IN THE SUPREME COURT OF BANGLADESH

     HIGH COURT DIVISION

                  (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. 4110 OF 2024 In the matter of:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

AND

                         In the matter of:

Dhali Construction Limited and M/S. Gazi  Construction  Limited  (JV) represented  by  their  authorized representative Gazi Moklesur Rahman.  

                              ....Petitioner. -Versus-

Secretary,  Ministry  of  Housing  and Public  Works,  Public  Works Department,  Bangladesh  Secretariat, Shahbagh, Dhaka and others  

                                                          .....Respondents.

Mr. Hasan Tareq, Advocate

       ......For the Petitioner.

Mr. Bepul Bagmar, D.A.G.

 ……For the respondent.         Judgment on: 01.08.2024

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

Md. Khasruzzaman, J:

On an application under article 102 of the Constitution, on 01.04.2024 Rule Nisi was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause  as  to  why  the  impugned  Memo  No. 25.36.0000.220.07.003.23.358/2 dated 08.10.2023 issued by

the respondent No.4 should not be declared to be have been issued without lawful authority and is of no legal effect and why a direction should not be given upon the respondents to make the due payment to the petitioner pursuant to Memo No. 25.36.0400.140.01.054.(1)-841/8  dated  29.03.2023  and/or pass such other or further order or orders as to this Court may seem fit and proper.”

At the very outset Mr. Hasan Tareq, the learned Advocate for the petitioner submits that he will not press the 2nd part of the Rule Nisi so far the payment of his bill is concerned since the authority will pay his bill so far the work has already been done as evident from Annexure-F dated 29.03.2023 and as such, the same may kindly be discharged as being not pressed.

Facts  summarized  from  the  writ  petition  and  the  papers annexed thereto are that the petitioner is a joint venture contractor firm and engaged in construction with business in Patuakhali and other parts of Bangladesh. Barguna PWD Division, Barguna being a procuring entity invited tender being Tender Invitation Reference No.16.01.0000.037.14.005.18-559  dated  09.01.2019  for construction of 4 storied Zila Model Masjid and Islamic Cultural Center  for  Islamic  Foundation  with  4  storied  Foundation  at Barguna  with  civil,  sanitary,  electric  and  other  ancillary  works under the project of Establishing 560 model mosques and Islamic Cultural Centers in Zila and Upazila of Bangladesh for the Fiscal Year 2017-2018. The petitioner submitted his bid. Ultimately, he was found a successful tenderer of the work. As such, Work Order being No.729/10 dated 27.03.2019 was issued in favour of the petitioner (Annexure-B). Thereafter, contract agreement was signed between the parties. After getting work order, the petitioner started and completed necessary initial work of such project i.e. test piling and load test. Since he was not handed over with the design of piling, the petitioner could not start the construction work and as such, his construction materials kept in the site are at threat of being destroyed. Thereafter, the petitioner by a written application dated  18.08.2019  requested  the  respondent  No.6  to  handover design  of  piling/work  to  complete  the  work  in  time.  But  the design/program  of  work  has  not  been  provided/handed  over despite  several  requests  being  made  by  the  petitioner.  The petitioner ought to have completed the project by 01.10.2020 as per contract agreement. Since the respondents have utterly failed to hand over the site with design of work in time, the duration of the project has already been expired. In the meantime, COVID-19 pandemic  was  started  and  thereafter,  the  market  rate  of construction  materials  increased.  In  that  circumstances,  the petitioner by an application prayed for reschedule of the work order considering the market price of the construction materials. The respondent authority, without paying any heed to the request of the petitioner, vide Memo No.25.36.0400.140.01.054-(1)-841/8 dated 29.03.2023  cancelled  work  order  being  No.729/10  dated 27.03.2019 (Annexure-F). Subsequently, the authority vide Memo

Hence, challenging the order of debarring from participating in all tender activities of Public Works Department, the petitioner filed this writ petition under article 102 of the Constitution and obtained Rule Nisi in the manner as quoted hereinbefore.

No  affidavit-in-opposition  has  been  filed  by  either  of  the respondent.

Mr. Hasan Tareq, the learned Advocate appearing on behalf of the writ petitioner submits that the authority did not serve any show case notice upon the petitioner before the order of debarring him  from  participating  in  all  tender  activities  of  Public  Works Department and as such, the authority violated the established principle of natural justice and as such, the impugned debarment of the petitioner is illegal and without lawful authority. The learned Advocate further submits that the facts and circumstances of the case indicate that the petitioner has no fault of his own about non- completion  of  the  work  in  time,  rather  it  is  the  failure  of  the authority  for  whom  the  work  could  not  be  completed  in  time.

