Ekushey Television & anr. Vs. Dr.

Chowdhury
Mahmood Hasan & ors. 2003, 32 CLC !D".
MONDAY, 18 JUNE 2007 22:40
Supreme Court
Appellate Division
(Civil)
Present:
Mainur Reza Chowdhury CJ
Md Ruhul Amin J
Md Fazlul arim J
M !asan J
Syed JR Mudassir !usain J
A"u Sayeed Ahammed J
Md# Fazlul !a$ue J
Ekushey Television and another Petitioner
Vs.
Dr. Chowdhury Mahmood Hasan and ors .... Respondent
Jud%ment
Auust !"# !$$!#
&he Constitution o' (an%ladesh) *+,- Arti.les */0 1 */2

&he Code o' Civil Pro.edure) *+/3 (4 o' *+/3) 5rder 67488 rule 8

The nature o% pu&li' interest litiation ('alled P)* hereina%ter+ is 'ompletely di%%erent %rom a
traditional 'ase whi'h is adversarial in nature whereas P)* is intended to vindi'ate rihts o% the
people. )n su'h a 'ase &ene%it will &e derived &y a lare num&er o% people in 'ontrast to a %ew# P)*
'onsiders the interest o% others and there%ore# in a pu&li' interest litiation the 'ourt will lean to
prote't the interest o% the eneral pu&li' and the rule o% law vis,-,vis the private interest. .here
the rule o% law 'omes in 'on%li't with third party interest the rule o% law# will# o% 'ourse# prevail. )n
the impuned /udement there is no error apparent on the %a'e o% the re'ord..(01 2
03+
7awyers 8nvolved:
Rafique-ul-Huq, Senior Advocate, M Moniruzzaman Khan, Advocate with him instructed by AKM
Shahidul Huq, Advocate-on-Recordor the !etitioners "#n $ivil Review !etition %o& '( of )**)+
,r& Kamal Hossain, Senior Advocate, instructed by Md& %awab Ali Advocate-on-Recordor the
!etitioners "#n $ivil Review !etition %o& '- of )**)+
Syed #shtiaq Ahmed, Senior Advocate, instructed by AKM Shahidul Huq, Advocate-on-Recordor
the !etitioners "#n $ivil Review !etition %o& -* of )**)+&
Abdur Razzaq, Senior Advocate, instructed by Md Aftab Hossain& Advocate-on-Recordor
Res.ondent %o& / "#n $ivil Review !etition %o& '( of )**)+&
A Hasan Ariff Attorney-0eneral, ida M Kamal, Additional Attorney-0eneral, Adilur Rahman,
,e.uty Attorney-0eneral with him+ instructed by Md Ataur Rahman Khan, Advocate-on-Record
or Res.ondent %os& 1-- "#n all the cases+&
%ot Re.resentedRes.ondent %os& ), 2, ( 3 /* "#n $ivil Review !etition %o& '( of )**)+
%ot Re.resented Res.ondent %os& /-2, (-//& "#n $ivil Review !etition %o& '- of )**)+&
%ot Re.resentedRes.ondent %os& /-2, (-//& "#n $ivil Review !etition %o& -* of )**)+&
Civil Review Petition 9os# ,+) ,3 1 3/ o' -//-
(4rom the /udment and order dated !,5,!$$ &y the Appellate Division in Civil Petition 6os. 7$1#
78$ and 385 o% !$$!
Jud%ment
M !asan J., These review petitions are dire'ted aainst the /udment and order
dated !,5,!$$! passed &y this 'ourt in Petition %or *eave to Appeal 6os. 7$1# 78$# 783# 785 and
303 o% !$$! dismissin them.
!. The %a'ts o% the 'ase and materials relatin thereto are already dis'ussed in the /udment
delivered &y this 'ourt. 9ut the relevant %a'ts are to &e &rie%ly stated %or a proper appre'iation o%
the rounds ured &y the petitioners %or review o% the /udment.
