Writ in Contractual Matters in Bangladesh: Government Contracts, Tenders and Arbitration Clauses in 2026

Writ in contractual matters: the 2026 position in Bangladesh

A writ in contractual matters is one of the most frequently attempted and most frequently rejected applications before the High Court Division of Bangladesh. Contractors with unpaid bills, bidders who lost a tender, lessees whose lease was cancelled and buyers of government assets whose deal was halted all reach for Article 102 because it is fast and binds the State. Yet the Supreme Court has said for almost four decades that a contract does not become a public law matter merely because a ministry or a statutory body signed it.

This guide sets out when a writ lies in a contractual dispute and when it does not, the public law element the court looks for, the special position of tenders and public procurement, the effect of arbitration and dispute-resolution clauses, including the Appellate Division's February 2026 decision in the Chisty Textile Mills case, and how to frame a petition, or a defence, that survives the maintainability objection.

Summary: The High Court Division will not use Article 102 to enforce an ordinary commercial contract, even against a public body. A writ lies where the contract is statutory, where the authority acts in a sovereign or statutory capacity, where a statutory duty is breached, or where the State's conduct in awarding or ending the contract is arbitrary, mala fide or in breach of tender rules. Where the contract provides arbitration or another dispute route, the court now expects the parties to use it.

Key point: In February 2026 the Appellate Division confirmed that where a contract with a public body sets out arbitration or another dispute-resolution mechanism, the aggrieved party should pursue that remedy rather than invoke the High Court Division's writ jurisdiction, even in a sale of a State asset.

At a glance

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Table of Contents

The general rule against using a writ to enforce a contract

Article 102(2) allows the High Court Division to issue writs against a person performing functions in connection with the affairs of the Republic or of a local authority, but only where no other equally efficacious remedy is provided by law.[1] A contracting party almost always has another remedy: a suit for damages or specific performance, or the dispute-resolution route written into the contract. That is the textual root of the rule that a writ in contractual matters is the exception, not the norm.

The leading authority remains Sharping Matshajibi Samabaya Samity Ltd v Bangladesh, 39 DLR (AD) 85 (1987). The Appellate Division held that breach of a contract with the government remains a private law matter unless the contract's terms are statutory or the government acted in exercise of sovereign power.[2] [3] Later decisions have applied the same idea in different words: in Ananda Builders Ltd v BIWTA, 57 DLR (AD) 31 (2005), the court said a contract does not become statutory merely because a public body signed it.[2]

The rule restated in 2025

On 9 December 2025, in Nipun Enterprise v Secretary, Ministry of Primary and Mass Education, Writ Petition No 7944 of 2011, the High Court Division discharged a rule against a demand for a performance guarantee under a paper-supply contract with the National Curriculum and Textbook Board. It held that not every contract with a government entity is reviewable under Article 102; that writ jurisdiction is available only where the contract has a statutory or sovereign character or its terms are dictated by statute; and that ordinary commercial disputes, which turn on facts and contractual obligations, belong in the civil courts or the forum the contract specifies.[3]

When a writ in contractual matters is maintainable

The exceptions are as important as the rule. In Bangladesh Power Development Board v Asaduzzaman Sikder, 9 BLC (AD) 1, the Appellate Division identified the situations in which a writ may be invoked for breach of contract. As summarised by the High Court Division in 2025, they are where:[3]

• the government acts in its sovereign capacity;
• the obligation arises from a statutory or public function;
• the contract itself is statutory;
• the public authority enters into the contract in exercise of a statutory power; or
• the relief sought is for breach of a statutory obligation.

The Appellate Division reaffirmed those categories in later decisions, including one reported at VI ADC (2009) 736.[2] Every petition that seeks a writ in contractual matters should be pleaded expressly into one of these categories.

