Superintendent Engineer, RHD Sylhet & others Vs. Md. Eunus & Brother (Pvt) Ltd. & ors, VI ADC (2009) 736

Case No: In Civil Appeal No. 245 of 2005

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. M. Amir-Ul Islam,Mr. Murad Reza,,

Citation: VI ADC (2009) 736

Case Year: 2009

Appellant: Superintendent Engineer, RHD Sylhet and others

Respondent: Md. Eunus & Brother (Pvt) Ltd. and others

Subject: Civil Law,

Delivery Date: 2009-07-19

Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md Joynul Abedin, J.
Shah Abu Nayeem Mominur Rahman, J.
Md. Abdul Aziz, J.
 
Superintendent Engineer, RHD Sylhet & others
……….Appellants (In Civil Appeal Nos. 244-246, 248-50 of 2005)
Luthfar Rahman
…................Appellant (In Civil Appeal No. 245 of 2005)
Ohiduzzaman Chowdhury
………........Appellant (In Civil Appeal No. 247 of 2005)
Vs.
Md. Eunus and Brother (Pvt.) Ltd.
…............. Respondents (In all the Appeals)
And
Md. Eunus and Brothers (Pvt.) Ltd.
…..............Petitioner (In Contempt Petition No. 01 of 2005)
Vs.
Md. Asmat Uddowla Sobhan and others.
…..….....Respondents (In Contempt Petition No. 01 of 2005)
 
Judgment
July 19, 2009
 
Merely because a contract is entered into in exercise of a contract is conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing prescribed terms and conditions is a must under the statute then the contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory.  A contract may contain certain other terms and conditions which have been incorporated therein as a result of a mutual agreement between the parties. ……...(46)
 
Cases Referred To-
Sharping Matshjibi Samabaya Samity Ltd. vs Bangladesh and others 39 DLR (AD) 85; Mesbahuddin Ahmed Vs. Government of Bangladesh and orders 47 DLR 515; Bangladesh Power Development Board and others Vs. Md. Asaduzzaman Sikder 9 BLC (2000) (AD) 1; M/S. Bisra Stone Lime Co. Ltd. Vs. Orissa State Electricity Board and another AIR 1976 SC 127; Kerala State Electricity Board Vs. Kurien E Kalathil and others AIR 1976 SC 1216; Kulchhinder Singh and others Vs. Iardayal Singh Brar and others; Verigamto Naveen Vs. Govt of AP and others (2001) 8 SCC 344; Controller and Auditor General of India Vs. KS Jagannath and another AIR 1987 SC 537; Managing Director, WASA Vs. Ali and others 59 DLR (AD)185; Shamsunnahar Salam and others Vs. Mahammad Wahidur Rahman and others 51 DLR (AD) 232; Nuruddin (Md) Vs. Titas Gas Transmission and Distribution  Company Ltd. and others 3 BLC (AD) 231.
 
Lawyers Involved:
Md. Murad Reza, Additional Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellants (In Civil Appeal Nos. 244, 246, 248-250 of 2005).
Mahmudul Islam, Senior Advocate with Probir Neogi, Advocate instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For the Appellants (In Civil Appeal Nos. 245, 247 of 2005).
M. Amirul Islam, Senior Advocate, Mahbubar Rahman, Senior Advocate Ms. Tania Amir, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioner (In Contempt Petition No. 01 of 2005).
M. Amirul Islam, Senior Advocate, Mahbubar Rahman, Senior Advocate and Ms. Tania Amir, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record-For the Respondent (In Civil Appeal No.244 of 2005).
M. Amirul Islam, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record-For Respondent No.1 (In Civil Appeal No. 245 of 2005).
None Represented- For Respondent Nos. 2-5 (In Civil Appeal No. 245 of 2005)
M. Amirul Islam, Senior Advocate, instructed by. A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent (In Civil Appeal No. 246 of 2005).
M. Amirul Islam, Senior Advocate instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent No.1 (In Civil Appeal No. 247 of 2005)
None Represented-For Respondent Nos.2-6. (In Civil Appeal No. 247 of 2005).
M. Amirul Islam, Senior Advocate instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent (In Civil Appeal Nos. 248-50 of 2005).
None represented-For Respondent (In Contempt Petition No. 01 of 2005).
 
Civil Appeal Nos. 244-250 of 2005
(From the judgment and order dated the 22nd and 23rd day of June, 2004 passed by the High Court Division in Writ Petition Nos.3570 of 2003, 6895 of 2003 and 6456, 6461 and 6457 of 2003 respectively).
 
JUDGMENT
 
Mohammad Fazlul Karim J.
 
1. These appeals by leave are directed against the judgments and orders passed by the High Court Division in making the Rules absolute with directions in Writ Petition Nos. 3570, 6895, 6456, 6461 and 6457 of 2003. In all these writ petitions the writ petitioner and the writ respondents are same and the writ petitions arose out of different tender contracts but containing the similar facts and circumstances and involving similar issues.
 
2. In Writ Petition No. 3570 of 2003 the letter bearing memo No. 5-532/1006 dated 19.03.2003 issued by the respondent No.1 (Annexure-D to the Writ Petition) relating to allowing the non-responsive tender bid of M/S. Abdus Samad and Janmabhumi Nirmata (JV) and Tel-Mi (JV) to be con­sidered as responsive tender bid against the tender invited for bids for construction of 434.35 meter long PC. Girder Bridge on Dholi River at 34th K.M. (link Road) of Sylhet-Salutikar-Companyganj and Bholagonj High-Way under Sylhet Road Division of Sylhet Road Circle for the year 2002-2003 has been challenged.
 
3. That five parties/bidders having partici­pated submitted the tenders, all the tenders were opened on the date fixed for the same. The respondent has alleged that the Superintendent Engineer, Roads and Highways Department, Sylhet Road Circle, Sylhet submitted a statement/report to the Additional Chief Engineer, Roads and Highways Department, Comilla Zone, Comilla for taking necessary action with his alleged recommendation vide Memo. No.5-384/880 dated 11.03.2003 that out of 5 tenders, the bid of responsive bidders namely, Messers Abdus Samad and Janmobhumi Nirmata (JV), (4) M/S. Mohammed Eunus and Brothers (Pvt.) Ltd. and TEL-ME-JV as responsive but the bid of Messers Abdus Samad and Janmobhumi Nirmata (JV) quoting 9,93,05,624.00 as the lowest bid and upon an evaluated rate the said bid stood at TK. 9,82,85,958.00 and recommended for the approval and necessary action enclosing the concerned papers of the bids though initially the bid of the writ petitioner, quoting rate at Tk.10,55,12,076.55, was allegedly found to be substantially respon­sive tender. Thereafter, on 19.03.2003 vide Memo. No.5-582/1006 the Superintendent Engineer sent an amended comparative statement for further consid­eration and necessary action to the addi­tional Chief Engineer, RHD, Comilla Zone, Comilla. The writ-petitioner further alleged that upon opening the tender from a comparative statement the writ-petition­er also only shown responsive at TK.10,55,12,076.55 being the lowest quoting rate 7.68% of the Engineer's esti­mate finding it the only responsive tender and forwarded to the writ-respondent No.2 under Memo No. 5-384/5645 dated 28.12.2002 for acceptance. The respon­dent alleged that the remaining 4 tenders were found and reported to be non-respon­sive and defaulters to comply with the requirements of tender and in furnishing the necessary/required papers and docu­ments including the "full particulars of the contractor's RHD registration book" which was decided at the 70th (2002-2003) meeting of RHD purchase commit­tee. The respondent further alleged that while he was waiting to get the work order, as a right has accrued to him to get the same, he surprisingly come to know that the writ-respondent No.3 sent a letter to writ-respondent No.2 for correction of the tender price illegally by curing the defects of 2 bidders namely, M/s. Abdus Samad and Janmobhumi Nirmata and (JV) TEL-MI-JB who were earlier found non-responsive and defaulter and instructed them to furnish Photostat copy of full book of registration (neither original nor attested) to submit after the comparative statement/assessment was made on 28.12.2002 vide Memo No.263/1(5) dated 01.03.2003. That the respondent No.1 issued the impugned letter vide Memo No.5-535/1006 dated 19.03.2003 for awarding the contract in favour of M/s. Abdus Samad and Janmobhumi Nirmata (JV) instead of the writ-petitioner, Mohammed Eunus & Brothers (Pvt.) Ltd, the only alleged substantially responsive bidder has been denied his right to get the contract which is not tenable in law. The writ-petitioner further alleged that the ten­der of the writ-petitioner was found in order, responsive with due process of law and in terms and conditions of the tender schedule and as such the impugned letter (Annexure-D) is illegal, whimsical and not binding upon the writ-petitioner and as such the same is without lawful authority and is of no legal effect.
 