0. )n 8"":# Ministry o% )n%ormation invited tenders# &y pu&lishin a noti'e dated 3,7,8"":# %rom
lo'al and %orein %irms individually or under /oint venture to install and operate a television
'hannel under private ownership. The tenders o%
seventeen enterprises who parti'ipated were opened on !7,3,8"":.
1. The proposals o% the parti'ipants in the tender were evaluated &y a te'hni'al 'ommittee and
out o% seventeen parti'ipants# the o%%er o% Minard (9anladesh+ *td. was de'lared 'ommer'ially
unsu''ess%ul. The rest were divided into three 'ateories.
7. The %irst 'ateory in'luded three 'ompanies who were %ound to &e satis%a'tory. ;e'ond
'ateory in'luded three parti'ipants whose tender 'ould &e 'onsidered as a se'ond pre%eren'e.
The te'hni'al 'ommittee %ound the tender o% the other ten parti'ipants una''epta&le. )n the third
'ateory Ekushey Television was pla'ed at serial 6o. 7.
3. A%ter su&mission o% the evaluation id dated ",5,":# the te'hni'al 'ommittee 'ame under heavy
pressure %rom an interested roup. As a result o% whi'h# the te'hni'al 'ommittee 'haned the
evaluation report and Ekushey Television# whi'h was in the re/e'ted list# in the earlier and oriinal
evaluation report# was pla'ed in the list o% the parti'ipants %ound satis%a'tory. This evaluation
report was also dated ",5,": and was sined &y the same te'hni'al 'ommittee mem&ers.
5. 9y a letter dated 83 4e&ruary# 8"""# to the Ministry o% )n%ormation# the Ministry o% 4inan'e set
out a num&er o% 'onditions %or rantin li'en'e to Ekushey Television. <ne o% the 'onditions that#
i% the private 'hannel transmitted its proramme simultaneously with the 9TV the private 'hannel
would pay Taka 8!$$ per hour and when no proramme was transmitted &y 9TV the hourly
'hare would &e Taka 8:$$ (Anne=ure,C o% the writ petition+.
:. 9ut upon re'eivin representation dated !1 4e&ruary# 8"""# %rom Mr. A; Mahmud# Chairman#
ETV# (Anne=ure,D+# the Ministry o% 4inan'e &y a &a'k,dated memo dated 83,!,8""" (Anne=ure,E+
deleted pararaph, >Cha> o% oriinal memo (Anne=ure,>C+ o% the same date issued &y the Ministry
o% 4inan'e# &y whi'h ETV was e=empted %rom payin hourly 'hare o% Taka 8!$$ or Taka 8:$$
thus deprivin the ?overnment e='he@uer %rom hue amount money every year.
". The %urther 'ase is that thouh Mr. A; Mahmud did not parti'ipate in the tender on &ehal% o%
ETV# yet the areement was sined &etween the ?overnment o% 9anladesh and Mr. A;
Mahmud# in violation o% Tender noti'e. A 'ompany under the name and style o% Ekushey
Television *td had already 'ome into e=isten'e &y the time the areement was sined. A%ter
sinin the areement with the ?overnment# Mr. A; Mahmud trans%erred the li'en'e to the
Ekushey Television *td. %or Taka !$$ 'rore. The writ petitioners alleed that Mr. A; Mahmud# &ein
a private individual and not a 'ommer'ial enterprise and not parti'ipatin in the tender# 'ould not
in law# &e ranted li'en'e to install and operate a private TV 'hannel. There%ore# the li'en'e
areement sined with Mr. A; Mahmud was malafide&
8$. Three persons 'hallened &e%ore the Hih Court Division in its writ /urisdi'tion# the li'ensin
areement dated ",0,8""" sined &y the Ministry o% in%ormation# the Ekushey Television *td. and
Mr. A; Mahmud allein it to &e malafide and not authorised. The petitioners %urther 'laimed in
the writ petition# that the li'en'e areement was sined in a''ordan'e with the provision o%
se'tion 1(8+ o% Teleraphy A't# 8::7 and se'tion 7 o% .ireless and Teleraphy A't# 8"00. ;in'e
no was o&tained %rom Ministry o% Post and Tele'ommuni'ations and no apparatus was imported &y
the ETV *td. a%ter o&tainin li'en'e and 'learan'e %rom that Ministry# the li'en'e is illeal. The
petitioners %urther 'laimed that under the 'o,site areement sined &etween 9TV and ETV *td.#
the ETV was iven permission to use the towers# %a'ilities and premises o% 9TV %or a nominal rent.
