Appellate Division
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Muhammad Imman Ali J
Judgment
February 14th, 2013.
Rana Kaiser Siddiq ….
……….Petitioner
vs
Bangladesh Chemical Industries Corporation and others. ………. Respondents*
Constitution of Bangladesh, 1972
Article 102(2)
Writ petitioner submitted tender knowing full well that the authority reserved the right to accept the offer or part thereof or reject the tender and that the decision of the authority was final and that even if the writ petitioner has any right he could seek remedy before the civil Court, not in the writ petition. . ….. (12)
Mozher Sowdagar vs M Zahirul Alam, General Manager, Bangladesh Shipping Corporation, 40 DLR (AD) 62 & Messrs Momin Motor Company vs The Regional Transport Authority, Dacca, (1962) PLD (SC) 108 = 14 DLR (SC) 102.
Rafique-ul-Huq, Senior Advocate, instructed by Md Wahidullah, Advocate-on-Record-For the Petitioner.
MA Samad, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Respondents.
Judgment
Syed Mahmud Hossain J: By this petition, Rana Kaiser Siddiq, seeks leave to appeal against the judgment and order dated 18-8-2009 passed by the High Court Division in Writ Petition No.4806 of 2004 discharging the Rule.
2. Averments figured in the Civil Petition for Leave to Appeal are summarized below:
The leave-petitioner as the writ-petitioner filed a writ petition before the High Court Division.
The writ-petitioner as a director and shareholder of Bangladesh Commercial Bank Limited was looking for an opportunity to purchase more shares to strengthen his position in the Board of Directors of the said bank. Since this is a listed company, he was not in a position to purchase further shares, which he was looking for quite a long time. The writ-petitioner came to know of the public notice published in the daily newspapers, namely, “Daily Dinkhal” and “The News Today” on 15-2-2004 issued by respondent No.2 under the authority of respondent No.1 inviting tender from interested bidders for purchasing of 2,40,000 shares of Group-C of the said bank held by Jamuna Fertilizer Company Limited and Zia Fertilizer Company Limited and both the companies are fully owned by respondent.No.1. Pursuant to the said tender, the writ-petitioner submitted his bid quoting a price of Taka 145.51 for each share, and the total price of 2,40,000 shares comes to a total Taka 3,49,22,400. The writ-petitioner submitted a pay order of Taka 8,00,000 as earnest money in favour of respondent No.1 and paid a non-refundable fee of Taka 5000 as costs of schedule of the tender. Accordingly, on 15-3-2004 the tender was· opened in presence of participating bidders including the writ petitioner.
After that, the Evaluation Committee found the writ-petitioner the highest bidder and the committee verbally informed him that he would be awarded the tender to purchase those shares of respondent No.1. According to Clause 2.2 of the tender schedule, the decision of the authority is to be taken within 30 days from the date of opening of the tender. But no decision was communicated to the writ-petitioner within the stipulated period according to the terms and conditions of the tender schedule, which expired on 15-4-2004. What. is important to note here is that the authority was under obligation to refund the earnest money of all the bidders except the 1st, 2nd and 3rd highest bidders within 10 days of opening of the bids. The earnest money of the 1st, 2nd and 3rd highest bidders were to be retained until a decision was taken. So, there were legal obligations under Clause 2.2 of the tender schedule that after expiry of 30 days. a decision has to be given as to the identity of the successful bidder and there was no scope for cancellation of the tender process. In other words, Clause 2.2 pre-supposes that upon expiry of 30 days, the tender could not be cancelled but should be awarded in accordance with law. In failing to take any decision within the stipulated period as provided under clause 2.2 of the tender schedule, respondent. Nos. 1 and 2, in fact, accepted the bid of the writ-petitioner. After that, the writ petitioner received Memo No. wewmAvBwm/‡Kv¤úvbx/2.29/2004/41 dated 11-7-2004 informing him and others to take back the earnest money. On receipt of the said letter, writ petitioner wrote a letter to the Chairman of Bangladesh Chemical Industries Corporation on 24-7-2004 to reconsider the matter but to no avail.
3. Finding no other alternative, the writ petitioner served a notice demanding justice upon the writ respondents on 10-8-2004. But no reply was received. Therefore, the writ-petitioner filed Writ Petition No.4806 of 2004 before the High Court Division under its writ jurisdiction and obtained Rule Nisi.
4. Writ-respondent Nos. 1 and 2 entered appearance by filing affidavit-in-opposition controverting the material statements made in the writ petitions.
