The Lnj June 2012 Issue

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Mamataz Begum Vs Anowar Hossain (S. K. Sinha, J.)

APPELLATE DIVISION (CIVIL) Mr. Surendra Kumar Sinha J. Madam Nazmun Ara Sultana J. Mst. Momtaz Mr. Syed Mahmud Hossain J. Begum Mr. Muhammad Imman Ali J. } ...Appellant.

Mr. Muhammad Mamtaz VS Uddin Ahmed J. } Anowar Hossain Mr. Md. Shamsul Huda J. ....Respondents Judgment 21.06.2011 & 31.07.2011 Mohammedan Law Paragraphs 252, 254 and 268.

There are unanimous views of the jurists and authorities that even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retirement of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc.

Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice.

The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage. Apart from acknowledgment by either party, if there is continual cohabitation between a man and woman as husband and wife, there is presumptive marriage and legitimacy provided that the parties were not prohibited from intermarrying.

The High Court Division based its decision on piecemeal consideration of Mulla’s Mohammedan Law and arrived at a decision which is not supported by any of the authors of Mohammedan Law. …. (25 to 26) Code of Civil Procedure (V of 1908) Section 115 The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent. The High Court Division, in the premises, exceeded its power in interfering with the concurrent findings of fact in the absence of any

Civil Appeal No. 139 of 2003 (From the judgment and order dated 16.6.1999 passed by the High Court Division in Civil Revision No. 1984 of 1996.)

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misreading or non-consideration of the evidence on record. ...(26) Asha B.V. Kadir B., (1909) 33 Mad 22; Abdul Kaidr V. Salina, (1886) 8 All.149(155); Moung Kyi V. Ma Shwe Baw (1929) 7 Rang 777; 121 I.C. 718; Gagu Bibi V. Mesal Shaikh (1936) 63 cal 415 and 164 I.C. 957; Shahzada Begum V. Abdul Hamid (1950) Lah 773; Khorshed Alam @ Shah Alam V. Amir Sultan Ali Hyder and another, 38 DLR (AD) 133; Debendra Mohan Rai V. Sona Kunwar, (1904) 36 Allahbad 295; Abdool Razack V. Aga Mahomed Jaffer Bindaneem, 21 Indian Appeal 56; Khajah Hidayatoollah V. Raijan Khanum, (1844) 3 MIA 299; Wise V. Sanduloonissia Chowodanee, (1867) 11 MIA 177; Abdool Razack V. Aga Mahomed Jaffer Bindaneen, 21 Indian Appeal 56; Ma Khatoon V. Ma Mya and others, 165 IC 232; Khajah Hidayut Oolah V. Rai Jan Khanum, 3 MIA 295; Bashir and others V. Ilam Din and others, PLD 1988 SC 8; Hamida Begum V. Murad Begum, PLD 1975 SC 624; Syed Habibur Rehman Chowdhury V. Syed Altaf Ali Chowdhury, AIR 1922 PC 159; Masit-unNissa V. Pathani, XXVI All 295 ref.

Mr. Dr. Rabia Bhuiyan, Senior Advocate instru-cted by Mr. Md. Nawab Ali, Advocate- on-Record, .....For the Appellant.

Mr. Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Md. A.K.M. Shahidul Huq, Advocate-on-Record. ....For the respondent.

Judgment S.K. Sinha, J: This appeal raises questions of some importance in the field of Mohammedan Law but they are not abstract questions which can be divorced from the facts giving rise to them and in order to resolve them the facts in some detail are necessary. .Appellant instituted a suit against the respondent for dower and maintenance in the Family Court. She claimed that though their marriage was solemnized according to Mohammedan Law, the Kabinnama was not registered. They lived as husband and wife together for a considerable time and the marriage was duly consummated. With the passage of time the respondent became more greedy and started demanding dowry from her and at one stage the respondent drove her away from his house.

Respondent con-tested the suit denying the marriage and claimed that the appellant’s brother was an employee under him. He misappropriated a sum of taka thirty five thousand from his shop and to divert the said incident, the appellant instituted the suit by making wild allegations. Besides the evidence of the appellant, the Family Court on assessment of the evidence of Shadrul Islam (P.W.2), Madu Mia

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Mamtaz Begum Vs. Anowar Hossain (S.K. Sinha, J.)

(P.W.3), Swapan (P.W.4) and Babul Mia (P.W.5) came to the definite finding that the respondent married the appellant and that they lived as husband and wife, and 3decreed the suit. The Court of appeal below affirmed the judgment. A single Bench of the High Court Division in exercise of revisional jurisdiction reversed the judgments of the courts below and dismissed the suit.

2.

It has been observed by the Family Court that the appellant examined independent witnesses who stated in unequivocal terms that there was marriage between the appellant and the respondent, that they lived together as husband and wife and that the respondent examined nearest relations who are not reliable witnesses. The Family Court inferred adverse presumption against the respondent on the reasonings that though the respondent denied the marriage, he being the eldest among seven siblings, the marriage of his two younger brothers is not unnatural but considering the surrounding facts coupl with the nature of the witnesses examined by him led to the inference that there was legal marriage between the appellant and the respondent. The Court of appeal below also evaluated the evidence on record afresh and arrived at the conclusion that the respondent failed to prove by adducing reliable evidence that he did not lead conjugal life with the appellant, that despite that there was no kabinnama, they lived as husband and wife which had been satisfactorily proved by the appellant by examining independent witnesses and that the Family Court was perfectly justified in decreeing the suit. The High Court Division held that in the absence of a registered kabinnama a special onus is cast upon the appellant to prove the fact about marriage, that there is no material to show that the marriage between the parties was solemnized after fulfillment of requirements laid down in paragraph 252 of the Mohammedan Law, that the appellant having failed to prove the marriage by examining competent witnesses her claim of marriage falls to the ground and that mere living together did not bring her within the bounds of marriage.

3.

Leave was granted to consider on three points, as to (1) whether non-registration of the marriage under Mohammedan Law makes the marriage illegal or irregular or non-existent, (2) whether continuous

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co-habitation by the appellant and the respondent over a period of three years as husband and wife coupled with their conduct infer a presumption as to the legal marriage, and (3) whether the High Court Division is justified in interfering with the concurrent findings of fact arrived at by the Courts below on proper assessment of the evidence on record as to the solemnization of a legal marriage between the appellant and the respondent in exercise of revisional jurisdiction. Dr. Rabia Bhuiyan, learned counsel contended that the view of the High Court Division in drawing adverse presumption against the appellant merely on the ground of absence of kabinnama is based on misconception of law. According to the learned counsel, in view of the concurrent findings that the appellant and the respondent had lived together as husband and wife over a period of three years which suggested the presumption of legal marriage, the High Court Division erred in law in interfering with the said concurrent findings of fact.

4.

The courts below on a thorough sifting of the evidence on record came to a definite conclusion that the marriage was consummated. The High Court Division did not at all repel the findings arrived at by the courts below on the point of consummation of marriage. The High Court Division did not dislodge the findings of the courts below that the appellant and the respondent lived jointly for a considerable time as husband and wife but dismissed the suit mainly on the ground of the absence of registered kabinnama, and on the face of denial by the respondent, the appellant was required to prove solemnisation of marriage after observance of the requirements of paragraph 252 of the Mohammedan Law, the basic essentials of marriage, which she failed to prove by adducing reliable evidence. The High Court Division, however, believed the appellant’s claim that they lived together as husband and wife but castigated such living as unethical observing “Now-a-days the obnoxious alien culture of living together has made its in-road into our society and this slowly is spreading its tentacles undermining our social value and the institution of marriage�. It seems to me that the learned Single Judge of the High Court Division has failed to address the point in dispute between the parties in the light of the evidence and the principles of law applicable in the facts of the given case.

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Mamataz Begum Vs Anowar Hossain (S. K. Sinha, J.)

5.

Let us consider the concept of marriage under Mohammedan Law. Marriage under the Mohammedan Law is a civil contract requiring no ceremony or special formality. In Harvard Law Review, XXVII, 387 an article appears on ‘Requisites and Proof of Common Law Marriages’ explaining the concept of the common law marriage.

F.B. Tyabji in his Mohammedan Law at page 101 said, the principles stated in the article may be helpful in the decision of similar questions arising under Mohammedan Law. The article reads thus: “From early times, it has not always been clear what acts were necessary to the validity of a marriage.

According to early civil law the consent of the parties was sufficient; but it seems doubtful, whether under the early English common law a marriage without a minister was valid. In this country, however, many States have adopted the view that a marriage may be valid even without a ceremony before third parties.

The rule is usually stated to be that an agreement to be married henceforth, followed by cohabitation, constitutes the so-called common law marriage. But both on principle and authority, it would seem that the agreement alone is sufficient to consummate a common law marriage, and that the subsequent cohabitation is important only as evidence of the agreement.” “Moreover, it is clear on the authorities, in the States where formal solemnization is not necessary, that although there is no proof of an actual written or oral contract, the agreement necessary to the formation of a common-law marriage may be inferred solely from the conduct of the parties.”

6.

The article then proceeds to refer to four situations which are said to be rather common: “(1) The only evidence of the agreement may be that the parties have lived together as husband and wife: from this a common law marriage is often inferred, even without proof of an express agreement: an implied agreement being sufficient. The parties may have purported to contract a marriage and lived together, but the agreement at the time it is entered into may be void because of some disability unknown to both parties. If, subsequently, the disability is removed, a new contract is in strictness.”

7.

There is no dispute that the Mohammedan marriage among muslims is not sacrament but purely civil contract. Marriage brings about a relation based

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on and arising from, a permanent contract for intercourse and procreation of children between man and woman who are referred to as ‘parties to the marriage and, who after being married, become husband and wife. Though generally solemnized with recitations from Koran, yet no positive service peculiar to the occasion is prescribed by law; writing not required; validity and operation of whole depends upon declaration or proposal and acceptance or consent of contracting parties before competent witnesses; (Bail.1.4). In Asha B.V. Kadir B., (1909) 33 Mad 22, it is stated, “marriage is contract between parties to live as husband and wife for term of their lives.” In Muhammadan Law by Faiz Badruddin Tyabji, Third Edition, marriage is defined in paragraph 17, and after considering different authorities the essentials of marriage are summed up as under: “Marriage arises in Muhammadan Law from a contract-(a) Providing for intercourse and the procreation of children; (b) commencing from the time of contract; (c) made for effectuating a marriage between a man and woman whose intermarriage is not prohibited by law; (d) entered into in accordance with the rules and forms laid down in s.17A to S.23, inclusive, and (e) by a person who has authority to contract in marriage the person purported to be married.” Quoting Fatawa Alamgiri in Abdul Kaidr V. Salina, (1886) 8 All.149(155) it is stated, “also for the solace of life; one of the prime and original necessities of man. Therefore lawful in extreme old age after hope of offspring has ceased and even in the last or death illness.” The Mohammedan Law does not insist upon any particular form in which the contractual performance should be effected or that “the union should be evidenced by any writing, nor is the presence of witnesses essential for its validity”.

In this connection Syed Ameer Ali in his Mohammedan Law, 6th Edition, following Fatawai Alamgiri, Vol.11 page 209 and Radd-ul-Muhtar, Vol. II page 429 opined, though among the Sunnis the presence of witnesses is considered necessary to the validity of a marriage their absence only renders it invalid which is ‘cured by consummation’. A marriage contract, it is stated, as a civil institution, rests on the same footing as other contracts. The parties retain their personal rights against each other as well as against strangers; and, according to the majority of the schools, have power to dissolve the

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marriage-tie, desirable.

should

Mamtaz Begum Vs. Anowar Hossain (S.K. Sinha, J.)

circumstances

render

this

8.

To use the words of Baillie, marriage, like other contracts, “is constituted by ejab wa kabul or declaration and acceptance, but it confers no rights on either party over the property of the other. The legal capacity of the wife is not sunk in that of the husband; she retains the same powers of using and disposing of her property, of her entering into all contracts rendering it, of suing and being sued without his consent, as if she were unmarried. On the principle of contract of marriage, the author stated, in the language of the law, as in the common parlance, the formal conclusion of the contract is called ‘akd’ conveying the same meaning as the term ‘obligation’ in the Roman Law. In fact, akd is the completion of the contract which commences with the proposal or demand in marriage and ends with the consent.”

Radd-ul-Muhtar, Vol. II, says “akd signified both proposal and assent, and that the word means the contract of marriage as well as co-habitation”.

9.

On the capacity of the parties to marry each other, Syed Ameer Ali says, “the validity of a marriage under the Mohommedan Law depends primarily on the capacity of the parties to marry each other. “The performance of the marriage according to the form prescribed in the place where the marriage is celebrated, or which would impress on the woman by the customary law of the Musalmans the status of a wife is a matter of secondary consideration”. Dicey on Domicile stated, it is recognized principle of law that the capacity of each of the parties to a marriage is to be judged of by their respective Lex domicilii. If they are each, whether belonging to the same country or to the different countries, capable, according to their Lex domicilii, of marriage with the other, they have the capacity required by the rule under consideration.

10. Fatawai Alamgir, Vol. I, page 377 says “Among the conditions which are requisite for the validity of a contract of marriage, are understanding, puberty and freedom in the contracting parties, with this difference that whilst the first requisite is essentially necessary for the validity of the marriage, as a marriage can not be contract by a majnun (non compos mentis), or a boy without understanding; the other two conditions are required only to give

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operation to the contract, as the marriage contracted by a (minor) boy (possessed) of understanding is dependent of its operation on the consent of the guardian.”

11. The essentials of a marriage mentioned in paragraph 252 by M. Hidayatullah on Mulla’s principles of Mahomedan Law are based on the arguments made in Moung Kyi V. Ma Shwe Baw (1929) 7 Rang 777, 121 I.C. 718, Gagu Bibi V. Mesal Shaikh (1936) 63 cal 415 and 164 I.C. 957. In the absence of witnesses to the marriage, Mulla says in paragraph 254 “A marriage contracted without witnesses as required by sec.252 is irregular, but not void”. This rule has been upheld in Shahzada Begum V. Abdul Hamid (1950) Lah 773. As regards irregular marriage, Mulla following Baillie, 155 said in paragraph 264(3): “An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’ as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstances, such as the absence of witnesses.” It has been explained, the reason why certain marriages though irregular but not void that a marriage which is contracted without witnesses, the irregularity arises from an accidental circumstance. The effects of an irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other about the intention of relinquishment. Even in respect of irregular marriage, if consummation has taken place, Mulla says, ‘the wife is entitled to dower, proper or specified, whichever is less (Paragraph 267(2)). The High Court Division, in the premises, on a superficial consideration of the principles of a legal marriage, termed the living of the appellant and the respondent together as husband and wife “adulterous relations”.

12. Mr. Wadud Bhuiyan, learned counsel submitted that the plaint is totally silent as to the date, place and presence of witnesses of the marriage and the appellant having failed to prove the essentials of a marriage under Mohammedan Law, the High Court Division is perfectly justified in dismissing the suit. In support of his contention the learned counsel has referred to the cases of Khorshed Alam @ Shah Alam V. Amir Sultan Ali Hyder and another, 38

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Mamataz Begum Vs Anowar Hossain (S. K. Sinha, J.)

DLR (AD) 133, Debendra Mohan Rai V. Sona Kunwar, (1904) 36 Allahbad 295, Abdool Razack V. Aga Mahomed Jaffer Bindaneem, 21 Indian Appeal 56 and some other decisions. Under Hanafi and the Maliki Law, a presumption of marriage is inferred if the marriage is consummated from the retirement of the husband and the wife into the nuptial chamber, under circumstances which lead to the natural inference of matrimonial intercourse. Syed Ameer Ali stated that Muhammadan Law does not insist upon any particular form in which the contractual performance should be effected or that the union should be evidenced by any writing, nor is the presence of witnesses essential for its legality. For, though among the Sunnis the presence of witnesses is considered necessary to the validity of a marriage, their absence only renders it invalid which is cured by consummation. Therefore, according to the author, even if the person seeking a declaration of legal marriage failed to prove it in the absence of the witnesses, if he or she proves the consummation of marriage, it may be treated as valid marriage. “A marriage may be proved directly or presumptively; directly, by means of the oral testimony of the witnesses present at the marriage, or by documentary evidence in the shape of a deed of marriage; presumptively, by statement of parties or by evidence of conduct and reputation. As in many cases invalid marriages are rendered valid by consummations, and as the dower does not become due in its entirety until the marriage has been actually or constructively consummated, the question of consummation forms often an important element in the status of marriage”.

13. Section 50 of the Evidence Act declares that "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a member of family or otherwise, has special means of knowledge on the subject is a relevant fact". Illustration (a) to section 50 says; “the question is, whether A and B were married. The fact that they were usually received and treated as husband and wife, is relevant”. This section says when the question arises as to the presumption of marriage, the opinion that makes relevant is opinion expressed by conduct as to the existence of such relationship and not merely as to that relationship. It is for the Court to weigh such

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evidence and to come to its own opinion as to the relationship in question. When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. To narrow the ground by limiting it to "opinion expressed by conduct" so far an opinion expressed by conduct, i.e. by evidence of specific facts of the conduct mentioned in the illustration to section 50 of the Evidence Act. When a woman lives for a number of years in close association with a man and their children, who are acknowledged by the man as born to him; relations and persons of the village treated them as such, there is a presumption of legitimacy, if the witnesses prove the conduct of the man and the woman by their friends and neighbours from which the Court can draw this conclusion. It is not for the witness to draw the conclusion himself and to express a mere opinion about the very matter which the Court has to decide. Taylor in his Law of Evidence says, ‘general reputation’ is admissible to establish the fact of the parties being married.’

"When a person" says Fatawai Alamgiri, "has seen a man and woman living in the same house, and behaving familiarly towards each other as husband and wife, it is lawful to him to testify that the woman is the man's wife". Reference in this connection is the case of Khajah Hidayatoollah V. Raijan Khanum, (1844) 3 MIA 299 and Wise V. Sanduloonissia Chowodanee, (1867) 11 MIA 177. Faiz B. Tyabji in his Muhammadan Law, in Chapter ‘Proof and Presumption of Marriage’ in paragraph 81 stated: “when the question arises whether a marriage has been contracted in due form, the burden of is upon the person who affirms it; provided that unless the parties were prohibited from intermarrying it is in the following cases presumed that they were validly married, and the burden of proving that their cohabitation was illegal, shifts to the person who alleges it to be illegal; viz. where (1) it is proved that the parties cohabited together continuously and for a long period, as husband and wife, and were treated as such by their friends; or (2) either party has acknowledged that he or she was married to the other (and the other party has been confirmed, or acquiesced in, the acknowledgment.”

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Mamtaz Begum Vs. Anowar Hossain (S.K. Sinha, J.)

14. There are exceptions to the presumption of cohabitation. It is said, co-habitation means something more than mere residence in the same house. Residing as a menial servant in the house of a Muslim and bearing a child to him does not raise presumption of marriage, or where the relation admittedly began as concubinage, lapse of time, and propriety of conduct and the enjoyment of confidence, with powers of management reposed in the woman, were not held sufficient to raise presumption of subsequent marriage.

15. Mulla on the Principle of Mahomadan Law, ‘presumption of marriage’ has been stated in paragraph 268 as under: “Presumption of marriageMarriage will be presumed, in the absence of direct proof, from- (a) prolonged and continual cohabitation as husband and wife (e); or (b) the fact of the acknowledgment by the man of the paternity of the child born to the woman, provided that the conditions of a valid acknowledgment mentioned in section 344 below are fulfilled (f); or, (c) the fact of the acknowledgment by the man of the woman as his wife (g).” The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife nor does it apply if the woman was admittedly a prostitute before she was brought to the man’s house. The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption.

16. In Abdool Razack V. Aga Mahomed Jaffer Bindaneen, 21 Indian Appeal 56, Lord Macnaghten argued on the point of presumption of marriage that if the conduct of the parties were shown to be compatible with the existence of the relation of husband and wife, the conduct is a very good test, and a safer guide than the recollection or imagination of interested or biased witnesses. Their lordships accepted the argument that every presumption ought to be made in favour of marriage "when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that it must be difficult if not impossible to obtain a trustworthy account of what really occurred".

17. The appeal was, however, dismissed on other grounds as to the acknowledgment of the legitimacy of the child. It was argued that the word

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acknowledgment in its legal sense under Mohammedan Law of acknowledgement of antecedent right established by the acknowledgment on the acknowledger, that is, in the sense of a recognition, not simply of sonship, but of legitimacy of a son. Their lordships were of the opinion that the term acknowledgment is used, say, a child born out of wedlock is illegitimate; if acknowledged, he acquires the status of legitimacy. When, therefore, a child really illegitimate by birth becomes legitimated, it is by force of an acknowledgment expressed or implied, directly proved or presumed. The facts are that Abdul Hadee left a will bequeathing everything to his brother Hadjee Hosain, in which he mentioned that he had offspring in Burma. According to one witness, the offspring is Abdool Razack and expressed a wish that his brother should give him something. Their lordships are of the opinion that every word in the will is said about it to be perfectly true, the evidence falls very far short of such an acknowledgment as would confer the status of legitimacy upon an illegitimate child.

18. In Ghaganfor V. Kaniz Fatima, their Lordships of the judicial committee said: “The learned Judges fully recognized that prolonged cohabitation might given rise to a presumption of marriage, but that presumption is not necessarily a strong one, and their lordships agree that it does not apply in the present case, for the mother before she was brought to the father’s house was, according to the case on both sides, a prostitute.” There is no evidence that the appellant was a prostitute or woman of a bad character. Therefore, the conduct proved by the witnesses suggested a presumption in favour of a legal marriage.

19. In Ma Khatoon V. Ma Mya and others, 165 IC 232, a Division Bench of the Rangoon High Court argued that according to Mohammedan Law, where there had been continual cohabitation between a man and a woman, which is not a mere casual concubinage, but a more permanent connection and a child has been born, and where there is no insurmountable obstacle to such a marriage, then the presumption is in favour of such a marriage having taken place. It is further argued that where cohabitation between a man and a woman was continuous from the time when they first met, either

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Mamataz Begum Vs Anowar Hossain (S. K. Sinha, J.)

through an elopement or in consequence of an ordinary marriage before a moulvi, and that that cohabitation was with repute, it must be held that a valid marriage existed between them. These views have been taken with the approval of the views taken in Khajah Hidayut Oolah V. Rai Jan Khanum, 3 MIA 295. In Bashir and others V. Ilam Din and others, PLD 1988 SC 8, Nasim Hasan Shah,J. argued “Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to show that a man and a woman have lived together as man and wife for a long time”. The above views were taken from a passage of Tyabjee, Muhammadan Law, as under: “Legitimacy of a child may be presumed where there had been continuous cohabitation of the alleged parents, acknowledgement of the child by the father, treatment by the father of the mother and child, and repute and notoriety amongst members of the family, the community, or respectable members of the locality.”

20. In Hamida Begum V. Murad Begum, PLD 1975 SC 624, the Supreme Court of Pakistan endorsed the views taken by the judicial committee in Syed Habibur Rehman Chowdhury V. Syed Altaf Ali Chowdhury, AIR 1922 PC 159, and made the following observations: “Legitimacy is a status which results from certain facts, whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage can not be expressly proved or where the child is born within six months of the marriage as stated above. In such cases, acknowledgment of legitimacy in favour of the child may be either expressed or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgment raises a presumption of a valid marriage and legitimate birth.”

21. In Khorshid Alam Vs. Amir Ali, 38 DLR (AD) 133, the point in dispute was as to the legitimacy of Khorshid Ali is the son of Amir Ali Mia. Leave was granted to consider whether the principle of acknowledgement of sonship under the Muslim Law has been correctly considered by the High Court Division. In the said case, the question of marriage between Monwara Begum and Amir Ali Mia came

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under consideration. Khorshid Alam, the defendant, pleaded about the legal marriage. This Division though noticed that the defendant failed to prove marriage but taking consideration of the doctrine of acknowledgment of sonship held that there was legal marriage between Monwara Begum and Amir Ali Mia and that once acknowledgment of parentage is established, the marriage will be held proved. In that case this Division considered a decision of the Privy Council in 56 I.A.201 wherein it was argued that ‘until the claimant establishes his acknowledgment the onus is on him to prove marriage. Once he establishes an acknowledgment the onus is on those who deny a marriage to negative it in fact.’ The plaintiff denied the existence of the marriage and this Division shifted the onus upon the plaintiff to prove that there was no marriage. This Division concluded its opinion with the observation that “the person who deny it (marriage) will have to be established. In other words, it was for the plaintiff to prove that there was no marriage with Monwara Begum as alleged”. I fail to understand why Mr. Bhuiyan has referred this decision which rather supports the case of the appellant.

22. In Masit-un-Nissa V. Pathani, XXVI All 295, referred by Mr. Bhuiyan, the suit was brought to recover joint possession of a share in the property of a deceased Muslim, Wazir Muhammad Khan, who was alleged by the plaintiff Pathani to have been her husband, the father of her children, and for mesne profits. The defendants who are wife and her son resisted the claim. The trial Court decreed the suit.

The Allahabad High Court reversed the judgment of the trial Court following a dictum of the Privy Council that in the co-habitation there must be a treatment tantamount to acknowledgment of the fact of marriage and the legitimacy of the children and that there is no evidence in the case upon which it can be inferred that the fact of Pathani’s marriage or her children’s legitimacy. Therefore, this case is quite distinguishable.

23. The recognized custom of all sects are that a marriage is solemnized by a person conversant with the requirements of the law who is designated for the occasion, the Kazi. Two other persons, formally appointed for the purpose, act on behalf of the contracting parties, and the terms are usually embodied in a deed of marriage called ‘Kabin-nama’.

Under the Sunni law what is required more is that a declaration should precede the acceptance, in order to demonstrate conclusively the intention of the parties.

A marriage contracted without witnesses in invalid.

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But a marriage contracted at a place where compliance with it is impracticable, the marriage would not be void on that ground. Where it is possible to obtain testimony, and the ceremony of marriage has gone through without the presence of witnesses to attest its performance, it may be declared to be invalid. The condition of testimony, therefore, is not so essential that it can not be dispensed with. Once the marriage is consummated and the parties have cohabited, the contractual defect is removed; and the marriage is declared to be legitimate.

contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice. The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage. Apart from acknowledgment by either party, if there is continual cohabitation between a man and woman as husband and wife, there is presumptive marriage and legitimacy provided that the parties were not prohibited from intermarrying.

24. A marriage may also be proved presumptively by general conduct of the parties over which I have discussed above. The sources of presumptions of fact are, (i) the common course of natural events, (ii) the common course of human conduct, and (iii) the common course of public and private business. When a presumption operates in favour of a party, the burden of proof is on the opponent and when a burden of proof is on a party, there is a presumption operating in favour of the opponent. A presumption of fact is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved. The difference between Hanafi and Shia School is that in Hanafi law in regard to valid retirement has the same effect as consummation in respect of (1) the confirmation of Mahr; (2) the establishment of descent, or paternity; (3) the necessity for the wife observing iddat; (4) the wife’s right to maintenance and residence during iddat; and (5) the prohibition by conjunction against the husband marrying the wife’s sister or other four women with her. In respect of above five matters, the rights of the parties would be same as though consummation has taken place.

26. As regards the submission that the plaint is silent regarding the date, the place and the presence of witnesses of the marriage, it is too late in the day to examine and reopen the findings of fact arrived at by the Courts below on a fresh assessment of the pleadings and the evidence by this Division. As the ultimate Court in the land, this Division, as a rule, should give due weight and consideration to the opinions of the courts below, in particular, to the opinion of the trial Court which had the advantage of observing the veracity of the witnesses and watching their demeanour. We find that the High Court Division has totally overlooked the presumption of a muslim marriage and relying upon paragraph 252 of Mulla’s Mohammedan Law disbelieved the appellant’s claim of marriage. If the High Court Division had considered paragraphs 254 and 268 of Mulla’s Mohammedan Law, its decision would have been otherwise. The High Court Division based its decision on piecemeal consideration of Mulla’s Mohammedan Law and arrived at a decision which is not supported by any of the authors of Mohammedan Law. It has tried to apply a doctrine of Muslim Marriage against the established schools of Mohammedan Law. Therefore, the decision of the High Court Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record.

The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent. The High Court Division, in the premises, exceeded its power in interfering with the concurrent findings of fact in the absence of any misreading or non-consideration of the evidence on record. Accordingly, we find merit in contention of Dr. Rabia Bhuiyan. The appeal is, therefore, allowed with costs of Tk.10,000/-.

25. From the above discussions, I conclude that there are unanimous views of the jurists and authorities that even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retirement of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc.

Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for

Ed.

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Shamsul Alam Golap @ Md. Shamsul Alam Golap Vs. The State (Syed Abu Kowser Md. Dabirush-Shan, J.)

HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction) Mr. Syed A.B. Mahmudul Huq, J. Mr. Syed Abu Kowser Md. Dabirush-Shan, J.

}

}

Judgment 19.10.2011

Shamsul Alam Golap Alias Md. Shamsul Alam Golap . . Accused-Petitioner

VS The State . . . Opposite Party

Code of Criminal Procedure (V of 1898) Sections 167 (5) and 498 The cardinal principle of law is enunciated in Section 167 (5) of the Code that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. From the proviso to this Section it appears that it casts an obligation towards Court to record the reasons for not granting bail. In the absence of any material for not submitting police report by the IO for a long period of the one year and eight months it is difficult for the court to assign and record the reason as to why the bail will not be granted. It appears that 14 co-accused have already been granted bail by this Hon’ble court for which the petitioner is equally entitled to go on bail.

Considering the provisions of Section 167(5) of the Code for non-submission of police report and the harassment of the accused for languishing in the jail custody for more than one year and eight months the accused petitioner was enlarged on bail. ..(13 and 14).

Major (Retd) M. Khairuzzaman -Vs- The State, 3 B.L.C-344; Anwar Hossain (Md) -Vs- The State, 48 D.L.R-276.

Mr. Khandaker Mahbub Hossain with Mr. Sharif . ...For the petitioner Ahmad Mr. Mahbubey Alam, Attorney General with Mr. Biswajit Deb Nath, D.A.G ... ... For the State.

Judgment SYED ABU KOWSER MD. DABIRUSH-SHAN, J :

This rule at the instance of accused-petitioner Shamsul Alam Golap alias Shamsul Alam Golap under Section 498 of the Code of Criminal Procedure was issued on 17-7-2011 calling upon the opposite party to show cause as to why the .

* Criminal Miscellaneous Case No. 19901 of 2011.

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accused-petitioner should not be enlarged on bail in M.G.R.Case No. 151 of 2010 arising out of Motihar P.S. Case 2. The short fact of the F.I.R. case is that on 9.2.2010 one Majedul Islam Apu, General Secretary, Bangladesh Chhatra League, Rajshahi University Unit lodged the First Information Report with the Motihar Police Station against 35 accused-persons named in the F.I.R. along with 15/20 unknown persons. The said F.I.R. was recorded as Motihar P.S. Case No.05 dated 9-2-2010 under Sections 148/ 44/324/325/356/ 307/302/ 201/114/34 of the Penal Code and also Section 3 of the Explosive Substance Act. The contention of the F.I.R is that on 9-22010 the accused-persons being armed with deadly weapons like Chapati, ramdao, Chaines axe, iron rod, Pistol etc. entered into the T.V. room of S.M. Hall of Rajshahi University with a ill motive of killing. Then accused Shamsul Alam Golap ordered the other accused-persons to kill the activists of the Chhatra League and then the accused Reza caused grievious hurt on the head of Shafiullah with a Chapati.

Accused Sabbir caused grievous injury to the waist of Shafiullah with Chapati, accused Arif injured on the head of Taufikul Islam with Chinese axe and accused Rabiul inflicted several blow one after another on the back of Lutfor Rahman by Chapati and when Faruque protested the same the accused Khaled inflicted a ram dao blow on the right rips of Faruque then accused Mobarek Hossain hit on the back side of the head of deceased Faruque by a ram dao and accused Imon and Saifuddin caught hold the right hand of deceased Faruque and accused Liton and Nazmul Hoque by hitting on the left hand by a iron pipe broke his hand. Thereafter accused Rabiul, Tafshir, Shaheen, Milon, Ahad and Anis broke his leg by inflicting iron pipe blow as a result Faruque fell down on the ground then Shamsul Alam Golap pressed on his right rips by his leg. Thereafter when the general student came forward for the rescue of Faruque accused Shamsul Alam Golap managed to escape by firing pistol and Mobarek pointed a cut rifle towards the general student. Thereafter the accused-persons ensured the death of Faruque and accused Obaidul, Sumon, Gazi, Bappi, Raju, Maruf and some unknown accused carried the dead body of Faruque out of T.V. room of S.M.Hall. At that time accused Ahad and Anis blasted a cocktail to frighten the general student for which the informant and others could not come to know where the dead body of Faruque was taken.

After searching throughout the night dead body of Faruque was recovered from a manhole of Syed Amir Hall with the help of police. Thereafter the injured persons were admitted into the Rajshahi Medical College Hospital for treatment whose condition

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Shamsul Alam Golap @ Md. Shamsul Alam Golap Vs. The State (Syed Abu Kowser Md. Dabirush-Shan, J.)

was critical and the informant could recognize the accused persons with the help of electric light.

Thereafter police arrested the accused-petitioner along with others on 24-3-2010.

3. Earlier the bail petition was moved before the learned Sessions Judge, Rajshaji on 30-52011 who was pleased to reject the prayer for bail of the accused petitioner by his order dated 30-52011.

4. Being aggrieved by and dissatisfied with the order of rejection of bail the accused-petitioner preferred the instant bail petition before the High Court Division under Section 498 of the Code of Criminal Procedure and obtained the present rule.

5. Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad, the learned Counsel appearing on behalf of the accused-petitioner submits that the accused-petitioner is absolutely innocent and has committed no offence as alleged. The accusedpetitioner has been implicated in this case only because he is the President of Bangladesh Islamic Chhatra Shibir, Rajshaji University Unit. But as a matter of fact he was not at all connected with the alleged murder of Faruque. He is a brilliant student of M.Sc. Class studying in the Department of Genetics in the University of Rajshahi. The learned Counsel further submits that the accused-petitioner himself informed the Police Commissioner, Rajshahi over telephone about the occurrence and for redress.

Next he submits that informant is the General Secretary of Chhatra League, Rajshahi University Unit. The occurrence took place at dead of night i.e. at 1-30 A.M. The informant narrated the entire scenario of the occurrence as if he was an onlooker. The facts which has been revealed that there was a free fight between two rival groups of students unit one was Chhatra League and another was Bangladesh Islamic Chhatra Shibir. The learned Counsel next submits that under this chaotic and Aquatic situation it was neither possible nor desirable that an office bearer of Chatra league i.e. Secretary General who was a party to the fight will observe the entire occurrence as a silent spectator without sustaining any assault or injury or without taking part in the fight.

6. The learned Counsel finally submits that the accused-petitioner was arrested on 24-3-2010 and since then he has been languishing in the jail custody for about l(one) year 8(eight) months but till to-day the police could not submit the report and also it is not known when the police report will he submitted.

Whereas the statutory period of submitting the police report under Section 167(5) of the Code of Criminal Procedure has been laid down that the police report should be submitted within 120 days from the date of

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receipt of the information relating to the commission of the offence. By now more than l(one) year 8(eight) months have already been elapsed but the Motihar Police could not submit the charge-sheet as yet. The accused petitioner who is a final year student of M.Sc. Class, his studies has been greatly hampered and disrupted as a result he could appear at the final examination.

7. Under the facts and circumstances of the case, the learned Counsel reiterate that the co-accused who has got specific overt act in the F.I.R. were granted bail by the High Court Division in Criminal Miscellaneous Case No. 31031 of 2010, Criminal Misc. Case No. 19257 of 2010, Criminal Misc. Case No. 9845 of 2010 and Criminal Misc. Case No. 20433 of 2010.

8. Considering the whole aspect of the case as well as the legal position of non submission of the police report within the statutory period of 120 days, the accused-petitioner is entitled to go on bail.

9. Mr. Mahbubey Alam, learned Attorney General with Mr Biswajil Deb Nath, the learned Deputy Attorney General appearing on behalf of the state opposes the prayer for bail vehemently and submits that it was a very sensational case with a gruesome murder and it was a fight between two rival groups of students of Rajshaji University which created a sensation all over the country and has got a serious impact in the society. Next he submits that there is specific allegation against the accusedpetitioner in the F.I.R. that he being the active leader of Bangladesh Islamic Chhatra Shibir who passed the order for killing the activities of Chhatra League and also he actively took part in the occurrence. He pressed the rips of deceased Faruque by his leg to ensure his death. He also opened blank fire by a pistol to terrify the talented and brilliant general student. The learned Attorney General further submits that in reply to the submission of the learned Counsel for the accused-petitioner in respect of section 167(5) of the Code of Criminal Procedure no doubt this section is an enabling power to grant bail to an accused but this is not a mandatory but directory provision of law.

10. In this backdrop of the case where a heinous crime has been committed under the active role and participation of the accused-petitioner he should not be granted bail only on the score of mere non submission of police report within the time limit.

The learned Attorney General in support of his contention referred the case of Major (Retd.) M. Khairuzzaman -Vs- The State which was reported in 3 B.L.C-344 and another decision referred by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State reported in 48 D.L.R-

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Shamsul Alam Golap @ Md. Shamsul Alam Golap Vs. The State (Syed Abu Kowser Md. Dabirush-Shan, J.)

276 wherein it has been held: "The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory- on the expiry of the period for investigation the accused cannot claim bail as a matter of right."

11. In the case of Major (Retd.) M. Khairuzzaman Vs- The State, wherein it is held: "Although Section 167(5) of the Code of Criminal Procedure enjoins that if investigation is not concluded within 120 days from the date of receipt of the information relating to commission of the offence, the Court, if satisfied, can release the accused-person on bail but he cannot claim such bail as a matter of right when the delay, in the face of peculiar circumstances, in completion of investigation of the case is no ground to release the accused-petitioner on bail".

12. The learned Counsel finally submits that in this back ground of the case and also the legal position the accused-petitioner should not be allowed to go on bail and if he is granted bail in that case again he will create commotion in the University Campus.

13. Heard the learned Counsel for the accusedpetitioner as well as the learned Attorney General for the state. Perused the F.I.R., record and other connected papers. It appears from the record that the accused-petitioner was arrested on 24-3-2010 and the F.I.R. was lodged on 9-2-2010. Meanwhile l (one) year 8(eight) months have already been elapsed but the police could not submit charge-sheet as yet.

The cardinal principle of law which has been enunciated in Section 167(5) of the Code of Criminal Procedure is that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. In the proviso of section it has been stated "Provided that for if an accused is not released on bail under this sub-section the Magistrate or as the case may be the Court of Sessions shall record the reasons for it". It appears that this section casts an obligation towards Court for what reason bail could not be granted. In the instant case prosecution could not produce any materials before the Court as to why the Investigating Officer could not submit the police report within the long time of l(one) year and 8(eight) months. If the Investigating Officer faced any impediment to submit the police report in that case the Investigating Officer ought have written the cause of inordinate delay in submitting police report in black and white. But the prosecution could not produce any materials showing

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what are the handicaps in submitting the police report. In the absence of production of any such impediment before the Court we are absolutely helpless to assign and record the reasons as to why the bail is not granted according to proviso of Section 167(5) of the Code. It further appears from the record and also from the submission of the learned Counsel for the accused-petitioner that 14 co-accused have already been granted bail by the Hon'ble High Court Division and among them one F.I.R. named accused No. 27 Raidul Islam was also granted bail. If the F.I.R. named accused Raidul Islam is granted bail in that case the accused-petitioner is equally entitled to go on bail. The decision cited by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State and Major (Retd) M.Khairuzzaman vs. state also leans support to the granting of bail to accused-petitioner. Wherein it has been held: that the purpose for the fixation of the period of investigation is meant for the speedy trial of the case and to save the accused from unnecessary harassment in jail custody by prolonging investigation. But this provision is directory and not mandatory.

Therefore, on the expiry of the period for investigation the accused cannot claim his bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially". The purpose of adding this section after the amendment in 1992 is to enable the Court to grant bail of the accused-persons where the investigating officer unnecessarily prolonging the investigation to give harassment and suffering to the accused-petitioner.

14. In the context of the facts and circumstances of the case as well as the legal position particularly the provision of section 167(5) of the Code of Criminal Procedure for non submission of chargesheet and also considering the harassment of the accused for languishing in the jail custody for more than l(one) year 8(eight) months, we are inclined to enlarge the accused-petitioner on bail.

15. In the result, the rule is made absolute.

16. Let the accused-petitioner Shamsul Alam Golap alias Md. Shamsul Alam Golap, son of Motaleb Hossain of Village-Kazipara, P.S. Godagari, District-Rajshahi be enlarged on bail on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Rajshahi till the framing of charge.

However, if the accused-petitioner misuses the privilege of bail in any manner whatsoever, the trial Court is at liberty to cancel the bail.

Ed.

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Hazi Zahirul Islam and others Vs. Government of Bangladesh and another (Md. Ashfaqul Islam, J.)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mr. Md. Ashfaqul Islam J. Md. Moinul Islam Chowdhury, J. Judgment 28.10.2009

} Hazi Zahirul Islam and others ……Petitioners } VS Government of } Bangladesh and others ..TP... Respondents }

Constitution of Bangladesh, 1972 Article 102 State Acquisition and Tenancy Rules, 1955 Rules 28, 29, 30, 31, 32 and 42

Once appeal has been disposed of on contest under Rule 31 of Stale Acquisition and Tenancy Rules, 1955 no review or other application lies and the settlement authority have got no jurisdiction to reopen the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955.

Even Rule 42 docs not empower the Settlement Officer to sit and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955. ... (12) Md. Khalilur Rahman, Advocate …For the Petitioners Mr. S.R.M. Lutfor Rahman Akand, Advocate ...For respondent Nos 4 and Romisa Khanam Vs. Bangladesh, 61 DLR 18; (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records, 11 MLR 226 and Capital Co-operative Housing Society Ltd. Vs. Bangladesh, 45 DLR 289 ref.

Judgment Md. Ashfaqul Islam, J.

At the instance of the petitioners, this Rule Nisi was issued calling upon the respondent to show cause as to why the impinged 8 (eight) notices dated 01.02.2003 issued under the signature of respondent No. 3 for rehearing of Settlement Appeal Case No. 2846, * Writ Petition No. 2232 of 2003.

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2847, 2849, 2850, 2857, 2858, 2859 and 3025 of 1999 with a reference to Miscellaneous Case No. 760 of 2002 (Annexure- E, E (1), E(2), E(3), E(4), E(5), E(6) and E(7) should not be declared to have been passed illegally and without lawful authority and why direction should not be issued to send the draft publication of Khatian No. 237, 155, 125 and 245 of Mouza Shantinagar, Police Station Motijheel, Dhaka prepared in the name of the petitioners to the Settlement Press for final publication.

2. Facts leading to the issuance of the present Rule, in short, arc that after completing all the stages of proceeding of survey and settlement of recent Mohanagari settlement under relevant Rules of Stale Acquisition and Tenancy Rules, 1955 (herein after referred to as S.A. and T. Rules. 1955) ( i . e . proceeding known as khanapuri, Bujaral, Attestation, objection and Appeal) 1.20 acres of land covered by D.P. Khatian No. 237 of Mouza Shantinagar, under Police Station Motijheel, District-Dhaka were recorded in the names of Hazi Zahirul Islam, Jainal Abedin, Hazi Mahbubul Islam, Mojibul Islam (the petitioner Nos. l, 2, 3 5) and 8 others, 0.4050 acre of land covered by D . P . khatian No. 155 were recorded in the name of Hazi Zahirul Islam (The Petitioner No. 1 ) , 0.0730 acre land covered by D.P. Khatian No. 125 were recorded in t h e name of Kamal Uddin (the petitioner No. 4) and 0.0078 acre land covered by D.P.Khatian No. 245 were recorded in the name of Mojibul Islam( the petitioner No. 5).

3.

The petitioners and their other cosharers have been owning and possessing a total 1.837 acres of land covered by the aforesaid 4 khatians No. 237, 155, 125 and 245 and some other lands total being 3.21 acres from the time of their predecessors namely Hazi Hafizuddin, Afsaruddin and Md. Taher who purchased the 3.21 acres of land including the lands covered by the aforesaid four D.P. khatians from i t s lawful owners Bamacharan Pal, Boloram Pal, Hororam Pal and Gupal Chandra Pal by registered sale deed No.4911 dated 26.08.1952 and have been owning and possessing the same by constructing

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Hazi Zahirul Islam and others Vs. Government of Bangladesh and another (Md. Ashfaqul Islam, J.)

residential-cum-commercial building.

4.

While the predecessors of the petitioners were owning and possessing the aforesaid 3.21 acres of land along with the building thereon, including the land covered by aforesaid four I ) D . P. Khatians, the then Dhaka Improvement Trust ( D I T ) issued notice for requisition of 2 . 1 9 acre of land including the land covered by 4 khatians for the purpose of acquisition for constructing North South Koad by starting L.A, Case No.8/65-66 through the A.D.C. (L.A), Dhaka. Subsequently the aforesaid 2 . 1 9 acre of land was de-requisitioned by nonce dated 24th April 1968, 5.

The land covered by the order of derequisition as well as of 4 D.P. khatians as mentioned above were wrongly recorded in the name of Collector, Dhaka as khas land but at the time of preparation of R.S. record the land in question was duly and correctly ordered to be recorded in the name of petitioner No.5 and the predecessors of other petitioners and other co-sharers in Settlement Appeal Case No. I 53 and accordingly R.S. and D.P. khatian No.53 was prepared though the respondent No.4 did not participate in any proceeding under rules 28 to 31 of the State Acquisition and Tenancy Act Rules 1955 at the time of operation of R.S. record of right before the survey and settlement authority but fraudulently entered his name in the said R.S. khatian at the time of final publication in collusion with the staffs of the Settlement Press and on the basis of the said fraudulent R.S. khatian managed to have recorded his name in the recent Mohanagari Record of Right against which the petitioners and others filed objection Case No. 10, 12, 61, 40, 41, 43, 57, 24, 30, 46, 44, 47, 48, 42, 28, 25, 22 and 69 under rule 30 of S.A. and T Rules, 1955. The objection officer heard both the parties and allowed the objection Case No. 10 and 12 by analogous judgment dated 23.6.1999.

6.

Against the said judgment passed by the objection officer respondent Nos. 4 and 5 preferred Settlement Appeal Case No. 2846/99, 2847/90. 2849/99, 2850/99, 2857/99, 2858/99,

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2859/99 and 3025/99 under rule 31 of S.A. and T Act Rules, 19955 and being refused by the Appeal Officer preferred writ petition No.1103 of 1999 before this Court without impleading the petitioners a n d t h e i r co-sharers and obtained rule.

The present petitioner Nos. l -3 and 5 and other cosharers on being added as party in that writ petition contested the Rule which was discharged on 25.07.2001 by this Court. After that the Appeal Officer heard both the parties and dismissed the said appeal cases by analogous judgment dated 9 th April 2002 (annexure -D and D-1).

7.

It is further stated that after the judgment given in the appeal eases under rule 31 there is no provision other than to send the D.P. khatian to the Settlement Press for final publication under rule 32 of S.A. and T. Rules, 1995 and the petitioners were waiting for such finally published khatian but all on a sudden on 3rd February 2003 the petitioners obtained separated 8 notices issued under the signature of Settlement Officer, Dhaka, the respondent No. 3 dated 01.2.2003 for re-hearing of the self name Appeal Case Nos. 2846/99, 2847/ 99, 2849/99. 2850/99, 2857/99, 2858/99, 2859 /99 and 3025/99 under rule 31 of the State Acquisition and Tenancy Rules, 1955 by giving a reference of Miscellaneous case No. 760 of 2002. It is at this stage the petitioner moved t h i s Division under Article 102 of the constitution and obtained the present Rule.

8.

Mr. Md. Khalilur Rahman, the learned counsel appearing on behalf of the petitioners after taking us with the petition, the impugned notices and other annexure with the petition, mainly pressed that the impugned notices dated 01.2.2003 for rehearing of the appeal Case Nos. 2846/99, 2847/99, 2849/99, 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 afresh has been issued Without any lawful authority and without jurisdiction which should be declared unconstitutional. In elaborating his argument the learned Advocate submits that the notices for re-hearing of the appeal cases is absolutely in violation of State Acquis-

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Hazi Zahirul Islam and others Vs. Government of Bangladesh and another (Md. Ashfaqul Islam, J.)

ition and Tenancy Rules, 1955. l i e submits that once the appeal has been disposed of on contest under-rule 31 no review or other application l i e s and settlement authority has no jurisdiction to re-open the mailer other than to send the draft application khatian for final publication in the settlement press under Rule 32 of the S.A and T Rules, 1955. This is well settled as he submits. In support of his contentions he placed reliance on the decision of Romisa Khanam Vs. Bangladesh 61 DLR 18, (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records 11 MLR 226 and Capital Cooperative Housing Society Ltd. Vs. Bangladesh 45 DLR 289.

9.

Mr. S.R.M. Lutfor Rahman Akand, the learned Advocate appearing on behalf of the respondent No.4 and 5 by filing affidavit-inopposition, on the other hand, opposes the Rule and submits that this writ petition should be discharged in that the impugned notices in respect of filing of the Miscellaneous Case No. 760 of 2002 for re-hearing, of appeal eases Nos. 2846/99. 2847/99, 2849/99, 285O/99, 2857/99, 2858/99, 2859/99 and 3025/99 is absolutely in accordance with law since the same has been permitted under Rule 42 of the Tenancy Rules, 1955. H e submits that Rule 42 clearly provides that settlement authority has jurisdiction to re-hear (he appeal before publication of the record of right and hence the instant writ petition filed against those notices regarding re-hearing of the appeals is not maintainable under Article 102 of the constitution 10. We have heard the learned advocate for both sides at length and considered their submissions. We have also perused the petition, impugned notices, other annexures appended to the petition and the affidavit-inopposition carefully. The matter is well settled by this Court as well as the Appellate Division of the Supreme Court.

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11. In the ease of Romisa Khanam Vs. Bangladesh in which one of us was a party, Justice M.A. Rashid (as he then was) while dealing with the same point observed as follows: "In the scheme of revision of a record-of-rights under section 144 of the State Acquisition and Tenancy Act, 1950 there are various stages l a i d down in the Rules, 1955. After completion of attestation, the Revenue Officer shall under Rule 29 publish the draft record-ofrights for public inspection. Under Rule 30, the Revenue Officer shall decide summarily in presence of the interested parties any objection regarding ownership or possession of land or of any interest in land. Any person aggrieved by such an order on any objection made under Rule 30 may appeal to the Revenue Officer appointed with additional designation of Settlement Officer or of Assistant Settlement Officer commonly known as Appellate Officer within 30 days from the date of order appealed against. Any order passed on such appeal appears to be final as no further appeal or revision is provided there from.

After disposal of the objections under Rule 30 and appeals under 31 and correction of the draft record-of-rights in accordance with the original and appellate orders on all objections, the Revenue Officer shall proceed to frame final record of rights under Rule 31 and then, publish record of rights under Rule 33. Under Rule 34, the Revenue Officer shall within sixty days of the fina publication make a certificate stating the fact of such final publication and the date thereof, etc. And the Government by a notification in the official

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Hazi Zahirul Islam and others Vs. Government of Bangladesh and another (Md. Ashfaqul Islam, J.)

gazette may declare with regard to any specified area that the record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication.

Chapter VIII of said Rules, 1955 deals with general power of Revenue Officer in revising record-ofrights under section 144 of the State Acquisition and Tenancy Act, 1950. Rule 42 gives special power to a Revenue Officer appointed with additional designation of Settlement Officer to direct at any time before the publication of the final record of rights that any portion of the proceedings referred to in rules 28 to 32 in respect of any district, part of a district or local area shall be cancelled and the proceedings shall be taken up fresh from such stage as he may direct.

Similarly, such Settlement Officer is empowered under Rule 42A upon an application or receipt of an Official Report to correct any entry that has been procured by fraud in record-ofrights before final publication, and after consulting the relevant records and making such other enquiries as he deems necessary, to direct excision of the fraudulent entry and his act in doing so shall not be open to an appeal. At the same time, the Revenue Officer shall make the correct entry after hearing the parties and record his finding in a formal proceeding for the purpose of future reference. Bui none of such powers under Rule 42 or 42A of the Rules, 1955 appears to empower such Settlement Officer to s i t and or act as an appellate authority over an appellate order passed under Rule 31 and se aside such, appellate order or direct the Appellate Officer to hear an appeal afresh

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in respect of a particular holding. Nor the Appellate Officer is empowered to rehear an appeal which was finally disposed by him. The Settlement Officer therefore most illegally cancelled the appellate orders and compelled the Appellate Officer to hear the appeals afresh."

12. Against this decision Bhawal Raj Court of Wards Estate who was the respondent in the said case unsuccessfully moved the Appellate Division in Civil Petition for Leave to Appeal No. 1447-52 of 2008. The Appellate Division finally set at rest of the same once for a l l . All other decisions as r e f e r r e d t o above are on the same point and all these decisions settled the proposition of law that once appeal has been disposed of on contest under Rule 3 1 of Stale Acquisition and Tenancy Rules, 1955 no review or other application l i e s and the settlement authority have got no jurisdiction to re-open the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955. Even Rule 42 docs not empower the Settlement Officer to s i t and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955. In that view of the mailer, this Rule is made absolute without any order as to cost.

The impugned 8(eight) notices dated 01.2.2003 issued under the signature of respondent No. 3, the Settlement Officer is hereby declared t o have been passed without any lawful authority and as such no legal effect and it is also directed to send the draft publication khatian No. 237,155,125 and 245 of Mouza Santinagar, Police Station Motijhcel, Dhaka prepared in the name of the petitioners to the settlement press for final publication.

Ed.

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

HIGH COURT DIVISION (CRIMINAL MISCELLANEOUS JURISDICTION) Mr. M. Enayetur Rahim J Mr. Sheikh Md. Zakir Hossain J Judgment 22nd January, 2012

} }

Mahmudur Rahman Nazlu . . . Petitioner VS The State and another ...Opposite Party

Code of Criminal Procedure (V of 1898) Section 561A It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is impermissible. ... (10) Code of Criminal Procedure (V of 1898) Sections 7 (4) and 17 A Negotiable Instruments Act (XXVI of 1881) Sections 138 and 141 (c).

In section 141(c) of the Negotiable Instruments Act, 1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Session. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the Code. As such the submissions of the learned Advocate cannot be accepted that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case. Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code. .... (13 and 14) Code of Criminal Procedure (V of 1898) Section 408 Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge, when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term

Criminal Miscellaneous Case No.18937 of 2011.

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below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure.

May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended there is no scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object. ... (15, 16 and 17) Code of Criminal Procedure (V of 1898) Section 561A An application for restoration of the Miscellaneous Case filed under section 561A Cr.P.C. which was rejected as none was turned up to press the application but the High Court Division was not inclined to allow the accused petitioner to drive to a fruitless litigation. ...(1 & 19) Sonatoon Nessa -Vs- Haipattullah Sarker, 41 DLR (AD); Abdul Kashem and others Vs. The State, 43 DLR (AD) 1991.

Mr. Abu Hena Razzaki, Advocate ---For the Petitioner Mr. Gazi Md. Mamunur Rashid, A.A.G --- For the State.

Judgment M. Enayetur Rahim, J. This is an application for restoration of the above mentioned Miscellaneous Case under Section 561A of the Code of Criminal Procedure which was rejected by this Bench as none was turned up on repeated call to press the application on 11.12.2011.

2.

The accused petitioner filed an application under Section 561A of the Code of Criminal Procedure to quash the proceeding of Metro Sessions Case No. 7270 of 2009 under Section 138 of the Negotiable Instruments Act, 1881 pending in the Court of Joint Metropolitan Session Judge, 5th Court, Dhaka. The accused petitioner filed the said application in another Bench and after hearing the same, was fixed on 12.07.2011 for order; in the meantime

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

the constitution of that Bench had changed and the record of the Case was sent to the concerned section of this court and the application has been numbered as Criminal Miscellaneous Case No.18937 of 2001, though no Rule was issued. Eventually, the matter was sent to this Bench by the Hon’ble Chief Justice and ultimately the application was rejected for default on 11.12.2011.

3.

Mr. Abu Hena Razzaki, the learned Advocate for the petitioner placing the application for restoration, submits that, the application under Section 561A of the Code of Criminal Procedure was initially filed in another Bench and that was heard by that Bench on 21.06.2011 and fixed 12.07.2011 for order. But in the meantime the constitution of that Bench has been changed and no order was passed on 12.07.2011. On 03.01.2012 the learned Advocate of the petitioner when sent his Clark to the record section to see the position of the application then he came to learn that on 11.12.2011 the application was rejected for default. Because of such order of default a gap has been created between the relation of the client and the lawyer and if the case is not restored to its original filed and number the petitioner will be prejudiced seriously.

4.

In the Case of Sonatoon Nessa -VsHaipattullah Sarker, reported in 41 DLR(AD), Page105 our Appellate Division discouraged the restoration of a case when no useful purpose will be served in allowing the such restoration and a litigant instead being benefited in any manner will be driven to a fruitless litigation if restoration is allowed.

5.

Let us now decide the fate of the present application for restoration keeping the above proposition of law in our mind.

6.

We have gone through the application for restoration and as well as the application under Section 561A of the Code of Criminal Procedure.

7.

In course of the submission the learned Advocate for the petitioner admitted that the petitioner filed the application under Section 561A of the Code of Criminal Procedure before this Court after completion of the examination of the witnesses and 18.04.2011 was fixed for argument. It shows that

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the petitioner has not come before this Court with clean hand.

8.

In the application for restoration no explanation has been furnished by the petitioner or his learned Advocate what step was taken from 12.07.2011 to 03.01.2012.

9.

In the order dated 11.12.2011, rejecting the application for default, it has been categorically mentioned that on 08.12.2011 the case appeared in the daily cause list with the name of the learned Advocate for the petitioner, but no one appeared to press the application when it was taken up for hearing and on that particular day the Court Suomoto adjourned the hearing and on the following day when the matter was again taken up for hearing no one turned up to press the application and ultimately the application was rejected for default. With regard to the above observation of the Court the learned Advocate of the petitioner in his application for restoration has not furnished any explanation for his fault.

10. It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is not permissible.

11. The learned Advocate for the petitioner tried to impress us agitating the ground that in view of the provision of Section 141(C) of the Negotiable Instruments Act,1881 it is mandatory that the trial of the case, must be tried by the Court of Sessions not inferior to that of a Sessions Court and the Joint Sessions Judge being a subordinate to the Court of Sessions Judge has no jurisdiction to try the Case and as such the trial of the instant case by the Metropolitan Joint Sessions Judge 5th Court, Dhaka is nothing but an abuse of the process of the Court which is liable to be quashed. It was also the submission of the learned Advocate that if the instant Case is tried by Metropolitan Joint Sessions Judge and if any of the litigant of the case needs to move in the form of appeal against the said Judgment then he has to move before the Sessions Judge, which is a trial Court according to section 141(c) of the

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Negotiable Instruments Act and thus, trial Court itself can not be the appellate Court. Section 9 of the Code of Criminal Procedure runs as follows:

to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code.

Court of Session.- (1) The Government shall establish a Court of Sessions for every sessions division and appoint a Judge of such Court; and the Court of sessions for a Metropolitan Area shall be called the metropolitan Court of Session.

15. Further, Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge, when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous.

(2) The Government may, by general or special Order in the official Gazette, direct at what place or places the Court of Sessions shall hold its sitting; but, until such order is made, the Courts of Sessions shall hold their sittings as thereof.

(3) The government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise Jurisdiction in one or more such Courts. [(3A) The members of the Bangladesh Judicial Service shall be appointed as Sessions Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with the rules framed by the president under the provision to Article 133 of the Constitution to exercise Jurisdiction in one or more of such areas.]

12. Above provision of law clearly speaks that Government may also appoint Additional Sessions Judge and Assistant Sessions Judge (now Joint Sessions Judge) to exercise Jurisdiction in one or more such Courts.

13. We have gone through the relevant provision of law i.e. Section 141(C) of the Negotiable Instruments Act, Sections 7 and 9 of the Code of Criminal Procedure. In section 141(c) of the Negotiable Instruments Act, 1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Sessions. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the code.

As such, we are unable to accept the submissions of the learned Advocate that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case.

14. Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge

16. It is true that for committing offence under Section 138 of the Negotiable Instruments Act, 1881 highest sentence is for a term of one year or with fine or with both. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure.

17. May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended we have no authority or scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object, in exercising the power under Section 561A of the Code of Criminal Procedure.

18. The Case of Abdul Kashem and others Vs. The State, reported in 43 DLR(AD) 1991 as cited by the learned Advocate for the petitioner is not applicable in this Case. In that Case the appellate, revisional, reference and review power of the learned Additional Sessions Judge and Assistant Sessions Judge has been decided.

Having, discussed as above we are not inclined to allow the accused petitioner to drive to a fruitless litigation restoring the instant case to its file and number.

Accordingly, the application is rejected.

Communicate the order at once.

Ed.

277

Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mr. Hasan Foez Siddique J. } Md. Ayub Hossain Khan ... Petitioner Mr. Jahangir Hossain J. In Writ Petition No. 4608 of 2009 } VS } The Government of Bangladesh and others Judgment ....Respondents } H.R.P.B 18.08.2011 and 21.08.2011 ......Petitioner } in Writ Petition No. 6766 of 2011 -Versus} and others } Bangladesh ......Respondents } In Writ Petition No. 6766 of 2011.

Constitution of Bangladesh, 1972 Article 102 The period of lease of the petitioner of Writ Petition No. 4608 of 2009 having expired in 1415 B. S. and then it was not renewed. Petitioner’s unauthorized occupation in the property in question cannot be protected invoking the writ jurisdiction. The petitioner has been in possession for 23 years in the scheduled property as yearly lessee, who is a habitual defaulter in payment of lease money, cannot be protected from the clutches of unauthorized occupation on an application under Article 102 of the Constitution and he acquired no vested right to hold the same. The government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen. .

In view of the facts and circumstances as mentioned above our considered conclusion are that: (1) Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired in 1415 B.S. and the authority concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

(2) Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money, has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this *Writ Petition No. 4608 of 2009 with Writ Petition No. 6766 of 2011.

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Court to get lease to protect his possession.

Consequently the direction as sought for is hereby refused.

(3) Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4) The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala”immediately to protect and preserve the birth place of Suchitra Sen considering her contributions in our cultural arena ..... (48) M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Mofazzal Hossain and another Vs. Bangladesh, 43 DLR (AD) 137, M/S. Delta Constructions Ltd. Vs. Chairman, 2nd Labour Court and another, 28 DLR 365, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, 56 DLR (AD) 24, R.S. Das Vs. Union of India AIR 1987 SC page 593, John Vs. Rees (1969) 2 ALL E R. Page 274, Breen Vs. Amalgamated Engineering Union (1991) 2B 175, Dr. Abeda Begum and others Vs. Public Service Commission, 59 DLR (HCD) 182; Shirajul Islam and others Vs. Bangladesh, 60 DLR(HCD) 79, M/S. Motilal Padampal Sugar Mills Co. Ltd. Vs. The State of Uttor Prodesh, AIR 1979 S.C. Page 621, Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another, 46 DLR (AD) 148, Union of India Vs. International Trading Co., AIR 2003 SC. 3983, Ashok Kumer Panday Vs. State of West Bengal, AIR 2004 S.C. page 280, S.P. Gupta Vs. Union of India (popularly known as First Judge’s Case), AIR 1982 S.C. Page 148.

Mr. Abdur Razzaq, Senior Advocate with Mr. Imran A. Siddiq, Mr. Salman A. Nabi, Advocates. ... For the petitioner in Writ Petition No. 4608 of 2009 and for the added Respondent in Writ Petition No. 6766 of 2011

Mr. Mahbubey Alam, Attorney General, with Mr. Biswojit Roy, D.A.G, Mr. Shafiquel Islam Siddique, A.A.G, and Ms. Shahida Khatoon, A.A.G. ... For Respondent No. 1 in Writ Petition No. 4608 of 2009.

Mr. Manzill Murshid, Advocate, ... For the petitioner in Writ Petition No. 6766 of 2011 and for the respondent No. 4 in Writ Petition No. 4608 of 2009

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

Judgment Hasan Foez Siddique, J : Subject matters of both writ Petitions being Writ Petition No. 4608 of 2009 and Writ Petition No. 6766 of 2011 are same and they are heard together and disposed of by this judgment.

2.

In Writ Petition No. 4608 of 2009 a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order, being Memo.

No. ‡Rtcªt/cve/ivR¯^/wfwc wgm‡Km bs 03(cve)/86-87/09-1396, dated 22.6.2009 issued by the Additional Deputy Commissioner (Revenue), Pabna (the Respo-ndent No. 3) directing the petitioner to hand over possession of the Scheduled Land (Annexure –‘A’) shall not be declared to have been issued without lawful authority and is of no legal effect and further why the Respondents shall not be directed to renew the lease of the Scheduled Land in accordance with the terms and conditions set out in the Memo. dated 6.8.1991 (Annexure–‘E’) by accepting the outstan-ding rent payable by the petitioner from the year 1416 B.S. 3.

The writ petition No.6766 of 2011 has been filed by way of Public Interest Litigation (PIL). In that petition Rule Nisi was issued calling upon the respondents to show cause as to why the inaction of the respondents to take appropriate legal steps against the land grabbers of “Shuchitra Sen’s paternal house in Pabna Sadar should not be declared illegal and without lawful authority and a direction should not be given upon the respondents to ensure protection of the house of their all time famous icon and legendary actress of the sub-continent, Shuchitra Sen and why they shall not be directed to perform their duty vested upon them under the Constitution of Bangladesh.

4.

The relevant facts of writ Petition No. 4608 of 2009, in short, are that on 11th December, 1995, Moulana Md. Abdus Subhan created a trust by executing a Deed of trust for the purpose of establishing and running schools, colleges, madrasahs and medical centres. The management of the affairs of the Trust has been vested in a Board of Trustees comprising of 9 members. In 1983, the Board of Trustees of the Trust established Imam Gazzali Institute as an educational institution. On the basis of the prayer, the Additional Deputy Commissioner (Revenue), Pabna granted year to year lease of the Scheduled land of the impugned notice in favour of

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the petitioner commencing from 1st Paush, 1393 B.S on condition that an application had to be made for renewal of the lease at the beginning of the year following the expiry of the lease. On 2nd June, 1990, the Deputy Director, Primary Education, Rajshahi after conducting necessary enquiries granted registration to the petitioner for setting up a private school Thereafter, the petitioner, as Principal of the Imam Gazzali Institute, started a primary school. By a Memo dated 6th August, 1991 the Ministry of Land informed the petitioner that there is no provision for permanent settlement of vested properties so the lease of the scheduled land would be renewed every year until the Government takes final decision with regard to the settlement of vested properties. Thereafter, the respondents had renewed the lease of the scheduled land upon receipt of advance rent at the beginning of each year following the expiry of the lease in accordance with Clauses 4 and 5 of the lease deed.

The school buildings of the institute located on the scheduled land were in a dilapidated condition. The petitioner incurred several lacs of Taka for repairing and rebuilding the roof of the school building. On 25.05.1992, the Ministry of Land permitted the petitioner to repair the school building with approval of the local administration. The respondent Nos. 2 and 3 received rent from 1393 B.S. to 1415 B.S. regularly.

On 20.04.2009, the petitioner filed application for renewal of lease of the scheduled land for the year 1416-1417 B.S. On 20.04.2009, the petitioner requested the A.D.C (Rev) to accept the lease-money for the year 1416-1417 B.S. Meanwhile, the impugned notice has been issued directing the petitioner to hand over possession of the disputed property. The petitioner, by another letter dated 10th June, 2009 again requested the Respondent Nos. 2 and 3 to accept the rent for the year 1416-1417 B.S but they did not accept the same. Thereafter, the respondent No. 3 issued the impugned order on 22nd of June, 2009 informing the petitioner that a Museum is going to be constructed on the scheduled land and accordingly directed the petitioner to hand over possession of the said land. Challenging the letter dated 22.06.2009 (Annexure-A) the petitioner moved this Court under Article 102 read with Article 44 of the Constitution of the People’s Republic of Bangladesh and obtained the instant rule.

5.

The respondent No. 4 filed affidavit in opposition contending that the land measuring .2125 acres appertaining to S.A. Khatian No. 99, plot no.

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

587 of Mouza Gopalpur and the structures situated thereon (referred as scheduled property) originally belonged to Karunamoyee Das Gupta. S.A. record of right was prepared in his name. Karunamoyee Das Gupta left the then East Pakistan before 1960 for India. The Government made requisition of the said property in H.R.S. Case No. 4 of 1960 (Pab) and let out the same to their employees. Thereafter, the said property was enlisted as vested property. R.S. record of right was prepared in the name of Korunamoyee Das Gupta. The respondent No. 3 leased out the said property to the petitioner as yearly lease in V.P. Misc.

Case No. 3 (Pab) of 1986-87. Thereafter, the petitioner Imam Gazzali Institute took permanent lease of 1.29 acres of land from plot No. 801 of Mouza Dakkhin Raghobpur, Pabna and constructed their four storied building thereon and started to run the function of their institution in the name of “Imam Gazzali School and College”. As per provision of new law relating to Vested Property the lease of the petitioner has been cancelled on 11.04.2001. The law does not provide any provision allowing any one to get lease of two or more pieces of land at a time.

Suchitra Sen, daughter of Karunamoyee Das Gupta, a famous actress of the sub-continent was born in the disputed premises. The Government has decided to establish “Suchitra Sen Memorial Complex” in her birth place to protect and preserve her memory.

Accordingly, the Deputy Commissioner, Pabna issued the notice to vacate the premises.

6.

In writ petition No. 6766 of 2011 it has been, inter alia, stated that the petitioner is an organization.

Many cases by way of public interest litigations have been filed by them. A report had been published in ‘The Daily Sokaler Khabor’ on 13.07.2011 that paternal house of Suchitra Sen has been grabbed by some people taking support from law enforcing agencies. The local people disclosed that Suchitra Sen, with her family, left for Kolkata at the time of partition of India. The said house was listed as vested property. In 1987, Jamat-e-Islam, organized education center using unjust force, took lease of the said house and the adjacent land. The police failed to take steps against those land grabbers. The District Administration had issued a notice to them to vacate the premises. Imam Gazzali Institute has rebuilt the house and constructed few shops for letting out the same for business purpose. It is the constitutional duty of the respondents to preserve the birth place of Suchitra Sen

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and structure thereon considering her contributions in the cultural arena.

7.

The added respondent No. 7 filed affidavit-inopposition in writ petition No. 6766 of 2011. In fact, this added respondent No. 7 in his affidavit-inopposition reiterated his case as made out in writ petition No. 4608 of 2009 and further stated that the land appertaining to D.S. Khatian No. 88 and plot No. 587 jointly owned by (1) Prasanna Biswas (2) Uma Prasanna Biswas and (3) Ananda Prasanna Biswas.

The said land was never listed as a ‘natural heritage’ site by the Ministry of Culture and there is no record with either the Ministry of Culture or the Ministry of Land to prove that the scheduled land was the paternal property of Suchitra Sen. There is no public interest involved in dispossessing the respondent No. 7 from the scheduled land, which is a vested property and had been leased out to the respondent No. 7. This writ petition has been filed suppressing material facts and for the malafide purpose for harassing the respondent No. 7 who has been enjoying lawful possession in the same.

8.

Mr. Abdur Razzaq, the learned Senior Counsel appearing for the petitioner, at the out set submits that at the time of passing the impugned order of eviction the Additional Deputy Commissioner (Revenue), Pabna, neither followed the connected provisions of law and circular relating to the Vested and Nonresident Property nor the relevant provisions of the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordinance, 1970 (East Pakistan Ordinance No.24 of 1970). He submits that it was the duty of the respondents to issue a show cause notice giving the petitioner an opportunity of being heard before passing the order of eviction. He submits that earlier the Government in writing assured that the disputed property would be leased out to the petitioner on yearly basis until adoption of the law of permanent settlement. Accordingly, the petitioner spent huge money to repair and re-construct the structure thereon legitimately expecting that the authority will lease out the disputed property to the petitioner permanently. The respondents are barred by the principles of estoppel in taking any steps to evict the petitioner from the premises after issuing Annexure–E. He submits that the principles of natural justice has also been violated by giving the order of eviction without issuing any opportunity of the petitioner of being heard. Mr. Razzaq seriously attacks on the maintainability of the writ petition No.

