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IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL PETITION FOR LEAVE TO APPEAL NO.494 AND 495 OF 2018
(From the judgment and decree dated the 16th day of May, 2017 passed by the
High Court Division in First Appeal No.106 of 2009 and Cross Objection No.
795 of 2011 respectively.
Engr. Md. Shaheedullah : . . . Petitioner
(In both the cases)
-Versus-
Mrs. Shahana Neyamat and others : . . . Respondents
(In both the cases)
For the Petitioner
(In both the cases)
: Mr. Mohammad Mehadi Hassan
Chowdhury, Senior Advocate
instructed by Mr. Mohammad Ali
Azam, Advocate-on-record
For Respondent No.1
(In both the cases) : Mr. Saifur Rashid, Advocate
instructed by Mr. Md. Azimuddin,
Advocate-on-Record
For Respondent Nos.2-3
(In both the cases) : Not Represented
Date of Hearing and Judgment : The 24th day of July, 2024
JUDGMENT
M. Enayetur Rahim, J: Civil petition for leave to appeal
No.494 of 2018 is directed against the judgment and order
dated 16.05.2017 passed by the High Court Division in First
Appeal No.106 of 2009(heard along with Cross Objection
No.795 of 2011) allowing the appeal, and Civil Petition for
leave to Appeal No. 495 of 2018 is directed against the
order passed by the High Court Division in Cross Objection
No. 795 of 2011 rejecting the same.
The relevant facts leading to the filing of these
civil petitions for leave to appeal are that, the present
respondent No.1 as plaintiff instituted Title Suit No.11 of
2004 in the Court of Joint District Judge, 3rd Court, Dhaka 2
for specific performance of contract contending, inter alia,
that defendant No.1 (present petitioner)is the owner of Plot
No.42 of Sector 3, Uttara Model Town, Mentioned in the
schedule of the plaint, who erected a six storied building
having 10 apartments in the suit plot No.42. Thereafter, he
sold out some of the apartments to different persons along
with 1/10th portion of undivided and un-demarcated land of
594 square yards (7.5 kathas) of the suit plot to each
apartment owner. The defendant No.1 in need of money offered
in May 2002 to the plaintiff to sell out the suit apartment
in the fourth floor (eastern side) of the said building
along with 1/10th portion of 594 square yards (7.5 kathas)
land in undivided and un-demarcated shares. The plaintiff
agreed to purchase the suit flat. Accordingly, the plaintiff
and defendant No.1 came to an oral agreement on 16.05.2002
in presence of Sabbir Zaman, Nurul Islam, Habibur Rahman and
others for the sale of the suit apartment at a price of
Tk.18,20,000/-(Eighteen Lac Twenty Thousand) only. In
accordance with the terms of oral agreement dated 16.05.2002
the plaintiff paid an amount of Tk.2,00,000/- (Two Lac) in
advance to the defendant No.1 on the same date. Husband of
the plaintiff Mr. Neyamat Ullah issued a cheque to the
defendant being No.3098557 dated 16.05.2002 of the United
Commercial Bank Ltd. Gulshan 2 Branch, Dhaka for the said
amount of Tk. 2,00,000/- (Two lac). After receiving the
cheque on 16.05.2017 the defendant No.1 delivered vacant
possession of the suit property to the plaintiff on the same
date and since then the plaintiff has been residing therein
with her husband and daughters. An oral agreement was made
between the parties that defendant No.1 shall execute and 3
register the sale deed in favour of the plaintiff by
15.05.2003 after receiving the remaining money. Thereafter,
on 27.11.02 in compliance with the terms of oral agreement,
the plaintiff issued a cheque being No.2302965 of the Al
Baraka Bank Ltd. (at present Oriental Bank Ltd.) Gulshan
Branch for an amount of Tk.10,00,000/- (Ten lac) to the
defendant No.1 and he encashed the said cheque and received
the amount. Although, the plaintiff paid Tk.12,00,000/-
(twelve lac) to the defendant No.1 in advance, defendant
No.1 did not provide any receipt to her in spite of repeated
requests on several occasions. On 30.04.2003 when the second
daughter of the plaintiff asked defendant No.1 to receive
the rest of the amount of Tk.6,20,000/- (six lac and twenty
thousand) and asked to execute and register the sale deed in
favour of the plaintiff, the defendant No.1 refused to do
so. The plaintiff again on 10.05.2003, 17.07.2003 and
30.10.2003 offered to receive the said amount and requested
the defendant No.1 to execute and register the sale deed in
her favour, but the defendant No.1 refused. Lastly on
08.01.2004 the plaintiff sent a legal notice to the
defendant No.1 asking him to execute and register the sale
deed in favour of the plaintiff within 7 (seven) days of the
date of receipt of the notice, in default the plaintiff
would file suit against him for specific performance of
contract, but the defendant No.1 did not pay any heed,
rather without giving any reply to the legal notice of the
plaintiff, he sent a legal notice to the plaintiff on
21.01.2004 through his lawyer stating that the plaintiff and
her husband are the tenants of the scheduled flat and the
defendant No.1 wanted to sell out the scheduled property 4
within 1 (one) month and also asked the plaintiff to vacate
the possession of the scheduled flat by 01.02.2004. Since
the plaintiff was inducted into possession and she has given
an amount of Tk.10,000/- (ten thousand) to the defendant
No.1 towards payment of electricity bills. However, the
defendant No.1 has not given any receipt whatsoever despite
repeated requests by the plaintiff except a handwritten note
calculating the electric bill for a period of 112 days from
01.09.2002. The plaintiff has also given an amount of
Tk.8,000/- (Eight thousand) only towards payment of gas
bill. The plaintiff after being inducted into possession is
paying an amount of Tk.2000/- (two thousand) only as service
charge which includes security, water and sewerage. The
defendant No.1 was issuing receipts for the same in the name
of the plaintiff. However, since July, 2003 with mala fide
intention, the defendant No.1 is filling up the receipts in
his own name and the defendant No.1 refused to execute and
register the sale deed in favour of the plaintiff. Hence,
the plaintiff filed the suit.
The defendant No.1 contested the suit by filing written
statement denying all the material allegations made in the
plaint contending that he is the owner and possessor of the
suit property, and being the owner and possessor, he
mortgaged the same with the Islami Bank Bangladesh Ltd.
Uttara Branch on 15.09.1999 for loan to construct 6(six)
storied building with the approved plan from RAJUK in which
there are 10 flats. To pay the construction bills the
defendants No.1 sold 6 (six)flats in the 1st, 2nd and 3rd
floor after getting clearance from the Islami Bank
Bangladesh Ltd. and after making mortgage deed dated 25th of 5
May 2003, the defendant No.1 sold 6 (six) flats to different
persons and the rest 4 flats are being possessed by the
defendant No.1 for residing there off and by letting out. As
per revised mortgage deed the defendant No.1 cannot sale the
flats of 4th and 5th floor without permission from the Bank
and he can reside or rent the flats only. The husband of the
plaintiff was inducted as a monthly tenant in the suit flat,
i.e. at flat No.4/A, in the 4th floor (eastern side) from 1st
June 2002 at a monthly rent (including service charge) of
Tk.20,000/- (twenty thousand) and a sum of Tk.2,00,000/-
(two lac) was paid by the husband of the plaintiff as
advance rent on 16.05.2002 of the United Commercial Bank
Ltd. Gulshan-2 Branch, Dhaka; like all other tenants in the
building the plaintiff is to pay all other charges like
electricity and Gas bill as utility bill. There is or was no
written contract to let or no rent receipt issued; the
husband of the plaintiff is related with the Manpower export
to foreign counties. Knowing this the defendant No.1
requested the husband of the plaintiff to send two relatives
of the defendant No.1 to Italy namely Md. Sharif Ullah, son
of Md. Fazlul Haq Sarker, Passport No.00812101, issued on
14.09.1999 and Md. Sirajul Islam, son of Md. Azahar Ali,
Passport No. Q 0849431, issued on 03.12.2001. The Husband of
the plaintiff agreed and claimed Tk.10,00,000/- (ten lac)
only and committed to send them to Italy within 3 (three)
months and if failed to do so, he will return the money
after 3 (three) months. The defendant No.1 paid
Tk.10,00,000/- (Ten lac) in cash including their passports
to the husband of the plaintiff on 10.08.2002. The husband
of the plaintiff through M/s. HEAVEN ASSOCIATES of Gulshan 6
Shopping Center (Gulshan-1) Dhaka, a recruiting agency
tried, but within 3 (three) months he could not succeed.
Then on request of the defendant the husband of the
plaintiff returned the passports of the two persons and
issued a cheque of Tk.10,00,000/- (ten lac) being No.1202965
dated 27.11.2002 of Al Baraka Bank, Gulshan Branch, Dhaka to
the defendant No.1 on 27.11.2002. The cheque of Tk.
2,00,000/-(two lac) of advance rent was issued by the
husband of the plaintiff and the returned cheque of
Tk.10,00,000/- (ten lac) was issued by the husband of the
plaintiff in favour of the defendant No.1 for the above
manpower business purpose. The defendant did not make any
oral agreement for sale. The plaintiff’s case is false.
The respective parties adduced evidence both oral and
documentary before the trial Court and the trial Court on
conclusion of the trial dismissed the suit.
Being aggrieved by the said judgment and decree the
plaintiff preferred First Appeal No.106 of 2009 before the
High Court Division. The contesting defendant No.1 also
filed Cross Objection No.795 of 2011 in the High Court
Division, which was heard along with the said First Appeal.
After Hearing, a Division Bench of the High Court
Division by the impugned judgment and decree dated
17.05.2017 allowed the appeal and decreed the suit upon
setting aside the judgment and decree passed by the trial
Court and rejected Cross Objection No.795 of 2011 filed by
the contesting defendant.
Being aggrieved by the said judgment and decree the
defendant has preferred these civil petitions for leave to
appeal before this Division. 7
Mr. Mohammad Mehadi Hassan Chowdhury, the learned
Senior Advocate appearing for the petitioners submits that
the plaintiff’s case is solely based on oral agreement
alleged to have been executed between the plaintiff and the
defendant and in the plaint few persons have been named who
were said to be present at the time of alleged oral
agreement on 16.05.2002, and in the plaint though the
plaintiff stated that at the time of oral agreement, she,
the defendant No.1, one Sabbir Zaman, Habibur Rahman and
Nurul Islam were present but to prove her statement made in
the plaint in respect of this oral agreement, the plaintiff
herself did not depose as witness in the suit and her
daughter deposed on her behalf, the attorney was not a party
to the agreement and also not present at the time of
agreement as such, she was incompetent to depose in the suit
and her evidence was inadmissible, which was not considered
by the High Court Division.
Mr. Chowdhury further submits that an agreement for
sale contains some terms and condition as to the
consideration money, time of payment of consideration money,
time to execution of transfer deed etc. but neither the
plaintiff nor the witnesses could make detail statement in
respect of all their terms and condition and as such the
plaintiff failed to prove that there was any oral agreement
for sale of the flat and the High Court Division failed to
consider this aspect of the matter.
The defendant No.1 published notice about letting the
flat in the Daily Ittefaq dated 12.04.2002 on taking such
information about the rent, the plaintiff took rent of the
flat from the defendant No.1 and, thereafter, she paid 8
monthly rent and utility bills as a tenant on behalf of the
defendant No.1 but ultimately he did not pay rent though she
has enjoying the flat as tenant and, thereafter, the
defendant No.1 had to lodge G.D. No.1953 dated 27.10.2003
but this fact was not considered by the High Court Division.
Mr. Chowdhury also submits that the oral agreement is
to be proved very strictly but in the instant case, the
plaintiff having failed to appear to depose in the Court to
prove the plaint and the P.W-2 deviated from the statement
made in the plaint, similarly the P.W-4 also deviated from
the plaint case of oral agreement and case of part
performance, the P.W-4 gave altogether a different statement
deviating from the plaint, P.W-5 did not support the
plaintiff’s case but the High Court Division altogether
failed to consider this deviations of the P.Ws from the
plaint story and thus erred in law in holding that there was
an existence of the oral agreement between the plaintiff and
the defendant No.1 in respect of sale of the flat in
question.
It was further argued by the learned Advocate for the
petitioner that under section 53A of the Transfer of
Property Act the party asserting part performance of
contract must prove the existence of a contract in writing
but there is no such written agreement and as such the
plaintiff does not have any right of protection under
section 53A of the Transfer of Property Act and since the
plaintiff failed to prove the contract with reasonable
certainty about its terms of the contract even if presumed
(not admitted) to be in existence, the same cannot be
enforced and as such the suit was liable to be dismissed and 9
the Trial Court rightly dismissed the same but the High
Court Division erred in law in decreeing the suit which is
ex-face not tenable in law and liable to be set aside.
Mr. Chowdhury lastly submits that P.W-1 is the daughter
of the plaintiff, P.W-2 is the son-in-law of the plaintiff,
P.W-3 is also nephew of the plaintiff and the P.W-4 is the
husband of the plaintiff and all of them are interested
witnesses, on the other hand P.W-5 did not support the
plaintiff’s case and, as such, there was no neutral witness
in favour of the plaintiff but the Court of appeal below,
the final Court of facts, did not consider this vital aspect
when deciding a suit for specific performance of contract
based on oral agreement and as such the impugned judgment
and decree is liable to be set aside.
On the other hand, Mr. Saifur Rashid, learned Advocate
for the respondent made submissions in support of the
judgment and decree passed by the High Court Division.
We have heard the learned Advocates for the respective
parties, perused the judgment of the trial Court as well as
the same of the High Court Division and other materials as
placed before us.
In the instant case, the plaintiff has sought relief of
specific performance of contract on the basis of an oral
agreement. It is well settled principle of law that such
type of oral agreement has to be looked at with some
suspicion unless it is proved by reliable evidence. In the
case of Moslemuddin (Md) and others vs. Md. Jonab Ali and another,
reported in 50 DLR (AD) 13, it has been held that: “We should
observed here that so far as the oral agreement is concerned it should always be very 10
closely scrutinized and taken with a grain of salt. Although oral agreement is not barred by
any law it has to be looked at with some suspicion unless proved by very reliable evidence
and circumstances. In Ouseph Varghese vs. Joseph Aley, (1969) 2 SCWR 347 the
Supreme Court of India discouraged a decree for specific performance of contract on the
basis of an agreement supported solely by oral evidence.”
In the case of Government of Bangladesh vs. Mrs. Noorjahan Khan
and others, reported in 2000(VIII)BLT(AD), this Division held that
in a suit for specific performance of contract the
genuineness of the agreement of sale is the prime
consideration.
In order to decree a suit for specific performance of
contract the plaintiff must prove that there was a concluded
contract between himself and the defendant. Where there is
no concluded contract there will be no enforcement
[Reference: Nur Mohammad and Co. Ltd vs. Bangladesh, 61 DLR (AD)77; H.N.
Babrics Ltd. vs. Mallick Textile Industries, 1985 BLD (AD) 271].
Upon perusal of the evidence on record, it is very
difficult for us to come into a definite conclusion that the
alleged oral agreement between the plaintiff and the
defendant was/is a concluded contract.
In the instant case it appears from the impugned
judgment that the High Court Division itself has determined
the price of the suit flat as Tk.36,00,000/-(Thirty lac) and
directed to pay the rest amount Tk. 24,00,000/- (twenty four
lac) to the defendant No.1 with a direction to the defendant
No.1 to execute the sale deed of the disputed apartment in
the next 30 days. Failing which the plaintiff is at liberty
to initiate proceeding in accordance with law. 11
The above finding of the High Court Division proves
that the alleged oral agreement, even if taken to be true,
was not a concluded contract and the High Court Division
exceeded its jurisdiction in determining the value/price of
the flat in question sitting in the Court of Appeal.
In a suit for specific performance of contract, neither
the trial Court nor the appellate Court has any
jurisdiction/authority to determine the price of suit
property afresh, exercising its judicial power ignoring the
terms of contract. Court cannot re-fix the consideration,
i.e. the value of the suit property and go beyond the terms
of the contract, and it cannot impose or add any term(s) in
the contract.
In the instant case the High Court Division most
erroneously itself re-fix the value of the suit flat, i.e.
the consideration and decreed the suit.
The trial Court relying on section 21 (b) of the
Specific Relief Act, 1877 has observed:
""GgZve¯’vq, evw`bx I 1 bs weev`xc‡ÿi g‡a¨ bvwjkx d¬vUwU weµ‡qi wel‡q
GKwU †gŠwLK Pzw³ m¤úv`b nIqvi welqwU cÖgvwYZ nB‡jI D³ Pzw³i g~j kZ©vejx
wbf©i‡hvM¨ cªgvwYZ bv nIqvq ev`xc‡ÿi `vexK…Z †gŠwLK Pzw³wU AvBbZ: eje`‡hvM¨
b‡n ewjqv Avwg g‡b Kwi| 3 bs wePvh¨ welqwU †mB g‡Z evw`bx c‡ÿi cªwZKz‡j
wb®úwË Kiv nBj|Ó
However, the High Court Division without adverting to
the said finding with reference to evidence on record passed
the impugned judgement and decree and thus, committed
serious error of law.
In the case of Kamrunnessa vs. Abul Kashem, reported in 2
MLR (AD) 220, it has been held that the discretionary relief
of decreeing specific performance depends on two cardinal 12
principle-(i)the plaintiff must prove the execution of the
deed of agreement and (ii) passing of consideration. In
the case of Kaniz Fanema vs. Bangladesh, reported in 6 MLR (AD) 203,
this Division held that where the genuineness of an
agreement is not established the suit for specific
performance cannot succeed.
In the instant case, the defendant categorically
asserted that the flat in question along with the other
flats of the suit plot was given mortgage to the Bank. But,
the bank has not been made a party in the suit. In the case
of Sooraya Rahman vs. Hajee Md. Elias, reported in 8 BLC (AD) 7, this
Division affirmed the findings of the High Court Division
that in a suit for specific performance of contract the
defendant No. 1 was a lessee for 99 years and the property
belonged to RAJUK. There was a provision in the lease deed
that permission from RAJUK would be necessary for transfer
of the property. Permission was obtained on 10.03.1973 which
was cancelled subsequently on 21.10.1974. RAJUK was not a
party in the suit, thus suit to be bad for defect of party
holding RAJUK is a necessary party thereto.
In the instant suit the mortgagee Islami Bank, Uttara
Branch is a necessary party, but the plaintiff did not make
it party, though the defendant in his written statement
categorically made statements to that effect. Thus, the suit
is bad for defect of party.
Having considered and discussed as above, we are of the
opinion that the High Court Division committed serious error
of law in passing the impugned judgment and decree decreeing
the suit for specific performance of contract on the basis 13
of an oral agreement which was not proved by the plaintiff
in accordance with law and on reliable evidence.
Since we have heard the learned Advocates for the
respective parties, we are inclined to dispose of the civil
petition for leave to appeal without granting any leave to
avoid further delay to dispose of the case.
Accordingly, Civil Petition No. 494 of 2018 is disposed
of. The impugned judgment and decree passed by the High
Court Division is hereby set aside.
However, the defendant-petitioner is directed to return
taka 12(twelve) lakh to the plaintiff within a period of 30
(thirty) days from the date of receipt of this judgment and
order. Since 2002, the plaintiff has been enjoying the flat
in question without paying any rent to the appeal, thus we
refrain to give any solitium to the plaintiff.
Civil Petition for Leave to Appeal No. 495 of 2018 is
disposed of in the light of the above judgment.
J.
J.
J.
B.S./B.R./*Words-3,534*
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1
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL APPEAL NO.149 OF 2023
(From the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division in Company Matter No.483
of 2022)
Tabassum Kaiser : ....Appellant
=Versus=
Partex Cables Limited,
represented by its Managing
Director and others
: ...Respondents
For the Appellant : Mr. Probir Neogi, Senior Advocate
with Ms. Nihad Kabir, Senior
Advocate with Mr. Md.
Asaduzzaman, Senior Advocate with
Mr. Md. Anisul Haque and Mr.
Subrata Chowdhury, Advocates,
instructed by Mr. Md. Taufique
Hossain,
Advocate-on-Record
For Respondent Nos.1-2 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tanjib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mr. Md.
Helal Amin, Advocate-on-Record
For Respondent
Nos.3,4,7,8&10 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tangib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mrs.
Madhumalati Chowdhury Barua,
Advocate-on-Record
Respondent NOs.5,6,9 &11-13 :
:
Not represented
Date of hearing : The 2nd & 3rd day of July, 2024
Date of judgment : The 31st day of July, 2023
JUDGMENT
M. Enayetur Rahim, J: The civil appeal, by leave, is directed
against the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division dismissing Company
Matter No.483 of 2022. 2
The case of the appellant is that respondent No.01-company
was incorporated on 18.09.2013 as a private limited company under
the Companies Act, 1994 [hereinafter referred to as the Act
1994], having registration No.C-111384 and involved in the
business as manufacturer of building wiring cables and power
cables in Bangladesh with initial authorized share capital of
taka 10,00,00,000/- (ten crore), divided into 10,00,000 (ten
lac) ordinary shares of taka 100 each wherein initial promoters
were Aziz Al Kaiser, respondent No.2 held 25,500 shares and Aziz
Al Mahmood [ex-shareholder and ex-director of respondent No.01-
Company] held 4,500 shares. Said Aziz Al Mahmood transferred his
entire shares being 4,500 shares of the company to respondent
No.02 and the present appellant, and resigned from his post as
Director of respondent No.01-Company on 25.12.2017. After the
said transfer of shares by said Aziz Al Mahmood, respondent No.02
held 27,000 shares and the present appellant held 3,000 shares of
respondent No.01-Company. Pursuant to the said transfer of shares
by said Aziz Al Mahmood, the appellant became a Director of
respondent No.01-Company and the ratio of shareholding structure
of respondent No.01-Company was 90:10, i.e. respondent No.02 held
90% of the shares and the present appellant held 10% shares. The
present appellant recently came to know that respondent No.01, in
connivance with respondent No.02, allegedly allotted a total
number of 8,97,00,000 shares on 30.03.2022, 28.04.2022,
23.05.2022 and 23.06.2022 in favour of others, including various
sister concern companies of respondent No.01-Company named Aziz
Al Kaiser (respondent No.02) held 1,89,00,000 (Bonus shares).
Tabassum Kaiser (appellant) held 21,00,000 (Bonus shares). Star
Particle Board Mills Limited held 1,95,25,000 (ordinary shares).
Partex Furniture Industries Limited held 32,45,000 (ordinary
shares). Softavion Limited held 18,00,000 (ordinary shares), Lava
Electrodes Industries Limited held 70,00,000 (ordinary shares). 3
Partex Laminates Limited held 2,15,20,000 (ordinary shares). Star
Gypsum Board Mills Ltd held 39,00,000 (ordinary shares). CBC
Capital & Equity Management Limited held 90,00,000 (ordinary
shares). Triple Apparels Limited held 25,10,000 (ordinary
shares). Oishee Agrotech Limited held 200,000 (ordinary shares)
totalling 8,97,00,000. The appellant was absolutely in the dark
about when and how the aforementioned allotments were made by
respondent No.01-Company as the appellant never attended any
Board of Directors Meeting or shareholders meeting of the company
where the aforementioned allotment issues were discusse. The
appellant recently came to know that respondent No.02 is planning
to oust the appellant from the Board of Directors of respondent
No.01-Company and is secretly taking steps in this regard. The
appellant carried out a search within the records of the RJSC and
came to know that respondent Nos.01 and 02 along with other
respondents, in connivance with each other, have filed as many as
4 sets of Form-XV Return of Allotment dated 30.03.2022,
28.04.2022, 23.05.2022 and 23.06.2022 allotting a total
8,97,00,000 shares of the company to respondent Nos.02-11 and the
appellant. As a result of the said illegal allotment, the
shareholding percentage of the appellant within respondent No.01
has been diluted to 2.34% from 10%, which effectively means that
her shares within the company has been illegally brought under
the statutory threshold of 10% shares, which is required to take
certain actions as a minority shareholder. The appellant further
came to know that respondent No.02, in connivance with respondent
Nos.03, 04, 07, 08 and 10, purportedly held an illegal Extra-
ordinary General Meeting (EGM) of respondent No.01-Company on
01.06.2022 wherein they took decision to convert respondent
No.01-Company into a public limited company and also amended the
articles of association of the company. On perusal of the said
minutes of the EGM dated 01.06.2022 from the office of respondent 4
No.13 and it transpires that the appellant has been shown as an
attendee in the said meeting and in the Signature Box beside her
name '-Sd-' has been shown but she never attended the said EGM
dated 01.06.2022 and signed the minutes. The appellant is
apprehending that her signature has been forged by respondent
No.02 in connivance with the other respondents. In the said
purported AGM, the authorized share capital of the company has
been increased to taka 20,00,000,000/- (Taka two hundred crore)
divided into 20,00,00,000 (twenty crore) ordinary shares of taka
10 each. Thereafter, the appellant attended a meeting dated
08.08.2022 with respondent No.02 at the office of respondent
No.01 and in that meeting, the appellant vehemently raised
objection to the alleged allotment of shares in favour of
respondent Nos.02-11 and also requested respondent No.02 to
immediately dissolve the illegally constituted board with the so-
called newly appointed Directors and also requested the company
secretary of respondent No.01 to note down the objections and
dissents in the minutes of the meeting. Thereafter, the appellant
sent an email dated 14.08.2022 to the company Secretary of
respondent No.01 and respondent No.02 mentioning her complaints
and dissents whereupon the appellant received an email dated
03.11.2022 from the company Secretary with draft minutes of the
meeting dated 08.08.2022. The appellant was completely taken
aback upon checking the contents of the draft minutes of the
meeting dated 08.08.2022 as none of her objections and dissents
were recorded therein. The purported increase of shares and
allotment of the same beyond the participation and knowledge of
the appellant which is in violation of 155 of the Act, 1994, and
as such, the share register is required to be rectified.
Respondent No.01 by filing affidavit-in-opposition stated
that at the time of incorporation of respondent No.01-company, 5
the authorized share capital was taka 10,00,00,000 (ten crore),
divided into 10,00,000 (ten lac) ordinary shares of taka 100
each. The promoters of respondent No.01-company named Aziz Al
Kaiser, respondent No.02 and Aziz Al Mahmood (brother of
respondent No.02) held 25,000 and 4,500 shares respectively in
the company. In December, 2017, Aziz Al Mahmood executed Form-117
and affidavit to transfer his entire shareholding to his brother,
respondent No.02, Aziz Al Kaiser. Among those 4,500 shares, 3,000
ordinary shares were gifted to the appellant by respondent No.02
without any consideration, pursuant to which, the appellant
became the owner of 10% of the total shareholding in respondent
No.1-company. The appellant and respondent No.02 are husband and
wife having married in 1993 and have three sons of whom two are
adults and present Directors of the Board of respondent No.01-
Company, representing respondent Nos.03 and 04 companies.
Respondent Nos.03, 04, 07, 08 and 10 are sister concerns of
respondent No.01-Company belonging to the renowned Partex Star
Group of Companies, which represents the legacy of late M. A.
Hashem. The companies of this group, including respondent Nos.03,
04, 07, 08 and 10, have common shareholders who are family
members, including the appellant and respondent Nos.02. In fact,
the shares were transferred to the appellant for holding the same
on trust for the benefit of respondent No.02, and eventually for
the children of the appellant and respondent No.02. In order to
establish and run respondent No.01-Company profitably and to meet
the insufficiency of capital, both the shareholders of respondent
No.01-Company mutually decided to obtain intercompany loans from
other companies of the Partex Star Group based on the
understanding that eventually these loans would be converted into
equity. As on 30.06.2021, the total outstanding intercompany loan
of respondent No.01-Company was taka 45,96,50,000/-. With the
loans obtained as aforesaid, respondent No.01-Company established 6
its factory in Madanpur, Bandar, Narayanganj upon purchase of
around 5 acres of land which currently have approximately 700
employees. As such, considering the current state of affairs of
respondent No.01, the company owes its existence to the
intercompany loans of the group companies. In the course of
business, in order to expand respondent No.01-company's business
and pursue its objectives in a more efficient and productive
manner, both the shareholders mutually decided to raise capital
through an Initial Public Offering (IPO) of shares in the stock
market upon converting respondent No.01-Company into a public
company limited by shares. One of the preconditions for obtaining
approval from the Bangladesh Securities and Exchange Commission
(SEC) for listing is that the company seeking to make an IPO must
be a public company limited by shares which requires minimum 7
shareholders in view of the provisions of section 5 read with
section 2(1) (r) of the Companies Act, 1994. Hence, the existing
shareholders decided to convert the intercompany loans into
equity as per their initial understanding at the time of
obtaining these loans. Accordingly, following all formalities,
the abovementioned intercompany loans were converted into equity
by issuing, 50,70,000 ordinary shares to the creditor companies
which are linked to the Partex Star Group with full consent of
the appellant.
In addition to the above, a further 18,000,000 ordinary
shares were decided to be issued to four other companies that are
not linked to the said group as placement. Due to such issuance
and allocation of shares to the creditor companies, the
shareholding percentage of both the appellant and respondent
No.02 have diluted in a proportionate manner. Being a Director of
respondent No.01-company, the appellant attended a board meeting
held on 08.08.2022 where the company passed, among others, a 7
resolution for raising fund through initial public offering under
fixed price method. In the said board meeting, the other
Directors from the shareholder-companies as well as the
Independent Director were present. In fact, Amman Al Aziz,
nominee Director of a shareholder company was appointed the new
Chairman for respondent No.01-Company in the said board meeting.
The appellant did not raise any concerns or reservation on the
shares issued to these creditor companies or their presence in
the board meeting or the appointment of the Chairman from the
other shareholder company in the said board meeting, which
clearly shows that the appellant was well aware of the fact that
the company has issued shares to these companies with her full
consent and that the company has been converted into a public
limited company and for which IPO process is going on for raising
fund through capital injection but the appellant completely
suppressed these material facts in the petition. After the
decision in the board meeting dated 08.08.2022 for raising
capital of the IPO, a set of standard documents, e.g.
declarations and other forms were sent to the appellant for
signing onward submission and to take other necessary steps for
raising capital through IPO and also an email was sent by the
company Secretary by reference to the board meeting decision
dated 08.08.2022 requesting her to sign the documents within
26.10.2022 for onward submission of the draft prospectus to the
SEC but the appellant did not sign the documents for which
respondent No.01-company could not file the draft prospectus to
the BSEC resulting in delay in the raising capital through IPO.
This development had been notified to her by the company
Secretary by an email dated 30.10.2022. Due to such negligence
and mala fide action of the appellant, respondent No.1-Company
suffered loss. Accordingly, respondent No.01 Company by a letter
dated 08.11.2022 demanded compensation for the losses caused to 8
the company due to the appellant's actions but instead of taking
responsibility of her actions, the appellant sent a letter dated
15.11.2022 denying her responsibilities and rather blamed the
management and the officials of the company for no plausible
reasons. Nowhere in the said letter, she denied attending the
meeting on 08.08.2022 or dilution of her shareholding or presence
of the other Directors nominated by other shareholders or
appointment of the Chairman from a shareholder company or the
company's decision to raise capital through IPO. As such, it is
well established that the appellant was well aware of the fact
that the company has issued shares to other shareholders and new
Directors have been appointed and that the company has been
converted into a public limited company. Respondent No.01-Company
for the purpose of IPO made an application date 08.08.2022 to the
SEC praying for an exemption from complying with rule 3(2)(p) of
the Bangladesh Securities and Exchange Commission (Public Issue)
Rules, 2015 and upon assessment of the application, audit report
of respondent No.01-company as well as other relevant documents,
the SEC granted respondent No.01-company exemption. The appellant
and respondent No.02 married each other on 26.08.1993. Respondent
No.02 transferred his shares to the appellant as a token of love
to his wife without any consideration of whatever nature based on
the understanding that those shares would be held on trust for
their children. The appellant was merely enjoying the social
status deriving from being a shareholder and Director in Partex
Group Companies as wife of respondent No.02. However, after 27
years of happy marital life, for the last 2-3 years, the
appellant involved herself into an extra-marital affair with a
foreigner. Upon discovery with sufficient proof, respondent No.02
along with their sons confronted the appellant, which was the
first breakdown point in their relationship. While respondent
No.02 was putting efforts for reconciliation for the sake of 9
their children, the appellant suddenly started to claim for 50%
of the total assets of respondent No.02. As part of the
disgraceful and reprehensible plan, the appellant has filed as
many as 4(four) criminal cases against respondent No.02 based on
unfathomable allegations only to damage the social status of
respondent No.02 and the Partex Star Group resulting in mounting
pressure on respondent No.02 to make more gifts to her estranged
wife, i.e. the appellant and as such, the instant application is
liable to be dismissed.
Respondent Nos.03, 04, 07, 08 and 10 in their affidavit-in-
opposition stated that following the disputed allotments, the new
shareholders of respondent No.01-Company appointed new Directors
on the Board. The appellant as Director participated in a Board
Meeting on 08.08.2022, in which the Board took decision to raise
capital through an Initial Public Offering (IPO) upon application
for approval to Bangladesh Securities and Exchange Commission
(BSEC). The appellant never objected to this decision. Though in
an affidavit-in-reply, she has referred to an email of 14.08.2022
objecting to certain of the proceedings of the meeting of
08.08.2022, she did not object crucially to the decision to raise
capital through the IPO which means that she had no objection to
respondent No.01-Company being converted to a public Company
through allotment of shares to additional shareholders, and
accordingly, is now barred by the doctrine of waiver,
acquiescence and estoppel from objecting to the allotment of the
shares. Subsequently, the appellant refused to sign formal
documents required for making the application to BSEC for
approval. When the Chairman of the company took issue then the
appellant by a letter dated 15.11.2022 complained about the delay
in providing her with the documents, but she did not object to
the decision to raise capital through the IPO and as such, she is 10
barred by the doctrine of waiver, acquiescence and estoppel from
objecting to the allotment of the shares. The shares have been
allotted to respondent Nos.03, 04, 07, 08 and 10 through
conversion of loans provided by these companies to respondent
No.01. These loans are documented and borne by the accounts of
the said companies and banking transactions. Hence, there is no
dispute about the fact that respondent No.01 has in fact received
consideration for the shares. The appellant is a shareholder and
Director in all of these companies and there is no record of her
having objected with any of these companies about them having
subscribed to these shares. In the event, the petition is
allowed, and rectification as prayed for is effected respondent
No.01-Company would revert to a shareholding structure where
respondent No.02 would have 90% of the shares while the appellant
10% and the appellant will never be in a position to object to
the raising of capital through issue of shares. All that she will
achieve, is effecting a pre-emptive right to take up any or all
of these shares. Yet, in the instant application, she is not
offering to take up any or all of the shares allotted to the new
shareholders. It is stated that where an applicant seeks
rectification of the share register against an allotment of
shares made for good consideration at the instance of the
majority shareholders of a company upon a plea that the
applicant's pre-emptive rights have not been accorded due
respect, it is incumbent upon such applicant to offer to take up
any or all of those shares upon paying off the shareholders whose
shares are being affected by the rectification which has not been
done.
The High Court Division having heard the parties and on
perusal of the materials on record dismissed Company Matter
No.483 of 2022 by the judgment and order dated 02.03.2023. 11
Being aggrieved by and dissatisfied with the aforesaid
judgment and order dated 02.03.2023, the petitioner of the
company matter filed the Civil Petition for Leave to Appeal No.
1404 of 2023 before this Division. Accordingly, leave was granted
on 20.08.2023. Hence, the appeal.
Mr. Probir Neogi, learned Senior Advocate, Ms. Nihad Kabir,
learned Senior Advocate and Mr. Md. Asaduzzaman, learned Senior
Advocate have appeared for the appellant.
Their submissions are as follows:
i) The High Court Division has committed
illegality by passing the impugned judgment and order
without at all taking into consideration the strict
requirements of section 155 of the Act, 1994, inasmuch
as the alleged allotment of shares by the respondents
without complying with the requirements of section 155
of the Act, 1994 is absolutely unlawful, thus rendering
the purported issuance and allotment of the shares in
question ipso facto illegal and void ab initio;
ii) the High Court Division most erroneously
dismissed the company matter on the basis of some
alleged activities of the appellant, such as,
attendance at a meeting dated 08.08.2022 and subsequent
letter dated 15.11.2022 to respondent No.1, without
even taking into consideration that mere attendance in
the so-called Directors' Meeting dated 08.08.2022 of
respondent No.1 and the subsequent letter dated
15.11.2022 by the appellant, both after the fact of the
illegality having been committed by the respondents,
cannot tantamount to waiver/acquiescence of her
statutory right to get notice of board meeting and
participate in the decision of "existing directors" to
be made for the issuance of further shares under 12
section 155 of the Act, 1994, and cannot mitigate in
any way the failure to comply with the law in section
155 of the Companies Act, 1994;
iii) the High Court Division has committed
illegality in passing the impugned judgment and order
overlooking the ratios settled by this Division in the
case of Jamuna Television Ltd. and another-Vs-Government of Bangladesh
and others (reported in 65 DLR (AD) 253) to the effect, amongst
others, that- (i) there is no estoppel against statute
or there is no application of estoppel to prevent the
performance of any constitutional or statutory duty
(Para 28); (ii) the doctrine of promissory estoppel
cannot be invoked against public interest or any
stature. The public interest prevails over promissory
estoppel (Para 29); and (iii) the doctrine of
promissory estoppel cannot be invoked to carry out a
representation which is contrary to law or in the
abstract (Para 32), and therefore the impugned judgment
and order seriously suffers from illegality and
infirmity;
iv) the High Court Division has committed
illegality in not appreciating that new allotments were
done illegally and with ill-motive to harm and
prejudice the interests of the Appellant, who is a
minority shareholder in the Respondent No. 1 Company
and this is a classic case of severe oppression of a
minority shareholder of the Company and an unlawful act
by the Respondent No. 1 Company and Respondent No. 2 to
illegally bring the Company absolutely under their
control and the Appellant fears that this is an attempt
to ultimately remove the Appellant from the Respondent 13
No.1 Company and deprive her of her rights as a
shareholder and director of the said Company. The
appellant was never notified of the directors'/
shareholders' meetings where the resolutions for the
purported issue/allotment of further shares were
passed, never attended those so-called purported
meetings, which could not be held with a quorum in her
absence in any way as she was one of only two
directors/shareholders of the Respondent No.1 Company
at all material times, and as such, these meetings have
not been held in compliance with the articles of
association of the company but without taking into
consideration any of the factors mentioned above, the
High Court Division has passed the impugned judgment;
v)the High Court Division has failed to appreciate
that the purported allotment of shares in Respondent
No, 1 Company in the name of respondents No. 3 to 11
are ex-facie in violation of the provisions set forth
in the Articles of Association of the respondent No. 1
Company, which is the constituent document of a
company, and binding on the Company and its Directors;
vi) the purported allotment of shares, pursuant to
which the shareholding status of the appellant was
diluted from 10% to 2.34%, were done illegally and with
ill-motive to discriminate against and prejudice the
interests of the appellant, who is a minority
shareholder in respondent No.1-Company and is an
attempt by respondent No.1-Company and respondent No.2
to bring the Company absolutely under their control and
to ultimately remove the appellant from the Company and
by passing the impugned judgment and order of the High 14
Court Division has rubberstamped the illegal activities
of the respondents and as such, the impugned judgment
and order is bad in law and is liable to be set aside.
Per contra Mr. A.M. Amin Uddin, learned Senior Advocate,Mr.
Tanjibul Alam, learned Senior Advocate, Mr. Md. Mostafizur Rahman
Khan, learned Senior Advocate have appeared for Respondent Nos.
1-4, 7-8 and 10.
The main contention of the learned Advocates for the
respondents are as follows:
i) It is an established principle of law that the
Court can, in an appropriate case, decline to exercise
its discretionary power under Section 43 of the
Companies Act, 1994 if it finds that the applicant has
disentitled herself of the relief due to suppression of
material facts, acquiescence, waiver, delay or laches
etc. As such, the relief under section 43 of the
Companies Act, 1994 is not ex debito justitiae and equitable in
nature. Hence, even if for the sake of argument, a
technicality with respect to the compliance of section
155(1) of the Companies Act, 1994 is established,
considerations such as waiver, acquiescence, estoppel
etc. would be relevant while granting or refusing the
same as has been rightly identified by the High Court
in the present case.
In this connection the case of Mukundlal Manchanda v
Prakash Roadlines Limited (ILR 1994 Karnataka 1990; Bellesby v Rowland and
Marwood's Steamship Co. Ltd. 2 Ch. 265; Muniyamma v Arathi Line Enterprise
PV Limited has been referred.
ii) upon participating in the board meeting dated
08.08.2022 along with other directors from the newly 15
subscribed shareholder companies and by consenting to
go in the IPO event, the appellant had, in effect,
acted upon the impugned subscriptions in question. All
the facts of the case, as has been taken into
consideration in detail in the impugned judgment,
not only show acquiescence on the bringing about the
situation which she sought to have altered by means of
proceeding under section 43 of the Companies Act, 1994.
As such, the High Court Division has rightly declined
to exercise its powers under the said provision of law
as the appellant before it had already disentitled
herself of the said relief;
iii) there is no estoppel against statute or there
is no application of estoppel to prevent the
performance of a constitutional or statutory duty as
settled by this Division in the case reported in 65 DLR
(AD) 253 and as such there is no scope to rely on this
ratio by taking it out of context to assert that such
would be applicable in the present case. In any event,
the doctrine of waiver, acquiescence and estoppel in
the present case does not operate against the
application of Section 155(1) of the Companies Act,
1994, rather prevents the appellant from insisting upon
her rights granted by the said provision of law;
iv) the contentions of the appellant that her
shares were diluted from 10% to 2.34% with an ill-
motive to discriminate against and prejudice her
interests are completely baseless and misconceived, in
fact, the Appellant was well aware that the respondent
No. 1 company had taken loans from other companies of
the Partex Star Group for its survival and that such 16
loans would converted into equity eventually; thus the
dilution complained of is the direct result of the
conversion of the said loans into equity;
v) the appellant is asserting her preemptive
rights under section 155(1) of the Companies Act, 1994,
till date, she has never offered to take up of the
shares allotted to the proportion of her shareholding;
which makes it clear that this appeal has been filed
with the sole motive to halt the progress of the
respondent No. 1 company in raising capital through
IPO, for collateral purpose of holding the respondent
No. 1;
vi)the appellant concealed material facts relating
to her participation in the meeting dated 08.08.2022
along with other shareholders whose subscription she is
challenging, her acting upon the impugned subscription
in question, her consent for the respondent No. 1
company to go to IPO knowing fully well that the
disputed subscriptions actually took place to
facilitate the company going into IPO, the respondent
No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's
claims by shifting the burden on the management of the
company without denying her prior given consent for IPO
or raising any objection to the allotted shares at any
point in time prior to filing the application; hence,
the appellant is not entitled to get any relief from
this Court, as the relief under section 43 of the
Companies Act, 1994 is equitable in nature;
vii) the appellant had the right to participate in
the disputed issuance of shares only to the proportion 17
of her shareholding, i.e., 10% by paying consideration
at face value, and that although the appellant is
asserting her preemptive right to be offered the
allotted shares she has till date, never offered to
take up any of the shares, and the present Appeal is
her attempt to belie the respondent No.l's attempt to
raise its capital, for collateral purposes and
existence of such collateral purposes has been
established to the satisfaction of the High Court
Division and no evidence has been adduced by the
appellant in the instant proceeding to rebut such
conclusion;
viii) it is not disputed that immediately prior to
the first disputed allotments, the appellant held only
10% of the issued shares of the respondent No. 1
Company, with the respondent No. 2, as the only other
shareholder, leaving 90% of the shares, the legal
significance of which is two-fold, being first, the
appellant, as a minority, was lever in a position to
resist a decision for further allotment of shares, or
resist conversion of the company to a public company,
which acts, in themselves, are not unlawful, and
secondly, all that would have been attained had the
required formalities been adhered to, which she does
not admit, is that she would have a pre-emptive right
to take up 10% of the allotted shares upon payment of
subscription.
We have considered the submissions of the learned Advocates
appearing for the parties concerned, perused the impugned
judgment and order of the High Court Division and other materials
as placed before us on record. 18
In the instant appeal, the appellant has tried to assail the
impugned judgment mainly on the ground that:
(i) the appellant was not aware of the allotment of
shares to the respondent Nos. 3-11;
(ii) the respondent No. 2 is planning to oust the
appellant from the management of the respondent No 1 company
and is secretly taking steps in this regard;
(iii) the appellant was not provided with the minutes
of the meetings of the respondent No. 1 company;
(iv) the shares allotted to the respondent Nos.3-11
were not first offered to the appellant in violation of the
section 155 of the Companies Act, 1994;
(v) the appellant was never aware of any of the
meetings for issuance of further shares or increase of
shares or allotment of shares to the respondent Nos. 3-11.
Based on the above arguments and allegations, the petitioner
asserts that the names of the respondent Nos. 3-11 have been
entered into the register of members of the respondent No.1
Company illegally and in violations of the provisions of the
Companies Act, 1994, as such, according to the appellant,
the register of members of the respondent No. 1 Company is
required to be rectified upon deleting/omitting their names
from the register of members.
Upon perusal of the impugned judgment and order, it
transpires that the High Court Division addressed and decided all
the above issues having considered materials on record as well
the relevant law and principle law enunciated in different cases.
The High Court Division having considered the provision of
section 155 of the Companies Act, 1994 coupled with the facts and
circumstances of the present case has held that:-
“But in the instant case it is already found that
transfer of shares has been affected within knowledge 19
of the petitioner and with her concurrence and hence,
155 (2) of the Companies Act, 1994 will be applicable
and above quoted decisions (34 BLD, 91, in the case of
Md. Shirajul Haque vs Apollo Ispat complex Limited) has no relevance
here.”
It is fairly established that the relief under
section 43 of the Companies Act, 1994 is not ex debito
justitiae, rather the said relief is equitable in
character and as the petitioner did not disclose all
the materials facts, she is not entitled to get relief
in the instant matter.”
We have no hesitation to hold that the above findings of the
High Court Division are based on sound principle of law. Section
155 of the Companies Act, 1994 runs as follows:
“155. Further Issue of capital.—(1) Where the directors decided to
increase the subscribed capital of the company by issue of further shares within
the limit of the authorised capital—
(a) such further shares shall be offered to the members in proportion, as
nearly as circumstances admit, to the capital paid up on the existing
share held by such member, irrespective of class, at the date of the
offer;
(b) such offer shall be made by notice specifying the number of shard
offered and specifying the time limit, not being less than fifteen days
from the date of the offer, within which the offer if not accepted, will
be deemed to have been declined;
(c) after the expiry of the time specified in the notice aforesaid, or on
receipt of earlier intimation from the members to whom such notice
is given that he declines to accept the shares offered, the directors
may dispose of the same in such manner as they may think most
beneficial to the company.
(2) Notwithstanding anything contained in sub-section (1), the further shares
aforesaid may be offered to any person whether or not those person include its
person referred to in clause (a) of that sub-section in manner whatsoever.”
If we read meticulously, the above provision of law then it
will be clear that in view of the provision of subsection (2), 20
the provision of subsection (1) of section 155 of the Companies
Act cannot be said Sine Qua Non.
It is an established principle of law that the Court can, in
an appropriate case, decline to exercise its discretionary power
under Section 43 of the Companies Act, 1994 if it finds that the
appellant before it has disentitled herself of the relief for any
reason like suppression of material facts, acquiescence, waiver,
delay or laches etc. The section in the Indian Companies Act
corresponding to section 43 of the Companies Act, 1994 is section
155. In the case Mukundlal Manchanda v Prakash Roadlines Limited (ILR 1994
Karnataka 1990), the High Court of Karnataka, India on a very
identical scenario held in paragraph 16, "A plain reading of the provisions
reproduced above shows that the same vests the Court with the power to direct rectification, the
exercise of which power is discretionary with the Court as is apparent from the word 'may' used
in this Section. The Court can in an appropriate case decline to exercise its powers under
Section 155 if it finds that the petitioner before it has disentitled himself of the said relief for any
reason like suppression of material facts, acquiescence, delay and laches etc. Relief envisaged by
Section 155 is equitable in nature, and all such considerations as are relevant to the grant or
refusal of any such relief would be attracted to proceedings under the said provision.”
In the case Bellesby v Rowland and Marwood's Steamship Co. Ltd. 2 Ch. 265
(quoted in paragraph No. 18 of the Mukundlal Manchanda judgment
referred above), it was held, "In considering an application for rectification the
Court has always had regard to the lapse of time and to any facts and circumstances indicating
acquiescence in the existing state of things by those on whose behalf the application is made to
disturb it.". In another case Muniyamma v Arathi Line Enterprise PV Limited
(quoted in paragraph No. 19 of the Mukundlal Manchanda judgment
referred above), it was held, "...Whether in a particular case relief should be
granted or not, because the jurisdiction is discretionary as the word used is 'may' in Section 155
of the Act would depend upon the facts and circumstances of the case but the exercise of
jurisdiction cannot be refused on the ground that it involves complicated questions of law and
facts Of course, the propriety o f the petitioners and their conduct having a bearing on the 21
subject matter o f the petition would be relevant to the decision as to whether the discretion
should or should not be exercised" (underlines added).
As such, from perusal of the above case laws, it is clear
that the relief under section 43 of the Companies Act, 1994 is
not ex debito justitiae and that relief under section 43 is equitable in
character, and that considerations such as waiver, acquiescence,
estoppel etc. would be relevant while granting or refusing the
same. By participating in the board meeting dated 08.08.2022
along with other directors from the newly subscribed shareholder
companies and by consenting to go in the IPO event, the appellant
has, in effect, acted upon the impugned subscriptions in
question. All the above background facts not only show
acquiescence on the part of the appellant, but also her active
participation in bringing about the situation which now she seeks
to have altered by means of this proceeding under section 43 of
the Companies Act, 1994. As such, the appellant is now barred by
the principle of estoppel from seeking relief from this Court.
Moreover, the relief under section 43 is of equitable nature
and it is an established principle of law that "he who comes to equity,
must come in clean hands". In the instant case, the appellant concealed
material facts relating to her participation in the meeting dated
08.08.2022 along with other shareholders whose subscription she
is challenging, her acting upon the impugned subscription in
question, her consent for the respondent No. 1 company to go to
IPO knowing fully well that the disputed subscriptions actually
took place to facilitate the company going into IPO, the
respondent No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's claims by
shifting the burden on the management of the company without
denying her prior given consent for IPO or raising any objection
to the allotted shares at any point in time prior to filing the 22
application. All these facts manifestly show that she has
concealed material facts and come before this Court without clean
hands, as such, the appellant is not entitled to any relief from
this Court.
The position relating to the equitable nature of remedy
under section 43 of the Companies Act, 1994 is clear. It is also
an established principle of law that a person may waive a right
either expressly or by necessary implication and that such person
may in a given case disentitled himself from obtaining an
equitable relief particularly when he allows a thing to come to
an irreversible situation and that is a person, through his
conduct, has waived his right to an equitable remedy, such
conduct precludes and operates as estoppel against him with
respect to asserting the right (Babulal Badriprasad Varma v Surat Municipal
Corporation and ors. AIR 2008 SC 2919). As such, the argument made by the
learned Advocate of the appellant in the course of hearing that
her right could not have been waived or that acquiescence could
not have taken place is not correct.
The judgment and order of the this Division in the case
Jamuna Television Ltd. v Bangladesh (65 DLR (AD) 253) was passed against the
judgment and order dated 20.05.2010 passed by the High Court
Division in Writ Petition No.8100 of 2009. The appellant relied
on paragraph No.28 of the judgment, which states, "The doctrine of
promissory estoppel cannot be invoked against public interest or any statute."
It is our considered view that the principles laid down in
this judgment are applicable in public law matters, whereas the
instant case is a company matter, hence, a private law dispute.
The case law addresses the principle of promissory estoppel
against statute; not waiver, acquiescence and estoppel. The
concept of the principles ‘waiver, acquiescence and estoppel’ and
‘promissory estoppel’ is vastly distinct in law. As per the 23
Black's Law Dictionary, ‘acquiescence’ refers to ‘a person's
tactic or passive acceptance; implied consent to an act’;
‘waiver’ refers to 'the voluntary relinquishment or abandonment-
express or implied-of a legal right or advantage' and ‘Estoppel’
refers to ‘a bar that prevents one from asserting a claim or
right that contradicts what one has said or done before or what
has been legally established as true’. On the other hand, as per
the definition given in the Black’s Law Dictionary, ‘Promissory
estoppel’ refers to ‘the principle that a promise made without
consideration may nonetheless be enforced to prevent injustice if
the promisor should have reasonably expected the promisee to rely
on the promise and if the promisee did actually rely on the
promise to his or her detriment.’
In the instant case, it is not the case of promissory
estoppel. All the background facts and conducts of the appellant
not only show acquiescence and waiver on part of the appellant,
but also her active participation in bringing about the situation
which she now seeks to have altered by means of this proceeding.
As such, it is argued by the respondent No. 1 that the appellant
has, in effect, waived and acquiesced to the issuance and
allotment of shares by her active participation in the board
meeting and other subsequent conducts and hence, now estopped
from challenging the same.
With regard to the issue that the appellant’s shares in the
Company has been diluted from 10% to 2.34%, the High Court
Division observed that-
“..........but fact remains that when shares have
been increased and allotted she also got bonus shares
proportionately along with respondent No.2, but her
percentage of shares diluted due to allotment of shares
to respondent Nos. 3-10 and, hence, her allegation of 24
mala fide in dilution of her shares is also not
sustainable.”
We have no hesitation to concur with the above findings of
the High Court Division.
Having considered and discussed as above, we are of the
opinion that the judgment and order passed by the High Court
Division does not suffer from any illegality or infirmity.
Accordingly, the appeal is dismissed.
There will be no order as to costs.
J.
J.
J.
B.S./B.R./*Words-6,843*
|
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique,
Mr. Justice Md. Shahinur Islam,
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2769 OF 2023
(From the judgment and order dated the 3rd day of August, 2023 passed by the
High Court Division in Criminal Appeal No.248 of 2023).
Debdulal Basu : ..............Petitioner
-Versus-
The State, represented by the
Deputy Commissioner Dhaka and
another
: ..............Respondents
For the Petitioner
: Mr. Dewan Abdul Naser, Advocate,
instructed by Mr. Md. Shafiqul Islam
Chowdhury, Advocate-on-Record
For Respondent No.1 : Mr. A.M. Amin Uddin, Attorney
General with Mr. Sayeem Mohammad
Murad, Assistant Attorney General
appeared with the leave of the Court.
For Respondent No.2 : Mr. Sukumar Kumar Biswas, Advocate
with Mr. Sree Probir Kumar Ghosh,
Advocate, instructed by Mr. Haridas
Paul, Advocate-on-Record
Date of hearing and judgment : The 3rd day of June, 2024
JUDGMENT M. Enayetur Rahim, J: This criminal petition for leave to
appeal is directed against the judgement and order dated
03.08.2023 passed by a Division Bench of the High Court
Division in Criminal Appeal No.248 of 2023 dismissing the
appeal.
The facts, relevant for disposal of the instant criminal
petition for leave to appeal, are that, present victim,
respondent No. 2, Shila Halder being complainant filed a 2
complaint before the Nari-O-Shishu Nirjatan Daman Tribunal
No.8, Dhaka, against the present accused-appellant-petitioner
under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000 (amended in 2003) alleging inter-alia that the accused-
petitioner on 23.12.2017 upon showing respect to Hindu
religious idol and claiming married her started conjugal life
with the complainant in a rented house at Mirpur. Thereafter,
while she asked the accused-petitioner to take her into his
village home, the accused-petitioner refused to do so. The
complainant then came to know that the accused-petitioner is
a married person having another wife and child. On 05.01.2022
at about 10:00 p.m. the accused-petitioner lastly caused
physical relation with the complainant. The complainant to
that end went to the Mirpur Model Police Station for filing a
case against him, but the police refused to register the case
and advised her to file the case before the Court, then she
was compelled to file the petition of complaint being No. 118
of 2022 before the Nari-O-Shishu Nirjatan Daman Tribunal No.
8, Dhaka, on 28.07.2022.
The learned Judge of the Tribunal upon recording the
statement of the victim-complainant had directed the Police
Bureau of Investigation (PBI), Metro. (North), Dhaka to
inquire into the matter and to submit a report thereto.
Upon inquiry, the PBI submitted a detail report on
13.11.2022. Upon receiving the said inquiry report the
learned Judge of the Tribunal took cognizance of the offence
against the accused-petitioner under section 9(1)of the Nari-
O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003).
Then, the accused-petitioner filed an application for
anticipatory bail before the High Court Division and the High 3
Court Division enlarged him on anticipatory bail and after
obtaining bail the accused-petitioner filed an application
under section 265(C)of the Code of Criminal Procedure before
the Tribunal for his discharge from the case. However, the
Tribunal rejecting the said application vide its order dated
02.01.2023 framed charge against him under section 9(1) of
the Nari-O-Shishu Nirjatan Daman Ain, 2000.
Being aggrieved by the said refusal order, the accused-
petitioner filed Criminal Appeal No.248 of 2023 before the
High Court Division, which was admitted on 31.01.2023 and
after hearing the Appeal the High Court Division dismissed
the Appeal by the impugned judgment and order. Hence, the
accused has filed the instant criminal petition for leave to
appeal.
Mr. Dewan Abdul Naser, learned Advocate appearing for
the accused-petitioner submits that the inquiry report
prepared by the inquiry officer though it was mentioned that
prima facie case was found against the accused-petitioner
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000, but in fact nothing was found on inquiry to the effect
that the accused petitioner raped her within the meaning of
section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000(as
amended in 2003).
Learned Advocate also submits that the High Court
Division failed to consider that after examining the
complainant doctor prepared a report wherein the doctor
opined that “considering physical examination findings and
microbiological report, I am of the opinion that the victim
named ‘Shila Halder’ has no sign of forceful sexual
intercourse found on her body”, and as such judgment and 4
order passed by the High court Division is liable to be set
aside. He further submits that the High Court Division failed
to consider that the sexual intercourse with the consent of
the adult woman does not constitute offence of rape under
section 9(1) of the Nari-O-Shishu Nirjatan Damon Ain, 2000
(as amended 2003).
Learned Advocate finally submits that the Nari-O-Shishu
Nirajtan Tribunal illegally took cognizance of the offence on
the basis of inquiry report submitted by PBI which is not
permitted as per section 27(1 Ka) of the Nari-O-Shishu
Nirjatan Daman Ain, and, as such the judgment and order
passed by the High Court Division is liable to be set aside.
Mr. A.M. Amin Uddin, learned Attorney General appearing
for respondent No. 1 made submissions in support of the
impugned judgment and order of the High Court Division.
Mr. Sukumar Biswas, learned Advocate appearing for the
complainant-respondent No. 2 also made submissions supporting
the impugned judgment and order of the High Court Division.
He further added that since the medical examination was held
long after the date of occurrence and, as such, recent sign
of rape may not be there, but the medical report itself shows
that the hymen of the victim was found ruptured and there
have been multiple old tears present and, therefore, those
materials on record shows that the accused petitioner upon
giving false assurance as of marrying the victim, has
committed rape on her for several times and as such, in the
medical report the above material symptoms were detected.
Learned Advocate for the complainant-respondent further
argued that in the case of rape, only relying upon a part of
medical examination report, even without taking other 5
material evidence on record, relying on the defence plea
cannot claim to be discharged.
Learned Advocate thus seeking dismissal of the leave
petition submits that since charge has already been framed
upon finding prima-facie materials and, as such, at this stage
only upon relying on the defence plea a case of committing
rape under section 9(1) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 (Amended in 2003) cannot be brushed away and the
order of charge cannot be set aside without taking evidence,
at the trial, as per the settled decision of our Apex Court.
We have considered the submissions of the learned
Advocates appearing for the respective parties, perused the
petition of complaint, the impugned judgement, relevant laws
and other materials as placed before us.
In the instant case it is admitted position that the
learned Judge of the Tribunal having found prima facie case
against the accused petitioner framed charge against him
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2003 having considered the facts and circumstances of the
case and materials on record. We find substance in the
submission of the learned Advocate for the complainant-
respondent that at this stage there is no scope to discharge
the accused-petitioner from the charge brought against him
relying on any defence plea or materials, if any.
The learned Advocate for the petitioner having referred
to the words ""mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev Ab¨ †Kvb
e¨w³‡K wb‡`©k cÖ`vb Kwi‡eb Ges..................Ó as contemplated in section 27(1)
(Ka) has tried to convince us that Police Bureau of
Investigation (PBI) will not come within the meaning of "Ab¨ †Kvb
e¨w³Õ and PBI being one of the unit of Police is not permitted 6
to make any inquiry under the Nari-O-Shishu Nirjatan Daman
Ain, 2000 and thus the inquiry on the allegation of the
present case by PBI is without jurisdiction and illegal, and
on the basis of such inquiry report proceeding of the present
case is also illegal and without jurisdiction. In support of
his contention, he relied on the case of Mohammad Khorshed
Alam alias Md. Khorshed Alam vs The state and another,17
SCOB(2023)AD 61, wherein it has been held that:
“Having considered and discussed above, we are of the view that the Tribunal
did not commit any illegality in entertaining the complaint filed by respondent
No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the
Tribunal is satisfied as to the filing of the complaint he can direct the
Magistrate or any other person to make an inquiry with regard to the
allegation. The expression ‘Ab¨ †Kvb e¨w³’ (any other person) does not
include any police officer but, it includes any public officer or any private
individual or any other responsible person of the locality upon whom the
Tribunal may have confidence to conduct the inquiry in respect of the
complaint logged before it.
In the instant case the learned Judge of the Tribunal acted illegally in directing
the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect
of the complaint and, thereafter, taking cognizance on the basis of such inquiry
report has vitiated the entire proceeding.” (Underlines supplied).
To address the above issue let us examine section 27 of
the Nari-O-Shishu Nirjatan Daman Ain, 2000, which runs as
follows:
Ò27| UªvBey¨bv‡ji GLwZqvi|-(1) mve-B݇c±i c`gh©v`vi wb‡¤œ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev
GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU©
e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv_© MÖnY Kwi‡eb bv|
(1K) †Kvb Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU
Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv- 7
(K) mš‘ó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev ‡Kvb e¨w³‡K
wb‡`©k cÖ`vb Kwi‡eb Ges AbymÜv‡bi Rb¨ wb‡`©kcÖvß e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mZ Kvh©
w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb;
(L) mš‘ ó bv nB‡j Awf‡hvMwU mivmwi bvKP Kwi‡eb|
(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš‘ó nq †h,
(K) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb Ges Awf‡hvM mg_©‡b cÖv_wgK
mvÿ¨ cÖgvY Av‡Q †mB †ÿ‡Î UªvBey¨bvj D³ wi‡cvU© I Awf‡hv‡Mi wfwˇZ AcivawU wePviv_© MÖnY
Kwi‡eb;
(L) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB
wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cÖgvY cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj
Awf‡hvMwU bvKP Kwi‡eb;
(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev
Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b
Kwi‡j, KviY D‡jøLc~e©K D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
On a careful examination of section 27(1 ka) coupled with
sub-section (ka) it becomes crystal clear that on receipt of
a complaint supported by an affidavit if the Tribunal is
satisfied upon examining the complainant that after being
refused by the concerned police officer or the authorized
person he/she directly came to the Tribunal in that event an
order for holding inquiry on the complaint can be made.
In the case in hand, the complainant filed the petition of
complaint before the Tribunal supported by an affidavit
stating that statements made in the complaint is true. And in
the complaint it was asserted that she went to the police
station but the police refused to accept her complaint and
the concerned Tribunal being satisfied about the same, upon 8
examining the complainant, directed the PBI to hold an
inquiry into the allegation.
The intention of Section 27 (1 ka) is that before filing
of the complaint before the Tribunal, the complaint should
approach to the concerned police station first, and if he/she
is refused in that event he/she can file the complaint before
the Tribunal with an affidavit in regard to his/her refusal
by the police. This provision of law will come into operation
when the concerned police officer of a particular Police
Station refused to accept or lodge the complainant.
In the earlier case as cited by the learned Advocate for
the accused-petitioner, the Tribunal directed for holding
inquiry to the Officer-in-Charge of the same Police Station,
which refused to lodge the FIR. But in the instant case
Tribunal directed PBI to hold an enquiry on the allegation.
PBI is an independent investigating agency/unit of police.
Officer-in-Charge of a Police Station has no authority on the
PBI inquiry/investigation process. PBI acts on the basis of
PBI Regulations 2016 (cywjk ey¨‡iv Ae Bb‡fw÷‡Mkb wewagvjv, 2016)| In Bidhi 2(9)
it has been stipulated that " wcweAvB m`m¨Õ A_© wcweAvB G wb‡qvwRZ ‡Kvb cywjk m`m¨|'
Bidhi 4 clearly speaks that "wcweAvB Gi †nW‡Kvqv©Uv©m XvKvq _vwK‡e|Õ
So, PBI has an independent and separate identity.
It is true that the word ‘Ab¨ †Kvb e¨w³’ has not been defined
in the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, we can
take aid of General Clauses Act 1897, where the word person
(e¨w³) has been defined as under:
Person-“person” shall include any company or association or body
of individuals, whether incorporated or not: (underline supplied) 9
If we consider the definition of ‘person’ (e¨w³) as
defined in the General Clauses Act coupled with the fact that
the PBI is an independent body/organization/unit of police,
which acts by its own Regulations thus, we have no hesitation
to hold that PBI, is an independent body i.e. body of
individuals and it will come within the meaning/definition of
‘Ab¨ †Kvb e¨w³’ as contemplated in section 27(Ka) of the Nari-O-
Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by
the PBI in this particular case is within the ambit of the
law, and there is no scope to say that PBI or any other
independent law enforcing agency is not authorized to hold
any inquiry or investigation on the allegations made under
the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, the
submission made by the learned Advocate for the petitioner
has no leg to stand.
Further, we have to understand the intention of the
legislature. If we read section 27(1) and 1(Ka) of the Ain
together, then it will be clear that intention of the
legislature is that the police officer who refused to accept
the complaint/FIR he should not be directed again to make
inquire/investigation for fair and impartial
inquiry/investigation and the enquiry or investigation should
be done by any other person (Ab¨ †Kvb e¨w³) other than the said
police officer or any officer of the same Police Station.
This provision has been made for the interest of the
complainant/victim, and an accused or offender is not
entitled to get benefit of it. 10
The facts of the cited case is quite distinguishable
from the facts of the present case and it will not help the
present accused petitioner in anyway.
Having discussed and considered as above, the instant
criminal petition for leave to appeal is dismissed.
J.
J.
J.
B.S./B.R./*Words-2,512*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CONTEMPT PETITION NOS. 29-33 OF 2022
(From the Judgment and order dated 07.04.2022 passed
by this Division in Civil Review Petition Nos. 282, 281,
278, 277 and 280 of 2019 respectively)
Md. Nurunnabi Bhuiyan ....Contempt-petitioner
(In Cont. P. No. 29 of 2022)
Md. Bazlur Rashid Akhonda ....Contempt-petitioner
(In Cont. P. No. 30 of 2022)
Iqbal Kabir Chowdhury ....Contempt-petitioner
(In Cont. P. No. 31 of 2022)
Md. Giasuddin ....Contempt-petitioner
(In Cont. P. No. 32 of 2022)
Monir Ahmed ....Contempt-petitioner
(In Cont. P. No. 33 of 2022)
-Versus-
Md. Abdullah Al Masud
Chowdhury, Secretary,
Security Services Division,
Ministry of Home Affairs,
Bangladesh Secretariat,
Ramna, Dhaka and another
....Contemnor-Respondents
(In all the cases)
For the Petitioners
(in all the cases)
: Mr. Mo hammad Ibrahim Khalil,
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate-on-record
For Respondents
(in all the cases)
: Mr. Md. Shafiqul Islam, Advocate
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-record
Date of Judgment : 04.02.2024
J U D G M E N T
Md. Ashfaqul Islam , J: All these applications are
directed for drawing up proceeding for contempt of
Court against the Contemnor -respondents for
deliberate violation of , and disregard to , the 2
Judgment and order dated 07.04.2022 passed by th is
Division in Civil Review Petition Nos. 277 -278 and
280-282 of 2019.
Upon hearing, this Division directed the
contemnor-respondent Nos. 1 and 2 , Md. Abdullah Al
Masud Chowdhury, Secretary, Security Services
Division, Ministry of Home Affairs and Brigadi er
General ASM Anisul Hauqe, Inspector General of
Prison, Directorate of Priso n to appear in person
before this Division on 20.11.2023 to explain their
conducts on the issue.
Pursuant to that order the contemnor -respondents
appeared before this Division b y filing affidavit-in-
compliance but it appeared from that the order of
this court has been implemented partly. Accordingly,
we direct ed the contemnor -respondents to implement
that order completely.
By submitting another affidavit-in-compliance
today it is contended that as per judgment and order
dated 07.04.2022 passed by this Division in Civil
Review Petition No. 282 of 2019 and subsequent order 3
of ours , they have implemented the same in its
entirety. Delay occurred in respect of compliance of
the judgment and order is bonafide and unintentional
for which they beg unconditional apology and praying
exoneration from the charge of the contempt of court
leveled against them.
Let us first digress how the law of land empowers
the Supreme Court to punish somebody on the charge of
contempt of court.
In aid of all its powers given under the
Constitution, in order to ensure the authoritative
status of the Supreme Court, the Constitution
provides in article 112 that all authorities,
executive and judicial, in the Rep ublic shall act in
aid of the Supreme Court.
It is generally accepted that for the sake of
maintaining proper order and to ensure compliance of
the directions given in judgments, the courts have an
inherent power to punish any person or authority for
contempt. 4
The power of contempt of Court is coextensive
between the two Divisions of the Supreme Court which
can be exercise d equally under Article 108 of the
Constitution. Article 108 clearly clarifies the above
constitutional mandate.
Notably, Appellate Division has also power under
Article 103(2) (C) of the Constitution to impose
punishment on a person for contempt of that division.
Therefore, general power for both the Division s has
been engrain ed in Article 108 of the Constitution .
There is no ambiguity or l ack of clarity on that
score.
In the case of Bangladesh Environmental Lawyers
Association (BELA) Vs. Bangladesh, 2002 22 BLD 534,
A.B.M. Khairul Haque, J., as his Lordship was then,
observed as follows:
"The oath of office of the Judges of the Supreme
Court requires that they will preserve, protect and
defend the Constitution and the laws of Bangladesh.
These are not mere ornamental empty words. These
glorifying words of oath eulogizes the supremacy of 5
judiciary. It is by now well settled that if the
Government or its functionaries fails to act and
perform its duties cast upon them by the laws of this
Republic, the High Court Division of the Supreme
Court, shall not remain a silent spectator to the
inertness on the part of the Government or its
officials, rather, in order to vindicate its oath of
office can issue, in its discretion, necessary orders
and directions, under Article 102 of the Constitution
to carry out the intents and purposes of any law to
its letter, in the interest of the people of
Bangladesh because all powers in the Republic belong
to the people, and their exercise on behalf of the
people shall be effected only under, and by the
authority of the Constitution."
In a recently passed decision in the case of
Mohammad Harun -Or-Rashid vs. Syed Jah angir Alam
LEX/BDAD/0094/2023 while convicting and punishing the
current Mayor of Dinajpur Pourashava this Division
came down heavily on the issue holding that t he
trivia and tradition of this Court are well 6
identified and preserved. One should not forget that
the hands of the Courts are long enough to catch hold
of wrong doers wherever they hide. This is an
unfettered and inbuilt right attached to this Court.
The Supreme Court is one of the pillars of the
State machinery and afforded the dignity and respec t
by everyone, even the high and mighty: and rightly
so. Daily thousands of litigants throng before the
Courts in search of justice. They believe in and
respect the justice delivery system. Without such
reverence the judgments delivered would be
ineffective and the rule of law would be rendered
nugatory. Citizens of the country look to the
judiciary for adjudication of their legal disputes
with their neighbours as well as for enforcement of
their rights enshrined in the Constitution and other
laws of the la nd. However, if the judiciary is to
perform its duties and functions effectively, to live
up to the expectations of the citizens of the country
and remain true to the spirit with which they are
sacredly entrusted, the dignity and authority of the 7
Courts have to be respected and protected by all and
at all costs.
The contempt with which we are concerned in the
instant case relates to violation and disobedience of
the Court ’s order , which in essence means lowering
the dignity of the Court or making comments
calculated to undermine public confidence in the
judges and the justice delivery system.
It indeed baffles us when we see that the
contemnor-respondents after receiving the decision of
the highest judiciary of the country slept over the
matter without implementing the same . They show ed
very much reluctance to comply with the order of this
Court u ntil initiating contempt proceeding against
them. This trend can never be accepted. However, they
finally implemented the decision of this Division
belatedly and beg unconditional apology and pray ed
exoneration from the charge of the contempt of court.
In the light of the above observations, all these
petitions are disposed of. The contemnors-respondents
are hereby exonerated from the charge of contempt of 8
court. However, we strongly caution that in future
not only the present contemnor -respondents but also
all the authorities, executive and judicial, in the
Republic shall be careful to ensure the compliance of
the judgment and order of both the Division s of the
Supreme Court in totality.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
-1-
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CRIMINAL PETITION FOR LEAVE TO APPEAL
NOS.1059-1061 OF 2024
(From the orders dated 30.05.2024 passed by the High Court Division in Criminal
Revision Nos.3178,3180 & 3179 of 2024 respectively)
Pubali Bank Limited ......................Petitioner
(In all the cases)
-Versus-
Chowdhury Shamim Hamid and another .................Respondents
(In all the cases)
For the petitioner
(In all the cases)
: Mr. A. M. Amin Uddin, senior Advocate with
Mr. M. Ashraf Ali, Advocate instructed by Ms.
Madhumalati Chowdhury Barua, Advocate-on-
Record.
For the respondent
No. 1
(In all the cases)
: Mr. M. Sayed Ahmed, senior Advocate with
Zulhas Uddin Ahmed, Advocate instructed by
Mr. Md. Quamrul Islam, Advocate-on-Record.
For the respondent
No.2
(In all the cases)
: Not represented.
Date of hearing and
judgment
: The 11th day of June, 2024
JUDGMENT
Obaidul Hassan,C.J. All these Criminal Petitions for Leave to
Appeal are being disposed of by this common judgment as all the
cases are between the same parties and involve common questions of
law.
All these Criminal Petitions for Leave to Appeal are directed at
the instance of the petitioner-respondent No.1 in each case against
the orders dated 30.05.2024 passed by the High Court Division in
Criminal Revision Nos.3178, 3180 and 3179 of 2024 respectively
enlarging him on bail in each case for a period of one month to enable
him to deposit 50% of the total amount of cheque in preferring appeal
against the sentence of the trial Court.
-2-
The facts necessary for disposal of these criminal petitions are
that the petitioner, Pubali Bank Limited, Dorgagate Branch, Sylhet in
each case filed cases being Kotwali C.R. Case Nos.844 of 2021, 241 of
2022 and 963 of 2021 before the Additional Chief Metropolitan
Magistrate Court, Sylhet against the convict-respondent No.1 under
Section 138 of the Negotiable Instruments Act, 1881 (for short
Negotiable Instruments Act)contending, inter alia, that the respondent
No.1 took total loan amounting Tk.18,00,00,000/-(eighteen crore
only) from the complainant bank. As a part of payment of the said
loan the respondent No.1 issued three separate cheques in each case
amounting Tk.60,48,231/ (sixty lac forty eight thousand two hundred
thirty one only) each on 19.07.2021, 20.07.2021 and 20.03.2021
respectively. Those cheques were presented before the bank on
19.07.2021, 12.12.2021 and 31.08.2021 respectively for encashment, but
the same was dishonoured on the said dates in each case due to
insufficient of fund. Thereafter, the complainant sent legal notice in
each case to the respondent No.1 to make payment of the amount of
cheque failing of which the complainant filed three separate cases
under Section 138 of the Negotiable Instruments Act, 1881 against the
respondent No.1. Subsequently those cases were transferred to the
Metropolitan Sessions Judge, Sylhet and renumbered as Sessions
Case Nos.573, 572 and 574 of 2023 respectively which were
eventually sent to the Joint Metropolitan Sessions Judge, 1st Court,
Sylhet for holding trial. The trial in each case was held in absentia of
-3-
the respondent No.1. Upon conclusion of evidence the trial Court
vide judgments and orders dated 03.04.2024 sentenced and convicted
the respondent No.1 in each case to suffer 1(one) year simple
imprisonment and also to pay fine amounting Tk.60,48,231/ (sixty lac
forty eight thousand two hundred thirty one only). Subsequently on
25.05.2024 the respondent No.1 was arrested and he filed three
separate applications for bail in each case on 26.05.2024 under Section
426(2A) of the Code of Criminal Procedure, 1898 (for short Cr.PC) on
condition of preferring appeal before the appellate Court. Upon
hearing the bail applications the trial Court vide orders dated
26.05.2024 rejected the bail of the respondent No.1. Challenging the
said orders the respondent No.1 filed Criminal Revisions being
No.3178, 3180 and 3179 of 2024 before the High Court Division. Upon
hearing the said cases the High Court Division vide orders dated
30.05.2024 enlarged the respondent No.1 on bail in each case for a
period of 1(one) month, so that he can be able to deposit 50% of the
cheque amount for preferring appeal against the judgments and
orders of conviction and sentence passed by the trial Court.
Being disgruntled with the impugned orders dated 30.05.2024
passed by the High Court Division the complainant-petitioner in each
case filed these Criminal Petitions for Leave to Appeal.
Mr. A. M. Amin Uddin, learned senior Advocate appearing for
the petitioners in each case assailing the orders dated 30.05.2024
passed by the High Court Division contends that Section 138A of the
-4-
Negotiable Instruments Act stipulates for deposit of 50% of the total
cheque amount before filing appeal against the order of sentence
which is mandatory provision. The High Court Division has no
jurisdiction to enlarge the respondent No.1 on bail under Section
426(2A) of the Code of Criminal Procedure on condition of filing
appeal without deposit of the 50% of the total cheque amount. But
the High Court Division most illegally passed the impugned orders
and as such those are liable to be set aside.
On the other hand, Mr. M. Sayed Ahmed, learned senior Counsel
appearing for the respondent No.1 contends that the High Court
Division had given a breathing space by enlarging the respondent
No.1 to enable him to deposit 50% of the total cheque money in filing
appeal against the order of sentence awarded by the trial Court. The
learned senior Counsel contends next that the Negotiable
Instruments Act is a substantive law whereas the Code of Criminal
Procedure is procedural law which will be applicable to decide the
matter under Negotiable Instruments Act and as such the High Court
Division did not commit any illegality in passing the impugned
orders. The learned senior Counsel lastly prays for dismissal of the
Criminal Petitions.
We have considered the submissions of the learned Counsels
for both sides, perused the impugned orders passed by the High
Court Division as well as the materials on record.
It surfaces from the record that in the cases in hand the
respondent No.1 was arrested on 25.05.2024 and sought bail from the
trial Court under Section 426(2A) of the Code of Criminal Procedure
on condition of preferring appeal. However, he did not deposit 50%
-5-
of the total cheque money. The trial Court rejected the bail
applications of the respondent No.1 on 26.05.2024 in each case against
which the respondent No.1 again filed three Criminal Revisions
under Section 439 read with Section 435 of the Code of Criminal
Procedure before the High Court Division. The High Court Division
vide impugned orders allowed the respondent No.1 to go on bail
under Section 426(2A) of the Code Criminal Procedure for one month
so that he can deposit 50% of cheque money for preferring appeal in
each case. In the said backdrop, the moot issue in all the cases is
whether a convict under Section 138(1) of the Negotiable Instruments
Act is entitled to get bail under Section 426(2A) of the Code of
Criminal Procedure without complying with the stipulated condition
of depositing 50% of the total cheque money before preferring appeal
against the order of sentence as prescribed under Section 138A of the
Negotiable Instruments Act.
(underlines supplied by us)
Before delving into the said issue, it is apposite to extract
Sections 138A, 138(1) of the Negotiable Instruments Act vis-à-vis the
provisions of Section 426 of the Code of Criminal Procedure Section
138A of the Negotiable Instruments Act lays down the following-
“138A. Notwithstanding anything contained in the Code
of Criminal Procedure, 1898, no appeal against any order
of sentence under sub-section (1) of section 138 shall lie,
unless an amount of not less than fifty per cent of the
amount of the dishonoured cheque is deposited before
-6-
filing the appeal in the court which awarded the
sentence.”
(underlines supplied by us)
Section 138(1) of the Negotiable Instruments Act provides that-
“138.(1)Where any cheque drawn by a person on an
account maintained by him with a banker for payment of
any amount of money to another person from out of that
account is returned by the bank unpaid, either because of
the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act,
be punished with imprisonment for a term which may
extend to one year, or with fine which may extend
to thrice the amount of the cheque, or with both:
...............................................................................................”
Section 426 of the Code of Criminal Procedure is as follows-
”426.(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in
writing, order that the execution of the sentence or order
appealed against be suspended and, also, if he is in
confinement, that he be released on bail or on his own
bond.
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court Division
in the case of any appeal by a convicted person to a Court
subordinate thereto.
-7-
(2A) When any person is sentenced to imprisonment for a
term not exceeding one year by a Court, and an appeal
lies from that sentence, the Court may, if the convicted
person satisfies the Court that he intends to present an
appeal, order that he be released on bail for a period
sufficient in the opinion of the Court to enable him to
present the appeal and obtain the orders of the Appellate
Court under sub-section(1) and the sentence of
imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.
(2B) Where High Court Division is satisfied that a
convicted person has been granted special leave to appeal
to the Appellate Division of the Supreme Court against
any sentence which it has imposed or maintained, it may
if it so thinks fit order that pending the appeal the
sentence or order appealed against be suspended, and
also, if the said person is in confinement, that he be
released on bail.
(3) When the appellant is ultimately sentenced to
imprisonment, or transportation, the time during which
he is so released shall be excluded in computing the term
for which he is so sentenced.”
(underlines supplied by us)
Section 138A of the Negotiable Instruments Act stipulates that
an amount of not less than fifty per cent of the amount of the
dishonoured cheque shall be deposited by the convict in the Court
which awarded the sentence under Section 138(1) of the Negotiable
Instruments Act if he desires to prefer appeal against the said order
of conviction. Again, according to Section 426(2A) of the Code of
-8-
Criminal Procedure where a person is sentenced to imprisonment not
exceeding one year against which an appeal lies and the convict
intends to prefer an appeal against the order of sentence the Court
has the discretion to release the convict on bail for a period so as to
enable him to present the appeal. However, so long as the convict is
released on bail the sentence of imprisonment shall be deemed to be
suspended.
But the crux of the contention is that whether the convict under
Section 138(1) of the Negotiable Instruments Act can prefer appeal
and get bail for some time if he does not comply with the mandatory
provisions of Section 138A of the Negotiable Instruments Act as
regards deposit of 50% of the total amount of cheque. Suffice it to say
that the Negotiable Instruments Act is a special law and the
legislature’s intent behind the enactment of Section 138 of the
Negotiable Instruments Act is to prevent the drawee from being
defrauded of a negotiable instrument by a drawer of the same and
ultimate object of the law is to instill trust in the mind of the people
and maintain credibility in transacting business on negotiable
instruments. When once certain conditions are stipulated under the
special law the conditions have to be strictly complied with.
Section 138A of the Negotiable Instruments Act has a non-
obstante clause which has an overriding effect over general provisions
contained in the Code of Criminal Procedure as regards preferring
appeal against the order of sentence. The non-obstante clause is a Latin
-9-
phrase meaning ‘notwithstanding’ which is used to indicate that a
particular provision should take precedence over any conflicting
provisions. It precludes the use of contrary interpretations from other
statutes or laws. In the cases in hand, Section 138A of the Negotiable
Instruments Act imposes a restriction on a convict as regards
depositing 50% of the total cheque money before preferring appeal
against the sentence. The condition of depositing the 50% of the total
cheque money and preferring appeal both are dependent on each
other. Thus, where there is no deposit of 50% of the cheque money by
the convict under Section 138(1) of the Negotiable Instruments Act no
appeal will lie. The pre-condition regarding deposit of 50% of the
cheque money cannot be curtailed by application of general law.
It is settled that interpretation of a statute should be based on
the object which the legislature intended to achieve. It has been
observed by Indian Supreme Court in the case of M/S New India
Sugar Mills Ltd. Vs. Commissioner of Sales Tax, AIR 1963 SC 1207
that-
“It is a recognized Rule of interpretation of statutes that
expressions used therein should ordinarily be understood
in a sense in which they best harmonize with the object of
the statute, and which effectuate the object of the
Legislature. If an expression is susceptible of a narrow or
technical meaning as well as a popular meaning, the
Court would be justified in assuming that the Legislature
used the expression in the sense which would carry out
-10-
its object and reject which renders the exercise of its
power invalid.”
(underlines supplied by us)
It is manifest from the overall reading of the Negotiable
Instruments Act that the legislature inserted the provision of deposit
of 50% of the total cheque money before preferring an appeal in the
Negotiable Instruments Act only to streamline the process of
recovery of cheque money so that no person can deceive another as
regards transactions over cheque. Therefore, the pre-condition of
depositing 50% of the total cheque money while preferring appeal as
enshrined in Section 138A of the Negotiable Instruments Act cannot
be given a go-bye which according to the principle of interpretation
of statute must be adhered to. The High Court Division is not given
such latitude to allow a convict under Section 138(1) of the
Negotiable Instruments Act to go on bail for some period on
condition of preferring appeal against the sentence without
depositing 50% of the total cheque money before preferring appeal.
But the High Court Division by the impugned orders misconstrued
the provisions of Section 138A of the Negotiable Instruments Act and
as such those call for interference by this Division.
Of course, it is to be clarified that Section 435 of the Code of
Criminal Procedure enables the High Court Division to examine the
correctness, legality or propriety of any order passed by Court
inferior to it. In the cases in hand, the High Court Division has the
-11-
revisional jurisdiction to examine the legality of the order of rejection
of bail passed by the trial Court under Section 435 of the Code of
Criminal Procedure. Moreover, the High Court Division in dealing
with the revisional application has such power as enumerated in
Section 439 of the Code of Criminal Procedure. However, in
exercising such revisional power as enumerated under Section 439 of
the Code of Criminal Procedure the High Court Division cannot
dispense with the pre-condition of depositing 50% of the total cheque
money before preferring appeal by the respondent No.1. It is to be
noted that Section 426(2A) of the Code of Criminal Procedure is not
contradictory with the provisions of Section 138A of the Negotiable
Instruments Act. Rather the provisions of Section 426(A) of the Code
of Criminal Procedure will be applicable subject to the fulfillment of
condition stipulated under Section 138A of the Negotiable
Instruments Act.
In the premises made above as well as for the foregoing
reasons, the impugned orders dated 30.05.2024 passed by the High
Court Division in Criminal Revision Case Nos.3178, 3180 and 3179 of
2024 are set aside.
However, upon deposit of 50% of the total cheque amount by
the respondent No.1 in each case this judgment shall not preclude
him from preferring appeal against the respective judgment
pronounced by the trial Court. In case of deposit of 50% of the total
-12-
cheque amount in each case the Court below will be at liberty to
enlarge the respondent No.1 on bail in connection with each case.
With the above observations, these Criminal Petitions for Leave
to Appeal are disposed of.
C.J.
J.
J.
The 11th day of June, 2024
RRO/Total words-2,831
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS. 8-9 OF 2017
(Arising out of C.P Nos. 347 and 348 of 2014 respectively)
Hajera Khan and others .... Appellants
(In both the appeals)
-Versus-
Afsaruddin being dead his heirs:
1(a) Rumia Khatun and others
....Respondents
(In both the appeals)
For the Appellants
(In both the appeals)
: Mr. Farid Ahmed, Senior Advocate
instructed by Mr. Zainul Abedin,
Advocate-on-record
For the Respondent
Nos. 1(a)-1(d)and 2-5
(In C.A No. 8 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
For the Respondent
Nos. 1(a)-1(d)and 3-5
(In C.A No. 9 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
Date of Hearing : 09.01.2024 and 16.01.2024
Date of Judgment : 31.01.2024
J U D G M E N T
Md. Ashfaqul Islam, J: Both the civil appeals by leave are
directed against the judgment and order dated 16.10.2012
passed by the High Court Division in Civil Revision No.
3382 of 1995 (heard analogously with Civil Revision No.
3383 of 1995) making the rules absolute and thereby
setting aside the j udgment and decree passed in Title
Appeal No. 87 of 1989 (heard analogously with Title 2
Appeal No. 86 of 1989), dismissing the appeal and thereby
affirming the judgment and decree passed in Title Suit
No. 168 of 1984 (heard analogously with Title Suit No. 53
of 1987), decreeing the suit No. 168 of 1984 and
dismissing the suit No. 53 of 1987.
The predecessor of the present appellants, Amjad
Hossain as the plaintiff, filed Title Suit No. 575 of
1978 against Jashimuddin, the predecessor of the present
respondent Nos. 1 -5, and others which was subsequently
renumbered as Title Suit No. 168 of 1984. The suit sought
a declaration of title for the land s described in
Schedules 1 and 2, confirmation of possession of the land
in Schedule 1, recovery of khas possession of the land in
Schedule 2, and a permanent injunction along with mesne
profits.
Jashimuddin as plaintiff filed another suit being
Title Suit No. 53 of 1987 impleading Amjad Hossain as the
defendants regarding the self same suit land.
The case of the plaintiff in Title Suit No. 168 of
1984, in short, was that the lands described in schedule
1 and 2 are the accreted lands of Nuruli Ganga river
adjacent to C.S. Plot No.153 owned by Jibunnessa Khatun 3
and others, after accretion while the suit land became
fit for cultivation the predecessor of the plaintiff
Alauddin Bepari took settlement of the same from its
owner 40 years back by giving salami and paying taxes.
The suit land was duly recorded in the name o f Alauddin
Bepari in Plot Nos. 101 and 153. Alauddin Bepari died
leaving plain tiff as his heir. The defendants raised
objection against the S.A. record of the suit land under
section 30 of the State Acquisition and Tenancy Act but
became unsuccessful. The defendants reside near the
schedule 2 property and in the first part of Agrahayan
1385 B.S. they forcefully dispossessed the plaintiffs
from the schedule 2 property and hence the suit.
The case of the defendants is that the suit land is
the accreted land and it is contiguous to Plot Nos. 154,
161 and 162. While the land started accreting gradually
Jashimuddin took settlement of 10 1/2 pakhi of land from
the original owner Jibunnessa Khatun by executing a
kabuliyat which was registered on 14 th Chaitra 1353 B. S.
Subsequently Jasimuddin took settlement of 15 pakhi of
land more from Jibunnnessa by two patta. Since taking
settlement of those lands Jashimuddin possessed the same 4
on payment of rent to the landlord and subsequently to
the Government. He constructed his house on a portion of
the suit land and possessed the rest through cultivation,
all within the knowledge of everyone, including the
plaintiffs. During S.A. operation the suit land was
wrongly recorded in the name of plaintiffs . The
plaintiffs took advantage of the survey staff residing in
their house and collusively managed to have the suit land
recorded in their names in the S.A. khatian. The
defendants had been residing on the suit land for about
30 to 35 years.
During pendency of Title Suit No.168 of 1984
Jasimuddin himself also filed Title Suit No.53 of 1987 in
the same Court for declaration of title in the same land
and also for correction of record of right s. Both the
Title Suit No.168 of 1984 and Title Suit No.53 of 1987
were tried analogously. The trial Court, decreed Title
Suit No.168 of 1984 and dismissed Title Suit No.53 of
1987 by the judgment and decree dated 29.06.1989.
Being aggrieved by the decision of the trial Court,
the defendants of Title Suit No.168 of 1984 and the
plaintiff of Title S uit No.53 of 1987 preferred Title 5
Appeal Nos.86 of 1989 and 87 of 1989 respectively. The
appellate Court by the judgment and decree dated
04.04.1995 dismissed both the appeals affirming the
judgment and decree of the trial Court.
The heirs of the defendants of Title Suit No. 168 of
1984 and the plaintiff of Title Suit No.53 of 1987 then
preferred Civil Revision Nos. 3382 of 1995 and 3383 of
1995 before the High Court Division challenging the
judgment and decree of the appellate Court below which
upon heari ng the parties the High Court Division made
both the Rules absolute setting aside the judgment and
decree of the lower appellate court decreeing the Title
Suit No. 53 of 1987 and dismissing the Title Suit No. 168
of 1984. The heirs of plaintiff of Title Su it No.168 of
1984 and defendants of Title Suit No.53 of 1987 have
preferred separate Civil Petitions for Leave to Appeal
challenging judgment and order of the High Court Division
and obtained leave giving rise to these appeals.
The pith and substance of th e submissions pressed to
service by the learned Senior Advocate Mr. Farid Ahmed
for the appellants is that the High Court Division while
making the Rule absolute in both the revisions on setting 6
aside the concurrent findings of both the Courts below
gave a finding that both the Courts without discussing
the evidence on record decreed Title Suit No.168 of 1984
and dismissed Title Suit No.53 of 1987. This findings of
the High Court Division is perverse as because the trial
Court as well as the appellate Court on relying on the
S.A. and R.S. record of rights, farogs, rent receipts and
the oral evidence regarding possession and subsequent
dispossession of plaintiff of Title Suit No.168 of 1984
decreed that suit and dismis sed Title Suit No. 53 of
1987.
In elabora ting his submissions the learned counsel
contends that the High Court Division while making the
Rule absolute and setting aside the concurrent judgment s
and decrees of the Courts below, failed to point out the
misreading, non -reading or non -consideration o f any
evidence on record and without reversing the concurrent
findings of trial Court and appellate Court made the Rule
absolute.
On the other hand Mr. Zainul Abedin, the learned
Senior Advocate for the respondents submits the principle
not to interfere wi th concurrent findings of fact is not 7
a cast-iron practice and that the High Court Division in
appropriate cases may depart from that principle where
there is any violation of any rule of law or procedure or
where there have been misreading or non consider ation of
evidence affecting the ultimate decision of the Courts
below. In the instant case the High Court Division
rightly interfered with the concurrent findings of fact
arrived at by the Courts below . In support of his
contention he placed reliance in th e decision of Ziaul
Hasan Tarafder vs. Mir Osman Ali 73 DLR AD 250.
Now to sculpt a crystalised foundation of the
instances where the principle of no interference vis -à-
vis the principle of perversity were adopted by the High
Court Division and subsequentl y either endorsed or
disapproved by the Appellate Di vision we can take into
account established precedents.
To dispel any iota of ambiguity on the issue let us
go through some of those decisions clarifying the same.
In the case of Ziaul Hasan Tarafder (Md. ) vs. Mir
Osman Ali and Ors 73 DLR AD 250 it was observed:
“It is contended that the concurrent findings of
fact of the Courts below were illegally reversed
by the High Court Division although the High 8
Court Division could not point out any
misreading or n on reading of evidence, oral or
documentary.”
In the case of Atiqullah alias Atik Vs. Md Safiquddin
being dead his heirs Rashida Begum and others 59 DLR AD
149 this Division observed:
“The learned Advocateon -record failed to point
out that the considerati on of evidence made by
the High Court Division in the background of
non-consideration and misreading of the evidence
by the appellate Court was erroneous in any
respect and the said Division was in error in
arriving at the finding as to title and
possession of plaintiff and thereupon in setting
aside the judgment of the appellate Court. In
that state of the matter we do not find any
substance in the petition.”
In the case of Most. Akiman Nessa Bewa and others Vs.
Harez Ali and others 17 BLD AD 36 it was also observed:
“We find that the High Court Division upon
giving cogent reasons found that the plaintiff
was not entitled to the benefit of section 13 of
the Limitation Act as the pleading in the plaint
did not attract the application of the said
section. Als o we find that the High Court
Division in revision rightly interfered with the
finding of fact of the lower appellate Court 9
with regard to the genuineness of the bainapatra
Ext. 6. We therefore find no ground for
interference.
In the case of Promad Chandra Barman vs. Khodeza
Khatun Bewa 12 BLC AD 225 it was observed:
“In the facts and circumstances of the case and
in view of our discussion above, we are of the
view that the High Court Division without
adverting to the findings given by the court of
appeal regarding of pattan by Basanta Kumar in
favour of the plaintiffs by dakhilas, subsequent
execution of unilateral kabuliyats by plaintiffs
in favour of Basanta Kumar and possession of the
defendants in the suit land reversed those
finding on reassessment of the entire evidence.
Accordingly, the High Court Division committed
error of law in making the Rule absolute, which
requires interference by this court.”
In the case of Abul Bakar Siddique (Md) vs.
Additional Deputy Commissioner Kurigram and others 48 DLR
AD 154 it was observed:
“The learned Single Judge of the High Court
Division having independently assessed the
evidence and having found a case of non -
consideration of material evidence on record and 10
consequent non -reversal of material findings
interfered with the finding of fact. To our
mind, the revisional court is competent to
interfere in a case of non -consideration of
material evidence which is specifically material
for the determination of the material issue,
namely, the issue of shifting of the schoo l to
the new mouza.”
In the case of Khorshed Alam Vs. Amir Sultan Ali
Hyder 38 DLR AD 133 it was observed:
“The learned Single Judge is found to have
rightly refused interference with the finding of
the courts below which stands on a solid rock.”
Let us no w digress into the instant case . Upon
gleaning of the decision of the High Court Division with
utter surprise we observed that it has misdirected itself
without adverting to all the positive findings of the
courts below as we have discussed above. The find ings of
both the Courts below as we have discussed left nothing
unsaid about the good title and possession of the
plaintiff discarding the feeble and weak case of the
defendants. 11
Though the learned Senior Advocate Mr. Zainul Abedin,
Senior Advocate appear ing for the respondents tried to
impress upon us basing on the decision of Ziaul Hasan vs.
Osman Ali 73 DLR AD 250 that it’s not a cast -iron
practice and dogmatic approach that the High Court
Division will not interfere with the concurrent findings
of Courts below. The decision as cited by the respondent
is well founded and the principle laid down therein is an
age old one. It has been decided time and again by this
Division. As referred to above decision, certainly it’s
not a cast -iron practice and dogmat ic approach that the
High Court Division will not interfere with the
concurrent findings of Courts below. Yes, in a proper
case as it is propounded in the above decision that High
Court Division has ample and unfettered power to
interfere with the concurre nt findings of the Court
below. It can be reiterated that if the decision of the
Courts below is a perverse one, no reasons, whatsoever
can preclude the High Court Division in interfering with
the same. But in the case in hand, no departure of such
kind could be traced out upon gleaning the judgments of
both the Courts below. Therefore, question of
interference by the High Court Division does not arise in
this context. It did not at all advert to the points upon
which the decision of the Courts below was ba sed. It has 12
travelled in a different direction trying to stretch out
the case in favour of the defendants and against the
plaintiff which we disapprove. It is not a case in which
this Division will endorse merrily the view of the High
Court Division contemplating the Judgments of the courts
below being perverse. Rather we hold that the High Court
Division should have been loath in interfering the
concurrent findings.
Further, on the question of limitati on, the Courts
below held that S tate Acquisition and Tenancy Act came
into force in 1962 but the defendants instituted the
Title Suit claiming the suit land in the year 1987 which
is hopelessly barred by limitation. The question of
limitation goes at the root, we cannot simply understand
how it escaped noti ce of the High Court Division. No
deliberation has been given on that point. Moreover, the
Amalnama as it has been observed by the Courts below to
be fake and fabricated not coming from the real owner was
totally ignored and not taken into consideration by the
High Court Division. Likewise, there are so many laches
and lacunas which in our view, cannot in any case lead us
to think that the decision of the High Court Division was
a proper judgment of reversal. 13
On the conspectus , we find merit in the appeals .
Accordingly, both the appeals are allowed. The impugned
judgment and order of the High Court Division is set
aside, however, without any order as to costs.
CJ.
J.
J.
J.
The 31st January, 2024
/Ismail,B.O./*2469*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 375 OF 2015
(Arising out of C.P. No. 1797 of 2014)
Government of the People’s Republic of
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works, Bangladesh Secretariat,
Shahbag, Dhaka and others
.... Appellants
-Versus-
Belal Udd in, represented by his
Constituted Attorney Murtaza Zakir
Hossain
....Respondents
For the Appellants : Mr. SK. Md. Morshed, Adl. AG with
Mr. Samarandra Nath Biswas, DAG,
Mr. Mohammad Saiful Alam, AAG and
Mr. Sayem Mohammad Murad, AAG
instructed by Mr . Hairdas Paul ,
Advocate-on-Record
For Respondent : Mr. Kamal-ul-Alam, Senior Advocate
with Ms. Shahnaj Akhter, Advocate
instructed by Mr. Syed Mahbubar
Rahman, Advocate-on-Record
Date of Hearing : 03.01.2024 and 07.02.2024
Date of Judgment : 27.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 10.04.2014 passed by
the High Court Division in Writ Petition No.5218 of 2012
making the Rule absolute.
2
The present resp ondent Belal Uddin as petitioner
filed the aforesaid writ petition challenging inclusion
of the property measuring 12 decimals of land of B.S.
plot No.157 appertaining to B.S. Khatian No.9 recorded in
the name of predecessor of the writ -petitioner/transferor
corresponding to P.S. Plot No.99 of P.S. Khatian No.52
transformed from R.S. Plot Nos.87/104 as appeared in item
No.98 mentioning Plot No.9, Mouza -Pahartali under P.S.
Doublemooring at page 15656 (Kha) published in the
Bangladesh Gazette on 26.12.1988 v ide S.R.O. dated
25.12.1988 under section 5(1) of the Abandoned Buildings
(Supplementary Provision) Ordinance, 1985.
The case, made out in the Writ Petition, in brief, is
as follows:
The property in question originally belonged to Lalit
Mohan Roy and othe rs, recorded in the names of Amin
Sharif and Serajul Haque as rayati tenants during the R.S
operation. Upon Amin Sharif's demise, his daughter Sajeda
Khatun became the sole heir. Sajeda Khatun then
transferred 1.12 acres of land, including the case land,
to Anwara Ahammed Cowdhury via registered sale deed No.
2951 dated 16.04.1956, delivering possession to the 3
transferee. Subsequently, the writ-petitioner purchased
the property through registered sale deed No. 478 dated
08.01.1985 from Anwara Aham med Chowdh ury and got
possession. However, without issuing any notice, the
property was listed as abandoned. Due to non -service of
notice and being abroad, the writ-petitioner couldn't
approach the Court of Settlement, leaving no alternative
but to file an application under Article 102 of the
Constitution and obtained Rule.
Upon hearing the parties, the High Court Division
made the Rule absolute. Against which the writ -
respondents filed civil petition for leave to appeal and
obtained leave giving rise to this appeal.
Mr. SK. Md. Morshed, the learned Additional Attorney
General appearing for the appellants, contends that the
writ petitioner failed to provide evidence refuting the
absence of the ori ginal owner, Anwara Ahammad Chow dhury,
in Bangladesh when President's O rder 16 of 1972 took
effect. Therefore, inclusion of the property as abandoned
under the Supplementary Provisions Ordinance, 1985 was
lawful. The High Court Division erred by overlooking this
crucial point in its consideration of the case. 4
He finally submits that, being a Court of Appeal, the
High Court Division was not mandated to conduct factual
determinations of its o wn. However, its failure to
adequately address pertinent evidence prejudicial to the
complaining party, or any indication of mala fide cond uct
or infringement of the principles of natural justice,
renders the impugned judgment required to be set aside.
On the other hand Mr. Kamal -ul-Alam, the learned
Senior Advocate for the respondent -writ petitioner,
contends that the enlistment of the land in question as
abandoned property constitutes a clear violation of the
principle of natural justice, as stipulated in Article
7(3) of the Bangladesh Abandoned Property Order, 1972 (P.
O. No. 16 of 1972), and Section 5(1)(b) of the Bangladesh
Abandoned Buildings (Supplementary Provisions) Ordinance,
1985 (Ordinance No. LIV of 1985). He argues that neither
prior notice for enlistment nor subsequent notice for
surrender or transfer of possession was served to the
respondent or his transferor. He emphasizes th at the
gazette notification dated 26.12.1988 cannot serve as a
substitute for such statutory notice, rendering the
enlistment illegal. 5
Furthermore, He asserts that the land in question
does not meet the criteria or definition of abandoned
property. He argu es that its enlistment was based on
assumptions and mistaken beliefs without any factual
basis, as neither the respondent nor his transferor nor
any previous owner were engaged in activities detrimental
to the state's interests.
Next he submits that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the property
in person d eserting the same before the commencement of
P. O. No. 16 of 1972 and as the land in question does not
fall within the purview of P. O. No. 16 of 1972 and
therefore, the enlistment of the land in question as
abandoned property being illegal, the instant ap peal is
without any merit and liable to be dismissed.
He also placed reliance upon a series of decisions,
such as Bangladesh represented by the Secretary, Ministry
of Works and others vs. Helaluddin Ahmed 4 MLR (AD) 140,
where it was unanimously held that prior notice for 6
enlistment or treatment of properties as abandoned
property is a condition precedent. Since this condition
precedent was not fulfilled in the present case, Mr.
Kamal-ul-Alam asserts that the enlistment of the
respondent's property as abandoned property is inherently
illegal. Therefore, he argues that there is no merit in
the appeal and it should be dismissed accordingly.
We have heard the learned Advocates of both sides and
perused the impugned judgment and order of the High Court
Division.
The High Court Division noted that no notice was
served upon the writ -petitioner prior to the enlistment
of the property as an abandoned property. It is also
noted that as per documents presented in the writ
petition the petitioner was found to be in poss ession of
the property in question, and no notice for surrendering
or taking over possession of the disputed building could
be produced by the Government, as mandated by Section 5
of Ordinance No.54 of 1985. Section 5 of the Ordinance
stipulates that listing in the official gazette of house
buildings as abandoned property requires issuance or
service of notice, or taking possession pursuant to such 7
notice. The absence of such notice renders the listing
illegal. Citing the precedent set in the case of
Bangladesh represented by the Secretary, Ministry of
Works and others Versus Helaluddin Ahmed, reported in 4
MLR AD 140, this court underscored the necessity of
serving notice before treating a property as abandoned.
It was also held that d espite being unaware o f the
inclusion of the property until March 1, 2009, when the
time for seeking remedy through the Court of Settlement
had expired, the petitioner's right to challenge the
inclusion was upheld under Article 102(2)(a)(ii) of the
Constitution. The court affir med the maintainability of
the petitioner's application challenging the inclusion of
the disputed property in the impugned Gazette under
Article 102(2)(a)(ii) of the Constitution, considering
the non -existence of an alternative remedy due to the
expired timeframe.
It is absolutely incumbent upon the claimant who
claims the property to be illegally included in the
gazette to prove the said property not to be abandoned.
The fact of proving that the property is not an abandoned
one and not vested in the Govern ment is totally on the 8
person who challenges the same to be not an abandoned
property and intends to take such property out of the
list of the abandoned property published in the official
Gazette or for any other relief as detailed in section 7
of the Ordi nance 54 of 1985. In the case of the
Government of Bangladesh vs. Md. Jalil and others
reported in 48 DLR AD 10 it was held:
“The High Court Division, in our opinion, stated
with a wrong premise holding that the
presumption of correctness of the entries i n the
Gazette notification does not absolve the
Government from denying the facts alleged by the
claimant or from disclosing the basis of
treating the property as abandoned property when
it is disputed. Section 5(2) of the Ordinance
clearly provides that t he list published under
sub-section (1) shall be conclusive evidence of
the fact that the buildings included therein are
abandoned property and have vested in the
Government as such. Section 7 says that a person
claiming any right or interest in any such
building may make an application to the court of 9
Settlement for exclusion of the building from
such list, etc. on the ground that the building
is not an abandoned building and has not vested
in the Government under President’s Order No. 16
of 1972 or that h is right or interest in the
building has not been affected by the provisions
of that Order. The onus, therefore, is squarely
on the claimant of the building to prove that
the building is not an abandoned property. The
Government has no obligation either to deny the
facts alleged by the claimant or to disclose the
basis of treating the property as abandoned
property merely because the same is disputed by
the claimant.”
The stringent provisions of law that the onus lies
upon the claimant of the building to pr ove that the
building is not an abandoned property have been settled
by plethoras of decisions.
Now the core question is whether the writ-petitioner
was able to prove before the High Court Division that
original owner Anwara Ahammed Chowdhury from whom the
property had been purchased by the writ petitioner was 10
present at the relevant time, that is March 1971 to
February 1972.
Mr. Kamal-ul-Alam, the learned Senior counsel for the
respondent-writ-petitioner on this score has strenuously
tried to impress upon us that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the proper ty
in person deserting the same before the commencement of
P. O. No. 16 of 1972 but no rebuttable evidence could be
adduced to show that the transferor Anwara Ahammed
Chowdhury was present in Bangladesh for the purpose of
proving that the property was not an abandoned property.
It is our considered view that the writ-petitioner is not
absolved from the burden of proving to the hilt the
whereabouts of Mr. Anwara Ahammed Chowdhury during the
relevant period as hinted above. Almost in a similar
facts and circu mstances this Division came down heavily
in the case of Bangladesh, represented by the Secretary,
Ministry of Public Works Department and Urban Development 11
vs. Md. Suruzzamal and others reported in 48 DLR AD 1. In
paragraph 19 of the said reference it has been observed:
“This Division has held in the case of Gannyson
vs. Sonali Bank, 36 DLR AD 146, that once a
property vests in the Government under
President’s Order No. 16 of 1972 no legal
proceedings can be taken against such property.
The money decree obtained by Rupali Bank against
Dr. Shamim, the execution thereof and the
auction sale of the suit property are all void
and will not divest the Government of its title
to the suit property and the auction -purchaser
has acquired no title to the same by his a uction
purchase.”
Facts and circumstances of the above case are almost
similar to that of the case in hand. Admittedly, the
property is enlisted in the list of abandoned property .
Therefore, non service of notice upon the writ-petitioner
is of no avail.
In the case of Rawsanara vs. Bangladesh 59 DLR AD 165
it has been held that- 12
“In the instant case the petitioner having not been
able to establish before the Court of Settlement that the
claimant of the property or for that matter her vendor
Anwari Khatun were present in Bangladesh on 28-2-1972 and
consequent thereupon the property having had assumed the
character of abandoned property, the listing of the
property in question, even if without service of notice
as per provision of Ordinance No. 54 of 1985, i s not
material as the property because of non-service of notice
for listing in the list of abandoned properties would not
cease to be an abandoned property and consequent
thereupon the claim of title made by the petitioner in
the property in question is no t legally sustainable or,
in other words, the petitioner cannot raise any claim of
title in the property in question since said property is
an abandoned property.”
This proposition of law has been endorsed by a
subsequent decision of Shahidul Haque Bhuiyan and others
vs. Chairman, 1st Court of Settle ment and another 69 DLR
AD 241 and finally set at rest. In that decision it has
been observed in paragraph Nos. 23 and 24 by this
Division:- 13
“Next point raised by the Counsel is that since
no notice was served u pon the appellants before
the publication in the gazette, the listing of
the buildings is illegal. There is no dispute
that the property has been listed in the 'Kha'
list. Service of notice is required under clause
(b)(1) of section 4 for surrendering or g iving
possession of the buildings upon the person in
legal possession and the notice for surrendering
possession shall have to be issued within the
specific time. Law does not provide for service
of notice upon any person who is not in
possession of the bu ildings. Both the learned
Counsel submit that since no notice has been
issued upon the appellants, there has been
violation of law. In this connection they have
referred to Article 7 of PO 16 of 1972 read with
Rule 3(1)(8) of the Bangladesh Abandoned
Property (taking over possession Rules 1972).
Article 7(2) provides service of notice upon
the person in possession of the property within
seven days by the Deputy Commissioner or the
authorized person for taking possession. Similar
provision has been inserted in clause (b) of
section 4 of the Ordinance with the exception
that under the latter provision if the 14
possession is to be taken such notice be issued
upon him. In order to bring the case under
Article 7, the appellants must prove that they
are in possessi on of the building but if they
fail to prove possession, the claim of service
of notice upon them is redundant for, if they
are not in possession how the government can
infer that they have right or interest in the
buildings. More so, section 4 is a non -obstante
clause overriding the provisions contained in
the President's Order 16 of 1972. The rules
frames under the President's Order cannot
supersede the parent law. In the premises, the
High Court Division is perfectly justified in
holding that the appella nts are not entitled to
any notice since they are not in possession of
the property. In this regard, the Court of
Settlement held that the question of non -service
of notice required u nder section 4(1)(b) of the
Ordinance was not challenged in the case.
Similar views have been taken in Rowshan Ara vs.
Bangladesh, 59 DLR (AD) 165. It has been held
that if the property has assumed the character
of abandoned property, 'the listing of the
property in question, even if without service of
notice as per provision o f Ordinance No. 54 of
1985, is not material as the property because of
non-service of notice of listing in the list of 15
abandoned properties would not cease to be an
abandoned property......'”
As long as the property has attained the status
and char acter of an abandoned property through the
operation of law, any argument concerning the non -service
of notice upon the writ -petitioner holds no merit. In
such circumstances, the procedural lapse regarding
notification becomes inconsequential and cannot be
invoked to challenge the legal disposition of the
property. Consequently, the arguments presented by Mr.
Kamal-ul-Alam, addressing the issue of notice, bereft of
any consideration. The legal principle here is clear: the
designation of a property as abando ned supersedes and
nullifies any procedural objections related to notice,
rendering them legally ineffective and immaterial.
Article 2 of the PO 16 in clear terms has spelt out the
definition of abandoned property which is as under:-
“(i) “abandoned property means any property owned by
any person who is not present in Bangladesh or whose
whereabouts are not known or who has ceased to occupy,
supervise or manage in person his property, including-
(i) any property owned by any person who is a citizen
of a State which at any time after the 25th day of March,
1971, was at war with or engaged in military operations
against the People's Republic of Bangladesh; 16
(ii) any property taken over under the Bangladesh
(Taking Over of Control and Management of Industrial and
Commercial Concerns) Order, 1972 (Acting President's
Order No. 1 of 1972), but does not in clude- (a) any
property the owner of which is residing outside
Bangladesh for any purpose which, in the opinion of the
Government, is not prejudicial to the interest of
Bangladesh;
(b) any property which is in the possession or under
the control of the Go vernment under any law for the time
being in force.”
Therefore, the irresistible inference which follows
that in a ny course of event the bounden duty to be
discharged by the claimant for taking out a property from
the clutch of ‘abandoned property’ has b een time and
again decided in one line. Though it will be repetition
but still we want to reiterate that it is the claimant
who shall have to prove to the hilt that the property in
question is not an abandoned property. In the instant
case the petitioner c ould not prove that his transferor
Anwara Ahammed Chowdhury was present at the relevant time
as required under law and interpreted by several
decisions as discussed above. 17
Accordingly, the appeal is allowed without any order
as to costs. The impugned judg ment and order passed by
the High Court Division is hereby set aside.
CJ.
J.
J.
J.
J.
The 27th February,2024
/Nayeem Firoz, RRO & Ismail,B.O./*2085*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.74 OF 2007.
(From the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference
Application No.274 of 2006 with Rule No.09(Ref) of 2006).
East West University, a Project of Progati
Foundation for Education and Development, a
Society Registered under the Societies
Registration Act, 1860 having its address at
45, Mohakhali, C.A. Dhaka.
: ...Appellant.
-Versus-
The Commissioner of Taxes, Taxes Zone-3, Dhaka. :...Respondent.
For the Appellant.
: Mr. Khairul Alam Chowdhury, Advocate
instructed by M r. Md. Helal Amin ,
Advocate-on-Record.
For the Respondent.
: Mr. A.M. Amin Uddin, Attorney
General with Mr. Samarendra Nath
Biswas, Deputy Attorney General,
Ms. Mahfuza Begum, Deputy Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General, Ms.
Farzana Rahman Shampa, Assistant
Attorney General, instructed by Mr.
Haridas Paul, Advocate-on-Record.
Date of Hearing. : The 25th & 27th February, 2024.
Date of Judgment. : The 27th February, 2024.
J U D G M E N T
Borhanuddin,J: This civil appeal by leave is directed
against the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference 2
Application No.274 of 2006 with Rule No.09(Ref) of 2006
allowing the application in part.
Brief facts are that the appellant university is a
Project of Progati Foundation for Education and
Development and r egistered under the Societies
Registration Act, 1860 ; Said Foundation adopted a
resolution that the university would be run exclusively
for educational purposes , not for the purpose of a ny
profit, excess income from the university would be
utilized only for educational purposes , no income which
is in excess of the expenditure to be paid to any member
of the foundation or to any of its sections; The
appellant-university submitted income tax return for the
year 2004-2005 showing an income of Tk.8,68,26,317/ - and
claimed the income as exempted from tax by the SRO
No.178-Income Tax/2002 dated 03.07.2002 read with SRO
No.454-L/80 dated 31.12.1980; The Deputy Commissioner of
Taxes (hereinafter referred to as ‘the DCT’), Companies
Circle-9, Taxes Zone -3, Dhaka, ignoring the
aforementioned SROs, i.e. provisions of exemption in
respect of the income of the university assessed tax at 3
Tk.14,01,52,554/-; As against the order of the DCT , the
appellant-university preferred appeal before the
Commissioner of Taxes [hereinafter referred to as ‘the CT
(Appeal)’], Appeal Zone -3, Dhaka, but the CT ( Appeal)
with some modification dismissed the appeal vide order
dated 23.08.2005; Against the order of the CT ( Appeal),
the appellant preferred second appeal being Income Tax
Appeal No.1688 of 2005 -2006 before the Taxes Appellate
Tribunal, Division Bench -4, Dhaka , and the Tribunal by
its judgment and order dated 20.02.2006 dismissed the
appeal affirming the decision of the CT ( Appeal) on the
finding that since tuition fees are charged and teachers
are paid remuneration therefore the appellant runs the
private university on commercial basis and the income
over expenditure being its income from business is
taxable and the Tribunal also agreed with the DCT and the
CT (Appeal) in disallowing an amount of Tk.1,04,22,925/ -
claimed as disbursement of scholarship to poor and
meritorious students and a further amount of
Tk.10,00,000/- spent on Medha Lalon Fund. 4
As against the judgment of the Tribunal, the
appellant filed an application under Section 160 of the
Income Tax Ordinance, 1984 , before the High Court
Division formulating 8(i-viii) questions of law in the
form of following grounds:
“i. For that the assess ee Applicant being
totally exempt from tax the Tribunal erred
in holding that since tuition fees are
charged and the teachers are paid salaries
the appellan t’s income over expenditure is
its income from business.
ii. For that the appellant is a non -
profitable institution established for the
promotion of education and no part of its
income are utilised for its promoters/
founders but utilised solely for its own
purpose especially for the purpose of
education and infrastructure development and
there is no sc ope to run the appellant-
university on commercial basis and as such
it is entitled to get benefit of exem ption
of income tax under SRO No. 454-L/80 dated
31.12.1980 and SRO No. 178 dated 03.07.2002
and in such situation the Tribunal acted
illegally in dismissing the appeal.
iii. For that information technology being
imparted the appellant is exempted from tax
under SRO No.178 dated 03.07.2002.
iv. For that the Tribunal acted illegally in
not holding that the profit seeking purpose 5
being the basic elemen t to be operated on
commercial basis and the appellant being a
non-profitable educational institution
cannot be operated on commercial basis and
its entire income is held by it for the
purpose of education and thus it is entitled
to be exempted from income tax under the SRO
dated 03.07.2002.
v. For that the Tribunal acted illegally in
treating the appellant to be a University
run on commercial basis when the appellant
is clearly a non -profitable institution and
the amended Notification did not make any
difference so far the appellant is
concerned.
vi. For that the compu ter department of the
appellant-university is not subject to tax
inasmuch as the income from this Department
is exempted from paying tax under SRO dated
03.07.2002.
vii. For that the Tribunal acted illegally in
affirming the disallowance by the DCT and its
confirmation by the CT (Appeal) of the entire
disbursement of Tk.1,04,22,925/ - on scholarship
to the poor and meritorious students in
fulfilment of the University Grants
Commission’s requirem ents inasmuch as such
disallowance is not tenable in the eye of law.
viii. For that the Tribunal acted illegally
in affirming the decisions of the DCT and CT
(Appeal) as regards the rejection in its
entirety the amount of Tk. 10,00,000/- spent
on Medha Lalo n Fund inasmuch as such 6
rejection in disregard of the objectives of
the Foundation is not supportive of law.”
Upon hearing the respective parties, the High Court
Division allowed the reference application in part
answering the formulated Question Nos.(i) -(vi) i n
negative and Question Nos.(vii) and (viii) i n affirmative
vide impugned judgment and order dated 14.01.2007.
Having aggrieved , the appellant being petitioner
preferred Civil Petition for Leave to Appeal No.152 of
2007 invoking Article 103 of the C onstitution and
obtained leave granting order on 28.03.2007.
Consequently, instant civil appeal arose.
Mr. Khairul Alam Choudhury , learned Advocate
appearing for the appellant submits that the Government
(Ministry of Finance) in exercise of its power as
conferred by Section 60(1) of the Income Tax Act, 1922
published gazette notification being SRO No.454 -L/80
dated 31.12.1980 exempting income tax on some classes of
income including the income of the unive rsity or any
other educational institutions existing solely for
educational purpose and not for the purpose of profit. 7
Subsequently, the Government in exercise of its power as
conferred by Section 44(4)(b) of the Income Tax
Ordinance, 1984 amended the said SRO No.454 -L/80 and
substituted Sub -Clause (3) of Clause (a) making the
income of university/any other educational institutions
“not operated commercially” as tax exempted and as such
the appellant-university registered under the Societies
Registration Ac t, 1860 and not being operated
commercially is entitled to have the benefit of SRO
No.454-L/80 dated 31.12.1980 read with SRO No.178 -Income
Tax/2002 dated 03.07.2002. He also submits that income of
the appellant-university is spent for promoting education
by giving scholarship s and other incentives to the
students for development of education and the appellant-
university not being operated commercially is entitled to
have the benefit of SRO No.454 -L/80 dated 31.12.1980 read
with SRO No.178 -Income Tax/2002 dated 03.07.2002. He
further submits that the issue raised in this appeal has
been settled and is covered vide order dated 06.02.2017
passed by this Division in Civil Petition for Leave to
Appeal Nos.1896-1900 of 2015. 8
On the other hand Mr. A.M. Amin Uddi n, learned
Attorney General appearing for the respondent conceded
that the issue raised in this appeal has been settled by
this Division in Civil Petition for Leave to Appeal
Nos.1896-1900 of 2015 a ffirming the judgment and order
dated 14.05.2015 passed by a larger Bench of the High
Court Division in Income Tax Reference Application
Nos.159-162 of 2011 and 511 of 2004.
Heard the learned Advocate for the appellant and the
learned Attorney General for the respondent and perused
the impugned judgment and ord er passed by the High Court
Division alongwith papers/documents contained in the
paper book.
The issue involved in the appeal
The appellant filed Incom e Tax Reference Application
No.274 of 2006 before the High Court Division under
Section 160 of the Income Tax Ordinance, 1984 in respect
of the income tax assessment year 2004 -2005 challenging
the order dated 28.02.2006 of the Taxes Appellate
Tribunal, Division Bench-4, Dhaka, in Income Tax Appeal
No.1688 of 2005 -2006, wherein the Tribunal declined to 9
allow t ax exemption under SRO No. 454-L/80 dat ed
31.12.1980 read with SRO No. 178-Income Tax/2002 dated
03.07.2002.
The said SRO No. 454-L/80 dated 31.12.1980 read with
SRO No.178-Income Tax/2002 dated 03.07.2002 (as on the
date of assessment) provides as follows:
“In exercise of the powers conferred by Sub-
Section (1) of Section 60 of the Income -Tax
Act, 1922 (XI of 1922) and supersession of the
Ministry of Finance Notif ication No. SRO
1041(K)/61, dated the 31 st October, 1961 the
Government is pleased to direct that:
(a) The following classes of income
shall be exempt from the tax payable
under the said Act and they shall
not be taken into account in
determining the total income of an
assessee for the purposes of the
said act.
-AND-
(3) the income of any university, or any other
educational institution, which is not operated
commercially and also medical college, dental
college, engineering college and institution
imparting education on information
technology.”
The High Court Division vide judgment and order dated
14.01.2007 passed in the Income Tax Reference Application
No.274 of 2006 upheld the decision of the Tribunal 10
declining to extend entitlement of exemption to the
appellant-university on the ground that the appellant
failed to submit certificate or exemption letter of the
income tax authority proving that the appellant -
university is entitled to tax exemption under the said
SRO dated 31.12.1980 as amended by SRO dated 03.07.2002.
The relevant part of the said judgment and order dated
14.01.2007 is quoted below:
“----The SRO No.454-L/80(a) dated 31.12.1980
as amended by SRO No.178 -Income Tax/2002
dated 03.07.2002 contains, amongst other,
that the income of any University or any
other educational institution ‘not operated
commercially’ and/or ‘institution impartin g
education on information technology ’ are
exempted from payment of tax and the same is
general provision as to entitlement to claim
exemption. In order to get such exemption it
is necessary to satisfy the Taxes authority
as to the fulfilment of the condit ions/
criteria laid down in the SRO ’s by an
university or educational institution and on
being satisfied the Tax authority is to
issue a certificate or exemption letter to
be produced/referred as and when required by
the assessing officer. The SRO ’s do not
authorize the assessing officer to decide
the claim of such tax exemption by an
assessee inas much as such claim for tax -11
exemption requires proper enquiry by
competent authority.”
Against the judgment and order dated 14.01.2007
passed by the High Court Division in Incom e Tax Reference
Application No.274 of 2006, this Division granted leave
on 28.03.2007 , out of w hich the instant Civil Appeal
No.74 of 2007 arose.
On perusal of the judgment and order dated 14.05.2015
passed by the larger Bench of the High Court Division and
order dated 06.02.2017 passed by this Division it appears
that the issue involved in the instant appeal has been
settled by this Division affirming the judgment and order
of the larger Bench of the High Court Division.
Relevant portion of the judgment and order passed by
the larger Bench of the High Court Division is quoted
below:
The main arguments entered around whether
the asses see-university or the assessee -
college may be treated as ‘being operated
commercially’. There is no dispute that the
words ‘operated commercially’ or ‘not
operated commercially’ have not been defined
in the Ordinance or the Rules made
thereunder. From the Notification, SRO 12
No.178, it ap pears that no definition or
explanation has been given for treating a
university or educational institution as
‘not operated commercially’.
--------------------------------------------
--------------------------------------------
Thus, considering the meani ng of
‘commercially activity ’ as discussed
hereinbefore, it is evident that the
expression of the words ‘not operated
commercially’ is vague and it may carry
meaning in favour or against the assesses
i.e. both ways. When there is doubt, an
interpretation w hich is favourable to the
subject should be preferred .-National Board
of Revenue vs. Bata Shoe Co., 42 DLR (AD)
105. When a particular provision is
susceptible of two or more interpretations,
that one most favourable to the citizen must
accepted.-Commissioner of Customs vs.
Customs, Excise & VAT Appellate Tribunal, 8
BLC 329. It is a settled principle of law
that when the provision of a fiscal law
carries different meaning, in such case, the
benefit of it will go in favour of the
citizen i.e. the assesse e-university/the
assessee-college.
Question (ii) is about the requirement of
certificate or exemption letter issued by
Tax Authority to get exemption from payment
of income tax.
--------------------------------------------
--------------------------------------------
The learned Deputy Attorney General failed
to show before us that there is any legal 13
requirement to issue a certificate by the
Tax Authority or exemption letter to be
produced in order to get the benefit of SRO
No.454 read with SRO No.178.
--------------------------------------------
--------------------------------------------
In the result, our answer to questions (i)
and (ii) as re -formulated by us are decided
in the negative in favour of the assesse e-
applicants and against the department -
respondent.”
Thereafter, this Division vide order dated 06.02.2017
in Civil Petition for Leave to Appeal No s.1896-1900 of
2015 upheld the said judgment and order dated 14.05.2015
passed by a larger Bench of the High Court Division in
Income Tax Reference A pplication Nos.159 to 162 of 2011
and 511 of 2004.
It appears that the issue of the prese nt appeal and
the issue involved in Income Tax Reference Application
No.159-162 of 2011 and 511 of 2004 are identical. Both
relates to tax -exemption under SRO No.454 -L/80 dated
31.12.1980 read with SRO No.178 -Income Tax/2002 dated
03.07.2002 and also relates to the same assessment year
i.e. 2004-2005. 14
It is mention ed earlier that, the Income Tax
Reference Application Nos.159-162 of 2011 and 511 of 2004
[reported in 2017 11 ALR (HCD) 6 ], has been settled by a
larger Bench of the High Court Division which is
maintained by this Division in Civil Petition for Leave
to Appeal Nos.1896 -1900 of 2015 vide order dated
06.02.2017.
It is true that the words ‘operated commercially’ or
‘not operated commercially’ have not been defined in the
Income Tax Ordinance, 1984 or the Rules made thereunder.
It also appears from the Notification, SRO No.178 -Income
Tax/2002 dated 03.07.2002, that no definit ion or
explanation has been given for treating a university or
educational institutions as ‘not operated commercially’.
As such , we are in agreement with the order dated
06.02.2017 passed by this Division in Civil Petition for
Leave to Appeal Nos.1896 -1900 of 2015 affirming findings
of the larger Bench of the High Court Division passed in
Income Tax Reference Application Nos.159 -162 of 2011 and
511 of 2004. 15
We do not find any reason to deviate from the
findings of th e larger Bench of the High Court Division
passed in Income Tax Reference Application Nos.159-162 of
2011 and 511 of 2004 which concurred by this Division in
Civil Petition for Leave to Appeal Nos.1896-1900 of 2015.
The judgment and order of the High Court Division so
far it relates to answer s the Question Nos. (i)-(vi) are
set-aside i.e. we affirmed the answers of the Question
Nos.(i)-(vi) in affirmative. And the answers of the High
Court Division relating to answer s of the formulated
Question Nos.(vii) and (viii) are maintained i.e. we also
affirmed answers of the Question Nos.(vii) and (viii).
Distinguishable facts of the instant Civil Appeal No. 74 of
2007 from the facts of other Civil Appeal Nos.111-155 of 2021.
Instant Civil Appeal No. 74 of 2007 was analogously
heard with other Civil Appeal Nos. 111-155 of 2021 by this
Division. But the facts and p oint of law involved in the
Civil Appeal Nos. 111-155 of 2021 are different from
instant Civil Appeal No.74 of 2007.
The appellant university of this Civil Appeal No. 74
of 2007 challenged the decision of the High Court 16
Division relating to the Assessment Y ear 2004-2005, when
Clause 1(a) (3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) was in f ull force of
law. The appellant university of the Civil Appeal No.74
of 2007 asserts that the university is entitled to tax
exemption for the Assessment Year 2004 -2005 under the
prevailing law which is Clause 1(a)(3) of the said SRO
dated 31.12.1980 (as amended by the SRO dated
03.07.2002).
Whereas the rest of the Civil Appeal Nos. 111-155 of
2021 do not essentially involved whether the respective
universities are entitled to exemption under the said
Clause 1(a)(3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) . In the Civil Appeal
Nos.111-155 of 2021, the respective universities
challenged the authority of the Government to revoke the
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002). The
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
revoked or rescinded or abolished by dint of the SRO 17
No.156-Ain/Income Tax/2007 dated 28.06.2007 and the
respective university also challenged the authority of
the Government ex empting the private universities from
tax to the tune of 10 % by way of reducing the liability
to pay tax to the tune of 15 % under the SRO No.158 -
Ain/Income Tax/2007 dated 28.06.2007. Moreover, the tax
assessment years involved in the said Civil Appeal
Nos.111-155 of 2021 are all related to tax assessment
years when the said Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
not in force. Hence, the points of law as well as facts
of instant Civil Appeal No.74 of 2007 are distinguishable
and different from Civil Appeal Nos.111-155 of 2021.
Accordingly, the civil appeal is disposed of.
No order as to costs.
J.
J.
J.
J.
The 27th February, 2024.
Jamal/B.R./Words-*3023*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CRIMINAL APPEAL NO. 92 OF 2023
(From the Judgment and order dated 12.10.2023 Passed by
High Court Division in Contempt Rule No. 53467 of 2023)
Mr. Sohel Rana ....Appellant
-Versus-
The state and others ....Respondents
For the Appellants
: Mr. Probir Neogi, Senior Advocate
with Mr. Shah Monjurul Hoque,
Senior Advocate instructed by M s.
Shahanara Begum , Advocate -on-
record
For Respondent No. 1
: Mr. Mohammad Saiful Alam , AAG
(appearing with the leave of the
Court)
For Respondent Nos.
2-3
: Not represented
Date of Hearing : 05.12.2023 and 06.12.2023
Date of Judgment : 06.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This criminal appeal is preferred
against the judgment and order dated 12.10.2023
passed by the High Court Division in Contempt Rule
No. 53 467 of 2023 making the Rule absolute,
convicting the appellant for Contempt of Court and
thereby sentencing him to suffer simple imprisonment
for 30 ( thirty) days and to pay a fine of taka 2
5,000/- (five thousand) in default, to suffer simple
imprisonment for 30(thirty) days more.
Facts, in short , are that upon an application
under Section 561A of the Code of Criminal Procedure
the proceeding of Kotwali Police Station Case No. 87
dated 27.03.2017 corresponding to G.R No. 320 of 2017
(Kotwali), pending in th e Court of Chief Judicial
Magistrate, Cumilla was challenged before the High
Court Division. Upon hearing the High Court Division
issued Rule and at the same time stayed all further
proceedings of the aforesaid criminal case for a
period of 06 (six) months. Subsequently, the order of
stay was extended till disposal of the Rule.
The Chief Judicial Magistrate, Cumilla, appellant
herein defying the order of stay passed by the High
Court Division proceeded with the said case and
framed charge against the accused petitioners.
After noting the aforementioned facts and finding
the appellant's explanation unsatisfactory, the High
Court Division proceeded to issue a contempt rule
against him. 3
The High Court Division found contemnor, Mr.
Sohel Rana guilty of gross contempt of Court and made
the Rule absolute by convicting and sentencing him as
aforesaid.
It is noted that knowing fully about the order of
stay of the High Court Division the appellant
proceeded with the aforesaid case pending before him,
fixed dates, on e after another, for charge hearing,
took hajir a (appearance) of the accused and gave
undue pressure upon the accused to bring the result
of the Rule pending before the High Court Division
and lastly, framed charge against the accused
petitioner and at the same time declared another
accused fugitive and then fixed the case for
recording evidence. All those seemingly overzealous
orders were undoubtedly prejudicial to the accused of
the case and were passed in clear violation of order
of stay of the High Court Division.
The appellant, having served as Chief Judicial
Magistrate for several years following a promotion to
Additional District Judge, has accumulated extensive 4
experience in judicial matters over the years.
Therefore, he cannot be regarded as a juni or officer
lacking in experience. However, his actions in the
pending criminal case, as evidenced by his written
explanation, statement, and affidavit seeking
apology, indicate a deficiency in judicial
temperament. Despite his experience, he has
repeatedly committed acts of contempt against the
High Court Division and has persisted in justifying
his behavior.
Form above facts, we find with pain not pleasure
that the appellant has shown wanton disregard,
disrespect, defiance and disobedience in the
implementation of the order of the High Court
Division. Such conduct of the appellant is short of
anything but contumacious. By his conduct he tried to
bring down the authority and majesty of the Supreme
Court in the estimation of the people particularly
those who are coming to this court for redress, so to
say justice. His disregard, defiance and disobedience
to the command and his intention to flout the order 5
of the High Court Division is so deliberate and
contumacious that he does not deserve any mercy or
leniency. His conduct is devoid of any compunction.
Bewildered with severe grief and resentment we
encountered one of the most unprecedented and unusual
instance of criminal act of contempt that was
perpetrated violating the order of stay of the High
Court Division. It came as shock when we found that
in a most abrupt, rather I would put that in an
unexpected manner, the contemnor before us has made
obnoxious order defying the order of the High Court
Division which the said contemnor was
constitutionally bound to comply with.
It is not the case of the appellant that he
misunderstood the order of the High Court Division or
there is ambiguity therein. Because, he did not say a
single word that the court’s order was unclear and
ambiguous.
The trivia and tradition of the Supreme Court are
well identified and preserved. One should not forget
that the hands of the Courts are long enough to catch 6
hold of wrong doers wherever they hide. This is an
unfettered and inherent right attached to the Court.
In addressing the gravity of the situation where
a judge of the subordinate judiciary has
intentionally disobeyed the order of the Apex Court,
the Appellate Division of the Supreme Court of
Bangladesh must exercise its authority with
unwavering diligence. The sanctity of judicial orders
and the integrity of the legal system demand nothing
less than a resolute response to such defiance.
The contemnor before us has rendered
unconditional and unqualified apology. In accepting
the apology offered by the convicted contemnor, the
Appellate Division must emphasize the paramount
importance of respecting and implementing judicial
directives without reservation or hesitation.
Therefore, while extending clemency to the
convicted contemnor, this Division delivers a stern
admonishment to serve as both a reminder and a
warning. This admonishment serves not only to remind
the individual judge of their solemn duty but also to 7
reaffirm the collective obligation of the entire
subordinate judiciary to honor and implement the
directives of t he Apex Court without reservation or
equivocation.
Hence, we hereby absolve and exonerate the
contemnor, Mr. Sohel Rana. Nevertheless, it is
crucial to issue a strong admonition, underscoring
the significance of adhering strictly to directives
from the hi ghest court in the country. It is our
expectation that this incident serves as a lesson for
all judicial officers, reaffirming the principle that
the authority of the judiciary must be respected and
upheld at all times.
Since this is the First Offence of the appellant
and he has solemnly promised never to do any act of
omission in defiance of or in disobedience to any
order of the Supreme Court we have taken a view and
seriously censor and w arn him for his conduct and if
he rep eat such kind of act in futur e he will be
severely dealt with. 8
In the light of the above observations , this
appeal is disposed of . The impugned judgment and
order passed by the High Court Division is hereby set
aside.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 138 OF 2009
(Arising out of C.P No. 819 of 2007)
Md. Abdul Hanif @ Abu Hanif and others .... Appellants
-Versus-
Bhupen Nath and others ....Respondents
For the Appellants
: Mr. Md. Nurul Amin, Senior
Advocate instructed by Mr.
Mohammad Ali Azam , Advocate-
on-record
For Respondent Nos. 3, 4,
5(a), 5(b)(i) -5(b)(iii),
5(c) and 5(d)
: Mr. Md. Firoz Shah ,
Advocate-on-record
For Respondent Nos. 1-2,
5(b) and 6-8
: Not represented
Date of Hearing : 23.04.2024 and 24.04.2024
Date of Judgment : 25.04.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This appeal is directed against the
judgment and order dated 20.03.2007 passed by the High
Court Division in Civil Revision No. 4076 of 2000
discharging the Rule affirming the judgment and decree
dated 29.06.2000 passed by the then Subordinate Judge, 1st
Court, Pabna in Title Appeal No.28 of 1992 reversing
those dated 05.10.1991 passed by the Assistant Judge,
Sathia, Pabna in Other Suit No.40 of 1990 decreeing the
suit. 2
The present appellants , the petitioners in civil
revision were impleaded as parties in the lower appellate
Court.
The aforesaid suit was filed for declaration of title
and confirmation of possession over the suit land.
The case of the plaintiffs, in short, is that the
land in CS Khatian No. 300 belonged to Bhim Sarder, who
died leaving son Padda Sarder. Due to arrear of rents the
landlord Binode Bihari Shaha and others filed rent suit
in the Court of the then Munsif, Pabna against Padda
Sarder for realization of rent for the years 1360 -62 B.S.
and subsequently he paid rent to the Landlord and got
"Dakhila". At the time of preparation of S.A. record
Padda Sarder became blind and his 3 sons i.e the
plaintiffs were minor. As a result the suit land was
recorded in the name of Shorot Shundori. That record was
wrong. The plaintiffs have been possessing the suit land
and the defendants have no right, title and possession in
the suit land. The plaintiff No. 1 went to Ataikula
Tahsil Office in the 1st part of Poush 1383 B.S. for
payment of rent and came to learn that the suit lan d was 3
not recorded in their name, and the defendant s claimed
the suit land. Hence the suit was filed.
The defendant Nos. 2 and 3 contested the suit by
filing written statement wherein they admitted the right,
title, interest and possession of the suit land by Bhim
Sarder.
The defendants, in their written statement,
acknowledged Bhim Sarder's possession and Padda Sarder's
subsequent ownership. They also mentioned that Padda had
mortgaged the property in the year 1928 to one Irad Ali
Matbar and took Taka 100/ -. Irad Ali Matbar later
acquired possession of the land through auction since
Padda defaulted on repayment. After obtaining possession,
Irad Ali Matbar transferred the property to Shorot
Shundori. Shorot Shundori, who designated the property as
her Stridhan, subsequently passed away, leaving her son,
Shatin Chandra, as the heir. During her exclusive
possession, Shorot Shundori transferred the land to her
daughter, Sushila Bala's three sons: Dulal, Bhupen, and
Paritosh on 13.05.1970 and delivered possession . T hey
started possessing the suit lands. Dulal died leaving his 4
mother Sushila Bala and two brothers Bhupen and Paritosh
who continued to possess the suit land since then.
The trial Court decreed the suit, leading to an
appeal being Title Appeal No. 28 o f 1992. The lower
appellate Court reversed the decision, prompting the
respondents to seek recourse in a civil revision before
the High Court Division. The High Court Division upheld
the lower appellate Court's decision, leading to the
present appeal.
Mr. Md. Nurul Amin, the learned Senior Advocate for
the appellants argue s that Padda Sarder filed
Miscellaneous Case No.36 of 1941 for setting aside
auction followed by a compromise as evident by exhibit C1
but the Court of Appeal below and the High Court Division
made out a third case that Padda Sarder made a compromise
with Irad Ali admitt ing the auction and thereby erred in
law in discharging the Rule.
He further argues that the Court of Appeal below
committed an error of law for taking into consideration
Exhibit-C1 without noticing that no amendment was made in
the pleading in respect o f the same in violation of 5
provisions of Order 6 Rule 7 of the Code of Civil
Procedure.
Next he submits that the plaintiffs' witnesses PW -1
to P W-6 proved the plaintiffs' cas e. Moreover, defenc e
witness DW-2 also in his examination -in-chief stated
" and in cross-examination deposed that
". But the High Court Division did not
at all consider this vital evidence and also violated the
mandatory provisions of law without discussing any
evidence.
Lastly, he submits that even the case of the
defendants is taken to be true in its entirety; the
compromise decree in Miscellaneous Case No. 36 of 1941 is
not adm issible in evidence as because the same is not
registered under Section 17(2)(VI) of the Registration
Act.
On the other hand , Mr. Md. Firoz Shah, the learned
Advocate-on-record appearing for the respondents made his
submissions supporting the decision of the High Court
Division. He contends that the continuous possession by
the plaintiffs as the heirs of Padda Sarder was not
proved. He further submits that the plaintiffs produced 6
rent receipts of the year of 1385 and 1387 BS but they
failed to produce rent receipts ranging from the year of
1362-1385 BS. Moreover , the plaintiffs did not produce
the nephew of Padda, Rupendranath whose testimony was
very much important as he was in possession of the suit
land on behalf of Padda Sarde r well before the advent of
the plaintiffs in the scenario as the heirs of Padda
Sarder.
He further submits that there is an anomaly in as
much as the plaintiffs claim that they paid the rent for
the suit land as aforesaid but they came to know about
the so -called wrong SA khatian l ater in 1383 BS.
Therefore, the suit is barred by limitation as not being
filed in due time.
He also submits that SA khatian was rightly recorded
in the name of Shorot Shundori as Padda Lal Sarder waived
the claim of the suit land through clause 3 of the
solenama submitted in the Mortgage Suit No. 36/41 filed
in first Munsif Court of Pabna acknowledging the
possession of Irad Ali.(Exhibit C1). After the compromise
decree dated 24.4.42 the claim of Padda Lal Sarder does
not exist on the suit land as the same was waived and 7
duly recorded in the name of Shorot Shundori, the mother
of the defendants.
We have h eard the learned Advocates of both sides
and gone through the judgment s of the Courts below. We
have also perused the evidence on record.
PWs 1-6 deposed confirming the title and possession
of the plaintiffs . Moreover, DW-2 also stated in his
examination-in-chief that " and in
cross-examination stated that ". This
vital aspect o f the evidence of PWs which was also
supported by the defenc e witness No. 2 has a positive
evidential value on the question of possession of the
plaintiffs in the suit land which escaped notice of the
High Court Division.
The defendants’ endeavor to put forward exhibit C1 on
record was erroneous since the same was not in their
pleadings as opposed to Order 6 Rule 7 of the Code of
Civil Procedure.
In the case of 5 BLC AD 108 this Division observed:
“Neither from the averments made in the plaint that
the plaintiff claimed the property in suit as a vested
property nor the learned Subordinate Judge held that the 8
property was a vested property but in spite of absence of
such averments and finding the learned Judges of the High
Court Division have made out a third case in holding that
the property is a vested property which is wrong.”
As already we have mentioned that the consideration
of exhibit C1 by the lower appellate Court was not in the
written statement of the defendant s. Hence, it offends
the provision of Order 6 Rule 7 of the Code of Civil
Procedure which enjoins that the new grounds of claim
those are absent in pleadings should not be allowed to
raise without amendment of pleadings. This statutory
provision of law has been designed as a safeguard so that
one cannot be taken by surprise by the other side at the
time of trial.
The most significant issue of the instant case is
that the trial Court as well as the lower appellate Court
both had recognized that the RS Khatian have been rightly
prepared in the name of the plaintiffs. It is written in
the judgment of the trial Court:
“
9
”
On the other hand lower appellate Court also found:
“
”
The presumption of correctness as to CS record of
rights is not certainly available with regards to the
state acquisition Khatians in pursuance of the provisions
under Section 103(B) of the Bengal Tenancy Act but
subsequently by an amendment in the year 1967 , section
144A was incorporated in the State Acquisition and
Tenancy Act. It is reproduced below:
“Every entry in a record -of-rights prepared or
revised under section 144 shall be evidence of the matter
referred to in such entry, and shall be presumed to be
correct until it is proved by evidence to be incorrect.”
Notably, both the provisions as contemplated in
Section 103(B) of the Bengal Tenancy Act (in respect of
CS Khatian) and Section 144A of the State Acquisition and
Tenancy Act (in respect of RS Khatian) are rebuttable, 10
that is to say, every entry in the Khatians, as the case
may be , shall be presumed to be correct until it is
proved by evidence to be incorrect.
The thrust and the gravamen of the instant case
invariably relates to the question of the entry of the
plaintiffs’ names in the RS Khatian.
In the instant case admittedly RS Khatian was
prepared in the name of plaintiffs. The trial Court as
well as the Appellate Court below clearly mentioned and
admitted regarding the same. We don’t find any positive
steps that have been taken to dislodge the s aid
presumption of correctness from the record, only a feeble
attempt was made by the Court to that effect in its
observations which is as under:
“
”
Therefore, the plaintiffs ’ names in the RS Khatian
stand correct. Certainly this piece of evidence though
rebuttable could not be rebutted by the defendants in due
course. 11
Let us now glean some relevant authorities on the
point:
In the case of Halima Begum vs. Syed Ahmed 21 DLR 854
his lordship Nurul Islam, J observed:
“It is true that record of right indicates
certain right of certain parties but that right
is certainly dependent on some material
evidence, oral and documentary so as to
establish title in favour of persons who claim
under the said record of right. The presumption
of correctness as to CS record of right is not
certainly available with regard to the State
Acquisition Khatians. There is no presumption of
correctness in respect of the State Acquisition
Khatians as it is to be found in case of CS
khatians in pursuance of the provision under
section 103-B of the Bengal Tenancy Act.”
In the case of Government of Bangladesh vs. Tenu Miah
Tofadar 14 LM AD 30 it was observed:
“If we gle an the said provision it transpires
that a finally published record of rights
revised under Section 144(A) of the State
Acquisition and Tenancy Act has a presumption of
correctness and that presumption continues till
it is otherwise rebutted by a reliable evidence.
This proposition of law is well settled. The
oldest record of rights being the cadastral 12
survey prepared under section 103(B)(5) of the
Bengal Tenancy Act (Act No. VIII of 1885) also
got a high presumptive value as to correctness
of entries therein as it has also been enjoined
under section 144(A) of the State Acquisition
and Tenancy Act. Of course this is a rebuttable
peace of presumption, if it has been so rebutted
by evidence. Since the entry of the land in
question as per the State Acquisition and
Tenancy Act recorded in the name of the
government as land, in the absence of any
positive evidence oral and documentary onus was
upon the plaintiff to discharge the presumption
proving the same to be wrongly recorded in the
record of rights bereft of which title and
interest cannot vest upon the plaintiff. The
case of Government of Bangladesh vs. A.K.M Abdul
Hye 56 DLR AD 53 is an authority on this issue.
The decision of High Court Division is totally
devoid of consideration of all these settled
principles of law adversely reversing the lower
appellate Court's judgment committing a palpable
wrong which required to be intervened by this
Division.”
In the case of Md. Hossain vs. Dilder Begum 9 MLR AD
361 it was observed:
“Being aggrieved the petitioners moved the High
Court Division in its revisional jurisdiction in 13
Civil Revision No. 176 of 1990 and obtained a
rule which was discharged and the learned Single
Judge of the High Court Division by his judgment
and order dated 23.05.1999 rejected the
application on the finding that the RS khatian,
exhibit-1, has been prepared in the name of the
predecessors of the plaintiffs to the extent of
1/3rd share and the name of the predecessors of
the defendant petitioners to the extent of 2/3rd
shares. The learned sin gle judge observed that
though there is conflict between the CS and RS
khatians the RS khatian will prevail over the
former.”
The case of the Chief Engineer, Roads and Highway
Directorate vs. Asaduzzaman Siddique 69 DLR AD 440 also
echoed accordingly on the point.
The decision also highlighted:
“Referring the explanation of the Judicial
Committee of Privy Council on the nature of an
entry in a record of right in the ensuing words-
"A record of rights has been described by Sir
Henry Maine as a detailed stat ement of all
rights in land drawn up periodically by the
functionaries employed in setting the claims of
the Government to its shares of the
rental........ Though it does not create a 14
title, it gives rise to a presumption in its
support, which prevails until its correctness is
successfully impugned."
To sum up , we have found that the Court of Appeal
below put special emphasize as to how the defendants
proved their case ignoring the plaintiffs ’ steps of
proving the same on evidence. The law enjoins it is th e
bounden duty of the Court to discuss first how the
plaintiff proved its case to the hilt. In a judicial
proceeding, where all souls solicit justice equally and
are entitled to the same, the plaintiff usually has to
prove its case. In this situation, the plaintiffs ’
ownership of the land is backed by official records more
specifically the RS record of rights. But when the case
went to the lower appellate Court in the appeal, it
didn't give enough importance to these records. E ven
though the lower appellate Court acknowledged the
plaintiffs’ rights supported by the unchallenged RS
record of rights, it didn't impartially and objectively
handle the proceedings to rectify the true ownership of
the suit land. We acknowledge that in the realm of 15
judicial proceedings related to land rights, where the
plaintiff bears the weight of proof, the sanctity of RS
records serves as an unwavering beacon of truth as
cemented by the section 144A of the State Acquisition and
Tenancy Act. We also re cord, since the matter has been
decided to the hilt as aforesaid , question of
registration of solenama (exhibit C1) has become
redundant.
Another point is the question of limitation as
raised. The question of limitation is a mixed question of
fact and law. The submissions of the learned counsel for
the respondents on the question of limitation have no
legs to stand. T he lower appellate Court, in this regard
remained oblivious and for that reason we are of the view
that no deliberation is required to address the point.
The High Court Division absolutely treading on a
wrong premise overlooked all these aspects holding the
decisions of the lower appellate Court to be correct.
Accordingly, this appeal is allowed. The judgment and
order passed by the High Court Division and the lower 16
appellate Court is set aside. The judgment of the trial
Court is restored.
J.
J.
J.
J.
The 25th April, 2024
/Ismail,B.O./*2836*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.128 OF 2016
(From the judgment and decree dated 15.02.2011 passed by the High Court Division in Writ petition
No.7817 of 2009).
Mrs. Aziz Ara Rahman ……..….Appellant
-Versus-
Rajdhani Unnayan Kartipakkha (RAJUK)
and others
.…..….Respondents
For the appellant
: Mr. Kamal-Ul-Alam, senior Advocate with
Ms. Shahana Akther, Advocate, instructed
by Mr. Syed Mahbubor Rahman,
Advocate-on-Record.
For respondents
No.1-4
: Mr. Md. Imam Hasan, Advocate,
instructed by Mr. Mohammad Ali Azam,
Advocate-on-Record.
For the respondent
No. 5
: Not represented.
Date of hearing : The 5th day of December, 2023
Date of judgment : The 6th day of December, 2023
JUDGMENT
Obaidul Hassan, C.J. This Civil Appeal by leave granting order
dated 24.01.2016 in Civil Petition for Leave to Appeal No.1354 of
2011 is directed against the judgment and order dated 15.02.2011
passed by the High Court Division in Writ Petition No.7817 of 2009
discharging the Rule.
The relevant facts necessary for disposal of this Civil Appeal
are, in a nutshell, that the appellant as writ petitioner filed Writ
Petition No.7817 of 2009 before the High Court Division seeking
=2=
direction upon the writ respondents to deliver physical possession
of Plot No.5, Road No.29, Gulshan Residential Area, Dhaka to the
writ petitioner-appellant upon evicting illegal occupant therefrom
and to execute and register the lease deed in respect of the said plot
in favour of the writ petitioner-appellant.
The appellant filed the Writ Petition contending, inter alia, that
she got allotment of the aforesaid plot by Rajdhani Unnayan
Kartripakkha (RAJUK), which was communicated to her vide Memo
dated 16.11.1995. Subsequently, on payment of the entire
consideration money to the tune of Tk.36,87,428.00 (Taka Thirty Six
Lac Eighty Seven Thousand Four Hundred Twenty Eight only)
within the stipulated time the appellant applied for handing over
physical possession of the said allotted plot in her favour on
27.09.2004, whereupon the concerned officer of RAJUK when went
to the said plot for handing over physical possession of the same to
the appellant it was found that a developer firm namely Mega
Builders engaged by writ-respondent No.5 Shamsher Ali Miah had
been illegally possessing the plot and making illegal construction
without obtaining any approved plan from RAJUK. Thereafter, on
03.11.2004 an enquiry committee was constituted by RAJUK to
enquire into the matter and that the said enquiry committee by a
notice dated 29.11.2004 asked the writ-respondent No.5 to appear at
a hearing before the enquiry committee on 03.01.2005 and to submit
written statement with relevant papers. Although the writ
=3=
respondent No.5 primarily appeared before the enquiry committee
and submitted a written statement with some papers but without
waiting for the result of the enquiry and decision of RAJUK thereon
filed another Writ Petition being No.3030 of 2005 on 07.05.2005 in
the High Court Division challenging the validity of the said notice
dated 29.11.2004 and obtained a Rule Nisi and an interim order of
injunction while the appellant got herself added as a respondent in
Writ Petition No.3030 of 2005 and subsequently on 04.07.2005 the
said order of injunction was stayed by this Division in Civil Petition
for Leave to Appeal No.704 of 2009. Later on, the writ respondent
No.5 filed another Writ Petition being No.11099 of 2006 on
16.11.2006 before the High Court Division praying for declaration
that the letter of allotment dated 16.11.1995 issued by RAJUK in
favour of appellant was without lawful authority and of no legal
effect and obtained a Rule Nisi. The appellant as well as RAJUK
opposed both the Rules by filing Affidavit-in-Opposition. Upon
hearing both the Writ Petitions by a Division Bench of the High
Court Division both the Rules were discharged vide two separate
judgments dated 05.11.2007 against which the respondent No.5 filed
Civil Petition for Leave to Appeal No.713 of 2007 and Civil Petition
for Leave to Appeal No.1331 of 2008 before this Division. Upon
hearing both the aforesaid Civil Petitions for Leave to Appeal were
dismissed by this Division vide judgments dated 27.11.2007 and
25.05.2009 respectively. Thereafter the writ-petitioner-appellant
=4=
made several requests and representations to writ-respondents
No.2-4 for handing over physical possession of the aforesaid allotted
plot and to execute lease deed in her favour, but did not get any
response. Lastly, on 05.08.2009 the appellant made a representation
in writing to the Chairman, RAJUK annexing thereto the
aforementioned judgments requesting him to take necessary steps
for handing over physical possession of the allotted plot to her upon
evicting the illegal occupants therefrom and also to execute and
register the lease deed in her favour. But the respondents did not
take any step in this regard, nor make any response thereto. Hence
the writ petitioner-appellant was constrained to file Writ Petition
No.7817 of 2009 before the High Court Division on 17.12.2009 and
obtained Rule and an order of injunction upon the writ respondents
from transferring the disputed plot and from changing the nature
and character of the property for a period of 03(three) months. The
said order of injunction was extended from time to time and lastly
on 15.02.2010 it was extended till disposal of the Rule.
The writ-respondent No.1 herein also respondent No.1-
RAJUK contested the said Writ Petition by filing an Affidavit-in-
opposition and contended that there are 10 apartments including
parking space in the ground floor of the disputed plot which is
occupied by the respondent and others and unless all the occupants
of the flat are evicted therefrom, RAJUK will get no scope to hand
over the vacant possession of the land by executing lease deed.
=5=
On the other hand, the writ-respondent No.5 also respondent
No.5 herein filed affidavit-in-opposition contending, inter alia, that
the land of disputed plot belonged to him which he purchased by
four registered deeds dated 06.06.1980 and got mutated his name in
the said land and paid up to date rent. The Dhaka City Survey was
prepared without any objection by erstwhile DIT now RAJUK in the
name of the respondent No.5 in Khatian No.1649 which is final
proof of his ownership. Subsequently the respondent No.5 entered
into an agreement with a developer company for construction of a
residential building in accordance with the plan approved by
RAJUK. Thereafter, when dispute arose he filed two Writ Petitions
being No.3030 of 2005 and 11099 of 2006 and both the Rules issued
in those Writ Petitions had been discharged on the ground of
maintainability.
Being aggrieved he filed Civil Petitions for Leave to Appeal
No.713 of 2007 and 1331 of 2008 before this Division which were
also dismissed. Subsequently, he filed Title Suit No.373 of 2005
praying for declaration of title to the extent of .1020 acres of land
appertaining to C.S. Plot No.268. Therefore, the present Writ
Petition filed by the appellant is not maintainable during the
pendency of the said suit.
Upon hearing the High Court Division discharged the Rule
vide impugned judgment and order dated 15.02.2011. On being
aggrieved and dissatisfied with the judgment and order dated
=6=
15.02.2011 passed by the High Court Division in Writ Petition
No.7817 of 2009 the appellant filed Civil Petition for Leave to
Appeal No.1354 of 2011 before this Division. Upon hearing on
24.01.2016, this Division granted leave and hence the instant Civil
Appeal.
Mr. Kamal-Ul-Alam, learned senior Counsel appearing on
behalf of the appellant contends that the judgments and orders of
the High Court Division in Writ Petitions No.3030 of 2005 and 11099
of 2006 between the self same parties as affirmed by the judgments
and orders of this Division in Civil Petitions for Leave to Appeal
Nos.713 of 2007 and 1331 of 2008 respectively holding that the
disputed plot allotted to the appellant is not situated in C.S. and S.A.
Plot No.268 as claimed by the respondent No.5 and the said plot has
not been released from acquisition made in L.A. Case No.10/63-64
and as such the High Court Division on the face of the aforesaid
decisions of the Apex Court was in breach of Article 111 of the
Constitution in passing the impugned judgment and order
discharging the Rule issued in Writ Petition No.7817 of 2009. The
learned senior Counsel contends next that the High Court Division
was wholly wrong in law and acted beyond its jurisdiction in not
giving effect to the binding force of the earlier decisions of the
Appellate Division in Civil Petitions for Leave to Appeal No.713 of
2007 and 1331 of 2008 regarding the disputed plot of the case in
hand holding that the aforesaid decisions of the Appellate Division
=7=
although has got binding force but the fact of pendency of Title Suit
No.373 of 2005 filed on 03.09.2005 by the respondent No.5 was not
brought to the notice of the Appellate Division and as such the
impugned judgment is liable to be set aside. The learned senior
Counsel urges next that on the face of the decisions and findings in
the Writ Petition Nos.3030 of 2005 and Writ Petition No.11099 of
2006 as affirmed by the Appellate Division in Civil Petition for
Leave to Appeal No.713 of 2007 and Civil Petition for Leave to
Appeal No.1331 of 2008 to the effect that C.S. Plot No.268 being a
requisitioned and acquisitioned land the occupant therein will be
treated as a trespasser under the principle of law enunciated in 9
BLC(AD)56, and as such the High Court Division was wholly wrong
in law in passing the impugned judgment and order discharging the
Rule holding that the respondent No.5 is in possession of plot
No.268 and as such direction for delivery of possession of the
disputed C.S. Plot No.268 to writ-petitioner-appellant cannot be
given unless the dispute is settled in Title Suit No.373 of 2005. The
learned senior Counsel contends, in fine, that the High Court
Division was wrong in law in discharging the Rule on total
misconception of law as to applicability of the principle of res
judicata in writ proceedings inasmuch as it is settled law that a
decision in earlier writ petitions on the selfsame issues between the
same parties operates as res judicata in subsequent proceedings
either in suits or writ proceedings and a question decided in an
=8=
earlier writ petition disposed of on merit cannot be reagitated in a
subsequent suit between the same parties on the principle of res
judicata.
On the other hand, Mr. Md. Imam Hasan, learned Counsel
appearing for the respondents No.1-4 echoing with the same voice
of the learned Counsel for the appellant submits that RAJUK is the
original owner of the disputed plot by way of acquisition and the
appellant took allotment of the said plot from RAJUK in accordance
with law and RAJUK has no objection if the possession of the plot in
question is handed over to the appellant.
However, none appears on behalf of the respondent No.5 to
contest the appeal.
We have considered the submissions of the learned Counsel
for both the sides, perused the impugned judgment and order dated
15.02.2011 passed by the High Court Division in Writ Petition
No.7817 of 2009 as well as other materials on record.
It is undisputed that earlier the respondent No.5 filed Writ
Petitions No.3030 of 2005 and 11099 of 2006 before the High Court
Division regarding the allotment of the disputed plot in favour of
the appellant but upon hearing both the Rules were discharged vide
judgments and orders dated 05.11.2007. Against the judgment and
order passed in Writ Petition No.3030 of 2005 the respondent No.5
filed Civil Petition for Leave to Appeal No.713 of 2007 before this
Division which was dismissed upon hearing on 27.11.2007.
=9=
Subsequently, while the respondent No.5 filed Civil Petition for
Leave to Appeal No.1331 of 2008 before this Division challenging
the judgment and order dated 05.11.2007 passed by the High Court
Division in Writ Petition No.11099 of 2006 which was also dismissed
on 25.05.2009.
While discharging the Rule in Writ Petition No.11099 of 2006
the High Court Division observed the following:
“It appears from the writ petition that the petitioner
himself admitted that the land was handed over to the
requiring body and in such circumstances the petitioner
cannot claim the land by way of right and admittedly
the said land in question was requisitioned in
accordance with law. So the allegation of discrimination
does not apply in the instant case.
In view of the decisions as referred to and the provision
of law specially the Town Improvement Act 1953 and in
view of the notification dated 30.06.2001 published in
the Bangladesh Gazette on 02.08.2001 it appears that the
land claimed by the petitioner is still a requisitioned
property and in such circumstances the petitioner has no
locus standi to challenge the impugned allotment made
by the requiring body in accordance with law. Hence we
find no merit in this Rule.”
(underlines supplied by us)
Again, the High Court Division observed in the judgment
dated 05.11.2007 passed in the Writ Petition No.3030 of 2005 as
under:
=10=
“Furthermore the petitioner in the instant case miserably
failed to show the nexus in between the plot No.5, Road
No.29, Gulshan Model Town and C.S. Plot No.268 in any
manner. Furthermore the petitioner categorically admits
the said land was requisitioned under L.A. Case as
evident in Annexure-H to the writ petition. He also
failed to show any document that the said plot No.268
was released from requisition by the authority under
any law. From a plain comparison of Annexure- H to the
writ petition with Annexure-I to the affidavit-in-
opposition it appears that only 14.68 acres of land were
released out of 22.50 acres of land in 20 plots, but no
land of plots namely 268, 267 or 270 has been released as
per the gazette notification as evident in Annexure-I and
as such the plot No.268, 267, 270 are still under
requisition. Also the respondent No.2 annexed two
inquiry slip wherein it transpires that the entire C.S. Plot
No.268 has been requisitioned and the admitted
predecessor-in-interest of the petitioner Hazera Khatun
took entire compensation money as per the award
register maintained by the authority and the same is
under direct control of Kartipakkhya. In a case reported
in 9 BLC(AD)56 (Abdul Huq vs. Government of the
People’s Republic of Bangladesh represented by the
Secretary, Ministry of Land and others) their Lordships
observed as follows:
“Though the petitioners have been alleging to be
in possession of the land but their possession are
no better than that of trespassers as upon
requisition of the lands, the authority has taken
=11=
over the possession from the original owners and
handed over to the requiring body that is RAJUK.”
Since none of the plots namely C.S. Plots No.267, 268 or
270 has ever been released from requisition in any
manner and since the impugned order challenged by the
petitioner is mere a notice of appearance for submitting
some papers to resolve a dispute relating to title and
description and since the petitioner appeared and
submitted two written replies therein, the petitioner
cannot get any relief in this Rule as prayed for.”
(underlines supplied by us)
More importantly, this Division while dismissing the Civil
Petition for Leave to Appeal No.1331 of 2008 filed by the respondent
No.5 against the judgment and order dated 05.11.2007 passed by the
High Court Division in Writ Petition No.11099 of 2006 observed the
following:
“We have perused the leave petition as well as the
judgment and order dated 05.11.2007 passed in Writ
Petition No.3030 of 2005 as well as the Annexures-3(C), 4
and 5 at pages 331, 332 and 335 of the paper book and
having regard to the discussion made in the impugned
judgment by the High Court Division and the
submissions of the learned Advocate for the leave-
petitioner we are of the view that the Plot No.5 of Road
No.29 of Gulshan Residential Area is not situated in C.S.
and S.A. Plot No.268 as claimed by the leave petitioner
and the said plot No.268 has not been released from the
acquisition made in L.A. Case No.10/63-64 as claimed
=12=
by the leave-petitioner. Accordingly we do not find any
merit in the leave petition.”
(underlines supplied by us)
It is transparent from the above that the High Court Division
in Writ Petitions No.11099 of 2006 and 3030 of 2005 found that plot
No.5, Road No.29, Gulshan Model Town is not situated in C.S. Plot
No.268 and none of the plots namely C.S. Plots No.267, 268 or 270
has ever been released from requisition in any manner.
Subsequently, this Division upon an elaborate discussion firmly
established the above findings of the High Court Division in Civil
Petition for leave to Appeal No.1331 of 2008 while the Civil Petition
for Leave to Appeal No.713 of 2007 filed by the respondent No.5
against the judgment passed in Writ Petition No.3030 of 2005 was
also dismissed by this Division. In view of the observations made by
this Division in Civil Petition for leave to Appeal No.1331 of 2008 it
is by now finally settled that respondent No.5 cannot claim any
valid right and claim over the land of disputed plot of the case in
hand while the respondent No.1 became the owner of the land of
disputed plot by way of acquisition. Although in the present case
the respondent No.5 claims to be in possession of the disputed plot
in view of the settled legal proposition the status of the respondent
No.5 in the disputed plot is no better than a mere trespasser.
It is the case of the appellant that she took the allotment of the
disputed plot from the respondent No.1, RAJUK vide memo dated
=13=
16.11.1995. Now the pertinent question is that whether the appellant
has acquired a valid right and title of the disputed plot. Since it has
already been settled by this Division that the land of disputed plot
was acquired by RAJUK in accordance with law and the said land
was not delisted from the acquisition, it is our considered view that
the appellant having taken allotment of the same from RAJUK has
acquired a legitimate right and title over it.
There is another facet of the case that is the respondent No.5
instituted Title Suit No.373 of 2005 impleading the appellant as well
as respondent No.1 along with others seeking declaration of title in
the land of the disputed plot. Then a pertinent question arises
whether the principle of res judicata is applicable in Writ Petition. It
transpires from the record that while discharging the Rule issued in
Writ Petition No.7817 of 2009 the High Court Division observed that
the writ petition is not maintainable since a title suit is pending over
the title of the land in question. The learned Counsel for the
appellant strenuously claims that since High Court Division has
already made decision regarding the right and title of the
respondent No.5 in Writ Petitions No.11099 of 2006 and 3030 of 2005
filed by him, the same issue cannot be reopened in the Writ Petition
No.7817 of 2009 inasmuch as it is barred by the principle of res
judicata. In this regard, it is our considered view that the High Court
Division committed illegality in passing the impugned judgment
without taking into consideration that earlier in Writ Petitions
=14=
No.11099 of 2006 and 3030 of 2005 the High Court Division found
that the respondent No.5 has no right and title over the disputed
plot. But in the case in hand, the High Court Division while dealing
with the Writ Petition filed by the appellant held relying on the
claim of the respondent No.5 to the effect that since the case
involves the disputed question of facts as to the title over the
disputed plot the same should be settled in Title Suit No.373 of 2005
filed by the respondent No.5 and as such the Writ Petition is not
maintainable. The above findings of the High Court Division is
absolutely unwarranted inasmuch as the fresh consideration of title
of the respondent No.5 in disputed plot which has already been
decided earlier by the High Court Division in Writ Petitions
No.11099 of 2006 and 3030 of 2005 is barred by the principle of res
judicata.
The rationale behind the principle of res judicata has been
elucidated by the Indian Supreme Court in the case of State of
Karnataka and others vs. All India Manufacturers Organization and
others, AIR 2006 SC 1846. The relevant portion is extracted below:
“32. res judicata is a doctrine based on the larger public
interest and is founded on two grounds: one being the
maxim nemo debet bis vexari pro una et eadem causa (P.
Ramanatha Aiyer, Advanced Law Lexicon (Vol.3 3rd
Edn., 2005) at page 3170.) (“No one ought to be twice
vexed for one and the same cause”) and second, public
policy that there ought to be an end to the same
=15=
litigation (Mulla, Code of Civil Procedure (Vol.1, 15th
Edn., 1995) at page 94. It is well settled that Section 11 of
the Civil Procedure Code, 1908 (hereinafter “the CPC”)
is not the foundation of the principle of res judicata, but
merely statutory recognition thereof and hence, the
Section is not to be considered exhaustive of the general
principle of law. (see Kalipada De v. Dwijapada Das)
The main purpose of the doctrine is that once a matter
has been determined in a former proceeding, it should
not be open to parties to re-agitate the matter again and
again. Section 11 of the CPC recognises this principle
and forbids a court from trying any suit or issue, which
is res judicata, recognising both ‘cause of action estoppel’
and ‘issue estoppel’.”
(underlines supplied by us)
At this juncture, a plausible question albeit carrying a great
importance peeps into our mind whether the principle of res judicata
is applicable in case of a subsequent suit. In this regard, it has been
observed by the Indian Supreme Court in oft-cited case of Gulab
Gulabchand Chhotalal Parikh vs. State of Bombay AIR 1965 SC 1153
that-
“73.................the provisions of section 11 CPC are not
exhaustive with respect to an earlier decision operating
as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit and
that on the general principle of res judicata, any previous
decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties
to prove their case by a Court competent to decide it will
=16=
operate as res judicata in a subsequent regular suit.
..........................The nature of the former proceeding is
immaterial.”
(underlines supplied by us)
It appears from the aforesaid decision that any previous
decision on a matter in controversy in a legal proceeding including
writ petition decided after full contest by the parties or after
affording fair opportunity to the parties to prove their case will
operate as res judicata in a subsequent regular suit. Therefore, in
view of the above decision of the Indian Supreme Court we hold
that since the right and title of the respondent No.5 in the disputed
land has not been found by the High Court Division in Writ
Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of
the respondent No.5, subsequent suit being No.373 of 2005
instituted by the respondent No.5 for declaration of title so far as it
relates to the disputed plot claimed by the appellant in Writ Petition
No.7817 of 2009 is barred by the principle of res judicata.
Be that as it may, it transpires from the additional paper book
filed by the appellant that the defendant No.3-appellant filed an
application for rejection of plaint of Title Suit No.373 of 2005 under
Order VII Rule 11 of the Code of Civil Procedure, 1908, but the trial
Court upon hearing on 28.02.2012 rejected the said application.
Challenging the aforesaid order dated 28.02.2012 the appellant filed
Civil Revision No.1516 of 2012 before the High Court Division and
=17=
upon hearing the High Court Division on 15.05.2018 set aside the
order 28.02.2012 passed by the trial Court and allowed the
application for rejection of plaint of Title Suit No.373 of 2005.
While arguing the learned senior Counsel for the appellant
emphatically claims that in Civil Petition for Leave to Appeal
No.1331 of 2008 this Division held that the disputed plot is not
situated in C.S. and S.A. Plot No.268 as claimed by the respondent
No.5 and the said plot has not been released from acquisition made
in L.A. Case No.10/63-64 and as such the High Court Division on
the face of the aforesaid decision of the Apex Court was in breach of
Article 111 of the Constitution. To address the said issue we need to
advert to the provisions of Article 111 of the Constitution of
Bangladesh which enunciates as follows:
“Article 111. The law declared by the Appellate Division
shall be binding on the High Court Division and the law
declared by either division of the Supreme Court shall
be binding on all courts subordinate to it.”
In the case of Secretary, Posts and Telecommunications Division,
Ministry of Posts and another vs. Shudangshu Shekhar Bhadra and others
reported in 25 ALR(AD)(2022) 19 at paragraph 22 this Division very
eloquently stated that:
“...............the provision of Article 111 of the Constitution
enjoining upon all courts below to obey the law laid
down by this Court, judicial discipline requires that the
High Court Division should follow the decision of the
=18=
Appellate Division and that it is necessary for the lower
tiers of courts to accept the decision of the higher tiers as
a binding precedent.
(underlines supplied)
In view of above, it is quite evident that the law declared by
this Division regarding a subject matter is always binding on the
High Court Division as well as other subordinate Courts. Since this
Division in Civil Petition for Leave to Appeal No.1331 of 2008 has
already categorically found that the respondent No.5 has no right
and title in the disputed plot the impugned judgment passed by the
High Court Division violates the provisions of Article 111 of the
Constitution.
In the light of the aforesaid reasons as well as an elaborate
discussion regarding the factual and legal aspects of the case the
impugned judgment and order dated 15.02.2011 passed by the High
Court Division in Writ Petition No.7817 of 2009 warrants
interference by this Division. Therefore, we find merit in the
submissions of the learned senior Counsel for the appellant. In the
prevailing circumstances, the impugned judgment and order of the
High Court Division cannot stand at all in the eye of law.
Accordingly, the instant Civil Appeal is allowed.
The judgment and order dated 15.02.2011 passed by the High
Court Division in Writ Petition No.7817 of 2009 is set aside.
=19=
The respondents No.1-4 are hereby directed to hand over the
possession of plot No.5, Road No.29, Gulshan Residential Area,
Dhaka within 60(sixty) days in favour of the present appellant from
the date of receipt of this order.
The respondents No.1-4 are also directed to complete all legal
formalities including execution of all legal deeds and registration in
favour of the appellant in accordance with law.
C.J.
J.
J.
J.
J.
The 06th day of December, 2023
RRO/Total words- 4,540
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.304 OF 2016
(From the judgment and decree dated 22.02.2011 passed by the High Court Division in First Appeal
No.92 of 2009).
Babru Mia ……..….Appellant
-Versus-
Mosammat Noorjahan Begum and others .…..….Respondents
For the appellant
: Mr. Md. Nurul Amin, senior Advocate
with Mr. A.M. Amin Uddin, senior
Advocate and Mr. Khair Ezaz Maswood,
senior Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For respondents
No.1-2
: Mr. Probir Neogi, senior Advocate with
Mr. Taposh Kumar Biswas, Advocate and
Mr. Sk. Shaifuzzaman, Advocate
instructed by Mr. Sayed Mahbubur
Rahman, Advocate-on-Record.
For respondents
No.3-7
: Not represented.
Dates of hearing : The 10th day of October, 2023 and 14th day
of November, 2023
Date of judgment : The 20th day of November, 2023
JUDGMENT
Obaidul Hassan, C.J. This Civil Appeal by leave granting order
dated 06.03.2016 in Civil Petition for Leave to Appeal No.496 of 2012
is directed against the judgment and decree dated 22.02.2011 passed
by the High Court Division in First Appeal No.92 of 2009 allowing
the appeal and thereby setting aside the judgment and decree dated
=2=
23.02.2009 passed by the learned Joint District Judge, 1st Court, Dhaka
in Title Suit No.213 of 1998 decreeing the suit.
The relevant facts necessary for the disposal of this Civil
Appeal are that the appellant as plaintiff instituted Title Suit No.213
of 1998 for declaration of title and recovery of possession of the land
described in schedule ‘C’ to the plaint. The averment of the plaint are,
in a nutshell, that the land of C.S. Plots No.129 and 130 measuring an
area of .24 acre of land as described in schedule ‘A’ to the plaint
belonged to Khargo Gowala who gifted the same to his son
Deokumar Gowala on 29.11.1912 and delivered possession to him.
Deokumar transferred the same to Norendra Nath Ghosh, who
purchased in the benami of Satish Chandra by registered document
dated 15.07.1914. Subsequently Satish Chandra executed a registered
‘Nadabipatra’ in favour of Narendra Nath on 27.02.1921. Said
Narendra Nath transferred the same to one Prodyut Kumar Ghosh
by registered gift dated 19.11.1937 and said Prodyut subsequently
transferred the ‘A’ schedule land to one Satya Ranjan by registered
sale deed dated 18.12.1947. Said Satya Ranjan granted permanent
lease of the said land to one Hazi Md. Arif by registered deed dated
19.09.1950 and on the same day Satya Ranjan also transferred the rent
receiving interest to Ziaul Haque, who again transferred the rent
receiving interest to Hazi Md. Arif by registered sale deed dated
24.03.1951. Thus, Hazi Md. Arif became the owner of schedule ’A’
=3=
land and got mutated his name by paying rent and accordingly had
been possessing the same for more than twelve years. Thereafter,
Hazi Md. Arif orally settled the land to the plaintiff Babru Mia on
04.01.1953 at annual rent of Tk.150.00 and put him into physical
possession thereof and subsequently the terms and conditions of the
tenancy were embodied in an agreement dated 15.01.1953 and the
same was renewed by another agreement dated 30.12.1958.
The plaintiff erected several huts in Plot No.129 for the
residence of his family and for running business. He also filled up the
pond of C.S. Plot No.130 and constructed huts and single-roofed tin-
shed house thereon and let out one tin-shed room situated on the
schedule-‘B’ land to one Mohiuddin Ahmed by registered deed of
lease dated 09.05.1960 for a period of 8 years. On the same date the
plaintiff let out the schedule-‘C’ property to Abul Kashem, the
predecessor of the defendants by registered lease deed for a period of
8 years. The then Government of East Pakistan acquired some land
out of schedule-‘A’ through L.A. Case No.25 of 1959-60 and prepared
award for the structures in the names of the plaintiff and others. But
the plaintiff raised objection against preparation of award in the
names of others and as such the authority stayed the payment of
compensation money till final decision regarding the right and title of
the land in question by the civil Court. After expiry of the lease
period of Mohiuddin Ahmed in schedule-‘B’ land, he handed over
=4=
possession to the plaintiff and the plaintiff constructed three-storied
building thereon and has been in possession of the same.
It is further stated that one Tara Ram filed Title Suit No.79 of
1964 in the 3rd Court of the then Sub-Judge, Dhaka impleading
Kashem Mia, Mohiuddin Ahmed and the plaintiff as defendants
No.1-3 for declaration of title and recovery of possession in respect of
the land of C.S. Plot No.130. The defendants No.1-3 jointly filed
written statement wherein Kashem Mia and Mohiuddin Ahmed
admitted the plaintiff as their lessor. The said suit was dismissed on
31.05.1968. Fulbashia Muchi, the wife of Tara Ram Jahoara also filed
Pauper Suit No.87 of 1962 in the 3rd Court of the then Sub-Judge,
Dhaka impleading Manik Chand and the plaintiff along with others
for declaration of title and recovery of possession of the land of C.S.
Plot No.129 claiming to be the heirs of Algu Muchi and the said suit
was also dismissed. It is further stated that Manik Chand and others
dispossessed the plaintiff from the hut measuring 18 cubits X 13
cubits situated in Plot No.129 resulting into filing of Title Suit No.05
of 1972 in the 3rd Court of the then Sub-Judge, Dhaka for declaration
of title and recovery of possession and the same was decreed ex parte
and the plaintiff got possession through Court. The land measuring 3
decimals appertaining to C.S. Plots No.129 and 130 was wrongly
recorded in the name of Government in S.A. Khatian against which
the plaintiff filed Title Suit No.273 of 1964 in the 1st Court of the then
=5=
Munsif, Dhaka for declaration of title which was decreed ex parte on
22.05.1969.
The further case of the plaintiff is that after expiry of the lease
period of Abul Kashem he did not vacate the suit property and as
such the plaintiff filed SCC Suit No.02 of 1974 in the then 3rd Court of
Munsif, Dhaka which was subsequently renumbered as SCC Suit
No.01 of 1982. On the other hand, Abul Kashem filed Title Suit No.07
of 1985 in the then 4th Munsif Court, Dhaka against the plaintiff for
cancellation of registered deed of lease dated 09.05.1960 alleging that
the same was obtained fraudulently and the said suit was dismissed
on 30.03.1985. During S.A. operation, the entire land of C.S. Plots
No.129 and 130 was recorded in the name of Hazi Md. Arif in S.A.
Plots No.140-142 and in the remark column of the said Khatian the
possession of the property was noted in the name of the plaintiff
under Hazi Md. Arif. Subsequently, during R.S. operation R.S.
Khatian No.188 was correctly prepared in the name of the plaintiff.
The SCC Suit No.01 of 1982 was decreed on contest on 29.08.1990 and
Md. Abul Kashem filed Civil Revision No.424 of 1991 before the High
Court Division against the said judgment and obtained Rule. During
the pendency of the said Civil Revision Md. Abul Kashem died
leaving behind the defendants and ultimately the Rule was made
absolute by the judgment and decree dated 06.06.1995 and thereby
the decree passed in SCC Suit No.01 of 1982 was set aside. The
=6=
plaintiff preferred Civil Petition for Leave to Appeal No.585 of 1995
before this Division and the same was dismissed by judgment and
order dated 16.05.1996 with the observation that since serious
question of title is involved in the case simple SCC suit was not
maintainable. Meanwhile Abul Kashem and his wife Nurjahan
Begum and son Abdul Matin filed Title Suit No.495 of 1985 in the 3rd
Court of Subordinate Judge, Dhaka against the plaintiff for
declaration of title in the suit property and the suit on transfer was
renumbered as Title Suit No.94 of 1988 and the same was dismissed
for default on 03.06. 1997. The defendants have no title and interest in
the suit property. Abul Kashem was a tenant under the plaintiff and
the defendants are sub-lessee under the plaintiff.
The defendants No.1-3 contested the suit by filing a written
statement denying the averments made in the plaint and contended,
inter alia, that while owned and possessed the suit property by Monu
Mia and Algu Muchi, Abul Kashem entered into possession of the
same in the year 1952 and started a business thereon in the name and
style ‘Matin Restaurant’. Abul Kashem developed the land by earth
filing and made construction thereon at his own cost. A portion of the
suit land along with structures was acquired in L.A. Case No.25 of
1959-60 for construction of the road and notice of acquisition was
issued upon Abul Kashem and his wife and son and they were
accordingly paid compensation. Abul Kashem purchased possession
=7=
of the suit land from Monu Mia by registered deed dated 10.05.1955.
The plaintiff and Mohiuddin also enjoyed some other lands in the
similar way without any title deed. The plaintiff asked Abul Kashem
and Mohiuddin to pay him so that he could bring a title deed from
the real owner migrated to India. Taking advantage of such trust the
plaintiff by practicing fraud and forgery created some false
documents and suggested Abul Kashem and Mohiuddin to make an
amicable deed of partition of the land. But the plaintiff instead of
preparing the partition deed, created the lease deed dated 10.09.1968.
with a view to deceive the illiterate Abul Kashem. The lease deeds in
respect of ‘B’ and ‘C’ schedule property in favour of Mohiuddin and
Kashem were false, fraudulent and void. In fact, the plaintiff and
Mohiuddin and Kashem took possession of three different pieces of
land from its existing possessors Monu Mia and the wife of Algu
Muchi named Fulbashia and subsequently after the death of
Mohiuddin the plaintiff took possession of the land as he died
leaving behind no issue. The alleged decrees passed in Title Suit
Nos.273 of 1964 and 05 of 1972 are fraudulent and collusive. Taking
advantage of simplicity and ignorance of Abul Kashem and
Mohiuddin, the plaintiff got filed written statements by them in Title
Suit No.79 of 1964 and Title Suit No.87 of 1962 against their interests.
The plaintiff obtained ex parte decree in Title Suit No.05 of 1972
fraudulently on false claim that Abul Kashem never entered into the
=8=
suit land on the basis of alleged agreement with the plaintiff. In fact,
Abul Kashem had been in possession of the suit property since the
year 1952. The Khatian prepared in the name of Hazi Arif and the
entry regarding possession of the suit land in the name of the plaintiff
in the remark column was wrong. Abul Kashem and upon his demise
the defendants have been maintaining possession on the suit
property asserting their own right and title therein. They paid rent
and taxes to the city corporation and they never accepted the plaintiff
as landlord nor paid any rent to the plaintiff. The plaintiff is not
entitled to any relief in the instant suit. A competent Court decided
the matter in SCC suit wherein this Division found in Civil Petition
for Leave to Appeal No.585 of 1995 and in Civil Review Petition
No.18 of 1996 that the alleged agreement for lease as claimed by the
plaintiff was not acted upon. Abul Kashem was in possession of the
suit land and upon his demise the defendants have been in exclusive
possession and enjoyment in the suit property within the knowledge
of all. Thus, they have acquired an indefeasible title in the suit
property.
The defendants No.1-3 filed additional written statement
contending that the alleged deed of gift dated 29.11.1912 and the
alleged sale deed dated 15.07.1914 as stated in the plaint do not relate
to the suit property rather those relate to other non-suit land. Deo
Kumar Gowala did not acquire any right, title and possession in the
=9=
suit property by the alleged deed of gift dated 29.11.1912. The
plaintiff, Mohiuddin and Abul Kashem possessed the land of suit
plots No.l29-130 in equal share claiming independent title under
different persons. Abul Kashem and Mohiuddin entrusted the
plaintiff to get their names recorded in the Khatian, but the plaintiff
fraudulently recorded the suit plot in the name of Hazi Md. Arif
showing his name in the column of possession.
Subsequently, the defendants filed two separate additional
written statements wherein they reiterated the facts already stated in
the written statements and additional written statements filed earlier.
The trial Court framed four issues during the trial of the case.
The plaintiff examined himself as only P.W. while the defendants
examined four witnesses as D.Ws. No.1-4. The documentary
evidences adduced by the plaintiff had been marked as Exhibits-1
series to 13 series while those adduced by the defendants had been
marked as Exhibits-A series to K series.
The trial Court on completion of the trial decreed the suit by
judgment and decree dated 23.02.2009. Being aggrieved by the
judgment of the trial Court the defendants No.1-3 preferred First
Appeal No.92 of 2009 before the High Court Division against the
judgment and decree dated 23.02.2009 passed by the trial Court.
Upon final hearing the High Court Division was pleased to allow the
appeal by judgment and decree dated 22.02.2011.
=10=
Being disgruntled with the judgment and decree dated
22.02.2011 passed by the High Court Division in First Appeal No.92
of 2009 the plaintiff as petitioner filed Civil Petition for Leave to
Appeal No.496 of 2012 before this Division and leave was granted on
06.03.2016, hence the instant appeal.
Mr. Md. Nurul Amin along with Mr. A.M. Amin Uddin and
Mr. Khair Ezaz Maswood, all learned senior Counsel appearing on
behalf of the appellants taking us through the judgment and decree
dated 22.02.2011 passed by the High Court Division in First Appeal
No.92 of 2009, judgment and decree of the trial Court as well as the
other materials on record contended that the High Court Division has
committed illegality in totally misconceiving the case of the appellant
upon misreading and misconstruing the evidence and materials on
record and thereby misdirected beyond the law and facts of the case
in passing the erroneous decision allowing the appeal which caused
serious miscarriage of justice and as such the impugned judgment
and decree is liable to be set aside. The learned senior Counsel for the
appellant contended next that the plaintiff filed bundle of documents
to prove his right, title and possession in the suit land and the trial
Court also, on examination and consideration of all those documents
as well as other evidences on record came to clear finding that the
defendants are the lessees under the plaintiff, but the High Court
Division being appellate Court without reversing the findings of the
=11=
trial Court and without considering the materials evidence on record,
allowed the appeal setting aside the judgment of the trial Court. The
learned senior Counsel argued next that the predecessor of
defendants entered into possession of immovable property as a
tenant of the plaintiff and as such the defendants cannot deny the
title of the plaintiff. Moreover, the defendants admitted the plaintiff’s
title in Exhibits-8(a),10,11 and 11(a), but the defendants self-
contradictorily challenged the title of plaintiff, for which the
defendants are estopped from denying the title of the plaintiff in the
suit land. The learned senior Counsel contented further that the
appellate Court as the final Court of facts ought to have discussed all
the documentary evidences adduced by the plaintiff which is a clear
violation of law under Order XI Rule 33 of the Code of Civil
Procedure and the appellate Court as the final Court of facts should
have discussed each and every documents and as such the High
Court Division erred in law in allowing the appeal. The learned
senior Counsel argued next that despite the plaintiff did not plead
the case of adverse possession specifically in the plaint and the trial
Court did not frame any issue regarding adverse possession, but
during trial of the case sufficient evidence was brought on record
from which it is crystal clear that the plaintiff acquired title in the suit
land by virtue of adverse possession and in the aforesaid
circumstances the trial Court did not commit any illegality in finding
=12=
plaintiff’s title in the suit land by adverse possession but the High
Court Division most illegally set aside the said findings of the trial
Court on the mere reasoning that the plaintiff did not plead any case
of acquiring title by adverse possession ignoring the overwhelming
evidence on record proving plaintiff’s title in the suit land by adverse
possession. The learned senior Counsel submitted next that the
findings in SCC suit is not binding in a regular title suit and as such
in the case in hand the findings of this Division regarding the
previous SCC suit cannot have any negative effect and as such the
impugned judgment and decree is liable to be scraped. In support of
their submissions the learned senior Counsel for the appellants
referred some precedents reported in 24 BLD(AD) 43; 24 BLD(HCD)
243; 8 BLT(AD) 185; 39 DLR(AD) 78; 26 BLT(AD) 375; 16 DLR(SC)287.
Per contra, Mr. Probir Neogi, learned senior Advocate along
with Mr. Taposh Kumar Biswas, Advocate and Mr. Sk.
Shaifuzzaman, Advocate appearing on behalf of the respondents
No.1-2 contended that even the trial Court found that the basic
documents of the plaintiff dated 15.01.1953 and 30.12.1958 (Exhibits-3
and 3(a) respectively) did not confer any title to the plaintiff being
apparently invalid and void documents and as such the claim of the
plaintiff that the property which he acquired through Exhibit-3 series
was settled to defendants by Exhibit-4(a) dated 09.05.1960 holding
them as lessees under plaintiff falls through. The learned senior
=13=
Counsel for the respondents No.1-2 argued next that the case of the
plaintiff was denied by the defendants from its very inception and
the instant suit for declaration of title and recovery of possession was
not corroborated by any oral evidence while P.W.-1 is always
considered as an interested witness and nobody came before the
Court to prove the documentary evidence filed by the plaintiffs and
mere filing of the documents does not ipso facto means that those
were proved in evidence. Moreover, the finding of the trial Court that
the lease deed dated 09.05.1960 (Exhibit-4(a)) is a valid document
went against the finding of this Division made in Civil Petition for
Leave to Appeal No.585 of 1995 and Civil Review Petition No.18 of
1996. The learned senior Counsel for the respondents No.1-2
contended further that the claim of the plaintiff to the effect that he
entered into possession of the suit land in 1953 by virtue of Exhibit-3
from his vendor Hazi Arif but Hazi Arif is neither a witness nor a
party to the suit and there is nothing in evidence to show that the
plaintiff ever entered into the suit land in 1953 and no time and place
is mentioned in the pleading and no evidence is also available on the
record to prove the entry of the plaintiff in the suit land. The High
Court Division on consideration of Exhibits-7, Exhibits-C,C(1),C(2) &
F(1) found that defendants entered into the suit land before the
execution of alleged deed dated 09.05.1960 (Exhibit-4(a)) while the
possession of the plaintiff since 1953 has not been proved. The
=14=
learned senior Counsel for the respondents No.1-2 submitted next
that the High Court Division rightly found that declaration of title
and claim of adverse possession by the plaintiff cannot run
simultaneously and the second thought on the claim of possessory
right through the possession of the defendants as lessee or licencee
does not arise at all because in such event there would be a definite
case of possession followed by dispossession, moreover since Exhibit-
3 series were found by both the trial Court and the High Court
Division as invalid and void documents the possession of the
defendants in the suit land as lessee does not merit consideration and
as such the judgment passed by the High Court Division does not
warrant interference by this Division. The learned senior Counsel for
the respondents No.1-2 submitted next that the trial Court failed to
consider that the alleged claim of the plaintiff with respect to getting
into possession in the suit land in 1953 from Hazi Arif does never
mean hostile, thus the finding of trial Court on adverse possession of
the plaintiff in the suit land was misconceived specially when Hazi
Arif is not a party to the suit. The learned senior Counsel for the
respondents No.1-2 contended lastly that the judgment of the trial
Court is patently indicative of non-application of judicial minds to
the pleadings and evidences led by the parties in their true
perspectives and the High Court Division with the proper scrutiny
most legally allowed the appeal and as such the instant appeal is
=15=
liable to be dismissed. The learned senior Counsel for the
respondents No.1-2 relied on several case laws reported in 42
DLR(AD)154; 51 DLR(AD) 172; 5 BLD(AD)33; 51 DLR(AD) 257; 35
DLR(AD) 182 and 46 DLR(AD) 46.
We have perused the judgment and decree dated 22.02.2011
passed by the High Court Division in First Appeal No.92 of 2009. We
have also considered the submissions of the learned Counsel for both
sides and gone through the judgment and decree of the trial Court,
evidences as well as other materials on record.
The case of the plaintiff-appellant is that Hazi Md. Arif was the
owner of the suit land who orally settled the same to the plaintiff
Babru Mia on 04.01.1953 at annual rent of Tk.150.00 and inducted
him into physical possession of the suit land. Subsequently, the terms
and conditions of the tenancy were embodied in an agreement dated
15.01.1953 and the same was renewed by another agreement dated
30.12.1958. The plaintiff filed the lease deed dated 15.01.1953 (Exhibit-
3) and lease deed dated 30.12.1958 (Exhibit-3(a)). Those lease deeds
appear to be unregistered. The plaintiff claims acquisition of title of
the suit land by way of oral lease deeds. Admittedly, the suit land is
non-agricultural land and situated within the municipal area. Now
an important question arises whether the plaintiff acquired title by
virtue of the aforesaid unregistered lease deeds.
=16=
In this regard the trial Court referred the case of Khondker Ansar
Ahmed and others Vs. A.T.M. Monsur Ali Mallik and others reported in
60 DLR(AD) 33 where it was held in the following-
“It is the settled principle of Law that settlement of Non-
Agricultural land within Municipality cannot be effected
by unregistered document. The same must be effected by
bilateral registered document executed by both the lessor
and the lessee.”
(underlines supplied by us)
In view of the above proposition of law the trial Court observed
as follows:
registered deed
(underlines supplied by us)
The High Court Division also upheld the same view of the trial
Court. Having taking into consideration of the above settled position
of law we endorse the findings of the High Court Division on that
score. Therefore, it is unerringly found that the plaintiff could not
acquire title in the suit land on the basis of unregistered lease
agreement.
Moreover, from the recital of the unregistered agreement dated
15.01.1953 (Exhibit-3) it is apparent that by virtue of the so-called oral
agreement there was no settlement of the suit land by Hazi Md. Arif
=17=
to the plaintiff rather he was merely permitted to use and occupy the
said land for six years from the fourth day of January, 1953.
Subsequently, the permission to use the land was renewed for further
ten years by way of unregistered agreement dated 30.12.1958
(Exhibit-3(a)). Thus, there was no form of settlement at all in favour
of the plaintiff by way of Exhibits-3 and 3(a).
The plaintiff claims further that he leased out the ‘B’ and ‘C’
schedule property to one Mohiuddin Ahmed and the predecessor of
the defendants Abul Kasem by way of two registered lease deeds
dated 09.05.1960. Those lease deeds had been marked as Exhibits-4
and 4(a). On plain reading of those lease deeds it appears that those
were executed for eight years and although Mohiuddin Ahmed was
an attesting witness in Exhibit-4(a), Abul Kasem was not made an
attesting witness in the lease deed i.e. Exhibit-4 which creates a
suspicion on the aforesaid claim of giving lease by the plaintiff.
Referring the written statement (Exhibit-8(a) filed by
Mohiuddin Ahmed and Abul Kasem in Title Suit No.79 of 1964
instituted by one Tara Ram the plaintiff claims that said Mohiuddin
Ahmed and Abul Kasem were lessees under the plaintiff Babru Mia.
The plaintiff claims further that the predecessor of the defendants
Abul Kasem himself instituted Title Suit No.7 of 1985 in the then 4th
Court of Munsif, Dhaka against the plaintiff for declaration that the
lease deed dated 09.05.1960 was obtained by practicing fraud. But the
=18=
suit was dismissed on contest by judgment and decree dated
30.03.1985 (Exhibit-10). Thus, relying on Exhibits-8(a) and 10 the
plaintiff claims that the predecessor of the defendants Abul Kasem
was lessee under the plaintiff. It is palpable from Exhibit-10 that Title
Suit No.7 of 1985 was instituted challenging the legality of lease deed
dated 09.05.1960 and the said suit was dismissed on 30.03.1986. But
before dismissal of the said suit the lease period for eight years
expired automatically due to which the lease deed dated 09.05.1960
lost its validity much before the institution of the Title Suit No.7 of
1985. In the aforesaid backdrop, the plaintiff’s claim to the effect that
the predecessor of the defendant Abul Kasem was a lessee under the
plaintiff cannot stand at all.
Regarding the filing of written statement by the predecessor of
defendants Abul Kasem and Mohiuddin Ahmed admitting
themselves as lessees under the plaintiff in Title Suit No.79 of 1964
the defendants contend that taking the advantage of illiteracy of their
predecessor Abul Kasem the plaintiff Babru Mia managed to insert a
sentence in the written statement filed by Mohiuddin Ahmed and
Abul Kasem admitting the plaintiff as lessor. But unless the claim of
the plaintiff as to the giving lease of the suit land to the defendants is
proved with other reliable evidence the aforesaid plea in the written
statement cannot give the plaintiff a benefit of dispensing with the
proof of his title and possession in the suit land.
=19=
It divulges from the record that although the trial Court did not
find title of the plaintiff in the suit land it made a self-contradictory
observation to the effect that the plaintiff acquired title by adverse
possession in the way that the plaintiff taking over possession of the
suit land by lease deed from Hazi Md. Arif and he did not challenge
the peaceful possession of the plaintiff. In fact, it is the moot point on
which the total case hinges on. At this point, let us expatiate our
discussions on the said point.
Admittedly, the plaintiff has neither pleaded acquiring title by
adverse possession nor instituted the suit praying for declaration of
title by adverse possession and accordingly no issue was framed
regarding acquiring title by the plaintiff by way of adverse
possession. As regards the framing of issue Order XIV Rule 1 of the
Code of Civil Procedure lays down the following:
“1. (1) Issues arise when a material proposition of
fact or law is affirmed by the one party and denied
by the other.
(2) Material propositions are those propositions of
law or fact which a plaintiff must allege in order to
show a right to sue or a defendant must allege in
order to constitute his defence.
(3) Each material proposition affirmed by one party
and denied by the other shall form the subject of a
distinct issue.
(underlines supplied by us)
=20=
In view of the above provisions of law, it is transparent that
where a party claims title by adverse possession in the pleadings and
the other party denies it the Court frames an issue regarding the
adverse possession. But in the case in hand since the plaintiff did not
assert the claim of adverse possession the defendants were not
needed to deny the claim of adverse possession in the written
statement. Therefore, there was no occasion to frame an issue as
regards adverse possession.
It is worthwhile to know what the plaintiff is required to prove
in a case of adverse possession. By referring the case of Ejaz Ali
Qidwai Vs. Special Manager, Court of Wards, Balirampur Estate AIR
1935 PC 53, it has been enunciated in the case of Abdul Kader and
Others vs. A.K. Noor Mohammad and others reported in 36 DLR(AD)
(1984) 261 as follows:
“21. In Ejaz Ali Qidwai V. Special Manager, Court of
Wards, Balirampur Estate, AIR 1935 PC 53, the Judicial
Committee of the Privy Council, while referring to the
principle of law regarding adverse possession observed
that:
a person, who bases his title on adverse possession,
must show by clear and unequivocal evidence that
his possession was hostile to the real owner and
amounted to a denial of his title to the property
claimed. This onus the appellants have failed to
discharge.”
(underlines supplied by us)
=21=
It has been further observed in the case of Salma Khatun and
others vs. Zilla Parishad, Chittagong reported in 51 DLR(AD) 257 that-
“4.......................................When they are in possession
claiming raiyati settlement they cannot set up adverse
possession either..............................”
(underlines supplied by us)
It is transparent from the above that where the plaintiff claims
acquiring of title by adverse possession he must show by clear and
unequivocal evidence that his possession was hostile to the original
owner. But in the case in hand the plaintiff never ever claimed his
possession repugnant to his vendor Hazi Md. Arif rather he asserts
his title and possession by oral lease from Hazi Md. Arif.
In the given facts and circumstances, the trial Court was not
required to frame an issue on adverse possession. Accordingly, the
plaintiff is not entitled to set up a case of adverse possession in the
suit land. Having considered the averments and prayers made in the
plaint of the case vis-à-vis the issues framed during trial as well as the
evidences led by the plaintiff, the finding of trial Court on plaintiff’s
title by adverse possession is ex facie gratuitous relief.
It has been held by this Division in the case of Mahaprabhu Ram
vs. Gopal Ram Ram and others reported in 10 BLD (AD) 94 that-
“16. The appellant prayed for partition never on the basis
that he or his predecessor acquired title to the suit
property by adverse possession. Title by adverse
possession has to be specifically pleaded and proved. The
=22=
appellant’s case was one of acquisition of title by
settlement. The trial Court found that the case of
settlement has not been proved, but it conferred title on
the appellant on a gratuitous finding of adverse
possession in his favour, unwarranted by pleadings. This
gratuitous conferment of title was uncalled for in a suit
for partition where the plaintiffs claim of title is to be
looked into incidentally. If the precise title to which he
lays his claim is not supported by the evidence on record,
the Court cannot find out another source of title for the
plaintiff by way of gratuitous relief. Hence on all counts
we find that the impugned judgment does not merit any
interference.”
(underlines supplied by us)
In the case of Bangladesh Parjatan Corporation and others vs.
Mofizur Rahman and others reported in 46 DLR(AD) 46 it is held that-
“19. This principle of estoppel is stated in another form
when it is said that party litigant cannot be permitted to
assume inconsistent positions in court, to play fast and
loose, to blow hot and cold, to approbate and reprobate to
the detriment of his opponent. In the case of Ambu Nair
Vs. Kelu Nair, AIR 1933 P.C. Page 167, the principle was
quoted from Smith Vs. Baker, 8 C.P. 350 as follows:
A person cannot “at the same time blow hot and
cold. He cannot say at one time that the transaction
is valid and thereby obtain some advantage to
which he could only be entitled on the footing that
it is valid, and at another say it is void for the
purpose of securing some further advantage.”
(underlines supplied by us)
=23=
That apart since the plaintiff claims his title from his vendor
Hazi Md. Arif the plaintiff ought to implead his vendor in the present
suit in case of getting decree on the basis of adverse possession.
Although Hazi Md. Arif was a necessary party in the suit he was not
impleaded as party and it is settled law that a decree on adverse
possession cannot be passed in absence of a necessary party to the
suit. But the trial Court most illegally established the title of the
plaintiff by way of adverse possession.
It is undeniable that the High Court Division being the
appellate Court had power to grant relief to the plaintiff regarding
the adverse possession in the suit land under Order XL Rule 33 of the
Code of Civil Procedure, where the plaintiff made out a case to grant
such relief, but failed to pray for such relief in categorical terms. But
in the case in hand, the plaintiff utterly failed to make out a case for
adverse possession either in the pleadings or in the whole evidences
on record. In Hefzur Rahman (Md) vs. Shamsun Nahar Begum and
another reported in 51 DLR(AD) 172 it has been observed by this
Division in the following:
“60. The law requires that the relief must be specifically
claimed either simply or in the alternative. It is true that
general or other relief which the Court may think just
may be granted although not specifically asked for. But
the essential conditions are that, the averments in the
plaint must justify such relief and the defendant must get
an opportunity to contest such relief. In the name of
=24=
granting general or other relief the Court cannot and
would not mount any surprise on the defendant and
make him liable for something which does not arise out of
the plaint and, as such, he had no occasion to answer the
same. This is merely an extension of the principle of
natural justice.”
(underlines supplied by us)
In view of the above proposition of law, the High Court
Division rightly rejected the decree of adverse possession in favour of
the plaintiff-appellant since the plaintiff could not make out a case of
adverse possession within the four corners of plaint.
From the certified copy of the judgment of Civil Petition for
Leave to Appeal No.585 of 1995 (Exhibit-13(a)) it is evident that the
plaintiff-appellant filed SCC Suit No.02 of 1974 which was
renumbered as SCC. Suit No.1 of 1982 against the predecessor of the
defendant Abul Kasem claiming him a tenant under him by way of
lease deed dated 09.05.1960 (Exhibit-4(a)). Although the SCC Suit was
decreed the High Court Division set aside the judgment and decree
of the trial Court in Civil Revision No.424 of 1991. Against which the
appellant filed Civil Petition for Leave to Appeal No.585 of 1995
which was dismissed by this Division on 16.05.1996. This Division
found in the said judgment that the lease deed dated 09.05.1960 was
not acted upon inasmuch as admittedly there was no payment of rent
in terms of the said lease deed. The aforesaid findings of this Division
is binding upon all Courts including the trial Court as well as trial
=25=
Court according to the provisions of Article 111 of the Constitution.
But the trial Court committed error of law and facts in relying on the
lease deed dated 09.05.1960 (Exhibit-4(a)) which is violative of Article
111 of the Constitution.
On the other hand, the defendants claim that their predecessor
Abul Kashem was inducted into the possession of the suit land
through Manu Mia in the year 1952. D.Ws.1-4 categorically stated in
their testimony that Abul Kashem came into the possession of the
suit land since the year 1952.
The plaintiff by adducing the order sheet of L.A. Case No.25 of
1959-60 (Exhibit-7) claims that by order dated 23.08.1960 the
authority held that the compensation for acquisition cannot be given
without adjudication of right, title and interest of the respective
parties in the competent Court. The defendants refuted the said
argument by referring the order dated 05.12.1959 (Exhibit-C) passed
in L.A. Case No.25/59-60 from which it appears that the authority
directed the defendant No.1 Nurjahan Begum on 05.12.1959 to hand
over possession of the suit land to it by 15.12.1959. Thus, it is evident
that the predecessor of the defendants Abul Kashem and his wife
Nurjahan Begum were in possession of the suit land before 1960.
From the memos dated 27.04.1960 (Exhibits-C(1) and C(2) it is seen
that the acquiring authority asked the defendant Abul Kashem and
his wife Nurjahan Begum to provide the name of the co-sharers, if
=26=
any in the suit property. Memo dated 22.11.1960 (Exhibit-F(1)) issued
by the Dhaka WASA to Md. Abul Kashem shows that as per his
application dated 09.01.1960 the authority allowed him to take water
connection in his structure in the name and style Matin Restaurant,
Bijoynagar situated in C.S. Plot No.129. All the aforesaid
documentary evidences clearly show that the defendants’
predecessor had been in possession of the suit land long before
execution of so-called lease deed by the plaintiff on 09.05.1960.
The plaintiff except himself as P.W.1 could not examine any
neutral witness to corroborate his claim to the effect that the
defendant’s predecessor Abul Kashem was inducted into possession
of the suit land on the basis of the lease deed dated 09.05.1960. The
plaintiff also could not prove that he is in possession of the suit land
taking oral settlement from Hazi Md. Arif in the year 1953.
In the light of the foregoing discussions, we find that the
plaintiff did not acquire title and possession in the suit land and the
defendants were never lessee under the plaintiff but the trial Court
without proper appraisal of the oral as well as documentary evidence
available on the record decreed the suit and while the High Court
Division lawfully set aside the judgment and decree of the trial
Court. We do not find any deviation in the impugned judgment and
decree of the High Court Division. In view of the reasons stated
above and in the light of the above discussions, it does not warrant
=27=
interference with the impugned judgment and decree dated
22.02.2011 passed by the High Court Division in First Appeal No.92
of 2009. Therefore, we do not find any merit in the submissions of the
learned counsel for the appellants and as such the instant Civil
Appeal is liable to be dismissed.
Consequently, the instant Civil Appeal is dismissed without
any order as to costs.
C.J.
J.
J.
J.
J.
J.
The 20th day of November, 2023
RRO; Total words- 6,581
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS.111-155 OF 2021.
(From the judgment and order dated 09.05.2016 passed by the High
Court Division in Writ Petition Nos.9562-9564 of 2008, 9566-9567
of 2008, 11545 of 2015, 2110 of 2013, 6861 of 2012, 10929 of
2014, 8187 of 2015, 8930 of 2011, 11546 of 2015, 3681 -3682 of
2013, 1969 of 2009, 2682 of 2016, 6404 of 2014, 4049 of 2013,
8507 of 2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of 2014,
14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of 2013, 9733 of
2015, 9934 of 2015, 12558 of 2012, 986 -987 of 2011, 4878 of 2013,
10769 of 2014, 8697 of 2011, 5795 of 2014, 2510 of 2015, 3371 of
2015, 6177 of 2013, 1131 of 2009, 8985 of 2010, 11840 of 2015 ,
4048 of 2013, 12885 of 2015 and 1891 of 2015 respectively).
The Government of Bangladesh, represented
by the Secretary, Ministry of Finance,
Internal Resources Division, Bangladesh
Secretariat, Ramna, Dhaka and others.
: ...Appellants.
(in C.A. Nos.111-155 of 2007)
-Versus-
North South University, Dhaka. : ...Respondent.
(in C.A. Nos.111-112, 115,
117,120,146 & 153 of 2021)
International University of Business
Agriculture and Technology (IUBAT),
Uttara, Dhaka.
: ...Respondent.
(in C.A. Nos.113-114,
136,138 & 141 of 2021)
Independent University of Bangladesh,
Bashundhara, Dhaka.
: ...Respondent.
(in C.A. Nos.116 & 137 of 2021)
World University of Bangladesh,
represented by its Associate Professor
Dr. Abdul Mannan Choudhury.
: ...Respondent.
(in C.A. No.118 of 2021)
The University of Liberal Arts
Bangladesh, represented by its
Registrar Mr. Kamal Khan and another.
: ...Respondents.
(in C.A. Nos.119,121-122
& 143 of 2021)
The University of Asia Pacific,
Dhanmondi, Dhaka and another.
: ...Respondents.
(in C.A. No.123 of 2021)
World University of Bangladesh, represented by
the member Secretary of its Board of Trustee,
Associate Professor Dr. Musfiq Mannan Choudhury.
: ...Respondent.
(in C.A. Nos.124,131 &
134 of 2021) 2
The University of Liberal Arts
Bangladesh, represented by its Registrar
Mr. Md. Foyzul Islam and another.
: ...Respondents.
(in C.A. No.125 of 2021)
Eastern University, Dhanmondi, Dhaka and others. : ...Respondents.
(in C.A. Nos.126 & 135 of 2021)
North South University, Dhaka and another. : ...Respondent.
(in C.A. Nos.127 & 142 of 2021)
The University of Asia Pacific, represented by
its Registrar, Dhanmondi, Dhaka.
: ...Respondent.
(in C.A. Nos.128,133,139-
140,147 & 149 of 2021)
International University of Business
and Agriculture and Technology (IUBAT),
Uttara, Dhaka and another.
: ...Respondents.
(in C.A. Noa.129-130 &
144 of 2021)
Eastern University, Dhanmondi, Dhaka. : ...Respondent.
(in C.A. No.132 of 2021)
Daffodil International University,
represented by its Registrar and others.
: ...Respondents.
(in C.A. No.145 of 2021)
Asian University of Bangladesh, represented
by its Vice-Chancellor, Uttara, Dhaka.
: ...Respondent.
(in C.A. No.148 of 2021)
Ahsanullah University of Science and
Technology, Dhaka and another.
: ...Respondents.
(in C.A. No.150 of 2021)
Southeast University, represented by
its Vice-Chancellor, Banani, Dhaka.
: ...Respondent.
(in C.A. No.151 of 2021)
Eastern University, Dhanmondi, Dhaka and others. : ...Respondents.
(in C.A. No.152 of 2021)
The University of Liberal Arts Bangladesh,
represented by its Registrar Mr. Md. Foyzul Islam.
: ...Respondent.
(in C.A. No.154 of 2021)
Southern University Bangladesh,
represented by its Treasurer and others.
: ...Respondents.
(in C.A. No.155 of 2021)
For the Appellants.
(In C.A. Nos.111-155 of 2021)
: Mr. A.M. Amin Uddin , Attorney
General with Mr. Samarendra Nath
Biswas, Deputy Attorney General,
Ms. Mahfuza Begum, Deputy Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General and Ms.
Farzana Rahman Shampa, Assistant
Attorney General instructed by Mr.
Haridas Paul, Advocate-on-Record.
For the Respondents.
(In C.A. Nos.111 -112, 115, 117,
120, 127, 142, 146 & 153 of 2021)
: Mr. A.F. Hassan Ariff, Senior
Advocate with Mr. Fida M. Kamal ,
Senior Advocate and Mr. Muhammad
Sakhawat Hossain , Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record. 3
For the Respondents.
(In C.A. Nos.113 -114, 129 -130,
136, 138, 141 & 150 of 2021)
: Mr. Muhammad Sakhawat Hossain,
Advocate instructed by Mr. Md.
Taufique Hossain, Advocate-on-Record.
For the Respondent.
(In C.A. No.144 of 2021)
: Mr. Md. Taufique Hossain, Advocate-on-Record.
For the Respondents.
(In C.A. Nos.118-119, 121-122, 124-
125, 131 ,134, 143 & 154 of 2021)
: Mr. Omar Sadat, Advocate instructed
by Ms. Madhumalati Chowdhury Barua,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos. 123, 128, 133,
139-140 & 149 of 2021)
: Mr. Probir Neogi, Senior Advocate
with Mr. Md. Abdur Razzak, Advocate
instructed by M r. Zainul Abedin ,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos.116 & 137 of 2021)
: Mr. Rokanuddin Mahmud, Senior Advocate
with Mr. Mustafizur Rahma n Khan, Senior
Advocate and Mr. Abul Kalam Azad ,
Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For the Respondents.
(In C.A. Nos. 126, 132, 135,
147-148 & 152 of 2021)
: Not represented.
For the Respondent.
(In C.A. No.151 of 2021)
: Mr. A.F. Hassan Ariff, Senior Advocate
with Mr. Munshi Moniruzzaman, Advocate
and Mr. Md. Ashik -Al-Jalil, Advocate
instructed by Ms. Mahmuda Begum,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos.145 & 155 of 2021)
: Mr. Mohammed Mutahar Hossain, Advocate
instructed by Mr. Nurul Islam Bhuiyan,
Advocate-on-Record (Dead).
Date of Hearing. : The 25th & 27th February, 2024.
Date of Judgment. : The 27th February, 2024.
J U D G M E N T
Borhanuddin,J: These civil appeals by leave are directed
against a common judgment and order dated 05.09.2016
passed by the High Court Division in Writ Petition
Nos.9562-9564 of 2008, of 2008, 9566 -9567 of 2008, 11545
of 2015, 2110 of 2013, 6861 of 2012, 10929 of 2014, 8187 4
of 2015, 8930 of 2011, 11 546 of 2015, 3681-3682 of 2013,
1969 of 2009, 2682 of 2016, 6404 of 2014, 4049 of 2013,
8507 of 2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of
2014, 14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of
2013, 9733 of 2015, 9934 of 2015, 12558 of 2012, 986 -987
of 2011, 4878 of 2013, 10769 of 2014, 8697 of 2011, 5795
of 2014, 2510 of 2015, 3371 of 2015, 6177 of 2013, 1131
of 2009, 8985 of 2010, 11840 of 2015, 4048 of 2013, 12885
of 2015 and 1891 of 2015 making all the Rules absolute
with direction.
Since all the appeals originated from a common
judgment and order passed in aforesaid writ petitions
involving identical point of law based on similar facts
as such all the civil appeals have been taken together
for hearing and disposed of by this single judgment.
Facts relevant for disposal of the appeals are that
the Rules in the afore mentioned writ petitions were
basically issued in two fold terms, namely, calling upon
the writ respondents including the Government of
Bangladesh to show cause as to why the SRO No. 156-
Ain/Aikor/2007 dated 28.06.2007 and SRO No.158 -5
Ain/Aikor/2007 dated 28.06.2007 issued by the Government
under Section 44(4)(b) of the Income Tax Ordinance, 1984
(hereafter referred to as ‘the Ordinance, 1984’)
withdrawing the tax exemptions infavour of the writ
petitioner universities/educational institutions and
thereby imposing 15 % tax on their income relating to
assessment years 2008-2009 to 2010-2011 and as to why the
SRO No.268-Ain/Aikor/2010 dated 01.07.2010 issued by the
Government under the sam e provisions purportedly re -
fixing the tax pay able by said writ -petitioners @15% in
respect of a ssessment year 2011 -2012 and on wards should
not be declared to be without lawful authority and are of
no legal effect and as to why the respective assessment
orders followed by demand notices as well as notices
demanding advance taxes from them pursuant to the said
SROs, should also not be declared to be without lawful
authority.
It is commonly stated by the writ petitioners that,
since inception they have been enjoying exemption from
paying income tax on the surplus income generated by them
by virtue of an SRO being SRO No.454-L/80 dated 31 st 6
December, 1980 issued by the Government ( Ministry of
Finance) under Section 60(1) of the then Income Tax Act,
1922 which, vide its Clause-(a)(3), exempted the
universities and other non -profitable educational
institutions from payment of income tax. That during
their such enjoyment of exemption, the Government issued
another SRO, being SR O No.178-Income Tax/2002 dated 3 rd
July, 2002, under Section 44(4)(b) of the Ordinance, 1984
substituting the above Clause -(a)(3) that such exemption
would continue only in respect of universities who were
not operated commercially.
It is further stated that, sai d SRO No.178 dated 3rd
July, 2002 did not make any material d ifference from the
earlier SRO No.454-L/80 dated 31st December, 1980 so far
exemption from payment of income tax by the writ-
petitioners were concerned. The earlier SR O was
applicable to non-profitable universities and other
educational institutions and the latter became applicable
to the universities and educational institutions which
were operated on non -commercial basis and as such the
intention and object of both the SROs were same. Thus, it 7
is stated that the writ petitioners remained entitled to
get exemption from payment of income tax under the said
SRO dated 3rd July, 2002 as the writ petitioners could not
in any case run their universities on commercial basis as
per their own charters.
It is further stated that, the writ petitioners being
non-profitable institutions do not operate commercially
and the whole income of the writ petitioners are applied
for imparting education as p er the obje cts of their
Society/Charter/Foundation/Trust. No part of the income
of the writ petitioners are consumed/utilized by the
members of the said Foundation/Society/Trust/ Non
Commercial University. But the same are utilized solely
for the purpose of education and diffusion of knowledge
which is absolutely non-commercial in nature.
However, it is stated that by the two impugned SROs
being, SRO No.156-Ain/Aikor/2007 dated 28.06.2007 and SRO
No.158-Ain/Aikor/2007 dated 28.06.2007, the then Non -
Party Caretaker Government promulgated/issued new
provisions regarding tax on the surplus income of the
writ-petitioner universities purportedly under Section 8
44(4)(b) of the Ordinance, 1984 and thereby cancelled the
exemption of taxes which they were entitl ed to by the
earlier SRO No.454-L/80 dated 31st December, 1980 and SRO
No.178 dated 3rd July, 2002.
It is also stated that, vide impugned SRO No.158
dated 28.06.2007, Non -Party Caretaker Government (t he
Ministry of Finance) for the first time made division
between public universities and private universities with
an additio nal proviso and thereby imposed/ re-fixed 15 %
tax on private universities. Finally, it is stated, the
Government (the Minis try of Fi nance) vide impugned SRO
No.268 dated 01.07.2010 introduced a new provision under
Section 44(4)(b) of the Ordinance, 1984 which vi rtually
imposed wholesale tax @15% on private universities
irrespective of its nature whether it is r un non-
commercial basis or imparting education on medical
science or engineering or imparting education in other
fields including information technology.
Common grievance of the writ petitioner universities
are that, pursuan t to the aforesaid impugned SR Os, the
tax exemptions as enjoyed by them have been withdrawn 9
without lawful authority, taxes have been collected from
them illegally and they have been illegally asked to pay
advance taxes and/or arrear taxes vide different impugned
memos issued by the concer ned tax authorities . Being
aggrieved by the sa id impugned SROs as well as the
impugned actions of the respondents pursuant to the said
SROs, the writ petitioners moved before the High Court
Division and obtained the aforesaid Rules. At the time of
issuance of the Rules, th e High Court Division vide
different ad-interim orders, either stayed operation of
the impugned SROs or stayed such demand of tax es issued
by the writ -respondents on the writ -petitioners or
proceedings that followed.
Rules have been oppos ed by the writ -respondents by
filing separate affidavit-in-opposition since the case of
the writ -respondents are common in all the writ
petitions.
After hearing learned Advocates for the respective
parties, the High Court Division made all the Rules
absolute with direction vide impugned judgment and order
dated 09.05.2016 declaring the impugned SROs withdrawing 10
the tax exemptions and thereby imposing 15% tax in
whatever names as ultra-vires to the Constitution and the
Ordinance, 1984 and those were declared to have been
issued without lawful authority and were of no legal
effect. The High Court Division also directed the writ -
respondents to refund the realized taxes pursuant to the
impugned SROs.
Having aggrieved by and dissatisfied with the
impugned judgment and order passed by the High Court
Division, the Government and others as petitioners have
preferred 44 separate civil petitions for leave to a ppeal
invoking Article 103 of the Constitution and obtained
leave granting order on 09.02.2021.
Consequently, these civil appeals arose.
Mr. A.M. Amin Uddin , learned Attorney General
appearing for the appellants in all the appeals submits
that the provision of Section 44(4)(b) of the Ordinance,
1984 has empowered the Government to make exemption,
reduction in rate or other modification in respect of tax
infavour of any class of income or in regard to the whole 11
or any part of the income or any class of persons and
impugned SROs having been issued by the Government
pursuant to the above provision of law, but said legal
provision has not been challenged by the writ -petitioner-
respondents and as such without declaring said provision
of law as ultra-vires to the Constitution, the High Court
Division erred in law in declaring the impugned SROs as
illegal. He next submits that pursuant to Section 21 of
the General Clauses Act, 1897 the exemption can never be
treated as right rather the same is a privilege which can
be recalled/withdrawn/rescind and the Government having
issued the SRO withdrawing the privilege of the exemption
of tax and the said exercise is within the authority of
the Government, the High Court Division erred in law in
declaring the same as ultra-vires to the Constitution. He
further submits that High Court Division failed to
consider that the Non -Party Caretaker Government during
their period declared national budget for collection of
revenue which was subsequently ratified and the impugned
SROs were issued for the interest of the state revenue
and the said function of the then Caretaker Government 12
was a necessity for smooth functioning of the Government
which was given legal coverage by converting into an Act
in the year, 2009 but the High C ourt Division without
appreciating this legal aspects erroneously declared
impugned SROs as illegal . He again submits that the High
Court Division while deciding the issue regarding
Public/Private discrimination has failed to consider that
public universit ies are established under their own
statutes and on the other hand the private universities
established under the provision of ‡emiKvwi wek^we`¨vjq AvBb, 1992 or
‡emiKvwi wek^we`¨vjq AvBb, 2010 and by the said enactment it appears
that the private universi ties have itself formed a
separate group which can be intelligibly differentiate
from the public universities and thus the question of
discrimination between public and private universities
does not arise at all and as such the High Court Division
erred in law in passing the impugned judgment and order.
He also submits that High Court Division while deciding
the issue relating to Fundamental Principles of State
Policy has failed to consider that the Fundamental
Principles of State Policy is not judicially e nforceable 13
and as such the High Court Division erred in law in
making the Rules absolute holding that Fundamental
Principles of State Policy as enunciated under Articles
15 and 17 as well as the Fundamental Right to life as
enshrined under Article 32 of th e Constitution has
infringed/violated by the impugned SROs. He lastly
submits that the High Court Division failed to consider
that income tax being a direct tax, has no bearing upon
the students rather it will be collected from the
universities from their income, if any, after expenditure
without affecting any students as such the impugned
judgment and order is liable to be set-aside.
On the other hand, learned Advocate s appearing for
the respondents in separate civil appeals made their
submissions in the same line. Summary of their
submissions are that the High Court Division upon proper
appreciation of the provisions of Constitution, the
Ordinance, 1984 and other relevant laws rightly made all
the Rules absolute with direction. They submits that the
writ-petitioner private universities are charitable and
philanthropic educational institution and those were 14
established or created for the purpose of imparting
education, a fundamental right guaranteed under
Constitution, and there was no motive to earn profit and
as such those educational institutions are not liable to
pay income tax. They again submits that Section 44(4)(b)
of the Or dinance, 1984 did not authori ze the Government
to impose taxes by a sub -ordinate legislation and only
the Parliament can impose taxes by a law framed under
Article 83 of the Constitution and thereby the Government
committed gross illegality in imposing 15% taxes upon the
private univers ities. They further submits that though
the public universities received Government grants to run
universities and are exempted to pay any taxes but the
private universities which were established and created
for charitable and philanthropic purpose only to impart
education and no Government grant was given to them ,
inspite of that they were directed to pay 15% taxes which
is illegal as well as discriminatory. They also submits
that as per provisions of Private Universities Ac t, 1992
and/or 2010, the trust deed as well as other instruments
by which the universities a re established, there was no 15
profit motive and the trustees or university authorities
have no income from the universities , the income of the
writ-petitioner universities cannot be term ed as income
from university or profession within the meaning of the
Ordinance, 1984. Thus , the High Court Division rightly
made those Rules absolute with direction, which do not
require any interference by this Division.
Heard the learned Attorney General for the appellants
and the learned Advocates for the respective respondents
and perused the impugned judgment and order passed by the
High C ourt Division alongwith relevant papers/documents
contained in the respective paper books.
From the materials on record it appears that t he
writ-petitioners in question are private universities
established in different years under Societies
Registration Act, 1860 /Section 28 of the Companies Act,
1994/The Trust Act, 1882 etc. The common characteristics
of these Privat e Universities are that they were formed
under the Private University Act, 1992, claimed
themselves as non -profit charitable or philanthropic
organizations, as Universities they mainly receive 16
different types of fees and charges from the students and
meet expenses for contributing educational services
towards the students.
In the context of above, it is necessary to examine
whether these private universities are taxable entities
or are required to pay tax under the Ordinance, 1984
(Recently repealed by the Income Tax Act, 2023).
The Ordinance, 1984 is meant for the taxation of
income. Where there is income there must be imposition of
tax under the said Ordinance unless the income or incomes
are explicitly exempted under the lawful arrangement .
Therefore, first question is what constitutes ‘income’
under the Ordinance, 1984 . The word ‘income’ is defined
under Section 2(34) of the Ordinance , 1984 . It
essentially not an exhaustive definition rather an
inclusive one having an elastic ambit . Various Judicial
pronouncements have tried to define ‘income’. In the case
of CIT vs. Shaw Wallace & Co., the Privy Council held:
“Income in this Act connotes a periodical
monetary return ‘coming in’ with some sort
of regularity, or expected regularity, f rom
definite sources.” 17
However, subsequent amendments in the Ordinance, 1984
made some changes. An isolation adventure may also be
treated as business, for example, business income might
have been deemed under Section 19(20) of the Ordinance,
1984 from the disposal of asset representing expenditure
of a capital nature on scientific research . Even a
windfall gain or a non -recurring receipt like winnings
from lotteries may be treated as ‘income’ under Section
19(13). In view of the above discussion s, it can be said
that the Private Universities receive fee s and charges
from the student s which are nothing but monetary return
coming in as revenue receipt and, in the accounts, they
are exhibited in a periodical manner . Therefore, the
private universities received ‘income’ in their hands.
Now it can be looked into whether the Private
Universities are doing business . Activities relating to
trade or manufacture may be signify as business. However,
the word ‘business’ conveys wider meaning. In the case of
Barendra Prasad Ray and others vs. Income Tax Officer ‘A’
Word Foreign, reported in (SC) 1981, 129 ITR 295, it was
expressed by the Indian Supreme Court that: 18
“Business is one of wide import and it means
an activity carried on continuously and
systematically by a p erson by the
application of his labour or skill with a
view to earning an income.”
In the case of Unni Krishnan, J.P. and others vs.
State of Andhra Pradesh and others , reported in AIR 1993
SC 2178, t o answer the question ‘whether there is a
fundamental right to establish an educational
institution’, the Supreme Court of India discussed
meaning to be attributed to the words “profession”,
“occupation”, “trade”, or “business” a s mentioned in
Article 19(1)(g) of the Constitution of India . A fter
referring meaning of “occupation” in P. Ramanatha Aiyar’s
Law Lexicon , Reprint Edition 1987 , and Black’s Law
Dictionary, Fifth Edition , the Court cited the
observation made in P.V.G. Raju vs. Commissioner of
Expenditure, reported in 86 ITR 267, which is as follows:
“The activity termed as “Occupation”, if of
wider import than vocation or profession. It
is also distinct from a hobby which can be
resorted to only in leisure hours for the
purpose of killing time. Occupation,
therefore, is that with which a person
occupies himself either temporarily or
permanently or for a considerable period 19
with continuity of activity. It is analogous
to a business, calling or pursuit . A person
may have more than one occupation in a
previous year. The Occupations may be
seasonal or for the whole year.
Firstly, there can be a business,
profession, vocation or occupation without
any profit motive or on “no profit on loss
basis”. To, illustrate, co -operative
societies or mutual insurance companies may
carry on business without earning any income
or without any profit motive. The vocation
or occupation to do social service of
various kinds for the uplift of the people
would also come under this category. The
profit motive or earning of income is not an
essential ingredient to constitute the
activity, termed as business, profession,
vocation or occupation.”
(emphasis supplied by us)
In the cited case the meaning of “business” also
discussed.
In the case of Bangalore Water Supply and Sewerage
Board vs. R. Rajappa , reported in AIR 1978 SC 548 ,
Krishna Iyer, J. observed:
“To Christian education as a mission, even
if true, is not to negate is being an
Industry, we have to look at education
activity from the angle of the Act and so
viewed the ingredients of education are 20
fulfilled. Education is, therefore, an
industry nothing can stand in the way of
that Conclusion.”
In the case of Unni Krishnan, J.P. and others vs.
State of Andhra Pradesh and others , reported in AIR 1993
SC 2178, Justice B.P. Jeevan Reddy observed:
“In the above circumstances, it is ideal to
contend that imparting of education is a
business like any other business or that it
is an activity akin to another activity like
building of roads, bridges etc.”
However, learned Justice B.P. Jeevan Reddy also
observed:
“We must make it clear that we have not gone
into the precise meaning and content of the
expressions profession, occupation, trade or
business for the reason that it is not
necessary for us to do so in view of the
approach we are adopting hereinafter, which
would be evide nt from succeeding paragraphs.
Our main concern in the entire preceding
discussion is only to wish that the activity
of establishing and/or running an educational
institution cannot be of commerce.”
The learned Justice B.P. Jeevan Reddy also makes it
clear that:
“Commercialization of education is not
permissible.” 21
The Private Universities, in question applied their
skill and labour in rendering services for which they
earn income.
It may be mentioned here that the Private
Universities claimed that they bei ng non -profit
charitable or philanthropic organization do not have any
profit motive. But it is well settled that profit motive
is not essential to constitute business income . In the
case of Krishna Menon vs. CIT, reported in [1959] 35 ITR
48, 52-3 (S.C. of India) it has been expressed by the
Supreme Court of India that ‘making profit or that
desire’ or wish to make a profit is not essential in the
case of carrying on a trade or business . The motive of
making profit or the act ual earning of profit is not
essential ingredient of business, for example, mutual
concerns and societies do carry on business although they
may not make and may not want to make any profit.
In view of the above , it can be said that Private
Universities earn income and the income falls under the
head of Business income. In line with the above decision
it can also be logically concluded that Private 22
Universities, being non -profitable organizations, might
not have any motive to earn income ; h owever, they are
doing business.
As mentioned earlier , Private Universities are
originated and established under certain Law or Laws.
They can be identified as body corporate within the
meaning of section 2(20)(a) of the Ordinance, 1984.
It is not disputed that a private university is a
juristic person and on that capacity each of the Private
Universities preferred the writ petition. Therefore, a
private university being a body corporate established or
constituted by or under law or laws can be identified as
a company for i ncome tax purpose. And, accordingly, any
income earns by a private university is chargeable to tax
under Section 16 of the Ordinance , 1984. In other words,
a private university is a company -assessee, total income
of which is assessable by applying laws . As regards tax
liability the tax rate or rates as fixed through the
Finance Act or Ordinance are applied on the total income
in order to determine the tax liability or refund . Total
income under Section 2(65) of the Ordinance, 1984 is 23
defined as the total amount of income referred to in
Section 17 and computed in the manner laid down in the
Ordinance, 1984. It may also be noted that when it comes
to income from business or profession there has to
consider some allowable deduction in accordance with the
law in order to get the amount of total income and then
rate or rates of taxes are applied in order to calculate
the payable or refundable amount of tax, if any . Here,
tax rate of a company as fixed in the Finance Act or
Ordinance is to be applied given the fact that a private
university is a company -assessee as discussed above and
liable to pay tax on the basis of its total income mainly
under the head of business income.
Admittedly, Government promulgated SR O No.454 -L/80
dated 31.12.1980 . Relevant portion of the SR O is
reproduced below:
4324 THE BANGLADESH GAZETTE, EXTRA, DECEMBER 31, 1980
MINISTRY OF FINANCE
Internal Resources Division
NATIONAL BOARD OF REVENUE
NOTIFICATIONS
Dacca, the 31st December, 1980 24
No.SRO 454-L/80.-In exercise of the
powers conferred by sub -section (1) of
Section 60 of the Income -tax Act, 1922 (XI
of 1922), and in supersession of the
Ministry of Finance Notification No. SRO
1041(K)/61, dated the 31st October, 1961, the
Government is pleased to direct that-
(a) the following classes of income shall
be exempt from the tax payable under
the said Act and they shall not be
taken into account in determining the
total income of an assessee for the
purposes of the said Act:-
---------------------------------------
(3) the income of a University or other
educational institution existing
solely for educational purposes and
not for purposes of profit.
It appears from the SRO No. 454-L/80 dated 31.12.1980
that the Government, in exercise of the power under
Section 60(1) of the then Income Tax Act, 1922, exempted
tax liability of universities and other educational
institution, irrespective of private or public, which
were existing solely for educational purposes and not for
profit. Thereafter, an amendment has been made in this
regard through ano ther Notification being SRO No. 178-
Aikor/2002 dated 03.07.2002 in the following manner:
25
‡iwR÷vW© bs wW G-1
evsjv‡`k †M‡RU
AwZwi³ msL¨v
KZ…©cÿ KZ…©K cÖKvwkZ
e„n¯úwZevi, RyjvB 4, 2002
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
(AvqKi)
cÖÁvcb
ZvwiL: 19‡k Avlvp, 1409 e½vã/3iv RyjvB, 2002 wLªóvã
Gm. Avi. I bs 17 8-AvqKi/2002- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) ‡Z cÖ`Ë
ÿgZve‡j miKvi AÎ wefv‡Mi 31‡k wW‡m¤^i , 1980 Bs Zvwi‡Li cÖÁvcb Gm.
Avi. I bs -454-L/80 G wb¤œiƒc ms‡kvab Kwij, h_v:-
Dcwi-D³ cÖÁvc‡bi Clause (a) Gi Sub-Clause (3)
cwie‡Z© wb¤œiƒc Sub-Clause (3) cÖwZ¯’vwcZ nB‡e, h_v:-
“(3) the income of a ny university, or
any other educational institution,
which is not operated commercially and
also medical college, dental college,
engineering college and institution
imparting education on information
technology.”
ivóªcÖwZi Av‡`kµ‡g
(‡gvt ‡`‡jvqvi †nv‡mb)
AwZwi³ mwPe (c`vwaKvie‡j)
The writ petitioners, however, did not express their
grievance in response to the said amendment through SRO
dated 03.07.2002 as their interest was not affected by
the said SRO.
26
Subsequently, the Government by the impugned SRO
No.156-Ain/Aikor/2007 dated 28.06.2007 withdrew t he
exemption by omitting, inter alia, the Sub-Clause (3) of
Clause (a) of the SRO No.454-L/80 dated 31.12.1980, which
is quoted below:
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
RvZxq ivR¯^ †evW©
(AvqKi)
cÖÁvcb
ZvwiL: 14 Avlvp, 1414 e½vã/28 Ryb, 2007 wLªóvã
Gm.Avi.I bs -156-AvBb/AvqKi/2007|- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) G cÖ`Ë
ÿgZve‡j miKvi GB wefv‡Mi SRO No.454-L/80 dated 31st
December, 1980 G wb¤œiƒc ms‡kvab Kwij, h_v:
Clause (a) Gi Sub-Clause (2) I Sub-
Clause (3) wejyß nB‡e|
2| Bnv 1jv RyjvB 2007 Bs nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
¯^vÿwiZ/-
(Avjx Avng`)
AwZwi³ mwPe (c`vwaKvie‡j)
On the same date, the Government issued another SRO
bearing No.158-Ain/Aikor/2007 by fixing the tax rate at
15% for the private universities , in the following
manners:
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq 27
Af¨šÍixY m¤ú` wefvM
RvZxq ivR¯^ †evW©
(AvqKi)
cÖÁvcb
ZvwiL: 14 Avlvp, 1414 e½vã/28 Ryb, 2007 wLªóvã
Gm. Avi. I bs -158-AvBb/AvqKi/2007- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) G cÖ`Ë
ÿgZve‡j miKvi wek^we`¨vjq gÄyix Kwgkb KZ…©K Aby‡gvw`Z cÖvB‡fU wek^we`¨vjq
Ges Acivci wek^we`¨vjq, hvnviv cvewjK wek^we`¨vjq bq, Zvnv‡`i D™¢zZ Av‡qi
Dci 15% nv‡i AvqKi cybt wbav©iY Kwij|
2| ‡gwWK¨vj, †W›Uvj, BwÄwbqvwis I Z_¨ cÖhyw³ wkÿv`v‡b wb‡qvwRZ cÖvB‡fU
K‡jR ev wek^we`¨vjqmg~‡ni Avq Kigy³ nB‡e wKš‘ H mKj cÖwZôv‡bi †ÿ‡Î
cÖwZeQi h_vixwZ wbixwÿZ wnmve weeiYxm‡gZ AvqKi weeiYx `vwLj Kwi‡Z nB‡e|
3| cvewjK wek^we`¨vjqmg~‡ni Avq Kigy³ nB‡e|
4| Bnv 1jv RyjvB 2007 Bs nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
¯^vÿwiZ/-
(Avjx Avng`)
AwZwi³ mwPe (c`vwaKvie‡j)
In th e SRO No.158 dated 2 8.06.2007, the public
universities were kept out of the ambit of taxation and
some other private educational institutions such as
Medical, Dental, Engineering and IT colleges and
universities were given tax exemption under certain
conditions. Thereafter, the Government issued SRO No.268-
Ain/Aikor/2010 dated 01.07.2010 replacing the immediately
preceding SRO No. 158-Ain/Aikor/2007 dated 28.06.2007 and
re-fixing a reduced tax rate to be at 15% for all private 28
universities including Medical, Dental, Engineering and
IT colleges. The contents of said SRO is as under:
‡iwR÷vW© bs wW G-1
evsjv‡`k †M‡RU
AwZwi³ msL¨v
KZ…©cÿ KZ…©K cÖKvwkZ
e„n¯úwZevi, RyjvB 1, 2010
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
(AvqKi)
cÖÁvcb
ZvwiL: 17 Avlvp, 1417 e½vã/1 RyjvB, 2010 wLªóvã
Gm. Avi. I bs -268-AvBb/AvqKi/2010|- Income Tax
Ordinance, 1984 ( Ord. No.XXXVI of 1984) Gi
Section 44 Gi Sub-Section (4) Gi Clause (b)
‡Z cÖ`Ë ÿgZve‡j miKvi, 14 Avlvp 1414 e½vã/28 Ryb, 20 07 wLªóvã Zvwi‡Li
cÖÁvcb bs-Gm.Avi.I bs -158-AvBb/AvqKi/2007 GZ`&Øviv iwnZµ‡g, cvewjK
wek^we`¨vjq e¨ZxZ †emiKvwi wek^we`¨vjq, †emiKvwi †gwWK¨vj K‡jR, †emiKvwi
†W›Uvj K‡jR, †emiKvwi BwÄwbqvwis K‡jR ev †KejgvÎ Z_¨ cÖhyw³ wel‡q
wkÿv`v‡b wb‡qvwRZ †emiKvwi K‡jR Gi D™¢zZ Av‡qi Dci cÖ‡`q AvqK‡ii nvi
n«vm Kwiqv 15% wbav©iY Kwij|
2| Bnv 1jv RyjvB 2010 ZvwiL nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
(Avwgbyi ingvb)
AwZwi³ mwPe (c`vwaKvie‡j)
The aforementioned SROs of 2007 and 2010 were
challenged by the writ-petitioners in the form of writ
petitions.
In passing the impugned judgment and order, the High
Court Divisions observed that by virtue of the provisions
29
of Article 58D of the then Chapter 11A of Part IV of the
Constitution, the Caretaker Government was only
authorized to do routine works and then arrived at a
finding that imposition of tax on private universities
and creation of classification between private and public
universities in respect of tax is a policy issue even
though the High Court Division agreed on the submission
of the learned D eputy Attorney General (DAG) that the
Caretaker Government promulgated two budgets and it
became necessary on the part of the Government to do some
taxation work.
The issue of taxation work needs a careful
examination in light of the budgetary exercise of the
Government. Every year the Government is required to
promulgate annual budget with some estimate of income and
expenditure. To run a Government, it is necessary to meet
day to day expenditure and fulfil other obligation to
make payments such as loan repayment and interest payment
to domestic and international organizations. Besides, the
Government irrespective of its characteristics is
responsible for various development activities in the 30
country. Therefore, budget estimates in respect of
expenditure must with the est imate of earnings where the
major source of earnings is taxation . That is why
Government’s budgetary exercise always produces taxation
law in the form of Finance Act or Ordinance and other
ancillary legal instruments like SRO, rules or
notification. As a result, SROs in relation to taxation
cannot be seen in isolation of budgetary exercise . Under
the budgetary exercise , it is necessity for the
Government to make payments and to earn revenue . In the
absence of earnings , the payments are not possible . But
smooth earnings depend on a well -planned revenue earning
arrangements. As a result, imposition or even reduction
of tax under the lawful authority is a necessity , not an
ordinary policy issue . It is to be noted here that
because of the necessity the bu dgets promulgated by the
Caretaker Government under the coverage of Appropriation
Ordinance and Finance Ordinance for the two years being
2007 and 2008 were converted into Act, in the year of
2009. The relevant portions of the A_© (2007 -2008 A_© ermi) AvBb ,
2009 Ges A_© (2008-2009 A_© ermi) AvBb, 2009 are reproduced below: 31
“aviv-1| (1) GB AvBb A_© (2007 -2008 A_© ermi) AvBb, 2009 bv‡g
AwfwnZ nB‡e|
(2) GB AvBb 17 Avlvp, 1414 e½vã †gvZv‡eK 1 RyjvB, 2007 wLªóvã ZvwiL
nB‡Z Kvh©Ki nBqv‡Q ewjqv MY¨ nB‡e|
--------------------------------------------------------------------------------
------------------------------------------------------------------------------
aviv-71| A_© Aa¨v‡`k, 2007 (2007 m‡bi 10bs Aa¨v‡`k) iwnZKiY GZ`&Øviv
iwnZ Kiv nBj|
-AND-
aviv-1| (1) GB AvBb A_© (2008 -2009 A_© ermi) AvBb, 2009 bv‡g AwfwnZ
nB‡e|
(2) GB AvBb 17 Avlvp, 1415 e½vã †gvZv‡eK 1 RyjvB, 2008 wLªóvã ZvwiL
nB‡Z Kvh©Ki nBqv‡Q ewjqv MY¨ nB‡e|
--------------------------------------------------------------------------------
------------------------------------------------------------------------------
aviv-48| A_© Aa¨v‡`k, 2008 (2008 m‡bi 33bs Aa¨v‡`k) iwnZKiY GZ`&Øviv
iwnZ Kiv nBj|”
It may be mentioned here that when an Appropriation
Ordinance is converted into an Act, the a ctions taken
under the Ordinance are also given legal coverage. In
this regard relevant provisions from wbw`©óKiY (2007 -2008 A_© ermi)
AvBb, 2009 (2009 m‡bi 2bs AvBb) is reproduced hereunder:
“4| (1) mshy³ Znwej (AwMÖg gÄyix `vb I wbw`©óKiY) Aa¨v‡`k, 2007 (2007
m‡bi 12 bs Aa¨v‡`k) GZ`&Øviv iwnZ Kiv nBj|
(2) Abyiƒc iwnZKiY m‡Ë¡I D³ Aa¨v‡`‡ki Aax‡b K…Z ev M„nxZ e¨e¯’vw` GB
AvB‡bi Aax‡b K…Z ev M„nxZ nBqv‡Q ewjqv MY¨ nB‡e|”
A Government budget is estimates of earning and
spending for a particular period of time referred to as a
financial or fiscal year. In other words, it is a
projection of the revenue and expenditure of the 32
Government within a fiscal year. For smooth functioning
of the Government and for implementing its economic
policies, budget plays a vi tal role. Constitutional
provision under Chapter II of the Constitution regulates
the budgetary process of the Government. The budget is
presented to the Parliament and once the budget is
approved, the Government can use the funds and impose the
tax to mak e the revenue inflow of the fund nonstop.
Accordingly, we find two pieces of legislation —one in
relation to spending and the other chiefly in connection
to taxation. There is, however, another piece of
legislation which is connected to the revised budget. As
regards spending the legislation is termed as
‘Appropriation Act’ or ‘ wbw`©óKiY AvBb ’, while the other
relating to Government revenue or tax is called ‘The
Finance Act’ or ‘ A_© AvBb ’. Through the Appropriation Act,
the Parliament empowers the Government to spend from the
consolidated fund while The Finance Act which gives the
Government right to impose tax plays an important role to
make the fund uninterrupted. Therefore, both the
legislations are integral parts of the whole budgetary 33
process. In other w ords, they are the two opposite sides
of the same coin of budgetary process.
As the Parliament was not in session in the year of
2007, the then Caretaker Government in connection to the
budget passed two Ordinances one being mshy³ Znwej (AwMÖg gÄyix `vb I
wbw`©óKiY) Aa¨v‡`k, 2007 (2007 mv‡ji 12bs Aa¨v‡`k) and the other being A_©
Aa¨v‡`k, 2007 (2007 mv‡ji 10bs Aa¨v‡`k) . Subsequently, the Parliament
converted the said two Ordinances as Acts. Accordingly,
the mshy³ Znwej (AwMÖg gÄyix `vb I wbw`©óKiY) Aa¨v‡`k, 2007 has been converted
as wbw`©óKiY (2007-2008 A_© eQi) AvBb, 2009 (2009 mv‡ji 9bs AvBb). As a result,
all the Constitutional defects, if any, in course of
budgetary process of the then Caretaker Government has
been entirely removed by the 9th Parliament. Thus, the
SROs which were issued on 28.06.2007 by the Government
under Section 44(4) (b) of the Ordinance, 1984 to collect
the revenue from the income of private universities
cannot be called into question.
In view of the above discussions, it can be said that
the classification of public and private universities in
respect of taxation is closely connected to the necessary 34
revenue earnings under the budgetary exercise, that such
classification is not a n ordinary policy issue, that the
Government issued the impugned SROs in exercise of the
power given under Section 44(4)(b) of the Ordinance,
1984, and that the Parliament subsequently accepted all
budgetary work by converting the related Ordinances into
Acts. Therefore, the impugned SRO s being No.156-Ain/
Aikor/2007 dated 28.06.2007 and No.158 -Ain/Aikor/2007
dated 28.06.2007 cannot be said to have been issued
unlawfully on the ground that they have been issued by
the Caretaker Government.
Pursuant to Section 44(4)(b) of the Ordinance, 1984,
the Government is empowered to make any exemption,
reduction in rate or other modification in respect of tax
infavour of any class of income or in regard to the whole
or any part of the income of any class of persons and the
impugned SRO s having been issued/p romulgated by the
Government pursuant to the above mentioned provision of
law, as such it cannot be said by any means that the
impugned SRO s were issued/promulgated without lawful
authority. Moreover, no new tax is being imposed through 35
the impugned SRO s; rather the rate of exemption is
modified only. The rate of exemption can never be treated
as right rather same is a privilege which can
recalled/withdrawn/rescind by the Government at time any
considering the prevailing economic condition of our
country as a basis of necessity.
Apart from that, the issue of Caretaker Government
was discussed thoroughly in the case of Abdul Mannan Khan
vs. Government of Bangladesh (popularly known as 13 th
Amendment Act Case), reported in ADC Vol. IX (A) (2012) 1
(Special issue). In that case validity of the
Constitution 13th Amendment Act, 1996 (Act No.01 of 1996)
was questioned. Though, it was held by the majority that
the Constitution 13th Amendment Act, 1996 (Act No.01 of
1996) is prospectively declared void and ultra -vires to
the Constitution but this Division observed that:
“cieZ©x cÖkœ nB‡Z‡Q †h GB iv‡qi f~Zv‡cÿ cÖ‡qvMKiZt ZwK©Z AvBbwU‡K
void ab initio ‡NvlYv Kiv nB‡e wKbv| cÖkœwU we‡kl ¸iæZ¡c~Y© AvKvi
avib Kwiqv‡Q Kvib 1996 mvj nB‡Z ZwK©Z msweavb ms‡kvab AvB‡bi Aax‡b
mßg, Aóg I beg RvZxq msm` wbe©vPb Abyôvb nBqv‡Q| `yBwU wbe©vwPZ miKvi
10(`k) ermi Kvj †`k cwiPvjbv Kwiqv‡Q Ges Z„Zxq wbe©vwPZ miKvi eZ©gv‡ b
†`k cwiPvjbv Kwi‡Z‡Q| GB `xN© mg‡qi g‡a¨ Avewk¨Kfv‡e †`‡k eû msL¨K
AvBb wewae× nBqv‡Q| eûevi evrmwiK ev‡RU cvk nBqv‡Q| m¤¢eZt GB mg‡qi
g‡a¨ eû msL¨K AvšÍR©vwZK, eûRvwZK I wØcvwÿK Pzw³ ¯^vÿwiZ nBqv‡Q| †gvU 36
K_v, 1996 mvj nB‡Z GB 15 erm‡i ivóªxq AmsL¨ Kg©Kv Û cwiPvwjZ nBqv‡Q|
hw` ZwK©Z AvBbwU void ab initio ejv nq Z‡e GB 15 erm‡ii ivóªxq
mKj Kg©KvÛ A‰ea nBqv hvB‡e Ges †`‡k GKwU Pig wech©‡qi m„wó nB‡e|”
And thereafter finally arrived at some findings
including:
“(16) 2007 mv‡j wØZxq ZË¡veavqK miKv‡ii 90 w`b †gqv` cieZx© AwZwi³
cÖvq `yB ermi mgqKvj cÖkœwe× weavq H AwZwi³ mgqKv‡ji Kvhv©ejx gvR©bv
(condone) Kiv nBj|”
As regards public and private classification the High
Court Division opined that SRO No.158 -Ain/Aikor/2007
dated 28.06.2007 and SRO No.268-Ain/Aikor/2010 dated
01.07.2010 are discriminatory and violative of Article s
27, 31 and 32 of the Constitution. But when it comes to
taxation the concept of fundamental right being Equality
before Law, Right to protection of law and Protection of
right to life and personal liberty cannot be applied
loosely. State has an inherent right to tax its subjects.
Income tax being a direct tax secure a very special place
in connection to the justice and injustice. Lord Sumner
in the case of Wankie Colliery vs. C.I.R., reported in 1
A.T.C. 125: (1922) to A.C. 51, expresses in this regard
as follows:
“I think, however, that considerations of
justice and injustice have not much to do 37
with modern direct taxation; they belong to a
different order of ideas. Taxation is
concerned with expediency or inexpediency. It
regularly results in one person being
burdened for another’s benefit in the sense
that the subject who pays the tax may be last
person to benefit by the expenditure of it.”
It is also held in different jur isdiction of the
subcontinent that:
“Equity and Income tax are strangers.”
[See Raja Jagadambika Pratap Narain Singh
vs. Central Board of Direct Taxes , reported
in (1975) 100 I.T.R. 698 (SC)]
Again, the Supreme Court of India in the case of Elel
Hotels and Investments Limited and O thers vs. Union of
India (UOI), reported in AIR 1990 (SC) 1664, held:
“It is now well settled that a very wide
latitude is available to the legislature in
the matter of classification of objects,
persons and things for purposes of taxation.
It must needs to be so, having regard to the
complexities involved in the formation o f a
taxation policy. Taxation is not now a mere
source of raising money to defray expenses
of Government. It is a recognised fiscal
tool to achieve fiscal and social
objectives.”
So, the classification of the private and public
university should not be exa mined by the loose 38
application of fundamental rights. Such classification
should be examined by the certain characteristics of the
persons. Private Universities are established under a
special law different from the laws under which the
Public Universities are established. This difference in
the formation of private and public universities can be
the basis of classification. Therefore, in respect of
income tax being a direct tax such classification cannot
be viewed as discriminatory.
Articles 15 and 17 under Part II of the Constitution
are supplementary and complementary to each other and
must be read together. Article 15 of the Constitution
provides that the fundamental responsibility of the state
to attain basic necessities of life, including food,
clothing, shelter, education and medical care and Article
17 provides that the state shall adopt effective measures
for the purpose of (a) establishing a uniform, mass
oriented and universal system of education and extending
free and compulsory education to all children to such
stage as may be determined by law.
(emphasis supplied by us) 39
It is noteworthy to mention here that according to
the National Education Policy, 2010, the level of
compulsory primary education in all streams was extended
from Class V to Clas s VIII and the Government also
providing free and compulsory education up to Class VIII.
By quoting from the observation made by Justice
Jeevan Reddy in Unni Krishnan, J.P. and others vs. State
of Andhra Pradesh and others, reported in AIR 1993 SC
2178, the High Court Division in the impugned judgment
and order compared the issue of “right to education” with
“right to life” but in the same case Justice Jeevan Reddy
observed that:
“In the above state of law, it would not be
correct to contend that Mohini Ja in was
wrong in so far as it declared that ‘the
right to education flows directly from right
to life’. But the question is what is the
content of this right? How much and what
level of education is necessary to make the
life meaningful? Does it mean that e very
citizen of this country can call upon the
State to provide him education of his
choice? In other words, whether the citizens
of this country can demand that the State
provide adequate number of medical colleges,
engineering colleges and other educatio nal
institutions to satisfy all their 40
educational needs? Mohini Jain seems to say,
yes. With respect, we cannot agree with such
a broad proposition.”
And in the referred case the learned Judges disposed
of the writ petition and civil appeals in the followi ng
terms amongst others:
“1. The citizens of this country have a
fundamental right to education. The said right
flows from Article 21. This right is, however,
not an absolute right. Its content and
parameters have to be determined in the light
of Articles 45 and 41. In other words every
child/citizen of this country has a right to
free education until he completes the age of
fourteen years. Thereafter, his right to
education is subject to the limits of economic
capacity and development of the State.”
The ‘ORDER’ passed in the case of Unni Krishnan, J.P.
and others vs. State of Andhra Pradesh and others ,
reported in AIR 1993 SC 2178, is relevant to nullify the
impugned judgment and order passed by the High Court
Division, which is reproduced below:
“1. We have had the benefit of going through
the two judgments of our learned Brothers
B.P. Jeevan Reddy and S. Mohan, JJ. We are
in agreement with the judgment of Brother
B.P. Jeevan Reddy, J. except to the extent
indicated below. 41
2. The question which arose in the case of
Miss Mohini Jain v. State of Karnataka:
MANU/SC/0357/1992: [1992]3SCR658, as also in
the present cases before us, is whether a
citizen has a Fundamental Right to education
for a medical, engineering or other
professional degree. The question wh ether
the right to primary education, as mentioned
in Article 45 of the Constitution of India,
is a Fundamental Right under Article 21 did
not arise in Mohini Jain’s case and no
finding or observation on that question was
called for. It was contended befor e us that
since a positive finding on that question
was recorded in Mohini Join’s case it
becomes necessary to consider its
correctness on merits. We do not think so.
3. Learned arguments were addressed in
support of and against the aforesaid view
which have been noticed in the judgments of
our learned Brothers. It was contended by
learned Counsel appearing for some of the
parties before us that Article 37 in Part IV
of the Constitution expressly states that
the provisions contained in Part IV shall
not be enforceable by any court and that,
therefore, assuming the right under Articles
45 to be included within the ambit of
Article 21, it would still not be
enforceable. Emphasis was also laid upon the
language used in Article 45 which requires
the State to “en deavour to provide” for the
free and compulsory education of children. A
comparison of the language of Article 45
with that of Article 49 was made and it was 42
suggested that whereas in Article 49 an
“obligation” was placed upon the State, what
was required by Article 45 was “endeavour”
by the State. We are of the view that these
arguments as also the arguments of counsel
on the other side and the observations in
the decisions relied upon by them would need
a thorough consideration, if necessary by a
larger Bench, in a case where the question
squarely arises.
4. Having given our anxious consideration to
the arguments in favour of and against the
question aforementioned, we are of the view
that we should follow the well established
principle of not proceeding t o decide any
question which is not necessary to be
decided in the case. We, therefore, do not
express any opinion upon this question
except to hold that the finding given in
Mohini Jain’s case on this question was not
necessary in that case and is, therefo re,
not binding Law. We are of the view that if
it becomes necessary to decide this question
in any subsequent case then, for the reasons
set out above and having regard to its vast
impact, inter alia on the country’s
financial capacity, the question may b e
referred to a larger Bench for decision.
5. For the purposes of these cases, it is
enough to state that there is no Fundamental
Right to education for a professional degree
that flows from Article 21.”
(emphasis supplied by us) 43
The respondent-writ petitioners challenged promulgation
of SRO No.156 dated 28.06.2007; SRO No.158 dated 28.06.2007
and SRO No.268 dated 01.07.2010 . It is pertinent to be
mentioned here that in the case of United International
University and other vs. the Commissioner of Taxes and
others, reported in 2017 11 ALR (HCD) 6, a larger Bench of
the High Court Division (wherein the author judge of the
impugned judgment and order was a member) in discussing the
contents of SRO No.454 -L/80 dated 31.12.1980 as amended by
mainly SRO No.178 dated 03.07.2002 observed that:
“Be that as it may, we are of the opinion
that the Government has jurisdiction to issue
Notification exempting or reducing income tax
of any university or educational institution
under Section 44(4)(b) of the Ordinance. In
fact, by subsequent Notification, being SRO
No.268-Law-Income Tax/2010 dated 1 st July,
2010 the Government has done so.”
(emphasis supplied by us)
Said judgment of the larger Bench was affirmed by
this Division on 6th February, 2017, in Civil Petition for
Leave to Appeal Nos.1896-1900 of 2015.
By the impugned judgment and order the High Court
Division declared all the SROs including SRO No.268 -44
Ain/Aikor/2010 dated 01.07.2010 as ultra -vires to the
Constitution and the Ordinance, 1984.
In the circumstances narrated above, despite a clear
observation of the larger Bench which is affirmed by this
Division, can the High Court Division pass the impugned
judgment and order which is totally contradictory to the
judgment passed earlier.
The observation of the High Co urt Division that tax
on private universities will increase the education cost
of the students is not correct, since income tax is a
direct tax payable only when a private university earns
income; In case of loss no tax is payable.
It is pertinent to mention here that p rovisions providing
for an exemption may be properly construed strictly against the
person who makes the claim of an exemption. In other words,
before an exemption can be recognized, the person or property
claimed to be exempt must come clearly within the language
apparently granting the exemption . (The Construction of
Statutes, by Earl T. Crawford, reprinted in 2014) 45
Moreover, exemption laws are in derogation of equal rights,
and this is an equally important reason for construing them
strictly. And a third reason appears from the Court’s language
in the case of Bank of Commerce vs. Tennessee, reported in 161
U.S. 134, 145; 16 S.Ct. 456; 40 L.Ed. 645, held:
“Taxes being the sole means by which
sovereignties can maintain their existence, any
claim on the part of anyone to be exempt from the
full payment of his share of taxes on any portion
of his property must on the account be clearly
defined and founded on plain language. There must
be no doubt or ambiguity used upon which the
claim to t he exemption is founded. It has been
said that a well founded doubt is fatal to the
claim; no implications will be indulged in for
the purpose of construing the language used as
giving the claim for exemption, where such claim
is not founded upon the plain and clearly
expressed intention of the taxing power.”
However, the writ -petitioner-respondent private
universities may not be required paying tax if it enjoys
tax exemption under any lawful arrangement.
Accordingly, all the civil appeal s are disposed of
with the observation made above.
The impugned judgment and order dated 09.05.2016
passed by the High Court Division in Writ Petition 46
Nos.9562-9564 of 2008, 9566 -9567 of 2008, 11545 of 2015,
2110 of 2013, 6861 of 2012, 10929 of 2014, 8187 of 2015,
8930 of 2011, 11546 of 2015, 3681 -3682 of 2013, 1969 of
2009, 2682 of 2016, 6404 of 2014, 4049 of 2013, 8507 of
2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of 2014,
14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of 2013,
9733 of 2015, 9934 of 2015, 12558 of 20 12, 986-987 of
2011, 4878 of 2013, 10769 of 2014, 8697 of 2011, 5795 of
2014, 2510 of 2015, 3371 of 2015, 6177 of 2013, 1131 of
2009, 8985 of 2010, 11840 of 2015, 4048 of 2013, 12885 of
2015 and 1891 of 2015 is hereby set-aside.
No order as to costs.
J.
J.
J.
J.
The 27th February, 2024.
Jamal/B.R./Words-*8856*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 179 OF 2018
(From the judgement and order dated the 6th day of
September 2016 passed by the High Court Division in Civil
Revision No.914 of 2015).
Durnity Daman Commission,
represented by its Chairman
: . . . . Appellant
-Versus-
Md. Mizanur Rahman and
others
: . . . Respondents
For the Appellant : Mr. Md. Khurshed Alam Khan, Senior
Advocate, instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record
For the Respondents : Mr. Aneek R. Hoque, Advocate with Mr.
Rafsan-Al-Alvi, Advocate, instructed by
Mr. Syed Mahbubar Rahman,
Advocate-on-Record
Date of hearing :
The 23th day of January and 28th day of
February, 2024
Date of judgment : The 5th day of March, 2024
JUDGMENT
M. Enayetur Rahim, J: This civil appeal, by leave, is
directed against the judgment and order dated 06.09.2016
passed by a Division Bench of the High Court Division in
Civil Revision No.914 of 2015 making the Rule absolute.
The facts, relevant for disposal of this civil
appeal, in brief, are that the present respondent Nos. 1-6
as plaintiffs instituted Money Suit No. 06 of 2012 in the
Court of Joint Sessions Judge, 2nd Court, Dhaka, impleading
present respondent Nos. 7-13 for realization of Tk.
55,99,23,386.00/-/-(fifty five crore, ninety nine lakh, 2
three hundred and eighty six). In the plaint, it was
contended that defendant No.1 and 2-5 of the suit made
several advertisements in their website and seminars
regarding their business activities as gold trading, money
multiplication profit on any investment in the company.
The plaintiffs had deposited their money in the
defendants' account by deposit slips and by online
transfer in the respective ID numbers of the plaintiffs.
The plaintiffs deposited in the account of defendant No.1
Tk.24,44,20,929/-in good faith upon assurance of the
defendants' business policy. As a cunning device to
defraud the investors including the plaintiffs, defendant
Nos. 1-5 showed profits online against respective IDs of
the investors including the plaintiffs, but when the
plaintiffs went to draw their profits, the defendants did
not give any money. Thereafter, the plaintiffs went to the
defendant No.1 only to find the owners and other directors
of defendants’ Company but they went into hiding.
Thereafter, the plaintiffs having come to know about some
bank accounts of defendant No.1 on 16.02.2012 filed an
application before the Chairman of Bangladesh
Telecommunication Regulatory Commission (BTRC) requesting
him to take effective steps. On 10.02.2012, the plaintiff
respondent Nos. 1-5 went to the defendant’s office and
requested to return their deposited money but the
defendants bluntly refused. Then the plaintiffs on the
selfsame statement of the facts filed an application
under Order XXXIX Rule 1 and 2 read with section 151 of
the Code of Civil Procedure for temporary injunction
restraining defendants No.1-5 from withdrawing money from 3
the bank accounts and the plaintiffs also filed an
application under Order XXXVIII, Rule 5 read with section
151 of the Code of Civil Procedure praying for attachment
of the bank accounts of defendant No.1 maintained with
defendant Nos.6-8 banks before judgment.
Upon hearing, the trial Court by order dated
28.03.2012 granted temporary injunction and allowed the
application for attachment. The defendants having not
entered appearance in the suit, the trial Court decreed
the suit ex-parte vide judgment and order dated
26.11.2013.
The plaintiffs as decree holders levied the decree in
execution in Money Decree Execution Case No.1 of 2014 on
09.03.2014. On 31.03.2014 the decree holders filed an
application in the executing Court praying for a direction
upon the defendant-judgment debtor Nos. 6-8 Banks to issue
pay Order/DD/Cash of the decretal amount including
interest till issuance of Pay Order/DD/Cash, and also for
an order of attaching bank accounts of defendant-judgment
debtors No.1-5 till realization of decretal amount with
interest and initially, for issuance of a direction upon
defendant-judgment debtor No. 7, BRAC Bank, Elephant Road
Branch, Dhaka to issue Pay Order including interest at
bank rate prevailing on 23.02.2012 in favour of the decree
holders from account No. 1535201690148001 maintained by
defendant-judgment debtor Nos. 1-5.
The executing Court by order dated 25.06.2014 allowed
the decree holders’ application dated 31.03.2014 and
directed to issue a letter upon judgment debtor No. 7,
BRAC Bank Ltd. calling upon it to submit statement of 4
Account No. 1535201690148001 maintained by judgment debtor
Nos.1-5. Thereafter, on 10.07.2014 the statement of the
account was produced before the Court. The executing Court
by order No.8 dated 14.07.2014 issued an order directing
judgment debtor No.7 BRAC Bank Ltd. to issue pay order of
Tk. 65,65,72,154/- from the Account No. 1535201690148001
of judgment debtor No. 1-5.
On 20.07.2014, defendant-judgment debtor No. 7, BRAC
Bank Ltd., Elephant Road Branch, Dhaka filed an
application in the executing Court praying for re-
consideration of the order dated 14.07.2014 to issue pay
order and to stay operation of the said order till further
order, stating therein, inter alia, that the judgment
debtor No.7 had no knowledge of the money decree execution
case till receipt of the said order. The Money Laundering
prevention Division of Bangladesh Bank temporarily
suspended operation of the said account along with other
accounts in view of enquiry and investigation by Anti-
Corruption Commission. Subsequently, on the prayer of
Anti-Corruption Commission, the Special Judge and
Metropolitan Sessions Judge, Dhaka, by order dated
06.07.2010, accorded permission to freeze the said account
along with accounts maintained with 5 others banks, and as
such, the bank account in question is frozen now. Since
the order according permission to freeze the account in
question passed by the superior Court was not within the
knowledge of the executing Court, the order dated
14.07.2014 was required to be stayed till further order.