4. In making the Rule absolute in Writ Petition No.3570 of 2003, the High Court Division ordered that: 
 
"Accordingly, it would now be incumbent upon the 'Respondent to start afresh the evaluation process of only that bid that was already deter­mined to be substantially responsive in accordance with the specific provi­sions of the Instruction. In other words, that would leave only the peti­tioner's substantially responsive bid as the sole bid to be considered for evaluation with a view to an award of the contract. In this regard, the Respondents are directed to accept the petitioner's bid as the only substantial responsive bid on condition, and as per the undertaking given to this Court by the learned Counsel for the petitioner Mr. Mahbubur Rahman, that the petitioner shall pay the lowest contract value rate quoted by the ben­eficiary of the Notice to commence dated 31.12.2003. That is, the peti­tioner undertakes to carry out the works at the lowest rate of Tk.9,82,85,958/-(Tk. Nine Crore eighty two lac, eighty five thousand nine hundred and fifty eight only) quoted by M/S Abdus Samad and Janmobhumi Nirmata and as reflected in the Notice to commenced in place of the petitioner's initially quoted contract value rate of Tk.10,55,12,076.55 (Tk. Ten crore, fifty five lac, twelve thousand and seventy six and paisa fifty five only). In this regard it would also be incum­bent upon the respondents to refund the earnest money amounting to Tk. 23, 00,000/- (Tk. Twenty three lac) paid by the petitioner and already enchased by the Respondent thereby restoring the petitioner to the position that the petitioner would have been as if the unlawful actions as quashed herein had never been initiated and proceeded upon by the Respondents." 
 
5. Being aggrieved by the judgment and order as passed by the High Court Division the respondent No.1 by leave filed Civil Appeal No.244 of 2005 by leave and the contractor, who completed work, being affected by the said judgment preferred Civil Appeal No.245 of 2005 by leave.
 
6. Leave was granted to consider the sub­missions of Mr. A.F. Hasan Ariff, learned Attorney General with Mr. Fida M. Kamal, learned Additional Attorney General, appearing for the appellants in C.A. No. 244 of 2005 that the High-Court Division erred in law in making the rule absolute instead of not holding that the instant writ petition is not maintainable in respect of a plain and simple commercial contract, not rooted in any statute, and also arising out of a preliminary tender evaluation process, which was not even approved by the Chief Engineer, at the time of filing of the writ petition, and as such the writ petition was  clearly not maintainable  in the  facts  and circum­stances of the case. The learned Attorney General further submitted that the High Court Division erred in law in making the rule absolute by failing to appreciate, that the initial recommendation of the Superintendent Engineer, being an inter­nal departmental communication not endorsed to the writ petitioner, is a mere initial recommendation without creating any legal right in favour of the writ peti­tioner, until approved by the Chief Engineer after scrutiny done by the com­mittee of purchase. The learned Attorney General further submitted that the High Court Division erred in law for not consid­ering that non-submission of full book of registration was a minor deviation as determined by the authority and not a material deviation affecting unfairly the competitive position of the tenderers because such minor deviation had no influence or effect on the pricing of the bid of qualification of the bidders and the High Court Division was clearly wrong in holding that non-filing of full book of reg­istration was a material deviation, more particularly, when treasury challan evi­dencing the renewal of their registration, was submitted with the bid The learned Attorney General further submitted that the High Court Division failed to notice clause 2.6.1 of Volume I of 4 which clear­ly provided as follows 'Information relat­ing to examination, clarification, evalua­tion and comparison of tenders and rec­ommendations for the award of a contract shall not be disclosed to tenderers or any other person not officially concerned with such process until the award to the suc­cessful tenderer has been announced. Any effort by a tenderer to influence the employers processing of tenders or award decisions may result in the rejection of his tender' and in the circumstances, when the writ petition was filed, the writ-respon­dents were engaged in the process of eval­uation of the tenders submitted which was not yet finalized and no legal right having accrued to the writ petitioner, the same ought to have been summarily rejected.
 
7. Leave was granted to consider the sub­missions of Mr. Mahmudul Islam, learned Counsel, appearing for the appellants in C.A.No.245 of 2005 submitted that "the instant writ petition involving a commer­cial contract containing an arbitration clause the High Court Division was wrong in holding the writ petition maintainable. The learned Counsel further submitted that the parties having agreed to the arbi­tration clause, the High Court Division upon a misinterpretation of the arbitration clause held that arbitration is not an effica­cious remedy. The learned Counsel further submitted that the High Court Division failed to notice that the writ petitioner can­not claim anything else than damages if the contract has been unlawfully cancelled and that there cannot be any specific per­formance of the contract even in the writ jurisdiction. The learned Counsel further submitted that the Government having invited Tenders and the present petitioner having participated in the tender and hav­ing done majority of the work after having been awarded the contract as the lowest bidder and the present petitioner having in no way been involved in the cancellation of the contract of the writ petitioner, the High Court Division was wrong in hold­ing that the present petitioner entered into the subsequent contract at his own peril. The learned Counsel lastly submitted that the question whether the writ-petitioner was entitled to extension of time is a dis­puted question of fact which cannot be resolved in the writ jurisdiction and arbi­tration was the proper remedy which the writ petitioner did not avail.
 
8. In Writ Petition No.6895 of 2003 the letter dated 30.10.2003 issued by the respondent No.1 (Annexure-J to the Writ Petition) cancelling the contract-work relating to in tender No.05/2002-03/SE/SRC Group No.1 for construction of road embankment by earth and flexible pavement over it at both ends of approach of the under construction Fenchuganj bridge at the 25th K.M. of Sylhet Fenchuganj Road under Sylhet Road Division of Sylhet Road Circle during the year 2003 after part completion and forfei­ture of the bank guarantee amounts for Tk. 24,99,262/- and Tk.12,49,631/- being security deposit have been challenged.
 
9. In Writ Petition No.6456 of 2003 the letter bearing memo No. 4286 dated 20.10.2003 issued by the respondent No. 1 (Annexure 1 to the Writ Petition) can­celling the contract of work relating to Strengthening of existing pavement of Sylhet-Fenchuganj-Rajnagar-Moulivibazar-Srimangal-Shaistagonj-Teliapara-Jagadishpur (with link to Sherpur) under Moulivibazar Road Division of Sylhet Road Circle for the year 2002-03 corresponding to Tender No.1 (one) Group No. 2 (two) Road No.N-28, Link Np.323, location 2nd to 5th KM, 13th to 15th KM, 20th to 22nd KM, after part completion and forfeiture of bank guarantee for Tk.73,64,600/- only have been challenged.
 
10. In Writ Petition No.6461 of 2003 the letter bearing Memo No.4285 dated 20.10.2003 issued by the respondent No.1 (Annexure G to the writ petition) can­celling the contract relating to Strengthening of existing pavement of Sylhet-Fenchuganj-Rajnagar Moulivibazar-Srimangal-Shaistagonj-Teliapara-Jagadishpur (with link to Sherpur) under Moulivibazar Road Division of Sylhet Road Circle for the year 2002-03 Tender No.1(one)/2002-2003/SE/SRC/Group No.1 (one), Road No.N-2, Link No.19 location 74th KM to 82nd KM, after part completion and the forfeiture bank guarantee amount of Tk.76,29,600/- have been challenged.
 
11. In Writ Petition No. 6457 of 2003 the letter bearing memo No.4287 dated 20.10.2003 issued by the respondent No. 1(Annexure D to the Writ Petition) can­celling the contract  relating to Strengthening of existing pavement of Sylhet-Fenchuganj-Rajnagar Moulivibazar-Srimangal-Shaistagonj Teliapara-Jagadishpur (with link to Sherpur) under Moulivibazar Road Division of Sylhet Road Circle for the year 2002-03 12th to 24th KM tender No. 3(three)/02-03/SE/SRC and forfeiture of bank guarantee amount of Tk.72,48,500/- have been challenged.
 