*astly# &y allowin ETV to set up its o%%i'e inside the 9TV 'omple= at Rampura# the se'urity o% 9TV#
whi'h is a key point installation# is e=posed to threat. Thus the respondents# who are under a
leal and 'onstitutional o&liation to prote't national interest# have a'ted in &rea'h o% law and the
poli'y %ormulated &y the overnment and aainst the,national interest.
88. Apon hearin the parties# the Hih Court Division made the Rule a&solute on the %indin that
the Evaluation Report was 'haned# &y whi'h the dis@uali%ied parti'ipant# ETV# was made @uali%ied#
whi'h is a malafide e=er'ise o% power &y the respondents. The whole pro'ess o% preparin the
report was not transparent and sin'e the 'hanin o% the evaluation report was malafide all
su&se@uent a'tions# taken on the &asis o% the 'haned report# were also malafide.
8!. Aainst the /udment o% the Hih Court Division &oth the petitioners and the respondents
moved &e%ore this Division petitions %or leave to appeal# whi'h were dismissed &y the a%oresaid
Budment. Aainst whi'h all o% them have 'ome on review &e%ore this 'ourt.
80. Mr. Ra%i@ue,ul,Hu@# the learned Counsel %or the Ekushey TV and its Manain Dire'tor# Mr.
4arhad Mahmud# 'ontends that the /udment o% this 'ourt is amena&le to review as it has
'ommitted error o% law apparent on the %a'e o% the re'ord on various 'ounts. They are as
%ollowsC,
81. )n re%errin to and relyin upon the 'omment dated 83,!,!$$! o% the Dire'tor ?eneral o% 9TV
sent to the Attorney,?eneralD in de'idin purely a disputed @uestion o% %a't on a%%idavit whether
the Evaluation Report @uali%yin ETV is the %irst or the only evaluation report in the %a'e o%
Anne=ure >7(a+> and >7(&+>D in dismissin the leave petition mainly upon the view taken &y the
'ourt on the &asis o% the a%%idavit o% the Chairman o% the Evaluation Committee that the evaluation
report was su&stituted at the &ehest o% hiher authority without takin into 'onsideration
'ontradi'tory statement made &y the same Chairman in Anne=ures 7# 7(a+ and 7(&+ to the
a%%idavit,in,opposition o% the petitionersD in not 'onsiderin that the o%%i'ial a'ts have the
presumption o% reularity under se'tion 881(e+ o% the Eviden'e A't and no attempt was made to
re&ut the presumption atta'hed to Anne=ures,7# 7(a+ and 7(&+D in relyin upon the a%%idavit o% the
Chairman o% the Evaluation Committee in %indin la'k o% transparen'y in the administrative
pro'essD in admittin the a%%idavit o% Mr. Anisur Rahman# the 'onvener o% the te'hni'al
'ommittee# whi'h is not admissi&le under the Eviden'e A't and the proviso o% rule 8 <rder E)E o%
the Civil Pro'edure CodeD in re%errin to and relyin upon a letter o% the Assistant ;e'retary o% the
Ministry o% )n%ormation dated 80,!,!$$! addressed to the learned Attorney,?eneral# durin
the penden'y o% the writ petition# whi'h is in 'ontradi'tion to the parawise 'omments o% the then
;e'retary o% the Ministry o% )n%ormationD in holdin that the ETV was in e=isten'e when Mr. A;
Mahmud# the Chairman o% ETV applied in his private 'apa'ity %or li'en'e to operate a private TV
'hannelD in ivin locus standi to the petitioners and in holdin that the whole
li'ensin pro'ess was malafide.