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6766 of 2011 saying that the said rule has been obtained by suppressing the material facts. He submits that this petitioner took over possession of the disputed property exhausting the process of law and has possessed the same depositing lease money but the petitioner of the writ petition No. 6766 of 2011 has termed the petitioner as “land graver” which is unfortunate. The disputed property has been using as educational institution so the language as used addressing the institution is unacceptable and such type of wording in the petition should be discouraged.

9.

The learned Attorney General, appearing for the respondents in Writ Petition No. 4608 of 2009, submits that the disputed property is the vested and non-resident property. The original owner of the said property was Karunamayee Das Gupta, father of Suchitra Sen, famous artist in the cultural arena of the sub-continent. Related vested property laws allowed the Government to manage, control, administer and dispose the vested properties. After taking decision to protect and preserve the memory of Suchitra Sen, the Government issued the impugned notice to the petitioner to vacate the premises stating that the Government has taken decision to establish “Suchitra Sen Smriti Sangrashala” in her birth place. He submits that after expiry of the period of lease it was the duty of the petitioner to vacate the possession of the premises. At present the petitioner has become unauthorised occupant in the premises and he is not entitled to get any protection to remain in possession from this Court. He submits that at the time of allowing the petitioner to repair the building the Government imposed a condition that the petitioner shall not acquire any right in the property for reasons of payment of repairing cost. He submits that since the “Imam Gazzali Institute” has already constructed their own four storied building in a different place, allotted by the Government, the eviction will not affect the future of the students of the said Institution.

The learned Attorney General submits that second writ petition is that, in fact, the second petition is redundant in view of the fact that the Government has already taken decision to establish “Suchitra Sen Smriti Sangrahashala” in the property in question and in order to implement the decision, the impugned notice for eviction has been issued. After so eviction of the petitioner of writ petition No. 4608 of 2009, the Government shall take other positive steps for establishment of the ‘Suchitra Sen Smriti Sangrahashala’.

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10. Mr. Manzill Murshid, the learned Advocate for the petitioner of Writ Petition No. 6766 of 2011 submits that this writ petition has been filed by way of Public Interest Litigation for a direction upon the Government to preserve and protect the birth place of great actress Suchitra Sen narrating some facts gathered from the newspaper and the petitioner was not aware about the facts of leasing out the property to Imam Gazzali Institute and pendency of the Rule and order of stay in Writ Petition No. 4608 of 2009 so he has failed to bring the said story in petition. He submits that Suchitra Sen is a symbol of pride of our cultural arena. It is the constitutional duty of Government to preserve and protect her birth place.

11. We have heard the learned Advocates for the petitioners and the learned Attorney General for the Government, peruse the writ petition, affidavit-inopposition and other materials on record.

12. The petitioner of Writ Petition No. 4608 of 2009 took lease of the disputed property in V.P. Misc.

Case No. 3(Pab)/86-87 which indicates that the said V.P. Case was started sometimes in 1986-87. There is nothing before us whether the scheduled land was enlisted as enemy property before 1969 and thereafter vested and non-resident property legally or not. Since both the parties admitted that the disputed property is the vested and non-resident property, we are of the view that the process of management, administration and disposal of the same should be regulated by the laws and circulars relating to Vested and Non-resident Property.

13. The submission of Mr. Razzaq that the authority did not comply the provision of Government and Local Authority Land and Buildings (Recovery of Possession) Ordinance, 1970 at the time of issuance of impugned notice does not deserve any consideration in view of the admission of the parties concerned that the scheduled property is vested property.

14. Another aspect was raised in affidavit-inopposition filed by added respondent No. 7 of W.P. No. 6766 of 2011, that original owners of the scheduled property were Prassanya Biswas, Uma Prssanaya Biswas and Annada Prassanya Biswas not Karunamayee Das Gupta, father of Shuchitra Sen. But in 2009 when he filed W.P. 4608 of 2009 did not state anything regarding the ownership of the schedule property. A leasee is not legally entitled to make any dispute regarding the title of the lease hold property

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against the lessor before leaving the possession of the same as leasee.

15. In exercise of power conferred by clause –(1) of Article 30 of the Constitution of Pakistan, the President of Pakistan proclaimed Emergency on 06.09.1965. On that day, the Defence of Pakistan Ordinance was promulgated in exercise of powers under clause (4) of Article 30 read with clause (2) of Article 31 of the Constitution to meet emergency. On the same day, i.e., on 06.09.1965 the Central Government of Pakistan, in exercise of power vested under section 3 of the Defence of Pakistan Ordinance, 1965, issued the Defence of Pakistan Rules. The power conferred in sub-rule (1) of Rule 182.of the Defence of Pakistan Rules, the then Governor of East Pakistan passed an Order in the name of East Pakistan Enemy Property (Land and Buildings) Administration and Disposal Order, 1966.

Clause-4 of the said order provided the provisions of the administration and disposal of enemy property which runs as follows :“4. Disposal of Property: (1) Except as provided in sub-paragraph (2) the custodian shall not transfer or otherwise dispose of any enemy property vested in him without the previous approval of the Provincial Government.

(2)The custodian may grant lease of or let out, any such enemy property for a period not exceeding one year at a time.

(3) Notwithstanding anything contained in any other law for the time being in force or in any agreement, a person to whom any enemy property is leased or let out under sub-paragraph (2) shall not acquire any right of occupancy in such property and shall not be entitled to hold over after the expiry of the period of lease.

(4) Notwithstanding anything contained in any other law for time being in force or in any agreement, the lessee or tenant in respect of any enemy property leased or let out under subparagraph (2) shall be liable to be evicted without notice from such property at the expiry of the term of the lease.

16. On revocation of the Defence of Pakistan Ordinance, the Enemy Property (Continuance of Emergency) Ordinance, 1969 was promulgated on 16.02.1969 wherein it was provided that the provisions of Defence of Pakistan Rules, mentioned in

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first column of the schedule to the Ordinance, shall continue in force and shall have effect subject to the modification specified in the second column thereof.

The purpose of the Ordinance was that notwithstanding the withdrawal of Emergency, and the Defence of Pakistan Ordinance ceasing to have effect, certain provisions of the Defence of Pakistan Rules made under the said Ordinance were sought to be continued relating to control of trading with enemy and control of firms and vesting and administration of property belonging to them.

17. Subsequent position of the connected laws had been discussed in the case of M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Their Lordships of the Appellate Division , inter alia, observed in the said case, “The Ordinance IV of 1974 the Enemy Property (Continuance of Emergency Provisions)(Repeal) Ordinance, 1974, which repealed the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969 and provided, inter alia, that all enemy property vested in the Custodian of Enemy Property appointed under the previsions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government, meaning Government of Bangladesh. There was another Ordinance No. V of 1974. The Vested and NonResident Property (Administration) Ordinance 1974, which provided for the management and control of the vested and non-resident properties in the manner set out in the Ordinance. These Ordinances were replaced by Act XLV of 1974, Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974, and Act No. XLVI of 1974 the Vested and Non-Resident Property (Administration) Act, 1974. There had been two subsequent enactments, namely Ordinance XCII of 1976, the Vested and Non-Resident Property (Administration) (Repeal) Ordinance, 1976 which repealed the Vested and Non-Resident Property (Administration) Act, 1974 followed by Ordinance XCIII of 1976 the Enemy Property (Continuance of Emergency Provision) (Repeal) (Administration) Ordinance, 1976, which has amended Section (3) of Act XLV of 1974 by providing

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

that the properties which had vested in the Government, the right of administration, control, management and disposal of by transfer or otherwise be conferred on the government or of such officer or authority as the Government may direct.”

18.

In the case of Mofazzal Hossain and another Vs. Bangladesh, reported in 43 DLR (AD) 137, it has been observed by the Appellate Division , “The Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974 (Act XLV of 1974) on being amended by the Enemy Property (Continuance of Emergency Provisions) (Repeal) (Amendment) Ordinance, 1976 (Ordinance No. XCIII of 1976) by the relevant clause of section 3 provides that all enemy property vested in the custodian of the enemy property appointed under the provisions of the Reference of Pakistan Rules and continued in force by the Ordinance ( 1 of 1969) shall vest in the Government and shall be administered, controlled, managed and disposed of by transfer or otherwise by the Government or by such officer or authority as the Government may direct. Circular dated 23rd May, 1977 of the Ministry of Land Administration and Land Reforms Division containing instruction for administration, management and disposal of vested property by clause 4(1), provides that ADC (Rev) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Sub-divisional officer in whose jurisdiction the property is situated.”

19. The relevant portions of circular of the Government dated 23.5.1977 run as follows :4(1) The Additional Deputy Commissioner (Revenue) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Sub-divisional Officer in whose jurisdiction the property is situated.

(2) No such approval shall be necessary for granting lease of or letting out any such property for a period not exceeding one year at a time.

5.A person to whom any vested property is leased out or let out under paragraph 4(2) shall not acquire any right of occupancy in such property and shall not be entitled to hold on after the expiry of the period of lease.

6.

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The lessee or tenant in respect of any vested property shall be liable to be evicted from the said property at the expiry of the period of lease.

Clause 7: If any vested property is found in unlawful possession of any person, Sub-Divisional Officer under whose jurisdiction the said property is situated, shall issue notice on the person in unlawful possession to show cause within period not exceeding 7(seven) days as to why he will not be evicted therefrom and after giving the person an opportunity of being heard may enforce surrender of such property. For this purpose the Sub-Divisional Officer may use or goes to be used such force as may be necessary.

20. Mr. Razzaq relying upon Clause-7 of the Circular submits that there is specific provision that seven days’ notice is to be served upon the incumbent giving an opportunity of being heard. He submits that the Circular is binding upon the maker. Issuing the impugned notice of eviction the respondents violated their own Circular which is the guiding principle to deal with the administration of Vested and Nonresident Property. Mr. Razzaq further submits that the principle of natural justice also demands that before receiving an order of eviction the person who has been possessing the property for about 23 years is entitled to get notice. In this regard Mr. Razzaq relied upon the case of M/S. Delta Constructions Ltd. Vs. Chairman, 2nd Labour Court and another, reported in 28 DLR 365. In the cited case it was held, “The said circular is obviously on administrative act and cannot said to have the force of a piece of legislation. Nevertheless, the binding nature of this circular cannot be ignored, ......”

21. Mr. Razzaq also relied on the case of Chairman, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, reported in 56 DLR (AD) 24. In the cited case their Lordships of the Appellate Division have observed, “It is now a settled principle that even where provision for show cause notice and affording opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred.”

22. Mr. Mahbubey Alam, the learned Attorney General relied upon the Circular itself and submits that Clauses- 5 and 6 are applicable for the lessee who after getting lease was inducted into the possession

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and after expiry of the period of lease he became unauthorized occupant and Clause – 5 clearly provides that after expiry of period of lease the lessee shall not be entitled to hold the possession of the property and liable to be evicted. He submits that Clause-7 is applicable for the person who is in unlawful possession, not for the lessee who became unauthorized occupant after the expiry of the period of lease. He submits that the words “unlawful possession of any person” have been used in clause-7 meaningfully for making deference with the former leasee and unauthorized occupant. He submits that the Circular has got no legal force and on the basis of Circular an administrative order cannot be declared unlawful.

23. Clause- 4(4) of the East Pakistan Enemy Property (land and Buildings) Administration Order 1966 started with a non-obstante clause and specifically provided that lessee after expiry of the period lease shall liable to be evicted without any notice but in circular dated 23.5.1977 no such provision has been provided. Clause No.4(4) of Order clearly provided that the same is applicable for the “lessee” or “tenant” in respect of property leased out under sub-clause (2) of Clause 4 of the Order but Clause-7 of the Circular dated 23.5.1977 is applicable for “any person” who is found in “unlawful possession” in the vested property.

The “words” and “language” used in those two provisions have made a clear difference between them. Those were made objectively. In view of apparent difference we find substance in the submission of the learned Attorney General.

24. Clauses 5 and 6 of the Circular dated 23.5.1977 provided that after expiry of period of lease the lessee shall become unauthorized occupant. In Clause 5 it has been provided that the person shall not acquire any right of occupancy after getting lease of vested property and shall not be entitled to hold on the property after the expiry of the period of lease and it has further been provided that he shall liable to be evicted from the said property after the expiry of the lease period. In both the clauses the word “shall” has been used meaningfully which indicated that it is the duty of the lessee, after expiry of the period of lease, to leave the property. It is his obligation. If we accept the position that the words “unlawful possession of any person” have been used in clause– 7 of the Circular for the former lessee as well then also after the expiry of the period of lease the former lessee is not entitled to hold property.

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25. The subsequent legislation to deal with vested property, is, Awc©Z m¤úwË cªZ¨vc©b AvBb, 2001 - Section 14 of the said Act says, “A¯nvqx BRviv cª`Ë cªZ¨vc©b‡hvM¨ m¤úwË m¤úwK©Z weavb | - (1) GB AvBb cªeZ©‡bi c~‡e© miKvi †Kvb cªZ¨vc©b‡hvM¨ mcwË A¯nvqx BRviv cª`vb Kwiqv _vwK‡j, BRviv `wj‡j ev Ab¨ †Kvb `wj‡j ev Ab¨ †Kvb AvB‡b ev †h †Kvb Av`vj‡Zi wm×v‡š— wfbœi~c hvnv wKQyB _vKzK bv †Kb, DI“ BRvivi †gqv` †k‡l ev GB AvB‡b cªe©Z‡bi cieZx© 360 (wZbkZ lvU) w`b, hvnv c~‡e© nq, AwZevwnZ nIqvi ms‡M ms‡M DI“ BRviv evwZj ewjqv MY¨ nB‡e Ges BRviv MªnxZv Awej‡¤^ DI“ m¤úwËi `Lj cwiZ¨vM Kwi‡eb ev †Rjv cªkvm‡Ki wbKU `Lj eySvBqv w`‡eb | Section 2(T) defined the “cªZ¨vc©b‡hvM¨ m¤úwË” which runs as follows :“cªZ¨vc©b‡hvM¨ m¤úwË A_© Awc©Z m¤úwË AvB‡bi Aax†b ZZ¡veavqK KZ©„K Awc©Z m¤úwË wnmv‡e ZvwjKvf~I“ Kiv nBhv‡Q | GBi~c m¤úwËi g‡a¨ (A) hvnv GB AvBb cªeZ©‡bi Ae¨ewnZ c~‡e© miKv‡ii `L‡j ev wbqš¿‡Y wQj ; ev ...........”

Awc©Z m¤úwË has been defined in section 2(Ka) which runs as follows :2(K) Awc©Z m¤úwË A_© Awc©Z m¤úwËi AvB‡bi Aax‡b miKv‡i b¨¯Z m¤úwË| Section 3 of said Act provided a overriding provision which runs as follows:AvcvZZ ejer Ab¨ ‡Kvb AvB‡b Ab¨i~c hvnv wKQyB _vKzK bv †Kb GB AvB‡bi weavbejx Kvh©Ki _vwK‡e| By an amendment section 14 substituted by the following provision:AvB‡bi aviv 14 Ges Dcaviv (1) cwie‡Z© wbg¥i“c Dcaviv cªwZ¯nvwcZ nB‡e, h_vt-

as DI“ Gi (1)

(1) Awc©Z m¤úwË cªZ©vc©b bv nIqv ch©š— DI“ †Rjv cªkvm‡Ki wbqš¿‡b _vwK‡e Ges wZwb cªPwjZ AvBb Abyhvqx Dnv BRviv cª`vb Kwi‡eb| 26. In view of the circumstances as mentioned above and the law and circular related thereto we have no other alternative but to hold that the possession of the petitioner in the scheduled property cannot be protected in any way and he is not entitled to hold

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

possession of the property. The petitioner has got no option but to vacate the premises. It is the discretion of the Deputy Commissioner either to lease out or not to lease out any vested property subject to law related thereto.

27. It appears from the impugned letter dated 22.6.2009 that the petitioner was requested to vacate the premises within 8.7.2009. That is the petitioner was allowed 15 days time to vacate the same. It is not the case of the petitioner that the Government compelled the petitioner to vacate the premises without any notice. If we accept the submission of Mr. Razzaq that ‘unauthorized occupant’ as used in clause 4 and 5 and “any person in unlawful possession” of clause 7 connote same meaning even then it can be concluded that the respondents allowed 15 days time to the petitioner to vacate the premises, that is, clause 7 of the circular has been complied with substantially. The contents of the notice issued on 22.6.2009 addressing the Chairman, Imam Gazzali Institute from the office of the Deputy Commissioner are as follows:“welqt- wf,wc, †Km bs-3(cve) /86-87 fzI“ Awc©Z m¤úwËi `Lj †Q‡o †`qv cªms‡M| Dc‡ivI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q †h, wf,wc, wgm †Km bs-03(cve)/86-87 fywI“ Awc©Z m¤úwË m¥„wZ msMªn kvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ m¤úwËi `Lj †Q‡o †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv| 28. It is clear from the notice that the Government has taken decision to establish a “¯g„wZ msMªnkvjvÓ in the scheduled property and for the purpose to establish the same the premises is required and accordingly, the petitioner is allowed time till 08.7.2009 to hand over possession of the same. Notice is making something known to a person of which he was or might be ignorant. Notice in its legal sense is information concerning a fact, actually communicated to a person by unauthorized person. Giving notice means that it should reach the hands of a person to whom it has to be given and the giving is complete when it has been offered to a person. Here, the Deputy Commissioner; the controller of the vested property, is the authorized person to lease out the scheduled property and he has taken decision not to lease out the same to the petitioners for establishment of “¯§„wZ msMªnkvjvÓ and 15 days time has been allowed the petitioner to vacate the possession of the premises and

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it is not denied that the said notice has not been offered or communicated to the petitioner. That is provision of service of notice has been complied with.

It is to be relevant here to mention that circular is not law. The same is an announcement or directive typically in the form of a printed leaflet intended to be sent to many persons. The same is a administrative guide line.

29. Submission of Mr. Razzaq so for violation of the principle of natural justice is concerned it appears to us that the latest law has given wide discretion to the Deputy Commissioner in respect of leasing out the vested property. Said discretion is subject to the provision of law. We do not find any law to deal the affairs of leasing out the Vested property except circular which has got no force of law. That administrative desecration authorized by law that the Deputy Commissioner possesses power to administer the vested property. In the case of R.S. Das Vs. Union of India reported in AIR 1987 SC page 593 the Supreme Court of India observed, “It is well established that the rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of right which may be affected and the consequences which may entail its application depends upon the facts and circumstances of each case”. Here, the Government has decided not to lease out the scheduled property to the petitioner in order to establish a “¯§„wZ msMªnkvjvÓ . The petitioner has got no right in the property after the expiry of the period of lease. We shall conclude this issue with the words of Magarry in the case of John Vs. Rees (1969) 2 ALL E R. Page 274 which are:“the result is obvious from start”. The petitioner has not acquired any right due to his previous lease he has not been affected in not giving him any opportunity of being heard. In the case of Breen Vs. Amalgamated Engineering Union reported in (1991) 2B 175 Lord Denning stated that if a man see us a privilege to which he has no particular claim such as an appointment to some post or other then he can turned away without word. He need not be heard . No explanation need be given. But if he is a man whose property is at stake, or who is being deprive of his livelihood then reasons should be given why he is being turned down and he should be given a chance to be heard. Here the scheduled property is the paternal property of Shuchitra Sen and Government is the custodian of the same having empowered to

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

administer and dispose the same. The petitioner has no right in the property.

30. The next submission of Mr. Razzaq is that in view of Annexure-E the petitioner would get yearly lease of the disputed property until the Government adopts decision to lease out the vested property permanently. Getting such assurance the petitioner repaired the building spending huge amount legitimately expecting that he would get yearly lease and thereafter get permanent settlement after adoption of the law of permanent settlement. He submits that such legitimate expectation has got basis. After issuance of Annexure–E, the Government continuously leased out the said property to the petitioner. Mr. Razzaq relied upon the case of Dr. Abeda Begum and others Vs. Public Service Commission, reported in 59 DLR (HCD) 182. In the said decision it is held that the doctrine of legitimate expectation can be invoked if the impugned decision affected a person by depriving of some benefit or advantage which he had been in the passed permitted by the decision-maker to enjoy and which he can legitimately expect to continue to do until there has been communicated to him some rational grounds for withdrawing it. He also cited the case of Shirajul Islam and others Vs. Bangladesh, reported in 60 DLR(HCD) 79 wherein it has been held, “ The mere reasonable or “legitimate expectation” of a citizen in such a situation, may not by itself be a distinct enforceable right, but failure to consider and given due weight to it may render the decision arbitrary, and this is now the requirement of due consideration of a ‘legitimate expectation” form part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every ‘legitimate expectation’ is a relevant factor requiring due consideration in a fair decision making process”.

“Doctrine of ‘legitimate expectation’ is a new emerging concept. In Halsbury Laws of England it is stated that the expectation may arise either from representation or promise made by the authority, including and implied representation or from consistent past practice. In the case of Attorney General of Hong Kong Vs. Ng Yuen Shin, reported in 1983- 2 ALL.E.R. 346 it was held, “When a public authority has promised to follow a certain procedure it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with its statutory duty”. In the case of Schmidt Vs. Secretary

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of State, reported in 1969 1 ALL.E.R. page -409 it was observed, “ Even in the cases where there is no legal right he may still have legitimate expectation of receiving the benefit of privilege such expectation may either from express promise or from existence of regular practice which the applicant can reasonable expectation by invoking principle analogous to natural justice and fair play in action. In the case of Madras City Wine Merchant’s Association -Vs- The State of Tamil Nadu reported in AIR 1994(SC) 509 it was observed by the Supreme of India, “Legitimate expectation may arise (a) if there is a express promise given by Public Authority (b) because of the existence of a regular practice which the claimant can reasonably expect to continue, (c) such an expectation must be reasonable”.

31. We shall consider the submission of Mr. Razzaq on Legitimate expectation finally along with his next submission on “Promissory estoppel” because two doctrines and arguments under the label of estoppel and legitimate expectation are substantially the same.

32. Mr. Razzaq submits that giving assurance to settle the disputed property permanently issuing Annexure-E the respondents are barred by the Provision of estoppel to say that they would not lease out the premises to the petitioner. Mr. Razzaq relied upon the case of M/S. Motilal Padampal Sugar Mills Co. Ltd. Vs. The State of Uttor Prodesh reported in AIR 1979 S.C. Page 621. In cited case it was observed, “The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.” His next citation is the case of Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another reported in 46 DLR (AD) 148 wherein it was held, “Having taken the decision on agreement that the specialized textile mills will be returned to their former Bangalee

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owners, it is not available to the Government, now to say that the decision had been revised in so far as the Mohammadi is concerned although in the case of other five concerns mentioned in the Annexure-B the Government had already released them.”

33. The letter relating to lease out the disputed property measuring an area of .2125 acre of plot No. 587, S.A. Khatian No. 99 of Mouza Gopalpur Pabna has been communicated to the chairman Imam Gazzali Institute, Pabna under Memo No.214 V.P. dt.23.3.1987, contents of the aid notice runs as follows:welqt- wf, wc, †Km bs-3(cve) 86-87 fzI“ 215 †Mvcvjcyi gnj-vi †nvwìs bs-197 Gi BRviv cªms‡M | ÒAvcbvi 11-12-1986 Zvwi‡Li 10bs ¯^viK c‡Î Pvwn`v ‡gvZv‡eK wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j-wLZ k‡Z© †gvZv‡eK gvwmK 250/- UvKv fvWvq A¯nvqx GKmbv wfwËK 1393 m‡bi Rb¨ Avcbvi AbyKz‡j BRviv †`Iqv nBj| AÎ Av‡`k 1jv †cŠl 1393 nB‡Z Kvh©Kix nB‡e Ges Zvi c~‡e©i e‡Kqv fvovi UvKv c~e© avh©K…Z nv‡i AÎ wefv‡M cª`vb Kwi‡Z nB‡e| Ó 34. Three of the terms and conditions as stipulated in the said letter are relevant here to mention which are:(2) Avcwb webvbygwZ‡Z AÎ m¤úwËi Dci cvKv/ KvPv ev †Kvb cªKvi evox Ni wbg©vb /ˆZqvi Kwi‡Z cv‡wieb bv| (4) BRvivi mgqmxgv †kl A‡š— A_©vr erm‡ii cªvi‡¤¢ BRviv bevq‡bi Av‡e`b Kwi‡Z nB‡e Ab¨_vq BRviv evwZj ewjqv Mb¨ nB‡e| 6| AÎ Av‡`k cªvwßi 1 gv‡mi g‡a¨ 1.50 cqmv gy‡j¨i †Wwgi Dci GKwU wjR `wjj Mªnb Kwi‡Z nB‡e| DI“ †Wwg BRviv`vi‡K mieivn Kwi‡Z nB‡e| 35.

From the aforesaid letter it appears that the authority leased out the premises not the land because the words “wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j-wLZ kZ© †gvZv‡eK” lease was granted for a period of one year but same was renewable. There is nothing in the writ petition that as per clause 6 of the conditions any lease agreement was ever executed.

36.

From annexure-G series it appears that the petitioners paid rent of years 1409 and 1410 B.S. on 14.6.2003, 1411 B.S. on 17.5.2004, 1412 B.S. on 25.5.2005, 1413 B.S. on 29.6.2006, 1414 B.S. on

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25.3.2008, 1415 B.S. on 7.8.2008 which clearly showed that the petitioner violated the terms No.4 of the letter above quoted. That is the petitioner was a habitual defaulter in payment of lease money.

37.

Mr. Razzaq relied upon Annexure-E and made his submission on legitimate expectation and promissory estoppel. Said letter was issued from Ministry of Land addressing the Chairman Imam Gazzali Institute. The contents of Annexure-E runs as follows:welqt- wf,wc, †Km bs-3(cve) /86-87 fzI“ Awc©Z I AbvMwiK m¤úwË cvebv Bgvg Mv¾vjx BbwówUD‡Ui Rb¨ ¯nvqx BRviv e‡›`ve¯— cªms‡M| myÎt- Zvnvi ¯^viK bs-1713 wf,wc, Zvs 16/7/91 Bs 31-3-98evs Dc‡ivI“ welq I c‡Îmy‡Î wb‡`©kG“‡g Rvbv‡bv hvB‡Z‡Q †h, eZ©gv‡b Awc©Z m¤úwI“ ¯nvqx e‡›`ve‡¯—i weavb bvB d‡j hZw`b ch©š— Awc©Z m¤úwË m¤ú‡K© PzWvš— wmÜvš— M„wnZ bv nq ZZw`b ch©š— D‡j-wLZ Awc©Z m¤úwË cªwZôvbwUi AbyKz‡j GKmbv e‡›`ve¯— Ae¨vnZ _vwK‡e| 38. From the said letter it indicated that the same was issued on the basis of the application of the petitioner dated 16.7.1991 for permanent settlement which was rejected but it was mentioned that the process of yearly lease should be continued.

Accordingly yearly lease was continued till 1415 B.S. Subsequently another letter was issued on 25.05.1992 (annexure-F) upon which Mr. Razzaq relied on and submitted that getting assurance of permanent settlement the petitioner spent huge money for repairing the house thereby the petitioner legitimate expected that he may get the land permanently. The contents of letter dated 25.2.1992 are as follows:“Dc‡ivI“ welq I m~‡Î D‡j-wLZ ¯^vi‡Ki eiv‡Z Rvbvb hvB‡Z‡Q †h, Awc©Z m¤úwËi Dci Aew¯nZ Bgvg Mv¾vjx BbwówUDU bvgxq ¯‹zjwUi evoxi †givgZ LiP ¯‹zj KZ…©c¶ ¯nvbxq cªkvm‡bi mg¥wZG“‡g wb‡Riv enb Kwi‡Z cv‡i| Z‡e© kZ© _vwK‡e †h GB †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i †Kvb AwaKvi /`vex eZ©vB‡e bv|Ó 39. If we consider the Annexure-C, E and F together it will be apparent that the Government never assured the petitioner that they shall lease out the disputed property permanently to the petitioner rather

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in the latest letter dated 25.5.1992 it has been clearly stated- "Z‡e kZ© _vwK‡e †h, GB †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i †Kvb AwaKvi/`vex eZ©vB‡e bvÓ Moreover, accepting the clause 4, 5 and 6 of the circular dated 23.5.1977 the petitioner took lease of the premises. Estoppel can only arise from a clear definite statement and the same must be unambiguous. To create an estoppel against a party, his declaration, act or omission must be of an unequivocal character. We do not find anything in the papers submitted by the petitioners that the Government has given any such declaration that the scheduled vested property should permanently be leased out to the petitioner. It is relevant here to refer the case of Union of India Vs. International Trading Co. reported in AIR 2003 SC. 3983. In the said case company was granted a fishing permit. It was, however, not renewed by the Government due to change in policy. A writ petition filed by the Company was dismissed by a single Judge but was allowed by the Division Bench in appeal. The Government approached the Supreme Court.

Allowing the appeal and dismissing the writ petition the Supreme Court of India held that there was change of policy by the Government and conscious decision was taken in public interest and the doctrine of promissory estoppel and legitimate expectation had no application.

40. Considering the aforesaid facts and laws we are of the view that the submission of Mr. Razzaq on legitimate expectation and promissory estoppel does not carry any force.

41. Mr. Razzaq submits that Writ Petition No. 6766 of 2011 filed by way of public interest litigation is not maintainable. The allegation as brought in the said writ petition against the added respondent who is the petitioner of the Writ Petition No.4608 of 2009 is not acceptable. He was not the unauthorized land graver. He was inducted into possession of the property by the respondents as lessee in 1986-87 and he had been possessing the same legally and has been possessing the same after expiry of period of lease. He had filed an application to get the said lease renewed for the year 1416 and 1417 B.S.

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42. Mr. Manzill Murshid, the learned Advocate appearing for the petitioner of writ petition No. 6766 of 2011 submits that he has made the said statement relying upon the news item published in the News Paper. He was not aware about the story of lease of disputed premises in favour of the petitioner. He submits that he has come before this court, in order to protect and preserve the disputed property which is the birth place of famous artist Suchitra Sen. The petitioner has had no intention to assault the petitioner of Writ Petition No. 4608 of 2009 in any way.

43. The learned Attorney General submits that since the District Administration has already taken steps to establish “Suchitra Sen Smriti Sangrahashala”, in fact, the second writ is redundant. From the impugned order dated 22.6.2009 (Annexure-A) of writ petition No.4608 of 2009 it appears the District Administration has already taken decision to establish a Sangrahashala. The contents of the said order runs as follows:ÒDchyI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q †h, wf,wc, wgm †Km bs-03(cve)/86-87 fyI“ Awc©Z m¤úwˇZ m¥„wZ msMªnkvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ Awc©Z m¤úwËi `Lj †Q‡o †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv|Ó 44. At the time of hearing the Rule the learned Deputy Attorney General produced the Photostat copy of the case record of V.P. Case No.3 (Pab) of 19861987 in this Court. On perusal of the case record it appears that the Deputy Commissioner, Pabna by a letter communicated under Memo No. †Rt cªt /cve/ ivR¯^/wf,wc,†Km-3(cve)/86-87/2009-1463 dated 02.09.2009 has requested the Secretary, Ministry

Land for necessary approval stating the present position of scheduled property. Relevant portion of the said letter run as follows:D‡j-L¨ †h, Dcgnv‡`‡ki cªL¨vZ PjwPÎ Awf‡bÎx mywPGv †m‡bi ‰cwÎK wfUv n‡”Q Awc©Z evWx| mywPÎv †mb GB evox‡Z Zvi ˆkke AwZevwnZ K‡ib Ges cvebv miKvix evwjKv DPP we`¨vj‡qi covïbvKvjxb fvi‡Z P‡j hvb| cvebvi myax mgvR `xN©w`b hver GB weL¨vZ Awf‡bÎxi ®g„wZ weRwoZ evoxi eZ©gvb jxR evwZj K‡i Z_vq mywPÎv †mb ¯g„wZ msMªnkvjv ¯nvc‡bi

I LNJ (2012)

Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

`vex K‡i Avm‡Q Ges G wel‡q RvZxq I ¯nvbxq ˆ`wbK cwÎKvmg~n mg_©‡b cªeÜ I msev` cªKvwkZ n‡q‡Q| mykxj mgv‡Ri c‡¶ †_‡K H evoxwU‡Z mywPÎv‡mb ¯g„wZ msMªnkvjv ¯nvc‡bi Rb¨ Av‡e`b cvIqv hvq Ges G wel‡q †Rvi `vex Ges Z`wei Pj‡Q| ewb©Z Ae¯nvax‡b my‡Î ewb©Z Ae¨vnZfv‡e GKmbv jx‡Ri Aby‡gv`b evwZj K‡i †Rjv cªkvmb‡K Ab¨vb¨ wf,wc, m¤úwË jxR cª`v‡bi g‡Zv ewb©Z wf,wc, m¤úwË GKmbv jxR cª`v‡bi ¶gZv w`‡q †Rjv cªkvm‡bi Z˦veav‡b Dcgnv‡`‡ki cªL¨vZ Awf‡bÎx mywPÎv †m‡bi ¯g„wZ msi¶‡bi my‡hvM `v‡bi Rb¨ webxZ Aby‡iva Kiv n‡jv| (W.

G,‡K,Gg. gbRyi ‡Rjv cªkvmK, cvebv|

qualifications but he has failed to give all informations before the Court. However we are concluding this issue with remarks made by Bhagabati J. in the case of S.P. Gupta Vs. Union of India (popularly known as First Judge’s Case) reported in AIR 1982 S.C. Page 148 . It was observed that the frontiers of the public expending far and wide and new concepts and doctrines which will change the complexion of the law and which were so far embedded in the womb of the future are beginning to be born.

48.

In view of the facts and circumstances as mentioned above our considered conclusions are that (1)

Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired in 1415 B.S. and the authority concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

(2)

Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money, has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this Court to get lease to protect his possession. Consequently the direction as sought for is hereby refused.

(3)

Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4)

The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen considering her contributions in our cultural arena.

Kvw`i)

45.

In view of the fact that the District Administration has already taken steps to evict the leasee for establishment of “Suchitra Sen Smrity Sangrahashala” and the submission of the learned Attorney General for the State that Government has already taken decision to establish Suchitra Sen Srimiti Sangrashala in the disputed property, the rule as issued in the writ petition No. 6766 of 2011, in fact, has become infractuous.

46.

The petitioner of first petition, i.e. Writ petition No. 4608 of 2009 entered into the scheduled property legally and had been in possession the same in accordance with law. The statements made in the second writ petition are not whole true.

47.

At the time of filing writ petition by way of public interest litigation the petitioner of the second writ petition should have narrated the material facts correctly. In the case of Ashok Kumer Panday Vs. State of West Bengal reported in AIR 2004 S.C. page 280 it has been observed by the Supreme Court of India that before passing any order on PIL the court must be satisfied about (i) the credentials of the applicants (ii) The prima-facie correctness of the information given by him; and (iii) the information being specific and definite. The information should also show gravity and seriousness. In the present P.I.L. the credential of the applicant is well acceptable but he failed to fill up the other two requirements as quoted above. To file P.I.L. petition, the petitioner must come not only with clean hands but also with clean heart, clean mind and clean objective. We have no doubt that the petitioner has got all those

288

49. In the result both the rules in Writ Petition No. 4608 of 2009 and writ petition No. 6766 of 2011 are

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Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

discharged with the direction and observation made above.

50. Stay granted in Writ Petition No. 4608 of 2009 and ad-interim direction passed in Writ Petition No. 6766 of 2011 are hereby recalled and vacated.

51. At this stage Mr. Imran Siddique, the learned Advocate for the petitioner in Writ Petition No. 4608 of 2009 prayed for stay of the operation of the order of this Court for a period of two months to shift the school from the scheduled property. For the ends of justice the petitioner is allowed two months’ time to shift the school from the scheduled property.

52. The photocopy of the V.P. Case No.3 (Pab) of 1986-87 be kept with the record.

53.

Ed.

Send the copies of the Judgment and order to(1)

Secretary, Ministry of Land,

(2)

Secretary, Ministry of Works,

(3)

Secretary, Ministry of Cultural Affairs,

(4)

Deputy Commissioner, Pabna and

(5)

Additional Deputy Commissioner (Revenue) Pabna for taking steps accordingly.

I LNJ (2012)

I LNJ (2012)

Md. Bodiuzzaman Milon Vs.Bangladesh Commerce Bank Limited and another (Md. Abu Zafor Siddique J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Mamnoon Rahman, J. Mr. Md. Abu Zafor Siddiuqe, J. Judgment 06.02.2012

} Md. Bodiuzzaman Milon . . . .Petitioner Vs Bangladesh Commerce } Bank Limited And } Others ....Opoite Parties.

Abdus Salam Sikder. ...Petitioner. } Vs } Uttar Bank Limited. ....Opposite Party

Code of Civil Procedur (V of 1908) Section 115 Artha Rin Adalat (viii of 2003) Section 44(2) Taking into consideration of the provisions of section 44(2) of the Artha Rin Adalat Ain, 2003 as well as the decision given by Apex Court, the impugned orders are being interlocatory orders are not maintainable under section 115 of the Code.. ....(27) New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others, 42 DLR (AD) 221; Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others, 46 DLR (AD) 174; Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited, 5 MLR (AD) 290; Md. Harun-or Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Kazi Gowaherul Islam (K J Islam) vs. Standard Cooperative Credit Society Ltd. and another, 50 DLR 333, Belayet Hossain vs. Bank Indosuez, 50 DLR 431; Iftekhar Afzal and another vs. Publi Bank Limited and others, 50 DLR 623; Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd., 14 BLC 501 ref.

Judgment Md. Abu Zafor Siddique, J: All these Rules were heard together and disposed of by a common judgment as they do involve similar questions of facts and laws though the parties are different.

2.

In Civil Revision No. 1454 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.47 dated *Civil Revision No. 1454 of 2009, Civil Revision No. 1318 of 2009 and Civil Revision No.195 of 2010.

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23.10.2008 passed by the learned Joint District Judge, and Artha Rin Adalat, Court No.02, Dhaka in Artho Execution Case No. 18 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

3.

In Civil Revision No.1318 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.54 dated 23.10.2008 passed by the learned Joint District Judge, Court No. 2, Dhaka in Artha Rin Jari No.15 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

4.

In Civil Revision No.195 of 2010, Rule was issued calling upon the opposite party to show cause as to why the Order No.17 dated 03.08.2008 passed by the learned Additional Joint District Judge (Artha Rin Adalat), Jessore in Money Execution Case No.07 of 2007 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

5.

In all these revisional applications the common fact is that the respective opposite parties namely different financial institutions instituted “Artha Rin Suits� in the respective Artha Rin Adalat impleading the respective petitioners and others as the defendants for realization of loan amount. In all these cases the plaintiffs-opposite-parties obtained decree against the defendants and pursuant to the decrees obtained by them they have filed execution cases as per the provision of Artha Rin Adalat Ain of 2003 (shortly the Ain of 2003) in the respective Artha Rin Adalat (shortly the Adalat) as define in section 2(kha) of the 2003. During pendency of the respective Artha Rin Execution cases, the respective decree holder banks filed applications under section 34 of the Ain of 2003 for detaining the petitioners in civil jail, in order to realize the decreetal amount. In all these revisional applications before this Court, the petitioners have challenged the orders passed by the Adalat directing to detain the respective petitioners as per section 34 of the Ain of 2003. Being aggrieved by and dissatisfied with the aforesaid orders passed by the court below the respective petitioners moved these applications and obtained the present Rules.

6.

In Civil Revision Nos. 1454 of 2009 and 1318 of 2009 Mr. Md. Nurul Amin, the learned Advocate appearing on behalf of the petitioners submits that the Court below without applying its judicial mind and without considering the facts and circumstances

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and the provision of law most illegally and in an arbitrary manner passed the impugned judgment and orders and thereby the Court below committed error occasioning failure of justice. He further submits that in the case in hand the Court below without complying with the provision of section 34(9) of the Ain of 2003 passed the impugned judgment and order and thereby committed error of law occasioning failure of justice. He further submits that the Court below without issuing any notice or giving any opportunity of being heard passed the impugned judgment and orders and thereby the Court below not only committed an error of law but also violated the principle of natural justice. However, he submits that the petitioner could have preferred writ petition before this court challenging the impugned order because the question of maintainability of the instant Revisional applications is involved. He also prays for a direction from this court enabling the petitioner to approach the proper forum.

7.

Mr. Md. S.M. Maniruzzaman with Mr. M. Ataul Gani, the learned Advocate appeared on behalf of the petitioner in Civil Revision No.195 of 2010.

He, however, adopted the submission made by Mr. Md. Nurul Amin, the learned Advocate.

8.

Mr. Shahajada Al Amin Kabir, the learned Advocate appearing on behalf of the opposite party in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 vehemently opposes the Rule and submits that the Court below in the cases in hand committed no error of law occasioning failure of justice in passing the impugned judgments and orders and as such all these Rules are liable to the discharged with costs. By referring to the provision of the Ain of 2003 he submits that the revisional applications under section 115 of the Code of Civil Procedure is not at all maintainable as no revision lies against any interlocutory order passed by the Adalat exercising the power conferred by the Ain of 2003.

9.

No one appear on behalf of the opposite party Civil Revision No.195 of 2010.

10. We have heard the learned Advocates, perused the revisional applications, impugned judgments and orders, annexures and the provision of law.

11. On perusal of the same it appears that in all these Rules the opposite parties instituted suits in the respective Adalats for realization of outstanding loan from the borrower petitioners and after due process

of law the respective courts passed decrees in favour of the opposite parties. Pursuant to the provisions laid down in the Ain of 2003, the respective opposite party instituted execution cases as per Chapter-VI of the Ain of 2003. Thereafter, the Courts below proceeded with the execution cases in the respective Artha Rin Adalat. During pendency of the execution cases on the applications made by the opposite parties the Courts below passed the impugned judgment and orders for detaining the respective petitioners in civil jail. Being aggrieved the petitioners moved this Court.

12. Section 34(1) of the Ain, 2003 deals with the provision relating to detaining any person in civil jail which runs as follows; “34| (1) Dc-aviv (12) Gi weavb mv‡c‡¶, A_© FY Av`vjZ, wWµx`vi KZ©„K `vwLjK…Z `iLv‡¯Íi cwi‡cw¶‡Z, wWµxi UvKv cwi‡kv‡a eva¨ Kwievi cÖvqm wnmv‡e, `vwqK‡K 6 (Qq) gvm ch©šÍ †`Iqvbx KvivMv‡i AvUK ivwL‡Z cvwi‡e|” 13. It appears that from the above provision of law the Court namely “Artha Rin Adalat” can pass an order detaining a judgment debtor in civil jail up to 6 (six) months for realization of outstanding dues. It appears that in the present cases in hand the Courts below passed the orders on the basis of the applications made by the respective Banks. On perusal of the same it is apparent that the Courts below namely “Artha Rin Adalats” reserve the powers to detain a person for the period stipulated in sub-section (1) of section 34.

14. Hence, the main question which is to be decided in these revisions is whether the instant revisional applications under section 115(1) of the Code of Civil Procedure are at all maintainable against any interlocutory order passed by the Artha Rin Adalat exercising the powers conferred by the provisions of the Ain of 2003. It is apparent that the instant proceedings are pending being Artha Rin Execution Cases and before the competent Artha Rin Adalat established as per section 2(kha) read with section 4 of the said Ain of 2003. Apart from that as per section 5 of the Ain of 2003, the Court enjoys exclusive jurisdiction relating to all matters for realization of loan of the financial institutions as defined in section 2(ka) of the said Ain.

I LNJ (2012)

Md. Bodiuzzaman Milon Vs.Bangladesh Commerce Bank Limited and another (Md. Abu Zafor Siddique J.)

15. Section 26 to section 39 of the Ain of 2003 deal with the detailed provisions relating to execution proceeding by a Artha Rin Adalat and these provisions described the procedure for realization of the loan after passing of decree by the Adalat. There is no doubt about the jurisdiction of the Court, in which the execution cases have been filed and proceeded. As per the Ain of 2003 all these Courts are, “Artha Rin Adalat”. Section 2(kha) of the said Ain runs as follows; “(L) ÔÔAv`vjZÓ ev ÔÔA_© FY Av`jZÓ A_© GB AvB‡bi D‡Ïk¨ c~iYK‡í aviv 4 G DwjøwLZ Aaxb cÖwZwôZ ev †NvwlZ †Kvb Av`vjZ A_ev A_© FY Av`vjZ wnmv‡e MY¨ nB‡e g‡g© †Kvb hyM¥-†Rjv R‡Ri Av`vjZ|” 16. Now it is to be seen whether impugned orders passed by the executing Court in the present Artha Rin Execution Case are revisable under section 115(1) of the Code of Civil Procedure and as such, the said issue needs to be dealt with before entering into the merit of the cases.

Section 3 of the Ain of 2003 reads as follows: ÔÔ3| AvB‡bi cÖavb¨- AvcvZZt ejer AeÉ †Kvb AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi weavbvejxB Kvh©Ki nB‡e|Ó Furthermore, section 26 of the Ain of 2003 runs as follows: 26 | †`Iqvbx Kvh©wewa AvB‡bi cÖ‡qvM- The Code of Civil Procedure, 1908 Gi Aaxb gvwb wWµx Rvix msµvšÍ weavbejx, GB AvB‡bi weavbejxi mwnZ AmsMwZc~b© bv nIqv mv‡c‡¶, GB AvB‡bi Aaxb wWµx Rvixi †¶‡Î cÖ‡hvR¨ nB‡e|Ó 17. It is important to mention that in promulgating this “Remedial Statute”, the Ain of 2003, the legislature has intended to cure some defects, errors and procedures of the repealed Artha Rin Adalat Ain, 1990, in order to ensure speedy recovery of long pending outstanding dues advanced by the financial institutions to the borrowers who are in the habit of developing a culture of non-payment of loan. To put an end to such culture some special provisions have been made including rigorous provisions like sections 19, 34, 41, 42 and 44 in the Ain, 2003. If the defaulters or borrowers are allowed to challenge each and every order passed by the Adalat, the Ain of 2003 will have to face the same consequence like

310

that of the Ain, 1990. So, the Court must avoid construction of statute which will render the statute meaningless and ineffective and the court is to adopt the rule of liberal construction so as to give meaning to all parts of the provisions and to make the whole statute effective and operative. Apart from that the Ain of 2003 is a special law effective for the very purpose of realizing loan from the defaulted borrowers.

18. From the above quoted provisions of law, it is manifest that the legislature with the intention of speedy recovery of loan liability without any hindrance or obstruction being created by the judgment-debtors by way of filing frivolous application before the Court of law to delay and frustrate realization of the decretal amount incorporated non-obstinate clause in section 3 of the Ain of 2003 to have the effect that the said Ain shall prevail over other laws which are contrary to the said Ain of 2003.

19. As to the significance of non-obstante clause our Apex Court in the case of New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others reported in 42 DLR (AD) 221 held as follows; “a non-obstinate clause is usually used in a provision to indicate that, that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstinate clause.”

20. Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceeding so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin suit as well as for execution of decrees are applicable which are not in conflict with the Ain of 2003.

21. Section 44 of the Ain of 2003 is relevant to the instant civil revisional applications, which runs as follows: “44| AšÍe©Z©xKvjxb Av‡`k-(1) A_© FY Av`vjZ, gvgjvi mwVK I cwic~Y© wePvi I b¨vq wePv‡ii cª‡qvR‡b Ges wePvi Kvh©µ‡gi Ace¨envi cÖwZ‡ivaK‡í ‡hiƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kiv msMZ g‡b Kwi‡e, †miƒc

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Md. Bodiuzzaman Milon Vs.Bangladesh Commerce Bank Limited and another (Md. Abu Zafor Siddique J.) I LNJ (2012)

AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|

provisions of sections 5 (4) and 5(5) of the Artha Rin Adalat Ain.”

(2) Dc-aviv (3) Gi weavb mv‡c‡¶, GB AvB‡bi Aax‡b †Kvb Av`vjZ KZ©„K cÖ`Ë †Kvb AšÍ©eZ©xKvjxb Av‡`k‡K D”PZi †Kvb Av`vj‡Z Avcxj ev wiwfkb AvKv‡i weZ©wK©Z Kiv hvB‡e bv|

25. In the case of Kazi Gowaherul Islam (K J Islam) vs. Standard Co-operative Credit Society Ltd. and another reported in 50 DLR 333, Belayet Hossain vs. Bank Indosuez reported in 50 DLR 431, and the case of Iftekhar Afzal and another vs. Publi Bank Limited and others reported in 50 DLR 623 their Lordships also held that a revisional application under section 115 of the Code of Civil Procedure against any interlocutory order passed by an Artha Rin Adalat is not at all maintainable in law.

(3) Dc-aviv (2) Gi weavb m‡Ë¡I, †Kvb c¶ aviv 41 Gi Aaxb `v‡qiK…Z Avcxj GBiƒc †Kvb welq hyw³ wnmv‡e MÖnb Kwi‡Z cvwi‡e, hvnv Dcwi-E¢õ¢Ma weav‡bi Kvi‡Y weZwK©Z Kiv hvq bvB, Ges Avcxj Av`vjZ Hiƒc welq we‡ePbvq MÖnY Kwiqv b¨vqwePv‡ii ¯^v‡_© Dchy³ †h †Kvb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó 22. In view of above provision of law no interlocutory order passed by the Artha Rin Adalat under the Ain of 2003 is appealable or revisable. In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others reported in 46 DLR (AD) 174 the Appellate Division held as follows; “revision is impliedly barred because the Adalat Act being a special legislation setting up a special Court the remedies will follow as provided therein and if there is any exclusion indicated therein, as in section 6, it will include a remedy under the general law.”

23. In the case of Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited reported in 5 MLR (AD) 290 the Appellate Division further held; “this Division has clearly held that revision does not lie against an order of Artha Rin Adalat.”

24. In the case of Md. Harun-or Rashid Vs. Pubali Bank Limited and others reported in 12 MLR (AD) 343 the Appellate Division held : “Joint reading of section 6 (1) and 7 of the Act shows that all judgment and order not being a decree of the Artha Rin Adalat have been treated as final and conclusive. In such situation the party aggrieved by such judgment or order of the Artha Rin Adalat cannot invoke revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure inasmuch as to construe otherwise would be inconsistent with the

26. In the cases as mentioned above, the said observations/decisions of our Apex Court and this Court were given under the Ain of 1990, which has already been repealed, wherein there was no specific provision debarring exercise of revisional jurisdiction by the Court concerned including the High Court Division. The impugned orders as have been passed by the executing Court are interlocutory orders, not being a decree, as has been found in the case of Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd. reported in 14 BLC 501 wherein it has been held: “In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure.”

27. In view of the above facts and circumstances, the provision of law as contained in section 44(2) of the Ain of 2003, as well as the decisions of our Apex Court and this Court as referred to above, we have no other optition but to hold that the impugned orders in these revisional applications passed by the executing Court are interlocutory orders, and as such revision under section 115 of the Code is not maintainable.

28. Accordingly, all these Rules are discharged as not maintainable without any order as to costs. The order of stay granted in Civil Revision No.195 of 2010 is hereby vacated. The interim orders granted

I LNJ (2012)

Md. Bodiuzzaman Milon Vs.Bangladesh Commerce Bank Limited and another (Md. Abu Zafor Siddique J.)

by this Court in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 are hereby recalled.

29. The respective petitioners of Civil Revision Nos. 1454 of 2009 and 1318 of 2009 are however, directed to surrender before the Courts below within 2 (two) months from the date of receipt of the order.

30. Furthermore, the petitioners are at liberty to invoke any other Jurisdiction as prayed for to challenge the impugned orders, if so advised.

Communicate this order at once.

Ed.

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I LNJ (2012)

Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

HIGH COURT DIVISION (Civil Appellate Jurisdiction)

Mr. Khondker Musa Khaled, J. Mr. S.H. Md. Nurul Huda Jaigirdar J. Judgment 10.05.2012

} Maisha Corporation (Pvt.) Ltd. . .Appellant VS Bangabandhu Sheikh } Mujib Medical } University (BSMMU) and others. ...Respondents.

Arbitration Act (I of 2001) Section 43(1) (a) (IV) Neither the Bangabandhu Sheikh Mujib Medical University (shortly BSMMU) can be compelled to accept the Washing Plant nor any price of such plant can be allowed to spend from the Public Fund as it is contrary to Public Policy.

To enforce the decision of the Syndicate of BSMMU in the line of amicable settlement like a decree of suit for specific performance of contract the award was passed by the Tribunal. Hence the Tribunal has exceeded limit of its lawful authority in passing the award and thereby it has violated the provision of section 43(1) (a) (IV) of the Arbitration Act, 2001, the impugned judgment and order is maintained.

An arbitration proceeding between the appellant Maisha Corporation (Pvt) Ltd. and the respondent Bangabandhu Sheikh Mujib Medical University (herein after will be called claimant-Company and B.S.M.M.U respectively) was started out of a dispute over the supply., acceptance, installation and commissioning of a Hospital Grade Laundry System( Washing Plant) for 2000 bed facilities at the . ........(2) B.S.M.M.U. However, it is true that the supplier quoted a consolidated price in the 2nd stage tender document against some changed machineries and country of origin in respect of Boiler and of some items was not mentioned. Even then the purchaser issued notification of award and executed the contract. But such an omission or oversight cannot exonerate the first part company from supplying the machineries as agreed by it at the time of submitting first stage tender, which is a part of the contract as per deed of contract itself. So there was no scope for him to change quality of the machineries and country of origin at the second stage tender. It is evident that

*First Miscellaneous Appeal No. 23 of 2010

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the learned Arbitrators in their judgment, while passing the Award, could not be satisfied that Washing Extractors supplied by first party were fully suitable, but stated “not totally unsuitable." ....( 21) It appears that the contract was executed on the basis of specifications given in the first stage tender and price quotation of the 2nd stage tender. Deviation as detected from the first stage tender, on the basis of which the claimant-Company was made responsive, is not legally permissible.

Moreover, notification of award dated 30.7.2006 and subsequent contract deed were executed on the basis of both the tenders, which is clear from those documents. If the contract was made on the basis of the 2nd tender alone, what is use of the first stage tender? Rather it has been included as valid documents in the deed of contract and notification of award. So it is totally unacceptable to us that the second stage tender is the only basis of the contract. ......( 23) Neither the claimant-Company supplied some of the machineries of the Plant namely: Washer Extractors, Flat Iron and Boiler of Denmark and U.S.A in origin in accordance with its own technical specification in the first stage tender, nor the supplied Washing Plant can meet the full requirement of B.S.M.M.U's 2000 bedded Hospital keeping conformity within international standard as per the report of the experts. When it is apparent that the goods do not correspond to the specifications of the tender and are not also fit for the purpose for which it will be used, the purchaser may reject such goods or any part thereof, if it fails to pass any test or inspection as contemplated under Clause- 31.7 of the General Conditions of Contract (GCC). ...(28) When the contract is violated and amicable settlement failed, the B.S.M.M.U issued a letter dated 14.08.2008 on the Managing Director of Maisha Corporation (Pvt) Ltd. asking for replacement of Boiler, Washer Extractors and Flat Iron, and supply those components made in U.S.A and Denmark as per first stage tender documents. Such a letter cannot be treated as unreasonable and malafide. But on getting this letter, the claimant-company referred the matter to the Arbitrators without rectifying the wrong. ....( 29) The whole process was done very hurriedly.

Moreover, when the claimant M.P. was nominated as Member of the Syndicate to see welfare of the

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B.S.M.M.U., he was not supposed to engage himself in business in the said public institution. ......( 31) So the Award to enforce a decision of the Syndicate, not being within the scope of arbitration, has clearly violated section 43(l)(a)(IV) of the Arbitration Act, 2001. ......( 32) When the matter was pending before the Amicable Settlement Committee, it was taken up by the Syndicate by inserting a supplementary agenda in the Meeting. Such an extraneous decision should not be imposed on the assigned Purchase Committee, which is legally responsible to accept or refuse to accept the supplied goods of the contract on valid ground. ......(39) The B.S.M.M.U. can be compelled to accept the Washing Plant as supplied by the ClaimantCompany nor any price of the plant or compensation for any part thereof can be allowed to spend from the Public Fund. It is against the Public Policy meaning thereby that Public Fund cannot be misused by granting such Award. As such, the Award is not legally sustainable. .....(40) Neither there was any scope to enforce a decision of the Syndicate by the Tribunal nor any such prayer was made by the first party seeking arbitral award.

Evidently the award was passed by the Tribunal to enforce the decision of the Syndicate in the line of amicable settlement proposed by the supplier like a decree of suit for specific performance of Contract.

In doing so, the Tribunal appears to have exceeded limit of its lawful authority in passing the award and as such, the Tribunal appears to have violated the provision of section 43(I)(a)(IV) of the Arbitration Tribunal Act. 2001, which is obviously, a cogent ground for setting aside Arbitral Award. .....( 41) Mr. Abdul Quayum and Mr. Md. Masudul Haque, Advocates, .....Appellant Mr. Mahbubey Alam, Attorney General and Mr. Tanjub-ul Alam, Advocates. ..For respondents Judgment Khondker Musa Khaled, J:

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An arbitration proceeding between the appellant Maisha Corporation (Pvt) Ltd. and the respondent Bangabandhu Sheikh Mujib Medical University (herein after will be called claimant-Company and B.S.M.M.U respectively) was started out of a dispute over the supply., acceptance, installation and commissioning of a Hospital Grade Laundry System (Washing Plant) for 2000 bed facilities at the B.S.M.M.U.

3. On 4.9.2009, the B.S.M.M.U published a notice in the newspaper inviting tender for procurement of Hospital Grade Laundry System to cover 2000 bedded hospital facilities. The appellant-claimantcompany participated in the tender through its Managing Director, Md. Shahiduzzam and got the contract award on 30.7.2006 to supply, install and commission of the washing plant. After delivery of the washing plant, the purchaser B.S.M.M.U. conducted inspection of the same and found that the supplied washing plaint was not in accordance with the specifications, and fit for its 2000 bedded hospital. As such, the B.S.M.M.U could not accept the washing plant. Subsequently, the parties to the contract also tried to settle the dispute amicably, but the attempt was unsuccessful. Then complaintCompany referred the matter to the Arbitration.

Arbitration Tribunal was formed comprising Mr. Justice A.T.M. Afzal (Chairman), Mr. Justice Md. Awlad Ali (Member) and Barrister Aktar Imam (Member), to resolve the dispute. The claimantCompany filed statement of claim before the Arbitration Tribunal seeking following reliefs: a) Contract Price- Tk. 4,11,50,000/-. b) Interest on the contract price eat the rate of 17% from 3.4.2007 till the date of award. c) Office expenses at the rate of Tk.30,0007per month with effect from 3.4.2007 till the date of award. d) Staff salary at the rate of Tk.1,60,000/from 3.4.2007 till the date of award.

This First Misc. Appeal under section 48 of the Arbitration Act, 2001 is directed against the judgment and order dated 1.12.2009 passed by the learned Additional District Judge, 2nd Court, Dhaka in Arbitration Misc. Case no. 543 of 2009 setting aside the Arbitral Award dated 21.6.2009.

e) Time costing at the rate of 1,00,000/-from 3.4.2007 till the date of award.

2. The relevant facts for disposal of the Misc.

Appeal may be stated as follows:

h) Cost of mental agony and sufferings Tk.3,00,00,000/-.

f) For the loss of future businessTk.10,00,00,000/-. g) For the loss goodwill Tk. 5,00,00,000/-.

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

i) Legal expenses involving dispute Tk.30,00,000/-. j) Commission for extension of performance guarantee paid to the Bank Tk. 10,12,290/-.

4.

In support of the above claim, it was alleged that after execution of the contract for the supply of the washing plaint, the claimant-Company brought washing machineries at the premises of B.S.M.M.U on 3.1.2007, but the utility connections were 1

provided at the site after about 52 months. On 26.9.2007, the contractor-company installed the washing plant and requested the B.S.M.M.U. to issue acceptance certificate for payment. But the authority did not accept the same and issue acceptance certificate. Then the claimant-company sent a notice dated 22.4.2008 to the B.S.M.M.U invoking clause -39.1 of the General Conditions of Contract (G.C.C) inviting the 2nd party to settle the dispute amicably, and the then Vice-Chancellor of the B.S.M.M.U constituted an Amicable Settlement Committee which could not ultimately succeed in resolving the dispute. Then the Syndicate of the B.S.M.M.U. in its 28 meetings on 26.6.2008, discussed the proposal for amicable settlement brining a supplementary agenda and decided to accept the washing plant subject to the certain conditions. The claimant-company readily agreed to fulfill those conditions. A tripartite meeting of the Central Receiving Committee, Sub-Committee and Amicable Settlement Committee was held at last on 15.7.2008, and the Central Receiving Committee took 3 weeks time. But subsequently, the Registrar of the B.S.M.M.U. refused to accept all machineries of the washing plant and requested the claimant-Company to replace certain new machineries, which according to the first party (Company) does not cover by the terms and conditions of the contract. Since the amicable settlement failed inspite of decision of the Syndicate of B.S.M.M.U, the claimant-company preferred to go to the Arbitration under Clause -39 (2) of the section 3 of the Genejal Conditions of Contract (G.C.C).

5.

The B.S.M.M.U. as the second party to the Arbitration submitted a defence setting up a counter claim against the first party, which may be summarized as follows:

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Syndicate of the B.S.M.M.U. is the highest body of the public institution dealing with the policy matter regarding management and operation. On 9.10,2004.

Mr. Mohammad Shahiduzzaman, the then Member of Parliament (M.P) of the ruling party, was nominated as a Syndicate member of the B.S.M.M.U by the Speaker. He was also Managing Director of the claimant -company at the relevant time. Due to his undue influence, office of the Vice Chancellor initiated a proposal to purchase Hospital Grade Laundry System for 2000 bed facilities on 31.8.2005 and within a short period of 4 days, a tender was published in the daily newspaper 'Dinkal', although the University and Hospital of the B.S.M.M.U had separate committees for their own management. On 4.9.2005, the Chairman of the Central Purchase Committee of B.S.M.M.U. floated tender for procurement of Hospital Grade Laundry System with 2000 bed facilities. In response to the invitation, 5 companies including the Companies of the first party submitted tender on 12.11.2005, though the claimant-company did not have requisite experience and qualification to participate in the tender. He was also made responsive at the first stage tender. That the company had business in manufacturing and supplying cartons. Mr. Mohammad Shahiduzzam, Managing Director of the said company, actively participated in the procurement process as a tenderer and Syndicate Member of B.S.M.M.U as well. Due to his influence upon the Technical Evaluation Committee (T.E.C.), the claimant-Company was chosen as a response bidder. On 12.7.2006, the claimant-Company and another tenderer namely, Asim Construction were invited to participate in the 2nd stage tender on the basis of specification of goods to be supplied by them as per their quotation in the first stage tender.

In the 2nd stage tender, only the financial specification use to be considered according to the two stage tendering method under the regulation 39 of the Public Procurement Regulation (P.P.R.) 2003. That there was no scope to change the earlier technical specification without consent of the B.S.M.M.U. But the claimant-Company subsequently deviated from the specification of goods given in the first stage tender in a fraudulent manner.

However, the claimant-Company was ultimately

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

awarded the contract on the basis technical specification mentioned in the first stage tender and corresponding quoted price of the 2nd stage tender by notification of award dated 30.7.2006. The B.S.M.M.U. was under a mistaken belief that the load bearing capacity of the Extractors would be sufficient to serve the purpose of running the Laundry System, one shift per day for 6 hours and 5 days a week as per international standard.

6.

The Washing Plant arrived at the premises of the B.S.M.M.U. on 3.4.2007, and after holding the inspection and tests by the Sub-Committee and BUET experts and their 2 reports dated 9.12.2007 and 27.11.2007, it transpired that the supplied Washing Plant was not fit and suitable to meet the requirement of B.S.M.M.U. Report of the Mechanical Engineering Department, BUET, submitted in the month June, 2008, shows that the supplied Washing Plant was inadequate (63% deficit) for washing 2000 bed hospital facilities. The claimant-company did not supply Extractors and other machineries as per specifications of the tender documents submitted at the first stage tender.

Under the General Conditions of Contract, the purchaser may reject any goods or any part thereof if it fails to pass any test or do not conform with the specifications. That the claimant-company failed to supply goods in accordance with the first stage tender, within time of contract i.e. 180 days fror 21.8.2006. So, the 2nd party of B.S.M.M.U. prayed for dismissal of the first party's claim and also for an Award of Tk. 4,11,15,0007- as liquidated damages.

7.

The claimant-Company or examined one witness (C.W.I) while the 2nd party produced 2 witnesses, Registrar of B.S.M.M.U and Dr. Mohammad Ali an expert from BUET, who deposed on the 4 member experts' opinion prepared by the Mechanical Engineering Department of BUET in June, 2008 (Exhibit-E).

8.

After hearing the parties, the Tribunal passed the Arbitral Award dated 21.6.2009, which was unanimous except the dissenting judgment of Mr. Justice Awlad Ali in respect of awarding interest against the 2nd party B.S.M.M.U in the said award.

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The Tribunal directed the 2nd party-B.S.M.M.U. to complete acceptance of the Washing Plant and make payment of contract money along with other benefits in the following manner:"(1) The parties are bound by the decision of the Syndicate taken under supplementary agenda no. 11 dated 26.6.2008(Vide P.B. part -l, page 76, Exhibit-31), subject to the following modifications of the condition mentioned therein: a) The performance guarantee is extended for further one year from 15.07.2009; b) The warranty for the supplied machineries is extended for further two years from 15.07.2009; c) The parties are directed to complete the acceptance of the Washing Plant by the 2nd Party and the payment of the contract money (Taka4,11,50,000.00(BD)to the Party within 30 days from date of the Award; (d) All other conditions remain.

2. The 1st party shall be paid an interest at the rate of 9% per annum on the aforesaid amount from 14.08.2008 (date of cause of action) (vide PB Part-1., page 91 Exhibit -38) till the date of payment.

3. The 2nd Party- Purchaser shall pay costs of this arbitration proceeding to the 1st party supplier which we assess at TK. 15,00,000.00( Taka fifteen lac).

4. The 2nd Party - Purchaser shall pay to the 1st Party -Supplier in terms of clauses 2 and 3 above within not later than 60(sixty) days from the date of the Award."

9.

Against the aforesaid Award dated 21.6.2009 passed by the Arbitral Tribunal, the 2nd party (B.S.M.M.U.) preferred an application under section 42 of the Arbitration Act, 2001 for setting aside the Award, which was registered as Arbitration Misc.

Case no. 543 of 2009 in the Court of the learned District Judge, Dhaka. On transfer to the Court of Additional District Judge, it was heard on 17.11.2009 and judgment was delivered on

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

1.12.2009 setting aside the Award mainly on the ground that the Award was made in violation of section 43(1) (a)(IV) and 43(1) (b)(II) of the Arbitration Act, 2001.

10. Being aggrieved, the First party-(supplier company preferred this appeal under section 48 of the Arbitrator Act, 2001 for setting the aforesaid judgment dated 1.12.2009 passed by the learned Additional District Judge, Court no.2, Dhaka and restoration of the Award.

11. Mr. Abdul Quayum, the learned Advocate appearing on behalf of the appellant, submits that the contract was finally awarded after proper evaluation of 2nd stage tender documents both in respect of technical as well as financial specification after the first party was found responsive tender.

The Maisha Corporation (Pvt.) Ltd. (the first party) also supplied the machineries of the Washing Plant in accordance with such specifications as furnished earlier, and the technical Committee comprising two experts from BUET also found that the machineries were installed in accordance with the offer. In fact, an amicable settlement to the dispute was reached, which was also approved by the Syndicate of B.S.M.M.U. But unfortunately it was violated by the Central Purchase Committee of B.S.M.M.U. vide a letter dated 14.8.2008. The learned Advocate further submits that it is not a proper interpretation of law that the Arbitral Tribunal had no jurisdiction to take up such a settlement decision of the highest body of the Institution into account as the said decision of the Syndicate is very much related to the same dispute under reference to the Arbitrator. It is also submitted that the Court below has committed mistake in holding that the Arbitral award is liable to be rejected under section 43(l)(a)(IV) and section 43(l)(b)(II) of the Arbitration Act, 2001. The learned Advocate has also made submission in support of the Award assailing the impugned judgment. It is submitted that the price quoted against the aforesaid machineries in the 2nd stage tender was accepted and notification of Award was issued after modification and thereafter deed of contract was executed. According to the said contract, the claimant company supplied these machineries on the basis of the 2nd stage tender. Now

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the purchaser-B.S.M.M.U cannot ask for replacement of 3 machineries for which no price was quoted by the Company. So the claimant-company cannot be compelled to supply those new goods on the basis of first stage tender. It is further contended that the Syndicate of the B.S.M.M.U passed an order giving effect to the amicable settlement reached in between the parties, with some modifications. That the Tribunal committed no illegality directing parties to abide by the decision of the Syndicate. It is further contended that the work load of the Extractors was sufficiently explained by the claimant-Company in response to the query, and machineries were supplied in accordance with the said additional document which is part of the contract. So, the claimant-Company did not violate any part of the contract and non-acceptance of the supplied goods was illegal and arbitrary act of the 2nd party( B.S.M.M.U). With the above submissions, the learned Advocate has prayed for restoration of the Award on setting aside the impugned judgment.

12. Mr. Mahbubey Alam, learned Attorney General and Mr. Tanjib-ul Alam, learned Advocate have appeared o i behalf the respondent B.S.M.M.U. and both of them have made submissions in the following manner:According to their submissions, the Arbitral Award patently illegal, capricious and contrary to the settled fundamental principal of law as the Tribunal has directed both the parties to abide by the decision of the Syndicate. The B.S.M.M.U. is also directed to accept the Washing Plant against willingness of the purchaser and decision of the Central Purchase Committee, which is authorized body in this respect. The purchaser has also been given direction to pay the contract money within 30 days. Those directions impliedly amount to compelling performance of contract specifically (here decision of the Syndicate), though an Arbitration Tribunal has no jurisdiction to exercise such a power of the Civil Court under the Specific Relief Act. Moreover, compensation for damages in terms of money is an adequate relief for nonperformance of such a contract under section

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21 A of the Specific Relief Act. It is argued that amicable settlement was not reached due to non-acceptance of the proposal by the Central Purchase Committee. As such, it cannot be treated as a contract to be specifically enforced. Moreover, the B.S.M. M.U. in no circumstances be compelled to accept the machineries of the plant, which do not satisfy the actual requirement and falls short of specification. It is submitted that the tribunal has utterly failed to consider that the purchaser can lawfully reject any goods or any part thereof under the General Conditions of Contract, if fails to pass any test, or do not conform with specification of goods to be supplied.

Since the appellant- contractor failed on both the grounds, the Award suffers from the material misconduct by ignoring the 4- members' BUET Expert report, and it cannot be sustainable. The Arbitration Tribunal has misconstrued Clause 39.1 of the General Conditions of Contract, which merely provides opportunity of the purchaser and supplier to settle up all disputes amicably, failing which, the parties are free to take the matter before the Arbitral Tribunal. There cannot be any binding effect of the proposed negotiation at the amicable settlement attempt, but the Arbitral Tribunal has made the same binding on the parties. It is contended that while consecutive meetings of the Amicable Settlemet Committee were going on and no settlement could be reached, the unilateral settlement proposal of Maish Corporation (Pvt.) Ltd was taken up by the Syndicate and decision was given arbitrarily in a very unusual manner which is a sign of nepotism and favoritism. Next it is contended that two stage tender system as provided under the Regulation 39 of the Public Procurement Regulation 2003, the supplier cannot change unilaterally the technical specifications given in the first stage tender without minutes of tender adjustment. But the claimant-company did not supply machineries in accordance with the specification:-furnished at the first stage tender. That the Laundry System Machineries

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agreed to be supplied by the appellantcompany were not in conformity with the first stage tender and supplied goods were not fit for the purpose of running 2000 bed hospital for which the tender was invited and the contract was made. That the tribunal has failed to consider that the Managing Director of the Tenderer namely, Maisha Corporation (Pvt.) Ltd. was an interested person in the matter, but he acted in dual capacity as a tenderer and Syndicate member of the purchaser, B.S.M. M.U. So, the agreement for the supply was voidable due to practice of fraud. Expert reports of BUET and experience of the Combined Military Hospital show that the supplied Washing Plant was not fit to serve the purpose of B.S.M.M.U for 2000 bed facilities and maintain its International Standard. So, the purchaser is legally entitled to terminate the contract for default under the provision of General Conditions of Contract. It is submitted further that the learned Additional District Judge has set aside the Award on valid grounds and as such, the impugned judgment does not call for interference.