The decree holders filed a written objection against
the said application dated 20.07.2014 filed by judgment 5
debtor No.7. Thereafter, several times the hearing of the
application was adjourned for producing necessary
documents and paper and on 15.10.2014, after hearing both
the parties, and perusing the papers submitted by both
sides, the executing Court by order No. 16 held that it
could not come to a conclusion as to whether the account
in question has been frozen by a competent Court or Anti
Corruption Commission, and in such a situation the decree
holders were directed to file an affidavit in support of
their claim, and 17.11.2014 was fixed for further order
subject to filing of that affidavit.
On 13.11.2014, the decree holders filed affidavit in
compliance of the order dated 15.10.2014. On 17.11.2014,
the matter was taken up and in view of the conflicting
claim of the decree holders and judgment debtor No. 7, the
executing Court ordered to send a letter to Director
General (Legal and Prosecution), Anti-Corruption
Commission, to let the Court know the real state of
affairs fixing 22.01.2012 for receiving reply. No reply
came on the said date and next date was fixed for order on
22.02.2012. On that day it was further adjourned to
09.03.2012 and the executing Court on 09.03.2015 rejected
the decree holders' application.
Being aggrieved, the plaintiffs filed Civil
Revision No. 914 of 2015 before the High Court Division.
A Division Bench of the High Court Division after
hearing the Rule by the impugned judgment and order dated
06.09.2016 made the Rule absolute and thus, set aside the
order dated 09.03.2015 rejecting the plaintiffs’-decree 6
holders’ prayer to direct the defendant-judgment debtor to
comply with the order dated 14.07.2014.
Feeling aggrieved by the said judgment and order the
Durnity Daman Commission filed Civil Petition for Leave to
Appeal No.198 of 2018. Accordingly, leave was granted on
01.08.2018. Hence, this appeal.
Mr. Md. Khushed Alam Khan, learned Senior Advocate
appearing for the appellant made submissions in line with
grounds upon which leave was granted. In addition, the
learned Advocate submits that with regard to the Unipay 2U
a money laundering case (Special Case No.2 of 2014) was
pending before the Special Judge, Court No.3, Dhaka at the
relevant time and in the meantime some of the defendants-
judgment debtors have been convicted by the learned
Special Judge having found guilty of the offence under
section 4(2) of the Money Laundering Protirodh Ain, 2012
and some of the convicted persons have filed appeal before
the High Court Division. But by suppressing the fact and
without impleading the Durnity Daman Commission, the
plaintiffs filed the suit and obtained an ex-parte decree
and as such, the impugned judgment and order passed by the
High Court Division is liable to be set aside. The learned
Advocate also submits that in the Money Laundering
Protirodh Ain, 2012 there are provisions of section 15 and
16 for releasing the attached or frozen property. Section
15 relates to releasing the attached property and section
16 deals with the provision for appeal. But without
exhausting that forum and without impleading the Durnity
Daman Commission the suit was filed and an ex-parte decree
was obtained and in the writ petition Anti-Corruption 7
Commission was also not made a party as such considering
the same the impugned judgment and order passed by the
High Court Division is liable to be set aside.
Mr. Aneek R Hoque, learned Advocate, appearing for
the respondents makes submissions supporting the impugned
judgment and order of the High Court Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division as well as
the judgment and order of learned District Judge and other
materials as placed before us.
In the instant case from the records and submissions
made by the learned Advocates for the respective parties,
the following facts are revealed:
i) that the respondent Nos.1-6 (plaintiffs)
obtained a decree in Money Suit No. 06 of 2012,
passed by the learned Joint District Judge, Dhaka in
respect of Tk. 55,99,23,386/-(fifty five crore ninety
nine lakh three hundred and eighty six) against
respondent Nos. 7-13 (defendants);
ii) after obtaining the decree respondent Nos.1-
6 filed Money Execution Case No. 1 of 2014;
iii) the executing Court ultimately refused to
direct the judgment debtor Brac Bank to pay the money
to the decree holders on the plea that the account of
the judgment debtor was frozen by the order of the
competent Court;
iv) some of the defendants-judgment debtors
were convicted by the learned Special Judge, Court
No.3, Dhaka in Special Case No. 2 of 2014 having 8
found guilty under section 4(2) of the Money
Laundering Protirodh Ain, 2009 read with section 4(2)
of the Money Laundering Protirodh Ain, 2012 and
sentenced thereunder to suffer rigorous imprisonment
for 12 years along with a fine of Tk.
2700,42,11,784.14 (two thousand and seven hundred
crore, forty two lakh, eleven thousand, seven hundred
and eighty four taka and fourteen paisa) to each
convict and the accounts in question in respect of
Tk. 420,14,29,663.05 (420 crore 14 lakh 29 thousand 6
hundred and 63 and 05 paisa) were confiscated in
favour of the State;
v) the convicted persons preferred Criminal
Appeal being Nos.2598 of 2019 and 2528 of 2019 before
the High Court Division against the said judgment and
order of conviction and sentence, which are still
pending.
In view of the above facts, it is now admitted
position that though the respondent Nos. 1-6 obtained an
ex-parte decree for realization of money in Money Suit No.
6 of 2012 and eventually filed Money Execution Case No. 01
of 2014 before the learned Joint District Judge, 2nd Court,
Dhaka but facts remain that the accounts of the judgment
debtors-respondents were frozen and confiscated by a
competent Court and a criminal appeal is pending before
the High Court Division.
The High Court Division though noticed that the
accounts were frozen but in an arbitrary and unprecedented
manner held that the Anti-Corruption Commission did not
take proper step to place document in regard to the 9
freezing of the accounts of the judgment debtors. The High
Court Division has failed to take notice that in the writ
petition the Anti-Corruption Commission was not made a
party and they were not given a chance to place their
case. When the High Court Division noticed that at the
instance of the Anti-Corruption Commission the accounts of
the judgment debtors were frozen, the High Court Division
ought not to pass any order in regard to the freezing of
the accounts. Knowing of the facts of freezing of the
accounts of the judgment debtors, the High Court Division
has passed the impugned judgment and order, which is
arbitrary and cannot be sustainable in law.
The victims or the decree holders as the case may be,
who deposited money to the Unipay 2U they can claim their
money under the Money Laundering Protirodh Ain, 2012. In
that Ain, there is specific provision for the same.
Section 15, 16, 17, 18, and 19 relate to the
freezing/attachment of property and confiscation of the
property and appeal by the aggrieved party against those
orders. The above provisions of law run as follows:
""15| Aeiæ×K…Z ev ‡µvKK…Z m¤úwË †diZ cÖ`vb|-(1) aviv 14 Gi Aaxb Av`vjZ †Kvb m¤úwË Aeiæ×KiY ev ‡µvK Av‡`k cÖ`vb Kwi‡j, Awfhy³ e¨w³ ev mËv e¨ZxZ Ab¨ †Kvb e¨w³ ev mËvi D³ m¤úwˇZ †Kvb ¯^v_© _vwK‡j wZwb ev D³ mËv Dnv †diZ cvBevi Rb¨ Aeiæ×KiY ev †µvK Av‡`k cÖPv‡ii ZvwiL nB‡Z 30(wÎk) w`‡bi g‡a¨ Av`vj‡Z Av‡e`b Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb e¨w³ ev mËv Av`vj‡Z Av‡e`b Kwi‡j Av‡e`bc‡Î wb¤œewb©Z Z_¨vw` D‡jøL Kwi‡Z nB‡e, h_vt- (K) gvwbjÛvwis ev †Kvb m¤ú„³ Aciv‡ai mwnZ D³ m¤úwËi cÖZ¨ÿ ev c‡ivÿfv‡e †Kvb mswkøóZv bvB; (L) Av‡e`bKvix cÖZ¨ÿ ev c‡ivÿfv‡e Awfhy³ gvwbjÛvwis ev Ab¨ †Kvb m¤ú„³ Aciv‡ai mv‡_ m¤ú„³ bb; (M) Av‡e`bKvix Awfhy‡³i bwgbx bb ev Awfhy‡³i c‡ÿ †Kvb `vwqZ¡ cvjb Kwi‡Z‡Qb bv; (N) Aeiæ×KiY ev †µvKK…Z m¤úwˇZ Awfhy³ e¨w³ ev mËvi †Kvb ¯^Z¡, ¯^v_© ev gvwjKvbv bvB; Ges (O) Aeiæ×KiY ev †µvKK…Z m¤úwˇZ Av‡e`bKvixi ¯^Z¡, ¯^v_© I gvwjKvbv iwnqv‡Q| 10
(3) aviv 14 Gi Dc-aviv (5) G hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb m¤úwË †diZ cvBevi Rb¨ Av`vjZ †Kvb Av‡e`bcÖvß nB‡j Av‡e`bKvix, Z`šÍKvix ms¯’v I Awfhy³ e¨w³ ev mËv‡K ïbvbxi my‡hvM cÖ`vb Kwi‡eb Ges ïbvbx A‡šÍ cÖ‡qvRbxq KvMRvw` ch©v‡jvPbvµ‡g I ivóª KZ…©©K ewY©Z m¤úwˇZ cÖZ¨ÿ ev c‡ivÿfv‡e gvwbjÛvwis ev m¤ú„³ Aciv‡ai mv‡_ m¤ú„³Zvi MÖnY‡hvM¨ m‡›`‡ni †Kvb KviY Dc¯’vcb bv Kwi‡j, Dc-aviv (1) Gi Aaxb `vwLjK…Z Av‡e`bKvixi Av‡e`b m¤ú‡K© Av`vjZ mš‘ó nB‡j Aeiæ×KiY ev †µvK Av‡`k evwZjµ‡g m¤úwËwU, Av‡`‡k DwjøwLZ wba©vwiZ mg‡qi g‡a¨, Av‡e`bKvixi AbyKz‡j n¯ÍvšÍ‡ii Av‡`k cÖ`vb Kwi‡eb| 16| m¤úwË Aeiæ×KiY ev †µvK Av‡`‡ki weiæ‡× Avcxj|- (1) GB AvB‡bi Aaxb Av`vjZ †Kvb m¤úwËi Aeiæ×KiY ev †µvK Av‡`k cÖ`vb Kwi‡j D³iƒc Av‡`‡ki weiæ‡× msÿzä e¨w³ ev mËv 30(wÎk) w`‡bi g‡a¨ nvB‡KvU© wefv‡M Avcxj Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Avcxj `v‡qi Kiv nB‡j Avcxj Av`vjZ cÿe„›`‡K, ïbvbxi Rb¨ hyw³m½Z mgq w`qv, ïbvbx A‡šÍ †hBiƒc Dchy³ g‡b Kwi‡e †mBiƒc Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (3) aviv 14 Gi Aaxb †Kvb m¤úwËi wel‡q Av`vjZ KZ…©K cÖ`Ë Aeiæ×KiY ev †µvK Av‡`‡ki weiæ‡× ‡Kvb msÿzä ev mËv Avcxj Kwi‡j Ges Avcxj Av`vjZ KZ„©K wfbœiƒc †Kvb Av‡`k cÖ`vb Kiv bv nB‡j Avcxj wb®úwË bv nIqv ch©šÍ D³iƒc Aeiæ×KiY ev †µvK Av‡`k Kvh©Ki _vwK‡e| 17| m¤úwËi ev‡RqvßKiY|-(1) GB AvB‡bi Aaxb †Kvb e¨w³ ev mËv gvwbjÛvwis Aciv‡a †`vlx mve¨¯’ nB‡j Av`vjZ Aciv‡ai mwnZ cÖZ¨ÿ ev c‡ivÿfv‡e m¤ú„³ †`‡k ev †`‡ki evwn‡i Aew¯’Z †h †Kvb m¤úwË iv‡óªi AbyyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (2) Dc-aviv (1) G hvnv wKQzB _vKzK bv †Kb GB AvB‡bi Aaxb gvwbjÛvwis Aciv‡ai mv‡_ mswkøó †Kvb AbymÜvb I Z`šÍ ev wePvi Kvh©µg PjvKvjxb mswkøó Av`vjZ cÖ‡qvRb‡ev‡a †`‡k ev †`‡ki evwn‡i Aew¯’Z †h †Kvb m¤úwË iv‡óªi AbyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (3) GB AvB‡bi Aaxb gvwbjÛvwis Aciv‡ai Rb¨ †`vlx mve¨¯’ †Kvb e¨w³ cjvZK _vwK‡j ev Awf‡hvM `vwL‡ji ci g„Zz¨eiY Kwi‡j Av`vjZ D³ e¨w³i Aciv‡ai m¤ú„³ m¤úwËI iv‡óªi AbyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| e¨vL¨v|-h_vh_ Kvh© e¨e¯’v MÖnY Kiv m‡ËI †MÖdZvix c‡ivqvbv Rvixi ZvwiL nB‡Z 6 (Qq) gv‡mi g‡a¨ hw` Awfhy³ e¨w³ Av`vj‡Z AvZ¥mgc©b Kwi‡Z e¨_© nq ev D³ mg‡qi g‡a¨ Zvnv‡K †MÖdZvi Kiv bv hvq Zvnv nB‡j D³ e¨w³ GB avivi D‡Ïk¨ c~iYK‡í cjvZK ewjqv MY¨ nB‡eb| (4) GB avivi Aaxb Av`vjZ KZ…©K †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`v‡bi c~‡e© wKsev gvgjv ev Awf‡hvM `v‡qi Kwievi c~‡e© hw` †Kvb e¨w³ ev mËv mij wek^vm Ges Dchy³ g~j¨ cÖ`vb mv‡c‡ÿ ev‡Rqv‡ßi Rb¨ Av‡e`bK…Z m¤úwË µq Kwiqv _v‡Kb Ges Av`vjZ‡K wZwb ev D³ mËv GB g‡g© mš‘ó Kwi‡Z mÿg nb †h, wZwb ev D³ mËv D³ m¤úwËwU gvwbjÛvwis Gi mwnZ m¤ú„³ ewjqv ÁvZ wQ‡jb bv Ges wZwb ev D³ mËv mij wek^v‡m m¤úwËwU µq KwiqvwQ‡jb, Zvnv nB‡j Av`vjZ D³ m¤cwË ev‡Rqvß Kwievi Av‡`k cÖ`vb bv Kwiqv Dnvi weµqjä A_© ivóªxq †KvlvMv‡i, Av`vjZ KZ…©K wba©vwiZ mgqmxgvi g‡a¨ Rgv †`Iqvi Rb¨ †`vlx mve¨¯’ e¨w³ ev mËv‡K wb‡`©k w`‡Z cvwi‡e| (5) Av`vjZ hw` gvwbjÛvwis ev m¤ú„³ Aciv‡ai mv‡_ cÖZ¨ÿ ev c‡ivÿfv‡e mswkøó m¤úwËi Ae¯’vb wba©viY ev ev‡Rqvß Kwi‡Z bv cv‡ib ev m¤úwË Ab¨ ‡Kvb fv‡e e¨env‡ii d‡j Aw¯ÍZ¡ wejyß nq, Zvnv nB‡j- (K) Aciv‡ai mv‡_ m¤ú„³ bq Awfhy³ e¨w³i Ggb mgg~‡j¨i m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e; (L) Awfhy³ e¨w³i weiæ‡× †h cwigvY m¤úwË Av`vq Kiv hvB‡e bv Zvnvi mgcwigvY Avw_©K `Û cÖ`vb Kwi‡Z cvwi‡e| 11
(6) GB avivi Aaxb †Kvb m¤úwË ev‡Rqvß Kiv nB‡j Av‡`‡ki †bvwUk Av`vjZ KZ©„K †h e¨w³ ev mËvi wbqš¿‡Y m¤úwËwU iwnqv‡Q †mB e¨w³ ev mËvi me©‡kl ÁvZ wVKvbvq †iwR÷vW© WvK‡hv‡M cvVvB‡Z nB‡e Ges m¤úwËi Zdwmjmn mKj weeiY D‡jøLµ‡g miKvwi †M‡R‡U Ges Ab~b¨ 2 (`yB) wU eûj cÖPvwiZ RvZxq ˆ`wbK cwÎKvq [1(GK)wU evsjv I 1(GK)wU Bs‡iRx] weÁwß cÖPvi Kwi‡Z nB‡e| (7) GB avivi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³ m¤úwËi gvwjKvbv iv‡óªi Dci b¨¯Í nB‡e Ges ev‡Rqvß Kwievi Zvwi‡L m¤úwËwU hvnvi wR¤§vq ev gvwjKvbvq _vwK‡e wZwb ev mswkøó mËv h_vkÖxNª m¤¢f, D³ m¤úwËi `Lj iv‡óªi eive‡i n¯ÍvšÍi Kwi‡eb| (8) cÖZ¨ÿ ev c‡ivÿfv‡e Aciva jä m¤úwË hw` ˆea Dcv‡q AwR©Z A_© ev m¤úwËi mwnZ mswgwkÖZ Kiv nBqv _v‡K Zvnv nB‡j D³ m¤úwˇZ Av`vjZ KZ©„K wba©vwiZ Aciva jä A_© ev m¤úwËi g~‡j¨i Dci A_ev Aciva jä ev m¤úwËi g~j¨ wba©viY Kiv m¤¢e bv nB‡j AR©‡bi Dcvq wbwe©‡k‡l mswgwkÖZ m¤ú~b© A_© ev m¤úwË iv‡óªi AbyKz‡j ev‡Rqvß Av‡`k cÖ`vb Kiv hvB‡e| 18| ev‡RqvßK…Z m¤úwË †diZ cª`vb|-(1) aviv 17 Gi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³ m¤úwˇZ †`vlx e¨w³ ev mËv e¨ZxZ Ab¨ †Kvb e¨w³ ev mËvi †Kvb ¯^Z¡, ¯^v_© ev AwaKvi _vwK‡j wZwb ev D³ mËv Dnv †diZ cvBevi Rb¨ ev‡RqvßKi‡Yi weÁwß cwÎKvq me©‡kl cÖPv‡ii ZvwiL nB‡Z 30(wÎk) w`‡bi g‡a¨ Av`vj‡Z Av‡e`b Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Av‡e`bcÖvß nB‡j Av`vjZ gvgjv `v‡qiKvix, †`vlx e¨w³ ev mËv Ges Av‡e`bKvix‡K, ïbvbxi Rb¨ hyw³m½Z mgq w`qv, ïbvbx A‡šÍ wbb¥ewY©Z welqmg~n we‡ePbv Kwiqv cÖ‡qvRbxq Av‡`k cÖ`vb Kwi‡Z cvwi‡e, h_vt- (K) Aciva msNU‡bi mwnZ Av‡e`bKvixi ev ev‡RqvßK…Z m¤úwËi ev m¤úwËi †Kvb As‡ki †Kvb ms‡køl wQj wKbv; (L) ev‡Rqvß m¤úwË AR©‡b Av‡e`bKvixi ˆea AwaKvi iwnqv‡Q wKbv; (M) Aciva msNU‡bi mgqKvj Ges ev‡RqvßK…Z m¤úwË Av‡e`bKvixi gvwjKvbvq Avwmqv‡Q GBiƒc `vweK…Z mgqKvj; Ges (N) Av`vj‡Zi wbKU cÖvmw½K we‡ewPZ Ab¨ †h †Kvb Z_¨| 19| ev‡RqvßKiY Av‡`‡ki weiæ‡× Avcxj|-(1) GB AvB‡bi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³iƒc Av‡`‡ki weiæ‡× msÿä cÿ 30(wÎk) w`‡bi g‡a¨ nvB‡KvU© wefv‡M Avcxj Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Avcxj `v‡qi Kiv nB‡j Avcxj Av`vjZ Dfq cÿ‡K, ïbvbxi hyw³m½Z my‡hvM cÖ`vb Kwiqv, ïbvbx A‡šÍ †hBiƒc Dchy³ g‡b Kwi‡e †mBiƒc Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó
In view of the above provisions of law if anyone has
claim or interest in the money/property attached/frozen or
confiscated by the Court concerned, they can move before
the competent Court for their redress. In the instant case
they may move before the High Court Division for their
claim as the accounts of the judgment debtors are/were
confiscated, if so advised and if such application is 12
filed, the High Court Division has got the authority to
deal with the matter in accordance with law.
In the instant case, it is admitted fact that Anti-
Corruption Commission till date did not make any
notification in the newspaper in respect of the
confiscated property as required under the law. Thus the
Anti-Corruption Commission is directed to publish notice
in the daily newspaper in regard to the confiscated
property within 30 (thirty) days from the date of receipt
of this judgment and the respondent, decree holders,
plaintiffs or any other claimant are at liberty to
approach before the High Court Division for their
respective claim if so advised.
In view of the above, we are inclined to dispose of
the appeal.
Accordingly, the appeal is disposed of without any
order as to costs.
The judgment and order dated 06.09.2016 passed by the
High Court Division in Civil Revision No. 914 of 2015 is
set aside.
C. J.
J.
J.
J.
B.S./B.R./*Words-3,432*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CRIMINAL APPEAL NO.72 OF 2019
(From the judgment and order dated 11.10.2017 passed by the High Court Division in Death Reference
No.38 of 2011 with Criminal Appeal No.3787 of 2011 and Jail Appeal No.147 of 2011).
Chaitonya Sarkar ……..….Appellant
-Versus-
The State and another .…..….Respondents
For the appellant
: Mr. Shaikh Azmol Hayat, Advocate with
Mr. Hamidur Rahman, Advocate,
instructed by Mr. Md. Nurul Islam
Chowdhury, Advocate-on-Record.
For the respondent
No.1
: Mr. Md. Sarwar Hossain, Deputy Attorney
General with Mr. Mohammad Saiful
Alam, Assistant Attorney General,
instructed by Mr. Haridas Paul, Advocate-
on-Record.
For the respondent
No.2
: Not represented.
Date of hearing and
judgment
: The 03rd day of January, 2024
JUDGMENT
Obaidul Hassan, C.J. This Criminal Appeal by leave granting
order dated 15.07.2019 in Civil Petition for Leave to Appeal No.148 of
2018 is directed against the judgment and order of conviction and
sentence passed by the High Court Division on 11.10.2017 in Death
Reference No.38 of 2011 heard analogously with Criminal Appeal
No.3787 of 2011 and Jail Appeal No.147 of 2011 arising out of Motlab
South Police Station Case No.03 dated 02.10.2007 corresponding to
=2=
G.R. No.90 of 2007 and Nari-O-Shishu Nirjatan Daman Case No.01 of
2008 dismissing the appeal converting the conviction of the appellant
awarded under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 (for short Nari-O-Shishu Ain) to one under Section 302 of
the Penal Code, 1860 and thereby commuting the sentence of the
appellant from death penalty to imprisonment for life.
The prosecution case, in short, is that one Kartick Baidya
lodged an ejahar with the Motlob South Police Station being Motlob
South Police Station Case No.03 dated 02.10.2007 under Sections
11(Ka)/30 of Nari-O-Shishu Ain alleging, inter alia, that Sanchita
Rani, daughter of the informant was married to the accused
Chaitonya Sarker. After marriage they were living together as
husband and wife, but from the very beginning of their conjugal life
the accused-appellant had been demanding dowry amounting
Tk.1,00,000.00 from the victim Sanchita Rani and used to assault her.
On 02.10.2017 at about 09:00 a.m. one Kanailal, the father of the
accused told the informant over mobile phone that due to physical
illness the victim was got admitted into the Motlab Hospital.
Thereafter, the informant along with his wife came to the house of
the accused-appellant on the same day at 1.00 p.m. and found the
dead body of the victim therein. On query to the inmates of the house
they told that the victim committed suicide.
=3=
The Investigating Officer, after completing investigation,
submitted Charge Sheet being No.88 dated 11.11.2007 under Section
11(Ka)/30 of Nari-O-Shishu Ain against the convict-appellant and
others. The case was eventually transferred to the Nari-O-Shishu
Nirjatan Daman Tribunal No.2, Chandpur (for short Tribunal) for
trial and charge was framed against the convict-appellant and others
under the aforesaid provisions of law. To substantiate the case, the
prosecution examined as many as seven witnesses. Upon closure of
the evidence of the prosecution witnesses, the convict-appellant
along with others were examined under Section 342 of the Code of
Criminal Procedure to which they pleaded innocence. They informed
the Court that they would not adduce any evidence in support of
their plea.
The defence case, as it reveals from the trend of cross-
examination is that the convict-appellant along with others were
innocent and the victim committed suicide, but they had been falsely
implicated in this case.
Tribunal after considering the evidences and materials on
record vide judgment and order dated 19.06.2011 found the convict-
appellant guilty and sentenced him to death penalty under Section
11(Ka) of Nari-O-Shishu Ain and acquitted the rest of the accused
persons. Death sentence proceeding has been submitted to the High
Court Division by way of Reference by the Tribunal and the
=4=
Reference has been noted as Death Reference No.38 of 2011. The
convict-appellant also preferred Criminal Appeal No.3787 of 2011
and Jail Appeal No.147 of 2011 before the High Court Division.
The High Court Division vide judgment and order of
conviction and sentence dated 11.10.2017 rejected the Death
Reference and dismissed the Criminal Appeal and Jail Appeal.
However, the High Court Division converted the conviction of the
appellant from Section 11(Kha) of Nari-O-Shishu Ain to one under
Section 302 of the Penal Code, 1860 and the death sentence was
commuted to imprisonment for life.
Being aggrieved by and dissatisfied with the impugned
judgment and order of conviction and sentence dated 11.10.2017
passed by the High Court Division, the convict-appellant filed the
Criminal Petition for Leave to Appeal No.148 of 2018 before this
Division and leave was granted on 15.07.2019 and hence the instant
Criminal Appeal.
Mr. Shaikh Azmol Hayat with Mr. Hamidur Rahman, learned
Advocates appearing for the convict-appellant took us through the
First Information Report(FIR), the Inquest Report, the Post Mortem
Report, the Charge Sheet, testimonies of the witnesses, the judgments
and orders passed by the Tribunal and the High Court Division,
connected materials on record submits that the High Court Division
to consider the judgment and order of conviction and sentence is bad
=5=
in law as well as in facts and, as such, the impugned judgment and
order of conviction and sentence is liable to be set aside. The learned
Counsel for the appellant contend next that the High Court Division
came to a finding that demanding of dowry resulting the murder of
the victim is not proved and, thus, set aside the sentence under
Section 11(Ka) of Nari-O-Shishu Ain and under the said
circumstances, the High Court Division should have sent back the
record for fresh trial to the appropriate Court having jurisdiction
upon framing charge under proper legal provisions, but the High
Court Division wrongly and illegally convicted the appellant under
Section 302 of the Penal Code and sentenced him imprisonment for
life. The learned Counsel argue further that there is no eye witness of
the occurrence and the alleged conviction and sentence is based on
circumstantial evidence along with post mortem report which cannot
be treated as conclusive evidence to prove the guilt of the appellant,
but the High Court Division failed to consider that the judgment and
order of conviction and sentence is based on surmise and conjecture
and not on legal evidence and, as such, the impugned judgment and
order of conviction and sentence is liable to be scraped.
In opposition Mr. Md. Sarwar Hossain, learned Deputy
Attorney General with Mr. Mohammad Saiful Alam, Assistant
Attorney General appearing for the respondent No.1 put forth their
submissions supporting the judgment and order of conviction and
=6=
sentence passed by the High Court Division and the Tribunal and
prayed for dismissal of the appeal.
Now, to ascertain whether the prosecution has been able to
prove the charge against the convict-appellant let us examine and
analyze the depositions of the witnesses adduced by the prosecution.
P.W.1, Kartik Baidya, the informant and father of the victim
Sanchita stated in his deposition that the victim was married to the
accused-appellant three months earlier of the date of occurrence. At
the time of marriage ceremony he gifted gold ornaments weighing
five bhories to the victim and gave cash money amounting
Tk.55,000.00 to the accused and also spent Tk.2.5-3.00 lac in the
marriage. On 02.10.2007 in the morning the father of the accused-
appellant told the informant that his daughter was admitted to
hospital due to serious illness. Soon after the informant started for the
house of the accused, but on the way he came to know that the victim
was killed by the accused persons. The accused persons had been
demanding dowry amounting Tk.1,00,000.00 from the victim on
several occasions, but on her failure to pay the dowry the accused
persons killed the victim. On arrival of the informant at the house of
the accused-appellant at about 2:00 p.m. he found the dead body of
the victim at the door of the house. Subsequently, the police came to
the spot and preparing inquest report, took his signature on the
report and took the dead body to the police station. The informant
=7=
filed ejahar with the police station. This witness identified the FIR and
his signature thereon as Exhibits-1 and 1/1 respectively and also
identified the inquest report and his signature thereon as Exhibits-2
and 2/1 respectively.
During cross-examination he stated that within three months of
marriage the victim came to his house twice to visit them. He did not
assault the victim when she came to his house last time. He knew
Kanailal the son of his neighbour Hiralal. He did not state in the FIR
about getting the victim with Kanai at 9 O’clock in the night. He
denied the defence suggestion to the effect that everyone knew about
the love affair of the victim with Kanailal. He further denied the
suggestion that the accused-appellant declined to take the victim
with him in her in-law’s house last time the victim visited the house
of the informant. He further denied the suggestion that the victim
solemnized her marriage with Kanailal at Kalibari. He further denied
the defence suggestion that the victim committed suicide and the
accused was implicated in the case falsely. This witness stated in his
cross-examination that he found the tongue of the victim coming out
of her mouth.
P.W.2, Kanika Rani, the mother of the victim stated in his
deposition that the accused persons killed his daughter for dowry
amounting Tk.1,00000.00. The father-in-law of the victim informed
them that the victim was sent to the hospital for physical illness.
=8=
Subsequently, on going to the house of the accused-appellant found
the dead body of the victim. The accused killed the victim by
strangulation with saree.
During cross-examination she stated that accused Chaitanya
and the victim went to visit their house 4/5 days before the
occurrence. She further stated that the victim had no relation with
Kanailal, the son of Hiralal. She denied the defence-suggestion that
her daughter had illicit relation with Kanailal and she saw the victim
with Kanailal and informed the said fact to her husband, who
assaulted the victim for the said reason. She further denied the
suggestion that the victim committed suicide and the accused was
implicated in the case falsely.
P.W.3, Md. Monir Hossain stated in his deposition that the
police made inquest of the dead body and prepared inquest report
and he put his signature thereon. This witness identified his
signature in the inquest report as Exhibit-2/2. The police seized some
alamats in his presence and prepared seizure list and he put his
signature thereon. This witness identified the seizure list and his
signature therein as Exhibits-3 and 3/1 respectively.
During cross-examination he stated that he did not read the
seizure list and post mortem report before putting his signatures
therein.
=9=
P.W.4, Abdul Matin Farazi deposed that he put his signatures
in the seizure list and the inquest report. This witness identified his
signature in the inquest report and the seizure list as Exhibits-2/3
and 3/2 respectively.
During cross-examination he stated that he did not know
anything about the occurrence.
P.W.5, Dr. Azharul Islam, stated in his deposition that on
03.10.2007 while he was posted as Medical Officer at Chandpur Sadar
Hospital held autopsy upon the cadaver of victim Sanchita Rani and
gave the following opinion:
“Death in my opinion was due to asphyxia, shock and internal
hemorrhage resulting from strangulation which was ante
mortem and homicidal in nature.”
This witness identified the post mortem report and his
signature therein as Exhibits-4 and 4/1 respectively.
During cross-examination he stated that internal hemorrhage
may cause without injury. The injuries were caused 24-36 hours back.
He denied the defense-suggestion that he prepared the post mortem
report being influenced by the prosecution.
P.W.6, Doyal Baidya stated in his deposition that on 02.10.2007
at about 09:00 a.m. hearing about the illness of the victim went to the
house of the accused-appellant and found the dead body inside. He
came to know that the accused persons murdered the victim for the
demand of dowry. He found the victim’s saree wrapped around her
=10=
throat. The accused persons fled away leaving the dead body
unattended.
During cross-examination he stated that the father of the victim
first knew about illness of victim over phone. He stated further that
the victim had no love affair with Kanailal. He denied the defense-
suggestion that he did not go to the place of occurrence and the
victim had love affair with Kanailal. He further denied the suggestion
that he deposed falsely.
P.W.7, Md. Shajahan Miah, Sub-Inspector of Police and the
Investigating Officer stated in his deposition that during
investigation he visited the place of occurrence and recorded the
statements of witnesses under Section 161 of the Code of Criminal
Procedure and prepared the sketch map and index and also prepared
the inquest report of the cadaver of victim. He sent the dead body of
the victim to the morgue for autopsy. He identified the sketch map,
index and his signatures therein as Exhibits-5, 5/1, 6, 6/1
respectively. He also identified his signature in the inquest report as
Exhibits-2/4. He also seized some alamats including a saree and
prepared the seizure list. This witness identified the said seizure list
and his signature therein as Exhibits-7, 7/1 respectively. He
identified the alamats as material Exhibits I-III. After investigation he
submitted charge sheet against the accused persons.
=11=
During cross-examination he stated that he untied the knot of
saree on the throat of the dead body of victim and found no sign of
hanging. He denied the defense-suggestion that it was a case of
suicide or that he submitted a false report implicating the accused
persons in this case.
These are the witnesses adduced by the prosecution. Out of
seven witnesses P.W.1 is the informant and father of the victim
Sanchita Rani, P.W.2 is the mother of the victim, P.Ws.3 & 4 are the
witnesses of inquest report, P.W.5 is the doctor performing autopsy
of the dead body while P.W.7 is the Investigating Officer and P.W.6 is
the local witness.
It is undisputed that the dead body of the victim Sanchita Rani
was found in the house of the convict-appellant. P.W.1 stated in his
deposition that he found the dead body of the victim in the house of
the convict-appellant. P.W.1 identified his signature in the inquest
report as Exhibit-2/1. P.W.2 stated in her deposition that he saw the
dead body of the victim in the house of the convict-appellant. P.W.3
is one of the witnesses to the inquest report and he identified his
signature in the inquest report as Exhibit-2/2. P.W.4 also identified
his signature in the inquest report as Exhibit-2/3. P.W.6 deposed that
he saw the victim’s dead body in the house of the convict-appellant.
P.W.7 is the Investigating Officer, who prepared the inquest report of
=12=
the victim and he identified the inquest report and his signature
therein as Exhibits-2 and 2/4 respectively.
Now let us examine the post mortem report of the dead body of
victim. P.W.5 is the Doctor, who conducted autopsy upon the
cadaver of the victim and he identified the post mortem report and
his signature therein as Exhibits-4 and 4/1 respectively. P.W.5 gave
the following opinion in the post mortem report:
“Death in my opinion was due to asphyxia, shock and internal
hemorrhage resulting from strangulation which was ante
mortem and homicidal in nature.”
At this juncture, it is congenial to know the difference between
a death due to hanging and strangulation. The differences between
hanging and strangulation is well described in world-acclaimed book
titled ‘Modi’s Medical Jurisprudence and Toxicology’, 23rd edition at
page 583-584 which is extracted under-
“The differences between hanging and strangulation are
given below in tabulated form:
Hanging Strangulation
1 Mostly suicidal. 1 Mostly homicidal.
2 Face Usually pale and
petechiae rare.
2 Face Congested, livid
and marked with
petechiae.
3 Saliva Dribbling out
of the mouth down on
the chin and chest.
3 Saliva No such
dribbling.
4 Neck Stretched and 4 Neck Not so.
=13=
elongated in fresh
bodies.
5 External signs of
asphyxia, usually not
well marked.
5 External signs of
asphyxia, very well
marked (minimal if
death due to vasovagal
and carotid sinus
effect).
6 Bleeding from the nose,
mouth and ears very
rare.
6 Bleeding from the nose
and ears may be found.
7. Ligature mark
Oblique, non-
continuous placed up
in the neck between the
chin and the larynx, the
base of the groove or
furrow hard, yellow
and parchment-like.
7 Ligature mark
Horizontal or transverse
continuous, round the
neck, low down in the
neck below the thyroid,
the base of the groove
or furrow being soft and
reddish.
8 Abrasions and
ecchymoses round
about the edges of the
of the ligature mark,
rare.
8 Abrasions and
ecchymoses round
about the edges of the
ligature mark, common.
9 Subcutaneous tissues
under the mark
White, hard and
glistening.
9 Subcutaneous tissues
under the mark
Ecchymosed.
10 Injury to the muscles of
the neck Rare.
10 Injury to the muscles of
the neck Common.
11 Carotid arteries, 11 Carotid arteries,
=14=
internal coats ruptured
in violent cases of a
long drop.
internal coats ordinarily
ruptured.
12 Fracture of the larynx
and trachea Very rare
and that too in judicial
hanging.
12 Fracture of the larynx
and trachea Often
found also hyoid bone.
13 Fracture-dislocation of
the cervical vertebrae
Common in judicial
hanging.
13 Fracture-dislocation of
the cervical vertebrae
Rare.
14 Scratches, abrasions
and bruises on the face,
neck and other parts of
the body
Usually not present.
14 Scratches, abrasions
fingernail marks and
bruises on the face,
neck and other parts of
the body Usually
present.
15 No evidence of sexual
assault.
15 Sometimes evidence of
sexual assault.
16 Emphysematous bullae
on the surface of the
lungs Not present.
16 Emphysematous bullae
on the surface of the
lungs May be
present.
In view of the above it is transparent that in case of hanging
ligature mark is seen oblique, non-continuous placed up in the neck
between the chin and the larynx while in case of strangulation the
ligature mark is seen horizontal or transverse. In the inquest report
(Exhibit-2) P.W.7, S.I. Md. Shahjahan Mia stated that while untying
=15=
the knot of saree he found a horizontal ligature mark on the neck of
the victim from which it is clear that the death was caused by
strangulation.
The inquest report states that a long blood stain was found on
the upper part of the left thigh of the victim which bears the
testimony of homicidal strangulation. Since in homicidal
strangulation bleeding from the nose and ears may be found.
Again, in case of strangulation the tongue of the victim usually
comes out of the mouth, but P.W.1 stated in his cross-examination
that he saw the tongue of the victim out of her mouth which is a sign
of homicidal strangulation. Furthermore, in hanging saliva is found
dribbling out of the mouth of the victim down on the chin and chest
while in case of strangulation no saliva was found dribbling. In the
case in hand, the inquest report did not mention about the dribbling
of saliva out of the mouth of victim for which it can be termed as the
case of homicidal death by strangulation.
In the Post Mortem Report the following injuries were found:
“One ecchymosis over the mid abdomen size 6”x 4”. One
swelling over the both parietal region in the head size 3”x2”.
One almost circular ligature mark high up of the neck.”
Such injuries clearly indicate the case of strangulation inasmuch as in
case of strangulation scratches, abrasions fingernail marks and
bruises on the face, neck and other parts of the body remain usually
present.
=16=
In view of the discussion made above, we are led to the
conclusion that the victim was killed by strangulation by the convict-
appellant. It is evident from the record of the case that on the relevant
date and time of occurrence the victim was under the custody of her
husband, the convict-appellant and as such he cannot escape his
liability of killing the victim.
It is evident from the record that the P.Ws.1-7 corroborated
each other supporting the prosecution case. All P.Ws. had been cross-
examined by the defence elaborately but nothing could be elicited to
shake their credibility in any manner whatsoever. The Tribunal on
correct appreciation of the evidences on record convicted the convict-
appellant and the High Court Division also lawfully upheld the
conviction of the appellant and as such we do not find any
perversion in the impugned judgment and order of the High Court
Division.
However, on going through the impugned judgment and order
of the High Court Division it appears that the High Court Division
altered the conviction of the convict-appellant one under Section
11(Ka) of Nari-O-Shishu Ain to the one under Section 302 of the Penal
Code on the observation that the prosecution had not been able to
prove the allegation against the convict-appellant of demanding
dowry from the victim. We endorse the aforesaid observation of the
High Court Division as well and as such the said observation does
=17=
call for interference by this Division since there is no satisfactory
evidence available on the record against the convict-appellant about
demanding of dowry from the victim.
Now a pertinent question arises whether the High Court
Division has the jurisdiction to convert the conviction of an accused
under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302
of the Penal Code. The said issue has already been fairly settled by
this Division in the case of State vs. Nurul Amin Baitha reported in 75
DLR(AD)187. The relevant portion of the case is extracted below:
“17. In order to convict a person under minor offence,
though charged under major offence, the ingredients
constituting the offence under the minor offence should
be common as that of the ingredients constituting major
offence and to convict him, some of the ingredients of the
major offence could be absent. Since the offence under
Sections 11(Ka)/30 of the Ain is a graver offence wherein
the charge as to killing of the wife has been framed along
with charge of demanding dowry than that of the case
under Section 302/34 where the charge of killing of any
person is usually be brought against accused, we are of
the view that the alternation of charge from 11(Ka) of the
Ain to Section 302 of the Penal Code will not cause
prejudice to the accused.
18. The interest of justice should be the ultimate goal in
the use of this power. In Thakur Shah V. Emperor AIR 1943
PC 192; the Privy Council said, “The alteration or
addition is always, of course, subject to the limitation that
=18=
no course should be taken by reason of which the accused
may be prejudiced either because he is not fully aware of
the charge made or is not given full opportunity of
meeting it and putting forward any defence open to him
on the charge finally preferred.” The purpose behind
providing Courts with the right to alter charges is to
avoid a miscarriage of justice.
19. Joint trial of different offences under different
enactments does not vitiate proceedings in the absence of
prejudice to the accused, particularly when the special
enactment authorizes the Court to try different offences
jointly where a charge is framed for one offence, but
offence committed is found to be some other than the one
charged, provided, the same facts can sustain a charge for
the latter offence, the accused can be convicted for such
an offence. Even if the facts proved are slightly different
from those alleged in the charge, a conviction based on
the facts proved would be legal.
20. The Appellate Court’s jurisdiction is co-extensive with
that of the trial Court in the matter of assessment,
appraisal and appreciation of the evidence and also to
determine the disputed issues.
21. The High Court Division has a wide appellate
jurisdiction over all Courts and Tribunals in Bangladesh
inasmuch as it may, in its discretion, from any judgment
and order of conviction and sentence passed by any
Court of Sessions and Tribunal. When the Tribunal is
empowered to try a case as Tribunal as well as Court of
Sessions, we are of the view that it could not be without
jurisdiction in view of the facts and circumstances of the
=19=
particular case to conform the judgment and order of
conviction under Section 11(Ka) converting or altering
charge to one under Section 302 of the Penal Code. The
technicalities must not be allowed to stand in the way of
importing justice. It is observed that depending on the
facts and circumstances of a particular case in the larger
interest of justice the Court may overlook a mere
irregularity or a trivial breach in the observance of any
procedural law for doing real and substantial justice to
the parties and the Court may pass any appropriate order
which will serve the interest of justice best. Procedure has
always been viewed as the handmaid of justice and not
meant to hamper the cause of justice or sanctify
miscarriage of justice. It is intended to achieve the ends of
justice and normally, not to shut the doors of justice for
the parties at the very threshold.
22. Accordingly, we find substances in the submission of
the learned Attorney General that the finding of this
Division that High Court Division is not authorized to
convert the conviction under Sections 11(Ka)/30 of the
Ain into one under Sections 302/34 of the Penal Code is
not correct view, hence such observation is liable to be
reviewed.
23. Our final conclusion is that the High Court Division as
an Appellate Court has the jurisdiction to convert the
conviction under Section 11(Ka)/30 of the Ain to one
under Sections 302/34 of the Penal Code as appeal is the
continuation of an original case. An Appellate Court has
the same power as that of the trial Court i.e. the Tribunal
and therefore, as an Appellate Court the High Court
=20=
Division in the present case is competent to convert the
conviction to secure the ends of justice. Undoubtedly such
an Act of the High Court Division shall in no way
prejudice the accused and State; otherwise order of
remand shall entail unnecessary time, money and energy
due to fruitless or useless prosecution and defence.
Similarly, the Tribunal which is created under the Ain
shall be deemed to be the Court of Sessions of original
jurisdiction and, is entitled to alter/amend the charge
framed under Section 11(Ka) of the Ain to one under
Section 302 of the Penal Code and to dispose of the case
finally in accordance with law if the accused is not
otherwise prejudiced.”
(underlines supplied by us)
The settled proposition of law as evident from the above is that
the High Court Division as an appellate Court is entitled to alter or
amend the charge framed against the accused under Section 11(Ka) of
Nari-O-Shishu Ain to one under Section 302 of the Penal Code and to
dispose of the case finally in accordance with law since the appellate
Court has the same power as that of the trial Court and the case is not
required to be sent to the Court of competent jurisdiction for holding
trial afresh. In the case in hand, although the High Court Division
upheld the conviction of the convict-appellant passed by the Tribunal
but altered the sentence under 11(Ka) of Nari-O-Shishu Ain to one
under Section 302 of the Penal Code, 1860 and in doing so the High
Court Division did not commit any illegality. Since the offence under
=21=
Section 11(Ka) of Nari-O-Shishu Ain wherein the charge as to killing
of the wife along with charge of demanding dowry framed against
the convict-appellant is a graver offence than that of the charge under
Section 302 of the Penal Code for committing murder of the victim
and, as such, we are of the view that the alteration of charge against
the convict-appellant from Section 11(Ka) of Nari-O-Shishu Ain to
Section 302 of the Penal Code will not cause prejudice to him.
In the result, the instant Criminal Appeal preferred by the
convict-appellant is dismissed without any order as to costs.
The conviction and sentence of life imprisonment awarded to
the appellant by the High Court Division is maintained. However,
the convict-appellant will get the benefit of Section 35A of the Code
of Criminal Procedure in calculation of his sentence and other
remissions as admissible under the Jail Code.
C.J.
J.
J.
J.
J.
The 03rd day of January, 2024
RRO; Total words-4,782
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.399 OF 2019
(From the judgment and decree dated 16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008)
Md. Dabir Uddin ……..….Appellant
-Versus-
Md. Moniruddin and others .…..….Respondents
For the appellant
: Mr. Sharif Uddin Chaklader, Advocate,
instructed by Mr. Md. Zahirul Islam,
Advocate-on-Record.
For respondents
No.1-2
: Mr. Md. Mozibur Rahman, Advocate-on-
Record.
For respondents
No.3-4
: Not represented.
Date of hearing and
judgment
: The 05th day of March, 2024
JUDGMENT
Obaidul Hassan,C.J. This Civil Appeal by leave granting order
dated 06.05.2019 in Civil Petition for Leave to Appeal No.2780 of 2015
is directed against the judgment and decree dated 16.07.2014 passed
by the High Court Division in Civil Revision No.1603 of 2008
discharging the Rule and thereby affirming the judgment and decree
dated 16.05.2007 passed by the learned Joint District Judge, 2nd Court,
Manikganj in Title Appeal No.26 of 2007 allowing the appeal while
setting aside the judgment and decree dated 10.01.2007 passed by the
Court of learned Senior Assistant Judge, Sadar Upazilla, Manikganj
in Title Suit No.130 of 2005 decreeing the suit.
=2=
The relevant facts necessary for the disposal of this Civil
Appeal are that the appellant herein as plaintiff instituted the Title
Suit No.130 of 2005 in the Court of Senior Assistant Judge, Sadar
Upazilla, Manikganj for specific performance of contract. The
averment of the plaint are, in a nutshell, that the land described in the
schedule to the plaint was acquired by the defendants through
purchase and heba-bil-ewaj from their father. The plaintiff being
separated from his family purchased 59 decimals land and got
possession therein. The plaintiff went abroad and from there he sent
remaining Tk.5,000.00(five thousand) and also money for registration
costs to the defendants. But the defendants committed breach of trust
and it was disclosed later that the deed was obtained in the name of
the plaintiff and the defendants. After returning from abroad the
plaintiff asked the defendants about the matter and they again took
Tk.2,00,000.00(two lac) for the purpose of kabala, but the defendants
did not purchase the land in the name of the plaintiff and
misappropriated the money. As a result, the plaintiff filed a criminal
case against the defendants. Before that the plaintiff also gave
Tk.1,00,000.00(one lac) to the defendant No.1 for his daughter’s
marriage ceremony and in this way the defendants misappropriated
a sum of Tk.3,00,000.00(three lac) from the plaintiff. The local Public
Prosecutor Advocate Azad Hossain tried to negotiate between the
plaintiff and the defendants and there was an ‘aposhnama’ on
14.10.2003. On the basis of that ‘aposhnama’ there was another sitting
=3=
on 18.10.2003 wherein it was agreed that the cases pending between
the parties would be withdrawn and thereafter, the defendants
would execute and register the kabala in favour of the plaintiff in
respect of the land described in schedule ‘Ka’ and ‘Kha’ to the plaint.
A deed was also written in respect of ‘Ka’ and ‘Kha’ schedule land in
absence of the defendant No.3. The Public Prosecutor took the
responsibility of taking signature of the defendant No.3 on the deed
who was absent at that time. As per terms and condition of the
‘aposhnama’ the plaintiff also executed a deed in favour of the
defendants in respect of the homestead measuring an area of 11
decimals and the aforesaid deeds along with ‘aposhnama’ was under
the custody of the Public Prosecutor. The defendants violated the
terms and conditions of ‘aposhnama’ and made a conspiracy to
deprive the plaintiff from getting the land in pursuant to ‘aposhnama’.
Thereafter, the plaintiff instituted the present suit for getting the
kabala registered through Court.
The defendants No.1-2–respondents No.1-2 contested the suit
by filing a written statement denying the averments made in the
plaint and contended, inter alia, that with the negotiation of Mr. Azad
Hossain, the Public Prosecutor and Advocate Anwar Hossain a
sitting was held on 14.10.2003 wherein an ‘aposhnama’ was executed.
In the said ‘aposhnama’ there was a condition between plaintiff and
the defendants that after fulfillment of the conditions they would
mutually withdraw their cases at their own responsibility and would
=4=
execute a deed in favor of the plaintiff in respect of ‘Ka’ schedule
land and in respect of 32 decimals land described in ‘Kha’ schedule.
The defendant No.3 was agreed to execute and register a deed in
favor of the plaintiff while the plaintiff was agreed to execute and
register a deed in respect of his 11 decimals of land. But the
defendant No.3 did not execute the ‘aposhnama’ by putting his
signature therein and the plaintiff also failed to comply with the
condition of the ‘aposhnama’ and he did not execute any deed in
respect of his 11 decimals land in favor of the defendants. The
plaintiff also did not withdraw the cases filed by him and thereby the
terms and conditions of the compromise had not been fulfilled. In
fact, there was no payment of consideration for the deed in respect of
any land and there was no valid contract for sale between the parties
and it was a mere talk of exchange, but the plaintiff filed the suit on
false averments which was afterthought and filed only with a view to
obtain unlawful gain by harassing the defendants. Hence, the suit is
liable to be dismissed.
The trial Court framed four issues during the trial of the suit.
The plaintiff and the defendants No.1-2 examined four witnesses
each. The documentary evidences adduced by the plaintiff had been
marked as Exhibits-1 series to 2 while those adduced by the
defendants No.1-2 had been marked as Exhibits-A series.
The trial Court on completion of the trial decreed the suit by
judgment and decree dated 10.01.2007. Being aggrieved by the
=5=
judgment of the trial Court the defendants No.1-2 preferred Title
Appeal No.26 of 2007 before the learned District Judge, Manikganj
which was eventually transferred to the learned Joint District Judge,
2nd Court, Manikganj for trial. Upon hearing the learned Joint District
Judge, 2nd Court, Manikganj vide judgment and decree dated
16.05.2007 allowed the appeal.
Challenging the judgment and decree dated 16.05.2007 passed
by the appellate Court below the plaintiff filed Civil Revision
No.1603 of 2008 before the High Court Division. Upon final hearing
the High Court Division was pleased to discharge the Rule vide
judgment and decree dated 16.07.2014.
Being disgruntled with the judgment and decree dated
16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008 the plaintiff as petitioner filed Civil Petition for
Leave to Appeal No.2780 of 2015 before this Division and hence the
instant appeal.
Mr. Sharif Uddin Chaklader, learned Counsel appearing on
behalf of the appellant taking us through the judgment and decree
dated 16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008, judgment and decree of the appellate Court below
and the trial Court as well as the other materials on record contends
that the High Court Division has committed illegality in totally
misconceiving the case of the appellant upon misreading and
misconstruing the evidence and materials on record and thereby
=6=
misdirected beyond the law and facts of the case in passing the
erroneous decision discharging the Rule which caused serious
miscarriage of justice and as such the impugned judgment and decree
is liable to be set aside. The learned Counsel for the appellant
contends next that P.Ws.3 & 4 categorically stated that possession of
the suit land was delivered to the plaintiff on the next day, but the
High Court Division failed to appreciate the evidence of record and
as such the impugned judgment is liable to be set aside. The learned
Counsel for the appellant argues next that the sale deed as well as the
compromise deed are in possession of the local elites including local
Public Prosecutor Azad Hossain Khan, who are biased with the
defendants, and despite the order of the learned Senior Assistant
Judge he did not produce the deeds and in such position, the plaintiff
has no option but to pray for getting the land by registration of kabala.
The learned Counsel for appellant submits further that the appellate
Court below as well as the High Court Division totally overlooked
the role of learned Public Prosecutor, Azad Hossain Khan and it is on
record that he admitted in a proceeding before the ADM that he is in
possession of the concerned deeds as such the appellate Court below
ought to have compelled him to produce the deeds including the
kabala to arrive at a definite finding over the dispute, in absence of
which the decision arrived at by the appellate Court below and
affirmed by the High Court Division is made totally on surmise. The
learned Counsel for the appellant argues next that the appellate
=7=
Court below as well as the High Court Division did not discuss and
assess each and every findings of the trial Court with reasonable
grounds which is required under the Code of Civil Procedure and as
such the appellate Court below as well as the High Court Division
committed error of law occasioning failure of justice. Therefore, the
impugned judgment and decree passed by the High Court Division is
liable to interfered with by this division.
In opposition, Mr. Mozibur Rahman, learned Advocate-on-
Record appearing on behalf of the respondents No.1&2 contends that
admittedly the plaintiff and the defendants No.1-3 are the full
brothers and there were series of criminal cases and counter cases
among them and hence the local Public Prosecutor Advocate Azad
Hossain Khan tried to negotiate between the plaintiff and the
defendants and there was an ‘aposhnama’ on 14.10.2003. On the basis
of that ‘aposhnama’ there was 2nd sitting on 18.10.2003 and there was a
talk in that sitting that the cases pending between the parties would
be withdrawn and thereafter, the defendants would execute and
register the kabala in favor of the plaintiff in respect of the land
described in the schedule ‘Ka’ and ‘Kha’ to the plaintiff. Accordingly,
a sale deed was written in respect of ‘Ka’ and ‘Kha’ schedule land in
absence of the defendant No.3. Learned Public Prosecutor took the
responsibility of taking signature of the absent defendant No.3 on the
deed. As per terms and conditions of the ‘aposhnama’ another sale
deed was also written and signed by the plaintiff in favor of the
=8=
defendants in respect of his homestead measuring an area of 11
decimals and the aforesaid two deeds along with the ‘aposhnama’
were under the custody of the learned Public Prosecutor.
Subsequently, both the parties failed to comply with the terms and
conditions of the ‘aposhnama’ and they did not withdraw any case
amicably and hence the learned Public Prosecutor, Advocate Azad
Hossain Khan did not proceed with the said ‘aposhnama’ and
consequently the aforesaid two written sale deeds were not
registered and as such the suit instituted by the plaintiff for getting
kabala registered through Court is quite absurd and not tenable in the
eye of law and as such the instant appeal is liable to be dismissed for
the ends of justice. The learned Advocate-on-Record argues next that
the suit of the plaintiff is for specific performance of contract which is
not maintainable since in view of the pleadings of the parties there is
no valid contract for sale between the parties and admittedly there
was no payment of consideration. As per provisions of Section 54 of
the Transfer of Property Act sale is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised. But in the instant case it is evident that under the ambit of
the said Section it is not at all a sale and it cannot be treated as sale
and this legal aspect was rightly considered by the learned Judge of
the appellate Court below as well as by the High Court Division and
as such the impugned judgment and decree is not liable to be
interfered with by this Court. The learned Counsel for the
=9=
respondents No.1&2 submits next that in the instant case ‘aposhnama’
which was executed between the parties was such a nature that non-
compliance of the condition of that ‘aposhnama’ will make the same
revocable and it is apparent from the evidence and admission of the
parties that the conditions of the said ‘aposhnama’ were not fulfilled
and accordingly it was impliedly revoked. Since as per section 21 of
the Specific Relief Act the contract which is in its nature revocable
cannot be specifically enforced and in view of the aforesaid aspects
the learned appellate Court below as well as the High Court Division
legally decided that the original suit is not maintainable and as such
the impugned judgment and decree is quite justified. The learned
Counsel for the respondents No.1&2 contends lastly that as per
provisions of Sections 12, 21 and 22 of the Specific Relief Act, the
original suit for specific performance of contract is barred. In reality,
there was no contract for sale between the parties and in view of the
aforesaid aspects, the appellate Court below as well as the High
Court Division legally decided that the suit is not maintainable and
there is no tangible evidence in favor of the plaintiff to prove the
specific performance of contract and there is no illegality or
irregularity and no misreading and non-reading of evidence and non-
consideration of material facts resulting in an error in the decision
occasioning failure of justice and as such the impugned judgment
and decree does not call for interference by this division.
=10=
We have perused the judgment and decree dated 16.07.2014
passed by the High Court Division in Civil Revision No.1603 of 2008.
We have also considered the submissions of the learned Counsel for
both sides and gone through the judgment and decree of the
appellate Court below and the trial Court, evidences as well as other
materials on record.
Admittedly, on 14.10.2003 an unregistered ‘aposhnama’ was
executed between the plaintiff and defendants. In the said
‘aposhnama’ there was a condition between plaintiff and the
defendants that after fulfillment of the conditions they would
mutually withdraw their cases at their own responsibility and the
defendants would execute a deed in favor of the plaintiff in respect of
‘Ka’ and ‘Kha’ schedule land while the plaintiff would execute a deed
in favor of the defendants in respect of homestead measuring 11
decimals. The main contention between both the parties is that
whether due to non-fulfillment of terms and conditions of said
‘aposhnama’ the plaintiff is entitled to get the decree of specific
performance of contract on the basis of said ‘aposhnama’.
The plaintiff claims that subsequent to ‘aposhnama’ the
defendants No.1-3 written two sale deeds in favour of the plaintiff on
18.10.2003, however, although the defendants No.1-2 put their
signatures in the deeds, the defendant No.3 did not put his signature
therein. The plaintiff filed the photocopies of the said deeds which
were marked as Exhibits-1 series. Now let us examine whether as per
=11=
the terms and conditions of ‘aposhnama’ dated 14.10.2003 the cases
pending between the parties were withdrawn or not.
P.W.1 stated in his cross-examination that-
It is evinced from the above that both the plaintiff and
defendants did not withdraw criminal cases filed against each other
and as such no compromise was made between the parties. Since the
terms and conditions described in the ‘aposhnama’ dated 14.10.2003
regarding the withdrawal of criminal cases had not been fulfilled the
said ‘aposhnama’ was impliedly revoked. In the premises made above,
the plaintiff cannot get relief on the strength of ‘aposhnama’ dated
14.10.2003.
It divulges from the record that referring the unregistered sale
deeds (Exhibits-1 series) the plaintiff claims that the defendants
executed those deeds in pursuant to ‘aposhnama’, but those deeds
were not registered by the defendants, therefore, the plaintiff prays
for specific performance of contract.
In this regard, it is pertinent to discuss Section 54 of the
Transfer of Property Act, 1882 which is stated below:
54. “Sale” is a transfer of ownership in exchange for
a price paid or promised or part-paid and part-
promised.
=12=
Such transfer, in the case of tangible immoveable
property or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such
person as he directs, in possession of the property.
(underlines supplied by us)
Thus, a sale is a transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised. But in the case in
hand no pecuniary consideration was dealt with between the parties
and as such the transaction in question cannot be termed as sale.
Moreover, as it has already been found that due to non-compliance of
the terms and conditions of ‘aposhnama’ dated 14.10.2003 there is no
scope to claim right and title over the suit land by virtue of the
alleged unregistered sale deeds.
In view of the discussions made above as well as the legal
provisions as stated above, we hold that the plaintiff is not entitled to
get a decree of specific performance of contract, but the trial Court
without proper appraisal of the oral as well as documentary evidence
available on the record and the proposition of law decreed the suit.
The appellate Court below lawfully set aside the judgment and
decree of the trial Court and the High Court Division on proper
scrutiny of the record affirmed the judgment of the appellate Court
below. We do not find any deviation in the impugned judgment and
decree of the High Court Division.
=13=
In view of the reasons stated above and in the light of the above
discussions, it does not warrant interference with the impugned
judgment and decree dated 16.07.2014 passed by the High Court
Division in Civil Revision No.1603 of 2008. Therefore, we do not find
any merit in the submissions of the learned Counsel for the appellant
and as such the instant Civil Appeal is liable to be dismissed.
Consequently, the instant Civil Appeal is dismissed without
any order as to costs.
C.J.
J.
J.
J.
The 05th day of March, 2024
RRO; Total words- 3112
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IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 456 OF 2017
(Arising out of C.P. No. 895 of 2017)
Bangladesh Tailbahi Jahaj Malik
Samity, represented by its President
.... Appellant
-Versus-
Chairman, Bangladesh Inland Water
Transport Authority (BIWTA) and others
....Respondents
For the Appellant : Mr. Kamal-ul-Alam, Senior Advocate
with Ms. Shahanaj Akhter, Advocate
instructed by Mr . Zainul Abedin,
Advocate-on-Record
For Respondent No. 1 : Mr. A.M. Amin Uddin, Senior
Advocate with Mr. Md. Obaidu r
Rahman Mo stafa, Advocate, Ms.
Sabrina Zerin, Advocate and Mr.
Md. Abdul Quiyum, Ad vocate
instructed by Mr. Mohammad Abdul
Hai, Advocate-on-Record
Respondent Nos.2-5
Not represented
Date of Hearing : 18.10.2023 and 15.11.2023
Date of Judgment : 23.11.2023
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 22.08.2016, passed
by the High Court Division in Civil Revision No. 1575 of
2006 making the Rule absolute. 2
Facts, in short, are that the present appellant along
with respondent No.2, as plaintiffs instituted Title Suit
No. 199 of 2001 before the 1st Court of Assistant Judge,
Dhaka, praying for declaration that the application of
Conservancy and Pilotage Service Fees Rules , 1990 over
the C ostal Ships and Tankers of the plaintiffs
established under the Merchants Shipping Ordinance, 1983
is illegal and also for declaration that the letters
dated 17.06.2001 and 25.6.2001 and circular vide letter
No. M- 2/15/47(4) are illegal and unlawful.
The trial Court dismissed the suit. Against which
appeal was preferred and the same was allowed by setting
aside the judgment and decree of the trial Court.
Challenging the said decision the defendants filed Civil
Revision before the High Court Division and o btained
Rule. A Single Bench of the High Court Division made the
Rule absolute upon setting aside the judgment and decree
of the appellate Court and affirming those of the trial
Court. Hence , the plaintiff No. 1 preferred civil 3
petition for leave to appeal before this division and
obtained leave giving rise to this appeal.
Mr. Kamal -ul-Alam, the learned Senior Advocate
appearing for the appellant submits that the High
Division committed an error of law in passing the
impugned judgment and order holding tha t having not been
vested with any right to declare any law void the court
of appeal below erred in declaring the imposition of
conservancy fees under Section 3 of the
-
, ১৯৯০ (hereinafter referred to as Bi dhimala,
1990) as illegal.
Next h e submits that the conservancy fees are
leviable only on
as defined in Bidhimala, 1990
and payable by the
of
registered under the
provision o f the said Bidhimala, 1990 and as such the
demands made in the impugned notices for payment of
conservancy fees from the members of the plaintiffs’
samity(Association) whose tankers and coasting ships ply
in the river ways which are not
but are 4
coasting Ships as defi ned and whose “ownerships” are
registered under the provisions of Merchant Shipping
Ordinance, 1983. Without considering the aforesaid
provisions of law the High Court Division erred in law in
abruptly passing the impugned Judgment and order.
He further submi ts that the members of the
plaintiffs’ samity(Association) are the owners of
ships/tankers as defined in Section 2(47) and “coasting
ship” as defined in section 2(4) of the Merchant Shipping
Ordinance, 1983 which are not
as defined in
of Bidhimala, 1990 read with Section -2(e) and (f) of
the Inland shipping Ordinance, 1976 and the members of
plaintiffs’ samity(Association) are the
/owner of the
said vessels as defined in Section-2(26) and the same are
registered under Section 14 and 26 of the Merchant
Shipping O rdinance, 1983, consequently the High Court
Division was wrong in law in not holding that the said
tankers and coasting ships of the members of plaintiffs’
samity(Association) not being
as defined in
5
of Bidhimala, 1990 the conservancy fee is not payable
by the members of plaintiffs’ samity(Association).
On the other hand Mr. A.M. Amin Uddin, the learned
Senior Advocate appearing for the respondent No. 1 made
his submissions supporting th e impugned judgment and
order of the High Court Division.
We have heard the learned Advocates of both sides and
perused the impugned judgment and order of the High Court
Division together with the decisions of the courts below.
It is admitted that the ships or the vessels owned by
the members of the plaintiff s’ Association are mainly
ship and vessel in the coastal area but they have to
transport petroleum fuel and other goods within the
Inland River Way . And the Bangladesh Inland Water
Transport Authority (BIWTA) is authorized for imposition
fees upon the costal and Oil Tanker which are running or
transporting within the Inland Water Ways under the
provision of Bidhimala, 1990 which was enacted in
pursuant to Bangladesh Inland Water Transport Authority 6
Ordinance, 1958 . The relevant provisions of the said
Bidhimala are produced verbatim as under:-
“ , , ৪২৮- ই /৯০/
/ -২/৯০- Bangladesh Inland Water
Transport Authority Ordinance, 1958 (E.P. Ord. LXXV of
1958)
section 19 sub-section (3) [ section (2) clause
(VII)
(Ord. No. LXXII of
1976)
(self-propelled vessel)”
Pertinently, let us see the definition of Inland Ship
as envisaged in the Inland Shipping Ordinance(Ordinance
No.LXXII of 1976). Section 2(e) defines Inland Ship. It
enjoins the definition which is worded as under:
“2(e) “inland ship” means every description of vessel
ordinarily plying on inland waters and propelled wholly 7
or in part by steam, liquid fuel, electricity or any
other mechanical powers and includes a sailing boat, dumb
barge and other craft whic h is not so propelled but is
towed or pushed by a vessel so propelled.”
Combined reading of both the impugned Bidhimala 1990
and the Ordinance 1976 justify the imposition of
conservancy fees as aforesaid.
Now, let us further evaluate the entire case on the
appraisal of the imposition of the conservancy fees under
the Bidhimala 1990.
The learned Advocate for the appellant claims that
imposition any conservancy fees by Bidhimala, 1990 shall
be double jeopardy for the members of the ir association
because the y have to bear taxes for the Coastal
Authorities as well as Inland Authorities. But it reveals
that the coastal authorities and the Inland River
Authorities are different jurisdictions with different
types of services, therefore, as per Bidhimala, 1990 any
imposition cannot be declared illegal or without lawful
authority unless or until Bidhimala is declared illegal.
8
The appellate court below came to a conclusion that
any civil court can entertain any matter where
interpretation in respect of law to be declared illegal,
even the constitutional provision , within the frame work
of Order XXVIIA Rules 1 and 2 of the Code of Civil
Procedure which reads as follows:-
“R.1. In any suit in which it appears to the court
that any substantial question as to the interpretation of
constitutional law is involved, the court shall not
proceed to determine that question until after notice has
been given to the Attorney General for Bangladesh if the
question of law concerns the Government***.”
The findings of the appellate Co urt below banking on
Order XXVIIA Rules 1 and 2 as mentioned above leads to
absurdity, simply because the said law enjoins that where
any substantial question as to the interpretation of
constitutional law is involved, the C ourt shall not
proceed to determine that question until after notice has
been given to the Attorney General for Bangladesh. To our
utter surprise it reveals that the Appellate Court below
even did not act accordingly. The findings of the High
Court Division on that score is well founded. When the 9
lower appellate Court took notice of Order XXVIIA of the
Code of Civil Procedure, it could easily notify the
Attorney General of Bangladesh in terms of the said
provision of the Code of Civil Procedure.
To sum up, first of all, we endorse the vi ew of the
High Court Division that the imposition of fees in
question is not a double jeopardy. Rather it is
absolutely justified.
In the context of adjudicating such a case before
this Division where the crucial question of balancing
commercial interests and environmental stewardship
between parties as well as that of the river is
concerned, we grapple with the question of imposing
conservancy fees on sea -going oil tankers that traverse
inland waters and utilize rivers to access the open sea
via estuaries. The ship-owners, in their defense, contend
that they fall outside the category of vessels
exclusively navigating inland rivers. They further argue
that imposing such fees would amount to double jeopardy
and inflict undue hardship upon them. However, a cl oser 10
examination reveals compelling reasons for rationalizing
these fees.
In rationalizing the imposition of conservancy fees
on sea -going oil tankers navigating inland waters and
rivers, despite ship -owners' arguments of exemption and
double jeopardy, several points can be asserted. Firstly,
the definition of a river includes any watercourse
naturally flowing towards a sea, estuary, or lake. Sea -
going vessels utilizing these riverways for navigation
inherently fall within the purview of vessels using
inland waters. Thus, they are subject to relevant fees
aimed at maintaining the navigability and health of these
watercourses. Secondly, while ship -owners may contend
that such fees constitute double jeopardy, it must be
underscored that the purpose of conser vancy fees is
distinct from other maritime charges. These fees
specifically contribute to the upkeep and preservation of
inland waterways, which are crucial for maritime commerce
and environmental sustainability. Therefore, the
imposition of conservancy fe es is not duplicative but
rather serves a distinct regulatory purpose. Moreover, 11
the argument that sea -going vessels are not directly
benefiting from inland waterways neglects the
interconnectedness of maritime transportation networks.
Even if primarily bo und for the sea, these vessels rely
on riverways for access to ports and estuaries, thereby
benefiting from the infrastructure and maintenance funded
by conservancy fees. Lastly, acknowledging the
significant government expenditure required to maintain
river health and navigability underscores the necessity
of equitable contributions from all users, including sea -
going vessels. In conclusion, the imposition of
conservancy fees on sea -going oil tankers navigating
inland waters is justifiable both legally and
practically, ensuring the sustainable management of vital
maritime resources for the benefit of all stakeholders.
It is to be understood by all stakeholders that the
conservancy fees are not punitive measures but rather
investments in sustainable river management. Ship-owners,
as beneficiaries of efficient river navigation, play an
essential role in safeguarding these vital waterways. By
recognizing the interconnectedness of rivers, estuaries, 12
and the open sea, we can uphold both economic interests
and environmental well-being.
The case in hand is indeed of such an impact which as
we have discussed above manifestly maintained that the
High Court Division was absolutely justified in holding
that the Court of appeal below committed an error of law
by allowi ng the appeal and thereby declaring the
imposition of conservancy fees by section 3 of the
Bidhimala, 1990 illegal and hence cannot be gainsaid that
there is a denial of justice in any manner. The judgment
and order passed by the High Court Division is elaborate,
speaking and well composed. We are not inclined to
interfere with the same.
Accordingly, the appeal is dismissed without any
order as to costs.
J.
J.
J.
J.
J.
J.
The 23rd November,2023
/Nayeem Firoz, RRO & Ismail,B.O./*2085*
|
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH
APPELLATE DIVISION
PPRREESSEENNTT::
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.49 OF 2020
(From the judgme nt and order dated 20.07.2016 passed by
this Division in Civil Appeal No.107 of 2011).
Government of Bangladesh, represented by
the Secretary, Ministry of Law, Justice
and Parliamentary Affairs, Bangladesh
Secretariat, Dhaka and others.
:
...Appellants.
-Versus-
Abdur Rahman Bhuiyan and others. : ...Respondents.
For the Appellants.
: Mr. Mehedi Hasan Chowdhury,
Additional Attorney General with Mr.
Md. Mujibor Rahman, Assistant
Attorney General instructed by Mr.
Haridas Paul, Advocate-on-Record.
For the Respondents.
: Mr. M. Qumrul Hoque Siddique, Senior
Advocate instructed by M r. M d.
Zahirul Islam, Advocate-on-Record.
Date of Hearing. : The 28th November, 2023 and 07th February, 2024.
Date of Judgment. : The 07th February, 2024.
J U D G M E N T
Borhanuddin,J: This appeal by leave is directed against the
judgment and order dated 20.07.2016 passed by th is
Division in Civil Appeal No.107 of 2011 arising out of a
judgment and order dated 17.08.2009 passed by the High
Court Division in Writ Petition No.1773 of 2008 making
the Rule absolute with direction. 2
Facts, in brief, are that the writ-petitioners
joined service as Extra Mohorars in different Sub -
Registrar offices and thereafter they were promoted to
the post of TC Mohorars; Despite such promotion their pay
has been reduced at the lowest level in the scale; They
have already completed 15 to 20 years of service in the
registration department an d entitled to get higher pay
after promotion; If higher pay is not allowed, then their
previously fixed pay must be protected and allowed to be
drawn; Regarding the reduction of their scale they have
given a list in the writ petition showing how drastically
their pay scale has been reduced; Pay of an incumbent can
be reduced if he is found guilty of any offen ce after a
full fledged inquiry as a m easure of punishment but the
pay already drawn by them has been reduced at a lower
level though they have not committed any offence ; They
have been treated unjustly by arbitrary executive action;
In similar situation, other persons previously have been
allowed higher pay after promotion; There is thus
discrimination in the treatment of the writ -petitioners
who are standing on the same footing. 3
Their further case is that in the registration
department, the post of TC Mohorar and the Mohorar are in
the same scale with same status; On the other hand , the
TC Assistant and the Assistant are on the same footing
with same status; The writ -respondents have counted
previous service of the Mohorars and Assistants with all
future service benefits including pensionery benefits but
they deny same benefits to the TC Mohorars and TC
Assistants which is arbitrary and mala fide; Under the
Constitutional provisions the action of writ-respondents
is inequitable and discriminatory; The writ -petitioners
have been promoted from the feeder post for which they
are entitled to get benefits of their previous service in
the feeder post; The inaction and denial of the writ -
respondents to recognize the pay scale and status of the
writ-petitioners are i llegal, malafide, without backing
of law, inasmuch as, it is against all norms of fairness
and justice; The Government has promulgated many laws for
counting previous service of the personnel of development
projects, ad -hoc appointees, Mujibnagar employees etc.
and pursuant to the said provisions of laws, those 4
classes of employees are getting their benefit of
previous service record; The writ -petitioners who have
been working for a long time as TC Mohorars and TC
Assistants against substantive posts are entitled to get
similar benefits; Because of the inaction of the writ-
respondents the writ-petitioners should not suffer; Under
the provisions of the Service (Reorganization and
Condition) Act, 19 75, the writ -petitioners are entitled
to united grades and pay of scale, equal p ay and other
benefits of service.
Being aggrieved by and dissatisfied with the inaction
and failure of the writ-respondents to protect the pay of
the writ -petitioners in the present post s and counting
their previous service in the post of TC Mohorars and TC
Assistants, the writ -petitioners filed the writ petition
before the High Court Division and obtained a Rule Nisi.
The writ-respondent no.4 contested the Rule by filing
an affidavit -in-opposition, contending interalia, that
the writ-petitioners are not Government employees and are
not getting any salary from revenue budget and therefore,
they are not entitl ed to get any scale of pay; Their 5
claim is absolutely contradictory and getting salaries as
per their post s; The treatment of the wri t-petitioners
cannot be taken as ‘hostile discrimination and double
standard’ inasmuch as they are not Government servant and
no pick and choose policy has been adopted; Since the
writ-petitioners are not the Government servants, they
are not entitled to g et any benefit/privilege under the
circular dated 23.09.1996; In the case of Nurul Islam and
another vs. the Secretary, reported in 46 DLR (AD) 188 ,
this Court opined that the TC Mohorars are paid with
fixed pay from a special fund of the Inspector General of
Registration (IGR) and as per the said decision the writ -
petitioners are not Government servant and thus Rule 42
of the Bangladesh Service Rules, Part-1 is not applicable
to them; Since the post of TC Mohorars are not Government
post, they are not enti tled to claim benefits like the
Government servants.
Upon hearing the parties the High Court Division made
the Rule absolute with direction vide judgment and order
dated 17.08.2009. 6
Having aggrieved, the writ-respondents as petitioners
preferred Civil Peti tion for Leave to Appeal No. 88 of
2010. This Division by the order dated 03.01.2011 granted
leave in the said civil petition resulting in Civil
Appeal No.107 of 2011.
This Division upon hearing the appeal by the judgment
and order dated 20.07.2016 dismissed the appeal.
Feeling aggrieved, the writ -respondents as
petitioners preferred Civil Review Petition No.436 of
2019 before this Division and obtained leave granting
order on 23.01.2020 considering the following grounds:
“I. Because the High Court Division erred in law
in not finding that the writ petition in the
nature of mandamus itself was not
maintainable as there was no Government
order impugned in the writ petition claiming
to have reduced the pay and grade of the
writ-petitioners nor there appears any
representation to the Government ventilating
their alleged grievance of inaction before
filing of the writ petition and in absence
of those vital legal ingredients the
judgment passed by the High Court Division
cannot be enforced and this Court without
considering the above aspect of the case 7
dismissed the appeal as such the impugned
judgment and order may kindly be reviewed.
II. Because the High Court Division erred in law
in passing the impugned judgment by filing
to consider that the Registration Manual ,
2014 comes under the definition of law as
defined in Article 152 of the Constitution
of Bangladesh and is recognized as a law by
this Division in 46 DLR (AD) 188 (Para 161 )
and since pursuant to paragraph 307 of
Chapter XXVI of the Registration
Establishment of the Registration Manual
2014, the service of the writ -petitioner-
respondents as TC Mohorars are only to
collect Local Government Taxes and their pay
allowances are borne by the IGR (Inspection
General of Registration) fund, a fund
created from Loca l Government Tax to meet
the service charge of such tax collecting
staff and as such TC Mohorars do not belong
to the permanent clerical establishment of
the office as stipulated in Paragraph 305 of
the Registration Establishment of the
Registration Manual, 2014 and hence there is
no scope to consider the service of the
writ-petitioner-respondents are not under
the revenue budget, rather their service is
absolutely Non -Government service, and in
that view of the matter, the respondents TC
Mohorars are not entitled to benefits as the
Government servants and this Division
without considering the above aspect of the
law dismissed the appeal and as such the 8
impugned judgment and order may kindly be
reviewed.
III. Because the High Court Division erred in law
in passing the impugned judgment and order
in failing to consider that since the
respondents TC Mohorars are not Government
servants and therefore, TC Mohorars are not
Government servants and therefore, the Rule
42 of the Bangladesh Service Rules , Part-1
is no t applicable to them and therefore,
they are not entitled to get benefits of
Government servants and hence there is no
scope to direct the appellant -petitioner to
protect the pay of the writ -petitioner-
respondents and to count their previous
service in cou nting their pension benefits
from the date of their initial appointment
as TC Mohorars and this Division without
considering the above aspect of the law
dismissed the appeal and as such the
impugned judgment and order may kindly be
reviewed.
IV. Because the High Court Division erred in law
in not taking into its consideration the
circular dated 04.12.2000 which was issued
by the writ-petitioner no.4 in compliance
with the judgment passed by the this
Division in Civil Petition for Leave to
Appeal No.532 of 1 992, reported in 46 DLR
(AD) 188 ( Para 1 & 11), outlining the
procedure of promotion of TC Mohorars to TC
Assistants where it has been poin ted out
that the post of TC Mohorars and TC
Assistant cannot be termed as permanent and 9
this Division without considering the above
aspect of the case dismissed the appeal and
as such the impugned judgment and order may
kindly be reviewed.”
Consequently, instant civil appeal arose.
Mr. Mehedi Hasan Chowdhury , learned Additional
Attorney General appearing for the appellan ts summaries
his argument in line with the leave granting order.
On the other hand Mr. M. Qumrul Hoque Siddique ,
learned Advocate appearing for the respondents in support
of the impugned judgment and order dated 20.07.201 6
submits that the grounds of revie w are addressed
elaborately by this Division in the impugned judgment and
order and as such the appeal is liable to be dismissed.
Article 105 of the Constitution confers jurisdiction
on the Appellate Division to exercise power of review. It
reads as follows:
“105: The Appellate Division shall have
power, subject to the provisions of any Act
of Parliament and of any Rules ma de by that
Division to review any judgment pronounce d
or order made by it.” 10
Rules have been made known as the Supreme Court of
Bangladesh (Appellate Division) Rules, 1988. Order XXVI
of the said Rules, deals with review and it reads as
follows:
PART IV
ORDER XXVI
REVIEW
1. Subject to the law and the practice of
the Court, the Court may, either of its own
motion or on the application of a party to a
proceeding, review its judgment or order in
a Civil proceeding on grounds similar to
those mentioned in Order XLVII, rule 1 of
the Code of Civil Procedure and in a
Criminal proceeding on the ground of an
error apparent on the face of the record.
Rule 2 -9 of this order contains procedure
regarding filing of an application for
review.
Thus, a perusal of the same would show that the
jurisdiction of this Court, to entertain a review
petition in a civil matter, is patterned on the power of
the Court under Order XLVII Rule 1 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the CPC, for
short). Order XLVII Rule 1 of the CPC, reads as follows:
REVIEW
1.(1) Any person considering himself aggrieved- 11
(a) by a decree or order from which an
appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no
appeal is allowed,
or
(c) by a decision on a reference from a
Court of Small Causes,
and who, from the discovery of new and
important matter or evidence wh ich, after
the exercise of due diligence, was not
within his knowledge or could not be
produced by him at the time when the decree
was passed or order made, or on account of
some mistake or error apparent on the face
of the record, or for any other suffici ent
reason, desires to obtain a review of the
decree passed or order made against him, may
apply for a review of judgment to the Court
which passed the decree or made the order.
(2) A party who is not appealing from a
decree or order may apply for a review of
judgment notwithstanding the pendency of an
appeal by some other party except where the
ground of such appeal is common to the
applicant and the appellant, or when, being
respondent, he can present to the Appellate
Court the case on which he applies fo r the
review.
It is settled law that the power of review cannot be
confused with appellate power which enables a superior
Court to correct all errors committed by a subordinate 12
Court. It is not rehearing of an original matter. A
repetition of old and overruled argument is not enough to
reopen concluded adjudication. The power of review can be
exercised with extreme care, caution and circumspection
and only in exceptional cases.
Main contention of the appellant s is that the TC
Mohorars are not Government s ervant and as such they
cannot claim any benefit like Government servant. Let us
see the findings of the impugned judgment and order dated
20.07.2016 passed by this Division in Civil Appeal No.107
of 2011 where this Division after elaborately discussing
Bengal Statue 1781, Bengal Regulation No.1793, Act of
1964, Act of 1865, Act of 1871, Act of 1877 and Act 16 of
1908, Act of 1964 and different provision of Registration
Manual, 2014 arrived at a finding:
“It is surprising to note here that from the
above, it is found Clauses (A) to (B) that the
provisions relating to the appointment,
disciplinary actions against the 3 rd and 4th
class employees are also proposed by the
inspecting officers. Last Clause (C) is
relevant which relates to the appointment ,
transfer, promotion, inquiry and their claim
of future fund and withdrawals to be made by 13
TC employees. This clause finds a reference
about the TC employees. However from the
above remark we notice that the appointment,
transfer, promotion and inquiry relating to
their service conditions are being regulated
by certain unwritten guidelines. As observed
above, though there is no Rule or Regulation
covering the field, this provision suggests
that this Department is being run following
conventions at least since 1908, in which
year, the Registration Act came into force.
Paragraph 291 Ka empowers the Inspectors to
report to the IGR regarding the
irregularities or mal administration by the
District Registrars relating to the
appointment, transfer or other related
matters of third and fourth class employees.
Paragraph 295 provides the guidelines given
to the Inspectors and District Registrars at
the time of inspection of the registration
offices.
One of the guidelines is to examine the
attendance of permanent Mohrars and
additional scribes/provisional copyists.
Possibly this is for the purpose of checking
as to whether the copyists and permanent
Mohrars are being paid in excess of the
rates etc. Nothing has been stipulated
regarding the TC Mohrars, TC Assistants,
Head Assist ants or Assistants in this
paragraph. Paragraph 305 provides that the
permanent clerical posts and Mohrars are
Government paid employees and their salaries
are compiled in form 2432. The bills for 14
clerks and Mohrars who are employed with the
registration officers are signed by the said
officers. So, from this paragraph it is seen
that the permanent clerks and Mohrars are
treated as Government employees.” (Sic)
This Division upon perusing documents annexed to the
writ petition arrived at a finding that TC Mohorars are
promoted from Extra Mohorars. The relevant findings runs
as under:
“On an evaluation of these provisions it
reveals that the appoi ntment, posting,
promotion of T C Mohrars cannot be made by
the Registrars whimsically. The appointments
have to be made in accordance with the
guidelines being given by the IGR from time
to time. Though TC Mohrars are holding
equivalent post of permanent Mohrars they
are not included in office clerk
establishment. However, TC Mohrars are
promoted from amongst the list of Extra
Mohrars. Learned Attorney General has
admitted this fact in course of hearing. We
find no logic behind the explanation given
in Paragraph 307 that the se TC Mohrars
should not be treated as office clerks of
Sub-Registrar or Registrar though they h old
the similar status of permanent Mohrars and
both permanent Mohrars and TC Mohrars are
promoted from the post of Extra Mohrar. On
perusal of the manual we find no provision
providing the procedure for appointment of
TC Mohrars directly.” (Sic) 15
This Div ision also discussed how the TC Mohorars
collecting Government revenue . Relevant portion of the
findings is quoted below:
“Though Paragraph 307 says that one Office
Assistant and two permanent Mohrars shall
compose of the office of the registrar, it
is not clear from the manual whether TC
Mohrars are utilized to perform the works of
office clerks in the registration office.
But taking consideration of the voluminous
works being transacted in every registration
offices, it cannot be denied that these TC
Mohrars are also performing the clerical
works similar to that of Office Assistants,
although their specific business is to
collect taxes. The registration department
is providing more than ten thousand crore
taka in the Government exchequer. Out of the
said a mount a portion i s used for the
payment of salaries to tax collectors of the
local Government department . These tax
collectors are employed in the City
Corporations and Pourashavas and therefore
they are employees of autonomous bodies, and
it is informed t hat they are enjoying the
new National Pay Scale of Serial No.14 and
15. There is clear statement in Paragraph
307 that the job of TC Mohrar is for
collecting Government revenue. It is
specifically stated that ‘¯’vbxq miKv‡ii Ki Av`vqKvwi
Kg©Pvix‡`i e¨q wgUvevi wbwg‡Ë '-----’ so, they are also
collecting revenue for the local Government
employees.” 16
(Sic)
When convention becomes law and how it happens in the
present case also discussed in the impugned judgment and
order. Relevant paragraphs are quoted below:
“The collection of revenue from the citizens
at the time of registration of deed s is a
tax and there cannot be any doubt in this
regard. Article 83 of the Constitution
provides that no tax shall be levied or
collected except by or under the authority
of an Act of Parliament. So the tax proposed
to be levied must be within the legislative
competence of the l egislature imposing the
tax. This article provides not only ‘levy’
but also collection of ‘tax’ which must be
under the authority of law.
If the executive authority is authorized to
collect a tax without sanction of law of
invalid law, the court is entitled to
interfere with such collection in view of
Article 83 but the TC Mohrars have been
collecting taxes for over fifty years and if
the statements in the Manual are taken to be
true, it is a convention being followed for
such a long time, this convention may be
taken as law.-------------------------------
-------------------------------------------
We are conscious that no tax or levy can be
collected without any authority of law even
then we are compelled to hold that without
baking of any law, such tax is being 17
realised for a long time and none has taken
any exception in the process of collecting
such tax . Now, if we declare such
realisation as one whi ch ultravires Article
83 of the Constitution, serious deadlock
will be created in the payment of salaries
to the tax collectors of the Local
Government and TC Mohrars. Therefore, we
declare such realisation as valid one on the
doctrine of necessity with a view to avoid
chaos and confusion. In this connection we
may profitably rely on the definition of
‘law’ defined in Article 152. ‘Law’ means
any Act, Ordinance, Order, Rule, Regulation,
bye-law, notification for other legal
instrument and any custom or usag e, having
the force of law in Bangladesh.
So, a custom or usage which is being
followed by a section of people for years
together has a force of law and may be
enforceable in a court of law. Similarly
when a ‘convention’ exists, and the
Government as well as tax payer is following
it as binding, then such convention would be
enforceable as law.”
(Sic)
Discussing all the aspects , this Division
categorically arrived at a finding that the TC Mohorars
are Government employees. Relevant finding is as under:
“Therefore, the collection of this fees/tax
from the taxpayers by the TC Mohrars though
not on the strength of an Act of Parliament, 18
it being a convention being followed over
fifty years by administrative orders o r
circulars has the force of law. If an
employee collects tax or revenue by an Act
of Parliament and if he is paid out of such
collection, under no stretch of imagination
such employee can be termed as Non -
Government employee, otherwise the amount of
tax collected by such employee will be
illegal as per Constitution. There is thus ,
I find no substance in the argument of the
learned Attorney General that the se TC
Mohrars are not Government employees.”
(Sic)
Discussing the facts and circumstances of the case in
hand and the case reported in 46 DLR (AD) 188, this
Division conclusively arrived at a finding that the
judgment reported in 46 DLR (AD) 188, has no relevancy in
determining the point of law involved in this matter,
relevant portion are reproduced hereinunder:
“Learned Attorney General has referr ed to
the case of Nurul Islam v. the Secretary,
Ministry of Law, 46 DLR (AD) 188. In that
case, the writ -petitioners challenged the
action of the Government which sanctioned
the circular of the IGR to fill up 475 posts
of permanent Mohrars in the different
offices of Sub -Registrar from among the
posts of Extra Mohrars. The writ petition
was filed on behalf of the TC Mohrars 19
organization namely TC Karmac hari Samity.
The High Court Div ision discharged the Rule
against which the Samity moved this Court.
This Court noticed that the scale of Mohrars
of and TC Mohrars being same ‘the
petitioners are not affected by the impugned
order of the Government. ’ This judgment has
not relevance in determining the point of
law involved in this matter.”
(Sic)
From the leave granting order based on which present
appeals arose, it is clear that the appellants in other
way round challenged the point of law which ha s been
negatived by this Division in the impugned judgment and
order.
It is to be mentioned here that the respondents-writ-
petitioners invoked writ jurisdiction under Article 102
of the Constitution to protect their rights as Government
employees and against hostile and discriminatory action
of the appellant-writ respondents as such writ petition
is very much maintainable.
In the case of Sow Chandra Kante and another vs.
Sheikh Habib, reported in (1975) 1 SCC 674, the Indian
Supreme Court held: 20
“A review of a judgment is a serious step
and reluctant resort to it is proper only
where a glaring omission or patent mistake
or like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient.”
It is well settled that a party is not entitled to seek
a review of a judgment delivered by this Division merely for
the purpose of a rehearing and a fresh decision of the case.
The normal principle is that a judgment pronounced b y this
Division is final, and departure from that principle is
justified only when circumstances of a substantial and
compelling character make it necessary to do so. (Sajjan
Singh vs. State of Rajasthan, reported in AIR 1965 SC 845.)
Accordingly, the civil appeal is dismissed.
However, no order as to costs.
J.
J.
J.
J.
J.
The 07th February, 2024.
Jamal/B.R./Words*-----*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan
-Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.155 OF 2015.
(From the judgment and order dated 09.02.2014 and
10.02.2014 passed by the High Court Division in Writ
Petition No.4715 of 2013).
Deputy General Manager , Janata Bank
Limited, Foreign Exchange Corporate
Branch, Regional Office, Zone -A, CDA
Annex Building, Chittagong.
: .....Appellant.
-Versus-
Sampriti Chakma, Proprietor of M/S
Sampriti Enterprise, represented by its
Constituted Attorney Abdullah -Al Mamun
and others.
: ....Respondents.
For the Appellant. : Mr. S.M. Atikur Rahman, Advocate
instructed by Mrs. Nahid Sultana,
Advocate-on-Record.
For Respondent No.1. : Mr. Shamim Khaled Ahmed , Senior
Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For Respondent Nos.2-11. : Not represented.
Date of Hearing. : The 16th & 17th January, 2024.
Date of Judgment. : The 17th January, 2024.
J U D G M E N T
Borhanuddin,J: This civil appeal by leave is directed
against the judgment and order dated 09.02.2014 and
10.02.2014 passed by the High Court Division in Writ
Petition No. 4715 of 2013 making the Rule absolute. 2
Facts r elevant are that respondent no. 1 herein as
petitioner preferred the writ petition invoking Article
102 of the Constitution before the High Court Division
praying for a declaration that charging commission on
bank guarantee against 100 % cash margin in violation of
Circular Nos.1750 and 3797 dated 23.05.1992 and
02.07.2005 respectively is illegal and without lawful
authority and also seeking direction upon the writ -
respondent no.11 , Branch Manager, Janata Bank L imited,
Foreign Exchange Division, Chittagong, to stop charging
commission on bank guarantee with 100 % cash margin,
contending interalia, that the writ -petitioner Sampriti
Chakma, an indigenous hillman from the Hill District -
Khagrachari, participated in th e tender floated by the
Director of Food for supply boiled and non -boiled rice
and being the lowest bidder obtained the work order;
After supplying the rice in phases he submitted the bill
against each consignment of supply; Being indigenous
hillman, he wa s certified to get deduction of advance
income tax but the Director of Food did not deduct; Then
the writ -petitioner approached the National Board of
Revenue (hereinafter referred to as ‘the NBR’) which 3
allowed deduction under Rule 16 of the Income Tax Rul es,
1984 but subsequently, the NBR vide letter dated
29.12.1994 stated that although the indigenous hillman is
exempted f rom payment of advance income tax but the
business enterprise of the writ -petitioner was not a n
indigenous entity and as such the exemption under Rule 16
of the Income Tax Rules, 1984 is not applicable; Feeling
aggrieved by the said letter , the writ -petitioner
preferred two Writ Petition being Nos.207 of 1995 and 809
of 1995 and obtained Rule Nisi separately; In Writ
Petition No.207 of 1995 the High Court Division passed an
ad-interim order directing the writ-petitioner to furnish
bank guarantee against the amount of advance income tax;
Pursuant to said ad-interim order, the writ-petitioner
deposited FDRs and made l ien of those FDRs infavo ur of
the writ-respondent no.11 and thereby furnished as many
as 25(twenty five) bank guarantees issued by the writ-
respondent no.10 , Janata Bank Limited, Chittagong ,
infavour of the writ -respondent no.4, Commissioner of
Taxes, Taxes Zone-3, Agrabad, Chittagong and all the bank
guarantees are lying with the writ-respondent no.4. 4
Upon hearing the parties, the High Court Division
discharged those Rules.
Having aggrieved, the writ -petitioner preferred two
unsuccessful Civil Petition for Leave to Appeal being
Nos.1445 of 1998 and 1446 of 1998 in this Division.
After final assessment done by the concerned Deputy
Commissioner of Taxes ( hereinafter referred to as ‘the
DCT’) the writ-petitioner paid all the taxes and obtained
‘Tax Liability Certificate’ up to the assessment year
2000-2001 from the DCT concerned; Despite payment of the
income tax as per assessment order made by the DCT
concerned, the Director of Food in an attempt to collect
advance income tax asked the Janata Bank Limited to allow
encashment of the b ank guarantees infavour of the Food
Department; Challenging the said attempt, the writ -
petitioner filed Writ Petition No.3429 of 2013 for
releasing the bank guarantees; The writ-petitioner filed
instant Writ Petition No.4715 of 2013 for a declaration
that the charging commission on bank guarantee for which
FDRs are deposited and made lien infavour of the writ -
respondent no.11, are tentamounts to 100 % cash margin 5
against the bank guarantee s and vide Circular No.1750
dated 23.05.1992, the service charge is Tk .200/- only as
the bank guarantees are secured by 100% cash margin and
there is no other condition to charge commission on such
bank guarantee s; But the writ -respondent no.11 claimed
commission at the rate of 0.50 % on the entire amount of
the bank guarante e in violation of said circular which
compelled the writ-petitioner to serve demand justice
notice upon the writ -respondents but without any
response; Finding no other efficacious remedy, the writ-
petitioner preferred instant writ petiti on for a
declaration that charging commission at the rate of 0.50%
on the entire amount of bank guarantee s is illegal and
without lawful authority.
Upon hearing the writ-petitioner, a Division Bench of
the High Court Division issued a Rule Nisi upon the writ-
respondents to show cause.
Writ-respondent nos.1 and 2 contested the Rule by
filing an affidavit -in-opposition, contending inter alia,
that the Taxes Department claimed that the writ -
petitioner’s business enterprise not being indigenous 6
hillman entity, the exemption under Rule 16 of the Income
Tax Rules, 1984 is not applicable to the enterprise owned
by the writ -petitioner; The writ -petitioner being lowest
bidder obtained work order for supplying boiled and non-
boiled rice to the Director of Food and accordingly,
supplied the rice in phases and submitted bill against
each consignment of supply; The writ -petitioner tried to
avoid deduction of advance income tax under Section 52 of
the Income Tax Ordinance, 1984 read with Rule 16 of the
Income Tax Rules, 1984 and approached t he NBR for
exemption of advance income tax which although
erroneously exempted earlier but later on the NBR
cancelled the said order; The writ -petitioner submitted
income tax return under normal procedure for the
assessment year 1995 -1996 and 1996 -1997 disc losing his
business income and the Assessing Officer assessed total
income of the writ -petitioner on the basis of the return
submitted and the writ -petitioner paid the tax liability
accordingly upon which the taxes department issued
clearance certificate f or the assessment years 1995 -1996
up to 2000 -2001; The Director of Food passed the order
for forfeiting the deposited bank guarantees and 7
directing the bank concerned to encash the same for
collecting advance income tax justly and legally.
The writ -respondent no. 10, Janata Bank Limited ,
submitted affidavit-in-opposition stating that the writ
petitioner and the guarantors are the clients of the
Janata Bank ; The writ -petitioner imported rice taking
help from Janata Bank under the quota of Chittagong Hill
Trucks; The customs authority and the food department
claimed 3 % Advance Income Tax (AIT) at the time of
releasing the imported goods; The writ-petitioner earlier
filed Writ Petition Nos. 207 of 1995 and 809 of 1995
praying for exemption from the imposition of advance
income tax; The High C ourt Division directed the writ -
petitioner to furnish bank guarantees instead of cash to
cover the amount of advance income tax ; T he writ -
petitioner was unable to provide any cash margin or co -
lateral security and only deposited FDR’s infavour of the
writ-respondent no.10 and made lien of those FDR’s to the
bank; Those FDR’s since issued from the respondent no.10
bank, the writ -petitioner has been receiving interest
from those FDRs; The bank has adjusted their commission
from the interest of the FDR ’s to be paid to the writ - 8
petitioner; The rate of commission of the bank guarantee
is quarterly 0.50% and respondent no.10, bank deducted
the same pursuant to the Circular No.3797 and the terms
and conditions as stipulated in the san ction letter,
where the rate of commission is fixed ; The writ -
petitioner is lawfully bound to pay such commission as
the writ -petitioner accepted the rate of commission at
the time of furnishing bank guarantees; Therefore, the
bank is entitle to get commis sion on the bank guarantee s
pursuant to the circular and sanction letter and the Rule
is liable to be discharged.
After contested hearing, a Division Bench of the High
Court Division made the Rule absolute by the impugned
judgment and order.
Having aggriev ed, the writ -respondent no.10 as
petitioner preferred civil petition for leave to appeal
before this Division invoking Article 103 of the
Constitution and obtained leave granting order.
Consequently, instant civil appeal arose.
Mr. S. M. Atikur Rahman, le arned Advocate appearing
for the appellant submits that the High Court Division 9
erred in law in not holding that the bank has realized
the commission of the bank guarantee at the rate of 0.50%
pursuant to the Circular No.3797 as well as the terms and
conditions as stipulated in the sanction letter and as
such the findings of the High Court Division regarding
deduction of commission on the FDR’s is liable to be set -
aside. He further submits that the Circular No.1750 dated
23.05.1992 re -affirming the Circular No.1667 dated
04.12.1990 categorically provided fixed commission of
Tk.200/- when the bank guarantee is secured by 100 % cash
margin and in all other cases deduction of commission at
the rate of 0.50 % and as such the impugned judgment and
order regarding imposition of commission is liable to be
set-aside.
On the other hand, Mr. Shamim Khaled Ahmed, learned
advocate appearing for the respondent no. 1 in support of
the impugned judgment and order submits that pursuant to
the ad-interim order passed in Writ Pet ition No.207 of
1995 the writ-petitioner deposited FDR’s and made lien of
those FDR’s as security for the purpose of obtaining bank
guarantee and those FDR ’s are equivalent to cash margin
inasmuch as in default of payment for the secured amount, 10
the bank can encash the said FDR’s at any time. He prays
to dismiss the appeal.
Heard learned Advocate for the respective parties.
Perused the impugned judgment and order alongwith
papers/documents contained in the paper book.
From the record it transpires that as p er the ad -
interim order passed by the High Court Di vision in the
writ Petition No. 207 of 1995, the writ petitioner
deposited FDR’s and made lien of those FDR ’s infavour of
the Janata bank as security o f bank gu arantees and the
Janata bank after complying n ecessary formalities issued
sanction letter infavour of writ petitioner for providing
bank guarantees vide letter dated 15.07.1995, which is as
under:
RbZv e¨vsK
AvÂwjK Kvh©vjq, ‡Rvb-G
PUªMÖvg
m~Ît bs--------337/16/95 ZvwiLt 15/07/95Bs
e¨ve¯’vcK,
RbZv e¨vsK,
ˆe‡`wkK wewbgq kvLv,
PUªMÖvg|
welqt- †gmvm© m¤úªxwZ G›Uvi cÖvBR Gi c‡ÿ cwiPvjK (msMÖn) Lv`¨ Awa`ßi, XvKv Gi
AbyK~‡j 1,56,12,500/ - (GK †KvwU Qvàvbœ jÿ evi nvRvi cvuPkZ) UvKvi e¨vsK M ¨vivw›U
Bmy¨i NU‡bvËi Aby‡gv`b cÖ`vb cÖm‡½|
Dc‡iv³ wel‡q Avcbv‡`i 26 -6-95Bs Zvwi‡Li AvR‡PŠ/‰ewe/wewR -23/95 bs c‡Îi Av‡e`b
Ges mycvwi‡ki ‡cÖwÿ‡Z †gmvm© m¤úªxwZ G›Uvi cÖvBR Gi c‡ÿ cwiPvjK (msMÖn) Lv`¨
Awa`ßi, XvKv Gi AbyK~‡j wb¤œwjwLZ kZ© †gvZv‡eK D‡jøwLZ 1,56,12,500/- (GK †KvwU
Qvàvbœ jÿ evi nvRvi cvuPkZ) UvKvi M¨vivw›U ----- Bmy¨i NUv‡bvËi Aby‡gv`b cÖ`vb Kiv
nBjt- 11
1| g‡°‡ji bvg t- †gmvm© m¤úªxwZ G›Uvi cÖvBR
2| wewbwdwmqvixi bvg t- cwiPvjK (msMÖn) Lv`¨ Awa`ßi, XvKv
3| M¨vivw›Ui cÖK…wZ t- e¨vsK M¨vivw›U
4| M¨viw›Ui g~j¨ t- 1, 56, 12, 500/-(GK †KvwU Qvcvbœ jÿ evi nvRvi cvuPkZ) UvKv
5| M¨vivw›Ui †gqv` t- Dchy³
6| Kwgkb t- ‰ÎgvwmK 0.50% nv‡i
7| gvwR©b t- 100% (¯’vqx AvgvbZ AvKv‡i)
8| we‡kl kZ© t- mgy`q my`mn ¯’vqx AvgvbZwU e¨vs‡Ki wbKU wj‡qb _vwK‡e|
Avcbvi wek^¯Í
¯^vÿi A¯úó
(gvneyeyj Avjg)
On perusal of the referred sanction letter it appears
that the Janata bank issued said letter infavour of the
business enterprise of the writ petitioner wherein it was
mentioned that the comm ission of the bank guarantee is
quarterly 0.50% when secured by 100% margin.
The sanction letter dated 15.07.1995 was issu ed
pursuant to the Circular No. 1750 dated 23.05.1992. For
proper appraisal, said circular is reproduced below:
RbZv e¨vsK
cÖavb Kvhv©jq
110, gwZwSj evwbwR¨K GjvKv
XvKv|
240027-30
‡dvb ---------------
240042-45
MÖvg ÔRbZv e¨vsKÕ
wc I e· bs-468
Z_¨ weÁwß bs-1750 ‡Rbv‡ij e¨vswKs wWwfkb
mKj Dc-gnve¨e¯’vcK/mnKvix gnve¨e¯’vcK
wefvMxq Kvhv©jq/Gwiqv Awdm/AvÂwjK Kvhv©jq/
K‡cv©‡iU kvLvmg~n/¯’vbxq Kvhv©jq,
mKj kvLv e¨e¯’vcK,
RbZv e¨vsK,
evsjv‡`k|
ZvwiL: 09-02-99 evs
23-05-92 Bs
welq: Af¨šÍixY †jb‡`‡bi †ÿ‡Î e¨vsK PvR© I Kwgk‡bi nvi cybt wbav©ib|
g‡nv`q,
Dc‡iv³ we l‡q 04/12/90 Bs Zvwi‡L 1667 b¤^i Z_¨ weÁwßi cÖwZ
mK‡ji `„wó AvKl©Y Kiv hvB‡Z‡Q| 12
evsjv‡`k e¨vs‡Ki 12-03-90Bs Zvwi‡Li 3 b¤^i wewmwW mvKz©jv‡ii wb‡`©k
†gvZv‡eK KZ…©c‡ÿi Aby‡gv`bµ‡g e¨vsKmg~‡ni byZb cwiewZ©Z nv‡ii ZvwjKv
GZrm‡½ mshy³ Kiv nBj| Bnv AbwZwej‡¤^ Kv h©Kix nB‡e| cÖm½Z D‡jøL¨ †h,
GKB ai‡bi †mevi Rb¨ MÖvnK‡`i wbKU nB‡Z GKB nv‡i PvR© Av`vq Kwi‡Z nB‡e
Ges †Kvb cÖKvi ˆelg¨ Kiv Pwj‡e bv| byZb cÖewZ©Z PvR©mg~‡ni ZvwjKv †bvwUk
†evW© wKsev kvLvi ¸iæZ¡c~Y© ¯’v‡b ¯’vcbc~e©K h_vh_ cÖPv‡ii e¨e¯’v Kwi‡Z nB‡e|
AbyMÖnc~e©K cÖvwß ¯^xKvi Kwi‡eb|
Avcbvi wek^¯Í
(‡gvt e`iæ‡ÏvRv)
Dc-gnve¨e¯’vcK |
(iwdKzj Kwig †PŠayix)
gnve¨e¯’vcK |
Abywjwc:
mKj Dc-gnve¨e¯’vcK,
mKj mnKvix gnve¨e¯’vcK,
mKj wefvMxq/kvLv cÖavb, cÖavb Kvhv©jq,
mKj gnve¨e¯’vc‡Ki e¨w³MZ mnKvixe„›`,
Dc-e¨e¯’vcbv cwiPvjK mv‡n‡ei GKvšÍ mwPe,
e¨e¯’vcbv cwiPvjK mv‡n‡ei GKvšÍ mwPe|
Again, the relevant portion of the chart attached
with the Circular No. 1750 dated 23.05.1992 which dealt
with the rate of commission of the bank guarantee runs as
follows:
MªvnK‡K †`Iqv wewfbœ †mevi Rb¨ e¨vsK KZ©…K Av`vq‡hvM¨ PvR© mg~n
µwgK
bs
Kv‡Ri
aiY
Av`vq‡hvM¨ PvR© Gi
cªK„wZ
bZyb cwiewZ©Z nvi/ Av`vq‡hvM¨
nvi
8
M¨vivw›U
(Af¨šÍixb)
Kwgkb
cªwZ wZb gvm A_ev Dnvi
fMœvs‡ki Rb¨ $ 0.75% nv‡i|
me©wbgœ $ 200/-, 100%
M¨vivw›U gvwR©b cª`vb Kwi‡j
ïaygvÎ mvwf©m PvR© $ 200/-
Av`vq‡hvM¨|
From th e plain reading of Circular No. 1750 dated
23.05.1992 alongwith the chart attached with said
circular it appears that when bank guarantee issued by
the concerned bank, the commission of said bank guarantee
shall be 0.75% of the guaranteed amount if the security
of said guarantee is other than cash margin and in case 13
of 100% cash margin the commission of said guarantee is
Tk.200/- as service charge.
Now the question which requires to be addressed is
that whether those FDRs deposited by the writ petitioner
infavour of the Janat a Bank as a security of bank
guarantee be treated as 100% cash margin or not.
Bank guarantee means a comfort, which is being give n
by issuing bank, to a party (b eneficiary in whose favour
the guarantee is issued) of losses or damages if the
client (on whose behalf the guarantee is being used)
fails to complete or comfort to the terms of agreement.
By issuing a bank guarantee, the issuing bank is assuring
payment of the certain amount of money (as specified in
the bank guarantee) to the beneficiary in case of non -
performance of a certain contract according to the terms
and conditions contained in the same. Issuance of bank
guarantee is a secured transaction as the client needs to
mortgage the properties or cash in the form of FDR for
issuing of same. The bank will not give guarantee without
securing itself. Again, when the borrower provides equal
amount of bank guarantee in the form of fixed 14
deposit/call deposit, i t is known as 1 00% cash margin
since the fixed deposit can be closed immediately and the
default if any can be set right without any delay and the
bank need not provide any f und based loan for this
purpose and for this characteristics the FDR must be
treated as equivalent to 100% cash margin.
(Emphasis supplied by us.)
It appears from the record that the entire twenty
five bank guarantees have been secured by the lien of
those FDRs. Though Circular No.1750 dated 23.05.1992,
which re-affirmed the Circular No. 1667 dated 04. 12.1990,
stated that Janata Bank can issue a bank guarantee on the
basis of commission @ cªwZ wZbgvm A_ev Dnvi fMœvs‡ki Rb¨ $ 0.75% nv‡i| me©wbgœ $
200/-, 100% M¨vivw›U gvwR©b cª`vb Kwi‡j ïaygvÎ mvwf©m PvR© $ 200/- Av`vq‡hvM¨ but the rate
of commission was reduced at 0.50% as incorporated in the
sanction letter. In the instant case, since entire twenty
five bank guarantees have been secured by the FDRs as
such the bank guarantees are secured by 100% cash margin.
Again, since the bank guarantee s are secured by the lien
of those FDRs which can be encashed at any time as such
the FDRs are equivalent to cash margin. So, the Janata
bank is entitled to get Tk.200/- as service charge as per 15
the chart attached with the Circular No. 1750 dated
23.05.1992.
From the facts and circumstances of the case and the
discussions made above, we are of the view that the
letter is sued by the writ respondent no. 10 claiming
deduction of commission @ 0.50% on the entire secured
amount cannot be treated as lawful deduction as such the
judgment and order s dated 09.02.2014 and 10.02.2014
passed by the High Cour t Division in Writ Petition
No.4715 of 2013 do not calls for any interference by this
Division.
In the result, the civil appeal is dismissed.
The judgment and order passed by the High Court
Division is maintained.
However, no order as to costs.
C.J.
J.
J.
J.
J.
The 17th January, 2024
Jamal/B.R./Words-*2795*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS.153 -154 OF 2018 WITH CIVIL PETITION FOR
LEAVE TO APPEAL NOS. 3939 OF 2017, 3283 OF 2017, 3538 OF
2018, 2586 OF 2018, 1414 OF 2018, 4229 OF 2018, 4230 OF 2018,
4675 OF 2018, 1704 OF 2019, 1705 OF 2019 AND 1706 OF 2019.
(From the judgment and order s dated 12.11.2017, 30.03.2017,
03.07.2017, 18.07.2017, 04. 01.2018, 17.10.2017, 27.05.2018,
13.05.2018 and 22.01.2019 passed by the High Court Division
in Writ Petition No s.10033 of 2017, 10746 of 2016, 1734 of
2017, 7760 of 2017, 7276 of 2017, 8093 of 2017, 10926 of
2016, 12883 of 2016, 3991 of 2018, 12480 of 201 6, 9762 of
2016 and 15917 of 2017 respectively).
Government of the People’s Republic
of Bangladesh, represented by the
Secretary, Ministry of Education,
Bangladesh Secretariat Building,
Ramna, Dhaka and another.
: ...Appellants.
(In C.A. No.153 of 2018)
Md. Alauddin : ...Appellant.
(In C.A. No.154 of 2018)
Government of the People’s Republic
of Bangladesh, represented by the
Secretary, Ministry of Education,
Bangladesh Secretariat Building,
Ramna, Dhaka and others.
: ...petitioners.
(In C. P. Nos.3939 of 2017,
3283 of 2017, 3538 of 2018,
2586 of 2018, 1414 of 2018,
4229 of 2018, 4230 of 2018,
4675 of 2018, 1704 of 2019,
1705 of 2019 and 1706 of 2019)
-Versus-
Md. Abdul Monnaf and others. : ...Respondents.
(In C.A. Nos.153-154 of 2018)
Kaunia College, represented by Md.
Shaheen Sarker , Member of the
Governing Body of Kaunia College,
Kawnia, Rangpur and another.
: ...Respondents.
(In C.P. No.3939 of 2017)
Md. Toib Ali and another. : ...Respondents.
(In C.P. No.3283 of 2017)
Md. Monu Miah, Assistant Professor,
Political Science and others.
: ...Respondents.
(In C.P. No.3538 of 2018)
Md. Shams Uddin and others. : ...Respondents.
(In C.P. No.2586 of 2018) 2
Md. Habibur Rahman and another. : ...Respondents.
(In C.P. No.1414 of 2018)
Lashkerpur Degree Mohabidyaniketon,
represented by its Principal A.N.M.
Monirul Islam and another.
: ...Respondents.
(In C.P. No.4229 of 2018)
Md. Nojer Ali and others. : ...Respondents.
(In C.P. No.4230 of 2018)
Md. Tazul Islam and others. : ...Respondents.
(In C.P. No.4675 of 2018)
Chowhali S.B.M. College, represented
by its Principal (in Charge) Mohammad
Monirul Bari Bablu and another.
: ...Respondents.
(In C.P. No.1704 of 2019)
Charjabbar Degree College, represented
by Oli Uddin Ahmed being dead his heirs
1(a) Saydul Haque Bhuiyan Donner and
Founder Member, Charjabbar Subornochar,
Noyakhali and others.
: ...Respondents.
(In C.P. No.1705 of 2019)
Sheikh Shahidul Alam. : ...Respondent.
(In C.P. No.1706 of 2019)
For the Appellants/Petitioners.
(In C.A. No.153 of 2018)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney
General instructed by Ms. Sufia
Khatun, Advocate-on-Record.
For the Appellant.
(In C.A. No.154 of 2018)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney General
instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record.
For the Petitioners.
(In C.P. Nos.3939 of 2017, 3283
of 2017, 3538 of 2018, 2586 of
2018, 1414 of 2018, 4229 of
2018, 4230 of 2018, 4675 of 2018
1704-1706 of 2019)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney General
instructed by Mr. Haridas Paul,
Advocate-on-Record, Ms. Sufia
Khatun, Advocate -on-Record and Ms.
Mahmuda Begum, Advocate-on-Record. 3
For Respondent No.1.
(In C.A. No.153 of 2018)
: Mr. Probir Neogi, Senior
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.10.
(In C.A. No.153 of 2018)
: Mr. Zainul Abedin, Advocate -on-
Record.
For Respondent Nos.2-9.
(In C.A. No.153 of 2018)
: Not represented.
For Respondent No.1.
(In C.A. No.154 of 2018)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent Nos.2-11.
(In C.A. No.154 of 2018)
: Mr. Samarendra Nath Biswas,
Deputy Attorney General
instructed by Ms. Sufia Khatun,
Advocate-on-Record.
For Respondent No.1.
(In C.P. No.3939 of 2017)
: Mr. S. M. Rezaul Karim, Advocate
instructed by Ms. Sufia Khatun,
Advocate-on-Record.
For Respondent No.2.
(In C.P. No.3939 of 2017)
: Not represented.
For Respondent Nos.1-2.
(In C.P. No.3283 of 2017)
: Mr. Md. Fazlur Rahman, Advocate
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-Record and
Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
For Respondent No.1.
(In C.P. No.3538 of 2018)
: Mr. Sharif Uddin Chaklader,
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.41.
(In C.P. No.3538 of 2018)
: Ms. Joya Bhattacharjee, Advocate
instructed by Mr. Md. Helal
Amin, Advocate-on-Record.
For Respondent Nos.2-40.
(In C.P. No.3538 of 2018)
: Not represented.
For Respondent No.1.
(In C.P. No.2586 of 2018)
: Mr. Mintu Kumar Mondall,
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.28.
(In C.P. No.2586 of 2018)
: Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
For Respondent No.2-27.
(In C.P. No.2586 of 2018)
: Not represented. 4
For Respondent Nos.1-2.
(In C.P. No.1414 of 2018)
: Mr. Md. Fazlur Rahman, Advocate
instructed by Mr. Nurul Islam
Bhuiyan, Advocate -on-Record
(dead) and Mr. Syed Mahbubar
Rahman, Advocate-on-Record.
For Respondent No.1.
(In C.P. No.4229 of 2018)
: Mr. M. Qumrul Hoque Siddique,
Senior Advocate Mr. Md. Momin
Uddin, Advocate-on-Record.
For Respondent No.7.
(In C.P. No.4230 of 2018)
: Mr. M. Qumrul Hoque Siddique,
Senior Advocate Mr. Md. Momin
Uddin, Advocate-on-Record.
For Respondent No.2.
(In C.P. No.4229 of 2018)
: Not represented.
For Respondent Nos.1-6.
(In C.P. No.4230 of 2018)
: Not represented.
For the Respondents.
(In C. P. No.4675 of 2018)
: Mr. Md. Taufique Hossain,
Advocate-on-Record.
For Respondent No.1.
(In C. P. No.1704 of 2019)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent No.2.
(In C. P. No.1704 of 2019)
: Mr. Md. Nurul Islam Chowdhury,
Advocate-on-Record.
For Respondent No.1(a)-1(h).
(In C. P. No.1705 of 2019)
: Mr. Abul Khair, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent No.2.
(In C. P. No.1705 of 2019)
: Not represented.
For the Respondent.
(In C. P. No.1706 of 2019)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record.
Date of Hearing. : The 30th & 31st January, 2024.
Date of Judgment. : The 06th February, 2024.
J U D G M E N T
Borhanuddin,J: Since both the civil appeal and connected
civil petitions involve identical point of law based on
similar facts as such all are taken together for hearing
and disposed of by this common judgment. 5
Both the civil appeal arose out of the judgment and
order dated 12.11.2017 passed by the High Court Division
in Writ Petition No.10033 of 2017 disposing of the Rule
with direction.
Brief facts are that t he respondent no.1 herein as
petitioner preferred the writ petition Challenging Memo
No.07.00.0000.153.015.06.17-81 dated 21.03.2017 issued
and signed by the writ-respondent no.7, Deputy Secretary,
Finance Division, Ministry of Finance, preferring the
‘Badshagonj Public High School’ for nationalization at
Dharmapasha Upazilla under Sunamgonj District instead of
‘Janata Model High School’ Dharmapasha, Sunamgonj, in
violation of the guideline framed by the writ -respondent
no.1 and also seeking direction upon the respondents to
nationalize ‘Janata Model High School’ pursuant to
guideline and policy of nationalization of non -Government
school and college.
Background of the civil appeals as well as the civil
petitions are that the Government has taken initiative
for nationalization of college and school in every
Upazilla of the country and accordingly, the writ -6
respondent no.1 framed a guideline ; The guideline sets
7(seven) prerequisites for nationalization; Accordingly,
the authority of the ‘Janata Model High School’ filed
representation with a detail ed information of the school
to the Prime Minister’s Office through local Member of
the Parliament; The Prime Minister’s Office on 18.11.2014
sent a letter to the writ -respondent no.1 , Secretary,
Ministry of Education, for taking necessary steps for
nationalization of the school; On 21.12.2014, the writ -
respondent no.1 forwarded a letter to the writ -respondent
no.3, Director General (DG), Department of Secondary and
Higher Education, Dhaka , for collecting necessary
information; On 15.01.2015, the writ -respondent no.5 ,
Assistant Director (Secondary-1), Department of Secondary
and Higher Education, Dhaka , issued a letter infavour of
the respondents as well as the Head Master of the ‘Janata
Model High School’ informing that an inspection committee
has been formed for holding inspection of the school; On
13.07.2016, the writ -respondent no.5 issued a Memo
bearing No.37.02.0000.106.49. 002.15 -976 enclosing name
of 119 schools of different upazillas, barring the school 7
authority from transferring movable and immovable
properties of the school and spending money from the
school fund in order to nationalize the school s and
petitioner’s school was list ed in Serial No.13 in the
memo; All on a sudden, the writ -respondent no.7, Deputy
Secretary, Finance Division, Ministry of Finance,
published a list of total 42 schools which are to be
nationalized vide Memo No.07.00.0000.153.015.06.17 -81
dated 21.03.2017 where the name of the ‘Janata Model High
School’ disappeared and name of the ‘Badshagonj Public
High School’ was listed in Serial No.33; ‘Janata Model
High School’ was established in the year 1931 on 3.02
acres of land; On the other hand ‘Badshagonj Public High
School’ was established in the year 1950 on 2.00 acres of
land; The ‘Janata Model High School’ consists of 8(eight)
buildings having 32 teachers and staffs, 2333 students,
well equipped laboratory and library and th e school is a
recognized centre for J.S.C. and S.S.C. examinations; On
the contrary, ‘Badshagonj Public High School’ consists of
5(five) buildings; The ‘Janata Model High School’ is
situated in Dharmapasha Upazilla within 0(zero) kilometer 8
from the Upazill a Sadar and the ‘Badshagonj Public High
School’ is situated about 7(seven) kilomet er away from
Upazilla Sadar; In the circumstances, the writ -petitioner
on 12.10.2017 sent a notice demanding justice to the
writ-respondents requesting nationalization of the
‘Janata Model High School’ but no step has been taken; As
such the writ -petitioner constrained to file the writ
petition and obtained a Rule Nisi.
Upon hearing the parties, the High Court Division
disposed of the writ petition with a direction that the
writ-respondent nos.1 -10 shall perform all formalities
for nationalization of the ‘Janata Model High School’.
The High Court Division without interfering in the
process of nationalization of ‘Badshagonj Public High
School’ observed that both the schools sh all be
nationalized.
Having aggrieved, the Government and the writ -
respondents have filed separate petitions for leave to
appeal being Civil Petition for Leave to Appeal Nos.967
of 2018 and 1337 of 2018 respectively. Both the civil 9
petitions were heard together and a single leave granting
order passed by this Division on 12.07.2018.
Consequently, these civil appeals arose.
Mr. Sk. Md. Morshed, learned Additional Attorney
General appearing for the appellants in both the appeals
submits that nationalizatio n of school or college is a
policy decision of the Government which is not a subject
matter of judicial review and as such the direction given
by the High Court Division in not sustainable in law . He
further submits that the policy decision must be left to
the Government as it alone can decide which policy should
be adopted after consideration of all aspects from
different angles. He again submits that the High Court
Division erred in law in directing the Government for
nationalization of the writ -petitioner’s school without
considering that mere preparation of the list for
inspection does not confer any legal right to the writ -
petitioner as such the impugned judgment and order with
direction is liable to be set -aside. He lastly submits
that the High Court D ivision erred in law in directing
the Government to include ‘Janata Model High School’ 10
alongwith the ‘Badshagonj Public High School’ for
nationalization which is beyond the guideline framed by
the Government . In support of his submissions, the
learned Additional Attorney General referred to the case
of Raypur L.M. Pilot Model High School vs. The Government
of Bangladesh and others, reported in 6 LM (AD)(2019) 269
and also referred to an unreported decision dat ed
22.05.2022 passed by this Division in Civil Petition for
Leave to Appeal No.4549 of 2018.
On the other hand, Mr. Probir Neogi learned Advocate
appearing for the respondents submits that by the memo
dated 13.07.2016 the respondents listed the writ -
petitioner’s school in Serial No.13 for nationalization
imposing certain restrictions and injunctions which were
complied with by the school and thus the school
authority, students and guardians legitimately expected
that the school would be nationalized and as such the
High Court Division rightly disposed of the Rule issuing
necessary directions. He also submits that the ‘Janata
Model High School’ fulfil led the prerequisites of the
guideline framed for nationalization of schools and 11
colleges and as such droppin g the name of the writ-
petitioner’s school is a malafide act of the respondents
which is by its nature an act without jurisdiction as
such the High Court Division justly and legally passed
the impugned judgment and order with direction. In
support of his s ubmissions he referred to the case of
M/S. Hajee Mohammad Ali & sons vs. Burma Eastern Ltd. and
others, reported in 38 DLR (AD) 41 and the case of Abdul
Rauf and others vs. Abdul Hamid Khan and others, reported
in 17 DLR (SC) 515.
Heard the learned Advocate for the respective parties
and perused the impugned judgment and order passed by the
High Court Division and other papers/ documents contained
in the paper books.
It appears that the petitioner’s school was listed
for consideration to be nationalized vide memo dated
13.07.2016 with direction to do and/not to do some acts.
Accordingly, authority of the school acted in compliance
with the said instructions to its disadvantage. Fairly on
this aspect, this Court is of the opinion that the school
authority has acquired legal right to know as to why 12
their school has not been nationalized. The students,
guardians, teachers of the school as well as inhabitants
of the locality were mentally prepared for
nationalization of the school and the y acted to their
disadvantage in various ways for such nationalization but
subsequently vide memo dated 21.03.2017 they came to know
that the name of another school was inserted instead of
their school for reasons not known to them. This should
not be the policy decision of the Government. The act of
the writ -respondent in dropping the name of the
petitioner’s school is a clear violation of the principle
of natural justice. True, nationalization of a particular
school is not a matter of judicial review and it is also
true that the policy decision must be left to the
Government. But the court can consider whether a decision
making authority exceeded its power, committed an error
of law, violated rules of natural justice, reached a
decision which no reaso nable man would have reached or
otherwise abuse its power.
In view of the facts and circumstances, we are not
inclined to interfere with the impugned judgment and 13
order alongwith the direction passed by the High Court
Division. But considering the discussions made above and
for the reasons stated therein, we are modifying
direction of the High Court Division passed in the
operative portion of the impugned judgment and order in
the following manner:
“We, therefore direct the respondent nos.1 -
10 to do all th e formalities for
nationalization of ‘Janata Model High
School’ in near future when occasion arose.”
The other portions of the impugned judgment and order
passed by the High Court Division shall remain as it is.
Accordingly, b oth the Civil Appeal Nos.153 -154 of
2018 are disposed of with the above modification and
direction. Connected Civil Petitions for Leave to Appeal
are disposed of in the light of the judgment and order
delivered in C.A. Nos.153-154 of 2018.
No order as to costs.
J.
J.
J.
J.
The 6th February, 2024.
Jamal/B.R./Words-*-------*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.81 OF 2016
(From the judgment and order dated 02.01.2011 passed by the High Court Division in
Writ Petition No.3395 of 2008)
Commissioner of Customs and
others
…..….Appellants
-Versus-
United Plastic Work Industries
(Pvt.) Ltd
...…..…Respondent
For the appellants
: Mr. A.M. Amin Uddin, Attorney
General with Mr. Sk. Md.
Morshed, Additional Attorney
General and Mr. Samarendra
Nath Biswas, Deputy Attorney
General, instructed by Mr.
Haridas Paul, Advocate-on-
Record.
For the respondent
: Mr. Munshi Moniruzzaman,
Advocate, instructed by Mr. Md.
Zahirul Islam, Advocate-on-
Record.
Date of hearing : The 3rd day of January, 2024
Date of judgment : The 6th day of February, 2024
JUDGMENT
Obaidul Hassan, C.J. The Civil Appeal by leave granting
order dated 07.01.2016 in Civil Petition for Leave to Appeal No.1326
of 2011 is directed against the judgment and order dated 02.01.2011
passed by a Division Bench of the High Court Division in Writ
Petition No.3395 of 2008 making the Rule absolute with direction.
=2=
The facts essential for disposal of the Civil Appeal, in brief, are
that writ-petitioner-respondent filed Writ Petition being No.3395 of
2008 before the High Court Division challenging the demand notice
dated 13.04.2008 issued by writ-respondent No.1 under Section 55
(1) of the VAT Act, 1991 directing the writ-petitioner to deposit
Tk.34,75,555.00 to the Government Treasury and also the notice of
the same dated 13.04.2008 issued by writ-respondent No.1 under
Section 37(2) of the VAT Act, 1991 requiring the writ-petitioner to
show cause as to why penal action would not be taken against it.
The writ-petitioner-respondent filed the aforesaid writ
petition contending, inter alia, that the writ-petitioner company is
engaged in the business of import, export and manufacture of
leather goods. The company has been paying VAT regularly
through ‘Musak Chalan’ and monthly statements were being
submitted regularly to the Divisional Office of VAT authority. The
writ-petitioner preserves the copies of the aforesaid monthly return.
The writ-respondent No.1-appellant No.1 issued a demand notice
on 13.04.2008 under Section 55(1) of the VAT Act, 1991 directing the
writ-petitioner to deposit Tk.34,75,555.00 within 10(ten) days
through treasury chalan without issuing any prior show cause notice
alleging that the writ-petitioner company evaded VAT for an
amount of Tk.34,75,555.00 against Bill of Entry No.C-163414 dated
14.07.2004, C-167237 dated 17.07.2004, C-272541 dated 01.11.2004
=3=
and C-290026 dated 23.11.2004 on the basis of assumption stating
that 1,36,296.29 running feet plastic board could be made by the
18,4000 kg raw materials under the aforesaid bills of entry and the
value of the said goods stood at Tk.2,31,70,370.00 as per value
approval dated 13.10.2004 @Tk.170 per running feet and therefore
the writ-petitioner is liable to pay Tk.34,75,555.00 applying VAT
upon the said value.
The writ-respondent No.1-appellant No.1 on the same day i.e.
13.04.2008 also issued a show cause notice under Section 37(2) of the
VAT Act, 1991 for taking penal action against the respondent No.1
without establishing the evasion of VAT in accordance with law.
Upon preliminary hearing of the Writ Petition, Rule was
issued by the High Court Division. During final hearing, the writ-
respondents-appellants could not file affidavit-in-opposition
controverting the statements made by the writ-petitioner. A
Division Bench of the High Court Division upon hearing the parties,
vide judgment and order dated 02.01.2011 made the Rule absolute.
Being disgruntled and dissatisfied with the impugned
judgment and order of the High Court Division the writ-
respondents-appellants filed the Civil Petition for Leave to Appeal
No.1326 of 2011 and hence the instant appeal.
Mr. A.M. Amin Uddin, learned Attorney General along with
Mr. Sk. Md. Morshed, learned Additional Attorney General and Mr.
=4=
Samarendra Nath Biswas, learned Deputy Attorney General
appearing on behalf of the appellants taking us through the
judgment and order dated 02.01.2011 passed by the High Court
Division in Writ Petition No.3395 of 2008 as well as the materials on
record submitted that the High Court Division erred in law in
making the Rule absolute ignoring the fact that the Commissioner of
VAT rightly issued separate notices under Sections 55 and 37 of the
VAT Act both dated 13.04.2008 and both the Sections are
independent provisions of the VAT Act. The learned Attorney
General contended next that the High Court Division erred in law in
making the Rule absolute without considering that Section 55 of the
VAT Act deals with realization of unpaid or less paid VAT and
Section 37 of the VAT Act deals with penalty after violation of
certain provisions of the VAT Act including willful evasion of the
VAT. The learned Attorney General argued next that the High
Court Division erred in law in making the Rule absolute and, as
such, the Writ Petition No.3395 of 2008 is not maintainable as being
premature as it was filed impugning the notices for showing cause
and, as such, the impugned judgment and order passed by the High
Court Division is liable to scraped.
Per contra, Mr. Munshi Moniruzzaman, the learned Counsel
appearing on behalf of the respondent contended that the impugned
demand notice dated 13.04.2008 under Section 55(1) was issued
=5=
without any prior show cause notice to the writ-petitioner as
contemplated in Section 55(3) of the VAT Act. The learned Counsel
argued next that no penal action for evasion of VAT could be taken
under Section 37(2) of the VAT Act before final demand is
established in accordance with Section 55 of the VAT Act and in the
case in hand no final demand had been established in accordance
with Section 55 of the VAT Act, therefore the show cause notice
dated 13.04.2008 under Section 37(2) of the VAT Act is liable to be
declared to be illegal and is of no legal effect and the High Court
Division on proper appreciation of all legal and factual aspects of
the case made the Rule absolute and as such the impugned
judgment and order of the High Court Division does not call for
interference by this Division.
We have gone through the judgment and order dated
02.01.2011 passed by the High Court Division, submissions of the
learned counsels for both sides as well as the materials on record.
It is on the record that the writ-petitioner-respondent
challenged two notices both dated 13.04.2008 issued by the writ-
respondent No.1. The writ-petitioner challenged the legality of
notice dated 13.04.2008 issued by the writ-respondent No.1 under
Section 55(1) of the VAT Act, 1991 in violation of the provisions as
contemplated under Section 55(3) of the VAT Act, 1991 without
giving the writ-petitioner an opportunity of being heard.
=6=
At this juncture, it is prudent to discuss the provisions of law
as laid down under Section 55 of the VAT Act, 1991. Section 55 of
the VAT Act, 1991 is extracted in the following:
”অনাদায়ী ও কম পিরেশািধত মূলҝ সংেযাজন করসহ অনҝানҝ ზћ-কর আদায়
৫৫৷(১) έযেϠেϏ έকােনা িনবিсত বা িনবсনেযাগҝ বҝΝЅ বা টাণκওভার কর এর
আওতায় তািলকাভΦЅ বা তািলকাভΦΝЅর έযাগҝ বҝΝЅ, তদকতৃ κক ধারা ৩৭ এর উপ-ধারা
(২) এ বিণκত এক বা একািধক অপরাধ সংঘটেনর কারেণ অথবা ভΦলবশত: বা ভΦল
বҝাখҝার কারেণ, সরবরাহক ৃ ত পণҝ বা ϕদЫ έসবার উপর ϕেদয়-
(ক) মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზћ ধাযκ বা
পিরেশাধ করা হয় নাই,
(খ) একই কারেণ মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক
ზћ έফরত ϕদান করা হইয়ােছ,
(গ) ধারা ১৩ এর অধীন মূলҝ সংেযাজন কর, সѕূরক ზћ, আমদািন ზћ, আবগারী
ზћ, অনҝানҝ ზћ ও কর (আগাম আয়কর বҝতীত) ϕতҝপκণ করা হইয়ােছ,
(ঘ) বাংলােদেশ সরবরাহক ৃ ত έকান পণҝ বা έসবার উপর ϕেদয় মূলҝ সংেযাজন কর বা,
έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზেћর িবপরীেত সমуয় করা হইয়ােছ,
έসেϠেϏ উЅ বҝΝЅেক তাহার উপর έয তািরেখ উЅ মূলҝ সংেযাজন কর বা,
έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზћ ϕেদয় হইয়ািছল বা ϕতҝপκণ বা έফরত
ϕদান বা সমуয় করা হইয়ািছল έসই তািরখ হইেত পাঁচ (৫) বৎসেরর মেধҝ সংিѫѭ মূলҝ
সংেযাজন কর কমκকতκা έনাΜটশ еারা, έনাΜটেশ উিѣিখত ზћ বা মূলҝ সংেযাজন কর
দািব কিরয়া, উহােত উিѣিখত সময়সীমার মেধҝ উЅ ზћ বা মূলҝ সংেযাজন কর
পিরেশােধর জনҝ কারণ দশκােনা έনাΜটশ জাির কিরেবন।
তেব শতκ থােক έয, যিদ έকান বҝΝЅ ধারা ৩৭ এর উপ-ধারা (২) এর দফা (ক), (গ), (চ),
(জ), (ঝ), (ট) ও (ঠ) এর অধীন অপরাধ সংঘটন কেরন, তাহা হইেল মূলҝ সংেযাজন
কর কমκকতκা, বা έϠϏমত, সংিѫѭ বҝΝЅর έϠেϏ এই উপ-ধারায় উিѣিখত ৫(পাঁচ)
বৎসর সময়সীমা ϕেযাজҝ হইেব না।
(২) আমদািনক ৃ ত পেণҝর έϠেϏ έকান মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ
সংেযাজন কর ও সѕূরক ზћ, έকান কারণবশতঃ পিরেশাধ করা না হইয়া থািকেল বা
ভΦলবশতঃ কম পিরেশািধত হইয়া থািকেল বা έফরত ϕদЫ হইয়া থািকেল উহা
Customs Act এর Section 32 এবং section 83A έত ϕদЫ িবধান অনুযায়ী আদায়
করা হইেব।
(৩) উপ-ধারা (১) এর অধীন ზћ ও কর ϕদােনর জনҝ έযই বҝΝЅর িনকট হইেত দাবী
করা হয় έসই বҝΝЅ উЅ উপ-ধারার অধীন কারণ দশκােনা έনাΜটেশ উিѣিখত সময়
সীমার মেধҝ িলিখতভােব উЅ দাবীর িবেд আপিЫ উЬাপন কিরেল তাহােক
ზনানীর সুেযাগদান কিরেত হইেব; অতঃপর উЅ বҝΝЅর উЬািপত আপিЫ িবেবচনা
কিরয়া সংিѫѭ মূলҝ সংেযাজন কর কমκকতκা উЅ আপিЫ দািখেলর ১২০(একশত িবশ)
িদেনর মেধҝ বা έকান আপিЫ দািখল করা না হইেল উЅ উপ-ধারার অধীন έনাΜটশ
জারীর তািরেখর ১২০(একশত িবশ) িদেনর মেধҝ έনাΜটেশ দাবীক ৃ ত ზћ ও কেরর
=7=
পিরমান,ϕেয়াজনেবােধ, পুনঃিনধκারণοেম চ ূ ড়াо কিরেত পািরেবন, এবং উЅ বҝΝЅ
έনাΜটেশ দাবীক ৃ ত বা, έϠϏমত, পুনঃিনধκািরত ზћ ও কর পিরেশাধ কিরেত বাধҝ
থািকেবন ৷
(৪) উপ-ধারা (১) এ অধীন ზћ ও কর ϕদােনর জনҝ έযই বҝΝЅর িনকট হইেত দাবী
করা হয়, έসই বҝΝЅ িলিখতভােব উЅ দাবীক ৃ ত অথκ িকΝѷেত পিরেশােধর ইИা বҝЅ
কিরেল কিমশনার তত্কতৃ κক িনধκািরত শতκ ও িকΝѷেত উЅ দাবীক ৃ ত ზћ ও কর
পিরেশােধর জনҝ আেদশ ϕদান কিরেত পািরেবন:
তেব শতκ থােক έয, িকΝѷ ϕদােনর সময়সীমা ছয় মােসর অিতিরЅ হইেব না ৷”
(underlines supplied by us)
It appears from Section 55(3) of the VAT Act, 1991 that before
issuing a notice regarding evasion of VAT against a person the VAT
authority is required to issue a show cause notice giving the person
sufficient time stipulated in Section 55(3).
The relevant portion of the impugned notice under Section
55(1) of the VAT Act is reproduced below:
(underlines supplied by us)
But in the case in hand the writ-respondent No.1-appellant No.1
issued the demand notice dated 13.04.2008 under Section 55 (1) of
the VAT Act, 1991 directing the writ-petitioner to deposit
Tk.34,75,555.00 to the Government Treasury as the petitioner was
=8=
allegedly evaded the said amount of VAT. The VAT authority did
not state within the four corners of the said notice whether the writ-
petitioner-respondent had been given an opportunity of being heard
as to the allegations of evasion of VAT rather the VAT authority
directed the writ-petitioner to deposit the evaded amount of VAT in
the government exchequer within 10(ten) working days. In doing
so, the writ-respondent No.1-appellant No.1 did not comply with
the mandatory provisions of law as contemplated under Section
55(3) of the VAT Act.
In the premises as stated above, we are of the view that the
notice dated 13.04.2008 issued by the writ-respondent No.1-
appellant No.1 under Section 55(1) of the VAT Act, 1991 is
unwarranted and without jurisdiction and as such the same is liable
to be scraped. In this regard, the High court Division did not
commit any illegality declaring the said notice under Section 55(1)
unlawful.
It is apparent from the record that the writ-respondent No.1-
appellant No.1 issued another notice to the writ-petitioner on the
same date i.e., 13.04.2008 to show cause as to why penal action
should not be taken against the writ-petitioner under Section 37(2)
of the VAT Act, 1991.
Section 37 of the VAT Act is stated below:
”অপরাধ ও দЦসমূহ
৩৭। (২) যিদ έকােনা বҝΝЅ-
=9=
(ক) কর চালানপϏ ϕদান না কেরন অথবা ვЯপূণκ তেথҝর িদক হইেত অসতҝ কর
চালানপϏ ϕদান কেরন, অথবা
(কক) িনবিсত হওয়া সেϬও কর চালানপϏ বҝতীত পণҝ বা έসবা ςহণ কেরন, অথবা
(খ) তৎকতৃ κক সরবরাহক ৃ ত পণҝ বা έসবার έϠেϏ, সংিѫѭ কমκকতκা কতৃ κক দুইবার
িনেদκিশত হওয়া সেϬও, মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও
সѕূরক ზћ ϕদান কিরেত অথবা έকান কর έময়ােদ দািখলপϏ ϕদােনর িনিদκѭ
সময়সীমা অিতοাо হইয়া έগেলও উহা দািখল কিরেত বҝথκ হন, অথবা
(গ) ვЯপূণκ তেথҝর িদক হইেত অসতҝ দািখলপϏ ϕদান কেরন, অথবা
(ঘ) িবοয় িহসাব পুѷেক িবοয় সংοাо তথҝ িলিপবд না কিরয়া এবং চলিত িহসাব
পুѷেক ϕেদয় মূলҝ সংেযাজন কর িলিপবд না কিরয়া পণҝ সরবরাহপুবκক মূলҝ
সংেযাজন কর ফাঁিক έদওয়ার έচѭা কেরন, অথবা
(ঙ) οয় িহসাব পুѷেক ৪৮ ঘлার মেধҝ] িলিপবд না কিরয়া মূলҝ সংেযাজন কর ফাঁিক
έদয়ার έচѭা কেরন, অথবা
(চ) মূলҝ সংেযাজন কর কমκকতκােক έকান জাল বা িমথҝা দিললপϏ ϕদান কিরয়া উহার
মাধҝেম কর ফাঁিক έদন বা έদওয়ার έচѭা কেরন বা ϕতҝপκণ ςহণ কেরন বা ςহেণর
έচѭা কেরন , অথবা
(ছ) সংিѫѭ মূলҝ সংেযাজন কর কমκকতκা কতৃ κক িনেদκিশত হওয়া সেϬও, έকান িনবিсত
বা িনবсনেযাগҝ বҝΝЅ έকান তথҝ বা দিললািদ সরবরাহ কিরেত বҝথκ হন, অথবা
(জ) এই আইন বা িবিধ অনুযায়ী সংরϠণ করা ϕেয়াজন এইপ έকান নিথপϏ,
ইেলϢিনক কҝাশ έরΝজѶার বা Point of Sales (POS) Software এ কΟѕউটাের িহসাব
সংরϠণ না কেরন অথবা অনুপ έকান নিথপϏ, ইেলϢিনক কҝাশ έরΝজѶার বা POS
Software এ কΟѕউটাের সংরিϠত িহসাব йংস বা পিরবতκন কেরন বা উহার
অДেИদ কেরন বা উহােক িমথҝা ϕিতপт কেরন অথবা উЅ নিথপϏ, ইেলϢিনক
কҝাশ έরΝজѶার বা POS Software এ কΟѕউটাের িহসাব এই আইেনর ϕেয়াজন
έমাতােবক সংরϠণ না কেরন, অথবা
(ঝ) সϡােন িমথҝা িববরণ বা িমথҝা έঘাষণা ϕদান কেরন, অথবা
(ঞ) মূলҝ সংেযাজন কর সংοাо έকান নিথপϏ, ইেলϢিনক কҝাশ έরΝজѶার বা POS
Software বা কΟѕউটার বিহ বা অনҝ έকান দিললপϏ পিরদশκন বা আটক করার জনҝ
এই আইেনর অধীন Ϡমতাϕাч έকান মূলҝ সংেযাজন কর কমκকতκােক তাহার বҝবসার
Ѹেল ϕেবশকােল বাধা ϕদান কেরন বা ϕেবশ করা হইেত িবরত কেরন, অথবা
(ট) έকােনা পেণҝর উপর ϕেদয় মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর
ও সѕূরক ზћ ফাঁিক έদওয়া হইয়ােছ বিলয়া জানা বা িবѩাস করার মত কারণ থাকা
সেϬও উЅ পণҝ ςহেণ বা উহার দখল অজκেন বা έলনেদেন িলч হন, অথবা
(ঠ) জাল বা ভ ূ য়া চালানপেϏর মাধҝেম উপকরণ কর έরয়াত ςহণ কেরন, অথবা
(ড) অনҝ έয έকােনা উপােয় মূলҝ সংেযাজন কর বা সѕূরক ზћ ফাঁিক έদন বা
έদওয়ার έচѭা কেরন, অথবা
(ঢ) িনবিсত বҝΝЅ না হইয়াও এইপ έকান কর চালানপϏ ϕদান কেরন যাহােত মূলҝ
সংেযাজন কেরর পিরমাণ উেѣখ করা থােক, অথবা
(ণ) ধারা ৬ এর উপ-ধারা (৪ক) এর িবধান অনুযায়ী করণীয় έকান িকছΦ না কিরেল বা
করণীয় নয় এমন িকছΦ কেরন, অথবা
=10=
(ত) এই আইন বা িবিধর অধীন έকান পণҝ অপসারণ বা έসবা ϕদােনর έϠেϏ চলিত
িহসােব έয পিরমাণ, যাহা еারা জমাক ৃ ত অেথκর এবং ϕদЫ উপকরণ কর বাবদ ϕাপҝ
έরয়ােতর সমΜѭর еারা ϕেদয় উৎপাদন কর পিরেশাধ বা সমуয় করা যায়, έজর রাখা
ϕেয়াজন িকᅀ έসই পিরমাণ έজর না রািখয়া পণҝ অপসারণ বা έসবা ϕদান কেরন,
অথবা
(থ) দফা (ক) হইেত দফা (ত) এ বিণκত έয έকান কাযκ কের বা কিরেত সহায়তা কেরন,
তাহা হইেল তাহার উЅ কাজ হইেব একΜট অপরাধ এবং উЅ অপরােধর কারেণ যিদ -
(অ) কর ফাঁিক সংঘΜটত হয়, তাহা হইেল িতিন উЅ কর ফাঁিক জিনত অপরােধর জনҝ
সংিѫѭ পণҝ সরবরাহ বা έসবা ϕদােনর উপর ϕেদয় কেরর অনূҝন অেধκক পিরমাণ
এবং অনূй κ সমপিরমাণ অথκদেн দнনীয় হইেবন;
(আ) উЅ অপরাধ কর ফাঁিক বҝতীত অনҝানҝ অিনয়ম সংοাо হয়, তাহা হইেল িতিন
অনূҝন ২০ (িবশ) হাজার টাকা এবং অনূй κ ৫০ (পНাশ) হাজার টাকা অথκদেн দнনীয়
হইেবন।
..................................................................................................................................................................
(৫) সংিѫѭ ব ҝΝЅেক যুΝЅসДত ზনানীর সুেযাগ (সংিѫѭ ব ҝΝЅ ই Иা কিরেল
বҝΝЅগতভােব বা তাহার মেনানীত έকৗশলীর মাধҝেম ზনানীর সুেযাগসহ) ϕদান না
কিরয়া তাহার উপর এই ধারার অধীন έকান অথκদн, έকান έѺশাল জেজর আদালত
কতৃ κক দЦােরাপ বҝতীত, আেরাপ করা যাইেব না বা তাহার বҝবসায় অДন তালাবд
করা যাইেব না বা তাহার িনবсন বািতল করা যাইেব না ৷
(৬)..........................................................................................................................................................”
(underlines supplied by us)
In view of Section 37(5) of the VAT Act, 1991 it is evident that
while imposing fine or penalty on a person the VAT authority is
under obligation to afford him an opportunity of being heard. The
appropriate portion of notice dated 13.04.2008 issued under Section
37(2) of the VAT Act, 1991 is extracted hereunder:
=11=
(underlines supplied by us)
It is palpable from the above that the VAT authority issued
the notice under Section 37(2) giving the writ petitioner 10(ten) days
time to show cause against the penal action to be taken by the VAT
authority. Therefore, the writ-respondent No.1-appellant No.1
issued notice to the writ-petitioner under Section 37(2) and
complied with the legal requirement of affording an opportunity of
being heard as prescribed under Section 37(5) of the VAT Act. In
view of the provisions of Section 37(5) as well as the given
backdrop, we find that the notice dated 13.04.2008 issued under
Section 37(2) of the VAT Act is lawful but the High Court Division
committed illegality in declaring the said notice unlawful and, as
such, the impugned judgment and order, so far as it relates to the
notice under Section 37(2) calls for interference by this Division.
In the light of the discussion made above as well as the facts
and circumstances of the case, the impugned judgment and order
=12=
dated 02.01.2011, so far as it relates to the notice dated 13.04.2008
issued under Section 37(2) of the VAT Act warrants interference by
this Division and accordingly, the Civil Appeal deserves to be
allowed in part.
Hence, the Civil Appeal is allowed in part.
The impugned judgment and order dated 02.01.2011 passed
by the High Court Division in Writ Petition No.3395 of 2008, so far
as it relates to the notice dated 13.04.2008 under Section 37(2) of the
VAT Act, 1991 is hereby set aside.
The notice dated 13.04.2008 issued under Section 55(1) of the
VAT Act, 1991 is declared to have been issued without lawful
authority. However, the concerned VAT authority is at liberty to
issue a fresh notice under Section 55(1) of the VAT Act, 1991 in
accordance with law.
C.J.
J.
J.
J.
The 06th day of February, 2024
RRO. Total words 3,143
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
CIVIL APPEAL NO. 412 OF 2019
(Arising out of C.P No. 2657 of 2018)
The Governme nt of Bangladesh
represented by the Secretary, Ministry
of Law, Justice and Parliamentary
Affairs and others
.... Appellants
-Versus-
Md. Saiful Islam and others ....Respondents
For the Appellants : Mr. Sk. Morshed , Adl. AG
instructed by Mr. Haridas Paul ,
Advocate-on-record
For Respondent No. 1 : Mr. Momtazuddin Fakir , Senior
Advocate with Mr. Sk. Saifuzzaman,
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate-on-record
For Respondent Nos.
2-30
: Not represented
For Respondent Nos.
31-62
: Mr. Satya Ron jon Mondall,
Advocate-on-record
Date of Hearing : 29.08.2023
Date of Judgment : 30.08.2023
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 05.02.2017 passed by
the High Court Division in Writ Petition No s. 13783 and
13784 of 2015 making both the Rules absolute and thereby
directing the writ-respondents to regularize the services
of the writ-petitioners in the post of Extra Moharar 2
under the revenue setup of the Department of Registration
with continuity of service with attending benefits.
The short facts are that the present respondent Nos.
1-30 as petitioners filed the aforesaid writ petition s
seeking a direction upon the writ -respondents to
regularize their service in the post of Extra Moharar
under the revenue setup of the Department of Registration
with continuity of service and all other benefits
contending inter alia that the terms and conditions of
the Extra Moharars are governed by the provisions of
Chapter 16 of the Registration Manual. As per the
provision of rule 310(a) of Volume-VI of the Registration
Manual, Extra Moharar is a permanent post under the
office of the Registration. Earlier the services of many
Extra Moharars were confirmed/regularize d. But the
Department of Registration denied to give the same
benefits to the present Extra Mohrars. Extra Moharars of
West Bengal, India were also confirmed/regularized as
Government Employees and were also granted their entitled
scales.
At one point of time Bangladesh Extra Moharar
(copyist) Associa tion started movement seeking their 3
confirmation/regularization in service . After long laps e
of time, the Department of Registration had recommended
to constitute a committee headed by a Joint Secretary
(Admin) on 04.02.2013 and ultimately a 6 member committee
headed by the Joint Secretary (Admin) of Ministry of Law,
Justice and Parliamentary Affairs was constituted to look
into the demands of the Extra Moharars. On 22.07.2013,
the committee had held its meetin g and recommended to
appoint the Extra Moharars in Grade -19 of the National
Pay Scale of 2009 prescribing the maximum age limit as 19
years.
On 24.09.2013, the Ministry of Public Administration
sought consent to create required number of permanent
posts of the Extra Moharars in order to absorb them. On
12.12.2013, the Ministry of Public Administration had
made some queries and asked writ-respondent No.1 ,
Ministry of Law, Justice and Parliamentary Affairs to
send a copy of the recruitment rules/provision an d the
clear recommendation of the Administrative Ministry.
Since then, the claims of the writ-petitioners still
remained unanswered and their grievances are yet to be
met. Finding no other alternative efficacious remedy, the 4
writ petitioners moved before the High Court Division and
obtained Rule.
Writ-respondent No.4 , the Inspector General of
Registration, Department of Registration contested the
Rule by filing affidavit-in-oppositions contending, inter
alia, that the Ministry of Establishment at present t he
Ministry Public Administration has not approved the
proposal and there is no Service Rules for the extra
Moharars by which they can be appointed or absorbed in
the revenue budget. The extra Moharars are enlisted by
the District Registrar on the report of Sub-Registrar. In
their appointment letter, no a ssurance was given to
absorb/regularize them in their service in the revenue
budget.
The High Court Division, by the impugned judgment and
order, made the Rule s absolute. Against which, the
Government filed this civil petition for leave to appeal
and obtained leave giving rise to this appeal.
Mr. Sk Md. Morshed , the learned Additional Attorney
General, appearing for appellants, submits that the
Moharars, wri t-petitioners of different Sub -registry
Offices, are being appointed by the District Registrar on 5
the report of Sub -Registrars and in the Registration
Manual, there is a clear provision regarding their
appointment and job nature and the terms and conditions
of the service as rendered by the Extra Moharar s are
ruled and governed by the provision of said Manual and
since the Registration Manual has not provided any
provision for absorption of the Extra Moharars in the
revenue budget and the High Court Division without
considering the aspects made the Rule a bsolute and as
such, the operation of the impugned judgment and order is
liable be set aside.
He further submits that the Extra Moharars belonged
to extra establishment created temporarily by the Sub -
Registrars with the sanction of the District Registrar
and since they are being recruited by the Sub -Registrars
on the exercise of discretion temporarily not against the
substantive and as such, they have not acquired any right
to get absorption of their service in the revenue budget
and as such, the impugned judgment and order is liable to
be set aside. 6
On the other hand the learned Advocate(s) appearing
for respondent s made their submissions supporting the
impugned judgment and order of the High Court Division.
We have heard the learned Advocates of both sides. We
have also perused the impugned judgment and order of the
High Court Division and other materials on record.
In the instant case the High Court Division held that
after having served a long period and now being barred by
excess age to apply for a government job afresh it is the
"legitimate expectation" of the writ-petitioners that
they would be absorbed/ appointed/ regularized in the
permanent posts of the department but the respondents for
malafide and oblique reasons are yet to make the writ-
petitioners permanent.
But with the decision of this Division in the case of
the secretary Ministry of the Fisheries and Livestock vs.
Abdur Razzak 71 DLR AD 395 and subsequent decision of
Director General, represented by the Bangladesh Rural
Development Board, Dhaka vs. Ashma Sharif 72 DLR AD 188,
the matter in issue regarding absorption in the revenue
budget has already been set at rest once and for all. The
agog of waiting has come to an end with the pronouncement 7
of those decisions. This Division has cleared u p every
aspect of the common issues leaving no ambiguity which is
no longer a res-integra.
However, eventually this Division in the case of
Secretary Ministry of Fisheries and Live stock Vs. Abdul
Razzak 71 DLR (AD) 395 has dealt with the issue of
absorption, regularization and transfer of the employees
in the revenue budget.
In the above case this Division held that:
"No court can direct the Government or its
instrumentalities to regularize the service of
the officers and employees of the development
project in the revenue budget in the cases where
statutory requirements have not been fulfilled.
Regularization cannot be claimed as a matter of
right. It is statutory requirement that
opportunity shall be given to eligible persons
by public notification and recruitment should be
according to the valid procedure and appointment
should be of the qualified persons found fit for
appointments to a post or an office under the
Government." 8
It is further observed to the effect:
"The legitimate expectation would not ov erride
the statutory provision. The doctrine of
legitimate expectation cannot be invoked for
creation of posts to facilitate absorption in
the offices of the regular cadres/non cadres.
Creation of permanent posts is a matter for the
employer and the same i s based on policy
decision"
In the case of the Director General, represented by
Bangladesh Rural Development Board (BRDB), Dhaka Vs. Asma
Sharif, Shariatpur and others report in 72 DLR (AD) 188
this Division also held that:-
"The theory of legitimate expec tation cannot be
successfully advanced by temporary, contractual
or casual employees. It cannot also be held that
the Government has held out any promise while
engaging these persons either to continue them
where they are or to make them permanent. The
Government cannot constitutionally make such a
promise. It is also obvious that the theory 9
cannot be invoked to seek a positive relief of
being made permanent in the post."
And
"However, sympathy, empathy or sentiment by
itself, cannot be a ground for passing an order
where the litigants miserably fail to establish
legal right. It is true that the respondents had
been working for a long time, the same by itself
would not be a ground for directing
regularization of the service."
It is also important to note some more observations
as made in the above case:
“The Constitution is the supreme law of the
State. All the institutions be it legislature,
executive or judiciary, being created under the
Constitution, cannot ignore it. The dictum - "Be
you ever so high, the law is above you" is
applicable to all, irrespective of his status,
religion, caste, creed, sex or culture. Henry D
Bracton-"The King is under no man but under the
God and the Law". No one is above the law. 10
It is to be noted that the Government has no
authority to issue any orders granting
regularization/absorption or appointment in
violation of the Constitutional scheme and
recruitment rules in force. All recruitment in
matters of Public employment must be made in
accordance with prevailing rules. While de aling
with the concept of recruitment the Supreme
Court of India has categorically laid down that
the expression "recruitment" would mean
recruitment in accordance with the Rules and not
dehors the same and if an appointment is made
dehors the Rules, it is not appointment in the
eye of law. (ref: RS Garg vs State of UP
MANU/SC/8239/2006 : (2006) 6 SCC 430 and
University of Rajasthan vs Prem Lata
MANU/SC/0106/2013 : AIR 2013 SC 1265).
Similarly, the High Court Division in exercising
power under Article 102 of the Constitution will
not issue any direction for transfer/absorption/
regularization or permanent continuance, unless
employees claiming so had been appointed in 11
pursuance of regular recruitment in accordance
with relevant rules in open competitive proc ess,
against sanction posts.
It is true that in their heydays of life the
respondents are serving on exploitative terms
with no guarantee of livelihood to be continued
and in old age they are going to be made
destitute, there being no provision for pensio n,
retirement benefits etc. The employment cannot
be on exploitative terms.
When the employees of the development projects
or casual employees appointed as stopgap
arrangement have put in for considerable years
of service in the posts and their works have
been approved but they could not be regularized,
the only provision provides for them is to
qualify the requisite examination and in such
circumstances, they would get relaxation of
upper age limit. If they are not selected, at
the end of the day, they wo uld return home from
their respective working place with empty hand.
It is the duty of the Government/employers to 12
provide some benefits to them, on the basis of
the period of service they rendered, so that
they may not fall in extreme hardship otherwise
the families of the those employees would face
economic ruination.”
So it is now well settled that Court cannot pass an
order to regularize/absorb the temporary, contractual or
casual employees under the revenue budget unless there is
any statutory provisi on and thus the respondents’ claim
of absorption i n the permanent post under the revenue
budget on the princip le or theory of legitimate
expectation has got no legal basis.
Fortified with the ratio decidendi that has been
spelt out in the decisions as refe rred to above we
unequivocally endorse the same principle and hold that
the writ-petitioners are not entitled to get any relief
as sought for. But at the same time we also
sympathetically endorse the view of this Division taken
in the case of 72 DLR AD (su pra) that the incumbent
respondents should not be driven out without anything and
the government should come forward in this respect in aid
of these hapless employees in these days of hardship. It
is our belief that the present respondents should not
face displacement without recourse. 13
In view of the above, we find merit in the appeal.
Accordingly, the appeal is allowed without any order
as to costs.
The judgment and order dated 05.02.2017 passed by the
High Court Division is hereby set aside.
J.
J.
J.
The 30th August, 2023
/Ismail,B.O./*2095*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan,C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.168 OF 2023
(From the judgment and order dated the 24th September, 2020 passed by a Division
Bench of the High Court Division in Writ Petition No.5495 of 2003)
Ansar V.D.P. Unnayan Bank : . . . Appellant
-Versus-
Ajoy Kumar Lodh and others : . . . Respondents
For the Appellant
: Mr. Mahbub Shafique, Advocate
instructed by Ms. Madhumalati Chy.
Barua, Advocate-on-Record
For the Respondent : Mr. Ajoy Kumar Lodh (in person)
Date of Hearing : The 20th and 28th day of February,2024
Date of Judgment : The 29 th day of February, 2024
J UD G M E N T
M. Enayetur Rahim, J: This appeal, by leave, is directed
against the judgment and order dated 24.09.2020 passed
by the High Court Division in Writ Petition No.5495 of
2003 making the Rule absolute.
The relevant facts for disposal of the instant
appeal are that, the present respondent No.1
(hereinafter referred to as writ-petitioner) was
appointed as an Officer in the Ansar VDP Unnayan Bank on
13.04.1998 and while he was performing his duty as a
manager at Companygonj Branch, Sylhet, a departmental 2
proceeding was initiated against him bringing 16 charges
and allegations under Rules 38(Ka)(Kha) and (Cha) of the
Sonali Bank Employees Service Regulations,1995 (briefly,
Regulations 1995). The writ-respondent No.5, Deputy
General Manager(Admin) of the aforesaid Bank on
18.01.2001, issued a show cause notice upon the
petitioner asking him to reply, if any, within 10(ten)
working days in connection with the allegations brought
against him. In response to the show cause notice, the
writ-petitioner had submitted his reply on 12.02.2001
denying all the material allegations levelled against
him.
Thereafter, on 11.03.2001 the concerned authority
formed an enquiry committee consisting of two members to
inquire into the charges and the committee after having
conducted the inquiry, filed a report on 29.03.2001
holding that the writ-petitioner is liable for the
charges Nos.1, 2, 9, 11 and 15 as recorded therein, and
some charges have been found partially established, and
three charges being Nos.3, 4 and 10 were found without
basis.
Afterwards, on 30.10.2001, the writ-respondent
No.4, General Manager(Administration), issued the final
show cause notice upon the writ-petitioner with a view
to remove him from service asking him to reply to that
effect within 7(seven) working days, if any (Annexure-E
to the writ-petition) and pursuant to that notice, the
writ-petitioner submitted a written reply on 15.11.2001 3
to the respondent No.4 categorically denying all the
allegations and charges brought against him. On receipt
on the reply, the writ-respondent No.5, issued an office
order dated 30.12.2001 removing the writ-petitioner from
his service under Rule 39(kha)(e) of Sonali Bank
Employees Service Regulations, 1995(Annexure-G), against
which the writ-petitioner filed a departmental appeal
before the writ-respondent No.3, Managing Director,
Ansar VDP Unnyan Bank, on 27.03.2002, which was
disallowed by the appellate authority.
Feeling aggrieved by the decision of the appellate
authority the writ-petitioner filed review petitions
twice before the writ-respondent No.3, Managing Director
and writ-respondent No.2, Chairman, Board of Directors
of the bank on 11.09.2002 and 13.05.2003 respectively,
which were not considered by the bank authorities vide
their orders dated 01.04.2003 and 23.06.2003
respectively.
The writ-petitioner finding no other alternative
and efficacious remedy, had moved before the High Court
Division by filing writ-petition No.5495 of 2003.
Mr. Mahbub Shafique, learned Advocate appearing for
the appellant having assailed the impugned judgment has
submitted that as per Rule 42(1)(Ka) of the Regulations,
1995 of the relevant service Rules, the charge sheet
dated 17.01.2001 was prepared and the same was served
upon the writ-petitioner and having received the same
the writ-petitioner submitted his reply on 12.02.2001 as 4
evident from Annexure-‘B’ to the writ-petition, but the
High Court Division without considering this aspect of
the case passed the impugned judgment.
He also submits that the High Court Division in the
impugned judgment and order held that the writ-
petitioner was not provided with the inquiry report, but
it transpires from final show cause notice served upon
the writ-petitioner under Rule 42(6) of the Regulations,
1995 (Annexure-‘E’ to the writ-petition) that the
inquiry report consisting of 22 (Twenty two) pages was
attached with the said final show cause notice as such
the impugned judgment and order is liable to set aside.
Mr. Mahbub lastly submits that 42(2)(Ga) of the
Regulations, 1995 empowered Ansar VDP Unnayan Bank to
form a 1(one) member or 3(three) members inquiry
committee to conduct the inquiry against the delinquent
employee and in the instant case the inquiry committee
consisted of 2(two) members for which the inquiry cannot
be vitiated as the inquiry committee was not the
decision making authority, but the High Court Division
without considering the aspect passed the impugned
judgment and order as such the same is liable to be set
aside.
However, the Respondent No.1 himself appeared in
the case and supports the impugned judgment passed by
the High Court Division.
A Division Bench of the High Court Division after
hearing the Rule made the same absolute, and thereby 5
declared the order of dismissal without lawful authority
and is of no legal effect.
Being aggrieved with the said judgment and order
the present appellant filed civil petition for leave to
appeal No.816 of 2021 and eventually, leave was granted.
Hence the present appeal.
We have considered the submissions of the learned
Advocate of the appellant as well as the Respondent
No.1, perused the impugned judgment and other materials
as placed before us.
Rule-42(Ga) of the relevant service Regulatory is
as applicable in the instance case runs as follows:
“42z (N) Eš² L¡kÑd¡l¡u A¢ik¤š² hÉ¢š²l Efl …l¦cä Bl¡fl SeÉ fkÑ¡ç L¡le
BR, a¡q¡ qCm A¢ik¡N ac¿¹l SeÉ A¢ik¤š² hÉ¢š²l fcjkÑ¡c¡l ¢ejÀ eqe
Hje HLSe ac¿¹ LjÑLaÑ¡ ¢eu¡N L¢lh Abh¡ Ae¤l¦f ¢aeSe LjÑLaÑ¡ pjeÄu
HL¢V ac¿¹ L¢j¢V NWe L¢lhz” (Underlines supplied).
From the above rule, it is crystal clear that to
impose higher punishment the authority may appoint an
inquiry officer to inquire into the matter or to form a
inquiry committee consisting of three members, but in
the instant case it is admitted fact that the inquiry
committee was formed by two persons and it is our
considered view the whole inquiry proceeding suffers
from lack of jurisdiction and the authority relying on
such inquiry report committed serious error of law in
awarding the punishment to the respondent No.1.
In view of the above, we are of the view that the
inquiry and as well as the punishment awarded on the
respondent No.1 is illegal and without jurisdiction and 6
as such there is no illegality or infirmity in the
judgment passed by the High Court Division.
Accordingly, the appeal is dismissed.
However, the period while the respondent was not in
the office shall be treated as leave without pay and the
respondent No.1 is entitled to get other benefit, if any
in accordance with law.
C.J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 133 OF 2023
(From the judgement and order dated the 29th day of June
2022 passed by the High Court Division in First
Miscellaneous Appeal No.309 of 2021).
Jahanara Begum and others : . . . . Appellants
-Versus-
Hazi Nizamuddin and another : . . . Respondents
For the Appellants : Mr. A.M. Amin Uddin, Senior Advocate,
with Mr. Mohammad Saiful Alam,
Advocate, instructed by Mr. Mohammad
Abdul Hai, Advocate-on-Record
For Respondent No. 1 : Mr. Md. Nurul Amin, Senior Advocate,
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-Record
Respondent No. 2 : Not represented
Date of hearing and judgment :
The 23th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: This civil appeal is directed against
the judgment and order dated 29.06.2022 passed by a Single
Bench of the High Court Division in First Miscellaneous
Appeal No.309 of 2021 allowing the appeal.
The facts, relevant for disposal of this civil
appeal, in brief, are that the present appellants and
respondent No.1 as petitioners filed Probate Case No.01 of
2018 before the learned Joint District Judge, 1st Court,
Cumilla stating, inter alia, that their father late Alhaj
Farid Uddin Ahmed died on 05.04.2018 after being executed
a Will being No.CIII 01 dated 22.01.2014 in favour of his 2
all sons and daughters. In order to enforce the above will
the petitioners executed an agreement on Non-Judicial
stamp with a view to implement their father’s wish and
subsequently, filed the above case for Probate.
Eventually, on 02.06.2021 the present appellants as
applicants filed an application for transposition of their
positions as opposite party Nos.2-8 from the petitioner
Nos.2-8 as they are not interested as per terms and
conditions for the Will being No.CIII-01 dated 22.01.2014
and the learned Joint District Judge, 1st Court, Cumilla
after hearing the said application allowed the same by
order No.20 dated 13.06.2021.
In this backdrop of the case, the present appellants
on 16.08.2021 filed an application under order 7, Rule 11
of the Code of Civil Procedure for rejection of the plaint
stating that the present respondent No.1 making false
statement filed the case and more than one-third property
of their deceased father has been sought for probate.
Ultimately, learned Joint District Judge, 1st Court,
Cumilla on the ground of his jurisdiction sent the case
record to the court of learned District Judge, Cumilla.
The learned District Judge, Cumilla after hearing the
application under order 7, Rule 11 of the Code of Civil
Procedure rejected the plaint on the ground that according
to the provisions of Section 213 of the Succession Act,
1925 a Mohammedan cannot establish his right as executor
or legatee.
Being aggrieved by the above verdict the present
respondent No.1 preferred First Miscellaneous Appeal
No.309 of 2021 before the High Court Division. 3
A Single Bench of the High Court Division after
hearing the said appeal by the impugned judgment and order
allowed the same and set aside the order passed by the
court below.
Feeling aggrieved by the said judgment and order the
present appellants have filed Civil Petition for Leave to
Appeal No. 2942 of 2022. Accordingly, leave was granted on
06.08.2023. Hence, this appeal.
Mr. A.M. Aminuddin, learned Senior Advocate,
appearing for the appellants made submissions in line with
grounds upon which leave was granted. In addition the
learned Advocate submits that it is statutory provision
of law, a Muslim may dispose of his property by will is
limited, in two way; first as regards the persons to whom
the property may be bequeathed, and secondly, as regards
the extent to which the property may be bequeathed but it
transpires from the instant petition of the probate
(plaint) that the alleged executor petitioner did not
specify the extent of property to be bequeathed and also
did not mention the name of the person(s) to whom the
property will be bequeathed. So it is as clear as day
light, the probate petition is apparently not in form, as
such the learned District Judge, Cumilla dismissed the
case summarily on point of maintainability but the
court of appeal without considering such legal aspect
allowed the appeal and gave direction to the District
Judge, Cumilla to proceed with the probate case which has
occasioned miscarriage of justice.
The learned Advocate further submits that the probate
case was filed by the present respondent No. 1 by 4
impleading the present appellants as petitioner Nos. 2 to
8; subsequently upon an application by the present
appellants, the petitioner Nos. 2 to 8 were transposed as
opposite party Nos. 1 to 7 vide order No. 23 dated
13.06.2021 of probate case No. 1 of 2018, the present
respondent No. 1, i.e. the petitioner No. 1 of the probate
case did not challenge the said order of transposition in
the superior court. So it is apparent that the petitioner
No. 1 of the probate case by practicing fraud impleaded
the present appellants as co-petitioner and tried to
obtain an order of probate in favour of him by fraudulent
way. As granting of probate is an equitable relief, so no
one can get advantage of his own fraud, considering aspect
such the learned District Judge, Cumilla dismissed the
probate case summarily, but the High Court Division
without considering the legal perspective of the matter
allowed the appeal. The learned Advocate also submits that
it reveals from the face of the plaint (petition) of the
probate case it does not contain the essence required by
law for filing a probate case to confirm a will executed
by a Muslim, so apparently the probate case is not
maintainable, accordingly the probate case should be
burried at its inception; so no further time is consumed
in a fruitless litigation and in such a situation the
court may invoke it inherent power by taking re course of
section 151 of the Code of Civil Procedure, accordingly
the dismissal order passed by the District Judge is just
and proper but the High Court Division without considering
the legal proposition allowed the appeal by the impugned 5
judgment and order which has occasioned miscarriage of
justice.
Mr. Md. Nurul Amin, learned Senior Advocate,
appearing for the respondents makes submissions supporting
the impugned judgment and order of the High Court
Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division as well as
the judgment and order of learned District Judge and other
materials as placed before us.
It transpires for the judgment and order passed by
the learned District Judge, Cumilla, that he having
considered the relevant provisions of law, i.e. section
57, 58 and 213 of the Succession Act, 1925 came to a
definite finding that the said provision shall not apply
to Will to the property of Mohammedan, rather those
provisions are applicable only to the property of Hindu,
Buddhist, Sikh or Jaina. However, the High Court Division
without adverting to the said legal finding of the learned
District Judge, most erroneously passed the impugned
judgment holding that the controversy between the parties
can only be resolved by taking evidence.
The provision of sections 57, 58 and 213 of the
Succession Act, 1925 runs as follows:
“57. The provisions of this Part which are set out in Schedule III
shall, subject to the restrictions and modifications specified therein,
apply-
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina, on or after the first day of September, 1870, within the
territories of Bangladesh and 6
(b) to all such wills and codicils made outside those territories and
limits so far as relates to immoveable property situate within
those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina on or after the 1st day of January, 1927, to which those
provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.
58. (1) The provisions of this Part shall not apply to testamentary
succession to the Property of any Muslim nor, save as provided by
section 57, to testamentary succession to the property of any Hindu,
Buddhist, Sikh or Jaina; nor shall they apply to any will made before the
first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for
the time being in force, the provisions of this Part shall
constitute the law of Bangladesh applicable to all cases of
testamentary succession.
213. (1) No right as executor or legatee can be established in any
Court of Justice, unless a Court of competent jurisdiction in Bangladesh
has granted probate of the will under which the right is claimed, or has
granted letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by
Muslims, and shall only apply in the case of wills made by any Hindu,
Buddhist, Sikh or Jaina where such wills are of the classes specified in
clauses (a) and (b) of section 57.” (Underlines supplied).
Section 117 of the Mohammedan Law provides as follows:
117. Bequests to heirs A bequest to an heir is not valid unless the
other heirs also consent to the bequest after the death of the testator. Any
single heir may consent so as to bind his own share.
A bequest to an heir, either in whole or in part, is invalid, unless
consented to by other heir or heirs and whosoever consents, the bequest
is valid to that extent only and binds his or her share. Neither inaction
nor silence can be the basis of implied consent.
Having considered the above provisions of law as well
as the facts and circumstances of the present case, we
have no hesitation to concur with the findings of the 7
learned District Judge, Cumilla, that the alleged probate
case filed by the respondent is not maintainable.
Further, it also transpires from the plain reading of
the plaint of the probate case that the respondent in fact
seeks partition of his paternal property in the garb of
issuing probate in favour of him.
It is now well settled that when on the face of the
plaint, it is found that the suit is barred by any law or
is foredoomed and if it is allowed to be proceeded with,
it will amount to an abuse of the process of the Court,
the Court is empowered to reject the plaint in exercising
its inherent power.
When a suit is barred by any law, then question of
taking evidence is redundant.
In the case of Abdul Jalil and others vs. Islamic Bank Bangladesh Ltd.
and others, reported in 53 DLR (AD), 12 this Division has held
that “......as the ultimate result of the suit is as clear as daylight such a suit
should be burried at its inception so that no further time is consumed in a fruitless
litigation.” Similar view also has been expressed by this
Division in the cases of Guiness Peat (Trading) Limited Vs. Md. Fazlur
Rahman, reported in 44 DLR (AD), 242; Rasheda Begum vs. M.M. Nurussafa
and others, reported in 24 BLD (AD) 223.
The High Court Division without considering the
pertinent legal issue that the provisions of Succession
Act and Mohammedan law the probate case is not
maintainable, passed the impugned judgment simply holding
that without taking evidence, the dispute between the
parties cannot be resolved, and as such committed serious
error of law and the impugned judgment is liable to be set
aside. 8
Accordingly, the appeal is allowed, without, any
order as to costs.
The judgment and order dated 29.06.2022 passed by the
High Court Division in F.M.A. No.309 of 2021 is set aside.
C. J.
J.
J.
J.
B.S./B.R./*Words-2001*
|
=1=
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2835 OF 2023
(From the order dated 08.11.2023 passed by the High Court Division in
Criminal Miscellaneous Case No.64691 of 2023)
The State ……..….Petitioner
-Versus-
Zainul Abedin @ Advocate Zainul Abedin
and another
...…..…Respondents
For the petitioner : Mr. A.M. Amin Uddin, Attorney General, with
Mr. Mohammad Saiful Islam, Assistant
Attorney General, instructed by Mr. Md. Helal
Amin, Advocate-on-Record.
For respondent
No.1
:
Mr. Sagir Hossain, Advocate, instructed by Mr.
Md. Zahirul Islam, Advocate-on-Record.
For respondent
No.2
: Not represented.
Date of hearing : The 06th day of March, 2024.
O R D E R
The petitioner has filed the instant Criminal Petition for Leave
to Appeal against the impugned order dated 08.11.2023 passed by the
High Court Division in Criminal Miscellaneous Case No.64691 of
2023.
It appears from the order dated 08.11.2023 passed by the High
Court Division that the respondents have been enlarged on
anticipatory bail till submission of the police report subject to
furnishing bail bond to the satisfaction of the learned Chief
Metropolitan Magistrate, Dhaka.
=2=
Mr. A.M. Amin Uddin, learned Attorney General appearing on
behalf of the petitioner-State submits that the anticipatory bail
granted by the High Court Division till filling of the police report is
against the principle as enunciated in the case of Durnity Daman
Commission and another vs. Dr. Khandaker Mosharraf Hossain and
another reported in 66 DLR (AD) 92.
We have gone through the petition and the decision cited by
the learned Attorney General reported in 66 DLR (AD) 92. We have
also taken into consideration of the judgment and order given in the
case of State vs. Md. Kabir Biswas reported in 75 DLR (AD) 60, wherein
it has been held that “It is pertinent to mention here that the latitude
given to the High Court Division while exercising the discretionary power of
granting anticipatory bail must be guided by the principles laid down by the
Appellate Division. But the High Court Division passed the impugned
orders overstepping its limits. We have given our anxious consideration to
such unwarranted attitude of the High Court Division. Such derogatory
trend of the High Court Division shall leave an adverse impression upon the
criminal to get an upper hand through the hands of law. In such backdrop,
our considered view is that the High Court Division and all other courts are
bound to follow the law and propositions enunciated by this Division in the
case of State vs. Professor Dr. Morshed Hasan Khan and others (supra). We
also direct the High Court Division to refrain from unscrupulous exercise of
the power of granting anticipatory bail.” and at the same time, we are
not unaware about the decision given in the case of State vs. Abdul
Wahad Shah Chowdhury reported in 51 DLR (AD)242. The principle as
=3=
enunciated in all the cases mentioned above is that the
person/persons should not be allowed to remain on anticipatory bail
for an indefinite period. Thus, the High Court Division failed to
consider the principle as enunciated in the aforesaid decisions while
enlarging the respondents on anticipatory bail till filing of the police
report. Because sometime investigating agencies require more time to
submit their report for the purpose of proper investigation. In the
circumstances, the accused is not entitled to enjoy the privilege of
anticipatory bail till filing of the police report. Considering the above,
we are inclined to modify the order dated 08.11.2023 passed by the
High Court Division.
Accordingly, the order dated 08.11.2023 passed by the High
Court Division is modified as under:
“The respondents shall remain on bail for a period of 8(eight)
weeks from date; and, thereafter, they shall surrender before
the Court of Chief Metropolitan Magistrate, Dhaka and in case
of surrender the concerned Court below shall consider the
prayer for bail, if any, considering that they did not misuse the
privilege of bail.”
With the above, the Criminal Petition for Leave to Appeal is
disposed of.
C.J.
J.
J.
The 06th March, 2024
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.519 OF 2023
(From the judgment and order dated 06.11.2022
passed by the High Court Division in Writ
Petition No.3351 of 2022)
Rukhsana Ahmed Ruxi and
others
… Petitioners
=VERSUS=
Bangladesh, represe nted by
the Secretary, (Secondary and
Higher Education), Ministry
of Education, Bangladesh
Secretariat, Ramna, Dhaka and
others
…… Respondents
For the Petitioners
:Mr. Probir Neogi, Senior
Advocate with Mr. Tanjib-
ul-Alam, Senior Advocate
and Mr. Mohamma d Bakir
Uddin Bhuiyan, Advocate
instructed by Mr. Zainul
Abedin, Advocate-on-
Record.
For the Respondent
Nos.1-4
:Mr. Mohammad Saiful
Alam, Assistant Attorney
General, instructed by
Mr. Haridas Paul ,
Advocate-on-Record.
For the respondent
Nos.5-6
:Mr. Mo tahar Hossain,
Senior Advocate
instructed by Mr. 2
Mohammad Ali Azam,
Advocate-on-Record
For the respondent
Nos.7-8
:Not represented
Date of hearing and
judgment on
:The 7th December, 2023
J U D G M E N T
Md. Ashfaqul Islam, J:
This Civil Petition for Leave to Appeal is
directed against the judgment and order dated
06.11.2022 passed by the High Court Division in
Writ Petition No.3351 of 2022 discharging the
Rule with observations.
The writ petitioners who are teachers of
Lalmatia Mohila Colleg e whose salary was
degraded after the nationalization of the
College filed the writ petition being Writ
Petition No.3351 of 2022 before the High Court
Division challenging the arbitrary degradation
of the present position of the writ petitioner 3
Nos.1, 4, 5 , 7, 9, 11, 12, 15, 16, 23 and 26
from the post of Associate Professor to the
post of Lecture r and the present position of
the writ petitioner Nos.2, 3, 6, 10, 13, 14,
17, 18, 19, 20, 21, 22 and 24 from the post of
Assistant Professors to the post of Lectu rers
and the position of the writ petitioner No.8
from the post of Associate Professor to the
post of Demonstrator of Lalmatia Mohila
College, now Lalmatia Government Mohila College
which is evident from Annexure -M issued under
signature of the writ respon dent No.6,
Principal, Lalmatia Government Mohila College,
Lalmatia, Mohammadpur, Dh aka-1207 and thereby
reducing the existing monthly salaries of the
writ petitioners without any written
communication to the writ petitioners as 4
evident from the representat ions made by the
writ petitioners.
The case, made out in the writ petition
before the High Court Division, in brief, is as
follows:
The writ petitioner Nos.1 -7 and 9 -26
obtained Bachelor degree with Honours and
Masters Degree from different universities and
thus having requisite qualifications got
appointment as Lecturer on different dates in
different departments of the Lalmatia Mohila
College, Lalmatia, Dhaka (the College). The
writ petitioner No.8 also got an appointment
letter as Demonstrator (Physics) on 16.07.2021
in the said College. Accordingly, joining the
said College, the writ petitioners have been
discharging their respective duties. The writ 5
petitioner Nos.1, 4, 5, 7, 9, 11, 12, 15, 16,
23 and 26 subsequently got promotion on
different da tes to the post of Assistant
Professor and then to the post of Associate
Professor. The writ petitioner Nos.2, 3, 6, 10,
13, 14, 17, 18, 19, 20, 21, 22 and 24 on also
got promotion to the post of Assistant
Professor on different dates and the writ
petitioner No.8 (initially Demonstrator) got
promotion to the post of Lecturer and then to
the post of Assistant Professor.
Lalmatia Mohila College was affiliated
under the National University established under
the National University Act, 1992 and
recognized by the Directorate of Secondary &
Higher Education, Dhaka and the services of the
writ petitioners were regulated under the Non - 6
Government Degree College Teachers Service
Regulations, 1994 (in short, the Regulations,
1994). All the writ petitioners are the regular
and permanent teachers of the Lalmatia Mohila
College and the Governing Body of the College
took decision on 23 -12-2016 to pay salary as
per National Pay Scale , 2015 and the writ
petitioners were receiving their salary as per
National Pay Scale, 2015.
In the year 2019 , the nationalization
process of Lalmatia Mohila College was started
under the “plL¡l£ LmS ¢nrL J LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2018” (in
short, the Absorption Rules, 2018) which was
framed repealing the earlier Rules, namely,
“S¡a£uLleL«a LmS ¢nrL J A -¢nrL LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2000 ” (in
short, the Absorption Rules, 2000). 7
The College has been nationalized by the
Ministry of Education following the
Notification contained in Memo No.37.00.0000
.370.39.001.18.03 dated 04.01.2022 with effect
from 31.12.2021, but the service of teachers
and employees of the College is under process
for absorption.
In the circumstances, as per office order
issued by the Ministry of Education dated
27.08.2018, the financial transaction including
all other matters of the College are being done
with the joint signatures of the Deputy
Commissioner, Dhaka and the Principal till
completion of the process of absorption of
service of the teachers and employees.
Although the writ petitioners have been
drawing their sala ries according to their 8
designated posts and entitlement, but the writ
respondents without following the existing
provisions of law proposed and compelled all
the teachers (Assistant Professor and Associate
Professor) to receive salary in the post of
Lecturer and to the writ petitioner No.8 in the
post of Demonstrator from the month of January,
2022. In this backdrop , the writ petitioners
finding no other alternative efficacious
remedies moved the abovementioned writ petition
before the High Court Division and obtained the
Rule.
The writ -respondent No.3, the Director
General, Directorate of Secondary and Higher
Secondary Education and the writ respondent
No.6, Principal, Lalmatia Government Mohila
College, Lalmatia, Mohammadpur, Dhaka contested 9
the Rule by f iling separate affidavit-in-
oppositions.
A Division Bench of the High Court
Division upon hearing the parties discharged
the Rule by the impugned judgment and order
dated 06.11.2022. The High Court Division
observed that, the writ petitioners are
eligible for absorption only to the post of
Lecturer and Demonstrator (writ petitioner
No.8) and after absorption, since there is
scope for promotion in accordance with Rule 12
of the Rules, 2018 in the vacant post of
absorbed teachers, the writ respondents shal l
consider the writ petitioners’ promotion in
those promoted posts subject to vacancy.
Being aggrieved, by the impugned judgment
and order of the High Court Division, the writ 10
petitioners as petitioner Nos.1-20 herein filed
the instant civil Petition f or leave to appeal
before this Division.
Mr. Probir Neogi , the learned Senior
Advocate appearing on behalf of the petitioners
submits that, from the list of writ petitioners
(11 Associate Professors, 14 Assistants
Professors and 1 Lecturer) along with t heir
particulars embodied in the impugned judgment
and order it is evident that, the writ
petitioner Nos.1 -2, 4 -12,15-17,20-24 and 26
were appointed in between 1995 to 2004 and the
writ petitioner Nos.3,13 -14, and 18 -19 were
appointed in the service in the year 2008 and
the writ petitioner No.25 was appointed in the
year 2011 and the High Court Division relying
on the circular dated 17.04.2015 (actual date 11
would be 17.04.2005) issued on the basis of the
service Regulations, 1994, discharged the Rule
although the aforesaid circular dated
17.04.2005 was abolished by issuance of new
service regulation namely, “ S¡a£u ¢hnÄ¢hcÉ¡m®ul A¢di¥š²
®hplL¡l£ LmS ¢nrLcl Q¡L¥l£l naÑ¡hm£ ®l…mne, 2015 ”(in short,
the Service Regulations, 2015) wherein no such
requirement of approval from syndicate for
appointment/promotion of Assistant Professor,
Associate Professor and Professor in National
University affiliated degree college is
stipulated and thus the High Court Division
committed serious illegality in discharging the
rule relying on an abolished circular and, as
such, the impugned judgment and order of the
High Court Division is liable to be set aside. 12
He further submits that, the writ
petitioner No.1 got promotion as Assistant
Professor on 13.11.2002, the writ petitioner
No.5 got promotion as Assistant Professor on
14.11.2002, the writ petitioner No.7 got
promotion as Assistant Professor on 06.10.2003,
the writ petitioner No.9 got promotion as
Assistant Professor on 14.11.2002, the writ
petitioner No.23 got promotion as As sistant
Professor on 14.01.2002 and the writ petitioner
No.26 got promotion as Assistant Professor on
06.10.2003 and admittedly the circular in
question was issued on 17.04.2005 and it is not
the contention of any of the contesting writ
respondents that th e promotion of the writ
petitioners are defective due to the clause
No.(vii) and (ix) of the circular dated 13
17.04.2005, but upon making third case, the
High Court Division relying on the abolished
circular dated 17.04.2005, discharged the Rule
by the impugned judgment and order in wholesale
manner and thus committed gross illegality and
therefore, the impugned judgment and order of
the High Court Division is liable to be set
aside.
He also submits that, from the list of
writ petitioners along with their pa rticulars
embodied in the impugned judgment and order it
further appears that, the writ petitioner No.2
got promotion as an Assistant Professor on
25.04.2016, the writ petitioner No.3 got
promotion as an Assistant Professor on
09.04.2016, the writ petitio ner No.13 got
promotion as an Assistant Professor on 14
07.04.2016, the writ petitioner No.14 got
promotion as an Assistant Professor on
25.04.2016, the writ petitioner No.18 got
promotion as an Assistant Professor on
09.04.2016, the writ petitioner No.19 got
promotion as an Assistant Professor on
09.04.2016, the writ petitioner No.21 got
promotion as an Assistant Professor on
25.04.2016 and the writ petitioner No.22 got
promotion as an Assistant Professor on
25.04.2016 following the provisions of existing
law i.e. the said Service Regulations, 2015
which came into force on 13.06.2015 in place of
earlier Service Regulations, 1994 and
consequently, the circular under reference
No.01(162) S¡a£x¢hx/fËn¡x 92/(77)/1 dated 17.04.2005 was
also abolished and the High C ourt Division 15
relying on the aforesaid abolished circular has
taken away the vested right of the aforesaid
writ petitioners by passing the impugned
judgment and order dated 06.11.2022 and thus
committed serious illegality.
Next he further submits that, approval for
nationalization of Lalmatia Mohila College and
embargo on appointment and on promotion came on
26.02.2019 and all the writ petitioners were
appointed and got promotion in their respective
posts in the aforesaid college before the date
of embargo and subsequently the college was
nationalized vide memo dated 04.01.2022 with
effect from 30.12.2021 and one Mr. Md.
Enayetullah without having any requisite
qualification got an appointment letter as an
Assistant Professor in the aforesaid college on 16
the date of putting embargo that is on
26.02.2019 and he is receiving higher salary
holding the post of Assistant Professor and
thus the writ respondents have shown utter
discriminatory treatments towards the writ
petitioners and the High Court Division allowed
the aforesaid discrimination in passing the
impugned judgment and order and the same is
liable to be set aside.
Finally, he submits that, t he writ
petitioners are the regular teachers of
Lalmatia Mohila College, now Lalmatia
Government Mohila College and the petitioners
were appointed and promoted in their respective
posts following the prevailing Rules and
Regulations and they have no disqualifications
and they are to be absorbed in the Lalmatia 17
Government Mohila College as per provision of
Rule 4 read with Rules 5 and 6 of the “ plL¡¢lL«a
LmS ¢nrL J LjÑQ¡l£ Bš£LlZ ¢h¢dj¡m¡, 2018 ”, but the High
Court Division fell into error in interpreting
the provision of the “plL¡¢lL«a LmS ¢nrL J LjÑQ¡l£ Bš£LlZ
¢h¢dj¡m¡, 2018” in passing the impugned judgment and
order dated 06.11.2022 and thus committed
illegality.
On the other hand, Mr. Mohammad Saiful
Alam, the learned Assistant Attorney General
appearing on behalf of the respondent No s.1-4
made submissions in support of the impugned
judgment and order of the High Court Division.
Mr. Motahar Hossain , the learned Senior
Advocate appearing on behalf of the respondent
Nos.5-6 s ubmits that, earlier the writ
petitioners executed undertaking not to claim 18
Government f und by way of their promotion.
Moreover, out of 118 teachers except the few
writ petitioners, all other teachers have been
receiving the salary in the post of Lecturer
and even the writ petitioner Nos.9 and 23 being
MPO enlisted in the post of Lecturer, ar e
receiving salary under the MPO scheme . Hence,
the High Court Division rightly discharged the
Rule and passed the impugned judgment and order
and therefore, he prays for dismissal the
instant leave petition.
We have heard the learned senior Advocates
of both sides as well as the learned Assistant
Attorney General. Perused the impugned judgment
of the High Court Division and other papers on
record. 19
The High Court Division at the outset
initiated the question of maintainability of
the writ petition and upon plausible reasons
decided that, the writ petition is
maintainable. But, the writ petitioners’ claim
of absorption in the nationalized college has
not been accepted by the High Court Division.
Accordingly, the High Court Division found
that, the writ r espondent Nos.4 , Deputy
Commissioner, Dhaka and 6, Principal, Lalmatia
Government Mohila College , Lalmatia,
Mohammadpur, Dhaka-1207 rightly took step s to
pay the salary to the writ petitioners at the
scale of lecturer from the date of
nationalization in ac cordance with Rule 4 of
the Absorption Rules, 2018. The High Court
Division also held that, the two posts 20
(Professor and Associate professor) have to be
incorporated in Rules 2(9) and 5 of the
absorption Rules, 2018. The writ petitioners
are eligible only for absorption to the post of
Lecturer and Demonstrator (petitioner No.8) and
after absorption there is scope for promotion
in accordance with the rule 12 of the Rules,
2018. For the sake of better understanding let
us reproduce the said Rules verbatim below:
2(9)z “plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£ ” AbÑ ®L¡e¡
plL¡¢lL«a LmS AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL h¡ fËi¡oL fc
LjÑla Hje ®L¡e¡ ¢nrL h¡ ®L¡e¡ fc LjÑla Hje ®L¡e¡ LjÑQ¡l£,
¢k¢e j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ¢ehÑ¡¢Qa ®hplL¡¢l LmS
¢eu¡Nl Efl ¢eod¡‘ ¡ Bl¡f L¢lh¡l a¡¢lMl f§hÑ, ®hplL¡¢l
LmSl SeÉ fËk¡SÉ ¢eu¡N pwœ²¡¿¹ Bcn, ¢ecÑn h¡ e£¢aj¡m¡l
Ad£e, ¢eu¡NfË¡ç qCu¡ AhÉ¡qai¡h X~š² LmS LjÑla BRe;
21
4z fc ÙÛ¡e¡¿¹l - j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ®L¡e¡ ¢ehÑ¡¢Qa
®hplL¡¢l LmS ¢eu¡Nl Efl ¢eod¡‘ ¡ Bl¡f L¢lh¡l a¡¢lM
fkÑ¿¹, ®hplL¡¢l LmSl SeÉ fËk¡SÉ ¢eu¡N pwœ²¡¿¹ Bcn, ¢ecÑn
h¡ e£¢aj¡m¡ Ae¤k¡u£, pw¢nÔø LmSl ¢eu¡NfË¡ç ¢nrL J
LjÑQ¡l£NZl ¢hcÉj¡e fcpj§q, plL¡¢lLlZl a¡¢lM qCa Eš²
plL¡¢lL«a LmSl fc ¢qp¡h ÙÛ¡e¡¿¹¢la qChz
5z AÙÛ¡u£i¡h ¢eu¡Nz- (1) ¢eu¡NL¡l£ LaѪfr, j¡dÉ¢jL J EµQ ¢nr¡
A¢dcçl LaѪL ®L¡e¡ ¢ehÑ¡¢Qa ®hplL¡¢l LmS ¢eu¡Nl Efl
¢eod¡‘¡ Bl¡fl a¡¢lM pw¢nÔø LmSl -
(L) AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL J fËi¡oL fc
LjÑla fËu¡Se£u ®k¡NÉa¡pÇfæ ¢nrLNZL, kb¡œ²j,
AdÉr (ee -LÉ¡X¡l), Ef¡ dÉr (ee -LÉ¡X¡l), pqL¡l£
AdÉ¡fL (ee-LÉ¡X¡l) J fËi¡oL (ee -LÉ¡X¡l) ¢qp¡h,
Hhw
(M) LjÑQ¡l£NZL ü-ü fc, - 22
Eš² LmS plL¡¢lLlZl a¡¢lM qCa, ¢h¢d 6
Hl ¢hd¡e p¡fr, Bš£LlZl EŸnÉ AÙÛ¡u£i¡h
¢eu¡N fËc¡e L¢lhz
(2) plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£NZL ÙÛ¡e¡ ¿¹¢la
fc hÉa£a AeÉ ®L¡e¡ fc AÙÛ¡u£i¡h ¢eu¡N fËc¡e Ll¡
k¡Ch e¡z
hÉ¡MÉz - HC ¢h¢da E¢õ¢Ma “fËu¡Se£u ®k¡NÉa¡ ” h¢ma
®hplL¡¢l LmSl ¢nrL fc ¢eu¡N m¡il SeÉ fËu¡Se£u
®k¡NÉa¡L h¤T¡Chz
12z fc¡æ¢a z- plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£NZl
fc¡æ¢ak¡NÉ ÙÛ¡e¡¿¹¢la fcpj§q pw¢nÔø LmS LjÑla Bš£Lªa ¢nrL
J LjÑQ¡l£NZ fc¡æ¢al SeÉ ¢hh¢Qa qChe Hhw Eš² ®rœ pw¢nÔø
LmSl plL¡¢lLlZl AhÉh¢qa f§hÑl, ®rœja, ¢hou h¡ fc¢i¢šL
®SÉùa¡l ¢i¢ša, plL¡l LaѪL ¢edÑ¡¢la naÑ f§lZ p¡fr, fc¡æ¢a
fËc¡e Ll¡ k¡Chz 23
The High Court Division relying on the
circular dated 17.04.2005 issued on the basis
of the Service Regulations, 1994 discharged the
Rule. But, unfortunately we have found that,
the circular on which the High Court Division
relied was abolished by that time with th e
introduction of the new service regulations
wherein no such requirement of approval from
syndicate for appointment/promotion of the
Assistant Professor, Associate Professor and
Professor in the National University affiliated
degree College has been stipulated.
Mr. Probir Neogi, the learned Senior
Counsel rightly contended that, it is not the
contention of the writ respondents that, the
promotion of the writ petitioners are defective
due to the clause Nos. (vii) and (ix) of the 24
Circular dated 17. 04.2005, but, upon making
third case, the High Court Division relying on
that abolished circular discharged the Rule
which is not tenable in the eye of law. This
submission stands with all force. He further
went on saying that, the respondents have shown
utter discriminatory treatments towards the
writ petitioners and the High Court Division
affixed permanent seal in the said deed done
deliberately in passing the impugned judgment
and order and thus committed illegality.
Palpably, the High Court Division ignored
the important aspects of the prolonged services
rendered by the petitioners and the arbitrary
degradation of their post and salary expressly
flouting fundamental right s of the writ 25
petitioners as guaranteed under Articles 27,
29, 31 and 40 of the Constitution.
The writ petitioners are the regular
teachers of the Lalmatia M ohila College, now
Lalmatia Government M oahila College and they
were appointed and promoted in their respective
posts in accordance with the prevailing Rules
and Regulations and they have no
disqualifications to be absorbed in the
Lalmatia Government Mohila College as per
provisions of Rule 4 read with rule 5 and 6 of
the Rules, 2018 as discussed above , but the
High Court Division fell into error in
interpreting the provision s of the same Rules
and came into a wrong decision in passing the
judgment and order impugned against. 26
The submissions of the respondents as
aforesaid merit no substance being fallacious
and bereft of any consideration whatsoever.
With all the vehemence and authority we
are declaring that, the petitioners herein
shall have to be treated in accordance with the
new law as in the manner all of their
colleagues have been treated without any
discrimination.
The petitioner Nos.8, 9, 17, 18 and 20
submitted relevant documents by an application
for acceptance of additional paper book dated
23-11-2023 and they have no disqualification to
be absorbed in the post of Assistant Professors
in Lalmatia Government Mohila College, Dhaka.
Accordingly, this petition is di sposed of.
The impugned judgment and order of the High 27
Court Division is set aside. The respondents
are directed to conclude the nationalization
process of services of the petitioners as a
Teachers of Lalmatia Government Mohila College,
Lalmatia, Mohammadpur, Dhaka in accordance with
law in the manner as it has already been done
in case of their colleagues within 3(three)
months.
J.
J.
J.
J.
J.
The 7th December, 2023_
Hamid/B.R/*Words 2,998*
28
|
1
PRESENT
Mr. Justice Borhanuddin,
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1062 OF 2018
(From the judgment and order dated the 24th day of August, 2017 passed by the
High Court Division in Writ Petition No.4716 of 2017).
Government of Bangladesh and
others
: . . . Petitioners
-Versus-
Sonia Khatun and others : . . . Respondents
For the Petitioners
: Mr. Sk. Md. Morshed, Additional
Attorney General, instructed by
Ms. Mahmuda Begum,
Advocate-on-Record
For Respondents :
Mr. Mirza Salah Uddin Ahmed,
instructed by Mr. Mohammad Abdul
Hai, Advocate-on-Record
Date of hearing and judgment : The 28th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: Delay of 186 days in filing this
civil petition for leave to appeal is condoned.
This civil petition for leave to appeal is directed
against the judgment and order dated the 24.08.2017 passed by
the High Court Division in Writ Petition No.4716 of 2017
making the Rule absolute.
The relevant facts leading to the filing of the present
leave petition are that the present respondents-writ
petitioners having required qualifications, applied for the
post of Assistant Teachers in different primary schools.
Accordingly, through interview and examination process, they 2
were appointed as Assistant Teachers of those schools. The
particulars of their appointment and joining in the
Registered Non-Government Primary Schools are given in the
writ petition. In the writ petition it was stated that, the
schools of the writ petitioners were established in
accordance with the provisions under the "‡emiKvix D‡`¨v‡M cÖv_wgK we`¨vjq
¯’vcb, cwiPvjbv I wbe܇bi kZ© bxwZgvjv' as published by the Ministry of
Primary and Mass Education as well as the Rules and
notifications made by the Government time to time. Pursuant
to the decision of the Government, the Gazette notification
dated 17.01.2013 which was issued for scrutiny of Non-
Government Primary schools and Teachers for nationalization.
Thereafter, the Government, vide Gazette Notification dated
08.10.2013, as published in the Gazette on 27 October, 2013,
nationalized 429 Registered Non-Government Primary, Schools
as Government Schools with effect from 01.01.2013. In such
process, the schools of the writ petitioners were also
nationalized being serial No. 296. 297 and 298 in the said
Gazette. Accordingly, the Government, through Ministry of
Primary and Mass Education, started scrutiny process for
selecting the teachers of those Primary Schools for
absorption under the revenue head. In such process, a list
was published with the names of the writ petitioners and
others on 30.06.2016 asking the concerned to send amendments,
if any, to the said list. Accordingly, after scrutiny, the
concerned District Education Officer, Mirpur, Dhaka sent a
list of the writ petitioners along with others on 28.07.2016
for their absorption under revenue head as against Bawniabadh
A-Block Government Primary School, Mirpur, Dhaka, Bawniabad
E-Block Government Primary School Mirpur, Dhaka and Sheikh 3
Kamal Government Primary School Mirpur, Dhaka. However, the
Ministry, vide Office Order dated 01.12.2016, appointed some
of the teachers from the said list as against the said
schools excluding the names of the writ petitioners without
assigning any reason. Under such circumstances, they moved
before the High Court Division by filing writ petition.
The Rule was opposed by writ respondent No.6 though no
affidavit-in-opposition had been filed.
In due course after hearing and considering the
materials on record the High Court Division made the Rule
Nisi absolute directing the writ respondents to appoint the
writ petitioners as Assistant Teachers as against their
respective primary schools within a period of 30 (thirty)
days from receipt of the copy of this judgment riving their
service and other benefits with effect from 01.01.2013.
Being aggrieved by the said judgment and order, the writ
respondents have preferred this civil petition for leave to
appeal before this Division.
Mr. Sk. Mohammad Morshed, learned Additional Attorney
General appearing on behalf of the leave petitioners having
placed the notification dated 17.01.2013 in regard to the
"‡emiKvwi cÖv_wgK we`¨vjq RvZxqKiY Ges Kg©iZ wkÿK‡`i PvKzwi RvZxqKi‡Yi wm×všÍ' submits that
in view of the said notification there is no scope to appoint
the writ petitioners-respondents as Assistant Teachers as
against their respective primary schools as they are the
excess teachers and in the said schools as per the Nitimala
one Head Master and 3(three) other teachers have already been
appointed. 4
Mr. Mirza Salah Uddin Ahmed, learned Advocate appearing
for the respondents makes submissions in support of the
impugned judgment and order passed the High Court Division.
We have considered the submissions of the learned
Advocates for the parties concerned, perused the impugned
judgment and order of the High Court Division and other
connected papers on record.
“Clause 4.2” of the notification dated 07.01.2013
relating to the "‡emiKvwi cÖv_wgK we`¨vjq RvZxqKiY Ges Kg©iZ wkÿK‡`i PvKzix miKvwiKi‡Yi
wm×všÍ' runs as follows:
4 . 2 w k ÿ K m s µ v š Í t
""(K) GgwcIfz³ mKj wkÿ‡Ki PvKzix miKvwiKi‡Yi Dchy³ we‡ewPZ nB‡e;
(L) we`¨vj‡q Kg©iZ wkÿK‡`i PvKzix‡Z †hvM`vbKvjxb mg‡q ev Zvwi‡L cÖ‡hvR¨/cÖ‡qvRbxq
†hvM¨Zv _vwK‡Z nB‡e| Z‡e h_vh_ cÖwµqvq wb‡qvMK…Z nBqv _vwK‡j PvKzix miKvwiKi‡bi
cieZx© 3 erm‡ii g‡a¨ wba©vwiZ ‡hvM¨Zv AR©‡bi k‡Z© cÖ‡qvRbxq †hvM¨Zvwenxb wkÿK‡KI
we‡ePbv Kiv hvB‡e;
(M) BZtc~‡e© GgwcIfy³ nBqv‡Q wKš‘ k„•LjvRwbZ wKsev cªkvmwbK A_ev Ab¨wea Kvi‡Y eZ©gv‡b
GgwcI ¯’wMZ iwnqv‡Q GBiƒc wkÿK‡KI we‡ePbv Kiv hvB‡e;
(N) we`¨vj‡q mvaviYfv‡e 1 Rb cÖavb wkÿKmn 4 Rb wkÿ‡Ki c` _vwK‡e| Z‡e 400 R‡bi
AwaK QvÎ-QvÎx Av‡Q Ggb we`¨vj‡q 5g wkÿ‡Ki c` m„wRZ _vwK‡j Zvnv we‡ePbv Kiv
hvB‡e;
(O) cÖ‡qvRbxq †hvM¨Zv Ges wba©vwiZ c×wZ‡Z wb‡qvMK…Z nBqv _vwK‡j wbav©wiZ eq‡mi Kg
A_ev †ekx eq‡m †hvM`vbKvix wkÿK‡K cÖ‡qvRbxq †hvM¨Zv _vKv I wbav©wiZ c×wZ‡Z
wb‡qvMK…Z nIqv mv‡c‡ÿ we‡ePbv Kiv hvB‡e|Ó(Underlines supplied).
In view of the provision of clause 4.2 it is abundantly
clear that the approved limit of making appointment of the
teachers in a nationalized school were 4(four) and one of
which will be Headmaster; and one more teacher would be
considered if number of students are more than 400. Here the
writ petitioners were all beyond the approved limit. The High
Court Division without going into the depth of the position
and status of the writ petitioners made the Rule absolute
without considering the existing organogram of the 5
nationalized school, i.e. these primary schools cannot be
made over 4(four) persons as teachers.
Further, the issue involved in this case has already
been decided in Civil Petition for Leave to Appeal No. 4234
of 2018.
In view of the above, we are inclined to interfere with
the impugned judgment and order; however, since, we have
heard both the parties at length, we are inclined to dispose
of the civil petition for leave to appeal without granting
any leave to avoid further delay in disposing of the case.
Accordingly, the civil petition for leave to appeal is
disposed of. The impugned judgment and order dated 24.08.2017
passed by the High Court Division is set aside.
J.
J.
J.
J.
J.
B.S./B.R./*Words-1,142*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 173 OF 2016
(From the judgment and order dated 5th of March, 2012 passed by this Division in Civil
Petition for Leave to Appeal No. 15 of 2011).
Government of Bangladesh, represented by the
Secretary, Ministry of Communication, (at
present Ministry of Railway), Bangladesh
Secretariat, Ramna, Dhaka
Appellant
-Versus-
Sher-E-Bangla Market Dokander Bohumukhi
Samabay Samity Limited, represented by its
Secretary, Abdur Rashid Howlader and others
Respondents
For the Appellant :
Mr. A.M. Amin Uddin, Attorney General with Mr.
Sk. Md. Morshed, Additional Attorney General and
Mr. Mohammad Saiful Alam, Assistant Attorney
General, instructed by Mr. Haridas Paul,
Advocate-on-Record
For Respondent No.1 :
Mr. Probir Neogi, Senior Advocate, instructed by
Mr. Zainul Abedin and Mr. Syed Mahbubar
Rahman, Advocates-on-Record
For Respondent No.2-7 :
Not represented
Date of hearing: The 28th day of November, 2023
Date of judgment : The 7th day of December, 2023
JUDGMENT
M. Enayetur Rahim, J: This civil appeal, by leave, is directed
against the judgement and order dated 05.03.2012 passed by
this Division in Civil Petition for Leave to Appeal No.15 of
2011 dismissing the petition.
Facts relevant for disposal of this appeal are that the
respondent No.l Sher-e-Bangla Dokander Bohumukhi Samobay
Samity Limited (herein after referred to as writ petitioner
2
Samity) filed Writ Petition No.1728 of 2010 before the High
Court Division seeking a direction upon the present
appellant and writ respondent Nos. 2-7 to execute and
register a sale deed in respect of 2.575 acres of land of
Mouza Brahman Chiran of C.S. Plot Nos. 130 and 131 Police
Station-Sabujbag, District-Dhaka and to hand over physical
possession of the same in its favour.
It's claim is that it approached the government for
allotting the said plots for establishing a market for the
purpose of rehabilitation of eight members of the hawker
Samity. Pursuant to its application, the government
initiated proceeding and ultimately the Land Allotment
Committee of the Bangladesh Railway took decision to
transfer of the land in question fixing its price at
Tk.8,28,03,704.25 (taka eight crore twenty eight lacs three
thousand seven hundred four and twenty five paisa) and,
thereafter, the concerned authority raised the value at Tk.
18,24,00,141.56 in (taka eighteen crore twenty four lacs one
hundred forty one and fifty six paisa). There was dispute
regarding the ownership of land between the different
Ministries. Subsequently, the Railway department received
part payment on different occasions and ultimately the writ
petitioner Samity executed an Angikarnama on 03.02.2009 with
commitment to deposit the remaining amount within certain
period. Thereafter, the Writ Respondent No.6 by letter dated
11th of February, 2009, directed the writ petitioner to
deposit the remaining amount within certain period.
Accordingly, the writ petitioner Samity deposited the entire
amount within the stipulated time which amount has duly been
accepted. Thereafter, on 07.10.2009 the writ petitioner
3
approached the writ-respondent No.5 to take necessary steps
for execution/registration of the sale dead. Since, the writ
respondent No. 5-the Railway authority failed to do so, it
compelled to file the writ petition.
Writ respondent Nos. 2-7 contested the Rule by filing
an affidavit-in-opposition contending, inter alia, that the
value of the land in question was arbitrarily fixed by some
officers of the Railway department without following the
rules, although on behalf of the writ petitioner an
affidavit was affirmed to pay the market value of the land,
it collusively secured an order of allotment at a very low
price.
The High Court Division upon hearing the parties by
the judgment and order dated 19.08.2010 made the Rule
absolute and directed the writ respondents to
execute/registered the deed in question as per the decision
taken by the writ respondent No.6 within 60 days from date
or receipt of this judgment.
Against the said judgment of the High Court Division,
the writ respondent No.1, present appellant moved this
Division by filing Civil Petition for Leave to Appeal No.15
of 2011. After hearing the parties this Division by the
impugned judgment dated 05.03.2012 dismissed the leave
petition.
Being aggrieved by the said judgment the writ
respondent No.1-present appellant filed Civil Review
Petition No. 73 of 2012 before this Division and,
accordingly leave was granted on 09.12.2014. Hence, the
present appeal.
4
Mr. A.M. Amin Uddin, learned Attorney General,
appearing on behalf of the appellant has made submissions in
lines with the grounds upon which leave was granted. In
addition he submits that in 26th meeting of Bangladesh
Railway authority, no decision was taken to transfer the
case land to the writ petitioner. But the writ petitioner in
the writ petition stated that in the 26th meeting the
Bangladesh Railway took decision to sell out the land in
question and on finding of the minutes of the said meeting
it appears that no such decision was taken in the said
meeting and the writ petitioner had obtained judgment in
Writ Petition No. 1728 of 2010 by suppressing fact and
practicing fraud upon the Court, affirmation of the said
judgment in the Civil Petition No. 15 of 2011 is an error of
law on the face of the record. Learned Attorney General
further submits that on the 18th meeting dated 28.08.2001 a
decision had been taken prohibiting granting of lease or
sale of Railway land, the withdrawal of the said decision on
26th meeting dated 07.04.2004 is absolutely mala fide and
illegal as same was done by the then Communication Minister
and the Bangladesh Railway Authority for personal gains for
obtaining order of allotment of one Bigha of land for an
N.G.O.
Learned Attorney General also submits that decision
to sell of Railway's land by any individual officer and
placing the matter to the higher authority referring order
passed in a writ petition without disclosing that Railway
Board has not approved permission for sale, the same is
mala fide and due to illegal action or decision of any
officer of Railway, the Railway cannot suffer. Learned
Attorney General finally submits that the transferring of
5
the property of the Republic illegally by any office of
Railway or any authority in violation of Law, Rules and
Regulations is of public importance and the leave petition
has been dismissed without considering the aforesaid
aspect.
Per contra, Mr. Probir Neogi, learned Senior Advocate
appearing on behalf of respondent No.1, writ petitioner
submits that the then secretary of the respondent samity
approached the Hon’ble President of the People's Republic
of Bangladesh for leasing out the case land for
rehabilitation of the 1495 evicted shop owner of the samity
to which the Hon'ble President responded positively;
accordingly the Government initiated proceeding and that on
05.11.2002, the meeting of Dhaka Divisional Land Allotment
Committee was held and in that meeting it was unanimously
decided to place the matter to appropriate authority for
its consideration to permanently lease out the said land in
favour of the samity; in that meeting a prohibition was
imposed regarding sale/transfer/granting lease/license of
the case land but since the case land is an acquired land
and it remained unused, therefore to prevent the illegal
occupiers from taking possession of the case land the
Railway authority in its 26th meeting passed a resolution
through which earlier decision for postponing
lease/license/sale of the Railway Property was revoked;
thereafter the Railway authority vide letter bearing memo
No.‡gvg/‡iD/Rwg(2)-29/2003(Ask-2)146 dated 24.03.2005 issued by
Assistant Secretary (Rail Development), Ministry of
Communication decided to sell out the case land in favour
of the respondent samity; from the said letter it is
evident that a decision for selling out case land in favour
6
of the respondent samity was taken in the 26th meeting;
thereafter Railway authority assessed the value of the case
land at Tk. 8,28,03,704.25/- which was increased to the
tune of Tk. 18,24,00,141.56 by a re-assessment of the case
land; the Railway authority received the said amount of
taka vide 178 pay orders and receiving the said amount,
Bangladesh Railway did not execute and register sale deed
in respect of the case land in favour of the respondent
samity and, therefore, the respondent samity as petitioner
filed writ petition No.1728 of 2010 before the High Court
Division praying for direction upon the respondents i.e.
Railway authority to execute and register sale deed in
respect of the case land in favour of the respondent
samity; the High Court Division after perusal of the record
and hearing the parties concerned rightly made the Rule
absolute in the said writ petition which was rightly
affirmed by the this Division in Civil Petition for Leave
to Appeal No. 15 of 2011.
Mr. Neogi also submits that the Railway authority,
after a due process of law passed a resolution and made an
offer to sell out the case land in favour of the respondent
samity and the respondent samity relying upon the said offer
suffered detriment and deposited asking amount of money and
now it will be inequitable for the Railway authority to go
back from its commitment. He further submits that the
reasons as stated by the Railway Authority in the civil
appeal are totally illegal and untenable; the respondent
samity as petitioner filed writ petition No. 1728 of 2010
before the High Court Division praying for direction upon
the respondents (Railway authority)to execute and register
the sale deed in respect of the case land and to handover
7
possession of the same in favour of the present respondent
samity; in the said writ petition Railway Authority as
respondent No.6 contested the Rule by filing affidavit-in-
opposition; nowhere in the said affidavit-in-opposition the
Railway authority raised objection regarding the resolution
of 26th meeting held on 07.04.2004 nor they stated in the
said affidavit that the case land was the non-alienable
property; even those issues were not raised in the leave
petition but, the Railway authority out of mala fide
intention and for illegal gain for the first time raised
those issues in the review petition being No.73 of 2012 and
subsequently, in this appeal which are barred by principle
of estoppel. Mr. Neogi further submits that the respondent
samity is an affected samity and the Railway authority
decided to allot the case land in favour of the respondent,
assessed the value of the case land which the respondent
samity agreed to pay; subsequently the Railway authority
increased the value of the case land which the samity also
agreed to pay and subsequently paid the increased value of
the case land and that the Railway authority received the
said increased amount vide 178 pay orders; it is a
legitimate expectation of the respondent samity that it
would get the possession of the case property by dint of the
said allotment, but the refusal of the appellant to transfer
the case property in favour of the respondent samity is
totally illegal, arbitrary and mala fide.
Mr. Neogi further submits that the Railway Authority
never at any point of time disclosed that the case property
is a non-alienable property rather they passed a resolution
in the 26th meeting held on 07.04.2004 showing the case
property as alienable property and, therefore, the
8
respondent samity as affected samity showed interest to
purchase the case land; if the respondent samity being aware
of that the case land is a non-alienable property it would
not have purchased the case land and would not have
deposited huge amount of money in favour of Bangladesh
Railway but the corrupted Railway officials for being
enriched illegally are denying the papers issued by them and
with a view to deprive the respondent samity from its lawful
right has filed the present appeal on some illegal and
untenable reasons.
Mr. Neogi finally submits that at the time of granting
leave of the review petition being No.73 of 2012, this Court
did not consider that the basis of depositing money in
favour of the Bangladesh Railway was the order dated
06.05.2008 passed by the High Court Division in writ
petition No. 1042 of 2008 in which the Bangladesh Railway
was impleaded as respondent but in the said writ petition
it did not raise objection regarding memo dated 24.03.2005
(Annexure-B to the writ petition) nor it stated at that time
by filing affidavit-in-opposition that the case land was
non-alienable property but now they have claimed that the
said memo had been procured by deceitful means and thus the
Railway authority creating a got up story has filed the
present appeal and as such the appeal is liable to be
dismissed.
We have considered the rival submissions of the learned
Advocates appearing for the parties concerned, perused the
judgement and order of the High Court Division as well as
the impugned judgment of civil petition for leave to appeal
and other connected papers on record as placed before us.
9
In the instant case the writ petitioners’ claim is that
the Railway Board in its 26th meeting dated 17.04.2004 took
decision to sell out 2.575 acres land, i. e. the land in
question to the writ petitioner Samity, which was
communicated to them by a Memo dated 24.03.2005 issued under
the signature of the Assistant Secretary, Railway
Department, Ministry of Communication. And thereafter,
pursuant to an order passed by the High Court Division in
Writ Petition No. 1728 of 2010 they deposited entire money,
i.e. Tk. 18,24,00,141.56/-to the authority concerned and, as
such, the writ petitioner Samity has got the legitimate
expectation to get the land in question registration in its
favour.
We have perused the minutes of the 26th meeting held on
17.04.2004 and upon perusal of the same it transpires that
in the said meeting no such decision was taken by the
Railway Authority to sell out the land in question to the
writ petitioner Samity. However, from the memo dated.
24.03.2005 issued by the Assistant Secretary, Railway
Department it transpired that 2.57 acres land has been
allotted in favour of the writ petitioner Samity. Since no
decision had been taken in the 26th Board Meeting of the
Railway Authority, the Memo dated 24.03.2005 allegedly
communicated the decision of the Railway authority to sell
the property in favour of the writ petitioner Samity, is
nothing but a fraudulent and created document and on the
basis of such document no right has been created in favour
of the writ petitioner Samity and this fraud has vitiated
everything.
10
The writ petitioner Samity having relied on the said
document, by filing Writ Petition No. 1728 of 2010 obtained
an ad-interim order from the High Court Division to deposit
taka One Crore and, thereafter, the Railway Authority asked
them to deposit entire amount and the writ petitioner Samity
deposited entire Tk.18,24,00,141.56 (taka eighteen crore
twenty four lack one hundred forty one and fifty six paisa).
This act of the officials of the Railway Authority is highly
suspicious, unwarranted and misconduct on their part.
In view of the above facts and circumstances, the writ
petitioner Samity is not entitled to get any relief, and the
High Court Division committed serious error in making the
Rule absolute and earlier this Division also failed to
consider this fact that a valuable public property is going
be sold in favour of a private party, by resorting forgery
in collusion with the officials of the concerned Ministry.
It is pertinent to mention here that earlier the resolution
of 26th Board meeting of the railway authority was not
brought to the notice of this Division and if the same was
produced before this Court then result would have been
otherwise.
Moreover, the learned Attorney General has informed the
Court that in the meantime the land in question has been
using for the Mega Project-‘Dhaka Alleviated Expressway’ and
duly construction has been made thereon and an office of the
project under the name and style ‘Intelligent Transport
System (ITS)’is going to be established thereon and, as
such, there is no scope to sell the property to the writ
petitioners’ Samity.
11
Having considered the above facts and circumstances, we
find merit in the appeal. Accordingly, the appeal is
allowed.
The judgment and order passed by the High Court
Division is set aside.
However, it transpires that the Railway Authority
received Tk. 18,24,00,141.56/-from the writ petitioners’
Samity and no point of time they asked the writ petitioner
to take back the said money. In view of the above, Railway
Authority-writ respondent Nos.2-7 are Directed to return the
entire money i.e. Tk. 18,24,00,141.56/- to the writ
petitioner Samity with 5% simple interest rate within a
period of 6 (six) months from the date of receipt of a copy
of this judgment and order.
There is no order as to costs.
J.
J.
J.
J.
J.
B.S./B.R./*Words-2,775*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan,C.J.
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS.82-83 OF 2021
(From the judgment and order dated the 1st August, 2017 passed by a Division Bench
of the High Court Division in Writ Petition No.1326 of 2016 and Writ Petition
No.10041 of 2016)
Md. Mobarak Hossain : . . . Appellant
(In both the cases)
-Versus-
Bangladesh represented by the
Secretary, Ministry of Power,
Energy and Mineral Resources,
Bangladesh Secretariat, Ramna,
Dhaka and others
: . . . Respondents
(In both the cases)
For the Appellant
(In both the cases)
: Mr. Salah Uddin Dolon, Senior Advocate
instructed by Mr. Zainul Abedin,
Advocate-on-Record
For Respondent No.1
(In both the cases)
: Mr. Sk. Md. Morshed, Additional
Attorney General, instructed by Mr.
Haridus Paul, Advocate-on-Record
For Respondents No.2
(In both the cases)
: Mr. K.S. Salah Uddin Ahmed, Senior
Advocate instructed by Ms. Madhu Maloti
Chowdhury Barua and Mr. Mohammad
Ali Azam, Advocate-on-Record
For Respondents No.6
(In both the cases)
: Mr. Mohammad Ali Azam, Advocate-on-
Record
For Respondent Nos.3-5
(In both the cases)
: Not represented
Date of Hearing : The 22 nd day of November, 2023
Date of Judgment : The 7 th day of December, 2023 2
J UD G M E N T
M. Enayetur Rahim, J: Civil Appeal Nos.82-83 of 2021, by
leave, are directed against the judgment and order dated
01.08.2017 passed by the High Court Division in Writ
Petition No.1326 of 2016 with Writ Petition No.10041 of
2016 discharging the Rules.
In both the appeals parties are same and similar law
and facts are involved and those were heard analogously
and are being disposed of by this single judgment.
The relevant facts for disposal of these two Civil
Appeals, in brief, are that the present appellant writ-
petitioner, being an engineer of Bangladesh Polli Biddot
Unnoyon Board, had been working in different Polli Biddot
Samities of Bangladesh under Bangladesh Rural
Electrification Board (BREB). While he was working at
Bancharampur Zonal Office of Brahmanbaria Polli Biddut
Samity during a period from September,2012 to 5th
November,2014 he was found to be involved in corruption.
Accordingly, after proceeding having been drawn against
him in view of the relevant provisions under the fõ£ ¢hc¤Év
p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d,1992, (Service Rules), the authority removed
him from service vide impugned removal order dated
17.05.2016 (Annexure-F in Writ Petition No.10041 of
2016). Being aggrieved by such removal, the writ
petitioner moved Writ Petition No.10041 of 2016 before
the High Court Division and obtained the aforesaid Rule.
After writ petitioner’s service in Brahmanbaria, when the
writ petitioner joined as Deputy General Manager at 3
Biswanath Zonal Office of Sylhet Polli Biddut Samity-1,
he was again found involved in committing corruptions
etc. and, accordingly, he was proceeded again
departmentally in view of the relevant provisions under
the said Service Rules. Accordingly, after enquiry and
show cause notice, he was finally removed from service
vide impugned order dated 24.12.2015 (Annexure-H) in Writ
Petition No.1326 of 2016). As against this order, the
writ petitioner obtained the aforesaid Rule, and,
subsequently, when his appeal against the same was
rejected vide impugned order dated 20.01.2016, he then
obtained a supplementary Rule.
The Rules and supplementary- Rule were opposed by
the writ respondent No.6 (in Writ Petition No.1326 of
2016) and writ respondent No.02 (in Writ Petition
No.10041 of 2016), present-respondent No.2 mainly,
contending that, due process of law was followed in the
departmental proceedings and that the writ petitioner was
removed after giving all opportunities of hearing in
accordance with the relevant provisions of the Service
Rules.
A Division Bench of the High Court Division after
hearing both the Rules analogously by the impugned judgment
and order dated 01.08.2017 discharged both the Rules.
Feeling aggrieved by and dissatisfied with the said
impugned judgment and orders the writ-petition filed two
separate civil petitions for leave to appeal and accordingly
leave was granted. 4
Hence the present appeals.
Mr. Salahuddin Dolon, learned Senior Advocate,
appearing for the appellant-petitioner submits that the
High Court Division has filed to consider that the
impugned order of removal from service dated 24.12.2015
was issued without jurisdiction by a Director (current
charge) on behalf of the Chairman of Bangladesh Rural
Electrification Board (BREB) instead of the Bangladesh
Rural Electrification Board which is the only competent
authority to remove the petitioner from his service
pursuant to the provisions of section 24 of Act No.57 of
2013 as such the impugned Judgment and order dated
01.08.2017 of the Hon’ble High Court Division is liable
to be set aside on this sole ground.
He further submits that the High Court Division has
filed to consider that there are decisions of our apex
court that the Board is the competent authority to
initiate disciplinary proceeding against the employees of
Rural Electrification Board and no subordinate authority
can exercise disciplinary power inasmuch as only the
Board is competent to appoint and take disciplinary
action and any delegation of disciplinary authority was
required to be published in the gazette pursuant to the
provisions of section 26 of Act No.57 of 2013 but in the
instant case, the impugned orders were issued by the
chairman instead of the Board as such the impugned
Judgment and Order dated 01.08.2017 of the Hon’ble High
Court Division is liable to be set aside. 5
Mr. Salauddin also submits that the High Court
Division has failed to consider that the 2(two) members
inquiry committee which was formed to enquire into the
allegations brought against the petitioner had been
formed in clear and flagrant violation of the provisions
of Rule-40(3) of cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa, 1992 (ms‡kvwaZ, 2012) as
1(one) of the members of the inquiry committee, Deputy
Director (Current Charge) was actually holding the
substantive post of Assistant Director/Assistant General
Manager which is a lower rank than that of the petitioner
who was a Deputy General Manager (DGM) as such the
impugned judgment and order dated 01.08.2017 of the High
Court Division liable to be set aside. He further submits
that, once an employee is Dismissed/removed from service
has ceases to be an employee therefore, a
dismissed/removed employee cannot be dismissed/removed
from service for 2nd time inasmuch as the petitioner has
been dismissed twice in an unprecedented manner which is
unheard of, thus, it proves malafide intention and
personal grudge against the petitioner, therefore, the
impugned Judgment and Order dated 01.08.2017 of the
Hon’ble High Court Division is liable to be set aside.
Mr. Salauddin lastly submits that the High Court
Division has failed to consider that removal from service
is a serious matter which affects the livelihood of an
employee and his family members and in the instant case
punishment of removal from service was imposed upon the
petitioner which is very harsh, excessive, 6
disproportionate and unreasonable in test of the general
human conscience as such the impugned Judgment and Order
dated 01.08.2017 of the Hon’ble High Court Division is
liable to be set aside.
Mr. Sk. Md. Morshed, learned Additional Attorney General
appearing with Mr. K.S. Salahuddin Ahmed, learned Advocate
for the respondent Nos.1 and 2 having supported the impugned
judgment and order submits that the appellant was an
officer of Sylhet Palli Bidyut Samity-1, not Bangladesh
Rural Electrification Board, which can be understood from
(a) clause No.2 of his appointment letter bearing
reference No. 27.12.9131.569.100.02. 14.6792 dated
05.11.2014 (ÒAvcbvi PvKzix AÎ mwgwZi PvKzix wewa, cwem evBÕj, cwem bxwZ wb‡`©wkKv I mg‡q
mg‡q cÖewZ©Z evcwe ‡ev‡W©i mvKz©jvi Abyhvqx cwiPvwjZ I wbqwš¿Z nB‡e|Ó) issued by
Sylhet PBS-1 and also from (b) the fact that PBS Service
Code 1992 amended in 2012 has been admitted by the
appellant to apply to him hence section 24 of Act no.57
of 2013 does not at all apply to the appellant given that
the said section 24 only applies to officers and
employees of BREB and it has no manner of application of
officers and employees of PBS like the appellant and that
section 26 of the said 2013 Act also has no manner of
application in the instant matter because no delegation
of disciplinary authority has taken place in the instant
matter at all.
Mr. Morshed also submits that the Removal order
dated 14.12.2015 was issued as per the decision of the
Chairman of BREB and the said removal order was merely 7
communicated by the Director (Current Charge) of Inquiry
and Discipline Directorate of BREB and this practice has
been emphatically endorsed by this Division in Judgment
and Order dated 02.04.2017 passed in Civil Petition for
Leave to Appeal No.3470 of 2015 heard with three other
cases as such no illegality whatsoever has been
communicated in issuing the removal order.
He also submits that PBSes are separate entities
registered under BREB which will be evident from section
2(10) of Act No.57 of 2013 and which can also be
understood from the fact that service of officers and
employees of BREB are regulated by evsjv‡`k cjøx we`y¨Zvqb †evW© Kg©Pvix
PvKix cÖweavbgvjv 2018 (previously evsjv‡`k cjøx we`y¨Zvqb †evW© Kg©Pvix PvKix cÖweavbgvjv
1990 was in force) but service of officers and employees
of PBSes are regulated by cjøx we`y¨r mwgwZ Kg©Pvix PvKix wewa 1992 (ms‡kvwaZ
2012).
It has been also argued by the learned Advocate for
the respondents that no illegality has been committed by
the concerned authority of BREB in appointing a Deputy
Director on Current Charge as one of the two members of
the enquiry committee while appointing a Deputy Director
as Convenor of the enquiry committee because in those
cases where an enquiry committee has more than one member
(like the present case), rule 40(3) of PBS Service Code
only requires that the Convenor of the enquiry committee
be at least a Deputy Director of BREB (ÒDc-cwiPvjK/wbe©vnx cÖ‡KŠkjx
c` gh©v`vi wb‡¤œ †Kvb Kg©KZ©v‡K. . . Z`šÍ KwgwUi AvnevqK wbhy³ Kiv hvB‡e bv|Ó) while the
other order member(s) only need(s) to be an officer of 8
BREB (Òcwem Gi .... †WcywU †Rbv‡ij g¨v‡bRvi .... c`exi Kg©KZ©vM‡Yi weiæ‡×... Awf‡hvMbvgv
Z`‡šÍi †ÿ‡Î GB PvKzix wewai AvIZvq cjøx we`y¨Zvqb †ev‡W©i Kg©KZ©v‡K Z`šÍKvix KZ©KZ©v wb‡qvM. . .
.Kwi‡Z nB‡e|Ó).
Mr. Morshed further submits that no illegality has
been committed by the authority in removing the appellant
from service first vide memorandum No.430 dated
24.12.2015 in respect of some allegations arising out of
the appellants service at Sylhet PBS-1 and then vide
memorandum no.870 dated 17.05.2016 in respect of some
allegations arising out of the appellants service at
Brahmanbaria PBS for the reason that there is no
limitation in the Service Code to conduct and complete a
departmental proceeding when the delinquent employee has
already been removed in another departmental proceeding;
moreover in the said second departmental proceeding the
appellant has enjoyed all the opportunities of defending
himself as provided under the service code and moreover
long before his first removal from service on 24.12.2015,
the other departmental proceeding (in which the appellant
was removed from service on 17.05.2016) had already
started long ago on 31.03.2015 with issuance of show
cause notice bearing reference no.638 and that the
appellant is a serial offender which is evident from the
fact that the appellant has been removed from service in
respect of separate allegations which arose from his
service at two separate PBSes and furthermore there are
some similarities to the allegations in those two
departmental proceedings as such the appellant is a 9
habitual offender whose removal from service as a result
of his numerous misconduct and offences should be upheld.
We have considered the rival submissions of the
learned Advocates for the respective parties, perused the
impugned judgment, leave granting order and other
materials as placed before us.
In the instant case, the appellant was appointed by
the Bangladesh Rural Electrification Board and thereafter
his service was transferred to the Palli Bidyut Samity
and subsequently his various promossions and transfer to
the different Palli Bidyut Samity was/were done by the
Board and as such we have no hesitation to hold that the
petitioner’s terms of service shall be governed by the
relevant Service Rules of the Bangladesh Rural
Electrification Board, not by the Service Rules of Palli
Bidyut Samity. In the instant case the departmental
proceeding against the appellant was done in accordance
with the provision of fõ£ ¢hc¤Év p¢j¢a (PvKzix wewagvjv), 1992 though his
appointing authority is the Rural Electrification Board,
which has own service Rules. Proceeding initiated and
conducted by one service Rules under a separate authority
and ultimate decision taken by another authority is
unheard of and not permissible in law and equity.
In the dismissal order (Annexure-K) it has been
mentioned to the effect:
Ò‡m‡nZz, mvwe©K ch©v‡jvPbv‡šÍ cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa, 1992,
ms‡kvwaZt 2012Bs Gi 38|1|(K) I (M) bs aviv Abyhvqx Avcbv‡K Am`vPiY 10
I Dr‡KvP MÖn‡Yi `v‡q `vqx KiZt GKB PvKzix wewai 39|(1)(L)(3) bs aviv
Abyhvqx Avcbv‡K `wÛZ K‡i PvKzix n‡Z AcmviY `Û Av‡ivc Kiv nj|Ó
(Underlines supplied)
In view of the above admitted facts and
circumstances entire departmental proceeding against the
appellant is without jurisdiction and illegal.
Since departmental proceeding against the appellant
under the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d,1992 is illegal and without
jurisdiction, we do not feel it necessary to decide other
grounds on which leave was granted. Because, in this
particular case departmental proceeding has vitiated the
whole proceedings.
The definition of ÔKZ…©cÿÕ as defined in cjøx we`y¨r mwgwZ Kg©Pvix
PvKzix wewagvjv,1999 and cjøx we`y¨Zvqb ‡evW© Gi Kg©Pvix PvKzix cÖweavbgvjv, 1990 are quite
distinguisble.
ÔKZ…©cÿÕ and ÔKg©KZ©vÕ as defined in cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa,1992
are as follows:
Òwewa 2(M)- KZ…©cÿ ewj‡Z wb‡qvMKvix KZ…©cÿ wKsev KZ…©cÿ wKsev KZ…©c‡ÿi ÿgZv
cÖ‡qvM Kivi Rb¨ Zv KZ…©K g‡bvbxZ/ÿgZvcÖvß †Kvb Kg©KZ©v‡K eySvB‡e Ges wb‡qvMKvix
KZ…©c‡ÿi DשZb KZ…©cÿ Bnvi AšÍf©y³ nB‡e| Bnv Qvov KZ…©cÿ ewj‡Z cjøx we`y¨Zvqb
†evW© wKsev †ev‡W©I ÿgZv cÖ‡qvM Kivi Rb¨ Zv KZ…©K g‡bvbxZ/ÿgZv cÖvß †Kvb Kg©KZ©v‡K
eySvB‡e|
wewa 2(N)- Kg©KZ©v ewj‡Z cjøx we`y¨r mwgwZi †h †Kvb Kg©KZ©v‡K eySvB‡e|Ó
In cjøx we`y¨Zvqb †evW© Gi Kg©Pvix PvKzix cÖweavbgvjv, 1990 ÔKZ…©cÿÕ Ges ÔKg©KZ©vÕ have
defined as under: 11
ÒcÖweavbgvjv 2(M) KZ…©cÿ ewj‡Z wb‡qvMKvix KZ©„cÿ wKsev KZ©„c‡ÿi ÿgZv cÖ‡qvM Kivi
Rb¨ ZrKZ…©K g‡bvbxZ †Kvb Kg©KZ©v‡K eySvB‡e Ges wb‡qvMKvix KZ…©c‡ÿi DשZb
KZ…©cÿI Bnvi AšÍ©fz³ nB‡e;
cÖweavbgvjv 2(N) Kg©KZ©v ewj‡Z †evW© Gi †Kvb Kg©KZ©v‡K eySvB‡e|Ó
In view of the above, there is no scope to say that
an officer appointed by the Board, who is subsequently
transferred to the Samity is a regular officer of the
Samity.
In view of the above, we find merit in the appeal.
Accordingly, the appeal is allowed without any order
as to cost.
The judgment and order dated 01.08.2017 passed by
the High Court Division in Writ Petition No.1326 of 2016
with Writ Petition No.10041 of 2016 is hereby set aside.
C.J.
J.
J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:2,460
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1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1566 OF 2023 WITH
CIVIL PETITION FOR LEAVE TO APPEAL NO. 1547 OF 2023 AND 1559
OF 2023.
(From the judgment and order dated the 30th day of March, 2023 passed by
the High Court Division in Writ Petition Nos.8594 of 2021 and 11803 of
2021).
Jasmin Ara Begum and others : . . . Petitioners
(In C.P. No. 1566 of 2023)
Lailun Najma Begum and others : . . . Petitioners
(In C.P. No. 1547 of 2023)
Marzina Yesmine and others : . . . Petitioners
(In C.P. No. 1559 of 2023)
-Versus-
Bangladesh, represented by the
Secretary, Ministry of Women
and Children Affairs,
Bangladesh Secretariat, Dhaka
and others
: . . . Respondents (In C.P. No. 1566 of 2023)
Jasmin Ara Begum and others : . . . Respondents (In C.P. No. 1547 of 2023)
Laila Nasrin Jahan and others . . . Respondents (In C.P. No. 1559 of 2023)
For the Petitioners
(In C.P. No. 1566 of 2023) : Mr. Anwarul Azim Khair, Senior
Advocate, instructed by Mr. Zainul
Abedin, Advocate-on-Record
For the Petitioners
(In C.P. Nos. 1547 of 2023 &1559 of 2023) : Mr. M. K. Rahman, Senior Advocate,
with Mr. ABM Siddiqur Rahman
Khan, Senior Advocate, instructed by
Mr. Md. Helal Amin, Advocate-on-
Record
For Respondent Nos. 5-10 &
22-23
(In C.P. No. 1566 of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Ms.
Sahanara Begum, Advocate-on-Record
For Respondent No.56
(In C.P. No. 1547of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Ms.
Sahanara Begum, Advocate-on-Record
2
For Respondent Nos. 1-2, 5, 7,
21, 29 & 49
(In C.P. No. 1547 of 2023)
: Mr. Anwarul Azim Khair, Senior
Advocate, instructed by Mr. Zainul
Abedin, Advocate-on-Record
For Respondent Nos. 1-4
(In C.P. No. 1559 of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Mr. Md.
Abdul Hye Bhuiyan, Advocate-on-
Record
Respondent Nos. 1-4, 11-21&
24-55
(In C.P. No. 1566 of 2023)
: Not represented
Respondent Nos. 3-4, 6, 8-20
22-28, 30-48, 50-55 & 57-75
(In C.P. No. 1547 of 2023)
: Not represented
Respondent Nos. 5-9
(In C.P. No. 1559 of 2023)
: Not represented
Date of hearing and judgment : The 28th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: Civil Petitions for Leave to Appeal
Nos.1566 of 2023 and 1547 of 2023 are directed against the
judgment and order dated 30.03.2023 passed in Writ Petition
No.8594 of 2021, and Civil Petition for Leave to Appeal
No.1559 of 2023 is directed against the judgment and order
of the same date passed in Writ Petition No.11803 of 2021 by
the High Court Division disposing of the Rules with
observations and direction.
The subject matter of all the civil petitions for leave
to appeal are same and those are heard together and disposed
of by this common judgment.
The relevant facts leading to the filing of the
present civil petitions for leave to appeal are that, the
present petitioners in C.P. No. 1566 of 2023 and respondents
in C.P. No. 1559 of 2023 filed two separate writ petitions
before the High Court Division challenging the gazette
notification dated 13.12.2018 so far as it relates to
amending serial No.3 of the schedule-‘Ga’ of “Kg©KZv© I Kg©Pvix (gwnjv 3
welqK cwi`ßi) wb‡qvM wewagvjv, 1990” (in short, the Rules, 1990) by
substituting new serial No.3 in place of earlier serial No.3
as being ultra vires the Constitution and prayed for a
declaration that the terms and conditions of their service
shall be governed by the original Rules, 1990 and all the
actions taken including belated up-gradation of the post of
the writ petitioners in Class-1 post with effect from
15.08.2019 published in the Official Gazette on 15.08.2019
by applying the amended Rules instead of promotion are
without lawful authority and is of no legal effect. The
petitioners further prayed for a direction upon the writ
respondents to give them promotion in the post of Deputy
Director with effect from the date they became eligible
under the original Rules.
On 30.09.2021 the High Court Division issued a Rule
Nisi in Writ Petition No. 8594 of 2021 and on 12.12.2021
issued a Rule Nisi in Writ Petition No. 11803 of 2021.
Added respondent No.5-30 in Writ Petition No. 8594 of
2021 and writ respondent No.3 of Writ Petition No. 11803 of
2021 contested the Rule.
The High Court Division after hearing both the Rules
by a common judgment and order disposed of the same with
the following observations and directions:
“(a) The amended schedule to the Service
Rules did not adversely affect the rights of
the petitioners. Hence, the same is not struck
down and accordingly, declared to be intra
vires the Constitution prospectively. However,
the writ petition is maintainable for the
reasons discussed in paragraph No. 21 above. 4
(b) The final gradation list approved, vide
Memo dated 27.07.2022 so far as it relates to
the petitioners and Program Officers are
declared to have been made without lawful
authority and of no legal effect.
(c) The concerned respondents are directed
to prepare a new gradation list so far as it
relates to the holders of the posts, namely
Upazilla Women Affairs Officer (UWAO)and
Program Officer in accordance with the
gradation list dated 14.12.2004 in light of the
observations made in paragraph Nos. 25 and 27
above.
(d) In respect of employees, who hold the
post of Assistant Director (Training),
Assistant Director (Marketing), Assistant
Director (Career Development), Assistant
Director (Micro Credit and Audit) and Hostel
Superintendent (Temporary) (respondent Nos. 5-
10 and 24 of WP No. 8594 of 2021) and whose
names have been included in the gradation list,
this Court has considered the submissions
advanced by the learned Advocates of both
sides. Having considered the arguments, this
Court has decided to leave the matter with the
concerned authority who shall decide the matter
in accordance with the applicable laws/rules.”
Being aggrieved by the said judgment and order, the
petitioners of Writ Petition No. 8594 of 2021 have filed
Civil Petition for Leave to appeal No.1566 of 2023, added 5
respondents No.25-30 of Writ Petition No. 8594 of 2021
have filed Civil Petition for Leave to appeal No.1547 of
2023 and third party have filed Civil Petition for Leave
to Appeal No.1559 of 2023 before this Division.
Mr. Anwarul Azim Khair, learned Senior Advocate,
appearing on behalf of the petitioners in C.P. No. 1566 of
2023 submits that in observation No.(a) of the judgment and
order dated 30.03.2023 of Writ Petition No.8594 of 2021,
the High Court Division erroneously observed that the
amended schedule to the Service Rules did not adversely
affect the petitioners' rights ignoring the settled
proposition of law that the service rules in existence at
the time of appointment of an employee create a vested right
to him which cannot be altered/changed subsequently to his
disadvantage, but the amended Service Rules, 2018 just took
away the petitioners' accrued or vested rights to qualify
for promotion to the post of Deputy Director until 2026
requiring more 5(five) years’ service, whereas the
petitioners already qualified for such promotion long back
in 2021 under Rules, 1990 and thus, such amendment patently
disadvantageous to the petitioners' rights.
The learned Advocate further submits that observation
No.(a) of the High Court Division is misconceived and
erroneous in fact and law both, inasmuch as, the High Court
Division failed to appreciate that declaration of the
amended schedule to the Service Rules to be intra vires the
Constitution prospectively would have no bearing in the
petitioners’ case, rather their accrued and vested rights
under Rules, 1990 is taken away by way of giving
retrospective effect of the amended Rules, 2018, which so 6
far relates to the petitioners is required to be declared
ultra vires the Constitution. He also submits that the High
Court Division utterly failed to consider that the post of
Assistant Director (Training), Assistant Director
(Marketing), Assistant Director (Career Development),
Assistant Director(Micro Credit and Audit) and Hostel
Superintendent(Temporary) have not been brought in
permanent organizational set up, have not been made
permanent, rather have kept on yearly retention basis and
would be abolished automatically in case of death,
retirement, termination etc. of the post holders and no new
manpower would be recruited in those posts are not included
in the feeder post of Deputy Director under both the Rules,
1990 and the amended Rules, 2018 and thus their inclusion in
the gradation List, 2022 downgrading the petitioners'
position is ex-facie, illegal, arbitrary, mala-fide and void
ab-initio, which is liable to be declared without lawful
authority, instead of leaving the matter at the whim of the
Authority, who already took side with those post holders
prejudicing the Petitioners' interest.
The learned Advocate finally submits that the High
Court Division did not consider the material fact that the
petitioners were appointed under Rules, 1990 and their
promotion, qualification and seniority would be determined
in accordance with the provision of Rules, 1990 and amended
Rules, 2018 bringing change in those events shall have no
bearing against the petitioners, which this Division settled
repeatedly, but as in the petitioners’ case, since the
Respondent No.4 persistently refusing such proposition, the
High Court Division erred in law in not declaring the 7
petitioners' service to be governed by Kg©KZv© I Kg©Pvix (gwnjv welqK
cwi`ßi) wb‡qvM wewagvjv, 1990 under which they were appointed.
Mr. A.M. Amin Uddin, learned Senior Advocate,
appearing for respondent Nos.5-10 and 22-23 in C.P. No. 1566
of 2023, respondent Nos.56 in C.P. No.1547 of 2023 and
respondent Nos.1-4 in C.P. No. 1559 of 2023 made submissions
in support of the impugned judgment and order of the High
Court Division.
Mr. Anwarul Azim Khair, Senior Advocate, appearing for
respondent Nos.1-2, 5, 7, 21, 29 and 49 in C.P. No. 1547 of
2023 also makes submissions in support the impugned judgment
and order of the High Court Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division and other
connected papers available on record.
It appears from the impugned judgement that the High
Court Division did not struck down the Service Rules holding
that the Service Rules did not adversely affect the rights
of the writ petitioners but the High Court Division gave
relief to the petitioners holding that the writ petition is
maintainable.
Admittedly, the High Court Division did not declare the
law ultra vires, rather it held that the law is intra vires;
however, the High Court Division gave benefit/relief to the
writ petitioners holding the writ petition is maintainable.
Admittedly, the writ petitioners are the Government servant,
if they are aggrieved by any action, their remedy lies in
the Administrative Tribunal. The findings of the High Court
Division that the writ petition is amenable, when it itself 8
found that the Service Rules is intra vires, is suffers from
legal infirmity and illegality.
It is well settled that the Government servants cannot
be entitled to invoke writ jurisdiction when their remedy is
available in the Administrative Tribunal. Mere challenging
Service Rules ipso facto does not make it amenable to the
writ jurisdiction.
In passing the impugned order, the High Court Division
failed to consider and appreciate the ‘doctrine’ that what
cannot be done directly cannot also be done indirectly.
Having considered above, we do not find any merit in
these leave petitions. All the leave petitions are
misconceived.
Accordingly, the impugned judgment and order of the
High Court Division is set aside.
However, the writ petitioners may approach before the
Administrative Tribunal for their grievance, if any, and if
they will approach to the Administrative Tribunal, law of
limitation will not stand as a bar for dealing before the
Administrative Tribunal.
In the light of the above, all the civil petitions for
leave to appeal are disposed of.
J.
J.
J.
J.
J.
B.S./B.R./*Words-2,018 *
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.232 OF 2014 WITH CIVIL PETITIONS
FOR LEAVE TO APPEAL NO.2680 OF 2014 & 602 OF 2017.
(From the judgments and orders dated 24.09.2014 and 12.02.2017 passed by the High Court
Division in Writ Petitions No.7489 of 2014, 6951 of 2014 & 1948 of 2017)
A.B.M. Altaf Hossain ...........Appellant
(In C.A. No.232 of 2014)
Mohammad Idrisur Rahman, Advocate .................Petitioner
(In C.P. No.2680 of 2014)
Md. Farid Ahmed Shibli .................Petitioner
(In C.P. No.602 of 2017)
-Versus-
Government of Bangladesh and others ............Respondents
(In all the cases)
For the appellant
(In C.A. No.232 of 2014) : Mr. Probir Neogi, senior Advocate with Mr.
Momtazuddin Fakir, senior Advocate, Mr.
Motahar Hossain, senior Advocate, Mr. M.
Sayed Ahmed, senior Advocate, Mr. Mahbub
Shafique, Advocate, Ms. Anita Ghazi Rahman,
Advocate, Ms. Suvra Chakravorty, Mr.
Manzur-Al-Matin, Advocate, Mr. Imranul
Kabir, Advocate and Mr. Khandaker Reza-E-
Raquib, Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For the petitioner
(In C.P. No.2680 of 2014) : Mr. Syed Mahbubar Rahman, Advocate-on-
Record.
For the petitioner
(In C.P. No.602 of 2017) : Mr. Manzill Murshid, senior Advocate,
instructed by Mr. Md. Mahboob Murshed,
Advocate-on-Record.
For the respondents
(In all the cases) : Mr. A.M. Amin Uddin, Attorney General with
Mr. Mohammad Mehedi Hassan Chowdhury,
Additional Attorney General, Mr. Md. Mojibur
Rahman, Assistant Attorney General, Mr.
Mohammad Saiful Alam, Assistant Attorney
General and Ms. Tamanna Ferdous, Assistant
Attorney General instructed by Mr. Haridas
=2=
Paul, Advocate-on-Record.
Dates of hearing : 12.01.2023,16.02.2023,23.02.2023,09.03.2023,30.
03.2023 & 25.05.2023.
Date of judgment : 14.06.2023.
JUDGMENT
Since everyone of us has delivered separate judgments those are
produced below. However, a common Court’s order has been passed
which is stated at the end of the judgments.
Md. Nuruzzaman J. I have had the privilege of going through
the Judgment proposed to be delivered by my learned brothers,
Obaidul Hassan J., Borhanuddin J., M. Enayetur Rahim J., Md.
Ashfaqul Islam J., Md. Abu Zafor Siddique and Jahangir Hossain J.
Concurring with the final decision of the appeal, I would like to
express my own views. The facts as has been fully narrated by my
learned brothers, I am of the view that further narrating the facts
would lead to repeat the same.
The constitutional provisions for appointing the judges of the
Supreme Court of Bangladesh at time of the appointment and then
non-appointment of the judges concerned as illustrated in the
Constitution of Bangladesh are as follows:
Additional Supreme Court Judges
98. Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
=3=
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any temporary
period :
Provided that nothing in this article shall prevent a person
appointed as an Additional Judge from being appointed as
a Judge under article 95 or as an Additional Judge for a
further period under this article.
Appointment of Judges
95. (1) The Chief Justice shall be appointed by the President
and the other Judges shall be appointed by the President
after consultation with the Chief Justice.
(2) A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and –
(a) has, for not less than ten years, been an advocate of the
Supreme Court ; or
(b) has, for not less than ten years, held judicial office in the
territory of Bangladesh ; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.
(3) In this article, “Supreme Court” includes a court which
at any time before the commencement of this Constitution
exercised jurisdiction as a High Court in the territory of
Bangladesh.
From the plain reading of the above stated Constitutional
framework for appointing judges of the supreme court of Bangladesh
the subtle thing that should not be averting gaze is that while
appointing Additional Judges under Article 98, there is no
constitutional obligation for the President consulting with the Chief
Justice of Bangladesh and such consultation is mandatory while
=4=
appointing judges under Article 95. Well, there was such a consulting
precondition within the purview of Article 98 in the original
constitution of 1972 and which was eliminated through 4th
amendment of the Constitution. Nevertheless, the Constitution too did
not impose that the CJB should not be consulted and as a convention
the CJB usually consulted prior to the appointment of such judges. For
instance, we can recapitulate the unpleasant incident of 1994 for
appointing of some judges without consulting the CJB and after
serious repercussions from every corner of the Bench-Bar and citizens,
that appointment was finally revoked and till date the same is
maintained religiously. Whatever may be the case, the Constitutional
scheme is such that the executive organ shall appoint a judge of the
Supreme Court after eventual scrutiny of antecedents as well as legal
acumen of the person concerned with or without consultation with
CJB.
Though it is the President who officially appoints the judges of
the Supreme Court, however, in reality it is the advice of the Prime
Minister. Because, as per Article 48(3)-
“(3) In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
article 95, the President shall act in accordance with the
advice of the Prime Minister:
=5=
Provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
The meaning, understanding and effects of this mandatory
consultation process was epically identified in the epoch-making
judgment of this Division in the case of Secretary, Ministry of Finance,
Government of Bangladesh Vs. Md. Masdar Hossain & others
reported in 2000 20 BLD (AD) 104 (popularly known as Masdar
Hossain case) as hereunder:
“...we pause here and reflect on the words "in consultation
with the Supreme Court" contained in Article 116. We have
no doubt in our mind that the President in Article 116, as
Syed Ishtiaq Ahmed rightly points out, in effect means the
Prime Minister or the Chief Political Executive of the
country, in view of Articles 48(3) and 55(2). The President
wields control over the Presiding Officers of subordinate
courts in a wide variety of fields. The Prime Minister has
therefore become in reality the real wielder of power in
this regard. The Prime Minister being a political person on
whom is vested the executive power of the Republic
needed a check on such a sweeping and absolute power.
Dr. Kamal Hossain rightly termed the words "in
consultation with the Supreme Court" As a pillar which
held up the independence of the judiciary as a basic
structure of the Constitution. In order that this pillar may
not end up as a bamboo pillar, the word "consultation" has
to be given some teeth, or else, as Syed Ishtiaq Ahmed
rightly pointed out, Articles 116 and 116A will be only
mocking birds.”
=6=
Though the above observations directly relates to the Articles
connected with the judicial officers of the district judiciary, however,
the meaning, understanding and effects are absolutely identical with
Article 95.
As appointment of judges in the Supreme Court is both a
constitutional post and warrant high esteem across the citizens, it is
impliedly ordained by the Constitution itself that prior to such
appointment all sorts of antecedents of the judge of the Supreme Court
on the cards be examined comprehensively. After having such clean
chit or certificate of spotless records and fulfilling legal, academic and
other mandatory requirements, if a person is appointed as Additional
Judge of the Supreme Court, he/she comes within judicial and
administrative domain of the Chief Justice for the two (02) years of
temporary period.
Now, getting back on the very basic question posted above, my
understanding is that the constitution makers included consultation
process in the Article 95 and later excluded in the Article 98 to give
extraordinary weightage to obligatory consultation procedure while
appointing a judge permanently. Because, this time that additional
judge effectively served two years on the open Court under oath and
within the direct surveillance of the senior judges of the Supreme
Court and the Chief Justice himself. He/she had to dispose adequate
cases and write judgments and as a convention, the quality and
=7=
integrity of those decisions are to be examined by the senior most
judges of both the Divisions of the Supreme Court including the CJB.
In other words, while appointing permanently, a person having prior
clean chit about his/her antecedents, fulfilling constitutional
requirements and other jobs as stated above done successfully, then
the CJB recommend his/her name to the President for appointing as a
Judge of the Supreme Court of Bangladesh.
Well, albeit the CJB’s recommendation, the Executive could
differ, at least for practical purposes. If there are diverged opinions
concerning a person’s appointment in the Supreme Court what should
the President do? Whose opinion should get preference?
Here comes the idea of primacy of opinion between executive
and judiciary in the matters of exclusive judicial arena and presence of
a workable mechanism for scientifically rational resolution of
difference of opinion. In this context our highest Court in the case of
“Bangladesh represented by the Secretary, Ministry of Justice and
Parliamentary Affairs and others (In. C. P. Nos. 2221 & 2222 of 2008),
Justice Syed Md. Dastagir Hossain and others (In. C. P. Nos. 2046 &
2056 of 2008) vs. MD. IDRISUR RAHMAN, ADVOCATE AND
OTHERS (In. C. P. Nos. 2221 of 2008), MD. SHAMSUL HUDA AND
OTHERS (In. C. P. Nos. 2222 of 2008), MD. SHAMSUL HUDA,
ADDITIONAL JUDGE AND OTHERS (In. C. P. Nos. 2046 of 2008) and
MD. IDRISUR RAHMAN, ADVOCATE AND OTHERS (In. C. P. Nos.
=8=
2056 of 2008) reported in 29 BLD (AD) 79 popularly known as `10
Judges Case’ observed hereunder:
“It has been asserted by the writ petitioners that there is
continuous and unbroken convention of consultation with
the Chief Justice of Bangladesh regarding appointment of
Judges and that has not been denied by the Government
by filing any counter affidavit. It is true that there has been
unbroken and continuous convention of consultation
excepting a breach in 1994 which was subsequently cured
by consulting the Chief Justice and by issuing a fresh letter
of appointment of the Judges by cancelling the earlier one
which was issued without consulting the Chief Justice of
Bangladesh. Therefore, the consultation with the Chief
Justice must be effective consultation with its primacy.
In the case of S.P. Gupta and others Vs. President of India
and others reported in AIR 1982 (SC) 149, the case of
Supreme Court Advocates-on-Record Association Vs.
Union of India reported in AIR 1994 page 269 and Special
Reference No. 1 of 1998 and the case of Al-Jehad Trust Vs.
Federation of Pakistan reported in P.L.D. 1996 Vol-1 page
324 the matter of consultation with the Chief Justice in the
matter of appointment of Judges to the higher Judiciary
was considered and it was held that consultation with the
Chief Justice is a pre-requisite and the opinion of the Chief
Justice shall have primacy.”
One point must be mentioned here that at the time of accruing
the cause of action and finally disposal of the `10 Judges Case’ there
was no incorporation of consultation process neither in Article 98 nor
in 95. Nevertheless, with the interpretation of the Constitution the
=9=
Apex court decided that mandatory consultation with the CJB having
primacy is a basic structure of the Constitution.
In the `10 Judges Case’ His Lordship Mr Justice Tafazzul Islam
observed that:
“As it appears in view of the provisions of Article 94(4) of
the Constitution and the interpretation of the words "shall
be independent" as contained in Article 116A of the
Constitution as given in Masdar Hossain's case, 20
BLD(AD) 104 and also the principles laid down in Sankar
Chand's case, : MANU/SC/0065/1977 : AIR 1977 S.C.
2328, wherein the Supreme Court of India interpreting
Article 50 of Indian Constitution, which is similar to
Article 22 of our Constitution, held that a basic pillar of the
Constitution cannot be demolished or curtailed or
diminished in any manner except by and under the
provision of the Constitution and the Appellate Division
applied the above view in Anwar Hossain's case, 41 DLR
(AD) 165 and that there is also no bar either in Article 95 or
Article 98 or any other provision of the Constitution in
respect of consultation with the Chief Justice and further
the primacy of the opinion of the Chief Justice is in no way
in conflict with Article 48(3) of the Constitution and the
advice of the Prime Minister is subject to Articles 22 , 94(4)
, 95 , 98 , 116 and 116A of the Constitution and accordingly
the Prime Minister, on the basis of Articles 48(3) and 55(2)
of the Constitution, cannot advice contrary to the basic
feature of the Constitution so as to destroy or demolish the
independence of judiciary and as such consultation with
the Chief Justice with primacy of his opinion is an integral
part of independence of judiciary which is ingrained in the
=10=
very concept of the independence of judiciary embedded
in the principle of Rule of Law.”
This Division further observed that:
“Therefore it follows that consultation with the Chief
Justice with primacy is an essential part of independence
of judiciary which is ingrained in the very concept of
independence embedded in the principle of Rule of Law
and separation of judiciary from the executive and is not in
conflict with Article 48(3) of the Constitution.”
In the case of Anwar Hossain Chowdhury and others Vs.
Bangladesh reported in 41 DLR (AD) 165, commonly referred as `8th
amendment case’ it was held that:
“This point may now be considered. Independence of
judiciary is not an abstract conception. Bhagwati, J: said
`if there is one principle which runs through the
entire fabric of the Constitution, it is the principle of
the Rule of Law and under the Constitution, it is the
judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the Law
and thereby making the Rule of Law meaningful and
effective.’
He said that the Judges must uphold the core principle of
the Rule of Law which says-`Be you ever so high, the Law
is above you.’ This is the principle of independence of the
judiciary which is vital for the establishment of real
participatory democracy, maintenance of the Rule of Law
as a dynamic concept and delivery of social justice to the
vulnerable Sections of the Community. It is this principle
of independence of the judiciary which must be kept in
=11=
mind while interpreting the relevant provisions of the
Constitution (S.P. Gupta and others Vs. president of India
and others AIR 1982 SC at pate 152)."
Independence of the Judiciary, a basic structure of the
Constitution, is also likely to be jeopardised or affected by
some of the other provisions in the Constitution. Mode of
their appointment and removal, security of tenure
particularly, fixed age for retirement and prohibition
against employment in the service of the Republic after
retirement or removal are matter of great importance in
connection with the independence of Judges. Selection of a
person for appointment as a Judge in disregard to the
question of his competence and his earlier performance as
an Advocate or a Judicial Officer may bring in a "Spineless
Judges" in the words of President Roosevelt; such a person
can hardly be an independent Judge.”
These views of the Apex Court of this land were reiterated in the
“Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th
Amendment Case”, “13th Amendment Case”, “16th Amendment
Case” and so on.
Let’s travel through the memory lane of the foundation of the
constitution of Bangladesh. What our Constitution makers of the
Constituent Assembly of 1972 thought concerning the independence of
judiciary and separation of it from the executive?
Deputy Leader of the Constituent Assembly and the Acting
President of Bangladesh during the liberation war of Bangladesh Syed
Nazrul Islam on 19.10.1972 said that:
=12=
"মাননীয় Ѻীকার সােহব, গণতেϴর সবেচেয় বড় কথা হেИ separation of
judiciary from the executive, অথκাৎ আইেনর শাসন এমনভােব ϕবতκন
করেত হেব, έযন আইনিবভাগ পিরপূণκভােব িনরেপϠ থােক এবং মযκাদা
এবং Ѿাধীনতার সেД তার কতκবҝ পালন করেত পাের। এই শাসনতেϴ
আমােদর আইনিবভাগেক ზধু আলাদা করাই নয়, তােক পিরপূণκ মযκাদা
έদওয়ার জনҝ έয বҝবѸা ςহণ করা হেয়েছ, তােত আইেনর শাসন সїেс
আমােদর মেন έকান সংশয় থাকা বাОনীয় নয়।"
Sirajul Haque, Advocate, Member of the Constituent Assembly
on 30.10.1972:
"έয ‘জুিডিসয়াল িসেѶম' আমরা িদেয়িছ, আিম গেবκর সেД বলেত পাির,
বсু রাϻ ভারতবষκও এখন পযκо তা িদেত পােরিন। έকননা, ভারতবেষκ
এখনও ‘জুিডিসয়ািরেক সѕূণκ পৃথক করা সјব হয়িন। আর, আমরা έচѭা
কেরিছ, আলাদা করার। ზধু হাইেকাটκ নয়, সুϕীম έকাটκ নয়- আমােদর
িনєতম ‘ জুিডিসয়াির’έকও ‘ এΝЊিকউΜটভ’ έথেক আলাদা করবার জনҝ
আমােদর সংিবধােন বҝবѸা কেরিছ। সুতরাং অিভেযাগ সতҝ নয় ৷"
Chairman of the Draft Constitution Committee and Law
Minister Dr Kamal Hossain said on 12.10.1972:
"আইেনর শাসন িনΝѥত করার উেгেশҝ Ѿাধীন িবচারিবভাগ ϕিতѮার
বҝবѸা করা হেয়েছ। িবচারিবভােগর শীষκেদেশ রেয়েছ সুϕীম έকাটκ। সুϕীম
έকােটκর দুইΜট িবভাগ থাকেব। হাইেকাটκ িবভাগ এবং আপীল িবভাগ। এই
আপীল িবভাগ হেব έদেশর চ ূ ড়াо আপীেলর έϠϏ। িনবκাহী িবভাগ έথেক
িবচারিবভাগেক পৃথক করারও বҝবѸা করা হেয়েছ।"
And on 30.10.1972:
"িবচারিবভাগ সїেс আর একটা কথা বলেত হয়। িনবκাহী িবভাগ έথেক
িবচারিবভাগেক পৃথক করার কাজটা সরাসিরভােব আমরা কের িদেয়িছ।
ϕѨ έতালা হেয়েছ έয, আমরা তা কিরিন। িকᅀ আমরা ϕথম িদেক
মূলনীিতর মেধҝ তা কের িদেয়িছ। তারপর, আবার যিদ একটΦ কѭ কের ১১৪
এবং ১১৫ অনুেИদ তাঁরা έদেখন, তাহেল বুঝেত পারেবন έয, এটার িবধান
করা হেয়েছ। দু' জায়গায় করলাম έকন, এ ϕѨ উঠেত পাের। ভিবষҝেত έয
আইন করা হেব, তা έযন এই িবধান অনুসাের করা হয়, έসজনҝ এই বҝবѸা।
অধѷন আদালত এবং έফৗজদারী আদালেতর মҝাΝজেϾটেদরেক আমরা
সুϕীম έকােটκর আওতায় িনেয় এেসিছ।
=13=
িনবκাহী িবভাগ έথেক িবচারিবভাগেক পৃথক করার দাবী আমােদর বቍিদন
আেগর পুরেনা দাবী। আমরা অতীেত έদেখিছ, িনবκাহী িবভােগর অধীেন
িবচারিবভাগ থাকার ফেল কীভােব তাঁেদর ϕভািবত করা হেয়েছ, কীভােব
ভয় έদখােনা হেয়েছ।
আইয়ুেবর আমেল আমার মেন আেছ, একজন έজলা-জজ সরকােরর
িবেд একটা “ইনজাংশন' িনেয়িছেলন। έসজনҝ তাঁেক সϵীেপ বদলী করা
হয়। কােজই এ έদেশর জাςত জনতা িনবκাহী িবভাগ έথেক িবচারিবভােগর
পৃথকীকরেণর দাবী তΦেলেছন।
কীভােব অতীেত িবচারিবভােগর Ѿাধীনতা খবκ করা হেয়েছ, তার বቍ নজীর
আেছ। έসজনҝ আইনজীবী ছাড়াও এ έদেশর জনসাধারণ িদেনর পর িদন
িবচারিবভাগেক িনবκাহী িবভাগ έথেক পৃথক করার দাবী জািনেয় এেসেছন।
আমরাই έস দাবী কেরিছ এবং এখন έযেহতΦ সুেযাগ έপেয়িছ, তাই έস দাবী
আমরা έমেন িনেয়িছ। দাবী-দাওয়া আমরাই। করতাম। তখন আমরা দাবী-
দাওয়া έমেন έনওয়ার সুেযাগ পাইিন। এতিদন পের আমরা এ সব দাবী-
দাওয়া পূরণ করার সুেযাগ έপেয়িছ। আমার মেন হয়, έকান-না-έকান সদসҝ
এর উপর একটা-না-একটা ϕѷাব পাস কেরেছন। তাই আজেক আমরা
έমেন িনলাম έয, িনবκাহী িবভাগ έথেক িবচারিবভাগেক পৃথক করা έহাক ।"
From these speeches of our Constitutional maker it is
unmistakably evident that ensuring the independence of judiciary and
making it separate from the executive were two primordial intentions
of our Constitution framers. In the aforementioned case laws of our
Apex Court such as “Masdar Hosen Case”, “10 Judges case”, “5th
Amendment Case”, “7th Amendment Case”, “13th Amendment
Case”, “16th Amendment Case” these primal intentions of our
Constitution Makers were pronounced recurrently.