87. Dr. Famal Hossain# the learned Counsel# appearin %or the intervener petitioners# 'ontends
that sin'e the /udment o% this 'ourt is dire'tory in nature# in the 'onte=t o% the pu&li' interest
litiation it has ample 'onse@uen'es. There is a rowin /urispruden'e# whi'h should not only &e
'onsidered &y this 'ourt &ut also adopted in its /udment &y allowin the review petition.
<therwise# the impa't on a whole rane o% matters will o unnoti'ed. )n this 'onne'tion he has
re%erred to the remedial role o% the 'ourt# whi'h re@uires a 'are%ul &alan'in o% the respe'tive
interests involved. He %urther su&mits that the %orein investors# who have 'ome and invested
reat amount o% e@uity one year a%ter the li'en'e was iven to ETV# will su%%er immense %inan'ial
loss. ;in'e the sinin o% the li'en'e areement# third party rihts# not only o% the %orein
investors# &ut also o% the sta%% and employees# o% ETV have a''rued as they have a riht to
livelihood. There%ore# it imposes upon the 'ourt a sinular duty to play a &alan'in role &etween
the, diverent interests &y allowin the review appli'ation.
83. He has %urther 'ontended that the 9anladesh Tele'ommuni'ation A't !$$! will not apply in
this 'ase as the li'en'e was iven to ETV &e%ore this A't 'ame into e=isten'e. Moreover# there is a
reulatory &ody in the name and style o% 9<*# the hihest &ody representin all the Ministries
.ith the supervisory power and it should now &e allowed to deal with the pro&lem 'reated &y
rantin li'en'e to ETV or the appropriate authority# the Ministry o% )n%ormation and 9road'astin#
should look into it# to %ind out whether there is any de%e't in the li'en'e.
85. *astly# ETV has &e'ome an institution o% su'h values that it should not &e killed at this stae
&ut &e prote'ted to enhan'e the Constitution and the rule o% law keepin in mind the riht to
%reedom o% spee'h# %reedom o% e=pression and %reedom o% media.
8:. Mr. ;yed )stia@ Ahmed# the learned Counsel# appearin %or Mr. A; Mahmud# the Chairman o%
ETV# su&mits that the 'ourt has 'ommitted error o% law apparent in the %a'e o% the re'ord in
%indinmalafide in the li'ensin pro'ess o% ETV only on suspi'ion and in%eren'e without any proo%.
He %urther su&mits that this 'ourt on the %a'ts o% the 'ase should play a remedial role to do
'omplete /usti'e under Arti'les 8$1 and 8$7 o% the Constitution read toether. There%ore# he ures
that this 'ourt should re'onsider the matter and review its earlier de'ision.
8". He then ures that as his 'lient# Mahmud# was not involved in any irreularity 'ommitted in
rantin li'en'e to ETV# 'ertain portion o% the /udment whi'h deals with hisD role in o&tainin
li'en'e %or ETV may &e e=puned.
!$. The learned Attorney,?eneral appearin %or the overnment 'lari%ies the position overnment
and 'on%ines his arument to the 'ontours set out &y the 'ounsels %or the petitioners. He %inds no
error o% law apparent on the %a'e d re'ord in the /udment under review.
!8. <n the other hand Mr. A&dur RaGGa@ue# the learned Counsel appearin %or the respondents
viorously opposed the review appli'ations %iled &y the petitioners# aruin that no rounds %or
review has &een made out and that in any event the /udment o% this 'ourt does not su%%er %rom
error.
!!. The a&ove su&missions leads us to @uestion whether under the 'ir'umstan'es a review o% the
/udment delivered &y this 'ourt on !",:,$! is /usti%ied. The eneral prin'iple is that in
dis'harin the /udi'ial %un'tion o% the 'ourt it has the duty o% resolvin issues o% law properly
&rouht &e%ore it and on'e it is done the %inality is rea'hed and on'e the %inality is rea'hed a
/udement 'an &e reviewed only on 'ertain laid m prin'iples.
