October 2012

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(S.K.Sinha, J.) C.J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. Muzammel Hossain,

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APPELLATE DIVISION (CIVIL) Mr. Md. Muzammel Hossain. CJ. Mr. Surendra Kumar Sinha, J..

Mr. M. Abdul Wahhab Miah, J. Mrs. Nazmun Ara Sultana, J. Mr. Muhammad Imman Ali, J. Mr. Justice Muhammad Mamtaz Uddin Ahmed, J. Mr. Justice Md. Shamsul Huda, J.

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law but in the instant case, it has shirked its responsibility and relied on the findings of the trial Court overlooking the findings of Md. Habibur the Court of appeal below which has decided Rahman Bhuiyan the issue on the basis of the materials on and others record. The High Court Division failed to …Appellants notice the settled principle of law and VS interfered with the judgment of the appellate Mosammat court without assigning reasons in any Galman Begum manner (Per S K Sinha majority view). and others ….. (14) ....Respondents State Acquisition and Tenancy Act (XXVIII of 1951)

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Judgment 1st, 8th 15th June, 2011.

Constitution of Bangladesh, 1972 Article 103(2) If this Division finds a substantial and grave injustice or if there exists special and exceptional circumstances it can exercise extra ordinary jurisdiction for doing ‘complete justice' in any matter pending before it. This does not mean that in every petition or appeal this Division will exercise extraordinary jurisdiction and reassess the evidence on record as may be done in an appeal under clause (2) of Article 103 (Per S K Sinha majority view). ... (13) Code of Civil Procedure (V of 1908) Order XLI, Rule 31 The High Court Division should have exercised its jurisdiction within the tenor of CIVIL APPEAL NO. 191 OF 2005 (Arising out of Civil Revision No. 5935 of 2000))

Sections 89 and 90 Even if the pre-emptee does not raise the points of requirements as laid down in sections 89 and 90 of the SAT act, such requirements of law must be satisfied by the pre-emptor before claiming a right of preemption (Per S K Sinha majority view). …. (17) Constitution of Bangladesh, 1972 Article 111 The opinion as expressed in the Abdus Samad Case (33 DLR(AD)113) being a larger Bench of the Appellate Division ,the said opinion would prevail over the opinion as expressed in Abdur Rashid case (58 DLR (AD) 159), (Per S K Sinha majority view). … (17) Code of Civil Procedure (V of 1908) Sections 115(1) There is no scope on the part of the High Court Division to sit on appeal over the finding of fact arrived at by the appellate Court. The High Court Division failed to point out any misreading or nonconsideration of the evidence in arriving at such findings by the Court of appeal below.

These findings being based on proper appreciation of the evidence on record are

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binding upon the High Court Division exercising its revisional jurisdiction (Per S K Sinha majority view). ... (20) State Acquisition and Tenancy Act (XXVIII of 1951) Section 96 The High Court Division having accepted the pre-emptees claim of development, it has impliedly accepted the findings of the appellate Court that the improvement has been made to the knowledge of the preemptor at least prior to the date of knowledge. There is thus apparent inconsistency in the judgment of the High Court Division.

In the premises, it is apparent that both the trial Court as well as the High Court Division did not apply its’ judicial mind in believing the date of knowledge of the pre-emptor (Per S K Sinha majority view). ...(21) Evidence Act (I of 1872) Section 137 The functions of cross-examination is to have the exact truth, to ascertain what part of the story is true, what is false and what is left out-these matters may be learnt, by searching for the questions put to the witness (Per S K Sinha majority view).

A witness is cross-examined for ascertainnment of truth as regards his relationship with the parties, the subject of litigation, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity of retaining and describing them. The paramount object of cross-examination is firstly, to bring out desirable facts of the case modifying the examination-in-chief or establishing the crossexaminer's own case; Secondly, to impeach the credit of the witness, thirdly, the extraction of the qualifying the circumstances of the

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testimony given by a witness and to unveil all the facts known to the witness, and fourthly, to halt falsehood in its tracks and discover the truth before the Court of law. In course of cross-examination if it is possible to unveil any fact which supports the case of cross-examiner or an indication is revealed from the lips of the witness or if the witness makes statement inconsistent with his chief, the Court may infer an adverse presumption against the party for whom he has deposed in the case (Per S K Sinha majority view). ... (28) State Acquisition and Tenancy Act (XXVIII of 1951) Sections 96 Since the pre-emptor’s witnesses have admitted the pre emptees case of improvement of the case land in 1995, the preemption case is hopelessly barred by limitation as the case was filed in 1998.

The pre-emptor's witnesses having admitted the pre-emptees case of improvement of the case land in 1995, the case having been filed in 1998, there is no doubt that it is hopelessly barred by limitation and the Court of appeal below is perfectly justified in believing the preemptees case of improvement and construction of the case land. The High Court Division, in the premises, committed a fundamental error in interfering with the judgment of the appellate Court on the point of limitation.

Thus, we find that the Court of appeal below on a proper assessment of the evidence on record rightly held that the case is hopelessly barred by limitation. (Per S K Sinha majority view). ...(29) State Acquisition and Tenancy Act (XXVIII of 1951) Sections 89 and 96 (Evidence Act (1 of 1872) Sections 101, 102, 103, and 104.

Since the learned counsel for the appellants gave up the point of defect of parties, it is not at all necessary to dwell

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upon the same. The appellate court misread as well as failed to consider the material evidence on record and also misconceived the case of the pre-emptor as made out in the pre-emption petition in arriving at the finding of knowledge of the pre-emptor as to transfer in question. It is the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship if his evidence is otherwise found to be true and withstand the test of cross-examination. The preemptor examined four witnesses in support of knowledge about the transfer in question for the first time in the salish baithak held on 20-03-1998 and such evidence of the witnesses could not be shaken in crossexamination. The pre-empees shall be entitled to get development cost till getting notice of the pre-emption application. The pre-emptee took false plea regarding serving notice under section 89 of the SAT Act. The contesting pre-emptee has failed to prove that he undertook development work in the case land in 1994/1995 rather it supported the case of the pre emptor that such development work was done and the shop rooms were erected after 20-03-1998.

The pre-emptor proved her case of knowledge by four witnesses and she discharged her onus and then it shifted upon the contesting pre-emptee but he failed to discharge the said onus. The development cost was fixed at Tk. 75,000,000 by the High Court Division which appears to be reasonable. The appeal is dismissed without any order as to costs. (Per M.A. Wahhab Miah minority view). ‌ (39, 59, 60, 63 & 65) Abdus Samad and others vs Md. Sohrab Ahmed and others, 33 DLR (AD)113; Abdur Rashid Sarker (Md) and others vs Dines Chandra Das and others, 58 DLR (AD) 159;

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Motilal Sikder vs Benodini Basi, 28 DLR(AD) 5; Anwara Khatun vs Md Abdul Hye, 4 BLC (AD) 14, Samad Sikder @ Somed Sikdar v/s State,50 DLR(AD)24 and Nnowabul Alam Vs State, 45 DLR (AD) 140, ref.

Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record ‌. For the Appellants No 1.

Mr. Kamal-ul-Alam, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record. . . . For Respondent No.1: For Respondent Nos. 2(a)-3: Ex-partee.

Judgment Md. Muzammel Hossain, C.J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha,J. and my learned brother, Md. Abdul Wahhab Miah,J. I agree with the judgment of brother Surendra Kumar Sinha,J. 2.

S.K. Sinha, J: Pre-emptor is the appellant who seeks pre-emption of a holding claiming as co-sharer transferred by the respondent No. 2 in favour of Sultan Uddin Bhuiyan, the predecessor of the respondent Nos.1-3. Leave was granted to consider on two points, namely; the defect of parties and the limitation.

3. Short facts which gave rise to the institute of the pre-emption proceeding are as follows: Elahi Box and Abdul Malek Mollah are owners of the case holding in equal shares. There was an amicable partition between the said co-sharers. By an amicable partition Abdul Malek Mollah got 13 decimals of land of the

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case holding who died leaving wife, a son and two daughters. On the death of Abdul Malek Molla’s wife, her interest devolved upon her son and daughters. The pre-emptees’ father Sultan Uddin Bhuiyan was a bargadar under the preemptor’s father and later on under her. Preemptor requested the respondent No. 2, the vendor on different occasions to partition the joint property left by her parents. Pre-emptor’s husband being a Government Servant, she used to stay with her husband at different places and so she could not visit her paternal home regularly. On her request her brother, the vendor, arranged a meeting for amicable partition of the joint property and in the said meeting, the vendor disclosed that he had transferred the case land to the father of the pre- emptees when she came to know about the transfer. Thereafter preemptor obtained the certified copy of the deed and ascertained about the transfer.

No notice for transfer was served upon her and she being a co-sharer in the holding is entitled to preempt the land transferred by her brother.

4. The pre-emptees contested the case denying the material averments made in the petition and stated that the land in R.S. Plot No. 7585 belonged to Elahi Box and Abdul Malek Mollah in equal shares and that each of them got 13 decimals of land. Elahi Box died leaving a son, the vendor, and a daughter by the 1st wife.

Elahi Box’s son, the vendor by amicable arrangement with his sister got 13 decimals of land of Plot No. 7585 in his share, who sold the same to pre-emptees predecessor and after purchase he filled up the land at a cost of Tk 2,00, OOO/- and erected structures. Pre-emptor was aware about the transfer as she used to visit her village occasionally and as such it was known to her that the pre-emptees are the owners of the land by purchase. They have got

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their names mutated upon separation of the jama and have been paying rent. The case is hopelessly barred by limitation and also bad for defect of parties.

5. The trial Court allowed the pre-emption and on appeal from the said judgment, the Court of appeal below reversed the judgment of the trial Court and dismissed the pre-emption. The pre-emptor thereupon took a revision petition in the High Court Division which made the rule absolute, set aside the judgment of the Court of appeal below and restored that of the trial Court. While interfering with the judgment of the lower appellate Court, the High Court Division preferred to approve the views of the trial Court on the reasonings that it had the advantage to see the demeanour of the witnesses and disposed of the issues in a slipshod manner without reversing the findings.

6. The moot question is whether the High Court Division is justified in disturbing the findings of fact arrived at by the Court of appeal below holding that the case is barred by limitation and bad for defect of parties, which are based on appreciation of the evidence on record.

7. Mr. Mahbubey Alam, learned counsel appearing for the pre-emptees appellants has taken us to the pleadings, the evidence on record, the judgments and submits that the manner in which the High Court Division interferes with the judgment of the lower appellate Court is against the settled principles of law, inasmuch as, the lower appellate Court upon proper sifting of the evidence on record has held. that the case is bad for defect of parties and also barred by limitation but the High Court Division without reversing the findings on the above two counts has interfered with the judgment and in doing so, it has also assigned no reasons whatsoever.

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8. Mr. Kamal-ul-Alam, on the other hand, contended that the pre-emptees did not raise, the point of defect of parties at the earliest opportunity; for w h i c h , t h e H i g h C o u r t D i v i s i o n h a d r i g h t l y interfered with the judgment of the Court of appeal below holding that since this point had not been raised, the Court of appeal below had committed error of law in finding the case as bad for defect of parties. In support of his contention, the learned counsel has referred the cases of Abdus Samad & others Vs. Md. Sohrab Ali and others, 33 DLR (AD) 113 and Abdur Rashid Sarker (Md) and others Vs. Dines Chandra Das and others, 58 DLR (AD) 159.

