IN THE SUPREME COURT OF BANGLADESH
(APPELLATE DIVISION)
Civil Review Petition Nos. 79, 78 & 80 of 2002
Decided On: 29.08.2002
Appellants: Ekushey Television Ltd. & another
Vs.
Respondent: Dr. Chowdhury Mahmood Hasan and ors.
And
Appellants: Citicorp International Finance Corporation & another
Vs.
Respondent: Dr. Chowdhury Mahmood Hasan and ors.
And
Appellants: Mr. A.S. Mahmud
Vs.
Respondent: Dr. Chowdhury Mahmood Hasan and ors.
**Hon’ble Judges:**Mainur Reza Chowdhury, C.J., Md. Ruhul Amin, Mohammad Fazlul Karim, K.M. Hasan, Syed J.R. Mudassir Husain, Abu Sayeed Ahammed and Md. Fazlul Haque, JJ.
Subject: Civil Procedure
Catch Words
Mentioned IN
**Acts/Rules/Orders:**Code of Civil Procedure, 1908 (CPC) - Order XIX Rule 1; Constitution Of The People’s Republic Of Bangladesh - Article 104, Constitution Of The People’s Republic Of Bangladesh - Article 105; Evidence Act, 1872 - Section 114(e); Telegraph Act, 1885 - Section 4(1); Wireless Telegraphy Act, 1933 - Section 5
Counsels:
For Appellant/Petitioner/Plaintiff: Rafique-ul-Huq, Senior Advocate, M. Moniruzzaman Khan, Advocate with him instructed by A.K.M. Shahidul Huq, Advocate-on-Record, Dr. Kamal Hossaain, senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record, Syed Ishtiaq Ahmed, senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record
For Respondents/Defendant: Abdur Razzaq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record, for Respondent No. 1, A.F. Hassan Ariff, Attorney General, Fida M. Kamal, Additional Attorney General, Adilur Rahman, Deputy Attorney General with him instructed by Md. Ataur Rahman Khan, Advocate-on-Record for Respondent Nos. 4-8 (In all the cases)
Disposition:
Petition Dismissed
Case Note:
Article 105 of the Constitution of People’s Republic of Bangladesh**
Review of judgments or Order by Appellate Division****
Article 104 of the Constitution - Power to do “complete justice”
A review lies only when the alleged error in the judgment is so evident that it can be established without going into elaborate arguments and factual matrix of the case. One of the universally acknowledged fundamental principles of review is that an error is necessary to be a ground for review but it must be one, apparent on the face of the record, that keeping it on record will be legally wrong. The contention that the Court has gone wrong in the application of law to the facts or the exposition of law is erroneous does not constitute valid grounds for review.
Under Article 104 of the Constitution, this Court derives plenary power to do ‘complete justice’ which cannot be restricted in any manner excepting by what has been provided in the Constitution itself. The power to do complete justice is not restricted only in respect of facts coming before it in the form of decision by the High Court Division. If the Court finds it necessary within the expression of ‘complete justice’, it may, in view of the power conferred upon it under Article 104 of the Constitution, refer to any facts, in the affidavit it, which the High Court Division refrained from doing under the law.****
A new concept of ‘proportionality’ as a possible ground for judicial review has been It aims to maintain a proper balance between any adverse effect, which the Courts decision may have on the rights, liberties or interests of persons. It involves the exercise of balancing relevant considerations like, the balancing test, the necessity test and the suitability test. As a ground for judicial review it is absolutely a new concept to our jurisprudence. And in accepting it Court shall have to accord different weights to different ends, which cannot be allowed in a review**
Industry: Finance
Industry: Telecom
JUDGMENT
K.M. Hasan, J.
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These review petitions are directed against the judgment and order dated 2.7.2002 passed by this Court in petition for Leave to Appeal Nos. 504, 510, 516, 517 and 636 of 2002 dismissing them. The facts of the case and materials relating thereto are already discussed in the judgment delivered by this Court. But the relevant facts are to be briefly stated for a proper appreciation of the grounds urged by the petitioners for review of the judgment.
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In 1998, Ministry of Information invited tenders, by publishing a notice dated 6.5.1998, from local and foreign firms individually or under joint venture to install and operate a television channel under private ownership. The tenders of seventeen enterprises who participated were opened on 25.6.1998.