!0. The wider issues raised in these review appli'ations are the su&/e't o% pro%ound and %ully
/usti%ied 'on'erns to many people. However# task &e%ore the 'ourt is not only to weih or evaluate
or re%le't those 'on'erns and views &ut more to as'ertain and apply the law o% the land on review
as it now stands understood.
!1. A review# lies only when the alleed error in the /udement is so evident that it 'an &e
esta&lished without oin into ela&orate aruments and the %inal matri= o% the 'ase. )t may &e
remem&ered that a review in 'ounsel>s mentation 'an not /usti%y review o% the verdi't. 6o dou&t
the 'ourt has 'onstitutional power to review its de'ision &ut it does not undertake on the askin o%
the petitioners on'e 'on%li'tin 'laims have &een settled &y a de'ision o% the 'ourt. The 'ases are
reviewed stri'tly within the &oundaries laid down &y innumera&le /udments o% the /urispruden'e#
whi'h are hihly 'oherent in its interpretation and appli'ation.
!7. There are 'ertain eneral prin'iples o% review whose authority is universally a'knowlede that
ouht not to &e disrearded. The %undamental is that an error is ne'essary to &e a round %or
review &ut it must &e one# whi'h is apparent on the %a'e o% the re'ord# and so o&vious that
keepin it on the re'ord will &e leally wron. The 'ontention that the 'ourt has one wron in the
appli'ation o% law to the %a'ts or the e=position o% law to the %a'ts or the e=position o% law is
erroneous (unless it lays down a &ad law+ or that in%eren'e is drawn on appraisal and appre'iation
o% eviden'e is erroneous does not 'onstitute valid rounds %or review.
!3. 9earin these prin'iples in mind we now may pro'eed to e=amine the plethora o% su&missions
made &y the learned Counsels o% the petitioners in support o% the review petitions to see whether
a 'ase %or review is made out o% them. However# at this point o%
o&servation is 'alled %or that the tenden'y mani%ested &y the mani%old rounds taken in the
review appli'ations &y the petitioners is retri&utive to the very purpose %or whi'h the review
appli'ations are made. )t may &e re'alled here that the essen'e o% this 'ase is that spe'i%i' leal
wron was done in per%orman'e o% pu&li' duty &y non,transparen'y and malafide in pro'essin the
evaluation report.
!5. )t was 'ontended &y the learned Counsels# on &ehal% o% the petitioners# that the preliminary
re@uirement %or %indin malafide &y a 'ourt is that it must &e spe'i%ied in the /udment. 9ut in the
instant 'ase there is neither any %indin o% spe'i%i' uilt o% any&ody nor a spe'i%i' alleation
aainst anyone. Mere a'tions will not amount to &e malafide unless some other %a'tor# in
a''ompaniment o% the a'tion# depi'ts o% a &ad motive. ;imilarly# mere suspi'ion and in%eren'es
'annot take pla'e o% proo%. There must &e de%inite eviden'e o% &ias to neate an a'tion
apparently bonafide. This plea is pressed at 'onsidera&le lenth &y the learned 'ounsels. The
weakness o% this arument is that there is a&sen'e o% %airness and transparen'y in the pro'ess o%
preparin the evaluation report and that is# no dou&t# malafide. 4urther to the two evaluation
reports# &oth o% whi'h were o% the same date and sined &y the same persons# parti'ulars o%
other malafide moves or a'tions have &een &rouht out on re'ord. This 'ourt had ample proo% that
the li'en'e to run ETV was o&tained &y playin %oul whi'h 'an never &e appro&ated. )% the
li'ensin a't was 'lothed with all the re@uisites o% law# this 'ourt# sittin as a 'ourt o% law# would
have sustained the petitions %or leave to appeal &y the petitioners. )n its /udment the 'ourt has
re'ited the undue means pra'ti'ed and then 'on'luded that the pro'ess adopted in rantin
li'en'e was in%e'ted with malafide.