Statutory contracts and licences

The clearest case is a contract that has merged into a statutory instrument. In Bangladesh Telecom Ltd v BTTB, 48 DLR (AD) 20, the agreement had merged into a statutory licence, so its cancellation was a statutory act open to writ.[2] Fishery leases granted under statutory schemes have also been reviewed: in Lutfu Mia v Government of Bangladesh, 1981 BLD (AD) 105, approval of a lease was set aside as arbitrary.[2] By contrast, in Sekendar Ali v Chairman, BIWTA, 40 DLR (AD) 262, rights under a licence that itself permitted cancellation without compensation were held not amenable to writ.[2]

Arbitrary, mala fide or unfair State action

The second exception concerns the manner in which the State acts rather than the source of the contract. Writ relief may be available where government action in making, performing or ending a contract is mala fide, arbitrary, discriminatory or unfair. In Shahadat Hossain v Executive Engineer, City PWD Dhaka, 44 DLR 420 (1992), mala fides was inferred from a sudden cancellation and delay. Bare allegations are not enough; mala fides must be proved.[2]

Dispossession without due process

A third line of authority protects occupiers. In Bangladesh v M/S A T J Industries Ltd, 29 DLR (SC) 181 (1977), the court held that a lessee could not be forcibly evicted after termination without due process, and in Hasna Mansur v Secretary, Ministry of Public Works, 34 DLR (AD) 34 (1982), entry and demolition without statutory authority were challengeable by writ.[2] The contract may have ended, but the State must still act lawfully in recovering possession.

Writ in contractual matters involving tenders and public procurement

Tenders are where a writ in contractual matters most often succeeds, because they occupy a middle ground. Before a contract is signed there is no private law bargain to enforce, and the procuring entity is applying a statutory scheme: the Public Procurement Act 2006 and the Public Procurement Rules 2008.

The Appellate Division has long held that a tenderer has no inchoate legal right to the contract, but that protection may arise if acceptance violates the tender conditions: M/S Hossain Ahmed v M/S H D Hossain & Brothers, 32 DLR (AD) 223.[2] Transparency in evaluation was emphasised in Hyundai Corporation v Sumikin Bussan, 54 DLR (AD) 88, and Ekushey Television v Dr Chowdhury Mahmood Hasan, 54 DLR (AD) 130.[2]

The statutory complaint route first

The procurement regime has its own ladder of remedies. Under rules 56 to 60 of the 2008 Rules, as described by the Bangladesh Public Procurement Authority, a complaint goes first to the procuring entity within seven calendar days, then to the head of the procuring entity, then to the secretary, and finally by appeal to a Review Panel within seven working days of the secretary's decision; Review Panel decisions are taken by majority.[9] A bidder who skips this route will usually face the alternative remedy objection. Our guide to the procurement complaint and Review Panel process explains each step.

Writs against Review Panel decisions

The writ is the remedy against the Review Panel itself. In Mim Development Engineering Ltd v Government of Bangladesh, Writ Petition No 8501 of 2023, decided on 6 December 2023, the High Court Division set aside a Review Panel order and the resulting notification of award because the panel sat with two members when rule 58 required three, and directed a properly constituted panel to decide the appeal within seven working days.[6]

On 13 August 2025, in Roots Developments Ltd v Chairperson, Review Panel No 2, BPPA, Writ Petition No 6624 of 2024, another bench declared a panel decision ordering a re-tender without lawful authority, holding that the two-member panel was improperly constituted and that rule 60(3) allowed recommendations on irregularities but not cancellation of the procuring entity's decision.[7]

The lesson is that the procurement scheme is itself statutory, so errors of jurisdiction and procedure within it are classic public law grounds. For the wider procurement picture, see our analysis of the 2026 public procurement amendments.

Arbitration and dispute-resolution clauses

Most public works and supply contracts in Bangladesh incorporate standard general conditions that provide for amicable settlement, adjudication and arbitration. The High Court Division treats that machinery as an equally efficacious alternative remedy.