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The proposals of the participants in the tender were evaluated by a technical committee and out of seventeen participants, the offer of Minard (Bangladesh) Ltd. was declared commercially unsuccessful. The rest were divided into three categories.
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The first category included three companies who were found to be satisfactory. Second category included three participants whose tender could be considered as a second preference. The technical committee found the tender of the other ten participants unacceptable. In the third category Ekushey Television was placed at serial No. 5.
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After submission of the evaluation report dated 9.7.98, the technical committee came under heavy pressure from an interested group. As a result of which, the technical committee changed the evaluation report and Ekushey Television, which was in the rejected list, in the earlier and original evaluation report, was placed in the list of the participants found satisfactory. This evaluation report was also dated 9.7.98 and was signed by the same technical committee members.
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By a letter dated 16 February, 1999, to the Ministry of Information, the Ministry of Finance set out a number of conditions for granting license to Ekushey Television. One of the conditions was that, if the private channel transmitted its program simultaneously with the B.T.V. the private channel would pay Tk. 1200/= per hour and when no program was transmitted by B.T.V. the hourly charge would be Tk. 1800/= (Annexure-C of the writ petition).
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But upon receiving representation dated 24 February, 1999, from Mr. A.S. Mahmud, Chairman, E.T.V., (Annexure-D), the Ministry of Finance by a back dated Memo dated 16.02.1999 (Annexure-E) deleted paragraph-‘Cha’ of the original Memo (Annexure-‘C’) of the same date issued by the Ministry of Finance, by which the ETV was exempted from paying hourly charge of Tk. 1200/- or Tk. 1800/- Thus depriving the Government exchequer huge amount of money every year.
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The further case is that though Mr. A.S. Mahmud did not participate in the tender on behalf of ETV, yet the agreement was signed between the Government of Bangladesh and Mr. A.S. Mahmud, in violation of Tender Notice. A company under the name and style of Ekushey Television Ltd. had already come into existence by the time the agreement was signed. After signing the agreement with the Government, Mr. A.S. Mahmud transferred the license to the Ekushey Television Ltd. for Tk. 200 crores. The writ petitioners alleged that Mr. A.S. Mahmud, being a private individual and not a commercial enterprise and not participating in the tender, could not in law, be granted license to install and operate a private TV channel. Therefore, the license agreement signed with Mr. A.S. Mahmud was malafide.
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Three persons challenged before the High Court Division in its writ jurisdiction, the licensing agreement dated 9.3.1999 signed by the Ministry of Information, the Ekushey Television Ltd. and Mr. A.S. Mahmud alleging it to be malafide and not authorized. The petitioners further claimed in the writ petition, that the license agreement was signed in accordance with the provision of section 4(1) of Telegraphy Act, 1885, and section 5 of Wireless and Telegraphy Act, 1933. Since no license was obtained from Ministry of Post and Telecommunications and no apparatus was imported by the ETV Ltd. after obtaining license and clearance from that Ministry, the license is illegal. The petitioners further claimed that under the co-site agreement signed between BTV and ETV Ltd., the ETV was given permission to use the towers, facilities and premises of BTV for a nominal rent. Lastly, by allowing ETV to set up its office inside the BTV complex at Rampura, the security of BTV, which is a key point installation, is exposed to threat. Thus the respondents, who are under a legal and constitutional obligation to protect national interest, have acted in breach of law and the policy formulated by the government and against the national interest.
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Upon hearing the parties, the High Court Division made the Rule absolute on the finding that the Evaluation Report was changed, by which the disqualified participant, ETV, was made qualified, which is a malafide exercise of power by the respondents. The whole process of preparing the report was not transparent and since the changing of the evaluation report was malafide all subsequent actions, taken on the basis of the changed report, were also malafide.
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Against the judgment of the High Court Division both the petitioners and the respondents moved before this Division petitions for Leave to Appeal, which were dismissed by the aforesaid judgment. Against which all of them have come on review before this Court.