12. In all the aforesaid writ petitions the respondent No.1 contested the Rules by filing separate affidavit-in-opposition denying the allegations made against the respondents and justifying the cancella­tion of the contract and forfeiture of the bank guarantee amounts, being perform­ance guarantee and security amount, in accordance with the terms and condition of the respective contracts. The High Court Division on consideration of the materials on record and the submission of the respective parties made the Rules absolute vide separate judgments and orders dated 22.06.2004 passed in Writ Petition No.3570 of 2003 and Writ Petition No.6895 of 2003 and by the judg­ment and order dated 23.06.2004 passed in Writ Petition Nos.6456 of 2003, 6461 of 2003 and 6457 of 2003.
 
13. In making the rule absolute issued in Writ Petition No.6895 of 2003 the High Court Division directed the respondent "to restore the petitioner to the petition it was in prior to the cancellation of the con­tract effected on 30.10.2003 thereby facil­itating the completion of the works in accordance with a revised work schedule that may be furnished by the petitioner in due course.  The respondents are also directed to refund to the petitioner the amounts of the Bank Guarantee that were encashed on 30.10.2003 as evident in Annexure-K and thereafter allow for the issuance of new Bank Guarantees for a period commensurate with that reflected in the revised works schedules to be sub­mitted by the petitioner. The respondents are to comply with the directions within one month from the date of receipt of this judgment."
 
14. Being aggrieved the respondent No.1 preferred Civil Appeal No.246 of 2005 by leave and the contractor, who completed the work, being affected by the said judgment preferred Civil Appeal No.247 of 2005.
 
15. In making the rules absolute in Writ Petition No.6456 of 2003, 6461 of 2003 and 6457 of 2003 the High Court Division directed the respondents
 
"to restore the petitioner to the position it was in prior to the cancellation of the contract effected on 20.10.2003 (Annexure-D) thereby facilitating the completion of the Development Works under contract in accordance with a revised work schedule that may be fur­nished by the petitioner in due course. The respondents are also directed to refund to the petitioner forfeited and admittedly encashed amount of the Bank Guarantee, such forfeiture being evident in Annexure-D to the Writ Petition and Annexure-35 to the Affidavit-in-Opposition filed on behalf of the respondent No.1 and the encash­ment being admitted before the Court by the Learned Additional Attorney General, and thereafter allow for the issuance of a new Bank Guarantee for a period of commensurate with the reflected in revised work schedule to be submitted by the petitioner. The respondents are to comply with the directions within one month from the date of receipt of this judgment."
 
16. Being aggrieved there-against the respondent No.1 preferred C.A. No.248 of 2005 against judgment and order passed in Writ Petition No.6456 of 2003, Civil Appeal No.249 of 2005 against the judg­ment and order Writ Petition No.6461 of 2003 and Civil Appeal No.250 of 2005 against the judgment and order Writ Petition No.6457 of 2003.
 
17. Leave was granted to consider the sub­mission of Mr. A.F. Hasan Ariff, learned Attorney General, appearing for the appel­lants in all the appeals who has submitted that "the tender has been given to a 3rd party and the work having been undertak­en is in the process of completion, as such, High Court Division erred in law in not considering that the respondent has got no legal right to come under Article 102 of the Constitution of the people's republic of Bangladesh. The learned Attorney General further submitted that the High Court Division traveled beyond extent and jurisdiction of Article 102 of the Constitution of the People’s Republic of Bangladesh in as much as in entertaining jurisdiction of judicial review where dis­puted question of fact are involved."
 
18. Mr. Murad Reza, learned Additional Attorney General, appearing for the appel­lants submitted that the High Court Division erred in Law in making the Rule absolute instead of not holding the instant writ petition is not maintainable in respect of a plain and simple commercial contract, not rooted in any statue; that it has arisen out of preliminary tender evaluation process, which was not even approved by the Chief Engineer-, at the time of filing of the writ petition and as such, the writ peti­tioner was clearly not maintainable in the facts and circumstances of the case; that the initial recommendation of the Superintendent Engineer, being an inter­nal departmental communication not endorsed to the respondent, is a mere ini­tial recommendation without creating any legal right in favour of the respondent until approved by the Chief Engineer after scrutiny done by the Committee of pur­chase. The learned Additional Attorney General further submitted that non-sub­mission of full book of registration was a minor deviation as determined by the authority and no material deviation affect­ing unfairly the competitive position of the tenderers because such minor devia­tion had no influence or effect on the pric­ing of the bid of qualification of the bid­ders and the High Court Division was clearly wrong in holding that non-filing of full book of registration was a material deviation, more particularly, when treas­ury challan evidencing the renewal of their registration, was submitted with the bid. The learned Additional Attorney General also submitted that the High Court Division failed to notice clause 2.6.1 of Volume I of 4 which clearly pro­vided that "information relating to exami­nation, clarification, evaluation and comparison of tenderers and recommendations for the award of a contract shall not be dis­closed to tenderers or any other person not officially concerned with such process until the award to the successful tenderer has been announced. Any effort by the tenderer to influence the employer's pro­cessing of tenders or award decisions may result in the rejection of his tender”, and in the circumstances, when the writ petition was filed, the writ-respondents were engaged that in the process of evaluation of the tenders submitted, which was not yet finalized, and no legal right having accrued to the writ-petitioner, the same ought to have been summarily rejected and the High Court Division thus fell into an error of law. The learned Additional Attorney General finally submitted that the tender has been given to a 3rd party and the work having been undertaken in the process of completion and as such, the High Court Division erred in law in not considering that the respondent has got no legal right to come under Article 102 of the Constitution and the High Court Division travelled beyond extent and jurisdiction of Article 102 of the Constitution inasmuch as in entertaining jurisdiction of judicial review where dis­puted question of fact are involved and as such, appeal may be allowed.
 
19. Mr. Murad Reza further submitted that the writ petition itself being against a memo dated 19.03.2003 is of the nature of internal departmental communication addressed to the Additional Chief Engineer, RHD, Comilla Zone, Comilla supplying a comparative statement in an amended form for necessary action by the Superintendent Engineer, RHW, Sylhet Circle, dated 19.03.2003 Annexure-D to the writ petition. Being confidential process of departmental communication for examination of tender creating no sub­stantial right upon the writ-petitioner was not supposed to impugning a copy thereof procuring otherwise than in a legal means could not be impugned in a writ petition in respect of a tender bid which did not cre­ate any right to be enforced by way of a writ petition and in that view, the writ peti­tion was not maintainable inasmuch as no contractual relationship has yet been established between the parties so as to give raise to a dispute between the parties and there being no contractual relationship as yet formed and that the transaction between the parties where the same the respondent and RHD was not acting in the capacity of sovereign or no contractual obligation arising out of statutory duty or statutory contract and the public authority has also not been invested with any statu­tory power and that the petitioner did not even seek relief against a breach of statu­tory obligation. The transaction if at all matured would be an ordinary commercial contract or contract of general nature, a pure and simple contract the writ-petition­ers could not invoke the writ jurisdiction. The learned Additional Attorney General has referred to a decision in the case of Bangladesh Power Development Board and others-vs-Md. Asaduzzaman Sikder reported in 9 BLC (2000) (AD) 1.
 
