MD. NAZRUL ISLAM Vs. MONZURUL ISLAM LITON
LAWS(BANG)-2009-4-16
SUPREME COURT OF BANGLADESH
Decided on April 17,2009

MD. NAZRUL ISLAM Appellant
VERSUS
Monzurul Islam Liton Respondents

JUDGEMENT

MD.ABDUL AZIZ J. - (1.) This appeal, by leave, arises out of the judgment and order dated 30.07.2003 passed by a Division Bench of the High Court Division in Writ Petition No.1613 of 2003 making the rule absolute declaring the impugned order dated 10.11.2002 to have been passed without lawful authority and directing the writ-respondents to give the work order and licence to the writ-petitioner within 2 weeks from the date of receipt thereof in respect of train being Nos. 461 and 462 and 455/456.
(2.) The respondent No.1 as the writ-petitioner filed the writ petition challenging the said impugned order dated 10.11.2002 and for direction upon the writ-respondents to give final approval of his work order as mentioned in the letters dated 1.9.2002 and 12.9.2002 in order to give license to collect fare from the passengers and charges for the luggage and parcel etc. of train No.461/462 and 445/446 stating, inter alia, that the writ petitioner is the proprietor of Islam Ship Builders and Heavy Engineering. The Government of Bangladesh privatized all the trains of the country except the Inter-City trains to overcome excessive loss which were subsidized by the Government. The Government encouraged private sectors to come forward to rescue the losing concern. Pursuant to that policy the writ petitioner took lease of 10 trains such as namely, 21/21 Padma Rag Express, 481/482 local train. Both of them are currently running in the route of Lalmonirhat-Santahar-Lalmonirhat and also 15/16 Mahananda Express, 25/26 Nakshikanta Express and 491/492 local train currently running in the route of Chapainababgonj-Khulna-Chapainababgonj, Khulna-Goalanda -Khulna and Bonarpara-Shantahar-Bonarpara respectively. On 13.4.2002 Bangladesh Railway invited tender vide Notice No.COM/RCS/L/461/Pa: from the private sectors to lease out the commercial activities i.e., to collect fares-from the passengers and charges for the language and parcels etc. of train No.455/456 local train running in the route of Lalmonirhat-Burimary-Lalmonirhat and 461-462 local train running in the route of Lalmonirhat-Parbotipur-Lalmonirhat. The writ-petitioner collected the tender schedule for the same and dropped the tender on 18.5.2002. Although the writ petitioner became-the highest bidder amongst the two bidders, he on 11.8.2002 received a letter from the concerned authority asking him to increase the bid money of train No.411/412 and 453/454. The writ petitioner on 14:08.2002 in reply to that letter addressed to writ-respondent No.4 stated his inability to increase the bid money on the ground that the train No.411/412 and 453/454 run during the rush hours of the day, on the other hand, train No.461/462 and 455/456 would run only during off-peak hours for which it would be less profitable than that of the other trains. Writ-respondent No.4 wrote a letter bearing Memo No.COM/RCS/L/7-8/CRD-2/Pa: /P-2 to the writ respondent No. 2 confirming that the writ petitioner became the highest amongst the two bidders. In the said letter it was also stated that the writ-petitioner would pay 13.83% higher than the previous licence-holder and 77.78% higher than the average earning of the Bangladesh Railway. By the letter dated 14.08.2002 it was intimated that the Standing Committee in which the writ-respondent No.4 was also a member approved the tender and the approval of the Standing Committee was also approved by the writ-respondent No.3. On 12.9.2002 Assistant Director/PM-1, Bangladesh Railway wrote a letter bearing Memo No. RAIL/Pha: Ma: /LICENCE/ POSHIM/ ZATRI TRAIN/3/99-245 to the writ-respondent No.3 intimating that after consultation with Ministry of Communication writ-respondent No. 2 gave approval of the tenders including the tender submitted by the writ-petitioner and requested writ-respondent No.3 to take all necessary steps to grant licence. Although the writ-petitioner's tender was approved twice the writ-petitioner was not given the licence or work permits