Writ jurisdiction in case of breach of contract–– Case of Superintendent Engineer, RHD Sylhet and others v. Md. Eunus and Brothers (Pvt.) Ltd. reported in 31 BLD (AD) 1 the decision of this Division reported in 9 BLC (AD)1, noted earlier, was considered and six conditions were formulated, which would permit entertaining an application within the writ jurisdiction in case of breach of contract. These were as follows:
(a) the contract is entered into by the Government in the capacity as sovereign;
(b) where contractual obligation sought to be enforced in writ jurisdiction arises out of statutory duty or sovereign obligation or public function of a public authority;
(c) where contract is entered into in exercise of an enacting power conferred by a statute that by itself does not render the contract a statutory contract, but ‘if entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory’;
(d) where a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions and the contract so entered by the statutory power then merely because one of the parties to the contract is statutory or public body such contract is not a statutory contract;
(e) when contract is entered into by a public authority invested with the statutory power, in case of breach thereof relief in writ jurisdiction may be sought as against such on the plea that the contract was entered into by the public authority invested with a statutory power;
(f) where the contract has been entered into in exercise of statutory power by a statutory authority in terms of the statutory provisions and then breach thereof gives right to the aggrieved party to invoke writ jurisdiction because the relief sought is against breach of statutory obligation.” ...Government of Bangladesh =VS= M/S. AMS Faraj Construction, [6 LM (AD) 23] ....View Full Judgment

In absence of any specific provision in the Agreement/policy guideline or under any law, the price cannot be changed by giving retrospective effect–– The Government/the Ministry cannot enhance the price of the goods violating the terms of the contract executed between BPC, the Ministry and the Writ Petitioner. However, according to the Agreement there is no legal bar for reformulating the price of petroleum products by the Government but in absence of any specific provision in the Agreement/policy guideline or under any law, the price cannot be changed by giving retrospective effect. It is to be noted that it is not disputed that the Government previously by Gazette Notification dated 10.01.2013 re-fixed the price of the petroleum products and the said Gazette Notification was given effect on the next date from the date of publication of the Gazette Notification.
Thus, considering the totality of the materials on record, we are of the view that the High Court Division legally decided that the price of petroleum products cannot be fixed/re-fixed by giving retrospective effect. ...Bangladesh Petroleum Corporation =VS= Petromax Refinery Ltd., [9 LM (AD) 146] ....View Full Judgment

Agreement for sale of Property–– The judgment and decree passed by the trial Court is restored with modification of the amount of compensation which will now be Tk. two crores. The respondent is directed to execute and register the sale deed in question on receipt of this amount from the appellant within three months from date, failing which, the appellant will be at liberty to get the kabala deed executed and registered through Court on deposit of the said amount in Court. If the Purchaser fails to pay the amount ordered by us within the time allowed by us, then the agreement for sale in question shall stand cancelled and the Vendor will be entitled to regain vacant possession of the suit property within one month thereafter. .....Mahua Khair =VS= Amena Begum Ali Ispahani, [3 LM (AD) 246] ....View Full Judgment

There was no clause in the agreement–– We find from the judgment of the trial Court that the learned Judge noted that there was no clause in the agreement that it would be cancelled for non-performance of any of the terms and that time was not of the essence of the contract and cancelling the agreement was illegal. The suit for specific performance of contract was barred by limitation was therefore, not accepted. Purchaser did not perform her part in obtaining Income Tax Clearance Certificate. .....Mahua Khair =VS= Amena Begum Ali Ispahani, [3 LM (AD) 246] ....View Full Judgment

Black-listed for failure to perform in contract–– There was no provision for the company to claim damages or compensation for breach of contract. Equally there was no provision for terminating or rescinding the contract for any reason other than breach of the contract. From the facts and circumstances before us we find that the instant contract was rescinded due to the fact that the company had been black-listed for failure to perform in another contract. There is no term in the present contract that it (the contract) can be rescinded or terminated for the reason that the company is/may be black-listed for its non-performance in respect of another contract. Hence, we are of the view that the rescission in the way and for the reason that it was done, was not lawful, such action being beyond the terms and conditions of the contract. The appellant company is entitled to receive the full contractual amount of Tk.85,98,775.50/- with deduction only of Tk. 22,02,856/-,which was received as part bills. Hence, the respondent is directed to pay Tk. 63,95,919.50 to the appellant company. The appellant company shall be reimbursed by the respondent the actual amount of the earnest money and security deposit, if any, which they claim to have paid at the time of entering into the contract. .....A. Latif & Co. Ltd =VS= Executive Engineer, LGED Rangpur, [3 LM (AD) 26] ....View Full Judgment

Consultancy fees–– Consultancy fees for the second power plant, the High Court Division concluded that this contract was signed long after the consultancy agreement and was not resultant from the said consultancy. We also find that the plaintiff admitted in his cross-examination that the second contract was signed six years after 03.05.1998. We, therefore, do not find any illegality in the reasoning given by the High Court Division that the plaintiff is not entitled to receive any consultancy fees for the second contract. .....Muhammad Iqbal Hussain =VS= Westmont Power (BD) Ltd., [3 LM (AD) 422] ....View Full Judgment

Contract–– The writ-petitioner challenged the Department due to the fact that their bid was not successful. Before this Division it was argued that the writ petition involved a commercial contract and hence, the High Court Division was wrong in holding the writ petition maintainable. Upon referring to the six conditions noted above, it was held that the contract does not fulfill any of the requirements to make the same statutory contract or contract entered into by the Government in the capacity as sovereign. We find that the contract in question having been entered into by the official liquidator was not a sovereign contract and hence it was not amenable to the writ jurisdiction. The appeal is allowed and the judgement and order of the High Court Division is set aside. ...Government of Bangladesh =VS= M/S. AMS Faraj Construction, [6 LM (AD) 23] ....View Full Judgment

Contract–
The writ-petitioner challenged the Department due to the fact that their bid was not successful. Before this Division it was argued that the writ petition involved a commercial contract and hence, the High Court Division was wrong in holding the writ petition maintainable. Upon referring to the six conditions noted above, it was held that the contract does not fulfill any of the requirements to make the same statutory contract or contract entered into by the Government in the capacity as sovereign. We find that the contract in question having been entered into by the official liquidator was not a sovereign contract and hence it was not amenable to the writ jurisdiction. The appeal is allowed and the judgement and order of the High Court Division is set aside. ...Government of Bangladesh =VS= M/S. AMS Faraj Construction, (Civil), 2019 (1) [6 LM (AD) 23] ....View Full Judgment

Consultancy fees–
Consultancy fees for the second power plant, the High Court Division concluded that this contract was signed long after the consultancy agreement and was not resultant from the said consultancy. We also find that the plaintiff admitted in his cross-examination that the second contract was signed six years after 03.05.1998. We, therefore, do not find any illegality in the reasoning given by the High Court Division that the plaintiff is not entitled to receive any consultancy fees for the second contract. .....Muhammad Iqbal Hussain=VS=Westmont Power (BD) Ltd., (Civil), 2017 (2)– [3 LM (AD) 422] ....View Full Judgment