20. Mr. M. Amirul Islam and Ms. Tania Amir, learned Counsel, appearing for the respondent submitted that the tender of the writ petitioner was found in order and is responsive and as such, it was recom­mended by the Superintendent Engineer RHD, Sylhet Road Circle, Sylhet to the Additional Chief Engineer, RHD Comilla Zone, Comilla who also opined and rec­ommended to the Chief Engineer RHD, Sarak Bhaban, Ramna, Dhaka vide Memo. No.46(Kha)27 dated 02.01.2003 and the matter was also discussed in a meeting at Comilla by the relevant and competent committee who opined in favour of writ petitioner for awarding the contract and accordingly, the writ-peti­tioner submitted the pay order amounting TK.23,00,000.00 covering the earnest money; while the petitioner was waiting to get the work order as of right he surpris­ingly came to know that the writ-respon­dent No.3 sent a letter to writ-respondent No.2 bidder namely(1) M/S Abdus Samad and Janmobhumi Nirmata (JV) (2) TEL-MI-JV who were earlier found non-responsive and defaulter and instructed them to furnish photostat copy of full book of registration after the comparative statement/assessment was made on 28.12.2002 vide Memo. No.263/1(5) dated 01.03.2003; that the respondent No.1 issued the impugned letter vide Memo.No.5-532/1006 dated 19.03.2003 for awarding the contract in favour of M/S. Abdus Samad and Janmobhumi Nirmata (JV) instead of the writ-petition­er, Mohmamad Eunus and brothers (Pvt.) Ltd. the only substantially responsive bid­ders depriving of and denying his right to get the contract which is not tenable in law; that the impugned letter dated 19.03.2003  issued by the writ-respondent No.1 is contrary to the earlier letter dated 28.12.2002 issued by him is and the same being contrary to the provisions of law and the terms and conditions of the sched­ules of the contract is not sustainable in law and as such, the same is liable to be cancelled, set aside and declared to be without  lawful  authority. The learned Counsel finally submitted that the tender of the writ-petitioner was found in order, responsive with due process of law and in terms and conditions of the tender schedules and the impugned letter is without lawful authority inasmuch as it violates the fundamental rights of the writ-petitioner guaranteed under the Constitution.
 
21. In the aforesaid 7(seven) appeals, the nature and issue involve being similar were taken up together for hearing and disposed of by a common judgment. In Writ Petition No.3750 of 2003 the writ petitioner though challenged the illegality; as to allowing two non responsive tender bidders for consideration in granting the contract-work in reference but the writ  petitioner did not challenge the granting of the contract as given to the appellants of C.A. No.245 of 2005 and further it has been brought to the our notice that the contract work has already been completed by the subsequently appointed contractors namely the appellant of Civil Appeal No.245 of 2005. Thus, the prayers for the relief as made in the writ petition have become infructuous.                               
 
22. In Writ Petition Nos.(1) 6895 of 2003, (2) 6456 of 2003, (3) 6461 of 2003 and (4)  6457 of 2003, the same writ petitioner was given the contracts, who in terms of the  contract progressed with the contract-work but after completion of about 12% of the work, stopped the contract work, for which the respondent Nos.1 and 2 on sev­eral occasions asked the writ petitioner in writing to proceed with the work in terms of the time-schedule given by the contrac­tors but for reasons as detailed in the reply given by the writ petitioner no further work was done by the contractor and thereby the respondents referring to clause 44.1 of condition of contract of Vol-2 of 4 of Standard Tender Document and follow­ing clause 45(1)(Ka) cancelled the contract and forfeited the performance guarantee amount and the security amount deposited with the Respondent No.1 through bank guarantee and that challenging the afore­said cancellation of the contract and for­feiture of the amount, the writ petitioner has filed the writ petition.
 
23. It appears from the submissions and the materials on record that the writ peti­tioner at one stage stopped the contract-work showing reasons including raising season and defaults on the part of the respondents and also alleging interference by 3rd parties namely Naser Rahman, the then sitting M.R, who is also the son of the then Finance Minister Mr. M. Saifur Rahman, for refusal to bow down to their illegal demands for which the writ-peti­tioner claimed to have put to sufferings of various nature including physical torture. Though the allegations have been made against said Naser Rahman but he has not been made a party in the writ petitions. The respondents disputed the allegations of loss, injury and torture and asserted that the cancellation of the contracts have been made in accordance with terms of the con­tract and with due notice for failure to complete the contracted work within the stipulated time limit.
 
24. Thus it appears that there were disput­ed question of fact which requires to be adjudicated upon taking evidence for com­ing to a proper decision. However the High Court Division on detailed discussion found wrong with the respondents and made the Rules absolute with directions.
 
25. It appears that the writ petitions were brought in respect of the contractual mat­ters and that the related contractual works having been completed by now, as has been asserted by the learned advocates for the appellants before us, the directions given by the High Court Division in dis­posing of the respective rules can not be complied with. It also appears that the writ-petitioner claimed damages and com­pensations on various accounts but with­out giving required information and data as to the quantum' of amount and in order to adjudicate on such damages and com­pensations evidence need be produced and proved and for the same the Civil Court is a proper forum.
 
26. The facts giving rise to Civil Appeal No.245 of 2005 being an appeal at the instance of a 3rd party an independent con­tractor, who was awarded the contract has no connection whatsoever the dispute between  the  Superintendent  Engineer, RHD Sylhet and others, appellants and Md. Eunus and Brothers (Pvt.) Ltd., respondent. Subsequently, upon failure of the respon­dent, Md. Eunus and Brothers (Pvt.) Ltd. to perform the obligations under its contract which left to the cancellation of the respon­dent's  contract with Superintendent Engineer, RHD Sylhet and others.
 
27. The instant appeals arose out of judg­ment and order dated the 22nd day of June, 2004 by the High Court Division in Writ Petition No.3570 filed challenging the letter/order  bearing  Memo No.5-532/1006 (Annexure-D to the writ peti­tion) dated 19.03.2003 issued by the writ-respondent No.1, Superintendent Engineer, RHD, Sylhet Road Circle, Sylhet with a prayer to issue Rule Nisi upon the writ-respondents to show cause as to why the letter (Annexure-C to the writ petition) vide Memo No.5-532/1006 dated  19.03.2003  issued by the writ-respondent No.1 should not be declared to have been issued without lawful authority and is of no legal effect which is violative of the fundamental rights of the writ-peti­tioner as guaranteed under the Articles 27, 31, 40 of the Constitution of Bangladesh making the Rule absolute.
 
28. It appears from the record that the same impugned Memo dated 19.03.2003 was addressed to the Additional Chief Engineer, RHD, Comilla Zone, Comilla Circle by the Superintendent Engineer, RHD. Sylhet Road Circle, Sylhet stating that "যথাযথ সম্মান প্রদর্শন পুর্বক সূত্রে তাঁহার স্মারকের মর্মানুযায়ী ও অত্রাফিসের স্মারকের অনুবৃত্তিক্রমে বিষয়ে উল্লেখিত কাজের তুলনামুলক বিবরণী  সংশোধন পূর্বক পরবর্তী প্রয়োজনীয় ব্যবস্থা গ্রহনের জন্য প্রেরণ করা হইল "
 
29. It appears that the aforesaid letter was an internal departmental communication between the authorities namely the Superintendent Engineer, RHD, Sylhet Road Circle, Sylhet and the Additional Chief Engineer, RHD, Comilla Zone, Comilla Circle in the process of evaluat­ing the bids whereby suggesting subse­quent necessary action to be taken by amending the comparative statement of the respective responsive bids regarding the construction of 434.35 m long RC. girder bridge at 34th Km (at Link road) of Sylhet-Salutikor Companygonj-Bholagonj road over river Dalai under Sylhet Road Division of Sylhet Road Circle, Sylhet during the year 2002-2003, the subject matter of the instant bid.
 
30. The High Court Division, however, by the impugned order made Rule absolute holding that it would now be incumbent upon the respondent to start afresh the evaluation process of only the bid of the writ-petitioner that was already deter­mined to be substantially responsive in accordance with the specific provision 5.1 of the instructions. In other words, upon scrutiny of the bids in accordance with provision 5.1 of the Instructions of the ten­derers would leave only the writ-petition­er substantially responsive bid as the sole bid to be considered for evaluation with a view to award the contract. Accordingly, the respondents were direct­ed to accept the writ-petitioner's bid as the only substantial responsive bid on condi­tion and as per the undertaking given to the High Court Division by the learned Counsel for the writ-petitioner Mahbubur Rahman, that the petitioner shall pay the lowest contract value rate quoted by the beneficiary of the notice to commence dated 31.12.2003. That is, the writ-peti­tioner undertakes to carry out the works at the lowest rate of TK. 9, 82, 85,958.00 (Taka nine crore eighty two Lac eighty five thousands nine hundred and fifty eight only) quoted by M/S Abdus Samad and Janmobhumi Nirmata in place of the writ-petitioner's quoted bid contract at Tk. 10, 55, 12,076.55 (Taka ten crore fifty five lace twelve thousand and seventy six and paisa fifty five only) (underling is ours). In this regard it would also be incumbent upon the respondents to refund the earnest money amounting to TK.23, 00,000.00 (Taka twenty three lac) paid by the writ-petitioner and already encashed by the respondents thereby restoring the writ petitioner to the position that the writ-petitioner would have been, as if, the unlawful actions as quashed herein had never been initiated and proceeded upon by the respondents.
 
