Chittagong City Corporation Vs. Executive Engineer, Public Works Dept, Chittagong, 2008

 

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Abdul Matin J

 The Chittagong City Corporation, City Corporation Bhaban, Anderkilla, Police Station-Kotwali, District-Chittagong and other…………..Petitioners

Vs.

The Executive Engineer, Public Works Department (PWD) Public Works Division No. IV Agrabad, Chittagong and others………………….Respondents

 Judgment

December 1, 2008.

Lawyers Involved:

A.K.M. Shahidul Huq, Advocate-on-Record-For the Petitioners.

Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 1272 of 2007.

(From the judgment and order dated 13.03.2007 passed by the High Court Division in Writ Petition No. 3978 of 2003.)

Judgment

                  Md. Abdul Matin J.- This petition for leave to appeal is directed against the judgment and order dated 13.03.2007 passed by the High Court Division in Writ Petition No.3978 of 2003 discharging the Rule directing the respondent No.1 imple­ment the impugned order and remove all the unauthorised construction from the said premises within receipt of the judg­ment.

2. The facts, in short, are that the petition­er filed Writ Petition No. 3978 of 2003 stating that the Chittagong City Corporation is a creation of statute having its own Rules and Regulation and that the petitioners corporation usually undertakes projects for the developments of its local area, running Hospitals, Educational Institutions, Markets, Roads etc. to facili­tate the needs of people of its area.

3. The Public Works Department of the Government considering the necessity and expediency for the establishment of the Shishu Park over 8.86 acres of land at Jambury Maidan, Agrabad, Chittagong handed over the aforesaid land in favour of the petitioner Chittagong City Corporation to be used for the sole pur­pose of establishing a Shishu Park therein.

4. In view of the above decision, the Pub­lic Works Department of the Government and the Chittagong City Corporation, Chittagong entered into a written agree­ment on 04.12.1991 and accordingly pos­session was delivered layout plan was pre­pared and on the basis of the layout plan the construction of the Shishu Park was completed and the park was opened for the General Public with the full satisfac­tion of the all concerned and that there is no allegation within long span of time that the City Corporation has  violated any terms of the agreement and their activities were found detrimental to the public inter­est.

5. The petitioners Chittagong City Corporation was running the Shishu Park with all its facilities to the satisfaction of all concerned, the respondent No.1 vide his Memo No. W-139(A) (1715) dated 06.05.2003 informed the petitioner No.3 that in the aforesaid Shishu Park, some shops have been constructed which are part and parcel of the said park but the respondent asked the petitioner corpora­tion to remove the unauthorized construc­tion within one week.

6. After receipt of the above mentioned memo the petitioner No.3 vide his Memo No. 769 (3) Estate/Chasik/03 dated 17.05.2003 replied to the respondent No. 1 stating that there has been no violation of any terms of the contract as alleged and accordingly prayed for cancelling the contends of the above mentioned memo but the petitioner corporation has not yet received any reply in the matter.

7. The petitioner Corporation through their learned Advocate sent notice demanding justice to the respondent on 24.05.200; with a request to withdraw, cancel and rescind the impugned memo but no reply was given and hence the petitioners filed the Writ Petition No. 3978 of 2003 for redress and obtained the Rule and an order of stay operation of the impugned order.

8. The High Court Division after hearing the parties discharged the Rule by the impugned judgment and order dated 13.03.2007 passed in Writ Petition No.3978 of 2003.

9. As against the judgment and order of the High Court Division the petitioners have filed this petition for leave to appeal

10. Heard the learned Advocate-on-Record and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

11. It appears that the High Court Division found that the subject matter of the writ petition is a disputed question of facts and the violation of contract which can be adjudicated in the civil court on the basis of evidence and cannot be decided in a summary proceeding of writ jurisdiction.

12. The High Court Division further observed that the 4th allegation is of set­ting up of several shops for commercial purpose on the suit land which was giver to the present petitioners for use as a park only.

In such view of the matter the High Court Division has rightly discharged.

We find no substance in this petition which is accordingly dismissed.

 Ed.

Source : VI ADC (2009) 332

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