Thursday, December 12, 2019 | ePaper

Public Procurement Act

Public Interest must be Upheld

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High Court Division :
(Special Original Jurisdiction)
Md Rezaul Haque J
 Md Khurshid Alam Sarkar J
 Bangladesh Passengers
 Welfare Samity…………................... Petitioner
                 vs
Government of the People's Republic of Bangladesh
and others .. .............. Respondents
Judgment
December 13th, 2017

Constitution of Bangladesh, 1972
Article 102(2)
A bonafide PIL litigant, after being informed by the Court that there is no point of delivering a full-fledged Judgment because of lack of merit in the Rule or not having any contentious legal issues which requires to be examined by the apex Court, does not intend to waste the invaluable time of this Court, which is overburdened with a huge backlog of cases. .. ....(18)
Public Procurement Act (XXIV of 2006)
Section 15
In order to purchase any goods or procure any service for any public body, a 'terms of reference' and 'specification' should be prepared by the procuring entity. .. .... (13)
Concord Pragatti Consortium Ltd vs BPDB, 66 DLR 475; Mohd, Emrul Kayes vs Government of Bangladesh, 3 LNJ 269 = 19 BLC 76 and Salamatullah vs Government of Bangladesh 7 ALR 2016(1) 147 ref.
ABM Altaf Hossain with ARM Kamruzzaman Kakon, Advocates-For the Petitioner.
Muniruzzaman with Shamsul  Hasan, Advocates-For Respondent No.4.
Muhammad Rafiul Islam,  Advocate-For the Respondent No.3.

Judgment
Md Khurshid Alam Sarkar J : Rule was issued calling upon the respondents to show cause as to why the Tender Notice dated 4-7-2017 issued under the signature of respondent No.5, which was published in the Daily Jugantor on 4-7-2017, inviting national open competitive tender for appointment of Bus Operators for the routes (i) Dhaka-Kolkata-Dhaka, (ii) Agartola-Dhaka-Kolkata-Agartola, (iii) Dhaka-Khulna-Kolkata-Dhaka,  (iv) Dhaka-Agartola-Dhaka and (v) Dhaka-Sylhet-Shilong-Guwahati-Dhaka for two years without fixing the bus-fares (annexure-B), should not be declared to have been issued without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to fix and publish the specific bus-fares before initiation of tender for the (i) Dhaka-Kolkata-Dhaka, (ii) Agartola-Dhaka-Kolkata-Agartola, (iii) Dhaka-Khulna-Kolkata-Dhaka, (iv) Dhaka-Agartola-Dhaka and (v) Dhaka-Sylhet--Shilong-Guwhati-Dhaka routes and / or pass any other order or direction as this Court may deem fit and proper.
2. The fact of the case, as stated in the writ petition, is that the petitioner is a registered social welfare association namely, "The Passengers' Welfare Association of Bangladesh" (hereinafter referred to as 'the petitioner or 'the (PWAB') and it works for the rights and security of the passengers who travel in various inland & international routes from Dhaka. On 17th June, 1999, the Government of People's Republic of Bangladesh and the Government of People's Republic of India agreed to operate passenger carrier bus service between Dhaka and Kolkata and, eventually, the representatives of both the countries made a Protocol for operating the bus service which was renewed on 6th June, 2015 and, according to the Protocol, the fare of the bus is fixed at 11 USD (Taka 902 in BDT) including the breakfast. Thereafter, the Government of both the countries started four more routes namely, (i) Agartola-Dhaka-Kolkata-Agartola, (ii) Dhaka-Khulna-Kolkata-Dhaka, (iii) Dhaka-Agartola-Dhaka and (iv) Dhaka-Sylhet-Shilong-Guwhati-Dhaka, routes towards mitigating the passengers' expectations. But unfortunately all the Government and non-Government bus operators/companies are collecting Taka 1,700 to 2,200 from the passengers ignoring the fare fixed by the two countries. On 4-7-2017, the Deputy General Manager of the Bangladesh Road Transport Corporation (BRTC) (respondent No.5) issued a Tender Notice which was published in the Daily Jugantor on 4-7-2017 (annexure-B) inviting national open competitive tender for appointment of bus operators for (i) Dhaka-Kolkata-Dhaka, (ii) Agartola-Dhaka-Kolkata-Agartola, (iii) Dhaka-Khulna-Kolkata-Dhaka, (iv) Dhaka-Agartola-Dhaka and (v) Dhaka-Sylhet-Shilong-Guwhati-Dhaka routes for two years without fixing and publishing any chart specifying the bus-fares for the above-mentioned routes. Under this circumstance, the petitioner made representations to the respondent Nos. I, 3 and 4 to take necessary actions for stopping such anarchy, but the respondents did not respond to the said letters. Being aggrieved at and dissatisfied with the issuance of the aforesaid tender notice dated 4-7-2017, the petitioner moved this Court by filing an application under Article 102 of the Constitution. Hence this Rule.