Learned counsel further contended that the High Court Division is justified in restoring the judgment of the trial Court on the point of limitation, inasmuch as, the Court of appeal below disbelieved the pre-emptor’s witnesses merely on the ground of relationship which is not a legal ground for disbelieving a witness.

documentary evidence, particularly the khatians and came to the conclusion that the heirs of Elahi Box are admitted co-sharers. The Court of appeal below further observed that the trial Court’s observation that the preemptees did not point out about the names of the persons who have been left out despite that they were asked to supply the particulars in the interrogatories was not correct, inasmuch as, in the interrogatories submitted on behalf of the pre-emptor, it was not asked to supply the names of the persons who had been left out and naturally the pre-emptees did not supply the names. This finding of the Court of appeal below is based on consideration of the materials as well as the evidence on record and it being a finding of fact is binding upon the High Court Division, The High Court Division while interfering with the judgment overlooked the reasons assigned by the appellate Court and did not assign any reason as to the correctness of the findings arrived at by it.

9. On the point of the defect of parties, the Court of appeal below on assessment of the evidence on record came to a definite conclusion that the heirs of Elahi Box are admitted co-sharers and that since the preemptor had admitted the same, the trial Court committed illegality in allowing pre-emption ignoring the point of defect of parties . The High Court Division was of the view that the trial Court on consideration of the materials on record came to the finding that the case was not bad for defect of parties and that the Court of appeal below without assigning any reason abruptly came to the finding on the point of defect of parties. This finding of the High Court Division is based on non-application of judicial mind, inasmuch as, the Court of appeal below while deciding the point defect of parties has considered both oral and

10. Learned counsel for the pre-emptor argued that this point having not been specifically raised in the trial Court the appellate Court was not justified in deciding the point. There is no dispute that the preemptees made general statement on the point of defect of parties in the denial portion of their pleadings but in the statements of facts, they positively asserted that the heirs of Elahi Box are co-sharers of the khatian. However, they did not claim that as those heirs having been left out, the case is bad for defect of parties. The trial Court discarded this point observing that the pre-emptees did not supply the names of the persons who had been left out in answer to the interrogatories supplied by the pre-emptor. This observation suggests that the pre-emptees have raised the point in the trial Court, and the lower appellate Court reversed

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the observations of the trial Court on perusal of the interrogatories. Since there are conflicting findings on the point of defect of parties, the High Court Division ought to have examined the record and resolved the issue on perusal of the interrogatories particularly the lower appellate Court has made positive finding in that regard.

11. The High Court Division observed that the Court of appeal below without assigning any reason abruptly came to a finding that the case was bad for defect of parties. Such a finding cannot be sustained in law. This is not a legal ground for interference of the judgment of a court of appeal. The High Court Division ought to have decided as to whether the finding on the point of defect of party is based on the evidence on record. The Court of appeal below observed that the pre-emptor ought to have impleaded all co-sharers in the S.A. Khatian and apart from that it was observed “Avi, Gm, LvwZqv‡bi bvwjkx `v‡Mi Aci 11| Avbv Ask Gjvnx eK‡mi bv‡g wjwc nBqv‡Q| `iLv¯—Kvwibx c¶ ¯^xKvi Kwi‡j I D³ Gjvnx eK‡mi Iqvwimvb‡`i AÎ AMÖ µq †gvKÏgvq c¶fz³ K‡i bvB” therefore we find that the lower appellate Court has assigned reasons but the High Court Division has overlooked those findings. In view of the above, the High Court Division erred in law in interfering with the judgment of the court of appeal below on this issue.

12. When a finding of fact is based on consideration of the materials on record, those findings are immune from interference by the revisional Court except there is nonconsideration or misreading of the material evidence on record. The High Court Division has no jurisdiction to sit on appeal over a finding of fact. It is concerned with the question as to whether the appellate court in giving a particular finding has committed any

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error of law resulting in an error in the decision occasioning failure of justice or such finding is found to have resulted from glaring misconception of law or there is misreading or non-consideration of material evidence in arriving at such finding.

13. Similarly Article 103 does not give a right to a party to appeal to this Division except in cases provided in clause (2) to Article 103. Normally this Division grants leave against a judgment, decree or sentence of the High Court Division or from the judgment of the Administrative Appellate Tribunal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be precedent for guidance for determination of similar disputes in other cases. The mere fact that some question of law arises from the judgments of the High Court Division or the Tribunal will not enable a party to claim as of right to appeal to the Division.

This Division would also interfere with the judgment of the High Court Division or the Tribunal where a finding is reached without taking into consideration vital evidence or where the conclusions arrived at without consideration of the materials evidence or the finding which is inconsistent with the evidence on record. Apart from the above, if this Division finds a substantial and grave injustice or if there exists special and exceptional circumstances it can exercise extra ordinary jurisdiction for doing ‘complete justice’ in any matter pending before it. This does not mean that in every petition or appeal this Division will exercise extraordinary jurisdiction and reassess the evidence on record as may be done in an appeal under clause (2) of Article 103.

14. The High Court Division should have exercised its jurisdiction within the tenor of

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law but in the instant case, it has shirked its responsibility and relied upon the findings of the trial Court overlooking the findings of the Court of appeal below which has decided the issue on the basis of the materials on record.

The High Court Division failed to notice the settled principle of law and interfered with the judgment of the appellate court without assigning reasons in any manner. In Abdus Samad vs. Sohrab Ali, 33 DLR(AD) 113, this Division Motilal Sikder Vs. Benodini Basi, 28 DLR (AD) 5 and observed "objection regarding non-joinder of necessary party should be taken at the earliest opportunity before the trial Court, because an enquiry on this question may be necessary. Of course, in an appropriate case such objection may be allowed to be raised in the appeal. This may be done on the ground that the appeal is continuation of the suit or proceeding. But there is no scope for raising the question of defect of parties on account of non-joinder of necessary parties, for the first time in revision.

15. In Abdur Rashid Sarker’s case (58 DLR(AD) 159),two member Bench of this Division noticed the earlier cases including the case of Abdus Samad and observed "we are of the view that objection as to defect of parties is to be taken at the earliest opportunity. In the instant case that has not been done. Moreover, the pre-emptees did not supply the names of the persons whose names he put to the pre-emptor during crossexamination in reply to the interrogatory served on him. Therefore, in our view he was debarred from making such cross-examination regarding defect of parties and he was also debarred form raising the question of defect of parties at that stage of the proceeding after replying to the interrogatory served on him earlier".

16. In Abdur Rashid, the pre-emptee’s raised the point of defect of parties in the written objection but did not supply the names of the

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persons left out in reply to the interrogatories asked by the pre-emptor. In the context of the matter, this Division maintained the judgment of the High Court Division which dismissed pre-emption. While approving arguments in Abdus Samad this Division in Abdur Rashid failed to notice the other opinion expressed therein that even if no objection was raised in the trial Court, it could be raised at the appellate stage since the appeal is the continuation of the proceeding. Only exception that has been taken is that this point can not be raised for the first time in revision.

17. What’s more, the claim of pre-emption is a predatory right and that is why, the legislature has imposed conditions for claiming pre-emption, such as, the petition should be made within four months of the service of notice under section 89 or if no notice has been served, within four months of the date of knowledge of the transfer, that the pre-emptor must be a bonafide cultivator and must fulfill the conditions laid down in section 90, that a tenant holding land contiguous to the land transferred claiming pre-emption shall make "all the co-sharer tenants of the holding and all the tenants holding lands contiguous to the land transferred and the transferees" parties and that a co-sharer tenant claiming preemption shall make "all other co-sharer tenants of the holding and the transferee" parties. Even if the pre-emptee does not raise the above points, the above requirements of law must be satisfied by the pre-emptor before claiming a right of pre-emption. There is no dispute that the pre-emptees raised the point of defect of parties in the trial Court, of course in an evasive manner but that the trial Court had considered the said issue and accordingly, the point was decided. The opinion expressed in Abdus Samad being a larger Bench, the said opinion would prevail over the opinion

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expressed in the case of Abdur Rashid.

Therefore, the High Court Division has committed error of law in interfering with the judgment of the lower appellate Court on the point of defect of parties.

18. Mr. Mahbubey Alam pressed the point of limitation and submitted that the case is hopelessly barred by limitation. As to the point of limitation, there is no dispute that the case was instituted more than 8 years after the date of execution of the sale deed. Pre-emptor claimed that no notice was served upon her and as she was staying away from the case land with her husband, she had no knowledge about the transfer prior to 28th March, 1998, on which date, the vendor disclosed about the transfer of the case land. The trial Court believed the pre-emptor’s plea about the date of knowledge on the reasoning that there are corroborating evidence of P.Ws.1-4 in this regard and that the claim of the pre-emptees is inconsistent.

19. The Court of appeal, on the other hand, after reassessment of the evidence of P.Ws.1-4 held that the pre-emptor’s witnesses had admitted the pre-emptees claim of development of the case land except the amount of costs spent towards such development, that the improvement and constructions were made in 1995 to the knowledge of the pre-emptor, that the preemptor's witnesses being the nearest relations, they could not be relied upon without corroboration by independent witnesses and that the pre-emptor failed to prove that in the alleged salish there was talk for amicable partition of other joint properties, which belied her claim of date of knowledge. The Court of appeal below came to the conclusion that since the pre-emptor's witnesses had admitted the development of the case land, it was apparent

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that the date of knowledge as stated in the petition was false and that if the pre-emptees had improved the case land after the institution of the case on 27th May, 1998 as claimed, she ought have prayed for injunction restraining the pre- emptees from improving the case land but she did not take such step.

20. Thus, we find that the Court of appeal below has disbelieved the pre-emptor’s claim about the date of knowledge not merely on the ground of examination of nearest relations but also on taking into consideration the fact of development of the case land long before the date of institution of the case to the knowledge of her witnesses, who are none but her nearest relations. These findings of the Court of appeal below are based upon a proper appreciation of the evidence of both sides. There is no scope on the part of the High Court Division to sit on appeal over the finding of fact arrived at by the appellate Court. The High Court Division failed to point out any misreading or nonconsideration of the evidence in arriving at such findings by the Court of appeal below.

These findings being based on proper appreciation of the evidence on record are binding upon the High Court Division exercising its revisional jurisdiction 21. More so, the trial Court did not give development costs to the pre-emptor while allowing pre-emption, although there are sufficient evidence in that regard, which proved that the judgment of the trial Court was perfunctory and the High Court Division though noticed this defect, maintained the judgment of the trial court by awarding development costs without reversing the findings of the appellate Court that the development was made in 1995.The High Court Division having accepted the preemptees claim of development, it has impliedly accepted the findings of the appellate Court that the improvement has been

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made to the knowledge of the pre-emptor at least prior to the date of knowledge. There is thus apparent inconsistency in the judgment of the High Court Division. In the premises, it is apparent that both the trial Court as well as the High Court Division did not apply its judicial mind in believing the date of knowledge of the pre-emptor.

22. The High Court Division has committed another fundamental error in disturbing the finding of fact on the point of date of knowledge, inasmuch as, the High Court Division did not say that there is no misreading or non-consideration of the evidence on record by the Court of appeal in arriving at the conclusion that the pre-emptor had knowledge about the transfer long before the date of knowledge and that she had instituted the case as soon as the case land had been improved at huge costs. The High Court Division though observed that the point of limitation is a disputed question of fact which can be determined on the basis of the evidence on record but on the other breath, it observed that the question of limitation "hinges on the credibility of the witnesses and the trial Court had the advantage to see the demeanor of the witnesses and as such the decision of the trial Court in respect of such finding should prevail.

The Court of appeal below, on the other hand, did not have the advantage to see the demeanor of the witnesses and as such the finding arrived at by the Court of appeal as to the limitation cannot get preference".

23. The High Court Division gave precedence to the conclusions arrived at by the trial Court on the reasonings that the trial Court was in an advantageous position to assess the demeanour of the witnesses. This finding of the High Court Division would have been justified if the trial Court had assessed all material evidence and arrieved at correct finding after such assessment. The High Court

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Division failed to notice that the trial Court overlooked the admissions made by the preemptor’s witnesses, who had impliedly supported the pre-emptees case of improvement. The High Court Division made further error in accepting the pre-emptees claim of development of the case land without ascertaining the exact date of such improvement, and also without repelling the findings of the appellate Court that the improvement was made in 1995.

