M/S. Masuma Begum Bogra Vs. Md. Jahirul Islam and others 2016 (2) LNJ 384

Case No: Civil Revision No. 2039 of 2015

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Mahbub Shafique,Mr. Shafique Ahmed,Mr. B. M. Elias,,

Citation: 2016 (2) LNJ 384

Case Year: 2016

Appellant: M/S. Masuma Begum Bogra

Respondent: Md. Jahirul Islam and others

Subject: Civil Law,

Delivery Date: 2016-09-06

M/S. Masuma Begum Bogra Vs. Md. Jahirul Islam and others 2016 (2) LNJ 384
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Borhanuddin, J.
Judgment on
06.09.2016
  M/S. Masuma Begum Bogra
. . .Petitioner
Versus
Md. Jahirul Islam and others
. . . Opposite Parties

Code of Civil Procedure (V of 1908)
Section 9
When a legal right and an infringement thereof are alleged, a cause of action is disclosed and unless there is a bar to the entertainment of a suit, the ordinary civil courts are bound to entertain the claim. The right of a person to relief in a civil court is a common law right and so long as he can show a cause of action he can bring a suit for redress. But where a statute creates a new right or a new liability which has no existence apart from the statute creating it and the statute creates the right or liability at the same time prescribed a particular method of enforcing it, then the remedy provided by the statute must be followed and it is not competent to the party to pursue any other remedy.                . . . (18)
Interpretation of statute

Prima facie it appears that where the same statute creates a new rights and specify the remedy, the remedy is exclusive. The natural presumption to begin with is that parliament in creating the novel right, attaches to it the particular mode of enforcement as part of its statutory scheme.     . . .(21)

Code of Civil Procedure (V of 1908)
Section 9
Public Procurement Act (XXIV of 2006)
Sections 29 and 30
The jurisdiction of civil courts is impliedly barred by the provisions of sections 29 and 30 of the Public Procurement Act and Regulations. By now it is settled by our apex court that special remedy provided for in a statute may without any ouster provision bar the general remedy in the civil court. . . . (22)

Dhulabhai Vs. State of Madhya Pradesh and another, AIR 1969 Supreme Court 78; Ranjeet Singh Vs. Harji alias Hazari and others, AIR 1991 Madhya Pradesh 169; M/S. Paresh Engineering Works Pvt. Ltd. Vs. State of MP and another, AIR 1992 Madhya Pradesh 61; Bhaishankar Nanabhai Vs. Municipal Corporation of Bombay and others, the Indian law reports, VOL. XXXI, page 604; Jogesh Chandra Datta Vs. Govt. of Bangladesh, 30 DLR (1978) 219 and Wolver hampton new water Works Co. Vs. Hawkesford, (1859) 141 E.R. 486 ref.

Civil Revision No. 2039 of 2015

Mr. Shafique Ahmed with
Mr. Mahbub Shafique, Advocates  
. . . For the Petitioner
Mr.  B. M. Elias, Advocates
. . . For Opposite Party No.1