13. We have gone through the impugned judgment, the Award passed by the Tribunal and the documents available in the paper books. It appears that the learned Additional District Judge did not consider the main aspect of the case as to whether the claimant company supplied machineries of the Washing Plant in accordance with the terms of the contract, and whether the first party-claimant is entitled to get any compensation for the alleged violation of contract by the 2nd party B.S.M.M.U. 14. At the very out set let us deal with the pertinent question whether the claimant-company supplied al machineries of the Washing Plant in accordance with tin contract.

15. The procurement method appears to be of two stage tendering. In the first stage, technical specifications of the goods are invited and the 2nd stage tender is related u quotation of prices of those goods. On the basis of the firsi stage tender specifying quality and other particulars of the goods,

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

the claimant-company Maisha Corporation (Pvt.) Ltd. and another tenderer Asim Construction was made responsive and they were accordingly invited to participate in the 2n stage tender, which was considered obviously for financial specification. So both the tender documents are integral part of the contract according to the 2nd stage tendering method.

There is no scope for unilateral change in the technical specification in violation of the Regulation 39 of the Public Procurement Act, 2003.

16. Annexure-G appears to be first stage tender document dated 5.11.2005 submitted by the claimant Maisha Corporation (Pvt) Ltd. which shows that the first party claimant agreed to supply 4 Washer Extractors and Flat Iron of Denmark origin, while the Boiler was of U.S.A. But in the 2nd stage tender document dated 19.8.2006, country of origin in respect of those components were changed unilaterally. For example the country of origin in respect of 3 Washer Extractors and Flat Iron were shown to be of Sweden in place of Denmark, whereas no country of origin was stated in respect of other items including the Boiler, which was previously shown to be of U.S.A. origin. In Clause39 of the Public Procurement Regulation Act, 2003 the two stage tendering method has been defined. It shows that first stage tender only invites un-priced technical proposals describing technical performance, quality and other characteristics of the goods, services etc. Obviously it includes the country of origin of the goods previously proposed to be supplied 17. In clause- 39(3) Regulation- it is stated:

of

the Public Procuremen

"In the second stage, a procuring entity shall revise the tender document and stipulate the detailed evaluation criteria for the second stage tenders which shall include cost of ownership during the useful lifetime of the object of the procurement, where applicable, and invite all responsive tenderers from the first stage to submit their priced "best and final" tenders in accordance with the requirements of the second stage tender documents and the individual "Minutes of Tender adjustments" issued to each tenderer.'"

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18. With reference words "best and final" used in the above quoted Regulation, the learned Advocate for the appellant has argued that the 2nd stage tender being final one, the claimant-Company supplied machineries in accordance with the said tender documents and did not violate terms of the contract.

But we hold the view that such a proposition as to the finality of second tender alone has not been contemplated in the Public Procurement Regulation. It is not acceptable that the words " best and final" are used in that sense. It appears that the words'" best and final" were used in Regulation so far finality of the price of the goods is concerned, and there is no scope to change the quality and other technical specifications which were once accepted by the purchaser, and on the basis of which, the claimant-appellant was selected as responsive tenderer. According to the Regulation, quoted above, 'Minute of Tender Adjustments' is also necessary to be issued to the tenderes by the purchaser in case of any subsequent modification.

But neither the Supplier asked for any alternation in the tender documents in this respect, nor any minutes of tender adjustment was issued for alteration.

19. Referring to the Notification of Award dated 30.7.2006 ( Exhibit-7), the learned Advocate has further argued that it was issued after modification and correction in accordance with Tenderer's clarification to the queries and as such, supply of machineries were made properly accordance with the finally accepted 2nd stage tender.

20. It is true that a letter dated 24.6.2006(Exhibit3) w; issued by the Member Secretary of the Central Purchase Committee asking clarification about (1) offer of Dryer, (II quality of machineries and (III) actual working loan for 2000 bed Hospital as the first stage tender documents of the claimantCompany did not disclose any information on those matters.

Exhibit-4, a reply letter dated 4.7.2006, shows that the claimant-supplier stated about a total load bearing capacity of 132 K/G, and disclosed other particulars on those items. But nothing was disclosed about change of country of origin regarding the three Washer Extractors of Denmark,

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Boiler of U.S.A., which were clearly slated in the first stage tender documents. No minute of tender adjustment was ever issued by the purchaser as contemplated in Regulation 39(3) of the Public Procurement Regulation 2003. The specifications of the first stage tender remained valid and it cannot be said to have ever modified or corrected as alleged by the learned Advocate for the appellant.

21. So, we are unable to accept the argument advanced by the learned Advocate for the appellant that the contract was made only on the basis of 2nd stage tender quotation. Rather we hold the view that the technical specification as quoted in the first stage tender is necessary to be looked into for acceptance of the Washing Plant. However, it is true that the supplier quoted a consolidated price in the 2nd stage tender document against some changed machineries and country of origin in respect of Boiler and of some items was not mentioned. Even then the purchaser issued notification of award and executed the contract. But such an omission or oversight cannot exonerate the first part company from supplying the machineries as agreed by it at the time of submitting first stage tender, which is a part of the contract as per deed of contract itself. So there was no scope for him to change quality of the machineries and country of origin at the second stage tender. It is evident that the learned Arbitrators in their judgment, while passing the Award, could not be satisfied that Washing Extractors supplied by first party were fully suitable, but stated “not totally unsuitable."

22. The B.S.M.M.U. is the only Medical University in our country and such an important public institution should not be subjected to any compromise in purchasing machineries which are found not fully suitable for the purpose.

23. It appears that the contract was executed on the basis of specifications given in the first stage tender and price quotation of the 2nd stage tender.

Deviation as detected from the first stage tender, on the basis of which the claimant-Company was made responsive, is not legally permissible. Moreover, notification of award dated 30.7.2006 and subsequent contract deed were executed on the basis

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of both the tenders, which is clear from those documents. If the contract was made on the basis of the 2nd tender alone, what is use of the first stage tender? Rather it has been included as valid documents in the deed of contract and notification of award. So it is totally unacceptable to us that the second stage tender is the only basis of the contract.

24. However, there is no dispute that lenders were floated, award notification issued and contract agreement was executed for the supply installation and commission of Hospital Grade Laundry System (Washing Plant) for 2000 bedded facilities. Now let it be examined whether the supply of Washing Plant machineries can satisfactorily serve the requirement of the B.S.M.M.U. hospital, which is designed to be built as a modern Hospital of International standard.

25. It appears that the Washing Plant receiving Sub-Committee comprising of four members submitted a report dated 9.12.2007 stating that it was not fit for operating 2000 bed hospital and that the Boiler was found to be a low quality component in comparison to other components of the plant and incapable of taking required load. However, the BUET expert of the same Sub-Committee submitted a separate report on 27.11.2007 stating that the machineries of the Washing Plant were supplied in accordance with the tender specifications, which is not correct as we have discussed earlier. However, they (experts) were unable to answer to be vital question whether the plant was capable of taking work load for 2000 bed hospital or not. In this respect, those experts suggested to form another independent body to observe the Washing Plant in running. condition for a period of three months.

26. Again, the Vice-Chancellor of B.S.M.M.U. requested the Vice-Chancellor of BUET to get the plant examined by the BUET experts and give appropriate comments regarding suitability of the Washing Plant for 2000 bedded hospital facilities.

The Vice-Chancellor of B UET referred the same to the Head of the Department of Mechanical Engineering, BUET, and 4-member expert teem was formed and they submitted a detailed report in the month of June, 2008, (Exhibit-E).

Concluding remarks made by those BUET Experts shows that

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

the supplied Washing Plant was not adequate ( i.e.

63% deficit) for washing 2000 Hospital bedded facilities with one shift per day for the specified period of wash as desired by the B.S.M.M.U., if the washing is done in everyday, which is said to be International standard to be followed.

27. Again on B.S.M.M.U's request, the Combined Military Hospital(C.M.H) has also supplied a detail information about the load bearing capacity of its own Laundry System on 18.3.2009. It shows that the working load of the said Hospital's Washing Extractors is 130 K.G./cycle for 850 bed only. The load bearing capacity of Washing Extractors supplied by the first party-Company was about 132 or 152 K.G./cycle for 2000 bedded hospital, which is not at all fit for the purpose and not in the line with the standard market practice. It appears that the first party quoted for supplying machineries having work load capacity of 132 K.G., which was found on the that the supplied machineries can cover work load of 152 K.Gs. where as there port of the 2 BUET_experts dated 27.11.2007(Exhibit-21) shows that the requirement of the B.S.M.M.U is 621 K.G. if it operates in one shift 5 days for 6 hours.

Evaluation report of the Mechanical Engineering Department, BUET (Exhibit-E) also shows that if the standard washing duration is followed, the Extractors load bearing capacity becomes inadequate.

28. Thus we find that neither the claimantCompany supplied some of the machineries of the Plant namely: Washer Extractors, Flat Iron and Boiler of Denmark and U.S.A in origin in accordance with its own technical specification in the first stage tender, nor the supplied Washing Plant can meet the full requirement of B.S.M.M.U's 2000 bedded Hospital eeping conformity within international standard as per the report of the experts. When it is apparent that the goods do not correspond to the specifications of the tender and are not also fit for the purpose for which it will be used, the purchaser may reject such goods or any part thereof, if it fails to pass any test or inspection as contemplated under Clause- 31.7 of the General Conditions of Contract (GCC).

29.

It appears that when the contract is violated

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and amicable settlement failed, the B.S.M.M.U issued a letter dated 14.08.2008 on the Managing Director of Maisha Corporation (Pvt) Ltd. asking for replacement of Boiler, Washer Extractors and Flat Iron, and supply those components made in U.S.A and Denmark as per first stage tender documents.

Such a letter cannot be treated as unreasonable and malafide. But on getting this letter, the claimantcompany referred the matter to the Arbitrators without rectifying the wrong.

30. Admittedly, the Managing Director of the claimant-Company, Mr. Mohammad Shahiduzzaman, being a Member of the Parliament was nominated as a Member o the Syndicate of the B.S.M.M.U. and he was in the said capacity from 9.10.2004 to 28.10.2006. From the date of inviting tender till 22.10.2006, he was found an active Syndicate Member of the B.S.M.M.U and during this tenure, he was also the Managing Director of the claimant Company and actively participated in the process of tender including proper evaluation, awarding contract etc. There is serious allegation that his Company having no technical and financial qualification to supply the Washing Plant unduly influenced the then authority of the B.S.M.M.U. through him to get tender award in its favor and the whole process of awarding the tender in favor of his Company demonstrate nepotism and favoritism as he was a very influential in the decision making process at the relevant time. It appears that Mr. Mohammad Shahiduzzaman did not make any declaration as to his relationship with the tenderer but participated both as a tenderer as well as Syndicate Member. This highly unethical and contrary to the Regulations of Public Procurement Act, 2003. The allegation of undue influence by exerting his position as a Syndicate Member and Member of Parliament, cannot be brushed aside.

Because, the claimant-company obtained work order without mentioning the country of origin against the some items in the 2nd stage tender, and in spite of the fact that load bearing specification as stated in the supplementary tender document was not sufficient for B.S.M.M.U's requirement for 2000 bed hospital and below the standard market practice as evident from the experts’ opinion, the claimant-Company got

301

Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

the supply award. Unilateral change in the 2n stage tender document does not also quality him to get the contract award, but the then authority of B.S.M.M.U. overlooked all these vital defects and disqualifications. Those speak volume about malafidness and fraudulent practice, which can vitiate the whole process rendering the contract voidable.

31. This respect, Mr. Mahbubey Alam, the learned Attorney General, has brought to our notice that the office note was initiated on 31.8.2005, signed by the Vice-Chancellor on 1.9.2005 (ExhibitB) and the tender notice was published in the Daily Dinkal on 4.9.2005 and the tender was submitted on 5.11.2005 (Annexure-G).The whole process was done very hurriedly. Moreover, when the claimant M.P. was nominated as Member of the Syndicate to see welfare of the B.S.M.M.U., he was not supposed to engage himself in business in the said public institution. In this respect, the learned Attorney General has referred to the section 1(3.1) of the General Conditions of Contract.

32. Apart from the merit regarding the contractual obligations, it transpires from the impugned judgment that the Arbitral Award has been set-aside only on the ground that the Tribunal passed the Award to enforce the terms of alleged amicable settlement as per decision of the Syndicate of the B.S.M.M.U. thought the dispute was not amicably settled and it was not at all the subject matter of the Tribunal to implement such a decision. So the Award to enforce a decision of the Syndicate, not being within the scope of arbitration, has clearly violated section 43(l)(a)(IV) of the Arbitration Act, 2001. We do not also find any document to show that any final decision was taken by the Amicable Settlement Committee at any point of time though it was so written in the decision of the Syndicate.

Rather it appears that the claimant-company submitted an unilateral proposal for amicable settlement on 22.6.2008, which was taken up by the Syndicate and decided to accept the same on 26.6.2008 in the name of amicable settlement. It can be easily understood that if such amicable settlement was reached in between the parties, there was no reason to take the matter before the Syndicate for

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any further decision. It appears from the record that while the Amicable Settlement Committee had been holding meetings and fixed another date for the 3rd meeting, the matter was hurriedly taken before the Syndicate and the decision was obtained according to the desire of the claimant-Company.

33. Section 43 of the Arbitration Act, 2001 has specifically laid down the grounds for setting aside the Award of the Arbitral Tribunal, which runs as follows: "(1) An arbitral award may be set aside if(a) The party making the application furnishes proof that(i) a party to the arbitration agreement was under some incapacity; (ii) The arbitration agreement is not valid under the law to which the parties have subjected it; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable due to some reasonable causes to present his case: (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decision on matters beyond the scope of the submission to arbitration; Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with the provisions of this Act, or, in the absence of such agreement, was not in accordance with the provisions of this Act. (b) the court or the High Court Division, as the case may be, is satisfied that(i) the subject matter of the dispute is not capable of settlement by the arbitration under the law for the time being in force in

Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

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Electrolux Model :CFLEX900

eY©bvg‡Z bZzb fv‡e mieivn I ¯’vcb Ki‡Z n‡e| 110Kg Electrolux Model :W31100C

eY©bvg‡Z cÖwZ¯’vcb Ki‡Z n‡e| 1 .5 ton/Hr.or More

Flat Iron

b) The warranty for the supplied machineries is extended for further two years from 15.07.2009;

Denmark

a) The performance guarantee is extended for further one year from 15.07.2009;

Washer extractor

"(1) The parties are bound by the decision of Syndicate taken under supplementary agenda no. 11 dated 26.6.2008(Vide Paper Book part -1-page 76, Lixhibit-31). Subject to the following modification of the condition mentioned therein:-

FULTON

36. Accordingly, he prayed for contract price, interest, compensation and other costs and not to enforce the contract. Neither there is any scope to seek enforcement of any decision of the Syndicate meeting or proposed amicable settlement nor any such subject matter was referred to the Tribunal for implementation. The Tribunal has nothing to do with such a decision of the Syndicate in the arbitration forum. The obligation of the parties to the contract can only be looked into in relation to the damage claimed. But the Arbitration Tribunal appears to have passed the Award in the following manner enforcing the decision of the Syndicate in the line of proposed amicable settlement, which was admittedly failed and has no existence at all.

USA

35. It appears from the notice dated 9.9.2008 sent by the claimant first party for resolving the dispute by arbitration and application submitted by him before the arbitral Tribunal that since the attempt of amicable settlement had failed, the first party incurred huge loss and injury in respect of money, time, goodwill, mental agony and sufferings in various ways, he is entitled get an award on all those counts.

38. From the above quoted part of the Award it is evident that the tribunal has actually given effect to the decision of the Syndicate which was passed in the line of the proposed amicable settlement, though it was not agreed by administrative authority of the B.S.M.M.U. Rather the 2nd party asked for replacement of three components according to the first stage tender by a letter dated 14.8.2008 issued by the Registrar. The letter is reproduced below:

Boiler

34. The section 43(l)(a)(iv) clearly provides that if the Award contains decision on matters beyond the scope of the submissions to the Arbitration or it deals with dispute not contemplated by or not falling within the terms of reference, it is liable to be set aside.

37. Moreover 9% yearly interest from 14.8.2008( cause of action) till disposal and cost of Arbitration proceedings amounting to Tk. 15,00,0007- was made payable by the 2nd party within 60 days from the date of award.

Remarks

(iii) the arbitral award is induced or affected by fraud or corruption."

(d) All other conditions remain."

Capacity

(iii) the arbitral award is in conflict with the public policy of Bangladesh or

Model

(ii) the arbitral award is prima face opposed to the law for the time being in force in Bangladesh;

302

c)The parties are directed to complete the acceptance of the Washing Plant by the 2nd party and the payment of the contract money (Taka 4,11,50,000.00(BD) to the 1st party within 30 days from date of the Award;

Country of Origin

Bangladesh;

Name of item

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Maisha Corporation (Pvt) Ltd. Vs.Bangladesh Sheikh Mujib Medical University (Khonkder Musa Khaled, J.)

39. Thus it appears that reasonable ground was given by the B.S.M.M.U. authority for nonacceptance of the Washing Plant, and further opportunity was given to the supplier to replace three components which do not correspond to the machineries as specified by them at the first stage tender. It is further stated that the matter would be sent to the Syndicate again in case of disagreement to the proposal. It may be mentioned here that the Central Purchase Committee of B.S.M.M.U having full lawful authority to accept or refuse to accept the Washing Plant gave decision in the matter. The Central Purchase Committee should not be compelled by any other authority without legal back up. There is nothing to show that the matter was taken to the Syndicate Meeting in an usual official process. Rather when the matter was pending before the Amicable Settlement Committee, it was taken up by the Syndicate by inserting a supplementary agenda in the Meeting. Such an extraneous decision should not be imposed on the assigned Purchase Committee, which is legally responsible to accept or refuse to accept the supplied goods of the contract on valid ground.

40. Even if it is conceded that the B.S.M.M.U. authority committed any wrongful act or omission in awarding the supply work in spite of violation of the terms of first stage tender specification by the claimant-tenderer and illegalities in accepting the 2nd stage tender by alteration, the supplier ought to have sold the supplied Washing Plant first when it was decided unacceptable and he ought to have set a claim for the remaining loss, adjusting the sale proceeds. The supplier-Company ought to have taken reasonable steps to mitigate the loss consequent upon purchaser's wrong even if any, and then only ask for the remaining loss and damages.

But in the instant case, no reasonable step was taken to mitigate the loss. If any such damage or compensation, after adjustment of the sale proceeds of Washing Plant, is necessary to be paid to the supplier, it should fall upon the personal liability of those persons, who had issued notification of award (work order) by accepting the 2nd stage tender violating the rules and against the interest of national public institution like the B.S.M.M.U. Neither the B.S.M.M.U. can be compelled to accept the Washing Plant as supplied by the ClaimantCompany nor any price of the plant or compensation for any part thereof can be allowed to spend from

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the Public Fund. It is against the Public Policy meaning thereby that Public Fund cannot be misused by granting such Award. As such, the Award is not legally sustainable.

41. Moreover, it is evident that the Maisha Corporation (Pvt) Ltd. submitted an application before the Tribunal to pass an award for payment contract of price, interest thereon and other monetary compensations on several heads. Neither there was any scope to enforce a decision of the Syndicate by the Tribunal nor any such prayer was made by the first party seeking arbitral award.

Evidently the award was passed by the Tribunal to enforce the decision of the Syndicate in the line of amicable settlement proposed by the supplier like a decree of suit for specific performance of Contract.

In doing so, the Tribunal appears to have exceeded limit of its lawful authority in passing the award and as such, the Tribunal appears to have violated the provision of section 43(I)(a)(IV) of the Arbitration Tribunal Act. 2001, which is obviously, a cogent ground for setting aside Arbitral Award.

42. It appears from the impugned judgment that the Additional District Judge also invoked section 43(I)(a)(b)(ll) of the Arbitration Act, 2001 in setting aside the Award as there is a legal bar under section 21 (a) of the Specific Relief Act to enforce the contract, for non-performance of which, money is an adequate relief. However, neither it was suit for Specific Performance of Contract nor the Tribunal had any lawful authority to pass an Award for implementing a decision of Syndicate with such directions assuming power of the Civil Court.

43. Having due regard to the aforesaid facts and circumstances and findings, we hold the view that there is no cogent ground for setting aside the impugned judgment and order passed by the Court below in setting aside the Award.

44.

So the First Misc. Appeal fails.

45. In the result, the First Misc. Appeal is dismissed. The impugned judgment and order is maintained. We prefer it make any order as to costs.

Send down the L.C.Rs. along with a copy of the judgment to the Court below immediately.

Ed.

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Bela Rani Dasya Vs. Sree Modhusudan Mondol and others (Md. Nuruzzaman, J.)

HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION) Mr. Md. Nuruzzaman, J.

}

Judgment 24.11.2011

}

Bela Rani Dasya ....Writ Petitioner VS Sree Modhusudan Mondol and others ....Respondents

Evidence Act (I of 1872) Sections 45 and 73 The court is not bound to refer a document to the hand writing expert when the court itself found the dissimilarity in LTI. The appellate court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI when the defendants admittedly failed to produce the original deed in question. ...(7) Code of Civil Procedure (v of 1908) Order XLI , Rule 31.

Mere referring some statements made in the plaint which obviously neither admitted nor evidence on record and thus, cannot be a ground to reverse the evidence given on oath and hence the judgment of the appellate court is not a . ..... (8) proper judgment of reversal.

Mr. Bivash Chandra Biswas, with Mr.Hossain Md.Borhan, Advocates …For the petitioner No one…… .... For the opposite parties.

Judgment Mr. Md. Nuruzzaman The instant Rule has been obtained by the petitioner calling upon the opposite parties to show cause as to why the impugned judgment and decree complained of in the petition moved in Court should not be set aside.

2.

The material facts relevant for disposal of the Rule, in short, is that the petitioner as plaintiff instituted Title Suit No. 242/1978 for declaration that the Deed No. 10292 dated 15.11.1975 shown to have been executed by the plaintiff in favour of the defendant Nos. 1-7 is a forged, fraudulent, without

*Civil Revision No. 5135/1991 (Civil Revision No. 84/1984).

312

consideration and not binding upon the plaintiff. By amendment order dated 24.3.1981 the plaintiff also prayed for declaration and confirmation of possession, if it is proved that the plaintiff is not in possession then prayed for khas possession in the suit land. The plaint case, is that, the suit land originally belonged to Ballok Mondal. After the death of Ballok Mondal his 8 sons inherited the same. The youngest son Arjun died during the period of liberation while he was going to India. The plaintiff is the wife of Arjun and after his death she became the heir of late Arjun. The rest 7 sons of Ballok Mondal are the defendant Nos. 1-7. The plaintiff has ejmali possession in the suit land with the defendants. In the month of December, 1977 the plaintiff came to learn that the defendant Nos. 1-7 has created a deed of Kabala for the suit land. The plaintiff having been heard about the so called deed she searched for and could know that the defendants had made a deed of Kabala in Shoilkupa Sub-Registry Office, on 15th November, 1975. The plaintiff never executed such deed of Kabala in favour of anybody. The plaintiff neither took Tk. 4,000/- from anybody nor executed any deed of Kabala. The plaintiff claims that the Kabala shown to have been executed by her obviously forged, fraudulent and without consideration. The plaintiff’s further believes that the defendants’ had created the deed of Kabala only to deprive the plaintiff from the suit land with malafide intention by making false personification, hence, the plaintiff compelled to file the instant suit.

3.

All the defendants contested the suit by filing written statements denying the material allegations made in the plaint, stating, inter alia, that the suit is not maintainable in it’s present form. The suit is bad for suppression of facts. It is admitted that the plaintiff’s husband Arjurn is the youngest son of Ballok Mondal and the suit land originally belonged to Ballok Mondal. Arjun died in the year 1979, one year before the death of his father Ballok Mondal. It is not the fact that Arjun died during liberation period while he was going to India. The wife of Arjun had been living with the defendants after the death of her husband. One day Suren and Judisthir, the brothers of the plaintiff came to the plaintiff and told that the plaintiff would transfer her share of property by

313

Bela Rani Dasya Vs. Sree Modhusudan Mondol and others (Md. Nuruzzaman, J.)

Kabala. The defendants being afraid by the proposal of the transferring of the property by the plaintiff, the defendants agreed to purchase the same and consideration money was fixed Tk. 4,000/- only. The plaintiff took the consideration money from the father’s of the defendants and went to the Shoilkupa S/R Office and executed the deed of Kabala in favour of the defendants and since then the defendants have been possessing the suit property. The defendants’ father handed over the original deed to the Tahsilder and as such, the original deed in question was not in their possession. The Tahsilder did not return the original deed. The plaintiffs’ suit is nothing but harassing one and the same is liable to be dismissed with cost.

4.

At the trial the plaintiff’s side adduced 2 (two) P. Ws. And the defendants adduced 2 (two) D. Ws. After conclusion of the trial the trial Court considering the materials available on record decreed the suit.

5.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court the defendants preferred appeal before the learned District Judge, Magura. Eventually the learned District Judge transferred the Title Appeal to the Court of the learned Subordinate Judge, Magura for hearing and disposal. On appeal the learned Subordinate Judge, Magura considering the facts and circumstances and evidence on record allowed the appeal reversing the judgment and decree of the trial Court on the grounds that the plaintiff is not in possession of the suit land and the learned Munsif was wrong in deciding that it was the duty of the defendants to pray for sending the left thumb-impression for examination of the expert opinion. So, according to the appellate Court it was a wrong finding, hence, the trial Court apparently did mistake in both in facts and law. On the above two grounds the appellate Court allowed the appeal by reversing the judgment and decree of the trial Court and dismissed the suit.

6.

The points for determination is whether the appellate Court in reversing the judgment of the trial Court committed any error of law resulted in

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an error in the decision occasioning failure of justice.

7.

Mr. Bivash Chandra Biswas, with Mr. Hossain Md. Borhan, the learned Advocates appearing for the petitioner submits that the trial Court after appreciating the evidence on record opined that the plaintiff on 17.01.1979 on an application sought for a direction upon the defendants to file the original deed being deed No. 10292 dated 15.11.1975 in the Court which was allowed. The defendants time and again took the plea to submit the original documents but could not file the same and later, on an application stated that the original deed was given to the Tahsilder of Isakhada for mutation and that was not returned to them by the Tahsilder. Then the court below called for a report asking the Tahsilder of Isakhada to submit a report whether the alleged deed was submitted by the defendants in the office of the Tahsidler is original or not. The Tahsilder of Isakhada submitted his report vide Memo No. 90 dated 9.8.1979, Ext. 3, to the Court stating that the alleged original deed of Kabala had never been filed in his office for mutation. On the facts and circumstances of the case on the applications of the plaintiff the trial Court called the LTI Register from the S/R office of Shoilkupa. On receipt of the LTI Register the learned Judge himself compared the LTI of LTI Register in serial No. 14297 with the LTI of Bela Rani which has been given in the deposition-sheet.

On comparison of the two L.T.Is., the trial Court noticed that there is a clear distinction in between the LTI put in the Register being Serial No. 14297 and the LTI of deposition-sheet. Then the trial court opined that the LTI of Bela Rani in the deposition-sheet and the LTI in the LIT Register had no similarity. He further pointed out that the defendants’ side on the conclusion and for decision of the trial Court might send it for the expert opinion as burden of prove lies with them under section 103 of the Evidence Act. However, the defendants did not take any steps for expert opinion. He further opined that P.W. 2 Monoranjan in his deposition stated that he read

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Bela Rani Dasya Vs. Sree Modhusudan Mondol and others (Md. Nuruzzaman, J.)

over the disputed deed of Kabala to Bela Rani.

However, at the time of cross examination the deed Ext. C was handed over to him to read but he could not read the same. Further-more, in crossexamination he admitted that he cannot say the name of the scribe who took the LTI of Bela Rani.

But from the exhibit it is seen that it was written

by Monoranjan. Therefore, the trial Court on the above findings came to a clear decision that the deed in question is a forged one, and as such, decreed the suit. We find from the judgment and decree dated 28.2.1984 that appellate court without adverting the above evidence on record only basing mere surmise and conjecture reversed the trial Court’s findings though according to me the trial Court rightly decided one point, i.e., taking the expert opinion lies upon the defendants. More-so, the Court was not bound to refer a document to the hand-writing expert when the Court itself noted the dissimilarity in LTI as defendant failed to produce the original document in court. So, I am of the view that the appellate Court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI wherein the defendants admittedly failed to produce the original deed in question.

8.

Besides these, it appears to me that the judgment of the appellate Court is also tainted as the evidence and findings of the Trial Court as available on record were not adverted by the appellate court but set aside the same merely on a technical grounds that the plaintiff has failed to take the expert opinion. The learned Advocate appearing for the petitioner referring the ground No. 1 of the revisional application and the deposition of P.W.1 submits that P.W.1 categorically stated that she is in possession jointly with other co-sharers but the appellate Court without considering the above deposition of P.W. 1 quoting some statements from the plaint opined that the plaintiff is not in possession of the suit land. P.W.1 on oath stated that she is in possession and defence upon cross-examination did not found

314

anything in their favour. Mere referring some statements in the plaint which obviously neither admitted nor evidence on record and thus, cannot to be a ground to reverse the evidence given on oath. Therefore, I am of the view that the appellate Court also in that point of view committed mistake. Therefore the judgment and decree passed by the appellate Court by reversing the trial court Judgment and decree is not a proper Judgment of reversal.

9.

On the facts and circumstances of the case, it appears that the plaintiff is a widow, she only enjoy the suit land in her lifetime after her demise, the suit land if not disposed of otherwise the same must be devolved upon the heirs of the late Arjun.

So there is no cogent ground to disbelieve the plaint case that the defendant only to depriving the plaintiff’s lifetime interest has created a forged document.

10. In the facts and circumstances of the case my firm view is that the court of appeal below without appreciating the evidence on record mere surmises and conjectures set aside the trial court’s judgment which resulted in an error in the decision occasioning failure of justice.

11. For the reasons and discussions made herein above, I am of the view that the judgment and decree passed by the appellate Court is tainted from legal infirmity, therefore, calls for interference by this Court for ends of justice.

12.

Thus, the Rule having merit, it succeeds.

13. In the result, the Rule is made absolute without any order as to cost.

14. The judgment and decree passed by the appellate Court in title appeal No. 104 of 1981 is hereby set aside and those Judgment and decree dated 26.05.1981 of the trial Court is hereby affirmed. The office is directed to send down the L.C Record and Communicate this judgment at once.

Ed.

265

Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

HIGH COURT DIVISION (CRIMINAL MISCELLANEOUS JURISDICTION) Mr. M. Enayetur Rahim J Mr. Sheikh Md. Zakir Hossain J Judgment 22nd January, 2012

} }

Mahmudur Rahman Nazlu . . . .Petitioner VS The State and another ...Opposite Party

Code of Criminal Procedure (V of 1898) Section 561A It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is impermissible. ... (10) Code of Criminal Procedure (V of 1898) Sections 7 (4) and 17 A Negotiable Instruments Act (XXVI of 1881) Sections 138 and 141 (c).

In section 141(c) of the Negotiable Instruments Act, 1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Session. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the Code. As such the submissions of the learned Advocate cannot be accepted that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case. Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code. .... (13 and 14) Code of Criminal Procedure (V of 1898) Section 408 Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge,

Criminal Miscellaneous Case No.18937 of 2011.

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when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure. May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended there is no scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object. ... (15, 16 and 17) Code of Criminal Procedure (V of 1898) Section 561A An application for restoration of the Miscellaneous Case filed under section 561A Cr.P.C. which was rejected as none was turned up to press the application but the High Court Division was not inclined to allow the accused petitioner to drive to a fruitless litigation. ...(1 & 19) Sonatoon Nessa -Vs- Haipattullah Sarker, 41 DLR (AD); Abdul Kashem and others Vs. The State, 43 DLR (AD) 1991.

Mr. Abu Hena Razzaki, Advocate ---For the Petitioner Mr. Gazi Md. Mamunur Rashid, A.A.G --- For the State.

Judgment M. Enayetur Rahim, J. This is an application for restoration of the above mentioned Miscellaneous Case under Section 561A of the Code of Criminal Procedure which was rejected by this Bench as none was turned up on repeated call to press the application on 11.12.2011.

2.

The accused petitioner filed an application under Section 561A of the Code of Criminal Procedure to quash the proceeding of Metro Sessions Case No.7270 of 2009 under Section 138 of the Negotiable Instruments Act, 1881 pending in the Court of Joint Metropolitan Session Judge, 5th Court, Dhaka. The accused petitioner filed the said application in another

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

Bench and after hearing the same, was fixed on 12.07.2011 for order; in the meantime the constitution of that Bench had changed and the record of the Case was sent to the concerned section of this court and the application has been numbered as Criminal Miscellaneous Case No.18937 of 2001, though no Rule was issued. Eventually, the matter was sent to this Bench by the Hon’ble Chief Justice and ultimately the application was rejected for default on 11.12.2011.

3.

Mr. Abu Hena Razzaki, the learned Advocate for the petitioner placing the application for restoration, submits that, the application under Section 561A of the Code of Criminal Procedure was initially filed in another Bench and that was heard by that Bench on 21.06.2011 and fixed 12.07.2011 for order. But in the meantime the constitution of that Bench has been changed and no order was passed on 12.07.2011. On 03.01.2012 the learned Advocate of the petitioner when sent his Clark to the record section to see the position of the application then he came to learn that on 11.12.2011 the application was rejected for default.

Because of such order of default a gap has been created between the relation of the client and the lawyer and if the case is not restored to its original filed and number the petitioner will be prejudiced seriously.

4.

In the Case of Sonatoon Nessa -Vs- Haipattullah Sarker, reported in 41 DLR(AD), Page-105 our Appellate Division discouraged the restoration of a case when no useful purpose will be served in allowing the such restoration and a litigant instead being benefited in any manner will be driven to a fruitless litigation if restoration is allowed.

5.

Let us now decide the fate of the present application for restoration keeping the above proposition of law in our mind.

6.

We have gone through the application for restoration and as well as the application under Section 561A of the Code of Criminal Procedure.

7.

In course of the submission the learned Advocate for the petitioner admitted that the petitioner filed the application under Section 561A of the Code of Criminal Procedure before this Court after completion of the examination of the witnesses and 18.04.2011 was fixed for argument. It shows that the petitioner has not come before this Court with clean hand.

8.

In the application for restoration no explanation has been furnished by the petitioner or his learned

266

Advocate what step was taken from 12.07.2011 to 03.01.2012.

9.

In the order dated 11.12.2011, rejecting the application for default, it has been categorically mentioned that on 08.12.2011 the case appeared in the daily cause list with the name of the learned Advocate for the petitioner, but no one appeared to press the application when it was taken up for hearing and on that particular day the Court Suo-moto adjourned the hearing and on the following day when the matter was again taken up for hearing no one turned up to press the application and ultimately the application was rejected for default. With regard to the above observation of the Court the learned Advocate of the petitioner in his application for restoration has not furnished any explanation for his fault.

10. It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is not permissible.

11. The learned Advocate for the petitioner tried to impress us agitating the ground that in view of the provision of Section 141(C) of the Negotiable Instruments Act,1881 it is mandatory that the trial of the case, must be tried by the Court of Sessions not inferior to that of a Sessions Court and the Joint Sessions Judge being a subordinate to the Court of Sessions Judge has no jurisdiction to try the Case and as such the trial of the instant case by the Metropolitan Joint Sessions Judge 5th Court, Dhaka is nothing but an abuse of the process of the Court which is liable to be quashed. It was also the submission of the learned Advocate that if the instant Case is tried by Metropolitan Joint Sessions Judge and if any of the litigant of the case needs to move in the form of appeal against the said Judgment then he has to move before the Sessions Judge, which is a trial Court according to section 141(c) of the Negotiable Instruments Act and thus, trial Court itself can not be the appellate Court.

Section 9 of the Code of Criminal Procedure runs as follows: Court of Session.- (1) The Government shall establish a Court of Sessions for every sessions division and appoint a Judge of such Court; and the Court of sessions for a Metropolitan Area shall be called the metropolitan Court of Session.

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(2) The Government may, by general or special Order in the official Gazette, direct at what place or places the Court of Sessions shall hold its sitting; but, until such order is made, the Courts of Sessions shall hold their sittings as thereof.

(3) The government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise Jurisdiction in one or more such Courts. [(3A) The members of the Bangladesh Judicial Service shall be appointed as Sessions Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with the rules framed by the president under the provision to Article 133 of the Constitution to exercise Jurisdiction in one or more of such areas.]

12. Above provision of law clearly speaks that Government may also appoint Additional Sessions Judge and Assistant Sessions Judge (now Joint Sessions Judge) to exercise Jurisdiction in one or more such Courts.

13. We have gone through the relevant provision of law i.e. Section 141(C) of the Negotiable Instruments Act, Sections 7 and 9 of the Code of Criminal Procedure. In section 141(c) of the Negotiable Instruments Act,1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Sessions. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the code. As such, we are unable to accept the submissions of the learned Advocate that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case.

14. Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code.

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15. Further, Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge, when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous.

16. It is true that for committing offence under Section 138 of the Negotiable Instruments Act,1881 highest sentence is for a term of one year or with fine or with both. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure.

17. May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended we have no authority or scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object, in exercising the power under Section 561A of the Code of Criminal Procedure.

18. The Case of Abdul Kashem and others Vs. The State, reported in 43 DLR(AD) 1991 as cited by the learned Advocate for the petitioner is not applicable in this Case. In that Case the appellate, revisional, reference and review power of the learned Additional Sessions Judge and Assistant Sessions Judge has been decided.

Having, discussed as above we are not inclined to allow the accused petitioner to drive to a fruitless litigation restoring the instant case to its file and number.

Accordingly, the application is rejected.

Communicate the order at once.

Ed.

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mrs. Farah Mahbub J. Mr. Farid Ahamed J. Judgment 29.05.2011

BGP Inc., China } National Petroleum Corporation, ..... Petitioner.

VS } Bangladesh and others ......Respondents

Constitution of Bangladesh, 1972 Article 102 Public Procurement Act (xxiv of 2006) Section 2(23) and 29 Public Procurement Act 2008 Rules 2 (41), 56 and 117.

The petitioner has challenged the Memo dated 10.20.2011 purporting amongst others that the petition is non-responsive against “Invitation for Engagement of Seismic contractor”. The fact remains that Petrobangla considered the EOI of BGP (Bangladesh) International as appropriate, and short listed the same as contractor, whereas the Review Panel-1 declared the said contractor as non responsive on the count that BGP Inc., CNPC being a separate entity cannot file RFP. The said decision has been given without giving opportunity to BGP (Bangladesh) International to represent their part of the case. No doubt, there is serious anomally over the ambiguity of the petitioner-company who filed RFP, which is still lying pending before the Evaluation Committee for consideration and above all as per ITC clause 5.1 filing RFP is limited to short list contractors only. As such, since BGP (Bangladesh) International has been declared nonresponsive the said short-listed contractor is the appropriate aggrieved person to maintain this writ petition, not BGP Inc., CNPC. The respondent no.8 being a “sub-contractor” it’s right and interest lies with the short-listed contactor CGG veritas, France who does not appear to have authorized the said respondent to file complaint to the concern authority against BGP Inc., CNPC in order to oust BGP (Bangladesh) International without making it a party. Hence, has no locus standi to maintain the complaint before the Review Panel-1, respondent No.3. In the present case, the Procuring Entity short listed 8 (eight) contractors and the RFP submitted by them are still lying pending for consideration

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before the Evaluation Committee, either to be declared responsive or non-responsive. Moreover, the allegation was against BGP (Bangladesh) International whose right to be declared responsive or non-responsive has been adjudicated and disposed of by the respondent no. 3 without making it a party and without issuing notice providing opportunity to defend it’s part of the case by adducing documents, which is a flagrant violation of the principle of natural justice. The impugned order dated 10.02.2011 passed by the respondent no.3 is declared to have been passed without lawful authority and hence, of no legal effect. . . . . (25 and 27 to 30) Mr. Rokanuddin Mahmud, Senior Advocate with Mr. Mustafizur Rahman Khan, Advocate ..... For the writ Petitioner.

Mr. Amir-Ul Islam, Senior Advoate with Mr. Nurul Amin, Advocate with Mr. Sheikh Rafiqul Islam, Advocate ....For the Respondent No. 8.

Mr. Mohammad Ashraf Uddin Bhuiyan ........ For the respondent No. 6.

Judgment Farah Mahbub, J In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the decision of respondent no.3, communicated under memo no. IMED/CPIU/RP01/90-2011/151 dated 10.02.2011 (Annexure-A), purporting that the petitioner, amongst others, is nonresponsive against “Invitation for Engagement of Seismic Contractor” for conduct of 3100 L Km of 2D seismic survey in Block nos.2,3,4,6,8 and 11 under proposal no.31.02.204/160 issued on 11.04.2010, should not be declared to have been passed without lawful authority and hence, of no legal effect.

2.

At the time of issuance of the Rule the operation of the impugned decision dated 10.02.2011 has been stayed.

3.

Facts, in brief, are that the petitioner, a globally reputed geophysical and seismic survey company incorporated under the laws of the People’s Republic of China, having its Head Office in China and Branch

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Office in Bangladesh, impugned the decision of the respondent no.3 communicated under memo no. IMED /CPTU/RP-01/90-2011/151 dated 10.02.2011 (Annexure-A) contending, inter alia, that it had undertaken seismic survey projects in various parts of the world, including Bangladesh, for different public and private sector clients. The petitioner company established a branch office in Dhaka upon obtaining permission from the Board of Investment vide memo dated 25.11.2009 (Annexure-B). Vide notification dated 17.09.2009, Petrobangla, respondent no.5 requested to offer Expressions of Interest (in short, EOI) for short listing seismic contractor to carry out 2D Land Seismic Contract-3100 Lkm Seismic Survey including Data Processing and Interpretation under Fast Track Programme. In response to the said invitation the petitioner submitted an EOI on 28.10.2009 containing necessary informations and particulars about the petitioner-company, signed by the General Manager, BGP (Bangladesh) International. It has also been contended that EOI, in fact, was submitted by the petitioner-Company, “BGP Inc., China National Petroleum Corporation (in short, CNPC)” as is apparent from the contents of the EOI and the materials enclosed therein including the performance certificates issued against past contracts(Annexure-D). Following the assessment of the respective EOIs submitted by the interested parties, the petitioner along with 7 (seven) other contractors were short listed as contractors for the proposed survey

by Petrobangla, placing the petitioner company at serial no. 6 under the name “BGP (Bangladesh) International”. Accordingly, letter of invitation dated 11.04.2010 was issued enclosing therewith a “Request for Proposal (in short, RFP) inviting the petitioner company to submit its proposal for the respective project (Annexure-E). Since “BGP (Bangladesh) International” was not a separate legal entity, but part of the internal organizational structure of the petitionerCompany the petitioner, before submitting its technical proposal(RFP) and before the respondent no.8 filed objection, under it’s cover letter dated 10.06.2010 along with a letter dated 24.05.2010 and a statement dated 31.05.2010, clarified the position that the name of the short listed bidding entity was, in fact, BGP Inc., China National Petroleum Corporation (Annexure-F,F1, and F-2 respectively). When RFPs, submitted by the petitioner-company and others, were still under the process of consideration the petitioner-company came to receive information of the impugned decision purporting that it had been declared non-responsive by

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the respondent no.3 vide it’s decision dated 10.02.2011(Annexure-A) without making either BGP (Bangladesh) International or BGP Inc., China National Petroleum Corporation a party or giving personal hearing, upon a review petition filed by the respondent no.8 purporting to be the sub-contractor of one of the other short listed contractors, CGG Veritas, France without due authorization of the PrincipalContractor (Annexure-G,G-1 and G-2 respectively).

Being aggrieved by and dissatisfied with the petitioner company had preferred the instant application and obtained the present Rule.

4.

Respondent No.8 entered appearance by filling affidavit-in-opposition contending, inter alia, that Petrobangla vide notification dated 17.09.2009 invited for EOI from the eligible contractors in order to get seismic contract for carrying out 2-D land seismic survey involving about 3100 Lkm data acquisition including Data Processing and Interpretation and related services. CGG Veritas, France on 28.10.2009 submitted EOI along with other participants including BGP (Bangladesh) International (Annexure-I-A and IB). After scrutiny, on 11.04.2010 Petrobangla made a short list as per the Rules and sent a Letter of Invitation to 8(eight) short listed companies. Accordingly, Request For Proposal (shortly, “RFP”) was issued to the short listed contractors including BGP (Bangladesh) International. The petitioner-company namely BGP Inc., CNPC was not on that list. CGG Veritas, France mentioning respondent no.8 as its local agent and sub-contractor submitted RFP to Petrobangla on 14.06.2010 (Annexure-I-C, I-D and I-E respectively).

BGP (Bangladesh) International submitted EOI in its own name and was short listed to participate in the bid, but RFP was submitted on 14.06.2010 in the name of BGP Inc., China National Petroleum Corporation, No.189 Fanyang Xi Road, Hebei Province, China instead of BGP (Bangladesh) International in violation of the terms and conditions of RFP Clause-5.1.

Respondent no.8, the local agent of CGG Veritas, France on 26.12.2010 submitted an application to the Director (Planning), Petrobangla complaining the irregularity that a new Company BGP Inc., CNPC though not short listed, was incorporated in the evaluation list in violation of section 117 of the Public Procurement Rules, 2008 (in short “PPR, 2008”) Annexure-I-F). Finding no response respondent no.8 on 03.01.2010 filed another representation to the Head of Procuring Entity and the Managing Director of BAPEX about the aforementioned complaint who also

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

failed to take necessary steps in the matter (AnnexureG). Respondent no.8 on 11.01.2011 raised the said issue to the Secretary, Energy, Mineral Resources Division, Ministry of Power, Energy and Mineral Resources, but without any effective result (AnnexureI-H). Having exhausted all the procedural steps as per rule 57 of PPR, 2008 and having not received any response respondent no.8 on 19.01.2011 filed a review petition to the Chairman, Review Panel-1, CPTU, IMED Division, Ministry of Planning, respondent no.

3. The Review Panel after hearing both the parties (respondent no.8 and Petrobangla) vide memo no.

IMED/CPTU/RP-01/90-2011/151 dated 10.02.2011 allowed the same and declared BGP (Bangladesh) International non-responsive according to PPR, 2008.

Being aggrieved the petitioner had filed the aforesaid writ petition even though it neither participated in the tender process nor was in the short list and accordingly, the present writ petition is not maintainable. It has further been contended that BGP (Bangladesh) International at no stage of the tender process claimed that they had Branch Office in Dhaka, Bangladesh or was the agent of BGP Inc., China National Petroleum Corporation. Also, the organogram so had been presented by the writ petitioner goes to show that there is no link between BGP (Bangladesh) International and BGP Inc., CNPC. As such, the petitioner-company was not entitled to be informed or communicated about the decision whatsoever of the respondent no. It has further been stated that on 25.11.2009 BGP (Bangladesh) International had established a Branch office at Dhaka of BGP Inc., CNPC on 25.11.2009 which is much later than the notification dated 17.09.2009 published by Petrobangla and also after the closing date of EOI on 28.10.2009. As such, opening of a new branch cannot go to have retrospective effect. It has also been contended that BGP Inc., CNPC at no stage submitted any EOI in response to the notification dated 17.09.2009. The EOI was, in fact, submitted by the BGP (Bangladesh) International without any signature and address stating, inter alia, that it was submitted by BGP (Pakistan) International and that “BGP(Pakistan) International was responsible to receive and prepare the tender/bid package and make necessary arrangement to carry out the work”, which goes to prove that the BGP (Pakistan) International was separate entity as well as EOI being unsigned proved itself to be a fraudulent attempt with a view to sabotage or frustrate the project so had been undertaken by the respondent-government towards resolving the gas problem in the country. From Annexure-E it is clear that BGP (Bangladesh)

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International along with 7(seven) other companies were short listed, not the petitioner-company. Hence, question of submitting RFP by the petitioner does not arise at all. It has also been stated that letters dated 10.06.2010, 24,05.2010 and 31.05.2010 (Annexure-F, F-1 and F-2 respectively) submitted by the petitionercompany who appeared out of no where after one BGP (Bangladesh) International was short listed is an attempt to take over the opportunity given to BGP (Bangladesh) International, which is strictly prohibited under PPR Rules,2008 and is also in violation of the Letter of Invitation dated 11.04.2010. It has further been contended that the petitioner was not notified by serving copy of the review petition simply because they were not party to the dispute raised by the respondent no.8 before the respondent no. 3. It has also been stated that BGP (Bangladesh) International submitted its EOI under the name and style “BGP (Bangladesh) International”, Gulshan Dhaka but RFP was submitted by BGP Inc. CNPC no.189 Fanyang Xi Road, Hebei Province, China. In the process of EOI no documents were filed in favour of the petitionercompany to show that both the companies were jointly ventured or linked with each other, rather from the documents of EOI (Annexure-D) it is quite clear that the BGP (Pakistan) International had authorized BGP (Bangladesh) International to submit EOI and said BGP (Pakistan) International was entitled to receive and prepare the tender/bid package and to make necessary arrangement to carry out the work. The respondent no. 3 considering the same also found that BGP (Bangladesh) International had failed to show any link with BGP Inc. CNPC. It has further been contended that respondent no.8 was the local agent of the short listed CGG Veritas as is evident from the papers submitted by the CGG Veritas to Petrobangla.

In the technical offer of the bid respondent no.8 had been mentioned as agent and sub-contractor. It’s qualifications and experience were also incorporated in the offer. In the financial offer form 5B1 represented the name and address of the agent, the respondent no.8 and the same had been accepted by Petrobangla, hence the steps so had been taken by respondent no.8 was on behalf of CGG Veritas.

5.

Mr. Rokanuddin Mahmud, the learned Senior Advocate appearing with Mr. Mustafizur Rahman Khan the learned Advocate for the petitioner drawing attention to the notification dated 17.09.2009 (Annexure-C) submits that Petrobangla in its international tender had invited Expression of Interest(EOI) from the eligible contractors to be short

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listed to get Seismic Contract for carrying out 2D land seismic survey, where within it’s four corners there was no stipulation to the effect that the intended contractor has to have a registered branch office in Bangladesh in order to offer EOI. He further goes to argue that in response to the offer made by the petitioner company on 17.09.2009 it had submitted EOI on 28.10.2009 along with the documents showing its experience /expertise in the respective field. In this connection drawing attention to Annexure-D to the writ petition he further contends that at the left hand corner of the cover page there is a logo of BGP Inc. CNPC. Moreso, the documents relating to experience and capacity of the Seismic data process Interpretation of service as enclosed with the EOI is of BGP Inc. CNPC. With the EOI the petitioner company also submitted the Articles of Association of BGP Inc. CNPC. Accordingly, he submits that since EOI is not confined within its cover page but represents the entire documents as submitted before the Petrobangla, as such it cannot be found that the BGP (Bangladesh) International and BGP Inc. CNPC are separate entity.

Moreover, he submits that the petitioner company has submitted EOI as the bidder and that accepting the alleged anomally, as apparent on the cover page of EOI, Petrobangla has short listed the petitioner company along with 7(seven) others vide Invitation no.

31.02.04/162 dated 11.04.2010 (Annexure-E) and directed the short listed contractors to submit RFP. He also submits that the petitioner company vide letter dated 24.05.2010 clarified the ambiguity regarding submission of EOI by BGP (Bangladesh) International along with other statements (Annexure-F). Subsequent thereto the petitioner under its cover letter dated 10.06.2010(Annexure-F) submitted RFP to the BAPEX. When the process of selecting a qualified contractor is pending before the Evaluation Committee of Petrobangla, the respondent no.8 having no locus standi within the meaning of section 2(23) of the Public Procurement Act,2006 (Act no.24 of 2006)( in short, the Act) and rule 2(41) of Public Procurement Rules,2008(in short, the Rules) made an application on 26.12.2010 before the Director(Planning) Petrobangla, to the Secretary, Energy Mineral Resources Division, Ministry of Power, Energy and Mineral Resources on 11.01.2011, and the Head of Procuring Entity and Managing Director of BAPEX on 03.01.2011 (Annexure-G, G-1 and 2 respectively). In this regard drawing attention to the words “Awf‡hvM Kwievi AwaKvi” as incorporated in section 29 of the Act no.24 of 2006 he submits that only the person as defined in section

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2(23) and/or rule 2(41) is eligible to file complaint against the “Procuring Entity” (H²uL¡l£) for having sustained loss because of its failure to discharge its duties towards the complainant or when there is a possibility of sustaining loss for such failure; whereas “H²uL¡l£”, the procuring entity means the entity having the administrative and financial authority to purchase “ −L¡e feÉ H²uL¡kÑ h¡ ®ph¡”. Respondent no.8 being evidently a “sub-contractor” of CGG Veritas, France has no locus standi to make complaint before the Petrobangla/Bapex or even before the Review Panel since it’s right and interest are confined only within the periphery of the contract so have been entered into with CGG. Veritas, France. In addition to that a complaint may be made under rule 56 of the Rules, 2008 for the reasons as stated therein. In this regard upon placing the complaint so had been made by the respondent no.8. Mr. Mahmud further submits that it is apparent therefrom that it does not qualify any of the circumstances as mentioned in rule 56 of the Rules, 2008. Moreover, rule 56 does not permit to make complaint against one of the short listed contractors whose REP is yet to be scrutinized and finally selected by the Evaluation Committee of Petrobangla.

6.

He also goes to argue that the jurisdiction to declare a short listed contractor responsive or nonresponsive squarely lies upon the Tender Evaluation Committee, the respondent no. 3 is authorized only to recommend (“p¤f¡¢lnH²−j”), not to declare short listed contractor non-responsive. As such, he submits that declaring BGP (Bangladesh) International, which is the integral part of the petitioner company, non-responsive vide impugned order is without jurisdiction. Lastly, he submits that the impugned order further fails for noncompliance of the principle of natural justice since neither BGP (Bangladesh) International nor BGP Inc. CNPC has been made party in the process nor they have been called upon to represent their part of the case. In this regard he submits that if the respective correspondences/documents as contained in AnnexureD as well as Annexure-F to the writ petition could have been produced before the Review Panel it might have taken a different view in view of the findings given by respondent no. 3 “no papers and relevant documents have been filed”. Accordingly, he submits that upon making the Rule absolute the impugned order dated 10.02.2011 (Annexure A to the writ petition) passed by the respondent no. 3 is liable to be declared to have made without lawful authority and is of no legal effect.

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

7.

Per contra, Mr. M. Amir-Ul Islam the learned Senior Advocate appearing with Mr. Md. Nurul Amin, the learned Advocate on behalf of the respondent no.8 assailing the locus standi of the petitioner-company submits that EOI has not been placed by the petitioner company, it was BGP (Bangladesh) International who submitted the same via BGP (Pakistan) International without endorsing the signature of the respective officer of the company as well as without mentioning the date and address of the respective company. As such, the EOI so submitted the respective company has no legal basis. Moreover, when the Letter of Invitation clearly states, “it is not permissible to transfer this invitation to any other contractor/firm”, also in ITC: 5.1 it has been provided that “this request for proposal document is limited to short listed Contractor (s) only”, as such, submitting REP by BGP Inc. CNPC on 14.06.2010 is the violation of the terms and conditions of REP clause 5.1. He further argues that the respondent no.8 is an agent of CGG Veritas, France as has been clearly stated in its Technical Proposal Submission Form dated 05.06.2010 submitted by the CGG Varitas, France in addition to his status as a subcontractor. In this regard he also submits that section 29 of the Act 24 of 2006 having used the words “−L¡e hÉ¢J²” he has locus standi to maintain a complaint against the petitioner-company who is nothing but an intruder to the tender process. Hence, submitting application on 26.12.2010(Annexure-G) by the respondent no.8, (the local agent of CGG veritas, France and a sub-contractor) to respondent no.6 bringing notice to the said irregularity being allegedly committed by an inter polar, the petitioner company, in violation of rule 117 of the Rules, 2008 is obviously maintainable. However, receiving no response the respondent no.8 made complaint to respondent no.7 as well as respondent no.2 to take necessary action. The authority paid no heed to the same. In this connection drawing attention to the EOI (Annexure-D) submitted

by BGP (Bangladesh) International he goes to argue that on a plain reading it is apparent that Petorbangla is rather solicitating participation of the said company in the tender process with a view to hand over the bid to the said company most unauthorisedly and thereby making an attempt to frustrate the principle of transparency, which is one of the objects for which Act, 24 of 2006 has been promulgated. Accordingly, he submits that the petitioner company having not participated in the bid (which has further been fortified from Annexure-B), establishing a branch office in Dhaka upon obtaining permission from the Board of

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Investment on 25.11.2009 (after the closing date of the bid dated 28.09.2010) and that being a separate entity from BGP (Bangladesh) International has no legal authority to submit REP. Considering the position of law and fact the Review Panel no.1, respondent no.3 has rightly declared BGP (Bangladesh) International as non-responsive. Accordingly, he submits that no interference is called for, rather declaring that the petitioner is not an aggrieved person within the meaning of Article 102 of the Constitution this Rule is liable to be discharged as being not maintainable with costs.

8.

Mr. Mohammad Ashraf Uddin Bhuiyan, the learned Advocate appearing on behalf of the respondent no.6, Petrobangla upon submitting a vokalatnama today adopted the submissions so has been advanced on behalf of the respondent no.8 and contended that till date no decision has been taken by the said respondent towards selecting the responsive contractor upon considering the REP as submitted by the short listed contractors.

9.

In order to carry out a 2-D Land Seismic Survey involving about 3100 L km Data Acquisition including Data Processing and Interpretation and related services under Fast Track Programme Bangladesh Oil, Gas, Mineral Corporation (Petrobangla) issued notice on 17.09.2009(Annexure-C) for Expression of Interest(EOI) to be submitted by the interested internationally reputed geophysical contractors having required qualifications, as stated therein, for short listing Seismic contractor/firm with supporting documents in support of the experience on or before 12:00 (BST) on 28.10.2009 in sealed envelop to the Director(Planning) Petrobangla, Petrocentre;3, Kawran Bazar, Dhaka, Commercial area, Dhaka.

10. In response, BGP (Bangladesh) International submitted its EOI allegedly without any date or signature stating, inter alia, that it was submitted by BGP (Pakistan) International and that “BGP (Pakistan) International” is responsive to receive and prepare tender bid package and make necessary arrangement to carry out the respective work. However, CGG Varitas, France also submitted EOI on 20.10.2009 (Annexure-IA). At this juncture, Mr. Mahmud, the learned Senior Advocate submits that respondent no.8 cannot make a complaint before the respondent no.3 since it did not submit any EOI nor in the EOI CGG Varitas, France has been identified as a joint venture company with respondent no.8. Rather, in the subsequent letter dated

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05.06.2010(Annexure-I-D) CGG Varitas, France appears to have submitted proposal in association with 3(three) sub-contractors and respondent no.8 is one of those 3 (three).

11. However, CGG Veritas, France while issuing 2nd letter on the same date i.e., 05.06.2010 has introduced respondent no.8 as a sub-contractor contending, inter alia-,“Arneeb Enterprise, PBL Tower (11th floor), 17 Kemal Atanturk Avenue, Gulshan-2, Dhaka-1212, Bangladesh-Sub-Contractor. Enem Express Ltd., Chartered Accountant Bhaban (2nd floor), 100 kazi Nazrul Islam Avenue, Kawran Bazar, Dhaka-1215, Bangladesh-Sub-Contractor. Yean Tun Chinese, Thai & Indian Restaurant, 50,Tejkunipara, Airport Road, Tejgaon, Dhaka-1215, Bangladesh-Sub-Contractor.”

12. While narrating profiles of the respective contractors it has further been stated, inter alia-,“SUBCONTRACTOR: ARNEEB EnterpriseArneeb Enterprise’s is a local company experience with more than 25 years in performing the job for supplying Casual Labour with foods subsidy & PPE with other various logistic supply to petrobangla and its various companies like BAPEX, BGFCL, SGFL and IOC’s like Shill, Occidental Unocal, Chevron and Tullow. Arneeb enterprise also works as agent and seismic crew supplier of CGG Veritas since 1980 for various Clients from IOC to NOC. Arneeb Enterprise amalgamated with N&N Corporation and UME under the same ownership is well known in hydrocarbon industry of Bangladesh for last nearly 30 years. Its access to highly skilled personnel translates into solutions that are both cost effective and of high quality thereby minimizing quality, which is the driving force behind its work.”

13. It, thus, reflects that earlier respondent no.8 also worked as an agent of CGG Varitas, France. However, for submitting EOI with regard to the international bid in question it has been identified as a “sub-contractor”.

At this stage, the learned Advocate for the respondent no. 8 goes to argue that the interest of sub-contractor comes into play with the submission of REP. Since in the present case proposal has been submitted by CGG Veritas, France, respondent No. 8 has every right to restrain a stranger who at no point of time (before declaring the short listed contractors) participated in the process of the tender in question.

14. 14. In order to understand the position of “subcontractor” first we require tounderstand the position of

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the “Contractor”. The word “¢WL¡c¡l”, the Contractor, has been defined in section 2(10) of the Act no.24 of 2006 as has been adopted in rule 2(18) of the Rules, 2008, which provides as under-“wVKv`viÓ A_© GB AvB‡bi Aaxb †Kvb Kvh© m¤úv`‡bi D‡Ï‡k¨ µqKvixi mwnZ Pzw³ m¤úv`bKvix e¨w³|Ó 15. In other words, a “contractor” means the person who has entered into a contract with the Procuring Entity to accomplish a work which has been undertaken under the Act no. 24 of 2006. The Act no.

24 of 2006, however, is silent about the definition of “sub-contractor”. The same has been defined in rule 2(56) of the Rules’ 2008, which is quoted hereinbelow-Òmn-wVKv`vi (sub-contractor)” ewj‡Z Pzw³e× Kv‡h©i †Kvb Ask m¤úv`‡bi Rb¨ wVKv`v‡ii mwnZ Pzw³e× †Kvb e¨w³ ev wewae× ms¯’v‡K eySvB‡e Ges wbe©vwPZ ¯’v‡b KvRI Dnvi AšÍf~©³ nB‡e|Ó (Emphasis given) In other words a “sub-contractor” comes into play when a contract has been concluded with the Contractor and the Procuring Entity. Subsequent thereto a separate contract is executed between the “Contractor” and the “Sub-contractor” in order to complete the contractual works. However, rule 53 provides for appointment of a “Sub-contractor”, which runs as follows:-“mn-wVKv`vi ev mn-civg©kK wb‡qvM|-(1) µqKvix, Av`k© `icÎ ev cÖ¯Íve `vwL‡ji Aby‡iva m¤^wjZ `wj‡j Dwj−wLZ h_vh_ †hvM¨Zv _vKvi mg_©‡b cÖ‡qvRbxq KvMRcÎ `vwLj Kiv mv‡c‡¶, †Kvb mieivnKvix, wVKv`vi ev civgk©K‡K mn-wVKv`vi ev mn-civgk©K wb‡qv‡Mi AbygwZ cÖ`vb Kwi‡Z cvwi‡e|(2) mncivgk©K wnmv‡e †Kvb cÖ¯Ív‡e Dwj−wLZ †Kvb cÖwZôvb (firm) GKvwaK cÖ¯Ív‡e AskMÖnY Kwi‡Z cvwi‡e, Z‡e D³ AskMÖnY ïay mncivgk©K wnmv‡eB Kwi‡Z nB‡e| (3) `ic‡Î mywbw`©ófv‡e Dwj−wLZ mn-wVKv`v‡ii †hvM¨Zv wVKv`v‡ii †hvM¨Zv g~j¨vq‡b ïay Zvnvi (mnwVKv`v‡ii) Rb¨ wba©vwiZ Kv‡Ri †¶‡Î we‡ePbv Kiv hvB‡Z cv‡i|(4) mn-wVKv`v‡ii mvaviY AwfÁZv Ges Avw_©K m¤ú` `icÎ`vZvi mvaviY AwfÁZv I Avw_©K m¤ú‡`i mwnZ †hvM Kiv hvB‡e bv| (5) †Kvb Av‡e`bKvix hw` e¨w³MZfv‡e, ev †hŠ_ D‡`¨‡Mi Askx`vi wnmv‡e †Kvb cÖ¯Íve `vwLj K‡i, Zvnv nB‡j GKB µq cwµqvq Ab¨ †Kvb Av‡e`bKvixi mn-civgk©K wnmv‡e wZwb MÖnY‡hvM¨ nB‡e bv| (6) mn-wVKv`vi ev mn-civgk©K wb‡qvM m‡Ë¡I, mswk−ó µq Pzw³i Aaxb cvjb‡hvM¨ `vq-`vwqZ¡ m¤úY©i“‡c mieivnKvix, wVKv`vi I civgk©‡Ki Dci b¨¯Í _vwK‡e Ges D³ `vq-`vwqZ¡ mn-wVKv`vi ev mn-civgk©‡Ki wbKU n¯ÍvšÍi Kiv hvB‡e bv, ev †Kvb Ae¯’v‡ZB Pzw³e× `vq-`vwqZ¡ mn-wVKv`vi ev mn-civgk©‡Ki wbKU Ac©‡Yi AbygwZ cÖ`vb Kiv hvB‡e bv| (emphasis given) (7) gyL¨ mieivnKvix ev wVKv`vi ev civgk©K Zvnvi mn-wVKv`vi evmncivgk©KM‡bi e¨e¯’vcbvi Rb¨ `vqx _vwK‡e, Ges mve-KȪv±mg~‡n e¨vc‡i µqKvixi ch©v‡jvPbv mvaviYZ gyL¨ mieivnKvix ev wVKv`vi ev

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civgk©K KZ©„K mve-KȪv±mg~n e¨e¯’vcbvMZ g~j¨v‡bi g‡a¨B mxwgZ _vwK‡e|Ó 16. In consideration of the said provisions of the Rules, 2008 we find no substance in the arguments so has been advanced by the learned Advocate for the respondent no. 8. Rather, we are of the view that the duties and responsibilities under the contract squarely lies upon the “Contractor” and under no circumstances can it be shifted to the “Sub-contractor”. Keeping that view in mind it was CGG Veritas, France, a short listed contractor, who was entitled to lodge complaint, if there be any, against BGP (Bangladesh) International.

The said finding of ours is further fortified from section 29 of the Act no.24 of 2006 which provides the right to lodge complaint; “29| Awf‡hvM Kivi AwaKvi|- (1) †Kvb e¨w³ GB AvB‡bi Aaxb µqKvixi Dci Awc©Z `vwqZ¡ cvj‡b e¨_©Zvi Rb¨ ¶wZMÖ¯Í nB‡j ev Zvnvi ¶wZMÖ¯Í nBevi m¤¢vebv _vwK‡j wZwb D³ µqKvixi wei“‡× aviv 30 G ewY©Z KZ©„c‡¶i wbKU Awf‡hvM `v‡qi Kwi‡Z cwi‡eb| (2) wbgœewY©Z †¶‡Î Dc-aviv (1) Gi Aaxb †Kvb Awf‡hvM `v‡qi Kiv hvB‡e bv h_v:- (K) cY¨, Kvh© ev †mev µq c×wZ wbe©vPb; (L) †Kvb Av‡e`bKvixi msw¶ß ZvwjKvfyw³i Av‡e`b cÖZ¨vL¨vb;(M) †h mKj †¶‡Î wbgœewY©Z wm×vš— M„nxZ nBqv‡Q-(A) cÖvK-†hvM¨Zvi Av‡e`b, `icÎ, †Kv‡Ukb ev cÖ¯—ve evwZj Kwievi wm×všÍ; ev(Av) miKvix µq msµvš— gwš¿mfv KwgwU KZ©„K Aby‡gv`‡bi cwi‡cªw¶‡Z Pzw³ m¤úv`‡bi wm×v¯—|” 17. Here, the important word is “hÉ¢J²”, the person who may file complaint. The definition of “person” or “hÉ¢J²” has been provided in section 2(23) of the Act no.

24 of 2006, as adopted in rule 2(41) of the Rules, 2008, which states as follows: “hÉ¢J² AbÑ H²u LjÑL¡−ä AwnNËq−Z BNËq£ hÉ¢J², hÉ¢J²hNÑ, hÉ¢J² j¡¢mL¡e¡ fË¢aÖW¡e, Awn£c¡l L¡lh¡l, ®L¡Çf¡e£, pwO h¡ pjh¡u p¢j¢a;” 18. In other words, persons are those who aspire to participate in the bidding process. Considering the said definition and the definitions of “Contractor”, and “Sub-contractor” the word “hÉ¢J²” as appeared in section 29 of the Act can only go to mean the bidder (the “contractor”), not the “sub-contractor” since his interest comes to play when a separate contract is entered into with the contractor and the sub-contractor.

That be the case, a complaint can only be maintained before the authority concern by the contractor, not the sub-contractor. As such, filing complaint by the respondent No. 8 is not maintainable in the eye of law.

19. The next issue which needs consideration is against whom the complaint may be made.

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20. Rule 56 of the Rules’ 2008 protects the right to file complaint against “−L¡e H²uL¡l£ hÉ¢J² ” on the ground as stated therein. Rule 56 is quoted hereinbelow. “56| Awf‡hvM Kivi AwaKvi|-wbgœewY©Z †¶‡Î ev cwiw¯’wZ‡Z †Kvb µqKvixi wei“‡× AvbyôvwbK Awf‡hvM `v‡qi Kiv hvB‡e, h_v t-(K) cÖvK-†hvM¨Zv wbav©i‡Yi †¶‡Î-(1)weÁvcb cÖKvwkZ nIqvi Zvwi‡L cÖvK-†hvM¨Zvi `wjj cÖ¯‘Z Kiv bv _vwK‡j ev m¤¢ve¨ Av‡e`bKvixi Aby‡iv‡a Dnv cÖvwßmva¨ bv Kiv †M‡j; ev (2) m¤¢ve¨ Av‡e`bKvixi ¯úóxKi‡Yi Pvwn`vi cwi‡cÖw¶‡Z h_vmg‡q Zrm¤ú‡K© e¨vL¨v cÖ`vb bv Kiv nB‡j ; ev (3) cÖvK-†hvM¨Zvi `wj‡jDwj−wLZwbY©vq‡KiAv‡jv‡Kg~j¨vqbKwgwU†hvM¨Zvg~j¨vqb Kwi‡Z e¨_© nB‡j ; ev (4)cÖvK-†hvM¨Zv wba©vi Ab¨vqfv‡e A¯^xK wZ Ávcb Kiv nBqv‡Q g‡g© aviYv Kwievi m½Z KviY _vwK‡j ; ev `~bx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡j|(L) Db¥y³, mxwgZ, mivmwi, `yB-ch©vq I †Kv‡Ukb c×wZi †¶‡Î-(1) cÖ‡hvR¨ ‡¶‡Î, wewa 90 AbymiYµ‡g weÁvcb cÖ`vb Kiv bv nBqv _vwK‡j ; ev cÖ‡hvR¨ ‡¶‡Î, weÁvcb cÖKvwkZ nIqvi Zvwi‡L `icÎ `wjj cÖ¯‘Z bv nBqv _vwK‡j evm¤¢ve¨`icÎ`vZvev †Kv‡Ukb`vZvi Aby‡iv‡a Dnv cÖvwßmva¨ Kiv bv †M‡j ; evm¤¢ve`icÎ`vZvi Aby‡iv‡a h_vmg‡q e¨vL¨v cÖ`vb bv Kiv nB‡j; ev ‡Kej GKwU e¯^ímsL¨K cÖ¯‘Kvix cÖwZôvb KZ…©K c~iY Kiv m¤¢e, GBiƒc KvwiMwi wewb‡`©k cª¯‘Z Kiv nB‡j ; ev cÖKvwkZ weÁvc‡bi kZ© †gvZv‡eK, cÖ‡hvR¨ †¶‡Î, cÖvK-`icÎ mf¨ Abyôvb Kwi‡Z e¨_© nB‡j ev D³ mfvi Rb¨ c~e© wbav©wiZ ZvwiL, ¯’vb I mgq cwiewZ©Z nB‡j h_vmg‡q Dnv m¤¢ve¨ `icÎ`vZvMY‡K AewnZ bv Kivi Kvi‡Y m¤¢ve¨ KwZcq `icÎ`vZv mfvq ‡hvM`vb Kwi‡Z m¶g bv nB `icÎ AvnŸv‡bi weÁvc‡Y cÖ`Ë wee„wZ †gvZv‡eK `icÎ D¤§y³ Kwi‡Z e¨_© nB‡j ev `icÎ Db¥y³Ki‡Yi mgq Am½Z AvPiY Kiv nB‡j ; wek„•Ljvfv‡e cwiPvjbvi d‡j GK ev GKvwaK `icÎ wbav©wiZ mg‡qi c~‡e©B Db¥y³µ‡g Dnvi †MvcbxqZv dvumKwiqv †`I cÖKvk¨ mfvq `icÎ Db¥y³Ki‡Y e¨_© nB‡j ; ev `icÎ `vwL‡ji Rb¨wbav©wiZ mg‡qi c~‡e© cÖvß mK Db¥y³KiY Kiv bv nB‡j ; ev g~j¨vqbKwgwU `icÎ `wj‡j Dwj−wLZ wbY©vqK‡Ki Av‡jv‡K`icÎ g~j¨vqb Kwi‡Ze¨_© nB (10) µqKvix KZ…K © K…ZKvh© `icÎ`vZvi mwnZ wb‡Mvwm‡qk‡bi D‡`¨M MÖnY Kiv nB‡j (11) `ybx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡ (12) ΓwUc~Y© ev Ab¨vh¨fv‡e Pzw³ m¤úv`b Kiv nBqv‡Q ewjqv Kwievi m½Z KviY _vwK‡j ; e(13) `yB ch©vqwewkó `icÎ c×wZ cÖ‡qv‡Mi †¶‡Î, cÖ_g ch©v‡`icÎ g~j¨vq‡bi mgq cÖ‡Z¨K e¨w³i wbKU nB‡Z e¨vL¨ MÖn‡Yi mgq †MvcbxqZv i¶vi kZ© jsNb Kiv nB‡j|(M) cÖ¯Íve `vwL‡ji Aby‡iva Ávc‡bi †¶‡Î-(1) KvwiMwi cÖ¯Ív‡ei Lvg Db¥y³Ki‡Yi ci µqKvix †MvcbxqZv i¶v Kwi‡Z e¨_© nB‡j; ev(2) KvwiMwi cÖ¯Íve Db¥y³Ki‡Yi mgq Avw_©K cÖ¯Íve †LvjvnB‡j ; (3) cÖ¯Íve `wj‡j Dwj−wLZ wbYv©q‡Ki wfwˇZ cÖ¯Íve g~j¨vqb Kw e¨_© nB‡j ; ev (4) g~j¨ †hLv‡b g~j¨vq‡bi GKwU wbqvgK (factor), †mB‡¶‡Î wb‡Mvwm‡qk‡bi mgq Av‡e`bKvix‡K ZrcÖ¯ÍvweZ wd‡mi nvi cwieZ©‡bi Rb¨ Pvc cÖ‡qvM Kiv nB‡j ; ev (5) `ybx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡j ; ev

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(6)Ab¨vh¨ I c¶cvwZZ¡c~Y©fv‡e Pzw³ m¤úv`b Kiv nBqv‡Q ewjqvaviYv Kwievi m½Z KviY _vwK‡j|Ó

unlawful, hence BGP (Bangladesh) International has been rightly declared as non-responsive.