Not only that, through the 15th Amendment of the Constitution
in the year of 2011, a separate Article was inserted regarding `Basic
Structure’ of the Constitution of Bangladesh. It is as follows:
=14=
“Basic provisions of the Constitution are not amendable
7B. Notwithstanding anything contained in article 142 of
the Constitution, the preamble, all articles of Part I, all
articles of Part II, subject to the provisions of Part IXA all
articles of Part III, and the provisions of articles relating to
the basic structures of the Constitution including article
150 of Part XI shall not be amendable by way of insertion,
modification, substitution, repeal or by any other means.”
These firm notions of the legislature was further reinforced
through inserting another Article which is as follows:
“Offence of abrogation, suspension, etc. of the Constitution
7A. (1) If any person, by show of force or use of force or by
any other un-constitutional means-
(a) abrogates, repeals or suspends or attempts or conspires
to abrogate, repeal or suspend this Constitution or any of
its article ; or
(b) subverts or attempts or conspires to subvert the
confidence, belief or reliance of the citizens to this
Constitution or any of its article,
his such act shall be sedition and such person shall be
guilty of sedition.
(2) If any person-
(a) abets or instigates any act mentioned in clause (1) ; or
(b) approves, condones, supports or ratifies such act,
his such act shall also be the same offence.
(3) Any person alleged to have committed the offence
mentioned in this article shall be sentenced with the
highest punishment prescribed for other offences by the
existing laws.”
=15=
These two Articles read with the Article 7 give us this certain
impression that `basic structures’ of the Constitution are not only
unbendable but also any attempt for deviating from such provisions is
a seditious offence.
As consultation with the CJB with primacy is basic structure as
per decision of the Apex Court, that automatically made an entry
within the purview of Article 7A read with Article 7B and 7, as laws
declared by the Appellate Division is binding under Article 111 of the
Constitution.
One thing that agitated our judicial mind is that the State did not
even challenge the decision of the Apex Court relating to the
mandatory consultation process with primacy rather executed the
same by taking both legislative actions by making necessary rules viz.
Rule 8A of the “বাংলােদশ জুিডিসয়াল সািভκস (সািভκস গঠন, সািভκস পেদ িনেয়াগ
এবং সামিয়ক বরখাѷকরণ ও অপসারণ) িবিধমালা, ২০০৭”; Rule 11 of the “বাংলােদশ
জুিডিসয়াল সািভκস (কমκѸল িনধκারণ, পেদাтিত, ছΦ Μটম
রী, িনয়ϴণ, শৃГলা-িবধান এবং চাক ু রীর
অনҝানҝ শতκাবলী) িবিধমালা, ২০০৭” and Rule 29 of the “বাংলােদশ জুিডিসয়াল সািভκস
(শৃГলা) িবিধমালা, ২০১৭” and took executive steps in accordance through
passing orders. In the said rules of the Judicial Service, the effect of
consultation with primacy of the Supreme Court has accommodated
in unambiguous terms and identical languages. For proper
appreciation of the matters of consultation and primacy exact version
of “বাংলােদশ জুিডিসয়াল সািভκস ( শৃГলা) িবিধমালা, ২০১৭ এর িবিধ-২৯” is shown
hereunder-
=16=
“২৯. সুϕীম έকােটκর পরামেশκর কাযκকরতা
(১) উপযুЅ কতৃ κপϠ সুϕীমেকােটκর পরামশκ অনুসাের এই িবিধমালায় িনধκািরত
সমেয়র মেধҝ ϕেয়াজনীয় সকল পদেϠপ ςহন কিরেব।
(২) উপ-িবিধ (১) এ বিণκত উপযুЅ কতৃ κপেϠর ϕѷাব ও সুϕীম έকােটκর পরামশκ
অিভт না হইেল έসইেϠেϏ সুϕীম έকােটκর পরামশκ ϕাধানҝ পাইেব।”
Well, subsequent to such clear-cut and patent verdict and
accomplishment by the Government i.e. the executive making
necessary rules on "consultation with primacy" and after the
enactment of the Fifteenth Amendment of the Constitution in 2011, is
there any scope at all to leave the matter of antecedent or conduct of a
Judge of the High Court Division in the hands of the executives or to
make their (executives) opinion dominant over the opinion of the CJB?
The answer is a big no.
Now, let’s recapitulate the Apex Court’s ruling on mandatory
consultation with the CJB with primacy in the `10 Judges Case’. After
examining the provisions of the Constitution along with a virtual
travel through the mind of best legal faculties of the subcontinent this
Division reached in a decision that consultation with the CJB coupled
with primacy over the opinion of the executive while appointing a
judge in the Supreme Court, is a basic structure of the Constitution.
However, the very next moment they invented a strange device that is
a dichotomized consultation process. The nature of this bifurcated
consultation process is such that it was divided in twofold stages:
1) Judicial acumen and
2) Antecedents.
=17=
Concerning judicial acumen of a potential Judge of the Supreme
Court, CJB’s opinion shall get primacy and the matters of antecedents
of such person executive shall say the final words. Well, if that is the
theory, then let’s visualize a scenario where CJB recommends a person
for appointment, but executive denied, then how it will be resolved?
There is no answer to this question in the said bifurcated consultation
process as formulated by the Division. It’s a supreme judicial impasse
and obvious result of such stand-off is that it is the executive that have
the final words and getting primacy over the opinion of the CJB, in
harsh reality.
It is absolutely undisputed that the CJB recommended both of
the appellant and the petitioner for being appointed as judge of the
Supreme Court after completion of two years tenure as Additional
Judge. What we have seen in the two matters in question is that the
executive disagreed with the CJB’s recommendation and finally both
of them were dropped from the list of appointments concerned
without knowing their faults. As there were no explanation of such
non-appointments, the persons were not able to defend themselves, in
addition, there were no such grievance mitigating mechanisms they
could resort. Even the CJB were in darkness regarding the causes of
the negation of his recommendations. These are absolute
embarrassments for the post of CJB too. These are the outcome of the
bifurcated consultation process.
=18=
In the logical fields Hegelian Dialectics is commonly accepted as
a best practice in resolving theoretical arguments. “Hegel’s dialectics”
refers to the special dialectical method of argument employed by the
19th Century German philosopher, G.W.F. Hegel. In a few words it
is an interpretive method in which the contradiction between a
proposition (thesis) and its opposition (antithesis) is resolved at a
higher level of truth (synthesis).
Like other “dialectical” methods, relies on a contradictory
process between opposing sides. Whereas Plato’s “opposing sides”
were people (Socrates and his interlocutors), however, what the
“opposing sides” are in Hegel’s work depends on the subject matter
he discusses. In his work on logic, for instance, the “opposing sides”
are different definitions of logical concepts that are opposed to one
another. In the Phenomenology of Spirit, which presents Hegel’s
epistemology or philosophy of knowledge, the “opposing sides” are
different definitions of consciousness and of the object that
consciousness is aware of or claims to know. As in Plato’s dialogues, a
contradictory process between “opposing sides” in Hegel’s dialectics
leads to a linear evolution or development from less sophisticated
definitions or views to more sophisticated ones later. The dialectical
process thus constitutes Hegel’s method for arguing against the
earlier, less sophisticated definitions or views and for the more
sophisticated ones later. Hegel regarded this dialectical method or
“speculative mode of cognition” as the hallmark of his philosophy.
=19=
If we take the CJB’s affirmative opinion as `Thesis’ and the
executive’s negative wish as `Anti-thesis’, then there must be a
`Synthesis’ for resolving such a supreme dilemma. Otherwise, that
won’t be a logical as well as scientific resolution of dispute. And such
a framework for these types of scientifically rational resolution of
difference of opinion is a sine qua non for a democratic, civilized and
modern welfare state.
As the subdivided consultation process lacks a ‘Synthesis’, it
became a half-baked one and anything half-baked is not good for
health, for taste as well.
Well, apart from epistemological aspect, ‘Synthesis’ is necessary
for some practical purposes too. For example, some objectionable or
unethical information regarding a potential judge could be received to
the end of the executive that were unnoticed by the head of the
judiciary during his/her tenure as an additional judge.
For better understanding we can study such a ‘Synthesis’
mechanism devised by one of our neighboring country India’s
Supreme Court. When there arise such type of divergence of opinion
between judiciary and executive regarding the appointment of a judge
in the High Courts and Supreme Court of India, then the executive
send back the recommendation with written explanation along with
other materials including various intelligence wings reports. Then the
matter is reconsidered by the judiciary. After such consideration, if the
judiciary reiterate the recommendation, then it is mandatory for the
=20=
executive. In this way, not only the imperative of having a ‘Synthesis’
is being fulfilled but also the primacy of the judiciary is upheld. We
can run through some of such “Reiterated Resolutions” uploaded in
the official web site of the Supreme Court of India in this web address:
https://main.sci.gov.in/collegium-resolutions.
It is to be noticed from the collegiums regulations found in the
above mentioned wed address that the `Classified Intel Reports’ were
provide to the judiciary in writing and excerpts from thereto were
disclosed publicly by the Apex Court Body for clarifications. The Apex
Court Body duly reconsidered the executive’s view based on Intel
Reports, re-discussed with the concerned body or person and then
reiterated its recommendation to the executive.
A logical and befitting ‘Synthesis’ could be as such:
If there is a disagreement between the judiciary and executive,
the reasons of such incongruity along with all the connected papers or
audio-visual substances be referred to the CJB immediately. After
getting such intimations from the executive, the CJB along with two
senior most judge of this Division shall enquire into the matters giving
parties concerned an opportunity for self defence and form an opinion
which shall be mandatory for the executive.
One thing must be borne in mind and act of functionaries of the
country is that in a state of written constitution, neither the
Government nor the Legislature or the Judiciary are Sovereign, it is
only the Constitution that is Sovereign and Supreme. Because,
=21=
constitution is the highest formal expression of the people. Article 7 of
the Constitution ordains as follows:
“Supremacy of the Constitution
7. (1) All powers in the Republic belong to the people, and
their exercise on behalf of the people shall be effected only
under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the
will of the people, the supreme law of the Republic, and if
any other law is inconsistent with this Constitution that
other law shall, to the extent of the inconsistency, be void.”
We too have a written Constitution. Our Legislature cannot
legislate in contravention of the provisions of the Constitution.
Government too cannot act violating the Constitution.
Now consider another aspect of these cases which is related with
Article 48(3). As we pointed earlier that though the President officially
appoints the Judges of the Supreme Court, as per constitutional
binding regarding the appointment of Judges of Supreme Court, the
President acts only in accordance with the advice of the Prime
Minister. We already graphically illustrated that in our Constitutional
framework Constitution only is sovereign entity not the executive or
legislature or judiciary; independence of judiciary and separation of
judiciary from executive and concerning the appointment of Supreme
Court Judges mandatory consultation with the CJB with primacy are
basic structures of our Constitution and the basic structures shall not
=22=
be amendable by way of insertion, modification, substitution, repeal or
by any other means.
In the `10 Judges case’ this Division firmly decided that:
“Therefore the expression "independence of judiciary" is
also no longer res-integra rather has been authoritatively
interpreted by this Court when it held that it is a basic
pillar of the Constitution and cannot be demolished or
curtailed or diminished in any manner accept by and
under the provision of the Constitution. We find no
existing provision of the Constitution either in Articles 98
or Article 95 of the Constitution or any other provision
which prohibits consultation with the Chief Justice.
Therefore, consultation with the Chief Justice and primacy
is in no way in conflict with Article 48(3) of the
constitution. The Prime minister in view of Article 48(3)
and 55(2) cannot advice contrary to the basic feature of the
constitution so as to destroy or demolish the independence
of judiciary. Therefore the advice of the Prime minister is
subject to the other provision of the Constitution that is
Articles 95, 98, 116 of the constitution.”
And in the operative part of the judgment of “10 Judges Case” it was
held that:
“3. Independence of judiciary affirmed and declared by the
Constitution is a basic structure of the Constitution and
cannot be demolished or diminished in any manner. There
=23=
is no provision in the Constitution either authorising the
President or for that matter the Prime Minister in view of
Article 48(3) of the Constitution to curtail or diminish such
independence.
4. Consultation with the Chief Justice with primacy of his
opinion in the matter of appointment of Judges and the
administration of judiciary is an essential part of
independence of judiciary ingrained in the very concept of
independence embedded in the principle of rule of law
and separation of judiciary from the executive and is in no
way in conflict with Article 48(3).”
There raised a question regarding Mr A.B.M. Altaf Hossain by
the learned Attorney General as to that before elevation to the
Supreme Court his aggregated tenure as a practicing Advocate in the
Supreme Court was less than 10 years in actual fact, though his date of
enrolment as an Advocate of the Supreme Court was beyond that
period. This question visualizes that before elevating him the
executive did not bother to probe his antecedents though the related
documents concerning his tenure as a practicing Advocate in the
Supreme Court were in the public domain. It indicates that he was
appointed at the whim of the executive without prior verifying his
credentials.
Appointment as a Judge in the Supreme Court is not a `hire and
fire’ type of job. It is one of the topmost appointments of the Country
from the normative view point as well as from public confidence and
requires citizen’s esteem. Therefore, vast legal experiences with
=24=
appropriate academic requirements are sine qua non for this post. This
should not be taken as an entry post in the Supreme Court. The entry
post in our judicial system is the post of Assistant Judge and
membership in District Bar Association. As per service Rules a person
can apply for such posts up to 30 years of age and in some instance
that could be 32 years and on an average 1 - 1.5+ years needed for such
a person to be appointed as a judicial officer by the Bangladesh
Judicial Service Commission. After overcoming many service related
barriers for usually 15-20 years (with some exceptional cases with less
service tenure) that person could become a District and Sessions
Judge. High Court Division of the Supreme Court usually hears
appeal, revision etc from the judgments and orders of the District and
Sessions Judges, that is, Judges of the High Court Division not only
judges the District and Sessions Judges but also have superintendence
and control over all courts and tribunals subordinate to it as per
Article 109 of the Constitution. And while Judges from the Bangladesh
Judicial Service are elevated to the Supreme Court they are to be
District Judges invariably, at least in practice, though as per Article
95(2)(b) Members of District Judiciary shall not be qualified for
appointment as a Judge unless he/she has, for not less than ten years,
held judicial office in the territory of Bangladesh.
On the other hand, in our legal system a person can be enrolled
as an Advocate of the High Court Division of the Supreme Court well
before aged 30 years. The appellant herein was enrolled in the High
=25=
Court Division at the age of almost 26. There are lots of instances
where advocates were enrolled at the High Court Division even earlier
ages than the appellant.
In such circumstances, I’m quite unable to understand how the
requirement of 10 years' practice under Article 95(2)(a) of the
Constitution suffice with simplicities the period of enrolment for 10
years instead of actual continuous or aggregate experience at the Bar.
It mandatorily be continuous or aggregate experience without fail.
Moreover, our Constitution did not ordain that it should be 10
years rather qualified with `not less than ten years’. Thus, our
Constitution makers bestowed a higher degree of discretion upon the
‘Judge Makers’ of our legal system and that responsibility have to be
discharged with utmost sincerity and responding the call of the
conscience.
The works of the judges are the art of judging a case impartially,
writing judgments and orders thereon and presiding over the court.
After 25-30 years of investing in these arts, at the fag end of their
career a judicial officer could become a Judge of the Supreme Court.
Therefore, while appointing judges having direct lack of the above
mentioned arts of judging, there age of actual experience in legal
arena, coupled with merit and other extraordinary qualities must be
borne in mind of the appointing authorities.
Now, let’s consider the case of Mr Md Farid Ahmed Shibly.
Being appointed as a Munsif, the name of the then entry post in the
=26=
judicial service, in the year of 1983 he got promotions as Sub-Judge
(now Joint District Judge), Additional District Judge and District Judge
in the year of 1994, 1999 and 2004 respectively. After serving as
District and Sessions Judge, Gazipur; Secretary, Bangladesh Judicial
Service Commission and Registrar, Supreme Court (now Registrar
General) he was elevated as an Additional Judge of the Supreme
Court.
His portfolio suggests that prior to elevation his service record
was clean and excellent on both counts of on the Bench and
administrative affairs.
In our country while a labourer are to be dismissed he has to be
served a show cause notice to explain his/her defences under the
Labour Laws. However, an Additional judge of the Supreme Court
can lost his job without knowing the reasons.
Non-confirmation of an Additional judge of the Supreme Court
as permanent Judge is of course stigmatic. Because, such a news of
non-confirmation become a national daily newspaper, TV, radio and
electronic media headlines. Everyone who read, watch and hear this
news want to know why that person was not confirmed, there must be
some problem with him etc.
Our Apex Court in many cases decided that when someone
striped with jobs he/she must get an opportunity to explain his views
before being sacked. Principle of natural justice too requires that if any
=27=
decision taken against anyone he/she must know the reasons thereto
and have the opportunity in presenting his/her defenses, if any.
The non-confirmation of Mr Md. Farid Ahmed Shibli and Mr.
A.B.M. Altaf Hossain as permanent Judge of the Supreme Court is
thus a clear violation of Principle of natural justice as well as settled
case laws concerned of the Apex Court.
I am greeeing with the opinion of the learned brothers
Borhanuddin J., M. Enayetur Rahim J., Md. Ashfaqul Islam J., Md.
Abu Zafor Siddique J. and Jahangir Hossain J., to consider the case of
the appellant by the appropriate authority.
However, I am of the view that the leave petitioner’s case may
also be considered by the appropriate authority.
J.
Obaidul Hassan, J. The Civil Appeal and both the Civil
Petitions for Leave to Appeal involving similar question of laws and
almost identical facts having been heard together are now being
disposed of by this common judgment.
Civil Appeal No. 232 OF 2014:
The instant Appeal by leave granting order dated 06.11.2014
passed by this Division in Civil Petition for Leave to Appeal No.2626
of 2014 filed against the judgment and order dated 24.09.2014 passed
=28=
by the High Court Division in Writ Petition No.7489 of 2014
summarily rejecting the Writ Petition.
The appellant as petitioner filed the Writ Petition No. 7489 of
2014 challenging non-appointment of the petitioner as Judge of the
High Court Division of the Supreme Court of Bangladesh in violation
of Article 95 of the Constitution and the principle settled by the
Appellate Division of the Supreme Court of Bangladesh in the case of
Bangladesh & Ors. vs. Md. Idrisur Rahman, Advocate & Ors.
reported in 29 BLD(AD)79 despite of the recommendation of the
Hon’ble Chief Justice of Bangladesh without any reason.
The petitioner filed the aforesaid Writ Petition stating, inter alia,
that he was a practicing Advocate of this Court and was holding
requisite qualifications to be appointed as a Judge of the High Court
Division of the Supreme Court of Bangladesh. He did his graduation
and post-graduation on Law from the University of Rajshahi securing
1st Class in LL.M. He also acquired graduation and post-graduation
diploma on Law from the UK. He was called to the Bar as a Barrister
by the prestigious Society of Lincoln’s Inn, London, U.K. He was
enrolled with the Bangladesh Bar Council as an Advocate on
06.12.1998 and was permitted to practice in the High Court Division
on 18.06.2000 and the Appellate Division on 18.05.2011. He acted as
the Deputy Attorney General for Bangladesh and as Member of the
Board of Governors of Bangladesh Open University. Considering his
=29=
such qualifications and good antecedents, the President of Bangladesh
appointed him as the Additional Judge of the Supreme Court of
Bangladesh, High Court Division along with five other Additional
Judges under Article 98 of the Constitution, vide notification
No.10.00.0000.128.011.010.2012-816 dated 13.06.2012. Accordingly, he
took oath of office on 14.06.2012 and had been functioning as Judge
since then until his name was dropped by the impugned action.
During this period, he delivered numerous judgments which have
been highly acclaimed by the Bar and the Bench. Before expiry of two
years’ tenure of Additional Judge, the petitioner along with five other
Additional Judges, submitted ten judgments authored by each of them
as required by the Honourable Chief Justice of Bangladesh and the
said judgments were distributed among the senior most Judges of the
Appellate Division for their opinion. On being satisfied with the
performance and integrity and all other aspects of all the six
Additional Judges including the petitioner the Honourable Chief
Justice recommended all of them for appointment as permanent
Judges of the High Court Division under Article 95 of the Constitution
and such fact of recommendation by the Chief Justice had been widely
published in the daily newspapers. However, the name of the
petitioner was dropped from the list of permanent Judges, although
other five Additional Judges were duly appointed by the President,
vide Gazette Notification No.10.00.0000.128.011.010.2012-472 dated
09.06.2014. Thereafter, the petitioner tried his best to know the reasons,
=30=
but could not know anything, though, pursuant to the said
appointment notification, his colleague Additional Judges had been
sworn in as permanent Judges by the Honourable Chief Justice and
have been functioning as such in the High Court Division. The
executive most arbitrarily dropped the name of the petitioner from the
list of six Additional Judges even after recommendation by the
Honourable Chief Justice and the said impugned order affected the
very independence of the Judiciary, which is one of the basic
structures of the Constitution as well as the same has labelled a stigma
with the integrity and quality of the petitioner. In such a situation, the
writ petitioner moved before the High Court Division.
Upon hearing the Writ Petition, the High Court Division rejected
the same summarily by judgment and order dated 24.9.2014.
Against the judgment and order dated 24.09.2014 passed by the
High Court Division the writ petitioner filed the Civil Petition for
Leave to Appeal No.2626 of 2014 and after hearing the parties this
Division granted leave by an order dated 06.11.2014 and hence the
instant Civil Appeal.
Civil Petition for Leave to Appeal No. 602 OF 2017:
The Civil Petition for Leave to Appeal is directed against the
judgment and order dated 12.02.2017 passed by the High Court
Division in Writ Petition No. 1948 of 2017.
=31=
The case of the petitioner in Civil Petition for Leave to Appeal
No. 602 of 2017 is that the petitioner is a law abiding citizen and
permanent resident of Bangladesh. He had obtained B.S.C. Degree
from Sunamgonj College under the University of Chittagong in the
year 1977. He had obtained LL.B. Degree from the University of
Dhaka in 1981. Subsequently, he was appointed as Munsif by the
Government of Bangladesh vide Memo dated 5th July, 1983 and his
service was confirmed as of his joining date on 17.07.1983. Thereafter,
he was promoted to the post of Sub-Judge from the post of Assistant
Judge on 31.05.1994 and then he was appointed as the Assistant
Sessions Judge. Later on, he was promoted to the post of Additional
District & Sessions Judge and subsequently he was appointed as the
Additional Registrar, Appellate Division, Supreme Court of
Bangladesh vide Memo dated 15.01.2002. Thereafter he was promoted
to the post of District Judge and posted in situ. On 15th May, 2008, the
petitioner was appointed as the District & Sessions Judge, Gazipur.
Subsequently, the petitioner was transferred to and posted on
deputation as the Secretary, Bangladesh Judicial Service Commission
Secretariat vide Memo dated 05.07.09. Thereafter the petitioner was
appointed as the Registrar, Supreme Court of Bangladesh and served
there until his elevation as an Additional Judge of the Supreme Court.
The petitioner has performed many important responsibilities at
different positions throughout his long career. Having been satisfied
with his academic and professional performance, the Honourable
=32=
President of the People’s Republic of Bangladesh after consultation
with the Honorable Chief Justice of Bangladesh appointed him as an
Additional Judge of the High Court Division of Supreme Court of
Bangladesh along with 9 (nine) other Additional Judges under Article
98 of the Constitution of the People’s Republic of Bangladesh for a
period of two years vide notification dated 9th February, 2015 and he
was sworn in by the Honourable Chief Justice of Bangladesh on
12.02.2015 as an Additional Judge of the Supreme Court of
Bangladesh. After appointment as Additional Judge, he rendered his
service most honestly, sincerely and diligently to the full satisfaction of
the Chief Justice of Bangladesh and others. The petitioner delivered
many substantial judgments in previous two years, which was
appreciated by many. During his tenure as an Additional Judge none
raised any objection to his integrity and merit whatsoever. As an
Additional Judge the petitioner performed his function as a second
judge in the Division Benches of High Court Division. He, as a second
judge, contributed in different jurisdictions and also to the legal arena
in the Country. He had never compromised justice and always upheld
unimpeachable integrity. Having been satisfied on the performance
and all other requisite qualifications, the Chief Justice of Bangladesh
recommended the name of the petitioner as well as those of the eight
others to the Honourable President for appointment as the Judges of
the High Court Division after forming opinion on their suitability,
integrity and merit. The Hon’ble President, however, appointed eight
=33=
others under Article 95 of the Constitution except the petitioner
without communicating any reason to the Chief Justice. The
appointment of the eight Judges had been published vide Notification
dated 7th February, 2017. A news item was published on 9th February,
2017 in the daily newspaper titled ‘Jugantor’ in respect of confirmation
of appointment of eight Additional Judges in the High Court Division.
The said news item also reported that the Honourable Chief Justice of
Bangladesh recommended the name of the petitioner along with eight
others Additional Judge to the Honourable President for appointment
as a Judge of the High Court Division of the Supreme Court of
Bangladesh under Article 95 of the Constitution. Despite such
recommendation of the Chief Justice, the Government has not the
petitioner as Judge of the High Court Division. Finding no other
efficacious remedy the petitioner filed the Writ Petition No. 1948 of
2017. The petitioner by filing the Writ Petition No. 1948 of 2017 before
the High Court Division has called in question the legality and
constitutionality of dropping him from the list of the Additional
Judges to be appointed permanently as Judges of the High Court
Division of the Supreme Court of Bangladesh under Article 95 of the
Constitution and the principle settled by this Division in the case of
Bangladesh Vs. Idrisur Rahman 29 BLD (AD) 79 despite the
recommendation of the Honourable Chief Justice of Bangladesh
without any reason.
=34=
Upon hearing the High Court Division disposed of the Writ
Petition No. 1948 of 2017 with some observations by judgment and
order dated 12.02.2017 and hence the Civil Petition for Leave to
Appeal No. 602 of 2017.
Mr. Probir Neogi along with Mr. Momtazuddin Fakir, Mr.
Motahar Hossain, Mr. M. Sayed Ahmed all senior Advocates and Mr.
Mahbub Shafique, Ms. Anita Ghazi Rahman, Ms. Suvra Chakravorty,
Mr. Manzur-Al-Matin, Mr. Imranul Kabir and Mr. Khandaker Reza-E-
Raquib, all Advocates appearing for the appellant in Civil Appeal No.
232 of 2014 contended that the appellant had been denied
confirmation in clear and flagrant violation of the provisions of the
Constitution and law declared by the Appellate Division inasmuch as
there is an expressed provision in Article 95(1) of the Constitution that
the Judges of the Supreme Court of Bangladesh shall be appointed by
the Hon’ble President of the People's Republic of Bangladesh after
consultation with the Hon’ble Chief Justice and the Chief Justice
having recommended the appellant as Judge of the High Court
Division for confirmation and appointment under Article 95, the
dropping of the name of the appellant without any cogent reason is
totally unconstitutional. The learned Counsels for the appellant
contended next that by the illegal action of the executive the
independence of the judiciary has been diminished and since the
independence of the Judiciary is a basic structure of our Constitution
and under Article 7B of the Constitution it cannot be amended by the
=35=
parliament and there being no provision in the Constitution
authorizing the President under Article 48(3) to curtail or diminish the
independence of judiciary, non-appointment of the appellant ignoring
the recommendation/opinion of the Chief Justice was an act of
flagrant violation of the basic structure of the Constitution. The
learned Counsels for the appellant argued next that no question has
ever been raised against the antecedents of the appellant rather having
found the performance of appellant satisfactory as an Additional
Judge, the Chief Justice has recommended the appellant for
confirmation/appointment under Article 95 of the Constitution
inasmuch as the consultation process being initiated by the executive
whose opinion in the matter of antecedents being already there and
the Chief Justice in the process of consultation had the benefit of
examining the opinion of the executive and since the Chief Justice
recommended the appellant for appointment disregarding/overruling
such opinion, there is no scope on the part of the executive to drop the
name of the appellant from the list of the Judges to be appointed
under Article 95. Thus, the action of the executive denying
confirmation/appointment of the appellant is wholly unconstitutional,
arbitrary and naked interference in the affairs of the judiciary
inasmuch as an act done without any lawful authority. The learned
Counsels for the appellant submitted further that under Article 95(1)
of the Constitution since the judges of the Supreme Court shall be
appointed by the President after consultation with the Chief Justice,
=36=
the recommendation of the Chief Justice shall get primacy over the
opinion of the executive in the matter of appointment of Judges,
therefore, the executive was under serious constitutional obligation
not to drop the name of the appellant but to confirm him pursuant to
the recommendation of the Chief Justice who is the best person to
judge and assess the ability and competence of the appellant and the
appellant has maintained highest professional standard as an
Additional Judge and delivered some brilliant judgments as an author
Judge, therefore, the Appeal is liable to be allowed. The learned
Counsels submitted next that the executive by not appointing the
appellant after recommendation of the Chief Justice has reduced and
diminished the power, position and role of the Chief Justice inasmuch
as it was an act of undermining the authority of the head of the
judiciary as well since in the impugned judgment of the High Court
Division there is an observation that no way out was given in the Ten
Judges’ case when the question of difference of opinion between the
Chief Justice and the executive would arise, therefore to resolve the
said issue and also to find a way out in such situation it is essential to
allow the instant Appeal by reviewing the Judgment of the Ten
Judges’ case. The learned counsels for the appellant fortified their
arguments by putting reliance on some case laws decided in the
Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52
DLR (AD) 82; S.P. Gupta Vs. Union of India (UOI) and ors, AIR 1982
SC 149; Raghib Rauf Chowdhury Vs. Government of Bangladesh, 69
=37=
DLR 317; Bangladesh and others Vs. Idrisur Rahman, Advocate and
others, 29 BLD (AD) 97 etc.
Mr. Manzill Murshid, learned senior Advocate appearing for the
petitioner in Civil Petition for Leave to Appeal No. 602 of 2017
submitted that the petitioner being a member of Bangladesh Judicial
Service served from 17.7.1983 to 10.2.2015 holding different posts and
at the fag-end of the service he had been the Registrar of Bangladesh
Supreme Court wherefrom he was appointed as an Additional Judge
of the High Court Division under Article 98 of the Constitution and
took oath on 12th February, 2015. Although all Additional Judges who
had been appointed along with the petitioner were confirmed and
appointed as Judge of the High Court Division the petitioner was
dropped from the list vide notification dated 07.02.2017 of the Ministry
of Law, Justice and Parliamentary Affairs. The learned senior Counsel
contended next that after issuance of the impugned notification dated
07.02.2017 the petitioner came to know from a news caption of ‘The
Daily Jugantor’ published on 09.02.2017 that the then Chief Justice
recommended all Additional Judges including the petitioner for
appointment under Article 95 of the Constitution but in violation of
the constitutional provisions the executive dropped the petitioner
without showing any cogent reason. The learned senior Counsel
contended next that according to Article 95(1) of the Constitution, a
Judge shall be appointed by the President after consultation with the
Chief Justice and in the instant case the Honourable Chief Justice
=38=
recommended the name of the petitioner along with eight others but
disregarding that recommendation of the Chief Justice, the petitioner
alone was dropped out which is a clear violation of the constitutional
provision of Article 95. Therefore, the petitioner is entitled to be
appointed as a Judge of the High Court Division. The learned senior
Counsel submitted next that the process by which the Judges of the
Supreme Court are appointed, is the key to both reality and perception
of the independence of judiciary and the whole constitutional scheme
is to shut the doors of interference against the executive under lock
and key and therefore the prudence demands that after shutting the
door of interference the key should not be left in possession of the
executives. Disregarding the recommendation of the Chief Justice by
the executive means snatching the very key of the door of interference
by the executive away from the control of the judiciary which is
tantamount to a denial of the very concept and basic principle of the
independence of judiciary. The learned senior Counsel for the
petitioner argued next that according to Article 48(3) of the
Constitution in exercise of all functions, save only that of appointing
the Prime Minister and the Chief Justice, the President shall act in
accordance with the advice of the Prime Minister. Under Article 95 of
the Constitution in appointing Judges of both Division of the Supreme
Court, the President shall consult the chief Justice and act in
accordance with the advice of the Prime minister. In the Ten Judges’
case it is held that consultation with the Chief justice and primacy of
=39=
the opinion of the Chief Justice is in no way in conflict with Article
48(3) of the Constitution. In view of Articles 48(3) and 55(2) the Prime
Minister cannot advice the President anything contrary to the basic
principle and structure of the Constitution. The independence of
judiciary being the basic principle and structure of our Constitution,
consultation with the Chief Justice in the matter of appointment of
Judges with its primacy should be considered as an essential part
thereof. After the decision of Ten Judges’ case Article 95 was amended
by way of 15th Amendment in 2011 and it becomes imperative for the
executive to consult the Chief Justice in appointing Judge of the High
Court Division and in this regard the opinion of the Chief Justice will
get primacy. The learned senior Counsel contended next that it is held
in the landmark Masder Hossain’s case ( 52 DLR(AD) 82) that in
exercising control and discipline of persons employed in the judicial
service and magistrates exercising judicial functions under article 116
the views and opinion of the Supreme Court shall have primacy over
those of the executive. The Government did not even challenge the
above decision concerning the consultation with primacy. The learned
senior Counsel contended further that in the Ten Judges’ case (17
BLT(AD) 231) it has been observed that the term ‘consultation’ was
considered in Masdar Hossain’s case in the light of Article 116 of the
Constitution but nevertheless the same principle all the more applies
in the matter of appointment of Judges of the Supreme Court under
Articles 98 and 95 of the Constitution because without the
=40=
independence of the Supreme Court there cannot be any
independence of the subordinate Courts and minus the consultation
and primacy the separation of judiciary from the executive will be
empty words. The learned senior Counsel contended next that the
petitioner came across 32 years holding different posts in the
subordinate judiciary during which all matters including antecedents
had been subject to scrutiny and supervision of the Supreme Court
under Articles 109, 116, 116A of the Constitution. During the
petitioner’s such long career in the judiciary he did never ever face any
proceeding or complaint on matter of discipline or antecedent. There is
no statement from the executive that the government ever consulted
the Chief Justice on any matter of antecedent of the petitioner. Thus,
on any vague plea of antecedent, it would be unjust to deprive the
petitioner of his legitimate right or expectation of being appointed
under Article 95 of the Constitution. The learned senior Counsel
contended further that the petitioner was initially appointed as an
Additional Judge under Article 98 of the Constitution and at that time
the President on all areas including antecedents and judicial
performance consulted the Chief Justice. At that time no adverse
report or allegation revealed from the petitioner’s service record or
conduct as a result he was appointed as an Additional Judge under
Article 98 of the Constitution. In such a situation, in the process of
appointment under Article 95 of the Constitution the petitioner was
not supposed to be subjected again to any further scrutiny what so
=41=
ever. The learned senior Counsel further submitted that the petitioner
as an Additional Judge under Article 98 had performed all judicial
works satisfactorily and since the Honourable Chief Justice had
recommended his name along with eight others for appointment
under Article 95, he has, therefore, not only a legitimate expectation
rather acquired a constitutional right for being confirmed and
appointed under Article 95 of the Constitution with effect from
07.02.2017 or 11.02.2017 because of the fact that such convention being
followed in this country for more than over last 60 years. The learned
senior Counsel, in fine, submitted that for doing complete justice
under Article 104 of the Constitution the executive is required to be
directed to appoint the petitioner as a Judge of the High Court
Division within a specific deadline giving all arrear remunerations,
benefits and privileges with service-continuity with effect from
11.02.2017.
Per contra, Mr. A.M. Amin Uddin, Attorney General with Mr.
Mohammad Mehedi Hassan Chowdhury, Additional Attorney
General, Mr. Md. Mojibur Rahman, Assistant Attorney General, Mr.
Mohammad Saiful Alam, Assistant Attorney General and Ms.
Tamanna Ferdous, Assistant Attorney General appearing for the
respondents in all the cases strenuously opposed the submissions
made on behalf of the appellant and the petitioner. They submitted
that in the case of Bangladesh and others Vs. Md. Idrisur Rahman and
others reported in 29 BLD (AD) 79 this Court having held that the
=42=
opinion of the executive will have dominance in the matter of
antecedent of a Judge of the High Court Division and in the instant
case considering the antecedent of the appellant the Honourable
President of Bangladesh has not appointed him as a permanent Judge
of the High Court Division and the same does not require any
interference by this Court as well. The learned Attorney General along
with Deputy Attorney General and Assistant Attorney General for the
respondents contended next that the Honourable President appointed
the appellant in the year 2012, the Honourable President having not
appointed him as permanent Judge in the year 2014, and in the
meantime there has been no change of Government, it cannot be said
that the appellant was victim of political reasons and there is nothing
to show that for an ulterior reason the appellant has not been
appointed as a permanent Judge and as such there is no merit of this
Appeal. The learned Attorney General argued next that Article 95(2)(a)
of the Constitution requires that to be elevated in the Bench an
advocate must have 10 years’ practicing experience in the Supreme
Court of Bangladesh. By referring Al- Jehad Trust case reported in
PLD 1996 SC 324 the learned Attorney General submitted that the
requirement of 10 years’ practice under Article 193(2)(a) of the
Constitution of Pakistan relates to the experience/ practice at the Bar
and not simpliciter the period of enrolment. By referring the Mahesh
Chandra Gupta’s case reported in (2009) 8 SCC 273 the learned
Attorney General submitted next that the decision of Indian Supreme
=43=
Court passed in the aforesaid case is not applicable in the case in hand.
The facts of the instant case is totally distinguishable from the Mahesh
Chandra Gupta’s case. In the case of Mahesh Chandra Gupta, the
petitioner prayed for issuance of Quo waranto directing an Additional
Judge of Allahabad High Court (Respondent No. 3 of Mahesh
Chandra Gupta’s case) for showing cause upon what authority the
respondent No. 3 was holding his office and to justify the
constitutionality of his appointment as a judge of the Allahabad High
Court. In the said case the issue was that, if a person after having
remained an advocate for some time, ceases to practice and employs
himself for earning, and thereafter holds an office of a Member of the
Tribunal, the period of his holding the office as a Member of Tribunal
cannot be computed or taken into account with the aid of Explanation
(aa) to Article 217(2)(b) of the Constitution of India. Applying the
principles with regard to entitlement to practice and computability of
the period during which respondent No. 3 has worked in ITAT
(Income Tax Appellate Tribunal), the Supreme Court of India held that
he stood qualified for appointment as a Judge of the Allahabad High
Court. Therefore, the decision of Mahesh Chandra Gupta’s Case is not
applicable in the instant Civil Appeal. The learned Attorney General
contended next that from the Annexures- A, A-1 & A-2, it appears that
after being enrolled in the High Court Division of the Supreme Court
of Bangladesh on 18.06.2000, the appellant stayed in the United
Kingdom (UK) at least till 13.10.2005 on which date he was called to
=44=
the Bar of England and Wales. Therefore, it is apparent that after the
date of enrolment in the High Court Division on 18.06.2000 the
appellant stayed in UK for a period of minimum 5(five) years till
13.10.2005. Accordingly, the appellant was elevated in the Bench as an
Additional Judge of the Supreme Court of Bangladesh on 13.06.2012
having only 7 (seven) years’ of practice in the High Court Division
instead of 10 years’ practicing experience. Apart from this the
appellant did not mention anywhere in the Writ Petition when he
returned back in Bangladesh and started practice as an advocate in the
Supreme Court of Bangladesh. Last but not least, the learned learned
Attorney General argued that according to Article 48(3) of the
Constitution the Honourable President is required to act as per advice
of the Honourable Prime Minister regarding the appointment of
Judges in the High Court Division and the communication between
the Honourable Prime Minister and the Honourable President
regarding appointment of Judge is privileged one and it cannot be
inquired into before any court of law and hence, after consultation
with the Honourable Chief Justice as per Article 95 of the Constitution
when the Honourable President takes advice from the Honourable
Prime Minister and takes decision as per the direction of the
Honourable Prime Minister then as per Article 48(3) the whole process
of appointing/confirming Judges becomes a privileged one and the
same cannot be inquired into before any court of law and as such the
=45=
Civil Appeal and other Civil Petitions for leave to Appeal are liable to
be dismissed.
At this juncture, let us have a brief overview of the constitutional
scheme of our country as regards appointment of Judges of the
Supreme Court.
Article 98 of the Constitution empowers the President to appoint
Additional Judges to the Supreme Court for a period not exceeding
two years. Article 98 provides that-
“98. Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any temporary
period:
Provided that nothing in this article shall prevent a person
appointed as an Additional Judge from being appointed as
a Judge under article 95 or as an Additional Judge for a
further period under this article.”
Article 95(1) of our original Constitution enshrines that-
“95(1) The Chief Justice shall be appointed by the
President, and the other Judges shall be appointed by the
President after consultation with the Chief Justice.”
Thus, Article 95(1) of our original Constitution had the provision
requiring the President to consult with the Chief Justice in case of
=46=
appointment of Judges of the Supreme Court. Later, through the 4th
Amendment Article 95(1) was amended omitting the provision of
requirement of consultation with the Chief Justice while appointing
the Judges of the Supreme Court. Even though through judicial
pronouncement in various cases including the case of Bangladesh and
others vs. Md. Idrisur Rahman, Advocate & others, reported in 29
BLD(AD) 79 (popularly known as Ten Judges’ Case) in view of the
longstanding and consistent constitutional convention and practice the
requirement of consultation with the Chief Justice was established.
Again, with the enactment of 15th Amendment to the Constitution, the
provision of Article 95(1) contained in the original Constitution had
been restored requiring the President to appoint the Judges of the
Supreme Court in consultation with the Chief Justice. It is apparent
from the record that the cause of action in the case in hand arose on
09.06.2014 while 15th Amendment was enacted in the year 2011.
Therefore, it is settled position of law that in case of appointment of
Judges of the Supreme Court by the President the requirement of
consultation with the Chief Justice is essential and in the case in hand
the provision of consultation with the Chief Justice being essential
there is no controversy as regards doing the same. In the above
backdrop we do not dilate our discussion on the issue whether the
consultation with the Chief Justice is imperative or not.
=47=
Under the constitutional scheme of our country the President is
the Constitutional head of the State and of the executive government.
Article 48 of the Constitution lays down that-
“48.(2) The President shall, as Head of State, take
precedence over all other persons in the State, and shall
exercise the powers and perform the duties conferred and
imposed on him by this Constitution and by any other law.
(3) In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
article 95, the President shall act in accordance with the
advice of the Prime Minister:
Provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
So, according to Article 48(3) of the constitution, except in the
case of appointing the Prime Minister and the Chief Justice, the
President, while exercising, all his functions shall act as per the advice
of the Prime Minister. According to Article 48(3) of the constitution the
question whether any, and if so what, advice has been tendered by the
Prime minister to the President shall not be inquired into by any court.
In the democratic form of government existing in our country, the
President is normally vested with the executive power of the State
which, in fact, is to be exercised by the Council of Ministers since the
President is to act on the advice of the ministers led by the Prime
=48=
Minister. In this regard Article 55(1)(2) of the Constitution is relevant
to extract below:
“55. (1) There shall be a Cabinet for Bangladesh having the
Prime Minister at its head and comprising also such other
Ministers as the Prime Minister may from time to time
designate.
(2) The executive power of the Republic shall, in
accordance with this Constitution, be exercised by or on
the authority of the Prime Minister.”
Article 52 lays down that the President may be impeached on a
charge of violating this Constitution or of grave misconduct, preferred
by a notice of motion signed by Majority of the total members of
Parliament in the manner prescribed in Article 52. The president is
thus duty bound to act in consultation with the Prime Minister. In
view of the above discussion it is evident that while appointing the
Judge of the Supreme Court under Articles 95(1) and 98 the president
is to consult the Prime Minister for his/her advice as well as the Chief
Justice. Now an issue arises that which consultation between the two
functionaries will get the primacy.
In the case of S.P. Gupta and others vs. President of India and
others, reported in AIR1982 SC 149, P.N. Bhagwati, J. observed in the
following:
“29..........................................................................If we look at
the raison detre of the provision for consultation enacted in
cl.(1) of Art. 217, it will be obvious that the opinion given
=49=
by the Chief Justice of the High Court must have at least
equal weight as the opinion of the Chief Justice of India,
because Ordinarily the Chief Justice of the High Court
would be in a better position to know about the
competence, character and integrity of the person
recommended for appointment as a Judge in the High
Court. The opinion of the Governor of the State, which
means the State Government would also be entitled to
equal weight, not in regard to the technical competence of
the person recommended and his knowledge and
perception of law which the Chief Justice of the High
Court would be the proper person to express an opinion,
but in regard to the, character and integrity of such person,
his antecedents and his social philosophy and value-
system. So also the opinion of the Chief Justice of India
would be valuable because he would not be affected by
caste, communal or other parochial considerations and
standing outside the turmoil of local passions and
prejudices, he would be able to look objectively at the
problem of appointment. There is therefore, a valid and
intelligible purpose for which the opinion of each of the
three constitutional functionaries is invited before the
Central Government can take a decision whether or not to
appoint a particular, person as a Judge in a High Court.
The opinion of each of the three constitutional
functionaries is entitled to equal weight and it is not
possible to say that the opinion of the Chief Justice of India
must have primacy over the opinions of the other two
constitutional functionaries. If primacy were to be given to
the opinion of the Chief Justice of India, it would, in effect
and substance, amount to concurrence, because giving
=50=
primacy would mean that his opinion must prevail over
that of the Chief Justice of the High Court and the
Governor of the State, which means that the Central
Government must accept his opinion. But as we pointed
out earlier, it is only consultation and not concurrence of
the Chief Justice of India that is provided in cl.(1) of
Art.217. When, during debates in the Constituent
Assembly, an amendment was moved that the
appointment of a Judge of a High Court or the Supreme
Court should be made with the concurrence of the Chief
Justice of India, Dr. B.R. Ambedkar made the following
comment which is very significant:
“With regard to the question of the concurrence of
the Chief Justice, it seems to me that those advocate
that proposition seem to rely implicitly both on the
impartiality of the Chief Justice and the soundness of
his judgment. I personally feel no doubt that the
Chief Justice is a very eminent person. But after all,
the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as
common people have; and I think, to allow the Chief
Justice practically a veto upon the appointment of
judges is really to transfer the authority to the Chief
Justice which we are not prepared to vest in the
President or the Government of the day. I, therefore,
think that that is also a dangerous proposition.”
It is, therefore, clear that where there is difference of opinion
amongst the constitutional functions regarding the appointment of a
Judge to a High Court. The opinion of none of the constitutional
functionaries is entitled to primacy but after considering the opinion of
=51=
each of the constitutional functionaries and giving it due weight, the
Central Government is entitled to come to its own decision as to which
opinion It should accept in deciding whether to appoint the person as
a Judge. Also, where a Judge of the Supreme Court is to be appointed,
the Chief Justice of India is required to be consulted. However, again,
it is not concurrence, but only consultation and the Central
Government is not bound to act in accordance with the opinion of the
Chief Justice of India. The ultimate power of appointment rests with
the Central Government and that is in accordance with the
constitutional practice prevailing in all democratic countries. Even in
the United Kingdom, a country from which we have inherited our
system of administration of justice and to which many of our
anglophiles turn with reverence for inspiration and guidance, the
appointment of High Court Judges is made by or on the advice of the
Lord Chancellor, who is a member of the Cabinet while appointments
to the Court of appeal and the House of Lords and to the offices of
Lord Chief Justice Master of the Rolls and President of the family
Division are made on the advice of the Prime Minister after
consultation with the Lord Chancellor. Thus, the appointment of a
Judge belonging to the higher echelons of judicial service is wholly in
the hands of the Executive. So also, in the commonwealth countries
like Canada, Australia and New Zealand, the appointment of High
Court and Supreme Court Judges is made by the Executive. This is, of
course, not an ideal system of appointment of Judges, but the reason
=52=
why the power of appointment of Judges is left to the Executive
appears to be that the Executive is responsible to the Legislature and
through the Legislature, it is accountable to the people, who are
consumers of justice. The power of appointment of Judges is not
entrusted to the Chief Justice of India or to the Chief Justice of a High
Court because they do not have any accountability to the people and
even if any wrong or improper appointment is made, they are not
liable to account to anyone for such appointment. The appointment of
a Judge of a High Court or the Supreme Court does not depend
merely upon the professional or functional suitability of the person
concerned in terms of experience or knowledge of law though this
requirement is certainly important and vital and ignoring it might
result in impairment of the efficiency of administration of justice, but
also on several other considerations such as honesty, integrity and
general pattern of behaviour which would ensure dispassionate and
objective adjudication with an open mind, free and fearless approach
to matters in issue, social acceptability of the person concerned to the
high Judicial office in terms of current norms and ethos of the society,
commitment to democracy and the rule of law, faith in the
constitutional objectives indicating his approach towards the Preamble
and the Directive Principles of State Policy, sympathy or absence
thereof with the constitutional goals and the needs of an activist
judicial system. These various considerations, apart from professional
and functional suitability, have to be taken into account while
=53=
appointing a Judge of a High Court or the Supreme Court and it is
presumably on this account that the power of appointment is
entrusted to the Executive.”
In the case of S.P. Gupta, S.M.F.Ali, J. observed in the following:
“Independence of judiciary is doubtless a basic structure of
the constitution, but the said concept of independence has
to be confined within the four corners of the Constitution
and cannot go beyond the Constitution. While this
absolute judicial power has been conceded by the
Constitution to the judiciary, a certain amount of executive
control has already been vested in the higher judiciary in
respect of the subordinate judiciary. This executive power
is not absolute and has to be exercised in consultation with
the CJI in the case of appointment of Supreme Court
Judges, as also in the consultation with the CJI and the
Governor of the States concerned in case of the
appointment of Chief Justice of the High Courts,–in the
case of appointment of High Court Judge, the Chief Justice
of the concerned High Court is also to be consulted. The
consultation contemplated by the Constitution must be full
and effective and by convention the view of the concerned
CJ and CJI should always prevail unless there are
exceptional circumstances which may impel the President
to disagree with the advice given by the constitutional
authorities. Thus, in fine, the doctrine of separation of
power so far as our Constitution is concerned, reveals an
artistic, blending and an adroit admixture of judicial and
executive functions.
In the American Constitution by virtue of the fact that the
entire judicial power is vested in the Supreme Court or
=54=
other courts, the appointments have to be made by the
Supreme Court, unlike the provisions of Indian
Constitution where appointments are to be made by the
President in consultation both with judicial and executive
authorities as indicated above. Therefore, in expounding
the concept of separation, the essential distinctive features
which differentiate Indian Constitution from the American
Constitution must be kept in mind.
So far as framers of Indian Constitution are concerned,
they had deliberately rejected the theory of complete
insulation of the judicial system from the executive control.
The Indian Constitution has devised a wholesome and
effective mechanism for the appointment of judges which
strikes a just balance between the judicial and executive
powers so that while the final appointment vests in the
highest authority of the executive, the power is subject to a
mandatory consultative process which by convention is
entitled to great weight by the President. Apart from these
safety valves, checks and balances at every stage, where
the power of the President is abused or misused or violate
any of the constitutional safeguards it is always subject to
judicial review. The power of judicial review, which has
been conceded by the Constitution to the judiciary, is the
safest possible safeguard not only to ensure independence
of judiciary but also to prevent it from the vagaries of the
executive.
The Indian Constitution fully safeguards the independence
of Judges as also of the judiciary by a three-fold method-
(1) by guaranteeing complete safety of tenure to
judges except removal in cases of incapacity or
misbehaviour which is not only a very complex
=55=
and complicated procedure but a difficult and
onerous one.
(2) by giving absolute independence to the Judges to
decide the cases according to their judicial
conscience without being influenced by any other
consideration and without any interference from
the executive.
(3) so far as the subordinate judiciary is concerned
the provisions of Arts. 233-236 vest full and
complete control over them in the High Court.
In the case of S.P. Gupta, Desai, J. also observed in the following:
(4)
“Independence of judiciary under the Constitution has to
be interpreted within the framework and the parameters of
the Constitution. There are various provisions in the
Constitution which indicate that the Constitution has not
provided something like a ‘hands off attitude’ to the
judiciary. The power of appointment of High Court Judges
and the Judges of the Supreme Court vests in the President
and the President being a constitutional head he is
constitutionally bound to act according to the advice of the
Council of Ministers. Arts. 32(3), 133(3), 138, 139, 140, 130,
230, 231, 237, 225, 126, 127(1), 128 confer power on other
constitutional institutions such as the executive which
when it acts within the limits of power will have a direct
impact on the functioning of the judiciary. This conspectus
of articles, not meant to be exhaustive, do indicate that
Parliament has power to regulate Court’s jurisdiction.
Undoubtedly judiciary, the third branch of the
Government cannot act in isolation. They are ensured total
freedom, of course, after entering the office, from any overt
=56=
or covert pressure or interference in the process of
adjudicating causes brought before them and to this end
they are ensured tenure, pay, pension, privileges and
certain basic conditions of service. The judiciary like any
other constitutional instrumentality has, however, to act
towards attainment of constitutional goals. The
independence of judiciary is not to be determined in all its
ramifications as some a priori concept but it has to be
determined within the framework of the Constitution.
True, that the thrust is to ensure that adjudications are
untrammeled by external pressures or controls and
independence of judiciary under the Constitution is
confined to the adjudicatory functions of the Courts and
tribunals and they are insulated from executive control in
that behalf. It is not unlikely that the total insulation may
breed ivory tower attitude. It is not as if judicial
independence is an absolute things like a brooding
omnipresence. One need not too much idolise the
independence of judiciary so as to become counter-
productive.
While undoubtedly political packing must be abhorred, in
putting the independence of judiciary on pedestal one
cannot lose sight of the fact that the judiciary must keep
pace with the changing mores of the day, its decision must
be informed by values enshrined in the Constitution, the
goals set forth in the fundamental law of the land, peoples’
yearning desire for a chance for the better and the
promised millennium. An activist role in furtherance of the
same is a sine qua non for the judiciary. If value packing
connotes appointment of persons otherwise well qualified
as required by the constitution but having the additional
=57=
qualification of awareness of the high priority task of
eradication of poverty removal of economic disparity,
destroying the curse of illiteracy, ignorance, exploitation,
feudal overlordship, coupled with conscious commitment
to administering socio-economic justice, establishment of a
just social order, an egalitarian society, then not only the
value packing is not to be frowned upon nor thwarted by
entrenched establishment prone people but it must be
advocated with crusader’s zeal. And judiciary cannot
stand aloof and apart from the mainstream of society. This
will ensure its broad accountability to injustice ridden
masses and therefore it is not unnatural that the status
quoists can enter their caveat to value packing, but which
does not commend. While appointing each individual the
constitutional philosophy of each individual ought to be a
vital consideration and if this is labelled as value packing,
it is neither unethical nor unconstitutional nor a weapon to
strike at independence of judiciary.”
In the Ten Judges’ Case this Division passed by the following
short order on 2ndMarch 2009:
“For reasons to be recorded later in details, we hereby pass
the following short order: -
1. In the matter of appointment of Judges under Articles 98
and 95 of the Constitution the Convention of consultation
having been recognized and acted upon has matured into
Constitutional Convention and is now a Constitutional
imperative.
2. Such consultation is inherent in our Constitutional
scheme and is ingrained in the principle of independence
=58=
of judiciary being essentially the basic structure of our
Constitution embedded in the principle of Rule of Law.
3. In the matter of selection of the Judges the opinion of the
Chief Justice should be dominant in the area of legal
acumen and suitability for the appointment and in the area
of antecedents the opinion of the executive should be
dominant. Together, the two should function to find out
the most suitable candidates available for appointment
through a transparent process of consultation.
4. Oath under Articles 98 and 95 of the Constitution are
separate and distinct and are required to be administered
and made before one enters upon an office and a Judge
will be deemed to have entered upon the office
immediately after he makes the Oath and not before, in
both cases............................................”
Recently an Article has been published in a foreign law journal
namely, ‘Mazellaws Digest’ titled “Judicial Independence vs.
Constitutional Supremacy-A study of Bangladesh's struggle to
maintain legal integrity.” Author’s view relevant to the present case is
given below:
“The basic structure doctrine is one which preserves the
principles of the Constitution that effectively devises the
ways in which the nation is expected to build itself.
However, at the end of the day, the basic structure doctrine
is one of abstractive value. While it should be recognised
that principle of the independence of the judiciary speaks
not only to one of the basic structures of the Constitution
of Bangladesh, but also to a principle enshrined in many
constitutions across the world, it ought to be noted that at
=59=
the end of the day the application of the principle is based
on abstraction and is a principle that was presumably in
the mind of the constituent assembly during the
construction of the constitution itself.
If a recommendation regarding the confirmation of a
Justice of the Supreme Court (High Court Division)
proposed by the Chief Justice of Bangladesh to the
President of the People’s Republic of Bangladesh is not
fully affirmed, there are several things to consider. To
address this matter, it is important to analyse the text of
the Constitution that delineates these powers to the office
of the President.
In Article 51 of the Constitution, the matter is effectively
defined. The President is not answerable to the Court in
the exercise of his duties. Among his duties, according to
Articles(s) 94, 95 and 98, is the duty to confirm the
appointment of judges to the High Court Division of the
Supreme Court. If we are to follow the letter of the law, the
prescription of Article 51 is clear in that the President is not
answerable to the Court in the exercise of this duty.
However, per Article 48, the President is expected to act in
accordance with the advice of the Prime Minister.
Additionally, this provision prescribes that this advice is
ultimately privileged communication that the Court has no
authority to investigate. As such, the President is allowed
to act in accordance with his conscience and wisdom to
choose to affirm only those they deem fit to execute the
duties for which they are appointed. Therefore, by
Constitutional authority, it is the prerogative of the
President to act as they deem fit in the execution of such
duties.
=60=
While it has been argued that in disregarding the
recommendation of the Chief Justice in appointment of
judges, there is the potential for threat to the independence
of the judiciary, it is also equally true that the Constitution
in its grand wisdom permits this specific effect. It is,
however, important to recognise two facts. First, the
preservation of judicial independence is a fundamental
and basic structure of the Constitution and deserves the
utmost reverence. However, the mode that this
preservation could take place is ultimately debatable.
Second, the letter of the Constitution, which by virtue of
Article 7 is supreme to all, is thus superior to any abstract
principle. Assuming that the constituent assembly was
aware of the principle of judicial independence when
articulating the functions of the office of the President and
the functionality of the Supreme Court, and the office of
the Chief Justice, the letter of the Constitutional text must
be assumed to be the intended will of the Constitution. In
effect, considering that no part of the Constitution is
deemed inferior to any other (a principle opined on by
H.M. Seervai in his seminal text on the Constitution of
India), it is important to realise that the basic structure
doctrine, or the abstraction of the principle of judicial
independence, cannot take precedence over the prescribed
text enshrined in the Constitution.
To this effect, it is presumed that the constituent assembly,
in its wisdom, was cognizant of this basic structure, but
still enshrined Article 48, which enshrines that the advice
of the Prime Minister on which the President relies in the
execution of his duties, including the appointment of
judges, is privileged communication, not to be investigated
=61=
by any court. Hence, this court, or any other, is unable to
challenge any such decision. Considering the text of
Article(s) 48 and 52(2), the privilege communication may
be investigated only if the parliament deems it to be
appropriate.
So, in the event that a recommendation of the appointment
of an individual to the Supreme Court (High Court
Division) is disregarded, the office of the Chief Justice has
no other recourse but to merely seek clarification from the
office of the President. In such a case, the office of the
President is not bound to respond in detail. Only if the
Parliament deems such an investigation to be fit, they may
choose to enquire this matter with the office of the
President.
In maintaining this course of action, three core benefits are
accrued. First, the letter of the Constitution is not
undermined by a possible interpretation of a principle that
is abstracted on to the Constitution itself. Second, the
integrity of the office of the President is preserved, while
paying heed to the need for judicial independence. Finally,
this returns the ultimate power of arbitration of the matter
on to the Parliament, in recognition of parliamentary
sovereignty– effectively returning the power of such
arbitration to the representation of the collective will of the
people of Bangladesh.
Ultimately, this is a compromise. This does still create
avenues for judicial independence to be impeded by the
whims of the office of the President and potentially, the
office of the Prime Minister, who ultimately may have
political motivations. However, the Constitution as it
stands, is superior to any will or vision any other body
=62=
may strive towards. Hence, any decision on the matter
must be in accordance with the existing provisions of the
Constitution. Perhaps a revision of the procedures
regarding such matters is well due; but at this juncture, the
letter of the Constitution must prevail.”
[Source: http://www.mazellaws.com/publication/blogs/judicial-
independence-vs-constitutional-supremacy-a-study-of-bangladeshs-
struggle-to-maintain-legal-integry]
In the case in hand, the claim of the appellant is that even though
the Hon’ble Chief Justice recommended the names of six judges
including the appellant for appointment as permanent judge only five
Judges were appointed by the President dropping the appellant due to
oblique purpose. As it has been discussed earlier that the president
shall act in consultation with the Prime Minister while discharging his
functions. In the instant case the President did not appoint the
appellant as the opinion of the executive was not found to be positive.
Now a question arises whether the said opinion is ordered to be
disclosed. According to proviso to Article 48 of the Constitution
anything about the advice rendered by the Prime Minister to the
President shall not be enquired into in any court. In fact, it is the
maker of constitution who gave such indefeasible protection to the
advice of the executive of state. Article 51 provides that the President
shall not be answerable in any court for anything done or omitted by
him in the exercise or purported exercise of the functions of his office.
=63=
The learned Counsels on behalf of the appellant referring the
Ten Judges’ case contends that in that case the Judges were appointed
as Additional Judges for two years and thereafter they had not been
appointed by the President as permanent Judges, the Appellate
Division finally directed to consider the cases of Ten Judges for
appointment in terms of guideline as formulated by the said Division.
In this regard, it is our considered opinion that the said ten Judges
were appointed as Additional Judges for two years in the regime of
one political government but at the expiry of two years another
government came to the power. So, their non-appointment as
permanent judges is undoubtedly motivated by the political reason.
But in the case in hand the appellant was appointed as Additional
Judge in a regime of a political government and subsequently he has
not been appointed as permanent judge in the regime of the same
government. Thus, there is no question of political motivation in case
of dropping the name of the appellant.
Now adverting to the qualification for appointment as a Judge of
the Supreme Court we will look into the constitutional provisions of
India, Pakistan vis-a-vis Bangladesh.
Article 217(2) of the Indian Constitution is extracted below:
“(2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in the
territory of India; or
=64=
(b) has for at least ten years been an advocate of a High
Court or of two or more such Courts in succession.”
Likewise, Article 193(2) of the Pakistan Constitution provides
that-
“2. A person shall not be appointed a Judge of a High
Court unless he is a citizen of Pakistan, is not less than
forty-five years of age, and-
a. he has for a period of, or for periods aggregating, not
less than ten years been an advocate of a High Court
(including a High Court which existed in Pakistan at any
time before the commencing day); or
b. he is, and has for a period of not less than ten years
been, a member of a civil service prescribed by law for the
purposes of this paragraph, and has, for a period of not
less than three years, served as or exercised the functions
of a District Judge in Pakistan: or
c. he has, for a period of not less than ten years, held a
judicial office in Pakistan.”
Keeping analogy with the legal system of the sub-continent
Article 95(2) of our Constitution enumerates the qualifications of a
person to be appointed as a Judge of the Supreme Court. Article 95(2)
provides that-
“95. (2) A person shall not be qualified for appointment as
a Judge unless he is a citizen of Bangladesh and
(a) has, for not less than ten years, been an advocate of the
Supreme Court; or
(b) has, for not less than ten years, held Judicial office in
the territory of Bangladesh; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.
=65=
Thus, according to Article 95 of our Constitution the
qualification of an advocate for being appointed as a Judge of the
Supreme Court is that he should be citizen of Bangladesh and has been
an advocate of the Supreme Court of Bangladesh for at least ten 10
years.
In Al-Jehad Trust case reported in PLD 1996 SC 324, Para-7 the
Supreme Court of Pakistan held that-
“That the requirement of 10 years practice under
Article193(2)(a) of the Constitution relates to the
experience/ practice at the Bar and not simpliciter the
period of enrolment".
Now, let us examine whether the appellant being an advocate
has fulfilled the requirement of law as enumerated in Article 95(2) of
the Constitution. It appears that in the instant Civil Appeal, the writ
petitioner has stated that he was enrolled in the High Court Division
of the Supreme Court of Bangladesh on 18.06.2000. It is apparent from
Annexure-‘A-2’ of Writ Petition that the writ petitioner has obtained
Bachelor of Laws with Honors from the University of Wolverhampton
on 25.06.2004 and from Annexure-‘A-l’ of Writ Petition, it appears that
the writ petitioner has obtained Postgraduate Diploma from the City
University, London on 09.09.2005. Again, on plain reading of
Annexure-‘A’, it appears that the petitioner was called to the Bar of
England and Wales on 13.10.2005. Therefore, on examination of the
Annexures-‘A, ‘A-1’ and‘A-2’ it appears that after being enrolled in the
=66=
High Court Division of the Supreme Court of Bangladesh on
18.06.2000, the writ petitioner stayed in the United Kingdom (UK)
until 13.10.2005 on which date the writ petitioner was called to the Bar
of England and Wales. Thus, it is evident that after the date of
enrolment as an advocate in the High Court Division on 18.06.2000 the
writ petitioner stayed in UK for a period of minimum 5(five) years
upto13.10.2005. Therefore, the writ petitioner was appointed as an
Additional Judge of the Supreme Court of Bangladesh on 13.06.2012
having only 7(Seven) years of practice in the High Court Division
which falls short of the necessary requirement for being appointed as a
Judge. Apart from this, the writ petitioner did not mention anywhere
in the writ petition when he returned back in Bangladesh and started
practice as an advocate in the Supreme Court of Bangladesh.
Therefore, it is crystal clear that at the time of his appointment as an
Additional Judge of the High Court Division on 13.06.2012 the writ
petitioner did not have the requisite qualification as per Article
95(2)(a) of the Constitution. In the prevailing situation, the executive
was quite in right standing not recommending the appellant for
appointment as a permanent Judge.
In the present case Chief Justice of Bangladesh recommended the
names of 6 persons out of those, 5 persons have been made confirmed
under Article 95 of the Constitution. So it cannot be said that the
Executive has ignored the recommendation of the Chief Justice of
=67=
Bangladesh violating the observation given in the Ten Judges Case. In
the present case the opinion of the Chief Justice of course has been
given due importance in case of 5 persons (Judges).
In the case in hand it appears that the basic qualification of
having 10 years practice to be appointed as a Judge of the High Court
Division was found absent in case of the appellant A.B.M. Altaf
Hossain. So the Chief Justice of Bangladesh recommended Mr. A.B.M.
Alataf Hossain without being aware regarding this fact. The appellant
was appointed as Additional Judge of the Supreme Court by the
President of the Republic under the provision of Article 98 of the
Constitution. The President need not consult with the Chief Justice in
exercising his power under Article 98 of the Constitution thought after
the Ten Judges Case it has become a practice to consult the Chief
Justice prior appointment of any person as Additional Judge under
Article 98 of the Constitution. Thus, it might have been presumed by
the Chief Justice that Altaf Hossain the appellant had the requisite
qualification of 10 years practice at the time of his appointment under
Article 98 of the Constitution. The persons concerned in the
government, who are in the helm of the affairs in the process of
appointment of Judges of the Supreme Court, should have brought
this matter to the notice of the Chief Justice before consultation by the
President with him as per provision of Article 95 of the Constitution.
However, it cannot be said that primacy of the opinion of the Chief
Justice has been totally ignored in the appointment of 5 out of 6
=68=
persons under Article 95 of the Constitution. We have already
discussed that 5 persons out of 6 were given appointment under
Article 95 of the Constitution as their names were recommended by
the Chief Justice, and only one person has been dropped by the
President after consulting with the Chief Justice and being advised by
the Prime Minister. We find no illegality in it.
In this regard we may get strength from the decision given in the
case of Shanti Bhushan and ors. vs. Union of India and ors., reported in
(2009) 1 SCC 657 it has been held that-
“Person, who is not found suitable for being appointed on
some post, should not be given extension.”
In the case of Hassan M.S. Azim vs. Bangladesh, reported in 21
BLC(AD) 201, this Division concurred with the observation of the High
Court Division that the ‘President is obliged to act in accordance with
the advice of the Prime Minister’. The judgment of this case was
pronounced by the High Court Division on 26.10.2010 and the
Appellate Division judgment was pronounced on the 5th November,
2015. After pronouncement of the judgment in the Ten Judges’ Case as
well as after 15th amendment of the Constitution came in existence.
38. We have seen the record of the case in a chamber of one of our
brothers. It is clear that the President has appointed 5 Additional
Judges as permanent Judge under Article 95 of the Constitution out of
6 Additional Judges at the advice of the Prime Minister.
=69=
The observation made by Mr. Justice Md. Abdul Matin in the
case of Bangladesh and others vs. Md. Idrisur Rahman, Advocate and others,
reported in 29 BLD(AD)79 that as follows:
“157. It is true that “consultation” was considered in the
light of Article 116 of the Constitution but nevertheless the
same principle all the more applies in the matter of
appointment of judges of the Supreme Court under
Articles 98 and 95 of the Constitution because without the
independence of the Supreme Court there cannot be any
independence of the subordinate courts and minus the
consultation and primacy the separation of judiciary from
the executive will be empty words.
158..................................................................................................
159. This word “independent” also occurs in Article 116A
of the Constitution which runs as under:
“116A. Subject to the provisions of the Constitution,
all persons employed in the judicial service and all
magistrates shall be independent in the exercise of
their judicial functions.”
160. The expression “shall be independent” came up for
consideration in the aforementioned case of Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain and this
Court considered both Article 94(4) as well as 116A of the
Constitution quoted above and held as under:
“The independence of the judiciary, as affirmed and
declared by Articles 94(4) and 116A, is one of the
basic pillars of the Constitution and cannot be
demolished, whittled down, curtailed or diminished
in any manner whatsoever, except under the existing
provisions of the Constitution. It is true that this
independence, as emphasized by the learned
Attorney General, is subject to the provisions of the
=70=
Constitution, but we find no provision in the
Constitution which curtails, diminishes or otherwise
abridges this independence. Article 115, Article 133
or Article 136 does not give either the Parliament or
the President the authority to curtail or diminish the
independence of the subordinate judiciary by
recourse to subordinate legislation or rules. What
cannot be done directly, cannot be done indirectly.”
161. Therefore the expression “independence of judiciary”
is also no longer res-integra rather has been authoritatively
interpreted by this Court when it held that it is a basic
pillar of the Constitution and cannot be demolished or
curtailed or diminished in any manner accept by and
under the provision of the Constitution. We find no
existing provision of the Constitution either in Articles 98
or 95 of the Constitution or any other provision which
prohibits consultation with the Chief justice. Therefore
consultation with the Chief Justice and primacy is in no
way in conflict with Article 48(3) of the Constitution. The
Prime Minister in view of Article 48(3) and 55(2) cannot
advice contrary to the basic feature of the constitution so as
to destroy or demolish the independence of judiciary.
Therefore the advice of the Prime Minister is subject to the
other provision of the Constitution that is Articles 95, 98,
116 of the Constitution.
162-165..........................................................................................
166. Therefore it follows that consultation with the Chief
Justice with primacy is an essential part of independence
of judiciary which is ingrained in the very concept of
independence embedded in the principle of rule of law
and separation of judiciary from the executive and is not in
conflict with Article 48(3) of the Constitution.
=71=
167. The judiciary is a cornerstone of our Constitution,
playing a vital role in upholding the rule of law.
Government must be conducted in accordance with the
law and, for there to be confidence that this happens in
practice, the law must be administered by a judiciary that
is independent of Government. The process by which
Judges are appointed is therefore key to both the reality
and the perception of independence. The whole scheme is
to shut the doors of interference against executive under
lock and key and therefore prudence demands that such
key should not be left in possession of the executive.
The observation made by his Lordship Mr. Justice Md. Abdul
Matin has been reflected in the judgment of Raghib Rauf Chowdhury vs.
Government of Bangladesh and others, reported in 69 DLR(HCD) 317,
Paragraph-46.
The President of the Republic is elected under the provision of
Article 48(1) of the Constitution by the Members of Parliament in
accordance with law. As per Article 48(2) of the Constitution the
President exercise the powers and perform the duties as per the
Constitution. Article 48(2) of the Constitution runs as follows:
“The President shall, as Head of State, take precedence over all
other persons in the State, and shall exercise the powers and
perform the duties conferred and imposed on him by this
Constitution and by any other law.”
=72=
The President exercises his powers at the advice of the Prime
Minister which has been mentioned in Article 48(3) of the
Constitution. Article 48(3) of the Constitution runs as follows:
“In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
Article 95, the President shall act in accordance with the
advice of the Prime Minister.”
In the proviso of Article 48(3) it has been mentioned that
“provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
Similar provision has been made for the President of India in
Article 74 of the Indian Constitution and there is a little bit difference
between the provision of Article 48(3) of the Constitution of People’s
Republic of Bangladesh and Article 74 of the Constitution of India. The
provision of Article 74 of the Constitution of India runs as follows:
“Council of Ministers to aid and advise President-(1)
There shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who
shall, in the exercise of his functions, act in accordance
with such advice.
Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or
=73=
otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be
inquired into in any court.”
In the Constitution of the Islamic Republic of Pakistan similar
provision is available. The contents of Article 48(1) and (4) of the
Constitution of the Islamic Republic of Pakistan runs as follows:
“48(1) In the exercise of his functions, the President shall
act in accordance with the advice of the Cabinet or the
Prime Minster.
Provided that the President may require the Cabinet or, as
the case may be, the Prime Minister to reconsider such
advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such
reconsideration.
(2)....................................................................................................
.......
(3) Omitted.
(4) The question whether any, and if so what, advice was
tendered to the President by the Cabinet, the Prime
Minister, a Minister or Minister of State shall not be
inquired into in, or by, any court, tribunal or other
authority.”
In all democratic countries where parliamentary democracy is in
existence President of the country enjoys some immunity. By the
Articles 51(1) and (2) the President of the People’s Republic of
=74=
Bangladesh has been given immunity. The contents of Article 51(1)
and (2) of the Constitution runs as follows:
“51.(1) Without prejudice to the provisions of article 52, the
President shall not be answerable in any court for anything
done or omitted by him in the exercise or purported
exercise of the functions of his office, but this clause shall
not prejudice the right of any person to take proceedings
against the Government.
(2) During his term of office no criminal proceedings
whatsoever shall be instituted or continued against the
President in, and no process for his arrest or imprisonment
shall issue from, any court.”
If we read together the provision of Article 48 and the provision
of Article 51 of the Constitution, we find a clear picture regarding the
powers and prerogatives of the President of the Republic. The
President shall exercise his functions at the advice of the Prime
Minister and the advice whatsoever given or not cannot be questioned
as well as the action taken by the President is also immuned from
being answerable to any Court. Thus, the writ petition of the appellant
is not maintainable. Because in the writ petition the petitioner has
challenged the action of the President. The appellant-writ-petitioner
filed the writ petition challenging his “non appointment under Article
95 of the Constitution” which is totally barred under the provision of
Article 51 of the Constitution.
=75=
For a smooth functioning and to establish a transparent
judiciary, one of the organ of the State, the Executive shall come
forward to assist the Chief Justice with all sorts of support including
the materials, if any, in their hands against any person, who is under
consideration to be appointed as Judge of the Supreme Court under
Article 95 of the Constitution. At the time of appointment of the
Additional Judges under the provision of Article 98 of the Constitution
the Chief Justice is not required to be consulted as per Constitution,
but practice has been developed to consult with the Chief Justice. The
President alone can appoint the Judges of the Supreme Court in
accordance with the Constitutional provisions. He is to consult with
the Chief Justice and to take advice from the Prime Minister. The
persons working with the executive, who are at the helm of affairs of
the appointment of the Judges of the Supreme Court and provide
assistance to the President in selecting the Judges, they are responsible
to take all necessary information including antecedent of the person
who are supposed to be appointed to the Supreme Court as per
provision of Article 98 of the Constitution. When the question comes
to appointment of the Judges under the provision of Article 95 of the
Constitution the practice in our country is that the Chief Justice
recommends the names of the Additional Judges already appointed
and discharging their functions as puisne Judges in the High Court
Division. Since at the time of initial appointment under the provision
of Article 98 of the Constitution the antecedents of the aforesaid
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persons presumably have been checked by the executive, usually the
Chief Justice does not go to enquire the antecedent of any Judge afresh
and of course it is not his function at all. The Chief Justice will see the
legal accumen only of the incumbent Additional Judge and make his
recommendation on that basis. Common practice is that, after expiry
of two years or some more periods the Chief Justice recommends the
names of the Additional Judges to the President, considering their
performance in the Court, for appointment, under Article 95 of the
Constitution.
The intention of the legislature has been expressed in Article
95(2) regarding qualification and disqualification of the person, who
are eligible for appointment as a Judge of the Supreme Court. In
Article 95(2) of the Constitution runs as follows:
“95(2) A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and-
(a) has, for not less than ten years, been an advocate of the
Supreme Court; or
(b) has, for not less than ten years, held judicial office in the
territory of Bangladesh; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.”
In the case in hand Article 95(2)(a) of the Constitution is more
relevant. It has been mentioned that if any person is not an Advocate
of the Supreme Court for 10 years he will be disqualified to become a
Judge of the Supreme Court. In our view, this 10 years advocacy
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means continuous 10 years legal practice in the Supreme Court or
aggregating of 10 years legal practice in the Supreme Court. Since it
appears from a simple arithmetic calculation that the appellant did not
have 10 years continuous practice in the Supreme Court, which we
have discussed earlier, he was not qualified to become a Judge under
Article 98 of the Constitution.
The President is the only authority to appoint the Judges of the
Supreme Court either under Article 98 or 95 of the Constitution in
accordance with the constitutional provision. There is no other
authority in the country to appoint Judges of the Supreme Court. In
the case in hand as per Article 95 of the Constitution President
consulted with the Chief Justice and the recommendation of the Chief
Justice has been implemented in major portion except the
recommendation for the appellant, thus it can be said that the
President did not commit any illegality by not giving appointment to
the appellant in the post of permanent Judge of the High Court
Division of the Supreme Court of Bangladesh under Article 95 of the
Constitution of the People’s Republic of Bangladesh.
It has been observed in the Ten Judges’ Case that the advice of
the Prime Minister is subject to the other provision of the Constitution
that is Article 95, 98 and 116 of the Constitution. The contents of
Article 116 of the Constitution runs as follows:
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“The control (including the power of posting, promotion
and grant of leave) and discipline of persons employed in
the judicial service and magistrates exercising judicial
functions shall vest in the President and shall be exercised
by him in consultation with the Supreme Court.”
Supreme Court does not mean the Chief Justice alone. Supreme
Court means-the Supreme Court of Bangladesh under Articles 152 and
94 of the Constitution. But in Article 95 the words ‘Supreme Court’ is
absent, the President is only obliged to consult with the Chief Justice
not the Supreme Court.
From the above discussions, we would like to observe as under:
(a) The Chief Justice of Bangladesh in exercise of his
functions as consultee shall take aid from the other
senior Judges of the Supreme Court at least with two
senior most Judges of the Supreme Court before
giving his opinion or recommendation in the form of
consultation to the President.
(b) In the light of the observations made in S.P. Gupta,
Ten Judges’ cases, and the article mentioned in
paragraph-17, it is evident that in case of
appointment of a Judge of the Supreme Court under
Articles 95 and 98 of the Constitution the opinion of
the Chief Justice regarding legal acumen and
professional suitability of a person is to be
considered while the opinion of the Prime Minister
regarding the antecedents of a person is also to be
considered. If divergent opinions from either side of
the two functionaries of the state occur the President
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is not empowered to appoint that person as Judge.
The opinion of any functionary will not get primacy
over the others.
(c). If any bad antecedent or disqualification is found
against any Additional Judge, who is under
consideration of the Chief Justice to be recommended
for appointment under the provision of Article 95 of
the Constitution, it is obligatory for the executive to
bring the matter to the notice of the Chief Justice
prior to the consultation process starts.
(d). After recommendation is made by the Chief Justice
to the President, even if, at that stage it is revealed
that antecedent of any recommended candidate is
not conducive to appoint him as a Judge under
Article 95 of the Constitution, it shall be obligatory
for the executive to send the file of that Additional
Judge or the person, back to the Chief Justice for his
knowledge, so that the Chief Justice can review his
earlier recommendation regarding the such
candidate.
(e). If the Chief Justice again (2nd time) recommends the
same Judge/person for appointment under Article
95, whose antecedent has been placed before him for
reconsideration, this Court expects that, the
President of the Republic would show due respect to
the latest opinion of the Chief Justice.
(emphasis added)
In the Ten Judges’ Case it has been observed that-
“11. As to the legitimate expectation of the Additional
Judges it is held that they only have the right to be
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considered for appointment under Article 95(1) of the
Constitution.”
We have discussed earlier that their Lordships in the said case in
the form of direction asked the authority to consider the cases of the
Ten Judges as per guideline they formulated. But it is clear that this
Division did not give any direction to the government to appoint them
as Judges of the Supreme Court. Fortunately, after the judgment of the
Ten Judges’ Case the Judges, who were dropped earlier were given
appointment in a regime of political government favourable to them
otherwise they would not have been given permanent appointment.
With the above observations, the Civil Appeal No. 232 of 2014
and Civil Petition for Leave to Appeal No. 602 of 2017 are disposed of.
No order in respect of Civil Petition for Leave to Appeal No.
2680 of 2014 as it has been abated at the death of the sole petitioner.
J.
Borhanuddin,J: I have had the privilege of going through the
judgment and order proposed to be delivered by my learned brothers
Obaidul Hassan, J., M. Enayetur Rahim, J., Md. Ashfaqul Islam, J., Md.
Abu Zafor Siddique, J. and Jahangir Hossain, J.
Concurring with the ultimate decision of the appeal, I would like
to express my brief opinion on the point ‘whether dropping the name
of the appellant ignoring the opinion/recommendation of the Chief
Justice of Bangladesh for confirmation and appointment under Article
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95 of the Constitution is without lawful authority and violative of the
Constitution.’
Facts in a nutshell are that considering qualification and
antecedents, the Hon’ble President of Bangladesh appointed the
appellant as Additional Judge of the Supreme Court of Bangladesh,
High Court Division alongwith 5 other Additional Judges under
Article 98 of the Constitution of Bangladesh vide Notification dated
13.06.2012. The Chief Justice administered them oath of office on
14.06.2012. Before expiry of 2(two) years tenure of the said Additional
Judges, the Chief Justice being satisfied with their performance and
integrity recommended all of them for appointment as permanent
Judge of the High Court Division under Article 95 of the Constitution.
Though 5(five) of them were duly appointed as permanent Judge by
the President vide Gazette notification dated 09.06.2014 but the name
of the appellant was dropped from the list ignoring recommendation
of the Chief Justice. As such, the appellant as petitioner invoked the
writ jurisdiction under Article 102 of the Constitution on the plea that
dropping the name of the appellant for appointment under Article 95
of the Constitution ignoring recommendation of the Chief Justice
affected very independence of the judiciary.
Upon hearing learned Advocate for the writ-petitioner, a
Division Bench of the High Court Division rejected the writ petition
summarily vide order dated 24.09.2014.
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Being aggrieved and dissatisfied with the order passed by the
High Court Division, the writ-petitioner preferred Civil Petition for
Leave to Appeal No.2626 of 2014 invoking Article 103 of the
Constitution. After hearing the parties, this Division granted leave
vide order dated 06.11.2014.
Consequently, instant civil appeal arose.
For proper appraisal, it is necessary to discuss the relevant
Constitutional provisions relating to the appointment of Judges under
Article 98 and 95 of the Constitution which are as under:
“98.Additional Supreme Court Judges:
Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any
temporary period :
Provided that nothing in this article shall prevent a
person appointed as an Additional Judge from being
appointed as a Judge under Article 95 or as an
Additional Judge for a further period under this
Article.”
(emphasis supplied)
-AND-
“95(1). Appointment of Judges: The Chief Justice shall
be appointed by the President, and the other Judges shall
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be appointed by the President after consultation with the
Chief Justice.”
(emphasis supplied)
It is pertinent to mention here that in the unamended Article
95(1) of the Constitution provision of consultation with the Chief
Justice of Bangladesh by the President was there but lateron said
provision was omitted through Constitutional 4th Amendment Act.
Thereafter, by the Constitutional 15th Amendment Act the original
provision of Article 95(1) was again restored. Thus, now the provision
of consultation with the Chief Justice of Bangladesh by the President
in appointing Judge under Article 95(1) is a Constitutional
requirement. It is not disputed that the then Chief Justice of
Bangladesh has recommended name of the appellant for appointment
under Article 95(1) of the Constitution.
Appellant’s contention is that dropping of his name ignoring
recommendation of the Chief Justice for appointment under Article
95(1) of the Constitution affects the independence of judiciary.
The concept of independence of judiciary is that the Judiciary
should be free from other branches of the Government. It should have
freedom from fear and favour of the other two organs. The concept
has its origin in the doctrine of separation of power. Defining the
Independence of Judiciary by emphasizing only the creation of
Judiciary as an autonomous institution separate from other branches is
not sufficient unless the core idea of judicial independence is
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exhibited, which is the independent power of the judges to decide a
case before them according to the rule of law uninfluenced by any
other factors. Independence of the Judiciary is important for the sole
reason of safeguarding the rights and privileges of the people and
thereby providing equity and justice to all. The Rule of Law, which
explains the supremacy of the Constitution, can only be achieved
when there is an independent and impartial judiciary at the top level
to ensure proper interpretation and implementation of the Rule of
Law. For this reason, it is so important to maintain the Independence
of Judiciary and thus protect the democracy and as such the concept of
Independence of Judiciary is a basic structure of our Constitution.
In the case of Anwar Hossain Chowdhury Vs. Government of
People’s Republic of Bangladesh, reported in 41 DLR (AD)(1989) 165, this
Division observed:
“This point may now be considered. Independence of
Judiciary is not an abstract concept. Bhagwati, J.: said ‘if
there is one principle which runs through the entire fabric
of the Constitution, it is the principle of the Rule of Law
and under the Constitution, it is the judiciary which is
entrusted with the task of keeping every organ of the state
within the limit of the law and thereby making the Rule of
Law a meaningful and effective.’ He said that the Judges
must uphold the core principle of the Rule of Law which
says, ‘Be you ever so high, the law is above you.’ this is the
principle of Independence of Judiciary which is vital for
the establishment of real participatory democracy,
maintenance of the Rule of Law as a dynamic concept and
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delivery of Social Justice to the vulnerable sections of the
community. It is this principle of Independence of
Judiciary which must be kept in mind while interpreting
the relevant provisions of the Constitution. (S.P. Gupta
and others vs. President of India and others AIR 1982 SC
at page-152).”
Again, in the case of Secretary, Ministry of Finance vs. Mr. Md.
Masdar Hossain and others, reported in 20 BLD (AD)(2000) 104, this
Division held:
“The independence of the judiciary, as affirmed and
declared by Articles 94(4) and 116 A, is one of the basic
pillars of the Constitution and cannot be demolished,
whittled down, curtailed or diminished in any manner
whatsoever, except under the existing provisions of the
Constitution. It is true that this independence, as
emphasized by the learned Attorney General, is subject to
the provisions of the constitution, but we find no
provisions of the constitution which curtails, diminishes
or otherwise abridges this independence. Article 115,
Article 113 or Article 136 does not give either the
Parliament or the President the authority to curtail or
diminish the independence of the subordinate judiciary by
recourse to subordinate legislation or rules. What cannot
be done directly cannot be done indirectly.”
Further, in the case of Supreme Court Advocate-on-Record
Association and another Vs. Union of India (popularly known as Fourth
Judges Case), reported in (2016) 5 SCC 01, the Supreme Court of India
also expressed its view in the following manner:
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“The Rule of Law is recognized as a basic feature of our
Constitution. It is in this context that the aphorism, ‘Be
you ever so high, the law is above you’, is acknowledged
and implemented by the Judiciary. If the Rule of Law is a
basic feature of our Constitution, so must be the
independence of the judiciary since the ‘enforcement’ of the
Rule of Law requires an independent judiciary as its
integral and critical component.”
From the above referred cases, it is crystal clear that the
Independence of Judiciary is a ‘Basic Structure’ of our Constitution
which cannot be demolished, whittled down, curtailed or diminished
in any manner whatsoever, except under the existing provisions of the
Constitution.
In the context of the case in hand, it requires to discuss what is
the effect of recommendation of the Chief Justice in appointing Judges
under Article 95(1) of the Constitution.
In the case of Supreme Court Advocates-on-Record Association and
another vs. Union of India (popularly known as Second Judges Case),
reported in AIR 1994 SC 268, the Supreme Court of India observed:
“In practice, whenever the Council of Ministers both at
central and state level, as the case may be, plays a major
role in its self-acclaimed absolute supremacy in selecting
and appointing the Judges, paying no attention to the
opinion of the CJI, they may desire to appoint only those
who share their policy performances or show affiliation to
their political philosophy or exhibit affinity to their
ideologies. This motivated selection of men and women to
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the judiciary certainly undermines public confidence in
the Rule of Law and resultantly the concept of Separation
of Judiciary from the Executive as adumbrated
under Article 50 and the cherished concept of
Independence of Judiciary untouched by the Executive will
only be forbidden fruits or a myth rather than a reality. In
this situation, the consultation with the CJI will be an
informal one for the purpose of satisfying the
constitutional requirements. As it has been pointed out in
the Gupta’s case (AIR 1982 SC 149) that the judiciary
may be the weakest among the constitutional
functionaries, for the simple reason that it is not possessed
of the long sword (that is the power of enforceability of its
decisions)or the long purse (that is the financial
resources), but if the opinion of executive is to prevail
over, the opinion of CJI in matters, concerning judiciary
on account of that reason, then the independent judiciary
which is a power of strength for all – particularly for the
poor, the downtrodden and the average person confronting
the wrath of the Government will be a misnomer.”
It is significant to mention here that while recommending a
candidate for the higher judiciary, the Chief Justice requires to
evaluate the calibre and legal ability of the candidate. Regarding
professional attainments, legal soundness, ability, skill etc of the
candidate be evaluated only by the Chief Justice in the matter of
appointment under Article 95 of the Constitution. However, since the
judiciary does not have such mechanism to evaluate the antecedent
and background of a candidate, the Chief Justice may not express
his/her opinion about the conduct, character and antecedent of the
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candidate. But the Executive with its sufficient machineries can check
the antecedent and background of the candidate and form its opinion
on that aspect. If the opinion of the Executive placed before the Chief
Justice with all particulars including the conduct, character and
antecedent of such candidate, the Chief Justice can evaluate the fitness
of the candidate in all aspects. Therefore, in all circumstances, the
opinion of the Chief Justice has the right of primacy in appointing the
Judges under the provisions of Constitution.
If the opinion of the Executive prevails over the opinion of Chief
Justice in matters concerning appointment of Judges, then the
Independence of Judiciary which is a basic structure of the
Constitution as well as the power of strength for all-particularly for
the poor, the downtrodden and the average person confronting the
wrath of the Government will be a misnomer.
In the case of Supreme Court Advocate-on-Record Association and
another vs. Union of India (popularly known as Second Judges Case),
reported in AIR 1994 SC, 268 the Supreme Court of India held that:
“Then the question which comes-up for consideration is,
can there be an Independent Judiciary when the power of
appointment of Judges vests in the Executive? To say yes,
would be illogical. The Independence of Judiciary is
inextricable linked and connected with the constitutional
process of appointment of Judges of the higher Judiciary.
‘Independence of Judiciary’ is the basic feature of our
Constitution and if it means what we have discussed
above, then the framers of the Constitution could have
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never intended to give this power to the Executive. Even
otherwise the Governments - Central or the State - are
parties before the Courts in large number of cases. The
Union Executive have vital interests in various important
matters which come for adjudication before the Apex-
Court. The Executive - in one from the other - is the
largest single-litigant before the Courts. In this view of the
matter the Judiciary being the mediator - between the
people and the Executive - the framers of the Constitution
could not have left the final authority to appoint the
Judges of the Supreme Court and of the High Courts in the
hands of the Executive. This Court in S.P. Gupta’s case
(AIR 1982 SC 149) proceeded on the assumption that the
Independence of Judiciary is the basic feature of the
Constitution but failed to appreciate that the
interpretation, it gave, was not in conformity with the
broader facets of the two concepts - ‘Independence of
Judiciary’ and ‘Judicial Review’ - which are inter-linked.”
Finally, the point mentioned above considered in the case of
Supreme Court Advocates-on-Record Association vs. Union of India
(popularly known as Second Judges Case), reported in AIR 1994 SC 268
before a Bench of nine Judges in which by majority of seven to two, the
Supreme Court of India held:
"When an argument was advanced in Gupta’s case (AIR
1982 SC 149) to the effect that where there is difference of
opinion amongst the Constitutional functionaries required
to be consulted, the opinion of the CJI should have
primacy, since he is the head of the Indian Judiciary and
paterfamilias of the judicial fraternity, Bhagwati, J.
rejected that contention posing a query, as to the principle
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on which primacy can be given to the opinion of one
constitutional functionary, when Clause-(1) of Article
217 places all the three constitutional functionaries on the
same pedestal so far as the process of consultation is
concerned. The learned Judge by way of an answer to the
above query has placed the opinion of the CJI on par with
the opinion of the other constitutional functionaries. The
above answer, in our view, ignores or overlooks the very
fact that the judicial service is not the service in the sense
of employment, and is distinct from other services and that
“the members of the other services... cannot be placed on
par with the members of the judiciary, either
constitutionally or functionally”. (See All India Judges’
Association and others case (1993(4) JT (SC) 618) (supra).
There are innumerable impelling factors which motivate,
mobilize and import momentum to the concept that the
opinion of the CJI given in the process of ‘consultation’ is
entitled to have primacy, they are:
(1) The ‘Consultation’ with the CJI by the President
is relatable to the judiciary and not to any other
service.
(2) In the process of various Constitutional
appointments ‘consultation’ is required only to the
judicial office in contrast to the other high ranking
constitutional offices. The prior ‘consultation’
envisaged in the first proviso to Article
124(2) and 217(1) in respect of judicial offices is a
reservation or limitation on the power of the
President to appoint the Judges to the superior
courts.
(3) The ‘consultation’ by the President is a sine-
qua-non or a condition precedent to the exercise of
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the constitutional power by the President to appoint
Judges and this power is inextricably mixed up in
the entire process of appointment of Judges as an
integrated process. The ‘consultation’ during the
process in which an advice is sought by the
President cannot be easily brushed aside as an
empty formality or a futile exercise or a mere casual
one attached with no sanctity.
---------------------------------------------------------------
---------------(5) Article 124 and 217 do not speak in
specific terms requiring the President to consult the
executive as such, but the executive comes into play
in the process of appointment of Judges to the higher
echelon of judicial service by the operation of
Articles 74 and 163 of the constitution. In other
words, in the case of appointment of Judges, the
President is not obliged to consult the executive as
there is no specific provision for such consultation.
(6)The President is constitutionally obliged to
consult the CJI alone in the case of appointment of a
Judge to the Supreme Court as per the mandatory
proviso to Article 124(2) and in the case of
appointment of a Judge to the High Court, the
President is obliged to consult the CJI and the
Governor of the State and in addition the Chief
Justice of the High Court concerned, in case the
appointment relates to a Judge other than the Chief
Justice of that High Court. Therefore, to place the
opinion of the CJI on par with the other
constitutional functionaries is not in consonance
with the spirit of the Constitution, but against the
very nature of the subject matter concerning the
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judiciary and in opposition to the context in which
‘consultation’ is required. After having observed
that the ‘consultation’ must be full and effective by
Bhagwati, J. in Gupta’s case there is no conceivable
reason to hold that such ‘consultation’ need not be
given primacy consideration.----------------------------
---------------------------------------------------------”
In the same case the Supreme Court of India further observed:
“The majority view in S.P. Gupta (AIR 1982 SC 149) to
the effect that the executive should have primacy, since it
is accountable to the people while the judiciary has no such
accountability, is an easily exploded myth, a bubble which
vanishes on a mere touch. Accountability of the executive
to the people in the matter of appointments of superior
Judges has been assumed, and it does not have any real
basis. There is no occasion to discuss the merits of any
individual appointment in the legislature on account of the
restriction imposed by Articles 121 and 211 of the
Constitution. Experience has shown that it also does not
form a part of the manifesto of any political party, and is
not a matter which is, or can be, debated during the
election campaign. There is thus no manner in which the
assumed accountability of the executive in the matter of
appointment of an individual judge can be raised, or has
been raised at any time. On the other hand, in actual
practice, the Chief Justice of India and the Chief Justice of
the High Court, being responsible for the functioning of
the courts, have to face the consequence of any unsuitable
appointment which gives rise to criticism levelled by the
ever vigilant Bar. That controversy is raised primarily in
the courts. Similarly, the Judges of the Supreme Court and
the High Courts, whose participation is involved with the
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Chief Justice in the functioning of the courts, and whose
opinion is taken into account in the selection process, bear
the consequences and become accountable. Thus, in actual
practice, the real accountability in the matter of
appointments of superior Judges is of the Chief Justice of
India and the Chief Justices of the High Courts, and not of
the executive which has always held out, as it did even at
the hearing before us that, except for rare instances, the
executive is guided in the matter of appointments by the
opinion of the Chief Justice of India.”
The aforementioned discussions leads to an inescapable
conclusion that all the factors mentioned above come together to
support the view that the Executive will not be justified in enjoying the
supremacy over the opinion of the Chief Justice in the matter of
appointing Judges to the superior judiciary. Therefore, to place the
opinion of the Chief Justice at per with the other constitutional
functionary is not in consonance with the spirit of the Constitution.
It is very important to discuss the matter at this stage that the
opinion/recommendation rendered by the Chief Justice in appointing
Judges in the higher judiciary under Article 95(1) of the Constitution
must be effective, meaningful, purposive, consensus oriented and
leaving no room for complaint of arbitrariness or unfair play.
The Supreme Court of Pakistan in the case of Al- Jehad Trust vs.
Federation of Pakistan, reported in PLD 1996 Supreme Court 324, held:
“The words ‘after consultation’ employed inter alia in
Articles 177 and 193 of the Constitution connote that the
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consultation should be effective, meaningful, purposive,
consensus oriented, leaving no room for complaint of
arbitrariness or unfair play. The opinion of the Chief
Justice of Pakistan and the Chief Justice of a High Court as
to the fitness and suitability of a candidate for judgeship is
entitled to be accepted in the absence of very sound reasons
to be recorded by the President/Executive.”
The Supreme Court of India in the case of Special Reference No.1
of 1998, reported in AIR 1999 Supreme Court 1, observed in the
following manner:
“The expression ‘consultation with the Chief justice of
India’ in Articles 217(1) and 222(1) of the Constitution of
India requires consultation with a plurality of Judges in
the formation of the opinion of the Chief Justice of India.
The sole, individual opinion of the Chief Justice of India
does not constitute ‘consultation’ within the meaning of
the said Articles.”
Based upon above discussions and the referred cases, I am of the
view that since the Chief Justice, the head of the judiciary and
paterfamilias of the Judicial fraternity, the opinion/recommendation
tendered by him in appointing Judges in the higher Judiciary has
primacy and as such to uphold the power, position and role of the
judiciary i.e. the Independence of Judiciary, the
opinion/recommendation so tendered by the Chief Justice in
appointing Judges under Article 95(1) of the Constitution is not a mere
formalities at all, rather it has a great significance, importance and
consequence and at the same time the Chief Justice before giving his
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opinion/recommendation to the President should take aid from the
other two Senior Judges of the Appellate Division, next to the Chief
Justice, so that no room for complaint of arbitrariness or unfair play
occurs.
The view taken in the case of S.P. Gupta and others vs. President of
India, reported in AIR 1982 SC 149, that the opinion of the executive
relating to antecedent of the candidate is to prevail over the opinion of
the Chief Justice is overruled in the Second Judges Case. The case of
Gupta’s was decided in the year of 1981 and the Second Judges Case
was decided in the year of 1994. Since Gupta’s case was an earlier one
and the Second Judges Case was later one and by the Second Judges
case, the view taken by the Gupta’s case was overruled as such, I
respectfully unable to concur with the view expressed by one of my
brother relying Gupta’s case on the point of primacy of the opinion in
appointing judges in the higher judiciary.
WHETHER ARTICLE 48(3) OF THE CONSTITUTION IS A
BARRIER FOR JUDICIAL REVIEW:
In defence of the impugned order dated 09.06.2014, learned
Attorney General submits that barring appointment of the Prime
Minister and the Chief Justice, the President is under obligation to act
in accordance with the advice of the Prime Minister and contents of
the advice cannot be enquired into in any Court. Refereeing the case of
Bangladesh and others vs. Md. Idrisur Rahman and others, reported in 29
BLD (AD) 79, learned Attorney General submits that the opinion of the
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executive shall have dominance in the matter of antecedent of a
candidate (Judge) and considering the incident of the appellant the
President of Bangladesh did not appoint him as a permanent Judge of
the High Court Division. On the query of the Court, learned Attorney
General referring Article 48(3) of the Constitution submits that the
basis of advice tendered by the Executive to the President cannot be
enquired into in any Court.
No documents/papers were placed before us to examine the
basis by which the advice was tendered by the executive to drop the
name of the appellant ignoring recommendation of the Chief Justice.
Article 48(3) of the Constitution is reproduced below:
“In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to Clause(3) of
Article 56 and the Chief Justice pursuant to Clause(1) of
Article 95, the President shall Act in accordance with the
advice of the Prime Minister:
Provided that the question whether any, and if so
what, advice has been tendered by the Prime
Minister to the President shall not be enquired into
in any Court.”
Article 74(2) of the Constitution of India is almost similar with
the proviso attached to Article 48(3) of our Constitution.
Article 74(2) of the Constitution of India is as follows:
“74(2) the question whether any, and if so what, advice
was tendered by the Ministers to the President shall not be
inquired into in any Court.”
=97=
This provision of Article 74(2) of the Indian Constitution has
been elaborately discussed in the case of S.R. Bommai and others vs.
Union of India (UOI) and others, reported in AIR 1994 SC 1918, and their
lordships held:
“Article 74(2) is not a barrier for judicial review. It only
places limitation to examine whether any advice and if so
what advice was tendered by the Council of Ministers to
the President. Article 74(2) receives only this limited
protective canopy from disclosure, but the material on the
basis of which the advice was tendered by the council of
Ministers is subject to judicial scrutiny.”
In United States of America the primacy to the executive
privilege is given only where the court is satisfied that disclosure of
the evidence will expose military secrecy or of the document relating
to foreign relations. In other respects the court would reject the
assertion of executive privilege. In United States v. Reynolds 1935 (345)
U.S. 1, Environmental Protection Agency v. Patsy T. Mink 410 U.S. 73 (35)
L Ed. 2nd 119, Newyork Times v. U.S. (1971) 403 U.S. 713 (Pentagon
Papers case) and U.S. v. Richard M. Nixon (1974) 418 U.S. 683: 41 L. Ed.
2nd 1035 what is known as Watergate Tapes case, the Supreme Court
of U.S.A. rejected the claim of the President not to disclose the
conversation he had with the officials.
Judicial review is a basic feature of the Constitution. This Court
has constitutional duty and responsibility to exercise judicial review as
=98=
centennial que vive. Judicial review is not concerned with the merits of
the decision, but with the manner in which the decision was taken.
In the case of R.K. Jain vs. Union of India (UOI) and others,
reported in AIR 1993 SC 1769, the Supreme Court of India observed:
“The Administrative Procedure Act 5, Article 52 was
made. There under it was broadly conceded to permit
access to official information. Only as stated here in before
the President is to withhold top secret documents
pursuant to executive order to be classified and stamped as
‘highly sensitive matters vital to our national defence and
foreign policies’. In other respects under the Freedom of
Information Act, documents are accessible to production.
In the latest Commentary by McCormick on Evidence, 4th
Ed. By John W. Strong in Chapter 12, surveyed the
development of law on the executive privilege and stated
that at p.155, that once we leave the restricted area of
military and diplomatic secrets, a greater role for the
judiciary in the determination of governmental claims of
privilege becomes not only desirable but necessary –
Where these privileges are claimed, it is for the judge to
determine whether the interest in governmental secrecy is
outweighed in the particular case by the litigant’s interest
in obtaining the evidence sought. A satisfactory striking of
this balance will, on the one hand, require consideration of
the interests giving rise to the privilege and an assessment
of the extent to which disclosure will realistically impair
those interests. On the other hand, factors which will affect
the litigant’s need will include the significance of the
evidence sought for the case, the availability of the desired
information from other sources, and in spa instances the
nature of the right being asserted in the litigation.”
=99=
Based on the decisions above, my considered view is that since
reasons would form part of the advice, the Court would be precluded
from calling for their disclosure but Article 48(3) of the Constitution is
no bar to the production of all the materials on which the advice was
based.
Accordingly, I am of the view that the writ petition filed by the
appellant is very much maintainable.
Another fold of argument advanced by the learned Attorney
General that the appellant failed to qualify the criteria for appointment
as a Judge as enumerated in Article 95(2)(a) of the Constitution i.e.
when appointed as an Additional Judge under Article 98 the appellant
was not a practicing Advocate of the Supreme Court for 10(ten) years.
In this context I share the views expressed by my brothers Md. Abu
Zafor Siddique, J. and Jahangir Hossain, J.
I am also share the view of my brothers M. Enayetur Rahim, J.,
Md. Abu Zafor Siddique, J. and Jahangir Hossain, J. that the case of the
appellant may be considered by the appropriate authority concerned.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is also
disposed of in the light of the judgment and order passed in Civil
Appeal No.232 of 2014.
No order in respect of Civil Petition for Leave to Appeal No.2680
of 2014 as it has been abated at the death of sole petitioner.
=100=
However, no order as to costs.
J.
M. Enayetur Rahim, J: I have had the opportunity to go through
the main judgment proposed to be delivered by my learned brother
Obaidul Hasan, J. as well as the individual views/opinions expressed
by learned brothers Md. Ashfaqul Islam, J. Md. Abu Zafor Siddique, J.
and Jahangir Hossain, J.
I am in agreement with the ultimate decision and observations
made by my learned brother Obaidul Hasan, J.
However, on some issues I would like to express my own
opinions.
On behalf of the respondents, the question of maintainability of
the writ petition has never been agitated and leave was not granted on
the said issue. However, my learned brother Obaidul Hasan, J has
opined that in view of the provision of article 51 of the Constitution
the writ petition is not maintainable.
Article 51 of the Constitution is as follows:
“51.(1) Without prejudice to the provisions of article 52,
the President shall not be answerable in any court for
anything done or omitted by him in the exercise or
purported exercise of the functions of his office, but this
clause shall not prejudice the right of any person to take
proceedings against the Government
(2) During his term of office no criminal proceedings
whatsoever shall be instituted or continued against the
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President in, and no process for his arrest or
imprisonment shall issue from, any court.”
Upon meticulous examination of the above provision of the
constitution, it is my considered view that article 51(1) consist of two
parts. First part is, the President shall not be answerable in any court
for anything done or omitted by him in the exercise or purported
exercise of the functions of his office. Second one is, despite the above
provision the right of any aggrieved person to take proceedings
against the Government has been guaranteed.
Article 51(2) speaks that during the term of office of the
president, no criminal proceedings whatsoever shall be instituted or
continued against the President, and no process for his arrest or
imprisonment shall be issued from any Court.
Article 48(3) of the constitution speaks that President in the
exercise of all his functions, save only that of appointing the Prime
Minister pursuant to clause (3) of article 56 and the Chief Justice
pursuant to clause (1) of article 95 shall act inaccordance with the
advice of the Prime Minister.
Article 55(4) of the constitution requires that all executive actions
of the Government shall be taken in the name of the President.
If we read article 48(3) and 55(4) of the constitution together,
then it is abundantly clear that except in two occasions, the decision of
the President is nothing but the decision of the executive including the
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appointment of Judge(s), Additional Judge(s) of both the Divisions of
the Supreme Court.
It is now well settled that judicial review is concerned with
reviewing not the merits of the decision in support of which the
application for judicial review is made, but the decision making
process itself and further, that in judicial review, court can examine
whether in a given case the authority concerned has acted bonafide,
reasonably, just and fairly and also within its jurisdiction.
In the case of Hyundai Corporation vs. Sumikin Bussan
Corporation and others, reported in 54 DLR(AD),88 this Division has
observed that:
“Transparency in the decision making as well as in the
functioning of the public bodies is desired and the judicial
power of review is to be exercised to rein in any unbridled
executive functioning.”
In the case of Tata Cellular vs. Union of India, AIR 1966 (SC)11,
wherein the Supreme Court of India has been held to the effect:
“The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is exercised
for any collateral purpose the exercise of that power will be
struck down.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .
Judicial review is concerned with reviewing not the merits
of the decision in support of which the application of
judicial review is made, but the decision making process
itself.”
=103=
From the records it reveals that prayers made in the present writ
petition by the appellant and writ petition NO.1543 of 2003, heard
along with writ petition Nos.3217 & 2975 of 2003 are also most similar
and identical.(Ten Judges’ cases)
This Division in deciding the Civil Petition for leave to appeal
Nos.2221 and 2222 of 2008 with Civil Petition for leave to appeal
Nos.2046 and 2056 of 2008 [Bangladesh and others vs. Md. Idrisur
Rahman and others, 29 BLD(AD),29], which had arisen out of the
judgment passed in above mentioned ‘Ten judges’ cases’ has held that
judicial review only limited purpose is available in matter of
appointment of judges.
It is pertinent to discuses here that the President of our country
has been given the power of pardon and reprieves under article 49 of
the Constitution of the People’s Republic of Bangladesh.
No doubt President’s such power of granting pardon is very
wide and does not contain any limitation as to the time and occasion
on which and the circumstances in which such power could be
exercised. The pardoning power granted to the President was
historically a sovereign power, politically a residency power and
harmonistically an aid of intangible justice. However, the judicial
review of the pardoning power is a classic illustration of evolution of
law through judicial interpretation. Starting with extreme hesitation to
even look into the subject, the trend has now shifted towards a more
=104=
balance and middle path approach. In the case of Chandra Rabha vs.
Khagendra Nath, MANU/SC/0190/1960 the Supreme Court of India
has clearly made a distinction between judicial and executive power,
which according to it operates a different plans, and one does not
affect the other.
Article 72 and Article 161 of the constitution of India are similar
to article 49 of our Constitution. Article 72 and 161 of the constitution
of India have conferred power upon the president of India and the
Governor of the States respectively to give pardon or remit sentence of
a convict.
In the case of Maru Ram vs. Union of India reported in
AIR(SC),1980, 2147, it has been held that:
“Considerations for exercise of power under Articles
72/161 may be myriad and their occasions protean and are
left to the appropriate Government, but no consideration
nor occasion can be wholly irrelevant, irrational,
discriminatory or malafide. Only in these rare cases will
court examine the exercise.”
In the case of Kehar Singh vs. Union of India reported in Air
1989(SC) 653, it has been held that:
“Upon the consideration to which we had adverted, it
appears to us clear that the question as to the area of
Presidents power under Art, 72 falls squarely within the
judicial domain and can be examined by the Court.”
=105=
In the case of Swaran Singh vs. State of UP, reported in (1998)
SCC 75, it has been held that:
“In view of the said aforesaid settled legal proposition, we
cannot accept the rigid contention of the learned counsel of
the third respondent that this court has no power to touch
the order passed by the Governor under Article 161 of the
Constitution. If such power was exercised arbitrary,
malafide or in absolute disregard of the finer canons of the
constitutionalism, the byproduct order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it.”
In the above case the Supreme Court of India ultimately quashed
the order of remission of sentence of convict Shri Doodh Nath, an
MLA of Uttar Pradesh, on the ground that governor was not posted
with material facts and thereby, he was apparently deprived of the
opportunity to exercise the powers in a fair and just manner. And the
supreme court of India held that: “the order now impugned fringes on
arbitrariness.”[Underlines supplied]
In the case of Shatapal vs. State of Haryana, reported in AIR
2000 (SC) 1702, similar view has been reiterated. In the said case also
the order granting pardon was set aside on the ground that Governor
had not applied his mind to the material on record and has
mechanically passed the order just to allow the prisoner to overcome
the conviction and sentence passed by the court.
=106=
In deciding the merit of the above appeal, the Supreme Court of
India categorically held that:
“There cannot be any dispute with the proposition of law
that the power of granting pardon under Article 161 is
very wide and do not contain any limitation as to the time
on which and the occasion on which and the circumstances
in which the said powers could be exercised. But the said
power being a constitutional power conferred upon the
Governor by the Constitution is amenable to judicial
review on certain limited grounds. The Court, therefore,
would be justified in interfering with an order passed by
the Governor in exercise of power under Article 161 of the
Constitution if the Governor is found to have exercised the
power himself without being advised by the Government
or if the governor transgresses the jurisdiction in
exercising the same or it is established that the Governor
has passed the order without application of mind or the
order in question is a malafide one or the Governor has
passed the order on some extraneous consideration.”
[underlines supplied]
In the Airport Authority case MANU/SC/0048/1979(1979)
IILLJ217SC the Supreme Court of India has held that:
“Every action of the executive Government must be
informed with reason and should be free from
arbitrariness. That is the very essence of the rule of law
and its bare minimal requirement.
It is the pride of our constitutional order that all power,
whatever its source, must, in its exercise, anathematize
arbitrariness and obey standards and guidelines
intelligible and intelligent and integrated with the
=107=
manifest purpose of the power. From this angle even the
power to pardon, commute or remit is subject to the
wholesome creed that guidelines should govern the
exercise even of presidential power.”
In view of the above propositions, the court cannot declare
judicial hands off. So long as the question arises whether an authority
under the constitution has acted with the limit of its power or
exceeded it or the power has been exercised without application of
mind and mechanically or the order in question is a mala fide one or
the order has been passed on some extraneous consideration or how
far the order is fair and reasonable it can certainly be examined and
decided by the court in judicial review. The court cannot be debarred
to examine the decision making process and the correctness of the
decision itself.
A Division Bench of the High Court Division in the case of
Sarwar Kamal vs. The State, reported in 64 DLR(2012) page-329 has
observed:
“.........the action of the president or the Government, as
the case may be, must be based on some rational,
reasonable, fair and relevant principle which is non
discriminatory and it must not be guided by any
extraneous or irrelevant considerations. It is well settled
that all public power including constitutional power shall
never be exercisable arbitrarily or malafide and ordinarily,
guideline for fair and equal execution are guarantors of the
valid play or power and when the mode of power of
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exercising a valid power is improper or unreasonable,
there is an abuse of power”. [Underlines supplied]
It is pertinent to mention here that being aggrieved by the
aforesaid judgment convict Sarwar Kamal filed criminal petition for
leave to appeal No.474 of 2012 before this Division, which was
dismissed for default and eventually, application for restoration was
rejected.
In view of the above propositions as discussed above, I have no
hesitation to hold that the writ petition filed by the present appellant is
not barred in view of the provision of article 51 of the Constitution.
This article, in my opinion gives the President personal immunity
from any kind of civil and criminal proceedings during his term of
office. This immunity does not debar any aggrieved person to take
any proceedings against the decision taken by the Government in view
of provision of the 2nd part of the article 51(1).
Further, if it is hold that the writ petition is not maintainable,
then question would be that in what extent Court can make
observations and give directions on such writ petition.
Thus, I am in respectful disagreement with the observation of
my learned brother Obaidul Hasan, J. that in view of article 51 of the
constitution the writ petition is not maintainable.
Article 95(1) of our constitution enshrined that the judges of the
both the Division of the Supreme Court shall be appointed by the
president after ‘consultation’ with the Chief Justice.
=109=
However, reality is that no guideline(s) or rule(s) is provided or
framed for the President to exercise his power of consultation with the
Chief Justice for appointment of the Judges.
In the ‘Ten Judges’ case High Court Division dealt with the
word ‘consultation’ and its scope and purport. The High Court
Division observed [61 DLR, 523]:
“Consult’, according to Chambers Dictionary, means to
ask advice of : to look up for information or advice: to
consider wises, feelings to discuss. In R Pushpam vs
State of Madras AIR 1953 Mad 392 it was observed
“The word ‘consult’ implies a conference of two or more
persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct, or at least,
a satisfactory solution; would provide rational, legal
constitutional yardstick to measure and ascertain the scope
and content of consultation as contemplated by Article
217(1). It must not be forgotten that the consultation is
with reference to the subject matter of consultation and
therefore relevant facets of the subject matter must be
examined, evaluated and opined upon to complete the
process of consultation. It is necessary that consultation
shall be directed to the essential points and to the core of
the subject involved in the discussion. The consultation
must be enabling the consulter to consider the pros and
cons of the question before coming to a decision. A person
consults another to be elucidated on the subject matter of
the consultation.”[underlines supplies]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
In SP Gupta’s case Bhagwati J, observed as follows:
=110=
“The question immediately arises what constitutes
‘consultation’ within the meaning of clause(2) of Article
124, clause(1), Article 217. Fortunately, this question is
no longer res integra and it stands concluded by the
decision of this Court in Sankalchand Sheth’s case (AIR
1977 SC 2328) (supra). It is true that the question in
Sankalchand Sheth’s case (supra) related to scope and
meaning of ‘consultation’ in clause(1) of Article 222, but
it was common ground between the parties that
‘consultation’ for the purpose of clause(2) of Article 124
and clause(1) of Article 217 has the same meaning and
content as ‘consultation’, in clause(1) of Article 222.”
And
“Krishna Iyer J. speaking on behalf of himself and Fazal
Ali J also pointed out that “all the materials in the
possession of one who consults must be unreservedly
placed before the consultee” and further “a reasonable
opportunity for getting information taking other steps and
getting prepared for tendering effective and meaningful
advice must be given to him” and consultant in turn must
take the matter seriously since the subject is of grave
importance.”
In Al-Jahed Trust case the Supreme Court of Pakistan approved
the majority views with certain modification of the Second Judges’ Case.
The unanimous views are as follows:
“The words “after consultation” employed, inter alia, in
Articles 177 and 193 of the Constitution connote that the
consultation should be effective, meaningful, purposive,
consensus oriented, leaving no room for complaint of
arbitrariness or unfair play”.
=111=
In view of the above propositions ‘Consultation’ means
‘effective consultation’. Such consultation of the President with the
Chief Justice for the purpose of appointment of Judges in the Supreme
Court is not a mere formalities, in other words it's not ‘chatting at the
tea table’; rather, it has a great sanctification, significance, importance,
consequence and far reaching effect.
In the Ten Judges’ cases this Division categorically held that:
“In the matter of selection of the Judges the opinion of the
Chief Justice should be dominant in the area of legal
acumen and suitability for the appointment and in the
area of executive should be dominant. Together, the two
should function to find out the most suitable candidates
available for appointment through a transparent process of
consultation.”
In view of the above, to avoid any controversy in the
appointment of judges’ it is desirable that at the time of consultation
the executive should place all materials relating to the antecedents
before the Chief Justice and Chief Justice shall also place necessary
opinions as to his satisfaction in the area of legal acumen and
suitability for the appointment.
It is expected that in the process of consultation the President
and Chief Justice will reach a consensus and outcome of such
consensus cannot be frustrated or dismissed on any unreasonable plea
or on some extraneous consideration in the grab of exercising the
power under article 48(3) of the constitution. If the positive outcome or
=112=
consensus of the consultation is negated, then the position and image
of both the President and Chief Justice will be undermined.
In the second Judge’s case JS Verma,J. opined that:
“in order to ensure effective consultation between all the
constitutional functionaries involved in the process the
reasons for disagreement, if any must be disclosed to all
others. All consultations with the everyone involved must
be in writing and transmitted to all concerned, as a part of
the record.”[Underlines supplied]
In view of the above, it will be not a luxurious and unjust
expectation that our Constitutional authorities involved in the process
of appointment of Judge shall follow the above method, until relevant
law or rules have been made.
In this particular case from the records, as we have seen, it
reveals that the name of the appellant was recommended by the Chief
Justice. However, reasons are not available in the record for not
appointing him and under the Constitutional scheme, the Court has no
authority to make an inquiry of privilege communication, verbally or
written as the case may be, between the Prime Minister and the
President.
However, I am agreed with the wish as expressed by my learned
brothers Md. Ashfaqul Islam J, Md. Abu Zafor Siddique J, and
Jahangir Hossain J, that the case of the appellant be considered by the
authority.
J.
=113=
Md. Ashfaqul Islam, J: I have had the occasion of going
through the Judgments proposed to be delivered by my learned
brothers, Obaidul Hassan, J., Md. Abu Zafor Siddique, J. and Jahangir
Hossain, J. Upon a thorough assessment and overall aspects of the
issue facing us I am in agreement with the findings and decision of my
brother Obaidul Hassan, J and record my reasons as under:
Repetition of fact is not necessary as his lordship has given an
elaborate and exhaustive deliberation upon the same. The facts only
which are necessary to be discussed in this context, would be
addressed.
The cardinal question before us is whether even after the
recommendation of the Chief Justice upon effective consultation to
appoint a Judge under Article 95(1) of the Constitution the executive is
left with the choice to drop any name so recommended by the Chief
Justice to be appointed as the Judge of the Supreme Court under
Article 95(1) of the Constitution.
Consequently, the provisions of the Constitution governing the
appointment of Judges (Article 95), the appointment of Additional
Judges of the Supreme Court (Article 98) together with the limitation
of the power of the President under Article 48(3) have to be considered
as they have significantly focused on the issue.
Inevitably, the interpretation of the above provisions in this
context has to be made by taking recourse to the methods which are
suggested by the Constitution itself to be followed in so doing. It has
=114=
to be noted that the provisions of the Constitution as stated above are
the outcome of the positive and cohesive thinking of the framers of the
Constitution which they in their wisdom thought it proper to be
incorporated in the Constitution in the manner as they exist in the
Constitution to meet different situations, exigencies and requirements.
Otherwise those provisions would not have been there.
Keeping primarily in mind what I have discussed let me now
dwell upon the issue before me. The appointment of the Judges of
both the Divisions of the Supreme Court by recommending and
selecting names of the eligible persons apparently seems to be noble as
it endeavors in the process of appointment to uphold the primacy of
the Chief Justice of Bangladesh in the searching who are the best
choice to become member of their own fraternity. Pertinently, it has to
be mentioned that no implied limitation, can be applied while
interpreting a written Constitution like ours when the limitations are
clearly spelled out in the provision of the Constitution itself.
A rock solid basis of the Constitution requiring a very intrinsic
interpretation is Article 48(3) and its proviso which has to be
considered in this regard. Under Article 48(3) excepting the
appointment of the Prime Minister and the Chief Justice, the President
shall be acting in accordance with the advice of the Prime Minister. So
the express Constitutional provision which limits the power of the
President under Article 48(3) is unquestionable. Mr. Mahmudul Islam
in his book ‘Constitutional Law of Bangladesh’ stated that-
“Art. 48(3) provides that the question whether any, and if
so what, advice has been tendered by the Prime Minister to
=115=
the President shall not be inquired into by any court as it is
politically undesirable to have a disclosure of the advice
tendered. Because of this provision there can be no remedy
in court if a President chooses to act without or against the
advice of the Prime Minister. It is true that the possibility
of impeachment for violating the Constitution will act as a
deterrent, but "this fear in the world of political intrigues
that are incidental to the game of power-politics, is not,
after-all such an effective brake upon the designs of an
irresponsible President." If the government produces the
papers showing the advice tendered, the court may look
into such papers and can come to its findings on the basis
of such papers.” India v. Jyoti Prakash, AIR 1971 SC 1093.
The power of the appointment of the Judges of the Supreme
Court lies with the President who exercises the power within the
limitations of Article 48(3) of the Constitution. The President appoints
additional judges of the Supreme Court and the Judges of the Supreme
Court under Articles 98 and 95 of the Constitution respectively. When
the President is satisfied that the number of Judges of the Supreme
Court should be increased he makes appointment. Before the Fourth
Amendment of the Constitution, the Chief Justice was to be consulted
while making the appointment of the Judges of the Supreme Court.
Though the said provision of Constitution had been amended by the
Fourth amendment ignoring consultation with the Chief Justice for the
appointment of Judges even then the ‘convention’ of consulting with
the Chief Justice before making any appointment of the Judges of the
=116=
Supreme Court had been followed consistently. A deviation that
happened in 1994 was cured forthwith reaffirming the convention as it
used to be followed before. The fifteenth amendment, however,
reproduced the provision of consultation with the Chief Justice in the
matter of appointment of the judges of the Supreme Court.
While appreciating the core issue before us regard has to be
taken whether Article 95(1) of the Constitution under which judges of
the Supreme Court is appointed should be construed giving a strict
interpretation employing a sense of rigidity or it should be interpreted
and viewed with a liberal and flexible vision by taking into account
some other related Constitutional Provisions and also from the
perspective of some realities and unimpeachable circumstances.
My approach on the point is somewhat different. I would like to
embark upon some express constitutional aspects having an indelible
ingrained meaning and status universal in nature, to appreciate the
entire issue facing us.
Let me first focus upon the different views taken by the superior
Courts of home and abroad on the norms of the interpretation of the
Constitutional provisions. It is generally said that the principles
relating to interpretation of statutes are applicable in interpreting the
provisions of Constitution. In the decision of Commissioner of Tax vs.
Gulistan Cinema 28 DLR (AD) 14, Kemaluddin Hossain, J observed:
"The rule of interpretation of the Constitution is same as
the interpretation of a Statute."
=117=
In the case of Syed Ghulam Ali Shah V. State 22 DLR (SC) 247 M
R Khan, J observed what should be the mode of interpretation of the
Constitutional provisions in the following manner,
“Now it is another well recognized cannon of
interpretation that a provision of a Constitution Act should
not be construed in a narrow or restricted sense, but widest
possible construction should be given to it according to the
ordinary meaning of the word used and each general word
should be held to extend to all ancillary and subsidiary
matters which can fairly and reasonably be said to be
comprehended in the same.”
Same view was taken in Mohammad Nur Hussain -Vs- Province
of East Pakistan PLD 1959 (SC) 470.
Mr. Mahmudul Islam, Senior Advocate, Supreme Court in his
Constitutional Law of Bangladesh while giving his deliberation on
liberal interpretation of the Constitution has found, "If two
constructions are possible, the court shall adopt that which
implements, and discard that which stultifies the apparent intention of
the framers of the Constitution. The rule of strict construction applied
to penal and fiscal statutes is not applicable in the matter of
Constitutional interpretation. Constitutional enactment should be
interpreted liberally and not in any narrow or pedantic sense".
Likewise Seervai in his ‘Constitutional Law of India’ on the same
point found, "well established rules of interpretation require that the
meaning and intention of the framers of a Constitution be it a
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parliament or a Constituent Assembly- must be ascertained from the
language of that Constitution itself; Seervai further viewed that the
golden rule in construing a Constitution conferring the most liberal
construction should be put upon the words so that they may have
effect in their widest amplitude.”
In the famous case of A.K. Gopalan-V- State of Madras AIR 1950
(SC)27, Justice B.K. Mukherjea expressed his view in the manner:
“The Constitution must be interpreted in a broad and
liberal manner giving effect to all its parts, and the
presumption should be that no conflict or repugnancy was
intended by its framers. In interpreting undoubtedly apply
which are applicable in construing a statute, but the
ultimate result must be determined upon the actual words
used not in vaccuo but as occurring in a single complex
instrument in which one part may throw light on the
other.”
In the land mark decision of S.C. Advocate-on-Record
Association vs. Union of India reported in AIR 1994 (SC) 268 Supreme
Court of India in an unambiguous term interpreted the provision of
the Constitution. In that decision it was held that the general Rule
governing statutory interpretation that statute should be read as
having a fixed meaning, speaking from the date of enactment is not
applicable in the case of Constitutional interpretation. It is
undoubtedly that terms of the Constitution are to be interpreted by
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reference of their meaning when it was framed, but it does not mean
that they are to be read as comprehending only such manifestation on
the subject matter named as were known to the framer.
In that decision Justice S. Ratnavel Pandian observed:
“The proposition that the provisions of the Constitution
must be confined only to the interpretation which the
framers, with the conditions and outlook of their time
would have placed upon them would not be tenable and is
liable to be rejected for more than one reason-firstly, some
of the current issues could not have been foreseen;
secondly, others would not have been discussed and
thirdly, still others may be left over as controversial issues,
i.e. termed as deferred issues with conflicting intentions.
Beyond these reasons, it is not easy or possible to decipher
as to what were the factors that influenced the mind of the
framers at the time of framing the Constitution when it is
juxtaposed to the present time. The inevitable truth is that
law is not static and immutable but ever increasingly
dynamic and grows with the ongoing passage of time.”
Justice Kuldip Singh maintained,
“It is not enough merely to interpret the Constitutional
text. It must be interpreted so as to advance the policy and
purpose underlying its provisions. A purposeful meaning,
which may have become necessary by passage of time and
process of experience, has to be given. The Courts must
face the facts and meet the needs and aspirations of the
times. Interpretation of the Constitution is a continual
process. The institutions created thereunder, the concepts
propounded by the framers and the words, which are
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beads in the Constitutional-rosary, may keep on changing
their hue in the process of trial and error, with the passage
of time. The Constitution has not only to be read in the
light of contemporary circumstances and values, it has to
be read in such a way that the circumstances and values of
the present generation are given expression in its
provisions.”
Even Justice A.M. Ahmadi who delivered a dissenting judgment
in that decision further made it clear,
“The concern of the judiciary must be to faithfully interpret
the Constitutional provisions according to its true scope
and intent because that alone can enhance public
confidence in the judicial system.”
There is an interesting aspect to be noted here which is also
relevant in the context. The Constitution of India was published on the
26th day of November 1949 and only a year after of the said
publication the famous decision of A.K. Gopalan V. State of Madras
AIR (1950) SC 27 was delivered wherein, as I have already discussed,
the concept of liberal interpretation of the Constitution was
propounded. To my utter surprise I find that even after 44 years of
that decision the same concept of liberal interpretation of the
Constitution remained unchanged as it could be found in the land
mark decision of S.C. Advocate-on-Record V. Government of India
AIR(1994) S.C. 268 which I have discussed.
In Ministry of Home Affairs V. Fisher reported in 3 All E.R.
(1979) 21 their Lordships of the Privy Council observed,
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“This is in no way to say that there are no rules of law
which should apply to the interpretation of a Constitution.
A Constitution is a legal instrument giving rise, amongst
other things, to individual rights capable of enforcement in
a Court of law respect must be paid to the language which
has been used and to the traditions and usage which have
given meaning to that language.”
From its' inception the American Supreme Court felt that a
Constitution must be given a treatment different from statutes and
proceeded on liberal interpretation. In Mc. Culloch v. Maryland it
observed, "We must never forget that it is a Constitution we are
expounding" and went on to say that a Constitution is intended to
endure for ages to come and consequently to be adapted to the various
crises of human affairs. In the words of famous American legal scholar
Roscoe Pound-
“The Constitution is not a glorified police manual.
Constitutional provisions lay down great principles to be
applied as starting points for legal and political reasoning
in the progress of society. A Constitution may lay down
hard and fast rules such as, for example, those fixing the
exact terms of office and apportioning duties among public
functionaries. But the principles established by the
Constitution are not to be interpreted and applied strictly
according to the literal meaning of words used by the
framers as if they laid down rules. Interpretation of
Constitutional principles is a matter of reasoned
application of rational precepts to conditions of time and
place.”
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The American Constitution is treated to be the most rigid and
inflexible Constitution.
Keeping in the back of mind what I have discussed let me now
digress upon the issue before me.
Comprehensive, integrated and holistic approach in
propounding the legal principle enunciated in the cases of S.P Gupta
and others vs. president of India and others, reported in AIR 1982 SC
149, S.C. Advocates-on-Record V. Union of India AIR 1994 SC 268,
Bangladesh and others vs. Md. Idrisur Rahman, Advocate and others
29 BLD AD 79, Al-Jehad Trust Case PLD 1996 SC 324, Ragib Rauf
Chowdhury vs. Government of Bangladesh and others 69 DLR 317
and so on are all awe-inspiring well founded concerted decisions
having an epitome all its own. All of them preached the primacy of the
Chief Justice in the process of appointment of the Judges. Since much
elaborations upon all these decisions have already been given by my
learned brothers I refrain from repeating those.
In Shanti Bhushan vs. Union of India 2009 1 SCC 657
Respondent was appointed as additional Judge with effect from
03.04.2003. However, in between, seven Additional Judges were
appointed as permanent Judges on 27.07.2005 but the incumbent
respondent was left out and was given extension as Additional Judge.
The Supreme Court of India with disapproval of the aforesaid
extension observed:
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“If a person is unsuitable to be considered for appointment
as a permanent Judge because of circumstances and events
which bear adversely on mental and physical capacity,
character and integrity or other relevant matter rendering
it unwise for appointing him as a permanent Judge, same
yardstick has to be followed while considering whether
any extension is to be given to him as an Additional
Judge.”
It was also observed:
“As rightly submitted by learned Counsel for the Union of
India unless the circumstances or events arise subsequent
to the appointment as an Additional Judge, which bear
adversely on the mental and physical capacity, character
and integrity or other matters the appointment as a
permanent Judge has to be considered in the background
of what has been stated in S.P. Gupta's case (supra).
Though there is no right of automatic extension or
appointment as a permanent Judge, the same has to be
decided on the touchstone of fitness and suitability
(physical, intellectual and moral). The weightage required
to be given cannot be lost sight of. As Justice Pathak J, had
succinctly put it there would be reduced emphasis with
which the consideration would be exercised though the
process involves the consideration of all the concomitant
elements and factors which entered into the process of
consultation at the time of appointment earlier as an
additional Judge. The concept of plurality and the limited
scope of judicial review because a number of constitutional
functionaries are involved, are certainly important factors.
But where the constitutional functionaries have already
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expressed their opinion regarding the suitability of the
person as an Additional Judge, according to us, the
parameters as stated in para 13 have to be considered
differently from the parameters of para 12. The primacy in
the case of the Chief Justice of India was shifted because of
the safeguards of plurality. But that is not the only factor.
There are certain other factors which would render the
exercise suggested by the petitioners impracticable.
Having regard to the fact that there is already a full
fledged participative consultation in the backdrop of
pluralistic view at the time of initial appointment as
Additional Judge or Permanent Judge, repetition of the
same process does not appear to be the intention.”
Article 95(1) of the Constitution in clear terms manifested
consultation with the Chief Justice before appointment of a judge
under that Article. Effective consultation so to say primacy of the
Chief Justice’s recommendation in the process of appointment has
been a well grained and unquestionable requirement but the fact
remains what will be the situation if an appointment of a judge is hit
by the positive prohibition under Article 95(2) regardless of the
detection of the same at any point of time?
Article 95(2) provides:-
“A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and–
(a) has, for not less than ten years, been an advocate of the
Supreme Court ; or
(b) ……………
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(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.”
My brother Obaidul Hassan, J has given a thought provoking
analysis of this issue in minute details and hence I am not required to
cross swords on that. Harping on the same tune I would fortify that
the aforesaid provision 95(2)(a) of ours, unlike Indian Constitution on
the point (Article 217(2)(b)), is rigid and dogmatic.
Indian Constitution in this respect has given a relaxation
incorporating Article 217(2) explanation (aa). In 1978 by 44th
amendment act this provision was incorporated. It provides:-
“in computing the period during which a person has been
an advocate of a High Court, there shall be included any
period during which the person has held judicial office or
the office of a member of a tribunal or any post, under the
Union or a State, requiring special knowledge of law after
he became an advocate.”
Since no such provisions has been attached in our Constitution
in respect of Article 95(2)(a), the same cannot be stretched inducting
any analogy enhancing its scope. The case of appellant ABM Altaf
Hossain has certainly fall within the mischief of positive prohibition of
Article 95(2) of the Constitution as hinted with approval by my
brother Obaidul Hassan, J.
At the same time I also record that to uphold the primacy of the
Chief Justice any legal lacuna or predicament which might have
negate the appointment in any manner should have been brought to
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the notice of the Chief Justice at the earliest. Regrettably, that has not
been done in the instant case. Recommendation of Chief Justice is
certainly prime and sublime but at the same time if there is any
inherent defect which has escaped notice of the Chief Justice because
of mistake or otherwise the interpretation of the Constitution of ours
to that extent is rigid.
Incumbent Appellant ABM Altaf Hossain’s case has been
assessed and evaluated with all the trappings of interpretation of the
Constitution as discussed above and nothing is left unsaid.
Before parting I would record that with the lapse of time if the
appellant has acquired qualification to be appointed as a Judge of the
Supreme Court that may be considered by the authority favorably.
With the above observations, the Civil Appeal No. 232 of 2014 is
hereby disposed of.
Civil petition for leave to appeal No. 602 of 2017 is also disposed
of in the light of the observations as stated above. No order in respect
of civil petition for leave to appeal No. 2680 of 2014 as it has been
abated at the death of the sole petitioner.
J.
Md. Abu Zafor Siddique, J: I have gone through the judgments
proposed to be delivered by my learned brothers, Obaidul Hassan, J.
and Jahangir Hossain, J. Having gone through the same, I find myself
in agreement with the decision and findings arrived at by my learned
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brother, Jahangir Hossain, J. It is required to be mentioned that we
have come to an unanimous decision of disposing of this appeal with
the individual findings and observations of our own. Accordingly, I
would like to write the judgment of my own since the points involve
in this appeal are on the constitutional question of special importance
with regard to the appointment of the Judges under article 95 of the
Constitution on the consultation with the Hon’ble Chief Justice.
This civil appeal, by leave, is directed against the judgment and
order dated 24.09.2014, passed by the High Court Division in Writ
Petition No.7489 of 2014 summarily rejecting the same.
Facts, leading to this civil appeal, in short are as follows:
The appellant obtained L.L.B (Hon’s) and L.L.M. Degree with
First Class from the University of Rajshahi. He also obtained L.L.B
(Hon’s) from the University of Wolverhampton, U.K., Post Graduate
Diploma in Professional and Legal Skills from Inns of Court School of
Law, City University, London and after successful completion of Bar
Vocational Course from the same University he was called to the Bar
as a Barrister by the Hon’ble Society of Lincoln’s Inn, London, UK. He
also obtained Diploma in Human Rights with distinction from
Humanist and Ethical Association of Bangladesh. He was enrolled
with the Bangladesh Bar Council as an Advocate on 06.12.1998 and he
was permitted to practice in the High Court Division on 18.06.2000
and thereafter, he was enrolled as an Advocate of the Appellate
Division of the Supreme Court on 18.05.2011. He was appointed as a
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Deputy Attorney General for Bangladesh on 03.11.2010 and while
serving as a Deputy Attorney General, he was appointed as an
Additional Judge of the High Court Division of the Supreme Court of
Bangladesh along with five other Additional Judges under article 98 of
the Constitution vide Notification No.10. 00. 0000. 128. 011. 010. 2012-
816 dated 13.06.2012 and accordingly, he was administered oath as
such along with other five Judges on 14.06.2012.
It is further stated that as an Additional Judge of the High Court
Division, the appellant performed his functions and discharged his
duties with utmost sincerity, integrity, honesty and diligence as an
oath-abiding Judge. On due consideration and evaluation of the
performance rendered by the appellant as an Additional Judge, the
Hon’ble Chief Justice recommended the names of all the six
Additional Judges including the appellant for appointment as a Judge
of the High Court Division of the Supreme Court of Bangladesh under
article 95 of the Constitution by the Hon’ble President and such fact of
recommendation by the Hon’ble Chief Justice has been widely
published in the newspapers. However, it is stated that, to the utter
surprise and disappointment, he came to know from the Gazette
Notification No.10 .00 .0000. 128. 011. 010. 2012-472 dated 09.06.2014
by which the other five Additional Judges with whom he was
appointed under article 98 of the Constitution have been appointed by
the Hon’ble President under article 95 of the Constitution as Judges of
the High Court Division excluding the name of the appellant.
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In the circumstances, the appellant had filed the writ petition
bringing the allegation of violation of articles 94 and 95 of the
Constitution as well as the principle as settled by this Division in the
case of Bangladesh and others Vs. Idrisur Rahman, Advocate and
others reported in 29 BLD (AD)79 for not appointing him as a Judge
of the High Court Division under article 95 of the Constitution despite
the fact that the Hon’ble Chief Justice of Bangladesh who has legal
acumen in this field and being empowered under the Constitution has
recommended him along with other five Judges to be appointed as a
Judge under article 95 of the Constitution.
The High Court Division, upon hearing the parties and on
perusal of the writ petition along with all connected papers annexed
thereto, rejected the writ petition summarily by the judgment and
order dated 24.09.2014.
Being aggrieved by and dissatisfied with the judgment and
order dated 24.09.2014 passed in Writ Petition No.7489 of 2014 the writ
petitioner-appellant herein filed Civil Petition for Leave to Appeal
No.2626 of 2014 before this Division and obtained leave by order
dated 06.11.2014 which gave rise to the instant civil appeal.
The points/grounds involved in this appeal on which leave was
granted for determination and adjudication of the same run as follows:
I. Whether Article 95(1) of the Constitution having expressly
provided/stipulated that the Judges of the Supreme Court shall be
appointed by the President after consultation with the Chief Justice,
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the opinion and recommendation resulting from and being a part of
such consultation, the opinion/recommendation of the Chief Justice
shall have/get primacy over the views and opinions of the Executive
in the matter of the appointment of Judges, and the Chief Justice
having recommended the writ-petitioner as Judge for confirmation
and appointment under Article 95 of the Constitution, the
dropping of the name of the petitioner from the Notification dated
06.06.2014 ignoring the opinion/recommendation of the Chief
Justice without assigning any cogent reason is without lawful
authority and a violation of the Constitution.
II. Whether the independence of judiciary as enshrined in our
Constitution being a basic structure of our Constitution, which
cannot be demolished or curtailed or diminished in any manner,
and which basic structure cannot even be amended by the
Parliament being beyond its amending power by reason of Article
7B of the Constitution, and there being no provision in the
Constitution authorizing the President under Article 48(3) of the
Constitution to curtail or diminish the said independence by
ignoring the opinion/recommendation of the Chief Justice, non
appointment of the writ-petitioner ignoring and bypassing the
opinion of the Chief Justice is a violation of the basic structure of
the Constitution and as such dropping his name from the Gazette
Notification without cogent reason is without lawful authority and
unconstitutional.
III. Whether the constitutional process being initiated by the executive,
whose opinion in the matter of antecedents being already there, and
the Chief Justice in the process of consultation having had the
benefit of perusing and examining such opinion of the executive,
the opinion of the Chief Justice recommending the writ-petitioner
for appointment overruling/disregarding such executive opinion,
there cannot be any cogent reason for dropping the name of the
petitioner from the list of Judge to be appointed under Article 95,
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and as such, the impugned action is without lawful authority and
unconstitutional.
IV. Whether the case in question is not only a matter of an individual
petitioner not having been appointed under Article 95 of the
Constitution bypassing the recommendation of the Chief Justice,
but it also raises the important constitutional question centering
around the constitutional pole and exalted position and office of the
Chief Justice as head of the judiciary, and meaning of consultation
being effective and meaningful, the disregard without cogent
reasons of the opinion/recommendation of the Chief Justice is
tantamount to not only a violation of the Constitution but also
reducing and diminishing the power, position and role of the Chief
Justice under the Constitution.
V. Whether Ten Judges case as reported in 29 BLD(AD)page 79
having contained anomaly and inconsistency touching upon the
obiter dicta and ratio decidendi of the case, and there being an
observation in the impugned judgment of the High Court Division
that the Judges of the Appellate Division was silent on the question
of difference of opinion between the Chief Justice and Executive,
thereby leaving no way out to resolve the issue by the High Court
Division, in this case particularly having regard to the findings of
the Appellate Division in Ten Judges case that the opinion of the
executive will have dominance in the matter of antecedent, the
findings in Ten Judges case ought to be re-examined and revisited
for the sake of clear and unambiguous pronouncement from this
Division clarifying the said judgment, law and the Constitution.”
The learned Advocates appearing on behalf of the appellant
made submissions based on the grounds as quoted hereinabove on
which leave was granted to consider the same.
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Referring to the decision in the case of Bangladesh and others
Vs. Md. Idrisur Rahman and others reported in 29 BLD (AD) 79 the
learned Attorney General along with the learned Additional Attorney
General appearing on behalf of the respondents submit that since, the
opinion of the executive will have dominance in the matter of
antecedents of a candidate (judge) and since, the antecedent of the
appellant was not satisfactory, the Hon’ble President rightly did not
appoint the appellant as a permanent judge of the High Court Division
under article 95 of the Constitution and as such, the High Court
Division rightly rejected the writ petition summarily and the same
does not call for any interference by this Division.
Heard the learned Advocates and the learned Attorney General,
along with learned Additional Attorney General and perused the writ
petition along with the impugned judgment and papers annexed
thereto and also the constitutional provisions and the concerned
decisions placed by the parties.
Regarding the first point which is for adjudication by us is as to
whether the opinion and recommendation of the Chief Justice shall
have primacy over the views and opinions of the Executive in the
matter of appointment of Judges. In order to appreciate this point, it is
apposite to consider the Constitutional provisions relating to
consultation such as articles 95(1), 98, 116, 116A and the decisions of
Masdar Hossain’s case.
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Article 95(1) of the Constitution before its amendment in 1975
was as under:
“The Chief Justice shall be appointed by the President, and the other
Judges shall be appointed by the President after consultation with the
Chief Justice.”
After its amendment in 1975, article 95(1) runs as follows:
“The Chief Justice and the other Judges shall be appointed by the
President.”
Thus it is clear that the expression “after consultation with the
Chief Justice” is no more there in article 95(1) of the Constitution.
Again, article 98 of the Constitution before it’s amendment in
1975 was as under:-
“Notwithstanding the provisions of article 94, if the President is
satisfied, after consultation with the Chief Justice, that the number of
the Judges of a division of the Supreme Court should be for the time
being increased, the President may appoint one or more duly qualified
persons to be Additional Judges of that division for such period not
exceeding two years as he may specify, or if he thinks fit, may require a
Judge of the High Court Division to sit in the Appellate Division for
any temporary period;
Provided that nothing in this article shall prevent a person appointed
as an Additional Judge from being appointed as a Judge under article
95 or as an Additional Judge for a further period under this article.”
After it’s amendment in 1975, article 98 of the Constitution is as
under:-
“Notwithstanding the provisions of article 94, if the President is
satisfied that the number of the Judges of a division of the Supreme
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Court should be for the time being increased, the President may appoint
one or more duly qualified persons to be Additional Judges of that
division for such period not exceeding two years as he may specify, or if
he thinks fit, may require a Judge of the High Court Division to sit in
the Appellate Division for any temporary period as an Ad hoc Judge
and such Judge while so sitting, shall exercise the same jurisdiction,
power and functions as a Judge of the Appellate Division;
Provided that nothing in this article shall prevent a person appointed
as an Additional Judge from being appointed as a Judge under article
95 or as an Additional Judge for a further period under this article.”
However the expression “consultation” is still there in article 116
of the Constitution which provides that the control and discipline of
persons employed in the judicial service and magistrates exercising
judicial functions shall vest in the President and shall be exercised by
him in consultation with the Supreme Court.
The expression ‘consultation’ has been dealt with and
considered in the case of Secretary, Ministry of Finance Vs. Md.
Masdar Hossain reported in 20 BLD(AD)104 wherein it has been held
that, “under article 116 the views and opinion of the Supreme Court on any
matter covered by that article shall get primacy over the views and opinion of
the executive.”
It is true that ‘consultation’ was considered in the light of article
116 of the Constitution but, nevertheless the same principle is being
applied in the matter of appointment of Judges of the Supreme Court
under articles 98 and 95 of the Constitution because without the
independence of the Supreme Court there cannot be any
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independence of the subordinate courts and without consultation and
primacy, the separation of judiciary from the executive will be empty
words. The principle of consultation with primacy of opinion of the
Chief Justice is no longer res-integra and being an integral part of
independence of judiciary the same is inherent in the very scheme of
the Constitution. There has been unbroken and continuous convention
of consultation with the Chief Justice in the matter of appointment of
Judges.
In the case of S.P. Gupta and others Vs. President of India and
others reported in AIR 1982(SC)149, Supreme Court Advocates-on-
Record Association Vs. Union of India reported in AIR 1994 page
269 and Special Reference No.1 of 1998 and Al-Jehad Trust Vs.
Federation of Pakistan reported in PLD 1996 Vol. 1 page 324 it has
been settled that, “consultation with the Chief Justice is a pre-requisite and
the opinion of the Chief Justice shall have primacy.”
From the above, it is clear that consultation with the Chief Justice
in the matter of appointment of Judges with its primacy is an essential
part of the independence of judiciary.
In the case of Bangladesh and others Vs. Md. Idrisur Rahman,
Advocates and others reported in 29 BLD(AD)79 it has been held
that, “in the matter of selection of the Judges the opinion of the Chief Justice
should be dominant in the area of legal acumen and suitability for the
appointment and in the area of antecedents the opinion of the executive should
be dominant.”
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In such view of the matter, I am of the opinion that the Chief
Justice and the executive should function together to find out the most
suitable candidates available for appointment through a transparent
process of the Constitution. The duty of all organs of the state is that
the public trust and confidence in the judiciary may not go in vain. We
have no doubt that every constitutional functionary and authority
involved in the process is as much as we are to find out the true
meaning and importance of the scheme envisaged by the relevant
constitutional obligations avoiding transgression of the limits of the
demarcated power.
Regarding the point as to whether the independence of judiciary
as enshrined in our Constitution is a basic structure of the Constitution
and whether the same can be amended, curtailed or diminished in
view of article 7B of the Constitution, in this respect the Appellate
Division in the Ten Judges case held that, “independence of judiciary
affirmed and declared by the Constitution is a basic structure of the
Constitution and cannot be demolished or diminished in any manner.”
However, with regard to the constitutional provisions of article
48(3) and 55(2) of the Constitution, this Division in the case of
Bangladesh and others Vs. Md. Idrisur Rahman, Advocates and
others reported in 29 BLD(AD)79 has discussed in details.
So far the point as raised in ground No.V of this appeal the
decision of the Ten Judges Case is very clear and unambiguous and as
=137=
such, the same guaranteed no interference by this Division in the
present case.
However, I would like to conclude with the same remark relying
on the findings given by my learned brother Jahangir Hossain, J
regarding consideration of the case of the appellant to appoint him as
Judge under article 95(1) of the Constitution.
It is evident from the record that dropping the name of the
appellant from being appointed as a permanent Judge took place on
09.06.2014. Since we do not find any antecedent against the appellant
and since his other qualifications find support the case of the appellant
namely A.B.M. Altaf Hossain who may be considered to be appointed
under article 95(1) of the Constitution as permanent Judge in the High
Court Division in the light of the above observations.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is hereby
disposed of in the light of the observation as stated above. No order in
respect of Civil Petition for Leave to Appeal No.2680 of 2014 as it has
been abated at the death of the sole petitioner.
J.
Jahangir Hossain, J: I have gone through the judgment of my
learned brother, Obaidul Hassan, J. Though I am in respectful
agreement with some of the points arrived at by him, yet having
=138=
regard to the important constitutional points involved in the case, I
would like to give my own reasons for those points and would also
add some of my opinions on a few other points.
The facts of the case have already been narrated in details in the
main judgement. Hence, I would not repeat on the same facts. In the
instant civil appeal, non-appointment of a Judge of the High Court
Division has been challenged and called in question on the ground
that the appellant has not been appointed under Article 95 of the
constitution of the People’s Republic of Bangladesh [hereinafter
referred to as the Constitution] despite the consultation and
recommendation of the Chief Justice.
The High Court Division summarily rejected the writ petition of
the appellant on the ground of Bangladesh and others-Vs-Idrisur
Rahman, widely known as ten Judges’ case, reported in
29BLD(AD)79 in which the outcome of the event of the
recommendation of Chief Justice conflicting with decision of the
Executive was not stated. This means the opinion or recommendation
of the Chief Justice has primacy in the matter of appointment of such
Judges or not. Apart from this, an additional Judge has a right to a writ
of mandamus to secure his appointment as a permanent Judge of the
High Court Division of the Supreme Court of Bangladesh.
According to Article 148 (1) of the constitution, a person elected
or appointed to any office in ‘Third Schedule’ shall before entering
upon the office make and subscribe an oath or affirmation [in the
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article referred to “an oath”] in accordance with that Schedule. The
third schedule of the Constitution provides that ‘Chief Justice or
Judges. An oath [or affirmation] in the following forms shall be
administered, in the case of Chief Justice by the President, and in the
case of a Judge appointed to a Division by the Chief Justice, which is
shown as follows:
“I, ………………………………, having been appointed
Chief Justice of Bangladesh (or Judge of the
Appellate/High Court Division of the Supreme Court) do
solemnly swear (or affirm) that I will faithfully discharge
the duties of my office according to law; That I will bear
true faith and allegiance to Bangladesh: That I will
preserve, protect and defend the Constitution and the laws
of Bangladesh: And that I will do right to all manner of
people according to law, without fear or favour, affection
or ill-will.”
Generally in Bangladesh any oath ceremony occurs in the form
of our national language so that every citizen of the country could
understand the meaning and spirit of the sacred oath, which is quoted
below:
“6z fËd¡e ¢hQ¡lf¢a h¡ ¢hQ¡lLz-fËd¡e ¢hQ¡lf¢al ®rœ l¡ÖVÊf¢a LaѪL Hhw p¤fË£j
®L¡YÑ~l ®L¡e ¢hi¡Nl ®L¡e ¢hQ¡lLl ®rœ fËd¡e ¢hQ¡lf¢a LaѪL ¢ejÀ¢m¢Ma glj
nfb (h¡ ®O¡oZ¡)-f¡W f¢lQ¡¢ma qChx
B¢j . . .......... , fËd¡e ¢hQ¡lf¢a (h¡ ®rœja p¤fË£j ®L¡VÑl
Bf£m/q¡CL¡VÑ ¢hi¡Nl ¢hQ¡lL) ¢ek¤š² qCu¡ pnËÜ¢Qš nfb(h¡ cªti¡h ®O¡oZ¡)
L¢la¢R ®k, B¢j BCe-Ae¤k¡u£ J ¢hnÄÙ¹a¡l p¢qa Bj¡l fcl LaÑhÉ f¡me L¢lhx
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B¢j h¡wm¡cnl fË¢a AL«¢œj ¢hnÄ¡p J Be¤NaÉ ®f¡oZ L¢lh;
B¢j h¡wm¡cnl pw¢hd¡e J BCel lrZ, pjbÑe J ¢el¡fš¡¢hd¡e L¢lh;
Hhw B¢j i£¢a h¡ Ae¤NËq, Ae¤l¡N h¡ ¢hl¡Nl hnha£Ñ e¡ qCu¡ pLml fË¢a BCe-
Ae¤k¡u£ kb¡¢h¢qa BQlZ L¢lhz”
............
Similar to the oath of Hon’ble President, Hon’ble Prime Minister
and other Ministers, need to preserve, protect and defend the
Constitution. In addition, Judges also need to preserve, protect and
defend the Constitution and the laws of Bangladesh by their oath. So,
it is very important to bear in mind that the Judges have to do justice
but in accordance with law, nothing less, nothing more. Political
regimes might change, the Judges might change but the judgment
given by a Judge would remain constant.
However, it is needed to be reiterated that in the Article 48(3)
and 52(2) of the Constitution has been elaborately discussed in the
main judgement of the case wherefrom it reminds to me that in the
case of Raghib Rauf Chowdhury-Vs-Bangladesh, 69 DLR 317 in
which it was held that:
“46. The eligibility of the Judges has been mentioned in the
Article 95(2). In spite of that the petitioner by filing this writ
petition wanted to give a guideline how the persons who are in
the helm of affairs should act and what should be a criterion for
the persons to be recruited in the higher judiciary. Since the
opinion of the Chief Justice has been made mandatory for the
=141=
executive, presumably it can be said that the Chief Justice being
the head of the judiciary, one of organs of the State will recruit
the proper persons in the higher judiciary having proper legal
background, i.e. sufficient knowledge of law, man of dignity
and integrity. The petitioner’s submission is that for the sake of
independence of judiciary the recruitment process of the Judges
of the higher judiciary must be free from all political influences.
It is his apprehension that since vide Article 48(3) of the
Constitution there is a provision to take advice from the Prime
Minister, the President is bound to listen his/her advice, thus
there might be political influence in the process of recruitment of
the Judges in the higher judiciary. In this regard Mr. Justice
Abdul Matin in the case of Bangladesh-Vs-Md. Idrisur
Rahman Advocate reported in 29BLD(AD)79 has said that
“therefore the expression” independence of judiciary” is also no
longer res-integra rather has been authoritatively interpreted by
this Court when it held that it is a basic pillar of the Constitution
and cannot be demolished or curtailed or diminished in any
manner accept[sic] and under the provision of the Constitution.
We find no existing provision of the Constitution either in
Articles 98 and 95 of the Constitution or any other
provision which prohibits consultation with the Chief
Justice and primacy is in no way in conflict with Article
48(3) of the Constitution. The Prime Minister in view of
Article 48(3) and 55(2) cannot advise contrary to the basic
feature of the Constitution so as to destroy or demolish
the independence of judiciary. Therefore, the advice of the
Prime Minister is subject to the other provision of the
Constitution that is Article 95, 98, 116 of the
Constitution.”
[underline of mine is given for emphasis]
=142=
The aforesaid view of the case has been approved by the
Appellate Division in Civil Petition No.2805 of 2017 by order dated
06.12.2020 dismissing the leave petition. Since it is approved by the
Apex Court, no question of primacy or supremacy of the two organs of
the State makes any confrontation with regard to the appointment of
Judges of both the Divisions of the Supreme Court of Bangladesh.
Since both the organs are highly correlated there is no scope for any
conflict. If there is any difference of opinion, it can be mutually solved
quite easily without raising any issue in public. Here it is needed to be
said that unless the law is enacted by the Parliament for appointment
of Judges in the higher judiciary, the process of initiating the
appointment of a Judge under Articles 95 and 98 of the Constitution
should be done by direct effectuation. In the history of judiciary of
Bangladesh from 1972 till date this conflict was raised numerously. No
solution has yet been found.
From the experience, it is often heard that the Chief Justice gave
recommendations for the position of the Judges but subsequently he
withdrew those recommendations without any reasons to be recorded.
It is also evident that there were instances when the Chief Justice gave
recommendations for the appointment of Judges which was duly
hounored by the appropriate Appointing Authority, however,
subsequently no oath had taken place by the same Chief Justice. There
is no logical reason for such occurrences to happen. However, selection
by the Chief Justice which means recommendation and final decision
=143=
by the appropriate Appointing Authority needs to occur directly if
there is any adverse antecedent to any candidate. Such matters can be
resolved prior to giving any appointment by the appropriate
authorities concerned.
During hearing of this appeal, we have perused a file placed by
the learned Attorney General in a chamber exclusively wherefrom we
did not find any adverse antecedent of the appellant. Rather we found
that the appropriate Appointing Authority did not give him
appointment as permanent Judge together with five other Judges. As
per Article 48(3) of the Constitution, there is no scope to raise any
question whether any, and if so, what advice has been tendered by the
Hon’ble Prime Minister to the Hon’ble President to be enquired into in
any court. Here the empowerment of the court is not enforceable to
direct the authority concerned to execute any order of this court.
Rather the compassion of the appropriate authority may give rise to
the appointment of the appellant. According to the aforementioned
discussions and in the light of observations made in the case of
Bangladesh and others-Vs-Md. Idrisur Rahman, Advocate and
others reported in 29BLD(AD)79, the writ of mandamus sought by
the appellant can be sustained.
During hearing, the submission of the respondent as to the
appellant’s eligibility under Article 95(2)(a) of our Constitution has
been brought into question. It is doubtful whether the respondents
have any legal scope to question the eligibility of the appellant under
=144=
Article 95(2)(a) of the Constitution. Inasmuch as there is nothing about
this in the respondent’s concise statement, however, Order XIX, Rule 3
of the Appellate Division Rules provides that:
“3. No party to an appeal shall be entitled to be heard by the
court unless he has previously lodged his concise statements.”
From the above Rule, it follows by implication that the grounds
not taken/pleaded in the concise statement cannot be agitated in the
hearing of the appeal. The concise statement on behalf of respondent
No.01 clearly shows that no such ground was taken therein. However,
since it is raised by the respondent’s submission, let us discuss about
the qualification/eligibility for appointment of a Judge in the High
Court Division of the Supreme Court throughout the Subcontinent.
Article 193(2) of the Islamic Republic of Pakistan Constitution
stipulates that:
“193. (1) A Judge of a High Court shall be appointed by the
President after consultation-
(a) .........................
(b) ..........................
(c) ..........................
(2) A person shall not be appointed a Judge of a High
Court unless he is a citizen of Pakistan, is not less
than [forty-five years] of age, and
(a) he has for a period of, or for periods
aggregating, not less than ten years been an
advocate of a High Court (including a High
Court which existed in Pakistan at any time
=145=
before the commencing day); or
(b) he is, and has for a period of not less than
ten years been, a member of a civil service
prescribed by law for the purposes of this
paragraph, and has, for a period of not less
than three years, served as or exercised the
functions of a District Judge in Pakistan; or
(c) he has, for a period of not less than ten
years, held a judicial office in Pakistan.
[Explanation.-In computing the period during which a
person has been an advocate of a High Court or held
judicial office, there shall be included any period during
which he has held judicial office after he became an
advocate or, as the case may be, the period during which
he has been an advocate after having held judicial office.]
(3) ...................................................”
Pakistan is an Islamic country as per their Constitution. Article
193(2) of the Pakistan Constitution discusses that a person should not
be appointed as a Judge of the High Court unless he is a citizen of
Pakistan, is not less than 45 years of age and he must be an Advocate
for a period aggregating not less than 10 years. This means the total
period of his practice would be counted or he has for a period of not
less than 10 years held a judicial office in Pakistan.
In the Indian Constitution, Article 217(2) the following is
extracted below:
“217. (1) .........................
=146=
Provided that -
(a) .........................
(b) ..........................
(c) ..........................
(2) A person shall not be qualified for appointment as
a Judge of a High Court unless he is a citizen of
India and -
(a) has for at least ten years held a judicial
office in the territory of India; or
(b) has for at least ten years been an advocate
of a High Court[* * *] or of two or more such
Courts in succession;
(c) [* * *]
Explanation.-For the purposes of this clause-
(a)
(aa)
(b)
(3) ...................................................”
From the said Article, it is disclosed that the qualification for
appointment as a Judge of the High Court should be a citizen of India
and at least held a judicial office for a period of 10 years in the territory
of India. Or the candidate must have been an Advocate of a High
Court for 10 years or of two or more such courts in succession. Hence
there is no question of aggregation in the Constitution of India.
Article 95(2)(a) of our Constitution provides that “95(2)(a) a
person should not be qualified for appointment as a judge unless he is a
=147=
citizen of Bangladesh and- (a) has, for not less than 10 years been an
Advocate of the Supreme Court.”
It is cardinal principle of interpretation that the words of a
statute must not be overruled by the Judges, but reform of the law
must be left in the hand of the Parliament. Application of this principle
can be used in the interpretation of Constitution since Constitution is
the highest law of the country and the words used in the constitution
can never be changed or altered.
Definition in section 3(2a) of the General Clauses Act, 1897 has to
be applied for the reason that Article 152(2) of the Constitution
provides-
“(2) The General Clauses Act, 1897 shall apply in
relation to-
(a) this Constitution as it applies in relation to an
Act of Parliament;”
Section 3(2a) of the General Clauses Act, 1897 contemplates-
“(2a) “Advocate” means a person enrolled as such
under the Bangladesh Legal Practitioners and Bar
Council Order, 1972 (P.O. No.46 of 1972)”
Definition of “Advocate”-
Article 2(a) of The Bangladesh Legal Practitioners and Bar
Council Order, 1972 [P.O. No.46 of 1972] defines-
“2.(a) “advocate” means an advocate entered in the roll
under the provisions of this Order;”
“Roll” of the Advocate is defined-
“2.(h) “roll” means the roll of advocates prepared and
maintained by the Bar Council;”
=148=
To construe the word “Advocate” employed in Article 95(2)(a) of
the Constitution.
The words in Article 95(2)(a) of the Constitution are-
“been an Advocate”.
The word “practicing” has not been mentioned anywhere in this
Article. According to accepted principles and rules of interpretation, it
cannot be presumed that the word “Advocate” as used in the
Constitution meant “Practicing Advocate.” To read the word
“practicing” before the word “Advocate” in Article 95(2)(a) would
mean adding something to the Constitution that is not already there
and would amount to replacing the wisdom of the Constitution’s
framers, who were elected leaders of our War of Liberation in our
nation with our own wisdom. This is completely unacceptable.
This argument finds support from the case of Mahesh Chandra
Gupta-Vs-Union of India, (2009) 8 SCC 273, the Indian Supreme
Court shown as follows-
“38. Whether “actual practise” as against “right to practice” is
the “practice” is the prerequisite constitutional requirement
of the eligibility criteria under Article 217(2)(b) is the question
which we are required to answer in this case.
50. Before concluding on this point, we may state that the
word “standing” connotes the years in which a person is
entitled to practise and not the actual years put in by a
person in practice. [See Halsbury’s Laws of England, 4th
Edn. Reissue, Vol.3(1), Paras 351 and 394 of the Chapter
under the heading “Barristers”]. Under Section 220(3)(a) of
the Government of India Act, 1935, qualifications were
=149=
prescribed for appointment as a Judge of a High Court. A
barrister of at least ten years’ standing was qualified to be
appointed as a Judge of the High Court. As stated above,
the word “standing” connotes the years in which a person is
entitled to practise, not the actual years put in by that
person in practise.
52. The said expression was placed in the Constitution at a
time when the practice of advocates was governed by the
Indian Bar Councils Act, 1926. Section 2(4)(a) of that Act
defined an “advocate” to mean “an advocate entered in the
roll of advocates of a High Court under the provisions of this
Act. Section 8 provided that:
“8. Enrolment of advocate.-(1). No person shall be
entitled as of right to practise in any High Court,
unless his name is entered in the roll of the
advocates of the High Court maintained under this
Act.”
66. Thus, it becomes clear from the legal history of the 1879
Act, the 1926 Act and the 1961 Act that they all deal with a
person’s right to practise or entitlement to practise. The
1961 Act only seeks to create a common Bar consisting of
one class of members, namely, advocates. Therefore, in our
view, the said expression “an advocate of a High Court” as
understood, both, pre and post 1961, referred to person(s)
right to practise. Therefore, actual practise cannot be read
into the qualification provision, namely, Article 217(2)(b).
The legal implication of the 1961 Act is that any person
whose name is enrolled on the State Bar Council would be
regarded as “an advocate of the High Court”. The substance
of Article 217(2)(b) is that it prescribes an eligibility criteria
=150=
based on “right to practise” and not actual practice.”
Relying on Mahesh Chandra Gupta-Vs-Union of India, (2009) 8
SCC 273, the Delhi High Court in DK Sharma-Vs-Union of India,
shown as follows-
“9. The Supreme Court elaborately dealt with the aforesaid
contention and has held that “entitlement to practice” is
sufficient to meet the requirements of Article 217(2)(b). The
Supreme Court has made specific reference to the difference
in language of clauses 1 and 2 to Article 217. It has been held
that Article 217(1) has a clause relating to “suitability” or
“merits”, whereas Article 217(2) has a clause relating to
“eligibility requirements or qualification” and does not deal
with “suitability” or “merits”. The provisions of the
Advocates Act, 1952, etc, entitle a person to practise in any
High Court and for purpose mere enrolment is sufficient.”
The respondent’s reliance in this regard on Al-Jehad Trust-Vs-
Federation of Pakistan, PLD 1996 SC 324 is untenable. As Article
193(2)(a) of Pakistan’s Constitution, 1973 in employing the word
“aggregating” by implication connotes the actual length of practice
which is not in our Constitution and Indian Constitution.
The appellant’s permission to practice in the Supreme Court was
not suspended or kept in abeyance during that time, which is
sometimes done under the provisions of Articles 3, 2(g) of The
Bangladesh Legal Practitioners and Bar Council Order, so to subtract
the time spent to be a Barrister from the period from permission to
=151=
practice in the High Court Division on 18.06.2000 to appointment as an
Additional Judge on 13.06.2012 is utterly misguided.
Unexpectedly, the respondent claimed that it was unclear
whether the Chief Justice had issued any recommendation. This
submission is to be rejected outright because there is no such
contention in the concise statement, it appears from the leave granting
order that the learned Attorney General[late] did not make any
submission questioning the recommendation, and there was a specific
averment regarding the recommendation in paragraphs 8, 9 and 10 of
the writ petition [pp.36-40], and it has already been submitted for the
appellant that the same person recommending the appellant presided
over the Court while granting leave.
Furthermore, the learned Additional Attorney General argued
emphatically and frequently that the judges engaged in the matter of
the 10 Judges’ Case received widespread press coverage for the Chief
Justice's recommendations, despite the fact that they were not named
as permanent judges. According to the writ petitioner's Annexure-F
series (pp. 81–85), it is clear that the Hon’ble Chief Justice offered
recommendations about the appellant and five other Additional
Judges in this matter as well. Last but not least, the Chief Justice who
recommended the appellant sat over the Bench granted leave in this
instance. Therefore, it is clear that a suggestion was made. If such were
the case, leave could not be given.
=152=
The outcome of the current appeal will have a significant impact
on the rule of law and the independence of the judiciary, which are the
two fundamental structural pillars of our Constitution and our
constitutional system, respectively. In light of this, the appellant
respectfully argued that this appeal merits being allowed to achieve
the greater goal of ensuring rule of law and independence of judiciary.
In the case of Bangladesh and others-Vs-Idrisur Rahman, 29
BLD (AD) 79 widely known as ten Judges’ Case, where it was held
that:-
“The process by which Judges are appointed is therefore key to
both the reality and the perception of independence. The whole
scheme is to shut the doors of interference against executive
under lock and key and therefore prudence demands that such
key should not be left in possession of the executive.”
The appellant obtained first class in the examination of Masters’
of Law from the University of Rajshahi and was admitted to the bar on
December 6, 1998, was given permission to practice law in the High
Court Division on June 18, 2000, and was admitted to the Supreme
Court of Bangladesh’s Appellate Division on May 18, 2011. It is also
clear from the record that on April 20, 2009, the appellant was
appointed as Bangladesh’s Assistant Attorney General during the
current government regime. On 3 November 2010, he was promoted
to the position of Deputy Attorney General for Bangladesh as a result
of his improved performance as an Assistant Attorney General. He
was raised to the High Court Division as an Additional Judge together
=153=
with 5 others by a notification dated 13.06.2012, and he took the oath
of office on 14.06.2012, while holding the position of Deputy Attorney
General. During the Regime of present Government, no question of
any eligibility or on the period of practice was raised. According to the
documents submitted before the Court that the appellant believes in
the spirit of the war of liberation.
The above disclosure finds exact support from the case of
Raghib Rauf Chowdhury-Vs-Bangladesh, reported in 69 DLR,317
where it was held in Paras: 54 and 54(a) that:-
“In view of the deliberation made herein above and to respond to
the public aspiration the existing selection process could be made
more effective, improved, transparent and realistic by taking the
following matters into account as ‘eligibility criteria’, if
considered appropriate and rational by the Honourable Chief
Justice before he moves on to recommend a person or the pool of
persons for appointment as Judge or Judges of the High Court
Division, having regards to the provisions envisaged in Article
95(2) of our Constitution:
(a) a person, a citizen of Bangladesh having
sincere allegiance to the fundamental
principles of the State Policy, i.e., nationalism,
socialism, democracy and secularism as
mentioned in Article 8 of the Constitution and
also the spirit of the war of liberation through
which the nation achieved its independence in
1971. A person should not be recommended
for appointment if his antecedent does not
appear balanced with the above principles and
=154=
the spirit;”
It is evident that non-appointment of the appellant as permanent
Judge took place on 09.06.2014. In the meantime, long time he passed
with the agony of question of eligibility as a Judge. And his other
qualifications find support from the case of Raghib Rauf Chowdhury-
Vs-Bangladesh. Under such circumstances, the appropriate
appointing Authority may reconsider the case of the appellant,
A.B.M.Altaf Hossain to be appointed as permanent Judge in the High
Court Division in the light of above observations.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is hereby
disposed of on the ground that the petitioner has become under the
age of 67 set out in our Constitution.
No order in respect of Civil Petition for Leave to Appeal No.2680
of 2014 as it has been abated at the death of the sole petitioner.
J.
COURT’S ORDER
We, therefore, sum up as under:
(a) The Chief Justice of Bangladesh in exercise of his
functions as consultee shall take aid from the other
senior Judges of the Supreme Court at least with two
senior most Judges of the Supreme Court before
giving his opinion or recommendation in the form of
consultation to the President.
=155=
(b) In the light of the observations made in S.P. Gupta,
Ten Judges’ cases, and the article mentioned in
paragraph-17, it is evident that in case of
appointment of a Judge of the Supreme Court under
Articles 95 and 98 of the Constitution the opinion of
the Chief Justice regarding legal acumen and
professional suitability of a person is to be
considered while the opinion of the Prime Minister
regarding the antecedents of a person is also to be
considered. If divergent opinions from either side of
the two functionaries of the state occur the President
is not empowered to appoint that person as Judge.
The opinion of any functionary will not get primacy
over the others.
(c). If any bad antecedent or disqualification is found
against any Additional Judge, who is under
consideration of the Chief Justice to be recommended
for appointment under the provision of Article 95 of
the Constitution, it is obligatory for the executive to
bring the matter to the notice of the Chief Justice
prior to the consultation process starts.
(d). After recommendation is made by the Chief Justice
to the President, even if, at that stage it is revealed
that antecedent of any recommended candidate is
not conducive to appoint him as a Judge under
Article 95 of the Constitution, it shall be obligatory
for the executive to send the file of that Additional
Judge or the person, back to the Chief Justice for his
knowledge, so that the Chief Justice can review his
earlier recommendation regarding the such
candidate.
=156=
(e). If the Chief Justice again (2nd time) recommends the
same Judge/person for appointment under Article
95, whose antecedent has been placed before him for
reconsideration, this Court expects that, the
President of the Republic would show due respect to
the latest opinion of the Chief Justice.
[
[ With the above observations, the Civil Appeal No. 232 of 2014
and Civil Petition for Leave to Appeal No. 602 of 2017 are
disposed of.
The Writ Petition No. 7489 of 2014 filed by the appellant
A.B.M.Altaf Hossain and Writ Petition No. 1948 of 2017 filed by
the petitioner Md. Farid Ahmed Shibli were maintainable (by
majority view).
The concerned authority may consider the case of the appellant
A.B.M. Altaf Hossain.
No order in respect of Civil Petition for Leave to Appeal No.
2680 of 2014 as it has been abated at the death of the sole
petitioner.
J.
J.
J.
J.
J.
J.
J.
The 14thday of June, 2023
RRO; Total words 39,055
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS. 454-455 OF 2017
(From the judgment and order dated 16.08.2016, passed by a Special Bench of the High
Court Division in Review Petition No.19 of 2015)
Government of Bangladesh and others. Appellants.
(In C. A. No.454 of 2017 )
Bangladesh Environmental Lawyers
Association (BELA) and others.
Appellants.
(In C. A. No.455 of 2017 )
-Versus-
The Managing Director, Ashiyan City
Development Limited and others.
Respondents.
(In both the cases)
For the Appellants :
(In C. A. No. 454 of 2017) Mr. Sk. Md. Morshed, Additional Attorney General
with Mr. Mohammad Saiful Alam, Assistant
Attorney General and Mr. Sayem Mohammad
Murad, Assistant Attorney General instructed by
Mr. Haridas Paul, Advocate-on-Record.
For the Appellants :
(In C. A. No. 455 of 2017) Mr. Fida M. Kamal, Senior Advocate with Mr.
Probir Neogi, Senior Advocate and Mr. Minhajul
Hoque Chowdhury, Advocate instructed by Mr.
Zainul Abedin, Advocate-on-Record.
For Respondent No.1 :
(In both the cases) Mr. Ahsanul Karim, Senior Advocate with Mr. M.
Qumrul Hoque Siddique, Senior Advocate and Mr.
Raghib Rouf Chowdhury, Advocate instructed by
Mr. Bivash Chandra Biswas, Advocate-on-Record.
For Respondent No. 11 :
(In C. A. No. 454 of 2017) Mr. B. M. Elias, Advocate instructed by Mr.
Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No. 10 :
(In C. A. No. 454 of 2017) Mr. Md. Imam Hasan, Advocate instructed by Mr.
Md. Shafiqul Islam Chowdhury, Advocate-on-
Record.
Respondent Nos. 2-9 :
(In C. A. No. 454 of 2017)
Not represented.
For Respondent Nos.12-14 :
(In C. A. No. 455 of 2017) Mr. Nurul Amin, Senior Advocate instructed by Mr.
Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No.15 :
(In C. A. No. 455 of 2017) Mr. B. M. Elias, Advocate instructed by
Mr. Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No.7 :
(In C. A. No. 454 of 2017) Mr. Md. Imam Hasan, Advocate instructed by
Mr. Md. Shafiqul Islam Chowdhury,
Advocate-on-Record.
2
Respondent Nos. 2-6 and
8-10 :
(In C. A. No. 455 of 2017)
Mr. Sk. Md. Morshed, Additional Attorney General
with Mr. Mohammad Saiful Alam, Assistant
Attorney General and Mr. Sayem Mohammad
Murad, Assistant Attorney General (appeared with
the leave of the Court)
Respondent No.11 :
(In C. A. No. 455 of 2017) Not represented
Date of hearing: The 31st day of October and
2nd & 7th day of November, 2023
Date of judgment : The 22nd day of November, 2023
JUDGMENT
M. Enayetur Rahim, J: These civil appeals, by leave, are
directed against the judgement and order dated 16.08.2016
passed by a Special Bench of the High Court Division in
Review Petition No.19 of 2015 allowing the Review Petition
and thereby reversing the judgement and order dated 16
January, 2014 passed in Writ Petition No.17182 of 2012
discharging the Rule.
Since both the civil appeals have arisen out of the same
judgment, those are heard together and dealt with by this
single judgment.
The facts relevant for disposal of the appeals are as
follows:
The appellants in Civil appeal No.455 of 2017 and the
Institute of Architects Bangladesh (IAB)-respondent No.11
herein, filed Writ Petition No.17182 of 2012 against the
present respondents and appellants of C.A. No.454 of 2017
challenging the order/clearances/approvals given vide Memo
No. ¯§viK bs- cwi‡ek/Xvwe/11284/XvKv/ jvj/ Qvo-73, dated 24.12.2009; memo No.
pobomo/pribesh-3/2/DoE Appeal-56/2011/133 dated 14.02.2012;
memo No. 30.26.95.4.11284.180906/nabayan dated 21 June 2012
3
and memo No. Prosha-6/raj-04/2011/581/1(2)dated 2 October
2012.
In the writ petition it is contended that Ashiyan City
Development Ltd., the review petitioner-respondent No.1
herein, (herein after referred to as respondent No. 1) is a
land development company, responsible for unplanned and
unauthorized creation of townships by filling up farmlands
and low lying marshy and wetlands in and around Dhaka City,
thereby endangering the environment by taking advantage of
the reluctance of law enforcement agencies and other public
authorities. Respondent No. 1 had grabbed land in the Mouzas
of Uttar Khan, Dakkhin Khan, Barua and Bauthar, filled earth
in wetlands and was selling plots in its unauthorized Ashiyan
City project without requisite approval under Rules for
Developing Land in Private Residential Projects, 2004 (herein
after referred to as Rules, 2004) from Rajdhani Unnayan
Kartripakkha (RAJUK). Though RAJUK and the Director General
of the Department of Environment initially moved against such
unauthorized land filling and selling plots, but subsequently
authorized the said project by the impugned memos dated
21.06.2012 and 02.10.2012 for reasons best known to them.
Earlier, by the impugned memo dated 24.12.2009, the
Director General of the Department of Environment granted a
conditional site clearance for one year in favour of the
respondent No. 1 for 55.6 acres of land although there was no
RAJUK approved plan for the project or a "No-objection"
certificate from Deputy Commissioner of Dhaka with regard to
ownership of the project land, both of which were
preconditions for such site clearance. An inquiry by the
Director General of the Department of Environment revealed
4
that the review petitioner was planning to fill up 6000
bighas of land.
The writ petitioners also contended that such holding of
land by respondent No. 1 violated the ceiling of land holding
under the Bangladesh Land Holding Limitation Order, 1972. The
Director (Enforcement and Monitoring) of the Department of
Environment, fined respondent No.1 an amount of Tk.
50,00,000.00 (Taka fifty lac only) by memo dated 16.11.2011
for violating the provisions of Environment Conservations
Act, 1995 and this fine was reduced on appeal by the
respondent No.1 to the Ministry of Environments and Forest to
Tk. 5,00,000.00 (Taka five lakh only) by an order dated
14.02.2012.
Upon preliminary hearing of the writ petition, a Division
Bench of the High Court Division by its order dated
02.01.2013 issued Rule Nisi in the terms prayed. The
respondent No.1 contested the Rule by filing affidavit in
opposition and two supplementary affidavits denying and
controverting all material allegations as contained in the
writ petition.
The essential case of the respondent No.1 as averred in
its affidavit in opposition and supplementary affidavits is
that the lands on which it had undertaken its project did not
contain any wetlands within the meaning of Act No. 36 of
2000. The entire land fell within the area earmarked for
development of residential/residential-cum-commercial zone in
the Master Plan and Detailed Area Plan, as published by the
Government/RAJUK vide memos dated 04.08.1997, 12.03.2006 and
22.06.2010.
The respondent No.1 was accorded registration as sponsor
of private housing project under Rule 3 of the Rules, 2004 by
5
RAJUK, by memo dated 2006 and such registration was renewed
up to 30.06.2017 by memo dated 09.07.2012.
On 14.11.2010, the respondent No.1 applied for approval
of Ashiyan City Project, Phase 1 measuring 43.11 acres. This
was forwarded by RAJUK by memo dated 24.07.2011 to the
Ministry of Housing and Public Works with recommendation for
necessary action under the Rules, 2004 by a memo dated
02.10.2012, incorporating the minutes of a meeting on
25.09.2012 presided over by the Minister, the respondent No.1
was informed of approval of its projects along with housing
projects of other companies. Final approval was granted by
RAJUK, memo dated 04.10.2012. On the issue of land holding,
the respondent No.1 stated that Schedule 3 of the Rules, 2004
grants approval for developing various slabs of land in
excess of 100 bighas for developing private housing projects.
By a letter dated 21.06.2010, the respondent No.1 applied to
the Ministry of Land for approval of the project. By memo
dated 17.07.2011, Ministry directed the Deputy Commissioner
for a report, the Deputy Commissioner by memo dated
19.01.2012 recommend approval. By memo dated 06.02.2012, the
Ministry of Land gave clearance to the project. The
Department of Environment granted site clearance by memo
dated 24.12.2009, which was extended by memo dated 21.06.2012
up to 23.12.2012. By memo dated 30.12.2012, the Department
granted approval of the Environment Impact Assessment of the
review petitioner.
The respondent No.1 also annexed further documents to
bring on record the approval of other authorities, including
utilities such as Dhaka Electric Supply Company, Dhaka Water
Supply and Sewerage Authority, Bangladesh Telegraph and
Telephone Board and Titas Gas as well as the Fire Service and
6
Civil Defence, Dhaka Transport Coordination Board, Dhaka
Metropolitan Police and Water Development Board. The
respondent No.1 also brought on record documents to show
allotment of land to various utilities and the police
authorities. The Dhaka City Corporation also confirmed that
since the area of the project fell outside its territory, its
approval was not required.
The Rule was finally heard by a Special Bench of the High
Court Division, and the Rule was made absolute by a majority
judgement delivered on 16.01.2014. The premise on which the
Rule was made absolute was that the respondent No.1 had been
given approval with respect to 43.11 acres or 130.64 bighas
of land for its project which exceeded the maximum limit of
land property which can be held by a person/ entity under
Section 3 of the Bangladesh Land Holding (Limitation) Order
1972, being 100 bighas, and the maximum limit of area on
which a housing project can be made under Rule 8(1) of the
Private Residential Project Land Development Rules, 2004
being 33 acres of land.
However, after conclusion of the hearing of the above
writ petition, but before the delivery of the judgement, the
respondent No.1 applied to the Deputy Commissioner, Dhaka by
an application submitted on 07.01.2014 seeking permission for
development of its project on 1197.00 acres of land,
including 43.11 acres of land in the first phase, as it
exceeded the 33 acres limit. Such approval was sought under
Section 20 read with 90(3) of the State Acquisition and
Tenancy Act, 1950, Rule 8(1) of the Rules, 2004 and Section
4(d) of the Bangladesh Land Holding (Limitation) Order, 1972
(P.O.98 of 1972). Upon receipt of the application, the Deputy
Commissioner, Dhaka, by memo dated 16.01.2014, accorded such
7
permission with respect to 1197 acres of land. Other
developers, being East West Property (Pvt.) Ltd., Swadesh
Properties Ltd. (for two projects) and Neptune Land
Development Ltd. have, against applications dated 19.01.2014,
17.02.2014, 30.03.2014 and 26.04.2014, obtained approvals for
projects having more than 33 acres of land from the Deputy
Commissioner, Dhaka by memos dated 26.02.2014, 27.04.2014,
09.06.2014 and 26.04.2014. The respondent No.1 also submits
that the writ petitioners did not file any public interest
litigation against any other developers similarly placed as
this respondent No.1.
Since the approval dated 16.01.2014 being given to the
respondent No.1 on the same date as the judgement and order
passed in the above writ petition, the respondent No.1 could
not reasonably bring it to the notice of the High Court
Division. Further, until the respondent No.1 obtained the
certified copy of the judgement and order dated 16.01.2014,
the respondent No.1 could not consult with its lawyers and
take advice as to whether the said approval dated 16.01.2014
could give reason to file a review petition.
The appellants in Civil Appeal No. 455 of 2017 and the
Institute of Architects Bangladesh (IAB) as respondents
entered appearance in the review petition by filing affidavit
in opposition.
The learned Advocate appearing on behalf of the
Secretary, Ministry of Land made oral submissions at the time
of hearing of the Rule and the learned Deputy Attorneys
General appeared for the Secretary, Ministry of Environment
and Forest, the Secretary, Ministry of Information, and the
Director General, Department of Environment, respondent Nos.
8
11, 13 and 15 respectively and made oral submission at the
hearing of the Rule.
The case of review respondent Nos.l to 8 (writ
petitioners), in short is that a review petition can only be
filed on discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
the knowledge or could not be produced by the petitioner; the
statements made in paragraph 9 of the petition clearly show
that there was neither any such discovery nor has any new
matter or evidence been collected after the judgement was
pronounced on 16.01.2014. Instead the undated application of
Ashiyan Land Development Ltd. was received by the office of
Deputy Commissioner on 07.01.2014 when the Writ Petition was
pending and injunction in force, and land holding being a
major contentious issue of the writ petition, the same could
and should have been brought to the notice of the High Court
Division by the respondent No.1 either through filing of an
application or at least orally mentioned before that Court
when the matter was taken up for pronouncement of judgement
on 16.01.2014. While the undated application of Ashiyan Land
Development Ltd. mentions a new quantum of land, i.e. 1197
acres that varies substantially from the earlier
contradictory claims of the review petitioner about ownership
of land, the same substantiates the assertion of the writ
petitioners about grabbing of lands by Ashiyan Land
Development Ltd. The quantum of land mentioned in the
application being much above the legal ceiling of land
holdings and contrary to the land quantum mentioned during
the course of hearing, the said application is nothing but a
deliberate, clever and mala fide attempt to legalize land
9
grabbing by Ashiyan Land Development Ltd. and frustrate and
undermine the judgement.
It is further contended by the review respondents that in
the said application the respondent No.1 deliberately did not
disclose the pendency of the litigation and the Deputy
Commissioner, as a co-respondent, did not apply his mind in
according the so-called permission behind the back, as such
administrative sanction in a sub judice matter while an
injunction in force against the project cannot be given
except for the evil purpose of affecting the substratum of
the litigation. The so-called permission accorded by the
Deputy Commissioner on 16.01.2014 with respect to 1197 acres
of land is bad in the eye of law as none of the three laws
relied on in the application allow any such authorisation by
the Deputy Commissioner, nor does the permission refer to any
other legal premise on the basis of which such permission has
been accorded.
In view of the existing legal context and the judgement of
the Appellate Division, the so-called permission of Deputy
Commissioner having no legal sanction should be rejected as a
ground for the Review Petition. The petitioner of the Review
Petition and the Deputy Commissioner, Dhaka both being
respondents in the Writ Petition and having contested the
Rule should have mentioned the fact of filing of the
application in the sub-judice matter where an order of
injunction was still in force at the relevant time. The fact
that both the parties deliberately omitted to mention this
aspect of the case and have come forward with the Review
Petition with a permission claimed to have been given just on
the day of the judgement strongly suggests unholy cohesion
10
between the two respondents-parties in the writ petition. The
so-called permission, being a product of dubious and
collusive actions, should be rejected outright and dealt with
sternly as the same is sought to be used so as to over-reach
the judgement and order dated 16.01.2014 and/or to frustrate
the effect of the said judgement and order.
It was also stated that the permissions in favour of other
developers as mentioned in paragraph 11 of the Review
Petition were all accorded subsequent to the permission
letter issued in favour of Ashiyan Land Development Ltd.
A Special Bench of the High Court Division after hearing
the review application by its judgment and order allowed the
same and set aside the judgment and order dated 16.01.2014
passed in Writ Petition No. 17182 of 2012.
Being aggrieved and dissatisfied with the said judgment
and order the appellants (C.A. No. 455 of 2017) filed Civil
Petition for Leave to Appeal No. 2789 of 2017. The Government
also filed Civil Petition for Leave to Appeal No. 2669 of
2017 and accordingly leave was granted on 07.08.2017. Hence,
the present appeals.
Mr. Sk. Md. Morshed, learned Additional Attorney
General with Mr. Mohammad Saiful Alam, and Mr. Sayem Mohammad
Murad, Assistant Attorney General(s) have appeared on behalf
of the appellants in Civil Appeal No.454 of 2017, and Mr.
Fida M. Kamal, learned Senior Advocate with Mr. Probir Neogi,
learned Senior Advocate and Mr. Minhajul Hoque Chowdhury,
learned Advocate have appeared for the appellants in Civil
Appeal No.455 of 2017.
11
The main contentions of the learned Advocates for the
appellants in both the appeals are as follows:
i) the High Court Division in granting review and by
setting aside the earlier judgement and order dated 16
January, 2014, has committed serious error of law by
failing to appreciate that the grounds taken in the
Review Petition did not attract section 114 and Order
XLVII rule 1 of the Code of Civil Procedure; the
materials produced were duly considered and recorded
during the hearing of the writ petition, and hence could
not be revisited by way of re-hearing; there was no
error on the face of the record; if the conclusions
reached by the judgement dated 16 January, 2014 were
considered erroneous, then the same should have been
challenged by filing an appeal (as a follow up of C.M.P
09 of 2014) and not by way of review;
ii) the review was erroneously granted by the High Court
Division although there was no discovery of new and
important matters of evidence, which after the exercise
of due diligence, was not within the knowledge or could
not be produced by the review petitioner, inasmuch as
the so-called permission of the office of the Deputy
Commissioner dated 16.01.2014 was given on an
application of the review petitioner made prior to the
pronouncement of the judgment in the writ petition but
deliberately not disclosed before the Court;
iii) the High Court Division failed to appreciate that
without filing appeal against the judgment, review
petition was filed with the mischievous intention to
take undue advantage of the split judgment and that
12
granting of review on legally untenable grounds is
clearly erroneous. The High Court Division failed to
appreciate that the review petition was mala fide
inasmuch as the same has been filed relying on the so-
called “No-objection" letter of the Deputy Commissioner
which clearly is a result of dubious and collusive
action between him and the Review Petitioner and was
obtained just on the day of the judgement simply to
over-reach the judgement and order dated 16 January,
2014 and/or to frustrate the effect of the said
judgement and order;
iv) the High Court Division, by allowing condonation of
delay, has fallen into error as the same is contrary to
the provisions of the Limitation Act, 1908;
v) in setting aside of the impugned Memos Annexures ‘C’,
‘H’, ‘K’ and ‘M’ by the judgement dated 16.01.2014 on
findings of cogent grounds in the facts and
circumstances of the case, appear to have been negated
in review by the impugned judgement dated 16.08.2016
without any discussion and/or reference to the said
Memos;
vi) the High Court Division failed to appreciate that
the project of respondent No. 10 was being implemented
in violation of the mandatory legal provisions of the
Town Improvement Act, 1953 (E.B. Act No. XIII of 1953);
the Bangladesh Environment Conservation Act, 1995 (Act
No. 1 of 1995) and the Environment Conservation Rules,
1997 made thereunder; “gnvbMix, wefvMxq kni I †Rjv kn‡ii †cŠi GjvKvmn †`‡ki
mKj †cŠi GjvKvi †Ljvi gvV, Db¥y³ ¯’vb, D`¨vb Ges cªvK…wZK Rivavi msiÿY AvBb, 2000 (Act
No. XXXVI of 2000); †emiKvwi AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004; The
13
State Acquisition and Tenancy Act, 1950, the Bangladesh
Land Holding Limitation Order, 1972, and the judgment of
the Supreme Court as reported in 65 DLR (AD)181;
vii) the impugned judgment shall legalize the irregular
and unlawful approvals/ permissions given by respondents
No.6 and 7, encourage indiscriminate and unauthorized
filling up of wetlands, defend landlordism and land
grabbing, jeopardize the land rights of the genuine land
owners and make a real mockery of laws relating
environment, town planning and land administration.
Per contra, Mr. Ahsanul Karim, learned Senior Advocate
with Mr. M. Qumrul Hoque Siddique, learned Senior Advocate
appearing for respondent No. 1 in both the appeals made
submissions in support of the impugned judgement and order of
the High Court Division. The main contentions are as follows:
i) the review is maintainable because the approval of
Deputy Commissioner was not on the record which was the
only decisive issue context and determining factor by
the majority judges for making the Rule absolute and
which the respondent No. 1 could not produce at the time
when the judgment was pronounced, although the said
approval was in fact in existence as on the day when the
judgment was pronounced;
ii) a review is competent when an important
document/matter could not be produced at the time when
the judgment has been pronounced or there is some other
sufficient reason for review; when the judgment was
pronounced the approval was available but the respondent
No. 1 could not produce it despite exercising due
diligence. This is what is termed as a sufficient reason
14
to invoke review jurisdiction within the ambit of Order
XLVII of Code of Civil Procedure;
iii) since the main determining factor striking out of
the impugned Memos were on the rationale that Deputy
Commissioner approval was not on the record, on which
basis the Rule was made absolute which had the
respondent would be able to obtain the approval of
Deputy Commissioner when the judgment was pronounced,
the results would have been different; the respondent
No.1 had the access of the approval of Deputy
Commissioner, as on the date of judgment but was
precluded from producing it for sufficient reason, the
absence of such material document the Rule was made
absolute and the said single document was the decisive
document determining the fate of the respondent No. 1
and, therefore, the said document was the only decisive
factor to maintain the review petition;
iv) the High Court Division upon discovery of new
document allowed the Review and this is precisely what a
Court of law would consider under Order XLVII of Code of
Civil Procedure. In the original judgment, there was no
contrary finding which required to be adverted to. A
review by no means a rehearing of appeal. The finding of
the Court upon discovery of new document is sufficient to
allow the review. The Review judgment required no further
elaboration;
v) the Metro Maker case reported in 65 DLR AD 181 is
distinguishable in the present case; paragraph 146 of the
said judgment enumerates what is "cÖvK…wZK Rjvavi' and the ratio
decidendi in the said case disqualifying a residential
15
area; in Metro Maker case, the relevant documents were
not available but in the given case those documents are
available; in Metro Maker case, the land in question was
within flood zone and semi flood zone; however in the
instant case the entire land in question does not contain
any wet land not to speak of flood zone;
vi) the project lands have been mostly classified as
‘Vita’, ‘boro’, ‘chala’, ‘bari’ and ‘Chala’& ‘nal’ as
printed in City Jarip Khatiyan in between 1997-2004 under
section 144 of SAT Act 1950 and accordingly, there was no
cannel or river or jalashay/Jaladhar in the project land
as per City Jarip Mouza map printed by the competent
authority in between 1997-2004;
vii) a Civil Miscellaneous Petition is not the
continuation of leave petition nor a proceeding of Appeal
under the Constitution and thus mere filing of CMP does
not take away the right of Review;
viii) There was no such injunction restraining the Deputy
Commissioner in granting ‘No-objection’ in respect of the
project and further the order of approval by Deputy
Commissioner is too remote to cover the order of
injunction passed by the High Court Division;
ix) the Government cannot resile from its own order,
sanction or approval. [Ref: 1 BLD (AD) 91; 10 MLR (AD)
23].
x) a Public Interest Litigation is mean to spouse a
cause to benefit the public at large; it cannot be
calculated to vindicate the interest of any particular
sector of any society; it creates a serious doubt and
suspicion in rightful thinking members of society and to
16
the esteem of the rightful thinking members of society
at large; the petitioners are pursuing against certain
cause of a particular developer leaving other developers
irrespective of public and private including Basundhara
Housing (East West Properties Limited), Purbachal
Housing Project, Jalshiri Housing Project, BCS Admin
Housing Society, Police Officers Housing Society,
Judicial Officers Housing Project, Civil Aviation
Residential Zone, Neptune Properties Ltd., Swadesh
Residential Project, Jamuna Builders, Lake City Concord
Banorupa Residential Project, Nasa Group, Pink City,
Sector 4 & 6 of Rajuk Uttara Model Town Project, Haji
Camp; it is really mischievous and suspicious why the
petitioners are after one particular petty developer
which creates serious doubt the action and persuasion of
the petitioner at the behest of other big developers
only to preclude the respondent No. 1 so as to give
better benefit to those big developers so that they can
exercise exclusive monopoly in the respective market and
thus, the writ petitioners are nothing but busy body
exercising unholy game in the name of so called public
Interest Litigation.
We have considered the rival submissions of the learned
Advocates for the parties concerned, perused the impugned
judgments and order of the High Court Division and other
connected papers as placed before us.
In the instant case, the Special Bench of the High Court
Division in deciding the merit of the Rule in writ petition
No.17182 of 2012 making the Rule absolute (by majority view)
observed that the project area is 43.11 acres or 130.64
bighas but the writ respondent No. 10 (present respondent
17
No.1) had got no permission of the Deputy Commissioner as
required for the excess land for the project in question
beyond the limit of 33 acres as provided in Rule 8 (K) of the
‡emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004|
wewa 8 (K) of the ‡emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004 runs as
follows:
""(8) wewa Gi ---
(K) Dc-wewa (1) Gi cwie‡Z© wb¤œiƒc Dc-wewa (1) cÖwZ¯ÍvwcZ nB‡e, h_vt-
""(1) ‡emiKvwi AvevwmK cÖKí MÖn‡bi †ÿ‡œ XvKv DËi wmwU Ki‡cv‡ikb, XvKv `wÿY
wmwU Ki‡cv‡ikb ev †cŠi GjvKvi Af¨šÍ‡i b~¨bZg 5 (cuvP) GKi Ges XvKv DËi wmwU
Ki‡cv‡ikb, XvKv `wÿY wmwU Ki‡cv‡ikb ev †cŠi GjvKvi evwn‡i b~¨bZg 10 (`k) GKi f~wgi
cÖ‡qvRb nB‡e, b~¨bZg AvqZ‡bi cÖK‡íi †ÿ‡Î D‡`¨v³v‡K kZfvM f~wgi gvwjK nB‡Z nB‡i,
m¤úªmvwiZ GjvKvi †ÿ‡Î bZyb GjvKv Ges c~‡e©i (Aby‡gvw`Z) GjvKv mgš^q Kwiqv †j-AvDU
cÖYqb Kwi‡Z nB‡e; State Acquisition and Tenancy Act, 1950
(Act No. XXVIII of 1951)Gi section 20 Ges section 90
Abyhvqx †h †Kvb D‡`¨v³vi cÖK‡íi AvqZb m‡ev©”P 33 (†ZwÎk) GKi nB‡e, Z‡e cÖK‡íi AvqZb
Gi †ekx nB‡j mswkøó †Rjv cÖkvm‡Ki `߇ii AbygwZ MÖnb Kwi‡Z nB‡e| Ó (Underlines
supplied)
The Special Bench of the High Court Division mainly on
the ground of excess land of the project in question, i.e.
total area of project in question is 43.11 acres or 130.64
bighas than the land ceiling of 33 acres, made the Rule
absolute. From the said judgment, it also appears that the
High Court Division declared Annexures-M, C, H, and K to have
been issued without lawful authority and is of no legal
effect.
Annexure-C is the conditional site clearance in favour
of the respondent for 55.6 acres of land issued by the cwi‡ek
Awa`ßi for 1 (one) year; annexure-H is the decision of the cwi‡ek
Awa`ßi deciding to pay Tk. 5 (five) lakh for causing damage,
and direction to the writ respondent No. 7 to dispose of the
application of the present respondent dated 24.11.2020 for
renewal of site clearance; annexure-K is the extension of
18
site clearance and annexure-M is the approval of the RAJUK
for establishing the Ashiyan City Prokalpo first phase.
Though in the writ petition it was contended by the writ
petitioners that if the project is implemented, the
environment will seriously threatened, and that said project
is going on in violation of the law as mentioned earlier. The
High Court Division without giving any findings whether the
project in question is violative of the Town Improvement Act,
1953,(E.B. Act No. XIII of 1953); the Environment
Conservation Act, 1995(Act No. 1 of 1995); the Environment
Conservation Rules 1997; gnvbMix, wefvMxq kn‡ii I †cŠi GjvKvmn †`‡ki mKj †cŠi
GjvKvi †Ljvi gvV, Db¥y³ ¯’vb, D`¨vb Ges cÖvK…wZK Rjvavi msiÿY AvBb, 2000(Act No. XXXVI of
2000); †emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004; the State Acquisition and
Tenancy Act, 1950 made the Rule absolute (majority view). The
Special Bench of the High Court Division mainly on the ground
of excess land which is violative of the Bangladesh Land
Holding Limitation Order 1972 and Rule 8 (Ka) of the ‡emiKvix
AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004 made the Rule absolute.
In review, the Special Bench of the High Court Division
taking into consideration of the new circumstances that on
the day of delivery of judgment the respondent No.1 has got
an approval, i.e. ‘No-objection’ from the office of the
Deputy Commissioner, Dhaka, for development of its project on
1197 acres of land including 43.11 acres of land in the first
phase and, thereby, allowed the review application setting
aside its earlier judgment and order making the Rule
absolute.
It is now the moot question before us whether in the
facts and circumstances of the present case the Special Bench
of the High Court Division committed error in reviewing its
earlier judgment on the basis of alleged ‘No-objection’
19
accorded by the office of the Deputy Commissioner Dhaka
issued on 16.01.2014, i.e. on the day of delivery of judgment
in favour of the respondent No.1, which was neither produced
nor intimated to the Court, when judgment was pronounced.
It is now well settled that judgment passed in a writ
petition can be reviewed although the High Court Rules does
not specifically provide such review and in that event, Code
of Civil Procedure is applicable.
In the case of Moni Begum and others vs. Rajdhani
Unnayan Kartripakha and others, reported in (1994) 46 DLR
(AD)154 this Division found the proceedings in writ
jurisdiction to be civil proceedings, but having regard to
the summary nature of the proceedings held that section 141
of the Code would not in terms apply. This Division has
observed that:
“In our view, the High Court Division while exercising the
writ jurisdiction relating to a civil matter is no doubt in seisin of a
civil proceeding,........”
And
“........the Court in its discretion can apply the principles as
distinguished from the technical provision of the Code of Civil
Procedure to meet the exigencies of the situation in appropriate case
on the ground of justice, equity and good conscience. In what
situation the principles of the Code of Civil Procedure will be applied
and to what extent may perhaps be left to the wise discretion of the
Court itself. In other words, barring what is specifically provided for
in the Rules themselves, the Court is the master of its own procedure
and it will exercise both its procedural and substantive discretions
only on the ground of justice, equity and good conscience.”
And
“Section 141 CPC does not in terms apply to proceedings in
writ. But the Court in its discretion can apply the principles as
distinguished from the technical provisions of the CPC to meet the
exigencies of the situation on the ground of justice, equity and good
conscience.”
20
Let us now look into the provision of Order XLVII rule 1
of the Civil Procedure, which is as follows:
“Application for review of judgment.
1.(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of small causes,
and who, from a discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within his knowledge or could not
be produced by him at the time when the decree was passed or order made,
or on account of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of judgment to the
Court which passed the decree or made the order.”
From the above provision of law, it is abundantly clear
that Court has got the authority to review its judgment or
order, as the case may be under specified conditions; i.e.
i) on discovery of new and important matter or
evidence, which was not known to or could not be
produced by the review petitioner before;
ii) on account of some mistake or error apparent on
the face of the record; or
iii) any other specified reason.
It is now well settled that unless a prayer for review
is based on the grounds mentioned above, the Court will not
sit on the matter again for re-hearing or further hearing,
which is already concluded by the decision. In this
connection we may rely on the cases of Basharatullah, being
dead his heirs: Fazle Karim and others Vs. Government of
Bangladesh and others, reported in 16 BLD (AD)9=48 DLR
(AD)178, in the case of Rahima Akhter and others Vs. Asim
Kumar Bose and others, reported in 40 DLR (AD) 23, in the
21
case of Pradhip Das alias Shambhu and others Vs. Kazal Das
Sarma and others, reported in 44 DLR (AD)1.
In the case of Suja Ud-doula and others vs. Arshad
Hossain Haider and others, reported in 22 BLC (AD) 49 this
Division has observed that review is not re-hearing of an appeal or to give a
defeating party chance to start second innings and the reasons given by a Court is not
relying upon an exhibit in a case do not definitely come within the phraseology, “or on
account of some mistake or error apparent on the face of the record.”
In the case of Nurul Hussain vs. Government of the
People’s Republic of Bangladesh, reported in 49 DLR (AD) 108
this Division has observed that a review was never meant and allowed to be
utilized an another opportunity for re-hearing the matter which is already closed by a final
judgment.
In the case of GM, Postal Insurance and another vs. ABM
Abu Taher, reported in 61 DLR (AD) 97 this Division also held
that a party is not entitled to seek a review of a judgment delivered by the Court merely
for the purpose for re-hearing in a fresh decision of the case, and departure from that
principle is justified only when circumstances of the substantial and compelling character
made it necessary to do so.
In the case of Syed Md. Ismail Vs. Dhaka University and
another, reported in 1 MLR (AD) 425, this Division has
observed that review of judgment can only be made on discovery of important
evidence, which could not be produced before he Court in spite of due diligence and had the
same been produced, the decision of the Court would have been otherwise. In the case
of Islamic Foundation Bangladesh vs. Firoz Alam and others,
reported in 53 DLR (AD) 48 this Division held that in these
circumstances the High Court Division does not appear to have committed any error of law
by not giving a chance to the petitioner to try its luck once again on the plea of discovery of
additional evidence. In the above case, this Division relied on the
22
case of Kessewji Issur vs GIP Ry. Company, 34 IA 115 (PC)
where the Privy Council observed that:
“Now the civil Procedure Code permits such applications for review
on the ground of such discovery, but it exacts very strict conditions so as to
prevent litigants lying on their oars when they ought to be looking for
evidence-it enjoins the Judge to require the facts as to the absence of
negligence to be strictly proved, and it makes the Judge who tried the case
final on such application.”
In the above case, this Division further held that-
“In the instant case, the petitioner alleges that certain letters have
passed between the Foreign Office and the High Commission for Bangladesh
in Karachi after the disposal of the appeal, which disclose that Md. Ismail is
still alive in Karachi. If this be a fact the petitioner could have discovered the
same through correspondences much before the suit came up for hearing in
the trial Court. The non-discovery of the alleged fact that Md. Ismail is still
alive must, therefore, be due to the negligence of the petitioner”.
In the Case of Abu Said Md. Idris Ali Sikder vs
Monoranjan Bagchi, reported in 22 DLR, 214 it has been held
that right of review can be exercised only in case of excusable failure on the part of the
applicant to bring to the notice of the Court new and important matters of error.
Absence of negligence on the part of the applicant is to be strictly proved. [22 DLR,
216 Gulnahar vs. Ramjan Ali]. In the case of Arun Bhowmick vs. Slim Rezd,
reported in 1988 BLD 180 the High Court Division held that the Court
must come to a clear finding that there was discovery of new and important matter which
after exercise of due diligence was not within the knowledge of the petitioner.
Let us now consider the case in hand in view of above
settled propositions of law.
The learned Advocates for the respondents extraneously
argued that the alleged ‘No-objection’ given to the
respondent on the day of delivery of judgment, i.e. on 16
23
January 2004, was not placed or communicated at the time of
pronunciation of the judgment and the Special Bench of the
High Court Division having considered the said fact allowed
the review petition and, thereby, committed no error of law
which can be interfered by this Division and the judgment
passed by the High Court Division is within the very ambit of
Order XLVII rule 1.
A pertinent question is required to be addressed here,
whether the alleged ‘No-objection’ obtained by the respondent
No.1 on the date of delivery of judgment (16.01.2014) which
was neither presented before the Court nor intimated the same
to the Court will come within the meaning of ‘discovery of
new fact or important matter’.
The dictionary (Black’s law, 8th edition; Cambridge and
Oxford Dictionary) meaning of ‘discovery’ is ‘the act of
finding something that had not been known before or something
that one did not know about before.’
Discovery of new and important matter or evidence which
could affect the decision is a ground for review only if it
is shown that even after the exercise of due diligence, it
was not within the knowledge of, or could not be produced by,
the party at the time of passing of the judgment and order.
The alleged ‘No-objection’ in favour of the respondent
Ashiyan City cannot be said as discovery of new fact or
evidence which after due exercise of diligence was not in the
knowledge of the writ petitioner or could not produce by him
when the judgment was delivered; rather considering the
attending facts and circumstances of the present case, in
particular the fact of getting alleged ‘No-objection’ was not
produced/communicated or intimated to the Court during
pronunciation of judgment of the writ petition, and that the
24
review application was filed after a long lapse of time
beyond the limit of prescribed time in law, thus, it is our
considered view that this document (No-objection) is not a
discovery of new fact or evidence rather it is a new document
which the review petitioner-respondent had been able to
manage the same cleverly, despite of the order of injunction
of the High Court Division.
It is pertinent to mention here that hearing of the
Rule was concluded on 03.10.2013, and judgment was awaiting
for pronouncement and eventually, judgment was delivered on
16.01.2014, i.e. after 2 months 16 days and between this
period nothing was intimated to the Court even filing of
application on 07.01.2014 to the Deputy Commissioner for
permission of the project in question.
From the above facts and circumstances, we may
reasonably infer that the alleged ‘No-objection’ is a result
of dubious and collusive action between the office of Deputy
Commissioner, Dhaka and the review petitioner-respondent No.1
and, thus, we are unable to accept the submissions of the
learned Advocates for the review petitioner-respondent No.1
that the review petition was maintainable within the ambit of
Order XLVII rule 1. In view of the above, we have no
hesitation to hold that the Special Bench of the High Court
had committed serious error in entertaining the review
petition and allowing the same.
However, it transpires that from the record that the
Deputy Commission earlier gave ‘No-objection’ in respect of
55.6 acres of land in favour of the review petitioner-
respondent No.1 for its project but it was entitled to retain
only 33 acres of land as per Bangladesh Land Holding
(Limitation) Order 1972 (P.O. 98 of 1972) and ‡emiKvwi AvevwmK f~wg
25
Dbœqb wewagvjv, 2004 at the relevant time. It is evidenced from the
record that respondent No.1 got approval of other
authorities, including utilities such as Dhaka Electric
Supply Company, Dhaka Water Supply and Sewerage Authority,
Bangladesh Telegraph and Telephone Board and Titas Gas as
well as the Fire Service and Civil Defence, Dhaka Transport
Coordination Board, Dhaka Metropolitan Police and Water
Development Board.
Thus, we are of the view that review petitioner-
respondent No.1 is entitled to proceed his project in respect
of 33 acres of land pursuant to the permission dated
25.09.2012 and annexures ‘C’, ‘K’ and ‘M’ will be applicable
only in respect of the said quantum of land and permission of
respective organizations.
With the above observations, the appeals are disposed
of. The judgment passed by the High Court Division in Review
Petition No. 19 of 2015 is set aside.
However, there is no bar to carry of the project on 33
acres of land by the respondent No.1 Ashiyan City.
No order as to costs.
C. J.
J.
J.
J.
J.
B.S./B.R./*Words-7,045*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL PETITION FOR LEAVE TO APPEAL NO.2876 OF 2023
(From the order dated the 30th day of May, 2023 passed by a Division Bench of
the High Court Division in Writ Petition No.10574 of 2022)
Sulaiman Rubel and others : . . . Petitioners
-Versus-
Dr. Kazi Sirajul Islam and others : . . . Respondents
For the Petitioners
: Mr. Sk. Md. Morshed, Senior Advocate
with Mr. Mushtaq Ahmed Chowdhury,
Advocate and Mr. Shah Mohammad
Ezaz Rahman, Advocate instructed by
Mr. Md. Abdul Hye Bhuiyan,
Advocate-on-Record
For Respondent No.1 : Mr. Murad Reza, Senior Advocate
instructed by Ms. Madhu Maloti
Chawdhury Barua, Advocate-on-Record
For Respondent Nos.2-6 : Not represented
Date of Hearing and Judgment : The 27th day of November, 2023
JUDGMENT
M. Enayetur Rahim, J: This civil petition for leave to appeal
is directed against the judgment and order dated
30.05.2023 passed by a Division Bench of the High Court
Division in Writ Petition No.10574 of 2022 making the Rule
absolute. 2
The relevant facts leading to the filing of the
instant civil petition for leave to appeal are as follows:
The present respondent No.3, Islami Bank Bangladesh
Limited instituted Artha Rin Case No.388 of 2019 in the
Court of Artha Rin Adalat, Court No.4, Dhaka against the
present petitioners (mortgagor-defendants) as well as
respondent No.1 (borrower-defendant) for realization of
Tk.4,65,18,699/- (Taka four crore sixty five lacs eighteen
thousand six hundred and ninety nine) as on 14.07.2019.
In the plaint it is categorically stated that the
plaintiff Bank on several occasions gave reminder and
warnings to the defendants for payment of their
outstanding liabilities through official letter and
requested them to take initiative to regularize all their
overdue. However, the defendants were reluctant to adjust
their outstanding dues.
In order to realize outstanding dues the plaintiff
Bank on 06.07.2018 had published auction notice under
section 12(3) of Artha Rin Adalat Ain, 2003 (hereinafter
referred to as ‘the Ain,2003’) in to Daily newspapers,
namely Dainik Bangladesh Protidin and Dainik Ittefaq for
selling the mortgaged property.
However, the Bank did not get any responsible bidder
to sell the property and, that the mortgagors, filed Writ
Petition No.9186 of 2008 challenging the said auction
notice wherein they got an order of stay. Under such
circumstances the plaintiff Bank has compelled to file the
suit. 3
When the suit is at the stage of peremptory hearing,
the Chairman of the borrower Company (defendant no.3)
filed an application before the Artha Rin Adalat to sell
the mortgaged property before proceeding further with the
suit, but the same was rejected by the learned Judge of
Artha Rin Adalat by an order dated 03.08.2012.
Challenging the said order, the borrower defendant
No.3 that is the present respondent No.1 filed Writ
Petition No.10574 of 2022 before the High Court Division
and accordingly a Rule was issued.
A Division Bench of the High Court Division after
hearing the said Rule, made the same absolute making the
following observations and direction:
“They are required to bear in their minds the
principles, which have been laid down
hereinbefore by this Court, and now articulated
in the following manner:
(1) The Banks/Financial Institutions must not
file any Artharin Suit without, at first,
selling or having failed to sell the liened
and/or pledged and/or hypothecated and/or
mortgaged property of both movale and
immovable nature.
(2) Before filing the Artha Rin Suit, the
Banks/Financial Institutions are competent
to put the mortgaged/hypothecated property
more than once, if the 1st auction does not
wield or succeed in providing/getting the 4
expected price or fails for some other
reason.
(3) In a scenario where the Banks/Financial
Institutions despite invoking Section 12(3)
of the Artha Rin Ain, could not attract any
bidder because of filing any case by the
mortgagor or hypothecated goods owner, the
Adalat shall allow the Banks/Financial
Institutions to invoke Section 12(3) of the
Artha Rin Ain afresh treating it as
continuation of the proceeding under Section
12(3) of the Artha Rin Ain commenced
earlier.
(4) The Banks/Financial Institutions shall not
be allowed to put the mortgaged/
hypothecated property on auction after
filing of the Artha Rin Suit if the Court
finds that provision of Section 12(3) of the
Artha Rin Adalat was invoked by the
Banks/Financial Institutions before filing
of the Artha Rin Suit without being
interrupted by the mortgagor.
(5) The Banks/Financial Institutions are
competent to sell the liened and pledged
properties, even after filing the Artha Rin
Suit if they consciously or inadvertently
have not sold the said liened/pledged
properties. 5
Accordingly, the following Orders and Directions
passed:
(1) The Bank (respondent No.2) is directed to
take necessary steps for arranging the
auction to sell the aforesaid mortgaged
property in question in accordance with the
relevant laws within 30(thirty) days from
the date of receipt of this Order.
(2) The Artha Rin Adalat No.1, Dhaka (before
whom the Artha Rin Suit No.388/19,
renumbered as Artha Rin Suit No.367/22, in
now pending) is directed to facilitate the
auction process. Meanwhile (i.e. till
completion of the auction process), the
trial of the Artha Rin Suit No.388/19
(renumbered as Artha Rin Suit No.367/22)
shall be halted and once the auction process
in completed, the trial of the Artha Rin
Suit No.388/19, renumbered as Artha Rin Suit
No.367/22, shall be proceeded with in
accordance with the law, if the Bank’s dues
are not fully adjusted by the sale price or
if the auction price is not accepted by the
Adalat.
(3) The Registrar General of the Supreme Court
of Bangladesh is directed to disseminate a
copy of this Judgment to all the learned
Judges of the country who are vested with 6
the power of conducting the Artha Rin
Suits/Cases.
(4) All the learned Judges of all the Artha Rin
Adalats of Bangladesh are directed to
acquaint with the ratio laid down in this
Judgment, particularly the principles
recorded in the penultimate paragraph of
this Judgment within 1(one) month of receipt
of this Judgment and, thereafter, report to
the learned District Judges of their
concerned Districts.
(5) All the learned District Judge of the
country are directed to ensure that the
learned Judges of the Artha Rin Adalat/s of
his/her District complies with this Court’s
Directions and, also, they shall notify the
Registrar General of the Supreme Court of
Bangladesh by e-Mail that this Court’s
Directions have been complied with.”
Being aggrieved by the said order the mortgagors-
defendants have preferred this civil petition for leave to
appeal.
Mr. Sk. Md. Morshed, learned Senior Advocate
appearing for the petitioners submits that the High Court
Division has failed to take into consideration that there
is no scope to sell the mortgaged property on the
application of the writ petitioner i.e. the borrower under
section 12(3) of the Artha Rin Adalat Ain, 2003, rather 7
the Bank has got the exclusive jurisdiction to take any
step(s) under section 12(3) of the Ain, Therefore, the
writ petitioner has no locus standi to file such
application.
Mr. Murshed further submits that the High Court
Division has failed to take into consideration that when
an Artha Rin Suit is already filed without selling the
mortgaged property following the provision of section
12(3), then the provision of sub-section 3 of the said
section must be followed by the court suo-moto or on the
application of the judgment debtor and there is no scope
to sell the property afterwards and the provision of
section -12 (6) and section 12(7) of the Artha Rin Ain are
mandatory provision of law, not an alternative provision
of section 12(3) of the Ain.
Mr. Murshed lastly submits that the principal
borrower cannot escape his liability by shifting the
burden on the third party mortgagors and asking for sale
of the mortgaged property inasmuch as whether the third
party has committed fraud or not, can be decided only upon
trail and as such the principal borrower cannot ask for
selling the mortgaged property bringing allegation of
fraud against the third party mortgaged.
Per contra, Mr. Murad Reza, learned Senior Advocate
appearing for the borrower writ petitioner-respondent
having supported the impugned judgment and order has
submitted that the High Court Division on proper
appreciation of the facts and law passed the impugned 8
order directing to facilitate the auction process and
trial of the Artha Rin Suit shall be halted and the suit
shall be proceeded with in accordance with law, if the
Bank’s due are not fully adjusted by the sale price or if
the auction price is not accepted by the Adalat.
We have considered the rival submissions of the
learned Advocates for the respective parties, perused the
impugned judgment and order, the materials as placed
before us and the relevant provisions of law.
To decide the issue involved in this case, it is
necessary to look into the provision of section 12 of the
Artha Rin Adalat, 2003 (hereinafter referred to as Ain,
2003) which as follows;
"12| (1) Dc-aviv (2) Gi weavb mv‡c‡ÿ, †Kvb Avw_©K cÖwZôvb, Dnvi wbR `Lj
ev wbqš¿‡Y _vKv weev`xi †Kvb m¤úwË hvnv cY ev eÜK (Lien or
pledge) ivwLqv FY cÖ`vb Kiv nBqv‡Q, Ges hvnv weµq Kwievi AvBbMZ
AwaKvi ev`xi iwnqv‡Q ev`x‡K Ac©Y Kiv nBqv‡Q, Dnv weµq bv Kwiqv Ges
weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_© FY Av`vj‡Z †Kvb gvgjv
`v‡qi Kwi‡e bv|
(2) Dc-aviv (1) Gi weavb m‡Ë¡I, †Kvb Avw_©K cÖwZôvb wbR `Lj ev wbqš¿‡Y
_vKv cY ev eÜKx m¤úwË weµq bv Kwiqv gvgjv `v‡qi Kwi‡j AbwZwej‡¤^ D³
m¤úwË c~e©-ewY©Z g‡Z weµq Kwiqv weµqjä A_© F‡Yi mwnZ mgš^q Kwi‡e Ges
welqwU Av`vj‡K wjwLZfv‡e AewnZ Kwi‡e|
(3) †Kvb Avw_©K cÖwZôvb, weev`xi wbKU nB‡Z †Kvb ¯’vei m¤úwË
(Immovable Property) eÜK (Mortgage) ivwLqv A_ev A¯’vei
m¤úwË (Movable Property) `vqe× ivwLqv (Hypothecated)
FY cÖ`vb Kwi‡j Ges eÜK cÖv`b ev `vqe× ivLvi mgq eÜKx ev `vqe× m¤úwË
weµ‡qi ÿgZv Avw_©K cÖwZôvb‡K cÖ`vb Kiv nBqv _vwK‡j, Dnv weµq bv Kwiqv Ges 9
weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_ev weµ‡qi †Póv Kwiqv e¨_© bv
nBqv, A_© FY Av`vj‡Z †Kvb gvgjv `v‡qi Kwi‡e bv|
(4) Dcaviv (3) G DwjøwLZ weµ‡qi †ÿ‡Î Avw_©K cÖwZôvb GB AvB‡bi aviv 33
Gi Dc-aviv (1), (2) I (3) Gi weavb, hZ`~i m¤¢e, Abymib Kwi‡e|
(5) †Kvb Avw_©K cÖwZôvb, hw` Dnvi AbyKz‡j Dc-aviv (3) Gi Aaxb eÜwK ev
`vqe× †Kvb ¯’vei ev A¯’vei m¤úwË weµ‡qi Rb¨ GB avivi Aaxb M„nxZ Kvh©µ‡gi
myweav‡_© Abyiƒc ¯’vei ev A¯’vei m¤úwËi `Lj I wbqš¿Y weµ‡qi c~‡e© ev c‡i
weev`x ev FY MÖnxZv nB‡Z wbR `Lj ev wbqš¿‡Y mgwc©Z nIqv A_ev, †ÿÎgZ,
†µZvi AbyKz‡j mgc©Y Kiv cÖ‡qvRb g‡b K‡i, Zvnv nB‡j D³ Avw_©K cÖwZôvb
wjwLZfv‡e Aby‡iva Kwi‡j weev`x ev FY-MÖnxZv Abyiƒc `Lj Awej‡¤^ Avw_©K
cÖwZôvb ev †ÿÎgZ, †µZvi AbyK~‡j mgc©b Kwi‡e|
(5K) Dc-aviv (5) Gi Aax‡b wjwLZfv‡e Aby‡iva Kiv m‡Ë¡I hw` weev`x ev FY
MÖnxZv D³ Dc-avivq DwjøwLZ m¤úwËi `Lj I wbqš¿Y Avw_©K cÖwZôvb ev ‡ÿÎgZ
†µZvi AbyK~‡j mgc©b bv Kwiqv _v‡Kb, Zvnv nB‡j Avw_©K cÖwZôvb mswkøó ¯’vbxq
Awa‡ÿ‡Îi †Rjv g¨vwR‡÷ª‡Ui wbKU `iLv¯Í Kwiqv D³ m¤úwËi `Lj I wbqš¿Y
weev`x ev FY MÖnxZv nB‡Z Dnvi AbyK~‡j ev †ÿÎgZ, †µZvi AbyK~‡j mgc©Y Kwi‡Z
Aby‡iva Kwi‡Z cvwi‡e; Ges Abyiƒcfv‡e Abyiæ× nB‡j †Rjv g¨vwR‡÷ªU wKsev
Zvnvi g‡bvbxZ cÖ_g †kÖbxi †Kvb g¨vwR‡÷ªU, D³ m¤úwË wKsev Zvnvi g‡bvbxZ
cÖ_g †kÖYxi †Kvb g¨vwR‡÷ªU, D³ m¤úwË Avw_©K cÖwZôv‡bi AbyK~‡j cÖ`Ë F‡Yi
wecix‡Z eÜK ev `vqe× _vKvi wel‡q mš‘ó nIqv mv‡c‡ÿ Dnvi `Lj I wbqš¿b
weev`x ev FY-MÖnxZv nB‡Z D×vi Kwiqv Avw_©K cÖwZôvb A_ev, †ÿÎgZ Avw_©K
cÖwZôv‡bi cÿ nB‡Z ‡µZvi AbyK~‡j mgc©Y Kwi‡eb|
(6) †Kvb Avw_©K cÖwZôvb Dc-aviv (2) I (3) Gi weavb cvjb bv Kwi‡j, Av`vjZ ¯^-
D‡`¨v‡M A_ev `vwq‡Ki wjwLZ Av‡e`bµ‡g, wWµx cÖ`vb Kwievi mgq D³ Avw_©K
cÖwZôvb KZ…©K D³ m¤úwËi cÖ`wk©Z g~j¨vq‡bi, hw` _v‡K, mgcwigvb A_© gvgjvi
`vex nB‡Z ev` w`qv wWµx cÖv`b Kwi‡e Ges cÖ`wk©Z g~j¨ bv _vwK‡j, Av`vjZ,
m¤úwËi ¯’vbxq Awa‡ÿ‡Îi mve-‡iwR÷ªv‡ii cÖwZ‡e`b MÖnY Kwiqv, g~j¨ wba©viY 10
Kwi‡e Ges wba©vwiZ D³ g~‡j¨i mgcwigvY A_© gvgjvi `vex nB‡Z ev` w`qv wWµx
cÖ`vb Kwi‡e|
(7) Dc-aviv (6) Gi Aax‡b †h m¤úwËi wba©vwiZ g~j¨ gvgjvi `vex nB‡Z ev` w`qv
wWµx cÖ`vb Kiv Bn‡e, D³ m¤úwËi gvwjKvbv aviv 33 Gi Dc-aviv (7) Gi
weav‡bi Abyiƒc c×wZ‡Z Avw_©K cÖwZôv‡bi AbyK~‡j b¨¯Í nB‡e|
(8) AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi
Aax‡b Avw_©K cÖwZôvb KZ…©K lien, pledge, hypothecation
A_ev mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbZx ¯’vei ev A¯’vei
m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Ë m„wó Kwi‡e Ges
†µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bvt
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ…©K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev
c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix FY-MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡×
ÿwZc~iY `vex Kwi‡Z cvwi‡eb| "
If we meticulously examine the various provisions of
section 12 of the Ain,2003, in particular sub-sections 2,
3, 6 and 7 it will be abundantly clear that the provision
of sub-section 1 of the said section cannot be said as
mandatory provision of law.
Sub-section 1 though stipulates, [subject to the
provision of sub-section 2] a financial institution
without selling any property and adjusting the sale
proceeds thereof in repayment of land money, shall not
institute any suit in the Artha Rin Adalat against any
property of the defendant which has been mortgaged liened
or pledged, upon which the plaintiff has right to sell or
is vested such right and also in possession or control of
said financial institution. 11
But sub-section 2 of section 12 speaks that
notwithstanding the provisions of sub-section (1), where a
financial institution institutes any suit without selling
the liened or pledged property which is in his possession
or control, it shall immediately sell the said property in
the aforesaid manner and adjust the sale proceeds thereof
with the money loan and shall inform the court, in writing
relating thereto and sub-section 6 of section 12 speaks
that if any financial institution does not comply with the
provisions of sub-section (2) and (3), the court shall,
either on its own motion or on a written prayer of the
judgment debtor, award a decree deducting from the claim
of the suit the sum equal to the value, if any, of the
said property shown by the said financial institution at
the time of awarding such decree, and in the absence of
any shown value, the court shall on the basis of a report
from the sub-registrar of the local jurisdiction,
determine the value of such property and shall award a
decree deducting from the claim of the suit the sum equal
to the value so determined.
Sub-section 3 of section 12 stipules that no
financial institution shall, when it advances loan by
taking any immovable property in mortgage or taking any
movable property in hypothecation from the defendant and
at the time of giving mortgage or hypothecation the
financial institution is given the power to sell the
mortgaged or hypothecated property, without selling such
property and adjusting the sale proceeds thereof in 12
repayment of loan or without failing on trying to sell
such property institute any suit in the Artha Rin Adalat.
From the combined reading of the above provisions of
law it cannot be said that unless and until mortgaged
property is not sold in auction as per sub-section 1 of
section 12 of the Ain,2003 the Bank/financial
institution(s) is precluded to file any suit, in other
words selling the mortgaged property before institution of
the Artha Rin Suit is not sino qua non.
Law clearly provides that despite due initiative and
diligence by the Bank/Financial institutes the sale of
mortgaged property is not completed as per provision of
sub-section-1, in that event the Bank/Financial
institutions has got the authority to sell the
mortgaged/liened/hypothecated property and adjust the sale
proceeds with the decreetal amount at the time of passing
the decree.
Sub-section 3 of section 12 of the Ain,2003 provides
that the Bank/financial institution(s) cannot file a suit
without taking steps to sell the mortgaged property and
failing to sell the same. It does not mean that the Bank/
financial institution(s) is to be halted to file the suit.
Thus, the High Court Division committed serious error
in halting the further proceeding of the suit. The
observations of the High Court Division are contrary to
the order of halting the further proceeding of the suit
before selling the mortgaged-property. If, we hold that 13
the provision of sub-section 1 is mandatory one, in that
event provision of sub-section 2, 5, 6 will be nugatory.
Further, another pertinent question has been involved
in this case i.e. whether a defaulter borrower can seek
direction upon the plaintiff regarding the procedure that
will be taken in realization of loan. The answer is simply
‘no’. A borrower defendant cannot dictate the plaintiff as
to his course of action for realization of loan. In the
instant case the defaulter loanee had filed an application
before the Adalat for selling the mortgaged property
before proceed further with the suit. This attempt of the
defaulter loanee, whose property was not mortgaged, not
only surprises us but also we are constraint to hold that
he has taken a device to delay the disposal of the suit as
well as and to pay the outstanding money to the Bank.
In the instant case it is undeniable fact that the
Bank, before filing the suit had taken steps as per
provision of section 12(3) of the Ain,2003 for selling the
property but auction was not done due to the filing of the
writ petition before the High Court Division by the
mortgagors. Thus, there is no room to say that Bank before
filing the suit did not take any steps to sell the
mortgaged property.
Having considered and discussed as above, we are of
the view that the High Court Division committed serious
error in passing the impugned judgment and order by
halting the proceeding of the suit and thus, same is
required to be interfered. 14
However, since we have heard the learned Advocates
for the respective parties at length, thus, we are
inclined to dispose of the civil petition for leave to
appeal without granting any leave to avoid further delay
of disposal of the suit.
Accordingly, the civil petition for leave to appeal
is disposed of. The impugned judgment and order dated
30.05.2023 passed by the High Court Division is hereby set
aside.
The Artha Rin Adalat is directed to proceed with the
case in accordance with the law.
However, the Bank is at liberty to sell the mortgaged
property during pendency of the suit by way of auction or
negotiation with the approval of the Artha Rin Adalat and
the Adalat is at liberty to deal with the matter in
accordance with the law.
However, there is no order as to cost.
J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:3,115.
|
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH
APPELLATE DIVISION
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan
-Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.67 of 2022
WITH
CIVIL PETITION FOR LEAVE TO APPEAL NO.861 of 2022.
(From the order dated 29.07.2019 and 11.11.2021 passed by this Division
and the High Court Division in Civil Petition for Leave to Appeal
No.1613 of 2019 and Civil Revision No.1040 of 2020 respectively).
M/s. Sonar Bangla Service Filling
Station (CNG) Limited , represented by
its Managing Director Rana Chowdhury.
:
....Appellant/
Petitioner.
-Versus-
M/s. Nasir CNG Filling Station , represented
by its Proprietor Nasir Uddin and others.
: ....Respondents.
For the Appellant/Petitioner.
(In both the cases)
: Mr. Kamal-Ul-Alam, Senior Advocate
(with Ms . Shahanaj Akter , Advocate)
instructed by M s. Madhumalati
Chowdhury Barua, Advocate-on-Record.
For Respondent No.1.
(In both the cases)
: Mr. M. Qu mrul Haque Siddique , Senior
Advocate (With Mr. A.B.M. Altaf Hossain,
Senior Advocate) instructed by M s.
Shahanara Begum, Advocate-on-Record.
For Respondent Nos.2-7.
(In C.A. No.67 of 2022)
: Not represented.
For Respondent Nos.2-10.
(In C.P. No. 861 0f 2022)
: Not represented.
Date of Hearing. : The 08th & 15th November, 2023.
Date of Judgment. : The 21st November, 2023.
J U D G M E N T
Borhanuddin,J.: This civil appeal arises out of the leave
granting order dated 26.05.2022 in Civil Review Petition
No.381 of 2019 tagged with Civil Petition for Leave to 2
Appeal No.861 of 2022 for review of the order dated
29.07.2019 passed by this Division in Civil Petition for
Leave to Appeal No. 1613 of 2019 dismissing the same as
barred by limitation.
Facts relevant for disposal of the civil appeal are
that the respondent no. 1 herein as writ -petitioner
preferred Writ Petition No.14870 of 2016 seeking direction
upon the writ -respondents to supply gas connection to his
CNG filling station namely, ‘M/s. Nasir CNG Filling
Station’ in terms of the Memo No. Avwewe-weAvi/cªm/32/450, dated
16.07.2007, contending interalia, that the petitioner is
the proprietor of ‘M/s. Nasir CNG Filling Station’ , which
is proposed to be set up; The petitioner applied to the
writ-respondent no. 4, Titas Gas Transmission and
Distribution Company Limited , for supply of gas at the
proposed CNG station and accordingly, respondent no. 4
accord consent by letter dated 16.07.2007; The petitioner
invested huge amount for the proposed CNG Filling S tation
and obtained necessary permissions from the concerned
authority but the respondent s started dilly dallying in
connecting gas line ; The petitioner knocked the respondents
several times but without any response; To set up the 3
filling station, petitioner borrowed loan from the bank but
due to non-cooperation of the respondents failed to start
CNG filling Station and thus suffering huge loss ; The
petitioner made a representation to the respondent no .4
stating his hardship with a request to take necessary steps
for providing gas connection but n o such step has yet been
taken by the respondents; Hence, the petitioner invoke d the
writ jurisdiction under Article 102 of the Constitution.
Upon hearing the writ-petitioner, a Division Bench of
the High Court Division issu ed a Rule Nisi upon the
respondents and ultimately disposed of the Rule vide
judgment and order dated 08.05.2017 with the following
direction:
“Considering the facts and circumstances of
the case, we are of the view that the
petitioner is also entitled to get the gas
connection for which, under the
circumstances, we direct the concerned
respondents to give gas connection to the
CNG filling station of the petitioner namely
M/s. Nasir CNG Filling Station of Village -
Maijhati, Police Station-Pakundia, District-
Kishoreganj, within a period of sixty days
from the date of receipt of this judgment
and order subject to fulfillment of all the
requirement by the petitioner and
availability of gas in the local area. 4
In the result, the Rule is disposed of with
the above directions.”
Being aggrieved, writ-respondent no. 4 as petitioner
filed Civil Pe tition for Leave to Appeal Nos. 2113 and
2114 of 2017 before this Division and after hearing ,
those were dismissed vide order dated 31.07.2017.
Against the order date d 31.07.2017, respondent no.4
preferred Civil Review Petition Nos. 463-464 of 2017 which
were also dismissed vide order dated 08.01.2018.
After disposal of the civil review petition s while
the Titas Gas Transmission and Distribution Company
Limited in itiated process f or implementation of the
judgment and order passed by the High Cour t Division in
Writ Petition No. 14870 of 2016, the writ-petitioner filed
an application on 26.02.2018 before the High Court
Division for correction of order in portion of the
judgment and or der by changing the place of its CNG
establishment at “Village-Nandula, Post Office -
Chaddashwar, Police Stati on-Kishoreganj Sadar, District -
Kishoreganj” in place of “Village-Maijhati, Police
Station-Pakundia, District-Kishoreganj” and the High Court
Division allowed the same vide order dated 27.02.2018. 5
Having aggrieved by the said order, present appel lant
as third party -petitioner preferred Civil P etition for
Leave to Appeal No. 1613 of 2019 before this Division ,
stating interalia, that the present appellan t has been
running its business under the name and style ‘M/s. Sonar
Bangla Service Filling Station (CNG) Limited’ situated at
Board Bazar, Chaddashwar, Kishoreganj Sadar, District -
Kishoreganj, which is adjacent to the new address of
writ-petitioner and if the writ-petitioner is allowed to
establish its CNG Filling Station in its new address the n
the business of the present appellant would be seriously
affected and the same will also be violative of the
Gazette Notification dated 27.09.2009 by which criteria
has been fixed for establishment of new CNG Station.
After hearing the parties , this Division dismissed
the Civil Petition for Leave to Appeal No.1613 of 20 19
vide order dated 29.07.2019.
Having aggrieved, present appellant as petitioner
filed Civil Review Petition No.3 81 of 2019 invoking
Article 105 of the Constitution and leave was granted on
the following grounds: 6
I. Because of after disposal of civil petitions
and civil review petitions the High Court
Division became ‘functus officio’ and cannot
change the order in portion of the judgment
and order and as such the order dated
27.02.2018 has been passed without lawful
authority and beyond the jurisdiction of the
High Court Division and thus the same is
liable to be set-aside.
II. Because of the present petiti oner has been
running his business in the name and style
of “M/s. Sonar Bangla Service Filling
Station (CNG) Limited” situated at Board
Bazar, Chaddashwar, Kishorganj Sadar,
District-Kishorganj, which is adjacent to
the new address of writ -petitioner and, if,
the writ-petitioner is allowed to establish
its CNG Filling Station in its new address
the business of the present petitioner will
be seriously affected and the same will be
violative to Gazette Notification dated
27.09.2009 by which the criteria has b een
fixed for establishment of new CNG Station
and, since the new address of the writ -
petitioner is situated within 3(three)
kilometers from the present petitioner’s CNG
Station, the same is not sustainable in law,
and, as such the present petitioner ha s
filed this instant petition.
Consequently, instant civil appeal arose.
To address the ground no.1 , it requires to see
whether the High Court Division after passing the
judgment and order became ‘Functus Officio’. 7
The term ‘Functus Officio ’ means that the
jurisdiction of a designated authority comes to an end
once he/she has performed his function s for which he/she
was appointed. This term is equally applicable for all
other offices including the Courts.
It is settled principle that when a court has reached
its final decision in respect of a matter, such court
cannot vary/change its own decision, unless it is
permitted by the specific provision of law.
The Supreme Court of Canada in the case of Canadian
Broadcasting Corp. vs. Manitoba, reported in (2021) SCC
33, held:
“In its contemporary guise, functus officio
indicates that a final decision of a court
that is susceptible of appeal cannot, as a
general rule, be reconsidered by the court
that rendered that decision (see Chandler v.
Alberta Association of Archi tects, 1989
CanLII 41 (SCC), [1989] 2 S.C.R. 848, at
p.860; Reekie v. Messervey, 1990 CanLII 158
(SCC), [1990] 1 S.C.R. 219, at p p.222-23;
Doucet-Boudreau v. Nova Scotia (Minister of
Education), MANU/SCCN/0059/2003: 2003 SCC
62, [2003] 3 S.C.R. 3, at paras .77-79). A
court loses jurisdiction, and is thus said
to be functus officio, once the fo rmal
judgment has been entered (R. v. Adams, 1995
CanLII 56 (SCC ), [1995] 4 S.C.R. 707, at 8
para.29; R. v. Smithen-Davis, 2020 ONCA 759,
68 C.R. (7th) 75, at paras.33-34).”
In the case of Re: V.G.M. Holdings, LTD. ,
reported in 1941 (3) All. ER 417, it was held that:
“It is well-settled that the court can vary
any order before it is passed and entered.
After it has been passed and entered, the
court is functus officio, and can make no
variation itself. Any variation which may be
made must be made by a court of appellate
jurisdiction.”
From the principle enunciated in the referred cases,
our considered view is that after disposal of the Rule
Nisi issued in writ petition vide judgment and order
dated 08.05.2017 and also after disposal of civil
petition as well as civil review petition , the High Court
Division beca me f unctus officio in respect of the
judgment a nd order dated 08.05.2017 passed in the Writ
Petition No.14870 of 2016.
Ground no.2 relates to violation of the criteria
fixed by the Gazette Notification dated 27.09.2009 for
establishment of new CNG station.
Relevant portion of the Gazette Notification is
reproduced below: 9
“2| bZzb wmGbwR †÷k‡bi ¯ ’vc‡bi Aby‡gv`‡bi †ÿ‡Î wb¤œewb©Z welqmg~n
h_vh_fv‡e cÖwZcvjb Ki‡Z n‡e|
(1) kn‡ii evwni I wfZ ‡i GKB mo ‡Ki GKB cv ‡k^© GKwU wmGbwR
wdwjs †÷kb †_‡K Av‡iKwU wmGbwR wdwjs †÷k‡bi byb¨Zg `~iZ¡ h_vµ ‡g
6 wKt wgt I 3 wKt wgt| kn‡ii evwni I wfZ‡i GKB mo‡Ki wecixZ cv‡k^©
GKwU wmGbwR wdwjs †÷kb †_‡K Av‡iKwU wmGbwR wdwjs †÷k‡bi `~iZ¡
h_vµ‡g 4 wKt wgt I 2 wKt wgt n‡Z cv‡i|”
(emphasis supplied)
From the above, it is crystal clear that criteria for
establishment of new CNG Filling Station is that minimum
distance between two CNG Filling Station on the same side
of a road in the city requires to be 6 kilometre and 3
kilometre respectively whereas on the opposite side of
the same road minimum distance requires to be 4 kilometre
and 2 kilometre respectively.
Claim of the appellant is that distance of the new
address of the writ petitioner and the existing CNG
station of the appellant is less than 2(two) kilometer
and thus violative of the Gazette Notification dated
27.09.2009.
To ascertain the distance of two CNG Filling Stations
a local investigation was held in Miscellaneous Appeal
No.26 of 2020 arose out of Other Class Suit No.23 of 2020
filed by the appellant as plaintiff impleading the
respondent no.1 and others as defendants. After holding 10
local investigation, the appointed Advocate Commissioner
submitted his report stating that:
“1| Avwg m‡iRwg‡b wM‡q Avi.Gm. †PŠÏkZ I gZjecyi †gŠRvi bKkvØq cÖvß nBqv
D³ †PŠÏkZ I gZjecyi †gŠRvi Avi.Gm. bKkv fvIivBqv m‡iRwg‡b Rwic cwigvc
Kwiqv †mvbvi evsjv mvwf©m wm.Gb.wR . wdwjs †ókb †Kvb `v ‡M we`¨gvb Zvnv wbY©q
KwiqvwQ Ges †gmvm© bvwQi wm.Gb. wR. wdwjs †ókb †Kvb †gŠRvi †Kvb `v‡Mi AšÍM©Z
ZvnvI wbY©q KwiqvwQ| G‡Z †`Lv hvq †h, †mvbvi evsjv mvwf©m wm.Gb.wR. wdwjs †ókb
†PŠÏkZ †gŠRvi Avi.Gm. bKkvi 2bs mx ‡Ui hvnv Avi. Gm. 2450bs `v‡Mi AšÍM©Z
Ges †gmvm© bvwQi wm.Gb.wR . wdwjs †ókb gZjecyi †gŠRvi Avi.Gm. bKkvi 1bs
mx‡Ui hvnv Avi.Gm. 281 I 284 `v‡Mi AšÍM©Z|
Avwg AvgviK …Z bKkvq †mvbvi evsjv mvwf©m wdwjs †ókb‡K B bs cø ‡Ui gva¨ ‡g Ges
†gmvm© bvwQi wm.Gb.wR . wdwjs †ókb‡K K I L bs cø‡Ui gva¨ ‡g †`LvBqvwQ| B bs
cø‡Ui 9bs ‡ókb †_‡K L bs cø ‡Ui 23bs †ókb ch©šÍ A_©vr †mvbvi evsjv mvwf©m
wm.Gb.wR. wdwjs †ókb nB‡Z †gmvm© bvwQi wm.Gb.wR. wdwjs †ók‡bi `~iZ¡ 8600 wjsK
ev 5676 dzU ev 1730 wgUvi ev 1.73 wK‡jvwgUvi A_©vr †cŠ‡b `yB wK‡jvwgUvi cÖvq|
Dc‡iv³ †gvKÏgvq Avgvi K …Z b Kkvq Avi. Gm. jvBb¸‡jv Kv‡jv Kvwji is Øviv,
†PBb jvBb¸wj meyR Kvwji Øviv, †ókb¸wj bxj Kvwji is Øviv Ges †ebvwjkx cøU¸wj
†e¸wb Kvwji is Øviv Ges †mvbvi evsjv mvwf©©m wm.Gb.wR. wdwjs †ókb‡K njy` Kvwji
is Øviv Ges †gmvm© bvwQi wm.Gb.wR. wdwjs †ókb‡K bxj Kvwji is Øviv wPwýZ Kwiqv
†`Lv‡bv nBj| D ³ †gvKÏgvq Avgvi K …Z cÖwZ ‡e`b I †gvKÏgvi wdìeyK, bKkv
hvnv Avgvi cÖwZ‡e`‡bi Ask ZvnvB AÎ mn `vwLj Kiv nBj|”
(emphasis supplied)
From the report as quoted above, it is apparent that
the CNG Filling Station of the a ppellant namely M/s.
Sonar Bangla Service Filling Station (CNG) Limited is
situated at a distance of 1.73 kilometer from the new
address of the writ petitioner-respondent no.1.
From the discussions made above, it is clear that the
new address of the writ -petitioner for proposed CNG
station is violative of the Gazette Notification dated
27.09.2009. 11
Under the facts and circumstances of the case and for
the reasons stated above , we are inclined to allow the
Civil Appeal No.67 of 2022.
Accordingly, the appeal is allowed.
Order dated 27.02.2018 passed in Writ Petition
No.14870 of 2016 is hereby set-aside.
The Civil Petition for Leave to Appeal No.861 of 2022
is disposed of in the light of the judgment and order
delivered in the Civil Appeal No.67 of 2022.
However, no order as to costs.
CJ.
J.
J.
J.
J.
The 21st November, 2023
Jamal/B.R./Words*2166*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
CIVIL APPEAL NO. 547 OF 2009
(Arising out of Civil Petition No. 1724 of 2008)
The Government of Bangladesh
represented by the secretary,
Ministry of Home Affairs, Bangladesh
Secretariat, Ramana, Dhaka
: .... Appellant
-Versus-
Md. Abdul Mannan and others : ....Respondents
For the Appellants
: Mr. Sk. Md. Morshed, Adl. AG with
Mr. Mohammad Saiful Alam, AAG
instructed by Mr s. Sufia Khatun ,
Advocate-On-Record
For Respondent No. 1 : Mr. Sarwar Ahmed, Senior Advocate
instructed by Mr. Mohammad Ali
Azam, Advocate-on-record
For Respondent Nos.
2-4
Not represented
Date of hearing and
judgment
: 23.08.2023
JUDGMENT
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 15.04.2007 passed by
the High Court Division in Writ Petition No. 5282 of 2004
discharging the Rule with a direction to pay financial
benefit to the writ-petitioner. 2
Facts, in short, are that the respondent No. 1 herein
as petitioner filed the aforesaid writ petition
challenging the order of removal from his service date d
07.07.2004 contending inter -alia that while he was
working at Teknaf, Cox's Bazar loading Point Nos.1 and 2
with four B.D.R. personnel under the leadership of
Habilder Md. Amirul Islam on 11.07.2003 he was deputed
for loading fish truck and accordingly h e loaded a fish
truck partially under the direct supervision of the
Commander of the Group Habilder Md. Amirul Islam. Finding
disharmony with the loading of the truck containing
Guernsey, Umbrella, torch light etc. the higher authority
called him at B.N. Head Quarter Office, 23 Rifles
Battalion, Taknaf, Cox's Bazar on 16.07.2003 wherein his
statement was recorded as witness. On the same date some
questions were asked by the authority and he replied to
the questions mentioning his innocence. Withou t holding
any inquiry over the matter and without giving any
opportunity of being heard and having violated the
mandatory provisions of Section 6 of the Bangladesh
Rifles (Special Provisions), Ordinance, 1976 the writ
petitioner was terminated from his service on 07.07.2004 3
under Section 8 of the Bangladesh Rifles (Special
Provision) Ordinance, 1976. In the said office order the
Bengali words " ল" has been used but the
penalty under Section 5(b) of the said Ordinance is
removal from service whereas the penalty under Section
5(c) is discharge from service. On perusal of the removal
certificate, it appears that there is no m emo number and
the writ petitioner was remov ed from service by an order
of an individual officer and not by a Court or a Tribunal
established under law relating to such force.
Being aggrieved by and dissatisfied with the said
order of removal dated 07.07.2004, the respondent No. 1
moved before the High Court Division and obtained Rule .
The High Court Division upon hearing the parties
discharged the Rule with a direction to pay all financial
benefit to him. Having dissatisfied with that direction
the Government filed civil petition for leave to appea l
and obtained leave giving rise to this appeal.
Mr. Sk Md. Morshed , the learned Additional Attorney
General, appearing for the appellants, submits that the
High Court Division erred in law in directing the
respective authority of Bangladesh Rifles to provide the 4
respondent No.1 with financial benefits in not
considering that the provision s of Section 8 of the
Bangladesh Rifles (Special Pro vision) Ordinance, 1976
under which the respondent No.1 was awarded major penalty
of discharge from service does not authorize of having
such financial benefits.
He also submits that the High Court Division erred in
law in not considering that the respond ent No.1 being a
member of a disciplinary forces having been found guilty
of dereliction of duty and was discharged from service is
not entitled to any mercy by providing him any financial
benefit which tantamount to reward him for his
wrongdoing.
On the other hand Mr. Sarwar Ahmed , the learned
Senior Advocate for the respondent No. 1 supporting the
impugned Judgment and order passed by the High Court
Division contends that High Court Division rightly and
lawfully allowed the respondent No.1 to have service
benefit as per section 8 of the Bangladesh Rifles
(Special provisions) Ordinance, 1976 . Rather, without
holding any inquiry over the matter and without giving
any opportunity of being heard and in violation of the 5
mandatory provisions of Section 6 of the Bangladesh
Rifles (Special Provisions), Ordinance, 1976 the
respondent No.1 was removed from service on 07.07.2004
under Section 8 of the Bangladesh Rifles (Special
Provision) Ordinance, 1976 which was not legally done and
as such the appeal should be dismissed.
He further submits that in the judgment and order of
the Writ Petition No.5282 of 2004 the High Court Division
noted the submission s of the learned Assistant Attorney
General Mr. Md. Jafor Imam in the language, অপ প
, ল য় অপ অ
ল ও disciplined অ ।
ল প প ল forces ল অ
১৯৭৬ অ য় য় । ও প
ও য় অ ৮ অ ’discharge‘ ল য় ‘ ’
অ য় । ও ,
’discharge‘ ‘ ’ প প stigma য় ।
প ল প প অপ
য় । অ ল প ।”
and on scrutiny of the said submissions it is crystal
clear that the government admitted in their affidavit in
opposition that respondent No.1 was entitled to get 6
service benefit according to the service rules and as
such the government had no reason to be aggrieved to
prefer appeal against the verdict of the High Court
Division and hence, the appeal is liable to be dismissed.
We have heard the lea rned Advocate of both sides. We
have also perused the impugned judgment and order passed
by the High Court Division and other materials on record.
For better understating l et us first see what has
been prescribed in section 8 of the Bangladesh Rifles
(Special provisions) Ordinance, 1976 under which the
respondent No. 1 was terminated from his service. It
states:
“If the authority specified in column 2 of the Second
Schedule is of the opinion that continuance in service of
a member mentioned in column 1 is inexpedient or not in
the interest of the Bangladesh Rifles, he may, without
assigning any reason, either discharge or may make order
for premature retirement with such service benefits to
which such member may be entitled under this Ordinance or
any rules applicable to him.”
For further clarification, the Sections 4, 5 and 6 of
the Ordinance, 1976 are quoted below in verbatim: 7
4. Where a member is guilty of –
(i) misconduct;
(ii) dereliction of duty;
(iii) act of cowardice and moral turpitude;
(iv) corruption; and
(v) inefficiency,
the authority concerned specified in column 2 of the
First Schedule may impose on such member any of the
penalties mentioned in section 5.
5. The following shall be the penalties which may be
imposed upon a member under this Ordinance, namely:-
(a) dismissal from service;
(b) removal from service;
(c) discharge from service;
(d) compulsory retirement; and
(e) reduction to lower rank.
6. (1) When a member is to be proceeded against any
of the offences mentioned in section 4, the authority
concerned specified in column 2 of the First Schedule
shall frame a charge and specify therein the penalty
proposed to be imposed and communicate it t o the
member, hereinafter called the accused, requiring him
to show cause within a specified time which shall not
be less than seven days and not more than ten days
from the date the charge has been communicated to him
why the penalty proposed to be impose d on him shall 8
not be imposed and also state whether he desires to
be heard in person.
(2) If, after consideration of the cause shown
by the accused, if any, and hearing him in person, if
the accused so desires, the authority concerned finds
the accused gu ilty of the charge, he shall, within
twenty days of the receipt of the explanation, impose
upon the accused the proposed penalty or any other
lesser penalty under section 5.”
Notably, in section 4 and 5 of the Ordinance , 1976
the various offenses and the provisions of punishment
have been spelt out chronologically. According to section
6, if Bangladesh Rifle’s any member commits any criminal
offense, then after holding an inquiry and giving him
opportunity for self -defense any penalty prescribed in
Section 5 can be imposed. Against the said penalty appeal
can also be filed before the appropriate authority as per
Section 7 of the Ordinance , 1976. But according to the
provision of Section 8, it appears that if any member of
Bangladesh Rifles is inconvenient to be retained in
service or contrary to the interests of Bangladesh
Rifles, the appropriate authority without assigning any 9
reason can discharge him from his service or send him for
premature retirement with service benefits.
The question has been raised by the learned Advocate
for the respondent No. 1 that since the term " " has
been used in the impugned office order which is
tantamount to removal or removal from service as
punishment under Section 5 of the Ordinance, 1976 but no
procedure has been followed as contemplated under section
6 before inflicting such punishment, the impugned office
order for that reason is illegal and cannot be sustained.
In the case in hand, since the order of termination
has been passed under section 8 of the Ordinance, 1976 it
would be n ot punitive and it must be assumed that the
respondent No. 1 has been discharged from the service of
Bangladesh Rifles though the Bengali term " " has been
used there for the word ‘discharge’ inappropriately. So,
whatever submissions in this regard of the learned
Advocate for the respondent does not hold good being
falacious one. But the respondent No. 1 could be entitled
to get the financial benefits following the above
provisions of law. However, we would like to note that in
future, Bangladesh Rifles authorities will try to use the 10
correct Bengali synonym of ‘discharge’ to resolve this
doubt.
We, therefore, hold that the High Court Division has
rightly discharged the Rule directing to pay financial
benefits to the respondent No. 1 as per section 8 of the
Ordinance, 1976. We do not find any legal infirmity in the
impugned judgment and order passed by the High Court
Division.
Accordingly, this civil appeal is dismissed without any
order as to costs.
C.J.
J.
J.
The 23rd, August,2023
Ismail/B.O.word-*1885*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NOS.901 OF 2018
with C.P.1466 of 2022.
(From the judgment and order dated 16.10.2017 passed by the
High Court Division in Writ Petition No.9876 of 2014.)
Md. Abdur Rashid and others : Petitioners.
(In C.P.901/18)
Syed Sohrawardi and another : Petitioners.
(In C.P.1466/22)
=Versus=
A.B.M. Yousuf Abdullah and others : Respondents.
(In both the cases)
For the Petitioners :
(In C.P. 901/2018)
Mr.A.M. Aminuddin, Senior
Advocate, instructed by Mr.
Md. Helal Amin, Advocate-on-
Record.
For the Petitioners :
(In C.P. 1466/2022)
Mr. Probir Neogi, Senior
Advocate, instructed by
Mrs. Madhumaloti Chowdhury
Barua, Advocate-on-Record.
For the Respondent No.1-5:
(In C.P.901/18)
Mr. Mr. Abdul Wadud Bhuiya,
Senior Advocate with Mr.
Md. Nurul Amin, Senior
Advocate and Mr. M. Qumrul
Hoque Siddique, Advocate,
instructed by Mr. Bivash
Chandra Biswas,
Advocate-on-Record.
Respondent Nos.6-11:
(In C.P.901/18)
Not represented
Respondents :
(In C.P.1466/22)
Not represented
Date of hearing and judgment : 22-01-2023
J U D G M E N T
Hasan Foez Siddique, C. J: The delay in
filing in Civil Petition for Leave to Appeal
No.1466 of 2022 is condoned. 2
These two civil petitions for leave to
appeal have been filed against the common
judgment and order dated 16.10.2017 passed by
the High Court Division in Writ Petition
No.9876 of 2014 making the Rule absolute and
directing the Land Survey Department to make
final publication of the City Survey Khatians
in respect of case khatian.
The respondent Nos.1-5, A.B.M.Yousuf
Abdullah and others filed aforesaid writ
petition challenging the notice issued under
Memo No.31.03.2600.022.16.002.14 dated
28.09.2014 under the signature of the Charge
Officer and Investigating Officer, Dhaka Zonal
Settlement Office (writ respondent No.4)
directing the parties of the Appeal Nos.44896-
44901 of 2001 to appear with the documents on
14.10.2014 before him. The contents of the said
notification dated 28.09.2014 were as under:
ÒMYcªRvZš¿x evsjv‡`k miKvi
‡Rvbvj †m‡Uj‡g›U Awdmv‡ii Kvh©vjq, XvKv
28, knx` ZvRDwÏb Avng` m¥ibx
‡ZRMvuI, XvKv-1208|
d¨v∙ -9125423
[email protected]
m¥viK bs-31.03.2600.022.16.002.14 ZvwiLt 28/09/2014 wLªt
‡bvwUk 3
‡Rvbvj †m‡Uj‡g›U Awdmvi XvKv g‡nv`‡qi 24/08/2014 wLªt Zvwi‡Li
3103.26.00.022.46.001.14-458 bs m¥viKv‡`k †gvZv‡eK ¸jkvb _vbvaxb
15bs fvUviv †gŠRvi 44896/2001 n‡Z 44910/2001bs Avcxj gvgjvi iv‡qi
wei“‡× Rbve †gvt Avãyi iwk` Ms Gi `vwLjK…Z cybt ïbvbxi Av‡e`‡bi wel‡q
Z`š— AvMvgx 14/10/2014 wLªt ZvwiL mKvj 11.00 NwUKvq wbg¥ ¯^v¶iKvixi
Awdm K‡¶ AbywôZ n‡e| mswk ó mKj‡K cª‡qvRbxq KvMRcÎvw`mn h_vmg‡q
Dcw¯nZ _vKvi Rb¨ Aby‡iva Kiv n‡jv|
¯^vt
(†gvt †gvwgbyi ikx`)
PvR© Awdmvi
I
Z`š—Kvix Kg©KZ©v
‡Rvbvj †m‡Uj‡g›U Awdm, XvKv |Ó
Against said notification, the writ
petitioners, filing the aforesaid writ
petition, obtained Rule.
The leave petitioners (respondent No.5) of
Civil Petition for Leave to Appeal No.901 of
2018 and writ respondent Nos.8-10 appeared in
the said writ petition and filed Affidavit-in-
Opposition.
The High Court Division, by the impugned
judgment and order dated 16.10.2017, made the
said Rule absolute.
Then the writ respondent No.5 Md. Abdur
Rashid and 3 others filed Civil Petition for
Leave to Appeal No.901 of 2018 and third party 4
namely, Syed Sohrawardi and another filed Civil
Petition for Leave to Appeal No.1466 of 2022 in
this Division.
Mr. A.M. Aminuddin, learned Senior
Advocate appearing for the petitioners in Civil
Petition for Leave to Appeal No. 901 of 2018,
submits that they purchased the disputed land
by separate registered sale deeds and have been
possessing the same upon mutating their names
and paying rent to the Government regularly. He
submits that C.S., S.A. and R.S. khatians were
duly prepared in the names of their
predecessors and that the writ petitioner-
respondents obtained an order in appeal by
practising fraud. He submits that since there
was specific allegation of fraud in the
applications, the High Court Division erred in
law in making the Rule absolute and declaring
the notification unlawful.
Mr. Probir Neogi, learned Senior Advocate
appearing for the third party leave petitioners
in Civil Petition for Leave to Appeal No.1466
of 2022, submits that leave petitioners of this
petition purchased .38 acre of land from one
Narayan by two sale deeds No.12500 and 12501 5
dated 24.09.2000 from C.S. and S.A. khatian
No.105 and 115 respectively and plots No.2375,
the High Court Division erroneously made the
Rule absolute, consequently, these two
petitioners have been prejudiced seriously. He
submits that after purchasing the aforesaid
land, the leave petitioners of this petition
mutated their names in the khatian from the
office of the Assistant Commissioner of Land,
Tejgaon, Dhaka in Namjari O Jomabhagh Case
No.10302 of 2001 on 22.07.2001 and they also
mutated their names in the khatian in Namjari-
O- Jomabhagh Case No.18819 of 2005 dated
27.12.2005 and paid rent to the Government, the
High Court Division erred in law in making the
Rule absolute in respect of their portion of
their land.
Mr. Abdul Wadud Bhuiya, learned Senior
Advocate appearing with Mr. Md. Nurul Amin,
learned Senior Advocate and Mr. Qumrul Huq
Siddique, learned Advocate for the respondents
in both the petitions in their submissions
supported the judgment and order of the High
Court Division. 6
From the impugned notice dated 28.09.2014
as quoted above, it appears that at the
instance of Zonal Settlement Officer, Dhaka,
Charge Officer and Investigating Officer,
issued the aforesaid letter for further
hearing and communicated the said letter for
holding inquiry on 14.10.2014. The writ
petitioner respondents challenged the same
without appearing before the concerned office.
It further appears from the materials on record
that on the basis of the application dated
21.07.2014 Zonal Settlement Officer issued a
notice for holding inquiry under the provision
of Rule 42A of the State Acquisition and
Tenancy Rules, 1955 to ascertain as to whether
any fraud has been committed in making entry of
draft record-of-rights or not. The contents of
the said notice were as follows.
ÒMYcªRvZš¿x evsjv‡`k miKvi
‡Rvbvj †m‡Uj‡g›U Awdmv‡ii Kvh©vjq, XvKv
28, knx` ZvRDwÏb Avng` m¥ibx
‡ZRMvuI, XvKv-1208|
m¥viK bs-31.03.2600.022.46.001.14-458 ZvwiLt 24/08/2014 wLªt
welqt 1955 m‡bi cªRvZ¯^Z¡ wewagvjvi 42K wewai †Kvb Dcv`vb Av‡Q wKbv Zv hvuPvB
A‡š— cªwZ‡e`b `vwLj|
m~Ît Rbve ‡gvt Avãyi iwk` Gi 21/07/14 wLªt Zvwi‡Li `vwLjK…Z Av‡e`b|
Dchy³ welq I m~‡Î cªvß Rbve †gvt Avãyi iwk`, mvs -12/O/1, k¨vgjx, moK-
02, XvKv Gi XvKv wmwU Rwi‡ci ¸jkvb avbvaxb 15bs fvUviv †gŠRvi 44896/2001 7
n‡Z 44901/2001 bs †gvU 06 wU Avwcj gvgjvi iv‡qi Amg¥wZ‡Z 1955 m‡bi
cªRv¯^Z¡ wewagvjvi 42K wewa g‡Z ïbvbxi g~j Av‡e`bmn Avbymw½K KvMRcÎ G m v‡_
†cªiY Kiv n‡jv|
02| gnvcwiPvjK, f~wg †iKW© I Rwic Awa`ßi g‡nv`‡qi 14/7/2010wLªt
Zvwi‡Li f~t †i./75/2009/2001bs ¯^vi‡K cªRv¯^Z¡ wewagvjv-1955 Gi 42K I L wewai
cª‡qvM m¤ú‡K© †m‡Uj‡g›U Awdmvi/†Rvbvj †m‡Uj‡g›U Awdmvi eivei RvixK…Z
wb‡`©kbvi Av‡jv‡K Av‡e`bKvixi Av‡e`‡bi wel‡q 1955 m‡bi cªRv¯^Z¡ wewagvjv
AbymiYiZ wbg¥ ewb©Z Z_¨mn my¯có gZvgZmn cªwZ‡e`b `vwL‡ji Rb¨ Aby‡iva Kiv
n‡jv|
K) mswk ó †gŠRvi wWwc, AvcwË I Avcxj ïbvbx Pjvi mgqKvj|
L)`vexK…Z Rwgi gvwjKvbv cªvwßi Drm
1| ˆcwÎK
2| µqm~‡Î (g~j `wj‡ji d‡UvKwc) `wj‡ji ‡cªw¶‡Z wgD‡Uk‡bi
Kwc|
3| Ab¨vb¨|
M) nvj m‡bi f~wg Dbœqb Ki cwi‡kv‡ai Kwc|
N) m‡iRwg‡b `Lj cªwZ‡e`b (PZzc©vk¡¯’ `vM D‡j L KiZ †¯‹Pg¨vcmn)|
03| cªwZ‡e`‡bi mv‡_ g~j Av‡e`b I AvbymswMK KvMRcÎ cªZ¨c©Y‡hvM¨|
mshy³t 144 d`©| ¯^vt A¯có
24/8/14
(gynvg¥` Iqvwn`y¾vgvb)
‡Rvbvj †m‡Uj‡g›U Awdmvi (AwZt `vwqZ¡)
XvKv|
‡dvbt (02)9131573
Rbve †gvt †gvwgbyi ikx`
PvR© Awdmvi
‡Rvbvj †m‡Uj‡g›U Awdm, XvKv|Ó
Thereafter, by the impugned notice dated
28.09.2014, it was directed to the parties to
appear before the Zonal Settlement Officer on
14.10.2014. Rule 41, 42A of the State 8
Acquisition and Tenancy Rules, 1955 authorized
the Revenue Officer to hold enquiry to
ascertain as to whether any fraud has been
committed in making entry in record-of-right or
not and such application should be filed before
final publication of the record-of-rights. The
said provision run as follows:
“42A. Correction of fraudulent entry
before final publication of record-of-
rights- The Revenue Officer, with the
additional designation of ‘Settlement
Officer’ shall, on receipt of an
application or on receipt of an official
report for the correction of an entry that
has been procured by fraud in record-of-
rights before final publication thereof,
after consulting relevant records and
making such other enquiries as he deems
necessary, direct excision of the
fraudulent entry and his act in doing so
shall not be open to appeal. At the same
time, the Revenue-Officer shall make the
correct entry after giving the parties
concerned a hearing and recording his
finding in a formal proceeding for the
purpose of future reference.”