!:. A 'ase is de'ided on its %a'tual matri=. .hen the %a'ts materially vary# the law 'are%ully shi%ts
its %o'us. There%ore# the 'onspe'tus o% %a'ts on whi'h the de'ision is %ounded is always 'riti'al. )n
a ranted situation the 'on'lusion remains impe''a&le. 9ut i% it 'an &e shown that the situation
di%%ers %rom that whi'h was taken %or ranted at the time o% hearin o% the appeal or the petitions
%or leave to appeal the de'ision in a review petition may &e di%%erent. 9ut no alternative situations
were presented &e%ore us at the hearin o% the review petitions. <n the other hand# the %a'ts upon
whi'h our /udment in the petitions %or leave to appeal rests# have remained undisputed
throuhout the di%%erent staes o% the litiation and all the 'ourts# on the %a'ts# %ound malafide in
pro'essin the evaluation report.
!". )t may &e stated here that the learned 'ounsels %or the petitioners# in their review petitions#
have advan'ed su&missions# whi'h went deep into the merits o% the 'ase. They also relied on the
points raised &y them in the leave petitions in this respe't to show that the 'ourt has 'ommitted
error apparent on the %a'e o% the re'ord. The ela&orate aruments that have &een advan'ed was
done at the leave petitions &ut those have 'ome to an end with the re/e'tion o% the leave petitions
&y the petitioners and now 'annot &e reopened in a review petition.
0$. The ne=t point ured &y the learned 'ounsels %or the petitioners is that this 'ourt has
'ommitted ross violation o% the prin'iple o% natural /usti'e &y takin into 'onsideration the
a%%idavit dated 1,0,$!o% Mr. Anisur Rahman# the 'onvener o% the Te'hni'al 'ommittee. The 'ourt
has 'ommitted error o% law apparent on the %a'e o% the re'ord in re%errin to and relyin on the
said a%%idavit when it is inadmissi&le under the pream&le o% the Eviden'e A't and the proviso to
rule 8 <rder E)E o% the Code o% Civil Pro'edure. .hat the petitioners inored is that under Arti'le
8$1 o% the Constitution# this 'ourt derives plenary power to do >'omplete /usti'e>#
whi'h 'annot &e restri'ted in any manner whatsoever e='eptin &y what has &een
provided in the 'onstitution itsel%. The power to do 'omplete /usti'e is not restri'ted only in
respe't o% %a'ts 'omin up &e%ore it in the %orm o% de'ision &y the Hih Court Division. )% this 'ourt
%inds it ne'essary within the meanin o% the e=pression o% >'omplete /usti'e> it may# in view o% the
power 'on%erred upon it under Arti'le 8$1 o% the Constitution# 'onsider an a%%idavit and re%er to
the %a'ts 'ontained therein even thouh the Hih Court Division re%rained %rom doin so under the
law.
08. Then aain# while disposin o% the writ petition# the Hih Court Division allowed the
a%orementioned a%%idavit# letter and 'omment and made them a part o% the re'ord.
0!. 4urther# the A%%idavit o% Mr. Anisur Rahman# re%erred to in the /udment# is not the portion
on whi'h the 'on'lusion that the li'ensin pro'ess was not transparent or malafide was drawn.
This was re%erred to in the /udment &y way o% o&servation o% the 'ourt to do 'omplete /usti'e
a%ter the 'on'lusion was drawn and the 'ourt ave its %indin as to non transparen'y
and malafide in the li'ensin pro'ess o% ETV. There%ore# the re%eren'e as to inadmissi&ility o% the
a%%idavit &y Mr. Anisur Rahman 'annot &e a round %or review. ;ame applies to the 'omment
dated 83,!,$! &y the Dire'tor# 9TV# and the letter o% the Assistant ;e'retary o% the Ministry o%
)n%ormation dated 80,!,$! addressed to the Attorney,?eneral. These re%erred to in the /udment
only to &rin o a&use o% power in its true perspe'tive.
