IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 1354 of 2006
Decided On: 17.10.2006
Appellants: Bangladesh Water Development Board and Ors.
Vs.
Respondent: Golam Rabbani Khan and Ors.
**Hon’ble Judges:**Syed J.R. Mudassir Husain, C.J., Mohammad Fazlul Karim, Amirul Kabir Chowdhury and Md. Joynul Abedin, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: T.H. Khan, Senior Advocate and Ajmalul Hossain, Senior Advocate instructed by Mvi Md. Wahidullah, Advocate-on-Record
For Respondents/Defendant: Ali, Advocate instructed by Md. Nawab Ali, Advocate-on-Record
Subject: Commercial
Catch Words
Mentioned IN
**Acts/Rules/Orders:**Constitution Of The People’s Republic Of Bangladesh - Article 102
Prior History:
From the Judgment and Order dated 16-7-2006 passed by the High Court Division in Writ Petition No. 94 of 2006
Citing Reference:
Discussed
1
JUDGMENT
Md. Joynul Abedin, J.
1. This petition for Leave to Appeal is directed against the judgment and order dated 16-7-2006 passed by a Division Bench of the High Court Division in Writ Petition No. 94 of 2006 ranking the rule absolute.
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Short fact of the case is that the writ petitioner is the proprietor of Messrs Moon Trader which is engaged in the business of constructions of multistoried building, roads, bridges, river control and development works and also project works in the country. The writ petitioner participated in the tender issued by the respondents and got work order on 23-4-2001 for Spur No. 1 of Hasnerpara in Shariakandi Upazila of Bogra District for controlling the Jamuna river and he completed the tender work as per the revised design undertaken due to morphological change. Subsequently a deep channel was created near Spur No. 1 and it was progressing towards the structure of Spur No. 1. The Chief Engineer of North Western Zone, Superintending Engineer of Bogra O and M Circle and the Executive Engineer of Bogra O and M Division visited the spot and brought the matter to the notice of the higher authority. After due consultation and discussion the Executive Engineer by letter dated 20-7-2002 asked the writ petitioner outside the tender to save the said Spur from damage by supplying and dumping geo bags. The writ petitioner accordingly completed the non-tender work by dumping 39,022 geo begs in order to protect the said Spur. The said non-tender work was approved by the highest authority including the Board and also by the ECNEC by its resolution dated 26-2-2005. After completion of the said Tender and non-tender works certificate for completion of work was issued by the respondent No. 6 mentioning the value of tender work including revised design and non-tender item work on 29-2-2004 and 1-8-10-2004. The bill of non-tender item work for Taka 1,47,70,217.22 was not paid to the petitioner and it remained unpaid though geo bags were supplied and dumped at the spot as per order of the respondent No. 3. The writ petitioner therefore submitted an application to the respondent No. 2 claiming the said amount and the respondent Nos. 1-4 denied to pay the bill of the non-tender work without assigning any valid reason. Thereafter, the writ petitioner having no other alternative remedy filed writ petition under article 102 of the Constitution and obtained rule to show cause why the respondents should not be directed to pay the bill for the said non-tender work done by the writ petitioner.
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The respondent No. 1 in the writ petition contested the rule by filing affidavit-in-opposition stating that they did not refuse to pay the bill but the same was kept under review and decision would be taken after completion of the review.
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Against this backdrop, the High Court Division made the rule absolute directing the respondents to settle the bill.
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Mr. T.H. Khan, learned Senior Advocate while pressing the leave petition submits that the High Court Division has failed to appreciate that the writ petition was not maintainable as the writ petitioner did not exhaust all available remedies such as referring the matter to arbitration under Clause 24 of the Bid Document and contract document or agitating the matter before the appropriate forum before invoking the writ jurisdiction. Consequentially it is also urged by Mr. Khan by referring to the case of Water Development Board vs. Shamsul Huq 51 DLR (AD) 169 that the High Court Division in its writ jurisdiction was not a Court for recovery of money and had therefore no jurisdiction to give a direction as it did for payment of money unless the amount claimed was an ascertained sum.
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We are not impressed by the submissions of Mr. Khan. In the instant case, the High Court Division has directed in the writ petition to settle the bill and not to pay any specified sum of money towards settlement of the bill when the non-tender work was admittedly performed by the writ petitioner and approved by the highest authority of the respondents.
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The leave petition is accordingly dismissed.