31. The appellant, however, has submitted that the High Court Division erred in law in making the Rule absolute impugning the aforesaid internal departmental com­munication dated 19.03.2003 instead of holding that the said letter was written in the process of tender evaluation which was not even approved by any authority observing the required formalities under the bid fearless the Chief Engineer at the time of filing of the writ petition and as such, impugning initial recommendation by the Superintendent Engineer to be con­sidered by the Additional Chief Engineer being purely internal departmental com­munication which is under the terms of the tender documents strictly confidential and not for any public consumption as any decision was yet to be taken by the author­ity but merely an initial recommendation without creating any legal right in favour of the writ petition until the same is approved and communicated to the con­cerned party upon scrutinizing the same by the purchase committee inasmuch as the suit exercise could .not be termed to be one under scrutiny of the bid as contem­plated ill clause 5.1 of the Tender Document because the authority is yet to decide the eligibility of the bid upon exer­cising the question as to whether there was any contravention thereof in arriving at a decision as to whether the non submission of filed copy of rejectable lacks the requirement required for in clause 5.1 of the Tender Instruction a decision is yet to be taken for the purpose of scrutiny required for the purpose. In that matter the writ petition is not maintainable in the facts and circumstances. The appellants, however, persistently submitted that the tender was in respect of pure and simple commercial contract not rooted on any statute so as to invoke the writ jurisdiction.
 
32. The respondents, however, alleged the impugned letter dated 19th of March, 2003 issued by the appellant is contrary to the provision of law terms and conditions of the schedules of contract which is not sustainable in law inasmuch as the tender sub­mitted by the writ petitioner having found to be responsive and was recommended by the Superintendent Engineer, RHD, Sylhet Road Circle, Sylhet to the Additional Chief Engineer, RHD Comilla Zone, Comilla with a recommendation to the Chief Engineer, RHD, Sarak Bhavan, Ramna, Dhaka vide Memo No. 46(Kha) 27 dated 02.01.2003 the said letter dated 19.03.2003 is liable to be cancelled setting aside and declared to be without lawful authority.
 
33. It appears from the Memo No.5-384/880 dated 11.03.2003 (Annexure-D) that the Superintendent Engineer, RHD, Sylhet Road Circle, Sylhet has referred a comprehensive Memo for information and necessary action stating that the tender was called on 29.08.2002 and received five tenders which on proper scrutiny were evaluated as under; 
Substantially responsive  দরদাতাদের নামের তালিকা 
 
ক্রমিক নং   ওপেনিং মেমো
এর ক্রমিক নং
দরদাতাদের নাম
       
  মোঃ ইউনুস এন্ড ব্রাদার্স প্রাঃ লিঃ
 
 
Non responsive দরদাতাদের নামের তালিকা
ক্রমিক নং ওপেনিং মেমো
এর ক্রমিক নং
Non-responsive-
দরদাতাদের নামের তালিক
Non-responsive
করার কারন
       
১। মেসার্স আব্দুস সামাদ এন্ড জন্মভুমি নির্মাতা (জেভি) For non-submission of full book of registration
       
২। টেল-মি-জেভি do
       
৩। মোঃ আনোয়ার হোসেন For non-submission of security deposit
       
৪। সিটি এল-বিসি এল (জেভি) VAT & IT Certificate is not proper.
 
 
And found one of মোঃ ইউনুস এন্ড ব্রাদার্স প্রাঃ লিঃ to be initially responsive quoting a rate at TK.10, 55, 12,076.55 (Taka ten crore fifty five lac twelve thousand and seventy six and paisa fifty five only) which was accordingly sent to the Chief Engineer, RHD, Dhaka 02.01 .2003(Annexure-D to the writ petition) for action. Accordingly, on 22.02.2002 the Road and Highway Division in its 70tn meeting discussed the subject matter and referred the recommen­dation/decision to the purchase committee for necessary action. The purchase com­mittee in its 30th meeting (2002-2003) dated 25.11.2002 considered the pros and cons of the matter and on 19.12.2003 accorded approval of the proceeding of the said meeting regarding the decision regarding "full of contractors RHD regis­tration book". Accordingly the said pur­chase committee scrutinized and evaluat­ed the tenders including those of one M/S. Abdus Samad and Janmobhumi Nirmata (JV) and Tel-Mi-JV who were initially found to be non-responsive for want of "full contractor's RHD registration book" along with Md. Eunus and brothers (Pvt.) Ltd. and the said committee and it ulti­mately found that the tender of M/S. Abdus Samad and Janmobbumi Nirmata (JV) 9,93,05,631.00 (Taka nine crore ninety three lac five thousand six hundred thirty one) to be lowest tender and upon evaluating the rate, the said amount stood at 9,82,85,958.00 (Taka nine crore eighty two lac eighty five thousand nine hundred fifty eight) and with this recom­mendation referred the matter for approval. It appears that the said 30th meeting dated 25.11.2002 considered the pros and cons of the bid under the tender which upon considering the evaluating report approved the findings, inter-alia, that Volume 1 of 4 এর Clause No.5.1 মোতাবেক কিছু সংখ্যক Documents এর সত্যায়িত অনুলিপি ঠিকাদারগণ কে Tender এর সহিত দাখিল করিতে বলা হইয়াছিল, যাহা দাখিল না করিলে দরপত্র টি সম্পুর্ণ রুপে বাতিল বলিয়া গণ্য হইবে। ইহার উল্লেখযোগ্য ১ (এক)টি document হইল clause 5. 1 (c) (in) i.e. "Full copy of contractor's RHD Registration Book" এই ক্ষেত্রে উপরোক্ত ৩(তিন) টি গ্রুপে দরপত্রের সকল দরপত্রদাতার দরপত্র পরীক্ষা করিয়া দেখা যায় কোন দরপত্র দাতাই তাহাদের RHD Registration Book এর সকল পৃষ্ঠার Photocopy দাখিল করে নাই। তবে relevant Section 7 of the Instructions of the Tender অনুযায়ী হাল নাগাদ নবায়নের স্বপক্ষে Registration Book এর প্রয়োজনীয় পৃষ্ঠা সমূহ সকল দরপত্র দাতাই দরপত্রের সহিত সন্নিবেশিত করিয়াছেন। দরপত্র আহবানকারী কর্তৃপক্ষ সিলেটে সড়ক সার্কেল কর্তৃক দরপত্র মুল্যায়নকালে উপরোক্ত একই কারনে কোন কোন দরপত্রকে  Responsive আবার কোন কোন দরপত্রকে Non-responsive করা হইয়াছে and thereafter, upon examination of the comparative reports it found, inter-alia, that Tender Volume 1 of 4 এর Clause No.5.1 মোতাবেক কিছু সংখ্যক Documents এর সত্যায়িত অনুলিপি ঠিকাদারগনকে Tender এর সহিত দাখিল করিতে বলা হইয়াছে, যাহা দাখিল না করিলে দরপত্রটি সম্পুর্ণরুপে বাতিল বলিয়া গণ্য হইবে। ইহার উল্লেখযোগ্য ১(এক) টি document হইল clause 5. 1 (c) (in) i.e. "Full copy of contractor's RHD Registration Book" এই ক্ষেত্রে উপরোক্ত ৩(তিন) টি গ্রুপে দরপত্রের সকল দরপত্রদাতার দরপত্র পরীক্ষা করিয়া দেখা যায় কোন দরপত্র দাতাই তাহাদের RHD Registration Book এর সকল পৃষ্ঠার Photocopy দাখিল করে নাই। তবে Section 7 of the Instructions of the Tender অনুযায়ী হাল নাগাদ নবায়নের স্বপক্ষে Registration Book এর প্রয়োজনীয় পৃষ্ঠা সমূহ সকল দরপত্র দাতাই দরপত্রের সহিত সন্নিবেশিত করিয়াছেন। দরপত্র আহবানকারী কর্তৃপক্ষ সিলেটে সড়ক সার্কেল কর্তৃক দরপত্র মুল্যায়নকালে উপরোক্ত একই কারনে কোন কোন দরপত্রকে  Responsive আবার কোন কোন দরপত্রকে Non-responsive করা হইয়াছে
 