24. Since the pre-emptees came up with a specific case that they in proved the case land in 1995, and since the appellate Court believed their case on appreciation of the evidence, the High Court Division could have interfered with such finding if it had found any misreading or non consideration of this evidence in arriving at such finding. The High Court Division did not decide the issue in the manner it ought to have decided while interfering with the judgment of the appellate Court. This awarding of costs is also inconsistent with other findings of the judgment of the High Court Division, inasmuch as, whenever the High Court Division was convinced that the pre-emptees had improved the case land and spent Tk.75,000/-, the pertinent question which required to be decided was, when the preemptees had improved the case land? The High Court Division failed to notice that there is nexus between the development of the case land and the date of knowledge and since the pre-emptees have come up with a definite case that immediate after the purchase, they have developed the case land to the knowledge of the pre-emptor, the High Court Division under such circumstances was required to decide the point by bringing all facts in juxtaposition but it disbelieved the findings of the appellate Court regarding the date of knowledge without expressing any opinion in that regard.

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25. The basis of the finding of the Court of appeal on the point of limitation is based on the evidence of the pre-emptees witnesses and the admissions of pre-emptor's witnesses in course of cross- examination. The appellate Court assigned reasons and it cannot be said that the reasons assigned by it are capricious.

The observations that if the improvement was made during the pendency of the case as claimed, naturally the pre-emptor would have intimated the Court and sought for injunction against such improvement but she did not take any step in that regard, which suggested beyond doubt that the constructions were made after the purchase to the knowledge of the preemptor, appear to me sound. The High Court Division totally ignored this finding of the Court of appeal below.

26. In this regard Mr. Mahbubey Alam has taken us the material portion of the evidence of the witnesses. Khandaker Mahmud Murshed (P.W.I) who deposed on behalf of the preemptor had admitted that at least once a year he visited the pre- emptors village home. In course of cross- examination, he admitted that in 1994, a road towards the western side and a bridge towards the southern side were constructed. He admitted that bharatias are in possession of the shops. He, however, stated that the bharatias came after 28th March but he failed to substantiate his claim. This witness has practically admitted the, pre-emptees case.

Khandaker Monjur Murshed (P.W.2) admitted in course of cross-examination that the case land had been improved by filling earth by the pre-emptees and their sons. He, however, could not say the date of such improvement.

He admitted that the case land is situated at a distance of 150 yards from his house and that the pre-emptees constructed 3 shops. He failed to give the exact date or year on which the bharatias are in possession. He also admitted

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that previously the case land was ditch type of land (low lying area) and at present there are shops and that the purchasers improved the case land. This witness suppressed some facts regarding the exact date from which the tenants have been doing business but he has practically admitted the pre-emptees case.

This witness being a close neighbour is supposed to know when the pre-emptees have constructed the shops and let out the same to bharatias (tenants).

27. Munshi Munir Uddin Ahmed (P.W.3) also admitted that the pre-emptees constructed shops. In cross-examination, this witness stated that during the rainy season the case land was under water but it had been raised by filling earth up to the road level. He stated that Sultan Bapari and his sons have been enjoying the case land and that there are 2/3 shops where the shop keepers are carrying on business of cement and selling tea. He also admitted that Azahar has been dealing with cement business in one shop as tenant under Sultan. Iftekher Uddin Mollah (P.W.4) also made similar statements corroborating with P.W.3. He stated in cross mZ¨ 1-3 bs weev`x Lwi` Gi Zvwi‡L I `L‡ji 1995 m‡bi g‡a¨ Ni `iRv wbg©vY K‡i|Ó This witness admitted the preemptees claim of construction of shops in 1995 and this admission destroys the entire story of the pre-emptor about the date of knowledge.

When the admission of this witness was confronted to Mr. Kamalul Alam, learned counsel simply replied that there might be some mistake on the part of the trial Court in recording the testimony of this witness but he failed to show anything that this witness did not make such statement. On the other hand, the pre-emptees have examined 4 witnesses, who have corroborated the case of pre-emptees that they have constructed shop in 1995, of them, P.W.4 is a tenant.

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28. A witness is cross-examined for ascertainment of truth as regards his relationship with the parties, the subject of litigation, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity of retaining and describing them. The paramount object of cross-examination is firstly, to bring out desirable facts of the case modifying the examination-in-chief or establishing the crossexaminer's own case; Secondly, to impeach the credit of the witness, thirdly, the extraction of the qualifying the circumstances of the testimony given by a witness and to unveil all the facts known to the witness, and fourthly, to halt falsehood in its tracks and discover the truth before the Court of law. In course of cross-examination if it is possible to unveil any fact which supports the case of cross-examiner or an indication is revealed from the lips of the witness or if the witness makes statement inconsistent with his chief, the Court may infer an adverse presumption against the party for whom he has deposed in the case. The functions of cross-examination is to have the exact truth, to ascertain what part of the story is true, what is false and what is left out-these matters may be learnt, by searching for the questions put to the witness.

29. On a cursory glance of the evidence adduced by the pre-emptor’s witnesses as above, we noticed that these witnesses, particularly P.W.4 has admitted the preemptees claim that they have constructed shop after improving the case land after purchase in 1995. The pre-emptor’s claim that as the preemptees were her borgaders, she had no knowledge about the transfer earlier had been negated by her witnesses, inasmuch as, her

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witnesses admitted that the case land was initially a low lying land, and that the preemptees had raised the level by filling earth and constructed shops in 1995. Therefore, the story of borga cultivation is a myth. Further, she did not adduce any reliable evidence regarding borga cultivation. The High Court Division has totally ignored the admission of P.W.4 who negated the pre-emptor’s plea of date of knowledge and also the year in which the pre-emptees made construction. I The preemptor’s witnesses having admitted the preemptees case of improvement of the case land in 1995, the case having been filed in 1998, there is no doubt that it is hopelessly barred by limitation and the Court of appeal below is perfectly justified in believing the pre-emptees case of improvement and construction of the case land. The High Court Division, in the premises, committed a fundamental error in interfering with the judgment of the appellate Court on the point of limitation. Thus, we find that the Court of appeal below on a proper assessment of the evidence on record rightly held that the case is hopelessly barred by limitation.

30. This appeal merited consideration which is allowed without any order as to costs.

Sd/- Surendra Kumar Sinha, J. 31. Md. Abdul Wahhab Miah, J: I regret that I could not subscribe to the views expressed in the judgment of my learned brother S.K.Sinha, J. 32. Facts leading to this appeal are as follows: Respondent No. 1 as pre-emptor filed Miscellaneous (pre-emption) Case No.7 of 1998 in the Court of Assistant Judge, Araihazar, Narayangonj for preemption of the case land impleading the

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

present appellants and respondent Nos.2 and 3 as opposite parties. Of the 5(five) opposite parties, present appellants were the pre-emptee opposite party Nos.l-3 and present respondent No.2 was the seller opposite party No.4. Respondent No.3 was the other co-sharer (the appellants as well as the respondents hereinafter shall be referred to as opposite parties). The case of the preemptor was that the land sought to be pre-empted along with other land being in total 26 decimals belonged to Elahi Bux and Abdul Malek Mollah in equal share. There was an amicable partition between them and Abdul Malek Mollah got 13 decimals of land in his saham. In 1971, Abdul Malek died leaving behind widow, a son (the seller opposite party No.4) and two daughters, that is, the preemptor and opposite -party No. 3. Abdul Malek Mollah's wife Aesha died in 1973 and the case land devolved upon his son and daughters. The father of the preemptees was the bargadar under the preemptor's father and later on under the pre-emptor and the other co-sharers.

After the death of the parents of the preemptor, she on several dates requested the seller opposite party No.4 to partition the land described in the schedule to the application along with other land left by them, but he killed time on this, or that plea. After the marriage of the preemptor in May, 1977, she had to stay with her husband at different places of his posting and whenever she used to come to her husband's house, she requested the seller-opposite party to partition the case land along with the other land but every time he avoided the proposal tactfully. The co-sharer opposite party No. 5 lives in Dhaka permanently with her husband. Recently when the preemptor put pressure upon the seller opposite party No. 4 to partition the case

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land along with other land which she inherited from her parents, he was compelled to arrange a gharua baithak at his village home on 20.03.1998. In the said baithak the pre-emptor, her husband, the other co-sharer opposite party No.5 and her husband, the seller opposite party No.4, Md. Moniruddin Munshi (Najuk) Khandker Rezaul Haque, Khandker Badrul Islam, A.N.M. Nazmul Ehsan, Iftekharuddin Mollah and Nazrul Ahsan Mollah were present. In the said baithak when the pre-emptor raised the question of partition of the case land, the seller opposite party No. 4 in presence of the said persons disclosed that he had sold the same to Sultanduddin Bhuiyan, father of the pre-emptee opposite party Nos.1-3.

On 20.03.1998 the pre-emptor for the first time came to know about the sale of the case land by the seller opposite party.

Gharua baithak on the said date ended without any final decision of the partition of the land left behind by Abdul Malek Mollah. Subsequently, the pre-emptor after making search in the office of Subregistrar at Araihazar and Sadar Subregistry office, Narayanganj came to know about the sale deed in respect of the case land and obtained the certified copy thereof on April 6, 1998 and then came to know definitely about the transfer of the case land by the seller opposite party No. 4 to the pre-emptee opposite party Nos.1-3 and not to their father by the sale deed dated 06.06.1996 at a price of taka 15,000.00. The deed was registered in the office of Subregistrar, Araihazar being deed No.2946; the registration of the deed was complete as per the provision of the Registration Act, the same having been recorded in book No.l, volume No.36. Before transfer, the seller opposite party No. 4 did not give any notice either to the preemptor or to opposite party No. 5 either

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in writing or verbally. Had the preemptor any knowledge about the transfer of the case land, she would definitely purchase the same. The seller opposite party was owner of the half of 13 decimals of land and the rest half was owned by the pre-emptor and opposite party No.5, but he transferred the entire case land secretly just to deprive the preemptor of her right of pre-emption. The pre-emptor is a co-sharer by inheritance in the case land, on the other hand, the pre-emptees are strangers therein and as such, the pre-emptor is entitled to preempt the case land and filed the application for pre-emption within 4(four) months from the date of knowledge of the transfer in question.

33. The miscellaneous case was contested by pre-emptee opposite party No. 3 by filing a written objection denying the material averments made in the application and stating, inter alia, that the land of S.A. plot No.2901 and R.S. Plot No.7585 belonged to Elahi Box and Abdul Malek Mollah in equal share. By amicable partition each of them got 13 decimals of land in their respective share and they possessed the same accordingly and in the R.S. khatian, the land of the case plot was recorded in eight annas share each in the name of Elahi Box and Abdul Malek Mollah; while Abdul Malek Mollah had been in possession of 13 decimals of land of the case plot, he died leaving behind a son (Opposite Party No. 4) by the first wife and a daughter by the second wife. By amicable settlement amongst the heirs of said Abdul Malek Mollah opposite party No.4 got 13 decimals of land of the case plot in his share and while he had been in possession thereof sold the same to opposite party Nos.1-3 by a kabala dated 06.06.1990 being kabala No.2946 and handed over possession of the same to them and since then

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they have been in possession thereof. After purchase, the opposite party Nos.1-3 had been cultivating the case land for 4 (four) years and then in 1994 raised the same by bringing earth by truck from Gazipur and Manoharer chak.

On the raised land, the pre-emptees erected 4 (four) shop rooms. Of the 4 (four) shops one is two storied with pucca bhiti and tin roof and tin fencing, 3(three) other shops are with Dochala tin roof with tin fencing. There are also 4 (four) 1 (one) chala chhapra ghar and the pre-emptees have been possessing the case land by letting out the shops to the tenants.