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Mr. Rafique-ul-Huq, the learned Counsel for the Ekushey TV and its Managing Director, Mr. Farhad Mahmud, contends that the judgment of this Court is amenable to review as it has committed error of law apparent on the face of the record on various counts. They are as follows:-
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In referring to and relying upon the comment dated 16.02.2002 of the Director General of BTV sent to the Attorney General; in deciding purely a disputed question of fact on affidavit whether the Evaluation Report qualifying ETV is the first or the only evaluation report in the face of Annexure ‘5(a)’ and ‘5(b)'; in dismissing the leave petition mainly upon the view taken by the Court on the basis of the affidavit of the Chairman of the Evaluation Committee that the evaluation report was substituted at the behest of higher authority without taking into consideration contradictory statement made by the same Chairman in Annexures 5, 5(a) and 5(b) to the affidavit-in-opposition of the petitioners; in not considering that the official acts have the presumption of regularity under section 114(e) of the Evidence Act and no attempt was made to rebut the presumption attached to Annexures-5, 5(a) and 5(b); in relying upon the affidavit of the Chairman of the Evaluation Committee in finding lack of transparency in the administrative process; in admitting the affidavit of Mr. Anisur Rahman, the convenor of the technical committee, which is not admissible under the Evidence Act and the proviso to Rule 1 Order 19 of the Civil Procedure Code; in referring to and relying upon a letter of the Assistant Secretary of the Ministry of Information dated 13.02.2002 addressed to the learned Attorney General, during the pendency of the writ petition, which is in contradiction to the parawise comments of the then Secretary of the Ministry of Information; in holding that the E.T.V. was in existence when Mr. A.S. Mahmud, the Chairman of E.T.V. applied in his private capacity for license to operate a private TV channel; in giving locus standi to the petitioners and in holding that the whole licensing process was malafide.
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Dr. Kamal Hossain, the learned Counsel, appearing for the intervener petitioners, contends that since the judgment of this Court is directory in nature, in the context of the public interest litigation it has ample consequences. There is a growing jurisprudence, which should not only be considered by this Court but also adopted in its judgment by allowing the review petition. Otherwise, the impact on a whole range of matters will go unnoticed. In this connection he has referred to the remedial role of the Court, which requires a careful balancing of the respective interests involved. He further submits that the foreign investors, who have come and invested great amount of equity one year after the licence was given to ETV, will suffer immense financial loss. Since the signing of the licence agreement, third party rights, not only of the foreign investors, but also of the staff and employees of E.T.V. have accrued as they have a right to livelihood. Therefore, it imposes upon the Court a singular duty to play a balancing role between the divergent interests by allowing the review application.
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He has further contended that the Bangladesh Telecommunication Act 2002 will not apply in this case as the licence was given to ETV before this Act came into existence. Moreover, there is a regulatory body in the name and style of BOL, the highest body representing all the Ministries with the supervisory power and it should now be allowed to deal with the problem created by granting license to E.T.V. or the appropriate authority, the Ministry of Information and Broadcasting, should look into it, to find out whether there is any defect in the licence.
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Lastly, E.T.V. has become an institution of such values that it should not be killed at this stage but be protected to enhance the Constitution and the rule of law keeping in mind the right to freedom of speech, freedom of expression and freedom of media.
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Mr. Syed Isthiaq Ahmed, the learned Counsel, appearing for Mr. A.S. Mahmud, the Chairman of E.T.V., submits that the Court has committed error of law apparent in the face of the record in finding malafide in the licensing process of ETV only on suspicion and inference without any proof. He further submits that this Court on the facts of the case should play a remedial role to do complete justice under Articles 104 and 105 of the Constitution read together. Therefore, he urges that this Court should reconsider the matter and review its earlier decision.
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He then urges that as his client, Mr. A.S. Mahmud, was not involved in any irregularity committed in granting license to E.T.V., certain portion of me judgment which deals with his alleged role in obtaining license for ETV may be expunged.
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The learned Attorney General appearing for the government clarifies the position of the government and confines his argument to the contours set out by the counsels for the petitioners. He finds no error of law apparent on the face of the record in the judgment under review.
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On the other hand Mr. Abdur Razzaque, the learned Counsel appearing for the respondents vigorously opposed the review applications filed by the petitioners, arguing that no grounds for review has been made out and that in any event the judgment of this Court does not suffer from error.