3. Bangladesh Road Transport Authority (hereinafter referred to as respondent No.3 or the BRTA) contested this Rule by filing an affidavit-in-opposition and, also, the Bangladesh Road Transport Corporation, (hereinafter referred to as respondent No.4 or the BRTC) contested this Rule by filing a separate affidavit-in-opposition. The common contentions of both the respondents, as gathered from the affidavits, are that as per the terms of Protocol on operation of passenger bus service between the Government of People's Republic of Bangladesh and the Government of People's Republic of India, at first, the West Bengal Surface Transport Corporation Limited sent a time-schedule and fare-chart on 12-6-2015 to the BRTC and, after scrutinizing the above proposal, the BRTC accepted the same on 18-6-2015. Since then, the time-schedule and fares for the said routes are in place and the same are in operation till now. Therefore, the allegation raised by the petitioner against the Government, BRTA and BRTC that tender has been called without fixing the bus-fare is not correct, for, the bus fare has already been fixed upon observing   the provisions of the Protocol. Currently, by the impugned tender notice, the BRTC simply wants to hire buses for the said routes to be run under the guidance and authority of the BRTA and BRTC.
4. Mr ABM Altaf Hossain, the learned Advocate appearing for the petitioner, at the very outset candidly submits that the impugned tender notice dated 4-7-2017 has been issued with a malafide intention in violation of Section 15 of the Public Procurement Act, 2006 (shortly, PPA) inasmuch as the concerned authorities cunningly refrained from mentioning the bus-fares for all the five routes in the impugned tender notice.
 5. He, then, takes us through the annexure-C series, which are the earlier tender notices of the years 2002, 2007 & 2011, and submits that although in the previous tender notices, the bus-fares of Dhaka-Kolkata-Dhaka route were mentioned having fixed 22 USD and 24 USD respectively, but in the impugned tender notice dated 4-7-2017 no such specific bus-fares were quoted, which created an opportunity for the bus operators to charge bus-fares as per their whims.
6. By making the above submissions, the learned Advocate for the petitioner prays for making the Rule absolute.
7. Per contra, Mr Muniruzzaman, the learned Advocate for respondent No.3, places before us the impugned tender notice in tandem with the provisions of Section 15 of the PPA and submits that when anyone with ordinary prudence would skim through the impugned tender notice and side-by-side read the provisions of Section 15 of the PPA, s/he would take a view that the impugned tender notice has been issued in consonance with the said provisions of the PPA.
8. He next contends that the petitioner does not have any track record of working pro-bono publico  and, now, in the garb of filing this PIL case, the petitioner is working for protecting the interest of the bus operators who are presently plying buses in the said routes and submits that this writ petition, having been filed at the behest of the interested group and person, is a 'Personal Interest Litigation', as the same does not fulfill the criteria of a Public Interest Litigation (PIL). His next count of submission on the maintainability of this writ petition is that PPA being a special law which contains provisions for preferring appeal to the prescribed appellate authority against any decision with regard to public procurement, approaching this Court directly is not permitted by Article 102(2) of the Constitution, inasmuch as this writ petition has not been filed for enforcement of any fundamental right.
9. Lastly, Mr Muniruzzaman sums up his arguments by submitting that by the impugned tender notice, since the petitioner was not prevented from enjoyment of the protection of law, nor was any action detrimental to the people's life, liberty, reputation or property taken, nor was anything found which is in breach of any legal or fundamental rights of the petitioner, there is no reason for invoking writ jurisdiction.
10. By putting forward the above sub-missions, the learned Advocates for respondent  Nos. 3 and 4 pray for discharging the Rule with exemplary costs.
11. We have heard the learned Advocates for the petitioner and respondent Nos. 3 & 4, perused the writ petition as well as the affidavits-in-opposition along with their annexures and considered the relevant laws and decisions placed before us.