5. The High Court Division upon hearing the parties by its judgment and order dated 18-8-2009 discharged the Rule.
6. Feeling aggrieved by the impugned judgment and order passed by the High Court Division, the leave petitioner has filed this instant Civil Petition for Leave to Appeal.
7. Mr Rafique-ul-Huq, learned Senior Advocate, appearing on behalf of the leave petitioner, submits that the High Court Division failed to consider that the writ-petitioner acquired a’ vested right to get the award as he has become the highest bidder and complied with the terms and conditions of the tender schedule particularly when the proposed sale is not an ordinary commercial transaction. He further submits that while discharging the Rule the High Court Division failed to give a harmonious interpretation of different clauses of the tender schedule and considered some clauses in isolation and ultimately came to a finding that the writ-petitioner did not have any reasonable expectation to get the tender.
8. MA Samad, learned Senior Advocate, appearing on behalf of the respondents, on the other hand, supports the impugned judgment and order.
9. We have considered the submissions of the learned Senior Advocates of both the sides, perused the impugned judgment and materials on record.
10. Having considered clause 2.2, the High Court Division came to a finding that the concerned authority was to take decision within 30 days from the date of opening of the tender and that in the instant case, the decision was not taken within 30 days from the date of the opening of the tender and that clause 2.2 of the tender schedule was merely directory and not mandatory and that on the basis of the said clause the writ petitioner has not acquired any inchoate right. Taking into consideration the case of Mozher Sowdagar vs M Zahirul Alam, General Manager, Bangladesh Shipping Corporation, 40 DLR (AD) 62, the High Court Division held that when the tender was accepted in violation of a condition mentioned in the tender form, then an argument could be advanced for seeking protection of inchoate right of the tenderer and that no such violation could be shown.
11. Relying upon the case of Messrs Momin Motor Company vs The Regional Transport Authority, Dacca, (1962) PLD (SC) 108 = 14 DLR (SC) 102 the High Court Division found that a contractual right is not enforceable in exercise of writ jurisdiction.
12. The High Court Division concluded that the writ petitioner submitted tender knowing full well that the authority reserved the right to accept the offer or part there of or reject the tender and that the Decision of the authority was final and that even if the writ petitioner has any right he could seek remedy before the Civil Court, not in the instant writ petition.
13. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and facts do not call for interference.
Accordingly, this civil petition for leave to appeal is dismissed.
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Muhammad Imman Ali J
Judgment
February 14th, 2013.
Rana Kaiser Siddiq ….
……….Petitioner
vs
Bangladesh Chemical Industries Corporation and others. ………. Respondents*
Constitution of Bangladesh, 1972
Article 102(2)
Writ petitioner submitted tender knowing full well that the authority reserved the right to accept the offer or part thereof or reject the tender and that the decision of the authority was final and that even if the writ petitioner has any right he could seek remedy before the civil Court, not in the writ petition. . ….. (12)
Mozher Sowdagar vs M Zahirul Alam, General Manager, Bangladesh Shipping Corporation, 40 DLR (AD) 62 & Messrs Momin Motor Company vs The Regional Transport Authority, Dacca, (1962) PLD (SC) 108 = 14 DLR (SC) 102.
Rafique-ul-Huq, Senior Advocate, instructed by Md Wahidullah, Advocate-on-Record-For the Petitioner.
MA Samad, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Respondents.
Judgment
Syed Mahmud Hossain J: By this petition, Rana Kaiser Siddiq, seeks leave to appeal against the judgment and order dated 18-8-2009 passed by the High Court Division in Writ Petition No.4806 of 2004 discharging the Rule.
2. Averments figured in the Civil Petition for Leave to Appeal are summarized below:
The leave-petitioner as the writ-petitioner filed a writ petition before the High Court Division.
The writ-petitioner as a director and shareholder of Bangladesh Commercial Bank Limited was looking for an opportunity to purchase more shares to strengthen his position in the Board of Directors of the said bank. Since this is a listed company, he was not in a position to purchase further shares, which he was looking for quite a long time. The writ-petitioner came to know of the public notice published in the daily newspapers, namely, “Daily Dinkhal” and “The News Today” on 15-2-2004 issued by respondent No.2 under the authority of respondent No.1 inviting tender from interested bidders for purchasing of 2,40,000 shares of Group-C of the said bank held by Jamuna Fertilizer Company Limited and Zia Fertilizer Company Limited and both the companies are fully owned by respondent.No.1. Pursuant to the said tender, the writ-petitioner submitted his bid quoting a price of Taka 145.51 for each share, and the total price of 2,40,000 shares comes to a total Taka 3,49,22,400. The writ-petitioner submitted a pay order of Taka 8,00,000 as earnest money in favour of respondent No.1 and paid a non-refundable fee of Taka 5000 as costs of schedule of the tender. Accordingly, on 15-3-2004 the tender was· opened in presence of participating bidders including the writ petitioner.