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The above submissions lead us to the question whether under the circumstances a review of the judgment delivered by this Court on 29.8.02 is justified. The general principle is that in discharging the judicial function of the Court it has the duty of resolving issues of law properly brought before it and once it is done the finality is reached and once the finality is reached a judgment can be reviewed only on certain laid down principles.
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The wider issues raised in these review applications are the subject of profound and fully justified concerns to many people. However, the task before the Court is not only to weigh or evaluate or reflect those concerns and views but more to ascertain and apply the law of the land on review as it now stands and understood.
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A review lies only when the alleged error in the judgment is so evident that it can be established without going into elaborate arguments and the factual matrix of the case. It may be remembered that a review in counsel’s mentation cannot justify review of the verdict. No doubt the Court has constitutional power to review its decision but it does not undertake on the asking of the petitioners once conflicting claims have been settled by a decision of the Court. The cases are reviewed strictly within the boundaries laid down by innumerable judgments of the jurisprudence, which are highly coherent in its interpretation and application.
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There are certain general principles of review whose authority is universally acknowledged that ought not to be disregarded. The fundamental is that an error is necessary to be a ground for review but it must be one, which is apparent on the face of the record, and so obvious that keeping it on the record will be legally wrong. The contention that the Court has gone wrong in the application of law to the facts or the exposition of law is erroneous (unless it lays down a bad law) or that inference is drawn on appraisal and appreciation of evidence is erroneous does not constitute valid grounds for review.
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Bearing these principles in mind we now may proceed to examine the plethora of submissions made by the learned counsels of the petitioners in support of the review petitions to see whether a case for review is made out of them. However, at this point an observation is called for that the exponential tendency manifested by the manifold grounds taken in the review applications by the petitioners is retributive to the very purpose for which the review applications are made. It may be recalled here that the essence of this case is that specific legal wrong was done in performance of public duty by non-transparency and malafide in processing the evaluation report.
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It was contended by the learned Counsels, on behalf of the petitioners, that the preliminary requirement for finding malafide by a Court is that it must be specified in the judgment. But in the instant case there is neither any finding of specific guilt of anybody nor a specific allegation against anyone. Mere actions will not amount to be malafide unless some other factor, in accompaniment of the action, depicts of a bad motive. This plea is pressed at considerable length by the learned Counsels. The weakness of this argument is that there is absence of fairness and transparency in the process of preparing the evaluation report and that is, no doubt, malafide. Further to the two evaluation reports, both of which were of the same date and signed by the same persons, particulars of other malafide moves or actions have been brought out on record. This Court had ample proof that the license to run E.T.V. was obtained by playing foul which can never be approbated. If the licensing act was clothed with all the requisites of law, this Court, sitting as a Court of law, would have sustained the petitions for leave to appeal by the petitioners. In its judgment the Court has recited the undue means practiced and then concluded that the process adopted in granting license was infected with malafide.
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A case is decided on its factual matrix. When the facts materially vary, the law carefully shifts its focus. Therefore, the conspectus of facts on which the decision is founded is always critical. In a granted situation the conclusion remains impeccable. But if it can be shown that the situation differs from that which was taken for granted at the time of hearing of the appeal or the petitions for leave to appeal the decision in a review petition may be different. But no alternative situations were presented before us at the hearing of the review petitions. On the other hand the facts upon which our judgment in the petitions for leave to appeal rests, have remained undisputed throughout the different stages of the litigation and all the Courts, on the facts, found malafide in processing the evaluation report.
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It may be stated here that the learned counsels for the petitioners, in their review petitions, have advanced submissions, which went deep into the merits of the case. They also relied on the points raised by them in the leave petitions in this respect to show that the Court has committed error apparent on the face of the record. The elaborate arguments that have been advanced was done at the leave petitions but those have come to an end with the rejection of the leave petitions by the petitioners and now cannot be reopened in a review petition.
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The next point urged by the learned counsels for the petitioners is that this Court has committed gross violation of the principle of natural justice by taking into consideration the affidavit dated 4.3.02 of Mr. Anisur Rahman, the convener of the Technical committee. The court has committed error of law apparent on the face of the record in referring to and relying on the said affidavit when it is inadmissible under the preamble of the Evidence Act and the proviso to Rule 1 Order 19 of the Code of Civil Procedure, what the petitioners ignored is that under Article 104 of the Constitution, this Court derives plenary power to do ‘complete justice’ which cannot be restricted in any manner whatsoever excepting by what has been provided in the Constitution itself. The power to do complete justice is not restricted only in respect of facts coming up before it in the form of decision by the High Court Division. If this Court finds it necessary within the meaning of the expression of ‘complete justice’ it may, in view of the power conferred upon it under Article 104 of the Constitution, consider an affidavit and refer to the facts contained therein even though the High Court Division refrained from doing so under the law.