JUDGMENT

Borhanuddin, J:
This rule has been issued calling upon the opposite party nos. 1-10 to show cause as to why the judgment and decree dated 14.07.2015 passed by the learned Additional District Judge, Meherpur, in Title Appeal No. 68 of 2014 and 71 of 2014 heard analogously, affirming the judgment and decree dated 22.10.2014 passed by the learned Senior Assistant Judge, Sadar, Meherpur, in Title Suit No.375 of 2013 decreeing the suit, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.
  1. Facts relevant for disposal of the rule are that opposite party no.1 herein as plaintiff instituted Civil Suit No. 375 of 2013 in the Court of learned Senior Assistant Judge, Meherpur, for declaration that decision of the technical evaluation committee dated 05.09.2013 declaring the defendant no.10 as substantially responsive bidder is illegal, collusive, fraudulent, liable to be set aside and memo dated 09.10.2013 issued by the defendant no.4 Pursuant to the aforesaid decision directing defendant no.1 to take necessary step to implement construction of girder bridge is also illegal, void, arbitrary and further declaration that the plaintiff is entitled to get work order as responsive bidder contending interalia that the plaintiff is a 1st Class contractor having experience in the field of constructing girder bridge and has been continuing his business with reputation since long; Defendant No.1 invited tender for construction of 175.15 meter RCC girder bridge on the river Bhairab through advertisement published in the national dailies; Plaintiff and defendant no.10 purchased tender schedule and both of them dropped tender within prescribed time. In the tender schedule it is specifically mentioned that:
“The eligibility of criteria of the tenderer shall be: 
General experience at least 3 (three) years.
II) Similar contract experience as a single contract tk.500.00 lac in last 5(five) years.
Required average annual construction turnover shall be greater than tk.1200.00 lac over the last 5(five) years.
Minimum liquid asset 170.00 lac.”
  1. Plaintiff submitted requisite papers/ documents as per condition but defendant no.10 though submitted 5 years experience certificate but failed to produce payment certificate alongwith experience certificate as per condition of the tender schedule; Inspite of that technical evaluation committee without proper scrutiny of the documents submitted by the bidders most illegally declared the defendant no.10 as substantially responsive bidder in the meeting of the committee held on 05.09.2013; Being informed of the decision, plaintiff vide letter dated 10.06.2013 requested the defendant no.1 to take appropriate step after proper scrutiny of the submitted documents by the bidders regarding qualification; Copy of the letter also sent to the chairman of tender evaluation committee and project director; Defendants did not respond rather pursuant to the decision of technical evaluation committee, defendant no.4 vide memo dated 09.10.2013 directed the defendant no.1 to take necessary step to implement construction of the bridge in violation of the condition of tender schedule; Plaintiff again sent a letter to the defendant no.3 on 10.09.2013 requesting him to re-examine the documents filed by the bidders and issue work order in favour of the bidder who submitted documents fulfilling conditions of the tender schedule, otherwise plaintiff will take shelter of the Court of law; Copy of the letter sent to the defendant nos. 1 and 2 but the defendants did not pay heed; Being compelled, plaintiff served legal notice upon defendant nos. 1 and 4 narrating the facts and demanding justice but the defendants did not respond; Hence, the suit.
  2. Opposite party nos. 2-9 herein as defendant nos. 1-9 contested the suit by filing a joint written statement denying material allegations made in the plaint and contending interalia that the allegation of non submission of payment certificate by the defendant no.10 alongwith work certificate is not correct; Amongst the two bidders, defendant no.10 is the lowest bidder as such technical evaluation committee rightly declared defendant no.10 as substantially responsive bidder; Plaintiff filed the suit in violation of mandatory provision of rule 57 of the Public Procurement Regulations, 2008 i.e. provision for filing complaint before the administrative authority; Technical evaluation committee properly scrutinized documents submitted by the bidders and also considered application of the plaintiff dated 10.06.2013 and lawfully evaluated the bid; Suit is liable to be dismissed.
  3. Petitioner herein impleaded as defendant no.1 did not contest the suit.    
  4. After hearing the parties and assessing evidence on record, learned Senior Assistant Judge, Sadar, Meherpur, decreed the suit declaring decision dated 05.09.2013 by the tender evaluation committee and memo dated 09.10.2013 issued by the defendant no.4 to the defendant no.1 as illegal, inoperative and directed the defendants to issue work order in favour of the plaintiff treating him as responsive bidder vide judgment and decree dated 22.10.2014.
  5. Being aggrieved, defendant nos. 1-9 as appellants filed Civil Appeal No.71 of 2014 in the Court of learned District Judge, Meherpur. Defendant no.10 who did not contest the suit also filed Civil Appeal No.68 of 2014 against the judgment and decree passed by the trial court. Both the appeals were heard analogously by the learned Additional District Judge, Meherpur, who after hearing the parties and reassessing evidence on record dismissed both the appeals by a single judgment dated 14.07.2015.  
  6. Having aggrieved by and dissatisfied with the judgment and decree, defendant no. 10 -appellant as petitioner preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present rule alongwith an order of stay.