34. The meeting also considered regarding the up-to-date renewal of the tender and arrived at the finding that "Full copy of contractor's registration book" এর বিষয়টি মূল্যায়নে নিম্নস্বাক্ষরকারী registration book issue থেকে হালনাগাদ নবায়ন সংক্রান্ত তথ্যাবলী সন্নিবেশিত প্রয়োজনীয় পৃষ্ঠাসমুহ যে সকল দরপত্র দাতা সংযুক্ত করেছেন একমাত্র তাহাদিগকেই Responsive Tender হিসাবে বিবেচনা করা হইয়াছে, যাহারা দেন নাই তাহাদের দরপত্র বিবেচনা করা হয় নাই। অতএব কোনটি Responsive করা হইয়াছে কোনটি করা হয় নাই ইহা ঠিক নহে।
 
35. The meeting was also attended by Mr. Michael Slaughter, Technical Consultant IDC-3 found the 3(three) who also tenders to be responsive and approved the finding of the said meeting that কিছু সংখ্যক ঠিকাদার Tender Volume 1 of 4 অর্থাৎ মূল টেন্ডার ডকুমেন্টের সহিত ঠিকাদারদের লাইসেন্সের সম্পুর্ণ বহির ফটোকপি সংযুক্ত করেন নাই তবে সকল দরপত্র দাতাই লাইসেন্সের হালনাগাদ নবায়নের স্বপেক্ষে ট্রেজারী চালানের মাধ্যমে টাকা জমা দেওয়ার রশিদ দাখিল করিয়াছেন i.e. the material connected purchaser required for the purpose contemplated under clause 5.1 was submitted to make the bid respon­sive. বিষয়টি Minor Deviation Tenderer হিসাবে গন্য করা যায় । এ ক্ষেত্রে সংশ্লিষ্ট Tenderer এর নিকট হইতে লাইসেন্সের বহি ও সংশ্লিষ্ট কাগজপত্র সংগ্রহ করতঃ পরীক্ষা করিয়া দরপত্রের চাহিদা মত ঠিকাদারী লাইসেন্স যদি সঠিক প্রমানিত হয় সেক্ষেত্রে দরপত্রের চাহিদা মোতাবেক "Full of Contractor's RHD Registration Book" বিষয়টি গ্রহনযোগ্য বলিয়া সভায় অভিমত প্রকাশ করা হয় i.e. found to be inconformity with clause 5.1 thereof. । সওজ ক্রয় কমিটির অভিমতের সহিত অতিরিক্ত প্রধান প্রকৌশলী, সওজ, কুমিলT জোন, একমত পোষন করেন এবং তাঁহার ইতিপূর্বে প্রদত্ত এই বিষয়ে সিদ্ধান্ত বহাল রাখার পক্ষে মতামত ব্যক্ত করেন and accordingly, recommended, inter alia, that কিছু সংখক ঠিকাদার Tender Volume 1 of 4 অর্থাৎ মূল টেন্ডার ডকুমেন্টের সহিত ঠাকাদারের লাইসেন্সের বহির ফটোকপি সংযুক্ত করেন নাই তবে সকল দরপত্র দাতাই লাইসেন্সের হালনাগাদ নবায়নের স্বপেক্ষে চালানের  মাধ্যমে টাকা জমা দেওয়ার রশিদ  দাখিল করিয়াছেন। বিষয়টি Minor Deviation হিসাবে গণ্য করা যায়। এ ক্ষেত্রে Tender এর নিকট হইতে লাইসেন্স যদি সঠিক প্রমানিত হয় সেক্ষেত্রে দরপত্রের চাহিদা মোতাবেক "Full of Contractor's RHD Registration Book" বিষয়টি গ্রহনযোগ্য বলিয়া বিবেচিত হইবে ।
 
36. The learned Additional Attorney General appearing for the appellants in respective appeals made the submission mainly on the ground of the maintainabil­ity of the writ petitions. It has been sub­mitted that there also being a provision for resolving the disputes, as may arise, through arbitration, the writ petitioner without exhausting the process of arbitra­tion is not entitled to take recourse to writ jurisdiction for the relief claimed in the writ petitions. It is submitted that the High Court Division has wrongly rejected the objection as to the arbitration observing that in the facts and circumstances of the case pursuing  the  issue  in arbitration would in effect mean referring the dispute from ceaser to ceaser, since the arbitrator as named in the contract are the officers of the executing agencies.
 
37.  Instant Conditions of Contract pro­vides for settlement of disputes as under; 

28.1. Except where otherwise provid­ed in the Contract all questions and disputes relating to the meaning of the specification, designs, drawings, and instructions of the Contract and all questions and disputes relating to the quality of workmanship or materials used on the Works, or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of, or relating to, the contract, designs, drawings, specifications, estimates instructions, orders or these Conditions of Contract or other Conditions provided in the Contract, or otherwise concerning the works or the execution or failure to execute the same, whether arising during the progress of the work or after the com­pletion or abandonment thereof shall be referred to the arbitration of an arbitrator not below the rank of the Superintending Officer designated in the Contract or a panel of arbitrators composed of one officer above the rank of the Superintending Officer designated in the contract (who shall act as an umpire) and two other offi­cers not below the rank of the Superintending Officer designated in the Contract appointed by the head of the Executing Agency in the manner provided by law relating to arbitration for the time being in force, who after such investigation as he or they may think, proper shall deliver his or their award which shall be final, conclusive and binding on all parties to this con­tract. 
 
38. The parties have bidded at the tender consciously and voluntarily accepting the terms and conditions regarding the named arbitrator for resolution of the dispute, if any, could not afterwards during the hear­ing of the writ petition alleged "the dis­putes to be from ceaser to ceaser". Further, if there be any dispute against the named arbitrator, the Arbitration Act, 2001 pro­vides for moving the relevant Court for appointment of alternative arbitrator by the Court and as such the reason given by the High Court Division in meeting the objection raised as to maintainability of the writ petition without recourse of arbi­tration proceeding cannot be sustained. It has been submitted that in Writ Petition No.3570 of 2003 the question of moving the arbitration earlier to filing of writ peti­tion does not arise inasmuch as the subject matter of the Rule is violation of the guidelines in considering the "responsive bid" and the question of arbitration arises only after award of contract and signing of the contract document, which contains the condition relating to arbitration. The learned Counsel for the writ-petitioner reiterated that in view of the urgency as to resolving the subject matter of the Rules issued in Writ Petition No.6895 of 2003, Writ Petition No.6456 of 2003, Writ Petition No.6461 of 2003 and Writ Petition No.6457 of 2003, the writ peti­tioner did not proceed with the arbitration clause of the contracts and for such non-compliance to proceed with the arbitration clause the respondents are not prejudiced in any away and there being necessary for staying the operation of the letter of can­cellation of the contract the writ jurisdic­tion was the only forum for getting effica­cious remedy at that stage.
 
39. Considering the facts  and circum­stances of the case and having regard to the stoppage of the contract-works, which are admittedly development works, and having regard to the delay in progress of the contracted works by the contractor-writ petitioner, which not being inconsonance with the time schedule of the works provided by the contractor-petitioner, we do not find substance as to the urgency as alleged for not complying with the arbitra­tion clause prior to moving the writ juris­diction. Further the parties having con­sciously and voluntarily agreed to resolve the dispute through the named arbitrator the parties should not be allowed to devi­ate from complying with term of the arbi­tration clause, moreso when    the Arbitration Act, 2001 has provided for change of named arbitrator.
 
40. In this regard we may quote a passage from the decision reported in AIR 1976 SC 127 (in the Case of M/S. Bisra Stone Lime Co. Ltd. Vs. Orissa State Electricity Board and another) wherein it is held that "But all question of law, one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the Court has dis­cretion under Section 34 of the Arbitration Act or under Article 226 of the Constitution and that the Court is better posted to decide such questions. The Arbitration Clause 23 is a clause of wide amplitude taking in its sweep even inter­pretation of the agreement and necessarily, therefore, of clause 13 therein."
 
