Case No: Civil Appeal No. 19 of 1998
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Mr. B. Hossain,Mr. SS Halder,,
Citation: 51 DLR (AD) (1999) 168
Case Year: 1999
Appellant: Chairman, Bangladesh Water Development Board and another
Respondent: Shamsul Huq and Co. Ltd. and others
Subject: Law of Contract,
Delivery Date: 1999-7-19
Mustafa Kamal CJ
Bimalendu Bikash Roy Choudhury J
Mahmudul Amin Choudhury J
Chairman, Bangladesh Water Development Board and another
Shamsul Huq and Co. Ltd. and others
July 19, 1999.
Bangladesh Water and Power Development Boards Order, 1972
Article 4(3) was never meant to be a provision for enabling the Government to interfere with the day-to-day function of either Board in an individual case and in a particular contractual matter between a Board and a contractor. The High Court Division was absolutely wrong in law in holding that appellant No. 1 was bound to obey the order of the Secretary of the concerned Ministry in this particular matter in view of the fact that the said Secretary is the “final authority”……..(8)
B Hussain, Advocate-on-Record — For the Appellant.
SS Halder, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondents.
Civil Appeal No. 19 of 1998
(From the judgment and order dated 19-8-97 passed by the High Court Division, Dhaka in Writ Petition No. 2192 of 1994).
This appeal by leave by respondent No.2 and another, namely, the then Executive Engineer, Khulna Operation and Maintenance Division-II of Writ Petition No. 2192 of 1994 is from the judgment and order of a Division Bench of the High Court Division dated 19 August, 1997 making the Rule Nisi absolute and directing appellant No. 1 to pay a sum of Taka 24,90,724.25 to the writ petitioner, respondent No.1 herein, within 60 days from the date of receipt of the copy of the impugned judgment.
2. Shortly stated the facts of the case are that, the Executive Engineer, Khulna Division-II of Bangladesh Water Development Board published a notification in the newspaper on 15-1-91 inviting tender from contractors for construction of a retired embankment in between 30th-31st mileage including building of a cross dam over Canal No. 3 at a certain point in Folder No. 32 under Flood Rehabilitation Project of Asian Development Bank during 1990-91. The Writ petitioner’s tender being the lowest for Taka 97,67,787.00 was accepted and the said Executive Engineer issued work order on 18 March, 1991. The writ-petitioner failed to complete the work not only within the stipulated specified time but also within the several extended periods. The work was completed departmentally. The Executive Engineer passed the writ-petitioner’s bill deducting Taka 34,24,072.50 on account of the departmental expenditure. Writ petitioner-respondent No. 1 then sent a written representation to the Secretary, Ministry of Water Resources, Irrigation and Flood Control, respondent No.1 in the writ petition, with allegations, inter alia, that the Executive Engineer had arbitrarily made undue deductions. The allegations were enquired into by a Committee consisting of officials of the said Ministry in which neither the Bangladesh Water Development Board nor the writ petitioner was represented and as per the recommendations contained in the report of the said Enquiry Committee respondent No.1 directed the Bangladesh Water Development Board, appellant No.1, to make payment of a sum of Taka 24,90,724.25 to the writ petitioner immediately, communicated by a Memo dated 3 January, 1993. As appellant No.1 was not complying with the order of respondent No.1, the writ petitioner-contractor preferred the instant writ petition seeking a direction for its implementation and obtained a Rule Nisi. The appellants and other officers of the Bangladesh Water Development Board who were impleaded as respondents in the writ petition contended in their affidavit-in-opposition that the writ petition involved contentious matters, that there was an arbitration clause in the contract and that the Secretary of the concerned Ministry had no authority to issue the direction in the case.
3. The result of the writ petition has already been noted.
4. Leave was granted to consider the submission of the appellants that the Secretary to the concerned Ministry had no authority to give the aforesaid direction and Bangladesh Water Development Board had no obligation to comply with such direction under the law. Therefore, the High Court Division acted beyond its jurisdiction in issuing a writ of mandamus in that behalf. Leave was also granted to consider the submission that at any rate the High Court Division was wrong in directing the said Board to pay Taka 24,90,724.25 to the writ petitioner on the facts and in the circumstances stated in the writ petition.
5. Mr. B Hossain, learned Advocate-on-Record for the appellants, placed the Bangladesh Water and Power Development Board’s Order, 1972 (President’s Order No. 59 of 1972) and submitted that the said Order does not contain any provision that in a matter of this kind the concerned Ministry has any power to issue a direction to the said Board or that the said Board has a duty or obligation under the law to carry it out.
6. Mr. SS Halder, learned Advocate for writ-petitioner respondents No.1 also could not find out any provision in the said President’s Order No. 59 of 1972 under which the said Ministry was authorised to issue a direction of this nature to the said Board and the legal duty of the Board to carry out the said direction.
7. We find that under Article 4(3) of President’s Order No. 59 of 1972 there is a general power of the Government to give directions to the Board. It says, ‘Each Board shall, in discharging its functions, be guided by such directions as the Government may give from time to time.'
8. From the language employed in Article 4(3) it seems to be clear that the direction that the Government may give from time to time to either the Water Board or the Power Board in the discharge of their functions will be in the nature of guidance which will be related broadly to policies and procedures. Article 4(3) was never meant to be a provision for enabling the Government to interfere with the day-to-day function of either Board in an individual case and in a particular contractual matter between a Board and a contractor. If the writ petitioner was aggrieved by the order of deduction from its bills, it could immediately raise a dispute and refer the same for arbitration under clause 25 of the contract between itself and the said Board. The matter would have taken its usual course in terms of the contract. The concerned Ministry may constitute any number of committees for enquiry into the working of any general or particular aspect of either Board’s functions including an enquiry of the present nature for its own information and knowledge. But to issue a mandatory direction on a Board requires a backing of some law which the concerned Ministry does not have. It was, therefore, totally inappropriate and uncalled for the High Court Division to opine that the writ petitioner was not required to go for arbitration or that the writ petitioner spent his good money and fulfilled the terms and conditions of the contract and that the work having been completed he was entitled to receive the money due to him in accordance with law or that the writ petitioner acquired a vested right to have the money returned for the completion of the work. The High Court Division was absolutely wrong in law in holding that appellant No.1 was bound to obey the order of the Secretary of the concerned Ministry in this particular matter in view of the fact that the said Secretary is the “final authority”.
9. Since our attention has not been drawn on any law authorising the Secretary of the said Ministry to give a direction of the kind that has been given in the present case we refuse to recognise the said Secretary as an authority, far less the ‘final authority”. In any view of the matter, the High Court Division in its writ jurisdiction is not a Court for the recovery of money and has no jurisdiction to give a direction for payment of a particular amount of money to the writ-petitioner, unless the amount claimed is both an admitted amount as well as a statutory payment. The High Court Division exceeded its jurisdiction in passing the impugned order.
10. In view of our findings above we need not go into the second point on which leave was granted.
In the result, the appeal is allowed without any order as to costs.