Moniruddin is the elder brother-in-law (husband’s elder brother) of the pre-emptor and Amajad, son of Moniruddin along with his partner Khokan used to deal in electric goods and power loom parts in a shop in the case land by taking the same on rental basis. The pre-emptor and the pre-emptees are of the same village. The houses of the father-in-law of the pre-emptor and her brother are in the same village and although the pre-emptor used to live with her husband at his place of posting, she used to come to the village to represent her husband once or twice a year and to look after her in-laws. The pre-emptor knew about the ownership of pre-emptees as well as the fact of development of the case land and erection of the shop rooms therein. At the time of purchase of the case land by the pre-emptees, they served notice upon the pre-emptor and she was aware of the notice and the sale.

Before transferring the case land, the selleropposite party also intimated the pre-emptor about the transfer in question and told her to purchase the case land, but she refused to purchase the same, then he was compelled to sell the case land to the pre-emptees. After purchase, the pre-emptees got their names mutated and paid rents. The pre-emptees spent about taka 3 (three) lakh in filling the land and

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

taka 2 (two) lakh in erecting the shops in the case land. The pre-emptor having filed the case after 8 (eight) years from the date of transfer was not entitled to get any relief and the preemption application was liable to be rejected.

34. During trial on behalf of the pre-emptor 4(four) witnesses were examined. Of the 4(four) witnesses, P.W.I is the husband of the pre-emptor. On behalf of contesting preemptee opposite party No. 3, 6(six) witnesses were examined including himself. The learned Assistant Judge by his order dated 17.06.1999 allowed the pre-emption application on the clear finding that the pre-emptor was an admitted co-sharer in the case holding; there was no defect of party and the application was filed within 4 (four) months from the date of knowledge of the transfer in question on 20th March, 1998 in the salish baithak wherein the seller opposite party disclosed that he had sold the land to the father of the pre-emptees.

35. Being aggrieved by and dissatisfied with the order passed by the learned Assistant Judge, Araihazar, Narayanganj, the pre-emptee opposite party No.3 filed Miscellaneous Appeal No.33 of 1999 before the District Judge, Narayangonj and the learned Subordinate Judge who heard the appeal by his judgment and order dated 29.10.2000 allowed the same and set aside the order passed by the learned Assistant Judge holding that the preemption application was bad for defect of party and was barred by limitation as the same was filed after long 8 (eight) years from the date of the kabala under pre-emption.

36. Against the judgment and order of the appellate Court, the pre-emptor respondent filed Civil Revision No.5935 of 2000 before the High Court Division. A single Bench of the High Court Division after hearing the civil revision by judgment and order dated

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25.01.2003 made the Rule absolute, set aside the judgment and order of the appellate Court and restored those of the learned Assistant Judge. Against the said judgment and order the pre-emptee appellants filed Civil Petition for Leave to Appeal No. 556 of 2003 before this Division and leave was granted to consider the submission of the learned Counsel for the appellants that "there being no misreading oÂŁ evidence, misconstruction of document and non-consideration of any materials by the court of appeal below, the High Court Division erred in setting aside the judgment of the court of appeal below. He also submits that the reasons given by the High Court Division for restoring the judgment of the trial court is not tenable in law and the court of appeal below having not committed any error of law resulting in an error in the decision occasioning failure of justice, the High Court Division erred in law in setting aside the said judgment. The learned Counsel lastly submits that there being no dispute that Abdul Malek Mollah and Elahi Bux were owners of the case plot and there being nothing on record to show that their Jama was separated and one of the heir of Abdul Malek Mollah having filed the instant preemption petition it is mandatory on his/her part to implead necessary parties under sub-section 2 of section 96 of the State Acquisition and Tenancy Act and in reversing the finding of the Court of appeal below on that point the High Court Division has not taken into consideration the aforesaid provisions of law."

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(MMuzammel A WahhabHossain, Miha, J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. C.J.)

37. Mr. Mahbubey Alam, learned Counsel, appearing for the appellants although initially tried to argue the point as to the defect of party in the preemption application, subsequently he gave up the point and mainly argued the point of limitation with all force at his command supporting the judgment of the appellate Court on the point.

38. Mr. Kamal ul Alam, learned Counsel, appearing for the pre-emptor respondent, on the other hand, supported the finding given by the learned Assistant Judge on the point of limitation as endorsed by the High Court Division.

39. Since the learned Counsel for the appellants gave up the point of defect of party, I do not consider it at all necessary to dwell upon the same. However, it would suffice to say that admittedly the case land along with other land belonged to 2 (two) brothers, Abdul Malek Mol.lah and Elahi Box, the sons of late Karim Box and as per the admitted case of both the parties by an amicable partition the case land fell in the saham of Abdul Malek Mollah who died leave behind a widow, one son (the seller opposite party No.4) and two daughters, one being the pre-emptor and the other being opposite party No.5 (respondent No.3 herein). Thus, Elahi Box and his heirs had no subsisting interest in the case land. The Statute, namely, section 96 of the State Acquisition and Tenancy Act, 1950 (the Act) has given, a co-sharer tenant of a holding the right of prior purchase of a portion or share of a holding within 4(four) months of the service of notice given under section 89 of the Act, 1950, or if no notice has been served under section 89 of the Act within 4 (four) months of the date of knowledge of the transfer. In the instant case, the pre-emptor is an admitted cosharer in the case holding. The appellate

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Court also has not given any finding adverse to the pre-emptor's right of cosharership by inheritance in the case holding.

Therefore, the only question to be decided in this appeal is as to whether the appellate Court was justified in rejecting the preemption application on the ground of limitation and whether the High Court Division was correct in setting aside the judgment and order of the appellate Court and restoring those of the trial Court.

40. From the leave granting order it is apparent that leave was granted in a very wide compass to examine the submission made by the learned Counsel for the appellants that there being no misreading of evidence, misconstruction of document and nonconsideration of any materials by the Court of appeal below, the High Court Division erred in setting aside the "judgment of the Court of appeal", I consider it necessary to see the pleading of the respective parties as well as the evidence adduced by them in support of their respective cases on the question of limitation.

41. As already stated hereinbefore, the specific case of the pre-emptor was that she being the daughter of Abdul Malek Mollah, the owner of the case land had been pursuing, the seller opposite party who had been enjoying and possessing the case land along with other land left by her parents to partition the same but he was not giving her dueshare and eventually a salish baithak was called for the purpose at the house of the seller on 20th.

March, 1998 wherein he, for the first time, disclosed that he had sold case land to Sultanuddin Bhuiyan, the father of preemptees and then after obtaining the certified copy of the kabala under pre-emption on 06.04.1998 came to know definitely that the

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

seller opposite party No.4 transferred the case land not to Sultanuddin Bhuiyan but to his sons, pre-emptee opposite party Nos.1-3 by a kabala registered on 06.06.1999 in the office of Sub-registrar, Araihazar, Narayangonj being kabala No.2946 at a price of TK.5,000.00. The kabala was registered under section 60 of the Registration Act on 09.09.1999 and then filed the pre-emption case in question on 27.05.1998 well ahead of the period of limitation. The further specific case of the pre-emptor was that before 20th of March, 1998 she had no knowledge about the transfer of the case land. It was also the definite case of the pre-emptor that no notice under 89 of the Act, 1950 was served upon her before the transfer of the case land. As against the said .case of the pre-emptor, the preemptee's case was that written notice was served upon the pre-emptor before the transfer of the case land. Further case of the preemptee was that the house of the pre-emptor's husband is in the same village and she used to visit her husband's house oft and often to look after her in-laws, so she knew about the transfer in question. It was also the case of the pre-emptee that after purchase of the case land in 1990 they had been cultivating the case land for 4 (four) years and then in 1994 raised the land by bringing earth from Gazipura and Monoharer chak by truck and then constructed 4 (four) shop rooms of which one is two storied with tin roof and pucca bhiti and tin fencing and 4 (four) others are tin chhapra (one chala) and since then they have been possessing the shop rooms by letting out the same to the tenants.

42. Now let us see how far the parties could prove their respective cases. Pre-emptor examined 4 (four) witnesses. Of them, PW-1, Khandaker Mahmud Morshed is the husband of the pre-emptor and he deposed on her

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behalf. PW1 in his examination-in-chief categorically asserted the case as to the date of knowledge of the pre-emptor on 20th of March, 1998 about the transfer in question as well as the taking of certified copy of the kabala on 06.04.1990 whichwas filed and proved as exhibit-11. PW-1 further asserted that salish baithak took place on the said date due to the fact that in spite of the request by the pre-emptor to give her the share in the landed property left by her parents, the seller was not giving her due share. PW-1 further asserted that the case land was transferred secretly. He denied the assertion of the preemptee that notice of transfer was given to the pre-emptor. PW-1 further asserted that Sultanuddin Bhuiyan used to cultivate the case land as bargader for the last 40 (forty) years, that is, right from the time of Malek Mollah in 1971 and after his death the pre-emptor became the owner, the case land was also used to be cultivated by the bargader and the seller opposite party used to give her crops. He further asserted that the case land was not partitioned among the co-sharers. In crossexamination, this PW categorically denied the pre-emptee's case that the case land was filled up by bringing earth from other place and then asserted that the case land was raised by taking earth from the river. This PW categorically asserted that it was a fact that shop rooms were erected in the case land but those were erected after 20th of March,1998.He also asserted that there are tenants in the case land, but after 20th of March, 1998. This PW also denied the suggestion given to him on behalf of the preemptee that Azad, son of Khandker Monjer Morshed, the pre-emptor's elder brother-inlaw did business in a shop of the case land along with Khokon (OPW4). He denied the further suggestion that no 'baithakh' took place

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(MMuzammel A Wahhab Miha, J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. Hossain, C.J.)

on 20th of March, 1998 and the seller opposite party was not present in the baithak. PW1 further asserted that they knew that the preemptees had been in possession of the case land as the bargader. The pre-emptee by crossexamining PW1 could not at all shake his testimony as to the knowledge of the transfer in question having been disclosed by the seller opposite party for the first time in the salish baithak held on 20th of March, 1998 for the purpose of partitioning the land left behind by the parents of the pre-emptor.

43. PW-2, Khandaker Monjer Morshed is the husband of opposite party No.5, a cosharer and sister of the pre-emptor. This PW in his examination-in-chief stated that Abdul Malek used to cultivate the case land through bargader Sultanuddin Bhuiyan, that is, the father of pre emptees. He categorically stated that the property left behind by late Malek Mollah was not partitioned. He himself and his wife requested the seller opposite party No. 4 to partition the land left behind by Malek Mollah but he did not do so and eventually baithak was called on 20th of March, 1998 for the purpose. Salish baithak was held in the house of opposite party No.4 and when discussion started about the case land he disclosed that he had transferred the same. This PW further asserted that before 20th of March, 1998 he did not know about the transfer in question. In cross-examination, this PW stated that he lived in the same village and the case land is just 150 yards away to the west of his house. He denied the suggestion of the pre-emptee that at the time of selling the case land, the pre-emptor and her husband were present and as they refused to purchase the case land, the same was sold to the preemptees. This PW denied the further suggestion that Sultanuddin Bhuiyan was not the bargader and that the pre-emptees filled up

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the land by spending TK.3,00,000.00. This PW stated in his cross-examination to the effect " mZ¨ b¨ cÖwZc¶ cÖvq 3 jvL UvKvi gvwZ fivU K‡i | 1995 m‡bi bvwjkx Rwg‡Z †`vKvb Av‡Q wKbv Rvwb bv | MZ 6 gvm hver evwo hvw”Q bv| bvwjkx Rwg‡Z cÖwZc¶iv †MvUv wZ‡bK Ni Zz‡j| fvovwUqvi Ni KZ ermi hver Zv Rvwb bv| mZ¨ bq ZidQvwb 1995 m‡b Ni fvov †`q| Zviv KZ ZvKv Ni fvov †`q Rvwb bv| mZ¨ bq cÖvq 2 j¶ UvKv Kvib bq| 1995 m‡b| Avgvi g‡Z 45/45 nvRvi UvKv LiP K‡i cÖwZc¶ Ni wbg©vb K‡i| Thus, from the cross-examination of PW-2, it does appear that this PW at all admitted the fact that the pre-emptees made development in the case land in 1995 as found by the appellate Court. In cross-examination, the PW further asserted the fact stated by him in his examination-in-chief that he tried many a time to partition the land left behind by Malek, but failed. He denied the suggestion of the preemptees that no salish took place on 20.03.1998.