41. Furthermore, there is paramount clause in the contract document regarding award of contract and the employer's right to accept or reject any or all tender as detailed in 32.1 of the said document as under;
32.1 Notwithstanding Clause 31 above, the Employer reserves the right to accept or reject any Tender (lowest prince or otherwise, and to cancel the Tender process and reject all tenders, at any time prior to the award of Contract, without thereby incurring any liability to the affect tenderer or tenderers or any obligation to inform the affected tenderer or ten­derers of the grounds for the Employer's action.
 
42. We refrained from making any comment on it because the said stage has not occurred when the writ petition was filed for the option of the employer resorting to the said clause in the circumstances of the case.
 
43. The learned Counsel for the writ-petitioner submitted that the contract being entered into in between the Government of Bangladesh, as the owner, and the writ-petitioner, as the contractor, and the money involved in the contract-work being Government money, any dispute relate to the contracts under reference is amenable to the writ jurisdiction and in support of his contention the learned Advocate relied on the decisions in the case of Meshbahuddin Vs. Government of Bangladesh reported in 47 DLR 515 and in the shaping case reported in 39 DLR (AD) 85 and in the case of the Managing Director, Dhaka WASA reported in 51 DLR (AD) 56, which case also deals with the principle of the legitimate expectation, and also the case of the Managing Director, WASA reported in 59 DLR (AD) 185.
 
44. The learned Counsel appearing for the appellants submitted that the contracts in reference being simple commercial con­tracts without involving any statutory pro­vision, any dispute arising from such con­tracts is not amenable under the writ juris­diction and in support of their submission they relied on various decisions of the superior Courts of the subcontinent.
 
45. The learned Counsel, in support of the aforesaid submission has referred to the case of Sharping Matshjibi Samabaya Samity Ltd. Vs Bangladesh and others reported in 39 DLR (AD) 85 wherein it has been held that- 
 
"Judicial thinking has crystallized on this subject in two clear-cut ways, namely, if it is a pure and simple con­tract which is entered into by the Government in its trading capacity for any breach of, such contract writ will not be available as remedial measure, on the other hand, if the contract is entered into by the Government in the capacity as sovereign then writ juris­diction can be invoked for breach of such contract, inasmuch as the Constitution gives the power directing a person performing any function in connection with the affairs of the republic or making an order that any acts done or proceeding taken by a per­son performing function in connection with the affairs of the republic then he can invoke the writ jurisdiction." 
 
46. The learned Counsel has referred to a case wherein a contract was conferred by a Statute and referred to a decision report­ed in AIR 2000(SC) 1005 (India Thermal Power Ltd. -vs- State of MP) wherein it has been held that- 
 
"Merely because a contract is entered into in exercise of a contract is con­ferred by a statute that by itself can­not render the contract a statutory contract. If entering into a contract containing prescribed terms and con­ditions is a must under the statute then that contract becomes a statutory con­tract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and condi­tions which have been incorporated therein as a result of a mutual agree­ment between the parties." 
 
47. He has also referred to a decision reported in AIR 2000 (SC) 2573 (Kerala State   Electricity Board -vs- Kurien E Kalathil and others) wherein it has been held that-  
 
"A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such con­tracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statu­tory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined accord­ing to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with proper­ty. Such activities may not raise any issue of public law Whether any amount is due and if so, how much and, refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The con­tract should have been relegated to other remedies." 
 
48. The learned Counsel has also referred to a decision reported in AIR 1976 SC 1216 (Kulchhinder Singh and others-vs-iardayal Singh Brar and others) wherein t has been held that- 
 
"At its best, the writ petition seeks enforcement of a binding contract but the neat, and necessary repellant is that the remedy of Article 226 is unavailable to enforce a contract qua contract..........What is immediately relevant is not whether the respon­dents are State or Public Authority but whether what is 'enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortuous, actions. But they cannot be siphoned off into the writ jurisdiction." 
 
49. In reply to the contention of the appel­lant that the remedy sought for is not available under the writ jurisdiction and consequent thereupon the writ petition so filed was not maintainable, the learned Counsel for respondent submitted that the contract executed between the writ-peti­tioner and the writ-respondent Government of Bangladesh was a statuto­ry contract. The learned Counsel for the respondent has sought to invoke the provi­sion of Section 17(2) (a) of Bangladesh Water and Power Development Board Order, 1972 (President's Order No. 59 of 1972) which runs as follows;
 
"(2) Without prejudice to the generality of the power conferred by clause (1), each Board may-
(a) Undertake any works, incur any expenditure within the budget or any special allotment, procure   plant, machinery and materials required for its use and enter into and perform all such contracts as it may consider nec­essary or expedient." and it is the contention of the learned Counsel for the respondent that since the contract has  been entered into by the Board with the respondent, as such, the contract so entered into being a statutory one, and as there has been violation on the part of the writ respondents to perform their duties and functions under the contract, a direction upon invoking writ juris­diction can very much be sought for and obtained directing the said respondents to perform duties and obligation under the contract.
 
50. As to the contention of the respondent made upon referring to clause (a) of sub­section 2 of Section 17 of the President's Order No. 59 of 1972, rendered herein-above, the contract in question is a statuto­ry contract, we are of the opinion that the contract which the Board may enter into as per the aforesaid provision is an enact­ing or enabling provision in the execution of its works, like the work as was under­taken upon entering into contract with the respondents. The contract that was entered into by the appellant with the respondents was not in terms of statutory provision or in exercise of any statutory power but the contract so entered into was an ordinary commercial contract or contract of gener­al nature or, in other words, a pure and simple contract. So far the relief sought for in the writ petition and granted by the High Court Division is not legally avail­able to the respondents in respect of the contract entered into between the appel­lant and the respondents. In that view of the matter the course that respondents ought to have pursued in respect of their claims of payment for the works executed by him at the rate schedule was either sub­ject of arbitration as provided in the work order or the civil Court.
 
51. The learned Counsel has further referred to a case reported in 39 DLR (AD) 85 wherein it has been held that; 
 
"even if the right to relief arose out of the alleged breach of contract, where the action challenged was a public remedy might be given by way of writ….. 
 
52. The learned Counsel has also referred to the case of Verigamto Naveen Vs Govt of AP and others reported in (2001) 8 SCC 344 wherein it has been held that; 
 
"In cases where the decision making authority exceeded its statutory power or committed breach of rules or prin­ciples of natural justice in exercise of such power or its decision is perverse or passed an irrational order this Court has interceded even after the contract was entered into between the parties and the Government and its agencies where the breach of con­tract involves breach of statutory obli­gation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of or per­tains to contract, brings if within the sphere of public law because the power exercised is apart from con­tract. The freedom of the Government to enter into business .with anybody it likes is subject to the condition of rea­sonableness and fair play as well as public interest. After entering into a contract, in canceling the contract which is subject to terms of the statu­tory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case in hand is a matter passing purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected." 
 
53. As regards the question whether the High Court Division was within its jurisdictive limit while making the direction to the appellant to pay to the respondent as per rate settled and fixed by the High Court Division on the submission of the learned Counsel for the writ-petitioner, the learned Counsel for the respondents in support of the said contention that the High Court Division was very much with­in its jurisdictive limit in making the direction, has referred in the case of the Controller and Auditor General of India -vs- KS Jagannath and another reported in AIR 1987 SC 537 wherein it has been held that ......the Courts in this Country would be prepared to go in considering the validity of orders passed by the Government or its officers...........There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power.......to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exer­cised the discretion conferred upon it by statute or a rule or a policy deci­sion of the Government or has exer­cised such discretion malafide or on irrelevant considerations or by ignor­ing the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for imple­menting which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can pass orders and give direc­tions to compel the performance in a proper and lawful manner of the dis­cretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
 
54. In the case of Managing Director, WASA -vs- Md. Ali and others reported in 59 DLR(AD) 185 it has been held that "the instant contract being not entered into as yet by the appellant and the respondent but was still at the stage of tender process to enable the petitioner of general nature, a pure and simple contract it comes to that the relief sought for in the writ petition and granted by the High Court Division is not legally acceptable to the writ-respon­dent  No.1 in  respect  of transaction between the parties.
 
55. The learned Additional Attorney General had also referred to a case report­ed in PLD 1983 Karachi 340 submitting that the controversy regarding the proof and disputed question of facts involving a contract is not amenable to the writ juris­diction of the High Court Division.
 