Admittedly, record-of-right in the instant
case, has not yet been published finally. Since
petitioner Abdur Rashid brought specific
allegations that the writ petitioners procured 9
the order by practising fraud, the Revenue
Officer with the additional designation of
Settlement Officer can examine as to whether
such order has been procured by practising
fraud or not.
The instant case, it appears that
the
Zonal Settlement Officer simply issued a notice
directing the parties to appear before him with
their respective papers. The writ petitioners,
without appearing before the said Officer,
directly filed the instant writ petition and
obtained Rule which was finally made absolute.
Since the law authorizes the Revenue officer
with additional designation of settlement
officer to hold inquiry to ascertain as to
whether any fraud had been committed in
procuring entry for preparation of the record-
of-rights before final publication or not, we
are of the view, that the said Office acted in
its jurisdiction as conferred under the Rule
42A of the State Acquisition Rules, 1955
rightly, the High Court Division erred in law
in interfering with the matter at the stage
when the writ petitioners have ample
opportunity to appear before the Zonal 10
Settlement Officer and to produce documents to
justify their claims.
Accordingly, we find substance both the
petitions.
Thus, both the petitions are disposed of.
The judgment and order dated 16.10.2017 passed
by the High Court Division in Writ Petition
No.9876 of 2014 is hereby set aside.
C. J.
J.
J.
The 22nd January, 2023.
halim/words-1625 /
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.903 OF 2023
with
C.P. No.2256 of 2017, 2427 of 2018 & C.R.P. No.339 of
2018.
(From the judgment and order dated 21.11.2022 and
08.12.2014 passed by the High Court Division in Writ Petition
No.9051 of 2018, 688 of 2014 and order dated 17.08.2009
passed by the Appellate Division in C.P. No.2260 of 2008)
S. Nehal Ahmed. Petitioner.
(In C.P.No.903/23)
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works and another
Petitioners.
(In C.P.No.2256/17,
2427/18 & C.R.P.
No.339 of 2018)
=Versus=
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works and another
Respondents.
(In C.P.No.903/23)
S. Nehal Ahmed Respondent.
(In C.P.No.2256/17,
2427/18 & C.R.P.
No.339 of 2018)
For the Petitioner :
(In C.P No.903/23)
Mr.M. Quamrul Hoque Siddique,
Advocate (with Mr. Nakib
Saiful Islam, Advocate),
instructed by Mr. Md.Nurul
Islam Chowdhury, Advocate-on-
Record.
For the Petitioners :
((In C.P.No.2256/17 &
2427/18 & C.R.P. No.339
of 2018)
Mr.A.M. Amin Uddin, Attorney
General (with Mr. Kazi Mynul
Hasan, Deputy Attorney
General) instructed by Mr.
Haridas Paul, Advocate-on-
Record & Ms. Sufia Khatun,
Advocate-on-Record.
For the Respondents :
((In C.P.No.903/23)
Mr.A.M. Amin Uddin, Attorney
General (with Mr. Kazi Mynul
Hasan, Deputy Attorney
General) instructed by Mr.
Haridas Paul, Advocate-on- 2
Record.
For the Respondent :
(In C.P. No.2256/17 &
2427/18)
Mr.M. Qumrul Hoque Siddique,
Advocate (with Mr. Nakib
Saiful Islam, Advocate),
instructed by Mr. Minul
Hossain, Advocate-on-Record &
Mr.Md. Taufique Hossain,
Advocate-on-Record.
For the Respondents :
((In C.R.P.No.339/18)
Not represented.
Date of hearing and judgment on : 15.05.2023
J U D G M E N T
Hasan Foez Siddique, C.J: The delay in filing
Civil Petitions for leave to Appeal No.2256 of
2017, 2427 of 2018 and Civil Review Petition
No.339 of 2018 is condoned.
Civil Petitions for Leave to Appeal
Nos.2256 of 2017, 2427 of 2018, 903 of 2023 and
Civil Review Petition No.339 of 2018 have been
heard together and they are being disposed of
by this common judgment and order.
Civil Petition for Leave to Appeal No.2256
of 2017 has been filed against the judgment and
order dated 08.12.2014 passed by the High Court
Division in Writ Petition No.688 of 2014
making the Rule absolute in part and declaring
the notification communicated under memo
No.Avt †Kvt Kt 1/2012/194 dated 16.06.2013 issued
under the signature of an Assistant Secretary, 3
Ministry of Housing and Public Works to have
been issued without lawful authority and is of
no legal effect. By the said order, the
Ministry cancelled its earlier order
communicated under Memo No. Avt‡Kvt Kt 1/2012/239
dated 6th August, 2012, by which, the
Government released the abandoned House
No.139/A, Road No.1(Old), Dhanmondi Residential
Area, Dhaka (hereinafter referred to as
“disputed property”) from the list of Abandoned
Properties. The Ministry, in compliance with
the order passed in Contempt Petition No.146
of 2006 arising out of judgment and order dated
05.04.2006 in Writ Petition No.2653 of 2005 and
judgment and order dated 17.08.2009 passed in
Civil Petition for Leave to Appeal No.2260 of
2008, released the disputed property from the
“Ka” list of the abandoned properties published
in gazette notification, additional page
No.9762(14), Dhanmondi Serial No.1.
Against the order dated 16 th June, 2013,
passed by the Ministry of Housing Settlement
and Works, S. Nehal Ahmed, filing Writ Petition
No.688 of 2014, obtained Rule which was made
absolute in part. Against which, the Government 4
preferred Civil Petition for Leave to Appeal
No.2256 of 2017. Against the same order, the
Government also filed Civil Petition for Leave
to Appeal No.2427 of 2018.
S. Nehal Ahmed, filing Writ Petition
No.2653 of 2005 in the High Court Division,
obtained direction against the Government to
get exclusion of the disputed property from the
“Ka” list of the abandoned properties and also
for getting possession of the same within
2(two) months from the date of receipt of the
judgment and order dated 5th April, 2006.
Against which, the Government preferred Civil
Petition No.2260 of 2008 which was dismissed on
17.08.2009. Against which the Government filed
Civil Review Petition No.339 of 2018.
S. Nehal Ahmed filed Civil Petition for
Leave to Appeal No.903 of 2023 against the
judgment and order dated 21st November, 2022
passed by the High Court Division in Writ
Petition No.9051 of 2018 and Writ Petition
No.7082 of 2015. The government filed writ
petition No.9051 of 2018, against the judgment
and order dated 16th July, 1997 passed by the
First Court of Settlement in Settlement Case 5
No.84 of 1996 (Ka-1, Dhanmondi, Dhaka). In the
said Settlement Case, S. Nehal Ahmed got the
disputed property released from the “Ka” list
of the abandoned properties.
From the aforesaid facts, it appears to us
that the fate of all the matters is to be
decided, regulated and governed by the judgment
and order to be passed in Civil Petition for
Leave to Appeal No.903 of 2023 since the same
arises out of the judgment and order of the
Court of Settlement which was the basic
judgment passed in favour of S. Nehal Ahmed,
for getting release of the disputed property
from the list of abandoned properties. So, we
have decided to narrate the facts of the case
as stated in Civil Petition for Leave to Appeal
No.903 of 2023 arising out of Writ Petition
No.9051 of 2018 and Settlement Case No.84 of
1996.
Facts of the said Settlement case were
that, the Government leased out the disputed
property to one Abdul Hakim Khan by registered
deed of lease No.8378 dated 11.11.1957 who
transferred the same to S. Jamil Akthar, S.
Jalil Akthar and petitioner of Civil Petition 6
No.903 of 2023, namely, S. Nehal Ahmed. It was
the case of S. Nehal Ahmed that his 2(two)
brothers namely, S. Jamil Akthar and S. Jalil
Akhtar gifted the same in his favour (S. Nehal
Ahmed). S. Jamil Akhter and S. Jalil Akhtar by
swearing an affidavit before the Notary Public,
declared that they have gifted their shares of
the disputed property in favour of S. Nehal
Ahmed on 10th January, 1969. After getting
shares of those two brothers, S. Nehal Ahmed
had been possessing the entire disputed
property till he was dispossessed by some
miscreants in 1972. He tried to get the
disputed property released from the list of
abandoned properties but could not succeed.
The disputed property was wrongly included in
the “Ka” list of the abandoned properties.
Thus, S. Nehal Ahmed as claimant filed
Settlement Case No.84/1996 (Kha-1, Dhanmondi,
Dhaka) for getting the disputed property
released from the “Ka” list of the abandoned
properties.
In the Court of Settlement, the Government
contested the said case but without filing any
written reply. It was submitted on behalf of 7
the Government that the whereabouts of the
owners were not traced. S. Nehal Ahmed was also
untraced since the War of Liberation.
Accordingly, the property, in question, had
been included in the “Ka” list of the abandoned
properties.
Mr. Quamrul Hoque Siddique, learned
Advocate appearing for the petitioner in C.P.
No.903 of 2023, submits that the High Court
Division, without proper appreciation of the
materials on record, erroneously reversed the
well reasoned judgment and order of the Court
of Settlement. He submits that the Government
earlier released the disputed property from the
“Ka” list of the abandoned properties pursuant
to the order of the High Court Division,
thereafter, erroneously cancelled the same. He
further submits that the Government officials,
upon consideration of the submitted papers,
came to the conclusion that S. Nehal Ahmed is
not fictitious man and being satisfied as to
his presence in Bangladesh, the Court of
Settlement released the property, in question,
from the list of abandoned properties and
after long lapse of time, the Government 8
challenged the legality and propriety of the
judgment and order of the Court of Settlement
which was not sustainable. He, lastly, submits
that S. Nehal Ahmed is a citizen of Bangladesh
by birth and he never left this country and he
was not untraced after leaving the disputed
house and he has been living at Mohammadpur
area, the observation of the High court
Division that he managed to get some fictitious
papers and got the order of release of the
disputed property is erroneous.
Mr. A.M. Amin Uddin, learned Attorney
General, appearing with Mr. Kazi Moynul Hasan,
learned Deputy Attorney General for the
Government, submits that the High Court
Division scrutinized the papers produced by the
petitioner in the Court of Settlement as well
as in the High Court Division and came to the
conclusion that the petitioner, creating some
fraudulent papers, managed to get the property
released from the Court of Settlement in the
aforesaid Settlement case. He, lastly, submits
that S. Nehal Ahmed is a fictitious person and
all the 3 brothers were untraced since the War
of Liberation and the property, in question, 9
was rightly enlisted in the list of abandoned
properties, the High Court Division upon proper
appreciation of the materials on record, came
to the conclusion that S. Nehal Ahmed got order
of release by practising fraud upon the Court.
It is relevant here to state that this
Division earlier held that onus is on the
claimant of the building to prove that the
building is not an abandoned property. The
Government has no obligation either to deny the
facts as alleged by the claimants or to
disclose the basis of treating the property as
abandoned property merely because the claimant
disputes the same [Government of Bangladesh Vs.
Md. Jalil 15 BLD (AD) 175]. In the application
for getting release of the disputed property
from the list the claimant petitioner admitted
that he was dispossessed from the same in 1972
and it is the case of the Government that all
the three brothers are untraced since the war
of liberation.
Admittedly, Abdul Hakim got lease of
the disputed property by a registered
lease deed dated 11.11.1957. It is the case
of petitioner that Abdul Hakim transferred 10
the disputed land to him and his two
brothers, namely, S. Jamil Akhtar and S.
Jalil Akhtar, by registered kabla deed
No.8656 dated 28.12.1960. His two other
brothers S. Jamil Akhtar and S. Jalil
Akhtar gifted their shares to him and in
support of such oral gift they swore an
affidavit on 10.01.1969 in his favour.
It
is settled principle that when an
instrument of gift is reduced into writing,
the same must be registered. Oral gift is
admissible in the Mohammedan Law and in
order to prove oral gift, offer, acceptance
and delivery of possession of the alleged
gifted land must be established.
At the time of hearing of the instant
matter in the High Court Division, the High
Court Division called for the record of
Settlement Case No.84 of 1996(K-1/avbgwÛ Av/G). We
have also perused the case record of the
Court of Settlement as well. Photocopy of
the application for getting release and
possession of the disputed house as 11
submitted in the Court of Settlement is
reproduced below:
12
13
From the top portion of the first page of
the above produced application, it appears that
the same was allegedly filed on 08.01.1987 but
from the order sheet of the settlement case
record, it appears that the first order was
passed on 13.04.1996. In the case of Begom
Lutfunnessa Vs. Bangladesh reported in 42 DLR
(AD) 86 this Division has observed that the
Abandoned Building (Supplementary Provisions)
Ordinance, 1985 was promulgated on 28 November,
1985 and the list under section 5(1)(a) thereof
was published in the gazette on 28.04.1986.
Section 7 provides that any person claiming any
right or interest in any building which is
included in the list may, within a period of
108 (perhaps 180) days from the date of the
publication of the list in the official gazette
make an application to the Court of Settlement
for exclusion of the building from such list
etc.
We do not find any cogent reason of
passing first order by the Settlement Court on
13.04.1996 inasmuch as the petitioner claimed
that the same was filed on 08.01.1987. In
absence of any order as to the limitation,
passing of first order in 1996 ignoring point 14
of limitation cropped up a question how the
Court of Settlement entertained such case.
We
also did not find any order in the case record,
in respect of extension of time as per
provision of section 11 of the Ordinance.
The
Court of Settlement ignored the point of
limitation holding that the petitioner could
not be deprived of his right to assert his
claim in that forum under the Ordinance. Which
cannot be accepted as proper finding for
avoiding the question of limitation in view of
the provision of Section 7 of the Ordinance.
In the High Court Division, this question was
raised and it was resolved by the High Court
Division with the following words, “Though
respondent No.2 (S. Nehal Ahmed) stated that he
filed the application on 08.10.1987 (Annexure-
C) under section 7 of Ordinance No. LIV of 1985
in the First Court of Settlement, Dhaka but
neither any receipt of filing the said
application on 08.01.1987 has been produced
before this Court nor the said application
depict any endorsement of the First Court of
Settlement, Dhaka with a date”. High Court
Division also observed that in response to the 15
query of the Court, learned Advocate for the
writ respondent No.2 failed to answer the query
in that regard satisfactorily.
High Court
Division finally observed that application
dated 08.01.1987 was subsequently created to
save the limitation. We do not find anything in
the record to disagree with the findings and
observations arrived at by the High Court
Division as to the point of limitation. The
presence of such suspicious circumstances
naturally tends to make the initial onus very
heavy and unless it is satisfactorily
discharged the Court would be reluctant to
treat the document as genuine one.
The date of birth of S. Nehal Ahmed was
shown on 31.03.1940. He produced a photocopy of
aforesaid application in the High Court
Division wherefrom it appears that by
interpolation his date of birth was converted
to 01.03.1940 in place of 31.03.1940 (running
pages 145 and 482 of the paper book of C.P.
No.903 of 2023). From the judgment it appears
that the learned Advocate of the petitioner
admitted in the High Court Division the fact of
tempering his date of birth in the papers
mentioned above. Where an instrument appears to
be materially altered, the law naturally casts
a heavy burden on the party who produced the
same to explain the alteration and show when it 16
was made. Where an alteration appears upon the
face of a document the party producing it must
show that the alteration was made with consent
of the parties. In this case the petitioner
failed to offer any explanation.
From the materials on record, it appears
that on 21.11.1989, he filed an application
addressing the Chairman, Court of Settlement
for getting necessary order pursuant to the
application submitted by him on 08.01.1987. A
Photostat copy of the said application is
reproduced below:
17
The signatures as appeared in the above
produced applications and the signatures of two
brothers of S. Nehal Ahmed appeared in the
affidavit sworn by them, namely, S. Jamil
Akhter and S. Jalil Akhter are required to be
compared with very carefully. Photocopy of
signatures shown in the affidavit S. Jamil
Akhter and S. Jalil Akhter are shown below for
comparison:
Those hand writings of the two brothers
and S. Nehal Ahmed appeared in the above shown
two applications have been compared with very
carefully. The alphabet “S”, “A” and “K” are
very significant. In those three signatures
which appear to us that those are identical.
S. Nehal Ahmed allegedly executed a
vokalatnama for the purpose of using the same
in the Court of Settlement. In the said
Vakalatnama he affixed Court fee of tk.5/- but
we do not find that the same was punched or
cancelled. Section 30 of the Court fees Act,
1870 provides that no document requiring a fee
under the Act shall be filed or acted upon in 18
any proceeding in any Court or office until the
stamp or receipt has been cancelled.
It further appears from the signature of
S. Nehal Ahmed appeared in Vakalatnama
submitted before the Court of Settlement does
not tally with his other signatures appeared
and produced subsequently. Such inconsistencies
are highly doubtful. When we asked Mr. Quamrul
Hoque Siddique, learned Advocate for the
petitioner, about the inconsistencies
particularly, non-punching the court fee
affixed with Vakalatnama and the inconsistent
signatures of S. Nehal Ahmed in different
documents, he said that the said Vakalatnama
might have been subsequently replaced by
removing the original Vakalatnama by the
interested parties. But it appears from the
Vokalatnama that one M.A. Sarwar, a learned
Advocate put his signature in the said
Vakalatnama accepting the same for S. Nehal
Ahmed and his name has been mentioned in the
judgment of the Court of Settlement. The High
Court Division observed that signatures of S.
Nehal Ahmed in the Vokalatnama filed in Writ
Petition No.688 of 2014 and the affidavit 19
sworn in Writ Petition No.688 of 2014 are also
not similar. The whole attempts appear to be
highly suspicious one. In such circumstances,
it is difficult to accept the submission of Mr.
Siddique that the Vakalatnama was subsequently
replaced in the case record of the Court of
Settlement by replacing another one.
Since the
Vakalatnama alleged to have been executed by S.
Nehal Ahmed submitted in the Court of
Settlement is doubtful one, we are of the view
that the instant case for getting release of
the disputed property and the judgment and
order passed in the said case showing S. Nehal
Ahmed as petitioner of the Settlement case is
not liable to be approved and upheld
. Someone
claiming himself S.Nehal Ahmed, by practising
fraud upon this Court, tried to manage the
order and he successfully did so.
It is relevant here to state that one Toha
Khan and 8 others earlier filed Case No.408 of
1989 (Ka-11-Dhanmondi Residential Area, Dhaka)
in First Court of Settlement, Dhaka and the
first Court of Settlement presided by Justice
Abdul Bari Sarkar, by a judgment and order
dated 15th December, 1992, dismissed the same 20
observing that, “it is clear th at the
whereabouts of S. Jamil Akhtar, S. Jalil Akhtar
and Nehal Ahmed, the Vendee of Abdul Hakim Khan
are not known and the case building was rightly
declared as abandoned property and included in
the list correctly. On 16.07.1997, same Court
of Settlement in case No.84 of 1996 (Kha-1,
Dhanmondi, Dhaka) has passed the impugned
judgment and order without stating any single
word about the consequence of its earlier
finding.
A Court must give reasons for its
decision in a case. The reasons should include
an explanation of why the Court has chosen to
follow or not to follow a previous decision
which is identical before it. When an earlier
decision is not followed it is said to be
distinguished from the earlier case.
The
earlier finding of the Court of Settlement and
presumption that enlistment of a building under
section 5(1) of the Ordinance that the property
is an abandoned property and admission of the
claimant petitioner that he was dispossessed
from the disputed property in 1972 and
discussions made above clearly established that
S. Jamil Aktar, S. Jalil Aktar and S. Nehal 21
Ahmed could not occupy, manage or supervise the
disputed property when P.O.16 of 1972 came into
operation.
From the papers produced in C.P. No.2427
of 2018 it appears that some important pages of
a document in connection with the disputed
property were removed from the office of
Housing Settlement and Works.
Considering the aforesaid facts and
circumstances, we do not find any illegality in
the judgment and order of the High Court
Division which call for any interference by
this Division.
Accordingly, the Civil Petition for Leave
Appeal No.903 of 2023 is dismissed.
Civil Petition for Leave to Appeal No.2256
of 2017, 2427 of 2018 and Civil Review Petition
No.339 of 2018 are to be governed and disposed
of in the light of the judgment and order
passed by this Division in Civil Petition for
Leave to Appeal No.903 of 2023 and following
the consequences and result of the civil
petition.
C. J.
J.
J.
The 15th May, 2023.
words-3399/
|
1
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Hasan Foez Siddique, Chief Justice.
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1328 of 2023.
(From the judgment and order dated 15.03.2023 passed by the High Co urt
Division in Writ Petition No.3185 of 2023).
Advocate M.A. Aziz Khan ..........Petitioner.
-Versus-
The Election Commission of Bangladesh,
represented by the Chief Election
Commissioner, Nirbachan Bhaban (7th -8 th
Floor), Agargaon, Dhaka-1207 and another.
.......Respondents.
For the Petitioner
(In person)
: Mr. Advocate M.A. Aziz Khan, in person, instructed
by Ms. Mahmuda Begum, Advocate-on-Record.
For the Respondents : Mr.A.M. Amin Uddin, Attorney General (with
Mr.Mohammad Mehedi Hassan Chowdhury,
Additional Attorney General and Mr. Khan
Mohammad Shamim, Advocate) instructed by Mr.
Haridas Paul, Advocate-on-Record.
Date of hearing : The 18th May, 2023
JUDGMENT
Hasan Foez Siddique, C. J:
The petitioner, who is a learned Advocate of this Court, fil ed Writ
Petition No.3185 of 2023 in the High Court Division under Article
102(2)(ii) of the Constitution of the People’s Republic of Bangladesh
with a prayer for issuance of Rule Nisi calling upon the writ r espondents
to show cause as to why the scrutiny of nomination paper of t he sole
presidential candidate Mr. Md. Shahabuddin under Section 7 of the 2
Presidential Election Act, 1991 declaring him eligible and elected as
single candidate and the Notification No.17.00.0000.034.34. 025.22-119
dated 13 February, 2023 (Annexure-“A” to the writ petition) should not
be declared to have been made without any lawful authority and should
not be regarded as null and void and is of no legal effect.
Judicial review in election dispute is not a compulsion. Since the
separation of powers is a basic feature of the Constitution and, ther efore,
every dispute involving the adjudication of legal rights must be left to
the decision of the judiciary. In the writ petition, the petiti oner did not
make any allegation that his any legal right has been infringed. I n the
writ petition, the writ petitioner took two grounds for getti ng relief as
prayed for, which are:
“I. For that the respondents failed to act in accordance with law
while scrutinizing the nomination paper under section 7 of the
Presidential Election Act, 1991 (Act 27 of 1991) read with article
119(1)(a) of the Presidential election (?) and got the election
flawed for misinterpretation of law hitting the qualification of the
sole candidate under section 9 of the ACC Act, 2004 read with
article 66(2)(g) of the Constitution rendering the Notification
No.17.00.0000.034.34.025.22-119 dated 13 February 2023
declaring Mr. Shahabuddin Ahmed(?) as president elect void and
illegal,
II. For that the CEC fell into serious error of law and
misinterpreted the law by not holding the words “appoint” and
“elect” synonymous and interchangeable as means to hold a public
“post” or “office” in the republic and failed to disqualify the
nomination of the sole candidate Mr. Shahabuddin Ahmed(?) as
required by the Constitution and other laws.”
The High Court Division, by the impugned judgment and order
dated 15 th March, 2023, rejected the said petition along with Writ 3
Petition No.3144 of 2023 summarily. Thus, the writ petitioner has filed
this leave petition.
Advocate M.A. Aziz Khan, appearing, in person, in support of the
civil petition, submits that the Office of the President is an office of
profit of the Republic and that earlier Md. Shahabuddin had been
performing his duty as Commissioner of `ybx©wZ `gb Kwgkb (the
Commission) so he was disqualified to participate in the electi on for
post of President of the Republic in view of the provision of Section 9
of the Durniti Domon Commission Ain, 2004 (the Ain). It has been
submitted that in the absence of any legislation or constitutional
provision to remove the disqualification of Md. Shahabuddin contained
in section 9 of the Ain read with article 66(2) (g) of the Constitution, his
election was illegal.
Some provisions of laws, relevant for the disposal of the p etition,
are quoted below:
Section 9 of the Ain, provides the following provision: ÒKg©vemv‡bi
ci †Kvb Kwgkbvi cªRvZ‡š¿i Kv‡h© †Kvb jvfRbK c‡` wb‡qvM jv‡fi †hvM¨ nB‡eb bv Ó|
(underlined by us)
Any person seeking to contest in the election to the Office of the
President must satisfy the certain eligibility criteria stipu lated in the
Constitution under article 48 clause 4 which provides as follows:
“(4) A person shall not be qualified for election as President if he-
(a) is less than thirty-five years of age; or
(b) is not qualified for election as a member of Parliament; or 4
(c) has been removed from the office of President by
impeachment under this Constitution.”
Article 66 of the Constitution provides,
“66.(1) A person shall subject to the provisions of clause (2),
be qualified to be elected as, and to be a member of
Parliament if he is a citizen of Bangladesh and has attained
the age of twenty-five years.
(2) A person shall be disqualified for election as, or for
being a member of Parliament who-
(a) is declared by a competent court to be of unsound
mind;
(b) is an undischarged insolvent;
© acquires the citizenship of , or affirms or
acknowledges allegiance to, a foreign state;
(d) has been, on conviction for a criminal offence
involving moral turpitude, sentenced to imprisonment for a
term of not less than two years, unless a period of five years
has elapsed since his release.
[(e) has been convicted of any offence under the
Bangladesh Collaborators (Special Tribunals) Order, 1972;
(f) holds any office of profit in the service of the
Republic other than an office which is declared by law not to
be disqualified its holder; or
(g) is disqualified for such election by or under any
law.
[(2A) Notwithstanding anything contained in sub-clause(c) of
clause (2) of this article, if any person being a citizen of
Bangladesh by birth acquires the citizenship of a foreign
State and thereafter such person-
(i) in the case of dual citizenship, gives up the foreign
citizenship; or 5
(ii) in other cases, again accepts the citizenship of
Bangladesh-
for the purposes of this article, he shall not be deemed to
acquire the citizenship of a foreign State]
[(3) For the purposes of this article, a person shall not be
deemed to hold an office of profit in the service of the
Republic by reason only that he is the President, the Prime
Minister, the Speaker, the Deputy Speaker, a Minister,
Minister of State or Deputy Minister]
(4)If any dispute arises as to whether a member of Parliament
has, after his election, become subject to any of the
disqualifications mentioned in clause (2) or as to whether a
member of Parliament should vacate his seat pursuant to
article 70, the dispute shall be referred to the Election
Commission to hear and determine it and the decision of the
Commission on such reference shall be final.
(5) Parliament may, by law, make such provision as it deems
necessary for empowering the Election Commission to give
full effect to the provisions of clause (4).”
The sole contention of the petitioner rests on the ground that si nce
Mr. Md. Shahabuddin will hold the office of profit in the service of the
Republic, he was not qualified to participate in the election for the post
of the President of the Republic in view of the provision of se ction 09 of
the Ain.
Now the question arises as to whether the office of the Presid ent
of the People’s Republic of Bangladesh is an office of Profit in the
Service of the Republic or not.
Article 66(3) of the Constitution states that for the purposes of this
article, a person shall not be deemed to hold an office of profit in the
service of the Republic by reason only that he is the Preside nt, the Prime 6
Minister, the Speaker, the Deputy Speaker, a Minister, Minister of State
or Deputy Minister. As per article 66(3) of the Constitutio n, for the
purpose of election as a member of Parliament, office of the Presi dent
shall not be deemed to be office of the profit in the service of the
Republic.
Like our Constitution, article 102 (1) (a) of the Constitution of
India provides that a person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament if he holds any
office of profit under the Government of India or the Government of any
State, other than office declared by Parliament by law not to disqualify
its holder. Article 58(1) of the Constitution of India also pr ovides that no
person shall be eligible for election as president unless (a) he is a citizen
of India, (b) has completed the age of thirty-five years, and (c) is
qualified for election as a member of the House of the People. Article
58(2) of the Constitution of India provides that a person shall not be
eligible for election as president if he holds any office of pr ofit under the
Government of India or the Government of any state or under any l ocal
or other authority subject to the control of any of the said Governments.
Explanation to article 58 of the Constitution of India provides that for
the purposes of this article, a person shall not be deemed to hold any
office of profit by reason only that he is the President or Vice-President
of the Union or the Governor of any State or is a Minister eithe r for the
Union or of any State. In Bangladesh the term office of profit has not
been categorically defined in the General Clauses Act, 1897 or in the
Constitution. In India the term office of profit has not got uniform
definition. Therefore, this term became subject of judicial i nterpretation
at different times. This term has been defined in various ways in 7
different cases depending upon the facts and circumstances of each case.
Let us have an overview of cases in which this term has been explained.
In the case of Purno Agitok Sangma Vs. Pranab Mukherjee [AIR
2013 Supreme Court 372] respondent’s election to the post of President
was challenged for holding office of profit under government and it was
held that the Office of the Chairman of the Indian Statistical Institute
was not an office of profit since neither any salary nor honor arium or
any other benefit attached to the holder of the said post. It was not such a
post which, in fact, was capable of yielding any profit, which could
make it, in fact, an office of profit. The term “office” has nowhere been
expressly defined. Generally, an “office” refers to an employment which
is permanent in nature. In order to be an office of profit, th e office must
carry various pecuniary benefits or must be capable of yielding
pecuniary benefits such as providing for official accommodation or even
a chauffeur driven car, which is not so in respect of the post of Chairman
of the Indian Statistical Institute, Calcutta.
In the case of K. B. Rohamare Vs. Shankar Rao [AIR 1975
Supreme Court 575] first respondent’s election to Maharashtra State
Legislative Assembly was challenged and it was held that a member of
the Wage Board, Sugar Industry, Constituted by the Maharashtra
Government under section 86-B of the Bombay Industrial Relations Act,
1946, undoubtedly holds an office under the State Government. The law
regarding the question whether a person holds an office of profit should
be interpreted reasonably, having regard to the circumstances of the case
and the times with which one is concerned, as also the class of person s
whose case the court is dealing with and not divorced from reali ty. The 8
question has to be looked at in a realistic way. Merely because par t of
the payment made to the member is called honorarium and part of the
payment daily allowance, the court cannot come to the conclusion that
the daily allowance is sufficient to meet his daily expenses and the
honorarium is a source of profit. We are thus satisfied that the first
respondent did not hold an office of profit.
In the case of Madhukar G. E. Pankakar Vs. Jaswant Chobbildas
Rajani and others [AIR 1976 Supreme Court 2283] it was held that a
Medical Practitioner working as a Panel doctor appointed under the
Employees’ State Insurance Scheme does not hold “office of profit”
under the State Government, so as to attract disqualification under
section 16 (1) (g) of the Maharashtra Municipalities Act. How proximate
or remote is the subjection of the doctor to the control of the
Government to bring him under Government is the true issue. Indirect
control, though real, is insufficient. Medical Practitioner w orking as a
Panel doctor appointed under the Employees’ State Insurance Scheme
was held not to hold “office of profit” under the State Government
mainly on the ground that the subjection of the aforesaid doctor to the
control of the Government was remote.
In the case of Ashok Kumar Bhattacharyya Vs. Ajay Biswas and
others [AIR 1985 Supreme Court page 211] election of respondent no 1
to Tripura State Legislature was challenged and it was held that the
Accountant-in-Charge of Agartala Municipality does not hold office of
profit under the Government of Tripura since under the Bengal
Municipal Act, 1932 the State Government does not exercise any control
over officers like Accountant-in-Charge respondent no 1 and that he 9
continues to be an employee of the Municipality though his appointment
is subject to the confirmation by the Government.
In the case of Shibu Soren Vs. Dayanand Sahay [AIR 2001SC
page 2583] election of the appellant to Jharkhand Rajya Sabha was
challenged and it was held that the appellant (Chairman of Interim
Jharkhand Area Autonomous Council) was holding an office of profit
under the State Government. The State Government not only had the
exclusive jurisdiction to appoint (nominate) the Chairman of Interim
JAA Council but also power to remove him since under Section 23(7) of
the JAAC Act, the Chairman and Vice-Chairman of the Interim JAA
Council, as well as members of the Interim Executive Council, “shall
hold their office during the pleasure of the State Government”.
We find that in the cases of Madhukar G. E. Pankakar Vs. Jaswant
Chobbildas Rajani and others [supra], Ashok Kumar Bhattacharyya Vs.
Ajay Biswas and others [supra] and Shibu Soren Vs. Dayanand Sahay
[supra] Supreme Court of India was of the view that whether a service
was under the Central or state Government has to be determin ed in the
light of the control the Government exercises on that service. R emote
control on the service was not sufficient to bring that servic e under the
Government.
In Shivamurthy Swami Inamdar V. Agadi Sanganna Andanappa
(1971) 3 SCC 870 it was held that
the tests for finding out whether an
office in question is an office under the Government and whether it is an
office of profit, are (1) Whether the Government makes the appointment,
(2) Whether the Government has the right to remove or dismiss th e
holder; (3) Whether the Government pays the remuneration; (4) What 10
are the functions of the holder? Does he perform them for the
Government and (5) Does the Government exercise any control over the
performance of these functions?
In the case of Madhukar G. E.
Pankakar Vs. Jaswant Chobbildas Rajani and others [supra] there was
also discussion about the same tests as laid down in Shivamurthy Swami
Inamdar V. Agadi Sanganna Andanappa (supra) for determining office
of Profit under Government.
In the case of Purno Agitok Sangma V. Pranab Mukherjee
(Supra), it was observed that the expression “office of profit” had not
been defined in the Constitution. It was further observed that the fir st
question to be asked in this situation was as to whether the Government
has power to appoint and remove a person on and from the office and if
the answer was in the negative, no further inquiry was called for.
However, if the answer was in the positive, further inquires would have
to be conducted as to the control exercised by the Government over t he
holder of the post. Since the Government does not have the control on
appointment, removal, service conditions and functioning of the
President, the President does not hold an office of profit in the service of
the Republic.
The term “cªRvZ‡š¿i Kvh©Ó has not been defined in the Ain. Since the
term has not been defined in the Ain, we can look for the definitio n in
the General Clauses Act, 1897. Section 3(50) of the General clauses act,
1897 defines that “the service of the Republic” means any service, po st
or office whether in a civil or military capacity, in respect of the
Government of Bangladesh, and any other service declared by law to be
a service of the Republic”. Service of the Republic defined in section 11
3(50) of the General Clauses Act, 1897 has got same connotations as in
article 152 of the Constitution.
We are of the view that since the term
“cªRvZ‡š¿i Kvh©Ó has not been defined in the Ain and the same has
identically been defined in the General Clauses Act, 1897 and in Art icle
152 of the Constitution, legislature intended that the term “ cªRvZ‡š¿i Kvh©Ó
would have the same meaning as in the General Clauses Act, 1897 and
Article 152 of the Constitution.
The Legislature is presumed to have
been aware of the existing Law [Md. Abdus Sattar Howladar Vs. Sub-
Registrar and others 29 DLR 320] and there is a presumption that the
legislature does not intend to make a change in the existing law beyond
what is expressly provided or which follows by necessary implication
from the language of the statute in question [River Wear Commis sioners
Vs. Adamson, (1877) 1QBD 546; National Assistance Board Vs.
Wilkinson,( 1952) 2QB 648]. It is thought to be in the highest degree
improbable that Parliament would depart from the general system of law
without expressing its intention with irresistible clearness, and to give
any such effect to general words merely because this would be their
widest, usual, natural or literal meaning would be to place on t hem a
construction other than that which Parliament must be supposed to have
intended (Maxwell-Interpretation of Statutes, 12 ed., p. 116).
Even if the
Ain contained a different definition of “ cªRvZ‡š¿i Kvh©Ó, the definition of
“cªRvZ‡š¿i Kvh©Ó as contained in article 152 of the Constitution would have
got primacy over the definition of “ cªRvZ‡š¿i Kvh©Ó in the Ain, the
Constitution being the supreme law of the land.
In order to determine whether the office of the President i s an
office of profit in the Service of the Republic we meticulously need to go 12
through Part IX of the Constitution. Chapter I of this part dea ls with
services of the Republic. Subject to the provision of the Const itution
Parliament may by law regulate the appointment and conditions of
service of persons in the service of the Republic (article 133). It shall be
competent for the President to make rules regulating the appoi ntment
and the conditions of service of such persons until provision in that
behalf is made by or under any law, and rules so made shall have effect
subject to the provisions of any such law (proviso to article 133). T his
kind of rules framed by the President regulating the appointment and the
conditions of service of the persons in the service of the R epublic is
called as special executive legislation in Constitutional Jurisprud ence.
The Government Servants (Conduct) Rules, 1979 and “miKvix Kg©Pvix
(k„•Ljv I Avcxj) wewagvjv, 2018Ó are the examples of such rules framed by
the President. Cadre officers in the Service of the Republic are appointed
through Public Service Commission (article 140). Chairman and
members of the Public Service Commission are appointed by the
President (article 138). Except as otherwise provided by the
Constitution every person in the service of the Republic shall hold office
during the pleasure of the President (article 134). As per the
abovementioned Constitutional Provision President is the appointing
authority of the persons in the Service of the Republic and every person
in the service of the Republic holds office during the pleasure of the
President except as otherwise provided by the Constitution.
Hypothetically, if president of the Republic falls within t he category of
persons in the service of Republic, he can hold office during his o wn
pleasure as per article 134. But it is impossible on the ground that 13
President can be removed by impeachment by two thirds majority of the
total members of Parliament (Article 52 and 53 of the Constitution).
From the discussions made above, it appears that a president
candidate of the People’s Republic of Bangladesh shall have to be
qualified for election as a member of parliament. A member of
Parliament candidate in Bangladesh cannot simultaneously hold any
office of profit in the service of the Republic other than an office which
is declared by law not to be disqualified its holder.
As per provision of
Article 152 of the Constitution, “the service of the Republic” means any
service, post or office whether in a civil or military capacity, in respect
of the Government of Bangladesh, and any other service declared by la w
to be a service of the Republic. Sole Presidential Candidate Mr. Md.
Shahabuddin does not hold any office of profit in the service of the
Republic as per the definition provided in Article 152 of the
Constitution. Therefore, he is qualified for election to be a member of
the Parliament.
It is the authority of the Government to appoint a person to any
office of profit or, to revocate his appointment at their discretio n and to
pay out of the Government revenues, though the source of payment w as
held not to be always a decisive factor. In the case of President of the
People’s Republic of Bangladesh, Government of Bangladesh cannot
appoint President. Removal procedure of the President is also very
stringent since he can be removed by impeachment by two thirds
majority of the total members of Parliament (Article 52 and 53 of the
Constitution). Government cannot remove president at its will since
Government may be formed by simple majority of the members of 14
Parliament [article 56 of the Constitution]. So from the point of view of
control over the President by the Government, the office of t he President
can in no way be termed as office of profit in the Service of the Republic
in respect of the Government. This position was also recognized in the
case Abu Bakkar Siddique Vs. Justice Shahabuddin Ahmed and Others
reported in 49 DLR (HCD) page 1. In this case it has been categorically
held that the office of the President of the Republic is not an office in the
service of the Republic in respect of the Government of Bangladesh.”
The question is who are parties to an election petition and who
may be impleaded as parties to an election petition. In the case of J yoti
Basu and others V. Debi Ghosal and others reported in AIR 1982 SC
983 it was observed that the nature of the right to elect, the right to be
elected and the right to dispute an election and the scheme of the
Constitutional and statutory provisions in relation to these rights have
been explained by the Court in N.P. Ponnuswami V. Returning Officer
(AIR 1982 SC 983) and Jagan Nath V. Jaswant Singh (1982 SCC Vol.
page 691). We proceed to state what we have gleaned from what has
been said, so much as necessary for the case.
A right to elect, fundamental right is to democracy, is,
anomalously enough, neither a fundamental right nor a common Law
Right. It is pure and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside of statute, “there
is no right to elect, no right to be elected and no right to dispute an
election.” The Supreme Court of India in the case of Dr. N. B. Khare-II
V. Election Commission (AIR 1958 SC 139) held that the right to stand
for the election and the right to move for setting aside the election are 15
not common law rights. It was further held that the right of the person to
file the application for setting aside an election must be determin ed by
the statute. In the case Charan Lal Sahu V. Shri Fakharuddin Ali Ahmed
reported in AIR 1975 SC 1288 it was observed that since candidature of
Mr. Lahu was rejected he had no locus-standi to file election petition.
Mr. Md. Shahabuddin was not even impleaded in the writ petition
and present leave petition which seems to be a violation of the princip les
of natural justice. It is to be mentioned here that the electi on of Pranab
Mutherjee, former President of India, was challenged in the Supreme
Court of India in the case of Purno Agitok Sangma Vs. Pranab
Mukherjee [AIR 2013 Supreme Court 372], wherein Pranab Mukherjee
was impleaded as respondent. In the case reported in 49 DLR (HCD)
page 1 Justice Shahabuddin Ahmed was impleaded as respondent No.1.
Since in the writ petition the interest of Md. Shahabuddin was going to
be affected directly, he was a necessary party.
It is regrettable that the writ petition challenging the elect ion of
the High office of the Pre sident of the People’s Republic of Bangladesh
should not be filed in a fashion as cavalier. It is upon the writ petitioner
to make out a clear case for interference in his pleadings. Any casual
negligent or cavalier approach in such serious and sensitive matter
involving great public importance cannot be countenanced or glossed
over too liberally as for fun.
The domain and the extent of the writ jurisdiction under article
102 of the Constitution is very limited. With a few notable exce ptions
when the High Court Division has considered the matter as an espec ially 16
exceptional circumstance and in the case it entertained such petition for
examination. It usually declined to entertain the election matter.
Accordingly, this petition is dismissed with a cost of taka
1,00,000/- (one lac). The leave petitioner is directed to deposit cost in the
relevant head of the Republic exchequer within 2(two) weeks from the
date of receipt of the order.
C. J.
J.
J.
J.
J.
J.
J.
J.
The 18th May, 2023
H/word-4400/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS.202-203 OF 2014 with C.P. Nos.1257-1258
of 2023.
(From the judgment and decree dated 19.05.2011 passed by the
High Court Division in Writ Petition No.5864 of 2000 and 6442 of
2008)
Raihana Shafi being dead her heirs:
Monir Ahmed and others :
Appellant
(C.A.202-203/2014)
Government of Bangladesh, represented
by the Secretary, Ministry of Works:
Petitioner
(C.P.1257-58 of 2023)
=Versus=
Chairman, First Court of Settlement,
Segunbagicha, Dhaka and others :
Respondents.
(C.A. No.202-203/14)
Hasibur Rahman Chowdhury and others : Respondents.
(C.P.Nos.1257-58 of 2023)
For the Appellant :
(In both the appeals)
Mr. Probir Neogi, Senior
Advocate with Mr. Shishir
Kanti Majumder, Advocate, Mr.
Khandokar Reza-E-Raqiub,
instructed by Mr. Md.
Taufique Hossain, Advocate-
on-Record.
For the petitioner :
(In both C.P.1257-1258/23)
Mr. Sheikh Mohammad Morshed,
Additional Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
For the Respondent No.1-2:
(In both the appeals)
Mr. Sheikh Mohammad Morshed,
Additional Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
For the respondent No.3:
(In both the appeals)
Mr.A.B.M. Siddiqur Rahman
Khan, Advocate, instructed by
Mr. Mohammad Ali, Advocate-
on-Record.
Respondent :
(In C.P.1257-1258 of 2023)
Not represented
Date of hearing on : 07.03.2023, 14.03.203,
05.04.2023 and 10.05.2023
Date of judgment on : 17.05.2023
2
J U D G M E N T
Hasan Foez Siddique, C.J: The delay in filing
Civil Petitions for Leave Appeal Nos.1257 of
2023 and 1258 of 2023 is condoned.
Civil Appeal Nos.202 of 2014, 203 of 2014
and Civil Petitions for Leave to Appeal
Nos.1257-1258 of 2023 are heard analogously and
they are being disposed of by this common
judgment and order.
One Abul Hashem and Monir Ahmed filed
Settlement Case No.14 of 1991 (Ka: Sl. 18,
P.9762(11) in the First Court of Settlement,
Dhaka for getting release of the House No.21,
Larmini Street, Sutrapur, Dhaka stating that
one Hamidunnessa was the owner of the disputed
property who gifted the same to Kaser Ali.
Kaser Ali brought Money Suit and got decree and
in execution case arising out of the decree, he
purchased the disputed property and obtained
sale certificate. Kaser Ali died leaving two
sons. The petitioners of Settlement Case
claimed their title and possession in the
disputed land through Kaser Ali. The Court of
Settlement disbelieved the documents produced
by Abul Hashem and another and dismissed the
case by a judgment and order dated 01.10.1993 3
holding that the disputed property belonged
Hamidunnessa and Hasibur Rahman. They had been
possessing the same as their own property till
December, 1971. Thereafter, they left their
house and their whereabouts were not traced.
One Hasibur Rahman Chowdhury, claiming himself
as son of Hamidunnessa, filed review petition
for reviewing the judgment and order dated
01.10.1993 in the said case. The Court of
Settlement, by its order dated 10.10.2000,
rejected the said application for review
holding that in the aforesaid settlement case
Hasibur Rahman was not party so the instant
review petition was not maintainable. Against
the said order dated 10.10.2000 passed in
Settlement Case No.14 of 1991 by the Court of
Settlement, Hasibur Rahman Chowdhury filed Writ
Petition No.5864 of 2000 in the High Court
Division and obtained Rule.
Hasibur Rahman Chowdhury also filed Writ
Petition No.6442 of 2008 in the High Court
Division, against the execution of sale
agreement and order of allotment in favour of
writ respondent No.3 Raihana Shafi by the
Government in respect of the disputed land and
obtained Rule. 4
The High Court Division heard the Writ
Petition No.5864 of 2000 and Writ Petition
No.6442 of 2008 analogously and disposed of by
common judgment dated 19.05.2011.
The High Court Division made the Rule
absolute issued in Writ Petition No.5864 of
2000 and set aside the judgment and orders
dated 10.10.2000 and 21.10.1993 passed by the
Court of Settlement in Settlement Case No.14 of
1991. It disposed of the Writ Petition No.6442
of 2008. The High Court Division sent back the
case on remand to the Court of Settlement with
direction to dispose of the case within 4(four)
months.
Against the aforesaid judgment and order,
writ respondent No.3 appellant has filed Civil
Appeal No.202 of 2014 and 203 of 2014 in this
Division upon getting leave and Government
filed Civil Petitions for Leave to Appeal
Nos.1257 of 2023 and 1258 of 2023.
Mr. Probir Neogi, learned Senior Advocate
appeared for the appellant Raihana Shafi in
both the appeals and Mr. Sheikh Mohammad
Morhsed, learned Additional Attorney General
appeared on behalf of the Government in the
aforesaid two leave petitions. On the other 5
hand, Mr. A.B.M. Shiddiqur Rahman Khan, learned
Advocate appeared for the respondent Hasibur
Rahman Chowdhury in all the appeals and
petitions. Raihana Shafi claimed possession of
the disputed property upon getting allotment
from the Government. In fact, the submissions
of Mr.Probir Neogi and Additional Attorney
General are identical.
They submit that the writ petitioner
Hasibur Rahman Chowdhury is a fictitious man
and the petitioners of the Settlement Court,
namely, Abul Abul Hashem and Monir Ahmed,
preparing some fake papers and taking the
opportunity of the finding of the Court of
Settlement that Hamidunnessa and Hasibur
Rahman Chowdhury are owners of the property, in
question, have filed instant writ petition
behind the back in order to grab the abandoned
property. They submit that the High Court
Division committed error of law in setting
aside the order passed in review petition
though there is no application of the Code of
Civil Procedure in disposing of the litigation
before the Court of Settlement. They add that
the Court of Settlement rightly rejected the
review petition, since the same was not 6
maintainable. Their further submission was that
the High Court Division has committed a
fundamental error of law in directing the Court
of Settlement to proceed with the Settlement
Case again at the instance of so called Hasibur
Rahman Chowdhury though in Settlement case the
provision of order 1 Rule 10 of the Code of
Civil Procedure has no application. They,
lastly, submit that the High Court Division, in
fact, has given new life of the settlement
case, thereby, allowed the Hasibur Rahman
Chowdhury to ventilate his grievance inasmuch
as his claim, by filing before the Court of
the Settlement, is hopelessly barred by
limitation.
Mr. A.B.M. Siddiqur Rahman Khan, learned
Counsel appearing for the respondent Hasibur
Rahman Chowdhury in both the appeals and the
civil petitions, submits that Hasibur Rahman
Chowdhury and his mother Hamidunessa who are
the admitted owners of the property, in
question, have been and has been living in
different places in Bangladesh. In the papers
produced by him clearly proved that Hashibur
Rohman Chowdhury is a citizen of Bangladesh so
he is entitled to get release of the disputed 7
property, the High Court Division rightly
remanded the case to the Court of Settlement
allowing him to ventilate his grievance and
there is no error in the judgment and order of
the High Court Division.
It is not disputed that the Hasibur Rahman
Chowdhury did not file any case in the Court of
Settlement for getting release of the disputed
property from “Ka” list of the abandoned
properties which was published in the
Bangladesh Gazette on 23.09.1986 [Ka list in
serial No.118 page 9762 (11)]. He filed an
application for reviewing the judgment and
order dated 31.10.1993 passed by the Court of
Settlement in Settlement Case No.14 of 1991
filed by one Abul Hashem and Monir Ahmed.
That
review application was filed on 10.10.2000,
that is, after about 7(seven) years after
disposal of the said settlement case and about
14(fourteen) years after the aforesaid gazette
notification inasmuch as time limit for filing
any settlement case provided in section 7 of
the Abandoned Buildings (Supplementary
Provisions) Ordinance, 1985 was only 108 days.
The Ordinance does not permit third party to
file review petition against the judgment and 8
order passed by the Court of Settlement after
disposal of the same.
It further appears that Hasibur Rahman
Chowdhury, filing Writ Petition No.6442 of
2008, challenged the execution of the sale
agreement and allotment of the disputed
property in favour of Raihana Shafi by the
Government. In this writ petition, he did not
pray for getting release of the property from
the “Ka” list of the abandoned properties. The
said writ petition was disposed of without any
specific result considering the prayer made in
the said writ petition. That is, Hasibur Rahman
Chwodhury accepted the judgment and order
passed in Writ Petition No.6442 of 2008.
Allottee Raihana Shafi preferred the aforesaid
two appeals against the judgment and order of
the High Court Division.
The only question which is to be
considered as to whether the High Court
Division rightly allowed Hasibur Rahman
Chowdhury to ventilate his grievance in the
Court of Settlement in the Settlement Case
filed by Abul Hashem and another or not.
The
law does not provide any provision to review a
judgment and order passed by the Court of 9
Settlement at the instance of third party whose
claimed, if any, is barred by the provision of
limitation. Section 10 of the Ordinance
specifically provides that except as otherwise
provided in the Ordinance, the provisions of
the Code of Civil Procedure shall not apply to
a Court of Settlement and Sub-section (2) of
Section 10 limits the area of the applicability
of the Code of Civil Procedure. The Court of
Settlement is not a Civil Court and its
authority is to determine as to whether the
disputed property is abandoned property or not.
The provisions of the Code of Civil Procedure
should be applicable in respect of summoning
and enforcing the attendance of any person and
examining him on oath; requiring the discovery
and production of any document; requiring
evidence on affidavit; requisitioning any
public record or copy there of from any office;
and issuing commissions for the examination of
witnesses or documents. In such view of the
matter a question stands on the way as to the
entertainability of the application under Order
1 Rule 10 of the Code of Civil Procedure for
adding the applicant as claimant to get release 10
of abandoned property filed by other party
making different pleading. Our view is “no”.
In the application for getting release of
disputed property filed by Abul Hashem and
another from the list of abandoned properties
there is little scope to get relief by Hasibur
Rahman since the source of claim made by them
in the said case is quite different. In that
application for getting release of the disputed
property it is difficult for Hasibur Rahman
Chowdhury to establish that he is a citizen of
Bangladesh and he was present in Bangladesh and
his whereabouts is known or he has not ceases
to occupy, supervise or manage in person of his
property. Without amending the contents of the
claim made by Abul Hashem and another in the
Settlement Case it is almost impossible to get
any relief in the said case. It is more
difficult for the reason that applicability of
the provisions of Civil Procedure Code is very
limited.
It appears from the papers produced by
Hasibur Rahman Chowdhury that he claimed that
sometimes he lived at Keknasar Khabari,
Sirajdikhan, sometimes at 28/2 Dakkhin
Mukdapara, sometimes at Jouripur Lane, Sutrapur 11
of Ward No.77, Dhaka which created a doubt
about his identity and his claim that earlier
any point of time he had been living in the
disputed property, that is, at House No.21,
Larmini Street, Wari, Sutrapur, Dhaka.
Considering the aforesaid facts and
circumstances, we find force in the submissions
made by of Mr. Probir Neogi and learned
Additional Attorney General.
Thus, both the appeals are allowed. The
judgment and order dated 19.05.2011 passed by
the High Court Division in Writ Petition
No.5864 of 2000 (heard analogously with Writ
Petition No.6442 of 2008) are set aside. The
Civil Petitions for Leave to Appeal Nos.1257-
1258 of 2023 are disposed of in the light of
judgment and order passed in appeals.
C.J.
J.
J.
The 15th May, 2023.
/words-2004/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice Md. Nuruzzaman
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NOS.11-15 OF 2008.
(From the judgment and order dated 29.03.2006 passed by the
High Court Division in W.P. Nos.3942 of 2005, 3943, 3944, 3945
and 5217 of 2005)
The Commissioner of Customs,
Customs Excise and VAT
Commissionerate Dhaka (South) Dhaka
and others.
Appellants.
(In all the appeals)
=Versus=
Syed Nurul Arefeen : Respondent.
(In C.A.No. 11-14/2008)
Md. Nasiruddin Respondent
(In C.A. No.15/2008)
For the appellants :
(In all the appeals)
Mr. A.M. Aminuddin, Attorney
General (with Ms. Abanti
Nurul A.A.G), instructed by
Mr. Haridas Paul, Advocate-
on-Record.
For the Respondent :
(In all the appeals)
Mr. A.F. Hassan Ariff, Senior
Advocate (with Mr. Zakir
Hossain Munshi, Advocate)
instructed by Mr. Syed
Mahbubar Rahman, Advocate-on-
Record.
Date of hearing : 18.10.2022.
Date of judgment : 19-10-2022
J U D G M E N T
Hasan Foez Siddique,C.J: These five appeals
are directed against the judgment and order
dated 29.03.2006 passed by the High Court
Division in Writ Petition Nos.3942,3943, 3944,
3945 and 5217 of 2005 making all the Rules 2
absolute. Points for determination of all
matters are identical.
The relevant facts of writ petition
No.3942 of 2005,in short, are that the writ
petitioner has been running his business
concern in the name and style of M/S. Solar
Trading Corporation. His business is for
importing automobile, tyres, tubes and flaps
etc. He is a VAT assesse and has been paying
VAT duly. In course of business, the writ-
petitioner imported his commodities in 2003 by
different letters of credit and after arrival
of the goods he got release of the same on
paying the customs duties, VAT and other
charges leviable under the law and sold the
imported goods in the market on the basis of
retail price. The writ-petitioner received the
notice under the signature of writ respondent
No.1, Assistant Commissioner, Customs, Excise
and VAT, Sutrapur Division, Dhaka dated
08.05.2004 being No.4/VAT/Aum/Dabi/585 claiming
tk.54,82,648.00 as unpaid VAT which was
allegedly liable to be paid by the writ
petitioner at the sale/supply of his imported
goods in the market while selling the same on
the basis of retail price. The writ petitioner 3
denied to pay the alleged liability submitting
reply to the writ-respondent No.2 on
20.05.2004. Thereafter, writ respondent No.2
blocked the BIN number of the writ petitioner
so the writ petitioner could not release
imported goods. In such compelling
circumstances, the writ-petitioner paid
tk.2,00,000.00 on 02.08.2004 through challan as
part payment against the said demand dated
12.05.2004 to avoid loss, demurrage and bank
interest. Consequently, his BIN number was
restored. The writ-respondent No.2 on
21.08.2004, issued another demand notice
demanding tk.57,56,069.57 which includes the
demand earlier dated 08.05.2004 followed by
reminder letter dated 27.06.2004. Writ-
respondent No.2, on 28.12.2004, issued another
demand notice claiming an amount of
tk.44,68,631.00 showing the same as due VAT
from financial year 2001 to 2004 which covered
the period from 2001, which was included in the
earlier demand notice dated 08.05.2004, upto
the 30th June, 2004. The writ petitioner ’s BIN
was again locked. Thereafter, the writ-
petitioner again compelled to deposit
tk.13,00,000/- as part payment against the said 4
demand to avoid loss, demurrage and bank
interest. After so payment his BIN number was
again restored. The writ-petitioner claiming
the demand as false filed an application to the
writ-respondent No.2 praying for refund of the
said amounts at tk.2,00,000.00 and
tk.13,00,000.00 but did not get any result.
Thereafter, writ-respondent No.2 on 30.03.2005
again issued another demand notice claiming
tk.69,62,012.00 as unpaid VAT for the period
from July, 2000 to June, 2004 which also
includes the earlier demand excluding the paid
amount of tk.15,00,000.00 as aforesaid. The
writ-respondent No.2 on 26.05.2005 again issued
another demand amount to tk.3,66,721.95 as
unpaid VAT for the period from July, 2000 to
August, 2000. Thus, the writ-petitioner
challenged the said demands.
In Writ Petition No.5217 of 2005 the writ
petitioner, Md. Nasiruddin, alleged that he is
a regular importer of Sugar classified under
H.S. Code No.170.11.00; Sodium Carbonate
classified under H.S. Code No.2836.20.00; Milk
Powder classified under H.S. Code
No.04022.21.20; Wood classified under H.S. Code
No.4403.49.00; Rice classified under H.S. Code 5
No.1006.20.00; Resin classified under H.S. Code
No.3907.60.00; Dal Dunpeas etc. He is a whole
seller of the aforesaid goods in the local
market. The writ-petitioner imported the said
goods lastly in the month of September, 2002 to
October, 2005 and got release of those goods
after paying Customs duties, Excise and VAT and
paid other charges as applicable in law and
sold the goods in the market on the basis of
retail price. The writ-petitioner received a
demand notice No.01 of 2005 dated 14.05.2005
issued by writ-respondent No.5 claiming an
alleged unpaid VAT amounting to tk.3,42,653.50.
The writ-petitioner, protesting the said
demand, submitted written representation on
11.06.2005 to the writ-respondent No.5 and
prayed for withdrawal of the notice. The writ-
respondent No.5 heard the writ-petitioner but
issued final demand notice being No.01 of 2005
dated 05.07.2005 modifying the earlier demanded
amount from tk.3,42,633.50 to tk.3,29,12,147.00
under section 5(2) and 5(4) of the VAT Act,
read with the provision of SRO No.143 and 144
dated 07.06.2001 without considering the
objection raised by the writ-petitioner. Thus,
the writ petitioner, challenging the said 6
demand notice, filed this writ petition. Facts
of all the writ petitions are almost identical.
The High Court Division made all the Rules
absolute. Against which, the appellants have
preferred these five different appeals in this
Division upon getting leave.
Mr. A.M. Amin Uddin, learned Attorney
General, appearing for the appellants, submits
that the instant writ petitions were not at all
maintainable in view of the statutory provision
of preferring appeal against the impugned order
made by the Assistant Commissioner of Customs,
Excise and VAT Commissionerate, the High Court
Division erred in law in entertaining the
instant writ petitions which has a caused total
failure of justice. In support of his
submissions, learned Attorney General cited a
recent decision of this Division dated
04.04.2022 passed in Civil Petition for Leave
to Appeal No.140 of 2019.
Mr.A.F. Hassan Ariff, learned Senior
Advocate appearing for the writ petitioner-
respondents in all the appeals in his
submissions contended that since the Assistant
Commissioner of Customs, Excise and VAT while
issuing the impugned demand the committed gross 7
illegality, the High Court Division rightly
entertain the writ petitions.
Recently, this Division in Civil Petition
for Leave to Appeal No.140 of 2019 has made the
following observations:
“Our apex court in the case of TaeHung
Packaging (BD) Limited and others Vs. Bangladesh
and others, reported in 18 BLC (AD) (2013) 144,
held:
“When the question of
maintainability of a writ petition
is raised by the contesting
respondents, it is the first and
foremost duty of the learned judges
to decide the said question first.
If the writ petitions are found not
maintainable, then it will be sheer
wastage of court’s valuable time to
consider and discuss the merit of
the case.”
Section 42 of the VAT Act provides forum for
statutory appeal which runs as follows:
42| Avcxj- (1) ÔÔ‡h †Kvb g~j¨ ms‡hvRb Ki Kg©KZ©v ev †h †Kvb
e¨w³ g~j¨ ms‡hvRb Ki Kg©KZ©vi GB AvBb ev †Kvb wewai Aaxb
cÖ`Ë †Kvb wm×všÍ ev Av‡`k Øviv msÿzä nB‡j wZwb D³ wm×všÍ ev
Av‡`‡ki weiæ‡×, c‡Y¨i mieivn ev cÖ`Ë †mevi †ÿ‡Î aviv 56 Gi
Aaxb cÖ`Ë †Kvb AvUK ev weµq Av‡`k A_ev cY¨ Avg`vwbi †ÿ‡Î
Customs Act Gi section 82 ev section
98 Gi Aaxb †Kvb Av‡`k e¨ZxZ, D³ wm×všÍ ev [Av‡`k cÖ`v‡bi ev,
†ÿÎgZ, Av‡`k Rvwii] [beŸB w`‡bi] g‡a¨,
(K) D³ wm×všÍ ev Av‡`k AwZwi³ Kwgkbvi ev Zwbœ‡¤œi †Kvb
g~j¨ ms‡hvRb Ki Kg©KZ©v KZ…©K cÖ`Ë nBqv _vwK‡j,
Kwgkbvi (Avwcj) Gi wbKU; 8
(L) D³ wm×všÍ ev Av‡`k Kwgkbvi, Kwgkbvi (Avwcj) ev Zuvnvi
mggh©v`vi †Kvb g~j¨ ms‡hvRb Ki Kg©KZ©v KZ…©K cÖ`Ë nBqv
_vwK‡j, Customs Act Gi section 196
Gi Aaxb MwVZ [Customs, Excise and
g~j¨ ms‡hvRb Ki Appellate Tribunal,
AZ:ci Appellate Tribunal ewjqv
DwjøwLZ, Gi wbKU; Ges
(M) D³ wm×všÍ ev Av‡`k Appellate Tribunal
KZ…©K cÖ`Ë nBqv _vwK‡j, evsjv‡`k mycÖxg †Kv‡U©i nvB‡KvU©
wefv‡Mi wbKU;]
Avwcj Kwi‡Z cvwi‡eb|
............................................................
............................................................
(2) hw` †Kvb e¨w³ †Kvb cY¨ ev †mevi Dci cÖ‡`q g~j¨ ms‡hvRb K‡ii
`vex m¤úwK©Z A_e v GB AvB‡bi Aaxb Av‡ivwcZ †Kvb A_©`Û
m¤úwK©Z †Kvb wm×všÍ ev Av‡`‡ki weiæ‡× Dc -aviv (1) Gi Aaxb
Avwcj Kivi B”Qv K‡ib, Zvnv nB‡j Zvnv‡K, Zvnvi Avwcj `v‡qi
Kivi Kv‡j [AvwcjwU-
[(K) Kwgkbvi (Avwcj) Gi wbKU `v‡qi Kiv nB‡j, `vexK…Z Ki
Gi `k kZvsk ev `vexK…Z Ki bv _vwK‡j Av‡ivwcZ A_©`‡Ûi
`k kZvsk]; [Ges]
(L) Kwgkbvi ev Zuvnvi mggh©v`vi †Kv‡bv g~j¨ ms‡hvRb Ki
Kg©KZ©vi Av‡`‡ki weiæ‡× Appellate
Tribunal G `v‡qi Kiv nB‡j, [`vexK…Z Ki Gi `k
kZvsk ev `vexK…Z Ki bv _vwK‡j Av‡ivwcZ A_©`‡Ûi `k
kZvsk] ;Ó
From the above provision of law it is clear
that any person aggrieved by the decision or
order passed by the Commissioner, Additional
Commissioner or any VAT Official lower in the
rank of the Commissioner or Additional
Commissioner can prefer appeal to the forum
prescribed.
In the instant case the writ-petitioner
impugned adjudication order dated 15.08.2007
passed by the writ-respondent no.2 Assistant
Commissioner, Customs, Excise and VAT Division 9
and other impugned orders passed by other
officials are appealable order under section
42(1)(Ka) of the VAT Act and section 42(2)(Ka)
mandates that 10% of the demanded VAT is to be
deposited at the time of filing of the appeal.
When there is a statutory provision to avail
the forum of appeal against an adjudication
order passed by the concern VAT Official then
the judicial review under Article 102(2) of the
constitution bypassing the appellate forum
provided under the law is not maintainable.
In view of the time frame prescribed by
section 42(4) of the VAT Act it cannot be said
that the remedy under section 42 of the Act is
not efficacious.
The respondent had an adequate remedy under
the VAT Act which he could avail of
. The
respondent did not avail the appellate forum
under the statute which was competent to decide
all questions of fact and law.
It is pertinent to mention here that Clause
(2) of Article 102 of our Constitution empowers
the High Court Division to interfere with any
proceeding if satisfied that there is ‘no other
equally efficacious remedy is provided by law.’
Though Article 226 of the Constitution of
India provides no such restrictions for the High
Courts in India to invoke writ jurisdiction even
in presence of equally efficacious remedy in any
case of violation of fundamental rights and the
Supreme Court of India has also been given
similar power with the exception that under
Article 32 the sole object is the enforcement of
the fundamental rights guaranteed by the
Constitution whereas, under Article 226 of the
High Courts have been invested with a wider 10
power relating to the enforcement of fundamental
rights as well as ordinary legal rights, still
Indian Supreme Court is very cautious in
exercising the right where there is an
alternative remedy.
In the case of Champalal Binani Vs. the
Commissioner of Income Tax, West Bengal &
others, reported in AIR 1970(SC)645, the Indian
Supreme Court observed that:
“Where the aggrieved party has an
alternative remedy the High Court
would be slow to entertain a
petition challenging an order of a
taxing authority which is ex-facie
with jurisdiction. A petition for a
writ of certiorari may lie to the
High Court, where the order is on
the face of it erroneous or raises
question of jurisdiction or of
infringement of fundamental rights
of the petition.”
From the reasons stated above
, we are of the
view that the writ petitions were not
entertainable without exhausting the statutory
forum of appeal provides under section 42 of the
VAT Act.
It is true that there is no absolute Rule of
law barring to file writ petition challenging
the impugned orders but this Division
consistently deprecate the practice of filing
writ petition in the High Court Division where
an alternative remedy has been provided under
the relevant statute. In the case of Harbanslal 11
Sahnia V. Indian Oil Corp. Ltd., (2003) 2 SCC
107 it was observed by the Supreme Court of
India that High Court may exercise its writ
jurisdiction in at least three contingencies:
(1) Where writ petition seeks enforcement of
any fundamental rights; (II) Where there is
failure of principles of natural justice; or
(III) Where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. In the instant cases, since the
statute provided efficacious alternative remedy
to the aggrieved persons and Statute itself
contains a mechanism for redressal of grievance
and in the writ petitioners the writ petitions
did not raise any point stated above, we are of
the view that writ petitioners should avail the
statutory remedy provided in the statute.
In view of the aforesaid recent decision
of this Division and discussions made above and
since we have already decided the issued raised
by the learned Attorney General, it would be
unjust to reopen the same again. The writ
petitioners may prefer appeal before the
appropriate authority and they may consider the
prayer for condonation of delay if the same is
so filed. 12
With the observations made above, all the
appeals are allowed. The judgment and order
dated 29.03.2006 passed by the High Court
Division in Writ Petition Nos.3942 of 2005,
heard analogously with Writ Petition Nos.3943,
3944, 3945 and 5217 of 2005 are hereby set
aside.
C.J.
J.
J.
J.
The 19th October, 2022
/words-2243/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.2419 OF 2019
(From the judgment and order dated 18.02.2019 passed by the High Court Division in Writ Petition
No.609 of 2019)
Md. Taherul Islam (Tawhid) ……..….Petitioner
-Versus-
The Speaker Bangladesh Jatiya Sangsad
and others
..…..…Respondents
For the petitioner : Mr. A.M. Mahbub Uddin, senior Advocate,
instructed by Mr. Md. Taufique Hossain,
Advocate-on-Record.
For the respondents :
Mr. A.M. Amin Uddin, Attorney General
with Mr. Sk. Md. Morshed, Additional
Attorney General, Mr. Mohammad Mehedi
Hasan Chowdhury, Additional Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General and Mr. Sayem
Mohammad Murad, Assistant Attorney
General, instructed by Mr. Haridas Paul,
Advocate-on-Record.
Date of hearing
and judgment
:
]]]]]]]
The 01st day of August, 2023
JUDGMENT
Obaidul Hassan, J. This Civil Petition for Leave to Appeal (CPLA) is
directed against the judgment and order dated 18.02.2019 passed by
the High Court Division in Writ Petition No.609 of 2019 summarily
rejecting the same. The petitioner filed the aforesaid Writ Petition
challenging the holding of office of the Members of Parliament (MPs)
by the respondents No.5-294 having taken their oaths in violation of
=2=
Article 123(3) read with Article 148(3) and 72(3) of the Constitution of
the Peoples’ Republic of Bangladesh.
The petitioner filed the aforesaid Writ Petition contending, inter
alia, that 10th National Parliamentary Election was held on 05.01.2014
and the MPs elected in the said election took their oaths on 09.01.2014
after the publication of election result in the official gazette and
subsequently cabinet was formed on 12.01.2014. The first meeting of
the 10th National Parliament was held on 29.01.2014 and as per
Article 72(3) of the Constitution, the tenure of the 10th National
Parliament expired on 28.01.2019 after completion of five years term
from the date of first meeting. The official website of Bangladesh
Jatiya Sangshad also displays that the first meeting of the 10th
National Parliament was held on 29.01.2014. The election of the 11th
National Parliament was held on 30.12.2018 under the supervision of
the Election Commission in 299 constituencies. In compliance with
Article 19(3) of the Representation of the People’s Order, 1972 the
Election Commission declared the result of the returned candidates
in the said election by gazette notification on 01.01.2019. Although
Article 39(4) of the Constitution does not provide for any time limit to
publish such gazette, the oaths of the newly elected MPs were
administered at 11:00 a.m. on 03.01.2019 in a ceremonial manner and
subsequently, on the same day the Hon’ble President expressed his
decision to appoint Sheikh Hasina, MP as the Prime Minister of
Bangladesh due to her commanding the support of the majority of
=3=
members and invited her to form cabinet under her leadership.
Thereafter, on 07.01.2019 the President appointed Sheikh Hasina, MP
as Prime Minister by official gazette notification. On the same day
another gazette was published pursuant to Article 56(ii) of the
Constitution and Rule 3(iv) of the Rules of Business, 1996 announcing
the names of the Ministers, State Ministers and Deputy Ministers.
Accordingly, they took oaths as Ministers, State Ministers and
Deputy Ministers on 07.01.2019. The first session of the 11th National
Parliament (RvZxq msm`) was held on 30.01.2019.
According to Article 148(3) of the Constitution, the persons,
who took oath on 03.01.2019 as members of Parliament, by virtue of
taking oath, had already assumed office as members of Parliament.
As such, they took the oath and assumed their office as MPs before
expiration of the term of the previous Parliament which is set to be
dissolved on 28.01.2019. Therefore, the day they took oaths, there
were about six hundred members of Parliament, which is clearly in
contradiction with the provisions of the Constitution and as such
they cannot remain in office as members of Parliament.
Neither the Constitution nor the RPO put any time limit within
which the publication of the returned candidates must be made.
According to Article 39(4) of the Representation of the People’s
Order, 1972 the Election Commission shall have to publish the names
of the retuned candidates after holding National Parliament Election
although there is no provision requiring to publish the names of the
=4=
returned candidates within any specified time. But the Election
Commission hurriedly published the results only two days after the
election. It is also contended that since the cabinet was formed even
before the first meeting of the 11th National Parliament, the MPs who
took oath as ministers also committed gross illegality in violation of
the Constitution. Accordingly, a Rule was sought to issue against the
respondents by the High Court Division in the form of quo warranto
calling upon the said MPs, as to under what capacity they are
holding such office of the members of Parliament in particular, when
they entered office when the previous MPs were also existing in the
said office as members of Parliament being the same is violative of
Article 123(3) read with Articles 148(3) and 72(3) of the Constitution.
Before issuing Rule the High Court Division heard the learned
Attorney General since the writ petitioner raised a serious
constitutional issue. Upon hearing both sides the High Court
Division was pleased to reject the Writ Petition being No.609 of 2019
summarily by impugned judgment and order dated 18.02.2019.
Being aggrieved with the impugned judgment and order dated
18.02.2019 the petitioner preferred the instant Civil Petition for Leave
to Appeal.
Mr. A.M. Mahbub Uddin, learned senior Counsel appearing on
behalf of the petitioner taking us through the judgment and order
dated 18.02.2019 passed by the High Court Division in Writ Petition
=5=
No.609 of 2019 as well as other materials on record contends that the
High Court Division erred in law in totally misconceiving the case of
the petitioner upon misreading the constitutional provisions
enshrined in Article 148(3) in holding that a member of Parliament
assumes office on the day of the first meeting of Parliament. The
learned senior Counsel contends next that High Court Division relied
on a misconceived understanding of the concept of ‘Legal Fiction’ to
hold that clear language of Article 148(3) to the effect that a person
assumed office after taking oath is not binding on a person by virtue
of the principle of ‘Legal Fiction’. The learned senior counsel submits
next that according to Article 123(3) the respondents, who have been
elected in the 11th National Parliamentary Election cannot assume
office as MPS before expiration of the term of the previous Parliament
which was scheduled to expire on 28th January 2019 but by taking
oaths before the said period the respondents assumed the said office
which violated the provision of Article 123(3), but the High Court
Division without considering the said issue most illegally passed the
impugned judgment and order. The learned senior Counsel argues
next that the High Court Division failed to appreciate that 10th
Parliament first sat on 29.01.2014 and as per Article 72(3) of the
Constitution the term of the 10th Parliament existed until 28.01.2019
but the respondents took oath and assumed office as MPs which was
not only a nullity in law, but an absurdity as the MPs from the
previous Parliament were still holding office, meaning that the
=6=
number of MPs at the same time in office was higher than 345 as
stipulated in Article 65(3A) of the Constitution.
Per contra, Mr. A.M. Amin Uddin, learned Attorney General
appearing along with Mr. Sk. Md. Morshed, learned Additional
Attorney General, Mr. Mohammad Mehedi Hasan Chowdhury,
learned Additional Attorney General, Mr. Mohammad Saiful Alam,
learned Assistant Attorney General and Mr. Sayem Mohammad
Murad, learned Assistant Attorney General appearing for the
respondents advance their submissions supporting the judgment of
the High Court Division and vehemently oppose the prayer of the
petitioners for granting of leave. The learned Attorney General along
with his accompanying Counsels contend that it has not been
challenged in the Writ Petition that the said MPs had been elected
illegally in the 11th National Parliamentary Election or they were
disqualified to become for any reason to become Members of
Parliament. Therefore, in so far as the Writ Petition is concerned, it
has only challenged the oath taking by the said MPs for which the
said MPs had nothing to do since the oath taking ceremony is the
matter of Parliament Secretariat. The learned Counsels for the
respondents by referring the oath of MP stated in the 3rd Schedule of
the Constitution, argue that the form of oath of MPs is quite unique
and not similar to other oaths mentioned in the 3rd Schedule of the
Constitution. The framers of the Constitution aptly incorporated the
words “the duties upon which I am about to enter” in the form of
=7=
oath of MPs. Drawing a subtle distinction between the words stated
in the form of oath of MPs and those of other forms of oaths the
learned Counsel for the respondents submit that the oath taken by
the MPs categorically indicate that upon taking oath the MPs do not
become MPs in reality rather they fictionally assume office of
Members of Parliament for certain purpose. According to the
provisions of the Constitution an MP will not assume office in reality
until he sits in the Parliament and only when the first meeting of the
Parliament takes place, an elected MP may assume office in reality.
The learned Counsels submit next that the members of Parliament do
not assume office in reality whenever they take oath, rather the
Constitution has created a legal fiction as regards assumption of
office by the Members of Parliament upon taking oath only for the
purpose of forming a government or cabinet so that there is no break
in the running of the government in the country.
We have perused the impugned judgment and order dated
18.02.2019 passed by the High Court Division in Writ Petition No.609
of 2019, considered the submissions of the learned Counsels of the
both sides and gone through the other materials on record.
It is admitted that the newly elected Members of Parliament in
the 11th Parliamentary Election took their oaths on 03.01.2019 and the
cabinet was formed on 07.01.2019 while the term of the 10th
Parliament expired on 28.01.2019. The petitioner claims that taking
oath during the validity period of earlier parliament by members of
=8=
Parliament in the 11th Parliamentary Election is violative of proviso to
Article 123(3) read with Articles 148(3) and 72(3) of the Constitution.
It is advantageous to know Article 123(3), Article 148(3) and
72(3) of the Constitution.
Article 123(3) lays down that-
“(1)....................................................................................
(2).......................................................................................
(3) A general election of the members of Parliament shall
be held-
(a) in the case of a dissolution by reason of the
expiration of its term, within the period of ninety
days preceding such dissolution; and
(b) in the case of a dissolution otherwise than by
reason of such expiration, within ninety days after
such dissolution:
Provided that the persons elected at a general election
under sub-clause (a) shall not assume office as members
of Parliament except after the expiration of the term
referred to therein.
...........................................................................................
Article 148 provides in the following-
“(1).....................................................................................
(2).......................................................................................
(2A) If, within three days next after publication through
official Gazette of the result of a general election of
members of Parliament under clause (3) of article 123, the
person specified under the Constitution for the purpose
or such other person designated by that person for the
purpose, is unable to, or does not, administer oath to the
=9=
newly elected members of Parliament, on any account,
the Chief Election Commissioner shall administer such
oath within three days next thereafter, as if, he is the
person specified under the Constitution for the purpose.
(3) Where under this Constitution a person is required to
make an oath before he enters upon an office he shall be
deemed to have entered upon the office immediately after
he makes the oath.
Article 72(3) states that-
“(1)....................................................................................
(2)....................................................................................
(3) Unless sooner dissolved by the President, Parliament
shall stand dissolved on the expiration of the period of
five years from the date of its first meeting:
...........................................................................................”
(underlines supplied by us)
From the above constitutional provisions, it appears that
according to Article 123(3) the general election of the members of
Parliament shall be held in case of dissolution of Parliament by
reason of the expiration of its term, within the period of ninety days
preceding such dissolution. Proviso to Article 123(3) puts an embargo
on the members of Parliament so elected to assume the office as
members of Parliament before expiry of the term of earlier
Parliament. Article 148(3) provides that a member of Parliament shall
be deemed to have entered upon the office immediately after taking
oath. Article 148(2A) lays down that the oath of the newly elected
members of Parliament has to be administered within three days
after the publication of the result of general election in the official
=10=
gazette. Article 72(3) provides that unless dissolved earlier by the
President, the Parliament shall stand dissolved after expiry of five
years from the date of its first meeting.
Admittedly the 1st meeting of the 10th Parliament was held on
29.01.2014 and accordingly the term of the said Parliament was
scheduled to expire on 28.01.2019. It reveals from the record that the
newly elected members of Parliament in 11th Parliament took oath on
03.01.2019. The petitioner asserts that the members of Parliament
elected in the 11th Parliament entered upon their office as members of
Parliament immediately after taking oath on 03.01.2019 while the
term of 10th Parliament was still in force which contravenes the
constitutional provisions as enshrined in proviso to Article 123(3) of
the Constitution. To ascertain whether there was illegality or not in
holding the office by the members of 11th Parliament the High Court
Division discussed about the ‘deeming clause’ contemplated under
Article 148(3) of the Constitution. Now let us see what is ‘deeming
clause’.
The term ‘deem’ is derived from the old English word ‘domas’
which meant ‘judgment or law’. Webster’s Ninth New Collegiate
Dictionary provides the following meanings: ‘to come to think or
judge: consider; to have an opinion: believe.’
In Black's Law Dictionary, the word ‘deem’ has been defined in
the following way:
=11=
‘to treat (something) as if (1) it were really something else,
or (2) it had qualities that it does not have.’
Bennion Statutory Interpretation (3rd ed. 1997, p. 735), states:
‘Deeming provisions’- Acts often deem things to be what they are
not. In construing a deeming provision, it is necessary to bear in
mind the legislative purpose.
It is well settled position of law that a deeming provision is an
admission of the non-existence of the fact deemed. The Legislature is
competent to enact a deeming provision for the purpose of assuming
the existence of a fact which does not even exist. It means that the
Courts must assume that such a state of affairs exists as real, and
should imagine as real the consequences and incidents which
inevitably flow there from, and give effect to the same.
Mr. Mahmudul Islam in his book titled ‘Interpretation of
Statutes and Documents’ (First edition, 2009) at pg 87 writes as under-
“The legislature sometimes creates legal fiction by using
words which are called ‘deeming clause’. A legal fiction is
one which is not at actual reality, but the legislature
mandates and the courts accept it to be a reality, though
in reality it does not exist. The effect of such deeming
clause is that a position which otherwise would not
obtain is deemed to obtain under the circumstances.”
He further states at pg. 88 that-
“The court has to determine the limits within which and
the purpose for which legislature has created the fiction
the court is to find out the limit of the legal fiction and not
to extend the frontier of the legal fiction.”
=12=
However, at pg. 89 he gave a clarification in the following way-
“However, in construing the deeming clause, it should
not be extended beyond the purpose for which it is
created or beyond the language of the section by which it
is created; it cannot be extended by importing another
fiction.”
The effect of such a deeming clause has been stated by Indian
Supreme Court in State of Bombay Vs. Pandurang Vinayak
Chaphalkar, AIR 1953 SC 244 as follows:
“When a statute enacts that something shall be deemed to
have been done, which in fact and truth was not done, the
court is entitled to ascertain for what purposes and
between what persons the statutory fiction is to be
resorted to and full effect must be given to the statutory
fiction and it should be carried to its logical conclusion.”
In the Bengal Immunity Company Limited Vs. The State of
Bihar and Ors., AIR 1955 SC 661 it has been observed by a Bench of
the Indian Supreme Court comprising of seven judges headed by the
then acting Chief Justice Sudhi Ranjan Das in the following-
“42. Legal fictions are created only for some definite
purpose......................................a legal fiction is to be
limited to the purpose for which it was created and
should not be extended beyond that legitimate field.”
It has been also observed in the case of Prakash H. Jain Vs.
Marie Fernandes, (2003) 8 SCC 431 that-
“12..............................it is by now well settled by
innumerable judgments of various courts including this
Court, that when a statute enacts that anything shall be
=13=
deemed to be some other thing the only meaning possible
is that whereas that the said thing is not in reality that
something, the legislative enactment requires it to be
treated as if it is so. Similarly, though full effect must be
given to the legal fiction, it should not be extended
beyond the purpose for which the fiction has been created
and all the more, when the deeming clause itself confines,
as in the present case, the creation of fiction for only a
limited purpose as indicated therein.”
Lastly, in the case of Pubali Bank Vs. The Chairman, First
Labour Court, Dhaka and another, reported in 44 DLR (1992) 40 this
Division comprising of four judges dealt with a question whether the
Labour Court, ‘deemed as a civil court’ it was decided that the
Labour Court acts as a civil court for limited purpose and it will not
exercise the powers like those given in Order IX or Order XXXIX Rule
1 of the Code of Civil Procedure which the civil court may exercise in
a suit.
In the case of Pubali Bank (supra) Justice Mustafa Kamal
observed in the following-
“26. The language employed in sub-section (2) of Section
36 has to be closely scrutinised. A Labour Court is not a
Civil Court at all. It is only by a legal fiction or a statutory
hypothesis that it is to be treated as a Civil Court.
27. When the legislature enacts a “deeming” clause, the
correct way to interpret the same is to find out for what
purpose and upto what extent the legal fiction has-been
created. It is the function of the Court to find out the
limitation of the legal fiction, to delimit its boundaries
=14=
and not to extend the frontier of legal fiction beyond what
has been provided in the statute. As was held in the case
of Radha Kissen Chamria and others Vs. Durga Prasad
Chamria, AIR 1940 PC 167, “As the analogy only arises by
legal fiction, it must be limited to the purposes enacted by
the context and cannot be given larger effect.” Also it has
been held in the case of Commissioner of Income Tax Vs.
Vadilal Lallu Bhai. AIR 1973 (SC) 1016. “Legal fictions are
only for definite purposes and they are limited to the
purpose for which they are created and should not be
extended beyond their legitimate field.”
In the case of Radha Kissen Chamaria vs Durga Prashad
Chamaria, reported in AIR 1940 PC 167, it has been dealt with
“deeming clause” mentioned in Section 19(3) of the Bengal Public
Demands Recovery Act, 1913, which provided that a certificate
holder shall be deemed to be the representative of the holder of the
attached decree and to be entitled to execute such attached decree in
any manner lawful for the holder thereof. While discussing about the
“deeming clause” under the aforesaid Section the Privy Council
observed that the legal fiction created thereby was for a limited
purpose of enabling the certificate holder to execute the decree and to
satisfy his own claim out of the proceeds of such execution, but he
was not in a position of an assignee of the decree so as to acquire all
the rights of the original decree holder in the decree.
From the above it is well settled that the legal fiction must be
extended to its logical conclusion and at the same time it should be
construed strictly. The High Court Division in the impugned
=15=
judgment observed that a deeming clause in the Constitution, has to
be interpreted taking into consideration of various factors depending
on the backdrop due to which the same was incorporated, legislative
intent for incorporation of such clause vis a vis the manner of
application of such deeming clause. We endorse the above
observation of the High court Division.
Adverting to the present case we need to examine the
provisions of the Constitution to retrieve the latent intention for
purpose of the incorporating the “deeming clause” under Article 148
(3) of the Constitution. Part-V of our Constitution deals with the
provisions relating to legislature. Article 65 of the Constitution
provides for a Parliament for Bangladesh to be known as the House
of Nation whereupon the legislative functions while Article 66
enumerates the qualifications and disqualifications for being member
of Parliament.
Article 72(2) lays down that the Parliament shall be summoned
to meet within thirty days after the declaration of the results of
polling at any general election of members of Parliament.
Accordingly, once gazette notification is published by the Election
Commission declaring the names of the returned candidates, the
Parliament has to resume its meeting within thirty days from the date
of publication of the result. Article 72(3) provides that the Parliament
shall stand dissolved on the expiry of the period of five years from
the date of its first meeting unless dissolved earlier by the President.
=16=
Article 74(1) states that in the first meeting of the Parliament, it shall
elect its Speaker and Deputy Speaker.
Now let us look into the provisions regarding the formation of
the government are subsumed under Chapter II of Part-IV of the
Constitution containing Articles 55-58. According to Article 55 there
shall be a cabinet for Bangladesh having the Prime Minister at its
head and all executive power of the republic shall be exercised by, or
on the authority of the Prime Minster. Article 56, enshrines the
provisions as to how the Ministers, State Ministers and Deputy
Ministers are appointed. Article 56(3) lays down that the President
shall appoint as Prime Minister the member of Parliament, who
appears to him to command the support of the majority of the
members of Parliament.
From the above it is abundantly clear that when the election to
the Parliamant was held and the names of returned candidates were
declared, it was incumbent upon the Hon’ble President of
Bangladesh to appoint a Prime Minister first, from among the elected
members of Parliament who appears to have commanded the
support of the majority members. Therefore, when an election to
national Parliament takes place and the names of the returned
candidates are declared, the framers of the Constitution incorporated
the provision of Article 56(3) for appointment of a member of
parliament as Prime Minister, to keep run the continuity of the
Government so that no break takes place the running of the
=17=
government. The said provision was embodied in the Constitution
even if the Parliament does not sit in its first meeting, there cannot be
any vacuum in the running of the government in the country.
Although there may be a gap between one parliament and another,
the continuity of the government cannot have any break, and even if
the Prime Minister becomes disqualified to continue as Prime
Minister, he or she will still continue under Article 57 unless and
until the next Prime Minister takes upon the office. The tenure of
other Ministers is also the same under Article 58 according to which
they will also continue to hold office until their successors enter upon
such office. What can be deduced from the foregoing discussion is
that the architect of our Constitution arranged its various provisions
with such a dexterity and placed each of its provision very neatly and
coherently so that there is no break in the continuity of the
government in any occasion.
Again, Article 123(3) enjoins the general election of the
members of Parliament to be held in case of dissolution of Parliament
by reason of the expiration of its term, within the period of ninety
days preceding such dissolution. Again, as per proviso to Article
123(3) the newly elected members of Parliament shall not assume the
office as members of Parliament before expiry of the term of earlier
Parliament. According to Article 148(1) a person elected or appointed
to any office mentioned in the Third Schedule shall before entering
upon the office make and subscribe an oath or affirmation in
=18=
accordance with that Schedule. Article 148(2A) was incorporated in
the Constitution through 14th Amendment to the Constitution which
states that the taking of oath or administering of oath must be done
within three days from publication of results of election in the official
gazette by the Election Commission and an additional three days
may be allotted to administer such oath to the members of the
Parliament, by the Chief Election Commissioner if for any reason the
person designated in the Constitution does not administer oath.
Article 148(3) lays down that a member of Parliament shall be
deemed to have entered upon the office immediately after taking
oath. It reveals from the above that the framers of the Constitution in
one place of the Constitution provided that the member of
Parliament shall not assume his office before the expiry of the term of
earlier Parliament while in another place an MP shall be deemed to
have assumed his office once he takes oath even before the first
meeting of parliament or before dissolution of the last Parliament. In
view of the above position of law we need to have a glimpse into the
form of oath taken by the member of Parliament.
The form of oath taken by the member of Parliament has been
incorporated in the 3rd Schedule under serial No. 5. The oath is as
follows-
“5. Member of Parliament.– An oath (or affirmation) in
the following forms shall be administered by the
Speaker– “I, ................................................., having been
elected a member of Parliament do solemnly swear (or
=19=
affirm) that I will faithfully discharge the duties upon
which I am about to enter according to law : That I will
bear true faith and allegiance to Bangladesh : And that I
will not allow my personal interest to influence the
discharge of my duties as a member of Parliament.”
It divulges from the above that unlike other oaths, the MPs take
oath to discharge their duties upon which they do not enter
immediately rather it denotes the duties upon which they are about
to enter in future.
That apart, petitioner in paragraph 4 of the Writ Petition stated
that though the first meeting of the 10th Parliament was held on
29.01.2014, the cabinet was formed before the said meeting, i.e. on
12.01.2014, and the MPs took oath even before i.e. on 09.01.2014. The
same happened in case of other parliamentary election of Bangladesh
and the 11th parliamentary election is no exception to that. Inasmuch
as once the names of elected members of Parliament returned by the
Election Commission in the official gazette, it becomes necessary for
them to take oath and this necessity arises because of the relevant
provisions of the Constitution in order to form a new government.
The intention of the legislature is transparent while going through
Article 56(3) of the Constitution whereby the President is required to
appoint a newly elected MP, who appears to have commanded
majority support of the members of parliament, as Prime Minister of
the country. Therefore, for such appointment of an MP as Prime
Minister, the first sitting of the Parliament is not necessary to be held.
=20=
Rather, it is the discretion of the Hon’ble President to appoint a
member as Prime Minister from among the elected members of
parliament commanding the support of the majority. In the given
circumstances, it is clear that latent intent of the legislature for
incorporating the deeming clause under Article 148(3) of the
Constitution is to maintain the continuity of the government.
Now, talking about the 11th Parliamentary election the newly
elected MPs took oath on 03.01.2019 and on the same day the
President realized that Sheikh Hasina, the newly elected MP in the
said election, was commanding the majority support of the elected
MPs and for such satisfaction of the president under the Constitution,
he is not required to wait until the first meeting of Parliament.
Therefore, the provision of Article 148(3) of the Constitution has been
incorporated to maintain continuity of running the government for
the best interest of democracy. In the 11th Parliament after being
appointed Prime Minister on 03.01.2019, she determined as to who
would be the Ministers, State Ministers and Deputy Ministers in her
cabinet and, accordingly such MPs and some non-MPs were also
appointed as Ministers, State Ministers and Deputy Ministers by the
President in accordance with the Constitution. It is manifest from the
above that “deeming clause” under Article 148(3) was incorporated
just to facilitate the continuity of the government. Though, upon
taking oath, the MPs in reality have not assumed office of members
of parliament, yet they have assumed office by way of legal fiction
=21=
created by the Constitution and that legal fiction must be interpreted
restricting the same to be used for the said purpose only. The
legislature deliberately created this legal fiction so that the next
executive government can be formed and appointed by the President.
The said intention of the legislature has been elucidated in Article
123(3) which states that member of Parliament shall not assume office
as members of parliament except after the expiration of the term of
the previous parliament. It denotes that the MPs who took oath even
before the first meeting of the Parliament shall not in fact or in reality
assume such office of members of parliament before expiration of the
tenure of the last parliament.
Admittedly, the MPs elected in the 11th parliamentary election
did not sit in the first meeting of the parliament before expiration of
the tenure of the last parliament. They sat in the first meeting of the
parliament on 30.01.2019 i.e. two days after the expiration of the
tenure of the 10th Parliament. Therefore, even though by way of legal
fiction they have in the meantime assumed office of members of
Parliament, in reality they have not assumed such office until and
unless the first meeting of the 11th Parliament was held. This being
the position, we do not find any substance in the submissions of the
learned advocate for the petitioner that on the day the MPs in the 11th
Parliament took oath, they assumed the office of MP and as such on
that day there were more than 600 MPs in the parliament. In the light
of the foregoing discussions we find that the High Court Division
=22=
rightly rejected the application filed under Article 102(2)(a)(ii)and
(b)(ii) of the Constitution of the People’s Republic of Bangladesh by
the petitioner in Writ Petition No.609 of 2019. We do not find any
reason to interfere with the observations of the High Court Division
rather we are fully in agreement with the same.
In the premises made above, we hold that the High Court
Division on proper appreciation of facts and law passed the
impugned judgment and order for which it does not warrant any
interference by this Division.
Accordingly, this Civil Petition must fail and as such the same
is dismissed.
C.J.
J.
J.
J.
J.
J.
J.
The 01st day of August, 2023
RRO/Total words-5,429(ihp)
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 15 OF 2022
With Civil Petition for Leave to Appeal No.1732 of 2022.
(From the judgment and order dated 10.11.2016 pass ed by the
Appellate Division in C.P. No.1181/2014 & Order dat ed 24.05.2022
passed by the High Court Division in Writ Petition No.3697 of
2022)
Durnity Daman Commission, represented
by its Secretary. :
Appellant.
(In C.A. 15/2022)
Sariif Uddin Petitioner
(In C.P. 1732/2022)
=Versus=
Md. Ahsan Ali and others Respondents.
(In C.A. 15/2022)
Durnity Daman Commission, represented
by its Secretary and others :
Appellant.
(In C.P. 1732/2022)
For the Appellant :
(In C.A. 15/2022)
Mr. Md. Khurshid Alam Khan,
Senior Advocate, instructed
by Mrs.Sufia Khatun,
Advocate-on-Record.
For the petitioner :
(In C.P. 1732/2022)
Mr.
Salauddin Dolon,
Senior Advocate,
instructed by Mr. Md.
Taufique Hossain, Advocate-
on-Record.
For the Respondent No.1 :
(In C.A. 15/2022)
Mr.Madhumaloti Chowdhury
Barua, Advocate-on-Record.
For the Respondent No.3 :
(In C.A. 15/2022)
Mr.Sheikh Mohammad Morshed,
Additional Attorney General
(With Mr. Sayem Mohamm ad
Murad, Assistant Attorney
General, Mr. Mohammad Saiful
Alam, Assistant Attorney
General, & Ms. Farzana Rahman
Shampa, Assistant Attorney
General (appeared with the
leave of the Court).
Respondent No.2 :
(In C.A. 15/2022)
Mr.Sheikh Mohammad Morshed,
Additional Attorney General 2
(With Mr. Sayem Mohammad
Murad, Assistant Attorney
General, Mr. Mohammad Saiful
Alam, Assistant Attorney
General, & Ms. Farzana Rahman
Shampa, Assistant Attorney
General ( appeared with the
leave of the Court)
For Respondent No.1:
(C.P.No.1732/2022
Not represented.
Date of hearing : 02.03.2023.
Date of judgment : 16.03.2023.
JUDGMENT
Hasan Foez Siddique, C. J: The respondent No.1
in Civil Appeal No.15 of 2022 filed Writ
Petition No.1424 of 2011 in the High Court
Division, challenging the provision of the Rule
54(2) of the Anti Corruption Commission
(Employees) Service Rules, 2008 (hereinafter
referred to as “Service Rules”) as well as the
order of termination of the respondent No.1 from
his service, obtained Rule. The High Court
Division, by the impugned judgment and order
dated 27.10.2011, set aside the provision of
Rule 54(2) of the Service Rules upon making the
aforesaid Rule absolute.
In the order of termination of the writ
petitioner-respondent No.1 issued by the Anti
Corruption Commission communicated under Memo
No. Dudak/9-2009/Ga-1/Sangstapon/2999 dated
10.02.2011 it was stated as follows:
Ò`ybx©wZ `gb Kwgkb 3
cªavb Kvh©vjq
XvKv|
m¥viK bs-`y`K/9-2009/M-1/ms¯nvcb/2999 ZvwiLt 10 †deªæqvix 2011 wLªt
‡h‡nZz m¤úªwZ Avcwb Rbve †gvt Avnmvb Avjx, Dc-cwiPv jK, `ybx©wZ `gb
Kwgkb, cªavb Kvh©vjq, XvKv Awkó/PvKzix k„sLjv cwicš’x e¨envi Ges J×Ëc~Y© AvPiY
Z`ycwi AmsjMœ evK¨ e¨env‡ii gva¨‡g `ybx©wZ `gb Kwgkb I Kwgk‡bi Da©¦Zb Kg©KZ©v
m¤ú‡K© AmZ¨ I ev‡bvqvU e³e¨ w`‡q Kwgk‡bi ¯^vfvweK Kvh©µ‡g wek„sLjv m„wói †Póv
K‡i‡Qb;
‡h‡nZz Avcwb PvKzix k„sLjv cwicš’x Kvh©Kjv‡ci gva¨‡g Kwgk‡bi †Pqvig¨vb,
mwPe eive‡i mivmwi wewfbœ/wg_¨v `iLv¯Í w`‡q Kwgk‡bi Kg©KZ©v/Kg©Pvix‡`i ¯^vfvweK
Kvh©µg wewNœZ Ki‡Qb Ges †Kvb †Kvb Kg©KZ©v‡K †nq I jvwÂZ Ki‡Qb;
‡h‡nZz k„sLjv f½RwbZ Aciva msMV‡bi Kvi‡b Avcbvi weiæ ‡× wefvMxq
gvgjvq 1991 mv‡j Pvi eQi c‡`vbœwZ ¯nwMZ /e‡Üi Av‡`k KZ…©c¶ KZ…©K Aby‡gvw`Z
nq;
‡h‡nZz Avcbvi weiæ‡× PvKzix k„sLjv cwicš’x Kg©Kv‡Ûi R b¨ AZx‡Z PvKzix
wewag‡Z Avcbv‡K kvw¯— cª`vb Kiv n‡q‡Q Ges GKB Kvi‡b eZ©gv‡bI Avcbvi weiæ‡×
GKwU wefvMxq gvgjv Pjgvb _vKv m‡Z¡I Avcwb PvKzix k„sLj v cwicš’x Kvh©Kjvc
Ae¨vnZ †i‡L‡Qb;
‡h‡nZz Avcbvi G‡nb Kvh©µ‡g Kwgk‡bi fveg~wZ© webó nIqv i Ges Kwgk‡bi
¯^vfvweK Kvh©µg evavMª¯— nIqvi m¤¢vebv we`¨gvb Ges †h‡nZz Kwgk‡bi Ab¨ †Kvb
Kg©KZ©v/ Kg©Pvix‡K G‡nb k„sLjv cwicš’x Kvh©µg DrmvwnZ Ki‡Z cv‡i;
‡m‡nZz `ybx©wZ `gb Kwgkb Gi ¯^vfvweK Kvh©µg Ae¨vnZ I mybvg A¶zbœ ivLvi
¯^v‡_© `ybx©wZ `gb Kwgkb (Kg©Pvix) PvKzix wewagvjv 2008 Gi wewa 54(2) g‡Z Avcwb
†gvt Avnmvb Avjx, Dc-cwiPvjK, `ybx©wZ `gb Kwgkb, cªav b Kvh©vjq, XvKv‡K beŸB 4
w`‡bi †eZb bM` cwi‡kv‡ai Av‡`kmn `ybx©wZ `gb Kwgkb G i PvKzix n‡Z Acmvib
Kiv n‡jv|
D‡jøwLZ beŸB w`‡bi †eZb bM‡` `ybx©wZ `gb Kwgkb, cªav b Kvh©vj‡qi wnmve
kvLv n‡Z Mªn‡bi Rb¨ Avcbv‡K wb‡`©k †`qv n‡jv|
¯^vt AcvV¨
‡Mvjvg ingvb
‡Pqvig¨vb|Ó
The respondent No.1 challenged the vires of
the provision of Rule 54(2) of the Services
Rules as well as the order of termination.
It appears from the aforesaid order that the
same was not an order of termination simpliciter
but termination with stigma. It has been
observed by this Court that the order of
termination with stigma should not be legally
approved. Termination may be innocuous or may be
a camouflage for dismissal. This could be
simple. It may not be illegal to give effect to
an order of termination. But if a punishment is
veiled as termination, that has got to be
resisted. Consequently, the High Court Division
in the aforesaid writ petition made the Rule
absolute and declared the order of termination
void. It also set aside the provision of Rule
54(2) of the Service Rules. Against which, the
Durnity Daman Commission (the Commission) filed
civil petition for leave to appeal in this 5
Division which was dismissed by an order dated
10.11.2016 in Civil Petition for Leave to Appeal
No.1181 of 2014. The Commission, then filed a
Review Petition in this Division and obtained
leave.
Mr. Md. Khurshid Alam Khan, learned Senior
Counsel appearing on behalf of the appellant,
submits that the High Court Division erred in
law in setting aside the provision of Rule 54(2)
of the Service Rules, inasmuch as the said
provision has been incorporated with the
definite view to control, manage, supervise and
to maintain the discipline and order in the
service of the Commission and, thus, the same is
an administrative manoeuvre and activity of the
Commission, which comes within the absolute
domain, power function and authority of the
Commission and, therefore, cannot be subjected
to judicial review. He submits that High Court
Division has erroneously set aside the provision
of Rule 54(2) of the Service Rules, which is
liable to be set aside.
Mr. Sheikh Mohammad Morshed, learned
Additional Attorney General appearing for the
respondent No.3 in his submission, supported the
appellant’s contention. He adds that the High
Court Division declared the provision of Rule 6
54(2) of the Service Rules, void (it was written
as “set aside”) holding that the said provision
is arbitrary, unreasonable and contrary to the
provision of audi alteram partem but it failed
to draw any definite conclusion as to whether
the said provision is inconsistent with the any
provision of Constitution or fundamental rights
or the parent law. He submits that in almost all
the Service Rules of the employees in the
subcontinent such termination clause has been
provided and such provision may be harsh but
harshness cannot be a ground to declare a law
ultra vires and void. He further submits that it
has been observed in the several cases by the
Apex Court that if relief can be provided to an
aggrieved person without declaring an enactment
void that would be more acceptable. He, lastly,
submits that the instant case the High Court
Division declared the order of termination void
and, thereby, provided relief to the respondent
No.1 but it also declared the law itself void
thereby deviated from the spirit of the
observation made by the Apex Court.
Mr. Salahuddin Dolon, learned Senior Counsel
appearing for the petitioner of Civil Petition
for Leave to Appeal No.1732 of 2022, submits
that the provision of Rule 54(2) of the Service 7
Rules, is inconsistent with the fundamental
rights and the High Court Division rightly held
that such provision is unreasonable, arbitrary
and violative of the principle of audi alteram
partem. He further submits that in different
cases the termination clause of Service Rules
has been termed as Henry VIII clause and the
authority usually excised such unlimited power
in a discriminatory manner, the High Court
Division rightly declared such provision void.
One Sarif Uddin, petitioner of Civil
Petition for Leave to Appeal No.1732 of 2022 has
preferred the said civil petition against the
order passed by the High Court Division in Writ
Petition No.3697 of 2022 in which, it stayed the
further proceeding of the said writ petition
till disposal of the Civil Appeal No.15 of 2022.
Since the Commission did not get leave
against the judgment and order of the High Court
Division so far the same relates to the order of
termination issued against respondent Md. Ahsan
Ali of Civil Appeal No.15 of 2022 and that the
learned Advocate for the Commission did not make
any submission as to the legality and propriety
of the order of termination itself rather the
learned Advocate for the Commission as well as
the learned Additional Attorney General in 8
their submissions mainly confined their
submissions as to the constitutionality of the
provision of Rule 54(2) of the Service Rules, we
shall confine ourself in discussing and
considering the question as to the
constitutionality of the provision of 54(2) of
the Service Rules and conclusion arrived at by
the High Court Division in that regard only. It
is relevant here to quote the provision of Rule
54(2) of the Service Rules, the contents of
which are as follows:
Ò54| PvKyix Aemvb|-(1) Dchy³ KZ…©c¶ †Kvb KviY cª`k©b b v Kwiqv Ges
GK gv‡mi †bvwUk cª`vb Kwiqv A_ev †bvwU‡ki cwie‡Z© G K gv‡mi †eZb
cª`vb Kwiqv †Kvb wk¶vbwe‡mi PvKzixi Aemvb NUvB‡Z c vwi‡e Ges
wk¶vbwem Zvnvi PvKzix Aemv‡bi Kvi‡Y †Kvb cªKvi ¶wZc~iY cvB‡eb bv|
(2) GB wewagvjvq wfbœiƒc hvnv wKQyB _vKzK bv †Kb, Dch y³ KZ…©c¶ †Kvb
KviY bv `k©vBqv †Kvb Kg©Pvix‡K beŸB w`‡bi †bvwUk cª`vb Kwiqv A_ev beŸB
w`‡bi †eZb bM` cwi‡kva Kwiqv Zvnv‡K PvKzix nB‡Z Acm viY Kwi‡Z
cvwi‡e|Ó
Almost all the Service Rules relating to the
employees of the Government and autonomous
bodies in their respective Service Rules provide
the identical termination clause of the
employees from their services. There exists a
presumption in favour of the constitutionality
of an enactment. The burden of proof that the
legislation is unconstitutional is upon the
person who attacks it. The sole point to be 9
decided in this case is that such termination
clause is ultra vires the Constitution or parent
law, pursuant to which, the Rule has been
enacted. The High Court Division under the
provisions of Article 102 of the Constitution is
authorized to declare a law ultra vires the
constitution where the same conflicts or is
inconsistent with constitutional provisions or
fundamental rights as provided in the
Constitution or such provision is inconsistent
with the parent law which authorizes the
concerned authority to enact the Service Rules.
The word “ultra-vires” is a Latin Phrase used in
law to describe an act which requires legal
authority but is done without it. If the
subordinate legislation falls outside the
purview conferred, it is ultra vires the
Constitution. The subordinate or delegated
legislation is held to be ultra vires the
enabling or parent law when it is found to be in
excess of the power conferred by the enabling or
parent law. If the delegated legislation is
beyond the power conferred on the delegate by
the enabling Law, it would be invalid. If the
enabling or Parent Act, violates the implied
limit of the Constitution, it will be ultra-
vires the Constitution. 10
Identical issue has been discussed and
considered by this Court and the apex Courts of
the subcontinent. In the case of W.B. SEB Vs.
Desh Bandhu Gosh reported in (1985) 3 SCC 116 it
was observed that any provision in the
regulation enabling the management to terminate
the services of a permanent employee by giving
three months’ notice or pay in lieu thereof,
would be bad as violative of Article 14 of the
Constitution. Such a regulation was held to be
capable of vicious discrimination and was also
held to be naked “hire and fire rule”. In O.P.
Bhandari V. Indian Tourism Development
Corporation Ltd. reported in (1986) 4 SCC 337 it
was observed that the services of a permanent
employee could be terminated by giving him 90
days’ notice or pay in lieu thereof, would be
violative of Article 14 and 16 of the
Constitution. The whole case law as reviewed by
the Constitution Bench in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress reported
in AIR 1991 SC 101 it was observed by C.J.
Sabyasachi Mukharji,
“We have noted several decisions,
numerous as these are, and the diverse facts,
as we have found. We have noted that in some
case arbitrary action or whimsical action or
discriminatory action can flow or follow by 11
the preponderance of these powers. The fact
that the power so entrusted with a high
ranking authority or body is not always a
safe or sound insurance against misuse. At
least, it does not always ensure against
erosion of credibility in the exercise of the
power in particular contingency. Yet,
discipline has to be maintained, efficiency
of the institution has to be ensured. It has
to be recognized that quick actions are very
often necessary in running of an institution
or public service or public utility and
public concern. It is not always possible to
have enquiry because disclosure is difficult,
evidence is hesitant and difficult, often
impossible. In these circumstances, what
should be the approach to the location of
power and what should be the content and
extent of power, possession and exercise of
which is essential for efficient running of
the industries or services? It has to be a
matter both of balancing and adjustment on
which one can wager the salavation of rights
and liberties of the employees concerned and
the future of the industries or the services
involved.
Bearing in mind the aforesaid principles
and objects, it appears to us that the power
to terminate the employment of permanent
employee must be there. Efficiency and
expediency and the necessity of running an
industry or service make it imperative to
have those powers. Power must, therefore,
(be) with authorities to take decision
quickly, objectively and independently. Power 12
must be assumed with certain conditions of
duty. The preamble, the policy purpose of the
enacting provision delimit the occasions or
the contingencies for the need for the
exercise of the power and these should limit
the occasions of exercise of such powers. The
manner in which such exercise of power should
be made should ensure fairness, avoid
arbitrariness and mala fide and create
credibility in the decisions arrived at or by
exercise of the power. All these are
essential to ensure that power is fairly
exercised and there is fair play in action.
Reasons, good and sound, must control the
exercise of power.
Notice of hearing may or may not be
given, opportunity in the form of an enquiry
may or may not be given, yet arbitrariness
and discrimination and acting whimsically
must be avoided. These powers must,
therefore, be so read that the powers can be
exercised on reasons, reasons should be
recorded, reasons need not always be
communicated, must be by authorities who are
competent and are expected to act fairly,
objectively and independently. The occasion
for the use of power must be clearly
circumscribed in the above limits. These must
also circumscribe that the need for exercise
of those power without holding a detailed or
prolonged enquiry is there.“
However, majority view of the aforesaid case
was that such termination clause is arbitrary,
unjust, unfair and unreasonable offending 13
Article 14, 16(1), 19(1)(ga) and 21 of the
Constitution.
In the case of BADC and another Vs. Md.
Shamsul Haque Muzumder and others, reported in
60 DLR (AD)152 this Division has observed,
“In the instant case, the vires of
Regulation 55(2) though challenged the High
Court Division declined to declare the
regulation ultra vires as the High Court
Division thought it prudent to dispose of the
case otherwise than by striking down the
regulation. The approach of the High Court
Division is appreciated because when a case
can be decided without striking down the law
but giving the relief to the petitioners that
course is always better than striking down
the law.”
In the case of Abdul Baque and another Vs.
Bangladesh, reported in 68 DLR(AD) 235, this
Division has held,
“Regulation 54(2) of the Bangladesh
Sangbad Sangstha Employees Service
Regulations, 1995 does not provide for any
guideline for exercise of power of termination
under this Regulation and, as such, it is
prone to and permits the authority its abuse
and arbitrary and discriminatory exercise
under this Regulation which renders Regulation
54(2) being violative of fundamental right
guaranteed by Article 27 of the Constitution.” 14
But it finally did not declare such
legislation void or ultra-vires the
Constitution.
In the case of Central Inland Water
Transport Corporation Ltd. V. Brojo Nath Ganguly
and another reported in AIR 1986 SC. 1571 it was
observed,
“The law exists to serve the needs of the
society which is governed by it. If the law is
to play its allotted role of serving the needs
of the society, it must reflect the ideas and
ideologies of that society. It must keep time
with the heartbeats of the society and with the
needs and aspirations of the people. As the
society changes, the law cannot remain
immutable. The early nineteenth century essayist
and wit, Sydney Smith, said, ‘When I hear any
man talk of an unalterable law, I am convinced
that he is an unalterable fool.’ It was further
observed that “the Calcutta High Court was,
therefore, right in quashing the impugned orders
dated February 26, 1983, terminating the
services of the contesting respondents and
directing the Corporation to reinstate them and
to pay them all arrears of salary. The High
Court was, however, not right in declaring
clause (i) of Rule 9 in its entirety as ultra 15
vires Art.14 of the Constitution and in striking
down as being void the whole of that clause.”
Supreme Court of India finally passed the
following order, “………………the order passed by the
Calcutta High Court is modified by substituting
for the declaration given by it a declaration
that clause (i) of Rule 9 of the “Service,
Discipline and Appeal Rules, 1979” of the
Central Inland Water Transport Corporation
Limited is void under S.23 of the Contract Act,
1872, as being opposed to public policy and is
also ultra vires Art. 14 of the Constitution to
the extent that it confers upon the Corporation
the right to terminate the employment of a
permanent employee by giving him three months’
notice in writing or by paying him the
equivalent of three months’ basic pay and
dearness allowance in lieu of such notice.”
It is well established principle of
statutory interpretation that the object or
purpose of all constructions and interpretations
is to ascertain the intention of the law makers
and make it effective. The High Court Division
is not at liberty to declare a law void because
in its opinion it is opposed to the spirit of
the Constitution. There is a distance between
violation of the provisions of Constitution and 16
“the spirit of the Constitution”. While testing
the constitutional validity of a law the
question may arise whether the legislature was
competent to enact the law or whether the
legislature has transgressed the limits imposed
by the Constitution or parent law. In this case
such question does not arise. It is to be
presumed that the legislature understands and
correctly appreciates the need of its own
people, necessity of such harsh law for proper
administration of a government office and
instruments.
The Constitutionality of a provision of a
statute on the ground that power is vested in
the higher officials and the same is very harsh
and the same may be used in abusive manner
cannot be called in question.
It appears from the judgment and order that
the High Court Division set aside the said
provision on the ground that the same was
arbitrary and unreasonable and also violative of
the provision of audi alteram partem. So far the
observation as to violation of the provision of
audi alteram partem is concerned it is to be
remembered that where the right to prior notice
is likely to obstruct the taking of prompt
action such a right can be excluded. The right 17
to notice is excluded where the nature of the
course to be taken, its object and purpose and
the scheme of the statutory provisions prove for
such exclusion (Union of India V. Tulsiram
Patel, AIR 1985 SC 1416). In the case of
Baikuntha Nath Das V. Chief District Medical
Officer, Baripada and another reported in AIR
1992 SC 1020 it has been observed that the
principles of natural justice have no place in
the context of an order of compulsory retirement
and hence, audi alteram partem is not attracted
in case of such retirement. Where the holder of
an office is subject to termination at pleasure
he has no right to be heard before termination.
V.R. Krishna Iyer, J. in the case of the
Chairman, Board of Mining Examination and others
V. Ramjee (1977 AIR SC 965) held that unnatural
expansion of natural justice, without reference
to the administrative realities and other
factors of a given case, can be exasperating.
Whether the exercise of a power conferred should
be made in accordance with any of the principles
of natural justice or not depends upon express
words of the provision conferring the power.
54(2) of the Service Rules has not provided any
provision of issuance of notice before
termination of an employee. 18
In the case of Swadeshi Cotton Mills V.
Union of India (1981)1 SCC 664, para 33, it was
observed by Justice R.S. Sarkaria that, “The
audi alteram partem rule, (…), is a very
flexible, malleable and adaptable concept of
natural justice. To adjust and harmonize the
need for speed and obligation to act fairly, it
can be modified and the measure of its
application cut short in reasonable proportion
to the exigencies of the situation”. In the
same case it was also held that, “The situation
that demands immediate action or is preventive
or remedial, in those case one cannot wait for
the proper application of principles of natural
justice.”
In the case of Arcot Textitle Mills Ltd Vs.
Regl. Provident Fund Commr., (2013) 16 SCC 1,
Justice Dipak Mishra observed that, “Principles
of natural justice should neither be treated
with absolute rigidity nor should they be
imprisoned in a straitjacket. The concept of
natural justice sometimes requires flexibility
in the application of the rule. What is required
to be seen is the ultimate weighing on the
balance of fairness. The requirements of natural
justice depend upon the circumstances of the
case. Natural Justice has many facets. 19
Sometimes, the said doctrine is applied in a
broad way, sometimes in a limited or narrow
manner.”
Almost all the Service Rules not only in
Bangladesh, but also around the globe have
identical termination clause. Termination
clauses are necessary exceptions to the doctrine
of audi alteram partem or natural justice.
Termination clause in service rules is necessary
for the purpose of managing and supervising the
employees and maintaining discipline and order
in the service. To maintain discipline and order
in the service, sometimes it might be required
to take quick and prompt action and set aside
all the formalities. During that period, it is
necessary that the rights of general interest
are given priority over the individual interest.
Hence, in such scenario the mandatory
requirements of assigning reasons and providing
adequate opportunity of hearing might be relaxed
and decision can be taken without following
them.
Section 54(2) of the Service Rules might
appear to be a harsh provision for the concerned
individual, but such a provision is necessary
for the greater good and to prevent prospective
delinquent behavior of employees which might 20
compromise discipline and order in the service.
Hence, it can be said that the said provision
does not violate the doctrine of natural justice
or audi alteram partem, as the application of
such doctrine is excluded in the interest of
administrative efficiency and necessity.
It has been submitted that the provision of
rule 54(2) should be declared void as it is
arbitrary and violates the doctrine of audi
alteram partem or natural justice. The
provision of rule 54(2) of the Service Rules
does not violate the principle of audi alteram
partem or natural justice. Nothing is absolute
in law and the doctrine of audi alteram partem
is not an absolute doctrine to be complied with.
This doctrine has got its exceptions.
The efficiency and expediency and the
necessity of running an office make it
imperative to give the power to the employer to
terminate the employment of employees but
exercise such power should ensure fairness,
avoid arbitrariness and malafide. The Law
authorizing the authority to terminate the
service of the employees by giving reasonable
notice or pay in lieu of notice is
constitutionally valid. 21
Mere harshness or unreasonableness or
arbitrariness cannot be a ground to declare a
law void or inconsistent with the provision of
the Constitution. It has been repeatedly
observed by this Apex Court that if an incumbent
is entitled to get relief without declaring a
law void, the Court will give such relief. Since
the order of termination of the respondent No.1
was not an order of termination simpliciter but
the same was an order of dismissal in the guise
of the order of termination so the same was
liable to be declared void and the High Court
Division rightly did so. But the High Court
Division has failed to draw any conclusion as to
whether the instant provision that is Rule 54(2)
of the Anti Corruption Commission (Employees)
Service Rules, 2008 is inconsistent either with
the provision of Article 7(2) of the
Constitution or inconsistent with the provisions
provided in Chapter 3 of the Constitution or
such provision is inconsistent with the parent
law.
Considering the aforesaid facts and
circumstances, we find the substance in the
appeal.
Thus, the appeal is allowed. The judgment
and order dated 27.10.2011 passed by the High 22
Court Division in Writ Petition No.1424 of 2011
is set aside so far it relates to “set aside”
the provision of Rule 54(2) of the Service
Rules. Since the further proceeding of the Writ
Petition No.3697 of 2022 is stayed till disposal
of the Civil Appeal No.15 of 2022 and that by
the judgment and order said Civil Appeal has
been disposed of, the Civil Petition for Leave
to Appeal No.1732 of 2022 is redundant.
C. J.
Md. Nuruzzaman, J
I have had the Privilege to go through the
judgment Proposed by mylord Mr. Chief justice
Hassan Foez Siddique J and my learned brother
Mr. Justice M. Enayeture Rahim, J
Agreeing with the final decision of the
appeal, I Concur with the judgment and
guidelines as proposed by my brother Mr. Justice
M. Enayetur Rahim, in addition to above views I
have some Lexical and Constitutional views in
deciding the instant appeal.
First of all it is my considered view that the
facts of the case as has been discussed by
mylord chief Justice is suffice to dispose of
the appeal and, as such, again rewriting the
same would be nothing but repeat mark unless a 23
little bit is necessary for the proper
discussion and opinion as and where necessary.
The instant appeal had arisen from the Judgment
of the High Court Division Passed in writ
petition NO. 1424 of 2011 which was filled
challenging the provision of the Rule 54(2) of
the Anti Corruption commission (Employees)
service Rule, 2008 as well as the order of
termination as has been passed by the authority.
It would be gracious to quote the provision of
Rules 54:-
"54| PvKyix Aemvb|-(1) Dchy³ KZ©…c¶ ‡Kvb KviY c«`k©b bv Kwiqv Ges GK
gv‡mi ‡bvwUk c«`vb Kwiqv A_ev ‡bvwU‡ki cwie‡Z© GK gv ‡mi ‡eZb c«`vb Kwiqv
‡Kvb wk¶vbwe‡mi PvKyixi Aemvb NUvB‡Z cvwi‡e Ges wk¶v bwem Zvnvi PvKyix
Aemv‡bi Kvi‡Y ‡Kvb c«Kvi ¶wZc~iY cvB‡eb bv|
(2) GB wewagvjvq wfbœiƒc hvnv wKQyB _vKyK bv ‡Kb, Dch y³ KZ©…c¶ ‡Kvb KviY
bv `k©vBqv ‡Kvb Kg©Pvix‡K beŸB w`‡bi ‡bvwUk c«`vb K wiqv A_ev beŸB w`‡bi
‡eZb bM` cwi‡kva Kwiqv Zvnv‡K PvKyix nB‡Z AcmviY Kwi ‡Z cvwi‡e|" [54.
Termination of employment.-(1) The
competent authority, without assigning any
reason and by giving one month's notice or
by paying one month's salary in lieu of
notice, can terminate the service of a
probationer and the probationer shall not
receive any compensation on account of
termination of his service. 24
(2) Notwithstanding anything to the
contrary contained in these rules, the
competent authority may, without assigning
any reason, remove an employee from service
by giving ninety days' notice or payment of
ninety days' salary in cash.]
It would be further more gracious to quote
the Article 27 of the Constitutions:-
All citizens are equal before law and are
entitled to equal protection of law.
So, the subordinate legislation cannot get
primacy over the constitution.
On careful reading of the above mentioned
provisions so far these have an effect on the
terminate the service of the probationers, I too
concur with the learned Chief Justice’s view that
almost all the service Rules relating to the
government and autonomous Body’s employees possesse s
identical provisions for termination of their
services. However, regarding the termination of
services of the permanent employees, there always
contains some sort of safety bulbs or grievance
mitigating mechanisms in the respective service
Rules, which are significantly absent in the
impugned Rule. On the face of the record, it seems
contrary to the principle of Audi Alteram Partem.
Some direct consequences of such termination
policies under Rule 54(2) are that- as per Rule 51
that permanent employee will not be entitled for 25
Gratuities, how long his/her service tenure may be.
Another fatal outcome is that he/she shall be
deprived from getting pension benefits etc as per
Rule 53.
Moreover, there contains a separate Chapter 7
in the impugned Rules titling ‘General Conduct and
Discipline’ for initiating departmental proceeding
against any employee. It clearly indicates that,
provisions under Rule 54 (2) are an extraordinary
stipulation. Therefore, which bizarre situation
compelled the Appropriate Authority for resorting
such a lethal step bypassing the ordinary course of
disciplinary action against one of its staffers,
must be recorded in writing even within the ambit o f
Rule 54(2).
In the termination order of the respondent no.
1, dated 10 February, 2011, the primary cause
assigned for his termination was that he spoke fals e
and concocted facts about Commission and the “high-
ups” (EaŸ©Zb Kg©KZ©v) of the Commission. From the
organogram of the ACC it is evident that Commission
usually comprised of one Chairman and 02
Commissioners all of whom are from former high
officials of the state and no one is from alumnus o f
the Commission. In any given bureaucracy, the post
of the Secretary is the pivotal and in the
Commission this position is invariably posted from
the superior service cadres of the Government. Most 26
of the high officials are from outside of the
Commission working on deputation basis.
The mandate of the employees of the Commission
is investigation of corruption and usually most of
the time they inquires against public officials of
highest to lowest hierarchy of the Republic. The
essence of this discussion is that sometimes it is
possible that any official under investigation by
the employee of the ACC could be a batch mate or
from same service etc of the employee’s high-up.
Then, there exists, at least, theoretical
possibility of being undue influence or pressure. I n
such situation, the investigator is badly in need o f
organizational professional safeguards. The positio n
of the Secretary could play the role of such type o f
safeguard where the employee under duress can take
resort. Otherwise, the employees of the ACC should
always remain with the vicissitudes of sweet will o f
their high-up.
From this perspective, my pious wish is that
the position of the Secretary of the commission
should be appointed from the eligible officers of
the Commission by the Government.
Moveso, to strengthen the commission activities one
of the commissioner must be appointed from the high
official of Anti Corruption Commission.
For this end, establishing a separate cadre
service for ACC is a must. 27
It is better for the ACC to revise the impugned
Rules “`yb©xwZ `gb Kwgkb (Kg©Pvix) PvKzix wewagvjv, 2008 ” for creating a
just, fair and healthy atmosphere within the
organization. Because, any law legislated is not a
sacrament, it could be changed, should be amended
for coping it up to the demand of the day and
justice.
J.
Obaidul Hassan, J. I have gone through both the
judgments and orders proposed to be delivered by
the Hon’ble Chief Justice Mr. Justice Hasan Foez
Siddique and by Mr. Justice M. Enayetur Rahim.
Agreeing with the ultimate decision of the
case, I concur with the observation/guidelines
regarding exercise of power given under Rule
54(2) of the Durnity Daman Commission
(Karmachari) Chakuri Bidhimala, 2008 as proposed
by Mr. Justice M. Enayetur Rahim.
J.
Borhanuddin,J: I have gone through both the
judgment and order proposed to be delivered by the
Hon’ble Chief Justice Hasan Foez Siddique and by
Justice M. Enayetur Rahim.
Agreeing with the ultimate decision of the
case, I concur with the observation/guidelines
regarding exercise of power given under Rule 54(2)
of the Durnity Daman Commission (Karmachari) 28
Chakuri Bidhimala, 2008 as proposed by Justice M.
Enayetur Rahim since the said Rule is contrary to
the principle of audi alteram partem.
J.
M. Enayetur Rahim, J : I have had the privilege to
go through the judgment rendered by the Hon’ble
Chief Justice Hasan Foez Siddique, J.
Agreeing with the ultimate decision, it is
deemed necessary to express my views on the issues
involved in the instant case.
In this particular case the provision of the
Rule 54 (2) Anti-Corruption Commission (Employees)
Service Rules, 2008 and the order of termination of
the writ petitioner-respondent No.1 has been
challenged on the plea that the above Rule is
violative of the fundamental rights as guaranteed in
Articles 27, 29,31 and 40 of the Constitution and,
that by inserting the said Rule, the authority has
given unguided an unfettered power to remove an
employee without initiating appropriate departmental
proceedings as required under Rule 40 of the Rules
and also without reasoning which is unwarranted.
In dealing with the particular case, certain
salient facts need to be borne in mind, in
particular -
i) the writ petitioner, having obtained
Master’s degree, in the year 1985 had
applied for job and through a competitive 29
examination in the Public Service
Commission was selected and joined in the
Government Service as an Inspector in the
then Bureau of Anti-Corruption, Bangladesh;
ii) the relationship between the appellant
(employer) and the respondent (employee) is
not master and servant;
iii) during service period of the writ
petitioner, the authority having been
satisfied with his performance of service,
has given him several promotions as well as
higher pay scales and he also awarded with
appreciation and honorariums;
iv) the authority has taken the impugned action
of termination against the writ petitioner,
while a departmental proceeding was pending
and against which Writ Petition No.9278 of
2010 was also pending before the High Court
Division;
v) the writ petitioner made allegations to the
higher authority concerned against the
investigating officer, who was an army
person and had tried to save an accused of
a case, who was also an army officer;
vi) bidhi 38-45 of the Durniti Daman Commission
(Karmachari) Chakuri Bidhimala, 2008
(herein after referred to as Service Rules)
deal with the conduct and discipline of the 30
employees as well as disciplinary
proceeding and punishment; and
vii) it is now well settled that mala fide,
unfair, bias, unreasonable action of the
administrative authority is without lawful
authority and is of no legal effect.
Keeping in mind the above salient features we
may look into some cases of our jurisdiction as wel l
as Indian jurisdiction.
In the case of Hyundai Corporation vs Sumikin
Bussan Corporation and others, reported in 54 DLR
(AD),88 this Division has observed that transparency in
the decision making as well as in the functioning of the public bodies is
desired and the judicial power of review is to be e xercised to rein in any
unbridled executive functioning. In the above case this
Division relied on the case of Tata Cellular vs.
Union of India, AIR 1966 (SC)11, wherein the Supreme
Court of India has been held to the effect:
“The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is ex ercised for
any collateral purpose the exercise of that power w ill be struck
down.
Judicial quest in administrative matters has been t o find
the right balance between the administrative discretion to decide
matters whether contractual or political in nature or issues of
social policy: thus they are not essentially justic iable and the
need to remedy any unfairness. Such an unfairness is set right by
judicial review. 31
The observance of judicial restraint is currently t he mood
in England. The judicial power of review is exercis ed to rein in
any unbridled executive functioning. The restraint has two
contemporary manifestations. One is the ambit of ju dicial
intervention, the other covers the scope of the Cou rt’s ability to
quash an administrative decision on its merits. The se restraints
bear the hallmarks of judicial control over adminis trative
action.
Judicial review is concerned with reviewing not th e
merits of the decision in support of which the appl ication of
judicial review is made, but the decision making pr ocess itself.”
(Underlines supplied)
In the case of Prakash Rotan vs. State of
Bihar(2009) 14 SC, 690 the Supreme Court of India
has held that if there is a power to decide and decide detrimenta lly to
the prejudice of a person, duty to act judicially a nd fairly is implicit in the
exercise of such a power.
And also held that if any of the actions or administrative
decisions result in civil consequences, the actions or decision could be
judicially reviewed or tested on the anvil of principles of norman justice.
In the case of Canara Bank and others vs.
Debasis Das, Manu/SC/0225/2003, the Supreme Court of
India has observed that:
“Natural justice is another name for commonsense
justice. Rules of natural justice are not codified canons. But they
are principles ingrained into the conscience of man . Natural
justice is the administration of justice in a commo nsense liberal
way. Justice is based substantially on natural idea ls and human 32
values. The administration of justice is to be free d from the
narrow and restricted considerations which are usua lly
associated with a formulated law involving linguist ic
technicalities and grammatical niceties. It is the substance of
justice which has to determine its form.
The expression “natural justice” and “legal justice ” do
not present a water-tight classification. It is the substance of
justice which is to be secured by both, and wheneve r legal
justice fails to achieve this solemn purpose, natur al justice is
called in aid of legal justice. Natural justice rel ieves legal
justice from unnecessary technicality, grammatical pedantry or
logical prevarication. It supplies the omissions of a formulated
law. As Lord Buckmaster said, no form or procedure should
ever be permitted to exclude the presentation of a litigants’
defence.
Concept of natural justice has undergone a great de al of
change in recent years. Rules of natural justice ar e not rules
embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of duty to be
performed under a statute. What particular rule of natural
justice should be implied and what its context shou ld be in a
given case must depend to a great extent on the fac t and
circumstances of that case, the frame-work of the s tatute under
which the enquiry is held. The old distinction betw een a judicial
act and an administrative act has withered away. Ev en an
administrative order which involves civil consequen ces must be
consistent with the rules of natural justice. Expre ssion ‘civil
consequences’ encompasses infraction of not merely property or 33
personal rights but of civil liberties, material de privations, and
non-pecuniary damages. In its wide umbrella comes e verything
that affects a citizen in his civil life.” (Underlines supplied)
In the case of Engineer Mahmudul Islam vs.
Bangladesh, reported in 2000 BLD(AD)92 this Division
has uphold the view of the High Court Division that
the action of the official concerned must not be un fair, unreasonable and
discriminatory.
A mala-fide exercise of discretionary power is
bad as it amounts to abuse of discretion and that
mala-fide or bad faith vitiates everything and a
mala fide act is a nullify.
In case of Bihar Vs. P P Sharma , reported in
AIR 1991 SC, 1260 it has been observed that the
determination of the plea of mala fide involves two
questions namely-
i) whether there is a personal bias or oblique motive; and
ii) whether the administrative action is contrary to it
objects, requirements and conditions of a valid exe rcise
of administrative power.
In the Case of Ram Chandra Vs. Secretary to
the Government of W.B. reported in AIR 1964 Cal 265
it has been held that –
“It is commonplace to state that mala fide does no t necessarily
involve a malicious intention. It is enough if the aggrieved party
establishes-
i) that the authority making the impugned order did no t
apply its mind at all to the matter in question; or 34
ii) that the impugned order was made for a purpose or
upon a ground other than what is mentioned in the
order.”
In the Case Dr. Nurul Islam Vs. Bangladesh , 33
DLR (AD)201 section 9(2) of the Public Servants
(Retirement) Act, 1974 has not been declared ultra
vires the constitution but the impugned order of
premature retirement was declared to have made
without lawful authority, as finding that the order
was vitiated by malice in law.
In the above case Badrul Haider Chowdhury, J.
has observed –
“Neither the Act nor the rules provide any princip le or
guideline for the exercise of discretion by the Gov ernment when
it proposes to retire a Government servant under section 9(2). In
such case the scope for arbitrary exercise of discr etion cannot
be ruled out, as has happened in this case. In orde r to
circumvent the previous decision of the High Court Division, the
respondents issued the impugned notification which clearly
makes out a case of malice in law.”
Unfairness or arbitrariness amounts to an abuse
of power, Lord Scarman agreeing with the speech of
Lord Templeman observed:
“...I must make it clear my view that the principle of fairness
has an important place in the law of judicial revie w and that in an
appropriate case it is a ground upon which the cour t can intervene to
quash a decision made by a public officer or author ity in purported
exercise of power conferred by law.” 35
In a case where unfairness was alleged the House of
Lords made the following observations:
“The so-called rules of natural justice are not eng raved on
tables of stone. To use the phrase which better exp resses the
underlying concept, what the requirements of fairne ss demands when
any body, domestic, administrative or judicial, has to make a decision
which will affect the rights of individuals depends upon the character
of the decision-making body, the kind of decision i t has to make and
the statutory or other framework in which operates.”
[Reference: Constitutional Law of Bangladesh, Third
Edition, By Mahmudul Islam]
The views expressed by Sabyasachi Mukherjee, C.J.
in Case of Delhi Transport Corporation vs. D.T.C.
Mazdoor Congress and Ors. [MANU/SC/0031/1991] have been
cited by the Hon’ble Chief Justice. However, all hi s
views have not been supported by other 03(three) Ju dges
of the Bench.
In the said case B.C. Roy, J. has observed:
“162. Even executive authorities when taking admini strative
action which involves any deprivation of or restric tion on inherent
fundamental rights of citizens must take care to se e that justice is not
only done but manifestly appears to be done. They h ave a duty to
proceed in a way which is free from even the appear ance of
arbitrariness, unreasonableness or unfairness. They have to act in a
manner which is patently impartial and meets the re quirements of
natural justice.
163. It is also pertinent to refer in this connecti on the
pronouncement of this court in the case of E.P.Roya ppa V. State of
Tamil Nadu and Anr. MANU/SC/0380/1973: (1974)ILLJ172SC.
Equality and arbitrariness are sworn enemies, one b elongs to
the rule of law in a public while the other to the whim and caprice of 36
an absolute monarch. Article 14 strikes at arbitrariness in state action
and ensures fairness and equality of treatment. The principle of
reasonableness which legally as well as philosophic ally, is an
essential element of equality or non-arbitrariness pervades Article 14
like a brooding omni-presence and the procedure con templated by
Article 21 must answer the test of reasonableness i n order to be in
conformity with Article 14, it must be right and ju st and fair and not
arbitrary, fanciful or oppressive.
....................................................................................................
169. In the case of S.S. Muley V. J.R.D. Tata and o rs. [1979]2
SLR 438 constitutionality came up for consideration and this court
held the said regulation 48 to be discriminatory an d void as it gives
unrestricted and unguided power on the Authority co ncerned to
terminate the services of a permanent employee by i ssuing a notice or
pay in lieu thereof without giving any opportunity of hearing to the
employee concerned and thereby violating the princi ples of natural
justice and also Article 14 of the Constitution.
....................................................................................................
184. ………. . No opportunity of a hearing is at all to be
afforded to the permanent employee whose service is being
terminated in the exercise of this power. It thus v iolates audi alteram
partem rule of natural justice also which is implic it in Article 14. It is
not covered by any of the situations which would ju stify the total
exclusion of the audi alteram partem rule. The view that the Board of
Directors would not exercise this power arbitrarily or capriciously as
it consists of responsible and highly placed perso ns ignores the fact
that however highly placed a person may be he must necessarily
posses human frailties and “power tends to corrupt, and absolute
power corrupts absolutely.”
.................................................................................................... 37
197.................. Rule of law posits that the power to be
exercised in a manner which is just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner leavin g room for
discrimination. Regulation 9(b) does not expressly exclude the
application of the ‘audi alteram partem’ rule and as such the order of
termination of service of a permanent employee cann ot be passed by
simply issuing a month’s notice under Regulation 9( b) or pay in lieu
thereof without recording any reason in the order a nd without giving
any hearing to the employee to controvert the alleg ation on the basis
of which the purported order is made.
....................................................................................................
212. On a proper consideration of the cases cited hereinbefore
as well as the observations of Seervai in his book ‘Constitutional Law
of India’ and also the meaning that has been given in the Australian
Federal Constitutional Law by Coin Howard, it is cl ear and apparent
that where any term has been used in the Act which per se seems to be
without jurisdiction but can be read down in order to make it
constitutionally valid by separating and excluding the part which is
invalid or by interpreting the word in such a fashi on in order to make
it constitutionally valid and within jurisdiction o f the legislature
which passed the said enactment by reading down the provisions of
the Act. This, however, does not under any circumst ances mean that
where the plain and literal meaning that follows fr om a bare reading
of the provisions of the Act, Rule or Regulation th at it confers
arbitrary, uncancalised, unbridled, unrestricted po wer to terminate
the services of a permanent employee without record ing any reasons
for the same and without adhering to the principles of natural justice
and equality before the law as envisaged in article 14 of the
constitution, cannot be read down to save the said provision from
constitutional invalidity by bringing or adding wor ds in the said 38
legislation such as saying that it implies that rea sons for the order of
termination have to be recorded. In interpreting th e provisions of an
Act, it is not permissible where the plain language of the provision
gives a clear and unambiguous meaning can be interp reted by
reading down and presuming certain expressions in o rder to save it
from constitutional invalidity. Therefore, on a con sideration of the
above decisions, it is impossible to hold by readin g down the
impugned provisions of Regulation 9(b) framed Under Section 53 of
the Delhi Road Transport Act, 1950 read with Delhi Road Transport
(Amendment)Act, 1971 that the said provision does n ot confer
arbitrary, unguided, unrestricted and uncanalised p ower without any
guidelines on the authority to terminate the servic es of an employee
without conforming to the principles of natural justice and equality as
envisaged in Article 14 of the constitution of Indi a.” (Underlines
supplied).
In the above case P.B. Sawant,J. has observed:
224.………… . It is all the more improper and undesirable to
expose the precious rights like the rights of life, liberty and property
to the vagaries of the individual whims and fancies . It is trite to say
that individuals are not and do not become wise bec ause they occupy
high seats of power, and good sense, circumspection and fairness
does not go with the posts, however high they may b e. There is only a
complaisant presumption that those who occupy high posts have a
high sense of responsibility. The presumption is ne ither legal nor
rational. History does not support it and reality d oes not warrant it.
In particular, in a society pledged to uphold the r ule of law, it would
be both unwise and impolitic to leave any aspect of its life to be
governed by discretion when it can conveniently and easily be
covered by the rule of law. 39
225. The employment under the public undertakings i s a
public employment and a public property. It is not only the
undertakings but also the society which has a stake in their proper
and efficient working. Both discipline and devotion are necessary for
efficiency. To ensure both, the service conditions of those who work
for them must be encouraging, certain and secured, and not vague
and whimsical. With capricious service conditions, both discipline
and devotion are endangered, and efficiency is impaired.
226. The right to life includes right to livelihood . The right to
livelihood therefore cannot hang on to the fancies of individuals in
authority. The employment is not a bounty from them nor can its
survival be at their mercy. Income is the foundatio n of many
fundamental rights and when work is the sole source of income, the
right to work becomes as much fundamental. Fundamen tal rights can
ill-afford to be consigned to the limbo of undefine d premises and
uncertain applications. That will be a mockery of them.
227. Both the society and the individual employees, therefore,
have an anxious interest in service conditions bein g well-defined and
explicit to the extent possible. The arbitrary rule s, such as the one
under discussion, which are also sometimes describe d as Henry VIII
Rules, can have no place in any service conditions. ” (Underlines
supplied).
In the said case K. Ramaswamy J. disagreeing
with the view of Hon’ble Chief Justice, Supreme
Court of India on applicability of the ‘doctrine of
reading down to sustain the affording provisions’ and agreeing with
other 02 (two) judges has observed to the effect:
“264. The right to life, a basic human right assur ed by Article 21 of
the Constitution comprehends something more than me re animal
existence i.e. dignity of the individual. Field J. in Munn v. Illinois 40
[1876] 94 US 113 held that by the term “life” as he re used,
something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by
which life is enjoyed. The deprivation not only of life but of . . . if it a
efficacy be not fettered away by judicial decision. In Kharak Singh v.
State of U.P. Manu/SC/0085/1962: 1963CriLJ329 this Court
approved the definition of life given by Field J. i n his dissenting
opinion. In Olga Tellis v. Bombay Municipal Corpora tion [1985] 2
Su. SCR 51 this Court further laid that an equally important facet of
the right to life is the right to livelihood becaus e no person can live
without the means of livelihood. If the right to livelihood is not treated
as a part of the constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation… . That, which alone
can make it possible to live, leave aside which makes life livable, must
be deemed to be an integral component of the right to life….The
motive force which propels their desertion of their hearths and homes
in the village is the struggle for Survival, that i s the struggle for life.
So unimpeachable is the nexus between life and the means of
livelihood. Right to life does not only mean physic al existence but
includes basic human dignity.
265. The right to public employment and its concomi tant right
to livelihood, thus, receive their succour and nour ishment under the
canopy of the protective umbrella of Article 14,16( 1),19(1)g) and 21.
Could statutory law arbitrarily take away or abridg ed or abrogated
it? In Board of Trustees, Port of Bombay v. Dilip Kumar
MANU/SC/0184/1982: (1983) ILL J1SC AIR 1983 SC 109 this Court
held that the expression “life” does not merely con note animal
existence or a continued drudgery through life, the expression life has
a much wider meaning. Where, therefore, the outcome of a
departmental enquiry is likely to affect reputation or livelihood of a 41
person, some of the finer graces of human civilisat ion which makes
life worth living would be jeopardised and the same can be put in
jeopardy only by law which inheres fair procedure.”
…………................................................................................
323. ………. In a system governed by rule of law, discretion,
when conferred upon executive authorities, must be confined within
defined limits. The rule of law from this point of view means that
decisions should be made by the application of know n principles and
rules and, in general, such decisions should be pre dictable and the
citizen should know where he is. If a decision is t aken without any
principle or without any rule it is unpredictable and such a decision is
the antithesis of a decision taken in accordance wi th the rule of law.
(See Dicey-“Law of the Constitution”-10 th Edn., Introduction
cx.......... It is in this sense that the rule of law may be sa id to be the
sworn enemy of caprice. Discretion, as Lord Mansfie ld stated it in
classic terms in the case of John Wilkes “means sho uld discretion
guided by law. It must be governed by rule, not by humour; it must
not be arbitrary, vague and fanciful,” “as followed in this Court in
S.G. Jaisinghani v. Union of India. MANU/SC/0361/1 967: [1967]
651 ITR34 (SC).
324. In an appropriate case where there is no suffi cient
evidence available to inflict by way of disciplinar y measure, penalty
of dismissal or removal from service and to meet such a situation, it is
not as if that the authority is lacking any power t o make Rules or
regulations to give a notice of opportunity with th e grounds or the
material on records on which it proposed to take ac tion, consider the
objections and record reasons on the basis of which it had taken
action and communicate the same. However, scanty th e material may
be, it must form foundation. This minimal procedure should be made
part of the procedure lest the exercise of the powe r is capable of 42
abuse for good as well as for whimsical or capricio us purposes for
reasons best known to the authority and not germane for the purpose
for which the power was conferred. The action based on recording
reasoning without communication would always be vie wed with
suspicion. Therefore, I hold that conferment of pow er with wide
discretion without any guidelines, without any just , fair or reasonable
procedure is constitutionally anathema to Article 1 4,16(1), 19(1)(g)
and 21 of the Constitution. Doctrine of reading dow n cannot be
extended to such a situation.” [underlines supplied]
If we consider the above ratio decidendi/obiter
dictum coupled with the salient facts and
circumstances of the present case, in particular
that the authority had exercised its power conferred
under Rule 54(2) of the Service Rules when a
departmental proceeding was pending against the writ
petitioner, which was also challenged by the writ
petitioner vide writ petition No.9278 of 2010 and
the same was pending for hearing and further, that
he made complaint before the authority concerned
against the investigation officer who was on
deputation, then it is very difficult to arrive at a
definite conclusion that the authority had taken th e
impugned decision of termination against the writ
petitioner in exercising its discretionary power
conferred in rule 54(2) of the Service Rules fairly,
justly, reasonably, bona fide and, without any
oblique motive. The present appellant contested the
Rule without filing affidavit-in-opposition and it
failed to produce any scrap of paper before the 43
Court to show that the decision making process was
fair, just, bona fide and not whimsical and also
without any oblique motive.
In view of the above, the High Court Division
did not commit any error or illegality in declaring
the impugned decision of termination of the writ
petitioner-respondent in exercising discretionary
power as conferred in rule 54(2) of the Service
Rules without lawful authority and is of no legal
effect.
However, there is no scope to dis-agree with
the well settled proposition of law as laid down in
the cases of Dr. Narul Islam Vs. Bangladesh, 33
DLR(AD)201; BADC and another vs. Md. Shamsul Hoque
Majumder and others, 60 DLR (AD)152 and Abdul Hoque
and another vs. Bangladesh, 68 DLR(AD)235 that mere
harshness or unreasonableness or arbitrariness
cannot be a ground to declare a law void or
inconsistent with the provision of the constitution
and, that if an incumbent is entitled to get relief
without declaring a law void, the Court will give
such relief.
Vis-a-vis it should be borne in mind that the
right to life includes right to livelihood and the
said right of livelihood cannot be hanged on the
fancies of the authority as the income is the
foundation of many fundamental rights.
It has already been discussed that exercise of
discretionary power by the authority must be guided 44
by the relevant law/rules or some principle to avoi d
arbitrariness, unfairness and unreasonableness. As
such it is expected that the authority concerned,
i.e. the Anti-Corruption Commission should follow
the following observations/guidelines in order to
exercise power given under Rule 54(2) of the Service
Rules-
i. the Durnity Daman Commission (Karmachari) Chakuri B idhimala,
2008 has prescribed the procedure to initiate depar tmental
proceeding against an employee for the offence comm itted by him
including misconduct affording all opportunities of Principle of
Natural Justice and ensuring all rights to defend h is case hence, it
should not apply the provisions of Rule 54 (2) of t he Durnity Daman
Commission (Karmachari)Chakuri Bidhimala,, 2008 at first to get rid
an employee unless situation demands so;
ii. the provisions of Termination Simplicitor should no t be used in a
fanciful manner when there is other way out;
iii. since bidhi 54 (2) of the Durnity Daman Commission
(Karmachari)Chakuri Bidhimala, 2008 has given unfet tered and
unguided power to the Anti-Corruption Commission au thority to get
rid of any employee who is causing displeasure to t hem without
assigning any reason which is opposed to the 'Principle of Natural
Justice" and of 'audi alteram partem' therefore, it is expected that
the authority must exercise the power under Rule-54 (2) the Service
Rules of 2008 with utmost care and caution; 45
iv. since bidhi 54 (2) of the Durnity Daman Commission
(Karmachari)Chakuri Bidhimala, 2008 creates a sense of insecurity
in the minds of the employees to perform their duties with honesty
and courage therefore, under rule 54 (2) of the Service Rules of 2008
the employer must exercise the power only in specia l cases where it is
necessary and other employees also find the decisio n of the authority
as rational;
v. an employee of Anti-Corruption Commission usually w orks with
serious cases of corruption and misappropriation of power and
position committed by the most powerful stake holde rs of the country
including the most powerful businessman, politician s of the country
and the bureaucrats of the Governments, the authori ty while
exercising the power of ‘Termination’ must remain c areful that
nobody is victimized at the behest of high ups;
vi. the service of an employee of a Statutory Corporati on, Public Body,
National Enterprise etc. is not like that of a master and servant rather
their tenure of service and other terms and condition are based on the
relevant Statute and the Service Regulations, Thus extra ordinary
power to terminate any employees with three months’ notice or pay in
lieu of who has served a long time is always discouraged;.
vii. case of every employee is required to be dealt with on merit by the
concerned authority before they decide to terminate him from his job.
Since the law empowers the authorities with such ex tra ordinary
weapon, it should be used only in an extra ordinary situation and as a
last resort, on consideration of individual merit o f each and every
case and not otherwise; 46
viii. an employee should not be terminated by using Rule 54 (2) as a tool
in the garb of a constructive dismissal;
ix. without assigning any reason as envisaged in Rule 5 4 (2) does not
mean without having any reasons. Reason or reasons must be
recorded in the note sheet before the Authorities t ake its decision to
terminate an employee;
x. selection for Termination under Rule 54 (2) shall b e made fairly and
justly, without any pick and choose, without any bi as, without any
discrimination under the mandate of the Constitutio n of the People's
Republic of Bangladesh. The parameters of such term ination has to
be set in accordance with the equality provision of the Constitution;
xi. the authority must act rationally in its decision m aking process within
the concept of Wednesbury Reasonableness;
xii. no employee should be terminated from his service a gainst whom any
departmental proceeding has already been initiated and pending with
specific charges; in that situation, the authority must conclude the
proceeding and punish the accused if he is found gu ilty. Not in any
other manner.
It is also expected that all the Government,
Semi-government, Autonomous bodie(s),
Corporation(s), Statutory bodie(s), institution(s)
should follow the above observations/guidelines in
taking action of termination against its employee
whatever discretionary power has been conferrer
given in the relevant law/Rules. 47
With the above considerations, discussions,
observations and findings, I am agreeing with the
judgment proposed to be delivered by the Hon’ble
Chief Justice.
J.
Courts Order
The appeal is allowed. The judgment and
order dated 27.10.2011 passed by the High Court
Division in Writ Petition No.1424 of 2011 is set
aside so far it relates to “set aside” the
provision of Rule 54(2) of the Service Rules.
Since the further proceeding of the Writ
Petition No.3697 of 2022 is stayed till disposal
of the Civil Appeal No.15 of 2022 and that by
the judgment and order said Civil Appeal has
been disposed of, the Civil Petition for Leave
to Appeal No.1732 of 2022 is redundant.
C. J.
J.
J.
J.
J.
J.
J.
The 16th March, 2023
halim/words-10532/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS. 10-12 OF 2022
(Arising out of C.P Nos. 1903 of 2020, 2149 of 2020
and 2024 of 2020 respectively)
Bangladesh Bank, represented by
its Governor, Bangladesh Bank
Bhaban, Motijheel Commercial
Area, Dhaka and another
.... Appellants
(In C.A. No.10 of 2022)
Managing Director, United
Finance C ompany Limite d,
Camellia House, 22, Kazi Naz rul
Islam Avenue, Dhaka-1000
... Appellant
(In C.A. No.11 of 2022)
Managing Director, Social Islami
Bank Limited, City Centre (19 th
Floor), 90/1, Motijheel C/A,
Dhaka-1000
... Appellant
(In C.A. No.12 of 2022
-Versus-
Homeland Footwear Limited,
represented by its Managing
Director, Mr. Amir Hossain and
others
....Respondents
(In all the appeals)
For the Appellants
(In C.A. No.10 of
2022)
: Mr. Shamim Khaled Ahmed, Senior
Advocate instructe d by Mr. Md.
Abdul Hye Bhuiyan, Advocate -on-
Record
For the Appellant
(In C.A. No.11 of
2022)
: Mr. Khan Mohammad Shamim Aziz,
Advocate instructed by Mr.
Mohammad Ali Azam, Advocate -on-
Record.
For the Appellant
(In C.A. No.12 of
2022)
Mr. Khan Mo hammad Shamim Aziz,
Advocate instructed by Mr.
Mohammad Ali Azam, Advocate -on-
Record.
For Respondent
Nos.1-2
(In all the cases)
Mr. Amir Hossain (In person)
For Respondent
Nos.3-4
(In C.A. No.11 of
2022)
Mr. Md. Abdul Hye Bhuiyan,
Advocate-on- Record
Respondent Nos.3-5
(In C.A. No.10 of
2022)
Not represented
Respondent Nos.5-6 Not represented 2
(In C.A. No.11 of
2022)
Respondent Nos.3-6
(In C.A. No.12 of
2022)
Not represented.
Date of Hearing : 25.07.2023, 26.07.2023 and
02.08.2023.
Date of Judgment 08.08.2023
J U D G M E N T
Md. Ashfaqul Islam, J: All these civil appeals by leave are
directed against the judgment and order dated 13.09.2020
passed by the High Court Division in Writ Petition No. 52
of 2020 making the Rule s absolute with a dir ection upon
the writ respondent Nos. 1 and 2 to remove the names of
the writ petitioners from the Credit Information Bureau
(in short, CIB) report immediately.
These 3 (three) civil appeal s are heard together and
disposed of by this single judgment.
Short facts are that, the present respondent Nos.1
and 2 herein as petitioners filed the aforesaid Writ
Petition being No.52 of 2020 before the High Court
Division challenging the publication of the ir names in
the CIB Report of Bangladesh Bank seeking direction upon
the writ respondent Nos.1 and 2 , (appellants herein) to
remove their names from the CIB report of Bangladesh Bank
stating, inter alia, that the writ petitioner No.1 is a 3
private limited company engaged in Manufacturing Footwear
Products as well as to export the domestic consumption as
same. The writ petitioner No.2 was the Managing Director
(shortly MD of the writ petitioner No.1's Company). Apart
from that, the writ petitioner No.2 is also the
proprietor of "M/S Homeland Plastic Industries" and "M/S
Amir Trading". During the course of business by the writ
petitioner No.1, the writ petitioner No.2 invested an
amount of Tk. 45,07,386.00/ - in writ petitioner No.1 ’s
company in the year 1999. However, the writ petitioner
No.1 failed to pay -off the said in vestment within the
stipulated time. In such a situation, the writ petitioner
No.2 filed an application under section 241 (v) of the
Companies Act, 1994 for winding up of the writ petitioner
No.1’s company for the failure to pay its debt to the
creditors before the High Court Division which gave rise
to Company Matter No.59 of 2001. After serving due notice
upon the writ respondents of the winding up proceedings,
the High Court Division ultimately, vide judgment and
order dated 21.07.2002, allowed the application and wound
up the writ petitioner No.1 ’s company. Against the above
judgment and order dated 21.07.2002 passed by the High 4
Court Division, the writ petitioner No.1 filed Civil
Petition for Leave to Appeal No. 1552 of 2002 before this
Division. This Di vision eventually vide judgment and
order dated 14.07.2003 dis missed the said Civil Petition
for Leave to Appeal and affirmed the judgment and order
passed in Company Matter No.59 of 2001.
Subsequently, the writ petitioner No.2 entered into
an agreement w ith the earlier management of writ
petitioner No.1's company on 17.07.2004 and in view of
the said agreement, the writ petitioner No.2 filed an
application before the High Court Division under section
253 of the Companies Act, 1994 for staying the winding up
proceedings and the High Court Division by its order
dated 18.07.2004 allowed the said application and stayed
the proceedings of winding up of the writ petitioner No.1
for a period of 6 (six) months resulting in maximum
shares of the previous Directors and Shareholders of the
writ Petitioner No.1 being transferred to the writ
petitioner No.2 and thereby the writ petitioner No.2
acquired more than 51% of the total share s holding the
writ petitioner No.1’s company. 5
Subsequently, on 21.10.2017, the said or der of stay
was extended perpetually and the writ petitioner No.2 was
allowed to carry on the business of the writ petitioner
No.1 and the company started running under the
stewardship of the writ petitioner No.2 as per the scheme
allowed by the High Court Division.
It has been further stated that, the writ petitioners
did not avail any credit facilities from any financial
institution after writ petitioner No.1’s company is wound
up. On 28.07.2019, the writ petitioner No.2 applied for
availing credit facil ities from National Credit and
Commerce (shortly NCC) Bank Ltd. for opening a Letter of
Credit (shortly LC) valuing USD 29,400.00 for his
proprietorship concern "M/s Homeland Plastic Industries".
But the NCC bank vide its letter dated 05.08.2019,
apprised the writ petitioner No.2 that, since his name
has been enlisted in the CIB , it was unable to make any
accommodation extending credit facilities. Having
learned, the writ petitioner No.2 made several
representations to Bangladesh Bank to let him know at
whose instance the writ petitioner’s name has been
reported in the CIB, but the writ respondent No.2, 6
Bangladesh Bank replied that it was not bound to disclose
the name of the creditor. Under the aforesaid facts and
circumstances, finding no other alternative efficacious
remedy, the writ petitioners filed the aforesaid writ
petition before the High Court Division and obtained
Rule.
The writ respondent Nos. 4 and 5 contested the Rule
by filing affidavit-in-opposition.
In due course, after hearing both the par ties a
Division Bench of the High Court Division made the Rule
absolute by the impugned judgment and order dated
13.09.2020.
Feeling aggrieved, by the judgment and order dated
13.09.2020 passed by the High Court Division, the present
appellants filed three separate Civil Petitions for leave
to appeal and ob tained leave giving rise to these
appeals.
Mr. Shamim Khaled Ahmed, the learned Senior Advocate
appearing on behalf of the appellant in Civil Appeal No.
10 of 2022 and Mr. Khan Mohammad Shamim Aziz, the learned
Advocate appearing on behalf of the appellants in Civil
Appeal Nos. 11 and 12 of 2022 submits that the High Court 7
Division erroneously failed to consider that writ
respondent No.2 having come to know from a letter dated
13.01.2020 issued by the wr it respondent No.4 , Social
Islami Bank Limited detailing latest composition of the
writ petitioner No.1 ’s company showing that the name of
the writ petitioner No.2 appeared in Form XII as holding
the position of Managing Director of the company as on
06.12.2015 and from the plaint of Artha Rin Suit No.22 of
2019 instituted by writ respondent No.5 , United Finance
Limited it was presumed that the writ petition er No.1’s
company was a defaulting borrower, and under the
provision of section 5 (Ga Ga) of the Bank Companies Act,
1991 as amended turned the writ petitioner No.2 also
defaulting borrower and, therefore, that there was no
illegality in reporting by the bank concerned the names
of the petitioners in the report of CIB of Bangladesh
Bank, as per section 27 (ka ka) (1) of Bank Companies
Act, 1991 as amended.
He further submits that the High Court Division
failed to consider that writ petitioner No.2 himself
admitted liability of the loan and failed to pay the
outstanding amount, as such the writ respondent No.2 has 8
no option but to send to requiring bank or financial
institution the name of the defaulting borrower from bank
and financial institution in the database of the CIB of
Bangladesh Bank after receiving the name of the creditor
banks.
He next submits that the High Court Division
misconceived that by the agreement dated 17.07.2004 all
the liabilities of the writ petitioner No.1’s company
were taken over by the earlier management. However, the
High Court Division failed to take note of the pivotal
fact that the liabilities of the writ petitioner No.1,
company to the writ petitioner No. 2 were not covered by
the said agreement at all and eventually continue to
attach with the writ petitioner No.1, company. Thus,
sending the name of the writ petitioner No.1, company to
CIB by the appellants is well founded under the
prevailing laws and rules. The name of the writ
petitioner No.2, however, appears in the CIB as the
respondent No.1 being his "
".
He also submits that the High Court Division erred in
law by holding that since under section 5 (Ga Ga) of the
Bank Companies Act, 1991 defaulting borrower means debtor 9
person or institution which the writ petitioner No.1 was
not defaulter because the High Court Division having
earlier purported to have fou nd that the writ petitioner
No.2 took over the man agement of writ petitioner No.1,
company unencumbered on 22.07.2004 on the ground that the
High Court Division was totally misconceived by holding
previous liability of the writ p etitioner No. 1, Company
were to be borne by its earlier management. It was
clearly settled principle of company law that liability
as well as asset of a company being a juristic person
belongs to the company as laid down by House of Lords in
Solomon versus Solomon [1897] AC 22 and followed in
Punjab Ali Pramanik's case reported in 29 DLR AD 185.
Mr. Amir Hossain (in person) appearing on behalf of
the respondent Nos. 1 -2 in all the cases and Mr. Md.
Abdul Hye Bhuiyan, the learned Advocate -on-Record
appearing on behalf of the responde nt Nos. 3 and 4 in
Civil Appeal No. 11 of 2022 made submissions in support
of the impugned judgment and order of the High Court
Division.
We have h eard the learned Advocates for the
appellants and Mr. Amir Hossain (in person) appearing on 10
behalf of the re spondent Nos. 1 -2. We have also p erused
the impugned Judgment and order of the High Court
Division and other materials on record carefully.
At the very outset we felt it proper to address first
on the question of maintainability in filing the
aforesaid writ petition as raised by the learned
Advocates for the appellants.
It's true that under section 27ka of the Act of 1991
no resignation of a director of a defaulting company can
be effected or he/she can transfer or sell out share
without the approval of it s creditor or financial
institutions. Record shows, none of the writ respondent
nos. 4 and 5 raised any claim of having liabilities
towards the writ petitioner no. 1 during the entire
winding-up proceedings initiated vides Company Matter No.
59 of 2001 and subsequent proceeding of its stay.
Further, from the order dated 18.07.2004 and
29.10.2017 passed by the High Court Division it further
appears that, while staying the winding up perpetually,
the scheme for taking over the management of writ
petitioner n o. 1, company transferring share by the
previous directors of writ petitioner no. 1 to writ 11
petitioner no. 2 was approved on the basis of the
agreement dated 17.07.2004 and writ petitioner no. 2
became its Managing Director on 22.07.2004. To date, (for
the last 16 years) the said order staying winding -up of
the writ petitioner no. 1 remained unchallenged by any of
the creditors who now raised the issue characterizing the
writ petitioners as defaulting -borrowers. Conversely,
within the very knowledge of writ respondent nos. 4 -5,
name of the writ petitioner no. 2 was entered into the
register of joint stock company and firm confirming him
as the Managing Director of writ petitioner no. 1,
company and basing on that very point, the learned
counsel for present appellant (writ respondent no. 4) has
very robustly asserted that, the name of the writ
petitioner no. 2 has rightly been referred for reporting
in the CIB since he is the Managing Director of writ
petitioner no. 1, company.
Now let us examine the very vit al point-in-issue in
the instant case as to whether both the writ petitioners
(respondent No. 1 and 2 herein) can be termed as
defaulting-borrowers under the purview of section 5 (ga
ga) of the Act of 1991. In this regard, all the 12
appellants in a chorus ass erted that, since the writ
petitioner no. 2 is holding 51% shares in writ petitioner
no. 1, company and writ petitioner no. 1 became the
defaulting-borrower and the same is the "
" of
writ petitioner no. 2, so both are defaulting -borrowers
and their names have rightly been referred under section
27(ka ka) of the Act of 1991 by the writ respondent nos.
4-5 to writ respondent no. 2, Bangladesh Bank for
reporting it in the CIB. Whereas, Mr. Amir Hossain’s (in
person) contention is that, the credit facilities if
taken, it was availed by the earlier management of writ
petitioner no. 1, company and the said liabilities will
never be vested upon writ petitioner no. 2 and in the
same vein, writ petitioner no. 1 cannot be termed as any
defaulting-borrower as well. He further avers that, since
no such creditors raised their liabilities against the
writ petitioner no. 1, company during the entire winding
up proceedings in spite of serving statutory notice of
the said winding up proceedings upon all the creditors so
at this stage (after long 18 years), they ( writ
respondent nos. 4-5) are totally precluded from levelling
this writ petitioner no. 1 as defaulting-borrower. 13
In this regard from the agreement dated 17.07.2004
and that of the order passed on 1 8.07.2004 staying the
winding-up proceedings made under Section 253 of the
Companies Act we find that in clause nos. 3, 4 and 7 of
the said agreement, it has clearly been set -out how the
management and share of the previous
shareholders/directors would be transferred to the writ
petitioner no. 2 and how the liability of writ petitioner
no. 1, company be resolved by earlier management. In the
agreement in particular, in clause no. 4 thereof, it has
clearly been outlined that, (writ petitioner no. 2)
”. And then in
clause no. 7, it has also been agreed by the party nos. 1
and 2 of the 2nd party to the said agreement to the effect
that: "
-
- -
- ”.
Now question may crop up, whether as per section 5 (
Ga Ga) of the Act of 1991, this writ petitioner no. 1,
company is any "
" of writ petitioner no. 2 and
as per explanation thereof (in section 5gaga) writ 14
petitioner no. 2 will be regarded as defaulting -borrower
for owning 20% above share s in writ petitioner no.1,
company. In the first place, what we view that, as per
section 5gaga of the Act of 1991 defaulting -borrower
means, debtor person or Institution -
) and in the above discussion, we find that writ
petitioner no. 2 took over the management of writ
petitioner no. 1, company totally unencumbered on
22.07.2004 when previous liability of the writ petitioner
no. 1, company will be borne by earlier management.
Further, it is admitted position that the writ
petitioner No. 2 since his stepping into the management
of writ petitioner no. 1, company has not availed any
loan from any creditors let alone writ respondent nos. 4-
5 and the High Court Division allowed the said
arrangement by staying the winding up proceedings. So
under no circumstances, can the writ petitioner No. 1 be
termed as defaulting-borrower so does the writ petitioner
no. 2 for being "
" of him for mere having 51%
shares holding in writ petitioner no. 1, company.
Invariably, it is not the true import of section
5gaga or 27 (kaka) to put a company sick for time 15
immemorial on the plea of defaulting -borrower when its
earlier liability is being effectively dealt with in the
court of law having sufficient security. Further, the
main objective of staying the winding up proceeding was
to rescue the company from the debt burden and to rebound
the company. But the action taken by the creditors has
totally jeopardized all its honest effort. If such a
hostile attitude continues by the creditor bank towards
the promising industries very industrialization in our
country would become a far cry.
More so, as has been stated earlier, the previous
management of the writ petitioner no. 1, company had
taken over the responsibility of squaring up all the
liability and that very commitment clearly embodied in
the conditions of the agreement which became the part of
the order of this court while staying the winding -up
proceeding. In such a situation, the writ respondent Nos.
4-5 and that of Bangladesh Bank rather should have played
a decisive role as of savior of writ petitioner No. 1,
company for the rapid economic growth of this country
when bo th writ respondent N os. 4 -5 have been pursuing
their claims in the court of law against their secured 16
loan. But from the manner the writ respondent No. 2 asked
for furnishing information about writ petitioner No. 2
from writ respondent N o. 4 clearly put it s regulatory
authority in the wane.
By all accounts, neither the writ petitioner No. 1
nor the writ petitioner No. 2 be termed as defaulting -
borrower within the meaning of sections 5gaga and 27kaka
of the Bank Companies, Act, 1991.
Now let us explore their involvement in providing
credit facilities to the writ petitioners and whether at
their instance the writ petitioners can be regarded as
defaulting-borrowers.
We find that, a money suit being Money Suit No. 53 of
1998 and upon a decree, it was initiated Money Decree
Case No. 12 of 2000 which then re -numbered as Artha
Execution Case No. 601 of 2003 which is now pending. By a
letter dated 04.12.2016 issued by writ petitioner no. 2,
it asserted that, the writ petitioner no. 2 admitted the
claim of writ respondent no. 4 of the loan of 31,00,000/-
and prayed for providing writ petitioner No. 1
installment to pay it off and even the writ petitioner 17
no. 2 gave a cheque amounting to taka 1,00,000/ - to
respondent no. 4 (though it is dated 04.06.2017).
It is admi tted position, writ respondent No. 4 did
not turn up to claim such liability in the winding up
proceedings. Then in the agreement dated 17.07.2004
annexed with the application for stay of the winding up
proceeding, it was agreed by the earlier manag ement that
the liability of the writ respondent No. 4 would be paid
off by them. Most importantly, the writ petitioner no. 2
was not any party to the suit or execution case. Also, it
appears that, earlier management to writ petitioner no.
1, company failed to liv e-up their commitment. Had it
been the case, then consequence will follow the creditor
would realize the default amount though filing case and
then through execution case which it has done and the
said loan is secured one from where one Rupali Bank
liquidated their claim by selling 'kha' scheduled
property out of three schedules appended in the schedule
of the execution case filed by the writ respondent no. 4.
Also, mere praying for waiver of loan taken by
earlier management per se does not make one defaul ting-
borrower when record shows, writ petitioner no. 2 has got 18
no loan liability with writ respondent no. 4 and only for
that neither the writ petitioner no. 1 nor the writ
petitioner no. 2 can be termed as defaulting-borrowers.
Last but essentially not t he least, from the
Affidavit-in-Opposition filed by writ respondent no. 2,
it manifests that, till 22.12.2019, the name of the writ
petitioner no. 2 had not been referred by writ respondent
no. 4 to report in the CIB. So, it is palpably clear
that, until 0 5.08.2019- that is, the date of refusal by
the NCC bank to accommodate credit facilities to the writ
petitioners, the name of the writ petitioner no. 2 was
not in the CIB list. So all the above material
proposition lead us to conclude that, the name of the
writ petitioners has been sent to the writ respondent no.
2 for enlisting in the CIB database for an ulterior
motive to deprive them to avail any credit facilities and
to run their business smoothly.
We find that for a loan amounting to taka
35,80,378.00/- availed by writ petitioner no. 1 and its
previous management, it filed Artha Rin Suit No. 22 of
2019 only on 10.01.2019 claiming taka 34,72,994.00/ - as
on 27.12.2018. Despite the fact that, the loan was 19
availed on 12.05.1999 and winding up proceeding of the
writ petitioner no. 1, company had been continuing in the
year 2001 but it did not raise any claim during that
period. Moreover, it shows from the plaint of the suit
that, former Managing Director of writ petitioner no. 1,
company has been impleaded as defendant no. 2 in the said
suit, despite the facts that, at the time of filing of
the suit he was no more in the company as the writ
petitioners and writ respondent no. 4 supplied the
current composition of the Board of Directors in the
company in their respective Supplementary -Affidavits
which conversely proves that, the writ petitioner no. 2
had no loan liability towards writ petitioner no. 1,
company.
The learned counsel for the appellants gave much
emphasis on the application of section 27kaka(4) of the
Bank Companies Act, 1991 that asks the creditor to file
suit against its defaulting -borrower for which it has
compelled to file that suit. Since in the agreement dated
17.07.2004, the name of the writ respondent No. 5 is
absent showing it as any credit or nor it filed the suit
against the writ petitioner no. 2 and lastly, since in 20
the said agreement the writ petitioner no. 2 had been
exonerated of any liability of writ petitioner no. 1,
company so under no circumstances, can these writ
petitioners be ter med as defaulting -borrowers at its
instance. Obviously, th e writ respondent No. 5 could
realize its outstanding dues if any, from the earlier
management of the writ petitioner no. 1, company which it
is still pursuing.
Though, Bangladesh Bank, writ respondent no. 2
claimed to have played its role in reporting the name of
the writ petitioner in the CIB database in compliance
with the provision of Chapter IV of Bangladesh Bank
Order, 1972 as well as section 27kaka (2) of the Act of
1991 but in fact, Banglades h Bank has no role to play
apart from sending the name of the defaulting -borrowers
to all the banking company and financial institutions in
the country under the said provisions of law.
Since the writ petitioner no. 2 after taking the
responsibility of t he writ petitioner no. 1, company on
22.07.2004 has not availed any credit facilities for writ
petitioner no. 1, company and since in the agreement
executed by the writ petitioner no. 2 with its earlier 21
management of writ petitioner no. 1, the writ petitioner
no. 2 had not taken any liabilities of its creditor and
there has been clear stipulation in the said agreement
that, the previous management will bear all the
liabilities of the creditor where in the name of the
creditors has also been mentioned so the name of the writ
petitioners can never be shown in the CIB. Furthermore,
since the very agreement that has been annexed to the
application for stay of the winding up proceeding became
part of the order of the High Court Division, so under no
circumstances, the writ petitioners can be termed as any
defaulting-borrower. If there had no such stipulation in
the agreement retaining the liabilities of earlier
management towards their creditor in that event, the
facts would have been otherwise. Also, since the or der
dated 18.07.2004 passed by the High Court Division is
still in force so under no circumstances, the writ
petitioner no. 1 and the writ petitioner no. 2 can be
termed as any defaulting -borrower within the meaning of
section 5gaga of the Act of 1991.
As it has been observed in the foregoing paragraphs
that, though the loan of the writ respondent nos. 4 and 5 22
towards the writ petitioner no. 1 has surfaced soon after
issuance of the rule when Bangladesh Bank filed
Affidavit-in-Opposition and till then th ose two
respondents kept silent for last 18 years but since they
have already taken proper steps in realizing the dues
from the writ petitioner no. 1, company and its earlier
management so there has been no scope to ho ld the writ
petitioners for the liabil ity of such loan and in the
same vein these petitioners cannot be regarded as any
defaulting-borrower.
The borrower who takes over the management
unencumbered can in no way be responsible of the previous
liabilities which must be vested upon the previou s
management. In the instant case , the respondent no. 1,
company did not avail any loan after the new management
took over the charge of it so, as per the agreement and
that of the order of the High Court Division staying the
winding-up proceeding , they ca nnot be treated as
defaulting-borrowers.
We, therefore, hold that in no way the respondent
Nos. 1 and 2 can be treated as defaulting -borrower and
the High Court Division has rightly declared their 23
enlistment in the CIB report illegal directing to remove
their names from the CIB report . The judgment and order
passed by the High Court Division is elaborate , speaking
and well composed. We are not inclined to interfere with
the same.
Accordingly, all these appeals are dismissed,
however, without any order as to costs.
CJ.
J.
J.
J.
The 08th August, 2023
/Ismail,B.O./*4412*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Hasan Foez Siddique, C. J.
Mr. Justice M. Enayetur Rahim Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS. 145-151 OF 2016
(From the judgment and order dated 13th of February 2014 passed by the High Court
Division in Writ Petition Nos. 1606-1612) .
Government of Bangladesh, represented by the Secretary,
Bangladesh Parliament, Sher-e-Bangla Nagar, Dhaka and
others
..............Appellants.
(In all the cases)
=Versus=
Md. Masud Rana
..............Respondent.
(In C.A.No.145 of 2016)
Md. Abu Bakar Siddique ..............Respondent
(In C.A.No.146 of 2016)
Md. Hamidul Islam ..............Respondent.
(In C.A.No.147 of 2016)
Md. Mokbular Rahman ..............Respondent
(In C.A.No.148 of 2016)
Md. Zahed Ali ..............Respondent
(In C.A.No.149of 2016)
Md. Asraful Islam ..............Respondent
(In C.A.No.150 of 2016)
Begum Samena Khatun ..............Respondent
(In C.A.No.151 of 2016)
For the Appellants :
(In all the appeals)
Mr. A. M. Amin Uddin, Attorney General, with
Mr. Mohammad Saiful Alam, Assistant Attorney
General¸ instructed by Mr. Haridas Paul,
Advocate-on-Record.
For the Respondent : (In C.A.No.145 of 2016) Mr. Probir Neogi, Senior Advocate with
Ms. Tania Amir, Senior Advocate, instructed by
Mr. Mvi. Md. Wahidullah, Advocate-on-Record
For the Respondents : (In C.A.No.146-151 of 2016) Mr. Zulhas Uddin Ahmed, Advocate, instructed
by Mr. Mvi. Md. Wahidullah, Advocate-on-
Record
Date of hearing :
The 8th and 16th day of August, 2023
Date of judgment :
The 31st day of August, 2023
JUDGMENT
M. Enayetur Rahim, J: These civil appeals, by leave, are
directed against the judgment and order dated 13.02.2014
passed by the High Court Division in Writ Petition Nos.1606-
1612 of 2010 making the Rules absolute. All the appeals have
been heard together and they are being disposed of by this
common judgment.
2
The facts, relevant for disposal of these appeals, in
short, are that the petitioner in writ petition No. 1606 of
2010, presently respondent was appointed as “Receptionist”
and petitioners in writ Petition Nos. 1607-1611 of 2010,
presently respondents were appointed as “MLSS” and the
petitioner in Writ petition No. 1612 of 2010, presently
respondent was appointed as “Proof Reader” of Bangladesh
Parliament Secretariat following the Recruitment Rules of
Bangladesh Sangshad Sachibaloy, 1994.
In the writ petitions, it was contended that in response
to the advertisement published in the Daily Newspapers
inviting application for several posts for the office of
Bangladesh Parliament Secretariat, the writ petitioners
applied for their respective vacant posts. Written examination
and viva-voce was held and upon duly concluding all the
appointment procedure, the writ petitioners received their
respective appointment letters as probationary employee for a
period of 02 (two) years. After successful completion of two
years probationary period they were confirmed effective from
the date of their joining in the said service considering
their satisfactory performance under Rule 6(3) (Ka) of the
Sangshad Sachibaloya, Employees and Officers Appointment
Rules, 1994.
All of a sudden the writ respondent No. 2 issued a letter
dated 18.02.2010 relieving all the writ petitioners from their
respective services.
Being aggrieved by the said order dated 18.02.2010 all the
writ petitioners moved before the High Court Division by
filing different writ petitions.
3
A Division Bench of the High Court Division upon hearing
all the Rules together by a common judgment and order dated
13.02.2014 made all the Rules absolute.
Feeling aggrieved by the said judgment and order
passed by the High Court Division, the writ-respondents as
petitioners filed Civil Petitions for Leave to Appeal Nos.
1519, 1522-1526 and 1530 of 2014 before this Division and
leave was granted on 07.02.2016. Hence, these appeals.
Mr. A.M. Amin Uddin, learned Attorney General,
appearing on behalf of the appellants submits that the High
Court Division erred in law in failing to appreciate that the
impugned order was issued pursuant to a decision adopted in a
proceeding of the Parliament on the basis of recommendations
made by a Parliamentary Committee formed by the Speaker under
Article 76(2) (C) (d) of the Constitution as well as under
Rules laid down in the chapter XXVI of the Rules of Procedure
of Parliament to enquire into the allegations relating to
corruption, misuse of power, wastage of public fund by the
then Speaker, Barrister Mohammad Jamiruddin Sirker, and the
Proceedings of the Parliament is immuned from challenge under
Article 78 of the Constitution and as such, the impugned
judgment and order passed by the High Court Division is liable
to be set aside.
Learned Attorney General further submits that as per
section 14 of the Sangsad Sachibaloy Act, 1994, the Speaker is
answerable to the National Parliament for all functions and
actions relating to National Parliament Secretariat and any
decision of the National parliament taken in its proceedings
having been immuned from challenge and in such view of the
matter, the impugned order issued pursuant to the said
proceedings cannot be called in question in any court of law.
4
He also submits that the High Court Division failed to
appreciate that the recruitment process was void ab initio
since Parliamentary Committee upon its enquiry found that the
recruitment process of the respondents-writ petitioners was
tainted with serious irregularities, corruption, misuse of
power and violation of the injunction imposed by the then
Ministry of Establishment committed by the then Speaker of 8th
Parliament upon which the Parliament in its proceeding adopted
a decision to cancel the said appointments and in such view of
the matter, the writ petitioners accrued no vested right and
they do not come under the ambit of the Service Rules of
Sangsad Sachibalay, Namely, Sangsad Schibalay Karmokarta-O-
Karmochary Neog Bidhimala, 1994 and Jatio sangsad Sachibalay
Kormokarta-O-Karmochary (Sringkhola-O-Appeal) Bidhimala, 2005
and hence, no show cause notice or departmental proceedings is
required to relieve the writ-petitioners from their service.
Learned Attorney General also submits that the High Court
Division erred in law in failing to appreciate that it is a
settled principle of law that if the appointment is made
without following the rules and procedure, no vested right is
accrued and since the respondents-writ-petitioners got their
respective appointment as a result of irregularities and
corrupt practice, they have not therefore acquired any vested
right in their service on such illegal appointments. Learned
Attorney General having referred to the case of Nuruzzaman
(Md) and others Vs. Bangladesh others 64 DLR (HCD)406, 20 BLC
(AD) 246, Rina Rani Sutradhar and others Vs. Bangladesh 20
BLC (2015) (AD) 246 (para II), Pankaj Gupta Vs. The State of
Jammu and Kahsmir reported in 8 SCC (2004) 353 and the
Secretary, State of Karnataka Vs. Umadevi (2006)4 SCC, 01)
submits that the illegality and irregularity are so intermixed
5
with the whole process of selection that it becomes impossible
to sort-out right from wrong and vice versa, the rules of
natural justice cannot be put in a Straight Jacket [Md. Fazle
Rabbi Mia Vs. Professor Aftab Uddin Ahmed and others, 2 LNJJ
(2013) 46] and as such, the impugned judgment is liable to be
be set aside.
Per contra, Mr. Probir Neogi, learned Senior Advocate and
Mr. Zulhas Uddin Ahmed, learned Advocate appearing on behalf
of the respondents made submissions in support of the impugned
judgement and order of the High Court Division. In addition,
it has been submitted that Article 78 of the Constitution only
protects "proceedings of the parliament" from judicial review.
The impugned orders do not come within the purview of
parliamentary proceedings. It has been further submitted that
the High Court Division categorically found the writ
petitioners had "no hand" in the recruitment process. The
Parliament Secretariat being independent and not being under
any Ministry or Department of any Ministry, the appointments
could not be held to be violative of any prohibitive order of
the Ministry of Establishment and the appointments having been
made in accordance with the provisions of the Bangladesh
Parliament Secretariat Recruitment Rules 1994, the contention
as to the petitioners' appointments being void ab-initio as
propagated by the appellants does not have a sound leg to
stand upon. For the same reason, the decision reported in 2
LNJ (2013) 46 as relied upon by the appellant in reason No. 4
are not at all attracted to the present case and, as such, the
judgment and order passed by the High Court Division does not
call for any interference by this Division.
We have considered the rival submissions of the learned
Advocates for the respective parties, perused the impugned
6
judgment and order of the High Court Division and the
materials as placed before us.
In the instant cases it is undeniable fact that the 9th
Parliament in its 1st session on 19th March, 2009 adopted a
resolution to make inquiry with regard to the illegalities and
irregularities of the appointments, misuse of power,
corruption, wastage of public fund by the then Speaker
Barrister Mohammad Jamiruddin Sirker and the Speaker on that
day on the basis of the decision adopted in the House, formed
a 12 members inquiry committee amongst the Members of
Parliament headed by Mr. Md. Fazle Rabbi Mia, M.P.(Gaibandha-
5). The said parliamentary inquiry committee after holding
inquiry placed its report before the Parliament making some
recommendations. The relevant portion of the recommendations
are as follows:
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30.06.2007 ch©šÍ ewa©Z K‡i miKvix †KvlvMvi †_‡K Zv‡`i †eZb fvZv cÖ`vb K‡i ¸iæZi Avw_©K
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7
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On 13.10.2009 a good number of Members of Parliament
including both ruling party and the oppositions discussed on
the said report. At the time of discussion on the report,
various suggestions and recommendations were given by the
Members of Parliament and ultimately, the report was accepted
by the House.
The relevant proceedings of the Parliament is as follows:
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8
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huviv G cÖ¯Ív‡ei c‡ÿ Av‡Qb, Zuviv Ònu¨vÓ ejyb|
[aŸwb‡fvU MÖn‡Yi ci-]
huviv G cÖ¯Ív‡ei wec‡ÿ Av‡Qb, Zuviv ÒbvÓ ejyb|
[aŸwb‡fvU MÖn‡Yi ci-]
Avgvi g‡b nq, Ònu¨vÓ Rqhy³ n‡q‡Q, Ònu¨vÓ Rqhy³ n‡q‡Q, Ònu¨vÓ Rqhy³ n‡q‡Q|
AZGe, mv‡eK gvbbxq ¯úxKvi e¨vwióvi gyn¤§` RwgiDwÏb miKv‡ii 9g RvZxq msm‡`i
msm` m`m¨ c` LvwiR Kiv msµvšÍ cÖ¯Íve e¨ZxZ Ab¨vb¨ cÖ¯Íve¸‡jv msm‡` me©m¤§wZµ‡g M„nxZ
n‡jv|Ó
It is pertinent to mention here that Mr. Rashed Khan
Manon, M.P. proposed to adopt the following proposal under
rule 292 of the "evsjv‡`k RvZxq msm` Kvh©cÖYvjx-wewa' t
""(K) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi, mv‡eK †WcywU ¯úxKvi Rbve AvLZvi
nvwg` wmwÏKx Ges mv‡eK Pxd ûBc †Lv›`Kvi †`‡jvqvi †nv‡mb Awbqg I `~bx©wZ K‡i †h A_© AvZœmvr Ges AcPq K‡i
miKv‡ii †h Avw_©K ÿwZ K‡i‡Qb Zv AvBbx e¨e¯’v MÖn‡Yi gva¨‡g Zv‡`i wbKU †_‡K Av`vq Kiv nDK:
(L) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi miKvwi wewa weavb Agvb¨ K‡i wbqg ewnf~©Z
cš’vq ‡h mKj Kg©KZv©/Kg©Pvix wb‡qvM w`‡q‡Qb ‡m mKj wb‡qvM evwZj Kiv nDK:''
Pursuant to the said resolution of the parliament, the
Secretariat of Bangladesh Jatio Shangshad cancelled the
appointment of the respective writ petitioners vide its
official letter on 18.02.2010.
9
Learned Attorney General candidly submits that since the
impugned order was issued pursuant to a decision adopted in a
proceeding of the Parliament on the basis of the
recommendation made by the Parliamentary Committee, formed by
the Speaker under Article 76 (2)(c)(d) of the Constitution as
well as under the Rules laid down in Chapter XXIV of the Rules
of Parliament as such the proceedings as well as the decision
taken on the basis of such proceedings is immuned from
judicial review as per provision of Article 78 of the
Constitution.
The Article 78 (1) of the Constitution speaks as follows:
""msm‡`i Kvh©avivi ˆeaZv m¤ú‡K© ‡Kvb Av`vj‡Z cÖkœ DÌvcb Kiv hvB‡e bv|Ó
[The validity of the proceedings in parliament shall not be questioned in any
Court].
Mr. Probir Neogi, Learned Senior Advocate, appearing for
the writ petitioners-respondents submits that in the instant
cases since the service of the writ petitioners-respondents
have been made permanent following the relevant Service Rules,
and since they have been serving for a quite long period, they
cannot be dismissed from the service without following the
relevant Service Rule, i.e. msm` mwPevjq Kg©KZ©v I Kg©Pvix wb‡qvM wewagvjv, 1994 and
the doctrine of parliamentary privilege will not be applicable
in these particular cases.
In view of Article 78(1) of our Constitution the
proceedings in Parliament shall not be questioned in any
Court.
However, a pertinent question is required to be addressed
that in what circumstances and situations Court can exercise
its power under judicial review on a Parliamentary proceeding,
and how far its proceeding is immuned from judicial review.
10
In the case of Raza Ram Paul vs. Honb’le Speaker,
Loksobha [MANU/SC/0241/2007=Supreme Court cases, 2007, Vol.
iii (2007)3 SCC page-184], the Supreme Court of India has
dealt with the issue of parliamentary privilege and having
considered of its earlier various judgments/decisions held
that no power is absolute but subject to checks and balances and judicial review. In
the said case, the Supreme Court of India has formulated the
principles relating to the parameters of judicial review in
relation to the exercise of parliamentary provisions:
“Summary of the principles relating to parameters of
judicial review in relation to exercise of parliamentary
provisions:
431. We may summarise the principles that can be culled
out from the above discussion. They are:
(a) Parliament is a coordinate organ and its views do
deserve deference even while its acts are amenable to judicial
scrutiny;
(b) The constitutional system of government abhors
absolutism and it being the cardinal principle of our Constitution
that no one, howsoever lofty, can claim to be the sole judge of the
power given under the Constitution, mere coordinate
constitutional status, or even the status of an exalted
constitutional functionaries, does not disentitle this Court from
exercising its jurisdiction of judicial review of actions which
partake the character of judicial or quasi-judicial decision;
(c) The expediency and necessity of exercise of power or
privilege by the legislature are for the determination of the
legislative authority and not for determination by the courts;
(d) The judicial review of the manner of exercise of power of
contempt or privilege does not mean the said jurisdiction is being
usurped by the judicature;
(e) Having regard to the importance of the functions
discharged by the legislature under the Constitution and the
majesty and grandeur of its task, there would always be an
initial presumption that the powers, privileges, etc. have been
11
regularly and reasonably exercised, not violating the law or the
constitutional provisions, this presumption being a rebuttable one;
(f) The fact that Parliament is an august body of co-ordinate
constitutional position does not mean that there can be no
judicially manageable standards to review exercise of its power;
(g) While the area of powers, privileges and immunities of
the legislature being exceptional and extraordinary its acts,
particularly relating to exercise thereof, ought not to be tested on
the traditional parameters of judicial review in the same manner
as an ordinary administrative action would be tested, and the
Court would confine itself to the acknowledged parameters of
judicial review and within the judicially discoverable and
manageable standards, there is no foundation to the plea that a
legislative body cannot be attributed jurisdictional error;
(h) The judicature is not prevented from scrutinising the
validity of the action of the legislature trespassing on the
fundamental rights conferred on the citizens;
(i) The broad contention that the exercise of privileges by
legislatures cannot be decided against the touchstone of
fundamental rights or the constitutional provisions is not correct;
(j) If a citizen, whether a non-Member or a Member of the
legislature, complains that his fundamental rights under Article
20 or 21 had been contravened, it is the duty of this Court to
examine the merits of the said contention, especially when the
impugned action entails civil consequences;
(k) There is no basis to the claim of bar of exclusive
cognizance or absolute immunity to the parliamentary
proceedings in Article 105(3) of the Constitution;
(l) The manner of enforcement of privilege by the legislature
can result in judicial scrutiny, though subject to the restrictions
contained in the other constitutional provisions, for example
Article 122 or 212;
(m) Article 122(1) and Article 212(1) displace the broad
doctrine of exclusive cognizance of the legislature in England of
exclusive cognizance of internal proceedings of the House
rendering irrelevant the case-law that emanated from courts in
that jurisdiction; inasmuch as the same has no application to the
system of governance provided by the Constitution of India;
12
(n) Article 122(1) and Article 212(1) prohibit the validity of
any proceedings in legislature from being called in question in a
court merely on the ground of irregularity of procedure;
(o) The truth or correctness of the material will not be
questioned by the court nor will it go into the adequacy of the
material or substitute its opinion for that of the legislature;
(p) Ordinarily, the legislature, as a body, cannot be accused
of having acted for an extraneous purpose or being actuated by
caprice or mala fide intention, and the court will not lightly
presume abuse or misuse, giving allowance for the fact that the
legislature is the best judge of such matters, but if in a given
case, the allegations to such effect are made, the court may
examine the validity of the said contention, the onus on the
person alleging being extremely heavy;
(q) The rules which the legislature has to make for
regulating its procedure and the conduct of its business have to
be subject to the provisions of the Constitution;
(r) Mere availability of the Rules of Procedure and Conduct
of Business, as made by the legislature in exercise of enabling
powers under the Constitution, is never a guarantee that they
have been duly followed;
(s) The proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are not
protected from judicial scrutiny;
(t) Even if some of the material on which the action is taken
is found to be irrelevant, the court would still not interfere so long
as there is some relevant material sustaining the action;
(u) An ouster clause attaching finality to a determination
does ordinarily oust the power of the court to review the decision
but not on grounds of lack of jurisdiction or it being a nullity for
some reason such as gross illegality, irrationality, violation of
constitutional mandate, mala fides, non-compliance with rules of
natural justice and perversity.
432. It can now be examined if the manner of exercise of
the power of expulsion in the cases at hand suffers from any
such illegality or unconstitutionality as to call for interference by
this Court.” (Underlines supplied).
13
In view of the above propositions, Courts power of
judicial review on the proceedings of Parliament is not
absolutely ousted. In certain facts and circumstance, in
particular on the grounds of lack of jurisdiction or it being
a nullity for some reasons such as gross illegality,
irrationality, violation of constitutional mandate, mala
fides, non-compliance with rules of natural justice and
perversity, Court has the jurisdiction to exercise its power
under judicial review.
Let us now consider the submissions of learned Attorney
General in the light of the above principles coupled with the
facts and circumstances of the present case.
From the facts as it reveals in the instant cases that
the Parliament in its sessions adopted a resolution to make
inquiry with regard to the alleged illegal and irregular
appointments made by the then Speaker Mohammad Jamiruddin
Sirker and accordingly, an inquiry committee was formed.
Thereafter, the said inquiry committee after holding an
inquiry placed its report before the Parliament and an open
discussion was held on the said inquiry report by the members
of Parliament and, thereafter, the Speaker put the resolution
proposed by Mr. Rashed Khan Manon, M.P. before the House for
adoption and the House had adopted the said resolution
cancelling all the illegal appointments, and pursuant to the
said resolution, the impugned order has been issued and
communicated by the Parliament Secretariat to the respective
writ petitioners. The learned Advocates for the writ
petitioners-respondents have failed to show us that in taking
such recourse by the Parliament, the Parliament or the Speaker
has violated any rule of Rules of Procedure of Parliament as
well as the Constitution. The House and the inquiry committee
14
discussed various aspects on the issue in question. Since the
Constitution and Rules of Procedure have not been violated in
the proceeding of Parliament, it is our considered view that
there is no scope of judicial review to adjudicate the
propriety of the said proceedings and resolution adopted by
the Parliament and, as such, we have no hesitation to accept
the submission of the learned Attorney General that in these
particular cases the impugned decision and the above
proceedings of the Parliament is immuned to be questioned
before any Court.
The learned Advocates for the writ petitioners-
respondents have tried to convince us that before taking the
impugned action cancelling the appointments of the respective
respondents, they were not given any opportunity of being
heard and thereby principle of natural justice has been
violated, since their service has been confirmed by the
authority as per relevant Service Rules.
It is now well settled that if the appointments have been
made without following the Rules of Procedure, the concerned
employees have not acquired any vested right in the office on
the basis of such irregular and illegal appointment. In the
case of Nuruzzaman Md. and others vs. Bangladesh and others,
reported in 64 DLR (HC) 406 it has been held that:
“Since the appointments have been made without following the rules
and procedures, and in the inquiry report it has been opined that the
petitioners managed to get their appointments by way of irregularities and
corrupt practice, we are of the view that the petitioners have not acquired any
vested right in the office on the basis of their appointments. There is no
illegality and irregularity in the order of cancellation as made by the
respondents”.
The High Court Division in making the above observations
relied on the case of Pankaj Gupta vs. the State of Jammu and
15
Kashmir, reported in 8 SCC (2004)353, wherein it has been held
that:
“No person illegally appointed or appointed without following the
procedure prescribed under the law is entitled to claim that he should be
continue in the service.”
The above judgment of the High Court Division has been
affirmed by this Division in Civil Petition for Leave to
appeal No. 245-152 of 2003, reported in 20 BLC (AD) 246
wherein this Division has held that:
“Considering the report of the inquiry committee, the Government
cancelled the order of appointments and that it could not be said that letter
impugned before the High Court Division was arbitrary. The High Court
Division further found that the appointments had been made without following
the rules and procedures and that in the inquiry report it had been opined that
the petitioners managed to get their appointments by way of irregularities and
corrupt practice. The High Court Division also found that the petitioners had
not acquired any vested right in the office on the basis of their appointments.
Therefore, the High Court Division concluded that there was no illegality or
irregularity in the order of cancellation made by the respondents.
The finding of the High Court Division having been based on proper
appreciation of law and fact do not call for interference.”
In the case of Md. Fazle Rabbi Mia vs. Aftab Uddin Ahmed
and others, reported in 2 LNJ (2013) 46, a Division Bench of
the High Court Division has held that-there is no violation of the rules of
natural justice wherein illegalities, irregularities, arbitrariness and abuse of power in the
process of creating of posts, selection and appointments are so intermixed that it becomes
impossible to sort out the right from wrong and vice versa.
In the Case of Krishan Yadav and Ors. vs. State of
Haryana and Ors.[Manu/SC/0456/1994] the Supreme Court of India
having found that the selection was done without interview,
16
fake and ghost interviews, tempering with the final records,
fabricating documents and forgery has observed as under:
“It is highly regrettable that the holders of public offices both big and
small have forgotten that the offices entrusted to them are sacred trusts. Such
offices are meant for use and not abuse. From a Minister to a menial everyone
has been dishonest to gain undue advantages. The whole examination and the
interview have turned out to be farcical exhibiting base character of those who
have been responsible for this sordid episode. It shocks our conscience to come
across such a systematic fraud. It is somewhat surprising the High Court
should have taken the path of least resistance stating in view of the destruction
of records it was helpless. It should have helped itself. Law is not that
powerless.
In the above circumstances, what are we to do? The only proper
courses open to us is to set aside the entire selection. The plea was made that
innocent candidates should not be penalised for the misdeeds of others. We are
unable to accept this argument. When the entire selection is stinking,
conceived in fraud and delivered in deceit, individual innocence has no place
as “Fraud unravels everything”. To put it in other words, the entire selection
is arbitrary. It is that which is faulted and not the individual candidates.
Accordingly we hereby set aside the selection of Taxation Inspectors.
The effect of setting aside the selection would mean the appointments
held by these 96 candidates (including the respondents) will have no right to
go to the office. Normally speaking, we should require them to disgorge the
benefit of these ill-gotten gains. That means they will have to repay the entire
salary and perks which they have received from the said office. But, here we
show a streak of sympathy. For more than 4 years they were enjoying the
benefit of “office”. The proper lesson would be learnt by them if their
appointments are set aside teaching them that dishonesty could never pay.
All these efforts by us are aimed at cleansing the public administration.
No doubt, it may be stupendous task but we do hope this small step will make
great strides in the days to come. Accordingly, the appeals stand allowed.”
(Underlines supplied).
In the case of Union of India Vs. J.N. Sinha
(MANU/SC/0500/1970) the Supreme Court of India held that rules of
natural justice are not attracted in such a case where the appropriate authority forms the
requisite opinion bona fide and its opinion cannot be challenged before the Courts. In the
17
case of Baikantha Nath Das and others vs. Chief District
Medical Officer, Baripada and others [MANU/SC/0193/1992] it
has been held that as action had been taken on subjective satisfaction of
Government, there is no room for importing facet of natural justice in such a case.
In view of the above propositions, we are unable to accept
the submission of Mr. Neogi that in cancelling the order of
appointments of the writ petitioners, which were the result of
corrupt, illegal and male practice, the principle of natural
justice has been violated.
In the case of Jagit Singh vs. State of Hariyana, reported
in (2006) 11 SCC 1, the Supreme Court of India has held that
the principles of natural justice are not immutable but are flexible; they cannot be cast in a
rigid module and put in a straitjacket and the compliance therewith has to be considered in
the facts and circumstances of each case.
Section 5(1) and section 14 of the RvZxq msm` mwPevjq AvBb, 1994
are as follows:
""msm` mwPevj‡qi KZ„©Z¡- 5| (1) msm` mwPevj‡qi cªkvmwbK `vwqZ¡ ¯úxKv‡ii Dci b¨¯Í _vwK‡e|
and
msm‡`i wbKU ¯úxKv‡ii `vwqZ¡- 14| msm` mwPevj‡qi hveZxq Kg©Kv‡Ûi Rb¨ ¯úxKvi msm‡`i
wbKU `vqx _vwK‡eb| Ó
This Division in the Case of Maves Jasmin and others vs.
Ruhul Amin, reported in 26 BLC (AD)239 has observed that:
“The ordinary rule of construction of a statute must be construed in
accordance with the language used depending upon the context. The Court
should adopt purposive interpretation of the statute to articulate the felt
necessities of the time. Article 79 of the constitution has been provided with the
object that the Secretariat attached to the parliament should have staff, which
should be under the effective control with the head of the parliament. The idea
is to crystallise the position regarding supremacy of the Speaker and to give
18
constitutional authority. The Speaker is the framer, operator and interpreter of
the Rules and consequently he can amend the Rules from time to time following
the related laws.”
If we consider the provisions of sections 5(1) and 14 of
the RvZxq msm` mwPevjq AvBb, 1994 coupled with above proposition of law,
then it would be abundantly clear that the Speaker of the
Parliament has been entrusted with all the administrative
power of the Parliament Secretariat but at the same time he or
she is answerable to the House for his or her conduct and
activities relating to "msm` mwPevj‡qi hveZxq Kg©KvÛ' and, as such, the
House in taking the action on the illegal conduct/activities
of the Ex-Speaker did not violet any Rules of Procedure of the
Parliament or any provision of the Constitution.
Having considered and discussed above, we find merit in
all the appeals. Accordingly, all the appeals are allowed. The
impugned judgment and order passed by the High Court Division
is set aside.
However, there is no order as to costs.
C. J.
J.
J.
B.S./B.R./*Words-5,583*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 518 OF 2017.
(From the judgment and decree dated 18.06.2013 passed by the
High Court Division in First Appeal No.59 of 2010)
Shafika Chowdhury and others :
Appellants.
=Versus=
Badrul Amin @ Manu Sardar and others :
Respondents.
For the Appellant :
Mr.Nozrul Islam Chowdhury,
Senior Advocate, instructed
by Mr. Md. Zahirul Islam,
Advocate-on-Record.
For the Respondent No.1:
Mr. Md. Nurul Amin, Senior
Advocate, instructed by Mr.
M. Soyeb Khan, Advocate-
on-Record.
For the Respondent No.2 :
Mr. Waliul Islam, Advocate-
on-Record.
Respondent No.3 :
Not represented.
Date of hearing : 04.01.2023 & 10.01.2023
Date of judgment : 17.01.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal is
directed against the judgment and decree dated
18.06.2013 passed by the High Court Division in
First Appeal No.59 of 2010 reversing those dated
25.11.2009 passed by the Joint District Judge,
First Court, Dhaka in Title Suit No.187 of 2008. 2
The relevant facts, for the disposal of this
appeal, are that the respondent No.1 filed Title
Suit No.187 of 2008 in the First Court of Joint
District Judge, Dhaka, praying for declaration of
his title in respect of the suit land stating
that one Nurur Rahman Chowdhury took lease of suit
land by lease deed No.1104 dated 08.07.1976 from
the then DIT, at present, RAJUK. He constructed
structure thereon. He sold the suit land to the
plaintiff at a consideration of Tk.3,70,375.00 by
a registered deed dated 18.4.1978. He got sale
permission from the RAJUK on 26.9.1977. The
plaintiff got his name mutated in 2006 and paid
rents and taxes. The defendants claimed that Nurur
Rahman Chowdhury did not sell the suit property.
Accordingly, the plaintiff lodged G.D. No.83 dated
01.11.2007 with Uttara Police Station. The
plaintiff came to know from the RAJUK that the
defendants applied for mutation of their names
though their predecessor Nurur Rahman Chowdhury
had sold the suit land to the plaintiff. Hence,
the plaintiff has filed this suit.
The defendant appellants contested the suit
contending that Nurur Rahman Chowdhury got lease 3
of the suit land from D.I.T (now RAJUK). He died
on 20.05.1986 leaving behind wife, three sons and
two daughters, who, on 11.06.2006, applied to the
RAJUK for mutation of their names and, accordingly
mutation was made in their names. One Abu Sayeed
Bepari made an attempt to grab the property by
force. The matter was referred to the law
enforcing authority and Abu Sayeed Bepari, on
26.9.2005, executed a “nadabipatra” in favour of
the defendants admitting the title of the
defendants in the suit land. One Hosne Ara Daud,
on 17.01.1993, instituted a suit for specific
performance of contract stating that Nurur Rahman
Chowdhury came to an agreement for sale of the
suit land with her which was dismissed. The
defendants came to know that, on 26.06.2003, one
Sardar Abdur Rahman filed Title Suit No.65 of 2005
for declaration of his title in the suit land. The
said suit was dismissed on 26.06.2007. The instant
suit has been filed by forging sale permission
from the RAJUK. The defendants made boundary wall 4
and constructed tin-shed in the suit land. The
suit should be dismissed.
The trial Court dismissed the suit. The
plaintiff preferred First Appeal No.59 of 2010 in
the High Court Division. The High Court Division,
upon ex-parte hearing of the plaintiff, by its
judgment and decree dated 18.06.2013 allowed the
appeal upon setting aside the judgment and decree
of the trial Court.
Against the judgment and decree passed by the
High Court Division the defendants have preferred
this appeal upon getting leave.
Mr. Nozrul Islam Chowdhury, learned Senior
Counsel appearing for the appellants, submits that
the respondent has obtained an ex parte decree in
appeal by practising fraud upon the Court
suppressing the notices upon the present defendant
appellants, so the judgment and decree of the
appellate Court is liable to be set aside. He
further submits that the positive finding arrived
at by the trial Court, upon consideration of the
evidence and materials, was, inter alia, that;‘‘D³
gvgjvi avivevwnKZvq KzPµxgn‡ji cÖ‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU 5
Rvj `wjj m„Rb Kwiqv Av`vj‡Zi mvg‡b bvwjwk m¤úwËi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡Qb|ÕÕ
which has not been reversed by the Appellate
Court. He submits that the impugned judgment and
decree passed ex parte by the High Court Division
is violative of the provisions of Order XLI Rule
31 of the Code of Civil Procedure and as such, the
same is liable to be set aside. He, lastly,
submits that the plaintiff being out of possession
of the suit land, suit for mere declaration was
not maintainable.
Mr. Md. Nurul Amin, learned Senior Counsel
appearing for the respondents, submits that
original lessee Nurur Rahman Chowdhury, at first,
executed a bainanama in favour of the plaintiff on
20.01.1978 and, thereafter, executed and
registered a sale deed dated 18.04.1978 in his
favour, thereby, his right, title, interest and
possession in the land, in question, has been
divested to the plaintiff, the High Court Division
upon proper appreciation of the evidence on
record, decreed the suit.
It appears that the plaintiff Badrul Amin @
Manu Sardar, represented by his power of Attorney
Md. Helal Uddin, filed instant Title Suit No.187
of 2008 on 09.01.2008 stating that Nurur Rahman
Chowdhury got the suit land from DIT, at present 6
RAJUK. The plaintiff purchased the same from him
by registered sale deed dated 18.04.1978 upon
payment of consideration of a sum of taka
3,70,375/-. Before sale, Nurur Rahman Chowdhury
took permission from the then DIT by letter
communicated under Memo No.DIT.Estate/3169 dated
26.09.1977. Thereafter, the plaintiff purchaser
mutated his name in the khatian as well as in the
office of the RAJUK. It is the case of the
contesting defendant-appellants that the aforesaid
kabla deed of the plaintiff is forged one and
their predecessor Nurur Rahman did not execute and
register any such sale deed in favour of the
plaintiff. The trial Court, upon consideration of
the evidence on record, held that,Ò ‡mB K_v weev`x c‡¶i
bvwjkx m¤úwË AvZ¥mvr Kivi KzgZj‡e ev`x B‡Zvc~‡e© Ab¨ †jvK w`qv gvgjv `v‡qi Kiv
nBqvwQj Ges D³ gvgjvq civwRZ nBqvwQj| D³ gv gjvi avivevwnKZvq KzPµxgn‡ji
cª‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU R¦ vj `wjj m„Rb Kwiqv Av`vj‡Zi
mvg‡b bvwjkx wb¯úwIi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡QbÓ . Thereafter, the
trial Court observed that, ÒmyZivs R¦ vj `wjj Gi gva¨‡g ev`x
Av`vj‡Z gvgjv Kwiqv R¡vj `wjj e‡j bvwjkx m¤úwˇZ gvwjKvbv cªwZôv Kivi cªkœB Av‡m
bv|Ó The High Court Division, while reversing the
finding as to the creation of the title deed of
the plaintiff by way of forgery, has stated, “I t
is true that seal in sale deed appeared with
spelling as ‘Sadar Sub-Register’ but signature of 7
the Sub-Register was with each of the seal of the
deed”.
The trial Court observed that it is
difficult to accept that a responsible office of
Sub-Registrar shall prepare and use its seal as
“Office of the Sub- Register”. The word “ Sub -
Register” in the official seal of Sub -Registrar
created a doubt about the genuineness of the deed
itself. Since it is the case of the defendants
that the said deed is forged one it was the duty
of the plaintiff to prove his deed upon calling
the volume book from the concerned Sub-
Registrar’s office but he did not take any such
step.
It further appears from the materials on
record that the plaintiff Badrul Amin earlier came
to an agreement with admitted owner Nurur Rahman
Chowdhury on 20.01.1978. In his examination- in-
chief P.W.1 Md. Badrul Amin @ Manu Sardar has
said, Òbyi“i ingvb †PŠayixi mwnZ evqbv 20/1/78 Bs Zvwi‡L nq Dnvi Kwc Av`vj‡Z
`vwLj Kwijvg| (cª`t 8) Ó that is, it is definite claim of
the plaintiff (P.W.1) that he came to an agreement
on 20.01.1978 with Nurur Rahman Chowdhury. In his
pleading, the plaintiff has said Nurur Rahman
Chowdhury filed an application for getting
permission for sale of the suit land to the
plaintiff and, accordingly, he got permission for 8
sale from the then DIT vide Memo
No.DIT/Estate/3169 dated 26.09.1977. That is,
according to pleading and evidence of the
plaintiff Nurur Rahman Chowdhury got permission
from the then DIT on 26.09.1977 and executed
“bainanama” with the plaintiff on 20.01.1978.
According to the plaint case, Nurur Rahman
Chowdhury took permission from RAJUK to transfer
the suit land on 26.09.1977 but the Exhibit-8, the
alleged “bainanama” dated 20.01.1978, shows that
it was recited, inter alia, ÒB¤úªyf‡g›U óªvó wWAvBwU feb nB‡Z
AbygwZ cvIqvi ci evqbvbvgv `wjj MªwnZv‡K wjwLZfv‡e Zvnv Rvbv‡bv nB‡e| Z‡e B¤úª yf‡g›U
óªv‡ói AbygwZ wb‡Z hw` †Kvb µ‡g †`wi nq Zvnv nB‡j 90 w`‡bi ¯n‡j Avjv c-Av‡jvPbvi
wfwˇZ mgq e„w× Kiv hvB‡e|Ó If story of getting permission to
transfer the suit land on 26.09.1977 was true
then, at the time of execution of alleged
“bainanama” dated 20.01.1978 the above quoted
statement in the “bainanama” would not be
mentioned. It further appears from the Exhibit-8
that price of the property, in question, was
settled at tk.3,70,375/ and Nurur Rahman,
receiving tk. 1,00,000/-, executed the same and
there was a stipulation that the plaintiff should
pay the rest amount of taka 2,70,375/- within 90
days but the plaintiff in his evidence did not say
so. 9
It further appears from the Exhibit-6 to 6(Ka)
Nurur Rahman Chowdhury had allegedly filed
application for getting permission on 26.09.1977,
the contents of the said application for
permission run as follows:
Òcª`k©bx bs-6-6(K)t 26/09/1977 Zvs Gi Av‡e`b I
8/1/78Bs Zvs Gi Aby‡gv`b cÎ|
eivei,
Dc-cwiPvjK (G‡óU)
wW,KAvB,wU, feb, XvKv-2|
welqt DËiv g‡Wj UvD‡bi 13bs †m±‡ii 4bs †iv‡Wi Aew¯nZ 9bs c ‡Ui BgviZ mn
n¯—vš—i cªms‡M|
g‡nv`q,
mwebq wb‡e`b GB †h, Avwg DËiv g‡Wj UvD‡bi 13 bs †m±‡ii 4bs †iv‡W Aew¯nZ
9bs c ‡Ui eivÏ MªwnZv Ges weMZ 30/10/69 Bs ZvwiL †iwRwóªK…Z -11004 jxR `wjj g~‡j
D³ c ‡Ui gvwjK| wW,AvB,wU KZ…©K Aby‡gvw`Z bKmv Abyhvqx D³ c ‡U GKLvbv GKZjv
BgviZ wbg©vb Kiv nBqv‡Q| eZ©gv‡b Avgvi Avw_©K cª‡qvR‡b BgviZ mn D³ c U Lvbv †gvU
UvKv 3,70,375/- (wZb j¶ mËi nvRvi wZbkZ cuPvËi UvKv ) gy‡j¨ Rbve †gvt e`i“j
Avwgb Ii‡d gby mi`vi , wcZv Ave `yj nvw` Gg,Gg 33 †K we †Nvl óªxU , _vbv - †KvZqvjx,
†Rjv- XvKv Gi wbKU n¯—vš—i Kwi‡Z gb¯— KwiqvwQ| D‡j wLZ Ae¯nvi cwi‡cªw¶‡Z cªv_©bv
GB †h, BgviZ mn Dc‡ivwj wLZ c U Lvbv Rbve e`i“j Avwgb Ii‡d gby mi`vi, wcZv
Ave`yj nvw`, Gg,G, 33 bs †K,we, óªxU †Nvl, _vbv - †KvZqvjx, †Rjv- XvKv Gi wbKU n¯—vš—i
Kivi Rb¨ AbygwZ cª`vb Kwi‡Z AvÁv nq|
ZvwiLt 26/09/1977Bs
Avcbvi wek¡¯—
¯^vt A¯có
26/9/77
(byi“b ingvb †PŠayix) 10
wcZv nvRx †gvZvnvi Avjx
†PŠayix
mvs-Mvbcvov, _vbv- RvwKMÄ,
‡Rjv-wm‡jU| Ó
Exhibit-6(Ka) shows that a letter was issued
from the Deputy Director , Estate to Nurur Rahman
Chowdhury, the contents of the said letter run as
follows:
Òcª`k©bx bs-6(K)t
¯^viK bs- wW, AvB,wU/G‡óU/3169/26/9/77B , ZvwiLt 08/01/78Bs
‡cªiKt Dc-cwiPvjK (G‡óU)
wW,AvB,wU feb
XvKv-2|
cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv),
wcZv- nvRx †gvZvnvi Avjx †PŠayix
mvs-Mvbvcvo, _vbv-RvwKMÄ,
‡Rjv- wm‡jU|
welqt DËiv AvevwmK GjvKvq 13bs †m±‡ii 4bs iv¯—vi BgviZ mn 9bs c ‡Ui
n¯—vš—i cªms‡M|
Avcbvi weMZ 26/9/77 Bs Zvwi‡Li Av‡e`b cÎ AÎ Awd‡mi ¯^ viK bs-
3161 ¯’vt ZvwiL 26/9/77 Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó nBqv RvbvB‡ZwQ †h,
Dc‡ivwj wLZ BgviZ mn c U wU Rbve †gvt e`i“j Avwgb Ii‡d gby mi`vi, wcZv
†gvt Ave`yj nv`x Gg,G, 33, †Kwe †Nvl wóªU, †cvt evey evRvi, _vbv -†KvZqvjx, †Rjv-
XvKv Gi wbKU n¯ —vš—i we‡ePbv mv‡c‡¶ n¯— vš—i wd eve` 30,8,548/- (wÎk j¶
AvU nvRvi cvuPkZ AvUPwj k) UvKv gvÎ Ges 18/11/68 Bs nB‡Z 18/01/78 Bs
ch©š— mvwf©m PvR© eve` 2,489/- (`yB nvRvi PvikZ DbbeŸB) UvKv †mvbvjx e¨vsK ,
wW,AvB,wU feb, kvLvq AvMvgx 8/2/78 Bs Zvwi‡Li g‡a¨ Rgv w`qv RgvK…Z UvKvq
e¨vsK iwk` cª‡qvRbxq Kvh©Kix e¨e¯nv Mªn‡bi Rb¨ wbg¥ ¯^v¶iKvixi wbKU `vwLj
Kwi‡Z nB‡e| D‡j wLZ Zvwi‡Li g‡a¨ UvKv Rgv w`‡Z e¨_© nB‡j †Kvb cªKvi †bvwUk
e¨wZ‡i‡KB D³ evwZj ewjqv MY¨ nB‡e| 11
¯^vt A¯có
(Dc-cwiPvjK G‡óU)
wW,AvB,wU feb, XvKv| Ó
The RAJUK allegedly gave permission with
certain terms and conditions which run as follows:
Òcª`k©bx bs- 7t- 15/1/78 Zvs wd Rgvi Kwc|
Zvs-15/01/78
XvKv B¤úªf‡g›U U«vó
wW, AvB, wU feb, XvKv-2|
¯^viK bs- wW, AvB,wU/G‡óU/3169/26/77B , ZvwiLt 15/01/78Bs
‡cªiKt Dc-cwiPvjK (G‡óU)
wW,AvB,wU feb
XvKv-2|
cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv),
wcZv- nvRx †gvZvnvi Avjx
mvs-Mvbvcvo, _vbv-RvwKMÄ,
‡Rjv- wm‡jU|
welqt DËiv AvevwmK GjvKvq c U bs 9, †m±i bs -13, †ivW bs -4, BgviZ mn
c UwU
n¯—vš—i cªms‡M|
Rbve,
Avcbvi 26/9/77 Bs Zvwi‡Li Av‡e`‡bi cwi‡cªw¶‡Z I AÎ Awd‡mi m¥viK
bs-wW,AvB,wU/G‡÷U/3169 ZvwiL 26/9/1977Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó
nBqv RvbvB‡ZwQ †h, Dc‡ivwj wLZ c U wU Rbve †gvt e`i“j Avwgb Ii‡d gby
mi`vi, wcZv - g„Z †gvt Ave`yj nv`x Gg,G, 33 †K,we, †Nvl wó«U, †cvt evey evRvi,
_vbv- †KvZqvjx, †Rjv- XvKv....... Gi eive‡i wbg¥ wjwLZ kZ© I wbqgvejx m¤ú~Y©i“‡c
KviY ¯^v‡c‡¶ wbg¥i“‡c Aby‡gv`b Kiv nBj| 12
cª¯—vweZ n¯ —vš—i MªwnZv KZ…©K mshy³ Pzw³ bvgv I AsMxKvi bvgvi bgybv
†gvZv‡eK 1.50 (GK UvK v cÂvk) UvKv bb R ywWwkqvj óv‡¤úi Dci wjwLZ mwnZ
KiZt Rgv Kwi‡Z nB‡e|
Avcbvi 26/9/77Bs Zvwi‡Li Av‡e`‡bi D‡j wLZ n¯—vš—i g~j¨ 3,70,375/-
(wZb j¶ mËi nvRvi wZbkZ cuPvËi) UvKv Gi Dci n¯ —vš—i MªwnZv/MªwnÎxi mwnZ
n¯—vš—i `wjj m¤úv`b I †iwRwóª Kwi‡Z nB‡e|
wW AvB wU I g~j eivÏ MªwnZvi/ MªwnÎx g‡a¨ mswk ó c ‡Ui m¤úvw`Z jxR
`wjj G D‡j wLZ kZ© I wbqgvejx cª¯ —vweZ n¯—vš—i MªwnZv/ MªwnÎx gvwbqv Pwj‡Z
eva¨ _vwK‡eb| GB g‡g© n¯— vš—i kZ© Av‡ivc Kwi‡Z nB‡e Ges D³ n¯— vš—i
`wj‡ji mwn †gvni bK‡ji g~j Kwc cª¯— vweZ MªwnZv/MªwnÎxi bvg Rvixi Rb¨ AÎ `߇i
`vwLj Kwiw‡Z nB‡e|
GB wPwV Bmy¨i ZvwiL nB‡Z 4(Pvi) gv‡mi g‡a¨ Dc‡i D‡j wLZ kZ© I
wbqgvejx m¤ú~Y© Kwi‡Z e¨_© nB‡j n¯—vš—i Av‡`k evwZj ewjqv we‡ewPZ nB‡e|
¯^vt A¯có
15/1/78
(mnKvix cwiPvjK G‡óU)
wW,AvB,wU feb, XvKv-2| Ó
From those documents of the plaintiff it is
clearly proved that those documents are created
for the purpose of instant suit since those had no
consistency with the plaint case.
Plaintiff Badrul Amin in his cross examination
has said, Òbyi“i ingv‡bi evox wm‡j‡U †Rjv i RvwKM‡Ä Z‡e Zvnvi Mªv‡gi bvg
Avgvi g‡b bvB| by‡ii ingv‡bi Avmj Mªv‡gi bvg Avwg Rvwb bv|Ó Thereafter, he
said, ÒAvwg by‡ii ingv‡bi evox‡Z hvB bvB| Avwg wm‡j‡U by‡ii ingv‡bi mwnZ †÷k‡b
†`Lv Kwiqv wQjvg|Ó He further admitted that, ÒAvgvi `vwLj `wj‡j
mve †iwRó«v‡ii bv‡gi evbvbwU fzj fv‡e †jLv Av‡Q| Ó
P.W.1, has failed to 13
say the year of the execution and registration of
the sale deed. Aforesaid evidence clearly
indicates that there was no previous acquaintance
of the plaintiff with Nurer Rahman, admitted owner
of the suit land. Which also made the execution of
the alleged “bainanama” and sale deed and payment
of consideration doubtful
.
It further appears that in examination-in-
chief the plaintiff claimed that there are three
tin-shed in the suit land. But in his cross-
examination he has said ÒAÎ gvgjvi AviRxi Zcwm‡j m¤úwËi weeiY
nBj bvwjkx m¤úwË eZ©gv‡b Lvwj Av‡Q|Ó P.W.2 in his evidence has
said, Òbvwjkx m¤úwË Lvwj RvqMvq|Ó
The plaintiff did not
examine any other witness to prove his possession.
That is, the plaintiff has failed to prove his
possession in the suit land. In such view of the
matter, the instant suit, without the prayer for
recovery possession, was not maintainable.
In view of the nature of the evidence as
adduced by the plaintiff, it appears that the
conclusion arrived at by the trial Court is more
acceptable. While reversing the finding of the
trial Court, the High Court Division ignored those
evidence, thereby, erroneously set aside the well
reasoned judgment of the trial Court. 14
The High Court Division committed an error
while deciding the first appeal in a cursory
manner without meeting the requirements of Order
XLI Rule 31 of the Code of Civil Procedure. The
appeal has been decided without following the
procedure prescribed for deciding the first
appeal, thus, the impugned judgment is liable to
be set aside.
Considering the aforesaid facts and
circumstances, we find substance in the appeal
Thus, the appeal is allowed. The Judgment and
decree of the High Court Division in First Appeal
No.59 of 2010 is, hereby, set aside.
C.J.
J.
J.
The 17th March, 2023.
/words- 2674/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 472 OF 2016.
(From the judgment and decree dated 06.06.2010 passed by the
High Court Division in First Appeal No.283 of 1993)
Government of Bangladesh, represented
by the Deputy Commissioner, Satkhira
& others :
Appellants.
=Versus=
Debisahor Agriculture and Fish
Firming Co-operative Society
Limited & others :
Respondents.
For the Appellants :
Mr. Sheikh Mohammad Morshed,
Additional Attorney General
(with Mr. Mohammad Saiful
Alam, Assistant Attorney
General & Sayem Mohammad
Morshed, Assistant Attorney
General), instructed by Mr.
Haridas Paul,, Advocate-on-
Record.
For the Respondent No.1 :
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Bivash Chandra Biswas,
Advocate-on-Record.
Respondent No.2-98:
Not represented.
Date of hearing : 31.01.2023 & 07.02.2023.
Date of judgment : 07.02.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal
is directed against the judgment and decree
dated 06.06.2010 passed by the High Court
Division in First Appeal No.283 of 1993 2
reversing those dated 27.10.1993 passed by the
then Subordinate Judge, Satkhira in Title Suit
No.52 of 1985.
The relevant facts, for disposal of the
appeal, in short, are that the respondent No.1
instituted the aforesaid suit for declaration of
its title stating that the suit land along with
other lands covering an area of 111.39 acres
appertaining to S.A. khatian No.169 originally
belonged to Hazari Lal Sarnaker and others.
Hazari Lal Sarnaker submitted his statement as
per provision of President Order No.98 of 1972
expressing his desire to keep 33.24 acres of
land of plot No.290. Said Hazari Lal Sarnaker
transferred the suit land to the plaintiff by
several kabala deeds and delivered possession.
The plaintiff came to know that the defendant
No.3 has passed an order making the said land
khas. Hence, was the suit.
The defendant – appellant contested the suit
contending, inter alia, that the suit was not
maintainable and same was barred by limitation.
Their specific case, in short, was that the suit
land originally belonged to Hazari Lal Sarnaker
who surrendered the said land along with other
lands as per provision of P.O.98 of 1972 as 3
excess land. Making said land khas, the
Government leased out the same to landless
people who have been possessing the same. The
suit should be dismissed.
The trial Court, on consideration of the
evidence on record, dismissed the suit. The
plaintiff preferred First Appeal. The High Court
Division, by the impugned judgment and decree,
allowed the appeal, thereby, decreed the suit
upon setting aside the judgment and decree of
the trial Court. Against the judgment and decree
of the High Court Division, the Government
preferred this appeal upon getting leave.
Mr. Sheikh Mohammad Morhsed, learned
Additional Attorney General, appearing for the
appellant, submits that the as per provisions of
P.O. No.98 1972, the right, title and interest
of the property in question have been vested in
the Government free from all encumbrances the
High Court Division erred in law in setting
aside the judgment and decree of the trial
Court.
Mr. Probir Neogi, learned Senior Counsel
appearing for respondent No.1 in his submissions
supported the judgment and decree of the High
Court Division. He submits that the land in 4
question had been transferred by the admitted
original owner in favour of the respondent
Debisahor Agriculture and Fish Farming Co-
operative Society Limited. Accordingly, after
purchased, the respondent has been possessing
the suit land, the High Court Division upon
proper appreciation of the evidence and law
connected thereto has decreed the suit rightly,
there is no error in the judgment and decree of
the High Court Division.
The respondent, Debisahor Agricultaure and
Fish Farming Co-operative Society Limited has
instituted the instant suit for simple
declaration of its title in respect of the land
measuring an area of 33.24 acres out of 37.15
acres of land of plot No.240 and S.A. khatian
No.169. The suit land and the other lands
measuring an area of 111.09 acres of S.A.
khatian No.169 originally belonged to Hazari Lal
Sarnaker who transferred the suit land to the
respondent No.1 by several kabla deeds alleged
to have been executed and registered in favour
of the respondent No.1.
It is the case of the Government that Hazari
Lal Sarnaker surrendered the suit land as per
provisions of Presidential Order No.98 of 1972. 5
It appears from the statements submitted by
Hazari Lal Sarnaker of as per provisions under
Article 7 read with Article 12 of the Bangladesh
Land Holding (Limitation) Order, 1972
(Presidential Order No.98 of 1972) that he
surrendered the suit land along with other lands
the Government. Since the suit land was
surrendered by its owner as excess lands to the
Government under Presidential Order No.98 of
1972, we are of view that the right, title and
interest and possession of the same has been
vested in the Government free from all
encumbrance.
In view of the above provisions of law the
Government became the absolute owner of the
same. Thus, the subsequent transfer by the
Hazari Lal Sarnaker in favour of the plaintiff
in 1977 did not confer any title to it.
Upon consideration of the aforesaid facts
and circumstances, we are of the view that the
High Court Division has committed error of law
in allowing the appeal upon setting aside the
judgment and decree of the trial Court which has
caused a total failure of justice. Accordingly,
we find substance in this appeal. 6
Thus, the appeal is allowed. Judgment and
decree passed in First Appeal No.283 of 1993 is
hereby set aside.
C.J.
J.
J.
The 7th February, 2023.
/words-943 /
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.301 OF 2019.
(From the judgment and decree dated 02.02.2017 passed by the
High Court Division in Civil Revision No.946 of 2000)
Md. Isaq Biswas and others :
Appellants.
=Versus=
Abdus Samad Sheikh alias Abdul
Hossain being dead his heirs:
1(a)Rashida Begum and others.
Respondents.
For the Appellants :
Mr.Md. Nurul Amin, Senior
Advocate, instructed by Mr.
Zainul Abedin, Advocate-on-
Record.
For the respondents: Mr. Garib Newaz,
Advocate, instructed by
Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
Date of hearing & judgment : 07.06.2023
J U D G M E N T
Hasan Foez Siddique, C.J: This appeal is
directed against the judgment and order dated
02.02.2017 passed by the High Court Division in
Civil Revision No.946 of 2000 reversing the
judgment and decree dated 02.02.1999 passed by
the learned Joint District Judge Artha Rin
Adalat, Faridpur in Title Appeal No.243 of 1992
reversing those dated 07.09.1992 passed by the 2
learned Assistant Judge, Alfadanga, Faridpur in
Title Suit No.62 of 1985.
The relevant facts, for the disposal of this
appeal, are that Shafiuddin and another
instituted aforesaid suit for declaration of
their title and recovery of khas possession
stating that the land as described in the
schedule to the plaint belonged to Maizuddin who
died leaving behind one son, Plaintiff No.1 and
widow the plaintiff No.2 as his heirs. The
plaintiffs, constructing dwelling homestead in
.17 acre of land of plot No.187, had been
residing therein. The defendants forcibly
dispossessed the plaintiffs on 25.10.1985. The
plaintiffs came to know that S.A. record of
right in respect of the suit land was wrongly
prepared in the names of the defendants. Hence,
was the suit.
The defendant No.1 contested the suit
contending that the landlords of the disputed
joma were Nagendra Roy Mukhopadhya and others
and tenant was Maizuddin. Maizuddin defaulted to
pay the rent. Thus, the landlords, instituting a
Rent Suit, got decree and took over the said
property in his possession executing the said
decree. Thereafter, Baser Mollah, predecessor- 3
in-interest of the defendant, took settlement of
the said land from the landlords and took over
possession of the same. S.A. record was prepared
in the name of the plaintiff No.1. Accordingly,
the defendant filed objection case which was
allowed. This defendant has been possessing the
suit land for more than 12 years. The suit
should be dismissed.
The trial Court, on consideration of the
evidence on record, dismissed the suit. The
plaintiffs preferred appeal, which was allowed
by the appellate Court.
Then the defendant filed civil revisional
application in the High Court Division and
obtained Rule. The High Court Division by the
impugned judgment and order made the said Rule
absolute. Against the aforesaid judgment and
order of the High Court division, appellants
have preferred this appeal upon getting leave.
Mr. Md. Nurul Amin, learned Senior Counsel
appearing for the appellants, submits that the
plaintiffs are the successive heirs of C.S.
recorded tenants and they were in possession of
the suit land till the date of dispossession on
25.10.1985 and the plaintiffs, by adducing
sufficient evidences, proved their title and 4
possession and, thereafter, date of
dispossession. He submits that the last Court
of facts upon proper appreciation of the
evidence on record, found plaintiffs’ title,
possession and their dispossession in the suit
land, the High court Division erred in law in
setting aside the well reasoned judgment of the
appellate Court. He further submits that the
defendants claimed that the suit land was sold
in auction and the landlords auction purchased
the same and took over the possession of the
same, thereafter settled the suit land to the
predecessor-in-interest of the contesting
defendants but they hopelessly failed to prove
the story of alleged auction and their
allegedly settlement, the High Court Division
upon improper consideration of the evidence
adduced by the parties erroneously dismissed the
suit.
Mr. Garib Newaz, learned Advocate appearing
for the respondents, submits that it is the duty
of the plaintiffs to prove their own case to get
the decree and their possession in the suit land
till the date of dispossession, the High Court
Division upon proper appreciation of the
materials on record, rightly reversed the 5
judgment and decree of the appellate Court. He
further submits since the plaintiffs failed to
prove their possession till the date of their
dispossession, the trial Court as well as the
revisional Court upon proper appreciation of the
evidence on record, came to the conclusion that
the plaintiffs suit was barred by limitation.
Admittedly, Moizuddin was C.S. recorded
tenant. The plaintiffs’ case is that they are
the successive heirs of the said Moizuddin and
had been possessing the suit land till the date
of their dispossession dated 25.10.1985. At the
initial stage, S.A. record-of-rights was
prepared in their names but finally it was
published in the name of contesting defendants.
It was their case that the plaintiff No.1 who is
P.W.1 was minor at the time of preparation of
record-of-rights and the contesting defendant
was his close relative and after the death of
his father, they started to live in the house
of the defendants. Taking opportunity of his
minority , the defendant forcedly dispossessed
the plaintiff from the suit land .
It appears from the materials on record that
earlier before the publication of S.A.
operation, a Miscellaneous Case for correction 6
of record-of-rights was filed which was disposed
of on contest. Finally S.A. record-of-rights was
prepared and published in the name of defendant
No.1. On perusal of the judgment of the trial
Court it appears that the Trial Court considered
the oral and documentary evidence adduced by the
parties and came to the conclusion that the
plaintiffs have failed to prove their possession
till their alleged date of dispossession from
the suit land. It further held that the suit was
barred by limitation. While drawing conclusion
as to the possession of the plaintiffs till
their dispossession, the first Court of fact
considered the evidence adduced by the parties
vividly but from the judgment and decree of the
appellate Court it appears that the appellate
Court, without taking into consideration of the
evidence as quoted by the trial Court, abruptly
reversed the finding as to the possession of the
plaintiffs till their dispossession from the
suit land. The revisional Court reversed the
finding as to the possession and dispossession
arrived at the appellate Court holding that the
conclusion arrived at by the last Court of fact
is not based on evidence. In the plaint, the
plaintiffs stated that they were dispossessed by 7
the defendant on 25.10.1985 from the suit land,
plaintiff No.1 was examined as P.W.1 who in his
evidence did not utter a word about the alleged
date of dispossession. Similarly their another
witness P.W.2 has also said nothing about the
date of dispossession of the plaintiffs from the
same. We have also gone through the judgment of
the Courts below it appears to us that the
conclusion arrived at by the High Court Division
is correct.
The appellate Court mainly relied upon the
weakness of the case of the defendants that they
have failed to prove of the story auction sale
and their alleged settlement but in order to get
a decree for recovery of possession along with
prayer for declaration of title the weakness of
the defendants case cannot be a ground for
getting decree the plaintiffs, particularly,
when the plaintiffs failed to prove their
possession in the suit land till their
dispossession.
In such view of the matter, we do not find
any substance in the instant appeal.
Thus, the appeal is dismissed.
C.J.
J.
The 7th June, 2023.
/words-1283/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice Obaidul Hassan
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.289 OF 2015.
(From the judgment and order dated 17.08.2011 passed
by the High Court Division in Writ Petition No.6643
of 2006.)
Abdul Halim Gaznabi and
others.
Appellants.
=Versus=
M.M. Badsha Shirazi and
others.
Respondents.
For the Appellants :
Mr. Qumrul Haque Siddique,
Advocate, instructed by Ms.
Madhumaloti Chowdhury Barua,
Advocate-on-Record.
For the Respondent :
Nos.1.
For the Respondent :
No.6
Respondent : Nos.2-
5, 7-17.
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Syed Mahbubar Rahman,
Advocate-on-Record.
Ms. Nahid Sultana,
Advocate-on-Record.
Not represented
Date of hearing : 22.06.2022 & 27.07.2022.
Date of judgment : 03.08.2022
JUDGMENT
Hasan Foez Siddique, C.J: This Civil Appeal is directed against the judgment and order
dated 17.08.2011 passed by the High Court
Division in Writ Petition No. 6643 of 2006
making the Rule absolute. 2
The respondent No.1 herein, Superintendent
of Hossaini Dalan Waqf Estate, Dhaka filed the
above mentioned writ petition challenging the
order No.150 dated 05.02.2006 passed by the
Artha Rin Adalat No.3, Dhaka in Miscellaneous
Case No.7 of 1996 arising out of Title
Execution Case No.151 of 1991 rejecting the
application under order 21 rule 58 of the Code
of Civil Procedure.
The facts necessary for disposal of this
appeal, in short, are that the present
appellants took loan from the respondent No.3
bank by mortgaging the property, in question.
The borrowers defaulted in repayment of the
said loan, consequently, the bank instituted
Title Suit No.244 of 1979 against the borrowers
for recovery of outstanding loan and the said
suit was decreed on compromise on 23.09.1984.
Since the defendant-judgment debtors could not
pay the decreetal amount, the decree-holder
bank put the decree in execution by filing the
Title Execution Case No.151 of 1991. In that
title execution case a tender notice was
published in a daily newspaper for holding
auction of the mortgaged property of the
judgment-debtors. The present respondent, 3
Superintendent of Hossaini Dalan Waqf Estate
then filed an application under Order XXI Rule
58 of the Code of Civil Procedure in that
execution case stating, inter alia, that the
property in question was waqf property which
was leased out to one Pearoo Miah Sarder by a
registered lease deed dated 21.12.1956 for 50
years at a yearly rental of tk.250/. It was
stipulated in the said lease deed that the
lessee would surrender possession of that
property to the lessor on expiry of the lease
period. The bank filed the mortgage suit
without impleading the Administrator of Waqf or
the respondent No.1 as a defendant in that
suit. The defendant- judgment debtors had no
authority to mortgage the property, in
question to the plaintiff bank to secure the
loan availed by them. The disputed property was
liable to be excluded from the execution
proceeding.
The said application under order 21 Rule 58
of the Code of Civil Procedure filed by the
respondent No.1 was registered as Miscellaneous
Case No.7 of 1996.
The decree-holder bank and the judgment-
debtors proforma opposite party Nos.3 to 8 4
contested the said miscellaneous case by filing
two separate written objections. Their case, in
short, was that the mortgagors became owners of
the property in question under the Government
after wholesale acquisition of rent receiving
interest, the respondent No.1 had no right,
title and interest in that land and as such the
miscellaneous case was liable to be rejected.
The Artha Rin Adalat, on consideration of
the evidence adduced by both the parties and
the facts and circumstances, dismissed the said
miscellaneous case by the order No.150 dated
05.02.2006.
Being aggrieved by this order dated
05.02.2006, the Superintendent of Hossaini
Dalan Waqf Estate filed Writ Petition No.6643
of 2006 in the High Court Division and obtained
rule. The present appellants contested the rule
by filing affidavit-in-opposition.
A Division Bench of the High Court Division,
after hearing both the sides, made that rule
absolute observing that on the expiry of the
lease tenure in the year of 2007, the property,
in question, would be returned to the lessor as
per terms and conditions embodied in the lease
deed. The High Court Division set aside the 5
order dated 05.02.2006 passed by the Artha Rin
Adalat No.3, Dhaka and allowed the
Miscellaneous Case No.07 of 1996 under order
21 Rule 58 of the Code of Civil Procedure by
the impugned judgment and order.
Being aggrieved, the judgment-debtors have
preferred this appeal upon getting leave.
Mr. Qumrul Haque Siddique, learned Counsel
appearing for the appellants, submits that the
admitted position is that late Khawja
Habibullah Bahadur leased out the suit
properties to Pearoo Miah Sardar by a
registered yearly lease deed dated 21.12.1956
and in the lease deed it was clearly stipulated
that the lease shall endure and subsist for a
period of 50 years from the 1st day of January,
1957 to 21 st day of December, 2007 and that
the lease hold interest thus created should be
heritable by the heirs of the lessee and should
also be transferrable in any manner whatsoever,
the High Court Division erred in law in making
the rule absolute. He further submits that
after acquisition of rent receiving interests
late Pearoo Miah Sardar became tenant under
the Government, thereby, he acquired valid
title of the property in question, the High 6
Court Division erred in law in making the Rule
absolute. He lastly submits that instant writ
petition was not at all maintainable.
Mr. Probir Neogi, learned Senior Counsel
appearing for the respondent No.1, submits that
regard having been had to the provisions of
section 85(1) (e) of the Non Agricultural
Tenancy Act, the land, in question, being a
land under a public waqf nothing in this act
shall apply to the instant case. He further
submits that when the indenture of the lease
clearly provides that the lease is for specified
period, the said lease is not lease in
perpetuity but is one for specified period. He
further submits that section 26A of the Non
Agricultural Tenancy Act and section 81A of the
State Acquisition and Tenancy Act, have no
manner of application in the instant case since
lease in question started on 21.12.1956.
It appears from the materials on record that
Uttara Bank Limited, instituting Title Suit
No. 244 of 1979 for recovery of outstanding loan
against the appellants, got compromise decree on
23.09.1984 but the judgment debtors failed to
pay the said decreetal dues. Thus, the Bank
filed Title Execution Case No.151 of 1991 and in 7
the said execution proceeding the case land was
attached and in order to sell the said land in
auction an auction notice was published in “The
Daily Inquilab”. The writ petitioner respondent
No.1, thereafter, filed an application under
order 21 Rule 58 of the Code of Civil Procedure,
stating that the property described in the
schedule No.1 to the application for execution
is Waqf property which was leased out to one
Pearoo Miah Sardar by registered lease deed on
21.12.1956 for a period of 50 years at a yearly
rent of taka 250/- only. In clause “G” of the
said lease deed it was specifically stipulated
that after expiry of the period of lease, the
lessee would surrender the possession of the
lease property. The judgment-debtors have had no
right to mortgage the property to the plaintiff
Bank. It was the contention of the learned
Advocate of the appellants that after
enforcement of the State Acquisition and Tenancy
Act, the lessee became the permanent lessee
under the Government and that the respondent
No.1 had no rent receiving interest in the case
property.
The rent receiving interest of all the
rent receivers were acquired with effect from
14.04.1956 under section 3 of the State 8
Acquisition and Tenancy Act, as amended by East
Bengal Ordinance No. III of 1956 in the District
of Dhaka vide notification Nos.4826 LR to 4836-
LR respectively, dated 2nd April, 1956, published
in Dhaka Gazette extra-ordinary dated 2nd April,
1956 (part one). The instant lease deed was
executed and registered on 21.12.1956, that is,
after enforcement of State Acquisition and
Tenancy Act
. In such view of the matter, the
submission made by Mr. Siddique that after
enforcement of the State Acquisition and Tenancy
Act, lessee Pearoo Miah Sardar became tenant
under the Government has no leg to stand.
Moreso, it appears from the lease deed that
there was clear stipulation that the lessor
agreed with the lessee that lease shall endure
and subsist for a period of 50 years, from the
1st day of January, 1957 to 21 st day of December,
2007. From that aforesaid condition of the
lease and pursuant to the provision of section
108(B) of the Transfer of the Property Act, it
is apparent that the lessor was entitled to get
back the property after expiry of 50 years.
After expiry of that 50 years tenure, the lease
hold rights of the appellants have been
extinguished. 9
Considering the aforesaid facts and
circumstances of the case, we are of the view
that the High Court Division has not committed
any error of law in making the Rule absolute
releasing the property of the writ petitioner
respondent No.1 from the attachment.
Accordingly, we do not find any substance in
the appeal.
Thus, the appeal is dismissed.
C.J.
J.
J.
The 3rd August, 2022.
/words-1556/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 222 OF 2016.
(From the judgment and order dated 12.06.2012 passed by the Hi gh
Court Division in Civil Revision No.1725 of 2007)
Mosammat Asma Khatun being
dead his heirs: Md. Anisur
Rahman and others :
Appellants.
=Versus=
Md. Abdul Karim being dead
his heirs:
Rahman and others:
Respondents.
For the Appellants :
Mr. Kazi Akter Hamid, Senior
Advocate, instructed by Mr.
Md. Abdul Hye Bhuiyan,
Advocate-on-Record.
For the Respondent No.1:
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Syed Mahbubar Rahman,
Advocate-on-Record.
For the Respondent No.2:
Mr. Sheikh Mohammad
Morshed, Additional
Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
Respondent Nos.3-13 : Not represented.
Date of hearing : 15.03.2023, 28.03.2023, 29.03.2023,
05.04.2023, 03.05.2023 & 10.05.2023.
Date of judgment : 23.05.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal is
directed against the judgment and order dated
12.06.2012 passed by the High Court Division in 2
Civil Revision No.1725 of 2007 making the Rule
absolute.
The relevant facts, for disposal of this
appeal, in short, are that respondent No.1 herein
as plaintiff filed Title Suit No.166 of 1977 in
the third Court of Subordinate Judge, Dhaka (which
was subsequently renumbered as Title Suit No.22 of
2003) for specific performance of contract stating
that the suit land measuring an area of 7 katha 9
chhataks of plot No.163A, Motijheel Commercial
Area, Dhaka was leased out to Abdus Sattar Bepari,
predecessor of the defendant Nos.1 to 12 for 99
years by the Government at a consideration of
tk.48,301/- for construction of building. Out of
the said amount, Abdus Sattar Bepari paid
tk.10,640/- only and unpaid premium was
tk.37,661/- which was to be paid by installments
as per terms and conditions setforth in the
allotment letter. Abdus Sattar Bepari, in total,
paid tk.19,908/- by different installments till
21.01.1971 but he could not make any construction
as per terms of the allotment letter due to his
financial constraint. He was, therefore, looking
for an efficient contractor to finance and
supervise the construction. The plaintiff was a
first class contractor and had intimacy with Md. 3
Ariff, one of the sons of Abdus Sattar Bepari. He
agreed to invest in the suit land. Accordingly, a
deed of agreement and irrevocable power of
attorney were executed and registered on
02.02.1971 by Haji Abdus Sattar Bepari in favour
of the plaintiff. Sattar Bepari received a sum of
tk.75,000/- from the plaintiff as security money.
The plaintiff was given possession of the suit
land. Due to the war of liberation in 1971, the
proposed construction work could not be done.
Sattar Bepari also took loan of tk.30,000/- from
the plaintiff. In this situation, Sattar Bepari,
being unable to return the loan amount and unpaid
portion of the lease money, decided to sell the
suit land to the plaintiff at a consideration of
tk.1,08,000/- with the liabilities. Accordingly,
he executed an agreement for sale on 31.07.1971 in
favour of the plaintiff and also executed a
receipt acknowledging the payment of
tk.1,07,000/- and handed over all original
documents to the plaintiff. Due to his sudden
death in August, 1971 Sattar Bepari could not
execute and register the sale deed. He left behind
defendants No.1 to 12 as his heirs. It was
stipulated in the agreement that Abdus Sattar
Bepari would collect permission from the 4
Government, income tax clearance and other
required papers, and inform the plaintiff
accordingly and, after payment of balance
consideration by the plaintiff, he would execute
and register the sale deed. After the death of
Abdus Sattar Bepari, the plaintiff requested the
defendants who initially assured him to execute
and register the sale deed. Meanwhile, the
plaintiff continued to pay installments of premium
to the Government. He paid tk.9,244/- till
26.07.1973. All of a sudden, the plaintiff came
to know that defendant Nos.1 to 12 are trying to
sell the suit property elsewhere. Accordingly, the
plaintiff served a legal notice dated 02.03.1976
upon the defendants requesting them to execute and
register the sale deed but they did not pay any
heed to his request. Hence, the plaintiff filed
the instant suit.
The defendant Nos.1-7 and 10 contested the
suit by filing written statement denying the
material averments made in the plaint contending
that late Abdus Sattar Bepari did not execute any
such agreement for sale. The agreement for
construction of building in the suit land was not
acted upon and the plaintiff’s failure to
construct building caused irreparable loss to the 5
defendants. Late Abdus Sattar Bepari did not
receive any money from the plaintiff. With a view
to grabbing the suit land the plaintiff brought
the suit on the basis of a forged agreement for
sale. The suit should be dismissed.
Trial Court, by its judgment and decree dated
28.05.2005, decreed the suit. Then the defendants
preferred Title Appeal No.304 of 2005 in the Court
of District Judge, Dhaka, which was heard by the
Additional District Judge, 6th Court, who after
hearing the parties allowed the appeal reversing
the judgment and decree passed by the trial Court
and decreed the suit in part. Being aggrieved, the
plaintiff filed Civil Revision No.1725 of 2007 in
the High Court Division and obtained Rule, which
was made absolute. Thus, the appellants have
preferred this appeal upon getting leave.
Dr. Kazi Akhter Hamid, learned Senior Counsel,
appearing for the appellants, submits that the
High Court Division erred in law in not holding
that the alleged “bainanama” was fake, forged and
fraudulent. He submits that the plaintiff failed
to prove the story of talk of sale, payment of
consideration as well as offer of payment of the
rest consideration by the plaintiff to the heirs 6
of Abdus Sattar Bepari, the High Court Division
erred in law in decreeing the suit.
Mr. Probir Neogi, learned Senior Counsel,
appearing on behalf of the respondents, submits
that all the three Courts believed that the
agreement for sale was duly executed by Abdus
Sattar Bepari in favour of plaintiff Abdus Karim
and the same was partly performed, the High Court
Division rightly made the Rule absolute. He
submits that the appellate Court also found the
agreement for sale genuine but erroneously
dismissed the suit, the High Court Division
rightly made the Rule absolute upon setting aside
the judgment and decree of the appellate Court.
Md. Abdul Karim, on 29.07.1977, filed the
instant suit against the successive heirs of Hazi
Abdus Sattar Bepari for specific performance of
contract and “to give the defendants No.1-12 a
reasonable time to obtain sanction from the
Government i.e. from the defendants No.14 and 15,
to collect Income tax and gains tax clearance
certificates and to register the sale deed on
receipt of balance consideration; to give a chance
to the plaintiff for payment of the balance
premium to the credit of the defendant No.15 and
to execute and register the sale deed in favour of 7
the plaintiff through due process of Court in
default of the defendants to do the same and to
put the plaintiff in possession of the suit land”.
It was the plaint case that Hazi Abdus Sattar
Bepari took lease of the suit land measuring an
area of 7 kathas and 9 chhataks situated within
Motijheel Commercial area being plot No.163A
(South) by a lease deed dated 11.07.1962. Total
lease money was fixed at tk.48,301/- to be paid to
the Government. It has been admitted in the plaint
that Abdus Sattar Bepari paid taka 19,908/- out of
total consideration. It has further been stated in
the plaint that till 21st January, 1971 he could
not start any construction in the suit land and,
thus, the plaintiff, being an enlisted First Class
Contractor, came to an agreement with him to
construct building. Accordingly, Abdus Sattar
Bepari executed a Power of Attorney on 02.02.1971
in favour of the plaintiff. Estimated cost of
construction of building was assessed
tk.3,54,770/-. He received a sum of tk.75,000/- as
security money. He again took loan of tk.30,000/-
from the plaintiff and executed an agreement for
sale on 31.07.1971 in favour of the plaintiff
acknowledging the fact of payment of tk.1,07,000/-
and handed over the original title documents to 8
the plaintiff. It has further been stated in the
plaint that Abdus Sattar Bepari died in the first
part of August, 1971 (that is, within few days
from the execution of the alleged agreement for
sale) leaving the defendants No.1-12 as his
heirs. In his evidence P.W.1 has stated, Ò14B
wW‡m¤^i/1971 nvRx mv‡n‡ei wZbcyÎ †gvt Avwid, nvRx Avwjd I Ave`yi iDd‡K cvK evwnbx
nZ¨v K‡i|Ó In paragraph 9 of the plaint, the plaintiff
stated that he had paid a sum of tk.9,244/-
through eleven challans till 26.07.1973. He came
to know that defendant Nos. 1 to 12 were trying to
sell the scheduled land elswehre ignoring the
terms and conditions of the agreement for sale and
thus, he issued legal notice. Receiving such
notice, the defendant Nos.2 and 3, hiring some
terrorists, tried to dispossess the plaintiff from
the suit land. He filed the Title Suit No.209 of
1976 for permanent injunction and, at one stage,
he got an order of status-quo. On 03.01.1977
defendants No.2 and 3 dispossessed the plaintiff
from the suit land by force. It has further been
stated in the paragraph 20 of the plaint that, on
the date of execution of agreement for sale, the
unpaid premium was tk.26,393/- and the plaintiff
paid tk.11,212/- though in paragraph 9 he stated
that till 26.07.1973 he paid tk.9244/- only. In 9
paragraph No.23 of the paint, the plaintiff
stated,
“That the cause of action for the suit
arose first on 31.07.1971 the date of
execution of the bainapatra in favour of
the plaintiff by the predecessor of the
defendant Nos.1-12 and thereafter with
the expiry of 3(three) years on
31.07.1974 the period within which the
contract was to be performed and
thereafter on each date of demanded by
the plaintiff to the defendant Nos.1-12
and lastly in March, 1976 when the legal
notices were served upon the defendants,
within plot No.163A Motijheel Commercial
Area where the suit properties situated
within the jurisdiction of Police Station
formerly Ramna and now Motijheel and
within the jurisdiction of this Court’”.
In paragraph No.23, the plaintiff
categorically stated that the cause of action of
the suit arose at first on 31.7.1971 and,
thereafter, on 31.07.1974, the period within which
the contract was to be performed. Article 113 of
the first schedule to the Limitation Act provides
three years limitation (before amendment) from the
date fixed for the performance, or if no such date
is fixed, when the plaintiff has notice that
performance is refused. When date is fixed for
performance of contract, the suit should be 10
regulated by the first part of the Article 113 of
the first schedule to the Limitation Act. In
deciding the issue as to the application of first
part, the Court shall take into consideration the
surrounding circumstances as well. The case at
hand does not fall in the first category of
Article 113 of the first schedule to the
Limitation Act because no date was fixed in the
alleged agreement for its performance. Thus the
case is to be governed by the second part, that
is, when the plaintiff has a notice that
performance is refused. In paragraph 23 of the
plaint, the plaintiff specifically stated that
first cause of action arose on 31.07.1971 and as
per first part of Article 113 of the first
schedule to the Act the plaintiff was entitled to
get 3 years to enforce specific performance of
contract, which expired on 31.07.1974. We have
found that the suit was filed on 29.07.1977.
The
expression “date fixed for the performance” is a
crystalized notion. When a date is fixed it means
that there is a definite time fixed for doing a
particular act. The date fixed for the parties for
performance of the agreement should be ascertained
on the basis of terms and conditions of the
contract. In a case, where no time for performance 11
was fixed, the court had to find out the date, on
which, the plaintiff had noticed that the
performance had been refused by the defendants.
For getting benefit of second part of Article 113,
in paragraph 23 of the plaint, it was inter alia,
stated, “------ with expiry of 3(three) years on
31.07.1974 the period within which the contract
was to be performed and thereafter on each date
of demand by the plaintiff to the defendants 1-
12------------“. In his evidence, P.W.1 said, Ò1-
12bs weev`xMb‡K Avwg bvwjkx m¤úwË eve` Avgvi eive‡ i mvd Kejv `wjj m¤úv`‡bi Rb¨
Aby‡iva Kiv ¯^‡Z¡I Zvnviv Uvj evnvbv µ‡g Avgv‡K NyivB‡Z _v‡Kb|Ó The aforesaid
portion of the pleading and evidence clearly
indicate that inspite of repeated demand, the
defendants did not execute the sale deed. That is,
his approach to execute and register the sale deed
was denied repeatedly by the defendants.
It was
the attempt of the plaintiff to get benefit of the
second limb of Article 113 of the first schedule
to the Limitation Act. In that case, it was the
obligation of the plaintiff to state the definite
date of refusal in the pleading which is absent in
paragraph 23 of the plaint as quoted earlier
. It
is difficult for the Court to find the actual date
to ascertain as to whether the suit was filed
within three years or not or whether the plaintiff 12
is entitled to get benefit of second limb of
Article 113 of the first schedule to the
Limitation Act or not. It is the spirit of law
that suit was required to be filed within three
years from the date fixed for the performance, in
the event no date is fixed for the performance
within a period of three years from the date when
the plaintiff has notice that performance is
refused. Such specific assertion is absent in the
pleading. Since the instant suit was filed on
29.07.1977 it is apparent that the same was barred
by limitation.
It appears from the plaint that the plaintiff
has stated that the total lease money was fixed at
tk.48,301/-. Out of that amount, Abdus Sattar
Bepari paid tk.19,908/- till 21.01.1971 by
challan. (paragraph 3 of the plaint). That is,
unpaid amount was tk.48301/ – tk.19908/=tk.28393/-
. In the plaint, the plaintiff stated that till
26.07.1971 he deposited tk.2000/- and, thereafter,
till 26.07.1973 he deposited tk.9,244/-. It was
stated that he had deposited tk.11,244/-.
According to the plaint a sum of tk.17,149/-
remained unpaid to the Government. In order to
adjudicate the issues properly, we directed Sheikh
Mohammad Morhsed, learned Additional Attorney 13
General to produce the respective record from
concerned Office, that is, the Ministry of Public
Works and Housing who produced the same in this
Court for our consideration. He submits that
pursuant to the terms and conditions to pay the
premium the lease itself is liable to be
terminated since no construction was made in time
and lessee Abdus Sattar Bepari failed to deposit
the lease money in time. He submits that the suit
land is situated within Motijheel Commercial Area,
the present market price of the same is more than
taka one hundred crore. He submits that the story
of payment of consideration by the plaintiff is
inconsistent with the payment as appeared in the
concerned record.
In a suit for specific performance of contract
to sell relief is given by ordering the person who
contracted to sell to do the act which he is under
an obligation, a duty enforceable by law, to do
that is to say, in the case of a contract to sell
land, to execute a sale deed. We have seen the
claim of the plaintiff in the plaint as to payment
of consideration and obligation of payment of
premium and alleged payment of the same.
When a
condition was incorporated at the instance of both
the parties, such conditions would be binding on 14
the parties. In the instant case it was the
condition that the plaintiff would deposit the
installments of premium. The plaintiff claimed
that he had deposited the same. The deposit of
premium was essential term of contract. But on
perusal of the record, produced from the office of
Housing Settlement, it appears that on 16.12.1970,
a Certificate Case was started for realization of
arrear salami of tk.5,986/- and unpaid interest
was tk.1068/-. Certificate debtor of that
Certificate Case was Sattar Bepari who paid
tk.4000/-, that is, unpaid amount was only
tk.1986/- and interest was tk.1068/-. From the
office note it further appears that on 24.05.1971,
Certificate debtor paid tk.1500/-. Rest unpaid
amount was only tk.486/- and interest was
tk.1068/-. From the office note dated 21.11.1973,
it further appears that unpaid amount and interest
was tk.6,670.63/- only. The lessee deposited
tk.1494/-. It further appears from the office note
dated 09.04.1974, that Certificate debtor had
deposited tk.13025/-. Thereafter, he paid premium
of 14th installment which was excess amount.
From the amount paid as appeared from the
office notes it appears to us that the same does
not support the plaintiff’s case as pl eaded in his 15
plaint. Moreso, the plaintiff did not comply with
the terms and conditions of the alleged agreement
for sale even if the same is accepted as genuine
one. Non compliance of the mandatory condition
itself disentitles the plaintiff from obtaining an
equitable remedy for specific performance.
The conduct of the plaintiff is very
suspicious. In his cross examination, the P.W.1
admitted that Abdus Sattar Bepari had business of
timber, rice mill, saw mill and cargo. He further
said, ÒZvnvi evox‡Z Avgvi Avmv-hvIqv wQj bv|Ó Thereafter, he said,
Òbvwjkx RvqMvq 02/02/71Bs me© cª_g Avwm|Ó He further said, ÒPzw³cÎ,
evqbvi w`b nvwR mv‡n‡ei mv‡_ Avgvi 2/ 3 w`b †`Lv nq |Ó Thereafter, he
said, ÒnvRx mv‡ne my¯n wQ‡jb bv Amy¯n wQ‡jb Avgvi Rvbv bvB|Ó He added,
ÒnvRx mv‡n‡ei 2 †Q‡j‡K RvbZvg Avwid I Avwjd mvevjK wQj| evKx †Q‡j †g‡qiv bvevjK
wKbv Rvwb bv| Ó He admitted that three sons of Haji
Sattar, namely, Md. Arif, Alif and Rouf were
killed in 14th December, 1971. In the plaint, it
appears that some of the heirs of Haji Sattar,
that is, defendant Nos.9,10, 12 and 13 were shown
as minors.
From the evidence quoted above it is apparent
that there are some inconsistencies regarding the
claim of the plaintiff, that is, in respect of
talk of sale, settlement of consideration,
execution of “bainanama”, payment of premium to 16
the Government by the plaintiff, offer made by the
plaintiff to the defendants on the basis of
alleged agreement to get the sale deed executed
and registered upon payment of rest consideration
and as to the delivery of possession of the suit
land. All those inconsistencies created a doubt
about the genuineness of the alleged agreement for
sale and transaction.
Specific performance of contract is an
equitable and discretionary relief to be given by
the competent Court exercising the same
judiciously. To get relief it is imperative upon
the plaintiff to prove that there was agreement
for sale and consideration was settled and
pursuant to the agreement a considerable amount
was paid out of settled consideration, the
plaintiff has already performed or was always
ready and willing to perform the essential terms
of agreement which were to be performed by him.
The Court shall Judge the conduct of the
plaintiff having regard to the entirety of the
pleadings as to the evidence brought on records.
The pleading and the evidence adduced by the
plaintiff and the other materials on record raised
a doubt about the talk of sale, payment of
consideration, execution of bainanama, delivery of 17
the possession of the disputed property and making
construction in the suit land. Without taking any
permission and even without making any prayer to
the Government to get permission to transfer the
suit land, the story of agreement for sale
advanced by the plaintiff creates suspicion.
Taking into account the fact that during the war
of Liberation when every citizen of this country
was afraid of saving his life and the fact that
Haji Sattar Bepari died subsequent after alleged
execution of “bainanama” and the admitted fact
that his three sons were killed during the war of
Liberation and having regard to the conduct of the
plaintiff, we are of the view that the instant
case was not fit case for exercising discretion
for enforcement of contract and the plaintiff was
not entitled to get any relief, the High Court
Division has committed an error of law in not
exercising its discretion judiciously and,
thereby, erroneously made the Rule absolute.
Considering the aforesaid facts and
circumstances, we find the substance of the
appeal.
Thus, the appeal is allowed. The judgment and
order dated 12.06.2012 passed by the High Court 18
Division in Civil Revision No.1725 of 2007 is
hereby set aside.
C.J.
J.
J.
The 23rd May, 2023.
/words-3490/
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL PETITION FOR LEAVE TO APPEAL NO.494 AND 495 OF 2018
(From the judgment and decree dated the 16th day of May, 2017 passed by the
High Court Division in First Appeal No.106 of 2009 and Cross Objection No.
795 of 2011 respectively.
Engr. Md. Shaheedullah : . . . Petitioner
(In both the cases)
-Versus-
Mrs. Shahana Neyamat and others : . . . Respondents
(In both the cases)
For the Petitioner
(In both the cases)
: Mr. Mohammad Mehadi Hassan
Chowdhury, Senior Advocate
instructed by Mr. Mohammad Ali
Azam, Advocate-on-record
For Respondent No.1
(In both the cases) : Mr. Saifur Rashid, Advocate
instructed by Mr. Md. Azimuddin,
Advocate-on-Record
For Respondent Nos.2-3
(In both the cases) : Not Represented
Date of Hearing and Judgment : The 24th day of July, 2024
JUDGMENT
M. Enayetur Rahim, J: Civil petition for leave to appeal
No.494 of 2018 is directed against the judgment and order
dated 16.05.2017 passed by the High Court Division in First
Appeal No.106 of 2009(heard along with Cross Objection
No.795 of 2011) allowing the appeal, and Civil Petition for
leave to Appeal No. 495 of 2018 is directed against the
order passed by the High Court Division in Cross Objection
No. 795 of 2011 rejecting the same.
The relevant facts leading to the filing of these
civil petitions for leave to appeal are that, the present
respondent No.1 as plaintiff instituted Title Suit No.11 of
2004 in the Court of Joint District Judge, 3rd Court, Dhaka 2
for specific performance of contract contending, inter alia,
that defendant No.1 (present petitioner)is the owner of Plot
No.42 of Sector 3, Uttara Model Town, Mentioned in the
schedule of the plaint, who erected a six storied building
having 10 apartments in the suit plot No.42. Thereafter, he
sold out some of the apartments to different persons along
with 1/10th portion of undivided and un-demarcated land of
594 square yards (7.5 kathas) of the suit plot to each
apartment owner. The defendant No.1 in need of money offered
in May 2002 to the plaintiff to sell out the suit apartment
in the fourth floor (eastern side) of the said building
along with 1/10th portion of 594 square yards (7.5 kathas)
land in undivided and un-demarcated shares. The plaintiff
agreed to purchase the suit flat. Accordingly, the plaintiff
and defendant No.1 came to an oral agreement on 16.05.2002
in presence of Sabbir Zaman, Nurul Islam, Habibur Rahman and
others for the sale of the suit apartment at a price of
Tk.18,20,000/-(Eighteen Lac Twenty Thousand) only. In
accordance with the terms of oral agreement dated 16.05.2002
the plaintiff paid an amount of Tk.2,00,000/- (Two Lac) in
advance to the defendant No.1 on the same date. Husband of
the plaintiff Mr. Neyamat Ullah issued a cheque to the
defendant being No.3098557 dated 16.05.2002 of the United
Commercial Bank Ltd. Gulshan 2 Branch, Dhaka for the said
amount of Tk. 2,00,000/- (Two lac). After receiving the
cheque on 16.05.2017 the defendant No.1 delivered vacant
possession of the suit property to the plaintiff on the same
date and since then the plaintiff has been residing therein
with her husband and daughters. An oral agreement was made
between the parties that defendant No.1 shall execute and 3
register the sale deed in favour of the plaintiff by
15.05.2003 after receiving the remaining money. Thereafter,
on 27.11.02 in compliance with the terms of oral agreement,
the plaintiff issued a cheque being No.2302965 of the Al
Baraka Bank Ltd. (at present Oriental Bank Ltd.) Gulshan
Branch for an amount of Tk.10,00,000/- (Ten lac) to the
defendant No.1 and he encashed the said cheque and received
the amount. Although, the plaintiff paid Tk.12,00,000/-
(twelve lac) to the defendant No.1 in advance, defendant
No.1 did not provide any receipt to her in spite of repeated
requests on several occasions. On 30.04.2003 when the second
daughter of the plaintiff asked defendant No.1 to receive
the rest of the amount of Tk.6,20,000/- (six lac and twenty
thousand) and asked to execute and register the sale deed in
favour of the plaintiff, the defendant No.1 refused to do
so. The plaintiff again on 10.05.2003, 17.07.2003 and
30.10.2003 offered to receive the said amount and requested
the defendant No.1 to execute and register the sale deed in
her favour, but the defendant No.1 refused. Lastly on
08.01.2004 the plaintiff sent a legal notice to the
defendant No.1 asking him to execute and register the sale
deed in favour of the plaintiff within 7 (seven) days of the
date of receipt of the notice, in default the plaintiff
would file suit against him for specific performance of
contract, but the defendant No.1 did not pay any heed,
rather without giving any reply to the legal notice of the
plaintiff, he sent a legal notice to the plaintiff on
21.01.2004 through his lawyer stating that the plaintiff and
her husband are the tenants of the scheduled flat and the
defendant No.1 wanted to sell out the scheduled property 4
within 1 (one) month and also asked the plaintiff to vacate
the possession of the scheduled flat by 01.02.2004. Since
the plaintiff was inducted into possession and she has given
an amount of Tk.10,000/- (ten thousand) to the defendant
No.1 towards payment of electricity bills. However, the
defendant No.1 has not given any receipt whatsoever despite
repeated requests by the plaintiff except a handwritten note
calculating the electric bill for a period of 112 days from
01.09.2002. The plaintiff has also given an amount of
Tk.8,000/- (Eight thousand) only towards payment of gas
bill. The plaintiff after being inducted into possession is
paying an amount of Tk.2000/- (two thousand) only as service
charge which includes security, water and sewerage. The
defendant No.1 was issuing receipts for the same in the name
of the plaintiff. However, since July, 2003 with mala fide
intention, the defendant No.1 is filling up the receipts in
his own name and the defendant No.1 refused to execute and
register the sale deed in favour of the plaintiff. Hence,
the plaintiff filed the suit.