44. PW-3, Munshi Monir Uddin Ahmed, an independent witness categorically stated in his examination-in-chief that Abdul Malek Mollah died in 1971 leaving behind many properties including the case land. The case land was not partitioned before and a baithak took place at the house of the seller opposite party No. 4 on 20th of March, 1998 about the case land. When the pre-emptor demanded her share in the case land, the seller opposite party told that he had transferred the case land to Sultan Bapari. Discussion also took place about other properties. He further asserted that before 20th of March, 1998 he did not know about the sale of the case land. He further stated to the effect bvwjkx Rwg‡Z Ni `iRv Av‡Q| Ni `iRv mg~n 20/3/98 Bs Gi ci| This PW also named the persons who were present in the baithak as stated in the preemption application. In cross-examination this PW

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

further asserted to the effect gvwU fivU Ni wbg©vb †Kvb Zvwi‡L K‡i Zv ej‡Z cvie bv Z‡e 20/|3/98 Bs ZvwiL Gi ci K‡i| but unfortunately the appellate Court found that though salish wascalled in writing but no paper was filed in that respect. Thus, it is clear that this PW in cross-examination re-asserted the statements as made by him in his examination-in-chief about the salish baithak. He further stated in cross-examination that Sultanuddin Bhuiyan and his sons used to possess the case land for long, but as bargader. This PW very stoutly denied the suggestion of the pre-emptee that he raised the land and erected shop rooms in 1995. It would be better to quote the relevant portion of the cross-examination of PW-3 which is as follows: mZ¨ bq 20/3/98 Bs Zvwi‡L Gi gvwU fivU I Ni wbg©vY wg_¨v | mZ¨ bq 1995 Bs Zvwi‡L ch©š— ZidQvwbMi Ni `ªRvi KvR †kl K‡i| mZ¨ bq 1990-1995 mb ch©š— gvwU fivU I Ni `iRv wbg©vY K‡i| 45. P.W.4, Eftekher Uddin Mollah, stated in his examination-in-chief that late Abdul Malek Mollah had other land except the case land and there was no partition of the lands left behind by him amongst his heirs. This PW categorically stated that he was present in the baithak which took place on 20.03.1998 at the house of opposite party No.4 alongwith PW-2, Khandaker Monjur Morshed, PW-3 Munsh Moniruddin Ahmed, Nazrul Islam, seller opposite party No.4, his second wife and opposite party No.5 along with others. He further stated that rooms were erected in the case land after 20cn of March, 1998. In crossexamination this PW further stated to the Effect gvwU fivU Ni wbg©vb †Kvb Zvwi‡L K‡i Zv ej‡Z cvie bv Z‡e 20/|3/98 Bs ZvwiL Gi ci K‡i| 46. On behalf of the contesting pre-emptee, 6 witnesses were examined. Of these OPW's,

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OPW-1 is the pre-emptee No. 3. He asserted the case as made out in the written objection.

This OPW stated in his examination-in-chief that after purchase, they had been cultivating the case land for the first 4(four) years and then in 1995 filled up the land and erected shop rooms therein spending TK.5,00,000.00.

He further stated that they erected 4 (four) rooms of which one was du chala tin with pucca bhiti and they used to possess the same through tenants. Azad, a son of the elder brother-in-law (son of the elder brother of the pre-emptor's husband) of the pre-emptor also did business in the case land as a tenant under.

The house of the pre-emptor and her husband is in the same village and she used to visit the village 6/7 times in a year. The seller informed the pre-emptor about the sale of the case land but she refused to purchase the same. This OPW further stated that at the time of transfer of the case land, notice was given to the pre-emptor. He denied that salish took place on 20th of March, 1998 and then after obtaining the certified copy of the kabala in question, the pre-emptor came to know definitely about the transfer in question. He further asserted that the case was filed after 8 (eight) years from the date of transfer out of greed as the land was developed by then. In cross-examination, this PW denied the suggestion that they developed the case land and erected the structures on the case land on 20.03.1998. He further stated that Avgvi bvwjkx m¤cwË Lwi‡`i wel‡q gRni‡K RvbvB G hveZ †bvwUk Gi Kwc Av`vj‡Z `vwLj Kwi bvB | ci e‡j †bvwUk nvwi‡q wM‡q‡Q| 47. OPW-2, Khoka Khandaker deposed that the pre-emptor and her husband used to visit their house at the village 5/7 times in a year.

After purchase, the case land was raised. This OPW further stated to the the effect ” 4/5 ermi c~‡e© gvwU fivU K‡i| There are structures in the

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(MMuzammel A Wahhab Miha, J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. Hossain, C.J.)

case land which have been let out to the tenants.He further stated that he is a salishder of panchgram village and he knew Baker Mollah (seller opposite partyNo.4). He could not say whether any baithak took place in the house of opposite party No. 4. Had there been any such baithak, the same would have come to his knowledge. Thus, it is clear that this OPW did not specifically say anything in which year development in the case land was done and the shop rooms were erected. In cross-examination, this OPW denied the suggestion that the work of raising the case land and erection of the shop rooms were done after 20th of March, 1998 and then he asserted that the work of filling up the land and erecting shop rooms were done 5(five) years before 48. OPW-3, Abdur Razzak, deposed that the case land was purchased 5/6 years before.

Everybody of the village knew about the purchase and the sale did not take place secretly. After purchase, the purchaser used to plant seedlings for sometime and then filled up the land by bringing earth by truck at the cost of taka 2/3 lakh. The work of earth filling was done 4(four) years before. In cross examination, he stated that he was not a witness to the sale deed and he was not present at the time of sale of the case land. He denied the suggestion given by the pre-emptor that the shop rooms in the case land were erected at a cost of taka 40/50 thousand after 20.03.1998. This OPW further stated that the pre- emptees erected rooms and let out the same to the tenants and there were 5 (five) tenants. This OPW contradicted OPW s 1 and 2 as to the development of the case land and erection of shop rooms therein.

49. OPW-4, Khokan Dewan, stated that he knew the case land which is being possessed

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by opposite party No.3. The case land was filled up by opposite party No. 3, he has been possessing the same for 7/8 years. Opposite party No .3 erected rooms in the case land and presently possesses the same through tenants.

He used to do business in a shop in the case land by taking the same on rental basis along with Azad khandaker, son of the elder brotherin-law of the pre-emptor as his partner. He further stated that opposite party No. 3 filled up the land by bringing earth by truck and in doing so he had to spend TK.2/2.5 lakh and he also spent TK. 1.5 lakh for erecting the rooms.

In cross-examination, he stated that presently he works at the colour shop of his maternal uncle. He had no written tenancy agreement with OPW-3 and no receipt of the payment of rent as well. There was no agreement to show that Azad Khandaker used to do business with him jointly. However, he denied the suggestion given by the pre-emptor that he was not tenant in the case land.

50. OPW-5 is Tota Miah. He deposed that opposite party No.3 had been possessing the case land for 7/8 years. The case land was low land and the same was filled up by bringing earth by truck through him.A sum of taka 3/4 lakh were spent in filling the land. The earth was brought from Gazipur and Monoharer chak. The cost of bringing the earth was paid by opposite party No.3. He further stated that after filling the land opposite party No. 3 erected rooms at the cost of TK.2.5 lakh.

There are 3 (three) shops in the case land, one furniture shop, one saloon and one tea shop which have been let out to the tenants. In cross-examination, this OPW stated that he was a man of village Monoharer chak which was 2 kilometers away from his house. He further stated that he had no truck of his own and he did not file any receipt of hiring truck.

He denied the suggestion that the rooms in

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

the case land were erected after 20.03.1998.

51. In cross – examination he further stated that Gi cv‡k jvM c~‡e© w`‡K eª cyÎ b`x Av‡Q | †mLv‡b †_‡K gvwU fivU n‡q‡Q | (‡m wbðzc wQj) c‡i e‡j Zv mwZ¨ bq”. The demeanour of witness as recorded by the trail court shows that he was a partisan witness and he did not tell the truth.

52. OPW-6 is one Haridas . He deposed that he has furniture shop in the case land and he has been doing his business there since 1995 by taking the same on rent at TK. 6, 000. 00 per year. In cross- examination, he stated that he brings wood for furniture from Araihazar and Narsingdi. The receipt for purchasing wood is given from Narsingdi but he has not filed the same in Court. He further stated that there was no tenancy agreement with the opposite party No. 3.

53. These are the relevant evidence of the witnesses adduced by the parties in the case land.

54. Sub-section (1) of section 96 of the Act has clearly mandated that if a portion or share of a holding of a raiyat is transferred then a co-sharer tenant of that holding may within 4 (four) months of the service of notice given under section 89 of the Act or if no notice has been served under section 89 of the Act within 4 (four) months of the date of knowledge of the transfer, apply to the Court for the said portion or share to be transferred to him. In this case, the pre-emptor categorically asserted in the application for pre-emption that before transfer of the case land no notice was served upon her either in writing or verbally. The pre-emptor further asserted that the case land was transferred secretly beyond her knowledge. On the other hand, the pre-emptee in his written objection asserted that before purchasing the case land, he served notice of

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the transfer to the pre-emptor and the preemptor was aware about the notice and the sale in question. Section 96(1) of the Act has contemplated two situations as to the limitation for filing an application for preemption, one within 4(four) months of the service of the notice given under section 89 of the Act and the other within 4 (four) months of the date of knowledge of the transfer if no notice has been served under section 89 of the act. When the pre emteein his written objection specifically pleaded that notice of transfer was given to the pre-emptor onus was squarely upon him to prove the same.

Now let us see whether the pre-emptee proved the said fact.

55. Pre-emptee-opposite party No. 3 examined himself as OPW1. He in his examination in chief asserted that at the time of purchase of the case land notice was given to the pre-emptor. The OPW further asserted that the seller-opposite party informed the preemptor about the sale but he refused to purchase the same. I consider it better to quote the relevant portion of the evidence of P.W.I in this respect we‡µZv ZicQvwb bvwjkx m¤cwË wewµi mgq gRni‡K Rvbvq | bvwjkx m¤cwË ivL‡Z ev µ‡q A¯^xKvi K‡i| `iLv¯—Kvwibx‡K †bvwUk †`Iqv nq bvwjkx m¤cwË Lwi‡`i mgq bvwjkx m¤cwËi `w¶Y cv‡k¦© Avgv‡`i m¤cwË| But copy of such notice was not filed in the Court. And in crossexamination this PW stated to the effect Avgvi bvwjkx m¤cwË Lwi‡`i wel‡q gRni‡K RvbvB G hveZ †bvwUk Gi Kwc Av`vj‡Z `vwLj Kwi bvB | ci e‡j †bvwUk nvwi‡q wM‡q‡Q| Thus it is clear that notice of transfer under section 89 of the Act was not served upon the pre- emptor and the contesting pre-emptee took false plea in the written objection. Therefore, the case of the pre-emptor that on coming to know about thetransfer in question in the salish baithak

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held, on 20th of March, 1998 she obtained the certified copy of the kabala in question on 06.04.1998 and then came to know definitely about the transfer in question and then filed the case on 27.05.1998, that is, well ahead of 4 (four) months from the date of knowledge has to be considered in the light of the evidence adduced by the parties. In this regard, I am not oblivious of the onus of the pre-emptor to prove the Fact of knowledge as to the sale in question as asserted by her in the pre-emption application as well as by her husband as PW-1.

seedlings for sometimes, in crossexamination, stated that he was not present during the transfer and he also could not say whether the people of the village knew about the transfer and finally observed that this witness could not say whether everybody knew about the transfer and then concluded by saying that from analysis of the deposition of the witnesses it appeared that the pre-emptor came to know about the trans-fer for the first time on 20.03.1998. However, the trial Court did not consider it necessary to discuss the evidence of the other OPWs.