12. The prime issue to be examined by this Court is whether the impugned tender notice has been issued in violation of Section 15 of the PPA. For adjudication of the said issue, it would be profitable if we look at the provisions of Section 15 of the PPA, which are reproduced below:
১৫ । বিনির্দেশ (ংঢ়বপরভরপধঃরড়হ) এবং কর্মপরিধি (ঃবৎসং ড়ভ ৎবভবৎবহপব) প্র¯'ত। - (১) ক্রয়কারী, দরপত্রদাতাগণের মধ্যে পক্ষপাতহীন ও উন্মুক্ত প্রতিযোগিতার পরিবেশ স"ষ্টি করিবার উদ্দেশ্যে, ক্রয়ের জন্য নির্দিষ্টকৃত পণ্য ও সংশ্লিষ্ট সেবা, অথবা কার্য ও ভৌত সেবার কারিগরি বিনির্দেশ ও বর্ণনা প্র¯'ত করিবার সময় উহার প্রত্যাশিত কার্যসম্পাদন যোগ্যতার স্তর, বৈশিষ্ট্য এবং মান সম্পর্কে সঠিক ও পরিপুর্ণ বর্ণনা প্রদান করিবে এবং সেইমত পণ্য কার্য,  সেবা ক্রয় নিশ্চিত করিবে; তবে উহা যেন সীমাবদ্ধকর না হয় তাহার নিশ্চয়তা বিধান করিতে হইবে ।
(২) ক্রয়কারী, পরামর্শকদের মধ্যে পক্ষপাতহীন ও উন্মুক্ত প্রতিযোগিতার পরিবেশ স"ষ্টি করিবার উদ্দেশ্যে, পরামর্শকদের কার্যপরিধি নির্ধারণের সময় পেশাগত ও বুদ্ধিব"ত্তিক সেবা ক্রয়ের সঠিক ও পূর্ণাঙ্গ বর্ণনা প্রদান করিবে; তবে প্রতিযোগিতা সীমিত করিতে পারে এইরূপ কোন শর্ত আরোপ করা যাইবে না ।
13. From a plain reading of the above-quoted provisions, all that we understand is that in order to purchase any goods or procure any service for any public body, a 'terms of reference' and 'specification' should be prepared by the procuring entity- Some general guidelines for all the public procuring entities have been provided in part 1 of Chapter 3 of the PPA consisting of Sections 9 to 24 thereof; requirement for formulation of a "terms of reference' and preparation of 'specification' is one of the above guideline.
14. Here, in this case, the procuring entity is the BRTC and it seeks to procure the service of the bus operators. As per the agreement between the two countries, the BRTA and the BRTC, being the concerned public bodies under the Government of Bangladesh, are responsible to make arrangements for tour from Dhaka to different destinations of India. The BRTC owns buses which are being plied in the different inland routes of Bangladesh, but it does not have sufficient buses with the facilities that are needed for plying in any international route. In this situation, the BRTC has three options, namely, either it can assemble/produce quality buses or it can import some buses from foreign company which could fulfill the said standard or it can hire some buses from the local bus companies who could meet up the said standard. In this case, the BRTC is procuring the service from the local bus companies with the required standards. In order to achieve the said standards, the BRTC has prepared the 'specification' as well as it has formulated a 'terms of reference' which are very much evident from the papers annexed to the writ petition and affidavits-in-opposition. So, it is crystal clear to us that the impugned tender notice is about hiring buses from the eligible local bus operators/ companies. In other words, since the BRTC does not have sufficient number of quality buses for plying in the international routes, it is simply hiring the buses for the use of five routes heading to the different places of India. Had the BRTC possessed the buses with the required standards in its own depot, there was no need to hire buses from other private companies.
15. That is to say, making arrangements of the standard buses through producing/ importing/hiring (here, the BRTC is seeking to hire the buses) for using the same in any route and fixing of the bus-fares are completely two different tasks of the Government and its concerned bodies. From perusal of annexure-2 filed by the BRTC, it is evident that the bus-fares and time-schedules for all the five routes have been fixed long ago by the concerned authorities of the two countries and the present operators are operating their tours as per the said time-schedule and bus-fares.
16. If it is alleged by any passenger or organization that the Government and its concerned bodies, such as the BRTA and BRTC have fixed the fare in breach of the provisions of Protocol/ agreement between the two countries, only on that ground an aggrieved passenger / a recognized welfare organization would be in a position to challenge the same before this Court. The petitioner's case, thus, in no way, arises out of or is connected with any provisions of the PPA. Even had this case been a subject matter of PPA, the petitioner was required to exhaust the grievance procedure laid down in the PPA and thereafter he had to approach the Review Panel, as has been observed in the case of Concord Pragatti Consortium Ltd Vs BPDB, 66 DLR 475.
17. Thus, we find that the present writ petition is a misconceived one, for, there is no nexus of publication of tender notice with fixing of bus-fares in the tender, albeit bus-fares for all the five routes have been fixed by the concerned authorities of the two countries as per the stipulations of the Protocol.