The defendant No.1 contested the suit by filing written
statement denying all the material allegations made in the
plaint contending that he is the owner and possessor of the
suit property, and being the owner and possessor, he
mortgaged the same with the Islami Bank Bangladesh Ltd.
Uttara Branch on 15.09.1999 for loan to construct 6(six)
storied building with the approved plan from RAJUK in which
there are 10 flats. To pay the construction bills the
defendants No.1 sold 6 (six)flats in the 1st, 2nd and 3rd
floor after getting clearance from the Islami Bank
Bangladesh Ltd. and after making mortgage deed dated 25th of 5
May 2003, the defendant No.1 sold 6 (six) flats to different
persons and the rest 4 flats are being possessed by the
defendant No.1 for residing there off and by letting out. As
per revised mortgage deed the defendant No.1 cannot sale the
flats of 4th and 5th floor without permission from the Bank
and he can reside or rent the flats only. The husband of the
plaintiff was inducted as a monthly tenant in the suit flat,
i.e. at flat No.4/A, in the 4th floor (eastern side) from 1st
June 2002 at a monthly rent (including service charge) of
Tk.20,000/- (twenty thousand) and a sum of Tk.2,00,000/-
(two lac) was paid by the husband of the plaintiff as
advance rent on 16.05.2002 of the United Commercial Bank
Ltd. Gulshan-2 Branch, Dhaka; like all other tenants in the
building the plaintiff is to pay all other charges like
electricity and Gas bill as utility bill. There is or was no
written contract to let or no rent receipt issued; the
husband of the plaintiff is related with the Manpower export
to foreign counties. Knowing this the defendant No.1
requested the husband of the plaintiff to send two relatives
of the defendant No.1 to Italy namely Md. Sharif Ullah, son
of Md. Fazlul Haq Sarker, Passport No.00812101, issued on
14.09.1999 and Md. Sirajul Islam, son of Md. Azahar Ali,
Passport No. Q 0849431, issued on 03.12.2001. The Husband of
the plaintiff agreed and claimed Tk.10,00,000/- (ten lac)
only and committed to send them to Italy within 3 (three)
months and if failed to do so, he will return the money
after 3 (three) months. The defendant No.1 paid
Tk.10,00,000/- (Ten lac) in cash including their passports
to the husband of the plaintiff on 10.08.2002. The husband
of the plaintiff through M/s. HEAVEN ASSOCIATES of Gulshan 6
Shopping Center (Gulshan-1) Dhaka, a recruiting agency
tried, but within 3 (three) months he could not succeed.
Then on request of the defendant the husband of the
plaintiff returned the passports of the two persons and
issued a cheque of Tk.10,00,000/- (ten lac) being No.1202965
dated 27.11.2002 of Al Baraka Bank, Gulshan Branch, Dhaka to
the defendant No.1 on 27.11.2002. The cheque of Tk.
2,00,000/-(two lac) of advance rent was issued by the
husband of the plaintiff and the returned cheque of
Tk.10,00,000/- (ten lac) was issued by the husband of the
plaintiff in favour of the defendant No.1 for the above
manpower business purpose. The defendant did not make any
oral agreement for sale. The plaintiff’s case is false.
The respective parties adduced evidence both oral and
documentary before the trial Court and the trial Court on
conclusion of the trial dismissed the suit.
Being aggrieved by the said judgment and decree the
plaintiff preferred First Appeal No.106 of 2009 before the
High Court Division. The contesting defendant No.1 also
filed Cross Objection No.795 of 2011 in the High Court
Division, which was heard along with the said First Appeal.
After Hearing, a Division Bench of the High Court
Division by the impugned judgment and decree dated
17.05.2017 allowed the appeal and decreed the suit upon
setting aside the judgment and decree passed by the trial
Court and rejected Cross Objection No.795 of 2011 filed by
the contesting defendant.
Being aggrieved by the said judgment and decree the
defendant has preferred these civil petitions for leave to
appeal before this Division. 7
Mr. Mohammad Mehadi Hassan Chowdhury, the learned
Senior Advocate appearing for the petitioners submits that
the plaintiff’s case is solely based on oral agreement
alleged to have been executed between the plaintiff and the
defendant and in the plaint few persons have been named who
were said to be present at the time of alleged oral
agreement on 16.05.2002, and in the plaint though the
plaintiff stated that at the time of oral agreement, she,
the defendant No.1, one Sabbir Zaman, Habibur Rahman and
Nurul Islam were present but to prove her statement made in
the plaint in respect of this oral agreement, the plaintiff
herself did not depose as witness in the suit and her
daughter deposed on her behalf, the attorney was not a party
to the agreement and also not present at the time of
agreement as such, she was incompetent to depose in the suit
and her evidence was inadmissible, which was not considered
by the High Court Division.
Mr. Chowdhury further submits that an agreement for
sale contains some terms and condition as to the
consideration money, time of payment of consideration money,
time to execution of transfer deed etc. but neither the
plaintiff nor the witnesses could make detail statement in
respect of all their terms and condition and as such the
plaintiff failed to prove that there was any oral agreement
for sale of the flat and the High Court Division failed to
consider this aspect of the matter.
The defendant No.1 published notice about letting the
flat in the Daily Ittefaq dated 12.04.2002 on taking such
information about the rent, the plaintiff took rent of the
flat from the defendant No.1 and, thereafter, she paid 8
monthly rent and utility bills as a tenant on behalf of the
defendant No.1 but ultimately he did not pay rent though she
has enjoying the flat as tenant and, thereafter, the
defendant No.1 had to lodge G.D. No.1953 dated 27.10.2003
but this fact was not considered by the High Court Division.
Mr. Chowdhury also submits that the oral agreement is
to be proved very strictly but in the instant case, the
plaintiff having failed to appear to depose in the Court to
prove the plaint and the P.W-2 deviated from the statement
made in the plaint, similarly the P.W-4 also deviated from
the plaint case of oral agreement and case of part
performance, the P.W-4 gave altogether a different statement
deviating from the plaint, P.W-5 did not support the
plaintiff’s case but the High Court Division altogether
failed to consider this deviations of the P.Ws from the
plaint story and thus erred in law in holding that there was
an existence of the oral agreement between the plaintiff and
the defendant No.1 in respect of sale of the flat in
question.
It was further argued by the learned Advocate for the
petitioner that under section 53A of the Transfer of
Property Act the party asserting part performance of
contract must prove the existence of a contract in writing
but there is no such written agreement and as such the
plaintiff does not have any right of protection under
section 53A of the Transfer of Property Act and since the
plaintiff failed to prove the contract with reasonable
certainty about its terms of the contract even if presumed
(not admitted) to be in existence, the same cannot be
enforced and as such the suit was liable to be dismissed and 9
the Trial Court rightly dismissed the same but the High
Court Division erred in law in decreeing the suit which is
ex-face not tenable in law and liable to be set aside.
Mr. Chowdhury lastly submits that P.W-1 is the daughter
of the plaintiff, P.W-2 is the son-in-law of the plaintiff,
P.W-3 is also nephew of the plaintiff and the P.W-4 is the
husband of the plaintiff and all of them are interested
witnesses, on the other hand P.W-5 did not support the
plaintiff’s case and, as such, there was no neutral witness
in favour of the plaintiff but the Court of appeal below,
the final Court of facts, did not consider this vital aspect
when deciding a suit for specific performance of contract
based on oral agreement and as such the impugned judgment
and decree is liable to be set aside.
On the other hand, Mr. Saifur Rashid, learned Advocate
for the respondent made submissions in support of the
judgment and decree passed by the High Court Division.
We have heard the learned Advocates for the respective
parties, perused the judgment of the trial Court as well as
the same of the High Court Division and other materials as
placed before us.
In the instant case, the plaintiff has sought relief of
specific performance of contract on the basis of an oral
agreement. It is well settled principle of law that such
type of oral agreement has to be looked at with some
suspicion unless it is proved by reliable evidence. In the
case of Moslemuddin (Md) and others vs. Md. Jonab Ali and another,
reported in 50 DLR (AD) 13, it has been held that: “We should
observed here that so far as the oral agreement is concerned it should always be very 10
closely scrutinized and taken with a grain of salt. Although oral agreement is not barred by
any law it has to be looked at with some suspicion unless proved by very reliable evidence
and circumstances. In Ouseph Varghese vs. Joseph Aley, (1969) 2 SCWR 347 the
Supreme Court of India discouraged a decree for specific performance of contract on the
basis of an agreement supported solely by oral evidence.”
In the case of Government of Bangladesh vs. Mrs. Noorjahan Khan
and others, reported in 2000(VIII)BLT(AD), this Division held that
in a suit for specific performance of contract the
genuineness of the agreement of sale is the prime
consideration.
In order to decree a suit for specific performance of
contract the plaintiff must prove that there was a concluded
contract between himself and the defendant. Where there is
no concluded contract there will be no enforcement
[Reference: Nur Mohammad and Co. Ltd vs. Bangladesh, 61 DLR (AD)77; H.N.
Babrics Ltd. vs. Mallick Textile Industries, 1985 BLD (AD) 271].
Upon perusal of the evidence on record, it is very
difficult for us to come into a definite conclusion that the
alleged oral agreement between the plaintiff and the
defendant was/is a concluded contract.
In the instant case it appears from the impugned
judgment that the High Court Division itself has determined
the price of the suit flat as Tk.36,00,000/-(Thirty lac) and
directed to pay the rest amount Tk. 24,00,000/- (twenty four
lac) to the defendant No.1 with a direction to the defendant
No.1 to execute the sale deed of the disputed apartment in
the next 30 days. Failing which the plaintiff is at liberty
to initiate proceeding in accordance with law. 11
The above finding of the High Court Division proves
that the alleged oral agreement, even if taken to be true,
was not a concluded contract and the High Court Division
exceeded its jurisdiction in determining the value/price of
the flat in question sitting in the Court of Appeal.
In a suit for specific performance of contract, neither
the trial Court nor the appellate Court has any
jurisdiction/authority to determine the price of suit
property afresh, exercising its judicial power ignoring the
terms of contract. Court cannot re-fix the consideration,
i.e. the value of the suit property and go beyond the terms
of the contract, and it cannot impose or add any term(s) in
the contract.
In the instant case the High Court Division most
erroneously itself re-fix the value of the suit flat, i.e.
the consideration and decreed the suit.
The trial Court relying on section 21 (b) of the
Specific Relief Act, 1877 has observed:
""GgZve¯’vq, evw`bx I 1 bs weev`xc‡ÿi g‡a¨ bvwjkx d¬vUwU weµ‡qi wel‡q
GKwU †gŠwLK Pzw³ m¤úv`b nIqvi welqwU cÖgvwYZ nB‡jI D³ Pzw³i g~j kZ©vejx
wbf©i‡hvM¨ cªgvwYZ bv nIqvq ev`xc‡ÿi `vexK…Z †gŠwLK Pzw³wU AvBbZ: eje`‡hvM¨
b‡n ewjqv Avwg g‡b Kwi| 3 bs wePvh¨ welqwU †mB g‡Z evw`bx c‡ÿi cªwZKz‡j
wb®úwË Kiv nBj|Ó
However, the High Court Division without adverting to
the said finding with reference to evidence on record passed
the impugned judgement and decree and thus, committed
serious error of law.
In the case of Kamrunnessa vs. Abul Kashem, reported in 2
MLR (AD) 220, it has been held that the discretionary relief
of decreeing specific performance depends on two cardinal 12
principle-(i)the plaintiff must prove the execution of the
deed of agreement and (ii) passing of consideration. In
the case of Kaniz Fanema vs. Bangladesh, reported in 6 MLR (AD) 203,
this Division held that where the genuineness of an
agreement is not established the suit for specific
performance cannot succeed.
In the instant case, the defendant categorically
asserted that the flat in question along with the other
flats of the suit plot was given mortgage to the Bank. But,
the bank has not been made a party in the suit. In the case
of Sooraya Rahman vs. Hajee Md. Elias, reported in 8 BLC (AD) 7, this
Division affirmed the findings of the High Court Division
that in a suit for specific performance of contract the
defendant No. 1 was a lessee for 99 years and the property
belonged to RAJUK. There was a provision in the lease deed
that permission from RAJUK would be necessary for transfer
of the property. Permission was obtained on 10.03.1973 which
was cancelled subsequently on 21.10.1974. RAJUK was not a
party in the suit, thus suit to be bad for defect of party
holding RAJUK is a necessary party thereto.
In the instant suit the mortgagee Islami Bank, Uttara
Branch is a necessary party, but the plaintiff did not make
it party, though the defendant in his written statement
categorically made statements to that effect. Thus, the suit
is bad for defect of party.
Having considered and discussed as above, we are of the
opinion that the High Court Division committed serious error
of law in passing the impugned judgment and decree decreeing
the suit for specific performance of contract on the basis 13
of an oral agreement which was not proved by the plaintiff
in accordance with law and on reliable evidence.
Since we have heard the learned Advocates for the
respective parties, we are inclined to dispose of the civil
petition for leave to appeal without granting any leave to
avoid further delay to dispose of the case.
Accordingly, Civil Petition No. 494 of 2018 is disposed
of. The impugned judgment and decree passed by the High
Court Division is hereby set aside.
However, the defendant-petitioner is directed to return
taka 12(twelve) lakh to the plaintiff within a period of 30
(thirty) days from the date of receipt of this judgment and
order. Since 2002, the plaintiff has been enjoying the flat
in question without paying any rent to the appeal, thus we
refrain to give any solitium to the plaintiff.
Civil Petition for Leave to Appeal No. 495 of 2018 is
disposed of in the light of the above judgment.
J.
J.
J.
B.S./B.R./*Words-3,534*
|
1
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Md. Shahinur Islam
CIVIL APPEAL NO.149 OF 2023
(From the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division in Company Matter No.483
of 2022)
Tabassum Kaiser : ....Appellant
=Versus=
Partex Cables Limited,
represented by its Managing
Director and others
: ...Respondents
For the Appellant : Mr. Probir Neogi, Senior Advocate
with Ms. Nihad Kabir, Senior
Advocate with Mr. Md.
Asaduzzaman, Senior Advocate with
Mr. Md. Anisul Haque and Mr.
Subrata Chowdhury, Advocates,
instructed by Mr. Md. Taufique
Hossain,
Advocate-on-Record
For Respondent Nos.1-2 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tanjib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mr. Md.
Helal Amin, Advocate-on-Record
For Respondent
Nos.3,4,7,8&10 : Mr. A. M. Aminuddin, Senior
Advocate with Mr. Tangib-ul Alam,
Senior Advocate and
Mr. Md. Mostafizur Rahman Khan,
Advocate, instructed by Mrs.
Madhumalati Chowdhury Barua,
Advocate-on-Record
Respondent NOs.5,6,9 &11-13 :
:
Not represented
Date of hearing : The 2nd & 3rd day of July, 2024
Date of judgment : The 31st day of July, 2023
JUDGMENT
M. Enayetur Rahim, J: The civil appeal, by leave, is directed
against the judgment and order dated 02.03.2023 passed by the
Company Bench of the High Court Division dismissing Company
Matter No.483 of 2022. 2
The case of the appellant is that respondent No.01-company
was incorporated on 18.09.2013 as a private limited company under
the Companies Act, 1994 [hereinafter referred to as the Act
1994], having registration No.C-111384 and involved in the
business as manufacturer of building wiring cables and power
cables in Bangladesh with initial authorized share capital of
taka 10,00,00,000/- (ten crore), divided into 10,00,000 (ten
lac) ordinary shares of taka 100 each wherein initial promoters
were Aziz Al Kaiser, respondent No.2 held 25,500 shares and Aziz
Al Mahmood [ex-shareholder and ex-director of respondent No.01-
Company] held 4,500 shares. Said Aziz Al Mahmood transferred his
entire shares being 4,500 shares of the company to respondent
No.02 and the present appellant, and resigned from his post as
Director of respondent No.01-Company on 25.12.2017. After the
said transfer of shares by said Aziz Al Mahmood, respondent No.02
held 27,000 shares and the present appellant held 3,000 shares of
respondent No.01-Company. Pursuant to the said transfer of shares
by said Aziz Al Mahmood, the appellant became a Director of
respondent No.01-Company and the ratio of shareholding structure
of respondent No.01-Company was 90:10, i.e. respondent No.02 held
90% of the shares and the present appellant held 10% shares. The
present appellant recently came to know that respondent No.01, in
connivance with respondent No.02, allegedly allotted a total
number of 8,97,00,000 shares on 30.03.2022, 28.04.2022,
23.05.2022 and 23.06.2022 in favour of others, including various
sister concern companies of respondent No.01-Company named Aziz
Al Kaiser (respondent No.02) held 1,89,00,000 (Bonus shares).
Tabassum Kaiser (appellant) held 21,00,000 (Bonus shares). Star
Particle Board Mills Limited held 1,95,25,000 (ordinary shares).
Partex Furniture Industries Limited held 32,45,000 (ordinary
shares). Softavion Limited held 18,00,000 (ordinary shares), Lava
Electrodes Industries Limited held 70,00,000 (ordinary shares). 3
Partex Laminates Limited held 2,15,20,000 (ordinary shares). Star
Gypsum Board Mills Ltd held 39,00,000 (ordinary shares). CBC
Capital & Equity Management Limited held 90,00,000 (ordinary
shares). Triple Apparels Limited held 25,10,000 (ordinary
shares). Oishee Agrotech Limited held 200,000 (ordinary shares)
totalling 8,97,00,000. The appellant was absolutely in the dark
about when and how the aforementioned allotments were made by
respondent No.01-Company as the appellant never attended any
Board of Directors Meeting or shareholders meeting of the company
where the aforementioned allotment issues were discusse. The
appellant recently came to know that respondent No.02 is planning
to oust the appellant from the Board of Directors of respondent
No.01-Company and is secretly taking steps in this regard. The
appellant carried out a search within the records of the RJSC and
came to know that respondent Nos.01 and 02 along with other
respondents, in connivance with each other, have filed as many as
4 sets of Form-XV Return of Allotment dated 30.03.2022,
28.04.2022, 23.05.2022 and 23.06.2022 allotting a total
8,97,00,000 shares of the company to respondent Nos.02-11 and the
appellant. As a result of the said illegal allotment, the
shareholding percentage of the appellant within respondent No.01
has been diluted to 2.34% from 10%, which effectively means that
her shares within the company has been illegally brought under
the statutory threshold of 10% shares, which is required to take
certain actions as a minority shareholder. The appellant further
came to know that respondent No.02, in connivance with respondent
Nos.03, 04, 07, 08 and 10, purportedly held an illegal Extra-
ordinary General Meeting (EGM) of respondent No.01-Company on
01.06.2022 wherein they took decision to convert respondent
No.01-Company into a public limited company and also amended the
articles of association of the company. On perusal of the said
minutes of the EGM dated 01.06.2022 from the office of respondent 4
No.13 and it transpires that the appellant has been shown as an
attendee in the said meeting and in the Signature Box beside her
name '-Sd-' has been shown but she never attended the said EGM
dated 01.06.2022 and signed the minutes. The appellant is
apprehending that her signature has been forged by respondent
No.02 in connivance with the other respondents. In the said
purported AGM, the authorized share capital of the company has
been increased to taka 20,00,000,000/- (Taka two hundred crore)
divided into 20,00,00,000 (twenty crore) ordinary shares of taka
10 each. Thereafter, the appellant attended a meeting dated
08.08.2022 with respondent No.02 at the office of respondent
No.01 and in that meeting, the appellant vehemently raised
objection to the alleged allotment of shares in favour of
respondent Nos.02-11 and also requested respondent No.02 to
immediately dissolve the illegally constituted board with the so-
called newly appointed Directors and also requested the company
secretary of respondent No.01 to note down the objections and
dissents in the minutes of the meeting. Thereafter, the appellant
sent an email dated 14.08.2022 to the company Secretary of
respondent No.01 and respondent No.02 mentioning her complaints
and dissents whereupon the appellant received an email dated
03.11.2022 from the company Secretary with draft minutes of the
meeting dated 08.08.2022. The appellant was completely taken
aback upon checking the contents of the draft minutes of the
meeting dated 08.08.2022 as none of her objections and dissents
were recorded therein. The purported increase of shares and
allotment of the same beyond the participation and knowledge of
the appellant which is in violation of 155 of the Act, 1994, and
as such, the share register is required to be rectified.
Respondent No.01 by filing affidavit-in-opposition stated
that at the time of incorporation of respondent No.01-company, 5
the authorized share capital was taka 10,00,00,000 (ten crore),
divided into 10,00,000 (ten lac) ordinary shares of taka 100
each. The promoters of respondent No.01-company named Aziz Al
Kaiser, respondent No.02 and Aziz Al Mahmood (brother of
respondent No.02) held 25,000 and 4,500 shares respectively in
the company. In December, 2017, Aziz Al Mahmood executed Form-117
and affidavit to transfer his entire shareholding to his brother,
respondent No.02, Aziz Al Kaiser. Among those 4,500 shares, 3,000
ordinary shares were gifted to the appellant by respondent No.02
without any consideration, pursuant to which, the appellant
became the owner of 10% of the total shareholding in respondent
No.1-company. The appellant and respondent No.02 are husband and
wife having married in 1993 and have three sons of whom two are
adults and present Directors of the Board of respondent No.01-
Company, representing respondent Nos.03 and 04 companies.
Respondent Nos.03, 04, 07, 08 and 10 are sister concerns of
respondent No.01-Company belonging to the renowned Partex Star
Group of Companies, which represents the legacy of late M. A.
Hashem. The companies of this group, including respondent Nos.03,
04, 07, 08 and 10, have common shareholders who are family
members, including the appellant and respondent Nos.02. In fact,
the shares were transferred to the appellant for holding the same
on trust for the benefit of respondent No.02, and eventually for
the children of the appellant and respondent No.02. In order to
establish and run respondent No.01-Company profitably and to meet
the insufficiency of capital, both the shareholders of respondent
No.01-Company mutually decided to obtain intercompany loans from
other companies of the Partex Star Group based on the
understanding that eventually these loans would be converted into
equity. As on 30.06.2021, the total outstanding intercompany loan
of respondent No.01-Company was taka 45,96,50,000/-. With the
loans obtained as aforesaid, respondent No.01-Company established 6
its factory in Madanpur, Bandar, Narayanganj upon purchase of
around 5 acres of land which currently have approximately 700
employees. As such, considering the current state of affairs of
respondent No.01, the company owes its existence to the
intercompany loans of the group companies. In the course of
business, in order to expand respondent No.01-company's business
and pursue its objectives in a more efficient and productive
manner, both the shareholders mutually decided to raise capital
through an Initial Public Offering (IPO) of shares in the stock
market upon converting respondent No.01-Company into a public
company limited by shares. One of the preconditions for obtaining
approval from the Bangladesh Securities and Exchange Commission
(SEC) for listing is that the company seeking to make an IPO must
be a public company limited by shares which requires minimum 7
shareholders in view of the provisions of section 5 read with
section 2(1) (r) of the Companies Act, 1994. Hence, the existing
shareholders decided to convert the intercompany loans into
equity as per their initial understanding at the time of
obtaining these loans. Accordingly, following all formalities,
the abovementioned intercompany loans were converted into equity
by issuing, 50,70,000 ordinary shares to the creditor companies
which are linked to the Partex Star Group with full consent of
the appellant.
In addition to the above, a further 18,000,000 ordinary
shares were decided to be issued to four other companies that are
not linked to the said group as placement. Due to such issuance
and allocation of shares to the creditor companies, the
shareholding percentage of both the appellant and respondent
No.02 have diluted in a proportionate manner. Being a Director of
respondent No.01-company, the appellant attended a board meeting
held on 08.08.2022 where the company passed, among others, a 7
resolution for raising fund through initial public offering under
fixed price method. In the said board meeting, the other
Directors from the shareholder-companies as well as the
Independent Director were present. In fact, Amman Al Aziz,
nominee Director of a shareholder company was appointed the new
Chairman for respondent No.01-Company in the said board meeting.
The appellant did not raise any concerns or reservation on the
shares issued to these creditor companies or their presence in
the board meeting or the appointment of the Chairman from the
other shareholder company in the said board meeting, which
clearly shows that the appellant was well aware of the fact that
the company has issued shares to these companies with her full
consent and that the company has been converted into a public
limited company and for which IPO process is going on for raising
fund through capital injection but the appellant completely
suppressed these material facts in the petition. After the
decision in the board meeting dated 08.08.2022 for raising
capital of the IPO, a set of standard documents, e.g.
declarations and other forms were sent to the appellant for
signing onward submission and to take other necessary steps for
raising capital through IPO and also an email was sent by the
company Secretary by reference to the board meeting decision
dated 08.08.2022 requesting her to sign the documents within
26.10.2022 for onward submission of the draft prospectus to the
SEC but the appellant did not sign the documents for which
respondent No.01-company could not file the draft prospectus to
the BSEC resulting in delay in the raising capital through IPO.
This development had been notified to her by the company
Secretary by an email dated 30.10.2022. Due to such negligence
and mala fide action of the appellant, respondent No.1-Company
suffered loss. Accordingly, respondent No.01 Company by a letter
dated 08.11.2022 demanded compensation for the losses caused to 8
the company due to the appellant's actions but instead of taking
responsibility of her actions, the appellant sent a letter dated
15.11.2022 denying her responsibilities and rather blamed the
management and the officials of the company for no plausible
reasons. Nowhere in the said letter, she denied attending the
meeting on 08.08.2022 or dilution of her shareholding or presence
of the other Directors nominated by other shareholders or
appointment of the Chairman from a shareholder company or the
company's decision to raise capital through IPO. As such, it is
well established that the appellant was well aware of the fact
that the company has issued shares to other shareholders and new
Directors have been appointed and that the company has been
converted into a public limited company. Respondent No.01-Company
for the purpose of IPO made an application date 08.08.2022 to the
SEC praying for an exemption from complying with rule 3(2)(p) of
the Bangladesh Securities and Exchange Commission (Public Issue)
Rules, 2015 and upon assessment of the application, audit report
of respondent No.01-company as well as other relevant documents,
the SEC granted respondent No.01-company exemption. The appellant
and respondent No.02 married each other on 26.08.1993. Respondent
No.02 transferred his shares to the appellant as a token of love
to his wife without any consideration of whatever nature based on
the understanding that those shares would be held on trust for
their children. The appellant was merely enjoying the social
status deriving from being a shareholder and Director in Partex
Group Companies as wife of respondent No.02. However, after 27
years of happy marital life, for the last 2-3 years, the
appellant involved herself into an extra-marital affair with a
foreigner. Upon discovery with sufficient proof, respondent No.02
along with their sons confronted the appellant, which was the
first breakdown point in their relationship. While respondent
No.02 was putting efforts for reconciliation for the sake of 9
their children, the appellant suddenly started to claim for 50%
of the total assets of respondent No.02. As part of the
disgraceful and reprehensible plan, the appellant has filed as
many as 4(four) criminal cases against respondent No.02 based on
unfathomable allegations only to damage the social status of
respondent No.02 and the Partex Star Group resulting in mounting
pressure on respondent No.02 to make more gifts to her estranged
wife, i.e. the appellant and as such, the instant application is
liable to be dismissed.
Respondent Nos.03, 04, 07, 08 and 10 in their affidavit-in-
opposition stated that following the disputed allotments, the new
shareholders of respondent No.01-Company appointed new Directors
on the Board. The appellant as Director participated in a Board
Meeting on 08.08.2022, in which the Board took decision to raise
capital through an Initial Public Offering (IPO) upon application
for approval to Bangladesh Securities and Exchange Commission
(BSEC). The appellant never objected to this decision. Though in
an affidavit-in-reply, she has referred to an email of 14.08.2022
objecting to certain of the proceedings of the meeting of
08.08.2022, she did not object crucially to the decision to raise
capital through the IPO which means that she had no objection to
respondent No.01-Company being converted to a public Company
through allotment of shares to additional shareholders, and
accordingly, is now barred by the doctrine of waiver,
acquiescence and estoppel from objecting to the allotment of the
shares. Subsequently, the appellant refused to sign formal
documents required for making the application to BSEC for
approval. When the Chairman of the company took issue then the
appellant by a letter dated 15.11.2022 complained about the delay
in providing her with the documents, but she did not object to
the decision to raise capital through the IPO and as such, she is 10
barred by the doctrine of waiver, acquiescence and estoppel from
objecting to the allotment of the shares. The shares have been
allotted to respondent Nos.03, 04, 07, 08 and 10 through
conversion of loans provided by these companies to respondent
No.01. These loans are documented and borne by the accounts of
the said companies and banking transactions. Hence, there is no
dispute about the fact that respondent No.01 has in fact received
consideration for the shares. The appellant is a shareholder and
Director in all of these companies and there is no record of her
having objected with any of these companies about them having
subscribed to these shares. In the event, the petition is
allowed, and rectification as prayed for is effected respondent
No.01-Company would revert to a shareholding structure where
respondent No.02 would have 90% of the shares while the appellant
10% and the appellant will never be in a position to object to
the raising of capital through issue of shares. All that she will
achieve, is effecting a pre-emptive right to take up any or all
of these shares. Yet, in the instant application, she is not
offering to take up any or all of the shares allotted to the new
shareholders. It is stated that where an applicant seeks
rectification of the share register against an allotment of
shares made for good consideration at the instance of the
majority shareholders of a company upon a plea that the
applicant's pre-emptive rights have not been accorded due
respect, it is incumbent upon such applicant to offer to take up
any or all of those shares upon paying off the shareholders whose
shares are being affected by the rectification which has not been
done.
The High Court Division having heard the parties and on
perusal of the materials on record dismissed Company Matter
No.483 of 2022 by the judgment and order dated 02.03.2023. 11
Being aggrieved by and dissatisfied with the aforesaid
judgment and order dated 02.03.2023, the petitioner of the
company matter filed the Civil Petition for Leave to Appeal No.
1404 of 2023 before this Division. Accordingly, leave was granted
on 20.08.2023. Hence, the appeal.
Mr. Probir Neogi, learned Senior Advocate, Ms. Nihad Kabir,
learned Senior Advocate and Mr. Md. Asaduzzaman, learned Senior
Advocate have appeared for the appellant.
Their submissions are as follows:
i) The High Court Division has committed
illegality by passing the impugned judgment and order
without at all taking into consideration the strict
requirements of section 155 of the Act, 1994, inasmuch
as the alleged allotment of shares by the respondents
without complying with the requirements of section 155
of the Act, 1994 is absolutely unlawful, thus rendering
the purported issuance and allotment of the shares in
question ipso facto illegal and void ab initio;
ii) the High Court Division most erroneously
dismissed the company matter on the basis of some
alleged activities of the appellant, such as,
attendance at a meeting dated 08.08.2022 and subsequent
letter dated 15.11.2022 to respondent No.1, without
even taking into consideration that mere attendance in
the so-called Directors' Meeting dated 08.08.2022 of
respondent No.1 and the subsequent letter dated
15.11.2022 by the appellant, both after the fact of the
illegality having been committed by the respondents,
cannot tantamount to waiver/acquiescence of her
statutory right to get notice of board meeting and
participate in the decision of "existing directors" to
be made for the issuance of further shares under 12
section 155 of the Act, 1994, and cannot mitigate in
any way the failure to comply with the law in section
155 of the Companies Act, 1994;
iii) the High Court Division has committed
illegality in passing the impugned judgment and order
overlooking the ratios settled by this Division in the
case of Jamuna Television Ltd. and another-Vs-Government of Bangladesh
and others (reported in 65 DLR (AD) 253) to the effect, amongst
others, that- (i) there is no estoppel against statute
or there is no application of estoppel to prevent the
performance of any constitutional or statutory duty
(Para 28); (ii) the doctrine of promissory estoppel
cannot be invoked against public interest or any
stature. The public interest prevails over promissory
estoppel (Para 29); and (iii) the doctrine of
promissory estoppel cannot be invoked to carry out a
representation which is contrary to law or in the
abstract (Para 32), and therefore the impugned judgment
and order seriously suffers from illegality and
infirmity;
iv) the High Court Division has committed
illegality in not appreciating that new allotments were
done illegally and with ill-motive to harm and
prejudice the interests of the Appellant, who is a
minority shareholder in the Respondent No. 1 Company
and this is a classic case of severe oppression of a
minority shareholder of the Company and an unlawful act
by the Respondent No. 1 Company and Respondent No. 2 to
illegally bring the Company absolutely under their
control and the Appellant fears that this is an attempt
to ultimately remove the Appellant from the Respondent 13
No.1 Company and deprive her of her rights as a
shareholder and director of the said Company. The
appellant was never notified of the directors'/
shareholders' meetings where the resolutions for the
purported issue/allotment of further shares were
passed, never attended those so-called purported
meetings, which could not be held with a quorum in her
absence in any way as she was one of only two
directors/shareholders of the Respondent No.1 Company
at all material times, and as such, these meetings have
not been held in compliance with the articles of
association of the company but without taking into
consideration any of the factors mentioned above, the
High Court Division has passed the impugned judgment;
v)the High Court Division has failed to appreciate
that the purported allotment of shares in Respondent
No, 1 Company in the name of respondents No. 3 to 11
are ex-facie in violation of the provisions set forth
in the Articles of Association of the respondent No. 1
Company, which is the constituent document of a
company, and binding on the Company and its Directors;
vi) the purported allotment of shares, pursuant to
which the shareholding status of the appellant was
diluted from 10% to 2.34%, were done illegally and with
ill-motive to discriminate against and prejudice the
interests of the appellant, who is a minority
shareholder in respondent No.1-Company and is an
attempt by respondent No.1-Company and respondent No.2
to bring the Company absolutely under their control and
to ultimately remove the appellant from the Company and
by passing the impugned judgment and order of the High 14
Court Division has rubberstamped the illegal activities
of the respondents and as such, the impugned judgment
and order is bad in law and is liable to be set aside.
Per contra Mr. A.M. Amin Uddin, learned Senior Advocate,Mr.
Tanjibul Alam, learned Senior Advocate, Mr. Md. Mostafizur Rahman
Khan, learned Senior Advocate have appeared for Respondent Nos.
1-4, 7-8 and 10.
The main contention of the learned Advocates for the
respondents are as follows:
i) It is an established principle of law that the
Court can, in an appropriate case, decline to exercise
its discretionary power under Section 43 of the
Companies Act, 1994 if it finds that the applicant has
disentitled herself of the relief due to suppression of
material facts, acquiescence, waiver, delay or laches
etc. As such, the relief under section 43 of the
Companies Act, 1994 is not ex debito justitiae and equitable in
nature. Hence, even if for the sake of argument, a
technicality with respect to the compliance of section
155(1) of the Companies Act, 1994 is established,
considerations such as waiver, acquiescence, estoppel
etc. would be relevant while granting or refusing the
same as has been rightly identified by the High Court
in the present case.
In this connection the case of Mukundlal Manchanda v
Prakash Roadlines Limited (ILR 1994 Karnataka 1990; Bellesby v Rowland and
Marwood's Steamship Co. Ltd. 2 Ch. 265; Muniyamma v Arathi Line Enterprise
PV Limited has been referred.
ii) upon participating in the board meeting dated
08.08.2022 along with other directors from the newly 15
subscribed shareholder companies and by consenting to
go in the IPO event, the appellant had, in effect,
acted upon the impugned subscriptions in question. All
the facts of the case, as has been taken into
consideration in detail in the impugned judgment,
not only show acquiescence on the bringing about the
situation which she sought to have altered by means of
proceeding under section 43 of the Companies Act, 1994.
As such, the High Court Division has rightly declined
to exercise its powers under the said provision of law
as the appellant before it had already disentitled
herself of the said relief;
iii) there is no estoppel against statute or there
is no application of estoppel to prevent the
performance of a constitutional or statutory duty as
settled by this Division in the case reported in 65 DLR
(AD) 253 and as such there is no scope to rely on this
ratio by taking it out of context to assert that such
would be applicable in the present case. In any event,
the doctrine of waiver, acquiescence and estoppel in
the present case does not operate against the
application of Section 155(1) of the Companies Act,
1994, rather prevents the appellant from insisting upon
her rights granted by the said provision of law;
iv) the contentions of the appellant that her
shares were diluted from 10% to 2.34% with an ill-
motive to discriminate against and prejudice her
interests are completely baseless and misconceived, in
fact, the Appellant was well aware that the respondent
No. 1 company had taken loans from other companies of
the Partex Star Group for its survival and that such 16
loans would converted into equity eventually; thus the
dilution complained of is the direct result of the
conversion of the said loans into equity;
v) the appellant is asserting her preemptive
rights under section 155(1) of the Companies Act, 1994,
till date, she has never offered to take up of the
shares allotted to the proportion of her shareholding;
which makes it clear that this appeal has been filed
with the sole motive to halt the progress of the
respondent No. 1 company in raising capital through
IPO, for collateral purpose of holding the respondent
No. 1;
vi)the appellant concealed material facts relating
to her participation in the meeting dated 08.08.2022
along with other shareholders whose subscription she is
challenging, her acting upon the impugned subscription
in question, her consent for the respondent No. 1
company to go to IPO knowing fully well that the
disputed subscriptions actually took place to
facilitate the company going into IPO, the respondent
No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's
claims by shifting the burden on the management of the
company without denying her prior given consent for IPO
or raising any objection to the allotted shares at any
point in time prior to filing the application; hence,
the appellant is not entitled to get any relief from
this Court, as the relief under section 43 of the
Companies Act, 1994 is equitable in nature;
vii) the appellant had the right to participate in
the disputed issuance of shares only to the proportion 17
of her shareholding, i.e., 10% by paying consideration
at face value, and that although the appellant is
asserting her preemptive right to be offered the
allotted shares she has till date, never offered to
take up any of the shares, and the present Appeal is
her attempt to belie the respondent No.l's attempt to
raise its capital, for collateral purposes and
existence of such collateral purposes has been
established to the satisfaction of the High Court
Division and no evidence has been adduced by the
appellant in the instant proceeding to rebut such
conclusion;
viii) it is not disputed that immediately prior to
the first disputed allotments, the appellant held only
10% of the issued shares of the respondent No. 1
Company, with the respondent No. 2, as the only other
shareholder, leaving 90% of the shares, the legal
significance of which is two-fold, being first, the
appellant, as a minority, was lever in a position to
resist a decision for further allotment of shares, or
resist conversion of the company to a public company,
which acts, in themselves, are not unlawful, and
secondly, all that would have been attained had the
required formalities been adhered to, which she does
not admit, is that she would have a pre-emptive right
to take up 10% of the allotted shares upon payment of
subscription.
We have considered the submissions of the learned Advocates
appearing for the parties concerned, perused the impugned
judgment and order of the High Court Division and other materials
as placed before us on record. 18
In the instant appeal, the appellant has tried to assail the
impugned judgment mainly on the ground that:
(i) the appellant was not aware of the allotment of
shares to the respondent Nos. 3-11;
(ii) the respondent No. 2 is planning to oust the
appellant from the management of the respondent No 1 company
and is secretly taking steps in this regard;
(iii) the appellant was not provided with the minutes
of the meetings of the respondent No. 1 company;
(iv) the shares allotted to the respondent Nos.3-11
were not first offered to the appellant in violation of the
section 155 of the Companies Act, 1994;
(v) the appellant was never aware of any of the
meetings for issuance of further shares or increase of
shares or allotment of shares to the respondent Nos. 3-11.
Based on the above arguments and allegations, the petitioner
asserts that the names of the respondent Nos. 3-11 have been
entered into the register of members of the respondent No.1
Company illegally and in violations of the provisions of the
Companies Act, 1994, as such, according to the appellant,
the register of members of the respondent No. 1 Company is
required to be rectified upon deleting/omitting their names
from the register of members.
Upon perusal of the impugned judgment and order, it
transpires that the High Court Division addressed and decided all
the above issues having considered materials on record as well
the relevant law and principle law enunciated in different cases.
The High Court Division having considered the provision of
section 155 of the Companies Act, 1994 coupled with the facts and
circumstances of the present case has held that:-
“But in the instant case it is already found that
transfer of shares has been affected within knowledge 19
of the petitioner and with her concurrence and hence,
155 (2) of the Companies Act, 1994 will be applicable
and above quoted decisions (34 BLD, 91, in the case of
Md. Shirajul Haque vs Apollo Ispat complex Limited) has no relevance
here.”
It is fairly established that the relief under
section 43 of the Companies Act, 1994 is not ex debito
justitiae, rather the said relief is equitable in
character and as the petitioner did not disclose all
the materials facts, she is not entitled to get relief
in the instant matter.”
We have no hesitation to hold that the above findings of the
High Court Division are based on sound principle of law. Section
155 of the Companies Act, 1994 runs as follows:
“155. Further Issue of capital.—(1) Where the directors decided to
increase the subscribed capital of the company by issue of further shares within
the limit of the authorised capital—
(a) such further shares shall be offered to the members in proportion, as
nearly as circumstances admit, to the capital paid up on the existing
share held by such member, irrespective of class, at the date of the
offer;
(b) such offer shall be made by notice specifying the number of shard
offered and specifying the time limit, not being less than fifteen days
from the date of the offer, within which the offer if not accepted, will
be deemed to have been declined;
(c) after the expiry of the time specified in the notice aforesaid, or on
receipt of earlier intimation from the members to whom such notice
is given that he declines to accept the shares offered, the directors
may dispose of the same in such manner as they may think most
beneficial to the company.
(2) Notwithstanding anything contained in sub-section (1), the further shares
aforesaid may be offered to any person whether or not those person include its
person referred to in clause (a) of that sub-section in manner whatsoever.”
If we read meticulously, the above provision of law then it
will be clear that in view of the provision of subsection (2), 20
the provision of subsection (1) of section 155 of the Companies
Act cannot be said Sine Qua Non.
It is an established principle of law that the Court can, in
an appropriate case, decline to exercise its discretionary power
under Section 43 of the Companies Act, 1994 if it finds that the
appellant before it has disentitled herself of the relief for any
reason like suppression of material facts, acquiescence, waiver,
delay or laches etc. The section in the Indian Companies Act
corresponding to section 43 of the Companies Act, 1994 is section
155. In the case Mukundlal Manchanda v Prakash Roadlines Limited (ILR 1994
Karnataka 1990), the High Court of Karnataka, India on a very
identical scenario held in paragraph 16, "A plain reading of the provisions
reproduced above shows that the same vests the Court with the power to direct rectification, the
exercise of which power is discretionary with the Court as is apparent from the word 'may' used
in this Section. The Court can in an appropriate case decline to exercise its powers under
Section 155 if it finds that the petitioner before it has disentitled himself of the said relief for any
reason like suppression of material facts, acquiescence, delay and laches etc. Relief envisaged by
Section 155 is equitable in nature, and all such considerations as are relevant to the grant or
refusal of any such relief would be attracted to proceedings under the said provision.”
In the case Bellesby v Rowland and Marwood's Steamship Co. Ltd. 2 Ch. 265
(quoted in paragraph No. 18 of the Mukundlal Manchanda judgment
referred above), it was held, "In considering an application for rectification the
Court has always had regard to the lapse of time and to any facts and circumstances indicating
acquiescence in the existing state of things by those on whose behalf the application is made to
disturb it.". In another case Muniyamma v Arathi Line Enterprise PV Limited
(quoted in paragraph No. 19 of the Mukundlal Manchanda judgment
referred above), it was held, "...Whether in a particular case relief should be
granted or not, because the jurisdiction is discretionary as the word used is 'may' in Section 155
of the Act would depend upon the facts and circumstances of the case but the exercise of
jurisdiction cannot be refused on the ground that it involves complicated questions of law and
facts Of course, the propriety o f the petitioners and their conduct having a bearing on the 21
subject matter o f the petition would be relevant to the decision as to whether the discretion
should or should not be exercised" (underlines added).
As such, from perusal of the above case laws, it is clear
that the relief under section 43 of the Companies Act, 1994 is
not ex debito justitiae and that relief under section 43 is equitable in
character, and that considerations such as waiver, acquiescence,
estoppel etc. would be relevant while granting or refusing the
same. By participating in the board meeting dated 08.08.2022
along with other directors from the newly subscribed shareholder
companies and by consenting to go in the IPO event, the appellant
has, in effect, acted upon the impugned subscriptions in
question. All the above background facts not only show
acquiescence on the part of the appellant, but also her active
participation in bringing about the situation which now she seeks
to have altered by means of this proceeding under section 43 of
the Companies Act, 1994. As such, the appellant is now barred by
the principle of estoppel from seeking relief from this Court.
Moreover, the relief under section 43 is of equitable nature
and it is an established principle of law that "he who comes to equity,
must come in clean hands". In the instant case, the appellant concealed
material facts relating to her participation in the meeting dated
08.08.2022 along with other shareholders whose subscription she
is challenging, her acting upon the impugned subscription in
question, her consent for the respondent No. 1 company to go to
IPO knowing fully well that the disputed subscriptions actually
took place to facilitate the company going into IPO, the
respondent No. 1 company's claim for compensation for her failure
to sign documents and her response to the company's claims by
shifting the burden on the management of the company without
denying her prior given consent for IPO or raising any objection
to the allotted shares at any point in time prior to filing the 22
application. All these facts manifestly show that she has
concealed material facts and come before this Court without clean
hands, as such, the appellant is not entitled to any relief from
this Court.
The position relating to the equitable nature of remedy
under section 43 of the Companies Act, 1994 is clear. It is also
an established principle of law that a person may waive a right
either expressly or by necessary implication and that such person
may in a given case disentitled himself from obtaining an
equitable relief particularly when he allows a thing to come to
an irreversible situation and that is a person, through his
conduct, has waived his right to an equitable remedy, such
conduct precludes and operates as estoppel against him with
respect to asserting the right (Babulal Badriprasad Varma v Surat Municipal
Corporation and ors. AIR 2008 SC 2919). As such, the argument made by the
learned Advocate of the appellant in the course of hearing that
her right could not have been waived or that acquiescence could
not have taken place is not correct.
The judgment and order of the this Division in the case
Jamuna Television Ltd. v Bangladesh (65 DLR (AD) 253) was passed against the
judgment and order dated 20.05.2010 passed by the High Court
Division in Writ Petition No.8100 of 2009. The appellant relied
on paragraph No.28 of the judgment, which states, "The doctrine of
promissory estoppel cannot be invoked against public interest or any statute."
It is our considered view that the principles laid down in
this judgment are applicable in public law matters, whereas the
instant case is a company matter, hence, a private law dispute.
The case law addresses the principle of promissory estoppel
against statute; not waiver, acquiescence and estoppel. The
concept of the principles ‘waiver, acquiescence and estoppel’ and
‘promissory estoppel’ is vastly distinct in law. As per the 23
Black's Law Dictionary, ‘acquiescence’ refers to ‘a person's
tactic or passive acceptance; implied consent to an act’;
‘waiver’ refers to 'the voluntary relinquishment or abandonment-
express or implied-of a legal right or advantage' and ‘Estoppel’
refers to ‘a bar that prevents one from asserting a claim or
right that contradicts what one has said or done before or what
has been legally established as true’. On the other hand, as per
the definition given in the Black’s Law Dictionary, ‘Promissory
estoppel’ refers to ‘the principle that a promise made without
consideration may nonetheless be enforced to prevent injustice if
the promisor should have reasonably expected the promisee to rely
on the promise and if the promisee did actually rely on the
promise to his or her detriment.’
In the instant case, it is not the case of promissory
estoppel. All the background facts and conducts of the appellant
not only show acquiescence and waiver on part of the appellant,
but also her active participation in bringing about the situation
which she now seeks to have altered by means of this proceeding.
As such, it is argued by the respondent No. 1 that the appellant
has, in effect, waived and acquiesced to the issuance and
allotment of shares by her active participation in the board
meeting and other subsequent conducts and hence, now estopped
from challenging the same.
With regard to the issue that the appellant’s shares in the
Company has been diluted from 10% to 2.34%, the High Court
Division observed that-
“..........but fact remains that when shares have
been increased and allotted she also got bonus shares
proportionately along with respondent No.2, but her
percentage of shares diluted due to allotment of shares
to respondent Nos. 3-10 and, hence, her allegation of 24
mala fide in dilution of her shares is also not
sustainable.”
We have no hesitation to concur with the above findings of
the High Court Division.
Having considered and discussed as above, we are of the
opinion that the judgment and order passed by the High Court
Division does not suffer from any illegality or infirmity.
Accordingly, the appeal is dismissed.
There will be no order as to costs.
J.
J.
J.
B.S./B.R./*Words-6,843*
|
IN THE SUPREME COURT OF BANGLADESH Appellate Division
PRESENT
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique,
Mr. Justice Md. Shahinur Islam,
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2769 OF 2023
(From the judgment and order dated the 3rd day of August, 2023 passed by the
High Court Division in Criminal Appeal No.248 of 2023).
Debdulal Basu : ..............Petitioner
-Versus-
The State, represented by the
Deputy Commissioner Dhaka and
another
: ..............Respondents
For the Petitioner
: Mr. Dewan Abdul Naser, Advocate,
instructed by Mr. Md. Shafiqul Islam
Chowdhury, Advocate-on-Record
For Respondent No.1 : Mr. A.M. Amin Uddin, Attorney
General with Mr. Sayeem Mohammad
Murad, Assistant Attorney General
appeared with the leave of the Court.
For Respondent No.2 : Mr. Sukumar Kumar Biswas, Advocate
with Mr. Sree Probir Kumar Ghosh,
Advocate, instructed by Mr. Haridas
Paul, Advocate-on-Record
Date of hearing and judgment : The 3rd day of June, 2024
JUDGMENT M. Enayetur Rahim, J: This criminal petition for leave to
appeal is directed against the judgement and order dated
03.08.2023 passed by a Division Bench of the High Court
Division in Criminal Appeal No.248 of 2023 dismissing the
appeal.
The facts, relevant for disposal of the instant criminal
petition for leave to appeal, are that, present victim,
respondent No. 2, Shila Halder being complainant filed a 2
complaint before the Nari-O-Shishu Nirjatan Daman Tribunal
No.8, Dhaka, against the present accused-appellant-petitioner
under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000 (amended in 2003) alleging inter-alia that the accused-
petitioner on 23.12.2017 upon showing respect to Hindu
religious idol and claiming married her started conjugal life
with the complainant in a rented house at Mirpur. Thereafter,
while she asked the accused-petitioner to take her into his
village home, the accused-petitioner refused to do so. The
complainant then came to know that the accused-petitioner is
a married person having another wife and child. On 05.01.2022
at about 10:00 p.m. the accused-petitioner lastly caused
physical relation with the complainant. The complainant to
that end went to the Mirpur Model Police Station for filing a
case against him, but the police refused to register the case
and advised her to file the case before the Court, then she
was compelled to file the petition of complaint being No. 118
of 2022 before the Nari-O-Shishu Nirjatan Daman Tribunal No.
8, Dhaka, on 28.07.2022.
The learned Judge of the Tribunal upon recording the
statement of the victim-complainant had directed the Police
Bureau of Investigation (PBI), Metro. (North), Dhaka to
inquire into the matter and to submit a report thereto.
Upon inquiry, the PBI submitted a detail report on
13.11.2022. Upon receiving the said inquiry report the
learned Judge of the Tribunal took cognizance of the offence
against the accused-petitioner under section 9(1)of the Nari-
O-Shishu Nirjatan Daman Ain, 2000 (Amended in 2003).
Then, the accused-petitioner filed an application for
anticipatory bail before the High Court Division and the High 3
Court Division enlarged him on anticipatory bail and after
obtaining bail the accused-petitioner filed an application
under section 265(C)of the Code of Criminal Procedure before
the Tribunal for his discharge from the case. However, the
Tribunal rejecting the said application vide its order dated
02.01.2023 framed charge against him under section 9(1) of
the Nari-O-Shishu Nirjatan Daman Ain, 2000.
Being aggrieved by the said refusal order, the accused-
petitioner filed Criminal Appeal No.248 of 2023 before the
High Court Division, which was admitted on 31.01.2023 and
after hearing the Appeal the High Court Division dismissed
the Appeal by the impugned judgment and order. Hence, the
accused has filed the instant criminal petition for leave to
appeal.
Mr. Dewan Abdul Naser, learned Advocate appearing for
the accused-petitioner submits that the inquiry report
prepared by the inquiry officer though it was mentioned that
prima facie case was found against the accused-petitioner
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2000, but in fact nothing was found on inquiry to the effect
that the accused petitioner raped her within the meaning of
section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000(as
amended in 2003).
Learned Advocate also submits that the High Court
Division failed to consider that after examining the
complainant doctor prepared a report wherein the doctor
opined that “considering physical examination findings and
microbiological report, I am of the opinion that the victim
named ‘Shila Halder’ has no sign of forceful sexual
intercourse found on her body”, and as such judgment and 4
order passed by the High court Division is liable to be set
aside. He further submits that the High Court Division failed
to consider that the sexual intercourse with the consent of
the adult woman does not constitute offence of rape under
section 9(1) of the Nari-O-Shishu Nirjatan Damon Ain, 2000
(as amended 2003).
Learned Advocate finally submits that the Nari-O-Shishu
Nirajtan Tribunal illegally took cognizance of the offence on
the basis of inquiry report submitted by PBI which is not
permitted as per section 27(1 Ka) of the Nari-O-Shishu
Nirjatan Daman Ain, and, as such the judgment and order
passed by the High Court Division is liable to be set aside.
Mr. A.M. Amin Uddin, learned Attorney General appearing
for respondent No. 1 made submissions in support of the
impugned judgment and order of the High Court Division.
Mr. Sukumar Biswas, learned Advocate appearing for the
complainant-respondent No. 2 also made submissions supporting
the impugned judgment and order of the High Court Division.
He further added that since the medical examination was held
long after the date of occurrence and, as such, recent sign
of rape may not be there, but the medical report itself shows
that the hymen of the victim was found ruptured and there
have been multiple old tears present and, therefore, those
materials on record shows that the accused petitioner upon
giving false assurance as of marrying the victim, has
committed rape on her for several times and as such, in the
medical report the above material symptoms were detected.
Learned Advocate for the complainant-respondent further
argued that in the case of rape, only relying upon a part of
medical examination report, even without taking other 5
material evidence on record, relying on the defence plea
cannot claim to be discharged.
Learned Advocate thus seeking dismissal of the leave
petition submits that since charge has already been framed
upon finding prima-facie materials and, as such, at this stage
only upon relying on the defence plea a case of committing
rape under section 9(1) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 (Amended in 2003) cannot be brushed away and the
order of charge cannot be set aside without taking evidence,
at the trial, as per the settled decision of our Apex Court.
We have considered the submissions of the learned
Advocates appearing for the respective parties, perused the
petition of complaint, the impugned judgement, relevant laws
and other materials as placed before us.
In the instant case it is admitted position that the
learned Judge of the Tribunal having found prima facie case
against the accused petitioner framed charge against him
under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain,
2003 having considered the facts and circumstances of the
case and materials on record. We find substance in the
submission of the learned Advocate for the complainant-
respondent that at this stage there is no scope to discharge
the accused-petitioner from the charge brought against him
relying on any defence plea or materials, if any.
The learned Advocate for the petitioner having referred
to the words ""mšÍó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev Ab¨ †Kvb
e¨w³‡K wb‡`©k cÖ`vb Kwi‡eb Ges..................Ó as contemplated in section 27(1)
(Ka) has tried to convince us that Police Bureau of
Investigation (PBI) will not come within the meaning of "Ab¨ †Kvb
e¨w³Õ and PBI being one of the unit of Police is not permitted 6
to make any inquiry under the Nari-O-Shishu Nirjatan Daman
Ain, 2000 and thus the inquiry on the allegation of the
present case by PBI is without jurisdiction and illegal, and
on the basis of such inquiry report proceeding of the present
case is also illegal and without jurisdiction. In support of
his contention, he relied on the case of Mohammad Khorshed
Alam alias Md. Khorshed Alam vs The state and another,17
SCOB(2023)AD 61, wherein it has been held that:
“Having considered and discussed above, we are of the view that the Tribunal
did not commit any illegality in entertaining the complaint filed by respondent
No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the
Tribunal is satisfied as to the filing of the complaint he can direct the
Magistrate or any other person to make an inquiry with regard to the
allegation. The expression ‘Ab¨ †Kvb e¨w³’ (any other person) does not
include any police officer but, it includes any public officer or any private
individual or any other responsible person of the locality upon whom the
Tribunal may have confidence to conduct the inquiry in respect of the
complaint logged before it.
In the instant case the learned Judge of the Tribunal acted illegally in directing
the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect
of the complaint and, thereafter, taking cognizance on the basis of such inquiry
report has vitiated the entire proceeding.” (Underlines supplied).
To address the above issue let us examine section 27 of
the Nari-O-Shishu Nirjatan Daman Ain, 2000, which runs as
follows:
Ò27| UªvBey¨bv‡ji GLwZqvi|-(1) mve-B݇c±i c`gh©v`vi wb‡¤œ b‡nb Ggb †Kvb cywjk Kg©KZ©v ev
GZ`y‡Ï‡k¨ miKv‡ii wbKU nB‡Z mvaviY ev we‡kl Av‡`k Øviv ÿgZvcÖvß †Kvb e¨w³i wjwLZ wi‡cvU©
e¨wZ‡i‡K †Kvb UªvBey¨bvj †Kvb Aciva wePviv_© MÖnY Kwi‡eb bv|
(1K) †Kvb Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© njdbvgv mnKv‡i UªvBey¨bv‡ji wbKU
Awf‡hvM `vwLj Kwi‡j UªvBey¨bvj Awf‡hvMKvix‡K cixÿv Kwiqv- 7
(K) mš‘ó nB‡j Awf‡hvMwU AbymÜv‡bi (inquiry) Rb¨ †Kvb g¨vwR‡÷ªU wKsev ‡Kvb e¨w³‡K
wb‡`©k cÖ`vb Kwi‡eb Ges AbymÜv‡bi Rb¨ wb‡`©kcÖvß e¨w³ Awf‡hvMwU AbymÜvb Kwiqv mZ Kvh©
w`e‡mi g‡a¨ UªvBey¨bv‡ji wbKU wi‡cvU© cÖ`vb Kwi‡eb;
(L) mš‘ ó bv nB‡j Awf‡hvMwU mivmwi bvKP Kwi‡eb|
(1L) Dc-aviv (1K) Gi Aaxb wi‡cvU© cÖvwßi ci †Kvb UªvBey¨bvj hw` GB g‡g© mš‘ó nq †h,
(K) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb Ges Awf‡hvM mg_©‡b cÖv_wgK
mvÿ¨ cÖgvY Av‡Q †mB †ÿ‡Î UªvBey¨bvj D³ wi‡cvU© I Awf‡hv‡Mi wfwˇZ AcivawU wePviv_© MÖnY
Kwi‡eb;
(L) Awf‡hvMKvix Dc-aviv (1) Gi Aaxb †Kvb cywjk Kg©KZ©v‡K ev ÿgZvcÖvß e¨w³‡K †Kvb
Aciv‡ai Awf‡hvM MÖnY Kwievi Rb¨ Aby‡iva Kwiqv e¨_© nBqv‡Qb g‡g© cÖgvY cvIqv hvq bvB
wKsev Awf‡hv‡Mi mg_©‡b †Kvb cÖv_wgK mvÿ¨ cÖgvY cvIqv hvq bvB †mB †ÿ‡Î UªvBey¨bvj
Awf‡hvMwU bvKP Kwi‡eb;
(1M) Dc-aviv (1) Ges (1K) Gi Aaxb cÖvß wi‡cvU© †Kvb e¨w³i weiæ‡× Aciva msNU‡bi Awf‡hvM ev
Zrm¤ú‡K© Kvh©µg MÖn‡Yi mycvwik bv _vKv m‡Ë¡I UªvBey¨bvj, h_vh_ Ges b¨vqwePv‡ii ¯^v‡_© cÖ‡qvRbxq g‡b
Kwi‡j, KviY D‡jøLc~e©K D³ e¨w³i e¨vcv‡i mswkøó Aciva wePviv_© MÖnY Kwi‡Z cvwi‡eb|Ó
On a careful examination of section 27(1 ka) coupled with
sub-section (ka) it becomes crystal clear that on receipt of
a complaint supported by an affidavit if the Tribunal is
satisfied upon examining the complainant that after being
refused by the concerned police officer or the authorized
person he/she directly came to the Tribunal in that event an
order for holding inquiry on the complaint can be made.
In the case in hand, the complainant filed the petition of
complaint before the Tribunal supported by an affidavit
stating that statements made in the complaint is true. And in
the complaint it was asserted that she went to the police
station but the police refused to accept her complaint and
the concerned Tribunal being satisfied about the same, upon 8
examining the complainant, directed the PBI to hold an
inquiry into the allegation.
The intention of Section 27 (1 ka) is that before filing
of the complaint before the Tribunal, the complaint should
approach to the concerned police station first, and if he/she
is refused in that event he/she can file the complaint before
the Tribunal with an affidavit in regard to his/her refusal
by the police. This provision of law will come into operation
when the concerned police officer of a particular Police
Station refused to accept or lodge the complainant.
In the earlier case as cited by the learned Advocate for
the accused-petitioner, the Tribunal directed for holding
inquiry to the Officer-in-Charge of the same Police Station,
which refused to lodge the FIR. But in the instant case
Tribunal directed PBI to hold an enquiry on the allegation.
PBI is an independent investigating agency/unit of police.
Officer-in-Charge of a Police Station has no authority on the
PBI inquiry/investigation process. PBI acts on the basis of
PBI Regulations 2016 (cywjk ey¨‡iv Ae Bb‡fw÷‡Mkb wewagvjv, 2016)| In Bidhi 2(9)
it has been stipulated that " wcweAvB m`m¨Õ A_© wcweAvB G wb‡qvwRZ ‡Kvb cywjk m`m¨|'
Bidhi 4 clearly speaks that "wcweAvB Gi †nW‡Kvqv©Uv©m XvKvq _vwK‡e|Õ
So, PBI has an independent and separate identity.
It is true that the word ‘Ab¨ †Kvb e¨w³’ has not been defined
in the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, we can
take aid of General Clauses Act 1897, where the word person
(e¨w³) has been defined as under:
Person-“person” shall include any company or association or body
of individuals, whether incorporated or not: (underline supplied) 9
If we consider the definition of ‘person’ (e¨w³) as
defined in the General Clauses Act coupled with the fact that
the PBI is an independent body/organization/unit of police,
which acts by its own Regulations thus, we have no hesitation
to hold that PBI, is an independent body i.e. body of
individuals and it will come within the meaning/definition of
‘Ab¨ †Kvb e¨w³’ as contemplated in section 27(Ka) of the Nari-O-
Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by
the PBI in this particular case is within the ambit of the
law, and there is no scope to say that PBI or any other
independent law enforcing agency is not authorized to hold
any inquiry or investigation on the allegations made under
the Nari-O-Shishu Nirjatan Daman Ain, 2000. Thus, the
submission made by the learned Advocate for the petitioner
has no leg to stand.
Further, we have to understand the intention of the
legislature. If we read section 27(1) and 1(Ka) of the Ain
together, then it will be clear that intention of the
legislature is that the police officer who refused to accept
the complaint/FIR he should not be directed again to make
inquire/investigation for fair and impartial
inquiry/investigation and the enquiry or investigation should
be done by any other person (Ab¨ †Kvb e¨w³) other than the said
police officer or any officer of the same Police Station.
This provision has been made for the interest of the
complainant/victim, and an accused or offender is not
entitled to get benefit of it. 10
The facts of the cited case is quite distinguishable
from the facts of the present case and it will not help the
present accused petitioner in anyway.
Having discussed and considered as above, the instant
criminal petition for leave to appeal is dismissed.
J.
J.
J.
B.S./B.R./*Words-2,512*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CONTEMPT PETITION NOS. 29-33 OF 2022
(From the Judgment and order dated 07.04.2022 passed
by this Division in Civil Review Petition Nos. 282, 281,
278, 277 and 280 of 2019 respectively)
Md. Nurunnabi Bhuiyan ....Contempt-petitioner
(In Cont. P. No. 29 of 2022)
Md. Bazlur Rashid Akhonda ....Contempt-petitioner
(In Cont. P. No. 30 of 2022)
Iqbal Kabir Chowdhury ....Contempt-petitioner
(In Cont. P. No. 31 of 2022)
Md. Giasuddin ....Contempt-petitioner
(In Cont. P. No. 32 of 2022)
Monir Ahmed ....Contempt-petitioner
(In Cont. P. No. 33 of 2022)
-Versus-
Md. Abdullah Al Masud
Chowdhury, Secretary,
Security Services Division,
Ministry of Home Affairs,
Bangladesh Secretariat,
Ramna, Dhaka and another
....Contemnor-Respondents
(In all the cases)
For the Petitioners
(in all the cases)
: Mr. Mo hammad Ibrahim Khalil,
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate-on-record
For Respondents
(in all the cases)
: Mr. Md. Shafiqul Islam, Advocate
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-record
Date of Judgment : 04.02.2024
J U D G M E N T
Md. Ashfaqul Islam , J: All these applications are
directed for drawing up proceeding for contempt of
Court against the Contemnor -respondents for
deliberate violation of , and disregard to , the 2
Judgment and order dated 07.04.2022 passed by th is
Division in Civil Review Petition Nos. 277 -278 and
280-282 of 2019.
Upon hearing, this Division directed the
contemnor-respondent Nos. 1 and 2 , Md. Abdullah Al
Masud Chowdhury, Secretary, Security Services
Division, Ministry of Home Affairs and Brigadi er
General ASM Anisul Hauqe, Inspector General of
Prison, Directorate of Priso n to appear in person
before this Division on 20.11.2023 to explain their
conducts on the issue.
Pursuant to that order the contemnor -respondents
appeared before this Division b y filing affidavit-in-
compliance but it appeared from that the order of
this court has been implemented partly. Accordingly,
we direct ed the contemnor -respondents to implement
that order completely.
By submitting another affidavit-in-compliance
today it is contended that as per judgment and order
dated 07.04.2022 passed by this Division in Civil
Review Petition No. 282 of 2019 and subsequent order 3
of ours , they have implemented the same in its
entirety. Delay occurred in respect of compliance of
the judgment and order is bonafide and unintentional
for which they beg unconditional apology and praying
exoneration from the charge of the contempt of court
leveled against them.
Let us first digress how the law of land empowers
the Supreme Court to punish somebody on the charge of
contempt of court.
In aid of all its powers given under the
Constitution, in order to ensure the authoritative
status of the Supreme Court, the Constitution
provides in article 112 that all authorities,
executive and judicial, in the Rep ublic shall act in
aid of the Supreme Court.
It is generally accepted that for the sake of
maintaining proper order and to ensure compliance of
the directions given in judgments, the courts have an
inherent power to punish any person or authority for
contempt. 4
The power of contempt of Court is coextensive
between the two Divisions of the Supreme Court which
can be exercise d equally under Article 108 of the
Constitution. Article 108 clearly clarifies the above
constitutional mandate.
Notably, Appellate Division has also power under
Article 103(2) (C) of the Constitution to impose
punishment on a person for contempt of that division.
Therefore, general power for both the Division s has
been engrain ed in Article 108 of the Constitution .
There is no ambiguity or l ack of clarity on that
score.
In the case of Bangladesh Environmental Lawyers
Association (BELA) Vs. Bangladesh, 2002 22 BLD 534,
A.B.M. Khairul Haque, J., as his Lordship was then,
observed as follows:
"The oath of office of the Judges of the Supreme
Court requires that they will preserve, protect and
defend the Constitution and the laws of Bangladesh.
These are not mere ornamental empty words. These
glorifying words of oath eulogizes the supremacy of 5
judiciary. It is by now well settled that if the
Government or its functionaries fails to act and
perform its duties cast upon them by the laws of this
Republic, the High Court Division of the Supreme
Court, shall not remain a silent spectator to the
inertness on the part of the Government or its
officials, rather, in order to vindicate its oath of
office can issue, in its discretion, necessary orders
and directions, under Article 102 of the Constitution
to carry out the intents and purposes of any law to
its letter, in the interest of the people of
Bangladesh because all powers in the Republic belong
to the people, and their exercise on behalf of the
people shall be effected only under, and by the
authority of the Constitution."
In a recently passed decision in the case of
Mohammad Harun -Or-Rashid vs. Syed Jah angir Alam
LEX/BDAD/0094/2023 while convicting and punishing the
current Mayor of Dinajpur Pourashava this Division
came down heavily on the issue holding that t he
trivia and tradition of this Court are well 6
identified and preserved. One should not forget that
the hands of the Courts are long enough to catch hold
of wrong doers wherever they hide. This is an
unfettered and inbuilt right attached to this Court.
The Supreme Court is one of the pillars of the
State machinery and afforded the dignity and respec t
by everyone, even the high and mighty: and rightly
so. Daily thousands of litigants throng before the
Courts in search of justice. They believe in and
respect the justice delivery system. Without such
reverence the judgments delivered would be
ineffective and the rule of law would be rendered
nugatory. Citizens of the country look to the
judiciary for adjudication of their legal disputes
with their neighbours as well as for enforcement of
their rights enshrined in the Constitution and other
laws of the la nd. However, if the judiciary is to
perform its duties and functions effectively, to live
up to the expectations of the citizens of the country
and remain true to the spirit with which they are
sacredly entrusted, the dignity and authority of the 7
Courts have to be respected and protected by all and
at all costs.
The contempt with which we are concerned in the
instant case relates to violation and disobedience of
the Court ’s order , which in essence means lowering
the dignity of the Court or making comments
calculated to undermine public confidence in the
judges and the justice delivery system.
It indeed baffles us when we see that the
contemnor-respondents after receiving the decision of
the highest judiciary of the country slept over the
matter without implementing the same . They show ed
very much reluctance to comply with the order of this
Court u ntil initiating contempt proceeding against
them. This trend can never be accepted. However, they
finally implemented the decision of this Division
belatedly and beg unconditional apology and pray ed
exoneration from the charge of the contempt of court.
In the light of the above observations, all these
petitions are disposed of. The contemnors-respondents
are hereby exonerated from the charge of contempt of 8
court. However, we strongly caution that in future
not only the present contemnor -respondents but also
all the authorities, executive and judicial, in the
Republic shall be careful to ensure the compliance of
the judgment and order of both the Division s of the
Supreme Court in totality.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
-1-
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CRIMINAL PETITION FOR LEAVE TO APPEAL
NOS.1059-1061 OF 2024
(From the orders dated 30.05.2024 passed by the High Court Division in Criminal
Revision Nos.3178,3180 & 3179 of 2024 respectively)
Pubali Bank Limited ......................Petitioner
(In all the cases)
-Versus-
Chowdhury Shamim Hamid and another .................Respondents
(In all the cases)
For the petitioner
(In all the cases)
: Mr. A. M. Amin Uddin, senior Advocate with
Mr. M. Ashraf Ali, Advocate instructed by Ms.
Madhumalati Chowdhury Barua, Advocate-on-
Record.
For the respondent
No. 1
(In all the cases)
: Mr. M. Sayed Ahmed, senior Advocate with
Zulhas Uddin Ahmed, Advocate instructed by
Mr. Md. Quamrul Islam, Advocate-on-Record.
For the respondent
No.2
(In all the cases)
: Not represented.
Date of hearing and
judgment
: The 11th day of June, 2024
JUDGMENT
Obaidul Hassan,C.J. All these Criminal Petitions for Leave to
Appeal are being disposed of by this common judgment as all the
cases are between the same parties and involve common questions of
law.
All these Criminal Petitions for Leave to Appeal are directed at
the instance of the petitioner-respondent No.1 in each case against
the orders dated 30.05.2024 passed by the High Court Division in
Criminal Revision Nos.3178, 3180 and 3179 of 2024 respectively
enlarging him on bail in each case for a period of one month to enable
him to deposit 50% of the total amount of cheque in preferring appeal
against the sentence of the trial Court.
-2-
The facts necessary for disposal of these criminal petitions are
that the petitioner, Pubali Bank Limited, Dorgagate Branch, Sylhet in
each case filed cases being Kotwali C.R. Case Nos.844 of 2021, 241 of
2022 and 963 of 2021 before the Additional Chief Metropolitan
Magistrate Court, Sylhet against the convict-respondent No.1 under
Section 138 of the Negotiable Instruments Act, 1881 (for short
Negotiable Instruments Act)contending, inter alia, that the respondent
No.1 took total loan amounting Tk.18,00,00,000/-(eighteen crore
only) from the complainant bank. As a part of payment of the said
loan the respondent No.1 issued three separate cheques in each case
amounting Tk.60,48,231/ (sixty lac forty eight thousand two hundred
thirty one only) each on 19.07.2021, 20.07.2021 and 20.03.2021
respectively. Those cheques were presented before the bank on
19.07.2021, 12.12.2021 and 31.08.2021 respectively for encashment, but
the same was dishonoured on the said dates in each case due to
insufficient of fund. Thereafter, the complainant sent legal notice in
each case to the respondent No.1 to make payment of the amount of
cheque failing of which the complainant filed three separate cases
under Section 138 of the Negotiable Instruments Act, 1881 against the
respondent No.1. Subsequently those cases were transferred to the
Metropolitan Sessions Judge, Sylhet and renumbered as Sessions
Case Nos.573, 572 and 574 of 2023 respectively which were
eventually sent to the Joint Metropolitan Sessions Judge, 1st Court,
Sylhet for holding trial. The trial in each case was held in absentia of
-3-
the respondent No.1. Upon conclusion of evidence the trial Court
vide judgments and orders dated 03.04.2024 sentenced and convicted
the respondent No.1 in each case to suffer 1(one) year simple
imprisonment and also to pay fine amounting Tk.60,48,231/ (sixty lac
forty eight thousand two hundred thirty one only). Subsequently on
25.05.2024 the respondent No.1 was arrested and he filed three
separate applications for bail in each case on 26.05.2024 under Section
426(2A) of the Code of Criminal Procedure, 1898 (for short Cr.PC) on
condition of preferring appeal before the appellate Court. Upon
hearing the bail applications the trial Court vide orders dated
26.05.2024 rejected the bail of the respondent No.1. Challenging the
said orders the respondent No.1 filed Criminal Revisions being
No.3178, 3180 and 3179 of 2024 before the High Court Division. Upon
hearing the said cases the High Court Division vide orders dated
30.05.2024 enlarged the respondent No.1 on bail in each case for a
period of 1(one) month, so that he can be able to deposit 50% of the
cheque amount for preferring appeal against the judgments and
orders of conviction and sentence passed by the trial Court.
Being disgruntled with the impugned orders dated 30.05.2024
passed by the High Court Division the complainant-petitioner in each
case filed these Criminal Petitions for Leave to Appeal.
Mr. A. M. Amin Uddin, learned senior Advocate appearing for
the petitioners in each case assailing the orders dated 30.05.2024
passed by the High Court Division contends that Section 138A of the
-4-
Negotiable Instruments Act stipulates for deposit of 50% of the total
cheque amount before filing appeal against the order of sentence
which is mandatory provision. The High Court Division has no
jurisdiction to enlarge the respondent No.1 on bail under Section
426(2A) of the Code of Criminal Procedure on condition of filing
appeal without deposit of the 50% of the total cheque amount. But
the High Court Division most illegally passed the impugned orders
and as such those are liable to be set aside.
On the other hand, Mr. M. Sayed Ahmed, learned senior Counsel
appearing for the respondent No.1 contends that the High Court
Division had given a breathing space by enlarging the respondent
No.1 to enable him to deposit 50% of the total cheque money in filing
appeal against the order of sentence awarded by the trial Court. The
learned senior Counsel contends next that the Negotiable
Instruments Act is a substantive law whereas the Code of Criminal
Procedure is procedural law which will be applicable to decide the
matter under Negotiable Instruments Act and as such the High Court
Division did not commit any illegality in passing the impugned
orders. The learned senior Counsel lastly prays for dismissal of the
Criminal Petitions.
We have considered the submissions of the learned Counsels
for both sides, perused the impugned orders passed by the High
Court Division as well as the materials on record.
It surfaces from the record that in the cases in hand the
respondent No.1 was arrested on 25.05.2024 and sought bail from the
trial Court under Section 426(2A) of the Code of Criminal Procedure
on condition of preferring appeal. However, he did not deposit 50%
-5-
of the total cheque money. The trial Court rejected the bail
applications of the respondent No.1 on 26.05.2024 in each case against
which the respondent No.1 again filed three Criminal Revisions
under Section 439 read with Section 435 of the Code of Criminal
Procedure before the High Court Division. The High Court Division
vide impugned orders allowed the respondent No.1 to go on bail
under Section 426(2A) of the Code Criminal Procedure for one month
so that he can deposit 50% of cheque money for preferring appeal in
each case. In the said backdrop, the moot issue in all the cases is
whether a convict under Section 138(1) of the Negotiable Instruments
Act is entitled to get bail under Section 426(2A) of the Code of
Criminal Procedure without complying with the stipulated condition
of depositing 50% of the total cheque money before preferring appeal
against the order of sentence as prescribed under Section 138A of the
Negotiable Instruments Act.
(underlines supplied by us)
Before delving into the said issue, it is apposite to extract
Sections 138A, 138(1) of the Negotiable Instruments Act vis-à-vis the
provisions of Section 426 of the Code of Criminal Procedure Section
138A of the Negotiable Instruments Act lays down the following-
“138A. Notwithstanding anything contained in the Code
of Criminal Procedure, 1898, no appeal against any order
of sentence under sub-section (1) of section 138 shall lie,
unless an amount of not less than fifty per cent of the
amount of the dishonoured cheque is deposited before
-6-
filing the appeal in the court which awarded the
sentence.”
(underlines supplied by us)
Section 138(1) of the Negotiable Instruments Act provides that-
“138.(1)Where any cheque drawn by a person on an
account maintained by him with a banker for payment of
any amount of money to another person from out of that
account is returned by the bank unpaid, either because of
the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that
account by an agreement made with that bank, such
person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act,
be punished with imprisonment for a term which may
extend to one year, or with fine which may extend
to thrice the amount of the cheque, or with both:
...............................................................................................”
Section 426 of the Code of Criminal Procedure is as follows-
”426.(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it in
writing, order that the execution of the sentence or order
appealed against be suspended and, also, if he is in
confinement, that he be released on bail or on his own
bond.
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court Division
in the case of any appeal by a convicted person to a Court
subordinate thereto.
-7-
(2A) When any person is sentenced to imprisonment for a
term not exceeding one year by a Court, and an appeal
lies from that sentence, the Court may, if the convicted
person satisfies the Court that he intends to present an
appeal, order that he be released on bail for a period
sufficient in the opinion of the Court to enable him to
present the appeal and obtain the orders of the Appellate
Court under sub-section(1) and the sentence of
imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.
(2B) Where High Court Division is satisfied that a
convicted person has been granted special leave to appeal
to the Appellate Division of the Supreme Court against
any sentence which it has imposed or maintained, it may
if it so thinks fit order that pending the appeal the
sentence or order appealed against be suspended, and
also, if the said person is in confinement, that he be
released on bail.
(3) When the appellant is ultimately sentenced to
imprisonment, or transportation, the time during which
he is so released shall be excluded in computing the term
for which he is so sentenced.”
(underlines supplied by us)
Section 138A of the Negotiable Instruments Act stipulates that
an amount of not less than fifty per cent of the amount of the
dishonoured cheque shall be deposited by the convict in the Court
which awarded the sentence under Section 138(1) of the Negotiable
Instruments Act if he desires to prefer appeal against the said order
of conviction. Again, according to Section 426(2A) of the Code of
-8-
Criminal Procedure where a person is sentenced to imprisonment not
exceeding one year against which an appeal lies and the convict
intends to prefer an appeal against the order of sentence the Court
has the discretion to release the convict on bail for a period so as to
enable him to present the appeal. However, so long as the convict is
released on bail the sentence of imprisonment shall be deemed to be
suspended.
But the crux of the contention is that whether the convict under
Section 138(1) of the Negotiable Instruments Act can prefer appeal
and get bail for some time if he does not comply with the mandatory
provisions of Section 138A of the Negotiable Instruments Act as
regards deposit of 50% of the total amount of cheque. Suffice it to say
that the Negotiable Instruments Act is a special law and the
legislature’s intent behind the enactment of Section 138 of the
Negotiable Instruments Act is to prevent the drawee from being
defrauded of a negotiable instrument by a drawer of the same and
ultimate object of the law is to instill trust in the mind of the people
and maintain credibility in transacting business on negotiable
instruments. When once certain conditions are stipulated under the
special law the conditions have to be strictly complied with.
Section 138A of the Negotiable Instruments Act has a non-
obstante clause which has an overriding effect over general provisions
contained in the Code of Criminal Procedure as regards preferring
appeal against the order of sentence. The non-obstante clause is a Latin
-9-
phrase meaning ‘notwithstanding’ which is used to indicate that a
particular provision should take precedence over any conflicting
provisions. It precludes the use of contrary interpretations from other
statutes or laws. In the cases in hand, Section 138A of the Negotiable
Instruments Act imposes a restriction on a convict as regards
depositing 50% of the total cheque money before preferring appeal
against the sentence. The condition of depositing the 50% of the total
cheque money and preferring appeal both are dependent on each
other. Thus, where there is no deposit of 50% of the cheque money by
the convict under Section 138(1) of the Negotiable Instruments Act no
appeal will lie. The pre-condition regarding deposit of 50% of the
cheque money cannot be curtailed by application of general law.
It is settled that interpretation of a statute should be based on
the object which the legislature intended to achieve. It has been
observed by Indian Supreme Court in the case of M/S New India
Sugar Mills Ltd. Vs. Commissioner of Sales Tax, AIR 1963 SC 1207
that-
“It is a recognized Rule of interpretation of statutes that
expressions used therein should ordinarily be understood
in a sense in which they best harmonize with the object of
the statute, and which effectuate the object of the
Legislature. If an expression is susceptible of a narrow or
technical meaning as well as a popular meaning, the
Court would be justified in assuming that the Legislature
used the expression in the sense which would carry out
-10-
its object and reject which renders the exercise of its
power invalid.”
(underlines supplied by us)
It is manifest from the overall reading of the Negotiable
Instruments Act that the legislature inserted the provision of deposit
of 50% of the total cheque money before preferring an appeal in the
Negotiable Instruments Act only to streamline the process of
recovery of cheque money so that no person can deceive another as
regards transactions over cheque. Therefore, the pre-condition of
depositing 50% of the total cheque money while preferring appeal as
enshrined in Section 138A of the Negotiable Instruments Act cannot
be given a go-bye which according to the principle of interpretation
of statute must be adhered to. The High Court Division is not given
such latitude to allow a convict under Section 138(1) of the
Negotiable Instruments Act to go on bail for some period on
condition of preferring appeal against the sentence without
depositing 50% of the total cheque money before preferring appeal.
But the High Court Division by the impugned orders misconstrued
the provisions of Section 138A of the Negotiable Instruments Act and
as such those call for interference by this Division.
Of course, it is to be clarified that Section 435 of the Code of
Criminal Procedure enables the High Court Division to examine the
correctness, legality or propriety of any order passed by Court
inferior to it. In the cases in hand, the High Court Division has the
-11-
revisional jurisdiction to examine the legality of the order of rejection
of bail passed by the trial Court under Section 435 of the Code of
Criminal Procedure. Moreover, the High Court Division in dealing
with the revisional application has such power as enumerated in
Section 439 of the Code of Criminal Procedure. However, in
exercising such revisional power as enumerated under Section 439 of
the Code of Criminal Procedure the High Court Division cannot
dispense with the pre-condition of depositing 50% of the total cheque
money before preferring appeal by the respondent No.1. It is to be
noted that Section 426(2A) of the Code of Criminal Procedure is not
contradictory with the provisions of Section 138A of the Negotiable
Instruments Act. Rather the provisions of Section 426(A) of the Code
of Criminal Procedure will be applicable subject to the fulfillment of
condition stipulated under Section 138A of the Negotiable
Instruments Act.
In the premises made above as well as for the foregoing
reasons, the impugned orders dated 30.05.2024 passed by the High
Court Division in Criminal Revision Case Nos.3178, 3180 and 3179 of
2024 are set aside.
However, upon deposit of 50% of the total cheque amount by
the respondent No.1 in each case this judgment shall not preclude
him from preferring appeal against the respective judgment
pronounced by the trial Court. In case of deposit of 50% of the total
-12-
cheque amount in each case the Court below will be at liberty to
enlarge the respondent No.1 on bail in connection with each case.
With the above observations, these Criminal Petitions for Leave
to Appeal are disposed of.
C.J.
J.
J.
The 11th day of June, 2024
RRO/Total words-2,831
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS. 8-9 OF 2017
(Arising out of C.P Nos. 347 and 348 of 2014 respectively)
Hajera Khan and others .... Appellants
(In both the appeals)
-Versus-
Afsaruddin being dead his heirs:
1(a) Rumia Khatun and others
....Respondents
(In both the appeals)
For the Appellants
(In both the appeals)
: Mr. Farid Ahmed, Senior Advocate
instructed by Mr. Zainul Abedin,
Advocate-on-record
For the Respondent
Nos. 1(a)-1(d)and 2-5
(In C.A No. 8 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
For the Respondent
Nos. 1(a)-1(d)and 3-5
(In C.A No. 9 of 2017)
: Mr. Zainul Abedin, Senior
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate -on-
record.
Date of Hearing : 09.01.2024 and 16.01.2024
Date of Judgment : 31.01.2024
J U D G M E N T
Md. Ashfaqul Islam, J: Both the civil appeals by leave are
directed against the judgment and order dated 16.10.2012
passed by the High Court Division in Civil Revision No.
3382 of 1995 (heard analogously with Civil Revision No.
3383 of 1995) making the rules absolute and thereby
setting aside the j udgment and decree passed in Title
Appeal No. 87 of 1989 (heard analogously with Title 2
Appeal No. 86 of 1989), dismissing the appeal and thereby
affirming the judgment and decree passed in Title Suit
No. 168 of 1984 (heard analogously with Title Suit No. 53
of 1987), decreeing the suit No. 168 of 1984 and
dismissing the suit No. 53 of 1987.
The predecessor of the present appellants, Amjad
Hossain as the plaintiff, filed Title Suit No. 575 of
1978 against Jashimuddin, the predecessor of the present
respondent Nos. 1 -5, and others which was subsequently
renumbered as Title Suit No. 168 of 1984. The suit sought
a declaration of title for the land s described in
Schedules 1 and 2, confirmation of possession of the land
in Schedule 1, recovery of khas possession of the land in
Schedule 2, and a permanent injunction along with mesne
profits.
Jashimuddin as plaintiff filed another suit being
Title Suit No. 53 of 1987 impleading Amjad Hossain as the
defendants regarding the self same suit land.
The case of the plaintiff in Title Suit No. 168 of
1984, in short, was that the lands described in schedule
1 and 2 are the accreted lands of Nuruli Ganga river
adjacent to C.S. Plot No.153 owned by Jibunnessa Khatun 3
and others, after accretion while the suit land became
fit for cultivation the predecessor of the plaintiff
Alauddin Bepari took settlement of the same from its
owner 40 years back by giving salami and paying taxes.
The suit land was duly recorded in the name o f Alauddin
Bepari in Plot Nos. 101 and 153. Alauddin Bepari died
leaving plain tiff as his heir. The defendants raised
objection against the S.A. record of the suit land under
section 30 of the State Acquisition and Tenancy Act but
became unsuccessful. The defendants reside near the
schedule 2 property and in the first part of Agrahayan
1385 B.S. they forcefully dispossessed the plaintiffs
from the schedule 2 property and hence the suit.
The case of the defendants is that the suit land is
the accreted land and it is contiguous to Plot Nos. 154,
161 and 162. While the land started accreting gradually
Jashimuddin took settlement of 10 1/2 pakhi of land from
the original owner Jibunnessa Khatun by executing a
kabuliyat which was registered on 14 th Chaitra 1353 B. S.
Subsequently Jasimuddin took settlement of 15 pakhi of
land more from Jibunnnessa by two patta. Since taking
settlement of those lands Jashimuddin possessed the same 4
on payment of rent to the landlord and subsequently to
the Government. He constructed his house on a portion of
the suit land and possessed the rest through cultivation,
all within the knowledge of everyone, including the
plaintiffs. During S.A. operation the suit land was
wrongly recorded in the name of plaintiffs . The
plaintiffs took advantage of the survey staff residing in
their house and collusively managed to have the suit land
recorded in their names in the S.A. khatian. The
defendants had been residing on the suit land for about
30 to 35 years.
During pendency of Title Suit No.168 of 1984
Jasimuddin himself also filed Title Suit No.53 of 1987 in
the same Court for declaration of title in the same land
and also for correction of record of right s. Both the
Title Suit No.168 of 1984 and Title Suit No.53 of 1987
were tried analogously. The trial Court, decreed Title
Suit No.168 of 1984 and dismissed Title Suit No.53 of
1987 by the judgment and decree dated 29.06.1989.
Being aggrieved by the decision of the trial Court,
the defendants of Title Suit No.168 of 1984 and the
plaintiff of Title S uit No.53 of 1987 preferred Title 5
Appeal Nos.86 of 1989 and 87 of 1989 respectively. The
appellate Court by the judgment and decree dated
04.04.1995 dismissed both the appeals affirming the
judgment and decree of the trial Court.
The heirs of the defendants of Title Suit No. 168 of
1984 and the plaintiff of Title Suit No.53 of 1987 then
preferred Civil Revision Nos. 3382 of 1995 and 3383 of
1995 before the High Court Division challenging the
judgment and decree of the appellate Court below which
upon heari ng the parties the High Court Division made
both the Rules absolute setting aside the judgment and
decree of the lower appellate court decreeing the Title
Suit No. 53 of 1987 and dismissing the Title Suit No. 168
of 1984. The heirs of plaintiff of Title Su it No.168 of
1984 and defendants of Title Suit No.53 of 1987 have
preferred separate Civil Petitions for Leave to Appeal
challenging judgment and order of the High Court Division
and obtained leave giving rise to these appeals.
The pith and substance of th e submissions pressed to
service by the learned Senior Advocate Mr. Farid Ahmed
for the appellants is that the High Court Division while
making the Rule absolute in both the revisions on setting 6
aside the concurrent findings of both the Courts below
gave a finding that both the Courts without discussing
the evidence on record decreed Title Suit No.168 of 1984
and dismissed Title Suit No.53 of 1987. This findings of
the High Court Division is perverse as because the trial
Court as well as the appellate Court on relying on the
S.A. and R.S. record of rights, farogs, rent receipts and
the oral evidence regarding possession and subsequent
dispossession of plaintiff of Title Suit No.168 of 1984
decreed that suit and dismis sed Title Suit No. 53 of
1987.
In elabora ting his submissions the learned counsel
contends that the High Court Division while making the
Rule absolute and setting aside the concurrent judgment s
and decrees of the Courts below, failed to point out the
misreading, non -reading or non -consideration o f any
evidence on record and without reversing the concurrent
findings of trial Court and appellate Court made the Rule
absolute.
On the other hand Mr. Zainul Abedin, the learned
Senior Advocate for the respondents submits the principle
not to interfere wi th concurrent findings of fact is not 7
a cast-iron practice and that the High Court Division in
appropriate cases may depart from that principle where
there is any violation of any rule of law or procedure or
where there have been misreading or non consider ation of
evidence affecting the ultimate decision of the Courts
below. In the instant case the High Court Division
rightly interfered with the concurrent findings of fact
arrived at by the Courts below . In support of his
contention he placed reliance in th e decision of Ziaul
Hasan Tarafder vs. Mir Osman Ali 73 DLR AD 250.
Now to sculpt a crystalised foundation of the
instances where the principle of no interference vis -à-
vis the principle of perversity were adopted by the High
Court Division and subsequentl y either endorsed or
disapproved by the Appellate Di vision we can take into
account established precedents.
To dispel any iota of ambiguity on the issue let us
go through some of those decisions clarifying the same.
In the case of Ziaul Hasan Tarafder (Md. ) vs. Mir
Osman Ali and Ors 73 DLR AD 250 it was observed:
“It is contended that the concurrent findings of
fact of the Courts below were illegally reversed
by the High Court Division although the High 8
Court Division could not point out any
misreading or n on reading of evidence, oral or
documentary.”
In the case of Atiqullah alias Atik Vs. Md Safiquddin
being dead his heirs Rashida Begum and others 59 DLR AD
149 this Division observed:
“The learned Advocateon -record failed to point
out that the considerati on of evidence made by
the High Court Division in the background of
non-consideration and misreading of the evidence
by the appellate Court was erroneous in any
respect and the said Division was in error in
arriving at the finding as to title and
possession of plaintiff and thereupon in setting
aside the judgment of the appellate Court. In
that state of the matter we do not find any
substance in the petition.”
In the case of Most. Akiman Nessa Bewa and others Vs.
Harez Ali and others 17 BLD AD 36 it was also observed:
“We find that the High Court Division upon
giving cogent reasons found that the plaintiff
was not entitled to the benefit of section 13 of
the Limitation Act as the pleading in the plaint
did not attract the application of the said
section. Als o we find that the High Court
Division in revision rightly interfered with the
finding of fact of the lower appellate Court 9
with regard to the genuineness of the bainapatra
Ext. 6. We therefore find no ground for
interference.
In the case of Promad Chandra Barman vs. Khodeza
Khatun Bewa 12 BLC AD 225 it was observed:
“In the facts and circumstances of the case and
in view of our discussion above, we are of the
view that the High Court Division without
adverting to the findings given by the court of
appeal regarding of pattan by Basanta Kumar in
favour of the plaintiffs by dakhilas, subsequent
execution of unilateral kabuliyats by plaintiffs
in favour of Basanta Kumar and possession of the
defendants in the suit land reversed those
finding on reassessment of the entire evidence.
Accordingly, the High Court Division committed
error of law in making the Rule absolute, which
requires interference by this court.”
In the case of Abul Bakar Siddique (Md) vs.
Additional Deputy Commissioner Kurigram and others 48 DLR
AD 154 it was observed:
“The learned Single Judge of the High Court
Division having independently assessed the
evidence and having found a case of non -
consideration of material evidence on record and 10
consequent non -reversal of material findings
interfered with the finding of fact. To our
mind, the revisional court is competent to
interfere in a case of non -consideration of
material evidence which is specifically material
for the determination of the material issue,
namely, the issue of shifting of the schoo l to
the new mouza.”
In the case of Khorshed Alam Vs. Amir Sultan Ali
Hyder 38 DLR AD 133 it was observed:
“The learned Single Judge is found to have
rightly refused interference with the finding of
the courts below which stands on a solid rock.”
Let us no w digress into the instant case . Upon
gleaning of the decision of the High Court Division with
utter surprise we observed that it has misdirected itself
without adverting to all the positive findings of the
courts below as we have discussed above. The find ings of
both the Courts below as we have discussed left nothing
unsaid about the good title and possession of the
plaintiff discarding the feeble and weak case of the
defendants. 11
Though the learned Senior Advocate Mr. Zainul Abedin,
Senior Advocate appear ing for the respondents tried to
impress upon us basing on the decision of Ziaul Hasan vs.
Osman Ali 73 DLR AD 250 that it’s not a cast -iron
practice and dogmatic approach that the High Court
Division will not interfere with the concurrent findings
of Courts below. The decision as cited by the respondent
is well founded and the principle laid down therein is an
age old one. It has been decided time and again by this
Division. As referred to above decision, certainly it’s
not a cast -iron practice and dogmat ic approach that the
High Court Division will not interfere with the
concurrent findings of Courts below. Yes, in a proper
case as it is propounded in the above decision that High
Court Division has ample and unfettered power to
interfere with the concurre nt findings of the Court
below. It can be reiterated that if the decision of the
Courts below is a perverse one, no reasons, whatsoever
can preclude the High Court Division in interfering with
the same. But in the case in hand, no departure of such
kind could be traced out upon gleaning the judgments of
both the Courts below. Therefore, question of
interference by the High Court Division does not arise in
this context. It did not at all advert to the points upon
which the decision of the Courts below was ba sed. It has 12
travelled in a different direction trying to stretch out
the case in favour of the defendants and against the
plaintiff which we disapprove. It is not a case in which
this Division will endorse merrily the view of the High
Court Division contemplating the Judgments of the courts
below being perverse. Rather we hold that the High Court
Division should have been loath in interfering the
concurrent findings.
Further, on the question of limitati on, the Courts
below held that S tate Acquisition and Tenancy Act came
into force in 1962 but the defendants instituted the
Title Suit claiming the suit land in the year 1987 which
is hopelessly barred by limitation. The question of
limitation goes at the root, we cannot simply understand
how it escaped noti ce of the High Court Division. No
deliberation has been given on that point. Moreover, the
Amalnama as it has been observed by the Courts below to
be fake and fabricated not coming from the real owner was
totally ignored and not taken into consideration by the
High Court Division. Likewise, there are so many laches
and lacunas which in our view, cannot in any case lead us
to think that the decision of the High Court Division was
a proper judgment of reversal. 13
On the conspectus , we find merit in the appeals .
Accordingly, both the appeals are allowed. The impugned
judgment and order of the High Court Division is set
aside, however, without any order as to costs.
CJ.
J.
J.
J.
The 31st January, 2024
/Ismail,B.O./*2469*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 375 OF 2015
(Arising out of C.P. No. 1797 of 2014)
Government of the People’s Republic of
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works, Bangladesh Secretariat,
Shahbag, Dhaka and others
.... Appellants
-Versus-
Belal Udd in, represented by his
Constituted Attorney Murtaza Zakir
Hossain
....Respondents
For the Appellants : Mr. SK. Md. Morshed, Adl. AG with
Mr. Samarandra Nath Biswas, DAG,
Mr. Mohammad Saiful Alam, AAG and
Mr. Sayem Mohammad Murad, AAG
instructed by Mr . Hairdas Paul ,
Advocate-on-Record
For Respondent : Mr. Kamal-ul-Alam, Senior Advocate
with Ms. Shahnaj Akhter, Advocate
instructed by Mr. Syed Mahbubar
Rahman, Advocate-on-Record
Date of Hearing : 03.01.2024 and 07.02.2024
Date of Judgment : 27.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 10.04.2014 passed by
the High Court Division in Writ Petition No.5218 of 2012
making the Rule absolute.
2
The present resp ondent Belal Uddin as petitioner
filed the aforesaid writ petition challenging inclusion
of the property measuring 12 decimals of land of B.S.
plot No.157 appertaining to B.S. Khatian No.9 recorded in
the name of predecessor of the writ -petitioner/transferor
corresponding to P.S. Plot No.99 of P.S. Khatian No.52
transformed from R.S. Plot Nos.87/104 as appeared in item
No.98 mentioning Plot No.9, Mouza -Pahartali under P.S.
Doublemooring at page 15656 (Kha) published in the
Bangladesh Gazette on 26.12.1988 v ide S.R.O. dated
25.12.1988 under section 5(1) of the Abandoned Buildings
(Supplementary Provision) Ordinance, 1985.
The case, made out in the Writ Petition, in brief, is
as follows:
The property in question originally belonged to Lalit
Mohan Roy and othe rs, recorded in the names of Amin
Sharif and Serajul Haque as rayati tenants during the R.S
operation. Upon Amin Sharif's demise, his daughter Sajeda
Khatun became the sole heir. Sajeda Khatun then
transferred 1.12 acres of land, including the case land,
to Anwara Ahammed Cowdhury via registered sale deed No.
2951 dated 16.04.1956, delivering possession to the 3
transferee. Subsequently, the writ-petitioner purchased
the property through registered sale deed No. 478 dated
08.01.1985 from Anwara Aham med Chowdh ury and got
possession. However, without issuing any notice, the
property was listed as abandoned. Due to non -service of
notice and being abroad, the writ-petitioner couldn't
approach the Court of Settlement, leaving no alternative
but to file an application under Article 102 of the
Constitution and obtained Rule.
Upon hearing the parties, the High Court Division
made the Rule absolute. Against which the writ -
respondents filed civil petition for leave to appeal and
obtained leave giving rise to this appeal.
Mr. SK. Md. Morshed, the learned Additional Attorney
General appearing for the appellants, contends that the
writ petitioner failed to provide evidence refuting the
absence of the ori ginal owner, Anwara Ahammad Chow dhury,
in Bangladesh when President's O rder 16 of 1972 took
effect. Therefore, inclusion of the property as abandoned
under the Supplementary Provisions Ordinance, 1985 was
lawful. The High Court Division erred by overlooking this
crucial point in its consideration of the case. 4
He finally submits that, being a Court of Appeal, the
High Court Division was not mandated to conduct factual
determinations of its o wn. However, its failure to
adequately address pertinent evidence prejudicial to the
complaining party, or any indication of mala fide cond uct
or infringement of the principles of natural justice,
renders the impugned judgment required to be set aside.
On the other hand Mr. Kamal -ul-Alam, the learned
Senior Advocate for the respondent -writ petitioner,
contends that the enlistment of the land in question as
abandoned property constitutes a clear violation of the
principle of natural justice, as stipulated in Article
7(3) of the Bangladesh Abandoned Property Order, 1972 (P.
O. No. 16 of 1972), and Section 5(1)(b) of the Bangladesh
Abandoned Buildings (Supplementary Provisions) Ordinance,
1985 (Ordinance No. LIV of 1985). He argues that neither
prior notice for enlistment nor subsequent notice for
surrender or transfer of possession was served to the
respondent or his transferor. He emphasizes th at the
gazette notification dated 26.12.1988 cannot serve as a
substitute for such statutory notice, rendering the
enlistment illegal. 5
Furthermore, He asserts that the land in question
does not meet the criteria or definition of abandoned
property. He argu es that its enlistment was based on
assumptions and mistaken beliefs without any factual
basis, as neither the respondent nor his transferor nor
any previous owner were engaged in activities detrimental
to the state's interests.
Next he submits that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the property
in person d eserting the same before the commencement of
P. O. No. 16 of 1972 and as the land in question does not
fall within the purview of P. O. No. 16 of 1972 and
therefore, the enlistment of the land in question as
abandoned property being illegal, the instant ap peal is
without any merit and liable to be dismissed.
He also placed reliance upon a series of decisions,
such as Bangladesh represented by the Secretary, Ministry
of Works and others vs. Helaluddin Ahmed 4 MLR (AD) 140,
where it was unanimously held that prior notice for 6
enlistment or treatment of properties as abandoned
property is a condition precedent. Since this condition
precedent was not fulfilled in the present case, Mr.
Kamal-ul-Alam asserts that the enlistment of the
respondent's property as abandoned property is inherently
illegal. Therefore, he argues that there is no merit in
the appeal and it should be dismissed accordingly.
We have heard the learned Advocates of both sides and
perused the impugned judgment and order of the High Court
Division.
The High Court Division noted that no notice was
served upon the writ -petitioner prior to the enlistment
of the property as an abandoned property. It is also
noted that as per documents presented in the writ
petition the petitioner was found to be in poss ession of
the property in question, and no notice for surrendering
or taking over possession of the disputed building could
be produced by the Government, as mandated by Section 5
of Ordinance No.54 of 1985. Section 5 of the Ordinance
stipulates that listing in the official gazette of house
buildings as abandoned property requires issuance or
service of notice, or taking possession pursuant to such 7
notice. The absence of such notice renders the listing
illegal. Citing the precedent set in the case of
Bangladesh represented by the Secretary, Ministry of
Works and others Versus Helaluddin Ahmed, reported in 4
MLR AD 140, this court underscored the necessity of
serving notice before treating a property as abandoned.
It was also held that d espite being unaware o f the
inclusion of the property until March 1, 2009, when the
time for seeking remedy through the Court of Settlement
had expired, the petitioner's right to challenge the
inclusion was upheld under Article 102(2)(a)(ii) of the
Constitution. The court affir med the maintainability of
the petitioner's application challenging the inclusion of
the disputed property in the impugned Gazette under
Article 102(2)(a)(ii) of the Constitution, considering
the non -existence of an alternative remedy due to the
expired timeframe.
It is absolutely incumbent upon the claimant who
claims the property to be illegally included in the
gazette to prove the said property not to be abandoned.
The fact of proving that the property is not an abandoned
one and not vested in the Govern ment is totally on the 8
person who challenges the same to be not an abandoned
property and intends to take such property out of the
list of the abandoned property published in the official
Gazette or for any other relief as detailed in section 7
of the Ordi nance 54 of 1985. In the case of the
Government of Bangladesh vs. Md. Jalil and others
reported in 48 DLR AD 10 it was held:
“The High Court Division, in our opinion, stated
with a wrong premise holding that the
presumption of correctness of the entries i n the
Gazette notification does not absolve the
Government from denying the facts alleged by the
claimant or from disclosing the basis of
treating the property as abandoned property when
it is disputed. Section 5(2) of the Ordinance
clearly provides that t he list published under
sub-section (1) shall be conclusive evidence of
the fact that the buildings included therein are
abandoned property and have vested in the
Government as such. Section 7 says that a person
claiming any right or interest in any such
building may make an application to the court of 9
Settlement for exclusion of the building from
such list, etc. on the ground that the building
is not an abandoned building and has not vested
in the Government under President’s Order No. 16
of 1972 or that h is right or interest in the
building has not been affected by the provisions
of that Order. The onus, therefore, is squarely
on the claimant of the building to prove that
the building is not an abandoned property. The
Government has no obligation either to deny the
facts alleged by the claimant or to disclose the
basis of treating the property as abandoned
property merely because the same is disputed by
the claimant.”
The stringent provisions of law that the onus lies
upon the claimant of the building to pr ove that the
building is not an abandoned property have been settled
by plethoras of decisions.
Now the core question is whether the writ-petitioner
was able to prove before the High Court Division that
original owner Anwara Ahammed Chowdhury from whom the
property had been purchased by the writ petitioner was 10
present at the relevant time, that is March 1971 to
February 1972.
Mr. Kamal-ul-Alam, the learned Senior counsel for the
respondent-writ-petitioner on this score has strenuously
tried to impress upon us that the writ petitioner and his
transferor both are the citizen of Bangladesh, they were
born in Bangladesh and they were always present in
Bangladesh, their whereabouts were never unknown and they
never ceased to occupy, supervise or manage the proper ty
in person deserting the same before the commencement of
P. O. No. 16 of 1972 but no rebuttable evidence could be
adduced to show that the transferor Anwara Ahammed
Chowdhury was present in Bangladesh for the purpose of
proving that the property was not an abandoned property.
It is our considered view that the writ-petitioner is not
absolved from the burden of proving to the hilt the
whereabouts of Mr. Anwara Ahammed Chowdhury during the
relevant period as hinted above. Almost in a similar
facts and circu mstances this Division came down heavily
in the case of Bangladesh, represented by the Secretary,
Ministry of Public Works Department and Urban Development 11
vs. Md. Suruzzamal and others reported in 48 DLR AD 1. In
paragraph 19 of the said reference it has been observed:
“This Division has held in the case of Gannyson
vs. Sonali Bank, 36 DLR AD 146, that once a
property vests in the Government under
President’s Order No. 16 of 1972 no legal
proceedings can be taken against such property.
The money decree obtained by Rupali Bank against
Dr. Shamim, the execution thereof and the
auction sale of the suit property are all void
and will not divest the Government of its title
to the suit property and the auction -purchaser
has acquired no title to the same by his a uction
purchase.”
Facts and circumstances of the above case are almost
similar to that of the case in hand. Admittedly, the
property is enlisted in the list of abandoned property .
Therefore, non service of notice upon the writ-petitioner
is of no avail.
In the case of Rawsanara vs. Bangladesh 59 DLR AD 165
it has been held that- 12
“In the instant case the petitioner having not been
able to establish before the Court of Settlement that the
claimant of the property or for that matter her vendor
Anwari Khatun were present in Bangladesh on 28-2-1972 and
consequent thereupon the property having had assumed the
character of abandoned property, the listing of the
property in question, even if without service of notice
as per provision of Ordinance No. 54 of 1985, i s not
material as the property because of non-service of notice
for listing in the list of abandoned properties would not
cease to be an abandoned property and consequent
thereupon the claim of title made by the petitioner in
the property in question is no t legally sustainable or,
in other words, the petitioner cannot raise any claim of
title in the property in question since said property is
an abandoned property.”
This proposition of law has been endorsed by a
subsequent decision of Shahidul Haque Bhuiyan and others
vs. Chairman, 1st Court of Settle ment and another 69 DLR
AD 241 and finally set at rest. In that decision it has
been observed in paragraph Nos. 23 and 24 by this
Division:- 13
“Next point raised by the Counsel is that since
no notice was served u pon the appellants before
the publication in the gazette, the listing of
the buildings is illegal. There is no dispute
that the property has been listed in the 'Kha'
list. Service of notice is required under clause
(b)(1) of section 4 for surrendering or g iving
possession of the buildings upon the person in
legal possession and the notice for surrendering
possession shall have to be issued within the
specific time. Law does not provide for service
of notice upon any person who is not in
possession of the bu ildings. Both the learned
Counsel submit that since no notice has been
issued upon the appellants, there has been
violation of law. In this connection they have
referred to Article 7 of PO 16 of 1972 read with
Rule 3(1)(8) of the Bangladesh Abandoned
Property (taking over possession Rules 1972).
Article 7(2) provides service of notice upon
the person in possession of the property within
seven days by the Deputy Commissioner or the
authorized person for taking possession. Similar
provision has been inserted in clause (b) of
section 4 of the Ordinance with the exception
that under the latter provision if the 14
possession is to be taken such notice be issued
upon him. In order to bring the case under
Article 7, the appellants must prove that they
are in possessi on of the building but if they
fail to prove possession, the claim of service
of notice upon them is redundant for, if they
are not in possession how the government can
infer that they have right or interest in the
buildings. More so, section 4 is a non -obstante
clause overriding the provisions contained in
the President's Order 16 of 1972. The rules
frames under the President's Order cannot
supersede the parent law. In the premises, the
High Court Division is perfectly justified in
holding that the appella nts are not entitled to
any notice since they are not in possession of
the property. In this regard, the Court of
Settlement held that the question of non -service
of notice required u nder section 4(1)(b) of the
Ordinance was not challenged in the case.
Similar views have been taken in Rowshan Ara vs.
Bangladesh, 59 DLR (AD) 165. It has been held
that if the property has assumed the character
of abandoned property, 'the listing of the
property in question, even if without service of
notice as per provision o f Ordinance No. 54 of
1985, is not material as the property because of
non-service of notice of listing in the list of 15
abandoned properties would not cease to be an
abandoned property......'”
As long as the property has attained the status
and char acter of an abandoned property through the
operation of law, any argument concerning the non -service
of notice upon the writ -petitioner holds no merit. In
such circumstances, the procedural lapse regarding
notification becomes inconsequential and cannot be
invoked to challenge the legal disposition of the
property. Consequently, the arguments presented by Mr.
Kamal-ul-Alam, addressing the issue of notice, bereft of
any consideration. The legal principle here is clear: the
designation of a property as abando ned supersedes and
nullifies any procedural objections related to notice,
rendering them legally ineffective and immaterial.
Article 2 of the PO 16 in clear terms has spelt out the
definition of abandoned property which is as under:-
“(i) “abandoned property means any property owned by
any person who is not present in Bangladesh or whose
whereabouts are not known or who has ceased to occupy,
supervise or manage in person his property, including-
(i) any property owned by any person who is a citizen
of a State which at any time after the 25th day of March,
1971, was at war with or engaged in military operations
against the People's Republic of Bangladesh; 16
(ii) any property taken over under the Bangladesh
(Taking Over of Control and Management of Industrial and
Commercial Concerns) Order, 1972 (Acting President's
Order No. 1 of 1972), but does not in clude- (a) any
property the owner of which is residing outside
Bangladesh for any purpose which, in the opinion of the
Government, is not prejudicial to the interest of
Bangladesh;
(b) any property which is in the possession or under
the control of the Go vernment under any law for the time
being in force.”
Therefore, the irresistible inference which follows
that in a ny course of event the bounden duty to be
discharged by the claimant for taking out a property from
the clutch of ‘abandoned property’ has b een time and
again decided in one line. Though it will be repetition
but still we want to reiterate that it is the claimant
who shall have to prove to the hilt that the property in
question is not an abandoned property. In the instant
case the petitioner c ould not prove that his transferor
Anwara Ahammed Chowdhury was present at the relevant time
as required under law and interpreted by several
decisions as discussed above. 17
Accordingly, the appeal is allowed without any order
as to costs. The impugned judg ment and order passed by
the High Court Division is hereby set aside.
CJ.
J.
J.
J.
J.
The 27th February,2024
/Nayeem Firoz, RRO & Ismail,B.O./*2085*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.74 OF 2007.
(From the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference
Application No.274 of 2006 with Rule No.09(Ref) of 2006).
East West University, a Project of Progati
Foundation for Education and Development, a
Society Registered under the Societies
Registration Act, 1860 having its address at
45, Mohakhali, C.A. Dhaka.
: ...Appellant.
-Versus-
The Commissioner of Taxes, Taxes Zone-3, Dhaka. :...Respondent.
For the Appellant.
: Mr. Khairul Alam Chowdhury, Advocate
instructed by M r. Md. Helal Amin ,
Advocate-on-Record.
For the Respondent.
: Mr. A.M. Amin Uddin, Attorney
General with Mr. Samarendra Nath
Biswas, Deputy Attorney General,
Ms. Mahfuza Begum, Deputy Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General, Ms.
Farzana Rahman Shampa, Assistant
Attorney General, instructed by Mr.
Haridas Paul, Advocate-on-Record.
Date of Hearing. : The 25th & 27th February, 2024.
Date of Judgment. : The 27th February, 2024.
J U D G M E N T
Borhanuddin,J: This civil appeal by leave is directed
against the judgment and order dated 14.01.2007 passed by
the High Court Division in Income Tax Reference 2
Application No.274 of 2006 with Rule No.09(Ref) of 2006
allowing the application in part.
Brief facts are that the appellant university is a
Project of Progati Foundation for Education and
Development and r egistered under the Societies
Registration Act, 1860 ; Said Foundation adopted a
resolution that the university would be run exclusively
for educational purposes , not for the purpose of a ny
profit, excess income from the university would be
utilized only for educational purposes , no income which
is in excess of the expenditure to be paid to any member
of the foundation or to any of its sections; The
appellant-university submitted income tax return for the
year 2004-2005 showing an income of Tk.8,68,26,317/ - and
claimed the income as exempted from tax by the SRO
No.178-Income Tax/2002 dated 03.07.2002 read with SRO
No.454-L/80 dated 31.12.1980; The Deputy Commissioner of
Taxes (hereinafter referred to as ‘the DCT’), Companies
Circle-9, Taxes Zone -3, Dhaka, ignoring the
aforementioned SROs, i.e. provisions of exemption in
respect of the income of the university assessed tax at 3
Tk.14,01,52,554/-; As against the order of the DCT , the
appellant-university preferred appeal before the
Commissioner of Taxes [hereinafter referred to as ‘the CT
(Appeal)’], Appeal Zone -3, Dhaka, but the CT ( Appeal)
with some modification dismissed the appeal vide order
dated 23.08.2005; Against the order of the CT ( Appeal),
the appellant preferred second appeal being Income Tax
Appeal No.1688 of 2005 -2006 before the Taxes Appellate
Tribunal, Division Bench -4, Dhaka , and the Tribunal by
its judgment and order dated 20.02.2006 dismissed the
appeal affirming the decision of the CT ( Appeal) on the
finding that since tuition fees are charged and teachers
are paid remuneration therefore the appellant runs the
private university on commercial basis and the income
over expenditure being its income from business is
taxable and the Tribunal also agreed with the DCT and the
CT (Appeal) in disallowing an amount of Tk.1,04,22,925/ -
claimed as disbursement of scholarship to poor and
meritorious students and a further amount of
Tk.10,00,000/- spent on Medha Lalon Fund. 4
As against the judgment of the Tribunal, the
appellant filed an application under Section 160 of the
Income Tax Ordinance, 1984 , before the High Court
Division formulating 8(i-viii) questions of law in the
form of following grounds:
“i. For that the assess ee Applicant being
totally exempt from tax the Tribunal erred
in holding that since tuition fees are
charged and the teachers are paid salaries
the appellan t’s income over expenditure is
its income from business.
ii. For that the appellant is a non -
profitable institution established for the
promotion of education and no part of its
income are utilised for its promoters/
founders but utilised solely for its own
purpose especially for the purpose of
education and infrastructure development and
there is no sc ope to run the appellant-
university on commercial basis and as such
it is entitled to get benefit of exem ption
of income tax under SRO No. 454-L/80 dated
31.12.1980 and SRO No. 178 dated 03.07.2002
and in such situation the Tribunal acted
illegally in dismissing the appeal.
iii. For that information technology being
imparted the appellant is exempted from tax
under SRO No.178 dated 03.07.2002.
iv. For that the Tribunal acted illegally in
not holding that the profit seeking purpose 5
being the basic elemen t to be operated on
commercial basis and the appellant being a
non-profitable educational institution
cannot be operated on commercial basis and
its entire income is held by it for the
purpose of education and thus it is entitled
to be exempted from income tax under the SRO
dated 03.07.2002.
v. For that the Tribunal acted illegally in
treating the appellant to be a University
run on commercial basis when the appellant
is clearly a non -profitable institution and
the amended Notification did not make any
difference so far the appellant is
concerned.
vi. For that the compu ter department of the
appellant-university is not subject to tax
inasmuch as the income from this Department
is exempted from paying tax under SRO dated
03.07.2002.
vii. For that the Tribunal acted illegally in
affirming the disallowance by the DCT and its
confirmation by the CT (Appeal) of the entire
disbursement of Tk.1,04,22,925/ - on scholarship
to the poor and meritorious students in
fulfilment of the University Grants
Commission’s requirem ents inasmuch as such
disallowance is not tenable in the eye of law.
viii. For that the Tribunal acted illegally
in affirming the decisions of the DCT and CT
(Appeal) as regards the rejection in its
entirety the amount of Tk. 10,00,000/- spent
on Medha Lalo n Fund inasmuch as such 6
rejection in disregard of the objectives of
the Foundation is not supportive of law.”
Upon hearing the respective parties, the High Court
Division allowed the reference application in part
answering the formulated Question Nos.(i) -(vi) i n
negative and Question Nos.(vii) and (viii) i n affirmative
vide impugned judgment and order dated 14.01.2007.
Having aggrieved , the appellant being petitioner
preferred Civil Petition for Leave to Appeal No.152 of
2007 invoking Article 103 of the C onstitution and
obtained leave granting order on 28.03.2007.
Consequently, instant civil appeal arose.
Mr. Khairul Alam Choudhury , learned Advocate
appearing for the appellant submits that the Government
(Ministry of Finance) in exercise of its power as
conferred by Section 60(1) of the Income Tax Act, 1922
published gazette notification being SRO No.454 -L/80
dated 31.12.1980 exempting income tax on some classes of
income including the income of the unive rsity or any
other educational institutions existing solely for
educational purpose and not for the purpose of profit. 7
Subsequently, the Government in exercise of its power as
conferred by Section 44(4)(b) of the Income Tax
Ordinance, 1984 amended the said SRO No.454 -L/80 and
substituted Sub -Clause (3) of Clause (a) making the
income of university/any other educational institutions
“not operated commercially” as tax exempted and as such
the appellant-university registered under the Societies
Registration Ac t, 1860 and not being operated
commercially is entitled to have the benefit of SRO
No.454-L/80 dated 31.12.1980 read with SRO No.178 -Income
Tax/2002 dated 03.07.2002. He also submits that income of
the appellant-university is spent for promoting education
by giving scholarship s and other incentives to the
students for development of education and the appellant-
university not being operated commercially is entitled to
have the benefit of SRO No.454 -L/80 dated 31.12.1980 read
with SRO No.178 -Income Tax/2002 dated 03.07.2002. He
further submits that the issue raised in this appeal has
been settled and is covered vide order dated 06.02.2017
passed by this Division in Civil Petition for Leave to
Appeal Nos.1896-1900 of 2015. 8
On the other hand Mr. A.M. Amin Uddi n, learned
Attorney General appearing for the respondent conceded
that the issue raised in this appeal has been settled by
this Division in Civil Petition for Leave to Appeal
Nos.1896-1900 of 2015 a ffirming the judgment and order
dated 14.05.2015 passed by a larger Bench of the High
Court Division in Income Tax Reference Application
Nos.159-162 of 2011 and 511 of 2004.
Heard the learned Advocate for the appellant and the
learned Attorney General for the respondent and perused
the impugned judgment and ord er passed by the High Court
Division alongwith papers/documents contained in the
paper book.
The issue involved in the appeal
The appellant filed Incom e Tax Reference Application
No.274 of 2006 before the High Court Division under
Section 160 of the Income Tax Ordinance, 1984 in respect
of the income tax assessment year 2004 -2005 challenging
the order dated 28.02.2006 of the Taxes Appellate
Tribunal, Division Bench-4, Dhaka, in Income Tax Appeal
No.1688 of 2005 -2006, wherein the Tribunal declined to 9
allow t ax exemption under SRO No. 454-L/80 dat ed
31.12.1980 read with SRO No. 178-Income Tax/2002 dated
03.07.2002.
The said SRO No. 454-L/80 dated 31.12.1980 read with
SRO No.178-Income Tax/2002 dated 03.07.2002 (as on the
date of assessment) provides as follows:
“In exercise of the powers conferred by Sub-
Section (1) of Section 60 of the Income -Tax
Act, 1922 (XI of 1922) and supersession of the
Ministry of Finance Notif ication No. SRO
1041(K)/61, dated the 31 st October, 1961 the
Government is pleased to direct that:
(a) The following classes of income
shall be exempt from the tax payable
under the said Act and they shall
not be taken into account in
determining the total income of an
assessee for the purposes of the
said act.
-AND-
(3) the income of any university, or any other
educational institution, which is not operated
commercially and also medical college, dental
college, engineering college and institution
imparting education on information
technology.”
The High Court Division vide judgment and order dated
14.01.2007 passed in the Income Tax Reference Application
No.274 of 2006 upheld the decision of the Tribunal 10
declining to extend entitlement of exemption to the
appellant-university on the ground that the appellant
failed to submit certificate or exemption letter of the
income tax authority proving that the appellant -
university is entitled to tax exemption under the said
SRO dated 31.12.1980 as amended by SRO dated 03.07.2002.
The relevant part of the said judgment and order dated
14.01.2007 is quoted below:
“----The SRO No.454-L/80(a) dated 31.12.1980
as amended by SRO No.178 -Income Tax/2002
dated 03.07.2002 contains, amongst other,
that the income of any University or any
other educational institution ‘not operated
commercially’ and/or ‘institution impartin g
education on information technology ’ are
exempted from payment of tax and the same is
general provision as to entitlement to claim
exemption. In order to get such exemption it
is necessary to satisfy the Taxes authority
as to the fulfilment of the condit ions/
criteria laid down in the SRO ’s by an
university or educational institution and on
being satisfied the Tax authority is to
issue a certificate or exemption letter to
be produced/referred as and when required by
the assessing officer. The SRO ’s do not
authorize the assessing officer to decide
the claim of such tax exemption by an
assessee inas much as such claim for tax -11
exemption requires proper enquiry by
competent authority.”
Against the judgment and order dated 14.01.2007
passed by the High Court Division in Incom e Tax Reference
Application No.274 of 2006, this Division granted leave
on 28.03.2007 , out of w hich the instant Civil Appeal
No.74 of 2007 arose.
On perusal of the judgment and order dated 14.05.2015
passed by the larger Bench of the High Court Division and
order dated 06.02.2017 passed by this Division it appears
that the issue involved in the instant appeal has been
settled by this Division affirming the judgment and order
of the larger Bench of the High Court Division.
Relevant portion of the judgment and order passed by
the larger Bench of the High Court Division is quoted
below:
The main arguments entered around whether
the asses see-university or the assessee -
college may be treated as ‘being operated
commercially’. There is no dispute that the
words ‘operated commercially’ or ‘not
operated commercially’ have not been defined
in the Ordinance or the Rules made
thereunder. From the Notification, SRO 12
No.178, it ap pears that no definition or
explanation has been given for treating a
university or educational institution as
‘not operated commercially’.
--------------------------------------------
--------------------------------------------
Thus, considering the meani ng of
‘commercially activity ’ as discussed
hereinbefore, it is evident that the
expression of the words ‘not operated
commercially’ is vague and it may carry
meaning in favour or against the assesses
i.e. both ways. When there is doubt, an
interpretation w hich is favourable to the
subject should be preferred .-National Board
of Revenue vs. Bata Shoe Co., 42 DLR (AD)
105. When a particular provision is
susceptible of two or more interpretations,
that one most favourable to the citizen must
accepted.-Commissioner of Customs vs.
Customs, Excise & VAT Appellate Tribunal, 8
BLC 329. It is a settled principle of law
that when the provision of a fiscal law
carries different meaning, in such case, the
benefit of it will go in favour of the
citizen i.e. the assesse e-university/the
assessee-college.
Question (ii) is about the requirement of
certificate or exemption letter issued by
Tax Authority to get exemption from payment
of income tax.
--------------------------------------------
--------------------------------------------
The learned Deputy Attorney General failed
to show before us that there is any legal 13
requirement to issue a certificate by the
Tax Authority or exemption letter to be
produced in order to get the benefit of SRO
No.454 read with SRO No.178.
--------------------------------------------
--------------------------------------------
In the result, our answer to questions (i)
and (ii) as re -formulated by us are decided
in the negative in favour of the assesse e-
applicants and against the department -
respondent.”
Thereafter, this Division vide order dated 06.02.2017
in Civil Petition for Leave to Appeal No s.1896-1900 of
2015 upheld the said judgment and order dated 14.05.2015
passed by a larger Bench of the High Court Division in
Income Tax Reference A pplication Nos.159 to 162 of 2011
and 511 of 2004.
It appears that the issue of the prese nt appeal and
the issue involved in Income Tax Reference Application
No.159-162 of 2011 and 511 of 2004 are identical. Both
relates to tax -exemption under SRO No.454 -L/80 dated
31.12.1980 read with SRO No.178 -Income Tax/2002 dated
03.07.2002 and also relates to the same assessment year
i.e. 2004-2005. 14
It is mention ed earlier that, the Income Tax
Reference Application Nos.159-162 of 2011 and 511 of 2004
[reported in 2017 11 ALR (HCD) 6 ], has been settled by a
larger Bench of the High Court Division which is
maintained by this Division in Civil Petition for Leave
to Appeal Nos.1896 -1900 of 2015 vide order dated
06.02.2017.
It is true that the words ‘operated commercially’ or
‘not operated commercially’ have not been defined in the
Income Tax Ordinance, 1984 or the Rules made thereunder.
It also appears from the Notification, SRO No.178 -Income
Tax/2002 dated 03.07.2002, that no definit ion or
explanation has been given for treating a university or
educational institutions as ‘not operated commercially’.
As such , we are in agreement with the order dated
06.02.2017 passed by this Division in Civil Petition for
Leave to Appeal Nos.1896 -1900 of 2015 affirming findings
of the larger Bench of the High Court Division passed in
Income Tax Reference Application Nos.159 -162 of 2011 and
511 of 2004. 15
We do not find any reason to deviate from the
findings of th e larger Bench of the High Court Division
passed in Income Tax Reference Application Nos.159-162 of
2011 and 511 of 2004 which concurred by this Division in
Civil Petition for Leave to Appeal Nos.1896-1900 of 2015.
The judgment and order of the High Court Division so
far it relates to answer s the Question Nos. (i)-(vi) are
set-aside i.e. we affirmed the answers of the Question
Nos.(i)-(vi) in affirmative. And the answers of the High
Court Division relating to answer s of the formulated
Question Nos.(vii) and (viii) are maintained i.e. we also
affirmed answers of the Question Nos.(vii) and (viii).
Distinguishable facts of the instant Civil Appeal No. 74 of
2007 from the facts of other Civil Appeal Nos.111-155 of 2021.
Instant Civil Appeal No. 74 of 2007 was analogously
heard with other Civil Appeal Nos. 111-155 of 2021 by this
Division. But the facts and p oint of law involved in the
Civil Appeal Nos. 111-155 of 2021 are different from
instant Civil Appeal No.74 of 2007.
The appellant university of this Civil Appeal No. 74
of 2007 challenged the decision of the High Court 16
Division relating to the Assessment Y ear 2004-2005, when
Clause 1(a) (3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) was in f ull force of
law. The appellant university of the Civil Appeal No.74
of 2007 asserts that the university is entitled to tax
exemption for the Assessment Year 2004 -2005 under the
prevailing law which is Clause 1(a)(3) of the said SRO
dated 31.12.1980 (as amended by the SRO dated
03.07.2002).
Whereas the rest of the Civil Appeal Nos. 111-155 of
2021 do not essentially involved whether the respective
universities are entitled to exemption under the said
Clause 1(a)(3) of the said SRO dated 31.12.1980 (as
amended by the SRO dated 03.07.2002) . In the Civil Appeal
Nos.111-155 of 2021, the respective universities
challenged the authority of the Government to revoke the
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002). The
said exemption under Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
revoked or rescinded or abolished by dint of the SRO 17
No.156-Ain/Income Tax/2007 dated 28.06.2007 and the
respective university also challenged the authority of
the Government ex empting the private universities from
tax to the tune of 10 % by way of reducing the liability
to pay tax to the tune of 15 % under the SRO No.158 -
Ain/Income Tax/2007 dated 28.06.2007. Moreover, the tax
assessment years involved in the said Civil Appeal
Nos.111-155 of 2021 are all related to tax assessment
years when the said Clause 1(a)(3) of the said SRO dated
31.12.1980 (as amended by the SRO dated 03.07.2002) was
not in force. Hence, the points of law as well as facts
of instant Civil Appeal No.74 of 2007 are distinguishable
and different from Civil Appeal Nos.111-155 of 2021.
Accordingly, the civil appeal is disposed of.
No order as to costs.
J.
J.
J.
J.
The 27th February, 2024.
Jamal/B.R./Words-*3023*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CRIMINAL APPEAL NO. 92 OF 2023
(From the Judgment and order dated 12.10.2023 Passed by
High Court Division in Contempt Rule No. 53467 of 2023)
Mr. Sohel Rana ....Appellant
-Versus-
The state and others ....Respondents
For the Appellants
: Mr. Probir Neogi, Senior Advocate
with Mr. Shah Monjurul Hoque,
Senior Advocate instructed by M s.
Shahanara Begum , Advocate -on-
record
For Respondent No. 1
: Mr. Mohammad Saiful Alam , AAG
(appearing with the leave of the
Court)
For Respondent Nos.
2-3
: Not represented
Date of Hearing : 05.12.2023 and 06.12.2023
Date of Judgment : 06.02.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This criminal appeal is preferred
against the judgment and order dated 12.10.2023
passed by the High Court Division in Contempt Rule
No. 53 467 of 2023 making the Rule absolute,
convicting the appellant for Contempt of Court and
thereby sentencing him to suffer simple imprisonment
for 30 ( thirty) days and to pay a fine of taka 2
5,000/- (five thousand) in default, to suffer simple
imprisonment for 30(thirty) days more.
Facts, in short , are that upon an application
under Section 561A of the Code of Criminal Procedure
the proceeding of Kotwali Police Station Case No. 87
dated 27.03.2017 corresponding to G.R No. 320 of 2017
(Kotwali), pending in th e Court of Chief Judicial
Magistrate, Cumilla was challenged before the High
Court Division. Upon hearing the High Court Division
issued Rule and at the same time stayed all further
proceedings of the aforesaid criminal case for a
period of 06 (six) months. Subsequently, the order of
stay was extended till disposal of the Rule.
The Chief Judicial Magistrate, Cumilla, appellant
herein defying the order of stay passed by the High
Court Division proceeded with the said case and
framed charge against the accused petitioners.
After noting the aforementioned facts and finding
the appellant's explanation unsatisfactory, the High
Court Division proceeded to issue a contempt rule
against him. 3
The High Court Division found contemnor, Mr.
Sohel Rana guilty of gross contempt of Court and made
the Rule absolute by convicting and sentencing him as
aforesaid.
It is noted that knowing fully about the order of
stay of the High Court Division the appellant
proceeded with the aforesaid case pending before him,
fixed dates, on e after another, for charge hearing,
took hajir a (appearance) of the accused and gave
undue pressure upon the accused to bring the result
of the Rule pending before the High Court Division
and lastly, framed charge against the accused
petitioner and at the same time declared another
accused fugitive and then fixed the case for
recording evidence. All those seemingly overzealous
orders were undoubtedly prejudicial to the accused of
the case and were passed in clear violation of order
of stay of the High Court Division.
The appellant, having served as Chief Judicial
Magistrate for several years following a promotion to
Additional District Judge, has accumulated extensive 4
experience in judicial matters over the years.
Therefore, he cannot be regarded as a juni or officer
lacking in experience. However, his actions in the
pending criminal case, as evidenced by his written
explanation, statement, and affidavit seeking
apology, indicate a deficiency in judicial
temperament. Despite his experience, he has
repeatedly committed acts of contempt against the
High Court Division and has persisted in justifying
his behavior.
Form above facts, we find with pain not pleasure
that the appellant has shown wanton disregard,
disrespect, defiance and disobedience in the
implementation of the order of the High Court
Division. Such conduct of the appellant is short of
anything but contumacious. By his conduct he tried to
bring down the authority and majesty of the Supreme
Court in the estimation of the people particularly
those who are coming to this court for redress, so to
say justice. His disregard, defiance and disobedience
to the command and his intention to flout the order 5
of the High Court Division is so deliberate and
contumacious that he does not deserve any mercy or
leniency. His conduct is devoid of any compunction.
Bewildered with severe grief and resentment we
encountered one of the most unprecedented and unusual
instance of criminal act of contempt that was
perpetrated violating the order of stay of the High
Court Division. It came as shock when we found that
in a most abrupt, rather I would put that in an
unexpected manner, the contemnor before us has made
obnoxious order defying the order of the High Court
Division which the said contemnor was
constitutionally bound to comply with.
It is not the case of the appellant that he
misunderstood the order of the High Court Division or
there is ambiguity therein. Because, he did not say a
single word that the court’s order was unclear and
ambiguous.
The trivia and tradition of the Supreme Court are
well identified and preserved. One should not forget
that the hands of the Courts are long enough to catch 6
hold of wrong doers wherever they hide. This is an
unfettered and inherent right attached to the Court.
In addressing the gravity of the situation where
a judge of the subordinate judiciary has
intentionally disobeyed the order of the Apex Court,
the Appellate Division of the Supreme Court of
Bangladesh must exercise its authority with
unwavering diligence. The sanctity of judicial orders
and the integrity of the legal system demand nothing
less than a resolute response to such defiance.
The contemnor before us has rendered
unconditional and unqualified apology. In accepting
the apology offered by the convicted contemnor, the
Appellate Division must emphasize the paramount
importance of respecting and implementing judicial
directives without reservation or hesitation.
Therefore, while extending clemency to the
convicted contemnor, this Division delivers a stern
admonishment to serve as both a reminder and a
warning. This admonishment serves not only to remind
the individual judge of their solemn duty but also to 7
reaffirm the collective obligation of the entire
subordinate judiciary to honor and implement the
directives of t he Apex Court without reservation or
equivocation.
Hence, we hereby absolve and exonerate the
contemnor, Mr. Sohel Rana. Nevertheless, it is
crucial to issue a strong admonition, underscoring
the significance of adhering strictly to directives
from the hi ghest court in the country. It is our
expectation that this incident serves as a lesson for
all judicial officers, reaffirming the principle that
the authority of the judiciary must be respected and
upheld at all times.
Since this is the First Offence of the appellant
and he has solemnly promised never to do any act of
omission in defiance of or in disobedience to any
order of the Supreme Court we have taken a view and
seriously censor and w arn him for his conduct and if
he rep eat such kind of act in futur e he will be
severely dealt with. 8
In the light of the above observations , this
appeal is disposed of . The impugned judgment and
order passed by the High Court Division is hereby set
aside.
CJ.
J.
J.
J.
J.
The 04th February,2024
/Ismail,B.O./*5879*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 138 OF 2009
(Arising out of C.P No. 819 of 2007)
Md. Abdul Hanif @ Abu Hanif and others .... Appellants
-Versus-
Bhupen Nath and others ....Respondents
For the Appellants
: Mr. Md. Nurul Amin, Senior
Advocate instructed by Mr.
Mohammad Ali Azam , Advocate-
on-record
For Respondent Nos. 3, 4,
5(a), 5(b)(i) -5(b)(iii),
5(c) and 5(d)
: Mr. Md. Firoz Shah ,
Advocate-on-record
For Respondent Nos. 1-2,
5(b) and 6-8
: Not represented
Date of Hearing : 23.04.2024 and 24.04.2024
Date of Judgment : 25.04.2024
J U D G M E N T
Md. Ashfaqul Islam, J: This appeal is directed against the
judgment and order dated 20.03.2007 passed by the High
Court Division in Civil Revision No. 4076 of 2000
discharging the Rule affirming the judgment and decree
dated 29.06.2000 passed by the then Subordinate Judge, 1st
Court, Pabna in Title Appeal No.28 of 1992 reversing
those dated 05.10.1991 passed by the Assistant Judge,
Sathia, Pabna in Other Suit No.40 of 1990 decreeing the
suit. 2
The present appellants , the petitioners in civil
revision were impleaded as parties in the lower appellate
Court.
The aforesaid suit was filed for declaration of title
and confirmation of possession over the suit land.
The case of the plaintiffs, in short, is that the
land in CS Khatian No. 300 belonged to Bhim Sarder, who
died leaving son Padda Sarder. Due to arrear of rents the
landlord Binode Bihari Shaha and others filed rent suit
in the Court of the then Munsif, Pabna against Padda
Sarder for realization of rent for the years 1360 -62 B.S.
and subsequently he paid rent to the Landlord and got
"Dakhila". At the time of preparation of S.A. record
Padda Sarder became blind and his 3 sons i.e the
plaintiffs were minor. As a result the suit land was
recorded in the name of Shorot Shundori. That record was
wrong. The plaintiffs have been possessing the suit land
and the defendants have no right, title and possession in
the suit land. The plaintiff No. 1 went to Ataikula
Tahsil Office in the 1st part of Poush 1383 B.S. for
payment of rent and came to learn that the suit lan d was 3
not recorded in their name, and the defendant s claimed
the suit land. Hence the suit was filed.
The defendant Nos. 2 and 3 contested the suit by
filing written statement wherein they admitted the right,
title, interest and possession of the suit land by Bhim
Sarder.
The defendants, in their written statement,
acknowledged Bhim Sarder's possession and Padda Sarder's
subsequent ownership. They also mentioned that Padda had
mortgaged the property in the year 1928 to one Irad Ali
Matbar and took Taka 100/ -. Irad Ali Matbar later
acquired possession of the land through auction since
Padda defaulted on repayment. After obtaining possession,
Irad Ali Matbar transferred the property to Shorot
Shundori. Shorot Shundori, who designated the property as
her Stridhan, subsequently passed away, leaving her son,
Shatin Chandra, as the heir. During her exclusive
possession, Shorot Shundori transferred the land to her
daughter, Sushila Bala's three sons: Dulal, Bhupen, and
Paritosh on 13.05.1970 and delivered possession . T hey
started possessing the suit lands. Dulal died leaving his 4
mother Sushila Bala and two brothers Bhupen and Paritosh
who continued to possess the suit land since then.
The trial Court decreed the suit, leading to an
appeal being Title Appeal No. 28 o f 1992. The lower
appellate Court reversed the decision, prompting the
respondents to seek recourse in a civil revision before
the High Court Division. The High Court Division upheld
the lower appellate Court's decision, leading to the
present appeal.
Mr. Md. Nurul Amin, the learned Senior Advocate for
the appellants argue s that Padda Sarder filed
Miscellaneous Case No.36 of 1941 for setting aside
auction followed by a compromise as evident by exhibit C1
but the Court of Appeal below and the High Court Division
made out a third case that Padda Sarder made a compromise
with Irad Ali admitt ing the auction and thereby erred in
law in discharging the Rule.
He further argues that the Court of Appeal below
committed an error of law for taking into consideration
Exhibit-C1 without noticing that no amendment was made in
the pleading in respect o f the same in violation of 5
provisions of Order 6 Rule 7 of the Code of Civil
Procedure.
Next he submits that the plaintiffs' witnesses PW -1
to P W-6 proved the plaintiffs' cas e. Moreover, defenc e
witness DW-2 also in his examination -in-chief stated
" and in cross-examination deposed that
". But the High Court Division did not
at all consider this vital evidence and also violated the
mandatory provisions of law without discussing any
evidence.
Lastly, he submits that even the case of the
defendants is taken to be true in its entirety; the
compromise decree in Miscellaneous Case No. 36 of 1941 is
not adm issible in evidence as because the same is not
registered under Section 17(2)(VI) of the Registration
Act.
On the other hand , Mr. Md. Firoz Shah, the learned
Advocate-on-record appearing for the respondents made his
submissions supporting the decision of the High Court
Division. He contends that the continuous possession by
the plaintiffs as the heirs of Padda Sarder was not
proved. He further submits that the plaintiffs produced 6
rent receipts of the year of 1385 and 1387 BS but they
failed to produce rent receipts ranging from the year of
1362-1385 BS. Moreover , the plaintiffs did not produce
the nephew of Padda, Rupendranath whose testimony was
very much important as he was in possession of the suit
land on behalf of Padda Sarde r well before the advent of
the plaintiffs in the scenario as the heirs of Padda
Sarder.
He further submits that there is an anomaly in as
much as the plaintiffs claim that they paid the rent for
the suit land as aforesaid but they came to know about
the so -called wrong SA khatian l ater in 1383 BS.
Therefore, the suit is barred by limitation as not being
filed in due time.
He also submits that SA khatian was rightly recorded
in the name of Shorot Shundori as Padda Lal Sarder waived
the claim of the suit land through clause 3 of the
solenama submitted in the Mortgage Suit No. 36/41 filed
in first Munsif Court of Pabna acknowledging the
possession of Irad Ali.(Exhibit C1). After the compromise
decree dated 24.4.42 the claim of Padda Lal Sarder does
not exist on the suit land as the same was waived and 7
duly recorded in the name of Shorot Shundori, the mother
of the defendants.
We have h eard the learned Advocates of both sides
and gone through the judgment s of the Courts below. We
have also perused the evidence on record.
PWs 1-6 deposed confirming the title and possession
of the plaintiffs . Moreover, DW-2 also stated in his
examination-in-chief that " and in
cross-examination stated that ". This
vital aspect o f the evidence of PWs which was also
supported by the defenc e witness No. 2 has a positive
evidential value on the question of possession of the
plaintiffs in the suit land which escaped notice of the
High Court Division.
The defendants’ endeavor to put forward exhibit C1 on
record was erroneous since the same was not in their
pleadings as opposed to Order 6 Rule 7 of the Code of
Civil Procedure.
In the case of 5 BLC AD 108 this Division observed:
“Neither from the averments made in the plaint that
the plaintiff claimed the property in suit as a vested
property nor the learned Subordinate Judge held that the 8
property was a vested property but in spite of absence of
such averments and finding the learned Judges of the High
Court Division have made out a third case in holding that
the property is a vested property which is wrong.”
As already we have mentioned that the consideration
of exhibit C1 by the lower appellate Court was not in the
written statement of the defendant s. Hence, it offends
the provision of Order 6 Rule 7 of the Code of Civil
Procedure which enjoins that the new grounds of claim
those are absent in pleadings should not be allowed to
raise without amendment of pleadings. This statutory
provision of law has been designed as a safeguard so that
one cannot be taken by surprise by the other side at the
time of trial.
The most significant issue of the instant case is
that the trial Court as well as the lower appellate Court
both had recognized that the RS Khatian have been rightly
prepared in the name of the plaintiffs. It is written in
the judgment of the trial Court:
“
9
”
On the other hand lower appellate Court also found:
“
”
The presumption of correctness as to CS record of
rights is not certainly available with regards to the
state acquisition Khatians in pursuance of the provisions
under Section 103(B) of the Bengal Tenancy Act but
subsequently by an amendment in the year 1967 , section
144A was incorporated in the State Acquisition and
Tenancy Act. It is reproduced below:
“Every entry in a record -of-rights prepared or
revised under section 144 shall be evidence of the matter
referred to in such entry, and shall be presumed to be
correct until it is proved by evidence to be incorrect.”
Notably, both the provisions as contemplated in
Section 103(B) of the Bengal Tenancy Act (in respect of
CS Khatian) and Section 144A of the State Acquisition and
Tenancy Act (in respect of RS Khatian) are rebuttable, 10
that is to say, every entry in the Khatians, as the case
may be , shall be presumed to be correct until it is
proved by evidence to be incorrect.
The thrust and the gravamen of the instant case
invariably relates to the question of the entry of the
plaintiffs’ names in the RS Khatian.
In the instant case admittedly RS Khatian was
prepared in the name of plaintiffs. The trial Court as
well as the Appellate Court below clearly mentioned and
admitted regarding the same. We don’t find any positive
steps that have been taken to dislodge the s aid
presumption of correctness from the record, only a feeble
attempt was made by the Court to that effect in its
observations which is as under:
“
”
Therefore, the plaintiffs ’ names in the RS Khatian
stand correct. Certainly this piece of evidence though
rebuttable could not be rebutted by the defendants in due
course. 11
Let us now glean some relevant authorities on the
point:
In the case of Halima Begum vs. Syed Ahmed 21 DLR 854
his lordship Nurul Islam, J observed:
“It is true that record of right indicates
certain right of certain parties but that right
is certainly dependent on some material
evidence, oral and documentary so as to
establish title in favour of persons who claim
under the said record of right. The presumption
of correctness as to CS record of right is not
certainly available with regard to the State
Acquisition Khatians. There is no presumption of
correctness in respect of the State Acquisition
Khatians as it is to be found in case of CS
khatians in pursuance of the provision under
section 103-B of the Bengal Tenancy Act.”
In the case of Government of Bangladesh vs. Tenu Miah
Tofadar 14 LM AD 30 it was observed:
“If we gle an the said provision it transpires
that a finally published record of rights
revised under Section 144(A) of the State
Acquisition and Tenancy Act has a presumption of
correctness and that presumption continues till
it is otherwise rebutted by a reliable evidence.
This proposition of law is well settled. The
oldest record of rights being the cadastral 12
survey prepared under section 103(B)(5) of the
Bengal Tenancy Act (Act No. VIII of 1885) also
got a high presumptive value as to correctness
of entries therein as it has also been enjoined
under section 144(A) of the State Acquisition
and Tenancy Act. Of course this is a rebuttable
peace of presumption, if it has been so rebutted
by evidence. Since the entry of the land in
question as per the State Acquisition and
Tenancy Act recorded in the name of the
government as land, in the absence of any
positive evidence oral and documentary onus was
upon the plaintiff to discharge the presumption
proving the same to be wrongly recorded in the
record of rights bereft of which title and
interest cannot vest upon the plaintiff. The
case of Government of Bangladesh vs. A.K.M Abdul
Hye 56 DLR AD 53 is an authority on this issue.
The decision of High Court Division is totally
devoid of consideration of all these settled
principles of law adversely reversing the lower
appellate Court's judgment committing a palpable
wrong which required to be intervened by this
Division.”
In the case of Md. Hossain vs. Dilder Begum 9 MLR AD
361 it was observed:
“Being aggrieved the petitioners moved the High
Court Division in its revisional jurisdiction in 13
Civil Revision No. 176 of 1990 and obtained a
rule which was discharged and the learned Single
Judge of the High Court Division by his judgment
and order dated 23.05.1999 rejected the
application on the finding that the RS khatian,
exhibit-1, has been prepared in the name of the
predecessors of the plaintiffs to the extent of
1/3rd share and the name of the predecessors of
the defendant petitioners to the extent of 2/3rd
shares. The learned sin gle judge observed that
though there is conflict between the CS and RS
khatians the RS khatian will prevail over the
former.”
The case of the Chief Engineer, Roads and Highway
Directorate vs. Asaduzzaman Siddique 69 DLR AD 440 also
echoed accordingly on the point.
The decision also highlighted:
“Referring the explanation of the Judicial
Committee of Privy Council on the nature of an
entry in a record of right in the ensuing words-
"A record of rights has been described by Sir
Henry Maine as a detailed stat ement of all
rights in land drawn up periodically by the
functionaries employed in setting the claims of
the Government to its shares of the
rental........ Though it does not create a 14
title, it gives rise to a presumption in its
support, which prevails until its correctness is
successfully impugned."
To sum up , we have found that the Court of Appeal
below put special emphasize as to how the defendants
proved their case ignoring the plaintiffs ’ steps of
proving the same on evidence. The law enjoins it is th e
bounden duty of the Court to discuss first how the
plaintiff proved its case to the hilt. In a judicial
proceeding, where all souls solicit justice equally and
are entitled to the same, the plaintiff usually has to
prove its case. In this situation, the plaintiffs ’
ownership of the land is backed by official records more
specifically the RS record of rights. But when the case
went to the lower appellate Court in the appeal, it
didn't give enough importance to these records. E ven
though the lower appellate Court acknowledged the
plaintiffs’ rights supported by the unchallenged RS
record of rights, it didn't impartially and objectively
handle the proceedings to rectify the true ownership of
the suit land. We acknowledge that in the realm of 15
judicial proceedings related to land rights, where the
plaintiff bears the weight of proof, the sanctity of RS
records serves as an unwavering beacon of truth as
cemented by the section 144A of the State Acquisition and
Tenancy Act. We also re cord, since the matter has been
decided to the hilt as aforesaid , question of
registration of solenama (exhibit C1) has become
redundant.
Another point is the question of limitation as
raised. The question of limitation is a mixed question of
fact and law. The submissions of the learned counsel for
the respondents on the question of limitation have no
legs to stand. T he lower appellate Court, in this regard
remained oblivious and for that reason we are of the view
that no deliberation is required to address the point.
The High Court Division absolutely treading on a
wrong premise overlooked all these aspects holding the
decisions of the lower appellate Court to be correct.
Accordingly, this appeal is allowed. The judgment and
order passed by the High Court Division and the lower 16
appellate Court is set aside. The judgment of the trial
Court is restored.
J.
J.
J.
J.
The 25th April, 2024
/Ismail,B.O./*2836*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.128 OF 2016
(From the judgment and decree dated 15.02.2011 passed by the High Court Division in Writ petition
No.7817 of 2009).
Mrs. Aziz Ara Rahman ……..….Appellant
-Versus-
Rajdhani Unnayan Kartipakkha (RAJUK)
and others
.…..….Respondents
For the appellant
: Mr. Kamal-Ul-Alam, senior Advocate with
Ms. Shahana Akther, Advocate, instructed
by Mr. Syed Mahbubor Rahman,
Advocate-on-Record.
For respondents
No.1-4
: Mr. Md. Imam Hasan, Advocate,
instructed by Mr. Mohammad Ali Azam,
Advocate-on-Record.
For the respondent
No. 5
: Not represented.
Date of hearing : The 5th day of December, 2023
Date of judgment : The 6th day of December, 2023
JUDGMENT
Obaidul Hassan, C.J. This Civil Appeal by leave granting order
dated 24.01.2016 in Civil Petition for Leave to Appeal No.1354 of
2011 is directed against the judgment and order dated 15.02.2011
passed by the High Court Division in Writ Petition No.7817 of 2009
discharging the Rule.
The relevant facts necessary for disposal of this Civil Appeal
are, in a nutshell, that the appellant as writ petitioner filed Writ
Petition No.7817 of 2009 before the High Court Division seeking
=2=
direction upon the writ respondents to deliver physical possession
of Plot No.5, Road No.29, Gulshan Residential Area, Dhaka to the
writ petitioner-appellant upon evicting illegal occupant therefrom
and to execute and register the lease deed in respect of the said plot
in favour of the writ petitioner-appellant.
The appellant filed the Writ Petition contending, inter alia, that
she got allotment of the aforesaid plot by Rajdhani Unnayan
Kartripakkha (RAJUK), which was communicated to her vide Memo
dated 16.11.1995. Subsequently, on payment of the entire
consideration money to the tune of Tk.36,87,428.00 (Taka Thirty Six
Lac Eighty Seven Thousand Four Hundred Twenty Eight only)
within the stipulated time the appellant applied for handing over
physical possession of the said allotted plot in her favour on
27.09.2004, whereupon the concerned officer of RAJUK when went
to the said plot for handing over physical possession of the same to
the appellant it was found that a developer firm namely Mega
Builders engaged by writ-respondent No.5 Shamsher Ali Miah had
been illegally possessing the plot and making illegal construction
without obtaining any approved plan from RAJUK. Thereafter, on
03.11.2004 an enquiry committee was constituted by RAJUK to
enquire into the matter and that the said enquiry committee by a
notice dated 29.11.2004 asked the writ-respondent No.5 to appear at
a hearing before the enquiry committee on 03.01.2005 and to submit
written statement with relevant papers. Although the writ
=3=
respondent No.5 primarily appeared before the enquiry committee
and submitted a written statement with some papers but without
waiting for the result of the enquiry and decision of RAJUK thereon
filed another Writ Petition being No.3030 of 2005 on 07.05.2005 in
the High Court Division challenging the validity of the said notice
dated 29.11.2004 and obtained a Rule Nisi and an interim order of
injunction while the appellant got herself added as a respondent in
Writ Petition No.3030 of 2005 and subsequently on 04.07.2005 the
said order of injunction was stayed by this Division in Civil Petition
for Leave to Appeal No.704 of 2009. Later on, the writ respondent
No.5 filed another Writ Petition being No.11099 of 2006 on
16.11.2006 before the High Court Division praying for declaration
that the letter of allotment dated 16.11.1995 issued by RAJUK in
favour of appellant was without lawful authority and of no legal
effect and obtained a Rule Nisi. The appellant as well as RAJUK
opposed both the Rules by filing Affidavit-in-Opposition. Upon
hearing both the Writ Petitions by a Division Bench of the High
Court Division both the Rules were discharged vide two separate
judgments dated 05.11.2007 against which the respondent No.5 filed
Civil Petition for Leave to Appeal No.713 of 2007 and Civil Petition
for Leave to Appeal No.1331 of 2008 before this Division. Upon
hearing both the aforesaid Civil Petitions for Leave to Appeal were
dismissed by this Division vide judgments dated 27.11.2007 and
25.05.2009 respectively. Thereafter the writ-petitioner-appellant
=4=
made several requests and representations to writ-respondents
No.2-4 for handing over physical possession of the aforesaid allotted
plot and to execute lease deed in her favour, but did not get any
response. Lastly, on 05.08.2009 the appellant made a representation
in writing to the Chairman, RAJUK annexing thereto the
aforementioned judgments requesting him to take necessary steps
for handing over physical possession of the allotted plot to her upon
evicting the illegal occupants therefrom and also to execute and
register the lease deed in her favour. But the respondents did not
take any step in this regard, nor make any response thereto. Hence
the writ petitioner-appellant was constrained to file Writ Petition
No.7817 of 2009 before the High Court Division on 17.12.2009 and
obtained Rule and an order of injunction upon the writ respondents
from transferring the disputed plot and from changing the nature
and character of the property for a period of 03(three) months. The
said order of injunction was extended from time to time and lastly
on 15.02.2010 it was extended till disposal of the Rule.
The writ-respondent No.1 herein also respondent No.1-
RAJUK contested the said Writ Petition by filing an Affidavit-in-
opposition and contended that there are 10 apartments including
parking space in the ground floor of the disputed plot which is
occupied by the respondent and others and unless all the occupants
of the flat are evicted therefrom, RAJUK will get no scope to hand
over the vacant possession of the land by executing lease deed.
=5=
On the other hand, the writ-respondent No.5 also respondent
No.5 herein filed affidavit-in-opposition contending, inter alia, that
the land of disputed plot belonged to him which he purchased by
four registered deeds dated 06.06.1980 and got mutated his name in
the said land and paid up to date rent. The Dhaka City Survey was
prepared without any objection by erstwhile DIT now RAJUK in the
name of the respondent No.5 in Khatian No.1649 which is final
proof of his ownership. Subsequently the respondent No.5 entered
into an agreement with a developer company for construction of a
residential building in accordance with the plan approved by
RAJUK. Thereafter, when dispute arose he filed two Writ Petitions
being No.3030 of 2005 and 11099 of 2006 and both the Rules issued
in those Writ Petitions had been discharged on the ground of
maintainability.
Being aggrieved he filed Civil Petitions for Leave to Appeal
No.713 of 2007 and 1331 of 2008 before this Division which were
also dismissed. Subsequently, he filed Title Suit No.373 of 2005
praying for declaration of title to the extent of .1020 acres of land
appertaining to C.S. Plot No.268. Therefore, the present Writ
Petition filed by the appellant is not maintainable during the
pendency of the said suit.
Upon hearing the High Court Division discharged the Rule
vide impugned judgment and order dated 15.02.2011. On being
aggrieved and dissatisfied with the judgment and order dated
=6=
15.02.2011 passed by the High Court Division in Writ Petition
No.7817 of 2009 the appellant filed Civil Petition for Leave to
Appeal No.1354 of 2011 before this Division. Upon hearing on
24.01.2016, this Division granted leave and hence the instant Civil
Appeal.
Mr. Kamal-Ul-Alam, learned senior Counsel appearing on
behalf of the appellant contends that the judgments and orders of
the High Court Division in Writ Petitions No.3030 of 2005 and 11099
of 2006 between the self same parties as affirmed by the judgments
and orders of this Division in Civil Petitions for Leave to Appeal
Nos.713 of 2007 and 1331 of 2008 respectively holding that the
disputed plot allotted to the appellant is not situated in C.S. and S.A.
Plot No.268 as claimed by the respondent No.5 and the said plot has
not been released from acquisition made in L.A. Case No.10/63-64
and as such the High Court Division on the face of the aforesaid
decisions of the Apex Court was in breach of Article 111 of the
Constitution in passing the impugned judgment and order
discharging the Rule issued in Writ Petition No.7817 of 2009. The
learned senior Counsel contends next that the High Court Division
was wholly wrong in law and acted beyond its jurisdiction in not
giving effect to the binding force of the earlier decisions of the
Appellate Division in Civil Petitions for Leave to Appeal No.713 of
2007 and 1331 of 2008 regarding the disputed plot of the case in
hand holding that the aforesaid decisions of the Appellate Division
=7=
although has got binding force but the fact of pendency of Title Suit
No.373 of 2005 filed on 03.09.2005 by the respondent No.5 was not
brought to the notice of the Appellate Division and as such the
impugned judgment is liable to be set aside. The learned senior
Counsel urges next that on the face of the decisions and findings in
the Writ Petition Nos.3030 of 2005 and Writ Petition No.11099 of
2006 as affirmed by the Appellate Division in Civil Petition for
Leave to Appeal No.713 of 2007 and Civil Petition for Leave to
Appeal No.1331 of 2008 to the effect that C.S. Plot No.268 being a
requisitioned and acquisitioned land the occupant therein will be
treated as a trespasser under the principle of law enunciated in 9
BLC(AD)56, and as such the High Court Division was wholly wrong
in law in passing the impugned judgment and order discharging the
Rule holding that the respondent No.5 is in possession of plot
No.268 and as such direction for delivery of possession of the
disputed C.S. Plot No.268 to writ-petitioner-appellant cannot be
given unless the dispute is settled in Title Suit No.373 of 2005. The
learned senior Counsel contends, in fine, that the High Court
Division was wrong in law in discharging the Rule on total
misconception of law as to applicability of the principle of res
judicata in writ proceedings inasmuch as it is settled law that a
decision in earlier writ petitions on the selfsame issues between the
same parties operates as res judicata in subsequent proceedings
either in suits or writ proceedings and a question decided in an
=8=
earlier writ petition disposed of on merit cannot be reagitated in a
subsequent suit between the same parties on the principle of res
judicata.
On the other hand, Mr. Md. Imam Hasan, learned Counsel
appearing for the respondents No.1-4 echoing with the same voice
of the learned Counsel for the appellant submits that RAJUK is the
original owner of the disputed plot by way of acquisition and the
appellant took allotment of the said plot from RAJUK in accordance
with law and RAJUK has no objection if the possession of the plot in
question is handed over to the appellant.
However, none appears on behalf of the respondent No.5 to
contest the appeal.
We have considered the submissions of the learned Counsel
for both the sides, perused the impugned judgment and order dated
15.02.2011 passed by the High Court Division in Writ Petition
No.7817 of 2009 as well as other materials on record.
It is undisputed that earlier the respondent No.5 filed Writ
Petitions No.3030 of 2005 and 11099 of 2006 before the High Court
Division regarding the allotment of the disputed plot in favour of
the appellant but upon hearing both the Rules were discharged vide
judgments and orders dated 05.11.2007. Against the judgment and
order passed in Writ Petition No.3030 of 2005 the respondent No.5
filed Civil Petition for Leave to Appeal No.713 of 2007 before this
Division which was dismissed upon hearing on 27.11.2007.
=9=
Subsequently, while the respondent No.5 filed Civil Petition for
Leave to Appeal No.1331 of 2008 before this Division challenging
the judgment and order dated 05.11.2007 passed by the High Court
Division in Writ Petition No.11099 of 2006 which was also dismissed
on 25.05.2009.
While discharging the Rule in Writ Petition No.11099 of 2006
the High Court Division observed the following:
“It appears from the writ petition that the petitioner
himself admitted that the land was handed over to the
requiring body and in such circumstances the petitioner
cannot claim the land by way of right and admittedly
the said land in question was requisitioned in
accordance with law. So the allegation of discrimination
does not apply in the instant case.
In view of the decisions as referred to and the provision
of law specially the Town Improvement Act 1953 and in
view of the notification dated 30.06.2001 published in
the Bangladesh Gazette on 02.08.2001 it appears that the
land claimed by the petitioner is still a requisitioned
property and in such circumstances the petitioner has no
locus standi to challenge the impugned allotment made
by the requiring body in accordance with law. Hence we
find no merit in this Rule.”
(underlines supplied by us)
Again, the High Court Division observed in the judgment
dated 05.11.2007 passed in the Writ Petition No.3030 of 2005 as
under:
=10=
“Furthermore the petitioner in the instant case miserably
failed to show the nexus in between the plot No.5, Road
No.29, Gulshan Model Town and C.S. Plot No.268 in any
manner. Furthermore the petitioner categorically admits
the said land was requisitioned under L.A. Case as
evident in Annexure-H to the writ petition. He also
failed to show any document that the said plot No.268
was released from requisition by the authority under
any law. From a plain comparison of Annexure- H to the
writ petition with Annexure-I to the affidavit-in-
opposition it appears that only 14.68 acres of land were
released out of 22.50 acres of land in 20 plots, but no
land of plots namely 268, 267 or 270 has been released as
per the gazette notification as evident in Annexure-I and
as such the plot No.268, 267, 270 are still under
requisition. Also the respondent No.2 annexed two
inquiry slip wherein it transpires that the entire C.S. Plot
No.268 has been requisitioned and the admitted
predecessor-in-interest of the petitioner Hazera Khatun
took entire compensation money as per the award
register maintained by the authority and the same is
under direct control of Kartipakkhya. In a case reported
in 9 BLC(AD)56 (Abdul Huq vs. Government of the
People’s Republic of Bangladesh represented by the
Secretary, Ministry of Land and others) their Lordships
observed as follows:
“Though the petitioners have been alleging to be
in possession of the land but their possession are
no better than that of trespassers as upon
requisition of the lands, the authority has taken
=11=
over the possession from the original owners and
handed over to the requiring body that is RAJUK.”
Since none of the plots namely C.S. Plots No.267, 268 or
270 has ever been released from requisition in any
manner and since the impugned order challenged by the
petitioner is mere a notice of appearance for submitting
some papers to resolve a dispute relating to title and
description and since the petitioner appeared and
submitted two written replies therein, the petitioner
cannot get any relief in this Rule as prayed for.”
(underlines supplied by us)
More importantly, this Division while dismissing the Civil
Petition for Leave to Appeal No.1331 of 2008 filed by the respondent
No.5 against the judgment and order dated 05.11.2007 passed by the
High Court Division in Writ Petition No.11099 of 2006 observed the
following:
“We have perused the leave petition as well as the
judgment and order dated 05.11.2007 passed in Writ
Petition No.3030 of 2005 as well as the Annexures-3(C), 4
and 5 at pages 331, 332 and 335 of the paper book and
having regard to the discussion made in the impugned
judgment by the High Court Division and the
submissions of the learned Advocate for the leave-
petitioner we are of the view that the Plot No.5 of Road
No.29 of Gulshan Residential Area is not situated in C.S.
and S.A. Plot No.268 as claimed by the leave petitioner
and the said plot No.268 has not been released from the
acquisition made in L.A. Case No.10/63-64 as claimed
=12=
by the leave-petitioner. Accordingly we do not find any
merit in the leave petition.”
(underlines supplied by us)
It is transparent from the above that the High Court Division
in Writ Petitions No.11099 of 2006 and 3030 of 2005 found that plot
No.5, Road No.29, Gulshan Model Town is not situated in C.S. Plot
No.268 and none of the plots namely C.S. Plots No.267, 268 or 270
has ever been released from requisition in any manner.
Subsequently, this Division upon an elaborate discussion firmly
established the above findings of the High Court Division in Civil
Petition for leave to Appeal No.1331 of 2008 while the Civil Petition
for Leave to Appeal No.713 of 2007 filed by the respondent No.5
against the judgment passed in Writ Petition No.3030 of 2005 was
also dismissed by this Division. In view of the observations made by
this Division in Civil Petition for leave to Appeal No.1331 of 2008 it
is by now finally settled that respondent No.5 cannot claim any
valid right and claim over the land of disputed plot of the case in
hand while the respondent No.1 became the owner of the land of
disputed plot by way of acquisition. Although in the present case
the respondent No.5 claims to be in possession of the disputed plot
in view of the settled legal proposition the status of the respondent
No.5 in the disputed plot is no better than a mere trespasser.
It is the case of the appellant that she took the allotment of the
disputed plot from the respondent No.1, RAJUK vide memo dated
=13=
16.11.1995. Now the pertinent question is that whether the appellant
has acquired a valid right and title of the disputed plot. Since it has
already been settled by this Division that the land of disputed plot
was acquired by RAJUK in accordance with law and the said land
was not delisted from the acquisition, it is our considered view that
the appellant having taken allotment of the same from RAJUK has
acquired a legitimate right and title over it.
There is another facet of the case that is the respondent No.5
instituted Title Suit No.373 of 2005 impleading the appellant as well
as respondent No.1 along with others seeking declaration of title in
the land of the disputed plot. Then a pertinent question arises
whether the principle of res judicata is applicable in Writ Petition. It
transpires from the record that while discharging the Rule issued in
Writ Petition No.7817 of 2009 the High Court Division observed that
the writ petition is not maintainable since a title suit is pending over
the title of the land in question. The learned Counsel for the
appellant strenuously claims that since High Court Division has
already made decision regarding the right and title of the
respondent No.5 in Writ Petitions No.11099 of 2006 and 3030 of 2005
filed by him, the same issue cannot be reopened in the Writ Petition
No.7817 of 2009 inasmuch as it is barred by the principle of res
judicata. In this regard, it is our considered view that the High Court
Division committed illegality in passing the impugned judgment
without taking into consideration that earlier in Writ Petitions
=14=
No.11099 of 2006 and 3030 of 2005 the High Court Division found
that the respondent No.5 has no right and title over the disputed
plot. But in the case in hand, the High Court Division while dealing
with the Writ Petition filed by the appellant held relying on the
claim of the respondent No.5 to the effect that since the case
involves the disputed question of facts as to the title over the
disputed plot the same should be settled in Title Suit No.373 of 2005
filed by the respondent No.5 and as such the Writ Petition is not
maintainable. The above findings of the High Court Division is
absolutely unwarranted inasmuch as the fresh consideration of title
of the respondent No.5 in disputed plot which has already been
decided earlier by the High Court Division in Writ Petitions
No.11099 of 2006 and 3030 of 2005 is barred by the principle of res
judicata.
The rationale behind the principle of res judicata has been
elucidated by the Indian Supreme Court in the case of State of
Karnataka and others vs. All India Manufacturers Organization and
others, AIR 2006 SC 1846. The relevant portion is extracted below:
“32. res judicata is a doctrine based on the larger public
interest and is founded on two grounds: one being the
maxim nemo debet bis vexari pro una et eadem causa (P.
Ramanatha Aiyer, Advanced Law Lexicon (Vol.3 3rd
Edn., 2005) at page 3170.) (“No one ought to be twice
vexed for one and the same cause”) and second, public
policy that there ought to be an end to the same
=15=
litigation (Mulla, Code of Civil Procedure (Vol.1, 15th
Edn., 1995) at page 94. It is well settled that Section 11 of
the Civil Procedure Code, 1908 (hereinafter “the CPC”)
is not the foundation of the principle of res judicata, but
merely statutory recognition thereof and hence, the
Section is not to be considered exhaustive of the general
principle of law. (see Kalipada De v. Dwijapada Das)
The main purpose of the doctrine is that once a matter
has been determined in a former proceeding, it should
not be open to parties to re-agitate the matter again and
again. Section 11 of the CPC recognises this principle
and forbids a court from trying any suit or issue, which
is res judicata, recognising both ‘cause of action estoppel’
and ‘issue estoppel’.”
(underlines supplied by us)
At this juncture, a plausible question albeit carrying a great
importance peeps into our mind whether the principle of res judicata
is applicable in case of a subsequent suit. In this regard, it has been
observed by the Indian Supreme Court in oft-cited case of Gulab
Gulabchand Chhotalal Parikh vs. State of Bombay AIR 1965 SC 1153
that-
“73.................the provisions of section 11 CPC are not
exhaustive with respect to an earlier decision operating
as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit and
that on the general principle of res judicata, any previous
decision on a matter in controversy, decided after full
contest or after affording fair opportunity to the parties
to prove their case by a Court competent to decide it will
=16=
operate as res judicata in a subsequent regular suit.
..........................The nature of the former proceeding is
immaterial.”
(underlines supplied by us)
It appears from the aforesaid decision that any previous
decision on a matter in controversy in a legal proceeding including
writ petition decided after full contest by the parties or after
affording fair opportunity to the parties to prove their case will
operate as res judicata in a subsequent regular suit. Therefore, in
view of the above decision of the Indian Supreme Court we hold
that since the right and title of the respondent No.5 in the disputed
land has not been found by the High Court Division in Writ
Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of
the respondent No.5, subsequent suit being No.373 of 2005
instituted by the respondent No.5 for declaration of title so far as it
relates to the disputed plot claimed by the appellant in Writ Petition
No.7817 of 2009 is barred by the principle of res judicata.
Be that as it may, it transpires from the additional paper book
filed by the appellant that the defendant No.3-appellant filed an
application for rejection of plaint of Title Suit No.373 of 2005 under
Order VII Rule 11 of the Code of Civil Procedure, 1908, but the trial
Court upon hearing on 28.02.2012 rejected the said application.
Challenging the aforesaid order dated 28.02.2012 the appellant filed
Civil Revision No.1516 of 2012 before the High Court Division and
=17=
upon hearing the High Court Division on 15.05.2018 set aside the
order 28.02.2012 passed by the trial Court and allowed the
application for rejection of plaint of Title Suit No.373 of 2005.
While arguing the learned senior Counsel for the appellant
emphatically claims that in Civil Petition for Leave to Appeal
No.1331 of 2008 this Division held that the disputed plot is not
situated in C.S. and S.A. Plot No.268 as claimed by the respondent
No.5 and the said plot has not been released from acquisition made
in L.A. Case No.10/63-64 and as such the High Court Division on
the face of the aforesaid decision of the Apex Court was in breach of
Article 111 of the Constitution. To address the said issue we need to
advert to the provisions of Article 111 of the Constitution of
Bangladesh which enunciates as follows:
“Article 111. The law declared by the Appellate Division
shall be binding on the High Court Division and the law
declared by either division of the Supreme Court shall
be binding on all courts subordinate to it.”
In the case of Secretary, Posts and Telecommunications Division,
Ministry of Posts and another vs. Shudangshu Shekhar Bhadra and others
reported in 25 ALR(AD)(2022) 19 at paragraph 22 this Division very
eloquently stated that:
“...............the provision of Article 111 of the Constitution
enjoining upon all courts below to obey the law laid
down by this Court, judicial discipline requires that the
High Court Division should follow the decision of the
=18=
Appellate Division and that it is necessary for the lower
tiers of courts to accept the decision of the higher tiers as
a binding precedent.
(underlines supplied)
In view of above, it is quite evident that the law declared by
this Division regarding a subject matter is always binding on the
High Court Division as well as other subordinate Courts. Since this
Division in Civil Petition for Leave to Appeal No.1331 of 2008 has
already categorically found that the respondent No.5 has no right
and title in the disputed plot the impugned judgment passed by the
High Court Division violates the provisions of Article 111 of the
Constitution.
In the light of the aforesaid reasons as well as an elaborate
discussion regarding the factual and legal aspects of the case the
impugned judgment and order dated 15.02.2011 passed by the High
Court Division in Writ Petition No.7817 of 2009 warrants
interference by this Division. Therefore, we find merit in the
submissions of the learned senior Counsel for the appellant. In the
prevailing circumstances, the impugned judgment and order of the
High Court Division cannot stand at all in the eye of law.
Accordingly, the instant Civil Appeal is allowed.
The judgment and order dated 15.02.2011 passed by the High
Court Division in Writ Petition No.7817 of 2009 is set aside.
=19=
The respondents No.1-4 are hereby directed to hand over the
possession of plot No.5, Road No.29, Gulshan Residential Area,
Dhaka within 60(sixty) days in favour of the present appellant from
the date of receipt of this order.
The respondents No.1-4 are also directed to complete all legal
formalities including execution of all legal deeds and registration in
favour of the appellant in accordance with law.
C.J.
J.
J.
J.
J.
The 06th day of December, 2023
RRO/Total words- 4,540
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.304 OF 2016
(From the judgment and decree dated 22.02.2011 passed by the High Court Division in First Appeal
No.92 of 2009).
Babru Mia ……..….Appellant
-Versus-
Mosammat Noorjahan Begum and others .…..….Respondents
For the appellant
: Mr. Md. Nurul Amin, senior Advocate
with Mr. A.M. Amin Uddin, senior
Advocate and Mr. Khair Ezaz Maswood,
senior Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For respondents
No.1-2
: Mr. Probir Neogi, senior Advocate with
Mr. Taposh Kumar Biswas, Advocate and
Mr. Sk. Shaifuzzaman, Advocate
instructed by Mr. Sayed Mahbubur
Rahman, Advocate-on-Record.
For respondents
No.3-7
: Not represented.
Dates of hearing : The 10th day of October, 2023 and 14th day
of November, 2023
Date of judgment : The 20th day of November, 2023
JUDGMENT
Obaidul Hassan, C.J. This Civil Appeal by leave granting order
dated 06.03.2016 in Civil Petition for Leave to Appeal No.496 of 2012
is directed against the judgment and decree dated 22.02.2011 passed
by the High Court Division in First Appeal No.92 of 2009 allowing
the appeal and thereby setting aside the judgment and decree dated
=2=
23.02.2009 passed by the learned Joint District Judge, 1st Court, Dhaka
in Title Suit No.213 of 1998 decreeing the suit.
The relevant facts necessary for the disposal of this Civil
Appeal are that the appellant as plaintiff instituted Title Suit No.213
of 1998 for declaration of title and recovery of possession of the land
described in schedule ‘C’ to the plaint. The averment of the plaint are,
in a nutshell, that the land of C.S. Plots No.129 and 130 measuring an
area of .24 acre of land as described in schedule ‘A’ to the plaint
belonged to Khargo Gowala who gifted the same to his son
Deokumar Gowala on 29.11.1912 and delivered possession to him.
Deokumar transferred the same to Norendra Nath Ghosh, who
purchased in the benami of Satish Chandra by registered document
dated 15.07.1914. Subsequently Satish Chandra executed a registered
‘Nadabipatra’ in favour of Narendra Nath on 27.02.1921. Said
Narendra Nath transferred the same to one Prodyut Kumar Ghosh
by registered gift dated 19.11.1937 and said Prodyut subsequently
transferred the ‘A’ schedule land to one Satya Ranjan by registered
sale deed dated 18.12.1947. Said Satya Ranjan granted permanent
lease of the said land to one Hazi Md. Arif by registered deed dated
19.09.1950 and on the same day Satya Ranjan also transferred the rent
receiving interest to Ziaul Haque, who again transferred the rent
receiving interest to Hazi Md. Arif by registered sale deed dated
24.03.1951. Thus, Hazi Md. Arif became the owner of schedule ’A’
=3=
land and got mutated his name by paying rent and accordingly had
been possessing the same for more than twelve years. Thereafter,
Hazi Md. Arif orally settled the land to the plaintiff Babru Mia on
04.01.1953 at annual rent of Tk.150.00 and put him into physical
possession thereof and subsequently the terms and conditions of the
tenancy were embodied in an agreement dated 15.01.1953 and the
same was renewed by another agreement dated 30.12.1958.
The plaintiff erected several huts in Plot No.129 for the
residence of his family and for running business. He also filled up the
pond of C.S. Plot No.130 and constructed huts and single-roofed tin-
shed house thereon and let out one tin-shed room situated on the
schedule-‘B’ land to one Mohiuddin Ahmed by registered deed of
lease dated 09.05.1960 for a period of 8 years. On the same date the
plaintiff let out the schedule-‘C’ property to Abul Kashem, the
predecessor of the defendants by registered lease deed for a period of
8 years. The then Government of East Pakistan acquired some land
out of schedule-‘A’ through L.A. Case No.25 of 1959-60 and prepared
award for the structures in the names of the plaintiff and others. But
the plaintiff raised objection against preparation of award in the
names of others and as such the authority stayed the payment of
compensation money till final decision regarding the right and title of
the land in question by the civil Court. After expiry of the lease
period of Mohiuddin Ahmed in schedule-‘B’ land, he handed over
=4=
possession to the plaintiff and the plaintiff constructed three-storied
building thereon and has been in possession of the same.
It is further stated that one Tara Ram filed Title Suit No.79 of
1964 in the 3rd Court of the then Sub-Judge, Dhaka impleading
Kashem Mia, Mohiuddin Ahmed and the plaintiff as defendants
No.1-3 for declaration of title and recovery of possession in respect of
the land of C.S. Plot No.130. The defendants No.1-3 jointly filed
written statement wherein Kashem Mia and Mohiuddin Ahmed
admitted the plaintiff as their lessor. The said suit was dismissed on
31.05.1968. Fulbashia Muchi, the wife of Tara Ram Jahoara also filed
Pauper Suit No.87 of 1962 in the 3rd Court of the then Sub-Judge,
Dhaka impleading Manik Chand and the plaintiff along with others
for declaration of title and recovery of possession of the land of C.S.
Plot No.129 claiming to be the heirs of Algu Muchi and the said suit
was also dismissed. It is further stated that Manik Chand and others
dispossessed the plaintiff from the hut measuring 18 cubits X 13
cubits situated in Plot No.129 resulting into filing of Title Suit No.05
of 1972 in the 3rd Court of the then Sub-Judge, Dhaka for declaration
of title and recovery of possession and the same was decreed ex parte
and the plaintiff got possession through Court. The land measuring 3
decimals appertaining to C.S. Plots No.129 and 130 was wrongly
recorded in the name of Government in S.A. Khatian against which
the plaintiff filed Title Suit No.273 of 1964 in the 1st Court of the then
=5=
Munsif, Dhaka for declaration of title which was decreed ex parte on
22.05.1969.
The further case of the plaintiff is that after expiry of the lease
period of Abul Kashem he did not vacate the suit property and as
such the plaintiff filed SCC Suit No.02 of 1974 in the then 3rd Court of
Munsif, Dhaka which was subsequently renumbered as SCC Suit
No.01 of 1982. On the other hand, Abul Kashem filed Title Suit No.07
of 1985 in the then 4th Munsif Court, Dhaka against the plaintiff for
cancellation of registered deed of lease dated 09.05.1960 alleging that
the same was obtained fraudulently and the said suit was dismissed
on 30.03.1985. During S.A. operation, the entire land of C.S. Plots
No.129 and 130 was recorded in the name of Hazi Md. Arif in S.A.
Plots No.140-142 and in the remark column of the said Khatian the
possession of the property was noted in the name of the plaintiff
under Hazi Md. Arif. Subsequently, during R.S. operation R.S.
Khatian No.188 was correctly prepared in the name of the plaintiff.
The SCC Suit No.01 of 1982 was decreed on contest on 29.08.1990 and
Md. Abul Kashem filed Civil Revision No.424 of 1991 before the High
Court Division against the said judgment and obtained Rule. During
the pendency of the said Civil Revision Md. Abul Kashem died
leaving behind the defendants and ultimately the Rule was made
absolute by the judgment and decree dated 06.06.1995 and thereby
the decree passed in SCC Suit No.01 of 1982 was set aside. The
=6=
plaintiff preferred Civil Petition for Leave to Appeal No.585 of 1995
before this Division and the same was dismissed by judgment and
order dated 16.05.1996 with the observation that since serious
question of title is involved in the case simple SCC suit was not
maintainable. Meanwhile Abul Kashem and his wife Nurjahan
Begum and son Abdul Matin filed Title Suit No.495 of 1985 in the 3rd
Court of Subordinate Judge, Dhaka against the plaintiff for
declaration of title in the suit property and the suit on transfer was
renumbered as Title Suit No.94 of 1988 and the same was dismissed
for default on 03.06. 1997. The defendants have no title and interest in
the suit property. Abul Kashem was a tenant under the plaintiff and
the defendants are sub-lessee under the plaintiff.
The defendants No.1-3 contested the suit by filing a written
statement denying the averments made in the plaint and contended,
inter alia, that while owned and possessed the suit property by Monu
Mia and Algu Muchi, Abul Kashem entered into possession of the
same in the year 1952 and started a business thereon in the name and
style ‘Matin Restaurant’. Abul Kashem developed the land by earth
filing and made construction thereon at his own cost. A portion of the
suit land along with structures was acquired in L.A. Case No.25 of
1959-60 for construction of the road and notice of acquisition was
issued upon Abul Kashem and his wife and son and they were
accordingly paid compensation. Abul Kashem purchased possession
=7=
of the suit land from Monu Mia by registered deed dated 10.05.1955.
The plaintiff and Mohiuddin also enjoyed some other lands in the
similar way without any title deed. The plaintiff asked Abul Kashem
and Mohiuddin to pay him so that he could bring a title deed from
the real owner migrated to India. Taking advantage of such trust the
plaintiff by practicing fraud and forgery created some false
documents and suggested Abul Kashem and Mohiuddin to make an
amicable deed of partition of the land. But the plaintiff instead of
preparing the partition deed, created the lease deed dated 10.09.1968.
with a view to deceive the illiterate Abul Kashem. The lease deeds in
respect of ‘B’ and ‘C’ schedule property in favour of Mohiuddin and
Kashem were false, fraudulent and void. In fact, the plaintiff and
Mohiuddin and Kashem took possession of three different pieces of
land from its existing possessors Monu Mia and the wife of Algu
Muchi named Fulbashia and subsequently after the death of
Mohiuddin the plaintiff took possession of the land as he died
leaving behind no issue. The alleged decrees passed in Title Suit
Nos.273 of 1964 and 05 of 1972 are fraudulent and collusive. Taking
advantage of simplicity and ignorance of Abul Kashem and
Mohiuddin, the plaintiff got filed written statements by them in Title
Suit No.79 of 1964 and Title Suit No.87 of 1962 against their interests.
The plaintiff obtained ex parte decree in Title Suit No.05 of 1972
fraudulently on false claim that Abul Kashem never entered into the
=8=
suit land on the basis of alleged agreement with the plaintiff. In fact,
Abul Kashem had been in possession of the suit property since the
year 1952. The Khatian prepared in the name of Hazi Arif and the
entry regarding possession of the suit land in the name of the plaintiff
in the remark column was wrong. Abul Kashem and upon his demise
the defendants have been maintaining possession on the suit
property asserting their own right and title therein. They paid rent
and taxes to the city corporation and they never accepted the plaintiff
as landlord nor paid any rent to the plaintiff. The plaintiff is not
entitled to any relief in the instant suit. A competent Court decided
the matter in SCC suit wherein this Division found in Civil Petition
for Leave to Appeal No.585 of 1995 and in Civil Review Petition
No.18 of 1996 that the alleged agreement for lease as claimed by the
plaintiff was not acted upon. Abul Kashem was in possession of the
suit land and upon his demise the defendants have been in exclusive
possession and enjoyment in the suit property within the knowledge
of all. Thus, they have acquired an indefeasible title in the suit
property.
The defendants No.1-3 filed additional written statement
contending that the alleged deed of gift dated 29.11.1912 and the
alleged sale deed dated 15.07.1914 as stated in the plaint do not relate
to the suit property rather those relate to other non-suit land. Deo
Kumar Gowala did not acquire any right, title and possession in the
=9=
suit property by the alleged deed of gift dated 29.11.1912. The
plaintiff, Mohiuddin and Abul Kashem possessed the land of suit
plots No.l29-130 in equal share claiming independent title under
different persons. Abul Kashem and Mohiuddin entrusted the
plaintiff to get their names recorded in the Khatian, but the plaintiff
fraudulently recorded the suit plot in the name of Hazi Md. Arif
showing his name in the column of possession.
Subsequently, the defendants filed two separate additional
written statements wherein they reiterated the facts already stated in
the written statements and additional written statements filed earlier.
The trial Court framed four issues during the trial of the case.
The plaintiff examined himself as only P.W. while the defendants
examined four witnesses as D.Ws. No.1-4. The documentary
evidences adduced by the plaintiff had been marked as Exhibits-1
series to 13 series while those adduced by the defendants had been
marked as Exhibits-A series to K series.
The trial Court on completion of the trial decreed the suit by
judgment and decree dated 23.02.2009. Being aggrieved by the
judgment of the trial Court the defendants No.1-3 preferred First
Appeal No.92 of 2009 before the High Court Division against the
judgment and decree dated 23.02.2009 passed by the trial Court.
Upon final hearing the High Court Division was pleased to allow the
appeal by judgment and decree dated 22.02.2011.
=10=
Being disgruntled with the judgment and decree dated
22.02.2011 passed by the High Court Division in First Appeal No.92
of 2009 the plaintiff as petitioner filed Civil Petition for Leave to
Appeal No.496 of 2012 before this Division and leave was granted on
06.03.2016, hence the instant appeal.
Mr. Md. Nurul Amin along with Mr. A.M. Amin Uddin and
Mr. Khair Ezaz Maswood, all learned senior Counsel appearing on
behalf of the appellants taking us through the judgment and decree
dated 22.02.2011 passed by the High Court Division in First Appeal
No.92 of 2009, judgment and decree of the trial Court as well as the
other materials on record contended that the High Court Division has
committed illegality in totally misconceiving the case of the appellant
upon misreading and misconstruing the evidence and materials on
record and thereby misdirected beyond the law and facts of the case
in passing the erroneous decision allowing the appeal which caused
serious miscarriage of justice and as such the impugned judgment
and decree is liable to be set aside. The learned senior Counsel for the
appellant contended next that the plaintiff filed bundle of documents
to prove his right, title and possession in the suit land and the trial
Court also, on examination and consideration of all those documents
as well as other evidences on record came to clear finding that the
defendants are the lessees under the plaintiff, but the High Court
Division being appellate Court without reversing the findings of the
=11=
trial Court and without considering the materials evidence on record,
allowed the appeal setting aside the judgment of the trial Court. The
learned senior Counsel argued next that the predecessor of
defendants entered into possession of immovable property as a
tenant of the plaintiff and as such the defendants cannot deny the
title of the plaintiff. Moreover, the defendants admitted the plaintiff’s
title in Exhibits-8(a),10,11 and 11(a), but the defendants self-
contradictorily challenged the title of plaintiff, for which the
defendants are estopped from denying the title of the plaintiff in the
suit land. The learned senior Counsel contented further that the
appellate Court as the final Court of facts ought to have discussed all
the documentary evidences adduced by the plaintiff which is a clear
violation of law under Order XI Rule 33 of the Code of Civil
Procedure and the appellate Court as the final Court of facts should
have discussed each and every documents and as such the High
Court Division erred in law in allowing the appeal. The learned
senior Counsel argued next that despite the plaintiff did not plead
the case of adverse possession specifically in the plaint and the trial
Court did not frame any issue regarding adverse possession, but
during trial of the case sufficient evidence was brought on record
from which it is crystal clear that the plaintiff acquired title in the suit
land by virtue of adverse possession and in the aforesaid
circumstances the trial Court did not commit any illegality in finding
=12=
plaintiff’s title in the suit land by adverse possession but the High
Court Division most illegally set aside the said findings of the trial
Court on the mere reasoning that the plaintiff did not plead any case
of acquiring title by adverse possession ignoring the overwhelming
evidence on record proving plaintiff’s title in the suit land by adverse
possession. The learned senior Counsel submitted next that the
findings in SCC suit is not binding in a regular title suit and as such
in the case in hand the findings of this Division regarding the
previous SCC suit cannot have any negative effect and as such the
impugned judgment and decree is liable to be scraped. In support of
their submissions the learned senior Counsel for the appellants
referred some precedents reported in 24 BLD(AD) 43; 24 BLD(HCD)
243; 8 BLT(AD) 185; 39 DLR(AD) 78; 26 BLT(AD) 375; 16 DLR(SC)287.
Per contra, Mr. Probir Neogi, learned senior Advocate along
with Mr. Taposh Kumar Biswas, Advocate and Mr. Sk.
Shaifuzzaman, Advocate appearing on behalf of the respondents
No.1-2 contended that even the trial Court found that the basic
documents of the plaintiff dated 15.01.1953 and 30.12.1958 (Exhibits-3
and 3(a) respectively) did not confer any title to the plaintiff being
apparently invalid and void documents and as such the claim of the
plaintiff that the property which he acquired through Exhibit-3 series
was settled to defendants by Exhibit-4(a) dated 09.05.1960 holding
them as lessees under plaintiff falls through. The learned senior
=13=
Counsel for the respondents No.1-2 argued next that the case of the
plaintiff was denied by the defendants from its very inception and
the instant suit for declaration of title and recovery of possession was
not corroborated by any oral evidence while P.W.-1 is always
considered as an interested witness and nobody came before the
Court to prove the documentary evidence filed by the plaintiffs and
mere filing of the documents does not ipso facto means that those
were proved in evidence. Moreover, the finding of the trial Court that
the lease deed dated 09.05.1960 (Exhibit-4(a)) is a valid document
went against the finding of this Division made in Civil Petition for
Leave to Appeal No.585 of 1995 and Civil Review Petition No.18 of
1996. The learned senior Counsel for the respondents No.1-2
contended further that the claim of the plaintiff to the effect that he
entered into possession of the suit land in 1953 by virtue of Exhibit-3
from his vendor Hazi Arif but Hazi Arif is neither a witness nor a
party to the suit and there is nothing in evidence to show that the
plaintiff ever entered into the suit land in 1953 and no time and place
is mentioned in the pleading and no evidence is also available on the
record to prove the entry of the plaintiff in the suit land. The High
Court Division on consideration of Exhibits-7, Exhibits-C,C(1),C(2) &
F(1) found that defendants entered into the suit land before the
execution of alleged deed dated 09.05.1960 (Exhibit-4(a)) while the
possession of the plaintiff since 1953 has not been proved. The
=14=
learned senior Counsel for the respondents No.1-2 submitted next
that the High Court Division rightly found that declaration of title
and claim of adverse possession by the plaintiff cannot run
simultaneously and the second thought on the claim of possessory
right through the possession of the defendants as lessee or licencee
does not arise at all because in such event there would be a definite
case of possession followed by dispossession, moreover since Exhibit-
3 series were found by both the trial Court and the High Court
Division as invalid and void documents the possession of the
defendants in the suit land as lessee does not merit consideration and
as such the judgment passed by the High Court Division does not
warrant interference by this Division. The learned senior Counsel for
the respondents No.1-2 submitted next that the trial Court failed to
consider that the alleged claim of the plaintiff with respect to getting
into possession in the suit land in 1953 from Hazi Arif does never
mean hostile, thus the finding of trial Court on adverse possession of
the plaintiff in the suit land was misconceived specially when Hazi
Arif is not a party to the suit. The learned senior Counsel for the
respondents No.1-2 contended lastly that the judgment of the trial
Court is patently indicative of non-application of judicial minds to
the pleadings and evidences led by the parties in their true
perspectives and the High Court Division with the proper scrutiny
most legally allowed the appeal and as such the instant appeal is
=15=
liable to be dismissed. The learned senior Counsel for the
respondents No.1-2 relied on several case laws reported in 42
DLR(AD)154; 51 DLR(AD) 172; 5 BLD(AD)33; 51 DLR(AD) 257; 35
DLR(AD) 182 and 46 DLR(AD) 46.
We have perused the judgment and decree dated 22.02.2011
passed by the High Court Division in First Appeal No.92 of 2009. We
have also considered the submissions of the learned Counsel for both
sides and gone through the judgment and decree of the trial Court,
evidences as well as other materials on record.
The case of the plaintiff-appellant is that Hazi Md. Arif was the
owner of the suit land who orally settled the same to the plaintiff
Babru Mia on 04.01.1953 at annual rent of Tk.150.00 and inducted
him into physical possession of the suit land. Subsequently, the terms
and conditions of the tenancy were embodied in an agreement dated
15.01.1953 and the same was renewed by another agreement dated
30.12.1958. The plaintiff filed the lease deed dated 15.01.1953 (Exhibit-
3) and lease deed dated 30.12.1958 (Exhibit-3(a)). Those lease deeds
appear to be unregistered. The plaintiff claims acquisition of title of
the suit land by way of oral lease deeds. Admittedly, the suit land is
non-agricultural land and situated within the municipal area. Now
an important question arises whether the plaintiff acquired title by
virtue of the aforesaid unregistered lease deeds.
=16=
In this regard the trial Court referred the case of Khondker Ansar
Ahmed and others Vs. A.T.M. Monsur Ali Mallik and others reported in
60 DLR(AD) 33 where it was held in the following-
“It is the settled principle of Law that settlement of Non-
Agricultural land within Municipality cannot be effected
by unregistered document. The same must be effected by
bilateral registered document executed by both the lessor
and the lessee.”
(underlines supplied by us)
In view of the above proposition of law the trial Court observed
as follows:
registered deed
(underlines supplied by us)
The High Court Division also upheld the same view of the trial
Court. Having taking into consideration of the above settled position
of law we endorse the findings of the High Court Division on that
score. Therefore, it is unerringly found that the plaintiff could not
acquire title in the suit land on the basis of unregistered lease
agreement.
Moreover, from the recital of the unregistered agreement dated
15.01.1953 (Exhibit-3) it is apparent that by virtue of the so-called oral
agreement there was no settlement of the suit land by Hazi Md. Arif
=17=
to the plaintiff rather he was merely permitted to use and occupy the
said land for six years from the fourth day of January, 1953.
Subsequently, the permission to use the land was renewed for further
ten years by way of unregistered agreement dated 30.12.1958
(Exhibit-3(a)). Thus, there was no form of settlement at all in favour
of the plaintiff by way of Exhibits-3 and 3(a).
The plaintiff claims further that he leased out the ‘B’ and ‘C’
schedule property to one Mohiuddin Ahmed and the predecessor of
the defendants Abul Kasem by way of two registered lease deeds
dated 09.05.1960. Those lease deeds had been marked as Exhibits-4
and 4(a). On plain reading of those lease deeds it appears that those
were executed for eight years and although Mohiuddin Ahmed was
an attesting witness in Exhibit-4(a), Abul Kasem was not made an
attesting witness in the lease deed i.e. Exhibit-4 which creates a
suspicion on the aforesaid claim of giving lease by the plaintiff.
Referring the written statement (Exhibit-8(a) filed by
Mohiuddin Ahmed and Abul Kasem in Title Suit No.79 of 1964
instituted by one Tara Ram the plaintiff claims that said Mohiuddin
Ahmed and Abul Kasem were lessees under the plaintiff Babru Mia.
The plaintiff claims further that the predecessor of the defendants
Abul Kasem himself instituted Title Suit No.7 of 1985 in the then 4th
Court of Munsif, Dhaka against the plaintiff for declaration that the
lease deed dated 09.05.1960 was obtained by practicing fraud. But the
=18=
suit was dismissed on contest by judgment and decree dated
30.03.1985 (Exhibit-10). Thus, relying on Exhibits-8(a) and 10 the
plaintiff claims that the predecessor of the defendants Abul Kasem
was lessee under the plaintiff. It is palpable from Exhibit-10 that Title
Suit No.7 of 1985 was instituted challenging the legality of lease deed
dated 09.05.1960 and the said suit was dismissed on 30.03.1986. But
before dismissal of the said suit the lease period for eight years
expired automatically due to which the lease deed dated 09.05.1960
lost its validity much before the institution of the Title Suit No.7 of
1985. In the aforesaid backdrop, the plaintiff’s claim to the effect that
the predecessor of the defendant Abul Kasem was a lessee under the
plaintiff cannot stand at all.
Regarding the filing of written statement by the predecessor of
defendants Abul Kasem and Mohiuddin Ahmed admitting
themselves as lessees under the plaintiff in Title Suit No.79 of 1964
the defendants contend that taking the advantage of illiteracy of their
predecessor Abul Kasem the plaintiff Babru Mia managed to insert a
sentence in the written statement filed by Mohiuddin Ahmed and
Abul Kasem admitting the plaintiff as lessor. But unless the claim of
the plaintiff as to the giving lease of the suit land to the defendants is
proved with other reliable evidence the aforesaid plea in the written
statement cannot give the plaintiff a benefit of dispensing with the
proof of his title and possession in the suit land.
=19=
It divulges from the record that although the trial Court did not
find title of the plaintiff in the suit land it made a self-contradictory
observation to the effect that the plaintiff acquired title by adverse
possession in the way that the plaintiff taking over possession of the
suit land by lease deed from Hazi Md. Arif and he did not challenge
the peaceful possession of the plaintiff. In fact, it is the moot point on
which the total case hinges on. At this point, let us expatiate our
discussions on the said point.
Admittedly, the plaintiff has neither pleaded acquiring title by
adverse possession nor instituted the suit praying for declaration of
title by adverse possession and accordingly no issue was framed
regarding acquiring title by the plaintiff by way of adverse
possession. As regards the framing of issue Order XIV Rule 1 of the
Code of Civil Procedure lays down the following:
“1. (1) Issues arise when a material proposition of
fact or law is affirmed by the one party and denied
by the other.
(2) Material propositions are those propositions of
law or fact which a plaintiff must allege in order to
show a right to sue or a defendant must allege in
order to constitute his defence.
(3) Each material proposition affirmed by one party
and denied by the other shall form the subject of a
distinct issue.
(underlines supplied by us)
=20=
In view of the above provisions of law, it is transparent that
where a party claims title by adverse possession in the pleadings and
the other party denies it the Court frames an issue regarding the
adverse possession. But in the case in hand since the plaintiff did not
assert the claim of adverse possession the defendants were not
needed to deny the claim of adverse possession in the written
statement. Therefore, there was no occasion to frame an issue as
regards adverse possession.
It is worthwhile to know what the plaintiff is required to prove
in a case of adverse possession. By referring the case of Ejaz Ali
Qidwai Vs. Special Manager, Court of Wards, Balirampur Estate AIR
1935 PC 53, it has been enunciated in the case of Abdul Kader and
Others vs. A.K. Noor Mohammad and others reported in 36 DLR(AD)
(1984) 261 as follows:
“21. In Ejaz Ali Qidwai V. Special Manager, Court of
Wards, Balirampur Estate, AIR 1935 PC 53, the Judicial
Committee of the Privy Council, while referring to the
principle of law regarding adverse possession observed
that:
a person, who bases his title on adverse possession,
must show by clear and unequivocal evidence that
his possession was hostile to the real owner and
amounted to a denial of his title to the property
claimed. This onus the appellants have failed to
discharge.”
(underlines supplied by us)
=21=
It has been further observed in the case of Salma Khatun and
others vs. Zilla Parishad, Chittagong reported in 51 DLR(AD) 257 that-
“4.......................................When they are in possession
claiming raiyati settlement they cannot set up adverse
possession either..............................”
(underlines supplied by us)
It is transparent from the above that where the plaintiff claims
acquiring of title by adverse possession he must show by clear and
unequivocal evidence that his possession was hostile to the original
owner. But in the case in hand the plaintiff never ever claimed his
possession repugnant to his vendor Hazi Md. Arif rather he asserts
his title and possession by oral lease from Hazi Md. Arif.
In the given facts and circumstances, the trial Court was not
required to frame an issue on adverse possession. Accordingly, the
plaintiff is not entitled to set up a case of adverse possession in the
suit land. Having considered the averments and prayers made in the
plaint of the case vis-à-vis the issues framed during trial as well as the
evidences led by the plaintiff, the finding of trial Court on plaintiff’s
title by adverse possession is ex facie gratuitous relief.
It has been held by this Division in the case of Mahaprabhu Ram
vs. Gopal Ram Ram and others reported in 10 BLD (AD) 94 that-
“16. The appellant prayed for partition never on the basis
that he or his predecessor acquired title to the suit
property by adverse possession. Title by adverse
possession has to be specifically pleaded and proved. The
=22=
appellant’s case was one of acquisition of title by
settlement. The trial Court found that the case of
settlement has not been proved, but it conferred title on
the appellant on a gratuitous finding of adverse
possession in his favour, unwarranted by pleadings. This
gratuitous conferment of title was uncalled for in a suit
for partition where the plaintiffs claim of title is to be
looked into incidentally. If the precise title to which he
lays his claim is not supported by the evidence on record,
the Court cannot find out another source of title for the
plaintiff by way of gratuitous relief. Hence on all counts
we find that the impugned judgment does not merit any
interference.”
(underlines supplied by us)
In the case of Bangladesh Parjatan Corporation and others vs.
Mofizur Rahman and others reported in 46 DLR(AD) 46 it is held that-
“19. This principle of estoppel is stated in another form
when it is said that party litigant cannot be permitted to
assume inconsistent positions in court, to play fast and
loose, to blow hot and cold, to approbate and reprobate to
the detriment of his opponent. In the case of Ambu Nair
Vs. Kelu Nair, AIR 1933 P.C. Page 167, the principle was
quoted from Smith Vs. Baker, 8 C.P. 350 as follows:
A person cannot “at the same time blow hot and
cold. He cannot say at one time that the transaction
is valid and thereby obtain some advantage to
which he could only be entitled on the footing that
it is valid, and at another say it is void for the
purpose of securing some further advantage.”
(underlines supplied by us)
=23=
That apart since the plaintiff claims his title from his vendor
Hazi Md. Arif the plaintiff ought to implead his vendor in the present
suit in case of getting decree on the basis of adverse possession.
Although Hazi Md. Arif was a necessary party in the suit he was not
impleaded as party and it is settled law that a decree on adverse
possession cannot be passed in absence of a necessary party to the
suit. But the trial Court most illegally established the title of the
plaintiff by way of adverse possession.
It is undeniable that the High Court Division being the
appellate Court had power to grant relief to the plaintiff regarding
the adverse possession in the suit land under Order XL Rule 33 of the
Code of Civil Procedure, where the plaintiff made out a case to grant
such relief, but failed to pray for such relief in categorical terms. But
in the case in hand, the plaintiff utterly failed to make out a case for
adverse possession either in the pleadings or in the whole evidences
on record. In Hefzur Rahman (Md) vs. Shamsun Nahar Begum and
another reported in 51 DLR(AD) 172 it has been observed by this
Division in the following:
“60. The law requires that the relief must be specifically
claimed either simply or in the alternative. It is true that
general or other relief which the Court may think just
may be granted although not specifically asked for. But
the essential conditions are that, the averments in the
plaint must justify such relief and the defendant must get
an opportunity to contest such relief. In the name of
=24=
granting general or other relief the Court cannot and
would not mount any surprise on the defendant and
make him liable for something which does not arise out of
the plaint and, as such, he had no occasion to answer the
same. This is merely an extension of the principle of
natural justice.”
(underlines supplied by us)
In view of the above proposition of law, the High Court
Division rightly rejected the decree of adverse possession in favour of
the plaintiff-appellant since the plaintiff could not make out a case of
adverse possession within the four corners of plaint.
From the certified copy of the judgment of Civil Petition for
Leave to Appeal No.585 of 1995 (Exhibit-13(a)) it is evident that the
plaintiff-appellant filed SCC Suit No.02 of 1974 which was
renumbered as SCC. Suit No.1 of 1982 against the predecessor of the
defendant Abul Kasem claiming him a tenant under him by way of
lease deed dated 09.05.1960 (Exhibit-4(a)). Although the SCC Suit was
decreed the High Court Division set aside the judgment and decree
of the trial Court in Civil Revision No.424 of 1991. Against which the
appellant filed Civil Petition for Leave to Appeal No.585 of 1995
which was dismissed by this Division on 16.05.1996. This Division
found in the said judgment that the lease deed dated 09.05.1960 was
not acted upon inasmuch as admittedly there was no payment of rent
in terms of the said lease deed. The aforesaid findings of this Division
is binding upon all Courts including the trial Court as well as trial
=25=
Court according to the provisions of Article 111 of the Constitution.
But the trial Court committed error of law and facts in relying on the
lease deed dated 09.05.1960 (Exhibit-4(a)) which is violative of Article
111 of the Constitution.
On the other hand, the defendants claim that their predecessor
Abul Kashem was inducted into the possession of the suit land
through Manu Mia in the year 1952. D.Ws.1-4 categorically stated in
their testimony that Abul Kashem came into the possession of the
suit land since the year 1952.
The plaintiff by adducing the order sheet of L.A. Case No.25 of
1959-60 (Exhibit-7) claims that by order dated 23.08.1960 the
authority held that the compensation for acquisition cannot be given
without adjudication of right, title and interest of the respective
parties in the competent Court. The defendants refuted the said
argument by referring the order dated 05.12.1959 (Exhibit-C) passed
in L.A. Case No.25/59-60 from which it appears that the authority
directed the defendant No.1 Nurjahan Begum on 05.12.1959 to hand
over possession of the suit land to it by 15.12.1959. Thus, it is evident
that the predecessor of the defendants Abul Kashem and his wife
Nurjahan Begum were in possession of the suit land before 1960.
From the memos dated 27.04.1960 (Exhibits-C(1) and C(2) it is seen
that the acquiring authority asked the defendant Abul Kashem and
his wife Nurjahan Begum to provide the name of the co-sharers, if
=26=
any in the suit property. Memo dated 22.11.1960 (Exhibit-F(1)) issued
by the Dhaka WASA to Md. Abul Kashem shows that as per his
application dated 09.01.1960 the authority allowed him to take water
connection in his structure in the name and style Matin Restaurant,
Bijoynagar situated in C.S. Plot No.129. All the aforesaid
documentary evidences clearly show that the defendants’
predecessor had been in possession of the suit land long before
execution of so-called lease deed by the plaintiff on 09.05.1960.
The plaintiff except himself as P.W.1 could not examine any
neutral witness to corroborate his claim to the effect that the
defendant’s predecessor Abul Kashem was inducted into possession
of the suit land on the basis of the lease deed dated 09.05.1960. The
plaintiff also could not prove that he is in possession of the suit land
taking oral settlement from Hazi Md. Arif in the year 1953.
In the light of the foregoing discussions, we find that the
plaintiff did not acquire title and possession in the suit land and the
defendants were never lessee under the plaintiff but the trial Court
without proper appraisal of the oral as well as documentary evidence
available on the record decreed the suit and while the High Court
Division lawfully set aside the judgment and decree of the trial
Court. We do not find any deviation in the impugned judgment and
decree of the High Court Division. In view of the reasons stated
above and in the light of the above discussions, it does not warrant
=27=
interference with the impugned judgment and decree dated
22.02.2011 passed by the High Court Division in First Appeal No.92
of 2009. Therefore, we do not find any merit in the submissions of the
learned counsel for the appellants and as such the instant Civil
Appeal is liable to be dismissed.
Consequently, the instant Civil Appeal is dismissed without
any order as to costs.
C.J.
J.
J.
J.
J.
J.
The 20th day of November, 2023
RRO; Total words- 6,581
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS.111-155 OF 2021.
(From the judgment and order dated 09.05.2016 passed by the High
Court Division in Writ Petition Nos.9562-9564 of 2008, 9566-9567
of 2008, 11545 of 2015, 2110 of 2013, 6861 of 2012, 10929 of
2014, 8187 of 2015, 8930 of 2011, 11546 of 2015, 3681 -3682 of
2013, 1969 of 2009, 2682 of 2016, 6404 of 2014, 4049 of 2013,
8507 of 2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of 2014,
14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of 2013, 9733 of
2015, 9934 of 2015, 12558 of 2012, 986 -987 of 2011, 4878 of 2013,
10769 of 2014, 8697 of 2011, 5795 of 2014, 2510 of 2015, 3371 of
2015, 6177 of 2013, 1131 of 2009, 8985 of 2010, 11840 of 2015 ,
4048 of 2013, 12885 of 2015 and 1891 of 2015 respectively).
The Government of Bangladesh, represented
by the Secretary, Ministry of Finance,
Internal Resources Division, Bangladesh
Secretariat, Ramna, Dhaka and others.
: ...Appellants.
(in C.A. Nos.111-155 of 2007)
-Versus-
North South University, Dhaka. : ...Respondent.
(in C.A. Nos.111-112, 115,
117,120,146 & 153 of 2021)
International University of Business
Agriculture and Technology (IUBAT),
Uttara, Dhaka.
: ...Respondent.
(in C.A. Nos.113-114,
136,138 & 141 of 2021)
Independent University of Bangladesh,
Bashundhara, Dhaka.
: ...Respondent.
(in C.A. Nos.116 & 137 of 2021)
World University of Bangladesh,
represented by its Associate Professor
Dr. Abdul Mannan Choudhury.
: ...Respondent.
(in C.A. No.118 of 2021)
The University of Liberal Arts
Bangladesh, represented by its
Registrar Mr. Kamal Khan and another.
: ...Respondents.
(in C.A. Nos.119,121-122
& 143 of 2021)
The University of Asia Pacific,
Dhanmondi, Dhaka and another.
: ...Respondents.
(in C.A. No.123 of 2021)
World University of Bangladesh, represented by
the member Secretary of its Board of Trustee,
Associate Professor Dr. Musfiq Mannan Choudhury.
: ...Respondent.
(in C.A. Nos.124,131 &
134 of 2021) 2
The University of Liberal Arts
Bangladesh, represented by its Registrar
Mr. Md. Foyzul Islam and another.
: ...Respondents.
(in C.A. No.125 of 2021)
Eastern University, Dhanmondi, Dhaka and others. : ...Respondents.
(in C.A. Nos.126 & 135 of 2021)
North South University, Dhaka and another. : ...Respondent.
(in C.A. Nos.127 & 142 of 2021)
The University of Asia Pacific, represented by
its Registrar, Dhanmondi, Dhaka.
: ...Respondent.
(in C.A. Nos.128,133,139-
140,147 & 149 of 2021)
International University of Business
and Agriculture and Technology (IUBAT),
Uttara, Dhaka and another.
: ...Respondents.
(in C.A. Noa.129-130 &
144 of 2021)
Eastern University, Dhanmondi, Dhaka. : ...Respondent.
(in C.A. No.132 of 2021)
Daffodil International University,
represented by its Registrar and others.
: ...Respondents.
(in C.A. No.145 of 2021)
Asian University of Bangladesh, represented
by its Vice-Chancellor, Uttara, Dhaka.
: ...Respondent.
(in C.A. No.148 of 2021)
Ahsanullah University of Science and
Technology, Dhaka and another.
: ...Respondents.
(in C.A. No.150 of 2021)
Southeast University, represented by
its Vice-Chancellor, Banani, Dhaka.
: ...Respondent.
(in C.A. No.151 of 2021)
Eastern University, Dhanmondi, Dhaka and others. : ...Respondents.
(in C.A. No.152 of 2021)
The University of Liberal Arts Bangladesh,
represented by its Registrar Mr. Md. Foyzul Islam.
: ...Respondent.
(in C.A. No.154 of 2021)
Southern University Bangladesh,
represented by its Treasurer and others.
: ...Respondents.
(in C.A. No.155 of 2021)
For the Appellants.
(In C.A. Nos.111-155 of 2021)
: Mr. A.M. Amin Uddin , Attorney
General with Mr. Samarendra Nath
Biswas, Deputy Attorney General,
Ms. Mahfuza Begum, Deputy Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General and Ms.
Farzana Rahman Shampa, Assistant
Attorney General instructed by Mr.
Haridas Paul, Advocate-on-Record.
For the Respondents.
(In C.A. Nos.111 -112, 115, 117,
120, 127, 142, 146 & 153 of 2021)
: Mr. A.F. Hassan Ariff, Senior
Advocate with Mr. Fida M. Kamal ,
Senior Advocate and Mr. Muhammad
Sakhawat Hossain , Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record. 3
For the Respondents.
(In C.A. Nos.113 -114, 129 -130,
136, 138, 141 & 150 of 2021)
: Mr. Muhammad Sakhawat Hossain,
Advocate instructed by Mr. Md.
Taufique Hossain, Advocate-on-Record.
For the Respondent.
(In C.A. No.144 of 2021)
: Mr. Md. Taufique Hossain, Advocate-on-Record.
For the Respondents.
(In C.A. Nos.118-119, 121-122, 124-
125, 131 ,134, 143 & 154 of 2021)
: Mr. Omar Sadat, Advocate instructed
by Ms. Madhumalati Chowdhury Barua,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos. 123, 128, 133,
139-140 & 149 of 2021)
: Mr. Probir Neogi, Senior Advocate
with Mr. Md. Abdur Razzak, Advocate
instructed by M r. Zainul Abedin ,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos.116 & 137 of 2021)
: Mr. Rokanuddin Mahmud, Senior Advocate
with Mr. Mustafizur Rahma n Khan, Senior
Advocate and Mr. Abul Kalam Azad ,
Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For the Respondents.
(In C.A. Nos. 126, 132, 135,
147-148 & 152 of 2021)
: Not represented.
For the Respondent.
(In C.A. No.151 of 2021)
: Mr. A.F. Hassan Ariff, Senior Advocate
with Mr. Munshi Moniruzzaman, Advocate
and Mr. Md. Ashik -Al-Jalil, Advocate
instructed by Ms. Mahmuda Begum,
Advocate-on-Record.
For the Respondents.
(In C.A. Nos.145 & 155 of 2021)
: Mr. Mohammed Mutahar Hossain, Advocate
instructed by Mr. Nurul Islam Bhuiyan,
Advocate-on-Record (Dead).
Date of Hearing. : The 25th & 27th February, 2024.
Date of Judgment. : The 27th February, 2024.
J U D G M E N T
Borhanuddin,J: These civil appeals by leave are directed
against a common judgment and order dated 05.09.2016
passed by the High Court Division in Writ Petition
Nos.9562-9564 of 2008, of 2008, 9566 -9567 of 2008, 11545
of 2015, 2110 of 2013, 6861 of 2012, 10929 of 2014, 8187 4
of 2015, 8930 of 2011, 11 546 of 2015, 3681-3682 of 2013,
1969 of 2009, 2682 of 2016, 6404 of 2014, 4049 of 2013,
8507 of 2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of
2014, 14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of
2013, 9733 of 2015, 9934 of 2015, 12558 of 2012, 986 -987
of 2011, 4878 of 2013, 10769 of 2014, 8697 of 2011, 5795
of 2014, 2510 of 2015, 3371 of 2015, 6177 of 2013, 1131
of 2009, 8985 of 2010, 11840 of 2015, 4048 of 2013, 12885
of 2015 and 1891 of 2015 making all the Rules absolute
with direction.
Since all the appeals originated from a common
judgment and order passed in aforesaid writ petitions
involving identical point of law based on similar facts
as such all the civil appeals have been taken together
for hearing and disposed of by this single judgment.
Facts relevant for disposal of the appeals are that
the Rules in the afore mentioned writ petitions were
basically issued in two fold terms, namely, calling upon
the writ respondents including the Government of
Bangladesh to show cause as to why the SRO No. 156-
Ain/Aikor/2007 dated 28.06.2007 and SRO No.158 -5
Ain/Aikor/2007 dated 28.06.2007 issued by the Government
under Section 44(4)(b) of the Income Tax Ordinance, 1984
(hereafter referred to as ‘the Ordinance, 1984’)
withdrawing the tax exemptions infavour of the writ
petitioner universities/educational institutions and
thereby imposing 15 % tax on their income relating to
assessment years 2008-2009 to 2010-2011 and as to why the
SRO No.268-Ain/Aikor/2010 dated 01.07.2010 issued by the
Government under the sam e provisions purportedly re -
fixing the tax pay able by said writ -petitioners @15% in
respect of a ssessment year 2011 -2012 and on wards should
not be declared to be without lawful authority and are of
no legal effect and as to why the respective assessment
orders followed by demand notices as well as notices
demanding advance taxes from them pursuant to the said
SROs, should also not be declared to be without lawful
authority.
It is commonly stated by the writ petitioners that,
since inception they have been enjoying exemption from
paying income tax on the surplus income generated by them
by virtue of an SRO being SRO No.454-L/80 dated 31 st 6
December, 1980 issued by the Government ( Ministry of
Finance) under Section 60(1) of the then Income Tax Act,
1922 which, vide its Clause-(a)(3), exempted the
universities and other non -profitable educational
institutions from payment of income tax. That during
their such enjoyment of exemption, the Government issued
another SRO, being SR O No.178-Income Tax/2002 dated 3 rd
July, 2002, under Section 44(4)(b) of the Ordinance, 1984
substituting the above Clause -(a)(3) that such exemption
would continue only in respect of universities who were
not operated commercially.
It is further stated that, sai d SRO No.178 dated 3rd
July, 2002 did not make any material d ifference from the
earlier SRO No.454-L/80 dated 31st December, 1980 so far
exemption from payment of income tax by the writ-
petitioners were concerned. The earlier SR O was
applicable to non-profitable universities and other
educational institutions and the latter became applicable
to the universities and educational institutions which
were operated on non -commercial basis and as such the
intention and object of both the SROs were same. Thus, it 7
is stated that the writ petitioners remained entitled to
get exemption from payment of income tax under the said
SRO dated 3rd July, 2002 as the writ petitioners could not
in any case run their universities on commercial basis as
per their own charters.
It is further stated that, the writ petitioners being
non-profitable institutions do not operate commercially
and the whole income of the writ petitioners are applied
for imparting education as p er the obje cts of their
Society/Charter/Foundation/Trust. No part of the income
of the writ petitioners are consumed/utilized by the
members of the said Foundation/Society/Trust/ Non
Commercial University. But the same are utilized solely
for the purpose of education and diffusion of knowledge
which is absolutely non-commercial in nature.
However, it is stated that by the two impugned SROs
being, SRO No.156-Ain/Aikor/2007 dated 28.06.2007 and SRO
No.158-Ain/Aikor/2007 dated 28.06.2007, the then Non -
Party Caretaker Government promulgated/issued new
provisions regarding tax on the surplus income of the
writ-petitioner universities purportedly under Section 8
44(4)(b) of the Ordinance, 1984 and thereby cancelled the
exemption of taxes which they were entitl ed to by the
earlier SRO No.454-L/80 dated 31st December, 1980 and SRO
No.178 dated 3rd July, 2002.
It is also stated that, vide impugned SRO No.158
dated 28.06.2007, Non -Party Caretaker Government (t he
Ministry of Finance) for the first time made division
between public universities and private universities with
an additio nal proviso and thereby imposed/ re-fixed 15 %
tax on private universities. Finally, it is stated, the
Government (the Minis try of Fi nance) vide impugned SRO
No.268 dated 01.07.2010 introduced a new provision under
Section 44(4)(b) of the Ordinance, 1984 which vi rtually
imposed wholesale tax @15% on private universities
irrespective of its nature whether it is r un non-
commercial basis or imparting education on medical
science or engineering or imparting education in other
fields including information technology.
Common grievance of the writ petitioner universities
are that, pursuan t to the aforesaid impugned SR Os, the
tax exemptions as enjoyed by them have been withdrawn 9
without lawful authority, taxes have been collected from
them illegally and they have been illegally asked to pay
advance taxes and/or arrear taxes vide different impugned
memos issued by the concer ned tax authorities . Being
aggrieved by the sa id impugned SROs as well as the
impugned actions of the respondents pursuant to the said
SROs, the writ petitioners moved before the High Court
Division and obtained the aforesaid Rules. At the time of
issuance of the Rules, th e High Court Division vide
different ad-interim orders, either stayed operation of
the impugned SROs or stayed such demand of tax es issued
by the writ -respondents on the writ -petitioners or
proceedings that followed.
Rules have been oppos ed by the writ -respondents by
filing separate affidavit-in-opposition since the case of
the writ -respondents are common in all the writ
petitions.
After hearing learned Advocates for the respective
parties, the High Court Division made all the Rules
absolute with direction vide impugned judgment and order
dated 09.05.2016 declaring the impugned SROs withdrawing 10
the tax exemptions and thereby imposing 15% tax in
whatever names as ultra-vires to the Constitution and the
Ordinance, 1984 and those were declared to have been
issued without lawful authority and were of no legal
effect. The High Court Division also directed the writ -
respondents to refund the realized taxes pursuant to the
impugned SROs.
Having aggrieved by and dissatisfied with the
impugned judgment and order passed by the High Court
Division, the Government and others as petitioners have
preferred 44 separate civil petitions for leave to a ppeal
invoking Article 103 of the Constitution and obtained
leave granting order on 09.02.2021.
Consequently, these civil appeals arose.
Mr. A.M. Amin Uddin , learned Attorney General
appearing for the appellants in all the appeals submits
that the provision of Section 44(4)(b) of the Ordinance,
1984 has empowered the Government to make exemption,
reduction in rate or other modification in respect of tax
infavour of any class of income or in regard to the whole 11
or any part of the income or any class of persons and
impugned SROs having been issued by the Government
pursuant to the above provision of law, but said legal
provision has not been challenged by the writ -petitioner-
respondents and as such without declaring said provision
of law as ultra-vires to the Constitution, the High Court
Division erred in law in declaring the impugned SROs as
illegal. He next submits that pursuant to Section 21 of
the General Clauses Act, 1897 the exemption can never be
treated as right rather the same is a privilege which can
be recalled/withdrawn/rescind and the Government having
issued the SRO withdrawing the privilege of the exemption
of tax and the said exercise is within the authority of
the Government, the High Court Division erred in law in
declaring the same as ultra-vires to the Constitution. He
further submits that High Court Division failed to
consider that the Non -Party Caretaker Government during
their period declared national budget for collection of
revenue which was subsequently ratified and the impugned
SROs were issued for the interest of the state revenue
and the said function of the then Caretaker Government 12
was a necessity for smooth functioning of the Government
which was given legal coverage by converting into an Act
in the year, 2009 but the High C ourt Division without
appreciating this legal aspects erroneously declared
impugned SROs as illegal . He again submits that the High
Court Division while deciding the issue regarding
Public/Private discrimination has failed to consider that
public universit ies are established under their own
statutes and on the other hand the private universities
established under the provision of ‡emiKvwi wek^we`¨vjq AvBb, 1992 or
‡emiKvwi wek^we`¨vjq AvBb, 2010 and by the said enactment it appears
that the private universi ties have itself formed a
separate group which can be intelligibly differentiate
from the public universities and thus the question of
discrimination between public and private universities
does not arise at all and as such the High Court Division
erred in law in passing the impugned judgment and order.
He also submits that High Court Division while deciding
the issue relating to Fundamental Principles of State
Policy has failed to consider that the Fundamental
Principles of State Policy is not judicially e nforceable 13
and as such the High Court Division erred in law in
making the Rules absolute holding that Fundamental
Principles of State Policy as enunciated under Articles
15 and 17 as well as the Fundamental Right to life as
enshrined under Article 32 of th e Constitution has
infringed/violated by the impugned SROs. He lastly
submits that the High Court Division failed to consider
that income tax being a direct tax, has no bearing upon
the students rather it will be collected from the
universities from their income, if any, after expenditure
without affecting any students as such the impugned
judgment and order is liable to be set-aside.
On the other hand, learned Advocate s appearing for
the respondents in separate civil appeals made their
submissions in the same line. Summary of their
submissions are that the High Court Division upon proper
appreciation of the provisions of Constitution, the
Ordinance, 1984 and other relevant laws rightly made all
the Rules absolute with direction. They submits that the
writ-petitioner private universities are charitable and
philanthropic educational institution and those were 14
established or created for the purpose of imparting
education, a fundamental right guaranteed under
Constitution, and there was no motive to earn profit and
as such those educational institutions are not liable to
pay income tax. They again submits that Section 44(4)(b)
of the Or dinance, 1984 did not authori ze the Government
to impose taxes by a sub -ordinate legislation and only
the Parliament can impose taxes by a law framed under
Article 83 of the Constitution and thereby the Government
committed gross illegality in imposing 15% taxes upon the
private univers ities. They further submits that though
the public universities received Government grants to run
universities and are exempted to pay any taxes but the
private universities which were established and created
for charitable and philanthropic purpose only to impart
education and no Government grant was given to them ,
inspite of that they were directed to pay 15% taxes which
is illegal as well as discriminatory. They also submits
that as per provisions of Private Universities Ac t, 1992
and/or 2010, the trust deed as well as other instruments
by which the universities a re established, there was no 15
profit motive and the trustees or university authorities
have no income from the universities , the income of the
writ-petitioner universities cannot be term ed as income
from university or profession within the meaning of the
Ordinance, 1984. Thus , the High Court Division rightly
made those Rules absolute with direction, which do not
require any interference by this Division.
Heard the learned Attorney General for the appellants
and the learned Advocates for the respective respondents
and perused the impugned judgment and order passed by the
High C ourt Division alongwith relevant papers/documents
contained in the respective paper books.
From the materials on record it appears that t he
writ-petitioners in question are private universities
established in different years under Societies
Registration Act, 1860 /Section 28 of the Companies Act,
1994/The Trust Act, 1882 etc. The common characteristics
of these Privat e Universities are that they were formed
under the Private University Act, 1992, claimed
themselves as non -profit charitable or philanthropic
organizations, as Universities they mainly receive 16
different types of fees and charges from the students and
meet expenses for contributing educational services
towards the students.
In the context of above, it is necessary to examine
whether these private universities are taxable entities
or are required to pay tax under the Ordinance, 1984
(Recently repealed by the Income Tax Act, 2023).
The Ordinance, 1984 is meant for the taxation of
income. Where there is income there must be imposition of
tax under the said Ordinance unless the income or incomes
are explicitly exempted under the lawful arrangement .
Therefore, first question is what constitutes ‘income’
under the Ordinance, 1984 . The word ‘income’ is defined
under Section 2(34) of the Ordinance , 1984 . It
essentially not an exhaustive definition rather an
inclusive one having an elastic ambit . Various Judicial
pronouncements have tried to define ‘income’. In the case
of CIT vs. Shaw Wallace & Co., the Privy Council held:
“Income in this Act connotes a periodical
monetary return ‘coming in’ with some sort
of regularity, or expected regularity, f rom
definite sources.” 17
However, subsequent amendments in the Ordinance, 1984
made some changes. An isolation adventure may also be
treated as business, for example, business income might
have been deemed under Section 19(20) of the Ordinance,
1984 from the disposal of asset representing expenditure
of a capital nature on scientific research . Even a
windfall gain or a non -recurring receipt like winnings
from lotteries may be treated as ‘income’ under Section
19(13). In view of the above discussion s, it can be said
that the Private Universities receive fee s and charges
from the student s which are nothing but monetary return
coming in as revenue receipt and, in the accounts, they
are exhibited in a periodical manner . Therefore, the
private universities received ‘income’ in their hands.
Now it can be looked into whether the Private
Universities are doing business . Activities relating to
trade or manufacture may be signify as business. However,
the word ‘business’ conveys wider meaning. In the case of
Barendra Prasad Ray and others vs. Income Tax Officer ‘A’
Word Foreign, reported in (SC) 1981, 129 ITR 295, it was
expressed by the Indian Supreme Court that: 18
“Business is one of wide import and it means
an activity carried on continuously and
systematically by a p erson by the
application of his labour or skill with a
view to earning an income.”
In the case of Unni Krishnan, J.P. and others vs.
State of Andhra Pradesh and others , reported in AIR 1993
SC 2178, t o answer the question ‘whether there is a
fundamental right to establish an educational
institution’, the Supreme Court of India discussed
meaning to be attributed to the words “profession”,
“occupation”, “trade”, or “business” a s mentioned in
Article 19(1)(g) of the Constitution of India . A fter
referring meaning of “occupation” in P. Ramanatha Aiyar’s
Law Lexicon , Reprint Edition 1987 , and Black’s Law
Dictionary, Fifth Edition , the Court cited the
observation made in P.V.G. Raju vs. Commissioner of
Expenditure, reported in 86 ITR 267, which is as follows:
“The activity termed as “Occupation”, if of
wider import than vocation or profession. It
is also distinct from a hobby which can be
resorted to only in leisure hours for the
purpose of killing time. Occupation,
therefore, is that with which a person
occupies himself either temporarily or
permanently or for a considerable period 19
with continuity of activity. It is analogous
to a business, calling or pursuit . A person
may have more than one occupation in a
previous year. The Occupations may be
seasonal or for the whole year.
Firstly, there can be a business,
profession, vocation or occupation without
any profit motive or on “no profit on loss
basis”. To, illustrate, co -operative
societies or mutual insurance companies may
carry on business without earning any income
or without any profit motive. The vocation
or occupation to do social service of
various kinds for the uplift of the people
would also come under this category. The
profit motive or earning of income is not an
essential ingredient to constitute the
activity, termed as business, profession,
vocation or occupation.”
(emphasis supplied by us)
In the cited case the meaning of “business” also
discussed.
In the case of Bangalore Water Supply and Sewerage
Board vs. R. Rajappa , reported in AIR 1978 SC 548 ,
Krishna Iyer, J. observed:
“To Christian education as a mission, even
if true, is not to negate is being an
Industry, we have to look at education
activity from the angle of the Act and so
viewed the ingredients of education are 20
fulfilled. Education is, therefore, an
industry nothing can stand in the way of
that Conclusion.”
In the case of Unni Krishnan, J.P. and others vs.
State of Andhra Pradesh and others , reported in AIR 1993
SC 2178, Justice B.P. Jeevan Reddy observed:
“In the above circumstances, it is ideal to
contend that imparting of education is a
business like any other business or that it
is an activity akin to another activity like
building of roads, bridges etc.”
However, learned Justice B.P. Jeevan Reddy also
observed:
“We must make it clear that we have not gone
into the precise meaning and content of the
expressions profession, occupation, trade or
business for the reason that it is not
necessary for us to do so in view of the
approach we are adopting hereinafter, which
would be evide nt from succeeding paragraphs.
Our main concern in the entire preceding
discussion is only to wish that the activity
of establishing and/or running an educational
institution cannot be of commerce.”
The learned Justice B.P. Jeevan Reddy also makes it
clear that:
“Commercialization of education is not
permissible.” 21
The Private Universities, in question applied their
skill and labour in rendering services for which they
earn income.
It may be mentioned here that the Private
Universities claimed that they bei ng non -profit
charitable or philanthropic organization do not have any
profit motive. But it is well settled that profit motive
is not essential to constitute business income . In the
case of Krishna Menon vs. CIT, reported in [1959] 35 ITR
48, 52-3 (S.C. of India) it has been expressed by the
Supreme Court of India that ‘making profit or that
desire’ or wish to make a profit is not essential in the
case of carrying on a trade or business . The motive of
making profit or the act ual earning of profit is not
essential ingredient of business, for example, mutual
concerns and societies do carry on business although they
may not make and may not want to make any profit.
In view of the above , it can be said that Private
Universities earn income and the income falls under the
head of Business income. In line with the above decision
it can also be logically concluded that Private 22
Universities, being non -profitable organizations, might
not have any motive to earn income ; h owever, they are
doing business.
As mentioned earlier , Private Universities are
originated and established under certain Law or Laws.
They can be identified as body corporate within the
meaning of section 2(20)(a) of the Ordinance, 1984.
It is not disputed that a private university is a
juristic person and on that capacity each of the Private
Universities preferred the writ petition. Therefore, a
private university being a body corporate established or
constituted by or under law or laws can be identified as
a company for i ncome tax purpose. And, accordingly, any
income earns by a private university is chargeable to tax
under Section 16 of the Ordinance , 1984. In other words,
a private university is a company -assessee, total income
of which is assessable by applying laws . As regards tax
liability the tax rate or rates as fixed through the
Finance Act or Ordinance are applied on the total income
in order to determine the tax liability or refund . Total
income under Section 2(65) of the Ordinance, 1984 is 23
defined as the total amount of income referred to in
Section 17 and computed in the manner laid down in the
Ordinance, 1984. It may also be noted that when it comes
to income from business or profession there has to
consider some allowable deduction in accordance with the
law in order to get the amount of total income and then
rate or rates of taxes are applied in order to calculate
the payable or refundable amount of tax, if any . Here,
tax rate of a company as fixed in the Finance Act or
Ordinance is to be applied given the fact that a private
university is a company -assessee as discussed above and
liable to pay tax on the basis of its total income mainly
under the head of business income.
Admittedly, Government promulgated SR O No.454 -L/80
dated 31.12.1980 . Relevant portion of the SR O is
reproduced below:
4324 THE BANGLADESH GAZETTE, EXTRA, DECEMBER 31, 1980
MINISTRY OF FINANCE
Internal Resources Division
NATIONAL BOARD OF REVENUE
NOTIFICATIONS
Dacca, the 31st December, 1980 24
No.SRO 454-L/80.-In exercise of the
powers conferred by sub -section (1) of
Section 60 of the Income -tax Act, 1922 (XI
of 1922), and in supersession of the
Ministry of Finance Notification No. SRO
1041(K)/61, dated the 31st October, 1961, the
Government is pleased to direct that-
(a) the following classes of income shall
be exempt from the tax payable under
the said Act and they shall not be
taken into account in determining the
total income of an assessee for the
purposes of the said Act:-
---------------------------------------
(3) the income of a University or other
educational institution existing
solely for educational purposes and
not for purposes of profit.
It appears from the SRO No. 454-L/80 dated 31.12.1980
that the Government, in exercise of the power under
Section 60(1) of the then Income Tax Act, 1922, exempted
tax liability of universities and other educational
institution, irrespective of private or public, which
were existing solely for educational purposes and not for
profit. Thereafter, an amendment has been made in this
regard through ano ther Notification being SRO No. 178-
Aikor/2002 dated 03.07.2002 in the following manner:
25
‡iwR÷vW© bs wW G-1
evsjv‡`k †M‡RU
AwZwi³ msL¨v
KZ…©cÿ KZ…©K cÖKvwkZ
e„n¯úwZevi, RyjvB 4, 2002
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
(AvqKi)
cÖÁvcb
ZvwiL: 19‡k Avlvp, 1409 e½vã/3iv RyjvB, 2002 wLªóvã
Gm. Avi. I bs 17 8-AvqKi/2002- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) ‡Z cÖ`Ë
ÿgZve‡j miKvi AÎ wefv‡Mi 31‡k wW‡m¤^i , 1980 Bs Zvwi‡Li cÖÁvcb Gm.
Avi. I bs -454-L/80 G wb¤œiƒc ms‡kvab Kwij, h_v:-
Dcwi-D³ cÖÁvc‡bi Clause (a) Gi Sub-Clause (3)
cwie‡Z© wb¤œiƒc Sub-Clause (3) cÖwZ¯’vwcZ nB‡e, h_v:-
“(3) the income of a ny university, or
any other educational institution,
which is not operated commercially and
also medical college, dental college,
engineering college and institution
imparting education on information
technology.”
ivóªcÖwZi Av‡`kµ‡g
(‡gvt ‡`‡jvqvi †nv‡mb)
AwZwi³ mwPe (c`vwaKvie‡j)
The writ petitioners, however, did not express their
grievance in response to the said amendment through SRO
dated 03.07.2002 as their interest was not affected by
the said SRO.
26
Subsequently, the Government by the impugned SRO
No.156-Ain/Aikor/2007 dated 28.06.2007 withdrew t he
exemption by omitting, inter alia, the Sub-Clause (3) of
Clause (a) of the SRO No.454-L/80 dated 31.12.1980, which
is quoted below:
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
RvZxq ivR¯^ †evW©
(AvqKi)
cÖÁvcb
ZvwiL: 14 Avlvp, 1414 e½vã/28 Ryb, 2007 wLªóvã
Gm.Avi.I bs -156-AvBb/AvqKi/2007|- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) G cÖ`Ë
ÿgZve‡j miKvi GB wefv‡Mi SRO No.454-L/80 dated 31st
December, 1980 G wb¤œiƒc ms‡kvab Kwij, h_v:
Clause (a) Gi Sub-Clause (2) I Sub-
Clause (3) wejyß nB‡e|
2| Bnv 1jv RyjvB 2007 Bs nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
¯^vÿwiZ/-
(Avjx Avng`)
AwZwi³ mwPe (c`vwaKvie‡j)
On the same date, the Government issued another SRO
bearing No.158-Ain/Aikor/2007 by fixing the tax rate at
15% for the private universities , in the following
manners:
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq 27
Af¨šÍixY m¤ú` wefvM
RvZxq ivR¯^ †evW©
(AvqKi)
cÖÁvcb
ZvwiL: 14 Avlvp, 1414 e½vã/28 Ryb, 2007 wLªóvã
Gm. Avi. I bs -158-AvBb/AvqKi/2007- Income Tax
Ordinance, 1984 (XXXVI of 1984) Gi Section
44 Gi Sub-Section (4) Gi Clause (b) G cÖ`Ë
ÿgZve‡j miKvi wek^we`¨vjq gÄyix Kwgkb KZ…©K Aby‡gvw`Z cÖvB‡fU wek^we`¨vjq
Ges Acivci wek^we`¨vjq, hvnviv cvewjK wek^we`¨vjq bq, Zvnv‡`i D™¢zZ Av‡qi
Dci 15% nv‡i AvqKi cybt wbav©iY Kwij|
2| ‡gwWK¨vj, †W›Uvj, BwÄwbqvwis I Z_¨ cÖhyw³ wkÿv`v‡b wb‡qvwRZ cÖvB‡fU
K‡jR ev wek^we`¨vjqmg~‡ni Avq Kigy³ nB‡e wKš‘ H mKj cÖwZôv‡bi †ÿ‡Î
cÖwZeQi h_vixwZ wbixwÿZ wnmve weeiYxm‡gZ AvqKi weeiYx `vwLj Kwi‡Z nB‡e|
3| cvewjK wek^we`¨vjqmg~‡ni Avq Kigy³ nB‡e|
4| Bnv 1jv RyjvB 2007 Bs nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
¯^vÿwiZ/-
(Avjx Avng`)
AwZwi³ mwPe (c`vwaKvie‡j)
In th e SRO No.158 dated 2 8.06.2007, the public
universities were kept out of the ambit of taxation and
some other private educational institutions such as
Medical, Dental, Engineering and IT colleges and
universities were given tax exemption under certain
conditions. Thereafter, the Government issued SRO No.268-
Ain/Aikor/2010 dated 01.07.2010 replacing the immediately
preceding SRO No. 158-Ain/Aikor/2007 dated 28.06.2007 and
re-fixing a reduced tax rate to be at 15% for all private 28
universities including Medical, Dental, Engineering and
IT colleges. The contents of said SRO is as under:
‡iwR÷vW© bs wW G-1
evsjv‡`k †M‡RU
AwZwi³ msL¨v
KZ…©cÿ KZ…©K cÖKvwkZ
e„n¯úwZevi, RyjvB 1, 2010
MYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Af¨šÍixY m¤ú` wefvM
(AvqKi)
cÖÁvcb
ZvwiL: 17 Avlvp, 1417 e½vã/1 RyjvB, 2010 wLªóvã
Gm. Avi. I bs -268-AvBb/AvqKi/2010|- Income Tax
Ordinance, 1984 ( Ord. No.XXXVI of 1984) Gi
Section 44 Gi Sub-Section (4) Gi Clause (b)
‡Z cÖ`Ë ÿgZve‡j miKvi, 14 Avlvp 1414 e½vã/28 Ryb, 20 07 wLªóvã Zvwi‡Li
cÖÁvcb bs-Gm.Avi.I bs -158-AvBb/AvqKi/2007 GZ`&Øviv iwnZµ‡g, cvewjK
wek^we`¨vjq e¨ZxZ †emiKvwi wek^we`¨vjq, †emiKvwi †gwWK¨vj K‡jR, †emiKvwi
†W›Uvj K‡jR, †emiKvwi BwÄwbqvwis K‡jR ev †KejgvÎ Z_¨ cÖhyw³ wel‡q
wkÿv`v‡b wb‡qvwRZ †emiKvwi K‡jR Gi D™¢zZ Av‡qi Dci cÖ‡`q AvqK‡ii nvi
n«vm Kwiqv 15% wbav©iY Kwij|
2| Bnv 1jv RyjvB 2010 ZvwiL nB‡Z Kvh©Ki nB‡e|
ivóªcÖwZi Av‡`kµ‡g
(Avwgbyi ingvb)
AwZwi³ mwPe (c`vwaKvie‡j)
The aforementioned SROs of 2007 and 2010 were
challenged by the writ-petitioners in the form of writ
petitions.
In passing the impugned judgment and order, the High
Court Divisions observed that by virtue of the provisions
29
of Article 58D of the then Chapter 11A of Part IV of the
Constitution, the Caretaker Government was only
authorized to do routine works and then arrived at a
finding that imposition of tax on private universities
and creation of classification between private and public
universities in respect of tax is a policy issue even
though the High Court Division agreed on the submission
of the learned D eputy Attorney General (DAG) that the
Caretaker Government promulgated two budgets and it
became necessary on the part of the Government to do some
taxation work.
The issue of taxation work needs a careful
examination in light of the budgetary exercise of the
Government. Every year the Government is required to
promulgate annual budget with some estimate of income and
expenditure. To run a Government, it is necessary to meet
day to day expenditure and fulfil other obligation to
make payments such as loan repayment and interest payment
to domestic and international organizations. Besides, the
Government irrespective of its characteristics is
responsible for various development activities in the 30
country. Therefore, budget estimates in respect of
expenditure must with the est imate of earnings where the
major source of earnings is taxation . That is why
Government’s budgetary exercise always produces taxation
law in the form of Finance Act or Ordinance and other
ancillary legal instruments like SRO, rules or
notification. As a result, SROs in relation to taxation
cannot be seen in isolation of budgetary exercise . Under
the budgetary exercise , it is necessity for the
Government to make payments and to earn revenue . In the
absence of earnings , the payments are not possible . But
smooth earnings depend on a well -planned revenue earning
arrangements. As a result, imposition or even reduction
of tax under the lawful authority is a necessity , not an
ordinary policy issue . It is to be noted here that
because of the necessity the bu dgets promulgated by the
Caretaker Government under the coverage of Appropriation
Ordinance and Finance Ordinance for the two years being
2007 and 2008 were converted into Act, in the year of
2009. The relevant portions of the A_© (2007 -2008 A_© ermi) AvBb ,
2009 Ges A_© (2008-2009 A_© ermi) AvBb, 2009 are reproduced below: 31
“aviv-1| (1) GB AvBb A_© (2007 -2008 A_© ermi) AvBb, 2009 bv‡g
AwfwnZ nB‡e|
(2) GB AvBb 17 Avlvp, 1414 e½vã †gvZv‡eK 1 RyjvB, 2007 wLªóvã ZvwiL
nB‡Z Kvh©Ki nBqv‡Q ewjqv MY¨ nB‡e|
--------------------------------------------------------------------------------
------------------------------------------------------------------------------
aviv-71| A_© Aa¨v‡`k, 2007 (2007 m‡bi 10bs Aa¨v‡`k) iwnZKiY GZ`&Øviv
iwnZ Kiv nBj|
-AND-
aviv-1| (1) GB AvBb A_© (2008 -2009 A_© ermi) AvBb, 2009 bv‡g AwfwnZ
nB‡e|
(2) GB AvBb 17 Avlvp, 1415 e½vã †gvZv‡eK 1 RyjvB, 2008 wLªóvã ZvwiL
nB‡Z Kvh©Ki nBqv‡Q ewjqv MY¨ nB‡e|
--------------------------------------------------------------------------------
------------------------------------------------------------------------------
aviv-48| A_© Aa¨v‡`k, 2008 (2008 m‡bi 33bs Aa¨v‡`k) iwnZKiY GZ`&Øviv
iwnZ Kiv nBj|”
It may be mentioned here that when an Appropriation
Ordinance is converted into an Act, the a ctions taken
under the Ordinance are also given legal coverage. In
this regard relevant provisions from wbw`©óKiY (2007 -2008 A_© ermi)
AvBb, 2009 (2009 m‡bi 2bs AvBb) is reproduced hereunder:
“4| (1) mshy³ Znwej (AwMÖg gÄyix `vb I wbw`©óKiY) Aa¨v‡`k, 2007 (2007
m‡bi 12 bs Aa¨v‡`k) GZ`&Øviv iwnZ Kiv nBj|
(2) Abyiƒc iwnZKiY m‡Ë¡I D³ Aa¨v‡`‡ki Aax‡b K…Z ev M„nxZ e¨e¯’vw` GB
AvB‡bi Aax‡b K…Z ev M„nxZ nBqv‡Q ewjqv MY¨ nB‡e|”
A Government budget is estimates of earning and
spending for a particular period of time referred to as a
financial or fiscal year. In other words, it is a
projection of the revenue and expenditure of the 32
Government within a fiscal year. For smooth functioning
of the Government and for implementing its economic
policies, budget plays a vi tal role. Constitutional
provision under Chapter II of the Constitution regulates
the budgetary process of the Government. The budget is
presented to the Parliament and once the budget is
approved, the Government can use the funds and impose the
tax to mak e the revenue inflow of the fund nonstop.
Accordingly, we find two pieces of legislation —one in
relation to spending and the other chiefly in connection
to taxation. There is, however, another piece of
legislation which is connected to the revised budget. As
regards spending the legislation is termed as
‘Appropriation Act’ or ‘ wbw`©óKiY AvBb ’, while the other
relating to Government revenue or tax is called ‘The
Finance Act’ or ‘ A_© AvBb ’. Through the Appropriation Act,
the Parliament empowers the Government to spend from the
consolidated fund while The Finance Act which gives the
Government right to impose tax plays an important role to
make the fund uninterrupted. Therefore, both the
legislations are integral parts of the whole budgetary 33
process. In other w ords, they are the two opposite sides
of the same coin of budgetary process.
As the Parliament was not in session in the year of
2007, the then Caretaker Government in connection to the
budget passed two Ordinances one being mshy³ Znwej (AwMÖg gÄyix `vb I
wbw`©óKiY) Aa¨v‡`k, 2007 (2007 mv‡ji 12bs Aa¨v‡`k) and the other being A_©
Aa¨v‡`k, 2007 (2007 mv‡ji 10bs Aa¨v‡`k) . Subsequently, the Parliament
converted the said two Ordinances as Acts. Accordingly,
the mshy³ Znwej (AwMÖg gÄyix `vb I wbw`©óKiY) Aa¨v‡`k, 2007 has been converted
as wbw`©óKiY (2007-2008 A_© eQi) AvBb, 2009 (2009 mv‡ji 9bs AvBb). As a result,
all the Constitutional defects, if any, in course of
budgetary process of the then Caretaker Government has
been entirely removed by the 9th Parliament. Thus, the
SROs which were issued on 28.06.2007 by the Government
under Section 44(4) (b) of the Ordinance, 1984 to collect
the revenue from the income of private universities
cannot be called into question.
In view of the above discussions, it can be said that
the classification of public and private universities in
respect of taxation is closely connected to the necessary 34
revenue earnings under the budgetary exercise, that such
classification is not a n ordinary policy issue, that the
Government issued the impugned SROs in exercise of the
power given under Section 44(4)(b) of the Ordinance,
1984, and that the Parliament subsequently accepted all
budgetary work by converting the related Ordinances into
Acts. Therefore, the impugned SRO s being No.156-Ain/
Aikor/2007 dated 28.06.2007 and No.158 -Ain/Aikor/2007
dated 28.06.2007 cannot be said to have been issued
unlawfully on the ground that they have been issued by
the Caretaker Government.
Pursuant to Section 44(4)(b) of the Ordinance, 1984,
the Government is empowered to make any exemption,
reduction in rate or other modification in respect of tax
infavour of any class of income or in regard to the whole
or any part of the income of any class of persons and the
impugned SRO s having been issued/p romulgated by the
Government pursuant to the above mentioned provision of
law, as such it cannot be said by any means that the
impugned SRO s were issued/promulgated without lawful
authority. Moreover, no new tax is being imposed through 35
the impugned SRO s; rather the rate of exemption is
modified only. The rate of exemption can never be treated
as right rather same is a privilege which can
recalled/withdrawn/rescind by the Government at time any
considering the prevailing economic condition of our
country as a basis of necessity.
Apart from that, the issue of Caretaker Government
was discussed thoroughly in the case of Abdul Mannan Khan
vs. Government of Bangladesh (popularly known as 13 th
Amendment Act Case), reported in ADC Vol. IX (A) (2012) 1
(Special issue). In that case validity of the
Constitution 13th Amendment Act, 1996 (Act No.01 of 1996)
was questioned. Though, it was held by the majority that
the Constitution 13th Amendment Act, 1996 (Act No.01 of
1996) is prospectively declared void and ultra -vires to
the Constitution but this Division observed that:
“cieZ©x cÖkœ nB‡Z‡Q †h GB iv‡qi f~Zv‡cÿ cÖ‡qvMKiZt ZwK©Z AvBbwU‡K
void ab initio ‡NvlYv Kiv nB‡e wKbv| cÖkœwU we‡kl ¸iæZ¡c~Y© AvKvi
avib Kwiqv‡Q Kvib 1996 mvj nB‡Z ZwK©Z msweavb ms‡kvab AvB‡bi Aax‡b
mßg, Aóg I beg RvZxq msm` wbe©vPb Abyôvb nBqv‡Q| `yBwU wbe©vwPZ miKvi
10(`k) ermi Kvj †`k cwiPvjbv Kwiqv‡Q Ges Z„Zxq wbe©vwPZ miKvi eZ©gv‡ b
†`k cwiPvjbv Kwi‡Z‡Q| GB `xN© mg‡qi g‡a¨ Avewk¨Kfv‡e †`‡k eû msL¨K
AvBb wewae× nBqv‡Q| eûevi evrmwiK ev‡RU cvk nBqv‡Q| m¤¢eZt GB mg‡qi
g‡a¨ eû msL¨K AvšÍR©vwZK, eûRvwZK I wØcvwÿK Pzw³ ¯^vÿwiZ nBqv‡Q| †gvU 36
K_v, 1996 mvj nB‡Z GB 15 erm‡i ivóªxq AmsL¨ Kg©Kv Û cwiPvwjZ nBqv‡Q|
hw` ZwK©Z AvBbwU void ab initio ejv nq Z‡e GB 15 erm‡ii ivóªxq
mKj Kg©KvÛ A‰ea nBqv hvB‡e Ges †`‡k GKwU Pig wech©‡qi m„wó nB‡e|”
And thereafter finally arrived at some findings
including:
“(16) 2007 mv‡j wØZxq ZË¡veavqK miKv‡ii 90 w`b †gqv` cieZx© AwZwi³
cÖvq `yB ermi mgqKvj cÖkœwe× weavq H AwZwi³ mgqKv‡ji Kvhv©ejx gvR©bv
(condone) Kiv nBj|”
As regards public and private classification the High
Court Division opined that SRO No.158 -Ain/Aikor/2007
dated 28.06.2007 and SRO No.268-Ain/Aikor/2010 dated
01.07.2010 are discriminatory and violative of Article s
27, 31 and 32 of the Constitution. But when it comes to
taxation the concept of fundamental right being Equality
before Law, Right to protection of law and Protection of
right to life and personal liberty cannot be applied
loosely. State has an inherent right to tax its subjects.
Income tax being a direct tax secure a very special place
in connection to the justice and injustice. Lord Sumner
in the case of Wankie Colliery vs. C.I.R., reported in 1
A.T.C. 125: (1922) to A.C. 51, expresses in this regard
as follows:
“I think, however, that considerations of
justice and injustice have not much to do 37
with modern direct taxation; they belong to a
different order of ideas. Taxation is
concerned with expediency or inexpediency. It
regularly results in one person being
burdened for another’s benefit in the sense
that the subject who pays the tax may be last
person to benefit by the expenditure of it.”
It is also held in different jur isdiction of the
subcontinent that:
“Equity and Income tax are strangers.”
[See Raja Jagadambika Pratap Narain Singh
vs. Central Board of Direct Taxes , reported
in (1975) 100 I.T.R. 698 (SC)]
Again, the Supreme Court of India in the case of Elel
Hotels and Investments Limited and O thers vs. Union of
India (UOI), reported in AIR 1990 (SC) 1664, held:
“It is now well settled that a very wide
latitude is available to the legislature in
the matter of classification of objects,
persons and things for purposes of taxation.
It must needs to be so, having regard to the
complexities involved in the formation o f a
taxation policy. Taxation is not now a mere
source of raising money to defray expenses
of Government. It is a recognised fiscal
tool to achieve fiscal and social
objectives.”
So, the classification of the private and public
university should not be exa mined by the loose 38
application of fundamental rights. Such classification
should be examined by the certain characteristics of the
persons. Private Universities are established under a
special law different from the laws under which the
Public Universities are established. This difference in
the formation of private and public universities can be
the basis of classification. Therefore, in respect of
income tax being a direct tax such classification cannot
be viewed as discriminatory.
Articles 15 and 17 under Part II of the Constitution
are supplementary and complementary to each other and
must be read together. Article 15 of the Constitution
provides that the fundamental responsibility of the state
to attain basic necessities of life, including food,
clothing, shelter, education and medical care and Article
17 provides that the state shall adopt effective measures
for the purpose of (a) establishing a uniform, mass
oriented and universal system of education and extending
free and compulsory education to all children to such
stage as may be determined by law.
(emphasis supplied by us) 39
It is noteworthy to mention here that according to
the National Education Policy, 2010, the level of
compulsory primary education in all streams was extended
from Class V to Clas s VIII and the Government also
providing free and compulsory education up to Class VIII.
By quoting from the observation made by Justice
Jeevan Reddy in Unni Krishnan, J.P. and others vs. State
of Andhra Pradesh and others, reported in AIR 1993 SC
2178, the High Court Division in the impugned judgment
and order compared the issue of “right to education” with
“right to life” but in the same case Justice Jeevan Reddy
observed that:
“In the above state of law, it would not be
correct to contend that Mohini Ja in was
wrong in so far as it declared that ‘the
right to education flows directly from right
to life’. But the question is what is the
content of this right? How much and what
level of education is necessary to make the
life meaningful? Does it mean that e very
citizen of this country can call upon the
State to provide him education of his
choice? In other words, whether the citizens
of this country can demand that the State
provide adequate number of medical colleges,
engineering colleges and other educatio nal
institutions to satisfy all their 40
educational needs? Mohini Jain seems to say,
yes. With respect, we cannot agree with such
a broad proposition.”
And in the referred case the learned Judges disposed
of the writ petition and civil appeals in the followi ng
terms amongst others:
“1. The citizens of this country have a
fundamental right to education. The said right
flows from Article 21. This right is, however,
not an absolute right. Its content and
parameters have to be determined in the light
of Articles 45 and 41. In other words every
child/citizen of this country has a right to
free education until he completes the age of
fourteen years. Thereafter, his right to
education is subject to the limits of economic
capacity and development of the State.”
The ‘ORDER’ passed in the case of Unni Krishnan, J.P.
and others vs. State of Andhra Pradesh and others ,
reported in AIR 1993 SC 2178, is relevant to nullify the
impugned judgment and order passed by the High Court
Division, which is reproduced below:
“1. We have had the benefit of going through
the two judgments of our learned Brothers
B.P. Jeevan Reddy and S. Mohan, JJ. We are
in agreement with the judgment of Brother
B.P. Jeevan Reddy, J. except to the extent
indicated below. 41
2. The question which arose in the case of
Miss Mohini Jain v. State of Karnataka:
MANU/SC/0357/1992: [1992]3SCR658, as also in
the present cases before us, is whether a
citizen has a Fundamental Right to education
for a medical, engineering or other
professional degree. The question wh ether
the right to primary education, as mentioned
in Article 45 of the Constitution of India,
is a Fundamental Right under Article 21 did
not arise in Mohini Jain’s case and no
finding or observation on that question was
called for. It was contended befor e us that
since a positive finding on that question
was recorded in Mohini Join’s case it
becomes necessary to consider its
correctness on merits. We do not think so.
3. Learned arguments were addressed in
support of and against the aforesaid view
which have been noticed in the judgments of
our learned Brothers. It was contended by
learned Counsel appearing for some of the
parties before us that Article 37 in Part IV
of the Constitution expressly states that
the provisions contained in Part IV shall
not be enforceable by any court and that,
therefore, assuming the right under Articles
45 to be included within the ambit of
Article 21, it would still not be
enforceable. Emphasis was also laid upon the
language used in Article 45 which requires
the State to “en deavour to provide” for the
free and compulsory education of children. A
comparison of the language of Article 45
with that of Article 49 was made and it was 42
suggested that whereas in Article 49 an
“obligation” was placed upon the State, what
was required by Article 45 was “endeavour”
by the State. We are of the view that these
arguments as also the arguments of counsel
on the other side and the observations in
the decisions relied upon by them would need
a thorough consideration, if necessary by a
larger Bench, in a case where the question
squarely arises.
4. Having given our anxious consideration to
the arguments in favour of and against the
question aforementioned, we are of the view
that we should follow the well established
principle of not proceeding t o decide any
question which is not necessary to be
decided in the case. We, therefore, do not
express any opinion upon this question
except to hold that the finding given in
Mohini Jain’s case on this question was not
necessary in that case and is, therefo re,
not binding Law. We are of the view that if
it becomes necessary to decide this question
in any subsequent case then, for the reasons
set out above and having regard to its vast
impact, inter alia on the country’s
financial capacity, the question may b e
referred to a larger Bench for decision.
5. For the purposes of these cases, it is
enough to state that there is no Fundamental
Right to education for a professional degree
that flows from Article 21.”
(emphasis supplied by us) 43
The respondent-writ petitioners challenged promulgation
of SRO No.156 dated 28.06.2007; SRO No.158 dated 28.06.2007
and SRO No.268 dated 01.07.2010 . It is pertinent to be
mentioned here that in the case of United International
University and other vs. the Commissioner of Taxes and
others, reported in 2017 11 ALR (HCD) 6, a larger Bench of
the High Court Division (wherein the author judge of the
impugned judgment and order was a member) in discussing the
contents of SRO No.454 -L/80 dated 31.12.1980 as amended by
mainly SRO No.178 dated 03.07.2002 observed that:
“Be that as it may, we are of the opinion
that the Government has jurisdiction to issue
Notification exempting or reducing income tax
of any university or educational institution
under Section 44(4)(b) of the Ordinance. In
fact, by subsequent Notification, being SRO
No.268-Law-Income Tax/2010 dated 1 st July,
2010 the Government has done so.”
(emphasis supplied by us)
Said judgment of the larger Bench was affirmed by
this Division on 6th February, 2017, in Civil Petition for
Leave to Appeal Nos.1896-1900 of 2015.
By the impugned judgment and order the High Court
Division declared all the SROs including SRO No.268 -44
Ain/Aikor/2010 dated 01.07.2010 as ultra -vires to the
Constitution and the Ordinance, 1984.
In the circumstances narrated above, despite a clear
observation of the larger Bench which is affirmed by this
Division, can the High Court Division pass the impugned
judgment and order which is totally contradictory to the
judgment passed earlier.
The observation of the High Co urt Division that tax
on private universities will increase the education cost
of the students is not correct, since income tax is a
direct tax payable only when a private university earns
income; In case of loss no tax is payable.
It is pertinent to mention here that p rovisions providing
for an exemption may be properly construed strictly against the
person who makes the claim of an exemption. In other words,
before an exemption can be recognized, the person or property
claimed to be exempt must come clearly within the language
apparently granting the exemption . (The Construction of
Statutes, by Earl T. Crawford, reprinted in 2014) 45
Moreover, exemption laws are in derogation of equal rights,
and this is an equally important reason for construing them
strictly. And a third reason appears from the Court’s language
in the case of Bank of Commerce vs. Tennessee, reported in 161
U.S. 134, 145; 16 S.Ct. 456; 40 L.Ed. 645, held:
“Taxes being the sole means by which
sovereignties can maintain their existence, any
claim on the part of anyone to be exempt from the
full payment of his share of taxes on any portion
of his property must on the account be clearly
defined and founded on plain language. There must
be no doubt or ambiguity used upon which the
claim to t he exemption is founded. It has been
said that a well founded doubt is fatal to the
claim; no implications will be indulged in for
the purpose of construing the language used as
giving the claim for exemption, where such claim
is not founded upon the plain and clearly
expressed intention of the taxing power.”
However, the writ -petitioner-respondent private
universities may not be required paying tax if it enjoys
tax exemption under any lawful arrangement.
Accordingly, all the civil appeal s are disposed of
with the observation made above.
The impugned judgment and order dated 09.05.2016
passed by the High Court Division in Writ Petition 46
Nos.9562-9564 of 2008, 9566 -9567 of 2008, 11545 of 2015,
2110 of 2013, 6861 of 2012, 10929 of 2014, 8187 of 2015,
8930 of 2011, 11546 of 2015, 3681 -3682 of 2013, 1969 of
2009, 2682 of 2016, 6404 of 2014, 4049 of 2013, 8507 of
2010, 3423 of 2012, 5793 -5794 of 2014, 11195 of 2014,
14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of 2013,
9733 of 2015, 9934 of 2015, 12558 of 20 12, 986-987 of
2011, 4878 of 2013, 10769 of 2014, 8697 of 2011, 5795 of
2014, 2510 of 2015, 3371 of 2015, 6177 of 2013, 1131 of
2009, 8985 of 2010, 11840 of 2015, 4048 of 2013, 12885 of
2015 and 1891 of 2015 is hereby set-aside.
No order as to costs.
J.
J.
J.
J.
The 27th February, 2024.
Jamal/B.R./Words-*8856*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 179 OF 2018
(From the judgement and order dated the 6th day of
September 2016 passed by the High Court Division in Civil
Revision No.914 of 2015).
Durnity Daman Commission,
represented by its Chairman
: . . . . Appellant
-Versus-
Md. Mizanur Rahman and
others
: . . . Respondents
For the Appellant : Mr. Md. Khurshed Alam Khan, Senior
Advocate, instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record
For the Respondents : Mr. Aneek R. Hoque, Advocate with Mr.
Rafsan-Al-Alvi, Advocate, instructed by
Mr. Syed Mahbubar Rahman,
Advocate-on-Record
Date of hearing :
The 23th day of January and 28th day of
February, 2024
Date of judgment : The 5th day of March, 2024
JUDGMENT
M. Enayetur Rahim, J: This civil appeal, by leave, is
directed against the judgment and order dated 06.09.2016
passed by a Division Bench of the High Court Division in
Civil Revision No.914 of 2015 making the Rule absolute.
The facts, relevant for disposal of this civil
appeal, in brief, are that the present respondent Nos. 1-6
as plaintiffs instituted Money Suit No. 06 of 2012 in the
Court of Joint Sessions Judge, 2nd Court, Dhaka, impleading
present respondent Nos. 7-13 for realization of Tk.
55,99,23,386.00/-/-(fifty five crore, ninety nine lakh, 2
three hundred and eighty six). In the plaint, it was
contended that defendant No.1 and 2-5 of the suit made
several advertisements in their website and seminars
regarding their business activities as gold trading, money
multiplication profit on any investment in the company.
The plaintiffs had deposited their money in the
defendants' account by deposit slips and by online
transfer in the respective ID numbers of the plaintiffs.
The plaintiffs deposited in the account of defendant No.1
Tk.24,44,20,929/-in good faith upon assurance of the
defendants' business policy. As a cunning device to
defraud the investors including the plaintiffs, defendant
Nos. 1-5 showed profits online against respective IDs of
the investors including the plaintiffs, but when the
plaintiffs went to draw their profits, the defendants did
not give any money. Thereafter, the plaintiffs went to the
defendant No.1 only to find the owners and other directors
of defendants’ Company but they went into hiding.
Thereafter, the plaintiffs having come to know about some
bank accounts of defendant No.1 on 16.02.2012 filed an
application before the Chairman of Bangladesh
Telecommunication Regulatory Commission (BTRC) requesting
him to take effective steps. On 10.02.2012, the plaintiff
respondent Nos. 1-5 went to the defendant’s office and
requested to return their deposited money but the
defendants bluntly refused. Then the plaintiffs on the
selfsame statement of the facts filed an application
under Order XXXIX Rule 1 and 2 read with section 151 of
the Code of Civil Procedure for temporary injunction
restraining defendants No.1-5 from withdrawing money from 3
the bank accounts and the plaintiffs also filed an
application under Order XXXVIII, Rule 5 read with section
151 of the Code of Civil Procedure praying for attachment
of the bank accounts of defendant No.1 maintained with
defendant Nos.6-8 banks before judgment.
Upon hearing, the trial Court by order dated
28.03.2012 granted temporary injunction and allowed the
application for attachment. The defendants having not
entered appearance in the suit, the trial Court decreed
the suit ex-parte vide judgment and order dated
26.11.2013.
The plaintiffs as decree holders levied the decree in
execution in Money Decree Execution Case No.1 of 2014 on
09.03.2014. On 31.03.2014 the decree holders filed an
application in the executing Court praying for a direction
upon the defendant-judgment debtor Nos. 6-8 Banks to issue
pay Order/DD/Cash of the decretal amount including
interest till issuance of Pay Order/DD/Cash, and also for
an order of attaching bank accounts of defendant-judgment
debtors No.1-5 till realization of decretal amount with
interest and initially, for issuance of a direction upon
defendant-judgment debtor No. 7, BRAC Bank, Elephant Road
Branch, Dhaka to issue Pay Order including interest at
bank rate prevailing on 23.02.2012 in favour of the decree
holders from account No. 1535201690148001 maintained by
defendant-judgment debtor Nos. 1-5.
The executing Court by order dated 25.06.2014 allowed
the decree holders’ application dated 31.03.2014 and
directed to issue a letter upon judgment debtor No. 7,
BRAC Bank Ltd. calling upon it to submit statement of 4
Account No. 1535201690148001 maintained by judgment debtor
Nos.1-5. Thereafter, on 10.07.2014 the statement of the
account was produced before the Court. The executing Court
by order No.8 dated 14.07.2014 issued an order directing
judgment debtor No.7 BRAC Bank Ltd. to issue pay order of
Tk. 65,65,72,154/- from the Account No. 1535201690148001
of judgment debtor No. 1-5.
On 20.07.2014, defendant-judgment debtor No. 7, BRAC
Bank Ltd., Elephant Road Branch, Dhaka filed an
application in the executing Court praying for re-
consideration of the order dated 14.07.2014 to issue pay
order and to stay operation of the said order till further
order, stating therein, inter alia, that the judgment
debtor No.7 had no knowledge of the money decree execution
case till receipt of the said order. The Money Laundering
prevention Division of Bangladesh Bank temporarily
suspended operation of the said account along with other
accounts in view of enquiry and investigation by Anti-
Corruption Commission. Subsequently, on the prayer of
Anti-Corruption Commission, the Special Judge and
Metropolitan Sessions Judge, Dhaka, by order dated
06.07.2010, accorded permission to freeze the said account
along with accounts maintained with 5 others banks, and as
such, the bank account in question is frozen now. Since
the order according permission to freeze the account in
question passed by the superior Court was not within the
knowledge of the executing Court, the order dated
14.07.2014 was required to be stayed till further order.
The decree holders filed a written objection against
the said application dated 20.07.2014 filed by judgment 5
debtor No.7. Thereafter, several times the hearing of the
application was adjourned for producing necessary
documents and paper and on 15.10.2014, after hearing both
the parties, and perusing the papers submitted by both
sides, the executing Court by order No. 16 held that it
could not come to a conclusion as to whether the account
in question has been frozen by a competent Court or Anti
Corruption Commission, and in such a situation the decree
holders were directed to file an affidavit in support of
their claim, and 17.11.2014 was fixed for further order
subject to filing of that affidavit.
On 13.11.2014, the decree holders filed affidavit in
compliance of the order dated 15.10.2014. On 17.11.2014,
the matter was taken up and in view of the conflicting
claim of the decree holders and judgment debtor No. 7, the
executing Court ordered to send a letter to Director
General (Legal and Prosecution), Anti-Corruption
Commission, to let the Court know the real state of
affairs fixing 22.01.2012 for receiving reply. No reply
came on the said date and next date was fixed for order on
22.02.2012. On that day it was further adjourned to
09.03.2012 and the executing Court on 09.03.2015 rejected
the decree holders' application.
