matter relating to public interest and it cannot be stopped even for a moment unless the public interest is shown to be subjugated to the private interest of the writ petitioner…….(6)
 
Lawyers Involved:
Khondaker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the Petitioner.
KS Nabi, Attorney-General (Farooq Ahmed, Deputy Attorney-General with him) instructed by Sharifuddin Chaklader, Advocate-on-Record— For the respondents.
 
Civil Petition for Leave to Appeal No. 799 of 1997
(From the Judgment and Order dated 4-8-1997 passed by the High Court Division in Writ Petition No. 4638 of 1997)
 
JUDGMENT
 
Mustafa Kamal J.
 
This petition for leave to appeal by the writ petitioner is from an interlocutory order dated 4-8-97 passed by a Division Bench of the High Court Division vacating the order of stay dated 14-7-97 when the Rule Nisi was issued, upon an application by the Government-respondents.
 
2. A tender was floated by respondent No. 3 for discharging 2500 to 3000 metric tons of wheat through vacuvators from the Chittagong Silo Jetty. The writ petitioner’s tender was the lowest amongst three bidders and the Minister-in-charge of Ministry of Food approved of the petitioner’s tender on 4-2-97, but in a meeting held in the Ministry of Food on 16-3-97 a contrary decision was taken to give the work to Bangladesh Shipping Corporation which had been doing the same work at a much higher rate. While issuing Rule Nisi on 14-7-97, the Division Bench issued an interim order in the following terms- 
 
“Let the operation relating to discharge of bulk wheat from the out-turn vessels berthed in Chittagong Silo Jetty under vacuvators be stayed for 3 (three) months from date.”
 
3. The respondents filed an application for vacating the order of stay on 3-8-97. A different Division Bench which did not issue the Rule Nisi, upon hearing the respondents only vacated the order of stay by the impugned order accepting the contention of the respondents that serious complication has been created by the order of stay in discharging bulk wheat from the outturn vessels to the Silo.
 
4. Mr. Khandker Mahbubuddin Ahmed, learned Counsel for the writ petitioner, draws our attention to the statements made in the leave petition namely, that the allegations of complications in the delivery of wheat are absolutely false. A vessel named MV Almi arrived at outer anchorage on 15-7-97 and discharged wheat commencing from 16-7-97 and after lightering operation the vessel took berth in the main Jetty on 25-7-97 with nearly 24000 metric tons of bulk wheat and completed discharge of the same on 10-8-97. Another vessel MV JOALMI arrived on 11-8-97 and berthed at main Jetty No. 8 and discharged nearly 7,000 metric tons of wheat before sailing out to Mongla Port for discharging the rest there. Therefore stoppage of Silo Jetty working does not affect berthing and discharging of vessels carrying bulk wheat. Secondly, Mr. Ahmed submits that although an application for vacating the stay was served on the writ petitioner it was not mentioned therein that the application will be moved in another Division Bench which did not issue the Rule Nisi. The writ petitioner therefore being unaware of the filling of the application before another Bench could not attend the hearing of the application. He submits that the procedure adopted is highly improper and the Division Bench which did not issue the Rule Nisi ought to have issued a notice to the writ petitioner to appear and ought not to have disposed of the application on hearing only the respondents.
 
5. We find considerable merit in the second submission of Mr. Ahmed and do hope that in a proceeding of this kind some priority will be maintained so that such grievances may not come to our notice in future.
 
6. But insofar as the order vacating the stay is concerned, we are of the opinion that by issuing the interim order the Division Bench has touched upon issues affecting the public interest. We are not convinced that in favour of the interim order the writ petitioner has been able to make out a case that its own private interest is so overwhelming that public interest should be subordinated thereto. The operation relating to discharge of bulk wheat from free outturn vessels berthed in Chittagong Silo Jetty under vacuvators is a matter relating to public interest and it cannot be stopped even for a moment unless the public interest is shown to be subjugated to the private interest of the writ petitioner. No such case has been made out anywhere.
 
The petition is dismissed.
 
Ed.