21. Initially the complaint was filed by the respondent No. 8 before the respondent no.6, the Procuring Entity, against BGP Inc., CNPC who is claiming to be the integral part of BGP (Bangladesh) International pursuant to letter dated 24.05.2010(Annexure-F-1) contending, inter alia,-“We have been granted permission from the Board of investment (BOI) for opening a Branch Office in Bangladesh via BOI letter No BOI/R&1-1 (Com)/Branch/ 2935/09/2752 dated 25-11-2009 and 18 B permission from Bangladesh Bank via letter No. FEID/729/B960/2010-154 dated 25/01/2010 as BGP Inc. China National Petroleum Corporation BGP Inc. also registered with register of Joint Companies & Firms under No. F667 issue No. 34442-48 dated 2502-2010 and Tax Identification Certificate from the Deputy Commissioner of Taxes No 176-201-8105/Coy17 dated 20-05-2010. To comply with these permission BGP Inc. China National Petroleum Corporation has been working in Bangladesh as Branch Office at 69/1 New Circular Road, Malibagh , Dhaka. p-120 ”

24. As has already been noted above, a complaint cannot be made by a sub-contractor against a short listed contractor in view of rule 56 of the Rules, 2008.

However, in this regard Mr. Nurul Amin drawing attention to sub-rule 9 of rule 56 submits that alleging non-evaluation of RFP as per law on possible conspiracy the instant complaint has been lodged hence, it fulfils the criterias as have been set out in the said provision. Sub-rule 9 of rule 56 comes into play when the Evaluation Committee fails to evaluate “clfœ” as per “`icÎ `wj‡j D‡j−wLZ wbY©vq‡Ki Av‡jv‡K”. The said stage has not reached yet. The issue being agitated by respondent no.8 is presenting RFP by BGP Inc., CNPC for being a separate entity from BGP (Bangladesh) International. In view of the same the arguments so made by Mr. Amin is of no substance in the facts and circumstance of the case. The fact remains that Petrobangla considered the EOI of BGP (Bangladesh) International as appropriate, (AnnexureD) and short listed the same as contractor, whereas the Review Panel-1 declared the said contractor as non responsive on the count that BGP Inc., CNPC being a separate entity cannot file RFP. The said decision has been given without giving opportunity to BGP (Bangladesh) International to represent their part of the case.

22. However, on perusal of Annexure-D it appears that EOI has been filed by BGP (Pakistan) International on behalf of BGP (Bangladesh) International. Along with the EOI the said company also submitted the documents of experience, capacity as well as the Articles of Associations of BGP Inc., CNPC. 23. In this regard, it is the emphatic contention of the petitioner-company that though there is some unintentional anomally in the cover page of EOI but said EOI consists of the entire volume of documents wherefrom it is evident that BGP Inc., CNPC. is, in fact, making the proposal and that before filing RFP the petitioner-company has duly sent a letter of clarification. It is fact that accepting such anomally, as is apparent from the records, respondent no.6 vide letter dated 11.04.2010 short listed 8 (eight) contractors where CGG Veritas, France has been placed at serial no.4 and BGP (Bangladesh) International has been posted at serial no.6. Neither CGG Veritas, France nor respondent no.8 within the four corners of it’s complaint raised objection against such short listing.

The claim of the respondent no.8 squarely lies on the issue that since BGP (Bangladesh) International has been short listed as such RFP submitted by the petitioner-company on 10.06.2010(Annexure-F) is

25. The present writ petition has been filed by BGP Inc., CNPC Their claim is that they are the integral part of BGP (Bangladesh) International on the basis of certain documents, enclosed with the EOI and tried to clarify the ambiguity with regard to the name of the company since BGP (Bangladesh) International has been short listed 26. No doubt, there is serious anomally over the ambiguity of the petitioner-company who filed RFP, which is still lying pending before the Evaluation Committee for consideration and above all as per ITC clause 5.1 filing RFP is limited to short list contractors only. As such, since BGP (Bangladesh) International has been declared non-responsive the said short-listed contractor is the appropriate aggrieved person to maintain this writ petition, not BGP Inc., CNPC. 27. Be that as it may, the respondent no.8 being a “sub-contractor” it’s right and interest lies with the short-listed contactor CGG veritas, France who does

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not appear to have authorized the said respondent to file complaint to the concern authority against BGP Inc., CNPC in order to oust BGP (Bangladesh) International without making it a party. Hence, has no locus standi to maintain the complaint before the Review Panel-1, respondent No. 3.

28. The bid reaches its finality through stages; firstly, before the Procuring Entity, who selects the short listed contractors; then the RFP, submitted by those contractors, are evaluated by the Evaluation Committee “j§mÉ¡ue L¢j¢V” and then it is finally approved by the Approval Authority, “Ae¤−j¡ceL¡l£ LaѪfr” as defined in section 2(1) of the Act no.24 of 2006. In the present case, the Procuring Entity short listed 8 (eight) contractors and the RFP submitted by them are still lying pending for consideration before the Evaluation Committee, either to be declared responsive or nonresponsive. Moreover, the allegation was against BGP (Bangladesh) International whose right to be declared responsive or non-responsive has been adjudicated and disposed of by the respondent no. 3 without making it a party and without issuing notice providing opportunity to defend it’s part of the case by adducing documents, which is a flagrant violation of the principle of natural justice.

29. In view of the facts, circumstance, observations and findings made above the impugned order dated 10.02.2011 passed by the respondent no.3 is declared to have been passed without lawful authority and hence, of no legal effect.

30. However, CGG Veritas, France, a short listed company is at liberty to file a complaint afresh, if so desires and the respondent no. 3 is hereby directed to adjudicate the complaint, if so made, upon giving proper notice to BGP (Bangladesh) International, in accordance with law.

31. With the above observations this Rule is disposed of.There will be no order as to costs.

Ed.

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HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mr. Hasan Foez Siddique J. } Mr. Jahangir Hossain J. } } Judgment } 18.08.2011 and 21.08.2011 } } } } } } } }

Md. Ayub Hossain Khan ... Petitioner In Writ Petition No. 4608 of 2009 VS The Government of Bangladesh and others

....Respondents H.R.P.B ......Petitioner in Writ Petition No. 6766 of 2011 -VersusBangladesh and others ......Respondents In Writ Petition No. 6766 of 2011.

Constitution of Bangladesh, 1972 Article 102 The period of lease of the petitioner of Writ Petition No. 4608 of 2009 having expired in 1415 B. S. and then it was not renewed. Petitioner’s unauthorized occupation in the property in question cannot be protected invoking the writ jurisdiction.

The petitioner has been in possession for 23 years in the scheduled property as yearly lessee, who is a habitual defaulter in payment of lease money, cannot be protected from the clutches of unauthorized occupation on an application under Article 102 of the Constitution and he acquired no vested right to hold the same. The government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen. .

In view of the facts and circumstances as mentioned above our considered conclusion are that: (1) Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired in 1415 B.S. and *Writ Petition No. 4608 of 2009 with Writ Petition No. 6766 of 2011.

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the authority concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

(2) Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money, has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this Court to get lease to protect his possession. Consequently the direction as sought for is hereby refused.

(3) Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4)

The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen considering her contributions in our cultural arena ..... (48)

M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Mofazzal Hossain and another Vs. Bangladesh, 43 DLR (AD) 137, M/S. Delta Constructions Ltd. Vs. Chairman, 2nd Labour Court and another, 28 DLR 365, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, 56 DLR (AD) 24, R.S. Das Vs. Union of India AIR 1987 SC page 593, John Vs. Rees (1969) 2 ALL E R. Page 274, Breen Vs. Amalgamated Engineering Union (1991) 2B 175, Dr. Abeda Begum and others Vs. Public Service Commission, 59 DLR (HCD) 182; Shirajul Islam and others Vs. Bangladesh, 60 DLR(HCD) 79, M/S. Motilal Padampal Sugar Mills Co. Ltd. Vs. The State of Uttor Prodesh, AIR 1979 S.C. Page 621, Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another, 46 DLR (AD) 148, Union of India Vs. International Trading Co., AIR 2003 SC. 3983, Ashok Kumer Panday Vs. State of West Bengal, AIR 2004 S.C. page 280, S.P. Gupta Vs. Union of India

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(popularly known as First Judge’s Case), AIR 1982 S.C. Page 148.

Mr. Abdur Razzaq, Senior Advocate with Mr. Imran A. Siddiq, Mr. Salman A. Nabi, Advocates. ... For the petitioner in Writ Petition No. 4608 of 2009 and for the added Respondent in Writ Petition No. 6766 of 2011

Mr. Mahbubey Alam, Attorney General, with Mr. Biswojit Roy, D.A.G, Mr. Shafiquel Islam Siddique, A.A.G, and Ms. Shahida Khatoon, A.A.G. ... For Respondent No. 1 in Writ Petition No. 4608 of 2009 Mr. Manzill Murshid, Advocate, ... For the petitioner in Writ Petition No. 6766 of 2011 and for the respondent No. 4 in Writ Petition No. 4608 of 2009 Judgment Hasan Foez Siddique, J : Subject matters of both writ Petitions being Writ Petition No. 4608 of 2009 and Writ Petition No. 6766 of 2011 are same and they are heard together and disposed of by this judgment.

2.

In Writ Petition No. 4608 of 2009 a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order, being Memo. No. ‡Rtcªt/cve/ivR¯^/wfwc wgm‡Km bs 03(cve)/86-87/091396, dated 22.6.2009 issued by the Additional Deputy Commissioner (Revenue), Pabna (the Respondent No. 3) directing the petitioner to hand over possession of the Scheduled Land (Annexure –‘A’) shall not be declared to have been issued without lawful authority and is of no legal effect and further why the Respondents shall not be directed to renew the lease of the Scheduled Land in accordance with the terms and conditions set out in the Memo. dated 6.8.1991 (Annexure –‘E’) by accepting the outstanding rent payable by the petitioner from the year 1416 B.S. 3.

The writ petition No.6766 of 2011 has been filed by way of Public Interest Litigation (PIL). In that petition Rule Nisi was issued calling upon the respondents to show cause as to why the inaction of the

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respondents to take appropriate legal steps against the land grabbers of “Shuchitra Sen’s paternal house in Pabna Sadar should not be declared illegal and without lawful authority and a direction should not be given upon the respondents to ensure protection of the house of their all time famous icon and legendary actress of the sub-continent, Shuchitra Sen and why they shall not be directed to perform their duty vested upon them under the Constitution of Bangladesh.

4.

The relevant facts of writ Petition No. 4608 of 2009, in short, are that on 11th December, 1995, Moulana Md. Abdus Subhan created a trust by executing a Deed of trust for the purpose of establishing and running schools, colleges, madrasahs and medical centres. The management of the affairs of the Trust has been vested in a Board of Trustees comprising of 9 members. In 1983, the Board of Trustees of the Trust established Imam Gazzali Institute as an educational institution. On the basis of the prayer, the Additional Deputy Commissioner (Revenue), Pabna granted year to year lease of the Scheduled land of the impugned notice in favour of the petitioner commencing from 1st Paush, 1393 B.S on condition that an application had to be made for renewal of the lease at the beginning of the year following the expiry of the lease. On 2nd June, 1990, the Deputy Director, Primary Education, Rajshahi after conducting necessary enquiries granted registration to the petitioner for setting up a private school Thereafter, the petitioner, as Principal of the Imam Gazzali Institute, started a primary school. By a Memo dated 6th August, 1991 the Ministry of Land informed the petitioner that there is no provision for permanent settlement of vested properties so the lease of the scheduled land would be renewed every year until the Government takes final decision with regard to the settlement of vested properties. Thereafter, the respondents had renewed the lease of the scheduled land upon receipt of advance rent at the beginning of each year following the expiry of the lease in accordance with Clauses 4 and 5 of the lease deed. The school buildings of the institute located on the scheduled land were in a dilapidated condition. The petitioner incurred several lacs of Taka for repairing and rebuilding the roof of the school building. On 25.05.1992, the Ministry of Land permitted the petitioner to repair the school building with approval of the local administration. The respondent Nos. 2 and 3 received rent from 1393 B.S. to 1415 B.S. regularly.

On 20.04.2009, the petitioner filed application for renewal of lease of the scheduled land for the year

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1416-1417 B.S. On 20.04.2009, the petitioner requested the A.D.C (Rev) to accept the lease-money for the year 1416-1417 B.S. Meanwhile, the impugned notice has been issued directing the petitioner to hand over possession of the disputed property. The petitioner, by another letter dated 10th June, 2009 again requested the Respondent Nos. 2 and 3 to accept the rent for the year 1416-1417 B.S but they did not accept the same. Thereafter, the respondent No. 3 issued the impugned order on 22nd of June, 2009 informing the petitioner that a Museum is going to be constructed on the scheduled land and accordingly directed the petitioner to hand over possession of the said land. Challenging the letter dated 22.06.2009 (Annexure-A) the petitioner moved this Court under Article 102 read with Article 44 of the Constitution of the People’s Republic of Bangladesh and obtained the instant rule.

5.

The respondent No. 4 filed affidavit in opposition contending that the land measuring .2125 acres appertaining to S.A. Khatian No. 99, plot no. 587 of Mouza Gopalpur and the structures situated thereon (referred as scheduled property) originally belonged to Karunamoyee Das Gupta. S.A. record of right was prepared in his name. Karunamoyee Das Gupta left the then East Pakistan before 1960 for India. The Government made requisition of the said property in H.R.S. Case No. 4 of 1960 (Pab) and let out the same to their employees. Thereafter, the said property was enlisted as vested property. R.S. record of right was prepared in the name of Korunamoyee Das Gupta. The respondent No. 3 leased out the said property to the petitioner as yearly lease in V.P. Misc. Case No. 3 (Pab) of 1986-87. Thereafter, the petitioner Imam Gazzali Institute took permanent lease of 1.29 acres of land from plot No. 801 of Mouza Dakkhin Raghobpur, Pabna and constructed their four storied building thereon and started to run the function of their institution in the name of “Imam Gazzali School and College”. As per provision of new law relating to Vested Property the lease of the petitioner has been cancelled on 11.04.2001. The law does not provide any provision allowing any one to get lease of two or more pieces of land at a time. Suchitra Sen, daughter of Karunamoyee Das Gupta, a famous actress of the subcontinent was born in the disputed premises. The Government has decided to establish “Suchitra Sen Memorial Complex” in her birth place to protect and preserve her memory. Accordingly, the Deputy Commissioner, Pabna issued the notice to vacate the premises.

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6.

In writ petition No. 6766 of 2011 it has been, inter alia, stated that the petitioner is an organization.

Many cases by way of public interest litigations have been filed by them. A report had been published in ‘The Daily Sokaler Khabor’ on 13.07.2011 that paternal house of Suchitra Sen has been grabbed by some people taking support from law enforcing agencies.

The local people disclosed that Suchitra Sen, with her family, left for Kolkata at the time of partition of India.

The said house was listed as vested property. In 1987, Jamat-e-Islam, organized education center using unjust force, took lease of the said house and the adjacent land. The police failed to take steps against those land grabbers. The District Administration had issued a notice to them to vacate the premises. Imam Gazzali Institute has rebuilt the house and constructed few shops for letting out the same for business purpose. It is the constitutional duty of the respondents to preserve the birth place of Suchitra Sen and structure thereon considering her contributions in the cultural arena.

7.

The added respondent No. 7 filed affidavit-inopposition in writ petition No. 6766 of 2011. In fact, this added respondent No. 7 in his affidavit-inopposition reiterated his case as made out in writ petition No. 4608 of 2009 and further stated that the land appertaining to D.S. Khatian No. 88 and plot No. 587 jointly owned by (1) Prasanna Biswas (2) Uma Prasanna Biswas and (3) Ananda Prasanna Biswas.

The said land was never listed as a ‘natural heritage’ site by the Ministry of Culture and there is no record with either the Ministry of Culture or the Ministry of Land to prove that the scheduled land was the paternal property of Suchitra Sen. There is no public interest involved in dispossessing the respondent No. 7 from the scheduled land, which is a vested property and had been leased out to the respondent No. 7. This writ petition has been filed suppressing material facts and for the malafide purpose for harassing the respondent No. 7 who has been enjoying lawful possession in the same.

8.

Mr. Abdur Razzaq, the learned Senior Counsel appearing for the petitioner, at the out set submits that at the time of passing the impugned order of eviction the Additional Deputy Commissioner (Revenue), Pabna, neither followed the connected provisions of law and circular relating to the Vested and Nonresident Property nor the relevant provisions of the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordinance, 1970 (East

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Pakistan Ordinance No.24 of 1970). He submits that it was the duty of the respondents to issue a show cause notice giving the petitioner an opportunity of being heard before passing the order of eviction. He submits that earlier the Government in writing assured that the disputed property would be leased out to the petitioner on yearly basis until adoption of the law of permanent settlement. Accordingly, the petitioner spent huge money to repair and re-construct the structure thereon legitimately expecting that the authority will lease out the disputed property to the petitioner permanently.

The respondents are barred by the principles of estoppel in taking any steps to evict the petitioner from the premises after issuing Annexure –E. He submits that the principles of natural justice has also been violated by giving the order of eviction without issuing any opportunity of the petitioner of being heard. Mr. Razzaq seriously attacks on the maintainability of the writ petition No. 6766 of 2011 saying that the said rule has been obtained by suppressing the material facts. He submits that this petitioner took over possession of the disputed property exhausting the process of law and has possessed the same depositing lease money but the petitioner of the writ petition No. 6766 of 2011 has termed the petitioner as “land graver” which is unfortunate. The disputed property has been using as educational institution so the language as used addressing the institution is unacceptable and such type of wording in the petition should be discouraged.

9.

The learned Attorney General, appearing for the respondents in Writ Petition No. 4608 of 2009, submits that the disputed property is the vested and nonresident property. The original owner of the said property was Karunamayee Das Gupta, father of Suchitra Sen, famous artist in the cultural arena of the sub-continent. Related vested property laws allowed the Government to manage, control, administer and dispose the vested properties. After taking decision to protect and preserve the memory of Suchitra Sen, the Government issued the impugned notice to the petitioner to vacate the premises stating that the Government has taken decision to establish “Suchitra Sen Smriti Sangrashala” in her birth place. He submits that after expiry of the period of lease it was the duty of the petitioner to vacate the possession of the premises.

At present the petitioner has become unauthorised occupant in the premises and he is not entitled to get any protection to remain in possession from this Court.

He submits that at the time of allowing the petitioner to repair the building the Government imposed a

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

condition that the petitioner shall not acquire any right in the property for reasons of payment of repairing cost. He submits that since the “Imam Gazzali Institute” has already constructed their own four storied building in a different place, allotted by the Government, the eviction will not affect the future of the students of the said Institution. The learned Attorney General submits that second writ petition is that, in fact, the second petition is redundant in view of the fact that the Government has already taken decision to establish “Suchitra Sen Smriti Sangrahashala” in the property in question and in order to implement the decision, the impugned notice for eviction has been issued. After so eviction of the petitioner of writ petition No. 4608 of 2009, the Government shall take other positive steps for establishment of the ‘Suchitra Sen Smriti Sangrahashala’.

10. Mr. Manzill Murshid, the learned Advocate for the petitioner of Writ Petition No. 6766 of 2011 submits that this writ petition has been filed by way of Public Interest Litigation for a direction upon the Government to preserve and protect the birth place of great actress Suchitra Sen narrating some facts gathered from the newspaper and the petitioner was not aware about the facts of leasing out the property to Imam Gazzali Institute and pendency of the Rule and order of stay in Writ Petition No. 4608 of 2009 so he has failed to bring the said story in petition. He submits that Suchitra Sen is a symbol of pride of our cultural arena. It is the constitutional duty of Government to preserve and protect her birth place.

11. We have heard the learned Advocates for the petitioners and the learned Attorney General for the Government, peruse the writ petition, affidavit-inopposition and other materials on record.

12. The petitioner of Writ Petition No. 4608 of 2009 took lease of the disputed property in V.P. Misc. Case No. 3(Pab)/86-87 which indicates that the said V.P. Case was started sometimes in 1986-87. There is nothing before us whether the scheduled land was enlisted as enemy property before 1969 and thereafter vested and non-resident property legally or not. Since both the parties admitted that the disputed property is the vested and non-resident property, we are of the view that the process of management, administration and disposal of the same should be regulated by the laws and circulars relating to Vested and Non-resident Property.

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13. The submission of Mr. Razzaq that the authority did not comply the provision of Government and Local Authority Land and Buildings (Recovery of Possession) Ordinance, 1970 at the time of issuance of impugned notice does not deserve any consideration in view of the admission of the parties concerned that the scheduled property is vested property.

14. Another aspect was raised in affidavit-inopposition filed by added respondent no.7 of W.P. No. 6766 of 2011, that original owners of the scheduled property were Prassanya Biswas, Uma Prssanaya Biswas and Annada Prassanya Biswas not Karunamayee Das Gupta, father of Shuchitra Sen. But in 2009 when he filed W.P. 4608 of 2009 did not state anything regarding the ownership of the schedule property. A leasee is not legally entitled to make any dispute regarding the title of the lease hold property against the lessor before leaving the possession of the same as leasee.

15. In exercise of power conferred by clause –(1) of Article 30 of the Constitution of Pakistan, the President of Pakistan proclaimed Emergency on 06.09.1965. On that day, the Defence of Pakistan Ordinance was promulgated in exercise of powers under clause (4) of Article 30 read with clause (2) of Article 31 of the Constitution to meet emergency. On the same day, i.e., on 06.09.1965 the Central Government of Pakistan, in exercise of power vested under section 3 of the Defence of Pakistan Ordinance, 1965, issued the Defence of Pakistan Rules. The power conferred in sub-rule (1) of Rule 182.of the Defence of Pakistan Rules, the then Governor of East Pakistan passed an Order in the name of East Pakistan Enemy Property (Land and Buildings) Administration and Disposal Order, 1966. Clause-4 of the said order provided the provisions of the administration and disposal of enemy property which runs as follows :“4. Disposal of Property: (1) Except as provided in sub-paragraph (2) the custodian shall not transfer or otherwise dispose of any enemy property vested in him without the previous approval of the Provincial Government.

(2)The custodian may grant lease of or let out, any such enemy property for a period not exceeding one year at a time.

(3) Notwithstanding anything contained in any other law for the time being in force or in any agreement, a person to whom any enemy

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property is leased or let out under sub-paragraph (2) shall not acquire any right of occupancy in such property and shall not be entitled to hold over after the expiry of the period of lease.

(4) Notwithstanding anything contained in any other law for time being in force or in any agreement, the lessee or tenant in respect of any enemy property leased or let out under subparagraph (2) shall be liable to be evicted without notice from such property at the expiry of the term of the lease.

16. On revocation of the Defence of Pakistan Ordinance, the Enemy Property (Continuance of Emergency) Ordinance, 1969 was promulgated on 16.02.1969 wherein it was provided that the provisions of Defence of Pakistan Rules, mentioned in first column of the schedule to the Ordinance, shall continue in force and shall have effect subject to the modification specified in the second column thereof.

The purpose of the Ordinance was that notwithstanding the withdrawal of Emergency, and the Defence of Pakistan Ordinance ceasing to have effect, certain provisions of the Defence of Pakistan Rules made under the said Ordinance were sought to be continued relating to control of trading with enemy and control of firms and vesting and administration of property belonging to them.

17. Subsequent position of the connected laws had been discussed in the case of M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Their Lordships of the Appellate Division , inter alia, observed in the said case, “The Ordinance IV of 1974 the Enemy Property (Continuance of Emergency Provisions)(Repeal) Ordinance, 1974, which repealed the Enemy Property (Continuance of Emergency Provisions) Ordinance I of 1969 and provided, inter alia, that all enemy property vested in the Custodian of Enemy Property appointed under the previsions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government, meaning Government of Bangladesh. There was another Ordinance No. V of 1974. The Vested and Non-Resident Property (Administration) Ordinance 1974, which provided for the management and control of the vested and non-resident

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properties in the manner set out in the Ordinance. These Ordinances were replaced

by Act XLV of 1974, Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974, and Act No. XLVI of 1974 the Vested and Non-Resident Property (Administration) Act, 1974. There had been two subsequent enactments, namely Ordinance XCII of 1976, the Vested and NonResident Property (Administration) (Repeal) Ordinance, 1976 which repealed the Vested and Non-Resident Property (Administration) Act, 1974 followed by Ordinance XCIII of 1976 the Enemy Property (Continuance of Emergency Provision) (Repeal) (Administration) Ordinance, 1976, which has amended Section (3) of Act XLV of 1974 by providing that the properties which had vested in the Government, the right of administration, control, management and disposal of by transfer or otherwise be conferred on the government or of such officer or authority as the Government may direct.”

18.

In the case of Mofazzal Hossain and another Vs. Bangladesh, reported in 43 DLR (AD) 137, it has been observed by the Appellate Division , “The Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974 (Act XLV of 1974) on being amended by the Enemy Property (Continuance of Emergency Provisions) (Repeal) (Amendment) Ordinance, 1976 (Ordinance No. XCIII of 1976) by the relevant clause of section 3 provides that all enemy property vested in the custodian of the enemy property appointed under the provisions of the Reference of Pakistan Rules and continued in force by the Ordinance ( 1 of 1969) shall vest in the Government and shall be administered, controlled, managed and disposed of by transfer or otherwise by the Government or by such officer or authority as the Government may direct.

Circular dated 23rd May, 1977 of the Ministry of Land Administration and Land Reforms Division containing instruction for administration, management and disposal of vested property by clause 4(1), provides that ADC (Rev) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Subdivisional officer in whose jurisdiction the property is situated.”

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19.

Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

The relevant portions of circular of the Government dated 23.5.1977 run as follows :4(1) The Additional Deputy Commissioner (Revenue) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Sub-divisional Officer in whose jurisdiction the property is situated.

(2) No such approval shall be necessary for granting lease of or letting out any such property for a period not exceeding one year at a time.

5.A person to whom any vested property is leased out or let out under paragraph 4(2) shall not acquire any right of occupancy in such property and shall not be entitled to hold on after the expiry of the period of lease.

6.

The lessee or tenant in respect of any vested property shall be liable to be evicted from the said property at the expiry of the period of lease.

Clause 7: If any vested property is found in unlawful possession of any person, Sub-Divisional Officer under whose jurisdiction the said property is situated, shall issue notice on the person in unlawful possession to show cause within period not exceeding 7(seven) days as to why he will not be evicted therefrom and after giving the person an opportunity of being heard may enforce surrender of such property.

For this purpose the Sub-Divisional Officer may use or goes to be used such force as may be necessary.

20. Mr. Razzaq relying upon Clause-7 of the Circular submits that there is specific provision that seven days’ notice is to be served upon the incumbent giving an opportunity of being heard. He submits that the Circular is binding upon the maker. Issuing the impugned notice of eviction the respondents violated their own Circular which is the guiding principle to deal with the administration of Vested and Nonresident Property. Mr. Razzaq further submits that the principle of natural justice also demands that before receiving an order of eviction the person who has been possessing the property for about 23 years is entitled to get notice. In this regard Mr. Razzaq relied upon the case of M/S. Delta Constructions Ltd. Vs. Chairman, 2nd Labour Court and another, reported in 28 DLR 365.

In the cited case it was held,

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“The said circular is obviously on administrative act and cannot said to have the force of a piece of legislation. Nevertheless, the binding nature of this circular cannot be ignored, ......”

21. Mr. Razzaq also relied on the case of Chairman, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, reported in 56 DLR (AD) 24. In the cited case their Lordships of the Appellate Division have observed, “It is now a settled principle that even where provision for show cause notice and affording opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred.”

22. Mr. Mahbubey Alam, the learned Attorney General relied upon the Circular itself and submits that Clauses- 5 and 6 are applicable for the lessee who after getting lease was inducted into the possession and after expiry of the period of lease he became unauthorized occupant and Clause – 5 clearly provides that after expiry of period of lease the lessee shall not be entitled to hold the possession of the property and liable to be evicted. He submits that Clause-7 is applicable for the person who is in unlawful possession, not for the lessee who became unauthorized occupant after the expiry of the period of lease. He submits that the words “unlawful possession of any person” have been used in clause-7 meaningfully for making deference with the former leasee and unauthorized occupant. He submits that the Circular has got no legal force and on the basis of Circular an administrative order cannot be declared unlawful.

23. Clause- 4(4) of the East Pakistan Enemy Property (land and Buildings) Administration Order 1966 started with a non-obstante clause and specifically provided that lessee after expiry of the period lease shall liable to be evicted without any notice but in circular dated 23.5.1977 no such provision has been provided. Clause No.4(4) of Order clearly provided that the same is applicable for the “lessee” or “tenant” in respect of property leased out under sub-clause (2) of Clause 4 of the Order but Clause-7 of the Circular dated 23.5.1977 is applicable for “any person” who is found in “unlawful possession” in the vested property. The “words” and “language” used in those two provisions have made a clear difference between them. Those were made objectively. In view of apparent difference we find substance in the submission of the learned Attorney General.

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24. Clauses 5 and 6 of the Circular dated 23.5.1977 provided that after expiry of period of lease the lessee shall become unauthorized occupant. In Clause 5 it has been provided that the person shall not acquire any right of occupancy after getting lease of vested property and shall not be entitled to hold on the property after the expiry of the period of lease and it has further been provided that he shall liable to be evicted from the said property after the expiry of the lease period. In both the clauses the word “shall” has been used meaningfully which indicated that it is the duty of the lessee, after expiry of the period of lease, to leave the property. It is his obligation. If we accept the position that the words “unlawful possession of any person” have been used in clause– 7 of the Circular for the former lessee as well then also after the expiry of the period of lease the former lessee is not entitled to hold property.

25. The subsequent legislation to deal with vested property, is, Awc©Z m¤úwË cªZ¨vc©b AvBb, 2001 - Section 14 of the said Act says, “A¯nvqx BRviv cª`Ë cªZ¨vc©b‡hvM¨ m¤úwË m¤úwK©Z weavb | - (1) GB AvBb cªeZ©‡bi c~‡e© miKvi †Kvb cªZ¨vc©b‡hvM¨ mcwË A¯nvqx BRviv cª`vb Kwiqv _vwK‡j, BRviv `wj‡j ev Ab¨ †Kvb `wj‡j ev Ab¨ †Kvb AvB‡b ev †h †Kvb Av`vj‡Zi wm×v‡š— wfbœi~c hvnv wKQyB _vKzK bv †Kb, DI“ BRvivi †gqv` †k‡l ev GB AvB‡b cªe©Z‡bi cieZx© 360 (wZbkZ lvU) w`b, hvnv c~‡e© nq, AwZevwnZ nIqvi ms‡M ms‡M DI“ BRviv evwZj ewjqv MY¨ nB‡e Ges BRviv MªnxZv Awej‡¤^ DI“ m¤úwËi `Lj cwiZ¨vM Kwi‡eb ev †Rjv cªkvm‡Ki wbKU `Lj eySvBqv w`‡eb | Section 2(T) defined the “cªZ¨vc©b‡hvM¨ m¤úwË” which runs as follows :“cªZ¨vc©b‡hvM¨ m¤úwË A_© Awc©Z m¤úwË AvB‡bi Aax†b ZZ¡veavqK KZ©„K Awc©Z m¤úwË wnmv‡e ZvwjKvf~I“ Kiv nBhv‡Q | GBi~c m¤úwËi g‡a¨ (A) hvnv GB AvBb cªeZ©‡bi Ae¨ewnZ c~‡e© miKv‡ii `L‡j ev wbqš¿‡Y wQj ; ev ...........”

Awc©Z m¤úwË has been defined in section 2(Ka) which runs as follows :2(K) Awc©Z m¤úwË A_© Awc©Z m¤úwËi AvB‡bi Aax‡b miKv‡i b¨¯Z m¤úwË| Section 3 of said Act provided a overriding provision which runs as follows:AvcvZZ ejer Ab¨ ‡Kvb AvB‡b Ab¨i~c hvnv wKQyB _vKzK bv †Kb GB AvB‡bi weavbejx Kvh©Ki _vwK‡e|

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By an amendment section 14 as substituted by the following provision:- DI“ AvB‡bi aviv 14 Ges Dcaviv (1) Gi cwie‡Z© wbg¥i“c Dcaviv (1) cªwZ¯nvwcZ nB‡e, h_vt(1) Awc©Z m¤úwË cªZ©vc©b bv nIqv ch©š— DI“ †Rjv cªkvm‡Ki wbqš¿‡b _vwK‡e Ges wZwb cªPwjZ AvBb Abyhvqx Dnv BRviv cª`vb Kwi‡eb| 26. In view of the circumstances as mentioned above and the law and circular related thereto we have no other alternative but to hold that the possession of the petitioner in the scheduled property cannot be protected in any way and he is not entitled to hold possession of the property. The petitioner has got no option but to vacate the premises. It is the discretion of the Deputy Commissioner either to lease out or not to lease out any vested property subject to law related thereto.

27. It appears from the impugned letter dated 22.6.2009 that the petitioner was requested to vacate the premises within 8.7.2009. That is the petitioner was allowed 15 days time to vacate the same. It is not the case of the petitioner that the Government compelled the petitioner to vacate the premises without any notice. If we accept the submission of Mr. Razzaq that ‘unauthorized occupant’ as used in clause 4 and 5 and “any person in unlawful possession” of clause 7 connote same meaning even then it can be concluded that the respondents allowed 15 days time to the petitioner to vacate the premises, that is, clause 7 of the circular has been complied with substantially. The contents of the notice issued on 22.6.2009 addressing the Chairman, Imam Gazzali Institute from the office of the Deputy Commissioner are as follows:“welqt- wf,wc, †Km bs-3(cve) /86-87 fzI“ Awc©Z m¤úwËi `Lj †Q‡o †`qv cªms‡M| Dc‡ivI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q †h, wf,wc, wgm †Km bs-03(cve)/86-87 fywI“ Awc©Z m¤úwË m¥„wZ msMªn kvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ m¤úwËi `Lj †Q‡o †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv| 28. It is clear from the notice that the Government has taken decision to establish a “¯g„wZ msMªnkvjvÓ in the scheduled property and for the purpose to establish the same the premises is required and accordingly, the petitioner is allowed time till 08.7.2009 to hand over possession of the same. Notice is making something known to a person of which he was or might be

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

ignorant. Notice in its legal sense is information concerning a fact, actually communicated to a person by unauthorized person. Giving notice means that it should reach the hands of a person to whom it has to be given and the giving is complete when it has been offered to a person. Here, the Deputy Commissioner; the controller of the vested property, is the authorized person to lease out the scheduled property and he has taken decision not to lease out the same to the petitioners for establishment of “¯§„wZ msMªnkvjvÓ and 15 days time has been allowed the petitioner to vacate the possession of the premises and it is not denied that the said notice has not been offered or communicated to the petitioner. That is provision of service of notice has been complied with. It is to be relevant here to mention that circular is not law. The same is an announcement or directive typically in the form of a printed leaflet intended to be sent to many persons. The same is a administrative guide line.

29. Submission of Mr. Razzaq so for violation of the principle of natural justice is concerned it appears to us that the latest law has given wide discretion to the Deputy Commissioner in respect of leasing out the vested property. Said discretion is subject to the provision of law. We do not find any law to deal the affairs of leasing out the Vested property except circular which has got no force of law. That administrative desecration authorized by law that the Deputy Commissioner possesses power to administer the vested property. In the case of R.S. Das Vs. Union of India reported in AIR 1987 SC page 593 the Supreme Court of India observed, “It is well established that the rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of right which may be affected and the consequences which may entail its application depends upon the facts and circumstances of each case”. Here, the Government has decided not to lease out the scheduled property to the petitioner in order to establish a “¯§„wZ msMªnkvjvÓ . The petitioner has got no right in the property after the expiry of the period of lease. We shall conclude this issue with the words of Magarry in the case of John Vs. Rees (1969) 2 ALL E R. Page 274 which are:- “the result is obvious from start”. The petitioner has not acquired any right due to his previous lease he has not been affected in not giving him any opportunity of being heard. In the case of Breen Vs. Amalgamated Engineering Union reported in (1991) 2B 175 Lord Denning stated that if a man see us a privilege to which he has no particular

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claim such as an appointment to some post or other then he can turned away without word. He need not be heard . No explanation need be given. But if he is a man whose property is at stake, or who is being deprive of his livelihood then reasons should be given why he is being turned down and he should be given a chance to be heard. Here the scheduled property is the paternal property of Shuchitra Sen and Government is the custodian of the same having empowered to administer and dispose the same. The petitioner has no right in the property.

30. The next submission of Mr. Razzaq is that in view of Annexure-E the petitioner would get yearly lease of the disputed property until the Government adopts decision to lease out the vested property permanently. Getting such assurance the petitioner repaired the building spending huge amount legitimately expecting that he would get yearly lease and thereafter get permanent settlement after adoption of the law of permanent settlement. He submits that such legitimate expectation has got basis. After issuance of Annexure–E, the Government continuously leased out the said property to the petitioner. Mr. Razzaq relied upon the case of Dr. Abeda Begum and others Vs. Public Service Commission, reported in 59 DLR (HCD) 182. In the said decision it is held that the doctrine of legitimate expectation can be invoked if the impugned decision affected a person by depriving of some benefit or advantage which he had been in the passed permitted by the decision-maker to enjoy and which he can legitimately expect to continue to do until there has been communicated to him some rational grounds for withdrawing it. He also cited the case of Shirajul Islam and others Vs. Bangladesh, reported in 60 DLR(HCD) 79 wherein it has been held, “ The mere reasonable or “legitimate expectation” of a citizen in such a situation, may not by itself be a distinct enforceable right, but failure to consider and given due weight to it may render the decision arbitrary, and this is now the requirement of due consideration of a ‘legitimate expectation” form part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every ‘legitimate expectation’ is a relevant factor requiring due consideration in a fair decision making process”.

“Doctrine of ‘legitimate expectation’ is a new emerging concept. In Halsbury Laws of England it is stated that the expectation may arise either from representation or promise made by the authority, including and implied representation or from consistent

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past practice. In the case of Attorney General of Hong Kong Vs. Ng Yuen Shin, reported in 1983- 2 ALL.E.R. 346 it was held, “When a public authority has promised to follow a certain procedure it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with its statutory duty”. In the case of Schmidt Vs. Secretary of State, reported in 1969 1 ALL.E.R. page -409 it was observed, “ Even in the cases where there is no legal right he may still have legitimate expectation of receiving the benefit of privilege such expectation may either from express promise or from existence of regular practice which the applicant can reasonable expectation by invoking principle analogous to natural justice and fair play in action. In the case of Madras City Wine Merchant’s Association -Vs- The State of Tamil Nadureported in AIR 1994(SC) 509 it was observed by the Supreme of India, “Legitimate expectation may arise (a) if there is a express promise given by Public Authority (b) because of the existence of a regular practice which the claimant can reasonably expect to continue, (c) such an expectation must be reasonable”.

of Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another reported in 46 DLR (AD) 148 wherein it was held, “Having taken the decision on agreement that the specialized textile mills will be returned to their former Bangalee owners, it is not available to the Government, now to say that the decision had been revised in so far as the Mohammadi is concerned although in the case of other five concerns mentioned in the Annexure-B the Government had already released them.”

31. We shall consider the submission of Mr. Razzaq on Legitimate expectation finally along with his next submission on “Promissory estoppel” because two doctrines and arguments under the label of estoppel and legitimate expectation are substantially the same.

ÒAvcbvi 11-12-1986 Zvwi‡Li 10bs ¯^viK c‡Î Pvwn`v ‡gvZv‡eK wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j−wLZ k‡Z© †gvZv‡eK gvwmK 250/- UvKv fvWvq A¯nvqx GKmbv wfwËK 1393 m‡bi Rb¨ Avcbvi AbyKz‡j BRviv †`Iqv nBj| AÎ Av‡`k 1jv †cŠl 1393 nB‡Z Kvh©Kix nB‡e Ges Zvi c~‡e©i e‡Kqv fvovi UvKv c~e© avh©K…Z nv‡i AÎ wefv‡M cª`vb Kwi‡Z nB‡e| Ó

32. Mr. Razzaq submits that giving assurance to settle the disputed property permanently issuing Annexure-E the respondents are barred by the Provision of estoppel to say that they would not lease out the premises to the petitioner. Mr. Razzaq relied upon the case of M/S. Motilal Padampal Sugar Mills Co. Ltd. Vs. The State of Uttor Prodesh reported in AIR 1979 S.C. Page 621. In cited case it was observed, “The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.” His next citation is the case

33. The letter relating to lease out the disputed property measuring an area of .2125 acre of plot No. 587, S.A. Khatian No.99 of Mouza Gopalpur Pabna has been communicated to the chairman Imam Gazzali Institute, Pabna under Memo No.214 V.P. dt.23.3.1987, contents of the aid notice runs as follows:welqt- wf, wc, †Km bs-3(cve) 86-87 fzI“ †Mvcvjcyi 215

gnj−vi †nvwìs bs-197 Gi BRviv cªms‡M |

34. Three of the terms and conditions as stipulated in the said letter are relevant here to mention which are:(2) Avcwb webvbygwZ‡Z AÎ m¤úwËi Dci cvKv/ KvPv ev †Kvb cªKvi evox Ni wbg©vb /ˆZqvi Kwi‡Z cv‡wieb bv| (4) BRvivi mgqmxgv †kl A‡š— A_©vr erm‡ii cªvi‡¤¢ BRviv bevq‡bi Av‡e`b Kwi‡Z nB‡e Ab¨_vq BRviv evwZj ewjqv Mb¨ nB‡e| 6| AÎ Av‡`k cªvwßi 1 gv‡mi g‡a¨ 1.50 cqmv gy‡j¨i †Wwgi Dci GKwU wjR `wjj Mªnb Kwi‡Z nB‡e| DI“ †Wwg BRviv`vi‡K mieivn Kwi‡Z nB‡e| 35.

From the aforesaid letter it appears that the authority leased out the premises not the land because the words “wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j−wLZ kZ© †gvZv‡eK” lease was granted for a period of one year but same was renewable. There is nothing in the writ

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petition that as per clause 6 of the conditions any lease agreement was ever executed.

36.

From annexure-G series it appears that the petitioners paid rent of years 1409 and 1410 B.S. on 14.6.2003, 1411 B.S. on 17.5.2004, 1412 B.S. on 25.5.2005, 1413 B.S. on 29.6.2006, 1414 B.S. on 25.3.2008, 1415 B.S. on 7.8.2008 which clearly showed that the petitioner violated the terms No.4 of the letter above quoted. That is the petitioner was a habitual defaulter in payment of lease money.

37.

Mr. Razzaq relied upon Annexure-E and made his submission on legitimate expectation and promissory estoppel. Said letter was issued from Ministry of Land addressing the Chairman Imam Gazzali Institute. The contents of Annexure-E runs as follows:welqt- wf,wc, †Km bs-3(cve) /86-87 fzI“ Awc©Z I AbvMwiK m¤úwË cvebv Bgvg Mv¾vjx BbwówUD‡Ui Rb¨ ¯nvqx BRviv e‡›`ve¯— cªms‡M| 3-98evs

myÎt- Zvnvi ¯^viK bs-1713 wf,wc, Zvs 16/7/91 Bs 31-

Dc‡ivI“ welq I c‡Îmy‡Î wb‡`©kG“‡g Rvbv‡bv hvB‡Z‡Q †h, eZ©gv‡b Awc©Z m¤úwI“ ¯nvqx e‡›`ve‡¯—i weavb bvB d‡j hZw`b ch©š— Awc©Z m¤úwË m¤ú‡K© PzWvš— wmÜvš— M„wnZ bv nq ZZw`b ch©š— D‡j−wLZ Awc©Z m¤úwË cªwZôvbwUi AbyKz‡j GKmbv e‡›`ve¯— Ae¨vnZ _vwK‡e| 38. From the said letter it indicated that the same was issued on the basis of the application of the petitioner dated 16.7.1991 for permanent settlement which was rejected but it was mentioned that the process of yearly lease should be continued.

Accordingly yearly lease was continued till 1415 B.S. Subsequently another letter was issued on 25.05.1992 (annexure-F) upon which Mr. Razzaq relied on and submitted that getting assurance of permanent settlement the petitioner spent huge money for repairing the house thereby the petitioner legitimate expected that he may get the land permanently. The contents of letter dated 25.2.1992 are as follows:“Dc‡ivI“ welq I m~‡Î D‡j−wLZ ¯^vi‡Ki eiv‡Z Rvbvb hvB‡Z‡Q †h, Awc©Z m¤úwËi Dci Aew¯nZ Bgvg Mv¾vjx BbwówUDU bvgxq ¯‹zjwUi evoxi †givgZ LiP ¯‹zj KZ…©c¶ ¯nvbxq cªkvm‡bi mg¥wZG“‡g wb‡Riv enb Kwi‡Z cv‡i| Z‡e© kZ© _vwK‡e †h GB †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i †Kvb AwaKvi /`vex eZ©vB‡e bv|Ó

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39. If we consider the Annexure-C, E and F together it will be apparent that the Government never assured the petitioner that they shall lease out the disputed property permanently to the petitioner rather in the latest letter dated 25.5.1992 it has been clearly stated- "Z‡e kZ© _vwK‡e †h, GB †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i †Kvb AwaKvi/`vex eZ©vB‡e bvÓ Moreover, accepting the clause 4, 5 and 6 of the circular dated 23.5.1977 the petitioner took lease of the premises. Estoppel can only arise from a clear definite statement and the same must be unambiguous. To create an estoppel against a party, his declaration, act or omission must be of an unequivocal character. We do not find anything in the papers submitted by the petitioners that the Government has given any such declaration that the scheduled vested property should permanently be leased out to the petitioner. It is relevant here to refer the case of Union of India Vs. International Trading Co. reported in AIR 2003 SC. 3983. In the said case company was granted a fishing permit. It was, however, not renewed by the Government due to change in policy. A writ petition filed by the Company was dismissed by a single Judge but was allowed by the Division Bench in appeal. The Government approached the Supreme Court. Allowing the appeal and dismissing the writ petition the Supreme Court of India held that there was change of policy by the Government and conscious decision was taken in public interest and the doctrine of promissory estoppel and legitimate expectation had no application.

40. Considering the aforesaid facts and laws we are of the view that the submission of Mr. Razzaq on legitimate expectation and promissory estoppel does not carry any force.

41. Mr. Razzaq submits that Writ Petition No. 6766 of 2011 filed by way of public interest litigation is not maintainable. The allegation as brought in the said writ petition against the added respondent who is the petitioner of the Writ Petition No.4608 of 2009 is not acceptable. He was not the unauthorized land graver.

He was inducted into possession of the property by the respondents as lessee in 1986-87 and he had been possessing the same legally and has been possessing the same after expiry of period of lease. He had filed an application to get the said lease renewed for the year 1416 and 1417 B.S. 42. Mr. Manzill Murshid, the learned Advocate appearing for the petitioner of writ petition No. 6766 of 2011 submits that he has made the said statement

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relying upon the news item published in the News Paper. He was not aware about the story of lease of disputed premises in favour of the petitioner. He submits that he has come before this court, in order to protect and preserve the disputed property which is the birth place of famous artist Suchitra Sen. The petitioner has had no intention to assault the petitioner of Writ Petition No. 4608 of 2009 in any way.

43. The learned Attorney General submits that since the District Administration has already taken steps to establish “Suchitra Sen Smriti Sangrahashala”, in fact, the second writ is redundant. From the impugned order dated 22.6.2009 (Annexure-A) of writ petition No.4608 of 2009 it appears the District Administration has already taken decision to establish a Sangrahashala.

The contents of the said order runs as follows:ÒDchyI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q †h, wf,wc, wgm †Km bs-03(cve)/86-87 fyI“ Awc©Z m¤úwˇZ m¥„wZ msMªnkvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ Awc©Z m¤úwËi `Lj †Q‡o †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv|Ó 44. At the time of hearing the Rule the learned Deputy Attorney General produced the Photostat copy of the case record of V.P. Case No.3 (Pab) of 19861987 in this Court. On perusal of the case record it appears that the Deputy Commissioner, Pabna by a letter communicated under Memo No. †Rt cªt /cve/ ivR¯^/ wf,wc,†Km-3(cve)/86-87/2009-1463 dated 02.09.2009 has requested the Secretary, Ministry Land for necessary approval stating the present position of scheduled property. Relevant portion of the said letter run as follows:D‡j−L¨ †h, Dcgnv‡`‡ki cªL¨vZ PjwPÎ Awf‡bÎx mywPGv †m‡bi ‰cwÎK wfUv n‡”Q Awc©Z evWx| mywPÎv †mb GB evox‡Z Zvi ˆkke AwZevwnZ K‡ib Ges cvebv miKvix evwjKv DPP we`¨vj‡qi covïbvKvjxb fvi‡Z P‡j hvb| cvebvi myax mgvR `xN©w`b hver GB weL¨vZ Awf‡bÎxi ®g„wZ weRwoZ evoxi eZ©gvb jxR evwZj K‡i Z_vq mywPÎv †mb ¯g„wZ msMªnkvjv ¯nvc‡bi `vex K‡i Avm‡Q Ges G wel‡q RvZxq I ¯nvbxq ˆ`wbK cwÎKvmg~n mg_©‡b cªeÜ I msev` cªKvwkZ n‡q‡Q| mykxj mgv‡Ri c‡¶ †_‡K H evoxwU‡Z mywPÎv‡mb ¯g„wZ msMªnkvjv ¯nvc‡bi Rb¨ Av‡e`b cvIqv hvq Ges G wel‡q †Rvi `vex Ges Z`wei Pj‡Q|

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ewb©Z Ae¯nvax‡b my‡Î ewb©Z Ae¨vnZfv‡e GKmbv jx‡Ri Aby‡gv`b evwZj K‡i †Rjv cªkvmb‡K Ab¨vb¨ wf,wc, m¤úwË jxR cª`v‡bi g‡Zv ewb©Z wf,wc, m¤úwË GKmbv jxR cª`v‡bi ¶gZv w`‡q †Rjv cªkvm‡bi Z˦veav‡b Dcgnv‡`‡ki cªL¨vZ Awf‡bÎx mywPÎv †m‡bi ¯g„wZ msi¶‡bi my‡hvM `v‡bi Rb¨ webxZ Aby‡iva Kiv n‡jv| (W. G,‡K,Gg. gbRyi Kvw`i) ‡Rjv cªkvmK, cvebv| 45.

In view of the fact that the District Administration has already taken steps to evict the leasee for establishment of “Suchitra Sen Smrity Sangrahashala” and the submission of the learned Attorney General for the State that Government has already taken decision to establish Suchitra Sen Srimiti Sangrashala in the disputed property, the rule as issued in the writ petition No. 6766 of 2011, in fact, has become infractuous.

46.

The petitioner of first petition, i.e. Writ petition No. 4608 of 2009 entered into the scheduled property legally and had been in possession the same in accordance with law. The statements made in the second writ petition are not whole true.

47.

At the time of filing writ petition by way of public interest litigation the petitioner of the second writ petition should have narrated the material facts correctly. In the case of Ashok Kumer Panday Vs. State of West Bengal reported in AIR 2004 S.C. page 280 it has been observed by the Supreme Court of India that before passing any order on PIL the court must be satisfied about (i) the credentials of the applicants (ii) The prima-facie correctness of the information given by him; and (iii) the information being specific and definite. The information should also show gravity and seriousness. In the present P.I.L. the credential of the applicant is well acceptable but he failed to fill up the other two requirements as quoted above. To file P.I.L. petition, the petitioner must come not only with clean hands but also with clean heart, clean mind and clean objective. We have no doubt that the petitioner has got all those qualifications but he has

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failed to give all informations before the Court.

However we are concluding this issue with remarks made by Bhagabati J. in the case of S.P. Gupta Vs. Union of India (popularly known as First Judge’s Case) reported in AIR 1982 S.C. Page 148 . It was observed that the frontiers of the public expending far and wide and new concepts and doctrines which will change the complexion of the law and which were so far embedded in the womb of the future are beginning to be born.

48.

In view of the facts and circumstances as mentioned above our considered conclusions are that (1)

(2)

(3)

Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired in 1415 B.S. and the authority concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money, has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this Court to get lease to protect his possession. Consequently the direction as sought for is hereby refused.

Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4)

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The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen considering her contributions in our cultural arena.

49. In the result both the rules in Writ Petition No. 4608 of 2009 and writ petition No. 6766 of 2011 are discharged with the direction and observation made above.

50. Stay granted in Writ Petition No. 4608 of 2009 and ad-interim direction passed in Writ Petition No. 6766 of 2011 are hereby recalled and vacated.

51. At this stage Mr. Imran Siddique, the learned Advocate for the petitioner in Writ Petition No. 4608 of 2009 prayed for stay of the operation of the order of this Court for a period of two months to shift the school from the scheduled property. For the ends of justice the petitioner is allowed two months’ time to shift the school from the scheduled property.

52. The photocopy of the V.P. Case No.3 (Pab) of 1986-87 be kept with the record.

53.

Ed.

Send the copies of the Judgment and order to(1)

Secretary, Ministry of Land,

(2)

Secretary, Ministry of Works,

(3)

Secretary, Affairs,

(4)

Deputy Commissioner, Pabna and

(5)

Additional Deputy Commissioner (Revenue) Pabna for taking steps accordingly.

Ministry

of

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

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HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction) Mr. Syed A.B. Mahmudul Huq, J. Mr. Syed Abu Kowser Md. Dabirush-Shan, J.

}

}

Judgment 19.10.2011

Shamsul Alam Golap Alias Md. Shamsul Alam Golap . . . Accused-Petitioner

VS The State . . . Opposite Party

Code of Criminal Procedure (V of 1898) Sections 167 (5) and 498 The cardinal principle of law is enunciated in Section 167 (5) of the Code that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. From the proviso to this Section it appears that it casts an obligation towards Court to record the reasons for not granting bail. In the absence of any material for not submitting police report by the IO for a long period of the one year and eight months it is difficult for the court to assign and record the reason as to why the bail will not be granted. It appears that 14 co-accused have already been granted bail by this Hon’ble court for which the petitioner is equally entitled to go on bail. Considering the provisions of Section 167(5) of the Code for non-submission of police report and the harassment of the accused for languishing in the jail custody for more than one year and eight months the accused petitioner was enlarged on bail. ..(13 and 14).

Major (Retd) M. Khairuzzaman -Vs- The State, 3 B.L.C-344; Anwar Hossain (Md) -Vs- The State, 48 D.L.R-276.

Mr. Khandaker Mahbub Hossain with Mr. Sharif .

Ahmad ...For the petitioner Mr. Mahbubey Alam, Attorney General with Mr. Biswajit Deb Nath, D.A.G ... ... For the State.

Judgment SYED ABU KOWSER MD. DABIRUSH-SHAN, J :

This rule at the instance of accused-petitioner Shamsul Alam Golap alias Shamsul Alam Golap under Section 498 of the Code of Criminal Procedure was issued on 17-7-2011 calling upon the opposite party to show cause as to why the accused.

* Criminal Miscellaneous Case No. 19901 of 2011.

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petitioner should not be enlarged on bail in M.G.R.Case No. 151 of 2010 arising out of Motihar P.S. Case 2.

The short fact of the F.I.R. case is that on 9 -22010 one Majedul Islam Apu, General Secretary, Bangladesh Chhatra League, Rajshahi University Unit lodged the First Information Report with the Motihar Police Station against 35 accused-persons named in the F.I.R. along with 15/20 unknown persons.The said F.I.R. was recorded as Motihar P.S. Case No.05 dated 9-2-2010 under Sections 148/44/324/325 /356/ 307/302/201/114/34 of the Penal Code and also Section 3 of the Explosive Substance Act. The contention of the F.I.R is that on 9-2-2010 the accused-persons being armed with deadly weapons like Chapati, ramdao, Chaines axe, iron rod, Pistol etc. entered into the T.V. room of S.M. Hall of Rajshahi University with a ill motive of killing. Then accused Shamsul Alam Golap ordered the other accused-persons to kill the activists of the Chhatra League and then the accused Reza caused grievious hurt on the head of Shafiullah with a Chapati. Accused Sabbir caused grievous injury to the waist of Shafiullah with Chapati, accused Arif injured on the head of Taufikul Islam with Chinese axe and accused Rabiul inflicted several blow one after another on the back of Lutfor Rahman by Chapati and when Faruque protested the same the accused Khaled inflicted a ram dao blow on the right rips of Faruque then accused Mobarek Hossain hit on the back side of the head of deceased Faruque by a ram dao and accused Imon and Saifuddin caught hold the right hand of deceased Faruque and accused Liton and Nazmul Hoque by hitting on the left hand by a iron pipe broke his hand. Thereafter accused Rabiul, Tafshir, Shaheen, Milon, Ahad and Anis broke his leg by inflicting iron pipe blow as a result Faruque fell down on the ground then Shamsul Alam Golap pressed on his right rips by his leg. Thereafter when the general student came forward for the rescue of Faruque accused Shamsul Alam Golap managed to escape by firing pistol and Mobarek pointed a cut rifle towards the general student.

Thereafter the accused-persons ensured the death of Faruque and accused Obaidul, Sumon, Gazi, Bappi, Raju, Maruf and some unknown accused carried the dead body of Faruque out of T.V. room of S.M.Hall. At that time accused Ahad and Anis blasted a cocktail to frighten the general student for which the informant and others could not come to know where the dead body of Faruque was taken. After searching throughout the night dead body of Faruque was recovered from a manhole of

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Syed Amir Hall with the help of police. Thereafter the injured persons were admitted into the Rajshahi Medical College Hospital for treatment whose condition was critical and the informant could recognize the accused persons with the help of electric light. Thereafter police arrested the accused-petitioner along with others on 24-3-2010.

3.

Earlier the bail petition was moved before the learned Sessions Judge, Rajshaji on 30-5-2011 who was pleased to reject the prayer for bail of the accused petitioner by his order dated 30-5-2-11.

4.

Being aggrieved by and dissatisfied with the order of rejection of bail the accused-petitioner preferred the instant bail petition before the High Court Division under Section 498 of the Code of Criminal Procedure and obtained the present rule.

5.

Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad, the learned Counsel appearing on behalf of the accused-petitioner submits that the accused-petitioner is absolutely innocent and has committed no offence as alleged. The accusedpetitioner has been implicated in this case only because he is the President of Bangladesh Islamic Chhatra Shibir, Rajshaji University Unit. But as a matter of fact he was not at all connected with the alleged murder of Faruque. He is a brilliant student of M.Sc. Class studying in the Department of Genetics in the University of Rajshahi. The learned Counsel further submits that the accused-petitioner himself informed the Police Commissioner, Rajshahi over telephone about the occurrence and for redress. Next he submits that informant is the General Secretary of Chhatra League, Rajshahi University Unit. The occurrence took place at dead of night i.e. at 1-30 A.M. The informant narrated the entire scenario of the occurrence as if he was an onlooker. The facts which has been revealed that there was a free fight between two rival groups of students unit one was Chhatra League and another was Bangladesh Islamic Chhatra Shibir. The learned Counsel next submits that under this chaotic and Aquatic situation it was neither possible nor desirable that an office bearer of Chatra league i.e. Secretary General who was a party to the fight will observe the entire occurrence as a silent spectator without sustaining any assault or injury or without taking part in the fight.

6.

The learned Counsel finally submits that the accused-petitioner was arrested on 24-3-2010 and since then he has been languishing in the jail custody for about l(one) year 8(eight) months but till to-day the police

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could not submit the report and also it is not known when the police report will he submitted. Whereas the statutory period of submitting the police report under Section 167(5) of the Code of Criminal Procedure has been laid down that the police report should be submitted within 120 days from the date of receipt of the information relating to the commission of the offence. By now more than l(one) year 8(eight) months have already been elapsed but the Motihar Police could not submit the charge-sheet as yet. The accused petitioner who is a final year student of M.Sc. Class, his studies has been greatly hampered and disrupted as a result he could appear at the final examination.

7.

Under the facts and circumstances of the case, the learned Counsel reiterate that the co-accused who has got specific overt act in the F.I.R. were granted bail by the High Court Division in Criminal Miscellaneous Case No. 31031 of 2010, Criminal Misc. Case No. 19257 of 2010, Criminal Misc. Case No. 9845 of 2010 and Criminal Misc. Case No. 20433 of 2010.

8.

Considering the whole aspect of the case as well as the legal position of non submission of the police report within the statutory period of 120 days, the accused-petitioner is entitled to go on bail.

9.

Mr. Mahbubey Alam, learned Attorney General with Mr Biswajil Deb Nath, the learned Deputy Attorney General appearing on behalf of the state opposes the prayer for bail vehemently and submits that it was a very sensational case with a gruesome murder and it was a fight between two rival groups of students of Rajshaji University which created a sensation all over the country and has got a serious impact in the society. Next he submits that there is specific allegation against the accused-petitioner in the F.I.R. that he being the active leader of Bangladesh Islamic Chhatra Shibir who passed the order for killing the activities of Chhatra League and also he actively took part in the occurrence. He pressed the rips of deceased Faruque by his leg to ensure his death. He also opened blank fire by a pistol to terrify the talented and brilliant general student. The learned Attorney General further submits that in reply to the submission of the learned Counsel for the accusedpetitioner in respect of section 167(5) of the Code of Criminal Procedure no doubt this section is an enabling power to grant bail to an accused but this is not a mandatory but directory provision of law.

10.

In this backdrop of the case where a heinous

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crime has been committed under the active role and participation of the accused-petitioner he should not be granted bail only on the score of mere non submission of police report within the time limit. The learned Attorney General in support of his contention referred the case of Major (Retd.) M. Khairuzzaman Vs- The State which was reported in 3 B.L.C-344 and another decision referred by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State reported in 48 D.L.R-276 wherein it has been held: "The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory- on the expiry of the period for investigation the accused cannot claim bail as a matter of right."

11. In the case of Major (Retd.) M. Khairuzzaman Vs- The State, wherein it is held: "Although Section 167(5) of the Code of Criminal Procedure enjoins that if investigation is not concluded within 120 days from the date of receipt of the information relating to commission of the offence, the Court, if satisfied, can release the accused-person on bail but he cannot claim such bail as a matter of right when the delay, in the face of peculiar circumstances, in completion of investigation of the case is no ground to release the accused-petitioner on bail".

12. The learned Counsel finally submits that in this back ground of the case and also the legal position the accused-petitioner should not be allowed to go on bail and if he is granted bail in that case again he will create commotion in the University Campus.

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13. Heard the learned Counsel for the accusedpetitioner as well as the learned Attorney General for the state. Perused the F.I.R., record and other connected papers. It appears from the record that the accusedpetitioner was arrested on 24-3-2010 and the F.I.R. was lodged on 9-2-2010. Meanwhile l (one) year 8(eight) months have already been elapsed but the police could not submit charge-sheet as yet. The cardinal principle of law which has been enunciated in Section 167(5) of the Code of Criminal Procedure is that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. In the proviso of section it has been stated "Provided that for if an accused is not released on bail under this sub-section the Magistrate or as the case may be the Court of Sessions shall record the reasons for it". It appears that this section casts an obligation towards Court for what reason bail could not be granted. In the instant case prosecution could not produce any materials before the Court as to why the Investigating Officer could not submit the police report within the long time of l(one) year and 8(eight) months. If the Investigating Officer faced any impediment to submit the police report in that case the Investigating Officer ought have written the cause of inordinate delay in submitting police report in black and white. But the prosecution could not produce any materials showing what are the handicaps in submitting the police report. In the absence of production of any such impediment before the Court we are absolutely helpless to assign and record the reasons as to why the bail is not granted according to proviso of Section 167(5) of the Code. It further appears from the record and also from the submission of the learned Counsel for the accused-petitioner that 14 co-accused have already been granted bail by the Hon'ble High Court Division and among them one F.I.R. named accused No. 27 Raidul Islam was also granted bail. If the F.I.R. named accused Raidul Islam is granted bail in that case the accusedpetitioner is equally entitled to go on bail. The decision cited by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State and Major

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

(Retd) M.Khairuzzaman vs. state also leans support to the granting of bail to accused-petitioner. Wherein it has been held: that the purpose for the fixation of the period of investigation is meant for the speedy trial of the case and to save the accused from unnecessary harassment in jail custody by prolonging investigation. But this provision is directory and not mandatory. Therefore, on the expiry of the period for investigation the accused cannot claim his bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially". The purpose of adding this section after the amendment in 1992 is to enable the Court to grant bail of the accused-persons where the investigating officer unnecessarily prolonging the investigation to give harassment and suffering to the accused-petitioner.

14. In the context of the facts and circumstances of the case as well as the legal position particularly the provision of section 167(5) of the Code of Criminal Procedure for non submission of charge-sheet and also considering the harassment of the accused for languishing in the jail custody for more than l(one) year 8(eight) months, we are inclined to enlarge the accused-petitioner on bail.

15.

In the result, the rule is made absolute.

16. Let the accused-petitioner Shamsul Alam Golap alias Md. Shamsul Alam Golap, son of Motaleb Hossain of Village-Kazipara, P.S. Godagari, DistrictRajshahi be enlarged on bail on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Rajshahi till the framing of charge.

However, if the accused-petitioner misuses the privilege of bail in any manner whatsoever, the trial Court is at liberty to cancel the bail.

Ed.

292

HIGH COURT DIVISION (Civil Appellate Jurisdiction)

Mr. Khondker Musa Khaled, J. Mr. S.H. Md. Nurul Huda Jaigirdar J. Judgment 10.05.2012

} Maisha Corporation (Pvt.) Ltd. . .Appellant VS Bangabandhu Sheikh } Mujib Medical University (BSMMU) and others. ...Respondents. }

Arbitration Act (I of 2001) Section 43(1) (a) (IV) Neither the Bangabandhu Sheikh Mujib Medical University (shortly BSMMU) can be compelled to accept the Washing Plant nor any price of such plant can be allowed to spend from the Public Fund as it is contrary to Public Policy. To enforce the decision of the Syndicate of BSMMU in the line of amicable settlement like a decree of suit for specific performance of contract the award was passed by the Tribunal. Hence the Tribunal has exceeded limit of its lawful authority in passing the award and thereby it has violated the provision of section 43(1) (a) (IV) of the Arbitration Act, 2001, the impugned judgment and order is maintained.

An arbitration proceeding between the appellant Maisha Corporation (Pvt) Ltd. and the respondent Bangabandhu Sheikh Mujib Medical University (herein after will be called claimant-Company and B.S.M.M.U respectively) was started out of a dispute over the supply., acceptance, installation and commissioning of a Hospital Grade Laundry System( Washing Plant) for .

2000 bed facilities at the B.S.M.M.U. ........(2) However, it is true that the supplier quoted a consolidated price in the 2nd stage tender document against some changed machineries and country of origin in respect of Boiler and of some items was not mentioned. Even then the purchaser issued notification of award and executed the contract. But such an omission or oversight cannot exonerate the first part company from supplying the machineries as agreed by it at the time of submitting first stage tender, which is a part of the contract as per deed of contract itself. So there was no scope for him to change quality of the machineries and country of origin at the second stage tender. It is evident that the learned Arbitrators in their *First Miscellaneous Appeal No. 23 of 2010

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

judgment, while passing the Award, could not be satisfied that Washing Extractors supplied by first party were fully suitable, but stated “not totally unsuitable." .........( 21) It appears that the contract was executed on the basis of specifications given in the first stage tender and price quotation of the 2nd stage tender. Deviation as detected from the first stage tender, on the basis of which the claimant-Company was made responsive, is not legally permissible.

Moreover, notification of award dated 30.7.2006 and subsequent contract deed were executed on the basis of both the tenders, which is clear from those documents.

If the contract was made on the basis of the 2nd tender alone, what is use of the first stage tender? Rather it has been included as valid documents in the deed of contract and notification of award. So it is totally unacceptable to us that the second stage tender is the only basis of the contract. ......( 23) Neither the claimant-Company supplied some of the machineries of the Plant namely: Washer Extractors, Flat Iron and Boiler of Denmark and U.S.A in origin in accordance with its own technical specification in the first stage tender, nor the supplied Washing Plant can meet the full requirement of B.S.M.M.U's 2000 bedded Hospital keeping conformity within international standard as per the report of the experts. When it is apparent that the goods do not correspond to the specifications of the tender and are not also fit for the purpose for which it will be used, the purchaser may reject such goods or any part thereof, if it fails to pass any test or inspection as contemplated under Clause31.7 of the General Conditions of Contract (GCC). ......(28) When the contract is violated and amicable settlement failed, the B.S.M.M.U issued a letter dated 14.08.2008 on the Managing Director of Maisha Corporation (Pvt) Ltd. asking for replacement of Boiler, Washer Extractors and Flat Iron, and supply those components made in U.S.A and Denmark as per first stage tender documents. Such a letter cannot be treated as unreasonable and malafide. But on getting this letter, the claimant-company referred the matter to the Arbitrators without rectifying the wrong. ....( 29) The whole process was done very hurriedly. Moreover, when the claimant M.P. was nominated as Member of the Syndicate to see welfare of the B.S.M.M.U., he was

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not supposed to engage himself in business in the said public institution. ......( 31) So the Award to enforce a decision of the Syndicate, not being within the scope of arbitration, has clearly violated section 43(l)(a)(IV) of the Arbitration Act, 2001. ......( 32) When the matter was pending before the Amicable Settlement Committee, it was taken up by the Syndicate by inserting a supplementary agenda in the Meeting.

Such an extraneous decision should not be imposed on the assigned Purchase Committee, which is legally responsible to accept or refuse to accept the supplied goods of the contract on valid ground. .......(39) The B.S.M.M.U. can be compelled to accept the Washing Plant as supplied by the Claimant- Company nor any price of the plant or compensation for any part thereof can be allowed to spend from the Public Fund.

It is against the Public Policy meaning thereby that Public Fund cannot be misused by granting such Award. As such, the Award is not legally sustainable. .....(40) Neither there was any scope to enforce a decision of the Syndicate by the Tribunal nor any such prayer was made by the first party seeking arbitral award.

