North South Property Development Ltd. Vs. Secretary, Ministry of Land and another, 52 DLR (HCD) (2000) 7

Case No: Writ Petition No. 3270 of 1998

Judge: Kazi Ebadul Hoque,

Court: High Court Division,,

Advocate: Mr. Mahmudul Islam,,

Citation: 52 DLR (HCD) (2000) 7

Case Year: 2000

Appellant: North South Property Development Ltd.

Respondent: Secretary, Ministry of Land and another

Subject: Legitimate Expectation ,

Delivery Date: 1999-05-17

Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Kazi Ebadul Hoque, J.
Md. Muzammel Hossain, J.
 
North South Property Development Ltd.
……………...Petitioner
Vs.
Secretary, Ministry of Land and another.
..…………….Respondents
 
Judgment
May 17, 1999
 
Constitution of Bangladesh, 1972
Article 102
A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, it would primarily be a question of fact.
 
Cases Referred To-
Hong Kong vs NG Yuen Shin (1983) 2 AC629; RV Devon County Council, (1995) 1 All ER 73 held not applicable; Union of India vs Hindustan Development Corporation AIR 1994 (SC) 988 relied (7 & 8)
 
Lawyers Involved:
Mrs. Rabeya Bhuiyan with Safiuddin Md. Anisur Rahman Advocates—For the Petitioner.
Mahmudul Islam Attorney-General, Shahabuddin Ahmad, Deputy Attorney-General with Bazlur Rahman Chhana, Advocate—For the Respondent No. 1.
 
Writ Petition No. 3270 of 1998
 
JUDGMENT
 
Kazi Ebadul Hoque J.
 
1. This Rule was issued at the instance of the petitioner North South Property Development Ltd, calling upon the respondents to show cause as to why notification dated 9-10-98 (Annexure-K) should not be declared to have been made without lawful authority and of no legal effect. Case of the petitioner is that the respondent No.1 decided to undertake a project to develop 47.90 acres of land in Bhasantek area under Dhaka in Cantonment PS for rehabilitation and housing of slum dwellers and low income group people. Petitioner had discussion near the end of September, 1997 and orally directed by the State Minister for Land to submit a plan how they would implement the project through self financing. Petitioner was given the understanding that if the plan is approved petitioner would be given the responsibility to implement the project .Thereafter petitioner filed an application to the Prime Minister and Ministry of Land setting out the basic layout of the project proposal on 30-9-97 (vide Annexure-A). Thereafter on 14-10-97 a meeting was held in the Ministry of Land presided over by the State Minister for land and respondent No. 1 asked the petitioner to submit a layout plan and detailed project proposal for the entire land by letter dated 23-10-97 (Annexure-B). Thereafter petitioner submitted an application setting out details of the project proposal and lay plan on 8-11-97 (Annexure-C). Thereafter, petitioner had discussion with an American Investment Company about the project and representative of the said Company visited Bangladesh and agreed to invest in the said project and gave an undertaking on 5-8-98 to that effect (vide Annexure-D). The project got approval of the Executive Committee of National Economic Council (ECNEC). Though respondents were well aware that the petitioner developed the detailed and feasible concept they invited open tender bids from interested private organisations deliberately ignoring the confidentiality of petitioner’s project proposal by publishing notice in the newspapers (vide Annexure-E). Though the petitioner was surprised by the said move of the Government collected a bid document on payment and deposit of the requisite amounts. (Annexure-G, G-1 and G-2) Out of five originations that had purchased the bid documents only two including the petitioner submitted tenders. On 23-8-98 petitioner received a letter from respondent No.2 requesting the petitioner to supply 4 copies of the technical proposals for further evaluation (Vide Annexure-H) and petitioner submitted 4 copies of the technical proposal on 26-8-98 (vide Annexure-H) (i). Contrary to petitioner’s expectation petitioner received a letter from the respondent No. 2 on 5-9-98 asking him to take back his financial and technical proposal along with the bank draft of Taka 1,00,000.00 as the respondents decided to invite bids for the second time (vide Annexure-I). Petitioner spent an amount of Taka twenty five lack to develop and finalise the plans and technical support on the basis of direction of the State Minister for Land. So the petitioner submitted an application to the Prime Minister and the State Minister for remedy (vide Annexure-J). In spite the same respondents published notice inviting fit bids in newspapers on 9- 10-98 and 10-10-98 (vide Annexure-K). Further case of the petitioner is that respondents having given assurance to the petitioner and the petitioner spent time, skill and money for the project on such assurance it created a legitimate expectation of getting the work. But the respondents acted contrary to petitioner’s legitimate expectation and thus acted illegally and without lawful authority. Respondents acted in a malafide manner to the detriment of the petitioner by inviting bid for the second time ignoring petitioner’s valid offer after inducing the petitioner to disclose in details its layout plans and technological know-how and in adopting and publishing the entire concept as their own. In the above premises notice to hold a second bid is arbitrary, malafide and without lawful authority.
 
