ASHRAF Vs. MD. ZAHANGIR ALAM

JUDGEMENT

(1.) These two appeals by leave are directed against the common judgment and order dated 4-1-2005 passed by a Division Bench of the High Court Division in Writ Petition No. 1463 of 2004 making the Rule absolute.

(2.) The short fact is that Md. Zahangir Alam, the respondent No.1 in Civil Petition No. 223 of 2005, filed Writ Petition No. 1463 of 2004 stating, inter alia, that the Ministry of Housing and Public Works decided to sell out 374.31 metric tons of old iron and steel materials lying in the godowns in Sylhet PWD Zone. Accordingly, auction notices inviting quotations of 14 items of the aforesaid materials were published by the writ respondent No.2, Executive Engineer, Sylhet PWD Division, Sylhet. Since the highest price quoted was not satisfactory further quotations were invited by calling tenders consecutively for 5(five) times. The writ petitioner along with others participated in the 4th and 5th call of tenders. His quotations in the 5th call were found valid and on 28-12-2003 the writ petitioner was declared as the highest bidder by the tender committee as he was found to have quoted the highest price in all 14 items. Thereafter, the tender committee forwarded all the tenders for approval by the Zonal disposal committee headed by the writ respondent No. 5, Additional Chief Engineer, PWD Chittagong Zone and thereafter on receiving decision of the said committee the respondent No. 2, the Executive Engineer, Sylhet PWD Division asked the writ petitioner in 5 separate letters dated 18-3-2004 (vide Annexure-C series to the writ petition) to deposit the bid money in respect of 5 items only. The writ petitioner accordingly, deposited the bid money. But the writ petitioner was surprised to know that the writ respondent No. 2, Executive Engineer, published fresh auction notice inviting quotations for sale of 252.409 metric tons of MS Rods and 40.243 metric tons of MS bars as the remaining materials of the 5th call and fixed 28-3-2004 for submitting fresh tenders without any notice to the writ petitioner. The writ petitioner, therefore, filed the writ petition challenging the auction notices of the 6th call dated 6-3-2004 and obtained the Rule.

(3.) Writ respondent Nos. 2 and 3 as well as the writ respondent No.7 Messrs Ashraf and Sons opposed the Rule by filing separate affidavit-in-opposition denying the material statements in the writ petition contending, inter alia, that the writ respondent Government in exercise of its power under clause 9 of the Tender Schedule accepted the price offered by the writ petitioner in respect of 5 items only and accordingly, asked him vide Annexure-C series to the writ petition to deposit the bid money and take delivery of the said 5 items and the writ petitioner having complied with the same without any demur was stopped from filing the writ petition under reference. Accordingly, the Rule was liable to be dismissed.