Evidently the award was passed by the Tribunal to enforce the decision of the Syndicate in the line of amicable settlement proposed by the supplier like a decree of suit for specific performance of Contract. In doing so, the Tribunal appears to have exceeded limit of its lawful authority in passing the award and as such, the Tribunal appears to have violated the provision of section 43(I)(a)(IV) of the Arbitration Tribunal Act. 2001, which is obviously, a cogent ground for setting aside Arbitral Award. .....( 41) Mr. Abdul Quayum and Mr. Md. Masudul Haque, Advocates, ......Appellant Mr. Mahbubey Alam, Attorney General and Mr. Tanjub-ul Alam, Advocates. ..For respondents Judgment Khondker Musa Khaled, J: This First Misc. Appeal under section 48 of the Arbitration Act, 2001 is directed against the judgment and order dated 1.12.2009 passed by the learned Additional District Judge, 2nd Court, Dhaka in Arbitration Misc. Case no. 543 of 2009 setting aside the Arbitral Award dated 21.6.2009.

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2.

The relevant facts for disposal of the Misc.

Appeal may be stated as follows: An arbitration proceeding between the appellant Maisha Corporation (Pvt) Ltd. and the respondent Bangabandhu Sheikh Mujib Medical University (herein after will be called claimant-Company and B.S.M.M.U respectively) was started out of a dispute over the supply., acceptance, installation and commissioning of a Hospital Grade Laundry System( Washing Plant) for 2000 bed facilities at the B.S.M.M.U. 3.

On 4.9.2009, the B.S.M.M.U published a notice in the newspaper inviting tender for procurement of Hospital Grade Laundry System to cover 2000 bedded hospital facilities. The appellant-claimant-company participated in the tender through its Managing Director, Md. Shahiduzzam and got the contract award on 30.7.2006 to supply, install and commission of the washing plant. After delivery of the washing plant, the purchaser B.S.M.M.U. conducted inspection of the same and found that the supplied washing plaint was not in accordance with the specifications, and fit for its 2000 bedded hospital. As such, the B.S.M.M.U could not accept the washing plant. Subsequently, the parties to the contract also tried to settle the dispute amicably, but the attempt was unsuccessful. Then complaintCompany referred the matter to the Arbitration.

Arbitration Tribunal was formed comprising Mr. Justice A.T.M. Afzal (Chairman), Mr. Justice Md. Awlad Ali (Member) and Barrister Aktar Imam (Member), to resolve the dispute. The claimantCompany filed statement of claim before the Arbitration Tribunal seeking following reliefs: a) Contract Price- Tk. 4,11,50,000/-. b) Interest on the contract price eat the rate of 17% from 3.4.2007 till the date of award. c)

Office expenses at the rate of Tk.30,0007-per month with effect from 3.4.2007 till the date of award.

d) Staff salary at the rate of Tk.1,60,000/-from 3.4.2007 till the date of award. e)

Time costing at the rate of 1,00,000/-from 3.4.2007 till the date of award.

f)

For the loss Tk.10,00,00,000/-.

of

future

business-

g) For the loss goodwill Tk. 5,00,00,000/-. h) Cost

of

mental

agony

and

sufferings

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Tk.3,00,00,000/-. i)

Legal expenses Tk.30,00,000/-.

involving

dispute

j)

Commission for extension of performance guarantee paid to the Bank Tk. 10,12,290/-.

4.

In support of the above claim, it was alleged that after execution of the contract for the supply of the washing plaint, the claimant-Company brought washing machineries at the premises of B.S.M.M.U on 3.1.2007, but the utility connections were provided at 1 the site after about 5 2 months. On 26.9.2007, the contractor-company installed the washing plant and requested the B.S.M.M.U. to issue acceptance certificate for payment. But the authority did not accept the same and issue acceptance certificate. Then the claimant-company sent a notice dated 22.4.2008 to the B.S.M.M.U invoking clause -39.1 of the General Conditions of Contract (G.C.C) inviting the 2nd party to settle the dispute amicably, and the then ViceChancellor of the B.S.M.M.U constituted an Amicable Settlement Committee which could not ultimately succeed in resolving the dispute. Then the Syndicate of the B.S.M.M.U. in its 28 meetings on 26.6.2008, discussed the proposal for amicable settlement brining a supplementary agenda and decided to accept the washing plant subject to the certain conditions.

The claimant-company readily agreed to fulfill those conditions. A tripartite meeting of the Central Receiving Committee, Sub-Committee and Amicable Settlement Committee was held at last on 15.7.2008, and the Central Receiving Committee took 3 weeks time. But subsequently, the Registrar of the B.S.M.M.U. refused to accept all machineries of the washing plant and requested the claimantCompany to replace certain new machineries, which according to the first party (Company) does not cover by the terms and conditions of the contract. Since the amicable settlement failed inspite of decision of the Syndicate of B.S.M.M.U, the claimant-company preferred to go to the Arbitration under Clause -39 (2) of the section 3 of the Genejal Conditions of Contract (G.C.C).

5.

The B.S.M.M.U. as the second party to the Arbitration submitted a defence setting up a counter claim against the first party, which may be summarized as follows: Syndicate of the B.S.M.M.U. is the highest body of the public institution dealing with the policy matter

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

regarding management and operation. On 9.10,2004.

Mr. Mohammad Shahiduzzaman, the then Member of Parliament (M.P) of the ruling party, was nominated as a Syndicate member of the B.S.M.M.U by the Speaker. He was also Managing Director of the claimant -company at the relevant time. Due to his undue influence, office of the Vice Chancellor initiated a proposal to purchase Hospital Grade Laundry System for 2000 bed facilities on 31.8.2005 and within a short period of 4 days, a tender was published in the daily newspaper 'Dinkal', although the University and Hospital of the B.S.M.M.U had separate committees for their own management. On 4.9.2005, the Chairman of the Central Purchase Committee of B.S.M.M.U. floated tender for procurement of Hospital Grade Laundry System with 2000 bed facilities. In response to the invitation, 5 companies including the Companies of the first party submitted tender on 12.11.2005, though the claimant-company did not have requisite experience and qualification to participate in the tender. He was also made responsive at the first stage tender. That the company had business in manufacturing and supplying cartons. Mr. Mohammad Shahiduzzam, Managing Director of the said company, actively participated in the procurement process as a tenderer and Syndicate Member of B.S.M.M.U as well. Due to his influence upon the Technical Evaluation Committee (T.E.C.), the claimant-Company was chosen as a response bidder. On 12.7.2006, the claimant-Company and another tenderer namely, Asim Construction were invited to participate in the 2nd stage tender on the basis of specification of goods to be supplied by them as per their quotation in the first stage tender. In the 2nd stage tender, only the financial specification use to be considered according to the two stage tendering method under the regulation 39 of the Public Procurement Regulation (P.P.R.) 2003. That there was no scope to change the earlier technical specification without consent of the B.S.M.M.U. But the claimantCompany subsequently deviated from the specification of goods given in the first stage tender in a fraudulent manner. However, the claimant-Company was ultimately awarded the contract on the basis technical specification mentioned in the first stage tender and corresponding quoted price of the 2nd stage tender by notification of award dated 30.7.2006. The B.S.M.M.U. was under a mistaken belief that the load bearing capacity of the Extractors would be sufficient to serve the purpose of running the Laundry System, one shift per day for 6 hours and 5 days a week as per

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international standard.

6.

The Washing Plant arrived at the premises of the B.S.M.M.U. on 3.4.2007, and after holding the inspection and tests by the Sub-Committee and BUET experts and their 2 reports dated 9.12.2007 and 27.11.2007, it transpired that the supplied Washing Plant was not fit and suitable to meet the requirement of B.S.M.M.U. Report of the Mechanical Engineering Department, BUET, submitted in the month June, 2008, shows that the supplied Washing Plant was inadequate (63% deficit) for washing 2000 bed hospital facilities. The claimant-company did not supply Extractors and other machineries as per specifications of the tender documents submitted at the first stage tender. Under the General Conditions of Contract, the purchaser may reject any goods or any part thereof if it fails to pass any test or do not conform with the specifications. That the claimantcompany failed to supply goods in accordance with the first stage tender, within time of contract i.e. 180 days fror 21.8.2006. So, the 2nd party of B.S.M.M.U. prayed for dismissal of the first party's claim and also for an Award of Tk. 4,11,15,0007- as liquidated damages.

7.

The claimant-Company or examined one witness (C.W.I) while the 2nd party produced 2 witnesses, Registrar of B.S.M.M.U and Dr. Mohammad Ali an expert from BUET, who deposed on the 4 member experts' opinion prepared by the Mechanical Engineering Department of BUET in June, 2008 (Exhibit-E).

8.

After hearing the parties, the Tribunal passed the Arbitral Award dated 21.6.2009, which was unanimous except the dissenting judgment of Mr. Justice Awlad Ali in respect of awarding interest against the 2nd party B.S.M.M.U in the said award.

The Tribunal directed the 2nd party-B.S.M.M.U. to complete acceptance of the Washing Plant and make payment of contract money along with other benefits in the following manner:"(1) The parties are bound by the decision of the Syndicate taken under supplementary agenda no.

11 dated 26.6.2008(Vide P.B. part -l, page 76, Exhibit-31), subject to the following modifications of the condition mentioned therein: a)The performance guarantee is extended for further one year from 15.07.2009;

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b)The warranty for the supplied machineriesis extended for further two years from 15.07.2009; c)The parties are directed to complete the acceptance of the Washing Plant by the 2nd Party and the payment of the contract money(Taka4,11,50,000.00(BD)to the Party within 30 days from date of the Award; (d) All other conditions remain.

2. The 1st party shall be paid an interest at the rate of 9% per annum on the aforesaid amount from 14.08.2008 (date of cause of action) (vide PB Part-1., page 91 Exhibit -38) till the date of payment.

3. The 2nd Party- Purchaser shall pay costs of this arbitration proceeding to the 1st party supplier whichweassess at TK. 15,00,000.00( Taka fifteen lac).

4. The 2nd Party - Purchaser shall pay to the 1st Party -Supplier in terms of clauses 2 and 3 above within not later than 60(sixty) days from the date of the Award."

9.

Against the aforesaid Award dated 21.6.2009 passed by the Arbitral Tribunal, the 2nd party(B.S.M.M.U.) preferred an application under section 42 of the Arbitration Act, 2001 for setting aside the Award, which was registered as Arbitration Misc.

Case no. 543 of 2009 in the Court of the learned District Judge, Dhaka. On transfer to the Court of Additional District Judge, it was heard on 17.11.2009 and judgment was delivered on 1.12.2009 setting aside the Award mainly on the ground that the Award was made in violation of section 43(1) (a)(IV) and 43(1) (b)(II) of the Arbitration Act, 2001.

10. Being aggrieved, the First party-(supplier company preferred this appeal under section 48 of the Arbitrator Act, 2001 for setting the aforesaid judgment dated 1.12.2009 passed by the learned Additional District Judge, Court no.2, Dhaka and restoration of the Award.

11. Mr. Abdul Quayum, the learned Advocate appearing on behalf of the appellant, submits that the contract was finally awarded after proper evaluation of 2nd stage tender documents both in respect of technical as well as financial specification after the first party was found responsive tender. The Maisha Corporation (Pvt.) Ltd. (the first party) also supplied

296

the machineries of the Washing Plant in accordance with such specifications as furnished earlier, and the technical Committee comprising two experts from BUET also found that the machineries were installed in accordance with the offer. In fact, an amicable settlement to the dispute was reached, which was also approved by the Syndicate of B.S.M.M.U. But unfortunately it was violated by the Central Purchase Committee of B.S.M.M.U. vide a letter dated 14.8.2008. The learned Advocate further submits that it is not a proper interpretation of law that the Arbitral Tribunal had no jurisdiction to take up such a settlement decision of the highest body of the Institution into account as the said decision of the Syndicate is very much related to the same dispute under reference to the Arbitrator. It is also submitted that the Court below has committed mistake in holding that the Arbitral award is liable to be rejected under section 43(l)(a)(IV) and section 43(l)(b)(II) of the Arbitration Act, 2001. The learned Advocate has also made submission in support of the Award assailing the impugned judgment. It is submitted that the price quoted against the aforesaid machineries in the 2nd stage tender was accepted and notification of Award was issued after modification and thereafter deed of contract was executed. According to the said contract, the claimant company supplied these machineries on the basis of the 2nd stage tender. Now the purchaser-B.S.M.M.U cannot ask for replacement of 3 machineries for which no price was quoted by the Company. So the claimant-company cannot be compelled to supply those new goods on the basis of first stage tender. It is further contended that the Syndicate of the B.S.M.M.U passed an order giving effect to the amicable settlement reached in between the parties, with some modifications. That the Tribunal committed no illegality directing parties to abide by the decision of the Syndicate. It is further contended that the work load of the Extractors was sufficiently explained by the claimant-Company in response to the query, and machineries were supplied in accordance with the said additional document which is part of the contract. So, the claimant-Company did not violate any part of the contract and non-acceptance of the supplied goods was illegal and arbitrary act of the 2nd party( B.S.M.M.U). With the above submissions, the learned Advocate has prayed for restoration of the Award on setting aside the impugned judgment.

12. Mr. Mahbubey Alam, learned Attorney General and Mr. Tanjib-ul Alam, learned Advocate have appeared o i behalf the respondent B.S.M.M.U. and

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both of them have made submissions in the following manner:According to their submissions, the Arbitral Award patently illegal, capricious and contrary to the settled fundamental principal of law as the Tribunal has directed both the parties to abide by the decision of the Syndicate. The B.S.M.M.U. is also directed to accept the Washing Plant against willingness of the purchaser and decision of the Central Purchase Committee, which is authorized body in this respect.

The purchaser has also been given direction to pay the contract money within 30 days. Those directions impliedly amount to compelling performance of contract specifically (here decision of the Syndicate), though an Arbitration Tribunal has no jurisdiction to exercise such a power of the Civil Court under the Specific Relief Act. Moreover, compensation for damages in terms of money is an adequate relief for non-performance of such a contract under section 21 A of the Specific Relief Act. It is argued that amicable settlement was not reached due to non-acceptance of the proposal by the Central Purchase Committee. As such, it cannot be treated as a contract to be specifically enforced. Moreover, the B.S.M.M.U. in no circumstances be compelled to accept the machineries of the plant, which do not satisfy the actual requirement and falls short of specification. It is submitted that the tribunal has utterly failed to consider that the purchaser can lawfully reject any goods or any part thereof under the General Conditions of Contract, if fails to pass any test, or do not conform with specification of goods to be supplied. Since the appellant- contractor failed on both the grounds, the Award suffers from the material misconduct by ignoring the 4- members' BUET Expert report, and it cannot be sustainable. The Arbitration Tribunal has misconstrued Clause 39.1 of the General Conditions of Contract, which merely provides opportunity of the purchaser and supplier to settle up all disputes amicably, failing which, the parties are free to take the matter before the Arbitral Tribunal. There cannot be any binding effect of the proposed negotiation at the amicable settlement attempt, but the Arbitral Tribunal has made the same binding on the parties. It is contended that while consecutive meetings of the Amicable Settlemet Committee were going on and no settlement could be reached, the unilateral settlement proposal of Maish Corporation (Pvt.) Ltd was taken up by the Syndicate and decision was given arbitrarily in a very unusual

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manner which is a sign of nepotism and favoritism.

Next it is contended that two stage tender system as provided under the Regulation 39 of the Public Procurement Regulation 2003, the supplier cannot change unilaterally the technical specifications given in the first stage tender without minutes of tender adjustment. But the claimant-company did not supply machineries in accordance with the specification:furnished at the first stage tender. That the Laundry System Machineries agreed to be supplied by the appellant-company were not in conformity with the first stage tender and supplied goods were not fit for the purpose of running 2000 bed hospital for which the tender was invited and the contract was made. That the tribunal has failed to consider that the Managing Director of the Tenderer namely, Maisha Corporation (Pvt.) Ltd. was an interested person in the matter, but he acted in dual capacity as a tenderer and Syndicate member of the purchaser, B.S.M.M.U. So, the agreement for the supply was voidable due to practice of fraud. Expert reports of BUET and experience of the Combined Military Hospital show that the supplied Washing Plant was not fit to serve the purpose of B.S.M.M.U for 2000 bed facilities and maintain its International Standard. So, the purchaser is legally entitled to terminate the contract for default under the provision of General Conditions of Contract. It is submitted further that the learned Additional District Judge has set aside the Award on valid grounds and as such, the impugned judgment does not call for interference.

13. We have gone through the impugned judgment, the Award passed by the Tribunal and the documents available in the paper books. It appears that the learned Additional District Judge did not consider the main aspect of the case as to whether the claimant company supplied machineries of the Washing Plant in accordance with the terms of the contract, and whether the first party-claimant is entitled to get any compensation for the alleged violation of contract by the 2nd party B.S.M.M.U. 14. At the very out set let us deal with the pertinent question whether the claimant-company supplied al machineries of the Washing Plant in accordance with tin contract.

15. The procurement method appears to be of two stage tendering. In the first stage, technical specifications of the goods are invited and the 2nd stage tender is related u quotation of prices of those

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goods. On the basis of the firsi stage tender specifying quality and other particulars of the goods, the claimant-company Maisha Corporation (Pvt.) Ltd. and another tenderer Asim Construction was made responsive and they were accordingly invited to participate in the 2n stage tender, which was considered obviously for financial specification. So both the tender documents are integral part of the contract according to the 2nd stage tendering method.

There is no scope for unilateral change in the technical specification in violation of the Regulation 39 of the Public Procurement Act, 2003.

16. Annexure-G appears to be first stage tender document dated 5.11.2005 submitted by the claimant Maisha Corporation (Pvt) Ltd. which shows that the first party claimant agreed to supply 4 Washer Extractors and Flat Iron of Denmark origin, while the Boiler was of U.S.A. But in the 2nd stage tender document dated 19.8.2006, country of origin in respect of those components were changed unilaterally. For example the country of origin in respect of 3 Washer Extractors and Flat Iron were shown to be of Sweden in place of Denmark, whereas no country of origin was stated in respect of other items including the Boiler, which was previously shown to be of U.S.A. origin. In Clause-39 of the Public Procurement Regulation Act, 2003 the two stage tendering method has been defined.

It shows that first stage tender only invites un-priced technical proposals describing technical performance, quality and other characteristics of the goods, services etc. Obviously it includes the country of origin of the goods previously proposed to be supplied 17. In clause- 39(3) Regulation- it is stated:

of the

Public

Procuremen

"In the second stage, a procuring entity shall revise the tender documentandstipulate the detailed evaluation criteria for the second stage tenders which shall include cost of ownership during the useful lifetime of the object of the procurement, where applicable, and invite all responsive tenderers from the first stage to submit their priced "best and final" tenders in accordance with the requirements of the second stage tender documents and the individual "Minutes of Tender adjustments" issued to each tenderer.'"

18. With reference words "best and final" used in the above quoted Regulation, thelearned Advocate for the appellant has argued that the 2nd stage tender being final one, the claimant-Company supplied machineries in accordance with the said tender

298

documents and did not violate terms of the contract.

But we hold the view that such a proposition as to the finality of second tender alone has not been contemplated in the Public Procurement Regulation. It is not acceptable that the words " best and final" are used in that sense. It appears that the words'" best and final" were used in Regulation so far finality of the price of the goods is concerned, and there is no scope to change the quality and other technical specifications which were once accepted by the purchaser, and on the basis of which, the claimantappellant was selected as responsive tenderer.

According to the Regulation, quoted above, 'Minute of Tender Adjustments' is also necessary to be issued to the tenderes by the purchaser in case of any subsequent modification. But neither the Supplier asked for any alternation in the tender documents in this respect, nor any minutes of tender adjustment was issued for alteration.

19. Referring to the Notification of Award dated 30.7.2006 ( Exhibit-7), the learned Advocate has further argued that it was issued after modification and correction in accordance with Tenderer's clarification to the queries and as such, supply of machineries were made properly accordance with the finally accepted 2nd stage tender.

20. It is true that a letter dated 24.6.2006(Exhibit-3) w; issued by the Member Secretary of the Central Purchase Committee asking clarification about (1) offer of Dryer, (II quality of machineries and (III) actual working loan for 2000 bed Hospital as the first stage tender documents of the claimant-Company did not disclose any information on those matters.

Exhibit-4, a reply letter dated 4.7.2006, shows that the claimant-supplier stated about a total load bearing capacity of 132 K/G, and disclosed other particulars on those items. But nothing was disclosed about change of country of origin regarding the three Washer Extractors of Denmark, Boiler of U.S.A., which were clearly slated in the first stage tender documents. No minute of tender adjustment was ever issued by the purchaser as contemplatedin Regulation 39(3) of the Public Procurement Regulation 2003.

The specifications of the first stage tender remained valid and it cannot be said to have ever modified or corrected as alleged by the learned Advocate for the appellant.

21. So, we are unable to accept the argument advanced by the learned Advocate for the appellant

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that the contract was made only on the basis of 2nd stage tender quotation. Rather we hold the view that the technical specification as quoted in the first stage tender is necessary to be looked into for acceptance of the Washing Plant. However, it is true that the supplier quoted a consolidated price in the 2nd stage tender document against some changed machineries and country of origin in respect of Boiler and of some items was not mentioned. Even then the purchaser issued notification of award and executed the contract.

But such an omission or oversight cannot exonerate the first part company from supplying the machineries as agreed by it at the time of submitting first stage tender, which is a part of the contract as per deed of contract itself. So there was no scope for him to change quality of the machineries and country of origin at the second stage tender. It is evident that the learned Arbitrators in their judgment, while passing the Award, could not be satisfied that Washing Extractors supplied by first party were fully suitable, but stated “not totally unsuitable."

designed to be built as a modern Hospital of International standard.

22. The B.S.M.M.U. is the only Medical University in our country and such an important public institution should not be subjected to any compromise in purchasing machineries which are found not fully suitable for the purpose.

26. Again, the Vice-Chancellor of B.S.M.M.U. requested the Vice-Chancellor of BUET to get the plant examined by the BUET experts and give appropriate comments regarding suitability of the Washing Plant for 2000 bedded hospital facilities. The Vice-Chancellor of B UET referred the same to the Head of the Department of Mechanical Engineering, BUET, and 4-member expert teem was formed and they submitted a detailed report in the month of June, 2008, (Exhibit-E). Concluding remarks made by those BUET Experts shows that the supplied Washing Plant was not adequate ( i.e. 63% deficit) for washing 2000 Hospital bedded facilities with one shift per day for the specified period of wash as desired by the B.S.M.M.U., if the washing is done in everyday, which is said to be International standard to be followed.

23. It appears that the contract was executed on the basis of specifications given in the first stage tender and price quotation of the 2nd stage tender. Deviation as detected from the first stage tender, on the basis of which the claimant-Company was made responsive, is not legally permissible.Moreover, notification of award dated 30.7.2006 and subsequent contract deed were executed on the basis of both the tenders, which is clear from those documents. If the contract was made on the basis of the 2nd tender alone, what is use of the first stage tender? Rather it has been included as valid documents in the deed of contract and notification of award. So it is totally unacceptable to us that the second stage tender is the only basis of the contract.

24. However, there is no dispute that lenders were floated, award notification issued and contract agreement was executed for the supply installation and commission of Hospital Grade Laundry System (Washing Plant) for 2000 bedded facilities. Now let it be examined whether the supply of Washing Plant machineries can satisfactorily serve the requirement of the B.S.M.M.U. hospital, which is

25. It appears that the Washing Plant receiving Sub-Committee comprising of four members submitted a report dated 9.12.2007 stating that it was not fit for operating 2000 bed hospital and that the Boiler was found to be a low quality component in comparison to other components of the plant and incapable of taking required load. However, the BUET expert of the same Sub-Committee submitted a separate report on 27.11.2007 stating that the machineries of the Washing Plant were supplied in accordance with the tender specifications, which is not correct as we have discussed earlier. However, they (experts) were unable to answer to be vital question whether the plant was capable of taking work load for 2000 bed hospital or not. In this respect, those experts suggested to form another independent body to observe the Washing Plant in running. condition for a period of three months.

27. Again on B.S.M.M.U's request, the Combined Military Hospital(C.M.H) has also supplied a detail information about the load bearing capacity of its own Laundry System on 18.3.2009. It shows that the working load of the said Hospital's Washing Extractors is 130 K.G./cycle for 850 bed only. The load bearing capacity of Washing Extractors supplied by the first party-Company was about 132 or 152 K.G./cycle for 2000 bedded hospital, which is not at all fit for the purpose and not in the line with the standard market practice. It appears that the first party quoted for supplying machineries having work load

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capacity of 132 K.G., which was found on the that the supplied machineries can cover work load of 152 K.Gs.whereasthereportofthe2BUET_expertsdated27.1 1.2007(Exhibit-21) shows that the requirementoftheB.S.M.M.U is 621 K.G. if it operates in one shift 5 days for 6 hours. Evaluation report of the Mechanical Engineering Department, BUET( ExhibitE) also shows that if the standard washing duration is followed, the Extractors load bearing capacity becomes inadequate.

28. Thus we find that neither the claimantCompany supplied some of the machineries of the Plant namely: Washer Extractors, Flat Iron and Boiler of Denmark and U.S.A in origin in accordance with its own technical specification in the first stage tender, nor the supplied Washing Plant can meet the full requirement of B.S.M.M.U's 2000 bedded Hospital eeping conformity within international standard as per the report of the experts.When it is apparent that the goods do not correspond to the specifications of the tender and are not also fit for the purpose for which it will be used, the purchaser may reject such goods or any part thereof, if it fails to pass any test or inspection as contemplated under Clause- 31.7 of the General Conditions of Contract (GCC).

29. It appears that when the contract is violated and amicable settlement failed, the B.S.M.M.U issued a letter dated 14.08.2008 on the Managing Director of Maisha Corporation (Pvt) Ltd. asking for replacement of Boiler, Washer Extractors and Flat Iron, and supply those components made in U.S.A and Denmark as per first stage tender documents. Such a letter cannot be treated as unreasonable and malafide. But on getting this letter, the claimant-company referred the matter to the Arbitrators without rectifying the wrong.

30. Admittedly, the Managing Director of the claimant-Company, Mr. Mohammad Shahiduzzaman, being a Member of the Parliament was nominated as a Member o the Syndicate of the B.S.M.M.U. and he was in the said capacity from 9.10.2004 to 28.10.2006.

From the date of inviting tender till 22.10.2006, he was found an active Syndicate Member of the B.S.M.M.U and during this tenure, he was also the Managing Director of the claimant Company and actively participated in the process of tender including proper evaluation, awarding contract etc. There is serious allegation that his Company having no technical and financial qualification to supply the

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Washing Plant unduly influenced the then authority of the B.S.M.M.U. through him to get tender award in its favor and the whole process of awarding the tender in favor of his Company demonstrate nepotism and favoritism as he was a very influential in the decision making process at the relevant time. It appears that Mr. Mohammad Shahiduzzaman did not make any declaration as to his relationship with the tenderer but participated both as a tenderer as well as Syndicate Member. This highly unethical and contrary to the Regulations of Public Procurement Act, 2003. The allegation of undue influence by exerting his position as a Syndicate Member and Member of Parliament, cannot be brushed aside. Because, the claimantcompany obtained work order without mentioning the country of origin against the some items in the 2nd stage tender, and in spite of the fact that load bearing specification as stated in the supplementary tender document was not sufficient for B.S.M.M.U's requirement for 2000 bed hospital and below the standard market practice as evident from the experts’ opinion, the claimant-Company got the supply award.

Unilateral change in the 2n stage tender document does not also quality him to get the contract award, but the then authority of B.S.M.M.U. overlooked all these vital defects and disqualifications. Those speak volume about malafidness and fraudulent practice, which can vitiate the whole process rendering the contract voidable.

31. This respect, Mr. Mahbubey Alam, the learned Attorney General, has brought to our notice that the office note was initiated on 31.8.2005, signed by the Vice-Chancellor on 1.9.2005 (Exhibit-B) and the tender notice was published in the Daily Dinkal on 4.9.2005 and the tender was submitted on 5.11.2005 (Annexure-G).The whole process was done very hurriedly. Moreover, when the claimant M.P. was nominated as Member of the Syndicate to see welfare of the B.S.M.M.U., he was not supposed to engage himself in business in the said public institution. In this respect, the learned Attorney General has referred to the section 1(3.1) of the General Conditions of Contract.

32. Apart from the merit regarding the contractual obligations, it transpires from the impugned judgment that the Arbitral Award has been set-aside only on the ground that the Tribunal passed the Award to enforce the terms of alleged amicable settlement as per decision of the Syndicate of the B.S.M.M.U. thought

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the dispute was not amicably settled and it was not at all the subject matter of the Tribunal to implement such a decision. So the Award to enforce a decision of the Syndicate, not being within the scope of arbitration, has clearly violated section 43(l)(a)(IV) of the Arbitration Act, 2001. We do not also find any document to show that any final decision was taken by the Amicable Settlement Committee at any point of time though it was so written in the decision of the Syndicate. Rather it appears that the claimantcompany submitted an unilateral proposal for amicable settlement on 22.6.2008, which was taken up by the Syndicate and decided to accept the same on 26.6.2008 in the name of amicable settlement. It can be easily understood that if such amicable settlement was reached in between the parties, there was no reason to take the matter before the Syndicate for any further decision. It appears from the record that while the Amicable Settlement Committee had been holding meetings and fixed another date for the 3rd meeting, the matter was hurriedly taken before the Syndicate and the decision was obtained according to the desire of the claimant-Company.

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside;

33. Section 43 of the Arbitration Act, 2001 has specifically laid down the grounds for setting aside the Award of the Arbitral Tribunal, which runs as follows:

(iii) the arbitral award is induced or affected by fraud or corruption."

"(1) An arbitral award may be set aside if(a) The party making the application furnishes proof that(i) a party to the arbitration agreement was under some incapacity; (ii) The arbitration agreement is not valid under the law to which the parties have subjected it; (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable due to some reasonable causes to present his case: (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decision on matters beyond the scope of the submission to arbitration;

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with the provisions of this Act, or, in the absence of such agreement, was not in accordance with the provisions of this Act. (b) the court or the High Court Division, as the case may be, is satisfied that(i) the subject matter of the dispute is not capable of settlement by the arbitration under the law for the time being in force in Bangladesh; (ii) the arbitral award is prima face opposed to the law for the time being in force in Bangladesh; (iii) the arbitral award is in conflict with the public policy of Bangladesh or

34. The section 43(l)(a)(iv) clearly provides that if the Award contains decision on matters beyond the scope of the submissions to the Arbitration or it deals with dispute not contemplated by or not falling within the terms of reference, it is liable to be set aside.

35. It appears from the notice dated 9.9.2008 sent by the claimant first party for resolving the dispute by arbitration and application submitted by him before the arbitral Tribunal that since the attempt of amicable settlement had failed, the first party incurred huge loss and injury in respect of money, time, goodwill, mental agony and sufferings in various ways, he is entitled get an award on all those counts.

36. Accordingly, he prayed for contract price, interest, compensation and other costs and not to enforce the contract. Neither there is any scope to seek enforcement of any decision of the Syndicate meeting or proposed amicable settlement nor any such subject

37. Moreover 9% yearly interest from 14.8.2008( cause of action) till disposal and cost of Arbitration proceedings amounting to Tk. 15,00,0007- was made payable by the 2nd party within 60 days from the date of award.

38. From the above quoted part of the Award it is evident that the tribunal has actually given effect to the decision of the Syndicate which was passed in the line of the proposed amicable settlement, though it was not agreed by administrative authority of the B.S.M.M.U. Rather the 2nd party asked for replacement of three components according to the first stage tender by a letter dated 14.8.2008 issued by the Registrar. The letter is reproduced below:

eY©bvg‡Z cÖwZ¯’vcb Ki‡Z n‡e| Electrolux Model :CFLEX900 Denmark Flat Iron

Roll Dia 800 mm & Speed upto 50m/min

eY©bvg‡Z bZzb fv‡e mieivn I ¯’vcb Ki‡Z n‡e| Electrolux Model :W31100C

110Kg

eY©bvg‡Z cÖwZ¯’vcb Ki‡Z n‡e|

Denmark

Capacity

1 .5 ton/Hr.or More

Washer extractor

(d) All other conditions remain."

FULTON

c)The parties are directed to complete the acceptance of the Washing Plant by the 2nd party and the payment of the contract money (Taka4,11,50,000.00(BD) to the 1st party within 30 days from date of the Award;

USA

b) The warranty for the supplied machineries is extended for further two years from 15.07.2009;

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Boiler

a) The performance guarantee is extended for further one year from 15.07.2009;

Model

"(1) The parties are bound by the decision of Syndicate taken under supplementary agenda no. 11 dated 26.6.2008(Vide Paper Book part -1-page 76, Lixhibit-31). Subject to the following modification of the condition mentioned therein:-

Country of Origin

matter was referred to the Tribunal for implementation. The Tribunal has nothing to do with such a decision of the Syndicate in the arbitration forum. The obligation of the parties to the contract can only be looked into in relation to the damage claimed.

But the Arbitration Tribunal appears to have passed the Award in the following manner enforcing the decision of the Syndicate in the line of proposed amicable settlement, which was admittedly failed and has no existence at all.

Remarks

Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

Name of item

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39. Thus it appears that reasonable ground was given by the B.S.M.M.U. authority for non-acceptance of the Washing Plant, and further opportunity was given to the supplier to replace three components which do not correspond to the machineries as specified by them at the first stage tender. It is further stated that the matter would be sent to the Syndicate again in case of disagreement to the proposal. It may be mentioned here that the Central Purchase Committee of B.S.M.M.U having full lawful authority to accept or refuse to accept the Washing Plant gave decision in the matter. The Central Purchase Committee should not be compelled by any other authority without legal back up. There is nothing to show that the matter was taken to the Syndicate

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Meeting in an usual official process. Rather when the matter was pending before the Amicable Settlement Committee, it was taken up by the Syndicate by inserting a supplementary agenda in the Meeting. Such an extraneous decision should not be imposed on the assigned Purchase Committee, which is legally responsible to accept or refuse to accept the supplied goods of the contract on valid ground.

40. Even if it is conceded that the B.S.M.M.U. authority committed any wrongful act or omission in awarding the supply work in spite of violation of the terms of first stage tender specification by the claimant-tenderer and illegalities in accepting the 2nd stage tender by alteration, the supplier ought to have sold the supplied Washing Plant first when it was decided unacceptable and he ought to have set a claim for the remaining loss, adjusting the sale proceeds.

The supplier-Company ought to have taken reasonable steps to mitigate the loss consequent upon purchaser's wrong even if any, and then only ask for the remaining loss and damages. But in the instant case, no reasonable step was taken to mitigate the loss. If any such damage or compensation, after adjustment of the sale proceeds of Washing Plant, is necessary to be paid to the supplier, it should fall upon the personal liability of those persons, who had issued notification of award (work order) by accepting the 2nd stage tender violating the rules and against the interest of national public institution like the B.S.M.M.U. Neither the B.S.M.M.U. can be compelled to accept the Washing Plant as supplied by the Claimant- Company nor any price of the plant or compensation for any part thereof can be allowed to spend from the Public Fund. It is against the Public Policy meaning thereby that Public Fund cannot be misused by granting such Award. As such, the Award is not legally sustainable.

41. Moreover, it is evident that the Maisha Corporation (Pvt) Ltd. submitted an application before the Tribunal to pass an award for payment contract of price, interest thereon and other monetary compensations on several heads. Neither there was any

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scope to enforce a decision of the Syndicate by the Tribunal nor any such prayer was made by the first party seeking arbitral award. Evidently the award was passed by the Tribunal to enforce the decision of the Syndicate in the line of amicable settlement proposed by the supplier like a decree of suit for specific performance of Contract. In doing so, the Tribunal appears to have exceeded limit of its lawful authority in passing the award and as such, the Tribunal appears to have violated the provision of section 43(I)(a)(IV) of the Arbitration Tribunal Act. 2001, which is obviously, a cogent ground for setting aside Arbitral Award.

42. the

It appears from the impugned judgment

that

Additional District Judge also invoked section 43(I)(a)(b)(ll) of the Arbitration Act, 2001 in setting aside the Award as there is a legal bar under section 21 (a) of the Specific Relief Act to enforce the contract, for non-performance of which, money is an adequate relief. However, neither it was suit for Specific Performance of Contract nor the Tribunal had any lawful authority to pass an Award for implementing a decision of Syndicate with such directions assuming power of the Civil Court.

43. Having due regard to the aforesaid facts and circumstances and findings, we hold the view that there is no cogent ground for setting aside the impugned judgment and order passed by the Court below in setting aside the Award.

44.

So the First Misc. Appeal fails.

45. In the result, the First Misc. Appeal is dismissed. The impugned judgment and order is maintained. We prefer ir make any order as to costs.

Send down the L.C.Rs. along with a copy of the judgment to the Court below immediately.

Ed.

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HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mr. Md. Ashfaqul Islam J. Md. Moinul Islam Chowdhury, J. Judgment 28.10.2009

} Hazi Zahirul Islam and others ……Petitioners } VS Government of Bangladesh and others } ..TP... Respondents }

Constitution of Bangladesh, 1972 Article 102 State Acquisition and Tenancy Rules, 1955 Rules 28, 29, 30, 31, 32 and 42 Once appeal has been disposed of on contest under Rule 31 of Stale Acquisition and Tenancy Rules, 1955 no review or other application lies and the settlement authority have got no jurisdiction to reopen the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955. Even Rule 42 docs not empower the Settlement Officer to sit and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955. ... (12) Md. Khalilur Rahman, Advocate …For the Petitioners Mr. S.R.M. Lutfor Rahman Akand, Advocate ...For respondent Nos 4 and Romisa Khanam Vs. Bangladesh, 61 DLR 18; (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records, 11 MLR 226 and Capital Co-operative Housing Society Ltd. Vs. Bangladesh, 45 DLR 289 ref.

Judgment Md. Ashfaqul Islam, J. At the instance of the petitioners, this Rule Nisi was issued calling upon the respondent to show cause as to why the impinged 8 (eight) notices dated 01.02.2003 issued under the signature of respondent No.3 for re-hearing of Settlement Appeal Case No.2846,2847,2849, * Writ Petition No. 2232 of 2003.

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2850,2857,2858,2859 and 3025 of 1999 with a reference to Miscellaneous Case No.760 of 2002 ( Annexure-E, E(1),E(2), E(3), E(4), E(5), E(6) and E(7) should not be declared to have been passed illegally and without lawful authority and why direction should not be issued to send the draft publication of Khatian No.237, 155, 125 and 245 of Mouza Shantinagar, Police Station Motijheel, Dhaka prepared in the name of the petitioners to the Settlement Press for final publication.

2.

Facts leading to the issuance of the present Rule, in short, arc that after completing all the stages of proceeding of survey and settlement of recent Mohanagari settlement under relevant Rules of Stale Acquisition and Tenancy Rules, 1955 (herein after referred to as S.A. and T. Rules.

1955) ( i . e . proceeding known as khanapuri, Bujaral, Attestation, objection and Appeal) 1.20 acres of land covered by D.P. Khatian No.237 of Mouza Shantinagar, under Police Station Motijheel, District- Dhaka were recorded in the names of Hazi Zahirul Islam, Jainal Abedin, Hazi Mahbubul Islam, Mojibul Islam ( the petitioner Nos. l, 2, 3 5) and 8 others, 0.4050 acre of land covered by D . P . khatian No. 155 were recorded in the name of Hazi Zahirul Islam ( T h e P e t i t i o n e r N o . 1 ) , 0.0730 acre land covered by D.P. Khatian No. 125 were recorded in t h e name of Kamal Uddin (the petitioner No.4) and 0.0078 acre land covered by D.P.Khatian No.245 were recorded in the name of Mojibul Islam( the petitioner No.5).

3.

The petitioners and their other co-sharers have been owning and possessing a total 1.837 acres of land covered by the aforesaid 4 khatians No.237, 155, 125 and 245 and some other lands total being 3.21 acres from the time of their predecessors namely Hazi Hafizuddin, Afsaruddin and Md. Taher who purchased the 3.21 acres of land including the lands covered by the aforesaid four D.P. khatians from i t s lawful owners Bamacharan Pal, Boloram Pal, Hororam Pal and Gupal Chandra Pal by registered sale deed No.4911 dated 26.08.1952 and have been owning and possessing the same by constructing residential-cum-commercial building.

4.

While the predecessors of the petitioners were owning and possessing the aforesaid 3.21 acres of land along with the building thereon, including the

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land covered by aforesaid four I ) D . P. Khatians, the then Dhaka Improvement Trust ( D I T ) issued notice for requisition of 2 . 1 9 acre of land including the land covered by 4 khatians for the purpose of acquisition for constructing North South Koad by starting L.A, Case No.8/65-66 through the A.D.C. (L.A), Dhaka. Subsequently the aforesaid 2 . 1 9 acre of land was de-requisitioned by nonce dated 24th April 1968, 5.

The land covered by the order of derequisition as well as of 4 D.P. khatians as mentioned above were wrongly recorded in the name of Collector, Dhaka as khas land but at the time of preparation of R.S. record the land in question was duly and correctly ordered to be recorded in the name of petitioner No.5 and the predecessors of other petitioners and other co-sharers in Settlement Appeal Case No. I 53 and accordingly R.S. and D.P. khatian No.53 was prepared though the respondent No.4 did not participate in any proceeding under rules 28 to 31 of the State Acquisition and Tenancy Act Rules 1955 at the time of operation of R.S. record of right before the survey and settlement authority but fraudulently entered his name in the said R.S. khatian at the time of final publication in collusion with the staffs of the Settlement Press and on the basis of the said fraudulent R.S. khatian managed to have recorded his name in the recent Mohanagari Record of Right against which the petitioners and others filed objection Case No. 10, 12, 61, 40, 41, 43, 57, 24, 30, 46, 44, 47, 48, 42, 28, 25, 22 and 69 under rule 30 of S.A. and T Rules, 1955. The objection officer heard both the parties and allowed the objection Case No. 10 and 12 by analogous judgment dated 23.6.1999.

6.

Against the said judgment passed by the objection officer respondent Nos.4 and 5 preferred Settlement Appeal Case No.2846/99, 2847/90. 2849/99, 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 under rule 31 of S.A. and T Act Rules, 19955 and being refused by the Appeal Officer preferred writ petition No.1103 of 1999 before this Court without impleading the petitioners a n d t h e i r co-sharers and obtained rule. The present petitioner Nos. l -3 and 5 and other co-sharers on being added as party in that writ petition contested the Rule which was discharged on 25.07.2001 by this Court. After that the Appeal Officer heard both the parties and dismissed the said appeal cases by analogous judgment dated 9 lh April 2002

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(annexure -D and D-1).

7.

It is further stated that after the judgment given in the appeal eases under rule 31 there is no provision other than to send the D.P. khatian to the Settlement Press for final publication under rule 32 of S.A. and T. Rules, 1995 and the petitioners were waiting for such finally published khatian but all on a sudden on 3rd February 2003 the petitioners obtained separated 8 notices issued under the signature of Settlement Officer, Dhaka, the respondent No.3 dated 01.2.2003 for re-hearing of the self name Appeal Case Nos. 2846/99, 2847/99, 2849/99. 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 under rule 31 of the State Acquisition and Tenancy Rules, 1955 by giving a reference of Miscellaneous case No.760 of 2002 . It is at this stage the petitioner moved t h i s Division under Article 102 of the constitution and obtained the present Rule.

8.

Mr. Md. Khalilur Rahman, the learned counsel appearing on behalf of the petitioners after taking us with the petition, the impugned notices and other annexure with the petition, mainly pressed that the impugned notices dated 01.2.2003 for re-hearing of the appeal Case Nos. 2846/99, 2847/99, 2849/99, 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 afresh has been issued Without any lawful authority and without jurisdiction which should be declared unconstitutional. In elaborating his argument the learned Advocate submits that the notices for re-hearing of the appeal cases is absolutely in violation of State Acquisition and Tenancy Rules, 1955. l i e submits that once the appeal has been disposed of on contest under-rule 31 no review or other application l i e s and settlement authority has no jurisdiction to re-open the mailer other than to send the draft application khatian for final publication in the settlement press under Rule 32 of the S.A and T Rules, 1955. This is well settled as he submits. In support of his contentions he placed reliance on the decision of Romisa Khanam Vs. Bangladesh 61 DLR 18, (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records 11 MLR 226 and Capital Cooperative Housing Society Ltd. Vs. Bangladesh 45 DLR 289.

9.

Mr. S.R.M. Lutfor Rahman Akand, the

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learned Advocate appearing on behalf of the respondent No.4 and 5 by filing affidavit-inopposition, on the other hand, opposes the Rule and submits that this writ petition should be discharged in that the impugned notices in respect of filing of the Miscellaneous Case No.760 of 2002 for re-hearing, of appeal eases Nos. 2846/99.

2847/99,2849/99, 285O/99, 2857/99, 2858/99, 2859/99 and 3025/99 is absolutely in accordance with law since the same has been permitted under Rule 42 of the Tenancy Rules, 1955. H e submits that Rule 42 clearly provides that settlement authority has jurisdiction to re-hear (he appeal before publication of the record of right and hence the instant writ petition filed against those notices regarding re-hearing of the appeals is not maintainable under Article 102 of the constitution 10. We have heard the learned advocate for both sides at length and considered their submissions. We have also perused the petition, impugned notices, other annexures appended to the petition and the affidavit-in-opposition carefully.

The matter is well settled by this Court as well as the Appellate Division of the Supreme Court.

11. In the ease of Romisa Khanam Vs. Bangladesh in which one of us was a party, Justice M.A. Rashid (as he then was) while dealing with the same point observed as follows: "In the scheme of revision of a record-of-rights under section 144 of the State Acquisition and Tenancy Act, 1950 there are various stages l a i d down in the Rules, 1955. After completion of attestation, the Revenue Officer shall under Rule 29 publish the draft record-of-rights for public inspection. Under Rule 30, the Revenue Officer shall decide summarily in presence of the interested parties any objection regarding ownership or possession of land or of any interest in land. Any person aggrieved by such an order on any objection made under Rule 30 may appeal to the Revenue Officer appointed with additional designation of Settlement Officer or of Assistant Settlement Officer commonly known as Appellate Officer within 30 days from the date of order appealed against. Any order passed on such appeal appears to be

306

final as no further appeal or revision is provided there from.

After disposal of the objections under Rule 30 and appeals under 31 and correction of the draft record-of-rights in accordance with the original and appellate orders on all objections, the Revenue Officer shall proceed to frame final record of rights under Rule 31 and then, publish record of rights under Rule 33. Under Rule 34, the Revenue Officer shall within sixty days of the final publication make a certificate stating the fact of such final publication and the date thereof, etc. And the Government by a notification in the official gazette may declare with regard to any specified area that the record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication.

Chapter VIII of said Rules, 1955 deals with general power of Revenue Officer in revising record-of-rights under section 144 of the State Acquisition and Tenancy Act, 1950. Rule 42 gives special power to a Revenue Officer appointed with additional designation of Settlement Officer to direct at any time before the publication of the final record of rights that any portion of the proceedings referred to in rules 28 to 32 in respect of any district, part of a district or local area shall be cancelled and the proceedings shall be taken up fresh from such stage as he may direct.

Similarly, such Settlement Officer is empowered under Rule 42A upon an application or receipt of an Official Report to correct any entry that has been procured by fraud in record-of-rights before final publication, and after consulting the relevant records and making such other enquiries as he deems necessary, to direct excision of the fraudulent entry and his act in doing so shall not be open to an appeal. At the same time, the Revenue Officer shall make the correct entry after hearing the parties and record his finding in a formal proceeding for the purpose of future reference. Bui none of such powers

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under Rule 42 or 42A of the Rules, 1955 appears to empower such Settlement Officer to s i t and or act as an appellate authority over an appellate order passed under Rule 31 and se aside such, appellate order or direct the Appellate Officer to hear an appeal afresh in respect of a particular holding. Nor the Appellate Officer is empowered to rehear an appeal which was finally disposed by him. The Settlement Officer therefore most illegally cancelled the appellate orders and compelled the Appellate Officer to hear the appeals afresh."

12. Against this decision Bhawal Raj Court of Wards Estate who was the respondent in the said case unsuccessfully moved the Appellate Division in Civil Petition for Leave to Appeal No. 1447-52 of 2008. The Appellate Division finally set at rest of the same once for a l l . All other decisions as r e f e r r e d t o above are on the same point and all these decisions settled the proposition of law that once appeal has been disposed of on contest under Rule 3 1 of Stale Acquisition and Tenancy Rules, 1955 no review or other application l i e s and the settlement authority have got no jurisdiction to re-open the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955. Even Rule 42 docs not empower the Settlement Officer to s i t and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955. In that view of the mailer, this Rule is made absolute without any order as to cost.

The impugned 8(eight) notices dated 01.2.2003 issued under the signature of respondent No.3, the Settlement Officer is hereby declared t o have been passed without any lawful authority and as such no legal effect and it is also directed to send the draft publication khatian No.237,155,125 and 245 of Mouza Santinagar, Police Station Motijhcel, Dhaka prepared in the name of the petitioners to the settlement press for final publication.

Ed.

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HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Mamnoon Rahman, J. Mr. Md. Abu Zafor Siddiuqe, J.

} Md. Boduzzaman Milon . . . .Petitioner Vs

Judgment

} Bangladesh Commerce

06.02.2012

Bank Limited } Others

And

....Opoite Parties.

Abdus Salam Sikder. ...Petitioner. } Vs } Uttar Bank Limited. ....Opposite Party } Code of Civil Procedur (V of 1908) Section 115 Artha Rin Adalat (viii of 2003) Section 44(2) Taking into consideration of the provisions of section 44(2) of the Artha Rin Adalat Ain, 2003 as well as the decision given by Apex Court, the impugned orders are being interlocatory orders are not maitainable under section 115 of the Code.. ....(27) New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others, 42 DLR (AD) 221; Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others, 46 DLR (AD) 174; Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited, 5 MLR (AD) 290; Md. Harun-or Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Kazi Gowaherul Islam (K J Islam) vs. Standard Cooperative Credit Society Ltd. and another, 50 DLR 333, Belayet Hossain vs. Bank Indosuez, 50 DLR 431; Iftekhar Afzal and another vs. Publi Bank Limited and others, 50 DLR 623; Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd., 14 BLC 501 ref. *Civil Revision No.1454 of 2009 with Civil Revision No.1318 of 2009 with Civil Revision No.195 of 2010.

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

Judgment Md. Abu Zafor Siddique, J: All these Rules were heard together and disposed of by a common judgment as they do involve similar questions of facts and laws though the parties are different.

2.

In Civil Revision No.1454 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.47 dated 23.10.2008 passed by the learned Joint District Judge, and Artha Rin Adalat, Court No.02, Dhaka in Artho Execution Case No.18 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

3.

In Civil Revision No.1318 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.54 dated 23.10.2008 passed by the learned Joint District Judge, Court No. 2, Dhaka in Artha Rin Jari No.15 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

4.

In Civil Revision No.195 of 2010, Rule was issued calling upon the opposite party to show cause as to why the Order No.17 dated 03.08.2008 passed by the learned Additional Joint District Judge (Artha Rin Adalat), Jessore in Money Execution Case No.07 of 2007 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

5.

In all these revisional applications the common fact is that the respective opposite parties namely different financial institutions instituted “Artha Rin Suits� in the respective Artha Rin Adalat impleading the respective petitioners and others as the defendants for realization of loan amount. In all these cases the plaintiffs-opposite-parties obtained decree against the defendants and pursuant to the decrees obtained by them they have filed execution cases as per the provision of Artha Rin Adalat Ain of 2003 (shortly the Ain of 2003) in the respective Artha Rin Adalat (shortly the Adalat) as define in section 2(kha) of the 2003. During pendency of the respective Artha Rin Execution cases, the respective decree holder banks filed applications under section 34 of the Ain of 2003 for detaining the petitioners in civil jail, in order to realize the decreetal amount. In all these revisional applications before this Court, the petitioners have

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challenged the orders passed by the Adalat directing to detain the respective petitioners as per section 34 of the Ain of 2003. Being aggrieved by and dissatisfied with the aforesaid orders passed by the court below the respective petitioners moved these applications and obtained the present Rules.

6.

In Civil Revision Nos.1454 of 2009 and 1318 of 2009 Mr. Md. Nurul Amin, the learned Advocate appearing on behalf of the petitioners submits that the Court below without applying its judicial mind and without considering the facts and circumstances and the provision of law most illegally and in an arbitrary manner passed the impugned judgment and orders and thereby the Court below committed error occasioning failure of justice. He further submits that in the case in hand the Court below without complying with the provision of section 34(9) of the Ain of 2003 passed the impugned judgment and order and thereby committed error of law occasioning failure of justice.

He further submits that the Court below without issuing any notice or giving any opportunity of being heard passed the impugned judgment and orders and thereby the Court below not only committed an error of law but also violated the principle of natural justice.

However, he submits that the petitioner could have preferred writ petition before this court challenging the impugned order because the question of maintainability of the instant Revisional applications is involved. He also prays for a direction from this court enabling the petitioner to approach the proper forum.

7.

Mr. Md. S.M. Maniruzzaman with Mr. M. Ataul Gani, the learned Advocate appeared on behalf of the petitioner in Civil Revision No.195 of 2010. He, however, adopted the submission made by Mr. Md. Nurul Amin, the learned Advocate.

8.

Mr. Shahajada Al Amin Kabir, the learned Advocate appearing on behalf of the opposite party in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 vehemently opposes the Rule and submits that the Court below in the cases in hand committed no error of law occasioning failure of justice in passing the impugned judgments and orders and as such all these Rules are liable to the discharged with costs. By referring to the provision of the Ain of 2003 he submits that the revisional applications under section 115 of the Code of Civil Procedure is not at all maintainable as no revision lies against any interlocutory order passed by the Adalat exercising the power conferred by the Ain of 2003.

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

9.

No one appear on behalf of the opposite party Civil Revision No.195 of 2010.

10. We have heard the learned Advocates, perused the revisional applications, impugned judgments and orders, annexures and the provision of law.

11. On perusal of the same it appears that in all these Rules the opposite parties instituted suits in the respective Adalats for realization of outstanding loan from the borrower petitioners and after due process of law the respective courts passed decrees in favour of the opposite parties. Pursuant to the provisions laid down in the Ain of 2003, the respective opposite party instituted execution cases as per Chapter-VI of the Ain of 2003. Thereafter, the Courts below proceeded with the execution cases in the respective Artha Rin Adalat.

During pendency of the execution cases on the applications made by the opposite parties the Courts below passed the impugned judgment and orders for detaining the respective petitioners in civil jail. Being aggrieved the petitioners moved this Court.

12. Section 34(1) of the Ain, 2003 deals with the provision relating to detaining any person in civil jail which runs as follows; “34| (1) Dc-aviv (12) Gi weavb mv‡c‡¶, A_© FY Av`vjZ, wWµx`vi KZ©„K `vwLjK…Z `iLv‡¯Íi cwi‡cw¶‡Z, wWµxi UvKv cwi‡kv‡a eva¨ Kwievi cÖvqm wnmv‡e, `vwqK‡K 6 (Qq) gvm ch©šÍ †`Iqvbx KvivMv‡i AvUK ivwL‡Z cvwi‡e|” 13. It appears that from the above provision of law the Court namely “Artha Rin Adalat” can pass an order detaining a judgment debtor in civil jail up to 6(six) months for realization of outstanding dues. It appears that in the present cases in hand the Courts below passed the orders on the basis of the applications made by the respective Banks. On perusal of the same it is apparent that the Courts below namely “Artha Rin Adalats” reserve the powers to detain a person for the period stipulated in sub-section(1) of section 34.

14. Hence, the main question which is to be decided in these revisions is whether the instant revisional applications under section 115(1) of the Code of Civil Procedure are at all maintainable against any interlocutory order passed by the Artha Rin Adalat exercising the powers conferred by the provisions of

I LNJ (2012)

the Ain of 2003. It is apparent that the instant proceedings are pending being Artha Rin Execution Cases and before the competent Artha Rin Adalat established as per section 2(kha) read with section 4 of the said Ain of 2003. Apart from that as per section 5 of the Ain of 2003, the Court enjoys exclusive jurisdiction relating to all matters for realization of loan of the financial institutions as defined in section 2(ka) of the said Ain. 15. Section 26 to section 39 of the Ain of 2003 deal with the detailed provisions relating to execution proceeding by a Artha Rin Adalat and these provisions described the procedure for realization of the loan after passing of decree by the Adalat. There is no doubt about the jurisdiction of the Court, in which the execution cases have been filed and proceeded. As per the Ain of 2003 all these Courts are, “Artha Rin Adalat”. Section 2(kha) of the said Ain runs as follows; “(L) ÔÔAv`vjZÓ ev ÔÔA_© FY Av`jZÓ A_© GB AvB‡bi D‡Ïk¨ c~iYK‡í aviv 4 G DwõwLZ Aaxb cÖwZwôZ ev †NvwlZ †Kvb Av`vjZ A_ev A_© FY Av`vjZ wnmv‡e MY¨ nB‡e g‡g© †Kvb hyM¥-†Rjv R‡Ri Av`vjZ|” 16. Now it is to be seen whether impugned orders passed by the executing Court in the present Artha Rin Execution Case are revisable under section 115(1) of the Code of Civil Procedure and as such, the said issue needs to be dealt with before entering into the merit of the cases.

Section 3 of the Ain of 2003 reads as follows: ÔÔ3| AvB‡bi cÖavb¨- AvcvZZt ejer AeÉ †Kvb AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi weavbvejxB Kvh©Ki nB‡e|Ó Furthermore, section 26 of the Ain of 2003 runs as follows: 26 | †`Iqvbx Kvh©wewa AvB‡bi cÖ‡qvM- The Code of Civil Procedure, 1908 Gi Ad£e gvwb wWµx Rvix msµvšÍ weavbejx, GB AvB‡bi weavbejxi mwnZ AmsMwZc~b© bv nIqv mv‡c‡¶, GB AvB‡bi Aaxb wWµx Rvixi †¶‡Î cÖ‡hvR¨ nB‡e|Ó

I LNJ (2012)

Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

17. It is important to mention that in promulgating this “Remedial Statute”, the Ain of 2003, the legislature has intended to cure some defects, errors and procedures of the repealed Artha Rin Adalat Ain, 1990, in order to ensure speedy recovery of long pending outstanding dues advanced by the financial institutions to the borrowers who are in the habit of developing a culture of non-payment of loan. To put an end to such culture some special provisions have been made including rigorous provisions like sections 19, 34, 41, 42 and 44 in the Ain, 2003. If the defaulters or borrowers are allowed to challenge each and every order passed by the Adalat, the Ain of 2003 will have to face the same consequence like that of the Ain, 1990. So, the Court must avoid construction of statute which will render the statute meaningless and ineffective and the court is to adopt the rule of liberal construction so as to give meaning to all parts of the provisions and to make the whole statute effective and operative. Apart from that the Ain of 2003 is a special law effective for the very purpose of realizing loan from the defaulted borrowers.

18. From the above quoted provisions of law, it is manifest that the legislature with the intention of speedy recovery of loan liability without any hindrance or obstruction being created by the judgment-debtors by way of filing frivolous application before the Court of law to delay and frustrate realization of the decretal amount incorporated non-obstinate clause in section 3 of the Ain of 2003 to have the effect that the said Ain shall prevail over other laws which are contrary to the said Ain of 2003.

19. As to the significance of non-obstante clause our Apex Court in the case of New Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others reported in 42 DLR (AD) 221 held as follows; “a non-obstinate clause is usually used in a provision to indicate that, that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstinate clause.”

20. Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending

310

execution proceeding so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin suit as well as for execution of decrees are applicable which are not in conflict with the Ain of 2003.

21. Section 44 of the Ain of 2003 is relevant to the instant civil revisional applications, which runs as follows: “44| AšÍe©Z©xKvjxb Av‡`k-(1) A_© FY Av`vjZ, gvgjvi mwVK I cwic~Y© wePvi I b¨vq wePv‡ii cª‡qvR‡b Ges wePvi Kvh©µ‡gi Ace¨envi cÖwZ‡ivaK‡í ‡hiƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kiv msMZ g‡b Kwi‡e, †miƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (2) Dc-aviv (3) Gi weavb mv‡c‡¶, GB AvB‡bi Aax‡b †Kvb Av`vjZ KZ©„K cÖ`Ë †Kvb AšÍ©eZ©xKvjxb Av‡`k‡K D”PZi †Kvb Av`vj‡Z Avcxj ev wiwfkb AvKv‡i weZ©wK©Z Kiv hvB‡e bv| (3) Dc-aviv (2) Gi weavb m‡Ë¡I, †Kvb c¶ aviv 41 Gi Aaxb `v‡qiK…Z Avcxj GBiƒc †Kvb welq hyw³ wnmv‡e MÖnb Kwi‡Z cvwi‡e, hvnv Dcwi-E¢õ¢Ma weav‡bi Kvi‡Y weZwK©Z Kiv hvq bvB, Ges Avcxj Av`vjZ Hiƒc welq we‡ePbvq MÖnY Kwiqv b¨vqwePv‡ii ¯^v‡_© Dchy³ †h †Kvb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó 22. In view of above provision of law no interlocutory order passed by the Artha Rin Adalat under the Ain of 2003 is appealable or revisable. In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others reported in 46 DLR (AD) 174 the Appellate Division held as follows; “revision is impliedly barred because the Adalat Act being a special legislation setting up a special Court the remedies will follow as provided therein and if there is any exclusion indicated therein, as in section 6, it will include a remedy under the general law.”

23. In the case of Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited reported in 5 MLR (AD) 290 the Appellate Division further held;

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

“In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure.”

“this Division has clearly held that revision does not lie against an order of Artha Rin Adalat.”

24. In the case of Md. Harun-or Rashid Vs. Pubali Bank Limited and others reported in 12 MLR (AD) 343 the Appellate Division held : “Joint reading of section 6 (1) and 7 of the Act shows that all judgment and order not being a decree of the Artha Rin Adalat have been treated as final and conclusive. In such situation the party aggrieved by such judgment or order of the Artha Rin Adalat cannot invoke revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure inasmuch as to construe otherwise would be inconsistent with the provisions of sections 5 (4) and 5(5) of the Artha Rin Adalat Ain.” 25. In the case of Kazi Gowaherul Islam (K J Islam) vs. Standard Co-operative Credit Society Ltd. and another reported in 50 DLR 333, Belayet Hossain vs.

Bank Indosuez reported in 50 DLR 431, and the case of Iftekhar Afzal and another vs. Publi Bank Limited and others reported in 50 DLR 623 their Lordships also held that a revisional application under section 115 of the Code of Civil Procedure against any interlocutory order passed by an Artha Rin Adalat is not at all maintainable in law.

26. In the cases as mentioned above, the said observations/decisions of our Apex Court and this Court were given under the Ain of 1990, which has already been repealed, wherein there was no specific provision debarring exercise of revisional jurisdiction by the Court concerned including the High Court Division. The impugned orders as have been passed by the executing Court are interlocutory orders, not being a decree, as has been found in the case of Syed Monjur Morshed and another vs. Manager, Agrani Bank Ltd. reported in 14 BLC 501 wherein it has been held:

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27. In view of the above facts and circumstances, the provision of law as contained in section 44(2) of the Ain of 2003, as well as the decisions of our Apex Court and this Court as referred to above, we have no other optition but to hold that the impugned orders in these revisional applications passed by the executing Court are interlocutory orders, and as such revision under section 115 of the Code is not maintainable.

28. Accordingly, all these Rules are discharged as not maintainable without any order as to costs. The order of stay granted in Civil Revision No.195 of 2010 is hereby vacated. The interim orders granted by this Court in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 are hereby recalled.

29. The respective petitioners of Civil Revision Nos. 1454 of 2009 and 1318 of 2009 are however, directed to surrender before the Courts below within 2(two) months from the date of receipt of the order.

30. Furthermore, the petitioners are at liberty to invoke any other Jurisdiction as prayed for to challenge the impugned orders, if so advised.

Communicate this order at once.

Ed.

I LNJ (2012)

Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION) Mr. Md. Nuruzzaman, J.

}

Bela Rani Dasya ....Writ Petitioner

Judgment

}

24.11.2011

VS Sree Modhusudan Mondol and others ....Respondents

Evidence Act (I of 1872) Sections 45 and 73 The court is not bound to refer a document to the hand writing expert when the court itself found the dissimilarity in LTI. The appellate court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI when the defendants admittedly failed to produce the original deed in question. ...(7) Code of Civil Procedure (v of 1908) Order XLI , Rule 31.

Mere referring some statements made in the plaint which obviously neither admitted nor evidence on record and thus, canot be a ground to reverse the evidence given on oath and hence the judgement of the appellate court is not a proper . judgement of several ..... (8) Mr. Bivash Chandra Biswas, with Mr.Hossain Md.Borhan, Advocates …For the petitioner … For the opposite parties.

No one……

Judgment The instant petitioner calling cause as to why complained of in not be set aside.

Rule has been obtained by the upon the opposite parties to show the impugned judgment and decree the petition moved in Court should

2.

The material facts relevant for disposal of the Rule, in short, is that the petitioner as plaintiff instituted Title Suit No.242/1978 for declaration that

*Civil Revision No.5135/1991 (Civil Revision No.84/1984).

312

the Deed No.10292 dated 15.11.1975 shown to have been executed by the plaintiff in favour of the defendant Nos.1-7 is a forged, fraudulent, without consideration and not binding upon the plaintiff. By amendment order dated 24.3.1981 the plaintiff also prayed for declaration and confirmation of possession, if it is proved that the plaintiff is not in possession then prayed for khas possession in the suit land. The plaint case, is that, the suit land originally belonged to Ballok Mondal. After the death of Ballok Mondal his 8 sons inherited the same. The youngest son Arjun died during the period of liberation while he was going to India.

The plaintiff is the wife of Arjun and after his death she became the heir of late Arjun. The rest 7 sons of Ballok Mondal are the defendant Nos.1-7. The plaintiff has ejmali possession in the suit land with the defendants.

In the month of December, 1977 the plaintiff came to learn that the defendant Nos.1-7 has created a deed of Kabala for the suit land. The plaintiff having been heard about the so called deed she searched for and could know that the defendants had made a deed of Kabala in Shoilkupa Sub-Registry Office, on 15th November, 1975. The plaintiff never executed such deed of Kabala in favour of anybody. The plaintiff neither took Tk.4,000/- from anybody nor executed any deed of Kabala. The plaintiff claims that the Kabala shown to have been executed by her obviously forged, fraudulent and without consideration. The plaintiff’s further believes that the defendants’ had created the deed of Kabala only to deprive the plaintiff from the suit land with malafide intention by making false personification, hence, the plaintiff compelled to file the instant suit.

3.

All the defendants contested the suit by filing written statements denying the material allegations made in the plaint, stating, inter alia, that the suit is not maintainable in it’s present form. The suit is bad for suppression of facts. It is admitted that the plaintiff’s husband Arjurn is the youngest son of Ballok Mondal and the suit land originally belonged to Ballok Mondal.

Arjun died in the year 1979, one year before the death of his father Ballok Mondal. It is not the fact that Arjun died during liberation period while he was going to India. The wife of Arjun had been living with the defendants after the death of her husband. One day Suren and Judisthir, the brothers of the plaintiff came to the plaintiff and told that the plaintiff would transfer her share of property by Kabala. The defendants being

313

Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

afraid by the proposal of the transferring of the property by the plaintiff, the defendants agreed to purchase the same and consideration money was fixed Tk.4,000/- only. The plaintiff took the consideration money from the father’s of the defendants and went to the Shoilkupa S/R Office and executed the deed of Kabala in favour of the defendants and since then the defendants have been possessing the suit property. The defendants’ father handed over the original deed to the Tahsilder and as such, the original deed in question was not in their possession. The Tahsilder did not return the original deed. The plaintiffs’ suit is nothing but harassing one and the same is liable to be dismissed with cost.

4.

At the trial the plaintiff’s side adduced 2 (two) P. Ws. And the defendants adduced2 (two) D. Ws. After conclusion of the trial the trial Court considering the materials available on record decreed the suit.

5.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court the defendants preferred appeal before the learned District Judge, Magura. Eventually the learned District Judge transferred the Title Appeal to the Court of the learned Subordinate Judge, Magura for hearing and disposal.

On appeal the learned Subordinate Judge, Magura considering the facts and circumstances and evidence on record allowed the appeal reversing the judgment and decree of the trial Court on the grounds that the plaintiff is not in possession of the suit land and the learned Munsif was wrong in deciding that it was the duty of the defendants to pray for sending the left thumb-impression for examination of the expert opinion. So, according to the appellate Court it was a wrong finding, hence, the trial Court apparently did mistake in both in facts and law. On the above two grounds the appellate Court allowed the appeal by reversing the judgment and decree of the trial Court and dismissed the suit.

6.

The points for determination is whether the appellate Court in reversing the judgment of the trial

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Court committed any error of law resulted in an error in the decision occasioning failure of justice.

7.

Mr. Bivash Chandra Biswas, with Mr.Hossain Md.Borhan, the learned Advocates appearing for the petitioner submits that the trial Court after appreciating the evidence on record opined that the plaintiff on 17.01.1979 on an application sought for a direction upon the defendants to file the original deed being deed No.10292 dated 15.11.1975 in the Court which was allowed. The defendants time and again took the plea to submit the original documents but could not file the same and later, on an application stated that the original deed was given to the Tahsilder of Isakhada for mutation and that was not returned to them by the Tahsilder. Then the court below called for a report asking the Tahsilder of Isakhada to submit a report whether the alleged deed was submitted by the defendants in the office of the Tahsidler is original or not. The Tahsilder of Isakhada submitted his report vide Memo No.90 dated 9.8.1979, Ext.3, to the Court stating that the alleged original deed of Kabala had never been filed in his office for mutation. On the facts and circumstances of the case on the applications of the plaintiff the trial Court called the LTI Register from the S/R office of Shoilkupa. On receipt of the LTI Register the learned Judge himself compared the LTI of LTI Register in serial No.14297 with the LTI of Bela Rani which has been given in the deposition-sheet. On comparison of the two L.T.Is., the trial Court noticed that there is a clear distinction in between the LTI put in the Register being Serial No.14297 and the LTI of deposition-sheet. Then the trial court opined that the LTI of Bela Rani in the deposition-sheet and the LTI in the LIT Register had no similarity. He further pointed out that the defendants’ side on the conclusion and for decision of the trial Court might send it for the expert opinion as burden of prove lies with them under section 103 of the Evidence Act. However, the defendants did not take any steps for expert opinion. He further opined

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

that P.W.2 Monoranjan in his deposition stated that he read over the disputed deed of Kabala to Bela Rani.

However, at the time of cross examination the deed Ext.C was handed over to him to read but he could not read the same. Further-more, in cross-examination he admitted that he cannot say the name of the scribe who took the LTI of Bela Rani. But from the exhibit it is seen that it was written by Monoranjan. Therefore, the trial Court on the above findings came to a clear decision that the deed in question is a forged one, and as such, decreed the suit. We find from the judgment and decree dated 28.2.1984 that appellate court without adverting the above evidence on record only basing mere surmise and conjecture reversed the trial Court’s findings though according to me the trial Court rightly decided one point, i.e., taking the expert opinion lies upon the defendants. Moreso, the Court was not bound to refer a document to the hand-writing expert when the Court itself noted the dissimilarity in LTI as defendant failed to produce the original document in court. So, I am of the view that the appellate Court itself committed error on a misconception of law that the expert opinion is necessary to resolve the dispute regarding LTI wherein the defendants admittedly failed to produce the original deed in question.

8.

Besides these, it appears to me that the judgment of the appellate Court is also tainted as the evidence and findings of the Trial Court as available on record were not adverted by the appellate court but set aside the same merely on a technical grounds that the plaintiff has failed to take the expert opinion. The learned Advocate appearing for the petitioner referring the ground no.1 of the revisional application and the deposition of P.W.1 submits that P.W.1 categorically stated that she is in possession jointly with other cosharers but the appellate Court without considering the above deposition of P.W.1 quoting some statements from the plaint opined that the plaintiff is not in possession of the suit land. P.W.1 on oath stated that

314

she is in possession and defence upon crossexamination did not fiund anything in their favour.

Mere referring some statements in the plaint which obviously neither admitted nor evidence on record and thus, cannot to be a ground to reverse the evidence given on oath. Therefore, I am of the view that the appellate Court also in that point of view committed mistake. Therefore the judgment and decree passed by the appellate Court by reversing the trial court Judgment and decree is not a proper Judgment of reversal.

9.

On the facts and circumstances of the case, it appears that the plaintiff is a widow, she only enjoy the suit land in her lifetime after her demise, the suit land if not disposed of otherwise the same must be devolved upon the heirs of the late Arjun. So there is no cogent ground to disbelieve the plaint case that the defendant only to depriving the plaintiff’s lifetime interest has created a forged document.