00. Dr. Famal Hossain introdu'es a 'on'ept o% >proportionality> as a possi&le round %or /udi'ial
review sin'e third party riht has already a''rued who is not stained &y the uilt# whi'h
'ontaminated the oriinal transa'tion. )t is su&mitted that i% this 'on'ept is taken into
'onsideration# our /udment will have an important impa't on our law and may open the door to
areas# whi'h were traditionally not 'on'eived. A''ordin to him# the 'on'ept he is advo'atin# is
already re'onised as a eneral prin'iple o% law and applied &oth &y the European Court o% Busti'e
and European Court o% Human Rihts. )t aims at maintainin a proper &alan'e &etween any
adverse e%%e't# whi'h the 'ourts de'ision may have on the rihts# li&erties or interests o% persons#
and the purpose whi'h the 'ourt pursues in its /udment. )t involves the e=er'ise o% &alan'in
relevant 'onsiderations like# the &alan'in test# the ne'essity test and the suita&ility test. This
'on'ept involves the 'ourt to evaluate whether proportionate weiht has &een atta'hed to one or
other 'onsideration relevant to the de'ision. As a round %or /udi'ial review it is a&solutely a new
'on'ept to /urispruden'e. And in a''eptin it this 'ourt shall have to a''ord di%%erent weihts to
di%%erent ends or purposes and di%%erent means whi'h 'annot &e allowed in a review.
01. The remedial role o% law is not to perpetuate the wron &ut to remove the wron any# even
thouh in the pro'ess some may su%%er damaes. The rihts a'@uired &y third persons havin no
noti'e o% the improper means &y whi'h the li'en'e %or ETV was o&tained is a @uestion
whi'h this 'ourt will approa'h with mu'h 'ir'umspe'tion. )t shall have to appre'iate that
the di%%erent parti'ipants involved in a pro'eedin %or /udi'ial review may well atta'h importan'e
to di%%erent aspe'ts to suit their interest &ut the 'ourt>s# overridin interest shall &e more in
sa%euardin and retainin o% pu&li' interest. .hat is re@uired to &e prote'ted is the interest o%
the eneral pu&li' %rom a&use o% power &y the e=e'utive# the most elo@uent aspe't o% this 'ase.
The nature o% pu&li' interest litiation ('alled P)* hereina%ter+ is 'ompletely di%%erent %rom a
traditional 'ase whi'h is adversarial in nature whereas P)* is intended to vindi'ate rihts o% the
people. )n su'h a 'ase &ene%it will &e derived &y a lare num&er o% people in 'ontrast to a %ew. P)*
'onsiders the interest o% others and there%ore# the 'ourt in pu&li' interest litiation a'ts as the
uardian o% all the people whereas in a private 'ase the 'ourt does not have su'h power.
There%ore# in pu&li' interest litiation the 'ourt will lean to prote't the interest o% the eneral
pu&li' and the rule o% law vis-a-vis the private interest. .here the rule o% law 'omes into 'on%li't
with third party interest the rule o% law will# o% 'ourse# prevail.
07. Dr. Famal Hossain took us throuh the leal 'on'ept o% alien Milieu. )t enlihtens us &ut it also
reveals in'onruity to the eneral prin'iples o% review o% a 'ase as laid down &y our 'ourts. He
'ites 'ases o% AF and su&mits that they will ive an impression o% the use o% the prin'iple. 9ut the
'onte=t o% those 'ases is very di%%erent %rom the present 'ase. These 'ases 'an &e distinuished
as the damaes in those 'ases were 'aused &y a'tions o% statutory authorities and the 'on'erned
'ourts were not reviewin their own /udementD whereas we are here on a 'ompletely di%%erent
terrain. .e are dealin with appli'ations %or review o% our own /udement.
03. )n view o% the a&ove it is di%%i'ult to hold that in the /udment under review there is an error
apparent on the %a'e o% the re'ord. The review petitions# there%ore# must %ail.
05. All the review petitions are dismissed.
0:. The Counsel %or the Ekushey TV *td. has su&mitted that it has %iled an appli'ation with reard
to the TV *i'en'e with 9anladesh Tele'ommuni'ation Reulatory Commission esta&lished under
the 9anladesh Tele'ommuni'ation A't# !$$!.
<ur /udment will have no &earin in 'onsiderin the appli'ation &y Ekushey %or li'en'e &y the
said Commission whi'h is %ree to de'ide in a''ordan'e with law.
Ed.