Sharping Matshajibi Samabaya Samity Ltd. vs. Bangladesh And Others [1987 7 BLD (AD) 106]
Sharping Matshajibi Samabaya Samity Ltd. vs. Bangladesh And Others
1987 7 BLD (AD) 106
C.A. 36 of 1986
Date of Decision
Name of the Parties
Sharping Matshajibi Samabaya Samity Ltd.
Whether the writ jurisdiction is available to remedy the breach of a contractual obligation.
Sharping Matshajibi Samabaya Samity was granted the lease of the fishery in question for a term of six years at 50% enhanced rate over the existing rent and the lease deed was executed on payment of rent on 22-8-81. Suddenly after three weeks, the Director of Fishery cancelled the lease whereupon Sharping Matshajibi Samabaya Samity challenged the Order by way of Writ. The Rule was made absolute and the High Court Division declared the cancellation Order as void whereupon the appellant was inducted into possession in September, 1982.
... in the case of breach of obligation under a contract between government and a private party, proper remedy lies in a civil suit and not in a writ petition under the extra-ordinary jurisdiction given by the Constitution. But this principle will not apply when the government violates the terms of the contract with a mala fide intention or acts arbitrarily or in a discriminatory manner. Again, when it is alleged, as in the present case, that rent for the lease-hold property has not been paid but the allegation is denied by the lessee who produces undisputed receipts showing that he already paid the rent, then before cancelling the lease on the ground of nonpayment of rent the public functionary must get this dispute settled by giving the lessee an opportunity to show that he actually paid the rent. If any dispute is raised as to interpretation of any term of the contract or lease agreement upon the determination of which the question of alleged breach of the contract depends, then that dispute should be resolved after hearing the lessee. It is true that when a contract specifically provides that breach of any of its terms will render the contract liable to be cancelled, and the government cancels the contract on a finding of such a breach the question of prior notice for cancellation does not arise. But the breach alleged must be established before the action to cancel the contract is taken. Here in this case the dispute was as to the due date for payment of the rent for the Government's lease order supports the lessess's view; or at best, the lease Order is capable of being interpreted in a different way. But when no objection was raised by me government during the first three years of the lease when the rents were paid according to the lessee's calculation the dispute raised after three years should have been resolved upon hearing the lessee. Cancellation of the lease without hearing him is found to be violative of the principle of natural justice. ~ Mr. Justice Shahabuddin Ahmed
The time of payment of rent was never made the essence of contract and cited Section 55 of the Contract Act in support of his contention. ~ Barrister Mr. Syed Ishtiaq Ahmed
The impugned Order was passed illegally and without lawful authority, inasmuch as it is found arbitrary and without proper application of mind. So, the appeal is allowed. The impugned Order of the government cancelling the lease is declared to have been made without lawful authority and to be of no legal effect.