56. From the judgment of the trial Court, it appears that it considered the evidence of the PW’s and then believed the pre-emptor's case of knowledge about the transfer in question on 20th of March, 1998 as disclosed by the seller – opposite party in the salish baithakheld on the said date.The trial Court found the PW’s trustworthy And no inconsistency in their evidence.The trial Court Court did not find OPW1 trustworthy as he madecontradictory statements in crossexamination from that of the examination-inchief. I considerit better to quote the relevant portion of the finding of the trial Court about OPW-1 which is as follows:

58. The appellate Court which is the last Court of fact disbelieved the pre-emptor's case of salish baithak held on 20th of March, 1998 on the ground that no document was filed as to the proof of holding of salish on the said date completely forgetting that neither in the application for pre-emption nor in the deposition of PW1, any such case of written salish baithak was made out. The other reason given by the appellate Court to disbelieve the story of salish as deposed by PW-3, an independent witness is that except him none of the other salishder deposed to the said effect completely ignoring the evidence of PW-4 who categorically deposed about the holding of salish on 20™ of March, 1998 and the further fact that he was present at the salish. PW-4 categorically stated in his examination-in-chief that he was present in the salish along with PWs 2 and 3. In this regard, the appellate Court also failed to notice section 134 of the Evidence Act which has clearly provided that no particular number of witnesses is necessary to prove a fact. Thus, it appears to me that the appellate Court totally misread as well as failed to consider the material evidence on record and also misconceived the case of the pre-emptor as made out in the pre-emption application in

Aci w`‡K cÖwZc‡¶i mv¶x bs 1 Zvi Revb ew›`‡Z e‡j, Lwi‡`i c~‡e© †_‡KB `iLv¯—Kvwibx Rv‡b| bvt m¤cwË Lwi‡`i mgq, †m Zvi †Rivq ¯^xKvi K‡i, Avgiv bvt m¤cwË Lwi‡`i wel‡q gRni‡K RvbvB Ges G eve` †bvwU‡k Gi Kwc Av`vj‡Z `vwL Kwi bvB| c‡i e‡j †bvwUk nvwi‡q wM‡q‡Q | G mv¶x Revbe›`x I †Riv g‡a¨ mgm¨v Ly‡R bv cvIqvq I G mv¶x mv¶¨ wek¦vm †hvM¨ bq| 57. The trial Court found that though OPW2 in his examination-in-chief stated that everybody knew about the purchase and that the transfer in question was not made secretly and that after purchase, the purchasers planted

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

arriving at the finding of knowledge of the pre-emptor as to the transfer in question. It further appears that the appellate Court disbelieved the evidence of PW's 1,2 and 4 on the ground that they were the own men of the pre-emptor. Such reason given by the appellate Court in disbelieving PW s 1, 2 and 3 is absolutely fallacious and contrary to the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship or closeness if his evidence is otherwise found to be true and withstand the test of cross-examination. In this regard, reference may be made to the cases of Samad Sikder @ Somed Sikder-vs- State reported in 50 DLR(AD)24, Nowbul Alam and others-Vs- State reported in 45DLR(AD) 140, and Anwara Khatun-Vs-Md. Abdul Hye and others reported in 4BLC(AD) 14.

59. In support of the case of knowledge about the transfer in question for the first time in the salish baithak held on 20th of March, 1998 the pre-emptor examined 3(three) witnesses in addition to her husband as PWl. The evidence of the witnesses to the above effect could not be shaken in crossexamination then what more the pre-emptor could do to prove the knowledge within the meaning of subsection (1) of section 96 of the Act. So, the appellate Court was absolutely in error when it observed that the pre-emptor could not prove that she did not know about the transfer in question before 20th of March, 1988. it further appears that the appellate court in a circuitus and negative way disbelieved the pre emptors case of knowledge about the transfer in question on 20th of march, 1988 and the development made in the case land including erection of the shops therein after the said date by posing a question why she did not pray for any injunction after filing of the pre-emption application on 27.05.1998

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if the pre-emptees undertook development work in the case land after 20th of March, 1998 in complete disregard to the factual position that the gap between 20th of March, 1998 upto 27 May, 1998 was quite enough to undertake the nature of the development works and erection of the structures on the case land as claimed by the pre-emptees. The appellate Court also failed to consider in its proper perspective that even if it is conceded that the pre-emptees undertook development work after the filing of the pre-emption case and the pre-emptor failed to take any step by way of filing an application to injunct them from undertaking such development work that does not debar the pre-emptor to pray for pre-emption and for such failure no adverse presumpti can be drawn against her. In this regard, law is very much clear which is that the pre-emptees shall be entitled to get development cost till getting notice of the pre-emption application 60. it is very much striking to state that the appellate Court itself disbelieved the preemptee’s case of spending TK. 5,00,000.00 for the development of the case land including erection of the structures thereon on the ground that he failed to file any documentary evidence in that respect and found that the pre-emptee spent TK. 1,50,000.00 only. From the appellate Court judgment, it further appears that it proceeded with a prior view that since the pre-emption application was filed after 8 (eight) years, the same was barred by limitation ignoring the positive evidence on record adduced by the pre-emptor that she had no knowledge about the transfer in question prior to 20th of March, 1998 and whatever development was done in the case land was done after the said date. The appellate Court also failed to consider the fact that the pre-emptee took specific plea in the

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(MMuzammel A Wahhab Miha, J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md. Hossain, C.J.)

written objection as well as in Court while he deposed as OPW-1 that notice under section 89 of the Act was served upon the pre-emptor but failed to prove the said fact which shows that the pre-emptee took false plea in his pleading to defeat the case of the pre-emptor and for this reason the appellate Court ought to have drawn an adverse presumption against him. It is true that the pre-emptee developed the case land and erected some shop rooms therein but the pre-emptor specifically stated that those were done after the disclosure of the fact of transfer on 20tn of March, 1998.

61. In sifting the evidence of the PW’s in arriving at the finding of knowledge of the pre-emptor about the transfer in question, the appellate Court totally failed to consider the pertinent fact that the seller-opposite party No.4 is none else, but his full brother and the father of the pre-emptees Sultanuddin Bhuiyan used to cultivate the case land as bargadar during the life time of her father and then under them and the seller used to give her the share of the crops, so even if the preemptee was in possession of the case land till 20th of March, 1998 the pre-emptor had no scope to know about the transfer in question.

62. In the face of positive evidence adduced by the pre-emptor as to knowledge about the transfer in question as discussed above the pre-emptee was obliged to examine witnesses who as per his own case participated in filling up the case land and erecting shop rooms therein after 1994 and before 20th March, 1998. But the pre-emptee failed to examine any such witness in the case. To specify, the pre-emptee did not examine the truck owner or the truck driver in support of his case that he filled, up the case land by bringing earth in truck from Gazipur and Monoharer chak. The pre-emptee examined

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one Tota Mia as OPW-5 to prove that earth was brought from Gazipur and Monoharer chak by truck at the cost of taka 3/4 lakh, but in cross-examination he stated that his house was two kilometers away from the case land and that he had no truck and did not submit any receipt of truck fare. The pre-emptee did not examine any one who erected the shop rooms in the case land. The pre-emptee examined Haridas as OPW-6 who is his alleged tenant in the case land since 1995.

This OPW stated in his deposition that he had a furniture shop in the case land since 1995 but in support of his tenancy no agreement was produced. Although OPW-6 stated that he has been doing the business in the case land since 1995 by paying rent of TK.6,000.00 per year, no rent receipt was produced. All these categorically disproved the case of the contesting pre-emptee that he undertook development work in the case land in 1994/1995 rather supported the case of the pre-emptor that the development in the case land was done and shop rooms were erected after 20th of March, 1998.

63. I am of the view that by examining 4 (four) witnesses in support of the case of knowledge of the transfer in question on 20th of March, 1998 the pre-emptor discharged her onus and then the onus shifted upon the contesting pre-emptee that he developed the case land in 1994/1995 and then erected the shop rooms therein, but he failed to discharge the said onus. The appellate Court did not at all consider this legal aspect of the case.

64. From the impugned judgment of the High Court Division, it appears that the High Court Division, in fact, did not discuss and consider the evidence on record on the question of limitation on the view that the question of limitation "hinges on the credibility of the witnesses and the trial Court

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A Wahhab Miha, C.J.) J.) Md. Habibur Rahman Bhuiyan and ors. Vs. Most. Galman Begum and ors. (Md.(M Muzammel Hossain,

had the advantage to see the demeanor of the witnesses and as such, its decision in respect of such finding should prevail and accordingly, endorsed the finding of the trial Court on the question of limitation. In this regard, the High Court Division further observed that "The Court of appeal below, on the other hand, did not have the advantage to see the demeanor of the witnesses and as such the finding arrived at by the Court of appeal below as to limitation cannot get preference.

65. In view of the discussions made hereinabove, I do not find anything wrong with the view taken by the High Court Division. Since the trial Court did not consider the question of improvement of the preemptees and the appellate Court found the same at TK.1,50,000.00, the High Court Division considering the admission of the preemptor that the pre-emptees made improvement in the case land at the cost of taka 40,000.00/50,000.00 fixed the development cost at TK.75,000.00. I find the assessment of cost reasonable and based on evidence on record particularly in view of the admitted fact that no documentary evidence was produced in support of the development cost 66. It is true that the judgment of High Court Division is not that happy as it should have been, but I do not find any error in the ultimate decision arrived at by the High Court Division in making the Rule absolute restoring those of the trial Court considering the judgments of the two Courts below.

67. In conclusion, I am of the view that the appellate Court rejected the pre-emption application on total misreading, nonconsideration of the material evidence of the PW s and the OPW's, with reference to the pleading of the parties as well as the settled principle of law in sifting and weighing the evidence of a witness. I would dismiss the appeal without any order as to cost.

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Sd/- M.A. Wahhab Miah, J. 68. Nazmun Ara Sultana, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J. Sd/- N. A. Sultana, J. 69. Muhammad Imman Ali, J: I have gone through the judgments delivered by my learned brothers Surendra Kumar Sinha, J. and Md. Abdul Wahhab Miah, J. I agree with reasons given and the decision arrived at by my learned brother Mr. Md. Abdul Wahhab Miah, J. I would, therefore, dismiss the appeal without any order as to costs.

Sd/- M. Imman Ali, J. 70. Muhammad Mamtaz Uddin Ahmed, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha,J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment of brother Surendra Kumar Sinha, J. Sd/- Md. Mamtaz Uddin Ahmed.

71. Md. Shamsul Huda, J: I have gone through the separate judgments prepared by my learned brother, Surendra Kumar Sinha, J. and my learned brother, Md. Abdul Wahhab Miah, J. I agree with the judgment passed by my learned brother, Surendra Kumar Sinha, J. Sd/- Md. Shamsul Huda COURTS ORDER The appeal is allowed by majority decision without any order as to costs.

Ed.

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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)

petition. But a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, highhanded, arbitrary or unjust is entitled to a hearing of its petition on the merits.

Apparently the petition filed by the Company did not raise any complicated questions of fact for determination, and the claim could not be characterised as frivolous, vexatious or unjust.