56. The learned Additional Attorney General has submitted that the alleged process appearing in the impugned letter dated 19.03.2003 is a mere noting of con­fidential   communication between the appellants in the process of evaluating the offer and internal noting of the file of the Government could not be subject matter of writ jurisdiction . In view of the above submission and the decisions we could not but held that the Government's noting dated 19.03.2003 as furnished in writ peti­tion, is not enforceable, because that was internal exercise of the Government is in the process of scrutinizing out and evalu­ating/ considering the bids and was not/never communicated to the respon­dents. Accordingly, no legal right can be founded on that noting. The respondents are not also supposed to obtain a copy thereof.
 
57. In the case of Mesbahuddin Ahmed -vs- Government of Bangladesh and others reported in 47 DLR 515 that "the facts are distinguishable from the present case at hand because it was found definitely by the authority that the contractors were dis­qualified to submit the certificate long after the tender could not validate the ten­der on the rational that could breed cor­ruption  it  is  neither  desirable  in the Administration nor allow in the public interest as under the law when a thing in particular way it can be done in that way and not other way or and particularly in granting  a contract the benefit of the authority need to be clean and clear"
 
58. The alleged exercise in the impugned notice was in the process of scrutiny and at best evaluation of tender received and no finality has yet been attained so as to attract the provision of clause 5.1 of the instruc­tions so as to render the bid to be rejected being contrary to clause 5.1 thereof.
 
59. Our Appellate Division of the Supreme Court in the case of Bangladesh Power Development Board and others -vs- Asaduzzaman Sikder reported in 9BLC (AD) (2000) 1 wherein it has been held that "A person can invoke writ juris­diction in breach of contract when (a) the contract is entered into by the Government in the capacity as sovereign, (b) contractu­al obligation arises out of statutory duty or sovereign obligation or public function of a public authority, (c) a statutory contract, (d) the contract was entered into by the public authority invested with a statutory power, (e) the relief sought is against breach of statutory obligation.
 
60. In the decision it was held that from the ratio of the decisions referred to above it is seen writ jurisdiction can be invoked in case of breach of contract when;
 
"(a) the contract is entered into by the Government in the capacity as sover­eign;
(b) where contractual obligation sought to be enforced in writ jurisdic­tion arises out of statutory duty or sovereign obligation or public func­tion of a public authority;
(c)  where contract is entered into in exercise of an enacting power con­ferred by a statute that by itself does not render the contract a statutory contract, but 'if entering into a con­tract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said con­tract to that extent is statutory;
(d) where a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions and the contract so entered by the statuto­ry power then merely because one of the parties to the contract is statutory or public body such contract is not a statutory contract;
(e) when contract is entered into by a public  authority invested with the statutory power, in case of breach thereof relief in writ jurisdiction may be sought as against such on the plea that the contract was entered into by the public authority invested with a statutory power;
(f) where the contract has been entered into in exercise of statutory power by a statutory authority in terms of the statutory provisions and then breach thereof gives right to the aggrieved party to invoke writ juris­diction because the relief sought is against breach of statutory obliga­tion." 
 
61. But in the instant case, the contract does not fulfill any one of the require­ments to make the same a statutory con­tract or contract entered into by the Government in the capacity as sovereign. The contract was an ordinary commercial contract or contract of general nature or a pure and simple contract. So, the relief sought for and granted by the High Court Division is not legally available to the respondent in respect of the alleged confi­dential inter-departmental communication in the process of eligibility or evaluating or considering any bid or for failure to ful­fill any obligation under a pure and simple consequential or ordinary contract entered into between the appellant and the respon­dents. The course that respondent ought to have pursued was to wait until a final decision is approved at in respect of the contract which could entitle the respon­dents either to arbitration clause or to resort to the remedy in a Civil Court. As the alleged contract does not fulfill any one of the requirements to make the same a statutory contract or contract entered into by the Government in the capacity as a sovereign, the relief claimed by way of writ jurisdiction is not entertainable.
 
62. In such circumstances the disputed question of fact cannot be decided in the writ    jurisdiction. In the case of Shamsunnahar Salam and others Vs. Mahammad Wahidur Rahman and others reported in 51 DLR (AD) 232 wherein it has been held that "A writ Court cannot and should not decide any disputed ques­tion of fact, which requires evidence to be taken for settlement." Similar view has been taken in the case of Nuruddin (Md) Vs. Titas Gas Transmission and Distribution Company Ltd. and others reported in 3 BLC (AD) 23 1.
 
63.  In support of the cancellation of the contract in the facts and circumstances of the case, the learned Advocates for the appellants submitted that in taking any decision, particularly in respect of the decision for cancellation of a contract relating to a development work the deci­sion must be dictated by public interest and should not be unreasoned or unprinci­pled and that the cancellation as made was not arbitrary but based on valid ground and on national interest and can not be said to be irrational, unreasonable, dis­criminatory or malafide. Further in the meantime the contracted work, after can­cellation, has been completed through new contractors. The dispute as to the facts and circumstances of the case in the cancellation of the contracts raised by the con­cerned parties cannot be resolved without taking evidence. The subject matter of the Rules and the directions given by the High Court Division in making the Rules absolute have became infructuous, since cannot be complied with at this stage.
 
64. The learned Counsel appearing for the writ-petitioner respondent further submit­ted that because of delay in disposing of the cases under reference, the appellants are taking advantage of such delay but the fact remains that the writ-petitioner has sought to establish before the writ Bench the fact of alleged illegality committed by the writ-respondents in cancelling the con­tracts and awarding the same to new con­tractors who accomplished the work and thereby the writ petitioner has been put to suffer loss and injury, both in money and in person. The learned Counsels appearing for the appellants submitted that there are allegations as to physical torture on the writ petitioner at the instance of Naser Rahman, the then M.P., who is son of the then Finance Minister M. Saifur Rahman and claimed compensation but it appears that said Naser Rahman has not been made a party in the writ petitions and there is no details about the compensation claim in the form of quantum or any proof therefore. The learned Advocate appearing for the writ petitioner referring to the various paper clippings, annexed to the writ peti­tion, submitted that the torture and brutal­ities committed in the person of the writ petitioner have been disclosed in detail, which are within the knowledge of all concern and there could be no difficulty in proving the same.
 
65. Considering the facts and circum­stances of the case and the legality of the claim of the writ-petitioner in this jurisdic­tion cannot be gone into which are basi­cally allegation of facts and are not amenable in writ jurisdiction.
 
66. For the reasons aforesaid and the prin­ciples of law involved, we are constrained to hold that in the facts and circumstances of the case the writ petition must be held not to be maintainable and accordingly, the impugned judgment and order passed by the High Court Division is set aside and appeals are allowed without any order as to costs.
 
67. For the reason detailed in the petition we reject the petition under Article 104 of the Constitution.
 
68. In the facts and circumstances, we hold that the petition claiming damages and compensations for physical and men­tal torture of the respondent being disput­ed questions of fact are beyond the scope of writ jurisdiction.
 
69. Accordingly, the Contempt Petition No.1 of 2005 is rejected.
 
70. Before parting with, we should not be unmindful about the strenuous argument made by Mr. Amirul Islam, Mr. Mahbubar Rahman with Ms. Tania Amir, learned Counsels, appearing for the respondent to impress us to consider the agonies and the miseries of the writ-petitioner pointing out at the helpless and miserable physical con­dition of the respondent who was present in the Court on a wheel chair althorough at the time of hearing of the appeals submit­ting, inter-alia, that the earnest money and the security money deposited with the authority should in any event be ordered to be released on humanitarian ground considering his helpless position to pro­vide adequate fund for his treatment urgently. We have considered the submis­sions of the learned Counsel passionately and sympathetically on a humanitarian ground and accordingly, we are inclined to direct the appellant to refund the earnest money of TK. 23,00,000.00 within 45 days with interest at the rate of 12% per annum in Civil Appeal No. 244 of 2005 and also direct that the appellants to refund the earnest money and security money deposited, if any, with interest at the rate of 12% from the date of cancellation of contracts till realization in C. A. No. 247-250 of 2005 and to pay the unpaid bills, if any, of the writ petitioner for the work already done in accordance law, in full and final settlement of the claims of the writ-petitioner under the contracts.
 
Ed.