After that, the Evaluation Committee found the writ-petitioner the highest bidder and the committee verbally informed him that he would be awarded the tender to purchase those shares of respondent No.1. According to Clause 2.2 of the tender schedule, the decision of the authority is to be taken within 30 days from the date of opening of the tender. But no decision was communicated to the writ-petitioner within the stipulated period according to the terms and conditions of the tender schedule, which expired on 15-4-2004. What. is important to note here is that the authority was under obligation to refund the earnest money of all the bidders except the 1st, 2nd and 3rd highest bidders within 10 days of opening of the bids. The earnest money of the 1st, 2nd and 3rd highest bidders were to be retained until a decision was taken. So, there were legal obligations under Clause 2.2 of the tender schedule that after expiry of 30 days. a decision has to be given as to the identity of the successful bidder and there was no scope for cancellation of the tender process. In other words, Clause 2.2 pre-supposes that upon expiry of 30 days, the tender could not be cancelled but should be awarded in accordance with law. In failing to take any decision within the stipulated period as provided under clause 2.2 of the tender schedule, respondent. Nos. 1 and 2, in fact, accepted the bid of the writ-petitioner. After that, the writ petitioner received Memo No. wewmAvBwm/‡Kv¤úvbx/2.29/2004/41 dated 11-7-2004 informing him and others to take back the earnest money. On receipt of the said letter, writ petitioner wrote a letter to the Chairman of Bangladesh Chemical Industries Corporation on 24-7-2004 to reconsider the matter but to no avail.
3. Finding no other alternative, the writ petitioner served a notice demanding justice upon the writ respondents on 10-8-2004. But no reply was received. Therefore, the writ-petitioner filed Writ Petition No.4806 of 2004 before the High Court Division under its writ jurisdiction and obtained Rule Nisi.
4. Writ-respondent Nos. 1 and 2 entered appearance by filing affidavit-in-opposition controverting the material statements made in the writ petitions.
5. The High Court Division upon hearing the parties by its judgment and order dated 18-8-2009 discharged the Rule.
6. Feeling aggrieved by the impugned judgment and order passed by the High Court Division, the leave petitioner has filed this instant Civil Petition for Leave to Appeal.
7. Mr Rafique-ul-Huq, learned Senior Advocate, appearing on behalf of the leave petitioner, submits that the High Court Division failed to consider that the writ-petitioner acquired a’ vested right to get the award as he has become the highest bidder and complied with the terms and conditions of the tender schedule particularly when the proposed sale is not an ordinary commercial transaction. He further submits that while discharging the Rule the High Court Division failed to give a harmonious interpretation of different clauses of the tender schedule and considered some clauses in isolation and ultimately came to a finding that the writ-petitioner did not have any reasonable expectation to get the tender.
8. MA Samad, learned Senior Advocate, appearing on behalf of the respondents, on the other hand, supports the impugned judgment and order.
9. We have considered the submissions of the learned Senior Advocates of both the sides, perused the impugned judgment and materials on record.
10. Having considered clause 2.2, the High Court Division came to a finding that the concerned authority was to take decision within 30 days from the date of opening of the tender and that in the instant case, the decision was not taken within 30 days from the date of the opening of the tender and that clause 2.2 of the tender schedule was merely directory and not mandatory and that on the basis of the said clause the writ petitioner has not acquired any inchoate right. Taking into consideration the case of Mozher Sowdagar vs M Zahirul Alam, General Manager, Bangladesh Shipping Corporation, 40 DLR (AD) 62, the High Court Division held that when the tender was accepted in violation of a condition mentioned in the tender form, then an argument could be advanced for seeking protection of inchoate right of the tenderer and that no such violation could be shown.
11. Relying upon the case of Messrs Momin Motor Company vs The Regional Transport Authority, Dacca, (1962) PLD (SC) 108 = 14 DLR (SC) 102 the High Court Division found that a contractual right is not enforceable in exercise of writ jurisdiction.
12. The High Court Division concluded that the writ petitioner submitted tender knowing full well that the authority reserved the right to accept the offer or part there of or reject the tender and that the Decision of the authority was final and that even if the writ petitioner has any right he could seek remedy before the Civil Court, not in the instant writ petition.
13. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and facts do not call for interference.
Accordingly, this civil petition for leave to appeal is dismissed.