Being aggrieved, the plaintiffs filed Civil
Revision No. 914 of 2015 before the High Court Division.
A Division Bench of the High Court Division after
hearing the Rule by the impugned judgment and order dated
06.09.2016 made the Rule absolute and thus, set aside the
order dated 09.03.2015 rejecting the plaintiffs’-decree 6
holders’ prayer to direct the defendant-judgment debtor to
comply with the order dated 14.07.2014.
Feeling aggrieved by the said judgment and order the
Durnity Daman Commission filed Civil Petition for Leave to
Appeal No.198 of 2018. Accordingly, leave was granted on
01.08.2018. Hence, this appeal.
Mr. Md. Khushed Alam Khan, learned Senior Advocate
appearing for the appellant made submissions in line with
grounds upon which leave was granted. In addition, the
learned Advocate submits that with regard to the Unipay 2U
a money laundering case (Special Case No.2 of 2014) was
pending before the Special Judge, Court No.3, Dhaka at the
relevant time and in the meantime some of the defendants-
judgment debtors have been convicted by the learned
Special Judge having found guilty of the offence under
section 4(2) of the Money Laundering Protirodh Ain, 2012
and some of the convicted persons have filed appeal before
the High Court Division. But by suppressing the fact and
without impleading the Durnity Daman Commission, the
plaintiffs filed the suit and obtained an ex-parte decree
and as such, the impugned judgment and order passed by the
High Court Division is liable to be set aside. The learned
Advocate also submits that in the Money Laundering
Protirodh Ain, 2012 there are provisions of section 15 and
16 for releasing the attached or frozen property. Section
15 relates to releasing the attached property and section
16 deals with the provision for appeal. But without
exhausting that forum and without impleading the Durnity
Daman Commission the suit was filed and an ex-parte decree
was obtained and in the writ petition Anti-Corruption 7
Commission was also not made a party as such considering
the same the impugned judgment and order passed by the
High Court Division is liable to be set aside.
Mr. Aneek R Hoque, learned Advocate, appearing for
the respondents makes submissions supporting the impugned
judgment and order of the High Court Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division as well as
the judgment and order of learned District Judge and other
materials as placed before us.
In the instant case from the records and submissions
made by the learned Advocates for the respective parties,
the following facts are revealed:
i) that the respondent Nos.1-6 (plaintiffs)
obtained a decree in Money Suit No. 06 of 2012,
passed by the learned Joint District Judge, Dhaka in
respect of Tk. 55,99,23,386/-(fifty five crore ninety
nine lakh three hundred and eighty six) against
respondent Nos. 7-13 (defendants);
ii) after obtaining the decree respondent Nos.1-
6 filed Money Execution Case No. 1 of 2014;
iii) the executing Court ultimately refused to
direct the judgment debtor Brac Bank to pay the money
to the decree holders on the plea that the account of
the judgment debtor was frozen by the order of the
competent Court;
iv) some of the defendants-judgment debtors
were convicted by the learned Special Judge, Court
No.3, Dhaka in Special Case No. 2 of 2014 having 8
found guilty under section 4(2) of the Money
Laundering Protirodh Ain, 2009 read with section 4(2)
of the Money Laundering Protirodh Ain, 2012 and
sentenced thereunder to suffer rigorous imprisonment
for 12 years along with a fine of Tk.
2700,42,11,784.14 (two thousand and seven hundred
crore, forty two lakh, eleven thousand, seven hundred
and eighty four taka and fourteen paisa) to each
convict and the accounts in question in respect of
Tk. 420,14,29,663.05 (420 crore 14 lakh 29 thousand 6
hundred and 63 and 05 paisa) were confiscated in
favour of the State;
v) the convicted persons preferred Criminal
Appeal being Nos.2598 of 2019 and 2528 of 2019 before
the High Court Division against the said judgment and
order of conviction and sentence, which are still
pending.
In view of the above facts, it is now admitted
position that though the respondent Nos. 1-6 obtained an
ex-parte decree for realization of money in Money Suit No.
6 of 2012 and eventually filed Money Execution Case No. 01
of 2014 before the learned Joint District Judge, 2nd Court,
Dhaka but facts remain that the accounts of the judgment
debtors-respondents were frozen and confiscated by a
competent Court and a criminal appeal is pending before
the High Court Division.
The High Court Division though noticed that the
accounts were frozen but in an arbitrary and unprecedented
manner held that the Anti-Corruption Commission did not
take proper step to place document in regard to the 9
freezing of the accounts of the judgment debtors. The High
Court Division has failed to take notice that in the writ
petition the Anti-Corruption Commission was not made a
party and they were not given a chance to place their
case. When the High Court Division noticed that at the
instance of the Anti-Corruption Commission the accounts of
the judgment debtors were frozen, the High Court Division
ought not to pass any order in regard to the freezing of
the accounts. Knowing of the facts of freezing of the
accounts of the judgment debtors, the High Court Division
has passed the impugned judgment and order, which is
arbitrary and cannot be sustainable in law.
The victims or the decree holders as the case may be,
who deposited money to the Unipay 2U they can claim their
money under the Money Laundering Protirodh Ain, 2012. In
that Ain, there is specific provision for the same.
Section 15, 16, 17, 18, and 19 relate to the
freezing/attachment of property and confiscation of the
property and appeal by the aggrieved party against those
orders. The above provisions of law run as follows:
""15| Aeiæ×K…Z ev ‡µvKK…Z m¤úwË †diZ cÖ`vb|-(1) aviv 14 Gi Aaxb Av`vjZ †Kvb m¤úwË Aeiæ×KiY ev ‡µvK Av‡`k cÖ`vb Kwi‡j, Awfhy³ e¨w³ ev mËv e¨ZxZ Ab¨ †Kvb e¨w³ ev mËvi D³ m¤úwˇZ †Kvb ¯^v_© _vwK‡j wZwb ev D³ mËv Dnv †diZ cvBevi Rb¨ Aeiæ×KiY ev †µvK Av‡`k cÖPv‡ii ZvwiL nB‡Z 30(wÎk) w`‡bi g‡a¨ Av`vj‡Z Av‡e`b Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb e¨w³ ev mËv Av`vj‡Z Av‡e`b Kwi‡j Av‡e`bc‡Î wb¤œewb©Z Z_¨vw` D‡jøL Kwi‡Z nB‡e, h_vt- (K) gvwbjÛvwis ev †Kvb m¤ú„³ Aciv‡ai mwnZ D³ m¤úwËi cÖZ¨ÿ ev c‡ivÿfv‡e †Kvb mswkøóZv bvB; (L) Av‡e`bKvix cÖZ¨ÿ ev c‡ivÿfv‡e Awfhy³ gvwbjÛvwis ev Ab¨ †Kvb m¤ú„³ Aciv‡ai mv‡_ m¤ú„³ bb; (M) Av‡e`bKvix Awfhy‡³i bwgbx bb ev Awfhy‡³i c‡ÿ †Kvb `vwqZ¡ cvjb Kwi‡Z‡Qb bv; (N) Aeiæ×KiY ev †µvKK…Z m¤úwˇZ Awfhy³ e¨w³ ev mËvi †Kvb ¯^Z¡, ¯^v_© ev gvwjKvbv bvB; Ges (O) Aeiæ×KiY ev †µvKK…Z m¤úwˇZ Av‡e`bKvixi ¯^Z¡, ¯^v_© I gvwjKvbv iwnqv‡Q| 10
(3) aviv 14 Gi Dc-aviv (5) G hvnv wKQzB _vKzK bv †Kb, GB avivi Aaxb m¤úwË †diZ cvBevi Rb¨ Av`vjZ †Kvb Av‡e`bcÖvß nB‡j Av‡e`bKvix, Z`šÍKvix ms¯’v I Awfhy³ e¨w³ ev mËv‡K ïbvbxi my‡hvM cÖ`vb Kwi‡eb Ges ïbvbx A‡šÍ cÖ‡qvRbxq KvMRvw` ch©v‡jvPbvµ‡g I ivóª KZ…©©K ewY©Z m¤úwˇZ cÖZ¨ÿ ev c‡ivÿfv‡e gvwbjÛvwis ev m¤ú„³ Aciv‡ai mv‡_ m¤ú„³Zvi MÖnY‡hvM¨ m‡›`‡ni †Kvb KviY Dc¯’vcb bv Kwi‡j, Dc-aviv (1) Gi Aaxb `vwLjK…Z Av‡e`bKvixi Av‡e`b m¤ú‡K© Av`vjZ mš‘ó nB‡j Aeiæ×KiY ev †µvK Av‡`k evwZjµ‡g m¤úwËwU, Av‡`‡k DwjøwLZ wba©vwiZ mg‡qi g‡a¨, Av‡e`bKvixi AbyKz‡j n¯ÍvšÍ‡ii Av‡`k cÖ`vb Kwi‡eb| 16| m¤úwË Aeiæ×KiY ev †µvK Av‡`‡ki weiæ‡× Avcxj|- (1) GB AvB‡bi Aaxb Av`vjZ †Kvb m¤úwËi Aeiæ×KiY ev †µvK Av‡`k cÖ`vb Kwi‡j D³iƒc Av‡`‡ki weiæ‡× msÿzä e¨w³ ev mËv 30(wÎk) w`‡bi g‡a¨ nvB‡KvU© wefv‡M Avcxj Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Avcxj `v‡qi Kiv nB‡j Avcxj Av`vjZ cÿe„›`‡K, ïbvbxi Rb¨ hyw³m½Z mgq w`qv, ïbvbx A‡šÍ †hBiƒc Dchy³ g‡b Kwi‡e †mBiƒc Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (3) aviv 14 Gi Aaxb †Kvb m¤úwËi wel‡q Av`vjZ KZ…©K cÖ`Ë Aeiæ×KiY ev †µvK Av‡`‡ki weiæ‡× ‡Kvb msÿzä ev mËv Avcxj Kwi‡j Ges Avcxj Av`vjZ KZ„©K wfbœiƒc †Kvb Av‡`k cÖ`vb Kiv bv nB‡j Avcxj wb®úwË bv nIqv ch©šÍ D³iƒc Aeiæ×KiY ev †µvK Av‡`k Kvh©Ki _vwK‡e| 17| m¤úwËi ev‡RqvßKiY|-(1) GB AvB‡bi Aaxb †Kvb e¨w³ ev mËv gvwbjÛvwis Aciv‡a †`vlx mve¨¯’ nB‡j Av`vjZ Aciv‡ai mwnZ cÖZ¨ÿ ev c‡ivÿfv‡e m¤ú„³ †`‡k ev †`‡ki evwn‡i Aew¯’Z †h †Kvb m¤úwË iv‡óªi AbyyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (2) Dc-aviv (1) G hvnv wKQzB _vKzK bv †Kb GB AvB‡bi Aaxb gvwbjÛvwis Aciv‡ai mv‡_ mswkøó †Kvb AbymÜvb I Z`šÍ ev wePvi Kvh©µg PjvKvjxb mswkøó Av`vjZ cÖ‡qvRb‡ev‡a †`‡k ev †`‡ki evwn‡i Aew¯’Z †h †Kvb m¤úwË iv‡óªi AbyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (3) GB AvB‡bi Aaxb gvwbjÛvwis Aciv‡ai Rb¨ †`vlx mve¨¯’ †Kvb e¨w³ cjvZK _vwK‡j ev Awf‡hvM `vwL‡ji ci g„Zz¨eiY Kwi‡j Av`vjZ D³ e¨w³i Aciv‡ai m¤ú„³ m¤úwËI iv‡óªi AbyKz‡j ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e| e¨vL¨v|-h_vh_ Kvh© e¨e¯’v MÖnY Kiv m‡ËI †MÖdZvix c‡ivqvbv Rvixi ZvwiL nB‡Z 6 (Qq) gv‡mi g‡a¨ hw` Awfhy³ e¨w³ Av`vj‡Z AvZ¥mgc©b Kwi‡Z e¨_© nq ev D³ mg‡qi g‡a¨ Zvnv‡K †MÖdZvi Kiv bv hvq Zvnv nB‡j D³ e¨w³ GB avivi D‡Ïk¨ c~iYK‡í cjvZK ewjqv MY¨ nB‡eb| (4) GB avivi Aaxb Av`vjZ KZ…©K †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`v‡bi c~‡e© wKsev gvgjv ev Awf‡hvM `v‡qi Kwievi c~‡e© hw` †Kvb e¨w³ ev mËv mij wek^vm Ges Dchy³ g~j¨ cÖ`vb mv‡c‡ÿ ev‡Rqv‡ßi Rb¨ Av‡e`bK…Z m¤úwË µq Kwiqv _v‡Kb Ges Av`vjZ‡K wZwb ev D³ mËv GB g‡g© mš‘ó Kwi‡Z mÿg nb †h, wZwb ev D³ mËv D³ m¤úwËwU gvwbjÛvwis Gi mwnZ m¤ú„³ ewjqv ÁvZ wQ‡jb bv Ges wZwb ev D³ mËv mij wek^v‡m m¤úwËwU µq KwiqvwQ‡jb, Zvnv nB‡j Av`vjZ D³ m¤cwË ev‡Rqvß Kwievi Av‡`k cÖ`vb bv Kwiqv Dnvi weµqjä A_© ivóªxq †KvlvMv‡i, Av`vjZ KZ…©K wba©vwiZ mgqmxgvi g‡a¨ Rgv †`Iqvi Rb¨ †`vlx mve¨¯’ e¨w³ ev mËv‡K wb‡`©k w`‡Z cvwi‡e| (5) Av`vjZ hw` gvwbjÛvwis ev m¤ú„³ Aciv‡ai mv‡_ cÖZ¨ÿ ev c‡ivÿfv‡e mswkøó m¤úwËi Ae¯’vb wba©viY ev ev‡Rqvß Kwi‡Z bv cv‡ib ev m¤úwË Ab¨ ‡Kvb fv‡e e¨env‡ii d‡j Aw¯ÍZ¡ wejyß nq, Zvnv nB‡j- (K) Aciv‡ai mv‡_ m¤ú„³ bq Awfhy³ e¨w³i Ggb mgg~‡j¨i m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡Z cvwi‡e; (L) Awfhy³ e¨w³i weiæ‡× †h cwigvY m¤úwË Av`vq Kiv hvB‡e bv Zvnvi mgcwigvY Avw_©K `Û cÖ`vb Kwi‡Z cvwi‡e| 11
(6) GB avivi Aaxb †Kvb m¤úwË ev‡Rqvß Kiv nB‡j Av‡`‡ki †bvwUk Av`vjZ KZ©„K †h e¨w³ ev mËvi wbqš¿‡Y m¤úwËwU iwnqv‡Q †mB e¨w³ ev mËvi me©‡kl ÁvZ wVKvbvq †iwR÷vW© WvK‡hv‡M cvVvB‡Z nB‡e Ges m¤úwËi Zdwmjmn mKj weeiY D‡jøLµ‡g miKvwi †M‡R‡U Ges Ab~b¨ 2 (`yB) wU eûj cÖPvwiZ RvZxq ˆ`wbK cwÎKvq [1(GK)wU evsjv I 1(GK)wU Bs‡iRx] weÁwß cÖPvi Kwi‡Z nB‡e| (7) GB avivi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³ m¤úwËi gvwjKvbv iv‡óªi Dci b¨¯Í nB‡e Ges ev‡Rqvß Kwievi Zvwi‡L m¤úwËwU hvnvi wR¤§vq ev gvwjKvbvq _vwK‡e wZwb ev mswkøó mËv h_vkÖxNª m¤¢f, D³ m¤úwËi `Lj iv‡óªi eive‡i n¯ÍvšÍi Kwi‡eb| (8) cÖZ¨ÿ ev c‡ivÿfv‡e Aciva jä m¤úwË hw` ˆea Dcv‡q AwR©Z A_© ev m¤úwËi mwnZ mswgwkÖZ Kiv nBqv _v‡K Zvnv nB‡j D³ m¤úwˇZ Av`vjZ KZ©„K wba©vwiZ Aciva jä A_© ev m¤úwËi g~‡j¨i Dci A_ev Aciva jä ev m¤úwËi g~j¨ wba©viY Kiv m¤¢e bv nB‡j AR©‡bi Dcvq wbwe©‡k‡l mswgwkÖZ m¤ú~b© A_© ev m¤úwË iv‡óªi AbyKz‡j ev‡Rqvß Av‡`k cÖ`vb Kiv hvB‡e| 18| ev‡RqvßK…Z m¤úwË †diZ cª`vb|-(1) aviv 17 Gi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³ m¤úwˇZ †`vlx e¨w³ ev mËv e¨ZxZ Ab¨ †Kvb e¨w³ ev mËvi †Kvb ¯^Z¡, ¯^v_© ev AwaKvi _vwK‡j wZwb ev D³ mËv Dnv †diZ cvBevi Rb¨ ev‡RqvßKi‡Yi weÁwß cwÎKvq me©‡kl cÖPv‡ii ZvwiL nB‡Z 30(wÎk) w`‡bi g‡a¨ Av`vj‡Z Av‡e`b Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Av‡e`bcÖvß nB‡j Av`vjZ gvgjv `v‡qiKvix, †`vlx e¨w³ ev mËv Ges Av‡e`bKvix‡K, ïbvbxi Rb¨ hyw³m½Z mgq w`qv, ïbvbx A‡šÍ wbb¥ewY©Z welqmg~n we‡ePbv Kwiqv cÖ‡qvRbxq Av‡`k cÖ`vb Kwi‡Z cvwi‡e, h_vt- (K) Aciva msNU‡bi mwnZ Av‡e`bKvixi ev ev‡RqvßK…Z m¤úwËi ev m¤úwËi †Kvb As‡ki †Kvb ms‡køl wQj wKbv; (L) ev‡Rqvß m¤úwË AR©‡b Av‡e`bKvixi ˆea AwaKvi iwnqv‡Q wKbv; (M) Aciva msNU‡bi mgqKvj Ges ev‡RqvßK…Z m¤úwË Av‡e`bKvixi gvwjKvbvq Avwmqv‡Q GBiƒc `vweK…Z mgqKvj; Ges (N) Av`vj‡Zi wbKU cÖvmw½K we‡ewPZ Ab¨ †h †Kvb Z_¨| 19| ev‡RqvßKiY Av‡`‡ki weiæ‡× Avcxj|-(1) GB AvB‡bi Aaxb Av`vjZ †Kvb m¤úwË ev‡Rqvß Kwievi Av‡`k cÖ`vb Kwi‡j D³iƒc Av‡`‡ki weiæ‡× msÿä cÿ 30(wÎk) w`‡bi g‡a¨ nvB‡KvU© wefv‡M Avcxj Kwi‡Z cvwi‡eb| (2) Dc-aviv (1) Gi Aaxb †Kvb Avcxj `v‡qi Kiv nB‡j Avcxj Av`vjZ Dfq cÿ‡K, ïbvbxi hyw³m½Z my‡hvM cÖ`vb Kwiqv, ïbvbx A‡šÍ †hBiƒc Dchy³ g‡b Kwi‡e †mBiƒc Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó
In view of the above provisions of law if anyone has
claim or interest in the money/property attached/frozen or
confiscated by the Court concerned, they can move before
the competent Court for their redress. In the instant case
they may move before the High Court Division for their
claim as the accounts of the judgment debtors are/were
confiscated, if so advised and if such application is 12
filed, the High Court Division has got the authority to
deal with the matter in accordance with law.
In the instant case, it is admitted fact that Anti-
Corruption Commission till date did not make any
notification in the newspaper in respect of the
confiscated property as required under the law. Thus the
Anti-Corruption Commission is directed to publish notice
in the daily newspaper in regard to the confiscated
property within 30 (thirty) days from the date of receipt
of this judgment and the respondent, decree holders,
plaintiffs or any other claimant are at liberty to
approach before the High Court Division for their
respective claim if so advised.
In view of the above, we are inclined to dispose of
the appeal.
Accordingly, the appeal is disposed of without any
order as to costs.
The judgment and order dated 06.09.2016 passed by the
High Court Division in Civil Revision No. 914 of 2015 is
set aside.
C. J.
J.
J.
J.
B.S./B.R./*Words-3,432*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CRIMINAL APPEAL NO.72 OF 2019
(From the judgment and order dated 11.10.2017 passed by the High Court Division in Death Reference
No.38 of 2011 with Criminal Appeal No.3787 of 2011 and Jail Appeal No.147 of 2011).
Chaitonya Sarkar ……..….Appellant
-Versus-
The State and another .…..….Respondents
For the appellant
: Mr. Shaikh Azmol Hayat, Advocate with
Mr. Hamidur Rahman, Advocate,
instructed by Mr. Md. Nurul Islam
Chowdhury, Advocate-on-Record.
For the respondent
No.1
: Mr. Md. Sarwar Hossain, Deputy Attorney
General with Mr. Mohammad Saiful
Alam, Assistant Attorney General,
instructed by Mr. Haridas Paul, Advocate-
on-Record.
For the respondent
No.2
: Not represented.
Date of hearing and
judgment
: The 03rd day of January, 2024
JUDGMENT
Obaidul Hassan, C.J. This Criminal Appeal by leave granting
order dated 15.07.2019 in Civil Petition for Leave to Appeal No.148 of
2018 is directed against the judgment and order of conviction and
sentence passed by the High Court Division on 11.10.2017 in Death
Reference No.38 of 2011 heard analogously with Criminal Appeal
No.3787 of 2011 and Jail Appeal No.147 of 2011 arising out of Motlab
South Police Station Case No.03 dated 02.10.2007 corresponding to
=2=
G.R. No.90 of 2007 and Nari-O-Shishu Nirjatan Daman Case No.01 of
2008 dismissing the appeal converting the conviction of the appellant
awarded under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman
Ain, 2000 (for short Nari-O-Shishu Ain) to one under Section 302 of
the Penal Code, 1860 and thereby commuting the sentence of the
appellant from death penalty to imprisonment for life.
The prosecution case, in short, is that one Kartick Baidya
lodged an ejahar with the Motlob South Police Station being Motlob
South Police Station Case No.03 dated 02.10.2007 under Sections
11(Ka)/30 of Nari-O-Shishu Ain alleging, inter alia, that Sanchita
Rani, daughter of the informant was married to the accused
Chaitonya Sarker. After marriage they were living together as
husband and wife, but from the very beginning of their conjugal life
the accused-appellant had been demanding dowry amounting
Tk.1,00,000.00 from the victim Sanchita Rani and used to assault her.
On 02.10.2017 at about 09:00 a.m. one Kanailal, the father of the
accused told the informant over mobile phone that due to physical
illness the victim was got admitted into the Motlab Hospital.
Thereafter, the informant along with his wife came to the house of
the accused-appellant on the same day at 1.00 p.m. and found the
dead body of the victim therein. On query to the inmates of the house
they told that the victim committed suicide.
=3=
The Investigating Officer, after completing investigation,
submitted Charge Sheet being No.88 dated 11.11.2007 under Section
11(Ka)/30 of Nari-O-Shishu Ain against the convict-appellant and
others. The case was eventually transferred to the Nari-O-Shishu
Nirjatan Daman Tribunal No.2, Chandpur (for short Tribunal) for
trial and charge was framed against the convict-appellant and others
under the aforesaid provisions of law. To substantiate the case, the
prosecution examined as many as seven witnesses. Upon closure of
the evidence of the prosecution witnesses, the convict-appellant
along with others were examined under Section 342 of the Code of
Criminal Procedure to which they pleaded innocence. They informed
the Court that they would not adduce any evidence in support of
their plea.
The defence case, as it reveals from the trend of cross-
examination is that the convict-appellant along with others were
innocent and the victim committed suicide, but they had been falsely
implicated in this case.
Tribunal after considering the evidences and materials on
record vide judgment and order dated 19.06.2011 found the convict-
appellant guilty and sentenced him to death penalty under Section
11(Ka) of Nari-O-Shishu Ain and acquitted the rest of the accused
persons. Death sentence proceeding has been submitted to the High
Court Division by way of Reference by the Tribunal and the
=4=
Reference has been noted as Death Reference No.38 of 2011. The
convict-appellant also preferred Criminal Appeal No.3787 of 2011
and Jail Appeal No.147 of 2011 before the High Court Division.
The High Court Division vide judgment and order of
conviction and sentence dated 11.10.2017 rejected the Death
Reference and dismissed the Criminal Appeal and Jail Appeal.
However, the High Court Division converted the conviction of the
appellant from Section 11(Kha) of Nari-O-Shishu Ain to one under
Section 302 of the Penal Code, 1860 and the death sentence was
commuted to imprisonment for life.
Being aggrieved by and dissatisfied with the impugned
judgment and order of conviction and sentence dated 11.10.2017
passed by the High Court Division, the convict-appellant filed the
Criminal Petition for Leave to Appeal No.148 of 2018 before this
Division and leave was granted on 15.07.2019 and hence the instant
Criminal Appeal.
Mr. Shaikh Azmol Hayat with Mr. Hamidur Rahman, learned
Advocates appearing for the convict-appellant took us through the
First Information Report(FIR), the Inquest Report, the Post Mortem
Report, the Charge Sheet, testimonies of the witnesses, the judgments
and orders passed by the Tribunal and the High Court Division,
connected materials on record submits that the High Court Division
to consider the judgment and order of conviction and sentence is bad
=5=
in law as well as in facts and, as such, the impugned judgment and
order of conviction and sentence is liable to be set aside. The learned
Counsel for the appellant contend next that the High Court Division
came to a finding that demanding of dowry resulting the murder of
the victim is not proved and, thus, set aside the sentence under
Section 11(Ka) of Nari-O-Shishu Ain and under the said
circumstances, the High Court Division should have sent back the
record for fresh trial to the appropriate Court having jurisdiction
upon framing charge under proper legal provisions, but the High
Court Division wrongly and illegally convicted the appellant under
Section 302 of the Penal Code and sentenced him imprisonment for
life. The learned Counsel argue further that there is no eye witness of
the occurrence and the alleged conviction and sentence is based on
circumstantial evidence along with post mortem report which cannot
be treated as conclusive evidence to prove the guilt of the appellant,
but the High Court Division failed to consider that the judgment and
order of conviction and sentence is based on surmise and conjecture
and not on legal evidence and, as such, the impugned judgment and
order of conviction and sentence is liable to be scraped.
In opposition Mr. Md. Sarwar Hossain, learned Deputy
Attorney General with Mr. Mohammad Saiful Alam, Assistant
Attorney General appearing for the respondent No.1 put forth their
submissions supporting the judgment and order of conviction and
=6=
sentence passed by the High Court Division and the Tribunal and
prayed for dismissal of the appeal.
Now, to ascertain whether the prosecution has been able to
prove the charge against the convict-appellant let us examine and
analyze the depositions of the witnesses adduced by the prosecution.
P.W.1, Kartik Baidya, the informant and father of the victim
Sanchita stated in his deposition that the victim was married to the
accused-appellant three months earlier of the date of occurrence. At
the time of marriage ceremony he gifted gold ornaments weighing
five bhories to the victim and gave cash money amounting
Tk.55,000.00 to the accused and also spent Tk.2.5-3.00 lac in the
marriage. On 02.10.2007 in the morning the father of the accused-
appellant told the informant that his daughter was admitted to
hospital due to serious illness. Soon after the informant started for the
house of the accused, but on the way he came to know that the victim
was killed by the accused persons. The accused persons had been
demanding dowry amounting Tk.1,00,000.00 from the victim on
several occasions, but on her failure to pay the dowry the accused
persons killed the victim. On arrival of the informant at the house of
the accused-appellant at about 2:00 p.m. he found the dead body of
the victim at the door of the house. Subsequently, the police came to
the spot and preparing inquest report, took his signature on the
report and took the dead body to the police station. The informant
=7=
filed ejahar with the police station. This witness identified the FIR and
his signature thereon as Exhibits-1 and 1/1 respectively and also
identified the inquest report and his signature thereon as Exhibits-2
and 2/1 respectively.
During cross-examination he stated that within three months of
marriage the victim came to his house twice to visit them. He did not
assault the victim when she came to his house last time. He knew
Kanailal the son of his neighbour Hiralal. He did not state in the FIR
about getting the victim with Kanai at 9 O’clock in the night. He
denied the defence suggestion to the effect that everyone knew about
the love affair of the victim with Kanailal. He further denied the
suggestion that the accused-appellant declined to take the victim
with him in her in-law’s house last time the victim visited the house
of the informant. He further denied the suggestion that the victim
solemnized her marriage with Kanailal at Kalibari. He further denied
the defence suggestion that the victim committed suicide and the
accused was implicated in the case falsely. This witness stated in his
cross-examination that he found the tongue of the victim coming out
of her mouth.
P.W.2, Kanika Rani, the mother of the victim stated in his
deposition that the accused persons killed his daughter for dowry
amounting Tk.1,00000.00. The father-in-law of the victim informed
them that the victim was sent to the hospital for physical illness.
=8=
Subsequently, on going to the house of the accused-appellant found
the dead body of the victim. The accused killed the victim by
strangulation with saree.
During cross-examination she stated that accused Chaitanya
and the victim went to visit their house 4/5 days before the
occurrence. She further stated that the victim had no relation with
Kanailal, the son of Hiralal. She denied the defence-suggestion that
her daughter had illicit relation with Kanailal and she saw the victim
with Kanailal and informed the said fact to her husband, who
assaulted the victim for the said reason. She further denied the
suggestion that the victim committed suicide and the accused was
implicated in the case falsely.
P.W.3, Md. Monir Hossain stated in his deposition that the
police made inquest of the dead body and prepared inquest report
and he put his signature thereon. This witness identified his
signature in the inquest report as Exhibit-2/2. The police seized some
alamats in his presence and prepared seizure list and he put his
signature thereon. This witness identified the seizure list and his
signature therein as Exhibits-3 and 3/1 respectively.
During cross-examination he stated that he did not read the
seizure list and post mortem report before putting his signatures
therein.
=9=
P.W.4, Abdul Matin Farazi deposed that he put his signatures
in the seizure list and the inquest report. This witness identified his
signature in the inquest report and the seizure list as Exhibits-2/3
and 3/2 respectively.
During cross-examination he stated that he did not know
anything about the occurrence.
P.W.5, Dr. Azharul Islam, stated in his deposition that on
03.10.2007 while he was posted as Medical Officer at Chandpur Sadar
Hospital held autopsy upon the cadaver of victim Sanchita Rani and
gave the following opinion:
“Death in my opinion was due to asphyxia, shock and internal
hemorrhage resulting from strangulation which was ante
mortem and homicidal in nature.”
This witness identified the post mortem report and his
signature therein as Exhibits-4 and 4/1 respectively.
During cross-examination he stated that internal hemorrhage
may cause without injury. The injuries were caused 24-36 hours back.
He denied the defense-suggestion that he prepared the post mortem
report being influenced by the prosecution.
P.W.6, Doyal Baidya stated in his deposition that on 02.10.2007
at about 09:00 a.m. hearing about the illness of the victim went to the
house of the accused-appellant and found the dead body inside. He
came to know that the accused persons murdered the victim for the
demand of dowry. He found the victim’s saree wrapped around her
=10=
throat. The accused persons fled away leaving the dead body
unattended.
During cross-examination he stated that the father of the victim
first knew about illness of victim over phone. He stated further that
the victim had no love affair with Kanailal. He denied the defense-
suggestion that he did not go to the place of occurrence and the
victim had love affair with Kanailal. He further denied the suggestion
that he deposed falsely.
P.W.7, Md. Shajahan Miah, Sub-Inspector of Police and the
Investigating Officer stated in his deposition that during
investigation he visited the place of occurrence and recorded the
statements of witnesses under Section 161 of the Code of Criminal
Procedure and prepared the sketch map and index and also prepared
the inquest report of the cadaver of victim. He sent the dead body of
the victim to the morgue for autopsy. He identified the sketch map,
index and his signatures therein as Exhibits-5, 5/1, 6, 6/1
respectively. He also identified his signature in the inquest report as
Exhibits-2/4. He also seized some alamats including a saree and
prepared the seizure list. This witness identified the said seizure list
and his signature therein as Exhibits-7, 7/1 respectively. He
identified the alamats as material Exhibits I-III. After investigation he
submitted charge sheet against the accused persons.
=11=
During cross-examination he stated that he untied the knot of
saree on the throat of the dead body of victim and found no sign of
hanging. He denied the defense-suggestion that it was a case of
suicide or that he submitted a false report implicating the accused
persons in this case.
These are the witnesses adduced by the prosecution. Out of
seven witnesses P.W.1 is the informant and father of the victim
Sanchita Rani, P.W.2 is the mother of the victim, P.Ws.3 & 4 are the
witnesses of inquest report, P.W.5 is the doctor performing autopsy
of the dead body while P.W.7 is the Investigating Officer and P.W.6 is
the local witness.
It is undisputed that the dead body of the victim Sanchita Rani
was found in the house of the convict-appellant. P.W.1 stated in his
deposition that he found the dead body of the victim in the house of
the convict-appellant. P.W.1 identified his signature in the inquest
report as Exhibit-2/1. P.W.2 stated in her deposition that he saw the
dead body of the victim in the house of the convict-appellant. P.W.3
is one of the witnesses to the inquest report and he identified his
signature in the inquest report as Exhibit-2/2. P.W.4 also identified
his signature in the inquest report as Exhibit-2/3. P.W.6 deposed that
he saw the victim’s dead body in the house of the convict-appellant.
P.W.7 is the Investigating Officer, who prepared the inquest report of
=12=
the victim and he identified the inquest report and his signature
therein as Exhibits-2 and 2/4 respectively.
Now let us examine the post mortem report of the dead body of
victim. P.W.5 is the Doctor, who conducted autopsy upon the
cadaver of the victim and he identified the post mortem report and
his signature therein as Exhibits-4 and 4/1 respectively. P.W.5 gave
the following opinion in the post mortem report:
“Death in my opinion was due to asphyxia, shock and internal
hemorrhage resulting from strangulation which was ante
mortem and homicidal in nature.”
At this juncture, it is congenial to know the difference between
a death due to hanging and strangulation. The differences between
hanging and strangulation is well described in world-acclaimed book
titled ‘Modi’s Medical Jurisprudence and Toxicology’, 23rd edition at
page 583-584 which is extracted under-
“The differences between hanging and strangulation are
given below in tabulated form:
Hanging Strangulation
1 Mostly suicidal. 1 Mostly homicidal.
2 Face Usually pale and
petechiae rare.
2 Face Congested, livid
and marked with
petechiae.
3 Saliva Dribbling out
of the mouth down on
the chin and chest.
3 Saliva No such
dribbling.
4 Neck Stretched and 4 Neck Not so.
=13=
elongated in fresh
bodies.
5 External signs of
asphyxia, usually not
well marked.
5 External signs of
asphyxia, very well
marked (minimal if
death due to vasovagal
and carotid sinus
effect).
6 Bleeding from the nose,
mouth and ears very
rare.
6 Bleeding from the nose
and ears may be found.
7. Ligature mark
Oblique, non-
continuous placed up
in the neck between the
chin and the larynx, the
base of the groove or
furrow hard, yellow
and parchment-like.
7 Ligature mark
Horizontal or transverse
continuous, round the
neck, low down in the
neck below the thyroid,
the base of the groove
or furrow being soft and
reddish.
8 Abrasions and
ecchymoses round
about the edges of the
of the ligature mark,
rare.
8 Abrasions and
ecchymoses round
about the edges of the
ligature mark, common.
9 Subcutaneous tissues
under the mark
White, hard and
glistening.
9 Subcutaneous tissues
under the mark
Ecchymosed.
10 Injury to the muscles of
the neck Rare.
10 Injury to the muscles of
the neck Common.
11 Carotid arteries, 11 Carotid arteries,
=14=
internal coats ruptured
in violent cases of a
long drop.
internal coats ordinarily
ruptured.
12 Fracture of the larynx
and trachea Very rare
and that too in judicial
hanging.
12 Fracture of the larynx
and trachea Often
found also hyoid bone.
13 Fracture-dislocation of
the cervical vertebrae
Common in judicial
hanging.
13 Fracture-dislocation of
the cervical vertebrae
Rare.
14 Scratches, abrasions
and bruises on the face,
neck and other parts of
the body
Usually not present.
14 Scratches, abrasions
fingernail marks and
bruises on the face,
neck and other parts of
the body Usually
present.
15 No evidence of sexual
assault.
15 Sometimes evidence of
sexual assault.
16 Emphysematous bullae
on the surface of the
lungs Not present.
16 Emphysematous bullae
on the surface of the
lungs May be
present.
In view of the above it is transparent that in case of hanging
ligature mark is seen oblique, non-continuous placed up in the neck
between the chin and the larynx while in case of strangulation the
ligature mark is seen horizontal or transverse. In the inquest report
(Exhibit-2) P.W.7, S.I. Md. Shahjahan Mia stated that while untying
=15=
the knot of saree he found a horizontal ligature mark on the neck of
the victim from which it is clear that the death was caused by
strangulation.
The inquest report states that a long blood stain was found on
the upper part of the left thigh of the victim which bears the
testimony of homicidal strangulation. Since in homicidal
strangulation bleeding from the nose and ears may be found.
Again, in case of strangulation the tongue of the victim usually
comes out of the mouth, but P.W.1 stated in his cross-examination
that he saw the tongue of the victim out of her mouth which is a sign
of homicidal strangulation. Furthermore, in hanging saliva is found
dribbling out of the mouth of the victim down on the chin and chest
while in case of strangulation no saliva was found dribbling. In the
case in hand, the inquest report did not mention about the dribbling
of saliva out of the mouth of victim for which it can be termed as the
case of homicidal death by strangulation.
In the Post Mortem Report the following injuries were found:
“One ecchymosis over the mid abdomen size 6”x 4”. One
swelling over the both parietal region in the head size 3”x2”.
One almost circular ligature mark high up of the neck.”
Such injuries clearly indicate the case of strangulation inasmuch as in
case of strangulation scratches, abrasions fingernail marks and
bruises on the face, neck and other parts of the body remain usually
present.
=16=
In view of the discussion made above, we are led to the
conclusion that the victim was killed by strangulation by the convict-
appellant. It is evident from the record of the case that on the relevant
date and time of occurrence the victim was under the custody of her
husband, the convict-appellant and as such he cannot escape his
liability of killing the victim.
It is evident from the record that the P.Ws.1-7 corroborated
each other supporting the prosecution case. All P.Ws. had been cross-
examined by the defence elaborately but nothing could be elicited to
shake their credibility in any manner whatsoever. The Tribunal on
correct appreciation of the evidences on record convicted the convict-
appellant and the High Court Division also lawfully upheld the
conviction of the appellant and as such we do not find any
perversion in the impugned judgment and order of the High Court
Division.
However, on going through the impugned judgment and order
of the High Court Division it appears that the High Court Division
altered the conviction of the convict-appellant one under Section
11(Ka) of Nari-O-Shishu Ain to the one under Section 302 of the Penal
Code on the observation that the prosecution had not been able to
prove the allegation against the convict-appellant of demanding
dowry from the victim. We endorse the aforesaid observation of the
High Court Division as well and as such the said observation does
=17=
call for interference by this Division since there is no satisfactory
evidence available on the record against the convict-appellant about
demanding of dowry from the victim.
Now a pertinent question arises whether the High Court
Division has the jurisdiction to convert the conviction of an accused
under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302
of the Penal Code. The said issue has already been fairly settled by
this Division in the case of State vs. Nurul Amin Baitha reported in 75
DLR(AD)187. The relevant portion of the case is extracted below:
“17. In order to convict a person under minor offence,
though charged under major offence, the ingredients
constituting the offence under the minor offence should
be common as that of the ingredients constituting major
offence and to convict him, some of the ingredients of the
major offence could be absent. Since the offence under
Sections 11(Ka)/30 of the Ain is a graver offence wherein
the charge as to killing of the wife has been framed along
with charge of demanding dowry than that of the case
under Section 302/34 where the charge of killing of any
person is usually be brought against accused, we are of
the view that the alternation of charge from 11(Ka) of the
Ain to Section 302 of the Penal Code will not cause
prejudice to the accused.
18. The interest of justice should be the ultimate goal in
the use of this power. In Thakur Shah V. Emperor AIR 1943
PC 192; the Privy Council said, “The alteration or
addition is always, of course, subject to the limitation that
=18=
no course should be taken by reason of which the accused
may be prejudiced either because he is not fully aware of
the charge made or is not given full opportunity of
meeting it and putting forward any defence open to him
on the charge finally preferred.” The purpose behind
providing Courts with the right to alter charges is to
avoid a miscarriage of justice.
19. Joint trial of different offences under different
enactments does not vitiate proceedings in the absence of
prejudice to the accused, particularly when the special
enactment authorizes the Court to try different offences
jointly where a charge is framed for one offence, but
offence committed is found to be some other than the one
charged, provided, the same facts can sustain a charge for
the latter offence, the accused can be convicted for such
an offence. Even if the facts proved are slightly different
from those alleged in the charge, a conviction based on
the facts proved would be legal.
20. The Appellate Court’s jurisdiction is co-extensive with
that of the trial Court in the matter of assessment,
appraisal and appreciation of the evidence and also to
determine the disputed issues.
21. The High Court Division has a wide appellate
jurisdiction over all Courts and Tribunals in Bangladesh
inasmuch as it may, in its discretion, from any judgment
and order of conviction and sentence passed by any
Court of Sessions and Tribunal. When the Tribunal is
empowered to try a case as Tribunal as well as Court of
Sessions, we are of the view that it could not be without
jurisdiction in view of the facts and circumstances of the
=19=
particular case to conform the judgment and order of
conviction under Section 11(Ka) converting or altering
charge to one under Section 302 of the Penal Code. The
technicalities must not be allowed to stand in the way of
importing justice. It is observed that depending on the
facts and circumstances of a particular case in the larger
interest of justice the Court may overlook a mere
irregularity or a trivial breach in the observance of any
procedural law for doing real and substantial justice to
the parties and the Court may pass any appropriate order
which will serve the interest of justice best. Procedure has
always been viewed as the handmaid of justice and not
meant to hamper the cause of justice or sanctify
miscarriage of justice. It is intended to achieve the ends of
justice and normally, not to shut the doors of justice for
the parties at the very threshold.
22. Accordingly, we find substances in the submission of
the learned Attorney General that the finding of this
Division that High Court Division is not authorized to
convert the conviction under Sections 11(Ka)/30 of the
Ain into one under Sections 302/34 of the Penal Code is
not correct view, hence such observation is liable to be
reviewed.
23. Our final conclusion is that the High Court Division as
an Appellate Court has the jurisdiction to convert the
conviction under Section 11(Ka)/30 of the Ain to one
under Sections 302/34 of the Penal Code as appeal is the
continuation of an original case. An Appellate Court has
the same power as that of the trial Court i.e. the Tribunal
and therefore, as an Appellate Court the High Court
=20=
Division in the present case is competent to convert the
conviction to secure the ends of justice. Undoubtedly such
an Act of the High Court Division shall in no way
prejudice the accused and State; otherwise order of
remand shall entail unnecessary time, money and energy
due to fruitless or useless prosecution and defence.
Similarly, the Tribunal which is created under the Ain
shall be deemed to be the Court of Sessions of original
jurisdiction and, is entitled to alter/amend the charge
framed under Section 11(Ka) of the Ain to one under
Section 302 of the Penal Code and to dispose of the case
finally in accordance with law if the accused is not
otherwise prejudiced.”
(underlines supplied by us)
The settled proposition of law as evident from the above is that
the High Court Division as an appellate Court is entitled to alter or
amend the charge framed against the accused under Section 11(Ka) of
Nari-O-Shishu Ain to one under Section 302 of the Penal Code and to
dispose of the case finally in accordance with law since the appellate
Court has the same power as that of the trial Court and the case is not
required to be sent to the Court of competent jurisdiction for holding
trial afresh. In the case in hand, although the High Court Division
upheld the conviction of the convict-appellant passed by the Tribunal
but altered the sentence under 11(Ka) of Nari-O-Shishu Ain to one
under Section 302 of the Penal Code, 1860 and in doing so the High
Court Division did not commit any illegality. Since the offence under
=21=
Section 11(Ka) of Nari-O-Shishu Ain wherein the charge as to killing
of the wife along with charge of demanding dowry framed against
the convict-appellant is a graver offence than that of the charge under
Section 302 of the Penal Code for committing murder of the victim
and, as such, we are of the view that the alteration of charge against
the convict-appellant from Section 11(Ka) of Nari-O-Shishu Ain to
Section 302 of the Penal Code will not cause prejudice to him.
In the result, the instant Criminal Appeal preferred by the
convict-appellant is dismissed without any order as to costs.
The conviction and sentence of life imprisonment awarded to
the appellant by the High Court Division is maintained. However,
the convict-appellant will get the benefit of Section 35A of the Code
of Criminal Procedure in calculation of his sentence and other
remissions as admissible under the Jail Code.
C.J.
J.
J.
J.
J.
The 03rd day of January, 2024
RRO; Total words-4,782
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.399 OF 2019
(From the judgment and decree dated 16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008)
Md. Dabir Uddin ……..….Appellant
-Versus-
Md. Moniruddin and others .…..….Respondents
For the appellant
: Mr. Sharif Uddin Chaklader, Advocate,
instructed by Mr. Md. Zahirul Islam,
Advocate-on-Record.
For respondents
No.1-2
: Mr. Md. Mozibur Rahman, Advocate-on-
Record.
For respondents
No.3-4
: Not represented.
Date of hearing and
judgment
: The 05th day of March, 2024
JUDGMENT
Obaidul Hassan,C.J. This Civil Appeal by leave granting order
dated 06.05.2019 in Civil Petition for Leave to Appeal No.2780 of 2015
is directed against the judgment and decree dated 16.07.2014 passed
by the High Court Division in Civil Revision No.1603 of 2008
discharging the Rule and thereby affirming the judgment and decree
dated 16.05.2007 passed by the learned Joint District Judge, 2nd Court,
Manikganj in Title Appeal No.26 of 2007 allowing the appeal while
setting aside the judgment and decree dated 10.01.2007 passed by the
Court of learned Senior Assistant Judge, Sadar Upazilla, Manikganj
in Title Suit No.130 of 2005 decreeing the suit.
=2=
The relevant facts necessary for the disposal of this Civil
Appeal are that the appellant herein as plaintiff instituted the Title
Suit No.130 of 2005 in the Court of Senior Assistant Judge, Sadar
Upazilla, Manikganj for specific performance of contract. The
averment of the plaint are, in a nutshell, that the land described in the
schedule to the plaint was acquired by the defendants through
purchase and heba-bil-ewaj from their father. The plaintiff being
separated from his family purchased 59 decimals land and got
possession therein. The plaintiff went abroad and from there he sent
remaining Tk.5,000.00(five thousand) and also money for registration
costs to the defendants. But the defendants committed breach of trust
and it was disclosed later that the deed was obtained in the name of
the plaintiff and the defendants. After returning from abroad the
plaintiff asked the defendants about the matter and they again took
Tk.2,00,000.00(two lac) for the purpose of kabala, but the defendants
did not purchase the land in the name of the plaintiff and
misappropriated the money. As a result, the plaintiff filed a criminal
case against the defendants. Before that the plaintiff also gave
Tk.1,00,000.00(one lac) to the defendant No.1 for his daughter’s
marriage ceremony and in this way the defendants misappropriated
a sum of Tk.3,00,000.00(three lac) from the plaintiff. The local Public
Prosecutor Advocate Azad Hossain tried to negotiate between the
plaintiff and the defendants and there was an ‘aposhnama’ on
14.10.2003. On the basis of that ‘aposhnama’ there was another sitting
=3=
on 18.10.2003 wherein it was agreed that the cases pending between
the parties would be withdrawn and thereafter, the defendants
would execute and register the kabala in favour of the plaintiff in
respect of the land described in schedule ‘Ka’ and ‘Kha’ to the plaint.
A deed was also written in respect of ‘Ka’ and ‘Kha’ schedule land in
absence of the defendant No.3. The Public Prosecutor took the
responsibility of taking signature of the defendant No.3 on the deed
who was absent at that time. As per terms and condition of the
‘aposhnama’ the plaintiff also executed a deed in favour of the
defendants in respect of the homestead measuring an area of 11
decimals and the aforesaid deeds along with ‘aposhnama’ was under
the custody of the Public Prosecutor. The defendants violated the
terms and conditions of ‘aposhnama’ and made a conspiracy to
deprive the plaintiff from getting the land in pursuant to ‘aposhnama’.
Thereafter, the plaintiff instituted the present suit for getting the
kabala registered through Court.
The defendants No.1-2–respondents No.1-2 contested the suit
by filing a written statement denying the averments made in the
plaint and contended, inter alia, that with the negotiation of Mr. Azad
Hossain, the Public Prosecutor and Advocate Anwar Hossain a
sitting was held on 14.10.2003 wherein an ‘aposhnama’ was executed.
In the said ‘aposhnama’ there was a condition between plaintiff and
the defendants that after fulfillment of the conditions they would
mutually withdraw their cases at their own responsibility and would
=4=
execute a deed in favor of the plaintiff in respect of ‘Ka’ schedule
land and in respect of 32 decimals land described in ‘Kha’ schedule.
The defendant No.3 was agreed to execute and register a deed in
favor of the plaintiff while the plaintiff was agreed to execute and
register a deed in respect of his 11 decimals of land. But the
defendant No.3 did not execute the ‘aposhnama’ by putting his
signature therein and the plaintiff also failed to comply with the
condition of the ‘aposhnama’ and he did not execute any deed in
respect of his 11 decimals land in favor of the defendants. The
plaintiff also did not withdraw the cases filed by him and thereby the
terms and conditions of the compromise had not been fulfilled. In
fact, there was no payment of consideration for the deed in respect of
any land and there was no valid contract for sale between the parties
and it was a mere talk of exchange, but the plaintiff filed the suit on
false averments which was afterthought and filed only with a view to
obtain unlawful gain by harassing the defendants. Hence, the suit is
liable to be dismissed.
The trial Court framed four issues during the trial of the suit.
The plaintiff and the defendants No.1-2 examined four witnesses
each. The documentary evidences adduced by the plaintiff had been
marked as Exhibits-1 series to 2 while those adduced by the
defendants No.1-2 had been marked as Exhibits-A series.
The trial Court on completion of the trial decreed the suit by
judgment and decree dated 10.01.2007. Being aggrieved by the
=5=
judgment of the trial Court the defendants No.1-2 preferred Title
Appeal No.26 of 2007 before the learned District Judge, Manikganj
which was eventually transferred to the learned Joint District Judge,
2nd Court, Manikganj for trial. Upon hearing the learned Joint District
Judge, 2nd Court, Manikganj vide judgment and decree dated
16.05.2007 allowed the appeal.
Challenging the judgment and decree dated 16.05.2007 passed
by the appellate Court below the plaintiff filed Civil Revision
No.1603 of 2008 before the High Court Division. Upon final hearing
the High Court Division was pleased to discharge the Rule vide
judgment and decree dated 16.07.2014.
Being disgruntled with the judgment and decree dated
16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008 the plaintiff as petitioner filed Civil Petition for
Leave to Appeal No.2780 of 2015 before this Division and hence the
instant appeal.
Mr. Sharif Uddin Chaklader, learned Counsel appearing on
behalf of the appellant taking us through the judgment and decree
dated 16.07.2014 passed by the High Court Division in Civil Revision
No.1603 of 2008, judgment and decree of the appellate Court below
and the trial Court as well as the other materials on record contends
that the High Court Division has committed illegality in totally
misconceiving the case of the appellant upon misreading and
misconstruing the evidence and materials on record and thereby
=6=
misdirected beyond the law and facts of the case in passing the
erroneous decision discharging the Rule which caused serious
miscarriage of justice and as such the impugned judgment and decree
is liable to be set aside. The learned Counsel for the appellant
contends next that P.Ws.3 & 4 categorically stated that possession of
the suit land was delivered to the plaintiff on the next day, but the
High Court Division failed to appreciate the evidence of record and
as such the impugned judgment is liable to be set aside. The learned
Counsel for the appellant argues next that the sale deed as well as the
compromise deed are in possession of the local elites including local
Public Prosecutor Azad Hossain Khan, who are biased with the
defendants, and despite the order of the learned Senior Assistant
Judge he did not produce the deeds and in such position, the plaintiff
has no option but to pray for getting the land by registration of kabala.
The learned Counsel for appellant submits further that the appellate
Court below as well as the High Court Division totally overlooked
the role of learned Public Prosecutor, Azad Hossain Khan and it is on
record that he admitted in a proceeding before the ADM that he is in
possession of the concerned deeds as such the appellate Court below
ought to have compelled him to produce the deeds including the
kabala to arrive at a definite finding over the dispute, in absence of
which the decision arrived at by the appellate Court below and
affirmed by the High Court Division is made totally on surmise. The
learned Counsel for the appellant argues next that the appellate
=7=
Court below as well as the High Court Division did not discuss and
assess each and every findings of the trial Court with reasonable
grounds which is required under the Code of Civil Procedure and as
such the appellate Court below as well as the High Court Division
committed error of law occasioning failure of justice. Therefore, the
impugned judgment and decree passed by the High Court Division is
liable to interfered with by this division.
In opposition, Mr. Mozibur Rahman, learned Advocate-on-
Record appearing on behalf of the respondents No.1&2 contends that
admittedly the plaintiff and the defendants No.1-3 are the full
brothers and there were series of criminal cases and counter cases
among them and hence the local Public Prosecutor Advocate Azad
Hossain Khan tried to negotiate between the plaintiff and the
defendants and there was an ‘aposhnama’ on 14.10.2003. On the basis
of that ‘aposhnama’ there was 2nd sitting on 18.10.2003 and there was a
talk in that sitting that the cases pending between the parties would
be withdrawn and thereafter, the defendants would execute and
register the kabala in favor of the plaintiff in respect of the land
described in the schedule ‘Ka’ and ‘Kha’ to the plaintiff. Accordingly,
a sale deed was written in respect of ‘Ka’ and ‘Kha’ schedule land in
absence of the defendant No.3. Learned Public Prosecutor took the
responsibility of taking signature of the absent defendant No.3 on the
deed. As per terms and conditions of the ‘aposhnama’ another sale
deed was also written and signed by the plaintiff in favor of the
=8=
defendants in respect of his homestead measuring an area of 11
decimals and the aforesaid two deeds along with the ‘aposhnama’
were under the custody of the learned Public Prosecutor.
Subsequently, both the parties failed to comply with the terms and
conditions of the ‘aposhnama’ and they did not withdraw any case
amicably and hence the learned Public Prosecutor, Advocate Azad
Hossain Khan did not proceed with the said ‘aposhnama’ and
consequently the aforesaid two written sale deeds were not
registered and as such the suit instituted by the plaintiff for getting
kabala registered through Court is quite absurd and not tenable in the
eye of law and as such the instant appeal is liable to be dismissed for
the ends of justice. The learned Advocate-on-Record argues next that
the suit of the plaintiff is for specific performance of contract which is
not maintainable since in view of the pleadings of the parties there is
no valid contract for sale between the parties and admittedly there
was no payment of consideration. As per provisions of Section 54 of
the Transfer of Property Act sale is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised. But in the instant case it is evident that under the ambit of
the said Section it is not at all a sale and it cannot be treated as sale
and this legal aspect was rightly considered by the learned Judge of
the appellate Court below as well as by the High Court Division and
as such the impugned judgment and decree is not liable to be
interfered with by this Court. The learned Counsel for the
=9=
respondents No.1&2 submits next that in the instant case ‘aposhnama’
which was executed between the parties was such a nature that non-
compliance of the condition of that ‘aposhnama’ will make the same
revocable and it is apparent from the evidence and admission of the
parties that the conditions of the said ‘aposhnama’ were not fulfilled
and accordingly it was impliedly revoked. Since as per section 21 of
the Specific Relief Act the contract which is in its nature revocable
cannot be specifically enforced and in view of the aforesaid aspects
the learned appellate Court below as well as the High Court Division
legally decided that the original suit is not maintainable and as such
the impugned judgment and decree is quite justified. The learned
Counsel for the respondents No.1&2 contends lastly that as per
provisions of Sections 12, 21 and 22 of the Specific Relief Act, the
original suit for specific performance of contract is barred. In reality,
there was no contract for sale between the parties and in view of the
aforesaid aspects, the appellate Court below as well as the High
Court Division legally decided that the suit is not maintainable and
there is no tangible evidence in favor of the plaintiff to prove the
specific performance of contract and there is no illegality or
irregularity and no misreading and non-reading of evidence and non-
consideration of material facts resulting in an error in the decision
occasioning failure of justice and as such the impugned judgment
and decree does not call for interference by this division.
=10=
We have perused the judgment and decree dated 16.07.2014
passed by the High Court Division in Civil Revision No.1603 of 2008.
We have also considered the submissions of the learned Counsel for
both sides and gone through the judgment and decree of the
appellate Court below and the trial Court, evidences as well as other
materials on record.
Admittedly, on 14.10.2003 an unregistered ‘aposhnama’ was
executed between the plaintiff and defendants. In the said
‘aposhnama’ there was a condition between plaintiff and the
defendants that after fulfillment of the conditions they would
mutually withdraw their cases at their own responsibility and the
defendants would execute a deed in favor of the plaintiff in respect of
‘Ka’ and ‘Kha’ schedule land while the plaintiff would execute a deed
in favor of the defendants in respect of homestead measuring 11
decimals. The main contention between both the parties is that
whether due to non-fulfillment of terms and conditions of said
‘aposhnama’ the plaintiff is entitled to get the decree of specific
performance of contract on the basis of said ‘aposhnama’.
The plaintiff claims that subsequent to ‘aposhnama’ the
defendants No.1-3 written two sale deeds in favour of the plaintiff on
18.10.2003, however, although the defendants No.1-2 put their
signatures in the deeds, the defendant No.3 did not put his signature
therein. The plaintiff filed the photocopies of the said deeds which
were marked as Exhibits-1 series. Now let us examine whether as per
=11=
the terms and conditions of ‘aposhnama’ dated 14.10.2003 the cases
pending between the parties were withdrawn or not.
P.W.1 stated in his cross-examination that-
It is evinced from the above that both the plaintiff and
defendants did not withdraw criminal cases filed against each other
and as such no compromise was made between the parties. Since the
terms and conditions described in the ‘aposhnama’ dated 14.10.2003
regarding the withdrawal of criminal cases had not been fulfilled the
said ‘aposhnama’ was impliedly revoked. In the premises made above,
the plaintiff cannot get relief on the strength of ‘aposhnama’ dated
14.10.2003.
It divulges from the record that referring the unregistered sale
deeds (Exhibits-1 series) the plaintiff claims that the defendants
executed those deeds in pursuant to ‘aposhnama’, but those deeds
were not registered by the defendants, therefore, the plaintiff prays
for specific performance of contract.
In this regard, it is pertinent to discuss Section 54 of the
Transfer of Property Act, 1882 which is stated below:
54. “Sale” is a transfer of ownership in exchange for
a price paid or promised or part-paid and part-
promised.
=12=
Such transfer, in the case of tangible immoveable
property or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
Delivery of tangible immoveable property takes
place when the seller places the buyer, or such
person as he directs, in possession of the property.
(underlines supplied by us)
Thus, a sale is a transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised. But in the case in
hand no pecuniary consideration was dealt with between the parties
and as such the transaction in question cannot be termed as sale.
Moreover, as it has already been found that due to non-compliance of
the terms and conditions of ‘aposhnama’ dated 14.10.2003 there is no
scope to claim right and title over the suit land by virtue of the
alleged unregistered sale deeds.
In view of the discussions made above as well as the legal
provisions as stated above, we hold that the plaintiff is not entitled to
get a decree of specific performance of contract, but the trial Court
without proper appraisal of the oral as well as documentary evidence
available on the record and the proposition of law decreed the suit.
The appellate Court below lawfully set aside the judgment and
decree of the trial Court and the High Court Division on proper
scrutiny of the record affirmed the judgment of the appellate Court
below. We do not find any deviation in the impugned judgment and
decree of the High Court Division.
=13=
In view of the reasons stated above and in the light of the above
discussions, it does not warrant interference with the impugned
judgment and decree dated 16.07.2014 passed by the High Court
Division in Civil Revision No.1603 of 2008. Therefore, we do not find
any merit in the submissions of the learned Counsel for the appellant
and as such the instant Civil Appeal is liable to be dismissed.
Consequently, the instant Civil Appeal is dismissed without
any order as to costs.
C.J.
J.
J.
J.
The 05th day of March, 2024
RRO; Total words- 3112
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IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 456 OF 2017
(Arising out of C.P. No. 895 of 2017)
Bangladesh Tailbahi Jahaj Malik
Samity, represented by its President
.... Appellant
-Versus-
Chairman, Bangladesh Inland Water
Transport Authority (BIWTA) and others
....Respondents
For the Appellant : Mr. Kamal-ul-Alam, Senior Advocate
with Ms. Shahanaj Akhter, Advocate
instructed by Mr . Zainul Abedin,
Advocate-on-Record
For Respondent No. 1 : Mr. A.M. Amin Uddin, Senior
Advocate with Mr. Md. Obaidu r
Rahman Mo stafa, Advocate, Ms.
Sabrina Zerin, Advocate and Mr.
Md. Abdul Quiyum, Ad vocate
instructed by Mr. Mohammad Abdul
Hai, Advocate-on-Record
Respondent Nos.2-5
Not represented
Date of Hearing : 18.10.2023 and 15.11.2023
Date of Judgment : 23.11.2023
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 22.08.2016, passed
by the High Court Division in Civil Revision No. 1575 of
2006 making the Rule absolute. 2
Facts, in short, are that the present appellant along
with respondent No.2, as plaintiffs instituted Title Suit
No. 199 of 2001 before the 1st Court of Assistant Judge,
Dhaka, praying for declaration that the application of
Conservancy and Pilotage Service Fees Rules , 1990 over
the C ostal Ships and Tankers of the plaintiffs
established under the Merchants Shipping Ordinance, 1983
is illegal and also for declaration that the letters
dated 17.06.2001 and 25.6.2001 and circular vide letter
No. M- 2/15/47(4) are illegal and unlawful.
The trial Court dismissed the suit. Against which
appeal was preferred and the same was allowed by setting
aside the judgment and decree of the trial Court.
Challenging the said decision the defendants filed Civil
Revision before the High Court Division and o btained
Rule. A Single Bench of the High Court Division made the
Rule absolute upon setting aside the judgment and decree
of the appellate Court and affirming those of the trial
Court. Hence , the plaintiff No. 1 preferred civil 3
petition for leave to appeal before this division and
obtained leave giving rise to this appeal.
Mr. Kamal -ul-Alam, the learned Senior Advocate
appearing for the appellant submits that the High
Division committed an error of law in passing the
impugned judgment and order holding tha t having not been
vested with any right to declare any law void the court
of appeal below erred in declaring the imposition of
conservancy fees under Section 3 of the
-
, ১৯৯০ (hereinafter referred to as Bi dhimala,
1990) as illegal.
Next h e submits that the conservancy fees are
leviable only on
as defined in Bidhimala, 1990
and payable by the
of
registered under the
provision o f the said Bidhimala, 1990 and as such the
demands made in the impugned notices for payment of
conservancy fees from the members of the plaintiffs’
samity(Association) whose tankers and coasting ships ply
in the river ways which are not
but are 4
coasting Ships as defi ned and whose “ownerships” are
registered under the provisions of Merchant Shipping
Ordinance, 1983. Without considering the aforesaid
provisions of law the High Court Division erred in law in
abruptly passing the impugned Judgment and order.
He further submi ts that the members of the
plaintiffs’ samity(Association) are the owners of
ships/tankers as defined in Section 2(47) and “coasting
ship” as defined in section 2(4) of the Merchant Shipping
Ordinance, 1983 which are not
as defined in
of Bidhimala, 1990 read with Section -2(e) and (f) of
the Inland shipping Ordinance, 1976 and the members of
plaintiffs’ samity(Association) are the
/owner of the
said vessels as defined in Section-2(26) and the same are
registered under Section 14 and 26 of the Merchant
Shipping O rdinance, 1983, consequently the High Court
Division was wrong in law in not holding that the said
tankers and coasting ships of the members of plaintiffs’
samity(Association) not being
as defined in
5
of Bidhimala, 1990 the conservancy fee is not payable
by the members of plaintiffs’ samity(Association).
On the other hand Mr. A.M. Amin Uddin, the learned
Senior Advocate appearing for the respondent No. 1 made
his submissions supporting th e impugned judgment and
order of the High Court Division.
We have heard the learned Advocates of both sides and
perused the impugned judgment and order of the High Court
Division together with the decisions of the courts below.
It is admitted that the ships or the vessels owned by
the members of the plaintiff s’ Association are mainly
ship and vessel in the coastal area but they have to
transport petroleum fuel and other goods within the
Inland River Way . And the Bangladesh Inland Water
Transport Authority (BIWTA) is authorized for imposition
fees upon the costal and Oil Tanker which are running or
transporting within the Inland Water Ways under the
provision of Bidhimala, 1990 which was enacted in
pursuant to Bangladesh Inland Water Transport Authority 6
Ordinance, 1958 . The relevant provisions of the said
Bidhimala are produced verbatim as under:-
“ , , ৪২৮- ই /৯০/
/ -২/৯০- Bangladesh Inland Water
Transport Authority Ordinance, 1958 (E.P. Ord. LXXV of
1958)
section 19 sub-section (3) [ section (2) clause
(VII)
(Ord. No. LXXII of
1976)
(self-propelled vessel)”
Pertinently, let us see the definition of Inland Ship
as envisaged in the Inland Shipping Ordinance(Ordinance
No.LXXII of 1976). Section 2(e) defines Inland Ship. It
enjoins the definition which is worded as under:
“2(e) “inland ship” means every description of vessel
ordinarily plying on inland waters and propelled wholly 7
or in part by steam, liquid fuel, electricity or any
other mechanical powers and includes a sailing boat, dumb
barge and other craft whic h is not so propelled but is
towed or pushed by a vessel so propelled.”
Combined reading of both the impugned Bidhimala 1990
and the Ordinance 1976 justify the imposition of
conservancy fees as aforesaid.
Now, let us further evaluate the entire case on the
appraisal of the imposition of the conservancy fees under
the Bidhimala 1990.
The learned Advocate for the appellant claims that
imposition any conservancy fees by Bidhimala, 1990 shall
be double jeopardy for the members of the ir association
because the y have to bear taxes for the Coastal
Authorities as well as Inland Authorities. But it reveals
that the coastal authorities and the Inland River
Authorities are different jurisdictions with different
types of services, therefore, as per Bidhimala, 1990 any
imposition cannot be declared illegal or without lawful
authority unless or until Bidhimala is declared illegal.
8
The appellate court below came to a conclusion that
any civil court can entertain any matter where
interpretation in respect of law to be declared illegal,
even the constitutional provision , within the frame work
of Order XXVIIA Rules 1 and 2 of the Code of Civil
Procedure which reads as follows:-
“R.1. In any suit in which it appears to the court
that any substantial question as to the interpretation of
constitutional law is involved, the court shall not
proceed to determine that question until after notice has
been given to the Attorney General for Bangladesh if the
question of law concerns the Government***.”
The findings of the appellate Co urt below banking on
Order XXVIIA Rules 1 and 2 as mentioned above leads to
absurdity, simply because the said law enjoins that where
any substantial question as to the interpretation of
constitutional law is involved, the C ourt shall not
proceed to determine that question until after notice has
been given to the Attorney General for Bangladesh. To our
utter surprise it reveals that the Appellate Court below
even did not act accordingly. The findings of the High
Court Division on that score is well founded. When the 9
lower appellate Court took notice of Order XXVIIA of the
Code of Civil Procedure, it could easily notify the
Attorney General of Bangladesh in terms of the said
provision of the Code of Civil Procedure.
To sum up, first of all, we endorse the vi ew of the
High Court Division that the imposition of fees in
question is not a double jeopardy. Rather it is
absolutely justified.
In the context of adjudicating such a case before
this Division where the crucial question of balancing
commercial interests and environmental stewardship
between parties as well as that of the river is
concerned, we grapple with the question of imposing
conservancy fees on sea -going oil tankers that traverse
inland waters and utilize rivers to access the open sea
via estuaries. The ship-owners, in their defense, contend
that they fall outside the category of vessels
exclusively navigating inland rivers. They further argue
that imposing such fees would amount to double jeopardy
and inflict undue hardship upon them. However, a cl oser 10
examination reveals compelling reasons for rationalizing
these fees.
In rationalizing the imposition of conservancy fees
on sea -going oil tankers navigating inland waters and
rivers, despite ship -owners' arguments of exemption and
double jeopardy, several points can be asserted. Firstly,
the definition of a river includes any watercourse
naturally flowing towards a sea, estuary, or lake. Sea -
going vessels utilizing these riverways for navigation
inherently fall within the purview of vessels using
inland waters. Thus, they are subject to relevant fees
aimed at maintaining the navigability and health of these
watercourses. Secondly, while ship -owners may contend
that such fees constitute double jeopardy, it must be
underscored that the purpose of conser vancy fees is
distinct from other maritime charges. These fees
specifically contribute to the upkeep and preservation of
inland waterways, which are crucial for maritime commerce
and environmental sustainability. Therefore, the
imposition of conservancy fe es is not duplicative but
rather serves a distinct regulatory purpose. Moreover, 11
the argument that sea -going vessels are not directly
benefiting from inland waterways neglects the
interconnectedness of maritime transportation networks.
Even if primarily bo und for the sea, these vessels rely
on riverways for access to ports and estuaries, thereby
benefiting from the infrastructure and maintenance funded
by conservancy fees. Lastly, acknowledging the
significant government expenditure required to maintain
river health and navigability underscores the necessity
of equitable contributions from all users, including sea -
going vessels. In conclusion, the imposition of
conservancy fees on sea -going oil tankers navigating
inland waters is justifiable both legally and
practically, ensuring the sustainable management of vital
maritime resources for the benefit of all stakeholders.
It is to be understood by all stakeholders that the
conservancy fees are not punitive measures but rather
investments in sustainable river management. Ship-owners,
as beneficiaries of efficient river navigation, play an
essential role in safeguarding these vital waterways. By
recognizing the interconnectedness of rivers, estuaries, 12
and the open sea, we can uphold both economic interests
and environmental well-being.
The case in hand is indeed of such an impact which as
we have discussed above manifestly maintained that the
High Court Division was absolutely justified in holding
that the Court of appeal below committed an error of law
by allowi ng the appeal and thereby declaring the
imposition of conservancy fees by section 3 of the
Bidhimala, 1990 illegal and hence cannot be gainsaid that
there is a denial of justice in any manner. The judgment
and order passed by the High Court Division is elaborate,
speaking and well composed. We are not inclined to
interfere with the same.
Accordingly, the appeal is dismissed without any
order as to costs.
J.
J.
J.
J.
J.
J.
The 23rd November,2023
/Nayeem Firoz, RRO & Ismail,B.O./*2085*
|
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH
APPELLATE DIVISION
PPRREESSEENNTT::
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.49 OF 2020
(From the judgme nt and order dated 20.07.2016 passed by
this Division in Civil Appeal No.107 of 2011).
Government of Bangladesh, represented by
the Secretary, Ministry of Law, Justice
and Parliamentary Affairs, Bangladesh
Secretariat, Dhaka and others.
:
...Appellants.
-Versus-
Abdur Rahman Bhuiyan and others. : ...Respondents.
For the Appellants.
: Mr. Mehedi Hasan Chowdhury,
Additional Attorney General with Mr.
Md. Mujibor Rahman, Assistant
Attorney General instructed by Mr.
Haridas Paul, Advocate-on-Record.
For the Respondents.
: Mr. M. Qumrul Hoque Siddique, Senior
Advocate instructed by M r. M d.
Zahirul Islam, Advocate-on-Record.
Date of Hearing. : The 28th November, 2023 and 07th February, 2024.
Date of Judgment. : The 07th February, 2024.
J U D G M E N T
Borhanuddin,J: This appeal by leave is directed against the
judgment and order dated 20.07.2016 passed by th is
Division in Civil Appeal No.107 of 2011 arising out of a
judgment and order dated 17.08.2009 passed by the High
Court Division in Writ Petition No.1773 of 2008 making
the Rule absolute with direction. 2
Facts, in brief, are that the writ-petitioners
joined service as Extra Mohorars in different Sub -
Registrar offices and thereafter they were promoted to
the post of TC Mohorars; Despite such promotion their pay
has been reduced at the lowest level in the scale; They
have already completed 15 to 20 years of service in the
registration department an d entitled to get higher pay
after promotion; If higher pay is not allowed, then their
previously fixed pay must be protected and allowed to be
drawn; Regarding the reduction of their scale they have
given a list in the writ petition showing how drastically
their pay scale has been reduced; Pay of an incumbent can
be reduced if he is found guilty of any offen ce after a
full fledged inquiry as a m easure of punishment but the
pay already drawn by them has been reduced at a lower
level though they have not committed any offence ; They
have been treated unjustly by arbitrary executive action;
In similar situation, other persons previously have been
allowed higher pay after promotion; There is thus
discrimination in the treatment of the writ -petitioners
who are standing on the same footing. 3
Their further case is that in the registration
department, the post of TC Mohorar and the Mohorar are in
the same scale with same status; On the other hand , the
TC Assistant and the Assistant are on the same footing
with same status; The writ -respondents have counted
previous service of the Mohorars and Assistants with all
future service benefits including pensionery benefits but
they deny same benefits to the TC Mohorars and TC
Assistants which is arbitrary and mala fide; Under the
Constitutional provisions the action of writ-respondents
is inequitable and discriminatory; The writ -petitioners
have been promoted from the feeder post for which they
are entitled to get benefits of their previous service in
the feeder post; The inaction and denial of the writ -
respondents to recognize the pay scale and status of the
writ-petitioners are i llegal, malafide, without backing
of law, inasmuch as, it is against all norms of fairness
and justice; The Government has promulgated many laws for
counting previous service of the personnel of development
projects, ad -hoc appointees, Mujibnagar employees etc.
and pursuant to the said provisions of laws, those 4
classes of employees are getting their benefit of
previous service record; The writ -petitioners who have
been working for a long time as TC Mohorars and TC
Assistants against substantive posts are entitled to get
similar benefits; Because of the inaction of the writ-
respondents the writ-petitioners should not suffer; Under
the provisions of the Service (Reorganization and
Condition) Act, 19 75, the writ -petitioners are entitled
to united grades and pay of scale, equal p ay and other
benefits of service.
Being aggrieved by and dissatisfied with the inaction
and failure of the writ-respondents to protect the pay of
the writ -petitioners in the present post s and counting
their previous service in the post of TC Mohorars and TC
Assistants, the writ -petitioners filed the writ petition
before the High Court Division and obtained a Rule Nisi.
The writ-respondent no.4 contested the Rule by filing
an affidavit -in-opposition, contending interalia, that
the writ-petitioners are not Government employees and are
not getting any salary from revenue budget and therefore,
they are not entitl ed to get any scale of pay; Their 5
claim is absolutely contradictory and getting salaries as
per their post s; The treatment of the wri t-petitioners
cannot be taken as ‘hostile discrimination and double
standard’ inasmuch as they are not Government servant and
no pick and choose policy has been adopted; Since the
writ-petitioners are not the Government servants, they
are not entitled to g et any benefit/privilege under the
circular dated 23.09.1996; In the case of Nurul Islam and
another vs. the Secretary, reported in 46 DLR (AD) 188 ,
this Court opined that the TC Mohorars are paid with
fixed pay from a special fund of the Inspector General of
Registration (IGR) and as per the said decision the writ -
petitioners are not Government servant and thus Rule 42
of the Bangladesh Service Rules, Part-1 is not applicable
to them; Since the post of TC Mohorars are not Government
post, they are not enti tled to claim benefits like the
Government servants.
Upon hearing the parties the High Court Division made
the Rule absolute with direction vide judgment and order
dated 17.08.2009. 6
Having aggrieved, the writ-respondents as petitioners
preferred Civil Peti tion for Leave to Appeal No. 88 of
2010. This Division by the order dated 03.01.2011 granted
leave in the said civil petition resulting in Civil
Appeal No.107 of 2011.
This Division upon hearing the appeal by the judgment
and order dated 20.07.2016 dismissed the appeal.
Feeling aggrieved, the writ -respondents as
petitioners preferred Civil Review Petition No.436 of
2019 before this Division and obtained leave granting
order on 23.01.2020 considering the following grounds:
“I. Because the High Court Division erred in law
in not finding that the writ petition in the
nature of mandamus itself was not
maintainable as there was no Government
order impugned in the writ petition claiming
to have reduced the pay and grade of the
writ-petitioners nor there appears any
representation to the Government ventilating
their alleged grievance of inaction before
filing of the writ petition and in absence
of those vital legal ingredients the
judgment passed by the High Court Division
cannot be enforced and this Court without
considering the above aspect of the case 7
dismissed the appeal as such the impugned
judgment and order may kindly be reviewed.
II. Because the High Court Division erred in law
in passing the impugned judgment by filing
to consider that the Registration Manual ,
2014 comes under the definition of law as
defined in Article 152 of the Constitution
of Bangladesh and is recognized as a law by
this Division in 46 DLR (AD) 188 (Para 161 )
and since pursuant to paragraph 307 of
Chapter XXVI of the Registration
Establishment of the Registration Manual
2014, the service of the writ -petitioner-
respondents as TC Mohorars are only to
collect Local Government Taxes and their pay
allowances are borne by the IGR (Inspection
General of Registration) fund, a fund
created from Loca l Government Tax to meet
the service charge of such tax collecting
staff and as such TC Mohorars do not belong
to the permanent clerical establishment of
the office as stipulated in Paragraph 305 of
the Registration Establishment of the
Registration Manual, 2014 and hence there is
no scope to consider the service of the
writ-petitioner-respondents are not under
the revenue budget, rather their service is
absolutely Non -Government service, and in
that view of the matter, the respondents TC
Mohorars are not entitled to benefits as the
Government servants and this Division
without considering the above aspect of the
law dismissed the appeal and as such the 8
impugned judgment and order may kindly be
reviewed.
III. Because the High Court Division erred in law
in passing the impugned judgment and order
in failing to consider that since the
respondents TC Mohorars are not Government
servants and therefore, TC Mohorars are not
Government servants and therefore, the Rule
42 of the Bangladesh Service Rules , Part-1
is no t applicable to them and therefore,
they are not entitled to get benefits of
Government servants and hence there is no
scope to direct the appellant -petitioner to
protect the pay of the writ -petitioner-
respondents and to count their previous
service in cou nting their pension benefits
from the date of their initial appointment
as TC Mohorars and this Division without
considering the above aspect of the law
dismissed the appeal and as such the
impugned judgment and order may kindly be
reviewed.
IV. Because the High Court Division erred in law
in not taking into its consideration the
circular dated 04.12.2000 which was issued
by the writ-petitioner no.4 in compliance
with the judgment passed by the this
Division in Civil Petition for Leave to
Appeal No.532 of 1 992, reported in 46 DLR
(AD) 188 ( Para 1 & 11), outlining the
procedure of promotion of TC Mohorars to TC
Assistants where it has been poin ted out
that the post of TC Mohorars and TC
Assistant cannot be termed as permanent and 9
this Division without considering the above
aspect of the case dismissed the appeal and
as such the impugned judgment and order may
kindly be reviewed.”
Consequently, instant civil appeal arose.
Mr. Mehedi Hasan Chowdhury , learned Additional
Attorney General appearing for the appellan ts summaries
his argument in line with the leave granting order.
On the other hand Mr. M. Qumrul Hoque Siddique ,
learned Advocate appearing for the respondents in support
of the impugned judgment and order dated 20.07.201 6
submits that the grounds of revie w are addressed
elaborately by this Division in the impugned judgment and
order and as such the appeal is liable to be dismissed.
Article 105 of the Constitution confers jurisdiction
on the Appellate Division to exercise power of review. It
reads as follows:
“105: The Appellate Division shall have
power, subject to the provisions of any Act
of Parliament and of any Rules ma de by that
Division to review any judgment pronounce d
or order made by it.” 10
Rules have been made known as the Supreme Court of
Bangladesh (Appellate Division) Rules, 1988. Order XXVI
of the said Rules, deals with review and it reads as
follows:
PART IV
ORDER XXVI
REVIEW
1. Subject to the law and the practice of
the Court, the Court may, either of its own
motion or on the application of a party to a
proceeding, review its judgment or order in
a Civil proceeding on grounds similar to
those mentioned in Order XLVII, rule 1 of
the Code of Civil Procedure and in a
Criminal proceeding on the ground of an
error apparent on the face of the record.
Rule 2 -9 of this order contains procedure
regarding filing of an application for
review.
Thus, a perusal of the same would show that the
jurisdiction of this Court, to entertain a review
petition in a civil matter, is patterned on the power of
the Court under Order XLVII Rule 1 of the Code of Civil
Procedure, 1908 (hereinafter referred to as the CPC, for
short). Order XLVII Rule 1 of the CPC, reads as follows:
REVIEW
1.(1) Any person considering himself aggrieved- 11
(a) by a decree or order from which an
appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no
appeal is allowed,
or
(c) by a decision on a reference from a
Court of Small Causes,
and who, from the discovery of new and
important matter or evidence wh ich, after
the exercise of due diligence, was not
within his knowledge or could not be
produced by him at the time when the decree
was passed or order made, or on account of
some mistake or error apparent on the face
of the record, or for any other suffici ent
reason, desires to obtain a review of the
decree passed or order made against him, may
apply for a review of judgment to the Court
which passed the decree or made the order.
(2) A party who is not appealing from a
decree or order may apply for a review of
judgment notwithstanding the pendency of an
appeal by some other party except where the
ground of such appeal is common to the
applicant and the appellant, or when, being
respondent, he can present to the Appellate
Court the case on which he applies fo r the
review.
It is settled law that the power of review cannot be
confused with appellate power which enables a superior
Court to correct all errors committed by a subordinate 12
Court. It is not rehearing of an original matter. A
repetition of old and overruled argument is not enough to
reopen concluded adjudication. The power of review can be
exercised with extreme care, caution and circumspection
and only in exceptional cases.
Main contention of the appellant s is that the TC
Mohorars are not Government s ervant and as such they
cannot claim any benefit like Government servant. Let us
see the findings of the impugned judgment and order dated
20.07.2016 passed by this Division in Civil Appeal No.107
of 2011 where this Division after elaborately discussing
Bengal Statue 1781, Bengal Regulation No.1793, Act of
1964, Act of 1865, Act of 1871, Act of 1877 and Act 16 of
1908, Act of 1964 and different provision of Registration
Manual, 2014 arrived at a finding:
“It is surprising to note here that from the
above, it is found Clauses (A) to (B) that the
provisions relating to the appointment,
disciplinary actions against the 3 rd and 4th
class employees are also proposed by the
inspecting officers. Last Clause (C) is
relevant which relates to the appointment ,
transfer, promotion, inquiry and their claim
of future fund and withdrawals to be made by 13
TC employees. This clause finds a reference
about the TC employees. However from the
above remark we notice that the appointment,
transfer, promotion and inquiry relating to
their service conditions are being regulated
by certain unwritten guidelines. As observed
above, though there is no Rule or Regulation
covering the field, this provision suggests
that this Department is being run following
conventions at least since 1908, in which
year, the Registration Act came into force.
Paragraph 291 Ka empowers the Inspectors to
report to the IGR regarding the
irregularities or mal administration by the
District Registrars relating to the
appointment, transfer or other related
matters of third and fourth class employees.
Paragraph 295 provides the guidelines given
to the Inspectors and District Registrars at
the time of inspection of the registration
offices.
One of the guidelines is to examine the
attendance of permanent Mohrars and
additional scribes/provisional copyists.
Possibly this is for the purpose of checking
as to whether the copyists and permanent
Mohrars are being paid in excess of the
rates etc. Nothing has been stipulated
regarding the TC Mohrars, TC Assistants,
Head Assist ants or Assistants in this
paragraph. Paragraph 305 provides that the
permanent clerical posts and Mohrars are
Government paid employees and their salaries
are compiled in form 2432. The bills for 14
clerks and Mohrars who are employed with the
registration officers are signed by the said
officers. So, from this paragraph it is seen
that the permanent clerks and Mohrars are
treated as Government employees.” (Sic)
This Division upon perusing documents annexed to the
writ petition arrived at a finding that TC Mohorars are
promoted from Extra Mohorars. The relevant findings runs
as under:
“On an evaluation of these provisions it
reveals that the appoi ntment, posting,
promotion of T C Mohrars cannot be made by
the Registrars whimsically. The appointments
have to be made in accordance with the
guidelines being given by the IGR from time
to time. Though TC Mohrars are holding
equivalent post of permanent Mohrars they
are not included in office clerk
establishment. However, TC Mohrars are
promoted from amongst the list of Extra
Mohrars. Learned Attorney General has
admitted this fact in course of hearing. We
find no logic behind the explanation given
in Paragraph 307 that the se TC Mohrars
should not be treated as office clerks of
Sub-Registrar or Registrar though they h old
the similar status of permanent Mohrars and
both permanent Mohrars and TC Mohrars are
promoted from the post of Extra Mohrar. On
perusal of the manual we find no provision
providing the procedure for appointment of
TC Mohrars directly.” (Sic) 15
This Div ision also discussed how the TC Mohorars
collecting Government revenue . Relevant portion of the
findings is quoted below:
“Though Paragraph 307 says that one Office
Assistant and two permanent Mohrars shall
compose of the office of the registrar, it
is not clear from the manual whether TC
Mohrars are utilized to perform the works of
office clerks in the registration office.
But taking consideration of the voluminous
works being transacted in every registration
offices, it cannot be denied that these TC
Mohrars are also performing the clerical
works similar to that of Office Assistants,
although their specific business is to
collect taxes. The registration department
is providing more than ten thousand crore
taka in the Government exchequer. Out of the
said a mount a portion i s used for the
payment of salaries to tax collectors of the
local Government department . These tax
collectors are employed in the City
Corporations and Pourashavas and therefore
they are employees of autonomous bodies, and
it is informed t hat they are enjoying the
new National Pay Scale of Serial No.14 and
15. There is clear statement in Paragraph
307 that the job of TC Mohrar is for
collecting Government revenue. It is
specifically stated that ‘¯’vbxq miKv‡ii Ki Av`vqKvwi
Kg©Pvix‡`i e¨q wgUvevi wbwg‡Ë '-----’ so, they are also
collecting revenue for the local Government
employees.” 16
(Sic)
When convention becomes law and how it happens in the
present case also discussed in the impugned judgment and
order. Relevant paragraphs are quoted below:
“The collection of revenue from the citizens
at the time of registration of deed s is a
tax and there cannot be any doubt in this
regard. Article 83 of the Constitution
provides that no tax shall be levied or
collected except by or under the authority
of an Act of Parliament. So the tax proposed
to be levied must be within the legislative
competence of the l egislature imposing the
tax. This article provides not only ‘levy’
but also collection of ‘tax’ which must be
under the authority of law.
If the executive authority is authorized to
collect a tax without sanction of law of
invalid law, the court is entitled to
interfere with such collection in view of
Article 83 but the TC Mohrars have been
collecting taxes for over fifty years and if
the statements in the Manual are taken to be
true, it is a convention being followed for
such a long time, this convention may be
taken as law.-------------------------------
-------------------------------------------
We are conscious that no tax or levy can be
collected without any authority of law even
then we are compelled to hold that without
baking of any law, such tax is being 17
realised for a long time and none has taken
any exception in the process of collecting
such tax . Now, if we declare such
realisation as one whi ch ultravires Article
83 of the Constitution, serious deadlock
will be created in the payment of salaries
to the tax collectors of the Local
Government and TC Mohrars. Therefore, we
declare such realisation as valid one on the
doctrine of necessity with a view to avoid
chaos and confusion. In this connection we
may profitably rely on the definition of
‘law’ defined in Article 152. ‘Law’ means
any Act, Ordinance, Order, Rule, Regulation,
bye-law, notification for other legal
instrument and any custom or usag e, having
the force of law in Bangladesh.
So, a custom or usage which is being
followed by a section of people for years
together has a force of law and may be
enforceable in a court of law. Similarly
when a ‘convention’ exists, and the
Government as well as tax payer is following
it as binding, then such convention would be
enforceable as law.”
(Sic)
Discussing all the aspects , this Division
categorically arrived at a finding that the TC Mohorars
are Government employees. Relevant finding is as under:
“Therefore, the collection of this fees/tax
from the taxpayers by the TC Mohrars though
not on the strength of an Act of Parliament, 18
it being a convention being followed over
fifty years by administrative orders o r
circulars has the force of law. If an
employee collects tax or revenue by an Act
of Parliament and if he is paid out of such
collection, under no stretch of imagination
such employee can be termed as Non -
Government employee, otherwise the amount of
tax collected by such employee will be
illegal as per Constitution. There is thus ,
I find no substance in the argument of the
learned Attorney General that the se TC
Mohrars are not Government employees.”
(Sic)
Discussing the facts and circumstances of the case in
hand and the case reported in 46 DLR (AD) 188, this
Division conclusively arrived at a finding that the
judgment reported in 46 DLR (AD) 188, has no relevancy in
determining the point of law involved in this matter,
relevant portion are reproduced hereinunder:
“Learned Attorney General has referr ed to
the case of Nurul Islam v. the Secretary,
Ministry of Law, 46 DLR (AD) 188. In that
case, the writ -petitioners challenged the
action of the Government which sanctioned
the circular of the IGR to fill up 475 posts
of permanent Mohrars in the different
offices of Sub -Registrar from among the
posts of Extra Mohrars. The writ petition
was filed on behalf of the TC Mohrars 19
organization namely TC Karmac hari Samity.
The High Court Div ision discharged the Rule
against which the Samity moved this Court.
This Court noticed that the scale of Mohrars
of and TC Mohrars being same ‘the
petitioners are not affected by the impugned
order of the Government. ’ This judgment has
not relevance in determining the point of
law involved in this matter.”
(Sic)
From the leave granting order based on which present
appeals arose, it is clear that the appellants in other
way round challenged the point of law which ha s been
negatived by this Division in the impugned judgment and
order.
It is to be mentioned here that the respondents-writ-
petitioners invoked writ jurisdiction under Article 102
of the Constitution to protect their rights as Government
employees and against hostile and discriminatory action
of the appellant-writ respondents as such writ petition
is very much maintainable.
In the case of Sow Chandra Kante and another vs.
Sheikh Habib, reported in (1975) 1 SCC 674, the Indian
Supreme Court held: 20
“A review of a judgment is a serious step
and reluctant resort to it is proper only
where a glaring omission or patent mistake
or like grave error has crept in earlier by
judicial fallibility. A mere repetition,
through different counsel, of old and
overruled arguments, a second trip over
ineffectually covered ground or minor
mistakes of inconsequential import are
obviously insufficient.”
It is well settled that a party is not entitled to seek
a review of a judgment delivered by this Division merely for
the purpose of a rehearing and a fresh decision of the case.
The normal principle is that a judgment pronounced b y this
Division is final, and departure from that principle is
justified only when circumstances of a substantial and
compelling character make it necessary to do so. (Sajjan
Singh vs. State of Rajasthan, reported in AIR 1965 SC 845.)
Accordingly, the civil appeal is dismissed.
However, no order as to costs.
J.
J.
J.
J.
J.
The 07th February, 2024.
Jamal/B.R./Words*-----*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Obaidul Hassan
-Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.155 OF 2015.
(From the judgment and order dated 09.02.2014 and
10.02.2014 passed by the High Court Division in Writ
Petition No.4715 of 2013).
Deputy General Manager , Janata Bank
Limited, Foreign Exchange Corporate
Branch, Regional Office, Zone -A, CDA
Annex Building, Chittagong.
: .....Appellant.
-Versus-
Sampriti Chakma, Proprietor of M/S
Sampriti Enterprise, represented by its
Constituted Attorney Abdullah -Al Mamun
and others.
: ....Respondents.
For the Appellant. : Mr. S.M. Atikur Rahman, Advocate
instructed by Mrs. Nahid Sultana,
Advocate-on-Record.
For Respondent No.1. : Mr. Shamim Khaled Ahmed , Senior
Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For Respondent Nos.2-11. : Not represented.
Date of Hearing. : The 16th & 17th January, 2024.
Date of Judgment. : The 17th January, 2024.
J U D G M E N T
Borhanuddin,J: This civil appeal by leave is directed
against the judgment and order dated 09.02.2014 and
10.02.2014 passed by the High Court Division in Writ
Petition No. 4715 of 2013 making the Rule absolute. 2
Facts r elevant are that respondent no. 1 herein as
petitioner preferred the writ petition invoking Article
102 of the Constitution before the High Court Division
praying for a declaration that charging commission on
bank guarantee against 100 % cash margin in violation of
Circular Nos.1750 and 3797 dated 23.05.1992 and
02.07.2005 respectively is illegal and without lawful
authority and also seeking direction upon the writ -
respondent no.11 , Branch Manager, Janata Bank L imited,
Foreign Exchange Division, Chittagong, to stop charging
commission on bank guarantee with 100 % cash margin,
contending interalia, that the writ -petitioner Sampriti
Chakma, an indigenous hillman from the Hill District -
Khagrachari, participated in th e tender floated by the
Director of Food for supply boiled and non -boiled rice
and being the lowest bidder obtained the work order;
After supplying the rice in phases he submitted the bill
against each consignment of supply; Being indigenous
hillman, he wa s certified to get deduction of advance
income tax but the Director of Food did not deduct; Then
the writ -petitioner approached the National Board of
Revenue (hereinafter referred to as ‘the NBR’) which 3
allowed deduction under Rule 16 of the Income Tax Rul es,
1984 but subsequently, the NBR vide letter dated
29.12.1994 stated that although the indigenous hillman is
exempted f rom payment of advance income tax but the
business enterprise of the writ -petitioner was not a n
indigenous entity and as such the exemption under Rule 16
of the Income Tax Rules, 1984 is not applicable; Feeling
aggrieved by the said letter , the writ -petitioner
preferred two Writ Petition being Nos.207 of 1995 and 809
of 1995 and obtained Rule Nisi separately; In Writ
Petition No.207 of 1995 the High Court Division passed an
ad-interim order directing the writ-petitioner to furnish
bank guarantee against the amount of advance income tax;
Pursuant to said ad-interim order, the writ-petitioner
deposited FDRs and made l ien of those FDRs infavo ur of
the writ-respondent no.11 and thereby furnished as many
as 25(twenty five) bank guarantees issued by the writ-
respondent no.10 , Janata Bank Limited, Chittagong ,
infavour of the writ -respondent no.4, Commissioner of
Taxes, Taxes Zone-3, Agrabad, Chittagong and all the bank
guarantees are lying with the writ-respondent no.4. 4
Upon hearing the parties, the High Court Division
discharged those Rules.
Having aggrieved, the writ -petitioner preferred two
unsuccessful Civil Petition for Leave to Appeal being
Nos.1445 of 1998 and 1446 of 1998 in this Division.
After final assessment done by the concerned Deputy
Commissioner of Taxes ( hereinafter referred to as ‘the
DCT’) the writ-petitioner paid all the taxes and obtained
‘Tax Liability Certificate’ up to the assessment year
2000-2001 from the DCT concerned; Despite payment of the
income tax as per assessment order made by the DCT
concerned, the Director of Food in an attempt to collect
advance income tax asked the Janata Bank Limited to allow
encashment of the b ank guarantees infavour of the Food
Department; Challenging the said attempt, the writ -
petitioner filed Writ Petition No.3429 of 2013 for
releasing the bank guarantees; The writ-petitioner filed
instant Writ Petition No.4715 of 2013 for a declaration
that the charging commission on bank guarantee for which
FDRs are deposited and made lien infavour of the writ -
respondent no.11, are tentamounts to 100 % cash margin 5
against the bank guarantee s and vide Circular No.1750
dated 23.05.1992, the service charge is Tk .200/- only as
the bank guarantees are secured by 100% cash margin and
there is no other condition to charge commission on such
bank guarantee s; But the writ -respondent no.11 claimed
commission at the rate of 0.50 % on the entire amount of
the bank guarante e in violation of said circular which
compelled the writ-petitioner to serve demand justice
notice upon the writ -respondents but without any
response; Finding no other efficacious remedy, the writ-
petitioner preferred instant writ petiti on for a
declaration that charging commission at the rate of 0.50%
on the entire amount of bank guarantee s is illegal and
without lawful authority.
Upon hearing the writ-petitioner, a Division Bench of
the High Court Division issued a Rule Nisi upon the writ-
respondents to show cause.
Writ-respondent nos.1 and 2 contested the Rule by
filing an affidavit -in-opposition, contending inter alia,
that the Taxes Department claimed that the writ -
petitioner’s business enterprise not being indigenous 6
hillman entity, the exemption under Rule 16 of the Income
Tax Rules, 1984 is not applicable to the enterprise owned
by the writ -petitioner; The writ -petitioner being lowest
bidder obtained work order for supplying boiled and non-
boiled rice to the Director of Food and accordingly,
supplied the rice in phases and submitted bill against
each consignment of supply; The writ -petitioner tried to
avoid deduction of advance income tax under Section 52 of
the Income Tax Ordinance, 1984 read with Rule 16 of the
Income Tax Rules, 1984 and approached t he NBR for
exemption of advance income tax which although
erroneously exempted earlier but later on the NBR
cancelled the said order; The writ -petitioner submitted
income tax return under normal procedure for the
assessment year 1995 -1996 and 1996 -1997 disc losing his
business income and the Assessing Officer assessed total
income of the writ -petitioner on the basis of the return
submitted and the writ -petitioner paid the tax liability
accordingly upon which the taxes department issued
clearance certificate f or the assessment years 1995 -1996
up to 2000 -2001; The Director of Food passed the order
for forfeiting the deposited bank guarantees and 7
directing the bank concerned to encash the same for
collecting advance income tax justly and legally.
The writ -respondent no. 10, Janata Bank Limited ,
submitted affidavit-in-opposition stating that the writ
petitioner and the guarantors are the clients of the
Janata Bank ; The writ -petitioner imported rice taking
help from Janata Bank under the quota of Chittagong Hill
Trucks; The customs authority and the food department
claimed 3 % Advance Income Tax (AIT) at the time of
releasing the imported goods; The writ-petitioner earlier
filed Writ Petition Nos. 207 of 1995 and 809 of 1995
praying for exemption from the imposition of advance
income tax; The High C ourt Division directed the writ -
petitioner to furnish bank guarantees instead of cash to
cover the amount of advance income tax ; T he writ -
petitioner was unable to provide any cash margin or co -
lateral security and only deposited FDR’s infavour of the
writ-respondent no.10 and made lien of those FDR’s to the
bank; Those FDR’s since issued from the respondent no.10
bank, the writ -petitioner has been receiving interest
from those FDRs; The bank has adjusted their commission
from the interest of the FDR ’s to be paid to the writ - 8
petitioner; The rate of commission of the bank guarantee
is quarterly 0.50% and respondent no.10, bank deducted
the same pursuant to the Circular No.3797 and the terms
and conditions as stipulated in the san ction letter,
where the rate of commission is fixed ; The writ -
petitioner is lawfully bound to pay such commission as
the writ -petitioner accepted the rate of commission at
the time of furnishing bank guarantees; Therefore, the
bank is entitle to get commis sion on the bank guarantee s
pursuant to the circular and sanction letter and the Rule
is liable to be discharged.
After contested hearing, a Division Bench of the High
Court Division made the Rule absolute by the impugned
judgment and order.
Having aggriev ed, the writ -respondent no.10 as
petitioner preferred civil petition for leave to appeal
before this Division invoking Article 103 of the
Constitution and obtained leave granting order.
Consequently, instant civil appeal arose.
Mr. S. M. Atikur Rahman, le arned Advocate appearing
for the appellant submits that the High Court Division 9
erred in law in not holding that the bank has realized
the commission of the bank guarantee at the rate of 0.50%
pursuant to the Circular No.3797 as well as the terms and
conditions as stipulated in the sanction letter and as
such the findings of the High Court Division regarding
deduction of commission on the FDR’s is liable to be set -
aside. He further submits that the Circular No.1750 dated
23.05.1992 re -affirming the Circular No.1667 dated
04.12.1990 categorically provided fixed commission of
Tk.200/- when the bank guarantee is secured by 100 % cash
margin and in all other cases deduction of commission at
the rate of 0.50 % and as such the impugned judgment and
order regarding imposition of commission is liable to be
set-aside.
On the other hand, Mr. Shamim Khaled Ahmed, learned
advocate appearing for the respondent no. 1 in support of
the impugned judgment and order submits that pursuant to
the ad-interim order passed in Writ Pet ition No.207 of
1995 the writ-petitioner deposited FDR’s and made lien of
those FDR’s as security for the purpose of obtaining bank
guarantee and those FDR ’s are equivalent to cash margin
inasmuch as in default of payment for the secured amount, 10
the bank can encash the said FDR’s at any time. He prays
to dismiss the appeal.
Heard learned Advocate for the respective parties.
Perused the impugned judgment and order alongwith
papers/documents contained in the paper book.
From the record it transpires that as p er the ad -
interim order passed by the High Court Di vision in the
writ Petition No. 207 of 1995, the writ petitioner
deposited FDR’s and made lien of those FDR ’s infavour of
the Janata bank as security o f bank gu arantees and the
Janata bank after complying n ecessary formalities issued
sanction letter infavour of writ petitioner for providing
bank guarantees vide letter dated 15.07.1995, which is as
under:
RbZv e¨vsK
AvÂwjK Kvh©vjq, ‡Rvb-G
PUªMÖvg
m~Ît bs--------337/16/95 ZvwiLt 15/07/95Bs
e¨ve¯’vcK,
RbZv e¨vsK,
ˆe‡`wkK wewbgq kvLv,
PUªMÖvg|
welqt- †gmvm© m¤úªxwZ G›Uvi cÖvBR Gi c‡ÿ cwiPvjK (msMÖn) Lv`¨ Awa`ßi, XvKv Gi
AbyK~‡j 1,56,12,500/ - (GK †KvwU Qvàvbœ jÿ evi nvRvi cvuPkZ) UvKvi e¨vsK M ¨vivw›U
Bmy¨i NU‡bvËi Aby‡gv`b cÖ`vb cÖm‡½|
Dc‡iv³ wel‡q Avcbv‡`i 26 -6-95Bs Zvwi‡Li AvR‡PŠ/‰ewe/wewR -23/95 bs c‡Îi Av‡e`b
Ges mycvwi‡ki ‡cÖwÿ‡Z †gmvm© m¤úªxwZ G›Uvi cÖvBR Gi c‡ÿ cwiPvjK (msMÖn) Lv`¨
Awa`ßi, XvKv Gi AbyK~‡j wb¤œwjwLZ kZ© †gvZv‡eK D‡jøwLZ 1,56,12,500/- (GK †KvwU
Qvàvbœ jÿ evi nvRvi cvuPkZ) UvKvi M¨vivw›U ----- Bmy¨i NUv‡bvËi Aby‡gv`b cÖ`vb Kiv
nBjt- 11
1| g‡°‡ji bvg t- †gmvm© m¤úªxwZ G›Uvi cÖvBR
2| wewbwdwmqvixi bvg t- cwiPvjK (msMÖn) Lv`¨ Awa`ßi, XvKv
3| M¨vivw›Ui cÖK…wZ t- e¨vsK M¨vivw›U
4| M¨viw›Ui g~j¨ t- 1, 56, 12, 500/-(GK †KvwU Qvcvbœ jÿ evi nvRvi cvuPkZ) UvKv
5| M¨vivw›Ui †gqv` t- Dchy³
6| Kwgkb t- ‰ÎgvwmK 0.50% nv‡i
7| gvwR©b t- 100% (¯’vqx AvgvbZ AvKv‡i)
8| we‡kl kZ© t- mgy`q my`mn ¯’vqx AvgvbZwU e¨vs‡Ki wbKU wj‡qb _vwK‡e|
Avcbvi wek^¯Í
¯^vÿi A¯úó
(gvneyeyj Avjg)
On perusal of the referred sanction letter it appears
that the Janata bank issued said letter infavour of the
business enterprise of the writ petitioner wherein it was
mentioned that the comm ission of the bank guarantee is
quarterly 0.50% when secured by 100% margin.
The sanction letter dated 15.07.1995 was issu ed
pursuant to the Circular No. 1750 dated 23.05.1992. For
proper appraisal, said circular is reproduced below:
RbZv e¨vsK
cÖavb Kvhv©jq
110, gwZwSj evwbwR¨K GjvKv
XvKv|
240027-30
‡dvb ---------------
240042-45
MÖvg ÔRbZv e¨vsKÕ
wc I e· bs-468
Z_¨ weÁwß bs-1750 ‡Rbv‡ij e¨vswKs wWwfkb
mKj Dc-gnve¨e¯’vcK/mnKvix gnve¨e¯’vcK
wefvMxq Kvhv©jq/Gwiqv Awdm/AvÂwjK Kvhv©jq/
K‡cv©‡iU kvLvmg~n/¯’vbxq Kvhv©jq,
mKj kvLv e¨e¯’vcK,
RbZv e¨vsK,
evsjv‡`k|
ZvwiL: 09-02-99 evs
23-05-92 Bs
welq: Af¨šÍixY †jb‡`‡bi †ÿ‡Î e¨vsK PvR© I Kwgk‡bi nvi cybt wbav©ib|
g‡nv`q,
Dc‡iv³ we l‡q 04/12/90 Bs Zvwi‡L 1667 b¤^i Z_¨ weÁwßi cÖwZ
mK‡ji `„wó AvKl©Y Kiv hvB‡Z‡Q| 12
evsjv‡`k e¨vs‡Ki 12-03-90Bs Zvwi‡Li 3 b¤^i wewmwW mvKz©jv‡ii wb‡`©k
†gvZv‡eK KZ…©c‡ÿi Aby‡gv`bµ‡g e¨vsKmg~‡ni byZb cwiewZ©Z nv‡ii ZvwjKv
GZrm‡½ mshy³ Kiv nBj| Bnv AbwZwej‡¤^ Kv h©Kix nB‡e| cÖm½Z D‡jøL¨ †h,
GKB ai‡bi †mevi Rb¨ MÖvnK‡`i wbKU nB‡Z GKB nv‡i PvR© Av`vq Kwi‡Z nB‡e
Ges †Kvb cÖKvi ˆelg¨ Kiv Pwj‡e bv| byZb cÖewZ©Z PvR©mg~‡ni ZvwjKv †bvwUk
†evW© wKsev kvLvi ¸iæZ¡c~Y© ¯’v‡b ¯’vcbc~e©K h_vh_ cÖPv‡ii e¨e¯’v Kwi‡Z nB‡e|
AbyMÖnc~e©K cÖvwß ¯^xKvi Kwi‡eb|
Avcbvi wek^¯Í
(‡gvt e`iæ‡ÏvRv)
Dc-gnve¨e¯’vcK |
(iwdKzj Kwig †PŠayix)
gnve¨e¯’vcK |
Abywjwc:
mKj Dc-gnve¨e¯’vcK,
mKj mnKvix gnve¨e¯’vcK,
mKj wefvMxq/kvLv cÖavb, cÖavb Kvhv©jq,
mKj gnve¨e¯’vc‡Ki e¨w³MZ mnKvixe„›`,
Dc-e¨e¯’vcbv cwiPvjK mv‡n‡ei GKvšÍ mwPe,
e¨e¯’vcbv cwiPvjK mv‡n‡ei GKvšÍ mwPe|
Again, the relevant portion of the chart attached
with the Circular No. 1750 dated 23.05.1992 which dealt
with the rate of commission of the bank guarantee runs as
follows:
MªvnK‡K †`Iqv wewfbœ †mevi Rb¨ e¨vsK KZ©…K Av`vq‡hvM¨ PvR© mg~n
µwgK
bs
Kv‡Ri
aiY
Av`vq‡hvM¨ PvR© Gi
cªK„wZ
bZyb cwiewZ©Z nvi/ Av`vq‡hvM¨
nvi
8
M¨vivw›U
(Af¨šÍixb)
Kwgkb
cªwZ wZb gvm A_ev Dnvi
fMœvs‡ki Rb¨ $ 0.75% nv‡i|
me©wbgœ $ 200/-, 100%
M¨vivw›U gvwR©b cª`vb Kwi‡j
ïaygvÎ mvwf©m PvR© $ 200/-
Av`vq‡hvM¨|
From th e plain reading of Circular No. 1750 dated
23.05.1992 alongwith the chart attached with said
circular it appears that when bank guarantee issued by
the concerned bank, the commission of said bank guarantee
shall be 0.75% of the guaranteed amount if the security
of said guarantee is other than cash margin and in case 13
of 100% cash margin the commission of said guarantee is
Tk.200/- as service charge.
Now the question which requires to be addressed is
that whether those FDRs deposited by the writ petitioner
infavour of the Janat a Bank as a security of bank
guarantee be treated as 100% cash margin or not.
Bank guarantee means a comfort, which is being give n
by issuing bank, to a party (b eneficiary in whose favour
the guarantee is issued) of losses or damages if the
client (on whose behalf the guarantee is being used)
fails to complete or comfort to the terms of agreement.
By issuing a bank guarantee, the issuing bank is assuring
payment of the certain amount of money (as specified in
the bank guarantee) to the beneficiary in case of non -
performance of a certain contract according to the terms
and conditions contained in the same. Issuance of bank
guarantee is a secured transaction as the client needs to
mortgage the properties or cash in the form of FDR for
issuing of same. The bank will not give guarantee without
securing itself. Again, when the borrower provides equal
amount of bank guarantee in the form of fixed 14
deposit/call deposit, i t is known as 1 00% cash margin
since the fixed deposit can be closed immediately and the
default if any can be set right without any delay and the
bank need not provide any f und based loan for this
purpose and for this characteristics the FDR must be
treated as equivalent to 100% cash margin.
(Emphasis supplied by us.)
It appears from the record that the entire twenty
five bank guarantees have been secured by the lien of
those FDRs. Though Circular No.1750 dated 23.05.1992,
which re-affirmed the Circular No. 1667 dated 04. 12.1990,
stated that Janata Bank can issue a bank guarantee on the
basis of commission @ cªwZ wZbgvm A_ev Dnvi fMœvs‡ki Rb¨ $ 0.75% nv‡i| me©wbgœ $
200/-, 100% M¨vivw›U gvwR©b cª`vb Kwi‡j ïaygvÎ mvwf©m PvR© $ 200/- Av`vq‡hvM¨ but the rate
of commission was reduced at 0.50% as incorporated in the
sanction letter. In the instant case, since entire twenty
five bank guarantees have been secured by the FDRs as
such the bank guarantees are secured by 100% cash margin.
Again, since the bank guarantee s are secured by the lien
of those FDRs which can be encashed at any time as such
the FDRs are equivalent to cash margin. So, the Janata
bank is entitled to get Tk.200/- as service charge as per 15
the chart attached with the Circular No. 1750 dated
23.05.1992.
From the facts and circumstances of the case and the
discussions made above, we are of the view that the
letter is sued by the writ respondent no. 10 claiming
deduction of commission @ 0.50% on the entire secured
amount cannot be treated as lawful deduction as such the
judgment and order s dated 09.02.2014 and 10.02.2014
passed by the High Cour t Division in Writ Petition
No.4715 of 2013 do not calls for any interference by this
Division.
In the result, the civil appeal is dismissed.
The judgment and order passed by the High Court
Division is maintained.
However, no order as to costs.
C.J.
J.
J.
J.
J.
The 17th January, 2024
Jamal/B.R./Words-*2795*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS.153 -154 OF 2018 WITH CIVIL PETITION FOR
LEAVE TO APPEAL NOS. 3939 OF 2017, 3283 OF 2017, 3538 OF
2018, 2586 OF 2018, 1414 OF 2018, 4229 OF 2018, 4230 OF 2018,
4675 OF 2018, 1704 OF 2019, 1705 OF 2019 AND 1706 OF 2019.
(From the judgment and order s dated 12.11.2017, 30.03.2017,
03.07.2017, 18.07.2017, 04. 01.2018, 17.10.2017, 27.05.2018,
13.05.2018 and 22.01.2019 passed by the High Court Division
in Writ Petition No s.10033 of 2017, 10746 of 2016, 1734 of
2017, 7760 of 2017, 7276 of 2017, 8093 of 2017, 10926 of
2016, 12883 of 2016, 3991 of 2018, 12480 of 201 6, 9762 of
2016 and 15917 of 2017 respectively).
Government of the People’s Republic
of Bangladesh, represented by the
Secretary, Ministry of Education,
Bangladesh Secretariat Building,
Ramna, Dhaka and another.
: ...Appellants.
(In C.A. No.153 of 2018)
Md. Alauddin : ...Appellant.
(In C.A. No.154 of 2018)
Government of the People’s Republic
of Bangladesh, represented by the
Secretary, Ministry of Education,
Bangladesh Secretariat Building,
Ramna, Dhaka and others.
: ...petitioners.
(In C. P. Nos.3939 of 2017,
3283 of 2017, 3538 of 2018,
2586 of 2018, 1414 of 2018,
4229 of 2018, 4230 of 2018,
4675 of 2018, 1704 of 2019,
1705 of 2019 and 1706 of 2019)
-Versus-
Md. Abdul Monnaf and others. : ...Respondents.
(In C.A. Nos.153-154 of 2018)
Kaunia College, represented by Md.
Shaheen Sarker , Member of the
Governing Body of Kaunia College,
Kawnia, Rangpur and another.
: ...Respondents.
(In C.P. No.3939 of 2017)
Md. Toib Ali and another. : ...Respondents.
(In C.P. No.3283 of 2017)
Md. Monu Miah, Assistant Professor,
Political Science and others.
: ...Respondents.
(In C.P. No.3538 of 2018)
Md. Shams Uddin and others. : ...Respondents.
(In C.P. No.2586 of 2018) 2
Md. Habibur Rahman and another. : ...Respondents.
(In C.P. No.1414 of 2018)
Lashkerpur Degree Mohabidyaniketon,
represented by its Principal A.N.M.
Monirul Islam and another.
: ...Respondents.
(In C.P. No.4229 of 2018)
Md. Nojer Ali and others. : ...Respondents.
(In C.P. No.4230 of 2018)
Md. Tazul Islam and others. : ...Respondents.
(In C.P. No.4675 of 2018)
Chowhali S.B.M. College, represented
by its Principal (in Charge) Mohammad
Monirul Bari Bablu and another.
: ...Respondents.
(In C.P. No.1704 of 2019)
Charjabbar Degree College, represented
by Oli Uddin Ahmed being dead his heirs
1(a) Saydul Haque Bhuiyan Donner and
Founder Member, Charjabbar Subornochar,
Noyakhali and others.
: ...Respondents.
(In C.P. No.1705 of 2019)
Sheikh Shahidul Alam. : ...Respondent.
(In C.P. No.1706 of 2019)
For the Appellants/Petitioners.
(In C.A. No.153 of 2018)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney
General instructed by Ms. Sufia
Khatun, Advocate-on-Record.
For the Appellant.
(In C.A. No.154 of 2018)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney General
instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record.
For the Petitioners.
(In C.P. Nos.3939 of 2017, 3283
of 2017, 3538 of 2018, 2586 of
2018, 1414 of 2018, 4229 of
2018, 4230 of 2018, 4675 of 2018
1704-1706 of 2019)
: Mr. Sk. Md. Morshed, Additional
Attorney General with Mr.
Samarendra Nath Biswas, Deputy
Attorney General, Mr. Mohammad
Saiful Alam, Assistant Attorney
General and Mr. Sayem Mohammad
Murad, Assistant Attorney General
instructed by Mr. Haridas Paul,
Advocate-on-Record, Ms. Sufia
Khatun, Advocate -on-Record and Ms.
Mahmuda Begum, Advocate-on-Record. 3
For Respondent No.1.
(In C.A. No.153 of 2018)
: Mr. Probir Neogi, Senior
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.10.
(In C.A. No.153 of 2018)
: Mr. Zainul Abedin, Advocate -on-
Record.
For Respondent Nos.2-9.
(In C.A. No.153 of 2018)
: Not represented.
For Respondent No.1.
(In C.A. No.154 of 2018)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent Nos.2-11.
(In C.A. No.154 of 2018)
: Mr. Samarendra Nath Biswas,
Deputy Attorney General
instructed by Ms. Sufia Khatun,
Advocate-on-Record.
For Respondent No.1.
(In C.P. No.3939 of 2017)
: Mr. S. M. Rezaul Karim, Advocate
instructed by Ms. Sufia Khatun,
Advocate-on-Record.
For Respondent No.2.
(In C.P. No.3939 of 2017)
: Not represented.
For Respondent Nos.1-2.
(In C.P. No.3283 of 2017)
: Mr. Md. Fazlur Rahman, Advocate
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-Record and
Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
For Respondent No.1.
(In C.P. No.3538 of 2018)
: Mr. Sharif Uddin Chaklader,
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.41.
(In C.P. No.3538 of 2018)
: Ms. Joya Bhattacharjee, Advocate
instructed by Mr. Md. Helal
Amin, Advocate-on-Record.
For Respondent Nos.2-40.
(In C.P. No.3538 of 2018)
: Not represented.
For Respondent No.1.
(In C.P. No.2586 of 2018)
: Mr. Mintu Kumar Mondall,
Advocate instructed by Ms. Madhu
Malati Chowdhury Barua,
Advocate-on-Record.
For Respondent No.28.
(In C.P. No.2586 of 2018)
: Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
For Respondent No.2-27.
(In C.P. No.2586 of 2018)
: Not represented. 4
For Respondent Nos.1-2.
(In C.P. No.1414 of 2018)
: Mr. Md. Fazlur Rahman, Advocate
instructed by Mr. Nurul Islam
Bhuiyan, Advocate -on-Record
(dead) and Mr. Syed Mahbubar
Rahman, Advocate-on-Record.
For Respondent No.1.
(In C.P. No.4229 of 2018)
: Mr. M. Qumrul Hoque Siddique,
Senior Advocate Mr. Md. Momin
Uddin, Advocate-on-Record.
For Respondent No.7.
(In C.P. No.4230 of 2018)
: Mr. M. Qumrul Hoque Siddique,
Senior Advocate Mr. Md. Momin
Uddin, Advocate-on-Record.
For Respondent No.2.
(In C.P. No.4229 of 2018)
: Not represented.
For Respondent Nos.1-6.
(In C.P. No.4230 of 2018)
: Not represented.
For the Respondents.
(In C. P. No.4675 of 2018)
: Mr. Md. Taufique Hossain,
Advocate-on-Record.
For Respondent No.1.
(In C. P. No.1704 of 2019)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent No.2.
(In C. P. No.1704 of 2019)
: Mr. Md. Nurul Islam Chowdhury,
Advocate-on-Record.
For Respondent No.1(a)-1(h).
(In C. P. No.1705 of 2019)
: Mr. Abul Khair, Senior Advocate
instructed by Mr. Md. Taufique
Hossain, Advocate-on-Record.
For Respondent No.2.
(In C. P. No.1705 of 2019)
: Not represented.
For the Respondent.
(In C. P. No.1706 of 2019)
: Mr. Probir Neogi, Senior Advocate
instructed by Mr. Md. Zahirul
Islam, Advocate-on-Record.
Date of Hearing. : The 30th & 31st January, 2024.
Date of Judgment. : The 06th February, 2024.
J U D G M E N T
Borhanuddin,J: Since both the civil appeal and connected
civil petitions involve identical point of law based on
similar facts as such all are taken together for hearing
and disposed of by this common judgment. 5
Both the civil appeal arose out of the judgment and
order dated 12.11.2017 passed by the High Court Division
in Writ Petition No.10033 of 2017 disposing of the Rule
with direction.
Brief facts are that t he respondent no.1 herein as
petitioner preferred the writ petition Challenging Memo
No.07.00.0000.153.015.06.17-81 dated 21.03.2017 issued
and signed by the writ-respondent no.7, Deputy Secretary,
Finance Division, Ministry of Finance, preferring the
‘Badshagonj Public High School’ for nationalization at
Dharmapasha Upazilla under Sunamgonj District instead of
‘Janata Model High School’ Dharmapasha, Sunamgonj, in
violation of the guideline framed by the writ -respondent
no.1 and also seeking direction upon the respondents to
nationalize ‘Janata Model High School’ pursuant to
guideline and policy of nationalization of non -Government
school and college.
Background of the civil appeals as well as the civil
petitions are that the Government has taken initiative
for nationalization of college and school in every
Upazilla of the country and accordingly, the writ -6
respondent no.1 framed a guideline ; The guideline sets
7(seven) prerequisites for nationalization; Accordingly,
the authority of the ‘Janata Model High School’ filed
representation with a detail ed information of the school
to the Prime Minister’s Office through local Member of
the Parliament; The Prime Minister’s Office on 18.11.2014
sent a letter to the writ -respondent no.1 , Secretary,
Ministry of Education, for taking necessary steps for
nationalization of the school; On 21.12.2014, the writ -
respondent no.1 forwarded a letter to the writ -respondent
no.3, Director General (DG), Department of Secondary and
Higher Education, Dhaka , for collecting necessary
information; On 15.01.2015, the writ -respondent no.5 ,
Assistant Director (Secondary-1), Department of Secondary
and Higher Education, Dhaka , issued a letter infavour of
the respondents as well as the Head Master of the ‘Janata
Model High School’ informing that an inspection committee
has been formed for holding inspection of the school; On
13.07.2016, the writ -respondent no.5 issued a Memo
bearing No.37.02.0000.106.49. 002.15 -976 enclosing name
of 119 schools of different upazillas, barring the school 7
authority from transferring movable and immovable
properties of the school and spending money from the
school fund in order to nationalize the school s and
petitioner’s school was list ed in Serial No.13 in the
memo; All on a sudden, the writ -respondent no.7, Deputy
Secretary, Finance Division, Ministry of Finance,
published a list of total 42 schools which are to be
nationalized vide Memo No.07.00.0000.153.015.06.17 -81
dated 21.03.2017 where the name of the ‘Janata Model High
School’ disappeared and name of the ‘Badshagonj Public
High School’ was listed in Serial No.33; ‘Janata Model
High School’ was established in the year 1931 on 3.02
acres of land; On the other hand ‘Badshagonj Public High
School’ was established in the year 1950 on 2.00 acres of
land; The ‘Janata Model High School’ consists of 8(eight)
buildings having 32 teachers and staffs, 2333 students,
well equipped laboratory and library and th e school is a
recognized centre for J.S.C. and S.S.C. examinations; On
the contrary, ‘Badshagonj Public High School’ consists of
5(five) buildings; The ‘Janata Model High School’ is
situated in Dharmapasha Upazilla within 0(zero) kilometer 8
from the Upazill a Sadar and the ‘Badshagonj Public High
School’ is situated about 7(seven) kilomet er away from
Upazilla Sadar; In the circumstances, the writ -petitioner
on 12.10.2017 sent a notice demanding justice to the
writ-respondents requesting nationalization of the
‘Janata Model High School’ but no step has been taken; As
such the writ -petitioner constrained to file the writ
petition and obtained a Rule Nisi.
Upon hearing the parties, the High Court Division
disposed of the writ petition with a direction that the
writ-respondent nos.1 -10 shall perform all formalities
for nationalization of the ‘Janata Model High School’.
The High Court Division without interfering in the
process of nationalization of ‘Badshagonj Public High
School’ observed that both the schools sh all be
nationalized.
Having aggrieved, the Government and the writ -
respondents have filed separate petitions for leave to
appeal being Civil Petition for Leave to Appeal Nos.967
of 2018 and 1337 of 2018 respectively. Both the civil 9
petitions were heard together and a single leave granting
order passed by this Division on 12.07.2018.
Consequently, these civil appeals arose.
Mr. Sk. Md. Morshed, learned Additional Attorney
General appearing for the appellants in both the appeals
submits that nationalizatio n of school or college is a
policy decision of the Government which is not a subject
matter of judicial review and as such the direction given
by the High Court Division in not sustainable in law . He
further submits that the policy decision must be left to
the Government as it alone can decide which policy should
be adopted after consideration of all aspects from
different angles. He again submits that the High Court
Division erred in law in directing the Government for
nationalization of the writ -petitioner’s school without
considering that mere preparation of the list for
inspection does not confer any legal right to the writ -
petitioner as such the impugned judgment and order with
direction is liable to be set -aside. He lastly submits
that the High Court D ivision erred in law in directing
the Government to include ‘Janata Model High School’ 10
alongwith the ‘Badshagonj Public High School’ for
nationalization which is beyond the guideline framed by
the Government . In support of his submissions, the
learned Additional Attorney General referred to the case
of Raypur L.M. Pilot Model High School vs. The Government
of Bangladesh and others, reported in 6 LM (AD)(2019) 269
and also referred to an unreported decision dat ed
22.05.2022 passed by this Division in Civil Petition for
Leave to Appeal No.4549 of 2018.
On the other hand, Mr. Probir Neogi learned Advocate
appearing for the respondents submits that by the memo
dated 13.07.2016 the respondents listed the writ -
petitioner’s school in Serial No.13 for nationalization
imposing certain restrictions and injunctions which were
complied with by the school and thus the school
authority, students and guardians legitimately expected
that the school would be nationalized and as such the
High Court Division rightly disposed of the Rule issuing
necessary directions. He also submits that the ‘Janata
Model High School’ fulfil led the prerequisites of the
guideline framed for nationalization of schools and 11
colleges and as such droppin g the name of the writ-
petitioner’s school is a malafide act of the respondents
which is by its nature an act without jurisdiction as
such the High Court Division justly and legally passed
the impugned judgment and order with direction. In
support of his s ubmissions he referred to the case of
M/S. Hajee Mohammad Ali & sons vs. Burma Eastern Ltd. and
others, reported in 38 DLR (AD) 41 and the case of Abdul
Rauf and others vs. Abdul Hamid Khan and others, reported
in 17 DLR (SC) 515.
Heard the learned Advocate for the respective parties
and perused the impugned judgment and order passed by the
High Court Division and other papers/ documents contained
in the paper books.
It appears that the petitioner’s school was listed
for consideration to be nationalized vide memo dated
13.07.2016 with direction to do and/not to do some acts.
Accordingly, authority of the school acted in compliance
with the said instructions to its disadvantage. Fairly on
this aspect, this Court is of the opinion that the school
authority has acquired legal right to know as to why 12
their school has not been nationalized. The students,
guardians, teachers of the school as well as inhabitants
of the locality were mentally prepared for
nationalization of the school and the y acted to their
disadvantage in various ways for such nationalization but
subsequently vide memo dated 21.03.2017 they came to know
that the name of another school was inserted instead of
their school for reasons not known to them. This should
not be the policy decision of the Government. The act of
the writ -respondent in dropping the name of the
petitioner’s school is a clear violation of the principle
of natural justice. True, nationalization of a particular
school is not a matter of judicial review and it is also
true that the policy decision must be left to the
Government. But the court can consider whether a decision
making authority exceeded its power, committed an error
of law, violated rules of natural justice, reached a
decision which no reaso nable man would have reached or
otherwise abuse its power.
In view of the facts and circumstances, we are not
inclined to interfere with the impugned judgment and 13
order alongwith the direction passed by the High Court
Division. But considering the discussions made above and
for the reasons stated therein, we are modifying
direction of the High Court Division passed in the
operative portion of the impugned judgment and order in
the following manner:
“We, therefore direct the respondent nos.1 -
10 to do all th e formalities for
nationalization of ‘Janata Model High
School’ in near future when occasion arose.”
The other portions of the impugned judgment and order
passed by the High Court Division shall remain as it is.
Accordingly, b oth the Civil Appeal Nos.153 -154 of
2018 are disposed of with the above modification and
direction. Connected Civil Petitions for Leave to Appeal
are disposed of in the light of the judgment and order
delivered in C.A. Nos.153-154 of 2018.
No order as to costs.
J.
J.
J.
J.
The 6th February, 2024.
Jamal/B.R./Words-*-------*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.81 OF 2016
(From the judgment and order dated 02.01.2011 passed by the High Court Division in
Writ Petition No.3395 of 2008)
Commissioner of Customs and
others
…..….Appellants
-Versus-
United Plastic Work Industries
(Pvt.) Ltd
...…..…Respondent
For the appellants
: Mr. A.M. Amin Uddin, Attorney
General with Mr. Sk. Md.
Morshed, Additional Attorney
General and Mr. Samarendra
Nath Biswas, Deputy Attorney
General, instructed by Mr.
Haridas Paul, Advocate-on-
Record.
For the respondent
: Mr. Munshi Moniruzzaman,
Advocate, instructed by Mr. Md.
Zahirul Islam, Advocate-on-
Record.
Date of hearing : The 3rd day of January, 2024
Date of judgment : The 6th day of February, 2024
JUDGMENT
Obaidul Hassan, C.J. The Civil Appeal by leave granting
order dated 07.01.2016 in Civil Petition for Leave to Appeal No.1326
of 2011 is directed against the judgment and order dated 02.01.2011
passed by a Division Bench of the High Court Division in Writ
Petition No.3395 of 2008 making the Rule absolute with direction.
=2=
The facts essential for disposal of the Civil Appeal, in brief, are
that writ-petitioner-respondent filed Writ Petition being No.3395 of
2008 before the High Court Division challenging the demand notice
dated 13.04.2008 issued by writ-respondent No.1 under Section 55
(1) of the VAT Act, 1991 directing the writ-petitioner to deposit
Tk.34,75,555.00 to the Government Treasury and also the notice of
the same dated 13.04.2008 issued by writ-respondent No.1 under
Section 37(2) of the VAT Act, 1991 requiring the writ-petitioner to
show cause as to why penal action would not be taken against it.
The writ-petitioner-respondent filed the aforesaid writ
petition contending, inter alia, that the writ-petitioner company is
engaged in the business of import, export and manufacture of
leather goods. The company has been paying VAT regularly
through ‘Musak Chalan’ and monthly statements were being
submitted regularly to the Divisional Office of VAT authority. The
writ-petitioner preserves the copies of the aforesaid monthly return.
The writ-respondent No.1-appellant No.1 issued a demand notice
on 13.04.2008 under Section 55(1) of the VAT Act, 1991 directing the
writ-petitioner to deposit Tk.34,75,555.00 within 10(ten) days
through treasury chalan without issuing any prior show cause notice
alleging that the writ-petitioner company evaded VAT for an
amount of Tk.34,75,555.00 against Bill of Entry No.C-163414 dated
14.07.2004, C-167237 dated 17.07.2004, C-272541 dated 01.11.2004
=3=
and C-290026 dated 23.11.2004 on the basis of assumption stating
that 1,36,296.29 running feet plastic board could be made by the
18,4000 kg raw materials under the aforesaid bills of entry and the
value of the said goods stood at Tk.2,31,70,370.00 as per value
approval dated 13.10.2004 @Tk.170 per running feet and therefore
the writ-petitioner is liable to pay Tk.34,75,555.00 applying VAT
upon the said value.
The writ-respondent No.1-appellant No.1 on the same day i.e.
13.04.2008 also issued a show cause notice under Section 37(2) of the
VAT Act, 1991 for taking penal action against the respondent No.1
without establishing the evasion of VAT in accordance with law.
Upon preliminary hearing of the Writ Petition, Rule was
issued by the High Court Division. During final hearing, the writ-
respondents-appellants could not file affidavit-in-opposition
controverting the statements made by the writ-petitioner. A
Division Bench of the High Court Division upon hearing the parties,
vide judgment and order dated 02.01.2011 made the Rule absolute.
Being disgruntled and dissatisfied with the impugned
judgment and order of the High Court Division the writ-
respondents-appellants filed the Civil Petition for Leave to Appeal
No.1326 of 2011 and hence the instant appeal.
Mr. A.M. Amin Uddin, learned Attorney General along with
Mr. Sk. Md. Morshed, learned Additional Attorney General and Mr.
=4=
Samarendra Nath Biswas, learned Deputy Attorney General
appearing on behalf of the appellants taking us through the
judgment and order dated 02.01.2011 passed by the High Court
Division in Writ Petition No.3395 of 2008 as well as the materials on
record submitted that the High Court Division erred in law in
making the Rule absolute ignoring the fact that the Commissioner of
VAT rightly issued separate notices under Sections 55 and 37 of the
VAT Act both dated 13.04.2008 and both the Sections are
independent provisions of the VAT Act. The learned Attorney
General contended next that the High Court Division erred in law in
making the Rule absolute without considering that Section 55 of the
VAT Act deals with realization of unpaid or less paid VAT and
Section 37 of the VAT Act deals with penalty after violation of
certain provisions of the VAT Act including willful evasion of the
VAT. The learned Attorney General argued next that the High
Court Division erred in law in making the Rule absolute and, as
such, the Writ Petition No.3395 of 2008 is not maintainable as being
premature as it was filed impugning the notices for showing cause
and, as such, the impugned judgment and order passed by the High
Court Division is liable to scraped.
Per contra, Mr. Munshi Moniruzzaman, the learned Counsel
appearing on behalf of the respondent contended that the impugned
demand notice dated 13.04.2008 under Section 55(1) was issued
=5=
without any prior show cause notice to the writ-petitioner as
contemplated in Section 55(3) of the VAT Act. The learned Counsel
argued next that no penal action for evasion of VAT could be taken
under Section 37(2) of the VAT Act before final demand is
established in accordance with Section 55 of the VAT Act and in the
case in hand no final demand had been established in accordance
with Section 55 of the VAT Act, therefore the show cause notice
dated 13.04.2008 under Section 37(2) of the VAT Act is liable to be
declared to be illegal and is of no legal effect and the High Court
Division on proper appreciation of all legal and factual aspects of
the case made the Rule absolute and as such the impugned
judgment and order of the High Court Division does not call for
interference by this Division.
We have gone through the judgment and order dated
02.01.2011 passed by the High Court Division, submissions of the
learned counsels for both sides as well as the materials on record.
It is on the record that the writ-petitioner-respondent
challenged two notices both dated 13.04.2008 issued by the writ-
respondent No.1. The writ-petitioner challenged the legality of
notice dated 13.04.2008 issued by the writ-respondent No.1 under
Section 55(1) of the VAT Act, 1991 in violation of the provisions as
contemplated under Section 55(3) of the VAT Act, 1991 without
giving the writ-petitioner an opportunity of being heard.
=6=
At this juncture, it is prudent to discuss the provisions of law
as laid down under Section 55 of the VAT Act, 1991. Section 55 of
the VAT Act, 1991 is extracted in the following:
”অনাদায়ী ও কম পিরেশািধত মূলҝ সংেযাজন করসহ অনҝানҝ ზћ-কর আদায়
৫৫৷(১) έযেϠেϏ έকােনা িনবিсত বা িনবсনেযাগҝ বҝΝЅ বা টাণκওভার কর এর
আওতায় তািলকাভΦЅ বা তািলকাভΦΝЅর έযাগҝ বҝΝЅ, তদকতৃ κক ধারা ৩৭ এর উপ-ধারা
(২) এ বিণκত এক বা একািধক অপরাধ সংঘটেনর কারেণ অথবা ভΦলবশত: বা ভΦল
বҝাখҝার কারেণ, সরবরাহক ৃ ত পণҝ বা ϕদЫ έসবার উপর ϕেদয়-
(ক) মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზћ ধাযκ বা
পিরেশাধ করা হয় নাই,
(খ) একই কারেণ মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক
ზћ έফরত ϕদান করা হইয়ােছ,
(গ) ধারা ১৩ এর অধীন মূলҝ সংেযাজন কর, সѕূরক ზћ, আমদািন ზћ, আবগারী
ზћ, অনҝানҝ ზћ ও কর (আগাম আয়কর বҝতীত) ϕতҝপκণ করা হইয়ােছ,
(ঘ) বাংলােদেশ সরবরাহক ৃ ত έকান পণҝ বা έসবার উপর ϕেদয় মূলҝ সংেযাজন কর বা,
έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზেћর িবপরীেত সমуয় করা হইয়ােছ,
έসেϠেϏ উЅ বҝΝЅেক তাহার উপর έয তািরেখ উЅ মূলҝ সংেযাজন কর বা,
έϠϏমত, মূলҝ সংেযাজন কর ও সѕূরক ზћ ϕেদয় হইয়ািছল বা ϕতҝপκণ বা έফরত
ϕদান বা সমуয় করা হইয়ািছল έসই তািরখ হইেত পাঁচ (৫) বৎসেরর মেধҝ সংিѫѭ মূলҝ
সংেযাজন কর কমκকতκা έনাΜটশ еারা, έনাΜটেশ উিѣিখত ზћ বা মূলҝ সংেযাজন কর
দািব কিরয়া, উহােত উিѣিখত সময়সীমার মেধҝ উЅ ზћ বা মূলҝ সংেযাজন কর
পিরেশােধর জনҝ কারণ দশκােনা έনাΜটশ জাির কিরেবন।
তেব শতκ থােক έয, যিদ έকান বҝΝЅ ধারা ৩৭ এর উপ-ধারা (২) এর দফা (ক), (গ), (চ),
(জ), (ঝ), (ট) ও (ঠ) এর অধীন অপরাধ সংঘটন কেরন, তাহা হইেল মূলҝ সংেযাজন
কর কমκকতκা, বা έϠϏমত, সংিѫѭ বҝΝЅর έϠেϏ এই উপ-ধারায় উিѣিখত ৫(পাঁচ)
বৎসর সময়সীমা ϕেযাজҝ হইেব না।
(২) আমদািনক ৃ ত পেণҝর έϠেϏ έকান মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ
সংেযাজন কর ও সѕূরক ზћ, έকান কারণবশতঃ পিরেশাধ করা না হইয়া থািকেল বা
ভΦলবশতঃ কম পিরেশািধত হইয়া থািকেল বা έফরত ϕদЫ হইয়া থািকেল উহা
Customs Act এর Section 32 এবং section 83A έত ϕদЫ িবধান অনুযায়ী আদায়
করা হইেব।
(৩) উপ-ধারা (১) এর অধীন ზћ ও কর ϕদােনর জনҝ έযই বҝΝЅর িনকট হইেত দাবী
করা হয় έসই বҝΝЅ উЅ উপ-ধারার অধীন কারণ দশκােনা έনাΜটেশ উিѣিখত সময়
সীমার মেধҝ িলিখতভােব উЅ দাবীর িবেд আপিЫ উЬাপন কিরেল তাহােক
ზনানীর সুেযাগদান কিরেত হইেব; অতঃপর উЅ বҝΝЅর উЬািপত আপিЫ িবেবচনা
কিরয়া সংিѫѭ মূলҝ সংেযাজন কর কমκকতκা উЅ আপিЫ দািখেলর ১২০(একশত িবশ)
িদেনর মেধҝ বা έকান আপিЫ দািখল করা না হইেল উЅ উপ-ধারার অধীন έনাΜটশ
জারীর তািরেখর ১২০(একশত িবশ) িদেনর মেধҝ έনাΜটেশ দাবীক ৃ ত ზћ ও কেরর
=7=
পিরমান,ϕেয়াজনেবােধ, পুনঃিনধκারণοেম চ ূ ড়াо কিরেত পািরেবন, এবং উЅ বҝΝЅ
έনাΜটেশ দাবীক ৃ ত বা, έϠϏমত, পুনঃিনধκািরত ზћ ও কর পিরেশাধ কিরেত বাধҝ
থািকেবন ৷
(৪) উপ-ধারা (১) এ অধীন ზћ ও কর ϕদােনর জনҝ έযই বҝΝЅর িনকট হইেত দাবী
করা হয়, έসই বҝΝЅ িলিখতভােব উЅ দাবীক ৃ ত অথκ িকΝѷেত পিরেশােধর ইИা বҝЅ
কিরেল কিমশনার তত্কতৃ κক িনধκািরত শতκ ও িকΝѷেত উЅ দাবীক ৃ ত ზћ ও কর
পিরেশােধর জনҝ আেদশ ϕদান কিরেত পািরেবন:
তেব শতκ থােক έয, িকΝѷ ϕদােনর সময়সীমা ছয় মােসর অিতিরЅ হইেব না ৷”
(underlines supplied by us)
It appears from Section 55(3) of the VAT Act, 1991 that before
issuing a notice regarding evasion of VAT against a person the VAT
authority is required to issue a show cause notice giving the person
sufficient time stipulated in Section 55(3).
The relevant portion of the impugned notice under Section
55(1) of the VAT Act is reproduced below:
(underlines supplied by us)
But in the case in hand the writ-respondent No.1-appellant No.1
issued the demand notice dated 13.04.2008 under Section 55 (1) of
the VAT Act, 1991 directing the writ-petitioner to deposit
Tk.34,75,555.00 to the Government Treasury as the petitioner was
=8=
allegedly evaded the said amount of VAT. The VAT authority did
not state within the four corners of the said notice whether the writ-
petitioner-respondent had been given an opportunity of being heard
as to the allegations of evasion of VAT rather the VAT authority
directed the writ-petitioner to deposit the evaded amount of VAT in
the government exchequer within 10(ten) working days. In doing
so, the writ-respondent No.1-appellant No.1 did not comply with
the mandatory provisions of law as contemplated under Section
55(3) of the VAT Act.
In the premises as stated above, we are of the view that the
notice dated 13.04.2008 issued by the writ-respondent No.1-
appellant No.1 under Section 55(1) of the VAT Act, 1991 is
unwarranted and without jurisdiction and as such the same is liable
to be scraped. In this regard, the High court Division did not
commit any illegality declaring the said notice under Section 55(1)
unlawful.
It is apparent from the record that the writ-respondent No.1-
appellant No.1 issued another notice to the writ-petitioner on the
same date i.e., 13.04.2008 to show cause as to why penal action
should not be taken against the writ-petitioner under Section 37(2)
of the VAT Act, 1991.
Section 37 of the VAT Act is stated below:
”অপরাধ ও দЦসমূহ
৩৭। (২) যিদ έকােনা বҝΝЅ-
=9=
(ক) কর চালানপϏ ϕদান না কেরন অথবা ვЯপূণκ তেথҝর িদক হইেত অসতҝ কর
চালানপϏ ϕদান কেরন, অথবা
(কক) িনবিсত হওয়া সেϬও কর চালানপϏ বҝতীত পণҝ বা έসবা ςহণ কেরন, অথবা
(খ) তৎকতৃ κক সরবরাহক ৃ ত পণҝ বা έসবার έϠেϏ, সংিѫѭ কমκকতκা কতৃ κক দুইবার
িনেদκিশত হওয়া সেϬও, মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর ও
সѕূরক ზћ ϕদান কিরেত অথবা έকান কর έময়ােদ দািখলপϏ ϕদােনর িনিদκѭ
সময়সীমা অিতοাо হইয়া έগেলও উহা দািখল কিরেত বҝথκ হন, অথবা
(গ) ვЯপূণκ তেথҝর িদক হইেত অসতҝ দািখলপϏ ϕদান কেরন, অথবা
(ঘ) িবοয় িহসাব পুѷেক িবοয় সংοাо তথҝ িলিপবд না কিরয়া এবং চলিত িহসাব
পুѷেক ϕেদয় মূলҝ সংেযাজন কর িলিপবд না কিরয়া পণҝ সরবরাহপুবκক মূলҝ
সংেযাজন কর ফাঁিক έদওয়ার έচѭা কেরন, অথবা
(ঙ) οয় িহসাব পুѷেক ৪৮ ঘлার মেধҝ] িলিপবд না কিরয়া মূলҝ সংেযাজন কর ফাঁিক
έদয়ার έচѭা কেরন, অথবা
(চ) মূলҝ সংেযাজন কর কমκকতκােক έকান জাল বা িমথҝা দিললপϏ ϕদান কিরয়া উহার
মাধҝেম কর ফাঁিক έদন বা έদওয়ার έচѭা কেরন বা ϕতҝপκণ ςহণ কেরন বা ςহেণর
έচѭা কেরন , অথবা
(ছ) সংিѫѭ মূলҝ সংেযাজন কর কমκকতκা কতৃ κক িনেদκিশত হওয়া সেϬও, έকান িনবিсত
বা িনবсনেযাগҝ বҝΝЅ έকান তথҝ বা দিললািদ সরবরাহ কিরেত বҝথκ হন, অথবা
(জ) এই আইন বা িবিধ অনুযায়ী সংরϠণ করা ϕেয়াজন এইপ έকান নিথপϏ,
ইেলϢিনক কҝাশ έরΝজѶার বা Point of Sales (POS) Software এ কΟѕউটাের িহসাব
সংরϠণ না কেরন অথবা অনুপ έকান নিথপϏ, ইেলϢিনক কҝাশ έরΝজѶার বা POS
Software এ কΟѕউটাের সংরিϠত িহসাব йংস বা পিরবতκন কেরন বা উহার
অДেИদ কেরন বা উহােক িমথҝা ϕিতপт কেরন অথবা উЅ নিথপϏ, ইেলϢিনক
কҝাশ έরΝজѶার বা POS Software এ কΟѕউটাের িহসাব এই আইেনর ϕেয়াজন
έমাতােবক সংরϠণ না কেরন, অথবা
(ঝ) সϡােন িমথҝা িববরণ বা িমথҝা έঘাষণা ϕদান কেরন, অথবা
(ঞ) মূলҝ সংেযাজন কর সংοাо έকান নিথপϏ, ইেলϢিনক কҝাশ έরΝজѶার বা POS
Software বা কΟѕউটার বিহ বা অনҝ έকান দিললপϏ পিরদশκন বা আটক করার জনҝ
এই আইেনর অধীন Ϡমতাϕাч έকান মূলҝ সংেযাজন কর কমκকতκােক তাহার বҝবসার
Ѹেল ϕেবশকােল বাধা ϕদান কেরন বা ϕেবশ করা হইেত িবরত কেরন, অথবা
(ট) έকােনা পেণҝর উপর ϕেদয় মূলҝ সংেযাজন কর বা, έϠϏমত, মূলҝ সংেযাজন কর
ও সѕূরক ზћ ফাঁিক έদওয়া হইয়ােছ বিলয়া জানা বা িবѩাস করার মত কারণ থাকা
সেϬও উЅ পণҝ ςহেণ বা উহার দখল অজκেন বা έলনেদেন িলч হন, অথবা
(ঠ) জাল বা ভ ূ য়া চালানপেϏর মাধҝেম উপকরণ কর έরয়াত ςহণ কেরন, অথবা
(ড) অনҝ έয έকােনা উপােয় মূলҝ সংেযাজন কর বা সѕূরক ზћ ফাঁিক έদন বা
έদওয়ার έচѭা কেরন, অথবা
(ঢ) িনবিсত বҝΝЅ না হইয়াও এইপ έকান কর চালানপϏ ϕদান কেরন যাহােত মূলҝ
সংেযাজন কেরর পিরমাণ উেѣখ করা থােক, অথবা
(ণ) ধারা ৬ এর উপ-ধারা (৪ক) এর িবধান অনুযায়ী করণীয় έকান িকছΦ না কিরেল বা
করণীয় নয় এমন িকছΦ কেরন, অথবা
=10=
(ত) এই আইন বা িবিধর অধীন έকান পণҝ অপসারণ বা έসবা ϕদােনর έϠেϏ চলিত
িহসােব έয পিরমাণ, যাহা еারা জমাক ৃ ত অেথκর এবং ϕদЫ উপকরণ কর বাবদ ϕাপҝ
έরয়ােতর সমΜѭর еারা ϕেদয় উৎপাদন কর পিরেশাধ বা সমуয় করা যায়, έজর রাখা
ϕেয়াজন িকᅀ έসই পিরমাণ έজর না রািখয়া পণҝ অপসারণ বা έসবা ϕদান কেরন,
অথবা
(থ) দফা (ক) হইেত দফা (ত) এ বিণκত έয έকান কাযκ কের বা কিরেত সহায়তা কেরন,
তাহা হইেল তাহার উЅ কাজ হইেব একΜট অপরাধ এবং উЅ অপরােধর কারেণ যিদ -
(অ) কর ফাঁিক সংঘΜটত হয়, তাহা হইেল িতিন উЅ কর ফাঁিক জিনত অপরােধর জনҝ
সংিѫѭ পণҝ সরবরাহ বা έসবা ϕদােনর উপর ϕেদয় কেরর অনূҝন অেধκক পিরমাণ
এবং অনূй κ সমপিরমাণ অথκদেн দнনীয় হইেবন;
(আ) উЅ অপরাধ কর ফাঁিক বҝতীত অনҝানҝ অিনয়ম সংοাо হয়, তাহা হইেল িতিন
অনূҝন ২০ (িবশ) হাজার টাকা এবং অনূй κ ৫০ (পНাশ) হাজার টাকা অথκদেн দнনীয়
হইেবন।
..................................................................................................................................................................
(৫) সংিѫѭ ব ҝΝЅেক যুΝЅসДত ზনানীর সুেযাগ (সংিѫѭ ব ҝΝЅ ই Иা কিরেল
বҝΝЅগতভােব বা তাহার মেনানীত έকৗশলীর মাধҝেম ზনানীর সুেযাগসহ) ϕদান না
কিরয়া তাহার উপর এই ধারার অধীন έকান অথκদн, έকান έѺশাল জেজর আদালত
কতৃ κক দЦােরাপ বҝতীত, আেরাপ করা যাইেব না বা তাহার বҝবসায় অДন তালাবд
করা যাইেব না বা তাহার িনবсন বািতল করা যাইেব না ৷
(৬)..........................................................................................................................................................”
(underlines supplied by us)
In view of Section 37(5) of the VAT Act, 1991 it is evident that
while imposing fine or penalty on a person the VAT authority is
under obligation to afford him an opportunity of being heard. The
appropriate portion of notice dated 13.04.2008 issued under Section
37(2) of the VAT Act, 1991 is extracted hereunder:
=11=
(underlines supplied by us)
It is palpable from the above that the VAT authority issued
the notice under Section 37(2) giving the writ petitioner 10(ten) days
time to show cause against the penal action to be taken by the VAT
authority. Therefore, the writ-respondent No.1-appellant No.1
issued notice to the writ-petitioner under Section 37(2) and
complied with the legal requirement of affording an opportunity of
being heard as prescribed under Section 37(5) of the VAT Act. In
view of the provisions of Section 37(5) as well as the given
backdrop, we find that the notice dated 13.04.2008 issued under
Section 37(2) of the VAT Act is lawful but the High Court Division
committed illegality in declaring the said notice unlawful and, as
such, the impugned judgment and order, so far as it relates to the
notice under Section 37(2) calls for interference by this Division.
In the light of the discussion made above as well as the facts
and circumstances of the case, the impugned judgment and order
=12=
dated 02.01.2011, so far as it relates to the notice dated 13.04.2008
issued under Section 37(2) of the VAT Act warrants interference by
this Division and accordingly, the Civil Appeal deserves to be
allowed in part.
Hence, the Civil Appeal is allowed in part.
The impugned judgment and order dated 02.01.2011 passed
by the High Court Division in Writ Petition No.3395 of 2008, so far
as it relates to the notice dated 13.04.2008 under Section 37(2) of the
VAT Act, 1991 is hereby set aside.
The notice dated 13.04.2008 issued under Section 55(1) of the
VAT Act, 1991 is declared to have been issued without lawful
authority. However, the concerned VAT authority is at liberty to
issue a fresh notice under Section 55(1) of the VAT Act, 1991 in
accordance with law.
C.J.
J.
J.
J.
The 06th day of February, 2024
RRO. Total words 3,143
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
CIVIL APPEAL NO. 412 OF 2019
(Arising out of C.P No. 2657 of 2018)
The Governme nt of Bangladesh
represented by the Secretary, Ministry
of Law, Justice and Parliamentary
Affairs and others
.... Appellants
-Versus-
Md. Saiful Islam and others ....Respondents
For the Appellants : Mr. Sk. Morshed , Adl. AG
instructed by Mr. Haridas Paul ,
Advocate-on-record
For Respondent No. 1 : Mr. Momtazuddin Fakir , Senior
Advocate with Mr. Sk. Saifuzzaman,
Advocate instructed by Mr. Md.
Zahirul Islam, Advocate-on-record
For Respondent Nos.
2-30
: Not represented
For Respondent Nos.
31-62
: Mr. Satya Ron jon Mondall,
Advocate-on-record
Date of Hearing : 29.08.2023
Date of Judgment : 30.08.2023
J U D G M E N T
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 05.02.2017 passed by
the High Court Division in Writ Petition No s. 13783 and
13784 of 2015 making both the Rules absolute and thereby
directing the writ-respondents to regularize the services
of the writ-petitioners in the post of Extra Moharar 2
under the revenue setup of the Department of Registration
with continuity of service with attending benefits.
The short facts are that the present respondent Nos.
1-30 as petitioners filed the aforesaid writ petition s
seeking a direction upon the writ -respondents to
regularize their service in the post of Extra Moharar
under the revenue setup of the Department of Registration
with continuity of service and all other benefits
contending inter alia that the terms and conditions of
the Extra Moharars are governed by the provisions of
Chapter 16 of the Registration Manual. As per the
provision of rule 310(a) of Volume-VI of the Registration
Manual, Extra Moharar is a permanent post under the
office of the Registration. Earlier the services of many
Extra Moharars were confirmed/regularize d. But the
Department of Registration denied to give the same
benefits to the present Extra Mohrars. Extra Moharars of
West Bengal, India were also confirmed/regularized as
Government Employees and were also granted their entitled
scales.
At one point of time Bangladesh Extra Moharar
(copyist) Associa tion started movement seeking their 3
confirmation/regularization in service . After long laps e
of time, the Department of Registration had recommended
to constitute a committee headed by a Joint Secretary
(Admin) on 04.02.2013 and ultimately a 6 member committee
headed by the Joint Secretary (Admin) of Ministry of Law,
Justice and Parliamentary Affairs was constituted to look
into the demands of the Extra Moharars. On 22.07.2013,
the committee had held its meetin g and recommended to
appoint the Extra Moharars in Grade -19 of the National
Pay Scale of 2009 prescribing the maximum age limit as 19
years.
On 24.09.2013, the Ministry of Public Administration
sought consent to create required number of permanent
posts of the Extra Moharars in order to absorb them. On
12.12.2013, the Ministry of Public Administration had
made some queries and asked writ-respondent No.1 ,
Ministry of Law, Justice and Parliamentary Affairs to
send a copy of the recruitment rules/provision an d the
clear recommendation of the Administrative Ministry.
Since then, the claims of the writ-petitioners still
remained unanswered and their grievances are yet to be
met. Finding no other alternative efficacious remedy, the 4
writ petitioners moved before the High Court Division and
obtained Rule.
Writ-respondent No.4 , the Inspector General of
Registration, Department of Registration contested the
Rule by filing affidavit-in-oppositions contending, inter
alia, that the Ministry of Establishment at present t he
Ministry Public Administration has not approved the
proposal and there is no Service Rules for the extra
Moharars by which they can be appointed or absorbed in
the revenue budget. The extra Moharars are enlisted by
the District Registrar on the report of Sub-Registrar. In
their appointment letter, no a ssurance was given to
absorb/regularize them in their service in the revenue
budget.
The High Court Division, by the impugned judgment and
order, made the Rule s absolute. Against which, the
Government filed this civil petition for leave to appeal
and obtained leave giving rise to this appeal.
Mr. Sk Md. Morshed , the learned Additional Attorney
General, appearing for appellants, submits that the
Moharars, wri t-petitioners of different Sub -registry
Offices, are being appointed by the District Registrar on 5
the report of Sub -Registrars and in the Registration
Manual, there is a clear provision regarding their
appointment and job nature and the terms and conditions
of the service as rendered by the Extra Moharar s are
ruled and governed by the provision of said Manual and
since the Registration Manual has not provided any
provision for absorption of the Extra Moharars in the
revenue budget and the High Court Division without
considering the aspects made the Rule a bsolute and as
such, the operation of the impugned judgment and order is
liable be set aside.
He further submits that the Extra Moharars belonged
to extra establishment created temporarily by the Sub -
Registrars with the sanction of the District Registrar
and since they are being recruited by the Sub -Registrars
on the exercise of discretion temporarily not against the
substantive and as such, they have not acquired any right
to get absorption of their service in the revenue budget
and as such, the impugned judgment and order is liable to
be set aside. 6
On the other hand the learned Advocate(s) appearing
for respondent s made their submissions supporting the
impugned judgment and order of the High Court Division.
We have heard the learned Advocates of both sides. We
have also perused the impugned judgment and order of the
High Court Division and other materials on record.
In the instant case the High Court Division held that
after having served a long period and now being barred by
excess age to apply for a government job afresh it is the
"legitimate expectation" of the writ-petitioners that
they would be absorbed/ appointed/ regularized in the
permanent posts of the department but the respondents for
malafide and oblique reasons are yet to make the writ-
petitioners permanent.
But with the decision of this Division in the case of
the secretary Ministry of the Fisheries and Livestock vs.
Abdur Razzak 71 DLR AD 395 and subsequent decision of
Director General, represented by the Bangladesh Rural
Development Board, Dhaka vs. Ashma Sharif 72 DLR AD 188,
the matter in issue regarding absorption in the revenue
budget has already been set at rest once and for all. The
agog of waiting has come to an end with the pronouncement 7
of those decisions. This Division has cleared u p every
aspect of the common issues leaving no ambiguity which is
no longer a res-integra.
However, eventually this Division in the case of
Secretary Ministry of Fisheries and Live stock Vs. Abdul
Razzak 71 DLR (AD) 395 has dealt with the issue of
absorption, regularization and transfer of the employees
in the revenue budget.
In the above case this Division held that:
"No court can direct the Government or its
instrumentalities to regularize the service of
the officers and employees of the development
project in the revenue budget in the cases where
statutory requirements have not been fulfilled.
Regularization cannot be claimed as a matter of
right. It is statutory requirement that
opportunity shall be given to eligible persons
by public notification and recruitment should be
according to the valid procedure and appointment
should be of the qualified persons found fit for
appointments to a post or an office under the
Government." 8
It is further observed to the effect:
"The legitimate expectation would not ov erride
the statutory provision. The doctrine of
legitimate expectation cannot be invoked for
creation of posts to facilitate absorption in
the offices of the regular cadres/non cadres.
Creation of permanent posts is a matter for the
employer and the same i s based on policy
decision"
In the case of the Director General, represented by
Bangladesh Rural Development Board (BRDB), Dhaka Vs. Asma
Sharif, Shariatpur and others report in 72 DLR (AD) 188
this Division also held that:-
"The theory of legitimate expec tation cannot be
successfully advanced by temporary, contractual
or casual employees. It cannot also be held that
the Government has held out any promise while
engaging these persons either to continue them
where they are or to make them permanent. The
Government cannot constitutionally make such a
promise. It is also obvious that the theory 9
cannot be invoked to seek a positive relief of
being made permanent in the post."
And
"However, sympathy, empathy or sentiment by
itself, cannot be a ground for passing an order
where the litigants miserably fail to establish
legal right. It is true that the respondents had
been working for a long time, the same by itself
would not be a ground for directing
regularization of the service."
It is also important to note some more observations
as made in the above case:
“The Constitution is the supreme law of the
State. All the institutions be it legislature,
executive or judiciary, being created under the
Constitution, cannot ignore it. The dictum - "Be
you ever so high, the law is above you" is
applicable to all, irrespective of his status,
religion, caste, creed, sex or culture. Henry D
Bracton-"The King is under no man but under the
God and the Law". No one is above the law. 10
It is to be noted that the Government has no
authority to issue any orders granting
regularization/absorption or appointment in
violation of the Constitutional scheme and
recruitment rules in force. All recruitment in
matters of Public employment must be made in
accordance with prevailing rules. While de aling
with the concept of recruitment the Supreme
Court of India has categorically laid down that
the expression "recruitment" would mean
recruitment in accordance with the Rules and not
dehors the same and if an appointment is made
dehors the Rules, it is not appointment in the
eye of law. (ref: RS Garg vs State of UP
MANU/SC/8239/2006 : (2006) 6 SCC 430 and
University of Rajasthan vs Prem Lata
MANU/SC/0106/2013 : AIR 2013 SC 1265).
Similarly, the High Court Division in exercising
power under Article 102 of the Constitution will
not issue any direction for transfer/absorption/
regularization or permanent continuance, unless
employees claiming so had been appointed in 11
pursuance of regular recruitment in accordance
with relevant rules in open competitive proc ess,
against sanction posts.
It is true that in their heydays of life the
respondents are serving on exploitative terms
with no guarantee of livelihood to be continued
and in old age they are going to be made
destitute, there being no provision for pensio n,
retirement benefits etc. The employment cannot
be on exploitative terms.
When the employees of the development projects
or casual employees appointed as stopgap
arrangement have put in for considerable years
of service in the posts and their works have
been approved but they could not be regularized,
the only provision provides for them is to
qualify the requisite examination and in such
circumstances, they would get relaxation of
upper age limit. If they are not selected, at
the end of the day, they wo uld return home from
their respective working place with empty hand.
It is the duty of the Government/employers to 12
provide some benefits to them, on the basis of
the period of service they rendered, so that
they may not fall in extreme hardship otherwise
the families of the those employees would face
economic ruination.”
So it is now well settled that Court cannot pass an
order to regularize/absorb the temporary, contractual or
casual employees under the revenue budget unless there is
any statutory provisi on and thus the respondents’ claim
of absorption i n the permanent post under the revenue
budget on the princip le or theory of legitimate
expectation has got no legal basis.
Fortified with the ratio decidendi that has been
spelt out in the decisions as refe rred to above we
unequivocally endorse the same principle and hold that
the writ-petitioners are not entitled to get any relief
as sought for. But at the same time we also
sympathetically endorse the view of this Division taken
in the case of 72 DLR AD (su pra) that the incumbent
respondents should not be driven out without anything and
the government should come forward in this respect in aid
of these hapless employees in these days of hardship. It
is our belief that the present respondents should not
face displacement without recourse. 13
In view of the above, we find merit in the appeal.
Accordingly, the appeal is allowed without any order
as to costs.
The judgment and order dated 05.02.2017 passed by the
High Court Division is hereby set aside.
J.
J.
J.
The 30th August, 2023
/Ismail,B.O./*2095*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan,C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.168 OF 2023
(From the judgment and order dated the 24th September, 2020 passed by a Division
Bench of the High Court Division in Writ Petition No.5495 of 2003)
Ansar V.D.P. Unnayan Bank : . . . Appellant
-Versus-
Ajoy Kumar Lodh and others : . . . Respondents
For the Appellant
: Mr. Mahbub Shafique, Advocate
instructed by Ms. Madhumalati Chy.
Barua, Advocate-on-Record
For the Respondent : Mr. Ajoy Kumar Lodh (in person)
Date of Hearing : The 20th and 28th day of February,2024
Date of Judgment : The 29 th day of February, 2024
J UD G M E N T
M. Enayetur Rahim, J: This appeal, by leave, is directed
against the judgment and order dated 24.09.2020 passed
by the High Court Division in Writ Petition No.5495 of
2003 making the Rule absolute.
The relevant facts for disposal of the instant
appeal are that, the present respondent No.1
(hereinafter referred to as writ-petitioner) was
appointed as an Officer in the Ansar VDP Unnayan Bank on
13.04.1998 and while he was performing his duty as a
manager at Companygonj Branch, Sylhet, a departmental 2
proceeding was initiated against him bringing 16 charges
and allegations under Rules 38(Ka)(Kha) and (Cha) of the
Sonali Bank Employees Service Regulations,1995 (briefly,
Regulations 1995). The writ-respondent No.5, Deputy
General Manager(Admin) of the aforesaid Bank on
18.01.2001, issued a show cause notice upon the
petitioner asking him to reply, if any, within 10(ten)
working days in connection with the allegations brought
against him. In response to the show cause notice, the
writ-petitioner had submitted his reply on 12.02.2001
denying all the material allegations levelled against
him.
Thereafter, on 11.03.2001 the concerned authority
formed an enquiry committee consisting of two members to
inquire into the charges and the committee after having
conducted the inquiry, filed a report on 29.03.2001
holding that the writ-petitioner is liable for the
charges Nos.1, 2, 9, 11 and 15 as recorded therein, and
some charges have been found partially established, and
three charges being Nos.3, 4 and 10 were found without
basis.
Afterwards, on 30.10.2001, the writ-respondent
No.4, General Manager(Administration), issued the final
show cause notice upon the writ-petitioner with a view
to remove him from service asking him to reply to that
effect within 7(seven) working days, if any (Annexure-E
to the writ-petition) and pursuant to that notice, the
writ-petitioner submitted a written reply on 15.11.2001 3
to the respondent No.4 categorically denying all the
allegations and charges brought against him. On receipt
on the reply, the writ-respondent No.5, issued an office
order dated 30.12.2001 removing the writ-petitioner from
his service under Rule 39(kha)(e) of Sonali Bank
Employees Service Regulations, 1995(Annexure-G), against
which the writ-petitioner filed a departmental appeal
before the writ-respondent No.3, Managing Director,
Ansar VDP Unnyan Bank, on 27.03.2002, which was
disallowed by the appellate authority.
Feeling aggrieved by the decision of the appellate
authority the writ-petitioner filed review petitions
twice before the writ-respondent No.3, Managing Director
and writ-respondent No.2, Chairman, Board of Directors
of the bank on 11.09.2002 and 13.05.2003 respectively,
which were not considered by the bank authorities vide
their orders dated 01.04.2003 and 23.06.2003
respectively.
The writ-petitioner finding no other alternative
and efficacious remedy, had moved before the High Court
Division by filing writ-petition No.5495 of 2003.
Mr. Mahbub Shafique, learned Advocate appearing for
the appellant having assailed the impugned judgment has
submitted that as per Rule 42(1)(Ka) of the Regulations,
1995 of the relevant service Rules, the charge sheet
dated 17.01.2001 was prepared and the same was served
upon the writ-petitioner and having received the same
the writ-petitioner submitted his reply on 12.02.2001 as 4
evident from Annexure-‘B’ to the writ-petition, but the
High Court Division without considering this aspect of
the case passed the impugned judgment.
He also submits that the High Court Division in the
impugned judgment and order held that the writ-
petitioner was not provided with the inquiry report, but
it transpires from final show cause notice served upon
the writ-petitioner under Rule 42(6) of the Regulations,
1995 (Annexure-‘E’ to the writ-petition) that the
inquiry report consisting of 22 (Twenty two) pages was
attached with the said final show cause notice as such
the impugned judgment and order is liable to set aside.
Mr. Mahbub lastly submits that 42(2)(Ga) of the
Regulations, 1995 empowered Ansar VDP Unnayan Bank to
form a 1(one) member or 3(three) members inquiry
committee to conduct the inquiry against the delinquent
employee and in the instant case the inquiry committee
consisted of 2(two) members for which the inquiry cannot
be vitiated as the inquiry committee was not the
decision making authority, but the High Court Division
without considering the aspect passed the impugned
judgment and order as such the same is liable to be set
aside.
However, the Respondent No.1 himself appeared in
the case and supports the impugned judgment passed by
the High Court Division.
A Division Bench of the High Court Division after
hearing the Rule made the same absolute, and thereby 5
declared the order of dismissal without lawful authority
and is of no legal effect.
Being aggrieved with the said judgment and order
the present appellant filed civil petition for leave to
appeal No.816 of 2021 and eventually, leave was granted.
Hence the present appeal.
We have considered the submissions of the learned
Advocate of the appellant as well as the Respondent
No.1, perused the impugned judgment and other materials
as placed before us.
Rule-42(Ga) of the relevant service Regulatory is
as applicable in the instance case runs as follows:
“42z (N) Eš² L¡kÑd¡l¡u A¢ik¤š² hÉ¢š²l Efl …l¦cä Bl¡fl SeÉ fkÑ¡ç L¡le
BR, a¡q¡ qCm A¢ik¡N ac¿¹l SeÉ A¢ik¤š² hÉ¢š²l fcjkÑ¡c¡l ¢ejÀ eqe
Hje HLSe ac¿¹ LjÑLaÑ¡ ¢eu¡N L¢lh Abh¡ Ae¤l¦f ¢aeSe LjÑLaÑ¡ pjeÄu
HL¢V ac¿¹ L¢j¢V NWe L¢lhz” (Underlines supplied).
From the above rule, it is crystal clear that to
impose higher punishment the authority may appoint an
inquiry officer to inquire into the matter or to form a
inquiry committee consisting of three members, but in
the instant case it is admitted fact that the inquiry
committee was formed by two persons and it is our
considered view the whole inquiry proceeding suffers
from lack of jurisdiction and the authority relying on
such inquiry report committed serious error of law in
awarding the punishment to the respondent No.1.
In view of the above, we are of the view that the
inquiry and as well as the punishment awarded on the
respondent No.1 is illegal and without jurisdiction and 6
as such there is no illegality or infirmity in the
judgment passed by the High Court Division.
Accordingly, the appeal is dismissed.
However, the period while the respondent was not in
the office shall be treated as leave without pay and the
respondent No.1 is entitled to get other benefit, if any
in accordance with law.
C.J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 133 OF 2023
(From the judgement and order dated the 29th day of June
2022 passed by the High Court Division in First
Miscellaneous Appeal No.309 of 2021).
Jahanara Begum and others : . . . . Appellants
-Versus-
Hazi Nizamuddin and another : . . . Respondents
For the Appellants : Mr. A.M. Amin Uddin, Senior Advocate,
with Mr. Mohammad Saiful Alam,
Advocate, instructed by Mr. Mohammad
Abdul Hai, Advocate-on-Record
For Respondent No. 1 : Mr. Md. Nurul Amin, Senior Advocate,
instructed by Mr. Md. Abdul Hye
Bhuiyan, Advocate-on-Record
Respondent No. 2 : Not represented
Date of hearing and judgment :
The 23th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: This civil appeal is directed against
the judgment and order dated 29.06.2022 passed by a Single
Bench of the High Court Division in First Miscellaneous
Appeal No.309 of 2021 allowing the appeal.
The facts, relevant for disposal of this civil
appeal, in brief, are that the present appellants and
respondent No.1 as petitioners filed Probate Case No.01 of
2018 before the learned Joint District Judge, 1st Court,
Cumilla stating, inter alia, that their father late Alhaj
Farid Uddin Ahmed died on 05.04.2018 after being executed
a Will being No.CIII 01 dated 22.01.2014 in favour of his 2
all sons and daughters. In order to enforce the above will
the petitioners executed an agreement on Non-Judicial
stamp with a view to implement their father’s wish and
subsequently, filed the above case for Probate.
Eventually, on 02.06.2021 the present appellants as
applicants filed an application for transposition of their
positions as opposite party Nos.2-8 from the petitioner
Nos.2-8 as they are not interested as per terms and
conditions for the Will being No.CIII-01 dated 22.01.2014
and the learned Joint District Judge, 1st Court, Cumilla
after hearing the said application allowed the same by
order No.20 dated 13.06.2021.
In this backdrop of the case, the present appellants
on 16.08.2021 filed an application under order 7, Rule 11
of the Code of Civil Procedure for rejection of the plaint
stating that the present respondent No.1 making false
statement filed the case and more than one-third property
of their deceased father has been sought for probate.
Ultimately, learned Joint District Judge, 1st Court,
Cumilla on the ground of his jurisdiction sent the case
record to the court of learned District Judge, Cumilla.
The learned District Judge, Cumilla after hearing the
application under order 7, Rule 11 of the Code of Civil
Procedure rejected the plaint on the ground that according
to the provisions of Section 213 of the Succession Act,
1925 a Mohammedan cannot establish his right as executor
or legatee.
Being aggrieved by the above verdict the present
respondent No.1 preferred First Miscellaneous Appeal
No.309 of 2021 before the High Court Division. 3
A Single Bench of the High Court Division after
hearing the said appeal by the impugned judgment and order
allowed the same and set aside the order passed by the
court below.
Feeling aggrieved by the said judgment and order the
present appellants have filed Civil Petition for Leave to
Appeal No. 2942 of 2022. Accordingly, leave was granted on
06.08.2023. Hence, this appeal.
Mr. A.M. Aminuddin, learned Senior Advocate,
appearing for the appellants made submissions in line with
grounds upon which leave was granted. In addition the
learned Advocate submits that it is statutory provision
of law, a Muslim may dispose of his property by will is
limited, in two way; first as regards the persons to whom
the property may be bequeathed, and secondly, as regards
the extent to which the property may be bequeathed but it
transpires from the instant petition of the probate
(plaint) that the alleged executor petitioner did not
specify the extent of property to be bequeathed and also
did not mention the name of the person(s) to whom the
property will be bequeathed. So it is as clear as day
light, the probate petition is apparently not in form, as
such the learned District Judge, Cumilla dismissed the
case summarily on point of maintainability but the
court of appeal without considering such legal aspect
allowed the appeal and gave direction to the District
Judge, Cumilla to proceed with the probate case which has
occasioned miscarriage of justice.
The learned Advocate further submits that the probate
case was filed by the present respondent No. 1 by 4
impleading the present appellants as petitioner Nos. 2 to
8; subsequently upon an application by the present
appellants, the petitioner Nos. 2 to 8 were transposed as
opposite party Nos. 1 to 7 vide order No. 23 dated
13.06.2021 of probate case No. 1 of 2018, the present
respondent No. 1, i.e. the petitioner No. 1 of the probate
case did not challenge the said order of transposition in
the superior court. So it is apparent that the petitioner
No. 1 of the probate case by practicing fraud impleaded
the present appellants as co-petitioner and tried to
obtain an order of probate in favour of him by fraudulent
way. As granting of probate is an equitable relief, so no
one can get advantage of his own fraud, considering aspect
such the learned District Judge, Cumilla dismissed the
probate case summarily, but the High Court Division
without considering the legal perspective of the matter
allowed the appeal. The learned Advocate also submits that
it reveals from the face of the plaint (petition) of the
probate case it does not contain the essence required by
law for filing a probate case to confirm a will executed
by a Muslim, so apparently the probate case is not
maintainable, accordingly the probate case should be
burried at its inception; so no further time is consumed
in a fruitless litigation and in such a situation the
court may invoke it inherent power by taking re course of
section 151 of the Code of Civil Procedure, accordingly
the dismissal order passed by the District Judge is just
and proper but the High Court Division without considering
the legal proposition allowed the appeal by the impugned 5
judgment and order which has occasioned miscarriage of
justice.
Mr. Md. Nurul Amin, learned Senior Advocate,
appearing for the respondents makes submissions supporting
the impugned judgment and order of the High Court
Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division as well as
the judgment and order of learned District Judge and other
materials as placed before us.
It transpires for the judgment and order passed by
the learned District Judge, Cumilla, that he having
considered the relevant provisions of law, i.e. section
57, 58 and 213 of the Succession Act, 1925 came to a
definite finding that the said provision shall not apply
to Will to the property of Mohammedan, rather those
provisions are applicable only to the property of Hindu,
Buddhist, Sikh or Jaina. However, the High Court Division
without adverting to the said legal finding of the learned
District Judge, most erroneously passed the impugned
judgment holding that the controversy between the parties
can only be resolved by taking evidence.
The provision of sections 57, 58 and 213 of the
Succession Act, 1925 runs as follows:
“57. The provisions of this Part which are set out in Schedule III
shall, subject to the restrictions and modifications specified therein,
apply-
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina, on or after the first day of September, 1870, within the
territories of Bangladesh and 6
(b) to all such wills and codicils made outside those territories and
limits so far as relates to immoveable property situate within
those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina on or after the 1st day of January, 1927, to which those
provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.
58. (1) The provisions of this Part shall not apply to testamentary
succession to the Property of any Muslim nor, save as provided by
section 57, to testamentary succession to the property of any Hindu,
Buddhist, Sikh or Jaina; nor shall they apply to any will made before the
first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for
the time being in force, the provisions of this Part shall
constitute the law of Bangladesh applicable to all cases of
testamentary succession.
213. (1) No right as executor or legatee can be established in any
Court of Justice, unless a Court of competent jurisdiction in Bangladesh
has granted probate of the will under which the right is claimed, or has
granted letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by
Muslims, and shall only apply in the case of wills made by any Hindu,
Buddhist, Sikh or Jaina where such wills are of the classes specified in
clauses (a) and (b) of section 57.” (Underlines supplied).
Section 117 of the Mohammedan Law provides as follows:
117. Bequests to heirs A bequest to an heir is not valid unless the
other heirs also consent to the bequest after the death of the testator. Any
single heir may consent so as to bind his own share.
A bequest to an heir, either in whole or in part, is invalid, unless
consented to by other heir or heirs and whosoever consents, the bequest
is valid to that extent only and binds his or her share. Neither inaction
nor silence can be the basis of implied consent.
Having considered the above provisions of law as well
as the facts and circumstances of the present case, we
have no hesitation to concur with the findings of the 7
learned District Judge, Cumilla, that the alleged probate
case filed by the respondent is not maintainable.
Further, it also transpires from the plain reading of
the plaint of the probate case that the respondent in fact
seeks partition of his paternal property in the garb of
issuing probate in favour of him.
It is now well settled that when on the face of the
plaint, it is found that the suit is barred by any law or
is foredoomed and if it is allowed to be proceeded with,
it will amount to an abuse of the process of the Court,
the Court is empowered to reject the plaint in exercising
its inherent power.
When a suit is barred by any law, then question of
taking evidence is redundant.
In the case of Abdul Jalil and others vs. Islamic Bank Bangladesh Ltd.
and others, reported in 53 DLR (AD), 12 this Division has held
that “......as the ultimate result of the suit is as clear as daylight such a suit
should be burried at its inception so that no further time is consumed in a fruitless
litigation.” Similar view also has been expressed by this
Division in the cases of Guiness Peat (Trading) Limited Vs. Md. Fazlur
Rahman, reported in 44 DLR (AD), 242; Rasheda Begum vs. M.M. Nurussafa
and others, reported in 24 BLD (AD) 223.
The High Court Division without considering the
pertinent legal issue that the provisions of Succession
Act and Mohammedan law the probate case is not
maintainable, passed the impugned judgment simply holding
that without taking evidence, the dispute between the
parties cannot be resolved, and as such committed serious
error of law and the impugned judgment is liable to be set
aside. 8
Accordingly, the appeal is allowed, without, any
order as to costs.
The judgment and order dated 29.06.2022 passed by the
High Court Division in F.M.A. No.309 of 2021 is set aside.
C. J.
J.
J.
J.
B.S./B.R./*Words-2001*
|
=1=
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Obaidul Hassan, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Abu Zafor Siddique
CRIMINAL PETITION FOR LEAVE TO APPEAL NO.2835 OF 2023
(From the order dated 08.11.2023 passed by the High Court Division in
Criminal Miscellaneous Case No.64691 of 2023)
The State ……..….Petitioner
-Versus-
Zainul Abedin @ Advocate Zainul Abedin
and another
...…..…Respondents
For the petitioner : Mr. A.M. Amin Uddin, Attorney General, with
Mr. Mohammad Saiful Islam, Assistant
Attorney General, instructed by Mr. Md. Helal
Amin, Advocate-on-Record.
For respondent
No.1
:
Mr. Sagir Hossain, Advocate, instructed by Mr.
Md. Zahirul Islam, Advocate-on-Record.
For respondent
No.2
: Not represented.
Date of hearing : The 06th day of March, 2024.
O R D E R
The petitioner has filed the instant Criminal Petition for Leave
to Appeal against the impugned order dated 08.11.2023 passed by the
High Court Division in Criminal Miscellaneous Case No.64691 of
2023.
It appears from the order dated 08.11.2023 passed by the High
Court Division that the respondents have been enlarged on
anticipatory bail till submission of the police report subject to
furnishing bail bond to the satisfaction of the learned Chief
Metropolitan Magistrate, Dhaka.
=2=
Mr. A.M. Amin Uddin, learned Attorney General appearing on
behalf of the petitioner-State submits that the anticipatory bail
granted by the High Court Division till filling of the police report is
against the principle as enunciated in the case of Durnity Daman
Commission and another vs. Dr. Khandaker Mosharraf Hossain and
another reported in 66 DLR (AD) 92.
We have gone through the petition and the decision cited by
the learned Attorney General reported in 66 DLR (AD) 92. We have
also taken into consideration of the judgment and order given in the
case of State vs. Md. Kabir Biswas reported in 75 DLR (AD) 60, wherein
it has been held that “It is pertinent to mention here that the latitude
given to the High Court Division while exercising the discretionary power of
granting anticipatory bail must be guided by the principles laid down by the
Appellate Division. But the High Court Division passed the impugned
orders overstepping its limits. We have given our anxious consideration to
such unwarranted attitude of the High Court Division. Such derogatory
trend of the High Court Division shall leave an adverse impression upon the
criminal to get an upper hand through the hands of law. In such backdrop,
our considered view is that the High Court Division and all other courts are
bound to follow the law and propositions enunciated by this Division in the
case of State vs. Professor Dr. Morshed Hasan Khan and others (supra). We
also direct the High Court Division to refrain from unscrupulous exercise of
the power of granting anticipatory bail.” and at the same time, we are
not unaware about the decision given in the case of State vs. Abdul
Wahad Shah Chowdhury reported in 51 DLR (AD)242. The principle as
=3=
enunciated in all the cases mentioned above is that the
person/persons should not be allowed to remain on anticipatory bail
for an indefinite period. Thus, the High Court Division failed to
consider the principle as enunciated in the aforesaid decisions while
enlarging the respondents on anticipatory bail till filing of the police
report. Because sometime investigating agencies require more time to
submit their report for the purpose of proper investigation. In the
circumstances, the accused is not entitled to enjoy the privilege of
anticipatory bail till filing of the police report. Considering the above,
we are inclined to modify the order dated 08.11.2023 passed by the
High Court Division.
Accordingly, the order dated 08.11.2023 passed by the High
Court Division is modified as under:
“The respondents shall remain on bail for a period of 8(eight)
weeks from date; and, thereafter, they shall surrender before
the Court of Chief Metropolitan Magistrate, Dhaka and in case
of surrender the concerned Court below shall consider the
prayer for bail, if any, considering that they did not misuse the
privilege of bail.”
With the above, the Criminal Petition for Leave to Appeal is
disposed of.
C.J.
J.
J.
The 06th March, 2024
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.519 OF 2023
(From the judgment and order dated 06.11.2022
passed by the High Court Division in Writ
Petition No.3351 of 2022)
Rukhsana Ahmed Ruxi and
others
… Petitioners
=VERSUS=
Bangladesh, represe nted by
the Secretary, (Secondary and
Higher Education), Ministry
of Education, Bangladesh
Secretariat, Ramna, Dhaka and
others
…… Respondents
For the Petitioners
:Mr. Probir Neogi, Senior
Advocate with Mr. Tanjib-
ul-Alam, Senior Advocate
and Mr. Mohamma d Bakir
Uddin Bhuiyan, Advocate
instructed by Mr. Zainul
Abedin, Advocate-on-
Record.
For the Respondent
Nos.1-4
:Mr. Mohammad Saiful
Alam, Assistant Attorney
General, instructed by
Mr. Haridas Paul ,
Advocate-on-Record.
For the respondent
Nos.5-6
:Mr. Mo tahar Hossain,
Senior Advocate
instructed by Mr. 2
Mohammad Ali Azam,
Advocate-on-Record
For the respondent
Nos.7-8
:Not represented
Date of hearing and
judgment on
:The 7th December, 2023
J U D G M E N T
Md. Ashfaqul Islam, J:
This Civil Petition for Leave to Appeal is
directed against the judgment and order dated
06.11.2022 passed by the High Court Division in
Writ Petition No.3351 of 2022 discharging the
Rule with observations.
The writ petitioners who are teachers of
Lalmatia Mohila Colleg e whose salary was
degraded after the nationalization of the
College filed the writ petition being Writ
Petition No.3351 of 2022 before the High Court
Division challenging the arbitrary degradation
of the present position of the writ petitioner 3
Nos.1, 4, 5 , 7, 9, 11, 12, 15, 16, 23 and 26
from the post of Associate Professor to the
post of Lecture r and the present position of
the writ petitioner Nos.2, 3, 6, 10, 13, 14,
17, 18, 19, 20, 21, 22 and 24 from the post of
Assistant Professors to the post of Lectu rers
and the position of the writ petitioner No.8
from the post of Associate Professor to the
post of Demonstrator of Lalmatia Mohila
College, now Lalmatia Government Mohila College
which is evident from Annexure -M issued under
signature of the writ respon dent No.6,
Principal, Lalmatia Government Mohila College,
Lalmatia, Mohammadpur, Dh aka-1207 and thereby
reducing the existing monthly salaries of the
writ petitioners without any written
communication to the writ petitioners as 4
evident from the representat ions made by the
writ petitioners.
The case, made out in the writ petition
before the High Court Division, in brief, is as
follows:
The writ petitioner Nos.1 -7 and 9 -26
obtained Bachelor degree with Honours and
Masters Degree from different universities and
thus having requisite qualifications got
appointment as Lecturer on different dates in
different departments of the Lalmatia Mohila
College, Lalmatia, Dhaka (the College). The
writ petitioner No.8 also got an appointment
letter as Demonstrator (Physics) on 16.07.2021
in the said College. Accordingly, joining the
said College, the writ petitioners have been
discharging their respective duties. The writ 5
petitioner Nos.1, 4, 5, 7, 9, 11, 12, 15, 16,
23 and 26 subsequently got promotion on
different da tes to the post of Assistant
Professor and then to the post of Associate
Professor. The writ petitioner Nos.2, 3, 6, 10,
13, 14, 17, 18, 19, 20, 21, 22 and 24 on also
got promotion to the post of Assistant
Professor on different dates and the writ
petitioner No.8 (initially Demonstrator) got
promotion to the post of Lecturer and then to
the post of Assistant Professor.
Lalmatia Mohila College was affiliated
under the National University established under
the National University Act, 1992 and
recognized by the Directorate of Secondary &
Higher Education, Dhaka and the services of the
writ petitioners were regulated under the Non - 6
Government Degree College Teachers Service
Regulations, 1994 (in short, the Regulations,
1994). All the writ petitioners are the regular
and permanent teachers of the Lalmatia Mohila
College and the Governing Body of the College
took decision on 23 -12-2016 to pay salary as
per National Pay Scale , 2015 and the writ
petitioners were receiving their salary as per
National Pay Scale, 2015.
In the year 2019 , the nationalization
process of Lalmatia Mohila College was started
under the “plL¡l£ LmS ¢nrL J LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2018” (in
short, the Absorption Rules, 2018) which was
framed repealing the earlier Rules, namely,
“S¡a£uLleL«a LmS ¢nrL J A -¢nrL LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2000 ” (in
short, the Absorption Rules, 2000). 7
The College has been nationalized by the
Ministry of Education following the
Notification contained in Memo No.37.00.0000
.370.39.001.18.03 dated 04.01.2022 with effect
from 31.12.2021, but the service of teachers
and employees of the College is under process
for absorption.
In the circumstances, as per office order
issued by the Ministry of Education dated
27.08.2018, the financial transaction including
all other matters of the College are being done
with the joint signatures of the Deputy
Commissioner, Dhaka and the Principal till
completion of the process of absorption of
service of the teachers and employees.
Although the writ petitioners have been
drawing their sala ries according to their 8
designated posts and entitlement, but the writ
respondents without following the existing
provisions of law proposed and compelled all
the teachers (Assistant Professor and Associate
Professor) to receive salary in the post of
Lecturer and to the writ petitioner No.8 in the
post of Demonstrator from the month of January,
2022. In this backdrop , the writ petitioners
finding no other alternative efficacious
remedies moved the abovementioned writ petition
before the High Court Division and obtained the
Rule.
The writ -respondent No.3, the Director
General, Directorate of Secondary and Higher
Secondary Education and the writ respondent
No.6, Principal, Lalmatia Government Mohila
College, Lalmatia, Mohammadpur, Dhaka contested 9
the Rule by f iling separate affidavit-in-
oppositions.
A Division Bench of the High Court
Division upon hearing the parties discharged
the Rule by the impugned judgment and order
dated 06.11.2022. The High Court Division
observed that, the writ petitioners are
eligible for absorption only to the post of
Lecturer and Demonstrator (writ petitioner
No.8) and after absorption, since there is
scope for promotion in accordance with Rule 12
of the Rules, 2018 in the vacant post of
absorbed teachers, the writ respondents shal l
consider the writ petitioners’ promotion in
those promoted posts subject to vacancy.
Being aggrieved, by the impugned judgment
and order of the High Court Division, the writ 10
petitioners as petitioner Nos.1-20 herein filed
the instant civil Petition f or leave to appeal
before this Division.
Mr. Probir Neogi , the learned Senior
Advocate appearing on behalf of the petitioners
submits that, from the list of writ petitioners
(11 Associate Professors, 14 Assistants
Professors and 1 Lecturer) along with t heir
particulars embodied in the impugned judgment
and order it is evident that, the writ
petitioner Nos.1 -2, 4 -12,15-17,20-24 and 26
were appointed in between 1995 to 2004 and the
writ petitioner Nos.3,13 -14, and 18 -19 were
appointed in the service in the year 2008 and
the writ petitioner No.25 was appointed in the
year 2011 and the High Court Division relying
on the circular dated 17.04.2015 (actual date 11
would be 17.04.2005) issued on the basis of the
service Regulations, 1994, discharged the Rule
although the aforesaid circular dated
17.04.2005 was abolished by issuance of new
service regulation namely, “ S¡a£u ¢hnÄ¢hcÉ¡m®ul A¢di¥š²
®hplL¡l£ LmS ¢nrLcl Q¡L¥l£l naÑ¡hm£ ®l…mne, 2015 ”(in short,
the Service Regulations, 2015) wherein no such
requirement of approval from syndicate for
appointment/promotion of Assistant Professor,
Associate Professor and Professor in National
University affiliated degree college is
stipulated and thus the High Court Division
committed serious illegality in discharging the
rule relying on an abolished circular and, as
such, the impugned judgment and order of the
High Court Division is liable to be set aside. 12
He further submits that, the writ
petitioner No.1 got promotion as Assistant
Professor on 13.11.2002, the writ petitioner
No.5 got promotion as Assistant Professor on
14.11.2002, the writ petitioner No.7 got
promotion as Assistant Professor on 06.10.2003,
the writ petitioner No.9 got promotion as
Assistant Professor on 14.11.2002, the writ
petitioner No.23 got promotion as As sistant
Professor on 14.01.2002 and the writ petitioner
No.26 got promotion as Assistant Professor on
06.10.2003 and admittedly the circular in
question was issued on 17.04.2005 and it is not
the contention of any of the contesting writ
respondents that th e promotion of the writ
petitioners are defective due to the clause
No.(vii) and (ix) of the circular dated 13
17.04.2005, but upon making third case, the
High Court Division relying on the abolished
circular dated 17.04.2005, discharged the Rule
by the impugned judgment and order in wholesale
manner and thus committed gross illegality and
therefore, the impugned judgment and order of
the High Court Division is liable to be set
aside.
He also submits that, from the list of
writ petitioners along with their pa rticulars
embodied in the impugned judgment and order it
further appears that, the writ petitioner No.2
got promotion as an Assistant Professor on
25.04.2016, the writ petitioner No.3 got
promotion as an Assistant Professor on
09.04.2016, the writ petitio ner No.13 got
promotion as an Assistant Professor on 14
07.04.2016, the writ petitioner No.14 got
promotion as an Assistant Professor on
25.04.2016, the writ petitioner No.18 got
promotion as an Assistant Professor on
09.04.2016, the writ petitioner No.19 got
promotion as an Assistant Professor on
09.04.2016, the writ petitioner No.21 got
promotion as an Assistant Professor on
25.04.2016 and the writ petitioner No.22 got
promotion as an Assistant Professor on
25.04.2016 following the provisions of existing
law i.e. the said Service Regulations, 2015
which came into force on 13.06.2015 in place of
earlier Service Regulations, 1994 and
consequently, the circular under reference
No.01(162) S¡a£x¢hx/fËn¡x 92/(77)/1 dated 17.04.2005 was
also abolished and the High C ourt Division 15
relying on the aforesaid abolished circular has
taken away the vested right of the aforesaid
writ petitioners by passing the impugned
judgment and order dated 06.11.2022 and thus
committed serious illegality.
Next he further submits that, approval for
nationalization of Lalmatia Mohila College and
embargo on appointment and on promotion came on
26.02.2019 and all the writ petitioners were
appointed and got promotion in their respective
posts in the aforesaid college before the date
of embargo and subsequently the college was
nationalized vide memo dated 04.01.2022 with
effect from 30.12.2021 and one Mr. Md.
Enayetullah without having any requisite
qualification got an appointment letter as an
Assistant Professor in the aforesaid college on 16
the date of putting embargo that is on
26.02.2019 and he is receiving higher salary
holding the post of Assistant Professor and
thus the writ respondents have shown utter
discriminatory treatments towards the writ
petitioners and the High Court Division allowed
the aforesaid discrimination in passing the
impugned judgment and order and the same is
liable to be set aside.
Finally, he submits that, t he writ
petitioners are the regular teachers of
Lalmatia Mohila College, now Lalmatia
Government Mohila College and the petitioners
were appointed and promoted in their respective
posts following the prevailing Rules and
Regulations and they have no disqualifications
and they are to be absorbed in the Lalmatia 17
Government Mohila College as per provision of
Rule 4 read with Rules 5 and 6 of the “ plL¡¢lL«a
LmS ¢nrL J LjÑQ¡l£ Bš£LlZ ¢h¢dj¡m¡, 2018 ”, but the High
Court Division fell into error in interpreting
the provision of the “plL¡¢lL«a LmS ¢nrL J LjÑQ¡l£ Bš£LlZ
¢h¢dj¡m¡, 2018” in passing the impugned judgment and
order dated 06.11.2022 and thus committed
illegality.
On the other hand, Mr. Mohammad Saiful
Alam, the learned Assistant Attorney General
appearing on behalf of the respondent No s.1-4
made submissions in support of the impugned
judgment and order of the High Court Division.
Mr. Motahar Hossain , the learned Senior
Advocate appearing on behalf of the respondent
Nos.5-6 s ubmits that, earlier the writ
petitioners executed undertaking not to claim 18
Government f und by way of their promotion.
Moreover, out of 118 teachers except the few
writ petitioners, all other teachers have been
receiving the salary in the post of Lecturer
and even the writ petitioner Nos.9 and 23 being
MPO enlisted in the post of Lecturer, ar e
receiving salary under the MPO scheme . Hence,
the High Court Division rightly discharged the
Rule and passed the impugned judgment and order
and therefore, he prays for dismissal the
instant leave petition.
We have heard the learned senior Advocates
of both sides as well as the learned Assistant
Attorney General. Perused the impugned judgment
of the High Court Division and other papers on
record. 19
The High Court Division at the outset
initiated the question of maintainability of
the writ petition and upon plausible reasons
decided that, the writ petition is
maintainable. But, the writ petitioners’ claim
of absorption in the nationalized college has
not been accepted by the High Court Division.
Accordingly, the High Court Division found
that, the writ r espondent Nos.4 , Deputy
Commissioner, Dhaka and 6, Principal, Lalmatia
Government Mohila College , Lalmatia,
Mohammadpur, Dhaka-1207 rightly took step s to
pay the salary to the writ petitioners at the
scale of lecturer from the date of
nationalization in ac cordance with Rule 4 of
the Absorption Rules, 2018. The High Court
Division also held that, the two posts 20
(Professor and Associate professor) have to be
incorporated in Rules 2(9) and 5 of the
absorption Rules, 2018. The writ petitioners
are eligible only for absorption to the post of
Lecturer and Demonstrator (petitioner No.8) and
after absorption there is scope for promotion
in accordance with the rule 12 of the Rules,
2018. For the sake of better understanding let
us reproduce the said Rules verbatim below:
2(9)z “plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£ ” AbÑ ®L¡e¡
plL¡¢lL«a LmS AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL h¡ fËi¡oL fc
LjÑla Hje ®L¡e¡ ¢nrL h¡ ®L¡e¡ fc LjÑla Hje ®L¡e¡ LjÑQ¡l£,
¢k¢e j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ¢ehÑ¡¢Qa ®hplL¡¢l LmS
¢eu¡Nl Efl ¢eod¡‘ ¡ Bl¡f L¢lh¡l a¡¢lMl f§hÑ, ®hplL¡¢l
LmSl SeÉ fËk¡SÉ ¢eu¡N pwœ²¡¿¹ Bcn, ¢ecÑn h¡ e£¢aj¡m¡l
Ad£e, ¢eu¡NfË¡ç qCu¡ AhÉ¡qai¡h X~š² LmS LjÑla BRe;
21
4z fc ÙÛ¡e¡¿¹l - j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ®L¡e¡ ¢ehÑ¡¢Qa
®hplL¡¢l LmS ¢eu¡Nl Efl ¢eod¡‘ ¡ Bl¡f L¢lh¡l a¡¢lM
fkÑ¿¹, ®hplL¡¢l LmSl SeÉ fËk¡SÉ ¢eu¡N pwœ²¡¿¹ Bcn, ¢ecÑn
h¡ e£¢aj¡m¡ Ae¤k¡u£, pw¢nÔø LmSl ¢eu¡NfË¡ç ¢nrL J
LjÑQ¡l£NZl ¢hcÉj¡e fcpj§q, plL¡¢lLlZl a¡¢lM qCa Eš²
plL¡¢lL«a LmSl fc ¢qp¡h ÙÛ¡e¡¿¹¢la qChz
5z AÙÛ¡u£i¡h ¢eu¡Nz- (1) ¢eu¡NL¡l£ LaѪfr, j¡dÉ¢jL J EµQ ¢nr¡
A¢dcçl LaѪL ®L¡e¡ ¢ehÑ¡¢Qa ®hplL¡¢l LmS ¢eu¡Nl Efl
¢eod¡‘¡ Bl¡fl a¡¢lM pw¢nÔø LmSl -
(L) AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL J fËi¡oL fc
LjÑla fËu¡Se£u ®k¡NÉa¡pÇfæ ¢nrLNZL, kb¡œ²j,
AdÉr (ee -LÉ¡X¡l), Ef¡ dÉr (ee -LÉ¡X¡l), pqL¡l£
AdÉ¡fL (ee-LÉ¡X¡l) J fËi¡oL (ee -LÉ¡X¡l) ¢qp¡h,
Hhw
(M) LjÑQ¡l£NZL ü-ü fc, - 22
Eš² LmS plL¡¢lLlZl a¡¢lM qCa, ¢h¢d 6
Hl ¢hd¡e p¡fr, Bš£LlZl EŸnÉ AÙÛ¡u£i¡h
¢eu¡N fËc¡e L¢lhz
(2) plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£NZL ÙÛ¡e¡ ¿¹¢la
fc hÉa£a AeÉ ®L¡e¡ fc AÙÛ¡u£i¡h ¢eu¡N fËc¡e Ll¡
k¡Ch e¡z
hÉ¡MÉz - HC ¢h¢da E¢õ¢Ma “fËu¡Se£u ®k¡NÉa¡ ” h¢ma
®hplL¡¢l LmSl ¢nrL fc ¢eu¡N m¡il SeÉ fËu¡Se£u
®k¡NÉa¡L h¤T¡Chz
12z fc¡æ¢a z- plL¡¢lL«a LmSl ¢nrL J LjÑQ¡l£NZl
fc¡æ¢ak¡NÉ ÙÛ¡e¡¿¹¢la fcpj§q pw¢nÔø LmS LjÑla Bš£Lªa ¢nrL
J LjÑQ¡l£NZ fc¡æ¢al SeÉ ¢hh¢Qa qChe Hhw Eš² ®rœ pw¢nÔø
LmSl plL¡¢lLlZl AhÉh¢qa f§hÑl, ®rœja, ¢hou h¡ fc¢i¢šL
®SÉùa¡l ¢i¢ša, plL¡l LaѪL ¢edÑ¡¢la naÑ f§lZ p¡fr, fc¡æ¢a
fËc¡e Ll¡ k¡Chz 23
The High Court Division relying on the
circular dated 17.04.2005 issued on the basis
of the Service Regulations, 1994 discharged the
Rule. But, unfortunately we have found that,
the circular on which the High Court Division
relied was abolished by that time with th e
introduction of the new service regulations
wherein no such requirement of approval from
syndicate for appointment/promotion of the
Assistant Professor, Associate Professor and
Professor in the National University affiliated
degree College has been stipulated.
Mr. Probir Neogi, the learned Senior
Counsel rightly contended that, it is not the
contention of the writ respondents that, the
promotion of the writ petitioners are defective
due to the clause Nos. (vii) and (ix) of the 24
Circular dated 17. 04.2005, but, upon making
third case, the High Court Division relying on
that abolished circular discharged the Rule
which is not tenable in the eye of law. This
submission stands with all force. He further
went on saying that, the respondents have shown
utter discriminatory treatments towards the
writ petitioners and the High Court Division
affixed permanent seal in the said deed done
deliberately in passing the impugned judgment
and order and thus committed illegality.
Palpably, the High Court Division ignored
the important aspects of the prolonged services
rendered by the petitioners and the arbitrary
degradation of their post and salary expressly
flouting fundamental right s of the writ 25
petitioners as guaranteed under Articles 27,
29, 31 and 40 of the Constitution.
The writ petitioners are the regular
teachers of the Lalmatia M ohila College, now
Lalmatia Government M oahila College and they
were appointed and promoted in their respective
posts in accordance with the prevailing Rules
and Regulations and they have no
disqualifications to be absorbed in the
Lalmatia Government Mohila College as per
provisions of Rule 4 read with rule 5 and 6 of
the Rules, 2018 as discussed above , but the
High Court Division fell into error in
interpreting the provision s of the same Rules
and came into a wrong decision in passing the
judgment and order impugned against. 26
The submissions of the respondents as
aforesaid merit no substance being fallacious
and bereft of any consideration whatsoever.
With all the vehemence and authority we
are declaring that, the petitioners herein
shall have to be treated in accordance with the
new law as in the manner all of their
colleagues have been treated without any
discrimination.
The petitioner Nos.8, 9, 17, 18 and 20
submitted relevant documents by an application
for acceptance of additional paper book dated
23-11-2023 and they have no disqualification to
be absorbed in the post of Assistant Professors
in Lalmatia Government Mohila College, Dhaka.
Accordingly, this petition is di sposed of.
The impugned judgment and order of the High 27
Court Division is set aside. The respondents
are directed to conclude the nationalization
process of services of the petitioners as a
Teachers of Lalmatia Government Mohila College,
Lalmatia, Mohammadpur, Dhaka in accordance with
law in the manner as it has already been done
in case of their colleagues within 3(three)
months.
J.
J.
J.
J.
J.
The 7th December, 2023_
Hamid/B.R/*Words 2,998*
28
|
1
PRESENT
Mr. Justice Borhanuddin,
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1062 OF 2018
(From the judgment and order dated the 24th day of August, 2017 passed by the
High Court Division in Writ Petition No.4716 of 2017).
Government of Bangladesh and
others
: . . . Petitioners
-Versus-
Sonia Khatun and others : . . . Respondents
For the Petitioners
: Mr. Sk. Md. Morshed, Additional
Attorney General, instructed by
Ms. Mahmuda Begum,
Advocate-on-Record
For Respondents :
Mr. Mirza Salah Uddin Ahmed,
instructed by Mr. Mohammad Abdul
Hai, Advocate-on-Record
Date of hearing and judgment : The 28th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: Delay of 186 days in filing this
civil petition for leave to appeal is condoned.
This civil petition for leave to appeal is directed
against the judgment and order dated the 24.08.2017 passed by
the High Court Division in Writ Petition No.4716 of 2017
making the Rule absolute.
The relevant facts leading to the filing of the present
leave petition are that the present respondents-writ
petitioners having required qualifications, applied for the
post of Assistant Teachers in different primary schools.
Accordingly, through interview and examination process, they 2
were appointed as Assistant Teachers of those schools. The
particulars of their appointment and joining in the
Registered Non-Government Primary Schools are given in the
writ petition. In the writ petition it was stated that, the
schools of the writ petitioners were established in
accordance with the provisions under the "‡emiKvix D‡`¨v‡M cÖv_wgK we`¨vjq
¯’vcb, cwiPvjbv I wbe܇bi kZ© bxwZgvjv' as published by the Ministry of
Primary and Mass Education as well as the Rules and
notifications made by the Government time to time. Pursuant
to the decision of the Government, the Gazette notification
dated 17.01.2013 which was issued for scrutiny of Non-
Government Primary schools and Teachers for nationalization.
Thereafter, the Government, vide Gazette Notification dated
08.10.2013, as published in the Gazette on 27 October, 2013,
nationalized 429 Registered Non-Government Primary, Schools
as Government Schools with effect from 01.01.2013. In such
process, the schools of the writ petitioners were also
nationalized being serial No. 296. 297 and 298 in the said
Gazette. Accordingly, the Government, through Ministry of
Primary and Mass Education, started scrutiny process for
selecting the teachers of those Primary Schools for
absorption under the revenue head. In such process, a list
was published with the names of the writ petitioners and
others on 30.06.2016 asking the concerned to send amendments,
if any, to the said list. Accordingly, after scrutiny, the
concerned District Education Officer, Mirpur, Dhaka sent a
list of the writ petitioners along with others on 28.07.2016
for their absorption under revenue head as against Bawniabadh
A-Block Government Primary School, Mirpur, Dhaka, Bawniabad
E-Block Government Primary School Mirpur, Dhaka and Sheikh 3
Kamal Government Primary School Mirpur, Dhaka. However, the
Ministry, vide Office Order dated 01.12.2016, appointed some
of the teachers from the said list as against the said
schools excluding the names of the writ petitioners without
assigning any reason. Under such circumstances, they moved
before the High Court Division by filing writ petition.
The Rule was opposed by writ respondent No.6 though no
affidavit-in-opposition had been filed.
In due course after hearing and considering the
materials on record the High Court Division made the Rule
Nisi absolute directing the writ respondents to appoint the
writ petitioners as Assistant Teachers as against their
respective primary schools within a period of 30 (thirty)
days from receipt of the copy of this judgment riving their
service and other benefits with effect from 01.01.2013.
Being aggrieved by the said judgment and order, the writ
respondents have preferred this civil petition for leave to
appeal before this Division.
Mr. Sk. Mohammad Morshed, learned Additional Attorney
General appearing on behalf of the leave petitioners having
placed the notification dated 17.01.2013 in regard to the
"‡emiKvwi cÖv_wgK we`¨vjq RvZxqKiY Ges Kg©iZ wkÿK‡`i PvKzwi RvZxqKi‡Yi wm×všÍ' submits that
in view of the said notification there is no scope to appoint
the writ petitioners-respondents as Assistant Teachers as
against their respective primary schools as they are the
excess teachers and in the said schools as per the Nitimala
one Head Master and 3(three) other teachers have already been
appointed. 4
Mr. Mirza Salah Uddin Ahmed, learned Advocate appearing
for the respondents makes submissions in support of the
impugned judgment and order passed the High Court Division.
We have considered the submissions of the learned
Advocates for the parties concerned, perused the impugned
judgment and order of the High Court Division and other
connected papers on record.
“Clause 4.2” of the notification dated 07.01.2013
relating to the "‡emiKvwi cÖv_wgK we`¨vjq RvZxqKiY Ges Kg©iZ wkÿK‡`i PvKzix miKvwiKi‡Yi
wm×všÍ' runs as follows:
4 . 2 w k ÿ K m s µ v š Í t
""(K) GgwcIfz³ mKj wkÿ‡Ki PvKzix miKvwiKi‡Yi Dchy³ we‡ewPZ nB‡e;
(L) we`¨vj‡q Kg©iZ wkÿK‡`i PvKzix‡Z †hvM`vbKvjxb mg‡q ev Zvwi‡L cÖ‡hvR¨/cÖ‡qvRbxq
†hvM¨Zv _vwK‡Z nB‡e| Z‡e h_vh_ cÖwµqvq wb‡qvMK…Z nBqv _vwK‡j PvKzix miKvwiKi‡bi
cieZx© 3 erm‡ii g‡a¨ wba©vwiZ ‡hvM¨Zv AR©‡bi k‡Z© cÖ‡qvRbxq †hvM¨Zvwenxb wkÿK‡KI
we‡ePbv Kiv hvB‡e;
(M) BZtc~‡e© GgwcIfy³ nBqv‡Q wKš‘ k„•LjvRwbZ wKsev cªkvmwbK A_ev Ab¨wea Kvi‡Y eZ©gv‡b
GgwcI ¯’wMZ iwnqv‡Q GBiƒc wkÿK‡KI we‡ePbv Kiv hvB‡e;
(N) we`¨vj‡q mvaviYfv‡e 1 Rb cÖavb wkÿKmn 4 Rb wkÿ‡Ki c` _vwK‡e| Z‡e 400 R‡bi
AwaK QvÎ-QvÎx Av‡Q Ggb we`¨vj‡q 5g wkÿ‡Ki c` m„wRZ _vwK‡j Zvnv we‡ePbv Kiv
hvB‡e;
(O) cÖ‡qvRbxq †hvM¨Zv Ges wba©vwiZ c×wZ‡Z wb‡qvMK…Z nBqv _vwK‡j wbav©wiZ eq‡mi Kg
A_ev †ekx eq‡m †hvM`vbKvix wkÿK‡K cÖ‡qvRbxq †hvM¨Zv _vKv I wbav©wiZ c×wZ‡Z
wb‡qvMK…Z nIqv mv‡c‡ÿ we‡ePbv Kiv hvB‡e|Ó(Underlines supplied).
In view of the provision of clause 4.2 it is abundantly
clear that the approved limit of making appointment of the
teachers in a nationalized school were 4(four) and one of
which will be Headmaster; and one more teacher would be
considered if number of students are more than 400. Here the
writ petitioners were all beyond the approved limit. The High
Court Division without going into the depth of the position
and status of the writ petitioners made the Rule absolute
without considering the existing organogram of the 5
nationalized school, i.e. these primary schools cannot be
made over 4(four) persons as teachers.
Further, the issue involved in this case has already
been decided in Civil Petition for Leave to Appeal No. 4234
of 2018.
In view of the above, we are inclined to interfere with
the impugned judgment and order; however, since, we have
heard both the parties at length, we are inclined to dispose
of the civil petition for leave to appeal without granting
any leave to avoid further delay in disposing of the case.
Accordingly, the civil petition for leave to appeal is
disposed of. The impugned judgment and order dated 24.08.2017
passed by the High Court Division is set aside.
J.
J.
J.
J.
J.
B.S./B.R./*Words-1,142*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 173 OF 2016
(From the judgment and order dated 5th of March, 2012 passed by this Division in Civil
Petition for Leave to Appeal No. 15 of 2011).
Government of Bangladesh, represented by the
Secretary, Ministry of Communication, (at
present Ministry of Railway), Bangladesh
Secretariat, Ramna, Dhaka
Appellant
-Versus-
Sher-E-Bangla Market Dokander Bohumukhi
Samabay Samity Limited, represented by its
Secretary, Abdur Rashid Howlader and others
Respondents
For the Appellant :
Mr. A.M. Amin Uddin, Attorney General with Mr.
Sk. Md. Morshed, Additional Attorney General and
Mr. Mohammad Saiful Alam, Assistant Attorney
General, instructed by Mr. Haridas Paul,
Advocate-on-Record
For Respondent No.1 :
Mr. Probir Neogi, Senior Advocate, instructed by
Mr. Zainul Abedin and Mr. Syed Mahbubar
Rahman, Advocates-on-Record
For Respondent No.2-7 :
Not represented
Date of hearing: The 28th day of November, 2023
Date of judgment : The 7th day of December, 2023
JUDGMENT
M. Enayetur Rahim, J: This civil appeal, by leave, is directed
against the judgement and order dated 05.03.2012 passed by
this Division in Civil Petition for Leave to Appeal No.15 of
2011 dismissing the petition.
Facts relevant for disposal of this appeal are that the
respondent No.l Sher-e-Bangla Dokander Bohumukhi Samobay
Samity Limited (herein after referred to as writ petitioner
2
Samity) filed Writ Petition No.1728 of 2010 before the High
Court Division seeking a direction upon the present
appellant and writ respondent Nos. 2-7 to execute and
register a sale deed in respect of 2.575 acres of land of
Mouza Brahman Chiran of C.S. Plot Nos. 130 and 131 Police
Station-Sabujbag, District-Dhaka and to hand over physical
possession of the same in its favour.
It's claim is that it approached the government for
allotting the said plots for establishing a market for the
purpose of rehabilitation of eight members of the hawker
Samity. Pursuant to its application, the government
initiated proceeding and ultimately the Land Allotment
Committee of the Bangladesh Railway took decision to
transfer of the land in question fixing its price at
Tk.8,28,03,704.25 (taka eight crore twenty eight lacs three
thousand seven hundred four and twenty five paisa) and,
thereafter, the concerned authority raised the value at Tk.
18,24,00,141.56 in (taka eighteen crore twenty four lacs one
hundred forty one and fifty six paisa). There was dispute
regarding the ownership of land between the different
Ministries. Subsequently, the Railway department received
part payment on different occasions and ultimately the writ
petitioner Samity executed an Angikarnama on 03.02.2009 with
commitment to deposit the remaining amount within certain
period. Thereafter, the Writ Respondent No.6 by letter dated
11th of February, 2009, directed the writ petitioner to
deposit the remaining amount within certain period.
Accordingly, the writ petitioner Samity deposited the entire
amount within the stipulated time which amount has duly been
accepted. Thereafter, on 07.10.2009 the writ petitioner
3
approached the writ-respondent No.5 to take necessary steps
for execution/registration of the sale dead. Since, the writ
respondent No. 5-the Railway authority failed to do so, it
compelled to file the writ petition.
Writ respondent Nos. 2-7 contested the Rule by filing
an affidavit-in-opposition contending, inter alia, that the
value of the land in question was arbitrarily fixed by some
officers of the Railway department without following the
rules, although on behalf of the writ petitioner an
affidavit was affirmed to pay the market value of the land,
it collusively secured an order of allotment at a very low
price.
The High Court Division upon hearing the parties by
the judgment and order dated 19.08.2010 made the Rule
absolute and directed the writ respondents to
execute/registered the deed in question as per the decision
taken by the writ respondent No.6 within 60 days from date
or receipt of this judgment.
Against the said judgment of the High Court Division,
the writ respondent No.1, present appellant moved this
Division by filing Civil Petition for Leave to Appeal No.15
of 2011. After hearing the parties this Division by the
impugned judgment dated 05.03.2012 dismissed the leave
petition.
Being aggrieved by the said judgment the writ
respondent No.1-present appellant filed Civil Review
Petition No. 73 of 2012 before this Division and,
accordingly leave was granted on 09.12.2014. Hence, the
present appeal.
4
Mr. A.M. Amin Uddin, learned Attorney General,
appearing on behalf of the appellant has made submissions in
lines with the grounds upon which leave was granted. In
addition he submits that in 26th meeting of Bangladesh
Railway authority, no decision was taken to transfer the
case land to the writ petitioner. But the writ petitioner in
the writ petition stated that in the 26th meeting the
Bangladesh Railway took decision to sell out the land in
question and on finding of the minutes of the said meeting
it appears that no such decision was taken in the said
meeting and the writ petitioner had obtained judgment in
Writ Petition No. 1728 of 2010 by suppressing fact and
practicing fraud upon the Court, affirmation of the said
judgment in the Civil Petition No. 15 of 2011 is an error of
law on the face of the record. Learned Attorney General
further submits that on the 18th meeting dated 28.08.2001 a
decision had been taken prohibiting granting of lease or
sale of Railway land, the withdrawal of the said decision on
26th meeting dated 07.04.2004 is absolutely mala fide and
illegal as same was done by the then Communication Minister
and the Bangladesh Railway Authority for personal gains for
obtaining order of allotment of one Bigha of land for an
N.G.O.
Learned Attorney General also submits that decision
to sell of Railway's land by any individual officer and
placing the matter to the higher authority referring order
passed in a writ petition without disclosing that Railway
Board has not approved permission for sale, the same is
mala fide and due to illegal action or decision of any
officer of Railway, the Railway cannot suffer. Learned
Attorney General finally submits that the transferring of
5
the property of the Republic illegally by any office of
Railway or any authority in violation of Law, Rules and
Regulations is of public importance and the leave petition
has been dismissed without considering the aforesaid
aspect.
Per contra, Mr. Probir Neogi, learned Senior Advocate
appearing on behalf of respondent No.1, writ petitioner
submits that the then secretary of the respondent samity
approached the Hon’ble President of the People's Republic
of Bangladesh for leasing out the case land for
rehabilitation of the 1495 evicted shop owner of the samity
to which the Hon'ble President responded positively;
accordingly the Government initiated proceeding and that on
05.11.2002, the meeting of Dhaka Divisional Land Allotment
Committee was held and in that meeting it was unanimously
decided to place the matter to appropriate authority for
its consideration to permanently lease out the said land in
favour of the samity; in that meeting a prohibition was
imposed regarding sale/transfer/granting lease/license of
the case land but since the case land is an acquired land
and it remained unused, therefore to prevent the illegal
occupiers from taking possession of the case land the
Railway authority in its 26th meeting passed a resolution
through which earlier decision for postponing
lease/license/sale of the Railway Property was revoked;
thereafter the Railway authority vide letter bearing memo
No.‡gvg/‡iD/Rwg(2)-29/2003(Ask-2)146 dated 24.03.2005 issued by
Assistant Secretary (Rail Development), Ministry of
Communication decided to sell out the case land in favour
of the respondent samity; from the said letter it is
evident that a decision for selling out case land in favour
6
of the respondent samity was taken in the 26th meeting;
thereafter Railway authority assessed the value of the case
land at Tk. 8,28,03,704.25/- which was increased to the
tune of Tk. 18,24,00,141.56 by a re-assessment of the case
land; the Railway authority received the said amount of
taka vide 178 pay orders and receiving the said amount,
Bangladesh Railway did not execute and register sale deed
in respect of the case land in favour of the respondent
samity and, therefore, the respondent samity as petitioner
filed writ petition No.1728 of 2010 before the High Court
Division praying for direction upon the respondents i.e.
Railway authority to execute and register sale deed in
respect of the case land in favour of the respondent
samity; the High Court Division after perusal of the record
and hearing the parties concerned rightly made the Rule
absolute in the said writ petition which was rightly
affirmed by the this Division in Civil Petition for Leave
to Appeal No. 15 of 2011.
Mr. Neogi also submits that the Railway authority,
after a due process of law passed a resolution and made an
offer to sell out the case land in favour of the respondent
samity and the respondent samity relying upon the said offer
suffered detriment and deposited asking amount of money and
now it will be inequitable for the Railway authority to go
back from its commitment. He further submits that the
reasons as stated by the Railway Authority in the civil
appeal are totally illegal and untenable; the respondent
samity as petitioner filed writ petition No. 1728 of 2010
before the High Court Division praying for direction upon
the respondents (Railway authority)to execute and register
the sale deed in respect of the case land and to handover
7
possession of the same in favour of the present respondent
samity; in the said writ petition Railway Authority as
respondent No.6 contested the Rule by filing affidavit-in-
opposition; nowhere in the said affidavit-in-opposition the
Railway authority raised objection regarding the resolution
of 26th meeting held on 07.04.2004 nor they stated in the
said affidavit that the case land was the non-alienable
property; even those issues were not raised in the leave
petition but, the Railway authority out of mala fide
intention and for illegal gain for the first time raised
those issues in the review petition being No.73 of 2012 and
subsequently, in this appeal which are barred by principle
of estoppel. Mr. Neogi further submits that the respondent
samity is an affected samity and the Railway authority
decided to allot the case land in favour of the respondent,
assessed the value of the case land which the respondent
samity agreed to pay; subsequently the Railway authority
increased the value of the case land which the samity also
agreed to pay and subsequently paid the increased value of
the case land and that the Railway authority received the
said increased amount vide 178 pay orders; it is a
legitimate expectation of the respondent samity that it
would get the possession of the case property by dint of the
said allotment, but the refusal of the appellant to transfer
the case property in favour of the respondent samity is
totally illegal, arbitrary and mala fide.
Mr. Neogi further submits that the Railway Authority
never at any point of time disclosed that the case property
is a non-alienable property rather they passed a resolution
in the 26th meeting held on 07.04.2004 showing the case
property as alienable property and, therefore, the
8
respondent samity as affected samity showed interest to
purchase the case land; if the respondent samity being aware
of that the case land is a non-alienable property it would
not have purchased the case land and would not have
deposited huge amount of money in favour of Bangladesh
Railway but the corrupted Railway officials for being
enriched illegally are denying the papers issued by them and
with a view to deprive the respondent samity from its lawful
right has filed the present appeal on some illegal and
untenable reasons.
Mr. Neogi finally submits that at the time of granting
leave of the review petition being No.73 of 2012, this Court
did not consider that the basis of depositing money in
favour of the Bangladesh Railway was the order dated
06.05.2008 passed by the High Court Division in writ
petition No. 1042 of 2008 in which the Bangladesh Railway
was impleaded as respondent but in the said writ petition
it did not raise objection regarding memo dated 24.03.2005
(Annexure-B to the writ petition) nor it stated at that time
by filing affidavit-in-opposition that the case land was
non-alienable property but now they have claimed that the
said memo had been procured by deceitful means and thus the
Railway authority creating a got up story has filed the
present appeal and as such the appeal is liable to be
dismissed.
We have considered the rival submissions of the learned
Advocates appearing for the parties concerned, perused the
judgement and order of the High Court Division as well as
the impugned judgment of civil petition for leave to appeal
and other connected papers on record as placed before us.
9
In the instant case the writ petitioners’ claim is that
the Railway Board in its 26th meeting dated 17.04.2004 took
decision to sell out 2.575 acres land, i. e. the land in
question to the writ petitioner Samity, which was
communicated to them by a Memo dated 24.03.2005 issued under
the signature of the Assistant Secretary, Railway
Department, Ministry of Communication. And thereafter,
pursuant to an order passed by the High Court Division in
Writ Petition No. 1728 of 2010 they deposited entire money,
i.e. Tk. 18,24,00,141.56/-to the authority concerned and, as
such, the writ petitioner Samity has got the legitimate
expectation to get the land in question registration in its
favour.
We have perused the minutes of the 26th meeting held on
17.04.2004 and upon perusal of the same it transpires that
in the said meeting no such decision was taken by the
Railway Authority to sell out the land in question to the
writ petitioner Samity. However, from the memo dated.
24.03.2005 issued by the Assistant Secretary, Railway
Department it transpired that 2.57 acres land has been
allotted in favour of the writ petitioner Samity. Since no
decision had been taken in the 26th Board Meeting of the
Railway Authority, the Memo dated 24.03.2005 allegedly
communicated the decision of the Railway authority to sell
the property in favour of the writ petitioner Samity, is
nothing but a fraudulent and created document and on the
basis of such document no right has been created in favour
of the writ petitioner Samity and this fraud has vitiated
everything.
10
The writ petitioner Samity having relied on the said
document, by filing Writ Petition No. 1728 of 2010 obtained
an ad-interim order from the High Court Division to deposit
taka One Crore and, thereafter, the Railway Authority asked
them to deposit entire amount and the writ petitioner Samity
deposited entire Tk.18,24,00,141.56 (taka eighteen crore
twenty four lack one hundred forty one and fifty six paisa).
This act of the officials of the Railway Authority is highly
suspicious, unwarranted and misconduct on their part.
In view of the above facts and circumstances, the writ
petitioner Samity is not entitled to get any relief, and the
High Court Division committed serious error in making the
Rule absolute and earlier this Division also failed to
consider this fact that a valuable public property is going
be sold in favour of a private party, by resorting forgery
in collusion with the officials of the concerned Ministry.
It is pertinent to mention here that earlier the resolution
of 26th Board meeting of the railway authority was not
brought to the notice of this Division and if the same was
produced before this Court then result would have been
otherwise.
Moreover, the learned Attorney General has informed the
Court that in the meantime the land in question has been
using for the Mega Project-‘Dhaka Alleviated Expressway’ and
duly construction has been made thereon and an office of the
project under the name and style ‘Intelligent Transport
System (ITS)’is going to be established thereon and, as
such, there is no scope to sell the property to the writ
petitioners’ Samity.
11
Having considered the above facts and circumstances, we
find merit in the appeal. Accordingly, the appeal is
allowed.
The judgment and order passed by the High Court
Division is set aside.
However, it transpires that the Railway Authority
received Tk. 18,24,00,141.56/-from the writ petitioners’
Samity and no point of time they asked the writ petitioner
to take back the said money. In view of the above, Railway
Authority-writ respondent Nos.2-7 are Directed to return the
entire money i.e. Tk. 18,24,00,141.56/- to the writ
petitioner Samity with 5% simple interest rate within a
period of 6 (six) months from the date of receipt of a copy
of this judgment and order.
There is no order as to costs.
J.
J.
J.
J.
J.
B.S./B.R./*Words-2,775*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan,C.J.
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS.82-83 OF 2021
(From the judgment and order dated the 1st August, 2017 passed by a Division Bench
of the High Court Division in Writ Petition No.1326 of 2016 and Writ Petition
No.10041 of 2016)
Md. Mobarak Hossain : . . . Appellant
(In both the cases)
-Versus-
Bangladesh represented by the
Secretary, Ministry of Power,
Energy and Mineral Resources,
Bangladesh Secretariat, Ramna,
Dhaka and others
: . . . Respondents
(In both the cases)
For the Appellant
(In both the cases)
: Mr. Salah Uddin Dolon, Senior Advocate
instructed by Mr. Zainul Abedin,
Advocate-on-Record
For Respondent No.1
(In both the cases)
: Mr. Sk. Md. Morshed, Additional
Attorney General, instructed by Mr.
Haridus Paul, Advocate-on-Record
For Respondents No.2
(In both the cases)
: Mr. K.S. Salah Uddin Ahmed, Senior
Advocate instructed by Ms. Madhu Maloti
Chowdhury Barua and Mr. Mohammad
Ali Azam, Advocate-on-Record
For Respondents No.6
(In both the cases)
: Mr. Mohammad Ali Azam, Advocate-on-
Record
For Respondent Nos.3-5
(In both the cases)
: Not represented
Date of Hearing : The 22 nd day of November, 2023
Date of Judgment : The 7 th day of December, 2023 2
J UD G M E N T
M. Enayetur Rahim, J: Civil Appeal Nos.82-83 of 2021, by
leave, are directed against the judgment and order dated
01.08.2017 passed by the High Court Division in Writ
Petition No.1326 of 2016 with Writ Petition No.10041 of
2016 discharging the Rules.
In both the appeals parties are same and similar law
and facts are involved and those were heard analogously
and are being disposed of by this single judgment.
The relevant facts for disposal of these two Civil
Appeals, in brief, are that the present appellant writ-
petitioner, being an engineer of Bangladesh Polli Biddot
Unnoyon Board, had been working in different Polli Biddot
Samities of Bangladesh under Bangladesh Rural
Electrification Board (BREB). While he was working at
Bancharampur Zonal Office of Brahmanbaria Polli Biddut
Samity during a period from September,2012 to 5th
November,2014 he was found to be involved in corruption.
Accordingly, after proceeding having been drawn against
him in view of the relevant provisions under the fõ£ ¢hc¤Év
p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d,1992, (Service Rules), the authority removed
him from service vide impugned removal order dated
17.05.2016 (Annexure-F in Writ Petition No.10041 of
2016). Being aggrieved by such removal, the writ
petitioner moved Writ Petition No.10041 of 2016 before
the High Court Division and obtained the aforesaid Rule.
After writ petitioner’s service in Brahmanbaria, when the
writ petitioner joined as Deputy General Manager at 3
Biswanath Zonal Office of Sylhet Polli Biddut Samity-1,
he was again found involved in committing corruptions
etc. and, accordingly, he was proceeded again
departmentally in view of the relevant provisions under
the said Service Rules. Accordingly, after enquiry and
show cause notice, he was finally removed from service
vide impugned order dated 24.12.2015 (Annexure-H) in Writ
Petition No.1326 of 2016). As against this order, the
writ petitioner obtained the aforesaid Rule, and,
subsequently, when his appeal against the same was
rejected vide impugned order dated 20.01.2016, he then
obtained a supplementary Rule.
The Rules and supplementary- Rule were opposed by
the writ respondent No.6 (in Writ Petition No.1326 of
2016) and writ respondent No.02 (in Writ Petition
No.10041 of 2016), present-respondent No.2 mainly,
contending that, due process of law was followed in the
departmental proceedings and that the writ petitioner was
removed after giving all opportunities of hearing in
accordance with the relevant provisions of the Service
Rules.
A Division Bench of the High Court Division after
hearing both the Rules analogously by the impugned judgment
and order dated 01.08.2017 discharged both the Rules.
Feeling aggrieved by and dissatisfied with the said
impugned judgment and orders the writ-petition filed two
separate civil petitions for leave to appeal and accordingly
leave was granted. 4
Hence the present appeals.
Mr. Salahuddin Dolon, learned Senior Advocate,
appearing for the appellant-petitioner submits that the
High Court Division has filed to consider that the
impugned order of removal from service dated 24.12.2015
was issued without jurisdiction by a Director (current
charge) on behalf of the Chairman of Bangladesh Rural
Electrification Board (BREB) instead of the Bangladesh
Rural Electrification Board which is the only competent
authority to remove the petitioner from his service
pursuant to the provisions of section 24 of Act No.57 of
2013 as such the impugned Judgment and order dated
01.08.2017 of the Hon’ble High Court Division is liable
to be set aside on this sole ground.
He further submits that the High Court Division has
filed to consider that there are decisions of our apex
court that the Board is the competent authority to
initiate disciplinary proceeding against the employees of
Rural Electrification Board and no subordinate authority
can exercise disciplinary power inasmuch as only the
Board is competent to appoint and take disciplinary
action and any delegation of disciplinary authority was
required to be published in the gazette pursuant to the
provisions of section 26 of Act No.57 of 2013 but in the
instant case, the impugned orders were issued by the
chairman instead of the Board as such the impugned
Judgment and Order dated 01.08.2017 of the Hon’ble High
Court Division is liable to be set aside. 5
Mr. Salauddin also submits that the High Court
Division has failed to consider that the 2(two) members
inquiry committee which was formed to enquire into the
allegations brought against the petitioner had been
formed in clear and flagrant violation of the provisions
of Rule-40(3) of cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa, 1992 (ms‡kvwaZ, 2012) as
1(one) of the members of the inquiry committee, Deputy
Director (Current Charge) was actually holding the
substantive post of Assistant Director/Assistant General
Manager which is a lower rank than that of the petitioner
who was a Deputy General Manager (DGM) as such the
impugned judgment and order dated 01.08.2017 of the High
Court Division liable to be set aside. He further submits
that, once an employee is Dismissed/removed from service
has ceases to be an employee therefore, a
dismissed/removed employee cannot be dismissed/removed
from service for 2nd time inasmuch as the petitioner has
been dismissed twice in an unprecedented manner which is
unheard of, thus, it proves malafide intention and
personal grudge against the petitioner, therefore, the
impugned Judgment and Order dated 01.08.2017 of the
Hon’ble High Court Division is liable to be set aside.
Mr. Salauddin lastly submits that the High Court
Division has failed to consider that removal from service
is a serious matter which affects the livelihood of an
employee and his family members and in the instant case
punishment of removal from service was imposed upon the
petitioner which is very harsh, excessive, 6
disproportionate and unreasonable in test of the general
human conscience as such the impugned Judgment and Order
dated 01.08.2017 of the Hon’ble High Court Division is
liable to be set aside.
Mr. Sk. Md. Morshed, learned Additional Attorney General
appearing with Mr. K.S. Salahuddin Ahmed, learned Advocate
for the respondent Nos.1 and 2 having supported the impugned
judgment and order submits that the appellant was an
officer of Sylhet Palli Bidyut Samity-1, not Bangladesh
Rural Electrification Board, which can be understood from
(a) clause No.2 of his appointment letter bearing
reference No. 27.12.9131.569.100.02. 14.6792 dated
05.11.2014 (ÒAvcbvi PvKzix AÎ mwgwZi PvKzix wewa, cwem evBÕj, cwem bxwZ wb‡`©wkKv I mg‡q
mg‡q cÖewZ©Z evcwe ‡ev‡W©i mvKz©jvi Abyhvqx cwiPvwjZ I wbqwš¿Z nB‡e|Ó) issued by
Sylhet PBS-1 and also from (b) the fact that PBS Service
Code 1992 amended in 2012 has been admitted by the
appellant to apply to him hence section 24 of Act no.57
of 2013 does not at all apply to the appellant given that
the said section 24 only applies to officers and
employees of BREB and it has no manner of application of
officers and employees of PBS like the appellant and that
section 26 of the said 2013 Act also has no manner of
application in the instant matter because no delegation
of disciplinary authority has taken place in the instant
matter at all.
Mr. Morshed also submits that the Removal order
dated 14.12.2015 was issued as per the decision of the
Chairman of BREB and the said removal order was merely 7
communicated by the Director (Current Charge) of Inquiry
and Discipline Directorate of BREB and this practice has
been emphatically endorsed by this Division in Judgment
and Order dated 02.04.2017 passed in Civil Petition for
Leave to Appeal No.3470 of 2015 heard with three other
cases as such no illegality whatsoever has been
communicated in issuing the removal order.
He also submits that PBSes are separate entities
registered under BREB which will be evident from section
2(10) of Act No.57 of 2013 and which can also be
understood from the fact that service of officers and
employees of BREB are regulated by evsjv‡`k cjøx we`y¨Zvqb †evW© Kg©Pvix
PvKix cÖweavbgvjv 2018 (previously evsjv‡`k cjøx we`y¨Zvqb †evW© Kg©Pvix PvKix cÖweavbgvjv
1990 was in force) but service of officers and employees
of PBSes are regulated by cjøx we`y¨r mwgwZ Kg©Pvix PvKix wewa 1992 (ms‡kvwaZ
2012).
It has been also argued by the learned Advocate for
the respondents that no illegality has been committed by
the concerned authority of BREB in appointing a Deputy
Director on Current Charge as one of the two members of
the enquiry committee while appointing a Deputy Director
as Convenor of the enquiry committee because in those
cases where an enquiry committee has more than one member
(like the present case), rule 40(3) of PBS Service Code
only requires that the Convenor of the enquiry committee
be at least a Deputy Director of BREB (ÒDc-cwiPvjK/wbe©vnx cÖ‡KŠkjx
c` gh©v`vi wb‡¤œ †Kvb Kg©KZ©v‡K. . . Z`šÍ KwgwUi AvnevqK wbhy³ Kiv hvB‡e bv|Ó) while the
other order member(s) only need(s) to be an officer of 8
BREB (Òcwem Gi .... †WcywU †Rbv‡ij g¨v‡bRvi .... c`exi Kg©KZ©vM‡Yi weiæ‡×... Awf‡hvMbvgv
Z`‡šÍi †ÿ‡Î GB PvKzix wewai AvIZvq cjøx we`y¨Zvqb †ev‡W©i Kg©KZ©v‡K Z`šÍKvix KZ©KZ©v wb‡qvM. . .
.Kwi‡Z nB‡e|Ó).
Mr. Morshed further submits that no illegality has
been committed by the authority in removing the appellant
from service first vide memorandum No.430 dated
24.12.2015 in respect of some allegations arising out of
the appellants service at Sylhet PBS-1 and then vide
memorandum no.870 dated 17.05.2016 in respect of some
allegations arising out of the appellants service at
Brahmanbaria PBS for the reason that there is no
limitation in the Service Code to conduct and complete a
departmental proceeding when the delinquent employee has
already been removed in another departmental proceeding;
moreover in the said second departmental proceeding the
appellant has enjoyed all the opportunities of defending
himself as provided under the service code and moreover
long before his first removal from service on 24.12.2015,
the other departmental proceeding (in which the appellant
was removed from service on 17.05.2016) had already
started long ago on 31.03.2015 with issuance of show
cause notice bearing reference no.638 and that the
appellant is a serial offender which is evident from the
fact that the appellant has been removed from service in
respect of separate allegations which arose from his
service at two separate PBSes and furthermore there are
some similarities to the allegations in those two
departmental proceedings as such the appellant is a 9
habitual offender whose removal from service as a result
of his numerous misconduct and offences should be upheld.
We have considered the rival submissions of the
learned Advocates for the respective parties, perused the
impugned judgment, leave granting order and other
materials as placed before us.
In the instant case, the appellant was appointed by
the Bangladesh Rural Electrification Board and thereafter
his service was transferred to the Palli Bidyut Samity
and subsequently his various promossions and transfer to
the different Palli Bidyut Samity was/were done by the
Board and as such we have no hesitation to hold that the
petitioner’s terms of service shall be governed by the
relevant Service Rules of the Bangladesh Rural
Electrification Board, not by the Service Rules of Palli
Bidyut Samity. In the instant case the departmental
proceeding against the appellant was done in accordance
with the provision of fõ£ ¢hc¤Év p¢j¢a (PvKzix wewagvjv), 1992 though his
appointing authority is the Rural Electrification Board,
which has own service Rules. Proceeding initiated and
conducted by one service Rules under a separate authority
and ultimate decision taken by another authority is
unheard of and not permissible in law and equity.
In the dismissal order (Annexure-K) it has been
mentioned to the effect:
Ò‡m‡nZz, mvwe©K ch©v‡jvPbv‡šÍ cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa, 1992,
ms‡kvwaZt 2012Bs Gi 38|1|(K) I (M) bs aviv Abyhvqx Avcbv‡K Am`vPiY 10
I Dr‡KvP MÖn‡Yi `v‡q `vqx KiZt GKB PvKzix wewai 39|(1)(L)(3) bs aviv
Abyhvqx Avcbv‡K `wÛZ K‡i PvKzix n‡Z AcmviY `Û Av‡ivc Kiv nj|Ó
(Underlines supplied)
In view of the above admitted facts and
circumstances entire departmental proceeding against the
appellant is without jurisdiction and illegal.
Since departmental proceeding against the appellant
under the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d,1992 is illegal and without
jurisdiction, we do not feel it necessary to decide other
grounds on which leave was granted. Because, in this
particular case departmental proceeding has vitiated the
whole proceedings.
The definition of ÔKZ…©cÿÕ as defined in cjøx we`y¨r mwgwZ Kg©Pvix
PvKzix wewagvjv,1999 and cjøx we`y¨Zvqb ‡evW© Gi Kg©Pvix PvKzix cÖweavbgvjv, 1990 are quite
distinguisble.
ÔKZ…©cÿÕ and ÔKg©KZ©vÕ as defined in cjøx we`y¨r mwgwZ Kg©Pvix PvKzix wewa,1992
are as follows:
Òwewa 2(M)- KZ…©cÿ ewj‡Z wb‡qvMKvix KZ…©cÿ wKsev KZ…©cÿ wKsev KZ…©c‡ÿi ÿgZv
cÖ‡qvM Kivi Rb¨ Zv KZ…©K g‡bvbxZ/ÿgZvcÖvß †Kvb Kg©KZ©v‡K eySvB‡e Ges wb‡qvMKvix
KZ…©c‡ÿi DשZb KZ…©cÿ Bnvi AšÍf©y³ nB‡e| Bnv Qvov KZ…©cÿ ewj‡Z cjøx we`y¨Zvqb
†evW© wKsev †ev‡W©I ÿgZv cÖ‡qvM Kivi Rb¨ Zv KZ…©K g‡bvbxZ/ÿgZv cÖvß †Kvb Kg©KZ©v‡K
eySvB‡e|
wewa 2(N)- Kg©KZ©v ewj‡Z cjøx we`y¨r mwgwZi †h †Kvb Kg©KZ©v‡K eySvB‡e|Ó
In cjøx we`y¨Zvqb †evW© Gi Kg©Pvix PvKzix cÖweavbgvjv, 1990 ÔKZ…©cÿÕ Ges ÔKg©KZ©vÕ have
defined as under: 11
ÒcÖweavbgvjv 2(M) KZ…©cÿ ewj‡Z wb‡qvMKvix KZ©„cÿ wKsev KZ©„c‡ÿi ÿgZv cÖ‡qvM Kivi
Rb¨ ZrKZ…©K g‡bvbxZ †Kvb Kg©KZ©v‡K eySvB‡e Ges wb‡qvMKvix KZ…©c‡ÿi DשZb
KZ…©cÿI Bnvi AšÍ©fz³ nB‡e;
cÖweavbgvjv 2(N) Kg©KZ©v ewj‡Z †evW© Gi †Kvb Kg©KZ©v‡K eySvB‡e|Ó
In view of the above, there is no scope to say that
an officer appointed by the Board, who is subsequently
transferred to the Samity is a regular officer of the
Samity.
In view of the above, we find merit in the appeal.
Accordingly, the appeal is allowed without any order
as to cost.
The judgment and order dated 01.08.2017 passed by
the High Court Division in Writ Petition No.1326 of 2016
with Writ Petition No.10041 of 2016 is hereby set aside.
C.J.
J.
J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:2,460
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1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1566 OF 2023 WITH
CIVIL PETITION FOR LEAVE TO APPEAL NO. 1547 OF 2023 AND 1559
OF 2023.
(From the judgment and order dated the 30th day of March, 2023 passed by
the High Court Division in Writ Petition Nos.8594 of 2021 and 11803 of
2021).
Jasmin Ara Begum and others : . . . Petitioners
(In C.P. No. 1566 of 2023)
Lailun Najma Begum and others : . . . Petitioners
(In C.P. No. 1547 of 2023)
Marzina Yesmine and others : . . . Petitioners
(In C.P. No. 1559 of 2023)
-Versus-
Bangladesh, represented by the
Secretary, Ministry of Women
and Children Affairs,
Bangladesh Secretariat, Dhaka
and others
: . . . Respondents (In C.P. No. 1566 of 2023)
Jasmin Ara Begum and others : . . . Respondents (In C.P. No. 1547 of 2023)
Laila Nasrin Jahan and others . . . Respondents (In C.P. No. 1559 of 2023)
For the Petitioners
(In C.P. No. 1566 of 2023) : Mr. Anwarul Azim Khair, Senior
Advocate, instructed by Mr. Zainul
Abedin, Advocate-on-Record
For the Petitioners
(In C.P. Nos. 1547 of 2023 &1559 of 2023) : Mr. M. K. Rahman, Senior Advocate,
with Mr. ABM Siddiqur Rahman
Khan, Senior Advocate, instructed by
Mr. Md. Helal Amin, Advocate-on-
Record
For Respondent Nos. 5-10 &
22-23
(In C.P. No. 1566 of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Ms.
Sahanara Begum, Advocate-on-Record
For Respondent No.56
(In C.P. No. 1547of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Ms.
Sahanara Begum, Advocate-on-Record
2
For Respondent Nos. 1-2, 5, 7,
21, 29 & 49
(In C.P. No. 1547 of 2023)
: Mr. Anwarul Azim Khair, Senior
Advocate, instructed by Mr. Zainul
Abedin, Advocate-on-Record
For Respondent Nos. 1-4
(In C.P. No. 1559 of 2023)
: Mr. A.M. Amin Uddin, Senior
Advocate, with Mr. Mohammad Saiful
Alam, Advocate, instructed by Mr. Md.
Abdul Hye Bhuiyan, Advocate-on-
Record
Respondent Nos. 1-4, 11-21&
24-55
(In C.P. No. 1566 of 2023)
: Not represented
Respondent Nos. 3-4, 6, 8-20
22-28, 30-48, 50-55 & 57-75
(In C.P. No. 1547 of 2023)
: Not represented
Respondent Nos. 5-9
(In C.P. No. 1559 of 2023)
: Not represented
Date of hearing and judgment : The 28th day of January, 2024
JUDGMENT
M. Enayetur Rahim, J: Civil Petitions for Leave to Appeal
Nos.1566 of 2023 and 1547 of 2023 are directed against the
judgment and order dated 30.03.2023 passed in Writ Petition
No.8594 of 2021, and Civil Petition for Leave to Appeal
No.1559 of 2023 is directed against the judgment and order
of the same date passed in Writ Petition No.11803 of 2021 by
the High Court Division disposing of the Rules with
observations and direction.
The subject matter of all the civil petitions for leave
to appeal are same and those are heard together and disposed
of by this common judgment.
The relevant facts leading to the filing of the
present civil petitions for leave to appeal are that, the
present petitioners in C.P. No. 1566 of 2023 and respondents
in C.P. No. 1559 of 2023 filed two separate writ petitions
before the High Court Division challenging the gazette
notification dated 13.12.2018 so far as it relates to
amending serial No.3 of the schedule-‘Ga’ of “Kg©KZv© I Kg©Pvix (gwnjv 3
welqK cwi`ßi) wb‡qvM wewagvjv, 1990” (in short, the Rules, 1990) by
substituting new serial No.3 in place of earlier serial No.3
as being ultra vires the Constitution and prayed for a
declaration that the terms and conditions of their service
shall be governed by the original Rules, 1990 and all the
actions taken including belated up-gradation of the post of
the writ petitioners in Class-1 post with effect from
15.08.2019 published in the Official Gazette on 15.08.2019
by applying the amended Rules instead of promotion are
without lawful authority and is of no legal effect. The
petitioners further prayed for a direction upon the writ
respondents to give them promotion in the post of Deputy
Director with effect from the date they became eligible
under the original Rules.
On 30.09.2021 the High Court Division issued a Rule
Nisi in Writ Petition No. 8594 of 2021 and on 12.12.2021
issued a Rule Nisi in Writ Petition No. 11803 of 2021.
Added respondent No.5-30 in Writ Petition No. 8594 of
2021 and writ respondent No.3 of Writ Petition No. 11803 of
2021 contested the Rule.
The High Court Division after hearing both the Rules
by a common judgment and order disposed of the same with
the following observations and directions:
“(a) The amended schedule to the Service
Rules did not adversely affect the rights of
the petitioners. Hence, the same is not struck
down and accordingly, declared to be intra
vires the Constitution prospectively. However,
the writ petition is maintainable for the
reasons discussed in paragraph No. 21 above. 4
(b) The final gradation list approved, vide
Memo dated 27.07.2022 so far as it relates to
the petitioners and Program Officers are
declared to have been made without lawful
authority and of no legal effect.
(c) The concerned respondents are directed
to prepare a new gradation list so far as it
relates to the holders of the posts, namely
Upazilla Women Affairs Officer (UWAO)and
Program Officer in accordance with the
gradation list dated 14.12.2004 in light of the
observations made in paragraph Nos. 25 and 27
above.
(d) In respect of employees, who hold the
post of Assistant Director (Training),
Assistant Director (Marketing), Assistant
Director (Career Development), Assistant
Director (Micro Credit and Audit) and Hostel
Superintendent (Temporary) (respondent Nos. 5-
10 and 24 of WP No. 8594 of 2021) and whose
names have been included in the gradation list,
this Court has considered the submissions
advanced by the learned Advocates of both
sides. Having considered the arguments, this
Court has decided to leave the matter with the
concerned authority who shall decide the matter
in accordance with the applicable laws/rules.”
Being aggrieved by the said judgment and order, the
petitioners of Writ Petition No. 8594 of 2021 have filed
Civil Petition for Leave to appeal No.1566 of 2023, added 5
respondents No.25-30 of Writ Petition No. 8594 of 2021
have filed Civil Petition for Leave to appeal No.1547 of
2023 and third party have filed Civil Petition for Leave
to Appeal No.1559 of 2023 before this Division.
Mr. Anwarul Azim Khair, learned Senior Advocate,
appearing on behalf of the petitioners in C.P. No. 1566 of
2023 submits that in observation No.(a) of the judgment and
order dated 30.03.2023 of Writ Petition No.8594 of 2021,
the High Court Division erroneously observed that the
amended schedule to the Service Rules did not adversely
affect the petitioners' rights ignoring the settled
proposition of law that the service rules in existence at
the time of appointment of an employee create a vested right
to him which cannot be altered/changed subsequently to his
disadvantage, but the amended Service Rules, 2018 just took
away the petitioners' accrued or vested rights to qualify
for promotion to the post of Deputy Director until 2026
requiring more 5(five) years’ service, whereas the
petitioners already qualified for such promotion long back
in 2021 under Rules, 1990 and thus, such amendment patently
disadvantageous to the petitioners' rights.
The learned Advocate further submits that observation
No.(a) of the High Court Division is misconceived and
erroneous in fact and law both, inasmuch as, the High Court
Division failed to appreciate that declaration of the
amended schedule to the Service Rules to be intra vires the
Constitution prospectively would have no bearing in the
petitioners’ case, rather their accrued and vested rights
under Rules, 1990 is taken away by way of giving
retrospective effect of the amended Rules, 2018, which so 6
far relates to the petitioners is required to be declared
ultra vires the Constitution. He also submits that the High
Court Division utterly failed to consider that the post of
Assistant Director (Training), Assistant Director
(Marketing), Assistant Director (Career Development),
Assistant Director(Micro Credit and Audit) and Hostel
Superintendent(Temporary) have not been brought in
permanent organizational set up, have not been made
permanent, rather have kept on yearly retention basis and
would be abolished automatically in case of death,
retirement, termination etc. of the post holders and no new
manpower would be recruited in those posts are not included
in the feeder post of Deputy Director under both the Rules,
1990 and the amended Rules, 2018 and thus their inclusion in
the gradation List, 2022 downgrading the petitioners'
position is ex-facie, illegal, arbitrary, mala-fide and void
ab-initio, which is liable to be declared without lawful
authority, instead of leaving the matter at the whim of the
Authority, who already took side with those post holders
prejudicing the Petitioners' interest.
The learned Advocate finally submits that the High
Court Division did not consider the material fact that the
petitioners were appointed under Rules, 1990 and their
promotion, qualification and seniority would be determined
in accordance with the provision of Rules, 1990 and amended
Rules, 2018 bringing change in those events shall have no
bearing against the petitioners, which this Division settled
repeatedly, but as in the petitioners’ case, since the
Respondent No.4 persistently refusing such proposition, the
High Court Division erred in law in not declaring the 7
petitioners' service to be governed by Kg©KZv© I Kg©Pvix (gwnjv welqK
cwi`ßi) wb‡qvM wewagvjv, 1990 under which they were appointed.
Mr. A.M. Amin Uddin, learned Senior Advocate,
appearing for respondent Nos.5-10 and 22-23 in C.P. No. 1566
of 2023, respondent Nos.56 in C.P. No.1547 of 2023 and
respondent Nos.1-4 in C.P. No. 1559 of 2023 made submissions
in support of the impugned judgment and order of the High
Court Division.
Mr. Anwarul Azim Khair, Senior Advocate, appearing for
respondent Nos.1-2, 5, 7, 21, 29 and 49 in C.P. No. 1547 of
2023 also makes submissions in support the impugned judgment
and order of the High Court Division.
We have considered the submissions of the learned
Advocates for the respective parties, perused the impugned
judgment and order of the High Court Division and other
connected papers available on record.
It appears from the impugned judgement that the High
Court Division did not struck down the Service Rules holding
that the Service Rules did not adversely affect the rights
of the writ petitioners but the High Court Division gave
relief to the petitioners holding that the writ petition is
maintainable.
Admittedly, the High Court Division did not declare the
law ultra vires, rather it held that the law is intra vires;
however, the High Court Division gave benefit/relief to the
writ petitioners holding the writ petition is maintainable.
Admittedly, the writ petitioners are the Government servant,
if they are aggrieved by any action, their remedy lies in
the Administrative Tribunal. The findings of the High Court
Division that the writ petition is amenable, when it itself 8
found that the Service Rules is intra vires, is suffers from
legal infirmity and illegality.
It is well settled that the Government servants cannot
be entitled to invoke writ jurisdiction when their remedy is
available in the Administrative Tribunal. Mere challenging
Service Rules ipso facto does not make it amenable to the
writ jurisdiction.
In passing the impugned order, the High Court Division
failed to consider and appreciate the ‘doctrine’ that what
cannot be done directly cannot also be done indirectly.
Having considered above, we do not find any merit in
these leave petitions. All the leave petitions are
misconceived.
Accordingly, the impugned judgment and order of the
High Court Division is set aside.
However, the writ petitioners may approach before the
Administrative Tribunal for their grievance, if any, and if
they will approach to the Administrative Tribunal, law of
limitation will not stand as a bar for dealing before the
Administrative Tribunal.
In the light of the above, all the civil petitions for
leave to appeal are disposed of.
J.
J.
J.
J.
J.
B.S./B.R./*Words-2,018 *
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO.232 OF 2014 WITH CIVIL PETITIONS
FOR LEAVE TO APPEAL NO.2680 OF 2014 & 602 OF 2017.
(From the judgments and orders dated 24.09.2014 and 12.02.2017 passed by the High Court
Division in Writ Petitions No.7489 of 2014, 6951 of 2014 & 1948 of 2017)
A.B.M. Altaf Hossain ...........Appellant
(In C.A. No.232 of 2014)
Mohammad Idrisur Rahman, Advocate .................Petitioner
(In C.P. No.2680 of 2014)
Md. Farid Ahmed Shibli .................Petitioner
(In C.P. No.602 of 2017)
-Versus-
Government of Bangladesh and others ............Respondents
(In all the cases)
For the appellant
(In C.A. No.232 of 2014) : Mr. Probir Neogi, senior Advocate with Mr.
Momtazuddin Fakir, senior Advocate, Mr.
Motahar Hossain, senior Advocate, Mr. M.
Sayed Ahmed, senior Advocate, Mr. Mahbub
Shafique, Advocate, Ms. Anita Ghazi Rahman,
Advocate, Ms. Suvra Chakravorty, Mr.
Manzur-Al-Matin, Advocate, Mr. Imranul
Kabir, Advocate and Mr. Khandaker Reza-E-
Raquib, Advocate instructed by Mr. Zainul
Abedin, Advocate-on-Record.
For the petitioner
(In C.P. No.2680 of 2014) : Mr. Syed Mahbubar Rahman, Advocate-on-
Record.
For the petitioner
(In C.P. No.602 of 2017) : Mr. Manzill Murshid, senior Advocate,
instructed by Mr. Md. Mahboob Murshed,
Advocate-on-Record.
For the respondents
(In all the cases) : Mr. A.M. Amin Uddin, Attorney General with
Mr. Mohammad Mehedi Hassan Chowdhury,
Additional Attorney General, Mr. Md. Mojibur
Rahman, Assistant Attorney General, Mr.
Mohammad Saiful Alam, Assistant Attorney
General and Ms. Tamanna Ferdous, Assistant
Attorney General instructed by Mr. Haridas
=2=
Paul, Advocate-on-Record.
Dates of hearing : 12.01.2023,16.02.2023,23.02.2023,09.03.2023,30.
03.2023 & 25.05.2023.
Date of judgment : 14.06.2023.
JUDGMENT
Since everyone of us has delivered separate judgments those are
produced below. However, a common Court’s order has been passed
which is stated at the end of the judgments.
Md. Nuruzzaman J. I have had the privilege of going through
the Judgment proposed to be delivered by my learned brothers,
Obaidul Hassan J., Borhanuddin J., M. Enayetur Rahim J., Md.
Ashfaqul Islam J., Md. Abu Zafor Siddique and Jahangir Hossain J.
Concurring with the final decision of the appeal, I would like to
express my own views. The facts as has been fully narrated by my
learned brothers, I am of the view that further narrating the facts
would lead to repeat the same.
The constitutional provisions for appointing the judges of the
Supreme Court of Bangladesh at time of the appointment and then
non-appointment of the judges concerned as illustrated in the
Constitution of Bangladesh are as follows:
Additional Supreme Court Judges
98. Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
=3=
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any temporary
period :
Provided that nothing in this article shall prevent a person
appointed as an Additional Judge from being appointed as
a Judge under article 95 or as an Additional Judge for a
further period under this article.
Appointment of Judges
95. (1) The Chief Justice shall be appointed by the President
and the other Judges shall be appointed by the President
after consultation with the Chief Justice.
(2) A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and –
(a) has, for not less than ten years, been an advocate of the
Supreme Court ; or
(b) has, for not less than ten years, held judicial office in the
territory of Bangladesh ; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.
(3) In this article, “Supreme Court” includes a court which
at any time before the commencement of this Constitution
exercised jurisdiction as a High Court in the territory of
Bangladesh.
From the plain reading of the above stated Constitutional
framework for appointing judges of the supreme court of Bangladesh
the subtle thing that should not be averting gaze is that while
appointing Additional Judges under Article 98, there is no
constitutional obligation for the President consulting with the Chief
Justice of Bangladesh and such consultation is mandatory while
=4=
appointing judges under Article 95. Well, there was such a consulting
precondition within the purview of Article 98 in the original
constitution of 1972 and which was eliminated through 4th
amendment of the Constitution. Nevertheless, the Constitution too did
not impose that the CJB should not be consulted and as a convention
the CJB usually consulted prior to the appointment of such judges. For
instance, we can recapitulate the unpleasant incident of 1994 for
appointing of some judges without consulting the CJB and after
serious repercussions from every corner of the Bench-Bar and citizens,
that appointment was finally revoked and till date the same is
maintained religiously. Whatever may be the case, the Constitutional
scheme is such that the executive organ shall appoint a judge of the
Supreme Court after eventual scrutiny of antecedents as well as legal
acumen of the person concerned with or without consultation with
CJB.
Though it is the President who officially appoints the judges of
the Supreme Court, however, in reality it is the advice of the Prime
Minister. Because, as per Article 48(3)-
“(3) In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
article 95, the President shall act in accordance with the
advice of the Prime Minister:
=5=
Provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
The meaning, understanding and effects of this mandatory
consultation process was epically identified in the epoch-making
judgment of this Division in the case of Secretary, Ministry of Finance,
Government of Bangladesh Vs. Md. Masdar Hossain & others
reported in 2000 20 BLD (AD) 104 (popularly known as Masdar
Hossain case) as hereunder:
“...we pause here and reflect on the words "in consultation
with the Supreme Court" contained in Article 116. We have
no doubt in our mind that the President in Article 116, as
Syed Ishtiaq Ahmed rightly points out, in effect means the
Prime Minister or the Chief Political Executive of the
country, in view of Articles 48(3) and 55(2). The President
wields control over the Presiding Officers of subordinate
courts in a wide variety of fields. The Prime Minister has
therefore become in reality the real wielder of power in
this regard. The Prime Minister being a political person on
whom is vested the executive power of the Republic
needed a check on such a sweeping and absolute power.
Dr. Kamal Hossain rightly termed the words "in
consultation with the Supreme Court" As a pillar which
held up the independence of the judiciary as a basic
structure of the Constitution. In order that this pillar may
not end up as a bamboo pillar, the word "consultation" has
to be given some teeth, or else, as Syed Ishtiaq Ahmed
rightly pointed out, Articles 116 and 116A will be only
mocking birds.”
=6=
Though the above observations directly relates to the Articles
connected with the judicial officers of the district judiciary, however,
the meaning, understanding and effects are absolutely identical with
Article 95.
As appointment of judges in the Supreme Court is both a
constitutional post and warrant high esteem across the citizens, it is
impliedly ordained by the Constitution itself that prior to such
appointment all sorts of antecedents of the judge of the Supreme Court
on the cards be examined comprehensively. After having such clean
chit or certificate of spotless records and fulfilling legal, academic and
other mandatory requirements, if a person is appointed as Additional
Judge of the Supreme Court, he/she comes within judicial and
administrative domain of the Chief Justice for the two (02) years of
temporary period.
Now, getting back on the very basic question posted above, my
understanding is that the constitution makers included consultation
process in the Article 95 and later excluded in the Article 98 to give
extraordinary weightage to obligatory consultation procedure while
appointing a judge permanently. Because, this time that additional
judge effectively served two years on the open Court under oath and
within the direct surveillance of the senior judges of the Supreme
Court and the Chief Justice himself. He/she had to dispose adequate
cases and write judgments and as a convention, the quality and
=7=
integrity of those decisions are to be examined by the senior most
judges of both the Divisions of the Supreme Court including the CJB.
In other words, while appointing permanently, a person having prior
clean chit about his/her antecedents, fulfilling constitutional
requirements and other jobs as stated above done successfully, then
the CJB recommend his/her name to the President for appointing as a
Judge of the Supreme Court of Bangladesh.
Well, albeit the CJB’s recommendation, the Executive could
differ, at least for practical purposes. If there are diverged opinions
concerning a person’s appointment in the Supreme Court what should
the President do? Whose opinion should get preference?
Here comes the idea of primacy of opinion between executive
and judiciary in the matters of exclusive judicial arena and presence of
a workable mechanism for scientifically rational resolution of
difference of opinion. In this context our highest Court in the case of
“Bangladesh represented by the Secretary, Ministry of Justice and
Parliamentary Affairs and others (In. C. P. Nos. 2221 & 2222 of 2008),
Justice Syed Md. Dastagir Hossain and others (In. C. P. Nos. 2046 &
2056 of 2008) vs. MD. IDRISUR RAHMAN, ADVOCATE AND
OTHERS (In. C. P. Nos. 2221 of 2008), MD. SHAMSUL HUDA AND
OTHERS (In. C. P. Nos. 2222 of 2008), MD. SHAMSUL HUDA,
ADDITIONAL JUDGE AND OTHERS (In. C. P. Nos. 2046 of 2008) and
MD. IDRISUR RAHMAN, ADVOCATE AND OTHERS (In. C. P. Nos.
=8=
2056 of 2008) reported in 29 BLD (AD) 79 popularly known as `10
Judges Case’ observed hereunder:
“It has been asserted by the writ petitioners that there is
continuous and unbroken convention of consultation with
the Chief Justice of Bangladesh regarding appointment of
Judges and that has not been denied by the Government
by filing any counter affidavit. It is true that there has been
unbroken and continuous convention of consultation
excepting a breach in 1994 which was subsequently cured
by consulting the Chief Justice and by issuing a fresh letter
of appointment of the Judges by cancelling the earlier one
which was issued without consulting the Chief Justice of
Bangladesh. Therefore, the consultation with the Chief
Justice must be effective consultation with its primacy.
In the case of S.P. Gupta and others Vs. President of India
and others reported in AIR 1982 (SC) 149, the case of
Supreme Court Advocates-on-Record Association Vs.
Union of India reported in AIR 1994 page 269 and Special
Reference No. 1 of 1998 and the case of Al-Jehad Trust Vs.
Federation of Pakistan reported in P.L.D. 1996 Vol-1 page
324 the matter of consultation with the Chief Justice in the
matter of appointment of Judges to the higher Judiciary
was considered and it was held that consultation with the
Chief Justice is a pre-requisite and the opinion of the Chief
Justice shall have primacy.”
One point must be mentioned here that at the time of accruing
the cause of action and finally disposal of the `10 Judges Case’ there
was no incorporation of consultation process neither in Article 98 nor
in 95. Nevertheless, with the interpretation of the Constitution the
=9=
Apex court decided that mandatory consultation with the CJB having
primacy is a basic structure of the Constitution.
In the `10 Judges Case’ His Lordship Mr Justice Tafazzul Islam
observed that:
“As it appears in view of the provisions of Article 94(4) of
the Constitution and the interpretation of the words "shall
be independent" as contained in Article 116A of the
Constitution as given in Masdar Hossain's case, 20
BLD(AD) 104 and also the principles laid down in Sankar
Chand's case, : MANU/SC/0065/1977 : AIR 1977 S.C.
2328, wherein the Supreme Court of India interpreting
Article 50 of Indian Constitution, which is similar to
Article 22 of our Constitution, held that a basic pillar of the
Constitution cannot be demolished or curtailed or
diminished in any manner except by and under the
provision of the Constitution and the Appellate Division
applied the above view in Anwar Hossain's case, 41 DLR
(AD) 165 and that there is also no bar either in Article 95 or
Article 98 or any other provision of the Constitution in
respect of consultation with the Chief Justice and further
the primacy of the opinion of the Chief Justice is in no way
in conflict with Article 48(3) of the Constitution and the
advice of the Prime Minister is subject to Articles 22 , 94(4)
, 95 , 98 , 116 and 116A of the Constitution and accordingly
the Prime Minister, on the basis of Articles 48(3) and 55(2)
of the Constitution, cannot advice contrary to the basic
feature of the Constitution so as to destroy or demolish the
independence of judiciary and as such consultation with
the Chief Justice with primacy of his opinion is an integral
part of independence of judiciary which is ingrained in the
=10=
very concept of the independence of judiciary embedded
in the principle of Rule of Law.”
This Division further observed that:
“Therefore it follows that consultation with the Chief
Justice with primacy is an essential part of independence
of judiciary which is ingrained in the very concept of
independence embedded in the principle of Rule of Law
and separation of judiciary from the executive and is not in
conflict with Article 48(3) of the Constitution.”
In the case of Anwar Hossain Chowdhury and others Vs.
Bangladesh reported in 41 DLR (AD) 165, commonly referred as `8th
amendment case’ it was held that:
“This point may now be considered. Independence of
judiciary is not an abstract conception. Bhagwati, J: said
`if there is one principle which runs through the
entire fabric of the Constitution, it is the principle of
the Rule of Law and under the Constitution, it is the
judiciary which is entrusted with the task of keeping
every organ of the State within the limits of the Law
and thereby making the Rule of Law meaningful and
effective.’
He said that the Judges must uphold the core principle of
the Rule of Law which says-`Be you ever so high, the Law
is above you.’ This is the principle of independence of the
judiciary which is vital for the establishment of real
participatory democracy, maintenance of the Rule of Law
as a dynamic concept and delivery of social justice to the
vulnerable Sections of the Community. It is this principle
of independence of the judiciary which must be kept in
=11=
mind while interpreting the relevant provisions of the
Constitution (S.P. Gupta and others Vs. president of India
and others AIR 1982 SC at pate 152)."
Independence of the Judiciary, a basic structure of the
Constitution, is also likely to be jeopardised or affected by
some of the other provisions in the Constitution. Mode of
their appointment and removal, security of tenure
particularly, fixed age for retirement and prohibition
against employment in the service of the Republic after
retirement or removal are matter of great importance in
connection with the independence of Judges. Selection of a
person for appointment as a Judge in disregard to the
question of his competence and his earlier performance as
an Advocate or a Judicial Officer may bring in a "Spineless
Judges" in the words of President Roosevelt; such a person
can hardly be an independent Judge.”
These views of the Apex Court of this land were reiterated in the
“Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th
Amendment Case”, “13th Amendment Case”, “16th Amendment
Case” and so on.
Let’s travel through the memory lane of the foundation of the
constitution of Bangladesh. What our Constitution makers of the
Constituent Assembly of 1972 thought concerning the independence of
judiciary and separation of it from the executive?
Deputy Leader of the Constituent Assembly and the Acting
President of Bangladesh during the liberation war of Bangladesh Syed
Nazrul Islam on 19.10.1972 said that:
=12=
"মাননীয় Ѻীকার সােহব, গণতেϴর সবেচেয় বড় কথা হেИ separation of
judiciary from the executive, অথκাৎ আইেনর শাসন এমনভােব ϕবতκন
করেত হেব, έযন আইনিবভাগ পিরপূণκভােব িনরেপϠ থােক এবং মযκাদা
এবং Ѿাধীনতার সেД তার কতκবҝ পালন করেত পাের। এই শাসনতেϴ
আমােদর আইনিবভাগেক ზধু আলাদা করাই নয়, তােক পিরপূণκ মযκাদা
έদওয়ার জনҝ έয বҝবѸা ςহণ করা হেয়েছ, তােত আইেনর শাসন সїেс
আমােদর মেন έকান সংশয় থাকা বাОনীয় নয়।"
Sirajul Haque, Advocate, Member of the Constituent Assembly
on 30.10.1972:
"έয ‘জুিডিসয়াল িসেѶম' আমরা িদেয়িছ, আিম গেবκর সেД বলেত পাির,
বсু রাϻ ভারতবষκও এখন পযκо তা িদেত পােরিন। έকননা, ভারতবেষκ
এখনও ‘জুিডিসয়ািরেক সѕূণκ পৃথক করা সјব হয়িন। আর, আমরা έচѭা
কেরিছ, আলাদা করার। ზধু হাইেকাটκ নয়, সুϕীম έকাটκ নয়- আমােদর
িনєতম ‘ জুিডিসয়াির’έকও ‘ এΝЊিকউΜটভ’ έথেক আলাদা করবার জনҝ
আমােদর সংিবধােন বҝবѸা কেরিছ। সুতরাং অিভেযাগ সতҝ নয় ৷"
Chairman of the Draft Constitution Committee and Law
Minister Dr Kamal Hossain said on 12.10.1972:
"আইেনর শাসন িনΝѥত করার উেгেশҝ Ѿাধীন িবচারিবভাগ ϕিতѮার
বҝবѸা করা হেয়েছ। িবচারিবভােগর শীষκেদেশ রেয়েছ সুϕীম έকাটκ। সুϕীম
έকােটκর দুইΜট িবভাগ থাকেব। হাইেকাটκ িবভাগ এবং আপীল িবভাগ। এই
আপীল িবভাগ হেব έদেশর চ ূ ড়াо আপীেলর έϠϏ। িনবκাহী িবভাগ έথেক
িবচারিবভাগেক পৃথক করারও বҝবѸা করা হেয়েছ।"
And on 30.10.1972:
"িবচারিবভাগ সїেс আর একটা কথা বলেত হয়। িনবκাহী িবভাগ έথেক
িবচারিবভাগেক পৃথক করার কাজটা সরাসিরভােব আমরা কের িদেয়িছ।
ϕѨ έতালা হেয়েছ έয, আমরা তা কিরিন। িকᅀ আমরা ϕথম িদেক
মূলনীিতর মেধҝ তা কের িদেয়িছ। তারপর, আবার যিদ একটΦ কѭ কের ১১৪
এবং ১১৫ অনুেИদ তাঁরা έদেখন, তাহেল বুঝেত পারেবন έয, এটার িবধান
করা হেয়েছ। দু' জায়গায় করলাম έকন, এ ϕѨ উঠেত পাের। ভিবষҝেত έয
আইন করা হেব, তা έযন এই িবধান অনুসাের করা হয়, έসজনҝ এই বҝবѸা।
অধѷন আদালত এবং έফৗজদারী আদালেতর মҝাΝজেϾটেদরেক আমরা
সুϕীম έকােটκর আওতায় িনেয় এেসিছ।
=13=
িনবκাহী িবভাগ έথেক িবচারিবভাগেক পৃথক করার দাবী আমােদর বቍিদন
আেগর পুরেনা দাবী। আমরা অতীেত έদেখিছ, িনবκাহী িবভােগর অধীেন
িবচারিবভাগ থাকার ফেল কীভােব তাঁেদর ϕভািবত করা হেয়েছ, কীভােব
ভয় έদখােনা হেয়েছ।
আইয়ুেবর আমেল আমার মেন আেছ, একজন έজলা-জজ সরকােরর
িবেд একটা “ইনজাংশন' িনেয়িছেলন। έসজনҝ তাঁেক সϵীেপ বদলী করা
হয়। কােজই এ έদেশর জাςত জনতা িনবκাহী িবভাগ έথেক িবচারিবভােগর
পৃথকীকরেণর দাবী তΦেলেছন।
কীভােব অতীেত িবচারিবভােগর Ѿাধীনতা খবκ করা হেয়েছ, তার বቍ নজীর
আেছ। έসজনҝ আইনজীবী ছাড়াও এ έদেশর জনসাধারণ িদেনর পর িদন
িবচারিবভাগেক িনবκাহী িবভাগ έথেক পৃথক করার দাবী জািনেয় এেসেছন।
আমরাই έস দাবী কেরিছ এবং এখন έযেহতΦ সুেযাগ έপেয়িছ, তাই έস দাবী
আমরা έমেন িনেয়িছ। দাবী-দাওয়া আমরাই। করতাম। তখন আমরা দাবী-
দাওয়া έমেন έনওয়ার সুেযাগ পাইিন। এতিদন পের আমরা এ সব দাবী-
দাওয়া পূরণ করার সুেযাগ έপেয়িছ। আমার মেন হয়, έকান-না-έকান সদসҝ
এর উপর একটা-না-একটা ϕѷাব পাস কেরেছন। তাই আজেক আমরা
έমেন িনলাম έয, িনবκাহী িবভাগ έথেক িবচারিবভাগেক পৃথক করা έহাক ।"
From these speeches of our Constitutional maker it is
unmistakably evident that ensuring the independence of judiciary and
making it separate from the executive were two primordial intentions
of our Constitution framers. In the aforementioned case laws of our
Apex Court such as “Masdar Hosen Case”, “10 Judges case”, “5th
Amendment Case”, “7th Amendment Case”, “13th Amendment
Case”, “16th Amendment Case” these primal intentions of our
Constitution Makers were pronounced recurrently.
