Mohammad Fazlul Karim CJ
Md. Abdul Matin J
ABM Khairul Haque J
Md. Muzammel Hossain J
Warn-Me Wollen Mills Ltd…………..Petitioner
The Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, and others………………….Respondents
March 21, 2010.
Md. Rokonuddin Mahmud, Senior Advocate, instructed by Bivash Chandra Biswas, Advocate-on-Record-For the Petitioners.
Murad Reza, Additional Attorney General, instructed by A. S. M. Khalequzzaman, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos. 2-5.
Civil Petition for Leave to Appeal No.294 of 2009.
(From the judgment and order dated 10.07.2008 passed by the High Court Division in Civil Revision No.3370 of 2007)
ABM Khairul Haque J. – This is a petition for leave to appeal in respect of the judgment and order dated 10.07.2008, passed by the High Court Division in discharging the Rule in Writ Petition No.3370 of 2007.
2. The facts, in brief, are that in the northern side of Dhaka Central Jail there has been a factory since the British regime, run by the prisoners of the said jail, producing blankets, that on the proposal of the petitioner-company, the Government granted a long term lease in its favour in pursuance of lease agreement dated 02.08.1983, for a period of 25 (twenty-five) years which was subsequently extended to 55 (fifty-five) years on amendment of the lease by giving notice for 90 (ninety) days under clause 14 of the lease-agreement. Being aggrieved, the petitioner-company challenged the legality of the said order in the instant writ petition. The respondent No. 2 contested the Rule by filing an affidavit-in-opposition, denying all material allegations made in the petition.
3. The High Court Division, after hearing found the agreement for lease is not a sovereign act on behalf of the Government but an ordinary contract for lease wherein the respondent No.2 leased out the factory in favour of the petitioner for running the same on commercial basis, as such, discharged the Rule as not maintainable.
4. Being aggrieved, the petitioner filed this petition for leave to appeal.
5. Mr. Md. Rokonuddin Mahmud, Senior Advocate, appearing on behalf of the petitioners, submits that the High Court Division erred in law in holding the agreement for lease as an ordinary commercial agreement between the two parties while it was entered into by and between the Government in its sovereign capacity and the petitioner-company, as such, the writ petition was not for challenging the termination of the agreement but to seek the judicial review of the order dated 20.02.2007, passed by the respondent No.3.
6. We have heard the learned Advocate for the petitioners, perused the judgment and order passed by the High Court Division and the papers kept with the paper-book.
7.The moot question before the High Court Division in the instant writ petition was as to whether the agreement for lease dated 02.08.1983 entered with the petitioner-company by the Government in the capacity of its sovereign authority or it was a mere commercial transaction between the two contracting parties.
8. In this case there was an agreement to lease out the Blanket Factory, situated in the Dhaka Central Jail. The agreement was executed on 02.08.1983 by and between both the parties, giving the details of the terms and conditions of the lease including one termination clause. It does not contain any statutory rights or obligations. The right of the lessor to get the annual rentals in lieu of allowing the premises by way of lease in favour of the lessee has been spelt out in the agreement.
9. In that view of the matter, the High Court Division found the lease agreement as an ordinary commercial transaction. By the memo dated 20.02.200, the respondent No.3 terminated the lease by giving a notice for 90 (ninety) days, invoking clause 14 of the Agreement. The legality of such termination can be decided on taking evidence in a civil suit but not under the writ jurisdiction of the High Court Division.
10. Under such circumstances, the High Court Division rightly discharged the rule as not maintainable.
In the result, this petition is dismissed.
Source : VII ADC (2010) 421