(From previous issue)
12. Mr Shams-ud-Doha Talukder, the learned Assistant Attorney-General appearing on behalf of the respondent No.1 submits that it is fact that in the 3rd auction the petitioner became the highest bidder offering Taka 45,52,000 but his bid was not approved by the auction committee, as is evident from Annexure-H to the writ petition. In this regard, referring to clause 15(Ka) of the Ò¯’vqx Av‡`k bs-08 ZvwiLt 1-4-2001Ó he goes to submit that vide the same the Commissioner or any officer authorized in this behalf has absolute discretion to decide not to sell the goods or suspend the process of sell or sell partly Òweµq Aby‡gv`b t (K) cY¨ weµ‡qi Rb¨ RvZxq ivR¯^ †ev‡W©i wb‡`©kbv Abyhvqx Gwm/wWwm/(wbjvg cY¨ weµ‡qi mycvwik Kwi‡eb Ges Kwgkbvi A_ev wbjv‡gi `vwqZ¡ cÖvß hyM¥ Kwgkbvi A_ev Kwgkbvi KZ…©K g‡bvbxZ KwgwU Dnv Aby‡gv`b Kwi‡eb| †h †Kvb cY¨ weµq bv Kiv weµq ¯’wMZ Kiv AvswkK weµq Kivi ÿgZv Kwgkbvi A_ev ÿgZv cÖvß Kg©KZ©v msiÿY K‡ib|Ó
Accordingly, he submits that since bid of the petitioned was not approved by the Committee concern as such, seeking direction for releasing the goods in his favour does not arise at all. He also submits that meanwhile, in compliance of the direction so given by this Hon’ble Court vide order dated 16-10-2017 in writ petition No.14351 of 2017 representation of the petitioner dated 22-5-2017 was disposed of on 31-10-2017 and it was duly communicated to the petitioner (Annexure-1 to the affidavit in opposition). Moreover, he submits, prior to filing the instant writ petition the highest bid in the 4th auction dated 18-10-2017 was approved by the auction committee on 8-11-2017(Annexure-2 to the affidavit in opposition). Suppressing those facts the petitioner has filed the instant writ petition and obtained the present Rule on 23-9-2018 along with an order of stay with direction in order to frustrate the 4th auction process on the face of the established principle of law that no legal or vested right accrues to the petitioner for being the highest bidder at the auction. Accordingly, he submits that this Rule is liable to be discharged with costs.
13. Admittedly, 1st auction notice was published on 4-5-2014 (Annexure-A) for auction sale of the imported goods under Tender Sale No.3/2014, Lot No.OBPC-2/598/ 13 fixing 12-5-2014 as the date of auction contending, inter alia, in particular clauses 12, 21 and 25 of the tender schedule:
Ò12| RvZxq ivR¯^ †ev‡W©i cÎ bw_ bs-4 (25) ïé wbt I e‡Kqv /93/131 ZvwiLt 27-4-2005 wLªt Gi
(M) AcPbkxj c‡Y¨i †ÿ‡Î cÖ_g wbjv‡gi ev `ic‡Îi m‡e©v”P g~j¨ msiwÿZ g~‡j¨i Ab~¨b 60 kZvsk n‡j H g~‡j¨ Zv wb®úwË Kiv hv‡e| Ab¨_vq wØZxqevi wbjvg ev `ic‡Î †Zvjv hv‡e ;
(N) msiwÿZ g~j¨ hvB †nvK bv †Kb, wØZxq wbjv‡g ev `ic‡Îi m‡e©v”P g~j¨ cÖ_g wbjv‡gi m‡e©v”P g~j¨ A‡cÿv †ekx n‡j H g~‡j¨ Zv wb®úwË Ki‡Z n‡e| Ab¨_vq Z…Zxqevi wbjvg ev `ic‡Î †Zvjv n‡e ; Ges
(O) msiwÿZ g~j¨ hvB †nvK bv †Kb, Z…Zxqevi AbywôZ wbjv‡gi ev `ic‡Îi m‡e©v”P g~‡j¨ cY¨ wb®úwË Kiv hv‡e|
……..