The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima-facie unjust, tried".

48. In Veerapa Rachappa Saboji, (AIR 1975 SC 773), the Supreme Court observed "we do not think the High Court Division was right in rejecting the petition of the appellant in limine.

The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection.

They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact.

There was, therefore, no point in refusing to entertain the petition on merits and referring the appellant to a suit. We must in the circumstances, set aside the order of summary reject-

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ion passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents".

49. We do not dispute the statement of law argued in the cases referred to by Dr. Hossain.

These cases are quite distinguishable and not applicable in this case. No case can be an authority on facts. We find no substance in the submission that the High Court Division acted illegally in dismissing the petitions, inasmuch as, the petitions do not involve issues relating to interpretation and construction of law.

50. Now the question is after expressing the desire to retire about one year before making of the impugned orders, the petitioner can challenge the impugned orders? When he has been convinced that he has no legal sanction of law to hold on the office, he has no right to challenge the order of removal. In course of hearing learned counsel also indicated that there is still scope for honourable transition of power if the petitioner is appointed as chairman of the Bank by the Government considering his social status and contribution towards the Bank, and this can be possible if this Division makes observation in this regard.

It is the discretionary power of the Government to appoint the Chairman under the Ordinance and it is not within our jurisdiction.

Since the impugned orders were made on 27th February, 2011 after about one year of writing of the above letter, the issuance of prior notice, in our view, will be an unnecessary exercise.

Therefore, the submission that the Prof.

Muhammad Yunus was removed without affording any opportunity of being heard is contrary to the materials on record, specially when, in the eye of law, he was not ‘removed’ rather, he ceased to hold his office of Managing Director of Grameen Bank by operation of law, on his attaining the age of his

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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)

superannuation. On these facts, it cannot be said that he was dealt with unfairly.

51. Next point is whether the High Court Division acted illegally in dismissing the writ petitions summarily and thereby denied the petitioner access to justice. The main thrust of Dr. Hossain is that the High Court Division ought to have admitted the petitions and should have decided the matters on the basis of the affidavit-in-opposition. This lead us to decide whether the admission of a writ petition, irrespective of its merit, is a sine-qua-non. The power of the High Court Division to issue writ under Article 102 can be exercised for the enforcement of fundamental rights, as well as, of non-fundamental legal rights where the action taken is procedurally ultra vires or where the authority being under an obligation to act judicially, or even quasi judicially, passes an order which is in violation of the principle of natural justice, for safeguarding such fundamental rights of the aggrieved person. When all the facts are on record and the law is clear on the subject, the exercise of jurisdiction in such a case is uncalled for.

52. Similarly, in cases where the question of law or constitutionality urged can be determined only upon investigation into disputed questions of fact, for which there are no materials on the record, or where the facts stated in the petition do not ex facie support the petitioner’s case, but not otherwise or where the petitioner seeks to secure unjust gain, or where the quasi-judicial authority acted without or in excess of jurisdiction or in contravention of the principle of natural justice, the exercise of power may be refused.

We have observed above, there was no infraction of any right of the petitioner as he was holding and continuing in the office of Managing Director of a statutory bank without

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any legal sanction. Or in the alternative, he has no legal authority to hold the office of Managing Director as he has no legal basis to continue in such office after attaining the age of superannuation. In the absence of violation of any mandatory provision of law, the Court will not come in aid to the petitioner as he is a disqualified person to continue in the office of Managing Director.

53. Prof. Muhammad Yunus is a nobel laureate. He is a respectable person not only in Bangladesh but all over the world. He was initially appointed as Managing Director of Grameen Bank by the Government and subsequently the Board reappointed him with prior approval of the Bangladesh Bank. Under such circumstances, the observations of the High Court Division that "a 'squatter' or a 'trespasser' or a 'usurper' can not maintain a writ petition under Article 102" are totally uncalled for in this case and the petitioner was illegally compared with litigants like "squatter, trespasser, usurper". Prof. Muhammad Yunus is neither a 'squatter' nor a 'trespasser' or a 'usurper' of Grameen Bank in any sense.

Rather he is the person on whose ideas and innovative projects for extending collateral free small loans to the rural people, the Bank has been established and it has achieved the prestigious nobel prize as a recognition of its phenomenal success. Therefore, the unnecessary observations as quoted above are totally derogatory which are hereby expunged. It is hoped that the High Court Division should be cautious in future in making any unhealthy observation against any litigant who has come to Court for justice and not for seeking derogatory remarks instead.

54. It is to be remembered that Judges administer justice. In order to do justice, the first and foremost expectation from them is to be just.

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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)

This expectation itself is the fountain source of all that can be put in the realm of canons of judicial ethics. A Judge can not have any predisposed state of mind. His judgment would not be actuated by concerns of private interests or considerations. He has to be decisive. His every action and every word–spoken or written, must show and reflect correctly that he holds the office as a public trust and he is determined to strive continuously to enhance and maintain the people’s confidence in the judicial system. Learning, personality, manners and stature in the judicial functioning matter. A Judge is as much respected as he respects the law, justice, equity and good conscience, and above all serves and seen to serve the cause of justice. It is desirable that the High Court Division should not use such unsophisticated words against a respectable person like Prof.

Muhammad Yunus. The language of the Court should be dignified and the findings should confine to the issues involved in the matter.

55. Like a Judge, a lawyer is a functionary of the judicial system with powers and duties as important as those of Judges. Lawyers are an important limb in the administration of justice.

Their duty to the cause of justice is even superior. Their first obligation is to assist the Courts to the best of their ability so that justice can be done, so much so that only the legal profession is deservingly called a learned profession. It has high standards to keep abreast. That is why the profession commands respect. A lawyer’s advanced education, training, knowledge and skill in the field of law, apart from his duty to the client, are the attributes to his tradition in the practice of law.

Instances are not rare to find where lawyers in their over-zealousness to protect the interest of their clients have chosen to go over-board to the extent of submitting misleading facts and law. In the words of Justice Sir Maurice

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Gwyer, “Every member of the Bar is a trustee for the honour and prestige of the profession as a whole.” He said, every member of the Bar must bear in mind that it is expected of him that “never by any act or word of his will he show himself unworthy of the great tradition which he has inherited.”

56. We would like to observe that the writ petition filed by 9(nine) Directors is not maintainable on two grounds firstly, they are not 'aggrieved persons' within the meaning of Article 102 of the Constitution and secondly, since the aggrieved person Prof. Muhammad Yunus having challenged the impugned orders himself, they have no locus-standi to challenge the same orders by a separate petition for, if such process is allowed multiplicity of proceedings would crop up and there would be likelihood of conflicting decisions over the same subject matter, in which event, instead of doing justice, the ends of justice would be defeated. The High Court Division declared the Regulations of 2001 being inconsistent with section 14 of the Ordinance invalid. True, a Subordinate law can not supersede the parent law but since no rule was issued in these matters, the High Court Division is not justified in declaring Regulations of 2001 invalid.

57. Though we do not approve of all the findings and observations of the High Court Division, we fully agree with its ultimate decision that there are no merits in the writ petitions. Thus, these petitions merit no consideration which are dismissed with the above observations.

The parties would bear their respective costs.

Ed.

I LNJ (2012) Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/S. Al-Razib Traders (A.F.M. Ali Asgar, J.) 533

papers and documents submitted by the parties and some of them are admitted documents and in such circumstances the learned District Judge passed the impugned judgment in according with section 7 (A) of the Arbitration Act, 2001. ‌.(1, 3, 20 and 20).

A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172, Managing Director, Rupali Bank Limited and others Vs. Tafazal Hossain and others 44 DLR(AD) ref.

Mr. Mahabubay Alam, Senior Advocate with Mr. M. Aminuddin, Advocate and Mr. Md. Harun-Or-Rashid, Advocate ----For the Petitioner Mr. A. F. Hassan Ariff, Senior Advocate with Mr. Md. Musharraf Hossain Mojumder, Advocate.

--- For Opposite party

Judgment A. F. M. Ali Asgar, J: This rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 09.01.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the second party/petitioners from making any construction over the suit property should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. Pending hearing of the rule, the petitioners were permitted to complete the construction of the 3rd floor at their own risk.

3. Fact relevant for the purpose of disposal of the rule in short are that

The opposite party herein as petitioner filed an application under Section 12 of the Arbitration Act, 2001 for appointment of Arbitrator in the Court of learned District Judge, Dhaka which was registered as Arbitration Miscellaneous Case No. 477 of 2010.

The case of the 1st Party before the learned District Judge is that; a. That the 1st party is a bonafide contractor doing construction business and the second party are the registered Co-Operative Society of the Rajuk Employees and run by its by-laws b. That the Second party got 2 bighas of land from Rajuk by a registered lease deed and they decided to construct a 10 storied building therein to raise fund. c. The petitioner was appointed as contractor/Developer and agreement was executed in that behalf and a power of attorney was executed infavour of the 1st party. Subsequently by amending the agreement the arbitration clause was incorporated. d. Thereafter a new committee of the second party was elected and in the Extra Ordinary General Meeting and annual general meeting was held and power of attorney was retified with certain amendment. e. Thereafter 1st party under took the foundation work. The further case of the 1st party is that they have invested 6.5 crores Taka and there was no investment of the 2nd party and has constructed building upto 3rd Floor and has paid Tk. 1 crore and 10 lacs as profit of allotment of shop and spaces to the second party.

534 Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/S. Al-Razib Traders (A.F.M. Ali Asgar, J.)

f.

As per the amended agreement the 2nd party was promise bound to got the 4th Floor to 6th Floor constructed by the 1st party but in violation of the contract they made advertisement for construction of space/floor from 4th Floor to 9th Floor and in such circumstances the 1st party issued a legal notice and also requested by writing letter to the 2nd party for issuance of work order for construction 4th and 5th Floor as per the agreement.

g. That in the above circumstances the 1st party filed the application for appointment of arbitrator.

4. During pendency of the said Arbitration Miscellaneous case the 1st party filed an application under order 39 rule 1 and 2 of the code of the civil procedure and section 7 (A), (E) of the Arbitration Act 2001 with a prayer for temporary injunction. The application was filed on 08.9.2010.

5. That against the said application filled by the 1st party the 2nd party appeared before the Court and contested the said application for injunction by filing written objection and denied all the material allegation made in the said application.

6. The learned District Judge after hearing both the parties was pleased to allow the application under order 39 rule 1 and 2 of the Code of Civil Procedure and 7 (A) (E) of the Arbitration Act and passed order of temporary injunction on 09.1.2011 on allowing the said application for temporary injunction restraining the rule petitioner i.e. the 2nd party of the arbitration case from making any construction on the land in question as mentioned in the schedule of the application.

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7. Against the aforesaid order dated 09.1.2011 the present petitioner as appellant filed F.M.A. No 63 of 2011 before this Court and after filing of the appeal the appellants as petitioner filed an application for stay and the High Court Division issued a Civil Rule on 21.3.2011 and also passed an ad-interim order of stay.

Subsequently the respondent filed a Civil Miscellaneous petition before the Appellate Division and the Appellant Division by the order dated 29.5.2011 directed a Division Bench of this Court to hear the matter by 12.6.2011 and allowed the order of status-quo granted by the learned Judge in Chamber to continue till the date i. e. 12.5.2011.

8. When the appeal was taken up for hearing by a Davison Bench of this Court it came to discussion and light that in view of the provision of section 48 of the Arbitration Act the appeal is not maintainable accordingly the appellant did not pressed the appeal and by the order dated 22.6.2011 the appeal and the rule were dismissed for non prosecution. Thereafter the appellants of the said Miscellaneous appeal i.e. the 2nd party of the arbitration proceeding as petitioner filed a civil revisional application as per provision of section 115(1) of the Code of Civil Procedure against the Judgment and order dated 9.1.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the rule petitioner i.e 2nd party making any construction on the land in question. At the time of the issuance of the rule the rule issuing Court was pleased to issue an ad-interim order in the like manner “pending hearing of the rule, the petitioner are permitted to complete the construction of 3rd floor at their own risk� .