  7. Mr. Shafique Ahmed with Mr. Mahbub Shafique, learned advocates appearing for the petitioner at the very outset submits that the suit is not maintainable inasmuch as Public Procurement Act, 2006 provides forum for aggrieved bidder under section 29 and 30 of the Act and also under rules 56-60 of the Public Procurement Regulations, 2008 as such there is implied bar in taking cognizance of the civil suit but the court below without considering this legal aspect passed the impugned judgment and decree and thus committed an error of law resulting in an error in the decision occasioning failure of justice. He also submits that the court below committed an illegality in not holding that technical evaluation committee rightly found the defendant-petitioner as responsive bidder as his bid was lowest and the bid of plaintiff-opposite party was higher at taka 31,07,391.28 as such impugned judgment and decree is liable to be set aside. He next submits that the court below committed an illegality in not considering that the concern authority is authorized to give work order to the lowest responsive bidder but the court below passed the impugned judgment and decree going beyond its jurisdiction as such the judgment and decree is liable to be set aside. In support of his submissions, learned advocate referred to the case of Dhulabhai -Vs- State of Madhya Pradesh and another, reported in AIR1969 Supreme Court 78 and an unreported judgment dated 04.03.2012 passed by this Division in Writ Petition no.10380 of 2011 with Writ Petition no.742 of 2012.
  8. On the other hand, Mr. B. M. Elias learned advocate appearing for the opposite party no.1 by filing a counter affidavit submits that section 9 of the Code of Civil Procedure empowers civil courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred as such Court below rightly passed the impugned judgment and decree holding that rules 56-60 of the public procurement regulation does not constitute any bar to try the suit in civil court. He also submits that jurisdiction of the civil court to try all disputes of civil nature affecting rights of the contending parties under section 9 of the Code of Civil Procedure cannot be taken away lightly but it can be so read only when it is specifically barred under any law as such court below committed no illegality in passing the impugned judgment and decree. He next submits that there is no provision in the Public Procurement Act ousting jurisdiction of the civil court as such court below rightly and legally passed the impugned judgment and decree. By referring Provision of the Public Procurement Act, learned advocate submits that only being the criteria of lowest bidder is not sufficient to get work order and there is no provision in the Public Procurement Act or Regulation for treating someone substantially responsive if he becomes non-responsive as per law. He again submits that the petitioner has not complied with condition III of the tender schedule fully who has only 87% of the required annual turnover and he also violated condition relating to the similar contract experience as such court below after thorough and meticulous discussions of evidence on record passed the impugned judgment and decree which need not require interference by this revisional court.  He further submits that the opposite party no.1 submitted his complaint to the concern authority as per rule 57 of the Public Procurement Rule, firstly, on 10.06.2013 before issuing work order seeking inquiry regarding qualification of the petitioner but the authority has not disposed of the said complaint and thereafter he further submitted complain and objection against treating the petitioner as responsive bidder on 10.09.2013 just day after the issuance of work order which was also not disposed of, thereafter the opposite party send legal notice on 25.09.2013 but the defendant-opposite parties did not respond as such it is clear that the authority concern acted in gross violation of law for which the opposite party could not sought subsequent administrative remedy, considering all the aspect court below legally and rightly passed the impugned judgment and decree. In support of his submissions, learned advocate referred to the case of Ranjeet Singh-Vs- Harji alias Hazari and others, reported in AIR 1991 Madhya Pradesh 169 and the case of M/S. Paresh Engineering Works Pvt. Ltd.-Vs- State of MP and another, reported in AIR 1992 Madhya Pradesh 61.
  9. Heard the learned advocates. Perused the revisional application and annexures appended thereof, judgment and decree passed by the courts below, lower court records alongwith decisions cited by the learned advocates.
  10. On perusal of the record it appears that the opposite party no.1 herein as plaintiff instituted Civil Suit No.375 of 2013 for declaration impleading the petitioner herein as defendant no.10 alongwith other defendants. Defendant nos. 1-9 contested the suit by filing written statement but did not adduce any evidence in favour of their contention though they cross examined the PWs. I have perused written statement filed by the defendant nos.1-9 which contains denial of the averments made in the plaint. Defendant no.10 though did not contest the suit but filed Civil Appeal No.68 of 2014 as appellant contending interalia that no summons/notices were issued upon him but the appellate court below after perusing record of the case arrived at a finding that since the defendant no.10 was not available in his house, summons were served in accordance with the provision of law by affixing copy of the summon at the door of his house. Apart from that summons also issued by post in his address.