21| Kwgkbvi Ae Kv÷gm †Kvb j‡Ui wecix‡Z cÖ`Ë m‡e©v”P †Kv‡Ukb MÖn‡Y eva¨ b‡nb Ges †Kvbiƒc KviY cÖ`k©b e¨wZ‡i‡KB †h †Kvb †UÛvi/‡Kv‡Ukb MÖnY ev evwZj Kwievi ÿgZv msiÿY K‡ib|
…………
25| Dc‡iv³ kZ©vejx Qvov wbjvg msµvšÍ Kv÷gm nvD‡mi ¯’vqx Av‡`k bs-8 ZvwiLt 17-4-2001 Gi mswkøó weavbvejx I GZ`msµvšÍ Ab¨vb¨ Av‡`k mxj †UÛv‡ii gva¨‡g cY¨ weµ‡qi †ÿ‡Î cÖ‡hvR¨ nB‡e| ………….Ó
14. The highest bid of Taka 18,25,000 so offered in the 1st auction being less than 60% of the reserved value the auction committee decided to go for 2nd auction. Accordingly, 2nd auction notice was published on 17-7-2014 under Tender Sale No.5/14, Lot No.OBPC-2/903/10. The highest bid was Taka 76,68,000 The auction committee, however, did not approve the said bid. Consequently, it was cancelled with decision to go for 3rd auction. 3rd auction notice was published by the authority concern on 15-12-2015 under Tender Sale No.10/15, Lot No.OBPC-2/598/13 fixing 23-12-2015 as the date of auction. The petitioner on depositing 10% earnest money participated in the bid along with others, his offer of Taka 45,52,000 became highest; but being much less than 60% of the reserved value the auction committee did not approve his offer vide order dated 5-10-2017 (Annexure-H) and accordingly, took decision to go for 4th auction. 4th auction notice was duly published in the respective newspaper on 18-10-2017 under Tender Sale No.08/2017, Lot No.OBPC-2/598/13 fixing 19-10-2017 as the date of auction. The offer of the highest bidder was Taka 63,90,000 and it was ultimately approved by the auction committee on 8-11-2017(Annexure-2 to the affidavit in opposition).
15. When process was being undertaken towards release of the goods in favour of the highest bidder of the 4th auction at this juncture, the petitioner filed the instant writ petition on 10-9-2018, 10 (ten) months after the approval so given by the auction committee to the highest bid of the 4th auction mainly on the contention that on depositing 10% earnest money he participated in the 3rd auction and his offer of Taka 45,52,000 became the highest; hence, he has legitimate expectation to have the goods release in his favour; to that effect earlier he filed writ petition No.14351 of 2017 before this Court seeking disposal of his representation dated 22-4-2017, which was allowed on 16-10-2015 with direction upon the respondent concern to dispose of his said application within 15 (fifteen) days of receipt thereof in accordance with law. However, without complying the aforesaid order the authority went for 4th auction, which is illegal. Upon hearing the petitioner this Court vide order dated 23-9-2018 issued Rule Nisi along with an order of stay with direction to release the goods in his favour if he was found to be the highest bidder. The Appellate Division ultimately stayed the said order of stay as well as direction in CPLA No.4609 of 2018 vide order dated 13-1-2019.
16. It is the established principle of law that no legal or vested right is accrued being the highest bidder at the tender. In the interest of public revenue the authority can hold any number of auction if it is satisfied that the property went for auction did not set a proper value in the tender or that there is possibility of getting higher value in case of fresh tender, as has been observed by the Appellate Division in the case of Md Jashimuddin vs Bangladesh reported in 17 BLD (AD) 227.