Not only that, through the 15th Amendment of the Constitution
in the year of 2011, a separate Article was inserted regarding `Basic
Structure’ of the Constitution of Bangladesh. It is as follows:
=14=
“Basic provisions of the Constitution are not amendable
7B. Notwithstanding anything contained in article 142 of
the Constitution, the preamble, all articles of Part I, all
articles of Part II, subject to the provisions of Part IXA all
articles of Part III, and the provisions of articles relating to
the basic structures of the Constitution including article
150 of Part XI shall not be amendable by way of insertion,
modification, substitution, repeal or by any other means.”
These firm notions of the legislature was further reinforced
through inserting another Article which is as follows:
“Offence of abrogation, suspension, etc. of the Constitution
7A. (1) If any person, by show of force or use of force or by
any other un-constitutional means-
(a) abrogates, repeals or suspends or attempts or conspires
to abrogate, repeal or suspend this Constitution or any of
its article ; or
(b) subverts or attempts or conspires to subvert the
confidence, belief or reliance of the citizens to this
Constitution or any of its article,
his such act shall be sedition and such person shall be
guilty of sedition.
(2) If any person-
(a) abets or instigates any act mentioned in clause (1) ; or
(b) approves, condones, supports or ratifies such act,
his such act shall also be the same offence.
(3) Any person alleged to have committed the offence
mentioned in this article shall be sentenced with the
highest punishment prescribed for other offences by the
existing laws.”
=15=
These two Articles read with the Article 7 give us this certain
impression that `basic structures’ of the Constitution are not only
unbendable but also any attempt for deviating from such provisions is
a seditious offence.
As consultation with the CJB with primacy is basic structure as
per decision of the Apex Court, that automatically made an entry
within the purview of Article 7A read with Article 7B and 7, as laws
declared by the Appellate Division is binding under Article 111 of the
Constitution.
One thing that agitated our judicial mind is that the State did not
even challenge the decision of the Apex Court relating to the
mandatory consultation process with primacy rather executed the
same by taking both legislative actions by making necessary rules viz.
Rule 8A of the “বাংলােদশ জুিডিসয়াল সািভκস (সািভκস গঠন, সািভκস পেদ িনেয়াগ
এবং সামিয়ক বরখাѷকরণ ও অপসারণ) িবিধমালা, ২০০৭”; Rule 11 of the “বাংলােদশ
জুিডিসয়াল সািভκস (কমκѸল িনধκারণ, পেদাтিত, ছΦ Μটম
রী, িনয়ϴণ, শৃГলা-িবধান এবং চাক ু রীর
অনҝানҝ শতκাবলী) িবিধমালা, ২০০৭” and Rule 29 of the “বাংলােদশ জুিডিসয়াল সািভκস
(শৃГলা) িবিধমালা, ২০১৭” and took executive steps in accordance through
passing orders. In the said rules of the Judicial Service, the effect of
consultation with primacy of the Supreme Court has accommodated
in unambiguous terms and identical languages. For proper
appreciation of the matters of consultation and primacy exact version
of “বাংলােদশ জুিডিসয়াল সািভκস ( শৃГলা) িবিধমালা, ২০১৭ এর িবিধ-২৯” is shown
hereunder-
=16=
“২৯. সুϕীম έকােটκর পরামেশκর কাযκকরতা
(১) উপযুЅ কতৃ κপϠ সুϕীমেকােটκর পরামশκ অনুসাের এই িবিধমালায় িনধκািরত
সমেয়র মেধҝ ϕেয়াজনীয় সকল পদেϠপ ςহন কিরেব।
(২) উপ-িবিধ (১) এ বিণκত উপযুЅ কতৃ κপেϠর ϕѷাব ও সুϕীম έকােটκর পরামশκ
অিভт না হইেল έসইেϠেϏ সুϕীম έকােটκর পরামশκ ϕাধানҝ পাইেব।”
Well, subsequent to such clear-cut and patent verdict and
accomplishment by the Government i.e. the executive making
necessary rules on "consultation with primacy" and after the
enactment of the Fifteenth Amendment of the Constitution in 2011, is
there any scope at all to leave the matter of antecedent or conduct of a
Judge of the High Court Division in the hands of the executives or to
make their (executives) opinion dominant over the opinion of the CJB?
The answer is a big no.
Now, let’s recapitulate the Apex Court’s ruling on mandatory
consultation with the CJB with primacy in the `10 Judges Case’. After
examining the provisions of the Constitution along with a virtual
travel through the mind of best legal faculties of the subcontinent this
Division reached in a decision that consultation with the CJB coupled
with primacy over the opinion of the executive while appointing a
judge in the Supreme Court, is a basic structure of the Constitution.
However, the very next moment they invented a strange device that is
a dichotomized consultation process. The nature of this bifurcated
consultation process is such that it was divided in twofold stages:
1) Judicial acumen and
2) Antecedents.
=17=
Concerning judicial acumen of a potential Judge of the Supreme
Court, CJB’s opinion shall get primacy and the matters of antecedents
of such person executive shall say the final words. Well, if that is the
theory, then let’s visualize a scenario where CJB recommends a person
for appointment, but executive denied, then how it will be resolved?
There is no answer to this question in the said bifurcated consultation
process as formulated by the Division. It’s a supreme judicial impasse
and obvious result of such stand-off is that it is the executive that have
the final words and getting primacy over the opinion of the CJB, in
harsh reality.
It is absolutely undisputed that the CJB recommended both of
the appellant and the petitioner for being appointed as judge of the
Supreme Court after completion of two years tenure as Additional
Judge. What we have seen in the two matters in question is that the
executive disagreed with the CJB’s recommendation and finally both
of them were dropped from the list of appointments concerned
without knowing their faults. As there were no explanation of such
non-appointments, the persons were not able to defend themselves, in
addition, there were no such grievance mitigating mechanisms they
could resort. Even the CJB were in darkness regarding the causes of
the negation of his recommendations. These are absolute
embarrassments for the post of CJB too. These are the outcome of the
bifurcated consultation process.
=18=
In the logical fields Hegelian Dialectics is commonly accepted as
a best practice in resolving theoretical arguments. “Hegel’s dialectics”
refers to the special dialectical method of argument employed by the
19th Century German philosopher, G.W.F. Hegel. In a few words it
is an interpretive method in which the contradiction between a
proposition (thesis) and its opposition (antithesis) is resolved at a
higher level of truth (synthesis).
Like other “dialectical” methods, relies on a contradictory
process between opposing sides. Whereas Plato’s “opposing sides”
were people (Socrates and his interlocutors), however, what the
“opposing sides” are in Hegel’s work depends on the subject matter
he discusses. In his work on logic, for instance, the “opposing sides”
are different definitions of logical concepts that are opposed to one
another. In the Phenomenology of Spirit, which presents Hegel’s
epistemology or philosophy of knowledge, the “opposing sides” are
different definitions of consciousness and of the object that
consciousness is aware of or claims to know. As in Plato’s dialogues, a
contradictory process between “opposing sides” in Hegel’s dialectics
leads to a linear evolution or development from less sophisticated
definitions or views to more sophisticated ones later. The dialectical
process thus constitutes Hegel’s method for arguing against the
earlier, less sophisticated definitions or views and for the more
sophisticated ones later. Hegel regarded this dialectical method or
“speculative mode of cognition” as the hallmark of his philosophy.
=19=
If we take the CJB’s affirmative opinion as `Thesis’ and the
executive’s negative wish as `Anti-thesis’, then there must be a
`Synthesis’ for resolving such a supreme dilemma. Otherwise, that
won’t be a logical as well as scientific resolution of dispute. And such
a framework for these types of scientifically rational resolution of
difference of opinion is a sine qua non for a democratic, civilized and
modern welfare state.
As the subdivided consultation process lacks a ‘Synthesis’, it
became a half-baked one and anything half-baked is not good for
health, for taste as well.
Well, apart from epistemological aspect, ‘Synthesis’ is necessary
for some practical purposes too. For example, some objectionable or
unethical information regarding a potential judge could be received to
the end of the executive that were unnoticed by the head of the
judiciary during his/her tenure as an additional judge.
For better understanding we can study such a ‘Synthesis’
mechanism devised by one of our neighboring country India’s
Supreme Court. When there arise such type of divergence of opinion
between judiciary and executive regarding the appointment of a judge
in the High Courts and Supreme Court of India, then the executive
send back the recommendation with written explanation along with
other materials including various intelligence wings reports. Then the
matter is reconsidered by the judiciary. After such consideration, if the
judiciary reiterate the recommendation, then it is mandatory for the
=20=
executive. In this way, not only the imperative of having a ‘Synthesis’
is being fulfilled but also the primacy of the judiciary is upheld. We
can run through some of such “Reiterated Resolutions” uploaded in
the official web site of the Supreme Court of India in this web address:
https://main.sci.gov.in/collegium-resolutions.
It is to be noticed from the collegiums regulations found in the
above mentioned wed address that the `Classified Intel Reports’ were
provide to the judiciary in writing and excerpts from thereto were
disclosed publicly by the Apex Court Body for clarifications. The Apex
Court Body duly reconsidered the executive’s view based on Intel
Reports, re-discussed with the concerned body or person and then
reiterated its recommendation to the executive.
A logical and befitting ‘Synthesis’ could be as such:
If there is a disagreement between the judiciary and executive,
the reasons of such incongruity along with all the connected papers or
audio-visual substances be referred to the CJB immediately. After
getting such intimations from the executive, the CJB along with two
senior most judge of this Division shall enquire into the matters giving
parties concerned an opportunity for self defence and form an opinion
which shall be mandatory for the executive.
One thing must be borne in mind and act of functionaries of the
country is that in a state of written constitution, neither the
Government nor the Legislature or the Judiciary are Sovereign, it is
only the Constitution that is Sovereign and Supreme. Because,
=21=
constitution is the highest formal expression of the people. Article 7 of
the Constitution ordains as follows:
“Supremacy of the Constitution
7. (1) All powers in the Republic belong to the people, and
their exercise on behalf of the people shall be effected only
under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the
will of the people, the supreme law of the Republic, and if
any other law is inconsistent with this Constitution that
other law shall, to the extent of the inconsistency, be void.”
We too have a written Constitution. Our Legislature cannot
legislate in contravention of the provisions of the Constitution.
Government too cannot act violating the Constitution.
Now consider another aspect of these cases which is related with
Article 48(3). As we pointed earlier that though the President officially
appoints the Judges of the Supreme Court, as per constitutional
binding regarding the appointment of Judges of Supreme Court, the
President acts only in accordance with the advice of the Prime
Minister. We already graphically illustrated that in our Constitutional
framework Constitution only is sovereign entity not the executive or
legislature or judiciary; independence of judiciary and separation of
judiciary from executive and concerning the appointment of Supreme
Court Judges mandatory consultation with the CJB with primacy are
basic structures of our Constitution and the basic structures shall not
=22=
be amendable by way of insertion, modification, substitution, repeal or
by any other means.
In the `10 Judges case’ this Division firmly decided that:
“Therefore the expression "independence of judiciary" is
also no longer res-integra rather has been authoritatively
interpreted by this Court when it held that it is a basic
pillar of the Constitution and cannot be demolished or
curtailed or diminished in any manner accept by and
under the provision of the Constitution. We find no
existing provision of the Constitution either in Articles 98
or Article 95 of the Constitution or any other provision
which prohibits consultation with the Chief Justice.
Therefore, consultation with the Chief Justice and primacy
is in no way in conflict with Article 48(3) of the
constitution. The Prime minister in view of Article 48(3)
and 55(2) cannot advice contrary to the basic feature of the
constitution so as to destroy or demolish the independence
of judiciary. Therefore the advice of the Prime minister is
subject to the other provision of the Constitution that is
Articles 95, 98, 116 of the constitution.”
And in the operative part of the judgment of “10 Judges Case” it was
held that:
“3. Independence of judiciary affirmed and declared by the
Constitution is a basic structure of the Constitution and
cannot be demolished or diminished in any manner. There
=23=
is no provision in the Constitution either authorising the
President or for that matter the Prime Minister in view of
Article 48(3) of the Constitution to curtail or diminish such
independence.
4. Consultation with the Chief Justice with primacy of his
opinion in the matter of appointment of Judges and the
administration of judiciary is an essential part of
independence of judiciary ingrained in the very concept of
independence embedded in the principle of rule of law
and separation of judiciary from the executive and is in no
way in conflict with Article 48(3).”
There raised a question regarding Mr A.B.M. Altaf Hossain by
the learned Attorney General as to that before elevation to the
Supreme Court his aggregated tenure as a practicing Advocate in the
Supreme Court was less than 10 years in actual fact, though his date of
enrolment as an Advocate of the Supreme Court was beyond that
period. This question visualizes that before elevating him the
executive did not bother to probe his antecedents though the related
documents concerning his tenure as a practicing Advocate in the
Supreme Court were in the public domain. It indicates that he was
appointed at the whim of the executive without prior verifying his
credentials.
Appointment as a Judge in the Supreme Court is not a `hire and
fire’ type of job. It is one of the topmost appointments of the Country
from the normative view point as well as from public confidence and
requires citizen’s esteem. Therefore, vast legal experiences with
=24=
appropriate academic requirements are sine qua non for this post. This
should not be taken as an entry post in the Supreme Court. The entry
post in our judicial system is the post of Assistant Judge and
membership in District Bar Association. As per service Rules a person
can apply for such posts up to 30 years of age and in some instance
that could be 32 years and on an average 1 - 1.5+ years needed for such
a person to be appointed as a judicial officer by the Bangladesh
Judicial Service Commission. After overcoming many service related
barriers for usually 15-20 years (with some exceptional cases with less
service tenure) that person could become a District and Sessions
Judge. High Court Division of the Supreme Court usually hears
appeal, revision etc from the judgments and orders of the District and
Sessions Judges, that is, Judges of the High Court Division not only
judges the District and Sessions Judges but also have superintendence
and control over all courts and tribunals subordinate to it as per
Article 109 of the Constitution. And while Judges from the Bangladesh
Judicial Service are elevated to the Supreme Court they are to be
District Judges invariably, at least in practice, though as per Article
95(2)(b) Members of District Judiciary shall not be qualified for
appointment as a Judge unless he/she has, for not less than ten years,
held judicial office in the territory of Bangladesh.
On the other hand, in our legal system a person can be enrolled
as an Advocate of the High Court Division of the Supreme Court well
before aged 30 years. The appellant herein was enrolled in the High
=25=
Court Division at the age of almost 26. There are lots of instances
where advocates were enrolled at the High Court Division even earlier
ages than the appellant.
In such circumstances, I’m quite unable to understand how the
requirement of 10 years' practice under Article 95(2)(a) of the
Constitution suffice with simplicities the period of enrolment for 10
years instead of actual continuous or aggregate experience at the Bar.
It mandatorily be continuous or aggregate experience without fail.
Moreover, our Constitution did not ordain that it should be 10
years rather qualified with `not less than ten years’. Thus, our
Constitution makers bestowed a higher degree of discretion upon the
‘Judge Makers’ of our legal system and that responsibility have to be
discharged with utmost sincerity and responding the call of the
conscience.
The works of the judges are the art of judging a case impartially,
writing judgments and orders thereon and presiding over the court.
After 25-30 years of investing in these arts, at the fag end of their
career a judicial officer could become a Judge of the Supreme Court.
Therefore, while appointing judges having direct lack of the above
mentioned arts of judging, there age of actual experience in legal
arena, coupled with merit and other extraordinary qualities must be
borne in mind of the appointing authorities.
Now, let’s consider the case of Mr Md Farid Ahmed Shibly.
Being appointed as a Munsif, the name of the then entry post in the
=26=
judicial service, in the year of 1983 he got promotions as Sub-Judge
(now Joint District Judge), Additional District Judge and District Judge
in the year of 1994, 1999 and 2004 respectively. After serving as
District and Sessions Judge, Gazipur; Secretary, Bangladesh Judicial
Service Commission and Registrar, Supreme Court (now Registrar
General) he was elevated as an Additional Judge of the Supreme
Court.
His portfolio suggests that prior to elevation his service record
was clean and excellent on both counts of on the Bench and
administrative affairs.
In our country while a labourer are to be dismissed he has to be
served a show cause notice to explain his/her defences under the
Labour Laws. However, an Additional judge of the Supreme Court
can lost his job without knowing the reasons.
Non-confirmation of an Additional judge of the Supreme Court
as permanent Judge is of course stigmatic. Because, such a news of
non-confirmation become a national daily newspaper, TV, radio and
electronic media headlines. Everyone who read, watch and hear this
news want to know why that person was not confirmed, there must be
some problem with him etc.
Our Apex Court in many cases decided that when someone
striped with jobs he/she must get an opportunity to explain his views
before being sacked. Principle of natural justice too requires that if any
=27=
decision taken against anyone he/she must know the reasons thereto
and have the opportunity in presenting his/her defenses, if any.
The non-confirmation of Mr Md. Farid Ahmed Shibli and Mr.
A.B.M. Altaf Hossain as permanent Judge of the Supreme Court is
thus a clear violation of Principle of natural justice as well as settled
case laws concerned of the Apex Court.
I am greeeing with the opinion of the learned brothers
Borhanuddin J., M. Enayetur Rahim J., Md. Ashfaqul Islam J., Md.
Abu Zafor Siddique J. and Jahangir Hossain J., to consider the case of
the appellant by the appropriate authority.
However, I am of the view that the leave petitioner’s case may
also be considered by the appropriate authority.
J.
Obaidul Hassan, J. The Civil Appeal and both the Civil
Petitions for Leave to Appeal involving similar question of laws and
almost identical facts having been heard together are now being
disposed of by this common judgment.
Civil Appeal No. 232 OF 2014:
The instant Appeal by leave granting order dated 06.11.2014
passed by this Division in Civil Petition for Leave to Appeal No.2626
of 2014 filed against the judgment and order dated 24.09.2014 passed
=28=
by the High Court Division in Writ Petition No.7489 of 2014
summarily rejecting the Writ Petition.
The appellant as petitioner filed the Writ Petition No. 7489 of
2014 challenging non-appointment of the petitioner as Judge of the
High Court Division of the Supreme Court of Bangladesh in violation
of Article 95 of the Constitution and the principle settled by the
Appellate Division of the Supreme Court of Bangladesh in the case of
Bangladesh & Ors. vs. Md. Idrisur Rahman, Advocate & Ors.
reported in 29 BLD(AD)79 despite of the recommendation of the
Hon’ble Chief Justice of Bangladesh without any reason.
The petitioner filed the aforesaid Writ Petition stating, inter alia,
that he was a practicing Advocate of this Court and was holding
requisite qualifications to be appointed as a Judge of the High Court
Division of the Supreme Court of Bangladesh. He did his graduation
and post-graduation on Law from the University of Rajshahi securing
1st Class in LL.M. He also acquired graduation and post-graduation
diploma on Law from the UK. He was called to the Bar as a Barrister
by the prestigious Society of Lincoln’s Inn, London, U.K. He was
enrolled with the Bangladesh Bar Council as an Advocate on
06.12.1998 and was permitted to practice in the High Court Division
on 18.06.2000 and the Appellate Division on 18.05.2011. He acted as
the Deputy Attorney General for Bangladesh and as Member of the
Board of Governors of Bangladesh Open University. Considering his
=29=
such qualifications and good antecedents, the President of Bangladesh
appointed him as the Additional Judge of the Supreme Court of
Bangladesh, High Court Division along with five other Additional
Judges under Article 98 of the Constitution, vide notification
No.10.00.0000.128.011.010.2012-816 dated 13.06.2012. Accordingly, he
took oath of office on 14.06.2012 and had been functioning as Judge
since then until his name was dropped by the impugned action.
During this period, he delivered numerous judgments which have
been highly acclaimed by the Bar and the Bench. Before expiry of two
years’ tenure of Additional Judge, the petitioner along with five other
Additional Judges, submitted ten judgments authored by each of them
as required by the Honourable Chief Justice of Bangladesh and the
said judgments were distributed among the senior most Judges of the
Appellate Division for their opinion. On being satisfied with the
performance and integrity and all other aspects of all the six
Additional Judges including the petitioner the Honourable Chief
Justice recommended all of them for appointment as permanent
Judges of the High Court Division under Article 95 of the Constitution
and such fact of recommendation by the Chief Justice had been widely
published in the daily newspapers. However, the name of the
petitioner was dropped from the list of permanent Judges, although
other five Additional Judges were duly appointed by the President,
vide Gazette Notification No.10.00.0000.128.011.010.2012-472 dated
09.06.2014. Thereafter, the petitioner tried his best to know the reasons,
=30=
but could not know anything, though, pursuant to the said
appointment notification, his colleague Additional Judges had been
sworn in as permanent Judges by the Honourable Chief Justice and
have been functioning as such in the High Court Division. The
executive most arbitrarily dropped the name of the petitioner from the
list of six Additional Judges even after recommendation by the
Honourable Chief Justice and the said impugned order affected the
very independence of the Judiciary, which is one of the basic
structures of the Constitution as well as the same has labelled a stigma
with the integrity and quality of the petitioner. In such a situation, the
writ petitioner moved before the High Court Division.
Upon hearing the Writ Petition, the High Court Division rejected
the same summarily by judgment and order dated 24.9.2014.
Against the judgment and order dated 24.09.2014 passed by the
High Court Division the writ petitioner filed the Civil Petition for
Leave to Appeal No.2626 of 2014 and after hearing the parties this
Division granted leave by an order dated 06.11.2014 and hence the
instant Civil Appeal.
Civil Petition for Leave to Appeal No. 602 OF 2017:
The Civil Petition for Leave to Appeal is directed against the
judgment and order dated 12.02.2017 passed by the High Court
Division in Writ Petition No. 1948 of 2017.
=31=
The case of the petitioner in Civil Petition for Leave to Appeal
No. 602 of 2017 is that the petitioner is a law abiding citizen and
permanent resident of Bangladesh. He had obtained B.S.C. Degree
from Sunamgonj College under the University of Chittagong in the
year 1977. He had obtained LL.B. Degree from the University of
Dhaka in 1981. Subsequently, he was appointed as Munsif by the
Government of Bangladesh vide Memo dated 5th July, 1983 and his
service was confirmed as of his joining date on 17.07.1983. Thereafter,
he was promoted to the post of Sub-Judge from the post of Assistant
Judge on 31.05.1994 and then he was appointed as the Assistant
Sessions Judge. Later on, he was promoted to the post of Additional
District & Sessions Judge and subsequently he was appointed as the
Additional Registrar, Appellate Division, Supreme Court of
Bangladesh vide Memo dated 15.01.2002. Thereafter he was promoted
to the post of District Judge and posted in situ. On 15th May, 2008, the
petitioner was appointed as the District & Sessions Judge, Gazipur.
Subsequently, the petitioner was transferred to and posted on
deputation as the Secretary, Bangladesh Judicial Service Commission
Secretariat vide Memo dated 05.07.09. Thereafter the petitioner was
appointed as the Registrar, Supreme Court of Bangladesh and served
there until his elevation as an Additional Judge of the Supreme Court.
The petitioner has performed many important responsibilities at
different positions throughout his long career. Having been satisfied
with his academic and professional performance, the Honourable
=32=
President of the People’s Republic of Bangladesh after consultation
with the Honorable Chief Justice of Bangladesh appointed him as an
Additional Judge of the High Court Division of Supreme Court of
Bangladesh along with 9 (nine) other Additional Judges under Article
98 of the Constitution of the People’s Republic of Bangladesh for a
period of two years vide notification dated 9th February, 2015 and he
was sworn in by the Honourable Chief Justice of Bangladesh on
12.02.2015 as an Additional Judge of the Supreme Court of
Bangladesh. After appointment as Additional Judge, he rendered his
service most honestly, sincerely and diligently to the full satisfaction of
the Chief Justice of Bangladesh and others. The petitioner delivered
many substantial judgments in previous two years, which was
appreciated by many. During his tenure as an Additional Judge none
raised any objection to his integrity and merit whatsoever. As an
Additional Judge the petitioner performed his function as a second
judge in the Division Benches of High Court Division. He, as a second
judge, contributed in different jurisdictions and also to the legal arena
in the Country. He had never compromised justice and always upheld
unimpeachable integrity. Having been satisfied on the performance
and all other requisite qualifications, the Chief Justice of Bangladesh
recommended the name of the petitioner as well as those of the eight
others to the Honourable President for appointment as the Judges of
the High Court Division after forming opinion on their suitability,
integrity and merit. The Hon’ble President, however, appointed eight
=33=
others under Article 95 of the Constitution except the petitioner
without communicating any reason to the Chief Justice. The
appointment of the eight Judges had been published vide Notification
dated 7th February, 2017. A news item was published on 9th February,
2017 in the daily newspaper titled ‘Jugantor’ in respect of confirmation
of appointment of eight Additional Judges in the High Court Division.
The said news item also reported that the Honourable Chief Justice of
Bangladesh recommended the name of the petitioner along with eight
others Additional Judge to the Honourable President for appointment
as a Judge of the High Court Division of the Supreme Court of
Bangladesh under Article 95 of the Constitution. Despite such
recommendation of the Chief Justice, the Government has not the
petitioner as Judge of the High Court Division. Finding no other
efficacious remedy the petitioner filed the Writ Petition No. 1948 of
2017. The petitioner by filing the Writ Petition No. 1948 of 2017 before
the High Court Division has called in question the legality and
constitutionality of dropping him from the list of the Additional
Judges to be appointed permanently as Judges of the High Court
Division of the Supreme Court of Bangladesh under Article 95 of the
Constitution and the principle settled by this Division in the case of
Bangladesh Vs. Idrisur Rahman 29 BLD (AD) 79 despite the
recommendation of the Honourable Chief Justice of Bangladesh
without any reason.
=34=
Upon hearing the High Court Division disposed of the Writ
Petition No. 1948 of 2017 with some observations by judgment and
order dated 12.02.2017 and hence the Civil Petition for Leave to
Appeal No. 602 of 2017.
Mr. Probir Neogi along with Mr. Momtazuddin Fakir, Mr.
Motahar Hossain, Mr. M. Sayed Ahmed all senior Advocates and Mr.
Mahbub Shafique, Ms. Anita Ghazi Rahman, Ms. Suvra Chakravorty,
Mr. Manzur-Al-Matin, Mr. Imranul Kabir and Mr. Khandaker Reza-E-
Raquib, all Advocates appearing for the appellant in Civil Appeal No.
232 of 2014 contended that the appellant had been denied
confirmation in clear and flagrant violation of the provisions of the
Constitution and law declared by the Appellate Division inasmuch as
there is an expressed provision in Article 95(1) of the Constitution that
the Judges of the Supreme Court of Bangladesh shall be appointed by
the Hon’ble President of the People's Republic of Bangladesh after
consultation with the Hon’ble Chief Justice and the Chief Justice
having recommended the appellant as Judge of the High Court
Division for confirmation and appointment under Article 95, the
dropping of the name of the appellant without any cogent reason is
totally unconstitutional. The learned Counsels for the appellant
contended next that by the illegal action of the executive the
independence of the judiciary has been diminished and since the
independence of the Judiciary is a basic structure of our Constitution
and under Article 7B of the Constitution it cannot be amended by the
=35=
parliament and there being no provision in the Constitution
authorizing the President under Article 48(3) to curtail or diminish the
independence of judiciary, non-appointment of the appellant ignoring
the recommendation/opinion of the Chief Justice was an act of
flagrant violation of the basic structure of the Constitution. The
learned Counsels for the appellant argued next that no question has
ever been raised against the antecedents of the appellant rather having
found the performance of appellant satisfactory as an Additional
Judge, the Chief Justice has recommended the appellant for
confirmation/appointment under Article 95 of the Constitution
inasmuch as the consultation process being initiated by the executive
whose opinion in the matter of antecedents being already there and
the Chief Justice in the process of consultation had the benefit of
examining the opinion of the executive and since the Chief Justice
recommended the appellant for appointment disregarding/overruling
such opinion, there is no scope on the part of the executive to drop the
name of the appellant from the list of the Judges to be appointed
under Article 95. Thus, the action of the executive denying
confirmation/appointment of the appellant is wholly unconstitutional,
arbitrary and naked interference in the affairs of the judiciary
inasmuch as an act done without any lawful authority. The learned
Counsels for the appellant submitted further that under Article 95(1)
of the Constitution since the judges of the Supreme Court shall be
appointed by the President after consultation with the Chief Justice,
=36=
the recommendation of the Chief Justice shall get primacy over the
opinion of the executive in the matter of appointment of Judges,
therefore, the executive was under serious constitutional obligation
not to drop the name of the appellant but to confirm him pursuant to
the recommendation of the Chief Justice who is the best person to
judge and assess the ability and competence of the appellant and the
appellant has maintained highest professional standard as an
Additional Judge and delivered some brilliant judgments as an author
Judge, therefore, the Appeal is liable to be allowed. The learned
Counsels submitted next that the executive by not appointing the
appellant after recommendation of the Chief Justice has reduced and
diminished the power, position and role of the Chief Justice inasmuch
as it was an act of undermining the authority of the head of the
judiciary as well since in the impugned judgment of the High Court
Division there is an observation that no way out was given in the Ten
Judges’ case when the question of difference of opinion between the
Chief Justice and the executive would arise, therefore to resolve the
said issue and also to find a way out in such situation it is essential to
allow the instant Appeal by reviewing the Judgment of the Ten
Judges’ case. The learned counsels for the appellant fortified their
arguments by putting reliance on some case laws decided in the
Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52
DLR (AD) 82; S.P. Gupta Vs. Union of India (UOI) and ors, AIR 1982
SC 149; Raghib Rauf Chowdhury Vs. Government of Bangladesh, 69
=37=
DLR 317; Bangladesh and others Vs. Idrisur Rahman, Advocate and
others, 29 BLD (AD) 97 etc.
Mr. Manzill Murshid, learned senior Advocate appearing for the
petitioner in Civil Petition for Leave to Appeal No. 602 of 2017
submitted that the petitioner being a member of Bangladesh Judicial
Service served from 17.7.1983 to 10.2.2015 holding different posts and
at the fag-end of the service he had been the Registrar of Bangladesh
Supreme Court wherefrom he was appointed as an Additional Judge
of the High Court Division under Article 98 of the Constitution and
took oath on 12th February, 2015. Although all Additional Judges who
had been appointed along with the petitioner were confirmed and
appointed as Judge of the High Court Division the petitioner was
dropped from the list vide notification dated 07.02.2017 of the Ministry
of Law, Justice and Parliamentary Affairs. The learned senior Counsel
contended next that after issuance of the impugned notification dated
07.02.2017 the petitioner came to know from a news caption of ‘The
Daily Jugantor’ published on 09.02.2017 that the then Chief Justice
recommended all Additional Judges including the petitioner for
appointment under Article 95 of the Constitution but in violation of
the constitutional provisions the executive dropped the petitioner
without showing any cogent reason. The learned senior Counsel
contended next that according to Article 95(1) of the Constitution, a
Judge shall be appointed by the President after consultation with the
Chief Justice and in the instant case the Honourable Chief Justice
=38=
recommended the name of the petitioner along with eight others but
disregarding that recommendation of the Chief Justice, the petitioner
alone was dropped out which is a clear violation of the constitutional
provision of Article 95. Therefore, the petitioner is entitled to be
appointed as a Judge of the High Court Division. The learned senior
Counsel submitted next that the process by which the Judges of the
Supreme Court are appointed, is the key to both reality and perception
of the independence of judiciary and the whole constitutional scheme
is to shut the doors of interference against the executive under lock
and key and therefore the prudence demands that after shutting the
door of interference the key should not be left in possession of the
executives. Disregarding the recommendation of the Chief Justice by
the executive means snatching the very key of the door of interference
by the executive away from the control of the judiciary which is
tantamount to a denial of the very concept and basic principle of the
independence of judiciary. The learned senior Counsel for the
petitioner argued next that according to Article 48(3) of the
Constitution in exercise of all functions, save only that of appointing
the Prime Minister and the Chief Justice, the President shall act in
accordance with the advice of the Prime Minister. Under Article 95 of
the Constitution in appointing Judges of both Division of the Supreme
Court, the President shall consult the chief Justice and act in
accordance with the advice of the Prime minister. In the Ten Judges’
case it is held that consultation with the Chief justice and primacy of
=39=
the opinion of the Chief Justice is in no way in conflict with Article
48(3) of the Constitution. In view of Articles 48(3) and 55(2) the Prime
Minister cannot advice the President anything contrary to the basic
principle and structure of the Constitution. The independence of
judiciary being the basic principle and structure of our Constitution,
consultation with the Chief Justice in the matter of appointment of
Judges with its primacy should be considered as an essential part
thereof. After the decision of Ten Judges’ case Article 95 was amended
by way of 15th Amendment in 2011 and it becomes imperative for the
executive to consult the Chief Justice in appointing Judge of the High
Court Division and in this regard the opinion of the Chief Justice will
get primacy. The learned senior Counsel contended next that it is held
in the landmark Masder Hossain’s case ( 52 DLR(AD) 82) that in
exercising control and discipline of persons employed in the judicial
service and magistrates exercising judicial functions under article 116
the views and opinion of the Supreme Court shall have primacy over
those of the executive. The Government did not even challenge the
above decision concerning the consultation with primacy. The learned
senior Counsel contended further that in the Ten Judges’ case (17
BLT(AD) 231) it has been observed that the term ‘consultation’ was
considered in Masdar Hossain’s case in the light of Article 116 of the
Constitution but nevertheless the same principle all the more applies
in the matter of appointment of Judges of the Supreme Court under
Articles 98 and 95 of the Constitution because without the
=40=
independence of the Supreme Court there cannot be any
independence of the subordinate Courts and minus the consultation
and primacy the separation of judiciary from the executive will be
empty words. The learned senior Counsel contended next that the
petitioner came across 32 years holding different posts in the
subordinate judiciary during which all matters including antecedents
had been subject to scrutiny and supervision of the Supreme Court
under Articles 109, 116, 116A of the Constitution. During the
petitioner’s such long career in the judiciary he did never ever face any
proceeding or complaint on matter of discipline or antecedent. There is
no statement from the executive that the government ever consulted
the Chief Justice on any matter of antecedent of the petitioner. Thus,
on any vague plea of antecedent, it would be unjust to deprive the
petitioner of his legitimate right or expectation of being appointed
under Article 95 of the Constitution. The learned senior Counsel
contended further that the petitioner was initially appointed as an
Additional Judge under Article 98 of the Constitution and at that time
the President on all areas including antecedents and judicial
performance consulted the Chief Justice. At that time no adverse
report or allegation revealed from the petitioner’s service record or
conduct as a result he was appointed as an Additional Judge under
Article 98 of the Constitution. In such a situation, in the process of
appointment under Article 95 of the Constitution the petitioner was
not supposed to be subjected again to any further scrutiny what so
=41=
ever. The learned senior Counsel further submitted that the petitioner
as an Additional Judge under Article 98 had performed all judicial
works satisfactorily and since the Honourable Chief Justice had
recommended his name along with eight others for appointment
under Article 95, he has, therefore, not only a legitimate expectation
rather acquired a constitutional right for being confirmed and
appointed under Article 95 of the Constitution with effect from
07.02.2017 or 11.02.2017 because of the fact that such convention being
followed in this country for more than over last 60 years. The learned
senior Counsel, in fine, submitted that for doing complete justice
under Article 104 of the Constitution the executive is required to be
directed to appoint the petitioner as a Judge of the High Court
Division within a specific deadline giving all arrear remunerations,
benefits and privileges with service-continuity with effect from
11.02.2017.
Per contra, Mr. A.M. Amin Uddin, Attorney General with Mr.
Mohammad Mehedi Hassan Chowdhury, Additional Attorney
General, Mr. Md. Mojibur Rahman, Assistant Attorney General, Mr.
Mohammad Saiful Alam, Assistant Attorney General and Ms.
Tamanna Ferdous, Assistant Attorney General appearing for the
respondents in all the cases strenuously opposed the submissions
made on behalf of the appellant and the petitioner. They submitted
that in the case of Bangladesh and others Vs. Md. Idrisur Rahman and
others reported in 29 BLD (AD) 79 this Court having held that the
=42=
opinion of the executive will have dominance in the matter of
antecedent of a Judge of the High Court Division and in the instant
case considering the antecedent of the appellant the Honourable
President of Bangladesh has not appointed him as a permanent Judge
of the High Court Division and the same does not require any
interference by this Court as well. The learned Attorney General along
with Deputy Attorney General and Assistant Attorney General for the
respondents contended next that the Honourable President appointed
the appellant in the year 2012, the Honourable President having not
appointed him as permanent Judge in the year 2014, and in the
meantime there has been no change of Government, it cannot be said
that the appellant was victim of political reasons and there is nothing
to show that for an ulterior reason the appellant has not been
appointed as a permanent Judge and as such there is no merit of this
Appeal. The learned Attorney General argued next that Article 95(2)(a)
of the Constitution requires that to be elevated in the Bench an
advocate must have 10 years’ practicing experience in the Supreme
Court of Bangladesh. By referring Al- Jehad Trust case reported in
PLD 1996 SC 324 the learned Attorney General submitted that the
requirement of 10 years’ practice under Article 193(2)(a) of the
Constitution of Pakistan relates to the experience/ practice at the Bar
and not simpliciter the period of enrolment. By referring the Mahesh
Chandra Gupta’s case reported in (2009) 8 SCC 273 the learned
Attorney General submitted next that the decision of Indian Supreme
=43=
Court passed in the aforesaid case is not applicable in the case in hand.
The facts of the instant case is totally distinguishable from the Mahesh
Chandra Gupta’s case. In the case of Mahesh Chandra Gupta, the
petitioner prayed for issuance of Quo waranto directing an Additional
Judge of Allahabad High Court (Respondent No. 3 of Mahesh
Chandra Gupta’s case) for showing cause upon what authority the
respondent No. 3 was holding his office and to justify the
constitutionality of his appointment as a judge of the Allahabad High
Court. In the said case the issue was that, if a person after having
remained an advocate for some time, ceases to practice and employs
himself for earning, and thereafter holds an office of a Member of the
Tribunal, the period of his holding the office as a Member of Tribunal
cannot be computed or taken into account with the aid of Explanation
(aa) to Article 217(2)(b) of the Constitution of India. Applying the
principles with regard to entitlement to practice and computability of
the period during which respondent No. 3 has worked in ITAT
(Income Tax Appellate Tribunal), the Supreme Court of India held that
he stood qualified for appointment as a Judge of the Allahabad High
Court. Therefore, the decision of Mahesh Chandra Gupta’s Case is not
applicable in the instant Civil Appeal. The learned Attorney General
contended next that from the Annexures- A, A-1 & A-2, it appears that
after being enrolled in the High Court Division of the Supreme Court
of Bangladesh on 18.06.2000, the appellant stayed in the United
Kingdom (UK) at least till 13.10.2005 on which date he was called to
=44=
the Bar of England and Wales. Therefore, it is apparent that after the
date of enrolment in the High Court Division on 18.06.2000 the
appellant stayed in UK for a period of minimum 5(five) years till
13.10.2005. Accordingly, the appellant was elevated in the Bench as an
Additional Judge of the Supreme Court of Bangladesh on 13.06.2012
having only 7 (seven) years’ of practice in the High Court Division
instead of 10 years’ practicing experience. Apart from this the
appellant did not mention anywhere in the Writ Petition when he
returned back in Bangladesh and started practice as an advocate in the
Supreme Court of Bangladesh. Last but not least, the learned learned
Attorney General argued that according to Article 48(3) of the
Constitution the Honourable President is required to act as per advice
of the Honourable Prime Minister regarding the appointment of
Judges in the High Court Division and the communication between
the Honourable Prime Minister and the Honourable President
regarding appointment of Judge is privileged one and it cannot be
inquired into before any court of law and hence, after consultation
with the Honourable Chief Justice as per Article 95 of the Constitution
when the Honourable President takes advice from the Honourable
Prime Minister and takes decision as per the direction of the
Honourable Prime Minister then as per Article 48(3) the whole process
of appointing/confirming Judges becomes a privileged one and the
same cannot be inquired into before any court of law and as such the
=45=
Civil Appeal and other Civil Petitions for leave to Appeal are liable to
be dismissed.
At this juncture, let us have a brief overview of the constitutional
scheme of our country as regards appointment of Judges of the
Supreme Court.
Article 98 of the Constitution empowers the President to appoint
Additional Judges to the Supreme Court for a period not exceeding
two years. Article 98 provides that-
“98. Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any temporary
period:
Provided that nothing in this article shall prevent a person
appointed as an Additional Judge from being appointed as
a Judge under article 95 or as an Additional Judge for a
further period under this article.”
Article 95(1) of our original Constitution enshrines that-
“95(1) The Chief Justice shall be appointed by the
President, and the other Judges shall be appointed by the
President after consultation with the Chief Justice.”
Thus, Article 95(1) of our original Constitution had the provision
requiring the President to consult with the Chief Justice in case of
=46=
appointment of Judges of the Supreme Court. Later, through the 4th
Amendment Article 95(1) was amended omitting the provision of
requirement of consultation with the Chief Justice while appointing
the Judges of the Supreme Court. Even though through judicial
pronouncement in various cases including the case of Bangladesh and
others vs. Md. Idrisur Rahman, Advocate & others, reported in 29
BLD(AD) 79 (popularly known as Ten Judges’ Case) in view of the
longstanding and consistent constitutional convention and practice the
requirement of consultation with the Chief Justice was established.
Again, with the enactment of 15th Amendment to the Constitution, the
provision of Article 95(1) contained in the original Constitution had
been restored requiring the President to appoint the Judges of the
Supreme Court in consultation with the Chief Justice. It is apparent
from the record that the cause of action in the case in hand arose on
09.06.2014 while 15th Amendment was enacted in the year 2011.
Therefore, it is settled position of law that in case of appointment of
Judges of the Supreme Court by the President the requirement of
consultation with the Chief Justice is essential and in the case in hand
the provision of consultation with the Chief Justice being essential
there is no controversy as regards doing the same. In the above
backdrop we do not dilate our discussion on the issue whether the
consultation with the Chief Justice is imperative or not.
=47=
Under the constitutional scheme of our country the President is
the Constitutional head of the State and of the executive government.
Article 48 of the Constitution lays down that-
“48.(2) The President shall, as Head of State, take
precedence over all other persons in the State, and shall
exercise the powers and perform the duties conferred and
imposed on him by this Constitution and by any other law.
(3) In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
article 95, the President shall act in accordance with the
advice of the Prime Minister:
Provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
So, according to Article 48(3) of the constitution, except in the
case of appointing the Prime Minister and the Chief Justice, the
President, while exercising, all his functions shall act as per the advice
of the Prime Minister. According to Article 48(3) of the constitution the
question whether any, and if so what, advice has been tendered by the
Prime minister to the President shall not be inquired into by any court.
In the democratic form of government existing in our country, the
President is normally vested with the executive power of the State
which, in fact, is to be exercised by the Council of Ministers since the
President is to act on the advice of the ministers led by the Prime
=48=
Minister. In this regard Article 55(1)(2) of the Constitution is relevant
to extract below:
“55. (1) There shall be a Cabinet for Bangladesh having the
Prime Minister at its head and comprising also such other
Ministers as the Prime Minister may from time to time
designate.
(2) The executive power of the Republic shall, in
accordance with this Constitution, be exercised by or on
the authority of the Prime Minister.”
Article 52 lays down that the President may be impeached on a
charge of violating this Constitution or of grave misconduct, preferred
by a notice of motion signed by Majority of the total members of
Parliament in the manner prescribed in Article 52. The president is
thus duty bound to act in consultation with the Prime Minister. In
view of the above discussion it is evident that while appointing the
Judge of the Supreme Court under Articles 95(1) and 98 the president
is to consult the Prime Minister for his/her advice as well as the Chief
Justice. Now an issue arises that which consultation between the two
functionaries will get the primacy.
In the case of S.P. Gupta and others vs. President of India and
others, reported in AIR1982 SC 149, P.N. Bhagwati, J. observed in the
following:
“29..........................................................................If we look at
the raison detre of the provision for consultation enacted in
cl.(1) of Art. 217, it will be obvious that the opinion given
=49=
by the Chief Justice of the High Court must have at least
equal weight as the opinion of the Chief Justice of India,
because Ordinarily the Chief Justice of the High Court
would be in a better position to know about the
competence, character and integrity of the person
recommended for appointment as a Judge in the High
Court. The opinion of the Governor of the State, which
means the State Government would also be entitled to
equal weight, not in regard to the technical competence of
the person recommended and his knowledge and
perception of law which the Chief Justice of the High
Court would be the proper person to express an opinion,
but in regard to the, character and integrity of such person,
his antecedents and his social philosophy and value-
system. So also the opinion of the Chief Justice of India
would be valuable because he would not be affected by
caste, communal or other parochial considerations and
standing outside the turmoil of local passions and
prejudices, he would be able to look objectively at the
problem of appointment. There is therefore, a valid and
intelligible purpose for which the opinion of each of the
three constitutional functionaries is invited before the
Central Government can take a decision whether or not to
appoint a particular, person as a Judge in a High Court.
The opinion of each of the three constitutional
functionaries is entitled to equal weight and it is not
possible to say that the opinion of the Chief Justice of India
must have primacy over the opinions of the other two
constitutional functionaries. If primacy were to be given to
the opinion of the Chief Justice of India, it would, in effect
and substance, amount to concurrence, because giving
=50=
primacy would mean that his opinion must prevail over
that of the Chief Justice of the High Court and the
Governor of the State, which means that the Central
Government must accept his opinion. But as we pointed
out earlier, it is only consultation and not concurrence of
the Chief Justice of India that is provided in cl.(1) of
Art.217. When, during debates in the Constituent
Assembly, an amendment was moved that the
appointment of a Judge of a High Court or the Supreme
Court should be made with the concurrence of the Chief
Justice of India, Dr. B.R. Ambedkar made the following
comment which is very significant:
“With regard to the question of the concurrence of
the Chief Justice, it seems to me that those advocate
that proposition seem to rely implicitly both on the
impartiality of the Chief Justice and the soundness of
his judgment. I personally feel no doubt that the
Chief Justice is a very eminent person. But after all,
the Chief Justice is a man with all the failings, all the
sentiments and all the prejudices which we as
common people have; and I think, to allow the Chief
Justice practically a veto upon the appointment of
judges is really to transfer the authority to the Chief
Justice which we are not prepared to vest in the
President or the Government of the day. I, therefore,
think that that is also a dangerous proposition.”
It is, therefore, clear that where there is difference of opinion
amongst the constitutional functions regarding the appointment of a
Judge to a High Court. The opinion of none of the constitutional
functionaries is entitled to primacy but after considering the opinion of
=51=
each of the constitutional functionaries and giving it due weight, the
Central Government is entitled to come to its own decision as to which
opinion It should accept in deciding whether to appoint the person as
a Judge. Also, where a Judge of the Supreme Court is to be appointed,
the Chief Justice of India is required to be consulted. However, again,
it is not concurrence, but only consultation and the Central
Government is not bound to act in accordance with the opinion of the
Chief Justice of India. The ultimate power of appointment rests with
the Central Government and that is in accordance with the
constitutional practice prevailing in all democratic countries. Even in
the United Kingdom, a country from which we have inherited our
system of administration of justice and to which many of our
anglophiles turn with reverence for inspiration and guidance, the
appointment of High Court Judges is made by or on the advice of the
Lord Chancellor, who is a member of the Cabinet while appointments
to the Court of appeal and the House of Lords and to the offices of
Lord Chief Justice Master of the Rolls and President of the family
Division are made on the advice of the Prime Minister after
consultation with the Lord Chancellor. Thus, the appointment of a
Judge belonging to the higher echelons of judicial service is wholly in
the hands of the Executive. So also, in the commonwealth countries
like Canada, Australia and New Zealand, the appointment of High
Court and Supreme Court Judges is made by the Executive. This is, of
course, not an ideal system of appointment of Judges, but the reason
=52=
why the power of appointment of Judges is left to the Executive
appears to be that the Executive is responsible to the Legislature and
through the Legislature, it is accountable to the people, who are
consumers of justice. The power of appointment of Judges is not
entrusted to the Chief Justice of India or to the Chief Justice of a High
Court because they do not have any accountability to the people and
even if any wrong or improper appointment is made, they are not
liable to account to anyone for such appointment. The appointment of
a Judge of a High Court or the Supreme Court does not depend
merely upon the professional or functional suitability of the person
concerned in terms of experience or knowledge of law though this
requirement is certainly important and vital and ignoring it might
result in impairment of the efficiency of administration of justice, but
also on several other considerations such as honesty, integrity and
general pattern of behaviour which would ensure dispassionate and
objective adjudication with an open mind, free and fearless approach
to matters in issue, social acceptability of the person concerned to the
high Judicial office in terms of current norms and ethos of the society,
commitment to democracy and the rule of law, faith in the
constitutional objectives indicating his approach towards the Preamble
and the Directive Principles of State Policy, sympathy or absence
thereof with the constitutional goals and the needs of an activist
judicial system. These various considerations, apart from professional
and functional suitability, have to be taken into account while
=53=
appointing a Judge of a High Court or the Supreme Court and it is
presumably on this account that the power of appointment is
entrusted to the Executive.”
In the case of S.P. Gupta, S.M.F.Ali, J. observed in the following:
“Independence of judiciary is doubtless a basic structure of
the constitution, but the said concept of independence has
to be confined within the four corners of the Constitution
and cannot go beyond the Constitution. While this
absolute judicial power has been conceded by the
Constitution to the judiciary, a certain amount of executive
control has already been vested in the higher judiciary in
respect of the subordinate judiciary. This executive power
is not absolute and has to be exercised in consultation with
the CJI in the case of appointment of Supreme Court
Judges, as also in the consultation with the CJI and the
Governor of the States concerned in case of the
appointment of Chief Justice of the High Courts,–in the
case of appointment of High Court Judge, the Chief Justice
of the concerned High Court is also to be consulted. The
consultation contemplated by the Constitution must be full
and effective and by convention the view of the concerned
CJ and CJI should always prevail unless there are
exceptional circumstances which may impel the President
to disagree with the advice given by the constitutional
authorities. Thus, in fine, the doctrine of separation of
power so far as our Constitution is concerned, reveals an
artistic, blending and an adroit admixture of judicial and
executive functions.
In the American Constitution by virtue of the fact that the
entire judicial power is vested in the Supreme Court or
=54=
other courts, the appointments have to be made by the
Supreme Court, unlike the provisions of Indian
Constitution where appointments are to be made by the
President in consultation both with judicial and executive
authorities as indicated above. Therefore, in expounding
the concept of separation, the essential distinctive features
which differentiate Indian Constitution from the American
Constitution must be kept in mind.
So far as framers of Indian Constitution are concerned,
they had deliberately rejected the theory of complete
insulation of the judicial system from the executive control.
The Indian Constitution has devised a wholesome and
effective mechanism for the appointment of judges which
strikes a just balance between the judicial and executive
powers so that while the final appointment vests in the
highest authority of the executive, the power is subject to a
mandatory consultative process which by convention is
entitled to great weight by the President. Apart from these
safety valves, checks and balances at every stage, where
the power of the President is abused or misused or violate
any of the constitutional safeguards it is always subject to
judicial review. The power of judicial review, which has
been conceded by the Constitution to the judiciary, is the
safest possible safeguard not only to ensure independence
of judiciary but also to prevent it from the vagaries of the
executive.
The Indian Constitution fully safeguards the independence
of Judges as also of the judiciary by a three-fold method-
(1) by guaranteeing complete safety of tenure to
judges except removal in cases of incapacity or
misbehaviour which is not only a very complex
=55=
and complicated procedure but a difficult and
onerous one.
(2) by giving absolute independence to the Judges to
decide the cases according to their judicial
conscience without being influenced by any other
consideration and without any interference from
the executive.
(3) so far as the subordinate judiciary is concerned
the provisions of Arts. 233-236 vest full and
complete control over them in the High Court.
In the case of S.P. Gupta, Desai, J. also observed in the following:
(4)
“Independence of judiciary under the Constitution has to
be interpreted within the framework and the parameters of
the Constitution. There are various provisions in the
Constitution which indicate that the Constitution has not
provided something like a ‘hands off attitude’ to the
judiciary. The power of appointment of High Court Judges
and the Judges of the Supreme Court vests in the President
and the President being a constitutional head he is
constitutionally bound to act according to the advice of the
Council of Ministers. Arts. 32(3), 133(3), 138, 139, 140, 130,
230, 231, 237, 225, 126, 127(1), 128 confer power on other
constitutional institutions such as the executive which
when it acts within the limits of power will have a direct
impact on the functioning of the judiciary. This conspectus
of articles, not meant to be exhaustive, do indicate that
Parliament has power to regulate Court’s jurisdiction.
Undoubtedly judiciary, the third branch of the
Government cannot act in isolation. They are ensured total
freedom, of course, after entering the office, from any overt
=56=
or covert pressure or interference in the process of
adjudicating causes brought before them and to this end
they are ensured tenure, pay, pension, privileges and
certain basic conditions of service. The judiciary like any
other constitutional instrumentality has, however, to act
towards attainment of constitutional goals. The
independence of judiciary is not to be determined in all its
ramifications as some a priori concept but it has to be
determined within the framework of the Constitution.
True, that the thrust is to ensure that adjudications are
untrammeled by external pressures or controls and
independence of judiciary under the Constitution is
confined to the adjudicatory functions of the Courts and
tribunals and they are insulated from executive control in
that behalf. It is not unlikely that the total insulation may
breed ivory tower attitude. It is not as if judicial
independence is an absolute things like a brooding
omnipresence. One need not too much idolise the
independence of judiciary so as to become counter-
productive.
While undoubtedly political packing must be abhorred, in
putting the independence of judiciary on pedestal one
cannot lose sight of the fact that the judiciary must keep
pace with the changing mores of the day, its decision must
be informed by values enshrined in the Constitution, the
goals set forth in the fundamental law of the land, peoples’
yearning desire for a chance for the better and the
promised millennium. An activist role in furtherance of the
same is a sine qua non for the judiciary. If value packing
connotes appointment of persons otherwise well qualified
as required by the constitution but having the additional
=57=
qualification of awareness of the high priority task of
eradication of poverty removal of economic disparity,
destroying the curse of illiteracy, ignorance, exploitation,
feudal overlordship, coupled with conscious commitment
to administering socio-economic justice, establishment of a
just social order, an egalitarian society, then not only the
value packing is not to be frowned upon nor thwarted by
entrenched establishment prone people but it must be
advocated with crusader’s zeal. And judiciary cannot
stand aloof and apart from the mainstream of society. This
will ensure its broad accountability to injustice ridden
masses and therefore it is not unnatural that the status
quoists can enter their caveat to value packing, but which
does not commend. While appointing each individual the
constitutional philosophy of each individual ought to be a
vital consideration and if this is labelled as value packing,
it is neither unethical nor unconstitutional nor a weapon to
strike at independence of judiciary.”
In the Ten Judges’ Case this Division passed by the following
short order on 2ndMarch 2009:
“For reasons to be recorded later in details, we hereby pass
the following short order: -
1. In the matter of appointment of Judges under Articles 98
and 95 of the Constitution the Convention of consultation
having been recognized and acted upon has matured into
Constitutional Convention and is now a Constitutional
imperative.
2. Such consultation is inherent in our Constitutional
scheme and is ingrained in the principle of independence
=58=
of judiciary being essentially the basic structure of our
Constitution embedded in the principle of Rule of Law.
3. In the matter of selection of the Judges the opinion of the
Chief Justice should be dominant in the area of legal
acumen and suitability for the appointment and in the area
of antecedents the opinion of the executive should be
dominant. Together, the two should function to find out
the most suitable candidates available for appointment
through a transparent process of consultation.
4. Oath under Articles 98 and 95 of the Constitution are
separate and distinct and are required to be administered
and made before one enters upon an office and a Judge
will be deemed to have entered upon the office
immediately after he makes the Oath and not before, in
both cases............................................”
Recently an Article has been published in a foreign law journal
namely, ‘Mazellaws Digest’ titled “Judicial Independence vs.
Constitutional Supremacy-A study of Bangladesh's struggle to
maintain legal integrity.” Author’s view relevant to the present case is
given below:
“The basic structure doctrine is one which preserves the
principles of the Constitution that effectively devises the
ways in which the nation is expected to build itself.
However, at the end of the day, the basic structure doctrine
is one of abstractive value. While it should be recognised
that principle of the independence of the judiciary speaks
not only to one of the basic structures of the Constitution
of Bangladesh, but also to a principle enshrined in many
constitutions across the world, it ought to be noted that at
=59=
the end of the day the application of the principle is based
on abstraction and is a principle that was presumably in
the mind of the constituent assembly during the
construction of the constitution itself.
If a recommendation regarding the confirmation of a
Justice of the Supreme Court (High Court Division)
proposed by the Chief Justice of Bangladesh to the
President of the People’s Republic of Bangladesh is not
fully affirmed, there are several things to consider. To
address this matter, it is important to analyse the text of
the Constitution that delineates these powers to the office
of the President.
In Article 51 of the Constitution, the matter is effectively
defined. The President is not answerable to the Court in
the exercise of his duties. Among his duties, according to
Articles(s) 94, 95 and 98, is the duty to confirm the
appointment of judges to the High Court Division of the
Supreme Court. If we are to follow the letter of the law, the
prescription of Article 51 is clear in that the President is not
answerable to the Court in the exercise of this duty.
However, per Article 48, the President is expected to act in
accordance with the advice of the Prime Minister.
Additionally, this provision prescribes that this advice is
ultimately privileged communication that the Court has no
authority to investigate. As such, the President is allowed
to act in accordance with his conscience and wisdom to
choose to affirm only those they deem fit to execute the
duties for which they are appointed. Therefore, by
Constitutional authority, it is the prerogative of the
President to act as they deem fit in the execution of such
duties.
=60=
While it has been argued that in disregarding the
recommendation of the Chief Justice in appointment of
judges, there is the potential for threat to the independence
of the judiciary, it is also equally true that the Constitution
in its grand wisdom permits this specific effect. It is,
however, important to recognise two facts. First, the
preservation of judicial independence is a fundamental
and basic structure of the Constitution and deserves the
utmost reverence. However, the mode that this
preservation could take place is ultimately debatable.
Second, the letter of the Constitution, which by virtue of
Article 7 is supreme to all, is thus superior to any abstract
principle. Assuming that the constituent assembly was
aware of the principle of judicial independence when
articulating the functions of the office of the President and
the functionality of the Supreme Court, and the office of
the Chief Justice, the letter of the Constitutional text must
be assumed to be the intended will of the Constitution. In
effect, considering that no part of the Constitution is
deemed inferior to any other (a principle opined on by
H.M. Seervai in his seminal text on the Constitution of
India), it is important to realise that the basic structure
doctrine, or the abstraction of the principle of judicial
independence, cannot take precedence over the prescribed
text enshrined in the Constitution.
To this effect, it is presumed that the constituent assembly,
in its wisdom, was cognizant of this basic structure, but
still enshrined Article 48, which enshrines that the advice
of the Prime Minister on which the President relies in the
execution of his duties, including the appointment of
judges, is privileged communication, not to be investigated
=61=
by any court. Hence, this court, or any other, is unable to
challenge any such decision. Considering the text of
Article(s) 48 and 52(2), the privilege communication may
be investigated only if the parliament deems it to be
appropriate.
So, in the event that a recommendation of the appointment
of an individual to the Supreme Court (High Court
Division) is disregarded, the office of the Chief Justice has
no other recourse but to merely seek clarification from the
office of the President. In such a case, the office of the
President is not bound to respond in detail. Only if the
Parliament deems such an investigation to be fit, they may
choose to enquire this matter with the office of the
President.
In maintaining this course of action, three core benefits are
accrued. First, the letter of the Constitution is not
undermined by a possible interpretation of a principle that
is abstracted on to the Constitution itself. Second, the
integrity of the office of the President is preserved, while
paying heed to the need for judicial independence. Finally,
this returns the ultimate power of arbitration of the matter
on to the Parliament, in recognition of parliamentary
sovereignty– effectively returning the power of such
arbitration to the representation of the collective will of the
people of Bangladesh.
Ultimately, this is a compromise. This does still create
avenues for judicial independence to be impeded by the
whims of the office of the President and potentially, the
office of the Prime Minister, who ultimately may have
political motivations. However, the Constitution as it
stands, is superior to any will or vision any other body
=62=
may strive towards. Hence, any decision on the matter
must be in accordance with the existing provisions of the
Constitution. Perhaps a revision of the procedures
regarding such matters is well due; but at this juncture, the
letter of the Constitution must prevail.”
[Source: http://www.mazellaws.com/publication/blogs/judicial-
independence-vs-constitutional-supremacy-a-study-of-bangladeshs-
struggle-to-maintain-legal-integry]
In the case in hand, the claim of the appellant is that even though
the Hon’ble Chief Justice recommended the names of six judges
including the appellant for appointment as permanent judge only five
Judges were appointed by the President dropping the appellant due to
oblique purpose. As it has been discussed earlier that the president
shall act in consultation with the Prime Minister while discharging his
functions. In the instant case the President did not appoint the
appellant as the opinion of the executive was not found to be positive.
Now a question arises whether the said opinion is ordered to be
disclosed. According to proviso to Article 48 of the Constitution
anything about the advice rendered by the Prime Minister to the
President shall not be enquired into in any court. In fact, it is the
maker of constitution who gave such indefeasible protection to the
advice of the executive of state. Article 51 provides that the President
shall not be answerable in any court for anything done or omitted by
him in the exercise or purported exercise of the functions of his office.
=63=
The learned Counsels on behalf of the appellant referring the
Ten Judges’ case contends that in that case the Judges were appointed
as Additional Judges for two years and thereafter they had not been
appointed by the President as permanent Judges, the Appellate
Division finally directed to consider the cases of Ten Judges for
appointment in terms of guideline as formulated by the said Division.
In this regard, it is our considered opinion that the said ten Judges
were appointed as Additional Judges for two years in the regime of
one political government but at the expiry of two years another
government came to the power. So, their non-appointment as
permanent judges is undoubtedly motivated by the political reason.
But in the case in hand the appellant was appointed as Additional
Judge in a regime of a political government and subsequently he has
not been appointed as permanent judge in the regime of the same
government. Thus, there is no question of political motivation in case
of dropping the name of the appellant.
Now adverting to the qualification for appointment as a Judge of
the Supreme Court we will look into the constitutional provisions of
India, Pakistan vis-a-vis Bangladesh.
Article 217(2) of the Indian Constitution is extracted below:
“(2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India and-
(a) has for at least ten years held a judicial office in the
territory of India; or
=64=
(b) has for at least ten years been an advocate of a High
Court or of two or more such Courts in succession.”
Likewise, Article 193(2) of the Pakistan Constitution provides
that-
“2. A person shall not be appointed a Judge of a High
Court unless he is a citizen of Pakistan, is not less than
forty-five years of age, and-
a. he has for a period of, or for periods aggregating, not
less than ten years been an advocate of a High Court
(including a High Court which existed in Pakistan at any
time before the commencing day); or
b. he is, and has for a period of not less than ten years
been, a member of a civil service prescribed by law for the
purposes of this paragraph, and has, for a period of not
less than three years, served as or exercised the functions
of a District Judge in Pakistan: or
c. he has, for a period of not less than ten years, held a
judicial office in Pakistan.”
Keeping analogy with the legal system of the sub-continent
Article 95(2) of our Constitution enumerates the qualifications of a
person to be appointed as a Judge of the Supreme Court. Article 95(2)
provides that-
“95. (2) A person shall not be qualified for appointment as
a Judge unless he is a citizen of Bangladesh and
(a) has, for not less than ten years, been an advocate of the
Supreme Court; or
(b) has, for not less than ten years, held Judicial office in
the territory of Bangladesh; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.
=65=
Thus, according to Article 95 of our Constitution the
qualification of an advocate for being appointed as a Judge of the
Supreme Court is that he should be citizen of Bangladesh and has been
an advocate of the Supreme Court of Bangladesh for at least ten 10
years.
In Al-Jehad Trust case reported in PLD 1996 SC 324, Para-7 the
Supreme Court of Pakistan held that-
“That the requirement of 10 years practice under
Article193(2)(a) of the Constitution relates to the
experience/ practice at the Bar and not simpliciter the
period of enrolment".
Now, let us examine whether the appellant being an advocate
has fulfilled the requirement of law as enumerated in Article 95(2) of
the Constitution. It appears that in the instant Civil Appeal, the writ
petitioner has stated that he was enrolled in the High Court Division
of the Supreme Court of Bangladesh on 18.06.2000. It is apparent from
Annexure-‘A-2’ of Writ Petition that the writ petitioner has obtained
Bachelor of Laws with Honors from the University of Wolverhampton
on 25.06.2004 and from Annexure-‘A-l’ of Writ Petition, it appears that
the writ petitioner has obtained Postgraduate Diploma from the City
University, London on 09.09.2005. Again, on plain reading of
Annexure-‘A’, it appears that the petitioner was called to the Bar of
England and Wales on 13.10.2005. Therefore, on examination of the
Annexures-‘A, ‘A-1’ and‘A-2’ it appears that after being enrolled in the
=66=
High Court Division of the Supreme Court of Bangladesh on
18.06.2000, the writ petitioner stayed in the United Kingdom (UK)
until 13.10.2005 on which date the writ petitioner was called to the Bar
of England and Wales. Thus, it is evident that after the date of
enrolment as an advocate in the High Court Division on 18.06.2000 the
writ petitioner stayed in UK for a period of minimum 5(five) years
upto13.10.2005. Therefore, the writ petitioner was appointed as an
Additional Judge of the Supreme Court of Bangladesh on 13.06.2012
having only 7(Seven) years of practice in the High Court Division
which falls short of the necessary requirement for being appointed as a
Judge. Apart from this, the writ petitioner did not mention anywhere
in the writ petition when he returned back in Bangladesh and started
practice as an advocate in the Supreme Court of Bangladesh.
Therefore, it is crystal clear that at the time of his appointment as an
Additional Judge of the High Court Division on 13.06.2012 the writ
petitioner did not have the requisite qualification as per Article
95(2)(a) of the Constitution. In the prevailing situation, the executive
was quite in right standing not recommending the appellant for
appointment as a permanent Judge.
In the present case Chief Justice of Bangladesh recommended the
names of 6 persons out of those, 5 persons have been made confirmed
under Article 95 of the Constitution. So it cannot be said that the
Executive has ignored the recommendation of the Chief Justice of
=67=
Bangladesh violating the observation given in the Ten Judges Case. In
the present case the opinion of the Chief Justice of course has been
given due importance in case of 5 persons (Judges).
In the case in hand it appears that the basic qualification of
having 10 years practice to be appointed as a Judge of the High Court
Division was found absent in case of the appellant A.B.M. Altaf
Hossain. So the Chief Justice of Bangladesh recommended Mr. A.B.M.
Alataf Hossain without being aware regarding this fact. The appellant
was appointed as Additional Judge of the Supreme Court by the
President of the Republic under the provision of Article 98 of the
Constitution. The President need not consult with the Chief Justice in
exercising his power under Article 98 of the Constitution thought after
the Ten Judges Case it has become a practice to consult the Chief
Justice prior appointment of any person as Additional Judge under
Article 98 of the Constitution. Thus, it might have been presumed by
the Chief Justice that Altaf Hossain the appellant had the requisite
qualification of 10 years practice at the time of his appointment under
Article 98 of the Constitution. The persons concerned in the
government, who are in the helm of the affairs in the process of
appointment of Judges of the Supreme Court, should have brought
this matter to the notice of the Chief Justice before consultation by the
President with him as per provision of Article 95 of the Constitution.
However, it cannot be said that primacy of the opinion of the Chief
Justice has been totally ignored in the appointment of 5 out of 6
=68=
persons under Article 95 of the Constitution. We have already
discussed that 5 persons out of 6 were given appointment under
Article 95 of the Constitution as their names were recommended by
the Chief Justice, and only one person has been dropped by the
President after consulting with the Chief Justice and being advised by
the Prime Minister. We find no illegality in it.
In this regard we may get strength from the decision given in the
case of Shanti Bhushan and ors. vs. Union of India and ors., reported in
(2009) 1 SCC 657 it has been held that-
“Person, who is not found suitable for being appointed on
some post, should not be given extension.”
In the case of Hassan M.S. Azim vs. Bangladesh, reported in 21
BLC(AD) 201, this Division concurred with the observation of the High
Court Division that the ‘President is obliged to act in accordance with
the advice of the Prime Minister’. The judgment of this case was
pronounced by the High Court Division on 26.10.2010 and the
Appellate Division judgment was pronounced on the 5th November,
2015. After pronouncement of the judgment in the Ten Judges’ Case as
well as after 15th amendment of the Constitution came in existence.
38. We have seen the record of the case in a chamber of one of our
brothers. It is clear that the President has appointed 5 Additional
Judges as permanent Judge under Article 95 of the Constitution out of
6 Additional Judges at the advice of the Prime Minister.
=69=
The observation made by Mr. Justice Md. Abdul Matin in the
case of Bangladesh and others vs. Md. Idrisur Rahman, Advocate and others,
reported in 29 BLD(AD)79 that as follows:
“157. It is true that “consultation” was considered in the
light of Article 116 of the Constitution but nevertheless the
same principle all the more applies in the matter of
appointment of judges of the Supreme Court under
Articles 98 and 95 of the Constitution because without the
independence of the Supreme Court there cannot be any
independence of the subordinate courts and minus the
consultation and primacy the separation of judiciary from
the executive will be empty words.
158..................................................................................................
159. This word “independent” also occurs in Article 116A
of the Constitution which runs as under:
“116A. Subject to the provisions of the Constitution,
all persons employed in the judicial service and all
magistrates shall be independent in the exercise of
their judicial functions.”
160. The expression “shall be independent” came up for
consideration in the aforementioned case of Secretary,
Ministry of Finance Vs. Mr. Md. Masdar Hossain and this
Court considered both Article 94(4) as well as 116A of the
Constitution quoted above and held as under:
“The independence of the judiciary, as affirmed and
declared by Articles 94(4) and 116A, is one of the
basic pillars of the Constitution and cannot be
demolished, whittled down, curtailed or diminished
in any manner whatsoever, except under the existing
provisions of the Constitution. It is true that this
independence, as emphasized by the learned
Attorney General, is subject to the provisions of the
=70=
Constitution, but we find no provision in the
Constitution which curtails, diminishes or otherwise
abridges this independence. Article 115, Article 133
or Article 136 does not give either the Parliament or
the President the authority to curtail or diminish the
independence of the subordinate judiciary by
recourse to subordinate legislation or rules. What
cannot be done directly, cannot be done indirectly.”
161. Therefore the expression “independence of judiciary”
is also no longer res-integra rather has been authoritatively
interpreted by this Court when it held that it is a basic
pillar of the Constitution and cannot be demolished or
curtailed or diminished in any manner accept by and
under the provision of the Constitution. We find no
existing provision of the Constitution either in Articles 98
or 95 of the Constitution or any other provision which
prohibits consultation with the Chief justice. Therefore
consultation with the Chief Justice and primacy is in no
way in conflict with Article 48(3) of the Constitution. The
Prime Minister in view of Article 48(3) and 55(2) cannot
advice contrary to the basic feature of the constitution so as
to destroy or demolish the independence of judiciary.
Therefore the advice of the Prime Minister is subject to the
other provision of the Constitution that is Articles 95, 98,
116 of the Constitution.
162-165..........................................................................................
166. Therefore it follows that consultation with the Chief
Justice with primacy is an essential part of independence
of judiciary which is ingrained in the very concept of
independence embedded in the principle of rule of law
and separation of judiciary from the executive and is not in
conflict with Article 48(3) of the Constitution.
=71=
167. The judiciary is a cornerstone of our Constitution,
playing a vital role in upholding the rule of law.
Government must be conducted in accordance with the
law and, for there to be confidence that this happens in
practice, the law must be administered by a judiciary that
is independent of Government. The process by which
Judges are appointed is therefore key to both the reality
and the perception of independence. The whole scheme is
to shut the doors of interference against executive under
lock and key and therefore prudence demands that such
key should not be left in possession of the executive.
The observation made by his Lordship Mr. Justice Md. Abdul
Matin has been reflected in the judgment of Raghib Rauf Chowdhury vs.
Government of Bangladesh and others, reported in 69 DLR(HCD) 317,
Paragraph-46.
The President of the Republic is elected under the provision of
Article 48(1) of the Constitution by the Members of Parliament in
accordance with law. As per Article 48(2) of the Constitution the
President exercise the powers and perform the duties as per the
Constitution. Article 48(2) of the Constitution runs as follows:
“The President shall, as Head of State, take precedence over all
other persons in the State, and shall exercise the powers and
perform the duties conferred and imposed on him by this
Constitution and by any other law.”
=72=
The President exercises his powers at the advice of the Prime
Minister which has been mentioned in Article 48(3) of the
Constitution. Article 48(3) of the Constitution runs as follows:
“In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to clause (3) of
article 56 and the Chief Justice pursuant to clause (1) of
Article 95, the President shall act in accordance with the
advice of the Prime Minister.”
In the proviso of Article 48(3) it has been mentioned that
“provided that the question whether any, and if so what,
advice has been tendered by the Prime Minister to the
President shall not be enquired into in any court.”
Similar provision has been made for the President of India in
Article 74 of the Indian Constitution and there is a little bit difference
between the provision of Article 48(3) of the Constitution of People’s
Republic of Bangladesh and Article 74 of the Constitution of India. The
provision of Article 74 of the Constitution of India runs as follows:
“Council of Ministers to aid and advise President-(1)
There shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President who
shall, in the exercise of his functions, act in accordance
with such advice.
Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or
=73=
otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be
inquired into in any court.”
In the Constitution of the Islamic Republic of Pakistan similar
provision is available. The contents of Article 48(1) and (4) of the
Constitution of the Islamic Republic of Pakistan runs as follows:
“48(1) In the exercise of his functions, the President shall
act in accordance with the advice of the Cabinet or the
Prime Minster.
Provided that the President may require the Cabinet or, as
the case may be, the Prime Minister to reconsider such
advice, either generally or otherwise, and the President
shall act in accordance with the advice tendered after such
reconsideration.
(2)....................................................................................................
.......
(3) Omitted.
(4) The question whether any, and if so what, advice was
tendered to the President by the Cabinet, the Prime
Minister, a Minister or Minister of State shall not be
inquired into in, or by, any court, tribunal or other
authority.”
In all democratic countries where parliamentary democracy is in
existence President of the country enjoys some immunity. By the
Articles 51(1) and (2) the President of the People’s Republic of
=74=
Bangladesh has been given immunity. The contents of Article 51(1)
and (2) of the Constitution runs as follows:
“51.(1) Without prejudice to the provisions of article 52, the
President shall not be answerable in any court for anything
done or omitted by him in the exercise or purported
exercise of the functions of his office, but this clause shall
not prejudice the right of any person to take proceedings
against the Government.
(2) During his term of office no criminal proceedings
whatsoever shall be instituted or continued against the
President in, and no process for his arrest or imprisonment
shall issue from, any court.”
If we read together the provision of Article 48 and the provision
of Article 51 of the Constitution, we find a clear picture regarding the
powers and prerogatives of the President of the Republic. The
President shall exercise his functions at the advice of the Prime
Minister and the advice whatsoever given or not cannot be questioned
as well as the action taken by the President is also immuned from
being answerable to any Court. Thus, the writ petition of the appellant
is not maintainable. Because in the writ petition the petitioner has
challenged the action of the President. The appellant-writ-petitioner
filed the writ petition challenging his “non appointment under Article
95 of the Constitution” which is totally barred under the provision of
Article 51 of the Constitution.
=75=
For a smooth functioning and to establish a transparent
judiciary, one of the organ of the State, the Executive shall come
forward to assist the Chief Justice with all sorts of support including
the materials, if any, in their hands against any person, who is under
consideration to be appointed as Judge of the Supreme Court under
Article 95 of the Constitution. At the time of appointment of the
Additional Judges under the provision of Article 98 of the Constitution
the Chief Justice is not required to be consulted as per Constitution,
but practice has been developed to consult with the Chief Justice. The
President alone can appoint the Judges of the Supreme Court in
accordance with the Constitutional provisions. He is to consult with
the Chief Justice and to take advice from the Prime Minister. The
persons working with the executive, who are at the helm of affairs of
the appointment of the Judges of the Supreme Court and provide
assistance to the President in selecting the Judges, they are responsible
to take all necessary information including antecedent of the person
who are supposed to be appointed to the Supreme Court as per
provision of Article 98 of the Constitution. When the question comes
to appointment of the Judges under the provision of Article 95 of the
Constitution the practice in our country is that the Chief Justice
recommends the names of the Additional Judges already appointed
and discharging their functions as puisne Judges in the High Court
Division. Since at the time of initial appointment under the provision
of Article 98 of the Constitution the antecedents of the aforesaid
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persons presumably have been checked by the executive, usually the
Chief Justice does not go to enquire the antecedent of any Judge afresh
and of course it is not his function at all. The Chief Justice will see the
legal accumen only of the incumbent Additional Judge and make his
recommendation on that basis. Common practice is that, after expiry
of two years or some more periods the Chief Justice recommends the
names of the Additional Judges to the President, considering their
performance in the Court, for appointment, under Article 95 of the
Constitution.
The intention of the legislature has been expressed in Article
95(2) regarding qualification and disqualification of the person, who
are eligible for appointment as a Judge of the Supreme Court. In
Article 95(2) of the Constitution runs as follows:
“95(2) A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and-
(a) has, for not less than ten years, been an advocate of the
Supreme Court; or
(b) has, for not less than ten years, held judicial office in the
territory of Bangladesh; or
(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.”
In the case in hand Article 95(2)(a) of the Constitution is more
relevant. It has been mentioned that if any person is not an Advocate
of the Supreme Court for 10 years he will be disqualified to become a
Judge of the Supreme Court. In our view, this 10 years advocacy
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means continuous 10 years legal practice in the Supreme Court or
aggregating of 10 years legal practice in the Supreme Court. Since it
appears from a simple arithmetic calculation that the appellant did not
have 10 years continuous practice in the Supreme Court, which we
have discussed earlier, he was not qualified to become a Judge under
Article 98 of the Constitution.
The President is the only authority to appoint the Judges of the
Supreme Court either under Article 98 or 95 of the Constitution in
accordance with the constitutional provision. There is no other
authority in the country to appoint Judges of the Supreme Court. In
the case in hand as per Article 95 of the Constitution President
consulted with the Chief Justice and the recommendation of the Chief
Justice has been implemented in major portion except the
recommendation for the appellant, thus it can be said that the
President did not commit any illegality by not giving appointment to
the appellant in the post of permanent Judge of the High Court
Division of the Supreme Court of Bangladesh under Article 95 of the
Constitution of the People’s Republic of Bangladesh.
It has been observed in the Ten Judges’ Case that the advice of
the Prime Minister is subject to the other provision of the Constitution
that is Article 95, 98 and 116 of the Constitution. The contents of
Article 116 of the Constitution runs as follows:
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“The control (including the power of posting, promotion
and grant of leave) and discipline of persons employed in
the judicial service and magistrates exercising judicial
functions shall vest in the President and shall be exercised
by him in consultation with the Supreme Court.”
Supreme Court does not mean the Chief Justice alone. Supreme
Court means-the Supreme Court of Bangladesh under Articles 152 and
94 of the Constitution. But in Article 95 the words ‘Supreme Court’ is
absent, the President is only obliged to consult with the Chief Justice
not the Supreme Court.
From the above discussions, we would like to observe as under:
(a) The Chief Justice of Bangladesh in exercise of his
functions as consultee shall take aid from the other
senior Judges of the Supreme Court at least with two
senior most Judges of the Supreme Court before
giving his opinion or recommendation in the form of
consultation to the President.
(b) In the light of the observations made in S.P. Gupta,
Ten Judges’ cases, and the article mentioned in
paragraph-17, it is evident that in case of
appointment of a Judge of the Supreme Court under
Articles 95 and 98 of the Constitution the opinion of
the Chief Justice regarding legal acumen and
professional suitability of a person is to be
considered while the opinion of the Prime Minister
regarding the antecedents of a person is also to be
considered. If divergent opinions from either side of
the two functionaries of the state occur the President
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is not empowered to appoint that person as Judge.
The opinion of any functionary will not get primacy
over the others.
(c). If any bad antecedent or disqualification is found
against any Additional Judge, who is under
consideration of the Chief Justice to be recommended
for appointment under the provision of Article 95 of
the Constitution, it is obligatory for the executive to
bring the matter to the notice of the Chief Justice
prior to the consultation process starts.
(d). After recommendation is made by the Chief Justice
to the President, even if, at that stage it is revealed
that antecedent of any recommended candidate is
not conducive to appoint him as a Judge under
Article 95 of the Constitution, it shall be obligatory
for the executive to send the file of that Additional
Judge or the person, back to the Chief Justice for his
knowledge, so that the Chief Justice can review his
earlier recommendation regarding the such
candidate.
(e). If the Chief Justice again (2nd time) recommends the
same Judge/person for appointment under Article
95, whose antecedent has been placed before him for
reconsideration, this Court expects that, the
President of the Republic would show due respect to
the latest opinion of the Chief Justice.
(emphasis added)
In the Ten Judges’ Case it has been observed that-
“11. As to the legitimate expectation of the Additional
Judges it is held that they only have the right to be
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considered for appointment under Article 95(1) of the
Constitution.”
We have discussed earlier that their Lordships in the said case in
the form of direction asked the authority to consider the cases of the
Ten Judges as per guideline they formulated. But it is clear that this
Division did not give any direction to the government to appoint them
as Judges of the Supreme Court. Fortunately, after the judgment of the
Ten Judges’ Case the Judges, who were dropped earlier were given
appointment in a regime of political government favourable to them
otherwise they would not have been given permanent appointment.
With the above observations, the Civil Appeal No. 232 of 2014
and Civil Petition for Leave to Appeal No. 602 of 2017 are disposed of.
No order in respect of Civil Petition for Leave to Appeal No.
2680 of 2014 as it has been abated at the death of the sole petitioner.
J.
Borhanuddin,J: I have had the privilege of going through the
judgment and order proposed to be delivered by my learned brothers
Obaidul Hassan, J., M. Enayetur Rahim, J., Md. Ashfaqul Islam, J., Md.
Abu Zafor Siddique, J. and Jahangir Hossain, J.
Concurring with the ultimate decision of the appeal, I would like
to express my brief opinion on the point ‘whether dropping the name
of the appellant ignoring the opinion/recommendation of the Chief
Justice of Bangladesh for confirmation and appointment under Article
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95 of the Constitution is without lawful authority and violative of the
Constitution.’
Facts in a nutshell are that considering qualification and
antecedents, the Hon’ble President of Bangladesh appointed the
appellant as Additional Judge of the Supreme Court of Bangladesh,
High Court Division alongwith 5 other Additional Judges under
Article 98 of the Constitution of Bangladesh vide Notification dated
13.06.2012. The Chief Justice administered them oath of office on
14.06.2012. Before expiry of 2(two) years tenure of the said Additional
Judges, the Chief Justice being satisfied with their performance and
integrity recommended all of them for appointment as permanent
Judge of the High Court Division under Article 95 of the Constitution.
Though 5(five) of them were duly appointed as permanent Judge by
the President vide Gazette notification dated 09.06.2014 but the name
of the appellant was dropped from the list ignoring recommendation
of the Chief Justice. As such, the appellant as petitioner invoked the
writ jurisdiction under Article 102 of the Constitution on the plea that
dropping the name of the appellant for appointment under Article 95
of the Constitution ignoring recommendation of the Chief Justice
affected very independence of the judiciary.
Upon hearing learned Advocate for the writ-petitioner, a
Division Bench of the High Court Division rejected the writ petition
summarily vide order dated 24.09.2014.
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Being aggrieved and dissatisfied with the order passed by the
High Court Division, the writ-petitioner preferred Civil Petition for
Leave to Appeal No.2626 of 2014 invoking Article 103 of the
Constitution. After hearing the parties, this Division granted leave
vide order dated 06.11.2014.
Consequently, instant civil appeal arose.
For proper appraisal, it is necessary to discuss the relevant
Constitutional provisions relating to the appointment of Judges under
Article 98 and 95 of the Constitution which are as under:
“98.Additional Supreme Court Judges:
Notwithstanding the provisions of article 94, if the
President is satisfied that the number of the Judges of a
division of the Supreme Court should be for the time being
increased, the President may appoint one or more duly
qualified persons to be Additional Judges of that division
for such period not exceeding two years as he may specify,
or, if he thinks fit, may require a Judge of the High Court
Division to sit in the Appellate Division for any
temporary period :
Provided that nothing in this article shall prevent a
person appointed as an Additional Judge from being
appointed as a Judge under Article 95 or as an
Additional Judge for a further period under this
Article.”
(emphasis supplied)
-AND-
“95(1). Appointment of Judges: The Chief Justice shall
be appointed by the President, and the other Judges shall
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be appointed by the President after consultation with the
Chief Justice.”
(emphasis supplied)
It is pertinent to mention here that in the unamended Article
95(1) of the Constitution provision of consultation with the Chief
Justice of Bangladesh by the President was there but lateron said
provision was omitted through Constitutional 4th Amendment Act.
Thereafter, by the Constitutional 15th Amendment Act the original
provision of Article 95(1) was again restored. Thus, now the provision
of consultation with the Chief Justice of Bangladesh by the President
in appointing Judge under Article 95(1) is a Constitutional
requirement. It is not disputed that the then Chief Justice of
Bangladesh has recommended name of the appellant for appointment
under Article 95(1) of the Constitution.
Appellant’s contention is that dropping of his name ignoring
recommendation of the Chief Justice for appointment under Article
95(1) of the Constitution affects the independence of judiciary.
The concept of independence of judiciary is that the Judiciary
should be free from other branches of the Government. It should have
freedom from fear and favour of the other two organs. The concept
has its origin in the doctrine of separation of power. Defining the
Independence of Judiciary by emphasizing only the creation of
Judiciary as an autonomous institution separate from other branches is
not sufficient unless the core idea of judicial independence is
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exhibited, which is the independent power of the judges to decide a
case before them according to the rule of law uninfluenced by any
other factors. Independence of the Judiciary is important for the sole
reason of safeguarding the rights and privileges of the people and
thereby providing equity and justice to all. The Rule of Law, which
explains the supremacy of the Constitution, can only be achieved
when there is an independent and impartial judiciary at the top level
to ensure proper interpretation and implementation of the Rule of
Law. For this reason, it is so important to maintain the Independence
of Judiciary and thus protect the democracy and as such the concept of
Independence of Judiciary is a basic structure of our Constitution.
In the case of Anwar Hossain Chowdhury Vs. Government of
People’s Republic of Bangladesh, reported in 41 DLR (AD)(1989) 165, this
Division observed:
“This point may now be considered. Independence of
Judiciary is not an abstract concept. Bhagwati, J.: said ‘if
there is one principle which runs through the entire fabric
of the Constitution, it is the principle of the Rule of Law
and under the Constitution, it is the judiciary which is
entrusted with the task of keeping every organ of the state
within the limit of the law and thereby making the Rule of
Law a meaningful and effective.’ He said that the Judges
must uphold the core principle of the Rule of Law which
says, ‘Be you ever so high, the law is above you.’ this is the
principle of Independence of Judiciary which is vital for
the establishment of real participatory democracy,
maintenance of the Rule of Law as a dynamic concept and
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delivery of Social Justice to the vulnerable sections of the
community. It is this principle of Independence of
Judiciary which must be kept in mind while interpreting
the relevant provisions of the Constitution. (S.P. Gupta
and others vs. President of India and others AIR 1982 SC
at page-152).”
Again, in the case of Secretary, Ministry of Finance vs. Mr. Md.
Masdar Hossain and others, reported in 20 BLD (AD)(2000) 104, this
Division held:
“The independence of the judiciary, as affirmed and
declared by Articles 94(4) and 116 A, is one of the basic
pillars of the Constitution and cannot be demolished,
whittled down, curtailed or diminished in any manner
whatsoever, except under the existing provisions of the
Constitution. It is true that this independence, as
emphasized by the learned Attorney General, is subject to
the provisions of the constitution, but we find no
provisions of the constitution which curtails, diminishes
or otherwise abridges this independence. Article 115,
Article 113 or Article 136 does not give either the
Parliament or the President the authority to curtail or
diminish the independence of the subordinate judiciary by
recourse to subordinate legislation or rules. What cannot
be done directly cannot be done indirectly.”
Further, in the case of Supreme Court Advocate-on-Record
Association and another Vs. Union of India (popularly known as Fourth
Judges Case), reported in (2016) 5 SCC 01, the Supreme Court of India
also expressed its view in the following manner:
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“The Rule of Law is recognized as a basic feature of our
Constitution. It is in this context that the aphorism, ‘Be
you ever so high, the law is above you’, is acknowledged
and implemented by the Judiciary. If the Rule of Law is a
basic feature of our Constitution, so must be the
independence of the judiciary since the ‘enforcement’ of the
Rule of Law requires an independent judiciary as its
integral and critical component.”
From the above referred cases, it is crystal clear that the
Independence of Judiciary is a ‘Basic Structure’ of our Constitution
which cannot be demolished, whittled down, curtailed or diminished
in any manner whatsoever, except under the existing provisions of the
Constitution.
In the context of the case in hand, it requires to discuss what is
the effect of recommendation of the Chief Justice in appointing Judges
under Article 95(1) of the Constitution.
In the case of Supreme Court Advocates-on-Record Association and
another vs. Union of India (popularly known as Second Judges Case),
reported in AIR 1994 SC 268, the Supreme Court of India observed:
“In practice, whenever the Council of Ministers both at
central and state level, as the case may be, plays a major
role in its self-acclaimed absolute supremacy in selecting
and appointing the Judges, paying no attention to the
opinion of the CJI, they may desire to appoint only those
who share their policy performances or show affiliation to
their political philosophy or exhibit affinity to their
ideologies. This motivated selection of men and women to
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the judiciary certainly undermines public confidence in
the Rule of Law and resultantly the concept of Separation
of Judiciary from the Executive as adumbrated
under Article 50 and the cherished concept of
Independence of Judiciary untouched by the Executive will
only be forbidden fruits or a myth rather than a reality. In
this situation, the consultation with the CJI will be an
informal one for the purpose of satisfying the
constitutional requirements. As it has been pointed out in
the Gupta’s case (AIR 1982 SC 149) that the judiciary
may be the weakest among the constitutional
functionaries, for the simple reason that it is not possessed
of the long sword (that is the power of enforceability of its
decisions)or the long purse (that is the financial
resources), but if the opinion of executive is to prevail
over, the opinion of CJI in matters, concerning judiciary
on account of that reason, then the independent judiciary
which is a power of strength for all – particularly for the
poor, the downtrodden and the average person confronting
the wrath of the Government will be a misnomer.”
It is significant to mention here that while recommending a
candidate for the higher judiciary, the Chief Justice requires to
evaluate the calibre and legal ability of the candidate. Regarding
professional attainments, legal soundness, ability, skill etc of the
candidate be evaluated only by the Chief Justice in the matter of
appointment under Article 95 of the Constitution. However, since the
judiciary does not have such mechanism to evaluate the antecedent
and background of a candidate, the Chief Justice may not express
his/her opinion about the conduct, character and antecedent of the
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candidate. But the Executive with its sufficient machineries can check
the antecedent and background of the candidate and form its opinion
on that aspect. If the opinion of the Executive placed before the Chief
Justice with all particulars including the conduct, character and
antecedent of such candidate, the Chief Justice can evaluate the fitness
of the candidate in all aspects. Therefore, in all circumstances, the
opinion of the Chief Justice has the right of primacy in appointing the
Judges under the provisions of Constitution.
If the opinion of the Executive prevails over the opinion of Chief
Justice in matters concerning appointment of Judges, then the
Independence of Judiciary which is a basic structure of the
Constitution as well as the power of strength for all-particularly for
the poor, the downtrodden and the average person confronting the
wrath of the Government will be a misnomer.
In the case of Supreme Court Advocate-on-Record Association and
another vs. Union of India (popularly known as Second Judges Case),
reported in AIR 1994 SC, 268 the Supreme Court of India held that:
“Then the question which comes-up for consideration is,
can there be an Independent Judiciary when the power of
appointment of Judges vests in the Executive? To say yes,
would be illogical. The Independence of Judiciary is
inextricable linked and connected with the constitutional
process of appointment of Judges of the higher Judiciary.
‘Independence of Judiciary’ is the basic feature of our
Constitution and if it means what we have discussed
above, then the framers of the Constitution could have
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never intended to give this power to the Executive. Even
otherwise the Governments - Central or the State - are
parties before the Courts in large number of cases. The
Union Executive have vital interests in various important
matters which come for adjudication before the Apex-
Court. The Executive - in one from the other - is the
largest single-litigant before the Courts. In this view of the
matter the Judiciary being the mediator - between the
people and the Executive - the framers of the Constitution
could not have left the final authority to appoint the
Judges of the Supreme Court and of the High Courts in the
hands of the Executive. This Court in S.P. Gupta’s case
(AIR 1982 SC 149) proceeded on the assumption that the
Independence of Judiciary is the basic feature of the
Constitution but failed to appreciate that the
interpretation, it gave, was not in conformity with the
broader facets of the two concepts - ‘Independence of
Judiciary’ and ‘Judicial Review’ - which are inter-linked.”
Finally, the point mentioned above considered in the case of
Supreme Court Advocates-on-Record Association vs. Union of India
(popularly known as Second Judges Case), reported in AIR 1994 SC 268
before a Bench of nine Judges in which by majority of seven to two, the
Supreme Court of India held:
"When an argument was advanced in Gupta’s case (AIR
1982 SC 149) to the effect that where there is difference of
opinion amongst the Constitutional functionaries required
to be consulted, the opinion of the CJI should have
primacy, since he is the head of the Indian Judiciary and
paterfamilias of the judicial fraternity, Bhagwati, J.
rejected that contention posing a query, as to the principle
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on which primacy can be given to the opinion of one
constitutional functionary, when Clause-(1) of Article
217 places all the three constitutional functionaries on the
same pedestal so far as the process of consultation is
concerned. The learned Judge by way of an answer to the
above query has placed the opinion of the CJI on par with
the opinion of the other constitutional functionaries. The
above answer, in our view, ignores or overlooks the very
fact that the judicial service is not the service in the sense
of employment, and is distinct from other services and that
“the members of the other services... cannot be placed on
par with the members of the judiciary, either
constitutionally or functionally”. (See All India Judges’
Association and others case (1993(4) JT (SC) 618) (supra).
There are innumerable impelling factors which motivate,
mobilize and import momentum to the concept that the
opinion of the CJI given in the process of ‘consultation’ is
entitled to have primacy, they are:
(1) The ‘Consultation’ with the CJI by the President
is relatable to the judiciary and not to any other
service.
(2) In the process of various Constitutional
appointments ‘consultation’ is required only to the
judicial office in contrast to the other high ranking
constitutional offices. The prior ‘consultation’
envisaged in the first proviso to Article
124(2) and 217(1) in respect of judicial offices is a
reservation or limitation on the power of the
President to appoint the Judges to the superior
courts.
(3) The ‘consultation’ by the President is a sine-
qua-non or a condition precedent to the exercise of
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the constitutional power by the President to appoint
Judges and this power is inextricably mixed up in
the entire process of appointment of Judges as an
integrated process. The ‘consultation’ during the
process in which an advice is sought by the
President cannot be easily brushed aside as an
empty formality or a futile exercise or a mere casual
one attached with no sanctity.
---------------------------------------------------------------
---------------(5) Article 124 and 217 do not speak in
specific terms requiring the President to consult the
executive as such, but the executive comes into play
in the process of appointment of Judges to the higher
echelon of judicial service by the operation of
Articles 74 and 163 of the constitution. In other
words, in the case of appointment of Judges, the
President is not obliged to consult the executive as
there is no specific provision for such consultation.
(6)The President is constitutionally obliged to
consult the CJI alone in the case of appointment of a
Judge to the Supreme Court as per the mandatory
proviso to Article 124(2) and in the case of
appointment of a Judge to the High Court, the
President is obliged to consult the CJI and the
Governor of the State and in addition the Chief
Justice of the High Court concerned, in case the
appointment relates to a Judge other than the Chief
Justice of that High Court. Therefore, to place the
opinion of the CJI on par with the other
constitutional functionaries is not in consonance
with the spirit of the Constitution, but against the
very nature of the subject matter concerning the
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judiciary and in opposition to the context in which
‘consultation’ is required. After having observed
that the ‘consultation’ must be full and effective by
Bhagwati, J. in Gupta’s case there is no conceivable
reason to hold that such ‘consultation’ need not be
given primacy consideration.----------------------------
---------------------------------------------------------”
In the same case the Supreme Court of India further observed:
“The majority view in S.P. Gupta (AIR 1982 SC 149) to
the effect that the executive should have primacy, since it
is accountable to the people while the judiciary has no such
accountability, is an easily exploded myth, a bubble which
vanishes on a mere touch. Accountability of the executive
to the people in the matter of appointments of superior
Judges has been assumed, and it does not have any real
basis. There is no occasion to discuss the merits of any
individual appointment in the legislature on account of the
restriction imposed by Articles 121 and 211 of the
Constitution. Experience has shown that it also does not
form a part of the manifesto of any political party, and is
not a matter which is, or can be, debated during the
election campaign. There is thus no manner in which the
assumed accountability of the executive in the matter of
appointment of an individual judge can be raised, or has
been raised at any time. On the other hand, in actual
practice, the Chief Justice of India and the Chief Justice of
the High Court, being responsible for the functioning of
the courts, have to face the consequence of any unsuitable
appointment which gives rise to criticism levelled by the
ever vigilant Bar. That controversy is raised primarily in
the courts. Similarly, the Judges of the Supreme Court and
the High Courts, whose participation is involved with the
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Chief Justice in the functioning of the courts, and whose
opinion is taken into account in the selection process, bear
the consequences and become accountable. Thus, in actual
practice, the real accountability in the matter of
appointments of superior Judges is of the Chief Justice of
India and the Chief Justices of the High Courts, and not of
the executive which has always held out, as it did even at
the hearing before us that, except for rare instances, the
executive is guided in the matter of appointments by the
opinion of the Chief Justice of India.”
The aforementioned discussions leads to an inescapable
conclusion that all the factors mentioned above come together to
support the view that the Executive will not be justified in enjoying the
supremacy over the opinion of the Chief Justice in the matter of
appointing Judges to the superior judiciary. Therefore, to place the
opinion of the Chief Justice at per with the other constitutional
functionary is not in consonance with the spirit of the Constitution.
It is very important to discuss the matter at this stage that the
opinion/recommendation rendered by the Chief Justice in appointing
Judges in the higher judiciary under Article 95(1) of the Constitution
must be effective, meaningful, purposive, consensus oriented and
leaving no room for complaint of arbitrariness or unfair play.
The Supreme Court of Pakistan in the case of Al- Jehad Trust vs.
Federation of Pakistan, reported in PLD 1996 Supreme Court 324, held:
“The words ‘after consultation’ employed inter alia in
Articles 177 and 193 of the Constitution connote that the
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consultation should be effective, meaningful, purposive,
consensus oriented, leaving no room for complaint of
arbitrariness or unfair play. The opinion of the Chief
Justice of Pakistan and the Chief Justice of a High Court as
to the fitness and suitability of a candidate for judgeship is
entitled to be accepted in the absence of very sound reasons
to be recorded by the President/Executive.”
The Supreme Court of India in the case of Special Reference No.1
of 1998, reported in AIR 1999 Supreme Court 1, observed in the
following manner:
“The expression ‘consultation with the Chief justice of
India’ in Articles 217(1) and 222(1) of the Constitution of
India requires consultation with a plurality of Judges in
the formation of the opinion of the Chief Justice of India.
The sole, individual opinion of the Chief Justice of India
does not constitute ‘consultation’ within the meaning of
the said Articles.”
Based upon above discussions and the referred cases, I am of the
view that since the Chief Justice, the head of the judiciary and
paterfamilias of the Judicial fraternity, the opinion/recommendation
tendered by him in appointing Judges in the higher Judiciary has
primacy and as such to uphold the power, position and role of the
judiciary i.e. the Independence of Judiciary, the
opinion/recommendation so tendered by the Chief Justice in
appointing Judges under Article 95(1) of the Constitution is not a mere
formalities at all, rather it has a great significance, importance and
consequence and at the same time the Chief Justice before giving his
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opinion/recommendation to the President should take aid from the
other two Senior Judges of the Appellate Division, next to the Chief
Justice, so that no room for complaint of arbitrariness or unfair play
occurs.
The view taken in the case of S.P. Gupta and others vs. President of
India, reported in AIR 1982 SC 149, that the opinion of the executive
relating to antecedent of the candidate is to prevail over the opinion of
the Chief Justice is overruled in the Second Judges Case. The case of
Gupta’s was decided in the year of 1981 and the Second Judges Case
was decided in the year of 1994. Since Gupta’s case was an earlier one
and the Second Judges Case was later one and by the Second Judges
case, the view taken by the Gupta’s case was overruled as such, I
respectfully unable to concur with the view expressed by one of my
brother relying Gupta’s case on the point of primacy of the opinion in
appointing judges in the higher judiciary.
WHETHER ARTICLE 48(3) OF THE CONSTITUTION IS A
BARRIER FOR JUDICIAL REVIEW:
In defence of the impugned order dated 09.06.2014, learned
Attorney General submits that barring appointment of the Prime
Minister and the Chief Justice, the President is under obligation to act
in accordance with the advice of the Prime Minister and contents of
the advice cannot be enquired into in any Court. Refereeing the case of
Bangladesh and others vs. Md. Idrisur Rahman and others, reported in 29
BLD (AD) 79, learned Attorney General submits that the opinion of the
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executive shall have dominance in the matter of antecedent of a
candidate (Judge) and considering the incident of the appellant the
President of Bangladesh did not appoint him as a permanent Judge of
the High Court Division. On the query of the Court, learned Attorney
General referring Article 48(3) of the Constitution submits that the
basis of advice tendered by the Executive to the President cannot be
enquired into in any Court.
No documents/papers were placed before us to examine the
basis by which the advice was tendered by the executive to drop the
name of the appellant ignoring recommendation of the Chief Justice.
Article 48(3) of the Constitution is reproduced below:
“In the exercise of all his functions, save only that of
appointing the Prime Minister pursuant to Clause(3) of
Article 56 and the Chief Justice pursuant to Clause(1) of
Article 95, the President shall Act in accordance with the
advice of the Prime Minister:
Provided that the question whether any, and if so
what, advice has been tendered by the Prime
Minister to the President shall not be enquired into
in any Court.”
Article 74(2) of the Constitution of India is almost similar with
the proviso attached to Article 48(3) of our Constitution.
Article 74(2) of the Constitution of India is as follows:
“74(2) the question whether any, and if so what, advice
was tendered by the Ministers to the President shall not be
inquired into in any Court.”
=97=
This provision of Article 74(2) of the Indian Constitution has
been elaborately discussed in the case of S.R. Bommai and others vs.
Union of India (UOI) and others, reported in AIR 1994 SC 1918, and their
lordships held:
“Article 74(2) is not a barrier for judicial review. It only
places limitation to examine whether any advice and if so
what advice was tendered by the Council of Ministers to
the President. Article 74(2) receives only this limited
protective canopy from disclosure, but the material on the
basis of which the advice was tendered by the council of
Ministers is subject to judicial scrutiny.”
In United States of America the primacy to the executive
privilege is given only where the court is satisfied that disclosure of
the evidence will expose military secrecy or of the document relating
to foreign relations. In other respects the court would reject the
assertion of executive privilege. In United States v. Reynolds 1935 (345)
U.S. 1, Environmental Protection Agency v. Patsy T. Mink 410 U.S. 73 (35)
L Ed. 2nd 119, Newyork Times v. U.S. (1971) 403 U.S. 713 (Pentagon
Papers case) and U.S. v. Richard M. Nixon (1974) 418 U.S. 683: 41 L. Ed.
2nd 1035 what is known as Watergate Tapes case, the Supreme Court
of U.S.A. rejected the claim of the President not to disclose the
conversation he had with the officials.
Judicial review is a basic feature of the Constitution. This Court
has constitutional duty and responsibility to exercise judicial review as
=98=
centennial que vive. Judicial review is not concerned with the merits of
the decision, but with the manner in which the decision was taken.
In the case of R.K. Jain vs. Union of India (UOI) and others,
reported in AIR 1993 SC 1769, the Supreme Court of India observed:
“The Administrative Procedure Act 5, Article 52 was
made. There under it was broadly conceded to permit
access to official information. Only as stated here in before
the President is to withhold top secret documents
pursuant to executive order to be classified and stamped as
‘highly sensitive matters vital to our national defence and
foreign policies’. In other respects under the Freedom of
Information Act, documents are accessible to production.
In the latest Commentary by McCormick on Evidence, 4th
Ed. By John W. Strong in Chapter 12, surveyed the
development of law on the executive privilege and stated
that at p.155, that once we leave the restricted area of
military and diplomatic secrets, a greater role for the
judiciary in the determination of governmental claims of
privilege becomes not only desirable but necessary –
Where these privileges are claimed, it is for the judge to
determine whether the interest in governmental secrecy is
outweighed in the particular case by the litigant’s interest
in obtaining the evidence sought. A satisfactory striking of
this balance will, on the one hand, require consideration of
the interests giving rise to the privilege and an assessment
of the extent to which disclosure will realistically impair
those interests. On the other hand, factors which will affect
the litigant’s need will include the significance of the
evidence sought for the case, the availability of the desired
information from other sources, and in spa instances the
nature of the right being asserted in the litigation.”
=99=
Based on the decisions above, my considered view is that since
reasons would form part of the advice, the Court would be precluded
from calling for their disclosure but Article 48(3) of the Constitution is
no bar to the production of all the materials on which the advice was
based.
Accordingly, I am of the view that the writ petition filed by the
appellant is very much maintainable.
Another fold of argument advanced by the learned Attorney
General that the appellant failed to qualify the criteria for appointment
as a Judge as enumerated in Article 95(2)(a) of the Constitution i.e.
when appointed as an Additional Judge under Article 98 the appellant
was not a practicing Advocate of the Supreme Court for 10(ten) years.
In this context I share the views expressed by my brothers Md. Abu
Zafor Siddique, J. and Jahangir Hossain, J.
I am also share the view of my brothers M. Enayetur Rahim, J.,
Md. Abu Zafor Siddique, J. and Jahangir Hossain, J. that the case of the
appellant may be considered by the appropriate authority concerned.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is also
disposed of in the light of the judgment and order passed in Civil
Appeal No.232 of 2014.
No order in respect of Civil Petition for Leave to Appeal No.2680
of 2014 as it has been abated at the death of sole petitioner.
=100=
However, no order as to costs.
J.
M. Enayetur Rahim, J: I have had the opportunity to go through
the main judgment proposed to be delivered by my learned brother
Obaidul Hasan, J. as well as the individual views/opinions expressed
by learned brothers Md. Ashfaqul Islam, J. Md. Abu Zafor Siddique, J.
and Jahangir Hossain, J.
I am in agreement with the ultimate decision and observations
made by my learned brother Obaidul Hasan, J.
However, on some issues I would like to express my own
opinions.
On behalf of the respondents, the question of maintainability of
the writ petition has never been agitated and leave was not granted on
the said issue. However, my learned brother Obaidul Hasan, J has
opined that in view of the provision of article 51 of the Constitution
the writ petition is not maintainable.
Article 51 of the Constitution is as follows:
“51.(1) Without prejudice to the provisions of article 52,
the President shall not be answerable in any court for
anything done or omitted by him in the exercise or
purported exercise of the functions of his office, but this
clause shall not prejudice the right of any person to take
proceedings against the Government
(2) During his term of office no criminal proceedings
whatsoever shall be instituted or continued against the
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President in, and no process for his arrest or
imprisonment shall issue from, any court.”
Upon meticulous examination of the above provision of the
constitution, it is my considered view that article 51(1) consist of two
parts. First part is, the President shall not be answerable in any court
for anything done or omitted by him in the exercise or purported
exercise of the functions of his office. Second one is, despite the above
provision the right of any aggrieved person to take proceedings
against the Government has been guaranteed.
Article 51(2) speaks that during the term of office of the
president, no criminal proceedings whatsoever shall be instituted or
continued against the President, and no process for his arrest or
imprisonment shall be issued from any Court.
Article 48(3) of the constitution speaks that President in the
exercise of all his functions, save only that of appointing the Prime
Minister pursuant to clause (3) of article 56 and the Chief Justice
pursuant to clause (1) of article 95 shall act inaccordance with the
advice of the Prime Minister.
Article 55(4) of the constitution requires that all executive actions
of the Government shall be taken in the name of the President.
If we read article 48(3) and 55(4) of the constitution together,
then it is abundantly clear that except in two occasions, the decision of
the President is nothing but the decision of the executive including the
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appointment of Judge(s), Additional Judge(s) of both the Divisions of
the Supreme Court.
It is now well settled that judicial review is concerned with
reviewing not the merits of the decision in support of which the
application for judicial review is made, but the decision making
process itself and further, that in judicial review, court can examine
whether in a given case the authority concerned has acted bonafide,
reasonably, just and fairly and also within its jurisdiction.
In the case of Hyundai Corporation vs. Sumikin Bussan
Corporation and others, reported in 54 DLR(AD),88 this Division has
observed that:
“Transparency in the decision making as well as in the
functioning of the public bodies is desired and the judicial
power of review is to be exercised to rein in any unbridled
executive functioning.”
In the case of Tata Cellular vs. Union of India, AIR 1966 (SC)11,
wherein the Supreme Court of India has been held to the effect:
“The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is exercised
for any collateral purpose the exercise of that power will be
struck down.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .
Judicial review is concerned with reviewing not the merits
of the decision in support of which the application of
judicial review is made, but the decision making process
itself.”
=103=
From the records it reveals that prayers made in the present writ
petition by the appellant and writ petition NO.1543 of 2003, heard
along with writ petition Nos.3217 & 2975 of 2003 are also most similar
and identical.(Ten Judges’ cases)
This Division in deciding the Civil Petition for leave to appeal
Nos.2221 and 2222 of 2008 with Civil Petition for leave to appeal
Nos.2046 and 2056 of 2008 [Bangladesh and others vs. Md. Idrisur
Rahman and others, 29 BLD(AD),29], which had arisen out of the
judgment passed in above mentioned ‘Ten judges’ cases’ has held that
judicial review only limited purpose is available in matter of
appointment of judges.
It is pertinent to discuses here that the President of our country
has been given the power of pardon and reprieves under article 49 of
the Constitution of the People’s Republic of Bangladesh.
No doubt President’s such power of granting pardon is very
wide and does not contain any limitation as to the time and occasion
on which and the circumstances in which such power could be
exercised. The pardoning power granted to the President was
historically a sovereign power, politically a residency power and
harmonistically an aid of intangible justice. However, the judicial
review of the pardoning power is a classic illustration of evolution of
law through judicial interpretation. Starting with extreme hesitation to
even look into the subject, the trend has now shifted towards a more
=104=
balance and middle path approach. In the case of Chandra Rabha vs.
Khagendra Nath, MANU/SC/0190/1960 the Supreme Court of India
has clearly made a distinction between judicial and executive power,
which according to it operates a different plans, and one does not
affect the other.
Article 72 and Article 161 of the constitution of India are similar
to article 49 of our Constitution. Article 72 and 161 of the constitution
of India have conferred power upon the president of India and the
Governor of the States respectively to give pardon or remit sentence of
a convict.
In the case of Maru Ram vs. Union of India reported in
AIR(SC),1980, 2147, it has been held that:
“Considerations for exercise of power under Articles
72/161 may be myriad and their occasions protean and are
left to the appropriate Government, but no consideration
nor occasion can be wholly irrelevant, irrational,
discriminatory or malafide. Only in these rare cases will
court examine the exercise.”
In the case of Kehar Singh vs. Union of India reported in Air
1989(SC) 653, it has been held that:
“Upon the consideration to which we had adverted, it
appears to us clear that the question as to the area of
Presidents power under Art, 72 falls squarely within the
judicial domain and can be examined by the Court.”
=105=
In the case of Swaran Singh vs. State of UP, reported in (1998)
SCC 75, it has been held that:
“In view of the said aforesaid settled legal proposition, we
cannot accept the rigid contention of the learned counsel of
the third respondent that this court has no power to touch
the order passed by the Governor under Article 161 of the
Constitution. If such power was exercised arbitrary,
malafide or in absolute disregard of the finer canons of the
constitutionalism, the byproduct order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it.”
In the above case the Supreme Court of India ultimately quashed
the order of remission of sentence of convict Shri Doodh Nath, an
MLA of Uttar Pradesh, on the ground that governor was not posted
with material facts and thereby, he was apparently deprived of the
opportunity to exercise the powers in a fair and just manner. And the
supreme court of India held that: “the order now impugned fringes on
arbitrariness.”[Underlines supplied]
In the case of Shatapal vs. State of Haryana, reported in AIR
2000 (SC) 1702, similar view has been reiterated. In the said case also
the order granting pardon was set aside on the ground that Governor
had not applied his mind to the material on record and has
mechanically passed the order just to allow the prisoner to overcome
the conviction and sentence passed by the court.
=106=
In deciding the merit of the above appeal, the Supreme Court of
India categorically held that:
“There cannot be any dispute with the proposition of law
that the power of granting pardon under Article 161 is
very wide and do not contain any limitation as to the time
on which and the occasion on which and the circumstances
in which the said powers could be exercised. But the said
power being a constitutional power conferred upon the
Governor by the Constitution is amenable to judicial
review on certain limited grounds. The Court, therefore,
would be justified in interfering with an order passed by
the Governor in exercise of power under Article 161 of the
Constitution if the Governor is found to have exercised the
power himself without being advised by the Government
or if the governor transgresses the jurisdiction in
exercising the same or it is established that the Governor
has passed the order without application of mind or the
order in question is a malafide one or the Governor has
passed the order on some extraneous consideration.”
[underlines supplied]
In the Airport Authority case MANU/SC/0048/1979(1979)
IILLJ217SC the Supreme Court of India has held that:
“Every action of the executive Government must be
informed with reason and should be free from
arbitrariness. That is the very essence of the rule of law
and its bare minimal requirement.
It is the pride of our constitutional order that all power,
whatever its source, must, in its exercise, anathematize
arbitrariness and obey standards and guidelines
intelligible and intelligent and integrated with the
=107=
manifest purpose of the power. From this angle even the
power to pardon, commute or remit is subject to the
wholesome creed that guidelines should govern the
exercise even of presidential power.”
In view of the above propositions, the court cannot declare
judicial hands off. So long as the question arises whether an authority
under the constitution has acted with the limit of its power or
exceeded it or the power has been exercised without application of
mind and mechanically or the order in question is a mala fide one or
the order has been passed on some extraneous consideration or how
far the order is fair and reasonable it can certainly be examined and
decided by the court in judicial review. The court cannot be debarred
to examine the decision making process and the correctness of the
decision itself.
A Division Bench of the High Court Division in the case of
Sarwar Kamal vs. The State, reported in 64 DLR(2012) page-329 has
observed:
“.........the action of the president or the Government, as
the case may be, must be based on some rational,
reasonable, fair and relevant principle which is non
discriminatory and it must not be guided by any
extraneous or irrelevant considerations. It is well settled
that all public power including constitutional power shall
never be exercisable arbitrarily or malafide and ordinarily,
guideline for fair and equal execution are guarantors of the
valid play or power and when the mode of power of
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exercising a valid power is improper or unreasonable,
there is an abuse of power”. [Underlines supplied]
It is pertinent to mention here that being aggrieved by the
aforesaid judgment convict Sarwar Kamal filed criminal petition for
leave to appeal No.474 of 2012 before this Division, which was
dismissed for default and eventually, application for restoration was
rejected.
In view of the above propositions as discussed above, I have no
hesitation to hold that the writ petition filed by the present appellant is
not barred in view of the provision of article 51 of the Constitution.
This article, in my opinion gives the President personal immunity
from any kind of civil and criminal proceedings during his term of
office. This immunity does not debar any aggrieved person to take
any proceedings against the decision taken by the Government in view
of provision of the 2nd part of the article 51(1).
Further, if it is hold that the writ petition is not maintainable,
then question would be that in what extent Court can make
observations and give directions on such writ petition.
Thus, I am in respectful disagreement with the observation of
my learned brother Obaidul Hasan, J. that in view of article 51 of the
constitution the writ petition is not maintainable.
Article 95(1) of our constitution enshrined that the judges of the
both the Division of the Supreme Court shall be appointed by the
president after ‘consultation’ with the Chief Justice.
=109=
However, reality is that no guideline(s) or rule(s) is provided or
framed for the President to exercise his power of consultation with the
Chief Justice for appointment of the Judges.
In the ‘Ten Judges’ case High Court Division dealt with the
word ‘consultation’ and its scope and purport. The High Court
Division observed [61 DLR, 523]:
“Consult’, according to Chambers Dictionary, means to
ask advice of : to look up for information or advice: to
consider wises, feelings to discuss. In R Pushpam vs
State of Madras AIR 1953 Mad 392 it was observed
“The word ‘consult’ implies a conference of two or more
persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct, or at least,
a satisfactory solution; would provide rational, legal
constitutional yardstick to measure and ascertain the scope
and content of consultation as contemplated by Article
217(1). It must not be forgotten that the consultation is
with reference to the subject matter of consultation and
therefore relevant facets of the subject matter must be
examined, evaluated and opined upon to complete the
process of consultation. It is necessary that consultation
shall be directed to the essential points and to the core of
the subject involved in the discussion. The consultation
must be enabling the consulter to consider the pros and
cons of the question before coming to a decision. A person
consults another to be elucidated on the subject matter of
the consultation.”[underlines supplies]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
In SP Gupta’s case Bhagwati J, observed as follows:
=110=
“The question immediately arises what constitutes
‘consultation’ within the meaning of clause(2) of Article
124, clause(1), Article 217. Fortunately, this question is
no longer res integra and it stands concluded by the
decision of this Court in Sankalchand Sheth’s case (AIR
1977 SC 2328) (supra). It is true that the question in
Sankalchand Sheth’s case (supra) related to scope and
meaning of ‘consultation’ in clause(1) of Article 222, but
it was common ground between the parties that
‘consultation’ for the purpose of clause(2) of Article 124
and clause(1) of Article 217 has the same meaning and
content as ‘consultation’, in clause(1) of Article 222.”
And
“Krishna Iyer J. speaking on behalf of himself and Fazal
Ali J also pointed out that “all the materials in the
possession of one who consults must be unreservedly
placed before the consultee” and further “a reasonable
opportunity for getting information taking other steps and
getting prepared for tendering effective and meaningful
advice must be given to him” and consultant in turn must
take the matter seriously since the subject is of grave
importance.”
In Al-Jahed Trust case the Supreme Court of Pakistan approved
the majority views with certain modification of the Second Judges’ Case.
The unanimous views are as follows:
“The words “after consultation” employed, inter alia, in
Articles 177 and 193 of the Constitution connote that the
consultation should be effective, meaningful, purposive,
consensus oriented, leaving no room for complaint of
arbitrariness or unfair play”.
=111=
In view of the above propositions ‘Consultation’ means
‘effective consultation’. Such consultation of the President with the
Chief Justice for the purpose of appointment of Judges in the Supreme
Court is not a mere formalities, in other words it's not ‘chatting at the
tea table’; rather, it has a great sanctification, significance, importance,
consequence and far reaching effect.
In the Ten Judges’ cases this Division categorically held that:
“In the matter of selection of the Judges the opinion of the
Chief Justice should be dominant in the area of legal
acumen and suitability for the appointment and in the
area of executive should be dominant. Together, the two
should function to find out the most suitable candidates
available for appointment through a transparent process of
consultation.”
In view of the above, to avoid any controversy in the
appointment of judges’ it is desirable that at the time of consultation
the executive should place all materials relating to the antecedents
before the Chief Justice and Chief Justice shall also place necessary
opinions as to his satisfaction in the area of legal acumen and
suitability for the appointment.
It is expected that in the process of consultation the President
and Chief Justice will reach a consensus and outcome of such
consensus cannot be frustrated or dismissed on any unreasonable plea
or on some extraneous consideration in the grab of exercising the
power under article 48(3) of the constitution. If the positive outcome or
=112=
consensus of the consultation is negated, then the position and image
of both the President and Chief Justice will be undermined.
In the second Judge’s case JS Verma,J. opined that:
“in order to ensure effective consultation between all the
constitutional functionaries involved in the process the
reasons for disagreement, if any must be disclosed to all
others. All consultations with the everyone involved must
be in writing and transmitted to all concerned, as a part of
the record.”[Underlines supplied]
In view of the above, it will be not a luxurious and unjust
expectation that our Constitutional authorities involved in the process
of appointment of Judge shall follow the above method, until relevant
law or rules have been made.
In this particular case from the records, as we have seen, it
reveals that the name of the appellant was recommended by the Chief
Justice. However, reasons are not available in the record for not
appointing him and under the Constitutional scheme, the Court has no
authority to make an inquiry of privilege communication, verbally or
written as the case may be, between the Prime Minister and the
President.
However, I am agreed with the wish as expressed by my learned
brothers Md. Ashfaqul Islam J, Md. Abu Zafor Siddique J, and
Jahangir Hossain J, that the case of the appellant be considered by the
authority.
J.
=113=
Md. Ashfaqul Islam, J: I have had the occasion of going
through the Judgments proposed to be delivered by my learned
brothers, Obaidul Hassan, J., Md. Abu Zafor Siddique, J. and Jahangir
Hossain, J. Upon a thorough assessment and overall aspects of the
issue facing us I am in agreement with the findings and decision of my
brother Obaidul Hassan, J and record my reasons as under:
Repetition of fact is not necessary as his lordship has given an
elaborate and exhaustive deliberation upon the same. The facts only
which are necessary to be discussed in this context, would be
addressed.
The cardinal question before us is whether even after the
recommendation of the Chief Justice upon effective consultation to
appoint a Judge under Article 95(1) of the Constitution the executive is
left with the choice to drop any name so recommended by the Chief
Justice to be appointed as the Judge of the Supreme Court under
Article 95(1) of the Constitution.
Consequently, the provisions of the Constitution governing the
appointment of Judges (Article 95), the appointment of Additional
Judges of the Supreme Court (Article 98) together with the limitation
of the power of the President under Article 48(3) have to be considered
as they have significantly focused on the issue.
Inevitably, the interpretation of the above provisions in this
context has to be made by taking recourse to the methods which are
suggested by the Constitution itself to be followed in so doing. It has
=114=
to be noted that the provisions of the Constitution as stated above are
the outcome of the positive and cohesive thinking of the framers of the
Constitution which they in their wisdom thought it proper to be
incorporated in the Constitution in the manner as they exist in the
Constitution to meet different situations, exigencies and requirements.
Otherwise those provisions would not have been there.
Keeping primarily in mind what I have discussed let me now
dwell upon the issue before me. The appointment of the Judges of
both the Divisions of the Supreme Court by recommending and
selecting names of the eligible persons apparently seems to be noble as
it endeavors in the process of appointment to uphold the primacy of
the Chief Justice of Bangladesh in the searching who are the best
choice to become member of their own fraternity. Pertinently, it has to
be mentioned that no implied limitation, can be applied while
interpreting a written Constitution like ours when the limitations are
clearly spelled out in the provision of the Constitution itself.
A rock solid basis of the Constitution requiring a very intrinsic
interpretation is Article 48(3) and its proviso which has to be
considered in this regard. Under Article 48(3) excepting the
appointment of the Prime Minister and the Chief Justice, the President
shall be acting in accordance with the advice of the Prime Minister. So
the express Constitutional provision which limits the power of the
President under Article 48(3) is unquestionable. Mr. Mahmudul Islam
in his book ‘Constitutional Law of Bangladesh’ stated that-
“Art. 48(3) provides that the question whether any, and if
so what, advice has been tendered by the Prime Minister to
=115=
the President shall not be inquired into by any court as it is
politically undesirable to have a disclosure of the advice
tendered. Because of this provision there can be no remedy
in court if a President chooses to act without or against the
advice of the Prime Minister. It is true that the possibility
of impeachment for violating the Constitution will act as a
deterrent, but "this fear in the world of political intrigues
that are incidental to the game of power-politics, is not,
after-all such an effective brake upon the designs of an
irresponsible President." If the government produces the
papers showing the advice tendered, the court may look
into such papers and can come to its findings on the basis
of such papers.” India v. Jyoti Prakash, AIR 1971 SC 1093.
The power of the appointment of the Judges of the Supreme
Court lies with the President who exercises the power within the
limitations of Article 48(3) of the Constitution. The President appoints
additional judges of the Supreme Court and the Judges of the Supreme
Court under Articles 98 and 95 of the Constitution respectively. When
the President is satisfied that the number of Judges of the Supreme
Court should be increased he makes appointment. Before the Fourth
Amendment of the Constitution, the Chief Justice was to be consulted
while making the appointment of the Judges of the Supreme Court.
Though the said provision of Constitution had been amended by the
Fourth amendment ignoring consultation with the Chief Justice for the
appointment of Judges even then the ‘convention’ of consulting with
the Chief Justice before making any appointment of the Judges of the
=116=
Supreme Court had been followed consistently. A deviation that
happened in 1994 was cured forthwith reaffirming the convention as it
used to be followed before. The fifteenth amendment, however,
reproduced the provision of consultation with the Chief Justice in the
matter of appointment of the judges of the Supreme Court.
While appreciating the core issue before us regard has to be
taken whether Article 95(1) of the Constitution under which judges of
the Supreme Court is appointed should be construed giving a strict
interpretation employing a sense of rigidity or it should be interpreted
and viewed with a liberal and flexible vision by taking into account
some other related Constitutional Provisions and also from the
perspective of some realities and unimpeachable circumstances.
My approach on the point is somewhat different. I would like to
embark upon some express constitutional aspects having an indelible
ingrained meaning and status universal in nature, to appreciate the
entire issue facing us.
Let me first focus upon the different views taken by the superior
Courts of home and abroad on the norms of the interpretation of the
Constitutional provisions. It is generally said that the principles
relating to interpretation of statutes are applicable in interpreting the
provisions of Constitution. In the decision of Commissioner of Tax vs.
Gulistan Cinema 28 DLR (AD) 14, Kemaluddin Hossain, J observed:
"The rule of interpretation of the Constitution is same as
the interpretation of a Statute."
=117=
In the case of Syed Ghulam Ali Shah V. State 22 DLR (SC) 247 M
R Khan, J observed what should be the mode of interpretation of the
Constitutional provisions in the following manner,
“Now it is another well recognized cannon of
interpretation that a provision of a Constitution Act should
not be construed in a narrow or restricted sense, but widest
possible construction should be given to it according to the
ordinary meaning of the word used and each general word
should be held to extend to all ancillary and subsidiary
matters which can fairly and reasonably be said to be
comprehended in the same.”
Same view was taken in Mohammad Nur Hussain -Vs- Province
of East Pakistan PLD 1959 (SC) 470.
Mr. Mahmudul Islam, Senior Advocate, Supreme Court in his
Constitutional Law of Bangladesh while giving his deliberation on
liberal interpretation of the Constitution has found, "If two
constructions are possible, the court shall adopt that which
implements, and discard that which stultifies the apparent intention of
the framers of the Constitution. The rule of strict construction applied
to penal and fiscal statutes is not applicable in the matter of
Constitutional interpretation. Constitutional enactment should be
interpreted liberally and not in any narrow or pedantic sense".
Likewise Seervai in his ‘Constitutional Law of India’ on the same
point found, "well established rules of interpretation require that the
meaning and intention of the framers of a Constitution be it a
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parliament or a Constituent Assembly- must be ascertained from the
language of that Constitution itself; Seervai further viewed that the
golden rule in construing a Constitution conferring the most liberal
construction should be put upon the words so that they may have
effect in their widest amplitude.”
In the famous case of A.K. Gopalan-V- State of Madras AIR 1950
(SC)27, Justice B.K. Mukherjea expressed his view in the manner:
“The Constitution must be interpreted in a broad and
liberal manner giving effect to all its parts, and the
presumption should be that no conflict or repugnancy was
intended by its framers. In interpreting undoubtedly apply
which are applicable in construing a statute, but the
ultimate result must be determined upon the actual words
used not in vaccuo but as occurring in a single complex
instrument in which one part may throw light on the
other.”
In the land mark decision of S.C. Advocate-on-Record
Association vs. Union of India reported in AIR 1994 (SC) 268 Supreme
Court of India in an unambiguous term interpreted the provision of
the Constitution. In that decision it was held that the general Rule
governing statutory interpretation that statute should be read as
having a fixed meaning, speaking from the date of enactment is not
applicable in the case of Constitutional interpretation. It is
undoubtedly that terms of the Constitution are to be interpreted by
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reference of their meaning when it was framed, but it does not mean
that they are to be read as comprehending only such manifestation on
the subject matter named as were known to the framer.
In that decision Justice S. Ratnavel Pandian observed:
“The proposition that the provisions of the Constitution
must be confined only to the interpretation which the
framers, with the conditions and outlook of their time
would have placed upon them would not be tenable and is
liable to be rejected for more than one reason-firstly, some
of the current issues could not have been foreseen;
secondly, others would not have been discussed and
thirdly, still others may be left over as controversial issues,
i.e. termed as deferred issues with conflicting intentions.
Beyond these reasons, it is not easy or possible to decipher
as to what were the factors that influenced the mind of the
framers at the time of framing the Constitution when it is
juxtaposed to the present time. The inevitable truth is that
law is not static and immutable but ever increasingly
dynamic and grows with the ongoing passage of time.”
Justice Kuldip Singh maintained,
“It is not enough merely to interpret the Constitutional
text. It must be interpreted so as to advance the policy and
purpose underlying its provisions. A purposeful meaning,
which may have become necessary by passage of time and
process of experience, has to be given. The Courts must
face the facts and meet the needs and aspirations of the
times. Interpretation of the Constitution is a continual
process. The institutions created thereunder, the concepts
propounded by the framers and the words, which are
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beads in the Constitutional-rosary, may keep on changing
their hue in the process of trial and error, with the passage
of time. The Constitution has not only to be read in the
light of contemporary circumstances and values, it has to
be read in such a way that the circumstances and values of
the present generation are given expression in its
provisions.”
Even Justice A.M. Ahmadi who delivered a dissenting judgment
in that decision further made it clear,
“The concern of the judiciary must be to faithfully interpret
the Constitutional provisions according to its true scope
and intent because that alone can enhance public
confidence in the judicial system.”
There is an interesting aspect to be noted here which is also
relevant in the context. The Constitution of India was published on the
26th day of November 1949 and only a year after of the said
publication the famous decision of A.K. Gopalan V. State of Madras
AIR (1950) SC 27 was delivered wherein, as I have already discussed,
the concept of liberal interpretation of the Constitution was
propounded. To my utter surprise I find that even after 44 years of
that decision the same concept of liberal interpretation of the
Constitution remained unchanged as it could be found in the land
mark decision of S.C. Advocate-on-Record V. Government of India
AIR(1994) S.C. 268 which I have discussed.
In Ministry of Home Affairs V. Fisher reported in 3 All E.R.
(1979) 21 their Lordships of the Privy Council observed,
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“This is in no way to say that there are no rules of law
which should apply to the interpretation of a Constitution.
A Constitution is a legal instrument giving rise, amongst
other things, to individual rights capable of enforcement in
a Court of law respect must be paid to the language which
has been used and to the traditions and usage which have
given meaning to that language.”
From its' inception the American Supreme Court felt that a
Constitution must be given a treatment different from statutes and
proceeded on liberal interpretation. In Mc. Culloch v. Maryland it
observed, "We must never forget that it is a Constitution we are
expounding" and went on to say that a Constitution is intended to
endure for ages to come and consequently to be adapted to the various
crises of human affairs. In the words of famous American legal scholar
Roscoe Pound-
“The Constitution is not a glorified police manual.
Constitutional provisions lay down great principles to be
applied as starting points for legal and political reasoning
in the progress of society. A Constitution may lay down
hard and fast rules such as, for example, those fixing the
exact terms of office and apportioning duties among public
functionaries. But the principles established by the
Constitution are not to be interpreted and applied strictly
according to the literal meaning of words used by the
framers as if they laid down rules. Interpretation of
Constitutional principles is a matter of reasoned
application of rational precepts to conditions of time and
place.”
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The American Constitution is treated to be the most rigid and
inflexible Constitution.
Keeping in the back of mind what I have discussed let me now
digress upon the issue before me.
Comprehensive, integrated and holistic approach in
propounding the legal principle enunciated in the cases of S.P Gupta
and others vs. president of India and others, reported in AIR 1982 SC
149, S.C. Advocates-on-Record V. Union of India AIR 1994 SC 268,
Bangladesh and others vs. Md. Idrisur Rahman, Advocate and others
29 BLD AD 79, Al-Jehad Trust Case PLD 1996 SC 324, Ragib Rauf
Chowdhury vs. Government of Bangladesh and others 69 DLR 317
and so on are all awe-inspiring well founded concerted decisions
having an epitome all its own. All of them preached the primacy of the
Chief Justice in the process of appointment of the Judges. Since much
elaborations upon all these decisions have already been given by my
learned brothers I refrain from repeating those.
In Shanti Bhushan vs. Union of India 2009 1 SCC 657
Respondent was appointed as additional Judge with effect from
03.04.2003. However, in between, seven Additional Judges were
appointed as permanent Judges on 27.07.2005 but the incumbent
respondent was left out and was given extension as Additional Judge.
The Supreme Court of India with disapproval of the aforesaid
extension observed:
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“If a person is unsuitable to be considered for appointment
as a permanent Judge because of circumstances and events
which bear adversely on mental and physical capacity,
character and integrity or other relevant matter rendering
it unwise for appointing him as a permanent Judge, same
yardstick has to be followed while considering whether
any extension is to be given to him as an Additional
Judge.”
It was also observed:
“As rightly submitted by learned Counsel for the Union of
India unless the circumstances or events arise subsequent
to the appointment as an Additional Judge, which bear
adversely on the mental and physical capacity, character
and integrity or other matters the appointment as a
permanent Judge has to be considered in the background
of what has been stated in S.P. Gupta's case (supra).
Though there is no right of automatic extension or
appointment as a permanent Judge, the same has to be
decided on the touchstone of fitness and suitability
(physical, intellectual and moral). The weightage required
to be given cannot be lost sight of. As Justice Pathak J, had
succinctly put it there would be reduced emphasis with
which the consideration would be exercised though the
process involves the consideration of all the concomitant
elements and factors which entered into the process of
consultation at the time of appointment earlier as an
additional Judge. The concept of plurality and the limited
scope of judicial review because a number of constitutional
functionaries are involved, are certainly important factors.
But where the constitutional functionaries have already
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expressed their opinion regarding the suitability of the
person as an Additional Judge, according to us, the
parameters as stated in para 13 have to be considered
differently from the parameters of para 12. The primacy in
the case of the Chief Justice of India was shifted because of
the safeguards of plurality. But that is not the only factor.
There are certain other factors which would render the
exercise suggested by the petitioners impracticable.
Having regard to the fact that there is already a full
fledged participative consultation in the backdrop of
pluralistic view at the time of initial appointment as
Additional Judge or Permanent Judge, repetition of the
same process does not appear to be the intention.”
Article 95(1) of the Constitution in clear terms manifested
consultation with the Chief Justice before appointment of a judge
under that Article. Effective consultation so to say primacy of the
Chief Justice’s recommendation in the process of appointment has
been a well grained and unquestionable requirement but the fact
remains what will be the situation if an appointment of a judge is hit
by the positive prohibition under Article 95(2) regardless of the
detection of the same at any point of time?
Article 95(2) provides:-
“A person shall not be qualified for appointment as a
Judge unless he is a citizen of Bangladesh and–
(a) has, for not less than ten years, been an advocate of the
Supreme Court ; or
(b) ……………
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(c) has such qualifications as may be prescribed by law for
appointment as a Judge of the Supreme Court.”
My brother Obaidul Hassan, J has given a thought provoking
analysis of this issue in minute details and hence I am not required to
cross swords on that. Harping on the same tune I would fortify that
the aforesaid provision 95(2)(a) of ours, unlike Indian Constitution on
the point (Article 217(2)(b)), is rigid and dogmatic.
Indian Constitution in this respect has given a relaxation
incorporating Article 217(2) explanation (aa). In 1978 by 44th
amendment act this provision was incorporated. It provides:-
“in computing the period during which a person has been
an advocate of a High Court, there shall be included any
period during which the person has held judicial office or
the office of a member of a tribunal or any post, under the
Union or a State, requiring special knowledge of law after
he became an advocate.”
Since no such provisions has been attached in our Constitution
in respect of Article 95(2)(a), the same cannot be stretched inducting
any analogy enhancing its scope. The case of appellant ABM Altaf
Hossain has certainly fall within the mischief of positive prohibition of
Article 95(2) of the Constitution as hinted with approval by my
brother Obaidul Hassan, J.
At the same time I also record that to uphold the primacy of the
Chief Justice any legal lacuna or predicament which might have
negate the appointment in any manner should have been brought to
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the notice of the Chief Justice at the earliest. Regrettably, that has not
been done in the instant case. Recommendation of Chief Justice is
certainly prime and sublime but at the same time if there is any
inherent defect which has escaped notice of the Chief Justice because
of mistake or otherwise the interpretation of the Constitution of ours
to that extent is rigid.
Incumbent Appellant ABM Altaf Hossain’s case has been
assessed and evaluated with all the trappings of interpretation of the
Constitution as discussed above and nothing is left unsaid.
Before parting I would record that with the lapse of time if the
appellant has acquired qualification to be appointed as a Judge of the
Supreme Court that may be considered by the authority favorably.
With the above observations, the Civil Appeal No. 232 of 2014 is
hereby disposed of.
Civil petition for leave to appeal No. 602 of 2017 is also disposed
of in the light of the observations as stated above. No order in respect
of civil petition for leave to appeal No. 2680 of 2014 as it has been
abated at the death of the sole petitioner.
J.
Md. Abu Zafor Siddique, J: I have gone through the judgments
proposed to be delivered by my learned brothers, Obaidul Hassan, J.
and Jahangir Hossain, J. Having gone through the same, I find myself
in agreement with the decision and findings arrived at by my learned
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brother, Jahangir Hossain, J. It is required to be mentioned that we
have come to an unanimous decision of disposing of this appeal with
the individual findings and observations of our own. Accordingly, I
would like to write the judgment of my own since the points involve
in this appeal are on the constitutional question of special importance
with regard to the appointment of the Judges under article 95 of the
Constitution on the consultation with the Hon’ble Chief Justice.
This civil appeal, by leave, is directed against the judgment and
order dated 24.09.2014, passed by the High Court Division in Writ
Petition No.7489 of 2014 summarily rejecting the same.
Facts, leading to this civil appeal, in short are as follows:
The appellant obtained L.L.B (Hon’s) and L.L.M. Degree with
First Class from the University of Rajshahi. He also obtained L.L.B
(Hon’s) from the University of Wolverhampton, U.K., Post Graduate
Diploma in Professional and Legal Skills from Inns of Court School of
Law, City University, London and after successful completion of Bar
Vocational Course from the same University he was called to the Bar
as a Barrister by the Hon’ble Society of Lincoln’s Inn, London, UK. He
also obtained Diploma in Human Rights with distinction from
Humanist and Ethical Association of Bangladesh. He was enrolled
with the Bangladesh Bar Council as an Advocate on 06.12.1998 and he
was permitted to practice in the High Court Division on 18.06.2000
and thereafter, he was enrolled as an Advocate of the Appellate
Division of the Supreme Court on 18.05.2011. He was appointed as a
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Deputy Attorney General for Bangladesh on 03.11.2010 and while
serving as a Deputy Attorney General, he was appointed as an
Additional Judge of the High Court Division of the Supreme Court of
Bangladesh along with five other Additional Judges under article 98 of
the Constitution vide Notification No.10. 00. 0000. 128. 011. 010. 2012-
816 dated 13.06.2012 and accordingly, he was administered oath as
such along with other five Judges on 14.06.2012.
It is further stated that as an Additional Judge of the High Court
Division, the appellant performed his functions and discharged his
duties with utmost sincerity, integrity, honesty and diligence as an
oath-abiding Judge. On due consideration and evaluation of the
performance rendered by the appellant as an Additional Judge, the
Hon’ble Chief Justice recommended the names of all the six
Additional Judges including the appellant for appointment as a Judge
of the High Court Division of the Supreme Court of Bangladesh under
article 95 of the Constitution by the Hon’ble President and such fact of
recommendation by the Hon’ble Chief Justice has been widely
published in the newspapers. However, it is stated that, to the utter
surprise and disappointment, he came to know from the Gazette
Notification No.10 .00 .0000. 128. 011. 010. 2012-472 dated 09.06.2014
by which the other five Additional Judges with whom he was
appointed under article 98 of the Constitution have been appointed by
the Hon’ble President under article 95 of the Constitution as Judges of
the High Court Division excluding the name of the appellant.
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In the circumstances, the appellant had filed the writ petition
bringing the allegation of violation of articles 94 and 95 of the
Constitution as well as the principle as settled by this Division in the
case of Bangladesh and others Vs. Idrisur Rahman, Advocate and
others reported in 29 BLD (AD)79 for not appointing him as a Judge
of the High Court Division under article 95 of the Constitution despite
the fact that the Hon’ble Chief Justice of Bangladesh who has legal
acumen in this field and being empowered under the Constitution has
recommended him along with other five Judges to be appointed as a
Judge under article 95 of the Constitution.
The High Court Division, upon hearing the parties and on
perusal of the writ petition along with all connected papers annexed
thereto, rejected the writ petition summarily by the judgment and
order dated 24.09.2014.
Being aggrieved by and dissatisfied with the judgment and
order dated 24.09.2014 passed in Writ Petition No.7489 of 2014 the writ
petitioner-appellant herein filed Civil Petition for Leave to Appeal
No.2626 of 2014 before this Division and obtained leave by order
dated 06.11.2014 which gave rise to the instant civil appeal.
The points/grounds involved in this appeal on which leave was
granted for determination and adjudication of the same run as follows:
I. Whether Article 95(1) of the Constitution having expressly
provided/stipulated that the Judges of the Supreme Court shall be
appointed by the President after consultation with the Chief Justice,
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the opinion and recommendation resulting from and being a part of
such consultation, the opinion/recommendation of the Chief Justice
shall have/get primacy over the views and opinions of the Executive
in the matter of the appointment of Judges, and the Chief Justice
having recommended the writ-petitioner as Judge for confirmation
and appointment under Article 95 of the Constitution, the
dropping of the name of the petitioner from the Notification dated
06.06.2014 ignoring the opinion/recommendation of the Chief
Justice without assigning any cogent reason is without lawful
authority and a violation of the Constitution.
II. Whether the independence of judiciary as enshrined in our
Constitution being a basic structure of our Constitution, which
cannot be demolished or curtailed or diminished in any manner,
and which basic structure cannot even be amended by the
Parliament being beyond its amending power by reason of Article
7B of the Constitution, and there being no provision in the
Constitution authorizing the President under Article 48(3) of the
Constitution to curtail or diminish the said independence by
ignoring the opinion/recommendation of the Chief Justice, non
appointment of the writ-petitioner ignoring and bypassing the
opinion of the Chief Justice is a violation of the basic structure of
the Constitution and as such dropping his name from the Gazette
Notification without cogent reason is without lawful authority and
unconstitutional.
III. Whether the constitutional process being initiated by the executive,
whose opinion in the matter of antecedents being already there, and
the Chief Justice in the process of consultation having had the
benefit of perusing and examining such opinion of the executive,
the opinion of the Chief Justice recommending the writ-petitioner
for appointment overruling/disregarding such executive opinion,
there cannot be any cogent reason for dropping the name of the
petitioner from the list of Judge to be appointed under Article 95,
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and as such, the impugned action is without lawful authority and
unconstitutional.
IV. Whether the case in question is not only a matter of an individual
petitioner not having been appointed under Article 95 of the
Constitution bypassing the recommendation of the Chief Justice,
but it also raises the important constitutional question centering
around the constitutional pole and exalted position and office of the
Chief Justice as head of the judiciary, and meaning of consultation
being effective and meaningful, the disregard without cogent
reasons of the opinion/recommendation of the Chief Justice is
tantamount to not only a violation of the Constitution but also
reducing and diminishing the power, position and role of the Chief
Justice under the Constitution.
V. Whether Ten Judges case as reported in 29 BLD(AD)page 79
having contained anomaly and inconsistency touching upon the
obiter dicta and ratio decidendi of the case, and there being an
observation in the impugned judgment of the High Court Division
that the Judges of the Appellate Division was silent on the question
of difference of opinion between the Chief Justice and Executive,
thereby leaving no way out to resolve the issue by the High Court
Division, in this case particularly having regard to the findings of
the Appellate Division in Ten Judges case that the opinion of the
executive will have dominance in the matter of antecedent, the
findings in Ten Judges case ought to be re-examined and revisited
for the sake of clear and unambiguous pronouncement from this
Division clarifying the said judgment, law and the Constitution.”
The learned Advocates appearing on behalf of the appellant
made submissions based on the grounds as quoted hereinabove on
which leave was granted to consider the same.
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Referring to the decision in the case of Bangladesh and others
Vs. Md. Idrisur Rahman and others reported in 29 BLD (AD) 79 the
learned Attorney General along with the learned Additional Attorney
General appearing on behalf of the respondents submit that since, the
opinion of the executive will have dominance in the matter of
antecedents of a candidate (judge) and since, the antecedent of the
appellant was not satisfactory, the Hon’ble President rightly did not
appoint the appellant as a permanent judge of the High Court Division
under article 95 of the Constitution and as such, the High Court
Division rightly rejected the writ petition summarily and the same
does not call for any interference by this Division.
Heard the learned Advocates and the learned Attorney General,
along with learned Additional Attorney General and perused the writ
petition along with the impugned judgment and papers annexed
thereto and also the constitutional provisions and the concerned
decisions placed by the parties.
Regarding the first point which is for adjudication by us is as to
whether the opinion and recommendation of the Chief Justice shall
have primacy over the views and opinions of the Executive in the
matter of appointment of Judges. In order to appreciate this point, it is
apposite to consider the Constitutional provisions relating to
consultation such as articles 95(1), 98, 116, 116A and the decisions of
Masdar Hossain’s case.
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Article 95(1) of the Constitution before its amendment in 1975
was as under:
“The Chief Justice shall be appointed by the President, and the other
Judges shall be appointed by the President after consultation with the
Chief Justice.”
After its amendment in 1975, article 95(1) runs as follows:
“The Chief Justice and the other Judges shall be appointed by the
President.”
Thus it is clear that the expression “after consultation with the
Chief Justice” is no more there in article 95(1) of the Constitution.
Again, article 98 of the Constitution before it’s amendment in
1975 was as under:-
“Notwithstanding the provisions of article 94, if the President is
satisfied, after consultation with the Chief Justice, that the number of
the Judges of a division of the Supreme Court should be for the time
being increased, the President may appoint one or more duly qualified
persons to be Additional Judges of that division for such period not
exceeding two years as he may specify, or if he thinks fit, may require a
Judge of the High Court Division to sit in the Appellate Division for
any temporary period;
Provided that nothing in this article shall prevent a person appointed
as an Additional Judge from being appointed as a Judge under article
95 or as an Additional Judge for a further period under this article.”
After it’s amendment in 1975, article 98 of the Constitution is as
under:-
“Notwithstanding the provisions of article 94, if the President is
satisfied that the number of the Judges of a division of the Supreme
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Court should be for the time being increased, the President may appoint
one or more duly qualified persons to be Additional Judges of that
division for such period not exceeding two years as he may specify, or if
he thinks fit, may require a Judge of the High Court Division to sit in
the Appellate Division for any temporary period as an Ad hoc Judge
and such Judge while so sitting, shall exercise the same jurisdiction,
power and functions as a Judge of the Appellate Division;
Provided that nothing in this article shall prevent a person appointed
as an Additional Judge from being appointed as a Judge under article
95 or as an Additional Judge for a further period under this article.”
However the expression “consultation” is still there in article 116
of the Constitution which provides that the control and discipline of
persons employed in the judicial service and magistrates exercising
judicial functions shall vest in the President and shall be exercised by
him in consultation with the Supreme Court.
The expression ‘consultation’ has been dealt with and
considered in the case of Secretary, Ministry of Finance Vs. Md.
Masdar Hossain reported in 20 BLD(AD)104 wherein it has been held
that, “under article 116 the views and opinion of the Supreme Court on any
matter covered by that article shall get primacy over the views and opinion of
the executive.”
It is true that ‘consultation’ was considered in the light of article
116 of the Constitution but, nevertheless the same principle is being
applied in the matter of appointment of Judges of the Supreme Court
under articles 98 and 95 of the Constitution because without the
independence of the Supreme Court there cannot be any
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independence of the subordinate courts and without consultation and
primacy, the separation of judiciary from the executive will be empty
words. The principle of consultation with primacy of opinion of the
Chief Justice is no longer res-integra and being an integral part of
independence of judiciary the same is inherent in the very scheme of
the Constitution. There has been unbroken and continuous convention
of consultation with the Chief Justice in the matter of appointment of
Judges.
In the case of S.P. Gupta and others Vs. President of India and
others reported in AIR 1982(SC)149, Supreme Court Advocates-on-
Record Association Vs. Union of India reported in AIR 1994 page
269 and Special Reference No.1 of 1998 and Al-Jehad Trust Vs.
Federation of Pakistan reported in PLD 1996 Vol. 1 page 324 it has
been settled that, “consultation with the Chief Justice is a pre-requisite and
the opinion of the Chief Justice shall have primacy.”
From the above, it is clear that consultation with the Chief Justice
in the matter of appointment of Judges with its primacy is an essential
part of the independence of judiciary.
In the case of Bangladesh and others Vs. Md. Idrisur Rahman,
Advocates and others reported in 29 BLD(AD)79 it has been held
that, “in the matter of selection of the Judges the opinion of the Chief Justice
should be dominant in the area of legal acumen and suitability for the
appointment and in the area of antecedents the opinion of the executive should
be dominant.”
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In such view of the matter, I am of the opinion that the Chief
Justice and the executive should function together to find out the most
suitable candidates available for appointment through a transparent
process of the Constitution. The duty of all organs of the state is that
the public trust and confidence in the judiciary may not go in vain. We
have no doubt that every constitutional functionary and authority
involved in the process is as much as we are to find out the true
meaning and importance of the scheme envisaged by the relevant
constitutional obligations avoiding transgression of the limits of the
demarcated power.
Regarding the point as to whether the independence of judiciary
as enshrined in our Constitution is a basic structure of the Constitution
and whether the same can be amended, curtailed or diminished in
view of article 7B of the Constitution, in this respect the Appellate
Division in the Ten Judges case held that, “independence of judiciary
affirmed and declared by the Constitution is a basic structure of the
Constitution and cannot be demolished or diminished in any manner.”
However, with regard to the constitutional provisions of article
48(3) and 55(2) of the Constitution, this Division in the case of
Bangladesh and others Vs. Md. Idrisur Rahman, Advocates and
others reported in 29 BLD(AD)79 has discussed in details.
So far the point as raised in ground No.V of this appeal the
decision of the Ten Judges Case is very clear and unambiguous and as
=137=
such, the same guaranteed no interference by this Division in the
present case.
However, I would like to conclude with the same remark relying
on the findings given by my learned brother Jahangir Hossain, J
regarding consideration of the case of the appellant to appoint him as
Judge under article 95(1) of the Constitution.
It is evident from the record that dropping the name of the
appellant from being appointed as a permanent Judge took place on
09.06.2014. Since we do not find any antecedent against the appellant
and since his other qualifications find support the case of the appellant
namely A.B.M. Altaf Hossain who may be considered to be appointed
under article 95(1) of the Constitution as permanent Judge in the High
Court Division in the light of the above observations.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is hereby
disposed of in the light of the observation as stated above. No order in
respect of Civil Petition for Leave to Appeal No.2680 of 2014 as it has
been abated at the death of the sole petitioner.
J.
Jahangir Hossain, J: I have gone through the judgment of my
learned brother, Obaidul Hassan, J. Though I am in respectful
agreement with some of the points arrived at by him, yet having
=138=
regard to the important constitutional points involved in the case, I
would like to give my own reasons for those points and would also
add some of my opinions on a few other points.
The facts of the case have already been narrated in details in the
main judgement. Hence, I would not repeat on the same facts. In the
instant civil appeal, non-appointment of a Judge of the High Court
Division has been challenged and called in question on the ground
that the appellant has not been appointed under Article 95 of the
constitution of the People’s Republic of Bangladesh [hereinafter
referred to as the Constitution] despite the consultation and
recommendation of the Chief Justice.
The High Court Division summarily rejected the writ petition of
the appellant on the ground of Bangladesh and others-Vs-Idrisur
Rahman, widely known as ten Judges’ case, reported in
29BLD(AD)79 in which the outcome of the event of the
recommendation of Chief Justice conflicting with decision of the
Executive was not stated. This means the opinion or recommendation
of the Chief Justice has primacy in the matter of appointment of such
Judges or not. Apart from this, an additional Judge has a right to a writ
of mandamus to secure his appointment as a permanent Judge of the
High Court Division of the Supreme Court of Bangladesh.
According to Article 148 (1) of the constitution, a person elected
or appointed to any office in ‘Third Schedule’ shall before entering
upon the office make and subscribe an oath or affirmation [in the
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article referred to “an oath”] in accordance with that Schedule. The
third schedule of the Constitution provides that ‘Chief Justice or
Judges. An oath [or affirmation] in the following forms shall be
administered, in the case of Chief Justice by the President, and in the
case of a Judge appointed to a Division by the Chief Justice, which is
shown as follows:
“I, ………………………………, having been appointed
Chief Justice of Bangladesh (or Judge of the
Appellate/High Court Division of the Supreme Court) do
solemnly swear (or affirm) that I will faithfully discharge
the duties of my office according to law; That I will bear
true faith and allegiance to Bangladesh: That I will
preserve, protect and defend the Constitution and the laws
of Bangladesh: And that I will do right to all manner of
people according to law, without fear or favour, affection
or ill-will.”
Generally in Bangladesh any oath ceremony occurs in the form
of our national language so that every citizen of the country could
understand the meaning and spirit of the sacred oath, which is quoted
below:
“6z fËd¡e ¢hQ¡lf¢a h¡ ¢hQ¡lLz-fËd¡e ¢hQ¡lf¢al ®rœ l¡ÖVÊf¢a LaѪL Hhw p¤fË£j
®L¡YÑ~l ®L¡e ¢hi¡Nl ®L¡e ¢hQ¡lLl ®rœ fËd¡e ¢hQ¡lf¢a LaѪL ¢ejÀ¢m¢Ma glj
nfb (h¡ ®O¡oZ¡)-f¡W f¢lQ¡¢ma qChx
B¢j . . .......... , fËd¡e ¢hQ¡lf¢a (h¡ ®rœja p¤fË£j ®L¡VÑl
Bf£m/q¡CL¡VÑ ¢hi¡Nl ¢hQ¡lL) ¢ek¤š² qCu¡ pnËÜ¢Qš nfb(h¡ cªti¡h ®O¡oZ¡)
L¢la¢R ®k, B¢j BCe-Ae¤k¡u£ J ¢hnÄÙ¹a¡l p¢qa Bj¡l fcl LaÑhÉ f¡me L¢lhx
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B¢j h¡wm¡cnl fË¢a AL«¢œj ¢hnÄ¡p J Be¤NaÉ ®f¡oZ L¢lh;
B¢j h¡wm¡cnl pw¢hd¡e J BCel lrZ, pjbÑe J ¢el¡fš¡¢hd¡e L¢lh;
Hhw B¢j i£¢a h¡ Ae¤NËq, Ae¤l¡N h¡ ¢hl¡Nl hnha£Ñ e¡ qCu¡ pLml fË¢a BCe-
Ae¤k¡u£ kb¡¢h¢qa BQlZ L¢lhz”
............
Similar to the oath of Hon’ble President, Hon’ble Prime Minister
and other Ministers, need to preserve, protect and defend the
Constitution. In addition, Judges also need to preserve, protect and
defend the Constitution and the laws of Bangladesh by their oath. So,
it is very important to bear in mind that the Judges have to do justice
but in accordance with law, nothing less, nothing more. Political
regimes might change, the Judges might change but the judgment
given by a Judge would remain constant.
However, it is needed to be reiterated that in the Article 48(3)
and 52(2) of the Constitution has been elaborately discussed in the
main judgement of the case wherefrom it reminds to me that in the
case of Raghib Rauf Chowdhury-Vs-Bangladesh, 69 DLR 317 in
which it was held that:
“46. The eligibility of the Judges has been mentioned in the
Article 95(2). In spite of that the petitioner by filing this writ
petition wanted to give a guideline how the persons who are in
the helm of affairs should act and what should be a criterion for
the persons to be recruited in the higher judiciary. Since the
opinion of the Chief Justice has been made mandatory for the
=141=
executive, presumably it can be said that the Chief Justice being
the head of the judiciary, one of organs of the State will recruit
the proper persons in the higher judiciary having proper legal
background, i.e. sufficient knowledge of law, man of dignity
and integrity. The petitioner’s submission is that for the sake of
independence of judiciary the recruitment process of the Judges
of the higher judiciary must be free from all political influences.
It is his apprehension that since vide Article 48(3) of the
Constitution there is a provision to take advice from the Prime
Minister, the President is bound to listen his/her advice, thus
there might be political influence in the process of recruitment of
the Judges in the higher judiciary. In this regard Mr. Justice
Abdul Matin in the case of Bangladesh-Vs-Md. Idrisur
Rahman Advocate reported in 29BLD(AD)79 has said that
“therefore the expression” independence of judiciary” is also no
longer res-integra rather has been authoritatively interpreted by
this Court when it held that it is a basic pillar of the Constitution
and cannot be demolished or curtailed or diminished in any
manner accept[sic] and under the provision of the Constitution.
We find no existing provision of the Constitution either in
Articles 98 and 95 of the Constitution or any other
provision which prohibits consultation with the Chief
Justice and primacy is in no way in conflict with Article
48(3) of the Constitution. The Prime Minister in view of
Article 48(3) and 55(2) cannot advise contrary to the basic
feature of the Constitution so as to destroy or demolish
the independence of judiciary. Therefore, the advice of the
Prime Minister is subject to the other provision of the
Constitution that is Article 95, 98, 116 of the
Constitution.”
[underline of mine is given for emphasis]
=142=
The aforesaid view of the case has been approved by the
Appellate Division in Civil Petition No.2805 of 2017 by order dated
06.12.2020 dismissing the leave petition. Since it is approved by the
Apex Court, no question of primacy or supremacy of the two organs of
the State makes any confrontation with regard to the appointment of
Judges of both the Divisions of the Supreme Court of Bangladesh.
Since both the organs are highly correlated there is no scope for any
conflict. If there is any difference of opinion, it can be mutually solved
quite easily without raising any issue in public. Here it is needed to be
said that unless the law is enacted by the Parliament for appointment
of Judges in the higher judiciary, the process of initiating the
appointment of a Judge under Articles 95 and 98 of the Constitution
should be done by direct effectuation. In the history of judiciary of
Bangladesh from 1972 till date this conflict was raised numerously. No
solution has yet been found.
From the experience, it is often heard that the Chief Justice gave
recommendations for the position of the Judges but subsequently he
withdrew those recommendations without any reasons to be recorded.
It is also evident that there were instances when the Chief Justice gave
recommendations for the appointment of Judges which was duly
hounored by the appropriate Appointing Authority, however,
subsequently no oath had taken place by the same Chief Justice. There
is no logical reason for such occurrences to happen. However, selection
by the Chief Justice which means recommendation and final decision
=143=
by the appropriate Appointing Authority needs to occur directly if
there is any adverse antecedent to any candidate. Such matters can be
resolved prior to giving any appointment by the appropriate
authorities concerned.
During hearing of this appeal, we have perused a file placed by
the learned Attorney General in a chamber exclusively wherefrom we
did not find any adverse antecedent of the appellant. Rather we found
that the appropriate Appointing Authority did not give him
appointment as permanent Judge together with five other Judges. As
per Article 48(3) of the Constitution, there is no scope to raise any
question whether any, and if so, what advice has been tendered by the
Hon’ble Prime Minister to the Hon’ble President to be enquired into in
any court. Here the empowerment of the court is not enforceable to
direct the authority concerned to execute any order of this court.
Rather the compassion of the appropriate authority may give rise to
the appointment of the appellant. According to the aforementioned
discussions and in the light of observations made in the case of
Bangladesh and others-Vs-Md. Idrisur Rahman, Advocate and
others reported in 29BLD(AD)79, the writ of mandamus sought by
the appellant can be sustained.
During hearing, the submission of the respondent as to the
appellant’s eligibility under Article 95(2)(a) of our Constitution has
been brought into question. It is doubtful whether the respondents
have any legal scope to question the eligibility of the appellant under
=144=
Article 95(2)(a) of the Constitution. Inasmuch as there is nothing about
this in the respondent’s concise statement, however, Order XIX, Rule 3
of the Appellate Division Rules provides that:
“3. No party to an appeal shall be entitled to be heard by the
court unless he has previously lodged his concise statements.”
From the above Rule, it follows by implication that the grounds
not taken/pleaded in the concise statement cannot be agitated in the
hearing of the appeal. The concise statement on behalf of respondent
No.01 clearly shows that no such ground was taken therein. However,
since it is raised by the respondent’s submission, let us discuss about
the qualification/eligibility for appointment of a Judge in the High
Court Division of the Supreme Court throughout the Subcontinent.
Article 193(2) of the Islamic Republic of Pakistan Constitution
stipulates that:
“193. (1) A Judge of a High Court shall be appointed by the
President after consultation-
(a) .........................
(b) ..........................
(c) ..........................
(2) A person shall not be appointed a Judge of a High
Court unless he is a citizen of Pakistan, is not less
than [forty-five years] of age, and
(a) he has for a period of, or for periods
aggregating, not less than ten years been an
advocate of a High Court (including a High
Court which existed in Pakistan at any time
=145=
before the commencing day); or
(b) he is, and has for a period of not less than
ten years been, a member of a civil service
prescribed by law for the purposes of this
paragraph, and has, for a period of not less
than three years, served as or exercised the
functions of a District Judge in Pakistan; or
(c) he has, for a period of not less than ten
years, held a judicial office in Pakistan.
[Explanation.-In computing the period during which a
person has been an advocate of a High Court or held
judicial office, there shall be included any period during
which he has held judicial office after he became an
advocate or, as the case may be, the period during which
he has been an advocate after having held judicial office.]
(3) ...................................................”
Pakistan is an Islamic country as per their Constitution. Article
193(2) of the Pakistan Constitution discusses that a person should not
be appointed as a Judge of the High Court unless he is a citizen of
Pakistan, is not less than 45 years of age and he must be an Advocate
for a period aggregating not less than 10 years. This means the total
period of his practice would be counted or he has for a period of not
less than 10 years held a judicial office in Pakistan.
In the Indian Constitution, Article 217(2) the following is
extracted below:
“217. (1) .........................
=146=
Provided that -
(a) .........................
(b) ..........................
(c) ..........................
(2) A person shall not be qualified for appointment as
a Judge of a High Court unless he is a citizen of
India and -
(a) has for at least ten years held a judicial
office in the territory of India; or
(b) has for at least ten years been an advocate
of a High Court[* * *] or of two or more such
Courts in succession;
(c) [* * *]
Explanation.-For the purposes of this clause-
(a)
(aa)
(b)
(3) ...................................................”
From the said Article, it is disclosed that the qualification for
appointment as a Judge of the High Court should be a citizen of India
and at least held a judicial office for a period of 10 years in the territory
of India. Or the candidate must have been an Advocate of a High
Court for 10 years or of two or more such courts in succession. Hence
there is no question of aggregation in the Constitution of India.
Article 95(2)(a) of our Constitution provides that “95(2)(a) a
person should not be qualified for appointment as a judge unless he is a
=147=
citizen of Bangladesh and- (a) has, for not less than 10 years been an
Advocate of the Supreme Court.”
It is cardinal principle of interpretation that the words of a
statute must not be overruled by the Judges, but reform of the law
must be left in the hand of the Parliament. Application of this principle
can be used in the interpretation of Constitution since Constitution is
the highest law of the country and the words used in the constitution
can never be changed or altered.
Definition in section 3(2a) of the General Clauses Act, 1897 has to
be applied for the reason that Article 152(2) of the Constitution
provides-
“(2) The General Clauses Act, 1897 shall apply in
relation to-
(a) this Constitution as it applies in relation to an
Act of Parliament;”
Section 3(2a) of the General Clauses Act, 1897 contemplates-
“(2a) “Advocate” means a person enrolled as such
under the Bangladesh Legal Practitioners and Bar
Council Order, 1972 (P.O. No.46 of 1972)”
Definition of “Advocate”-
Article 2(a) of The Bangladesh Legal Practitioners and Bar
Council Order, 1972 [P.O. No.46 of 1972] defines-
“2.(a) “advocate” means an advocate entered in the roll
under the provisions of this Order;”
“Roll” of the Advocate is defined-
“2.(h) “roll” means the roll of advocates prepared and
maintained by the Bar Council;”
=148=
To construe the word “Advocate” employed in Article 95(2)(a) of
the Constitution.
The words in Article 95(2)(a) of the Constitution are-
“been an Advocate”.
The word “practicing” has not been mentioned anywhere in this
Article. According to accepted principles and rules of interpretation, it
cannot be presumed that the word “Advocate” as used in the
Constitution meant “Practicing Advocate.” To read the word
“practicing” before the word “Advocate” in Article 95(2)(a) would
mean adding something to the Constitution that is not already there
and would amount to replacing the wisdom of the Constitution’s
framers, who were elected leaders of our War of Liberation in our
nation with our own wisdom. This is completely unacceptable.
This argument finds support from the case of Mahesh Chandra
Gupta-Vs-Union of India, (2009) 8 SCC 273, the Indian Supreme
Court shown as follows-
“38. Whether “actual practise” as against “right to practice” is
the “practice” is the prerequisite constitutional requirement
of the eligibility criteria under Article 217(2)(b) is the question
which we are required to answer in this case.
50. Before concluding on this point, we may state that the
word “standing” connotes the years in which a person is
entitled to practise and not the actual years put in by a
person in practice. [See Halsbury’s Laws of England, 4th
Edn. Reissue, Vol.3(1), Paras 351 and 394 of the Chapter
under the heading “Barristers”]. Under Section 220(3)(a) of
the Government of India Act, 1935, qualifications were
=149=
prescribed for appointment as a Judge of a High Court. A
barrister of at least ten years’ standing was qualified to be
appointed as a Judge of the High Court. As stated above,
the word “standing” connotes the years in which a person is
entitled to practise, not the actual years put in by that
person in practise.
52. The said expression was placed in the Constitution at a
time when the practice of advocates was governed by the
Indian Bar Councils Act, 1926. Section 2(4)(a) of that Act
defined an “advocate” to mean “an advocate entered in the
roll of advocates of a High Court under the provisions of this
Act. Section 8 provided that:
“8. Enrolment of advocate.-(1). No person shall be
entitled as of right to practise in any High Court,
unless his name is entered in the roll of the
advocates of the High Court maintained under this
Act.”
66. Thus, it becomes clear from the legal history of the 1879
Act, the 1926 Act and the 1961 Act that they all deal with a
person’s right to practise or entitlement to practise. The
1961 Act only seeks to create a common Bar consisting of
one class of members, namely, advocates. Therefore, in our
view, the said expression “an advocate of a High Court” as
understood, both, pre and post 1961, referred to person(s)
right to practise. Therefore, actual practise cannot be read
into the qualification provision, namely, Article 217(2)(b).
The legal implication of the 1961 Act is that any person
whose name is enrolled on the State Bar Council would be
regarded as “an advocate of the High Court”. The substance
of Article 217(2)(b) is that it prescribes an eligibility criteria
=150=
based on “right to practise” and not actual practice.”
Relying on Mahesh Chandra Gupta-Vs-Union of India, (2009) 8
SCC 273, the Delhi High Court in DK Sharma-Vs-Union of India,
shown as follows-
“9. The Supreme Court elaborately dealt with the aforesaid
contention and has held that “entitlement to practice” is
sufficient to meet the requirements of Article 217(2)(b). The
Supreme Court has made specific reference to the difference
in language of clauses 1 and 2 to Article 217. It has been held
that Article 217(1) has a clause relating to “suitability” or
“merits”, whereas Article 217(2) has a clause relating to
“eligibility requirements or qualification” and does not deal
with “suitability” or “merits”. The provisions of the
Advocates Act, 1952, etc, entitle a person to practise in any
High Court and for purpose mere enrolment is sufficient.”
The respondent’s reliance in this regard on Al-Jehad Trust-Vs-
Federation of Pakistan, PLD 1996 SC 324 is untenable. As Article
193(2)(a) of Pakistan’s Constitution, 1973 in employing the word
“aggregating” by implication connotes the actual length of practice
which is not in our Constitution and Indian Constitution.
The appellant’s permission to practice in the Supreme Court was
not suspended or kept in abeyance during that time, which is
sometimes done under the provisions of Articles 3, 2(g) of The
Bangladesh Legal Practitioners and Bar Council Order, so to subtract
the time spent to be a Barrister from the period from permission to
=151=
practice in the High Court Division on 18.06.2000 to appointment as an
Additional Judge on 13.06.2012 is utterly misguided.
Unexpectedly, the respondent claimed that it was unclear
whether the Chief Justice had issued any recommendation. This
submission is to be rejected outright because there is no such
contention in the concise statement, it appears from the leave granting
order that the learned Attorney General[late] did not make any
submission questioning the recommendation, and there was a specific
averment regarding the recommendation in paragraphs 8, 9 and 10 of
the writ petition [pp.36-40], and it has already been submitted for the
appellant that the same person recommending the appellant presided
over the Court while granting leave.
Furthermore, the learned Additional Attorney General argued
emphatically and frequently that the judges engaged in the matter of
the 10 Judges’ Case received widespread press coverage for the Chief
Justice's recommendations, despite the fact that they were not named
as permanent judges. According to the writ petitioner's Annexure-F
series (pp. 81–85), it is clear that the Hon’ble Chief Justice offered
recommendations about the appellant and five other Additional
Judges in this matter as well. Last but not least, the Chief Justice who
recommended the appellant sat over the Bench granted leave in this
instance. Therefore, it is clear that a suggestion was made. If such were
the case, leave could not be given.
=152=
The outcome of the current appeal will have a significant impact
on the rule of law and the independence of the judiciary, which are the
two fundamental structural pillars of our Constitution and our
constitutional system, respectively. In light of this, the appellant
respectfully argued that this appeal merits being allowed to achieve
the greater goal of ensuring rule of law and independence of judiciary.
In the case of Bangladesh and others-Vs-Idrisur Rahman, 29
BLD (AD) 79 widely known as ten Judges’ Case, where it was held
that:-
“The process by which Judges are appointed is therefore key to
both the reality and the perception of independence. The whole
scheme is to shut the doors of interference against executive
under lock and key and therefore prudence demands that such
key should not be left in possession of the executive.”
The appellant obtained first class in the examination of Masters’
of Law from the University of Rajshahi and was admitted to the bar on
December 6, 1998, was given permission to practice law in the High
Court Division on June 18, 2000, and was admitted to the Supreme
Court of Bangladesh’s Appellate Division on May 18, 2011. It is also
clear from the record that on April 20, 2009, the appellant was
appointed as Bangladesh’s Assistant Attorney General during the
current government regime. On 3 November 2010, he was promoted
to the position of Deputy Attorney General for Bangladesh as a result
of his improved performance as an Assistant Attorney General. He
was raised to the High Court Division as an Additional Judge together
=153=
with 5 others by a notification dated 13.06.2012, and he took the oath
of office on 14.06.2012, while holding the position of Deputy Attorney
General. During the Regime of present Government, no question of
any eligibility or on the period of practice was raised. According to the
documents submitted before the Court that the appellant believes in
the spirit of the war of liberation.
The above disclosure finds exact support from the case of
Raghib Rauf Chowdhury-Vs-Bangladesh, reported in 69 DLR,317
where it was held in Paras: 54 and 54(a) that:-
“In view of the deliberation made herein above and to respond to
the public aspiration the existing selection process could be made
more effective, improved, transparent and realistic by taking the
following matters into account as ‘eligibility criteria’, if
considered appropriate and rational by the Honourable Chief
Justice before he moves on to recommend a person or the pool of
persons for appointment as Judge or Judges of the High Court
Division, having regards to the provisions envisaged in Article
95(2) of our Constitution:
(a) a person, a citizen of Bangladesh having
sincere allegiance to the fundamental
principles of the State Policy, i.e., nationalism,
socialism, democracy and secularism as
mentioned in Article 8 of the Constitution and
also the spirit of the war of liberation through
which the nation achieved its independence in
1971. A person should not be recommended
for appointment if his antecedent does not
appear balanced with the above principles and
=154=
the spirit;”
It is evident that non-appointment of the appellant as permanent
Judge took place on 09.06.2014. In the meantime, long time he passed
with the agony of question of eligibility as a Judge. And his other
qualifications find support from the case of Raghib Rauf Chowdhury-
Vs-Bangladesh. Under such circumstances, the appropriate
appointing Authority may reconsider the case of the appellant,
A.B.M.Altaf Hossain to be appointed as permanent Judge in the High
Court Division in the light of above observations.
With the above observations, the Civil Appeal No.232 of 2014 is
hereby disposed of.
Civil Petition for Leave to Appeal No.602 of 2017 is hereby
disposed of on the ground that the petitioner has become under the
age of 67 set out in our Constitution.
No order in respect of Civil Petition for Leave to Appeal No.2680
of 2014 as it has been abated at the death of the sole petitioner.
J.
COURT’S ORDER
We, therefore, sum up as under:
(a) The Chief Justice of Bangladesh in exercise of his
functions as consultee shall take aid from the other
senior Judges of the Supreme Court at least with two
senior most Judges of the Supreme Court before
giving his opinion or recommendation in the form of
consultation to the President.
=155=
(b) In the light of the observations made in S.P. Gupta,
Ten Judges’ cases, and the article mentioned in
paragraph-17, it is evident that in case of
appointment of a Judge of the Supreme Court under
Articles 95 and 98 of the Constitution the opinion of
the Chief Justice regarding legal acumen and
professional suitability of a person is to be
considered while the opinion of the Prime Minister
regarding the antecedents of a person is also to be
considered. If divergent opinions from either side of
the two functionaries of the state occur the President
is not empowered to appoint that person as Judge.
The opinion of any functionary will not get primacy
over the others.
(c). If any bad antecedent or disqualification is found
against any Additional Judge, who is under
consideration of the Chief Justice to be recommended
for appointment under the provision of Article 95 of
the Constitution, it is obligatory for the executive to
bring the matter to the notice of the Chief Justice
prior to the consultation process starts.
(d). After recommendation is made by the Chief Justice
to the President, even if, at that stage it is revealed
that antecedent of any recommended candidate is
not conducive to appoint him as a Judge under
Article 95 of the Constitution, it shall be obligatory
for the executive to send the file of that Additional
Judge or the person, back to the Chief Justice for his
knowledge, so that the Chief Justice can review his
earlier recommendation regarding the such
candidate.
=156=
(e). If the Chief Justice again (2nd time) recommends the
same Judge/person for appointment under Article
95, whose antecedent has been placed before him for
reconsideration, this Court expects that, the
President of the Republic would show due respect to
the latest opinion of the Chief Justice.
[
[ With the above observations, the Civil Appeal No. 232 of 2014
and Civil Petition for Leave to Appeal No. 602 of 2017 are
disposed of.
The Writ Petition No. 7489 of 2014 filed by the appellant
A.B.M.Altaf Hossain and Writ Petition No. 1948 of 2017 filed by
the petitioner Md. Farid Ahmed Shibli were maintainable (by
majority view).
The concerned authority may consider the case of the appellant
A.B.M. Altaf Hossain.
No order in respect of Civil Petition for Leave to Appeal No.
2680 of 2014 as it has been abated at the death of the sole
petitioner.
J.
J.
J.
J.
J.
J.
J.
The 14thday of June, 2023
RRO; Total words 39,055
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Obaidul Hassan, C.J.
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NOS. 454-455 OF 2017
(From the judgment and order dated 16.08.2016, passed by a Special Bench of the High
Court Division in Review Petition No.19 of 2015)
Government of Bangladesh and others. Appellants.
(In C. A. No.454 of 2017 )
Bangladesh Environmental Lawyers
Association (BELA) and others.
Appellants.
(In C. A. No.455 of 2017 )
-Versus-
The Managing Director, Ashiyan City
Development Limited and others.
Respondents.
(In both the cases)
For the Appellants :
(In C. A. No. 454 of 2017) Mr. Sk. Md. Morshed, Additional Attorney General
with Mr. Mohammad Saiful Alam, Assistant
Attorney General and Mr. Sayem Mohammad
Murad, Assistant Attorney General instructed by
Mr. Haridas Paul, Advocate-on-Record.
For the Appellants :
(In C. A. No. 455 of 2017) Mr. Fida M. Kamal, Senior Advocate with Mr.
Probir Neogi, Senior Advocate and Mr. Minhajul
Hoque Chowdhury, Advocate instructed by Mr.
Zainul Abedin, Advocate-on-Record.
For Respondent No.1 :
(In both the cases) Mr. Ahsanul Karim, Senior Advocate with Mr. M.
Qumrul Hoque Siddique, Senior Advocate and Mr.
Raghib Rouf Chowdhury, Advocate instructed by
Mr. Bivash Chandra Biswas, Advocate-on-Record.
For Respondent No. 11 :
(In C. A. No. 454 of 2017) Mr. B. M. Elias, Advocate instructed by Mr.
Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No. 10 :
(In C. A. No. 454 of 2017) Mr. Md. Imam Hasan, Advocate instructed by Mr.
Md. Shafiqul Islam Chowdhury, Advocate-on-
Record.
Respondent Nos. 2-9 :
(In C. A. No. 454 of 2017)
Not represented.
For Respondent Nos.12-14 :
(In C. A. No. 455 of 2017) Mr. Nurul Amin, Senior Advocate instructed by Mr.
Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No.15 :
(In C. A. No. 455 of 2017) Mr. B. M. Elias, Advocate instructed by
Mr. Mohammad Abdul Hai, Advocate-on-Record.
For Respondent No.7 :
(In C. A. No. 454 of 2017) Mr. Md. Imam Hasan, Advocate instructed by
Mr. Md. Shafiqul Islam Chowdhury,
Advocate-on-Record.
2
Respondent Nos. 2-6 and
8-10 :
(In C. A. No. 455 of 2017)
Mr. Sk. Md. Morshed, Additional Attorney General
with Mr. Mohammad Saiful Alam, Assistant
Attorney General and Mr. Sayem Mohammad
Murad, Assistant Attorney General (appeared with
the leave of the Court)
Respondent No.11 :
(In C. A. No. 455 of 2017) Not represented
Date of hearing: The 31st day of October and
2nd & 7th day of November, 2023
Date of judgment : The 22nd day of November, 2023
JUDGMENT
M. Enayetur Rahim, J: These civil appeals, by leave, are
directed against the judgement and order dated 16.08.2016
passed by a Special Bench of the High Court Division in
Review Petition No.19 of 2015 allowing the Review Petition
and thereby reversing the judgement and order dated 16
January, 2014 passed in Writ Petition No.17182 of 2012
discharging the Rule.
Since both the civil appeals have arisen out of the same
judgment, those are heard together and dealt with by this
single judgment.
The facts relevant for disposal of the appeals are as
follows:
The appellants in Civil appeal No.455 of 2017 and the
Institute of Architects Bangladesh (IAB)-respondent No.11
herein, filed Writ Petition No.17182 of 2012 against the
present respondents and appellants of C.A. No.454 of 2017
challenging the order/clearances/approvals given vide Memo
No. ¯§viK bs- cwi‡ek/Xvwe/11284/XvKv/ jvj/ Qvo-73, dated 24.12.2009; memo No.
pobomo/pribesh-3/2/DoE Appeal-56/2011/133 dated 14.02.2012;
memo No. 30.26.95.4.11284.180906/nabayan dated 21 June 2012
3
and memo No. Prosha-6/raj-04/2011/581/1(2)dated 2 October
2012.
In the writ petition it is contended that Ashiyan City
Development Ltd., the review petitioner-respondent No.1
herein, (herein after referred to as respondent No. 1) is a
land development company, responsible for unplanned and
unauthorized creation of townships by filling up farmlands
and low lying marshy and wetlands in and around Dhaka City,
thereby endangering the environment by taking advantage of
the reluctance of law enforcement agencies and other public
authorities. Respondent No. 1 had grabbed land in the Mouzas
of Uttar Khan, Dakkhin Khan, Barua and Bauthar, filled earth
in wetlands and was selling plots in its unauthorized Ashiyan
City project without requisite approval under Rules for
Developing Land in Private Residential Projects, 2004 (herein
after referred to as Rules, 2004) from Rajdhani Unnayan
Kartripakkha (RAJUK). Though RAJUK and the Director General
of the Department of Environment initially moved against such
unauthorized land filling and selling plots, but subsequently
authorized the said project by the impugned memos dated
21.06.2012 and 02.10.2012 for reasons best known to them.
Earlier, by the impugned memo dated 24.12.2009, the
Director General of the Department of Environment granted a
conditional site clearance for one year in favour of the
respondent No. 1 for 55.6 acres of land although there was no
RAJUK approved plan for the project or a "No-objection"
certificate from Deputy Commissioner of Dhaka with regard to
ownership of the project land, both of which were
preconditions for such site clearance. An inquiry by the
Director General of the Department of Environment revealed
4
that the review petitioner was planning to fill up 6000
bighas of land.
The writ petitioners also contended that such holding of
land by respondent No. 1 violated the ceiling of land holding
under the Bangladesh Land Holding Limitation Order, 1972. The
Director (Enforcement and Monitoring) of the Department of
Environment, fined respondent No.1 an amount of Tk.
50,00,000.00 (Taka fifty lac only) by memo dated 16.11.2011
for violating the provisions of Environment Conservations
Act, 1995 and this fine was reduced on appeal by the
respondent No.1 to the Ministry of Environments and Forest to
Tk. 5,00,000.00 (Taka five lakh only) by an order dated
14.02.2012.
Upon preliminary hearing of the writ petition, a Division
Bench of the High Court Division by its order dated
02.01.2013 issued Rule Nisi in the terms prayed. The
respondent No.1 contested the Rule by filing affidavit in
opposition and two supplementary affidavits denying and
controverting all material allegations as contained in the
writ petition.
The essential case of the respondent No.1 as averred in
its affidavit in opposition and supplementary affidavits is
that the lands on which it had undertaken its project did not
contain any wetlands within the meaning of Act No. 36 of
2000. The entire land fell within the area earmarked for
development of residential/residential-cum-commercial zone in
the Master Plan and Detailed Area Plan, as published by the
Government/RAJUK vide memos dated 04.08.1997, 12.03.2006 and
22.06.2010.
The respondent No.1 was accorded registration as sponsor
of private housing project under Rule 3 of the Rules, 2004 by
5
RAJUK, by memo dated 2006 and such registration was renewed
up to 30.06.2017 by memo dated 09.07.2012.
On 14.11.2010, the respondent No.1 applied for approval
of Ashiyan City Project, Phase 1 measuring 43.11 acres. This
was forwarded by RAJUK by memo dated 24.07.2011 to the
Ministry of Housing and Public Works with recommendation for
necessary action under the Rules, 2004 by a memo dated
02.10.2012, incorporating the minutes of a meeting on
25.09.2012 presided over by the Minister, the respondent No.1
was informed of approval of its projects along with housing
projects of other companies. Final approval was granted by
RAJUK, memo dated 04.10.2012. On the issue of land holding,
the respondent No.1 stated that Schedule 3 of the Rules, 2004
grants approval for developing various slabs of land in
excess of 100 bighas for developing private housing projects.
By a letter dated 21.06.2010, the respondent No.1 applied to
the Ministry of Land for approval of the project. By memo
dated 17.07.2011, Ministry directed the Deputy Commissioner
for a report, the Deputy Commissioner by memo dated
19.01.2012 recommend approval. By memo dated 06.02.2012, the
Ministry of Land gave clearance to the project. The
Department of Environment granted site clearance by memo
dated 24.12.2009, which was extended by memo dated 21.06.2012
up to 23.12.2012. By memo dated 30.12.2012, the Department
granted approval of the Environment Impact Assessment of the
review petitioner.
The respondent No.1 also annexed further documents to
bring on record the approval of other authorities, including
utilities such as Dhaka Electric Supply Company, Dhaka Water
Supply and Sewerage Authority, Bangladesh Telegraph and
Telephone Board and Titas Gas as well as the Fire Service and
6
Civil Defence, Dhaka Transport Coordination Board, Dhaka
Metropolitan Police and Water Development Board. The
respondent No.1 also brought on record documents to show
allotment of land to various utilities and the police
authorities. The Dhaka City Corporation also confirmed that
since the area of the project fell outside its territory, its
approval was not required.
The Rule was finally heard by a Special Bench of the High
Court Division, and the Rule was made absolute by a majority
judgement delivered on 16.01.2014. The premise on which the
Rule was made absolute was that the respondent No.1 had been
given approval with respect to 43.11 acres or 130.64 bighas
of land for its project which exceeded the maximum limit of
land property which can be held by a person/ entity under
Section 3 of the Bangladesh Land Holding (Limitation) Order
1972, being 100 bighas, and the maximum limit of area on
which a housing project can be made under Rule 8(1) of the
Private Residential Project Land Development Rules, 2004
being 33 acres of land.
However, after conclusion of the hearing of the above
writ petition, but before the delivery of the judgement, the
respondent No.1 applied to the Deputy Commissioner, Dhaka by
an application submitted on 07.01.2014 seeking permission for
development of its project on 1197.00 acres of land,
including 43.11 acres of land in the first phase, as it
exceeded the 33 acres limit. Such approval was sought under
Section 20 read with 90(3) of the State Acquisition and
Tenancy Act, 1950, Rule 8(1) of the Rules, 2004 and Section
4(d) of the Bangladesh Land Holding (Limitation) Order, 1972
(P.O.98 of 1972). Upon receipt of the application, the Deputy
Commissioner, Dhaka, by memo dated 16.01.2014, accorded such
7
permission with respect to 1197 acres of land. Other
developers, being East West Property (Pvt.) Ltd., Swadesh
Properties Ltd. (for two projects) and Neptune Land
Development Ltd. have, against applications dated 19.01.2014,
17.02.2014, 30.03.2014 and 26.04.2014, obtained approvals for
projects having more than 33 acres of land from the Deputy
Commissioner, Dhaka by memos dated 26.02.2014, 27.04.2014,
09.06.2014 and 26.04.2014. The respondent No.1 also submits
that the writ petitioners did not file any public interest
litigation against any other developers similarly placed as
this respondent No.1.
Since the approval dated 16.01.2014 being given to the
respondent No.1 on the same date as the judgement and order
passed in the above writ petition, the respondent No.1 could
not reasonably bring it to the notice of the High Court
Division. Further, until the respondent No.1 obtained the
certified copy of the judgement and order dated 16.01.2014,
the respondent No.1 could not consult with its lawyers and
take advice as to whether the said approval dated 16.01.2014
could give reason to file a review petition.
The appellants in Civil Appeal No. 455 of 2017 and the
Institute of Architects Bangladesh (IAB) as respondents
entered appearance in the review petition by filing affidavit
in opposition.
The learned Advocate appearing on behalf of the
Secretary, Ministry of Land made oral submissions at the time
of hearing of the Rule and the learned Deputy Attorneys
General appeared for the Secretary, Ministry of Environment
and Forest, the Secretary, Ministry of Information, and the
Director General, Department of Environment, respondent Nos.
8
11, 13 and 15 respectively and made oral submission at the
hearing of the Rule.
The case of review respondent Nos.l to 8 (writ
petitioners), in short is that a review petition can only be
filed on discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
the knowledge or could not be produced by the petitioner; the
statements made in paragraph 9 of the petition clearly show
that there was neither any such discovery nor has any new
matter or evidence been collected after the judgement was
pronounced on 16.01.2014. Instead the undated application of
Ashiyan Land Development Ltd. was received by the office of
Deputy Commissioner on 07.01.2014 when the Writ Petition was
pending and injunction in force, and land holding being a
major contentious issue of the writ petition, the same could
and should have been brought to the notice of the High Court
Division by the respondent No.1 either through filing of an
application or at least orally mentioned before that Court
when the matter was taken up for pronouncement of judgement
on 16.01.2014. While the undated application of Ashiyan Land
Development Ltd. mentions a new quantum of land, i.e. 1197
acres that varies substantially from the earlier
contradictory claims of the review petitioner about ownership
of land, the same substantiates the assertion of the writ
petitioners about grabbing of lands by Ashiyan Land
Development Ltd. The quantum of land mentioned in the
application being much above the legal ceiling of land
holdings and contrary to the land quantum mentioned during
the course of hearing, the said application is nothing but a
deliberate, clever and mala fide attempt to legalize land
9
grabbing by Ashiyan Land Development Ltd. and frustrate and
undermine the judgement.
It is further contended by the review respondents that in
the said application the respondent No.1 deliberately did not
disclose the pendency of the litigation and the Deputy
Commissioner, as a co-respondent, did not apply his mind in
according the so-called permission behind the back, as such
administrative sanction in a sub judice matter while an
injunction in force against the project cannot be given
except for the evil purpose of affecting the substratum of
the litigation. The so-called permission accorded by the
Deputy Commissioner on 16.01.2014 with respect to 1197 acres
of land is bad in the eye of law as none of the three laws
relied on in the application allow any such authorisation by
the Deputy Commissioner, nor does the permission refer to any
other legal premise on the basis of which such permission has
been accorded.
In view of the existing legal context and the judgement of
the Appellate Division, the so-called permission of Deputy
Commissioner having no legal sanction should be rejected as a
ground for the Review Petition. The petitioner of the Review
Petition and the Deputy Commissioner, Dhaka both being
respondents in the Writ Petition and having contested the
Rule should have mentioned the fact of filing of the
application in the sub-judice matter where an order of
injunction was still in force at the relevant time. The fact
that both the parties deliberately omitted to mention this
aspect of the case and have come forward with the Review
Petition with a permission claimed to have been given just on
the day of the judgement strongly suggests unholy cohesion
10
between the two respondents-parties in the writ petition. The
so-called permission, being a product of dubious and
collusive actions, should be rejected outright and dealt with
sternly as the same is sought to be used so as to over-reach
the judgement and order dated 16.01.2014 and/or to frustrate
the effect of the said judgement and order.
It was also stated that the permissions in favour of other
developers as mentioned in paragraph 11 of the Review
Petition were all accorded subsequent to the permission
letter issued in favour of Ashiyan Land Development Ltd.
A Special Bench of the High Court Division after hearing
the review application by its judgment and order allowed the
same and set aside the judgment and order dated 16.01.2014
passed in Writ Petition No. 17182 of 2012.
Being aggrieved and dissatisfied with the said judgment
and order the appellants (C.A. No. 455 of 2017) filed Civil
Petition for Leave to Appeal No. 2789 of 2017. The Government
also filed Civil Petition for Leave to Appeal No. 2669 of
2017 and accordingly leave was granted on 07.08.2017. Hence,
the present appeals.
Mr. Sk. Md. Morshed, learned Additional Attorney
General with Mr. Mohammad Saiful Alam, and Mr. Sayem Mohammad
Murad, Assistant Attorney General(s) have appeared on behalf
of the appellants in Civil Appeal No.454 of 2017, and Mr.
Fida M. Kamal, learned Senior Advocate with Mr. Probir Neogi,
learned Senior Advocate and Mr. Minhajul Hoque Chowdhury,
learned Advocate have appeared for the appellants in Civil
Appeal No.455 of 2017.
11
The main contentions of the learned Advocates for the
appellants in both the appeals are as follows:
i) the High Court Division in granting review and by
setting aside the earlier judgement and order dated 16
January, 2014, has committed serious error of law by
failing to appreciate that the grounds taken in the
Review Petition did not attract section 114 and Order
XLVII rule 1 of the Code of Civil Procedure; the
materials produced were duly considered and recorded
during the hearing of the writ petition, and hence could
not be revisited by way of re-hearing; there was no
error on the face of the record; if the conclusions
reached by the judgement dated 16 January, 2014 were
considered erroneous, then the same should have been
challenged by filing an appeal (as a follow up of C.M.P
09 of 2014) and not by way of review;
ii) the review was erroneously granted by the High Court
Division although there was no discovery of new and
important matters of evidence, which after the exercise
of due diligence, was not within the knowledge or could
not be produced by the review petitioner, inasmuch as
the so-called permission of the office of the Deputy
Commissioner dated 16.01.2014 was given on an
application of the review petitioner made prior to the
pronouncement of the judgment in the writ petition but
deliberately not disclosed before the Court;
iii) the High Court Division failed to appreciate that
without filing appeal against the judgment, review
petition was filed with the mischievous intention to
take undue advantage of the split judgment and that
12
granting of review on legally untenable grounds is
clearly erroneous. The High Court Division failed to
appreciate that the review petition was mala fide
inasmuch as the same has been filed relying on the so-
called “No-objection" letter of the Deputy Commissioner
which clearly is a result of dubious and collusive
action between him and the Review Petitioner and was
obtained just on the day of the judgement simply to
over-reach the judgement and order dated 16 January,
2014 and/or to frustrate the effect of the said
judgement and order;
iv) the High Court Division, by allowing condonation of
delay, has fallen into error as the same is contrary to
the provisions of the Limitation Act, 1908;
v) in setting aside of the impugned Memos Annexures ‘C’,
‘H’, ‘K’ and ‘M’ by the judgement dated 16.01.2014 on
findings of cogent grounds in the facts and
circumstances of the case, appear to have been negated
in review by the impugned judgement dated 16.08.2016
without any discussion and/or reference to the said
Memos;
vi) the High Court Division failed to appreciate that
the project of respondent No. 10 was being implemented
in violation of the mandatory legal provisions of the
Town Improvement Act, 1953 (E.B. Act No. XIII of 1953);
the Bangladesh Environment Conservation Act, 1995 (Act
No. 1 of 1995) and the Environment Conservation Rules,
1997 made thereunder; “gnvbMix, wefvMxq kni I †Rjv kn‡ii †cŠi GjvKvmn †`‡ki
mKj †cŠi GjvKvi †Ljvi gvV, Db¥y³ ¯’vb, D`¨vb Ges cªvK…wZK Rivavi msiÿY AvBb, 2000 (Act
No. XXXVI of 2000); †emiKvwi AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004; The
13
State Acquisition and Tenancy Act, 1950, the Bangladesh
Land Holding Limitation Order, 1972, and the judgment of
the Supreme Court as reported in 65 DLR (AD)181;
vii) the impugned judgment shall legalize the irregular
and unlawful approvals/ permissions given by respondents
No.6 and 7, encourage indiscriminate and unauthorized
filling up of wetlands, defend landlordism and land
grabbing, jeopardize the land rights of the genuine land
owners and make a real mockery of laws relating
environment, town planning and land administration.
Per contra, Mr. Ahsanul Karim, learned Senior Advocate
with Mr. M. Qumrul Hoque Siddique, learned Senior Advocate
appearing for respondent No. 1 in both the appeals made
submissions in support of the impugned judgement and order of
the High Court Division. The main contentions are as follows:
i) the review is maintainable because the approval of
Deputy Commissioner was not on the record which was the
only decisive issue context and determining factor by
the majority judges for making the Rule absolute and
which the respondent No. 1 could not produce at the time
when the judgment was pronounced, although the said
approval was in fact in existence as on the day when the
judgment was pronounced;
ii) a review is competent when an important
document/matter could not be produced at the time when
the judgment has been pronounced or there is some other
sufficient reason for review; when the judgment was
pronounced the approval was available but the respondent
No. 1 could not produce it despite exercising due
diligence. This is what is termed as a sufficient reason
14
to invoke review jurisdiction within the ambit of Order
XLVII of Code of Civil Procedure;
iii) since the main determining factor striking out of
the impugned Memos were on the rationale that Deputy
Commissioner approval was not on the record, on which
basis the Rule was made absolute which had the
respondent would be able to obtain the approval of
Deputy Commissioner when the judgment was pronounced,
the results would have been different; the respondent
No.1 had the access of the approval of Deputy
Commissioner, as on the date of judgment but was
precluded from producing it for sufficient reason, the
absence of such material document the Rule was made
absolute and the said single document was the decisive
document determining the fate of the respondent No. 1
and, therefore, the said document was the only decisive
factor to maintain the review petition;
iv) the High Court Division upon discovery of new
document allowed the Review and this is precisely what a
Court of law would consider under Order XLVII of Code of
Civil Procedure. In the original judgment, there was no
contrary finding which required to be adverted to. A
review by no means a rehearing of appeal. The finding of
the Court upon discovery of new document is sufficient to
allow the review. The Review judgment required no further
elaboration;
v) the Metro Maker case reported in 65 DLR AD 181 is
distinguishable in the present case; paragraph 146 of the
said judgment enumerates what is "cÖvK…wZK Rjvavi' and the ratio
decidendi in the said case disqualifying a residential
15
area; in Metro Maker case, the relevant documents were
not available but in the given case those documents are
available; in Metro Maker case, the land in question was
within flood zone and semi flood zone; however in the
instant case the entire land in question does not contain
any wet land not to speak of flood zone;
vi) the project lands have been mostly classified as
‘Vita’, ‘boro’, ‘chala’, ‘bari’ and ‘Chala’& ‘nal’ as
printed in City Jarip Khatiyan in between 1997-2004 under
section 144 of SAT Act 1950 and accordingly, there was no
cannel or river or jalashay/Jaladhar in the project land
as per City Jarip Mouza map printed by the competent
authority in between 1997-2004;
vii) a Civil Miscellaneous Petition is not the
continuation of leave petition nor a proceeding of Appeal
under the Constitution and thus mere filing of CMP does
not take away the right of Review;
viii) There was no such injunction restraining the Deputy
Commissioner in granting ‘No-objection’ in respect of the
project and further the order of approval by Deputy
Commissioner is too remote to cover the order of
injunction passed by the High Court Division;
ix) the Government cannot resile from its own order,
sanction or approval. [Ref: 1 BLD (AD) 91; 10 MLR (AD)
23].
x) a Public Interest Litigation is mean to spouse a
cause to benefit the public at large; it cannot be
calculated to vindicate the interest of any particular
sector of any society; it creates a serious doubt and
suspicion in rightful thinking members of society and to
16
the esteem of the rightful thinking members of society
at large; the petitioners are pursuing against certain
cause of a particular developer leaving other developers
irrespective of public and private including Basundhara
Housing (East West Properties Limited), Purbachal
Housing Project, Jalshiri Housing Project, BCS Admin
Housing Society, Police Officers Housing Society,
Judicial Officers Housing Project, Civil Aviation
Residential Zone, Neptune Properties Ltd., Swadesh
Residential Project, Jamuna Builders, Lake City Concord
Banorupa Residential Project, Nasa Group, Pink City,
Sector 4 & 6 of Rajuk Uttara Model Town Project, Haji
Camp; it is really mischievous and suspicious why the
petitioners are after one particular petty developer
which creates serious doubt the action and persuasion of
the petitioner at the behest of other big developers
only to preclude the respondent No. 1 so as to give
better benefit to those big developers so that they can
exercise exclusive monopoly in the respective market and
thus, the writ petitioners are nothing but busy body
exercising unholy game in the name of so called public
Interest Litigation.
We have considered the rival submissions of the learned
Advocates for the parties concerned, perused the impugned
judgments and order of the High Court Division and other
connected papers as placed before us.
In the instant case, the Special Bench of the High Court
Division in deciding the merit of the Rule in writ petition
No.17182 of 2012 making the Rule absolute (by majority view)
observed that the project area is 43.11 acres or 130.64
bighas but the writ respondent No. 10 (present respondent
17
No.1) had got no permission of the Deputy Commissioner as
required for the excess land for the project in question
beyond the limit of 33 acres as provided in Rule 8 (K) of the
‡emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004|
wewa 8 (K) of the ‡emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004 runs as
follows:
""(8) wewa Gi ---
(K) Dc-wewa (1) Gi cwie‡Z© wb¤œiƒc Dc-wewa (1) cÖwZ¯ÍvwcZ nB‡e, h_vt-
""(1) ‡emiKvwi AvevwmK cÖKí MÖn‡bi †ÿ‡œ XvKv DËi wmwU Ki‡cv‡ikb, XvKv `wÿY
wmwU Ki‡cv‡ikb ev †cŠi GjvKvi Af¨šÍ‡i b~¨bZg 5 (cuvP) GKi Ges XvKv DËi wmwU
Ki‡cv‡ikb, XvKv `wÿY wmwU Ki‡cv‡ikb ev †cŠi GjvKvi evwn‡i b~¨bZg 10 (`k) GKi f~wgi
cÖ‡qvRb nB‡e, b~¨bZg AvqZ‡bi cÖK‡íi †ÿ‡Î D‡`¨v³v‡K kZfvM f~wgi gvwjK nB‡Z nB‡i,
m¤úªmvwiZ GjvKvi †ÿ‡Î bZyb GjvKv Ges c~‡e©i (Aby‡gvw`Z) GjvKv mgš^q Kwiqv †j-AvDU
cÖYqb Kwi‡Z nB‡e; State Acquisition and Tenancy Act, 1950
(Act No. XXVIII of 1951)Gi section 20 Ges section 90
Abyhvqx †h †Kvb D‡`¨v³vi cÖK‡íi AvqZb m‡ev©”P 33 (†ZwÎk) GKi nB‡e, Z‡e cÖK‡íi AvqZb
Gi †ekx nB‡j mswkøó †Rjv cÖkvm‡Ki `߇ii AbygwZ MÖnb Kwi‡Z nB‡e| Ó (Underlines
supplied)
The Special Bench of the High Court Division mainly on
the ground of excess land of the project in question, i.e.
total area of project in question is 43.11 acres or 130.64
bighas than the land ceiling of 33 acres, made the Rule
absolute. From the said judgment, it also appears that the
High Court Division declared Annexures-M, C, H, and K to have
been issued without lawful authority and is of no legal
effect.
Annexure-C is the conditional site clearance in favour
of the respondent for 55.6 acres of land issued by the cwi‡ek
Awa`ßi for 1 (one) year; annexure-H is the decision of the cwi‡ek
Awa`ßi deciding to pay Tk. 5 (five) lakh for causing damage,
and direction to the writ respondent No. 7 to dispose of the
application of the present respondent dated 24.11.2020 for
renewal of site clearance; annexure-K is the extension of
18
site clearance and annexure-M is the approval of the RAJUK
for establishing the Ashiyan City Prokalpo first phase.
Though in the writ petition it was contended by the writ
petitioners that if the project is implemented, the
environment will seriously threatened, and that said project
is going on in violation of the law as mentioned earlier. The
High Court Division without giving any findings whether the
project in question is violative of the Town Improvement Act,
1953,(E.B. Act No. XIII of 1953); the Environment
Conservation Act, 1995(Act No. 1 of 1995); the Environment
Conservation Rules 1997; gnvbMix, wefvMxq kn‡ii I †cŠi GjvKvmn †`‡ki mKj †cŠi
GjvKvi †Ljvi gvV, Db¥y³ ¯’vb, D`¨vb Ges cÖvK…wZK Rjvavi msiÿY AvBb, 2000(Act No. XXXVI of
2000); †emiKvix AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004; the State Acquisition and
Tenancy Act, 1950 made the Rule absolute (majority view). The
Special Bench of the High Court Division mainly on the ground
of excess land which is violative of the Bangladesh Land
Holding Limitation Order 1972 and Rule 8 (Ka) of the ‡emiKvix
AvevwmK cÖK‡íi f~wg Dbœqb wewagvjv, 2004 made the Rule absolute.
In review, the Special Bench of the High Court Division
taking into consideration of the new circumstances that on
the day of delivery of judgment the respondent No.1 has got
an approval, i.e. ‘No-objection’ from the office of the
Deputy Commissioner, Dhaka, for development of its project on
1197 acres of land including 43.11 acres of land in the first
phase and, thereby, allowed the review application setting
aside its earlier judgment and order making the Rule
absolute.
It is now the moot question before us whether in the
facts and circumstances of the present case the Special Bench
of the High Court Division committed error in reviewing its
earlier judgment on the basis of alleged ‘No-objection’
19
accorded by the office of the Deputy Commissioner Dhaka
issued on 16.01.2014, i.e. on the day of delivery of judgment
in favour of the respondent No.1, which was neither produced
nor intimated to the Court, when judgment was pronounced.
It is now well settled that judgment passed in a writ
petition can be reviewed although the High Court Rules does
not specifically provide such review and in that event, Code
of Civil Procedure is applicable.
In the case of Moni Begum and others vs. Rajdhani
Unnayan Kartripakha and others, reported in (1994) 46 DLR
(AD)154 this Division found the proceedings in writ
jurisdiction to be civil proceedings, but having regard to
the summary nature of the proceedings held that section 141
of the Code would not in terms apply. This Division has
observed that:
“In our view, the High Court Division while exercising the
writ jurisdiction relating to a civil matter is no doubt in seisin of a
civil proceeding,........”
And
“........the Court in its discretion can apply the principles as
distinguished from the technical provision of the Code of Civil
Procedure to meet the exigencies of the situation in appropriate case
on the ground of justice, equity and good conscience. In what
situation the principles of the Code of Civil Procedure will be applied
and to what extent may perhaps be left to the wise discretion of the
Court itself. In other words, barring what is specifically provided for
in the Rules themselves, the Court is the master of its own procedure
and it will exercise both its procedural and substantive discretions
only on the ground of justice, equity and good conscience.”
And
“Section 141 CPC does not in terms apply to proceedings in
writ. But the Court in its discretion can apply the principles as
distinguished from the technical provisions of the CPC to meet the
exigencies of the situation on the ground of justice, equity and good
conscience.”
20
Let us now look into the provision of Order XLVII rule 1
of the Civil Procedure, which is as follows:
“Application for review of judgment.
1.(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed,
or
(c) by a decision on a reference from a Court of small causes,
and who, from a discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within his knowledge or could not
be produced by him at the time when the decree was passed or order made,
or on account of some mistake or error apparent on the face of the record, or
for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him, may apply for a review of judgment to the
Court which passed the decree or made the order.”
From the above provision of law, it is abundantly clear
that Court has got the authority to review its judgment or
order, as the case may be under specified conditions; i.e.
i) on discovery of new and important matter or
evidence, which was not known to or could not be
produced by the review petitioner before;
ii) on account of some mistake or error apparent on
the face of the record; or
iii) any other specified reason.
It is now well settled that unless a prayer for review
is based on the grounds mentioned above, the Court will not
sit on the matter again for re-hearing or further hearing,
which is already concluded by the decision. In this
connection we may rely on the cases of Basharatullah, being
dead his heirs: Fazle Karim and others Vs. Government of
Bangladesh and others, reported in 16 BLD (AD)9=48 DLR
(AD)178, in the case of Rahima Akhter and others Vs. Asim
Kumar Bose and others, reported in 40 DLR (AD) 23, in the
21
case of Pradhip Das alias Shambhu and others Vs. Kazal Das
Sarma and others, reported in 44 DLR (AD)1.
In the case of Suja Ud-doula and others vs. Arshad
Hossain Haider and others, reported in 22 BLC (AD) 49 this
Division has observed that review is not re-hearing of an appeal or to give a
defeating party chance to start second innings and the reasons given by a Court is not
relying upon an exhibit in a case do not definitely come within the phraseology, “or on
account of some mistake or error apparent on the face of the record.”
In the case of Nurul Hussain vs. Government of the
People’s Republic of Bangladesh, reported in 49 DLR (AD) 108
this Division has observed that a review was never meant and allowed to be
utilized an another opportunity for re-hearing the matter which is already closed by a final
judgment.
In the case of GM, Postal Insurance and another vs. ABM
Abu Taher, reported in 61 DLR (AD) 97 this Division also held
that a party is not entitled to seek a review of a judgment delivered by the Court merely
for the purpose for re-hearing in a fresh decision of the case, and departure from that
principle is justified only when circumstances of the substantial and compelling character
made it necessary to do so.
In the case of Syed Md. Ismail Vs. Dhaka University and
another, reported in 1 MLR (AD) 425, this Division has
observed that review of judgment can only be made on discovery of important
evidence, which could not be produced before he Court in spite of due diligence and had the
same been produced, the decision of the Court would have been otherwise. In the case
of Islamic Foundation Bangladesh vs. Firoz Alam and others,
reported in 53 DLR (AD) 48 this Division held that in these
circumstances the High Court Division does not appear to have committed any error of law
by not giving a chance to the petitioner to try its luck once again on the plea of discovery of
additional evidence. In the above case, this Division relied on the
22
case of Kessewji Issur vs GIP Ry. Company, 34 IA 115 (PC)
where the Privy Council observed that:
“Now the civil Procedure Code permits such applications for review
on the ground of such discovery, but it exacts very strict conditions so as to
prevent litigants lying on their oars when they ought to be looking for
evidence-it enjoins the Judge to require the facts as to the absence of
negligence to be strictly proved, and it makes the Judge who tried the case
final on such application.”
In the above case, this Division further held that-
“In the instant case, the petitioner alleges that certain letters have
passed between the Foreign Office and the High Commission for Bangladesh
in Karachi after the disposal of the appeal, which disclose that Md. Ismail is
still alive in Karachi. If this be a fact the petitioner could have discovered the
same through correspondences much before the suit came up for hearing in
the trial Court. The non-discovery of the alleged fact that Md. Ismail is still
alive must, therefore, be due to the negligence of the petitioner”.
In the Case of Abu Said Md. Idris Ali Sikder vs
Monoranjan Bagchi, reported in 22 DLR, 214 it has been held
that right of review can be exercised only in case of excusable failure on the part of the
applicant to bring to the notice of the Court new and important matters of error.
Absence of negligence on the part of the applicant is to be strictly proved. [22 DLR,
216 Gulnahar vs. Ramjan Ali]. In the case of Arun Bhowmick vs. Slim Rezd,
reported in 1988 BLD 180 the High Court Division held that the Court
must come to a clear finding that there was discovery of new and important matter which
after exercise of due diligence was not within the knowledge of the petitioner.
Let us now consider the case in hand in view of above
settled propositions of law.
The learned Advocates for the respondents extraneously
argued that the alleged ‘No-objection’ given to the
respondent on the day of delivery of judgment, i.e. on 16
23
January 2004, was not placed or communicated at the time of
pronunciation of the judgment and the Special Bench of the
High Court Division having considered the said fact allowed
the review petition and, thereby, committed no error of law
which can be interfered by this Division and the judgment
passed by the High Court Division is within the very ambit of
Order XLVII rule 1.
A pertinent question is required to be addressed here,
whether the alleged ‘No-objection’ obtained by the respondent
No.1 on the date of delivery of judgment (16.01.2014) which
was neither presented before the Court nor intimated the same
to the Court will come within the meaning of ‘discovery of
new fact or important matter’.
The dictionary (Black’s law, 8th edition; Cambridge and
Oxford Dictionary) meaning of ‘discovery’ is ‘the act of
finding something that had not been known before or something
that one did not know about before.’
Discovery of new and important matter or evidence which
could affect the decision is a ground for review only if it
is shown that even after the exercise of due diligence, it
was not within the knowledge of, or could not be produced by,
the party at the time of passing of the judgment and order.
The alleged ‘No-objection’ in favour of the respondent
Ashiyan City cannot be said as discovery of new fact or
evidence which after due exercise of diligence was not in the
knowledge of the writ petitioner or could not produce by him
when the judgment was delivered; rather considering the
attending facts and circumstances of the present case, in
particular the fact of getting alleged ‘No-objection’ was not
produced/communicated or intimated to the Court during
pronunciation of judgment of the writ petition, and that the
24
review application was filed after a long lapse of time
beyond the limit of prescribed time in law, thus, it is our
considered view that this document (No-objection) is not a
discovery of new fact or evidence rather it is a new document
which the review petitioner-respondent had been able to
manage the same cleverly, despite of the order of injunction
of the High Court Division.
It is pertinent to mention here that hearing of the
Rule was concluded on 03.10.2013, and judgment was awaiting
for pronouncement and eventually, judgment was delivered on
16.01.2014, i.e. after 2 months 16 days and between this
period nothing was intimated to the Court even filing of
application on 07.01.2014 to the Deputy Commissioner for
permission of the project in question.
From the above facts and circumstances, we may
reasonably infer that the alleged ‘No-objection’ is a result
of dubious and collusive action between the office of Deputy
Commissioner, Dhaka and the review petitioner-respondent No.1
and, thus, we are unable to accept the submissions of the
learned Advocates for the review petitioner-respondent No.1
that the review petition was maintainable within the ambit of
Order XLVII rule 1. In view of the above, we have no
hesitation to hold that the Special Bench of the High Court
had committed serious error in entertaining the review
petition and allowing the same.
However, it transpires that from the record that the
Deputy Commission earlier gave ‘No-objection’ in respect of
55.6 acres of land in favour of the review petitioner-
respondent No.1 for its project but it was entitled to retain
only 33 acres of land as per Bangladesh Land Holding
(Limitation) Order 1972 (P.O. 98 of 1972) and ‡emiKvwi AvevwmK f~wg
25
Dbœqb wewagvjv, 2004 at the relevant time. It is evidenced from the
record that respondent No.1 got approval of other
authorities, including utilities such as Dhaka Electric
Supply Company, Dhaka Water Supply and Sewerage Authority,
Bangladesh Telegraph and Telephone Board and Titas Gas as
well as the Fire Service and Civil Defence, Dhaka Transport
Coordination Board, Dhaka Metropolitan Police and Water
Development Board.
Thus, we are of the view that review petitioner-
respondent No.1 is entitled to proceed his project in respect
of 33 acres of land pursuant to the permission dated
25.09.2012 and annexures ‘C’, ‘K’ and ‘M’ will be applicable
only in respect of the said quantum of land and permission of
respective organizations.
With the above observations, the appeals are disposed
of. The judgment passed by the High Court Division in Review
Petition No. 19 of 2015 is set aside.
However, there is no bar to carry of the project on 33
acres of land by the respondent No.1 Ashiyan City.
No order as to costs.
C. J.
J.
J.
J.
J.
B.S./B.R./*Words-7,045*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAPPPPEELLLLAATTEE DDIIVVIISSIIOONN
PPRREESSEENNTT::
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL PETITION FOR LEAVE TO APPEAL NO.2876 OF 2023
(From the order dated the 30th day of May, 2023 passed by a Division Bench of
the High Court Division in Writ Petition No.10574 of 2022)
Sulaiman Rubel and others : . . . Petitioners
-Versus-
Dr. Kazi Sirajul Islam and others : . . . Respondents
For the Petitioners
: Mr. Sk. Md. Morshed, Senior Advocate
with Mr. Mushtaq Ahmed Chowdhury,
Advocate and Mr. Shah Mohammad
Ezaz Rahman, Advocate instructed by
Mr. Md. Abdul Hye Bhuiyan,
Advocate-on-Record
For Respondent No.1 : Mr. Murad Reza, Senior Advocate
instructed by Ms. Madhu Maloti
Chawdhury Barua, Advocate-on-Record
For Respondent Nos.2-6 : Not represented
Date of Hearing and Judgment : The 27th day of November, 2023
JUDGMENT
M. Enayetur Rahim, J: This civil petition for leave to appeal
is directed against the judgment and order dated
30.05.2023 passed by a Division Bench of the High Court
Division in Writ Petition No.10574 of 2022 making the Rule
absolute. 2
The relevant facts leading to the filing of the
instant civil petition for leave to appeal are as follows:
The present respondent No.3, Islami Bank Bangladesh
Limited instituted Artha Rin Case No.388 of 2019 in the
Court of Artha Rin Adalat, Court No.4, Dhaka against the
present petitioners (mortgagor-defendants) as well as
respondent No.1 (borrower-defendant) for realization of
Tk.4,65,18,699/- (Taka four crore sixty five lacs eighteen
thousand six hundred and ninety nine) as on 14.07.2019.
In the plaint it is categorically stated that the
plaintiff Bank on several occasions gave reminder and
warnings to the defendants for payment of their
outstanding liabilities through official letter and
requested them to take initiative to regularize all their
overdue. However, the defendants were reluctant to adjust
their outstanding dues.
In order to realize outstanding dues the plaintiff
Bank on 06.07.2018 had published auction notice under
section 12(3) of Artha Rin Adalat Ain, 2003 (hereinafter
referred to as ‘the Ain,2003’) in to Daily newspapers,
namely Dainik Bangladesh Protidin and Dainik Ittefaq for
selling the mortgaged property.
However, the Bank did not get any responsible bidder
to sell the property and, that the mortgagors, filed Writ
Petition No.9186 of 2008 challenging the said auction
notice wherein they got an order of stay. Under such
circumstances the plaintiff Bank has compelled to file the
suit. 3
When the suit is at the stage of peremptory hearing,
the Chairman of the borrower Company (defendant no.3)
filed an application before the Artha Rin Adalat to sell
the mortgaged property before proceeding further with the
suit, but the same was rejected by the learned Judge of
Artha Rin Adalat by an order dated 03.08.2012.
Challenging the said order, the borrower defendant
No.3 that is the present respondent No.1 filed Writ
Petition No.10574 of 2022 before the High Court Division
and accordingly a Rule was issued.
A Division Bench of the High Court Division after
hearing the said Rule, made the same absolute making the
following observations and direction:
“They are required to bear in their minds the
principles, which have been laid down
hereinbefore by this Court, and now articulated
in the following manner:
(1) The Banks/Financial Institutions must not
file any Artharin Suit without, at first,
selling or having failed to sell the liened
and/or pledged and/or hypothecated and/or
mortgaged property of both movale and
immovable nature.
(2) Before filing the Artha Rin Suit, the
Banks/Financial Institutions are competent
to put the mortgaged/hypothecated property
more than once, if the 1st auction does not
wield or succeed in providing/getting the 4
expected price or fails for some other
reason.
(3) In a scenario where the Banks/Financial
Institutions despite invoking Section 12(3)
of the Artha Rin Ain, could not attract any
bidder because of filing any case by the
mortgagor or hypothecated goods owner, the
Adalat shall allow the Banks/Financial
Institutions to invoke Section 12(3) of the
Artha Rin Ain afresh treating it as
continuation of the proceeding under Section
12(3) of the Artha Rin Ain commenced
earlier.
(4) The Banks/Financial Institutions shall not
be allowed to put the mortgaged/
hypothecated property on auction after
filing of the Artha Rin Suit if the Court
finds that provision of Section 12(3) of the
Artha Rin Adalat was invoked by the
Banks/Financial Institutions before filing
of the Artha Rin Suit without being
interrupted by the mortgagor.
(5) The Banks/Financial Institutions are
competent to sell the liened and pledged
properties, even after filing the Artha Rin
Suit if they consciously or inadvertently
have not sold the said liened/pledged
properties. 5
Accordingly, the following Orders and Directions
passed:
(1) The Bank (respondent No.2) is directed to
take necessary steps for arranging the
auction to sell the aforesaid mortgaged
property in question in accordance with the
relevant laws within 30(thirty) days from
the date of receipt of this Order.
(2) The Artha Rin Adalat No.1, Dhaka (before
whom the Artha Rin Suit No.388/19,
renumbered as Artha Rin Suit No.367/22, in
now pending) is directed to facilitate the
auction process. Meanwhile (i.e. till
completion of the auction process), the
trial of the Artha Rin Suit No.388/19
(renumbered as Artha Rin Suit No.367/22)
shall be halted and once the auction process
in completed, the trial of the Artha Rin
Suit No.388/19, renumbered as Artha Rin Suit
No.367/22, shall be proceeded with in
accordance with the law, if the Bank’s dues
are not fully adjusted by the sale price or
if the auction price is not accepted by the
Adalat.
(3) The Registrar General of the Supreme Court
of Bangladesh is directed to disseminate a
copy of this Judgment to all the learned
Judges of the country who are vested with 6
the power of conducting the Artha Rin
Suits/Cases.
(4) All the learned Judges of all the Artha Rin
Adalats of Bangladesh are directed to
acquaint with the ratio laid down in this
Judgment, particularly the principles
recorded in the penultimate paragraph of
this Judgment within 1(one) month of receipt
of this Judgment and, thereafter, report to
the learned District Judges of their
concerned Districts.
(5) All the learned District Judge of the
country are directed to ensure that the
learned Judges of the Artha Rin Adalat/s of
his/her District complies with this Court’s
Directions and, also, they shall notify the
Registrar General of the Supreme Court of
Bangladesh by e-Mail that this Court’s
Directions have been complied with.”
Being aggrieved by the said order the mortgagors-
defendants have preferred this civil petition for leave to
appeal.
Mr. Sk. Md. Morshed, learned Senior Advocate
appearing for the petitioners submits that the High Court
Division has failed to take into consideration that there
is no scope to sell the mortgaged property on the
application of the writ petitioner i.e. the borrower under
section 12(3) of the Artha Rin Adalat Ain, 2003, rather 7
the Bank has got the exclusive jurisdiction to take any
step(s) under section 12(3) of the Ain, Therefore, the
writ petitioner has no locus standi to file such
application.
Mr. Murshed further submits that the High Court
Division has failed to take into consideration that when
an Artha Rin Suit is already filed without selling the
mortgaged property following the provision of section
12(3), then the provision of sub-section 3 of the said
section must be followed by the court suo-moto or on the
application of the judgment debtor and there is no scope
to sell the property afterwards and the provision of
section -12 (6) and section 12(7) of the Artha Rin Ain are
mandatory provision of law, not an alternative provision
of section 12(3) of the Ain.
Mr. Murshed lastly submits that the principal
borrower cannot escape his liability by shifting the
burden on the third party mortgagors and asking for sale
of the mortgaged property inasmuch as whether the third
party has committed fraud or not, can be decided only upon
trail and as such the principal borrower cannot ask for
selling the mortgaged property bringing allegation of
fraud against the third party mortgaged.
Per contra, Mr. Murad Reza, learned Senior Advocate
appearing for the borrower writ petitioner-respondent
having supported the impugned judgment and order has
submitted that the High Court Division on proper
appreciation of the facts and law passed the impugned 8
order directing to facilitate the auction process and
trial of the Artha Rin Suit shall be halted and the suit
shall be proceeded with in accordance with law, if the
Bank’s due are not fully adjusted by the sale price or if
the auction price is not accepted by the Adalat.
We have considered the rival submissions of the
learned Advocates for the respective parties, perused the
impugned judgment and order, the materials as placed
before us and the relevant provisions of law.
To decide the issue involved in this case, it is
necessary to look into the provision of section 12 of the
Artha Rin Adalat, 2003 (hereinafter referred to as Ain,
2003) which as follows;
"12| (1) Dc-aviv (2) Gi weavb mv‡c‡ÿ, †Kvb Avw_©K cÖwZôvb, Dnvi wbR `Lj
ev wbqš¿‡Y _vKv weev`xi †Kvb m¤úwË hvnv cY ev eÜK (Lien or
pledge) ivwLqv FY cÖ`vb Kiv nBqv‡Q, Ges hvnv weµq Kwievi AvBbMZ
AwaKvi ev`xi iwnqv‡Q ev`x‡K Ac©Y Kiv nBqv‡Q, Dnv weµq bv Kwiqv Ges
weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_© FY Av`vj‡Z †Kvb gvgjv
`v‡qi Kwi‡e bv|
(2) Dc-aviv (1) Gi weavb m‡Ë¡I, †Kvb Avw_©K cÖwZôvb wbR `Lj ev wbqš¿‡Y
_vKv cY ev eÜKx m¤úwË weµq bv Kwiqv gvgjv `v‡qi Kwi‡j AbwZwej‡¤^ D³
m¤úwË c~e©-ewY©Z g‡Z weµq Kwiqv weµqjä A_© F‡Yi mwnZ mgš^q Kwi‡e Ges
welqwU Av`vj‡K wjwLZfv‡e AewnZ Kwi‡e|
(3) †Kvb Avw_©K cÖwZôvb, weev`xi wbKU nB‡Z †Kvb ¯’vei m¤úwË
(Immovable Property) eÜK (Mortgage) ivwLqv A_ev A¯’vei
m¤úwË (Movable Property) `vqe× ivwLqv (Hypothecated)
FY cÖ`vb Kwi‡j Ges eÜK cÖv`b ev `vqe× ivLvi mgq eÜKx ev `vqe× m¤úwË
weµ‡qi ÿgZv Avw_©K cÖwZôvb‡K cÖ`vb Kiv nBqv _vwK‡j, Dnv weµq bv Kwiqv Ges 9
weµqjä A_© FY cwi‡kva eve` mgš^q bv Kwiqv, A_ev weµ‡qi †Póv Kwiqv e¨_© bv
nBqv, A_© FY Av`vj‡Z †Kvb gvgjv `v‡qi Kwi‡e bv|
(4) Dcaviv (3) G DwjøwLZ weµ‡qi †ÿ‡Î Avw_©K cÖwZôvb GB AvB‡bi aviv 33
Gi Dc-aviv (1), (2) I (3) Gi weavb, hZ`~i m¤¢e, Abymib Kwi‡e|
(5) †Kvb Avw_©K cÖwZôvb, hw` Dnvi AbyKz‡j Dc-aviv (3) Gi Aaxb eÜwK ev
`vqe× †Kvb ¯’vei ev A¯’vei m¤úwË weµ‡qi Rb¨ GB avivi Aaxb M„nxZ Kvh©µ‡gi
myweav‡_© Abyiƒc ¯’vei ev A¯’vei m¤úwËi `Lj I wbqš¿Y weµ‡qi c~‡e© ev c‡i
weev`x ev FY MÖnxZv nB‡Z wbR `Lj ev wbqš¿‡Y mgwc©Z nIqv A_ev, †ÿÎgZ,
†µZvi AbyKz‡j mgc©Y Kiv cÖ‡qvRb g‡b K‡i, Zvnv nB‡j D³ Avw_©K cÖwZôvb
wjwLZfv‡e Aby‡iva Kwi‡j weev`x ev FY-MÖnxZv Abyiƒc `Lj Awej‡¤^ Avw_©K
cÖwZôvb ev †ÿÎgZ, †µZvi AbyK~‡j mgc©b Kwi‡e|
(5K) Dc-aviv (5) Gi Aax‡b wjwLZfv‡e Aby‡iva Kiv m‡Ë¡I hw` weev`x ev FY
MÖnxZv D³ Dc-avivq DwjøwLZ m¤úwËi `Lj I wbqš¿Y Avw_©K cÖwZôvb ev ‡ÿÎgZ
†µZvi AbyK~‡j mgc©b bv Kwiqv _v‡Kb, Zvnv nB‡j Avw_©K cÖwZôvb mswkøó ¯’vbxq
Awa‡ÿ‡Îi †Rjv g¨vwR‡÷ª‡Ui wbKU `iLv¯Í Kwiqv D³ m¤úwËi `Lj I wbqš¿Y
weev`x ev FY MÖnxZv nB‡Z Dnvi AbyK~‡j ev †ÿÎgZ, †µZvi AbyK~‡j mgc©Y Kwi‡Z
Aby‡iva Kwi‡Z cvwi‡e; Ges Abyiƒcfv‡e Abyiæ× nB‡j †Rjv g¨vwR‡÷ªU wKsev
Zvnvi g‡bvbxZ cÖ_g †kÖbxi †Kvb g¨vwR‡÷ªU, D³ m¤úwË wKsev Zvnvi g‡bvbxZ
cÖ_g †kÖYxi †Kvb g¨vwR‡÷ªU, D³ m¤úwË Avw_©K cÖwZôv‡bi AbyK~‡j cÖ`Ë F‡Yi
wecix‡Z eÜK ev `vqe× _vKvi wel‡q mš‘ó nIqv mv‡c‡ÿ Dnvi `Lj I wbqš¿b
weev`x ev FY-MÖnxZv nB‡Z D×vi Kwiqv Avw_©K cÖwZôvb A_ev, †ÿÎgZ Avw_©K
cÖwZôv‡bi cÿ nB‡Z ‡µZvi AbyK~‡j mgc©Y Kwi‡eb|
(6) †Kvb Avw_©K cÖwZôvb Dc-aviv (2) I (3) Gi weavb cvjb bv Kwi‡j, Av`vjZ ¯^-
D‡`¨v‡M A_ev `vwq‡Ki wjwLZ Av‡e`bµ‡g, wWµx cÖ`vb Kwievi mgq D³ Avw_©K
cÖwZôvb KZ…©K D³ m¤úwËi cÖ`wk©Z g~j¨vq‡bi, hw` _v‡K, mgcwigvb A_© gvgjvi
`vex nB‡Z ev` w`qv wWµx cÖv`b Kwi‡e Ges cÖ`wk©Z g~j¨ bv _vwK‡j, Av`vjZ,
m¤úwËi ¯’vbxq Awa‡ÿ‡Îi mve-‡iwR÷ªv‡ii cÖwZ‡e`b MÖnY Kwiqv, g~j¨ wba©viY 10
Kwi‡e Ges wba©vwiZ D³ g~‡j¨i mgcwigvY A_© gvgjvi `vex nB‡Z ev` w`qv wWµx
cÖ`vb Kwi‡e|
(7) Dc-aviv (6) Gi Aax‡b †h m¤úwËi wba©vwiZ g~j¨ gvgjvi `vex nB‡Z ev` w`qv
wWµx cÖ`vb Kiv Bn‡e, D³ m¤úwËi gvwjKvbv aviv 33 Gi Dc-aviv (7) Gi
weav‡bi Abyiƒc c×wZ‡Z Avw_©K cÖwZôv‡bi AbyK~‡j b¨¯Í nB‡e|
(8) AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœiƒc hvnv wKQzB _vKzK bv †Kb, GB avivi
Aax‡b Avw_©K cÖwZôvb KZ…©K lien, pledge, hypothecation
A_ev mortgage Gi Aaxb cÖvß ÿgZve‡j †Kvb RvgvbZx ¯’vei ev A¯’vei
m¤úwË weµq Kiv nB‡j, D³ weµq †µZvi AbyK~‡j ˆea ¯^Ë m„wó Kwi‡e Ges
†µZvi µq‡K †Kvbfv‡eB ZwK©Z Kiv hvB‡e bvt
Z‡e kZ© _v‡K †h, Avw_©K cÖwZôvb KZ…©K weµq Kvh©µ‡g †Kvbiƒc A‰eaZv ev
c×wZMZ Awbqg _vwK‡j, RvgvbZ cÖ`vbKvix FY-MÖnxZv Avw_©K cÖwZôv‡bi weiæ‡×
ÿwZc~iY `vex Kwi‡Z cvwi‡eb| "
If we meticulously examine the various provisions of
section 12 of the Ain,2003, in particular sub-sections 2,
3, 6 and 7 it will be abundantly clear that the provision
of sub-section 1 of the said section cannot be said as
mandatory provision of law.
Sub-section 1 though stipulates, [subject to the
provision of sub-section 2] a financial institution
without selling any property and adjusting the sale
proceeds thereof in repayment of land money, shall not
institute any suit in the Artha Rin Adalat against any
property of the defendant which has been mortgaged liened
or pledged, upon which the plaintiff has right to sell or
is vested such right and also in possession or control of
said financial institution. 11
But sub-section 2 of section 12 speaks that
notwithstanding the provisions of sub-section (1), where a
financial institution institutes any suit without selling
the liened or pledged property which is in his possession
or control, it shall immediately sell the said property in
the aforesaid manner and adjust the sale proceeds thereof
with the money loan and shall inform the court, in writing
relating thereto and sub-section 6 of section 12 speaks
that if any financial institution does not comply with the
provisions of sub-section (2) and (3), the court shall,
either on its own motion or on a written prayer of the
judgment debtor, award a decree deducting from the claim
of the suit the sum equal to the value, if any, of the
said property shown by the said financial institution at
the time of awarding such decree, and in the absence of
any shown value, the court shall on the basis of a report
from the sub-registrar of the local jurisdiction,
determine the value of such property and shall award a
decree deducting from the claim of the suit the sum equal
to the value so determined.
Sub-section 3 of section 12 stipules that no
financial institution shall, when it advances loan by
taking any immovable property in mortgage or taking any
movable property in hypothecation from the defendant and
at the time of giving mortgage or hypothecation the
financial institution is given the power to sell the
mortgaged or hypothecated property, without selling such
property and adjusting the sale proceeds thereof in 12
repayment of loan or without failing on trying to sell
such property institute any suit in the Artha Rin Adalat.
From the combined reading of the above provisions of
law it cannot be said that unless and until mortgaged
property is not sold in auction as per sub-section 1 of
section 12 of the Ain,2003 the Bank/financial
institution(s) is precluded to file any suit, in other
words selling the mortgaged property before institution of
the Artha Rin Suit is not sino qua non.
Law clearly provides that despite due initiative and
diligence by the Bank/Financial institutes the sale of
mortgaged property is not completed as per provision of
sub-section-1, in that event the Bank/Financial
institutions has got the authority to sell the
mortgaged/liened/hypothecated property and adjust the sale
proceeds with the decreetal amount at the time of passing
the decree.
Sub-section 3 of section 12 of the Ain,2003 provides
that the Bank/financial institution(s) cannot file a suit
without taking steps to sell the mortgaged property and
failing to sell the same. It does not mean that the Bank/
financial institution(s) is to be halted to file the suit.
Thus, the High Court Division committed serious error
in halting the further proceeding of the suit. The
observations of the High Court Division are contrary to
the order of halting the further proceeding of the suit
before selling the mortgaged-property. If, we hold that 13
the provision of sub-section 1 is mandatory one, in that
event provision of sub-section 2, 5, 6 will be nugatory.
Further, another pertinent question has been involved
in this case i.e. whether a defaulter borrower can seek
direction upon the plaintiff regarding the procedure that
will be taken in realization of loan. The answer is simply
‘no’. A borrower defendant cannot dictate the plaintiff as
to his course of action for realization of loan. In the
instant case the defaulter loanee had filed an application
before the Adalat for selling the mortgaged property
before proceed further with the suit. This attempt of the
defaulter loanee, whose property was not mortgaged, not
only surprises us but also we are constraint to hold that
he has taken a device to delay the disposal of the suit as
well as and to pay the outstanding money to the Bank.
In the instant case it is undeniable fact that the
Bank, before filing the suit had taken steps as per
provision of section 12(3) of the Ain,2003 for selling the
property but auction was not done due to the filing of the
writ petition before the High Court Division by the
mortgagors. Thus, there is no room to say that Bank before
filing the suit did not take any steps to sell the
mortgaged property.
Having considered and discussed as above, we are of
the view that the High Court Division committed serious
error in passing the impugned judgment and order by
halting the proceeding of the suit and thus, same is
required to be interfered. 14
However, since we have heard the learned Advocates
for the respective parties at length, thus, we are
inclined to dispose of the civil petition for leave to
appeal without granting any leave to avoid further delay
of disposal of the suit.
Accordingly, the civil petition for leave to appeal
is disposed of. The impugned judgment and order dated
30.05.2023 passed by the High Court Division is hereby set
aside.
The Artha Rin Adalat is directed to proceed with the
case in accordance with the law.
However, the Bank is at liberty to sell the mortgaged
property during pendency of the suit by way of auction or
negotiation with the approval of the Artha Rin Adalat and
the Adalat is at liberty to deal with the matter in
accordance with the law.
However, there is no order as to cost.
J.
J.
J.
J.
B/O.Imam Sarwar/
Total Wards:3,115.
|
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH
APPELLATE DIVISION
PPRREESSEENNTT::
Mr. Justice Obaidul Hassan
-Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO.67 of 2022
WITH
CIVIL PETITION FOR LEAVE TO APPEAL NO.861 of 2022.
(From the order dated 29.07.2019 and 11.11.2021 passed by this Division
and the High Court Division in Civil Petition for Leave to Appeal
No.1613 of 2019 and Civil Revision No.1040 of 2020 respectively).
M/s. Sonar Bangla Service Filling
Station (CNG) Limited , represented by
its Managing Director Rana Chowdhury.
:
....Appellant/
Petitioner.
-Versus-
M/s. Nasir CNG Filling Station , represented
by its Proprietor Nasir Uddin and others.
: ....Respondents.
For the Appellant/Petitioner.
(In both the cases)
: Mr. Kamal-Ul-Alam, Senior Advocate
(with Ms . Shahanaj Akter , Advocate)
instructed by M s. Madhumalati
Chowdhury Barua, Advocate-on-Record.
For Respondent No.1.
(In both the cases)
: Mr. M. Qu mrul Haque Siddique , Senior
Advocate (With Mr. A.B.M. Altaf Hossain,
Senior Advocate) instructed by M s.
Shahanara Begum, Advocate-on-Record.
For Respondent Nos.2-7.
(In C.A. No.67 of 2022)
: Not represented.
For Respondent Nos.2-10.
(In C.P. No. 861 0f 2022)
: Not represented.
Date of Hearing. : The 08th & 15th November, 2023.
Date of Judgment. : The 21st November, 2023.
J U D G M E N T
Borhanuddin,J.: This civil appeal arises out of the leave
granting order dated 26.05.2022 in Civil Review Petition
No.381 of 2019 tagged with Civil Petition for Leave to 2
Appeal No.861 of 2022 for review of the order dated
29.07.2019 passed by this Division in Civil Petition for
Leave to Appeal No. 1613 of 2019 dismissing the same as
barred by limitation.
Facts relevant for disposal of the civil appeal are
that the respondent no. 1 herein as writ -petitioner
preferred Writ Petition No.14870 of 2016 seeking direction
upon the writ -respondents to supply gas connection to his
CNG filling station namely, ‘M/s. Nasir CNG Filling
Station’ in terms of the Memo No. Avwewe-weAvi/cªm/32/450, dated
16.07.2007, contending interalia, that the petitioner is
the proprietor of ‘M/s. Nasir CNG Filling Station’ , which
is proposed to be set up; The petitioner applied to the
writ-respondent no. 4, Titas Gas Transmission and
Distribution Company Limited , for supply of gas at the
proposed CNG station and accordingly, respondent no. 4
accord consent by letter dated 16.07.2007; The petitioner
invested huge amount for the proposed CNG Filling S tation
and obtained necessary permissions from the concerned
authority but the respondent s started dilly dallying in
connecting gas line ; The petitioner knocked the respondents
several times but without any response; To set up the 3
filling station, petitioner borrowed loan from the bank but
due to non-cooperation of the respondents failed to start
CNG filling Station and thus suffering huge loss ; The
petitioner made a representation to the respondent no .4
stating his hardship with a request to take necessary steps
for providing gas connection but n o such step has yet been
taken by the respondents; Hence, the petitioner invoke d the
writ jurisdiction under Article 102 of the Constitution.
Upon hearing the writ-petitioner, a Division Bench of
the High Court Division issu ed a Rule Nisi upon the
respondents and ultimately disposed of the Rule vide
judgment and order dated 08.05.2017 with the following
direction:
“Considering the facts and circumstances of
the case, we are of the view that the
petitioner is also entitled to get the gas
connection for which, under the
circumstances, we direct the concerned
respondents to give gas connection to the
CNG filling station of the petitioner namely
M/s. Nasir CNG Filling Station of Village -
Maijhati, Police Station-Pakundia, District-
Kishoreganj, within a period of sixty days
from the date of receipt of this judgment
and order subject to fulfillment of all the
requirement by the petitioner and
availability of gas in the local area. 4
In the result, the Rule is disposed of with
the above directions.”
Being aggrieved, writ-respondent no. 4 as petitioner
filed Civil Pe tition for Leave to Appeal Nos. 2113 and
2114 of 2017 before this Division and after hearing ,
those were dismissed vide order dated 31.07.2017.
Against the order date d 31.07.2017, respondent no.4
preferred Civil Review Petition Nos. 463-464 of 2017 which
were also dismissed vide order dated 08.01.2018.
After disposal of the civil review petition s while
the Titas Gas Transmission and Distribution Company
Limited in itiated process f or implementation of the
judgment and order passed by the High Cour t Division in
Writ Petition No. 14870 of 2016, the writ-petitioner filed
an application on 26.02.2018 before the High Court
Division for correction of order in portion of the
judgment and or der by changing the place of its CNG
establishment at “Village-Nandula, Post Office -
Chaddashwar, Police Stati on-Kishoreganj Sadar, District -
Kishoreganj” in place of “Village-Maijhati, Police
Station-Pakundia, District-Kishoreganj” and the High Court
Division allowed the same vide order dated 27.02.2018. 5
Having aggrieved by the said order, present appel lant
as third party -petitioner preferred Civil P etition for
Leave to Appeal No. 1613 of 2019 before this Division ,
stating interalia, that the present appellan t has been
running its business under the name and style ‘M/s. Sonar
Bangla Service Filling Station (CNG) Limited’ situated at
Board Bazar, Chaddashwar, Kishoreganj Sadar, District -
Kishoreganj, which is adjacent to the new address of
writ-petitioner and if the writ-petitioner is allowed to
establish its CNG Filling Station in its new address the n
the business of the present appellant would be seriously
affected and the same will also be violative of the
Gazette Notification dated 27.09.2009 by which criteria
has been fixed for establishment of new CNG Station.
After hearing the parties , this Division dismissed
the Civil Petition for Leave to Appeal No.1613 of 20 19
vide order dated 29.07.2019.
Having aggrieved, present appellant as petitioner
filed Civil Review Petition No.3 81 of 2019 invoking
Article 105 of the Constitution and leave was granted on
the following grounds: 6
I. Because of after disposal of civil petitions
and civil review petitions the High Court
Division became ‘functus officio’ and cannot
change the order in portion of the judgment
and order and as such the order dated
27.02.2018 has been passed without lawful
authority and beyond the jurisdiction of the
High Court Division and thus the same is
liable to be set-aside.
II. Because of the present petiti oner has been
running his business in the name and style
of “M/s. Sonar Bangla Service Filling
Station (CNG) Limited” situated at Board
Bazar, Chaddashwar, Kishorganj Sadar,
District-Kishorganj, which is adjacent to
the new address of writ -petitioner and, if,
the writ-petitioner is allowed to establish
its CNG Filling Station in its new address
the business of the present petitioner will
be seriously affected and the same will be
violative to Gazette Notification dated
27.09.2009 by which the criteria has b een
fixed for establishment of new CNG Station
and, since the new address of the writ -
petitioner is situated within 3(three)
kilometers from the present petitioner’s CNG
Station, the same is not sustainable in law,
and, as such the present petitioner ha s
filed this instant petition.
Consequently, instant civil appeal arose.
To address the ground no.1 , it requires to see
whether the High Court Division after passing the
judgment and order became ‘Functus Officio’. 7
The term ‘Functus Officio ’ means that the
jurisdiction of a designated authority comes to an end
once he/she has performed his function s for which he/she
was appointed. This term is equally applicable for all
other offices including the Courts.
It is settled principle that when a court has reached
its final decision in respect of a matter, such court
cannot vary/change its own decision, unless it is
permitted by the specific provision of law.
The Supreme Court of Canada in the case of Canadian
Broadcasting Corp. vs. Manitoba, reported in (2021) SCC
33, held:
“In its contemporary guise, functus officio
indicates that a final decision of a court
that is susceptible of appeal cannot, as a
general rule, be reconsidered by the court
that rendered that decision (see Chandler v.
Alberta Association of Archi tects, 1989
CanLII 41 (SCC), [1989] 2 S.C.R. 848, at
p.860; Reekie v. Messervey, 1990 CanLII 158
(SCC), [1990] 1 S.C.R. 219, at p p.222-23;
Doucet-Boudreau v. Nova Scotia (Minister of
Education), MANU/SCCN/0059/2003: 2003 SCC
62, [2003] 3 S.C.R. 3, at paras .77-79). A
court loses jurisdiction, and is thus said
to be functus officio, once the fo rmal
judgment has been entered (R. v. Adams, 1995
CanLII 56 (SCC ), [1995] 4 S.C.R. 707, at 8
para.29; R. v. Smithen-Davis, 2020 ONCA 759,
68 C.R. (7th) 75, at paras.33-34).”
In the case of Re: V.G.M. Holdings, LTD. ,
reported in 1941 (3) All. ER 417, it was held that:
“It is well-settled that the court can vary
any order before it is passed and entered.
After it has been passed and entered, the
court is functus officio, and can make no
variation itself. Any variation which may be
made must be made by a court of appellate
jurisdiction.”
From the principle enunciated in the referred cases,
our considered view is that after disposal of the Rule
Nisi issued in writ petition vide judgment and order
dated 08.05.2017 and also after disposal of civil
petition as well as civil review petition , the High Court
Division beca me f unctus officio in respect of the
judgment a nd order dated 08.05.2017 passed in the Writ
Petition No.14870 of 2016.
Ground no.2 relates to violation of the criteria
fixed by the Gazette Notification dated 27.09.2009 for
establishment of new CNG station.
Relevant portion of the Gazette Notification is
reproduced below: 9
“2| bZzb wmGbwR †÷k‡bi ¯ ’vc‡bi Aby‡gv`‡bi †ÿ‡Î wb¤œewb©Z welqmg~n
h_vh_fv‡e cÖwZcvjb Ki‡Z n‡e|
(1) kn‡ii evwni I wfZ ‡i GKB mo ‡Ki GKB cv ‡k^© GKwU wmGbwR
wdwjs †÷kb †_‡K Av‡iKwU wmGbwR wdwjs †÷k‡bi byb¨Zg `~iZ¡ h_vµ ‡g
6 wKt wgt I 3 wKt wgt| kn‡ii evwni I wfZ‡i GKB mo‡Ki wecixZ cv‡k^©
GKwU wmGbwR wdwjs †÷kb †_‡K Av‡iKwU wmGbwR wdwjs †÷k‡bi `~iZ¡
h_vµ‡g 4 wKt wgt I 2 wKt wgt n‡Z cv‡i|”
(emphasis supplied)
From the above, it is crystal clear that criteria for
establishment of new CNG Filling Station is that minimum
distance between two CNG Filling Station on the same side
of a road in the city requires to be 6 kilometre and 3
kilometre respectively whereas on the opposite side of
the same road minimum distance requires to be 4 kilometre
and 2 kilometre respectively.
Claim of the appellant is that distance of the new
address of the writ petitioner and the existing CNG
station of the appellant is less than 2(two) kilometer
and thus violative of the Gazette Notification dated
27.09.2009.
To ascertain the distance of two CNG Filling Stations
a local investigation was held in Miscellaneous Appeal
No.26 of 2020 arose out of Other Class Suit No.23 of 2020
filed by the appellant as plaintiff impleading the
respondent no.1 and others as defendants. After holding 10
local investigation, the appointed Advocate Commissioner
submitted his report stating that:
“1| Avwg m‡iRwg‡b wM‡q Avi.Gm. †PŠÏkZ I gZjecyi †gŠRvi bKkvØq cÖvß nBqv
D³ †PŠÏkZ I gZjecyi †gŠRvi Avi.Gm. bKkv fvIivBqv m‡iRwg‡b Rwic cwigvc
Kwiqv †mvbvi evsjv mvwf©m wm.Gb.wR . wdwjs †ókb †Kvb `v ‡M we`¨gvb Zvnv wbY©q
KwiqvwQ Ges †gmvm© bvwQi wm.Gb. wR. wdwjs †ókb †Kvb †gŠRvi †Kvb `v‡Mi AšÍM©Z
ZvnvI wbY©q KwiqvwQ| G‡Z †`Lv hvq †h, †mvbvi evsjv mvwf©m wm.Gb.wR. wdwjs †ókb
†PŠÏkZ †gŠRvi Avi.Gm. bKkvi 2bs mx ‡Ui hvnv Avi. Gm. 2450bs `v‡Mi AšÍM©Z
Ges †gmvm© bvwQi wm.Gb.wR . wdwjs †ókb gZjecyi †gŠRvi Avi.Gm. bKkvi 1bs
mx‡Ui hvnv Avi.Gm. 281 I 284 `v‡Mi AšÍM©Z|
Avwg AvgviK …Z bKkvq †mvbvi evsjv mvwf©m wdwjs †ókb‡K B bs cø ‡Ui gva¨ ‡g Ges
†gmvm© bvwQi wm.Gb.wR . wdwjs †ókb‡K K I L bs cø‡Ui gva¨ ‡g †`LvBqvwQ| B bs
cø‡Ui 9bs ‡ókb †_‡K L bs cø ‡Ui 23bs †ókb ch©šÍ A_©vr †mvbvi evsjv mvwf©m
wm.Gb.wR. wdwjs †ókb nB‡Z †gmvm© bvwQi wm.Gb.wR. wdwjs †ók‡bi `~iZ¡ 8600 wjsK
ev 5676 dzU ev 1730 wgUvi ev 1.73 wK‡jvwgUvi A_©vr †cŠ‡b `yB wK‡jvwgUvi cÖvq|
Dc‡iv³ †gvKÏgvq Avgvi K …Z b Kkvq Avi. Gm. jvBb¸‡jv Kv‡jv Kvwji is Øviv,
†PBb jvBb¸wj meyR Kvwji Øviv, †ókb¸wj bxj Kvwji is Øviv Ges †ebvwjkx cøU¸wj
†e¸wb Kvwji is Øviv Ges †mvbvi evsjv mvwf©©m wm.Gb.wR. wdwjs †ókb‡K njy` Kvwji
is Øviv Ges †gmvm© bvwQi wm.Gb.wR. wdwjs †ókb‡K bxj Kvwji is Øviv wPwýZ Kwiqv
†`Lv‡bv nBj| D ³ †gvKÏgvq Avgvi K …Z cÖwZ ‡e`b I †gvKÏgvi wdìeyK, bKkv
hvnv Avgvi cÖwZ‡e`‡bi Ask ZvnvB AÎ mn `vwLj Kiv nBj|”
(emphasis supplied)
From the report as quoted above, it is apparent that
the CNG Filling Station of the a ppellant namely M/s.
Sonar Bangla Service Filling Station (CNG) Limited is
situated at a distance of 1.73 kilometer from the new
address of the writ petitioner-respondent no.1.
From the discussions made above, it is clear that the
new address of the writ -petitioner for proposed CNG
station is violative of the Gazette Notification dated
27.09.2009. 11
Under the facts and circumstances of the case and for
the reasons stated above , we are inclined to allow the
Civil Appeal No.67 of 2022.
Accordingly, the appeal is allowed.
Order dated 27.02.2018 passed in Writ Petition
No.14870 of 2016 is hereby set-aside.
The Civil Petition for Leave to Appeal No.861 of 2022
is disposed of in the light of the judgment and order
delivered in the Civil Appeal No.67 of 2022.
However, no order as to costs.
CJ.
J.
J.
J.
J.
The 21st November, 2023
Jamal/B.R./Words*2166*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
CIVIL APPEAL NO. 547 OF 2009
(Arising out of Civil Petition No. 1724 of 2008)
The Government of Bangladesh
represented by the secretary,
Ministry of Home Affairs, Bangladesh
Secretariat, Ramana, Dhaka
: .... Appellant
-Versus-
Md. Abdul Mannan and others : ....Respondents
For the Appellants
: Mr. Sk. Md. Morshed, Adl. AG with
Mr. Mohammad Saiful Alam, AAG
instructed by Mr s. Sufia Khatun ,
Advocate-On-Record
For Respondent No. 1 : Mr. Sarwar Ahmed, Senior Advocate
instructed by Mr. Mohammad Ali
Azam, Advocate-on-record
For Respondent Nos.
2-4
Not represented
Date of hearing and
judgment
: 23.08.2023
JUDGMENT
Md. Ashfaqul Islam, J: This civil appeal by leave is directed
against the judgment and order dated 15.04.2007 passed by
the High Court Division in Writ Petition No. 5282 of 2004
discharging the Rule with a direction to pay financial
benefit to the writ-petitioner. 2
Facts, in short, are that the respondent No. 1 herein
as petitioner filed the aforesaid writ petition
challenging the order of removal from his service date d
07.07.2004 contending inter -alia that while he was
working at Teknaf, Cox's Bazar loading Point Nos.1 and 2
with four B.D.R. personnel under the leadership of
Habilder Md. Amirul Islam on 11.07.2003 he was deputed
for loading fish truck and accordingly h e loaded a fish
truck partially under the direct supervision of the
Commander of the Group Habilder Md. Amirul Islam. Finding
disharmony with the loading of the truck containing
Guernsey, Umbrella, torch light etc. the higher authority
called him at B.N. Head Quarter Office, 23 Rifles
Battalion, Taknaf, Cox's Bazar on 16.07.2003 wherein his
statement was recorded as witness. On the same date some
questions were asked by the authority and he replied to
the questions mentioning his innocence. Withou t holding
any inquiry over the matter and without giving any
opportunity of being heard and having violated the
mandatory provisions of Section 6 of the Bangladesh
Rifles (Special Provisions), Ordinance, 1976 the writ
petitioner was terminated from his service on 07.07.2004 3
under Section 8 of the Bangladesh Rifles (Special
Provision) Ordinance, 1976. In the said office order the
Bengali words " ল" has been used but the
penalty under Section 5(b) of the said Ordinance is
removal from service whereas the penalty under Section
5(c) is discharge from service. On perusal of the removal
certificate, it appears that there is no m emo number and
the writ petitioner was remov ed from service by an order
of an individual officer and not by a Court or a Tribunal
established under law relating to such force.
Being aggrieved by and dissatisfied with the said
order of removal dated 07.07.2004, the respondent No. 1
moved before the High Court Division and obtained Rule .
The High Court Division upon hearing the parties
discharged the Rule with a direction to pay all financial
benefit to him. Having dissatisfied with that direction
the Government filed civil petition for leave to appea l
and obtained leave giving rise to this appeal.
Mr. Sk Md. Morshed , the learned Additional Attorney
General, appearing for the appellants, submits that the
High Court Division erred in law in directing the
respective authority of Bangladesh Rifles to provide the 4
respondent No.1 with financial benefits in not
considering that the provision s of Section 8 of the
Bangladesh Rifles (Special Pro vision) Ordinance, 1976
under which the respondent No.1 was awarded major penalty
of discharge from service does not authorize of having
such financial benefits.
He also submits that the High Court Division erred in
law in not considering that the respond ent No.1 being a
member of a disciplinary forces having been found guilty
of dereliction of duty and was discharged from service is
not entitled to any mercy by providing him any financial
benefit which tantamount to reward him for his
wrongdoing.
On the other hand Mr. Sarwar Ahmed , the learned
Senior Advocate for the respondent No. 1 supporting the
impugned Judgment and order passed by the High Court
Division contends that High Court Division rightly and
lawfully allowed the respondent No.1 to have service
benefit as per section 8 of the Bangladesh Rifles
(Special provisions) Ordinance, 1976 . Rather, without
holding any inquiry over the matter and without giving
any opportunity of being heard and in violation of the 5
mandatory provisions of Section 6 of the Bangladesh
Rifles (Special Provisions), Ordinance, 1976 the
respondent No.1 was removed from service on 07.07.2004
under Section 8 of the Bangladesh Rifles (Special
Provision) Ordinance, 1976 which was not legally done and
as such the appeal should be dismissed.
He further submits that in the judgment and order of
the Writ Petition No.5282 of 2004 the High Court Division
noted the submission s of the learned Assistant Attorney
General Mr. Md. Jafor Imam in the language, অপ প
, ল য় অপ অ
ল ও disciplined অ ।
ল প প ল forces ল অ
১৯৭৬ অ য় য় । ও প
ও য় অ ৮ অ ’discharge‘ ল য় ‘ ’
অ য় । ও ,
’discharge‘ ‘ ’ প প stigma য় ।
প ল প প অপ
য় । অ ল প ।”
and on scrutiny of the said submissions it is crystal
clear that the government admitted in their affidavit in
opposition that respondent No.1 was entitled to get 6
service benefit according to the service rules and as
such the government had no reason to be aggrieved to
prefer appeal against the verdict of the High Court
Division and hence, the appeal is liable to be dismissed.
We have heard the lea rned Advocate of both sides. We
have also perused the impugned judgment and order passed
by the High Court Division and other materials on record.
For better understating l et us first see what has
been prescribed in section 8 of the Bangladesh Rifles
(Special provisions) Ordinance, 1976 under which the
respondent No. 1 was terminated from his service. It
states:
“If the authority specified in column 2 of the Second
Schedule is of the opinion that continuance in service of
a member mentioned in column 1 is inexpedient or not in
the interest of the Bangladesh Rifles, he may, without
assigning any reason, either discharge or may make order
for premature retirement with such service benefits to
which such member may be entitled under this Ordinance or
any rules applicable to him.”
For further clarification, the Sections 4, 5 and 6 of
the Ordinance, 1976 are quoted below in verbatim: 7
4. Where a member is guilty of –
(i) misconduct;
(ii) dereliction of duty;
(iii) act of cowardice and moral turpitude;
(iv) corruption; and
(v) inefficiency,
the authority concerned specified in column 2 of the
First Schedule may impose on such member any of the
penalties mentioned in section 5.
5. The following shall be the penalties which may be
imposed upon a member under this Ordinance, namely:-
(a) dismissal from service;
(b) removal from service;
(c) discharge from service;
(d) compulsory retirement; and
(e) reduction to lower rank.
6. (1) When a member is to be proceeded against any
of the offences mentioned in section 4, the authority
concerned specified in column 2 of the First Schedule
shall frame a charge and specify therein the penalty
proposed to be imposed and communicate it t o the
member, hereinafter called the accused, requiring him
to show cause within a specified time which shall not
be less than seven days and not more than ten days
from the date the charge has been communicated to him
why the penalty proposed to be impose d on him shall 8
not be imposed and also state whether he desires to
be heard in person.
(2) If, after consideration of the cause shown
by the accused, if any, and hearing him in person, if
the accused so desires, the authority concerned finds
the accused gu ilty of the charge, he shall, within
twenty days of the receipt of the explanation, impose
upon the accused the proposed penalty or any other
lesser penalty under section 5.”
Notably, in section 4 and 5 of the Ordinance , 1976
the various offenses and the provisions of punishment
have been spelt out chronologically. According to section
6, if Bangladesh Rifle’s any member commits any criminal
offense, then after holding an inquiry and giving him
opportunity for self -defense any penalty prescribed in
Section 5 can be imposed. Against the said penalty appeal
can also be filed before the appropriate authority as per
Section 7 of the Ordinance , 1976. But according to the
provision of Section 8, it appears that if any member of
Bangladesh Rifles is inconvenient to be retained in
service or contrary to the interests of Bangladesh
Rifles, the appropriate authority without assigning any 9
reason can discharge him from his service or send him for
premature retirement with service benefits.
The question has been raised by the learned Advocate
for the respondent No. 1 that since the term " " has
been used in the impugned office order which is
tantamount to removal or removal from service as
punishment under Section 5 of the Ordinance, 1976 but no
procedure has been followed as contemplated under section
6 before inflicting such punishment, the impugned office
order for that reason is illegal and cannot be sustained.
In the case in hand, since the order of termination
has been passed under section 8 of the Ordinance, 1976 it
would be n ot punitive and it must be assumed that the
respondent No. 1 has been discharged from the service of
Bangladesh Rifles though the Bengali term " " has been
used there for the word ‘discharge’ inappropriately. So,
whatever submissions in this regard of the learned
Advocate for the respondent does not hold good being
falacious one. But the respondent No. 1 could be entitled
to get the financial benefits following the above
provisions of law. However, we would like to note that in
future, Bangladesh Rifles authorities will try to use the 10
correct Bengali synonym of ‘discharge’ to resolve this
doubt.
We, therefore, hold that the High Court Division has
rightly discharged the Rule directing to pay financial
benefits to the respondent No. 1 as per section 8 of the
Ordinance, 1976. We do not find any legal infirmity in the
impugned judgment and order passed by the High Court
Division.
Accordingly, this civil appeal is dismissed without any
order as to costs.
C.J.
J.
J.
The 23rd, August,2023
Ismail/B.O.word-*1885*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NOS.901 OF 2018
with C.P.1466 of 2022.
(From the judgment and order dated 16.10.2017 passed by the
High Court Division in Writ Petition No.9876 of 2014.)
Md. Abdur Rashid and others : Petitioners.
(In C.P.901/18)
Syed Sohrawardi and another : Petitioners.
(In C.P.1466/22)
=Versus=
A.B.M. Yousuf Abdullah and others : Respondents.
(In both the cases)
For the Petitioners :
(In C.P. 901/2018)
Mr.A.M. Aminuddin, Senior
Advocate, instructed by Mr.
Md. Helal Amin, Advocate-on-
Record.
For the Petitioners :
(In C.P. 1466/2022)
Mr. Probir Neogi, Senior
Advocate, instructed by
Mrs. Madhumaloti Chowdhury
Barua, Advocate-on-Record.
For the Respondent No.1-5:
(In C.P.901/18)
Mr. Mr. Abdul Wadud Bhuiya,
Senior Advocate with Mr.
Md. Nurul Amin, Senior
Advocate and Mr. M. Qumrul
Hoque Siddique, Advocate,
instructed by Mr. Bivash
Chandra Biswas,
Advocate-on-Record.
Respondent Nos.6-11:
(In C.P.901/18)
Not represented
Respondents :
(In C.P.1466/22)
Not represented
Date of hearing and judgment : 22-01-2023
J U D G M E N T
Hasan Foez Siddique, C. J: The delay in
filing in Civil Petition for Leave to Appeal
No.1466 of 2022 is condoned. 2
These two civil petitions for leave to
appeal have been filed against the common
judgment and order dated 16.10.2017 passed by
the High Court Division in Writ Petition
No.9876 of 2014 making the Rule absolute and
directing the Land Survey Department to make
final publication of the City Survey Khatians
in respect of case khatian.
The respondent Nos.1-5, A.B.M.Yousuf
Abdullah and others filed aforesaid writ
petition challenging the notice issued under
Memo No.31.03.2600.022.16.002.14 dated
28.09.2014 under the signature of the Charge
Officer and Investigating Officer, Dhaka Zonal
Settlement Office (writ respondent No.4)
directing the parties of the Appeal Nos.44896-
44901 of 2001 to appear with the documents on
14.10.2014 before him. The contents of the said
notification dated 28.09.2014 were as under:
ÒMYcªRvZš¿x evsjv‡`k miKvi
‡Rvbvj †m‡Uj‡g›U Awdmv‡ii Kvh©vjq, XvKv
28, knx` ZvRDwÏb Avng` m¥ibx
‡ZRMvuI, XvKv-1208|
d¨v∙ -9125423
[email protected]
m¥viK bs-31.03.2600.022.16.002.14 ZvwiLt 28/09/2014 wLªt
‡bvwUk 3
‡Rvbvj †m‡Uj‡g›U Awdmvi XvKv g‡nv`‡qi 24/08/2014 wLªt Zvwi‡Li
3103.26.00.022.46.001.14-458 bs m¥viKv‡`k †gvZv‡eK ¸jkvb _vbvaxb
15bs fvUviv †gŠRvi 44896/2001 n‡Z 44910/2001bs Avcxj gvgjvi iv‡qi
wei“‡× Rbve †gvt Avãyi iwk` Ms Gi `vwLjK…Z cybt ïbvbxi Av‡e`‡bi wel‡q
Z`š— AvMvgx 14/10/2014 wLªt ZvwiL mKvj 11.00 NwUKvq wbg¥ ¯^v¶iKvixi
Awdm K‡¶ AbywôZ n‡e| mswk ó mKj‡K cª‡qvRbxq KvMRcÎvw`mn h_vmg‡q
Dcw¯nZ _vKvi Rb¨ Aby‡iva Kiv n‡jv|
¯^vt
(†gvt †gvwgbyi ikx`)
PvR© Awdmvi
I
Z`š—Kvix Kg©KZ©v
‡Rvbvj †m‡Uj‡g›U Awdm, XvKv |Ó
Against said notification, the writ
petitioners, filing the aforesaid writ
petition, obtained Rule.
The leave petitioners (respondent No.5) of
Civil Petition for Leave to Appeal No.901 of
2018 and writ respondent Nos.8-10 appeared in
the said writ petition and filed Affidavit-in-
Opposition.
The High Court Division, by the impugned
judgment and order dated 16.10.2017, made the
said Rule absolute.
Then the writ respondent No.5 Md. Abdur
Rashid and 3 others filed Civil Petition for
Leave to Appeal No.901 of 2018 and third party 4
namely, Syed Sohrawardi and another filed Civil
Petition for Leave to Appeal No.1466 of 2022 in
this Division.
Mr. A.M. Aminuddin, learned Senior
Advocate appearing for the petitioners in Civil
Petition for Leave to Appeal No. 901 of 2018,
submits that they purchased the disputed land
by separate registered sale deeds and have been
possessing the same upon mutating their names
and paying rent to the Government regularly. He
submits that C.S., S.A. and R.S. khatians were
duly prepared in the names of their
predecessors and that the writ petitioner-
respondents obtained an order in appeal by
practising fraud. He submits that since there
was specific allegation of fraud in the
applications, the High Court Division erred in
law in making the Rule absolute and declaring
the notification unlawful.
Mr. Probir Neogi, learned Senior Advocate
appearing for the third party leave petitioners
in Civil Petition for Leave to Appeal No.1466
of 2022, submits that leave petitioners of this
petition purchased .38 acre of land from one
Narayan by two sale deeds No.12500 and 12501 5
dated 24.09.2000 from C.S. and S.A. khatian
No.105 and 115 respectively and plots No.2375,
the High Court Division erroneously made the
Rule absolute, consequently, these two
petitioners have been prejudiced seriously. He
submits that after purchasing the aforesaid
land, the leave petitioners of this petition
mutated their names in the khatian from the
office of the Assistant Commissioner of Land,
Tejgaon, Dhaka in Namjari O Jomabhagh Case
No.10302 of 2001 on 22.07.2001 and they also
mutated their names in the khatian in Namjari-
O- Jomabhagh Case No.18819 of 2005 dated
27.12.2005 and paid rent to the Government, the
High Court Division erred in law in making the
Rule absolute in respect of their portion of
their land.
Mr. Abdul Wadud Bhuiya, learned Senior
Advocate appearing with Mr. Md. Nurul Amin,
learned Senior Advocate and Mr. Qumrul Huq
Siddique, learned Advocate for the respondents
in both the petitions in their submissions
supported the judgment and order of the High
Court Division. 6
From the impugned notice dated 28.09.2014
as quoted above, it appears that at the
instance of Zonal Settlement Officer, Dhaka,
Charge Officer and Investigating Officer,
issued the aforesaid letter for further
hearing and communicated the said letter for
holding inquiry on 14.10.2014. The writ
petitioner respondents challenged the same
without appearing before the concerned office.