  11. There is no doubt that conduct of the defendants is highly deplorable but question remains jurisdiction of the court below in entertaining the suit. Learned advocate for the petitioner at the very outset raised the question of maintainability of the suit. According to him, jurisdiction of the civil court is impliedly barred in view of the provision of sections 29 and 30 of the Public Procurement Act as well as Rules 56-60 of the Public Procurement Regulation.
  12. Section 29 of the Act provides right to complain by the aggrieved person and section 30 of the Act provides lodging complaint to the administrative authority, appeal etc. Again, rule 56 of the Public Procurement Regulation outline circumstances under which a formal complaint can be lodged against a procuring entity and rule 57 provides procedure for submission complaints to the administrative authority and disposal of appeal.
  13. Rule 58 deals with formation of review panels by the central procurement technical unit comprising of specialists mentioned in sub rule (2) for the purpose of review, appeal and giving decisions.
  14. Rule 59 clearly stipulated that authority will suspend issuance of notification of award until resolution of appeal and rule 60 narrates procedure for disposal of appeal by the review committee.
  15. Schedule II of the public procurement regulation specifically mentioned time for disposal of the complaints filed under Section 57 of the regulation. It is apparent from schedule II that completion of whole procedure may take 27-31 days for disposal of the complaint under rule 57 of the Public Procurement Regulation. There is also time limit for disposal of complaints by review panel in writing which is 12 working days from the date of receipt of the complaint.
  16. Section 9 of the Code of Civil Procedure lays down that civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. One general rule of law is that when a legal right and an infringement thereof are alleged, a cause of action is disclosed and unless there is a bar to the entertainment of a suit, the ordinary civil courts are bound to entertain the claim. The right of a person to relief in a civil court is a common law right and so long as he can show a cause of action he can bring a suit for redress. But where a statute creates a new right or a new liability which has no existence apart from the statute creating it and the statute creates the right or liability at the same time prescribed a particular method of enforcing it, then the remedy provided by the statute must be followed and it is not competent to the party to pursue any other remedy. In the case of Bhaishankar Nanabhai –Vs- Municipal Corporation of Bombay and others, reported in the Indian law reports, VOL. XXXI, page 604, his lordship sir Lawrence jenkins C.J. observed that:
“It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts, for they never had any; there is no change of the old order or things; a new order is brought into being.” 
  1. In the case of Dhulabhai Vs- State of Madhya Pradesh and another, reported in AIR 1969 Supreme Court 78, his lordship Hidayatullah C.J. laid down some principles regarding exclusion of jurisdiction of a civil court, two of them are relevant in this case.
    1. Where the statute gives a finality to the orders of the special tribunals the civil courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
    2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
  2. In the case of Jogesh Chandra Datta-Vs Govt. of Bangladesh, reported in 30 DLR (1978) 219, this Division respectfully agreed to the dictum laid down by Willes J in the case of Wolver hampton new water Works Co. –Vs- Hawkesford, reported in (1859) 141 E.R. 486, wherein the following principle is laid down:
“There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it”.
  1. From the discussions above, prima facie it appears that where the same statute creates a new rights and specify the remedy, the remedy is exclusive. The natural presumption to begin with is that parliament in creating the novel right, attaches to it the particular mode of enforcement as part of its statutory scheme.
  2. As it is stated above that sections 29 and 30 of the public procurement act and rules 56-60 of the public procurement regulations creates a right to file complain by an aggrieved person and attaches to it the particular mode of enforcement within a specific period of time. In the premises above, I am of the view that the jurisdiction of civil courts is impliedly barred by the aforesaid provision of Public Procurement Act and Regulations. By now it is settled by our apex court that special remedy provided for in a statute may without any ouster provision bar the general remedy in the civil court.
  3. Since I am of the opinion that Civil Court has no jurisdiction to entertain the suit, it would be obviously improper for me to express any opinion on the merits of the questions discussed before this Court having revisional jurisdiction under Section 115(1) of the Code of Civil Procedure.
  4. Under the facts and circumstances and for the reasons stated above, I am inclined to make the rule absolute without any order as to cost.
  5. Accordingly, the rule is made absolute without any order as to cost.
  6. Judgment and decree dated 14.07.2015 passed by the learned Additional District Judge, Meherpur, in Title Appeal No.68 of 2014 and 71 of 2014 heard analogously, affirming the judgment and decree dated 22.10.2014 passed by the learned Senior Assistant Judge in Title Suit no.375 of 2013 is set aside.
  7. Order of stay granted at the time of issuance of the rule is hereby vacated.
  8. Facts and circumstances of the cases referred by the learned advocate for the opposite party no.1 are quite distinguishable from the facts and circumstances of the case in hand.
  9. Send down lower court records alongwith a copy of this judgment to the court concern at once.
Ed.