17. In the instant case, the petitioner is admittedly a highest bidder at 3rd auction, but his bid was cancelled by the auction committee on 5-10-2017(Annexure-H to the writ petition), for his offer was much lower than 60% of the reserved value and with a view to get higher value, the committee took decision to go for 4th auction, which the committee is duly empowered to vide Sthai Adesh No.8 dated 17-4-2001. Said authority of the auction committee is also reflected in the respective tender schedule. Despite the same, the petitioner has filed the instant writ petition only to frustrate the process of 4th auction and he has succeeded in keeping the auction process in abeyance since 8-11-2017 till date.
18. Be that as it may, we have no manner of doubt to find that though the petitioner was the highest bidder in the 3rd auction, but his bid was subsequently cancelled by the auction committee on 5-10-2017 (Annexure-H to the writ petitioner). As such, he has no legal or vested right or even legitimate expectation to seek for a direction to have the goods released in his favour.
19. However, in the interest of public revenue the auction committee can hold any number of auction on being satisfied that the offer so far received in connection with the auction has not reached it’s reserved value and/ or there is opportunity of getting higher value if opted for fresh tender.
20. This writ petition further fails for suppression of facts, for the categorical contention of the petitioner is that without complying with the direction of this Court so given in writ petition No.14351 of 2017 as to disposal of his representation the auction committee opted for 4th auction, whereas from Annexure-1 to the affidavit in opposition it is evident that in compliance of the order dated 16-10-2017 passed by this Court in writ petition No. 14351of 2017 the respondent concern duly disposed of his representation on 31-10-2017 with copy to the petitioner. In view of the stated facts and circumstances it is apparent that he filed the instant writ petition in order to frustrate the process of 4th auction. Last but not the least; the petitioner has sought equitable relief under Article 102 of the Constitution with unclean hand. On that score as well he is not entitled to seek relief, as prayed for.
21. Before we part it is also pertinent to observe the conduct of the learned Advocate Ms. Anjuman Ara who moved the instant application on behalf of the petitioner, the 3rd bidder of the auction in question and obtained a Rule Nisi along with an interim order of stay and direction. Subsequently she also moved writ petition No.14916 of 2018 as motion hearing on behalf of the bidder of the 4th auction with a prayer to have the goods released in his favour in connection with Tender Sale No.8/17 dated 19-10-2017. While said motion was being moved it was brought to the notice of this Court on the part of the respondent government as to pendency of the instant Rule which was obtained by the same learned Advocate on behalf of the bidder of the 3rd auction. At that juncture, the learned Advocate seeking unconditional apology made a prayer for rejection of the said motion as being not pressed with commitment not to repeat such conduct/act in future. Considering her future career and profession in this arena this Court accepted her prayer and without making any adverse observation/remarks rejected the said application as being not pressed vide order dated 28-11-2018.
22. This Rule Nisi was fixed by this Bench on 11-12-2018 for hearing and disposal; later, it was made part heard. However, on next consecutive dates, so fixed for further hearing, neither the conducting lawyer Ms. Anjuman Ara nor the filing lawyer of the petitioner Mr Mohammad Mozibur Rahman was found present despite being informed by Mr Shamsud-doha Talukder, the learned Assistant Attorney-General to remain present in Court. Even today, the date so fixed for delivery of judgment both the learned Counsels remained absent. Such conduct of the learned Counsels of the petitioner tantamount to professional misconduct, which is unfortunate and hence, deprecated.
23. However, considering their future career this Court instead of issuing Rule for contempt of Court gives caution upon both the learned Advocates not to repeat such unprofessional conduct while discharging their professional duties and obligations.
24. In view of the facts and circumstances, observations and findings we find no substance in the Rule; accordingly it is liable to be discharged.
25. In the result, this Rule is discharged with cost of Taka 1,00,000 (Taka one lac) only to be paid by the petitioner to the respondent government though treasury challan within 60 (sixty) days from the date of receipt of the copy of this judgment and order.
26. The order of stay as well as direction no given at the time of issuance of the Rule are hereby vacated.
27. The concern authority is hereby directed to proceed with the process of 4th auction, in accordance with law.
Communicate the judgment and order to the respondents concern at once.
(Concluded)