10. In the facts and circumstances of the case my firm view is that the court of appeal below without appreciating the evidence on record mere surmises and conjectures set aside the trial court’s judgment which resulted in an error in the decision occasioning failure of justice.

11. For the reasons and discussions made herein above, I am of the view that the judgment and decree passed by the appellate Court is tainted from legal infirmity, therefore, calls for interference by this Court for ends of justice.

12.

Thus, the Rule having merit, it succeeds.

13. In the result, the Rule is made absolute without any order as to cost.

14. The judgment and decree passed by the appellate Court in title appeal No.104 of 1981 is hereby set aside and those Judgment and decree dated 26.05.1981 of the trial Court is hereby affirmed. The office is directed to send down the L.C Record and Communicate this judgment at once.

Ed.

Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

315

HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Md. Shamsul Huda, J. Mr. Md. Abu Bakar Siddiuqe, J.

}

} Judgment 27.01.2011

The State . . .Appellant VS Md. Abdur Rouf Dewan @ Robu ...Condemner Prisoner and others Respondents.

Evidence Act (I of 1872) Section 3 It is well settled that enmity cuts both the ways i.e. there is chance of commission of offence by the accused persons and similarly there is chance of false implication in any criminal case.. .....(16) Code of Criminal Procedure (V of 1898) Sections 154 and 161 Neither the delay of 15/16 days has been explained in the FIR nor in the deposition of PW.1 when the informant herself is a police official and before lodging the FIR she went to the concerned police station and met with the Investigating Officer for several times and none prevented her from lodging the FIR . The delay in lodging the FIR gives opportunity to the prosecution for making embellishment and false implication. Before lodging of the FIR the police started investigation on the; basis of a G.D entry and such FIR is not an FIR which can at best be treated as statement of witness under Section 161 of the Code. ....(35) Evidence Act (I of 1872) Section 8 Last seen – The PWs 2 and 4 have disclosed in their evidence that they have seen the deceased with the accused persons, that is, Rouf Dewan and Hakim Dewan were standing with a Motorcycle by the side of the Balia Baid Road and such evidence does not create any credence as it is not their case that the accused persons have followed him with Microbus and abducted him. ‌..(36)

*Death Reference No. 164 of 2005 with Criminal Appeal No. 4887 of 2005 Criminal Appeal No. 4909 of 2005 Criminal Appeal No. 4999 of 2005 and Jail Appeal No. 1274 of 2005.

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Code of Criminal Procedure (V of 1898) Sections 164 and 364 In the statement of Ansar Ali neither he implicated himself in the commission of offence nor an abettor when the learned Magistrate clearly stated that Ansar Ali declined to make a confession under section 164; CrP.C and it is not understood how the I.O or the prosecution treated him as accused and how was he implicated in the charge sheet as accused and how the Magistrate considered him as witness. Under such circumstance, it was duty of the Magistrate to send him to custody without recording his statement as a witness. The Magistrate exceeded his jurisdiction and played the role of the police officer in recording the statement for which he was not instructed . The statement of Ansar Ali is not admissible in evidence as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness. The learned judge acted illegality basing his judgment on the so called statement of Ansar Ali treating it as confession of an accused. ....(39 to 43) Code of Criminal Procedure (V of 1898) Sections 161 The delayed examination of witnesses by the Investigating Officer afforded an opportunity of concoction and it makes testimony of the witness unreliable. The chart shows that the prosecution witnesses were examined at a belated stage without any explanation and and as result their testimony became untrustworthy and unreliable. Therefore, no conviction can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of no evidence. ....(45 to 49) Abdul Latif alias Budu vs. The State, 44 DLR-492; Akhtar Hossain alias Babul Akhtar Vs. State, 44 D.L.R. 83; State Vs. Paran Chandra Baroi, 2 BCR292,16 DLR 161; Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC); Kazi Mahbubuddin Ahamed Vs. the State, 25 BCR (HC) 216 ref.

Mr. Abdul Baset Majumder ... For the appellant Md. Zakirul Islam alias Jewel Mr. Munsurul Huqe Chowdhury and Mr. Fazlul Haq Khan Farid, Advocates ... For the Condemned Prisoner

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Mr. Md. Ruhul Amin Bhuiyan, Advocate ... For the appellant. Md. Ansar Ali Mr. K.M. Zahid Sarwar, DA.G with Mr. Md. Zakir Hossain Ripon, A.A..G. and Mr. Monzu Naznin (Rosy), A.A.G. .... For the State.

Mr. S.M. Shafiqul Islam ... For the Informant.

2.

Criminal Appeal No. 4887 of 2005, Criminal Appeal No. 4909 of 2005, Criminal Appeal No. 4999 of 2005 have been filed by all the appellants and Jail Appeal No. 1274 of 2005 has been preferred by the condemned prisoner, which were taken together and heard along with the death reference.

Judgment

3.

The prosecution case, in short, as gathered from the record that one Most. Noor Jahan Begum, Head Mohrar, D.C. (North Police) Office, Dhaka lodged a first information report on 17.2.1999 at about 12.50 hours alleging inter alia that on 2.2.1999 her husband Late Nayem Uddin, Office Assistant. Police Head Quarter, D.M.P, Dhaka went to his native village after taking part in the Monajat of the Bishwa Estama. His native home is situated at village Barachalia under Kaliakoir Police station. DistrictGazipur. On 2.2.1999 he started from his home towards his office in the morning, but he did not return home till 3.2.1999 as a result she sent her son to her native village in search of her husband and on that day at about 1.30 horus her son and one sister-in-law and one Sanowar Hossain informed her over telephone that he husband went on 2.2.1999 at 7 a.m. by a Motor cycle towards his working place. On getting this information she started searching her husband. At about 16 hours she got an information from DMP that the dead body of her husband is lying in the morgue of Dhaka Medical College Hospital. The dead body of her husband was sent by Savar Police Station to Dhaka Medical College Hospital and on search from Savar Police Station she came to know that her husband was killed and with an intention to conceal his dead body somebody have thrown the dead body at the side of Burirtake Kabirpur kancha road. She suspected that co-villager Abdur Rouf Dewan, Hakim Dewan, Samsu Dewan all sons of Sobhan Dcwan and Abdul Quddus, all of village- Barachala might have killed her husband as they had long standing enmity with her husband. In the last year there was uproar in between them over a Fishery Firm and enmity has been increased and as a result of which those persons might have killed her husband.

MD. SHAMSUL HUDA J: This reference under Section 374 of the Code of Criminal Procedure, 1898 has been made by the learned Judge, Druta Bichar Tribunal No. 1, Dhaka in respect of condemned prisoner Md. Abdur Rouf Dewyan @ Robu Vide ¯§viK b¤^i:- `ª“Z: we: Uªv: 1./ †dŠ: 192 ZvwiL 10-11-05Bs for confirmation of the death sentence passed by him in Druta Bichar Tribunal Case No. 8 of 2005 arising out of Savar Police Station Case No. 48(2)99 corresponding to G.R. No. 168 of 1999 convicting all the accused appellants under Section 302/34 of the Penal Code and sentencing appellant No. 1 to suffer death by hanging and sentencing each of the rest appellants to suffer rigorous imprisonment for life and also to pay a fine of tk. 50,000/- each in default to suffer rigorous imprisonment for 2 years more and also convicting the appellants under Section 201 of the Penal Code and sentenced them to suffer rigorous imprisonment for 7 years and to pay a fine of Tk. 10,000/- each in default to suffer rigorous imprisonment for a period of one year more. On the other hand Jail Appeal No. 1274 of 2005 having been prefeired by the condemned prisoner and regular Criminal Appeal No. 4909of 2005 has been preferred by the condemned prisoner along with Appellant Nos. 2) Md. Samsul Alam Samsu and 3) Abdul Hakim Dewyan and Criminal Appeal No. 4887 of 2005 has been preferred by appellant Md. Ansar Ali and Criminal Appeal No. 4999 of 2005 has been preferred by appellant Md. Zakirul Islam alias Jewel against the judgment and order of conviction and sentence dated 20.10.2005.

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

4.

After recording the First Information Report on 17.02.1999 police investigated the case and submitted charge sheet No.50 dated 23.2.2003 implicating Md. Abdur Rouf Dewan @ Robu, Md. Samsul Alam @ Samsul, Abdul Hakim Dewyan, Ansar Ali and Md. Zakirul Islam alias Jewel but excluded Md. A. Sobhan.

Aynal Kha, Zakir Hossain and A. Quddus from the change sheet.

5.

After observing all legal formalities at first the case was transmitted to the learned Additional Sessions Judge, Dhaka, who framed charge against the aforesaid accused persons under Section 302/201/34 of the Penal Code. Thereafter it was transferred to the Druto Bichar Tribunal No. 1, Dhaka for trial.

6.

It may be mentioned here that before lodging the F.I.R. one U.D. case being No. 6 dated 2.2.1999 was started on the information of S.I. Md. Kamruzzaman.

7.

Mr. K.M. Zahid Sarwar, learned Deputy Attorney General while placing the reference before us he thoroughly read over the F.I.R., charge sheet, charge, evidence on record and the impugned judgment and submits that although in this case there is no eye witness of murder, but there is strong circumstantial evidence that the deceased while coming to Dhaka by a Motor Cycle he was seen by Md. Abdul Ali and he saw the deceased standing on the road of Balia Bayed with Rouf Dewan and Hakim Dewan and P.W. 4 Abdur Rahim saw the deceased going towards Dhaka by a Motor Cycle and he saw a Microbus wherein he could identify one Shamsu Dewan inside the Microbus and subsequently during investigation one accused Ansar Ali nmade a confessional statement. stating that on the fateful day some persons brought, the deceased in a Microbus and pushed him into Sultana Decorator wherein he is a Caretaker, and they shut down the shutter of the Decorator shop and he heard sound of fighting inside the Sultana Decorator while he was standing outside the said shop and after some time one of those persons, who was standing

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outside opened the shutter and Ansar Ali helped him to open the shutter and they carried the person by Microbus and subsequently the dead body was recovered.

8.

In Postmortem report it appears that the deceased was killed by throat ling. Ansar Ali could identify Abdur Rouf Dewan. The learned Deputy Attorney General strenuously submits that in this type of case some times the independent witness do not come forward to depose against the accused persons with whom deceased had long standing enmity and as a result the witness who are related to deceased have deposed in this case and for the reason of relationship their testimony cannot be disbelieved. The circumstances which has been proved by the prosecution witnesses, the case is well proved and the learned Judge of the Tribunal rightly convicted the accused persons.

9.

Mr. Abdul Baset Majumder, Mr. Minsurul Huq Chowdhury and Mr. Fazlul Haq Khan Farid appeared for the appellants in different appeals.

10. Mr. Fazlul Haq Khan Farid, learned Advocate argued on behalf of the appellants except Ansar Ali. Md. Ruhul Amin Bhuiyan, the learned Advocate advanced his argument on behalf of appellant Md. Zakirul Islam alias Jewel. Their main argument is that total allegations against all the accused persons is nothing but a cock and bull story. Learned Advocate Mr. Farid at first drawn our attention to the F.I.R. and submits that the alleged occurrence took place on 2.2.1999 and the F.J.R. was lodged on 17.2.1999. The informant herself is a responsible official of the police department and at the same time the deceased was also an official of police department and there is no earthly reason for causing delay in lodging the F.J.R. which was lodged after such a long time. In this connection the learned Advocate has drawn our attention to the evidence of the first investigating officer and submits that the P.W. 1 admitted that before lodging of the F.I.R. the informant several times met the investigating

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

officer and he conducted investigation on the basis of a G.D. Entry, but nobody prevented her to lodge the F.I.R. at an earliest possible time. The cause of delay is not at all explained in the F.I.R. 11. In this regard reference may be made to 44 DLR-492, Abdul Latif alias Budu vs. The State: Held: "The court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was caused for manipulation of the prosecution story."

12. Further, admittedly the so called F.I.R was lodged during investigation having been conducted by the police with reference to Saver P.S.G.D.E No. 89 dated 02.02.1999 and as such the F.I.R. which has been exhibited in the court is not admissible in evidence in as much as the same is nothing but a statement of witness being recorded under section 161of the Code of Criminal Procedure.

13. In this regard reference may be made to 44 D.L.R. 83, the case of Akhtar Hossain alias Babul Akhtar Vs. State.

Held: "The document exhibited as F.I.R. in the case could not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was GD entry thereon but the same have not been produced." Further reference may be made to the case of the State Vs. Paran Chandra Baroi. Reported in 2 BCR-292: Held: "It is now well settled that the first Information Report recorded after commencement of investigation is a statement of a person before the police and is inadmissible in evidence. Therefore, there is

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no First Information Report in the present case, the same being inadmissible.�

14. In view of the aforesaid reported decisions we hold that in this case the so-called belated F.I.R. is inadmissible in evidence and since the earlier G.D.E. has not been produced before the trial court the case has no leg to stand.

15. Learned Advocates for the defence strenuously argued thatthe several investigating officers investigated the case one after another and lastly the C.I.D falsely implicated the convict accused persons being influenced by the informant as she herself and her deceased husband were officials of police department and one of their relation was high ranking police officer at the relevant period.

16. As regards previous enmity of deceased with the F.I.R. named accused persons, particularly the appellants has not been proved at all and if for argument sake it is admitted that there was enmity in between them but h 17. On the other hand the learned Judge of the Tribunal without applying his judicial mind convicted the accused persons and he has passed death sentence in respect of condemned prisoner in a case which is practically a case of no evidence and as such they humbly prayed to reject the reference and to allow the appeals.

18.

Now let us discuss the evidence on record.

19. P.W. 1 corroborated her F.I.R. story and proved the same which was marked as exhibit- 1. She did not give any explanation as to cause of delay in lodging the F.I.R. before the court in her deposition. In cross examination she stated that the dead body of her husband was buried on 4.2.1999 at his village home where she met with her brother -in-law Abdur Rahim but she was not told by Abdur Rahim that he saw the deceased before his death. She further stated that she went to Thana after 3 days of burial of her husband but

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

she lodged the F.I.R. on 19.2.1999 (although F.I.R. was lodged on 17.2.1999) as appeared from the case record.

She denied the suggestion that the convict accused appellants are not involved with the commission of murder of her husband. In fact she could not prove the occurrence of murder of her husband.

20. P.W. 2 Md. Abdul Ali stated in his examination in-chief that on 2.2.1999 at about 8.00/ 8.30 a.m. he saw Abdur Rouf Dewan, Hakim Dewan and deceased were standing with a Motor Cycle at Baliya Bayed road situated on the way to Vawal to Mirzapur and also he found one white Microbus at the right side, wherein 5-7 persons were sitting. Near the aforesaid place there was a decorator shop namely, Sultana Decorator. On the next day he heard that Nayemuddin was missing. He deposed before the police and Magistrate. He proved the statement made before the Magistrate which was marked as Exhibit-2. In his cross examination he admitted that the deceased is the cousin of his wife Hanufa Begum. He further stated in cross examination that there is bus stand at Vowal Mirzapur road, a High School and a big Bazar are situated therein where good numbers of people used to assemble. His house is situated on the other side of Turag River at a considerable distance from Vowal Bazar and he used lo maintain his family by catching fish and selling the same. He further stated that, “myjZvbv †W‡Kv‡iUi GK K‡ÿi GKwU Qvcov| QvcovwUi PZzw`©‡K †Lvjv‡gjv| †mKv‡b GKwU †`vKvb i‡q‡Q| Lvwj Rvqvi `wÿ‡b GKwU eo weµ wdì i‡q‡Q| myjZvbv †W‡Kv‡iU‡ii c~e© w`K w`‡qI Ges cwðg w`K w`‡q Avey mvB` moK w`‡qI eªxK wd‡ì hvIqv hvq| weªK wd‡ì nvRvi nvRvi kÖwgK KvR K‡i| iv¯ÍvwUi c~‡e© ‡h‡q DËi w`‡K GKUz `~‡i eªxK wdì i‡q‡Q| eªxK wdì I myjZvbv †W‡Kv‡iU‡ii gvSKv‡b Av‡iv evox i‡q‡Q, D³ evoxi gvwjKM‡Yi bvg Avgvi Rvbv bvB|” He further stated that he never entered into the Sultana Decorator and he could not tell whether the said decorator shop was open or not on the date of occurrence. When he deposed before police he was accompanied by the informant to the Thana. He attended the Janaja of deceased, when he met with the informant and Sanowar Master and the mother of

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Nayem Uddin and other relations of Nayem Uddin. But he did not disclose the above fact to them. In crossexamination he statedthat “Avwg hv NUbv¯’‡j †`‡LwQ †m K_v Rvbvhvi w`b KvD‡K ejv Avgvi evav wQjbv| Avwg ewj bvB| Rvbvhvi w`b 5/6 Rb cywjk wQj| Rvbvhvq hviv G‡mwQj cywjk Zv‡`i KvD‡K ‡mw`b fq †`Lvq bvB| GjvKvi †jvKRb cywj‡ki mv‡_ K_vevZ©v e‡j‡Q|” He further re-affirmed that he did not tell the aforesaid story to anybody, although he met with many relations of deceased Nayem Uddin. He did not inform the matter to the Member, Dafadar who attended the Janaja of Nayem Uddin. He made statement to the police after burial of deceased and there are serious material contradictions in between deposition made in the court and his statement before the police.

21. P.W. 3 Md. Sanowar Hossain, the full brother of the deceased. He corroborated the P.W. 1 on ma material points as regards previous enmity over the administration of locality and fisheries. He stated stated in his examination-in-chief that on 2.2.1999 about 7.00/7.30 a.m. deceased Nayem Uddin went away from his house by a Motor cycle, but he did not go to his working place or his residential place at Dhaka and on on getteing information he started searching for Nayem Uddin in different hospital and lastly he came to know that the dead body of his brother was lying in the morgue of Dhaka Medical College Hospital. Subsequently he come to know that the deceased was killed inside the Sultana decorator and one of the employee of the Sultana Decorator was arrested who made confessional statement under Section 164 of the Code of Criminal Procedure and admitted the occurrence. One Microbus was following his brother while he was coming by a Motor Cycle. The Motor Cycle belonged to him. In cross examination he staled that Mozammel Hoq is a High ranking police official, who is his uncle. He admitted that he never visited Sultana Decorator. He deposed 1 before the police that after 1 2 months of the occurrence and when he was deposing before the police witness Abdur Rahim. Shahab Uddin, the informant and A. Ali were present. He stated that he

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

told the police that his brother might have been killed by the aforesaid accused persons. He made contradictory statement to the police as regards seeing and hearing that the deceased was killed inside Sultana Decorator or nobody followed by the Microbus while he was going to Dhaka or he did not tell the investigating officer that his brother was found in front of Sultana Decoration or accused Abdul Hakim Dewan, Shamsu Dewan and Rouf Dewan were talking wilh Nayeem Uddin.

22. P.W. 4 Abdur Rahim is the brother-in-law of deceased stated in his examination in chief that on 2.2.1999 at about 7.30/ 7.00 a.m. he came to Mirzapur Bazar in connection with his own wood business and while he was going to his father-in-law's house he heard that deceased came out from his house by a Motor cycle and while he reached at Bus stand he found that the deceased was going by Motor Cycle and on his way back to Bazar he found a Microbus, wherein he found Shamsu Dewan inside the Microbus.

He suspected that the person who were in Microbus might have killed his brother-in-law and brought his dead body at Kabirpur under Savar Police station as there had been enmity in between the accused persons and the deceased. He also told in cross examination that his paternal uncle -in-law Mozammel is high official in the police department. In cross examination he denied the suggestion that witness Abdul Ali was accused in a arson case. He stated that Abdul Ali did not tell him anything. He also did not ask Ali anything.

He denied the suggestion that he did not tell the I/O that he saw Shamsu Dewan. Practically this witness did not prove any occurrence of murder or did not directly implicate anybody in this case.

23. P.W. 5 Md. Hanif Hossain and P.W. 6 Shagor Ali brought new story which are not at all connected with the case of alleged murder of the deceased. They have told that after lapse of 2 years when they were going by the side of some accused persons they told that they have killed Nayeem Uddin and which may happen in the fate of this witness. But the learned

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lawyer who conducted the defence case has cross examined them unnecessarily, violating the norms of cross examination. The evidences of these two P.Ws. will not help the prosecution in any way, even if it is taken in its entirety in favour of the prosecution.

24. P.W. 7 Md. Anowar Hossain, who saw the dead body and police took his signature on a paper stating that they were bringing the dead body and also put his signature on the inquest report, so he is a formal witness. He was also cross examined by the learned Advocate of the defence unnecessarily.

25. P-W. 8 Syed Lokman Ahmed, learned Magistrate, who recorded the statement of some witnesses. He recorded the statement of Ansar Ali. He stated in his examination in-chief that Ansar Ali was sent to him on 4.4.1999 who declined to make any confession but he stated that he could give some information as regards the occurrence and thus lie recorded his statement as a witness, which has been marked as Exhibit-5. In cross examination he stated that the learned Magistrate Mr. Bonomali Bhowmik directed for recording the statement of four witnesses and learned Magistrate Mr. Bonomali Bhowmik also directed for recording the statement of accused Ansar Ali on 4.4.1999, but as Ansar Ali declined to make any confession. Later he recorded his statement on a plain paper not as an accused.

26. P.W. 9 Dr. Md. Belayet Hossain is the Doctor, who held autopsy on the dead body of the deceased. He gave opinion that the death in my opinion was due to asphyxia resulting from strangulation, by ligature in neck which was ante mortem and homicidal in nature.

The postmortem report was marked as Exhibit-8.

27. P.W. 10 Selina Akter, who was the Metropolitan Magistrate. Dhaka at the relevant time, lie recorded the statement of wetness Md. Mayeen Uddin. It appears from the case record that Mayeen Uddin was not examined as witness and as such the evidence o P.W. 10 has no evidentiary value in the eye of law.

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28. P.W. 11 S.M. Kamruzzaman. He stated in his examination-in-chief that on 2.2.1999 he prepared inquest report of dead body with reference to Savar P.S. G.D. No. 89 dated 2.2.1999. The informant identified the dead body in the Dhaka Medical College Hospital.He examined the witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and he arrested accused Abdur Rouf Dewan and Shamsul Alam Dewan on 19.2.1999 and forwarded them to the Magistrate for recording their statement under Section 164 of the Code of Criminal Proealure.He arrested accused Ansar Ali and forwarded to the learned Magistrat for recording his statement under Section 164 of the Code of Criminal Procedure. In cross examination he stated that before lodging the F.I.R. on 17.2.1999 no written information was received by the Saver Police Station. He came to learn that both the deceased Nayeem Uddin and his wife, the informant were employees of police department. In the column of accused of F.I.R. form there is no name of the accused and Kabirpur Burirtek has been mentioned as place of occurrence. He candidly admitted in cross examination that nothing was mentioned in the F.I.R. as regards delay in lodging of the F.I.R. and it is also admitted that there is no mention of the names of any witness in the F.I.R. In the inquest report there were names of as many as 5 witnesses but none of them were examined either by him or in the court. He further admitted in his cross examination that on 17.2.1999 he was appointed as investigating officer of this case and before that he was investigating the case on the basis of G.D. E. No. 89 dated 2.2.1999. He admitted in his cross examination that since 2.2.1999 to 17.2.1999 i.e. before lodging of the F.I.R. several times he met with the wife of the deceased, the informant and he also met with the children’s of the deceased before lodging the F.I.R. After recording F.I.R. he did not examine any witness, although he visited the place of occurrence i.e. Burirtek 5 times, but nobody's statement was recorded albeit he met with Chairman, Dafadar, school teachers and many other inhabitants of nearby

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place of occurrence and as per his sketch map there are many institutions in an around the so-called place of occurrence i.e. Burirtek of Kabirpur. He categorically admitted that he did not see the wearing apparels, spectacles, shoes of the deceased and he never prepared any seizure list either at the place of occurrence or in the medical college hospital during his investigation.

He visited the house of the deceased several times, but he did not record any statement of any witness which he has admitted in his cross examination. He went to Vowal - Mirzapur but he admitted in his cross examination that, ÒAvgvi Z`šÍKv‡j fvIqvj wgR©vcyi evmó¨vÛ Ges fvIqvj wgR©vcyi †_‡K evnv`yicyi n‡q kvóvi evox hvevi moK c‡_i KvBRvjyb ¯‹zj, Rqbvj evRvi, evwjqvevB` eªxR, myjZvbv †W‡Kv‡iUi mn †Kvb ¯’v‡bi gvbwPÎ I m~Px cÖ¯‘Z Kwi bvB| Avgvi Z`šÍKv‡j myjZvbv †W‡Kv‡iUi bvgxq ¯’v‡b ev †jvKv‡j Avwg hvB bvB| myjZvbv †W‡Kv‡iUi †Kv_vq Avgvi Z`‡šÍ Avwg cvB bvB| (underlining is made by me).

Avgvi Z`šÍKv‡j Rq‡`ecyi †PŠiv¯Ív n‡q gvóvi evox w`‡q Qz‡K evnv`yicyi w`‡q fvIqvj wgR©vcyi evRvi ch©šÍ wM‡qwQ wKbv ¯§ib bvB| Ó 29. He further stated that on 3.3.1999 at about 18.25 hours he arrested Ansar Ali from in front of decorator shop of Mazahar of Bahadurpur and after seeing them he did not try to flee away to escape from arrest. He arrested Ansar Ali within jurisdiction of Joydebpur police station but he admitted that he did not make any G.D.E with Joydebpur Police station. He did not record any statement of Ansar Ali under Section 161 of the Code of Criminal Procedure. He denied the suggestion that Ansar Ali was tortured in the police station. He admitted in his cross examination that he did not get any number of Microbus or did not trace any Miciobus.

He candidly admitted in his cross examination that, ÒAvwg †h mv¶x‡`i Revbe›`x †iKW© Kwi Zviv †KDB e‡jb bvB †h, Avmvgx ie †`Iqvb, kvgmy †`Iqvb, RvwKi wgTv, Ry‡qj I Ab¨vb¨iv k¦vliæ× K‡i evw`bxi ¯^vgx wbnZ bvCg EwÏb‡K myjZvbv †W‡Kv‡iU‡i nZ¨v K‡i| D‡jøwLZ ¯^vÿxMY †KDB Revbe›`x cÖ`vbKv‡j Avgvi Kv‡Q e‡jb bvB †h, evw`bxi ¯^vgxi jvk Kweicy‡ii eywoi †U‡Ki KvPv iv¯Ívi cv‡k¦© Avmvgxiv wb‡q †d‡j iv‡L|

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

wbnZ bvCg DwÏb ev Zvi fvB mv‡bvqvi †nv‡m‡bi †Kvb gUi mvB‡K‡ji KvMRcÎ Rã Kwi bvB| ‡gvKÏgv i“Ryi c~‡e© evw`bx mvfvi _vbvq †gvKÏgv iæRy Ki‡Z hvq, wKš‘ mvfvi _vbv †Kvb gvgjv †bq bvB, GB wem‡q Avgvi Rvbv †bB| 17-2-1999 Bs Zvwi‡Li c~‡e© evw`bx Zvi ¯^vgxi g„Zz¨ msµvšÍ †gvKÏgv iæRy Ki‡Z mvfvi hvq wKbv Avgvi Rvbv †bB| Avgvi Rvbv †bB †h, wZwb †gvKÏgv iæRy Ki‡Z wM‡qwQ‡jb wKš‘ mvfvi _vbv KZ©„c¶ †gvKÏgv †bq bvB|Ó 30. PW. 12 Md. Safaruzzaman, Assistant Supcrintendenl oi Police, C.I.D. lastly took up the investigation on 24.02.2001. He perused the case diary and visited the place of occurrence. As per him he located 2 places of occurrence, one is Decorator shop of Bahadurpur where the deceased was killed and another is the place where the dead body of deceased was left by the miscreants and seized alamats including the necessary papers of motor cycle. During his investigation he came to know that there was enmity in between the deceased and accused persons and submitted charge sheet. He added only one witness namely Mayeen Uddin, who was not examined in this case.

31. P.W. 13 Abu Hena Md. Yusuf, Inspector, CID Dhaka took up the investigation on 20.5.1999 and he prepared sketch map and its index and examined witnesses and recorded their statements and visited the place of occurrence as per the statement of Ansar Ali. In cross examination he stated that nothing is mentioned in the statement of Ansar Ali that murder was committed or anybody murdered the deceased. He did not prepare any sketch map of the place of where Nayeem Uddin was taken. He further admitted in cross examination that, ÒAvmvgxMb I wbnZ bvCg Dwχbi g‡a¨ †Kvb we‡iva wQj Zr ¯^c‡ÿ †Kvb `wjj I KvMR cÎ Avwg Rã Kwi bvB|Ó He denied the defence suggestion that Ansar Ali was taken on remand although the court directed him to interrogate Ansar Ali with caution. But he made physical torture on Ansar Ali, as a result the learned Magistrate asked him to show cause by his order dated 3.6.1999.

322

32. On the other hand defence examined one Md. Akbar Ali as defence witness, who tried to say that Abdur Rouf Dewan went to his village for seeking vote as he was a candidate for guardian representative in the School Managing Committee Election. He was cross examined by the prosecution.

33. These are the evidences of both the sides in this case.

34. We have perused the F.I.R. charge sheet, impugned judgment and the sketch map, seizure list and the statement of Ansar Ali recorded under Section 164 of the Code of Criminal Procedure.

35. At first we propose to discuss about the delay in lodging of the F.I.R. The cause of delay in lodging the F.I.R. is not at all explained in the F.I.R. or in the deposition of P.W. 1. Here it may be noted that the informant herself is a police official and married lady and it has already been pointed out that before lodging of the F.I.R. She went to the concerned police station several times and met the investigating officer for several times and admittedly none prevented her to lodge the F.I.R., but alter lapse of about 1 5/ 16 days he lodged the F.I.R. suspecting some persons without making any specific complain or allegation against them. Rather a vague allegation has been made that there was enmity in between the deceased and the accused persons which cannot be treated as a authentic ground for causing such inordinate delay in lodging the F.I.R. It is well settled that in various decisions of our Apex Court that delay in lodging the F.I.R. gives opportunity to the prosecution for making embellishment and false implications. Further the P.W. 11, the investigating officer admitted in cross examination that before lodging of the F.I.R. he carried on investigation on the basis of a G.D. Entry. It is also settled that if any KI.R. is made in course of investigation that F.I.R. is not an F.J.R. at all which can at best be treated as statement of witness under Section 161 of the Code of Criminal Procedure and it is not admissible in evidence.

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

36. Further in this case as per the learned Deputy Attorney General there is no eye witness of the occurrence and it is solely based on circumstantial evidence. The learned Deputy Attorney General referred a decision reported in 16 DLR, 161 regarding last seen. We have perused the aforesaid reported case and found it difficult to accept the submission that the deceased was last seen with the accused persons by witness Nos. 2 and 4. The fact of the reported case and the fact of the present case are quite distinguishable and further the circumstances which the aforesaid two witnesses disclosed in their evidence in this ease do not create any credence that they have seen the deceased with accused persons at about 8.00 am to 8.30 a.m that is accused Rouf Dewan, Hakim Dewan and deceased Naymuddin were standing with a Motorcycle by the side of the Balia Baid Road inasmuch as P.W. 2 staled that he has seen a Microbus which was standing at their right side with 5/7 persons, but nobody could give the number of Microbus or as per P. W. 4 the place is densely populated and there is Bus stand and a big Bazar nearby the place from where he saw his brother-in-law to go away alone by a Motor Cycle which is at a considerable distance from the place he claimed to have seen his brother-in-law and it is not a case that the accused persons have followed him with Microbus and abducted him, so the aforesaid reported case will not help the prosecution at all.

37. The learned Judge of the trial court mainly relied on so-called confessional statement of accused Ansar Ali as basis of conviction.

38. We have perused the statement of Ansar Ali which was marked as Ext. 5. We propose to reproduce his statement for ready reference which is as follows:AvbQvi Avjx Gi †dŠR`vix Kvh©wewa 164 aviv g‡Z Revbe›`xt Avgvi bvgt AvbQvi Avjx, wcZvt jvj kixd Xvjx, MÖvg-Pv›Uv, _vbv-bwoqv, †Rjv-kwiqZcyi, eZ©gv‡b evnv`yi cyi, _vbvt Rq‡`ecyi, †Rjvt MvwRcyi, eqmt 50|

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Avwg evnv`yicyi MÖv‡g †gvRnviæj n‡Ki RvqMvq _vwK Ges †W‡Kv‡iU‡ii †`vKvb PvjvB| gvwjKB †W‡Kv‡iUi w`‡q‡Q †mUvi Avq w`‡q Rxeb avib Kwi| gvm `yB GK Av‡Mi NUbv w`b Abyt 10.00 Uvi w`‡K 5/6 Rb gvbyl fwZ© mv`v gvB‡µvevm Avgvi †W‡Kv‡iU‡ii †`vK‡bi mvg‡b G‡m `vovq| Zv‡`i g‡a¨ K‡qKRb wKfv‡e Xz‡K e‡j kvUviwU †d‡j †`| Avwg f‡q kvUvi †d‡j †`B Ges evwn‡i `vovBqv _vwK| wfZ‡i Xz‡K GKRb‡K gviai K‡i| Avwg wPrKvi ïwb| 15/20 wgt Zviv wQj, Zviv Avevi wPrKvi w`‡q kvUvi Lyj‡Z e‡j| evwn‡i Zv‡`i Av‡iKRb wQj †m ZLb kvUvi †Lv‡j †`q Avwg mvnvh¨ Kwi| GKRb †jvK‡K Zviv aivawi K‡i gvB‡µv‡Z DVvq †es Mvox PvjvBqv P‡j hvq| Avwg Avt iDd‡K wPwb| Ab¨ KvD‡K wPwb bv| †`v‡b NUbvi K‡qKw`b Av‡M Avi‡Q GB myev‡` wPwb| Zvici Zviv mevB P‡j hvq| f‡q Avwg KvD‡K NUbv ewjwb| GB Avgvi e³e¨| 39. In the aforesaid statement Ansar Ali neither implicated himself in the commission of crime nor he implicated himsell as abettor of the offence nor he stated that the deceased was killed inside the so-called decorator. Further it has been clearly stated by the learned Magistrate that Ansar Ali declined to make a confession under Section 164 of the Code of Criminal Procedure although he was forwarded for doing so, but he agreed to give some information about the occurrence and his statement was recorded on a white paper like other witnesses who made statement before him on the same date. It is curious to us that how the investigating officer or the prosecution treated this Ansar Ali as accused and how implicated him in the charge sheet, as accused and why the Magistrate considered him as witness? On the other hand the learned Magistrate also forgotten that he was asked to record his statement as an accused by another Magistrate, but he declined to make any confessional statement. It was the duty of the Magistrate to send him to custody without recording his statement as a witness.

He has ex-ceded his own jurisdiction and he has played the part of the police officer in recording the statement for which he was not instructed. In this regard the learned Judge of Tribunal referred to a decision of the case of Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC). But just going through the head note, the learned Judge arrived

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Mahmudur Rahman Nazlu Vs. The State and another (M. Enayetur Rahim, J.)

324

at a decision that the aforesaid decision is applicable in this case, forgetting that in the body of the judgment it has been held that if the statement recorded following section 164 and 364 of the Code of Criminal Procedure then only the same is admissible in evidence and as such this so-called statement of Ansar Ali is not admissible in evidence inasmuch as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness and as such is not admissible in evidence, as suggested in the aforesaid case.

belated charge sheet under Section 302/201/34 of the Penal Code and the learned Judge of the Druto Bichar Tribunal conducted the trial and arrived at a decision to inflict death sentence to one of the accused persons without proper appreciation of evidence on record in its true perspective.

40. He has referred another decision which is related to Civil Case and thus it has no manner of application in the present case.

46. In this connection reference may be made to the case of the Sate Vs. Paran Chandro Baroi: Reported in 2 B.C.R. -292: Relevant Para-12-14: Where it has been held:

41. The aforesaid act is not expected from a responsible Judge of Druto Bichar Tribunal. He has wrongly amalgamated the terms of admission and confession. Where the question is unsettled,whether the statement of Ansar Ali was recorded as a witness or an accused, even then the learned Judge based his judgment on the so-called statement of Ansar Ali treating it as confession of an accused.

42. We are constrained to hold that the learned Judge having power to inflict even death sentence upon a person should have sound knowledge in law.

43. It may be mentioned here that it has been well settled by the Apex Courts of this Sub-Continent that an accused can not be convicted on the sole basis of a confession made by co-accused unless it has got corroboration from independent source. In this ease the so-called statement of Ansar Ali is not confession at all, rather it is a statement of witness as admitted by recording Magistrate but he was shown in the column of accused as a result the convict accused persons did not get any scope to cross-examine him.

44. We have given our anxious thought over thewhole prosecution case, but we are surprised to note that the police personnel’s have conducted a perfunctory investigation and submitted a

45. Belated examination of witness: The delayed examination of witnesses by the Investigating officer afforded an opportunity of concoction and it makes testimony of the witness unreliable .

"' In this connection the power given to the Police officer under Section 175(1) of the Code of Criminal Procedure cannot be over looked. No reason has been given by the prosecution for the delayed examination of these two witnesses. They were examined by the I.O. after 4 days of the occurrence. The delay in examining them has not been explained. The delay in examining P.Ws. 4 and 5 in the circumstance of the case appears to be unjustified. In the facts and circumstances of the case I am of the opinion that it would not be safe to rely or the testimony of P.Ws. 4 and 5.

47. Further reference may be made to 25 BCR (HC)—216: Kazi Mahbubuddin Ahamed Vs. the State.

Held: "Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording statements when memory of witness remain fresh as human memory is always fleeting. Benefit of doubt arising out of the unusual delay of examining and noting down statements would got to accused."

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Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

48. On perusal of the ease Diary it appears that the Investigating Officers examined the witnesses on the dates mentioned against their names: A. Rashim -------- examined on 15.3.1999 Osman Gani

"

" on 15.3.1999

Abdur Rob

"

" ------ 29.7.1999

Moksed Ali

"

"—-29.7.1999

Md. Mainuddin "

"—12.9.2002

Sunwar Hossain "

"-—29.12.2001

SagorHossain

"

"— 11.8.2002

Anwar Hossain

..... — 8.10.2002

MunnuMia

"

"-—8.9.2002

49. The above chart shows that the prosecution witnesses were examined at a belated stage without any explanation and and as result their testimony became untrustworthy and unreliable. Therefore, no conviction can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of evidence.

50. We off and on hear through Media that police by exercising their prudence and after facing long trouble used to catch the criminals, but they used to get bail, even acquittal from this court and the general people of this country has been loosing their confidence upon the judiciary believing the aforesaid statements, specially made by the police department. But considering the present case we arc surprised to note that one of the police personnel was murdered and another police personnel is the informant in this case and at the same time a High Ranking Police Officer is a relation of the deceased and a perfunctory investigation was conducted consuming long time and changing Investigating Officers one after another, involved the accused persons without having any

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materials in the whole case records, but arranged to get the accused person convicted and one of them was sentenced to death. It is really shocking to us that the police officers who diverted the case by fabricating the facts for facilitating awarding of conviction towards the so-called enemies of a police officials are kept above law!

51. We also find that charge does not contain any essential materials to give proper notice to the accused persons as to what offence they have committed and thus it has caused prejudice to them.

52. We have given our anxious thought over the whole matters and hold that if we allow the reference and allow the execution of the death penalty, it will be treated as a "judicial murder". So we are not inclined to commit such murder sitting on the high altar of judiciary.

53. In the result, the reference is rejected and the criminal appeals including the jail appeal are allowed.

54. Let an advance order be sent to the concerned court and the concerned jail authority to release the condemned prisoner forthwith, if not wanted in connection with any other case. Other convict appellants be discharged from their bail bond.

55.

Send down lower courts record forthwith.

Let a copy of this judgment be forwarded to the Inspector General of Police with an expectation that he will look into the matter so that general people do not suffer, as those have been done in the present case, making favor to a police family.

Ed.

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

315

HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Md. Shamsul Huda, J. Mr. Md. Abu Bakar Siddiuqe, J. Judgment 27.01.2011

}

}

The State . . .Appellant VS Md. Abdur Rouf Dewan @ Robu ...Condemner Prisoner and others Respondents.

Evidence Act (I of 1872) Section 3 It is well settled that enmity cuts both the ways i.e. there is chance of commission of offence by the accused persons and similarly there is chance of false implication in any criminal case.. .....(16) Code of Criminal Procedure (V of 1898) Sections 154 and 161 Neither the delay of 15/16 days has been explained in the FIR nor in the deposition of PW.1 when the informant herself is a police official and before lodging the FIR she went to the concerned police station and met with the Investigating Officer for several times and none prevented her from lodging the FIR. The delay in lodging the FIR gives opportunity to the prosecution for making embellishment and false implication. Before lodging of the FIR the police started investigation on the; basis of a G.D entry and such FIR is not an FIR which can at best be treated as statement of witness under Section 161 of the Code. ...(35) Evidence Act (I of 1872) Section 8 Last seen – The PWs. 2 and 4 have disclosed in their evidence that they have seen the deceased with the accused persons, that is, Rouf Dewan and Hakim Dewan were standing with a Motorcycle by the side of the Balia Baid Road and such evidence does not create any credence as it is not their case that the accused persons have followed him with Microbus and abducted him. ...(36) Code of Criminal Procedure (V of 1898) Sections 164 and 364 In the statement of Ansar Ali neither he implicated himself in the commission of offence nor an abettor when the learned Magistrate clearly stated that Ansar Ali declined to make a *Death Reference No. 164 of 2005 with Criminal Appeal No. 4887 of 2005, Criminal Appeal No. 4909 of 2005, Criminal Appeal No. 4999 of 2005 and Jail Appeal No. 1274 of 2005.

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confession under section 164; CrP.C and it is not understood how the I.O or the prosecution treated him as accused and how was he implicated in the charge sheet as accused and how the Magistrate considered him as witness. Under such circumstance, it was the duty of the Magistrate to send him to custody without recording his statement as a witness. The Magistrate exceeded his jurisdiction and played the role of the police officer in recording the statement for which he was not instructed . The statement of Ansar Ali is not admissible in evidence as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness. The learned judge acted illegality basing his judgment on the so called statement of Ansar Ali treating it as confession of an accused. ....(39 to 43) Code of Criminal Procedure (V of 1898) Sections 161 The delayed examination of witnesses by the Investigating Officer afforded an opportunity of concoction and it makes testimony of the witness unreliable. The chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as a result their testimony became untrustworthy and unreliable.

Therefore, no conviction can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of no evidence. ....(45 to 49) Abdul Latif alias Budu vs. The State, 44 DLR492; Akhtar Hossain alias Babul Akhtar Vs. State, 44 D.L.R. 83; State Vs. Paran Chandra Baroi, 2 BCR-292,16 DLR 161; Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC); Kazi Mahbubuddin Ahamed Vs. the State, 25 BCR (HC) 216 ref.

Mr. Abdul Baset Majumder ... For the appellant Md. Zakirul Islam alias Jewel

Mr. Munsurul Huqe Chowdhury and Mr. Fazlul Haq Khan Farid, Advocates ... For the Condemned Prisoner Mr. Md. Ruhul Amin Bhuiyan, Advocate ... For the appellant. Md. Ansar Ali Mr. K.M. Zahid Sarwar, DA.G with Mr. Md. Zakir Hossain Ripon, A.A..G. and Mr. Monzu Naznin (Rosy), A.A.G. .... For the State.

Mr. S.M. Shafiqul Islam

... For the Informant.

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

Judgment MD. SHAMSUL HUDA J:

This reference under Section 374 of the Code of Criminal Procedure, 1898 has been made by the learned Judge, Druta Bichar Tribunal No. 1, Dhaka in respect of condemned prisoner Md. Abdur Rouf Dewyan @ Robu Vide ¯§viK b¤^i:`ª“Z: we: Uªv: 1./ †dŠ: - 192 ZvwiL 10-1105Bs for confirmation of the death sentence passed by him in Druta Bichar Tribunal Case No. 8 of 2005 arising out of Savar Police Station Case No. 48(2)99 corresponding to G.R. No. 168 of 1999 convicting all the accused appellants under Section 302/34 of the Penal Code and sentencing appellant No. 1 to suffer death by hanging and sentencing each of the rest appellants to suffer rigorous imprisonment for life and also to pay a fine of tk. 50,000/- each in default to suffer rigorous imprisonment for 2 years more and also convicting the appellants under Section 201 of the Penal Code and sentenced them to suffer rigorous imprisonment for 7 years and to pay a fine of Tk. 10,000/- each in default to suffer rigorous imprisonment for a period of one year more. On the other hand Jail Appeal No. 1274 of 2005 having been preferred by the condemned prisoner and regular Criminal Appeal No. 4909of 2005 has been preferred by the condemned prisoner along with Appellant Nos. 2) Md. Samsul Alam Samsu and 3) Abdul Hakim Dewyan and Criminal Appeal No. 4887 of 2005 has been preferred by appellant Md. Ansar Ali and Criminal Appeal No. 4999 of 2005 has been preferred by appellant Md. Zakirul Islam alias Jewel against the judgment and order of conviction and sentence dated 20.10.2005.

2.

Criminal Appeal No. 4887 of 2005, Criminal Appeal No. 4909 of 2005, Criminal Appeal No. 4999 of 2005 have been filed by all the appellants and Jail Appeal No. 1274 of 2005 has been preferred by the condemned prisoner, which were taken together and heard along with the death reference.

3.

The prosecution case, in short, as gathered from the record that one Most. Noor Jahan Begum,

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Head Mohrar, D.C. (North Police) Office, Dhaka lodged a first information report on 17.2.1999 at about 12.50 hours alleging inter alia that on 2.2.1999 her husband Late Nayem Uddin, Office Assistant.

Police Head Quarter, D.M.P, Dhaka went to his native village after taking part in the Monajat of the Bishwa Estama. His native home is situated at village Barachalia under Kaliakoir Police station. DistrictGazipur. On 2.2.1999 he started from his home towards his office in the morning, but he did not return home till 3.2.1999 as a result she sent her son to her native village in search of her husband and on that day at about 1.30 hours her son and one sister-inlaw and one Sanowar Hossain informed her over telephone that he husband went on 2.2.1999 at 7 a.m. by a Motor cycle towards his working place. On getting this information she started searching her husband. At about 16 hours she got an information from DMP that the dead body of her husband is lying in the morgue of Dhaka Medical College Hospital.

The dead body of her husband was sent by Savar Police Station to Dhaka Medical College Hospital and on search from Savar Police Station she came to know that her husband was killed and with an intention to conceal his dead body somebody have thrown the dead body at the side of Burirtake Kabirpur kancha road. She suspected that co-villager Abdur Rouf Dewan, Hakim Dewan, Samsu Dewan all sons of Sobhan Dcwan and Abdul Quddus, all of village- Barachala might have killed her husband as they had long standing enmity with her husband. In the last year there was uproar in between them over a Fishery Firm and enmity has been increased and as a result of which those persons might have killed her husband.

4.

After recording the First Information Report on 17.02.1999 police investigated the case and submitted charge sheet No. 50 dated 23.2.2003 implicating Md. Abdur Rouf Dewan @ Robu, Md. Samsul Alam @ Samsul, Abdul Hakim Dewyan, Ansar Ali and Md. Zakirul Islam alias Jewel but excluded Md. A. Sobhan. Aynal Kha, Zakir Hossain and A. Quddus from the change sheet.

5.

After observing all legal formalities at first the case was transmitted to the learned Additional Sessions Judge, Dhaka, who framed charge against

317

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

the aforesaid accused persons under Section 302/201/34 of the Penal Code. Thereafter it was transferred to the Druto Bichar Tribunal No. 1, Dhaka for trial.

6.

It may be mentioned here that before lodging the F.I.R. one U.D. case being No. 6 dated 2.2.1999 was started on the information of S.I. Md. Kamruzzaman.

7.

Mr. K.M. Zahid Sarwar, learned Deputy Attorney General while placing the reference before us he thoroughly read over the F.I.R., charge sheet, charge, evidence on record and the impugned judgment and submits that although in this case there is no eye witness of murder, but there is strong circumstantial evidence that the deceased while coming to Dhaka by a Motor Cycle he was seen by Md. Abdul Ali and he saw the deceased standing on the road of Balia Bayed with Rouf Dewan and Hakim Dewan and P.W. 4 Abdur Rahim saw the deceased going towards Dhaka by a Motor Cycle and he saw a Microbus wherein he could identify one Shamsu Dewan inside the Microbus and subsequently during investigation one accused Ansar Ali named a confessional statement. stating that on the fateful day some persons brought, the deceased in a Microbus and pushed him into Sultana Decorator wherein he is a Caretaker, and they shut down the shutter of the Decorator shop and he heard sound of fighting inside the Sultana Decorator while he was standing outside the said shop and after some time one of those persons, who was standing outside opened the shutter and Ansar Ali helped him to open the shutter and they carried the person by Microbus and subsequently the dead body was recovered.

8.

In Postmortem report it appears that the deceased was killed by throat ling. Ansar Ali could identify Abdur Rouf Dewan. The learned Deputy Attorney General strenuously submits that in this type of case some times the independent witness do not come forward to depose against the accused persons with whom deceased had long standing enmity and as a result the witness who are related to deceased have deposed in this case and for the reason of relationship their testimony cannot be disbelieved.

The circumstances which has been proved by the

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prosecution witnesses, the case is well proved and the learned Judge of the Tribunal rightly convicted the accused persons.

9.

Mr. Abdul Baset Majumder, Mr. Minsurul Huq Chowdhury and Mr. Fazlul Haq Khan Farid appeared for the appellants in different appeals.

10. Mr. Fazlul Haq Khan Farid, learned Advocate argued on behalf of the appellants except Ansar Ali. Md. Ruhul Amin Bhuiyan, the learned Advocate advanced his argument on behalf of appellant Md. Zakirul Islam alias Jewel. Their main argument is that total allegations against all the accused persons is nothing but a cock and bull story. Learned Advocate Mr. Farid at first drawn our attention to the F.I.R. and submits that the alleged occurrence took place on 2.2.1999 and the F.J.R. was lodged on 17.2.1999. The informant herself is a responsible official of the police department and at the same time the deceased was also an official of police department and there is no earthly reason for causing delay in lodging the F.J.R. which was lodged after such a long time. In this connection the learned Advocate has drawn our attention to the evidence of the first investigating officer and submits that the P.W. 1 admitted that before lodging of the F.I.R. the informant several times met the investigating officer and he conducted investigation on the basis of a G.D. Entry, but nobody prevented her to lodge the F.I.R. at an earliest possible time. The cause of delay is not at all explained in the F.I.R. 11. In this regard reference may be made to 44 DLR-492, Abdul Latif alias Budu vs. The State: Held: "The court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was caused for manipulation of the prosecution story."

12. Further, admittedly the so called F.I.R was lodged during investigation having been conducted by the police with reference to Saver P.S.G.D.E No. 89 dated 02.02.1999 and as such the F.I.R. which has been exhibited in the court is not admissible in evidence in as much as the same is nothing but a

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

statement of witness being recorded under section 161 of the Code of Criminal Procedure.

13. In this regard reference may be made to 44 D.L.R. 83, the case of Akhtar Hossain alias Babul Akhtar Vs. State.

Held: "The document exhibited as F.I.R. in the case could not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was GD entry thereon but the same have not been produced." Further reference may be made to the case of the State Vs. Paran Chandra Baroi. Reported in 2 BCR-292: Held: "It is now well settled that the first Information Report recorded after commencement of investigation is a statement of a person before the police and is inadmissible in evidence. Therefore, there is no First Information Report in the present case, the same being inadmissible.”

14. In view of the aforesaid reported decisions we hold that in this case the so-called belated F.I.R. is inadmissible in evidence and since the earlier G.D.E. has not been produced before the trial court the case has no leg to stand.

15. Learned Advocates for the defence strenuously argued that the several investigating officers investi-gated the case one after another and lastly the C.I.D falsely implicated the convict accused persons being influenced by the informant as she herself and her deceased husband were officials of police department and one of their relation was high ranking police officer at the relevant period.

16. As regards previous enmity of deceased with the F.I.R. named accused persons, particularly the appellants has not been proved at all and if for argument sake it is admitted that there was enmity in between them but h 17. On the other hand the learned Judge of the Tribunal without applying his judicial mind convicted the accused persons and he has passed death sentence in respect of condemned prisoner in a

318

case which is practically a case of no evidence and as such they humbly prayed to reject the reference and to allow the appeals.

18.

Now let us discuss the evidence on record.

19. P.W. 1 corroborated her F.I.R. story and proved the same which was marked as exhibit- 1.

She did not give any explanation as to cause of delay in lodging the F.I.R. before the court in her deposition. In cross examination she stated that the dead body of her husband was buried on 4.2.1999 at his village home where she met with her brother -inlaw Abdur Rahim but she was not told by Abdur Rahim that he saw the deceased before his death. She further stated that she went to Thana after 3 days of burial of her husband but she lodged the F.I.R. on 19.2.1999 (although F.I.R. was lodged on 17.2.1999) as appeared from the case record. She denied the suggestion that the convict accused appellants are not involved with the commission of murder of her husband. In fact she could not prove the occurrence of murder of her husband.

20. P.W. 2 Md. Abdul Ali stated in his examination in-chief that on 2.2.1999 at about 8.00/ 8.30 a.m. he saw Abdur Rouf Dewan, Hakim Dewan and deceased were standing with a Motor Cycle at Baliya Bayed road situated on the way to Vawal to Mirzapur and also he found one white Microbus at the right side, wherein 5-7 persons were sitting. Near the aforesaid place there was a decorator shop namely, Sultana Decorator. On the next day he heard that Nayemuddin was missing. He deposed before the police and Magistrate. He proved the statement made before the Magistrate which was marked as Exhibit-2.

In his cross examination he admitted that the deceased is the cousin of his wife Hanufa Begum. He further stated in cross examination that there is bus stand at Vowal Mirzapur road, a High School and a big Bazar are situated therein where good numbers of people used to assemble. His house is situated on the other side of Turag River at a considerable distance from Vowal Bazar and he used lo maintain his family by catching fish and selling the same. He further stated that, “myjZvbv †W‡Kv‡iUi GK K‡ÿi GKwU Qvcov| QvcovwUi PZzw`©‡K †Lvjv‡gjv|

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†mKv‡b GKwU †`vKvb i‡q‡Q| Lvwj Rvqvi `wÿ‡b GKwU eo weµ wdì i‡q‡Q| myjZvbv †W‡Kv‡iU‡ii c~e© w`K w`‡qI Ges cwðg w`K w`‡q Avey mvB` moK w`‡qI eªxK wd‡ì hvIqv hvq| weªK wd‡ì nvRvi nvRvi kÖwgK KvR K‡i| iv¯ÍvwUi c~‡e© ‡h‡q DËi w`‡K GKUz `~‡i eªxK wdì i‡q‡Q| eªxK wdì I myjZvbv †W‡Kv‡iU‡ii gvSKv‡b Av‡iv evox i‡q‡Q, D³ evoxi gvwjKM‡Yi bvg Avgvi Rvbv bvB|” He further stated that he never entered into the Sultana Decorator and he could not tell whether the said decorator shop was open or not on the date of occurrence. When he deposed before police he was accompanied by the informant to the Thana. He attended the Janaja of deceased, when he met with the informant and Sanowar Master and the mother of Nayem Uddin and other relations of Nayem Uddin. But he did not disclose the above fact to them. In cross-examination he stated that “Avwg hv NUbv¯’‡j †`‡LwQ †m K_v Rvbvhvi w`b KvD‡K ejv Avgvi evav wQjbv| Avwg ewj bvB| Rvbvhvi w`b 5/6 Rb cywjk wQj| Rvbvhvq hviv G‡mwQj cywjk Zv‡`i KvD‡K ‡mw`b fq †`Lvq bvB| GjvKvi †jvKRb cywj‡ki mv‡_ K_vevZ©v e‡j‡Q|” He further reaffirmed that he did not tell the aforesaid story to anybody, although he met with many relations of deceased Nayem Uddin. He did not inform the matter to the Member, Dafadar who attended the Janaja of Nayem Uddin. He made statement to the police after burial of deceased and there are serious material contradictions in between deposition made in the court and his statement before the police.

21. P.W. 3 Md. Sanowar Hossain, the full brother of the deceased. He corroborated the P.W. 1 on ma material points as regards previous enmity over the administration of locality and fisheries. He stated in his examination-in-chief that on 2.2.1999 about 7.00/7.30 a.m. deceased Nayem Uddin went away from his house by a Motor cycle, but he did not go to his working place or his residential place at Dhaka and on getting information he started searching for Nayem Uddin in different hospital and lastly he came to know that the dead body of his brother was lying in the morgue of Dhaka Medical College Hospital.

Subsequently he come to know that the deceased was killed inside the Sultana decorator and one of the employee of the Sultana Decorator was arrested who made confessional statement under Section 164 of

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the Code of Criminal Procedure and admitted the occurrence. One Microbus was following his brother while he was coming by a Motor Cycle. The Motor Cycle belonged to him. In cross examination he staled that Mozammel Hoq is a High ranking police official, who is his uncle. He admitted that he never visited Sultana Decorator. He deposed before the police that after 112 months of the occurrence and when he was deposing before the police witness Abdur Rahim. Shahab Uddin, the informant and A. Ali were present. He stated that he told the police that his brother might have been killed by the aforesaid accused persons. He made contradictory statement to the police as regards seeing and hearing that the deceased was killed inside Sultana Decorator or nobody followed by the Microbus while he was going to Dhaka or he did not tell the investigating officer that his brother was found in front of Sultana Decoration or accused Abdul Hakim Dewan, Shamsu Dewan and Rouf Dewan were talking wilh Nayeem Uddin.

22. P.W. 4 Abdur Rahim is the brother-in-law of deceased stated in his examination in chief that on 2.2.1999 at about 7.30/ 7.00 a.m. he came to Mirzapur Bazar in connection with his own wood business and while he was going to his father-inlaw's house he heard that deceased came out from his house by a Motor cycle and while he reached at Bus stand he found that the deceased was going by Motor Cycle and on his way back to Bazar he found a Microbus, wherein he found Shamsu Dewan inside the Microbus. He suspected that the person who were in Microbus might have killed his brother-in-law and brought his dead body at Kabirpur under Savar Police station as there had been enmity in between the accused persons and the deceased. He also told in cross examination that his paternal uncle-in-law Mozammel is high official in the police department.

In cross examination he denied the suggestion that witness Abdul Ali was accused in a arson case. He stated that Abdul Ali did not tell him anything. He also did not ask Ali anything. He denied the suggestion that he did not tell the I/O that he saw Shamsu Dewan. Practically this witness did not prove any occurrence of murder or did not directly implicate anybody in this case.

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

23. P.W. 5 Md. Hanif Hossain and P.W. 6 Shagor Ali brought new story which are not at all connected with the case of alleged murder of the deceased.

They have told that after lapse of 2 years when they were going by the side of some accused persons they told that they have killed Nayeem Uddin and which may happen in the fate of this witness. But the learned lawyer who conducted the defence case has cross examined them unnecessarily, violating the norms of cross examination. The evidences of these two P.Ws. will not help the prosecution in any way, even if it is taken in its entirety in favour of the prosecution.

24. P.W. 7 Md. Anowar Hossain, who saw the dead body and police took his signature on a paper stating that they were bringing the dead body and also put his signature on the inquest report, so he is a formal witness. He was also cross examined by the learned Advocate of the defence unnecessarily.

25. P-W. 8 Syed Lokman Ahmed, learned Magistrate, who recorded the statement of some witnesses. He recorded the statement of Ansar Ali. He stated in his examination in-chief that Ansar Ali was sent to him on 4.4.1999 who declined to make any confession but he stated that he could give some information as regards the occurrence and thus lie recorded his statement as a witness, which has been marked as Exhibit-5. In cross examination he stated that the learned Magistrate Mr. Bonomali Bhowmik directed for recording the statement of four witnesses and learned Magistrate Mr. Bonomali Bhowmik also directed for recording the statement of accused Ansar Ali on 4.4.1999, but as Ansar Ali declined to make any confession. Later he recorded his statement on a plain paper not as an accused.

26. P.W. 9 Dr. Md. Belayet Hossain is the Doctor, who held autopsy on the dead body of the deceased.

He gave opinion that the death in my opinion was due to asphyxia resulting from strangulation, by ligature in neck which was ante mortem and homicidal in nature. The postmortem report was marked as Exhibit-8.

27. P.W. 10 Selina Akter, who was the Metropolitan Magistrate. Dhaka at the relevant time, lie

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recorded the statement of wetness Md. Mayeen Uddin. It appears from the case record that Mayeen Uddin was not examined as witness and as such the evidence No P.W. 10 has no evidentiary value in the eye of law.

28. P.W. 11 S.M. Kamruzzaman. He stated in his examination-in-chief that on 2.2.1999 he prepared inquest report of dead body with reference to Savar P.S. G.D. No. 89 dated 2.2.1999. The informant identified the dead body in the Dhaka Medical College Hospital.He examined the witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and he arrested accused Abdur Rouf Dewan and Shamsul Alam Dewan on 19.2.1999 and forwarded them to the Magistrate for recording their statement under Section 164 of the Code of Criminal Proealure.He arrested accused Ansar Ali and forwarded to the learned Magistrat for recording his statement under Section 164 of the Code of Criminal Procedure. In cross examination he stated that before lodging the F.I.R. on 17.2.1999 no written information was received by the Saver Police Station. He came to learn that both the deceased Nayeem Uddin and his wife, the informant were employees of police department. In the column of accused of F.I.R. form there is no name of the accused and Kabirpur Burirtek has been mentioned as place of occurrence. He candidly admitted in cross examination that nothing was mentioned in the F.I.R. as regards delay in lodging of the F.I.R. and it is also admitted that there is no mention of the names of any witness in the F.I.R. In the inquest report there were names of as many as 5 witnesses but none of them were examined either by him or in the court. He further admitted in his cross examination that on 17.2.1999 he was appointed as investigating officer of this case and before that he was investigating the case on the basis of G.D. E. No. 89 dated 2.2.1999. He admitted in his cross examination that since 2.2.1999 to 17.2.1999 i.e. before lodging of the F.I.R. several times he met with the wife of the deceased, the informant and he also met with the children’s of the deceased before lodging the F.I.R. After recording F.I.R. he did not examine any witness, although he visited the place of

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

occurrence i.e. Burirtek 5 times, but nobody's statement was recorded albeit he met with Chairman, Dafadar, school teachers and many other inhabitants of nearby place of occurrence and as per his sketch map there are many institutions in an around the socalled place of occurrence i.e. Burirtek of Kabirpur.

He categorically admitted that he did not see the wearing apparels, spectacles, shoes of the deceased and he never prepared any seizure list either at the place of occurrence or in the medical college hospital during his investigation. He visited the house of the deceased several times, but he did not record any statement of any witness which he has admitted in his cross examination. He went to Vowal - Mirzapur but he admitted in his cross examination that, ÒAvgvi Z`šÍKv‡j fvIqvj wgR©vcyi evmó¨vÛ Ges fvIqvj wgR©vcyi †_‡K evnv`yicyi n‡q kvóvi evox hvevi moK c‡_i KvBRvjyb ¯‹zj, Rqbvj evRvi, evwjqvevB` eªxR, myjZvbv †W‡Kv‡iUi mn †Kvb ¯’v‡bi gvbwPÎ I m~Px cÖ¯‘Z Kwi bvB| Avgvi Z`šÍKv‡j myjZvbv †W‡Kv‡iUi bvgxq ¯’v‡b ev †jvKv‡j Avwg hvB bvB| myjZvbv †W‡Kv‡iUi †Kv_vq Avgvi Z`‡šÍ Avwg cvB bvB| (underlining is made by me).

Avgvi Z`šÍKv‡j Rq‡`ecyi †PŠiv¯Ív n‡q gvóvi evox w`‡q Qz‡K evnv`yicyi w`‡q fvIqvj wgR©vcyi evRvi ch©šÍ wM‡qwQ wKbv ¯§ib bvB| Ó 29. He further stated that on 3.3.1999 at about 18.25 hours he arrested Ansar Ali from in front of decorator shop of Mazahar of Bahadurpur and after seeing them he did not try to flee away to escape from arrest. He arrested Ansar Ali within jurisdiction of Joydebpur police station but he admitted that he did not make any G.D.E with Joydebpur Police station. He did not record any statement of Ansar Ali under Section 161 of the Code of Criminal Procedure. He denied the suggestion that Ansar Ali was tortured in the police station. He admitted in his cross examination that he did not get any number of Microbus or did not trace any Microbus. He candidly admitted in his cross examination that, ÒAvwg †h mv¶x‡`i Revbe›`x †iKW© Kwi Zviv †KDB e‡jb bvB †h, Avmvgx ie †`Iqvb, kvgmy †`Iqvb, RvwKi wgTv, Ry‡qj I Ab¨vb¨iv k¦vliæ× K‡i evw`bxi ¯^vgx wbnZ bvCg EwÏb‡K myjZvbv †W‡Kv‡iU‡i nZ¨v K‡i| D‡jøwLZ ¯^vÿxMY †KDB Revbe›`x cÖ`vbKv‡j Avgvi Kv‡Q e‡jb bvB †h, evw`bxi

I LNJ (2012)

¯^vgxi jvk Kweicy‡ii eywoi †U‡Ki KvPv iv¯Ívi cv‡k¦© Avmvgxiv wb‡q †d‡j iv‡L| wbnZ bvCg DwÏb ev Zvi fvB mv‡bvqvi †nv‡m‡bi †Kvb gUi mvB‡K‡ji KvMRcÎ Rã Kwi bvB| ‡gvKÏgv i“Ryi c~‡e© evw`bx mvfvi _vbvq †gvKÏgv iæRy Ki‡Z hvq, wKš‘ mvfvi _vbv †Kvb gvgjv †bq bvB, GB wem‡q Avgvi Rvbv †bB| 172-1999 Bs Zvwi‡Li c~‡e© evw`bx Zvi ¯^vgxi g„Zz¨ msµvš— †gvKÏgv i“Ry Ki‡Z mvfvi hvq wKbv Avgvi Rvbv †bB| Avgvi Rvbv †bB †h, wZwb †gvKÏgv iæRy Ki‡Z wM‡qwQ‡jb wKš‘ mvfvi _vbv KZ©„c¶ †gvKÏgv †bq bvB|Ó 30. PW. 12 Md. Safaruzzaman, Assistant Superintendent of Police, C.I.D. lastly took up the investigation on 24.02.2001. He perused the case diary and visited the place of occurrence. As per him he located 2 places of occurrence, one is Decorator shop of Bahadurpur where the deceased was killed and another is the place where the dead body of deceased was left by the miscreants and seized alamats including the necessary papers of motor cycle.

During his investigation he came to know that there was enmity in between the deceased and accused persons and submitted charge sheet. He added only one witness namely Mayeen Uddin, who was not examined in this case.

31. P.W. 13 Abu Hena Md. Yusuf, Inspector, CID Dhaka took up the investigation on 20.5.1999 and he prepared sketch map and its index and examined witnesses and recorded their statements and visited the place of occurrence as per the statement of Ansar Ali. In cross examination he stated that nothing is mentioned in the statement of Ansar Ali that murder was committed or anybody murdered the deceased.

He did not prepare any sketch map of the place of where Nayeem Uddin was taken. He further admitted in cross examination that, ÒAvmvgxMb I wbnZ bvCg Dwχbi g‡a¨ †Kvb we‡iva wQj Zr ¯^c‡ÿ †Kvb `wjj I KvMR cÎ Avwg Rã Kwi bvB|Ó He denied the defence suggestion that Ansar Ali was taken on remand although the court directed him to interrogate Ansar Ali with caution. But he made physical torture on Ansar Ali, as a result the learned

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

Magistrate asked him to show cause by his order dated 3.6.1999.

32. On the other hand defence examined one Md. Akbar Ali as defence witness, who tried to say that Abdur Rouf Dewan went to his village for seeking vote as he was a candidate for guardian representative in the School Managing Committee Election.

He was cross examined by the prosecution.

33. These are the evidences of both the sides in this case.

34. We have perused the F.I.R. charge sheet, impugned judgment and the sketch map, seizure list and the statement of Ansar Ali recorded under Section 164 of the Code of Criminal Procedure.

35. At first we propose to discuss about the delay in lodging of the F.I.R. The cause of delay in lodging the F.I.R. is not at all explained in the F.I.R. or in the deposition of P.W. 1. Here it may be noted that the informant herself is a police official and married lady and it has already been pointed out that before lodging of the F.I.R. She went to the concerned police station several times and met the investigating officer for several times and admittedly none prevented her to lodge the F.I.R., but alter lapse of about 1 5/ 16 days he lodged the F.I.R. suspecting some persons without making any specific complain or allegation against them. Rather a vague allegation has been made that there was enmity in between the deceased and the accused persons which cannot be treated as a authentic ground for causing such inordinate delay in lodging the F.I.R. It is well settled that in various decisions of our Apex Court that delay in lodging the F.I.R. gives opportunity to the prosecution for making embellishment and false implications. Further the P.W. 11, the investigating officer admitted in cross examination that before lodging of the F.I.R. he carried on investigation on the basis of a G.D. Entry. It is also settled that if any KI.R. is made in course of investigation that F.I.R. is not an F.J.R. at all which can at best be treated as statement of witness under Section 161 of the Code of Criminal Procedure and it is not admissible in evidence.

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36. Further in this case as per the learned Deputy Attorney General there is no eye witness of the occurrence and it is solely based on circumstantial evidence. The learned Deputy Attorney General referred a decision reported in 16 DLR, 161 regarding last seen. We have perused the aforesaid reported case and found it difficult to accept the submission that the deceased was last seen with the accused persons by witness Nos. 2 and 4. The fact of the reported case and the fact of the present case are quite distinguishable and further the circumstances which the aforesaid two witnesses disclosed in their evidence in this ease do not create any credence that they have seen the deceased with accused persons at about 8.00 am to 8.30 a.m that is accused Rouf Dewan, Hakim Dewan and deceased Naymuddin were standing with a Motorcycle by the side of the Balia Baid Road inasmuch as P.W. 2 staled that he has seen a Microbus which was standing at their right side with 5/7 persons, but nobody could give the number of Microbus or as per P. W. 4 the place is densely populated and there is Bus stand and a big Bazar nearby the place from where he saw his brother-in-law to go away alone by a Motor Cycle which is at a considerable distance from the place he claimed to have seen his brother-in-law and it is not a case that the accused persons have followed him with Microbus and abducted him, so the aforesaid reported case will not help the prosecution at all.

37. The learned Judge of the trial court mainly relied on so-called confessional statement of accused Ansar Ali as basis of conviction.

38. We have perused the statement of Ansar Ali which was marked as Ext. 5. We propose to reproduce his statement for ready reference which is as follows:AvbQvi Avjx Gi †dŠR`vix Kvh©wewa 164 aviv g‡Z Revbe›`xt Avgvi bvgt AvbQvi Avjx, wcZvt jvj kixd Xvjx, MÖvg-Pv›Uv, _vbv-bwoqv, †Rjv-kwiqZcyi, eZ©gv‡b evnv`yi cyi, _vbvt Rq‡`ecyi, †Rjvt MvwRcyi, eqmt 50| Avwg evnv`yicyi MÖv‡g †gvRnviæj n‡Ki RvqMvq _vwK Ges †W‡Kv‡iU‡ii †`vKvb PvjvB| gvwjKB †W‡Kv‡iUi w`‡q‡Q †mUvi Avq w`‡q

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Rxeb avib Kwi| gvm `yB GK Av‡Mi NUbv w`b Abyt 10.00 Uvi w`‡K 5/6 Rb gvbyl fwZ© mv`v gvB‡µvevm Avgvi †W‡Kv‡iU‡ii †`vK‡bi mvg‡b G‡m `vovq| Zv‡`i g‡a¨ K‡qKRb wKfv‡e Xz‡K e‡j kvUviwU †d‡j †`| Avwg f‡q kvUvi †d‡j †`B Ges evwn‡i `vovBqv _vwK| wfZ‡i Xz‡K GKRb‡K gviai K‡i| Avwg wPrKvi ïwb| 15/20 wgt Zviv wQj, Zviv Avevi wPrKvi w`‡q kvUvi Lyj‡Z e‡j| evwn‡i Zv‡`i Av‡iKRb wQj †m ZLb kvUvi †Lv‡j †`q Avwg mvnvh¨ Kwi| GKRb †jvK‡K Zviv aivawi K‡i gvB‡µv‡Z DVvq †es Mvox PvjvBqv P‡j hvq| Avwg Avt iDd‡K wPwb| Ab¨ KvD‡K wPwb bv| †`v‡b NUbvi K‡qKw`b Av‡M Avi‡Q GB myev‡` wPwb| Zvici Zviv mevB P‡j hvq| f‡q Avwg KvD‡K NUbv ewjwb| GB Avgvi e³e¨| 39. In the aforesaid statement Ansar Ali neither implicated himself in the commission of crime nor he implicated himself as abettor of the offence nor he stated that the deceased was killed inside the socalled decorator. Further it has been clearly stated by the learned Magistrate that Ansar Ali declined to make a confession under Section 164 of the Code of Criminal Procedure although he was forwarded for doing so, but he agreed to give some information about the occurrence and his statement was recorded on a white paper like other witnesses who made statement before him on the same date. It is curious to us that how the investigating officer or the prosecution treated this Ansar Ali as accused and how implicated him in the charge sheet, as accused and why the Magistrate considered him as witness?

