HUTCHISON TELECOM BANGLADESH LTD. Vs. BANGLADESH TELEGRAPH AND TELEPHONE BOARD
SUPREME COURT OF BANGLADESH
Hutchison Telecom Bangladesh Ltd.
Bangladesh Telegraph And Telephone Board
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MUSTAFA KAMAL,J. -
(1.) The petitioner-company obtained a Rule Nisi in Writ Petition No. 1321 of 1994 calling upon the respondents to show cause why the notice contained in a Memo dated 25.7.94 issued by respondent No. 3 and published in the Financial Express dated 27.7.94 in so far as it relates to invitation of tender for establishment of Cellular Mobile Telephone Service in major cities and areas of Bangladesh should not be declared to be without lawful authority and of no legal effect and why the respondents should not be directed to cancel, rescind and /or withdraw the same. The Rule Nisi was discharged by a Division Bench of the High Court Division by judgment and order dated 8.5.95 from which the petitioner now seeks leave to appeal.
(2.) The short facts of the case are, that respondent No. 1, Bangladesh Telegraph and Telephone Board, shortly BTTB, entered into an agreement on 26.7.89 with a private limited company named Bangladesh Telecom (Pvt) Ltd, shortly BTL, permitting BTL to operate several telecommunication systems including Cellular Mobile Telephone Service in the private sector. Eight months thereafter, i.e. on 25.3.90 BTTB issued, being empowered by the Government to do so under the Bangladesh Telegraph and Telephone Board Ordinance, 1979, a licence under section 4(1) of the Telegraph Act, 1885 providing in clause (2) that the licence was to remain valid and operative for 20 years from the date of signing of the agreement, i.e. from 26.7.89 and also providing in clause (3) that BTL would have exclusive right of operation of the aforesaid communication systems for a period of 5 years from the same date. BTL implemented three communication systems with its own finance, but it had to seek foreign parties for installation and operation of Cellular Radio Telephone Service as it required huge investment in foreign exchange and local currency beyond its capacity. A Memorandum of Understanding was signed between BTL and Hutchison Telecommunication Ltd, a foreign company, to form a joint venture with BTL for the purpose. BTL approached the Board of Investment of Bangladesh in 1989 for approval of the joint venture company. The Board of Investment by Memo dated 11.8.90 approved the joint venture company with 50% foreign ownership in the project. Accordingly the petitioner-company, namely, Hutchison Bangladesh Telecom Ltd. shortly HBTL, was incorporated on 8.10.90 under the Companies Act, 1913 with BTL and Hutchison Telecommunication (Bangladesh) Ltd, a subsidiary of Hutchison Telecommunication Ltd. holding 50% shares each. The petitioner company through BTL imported necessary equipment and made necessary constructions for making the cellular radio telephone system operative by January, 1991. It was necessary to connect the exchange established by the petitioner with the exchange of BTTB through a Public Switch Telecommunication Networks (PSTN) connection. BTL applied for PSTN connection and BTTB issued a demand note on 5.5.9 1 for payment of nearly Taka 41 lakh toward charges of PSTN connection. The petitioner made arrangement for payment of the amount which was paid to BTTB through BTL on 25.5.91 But BTTB did not give the necessary connection and thereby prevented the system from being commercially operational. The petitioner met the officers of BTTB and had the impression that for reasons best known to them BTTB would not permit BTL to operate the cellular radio telephone system. At this stage the representative of the foreign share-holders of the petitioner met the Minister- in-Charge and offered to come to any arrangement with the Government and BTTB. BTL was asked by BTTB by a notice dated 12.1.92 to show cause why the agreement dated 26.7.89 would not be amended and cellular radio telephone system should not be excluded from the agreement, as in violation of clause 17 of the agreement BTL without taking prior permission from BTTB was installing the cellular radio telephone system in collaboration with a foreign company. BTL showed cause vide letter dated 19.1.92 stating that the system was not fully operational and that the stage had not arrived for obtaining permission of BTTB for transfer of licence in favour of the petitioner. Eventually BTTB issued Memo dated 31.3.92 under section 8 of the Telegraph Act cancelling the agreement dated 26.7.89 for violating the terms of clauses 3, 6, 7, 9, 17 and 23 of the agreement. BTL filed Writ Petition No. 1286 of 1992 challenging the validity of the Memo dated 31.3.92. The High Court Division by judgment and order dated 18.8.92 declared that the cancellation of the agreement so far as it related to the systems other than the cellular radio telephone system was not in accordance with law and made the Rule absolute in this regard, but discharged the Rule insofar as the cellular radio telephone system is concerned. BTL took an appeal to this Division and by judgment and order dated 19.4.93 passed in Civil Appeal No. 73 of 1992 the decision of the High Court Division was reversed so far as it related to cellular radio telephone system. The appeal of BTL was allowed subject to the conditions that BTL shall apply for written permission of BTTB for transfer of the licence in respect of cellular radio telephone system in favour of the petitioner company within two months from date and operation of the said system by the petitioner- company within one month thereafter, failing which BTTB shall be free to take such steps with regard to the licence as it will be advised.
(3.) Accordingly, BTL applied for on 16.6.93 and obtained on 11.7.93 from BTTB permission to transfer the licence in respect of Cellular Radio Telephone in favour of the petitioner-company and transferred the licence on 12.7.93 to the petitioner-company. BTTB gave PSTN connection on 3.8.93 and the cellular radio telephone system became operational on and from 8.8.93. It is the case of the petitioner-company that by publishing the impugned notice dated 27.7.94 in the Financial Express BTTB acted contrary to the terms of the licence. The licence, according to the petitioner, became effective on 3.8.93 as BTTB willfully, deliberately and illegally withheld the PSTN connection until it was compelled to give the connection on 3.8.93 under the order and direction of the Appellate Division. The period from 25.5.91 to 3.8.93 ought to be excluded from the computation of the period of 5 years during which the petitioner-company would enjoy the exclusive right of operating the said system in Bangladesh as the petitioner was deprived of the time lost owing to the wrong committed by BTTB in canceling the licence. The invitation of tender on 27.7.94 was in the circumstances illegal and unlawful.;
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