18. When this Court arrived at the above findings, after a lengthy hearing on the merit of this Rule, we asked the learned Advocate for the petitioner to take instructions from his client as to whether he would opt to non- prosecute the present Rule towards assisting this Court in disposal of other matters, for, there is no usefulness of receiving a detailed Judgment in a meritless case from this Court at the expense of wasting its valuable time. On the following day, the learned Advocate for the petitioner appearing before us informed that his client wishes to receive a full-fledged Judgment. This prompted this Court to examine and consider the standing of the petitioner as a PIL litigant and his motive of filing the instant writ petition. From our experience, we have noticed that a bonafide PIL litigant, after being informed by the Court that there is no point of delivering a full-fledged Judgment because of lack of merit in the Rule or not having any contentious legal issues which requires to be examined by the Apex Court, does not intend to waste the invaluable time of this Court, which is overburdened with a huge backlog of cases. In a fit and proper PIL case, this Court is always keen and ready to spend as much time as required towards redressing the grief of the commoners. In the past, this Court has never shrugged off its duty to espouse and protect the rights of the citizen, not only on the basis of a PIL case by a petitioner but also, on its own volition by issuing a suo-motu  Rule. In the case of Mohd. Emrul Kayes Vs Government of Bangladesh 3 LNJ (2014) 269=19 BLC 76, this Court upon revisiting scores of decisions of our jurisdiction and of this sub-continent outlined the locus standi of a petitioner for a PIL case, on top of delineating the requirements for making out a PIL case.
19. It was alleged by the learned Advocate for the respondents at the time of passing the interim order of Status-quo that if the tender process is halted, the present bus operators would be unduly benefited. Despite the respondents' above allegations, this Court had passed the interim order with an aim to examine the legal and factual issues raised by the petitioner and, that is how, survived from being in fructuous eventually, this Court proceeded to hear and dispose of the Rule on merit. After allowing the parties to place their respective cases and make their arguments at length, eventually when this Court expressed its opinion in the open Court  that there is no merit in the Rule nor is there any  legal issue which requires to be examined by  our Appellate Division and, therefore  there is no point of delivering a full-fledged Judgment  in such a frivolous case, had the petitioner been  a bonafide PIL litigant, he would not have  insisted upon this Court to deliver a Judgment in a meritless case causing loss to the  bonafide litigants who are striving for months together to have full-fledged Judgments in their genuine and fit cases.
20. If the petitioner is really working for ensuring the rights of the passenger the petitioner was supposed to make out a case of excess/over-charging of the bus-fares than what is displayed in the chart of the bus-fares upon making a survey among the passengers and collecting evidences thereto. The petitioner then could have taken the matter to the notice of the BRTC at first and, thereafter, at BRTC's failure to take action against delinquent operator the petitioner could have approached this Court. Clearly, this would have been an issue which is not at all connected with the PPA.
21. Moreover, from a minute perusal of the annexures, it transpires that the petitioner, in a desperate attempt to obtain a Rule and an interim order of Status-quo from this Court made a false statement that the tender notice has been issued without fixing the bus-fares of  the routes although the fact was known to the petitioner that the bus-fares for all the five routes are already in place and there is no nexus or usefulness of mentioning the bus-fares in the tender notice. Therefore, the allegations raised  by the respondents that the petitioner is serving the purpose of present bus operators, cannot be ruled out given that the manner and style of handling this case by the petitioner appears to us to be dubious, for, the petitioner is adamant to take the matter to the Appellate Division in an expectation to allow the present bus operators to enjoy the advantage of the interim order of Status-quo passed in this case. It leads us to hold that the present writ petition is a pseudo and frivolous petition filed for the benefit of the present bus operators and, thus, it is not a Public Interest Litigation (PIL).
22. The above conclusion directs us to consider as to whether exemplary costs should be slapped upon the petitioner. In the case of Salamatullah Vs Government of Bangladesh 7 ALR 2016 (1) 147, this Court slapped a cost of Taka 5,00,000 (Five lacs) upon the petitioner for misguiding this Court by suppressing the facts in obtaining the Rule and the interim, order. This case also appears to us to be a fit case for slapping exemplary, costs to be paid by the petitioner to the Government exchequer, for abusing the process of this Court causing wastage of its invaluable time. However, taking into consideration the humble prayer of exonerating the petitioner, made by the petitioner's learned Advocate who is a highly dignified person of this Court having possessed high standing in the legal profession, we restrain ourselves from  imposing any costs for this time.
23. In the result, the Rule is discharged without any order as to costs and the order of Status-quo granted earlier by this Court is hereby vacated.
The office is directed to supply copies of this order at once to all the respondents who shall be at liberty to proceed with their tender notice.

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