On the other hand the learned Magistrate also forgotten that he was asked to record his statement as an accused by another Magistrate, but he declined to make any confessional statement. It was the duty of the Magistrate to send him to custody without recording his statement as a witness. He has ex-ceded his own jurisdiction and he has played the part of the police officer in recording the statement for which he was not instructed. In this regard the learned Judge of Tribunal referred to a decision of the case of Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC). But just going through the head note, the learned Judge arrived at a decision that the aforesaid decision is applicable in this case, forgetting that in the body of the judgment it has been held

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that if the statement recorded following section 164 and 364 of the Code of Criminal Procedure then only the same is admissible in evidence and as such this so-called statement of Ansar Ali is not admissible in evidence inasmuch as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness and as such is not admissible in evidence, as suggested in the aforesaid case.

40. He has referred another decision which is related to Civil Case and thus it has no manner of application in the present case.

41. The aforesaid act is not expected from a responsible Judge of Druto Bichar Tribunal. He has wrongly amalgamated the terms of admission and confession. Where the question is unsettled, whether the statement of Ansar Ali was recorded as a witness or an accused, even then the learned Judge based his judgment on the so-called statement of Ansar Ali treating it as confession of an accused.

42. We are constrained to hold that the learned Judge having power to inflict even death sentence upon a person should have sound knowledge in law.

43. It may be mentioned here that it has been well settled by the Apex Courts of this Sub-Continent that an accused can not be convicted on the sole basis of a confession made by co-accused unless it has got corroboration from independent source. In this ease the so-called statement of Ansar Ali is not confession at all, rather it is a statement of witness as admitted by recording Magistrate but he was shown in the column of accused as a result the convict accused persons did not get any scope to cross-examine him.

44. We have given our anxious thought over the- whole prosecution case, but we are surprised to note that the police personnel’s have conducted a perfunctory investigation and submitted a belated charge sheet under Section 302/201/34 of the Penal Code and the learned Judge of the Druto Bichar Tribunal conducted the trial and arrived at a decision to inflict death sentence to one of the accused persons without proper appreciation of evidence on record in its true perspective.

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The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

45. Belated examination of witness: The delayed examination of witnesses by the Investigating officer afforded an opportunity of concoction and it makes testimony of the witness unreliable .

46. In this connection reference may be made to the case of the Sate Vs. Paran Chandro Baroi: Reported in 2 B.C.R. -292: Relevant Para-12-14: Where it has been held: "' In this connection the power given to the Police officer under Section 175(1) of the Code of Criminal Procedure cannot be over looked. No reason has been given by the prosecution for the delayed examination of these two witnesses. They were examined by the I.O. after 4 days of the occurrence.

The delay in examining them has not been explained. The delay in examining P.Ws. 4 and 5 in the circumstance of the case appears to be unjustified. In the facts and circumstances of the case I am of the opinion that it would not be safe to rely or the testimony of P.Ws. 4 and 5.

47. Further reference may be made to 25 BCR (HC)—216: Kazi Mahbubuddin Ahamed Vs. the State.

Held: "Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording statements when memory of witness remain fresh as human memory is always fleeting. Benefit of doubt arising out of the unusual delay of examining and noting down statements would got to accused."

48. On perusal of the ease Diary it appears that the Investigating Officers examined the witnesses on the dates mentioned against their names:

A. Rashim -------- examined on 15.3.1999 Osman Gani

"

" on 15.3.1999

Abdur Rob

"

" ------ 29.7.1999

Moksed Ali

"

"—-29.7.1999

Md. Mainuddin "

"—12.9.2002

Sunwar Hossain "

"-—29.12.2001

SagorHossain

"— 11.8.2002

"

Anwar Hossain “ MunnuMia

"

“ — 8.10.2002 " —8.9.2002

49. The above chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as result their testimony became untrustworthy and unreliable. Therefore, no convic-tion can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of evidence.

50. We off and on hear through Media that police by exercising their prudence and after facing long trouble used to catch the criminals, but they used to get bail, even acquittal from this court and the general people of this country has been loosing their confidence upon the judiciary believing the aforesaid statements, specially made by the police department. But considering the present case we arc surprised to note that one of the police personnel was murdered and another police personnel is the informant in this case and at the same time a High Ranking Police Officer is a relation of the deceased and a perfunctory investigation was conducted consuming long time and changing Investigating Officers one after another, involved the accused persons without having any materials in the whole case records, but arranged to get the accused person convicted and one of them was sentenced to death.

It is really shocking to us that the police officers who diverted the case by fabricating the facts for facilitating awarding of conviction towards the socalled enemies of a police officials are kept above law!

51. We also find that charge does not contain any essential materials to give proper notice to the accused persons as to what offence they have committed and thus it has caused prejudice to them.

52. We have given our anxious thought over the whole matters and hold that if we allow the reference and allow the execution of the death penalty, it will be treated as a "judicial murder".

So we are not inclined to commit such murder sitting on the high altar of judiciary.

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53. In the result, the reference is rejected and the criminal appeals including the jail appeal are allowed.

54.

Let an advance order be sent to the concerned court and the concerned jail authority to release the condemned prisoner forthwith, if not wanted in connection with any other case. Other convict appellants be discharged from their bail bond.

55.

Send down lower courts record forthwith.

Let a copy of this judgment be forwarded to the Inspector General of Police with an expectation that he will look into the matter so that general people do not suffer, as those have been done in the present case, making favor to a police family.

Ed.

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I LNJ (2012)

BGP Inc., China National Petroleum Corporation Vs. Bangladesh and others (Farah Mahbub, J.)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Mrs. Farah Mahbub J. Mr. Farid Ahamed J. Judgment 29.05.2011

BGP Inc., China } National Petroleum Corporation, ..... Petitioner.

VS } Bangladesh and others . .....Respondents

Constitution of Bangladesh, 1972 Article 102 Public Procurement Act (xxiv of 2006) Section 2(23) and 29 Public Procurement Act 2008 Rules 2 (41), 56 and 117.

The petitioner has challenged the Memo dated 10.20.2011 purporting amongst others that the petition is non-responsive against “Invitation for Engagement of Seismic contractor”. The fact remains that Petrobangla considered the EOI of BGP (Bangladesh) International as appropriate, and short listed the same as contractor, whereas the Review Panel-1 declared the said contractor as non responsive on the count that BGP Inc., CNPC being a separate entity cannot file RFP. The said decision has been given without giving opportunity to BGP (Bangladesh) International to represent their part of the case. No doubt, there is serious anomally over the ambiguity of the petitioner-company who filed RFP, which is still lying pending before the Evaluation Committee for consideration and above all as per ITC clause 5.1 filing RFP is limited to short list contractors only. As such, since BGP (Bangladesh) International has been declared non-responsive the said short-listed contractor is the appropriate aggrieved person to maintain this writ petition, not BGP Inc., CNPC. The respondent No. 8 being a “subcontractor” it’s right and interest lies with the short-listed contactor CGG veritas, France who does not appear to have authorized the said respondent to file complaint to the concern authority against BGP Inc., CNPC in order to oust BGP (Bangladesh) International without making it a party. Hence, has no locus standi to maintain the complaint before the Review Panel1, respondent No.3. In the present case, the Procuring Entity short listed 8 (eight) contractors and the RFP submitted by them are still lying pending for consideration before the Evaluation Committee, either to be declared responsive or

*Writ Petition No. 2005 of 2011

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non-responsive. Moreover, the allegation was against BGP (Bangladesh) International whose right to be declared responsive or non-responsive has been adjudicated and disposed of by the respondent no. 3 without making it a party and without issuing notice providing opportunity to defend it’s part of the case by adducing documents, which is a flagrant violation of the principle of natural justice. The impugned order dated 10.02.2011 passed by the respondent no.3 is declared to have been passed without lawful authority and hence, of no legal effect. . . . . (25 and 27 to 30) Mr. Rokanuddin Mahmud, Senior Advocate with Mr. Mustafizur Rahman Khan, Advocate ..... For the writ Petitioner.

Mr. Amir-Ul Islam, Senior Advocate with Mr. Nurul Amin, Advocate with Mr. Sheikh Rafiqul Islam, Advocate ....For the Respondent No. 8.

Mr. Mohammad Ashraf Uddin Bhuiyan ........ For the respondent No. 6.

Judgment Farah Mahbub, J In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the decision of respondent no.3, communicated under memo no. IMED/CPIU/RP01/90-2011/151 dated 10.02.2011 (Annexure-A), purporting that the petitioner, amongst others, is nonresponsive against “Invitation for Engagement of Seismic Contractor” for conduct of 3100 L Km of 2D seismic survey in Block nos.2,3,4,6,8 and 11 under proposal no.31.02.204/160 issued on 11.04.2010, should not be declared to have been passed without lawful authority and hence, of no legal effect.

2.

At the time of issuance of the Rule the operation of the impugned decision dated 10.02.2011 has been stayed.

3.

Facts, in brief, are that the petitioner, a globally reputed geophysical and seismic survey company incorporated under the laws of the People’s Republic of China, having its Head Office in China and Branch Office in Bangladesh, impugned the decision of the respondent no.3 communicated under memo No. IMED/CPTU/RP-01/90-2011/151 dated 10.02.11

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(Annexure-A) contending, inter alia, that it had undertaken seismic survey projects in various parts of the world, including Bangladesh, for different public and private sector clients. The petitioner company established a branch office in Dhaka upon obtaining permission from the Board of Investment vide memo dated 25.11.2009 (Annexure-B). Vide notification dated 17.09.2009, Petrobangla, respondent No. 5 requested to offer Expressions of Interest (in short, EOI) for short listing seismic contractor to carry out 2D Land Seismic Contract-3100 Lkm Seismic Survey including Data Processing and Interpretation under Fast Track Programme. In response to the said invitation the petitioner submitted an EOI on 28.10.2009 containing necessary informations and particulars about the petitionercompany, signed by the General Manager, BGP (Bangladesh) International. It has also been contended that EOI, in fact, was submitted by the petitioner-Company, “BGP Inc., China National Petroleum Corporation (in short, CNPC)” as is apparent from the contents of the EOI and the materials enclosed therein including the performance certificates issued against past contracts(AnnexureD). Following the assessment of the respective EOIs submitted by the interested parties, the petitioner along with 7 (seven) other contractors were short listed as contractors for the proposed survey by Petrobangla, placing the petitioner company at serial No. 6 under the name “BGP (Bangladesh) International”. Accordingly, letter of invitation dated 11.04.2010 was issued enclosing therewith a “Request for Proposal (in short, RFP) inviting the petitioner company to submit its proposal for the respective project (Annexure-E). Since “BGP (Bangladesh) International” was not a separate legal entity, but part of the internal organizational structure of the petitioner-Company the petitioner, before submitting its technical proposal(RFP) and before the respondent No. 8 filed objection, under it’s cover letter dated 10.06.2010 along with a letter dated 24.05.2010 and a statement dated 31.05.2010, clarified the position that the name of the short listed bidding entity was, in fact, BGP Inc., China National Petroleum Corporation (Annexure-F, F-1, and F-2 respectively). When RFPs, submitted by the petitioner-company and others, were still under the

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process of consideration the petitioner-company came to receive information of the impugned decision purporting that it had been declared nonresponsive by the respondent no.3 vide it’s decision dated 10.02.2011 (Annexure-A) without making either BGP (Bangladesh) International or BGP Inc., China National Petroleum Corporation a party or giving personal hearing, upon a review petition filed by the respondent no.8 purporting to be the subcontractor of one of the other short listed contractors, CGG Veritas, France without due authorization of the Principal-Contractor (Annexure-G,G-1 and G-2 respectively). Being aggrieved by and dissatisfied with the petitioner company had preferred the instant application and obtained the present Rule.

4.

Respondent No.8 entered appearance by filling affidavit-in-opposition contending, inter alia, that Petrobangla vide notification dated 17.09.2009 invited for EOI from the eligible contractors in order to get seismic contract for carrying out 2-D land seismic survey involving about 3100 Lkm data acquisition including Data Processing and Interpretation and related services. CGG Veritas, France on 28.10.2009 submitted EOI along with other participants including BGP (Bangladesh) International (Annexure-I-A and I-B). After scrutiny, on 11.04.2010 Petrobangla made a short list as per the Rules and sent a Letter of Invitation to 8(eight) short listed companies. Accordingly, Request For Proposal (shortly, “RFP”) was issued to the short listed contractors including BGP (Bangladesh) International. The petitioner-company namely BGP Inc., CNPC was not on that list. CGG Veritas, France mentioning respondent no.8 as its local agent and sub-contractor submitted RFP to Petrobangla on 14.06.2010 (Annexure-I-C, I-D and I-E respectively).

BGP (Bangladesh) International submitted EOI in its

own name and was short listed to participate in the bid, but RFP was submitted on 14.06.2010 in the name of BGP Inc., China National Petroleum Corporation, No. 189 Fanyang Xi Road, Hebei Province, China instead of BGP (Bangladesh) International in violation of the terms and conditions of RFP Clause-5.1. Respondent no.8, the local agent of CGG Veritas, France on 26.12.2010 submitted an application to the Director (Planning), Petrobangla

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complaining the irregularity that a new Company BGP Inc., CNPC though not short listed, was incorporated in the evaluation list in violation of section 117 of the Public Procurement Rules, 2008 (in short “PPR, 2008”) Annexure-I-F). Finding no response respondent no.8 on 03.01.2010 filed another representation to the Head of Procuring Entity and the Managing Director of BAPEX about the aforementioned complaint who also failed to take necessary steps in the matter (Annexure-G). Respondent No. 8 on 11.01.2011 raised the said issue to the Secretary, Energy, Mineral Resources Division, Ministry of Power, Energy and Mineral Resources, but without any effective result (Annexure-I-H). Having exhausted all the procedural steps as per rule 57 of PPR, 2008 and having not received any response respondent no.8 on 19.01.2011 filed a review petition to the Chairman, Review Panel-1, CPTU, IMED Division, Ministry of Planning, respondent No. 3.

The Review Panel after hearing both the parties (respondent No. 8 and Petrobangla) vide memo No. IMED/CPTU/RP-01/ 90-2011/151 dated 10.02.2011 allowed the same and declared BGP (Bangladesh) International non-responsive according to PPR, 2008.

Being aggrieved the petitioner had filed the aforesaid writ petition even though it neither participated in the tender process nor was in the short list and accordingly, the present writ petition is not maintainable. It has further been contended that BGP (Bangladesh) International at no stage of the tender process claimed that they had Branch Office in Dhaka, Bangladesh or was the agent of BGP Inc., China National Petroleum Corporation. Also, the organogram so had been presented by the writ petitioner goes to show that there is no link between BGP (Bangladesh) International and BGP Inc., CNPC. As such, the petitioner-company was not entitled to be informed or communicated about the decision whatsoever of the respondent No. It has further been stated that on 25.11.2009 BGP (Bangladesh) International had established a Branch office at Dhaka of BGP Inc., CNPC on 25.11.2009 which is much later than the notification dated 17.09.2009 published by Petrobangla and also after the closing date of EOI on 28.10.2009. As such, opening of a new branch cannot go to have retrospective effect. It has also been contended that

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BGP Inc., CNPC at no stage submitted any EOI in response to the notification dated 17.09.2009. The EOI was, in fact, submitted by the BGP (Bangladesh) International without any signature and address stating, inter alia, that it was submitted by BGP (Pakistan) International and that “BGP(Pakistan) International was responsible to receive and prepare the tender/bid package and make necessary arrangement to carry out the work”, which goes to prove that the BGP (Pakistan) International was separate entity as well as EOI being unsigned proved itself to be a fraudulent attempt with a view to sabotage or frustrate the project so had been undertaken by the respondent-government towards resolving the gas problem in the country. From Annexure-E it is clear that BGP (Bangladesh) International along with 7(seven) other companies were short listed, not the petitioner-company. Hence, question of submitting RFP by the petitioner does not arise at all. It has also been stated that letters dated 10.06.2010, 24,05.2010 and 31.05.2010 (AnnexureF, F-1 and F-2 respectively) submitted by the petitioner-company who appeared out of no where after one BGP (Bangladesh) International was short listed is an attempt to take over the opportunity given to BGP (Bangladesh) International, which is strictly prohibited under PPR Rules,2008 and is also in violation of the Letter of Invitation dated 11.04.2010.

It has further been contended that the petitioner was not notified by serving copy of the review petition simply because they were not party to the dispute raised by the respondent no.8 before the respondent No. 3. It has also been stated that BGP (Bangladesh) International submitted its EOI under the name and style “BGP (Bangladesh) International”, Gulshan Dhaka but RFP was submitted by BGP Inc. CNPC No. 189 Fanyang Xi Road, Hebei Province, China. In the process of EOI no documents were filed in favour of the petitioner-company to show that both the companies were jointly ventured or linked with each other, rather from the documents of EOI (AnnexureD) it is quite clear that the BGP (Pakistan) International had authorized BGP (Bangladesh) International to submit EOI and said BGP (Pakistan) International was entitled to receive and prepare the tender/bid package and to make necessary arrangement to carry out the work. The respondent No. 3

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considering the same also found that BGP (Bangladesh) International had failed to show any link with BGP Inc. CNPC. It has further been contended that respondent No. 8 was the local agent of the short listed CGG Veritas as is evident from the papers submitted by the CGG Veritas to Petrobangla.

In the technical offer of the bid respondent no.8 had been mentioned as agent and sub-contractor. It’s qualifications and experience were also incorporated in the offer. In the financial offer form 5B1 represented the name and address of the agent, the respondent no.8 and the same had been accepted by Petrobangla, hence the steps so had been taken by respondent no.8 was on behalf of CGG Veritas.

5.

Mr. Rokanuddin Mahmud, the learned Senior Advocate appearing with Mr. Mustafizur Rahman Khan the learned Advocate for the petitioner drawing attention to the notification dated 17.09.2009 (Annexure-C) submits that Petrobangla in its international tender had invited Expression of Interest(EOI) from the eligible contractors to be short listed to get Seismic Contract for carrying out 2D land seismic survey, where within it’s four corners there was no stipulation to the effect that the intended contractor has to have a registered branch office in Bangladesh in order to offer EOI. He further goes to argue that in response to the offer made by the petitioner company on 17.09.2009 it had submitted EOI on 28.10.2009 along with the documents showing its experience /expertise in the respective field. In this connection drawing attention to Annexure-D to the writ petition he further contends that at the left hand corner of the cover page there is a logo of BGP Inc. CNPC. Moreso, the documents relating to experience and capacity of the Seismic data process Interpretation of service as enclosed with the EOI is of BGP Inc. CNPC. With the EOI the petitioner company also submitted the Articles of Association of BGP Inc. CNPC. Accordingly, he submits that since EOI is not confined within its cover page but represents the entire documents as submitted before the Petrobangla, as such it cannot be found that the BGP (Bangladesh) International and BGP Inc. CNPC are separate entity. Moreover, he submits that the petitioner company has submitted EOI as the bidder and that accepting the alleged

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anomally, as apparent on the cover page of EOI, Petrobangla has short listed the petitioner company along with 7(seven) others vide Invitation no.

31.02.04/162 dated 11.04.2010 (Annexure-E) and directed the short listed contractors to submit RFP. He also submits that the petitioner company vide letter dated 24.05.2010 clarified the ambiguity regarding submission of EOI by BGP (Bangladesh) International along with other statements (AnnexureF). Subsequent thereto the petitioner under its cover letter dated 10.06.2010(Annexure-F) submitted RFP to the BAPEX. When the process of selecting a qualified contractor is pending before the Evaluation Committee of Petrobangla, the respondent no.8 having no locus standi within the meaning of section 2(23) of the Public Procurement Act,2006 (Act no.24 of 2006)( in short, the Act) and rule 2(41) of Public Procurement Rules,2008(in short, the Rules) made an application on 26.12.2010 before the Director (Planning) Petrobangla, to the Secretary, Energy Mineral Resources Division, Ministry of Power, Energy and Mineral Resources on 11.01.2011, and the Head of Procuring Entity and Managing Director of BAPEX on 03.01.2011 (Annexure-G, G-1 and 2 respectively). In this regard drawing attention to the words “Awf‡hvM Kwievi AwaKvi” as incorporated in section 29 of the Act no.24 of 2006 he submits that only the person as defined in section 2(23) and/or rule 2(41) is eligible to file complaint against the “Procuring Entity” (H²uL¡l£) for having sustained loss because of its failure to discharge its duties towards the complainant or when there is a possibility of sustaining loss for such failure; whereas “H²uL¡l£”, the procuring entity means the entity having the administrative and financial authority to purchase “ −L¡e feÉ H²uL¡kÑ h¡ ®ph¡”.

Respondent no.8 being evidently a “sub-contractor” of CGG Veritas, France has no locus standi to make complaint before the Petrobangla/Bapex or even before the Review Panel since it’s right and interest are confined only within the periphery of the contract so have been entered into with CGG. Veritas, France.

In addition to that a complaint may be made under rule 56 of the Rules, 2008 for the reasons as stated therein. In this regard upon placing the complaint so had been made by the respondent no.8. Mr. Mahmud

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further submits that it is apparent therefrom that it does not qualify any of the circumstances as mentioned in rule 56 of the Rules, 2008. Moreover, rule 56 does not permit to make complaint against one of the short listed contractors whose REP is yet to be scrutinized and finally selected by the Evaluation Committee of Petrobangla.

6.

He also goes to argue that the jurisdiction to declare a short listed contractor responsive or nonresponsive squarely lies upon the Tender Evaluation Committee, the respondent no. 3 is authorized only to recommend (“p¤f¡¢lnH²−j”), not to declare short listed contractor non-responsive. As such, he submits that declaring BGP (Bangladesh) International, which is the integral part of the petitioner company, non-responsive vide impugned order is without jurisdiction. Lastly, he submits that the impugned order further fails for non-compliance of the principle of natural justice since neither BGP (Bangladesh) International nor BGP Inc. CNPC has been made party in the process nor they have been called upon to represent their part of the case. In this regard he submits that if the respective correspondences/documents as contained in Annexure-D as well as Annexure-F to the writ petition could have been produced before the Review Panel it might have taken a different view in view of the findings given by respondent no. 3 “no papers and relevant documents have been filed”.

Accordingly, he submits that upon making the Rule absolute the impugned order dated 10.02.2011 (Annexure A to the writ petition) passed by the respondent no. 3 is liable to be declared to have made without lawful authority and is of no legal effect.

7.

Per contra, Mr. M. Amir-Ul Islam the learned Senior Advocate appearing with Mr. Md. Nurul Amin, the learned Advocate on behalf of the respondent no.8 assailing the locus standi of the petitioner-company submits that EOI has not been placed by the petitioner company, it was BGP (Bangladesh) International who submitted the same via BGP (Pakistan) International without endorsing the signature of the respective officer of the company as well as without mentioning the date and address of the respective company. As such, the EOI so submitted the respective company has no legal basis.

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Moreover, when the Letter of Invitation clearly states, “it is not permissible to transfer this invitation to any other contractor/firm”, also in ITC: 5.1 it has been provided that “this request for proposal document is limited to short listed Contractor (s) only”, as such, submitting REP by BGP Inc. CNPC on 14.06.2010 is the violation of the terms and conditions of REP clause 5.1. He further argues that the respondent no.8 is an agent of CGG Veritas, France as has been clearly stated in its Technical Proposal Submission Form dated 05.06.2010 submitted by the CGG Varitas, France in addition to his status as a sub-contractor. In this regard he also submits that section 29 of the Act 24 of 2006 having used the words “−L¡e hÉ¢J²” he has locus standi to maintain a complaint against the petitioner-company who is nothing but an intruder to the tender process.

Hence, submitting application on 26.12.2010 (Annexure-G) by the respondent No. 8, (the local agent of CGG veritas, France and a sub-contractor) to respondent No. 6 bringing notice to the said irregularity being allegedly committed by an inter polar, the petitioner company, in violation of rule 117 of the Rules, 2008 is obviously maintainable.

However, receiving no response the respondent no.8 made complaint to respondent no.7 as well as respondent no.2 to take necessary action. The authority paid no heed to the same. In this connection drawing attention to the EOI (Annexure-D) submitted by BGP (Bangladesh) International he goes to argue that on a plain reading it is apparent that Petorbangla is rather solicitating participation of the said company in the tender process with a view to hand over the bid to the said company most unauthorisedly and thereby making an attempt to frustrate the principle of transparency, which is one of the objects for which Act, 24 of 2006 has been promulgated. Accordingly, he submits that the petitioner company having not participated in the bid (which has further been fortified from Annexure-B), establishing a branch office in Dhaka upon obtaining permission from the Board of Investment on 25.11.2009 (after the closing date of the bid dated 28.09.2010) and that being a separate entity from BGP (Bangladesh) International has no legal authority to submit REP. Considering the position of law and fact the Review Panel no.1, respondent no.3

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has rightly declared BGP (Bangladesh) International as non-responsive. Accordingly, he submits that no interference is called for, rather declaring that the petitioner is not an aggrieved person within the meaning of Article 102 of the Constitution this Rule is liable to be discharged as being not maintainable with costs.

8.

Mr. Mohammad Ashraf Uddin Bhuiyan, the learned Advocate appearing on behalf of the respondent No. 6, Petrobangla upon submitting a vokalatnama today adopted the submissions so has been advanced on behalf of the respondent no.8 and contended that till date no decision has been taken by the said respondent towards selecting the responsive contractor upon considering the REP as submitted by the short listed contractors.

9.

In order to carry out a 2-D Land Seismic Survey involving about 3100 L km Data Acquisition including Data Processing and Interpretation and related services under Fast Track Programme Bangladesh Oil, Gas, Mineral Corporation (Petrobangla) issued notice on 17.09.2009 (Annexure-C) for Expression of Interest(EOI) to be submitted by the interested internationally reputed geophysical contractors having required qualifications, as stated therein, for short listing Seismic contractor/firm with supporting documents in support of the experience on or before 12:00 (BST) on 28.10.2009 in sealed envelop to the Director(Planning) Petrobangla, Petrocentre;3, Kawran Bazar, Dhaka, Commercial area, Dhaka.

10. In response, BGP (Bangladesh) International submitted its EOI allegedly without any date or signature stating, inter alia, that it was submitted by BGP (Pakistan) International and that “BGP (Pakistan) International” is responsive to receive and prepare tender bid package and make necessary arrangement to carry out the respective work.

However, CGG Varitas, France also submitted EOI on 20.10.2009 (Annexure-I-A). At this juncture, Mr. Mahmud, the learned Senior Advocate submits that respondent no.8 cannot make a complaint before the respondent no.3 since it did not submit any EOI nor in the EOI CGG Varitas, France has been identified as a joint venture company with respondent no.8.

Rather, in the subsequent letter dated 05.06.2010

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(Annexure-I-D) CGG Varitas, France appears to have submitted proposal in association with 3(three) sub-contractors and respondent no.8 is one of those 3 (three).

11. However, CGG Veritas, France while issuing 2nd letter on the same date i.e., 05.06.2010 has introduced respondent no.8 as a sub-contractor contending, inter alia-,“Arneeb Enterprise, PBL Tower (11th floor), 17 Kemal Atanturk Avenue, Gulshan-2, Dhaka-1212, Bangladesh-Sub-Contractor.

Enem Express Ltd., Chartered Accountant Bhaban (2nd floor), 100 kazi Nazrul Islam Avenue, Kawran Bazar, Dhaka-1215, Bangladesh-Sub-Contractor. Yean Tun Chinese, Thai & Indian Restaurant, 50,Tejkunipara, Airport Road, Tejgaon, Dhaka-1215, Bangladesh-SubContractor.”

12. While narrating profiles of the respective contractors it has further been stated, inter alia-, “SUB-CONTRACTOR: ARNEEB Enterprise Arneeb Enterprise’s is a local company experience with more than 25 years in performing the job for supplying Casual Labour with foods subsidy & PPE with other various logistic supply to petrobangla and its various companies like BAPEX, BGFCL, SGFL and IOC’s like Shill, Occidental Unocal, Chevron and Tullow. Arneeb enterprise also works as agent and seismic crew supplier of CGG Veritas since 1980 for various Clients from IOC to NOC. Arneeb Enterprise amalgamated with N&N Corporation and UME under the same ownership is well known in hydrocarbon industry of Bangladesh for last nearly 30 years. Its access to highly skilled personnel translates into solutions that are both cost effective and of high quality thereby minimizing quality, which is the driving force behind its work.”

13. It, thus, reflects that earlier respondent no.8 also worked as an agent of CGG Varitas, France.

However, for submitting EOI with regard to the international bid in question it has been identified as a “sub-contractor”. At this stage, the learned Advocate for the respondent No. 8 goes to argue that the interest of sub-contractor comes into play with the submission of REP. Since in the present case proposal has been submitted by CGG Veritas, France, respondent No. 8 has every right to restrain a stranger who at no point of time (before declaring the

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short listed contractors) participated in the process of the tender in question.

14. 14. In order to understand the position of “subcontractor” first we require to understand the position of the “Contractor”. The word “¢WL¡c¡l”, the Contractor, has been defined in section 2(10) of the Act no.24 of 2006 as has been adopted in rule 2(18) of the Rules, 2008, which provides as under“wVKv`viÓ A_© GB AvB‡bi Aaxb †Kvb Kvh© m¤úv`‡bi D‡Ï‡k¨ µqKvixi mwnZ Pzw³ m¤úv`bKvix e¨w³|Ó 15. In other words, a “contractor” means the person who has entered into a contract with the Procuring Entity to accomplish a work which has been undertaken under the Act No. 24 of 2006. The Act No. 24 of 2006, however, is silent about the definition of “sub-contractor”. The same has been defined in rule 2(56) of the Rules’ 2008, which is quoted herein below-Òmn-wVKv`vi (subcontractor)” ewj‡Z Pzw³e× Kv‡h©i †Kvb Ask m¤úv`‡bi Rb¨ wVKv`v‡ii mwnZ Pzw³e× †Kvb e¨w³ ev wewae× ms¯’v‡K eySvB‡e Ges wbe©vwPZ ¯’v‡b KvRI Dnvi AšÍf~©³ nB‡e|Ó (Emphasis given).

16. In other words a “sub-contractor” comes into play when a contract has been concluded with the Contractor and the Procuring Entity. Subsequent thereto a separate contract is executed between the “Contractor” and the “Sub-contractor” in order to complete the contractual works. However, rule 53 provides for appointment of a “Sub-contractor”, which runs as follows:- “mn-wVKv`vi ev mncivg©kK wb‡qvM|- (1) µqKvix, Av`k© `icÎ ev cÖ¯Íve `vwL‡ji Aby‡iva m¤^wjZ `wj‡j Dwj-wLZ h_vh_ †hvM¨Zv _vKvi mg_©‡b cÖ‡qvRbxq KvMRcÎ `vwLj Kiv mv‡c‡¶, †Kvb mieivnKvix, wVKv`vi ev civgk©K‡K mn-wVKv`vi ev mncivgk©K wb‡qv‡Mi AbygwZ cÖ`vb Kwi‡Z cvwi‡e| (2) mn-civgk©K wnmv‡e †Kvb cÖ¯Ív‡e Dwj-wLZ †Kvb cÖwZôvb (firm) GKvwaK cÖ¯Ív‡e AskMÖnY Kwi‡Z cvwi‡e, Z‡e D³ AskMÖnY ïay mn-civgk©K wnmv‡eB Kwi‡Z nB‡e| (3) `ic‡Î mywbw`©ófv‡e Dwj-wLZ mnwVKv`v‡ii †hvM¨Zv wVKv`v‡ii †hvM¨Zv g~j¨vq‡b ïay Zvnvi (mn-wVKv`v‡ii) Rb¨

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wba©vwiZ Kv‡Ri †¶‡Î we‡ePbv Kiv hvB‡Z cv‡i| (4) mn-wVKv`v‡ii mvaviY AwfÁZv Ges Avw_©K m¤ú` `icÎ`vZvi mvaviY AwfÁZv I Avw_©K m¤ú‡`i mwnZ †hvM Kiv hvB‡e bv| (5) †Kvb Av‡e`bKvix hw` e¨w³MZfv‡e, ev †hŠ_ D‡`¨‡Mi Askx`vi wnmv‡e †Kvb cÖ¯Íve `vwLj K‡i, Zvnv nB‡j GKB µq cwµqvq Ab¨ †Kvb Av‡e`bKvixi mn-civgk©K wnmv‡e wZwb MÖnY‡hvM¨ nB‡e bv| (6) mnwVKv`vi ev mn-civgk©K wb‡qvM m‡Ë¡I, mswk-ó µq Pzw³i Aaxb cvjb‡hvM¨ `vq-`vwqZ¡ m¤úY©i“‡c mieivnKvix, wVKv`vi I civgk©‡Ki Dci b¨¯Í _vwK‡e Ges D³ `vq-`vwqZ¡ mn-wVKv`vi ev mn-civgk©‡Ki wbKU n¯ÍvšÍi Kiv hvB‡e bv, ev †Kvb Ae¯’v‡ZB Pzw³e× `vq-`vwqZ¡ mn-wVKv`vi ev mn-civgk©‡Ki wbKU Ac©‡Yi AbygwZ cÖ`vb Kiv hvB‡e bv| (emphasis given) (7) gyL¨ mieivnKvix ev wVKv`vi ev civgk©K Zvnvi mnwVKv`vi evmn-civgk©KM‡bi e¨e¯’vcbvi Rb¨ `vqx _vwK‡e, Ges mve-KȪv±mg~‡n e¨vc‡i µqKvixi ch©v‡jvPbv mvaviYZ gyL¨ mieivnKvix ev wVKv`vi ev civgk©K KZ©„K mve-KȪv±mg~n e¨e¯’vcbvMZ g~j¨v‡bi g‡a¨B mxwgZ _vwK‡e|Ó In consideration of the said provisions of the Rules, 2008 we find no substance in the arguments so has been advanced by the learned Advocate for the respondent No. 8. Rather, we are of the view that the duties and responsibilities under the contract squarely lies upon the “Contractor” and under no circumstances can it be shifted to the “Subcontractor”. Keeping that view in mind it was CGG Veritas, France, a short listed contractor, who was entitled to lodge complaint, if there be any, against BGP (Bangladesh) International. The said finding of ours is further fortified from section 29 of the Act no.24 of 2006 which provides the right to lodge complaint; “29| Awf‡hvM Kivi AwaKvi|- (1) †Kvb e¨w³ GB AvB‡bi Aaxb µqKvixi Dci Awc©Z `vwqZ¡ cvj‡b e¨_©Zvi Rb¨ ¶wZMÖ¯Í nB‡j ev Zvnvi ¶wZMÖ¯Í nBevi m¤¢vebv _vwK‡j wZwb D³ µqKvixi wei“‡× aviv 30 G ewY©Z KZ©„c‡¶i wbKU Awf‡hvM `v‡qi Kwi‡Z cwi‡eb| (2) wbgœewY©Z †¶‡Î Dc-aviv (1) Gi Aaxb †Kvb Awf‡hvM `v‡qi Kiv hvB‡e bv h_v:- (K) cY¨, Kvh© ev †mev µq c×wZ wbe©vPb; (L) †Kvb Av‡e`bKvixi msw¶ß ZvwjKvfyw³i Av‡e`b cÖZ¨vL¨vb; (M) †h mKj †¶‡Î wbgœewY©Z wm×vš— M„nxZ nBqv‡Q-(A) cÖvK-†hvM¨Zvi Av‡e`b, `icÎ, †Kv‡Ukb ev cÖ¯—ve evwZj Kwievi

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wm×všÍ; ev(Av) miKvix µq msµvš— gwš¿mfv KwgwU KZ©„K Aby‡gv`‡bi cwi‡cªw¶‡Z Pzw³ m¤úv`‡bi wm×v¯—|” 17. Here, the important word is “hÉ¢J²”, the person who may file complaint. The definition of “person” or “hÉ¢J²” has been provided in section 2(23) of the Act no. 24 of 2006, as adopted in rule 2(41) of the Rules, 2008, which states as follows: “hÉ¢J² AbÑ H²u LjÑL¡−ä AwnNËq−Z BNËq£ hÉ¢J², hÉ¢J²hNÑ, hÉ¢J² j¡¢mL¡e¡ fË¢aÖW¡e, Awn£c¡l L¡lh¡l, ®L¡Çf¡e£, pwO h¡ pjh¡u p¢j¢a;” 18. In other words, persons are those who aspire to participate in the bidding process. Considering the said definition and the definitions of “Contractor”, and “Sub-contractor” the word “hÉ¢J²” as appeared in section 29 of the Act can only go to mean the bidder (the “contractor”), not the “sub-contractor” since his interest comes to play when a separate contract is entered into with the contractor and the subcontractor. That be the case, a complaint can only be maintained before the authority concern by the contractor, not the sub-contractor. As such, filing complaint by the respondent No. 8 is not maintainable in the eye of law.

19. The next issue which needs consideration is against whom the complaint may be made.

20. Rule 56 of the Rules’ 2008 protects the right to file complaint against “−L¡e H²uL¡l£ hÉ¢J²” on the ground as stated therein. Rule 56 is quoted herein below.

“56| Awf‡hvM Kivi AwaKvi|wbgœewY©Z †¶‡Î ev cwiw¯’wZ‡Z †Kvb µqKvixi wei“‡× AvbyôvwbK Awf‡hvM `v‡qi Kiv hvB‡e, h_vt- (K) cÖvK-†hvM¨Zv wbav©i‡Yi †¶‡Î- (1) weÁvcb cÖKvwkZ nIqvi Zvwi‡L cÖvK-†hvM¨Zvi `wjj cÖ¯‘Z Kiv bv _vwK‡j ev m¤¢ve¨ Av‡e`bKvixi Aby‡iv‡a Dnv cÖvwßmva¨ bv Kiv †M‡j; ev (2) m¤¢ve¨ Av‡e`bKvixi ¯úóxKi‡Yi Pvwn`vi cwi‡cÖw¶‡Z h_vmg‡q Zrm¤ú‡K© e¨vL¨v cÖ`vb bv Kiv nB‡j; ev (3) cÖvK-†hvM¨Zvi `wj‡j Dwj-wLZ

wbY©vq‡Ki Av‡jv‡K g~j¨vqb KwgwU †hvM¨Zv g~j¨vqb Kwi‡Z e¨_© nB‡j; ev (4) cÖvK-†hvM¨Zv wba©vi Ab¨vqfv‡e A¯^xK wZ Ávcb Kiv nBqv‡Q g‡g© aviYv Kwievi m½Z KviY _vwK‡j ; ev `~bx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡j| (L) Db¥y³, mxwgZ, mivmwi, `yBch©vq I †Kv‡Ukb c×wZi †¶‡Î- (1) cÖ‡hvR¨ ‡¶‡Î, wewa 90 AbymiYµ‡g weÁvcb cÖ`vb Kiv bv nBqv _vwK‡j; ev cÖ‡hvR¨ ‡¶‡Î, weÁvcb cÖKvwkZ nIqvi Zvwi‡L `icÎ `wjj cÖ¯‘Z bv nBqv _vwK‡j ev m¤¢ve¨ `icÎ `vZvev †Kv‡Ukb`vZvi

I LNJ (2012)

Aby‡iv‡a Dnv cÖvwßmva¨ Kiv bv †M‡j; ev m¤¢ve `icÎ `vZvi Aby‡iv‡a h_vmg‡q e¨vL¨v cÖ`vb bv Kiv nB‡j; ev ‡Kej GKwU ¯^ímsL¨K cÖ¯‘Kvix cÖwZôvb KZ…©K c~iY Kiv m¤¢e, GBiƒc KvwiMwi wewb‡`©k cª¯‘Z Kiv nB‡j ; ev cÖKvwkZ weÁvc‡bi kZ© †gvZv‡eK, cÖ‡hvR¨ †¶‡Î, cÖvK-`icÎ mf¨ Abyôvb Kwi‡Z e¨_© nB‡j ev D³ mfvi Rb¨ c~e© wbav©wiZ ZvwiL, ¯’vb I mgq cwiewZ©Z nB‡j h_vmg‡q Dnv m¤¢ve¨ `icÎ `vZvMY‡K AewnZ bv Kivi Kvi‡Y m¤¢ve¨ KwZcq `icÎ`vZv mfvq ‡hvM`vb Kwi‡Z m¶g bv nB `icÎ AvnŸv‡bi weÁvc‡Y cÖ`Ë wee„wZ †gvZv‡eK `icÎ D¤§y³ Kwi‡Z e¨_© nB‡j ev `icÎ Db¥y³Ki‡Yi mgq Am½Z AvPiY Kiv nB‡j; wek„•Ljvfv‡e cwiPvjbvi d‡j GK ev GKvwaK `icÎ wbav©wiZ mg‡qi c~‡e©B Db¥y³µ‡g Dnvi †MvcbxqZv dvumKwiqv †`I cÖKvk¨ mfvq `icÎ Db¥y³Ki‡Y e¨_© nB‡j ; ev `icÎ `vwL‡ji Rb¨wbav©wiZ mg‡qi c~‡e© cÖvß mK Db¥y³KiY Kiv bv nB‡j ; ev g~j¨vqbKwgwU `icÎ `wj‡j Dwj-wLZ wbY©vqK‡Ki Av‡jv‡K`icÎ g~j¨vqb Kwi‡Ze¨_© nB (10) µqKvix KZ…©K K…ZKvh© `icÎ`vZvi mwnZ wb‡Mvwm‡qk‡bi D‡`¨M MÖnY Kiv nB‡j (11) `ybx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡ (12) ΓwUc~Y© ev Ab¨vh¨fv‡e Pzw³ m¤úv`b Kiv nBqv‡Q ewjqv Kwievi m½Z KviY _vwK‡j ; ev (13) `yB ch©vqwewkó `icÎ c×wZ cÖ‡qv‡Mi †¶‡Î, cÖ_g ch©v‡`icÎ g~j¨vq‡bi mgq cÖ‡Z¨K e¨w³i wbKU nB‡Z e¨vL¨ MÖn‡Yi mgq †MvcbxqZv i¶vi kZ© jsNb Kiv nB‡j| (M) cÖ¯Íve `vwL‡ji Aby‡iva Ávc‡bi †¶‡Î- (1) KvwiMwi cÖ¯Ív‡ei Lvg Db¥y³Ki‡Yi ci µqKvix †MvcbxqZv i¶v Kwi‡Z e¨_© nB‡j; ev (2) KvwiMwi cÖ¯Íve Db¥y³Ki‡Yi mgq Avw_©K cÖ¯Íve †Lvjv nB‡j ; (3) cÖ¯Íve `wj‡j Dwj-wLZ wbYv©q‡Ki wfwˇZ cÖ¯Íve g~j¨vqb Kw e¨_© nB‡j ; ev (4) g~j¨ †hLv‡b g~j¨vq‡bi GKwU wbqvgK (factor), †mB‡¶‡Î wb‡Mvwm‡qk‡bi mgq Av‡e`bKvix‡K ZrcÖ¯ÍvweZ wd‡mi nvi cwieZ©‡bi Rb¨ Pvc cÖ‡qvM Kiv nB‡j ; ev (5) `ybx©wZ ev PµvšÍg~jK Kvh©Kjvc m¤ú‡K© m‡›`n nB‡j; ev (6) Ab¨vh¨ I c¶cvwZZ¡c~Y©fv‡e Pzw³ m¤úv`b Kiv nBqv‡Q ewjqvaviYv Kwievi m½Z KviY _vwK‡j|Ó 21. Initially the complaint was filed by the respondent No. 8 before the respondent no.6, the Procuring Entity, against BGP Inc., CNPC who is claiming to be the integral part of BGP (Bangladesh)

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BGP Inc., China National Petroleum Corporation Vs. Bangladesh and others (Farah Mahbub, J.)

International pursuant to letter dated 24.05.2010 (Annexure-F-1) contending, inter alia,-“We have been granted permission from the Board of investment (BOI) for opening a Branch Office in Bangladesh via BOI letter No BOI/R&1-1 (Com)/Branch/ 2935/09/2752 dated 25-11-2009 and 18 B permission from Bangladesh Bank via letter No. FEID/729/B960/2010-154 dated 25/01/2010 as BGP Inc. China National Petroleum Corporation BGP Inc. also registered with register of Joint Companies & Firms under No. F667 issue No. 34442-48 dated 25-02-2010 and Tax Identification Certificate from the Deputy Commissioner of Taxes No 176-2018105/Coy-17 dated 20-05-2010. To comply with these permission BGP Inc. China National Petroleum Corporation has been working in Bangladesh as Branch Office at 69/1 New Circular Road, Malibagh , Dhaka. p-120 ” 22. However, on perusal of Annexure-D it appears that EOI has been filed by BGP (Pakistan) International on behalf of BGP (Bangladesh) International.

Along with the EOI the said company also submitted the documents of experience, capacity as well as the Articles of Associations of BGP Inc., CNPC. 23. In this regard, it is the emphatic contention of the petitioner-company that though there is some unintentional anomally in the cover page of EOI but said EOI consists of the entire volume of documents wherefrom it is evident that BGP Inc., CNPC. is, in fact, making the proposal and that before filing RFP the petitioner-company has duly sent a letter of clarification. It is fact that accepting such anomally, as is apparent from the records, respondent no.6 vide letter dated 11.04.2010 short listed 8 (eight) contractors where CGG Veritas, France has been placed at serial no.4 and BGP (Bangladesh) International has been posted at serial No. 6. Neither CGG Veritas, France nor respondent no.8 within the four corners of it’s complaint raised objection against such short listing. The claim of the respondent no.8 squarely lies on the issue that since BGP (Bangladesh) International has been short listed as such RFP submitted by the petitioner-company on 10.06.2010 (Annexure-F) is unlawful, hence BGP (Bangladesh) International has been rightly declared as nonresponsive.

24. As has already been noted above, a complaint cannot be made by a sub-contractor against a short listed contractor in view of rule 56 of the Rules, 2008. However, in this regard Mr. Nurul Amin

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drawing attention to sub-rule 9 of rule 56 submits that alleging non-evaluation of RFP as per law on possible conspiracy the instant complaint has been lodged hence, it fulfils the criterias as have been set out in the said provision. Sub-rule 9 of rule 56 comes into play when the Evaluation Committee fails to evaluate “clfœ” as per “`icÎ `wj‡j D‡j-wLZ wbY©vq‡Ki Av‡jv‡K”. The said stage has not reached yet. The issue being agitated by respondent No. 8 is present-ing RFP by BGP Inc., CNPC for being a separate entity from BGP (Bangladesh) International. In view of the same the arguments so made by Mr. Amin is of no substance in the facts and circumstance of the case. The fact remains that Petrobangla considered the EOI of BGP (Bangladesh) International as appropriate, (Annexure-D) and short listed the same as contractor, whereas the Review Panel-1 declared the said contractor as non responsive on the count that BGP Inc., CNPC being a separate entity cannot file RFP. The said decision has been given without giving opportunity to BGP (Bangladesh) Internati-onal to represent their part of the case.

25. The present writ petition has been filed by BGP Inc., CNPC Their claim is that they are the integral part of BGP (Bangladesh) International on the basis of certain documents, enclosed with the EOI and tried to clarify the ambiguity with regard to the name of the company since BGP (Bangladesh) International has been short listed 26. No doubt, there is serious anomally over the ambiguity of the petitioner-company who filed RFP, which is still lying pending before the Evaluation Committee for consideration and above all as per ITC clause 5.1 filing RFP is limited to short list contractors only. As such, since BGP (Bangladesh) International has been declared non-responsive the said short-listed contractor is the appropriate aggrieved person to maintain this writ petition, not BGP Inc., CNPC. 27. Be that as it may, the respondent no.8 being a “sub-contractor” it’s right and interest lies with the short-listed contactor CGG veritas, France who does not appear to have authorized the said respondent to file complaint to the concern authority against BGP Inc., CNPC in order to oust BGP (Bangladesh) International without making it a party. Hence, has no locus standi to maintain the complaint before the Review Panel-1, respondent No. 3.

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28. The bid reaches its finality through stages; firstly, before the Procuring Entity, who selects the short listed contractors; then the RFP, submitted by those contractors, are evaluated by the Evaluation Committee “j§mÉ¡ue L¢j¢V” and then it is finally approved by the Approval Authority, “Ae¤−j¡ceL¡l£ LaѪfr” as defined in section 2(1) of the Act no.24 of 2006. In the present case, the Procuring Entity short listed 8 (eight) contractors and the RFP submitted by them are still lying pending for consideration before the Evaluation Committee, either to be declared responsive or non-responsive. Moreover, the allegation was against BGP (Bangladesh) International whose right to be declared responsive or nonresponsive has been adjudicated and disposed of by the respondent No. 3 without making it a party and without issuing notice providing opportunity to defend it’s part of the case by adducing documents, which is a flagrant violation of the principle of natural justice.

29. In view of the facts, circumstance, observations and findings made above the impugned order dated 10.02.2011 passed by the respondent no.3 is declared to have been passed without lawful authority and hence, of no legal effect.

30. However, CGG Veritas, France, a short listed company is at liberty to file a complaint afresh, if so desires and the respondent no. 3 is hereby directed to adjudicate the complaint, if so made, upon giving proper notice to BGP (Bangladesh) International, in accordance with law.

31. With the above observations this Rule is disposed of. There will be no order as to costs.

Ed.

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49

Bangladesh Statutes

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(ঙ)

‘‘aলাভজনক সংsা/pিত ান (Non Profit Organisation)’ aথ কাmানী আiন, 1994 (1994 সেনর 18 নং আiন) eর ধারা 28 eর aধীন সনদpাp কান pিত ান;

মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন o aধ ােদশ রিহতkেম eতd সংkাn আiন পুনঃpণয়েনর uেdেশ pণীত আiন

(চ)

‘‘আিথক in ু েমn’’ aথ সকল কাগুেজ বা iেলক িনক দিললািদ যাহার আিথক মূল রিহয়ােছ;

যেহতু মািনলnািরং o সংি aন ান aপরাধ pিতেরাধ eবং uহােদর শািsর িবধানসহ আনুষি ক িবষয়ািদ সmেক িবধান pণয়েনর uেdেশ মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন o aধ ােদশ রিহতkেম eতd সংkাn আiন পুনঃpণয়ন করা সমীচীন o pেয়াজনীয়;

(ছ)

‘‘আিথক pিত ান’’ aথ আিথক pিত ান আiন, 1993 (1993 সেনর 27 নং আiন) eর ধারা 2(খ) e সংjািয়ত আিথক pিত ান;

(জ)

‘‘আদালত’’ aথ sশাল জজ eর আদালত;

(ঝ)

‘‘ kাক’’ aথ ei আiেনর আoতায় আদালত কতৃ ক কান সmিt asায়ী িভিtেত সংি কতৃ পk বা আদালেতর িজmায় আনয়ন করা যাহা আদালত কতৃ ক চূ ড়াn িসdাn gহেণর মাধ েম িন িt করা হiেব;

(2) iহা 3 মাঘ, 1418 ব াb/16 জানুয়াির, 2012 ি sাb তািরখ হiেত কার কর হiয়ােছ বিলয়া গণ হiেব।

(ঞ)

‘‘gাহক’’ aথ বাংলােদশ ব াংক কতৃ ক সময় সময় সংjািয়ত কান ব িk বা ব িkবগ aথবা সtা বা সtাসমূহ;

2। সংjা – িবষয় বা pসংেগর পিরপnী কান িকছু না থািকেল, ei আiেন—

(ট)

‘‘ াs o কাmানী সবা pদানকারী’’ aথ কান ব িk বা ব বসা pিত ান যাহা aন কান আiেন সংjািয়ত করা হয় নাi eবং য বা যাহা কান তৃ তীয় পkেক িনmবিণত য কান সবা pদান কিরয়া থােকঃ

Published in Bangladesh Gazette Extra Ordinary Dated: 20 February, 2012.

Act No. 5 of 2012.

সেহতু eতddারা িনmরূপ আiন করা হiলঃ সংিkp িশেরানাম o pবতন --(1) ei আiন মািনলnািরং pিতেরাধ আiন, 2012 নােম aিভিহত হiেব।

(ক) ‘‘a থ বা সmিt পাচার’’ a থ— (1) দেশ িবদ মান আiেনর ব ত য় ঘটাiয়া দেশর বািহের aথ বা সmিt pরণ বা রkণ; বা (2) দেশর বািহের য aথ বা সmিtেত বাংলােদেশর sাথ রিহয়ােছ যাহা বাংলােদেশ আনয়ন যাগ িছল তাহা বাংলােদেশ আনয়ন হiেত িবরত থাকা; বা (3) িবেদশ হiেত pকৃ ত পাoনা দেশ আনয়ন না করা বা িবেদেশ pকৃ ত দনার aিতিরk পিরেশাধ করা; (খ)

‘‘aথ মূল sানাnরকারী’’ aথ eমন আিথক সবা যখােন সবা pদানকারী eকsােন নগদ টাকা, চক, aন ান আিথক in ু েমn (iেলক িনক বা aন িবধ) gহণ কের eবং aন sােন সুিবধােভাগীেক নগদ টাকা বা আিথক in ু েমn বা aন কানভােব সমপিরমাণ মূল pদান কের;

(গ)

ৃ aপরাধ ‘‘aপরাধলb আয়’’ aথ pত k বা পেরাkভােব সmk হiেত aিজত, udত ূ সmিt বা কােরা আয়tাধীন বা িনয়ntণাধীন e ধরেণর সmিt;

(ঘ)

‘‘aবরুd’’ aথ ei আiেনর আoতায় uপযুk কতৃ পk কতৃ ক কান সmিt asায়ী িভিtেত সংি কতৃ পk বা আদালেতর িনয়ntেণ আনয়ন করা যাহা আদালত কতৃ ক বােজয়াpকরেণর চূ ড়াn িসdাn gহেণর মাধ েম িন িt করা হiেব;

(1)

কান আiনী সtা pিত ার eেজn িহসােব দািয়t পালন,

(2)

কান আiনী সtার পিরচালক, সিচব িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা বা aংশীদারী ব বসােয় aংশীদার িহসােব দািয়t পালন aথবা সমপর ােয়র aন কান দািয়t পালন,

(3)

কান আiনী সtার িনবিnত eেজn িহসােব দািয়t পালন,

(4)

কান ekেpস ােsর ািs িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা,

(5)

নিমনী শয়ারেহাlার বা aন কান ব িkর পিরবেত পিরচালক িহসােব দািয়t পালন বা aন কান ব িkেক িনেয়াগ pদান করা,

(ঠ) ‘‘তদnকারী সংsা’’ aথ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) eর aধীন গ ত দু নীিত দমন কিমশন; eবং কিমশেনর িনকট হiেত তদেnর uেdেশ kমতাpাp কিমশেনর কান কমকতা বা aন আiেন যাহা িকছু i থাkক না কন, aন কান তদnকারী সংsার ক মকতাo iহার anভু k হiেবন; (ড) ‘‘নগদ টাকা’’ aথ কান দেশর যথাযথ মুdা িহসােব uk দশ কতৃ ক sীকৃ ত কান ধাতব মুdা o কাগেজর মুdা eবং ােভলাস চক, পাsাল নাট, মািন aডার, চক, ব াংক াফট, িবয়ারার বn, লটার aব

I LNJ (2012)

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kিডট, িবল aব ekেচ , kিডট কাড, ডিবট কাড বা pিমজির নাটo uহার anভু k হiেব;

আiন বা আiেনর aধীন ব াংক িহসােব pিতি ত য কান pিত ানo iহার anভু k হiেব;

(ঢ) ‘‘িন িt’’ aথ kয়েযাগ , dত পচনশীল aথবা িনিদ সমেয়র পর ব বহার aেযাগ সmিt িবkয় বা aন কান আiেনর aধীন ংস কিরবার uপেযাগী সmিt ংসকরণ বা আiনসmতভােব pকাশ িনলােমর মাধ েম হsাnরo anভু k হiেব;

(প) ‘‘মািন চ ার’’ aথ Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 3 eর aধীন বাংলােদশ ব াংক কতৃ ক aনুেমািদত বেদিশক মুdা লনেদনকারী ব িk বা pিত ান;

(ণ) ‘‘বােজয়াp’’ aথ ধারা 17 eর আoতায় কান আদালেতর আেদেশর মাধ েম কান সmিtর st sায়ীভােব রাে র aনুkেল আনয়ন করা;

(ফ) ‘‘মািনলnািরং’’ aথ—

(ত) ‘‘বাংলােদশ ব াংক’’ aথ Bangladesh Bank Order, 1972 (P.O. No. 127 of 1972) eর dারা sািপত Bangladesh Bank;

ৃ সmিt jাতসাের (a) িনmবিণত uেdেশ aপরােধর সােথ সmk sানাnর বা রূপাnর বা হsাnরঃ (1)

(থ) ‘‘বীমাকারী’’ aথ বীমা আiন, 2010 (2010 সেনর 13 নং আiন) eর ধারা 2(25) e সংjািয়ত বীমাকারী; (দ) ‘‘ বসরকাির unয়ন সংsা (Non Government Organisation)’’ aথ Societies Registration Act, 1860 (Act No. XXI of 1860), Voluntary Social Welfare Agen-cies (Registration and Control) Ordinance, 1961 (Ordinance No. XLVI of 1961), Foreign Donations (Voluntary Activities) Regula-tion Ordinance, 1978 (Ordinance No. XLVI of 1978), Foreign Contrib-utions (Regulation) Ordin-ance, 1982 (Ordinance No. XXXI of 1982) eবং মাiেkােkিডট রগুেলটরী aথির আiন, 2006 (2006 সেনর 32 নং আiন) eর আoতায় aনুেমািদত বা িনবিnত pিত ান যাহারা— (1) sানীয় u স হiেত তহিবল (ঋণ, aনুদান, আমানত) gহণ কের বা aন েক pদান কের; eবং/aথবা (2) য কান ধরেণর বেদিশক সাহায কের;(ধ) ‘‘ বেদিশক মুdা’’ aথ Regulation Act, 1947 1947) eর section 2(d) exchange;

বা ঋণ বা aনুদান gহণ Foreign Exchange (Act No. VII of ত সংjািয়ত foreign

(ধ) “ বেদিশক মুdা” Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 2(d) ত সঙjািয়ত foreign exhange; (ন) ‘‘ব াংক’’ aথ ব াংক কাmানী আiন, 1991 (1991 সেনর 14 নং আiন) eর ধারা 5(ণ) e সংjািয়ত ব াংক কাmানী eবং anয কান

aপরাধলb আেয়র aৈবধ pকৃ িত, u স, aবsান, মািলকানা o িনয়ntণ গাপন বা ছdাবৃt করা; aথবা

ৃ aপরাধ সংগঠেন জিড়ত কান ব িkেক আiনগত (2) সmk ব বsা gহণ হiেত রkার uেdেশ সহায়তা করা; (আ) বধ বা aৈবধ uপােয় aিজত aথ বা সmিt িনয়ম বিহভূ তভােব িবেদেশ পাচার করা; (i) jাতসাের aপরাধলb আেয়র aৈবধ u স গাপন বা আড়াল কিরবার uেdেশ uহার হsাnর, িবেদেশ pরণ বা িবেদশ হiেত বাংলােদেশ pরণ বা আনয়ন করা; (ঈ) কান আিথক লনেদন eiরূপভােব সmn করা বা সmn কিরবার চ া করা যাহােত ei আiেনর aধীন uহা িরেপাট কিরবার pেয়াজন হiেব না; ৃ aপরাধ সংঘটেন pেরািচত করা বা সহায়তা কিরবার (u) সmk aিভpােয় কান বধ বা aৈবধ সmিtর রূপাnর বা sানাnর বা হsাnর করা; ৃ aপরাধ হiেত aিজত জানা সেtto ei ধরেণর সmিt (ঊ) সmk gহণ, দখেল নoয়া বা ভাগ করা; (ঋ) eiরূপ কান কার করা যাহার dারা aপরাধলb আেয়র aৈবধ u স গাপন বা আড়াল করা হয়; ৃ (e) uপের বিণত য কান aপরাধ সংঘটেন aংশgহণ, সmk থাকা, aপরাধ সংঘটেন ষড়যnt করা, সংঘটেনর pেচ া aথবা সহায়তা করা, pেরািচত করা বা পরামশ pদান করা; (ব) ‘‘িরেপাট pদানকারী সংsা’’ aথ— (a)

ব াংক;

(আ) আিথক pিত ান; (i)

বীমাকারী;

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মািন চ ার;

(ক)

iহা কান aপরাধ হiেত aিজত সmদ,

(u)

aথ aথবা aথমূল pরণকারী বা sানাnরকারী য কান কাmানী বা pিত ান;

(খ)

iহা কান সntাসী কাের , কান সntাসী সংগঠনেক বা কান সntাসীেক aথায়ন;

(ঊ) বাংলােদশ ব াংেকর aনুমিতkেম ব বসা পিরচালনাকারী aন কান pিত ান; (ঋ) (1)

(e)

sক িডলার o sক bাকার,

(2)

পাটেফািলo ম ােনজার o মােচn ব াংকার,

(3)

িসিকuির কাsিডয়ান,

(4)

সmদ ব বsাপক;

(1)

(3)

aলাভজনক সংsা/pিত ান Organisation) ;

(Non

‘‘সমবায় সিমিত’’ aথ সমবায় সিমিত আiন, 2001 (2001 eর 47 নং আiন) eর ধারা 2(20) e সংjািয়ত pিত ান যাহা আমানত gহণ বা ঋণ pদান কােজ িনেয়ািজত;

(ল)

‘‘সmিt’’ aথ দেশ বা দেশর বািহের aবিsত— (a)

Profit

িরেয়ল eেsট ডেভলপার;

(o)

মূল বান ধাতু বা পাথেরর ব বসা pিত ান;

(ঔ)

াs o কাmানী সবা pদানকারী;

(aa) আiনজীবী, নাটারী, aন ান আiন পশাজীিব eবং eকাuেnn; (aআ) সরকােরর aনুেমাদনkেম বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, িবjিp জারীর মাধ েম ঘািষত aন কান pিত ান;

(ম)

(য)

‘‘িরেয়ল eেsট ডেভলপার’’ aথ িরেয়ল eেsট unনয়ন o ব বsাপনা আiন, 2010 (2010 সেনর 48 নং আiন) eর ধারা 2(15) e সংjািয়ত য কান িরেয়ল eেsট ডেভলপার বা uহার কমকতা বা কমচারী aথবা eেজn যাহারা জিম, বাসা, বািণিজ ক ভবন eবং াটসহ iত ািদর িনমাণ o kয়-িবkেয়র সিহত জিড়ত; ‘‘সtা’’ aথ কান আiনী pিত ান, সংিবিধবd সংsা, বািণিজ ক বা aবািণিজ ক pিত ান, aংশীদারী কারবার, সমবায় সিমিতসহ eক বা eকািধক ব িkর সমnেয় গ ত য কান সংগঠন; ‘‘সেnহজনক লনেদন’’ aথ eiরূপ লনেদন— (1)

যাহা sাভািবক লনেদেনর ধরণ হiেত িভn;

(2)

যi লনেদন সmেক eiরূপ ধারণা হয় য,

য কান pকৃ িতর, দৃশ মান, aদৃশ মান, sাবর বা asাবর সmিt; বা

(আ) নগদ টাকা, iেলক িনক বা িডিজটালসহ aন য কান pকৃ িতর দিলল বা in ু েমn যাহা কান সmিtর মািলকানা st বা মািলকানা sেt কান sাথ িনেদশ কের;

(3) সমবায় সিমিত; (ঐ)

যাহা ei আiেনর uেdেশ পূরণকেl, বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, জারীকৃ ত িনেদশনায় বিণত aন কান লনেদন বা লনেদেনর pেচ া;

(র)

(2) বসরকাির unয়ন সংsা (Non Govern-ment Organisation) ;

(ভ)

I LNJ (2012)

(শ)

ৃ aপরাধ (Predicate offence) ’’ arথ িনেm ‘‘সmk uিlিখত aপরাধ, যাহা দেশ বা দেশর বািহের সংঘটেনর মাধ েম aিজত কান aথ বা সmদ লnািরং করা বা কিরবার চ া করা, যথাঃ— (1)

দু নীিত o ঘুষ;

(2)

মুdা জালকরণ;

(3)

দিলল দsােবজ জালকরণ;

(4)

চঁ াদাবািজ;

(5)

pতারণা;

(6)

জািলয়ািত;

(7)

aৈবধ aেstর ব বসা;

(8)

aৈবধ মাদক o নশা জাতীয় dেব র ব বসা;

(9)

চারাi o aন ান dেব র aৈবধ ব বসা;

(10) aপহরণ, aৈবধভােব আটকাiয়া রাখা o পণবnী করা; (11) খুন, মারাtক শারীিরক kিত; (12) নারী o িশশু পাচার; (13) চারাকারবার ;

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Bangladesh Statutes

(14) দশী o িবেদশী মুdা পাচার;

(3)

‘‘িসিকuির কাsিডয়ান’’ aথ িসিকuির জ o ekেচ কিমশন (িসিকuির কাsিডয়াল সবা) িবিধমালা, 2003 eর িবিধ 2 (ঞ) e সংjািয়ত pিত ান;

(4)

‘‘সmদ ব বsাপক’’ aথ িসিকuির জ o ekেচ কিমশন (িমuচু য়াল ফাn) িবিধমালা, 2001 eর িবিধ 2 (ধ) e সংjািয়ত pিত ান;

(15) চু ির বা ডাকািত বা দসু তা বা জলদসু তা বা িবমান দসু তা; (16) মানব পাচার; (17) যৗতু ক; (18) চারাচালানী o শুl সংkাn aপরাধ; (19) কর সংkাn aপরাধ; (20) মধাst লংঘন; (21) সntাস o সntাসী কাের aথ যাগান; (22)

ভজাল বা st লংঘন কের পণ u পাদন;

(23) পিরেবশগত aপরাধ; (24)

যৗন িনপীড়ন ( Sexual Exploitation) ;

(25) পুিঁ জ বাজার সmিকত মূল সংেবদনশীল তথ জনসmেখ ু pকািশত হoয়ার পূের তাহার কােজ লাগাiয়া শয়ার লনেদেনর মাধ েম বাজার সুিবধা gহণ o ব িkগত বা pািত ািনক সুিবধার লেk বাজার িনয়ntেণর চ া করা (Insider Trading & Market Manipulation); (26) সংঘবd aপরাধ (Organised Crime) বা সংঘবd aপরাধী দেল aংশgহণ; (27) ভীিত pদশেনর মাধ েম aথ আদায়; eবং (28) ei আiেনর uেdশ পূরণকেl বাংলােদশ ব াংক কতৃ ক সরকােরর aনুেমাদনkেম গেজেট pjাপেনর মাধ েম ঘািষত ৃ aপরাধ; aন য কান সmk (ষ)

‘‘ sশাল জজ’’ aথ Criminal Law (Amendment) Act, 1958 (Act No. XL of 1958) eর section 3 eর aধীন িনযুk Special Judge;

(স)

(1)

(2)

‘‘sক িডলার o sক bাকার’’ aথ িসিকuির জ o ekেচ জ কিমশন (sক িডলার, sক bাকার o aনুেমািদত pিতিনিধ) িবিধমালা, 2000 eর যথাkেম িবিধ 2 (ঝ) o 2 (ঞ) e সংjািয়ত pিত ান; ‘‘ পাটেফািলo ম ােনজার o মােচn ব াংকার’’ aথ িসিকuির জ o ekেচ কিমশন (মােচn ব াংকার o পাটেফািলo ম ােনজার) িবিধমালা, 1996 eর যথাkেম িবিধ 2 (চ) o 2 (ঞ) e সংjািয়ত pিত ান;

(হ)

52

‘‘হাiেকাট িবভাগ’’ aথ বাংলােদশ সুpীম কােটর হাiেকাট িবভাগ।

3। আiেনর pাধান ।-- ei আiেনর ধারা 9 eর িবধান সােপেk আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkক না কন ei আiেনর িবধানাবলী কার কর থািকেব। 4। মািনলnািরং aপরাধ o দ --(1) ei আiেনর uেdশ পূরণকেl, মািনলnািরং eক aপরাধ বিলয়া গণ হiেব। (2) কান ব িk মািনলnািরং aপরাধ কিরেল বা মািনলnািরং aপরাধ সংঘটেনর চ া, সহায়তা বা ষড়যnt কিরেল িতিন aনূ ন 4 (চার) ব সর eবং aনিধক 12 (বার) ব সর পর n কারাদে দি ত হiেবন eবং iহার aিতিরk aপরােধর সােথ সংি সmিtর িdগুন মূেল র সমপিরমাণ বা 10 (দশ) লk টাকা পর n, যাহা aিধক, aথদে দি ত হiেবন। (3) আদালত কান aথদ বা দে র aিতিরk িহসােব দি ত ব িkর সmিt রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত ৃ aপরােধর পািরেব যাহা pত k বা পেরাkভােব মািনলnািরং বা কান সmk ৃ বা সংি । সােথ সmk (4) ei ধারার aধীন কান সtা মািনলnািরং aপরাধ কিরেল সংি সmিtর মূেল র aনূ ন িdগুণ aথবা 20 (িবশ) লk টাকা, যাহা aিধক হয়, জিরমানা করা যাiেব eবং uk pিত ােনর িনবnন বািতলেযাগ হiেব। ৃ aপরােধ aিভযুk বা দি ত হoয়া মািনলnািরং eর (5) সmk কারেণ aিভযুk বা দ pদােনর পূরশত হiেব না। 5।aবরুdকরণ বা kাক আেদশ লংঘেনর দ -- কান ব িk ei আiেনর aধীন কান aবরুdকরণ বা kাক আেদশ লংঘন কিরেল িতিন aনিধক 3 (িতন) ব সর পর n কারাদ বা aবরুdকৃ ত বা kাক আেদশকৃ ত সmিtর মূেল র সমপিরমাণ aথ দ বা uভয় দে দি ত হiেবন। 6। তথ pকােশর দ --(1) কান ব িk aস uেdেশ তদn সmিকত কান তথ বা pাসংিগক aন কান তথ কান ব িk, সংsা বা সংবাদ মাধ েম pকাশ কিরেবন না। (2) ei আiেনর aধীন kমতাpাp কান ব িk, pিত ান বা eেজn কতৃ ক চাkরীরত বা িনেয়াগরত থাকা aবsায় িকংবা চাkরী বা িনেয়াগজিনত চু িk aবসায়েনর পর ত কতৃ ক সংগৃহীত, pাp, আহিরত, jাত কান তথ ei আiেনর uেdশ পূরণ ব তীত aন কান uেdেশ ব বহার বা pকাশ করা হiেত িবরত থািকেবন।

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(3) কান ব িk uপ-ধারা (1) o (2) eর িবধান লংঘন কিরেল িতিন aনিধক 2 (দুi) ব সর পর nত কারাদ বা aনূ 50 (প াশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন। 7। তদেn বাধা বা aসহেযািগতা, pিতেবদন pরেণ ব থতা বা তথ সরবরােহ বাধা দoয়ার দ ।--(1) কান ব িk ei আiেনর aধীন— (ক)

কান তদn কার kেম তদnকারী কমক তােক বাধা pদান কিরেল বা সহেযািগতা pদােন asীকৃ িত jাপন কিরেল; বা

