High Court Division :
(Special Original Jurisdiction)
Farah Mahbub J
SM Maniruzzaman J
Shahidullah (Md) Represented by his constituent Attorney Md Ibrahim…………Petitioner
Commissioner of Customs, Customs House Chattogram and others………Respondents.
April 3rd, 2019
Constitution of Bangladesh, 1972
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.
The petitioner is admittedly a highest bidder at 3rd auction, but his bid was cancelled by the auction committee, 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, with the committee is duly empowered. 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…………………………. (91 17).
Constitution of Bangladesh, 1972
While motion was being moved it was brought to the notice of this Court on the part of the movement 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 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 application as being not pressed. ……………....... (21)
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……...(22)
Md Jashimuddin vs Bangladesh, 17 BLD (AD) 227 ref.
Anjuman Ara Advocate with Md Mozibur Rahman, Advocate-For the Petitioner.
Shams-ud-Doha Talukder, Assistant Attorney-General-For the Respondent No.1
Farah Mahbub J : In this Rule, issued under Article 102 of the Constitution of the People's Republic of Bangladesh, the respondents have been called upon to show cause as to why the inaction of the respondents to release the auctioned goods in favour of the petitioner under Tender Sale No.10/2015 dated 23-12-2015, Catalogue Serial No.96 and Lot No.OBPC-2/598/13(Annexure-E and E-l respectively) "without caring about another auction" for the same goods under Tender Sale No.8/2017 dated 19-10-2017, Catalogue Serial No.57 and Lot No.OBPC-2/598/13 (Annexure-K, K(1)-(2) respectively), should not be declared to have been done without any lawful authority and hence, of no legal effect and also as to why they should not be directed to declare the notice vide Nathi No.588/KAS/ AUK/ Aa:No:Ano/So Ngsho:Te:Se-l0/15 dated 5-10-2017 of the respondent No.4 cancelling the auction so far as it relates to the goods under Catalogue Serial No.96 and Lot No.OBPC-2/598/13) in Tender Sale No.10/2015 to be declared to have been passed without lawful authority and hence, of no legal effect.
2. At the time of issuance of the Rule operation of the impugned auction under Tender Sale No.8/2017 dated 19-10-2017, Catalogue Serial No.57 and Lot No.OBPC2/598/13(Annexure-K, K(1)-(2) respectively) had been stayed by this Court for a prescribed period.
3. Relevant facts necessary towards disposal of the instant Rule are that on 4-5-2014 the respondents concern published an auction notice for selling the imported goods under Tender Sale No.03/2014 fixing 12-5-2014 as the date of auction. On the said date respective bidders participated in the bid on payment of 10% earnest money. One M/s Corporation became the highest bidder; however, since its offer did not fulfil the minimum price value, as fixed by the auction committee under clause 12(Ka) of the lender schedule, hence auction process was cancelled by the authority concern with decision to go for 2nd auction (Annexure-A series). Accordingly, on 17-7-2014 an auction notice was published for the 2nd time for selling the imported goods under Tender Sale No.05/2014 fixing 24-7-2014 for opening bid.
On the said date respective bidders participated in the bid upon depositing 10% earnest money. However, the offer of one Inkiad Corporation became highest. But, since its offer did not fulfil the requirement as stipulated in clause 12(ga) of the tender schedule the authority opted for 3rd auction `(Annexure-B series). On 15-12-2015 the Customs authority' published the auction notice for the 3rd time which was duly published in the "Daily Suprobhat" for selling the imported goods in question under Tender Sale No.10/2015, Catalogue Serial No.96 and Lot No.OBPC-2/598/13 fixing 23-12-2015 for auction. Respective bidders participated in the bid including the petitioner upon depositing 10% earnest money. His offer of Taka 45.52 lac became the highest (Annexure-C and C-1 respectively). Accordingly, the petitioner made several representations on 30-5-2016, 2-8-2016, 22-5-2017 and 11-7-2017 respectively before the authority concern as well as the Commissioner of Customs, Customs House, Chattogram, with request to take necessary steps towards release of the auction goods in his favour, but there was no response (Annexure-F and F-1 respectively). On 5-10-2017 the respondent No.4 vide Nathi No.588/ KAS/ AUK/ A:No:Ano:/ Songsho:Te:Se-l0/15 (Annexure-H to the writ petition) had cancelled the auction so far as it relates to the imported goods under Catalogue Serial No.96 (Lot No.OBPC-2/598/13), Tender Sale No.10/2015 and took decision to go for 4th auction. Accordingly, auction notice was published for the 4th time on 18-10-2017(Annexure-K-1) for auction of the said imported goods.