It further appears from the materials on record
that on the basis of the application dated
21.07.2014 Zonal Settlement Officer issued a
notice for holding inquiry under the provision
of Rule 42A of the State Acquisition and
Tenancy Rules, 1955 to ascertain as to whether
any fraud has been committed in making entry of
draft record-of-rights or not. The contents of
the said notice were as follows.
ÒMYcªRvZš¿x evsjv‡`k miKvi
‡Rvbvj †m‡Uj‡g›U Awdmv‡ii Kvh©vjq, XvKv
28, knx` ZvRDwÏb Avng` m¥ibx
‡ZRMvuI, XvKv-1208|
m¥viK bs-31.03.2600.022.46.001.14-458 ZvwiLt 24/08/2014 wLªt
welqt 1955 m‡bi cªRvZ¯^Z¡ wewagvjvi 42K wewai †Kvb Dcv`vb Av‡Q wKbv Zv hvuPvB
A‡š— cªwZ‡e`b `vwLj|
m~Ît Rbve ‡gvt Avãyi iwk` Gi 21/07/14 wLªt Zvwi‡Li `vwLjK…Z Av‡e`b|
Dchy³ welq I m~‡Î cªvß Rbve †gvt Avãyi iwk`, mvs -12/O/1, k¨vgjx, moK-
02, XvKv Gi XvKv wmwU Rwi‡ci ¸jkvb avbvaxb 15bs fvUviv †gŠRvi 44896/2001 7
n‡Z 44901/2001 bs †gvU 06 wU Avwcj gvgjvi iv‡qi Amg¥wZ‡Z 1955 m‡bi
cªRv¯^Z¡ wewagvjvi 42K wewa g‡Z ïbvbxi g~j Av‡e`bmn Avbymw½K KvMRcÎ G m v‡_
†cªiY Kiv n‡jv|
02| gnvcwiPvjK, f~wg †iKW© I Rwic Awa`ßi g‡nv`‡qi 14/7/2010wLªt
Zvwi‡Li f~t †i./75/2009/2001bs ¯^vi‡K cªRv¯^Z¡ wewagvjv-1955 Gi 42K I L wewai
cª‡qvM m¤ú‡K© †m‡Uj‡g›U Awdmvi/†Rvbvj †m‡Uj‡g›U Awdmvi eivei RvixK…Z
wb‡`©kbvi Av‡jv‡K Av‡e`bKvixi Av‡e`‡bi wel‡q 1955 m‡bi cªRv¯^Z¡ wewagvjv
AbymiYiZ wbg¥ ewb©Z Z_¨mn my¯có gZvgZmn cªwZ‡e`b `vwL‡ji Rb¨ Aby‡iva Kiv
n‡jv|
K) mswk ó †gŠRvi wWwc, AvcwË I Avcxj ïbvbx Pjvi mgqKvj|
L)`vexK…Z Rwgi gvwjKvbv cªvwßi Drm
1| ˆcwÎK
2| µqm~‡Î (g~j `wj‡ji d‡UvKwc) `wj‡ji ‡cªw¶‡Z wgD‡Uk‡bi
Kwc|
3| Ab¨vb¨|
M) nvj m‡bi f~wg Dbœqb Ki cwi‡kv‡ai Kwc|
N) m‡iRwg‡b `Lj cªwZ‡e`b (PZzc©vk¡¯’ `vM D‡j L KiZ †¯‹Pg¨vcmn)|
03| cªwZ‡e`‡bi mv‡_ g~j Av‡e`b I AvbymswMK KvMRcÎ cªZ¨c©Y‡hvM¨|
mshy³t 144 d`©| ¯^vt A¯có
24/8/14
(gynvg¥` Iqvwn`y¾vgvb)
‡Rvbvj †m‡Uj‡g›U Awdmvi (AwZt `vwqZ¡)
XvKv|
‡dvbt (02)9131573
Rbve †gvt †gvwgbyi ikx`
PvR© Awdmvi
‡Rvbvj †m‡Uj‡g›U Awdm, XvKv|Ó
Thereafter, by the impugned notice dated
28.09.2014, it was directed to the parties to
appear before the Zonal Settlement Officer on
14.10.2014. Rule 41, 42A of the State 8
Acquisition and Tenancy Rules, 1955 authorized
the Revenue Officer to hold enquiry to
ascertain as to whether any fraud has been
committed in making entry in record-of-right or
not and such application should be filed before
final publication of the record-of-rights. The
said provision run as follows:
“42A. Correction of fraudulent entry
before final publication of record-of-
rights- The Revenue Officer, with the
additional designation of ‘Settlement
Officer’ shall, on receipt of an
application or on receipt of an official
report for the correction of an entry that
has been procured by fraud in record-of-
rights before final publication thereof,
after consulting relevant records and
making such other enquiries as he deems
necessary, direct excision of the
fraudulent entry and his act in doing so
shall not be open to appeal. At the same
time, the Revenue-Officer shall make the
correct entry after giving the parties
concerned a hearing and recording his
finding in a formal proceeding for the
purpose of future reference.”
Admittedly, record-of-right in the instant
case, has not yet been published finally. Since
petitioner Abdur Rashid brought specific
allegations that the writ petitioners procured 9
the order by practising fraud, the Revenue
Officer with the additional designation of
Settlement Officer can examine as to whether
such order has been procured by practising
fraud or not.
The instant case, it appears that
the
Zonal Settlement Officer simply issued a notice
directing the parties to appear before him with
their respective papers. The writ petitioners,
without appearing before the said Officer,
directly filed the instant writ petition and
obtained Rule which was finally made absolute.
Since the law authorizes the Revenue officer
with additional designation of settlement
officer to hold inquiry to ascertain as to
whether any fraud had been committed in
procuring entry for preparation of the record-
of-rights before final publication or not, we
are of the view, that the said Office acted in
its jurisdiction as conferred under the Rule
42A of the State Acquisition Rules, 1955
rightly, the High Court Division erred in law
in interfering with the matter at the stage
when the writ petitioners have ample
opportunity to appear before the Zonal 10
Settlement Officer and to produce documents to
justify their claims.
Accordingly, we find substance both the
petitions.
Thus, both the petitions are disposed of.
The judgment and order dated 16.10.2017 passed
by the High Court Division in Writ Petition
No.9876 of 2014 is hereby set aside.
C. J.
J.
J.
The 22nd January, 2023.
halim/words-1625 /
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.903 OF 2023
with
C.P. No.2256 of 2017, 2427 of 2018 & C.R.P. No.339 of
2018.
(From the judgment and order dated 21.11.2022 and
08.12.2014 passed by the High Court Division in Writ Petition
No.9051 of 2018, 688 of 2014 and order dated 17.08.2009
passed by the Appellate Division in C.P. No.2260 of 2008)
S. Nehal Ahmed. Petitioner.
(In C.P.No.903/23)
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works and another
Petitioners.
(In C.P.No.2256/17,
2427/18 & C.R.P.
No.339 of 2018)
=Versus=
Bangladesh, represented by the
Secretary, Ministry of Housing and
Public Works and another
Respondents.
(In C.P.No.903/23)
S. Nehal Ahmed Respondent.
(In C.P.No.2256/17,
2427/18 & C.R.P.
No.339 of 2018)
For the Petitioner :
(In C.P No.903/23)
Mr.M. Quamrul Hoque Siddique,
Advocate (with Mr. Nakib
Saiful Islam, Advocate),
instructed by Mr. Md.Nurul
Islam Chowdhury, Advocate-on-
Record.
For the Petitioners :
((In C.P.No.2256/17 &
2427/18 & C.R.P. No.339
of 2018)
Mr.A.M. Amin Uddin, Attorney
General (with Mr. Kazi Mynul
Hasan, Deputy Attorney
General) instructed by Mr.
Haridas Paul, Advocate-on-
Record & Ms. Sufia Khatun,
Advocate-on-Record.
For the Respondents :
((In C.P.No.903/23)
Mr.A.M. Amin Uddin, Attorney
General (with Mr. Kazi Mynul
Hasan, Deputy Attorney
General) instructed by Mr.
Haridas Paul, Advocate-on- 2
Record.
For the Respondent :
(In C.P. No.2256/17 &
2427/18)
Mr.M. Qumrul Hoque Siddique,
Advocate (with Mr. Nakib
Saiful Islam, Advocate),
instructed by Mr. Minul
Hossain, Advocate-on-Record &
Mr.Md. Taufique Hossain,
Advocate-on-Record.
For the Respondents :
((In C.R.P.No.339/18)
Not represented.
Date of hearing and judgment on : 15.05.2023
J U D G M E N T
Hasan Foez Siddique, C.J: The delay in filing
Civil Petitions for leave to Appeal No.2256 of
2017, 2427 of 2018 and Civil Review Petition
No.339 of 2018 is condoned.
Civil Petitions for Leave to Appeal
Nos.2256 of 2017, 2427 of 2018, 903 of 2023 and
Civil Review Petition No.339 of 2018 have been
heard together and they are being disposed of
by this common judgment and order.
Civil Petition for Leave to Appeal No.2256
of 2017 has been filed against the judgment and
order dated 08.12.2014 passed by the High Court
Division in Writ Petition No.688 of 2014
making the Rule absolute in part and declaring
the notification communicated under memo
No.Avt †Kvt Kt 1/2012/194 dated 16.06.2013 issued
under the signature of an Assistant Secretary, 3
Ministry of Housing and Public Works to have
been issued without lawful authority and is of
no legal effect. By the said order, the
Ministry cancelled its earlier order
communicated under Memo No. Avt‡Kvt Kt 1/2012/239
dated 6th August, 2012, by which, the
Government released the abandoned House
No.139/A, Road No.1(Old), Dhanmondi Residential
Area, Dhaka (hereinafter referred to as
“disputed property”) from the list of Abandoned
Properties. The Ministry, in compliance with
the order passed in Contempt Petition No.146
of 2006 arising out of judgment and order dated
05.04.2006 in Writ Petition No.2653 of 2005 and
judgment and order dated 17.08.2009 passed in
Civil Petition for Leave to Appeal No.2260 of
2008, released the disputed property from the
“Ka” list of the abandoned properties published
in gazette notification, additional page
No.9762(14), Dhanmondi Serial No.1.
Against the order dated 16 th June, 2013,
passed by the Ministry of Housing Settlement
and Works, S. Nehal Ahmed, filing Writ Petition
No.688 of 2014, obtained Rule which was made
absolute in part. Against which, the Government 4
preferred Civil Petition for Leave to Appeal
No.2256 of 2017. Against the same order, the
Government also filed Civil Petition for Leave
to Appeal No.2427 of 2018.
S. Nehal Ahmed, filing Writ Petition
No.2653 of 2005 in the High Court Division,
obtained direction against the Government to
get exclusion of the disputed property from the
“Ka” list of the abandoned properties and also
for getting possession of the same within
2(two) months from the date of receipt of the
judgment and order dated 5th April, 2006.
Against which, the Government preferred Civil
Petition No.2260 of 2008 which was dismissed on
17.08.2009. Against which the Government filed
Civil Review Petition No.339 of 2018.
S. Nehal Ahmed filed Civil Petition for
Leave to Appeal No.903 of 2023 against the
judgment and order dated 21st November, 2022
passed by the High Court Division in Writ
Petition No.9051 of 2018 and Writ Petition
No.7082 of 2015. The government filed writ
petition No.9051 of 2018, against the judgment
and order dated 16th July, 1997 passed by the
First Court of Settlement in Settlement Case 5
No.84 of 1996 (Ka-1, Dhanmondi, Dhaka). In the
said Settlement Case, S. Nehal Ahmed got the
disputed property released from the “Ka” list
of the abandoned properties.
From the aforesaid facts, it appears to us
that the fate of all the matters is to be
decided, regulated and governed by the judgment
and order to be passed in Civil Petition for
Leave to Appeal No.903 of 2023 since the same
arises out of the judgment and order of the
Court of Settlement which was the basic
judgment passed in favour of S. Nehal Ahmed,
for getting release of the disputed property
from the list of abandoned properties. So, we
have decided to narrate the facts of the case
as stated in Civil Petition for Leave to Appeal
No.903 of 2023 arising out of Writ Petition
No.9051 of 2018 and Settlement Case No.84 of
1996.
Facts of the said Settlement case were
that, the Government leased out the disputed
property to one Abdul Hakim Khan by registered
deed of lease No.8378 dated 11.11.1957 who
transferred the same to S. Jamil Akthar, S.
Jalil Akthar and petitioner of Civil Petition 6
No.903 of 2023, namely, S. Nehal Ahmed. It was
the case of S. Nehal Ahmed that his 2(two)
brothers namely, S. Jamil Akthar and S. Jalil
Akhtar gifted the same in his favour (S. Nehal
Ahmed). S. Jamil Akhter and S. Jalil Akhtar by
swearing an affidavit before the Notary Public,
declared that they have gifted their shares of
the disputed property in favour of S. Nehal
Ahmed on 10th January, 1969. After getting
shares of those two brothers, S. Nehal Ahmed
had been possessing the entire disputed
property till he was dispossessed by some
miscreants in 1972. He tried to get the
disputed property released from the list of
abandoned properties but could not succeed.
The disputed property was wrongly included in
the “Ka” list of the abandoned properties.
Thus, S. Nehal Ahmed as claimant filed
Settlement Case No.84/1996 (Kha-1, Dhanmondi,
Dhaka) for getting the disputed property
released from the “Ka” list of the abandoned
properties.
In the Court of Settlement, the Government
contested the said case but without filing any
written reply. It was submitted on behalf of 7
the Government that the whereabouts of the
owners were not traced. S. Nehal Ahmed was also
untraced since the War of Liberation.
Accordingly, the property, in question, had
been included in the “Ka” list of the abandoned
properties.
Mr. Quamrul Hoque Siddique, learned
Advocate appearing for the petitioner in C.P.
No.903 of 2023, submits that the High Court
Division, without proper appreciation of the
materials on record, erroneously reversed the
well reasoned judgment and order of the Court
of Settlement. He submits that the Government
earlier released the disputed property from the
“Ka” list of the abandoned properties pursuant
to the order of the High Court Division,
thereafter, erroneously cancelled the same. He
further submits that the Government officials,
upon consideration of the submitted papers,
came to the conclusion that S. Nehal Ahmed is
not fictitious man and being satisfied as to
his presence in Bangladesh, the Court of
Settlement released the property, in question,
from the list of abandoned properties and
after long lapse of time, the Government 8
challenged the legality and propriety of the
judgment and order of the Court of Settlement
which was not sustainable. He, lastly, submits
that S. Nehal Ahmed is a citizen of Bangladesh
by birth and he never left this country and he
was not untraced after leaving the disputed
house and he has been living at Mohammadpur
area, the observation of the High court
Division that he managed to get some fictitious
papers and got the order of release of the
disputed property is erroneous.
Mr. A.M. Amin Uddin, learned Attorney
General, appearing with Mr. Kazi Moynul Hasan,
learned Deputy Attorney General for the
Government, submits that the High Court
Division scrutinized the papers produced by the
petitioner in the Court of Settlement as well
as in the High Court Division and came to the
conclusion that the petitioner, creating some
fraudulent papers, managed to get the property
released from the Court of Settlement in the
aforesaid Settlement case. He, lastly, submits
that S. Nehal Ahmed is a fictitious person and
all the 3 brothers were untraced since the War
of Liberation and the property, in question, 9
was rightly enlisted in the list of abandoned
properties, the High Court Division upon proper
appreciation of the materials on record, came
to the conclusion that S. Nehal Ahmed got order
of release by practising fraud upon the Court.
It is relevant here to state that this
Division earlier held that onus is on the
claimant of the building to prove that the
building is not an abandoned property. The
Government has no obligation either to deny the
facts as alleged by the claimants or to
disclose the basis of treating the property as
abandoned property merely because the claimant
disputes the same [Government of Bangladesh Vs.
Md. Jalil 15 BLD (AD) 175]. In the application
for getting release of the disputed property
from the list the claimant petitioner admitted
that he was dispossessed from the same in 1972
and it is the case of the Government that all
the three brothers are untraced since the war
of liberation.
Admittedly, Abdul Hakim got lease of
the disputed property by a registered
lease deed dated 11.11.1957. It is the case
of petitioner that Abdul Hakim transferred 10
the disputed land to him and his two
brothers, namely, S. Jamil Akhtar and S.
Jalil Akhtar, by registered kabla deed
No.8656 dated 28.12.1960. His two other
brothers S. Jamil Akhtar and S. Jalil
Akhtar gifted their shares to him and in
support of such oral gift they swore an
affidavit on 10.01.1969 in his favour.
It
is settled principle that when an
instrument of gift is reduced into writing,
the same must be registered. Oral gift is
admissible in the Mohammedan Law and in
order to prove oral gift, offer, acceptance
and delivery of possession of the alleged
gifted land must be established.
At the time of hearing of the instant
matter in the High Court Division, the High
Court Division called for the record of
Settlement Case No.84 of 1996(K-1/avbgwÛ Av/G). We
have also perused the case record of the
Court of Settlement as well. Photocopy of
the application for getting release and
possession of the disputed house as 11
submitted in the Court of Settlement is
reproduced below:
12
13
From the top portion of the first page of
the above produced application, it appears that
the same was allegedly filed on 08.01.1987 but
from the order sheet of the settlement case
record, it appears that the first order was
passed on 13.04.1996. In the case of Begom
Lutfunnessa Vs. Bangladesh reported in 42 DLR
(AD) 86 this Division has observed that the
Abandoned Building (Supplementary Provisions)
Ordinance, 1985 was promulgated on 28 November,
1985 and the list under section 5(1)(a) thereof
was published in the gazette on 28.04.1986.
Section 7 provides that any person claiming any
right or interest in any building which is
included in the list may, within a period of
108 (perhaps 180) days from the date of the
publication of the list in the official gazette
make an application to the Court of Settlement
for exclusion of the building from such list
etc.
We do not find any cogent reason of
passing first order by the Settlement Court on
13.04.1996 inasmuch as the petitioner claimed
that the same was filed on 08.01.1987. In
absence of any order as to the limitation,
passing of first order in 1996 ignoring point 14
of limitation cropped up a question how the
Court of Settlement entertained such case.
We
also did not find any order in the case record,
in respect of extension of time as per
provision of section 11 of the Ordinance.
The
Court of Settlement ignored the point of
limitation holding that the petitioner could
not be deprived of his right to assert his
claim in that forum under the Ordinance. Which
cannot be accepted as proper finding for
avoiding the question of limitation in view of
the provision of Section 7 of the Ordinance.
In the High Court Division, this question was
raised and it was resolved by the High Court
Division with the following words, “Though
respondent No.2 (S. Nehal Ahmed) stated that he
filed the application on 08.10.1987 (Annexure-
C) under section 7 of Ordinance No. LIV of 1985
in the First Court of Settlement, Dhaka but
neither any receipt of filing the said
application on 08.01.1987 has been produced
before this Court nor the said application
depict any endorsement of the First Court of
Settlement, Dhaka with a date”. High Court
Division also observed that in response to the 15
query of the Court, learned Advocate for the
writ respondent No.2 failed to answer the query
in that regard satisfactorily.
High Court
Division finally observed that application
dated 08.01.1987 was subsequently created to
save the limitation. We do not find anything in
the record to disagree with the findings and
observations arrived at by the High Court
Division as to the point of limitation. The
presence of such suspicious circumstances
naturally tends to make the initial onus very
heavy and unless it is satisfactorily
discharged the Court would be reluctant to
treat the document as genuine one.
The date of birth of S. Nehal Ahmed was
shown on 31.03.1940. He produced a photocopy of
aforesaid application in the High Court
Division wherefrom it appears that by
interpolation his date of birth was converted
to 01.03.1940 in place of 31.03.1940 (running
pages 145 and 482 of the paper book of C.P.
No.903 of 2023). From the judgment it appears
that the learned Advocate of the petitioner
admitted in the High Court Division the fact of
tempering his date of birth in the papers
mentioned above. Where an instrument appears to
be materially altered, the law naturally casts
a heavy burden on the party who produced the
same to explain the alteration and show when it 16
was made. Where an alteration appears upon the
face of a document the party producing it must
show that the alteration was made with consent
of the parties. In this case the petitioner
failed to offer any explanation.
From the materials on record, it appears
that on 21.11.1989, he filed an application
addressing the Chairman, Court of Settlement
for getting necessary order pursuant to the
application submitted by him on 08.01.1987. A
Photostat copy of the said application is
reproduced below:
17
The signatures as appeared in the above
produced applications and the signatures of two
brothers of S. Nehal Ahmed appeared in the
affidavit sworn by them, namely, S. Jamil
Akhter and S. Jalil Akhter are required to be
compared with very carefully. Photocopy of
signatures shown in the affidavit S. Jamil
Akhter and S. Jalil Akhter are shown below for
comparison:
Those hand writings of the two brothers
and S. Nehal Ahmed appeared in the above shown
two applications have been compared with very
carefully. The alphabet “S”, “A” and “K” are
very significant. In those three signatures
which appear to us that those are identical.
S. Nehal Ahmed allegedly executed a
vokalatnama for the purpose of using the same
in the Court of Settlement. In the said
Vakalatnama he affixed Court fee of tk.5/- but
we do not find that the same was punched or
cancelled. Section 30 of the Court fees Act,
1870 provides that no document requiring a fee
under the Act shall be filed or acted upon in 18
any proceeding in any Court or office until the
stamp or receipt has been cancelled.
It further appears from the signature of
S. Nehal Ahmed appeared in Vakalatnama
submitted before the Court of Settlement does
not tally with his other signatures appeared
and produced subsequently. Such inconsistencies
are highly doubtful. When we asked Mr. Quamrul
Hoque Siddique, learned Advocate for the
petitioner, about the inconsistencies
particularly, non-punching the court fee
affixed with Vakalatnama and the inconsistent
signatures of S. Nehal Ahmed in different
documents, he said that the said Vakalatnama
might have been subsequently replaced by
removing the original Vakalatnama by the
interested parties. But it appears from the
Vokalatnama that one M.A. Sarwar, a learned
Advocate put his signature in the said
Vakalatnama accepting the same for S. Nehal
Ahmed and his name has been mentioned in the
judgment of the Court of Settlement. The High
Court Division observed that signatures of S.
Nehal Ahmed in the Vokalatnama filed in Writ
Petition No.688 of 2014 and the affidavit 19
sworn in Writ Petition No.688 of 2014 are also
not similar. The whole attempts appear to be
highly suspicious one. In such circumstances,
it is difficult to accept the submission of Mr.
Siddique that the Vakalatnama was subsequently
replaced in the case record of the Court of
Settlement by replacing another one.
Since the
Vakalatnama alleged to have been executed by S.
Nehal Ahmed submitted in the Court of
Settlement is doubtful one, we are of the view
that the instant case for getting release of
the disputed property and the judgment and
order passed in the said case showing S. Nehal
Ahmed as petitioner of the Settlement case is
not liable to be approved and upheld
. Someone
claiming himself S.Nehal Ahmed, by practising
fraud upon this Court, tried to manage the
order and he successfully did so.
It is relevant here to state that one Toha
Khan and 8 others earlier filed Case No.408 of
1989 (Ka-11-Dhanmondi Residential Area, Dhaka)
in First Court of Settlement, Dhaka and the
first Court of Settlement presided by Justice
Abdul Bari Sarkar, by a judgment and order
dated 15th December, 1992, dismissed the same 20
observing that, “it is clear th at the
whereabouts of S. Jamil Akhtar, S. Jalil Akhtar
and Nehal Ahmed, the Vendee of Abdul Hakim Khan
are not known and the case building was rightly
declared as abandoned property and included in
the list correctly. On 16.07.1997, same Court
of Settlement in case No.84 of 1996 (Kha-1,
Dhanmondi, Dhaka) has passed the impugned
judgment and order without stating any single
word about the consequence of its earlier
finding.
A Court must give reasons for its
decision in a case. The reasons should include
an explanation of why the Court has chosen to
follow or not to follow a previous decision
which is identical before it. When an earlier
decision is not followed it is said to be
distinguished from the earlier case.
The
earlier finding of the Court of Settlement and
presumption that enlistment of a building under
section 5(1) of the Ordinance that the property
is an abandoned property and admission of the
claimant petitioner that he was dispossessed
from the disputed property in 1972 and
discussions made above clearly established that
S. Jamil Aktar, S. Jalil Aktar and S. Nehal 21
Ahmed could not occupy, manage or supervise the
disputed property when P.O.16 of 1972 came into
operation.
From the papers produced in C.P. No.2427
of 2018 it appears that some important pages of
a document in connection with the disputed
property were removed from the office of
Housing Settlement and Works.
Considering the aforesaid facts and
circumstances, we do not find any illegality in
the judgment and order of the High Court
Division which call for any interference by
this Division.
Accordingly, the Civil Petition for Leave
Appeal No.903 of 2023 is dismissed.
Civil Petition for Leave to Appeal No.2256
of 2017, 2427 of 2018 and Civil Review Petition
No.339 of 2018 are to be governed and disposed
of in the light of the judgment and order
passed by this Division in Civil Petition for
Leave to Appeal No.903 of 2023 and following
the consequences and result of the civil
petition.
C. J.
J.
J.
The 15th May, 2023.
words-3399/
|
1
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Hasan Foez Siddique, Chief Justice.
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.1328 of 2023.
(From the judgment and order dated 15.03.2023 passed by the High Co urt
Division in Writ Petition No.3185 of 2023).
Advocate M.A. Aziz Khan ..........Petitioner.
-Versus-
The Election Commission of Bangladesh,
represented by the Chief Election
Commissioner, Nirbachan Bhaban (7th -8 th
Floor), Agargaon, Dhaka-1207 and another.
.......Respondents.
For the Petitioner
(In person)
: Mr. Advocate M.A. Aziz Khan, in person, instructed
by Ms. Mahmuda Begum, Advocate-on-Record.
For the Respondents : Mr.A.M. Amin Uddin, Attorney General (with
Mr.Mohammad Mehedi Hassan Chowdhury,
Additional Attorney General and Mr. Khan
Mohammad Shamim, Advocate) instructed by Mr.
Haridas Paul, Advocate-on-Record.
Date of hearing : The 18th May, 2023
JUDGMENT
Hasan Foez Siddique, C. J:
The petitioner, who is a learned Advocate of this Court, fil ed Writ
Petition No.3185 of 2023 in the High Court Division under Article
102(2)(ii) of the Constitution of the People’s Republic of Bangladesh
with a prayer for issuance of Rule Nisi calling upon the writ r espondents
to show cause as to why the scrutiny of nomination paper of t he sole
presidential candidate Mr. Md. Shahabuddin under Section 7 of the 2
Presidential Election Act, 1991 declaring him eligible and elected as
single candidate and the Notification No.17.00.0000.034.34. 025.22-119
dated 13 February, 2023 (Annexure-“A” to the writ petition) should not
be declared to have been made without any lawful authority and should
not be regarded as null and void and is of no legal effect.
Judicial review in election dispute is not a compulsion. Since the
separation of powers is a basic feature of the Constitution and, ther efore,
every dispute involving the adjudication of legal rights must be left to
the decision of the judiciary. In the writ petition, the petiti oner did not
make any allegation that his any legal right has been infringed. I n the
writ petition, the writ petitioner took two grounds for getti ng relief as
prayed for, which are:
“I. For that the respondents failed to act in accordance with law
while scrutinizing the nomination paper under section 7 of the
Presidential Election Act, 1991 (Act 27 of 1991) read with article
119(1)(a) of the Presidential election (?) and got the election
flawed for misinterpretation of law hitting the qualification of the
sole candidate under section 9 of the ACC Act, 2004 read with
article 66(2)(g) of the Constitution rendering the Notification
No.17.00.0000.034.34.025.22-119 dated 13 February 2023
declaring Mr. Shahabuddin Ahmed(?) as president elect void and
illegal,
II. For that the CEC fell into serious error of law and
misinterpreted the law by not holding the words “appoint” and
“elect” synonymous and interchangeable as means to hold a public
“post” or “office” in the republic and failed to disqualify the
nomination of the sole candidate Mr. Shahabuddin Ahmed(?) as
required by the Constitution and other laws.”
The High Court Division, by the impugned judgment and order
dated 15 th March, 2023, rejected the said petition along with Writ 3
Petition No.3144 of 2023 summarily. Thus, the writ petitioner has filed
this leave petition.
Advocate M.A. Aziz Khan, appearing, in person, in support of the
civil petition, submits that the Office of the President is an office of
profit of the Republic and that earlier Md. Shahabuddin had been
performing his duty as Commissioner of `ybx©wZ `gb Kwgkb (the
Commission) so he was disqualified to participate in the electi on for
post of President of the Republic in view of the provision of Section 9
of the Durniti Domon Commission Ain, 2004 (the Ain). It has been
submitted that in the absence of any legislation or constitutional
provision to remove the disqualification of Md. Shahabuddin contained
in section 9 of the Ain read with article 66(2) (g) of the Constitution, his
election was illegal.
Some provisions of laws, relevant for the disposal of the p etition,
are quoted below:
Section 9 of the Ain, provides the following provision: ÒKg©vemv‡bi
ci †Kvb Kwgkbvi cªRvZ‡š¿i Kv‡h© †Kvb jvfRbK c‡` wb‡qvM jv‡fi †hvM¨ nB‡eb bv Ó|
(underlined by us)
Any person seeking to contest in the election to the Office of the
President must satisfy the certain eligibility criteria stipu lated in the
Constitution under article 48 clause 4 which provides as follows:
“(4) A person shall not be qualified for election as President if he-
(a) is less than thirty-five years of age; or
(b) is not qualified for election as a member of Parliament; or 4
(c) has been removed from the office of President by
impeachment under this Constitution.”
Article 66 of the Constitution provides,
“66.(1) A person shall subject to the provisions of clause (2),
be qualified to be elected as, and to be a member of
Parliament if he is a citizen of Bangladesh and has attained
the age of twenty-five years.
(2) A person shall be disqualified for election as, or for
being a member of Parliament who-
(a) is declared by a competent court to be of unsound
mind;
(b) is an undischarged insolvent;
© acquires the citizenship of , or affirms or
acknowledges allegiance to, a foreign state;
(d) has been, on conviction for a criminal offence
involving moral turpitude, sentenced to imprisonment for a
term of not less than two years, unless a period of five years
has elapsed since his release.
[(e) has been convicted of any offence under the
Bangladesh Collaborators (Special Tribunals) Order, 1972;
(f) holds any office of profit in the service of the
Republic other than an office which is declared by law not to
be disqualified its holder; or
(g) is disqualified for such election by or under any
law.
[(2A) Notwithstanding anything contained in sub-clause(c) of
clause (2) of this article, if any person being a citizen of
Bangladesh by birth acquires the citizenship of a foreign
State and thereafter such person-
(i) in the case of dual citizenship, gives up the foreign
citizenship; or 5
(ii) in other cases, again accepts the citizenship of
Bangladesh-
for the purposes of this article, he shall not be deemed to
acquire the citizenship of a foreign State]
[(3) For the purposes of this article, a person shall not be
deemed to hold an office of profit in the service of the
Republic by reason only that he is the President, the Prime
Minister, the Speaker, the Deputy Speaker, a Minister,
Minister of State or Deputy Minister]
(4)If any dispute arises as to whether a member of Parliament
has, after his election, become subject to any of the
disqualifications mentioned in clause (2) or as to whether a
member of Parliament should vacate his seat pursuant to
article 70, the dispute shall be referred to the Election
Commission to hear and determine it and the decision of the
Commission on such reference shall be final.
(5) Parliament may, by law, make such provision as it deems
necessary for empowering the Election Commission to give
full effect to the provisions of clause (4).”
The sole contention of the petitioner rests on the ground that si nce
Mr. Md. Shahabuddin will hold the office of profit in the service of the
Republic, he was not qualified to participate in the election for the post
of the President of the Republic in view of the provision of se ction 09 of
the Ain.
Now the question arises as to whether the office of the Presid ent
of the People’s Republic of Bangladesh is an office of Profit in the
Service of the Republic or not.
Article 66(3) of the Constitution states that for the purposes of this
article, a person shall not be deemed to hold an office of profit in the
service of the Republic by reason only that he is the Preside nt, the Prime 6
Minister, the Speaker, the Deputy Speaker, a Minister, Minister of State
or Deputy Minister. As per article 66(3) of the Constitutio n, for the
purpose of election as a member of Parliament, office of the Presi dent
shall not be deemed to be office of the profit in the service of the
Republic.
Like our Constitution, article 102 (1) (a) of the Constitution of
India provides that a person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament if he holds any
office of profit under the Government of India or the Government of any
State, other than office declared by Parliament by law not to disqualify
its holder. Article 58(1) of the Constitution of India also pr ovides that no
person shall be eligible for election as president unless (a) he is a citizen
of India, (b) has completed the age of thirty-five years, and (c) is
qualified for election as a member of the House of the People. Article
58(2) of the Constitution of India provides that a person shall not be
eligible for election as president if he holds any office of pr ofit under the
Government of India or the Government of any state or under any l ocal
or other authority subject to the control of any of the said Governments.
Explanation to article 58 of the Constitution of India provides that for
the purposes of this article, a person shall not be deemed to hold any
office of profit by reason only that he is the President or Vice-President
of the Union or the Governor of any State or is a Minister eithe r for the
Union or of any State. In Bangladesh the term office of profit has not
been categorically defined in the General Clauses Act, 1897 or in the
Constitution. In India the term office of profit has not got uniform
definition. Therefore, this term became subject of judicial i nterpretation
at different times. This term has been defined in various ways in 7
different cases depending upon the facts and circumstances of each case.
Let us have an overview of cases in which this term has been explained.
In the case of Purno Agitok Sangma Vs. Pranab Mukherjee [AIR
2013 Supreme Court 372] respondent’s election to the post of President
was challenged for holding office of profit under government and it was
held that the Office of the Chairman of the Indian Statistical Institute
was not an office of profit since neither any salary nor honor arium or
any other benefit attached to the holder of the said post. It was not such a
post which, in fact, was capable of yielding any profit, which could
make it, in fact, an office of profit. The term “office” has nowhere been
expressly defined. Generally, an “office” refers to an employment which
is permanent in nature. In order to be an office of profit, th e office must
carry various pecuniary benefits or must be capable of yielding
pecuniary benefits such as providing for official accommodation or even
a chauffeur driven car, which is not so in respect of the post of Chairman
of the Indian Statistical Institute, Calcutta.
In the case of K. B. Rohamare Vs. Shankar Rao [AIR 1975
Supreme Court 575] first respondent’s election to Maharashtra State
Legislative Assembly was challenged and it was held that a member of
the Wage Board, Sugar Industry, Constituted by the Maharashtra
Government under section 86-B of the Bombay Industrial Relations Act,
1946, undoubtedly holds an office under the State Government. The law
regarding the question whether a person holds an office of profit should
be interpreted reasonably, having regard to the circumstances of the case
and the times with which one is concerned, as also the class of person s
whose case the court is dealing with and not divorced from reali ty. The 8
question has to be looked at in a realistic way. Merely because par t of
the payment made to the member is called honorarium and part of the
payment daily allowance, the court cannot come to the conclusion that
the daily allowance is sufficient to meet his daily expenses and the
honorarium is a source of profit. We are thus satisfied that the first
respondent did not hold an office of profit.
In the case of Madhukar G. E. Pankakar Vs. Jaswant Chobbildas
Rajani and others [AIR 1976 Supreme Court 2283] it was held that a
Medical Practitioner working as a Panel doctor appointed under the
Employees’ State Insurance Scheme does not hold “office of profit”
under the State Government, so as to attract disqualification under
section 16 (1) (g) of the Maharashtra Municipalities Act. How proximate
or remote is the subjection of the doctor to the control of the
Government to bring him under Government is the true issue. Indirect
control, though real, is insufficient. Medical Practitioner w orking as a
Panel doctor appointed under the Employees’ State Insurance Scheme
was held not to hold “office of profit” under the State Government
mainly on the ground that the subjection of the aforesaid doctor to the
control of the Government was remote.
In the case of Ashok Kumar Bhattacharyya Vs. Ajay Biswas and
others [AIR 1985 Supreme Court page 211] election of respondent no 1
to Tripura State Legislature was challenged and it was held that the
Accountant-in-Charge of Agartala Municipality does not hold office of
profit under the Government of Tripura since under the Bengal
Municipal Act, 1932 the State Government does not exercise any control
over officers like Accountant-in-Charge respondent no 1 and that he 9
continues to be an employee of the Municipality though his appointment
is subject to the confirmation by the Government.
In the case of Shibu Soren Vs. Dayanand Sahay [AIR 2001SC
page 2583] election of the appellant to Jharkhand Rajya Sabha was
challenged and it was held that the appellant (Chairman of Interim
Jharkhand Area Autonomous Council) was holding an office of profit
under the State Government. The State Government not only had the
exclusive jurisdiction to appoint (nominate) the Chairman of Interim
JAA Council but also power to remove him since under Section 23(7) of
the JAAC Act, the Chairman and Vice-Chairman of the Interim JAA
Council, as well as members of the Interim Executive Council, “shall
hold their office during the pleasure of the State Government”.
We find that in the cases of Madhukar G. E. Pankakar Vs. Jaswant
Chobbildas Rajani and others [supra], Ashok Kumar Bhattacharyya Vs.
Ajay Biswas and others [supra] and Shibu Soren Vs. Dayanand Sahay
[supra] Supreme Court of India was of the view that whether a service
was under the Central or state Government has to be determin ed in the
light of the control the Government exercises on that service. R emote
control on the service was not sufficient to bring that servic e under the
Government.
In Shivamurthy Swami Inamdar V. Agadi Sanganna Andanappa
(1971) 3 SCC 870 it was held that
the tests for finding out whether an
office in question is an office under the Government and whether it is an
office of profit, are (1) Whether the Government makes the appointment,
(2) Whether the Government has the right to remove or dismiss th e
holder; (3) Whether the Government pays the remuneration; (4) What 10
are the functions of the holder? Does he perform them for the
Government and (5) Does the Government exercise any control over the
performance of these functions?
In the case of Madhukar G. E.
Pankakar Vs. Jaswant Chobbildas Rajani and others [supra] there was
also discussion about the same tests as laid down in Shivamurthy Swami
Inamdar V. Agadi Sanganna Andanappa (supra) for determining office
of Profit under Government.
In the case of Purno Agitok Sangma V. Pranab Mukherjee
(Supra), it was observed that the expression “office of profit” had not
been defined in the Constitution. It was further observed that the fir st
question to be asked in this situation was as to whether the Government
has power to appoint and remove a person on and from the office and if
the answer was in the negative, no further inquiry was called for.
However, if the answer was in the positive, further inquires would have
to be conducted as to the control exercised by the Government over t he
holder of the post. Since the Government does not have the control on
appointment, removal, service conditions and functioning of the
President, the President does not hold an office of profit in the service of
the Republic.
The term “cªRvZ‡š¿i Kvh©Ó has not been defined in the Ain. Since the
term has not been defined in the Ain, we can look for the definitio n in
the General Clauses Act, 1897. Section 3(50) of the General clauses act,
1897 defines that “the service of the Republic” means any service, po st
or office whether in a civil or military capacity, in respect of the
Government of Bangladesh, and any other service declared by law to be
a service of the Republic”. Service of the Republic defined in section 11
3(50) of the General Clauses Act, 1897 has got same connotations as in
article 152 of the Constitution.
We are of the view that since the term
“cªRvZ‡š¿i Kvh©Ó has not been defined in the Ain and the same has
identically been defined in the General Clauses Act, 1897 and in Art icle
152 of the Constitution, legislature intended that the term “ cªRvZ‡š¿i Kvh©Ó
would have the same meaning as in the General Clauses Act, 1897 and
Article 152 of the Constitution.
The Legislature is presumed to have
been aware of the existing Law [Md. Abdus Sattar Howladar Vs. Sub-
Registrar and others 29 DLR 320] and there is a presumption that the
legislature does not intend to make a change in the existing law beyond
what is expressly provided or which follows by necessary implication
from the language of the statute in question [River Wear Commis sioners
Vs. Adamson, (1877) 1QBD 546; National Assistance Board Vs.
Wilkinson,( 1952) 2QB 648]. It is thought to be in the highest degree
improbable that Parliament would depart from the general system of law
without expressing its intention with irresistible clearness, and to give
any such effect to general words merely because this would be their
widest, usual, natural or literal meaning would be to place on t hem a
construction other than that which Parliament must be supposed to have
intended (Maxwell-Interpretation of Statutes, 12 ed., p. 116).
Even if the
Ain contained a different definition of “ cªRvZ‡š¿i Kvh©Ó, the definition of
“cªRvZ‡š¿i Kvh©Ó as contained in article 152 of the Constitution would have
got primacy over the definition of “ cªRvZ‡š¿i Kvh©Ó in the Ain, the
Constitution being the supreme law of the land.
In order to determine whether the office of the President i s an
office of profit in the Service of the Republic we meticulously need to go 12
through Part IX of the Constitution. Chapter I of this part dea ls with
services of the Republic. Subject to the provision of the Const itution
Parliament may by law regulate the appointment and conditions of
service of persons in the service of the Republic (article 133). It shall be
competent for the President to make rules regulating the appoi ntment
and the conditions of service of such persons until provision in that
behalf is made by or under any law, and rules so made shall have effect
subject to the provisions of any such law (proviso to article 133). T his
kind of rules framed by the President regulating the appointment and the
conditions of service of the persons in the service of the R epublic is
called as special executive legislation in Constitutional Jurisprud ence.
The Government Servants (Conduct) Rules, 1979 and “miKvix Kg©Pvix
(k„•Ljv I Avcxj) wewagvjv, 2018Ó are the examples of such rules framed by
the President. Cadre officers in the Service of the Republic are appointed
through Public Service Commission (article 140). Chairman and
members of the Public Service Commission are appointed by the
President (article 138). Except as otherwise provided by the
Constitution every person in the service of the Republic shall hold office
during the pleasure of the President (article 134). As per the
abovementioned Constitutional Provision President is the appointing
authority of the persons in the Service of the Republic and every person
in the service of the Republic holds office during the pleasure of the
President except as otherwise provided by the Constitution.
Hypothetically, if president of the Republic falls within t he category of
persons in the service of Republic, he can hold office during his o wn
pleasure as per article 134. But it is impossible on the ground that 13
President can be removed by impeachment by two thirds majority of the
total members of Parliament (Article 52 and 53 of the Constitution).
From the discussions made above, it appears that a president
candidate of the People’s Republic of Bangladesh shall have to be
qualified for election as a member of parliament. A member of
Parliament candidate in Bangladesh cannot simultaneously hold any
office of profit in the service of the Republic other than an office which
is declared by law not to be disqualified its holder.
As per provision of
Article 152 of the Constitution, “the service of the Republic” means any
service, post or office whether in a civil or military capacity, in respect
of the Government of Bangladesh, and any other service declared by la w
to be a service of the Republic. Sole Presidential Candidate Mr. Md.
Shahabuddin does not hold any office of profit in the service of the
Republic as per the definition provided in Article 152 of the
Constitution. Therefore, he is qualified for election to be a member of
the Parliament.
It is the authority of the Government to appoint a person to any
office of profit or, to revocate his appointment at their discretio n and to
pay out of the Government revenues, though the source of payment w as
held not to be always a decisive factor. In the case of President of the
People’s Republic of Bangladesh, Government of Bangladesh cannot
appoint President. Removal procedure of the President is also very
stringent since he can be removed by impeachment by two thirds
majority of the total members of Parliament (Article 52 and 53 of the
Constitution). Government cannot remove president at its will since
Government may be formed by simple majority of the members of 14
Parliament [article 56 of the Constitution]. So from the point of view of
control over the President by the Government, the office of t he President
can in no way be termed as office of profit in the Service of the Republic
in respect of the Government. This position was also recognized in the
case Abu Bakkar Siddique Vs. Justice Shahabuddin Ahmed and Others
reported in 49 DLR (HCD) page 1. In this case it has been categorically
held that the office of the President of the Republic is not an office in the
service of the Republic in respect of the Government of Bangladesh.”
The question is who are parties to an election petition and who
may be impleaded as parties to an election petition. In the case of J yoti
Basu and others V. Debi Ghosal and others reported in AIR 1982 SC
983 it was observed that the nature of the right to elect, the right to be
elected and the right to dispute an election and the scheme of the
Constitutional and statutory provisions in relation to these rights have
been explained by the Court in N.P. Ponnuswami V. Returning Officer
(AIR 1982 SC 983) and Jagan Nath V. Jaswant Singh (1982 SCC Vol.
page 691). We proceed to state what we have gleaned from what has
been said, so much as necessary for the case.
A right to elect, fundamental right is to democracy, is,
anomalously enough, neither a fundamental right nor a common Law
Right. It is pure and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside of statute, “there
is no right to elect, no right to be elected and no right to dispute an
election.” The Supreme Court of India in the case of Dr. N. B. Khare-II
V. Election Commission (AIR 1958 SC 139) held that the right to stand
for the election and the right to move for setting aside the election are 15
not common law rights. It was further held that the right of the person to
file the application for setting aside an election must be determin ed by
the statute. In the case Charan Lal Sahu V. Shri Fakharuddin Ali Ahmed
reported in AIR 1975 SC 1288 it was observed that since candidature of
Mr. Lahu was rejected he had no locus-standi to file election petition.
Mr. Md. Shahabuddin was not even impleaded in the writ petition
and present leave petition which seems to be a violation of the princip les
of natural justice. It is to be mentioned here that the electi on of Pranab
Mutherjee, former President of India, was challenged in the Supreme
Court of India in the case of Purno Agitok Sangma Vs. Pranab
Mukherjee [AIR 2013 Supreme Court 372], wherein Pranab Mukherjee
was impleaded as respondent. In the case reported in 49 DLR (HCD)
page 1 Justice Shahabuddin Ahmed was impleaded as respondent No.1.
Since in the writ petition the interest of Md. Shahabuddin was going to
be affected directly, he was a necessary party.
It is regrettable that the writ petition challenging the elect ion of
the High office of the Pre sident of the People’s Republic of Bangladesh
should not be filed in a fashion as cavalier. It is upon the writ petitioner
to make out a clear case for interference in his pleadings. Any casual
negligent or cavalier approach in such serious and sensitive matter
involving great public importance cannot be countenanced or glossed
over too liberally as for fun.
The domain and the extent of the writ jurisdiction under article
102 of the Constitution is very limited. With a few notable exce ptions
when the High Court Division has considered the matter as an espec ially 16
exceptional circumstance and in the case it entertained such petition for
examination. It usually declined to entertain the election matter.
Accordingly, this petition is dismissed with a cost of taka
1,00,000/- (one lac). The leave petitioner is directed to deposit cost in the
relevant head of the Republic exchequer within 2(two) weeks from the
date of receipt of the order.
C. J.
J.
J.
J.
J.
J.
J.
J.
The 18th May, 2023
H/word-4400/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS.202-203 OF 2014 with C.P. Nos.1257-1258
of 2023.
(From the judgment and decree dated 19.05.2011 passed by the
High Court Division in Writ Petition No.5864 of 2000 and 6442 of
2008)
Raihana Shafi being dead her heirs:
Monir Ahmed and others :
Appellant
(C.A.202-203/2014)
Government of Bangladesh, represented
by the Secretary, Ministry of Works:
Petitioner
(C.P.1257-58 of 2023)
=Versus=
Chairman, First Court of Settlement,
Segunbagicha, Dhaka and others :
Respondents.
(C.A. No.202-203/14)
Hasibur Rahman Chowdhury and others : Respondents.
(C.P.Nos.1257-58 of 2023)
For the Appellant :
(In both the appeals)
Mr. Probir Neogi, Senior
Advocate with Mr. Shishir
Kanti Majumder, Advocate, Mr.
Khandokar Reza-E-Raqiub,
instructed by Mr. Md.
Taufique Hossain, Advocate-
on-Record.
For the petitioner :
(In both C.P.1257-1258/23)
Mr. Sheikh Mohammad Morshed,
Additional Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
For the Respondent No.1-2:
(In both the appeals)
Mr. Sheikh Mohammad Morshed,
Additional Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
For the respondent No.3:
(In both the appeals)
Mr.A.B.M. Siddiqur Rahman
Khan, Advocate, instructed by
Mr. Mohammad Ali, Advocate-
on-Record.
Respondent :
(In C.P.1257-1258 of 2023)
Not represented
Date of hearing on : 07.03.2023, 14.03.203,
05.04.2023 and 10.05.2023
Date of judgment on : 17.05.2023
2
J U D G M E N T
Hasan Foez Siddique, C.J: The delay in filing
Civil Petitions for Leave Appeal Nos.1257 of
2023 and 1258 of 2023 is condoned.
Civil Appeal Nos.202 of 2014, 203 of 2014
and Civil Petitions for Leave to Appeal
Nos.1257-1258 of 2023 are heard analogously and
they are being disposed of by this common
judgment and order.
One Abul Hashem and Monir Ahmed filed
Settlement Case No.14 of 1991 (Ka: Sl. 18,
P.9762(11) in the First Court of Settlement,
Dhaka for getting release of the House No.21,
Larmini Street, Sutrapur, Dhaka stating that
one Hamidunnessa was the owner of the disputed
property who gifted the same to Kaser Ali.
Kaser Ali brought Money Suit and got decree and
in execution case arising out of the decree, he
purchased the disputed property and obtained
sale certificate. Kaser Ali died leaving two
sons. The petitioners of Settlement Case
claimed their title and possession in the
disputed land through Kaser Ali. The Court of
Settlement disbelieved the documents produced
by Abul Hashem and another and dismissed the
case by a judgment and order dated 01.10.1993 3
holding that the disputed property belonged
Hamidunnessa and Hasibur Rahman. They had been
possessing the same as their own property till
December, 1971. Thereafter, they left their
house and their whereabouts were not traced.
One Hasibur Rahman Chowdhury, claiming himself
as son of Hamidunnessa, filed review petition
for reviewing the judgment and order dated
01.10.1993 in the said case. The Court of
Settlement, by its order dated 10.10.2000,
rejected the said application for review
holding that in the aforesaid settlement case
Hasibur Rahman was not party so the instant
review petition was not maintainable. Against
the said order dated 10.10.2000 passed in
Settlement Case No.14 of 1991 by the Court of
Settlement, Hasibur Rahman Chowdhury filed Writ
Petition No.5864 of 2000 in the High Court
Division and obtained Rule.
Hasibur Rahman Chowdhury also filed Writ
Petition No.6442 of 2008 in the High Court
Division, against the execution of sale
agreement and order of allotment in favour of
writ respondent No.3 Raihana Shafi by the
Government in respect of the disputed land and
obtained Rule. 4
The High Court Division heard the Writ
Petition No.5864 of 2000 and Writ Petition
No.6442 of 2008 analogously and disposed of by
common judgment dated 19.05.2011.
The High Court Division made the Rule
absolute issued in Writ Petition No.5864 of
2000 and set aside the judgment and orders
dated 10.10.2000 and 21.10.1993 passed by the
Court of Settlement in Settlement Case No.14 of
1991. It disposed of the Writ Petition No.6442
of 2008. The High Court Division sent back the
case on remand to the Court of Settlement with
direction to dispose of the case within 4(four)
months.
Against the aforesaid judgment and order,
writ respondent No.3 appellant has filed Civil
Appeal No.202 of 2014 and 203 of 2014 in this
Division upon getting leave and Government
filed Civil Petitions for Leave to Appeal
Nos.1257 of 2023 and 1258 of 2023.
Mr. Probir Neogi, learned Senior Advocate
appeared for the appellant Raihana Shafi in
both the appeals and Mr. Sheikh Mohammad
Morhsed, learned Additional Attorney General
appeared on behalf of the Government in the
aforesaid two leave petitions. On the other 5
hand, Mr. A.B.M. Shiddiqur Rahman Khan, learned
Advocate appeared for the respondent Hasibur
Rahman Chowdhury in all the appeals and
petitions. Raihana Shafi claimed possession of
the disputed property upon getting allotment
from the Government. In fact, the submissions
of Mr.Probir Neogi and Additional Attorney
General are identical.
They submit that the writ petitioner
Hasibur Rahman Chowdhury is a fictitious man
and the petitioners of the Settlement Court,
namely, Abul Abul Hashem and Monir Ahmed,
preparing some fake papers and taking the
opportunity of the finding of the Court of
Settlement that Hamidunnessa and Hasibur
Rahman Chowdhury are owners of the property, in
question, have filed instant writ petition
behind the back in order to grab the abandoned
property. They submit that the High Court
Division committed error of law in setting
aside the order passed in review petition
though there is no application of the Code of
Civil Procedure in disposing of the litigation
before the Court of Settlement. They add that
the Court of Settlement rightly rejected the
review petition, since the same was not 6
maintainable. Their further submission was that
the High Court Division has committed a
fundamental error of law in directing the Court
of Settlement to proceed with the Settlement
Case again at the instance of so called Hasibur
Rahman Chowdhury though in Settlement case the
provision of order 1 Rule 10 of the Code of
Civil Procedure has no application. They,
lastly, submit that the High Court Division, in
fact, has given new life of the settlement
case, thereby, allowed the Hasibur Rahman
Chowdhury to ventilate his grievance inasmuch
as his claim, by filing before the Court of
the Settlement, is hopelessly barred by
limitation.
Mr. A.B.M. Siddiqur Rahman Khan, learned
Counsel appearing for the respondent Hasibur
Rahman Chowdhury in both the appeals and the
civil petitions, submits that Hasibur Rahman
Chowdhury and his mother Hamidunessa who are
the admitted owners of the property, in
question, have been and has been living in
different places in Bangladesh. In the papers
produced by him clearly proved that Hashibur
Rohman Chowdhury is a citizen of Bangladesh so
he is entitled to get release of the disputed 7
property, the High Court Division rightly
remanded the case to the Court of Settlement
allowing him to ventilate his grievance and
there is no error in the judgment and order of
the High Court Division.
It is not disputed that the Hasibur Rahman
Chowdhury did not file any case in the Court of
Settlement for getting release of the disputed
property from “Ka” list of the abandoned
properties which was published in the
Bangladesh Gazette on 23.09.1986 [Ka list in
serial No.118 page 9762 (11)]. He filed an
application for reviewing the judgment and
order dated 31.10.1993 passed by the Court of
Settlement in Settlement Case No.14 of 1991
filed by one Abul Hashem and Monir Ahmed.
That
review application was filed on 10.10.2000,
that is, after about 7(seven) years after
disposal of the said settlement case and about
14(fourteen) years after the aforesaid gazette
notification inasmuch as time limit for filing
any settlement case provided in section 7 of
the Abandoned Buildings (Supplementary
Provisions) Ordinance, 1985 was only 108 days.
The Ordinance does not permit third party to
file review petition against the judgment and 8
order passed by the Court of Settlement after
disposal of the same.
It further appears that Hasibur Rahman
Chowdhury, filing Writ Petition No.6442 of
2008, challenged the execution of the sale
agreement and allotment of the disputed
property in favour of Raihana Shafi by the
Government. In this writ petition, he did not
pray for getting release of the property from
the “Ka” list of the abandoned properties. The
said writ petition was disposed of without any
specific result considering the prayer made in
the said writ petition. That is, Hasibur Rahman
Chwodhury accepted the judgment and order
passed in Writ Petition No.6442 of 2008.
Allottee Raihana Shafi preferred the aforesaid
two appeals against the judgment and order of
the High Court Division.
The only question which is to be
considered as to whether the High Court
Division rightly allowed Hasibur Rahman
Chowdhury to ventilate his grievance in the
Court of Settlement in the Settlement Case
filed by Abul Hashem and another or not.
The
law does not provide any provision to review a
judgment and order passed by the Court of 9
Settlement at the instance of third party whose
claimed, if any, is barred by the provision of
limitation. Section 10 of the Ordinance
specifically provides that except as otherwise
provided in the Ordinance, the provisions of
the Code of Civil Procedure shall not apply to
a Court of Settlement and Sub-section (2) of
Section 10 limits the area of the applicability
of the Code of Civil Procedure. The Court of
Settlement is not a Civil Court and its
authority is to determine as to whether the
disputed property is abandoned property or not.
The provisions of the Code of Civil Procedure
should be applicable in respect of summoning
and enforcing the attendance of any person and
examining him on oath; requiring the discovery
and production of any document; requiring
evidence on affidavit; requisitioning any
public record or copy there of from any office;
and issuing commissions for the examination of
witnesses or documents. In such view of the
matter a question stands on the way as to the
entertainability of the application under Order
1 Rule 10 of the Code of Civil Procedure for
adding the applicant as claimant to get release 10
of abandoned property filed by other party
making different pleading. Our view is “no”.
In the application for getting release of
disputed property filed by Abul Hashem and
another from the list of abandoned properties
there is little scope to get relief by Hasibur
Rahman since the source of claim made by them
in the said case is quite different. In that
application for getting release of the disputed
property it is difficult for Hasibur Rahman
Chowdhury to establish that he is a citizen of
Bangladesh and he was present in Bangladesh and
his whereabouts is known or he has not ceases
to occupy, supervise or manage in person of his
property. Without amending the contents of the
claim made by Abul Hashem and another in the
Settlement Case it is almost impossible to get
any relief in the said case. It is more
difficult for the reason that applicability of
the provisions of Civil Procedure Code is very
limited.
It appears from the papers produced by
Hasibur Rahman Chowdhury that he claimed that
sometimes he lived at Keknasar Khabari,
Sirajdikhan, sometimes at 28/2 Dakkhin
Mukdapara, sometimes at Jouripur Lane, Sutrapur 11
of Ward No.77, Dhaka which created a doubt
about his identity and his claim that earlier
any point of time he had been living in the
disputed property, that is, at House No.21,
Larmini Street, Wari, Sutrapur, Dhaka.
Considering the aforesaid facts and
circumstances, we find force in the submissions
made by of Mr. Probir Neogi and learned
Additional Attorney General.
Thus, both the appeals are allowed. The
judgment and order dated 19.05.2011 passed by
the High Court Division in Writ Petition
No.5864 of 2000 (heard analogously with Writ
Petition No.6442 of 2008) are set aside. The
Civil Petitions for Leave to Appeal Nos.1257-
1258 of 2023 are disposed of in the light of
judgment and order passed in appeals.
C.J.
J.
J.
The 15th May, 2023.
/words-2004/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice Md. Nuruzzaman
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NOS.11-15 OF 2008.
(From the judgment and order dated 29.03.2006 passed by the
High Court Division in W.P. Nos.3942 of 2005, 3943, 3944, 3945
and 5217 of 2005)
The Commissioner of Customs,
Customs Excise and VAT
Commissionerate Dhaka (South) Dhaka
and others.
Appellants.
(In all the appeals)
=Versus=
Syed Nurul Arefeen : Respondent.
(In C.A.No. 11-14/2008)
Md. Nasiruddin Respondent
(In C.A. No.15/2008)
For the appellants :
(In all the appeals)
Mr. A.M. Aminuddin, Attorney
General (with Ms. Abanti
Nurul A.A.G), instructed by
Mr. Haridas Paul, Advocate-
on-Record.
For the Respondent :
(In all the appeals)
Mr. A.F. Hassan Ariff, Senior
Advocate (with Mr. Zakir
Hossain Munshi, Advocate)
instructed by Mr. Syed
Mahbubar Rahman, Advocate-on-
Record.
Date of hearing : 18.10.2022.
Date of judgment : 19-10-2022
J U D G M E N T
Hasan Foez Siddique,C.J: These five appeals
are directed against the judgment and order
dated 29.03.2006 passed by the High Court
Division in Writ Petition Nos.3942,3943, 3944,
3945 and 5217 of 2005 making all the Rules 2
absolute. Points for determination of all
matters are identical.
The relevant facts of writ petition
No.3942 of 2005,in short, are that the writ
petitioner has been running his business
concern in the name and style of M/S. Solar
Trading Corporation. His business is for
importing automobile, tyres, tubes and flaps
etc. He is a VAT assesse and has been paying
VAT duly. In course of business, the writ-
petitioner imported his commodities in 2003 by
different letters of credit and after arrival
of the goods he got release of the same on
paying the customs duties, VAT and other
charges leviable under the law and sold the
imported goods in the market on the basis of
retail price. The writ-petitioner received the
notice under the signature of writ respondent
No.1, Assistant Commissioner, Customs, Excise
and VAT, Sutrapur Division, Dhaka dated
08.05.2004 being No.4/VAT/Aum/Dabi/585 claiming
tk.54,82,648.00 as unpaid VAT which was
allegedly liable to be paid by the writ
petitioner at the sale/supply of his imported
goods in the market while selling the same on
the basis of retail price. The writ petitioner 3
denied to pay the alleged liability submitting
reply to the writ-respondent No.2 on
20.05.2004. Thereafter, writ respondent No.2
blocked the BIN number of the writ petitioner
so the writ petitioner could not release
imported goods. In such compelling
circumstances, the writ-petitioner paid
tk.2,00,000.00 on 02.08.2004 through challan as
part payment against the said demand dated
12.05.2004 to avoid loss, demurrage and bank
interest. Consequently, his BIN number was
restored. The writ-respondent No.2 on
21.08.2004, issued another demand notice
demanding tk.57,56,069.57 which includes the
demand earlier dated 08.05.2004 followed by
reminder letter dated 27.06.2004. Writ-
respondent No.2, on 28.12.2004, issued another
demand notice claiming an amount of
tk.44,68,631.00 showing the same as due VAT
from financial year 2001 to 2004 which covered
the period from 2001, which was included in the
earlier demand notice dated 08.05.2004, upto
the 30th June, 2004. The writ petitioner ’s BIN
was again locked. Thereafter, the writ-
petitioner again compelled to deposit
tk.13,00,000/- as part payment against the said 4
demand to avoid loss, demurrage and bank
interest. After so payment his BIN number was
again restored. The writ-petitioner claiming
the demand as false filed an application to the
writ-respondent No.2 praying for refund of the
said amounts at tk.2,00,000.00 and
tk.13,00,000.00 but did not get any result.
Thereafter, writ-respondent No.2 on 30.03.2005
again issued another demand notice claiming
tk.69,62,012.00 as unpaid VAT for the period
from July, 2000 to June, 2004 which also
includes the earlier demand excluding the paid
amount of tk.15,00,000.00 as aforesaid. The
writ-respondent No.2 on 26.05.2005 again issued
another demand amount to tk.3,66,721.95 as
unpaid VAT for the period from July, 2000 to
August, 2000. Thus, the writ-petitioner
challenged the said demands.
In Writ Petition No.5217 of 2005 the writ
petitioner, Md. Nasiruddin, alleged that he is
a regular importer of Sugar classified under
H.S. Code No.170.11.00; Sodium Carbonate
classified under H.S. Code No.2836.20.00; Milk
Powder classified under H.S. Code
No.04022.21.20; Wood classified under H.S. Code
No.4403.49.00; Rice classified under H.S. Code 5
No.1006.20.00; Resin classified under H.S. Code
No.3907.60.00; Dal Dunpeas etc. He is a whole
seller of the aforesaid goods in the local
market. The writ-petitioner imported the said
goods lastly in the month of September, 2002 to
October, 2005 and got release of those goods
after paying Customs duties, Excise and VAT and
paid other charges as applicable in law and
sold the goods in the market on the basis of
retail price. The writ-petitioner received a
demand notice No.01 of 2005 dated 14.05.2005
issued by writ-respondent No.5 claiming an
alleged unpaid VAT amounting to tk.3,42,653.50.
The writ-petitioner, protesting the said
demand, submitted written representation on
11.06.2005 to the writ-respondent No.5 and
prayed for withdrawal of the notice. The writ-
respondent No.5 heard the writ-petitioner but
issued final demand notice being No.01 of 2005
dated 05.07.2005 modifying the earlier demanded
amount from tk.3,42,633.50 to tk.3,29,12,147.00
under section 5(2) and 5(4) of the VAT Act,
read with the provision of SRO No.143 and 144
dated 07.06.2001 without considering the
objection raised by the writ-petitioner. Thus,
the writ petitioner, challenging the said 6
demand notice, filed this writ petition. Facts
of all the writ petitions are almost identical.
The High Court Division made all the Rules
absolute. Against which, the appellants have
preferred these five different appeals in this
Division upon getting leave.
Mr. A.M. Amin Uddin, learned Attorney
General, appearing for the appellants, submits
that the instant writ petitions were not at all
maintainable in view of the statutory provision
of preferring appeal against the impugned order
made by the Assistant Commissioner of Customs,
Excise and VAT Commissionerate, the High Court
Division erred in law in entertaining the
instant writ petitions which has a caused total
failure of justice. In support of his
submissions, learned Attorney General cited a
recent decision of this Division dated
04.04.2022 passed in Civil Petition for Leave
to Appeal No.140 of 2019.
Mr.A.F. Hassan Ariff, learned Senior
Advocate appearing for the writ petitioner-
respondents in all the appeals in his
submissions contended that since the Assistant
Commissioner of Customs, Excise and VAT while
issuing the impugned demand the committed gross 7
illegality, the High Court Division rightly
entertain the writ petitions.
Recently, this Division in Civil Petition
for Leave to Appeal No.140 of 2019 has made the
following observations:
“Our apex court in the case of TaeHung
Packaging (BD) Limited and others Vs. Bangladesh
and others, reported in 18 BLC (AD) (2013) 144,
held:
“When the question of
maintainability of a writ petition
is raised by the contesting
respondents, it is the first and
foremost duty of the learned judges
to decide the said question first.
If the writ petitions are found not
maintainable, then it will be sheer
wastage of court’s valuable time to
consider and discuss the merit of
the case.”
Section 42 of the VAT Act provides forum for
statutory appeal which runs as follows:
42| Avcxj- (1) ÔÔ‡h †Kvb g~j¨ ms‡hvRb Ki Kg©KZ©v ev †h †Kvb
e¨w³ g~j¨ ms‡hvRb Ki Kg©KZ©vi GB AvBb ev †Kvb wewai Aaxb
cÖ`Ë †Kvb wm×všÍ ev Av‡`k Øviv msÿzä nB‡j wZwb D³ wm×všÍ ev
Av‡`‡ki weiæ‡×, c‡Y¨i mieivn ev cÖ`Ë †mevi †ÿ‡Î aviv 56 Gi
Aaxb cÖ`Ë †Kvb AvUK ev weµq Av‡`k A_ev cY¨ Avg`vwbi †ÿ‡Î
Customs Act Gi section 82 ev section
98 Gi Aaxb †Kvb Av‡`k e¨ZxZ, D³ wm×všÍ ev [Av‡`k cÖ`v‡bi ev,
†ÿÎgZ, Av‡`k Rvwii] [beŸB w`‡bi] g‡a¨,
(K) D³ wm×všÍ ev Av‡`k AwZwi³ Kwgkbvi ev Zwbœ‡¤œi †Kvb
g~j¨ ms‡hvRb Ki Kg©KZ©v KZ…©K cÖ`Ë nBqv _vwK‡j,
Kwgkbvi (Avwcj) Gi wbKU; 8
(L) D³ wm×všÍ ev Av‡`k Kwgkbvi, Kwgkbvi (Avwcj) ev Zuvnvi
mggh©v`vi †Kvb g~j¨ ms‡hvRb Ki Kg©KZ©v KZ…©K cÖ`Ë nBqv
_vwK‡j, Customs Act Gi section 196
Gi Aaxb MwVZ [Customs, Excise and
g~j¨ ms‡hvRb Ki Appellate Tribunal,
AZ:ci Appellate Tribunal ewjqv
DwjøwLZ, Gi wbKU; Ges
(M) D³ wm×všÍ ev Av‡`k Appellate Tribunal
KZ…©K cÖ`Ë nBqv _vwK‡j, evsjv‡`k mycÖxg †Kv‡U©i nvB‡KvU©
wefv‡Mi wbKU;]
Avwcj Kwi‡Z cvwi‡eb|
............................................................
............................................................
(2) hw` †Kvb e¨w³ †Kvb cY¨ ev †mevi Dci cÖ‡`q g~j¨ ms‡hvRb K‡ii
`vex m¤úwK©Z A_e v GB AvB‡bi Aaxb Av‡ivwcZ †Kvb A_©`Û
m¤úwK©Z †Kvb wm×všÍ ev Av‡`‡ki weiæ‡× Dc -aviv (1) Gi Aaxb
Avwcj Kivi B”Qv K‡ib, Zvnv nB‡j Zvnv‡K, Zvnvi Avwcj `v‡qi
Kivi Kv‡j [AvwcjwU-
[(K) Kwgkbvi (Avwcj) Gi wbKU `v‡qi Kiv nB‡j, `vexK…Z Ki
Gi `k kZvsk ev `vexK…Z Ki bv _vwK‡j Av‡ivwcZ A_©`‡Ûi
`k kZvsk]; [Ges]
(L) Kwgkbvi ev Zuvnvi mggh©v`vi †Kv‡bv g~j¨ ms‡hvRb Ki
Kg©KZ©vi Av‡`‡ki weiæ‡× Appellate
Tribunal G `v‡qi Kiv nB‡j, [`vexK…Z Ki Gi `k
kZvsk ev `vexK…Z Ki bv _vwK‡j Av‡ivwcZ A_©`‡Ûi `k
kZvsk] ;Ó
From the above provision of law it is clear
that any person aggrieved by the decision or
order passed by the Commissioner, Additional
Commissioner or any VAT Official lower in the
rank of the Commissioner or Additional
Commissioner can prefer appeal to the forum
prescribed.
In the instant case the writ-petitioner
impugned adjudication order dated 15.08.2007
passed by the writ-respondent no.2 Assistant
Commissioner, Customs, Excise and VAT Division 9
and other impugned orders passed by other
officials are appealable order under section
42(1)(Ka) of the VAT Act and section 42(2)(Ka)
mandates that 10% of the demanded VAT is to be
deposited at the time of filing of the appeal.
When there is a statutory provision to avail
the forum of appeal against an adjudication
order passed by the concern VAT Official then
the judicial review under Article 102(2) of the
constitution bypassing the appellate forum
provided under the law is not maintainable.
In view of the time frame prescribed by
section 42(4) of the VAT Act it cannot be said
that the remedy under section 42 of the Act is
not efficacious.
The respondent had an adequate remedy under
the VAT Act which he could avail of
. The
respondent did not avail the appellate forum
under the statute which was competent to decide
all questions of fact and law.
It is pertinent to mention here that Clause
(2) of Article 102 of our Constitution empowers
the High Court Division to interfere with any
proceeding if satisfied that there is ‘no other
equally efficacious remedy is provided by law.’
Though Article 226 of the Constitution of
India provides no such restrictions for the High
Courts in India to invoke writ jurisdiction even
in presence of equally efficacious remedy in any
case of violation of fundamental rights and the
Supreme Court of India has also been given
similar power with the exception that under
Article 32 the sole object is the enforcement of
the fundamental rights guaranteed by the
Constitution whereas, under Article 226 of the
High Courts have been invested with a wider 10
power relating to the enforcement of fundamental
rights as well as ordinary legal rights, still
Indian Supreme Court is very cautious in
exercising the right where there is an
alternative remedy.
In the case of Champalal Binani Vs. the
Commissioner of Income Tax, West Bengal &
others, reported in AIR 1970(SC)645, the Indian
Supreme Court observed that:
“Where the aggrieved party has an
alternative remedy the High Court
would be slow to entertain a
petition challenging an order of a
taxing authority which is ex-facie
with jurisdiction. A petition for a
writ of certiorari may lie to the
High Court, where the order is on
the face of it erroneous or raises
question of jurisdiction or of
infringement of fundamental rights
of the petition.”
From the reasons stated above
, we are of the
view that the writ petitions were not
entertainable without exhausting the statutory
forum of appeal provides under section 42 of the
VAT Act.
It is true that there is no absolute Rule of
law barring to file writ petition challenging
the impugned orders but this Division
consistently deprecate the practice of filing
writ petition in the High Court Division where
an alternative remedy has been provided under
the relevant statute. In the case of Harbanslal 11
Sahnia V. Indian Oil Corp. Ltd., (2003) 2 SCC
107 it was observed by the Supreme Court of
India that High Court may exercise its writ
jurisdiction in at least three contingencies:
(1) Where writ petition seeks enforcement of
any fundamental rights; (II) Where there is
failure of principles of natural justice; or
(III) Where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. In the instant cases, since the
statute provided efficacious alternative remedy
to the aggrieved persons and Statute itself
contains a mechanism for redressal of grievance
and in the writ petitioners the writ petitions
did not raise any point stated above, we are of
the view that writ petitioners should avail the
statutory remedy provided in the statute.
In view of the aforesaid recent decision
of this Division and discussions made above and
since we have already decided the issued raised
by the learned Attorney General, it would be
unjust to reopen the same again. The writ
petitioners may prefer appeal before the
appropriate authority and they may consider the
prayer for condonation of delay if the same is
so filed. 12
With the observations made above, all the
appeals are allowed. The judgment and order
dated 29.03.2006 passed by the High Court
Division in Writ Petition Nos.3942 of 2005,
heard analogously with Writ Petition Nos.3943,
3944, 3945 and 5217 of 2005 are hereby set
aside.
C.J.
J.
J.
J.
The 19th October, 2022
/words-2243/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice Jahangir Hossain
CIVIL PETITION FOR LEAVE TO APPEAL NO.2419 OF 2019
(From the judgment and order dated 18.02.2019 passed by the High Court Division in Writ Petition
No.609 of 2019)
Md. Taherul Islam (Tawhid) ……..….Petitioner
-Versus-
The Speaker Bangladesh Jatiya Sangsad
and others
..…..…Respondents
For the petitioner : Mr. A.M. Mahbub Uddin, senior Advocate,
instructed by Mr. Md. Taufique Hossain,
Advocate-on-Record.
For the respondents :
Mr. A.M. Amin Uddin, Attorney General
with Mr. Sk. Md. Morshed, Additional
Attorney General, Mr. Mohammad Mehedi
Hasan Chowdhury, Additional Attorney
General, Mr. Mohammad Saiful Alam,
Assistant Attorney General and Mr. Sayem
Mohammad Murad, Assistant Attorney
General, instructed by Mr. Haridas Paul,
Advocate-on-Record.
Date of hearing
and judgment
:
]]]]]]]
The 01st day of August, 2023
JUDGMENT
Obaidul Hassan, J. This Civil Petition for Leave to Appeal (CPLA) is
directed against the judgment and order dated 18.02.2019 passed by
the High Court Division in Writ Petition No.609 of 2019 summarily
rejecting the same. The petitioner filed the aforesaid Writ Petition
challenging the holding of office of the Members of Parliament (MPs)
by the respondents No.5-294 having taken their oaths in violation of
=2=
Article 123(3) read with Article 148(3) and 72(3) of the Constitution of
the Peoples’ Republic of Bangladesh.
The petitioner filed the aforesaid Writ Petition contending, inter
alia, that 10th National Parliamentary Election was held on 05.01.2014
and the MPs elected in the said election took their oaths on 09.01.2014
after the publication of election result in the official gazette and
subsequently cabinet was formed on 12.01.2014. The first meeting of
the 10th National Parliament was held on 29.01.2014 and as per
Article 72(3) of the Constitution, the tenure of the 10th National
Parliament expired on 28.01.2019 after completion of five years term
from the date of first meeting. The official website of Bangladesh
Jatiya Sangshad also displays that the first meeting of the 10th
National Parliament was held on 29.01.2014. The election of the 11th
National Parliament was held on 30.12.2018 under the supervision of
the Election Commission in 299 constituencies. In compliance with
Article 19(3) of the Representation of the People’s Order, 1972 the
Election Commission declared the result of the returned candidates
in the said election by gazette notification on 01.01.2019. Although
Article 39(4) of the Constitution does not provide for any time limit to
publish such gazette, the oaths of the newly elected MPs were
administered at 11:00 a.m. on 03.01.2019 in a ceremonial manner and
subsequently, on the same day the Hon’ble President expressed his
decision to appoint Sheikh Hasina, MP as the Prime Minister of
Bangladesh due to her commanding the support of the majority of
=3=
members and invited her to form cabinet under her leadership.
Thereafter, on 07.01.2019 the President appointed Sheikh Hasina, MP
as Prime Minister by official gazette notification. On the same day
another gazette was published pursuant to Article 56(ii) of the
Constitution and Rule 3(iv) of the Rules of Business, 1996 announcing
the names of the Ministers, State Ministers and Deputy Ministers.
Accordingly, they took oaths as Ministers, State Ministers and
Deputy Ministers on 07.01.2019. The first session of the 11th National
Parliament (RvZxq msm`) was held on 30.01.2019.
According to Article 148(3) of the Constitution, the persons,
who took oath on 03.01.2019 as members of Parliament, by virtue of
taking oath, had already assumed office as members of Parliament.
As such, they took the oath and assumed their office as MPs before
expiration of the term of the previous Parliament which is set to be
dissolved on 28.01.2019. Therefore, the day they took oaths, there
were about six hundred members of Parliament, which is clearly in
contradiction with the provisions of the Constitution and as such
they cannot remain in office as members of Parliament.
Neither the Constitution nor the RPO put any time limit within
which the publication of the returned candidates must be made.
According to Article 39(4) of the Representation of the People’s
Order, 1972 the Election Commission shall have to publish the names
of the retuned candidates after holding National Parliament Election
although there is no provision requiring to publish the names of the
=4=
returned candidates within any specified time. But the Election
Commission hurriedly published the results only two days after the
election. It is also contended that since the cabinet was formed even
before the first meeting of the 11th National Parliament, the MPs who
took oath as ministers also committed gross illegality in violation of
the Constitution. Accordingly, a Rule was sought to issue against the
respondents by the High Court Division in the form of quo warranto
calling upon the said MPs, as to under what capacity they are
holding such office of the members of Parliament in particular, when
they entered office when the previous MPs were also existing in the
said office as members of Parliament being the same is violative of
Article 123(3) read with Articles 148(3) and 72(3) of the Constitution.
Before issuing Rule the High Court Division heard the learned
Attorney General since the writ petitioner raised a serious
constitutional issue. Upon hearing both sides the High Court
Division was pleased to reject the Writ Petition being No.609 of 2019
summarily by impugned judgment and order dated 18.02.2019.
Being aggrieved with the impugned judgment and order dated
18.02.2019 the petitioner preferred the instant Civil Petition for Leave
to Appeal.
Mr. A.M. Mahbub Uddin, learned senior Counsel appearing on
behalf of the petitioner taking us through the judgment and order
dated 18.02.2019 passed by the High Court Division in Writ Petition
=5=
No.609 of 2019 as well as other materials on record contends that the
High Court Division erred in law in totally misconceiving the case of
the petitioner upon misreading the constitutional provisions
enshrined in Article 148(3) in holding that a member of Parliament
assumes office on the day of the first meeting of Parliament. The
learned senior Counsel contends next that High Court Division relied
on a misconceived understanding of the concept of ‘Legal Fiction’ to
hold that clear language of Article 148(3) to the effect that a person
assumed office after taking oath is not binding on a person by virtue
of the principle of ‘Legal Fiction’. The learned senior counsel submits
next that according to Article 123(3) the respondents, who have been
elected in the 11th National Parliamentary Election cannot assume
office as MPS before expiration of the term of the previous Parliament
which was scheduled to expire on 28th January 2019 but by taking
oaths before the said period the respondents assumed the said office
which violated the provision of Article 123(3), but the High Court
Division without considering the said issue most illegally passed the
impugned judgment and order. The learned senior Counsel argues
next that the High Court Division failed to appreciate that 10th
Parliament first sat on 29.01.2014 and as per Article 72(3) of the
Constitution the term of the 10th Parliament existed until 28.01.2019
but the respondents took oath and assumed office as MPs which was
not only a nullity in law, but an absurdity as the MPs from the
previous Parliament were still holding office, meaning that the
=6=
number of MPs at the same time in office was higher than 345 as
stipulated in Article 65(3A) of the Constitution.
Per contra, Mr. A.M. Amin Uddin, learned Attorney General
appearing along with Mr. Sk. Md. Morshed, learned Additional
Attorney General, Mr. Mohammad Mehedi Hasan Chowdhury,
learned Additional Attorney General, Mr. Mohammad Saiful Alam,
learned Assistant Attorney General and Mr. Sayem Mohammad
Murad, learned Assistant Attorney General appearing for the
respondents advance their submissions supporting the judgment of
the High Court Division and vehemently oppose the prayer of the
petitioners for granting of leave. The learned Attorney General along
with his accompanying Counsels contend that it has not been
challenged in the Writ Petition that the said MPs had been elected
illegally in the 11th National Parliamentary Election or they were
disqualified to become for any reason to become Members of
Parliament. Therefore, in so far as the Writ Petition is concerned, it
has only challenged the oath taking by the said MPs for which the
said MPs had nothing to do since the oath taking ceremony is the
matter of Parliament Secretariat. The learned Counsels for the
respondents by referring the oath of MP stated in the 3rd Schedule of
the Constitution, argue that the form of oath of MPs is quite unique
and not similar to other oaths mentioned in the 3rd Schedule of the
Constitution. The framers of the Constitution aptly incorporated the
words “the duties upon which I am about to enter” in the form of
=7=
oath of MPs. Drawing a subtle distinction between the words stated
in the form of oath of MPs and those of other forms of oaths the
learned Counsel for the respondents submit that the oath taken by
the MPs categorically indicate that upon taking oath the MPs do not
become MPs in reality rather they fictionally assume office of
Members of Parliament for certain purpose. According to the
provisions of the Constitution an MP will not assume office in reality
until he sits in the Parliament and only when the first meeting of the
Parliament takes place, an elected MP may assume office in reality.
The learned Counsels submit next that the members of Parliament do
not assume office in reality whenever they take oath, rather the
Constitution has created a legal fiction as regards assumption of
office by the Members of Parliament upon taking oath only for the
purpose of forming a government or cabinet so that there is no break
in the running of the government in the country.
We have perused the impugned judgment and order dated
18.02.2019 passed by the High Court Division in Writ Petition No.609
of 2019, considered the submissions of the learned Counsels of the
both sides and gone through the other materials on record.
It is admitted that the newly elected Members of Parliament in
the 11th Parliamentary Election took their oaths on 03.01.2019 and the
cabinet was formed on 07.01.2019 while the term of the 10th
Parliament expired on 28.01.2019. The petitioner claims that taking
oath during the validity period of earlier parliament by members of
=8=
Parliament in the 11th Parliamentary Election is violative of proviso to
Article 123(3) read with Articles 148(3) and 72(3) of the Constitution.
It is advantageous to know Article 123(3), Article 148(3) and
72(3) of the Constitution.
Article 123(3) lays down that-
“(1)....................................................................................
(2).......................................................................................
(3) A general election of the members of Parliament shall
be held-
(a) in the case of a dissolution by reason of the
expiration of its term, within the period of ninety
days preceding such dissolution; and
(b) in the case of a dissolution otherwise than by
reason of such expiration, within ninety days after
such dissolution:
Provided that the persons elected at a general election
under sub-clause (a) shall not assume office as members
of Parliament except after the expiration of the term
referred to therein.
...........................................................................................
Article 148 provides in the following-
“(1).....................................................................................
(2).......................................................................................
(2A) If, within three days next after publication through
official Gazette of the result of a general election of
members of Parliament under clause (3) of article 123, the
person specified under the Constitution for the purpose
or such other person designated by that person for the
purpose, is unable to, or does not, administer oath to the
=9=
newly elected members of Parliament, on any account,
the Chief Election Commissioner shall administer such
oath within three days next thereafter, as if, he is the
person specified under the Constitution for the purpose.
(3) Where under this Constitution a person is required to
make an oath before he enters upon an office he shall be
deemed to have entered upon the office immediately after
he makes the oath.
Article 72(3) states that-
“(1)....................................................................................
(2)....................................................................................
(3) Unless sooner dissolved by the President, Parliament
shall stand dissolved on the expiration of the period of
five years from the date of its first meeting:
...........................................................................................”
(underlines supplied by us)
From the above constitutional provisions, it appears that
according to Article 123(3) the general election of the members of
Parliament shall be held in case of dissolution of Parliament by
reason of the expiration of its term, within the period of ninety days
preceding such dissolution. Proviso to Article 123(3) puts an embargo
on the members of Parliament so elected to assume the office as
members of Parliament before expiry of the term of earlier
Parliament. Article 148(3) provides that a member of Parliament shall
be deemed to have entered upon the office immediately after taking
oath. Article 148(2A) lays down that the oath of the newly elected
members of Parliament has to be administered within three days
after the publication of the result of general election in the official
=10=
gazette. Article 72(3) provides that unless dissolved earlier by the
President, the Parliament shall stand dissolved after expiry of five
years from the date of its first meeting.
Admittedly the 1st meeting of the 10th Parliament was held on
29.01.2014 and accordingly the term of the said Parliament was
scheduled to expire on 28.01.2019. It reveals from the record that the
newly elected members of Parliament in 11th Parliament took oath on
03.01.2019. The petitioner asserts that the members of Parliament
elected in the 11th Parliament entered upon their office as members of
Parliament immediately after taking oath on 03.01.2019 while the
term of 10th Parliament was still in force which contravenes the
constitutional provisions as enshrined in proviso to Article 123(3) of
the Constitution. To ascertain whether there was illegality or not in
holding the office by the members of 11th Parliament the High Court
Division discussed about the ‘deeming clause’ contemplated under
Article 148(3) of the Constitution. Now let us see what is ‘deeming
clause’.
The term ‘deem’ is derived from the old English word ‘domas’
which meant ‘judgment or law’. Webster’s Ninth New Collegiate
Dictionary provides the following meanings: ‘to come to think or
judge: consider; to have an opinion: believe.’
In Black's Law Dictionary, the word ‘deem’ has been defined in
the following way:
=11=
‘to treat (something) as if (1) it were really something else,
or (2) it had qualities that it does not have.’
Bennion Statutory Interpretation (3rd ed. 1997, p. 735), states:
‘Deeming provisions’- Acts often deem things to be what they are
not. In construing a deeming provision, it is necessary to bear in
mind the legislative purpose.
It is well settled position of law that a deeming provision is an
admission of the non-existence of the fact deemed. The Legislature is
competent to enact a deeming provision for the purpose of assuming
the existence of a fact which does not even exist. It means that the
Courts must assume that such a state of affairs exists as real, and
should imagine as real the consequences and incidents which
inevitably flow there from, and give effect to the same.
Mr. Mahmudul Islam in his book titled ‘Interpretation of
Statutes and Documents’ (First edition, 2009) at pg 87 writes as under-
“The legislature sometimes creates legal fiction by using
words which are called ‘deeming clause’. A legal fiction is
one which is not at actual reality, but the legislature
mandates and the courts accept it to be a reality, though
in reality it does not exist. The effect of such deeming
clause is that a position which otherwise would not
obtain is deemed to obtain under the circumstances.”
He further states at pg. 88 that-
“The court has to determine the limits within which and
the purpose for which legislature has created the fiction
the court is to find out the limit of the legal fiction and not
to extend the frontier of the legal fiction.”
=12=
However, at pg. 89 he gave a clarification in the following way-
“However, in construing the deeming clause, it should
not be extended beyond the purpose for which it is
created or beyond the language of the section by which it
is created; it cannot be extended by importing another
fiction.”
The effect of such a deeming clause has been stated by Indian
Supreme Court in State of Bombay Vs. Pandurang Vinayak
Chaphalkar, AIR 1953 SC 244 as follows:
“When a statute enacts that something shall be deemed to
have been done, which in fact and truth was not done, the
court is entitled to ascertain for what purposes and
between what persons the statutory fiction is to be
resorted to and full effect must be given to the statutory
fiction and it should be carried to its logical conclusion.”
In the Bengal Immunity Company Limited Vs. The State of
Bihar and Ors., AIR 1955 SC 661 it has been observed by a Bench of
the Indian Supreme Court comprising of seven judges headed by the
then acting Chief Justice Sudhi Ranjan Das in the following-
“42. Legal fictions are created only for some definite
purpose......................................a legal fiction is to be
limited to the purpose for which it was created and
should not be extended beyond that legitimate field.”
It has been also observed in the case of Prakash H. Jain Vs.
Marie Fernandes, (2003) 8 SCC 431 that-
“12..............................it is by now well settled by
innumerable judgments of various courts including this
Court, that when a statute enacts that anything shall be
=13=
deemed to be some other thing the only meaning possible
is that whereas that the said thing is not in reality that
something, the legislative enactment requires it to be
treated as if it is so. Similarly, though full effect must be
given to the legal fiction, it should not be extended
beyond the purpose for which the fiction has been created
and all the more, when the deeming clause itself confines,
as in the present case, the creation of fiction for only a
limited purpose as indicated therein.”
Lastly, in the case of Pubali Bank Vs. The Chairman, First
Labour Court, Dhaka and another, reported in 44 DLR (1992) 40 this
Division comprising of four judges dealt with a question whether the
Labour Court, ‘deemed as a civil court’ it was decided that the
Labour Court acts as a civil court for limited purpose and it will not
exercise the powers like those given in Order IX or Order XXXIX Rule
1 of the Code of Civil Procedure which the civil court may exercise in
a suit.
In the case of Pubali Bank (supra) Justice Mustafa Kamal
observed in the following-
“26. The language employed in sub-section (2) of Section
36 has to be closely scrutinised. A Labour Court is not a
Civil Court at all. It is only by a legal fiction or a statutory
hypothesis that it is to be treated as a Civil Court.
27. When the legislature enacts a “deeming” clause, the
correct way to interpret the same is to find out for what
purpose and upto what extent the legal fiction has-been
created. It is the function of the Court to find out the
limitation of the legal fiction, to delimit its boundaries
=14=
and not to extend the frontier of legal fiction beyond what
has been provided in the statute. As was held in the case
of Radha Kissen Chamria and others Vs. Durga Prasad
Chamria, AIR 1940 PC 167, “As the analogy only arises by
legal fiction, it must be limited to the purposes enacted by
the context and cannot be given larger effect.” Also it has
been held in the case of Commissioner of Income Tax Vs.
Vadilal Lallu Bhai. AIR 1973 (SC) 1016. “Legal fictions are
only for definite purposes and they are limited to the
purpose for which they are created and should not be
extended beyond their legitimate field.”
In the case of Radha Kissen Chamaria vs Durga Prashad
Chamaria, reported in AIR 1940 PC 167, it has been dealt with
“deeming clause” mentioned in Section 19(3) of the Bengal Public
Demands Recovery Act, 1913, which provided that a certificate
holder shall be deemed to be the representative of the holder of the
attached decree and to be entitled to execute such attached decree in
any manner lawful for the holder thereof. While discussing about the
“deeming clause” under the aforesaid Section the Privy Council
observed that the legal fiction created thereby was for a limited
purpose of enabling the certificate holder to execute the decree and to
satisfy his own claim out of the proceeds of such execution, but he
was not in a position of an assignee of the decree so as to acquire all
the rights of the original decree holder in the decree.
From the above it is well settled that the legal fiction must be
extended to its logical conclusion and at the same time it should be
construed strictly. The High Court Division in the impugned
=15=
judgment observed that a deeming clause in the Constitution, has to
be interpreted taking into consideration of various factors depending
on the backdrop due to which the same was incorporated, legislative
intent for incorporation of such clause vis a vis the manner of
application of such deeming clause. We endorse the above
observation of the High court Division.
Adverting to the present case we need to examine the
provisions of the Constitution to retrieve the latent intention for
purpose of the incorporating the “deeming clause” under Article 148
(3) of the Constitution. Part-V of our Constitution deals with the
provisions relating to legislature. Article 65 of the Constitution
provides for a Parliament for Bangladesh to be known as the House
of Nation whereupon the legislative functions while Article 66
enumerates the qualifications and disqualifications for being member
of Parliament.
Article 72(2) lays down that the Parliament shall be summoned
to meet within thirty days after the declaration of the results of
polling at any general election of members of Parliament.
Accordingly, once gazette notification is published by the Election
Commission declaring the names of the returned candidates, the
Parliament has to resume its meeting within thirty days from the date
of publication of the result. Article 72(3) provides that the Parliament
shall stand dissolved on the expiry of the period of five years from
the date of its first meeting unless dissolved earlier by the President.
=16=
Article 74(1) states that in the first meeting of the Parliament, it shall
elect its Speaker and Deputy Speaker.
Now let us look into the provisions regarding the formation of
the government are subsumed under Chapter II of Part-IV of the
Constitution containing Articles 55-58. According to Article 55 there
shall be a cabinet for Bangladesh having the Prime Minister at its
head and all executive power of the republic shall be exercised by, or
on the authority of the Prime Minster. Article 56, enshrines the
provisions as to how the Ministers, State Ministers and Deputy
Ministers are appointed. Article 56(3) lays down that the President
shall appoint as Prime Minister the member of Parliament, who
appears to him to command the support of the majority of the
members of Parliament.
From the above it is abundantly clear that when the election to
the Parliamant was held and the names of returned candidates were
declared, it was incumbent upon the Hon’ble President of
Bangladesh to appoint a Prime Minister first, from among the elected
members of Parliament who appears to have commanded the
support of the majority members. Therefore, when an election to
national Parliament takes place and the names of the returned
candidates are declared, the framers of the Constitution incorporated
the provision of Article 56(3) for appointment of a member of
parliament as Prime Minister, to keep run the continuity of the
Government so that no break takes place the running of the
=17=
government. The said provision was embodied in the Constitution
even if the Parliament does not sit in its first meeting, there cannot be
any vacuum in the running of the government in the country.
Although there may be a gap between one parliament and another,
the continuity of the government cannot have any break, and even if
the Prime Minister becomes disqualified to continue as Prime
Minister, he or she will still continue under Article 57 unless and
until the next Prime Minister takes upon the office. The tenure of
other Ministers is also the same under Article 58 according to which
they will also continue to hold office until their successors enter upon
such office. What can be deduced from the foregoing discussion is
that the architect of our Constitution arranged its various provisions
with such a dexterity and placed each of its provision very neatly and
coherently so that there is no break in the continuity of the
government in any occasion.
Again, Article 123(3) enjoins the general election of the
members of Parliament to be held in case of dissolution of Parliament
by reason of the expiration of its term, within the period of ninety
days preceding such dissolution. Again, as per proviso to Article
123(3) the newly elected members of Parliament shall not assume the
office as members of Parliament before expiry of the term of earlier
Parliament. According to Article 148(1) a person elected or appointed
to any office mentioned in the Third Schedule shall before entering
upon the office make and subscribe an oath or affirmation in
=18=
accordance with that Schedule. Article 148(2A) was incorporated in
the Constitution through 14th Amendment to the Constitution which
states that the taking of oath or administering of oath must be done
within three days from publication of results of election in the official
gazette by the Election Commission and an additional three days
may be allotted to administer such oath to the members of the
Parliament, by the Chief Election Commissioner if for any reason the
person designated in the Constitution does not administer oath.
Article 148(3) lays down that a member of Parliament shall be
deemed to have entered upon the office immediately after taking
oath. It reveals from the above that the framers of the Constitution in
one place of the Constitution provided that the member of
Parliament shall not assume his office before the expiry of the term of
earlier Parliament while in another place an MP shall be deemed to
have assumed his office once he takes oath even before the first
meeting of parliament or before dissolution of the last Parliament. In
view of the above position of law we need to have a glimpse into the
form of oath taken by the member of Parliament.
The form of oath taken by the member of Parliament has been
incorporated in the 3rd Schedule under serial No. 5. The oath is as
follows-
“5. Member of Parliament.– An oath (or affirmation) in
the following forms shall be administered by the
Speaker– “I, ................................................., having been
elected a member of Parliament do solemnly swear (or
=19=
affirm) that I will faithfully discharge the duties upon
which I am about to enter according to law : That I will
bear true faith and allegiance to Bangladesh : And that I
will not allow my personal interest to influence the
discharge of my duties as a member of Parliament.”
It divulges from the above that unlike other oaths, the MPs take
oath to discharge their duties upon which they do not enter
immediately rather it denotes the duties upon which they are about
to enter in future.
That apart, petitioner in paragraph 4 of the Writ Petition stated
that though the first meeting of the 10th Parliament was held on
29.01.2014, the cabinet was formed before the said meeting, i.e. on
12.01.2014, and the MPs took oath even before i.e. on 09.01.2014. The
same happened in case of other parliamentary election of Bangladesh
and the 11th parliamentary election is no exception to that. Inasmuch
as once the names of elected members of Parliament returned by the
Election Commission in the official gazette, it becomes necessary for
them to take oath and this necessity arises because of the relevant
provisions of the Constitution in order to form a new government.
The intention of the legislature is transparent while going through
Article 56(3) of the Constitution whereby the President is required to
appoint a newly elected MP, who appears to have commanded
majority support of the members of parliament, as Prime Minister of
the country. Therefore, for such appointment of an MP as Prime
Minister, the first sitting of the Parliament is not necessary to be held.
=20=
Rather, it is the discretion of the Hon’ble President to appoint a
member as Prime Minister from among the elected members of
parliament commanding the support of the majority. In the given
circumstances, it is clear that latent intent of the legislature for
incorporating the deeming clause under Article 148(3) of the
Constitution is to maintain the continuity of the government.
Now, talking about the 11th Parliamentary election the newly
elected MPs took oath on 03.01.2019 and on the same day the
President realized that Sheikh Hasina, the newly elected MP in the
said election, was commanding the majority support of the elected
MPs and for such satisfaction of the president under the Constitution,
he is not required to wait until the first meeting of Parliament.
Therefore, the provision of Article 148(3) of the Constitution has been
incorporated to maintain continuity of running the government for
the best interest of democracy. In the 11th Parliament after being
appointed Prime Minister on 03.01.2019, she determined as to who
would be the Ministers, State Ministers and Deputy Ministers in her
cabinet and, accordingly such MPs and some non-MPs were also
appointed as Ministers, State Ministers and Deputy Ministers by the
President in accordance with the Constitution. It is manifest from the
above that “deeming clause” under Article 148(3) was incorporated
just to facilitate the continuity of the government. Though, upon
taking oath, the MPs in reality have not assumed office of members
of parliament, yet they have assumed office by way of legal fiction
=21=
created by the Constitution and that legal fiction must be interpreted
restricting the same to be used for the said purpose only. The
legislature deliberately created this legal fiction so that the next
executive government can be formed and appointed by the President.
The said intention of the legislature has been elucidated in Article
123(3) which states that member of Parliament shall not assume office
as members of parliament except after the expiration of the term of
the previous parliament. It denotes that the MPs who took oath even
before the first meeting of the Parliament shall not in fact or in reality
assume such office of members of parliament before expiration of the
tenure of the last parliament.
Admittedly, the MPs elected in the 11th parliamentary election
did not sit in the first meeting of the parliament before expiration of
the tenure of the last parliament. They sat in the first meeting of the
parliament on 30.01.2019 i.e. two days after the expiration of the
tenure of the 10th Parliament. Therefore, even though by way of legal
fiction they have in the meantime assumed office of members of
Parliament, in reality they have not assumed such office until and
unless the first meeting of the 11th Parliament was held. This being
the position, we do not find any substance in the submissions of the
learned advocate for the petitioner that on the day the MPs in the 11th
Parliament took oath, they assumed the office of MP and as such on
that day there were more than 600 MPs in the parliament. In the light
of the foregoing discussions we find that the High Court Division
=22=
rightly rejected the application filed under Article 102(2)(a)(ii)and
(b)(ii) of the Constitution of the People’s Republic of Bangladesh by
the petitioner in Writ Petition No.609 of 2019. We do not find any
reason to interfere with the observations of the High Court Division
rather we are fully in agreement with the same.
In the premises made above, we hold that the High Court
Division on proper appreciation of facts and law passed the
impugned judgment and order for which it does not warrant any
interference by this Division.
Accordingly, this Civil Petition must fail and as such the same
is dismissed.
C.J.
J.
J.
J.
J.
J.
J.
The 01st day of August, 2023
RRO/Total words-5,429(ihp)
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Abu Zafor Siddique
CIVIL APPEAL NO. 15 OF 2022
With Civil Petition for Leave to Appeal No.1732 of 2022.
(From the judgment and order dated 10.11.2016 pass ed by the
Appellate Division in C.P. No.1181/2014 & Order dat ed 24.05.2022
passed by the High Court Division in Writ Petition No.3697 of
2022)
Durnity Daman Commission, represented
by its Secretary. :
Appellant.
(In C.A. 15/2022)
Sariif Uddin Petitioner
(In C.P. 1732/2022)
=Versus=
Md. Ahsan Ali and others Respondents.
(In C.A. 15/2022)
Durnity Daman Commission, represented
by its Secretary and others :
Appellant.
(In C.P. 1732/2022)
For the Appellant :
(In C.A. 15/2022)
Mr. Md. Khurshid Alam Khan,
Senior Advocate, instructed
by Mrs.Sufia Khatun,
Advocate-on-Record.
For the petitioner :
(In C.P. 1732/2022)
Mr.
Salauddin Dolon,
Senior Advocate,
instructed by Mr. Md.
Taufique Hossain, Advocate-
on-Record.
For the Respondent No.1 :
(In C.A. 15/2022)
Mr.Madhumaloti Chowdhury
Barua, Advocate-on-Record.
For the Respondent No.3 :
(In C.A. 15/2022)
Mr.Sheikh Mohammad Morshed,
Additional Attorney General
(With Mr. Sayem Mohamm ad
Murad, Assistant Attorney
General, Mr. Mohammad Saiful
Alam, Assistant Attorney
General, & Ms. Farzana Rahman
Shampa, Assistant Attorney
General (appeared with the
leave of the Court).
Respondent No.2 :
(In C.A. 15/2022)
Mr.Sheikh Mohammad Morshed,
Additional Attorney General 2
(With Mr. Sayem Mohammad
Murad, Assistant Attorney
General, Mr. Mohammad Saiful
Alam, Assistant Attorney
General, & Ms. Farzana Rahman
Shampa, Assistant Attorney
General ( appeared with the
leave of the Court)
For Respondent No.1:
(C.P.No.1732/2022
Not represented.
Date of hearing : 02.03.2023.
Date of judgment : 16.03.2023.
JUDGMENT
Hasan Foez Siddique, C. J: The respondent No.1
in Civil Appeal No.15 of 2022 filed Writ
Petition No.1424 of 2011 in the High Court
Division, challenging the provision of the Rule
54(2) of the Anti Corruption Commission
(Employees) Service Rules, 2008 (hereinafter
referred to as “Service Rules”) as well as the
order of termination of the respondent No.1 from
his service, obtained Rule. The High Court
Division, by the impugned judgment and order
dated 27.10.2011, set aside the provision of
Rule 54(2) of the Service Rules upon making the
aforesaid Rule absolute.
In the order of termination of the writ
petitioner-respondent No.1 issued by the Anti
Corruption Commission communicated under Memo
No. Dudak/9-2009/Ga-1/Sangstapon/2999 dated
10.02.2011 it was stated as follows:
Ò`ybx©wZ `gb Kwgkb 3
cªavb Kvh©vjq
XvKv|
m¥viK bs-`y`K/9-2009/M-1/ms¯nvcb/2999 ZvwiLt 10 †deªæqvix 2011 wLªt
‡h‡nZz m¤úªwZ Avcwb Rbve †gvt Avnmvb Avjx, Dc-cwiPv jK, `ybx©wZ `gb
Kwgkb, cªavb Kvh©vjq, XvKv Awkó/PvKzix k„sLjv cwicš’x e¨envi Ges J×Ëc~Y© AvPiY
Z`ycwi AmsjMœ evK¨ e¨env‡ii gva¨‡g `ybx©wZ `gb Kwgkb I Kwgk‡bi Da©¦Zb Kg©KZ©v
m¤ú‡K© AmZ¨ I ev‡bvqvU e³e¨ w`‡q Kwgk‡bi ¯^vfvweK Kvh©µ‡g wek„sLjv m„wói †Póv
K‡i‡Qb;
‡h‡nZz Avcwb PvKzix k„sLjv cwicš’x Kvh©Kjv‡ci gva¨‡g Kwgk‡bi †Pqvig¨vb,
mwPe eive‡i mivmwi wewfbœ/wg_¨v `iLv¯Í w`‡q Kwgk‡bi Kg©KZ©v/Kg©Pvix‡`i ¯^vfvweK
Kvh©µg wewNœZ Ki‡Qb Ges †Kvb †Kvb Kg©KZ©v‡K †nq I jvwÂZ Ki‡Qb;
‡h‡nZz k„sLjv f½RwbZ Aciva msMV‡bi Kvi‡b Avcbvi weiæ ‡× wefvMxq
gvgjvq 1991 mv‡j Pvi eQi c‡`vbœwZ ¯nwMZ /e‡Üi Av‡`k KZ…©c¶ KZ…©K Aby‡gvw`Z
nq;
‡h‡nZz Avcbvi weiæ‡× PvKzix k„sLjv cwicš’x Kg©Kv‡Ûi R b¨ AZx‡Z PvKzix
wewag‡Z Avcbv‡K kvw¯— cª`vb Kiv n‡q‡Q Ges GKB Kvi‡b eZ©gv‡bI Avcbvi weiæ‡×
GKwU wefvMxq gvgjv Pjgvb _vKv m‡Z¡I Avcwb PvKzix k„sLj v cwicš’x Kvh©Kjvc
Ae¨vnZ †i‡L‡Qb;
‡h‡nZz Avcbvi G‡nb Kvh©µ‡g Kwgk‡bi fveg~wZ© webó nIqv i Ges Kwgk‡bi
¯^vfvweK Kvh©µg evavMª¯— nIqvi m¤¢vebv we`¨gvb Ges †h‡nZz Kwgk‡bi Ab¨ †Kvb
Kg©KZ©v/ Kg©Pvix‡K G‡nb k„sLjv cwicš’x Kvh©µg DrmvwnZ Ki‡Z cv‡i;
‡m‡nZz `ybx©wZ `gb Kwgkb Gi ¯^vfvweK Kvh©µg Ae¨vnZ I mybvg A¶zbœ ivLvi
¯^v‡_© `ybx©wZ `gb Kwgkb (Kg©Pvix) PvKzix wewagvjv 2008 Gi wewa 54(2) g‡Z Avcwb
†gvt Avnmvb Avjx, Dc-cwiPvjK, `ybx©wZ `gb Kwgkb, cªav b Kvh©vjq, XvKv‡K beŸB 4
w`‡bi †eZb bM` cwi‡kv‡ai Av‡`kmn `ybx©wZ `gb Kwgkb G i PvKzix n‡Z Acmvib
Kiv n‡jv|
D‡jøwLZ beŸB w`‡bi †eZb bM‡` `ybx©wZ `gb Kwgkb, cªav b Kvh©vj‡qi wnmve
kvLv n‡Z Mªn‡bi Rb¨ Avcbv‡K wb‡`©k †`qv n‡jv|
¯^vt AcvV¨
‡Mvjvg ingvb
‡Pqvig¨vb|Ó
The respondent No.1 challenged the vires of
the provision of Rule 54(2) of the Services
Rules as well as the order of termination.
It appears from the aforesaid order that the
same was not an order of termination simpliciter
but termination with stigma. It has been
observed by this Court that the order of
termination with stigma should not be legally
approved. Termination may be innocuous or may be
a camouflage for dismissal. This could be
simple. It may not be illegal to give effect to
an order of termination. But if a punishment is
veiled as termination, that has got to be
resisted. Consequently, the High Court Division
in the aforesaid writ petition made the Rule
absolute and declared the order of termination
void. It also set aside the provision of Rule
54(2) of the Service Rules. Against which, the
Durnity Daman Commission (the Commission) filed
civil petition for leave to appeal in this 5
Division which was dismissed by an order dated
10.11.2016 in Civil Petition for Leave to Appeal
No.1181 of 2014. The Commission, then filed a
Review Petition in this Division and obtained
leave.
Mr. Md. Khurshid Alam Khan, learned Senior
Counsel appearing on behalf of the appellant,
submits that the High Court Division erred in
law in setting aside the provision of Rule 54(2)
of the Service Rules, inasmuch as the said
provision has been incorporated with the
definite view to control, manage, supervise and
to maintain the discipline and order in the
service of the Commission and, thus, the same is
an administrative manoeuvre and activity of the
Commission, which comes within the absolute
domain, power function and authority of the
Commission and, therefore, cannot be subjected
to judicial review. He submits that High Court
Division has erroneously set aside the provision
of Rule 54(2) of the Service Rules, which is
liable to be set aside.
Mr. Sheikh Mohammad Morshed, learned
Additional Attorney General appearing for the
respondent No.3 in his submission, supported the
appellant’s contention. He adds that the High
Court Division declared the provision of Rule 6
54(2) of the Service Rules, void (it was written
as “set aside”) holding that the said provision
is arbitrary, unreasonable and contrary to the
provision of audi alteram partem but it failed
to draw any definite conclusion as to whether
the said provision is inconsistent with the any
provision of Constitution or fundamental rights
or the parent law. He submits that in almost all
the Service Rules of the employees in the
subcontinent such termination clause has been
provided and such provision may be harsh but
harshness cannot be a ground to declare a law
ultra vires and void. He further submits that it
has been observed in the several cases by the
Apex Court that if relief can be provided to an
aggrieved person without declaring an enactment
void that would be more acceptable. He, lastly,
submits that the instant case the High Court
Division declared the order of termination void
and, thereby, provided relief to the respondent
No.1 but it also declared the law itself void
thereby deviated from the spirit of the
observation made by the Apex Court.
Mr. Salahuddin Dolon, learned Senior Counsel
appearing for the petitioner of Civil Petition
for Leave to Appeal No.1732 of 2022, submits
that the provision of Rule 54(2) of the Service 7
Rules, is inconsistent with the fundamental
rights and the High Court Division rightly held
that such provision is unreasonable, arbitrary
and violative of the principle of audi alteram
partem. He further submits that in different
cases the termination clause of Service Rules
has been termed as Henry VIII clause and the
authority usually excised such unlimited power
in a discriminatory manner, the High Court
Division rightly declared such provision void.
One Sarif Uddin, petitioner of Civil
Petition for Leave to Appeal No.1732 of 2022 has
preferred the said civil petition against the
order passed by the High Court Division in Writ
Petition No.3697 of 2022 in which, it stayed the
further proceeding of the said writ petition
till disposal of the Civil Appeal No.15 of 2022.
Since the Commission did not get leave
against the judgment and order of the High Court
Division so far the same relates to the order of
termination issued against respondent Md. Ahsan
Ali of Civil Appeal No.15 of 2022 and that the
learned Advocate for the Commission did not make
any submission as to the legality and propriety
of the order of termination itself rather the
learned Advocate for the Commission as well as
the learned Additional Attorney General in 8
their submissions mainly confined their
submissions as to the constitutionality of the
provision of Rule 54(2) of the Service Rules, we
shall confine ourself in discussing and
considering the question as to the
constitutionality of the provision of 54(2) of
the Service Rules and conclusion arrived at by
the High Court Division in that regard only. It
is relevant here to quote the provision of Rule
54(2) of the Service Rules, the contents of
which are as follows:
Ò54| PvKyix Aemvb|-(1) Dchy³ KZ…©c¶ †Kvb KviY cª`k©b b v Kwiqv Ges
GK gv‡mi †bvwUk cª`vb Kwiqv A_ev †bvwU‡ki cwie‡Z© G K gv‡mi †eZb
cª`vb Kwiqv †Kvb wk¶vbwe‡mi PvKzixi Aemvb NUvB‡Z c vwi‡e Ges
wk¶vbwem Zvnvi PvKzix Aemv‡bi Kvi‡Y †Kvb cªKvi ¶wZc~iY cvB‡eb bv|
(2) GB wewagvjvq wfbœiƒc hvnv wKQyB _vKzK bv †Kb, Dch y³ KZ…©c¶ †Kvb
KviY bv `k©vBqv †Kvb Kg©Pvix‡K beŸB w`‡bi †bvwUk cª`vb Kwiqv A_ev beŸB
w`‡bi †eZb bM` cwi‡kva Kwiqv Zvnv‡K PvKzix nB‡Z Acm viY Kwi‡Z
cvwi‡e|Ó
Almost all the Service Rules relating to the
employees of the Government and autonomous
bodies in their respective Service Rules provide
the identical termination clause of the
employees from their services. There exists a
presumption in favour of the constitutionality
of an enactment. The burden of proof that the
legislation is unconstitutional is upon the
person who attacks it. The sole point to be 9
decided in this case is that such termination
clause is ultra vires the Constitution or parent
law, pursuant to which, the Rule has been
enacted. The High Court Division under the
provisions of Article 102 of the Constitution is
authorized to declare a law ultra vires the
constitution where the same conflicts or is
inconsistent with constitutional provisions or
fundamental rights as provided in the
Constitution or such provision is inconsistent
with the parent law which authorizes the
concerned authority to enact the Service Rules.
The word “ultra-vires” is a Latin Phrase used in
law to describe an act which requires legal
authority but is done without it. If the
subordinate legislation falls outside the
purview conferred, it is ultra vires the
Constitution. The subordinate or delegated
legislation is held to be ultra vires the
enabling or parent law when it is found to be in
excess of the power conferred by the enabling or
parent law. If the delegated legislation is
beyond the power conferred on the delegate by
the enabling Law, it would be invalid. If the
enabling or Parent Act, violates the implied
limit of the Constitution, it will be ultra-
vires the Constitution. 10
Identical issue has been discussed and
considered by this Court and the apex Courts of
the subcontinent. In the case of W.B. SEB Vs.
Desh Bandhu Gosh reported in (1985) 3 SCC 116 it
was observed that any provision in the
regulation enabling the management to terminate
the services of a permanent employee by giving
three months’ notice or pay in lieu thereof,
would be bad as violative of Article 14 of the
Constitution. Such a regulation was held to be
capable of vicious discrimination and was also
held to be naked “hire and fire rule”. In O.P.
Bhandari V. Indian Tourism Development
Corporation Ltd. reported in (1986) 4 SCC 337 it
was observed that the services of a permanent
employee could be terminated by giving him 90
days’ notice or pay in lieu thereof, would be
violative of Article 14 and 16 of the
Constitution. The whole case law as reviewed by
the Constitution Bench in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress reported
in AIR 1991 SC 101 it was observed by C.J.
Sabyasachi Mukharji,
“We have noted several decisions,
numerous as these are, and the diverse facts,
as we have found. We have noted that in some
case arbitrary action or whimsical action or
discriminatory action can flow or follow by 11
the preponderance of these powers. The fact
that the power so entrusted with a high
ranking authority or body is not always a
safe or sound insurance against misuse. At
least, it does not always ensure against
erosion of credibility in the exercise of the
power in particular contingency. Yet,
discipline has to be maintained, efficiency
of the institution has to be ensured. It has
to be recognized that quick actions are very
often necessary in running of an institution
or public service or public utility and
public concern. It is not always possible to
have enquiry because disclosure is difficult,
evidence is hesitant and difficult, often
impossible. In these circumstances, what
should be the approach to the location of
power and what should be the content and
extent of power, possession and exercise of
which is essential for efficient running of
the industries or services? It has to be a
matter both of balancing and adjustment on
which one can wager the salavation of rights
and liberties of the employees concerned and
the future of the industries or the services
involved.
Bearing in mind the aforesaid principles
and objects, it appears to us that the power
to terminate the employment of permanent
employee must be there. Efficiency and
expediency and the necessity of running an
industry or service make it imperative to
have those powers. Power must, therefore,
(be) with authorities to take decision
quickly, objectively and independently. Power 12
must be assumed with certain conditions of
duty. The preamble, the policy purpose of the
enacting provision delimit the occasions or
the contingencies for the need for the
exercise of the power and these should limit
the occasions of exercise of such powers. The
manner in which such exercise of power should
be made should ensure fairness, avoid
arbitrariness and mala fide and create
credibility in the decisions arrived at or by
exercise of the power. All these are
essential to ensure that power is fairly
exercised and there is fair play in action.
Reasons, good and sound, must control the
exercise of power.
Notice of hearing may or may not be
given, opportunity in the form of an enquiry
may or may not be given, yet arbitrariness
and discrimination and acting whimsically
must be avoided. These powers must,
therefore, be so read that the powers can be
exercised on reasons, reasons should be
recorded, reasons need not always be
communicated, must be by authorities who are
competent and are expected to act fairly,
objectively and independently. The occasion
for the use of power must be clearly
circumscribed in the above limits. These must
also circumscribe that the need for exercise
of those power without holding a detailed or
prolonged enquiry is there.“
However, majority view of the aforesaid case
was that such termination clause is arbitrary,
unjust, unfair and unreasonable offending 13
Article 14, 16(1), 19(1)(ga) and 21 of the
Constitution.
In the case of BADC and another Vs. Md.
Shamsul Haque Muzumder and others, reported in
60 DLR (AD)152 this Division has observed,
“In the instant case, the vires of
Regulation 55(2) though challenged the High
Court Division declined to declare the
regulation ultra vires as the High Court
Division thought it prudent to dispose of the
case otherwise than by striking down the
regulation. The approach of the High Court
Division is appreciated because when a case
can be decided without striking down the law
but giving the relief to the petitioners that
course is always better than striking down
the law.”
In the case of Abdul Baque and another Vs.
Bangladesh, reported in 68 DLR(AD) 235, this
Division has held,
“Regulation 54(2) of the Bangladesh
Sangbad Sangstha Employees Service
Regulations, 1995 does not provide for any
guideline for exercise of power of termination
under this Regulation and, as such, it is
prone to and permits the authority its abuse
and arbitrary and discriminatory exercise
under this Regulation which renders Regulation
54(2) being violative of fundamental right
guaranteed by Article 27 of the Constitution.” 14
But it finally did not declare such
legislation void or ultra-vires the
Constitution.
In the case of Central Inland Water
Transport Corporation Ltd. V. Brojo Nath Ganguly
and another reported in AIR 1986 SC. 1571 it was
observed,
“The law exists to serve the needs of the
society which is governed by it. If the law is
to play its allotted role of serving the needs
of the society, it must reflect the ideas and
ideologies of that society. It must keep time
with the heartbeats of the society and with the
needs and aspirations of the people. As the
society changes, the law cannot remain
immutable. The early nineteenth century essayist
and wit, Sydney Smith, said, ‘When I hear any
man talk of an unalterable law, I am convinced
that he is an unalterable fool.’ It was further
observed that “the Calcutta High Court was,
therefore, right in quashing the impugned orders
dated February 26, 1983, terminating the
services of the contesting respondents and
directing the Corporation to reinstate them and
to pay them all arrears of salary. The High
Court was, however, not right in declaring
clause (i) of Rule 9 in its entirety as ultra 15
vires Art.14 of the Constitution and in striking
down as being void the whole of that clause.”
Supreme Court of India finally passed the
following order, “………………the order passed by the
Calcutta High Court is modified by substituting
for the declaration given by it a declaration
that clause (i) of Rule 9 of the “Service,
Discipline and Appeal Rules, 1979” of the
Central Inland Water Transport Corporation
Limited is void under S.23 of the Contract Act,
1872, as being opposed to public policy and is
also ultra vires Art. 14 of the Constitution to
the extent that it confers upon the Corporation
the right to terminate the employment of a
permanent employee by giving him three months’
notice in writing or by paying him the
equivalent of three months’ basic pay and
dearness allowance in lieu of such notice.”
It is well established principle of
statutory interpretation that the object or
purpose of all constructions and interpretations
is to ascertain the intention of the law makers
and make it effective. The High Court Division
is not at liberty to declare a law void because
in its opinion it is opposed to the spirit of
the Constitution. There is a distance between
violation of the provisions of Constitution and 16
“the spirit of the Constitution”. While testing
the constitutional validity of a law the
question may arise whether the legislature was
competent to enact the law or whether the
legislature has transgressed the limits imposed
by the Constitution or parent law. In this case
such question does not arise. It is to be
presumed that the legislature understands and
correctly appreciates the need of its own
people, necessity of such harsh law for proper
administration of a government office and
instruments.
The Constitutionality of a provision of a
statute on the ground that power is vested in
the higher officials and the same is very harsh
and the same may be used in abusive manner
cannot be called in question.
It appears from the judgment and order that
the High Court Division set aside the said
provision on the ground that the same was
arbitrary and unreasonable and also violative of
the provision of audi alteram partem. So far the
observation as to violation of the provision of
audi alteram partem is concerned it is to be
remembered that where the right to prior notice
is likely to obstruct the taking of prompt
action such a right can be excluded. The right 17
to notice is excluded where the nature of the
course to be taken, its object and purpose and
the scheme of the statutory provisions prove for
such exclusion (Union of India V. Tulsiram
Patel, AIR 1985 SC 1416). In the case of
Baikuntha Nath Das V. Chief District Medical
Officer, Baripada and another reported in AIR
1992 SC 1020 it has been observed that the
principles of natural justice have no place in
the context of an order of compulsory retirement
and hence, audi alteram partem is not attracted
in case of such retirement. Where the holder of
an office is subject to termination at pleasure
he has no right to be heard before termination.
V.R. Krishna Iyer, J. in the case of the
Chairman, Board of Mining Examination and others
V. Ramjee (1977 AIR SC 965) held that unnatural
expansion of natural justice, without reference
to the administrative realities and other
factors of a given case, can be exasperating.
Whether the exercise of a power conferred should
be made in accordance with any of the principles
of natural justice or not depends upon express
words of the provision conferring the power.
54(2) of the Service Rules has not provided any
provision of issuance of notice before
termination of an employee. 18
In the case of Swadeshi Cotton Mills V.
Union of India (1981)1 SCC 664, para 33, it was
observed by Justice R.S. Sarkaria that, “The
audi alteram partem rule, (…), is a very
flexible, malleable and adaptable concept of
natural justice. To adjust and harmonize the
need for speed and obligation to act fairly, it
can be modified and the measure of its
application cut short in reasonable proportion
to the exigencies of the situation”. In the
same case it was also held that, “The situation
that demands immediate action or is preventive
or remedial, in those case one cannot wait for
the proper application of principles of natural
justice.”
In the case of Arcot Textitle Mills Ltd Vs.
Regl. Provident Fund Commr., (2013) 16 SCC 1,
Justice Dipak Mishra observed that, “Principles
of natural justice should neither be treated
with absolute rigidity nor should they be
imprisoned in a straitjacket. The concept of
natural justice sometimes requires flexibility
in the application of the rule. What is required
to be seen is the ultimate weighing on the
balance of fairness. The requirements of natural
justice depend upon the circumstances of the
case. Natural Justice has many facets. 19
Sometimes, the said doctrine is applied in a
broad way, sometimes in a limited or narrow
manner.”
Almost all the Service Rules not only in
Bangladesh, but also around the globe have
identical termination clause. Termination
clauses are necessary exceptions to the doctrine
of audi alteram partem or natural justice.
Termination clause in service rules is necessary
for the purpose of managing and supervising the
employees and maintaining discipline and order
in the service. To maintain discipline and order
in the service, sometimes it might be required
to take quick and prompt action and set aside
all the formalities. During that period, it is
necessary that the rights of general interest
are given priority over the individual interest.
Hence, in such scenario the mandatory
requirements of assigning reasons and providing
adequate opportunity of hearing might be relaxed
and decision can be taken without following
them.
Section 54(2) of the Service Rules might
appear to be a harsh provision for the concerned
individual, but such a provision is necessary
for the greater good and to prevent prospective
delinquent behavior of employees which might 20
compromise discipline and order in the service.
Hence, it can be said that the said provision
does not violate the doctrine of natural justice
or audi alteram partem, as the application of
such doctrine is excluded in the interest of
administrative efficiency and necessity.
It has been submitted that the provision of
rule 54(2) should be declared void as it is
arbitrary and violates the doctrine of audi
alteram partem or natural justice. The
provision of rule 54(2) of the Service Rules
does not violate the principle of audi alteram
partem or natural justice. Nothing is absolute
in law and the doctrine of audi alteram partem
is not an absolute doctrine to be complied with.
This doctrine has got its exceptions.
The efficiency and expediency and the
necessity of running an office make it
imperative to give the power to the employer to
terminate the employment of employees but
exercise such power should ensure fairness,
avoid arbitrariness and malafide. The Law
authorizing the authority to terminate the
service of the employees by giving reasonable
notice or pay in lieu of notice is
constitutionally valid. 21
Mere harshness or unreasonableness or
arbitrariness cannot be a ground to declare a
law void or inconsistent with the provision of
the Constitution. It has been repeatedly
observed by this Apex Court that if an incumbent
is entitled to get relief without declaring a
law void, the Court will give such relief. Since
the order of termination of the respondent No.1
was not an order of termination simpliciter but
the same was an order of dismissal in the guise
of the order of termination so the same was
liable to be declared void and the High Court
Division rightly did so. But the High Court
Division has failed to draw any conclusion as to
whether the instant provision that is Rule 54(2)
of the Anti Corruption Commission (Employees)
Service Rules, 2008 is inconsistent either with
the provision of Article 7(2) of the
Constitution or inconsistent with the provisions
provided in Chapter 3 of the Constitution or
such provision is inconsistent with the parent
law.
Considering the aforesaid facts and
circumstances, we find the substance in the
appeal.
Thus, the appeal is allowed. The judgment
and order dated 27.10.2011 passed by the High 22
Court Division in Writ Petition No.1424 of 2011
is set aside so far it relates to “set aside”
the provision of Rule 54(2) of the Service
Rules. Since the further proceeding of the Writ
Petition No.3697 of 2022 is stayed till disposal
of the Civil Appeal No.15 of 2022 and that by
the judgment and order said Civil Appeal has
been disposed of, the Civil Petition for Leave
to Appeal No.1732 of 2022 is redundant.
C. J.
Md. Nuruzzaman, J
I have had the Privilege to go through the
judgment Proposed by mylord Mr. Chief justice
Hassan Foez Siddique J and my learned brother
Mr. Justice M. Enayeture Rahim, J
Agreeing with the final decision of the
appeal, I Concur with the judgment and
guidelines as proposed by my brother Mr. Justice
M. Enayetur Rahim, in addition to above views I
have some Lexical and Constitutional views in
deciding the instant appeal.
First of all it is my considered view that the
facts of the case as has been discussed by
mylord chief Justice is suffice to dispose of
the appeal and, as such, again rewriting the
same would be nothing but repeat mark unless a 23
little bit is necessary for the proper
discussion and opinion as and where necessary.
The instant appeal had arisen from the Judgment
of the High Court Division Passed in writ
petition NO. 1424 of 2011 which was filled
challenging the provision of the Rule 54(2) of
the Anti Corruption commission (Employees)
service Rule, 2008 as well as the order of
termination as has been passed by the authority.
It would be gracious to quote the provision of
Rules 54:-
"54| PvKyix Aemvb|-(1) Dchy³ KZ©…c¶ ‡Kvb KviY c«`k©b bv Kwiqv Ges GK
gv‡mi ‡bvwUk c«`vb Kwiqv A_ev ‡bvwU‡ki cwie‡Z© GK gv ‡mi ‡eZb c«`vb Kwiqv
‡Kvb wk¶vbwe‡mi PvKyixi Aemvb NUvB‡Z cvwi‡e Ges wk¶v bwem Zvnvi PvKyix
Aemv‡bi Kvi‡Y ‡Kvb c«Kvi ¶wZc~iY cvB‡eb bv|
(2) GB wewagvjvq wfbœiƒc hvnv wKQyB _vKyK bv ‡Kb, Dch y³ KZ©…c¶ ‡Kvb KviY
bv `k©vBqv ‡Kvb Kg©Pvix‡K beŸB w`‡bi ‡bvwUk c«`vb K wiqv A_ev beŸB w`‡bi
‡eZb bM` cwi‡kva Kwiqv Zvnv‡K PvKyix nB‡Z AcmviY Kwi ‡Z cvwi‡e|" [54.
Termination of employment.-(1) The
competent authority, without assigning any
reason and by giving one month's notice or
by paying one month's salary in lieu of
notice, can terminate the service of a
probationer and the probationer shall not
receive any compensation on account of
termination of his service. 24
(2) Notwithstanding anything to the
contrary contained in these rules, the
competent authority may, without assigning
any reason, remove an employee from service
by giving ninety days' notice or payment of
ninety days' salary in cash.]
It would be further more gracious to quote
the Article 27 of the Constitutions:-
All citizens are equal before law and are
entitled to equal protection of law.
So, the subordinate legislation cannot get
primacy over the constitution.
On careful reading of the above mentioned
provisions so far these have an effect on the
terminate the service of the probationers, I too
concur with the learned Chief Justice’s view that
almost all the service Rules relating to the
government and autonomous Body’s employees possesse s
identical provisions for termination of their
services. However, regarding the termination of
services of the permanent employees, there always
contains some sort of safety bulbs or grievance
mitigating mechanisms in the respective service
Rules, which are significantly absent in the
impugned Rule. On the face of the record, it seems
contrary to the principle of Audi Alteram Partem.
Some direct consequences of such termination
policies under Rule 54(2) are that- as per Rule 51
that permanent employee will not be entitled for 25
Gratuities, how long his/her service tenure may be.
Another fatal outcome is that he/she shall be
deprived from getting pension benefits etc as per
Rule 53.
Moreover, there contains a separate Chapter 7
in the impugned Rules titling ‘General Conduct and
Discipline’ for initiating departmental proceeding
against any employee. It clearly indicates that,
provisions under Rule 54 (2) are an extraordinary
stipulation. Therefore, which bizarre situation
compelled the Appropriate Authority for resorting
such a lethal step bypassing the ordinary course of
disciplinary action against one of its staffers,
must be recorded in writing even within the ambit o f
Rule 54(2).
In the termination order of the respondent no.
1, dated 10 February, 2011, the primary cause
assigned for his termination was that he spoke fals e
and concocted facts about Commission and the “high-
ups” (EaŸ©Zb Kg©KZ©v) of the Commission. From the
organogram of the ACC it is evident that Commission
usually comprised of one Chairman and 02
Commissioners all of whom are from former high
officials of the state and no one is from alumnus o f
the Commission. In any given bureaucracy, the post
of the Secretary is the pivotal and in the
Commission this position is invariably posted from
the superior service cadres of the Government. Most 26
of the high officials are from outside of the
Commission working on deputation basis.
The mandate of the employees of the Commission
is investigation of corruption and usually most of
the time they inquires against public officials of
highest to lowest hierarchy of the Republic. The
essence of this discussion is that sometimes it is
possible that any official under investigation by
the employee of the ACC could be a batch mate or
from same service etc of the employee’s high-up.
Then, there exists, at least, theoretical
possibility of being undue influence or pressure. I n
such situation, the investigator is badly in need o f
organizational professional safeguards. The positio n
of the Secretary could play the role of such type o f
safeguard where the employee under duress can take
resort. Otherwise, the employees of the ACC should
always remain with the vicissitudes of sweet will o f
their high-up.
From this perspective, my pious wish is that
the position of the Secretary of the commission
should be appointed from the eligible officers of
the Commission by the Government.
Moveso, to strengthen the commission activities one
of the commissioner must be appointed from the high
official of Anti Corruption Commission.
For this end, establishing a separate cadre
service for ACC is a must. 27
It is better for the ACC to revise the impugned
Rules “`yb©xwZ `gb Kwgkb (Kg©Pvix) PvKzix wewagvjv, 2008 ” for creating a
just, fair and healthy atmosphere within the
organization. Because, any law legislated is not a
sacrament, it could be changed, should be amended
for coping it up to the demand of the day and
justice.
J.
Obaidul Hassan, J. I have gone through both the
judgments and orders proposed to be delivered by
the Hon’ble Chief Justice Mr. Justice Hasan Foez
Siddique and by Mr. Justice M. Enayetur Rahim.
Agreeing with the ultimate decision of the
case, I concur with the observation/guidelines
regarding exercise of power given under Rule
54(2) of the Durnity Daman Commission
(Karmachari) Chakuri Bidhimala, 2008 as proposed
by Mr. Justice M. Enayetur Rahim.
J.
Borhanuddin,J: I have gone through both the
judgment and order proposed to be delivered by the
Hon’ble Chief Justice Hasan Foez Siddique and by
Justice M. Enayetur Rahim.
Agreeing with the ultimate decision of the
case, I concur with the observation/guidelines
regarding exercise of power given under Rule 54(2)
of the Durnity Daman Commission (Karmachari) 28
Chakuri Bidhimala, 2008 as proposed by Justice M.
Enayetur Rahim since the said Rule is contrary to
the principle of audi alteram partem.
J.
M. Enayetur Rahim, J : I have had the privilege to
go through the judgment rendered by the Hon’ble
Chief Justice Hasan Foez Siddique, J.
Agreeing with the ultimate decision, it is
deemed necessary to express my views on the issues
involved in the instant case.
In this particular case the provision of the
Rule 54 (2) Anti-Corruption Commission (Employees)
Service Rules, 2008 and the order of termination of
the writ petitioner-respondent No.1 has been
challenged on the plea that the above Rule is
violative of the fundamental rights as guaranteed in
Articles 27, 29,31 and 40 of the Constitution and,
that by inserting the said Rule, the authority has
given unguided an unfettered power to remove an
employee without initiating appropriate departmental
proceedings as required under Rule 40 of the Rules
and also without reasoning which is unwarranted.
In dealing with the particular case, certain
salient facts need to be borne in mind, in
particular -
i) the writ petitioner, having obtained
Master’s degree, in the year 1985 had
applied for job and through a competitive 29
examination in the Public Service
Commission was selected and joined in the
Government Service as an Inspector in the
then Bureau of Anti-Corruption, Bangladesh;
ii) the relationship between the appellant
(employer) and the respondent (employee) is
not master and servant;
iii) during service period of the writ
petitioner, the authority having been
satisfied with his performance of service,
has given him several promotions as well as
higher pay scales and he also awarded with
appreciation and honorariums;
iv) the authority has taken the impugned action
of termination against the writ petitioner,
while a departmental proceeding was pending
and against which Writ Petition No.9278 of
2010 was also pending before the High Court
Division;
v) the writ petitioner made allegations to the
higher authority concerned against the
investigating officer, who was an army
person and had tried to save an accused of
a case, who was also an army officer;
vi) bidhi 38-45 of the Durniti Daman Commission
(Karmachari) Chakuri Bidhimala, 2008
(herein after referred to as Service Rules)
deal with the conduct and discipline of the 30
employees as well as disciplinary
proceeding and punishment; and
vii) it is now well settled that mala fide,
unfair, bias, unreasonable action of the
administrative authority is without lawful
authority and is of no legal effect.
Keeping in mind the above salient features we
may look into some cases of our jurisdiction as wel l
as Indian jurisdiction.
In the case of Hyundai Corporation vs Sumikin
Bussan Corporation and others, reported in 54 DLR
(AD),88 this Division has observed that transparency in
the decision making as well as in the functioning of the public bodies is
desired and the judicial power of review is to be e xercised to rein in any
unbridled executive functioning. In the above case this
Division relied on the case of Tata Cellular vs.
Union of India, AIR 1966 (SC)11, wherein the Supreme
Court of India has been held to the effect:
“The right to choose cannot be considered to be an
arbitrary power. Of course, if the said power is ex ercised for
any collateral purpose the exercise of that power w ill be struck
down.
Judicial quest in administrative matters has been t o find
the right balance between the administrative discretion to decide
matters whether contractual or political in nature or issues of
social policy: thus they are not essentially justic iable and the
need to remedy any unfairness. Such an unfairness is set right by
judicial review. 31
The observance of judicial restraint is currently t he mood
in England. The judicial power of review is exercis ed to rein in
any unbridled executive functioning. The restraint has two
contemporary manifestations. One is the ambit of ju dicial
intervention, the other covers the scope of the Cou rt’s ability to
quash an administrative decision on its merits. The se restraints
bear the hallmarks of judicial control over adminis trative
action.
Judicial review is concerned with reviewing not th e
merits of the decision in support of which the appl ication of
judicial review is made, but the decision making pr ocess itself.”
(Underlines supplied)
In the case of Prakash Rotan vs. State of
Bihar(2009) 14 SC, 690 the Supreme Court of India
has held that if there is a power to decide and decide detrimenta lly to
the prejudice of a person, duty to act judicially a nd fairly is implicit in the
exercise of such a power.
And also held that if any of the actions or administrative
decisions result in civil consequences, the actions or decision could be
judicially reviewed or tested on the anvil of principles of norman justice.
In the case of Canara Bank and others vs.
Debasis Das, Manu/SC/0225/2003, the Supreme Court of
India has observed that:
“Natural justice is another name for commonsense
justice. Rules of natural justice are not codified canons. But they
are principles ingrained into the conscience of man . Natural
justice is the administration of justice in a commo nsense liberal
way. Justice is based substantially on natural idea ls and human 32
values. The administration of justice is to be free d from the
narrow and restricted considerations which are usua lly
associated with a formulated law involving linguist ic
technicalities and grammatical niceties. It is the substance of
justice which has to determine its form.
The expression “natural justice” and “legal justice ” do
not present a water-tight classification. It is the substance of
justice which is to be secured by both, and wheneve r legal
justice fails to achieve this solemn purpose, natur al justice is
called in aid of legal justice. Natural justice rel ieves legal
justice from unnecessary technicality, grammatical pedantry or
logical prevarication. It supplies the omissions of a formulated
law. As Lord Buckmaster said, no form or procedure should
ever be permitted to exclude the presentation of a litigants’
defence.
Concept of natural justice has undergone a great de al of
change in recent years. Rules of natural justice ar e not rules
embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of duty to be
performed under a statute. What particular rule of natural
justice should be implied and what its context shou ld be in a
given case must depend to a great extent on the fac t and
circumstances of that case, the frame-work of the s tatute under
which the enquiry is held. The old distinction betw een a judicial
act and an administrative act has withered away. Ev en an
administrative order which involves civil consequen ces must be
consistent with the rules of natural justice. Expre ssion ‘civil
consequences’ encompasses infraction of not merely property or 33
personal rights but of civil liberties, material de privations, and
non-pecuniary damages. In its wide umbrella comes e verything
that affects a citizen in his civil life.” (Underlines supplied)
In the case of Engineer Mahmudul Islam vs.
Bangladesh, reported in 2000 BLD(AD)92 this Division
has uphold the view of the High Court Division that
the action of the official concerned must not be un fair, unreasonable and
discriminatory.
A mala-fide exercise of discretionary power is
bad as it amounts to abuse of discretion and that
mala-fide or bad faith vitiates everything and a
mala fide act is a nullify.
In case of Bihar Vs. P P Sharma , reported in
AIR 1991 SC, 1260 it has been observed that the
determination of the plea of mala fide involves two
questions namely-
i) whether there is a personal bias or oblique motive; and
ii) whether the administrative action is contrary to it
objects, requirements and conditions of a valid exe rcise
of administrative power.
In the Case of Ram Chandra Vs. Secretary to
the Government of W.B. reported in AIR 1964 Cal 265
it has been held that –
“It is commonplace to state that mala fide does no t necessarily
involve a malicious intention. It is enough if the aggrieved party
establishes-
i) that the authority making the impugned order did no t
apply its mind at all to the matter in question; or 34
ii) that the impugned order was made for a purpose or
upon a ground other than what is mentioned in the
order.”
In the Case Dr. Nurul Islam Vs. Bangladesh , 33
DLR (AD)201 section 9(2) of the Public Servants
(Retirement) Act, 1974 has not been declared ultra
vires the constitution but the impugned order of
premature retirement was declared to have made
without lawful authority, as finding that the order
was vitiated by malice in law.
In the above case Badrul Haider Chowdhury, J.
has observed –
“Neither the Act nor the rules provide any princip le or
guideline for the exercise of discretion by the Gov ernment when
it proposes to retire a Government servant under section 9(2). In
such case the scope for arbitrary exercise of discr etion cannot
be ruled out, as has happened in this case. In orde r to
circumvent the previous decision of the High Court Division, the
respondents issued the impugned notification which clearly
makes out a case of malice in law.”
Unfairness or arbitrariness amounts to an abuse
of power, Lord Scarman agreeing with the speech of
Lord Templeman observed:
“...I must make it clear my view that the principle of fairness
has an important place in the law of judicial revie w and that in an
appropriate case it is a ground upon which the cour t can intervene to
quash a decision made by a public officer or author ity in purported
exercise of power conferred by law.” 35
In a case where unfairness was alleged the House of
Lords made the following observations:
“The so-called rules of natural justice are not eng raved on
tables of stone. To use the phrase which better exp resses the
underlying concept, what the requirements of fairne ss demands when
any body, domestic, administrative or judicial, has to make a decision
which will affect the rights of individuals depends upon the character
of the decision-making body, the kind of decision i t has to make and
the statutory or other framework in which operates.”
[Reference: Constitutional Law of Bangladesh, Third
Edition, By Mahmudul Islam]
The views expressed by Sabyasachi Mukherjee, C.J.
in Case of Delhi Transport Corporation vs. D.T.C.
Mazdoor Congress and Ors. [MANU/SC/0031/1991] have been
cited by the Hon’ble Chief Justice. However, all hi s
views have not been supported by other 03(three) Ju dges
of the Bench.
In the said case B.C. Roy, J. has observed:
“162. Even executive authorities when taking admini strative
action which involves any deprivation of or restric tion on inherent
fundamental rights of citizens must take care to se e that justice is not
only done but manifestly appears to be done. They h ave a duty to
proceed in a way which is free from even the appear ance of
arbitrariness, unreasonableness or unfairness. They have to act in a
manner which is patently impartial and meets the re quirements of
natural justice.
163. It is also pertinent to refer in this connecti on the
pronouncement of this court in the case of E.P.Roya ppa V. State of
Tamil Nadu and Anr. MANU/SC/0380/1973: (1974)ILLJ172SC.
Equality and arbitrariness are sworn enemies, one b elongs to
the rule of law in a public while the other to the whim and caprice of 36
an absolute monarch. Article 14 strikes at arbitrariness in state action
and ensures fairness and equality of treatment. The principle of
reasonableness which legally as well as philosophic ally, is an
essential element of equality or non-arbitrariness pervades Article 14
like a brooding omni-presence and the procedure con templated by
Article 21 must answer the test of reasonableness i n order to be in
conformity with Article 14, it must be right and ju st and fair and not
arbitrary, fanciful or oppressive.
....................................................................................................
169. In the case of S.S. Muley V. J.R.D. Tata and o rs. [1979]2
SLR 438 constitutionality came up for consideration and this court
held the said regulation 48 to be discriminatory an d void as it gives
unrestricted and unguided power on the Authority co ncerned to
terminate the services of a permanent employee by i ssuing a notice or
pay in lieu thereof without giving any opportunity of hearing to the
employee concerned and thereby violating the princi ples of natural
justice and also Article 14 of the Constitution.
....................................................................................................
184. ………. . No opportunity of a hearing is at all to be
afforded to the permanent employee whose service is being
terminated in the exercise of this power. It thus v iolates audi alteram
partem rule of natural justice also which is implic it in Article 14. It is
not covered by any of the situations which would ju stify the total
exclusion of the audi alteram partem rule. The view that the Board of
Directors would not exercise this power arbitrarily or capriciously as
it consists of responsible and highly placed perso ns ignores the fact
that however highly placed a person may be he must necessarily
posses human frailties and “power tends to corrupt, and absolute
power corrupts absolutely.”
.................................................................................................... 37
197.................. Rule of law posits that the power to be
exercised in a manner which is just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner leavin g room for
discrimination. Regulation 9(b) does not expressly exclude the
application of the ‘audi alteram partem’ rule and as such the order of
termination of service of a permanent employee cann ot be passed by
simply issuing a month’s notice under Regulation 9( b) or pay in lieu
thereof without recording any reason in the order a nd without giving
any hearing to the employee to controvert the alleg ation on the basis
of which the purported order is made.
....................................................................................................
212. On a proper consideration of the cases cited hereinbefore
as well as the observations of Seervai in his book ‘Constitutional Law
of India’ and also the meaning that has been given in the Australian
Federal Constitutional Law by Coin Howard, it is cl ear and apparent
that where any term has been used in the Act which per se seems to be
without jurisdiction but can be read down in order to make it
constitutionally valid by separating and excluding the part which is
invalid or by interpreting the word in such a fashi on in order to make
it constitutionally valid and within jurisdiction o f the legislature
which passed the said enactment by reading down the provisions of
the Act. This, however, does not under any circumst ances mean that
where the plain and literal meaning that follows fr om a bare reading
of the provisions of the Act, Rule or Regulation th at it confers
arbitrary, uncancalised, unbridled, unrestricted po wer to terminate
the services of a permanent employee without record ing any reasons
for the same and without adhering to the principles of natural justice
and equality before the law as envisaged in article 14 of the
constitution, cannot be read down to save the said provision from
constitutional invalidity by bringing or adding wor ds in the said 38
legislation such as saying that it implies that rea sons for the order of
termination have to be recorded. In interpreting th e provisions of an
Act, it is not permissible where the plain language of the provision
gives a clear and unambiguous meaning can be interp reted by
reading down and presuming certain expressions in o rder to save it
from constitutional invalidity. Therefore, on a con sideration of the
above decisions, it is impossible to hold by readin g down the
impugned provisions of Regulation 9(b) framed Under Section 53 of
the Delhi Road Transport Act, 1950 read with Delhi Road Transport
(Amendment)Act, 1971 that the said provision does n ot confer
arbitrary, unguided, unrestricted and uncanalised p ower without any
guidelines on the authority to terminate the servic es of an employee
without conforming to the principles of natural justice and equality as
envisaged in Article 14 of the constitution of Indi a.” (Underlines
supplied).
In the above case P.B. Sawant,J. has observed:
224.………… . It is all the more improper and undesirable to
expose the precious rights like the rights of life, liberty and property
to the vagaries of the individual whims and fancies . It is trite to say
that individuals are not and do not become wise bec ause they occupy
high seats of power, and good sense, circumspection and fairness
does not go with the posts, however high they may b e. There is only a
complaisant presumption that those who occupy high posts have a
high sense of responsibility. The presumption is ne ither legal nor
rational. History does not support it and reality d oes not warrant it.
In particular, in a society pledged to uphold the r ule of law, it would
be both unwise and impolitic to leave any aspect of its life to be
governed by discretion when it can conveniently and easily be
covered by the rule of law. 39
225. The employment under the public undertakings i s a
public employment and a public property. It is not only the
undertakings but also the society which has a stake in their proper
and efficient working. Both discipline and devotion are necessary for
efficiency. To ensure both, the service conditions of those who work
for them must be encouraging, certain and secured, and not vague
and whimsical. With capricious service conditions, both discipline
and devotion are endangered, and efficiency is impaired.
226. The right to life includes right to livelihood . The right to
livelihood therefore cannot hang on to the fancies of individuals in
authority. The employment is not a bounty from them nor can its
survival be at their mercy. Income is the foundatio n of many
fundamental rights and when work is the sole source of income, the
right to work becomes as much fundamental. Fundamen tal rights can
ill-afford to be consigned to the limbo of undefine d premises and
uncertain applications. That will be a mockery of them.
227. Both the society and the individual employees, therefore,
have an anxious interest in service conditions bein g well-defined and
explicit to the extent possible. The arbitrary rule s, such as the one
under discussion, which are also sometimes describe d as Henry VIII
Rules, can have no place in any service conditions. ” (Underlines
supplied).
In the said case K. Ramaswamy J. disagreeing
with the view of Hon’ble Chief Justice, Supreme
Court of India on applicability of the ‘doctrine of
reading down to sustain the affording provisions’ and agreeing with
other 02 (two) judges has observed to the effect:
“264. The right to life, a basic human right assur ed by Article 21 of
the Constitution comprehends something more than me re animal
existence i.e. dignity of the individual. Field J. in Munn v. Illinois 40
[1876] 94 US 113 held that by the term “life” as he re used,
something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by
which life is enjoyed. The deprivation not only of life but of . . . if it a
efficacy be not fettered away by judicial decision. In Kharak Singh v.
State of U.P. Manu/SC/0085/1962: 1963CriLJ329 this Court
approved the definition of life given by Field J. i n his dissenting
opinion. In Olga Tellis v. Bombay Municipal Corpora tion [1985] 2
Su. SCR 51 this Court further laid that an equally important facet of
the right to life is the right to livelihood becaus e no person can live
without the means of livelihood. If the right to livelihood is not treated
as a part of the constitutional right to life, the easiest way of
depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation… . That, which alone
can make it possible to live, leave aside which makes life livable, must
be deemed to be an integral component of the right to life….The
motive force which propels their desertion of their hearths and homes
in the village is the struggle for Survival, that i s the struggle for life.
So unimpeachable is the nexus between life and the means of
livelihood. Right to life does not only mean physic al existence but
includes basic human dignity.
265. The right to public employment and its concomi tant right
to livelihood, thus, receive their succour and nour ishment under the
canopy of the protective umbrella of Article 14,16( 1),19(1)g) and 21.
Could statutory law arbitrarily take away or abridg ed or abrogated
it? In Board of Trustees, Port of Bombay v. Dilip Kumar
MANU/SC/0184/1982: (1983) ILL J1SC AIR 1983 SC 109 this Court
held that the expression “life” does not merely con note animal
existence or a continued drudgery through life, the expression life has
a much wider meaning. Where, therefore, the outcome of a
departmental enquiry is likely to affect reputation or livelihood of a 41
person, some of the finer graces of human civilisat ion which makes
life worth living would be jeopardised and the same can be put in
jeopardy only by law which inheres fair procedure.”
…………................................................................................
323. ………. In a system governed by rule of law, discretion,
when conferred upon executive authorities, must be confined within
defined limits. The rule of law from this point of view means that
decisions should be made by the application of know n principles and
rules and, in general, such decisions should be pre dictable and the
citizen should know where he is. If a decision is t aken without any
principle or without any rule it is unpredictable and such a decision is
the antithesis of a decision taken in accordance wi th the rule of law.
(See Dicey-“Law of the Constitution”-10 th Edn., Introduction
cx.......... It is in this sense that the rule of law may be sa id to be the
sworn enemy of caprice. Discretion, as Lord Mansfie ld stated it in
classic terms in the case of John Wilkes “means sho uld discretion
guided by law. It must be governed by rule, not by humour; it must
not be arbitrary, vague and fanciful,” “as followed in this Court in
S.G. Jaisinghani v. Union of India. MANU/SC/0361/1 967: [1967]
651 ITR34 (SC).
324. In an appropriate case where there is no suffi cient
evidence available to inflict by way of disciplinar y measure, penalty
of dismissal or removal from service and to meet such a situation, it is
not as if that the authority is lacking any power t o make Rules or
regulations to give a notice of opportunity with th e grounds or the
material on records on which it proposed to take ac tion, consider the
objections and record reasons on the basis of which it had taken
action and communicate the same. However, scanty th e material may
be, it must form foundation. This minimal procedure should be made
part of the procedure lest the exercise of the powe r is capable of 42
abuse for good as well as for whimsical or capricio us purposes for
reasons best known to the authority and not germane for the purpose
for which the power was conferred. The action based on recording
reasoning without communication would always be vie wed with
suspicion. Therefore, I hold that conferment of pow er with wide
discretion without any guidelines, without any just , fair or reasonable
procedure is constitutionally anathema to Article 1 4,16(1), 19(1)(g)
and 21 of the Constitution. Doctrine of reading dow n cannot be
extended to such a situation.” [underlines supplied]
If we consider the above ratio decidendi/obiter
dictum coupled with the salient facts and
circumstances of the present case, in particular
that the authority had exercised its power conferred
under Rule 54(2) of the Service Rules when a
departmental proceeding was pending against the writ
petitioner, which was also challenged by the writ
petitioner vide writ petition No.9278 of 2010 and
the same was pending for hearing and further, that
he made complaint before the authority concerned
against the investigation officer who was on
deputation, then it is very difficult to arrive at a
definite conclusion that the authority had taken th e
impugned decision of termination against the writ
petitioner in exercising its discretionary power
conferred in rule 54(2) of the Service Rules fairly,
justly, reasonably, bona fide and, without any
oblique motive. The present appellant contested the
Rule without filing affidavit-in-opposition and it
failed to produce any scrap of paper before the 43
Court to show that the decision making process was
fair, just, bona fide and not whimsical and also
without any oblique motive.
In view of the above, the High Court Division
did not commit any error or illegality in declaring
the impugned decision of termination of the writ
petitioner-respondent in exercising discretionary
power as conferred in rule 54(2) of the Service
Rules without lawful authority and is of no legal
effect.
However, there is no scope to dis-agree with
the well settled proposition of law as laid down in
the cases of Dr. Narul Islam Vs. Bangladesh, 33
DLR(AD)201; BADC and another vs. Md. Shamsul Hoque
Majumder and others, 60 DLR (AD)152 and Abdul Hoque
and another vs. Bangladesh, 68 DLR(AD)235 that mere
harshness or unreasonableness or arbitrariness
cannot be a ground to declare a law void or
inconsistent with the provision of the constitution
and, that if an incumbent is entitled to get relief
without declaring a law void, the Court will give
such relief.
Vis-a-vis it should be borne in mind that the
right to life includes right to livelihood and the
said right of livelihood cannot be hanged on the
fancies of the authority as the income is the
foundation of many fundamental rights.
It has already been discussed that exercise of
discretionary power by the authority must be guided 44
by the relevant law/rules or some principle to avoi d
arbitrariness, unfairness and unreasonableness. As
such it is expected that the authority concerned,
i.e. the Anti-Corruption Commission should follow
the following observations/guidelines in order to
exercise power given under Rule 54(2) of the Service
Rules-
i. the Durnity Daman Commission (Karmachari) Chakuri B idhimala,
2008 has prescribed the procedure to initiate depar tmental
proceeding against an employee for the offence comm itted by him
including misconduct affording all opportunities of Principle of
Natural Justice and ensuring all rights to defend h is case hence, it
should not apply the provisions of Rule 54 (2) of t he Durnity Daman
Commission (Karmachari)Chakuri Bidhimala,, 2008 at first to get rid
an employee unless situation demands so;
ii. the provisions of Termination Simplicitor should no t be used in a
fanciful manner when there is other way out;
iii. since bidhi 54 (2) of the Durnity Daman Commission
(Karmachari)Chakuri Bidhimala, 2008 has given unfet tered and
unguided power to the Anti-Corruption Commission au thority to get
rid of any employee who is causing displeasure to t hem without
assigning any reason which is opposed to the 'Principle of Natural
Justice" and of 'audi alteram partem' therefore, it is expected that
the authority must exercise the power under Rule-54 (2) the Service
Rules of 2008 with utmost care and caution; 45
iv. since bidhi 54 (2) of the Durnity Daman Commission
(Karmachari)Chakuri Bidhimala, 2008 creates a sense of insecurity
in the minds of the employees to perform their duties with honesty
and courage therefore, under rule 54 (2) of the Service Rules of 2008
the employer must exercise the power only in specia l cases where it is
necessary and other employees also find the decisio n of the authority
as rational;
v. an employee of Anti-Corruption Commission usually w orks with
serious cases of corruption and misappropriation of power and
position committed by the most powerful stake holde rs of the country
including the most powerful businessman, politician s of the country
and the bureaucrats of the Governments, the authori ty while
exercising the power of ‘Termination’ must remain c areful that
nobody is victimized at the behest of high ups;
vi. the service of an employee of a Statutory Corporati on, Public Body,
National Enterprise etc. is not like that of a master and servant rather
their tenure of service and other terms and condition are based on the
relevant Statute and the Service Regulations, Thus extra ordinary
power to terminate any employees with three months’ notice or pay in
lieu of who has served a long time is always discouraged;.
vii. case of every employee is required to be dealt with on merit by the
concerned authority before they decide to terminate him from his job.
Since the law empowers the authorities with such ex tra ordinary
weapon, it should be used only in an extra ordinary situation and as a
last resort, on consideration of individual merit o f each and every
case and not otherwise; 46
viii. an employee should not be terminated by using Rule 54 (2) as a tool
in the garb of a constructive dismissal;
ix. without assigning any reason as envisaged in Rule 5 4 (2) does not
mean without having any reasons. Reason or reasons must be
recorded in the note sheet before the Authorities t ake its decision to
terminate an employee;
x. selection for Termination under Rule 54 (2) shall b e made fairly and
justly, without any pick and choose, without any bi as, without any
discrimination under the mandate of the Constitutio n of the People's
Republic of Bangladesh. The parameters of such term ination has to
be set in accordance with the equality provision of the Constitution;
xi. the authority must act rationally in its decision m aking process within
the concept of Wednesbury Reasonableness;
xii. no employee should be terminated from his service a gainst whom any
departmental proceeding has already been initiated and pending with
specific charges; in that situation, the authority must conclude the
proceeding and punish the accused if he is found gu ilty. Not in any
other manner.
It is also expected that all the Government,
Semi-government, Autonomous bodie(s),
Corporation(s), Statutory bodie(s), institution(s)
should follow the above observations/guidelines in
taking action of termination against its employee
whatever discretionary power has been conferrer
given in the relevant law/Rules. 47
With the above considerations, discussions,
observations and findings, I am agreeing with the
judgment proposed to be delivered by the Hon’ble
Chief Justice.
J.
Courts Order
The appeal is allowed. The judgment and
order dated 27.10.2011 passed by the High Court
Division in Writ Petition No.1424 of 2011 is set
aside so far it relates to “set aside” the
provision of Rule 54(2) of the Service Rules.
Since the further proceeding of the Writ
Petition No.3697 of 2022 is stayed till disposal
of the Civil Appeal No.15 of 2022 and that by
the judgment and order said Civil Appeal has
been disposed of, the Civil Petition for Leave
to Appeal No.1732 of 2022 is redundant.
C. J.
J.
J.
J.
J.
J.
J.
The 16th March, 2023
halim/words-10532/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS. 10-12 OF 2022
(Arising out of C.P Nos. 1903 of 2020, 2149 of 2020
and 2024 of 2020 respectively)
Bangladesh Bank, represented by
its Governor, Bangladesh Bank
Bhaban, Motijheel Commercial
Area, Dhaka and another
.... Appellants
(In C.A. No.10 of 2022)
Managing Director, United
Finance C ompany Limite d,
Camellia House, 22, Kazi Naz rul
Islam Avenue, Dhaka-1000
... Appellant
(In C.A. No.11 of 2022)
Managing Director, Social Islami
Bank Limited, City Centre (19 th
Floor), 90/1, Motijheel C/A,
Dhaka-1000
... Appellant
(In C.A. No.12 of 2022
-Versus-
Homeland Footwear Limited,
represented by its Managing
Director, Mr. Amir Hossain and
others
....Respondents
(In all the appeals)
For the Appellants
(In C.A. No.10 of
2022)
: Mr. Shamim Khaled Ahmed, Senior
Advocate instructe d by Mr. Md.
Abdul Hye Bhuiyan, Advocate -on-
Record
For the Appellant
(In C.A. No.11 of
2022)
: Mr. Khan Mohammad Shamim Aziz,
Advocate instructed by Mr.
Mohammad Ali Azam, Advocate -on-
Record.
For the Appellant
(In C.A. No.12 of
2022)
Mr. Khan Mo hammad Shamim Aziz,
Advocate instructed by Mr.
Mohammad Ali Azam, Advocate -on-
Record.
For Respondent
Nos.1-2
(In all the cases)
Mr. Amir Hossain (In person)
For Respondent
Nos.3-4
(In C.A. No.11 of
2022)
Mr. Md. Abdul Hye Bhuiyan,
Advocate-on- Record
Respondent Nos.3-5
(In C.A. No.10 of
2022)
Not represented
Respondent Nos.5-6 Not represented 2
(In C.A. No.11 of
2022)
Respondent Nos.3-6
(In C.A. No.12 of
2022)
Not represented.
Date of Hearing : 25.07.2023, 26.07.2023 and
02.08.2023.
Date of Judgment 08.08.2023
J U D G M E N T
Md. Ashfaqul Islam, J: All these civil appeals by leave are
directed against the judgment and order dated 13.09.2020
passed by the High Court Division in Writ Petition No. 52
of 2020 making the Rule s absolute with a dir ection upon
the writ respondent Nos. 1 and 2 to remove the names of
the writ petitioners from the Credit Information Bureau
(in short, CIB) report immediately.
These 3 (three) civil appeal s are heard together and
disposed of by this single judgment.
Short facts are that, the present respondent Nos.1
and 2 herein as petitioners filed the aforesaid Writ
Petition being No.52 of 2020 before the High Court
Division challenging the publication of the ir names in
the CIB Report of Bangladesh Bank seeking direction upon
the writ respondent Nos.1 and 2 , (appellants herein) to
remove their names from the CIB report of Bangladesh Bank
stating, inter alia, that the writ petitioner No.1 is a 3
private limited company engaged in Manufacturing Footwear
Products as well as to export the domestic consumption as
same. The writ petitioner No.2 was the Managing Director
(shortly MD of the writ petitioner No.1's Company). Apart
from that, the writ petitioner No.2 is also the
proprietor of "M/S Homeland Plastic Industries" and "M/S
Amir Trading". During the course of business by the writ
petitioner No.1, the writ petitioner No.2 invested an
amount of Tk. 45,07,386.00/ - in writ petitioner No.1 ’s
company in the year 1999. However, the writ petitioner
No.1 failed to pay -off the said in vestment within the
stipulated time. In such a situation, the writ petitioner
No.2 filed an application under section 241 (v) of the
Companies Act, 1994 for winding up of the writ petitioner
No.1’s company for the failure to pay its debt to the
creditors before the High Court Division which gave rise
to Company Matter No.59 of 2001. After serving due notice
upon the writ respondents of the winding up proceedings,
the High Court Division ultimately, vide judgment and
order dated 21.07.2002, allowed the application and wound
up the writ petitioner No.1 ’s company. Against the above
judgment and order dated 21.07.2002 passed by the High 4
Court Division, the writ petitioner No.1 filed Civil
Petition for Leave to Appeal No. 1552 of 2002 before this
Division. This Di vision eventually vide judgment and
order dated 14.07.2003 dis missed the said Civil Petition
for Leave to Appeal and affirmed the judgment and order
passed in Company Matter No.59 of 2001.
Subsequently, the writ petitioner No.2 entered into
an agreement w ith the earlier management of writ
petitioner No.1's company on 17.07.2004 and in view of
the said agreement, the writ petitioner No.2 filed an
application before the High Court Division under section
253 of the Companies Act, 1994 for staying the winding up
proceedings and the High Court Division by its order
dated 18.07.2004 allowed the said application and stayed
the proceedings of winding up of the writ petitioner No.1
for a period of 6 (six) months resulting in maximum
shares of the previous Directors and Shareholders of the
writ Petitioner No.1 being transferred to the writ
petitioner No.2 and thereby the writ petitioner No.2
acquired more than 51% of the total share s holding the
writ petitioner No.1’s company. 5
Subsequently, on 21.10.2017, the said or der of stay
was extended perpetually and the writ petitioner No.2 was
allowed to carry on the business of the writ petitioner
No.1 and the company started running under the
stewardship of the writ petitioner No.2 as per the scheme
allowed by the High Court Division.
It has been further stated that, the writ petitioners
did not avail any credit facilities from any financial
institution after writ petitioner No.1’s company is wound
up. On 28.07.2019, the writ petitioner No.2 applied for
availing credit facil ities from National Credit and
Commerce (shortly NCC) Bank Ltd. for opening a Letter of
Credit (shortly LC) valuing USD 29,400.00 for his
proprietorship concern "M/s Homeland Plastic Industries".
But the NCC bank vide its letter dated 05.08.2019,
apprised the writ petitioner No.2 that, since his name
has been enlisted in the CIB , it was unable to make any
accommodation extending credit facilities. Having
learned, the writ petitioner No.2 made several
representations to Bangladesh Bank to let him know at
whose instance the writ petitioner’s name has been
reported in the CIB, but the writ respondent No.2, 6
Bangladesh Bank replied that it was not bound to disclose
the name of the creditor. Under the aforesaid facts and
circumstances, finding no other alternative efficacious
remedy, the writ petitioners filed the aforesaid writ
petition before the High Court Division and obtained
Rule.
The writ respondent Nos. 4 and 5 contested the Rule
by filing affidavit-in-opposition.
In due course, after hearing both the par ties a
Division Bench of the High Court Division made the Rule
absolute by the impugned judgment and order dated
13.09.2020.
Feeling aggrieved, by the judgment and order dated
13.09.2020 passed by the High Court Division, the present
appellants filed three separate Civil Petitions for leave
to appeal and ob tained leave giving rise to these
appeals.
Mr. Shamim Khaled Ahmed, the learned Senior Advocate
appearing on behalf of the appellant in Civil Appeal No.
10 of 2022 and Mr. Khan Mohammad Shamim Aziz, the learned
Advocate appearing on behalf of the appellants in Civil
Appeal Nos. 11 and 12 of 2022 submits that the High Court 7
Division erroneously failed to consider that writ
respondent No.2 having come to know from a letter dated
13.01.2020 issued by the wr it respondent No.4 , Social
Islami Bank Limited detailing latest composition of the
writ petitioner No.1 ’s company showing that the name of
the writ petitioner No.2 appeared in Form XII as holding
the position of Managing Director of the company as on
06.12.2015 and from the plaint of Artha Rin Suit No.22 of
2019 instituted by writ respondent No.5 , United Finance
Limited it was presumed that the writ petition er No.1’s
company was a defaulting borrower, and under the
provision of section 5 (Ga Ga) of the Bank Companies Act,
1991 as amended turned the writ petitioner No.2 also
defaulting borrower and, therefore, that there was no
illegality in reporting by the bank concerned the names
of the petitioners in the report of CIB of Bangladesh
Bank, as per section 27 (ka ka) (1) of Bank Companies
Act, 1991 as amended.
He further submits that the High Court Division
failed to consider that writ petitioner No.2 himself
admitted liability of the loan and failed to pay the
outstanding amount, as such the writ respondent No.2 has 8
no option but to send to requiring bank or financial
institution the name of the defaulting borrower from bank
and financial institution in the database of the CIB of
Bangladesh Bank after receiving the name of the creditor
banks.
He next submits that the High Court Division
misconceived that by the agreement dated 17.07.2004 all
the liabilities of the writ petitioner No.1’s company
were taken over by the earlier management. However, the
High Court Division failed to take note of the pivotal
fact that the liabilities of the writ petitioner No.1,
company to the writ petitioner No. 2 were not covered by
the said agreement at all and eventually continue to
attach with the writ petitioner No.1, company. Thus,
sending the name of the writ petitioner No.1, company to
CIB by the appellants is well founded under the
prevailing laws and rules. The name of the writ
petitioner No.2, however, appears in the CIB as the
respondent No.1 being his "
".
He also submits that the High Court Division erred in
law by holding that since under section 5 (Ga Ga) of the
Bank Companies Act, 1991 defaulting borrower means debtor 9
person or institution which the writ petitioner No.1 was
not defaulter because the High Court Division having
earlier purported to have fou nd that the writ petitioner
No.2 took over the man agement of writ petitioner No.1,
company unencumbered on 22.07.2004 on the ground that the
High Court Division was totally misconceived by holding
previous liability of the writ p etitioner No. 1, Company
were to be borne by its earlier management. It was
clearly settled principle of company law that liability
as well as asset of a company being a juristic person
belongs to the company as laid down by House of Lords in
Solomon versus Solomon [1897] AC 22 and followed in
Punjab Ali Pramanik's case reported in 29 DLR AD 185.
Mr. Amir Hossain (in person) appearing on behalf of
the respondent Nos. 1 -2 in all the cases and Mr. Md.
Abdul Hye Bhuiyan, the learned Advocate -on-Record
appearing on behalf of the responde nt Nos. 3 and 4 in
Civil Appeal No. 11 of 2022 made submissions in support
of the impugned judgment and order of the High Court
Division.
We have h eard the learned Advocates for the
appellants and Mr. Amir Hossain (in person) appearing on 10
behalf of the re spondent Nos. 1 -2. We have also p erused
the impugned Judgment and order of the High Court
Division and other materials on record carefully.
At the very outset we felt it proper to address first
on the question of maintainability in filing the
aforesaid writ petition as raised by the learned
Advocates for the appellants.
It's true that under section 27ka of the Act of 1991
no resignation of a director of a defaulting company can
be effected or he/she can transfer or sell out share
without the approval of it s creditor or financial
institutions. Record shows, none of the writ respondent
nos. 4 and 5 raised any claim of having liabilities
towards the writ petitioner no. 1 during the entire
winding-up proceedings initiated vides Company Matter No.
59 of 2001 and subsequent proceeding of its stay.
Further, from the order dated 18.07.2004 and
29.10.2017 passed by the High Court Division it further
appears that, while staying the winding up perpetually,
the scheme for taking over the management of writ
petitioner n o. 1, company transferring share by the
previous directors of writ petitioner no. 1 to writ 11
petitioner no. 2 was approved on the basis of the
agreement dated 17.07.2004 and writ petitioner no. 2
became its Managing Director on 22.07.2004. To date, (for
the last 16 years) the said order staying winding -up of
the writ petitioner no. 1 remained unchallenged by any of
the creditors who now raised the issue characterizing the
writ petitioners as defaulting -borrowers. Conversely,
within the very knowledge of writ respondent nos. 4 -5,
name of the writ petitioner no. 2 was entered into the
register of joint stock company and firm confirming him
as the Managing Director of writ petitioner no. 1,
company and basing on that very point, the learned
counsel for present appellant (writ respondent no. 4) has
very robustly asserted that, the name of the writ
petitioner no. 2 has rightly been referred for reporting
in the CIB since he is the Managing Director of writ
petitioner no. 1, company.
Now let us examine the very vit al point-in-issue in
the instant case as to whether both the writ petitioners
(respondent No. 1 and 2 herein) can be termed as
defaulting-borrowers under the purview of section 5 (ga
ga) of the Act of 1991. In this regard, all the 12
appellants in a chorus ass erted that, since the writ
petitioner no. 2 is holding 51% shares in writ petitioner
no. 1, company and writ petitioner no. 1 became the
defaulting-borrower and the same is the "
" of
writ petitioner no. 2, so both are defaulting -borrowers
and their names have rightly been referred under section
27(ka ka) of the Act of 1991 by the writ respondent nos.
4-5 to writ respondent no. 2, Bangladesh Bank for
reporting it in the CIB. Whereas, Mr. Amir Hossain’s (in
person) contention is that, the credit facilities if
taken, it was availed by the earlier management of writ
petitioner no. 1, company and the said liabilities will
never be vested upon writ petitioner no. 2 and in the
same vein, writ petitioner no. 1 cannot be termed as any
defaulting-borrower as well. He further avers that, since
no such creditors raised their liabilities against the
writ petitioner no. 1, company during the entire winding
up proceedings in spite of serving statutory notice of
the said winding up proceedings upon all the creditors so
at this stage (after long 18 years), they ( writ
respondent nos. 4-5) are totally precluded from levelling
this writ petitioner no. 1 as defaulting-borrower. 13
In this regard from the agreement dated 17.07.2004
and that of the order passed on 1 8.07.2004 staying the
winding-up proceedings made under Section 253 of the
Companies Act we find that in clause nos. 3, 4 and 7 of
the said agreement, it has clearly been set -out how the
management and share of the previous
shareholders/directors would be transferred to the writ
petitioner no. 2 and how the liability of writ petitioner
no. 1, company be resolved by earlier management. In the
agreement in particular, in clause no. 4 thereof, it has
clearly been outlined that, (writ petitioner no. 2)
”. And then in
clause no. 7, it has also been agreed by the party nos. 1
and 2 of the 2nd party to the said agreement to the effect
that: "
-
- -
- ”.
Now question may crop up, whether as per section 5 (
Ga Ga) of the Act of 1991, this writ petitioner no. 1,
company is any "
" of writ petitioner no. 2 and
as per explanation thereof (in section 5gaga) writ 14
petitioner no. 2 will be regarded as defaulting -borrower
for owning 20% above share s in writ petitioner no.1,
company. In the first place, what we view that, as per
section 5gaga of the Act of 1991 defaulting -borrower
means, debtor person or Institution -
) and in the above discussion, we find that writ
petitioner no. 2 took over the management of writ
petitioner no. 1, company totally unencumbered on
22.07.2004 when previous liability of the writ petitioner
no. 1, company will be borne by earlier management.
Further, it is admitted position that the writ
petitioner No. 2 since his stepping into the management
of writ petitioner no. 1, company has not availed any
loan from any creditors let alone writ respondent nos. 4-
5 and the High Court Division allowed the said
arrangement by staying the winding up proceedings. So
under no circumstances, can the writ petitioner No. 1 be
termed as defaulting-borrower so does the writ petitioner
no. 2 for being "
" of him for mere having 51%
shares holding in writ petitioner no. 1, company.
Invariably, it is not the true import of section
5gaga or 27 (kaka) to put a company sick for time 15
immemorial on the plea of defaulting -borrower when its
earlier liability is being effectively dealt with in the
court of law having sufficient security. Further, the
main objective of staying the winding up proceeding was
to rescue the company from the debt burden and to rebound
the company. But the action taken by the creditors has
totally jeopardized all its honest effort. If such a
hostile attitude continues by the creditor bank towards
the promising industries very industrialization in our
country would become a far cry.
More so, as has been stated earlier, the previous
management of the writ petitioner no. 1, company had
taken over the responsibility of squaring up all the
liability and that very commitment clearly embodied in
the conditions of the agreement which became the part of
the order of this court while staying the winding -up
proceeding. In such a situation, the writ respondent Nos.
4-5 and that of Bangladesh Bank rather should have played
a decisive role as of savior of writ petitioner No. 1,
company for the rapid economic growth of this country
when bo th writ respondent N os. 4 -5 have been pursuing
their claims in the court of law against their secured 16
loan. But from the manner the writ respondent No. 2 asked
for furnishing information about writ petitioner No. 2
from writ respondent N o. 4 clearly put it s regulatory
authority in the wane.
By all accounts, neither the writ petitioner No. 1
nor the writ petitioner No. 2 be termed as defaulting -
borrower within the meaning of sections 5gaga and 27kaka
of the Bank Companies, Act, 1991.
Now let us explore their involvement in providing
credit facilities to the writ petitioners and whether at
their instance the writ petitioners can be regarded as
defaulting-borrowers.
We find that, a money suit being Money Suit No. 53 of
1998 and upon a decree, it was initiated Money Decree
Case No. 12 of 2000 which then re -numbered as Artha
Execution Case No. 601 of 2003 which is now pending. By a
letter dated 04.12.2016 issued by writ petitioner no. 2,
it asserted that, the writ petitioner no. 2 admitted the
claim of writ respondent no. 4 of the loan of 31,00,000/-
and prayed for providing writ petitioner No. 1
installment to pay it off and even the writ petitioner 17
no. 2 gave a cheque amounting to taka 1,00,000/ - to
respondent no. 4 (though it is dated 04.06.2017).
It is admi tted position, writ respondent No. 4 did
not turn up to claim such liability in the winding up
proceedings. Then in the agreement dated 17.07.2004
annexed with the application for stay of the winding up
proceeding, it was agreed by the earlier manag ement that
the liability of the writ respondent No. 4 would be paid
off by them. Most importantly, the writ petitioner no. 2
was not any party to the suit or execution case. Also, it
appears that, earlier management to writ petitioner no.
1, company failed to liv e-up their commitment. Had it
been the case, then consequence will follow the creditor
would realize the default amount though filing case and
then through execution case which it has done and the
said loan is secured one from where one Rupali Bank
liquidated their claim by selling 'kha' scheduled
property out of three schedules appended in the schedule
of the execution case filed by the writ respondent no. 4.
Also, mere praying for waiver of loan taken by
earlier management per se does not make one defaul ting-
borrower when record shows, writ petitioner no. 2 has got 18
no loan liability with writ respondent no. 4 and only for
that neither the writ petitioner no. 1 nor the writ
petitioner no. 2 can be termed as defaulting-borrowers.
Last but essentially not t he least, from the
Affidavit-in-Opposition filed by writ respondent no. 2,
it manifests that, till 22.12.2019, the name of the writ
petitioner no. 2 had not been referred by writ respondent
no. 4 to report in the CIB. So, it is palpably clear
that, until 0 5.08.2019- that is, the date of refusal by
the NCC bank to accommodate credit facilities to the writ
petitioners, the name of the writ petitioner no. 2 was
not in the CIB list. So all the above material
proposition lead us to conclude that, the name of the
writ petitioners has been sent to the writ respondent no.
2 for enlisting in the CIB database for an ulterior
motive to deprive them to avail any credit facilities and
to run their business smoothly.
We find that for a loan amounting to taka
35,80,378.00/- availed by writ petitioner no. 1 and its
previous management, it filed Artha Rin Suit No. 22 of
2019 only on 10.01.2019 claiming taka 34,72,994.00/ - as
on 27.12.2018. Despite the fact that, the loan was 19
availed on 12.05.1999 and winding up proceeding of the
writ petitioner no. 1, company had been continuing in the
year 2001 but it did not raise any claim during that
period. Moreover, it shows from the plaint of the suit
that, former Managing Director of writ petitioner no. 1,
company has been impleaded as defendant no. 2 in the said
suit, despite the facts that, at the time of filing of
the suit he was no more in the company as the writ
petitioners and writ respondent no. 4 supplied the
current composition of the Board of Directors in the
company in their respective Supplementary -Affidavits
which conversely proves that, the writ petitioner no. 2
had no loan liability towards writ petitioner no. 1,
company.
The learned counsel for the appellants gave much
emphasis on the application of section 27kaka(4) of the
Bank Companies Act, 1991 that asks the creditor to file
suit against its defaulting -borrower for which it has
compelled to file that suit. Since in the agreement dated
17.07.2004, the name of the writ respondent No. 5 is
absent showing it as any credit or nor it filed the suit
against the writ petitioner no. 2 and lastly, since in 20
the said agreement the writ petitioner no. 2 had been
exonerated of any liability of writ petitioner no. 1,
company so under no circumstances, can these writ
petitioners be ter med as defaulting -borrowers at its
instance. Obviously, th e writ respondent No. 5 could
realize its outstanding dues if any, from the earlier
management of the writ petitioner no. 1, company which it
is still pursuing.
Though, Bangladesh Bank, writ respondent no. 2
claimed to have played its role in reporting the name of
the writ petitioner in the CIB database in compliance
with the provision of Chapter IV of Bangladesh Bank
Order, 1972 as well as section 27kaka (2) of the Act of
1991 but in fact, Banglades h Bank has no role to play
apart from sending the name of the defaulting -borrowers
to all the banking company and financial institutions in
the country under the said provisions of law.
Since the writ petitioner no. 2 after taking the
responsibility of t he writ petitioner no. 1, company on
22.07.2004 has not availed any credit facilities for writ
petitioner no. 1, company and since in the agreement
executed by the writ petitioner no. 2 with its earlier 21
management of writ petitioner no. 1, the writ petitioner
no. 2 had not taken any liabilities of its creditor and
there has been clear stipulation in the said agreement
that, the previous management will bear all the
liabilities of the creditor where in the name of the
creditors has also been mentioned so the name of the writ
petitioners can never be shown in the CIB. Furthermore,
since the very agreement that has been annexed to the
application for stay of the winding up proceeding became
part of the order of the High Court Division, so under no
circumstances, the writ petitioners can be termed as any
defaulting-borrower. If there had no such stipulation in
the agreement retaining the liabilities of earlier
management towards their creditor in that event, the
facts would have been otherwise. Also, since the or der
dated 18.07.2004 passed by the High Court Division is
still in force so under no circumstances, the writ
petitioner no. 1 and the writ petitioner no. 2 can be
termed as any defaulting -borrower within the meaning of
section 5gaga of the Act of 1991.
As it has been observed in the foregoing paragraphs
that, though the loan of the writ respondent nos. 4 and 5 22
towards the writ petitioner no. 1 has surfaced soon after
issuance of the rule when Bangladesh Bank filed
Affidavit-in-Opposition and till then th ose two
respondents kept silent for last 18 years but since they
have already taken proper steps in realizing the dues
from the writ petitioner no. 1, company and its earlier
management so there has been no scope to ho ld the writ
petitioners for the liabil ity of such loan and in the
same vein these petitioners cannot be regarded as any
defaulting-borrower.
The borrower who takes over the management
unencumbered can in no way be responsible of the previous
liabilities which must be vested upon the previou s
management. In the instant case , the respondent no. 1,
company did not avail any loan after the new management
took over the charge of it so, as per the agreement and
that of the order of the High Court Division staying the
winding-up proceeding , they ca nnot be treated as
defaulting-borrowers.
We, therefore, hold that in no way the respondent
Nos. 1 and 2 can be treated as defaulting -borrower and
the High Court Division has rightly declared their 23
enlistment in the CIB report illegal directing to remove
their names from the CIB report . The judgment and order
passed by the High Court Division is elaborate , speaking
and well composed. We are not inclined to interfere with
the same.
Accordingly, all these appeals are dismissed,
however, without any order as to costs.
CJ.
J.
J.
J.
The 08th August, 2023
/Ismail,B.O./*4412*
|
1
IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH AAppppeellllaattee DDiivviissiioonn
PPRREESSEENNTT
Mr. Justice Hasan Foez Siddique, C. J.
Mr. Justice M. Enayetur Rahim Mr. Justice Jahangir Hossain
CIVIL APPEAL NOS. 145-151 OF 2016
(From the judgment and order dated 13th of February 2014 passed by the High Court
Division in Writ Petition Nos. 1606-1612) .
Government of Bangladesh, represented by the Secretary,
Bangladesh Parliament, Sher-e-Bangla Nagar, Dhaka and
others
..............Appellants.
(In all the cases)
=Versus=
Md. Masud Rana
..............Respondent.
(In C.A.No.145 of 2016)
Md. Abu Bakar Siddique ..............Respondent
(In C.A.No.146 of 2016)
Md. Hamidul Islam ..............Respondent.
(In C.A.No.147 of 2016)
Md. Mokbular Rahman ..............Respondent
(In C.A.No.148 of 2016)
Md. Zahed Ali ..............Respondent
(In C.A.No.149of 2016)
Md. Asraful Islam ..............Respondent
(In C.A.No.150 of 2016)
Begum Samena Khatun ..............Respondent
(In C.A.No.151 of 2016)
For the Appellants :
(In all the appeals)
Mr. A. M. Amin Uddin, Attorney General, with
Mr. Mohammad Saiful Alam, Assistant Attorney
General¸ instructed by Mr. Haridas Paul,
Advocate-on-Record.
For the Respondent : (In C.A.No.145 of 2016) Mr. Probir Neogi, Senior Advocate with
Ms. Tania Amir, Senior Advocate, instructed by
Mr. Mvi. Md. Wahidullah, Advocate-on-Record
For the Respondents : (In C.A.No.146-151 of 2016) Mr. Zulhas Uddin Ahmed, Advocate, instructed
by Mr. Mvi. Md. Wahidullah, Advocate-on-
Record
Date of hearing :
The 8th and 16th day of August, 2023
Date of judgment :
The 31st day of August, 2023
JUDGMENT
M. Enayetur Rahim, J: These civil appeals, by leave, are
directed against the judgment and order dated 13.02.2014
passed by the High Court Division in Writ Petition Nos.1606-
1612 of 2010 making the Rules absolute. All the appeals have
been heard together and they are being disposed of by this
common judgment.
2
The facts, relevant for disposal of these appeals, in
short, are that the petitioner in writ petition No. 1606 of
2010, presently respondent was appointed as “Receptionist”
and petitioners in writ Petition Nos. 1607-1611 of 2010,
presently respondents were appointed as “MLSS” and the
petitioner in Writ petition No. 1612 of 2010, presently
respondent was appointed as “Proof Reader” of Bangladesh
Parliament Secretariat following the Recruitment Rules of
Bangladesh Sangshad Sachibaloy, 1994.
In the writ petitions, it was contended that in response
to the advertisement published in the Daily Newspapers
inviting application for several posts for the office of
Bangladesh Parliament Secretariat, the writ petitioners
applied for their respective vacant posts. Written examination
and viva-voce was held and upon duly concluding all the
appointment procedure, the writ petitioners received their
respective appointment letters as probationary employee for a
period of 02 (two) years. After successful completion of two
years probationary period they were confirmed effective from
the date of their joining in the said service considering
their satisfactory performance under Rule 6(3) (Ka) of the
Sangshad Sachibaloya, Employees and Officers Appointment
Rules, 1994.
All of a sudden the writ respondent No. 2 issued a letter
dated 18.02.2010 relieving all the writ petitioners from their
respective services.
Being aggrieved by the said order dated 18.02.2010 all the
writ petitioners moved before the High Court Division by
filing different writ petitions.
3
A Division Bench of the High Court Division upon hearing
all the Rules together by a common judgment and order dated
13.02.2014 made all the Rules absolute.
Feeling aggrieved by the said judgment and order
passed by the High Court Division, the writ-respondents as
petitioners filed Civil Petitions for Leave to Appeal Nos.
1519, 1522-1526 and 1530 of 2014 before this Division and
leave was granted on 07.02.2016. Hence, these appeals.
Mr. A.M. Amin Uddin, learned Attorney General,
appearing on behalf of the appellants submits that the High
Court Division erred in law in failing to appreciate that the
impugned order was issued pursuant to a decision adopted in a
proceeding of the Parliament on the basis of recommendations
made by a Parliamentary Committee formed by the Speaker under
Article 76(2) (C) (d) of the Constitution as well as under
Rules laid down in the chapter XXVI of the Rules of Procedure
of Parliament to enquire into the allegations relating to
corruption, misuse of power, wastage of public fund by the
then Speaker, Barrister Mohammad Jamiruddin Sirker, and the
Proceedings of the Parliament is immuned from challenge under
Article 78 of the Constitution and as such, the impugned
judgment and order passed by the High Court Division is liable
to be set aside.
Learned Attorney General further submits that as per
section 14 of the Sangsad Sachibaloy Act, 1994, the Speaker is
answerable to the National Parliament for all functions and
actions relating to National Parliament Secretariat and any
decision of the National parliament taken in its proceedings
having been immuned from challenge and in such view of the
matter, the impugned order issued pursuant to the said
proceedings cannot be called in question in any court of law.
4
He also submits that the High Court Division failed to
appreciate that the recruitment process was void ab initio
since Parliamentary Committee upon its enquiry found that the
recruitment process of the respondents-writ petitioners was
tainted with serious irregularities, corruption, misuse of
power and violation of the injunction imposed by the then
Ministry of Establishment committed by the then Speaker of 8th
Parliament upon which the Parliament in its proceeding adopted
a decision to cancel the said appointments and in such view of
the matter, the writ petitioners accrued no vested right and
they do not come under the ambit of the Service Rules of
Sangsad Sachibalay, Namely, Sangsad Schibalay Karmokarta-O-
Karmochary Neog Bidhimala, 1994 and Jatio sangsad Sachibalay
Kormokarta-O-Karmochary (Sringkhola-O-Appeal) Bidhimala, 2005
and hence, no show cause notice or departmental proceedings is
required to relieve the writ-petitioners from their service.
Learned Attorney General also submits that the High Court
Division erred in law in failing to appreciate that it is a
settled principle of law that if the appointment is made
without following the rules and procedure, no vested right is
accrued and since the respondents-writ-petitioners got their
respective appointment as a result of irregularities and
corrupt practice, they have not therefore acquired any vested
right in their service on such illegal appointments. Learned
Attorney General having referred to the case of Nuruzzaman
(Md) and others Vs. Bangladesh others 64 DLR (HCD)406, 20 BLC
(AD) 246, Rina Rani Sutradhar and others Vs. Bangladesh 20
BLC (2015) (AD) 246 (para II), Pankaj Gupta Vs. The State of
Jammu and Kahsmir reported in 8 SCC (2004) 353 and the
Secretary, State of Karnataka Vs. Umadevi (2006)4 SCC, 01)
submits that the illegality and irregularity are so intermixed
5
with the whole process of selection that it becomes impossible
to sort-out right from wrong and vice versa, the rules of
natural justice cannot be put in a Straight Jacket [Md. Fazle
Rabbi Mia Vs. Professor Aftab Uddin Ahmed and others, 2 LNJJ
(2013) 46] and as such, the impugned judgment is liable to be
be set aside.
Per contra, Mr. Probir Neogi, learned Senior Advocate and
Mr. Zulhas Uddin Ahmed, learned Advocate appearing on behalf
of the respondents made submissions in support of the impugned
judgement and order of the High Court Division. In addition,
it has been submitted that Article 78 of the Constitution only
protects "proceedings of the parliament" from judicial review.
The impugned orders do not come within the purview of
parliamentary proceedings. It has been further submitted that
the High Court Division categorically found the writ
petitioners had "no hand" in the recruitment process. The
Parliament Secretariat being independent and not being under
any Ministry or Department of any Ministry, the appointments
could not be held to be violative of any prohibitive order of
the Ministry of Establishment and the appointments having been
made in accordance with the provisions of the Bangladesh
Parliament Secretariat Recruitment Rules 1994, the contention
as to the petitioners' appointments being void ab-initio as
propagated by the appellants does not have a sound leg to
stand upon. For the same reason, the decision reported in 2
LNJ (2013) 46 as relied upon by the appellant in reason No. 4
are not at all attracted to the present case and, as such, the
judgment and order passed by the High Court Division does not
call for any interference by this Division.
We have considered the rival submissions of the learned
Advocates for the respective parties, perused the impugned
6
judgment and order of the High Court Division and the
materials as placed before us.
In the instant cases it is undeniable fact that the 9th
Parliament in its 1st session on 19th March, 2009 adopted a
resolution to make inquiry with regard to the illegalities and
irregularities of the appointments, misuse of power,
corruption, wastage of public fund by the then Speaker
Barrister Mohammad Jamiruddin Sirker and the Speaker on that
day on the basis of the decision adopted in the House, formed
a 12 members inquiry committee amongst the Members of
Parliament headed by Mr. Md. Fazle Rabbi Mia, M.P.(Gaibandha-
5). The said parliamentary inquiry committee after holding
inquiry placed its report before the Parliament making some
recommendations. The relevant portion of the recommendations
are as follows:
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30.06.2007 ch©šÍ ewa©Z K‡i miKvix †KvlvMvi †_‡K Zv‡`i †eZb fvZv cÖ`vb K‡i ¸iæZi Avw_©K
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7
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On 13.10.2009 a good number of Members of Parliament
including both ruling party and the oppositions discussed on
the said report. At the time of discussion on the report,
various suggestions and recommendations were given by the
Members of Parliament and ultimately, the report was accepted
by the House.
The relevant proceedings of the Parliament is as follows:
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8
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huviv G cÖ¯Ív‡ei c‡ÿ Av‡Qb, Zuviv Ònu¨vÓ ejyb|
[aŸwb‡fvU MÖn‡Yi ci-]
huviv G cÖ¯Ív‡ei wec‡ÿ Av‡Qb, Zuviv ÒbvÓ ejyb|
[aŸwb‡fvU MÖn‡Yi ci-]
Avgvi g‡b nq, Ònu¨vÓ Rqhy³ n‡q‡Q, Ònu¨vÓ Rqhy³ n‡q‡Q, Ònu¨vÓ Rqhy³ n‡q‡Q|
AZGe, mv‡eK gvbbxq ¯úxKvi e¨vwióvi gyn¤§` RwgiDwÏb miKv‡ii 9g RvZxq msm‡`i
msm` m`m¨ c` LvwiR Kiv msµvšÍ cÖ¯Íve e¨ZxZ Ab¨vb¨ cÖ¯Íve¸‡jv msm‡` me©m¤§wZµ‡g M„nxZ
n‡jv|Ó
It is pertinent to mention here that Mr. Rashed Khan
Manon, M.P. proposed to adopt the following proposal under
rule 292 of the "evsjv‡`k RvZxq msm` Kvh©cÖYvjx-wewa' t
""(K) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi, mv‡eK †WcywU ¯úxKvi Rbve AvLZvi
nvwg` wmwÏKx Ges mv‡eK Pxd ûBc †Lv›`Kvi †`‡jvqvi †nv‡mb Awbqg I `~bx©wZ K‡i †h A_© AvZœmvr Ges AcPq K‡i
miKv‡ii †h Avw_©K ÿwZ K‡i‡Qb Zv AvBbx e¨e¯’v MÖn‡Yi gva¨‡g Zv‡`i wbKU †_‡K Av`vq Kiv nDK:
(L) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi miKvwi wewa weavb Agvb¨ K‡i wbqg ewnf~©Z
cš’vq ‡h mKj Kg©KZv©/Kg©Pvix wb‡qvM w`‡q‡Qb ‡m mKj wb‡qvM evwZj Kiv nDK:''
Pursuant to the said resolution of the parliament, the
Secretariat of Bangladesh Jatio Shangshad cancelled the
appointment of the respective writ petitioners vide its
official letter on 18.02.2010.
9
Learned Attorney General candidly submits that since the
impugned order was issued pursuant to a decision adopted in a
proceeding of the Parliament on the basis of the
recommendation made by the Parliamentary Committee, formed by
the Speaker under Article 76 (2)(c)(d) of the Constitution as
well as under the Rules laid down in Chapter XXIV of the Rules
of Parliament as such the proceedings as well as the decision
taken on the basis of such proceedings is immuned from
judicial review as per provision of Article 78 of the
Constitution.
The Article 78 (1) of the Constitution speaks as follows:
""msm‡`i Kvh©avivi ˆeaZv m¤ú‡K© ‡Kvb Av`vj‡Z cÖkœ DÌvcb Kiv hvB‡e bv|Ó
[The validity of the proceedings in parliament shall not be questioned in any
Court].
Mr. Probir Neogi, Learned Senior Advocate, appearing for
the writ petitioners-respondents submits that in the instant
cases since the service of the writ petitioners-respondents
have been made permanent following the relevant Service Rules,
and since they have been serving for a quite long period, they
cannot be dismissed from the service without following the
relevant Service Rule, i.e. msm` mwPevjq Kg©KZ©v I Kg©Pvix wb‡qvM wewagvjv, 1994 and
the doctrine of parliamentary privilege will not be applicable
in these particular cases.
In view of Article 78(1) of our Constitution the
proceedings in Parliament shall not be questioned in any
Court.
However, a pertinent question is required to be addressed
that in what circumstances and situations Court can exercise
its power under judicial review on a Parliamentary proceeding,
and how far its proceeding is immuned from judicial review.
10
In the case of Raza Ram Paul vs. Honb’le Speaker,
Loksobha [MANU/SC/0241/2007=Supreme Court cases, 2007, Vol.
iii (2007)3 SCC page-184], the Supreme Court of India has
dealt with the issue of parliamentary privilege and having
considered of its earlier various judgments/decisions held
that no power is absolute but subject to checks and balances and judicial review. In
the said case, the Supreme Court of India has formulated the
principles relating to the parameters of judicial review in
relation to the exercise of parliamentary provisions:
“Summary of the principles relating to parameters of
judicial review in relation to exercise of parliamentary
provisions:
431. We may summarise the principles that can be culled
out from the above discussion. They are:
(a) Parliament is a coordinate organ and its views do
deserve deference even while its acts are amenable to judicial
scrutiny;
(b) The constitutional system of government abhors
absolutism and it being the cardinal principle of our Constitution
that no one, howsoever lofty, can claim to be the sole judge of the
power given under the Constitution, mere coordinate
constitutional status, or even the status of an exalted
constitutional functionaries, does not disentitle this Court from
exercising its jurisdiction of judicial review of actions which
partake the character of judicial or quasi-judicial decision;
(c) The expediency and necessity of exercise of power or
privilege by the legislature are for the determination of the
legislative authority and not for determination by the courts;
(d) The judicial review of the manner of exercise of power of
contempt or privilege does not mean the said jurisdiction is being
usurped by the judicature;
(e) Having regard to the importance of the functions
discharged by the legislature under the Constitution and the
majesty and grandeur of its task, there would always be an
initial presumption that the powers, privileges, etc. have been
11
regularly and reasonably exercised, not violating the law or the
constitutional provisions, this presumption being a rebuttable one;
(f) The fact that Parliament is an august body of co-ordinate
constitutional position does not mean that there can be no
judicially manageable standards to review exercise of its power;
(g) While the area of powers, privileges and immunities of
the legislature being exceptional and extraordinary its acts,
particularly relating to exercise thereof, ought not to be tested on
the traditional parameters of judicial review in the same manner
as an ordinary administrative action would be tested, and the
Court would confine itself to the acknowledged parameters of
judicial review and within the judicially discoverable and
manageable standards, there is no foundation to the plea that a
legislative body cannot be attributed jurisdictional error;
(h) The judicature is not prevented from scrutinising the
validity of the action of the legislature trespassing on the
fundamental rights conferred on the citizens;
(i) The broad contention that the exercise of privileges by
legislatures cannot be decided against the touchstone of
fundamental rights or the constitutional provisions is not correct;
(j) If a citizen, whether a non-Member or a Member of the
legislature, complains that his fundamental rights under Article
20 or 21 had been contravened, it is the duty of this Court to
examine the merits of the said contention, especially when the
impugned action entails civil consequences;
(k) There is no basis to the claim of bar of exclusive
cognizance or absolute immunity to the parliamentary
proceedings in Article 105(3) of the Constitution;
(l) The manner of enforcement of privilege by the legislature
can result in judicial scrutiny, though subject to the restrictions
contained in the other constitutional provisions, for example
Article 122 or 212;
(m) Article 122(1) and Article 212(1) displace the broad
doctrine of exclusive cognizance of the legislature in England of
exclusive cognizance of internal proceedings of the House
rendering irrelevant the case-law that emanated from courts in
that jurisdiction; inasmuch as the same has no application to the
system of governance provided by the Constitution of India;
12
(n) Article 122(1) and Article 212(1) prohibit the validity of
any proceedings in legislature from being called in question in a
court merely on the ground of irregularity of procedure;
(o) The truth or correctness of the material will not be
questioned by the court nor will it go into the adequacy of the
material or substitute its opinion for that of the legislature;
(p) Ordinarily, the legislature, as a body, cannot be accused
of having acted for an extraneous purpose or being actuated by
caprice or mala fide intention, and the court will not lightly
presume abuse or misuse, giving allowance for the fact that the
legislature is the best judge of such matters, but if in a given
case, the allegations to such effect are made, the court may
examine the validity of the said contention, the onus on the
person alleging being extremely heavy;
(q) The rules which the legislature has to make for
regulating its procedure and the conduct of its business have to
be subject to the provisions of the Constitution;
(r) Mere availability of the Rules of Procedure and Conduct
of Business, as made by the legislature in exercise of enabling
powers under the Constitution, is never a guarantee that they
have been duly followed;
(s) The proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are not
protected from judicial scrutiny;
(t) Even if some of the material on which the action is taken
is found to be irrelevant, the court would still not interfere so long
as there is some relevant material sustaining the action;
(u) An ouster clause attaching finality to a determination
does ordinarily oust the power of the court to review the decision
but not on grounds of lack of jurisdiction or it being a nullity for
some reason such as gross illegality, irrationality, violation of
constitutional mandate, mala fides, non-compliance with rules of
natural justice and perversity.
432. It can now be examined if the manner of exercise of
the power of expulsion in the cases at hand suffers from any
such illegality or unconstitutionality as to call for interference by
this Court.” (Underlines supplied).
13
In view of the above propositions, Courts power of
judicial review on the proceedings of Parliament is not
absolutely ousted. In certain facts and circumstance, in
particular on the grounds of lack of jurisdiction or it being
a nullity for some reasons such as gross illegality,
irrationality, violation of constitutional mandate, mala
fides, non-compliance with rules of natural justice and
perversity, Court has the jurisdiction to exercise its power
under judicial review.
Let us now consider the submissions of learned Attorney
General in the light of the above principles coupled with the
facts and circumstances of the present case.
From the facts as it reveals in the instant cases that
the Parliament in its sessions adopted a resolution to make
inquiry with regard to the alleged illegal and irregular
appointments made by the then Speaker Mohammad Jamiruddin
Sirker and accordingly, an inquiry committee was formed.
Thereafter, the said inquiry committee after holding an
inquiry placed its report before the Parliament and an open
discussion was held on the said inquiry report by the members
of Parliament and, thereafter, the Speaker put the resolution
proposed by Mr. Rashed Khan Manon, M.P. before the House for
adoption and the House had adopted the said resolution
cancelling all the illegal appointments, and pursuant to the
said resolution, the impugned order has been issued and
communicated by the Parliament Secretariat to the respective
writ petitioners. The learned Advocates for the writ
petitioners-respondents have failed to show us that in taking
such recourse by the Parliament, the Parliament or the Speaker
has violated any rule of Rules of Procedure of Parliament as
well as the Constitution. The House and the inquiry committee
14
discussed various aspects on the issue in question. Since the
Constitution and Rules of Procedure have not been violated in
the proceeding of Parliament, it is our considered view that
there is no scope of judicial review to adjudicate the
propriety of the said proceedings and resolution adopted by
the Parliament and, as such, we have no hesitation to accept
the submission of the learned Attorney General that in these
particular cases the impugned decision and the above
proceedings of the Parliament is immuned to be questioned
before any Court.
The learned Advocates for the writ petitioners-
respondents have tried to convince us that before taking the
impugned action cancelling the appointments of the respective
respondents, they were not given any opportunity of being
heard and thereby principle of natural justice has been
violated, since their service has been confirmed by the
authority as per relevant Service Rules.
It is now well settled that if the appointments have been
made without following the Rules of Procedure, the concerned
employees have not acquired any vested right in the office on
the basis of such irregular and illegal appointment. In the
case of Nuruzzaman Md. and others vs. Bangladesh and others,
reported in 64 DLR (HC) 406 it has been held that:
“Since the appointments have been made without following the rules
and procedures, and in the inquiry report it has been opined that the
petitioners managed to get their appointments by way of irregularities and
corrupt practice, we are of the view that the petitioners have not acquired any
vested right in the office on the basis of their appointments. There is no
illegality and irregularity in the order of cancellation as made by the
respondents”.
The High Court Division in making the above observations
relied on the case of Pankaj Gupta vs. the State of Jammu and
15
Kashmir, reported in 8 SCC (2004)353, wherein it has been held
that:
“No person illegally appointed or appointed without following the
procedure prescribed under the law is entitled to claim that he should be
continue in the service.”
The above judgment of the High Court Division has been
affirmed by this Division in Civil Petition for Leave to
appeal No. 245-152 of 2003, reported in 20 BLC (AD) 246
wherein this Division has held that:
“Considering the report of the inquiry committee, the Government
cancelled the order of appointments and that it could not be said that letter
impugned before the High Court Division was arbitrary. The High Court
Division further found that the appointments had been made without following
the rules and procedures and that in the inquiry report it had been opined that
the petitioners managed to get their appointments by way of irregularities and
corrupt practice. The High Court Division also found that the petitioners had
not acquired any vested right in the office on the basis of their appointments.
Therefore, the High Court Division concluded that there was no illegality or
irregularity in the order of cancellation made by the respondents.
The finding of the High Court Division having been based on proper
appreciation of law and fact do not call for interference.”
In the case of Md. Fazle Rabbi Mia vs. Aftab Uddin Ahmed
and others, reported in 2 LNJ (2013) 46, a Division Bench of
the High Court Division has held that-there is no violation of the rules of
natural justice wherein illegalities, irregularities, arbitrariness and abuse of power in the
process of creating of posts, selection and appointments are so intermixed that it becomes
impossible to sort out the right from wrong and vice versa.
In the Case of Krishan Yadav and Ors. vs. State of
Haryana and Ors.[Manu/SC/0456/1994] the Supreme Court of India
having found that the selection was done without interview,
16
fake and ghost interviews, tempering with the final records,
fabricating documents and forgery has observed as under:
“It is highly regrettable that the holders of public offices both big and
small have forgotten that the offices entrusted to them are sacred trusts. Such
offices are meant for use and not abuse. From a Minister to a menial everyone
has been dishonest to gain undue advantages. The whole examination and the
interview have turned out to be farcical exhibiting base character of those who
have been responsible for this sordid episode. It shocks our conscience to come
across such a systematic fraud. It is somewhat surprising the High Court
should have taken the path of least resistance stating in view of the destruction
of records it was helpless. It should have helped itself. Law is not that
powerless.
In the above circumstances, what are we to do? The only proper
courses open to us is to set aside the entire selection. The plea was made that
innocent candidates should not be penalised for the misdeeds of others. We are
unable to accept this argument. When the entire selection is stinking,
conceived in fraud and delivered in deceit, individual innocence has no place
as “Fraud unravels everything”. To put it in other words, the entire selection
is arbitrary. It is that which is faulted and not the individual candidates.
Accordingly we hereby set aside the selection of Taxation Inspectors.
The effect of setting aside the selection would mean the appointments
held by these 96 candidates (including the respondents) will have no right to
go to the office. Normally speaking, we should require them to disgorge the
benefit of these ill-gotten gains. That means they will have to repay the entire
salary and perks which they have received from the said office. But, here we
show a streak of sympathy. For more than 4 years they were enjoying the
benefit of “office”. The proper lesson would be learnt by them if their
appointments are set aside teaching them that dishonesty could never pay.
All these efforts by us are aimed at cleansing the public administration.
No doubt, it may be stupendous task but we do hope this small step will make
great strides in the days to come. Accordingly, the appeals stand allowed.”
(Underlines supplied).
In the case of Union of India Vs. J.N. Sinha
(MANU/SC/0500/1970) the Supreme Court of India held that rules of
natural justice are not attracted in such a case where the appropriate authority forms the
requisite opinion bona fide and its opinion cannot be challenged before the Courts. In the
17
case of Baikantha Nath Das and others vs. Chief District
Medical Officer, Baripada and others [MANU/SC/0193/1992] it
has been held that as action had been taken on subjective satisfaction of
Government, there is no room for importing facet of natural justice in such a case.
In view of the above propositions, we are unable to accept
the submission of Mr. Neogi that in cancelling the order of
appointments of the writ petitioners, which were the result of
corrupt, illegal and male practice, the principle of natural
justice has been violated.
In the case of Jagit Singh vs. State of Hariyana, reported
in (2006) 11 SCC 1, the Supreme Court of India has held that
the principles of natural justice are not immutable but are flexible; they cannot be cast in a
rigid module and put in a straitjacket and the compliance therewith has to be considered in
the facts and circumstances of each case.
Section 5(1) and section 14 of the RvZxq msm` mwPevjq AvBb, 1994
are as follows:
""msm` mwPevj‡qi KZ„©Z¡- 5| (1) msm` mwPevj‡qi cªkvmwbK `vwqZ¡ ¯úxKv‡ii Dci b¨¯Í _vwK‡e|
and
msm‡`i wbKU ¯úxKv‡ii `vwqZ¡- 14| msm` mwPevj‡qi hveZxq Kg©Kv‡Ûi Rb¨ ¯úxKvi msm‡`i
wbKU `vqx _vwK‡eb| Ó
This Division in the Case of Maves Jasmin and others vs.
Ruhul Amin, reported in 26 BLC (AD)239 has observed that:
“The ordinary rule of construction of a statute must be construed in
accordance with the language used depending upon the context. The Court
should adopt purposive interpretation of the statute to articulate the felt
necessities of the time. Article 79 of the constitution has been provided with the
object that the Secretariat attached to the parliament should have staff, which
should be under the effective control with the head of the parliament. The idea
is to crystallise the position regarding supremacy of the Speaker and to give
18
constitutional authority. The Speaker is the framer, operator and interpreter of
the Rules and consequently he can amend the Rules from time to time following
the related laws.”
If we consider the provisions of sections 5(1) and 14 of
the RvZxq msm` mwPevjq AvBb, 1994 coupled with above proposition of law,
then it would be abundantly clear that the Speaker of the
Parliament has been entrusted with all the administrative
power of the Parliament Secretariat but at the same time he or
she is answerable to the House for his or her conduct and
activities relating to "msm` mwPevj‡qi hveZxq Kg©KvÛ' and, as such, the
House in taking the action on the illegal conduct/activities
of the Ex-Speaker did not violet any Rules of Procedure of the
Parliament or any provision of the Constitution.
Having considered and discussed above, we find merit in
all the appeals. Accordingly, all the appeals are allowed. The
impugned judgment and order passed by the High Court Division
is set aside.
However, there is no order as to costs.
C. J.
J.
J.
B.S./B.R./*Words-5,583*
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 518 OF 2017.
(From the judgment and decree dated 18.06.2013 passed by the
High Court Division in First Appeal No.59 of 2010)
Shafika Chowdhury and others :
Appellants.
=Versus=
Badrul Amin @ Manu Sardar and others :
Respondents.
For the Appellant :
Mr.Nozrul Islam Chowdhury,
Senior Advocate, instructed
by Mr. Md. Zahirul Islam,
Advocate-on-Record.
For the Respondent No.1:
Mr. Md. Nurul Amin, Senior
Advocate, instructed by Mr.
M. Soyeb Khan, Advocate-
on-Record.
For the Respondent No.2 :
Mr. Waliul Islam, Advocate-
on-Record.
Respondent No.3 :
Not represented.
Date of hearing : 04.01.2023 & 10.01.2023
Date of judgment : 17.01.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal is
directed against the judgment and decree dated
18.06.2013 passed by the High Court Division in
First Appeal No.59 of 2010 reversing those dated
25.11.2009 passed by the Joint District Judge,
First Court, Dhaka in Title Suit No.187 of 2008. 2
The relevant facts, for the disposal of this
appeal, are that the respondent No.1 filed Title
Suit No.187 of 2008 in the First Court of Joint
District Judge, Dhaka, praying for declaration of
his title in respect of the suit land stating
that one Nurur Rahman Chowdhury took lease of suit
land by lease deed No.1104 dated 08.07.1976 from
the then DIT, at present, RAJUK. He constructed
structure thereon. He sold the suit land to the
plaintiff at a consideration of Tk.3,70,375.00 by
a registered deed dated 18.4.1978. He got sale
permission from the RAJUK on 26.9.1977. The
plaintiff got his name mutated in 2006 and paid
rents and taxes. The defendants claimed that Nurur
Rahman Chowdhury did not sell the suit property.
Accordingly, the plaintiff lodged G.D. No.83 dated
01.11.2007 with Uttara Police Station. The
plaintiff came to know from the RAJUK that the
defendants applied for mutation of their names
though their predecessor Nurur Rahman Chowdhury
had sold the suit land to the plaintiff. Hence,
the plaintiff has filed this suit.
The defendant appellants contested the suit
contending that Nurur Rahman Chowdhury got lease 3
of the suit land from D.I.T (now RAJUK). He died
on 20.05.1986 leaving behind wife, three sons and
two daughters, who, on 11.06.2006, applied to the
RAJUK for mutation of their names and, accordingly
mutation was made in their names. One Abu Sayeed
Bepari made an attempt to grab the property by
force. The matter was referred to the law
enforcing authority and Abu Sayeed Bepari, on
26.9.2005, executed a “nadabipatra” in favour of
the defendants admitting the title of the
defendants in the suit land. One Hosne Ara Daud,
on 17.01.1993, instituted a suit for specific
performance of contract stating that Nurur Rahman
Chowdhury came to an agreement for sale of the
suit land with her which was dismissed. The
defendants came to know that, on 26.06.2003, one
Sardar Abdur Rahman filed Title Suit No.65 of 2005
for declaration of his title in the suit land. The
said suit was dismissed on 26.06.2007. The instant
suit has been filed by forging sale permission
from the RAJUK. The defendants made boundary wall 4
and constructed tin-shed in the suit land. The
suit should be dismissed.
The trial Court dismissed the suit. The
plaintiff preferred First Appeal No.59 of 2010 in
the High Court Division. The High Court Division,
upon ex-parte hearing of the plaintiff, by its
judgment and decree dated 18.06.2013 allowed the
appeal upon setting aside the judgment and decree
of the trial Court.
Against the judgment and decree passed by the
High Court Division the defendants have preferred
this appeal upon getting leave.
Mr. Nozrul Islam Chowdhury, learned Senior
Counsel appearing for the appellants, submits that
the respondent has obtained an ex parte decree in
appeal by practising fraud upon the Court
suppressing the notices upon the present defendant
appellants, so the judgment and decree of the
appellate Court is liable to be set aside. He
further submits that the positive finding arrived
at by the trial Court, upon consideration of the
evidence and materials, was, inter alia, that;‘‘D³
gvgjvi avivevwnKZvq KzPµxgn‡ji cÖ‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU 5
Rvj `wjj m„Rb Kwiqv Av`vj‡Zi mvg‡b bvwjwk m¤úwËi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡Qb|ÕÕ
which has not been reversed by the Appellate
Court. He submits that the impugned judgment and
decree passed ex parte by the High Court Division
is violative of the provisions of Order XLI Rule
31 of the Code of Civil Procedure and as such, the
same is liable to be set aside. He, lastly,
submits that the plaintiff being out of possession
of the suit land, suit for mere declaration was
not maintainable.
Mr. Md. Nurul Amin, learned Senior Counsel
appearing for the respondents, submits that
original lessee Nurur Rahman Chowdhury, at first,
executed a bainanama in favour of the plaintiff on
20.01.1978 and, thereafter, executed and
registered a sale deed dated 18.04.1978 in his
favour, thereby, his right, title, interest and
possession in the land, in question, has been
divested to the plaintiff, the High Court Division
upon proper appreciation of the evidence on
record, decreed the suit.
It appears that the plaintiff Badrul Amin @
Manu Sardar, represented by his power of Attorney
Md. Helal Uddin, filed instant Title Suit No.187
of 2008 on 09.01.2008 stating that Nurur Rahman
Chowdhury got the suit land from DIT, at present 6
RAJUK. The plaintiff purchased the same from him
by registered sale deed dated 18.04.1978 upon
payment of consideration of a sum of taka
3,70,375/-. Before sale, Nurur Rahman Chowdhury
took permission from the then DIT by letter
communicated under Memo No.DIT.Estate/3169 dated
26.09.1977. Thereafter, the plaintiff purchaser
mutated his name in the khatian as well as in the
office of the RAJUK. It is the case of the
contesting defendant-appellants that the aforesaid
kabla deed of the plaintiff is forged one and
their predecessor Nurur Rahman did not execute and
register any such sale deed in favour of the
plaintiff. The trial Court, upon consideration of
the evidence on record, held that,Ò ‡mB K_v weev`x c‡¶i
bvwjkx m¤úwË AvZ¥mvr Kivi KzgZj‡e ev`x B‡Zvc~‡e© Ab¨ †jvK w`qv gvgjv `v‡qi Kiv
nBqvwQj Ges D³ gvgjvq civwRZ nBqvwQj| D³ gv gjvi avivevwnKZvq KzPµxgn‡ji
cª‡ivPbvq eZ©gvb ev`x RvwjqvwZ P‡µi m`m¨ nBqv GKwU R¦ vj `wjj m„Rb Kwiqv Av`vj‡Zi
mvg‡b bvwjkx wb¯úwIi gvwjKvbvi Kvwnbx m„Rb Kwiqv‡QbÓ . Thereafter, the
trial Court observed that, ÒmyZivs R¦ vj `wjj Gi gva¨‡g ev`x
Av`vj‡Z gvgjv Kwiqv R¡vj `wjj e‡j bvwjkx m¤úwˇZ gvwjKvbv cªwZôv Kivi cªkœB Av‡m
bv|Ó The High Court Division, while reversing the
finding as to the creation of the title deed of
the plaintiff by way of forgery, has stated, “I t
is true that seal in sale deed appeared with
spelling as ‘Sadar Sub-Register’ but signature of 7
the Sub-Register was with each of the seal of the
deed”.
The trial Court observed that it is
difficult to accept that a responsible office of
Sub-Registrar shall prepare and use its seal as
“Office of the Sub- Register”. The word “ Sub -
Register” in the official seal of Sub -Registrar
created a doubt about the genuineness of the deed
itself. Since it is the case of the defendants
that the said deed is forged one it was the duty
of the plaintiff to prove his deed upon calling
the volume book from the concerned Sub-
Registrar’s office but he did not take any such
step.
It further appears from the materials on
record that the plaintiff Badrul Amin earlier came
to an agreement with admitted owner Nurur Rahman
Chowdhury on 20.01.1978. In his examination- in-
chief P.W.1 Md. Badrul Amin @ Manu Sardar has
said, Òbyi“i ingvb †PŠayixi mwnZ evqbv 20/1/78 Bs Zvwi‡L nq Dnvi Kwc Av`vj‡Z
`vwLj Kwijvg| (cª`t 8) Ó that is, it is definite claim of
the plaintiff (P.W.1) that he came to an agreement
on 20.01.1978 with Nurur Rahman Chowdhury. In his
pleading, the plaintiff has said Nurur Rahman
Chowdhury filed an application for getting
permission for sale of the suit land to the
plaintiff and, accordingly, he got permission for 8
sale from the then DIT vide Memo
No.DIT/Estate/3169 dated 26.09.1977. That is,
according to pleading and evidence of the
plaintiff Nurur Rahman Chowdhury got permission
from the then DIT on 26.09.1977 and executed
“bainanama” with the plaintiff on 20.01.1978.
According to the plaint case, Nurur Rahman
Chowdhury took permission from RAJUK to transfer
the suit land on 26.09.1977 but the Exhibit-8, the
alleged “bainanama” dated 20.01.1978, shows that
it was recited, inter alia, ÒB¤úªyf‡g›U óªvó wWAvBwU feb nB‡Z
AbygwZ cvIqvi ci evqbvbvgv `wjj MªwnZv‡K wjwLZfv‡e Zvnv Rvbv‡bv nB‡e| Z‡e B¤úª yf‡g›U
óªv‡ói AbygwZ wb‡Z hw` †Kvb µ‡g †`wi nq Zvnv nB‡j 90 w`‡bi ¯n‡j Avjv c-Av‡jvPbvi
wfwˇZ mgq e„w× Kiv hvB‡e|Ó If story of getting permission to
transfer the suit land on 26.09.1977 was true
then, at the time of execution of alleged
“bainanama” dated 20.01.1978 the above quoted
statement in the “bainanama” would not be
mentioned. It further appears from the Exhibit-8
that price of the property, in question, was
settled at tk.3,70,375/ and Nurur Rahman,
receiving tk. 1,00,000/-, executed the same and
there was a stipulation that the plaintiff should
pay the rest amount of taka 2,70,375/- within 90
days but the plaintiff in his evidence did not say
so. 9
It further appears from the Exhibit-6 to 6(Ka)
Nurur Rahman Chowdhury had allegedly filed
application for getting permission on 26.09.1977,
the contents of the said application for
permission run as follows:
Òcª`k©bx bs-6-6(K)t 26/09/1977 Zvs Gi Av‡e`b I
8/1/78Bs Zvs Gi Aby‡gv`b cÎ|
eivei,
Dc-cwiPvjK (G‡óU)
wW,KAvB,wU, feb, XvKv-2|
welqt DËiv g‡Wj UvD‡bi 13bs †m±‡ii 4bs †iv‡Wi Aew¯nZ 9bs c ‡Ui BgviZ mn
n¯—vš—i cªms‡M|
g‡nv`q,
mwebq wb‡e`b GB †h, Avwg DËiv g‡Wj UvD‡bi 13 bs †m±‡ii 4bs †iv‡W Aew¯nZ
9bs c ‡Ui eivÏ MªwnZv Ges weMZ 30/10/69 Bs ZvwiL †iwRwóªK…Z -11004 jxR `wjj g~‡j
D³ c ‡Ui gvwjK| wW,AvB,wU KZ…©K Aby‡gvw`Z bKmv Abyhvqx D³ c ‡U GKLvbv GKZjv
BgviZ wbg©vb Kiv nBqv‡Q| eZ©gv‡b Avgvi Avw_©K cª‡qvR‡b BgviZ mn D³ c U Lvbv †gvU
UvKv 3,70,375/- (wZb j¶ mËi nvRvi wZbkZ cuPvËi UvKv ) gy‡j¨ Rbve †gvt e`i“j
Avwgb Ii‡d gby mi`vi , wcZv Ave `yj nvw` Gg,Gg 33 †K we †Nvl óªxU , _vbv - †KvZqvjx,
†Rjv- XvKv Gi wbKU n¯—vš—i Kwi‡Z gb¯— KwiqvwQ| D‡j wLZ Ae¯nvi cwi‡cªw¶‡Z cªv_©bv
GB †h, BgviZ mn Dc‡ivwj wLZ c U Lvbv Rbve e`i“j Avwgb Ii‡d gby mi`vi, wcZv
Ave`yj nvw`, Gg,G, 33 bs †K,we, óªxU †Nvl, _vbv - †KvZqvjx, †Rjv- XvKv Gi wbKU n¯—vš—i
Kivi Rb¨ AbygwZ cª`vb Kwi‡Z AvÁv nq|
ZvwiLt 26/09/1977Bs
Avcbvi wek¡¯—
¯^vt A¯có
26/9/77
(byi“b ingvb †PŠayix) 10
wcZv nvRx †gvZvnvi Avjx
†PŠayix
mvs-Mvbcvov, _vbv- RvwKMÄ,
‡Rjv-wm‡jU| Ó
Exhibit-6(Ka) shows that a letter was issued
from the Deputy Director , Estate to Nurur Rahman
Chowdhury, the contents of the said letter run as
follows:
Òcª`k©bx bs-6(K)t
¯^viK bs- wW, AvB,wU/G‡óU/3169/26/9/77B , ZvwiLt 08/01/78Bs
‡cªiKt Dc-cwiPvjK (G‡óU)
wW,AvB,wU feb
XvKv-2|
cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv),
wcZv- nvRx †gvZvnvi Avjx †PŠayix
mvs-Mvbvcvo, _vbv-RvwKMÄ,
‡Rjv- wm‡jU|
welqt DËiv AvevwmK GjvKvq 13bs †m±‡ii 4bs iv¯—vi BgviZ mn 9bs c ‡Ui
n¯—vš—i cªms‡M|
Avcbvi weMZ 26/9/77 Bs Zvwi‡Li Av‡e`b cÎ AÎ Awd‡mi ¯^ viK bs-
3161 ¯’vt ZvwiL 26/9/77 Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó nBqv RvbvB‡ZwQ †h,
Dc‡ivwj wLZ BgviZ mn c U wU Rbve †gvt e`i“j Avwgb Ii‡d gby mi`vi, wcZv
†gvt Ave`yj nv`x Gg,G, 33, †Kwe †Nvl wóªU, †cvt evey evRvi, _vbv -†KvZqvjx, †Rjv-
XvKv Gi wbKU n¯ —vš—i we‡ePbv mv‡c‡¶ n¯— vš—i wd eve` 30,8,548/- (wÎk j¶
AvU nvRvi cvuPkZ AvUPwj k) UvKv gvÎ Ges 18/11/68 Bs nB‡Z 18/01/78 Bs
ch©š— mvwf©m PvR© eve` 2,489/- (`yB nvRvi PvikZ DbbeŸB) UvKv †mvbvjx e¨vsK ,
wW,AvB,wU feb, kvLvq AvMvgx 8/2/78 Bs Zvwi‡Li g‡a¨ Rgv w`qv RgvK…Z UvKvq
e¨vsK iwk` cª‡qvRbxq Kvh©Kix e¨e¯nv Mªn‡bi Rb¨ wbg¥ ¯^v¶iKvixi wbKU `vwLj
Kwi‡Z nB‡e| D‡j wLZ Zvwi‡Li g‡a¨ UvKv Rgv w`‡Z e¨_© nB‡j †Kvb cªKvi †bvwUk
e¨wZ‡i‡KB D³ evwZj ewjqv MY¨ nB‡e| 11
¯^vt A¯có
(Dc-cwiPvjK G‡óU)
wW,AvB,wU feb, XvKv| Ó
The RAJUK allegedly gave permission with
certain terms and conditions which run as follows:
Òcª`k©bx bs- 7t- 15/1/78 Zvs wd Rgvi Kwc|
Zvs-15/01/78
XvKv B¤úªf‡g›U U«vó
wW, AvB, wU feb, XvKv-2|
¯^viK bs- wW, AvB,wU/G‡óU/3169/26/77B , ZvwiLt 15/01/78Bs
‡cªiKt Dc-cwiPvjK (G‡óU)
wW,AvB,wU feb
XvKv-2|
cªvcKt byi“b ingvb †PŠayix (jxR MªwnZv),
wcZv- nvRx †gvZvnvi Avjx
mvs-Mvbvcvo, _vbv-RvwKMÄ,
‡Rjv- wm‡jU|
welqt DËiv AvevwmK GjvKvq c U bs 9, †m±i bs -13, †ivW bs -4, BgviZ mn
c UwU
n¯—vš—i cªms‡M|
Rbve,
Avcbvi 26/9/77 Bs Zvwi‡Li Av‡e`‡bi cwi‡cªw¶‡Z I AÎ Awd‡mi m¥viK
bs-wW,AvB,wU/G‡÷U/3169 ZvwiL 26/9/1977Bs †gvZv‡eK wbg¥ ¯^v¶iKvix Avw`ó
nBqv RvbvB‡ZwQ †h, Dc‡ivwj wLZ c U wU Rbve †gvt e`i“j Avwgb Ii‡d gby
mi`vi, wcZv - g„Z †gvt Ave`yj nv`x Gg,G, 33 †K,we, †Nvl wó«U, †cvt evey evRvi,
_vbv- †KvZqvjx, †Rjv- XvKv....... Gi eive‡i wbg¥ wjwLZ kZ© I wbqgvejx m¤ú~Y©i“‡c
KviY ¯^v‡c‡¶ wbg¥i“‡c Aby‡gv`b Kiv nBj| 12
cª¯—vweZ n¯ —vš—i MªwnZv KZ…©K mshy³ Pzw³ bvgv I AsMxKvi bvgvi bgybv
†gvZv‡eK 1.50 (GK UvK v cÂvk) UvKv bb R ywWwkqvj óv‡¤úi Dci wjwLZ mwnZ
KiZt Rgv Kwi‡Z nB‡e|
Avcbvi 26/9/77Bs Zvwi‡Li Av‡e`‡bi D‡j wLZ n¯—vš—i g~j¨ 3,70,375/-
(wZb j¶ mËi nvRvi wZbkZ cuPvËi) UvKv Gi Dci n¯ —vš—i MªwnZv/MªwnÎxi mwnZ
n¯—vš—i `wjj m¤úv`b I †iwRwóª Kwi‡Z nB‡e|
wW AvB wU I g~j eivÏ MªwnZvi/ MªwnÎx g‡a¨ mswk ó c ‡Ui m¤úvw`Z jxR
`wjj G D‡j wLZ kZ© I wbqgvejx cª¯ —vweZ n¯—vš—i MªwnZv/ MªwnÎx gvwbqv Pwj‡Z
eva¨ _vwK‡eb| GB g‡g© n¯— vš—i kZ© Av‡ivc Kwi‡Z nB‡e Ges D³ n¯— vš—i
`wj‡ji mwn †gvni bK‡ji g~j Kwc cª¯— vweZ MªwnZv/MªwnÎxi bvg Rvixi Rb¨ AÎ `߇i
`vwLj Kwiw‡Z nB‡e|
GB wPwV Bmy¨i ZvwiL nB‡Z 4(Pvi) gv‡mi g‡a¨ Dc‡i D‡j wLZ kZ© I
wbqgvejx m¤ú~Y© Kwi‡Z e¨_© nB‡j n¯—vš—i Av‡`k evwZj ewjqv we‡ewPZ nB‡e|
¯^vt A¯có
15/1/78
(mnKvix cwiPvjK G‡óU)
wW,AvB,wU feb, XvKv-2| Ó
From those documents of the plaintiff it is
clearly proved that those documents are created
for the purpose of instant suit since those had no
consistency with the plaint case.
Plaintiff Badrul Amin in his cross examination
has said, Òbyi“i ingv‡bi evox wm‡j‡U †Rjv i RvwKM‡Ä Z‡e Zvnvi Mªv‡gi bvg
Avgvi g‡b bvB| by‡ii ingv‡bi Avmj Mªv‡gi bvg Avwg Rvwb bv|Ó Thereafter, he
said, ÒAvwg by‡ii ingv‡bi evox‡Z hvB bvB| Avwg wm‡j‡U by‡ii ingv‡bi mwnZ †÷k‡b
†`Lv Kwiqv wQjvg|Ó He further admitted that, ÒAvgvi `vwLj `wj‡j
mve †iwRó«v‡ii bv‡gi evbvbwU fzj fv‡e †jLv Av‡Q| Ó
P.W.1, has failed to 13
say the year of the execution and registration of
the sale deed. Aforesaid evidence clearly
indicates that there was no previous acquaintance
of the plaintiff with Nurer Rahman, admitted owner
of the suit land. Which also made the execution of
the alleged “bainanama” and sale deed and payment
of consideration doubtful
.
It further appears that in examination-in-
chief the plaintiff claimed that there are three
tin-shed in the suit land. But in his cross-
examination he has said ÒAÎ gvgjvi AviRxi Zcwm‡j m¤úwËi weeiY
nBj bvwjkx m¤úwË eZ©gv‡b Lvwj Av‡Q|Ó P.W.2 in his evidence has
said, Òbvwjkx m¤úwË Lvwj RvqMvq|Ó
The plaintiff did not
examine any other witness to prove his possession.
That is, the plaintiff has failed to prove his
possession in the suit land. In such view of the
matter, the instant suit, without the prayer for
recovery possession, was not maintainable.
In view of the nature of the evidence as
adduced by the plaintiff, it appears that the
conclusion arrived at by the trial Court is more
acceptable. While reversing the finding of the
trial Court, the High Court Division ignored those
evidence, thereby, erroneously set aside the well
reasoned judgment of the trial Court. 14
The High Court Division committed an error
while deciding the first appeal in a cursory
manner without meeting the requirements of Order
XLI Rule 31 of the Code of Civil Procedure. The
appeal has been decided without following the
procedure prescribed for deciding the first
appeal, thus, the impugned judgment is liable to
be set aside.
Considering the aforesaid facts and
circumstances, we find substance in the appeal
Thus, the appeal is allowed. The Judgment and
decree of the High Court Division in First Appeal
No.59 of 2010 is, hereby, set aside.
C.J.
J.
J.
The 17th March, 2023.
/words- 2674/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 472 OF 2016.
(From the judgment and decree dated 06.06.2010 passed by the
High Court Division in First Appeal No.283 of 1993)
Government of Bangladesh, represented
by the Deputy Commissioner, Satkhira
& others :
Appellants.
=Versus=
Debisahor Agriculture and Fish
Firming Co-operative Society
Limited & others :
Respondents.
For the Appellants :
Mr. Sheikh Mohammad Morshed,
Additional Attorney General
(with Mr. Mohammad Saiful
Alam, Assistant Attorney
General & Sayem Mohammad
Morshed, Assistant Attorney
General), instructed by Mr.
Haridas Paul,, Advocate-on-
Record.
For the Respondent No.1 :
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Bivash Chandra Biswas,
Advocate-on-Record.
Respondent No.2-98:
Not represented.
Date of hearing : 31.01.2023 & 07.02.2023.
Date of judgment : 07.02.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal
is directed against the judgment and decree
dated 06.06.2010 passed by the High Court
Division in First Appeal No.283 of 1993 2
reversing those dated 27.10.1993 passed by the
then Subordinate Judge, Satkhira in Title Suit
No.52 of 1985.
The relevant facts, for disposal of the
appeal, in short, are that the respondent No.1
instituted the aforesaid suit for declaration of
its title stating that the suit land along with
other lands covering an area of 111.39 acres
appertaining to S.A. khatian No.169 originally
belonged to Hazari Lal Sarnaker and others.
Hazari Lal Sarnaker submitted his statement as
per provision of President Order No.98 of 1972
expressing his desire to keep 33.24 acres of
land of plot No.290. Said Hazari Lal Sarnaker
transferred the suit land to the plaintiff by
several kabala deeds and delivered possession.
The plaintiff came to know that the defendant
No.3 has passed an order making the said land
khas. Hence, was the suit.
The defendant – appellant contested the suit
contending, inter alia, that the suit was not
maintainable and same was barred by limitation.
Their specific case, in short, was that the suit
land originally belonged to Hazari Lal Sarnaker
who surrendered the said land along with other
lands as per provision of P.O.98 of 1972 as 3
excess land. Making said land khas, the
Government leased out the same to landless
people who have been possessing the same. The
suit should be dismissed.
The trial Court, on consideration of the
evidence on record, dismissed the suit. The
plaintiff preferred First Appeal. The High Court
Division, by the impugned judgment and decree,
allowed the appeal, thereby, decreed the suit
upon setting aside the judgment and decree of
the trial Court. Against the judgment and decree
of the High Court Division, the Government
preferred this appeal upon getting leave.
Mr. Sheikh Mohammad Morhsed, learned
Additional Attorney General, appearing for the
appellant, submits that the as per provisions of
P.O. No.98 1972, the right, title and interest
of the property in question have been vested in
the Government free from all encumbrances the
High Court Division erred in law in setting
aside the judgment and decree of the trial
Court.
Mr. Probir Neogi, learned Senior Counsel
appearing for respondent No.1 in his submissions
supported the judgment and decree of the High
Court Division. He submits that the land in 4
question had been transferred by the admitted
original owner in favour of the respondent
Debisahor Agriculture and Fish Farming Co-
operative Society Limited. Accordingly, after
purchased, the respondent has been possessing
the suit land, the High Court Division upon
proper appreciation of the evidence and law
connected thereto has decreed the suit rightly,
there is no error in the judgment and decree of
the High Court Division.
The respondent, Debisahor Agricultaure and
Fish Farming Co-operative Society Limited has
instituted the instant suit for simple
declaration of its title in respect of the land
measuring an area of 33.24 acres out of 37.15
acres of land of plot No.240 and S.A. khatian
No.169. The suit land and the other lands
measuring an area of 111.09 acres of S.A.
khatian No.169 originally belonged to Hazari Lal
Sarnaker who transferred the suit land to the
respondent No.1 by several kabla deeds alleged
to have been executed and registered in favour
of the respondent No.1.
It is the case of the Government that Hazari
Lal Sarnaker surrendered the suit land as per
provisions of Presidential Order No.98 of 1972. 5
It appears from the statements submitted by
Hazari Lal Sarnaker of as per provisions under
Article 7 read with Article 12 of the Bangladesh
Land Holding (Limitation) Order, 1972
(Presidential Order No.98 of 1972) that he
surrendered the suit land along with other lands
the Government. Since the suit land was
surrendered by its owner as excess lands to the
Government under Presidential Order No.98 of
1972, we are of view that the right, title and
interest and possession of the same has been
vested in the Government free from all
encumbrance.
In view of the above provisions of law the
Government became the absolute owner of the
same. Thus, the subsequent transfer by the
Hazari Lal Sarnaker in favour of the plaintiff
in 1977 did not confer any title to it.
Upon consideration of the aforesaid facts
and circumstances, we are of the view that the
High Court Division has committed error of law
in allowing the appeal upon setting aside the
judgment and decree of the trial Court which has
caused a total failure of justice. Accordingly,
we find substance in this appeal. 6
Thus, the appeal is allowed. Judgment and
decree passed in First Appeal No.283 of 1993 is
hereby set aside.
C.J.
J.
J.
The 7th February, 2023.
/words-943 /
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.301 OF 2019.
(From the judgment and decree dated 02.02.2017 passed by the
High Court Division in Civil Revision No.946 of 2000)
Md. Isaq Biswas and others :
Appellants.
=Versus=
Abdus Samad Sheikh alias Abdul
Hossain being dead his heirs:
1(a)Rashida Begum and others.
Respondents.
For the Appellants :
Mr.Md. Nurul Amin, Senior
Advocate, instructed by Mr.
Zainul Abedin, Advocate-on-
Record.
For the respondents: Mr. Garib Newaz,
Advocate, instructed by
Mr. Syed Mahbubar Rahman,
Advocate-on-Record.
Date of hearing & judgment : 07.06.2023
J U D G M E N T
Hasan Foez Siddique, C.J: This appeal is
directed against the judgment and order dated
02.02.2017 passed by the High Court Division in
Civil Revision No.946 of 2000 reversing the
judgment and decree dated 02.02.1999 passed by
the learned Joint District Judge Artha Rin
Adalat, Faridpur in Title Appeal No.243 of 1992
reversing those dated 07.09.1992 passed by the 2
learned Assistant Judge, Alfadanga, Faridpur in
Title Suit No.62 of 1985.
The relevant facts, for the disposal of this
appeal, are that Shafiuddin and another
instituted aforesaid suit for declaration of
their title and recovery of khas possession
stating that the land as described in the
schedule to the plaint belonged to Maizuddin who
died leaving behind one son, Plaintiff No.1 and
widow the plaintiff No.2 as his heirs. The
plaintiffs, constructing dwelling homestead in
.17 acre of land of plot No.187, had been
residing therein. The defendants forcibly
dispossessed the plaintiffs on 25.10.1985. The
plaintiffs came to know that S.A. record of
right in respect of the suit land was wrongly
prepared in the names of the defendants. Hence,
was the suit.
The defendant No.1 contested the suit
contending that the landlords of the disputed
joma were Nagendra Roy Mukhopadhya and others
and tenant was Maizuddin. Maizuddin defaulted to
pay the rent. Thus, the landlords, instituting a
Rent Suit, got decree and took over the said
property in his possession executing the said
decree. Thereafter, Baser Mollah, predecessor- 3
in-interest of the defendant, took settlement of
the said land from the landlords and took over
possession of the same. S.A. record was prepared
in the name of the plaintiff No.1. Accordingly,
the defendant filed objection case which was
allowed. This defendant has been possessing the
suit land for more than 12 years. The suit
should be dismissed.
The trial Court, on consideration of the
evidence on record, dismissed the suit. The
plaintiffs preferred appeal, which was allowed
by the appellate Court.
Then the defendant filed civil revisional
application in the High Court Division and
obtained Rule. The High Court Division by the
impugned judgment and order made the said Rule
absolute. Against the aforesaid judgment and
order of the High Court division, appellants
have preferred this appeal upon getting leave.
Mr. Md. Nurul Amin, learned Senior Counsel
appearing for the appellants, submits that the
plaintiffs are the successive heirs of C.S.
recorded tenants and they were in possession of
the suit land till the date of dispossession on
25.10.1985 and the plaintiffs, by adducing
sufficient evidences, proved their title and 4
possession and, thereafter, date of
dispossession. He submits that the last Court
of facts upon proper appreciation of the
evidence on record, found plaintiffs’ title,
possession and their dispossession in the suit
land, the High court Division erred in law in
setting aside the well reasoned judgment of the
appellate Court. He further submits that the
defendants claimed that the suit land was sold
in auction and the landlords auction purchased
the same and took over the possession of the
same, thereafter settled the suit land to the
predecessor-in-interest of the contesting
defendants but they hopelessly failed to prove
the story of alleged auction and their
allegedly settlement, the High Court Division
upon improper consideration of the evidence
adduced by the parties erroneously dismissed the
suit.
Mr. Garib Newaz, learned Advocate appearing
for the respondents, submits that it is the duty
of the plaintiffs to prove their own case to get
the decree and their possession in the suit land
till the date of dispossession, the High Court
Division upon proper appreciation of the
materials on record, rightly reversed the 5
judgment and decree of the appellate Court. He
further submits since the plaintiffs failed to
prove their possession till the date of their
dispossession, the trial Court as well as the
revisional Court upon proper appreciation of the
evidence on record, came to the conclusion that
the plaintiffs suit was barred by limitation.
Admittedly, Moizuddin was C.S. recorded
tenant. The plaintiffs’ case is that they are
the successive heirs of the said Moizuddin and
had been possessing the suit land till the date
of their dispossession dated 25.10.1985. At the
initial stage, S.A. record-of-rights was
prepared in their names but finally it was
published in the name of contesting defendants.
It was their case that the plaintiff No.1 who is
P.W.1 was minor at the time of preparation of
record-of-rights and the contesting defendant
was his close relative and after the death of
his father, they started to live in the house
of the defendants. Taking opportunity of his
minority , the defendant forcedly dispossessed
the plaintiff from the suit land .
It appears from the materials on record that
earlier before the publication of S.A.
operation, a Miscellaneous Case for correction 6
of record-of-rights was filed which was disposed
of on contest. Finally S.A. record-of-rights was
prepared and published in the name of defendant
No.1. On perusal of the judgment of the trial
Court it appears that the Trial Court considered
the oral and documentary evidence adduced by the
parties and came to the conclusion that the
plaintiffs have failed to prove their possession
till their alleged date of dispossession from
the suit land. It further held that the suit was
barred by limitation. While drawing conclusion
as to the possession of the plaintiffs till
their dispossession, the first Court of fact
considered the evidence adduced by the parties
vividly but from the judgment and decree of the
appellate Court it appears that the appellate
Court, without taking into consideration of the
evidence as quoted by the trial Court, abruptly
reversed the finding as to the possession of the
plaintiffs till their dispossession from the
suit land. The revisional Court reversed the
finding as to the possession and dispossession
arrived at the appellate Court holding that the
conclusion arrived at by the last Court of fact
is not based on evidence. In the plaint, the
plaintiffs stated that they were dispossessed by 7
the defendant on 25.10.1985 from the suit land,
plaintiff No.1 was examined as P.W.1 who in his
evidence did not utter a word about the alleged
date of dispossession. Similarly their another
witness P.W.2 has also said nothing about the
date of dispossession of the plaintiffs from the
same. We have also gone through the judgment of
the Courts below it appears to us that the
conclusion arrived at by the High Court Division
is correct.
The appellate Court mainly relied upon the
weakness of the case of the defendants that they
have failed to prove of the story auction sale
and their alleged settlement but in order to get
a decree for recovery of possession along with
prayer for declaration of title the weakness of
the defendants case cannot be a ground for
getting decree the plaintiffs, particularly,
when the plaintiffs failed to prove their
possession in the suit land till their
dispossession.
In such view of the matter, we do not find
any substance in the instant appeal.
Thus, the appeal is dismissed.
C.J.
J.
The 7th June, 2023.
/words-1283/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique
Chief Justice
Mr. Justice Obaidul Hassan
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.289 OF 2015.
(From the judgment and order dated 17.08.2011 passed
by the High Court Division in Writ Petition No.6643
of 2006.)
Abdul Halim Gaznabi and
others.
Appellants.
=Versus=
M.M. Badsha Shirazi and
others.
Respondents.
For the Appellants :
Mr. Qumrul Haque Siddique,
Advocate, instructed by Ms.
Madhumaloti Chowdhury Barua,
Advocate-on-Record.
For the Respondent :
Nos.1.
For the Respondent :
No.6
Respondent : Nos.2-
5, 7-17.
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Syed Mahbubar Rahman,
Advocate-on-Record.
Ms. Nahid Sultana,
Advocate-on-Record.
Not represented
Date of hearing : 22.06.2022 & 27.07.2022.
Date of judgment : 03.08.2022
JUDGMENT
Hasan Foez Siddique, C.J: This Civil Appeal is directed against the judgment and order
dated 17.08.2011 passed by the High Court
Division in Writ Petition No. 6643 of 2006
making the Rule absolute. 2
The respondent No.1 herein, Superintendent
of Hossaini Dalan Waqf Estate, Dhaka filed the
above mentioned writ petition challenging the
order No.150 dated 05.02.2006 passed by the
Artha Rin Adalat No.3, Dhaka in Miscellaneous
Case No.7 of 1996 arising out of Title
Execution Case No.151 of 1991 rejecting the
application under order 21 rule 58 of the Code
of Civil Procedure.
The facts necessary for disposal of this
appeal, in short, are that the present
appellants took loan from the respondent No.3
bank by mortgaging the property, in question.
The borrowers defaulted in repayment of the
said loan, consequently, the bank instituted
Title Suit No.244 of 1979 against the borrowers
for recovery of outstanding loan and the said
suit was decreed on compromise on 23.09.1984.
Since the defendant-judgment debtors could not
pay the decreetal amount, the decree-holder
bank put the decree in execution by filing the
Title Execution Case No.151 of 1991. In that
title execution case a tender notice was
published in a daily newspaper for holding
auction of the mortgaged property of the
judgment-debtors. The present respondent, 3
Superintendent of Hossaini Dalan Waqf Estate
then filed an application under Order XXI Rule
58 of the Code of Civil Procedure in that
execution case stating, inter alia, that the
property in question was waqf property which
was leased out to one Pearoo Miah Sarder by a
registered lease deed dated 21.12.1956 for 50
years at a yearly rental of tk.250/. It was
stipulated in the said lease deed that the
lessee would surrender possession of that
property to the lessor on expiry of the lease
period. The bank filed the mortgage suit
without impleading the Administrator of Waqf or
the respondent No.1 as a defendant in that
suit. The defendant- judgment debtors had no
authority to mortgage the property, in
question to the plaintiff bank to secure the
loan availed by them. The disputed property was
liable to be excluded from the execution
proceeding.
The said application under order 21 Rule 58
of the Code of Civil Procedure filed by the
respondent No.1 was registered as Miscellaneous
Case No.7 of 1996.
The decree-holder bank and the judgment-
debtors proforma opposite party Nos.3 to 8 4
contested the said miscellaneous case by filing
two separate written objections. Their case, in
short, was that the mortgagors became owners of
the property in question under the Government
after wholesale acquisition of rent receiving
interest, the respondent No.1 had no right,
title and interest in that land and as such the
miscellaneous case was liable to be rejected.
The Artha Rin Adalat, on consideration of
the evidence adduced by both the parties and
the facts and circumstances, dismissed the said
miscellaneous case by the order No.150 dated
05.02.2006.
Being aggrieved by this order dated
05.02.2006, the Superintendent of Hossaini
Dalan Waqf Estate filed Writ Petition No.6643
of 2006 in the High Court Division and obtained
rule. The present appellants contested the rule
by filing affidavit-in-opposition.
A Division Bench of the High Court Division,
after hearing both the sides, made that rule
absolute observing that on the expiry of the
lease tenure in the year of 2007, the property,
in question, would be returned to the lessor as
per terms and conditions embodied in the lease
deed. The High Court Division set aside the 5
order dated 05.02.2006 passed by the Artha Rin
Adalat No.3, Dhaka and allowed the
Miscellaneous Case No.07 of 1996 under order
21 Rule 58 of the Code of Civil Procedure by
the impugned judgment and order.
Being aggrieved, the judgment-debtors have
preferred this appeal upon getting leave.
Mr. Qumrul Haque Siddique, learned Counsel
appearing for the appellants, submits that the
admitted position is that late Khawja
Habibullah Bahadur leased out the suit
properties to Pearoo Miah Sardar by a
registered yearly lease deed dated 21.12.1956
and in the lease deed it was clearly stipulated
that the lease shall endure and subsist for a
period of 50 years from the 1st day of January,
1957 to 21 st day of December, 2007 and that
the lease hold interest thus created should be
heritable by the heirs of the lessee and should
also be transferrable in any manner whatsoever,
the High Court Division erred in law in making
the rule absolute. He further submits that
after acquisition of rent receiving interests
late Pearoo Miah Sardar became tenant under
the Government, thereby, he acquired valid
title of the property in question, the High 6
Court Division erred in law in making the Rule
absolute. He lastly submits that instant writ
petition was not at all maintainable.
Mr. Probir Neogi, learned Senior Counsel
appearing for the respondent No.1, submits that
regard having been had to the provisions of
section 85(1) (e) of the Non Agricultural
Tenancy Act, the land, in question, being a
land under a public waqf nothing in this act
shall apply to the instant case. He further
submits that when the indenture of the lease
clearly provides that the lease is for specified
period, the said lease is not lease in
perpetuity but is one for specified period. He
further submits that section 26A of the Non
Agricultural Tenancy Act and section 81A of the
State Acquisition and Tenancy Act, have no
manner of application in the instant case since
lease in question started on 21.12.1956.
It appears from the materials on record that
Uttara Bank Limited, instituting Title Suit
No. 244 of 1979 for recovery of outstanding loan
against the appellants, got compromise decree on
23.09.1984 but the judgment debtors failed to
pay the said decreetal dues. Thus, the Bank
filed Title Execution Case No.151 of 1991 and in 7
the said execution proceeding the case land was
attached and in order to sell the said land in
auction an auction notice was published in “The
Daily Inquilab”. The writ petitioner respondent
No.1, thereafter, filed an application under
order 21 Rule 58 of the Code of Civil Procedure,
stating that the property described in the
schedule No.1 to the application for execution
is Waqf property which was leased out to one
Pearoo Miah Sardar by registered lease deed on
21.12.1956 for a period of 50 years at a yearly
rent of taka 250/- only. In clause “G” of the
said lease deed it was specifically stipulated
that after expiry of the period of lease, the
lessee would surrender the possession of the
lease property. The judgment-debtors have had no
right to mortgage the property to the plaintiff
Bank. It was the contention of the learned
Advocate of the appellants that after
enforcement of the State Acquisition and Tenancy
Act, the lessee became the permanent lessee
under the Government and that the respondent
No.1 had no rent receiving interest in the case
property.
The rent receiving interest of all the
rent receivers were acquired with effect from
14.04.1956 under section 3 of the State 8
Acquisition and Tenancy Act, as amended by East
Bengal Ordinance No. III of 1956 in the District
of Dhaka vide notification Nos.4826 LR to 4836-
LR respectively, dated 2nd April, 1956, published
in Dhaka Gazette extra-ordinary dated 2nd April,
1956 (part one). The instant lease deed was
executed and registered on 21.12.1956, that is,
after enforcement of State Acquisition and
Tenancy Act
. In such view of the matter, the
submission made by Mr. Siddique that after
enforcement of the State Acquisition and Tenancy
Act, lessee Pearoo Miah Sardar became tenant
under the Government has no leg to stand.
Moreso, it appears from the lease deed that
there was clear stipulation that the lessor
agreed with the lessee that lease shall endure
and subsist for a period of 50 years, from the
1st day of January, 1957 to 21 st day of December,
2007. From that aforesaid condition of the
lease and pursuant to the provision of section
108(B) of the Transfer of the Property Act, it
is apparent that the lessor was entitled to get
back the property after expiry of 50 years.
After expiry of that 50 years tenure, the lease
hold rights of the appellants have been
extinguished. 9
Considering the aforesaid facts and
circumstances of the case, we are of the view
that the High Court Division has not committed
any error of law in making the Rule absolute
releasing the property of the writ petitioner
respondent No.1 from the attachment.
Accordingly, we do not find any substance in
the appeal.
Thus, the appeal is dismissed.
C.J.
J.
J.
The 3rd August, 2022.
/words-1556/
|
IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Hasan Foez Siddique,
Chief Justice
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 222 OF 2016.
(From the judgment and order dated 12.06.2012 passed by the Hi gh
Court Division in Civil Revision No.1725 of 2007)
Mosammat Asma Khatun being
dead his heirs: Md. Anisur
Rahman and others :
Appellants.
=Versus=
Md. Abdul Karim being dead
his heirs:
Rahman and others:
Respondents.
For the Appellants :
Mr. Kazi Akter Hamid, Senior
Advocate, instructed by Mr.
Md. Abdul Hye Bhuiyan,
Advocate-on-Record.
For the Respondent No.1:
Mr. Probir Neogi, Senior
Advocate, instructed by Mr.
Syed Mahbubar Rahman,
Advocate-on-Record.
For the Respondent No.2:
Mr. Sheikh Mohammad
Morshed, Additional
Attorney General,
instructed by Mr. Haridas
Paul, Advocate-on-Record.
Respondent Nos.3-13 : Not represented.
Date of hearing : 15.03.2023, 28.03.2023, 29.03.2023,
05.04.2023, 03.05.2023 & 10.05.2023.
Date of judgment : 23.05.2023.
J U D G M E N T
Hasan Foez Siddique, C. J: This civil appeal is
directed against the judgment and order dated
12.06.2012 passed by the High Court Division in 2
Civil Revision No.1725 of 2007 making the Rule
absolute.
The relevant facts, for disposal of this
appeal, in short, are that respondent No.1 herein
as plaintiff filed Title Suit No.166 of 1977 in
the third Court of Subordinate Judge, Dhaka (which
was subsequently renumbered as Title Suit No.22 of
2003) for specific performance of contract stating
that the suit land measuring an area of 7 katha 9
chhataks of plot No.163A, Motijheel Commercial
Area, Dhaka was leased out to Abdus Sattar Bepari,
predecessor of the defendant Nos.1 to 12 for 99
years by the Government at a consideration of
tk.48,301/- for construction of building. Out of
the said amount, Abdus Sattar Bepari paid
tk.10,640/- only and unpaid premium was
tk.37,661/- which was to be paid by installments
as per terms and conditions setforth in the
allotment letter. Abdus Sattar Bepari, in total,
paid tk.19,908/- by different installments till
21.01.1971 but he could not make any construction
as per terms of the allotment letter due to his
financial constraint. He was, therefore, looking
for an efficient contractor to finance and
supervise the construction. The plaintiff was a
first class contractor and had intimacy with Md. 3
Ariff, one of the sons of Abdus Sattar Bepari. He
agreed to invest in the suit land. Accordingly, a
deed of agreement and irrevocable power of
attorney were executed and registered on
02.02.1971 by Haji Abdus Sattar Bepari in favour
of the plaintiff. Sattar Bepari received a sum of
tk.75,000/- from the plaintiff as security money.
The plaintiff was given possession of the suit
land. Due to the war of liberation in 1971, the
proposed construction work could not be done.
Sattar Bepari also took loan of tk.30,000/- from
the plaintiff. In this situation, Sattar Bepari,
being unable to return the loan amount and unpaid
portion of the lease money, decided to sell the
suit land to the plaintiff at a consideration of
tk.1,08,000/- with the liabilities. Accordingly,
he executed an agreement for sale on 31.07.1971 in
favour of the plaintiff and also executed a
receipt acknowledging the payment of
tk.1,07,000/- and handed over all original
documents to the plaintiff. Due to his sudden
death in August, 1971 Sattar Bepari could not
execute and register the sale deed. He left behind
defendants No.1 to 12 as his heirs. It was
stipulated in the agreement that Abdus Sattar
Bepari would collect permission from the 4
Government, income tax clearance and other
required papers, and inform the plaintiff
accordingly and, after payment of balance
consideration by the plaintiff, he would execute
and register the sale deed. After the death of
Abdus Sattar Bepari, the plaintiff requested the
defendants who initially assured him to execute
and register the sale deed. Meanwhile, the
plaintiff continued to pay installments of premium
to the Government. He paid tk.9,244/- till
26.07.1973. All of a sudden, the plaintiff came
to know that defendant Nos.1 to 12 are trying to
sell the suit property elsewhere. Accordingly, the
plaintiff served a legal notice dated 02.03.1976
upon the defendants requesting them to execute and
register the sale deed but they did not pay any
heed to his request. Hence, the plaintiff filed
the instant suit.
The defendant Nos.1-7 and 10 contested the
suit by filing written statement denying the
material averments made in the plaint contending
that late Abdus Sattar Bepari did not execute any
such agreement for sale. The agreement for
construction of building in the suit land was not
acted upon and the plaintiff’s failure to
construct building caused irreparable loss to the 5
defendants. Late Abdus Sattar Bepari did not
receive any money from the plaintiff. With a view
to grabbing the suit land the plaintiff brought
the suit on the basis of a forged agreement for
sale. The suit should be dismissed.
Trial Court, by its judgment and decree dated
28.05.2005, decreed the suit. Then the defendants
preferred Title Appeal No.304 of 2005 in the Court
of District Judge, Dhaka, which was heard by the
Additional District Judge, 6th Court, who after
hearing the parties allowed the appeal reversing
the judgment and decree passed by the trial Court
and decreed the suit in part. Being aggrieved, the
plaintiff filed Civil Revision No.1725 of 2007 in
the High Court Division and obtained Rule, which
was made absolute. Thus, the appellants have
preferred this appeal upon getting leave.
Dr. Kazi Akhter Hamid, learned Senior Counsel,
appearing for the appellants, submits that the
High Court Division erred in law in not holding
that the alleged “bainanama” was fake, forged and
fraudulent. He submits that the plaintiff failed
to prove the story of talk of sale, payment of
consideration as well as offer of payment of the
rest consideration by the plaintiff to the heirs 6
of Abdus Sattar Bepari, the High Court Division
erred in law in decreeing the suit.
Mr. Probir Neogi, learned Senior Counsel,
appearing on behalf of the respondents, submits
that all the three Courts believed that the
agreement for sale was duly executed by Abdus
Sattar Bepari in favour of plaintiff Abdus Karim
and the same was partly performed, the High Court
Division rightly made the Rule absolute. He
submits that the appellate Court also found the
agreement for sale genuine but erroneously
dismissed the suit, the High Court Division
rightly made the Rule absolute upon setting aside
the judgment and decree of the appellate Court.
Md. Abdul Karim, on 29.07.1977, filed the
instant suit against the successive heirs of Hazi
Abdus Sattar Bepari for specific performance of
contract and “to give the defendants No.1-12 a
reasonable time to obtain sanction from the
Government i.e. from the defendants No.14 and 15,
to collect Income tax and gains tax clearance
certificates and to register the sale deed on
receipt of balance consideration; to give a chance
to the plaintiff for payment of the balance
premium to the credit of the defendant No.15 and
to execute and register the sale deed in favour of 7
the plaintiff through due process of Court in
default of the defendants to do the same and to
put the plaintiff in possession of the suit land”.
It was the plaint case that Hazi Abdus Sattar
Bepari took lease of the suit land measuring an
area of 7 kathas and 9 chhataks situated within
Motijheel Commercial area being plot No.163A
(South) by a lease deed dated 11.07.1962. Total
lease money was fixed at tk.48,301/- to be paid to
the Government. It has been admitted in the plaint
that Abdus Sattar Bepari paid taka 19,908/- out of
total consideration. It has further been stated in
the plaint that till 21st January, 1971 he could
not start any construction in the suit land and,
thus, the plaintiff, being an enlisted First Class
Contractor, came to an agreement with him to
construct building. Accordingly, Abdus Sattar
Bepari executed a Power of Attorney on 02.02.1971
in favour of the plaintiff. Estimated cost of
construction of building was assessed
tk.3,54,770/-. He received a sum of tk.75,000/- as
security money. He again took loan of tk.30,000/-
from the plaintiff and executed an agreement for
sale on 31.07.1971 in favour of the plaintiff
acknowledging the fact of payment of tk.1,07,000/-
and handed over the original title documents to 8
the plaintiff. It has further been stated in the
plaint that Abdus Sattar Bepari died in the first
part of August, 1971 (that is, within few days
from the execution of the alleged agreement for
sale) leaving the defendants No.1-12 as his
heirs. In his evidence P.W.1 has stated, Ò14B
wW‡m¤^i/1971 nvRx mv‡n‡ei wZbcyÎ †gvt Avwid, nvRx Avwjd I Ave`yi iDd‡K cvK evwnbx
nZ¨v K‡i|Ó In paragraph 9 of the plaint, the plaintiff
stated that he had paid a sum of tk.9,244/-
through eleven challans till 26.07.1973. He came
to know that defendant Nos. 1 to 12 were trying to
sell the scheduled land elswehre ignoring the
terms and conditions of the agreement for sale and
thus, he issued legal notice. Receiving such
notice, the defendant Nos.2 and 3, hiring some
terrorists, tried to dispossess the plaintiff from
the suit land. He filed the Title Suit No.209 of
1976 for permanent injunction and, at one stage,
he got an order of status-quo. On 03.01.1977
defendants No.2 and 3 dispossessed the plaintiff
from the suit land by force. It has further been
stated in the paragraph 20 of the plaint that, on
the date of execution of agreement for sale, the
unpaid premium was tk.26,393/- and the plaintiff
paid tk.11,212/- though in paragraph 9 he stated
that till 26.07.1973 he paid tk.9244/- only. In 9
paragraph No.23 of the paint, the plaintiff
stated,
“That the cause of action for the suit
arose first on 31.07.1971 the date of
execution of the bainapatra in favour of
the plaintiff by the predecessor of the
defendant Nos.1-12 and thereafter with
the expiry of 3(three) years on
31.07.1974 the period within which the
contract was to be performed and
thereafter on each date of demanded by
the plaintiff to the defendant Nos.1-12
and lastly in March, 1976 when the legal
notices were served upon the defendants,
within plot No.163A Motijheel Commercial
Area where the suit properties situated
within the jurisdiction of Police Station
formerly Ramna and now Motijheel and
within the jurisdiction of this Court’”.
In paragraph No.23, the plaintiff
categorically stated that the cause of action of
the suit arose at first on 31.7.1971 and,
thereafter, on 31.07.1974, the period within which
the contract was to be performed. Article 113 of
the first schedule to the Limitation Act provides
three years limitation (before amendment) from the
date fixed for the performance, or if no such date
is fixed, when the plaintiff has notice that
performance is refused. When date is fixed for
performance of contract, the suit should be 10
regulated by the first part of the Article 113 of
the first schedule to the Limitation Act. In
deciding the issue as to the application of first
part, the Court shall take into consideration the
surrounding circumstances as well. The case at
hand does not fall in the first category of
Article 113 of the first schedule to the
Limitation Act because no date was fixed in the
alleged agreement for its performance. Thus the
case is to be governed by the second part, that
is, when the plaintiff has a notice that
performance is refused. In paragraph 23 of the
plaint, the plaintiff specifically stated that
first cause of action arose on 31.07.1971 and as
per first part of Article 113 of the first
schedule to the Act the plaintiff was entitled to
get 3 years to enforce specific performance of
contract, which expired on 31.07.1974. We have
found that the suit was filed on 29.07.1977.
The
expression “date fixed for the performance” is a
crystalized notion. When a date is fixed it means
that there is a definite time fixed for doing a
particular act. The date fixed for the parties for
performance of the agreement should be ascertained
on the basis of terms and conditions of the
contract. In a case, where no time for performance 11
was fixed, the court had to find out the date, on
which, the plaintiff had noticed that the
performance had been refused by the defendants.
For getting benefit of second part of Article 113,
in paragraph 23 of the plaint, it was inter alia,
stated, “------ with expiry of 3(three) years on
31.07.1974 the period within which the contract
was to be performed and thereafter on each date
of demand by the plaintiff to the defendants 1-
12------------“. In his evidence, P.W.1 said, Ò1-
12bs weev`xMb‡K Avwg bvwjkx m¤úwË eve` Avgvi eive‡ i mvd Kejv `wjj m¤úv`‡bi Rb¨
Aby‡iva Kiv ¯^‡Z¡I Zvnviv Uvj evnvbv µ‡g Avgv‡K NyivB‡Z _v‡Kb|Ó The aforesaid
portion of the pleading and evidence clearly
indicate that inspite of repeated demand, the
defendants did not execute the sale deed. That is,
his approach to execute and register the sale deed
was denied repeatedly by the defendants.
It was
the attempt of the plaintiff to get benefit of the
second limb of Article 113 of the first schedule
to the Limitation Act. In that case, it was the
obligation of the plaintiff to state the definite
date of refusal in the pleading which is absent in
paragraph 23 of the plaint as quoted earlier
. It
is difficult for the Court to find the actual date
to ascertain as to whether the suit was filed
within three years or not or whether the plaintiff 12
is entitled to get benefit of second limb of
Article 113 of the first schedule to the
Limitation Act or not. It is the spirit of law
that suit was required to be filed within three
years from the date fixed for the performance, in
the event no date is fixed for the performance
within a period of three years from the date when
the plaintiff has notice that performance is
refused. Such specific assertion is absent in the
pleading. Since the instant suit was filed on
29.07.1977 it is apparent that the same was barred
by limitation.
It appears from the plaint that the plaintiff
has stated that the total lease money was fixed at
tk.48,301/-. Out of that amount, Abdus Sattar
Bepari paid tk.19,908/- till 21.01.1971 by
challan. (paragraph 3 of the plaint). That is,
unpaid amount was tk.48301/ – tk.19908/=tk.28393/-
. In the plaint, the plaintiff stated that till
26.07.1971 he deposited tk.2000/- and, thereafter,
till 26.07.1973 he deposited tk.9,244/-. It was
stated that he had deposited tk.11,244/-.
According to the plaint a sum of tk.17,149/-
remained unpaid to the Government. In order to
adjudicate the issues properly, we directed Sheikh
Mohammad Morhsed, learned Additional Attorney 13
General to produce the respective record from
concerned Office, that is, the Ministry of Public
Works and Housing who produced the same in this
Court for our consideration. He submits that
pursuant to the terms and conditions to pay the
premium the lease itself is liable to be
terminated since no construction was made in time
and lessee Abdus Sattar Bepari failed to deposit
the lease money in time. He submits that the suit
land is situated within Motijheel Commercial Area,
the present market price of the same is more than
taka one hundred crore. He submits that the story
of payment of consideration by the plaintiff is
inconsistent with the payment as appeared in the
concerned record.
In a suit for specific performance of contract
to sell relief is given by ordering the person who
contracted to sell to do the act which he is under
an obligation, a duty enforceable by law, to do
that is to say, in the case of a contract to sell
land, to execute a sale deed. We have seen the
claim of the plaintiff in the plaint as to payment
of consideration and obligation of payment of
premium and alleged payment of the same.
When a
condition was incorporated at the instance of both
the parties, such conditions would be binding on 14
the parties. In the instant case it was the
condition that the plaintiff would deposit the
installments of premium. The plaintiff claimed
that he had deposited the same. The deposit of
premium was essential term of contract. But on
perusal of the record, produced from the office of
Housing Settlement, it appears that on 16.12.1970,
a Certificate Case was started for realization of
arrear salami of tk.5,986/- and unpaid interest
was tk.1068/-. Certificate debtor of that
Certificate Case was Sattar Bepari who paid
tk.4000/-, that is, unpaid amount was only
tk.1986/- and interest was tk.1068/-. From the
office note it further appears that on 24.05.1971,
Certificate debtor paid tk.1500/-. Rest unpaid
amount was only tk.486/- and interest was
tk.1068/-. From the office note dated 21.11.1973,
it further appears that unpaid amount and interest
was tk.6,670.63/- only. The lessee deposited
tk.1494/-. It further appears from the office note
dated 09.04.1974, that Certificate debtor had
deposited tk.13025/-. Thereafter, he paid premium
of 14th installment which was excess amount.
From the amount paid as appeared from the
office notes it appears to us that the same does
not support the plaintiff’s case as pl eaded in his 15
plaint. Moreso, the plaintiff did not comply with
the terms and conditions of the alleged agreement
for sale even if the same is accepted as genuine
one. Non compliance of the mandatory condition
itself disentitles the plaintiff from obtaining an
equitable remedy for specific performance.
The conduct of the plaintiff is very
suspicious. In his cross examination, the P.W.1
admitted that Abdus Sattar Bepari had business of
timber, rice mill, saw mill and cargo. He further
said, ÒZvnvi evox‡Z Avgvi Avmv-hvIqv wQj bv|Ó Thereafter, he said,
Òbvwjkx RvqMvq 02/02/71Bs me© cª_g Avwm|Ó He further said, ÒPzw³cÎ,
evqbvi w`b nvwR mv‡n‡ei mv‡_ Avgvi 2/ 3 w`b †`Lv nq |Ó Thereafter, he
said, ÒnvRx mv‡ne my¯n wQ‡jb bv Amy¯n wQ‡jb Avgvi Rvbv bvB|Ó He added,
ÒnvRx mv‡n‡ei 2 †Q‡j‡K RvbZvg Avwid I Avwjd mvevjK wQj| evKx †Q‡j †g‡qiv bvevjK
wKbv Rvwb bv| Ó He admitted that three sons of Haji
Sattar, namely, Md. Arif, Alif and Rouf were
killed in 14th December, 1971. In the plaint, it
appears that some of the heirs of Haji Sattar,
that is, defendant Nos.9,10, 12 and 13 were shown
as minors.
From the evidence quoted above it is apparent
that there are some inconsistencies regarding the
claim of the plaintiff, that is, in respect of
talk of sale, settlement of consideration,
execution of “bainanama”, payment of premium to 16
the Government by the plaintiff, offer made by the
plaintiff to the defendants on the basis of
alleged agreement to get the sale deed executed
and registered upon payment of rest consideration
and as to the delivery of possession of the suit
land. All those inconsistencies created a doubt
about the genuineness of the alleged agreement for
sale and transaction.
Specific performance of contract is an
equitable and discretionary relief to be given by
the competent Court exercising the same
judiciously. To get relief it is imperative upon
the plaintiff to prove that there was agreement
for sale and consideration was settled and
pursuant to the agreement a considerable amount
was paid out of settled consideration, the
plaintiff has already performed or was always
ready and willing to perform the essential terms
of agreement which were to be performed by him.
The Court shall Judge the conduct of the
plaintiff having regard to the entirety of the
pleadings as to the evidence brought on records.
The pleading and the evidence adduced by the
plaintiff and the other materials on record raised
a doubt about the talk of sale, payment of
consideration, execution of bainanama, delivery of 17
the possession of the disputed property and making
construction in the suit land. Without taking any
permission and even without making any prayer to
the Government to get permission to transfer the
suit land, the story of agreement for sale
advanced by the plaintiff creates suspicion.
Taking into account the fact that during the war
of Liberation when every citizen of this country
was afraid of saving his life and the fact that
Haji Sattar Bepari died subsequent after alleged
execution of “bainanama” and the admitted fact
that his three sons were killed during the war of
Liberation and having regard to the conduct of the
plaintiff, we are of the view that the instant
case was not fit case for exercising discretion
for enforcement of contract and the plaintiff was
not entitled to get any relief, the High Court
Division has committed an error of law in not
exercising its discretion judiciously and,
thereby, erroneously made the Rule absolute.
Considering the aforesaid facts and
circumstances, we find the substance of the
appeal.
Thus, the appeal is allowed. The judgment and
order dated 12.06.2012 passed by the High Court 18
Division in Civil Revision No.1725 of 2007 is
hereby set aside.
C.J.
J.
J.
The 23rd May, 2023.
/words-3490/
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