However,  the  learned  Advocate  submits  that  the  petitioner  has every right to know why he would be debarred from participating in the tender. In the present case, the authority did not issue any show cause notice before the impugned order of debarring was passed. This action of debarment is against the settled principle of natural justice and as such, the same is liable to be declared to have been issued without lawful authority and is of no legal effect.

Mr.  Bepul  Barmar,  the  learned  Deputy  Attorney  General appearing on behalf of the respondents submits that since the petitioner could not complete the project work within time, the work order was cancelled and the petitioner was debarred by the impugned order from participating in all tender of Public Works Department  in  accordance  with  law.  Hence,  he  has  prayed  for discharging the Rule Nisi.

We have considered the submissions of the learned Advocates appearing on behalf of their respective party and perused the writ petition and all papers annexed thereto. It appears that the Rule Nisi has two parts. In first part of the  Rule Nisi, the impugned debarment  was  challenged.  In  the  second  part,  the  petitioner prayed for a direction to pay his bills for the work already done by him.  Referring  Annexure-F  to  the  writ  petition,  the  learned Advocate at the very outset submits that he will not press the second part of the Rule Nisi since the authority will pay of his bill. So, we will confine within the first part of the  Rule Nisi which relates  to  debarment  of  the  petitioner  from  participating  in  all tender activities of Public Works Department.

Admittedly, on the allegation of non completion of work within
time, the work order was cancelled by Memo dated 29.03.2023
(Annexure-F). Again on the self same allegation (h_v mg‡q KvR m¤úv`‡bi e¨_©Zvi Rb¨), the authority vide Memo dated 08.10.2023 debarred the
petitioner from participating in all tender process of Public Works
Department (Annexure-E). So, what we found is that the petitioner
was punished twice for the self same allegation which raises
question over the action of the respondents. The authority cannot
punish the petitioner twice for the same offence as per law. So far

the debarment of the petitioner is concerned the petitioner submits that no show cause notice was served upon him before debarring him  from  participating  in  all  tender  processes  of  Public  Works Department has been passed. No affidavit-in-opposition has been filed to controvert the statements made in the writ petition. General principle of law is that the writ petition is a summary proceeding which is to be disposed of on affidavit. Statements made in the writ petition  are  required  to  be  controverted  by  filing  affidavit-in- opposition. If any statement is not controverted by filing affidavit- in-opposition, the Court is to proceed as if such statement made in

the writ petition has been admitted by the respondents. And as such we are of the view that the statements made in the writ petition and allegations made against the respondent-authorities in respect of non service of any show cause notice are deemed to have

been admitted by the said respondent authority. This view finds support in the case of Naseem Bano Vs. U.P. reported in AIR 1993 SC 2592. 

The basic principle of fair procedure is that before taking any action against a man the authority should give him notice of the case and afford him fair opportunity to answer the case against him and to put his own case. This view finds support in the case of RAJUK Vs. Dhaka WASA, 14 BLC(AD)129; Notice has to given if any person is sought to be affected in his right, interest, property or character. This view also finds support in the case of Abul Ala Moudoodi Vs. West Pakistan, 17 DLR(SC)209. Here in this case, the petitioner has a valid licence as a contractor. Previously he was awarded with the work order and very successfully completed those works  which  are  evident  from  Annexures-A  series  to  the  writ petition.  The  allegation  which  has  been  brought  against  the petitioner  is  that  he  did  not  complete  the  work  in  time.  The authority has already cancelled his work order and the work was re-tendered and the new contractor has already started the work. Surprisingly, by another order the petitioner has been debarred from  participating  in  all  tender  processes  of  Public  Works Department. The authority could issue show cause notice before taking such action of debarment against the petitioner. This is violation of principle of natural justice as held by the Appellate Division in the cited case. So, the impugned order of debarring is without lawful authority and is of no legal effect and as such the Rule Nisi is liable to be made absolute.

In the result, the first part of the Rule Nisi is so far concerned, made absolute.

Thus  impugned Memo No. 25.36.0000.220.07.003.23.358/2 dated 08.10.2023 issued by the respondent No.4 is hereby declared to have been issued without any lawful authority and is of no legal effect and set aside.

There will be no order as to costs.

Communicate the order.

                  K   M   Z a h i d  Sarwar, J:

I agree.