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Then again, while disposing of the writ petition, the High Court Division allowed the aforementioned affidavit, letter and commented and made them a part of the record.
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Further, the Affidavit of Mr. Anisur Rahman, referred to in the judgment, is not the portion on which the conclusion that the licensing process was not transparent or malafide was drawn. This was referred to in the judgment by way of observation of the Court to do complete justice after the conclusion was drawn and the Court gave its finding as to non transparency and malafide in the licensing process of ETV. Therefore, the reference as to inadmissibility of the affidavit by Mr. Anisur Rahman cannot be a ground for review. Same applies to the comment dated 16.2.02 by the Director, BTV, and the letter of the Assistant Secretary of the Ministry of Information dated 13.2.02 addressed to the Attorney General. These were referred to in the judgment only to bring out the abuse of power in its true perspective.
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Dr. Kamal Hossain introduces a new concept of ‘proportionality’ as a possible ground for judicial review since third party right has already accrued who is not stained by the guilt, which contaminated the original transaction. It is submitted that if this concept is taken into consideration, our judgment will have an important impact on our law and may open the door to areas, which were traditionally not conceived. According to him, the concept he is advocating is already recognized as a general principle of law and applied both by the European Court of Justice and the European Court of Human Rights. It aims at maintaining a proper balance between any adverse effect, which the Courts decision may have on the rights, liberties or interests of persons, and the purpose which the court pursues in its judgment. It involves the exercise of balancing relevant considerations like, the balancing test, the necessity test and the suitability test. This concept involves the Court to evaluate whether proportionate weight has been attached to one or other consideration relevant to the decision. As a ground for judicial review it is absolutely a new concept to our jurisprudence. And in accepting it this Court shall have to accord different weights to different ends or purposes and different means which cannot be allowed in a review.
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The remedial role of law is not to perpetuate the wrong but to remove the wrong, if any, even though in the process some may suffer damages. The rights acquired by third persons having no notice of the improper means by which the license for ETV was obtained is a question which this Court will approach with much circumspection. It shall have to appreciate that the different participants involved in a proceeding for judicial review may well attach importance to different aspects to suit their interest but the Courts overriding interest shall be more in safeguarding and retaining of public interest. What is required to be protected is the interest of the general public from abuse of power by the executive, the most eloquent aspect of this case. The nature of public interest litigation (called PIL hereinafter) is completely different from a traditional case which is adversarial in nature whereas PIL is intended to vindicate rights of the people. In such a case benefit will be derived by a large number of people in contrast to a few. PIL considers the interest of others and therefore, the Court in a public interest litigation acts as the guardian of all the people whereas in a private case the Court does not have such power. Therefore, in public interest litigation the Court will lean to protect the interest of the general public and the rule of law vis-a-vis the private interest. Where the rule of law comes into conflict with third party interest the rule of law will, of course, prevail.
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Dr. Kamal Hossain took us through the legal concept of alien Milieu. It enlightens us but it also reveals incongruity to the general principles of review of a case as laid down by our Courts. He cites cases of U.K. and submits that they will give an impression of the use of the principle. But the context of those cases is very different from the present case. These cases can be distinguished as the damages in those cases were caused by actions of statutory authorities and the concerned Courts were not reviewing their own judgment; whereas, we are here on a completely different terrain. We are dealing with applications for review of our own judgment.
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In view of the above it is difficult to hold that in the judgment under review there is an error apparent on the face of the record. The review petitions, therefore, must fail.
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All the review petitions are dismissed.
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The Counsel for the Ekushey T.V. Ltd. has submitted that it has filed an application with regard to T.V. Licence with Bangladesh Telecommunication Regulatory Commission established under the Bangladesh Telecommunication Act, 2001. Our judgment will have no bearing in considering the application by Ekushey for licence by the said Commission which is free to decide in accordance with law.