4. Immediate thereafter the petitioner filed writ petition No.14351 of 2017 seeking direction upon the respondents concern to dispose of his representation dated 22-5-2017. Allowing the same this Court vide order dated 16-10-2017 had directed the respondent No.1 to dispose of the application of the petitioner dated 22-5-2017 (Annexure-G) within a period of 15 (fifteen) days from the date of receipt of the certified copy in accordance with law(Annexure-J).
5. In this regard it has been alleged, inter alia, that the respondent No.1 without complying the aforesaid order of this Court published the 4th auction notice for selling the imported goods under Tender Sale No.08/2017 fixing 18-10-2017 as the date of auction. In this regard, it has also been stated that on the date of auction respective bidders participated in the bid upon depositing 10% earnest money; however, the respondent No.6 became the highest bidder (Annexure-K, K(1)-(2) respectively). Under the stated circumstances, the petitioner made representations to the respondent No.2 with request to take necessary steps towards release of the auction goods in his favour. In response, ultimately it was opined by the respondent concerned on 18-2-2018 that after disposal of writ petition No.14351 of 2017 decision would be taken towards issuance of DO (Delivery Order).
6. Under the stated circumstances, challenging the inaction of the respondents concern in releasing the goods in question in favour of the petitioner "without caring about another auction for the same goods under Tender Sale No.08/2017 dated 19-10-2017" and also, cancellation of the auction so far it relates to Catalogue Serial No.57 (Lot No.OBPC2/598/13) the petitioner filed the instant writ petition and obtained the present Rule along with an order of stay of the process of auction dated 19-10-2017 in connection with Tender Sale No.8/2017 with direction upon the respondent concern to release the goods in favour of the petitioner within a period of 15(fifteen) working days, if it was found that the petitioner was the highest bidder in the 3rd auction in respect of the said goods.
7. Being aggrieved with the interim order of stay and direction the respondent No.1 filed Civil Petition for Leave to Appeal No.4609 of 2018 before the Appellate Division of the Supreme Court of Bangladesh. The learned Chamber Judge of the Appellate Division vide order dated 17-12-2018 directed the respective parties to maintain status quo on the subject matter of the dispute till date.
8. Said order was subsequently modified staying operation of the order dated 23-9-2018 passed by this Court in the instant writ petition so far it relates to the interim order of stay and direction till disposal of the Rule (Annexure-L series).
9. In support of the Rule the main contention of the petitioner is that he participated in the 3rd auction dated 15-12-2015 upon depositing 10% earnest money and became the highest bidder; hence, a right has been accrued to have the goods released in his favour. But upon cancelling the same vide order dated 510-2017(Annexure-H to the writ petition) the respondent concern went for 4th auction on 19-10-2017 by publishing the auction notice in the respective newspaper, which is illegal and, as such, is liable to be declared to have been passed without lawful authority and is of no legal effect.
10. Respondent No.1 entered appearance by filing affidavit in opposition stating, inter alia, that the goods in question was firstly put into auction on 12-5-2014 vide Tender Sale No.03/2014, but the bid amount was much less than 60% of the reserved value. Accordingly, 2nd auction was held under Tender Sale No. 05/14 dated 17-7-2014. However, the highest bid was Taka 76,68,000; hence, it was cancelled by the auction committee. Again, 3rd auction was held under Tender Sale No.10/2015 and the highest bid of the bidder, the petitioner, was Taka 45,52,000, which was much lower than 60% of the reserved value. Having not accepted the said bid the customs authority further put the goods in auction under Tender Sale No. 08/ 2017 dated 18-10-2017. In the said tender highest bid was Taka 63,90,000, which was more than Taka 18,38,000 than the petitioner's bid amount. Subsequently, the customs authority duly approved the 4th bid on 8-11-2017 (Annexure-2).
11. In this regard, it has been stated further that the petitioner filed application before the Commissioner of Customs, Chattogram on 225-2017 for delivery of the auctioned goods in which he was the highest bidder; however, his bid was ultimately not approved by the auction committee. Subsequently, the petitioner filed writ petition No. 14531 of 2017 for disposal of his application dated 22-5-2017. On receipt thereof the customs authority duly disposed of the said application and informed the same to the petitioner on 31-10-2017. Suppressing those facts the petitioner has filed the instant writ petition on the plea that without complying with the order dated 16-10-2017 passed by this Hon'ble Court in writ petition No.14351 of 2017 the respondent concern had published 4th auction notice, 10(ten) months after the approval of the 4th auction and obtained the instant Rule along with an order of stay with direction.
(To be continued)