(খ) যুিkসংগত কারণ ব িতেরেক যািচত কান pিতেবদন pরেণ বা তথ সরবরােহ asীকৃ িত jাপন কিরেল; —িতিন ei আiেনর aধীন aপরাধ কিরয়ােছন বিলয়া গণ হiেবন। (2) কান ব িk uপ-ধারা (1) eর aধীন aপরােধ দাষী সাব s হiেল িতিন aনিধক 1 (eক) ব সর পর n কারাদ বা aনূ 25 (পঁিচশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন। 8। িমথ া তথ pদােনর দ --(1) কান ব িk jাতসাের aেথর u স বা িনজ পিরিচিত বা িহসাব ধারেকর পিরিচিত সmেক বা কান িহসােবর সুিবধােভাগী বা নিমনী সmেক কানরূপ িমথ া তথ pদান কিরেবন না। (2) কান ব িk uপ-ধারা (1) eর িবধান লংঘন কিরেল িতিন aনিধক 3 (িতন) ব সর পর n কারা দ বা aনূ 50 (প াশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন। 9। aপরােধর তদn o িবচার --(1) aন আiেন যাহা িকছু i থাkক না কন ei আiেনর aধীন aপরাধসমূহ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) eর aধীন তফিসলভু k aপরাধ গেণ দু নীিত দমন কিমশন বা কিমশন হiেত তদুেdেশ kমতাpাp কিমশেনর কান কমকতা বা দু নীিত দমন কিমশন হiেত kমতাpাp aন কান তদnকারী সংsার কমকতা কতৃ ক তদnেযাগ হiেব। (2) ei আiেনর aধীন aপরাধসমূহ Criminal Law (Amendment) Act, 1958 (Act XL of 1958) eর section 3 eর aধীন িনযুk sশাল জজ কতৃ ক িবচার হiেব। (3) aিভযুk ব িkর সmিt aনুসnান o সনাk-করেণর িনিমt দু নীিত দমন কিমশন ei আiেনর পাশাপািশ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) e pদt kমতাo pেয়াগ কিরেত পািরেব eবং দু নীিত দমন কিমশন হiেত kমতাpাp aন কান তদnকারী সংsার কমকতা ei আiেনর পাশাপািশ aন আiেন pদt kমতাo pেয়াগ কিরেত পািরেব। 10। sশাল জজ eর িবেশষ eখিতয়ার --(1) sশাল জজ ei আiেনর aধীন aপরােধর জন িন ধািরত দ আেরাপ eবং ktমত,

I LNJ (2012)

aিধকতর তদn, সmিt aবরুdকরণ, kাক, বােজয়াpকরণ আেদশসহ আবশ ক aন কান আেদশ pদান কিরেত পািরেবন। (2) sশাল জজ ei আiেনর aধীন দােয়রকৃ ত কান মামলায় aিধকতর তদেnর আেদশ pদান কিরেল ukরূপ আেদেশ তদnকারী কমকতােক তদn pিতেবদন দািখেলর জন eক সময়সীমা িনিদ কিরয়া িদেবন, যাহা 6 (ছয়) মােসর aিধক হiেব না। 11। aপরােধর আমলেযাগ তা, a-আেপাষ- যাগ তা o aজািমনেযাগ তা --ei আiেনর aধীন aপরাধসমূহ আমলেযাগ (cognizable) , a-আেপাষেযাগ (non compoundable) eবং a-জািমনেযাগ (non bailable) হiেব। 12। দু নীিত দমন কিমশেনর aনুেমাদেনর aপিরহার তা --(1) ফৗজদাির কার িবিধ বা আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkক না কন, দু নীিত দমন কিমশেনর aনুেমাদন ব িতেরেক কান আদালত ei আiেনর aধীন কান aপরাধ িবচারাথ আমেল gহণ (cognizance) কিরেবন না। (2) ei আiেনর aধীন কান aপরােধর তদn সমাp হiবার পর তদnকারী কমকতা আদালেত pিতেবদন দািখল কিরবার পূের কিমশেনর পূরানুেমাদন gহণ কিরেবন eবং কিমশন কতৃ ক pদt aনুেমাদন পেtর eক কিপ pিতেবদেনর সিহত আদালেত দািখল কিরেবন। 13।--জািমন সংkাn িবধান --ei আiেনর aধীন aিভযুk কান ব িkেক জািমেন মুিk দoয়া যাiেব, যিদ— (ক) তাহােক জািমেন মুিk দoয়ার আেবদেনর uপর aিভেযাগকারী পkেক শুনানীর সুেযাগ দoয়া হয়; eবং (খ) তাহার িবরুেd আনীত aিভেযােগ িতিন দাষী সাব s হoয়ার যুিkস ত কারণ রিহয়ােছ মেম আদালত সn না হন; aথবা (গ) িতিন নারী, িশশু বা শারীিরকভােব িবকলা eবং তাহােক জািমেন মুিk দoয়ার কারেণ ন ায় িবচার িবি ত হiেব না মেম আদালত সn হন। 14। সmিtর aবরুdকরণ (Freezing) বা kাক (Attachment) আেদশ --(1) দু নীিত দমন কিমশন বা ত কতৃ ক kমতাpাp কান ব িk বা সংsার িলিখত আেবদেনর িভিtেত আদালত দেশ বা দেশর বািহের aবিsত মািনলnািরং aপরাধ বা aন কান aপরােধর সিহত ৃ সmিt aবরুdকরণ বা kাক আেদশ pদান কিরেত পািরেব। সmk (2) uপ-ধারা (1) eর aধীন দু নীিত দমন কিমশন বা ত কতৃ ক kমতাpাp কান ব িk বা সংsা কান সmিtর aবরুdকরণ বা kাক আেদেশর জন আদালেত িলিখত আেবদন দািখেলর সময় uহােত িনmবিণত তথ ািদ uেlখ কিরেব, যথাঃ— (ক)

aবরুdকরণ বা kাক আেদেশর িনিমt সmিtর পূ ণ িববরণ;

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Bangladesh Statutes

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aবরুdকরণ বা kাককৃ ত সmিtেত aিভযুk ব িk বা সtার কান st, sাথ বা মািলকানা নাi; eবং

(খ)

সmিt মািনলnািরং বা aন কান aপরােধর জন kাকেযাগ eর সপেk যুিk o pাথিমক pমাণািদ;

(ঘ)

(গ)

pাথীত আেবদন মাতােবক আদালত কতৃ ক আেদশ pদান করা না হiেল aিভেযাগ িন িtর পূেরi সmিt aন t হsাnর বা বহাত হiবার আশংকা।

(ঙ) aবরুdকরণ বা kাককৃ ত সmিtেত আেবদনকারীর st, sাথ o মািলকানা রিহয়ােছ।

(3) uপ-ধারা (1) eর aধীন কান aবরুdকরণ বা kাক আেদশ pদান করা হiেল আদালত সmিtর পূ ণ িববরণসহ িবষয় সরসাধারেণর aবগিতর জন সরকাির গেজেট eবং aনূ ন 2 (দুi) বহুল pচািরত জাতীয় দিনক পিtকায় [1 (eক) বাংলা o 1 (eক) iংেরজী] িবjিp আকাের pচার কিরেব। (4) ei ধারার aধীন aবরুdকরণ বা kাক আেদেশ aিভযুk ব িkর নাম, িপতা, মাতার নাম, sামী বা stীর নাম, জাতীয়তা, পদবী (যিদ থােক), পশা, ট াk পিরিচিত নmর (TIN) , বতমান o sায়ী কানা eবং aন কান পিরিচিত, যতদূর সmব, uেlখ থািকেব; তেব, ei সকল তেথ র সামান k -িবচু িতর কারেণ ei আiেনর িবধান কার কর করা বাধাgs হiেব না। (5) uপ-ধারা (6) eর িবধান সােপেk, ei ধারার aধীন কান ব িkর সmিt aবরুdকরণ বা kােকর জন আদালত আেদশ pদান কিরেল আেদশ কার কর থাকাকালীন, আদালত কতৃ ক িভnরূপ কান আেদশ pদান করা না হiেল, uk সmিt কানভােব বা pকাের aন t হsাnর, uk সmিt সংি কান pকার লনেদন বা uk সmিtেক কানভােব দায়যুkত করা যাiেব না। (6) কান ব িkর ব াংক eকাun aবরুdকরণ আেদশ কার কর থাকা aবsায় uk আেদেশ িভnরূপ uেlখ না থািকেল, uk ব িk pাপ হiয়ােছ eiরূপ সমুদয় aথ তাহার aবরুd ব াংক eকাuেn জমা করা যাiেব। 15। aবরুdকৃ ত বা kাককৃ ত সmিt ফরত pদান --(1) ধারা 14 eর aধীন আদালত কান সmিt aবরুdকরণ বা kাক আেদশ pদান কিরেল, aিভযুk ব িk বা সtা ব তীত aন কান ব িk বা সtার uk সmিtেত কান sাথ থািকেল িতিন বা uk সtা uহা ফরত পাiবার জন aবরুdকরণ বা kাক আেদশ pচােরর তািরখ হiেত 30 (িtশ) িদেনর মেধ আদালেত আেবদন কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান ব িk বা সtা আদালেত আেবদন কিরেল আেবদনপেt িনmবিণত তথ ািদ uেlখ কিরেত হiেব, যথাঃ— (ক)

ৃ aপরােধর সিহত uk সmিtর মািনলnািরং বা কান সmk pত k বা পেরাkভােব কান সংি তা নাi;

(3) ধারা 14 eর uপ-ধারা (5) e যাহা িকছু i থাkক না কন, ei ধারার aধীন সmিt ফরত পাiবার জন আদালত কান আেবদনpাp হiেল আেবদনকারী, তদnকারী সংsা o aিভযুk ব িk বা সtােক শুনানীর সুেযাগ pদান কিরেবন eবং শুনানী aেn, pেয়াজনীয় কাগজািদ পর ােলাচনাkেম o ৃ রা কতৃ ক বিণত সmিtেত pত k বা পেরাkভােব মািনলnািরং বা সmk ৃ gহণেযাগ সেnেহর কান কারণ uপsাপন না aপরােধর সােথ সmkতার কিরেল, uপ-ধারা (1) eর aধীন দািখলকৃ ত আেবদনকারীর আেবদন সmেক আদালত সn হiেল aবরুdকরণ বা kাক আেদশ বািতলkেম সmিt , আেদেশ uিlিখত িনধািরত সমেয়র মেধ , আেবদনকারীর aনুkেল হsাnেরর আেদশ pদান কিরেবন। 16। সmিtর aবরুdকরণ বা kাক আেদেশর িবরুেd আপীল।-(1) ei আiেনর aধীন আদালত কান সmিtর aবরুdকরণ বা kাক আেদশ pদান কিরেল ukরূপ আেদেশর িবরুেd সংkb ু ব িk বা সtা 30 (িtশ) িদেনর মেধ হাiেকা ট িবভােগ আপীল কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান আপীল দােয়র করা হiেল আপীল আদালত পkবৃnেক, শুনানীর জন যুিkস ত সময় িদয়া, শুনানী aেn যiরূপ uপযুk মেন কিরেব সiরূপ আেদশ pদান কিরেত পািরেব। (3) ধারা 14 eর aধীন কান সmিtর িবষেয় আদালত কতৃ ক pদt aবরুdকরণ বা kাক আেদেশর িবরুেd কান সংkb ু ব িk বা সtা আপীল কিরেল eবং আপীল আদালত কতৃ ক িভnরূপ কান আেদশ pদান করা না হiেল আপীল িন িt না হoয়া পর n ukরূপ aবরুdকরণ বা kাক আেদশ কার কর থািকেব। 17। সmিtর বােজয়াpকরণ --(1) ei আiেনর aধীন কান ব িk বা সtা মািনলnািরং aপরােধ দাষী সাব s হiেল আদালত aপরােধর ৃ দেশ বা দেশর বািহের aবিsত য কান সিহত pত k বা পেরাkভােব সmk সmিt রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব। (2) uপ-ধারা (1) e যাহা িকছু i থাkক না কন ei আiেনর aধীন মািনলnািরং aপরােধর সােথ সংি কান aনুসnান o তদn বা িবচার কার kম চলাকালীন সংি আদালত pেয়াজনেবােধ দেশ বা দেশর বািহের aবিsত য কান সmিt রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব।

(খ)

আেবদনকারী pত k বা পেরাkভােব aিভযুk মািনলnািরং ৃ aপরােধর সােথ সmk ৃ নন; বা aন কান সmk

(3) ei আiেনর aধীন মািনলnািরং aপরােধর জন দাষী সাব s কান ব িk পলাতক থািকেল বা aিভেযাগ দািখেলর পর মৃতু বরণ কিরেল ৃ সmিto রাে র aনুkেল আদালত uk ব িkর aপরােধর সিহত সmk বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব।

(গ)

আেবদনকারী aিভযুেkর নিমনী নন বা aিভযুেkর পেk কান দািয়t পালন কিরেতেছন না;

ব াখ া।— যথাযথ কার ব বsা gহণ করা সেtto gফতারী পেরায়ানা জারীর তািরখ হiেত 6 (ছয়) মােসর মেধ

55

Bangladesh Statutes

I LNJ (2012)

যিদ aিভযুk ব িk আদালেত আtসমপণ কিরেত ব থ হয় বা uk সমেয়র মেধ তাহােক gফতার করা না যায় তাহা হiেল uk ব িk ei ধারার uেdশ পূরণকেl পলাতক বিলয়া গণ হiেবন।

সmিtেত দাষী ব িk বা সtা ব তীত aন কান ব িk বা সtার কান st, sাথ বা aিধকার থািকেল িতিন বা uk সtা uহা ফরত পাiবার জন বােজয়াpকরেণর িবjিp পিtকায় সরেশষ pচােরর তািরখ হiেত 30 (িtশ) িদেনর মেধ আদালেত আেবদন কিরেত পািরেবন।

(4) ei ধারার aধীন আদালত কতৃ ক কান সmিt বােজয়াp কিরবার আেদশ pদােনর পূের িকংবা মামলা বা aিভেযাগ দােয়র কিরবার পূের যিদ কান ব িk বা সtা সরল িব ােস eবং uপযুk মূল pদান সােপেk বােজয়ােpর জন আেবদনকৃ ত সmিt kয় কিরয়া থােকন eবং আদালতেক িতিন বা uk সtা ei মেম সn কিরেত সkম হন য, িতিন বা uk সtা ৃ বিলয়া jাত িছেলন না eবং uk সmিt মািনলnািরং eর সিহত সmk িতিন বা uk সtা সরল িব ােস সmিt kয় কিরয়ািছেলন, তাহা হiেল আদালত uk সmিt বােজয়াp কিরবার আেদশ pদান না কিরয়া uহার িবkয়লb aথ রা ীয় কাষাগাের, আদালত কতৃ ক িনধািরত সময়সীমার মেধ , জমা দoয়ার জন দাষী সাব s ব িk বা সtােক িনেদশ িদেত পািরেব।

(2) uপ-ধারা (1) eর aধীন কান আেবদনpাp হiেল আদালত মামলা দােয়রকারী, দাষী ব িk বা সtা eবং আেবদনকারীেক, শুনানীর জন যুিkস ত সময় িদয়া, শুনানী aেn িনmবিণত িবষয়সমূহ িবেবচনা কিরয়া pেয়াজনীয় আেদশ pদান কিরেত পািরেব, যথাঃ— (ক)

aপরাধ সংঘটেনর সিহত আেবদনকারী বা বােজয়াpকৃ ত সmিtর বা সmিtর কান aংেশর কান সংে ষ িছল িক না;

(খ)

বােজয়াp সmিt aজেন আেবদনকারীর বধ aিধকার রিহয়ােছ িক না;

ৃ aপরােধর সােথ pত k বা (5) আদালত যিদ মািনলnািরং বা সmk পেরাkভােব সংি সmিtর aবsান িনধারণ বা বােজয়াp কিরেত না পােরন বা সmিt aন কানভােব ব বহােরর ফেল aিst িবলুp হয়, তাহা হiেল—

(গ)

aপরাধ সংঘটেনর সময়কাল eবং বােজয়াpকৃ ত সmিt আেবদনকারীর মািলকানায় আিসয়ােছ eiরূপ দািবকৃ ত সময়কাল; eবং

ৃ নয় aিভযুk ব িkর eমন aপরােধর সােথ সmk সমমূেল র সmিt বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব;

(ঘ)

আদালেতর িনকট pাসি ক িবেবিচত aন য কান তথ ।

(ক)

(খ)

aিভযুk ব িkর িবরুেd য পিরমাণ সmিt আদায় করা যাiেব না তাহার সমপিরমাণ আিথক দ pদান কিরেত পািরেব।

(6) ei ধারার aধীন কান সmিt বােজয়াp করা হiেল বােজয়াp আেদেশর না শ আদালত কতৃ ক য ব িk বা সtার িনয়ntেণ সmিt রিহয়ােছ সi ব িk বা সtার সরেশষ jাত কানায় রিজsাড ডাকেযােগ পাঠাiেত হiেব eবং সmিtর তফিসলসহ সকল িববরণ uেlখkেম সরকাির গেজেট eবং aনূ ন 2 (দুi) বহুল pচািরত জাতীয় দিনক পিtকায় [1 (eক) বাংলা o 1 (eক) iংেরজী] িবjিp pচার কিরেত হiেব। (7) ei ধারার aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল uk সmিtর মািলকানা রাে র uপর ন s হiেব eবং বােজয়াp কিরবার তািরেখ সmিt যাহার িজmায় বা মািলকানায় থািকেব িতিন বা সংি সtা যথাশী সmব, uk সmিtর দখল রাে র বরাবের হsাnর কিরেবন। (8) pত k বা পেরাkভােব aপরাধ লb সmিt যিদ বধ uপােয় aিজত aথ বা সmিtর সিহত সংিমি ত করা হiয়া থােক তাহা হiেল uk সmিtেত আদালত কতৃ ক িনধািরত aপরাধ লb aথ বা সmিtর মূেল র uপর aথবা aপরাধ লb বা সmিtর মূল িনধারণ করা সmব না হiেল aজেনর uপায় িনিরেশেষ সংিমি ত সmণূ aথ বা সmিt রাে র aনুkেল বােজয়াp আেদশ pদান করা যাiেব। 18। বােজয়াpকৃ ত সmিt ফরত pদান --(1) ধারা 17 eর aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল uk

19। বােজয়াpকরণ আেদেশর িবরুেd আপীল --(1) ei আiেনর aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল ukরূপ আেদেশর িবরুেd সংkb ু পk 30 (িtশ) িদেনর মেধ হাiেকা ট িবভােগ আপীল কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান আপীল দােয়র করা হiেল আপীল আদালত uভয় পkেক, শুনানীর যুিkস ত সুেযাগ pদান কিরয়া, শুনানী aেn যiরূপ uপযুk মেন কিরেব সiরূপ আেদশ pদান কিরেত পািরেব। 20।বােজয়াpকৃ ত সmিtর িন িtকরণ pিkয়া --(1) ei আiেনর aধীন কান সmিt বােজয়াp হiেল সরকার, আদালেতর aনুমিত সােপেk, যi সmিt aন কান আiেনর aধীন ংস কিরেত হiেব সi সmিt ব তীত aন ান সmিt, pকাশ িনলােম বা বািণিজ কভােব লাভজনক aন কান আiনসmত uপােয় িবkয় বা aন কানভােব িন িt কিরেত পািরেব। (2) uপ-ধারা (1) eর aধীন সmিt িবkয় বা aন কান আiনগত uপােয় িন িtর মাধ েম pাp aথ রা ীয় কাষাগাের জমা হiেব। 21। aবরুdকৃ ত, kাককৃ ত বা বােজয়াpকৃ ত সmিt রkণােবkেণর জন ব বsাপক বা তttাবধায়ক িনেয়াগ।--ei আiেনর aধীন কান সmিt aবরুd, kাক বা বােজয়াp করা হiেল, তদnকারী সংsা বা uহার িনকট হiেত kমতাpাp কান কমকতার আেবদেনর pিkেত ukরূপ সmিtর সmণূ বা আংিশক িনয়ntণ, ব বsাপনা, তদারিক বা aন কানভােব িন িtর জন , আদালত, sীয় িবেবচনায়, যiরূপ uপযুk মেন কিরেব সiরূপ শেত কান আiন pেয়াগকারী সংsােক uk সmিtর ব বsাপক বা তttাবধায়ক িনেয়াগ কিরেত পািরেব।

I LNJ (2012)

Bangladesh Statutes

22। আপীল --আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkন না কন, আদালত কতৃ ক ei আiেনর aধীন pদt কান আেদশ, রায়, িডিk বা আেরািপত দ dারা সংkb ু পk, ukরূপ আেদশ, রায়, িডিk বা দnােদশ pদােনর তািরখ হiেত 30 (িtশ) িদেনর মেধ হাiেকাট িবভােগ আপীল কিরেত পািরেব। 23। মািনলnািরং aপরাধ দমন o pিতেরােধ বাংলােদশ ব াংেকর kমতা o দািয়t –-(1) ei আiেনর uেdশ পূরণকেl বাংলােদশ ব াংেকর িনmরূপ kমতা o দািয়t থািকেব, যথাঃ— (ক)

কান িরেপাট pদানকারী সংsা হiেত pাp নগদ লনেদন o সেnহজনক লনেদন সmিকত তথ ািদ িবে ষণ বা পর ােলাচনা o িবে ষণ বা পর ােলাচনার uেdেশ aিতিরk য কান তথ িরেপাট pদানকারী সংsা হiেত সংgহ eবং uহার ডাটা সংরkণ করা eবং ktমত, সংি আiন pেয়াগকারী সংsােক pেয়াজনীয় কার kম gহেণর জন uk তথ ািদ pদান করা;

(খ)

ৃ aপরাধ eর কান লনেদন মািনলnািরং বা কান সmk ৃ বিলয়া ধারণা কিরবার যুিkসংগত কারণ সিহত সmk থািকেল িরেপাট pদানকারী সংsা হiেত ukরূপ লনেদন সmিকত য কান তথ বা pিতেবদন সংgহ করা;

(গ)

কান aপরাধ সংঘটেনর মাধ েম কান aথ বা সmিt কান িহসােব জমা হiয়ােছ মেম সেnহ কিরবার যুিkসংগত কারণ থািকেল কান িরেপাট pদানকারী সংsােক aনিধক 30 (িtশ) িদেনর জন uk িহসােবর লনেদন sিগত বা aবরুd রািখবার িনেদশ pদান করাঃ তেব শত থােক য, uk িহসােবর লনেদন সmিকত স ক তথ u ঘাটেনর pেয়াজন দখা িদেল লনেদন sিগত বা aবরুd রািখবার ময়াদ aিতিরk 30 (িtশ) িদন কিরয়া সেরাc 6 (ছয়) মাস বিধত করা যাiেব;

(ঘ)

মািনলnািরং pিতেরাধ কিরবার uেdেশ িরেপাট pদানকারী সংsােক, সময় সময়, pেয়াজনীয় িনেদশনা pদান করা;

(ঙ)

িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক যািচত তথ বা pিতেবদন স কভােব pরণ কিরয়ােছ িকনা িকংবা তdকতৃ ক pদt িনেদশনা যথাযথভােব পিরপালন কিরয়ােছ িকনা তাহা তদারিক করা eবং pেয়াজেন, িরেপাট pদানকারী সংsা সেরজিমন পিরদশন করা;

(চ)

ei আiেনর সু ু pেয়াগ িনি ত কিরবার uেdেশ িরেপাট pদানকারী সংsাসহ বাংলােদশ ব াংেকর িবেবচনায় য কান সংsা বা pিত ােনর কমকতা o ক মচারীেদর জন

56

pিশkেণর ব বsাসহ সভা, সিমনার, iত ািদর আেয়াজন করা; (ছ)

ei আiেনর uেdশ পূরণকেl pেয়াজনীয় aন য কান কার সmাদন করা।

(2) মািনলnািরং বা সেnহজনক লনেদন তদেn তদnকারী সংsা কান তথ সরবরােহর aনুেরাধ কিরেল, pচিলত আiেনর আoতায় বা যিদ aন কান কারেণ বাধ বাধকতা না থােক, তাহা হiেল বাংলােদশ ব াংক uk তথ pদান কিরেব। (3) কান িরেপাট pদানকারী সংsা ei ধারার aধীন কান যািচত তথ যথাসমেয় সরবরাহ কিরেত ব থ হiেল বাংলােদশ ব াংক uk সংsােক pিতিদন 10 (দশ) হাজার টাকা িহসােব সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (4) কান িরেপাট pদানকারী সংsা ei ধারার aধীন যািচত িবষেয় কান ভু ল বা িমথ া তথ বা িববরণী সরবরাহ কিরেল বাংলােদশ ব াংক uk সংsােক aনূ ন 20 (িবশ) হাজার টাকা o সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (5) কান িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক ei আiেনর আoতায় জারীকৃ ত কান িনেদশনা পিরপালেন ব থ হiেল বাংলােদশ ব াংক uk সংsােক pিতিদন 10 (দশ) হাজার টাকা িহসােব সেরাc 5 (পঁাচ) লk টাকা পর n pিত aপিরপালনীয় িবষেয়র জন জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (6) কান িরেপাট pদানকারী সংsা uপ-ধারা (1) eর দফা (গ) eর আoতায় বাংলােদশ ব াংক কতৃ ক িনেদিশত কান aবরুdধ বা sিগত আেদশ পিরপালেন ব থ হiেল বাংলােদশ ব াংক uk িরেপাট pদানকারী সংsােক aনূ ন uk ব াংক িহসােব িsিতর সমপিরমাণ জিরমানা কিরেত পািরেব যাহা িনেদশনা জারীর তািরেখ িহসােব িsিতর িdগুেনর aিধক হiেব না।

57

Bangladesh Statutes

(7) ei আiেনর ধারা 23 o 25 aনুযায়ী বাংলােদশ ব াংক ক তৃ ক আেরািপত জিরমানা কান ব িk বা সtা বা িরেপাট pদানকারী সংsা pদােন ব থ হiেল বাংলােদশ ব াংক সংি ব িk বা সtা বা িরেপাট pদানকারী সংsার িনজ নােম য কান ব াংক বা আিথক pিত ান বা বাংলােদশ ব াংেক পিরচািলত িহসাব িবকলনপূরক আদায় কিরেত পািরেব eবং eেkেt জিরমানার কান aংশ aনাদায়ী থািকেল তাহা আদােয় pেয়াজেন বাংলােদশ ব াংক আদালেত আেবদন কিরেত পািরেব eবং আদালত যiরূপ uপযুk িবেবচনা কিরেব সiরূপ আেদশ pদান কিরেব। (8) uপ-ধারা (3), (4), (5) o (6) aনুযায়ী কান িরেপাট pদানকারী সংsােক জিরমানা করা হiেল ei জন দায়ী uk সংsার মািলক, পিরচালক, কমকতা-কমচারী বা চু িkিভিtক িনেয়ািজত ব িkগেণর িবরুেdo বাংলােদশ ব াংক aনূ ন 10 (দশ) হাজার টাকা o সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং pেয়াজেন সংি সংsােক pেয়াজনীয় pশাসিনক ব বsা gহেণর জন িনেদশনা pদান কিরেত পািরেব। 24। বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (BFIU) pিত া।--(1) ei আiেনর ধারা 23 e বাংলােদশ ব াংেকর uপর aিপত kমতা o দািয়t পিরপালেনর লেk বাংলােদশ ব াংেক বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (Bangladesh Financial Intelligence Unit বা BFIU) নােম eক sতnt iuিনট থািকেব। (2) ei আiেনর uেdশ পূরণকেl সরকাির, আধা-সরকাির, sায়tশািসত সংsাসমূহ বা aন কান সংি pিত ান বা সংsা তdকতৃ ক সংরিkত বা সংগৃহীত তথ ািদ বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনটেক spেণািদ-তভােব বা aনুেরােধর সূেt সরবরাহ কিরেব। (3) বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট aন ান আiন pেয়াগকারী সংsােক মািনলnািরং o সntাসী কাের aথ যাগান সংি তথ ািদ pেয়াজেন s-uেদ ােগ সরবরাহ কিরেত পািরেব। (4) ei আiেনর িবধান aনুযায়ী aন কান দেশর সিহত সmািদত কান চু িk বা ব বsার aধীন সংি দেশর ফাiন ািnয়াল iেnিলেজn iuিনটেক মািন লnািরং বা সntাসী কাের aথায়ন বা কান সেnহজনক লনেদন সmিকত তথ ািদ সরবরাহ কিরেব eবং aন কান দেশর িনকট হiেত aনুরূপ তথ চািহেত পািরেব। (5) uপ-ধারা (4) e বিণত চু িk বা ব বsা ছাড়াo বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট ktমত, spেণািদতভােব aন দেশর ফাiন ািnয়াল iেnিলেজn iuিনটেক তথ সরবরাহ কিরেত পািরেব। 25। মািনলnািরং aপরাধ pিতেরােধ িরেপা ট pদানকারী সংsার দায়-দািয়t --(1) মািনলnািরং aপরাধ pিতেরােধ িরেপাট pদানকারী সংsার িনmরূপ দায়-দািয়t থািকেব, যথাঃ— (ক)

uহার gাহেকর িহসাব পিরচালনাকােল gাহেকর পিরিচিতর স ক o পূ ণা তথ সংরkণ করা;

I LNJ (2012)

(খ)

কান gাহেকর িহসাব বn হiেল বn হiবার তািরখ হiেত aনূ ন 5 (পঁাচ) ব সর পর n uk িহসােবর লনেদন সংkাn তথ সংরkণ করা;

(গ)

দফা (ক) o (খ) eর aধীন সংরিkত তথ ািদ বাংলােদশ ব াংেকর চািহদা মাতােবক, সময় সময়, সরবরাহ করা;

(ঘ)

ধারা 2 (য) e সংjািয়ত কান সেnহজনক লনেদন বা লনেদেনর pেচ া পিরলিkত হiেল s-uেদ ােগ aিবলেm বাংলােদশ ব াংেক ‘সেnহজনক লনেদন িরেপাট’ করা।

(2) কান িরেপাট pদানকারী সংsা uপ-ধারা (1) eর িবধান লংঘন কিরেল বাংলােদশ ব াংক — (ক)

uk সংsােক aনূ ন 50 (প াশ) হাজার টাকা eবং সেরাc 25 (পঁিচশ) লk টাকা পর n জিরমানা কিরেত পািরেব; eবং

(খ)

দফা (ক) eর aধীন আেরািপত জিরমানার aিতিরk uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর ব বসািয়ক কার kেমর aনুমিত বা লাiেসnস বািতল কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমেt িবষয় aবিহত কিরেব।

(3) uপ-ধারা (2) eর aধীন আেরািপত জিরমানার aথ বাংলােদশ ব াংক ত কতৃ ক িনধািরত পdিতেত আদায় কিরেব eবং আদায়কৃ ত aথ রা ীয় কাষাগাের জমা কিরেব। 26। িবেদশী রাে র সিহত চু িk --(1) ei আiেনর uেdশ পূরণকেl সরকার িd-পািkক বা বহু পািkক চু িk, কনেভনশন বা আnজািতক আiেন sীকৃ ত aন কানভােব কান িবেদশী রাে র সিহত চু িk কিরেত পািরেব। (2) ei ধারার aধীন সরকার কান িবেদশী রাে র সিহত চু িkবd হiেল মািনলnািরং aপরাধ pিতেরােধ সরকার— (ক)

uk িবেদশী রা বা সংsার িনকট pেয়াজনীয় তথ ািদ চািহেত পািরেব; eবং

(খ)

uk িবেদশী রা eবং সংsা কতৃ ক যািচত তথ ািদ, জাতীয় িনরাপtার pিত হুমিক না হiেল, সরবরাহ কিরেব।

(3) ei আiেনর uেdশ পূরণকেl বাংলােদশ ফাiন ািnয়াল iনেটিলেজn iuিনট (িবeফআiiu) িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট aথবা aন ান সংি সংsার সােথ সমেঝাতা sারক sাkর কিরেত পািরেব eবং sাkিরত সমেঝাতা sারেকর আoতায় িবeফআiiu—

I LNJ (2012)

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Bangladesh Statutes

(ক)

uk িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট বা সংsার িনকট pেয়াজনীয় তথ ািদ চািহেত পািরেব; eবং

বাংলা পােঠর iংেরজীেত aনূিদত eক িনভরেযাগ পাঠ (Authentic English Text) pকাশ কিরেব।

(খ)

uk িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট eবং সংsা কতৃ ক যািচত তথ ািদ, জাতীয় িনরাপtার pিত হুমিক না হiেল, সরবরাহ কিরেব।

(2) বাংলা পাঠ eবং iংেরজী পােঠর মেধ িবেরােধর kেt বাংলা পাঠ pাধান পাiেব।

(4) ei আiেনর uেdশ পূরণকেl, কান চু িkর aধীন কান িবেদশী রাে র আদালেতর কান আেদশ কার কর কিরবার জন বাংলােদেশ aবিsত কান সmিt বােজয়াp কিরবার বা ফরত দoয়ার pেয়াজন হiেল eটনী জনােরেলর aিফেসর আেবদনkেম আদালত যiরূপ uপযুk মেন কিরেব সiরূপ আ দশ pদান কিরেত পািরেব; eকiভােব বাংলােদেশ আদালেতর বােজয়াpকরণ আেদশ বা uk সmিt ফরত আনয়েনর আেদশ বাsবায়েনর জন চু িk বা সমেঝাতা sারেকর aধীনs রা েক eটনী জনােরেলর aিফস aনুেরাধ কিরেত পািরেব। (5) aন কান আiেন যাহা িকছু i থাkক না কন ei আiেনর uেdশ পূরণকেl পারsিরক আiনগত সহেযািগতার আoতায় কান িবেদশী রাে র uপযুk কতৃ পেkর িনকট হiেত pাp দিললািদ সংি িবচািরক আদালেত সাk িহসােব gহণীয় হiেব। 27। সtা কতৃ ক aপরাধ সংঘটন --ei আiেনর aধীন কান aপরাধ কান সtা কতৃ ক সংঘ ত হiয়া থািকেল ukরূপ aপরােধর সিহত pত k সংি তা রিহয়ােছ সtার eiরূপ pেত ক মািলক, পিরচালক, ম ােনজার, সিচব বা aন কান কমকতা বা কমচারী বা pিতিনিধ uk aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন, যিদ না িতিন pমাণ কিরেত সkম হন য, uk aপরাধ তাহার ajাতসাের সংঘ ত হiয়ােছ aথবা uk aপরাধ রাধ কিরবার জন িতিন যথাসাধ চ া কিরয়ােছন। ব াখ া।— ei ধারায় ‘‘পিরচালক’’ বিলেত সtার কান aংশীদার বা পিরচালনা বাড, য নােমi aিভিহত হuক, eর সদস েকo বুঝাiেব।

31। রিহতকরণ o হফাজত --(1) মািনলnািরং pিতেরাধ আiন, 2009 (2009 সেনর 8 নং আiন) o মািনলnািরং pিতেরাধ aধ ােদশ, 2012 (2012 সেনর 2 নং aধ ােদশ), aতঃপর uk আiন o aধ ােদশ বিলয়া uিlিখত, eতddারা রিহত করা হiল। (2) ukরূপ রিহত হoয়া সেto uk আiন o aধ ােদেশর aধীন গৃহীত কান কার kম, দােয়রকৃ ত কান মামলা বা গৃহীত কান কার ধারা aিন n থািকেল uহা eiরূেপ িন n হiেব যন uহা ei আiেনর aধীন দােয়রকৃ ত বা গৃহীত হiয়ােছ। (3) ukরূপ রিহত হoয়া সেto Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eবং uk আiন o aধ ােদেশর আoতাধীন কান aপরাধ সংগ ত হiেল বা তদnাধীন বা িবচারাধীন থািকেল uk aপরাধসমূহ ei আiেনর িবধান aনুযায়ী eiরূেপ িন n হiেব যন uহা ei আiেনর aধীন দােয়রকৃ ত বা গৃহীত হiয়ােছ। Published in Bangladesh Gazette Extra Ordinary Dated: 20 February, 2012.

Act No. 6 of 2012. সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর সংেশাধনকেl pণীত আiন যেহতু িনmবিণত uেdশ সমূহ পূরণকেl সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর সংেশাধন সমীচীন o pেয়াজনীয়; সেহতু eতddারা িনmরূপ আiন করা হiলঃ—

28। সরল িব ােস কৃ তকার রkণ --ei আiেনর বা িবিধর aধীেন সরল িব ােস কৃ ত কান কােজর ফেল কান ব িk kিতgs হiেল বা kিতgs হiবার সmাবনা থািকেল, সiজন সরকার বা সরকােরর কান কমকতাকমচারী বা বাংলােদশ ব াংক বা বাংলােদশ ব াংেকর কান কমকতা-কমচারী বা দু নীিত দমন কিমশন বা কিমশেনর কান কমকতা-কমচারী বা কান িরেপাট pদানকারী সংsা বা uহার পিরচালনা প ষদ বা uহার কান কমকতাকমচারীর িবরুেd কান দoয়ানী বা ফৗজদারী বা pশাসিনক বা aন কান আiনগত কার ধারা দােয়র করা যাiেব না। 29। িবিধ pণয়েনর kমতা --সরকার, সরকাির গেজেট pjাপন dারা, ei আiেনর uেdশ পূরণকেl িবিধ pণয়ন কিরেত পািরেব। 30। আiেনর iংেরজী aনুবাদ pকাশ --(1) ei আiেনর pবতেনর পর সরকার, যথাশী সmব, সরকাির গেজেট pjাপন dারা, ei আiেনর

1। সংিkp িশেরানাম o pবতন |- (1) ei আiন সntাস িবেরাধী (সংেশাধন) আiন, 2012 নােম aিভিহত হiেব। (2) iহা aিবলেm কাযকর হiেব। 2। 2009 সেনর 16 নং আiেনর ধারা 2 eর সংেশাধন |- সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন), aতঃপর uk আiন বিলয়া uিlিখত, eর ধারা 2 eর uপ-ধারা (2), (10) o (14) eর পিরবেত িনmরূপ uপ-ধারা (2), (10) o (14) pিতsািপত হiেব eবং uপ-ধারা (15) eর পর িনmরূপ নতু ন uপ-ধারা (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), (29) o (30) সংেযািজত হiেব, যথাঃ— ‘‘(2) ‘ast’ aথ ast আiন, 1878 (1878 সেনর 11 নং আiন) eর ধারা 4 e বিণত astশst eবং য কান ধরেনর

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ব tগত বা aব tগত, sাবর বা asাবর, দৃশ মান বা aদৃশ মান য কান ধরেণর সmিt o uk সmিt হiেত udত ূ লাভ, eবং কান aথ বা aেথ রূপাnরেযাগ িবিনময় দিললo (negotiable instrum-ent) iহার anভু k হiেব;

(আ) নগদ টাকা, iেলক িনক বা িডিজটালসহ aন য কান pকৃ িতর দিলল বা in ু েমn যাহা কান সmিtর মািলকানা st বা মািলকানা sেt কান sাথ িনেদশ কের; (16) ‘সেnহজনক লনেদন’ aথ eiরূপ লনেদন—

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(a) ব াংক; (আ) আিথক pিত ান; (i) বীমাকারী; (ঈ) মািন চ ার; (u) aথ aথবা aথমূল pরণকারী বা sানাnরকারী য কান কাmানী বা pিত ান; (ঊ)

বাংলােদশ ব াংেকর aনুমিতkেম পিরচালনাকারী aন কান pিত ান;

(ঋ) (1) sক িডলার o sক bাকার (2) পাটেফািলo ম ােনজার o মােচn ব াংকার (3) িসিকuির কাsিডয়ান (4) সmদ ব বsাপক; (e) (1) a-লাভজনক সংsা/pিত ান (Non Profit Organisation) (2)

(1) যাহা sাভািবক লনেদেনর ধরণ হiেত িভn; (2) যi লনেদন সmেক eiরূপ ধারণা হয় য, (ক) iহা কান aপরাধ হiেত aিজত সmদ, (খ) iহা কান সntাসী কা©‡h, কান সntাসী সংঘটনেক বা কান সntাসীেক aথায়ন; (3) যাহা ei আiেনর uেdশ পূরণকেl, বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, জািরকৃ ত িনেদশনায় বিণত aন কান লনেদন বা লনেদেনর pেচ া; (17) ‘সtা’ aথ কান আiনী pিত ান, সংিবিধবd সংsা, বািণিজ ক বা aবািণিজ ক pিত ান, গা ী, aংিশদারী কারবার, সমবায় সিমিতসহ eক বা eকািধক ব িkর সমnেয় গ ত য কান সংগঠন;

ব বসা

বসরকারী unয়ন সংsা (Non Government Organisation) o

(3) সমবায় সিমিত; (ঐ) িরেয়ল eেsট ডেভলপার; (o) মূল বান ধাতু বা পাথেরর ব বসায়ী; (ঔ) াs o কাmানী সবা pদানকারী; (aa) আiনজীবী, নাটারী, aন ান আiন পশাজীবী eবং eকাuেnn; (aআ) সরকােরর aনুেমাদনkেম বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, িবjিp জারীর মাধ েম ঘািষত aন কান pিত ান;

(18) ‘আিথক pিত ান’ aথ আিথক pিত ান আiন, 1993 (1993 সেনর 27 নং আiন) eর ধারা 2(খ) e সংjািয়ত আিথক pিত ান;

(21) ‘মািন চ ার’ aথ Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 3 eর aধীন বাংলােদশ ব াংক কতৃ ক aনুেমািদত বেদিশক মুdা লনেদনকারী ব িk বা pিত ান;

(19) ‘বীমাকারী’ aথ বীমা আiন, 2010 (2010 সেনর 13 নং আiন) eর ধারা 2(25) e সংjািয়ত বীমাকারী;

(22) (a) ‘sক িডলার o sক bাকার’ aথ িসিকuির জ o ekেচ কিমশন (sক িডলার, sক bাকার o aনুেমািদত pিতিনিধ)

(20) ‘িরেপাট pদানকারী সংsা’ aথ—

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িবিধমালা, 2000 eর যথাkেম িবিধ 2(ঝ) o 2(ঞ) e সংjািয়ত pিত ান; (আ) ‘ পাটেফািলo ম ােনজার o মােচn ব াংকার’ aথ িসিকuির জ o ekেচ কিমশন ( মােচn ব াংকার o পাটেফািলo ম ােনজার ) িবিধমালা, 1996 eর যথাkেম িবিধ 2(চ) o 2(ঞ) e সংjািয়ত pিত ান; (i) ‘িসিকuির কাsিডয়ান’ aথ িসিকuির জ o ekেচ কিমশন (িসিকuির কাsিডয়াল সবা) িবিধমালা, 2003 eর িবিধ 2(ঞ) e সংjািয়ত pিত ান; (ঈ) ‘সmদ ব বsাপক’ aথ িসিকuির জ o ekেচ কিমশন (িমuচু েয়ল ফাn) িবিধমালা, 2001 eর িবিধ 2(ধ) e সংjািয়ত pিত ান; (23) ‘a-লাভজনক সংsা/pিত ান (Non Profit Organisation) ’ aথ কাmানী আiন (বাংলােদশ), 1994 (1994 সেনর 18 নং আiন) eর ধারা 28 eর aধীন সনদ pাp কান pিত ান; (24) ‘ বসরকাির unয়ন সংsা (Non Government Organisation) ’ aথ Societies Registration Act, 1860 (Act No. XXI of 1860), Voluntary Social Welfare Agencies (Registration and Control) Ordinance (Ordinance No. XLVI of 1961), Foreign Donations (Voluntary Activities) Regulation Ordinance, 1978 (Ordinance No. XLVI of 1978), Foreign Contributions (Regulation) Ordinance, 1982 (Ordinance No. XXXI of 1982) ), সমবায় সিমিত আiন, 2001 (2001 সেনর 47 নং আiন) eবং মাiেkােkিডট রগুেলটরী aথির আiন, 2006 (2006 সেনর 32 নং আiন) eর আoতায় aনুেমািদত বা িনবিnত pিত ান যাহা— (ক) sানীয় u স হiেত তহিবল (ঋণ, aনুদান, আমানত) gহণ কের বা aন েক pদান কের; eবং/aথবা (খ) য কান ধরেণর বেদিশক সাহায বা ঋণ বা aনুদান gহণ কের; (25) ‘বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (BFIU) ’ aথ মািনলnািরং pিতেরাধ আiন, 2009 eর ধারা 24 (1) eর িবধান aনুযায়ী pিতি ত বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট; (26) ‘বnগত সহায়তা (material support) ’ aথ কান ব িk বা সtা কতৃ ক aন কান ব িk বা সtােক aথ, সবা বা aন কান সmিt সরবরাহ করা বা aন কান সহায়তা করা যাহা dারা ei

আiেনর আoতায় বিণত সntাসী কমকাn সmািদত হiয়ােছ বা সmািদত হiেত পাের; (27) ‘হাiেকা ট িবভাগ’ a থ বাংলােদশ সুpীম কােটর হাiেকাট িবভাগ; (28) ‘িরেয়ল eেsট ডেভলপার’ aথ িরেয়ল eেsট unয়ন o ব বsাপনা আiন, 2010 (2010 সেনর 48 নং আiন) eর ধারা 2 (15) e সংjািয়ত য কান িরেয়ল eেsট ডেভলপার বা uহার কমকতা বা কমচারী aথবা eেজn যাহারা জিম, বাসা বা বািড়, বািণিজ ক ভবন eবং াটসহ iত ািদর িনমাণ o kয়-িবkেয়র সিহত জিড়ত; (29) ‘ াs o কাmানী সবা pদানকারী’ aথ কান ব িk বা ব বসা pিত ান যাহা aন কান আiেন সংjািয়ত করা হয় নাi eবং য বা যাহা কান তৃ তীয় পkেক িনmরূপ সবাসমূহ pদান কিরয়া থােকঃ (1)

কান আiনী সtা pিত ার eেজn িহসােব দািয়t পালন;

(2)

কান আiনী সtার পিরচালক, সিচব িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা বা aংশীদারী ব বসােয় aংশীদার িহসােব দািয়t পালন aথবা সমপর ােয়র aন কান দািয়t পালন;

(3)

কান আiনী সtার িনবিnত eেজn িহসােব দািয়t পালন;

(4)

কান ekেpস ােsর ািs িহসােব দািয়t পালন বা aন কাহােক িনেয়াগ করা;

(5)

নিমিন শয়ার হাlার বা aন কান ব িkর পিরবেত পিরচালক িহসােব দািয়t পালন বা aন ব িkেক িনেয়াগ pদান;

(30) ‘জনিনরাপtা’ aথ য কান ব িk বা গাি র জীবন o সmেদর িনরাপtা িবধান।’’ 3| 2009 সেনর 16 নং আiেনর ধারা 3 eর সংেশাধন |- uk আiেনর ধারা 3 eর uপ-ধারা (1) e uিlিখত ‘ ফৗজদাির কা©hিবিধ শbগুিলর পর ‘,মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন’ কমা o শbগুিল সিnেবিশত হiেব। 4। 2009 সেনর 16নং আiেনর ধারা 5 eর pিতsাপন |- uk আiেনর ধারা 5 eর পিরবেত িনmরূপ ধারা 5 pিতsািপত হiেব, যথাঃ— ‘‘5। aিতরাি ক pেয়াগ।— (1) যিদ কান ব িk বা সtা বাংলােদেশর বািহর হiেত বাংলােদেশর aভ nের কান aপরাধ সংঘটন কের যাহা uk ব িk বা সtা কতৃ ক বাংলােদেশর aভ nর হiেত সংঘ ত হiেল ei আiেনর aধীন শািsেযাগ হiত, তাহা হiেল uk aপরাধ বাংলােদেশ সংঘ ত হiয়ােছ বিলয়া গণ হiেব eবং uk ব িk বা সtা o aপরােধর kেt ei আiেনর িবধানাবলী pেযাজ হiেব।

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যিদ কান ব িk বা সtা বাংলােদেশর aভ nর হiেত বাংলােদেশর বািহের কান aপরাধ সংঘটন কের, যাহা বাংলােদেশ সংঘ ত হiেল ei আiেনর aধীন শািsেযাগ হiত, তাহা হiেল uk aপরাধ বাংলােদেশ সংঘ ত হiয়ােছ বিলয়া গণ হiেব eবং uk ব িk বা সtা o aপরােধর kেt ei আiেনর িবধানাবলী pেযাজ হiেব।’’

(2) কান ব িk বা সtা সntাসী কার সংঘটন কিরয়া থািকেল, িতিন বা uk সtার সংি ব িk বা ব িkবগ িতিন বা তাহারা য নােমi পিরিচত হuক না কন, মৃতু দ বা যাবjীবন কারাদ বা aনূ িবশ ব সর eবং aনূ ন চার ব সর পর n য কান ময়ােদর স ম কারাদেn দিnত হiেবন, eবং iহার aিতিরk aথদ আেরাপ করা যাiেব।’’

5। 2009 সেনর 16 নং আiেনর ধারা 6 eর pিতsাপন |- uk আiেনর ধারা 6 eর পিরবেত িনmরূপ ধারা 6 pিতsািপত হiেব, যথাঃ—

6।2009 সেনর 16 নং আiেনর ধারা 7 eর pিতsাপন |- uk আiেনর ধারা 7 eর পিরবেত িনmরূপ ধারা 7 pিতsািপত হiেব, যথাঃ—

‘‘6। সntাসী কার ।্ — (1) (ক) কান ব িk বা সtা বাংলােদেশর aখ তা, সংহিত, নিনরাপtা বা সারেভৗমt িবপn কিরবার জন জনসাধারণ বা জনসাধারেণর কান aংেশর মেধ আতংক সৃি র মাধ েম সরকার বা কান সtা বা কান ব িkেক কান কা©h কিরেত বা করা হiেত িবরত রািখেত বাধ কিরবার uেdেশ —

‘‘7। সntাসী কা©†h aথায়ন সংkাn aপরাধ।— (1) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtােক aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt সরবরাহ কেরন বা সরবরােহর aিভpায় pকাশ কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গা ী বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কাের aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন।

(2)

(a)

কান ব িkেক হত া, গুরত ু র আঘাত, আটক, aপহরণ কিরেল বা ei কােজ সহায়তা কিরেল, বা কান ব িk বা সtা বা রাে র কান সmিtর kিতসাধন কিরেল বা kিতসাধন কিরেত সহায়তা কিরেল;

(আ)

কান ব িkেক হত া, গুরত ু র আঘাত, আটক, aপহরণ করার জন pেরািচত কিরেল, বা pেচ া gহণ কিরেল, বা কান ব িk বা সtা বা রাে র কান সmিtর kিতসাধন করার কাের pেরািচত কিরেল, বা pেচ া gহণ কিরেল; aথবা

(i)

uপ-দফা (a) o (আ) eর uেdশ সাধনকেl কান িবেsারক dব , দাহ পদাথ o কান ast ব বহার কিরেল বা িনজ দখেল রািখেল;

(খ) কান ব িk বা সtা বাংলােদেশর aভ nর হiেত aন কান রাে র িনরাপtা িবি ত কিরবার লেk কান aপরাধ সংঘটন কিরেল বা aপরাধ সংঘটেনর pেচ া gহণ কিরেল বা pেরািচত কিরেল বা সহায়তা কিরেল aথবা aন কান রাে র কান সmিtর kিতসাধনকেl কান ব িk বা সtার আিথক সংে ষ থািকেল বা uk aপরাধ কাের িলp হiেল বা pেচ া gহণ কিরেল বা pেরািচত কিরেল বা সহায়তা pদান কিরেল; (গ) কান ব িk বা সtা jাতসাের সntাসী কা©h হiেত udত ূ বা কান সntাসী বা সntাসী গা ী কতৃ ক pদt কান aথ বা সmদ ভাগ কিরেল বা দখেল রািখেল; (ঘ) কান িবেদশী নাগিরক বাংলােদেশর aভ nের দফা (ক), (খ) o (গ) eর aধীেন কান aপরাধ কিরেল; —িতিন ‘‘সntাসী কা©h’’ সংঘটেনর aপরাধ কিরেবন।

(2) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtার িনকট হiেত aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt gহণ কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গাি বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কা©†h aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (3) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtার জন aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিtর ব বsা কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গাি বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কাের aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (4) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtােক aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt সরবরাহ বা gহণ বা ব বsা কিরবার kেt eমনভােব pেরািচত কেরন যাহােত iহা িব াস কিরবার যুিkসংগত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গা ী বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কা©†h aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন।

I LNJ (2012)

(5) uপ-ধারা (1) হiেত (4) e বিণত aপরােধ কান ব িk দাষী সাব s হiেল, uk ব িk aনিধক িবশ ব সর o aনূ ন চার ব সর প©hn য কান ময়ােদর কারাদে দি ত হiেবন, eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িdগুণ মূেল র সমপিরমান বা 10 (দশ) লk টাকা, যাহা aিধক, সi পিরমান aথদ o আেরাপ করা যাiেব।

(ঘ)

সকল সেnহজনক লনেদন সmিকত িরেপােটর ডাটা বজ সৃি o রkণােবkণ করা;

(ঙ)

সেnহজনক লনেদন সmিকত pিতেবদন িবে ষণ করা;

(চ)

ৃ মেম সেnহ কান লনেদন সntাসী কা©‡hর সিহত সmk কিরবার যুিkস ত কারণ থািকেল সংি িরেপাট pদানকারী সংsােক uk লনেদেনর িহসাব aনিধক িtশ িদেনর জন sিগত বা aবরুd রািখবার uেdেশ িলিখত আেদশ জারী করা eবং eiরূেপ uk িহসােবর লনেদন সmিকত স ক তথ udাটেনর pেয়াজন দখা িদেল লনেদন sিগত বা aবরুd রািখবার ময়াদ aিতিরk 30 (িtশ) িদন কিরয়া সেরাc 6(ছয়) মাস বিধত করা;

(ছ)

িরেপাট pদানকারী সংsার কার াবলী পিরবীkণ o তদারক করা;

(জ)

সntাসী কা©‡h aথ যাগান pিতহত কিরবার uেdেশ pিতেরাধমূলক পদেkপ gহেণ িরেপাট pদানকারী সংsাসমূহেক িনেদশ pদান করা;

(ঝ)

সntাসী কা©‡h aথায়েনর সিহত জিড়ত সেnহজনক লনেদন সনােkর uেdেশ িরেপাট pদানকারী সংsাসমূহ পিরদশন করা; eবং

(ঞ)

সntাসী কা©‡h aথেযাগােনর সিহত জিড়ত সেnহজনক লনেদন সনাk o pিতেরােধর uেdেশ িরেপাট pদানকারী সংsাসমূেহর কমকতা o কমচারীগণেক pিশkণ pদান করা।

(2)

বাংলােদশ ব াংক, সntাসী কা©‡h aথেযাগােনর সিহত জিড়ত সেnহজনক কান লনেদেনর িবষয় কান িরেপাট pদানকারী সংsা বা iহার gাহকেক সনাk কিরবার সে সে , uহা যথাযথ আiন pেয়াগকারী সংsােক aবিহত কিরেব eবং aনুসnান o তদn কাের uk আiন pেয়াগকারী সংsােক pেয়াজনীয় সকল pকার সহেযািগতা pদান কিরেব।

(3)

aন দেশ সংঘ ত িবচারাধীন aপরােধর kেt বাংলােদশ ব াংক সরকার কতৃ ক গৃহীত কান আnজািতক, আ িলক বা িd-পািkক চু িk, জািতসংেঘর কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আoতায় কান ব িk বা সtার িহসাব জb করার uেদ াগ gহণ কিরেব।

(4)

uপ-ধারা (3) eর আoতায় জbকৃ ত aথ সংি চু িk, কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আেলােক সংি আদালত কতৃ ক িন িtেযাগ হiেব।

(5)

uপ-ধারা (1) হiেত (3) e বিণত দািয়t সmাদেনর sােথ সরকাির, আধা-সরকাির, sায়tশািসত সংsা বাংলােদশ

(6) (ক) uপ-ধারা (1) হiেত (4) e বিণত aপরােধ কান সtা দাষী সাব s হiেল ধারা 18 eর িবধান aনুযায়ী ব বsা gহণ করা যাiেব eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িতনগুণ মূেল র সমপিরমান বা 50(প াশ) লk টাকা, যাহা aিধক, সi পিরমান aথদ o আেরাপ করা যাiেব; eবং (6) (খ) uk সtার pধান, তাহােক চয়ারম ান, ব বsাপনা পিরচালক, pধান িনরাহী বা aন য কান নােম ডাকা হuক না কন, িতিন aনিধক িবশ ব সর o aনূ ন চার ব সর প©hš— য কান ময়ােদর কারাদে দি ত হiেবন, eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িdগুণ মূেল র সমপিরমান বা 20(িবশ) লk টাকা, যাহা aিধক, সi পিরমান aথদে o দি ত হiেবন যিদ না িতিন pমাণ কিরেত সkম হন য, uk aপরাধ তাহার ajাতসাের সংঘ ত হiয়ােছ aথবা uk aপরাধ রাধ কিরবার জন িতিন যথাসাধ চ া কিরয়ােছন।’’ 7। 2009 সেনর 16 নং আiেনর ধারা 13 eর সংেশাধন |- uk আiেনর ধারা 13 e uিlিখত ‘ scাধীন’ শb িবলুp হiেব eবং ‘ কান মুdণ বা iেলক িনক’ শbগুিলর পর ‘বা aন য কান’ শbগুিল সিnেবিশত হiেব। 8।2009 সেনর 16 নং আiেনর ধারা 15 eর pিতsাপন।-uk আiেনর ধারা 15 eর পিরবেত িনmরূপ ধারা 15 pিতsািপত হiেব, যথাঃ— ‘‘15। বাংলােদশ ব াংেকর kমতা।—(1) ei আiেনর aধীন কান aপরাধ সংঘটেনর uেdেশ কান িরেপাট pদানকারী সংsার মাধ েম লনেদন pিতেরাধ o সনাk কিরেত বাংলােদশ ব াংক pেয়াজনীয় পদেkপ gহণ কিরেত পািরেব eবং eতদুেdেশ uহার িনmবিণত kমতা o কতৃ t থািকেব, যথাঃ— (ক)

কান িরেপাট pদানকারী সংsা হiেত সেnহজনক লনেদন সmিকত pিতেবদন তলব করা;

(খ)

uপ-দফা (ক) aনুযায়ী pাp pিতেবদন সংি আiন pেয়াগকারী সংsােক pেয়াজনীয় কা©hkম gহেণর জন pদান করা বা ktমত, বেদিশক আiন pেয়াগকারী সংsার aনুেরােধর pিkেত uk সংsােক pদান করা বা uk pিতেবদেনর িবষেয় তথ িবিনময় করা;

(গ)

62

Bangladesh Statutes

সকল পিরসংখ ান o রকড সংকলন o সংরkণ করা;

63

Bangladesh Statutes

I LNJ (2012)

পিরেশাধ কিরেত ব থ হiেল বা পিরেশাধ না কিরেল বাংলােদশ ব াংক সংি িরেপাট pদানকারী সংsার িনজ নােম য কান ব াংক বা আিথক pিত ান বা বাংলােদশ ব াংেক পিরচািলত িহসাব িবকলনপূ©eক আদায় কিরেত পািরেব eবং uk জিরমানার কান aংশ aনাদায়ী থািকেল uহা আদােয়, pেয়াজেন, বাংলােদশ ব াংক সংি আদালেত আেবদন কিরেত পািরেব। ’’

ফাiন ািnয়াল iেnিলেজn iuিনটেক তdকতৃ ক যািচত তথ ািদ সরবরাহ কিরেব, বা ktমত, spেণািদত হiয়া তথ ািদ সরবরাহ কিরেব। (6)

বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট চািহদা aনুযায়ী বা ktমত, spেণািদতভােব সntাসী কা©‡h বা সntাসী ৃ তথ ািদ aন দেশর ফাiন ািnয়াল কা©‡h aথায়ন সmk iেnিলেজn iuিনটেক সরবরাহ কিরেত পািরেব।

(7)

সntাসী কা©‡h aথায়েনর িবষেয় তদেnর sােথ কান আiন pেয়াগকারী সংsা কতৃ ক কান ব াংেকর দিলল বা কান নিথেত িনmবিণত শেত pেবশািধকার থািকেব, যথাঃ— (ক) uপযুk আদালত বা াiবু নােলর আেদশkেম; aথবা (খ) বাংলােদশ ব াংেকর aনুেমাদনkেম।’’

9। 2009 সেনর 16 নং আiেনর ধারা 16 eর pিতsাপন |-uk আiেনর ধারা 16 eর পিরবেত িনmরূপ ধারা 16 pিতsািপত হiেব, যথাঃ— ‘‘16। িরেপাট pদানকারী সংsার দািয়t।—(1) কান িরেপাট pদানকারী সংsার মাধ েম ei আiেনর aধীন কান aপরােধর সিহত জিড়ত aথ লনেদন pিতেরাধ o সনাk কিরবার লেk pেত ক িরেপাট pদানকারী সংsা যথাযথ সতকতা o দািয়tশীলতার সিহত pেয়াজনীয় ব বsা gহণ কিরেব eবং কান সেnহজনক লনেদন িচিhত হiেল spেনািদত হiয়া কান pকার িবলm ব িতেরেক বাংলােদশ ব াংকেক িরেপাট কিরেব। (2)

(3)

(4)

pেত ক িরেপাট pদানকারী সংsার পিরচালনা পিরষদ (Board of Directors) বা পিরচালনা পিরষেদর aনুপিsিতেত pধান িনরাহী, বা aন য নােম ডাকা হuক না কন, uহার কমক তােদর দািয়t সmিকত িনেদশনা aনুেমাদন o জারী কিরেব, eবং ধারা 15 eর aধীন বাংলােদশ ব াংক কতৃ ক জারীকৃ ত িনেদশনা, যাহা িরেপাট pদানকারী সংsাসমূেহর জন pেযাজ , pিতপালন করা হiেতেছ িকনা uহা িনি ত কিরেব। কান িরেপাট pদানকারী সংsা ধারা 15 eর aধীন বাংলােদশ ব াংক কতৃ ক pদt য কান িনেদশনা পালন কিরেত ব থ হiেল বা jাতসাের কান ভু ল তথ সরবরাহ aথবা িমথ া তথ বা িববরণী সরবরাহ কিরেল, uk িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক িনধািরত o িনেদিশত aনিধক দশ লk টাকা জিরমানা পিরেশাধ কিরেত বাধ থািকেব eবং বাংলােদশ ব াংক ঐ সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কাhkম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। uপ-ধারা (3) মাতােবক বাংলােদশ ব াংক কতৃ ক আেরািপত জিরমানা কান িরেপাট pদানকারী সংsা

10। 2009 সেনর 16 নং আiেনর ধারা 17 eর সংেশাধন।-uk আiেনর ধারা 17 eর দফা (ঘ) eর শষাংেশ uিlিখত ‘aথবা’ শb িবলুp হiেব eবং দফা (ঙ) eর পিরবেত িনmরূপ দফা (ঙ) o (চ) pিতsািপত হiেব, যথাঃ— ‘‘(ঙ) জািতসংেঘর রজুেলশন নmর 1267 o 1373 সহ বাংলােদশ কতৃ ক aনুসমিথত aন ান রজুেলশন-সমূেহর anভু k সংগঠন হয়; aথবা (চ)

aন কান ভােব সntাসী কাের র সিহত জিড়ত থােক।’’

11। 2009 সেনর 16নং আiেনর ধারা 19 eর সংেশাধন।-uk আiেনর ধারা 19 e uিlিখত ‘আেবদনকারীর শুনানী gহণপূরক’ শbগুিলর পর ‘ei আiেনর aধীন pণীত িবিধ মাতােবক’ শbগুিল সিnেবিশত হiেব। 12। 2009 সেনর 16 নং আiেনর ধারা 20 eর সংেশাধন।--uk আiেনর ধারা 20 e uিlিখত ‘ei আiেন বিণত aন ান ব বsা gহণ ছাড়াo,’ শbগুিল o কমার পর ‘ei আiেনর aধীন pণীত িবিধ মাতােবক’ শbগুিল সিnেবিশত হiেব eবং uপ-ধারা (1) eর দফা (খ) eর পিরবেত িনmরূপ দফা (খ) pিতsািপত হiেব, যথাঃ— ‘‘(খ) uহার ব াংক o aন ান িহসাব, যিদ থােক, aবরুd (freeze) কিরেব eবং uহার সকল সmিt আটক কিরেব;’’ 13। 2009 সেনর 16 নং আiেনর ধারা 22 eর সংেশাধন ।-uk আiেনর ধারা 22 e uিlিখত ‘pথম ণীর ম ািজেsট’ শbগুিলর পিরবেত ‘জুিডিশয়াল ম ািজেsট’ শbগুিল pিতsািপত হiেব। 14। 2009 সেনর 16 নং আiেনর ধারা 23 eর সংেশাধন।--uk আiেনর ধারা 23 e uিlিখত ‘pথম ণীর ম ািজেsট’ শbগুিলর পিরবেত ‘জুিডিশয়াল ম ািজেsট’ শbগুিল pিতsািপত হiেব। 15। 2009 সেনর 16 নং আiেনর ধারা 24 eর সংেশাধন --uk আiেনর ধারা 24 eর— (ক)

uপ-ধারা (1) e uিlিখত ‘িtশ িদেনর’ শbগুিলর পিরবেত ‘ষাট িদেনর’ শbগুিল pিতsািপত হiেব;

(খ)

uপ-ধারা (2) e uিlিখত ‘পেনর িদন’ শbগুিলর পিরবেত ‘িtশ িদন’ শbগুিল pিতsািপত হiেব;

(গ)

uপ-ধারা (3) e বােক র শেষ uিlিখত দঁ ািড়র পিরবেত কালন pিতsািপত হiেব eবং aতঃপর িনmরূপ শতাংশ সংেযািজত হiেব, যথাঃ— ‘‘তেব শত থােক য, মামলার তদেnর pেয়াজেন বাংলােদেশর বািহের aন কান দশ হiেত সাk pমান সংgহ কিরবার

I LNJ (2012)

Bangladesh Statutes

pেয়াজন হiেল uপ-ধারা (1) হiেত (3) e বিণত তদেnর সময়সীমা pেযাজ হiেব না।’’; (ঘ)

uপ-ধারা (4) e uিlিখত ‘তাহার িবরুেd িবভাগীয় শািsমূলক ব বsা gহণ করা হiেব’ শbগুিলর পিরবেত ‘তদnকারী কমকতা তাহার uপর aিপত দািয়t পালেন aবেহলার aিভেযােগ aিভযুk হiেবন’ শbগুিল pিতsািপত হiেব।

16 2009 সেনর 16 নং আiেনর ধারা 25 eর সংেশাধন।--uk আiেনর ধারা 25 eর uপ-ধারা (1) e দুiবার uিlিখত ‘ধারা 25’ শbগুিল o সংখ াগুিল eবং uপ-ধারা (2) e uিlিখত ‘ধারা 25’ শb o সংখ ার পিরবেত সকল sােন ‘ধারা 24’ শb o সংখ া pিতsািপত হiেব।

‘‘35। সntাসী কমকা -লb সmদ বােজয়াp — (1) যেkেt িবচারক ei মেম সn হন য, কান সntাসী কা©h হiেত udত ূ হiবার কারেণ কান সmিt জb বা kাক করা হiয়ােছ, সiেkেt িতিন uk সmিt বােজয়াp কিরবার আেদশ pদান কিরেত পািরেবন। (2)

uপ-ধারা (1) eর aধীেন কান সntাসী কা©h হiেত udত ূ কান সmিt বােজয়াp করা হiেল, য সtার িনকট হiেত uk সmিt বােজয়াp হiেব, সi সtার িবরুেd ei আiেনর ধারা 18 o 20 e বিণত আiনানুগ ব বsা সরকার কতৃ ক gহণ করা যাiেব।

(3)

ei আiেনর ধারা 34 eর uপ-ধারা (4) aনুযায়ী জbকৃ ত সmদ সংি চু িk, কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আেলােক সংি আদালত কতৃ ক বােজয়াpেযাগ o িন িtেযাগ হiেব।

(4)

বােজয়াpকৃ ত সmেদ দাষী ব িk বা সtা ব তীত aন কান ব িk বা সtার st, sাথ বা aিধকার থািকেল uহা সংি আদালত কতৃ ক ফরতেযাগ হiেব।’’

17।2009 সেনর 16 নং আiেনর ধারা 29 eর সংেশাধন।--uk আiেনর ধারা 29 eর uপ-ধারা (6) e uিlিখত ‘পুনঃতদেnর’ শbগুিলর পিরবেত ‘aিধকতর তদn’ শbগুিল pিতsািপত হiেব। 18। 2009 সেনর 16 নং আiেনর ধারা 32 eর সংেশাধন।-uk আiেনর ধারা 32 eর দফা (খ) e uিlিখত ‘িবচারক’ শb র পিরবেত ‘ম ািজেsট বা িবচারক’ শbগুিল সিnেবিশত হiেব। 19। 2009 সেনর 16 নং আiেনর ধারা 33 eর সংেশাধন।-uk আiেনর ধারা 33 eর uপ-ধারা (1) e uিlিখত ‘aিভেযাগপt গঠেনর’ শbগুিলর পিরবেত ‘aিভেযাগ গঠন (Charge frame) eর’ শbগুিল pিতsািপত হiেব। 20। 2009 সেনর 16 নং আiেনর ধারা 34 eর pিতsাপন।-uk আiেনর ধারা 34 eর পিরবেত িনmরূপ ধারা 34 pিতsািপত হiেব, যথাঃ— ‘‘34। সntাসী কমকা -লb সmেদর দখল।— (1) কান সntাসী বা aন কান ব িk, গাি , সtা, pিত ান বা সংsা সntাসী কমকা হiেত udত ূ , বা কান সntাসী বা সntাসী গাি কতৃ ক pদt কান a থ বা সmদ ভাগ কিরেত বা দখেল রািখেত পািরেব না। (2)

ei আiেনর aধীন দ pাp হuক বা না হuক, eiরূপ কান সntাসী বা aন কান ব িk বা গাি বা সংsা বা pিত ােনর দখেল থাকা সntাসী কমকা -লb সmদ সরকােরর aনুkেল বােজয়াpেযাগ হiেব।

ব াখ া।-সntাসী কমকা -লb সmদ aথ ei আiেনর aধীন aপরাধ সংঘটেনর মাধ েম aিজত বা লb কান aথ, সmিt বা সmদ। (3)

(4)

64

22। 2009 সেনর 16 নং আiেনর ধারা 36 eর সংেশাধন।-uk আiেনর ধারা 36 eর uপ-ধারা (1) e uিlিখত ‘িলিখত না শ pদানপূরক বােজয়াp কিরবার কারণ aবিহত না কিরয়া’ শbগুিলর পিরবেত ‘ ফৗজদাির কার িবিধর িবধান aনুসরণপূরক কারণ দশােনার না শ জারী কিরেত হiেব’ শbগুিল pিতsািপত হiেব। 23। 2009 সেনর 16 নং আiেনর ধারা 38 eর সংেশাধন।-uk আiেনর ধারা 38 eর— (ক)

uপ-ধারা (1) e uিlিখত ‘বিহঃসমপন সmিকত’ শbগুিলর পর ‘চু িk মাতােবক’ শbগুিল সিnেবিশত হiেব;

(খ)

uপ-ধারা (3) e uিlিখত ‘ei আiেনর aধীন’ শbগুিলর পিরবেত ‘আnঃরাি ক পার িরক সmিত ব িতেরেক’ শbগুিল eবং বােক র শেষ uিlিখত দঁ ািড়র পিরবেত কালন pিতsািপত হiেব eবং aতঃপর িনmরূপ শতাংশ সংেযািজত হiেব, যথাঃ—

‘‘তেব বাংলােদেশর কান আদালেত eকi aপরােধর aিভেযােগ িবচার চলমান থািকেল বাংলােদেশর কান নাগিরেকর বিহঃসমপণ কার কর করা হiেব না "

ei আiেনর আoতায় কান aপরােধর সােথ সংি কান ব িk বা সtার কান সmিt, কান িবেদশী রা বা সংsার aনুেরােধর pিkেত সরকার কতৃ ক জbেযাগ হiেব eবং সংি দেশর সােথ পারsিরক আiনগত সহেযািগতার আoতায় বা ktমত, সরকার কতৃ ক িনsিtেযাগ হiেব।

24। রিহতকরণ o হফাজত -(1) সntাস িবেরাধী (সংেশাধন) aধ ােদশ, 2012 (2012 সেনর 3 নং aধ ােদশ) eতddারা রিহত করা হiল

সরকার কতৃ ক গৃহীত কান আ nজািতক, আ িলক বা িdপািkক চু িk, জািতসংেঘর কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আoতায় কান ব িk বা সtার সmদ জbেযাগ হiেব।’’

(2) ukরূপ রিহতকরণ সেtto, রিহত aধ ােদশ dারা সংেশািধত সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর aধীন কৃ ত কান কাজকম বা গৃহীত কান ব বsা ei আiন dারা সংেশািধত uk আiেনর aধীন কৃ ত বা গৃহীত হiয়ােছ বিলয়া গন হiেব

21।2009 সেনর 16 নং আiেনর ধারা 35 eর pিতsাপন।-uk আiেনর ধারা 35 eর পিরবেত িনmরূপ ধারা 35 pিতsািপত হiেব, যথাঃ—