2. Respondent No.1 has been contesting the Rule denying material allegations and stating, inter alia, that the bid in question relates to a commercial contract and, as such, writ petition is not maintainable, that the petitioner having already participated in the bid cannot maintain the writ petition on the alleged basis of legitimate expectation, that petitioner’s participation in the bid clearly shows that its legitimate expectation is confined to consideration of its bid along with bids submitted by others. Case of the respondent is that the Prime Minister long nursed an idea of providing housing shelter facilities for the shelterless and landless slum dwellers of Dhaka City. Ministry of Land and ADAB/PROSHIKA interacted and participated in such discussion and helped in the formulation and development of the project. In some of the meetings of the Planning Commission about the said project ADAB/PROSHIKA was also represented by its Chairman who was invited by notice dated 25-1-97. ADAB/PROSHIKA helped in the formulation and development of the project by the Ministry of Land at the initial stage as can be seen from the demy official memo dated 7-5-97. At different stages of the formulation and development of the project advice, guidance and instruction of the Paine Minister was sought and taken. Ministry of Land at first decided to take up a project to build 16000 flats for slum dwellers of Dhaka City on 20 acres of land at Bhasantek at the cost of Taka 264, 66, 74,744.00 through Government financing but the Planning Commission in the pre-ECNEC meeting dated 30-6-97 opined that financing of the said project from Government resources would not be possible. Thereafter, guidance from the Prime Minister’s office was sought which advised the Ministry of Land to explore possibility of financing the project through the private sector. In this process the said Ministry came in touch with different private organisations. At this stage petitioner on its own came to the said Ministry and discussed the matter. It was not directed to submit plan for implementation of the project and petitioner was never given any understanding that if the plan was approved it would be given the responsibility to implement the same as pilot project. However in the hope of getting the work petitioner came to the said Ministry and showed eagerness to submit a layout plan and detailed project proposal for the entire 47.97 acres of land and in that situation by memo dated 23-10-97 petitioner was asked to submit a plan. Similar request was made to other NGOs as well. The said Ministry did not make any representation to the petitioner much less to speak of holding out any promise or assurance. The proposal of the petitioner was neither approved by the Ministry of Land nor by the office of the Prime Minister. Ministry of Land drew up the project proposal and layout plan on its own. If the assertion of the petitioner was correct it ought to have objected when the respondents invited bids. On the contrary petitioner participated in the bid. Since the Government invited fresh bids without accepting the bid of the petitioner it is coming up with a story of surprise. Duly constituted Technical Committee evaluated the two bids and found petitioner’s bid responsive but the Committee felt that the Government should not act on the basis of two bids only one of which is responsive and bids should be invited again to make the process competitive. Government reserved the right to reject any bid without assigning any reason. Action of the Government is legal and in no way arbitrary, malafide or without lawful authority. If the petitioner had any legitimate expectation it was limited to an opportunity to participate in the bid which it availed of at the first instance.
 
3. Learned Advocate for the petitioner after placing the writ petition and other materials on record submitted that from the conduct of the respondents it was clear that the layout plan and project proposal of the petitioner was accepted by the respondents giving rise to a legitimate exception of the petitioners getting the work but subsequent conduct of the respondents was arbitrary, unreasonable and malafide and, as such, the Rule should be made absolute.
 
4. Learned Attorney-General after placing the affidavit-in-opposition and other materials on record submitted that no representation was made to the petitioner by the respondents to give rise to a legitimate exception to get the contract for construction of flats at Bhasantek and even if there was any legitimate expectation that was limited to the consideration of its bid which it submitted and not of getting the contract, He further submitted that if the respondents accepted the lone responsive bid of the petitioner then the Government would have faced criticism for doing so and has invited fresh bids on the advice of the Technical Committee for the sake of transparency invitation of the fresh bids is neither arbitrary nor malafide nor illegal.
 