In Mark Construction Ltd v Chief Engineer (Project), Rural Electrification Board, 3 SCOB [2015] HCD 37, a contractor challenged letters threatening to encash its performance guarantees and debar it. The court held the writ not maintainable because the dispute arose from a simple commercial contract and the general conditions provided settlement, adjudication and arbitration under the Arbitration Act 2001. It gave the contractor thirty days to start that process and restrained encashment meanwhile.[4] The 2025 Nipun Enterprise decision applied the same reasoning to a similar clause.[3]

The Chisty Textile Mills decision, 2026

The Appellate Division has now put the point beyond doubt. AMS Faraz Construction agreed in January 2014 to buy the closed State-owned Chisty Textile Mills for Tk 35 crore, paid Tk 15 crore and took possession; the government then halted the sale amid reports that there had been no tender or auction. The High Court Division ruled for the buyer in 2015, the Appellate Division reversed in July 2018, and on 22 February 2026 a five-member bench led by Chief Justice Zubayer Rahman Chowdhury dismissed the buyer's review petition.[5]

The court held that where a contract sets out arbitration or another dispute mechanism, "the aggrieved party should pursue the remedy prescribed in the contract without invoking the exceptional jurisdiction" of the High Court Division, even where a statutory body is selling a government asset. It also found that the liquidator could sell only by tender or open auction and that the buyer had itself breached the payment schedule.[5] For drafting implications, see our guide to the arbitration clause in Bangladesh.

Unpaid bills and admitted dues

Contractors chasing payment present a distinct problem. Strictly, a claim for money under a works contract is a private law claim. In practice, the High Court Division has been willing to act where the authority has admitted the debt in writing and simply failed to pay. On 10 February 2026, in Md Akram Hossain v Government of Bangladesh, Writ Petition No 9653 of 2024, the court ordered the Roads and Highways Department to pay Tk 32,87,000 in admitted bills for three road-maintenance contracts within 60 days, with compensation at the prevailing bank lending rate on default.[8]

Two cautions apply. The court in that case recorded the maintainability objection but did not decide it separately, so the decision is not authority that every payment dispute can be brought by writ.[8] And the outcome rested on written admissions; where the amount or the quality of work is disputed, the court will send the parties to the civil court or arbitration because disputed facts cannot be resolved on affidavit.[3]

Ordinary commercial contracts: where the writ fails

The list of failed petitions is long and instructive. The Appellate Division and High Court Division have refused a writ in contractual matters where the dispute concerned ordinary dealings with Dhaka WASA, BTRC, Petrobangla and a State-owned bank: ARK Associates Ltd v Chairman, Dhaka WASA, 19 BLD (HCD) 349; Chairman, BTRC v Nooruddin, 3 BLC (AD) 225; Managing Director, WASA v Mohammad Ali, 59 DLR (AD) 185; Meghna Vegetable Oil Industries Ltd v Petrobangla, 50 DLR 474; and Fazlur Rahman & Co v Agrani Bank, 51 DLR 350.[2] [3]

The common thread is that the public body was acting as a trader, landlord or purchaser, and the petitioner's grievance was a breach of the bargain. Courts have also reminded contractors that parties are held to their bargain and that a bad bargain alone does not make the government liable: Ataur Rahman v Bangladesh, 47 DLR 331.[2]

Defending a writ in contractual matters as a public body

Ministries, statutory corporations and procuring entities are frequent respondents, and the defence follows a predictable pattern. The first and often decisive point is maintainability: an affidavit-in-opposition should show that the contract is an ordinary commercial one, that the public body acted as a purchaser, seller or employer rather than as sovereign, and that the contract supplies its own remedy. That was the basis on which the rule was discharged in Nipun Enterprise, where the respondent applied to discharge the rule on exactly those grounds.[3]