to run the said trains. The writ-petitioner was expecting a positive result but abruptly on 10.10.2002 writ-respondent No.4 wrote a letter bearing Memo No.COM/RC/S/L/461-462/CRD-2 to the writ respondent No.3 alleging that in a meeting held on 14.8.2002 between the permanent committee and the two tenders it was decided to increase the bid money wherein the writ-petitioner, however, expressed his inability to increase the bid money although the second bidder agreed to pay only Tk.600/- more than that of the writ-petitioner. In the letter dated 10.112002 it was mentioned that in the meeting held on 14.8.2002 the permanent committee approved the second bid, whereas the same writ-respondent No.4 informed writ-respondent No.3 in its letter dated 1.9.2002 that the Standing Committee approved the bid of the writ-petitioner which was subsequently confirmed by another letter dated 12.9.2002, the writ-petitioner further contended that the said letter is arbitrary, malafied and issued at the instigation of the interested quarter with ulterior motive just to harass and humiliate the writ-petitioner. That the writ-petitioner also filed a supplementary affidavit ascertaining that after receiving the complaint of the writ-petitioner vide letter dated 26.82002 (Annexure-E to the writ-petition) the Minister, Ministry-in-Charge of the Communication directed the Director General, Bangladesh Railway to inquire into the matter and take necessary action and pursuant to that the Additional Director General (Operation) inquired into the matter and submitted his report along with a forwarding on 28.112002. The Minister further directed the Director General to take necessary action in the light of the inquiry report and ultimately finding no fault with the tender of the writ-petitioner the authority directed to conclude the agreement with the writ-petitioner Islam Ship Builders and Heavy Engineering being the highest bidder.
(3.) The present respondent Nos.2-5 contested the said Writ Petition by filing affidavit-in-opposition stating, inter-alia that on 13.04.2002 Bangladesh Railway invited tender from the private sectors to lease commercial activities i.e., to collect fares from the passengers and charges for the luggage and parcels etc. of train Nos. 411/412, 453/954, 6455, 6455/456, 461/462 running in the route of Lalmonirhat-Burimari-Parbotipur Section; that 11 persons collected tender schedule but only two organizations submitted the tender namely, Islam Ship Builders and Heavy Engineering 60, Dilkusha Commercial Area, Dhaka and Banna Enterprise, Bambandanga Gabindha; that on 17.7.2002 standing committee sat in a meeting and crutinized those tenders and found that petitioner offered Tk.5,28.000/-per month which was less than Tk.1.02.060/-the trains used to earn while running in the said Section for which the standing committee requested the writ petitioner and M/s Banna Enterprise to remain present on 14.8.2002 in the office of the respondent No. 4; that as scheduled a meeting was held on 14.08.2002 and in the meeting both the bidders namely the writ petition and petitioner herein were present and both the bidders were requested bidders were to give new proposal in writing, but the writ petitioner in a written application intimated that it was not possible on their part to increase their rate more, whereas the other bidder M/s Banna Enterprise submitted an application before the committee to revise rate as Tk. 4590/- per coach trip, Tk. 170/- for per 3 Second Class, Tk. 750/- per Second Class Luggage, Tk.1000/- per Luggage Van. Tk. 4220/- per coach trip of train 455/456. Tk.605/- per S. Tk.800/- per S.A.R. Tk.1000/- per L. (Tk.4590+4220) =8810/- for per coach trip of both pair trains, Tk.17.620/-per day and Tk.528,600/- per month. So Tk.600/- more than that of the writ petitioner Islam Ship Builder and Heavy Engineering and under the above circumstances the Standing Committee recommended for the Second bidder i.e. Banna Enterprise, Bammandanga Gaibandha and as such the impugned letter dated 10.11.2002 has been issued which is not illegal, arbitrary and malafide.;


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