5. On consideration of the materials on record and submissions of the learned Advocates we find that there is no dispute that under the initiative of the Prime Minister, Ministry of Land took up the scheme for construction of 16000 flats for shelterless and low income group slum dwellers of the Dhaka City on 47.90 acres of Government land at Bhasantek under Cantonment PS Dhaka through private financing of the developers. It appears that the petitioner as well as ADAB/PROSHIKA had discussions and meetings with the Ministry of Land in this connection and the petitioner was asked to submit a detailed layout plan by memo dated 23-10- 97 for the said project. Respondents assert that ADAB/PROSHIKA also participated in developing the said project by the said Ministry of Land. Though the petitioner asserts that the Ministry of Land assured the petitioner that after approval of the project petitioner would be engaged for execution of the project the same has been denied by the respondents and, as such, the same is a disputed question of fact and cannot be decided in the writ petition. It is also a disputed question who actually prepared the detailed project proposal But there is no dispute that respondent No. 2 on 5-7-98 published a notice inviting bids for construction of multistoried buildings in the said project from interested companies and NGOs and the petitioner and ADAB/PROSHIKA only participated in the said bid and in the meeting of the Technical Committee held on 30-8-98 both the Technical offers were evaluated and it was unanimously resolved that the technical offer of the petitioner was responsive but that of PROSHIKA was not responsive and the evaluation on the basis of two bids would not be competitive and, as such, decided to invite fresh bids and if no better bid was found then to consider the financial offer of the petitioner through negotiation. Accepting the recommendation of the said Committee respondent No. 2 again invited bids for the purpose for the second time. Thereafter petitioner challenged the notification dated 9-10-98.
 
6. Now the question is whether petitioner has any legitimate expectation to get the contract to execute the said project of construction of 16000 flats for the shelterless and low income group slum dwellers on 47.90 acres of Government land at Bhasantek and, if so, whether respondents acted illegally in inviting bid for the second time for the said purpose.
 
7. Legitimate expectation is a concept of administrative law which means that administration authority cannot abuse its discretion by following inconsistent policy by disregarding undertaking statement of intent. But if the published policy is to be changed then the person to be adversely affected a by such change should be given full and serious consideration when there is some overriding public interest justifying the new departure. Decision in the case of Attorney-General of Hong Kong vs. NG Yuen Shin reported in (1983) 2 AC 629 is regarding repatriation of illegal immigrants and in the case of RV Devon County Council, reported in (1995)1 All ER 73 is regarding closure of local authority home for the elderly persons. Observations regarding legitimate expectation in those two cases manner of application in the facts and circumstances of the case before us regarding award of a contract for of buildings. On the other hand the case of Union of India vs. Hindustan Development Corporation reported in AIR 1994 (SC) 988 regarding award of contract by the Government has some similarity with the case before us. In that case it was observed: A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But a person who bases his claim on the doctrine of legitimate expectation in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy even by way of change of old policy, the Court cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to legitimate expectation, it would primarily be a question of fact. If those tests are satisfied and if the Court is satisfied that a case of legitimate expectation is made out then the next question would be whether a failure to give an opportunity of hearing before a decision, affecting such legitimate expectation is taken has resulted in failure of justice, and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors. The Courts jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on the ground of legitimate expectation. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the Court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected, If a denial of legitimate expectation in a given case, denial of right guaranteed or biased gross abuse of power or violation of principle of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere le expectation without anything more cannot ipso facto give a right to invoke these principles.’
 
8. In the light of the above let us see whether petitioner’s claim of legitimate expectation has any basis or foundation. We have already seen that claim of the petitioner that the respondents gave it an assurance to award the contract in its favour is a disputed question. So we do not find any basis for the petitioner’s legitimate expectation. Rather petitioner’s participation in the bid negatives its claim of legitimate expectation or at least petitioner itself waived its such claim. Even if it is conceded for the sake of argument that petitioner had legitimate expectation to get the contract the decision of the respondents not to accept petitioner’s lone bid and to invite bids for the second time to attract more bids appears to be in public interest to make the bids competitive and transparent. Even the notice dated 5-7-98 inviting bids- and the impugned notice dated 9-10-98 inviting bids for second time show that the authority reserved the right to accept or reject any bid without assigning any reason. Thus, non- acceptance of petitioner’s lone bid cannot be termed as arbitrary, unreasonable or malafide. On the other hand, we find that Technical Committee having found the technical offer of the petitioner-responsive recommended to consider petitioner’s financial offer if no other better offer was found after inviting bids for the second time. Thus we find nothing arbitrary or unreasonable in the conduct of the respondents not to speak of any malafide.
 
9. In the above facts and circumstances we find no merit in this Rule.
 
In the result, the Rule is discharged without any order as to cost.
 
Ed.