The second point is the facts. Where performance, delay or quality of work is disputed, the respondent should put the dispute squarely on affidavit, because disputed facts are a strong reason for the court to decline jurisdiction.[3] The third is the petitioner's own conduct. In the Chisty Textile Mills case the Appellate Division weighed the buyer's failure to pay the instalments and its failure to use the arbitration mechanism against it.[5] Finally, a public body should avoid written admissions of liability it does not intend to honour: in Md Akram Hossain the authority's own letters acknowledging the dues decided the case.[8]

None of this means a public body can act as it pleases. A writ in contractual matters will still succeed where the authority cancels a statutory lease arbitrarily, ignores its own tender conditions, or evicts an occupier without lawful authority.[2] The safest course for an authority is to follow the contract and the procurement rules to the letter, and to record reasons for every adverse decision.

Framing the petition: a practical sequence

Whether you are a contractor considering a petition or an authority facing one, the same analysis applies. The steps below reflect how we assess a proposed writ in contractual matters before anything is filed.

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Remember also the interim position. A rule with a stay can preserve a bid security, a performance guarantee or possession while the case is heard, but a stay obtained on a petition later found not maintainable can cost a party time it needed for arbitration or suit. Our general guide to the writ petition in Bangladesh covers interim relief and our sibling guide on the alternative remedy bar in writ explains how courts weigh other remedies.

Writ, suit or arbitration: comparing the routes

The table compares the main forums for contract disputes with public bodies. On a phone, scroll it sideways.

What to watch in 2026

The direction of travel is clear. The 2025 restatement in Nipun Enterprise and the Appellate Division's 2026 decision in the Chisty Textile Mills case both push contract disputes towards the civil courts and arbitration, while the 2023 and 2025 Review Panel decisions show the court will still police the procurement scheme for jurisdictional and procedural error.[3] [5] [6] [7] The likely next battleground is whether written admissions of debt, as in Md Akram Hossain, will be treated as creating a statutory payment obligation enforceable by writ.[8]

For contractors and investors, the practical message is to plan the dispute route when the contract is signed, not when it breaks down. For authorities, it is to raise maintainability at the first hearing. Our constitutional and writ litigation practice and procurement review panel appeals practice act on both sides.

Frequently asked questions

Can I file a writ to enforce a contract with a government body?

Usually not. Breach of an ordinary commercial contract is a private law matter even if a public body is a party, and the civil court or contractual forum is the proper route.[3]

When does a writ in contractual matters lie?

Where the government acts as sovereign, the obligation is statutory or public, the contract is statutory or made under statutory power, or the relief is for breach of a statutory duty.[3]

What is the leading case?

Sharping Matshajibi Samabaya Samity Ltd v Bangladesh, 39 DLR (AD) 85, read with Bangladesh Power Development Board v Asaduzzaman Sikder, 9 BLC (AD) 1.[2] [3]

Does an arbitration clause bar a writ?

In practice, yes. The Appellate Division held in February 2026 that the aggrieved party should pursue the contractual remedy rather than invoke Article 102.[5]

Can a losing bidder challenge a tender award by writ?

Yes, for illegality, arbitrariness or breach of tender conditions, but the statutory complaint and Review Panel route should normally be used first.[2] [9]

Can a Review Panel decision be challenged in the High Court Division?

Yes. Decisions of improperly constituted panels, or panels exceeding their powers, were set aside in 2023 and 2025.[6] [7]

Can a contractor recover unpaid bills through a writ?

Sometimes, where the authority has admitted the dues in writing. In February 2026 the court ordered payment of Tk 32,87,000 in admitted bills within 60 days.[8]

Can a writ stop encashment of a performance guarantee?

Only temporarily in most cases. In Mark Construction the court restrained encashment for thirty days to allow the contractor to start arbitration.[4]

Does a public body's signature make a contract statutory?

No. The Appellate Division has held that a contract does not become statutory merely because a public body signed it.[2]

What if the dispute involves contested facts?

The High Court Division will not resolve disputed facts on affidavit, so contested questions of performance or quantum belong in the civil court or arbitration.[3]