9. Against the aforesaid order dated 7.4.2011 permitting the 2nd party rule petitioner to

I LNJ (2012) Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/S. Al-Razib Traders (A.F.M. Ali Asgar, J.) 535

complete the construction of the 3rd floor at their own risk the opposite party i.e. the 1st party of the arbitration proceeding filed provisional civil petition for Leave to Appeal No. 568 of 2011 in the Appellate Division and the honorable Judge in Chamber was pleased to disposed of the said provisional civil petition for Leave to Appeal No. 568 of 2011 finding that “In view of the submission of the learned counsel Respondent No. 1 is directed not to construct beyond 3rd floor till disposal of the revisonal application” vide order date 25.7.2011.

10. Meanwhile, the opposite party filled an application for vacating the order dated 19.7.2011 passed by this Court in the civil revision permitting the petitioner to complete the 3rd floor at their own risk at the time of issuance of the rule.

11. When this application for vacating the order of stay came up for hearing before this Court on 19.7.2011 this Court after hearing both the parties and on the verbally undertaking given by Mr. Aminuddin the learned advocate for the petitioner that he has already instructed from his client not to proceed with construction of 3rd floor till disposal of the rule under that circumstance since both the parties agreed on this point to get the civil revision heard and disposed of and the mater was fixed for hearing and on conclusion of hearing the Court delivers this judgment.

12. At the very beginning of hearing Mr. Mahabubey Alam, the learned advocate appearing on behalf of the rule petitioner has submitted that the learned District Judge while acting as presiding Judge in arbitration proceeding has no power to issue an order of injunction.

13. Mr. Mahabubay Alam referring to section 2(b) of the Arbitration Act, simultaneously he

has submitted that section 7 (A) of the Arbitration Act contained ouster of jurisdiction of Civil Code.

14. As such accordingly Mr. Mahabubey Alam the learned advocate for the petitioner submitted that the order of injunction passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 is ifsofacto an illegal order which can not be sustainable in law, accordingly, he prays that the impugned order is liable to be set aside and the rule be made absolute.

15. In support of his argument Mr. Mahabubay Alam has referred to a case of our Appellate Division being the case of A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172.

16. The case referred to by Mr. Mahabubay Alam although related to matter in respect of Election Tribunal and Election Appellate Tribunal which is not exactly in agreement with the facts of the case before us. Even than the principle that has been laid down in the aforesaid case being almost similar in nature with the present case as because the District Judge was Election Appellate Tribunal Judge and here the District Judge has been given power as per provision of section 12 of the Arbitration Act wherein our Appellate Division found that the District Judge acting as an election appellate tribunal is not a person designate but a Court subordinate to the High Court Division’’. In this view of the matter although Mr. A. F. Hassan Ariff the learned advocate appearing on behalf of the opposite parties has very strenuously submitted that no appeal or revision lies against an order passed

536 Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/S. Al-Razib Traders (A.F.M. Ali Asgar, J.)

by the District Judge in a arbitration case as per provision of Arbitration Act so the District Judge here is not amenable to the High Court Division. Mr. Hassan Ariff further submits that arbitration act is a special law for adjudication of the dispute between the parties who agreed for holding of arbitration as such it shall prevail over general law. And Mr. Ariff further submits that the Arbitration Act of 2001 is substantive as well as a procedural law. Where right of appeal has been specifically provided within the frame work of arbitration act and no provision of revision has been created in the arbitration act so no Civil Revision will lie in the High Court Division.

17. He next submits that since the statute has given no right to the litigant to file civil revision in the High Court Division and the arbitration act does not provide such jurisdiction to the High Court Division to exercise such power under arbitration act. The present Civil revisional application under section 115(1) of the Code of Civil Procedure is not at all maintainable and the same is liable to be dismissed and the rule be discharged accordingly.

18. In support of his submission Mr. A. F. Hassan Ariff has referred to a decision of our Appellate Division being the case of Managing Director , Rupali Bank Limited and others Vs. Tafazal Hossain and others reported in 44 DLR(AD) 260 wherein it has been found by our lordships in the Appellate Division “ Relation between general law and special law availability of remedy – If any legal remedy is ordinarily available under both general law and special law, the remedy prescribed by the special law must be sought in exclusion of the one available under the general law”.

19. The most pertinent question which has been agitated and opposed by the petitioner and opposite parties is regarding maintainability of the civil revision in the High Court Division against the order of ad- interim

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temporary injunction passed by the learned District Judge in arbitration Miscellaneous case; this point is main issue to be decided here.

20. On perusal of the papers and documents filed by both the parties in as much as after hearing both the parties, the rule petition and the counter affidavit filed by the opposite party and since it is agreed point that the learned District Judge issued order of temporary injunction in pursuance of Provision of section 7(A) kha and Ummo of the Arbitration Act of 2001 which has been amended in 2004. Thus I find that the learned District Judge has rightly and legally passed the order being enabling him by section 7 (A) of the Arbitration Act. Regarding the maintainability of the civil revision the point that has been submitted by Mr. Hassan Ariff that no civil revision or appeal shall lie against an order passed by the District Judge, I am unable to accept the contention of Mr. Ariff. In my view since there is provision of appeal as per provision of section 48 of the Arbitration Act although in respect of very specific limited ground even than there is provision of appeal and although the arbitration act does not specifically provided for revision against an order passed by the District Judge in arbitration Miscellaneous case even then in view of the decision that has been referred to by Mr. Mahabubey Alam the learned advocate for the petitioner being the case reported in 38 DLR (AD) 172 I hold the same view that as a District Judge while he is acting in pursuance of the statute enabling him by section 12 of the arbitration act as well as section 7(A) of the Arbitration Act. He is performing duty as a Judge of the civil jurisdiction and he is not a person designate but a Court subordinate to the High Court Division. Under that circumstance I find that this civil revisional application is maintainable.

21. Now I am to find regarding the merit and veracity of the order of injunction passed by the learned District Judge. I have gone through

Vs. Bangladesh and others, AshfaqulTraders Islam, J.) I LNJ (2012) Rajuk KarmachariOrarunnessa Bahumukhi Samabaya Samity and another Vs.(Md. M/S. Al-Razib (A.F.M. Ali Asgar, J.) 537

the impugned order which I find to be a well discussed and well evaluated order referring to the facts and circumstance and merit of the case referred to by both 1st party and opposed by the 2nd party and the learned District Judge after perusal of all the papers and documents he has passed the impugned order rightly after evaluating the papers and documents submitted by the parties and on certain facts and circumstance which are admitted by both the parties Under that circumstances the learned District Judge being empowered by section 7(A) of the Arbitration Act on very meticulous discussion of facts and circumstances and materials available from the papers and documents submitted by the both the parties was pleased to pass an order of temporary injunction till disposal of the arbitration miscellaneous case. At the same time the learned District Judge directed both the parties to take appropriate step for quick disposal of the arbitration miscellaneous case.

22. So I do not find any cogent reason to interfere with such well evaluated and well discussed order of injunction passed by the learned District Judge. Thus I find no merit in the rule.

23. In the result, the rule is discharged without any order as to costs. The impugned order of temporary injunction passed by the learned District Judge on 09.1.2011 in Arbitration Miscellaneous case No 477 of 2010 is hereby maintained.

24. The learned District Judge is directed to hear and disposed of the Arbitration Miscellaneous case No. 477 of 2010 within 6(six) months from date of receipt of the copy of this judgment.

Send a copy of this judgment to the Court of the learned District Judge as expeditiously as possible.

HIGH COURT DIVISION (Special Original Jurisdiction) }

Mr. Md. Ashfaqul Islam, J.

}

Osarunnessa ...Petitioner.

And

Vs.

Mr. Mustafa Zaman Islam, J. Judgment 12.03.2012

}

}

Bangladesh and others. ...Respondents.

Constitution of Bangladesh, 1972 Article 102 Artha Rin Adalat Ain (VIII of 2003) Section 34 (12) Admittedly, the petitioner was arrested on 5.6.2008 vide order dated 30.4.2008 and was released from civil imprisonment after serving more that six months on 27.11.2008. According to the provisions of section 34(12) of the Artha Rin Adalat Ain, 2003 the petitioner cannot be put to civil imprisonment for the second time and hence the impugned order is exfacie illegal without any lawful authority and is of no legal effect. ..(6 and 8)

Mr. Harunur Rashid, Advocate.

--For the petitioner.

None appears

‌For the respondents.

Judgment

Md. Ashfaqul Islam,J: At the instance of the petitioner Osarunnessa, this Rule Nisi was issued calling upon the respondents to show cause as to why the Order no.17 dated 25.01.2011 passed by the learned Judge, Artha Rin Adalat No.1, Dhaka in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B in violation of Section 34 of the Artha Rin Adalat Ain, 2003 and order 21 Rule 37 and section 56 of the Code of Civil Procedure shall not be passed without lawful authority and is of no legal effect.

Ed. Writ Petition No. 4038 of 2011

544

Uniroyal Securities Ltd. Vs. The Commissioner of Taxes, Dhaka, (Md. Ashfaqul Islam, J.)

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been filed by the applicant against an order of the Taxes Appeal Tribunal, Division Bench-5 Dhaka, passed in Income Tax Appeal No.4408 } Uniroyal Securities Mr. Md. Ashfaqul of 2008-2009 (Assessment year 2007- 2008) Islam, J. Ltd. dated 30.07.2009 arising out of the order dated } ...Applicant.

And 20.04.2009 of the Deputy Commissioner of Vs. } Taxes, (Appeal) Taxes Appeal Zone-3, Dhaka Mr. S.M. Emdadul The Commissioner in First Appeal No.159/Coy’s Circle-15/Taxes Hoque, J. } of Taxes, Taxes Zone-05/2008-2009.

Judgment Zone-05, 2nd 12th 2. Facts leading to the filing of this Reference 21.03.2011 } Storied building Application, in short, are that the applicant is Segun Bagicha, } Dhaka, Bangladesh. engaged in share trading business as a limited ...Respondent. company and a regular tax payee. Under section 53BBB of the Ordinance as a regular tax payee he paid tax at the rate of 0.015% at Income Tax Ordinance (XXXVI of 1984) source on the value of shares, debentures, Sections 52BBB, 53BBB, 82 (c) (4) and 106 (1) mutual funds, bonds or securities transacted by On a plain reading of the provisions of the the company at the time of payment for such sections 52 BBB, 82(c)(2)(1c) and 82 (c)(4) of the Income Tax Ordinance, 1984, the irresisti- transaction. The applicant submitted his return ble and only inference that can be drawn is showing his income in two heads (i) income that the tax that has been levied at source from share trading business and (ii) income under section 53 BBB is the final discharge of from bank interest. The Applicant has no case tax liability within the meaning of section against the Respondent’s decision on the 82(c)(4).This is a special privilege that has second head i.e. bank interest income. The been given by the legislature to a certain group applicant has paid tax of Tk. 3,15,396/= at the of persons dealing with some particular rate of 0.015% on turnover of Tk. business and in all fairness the legislature 210,26,39,696/= and has shown Tk. never wanted that they should be taxed twice.

11,355.09.52/- as an income, less tax deducted ….(11 and 12) at source, as per section 82C(4) of the Income Tax Ordinance. The applicant showed his Mr.Rafiq-ul-Haq, Senior Advocate with expenditure from that tax deducted income at Ms.Nazmus Saliheen, Advocate ...For the Applicant. source and computed GP at Tk. 26,34,703/-.

HIGH COURT DIVISION (Special Original Jurisdiction)

Mr.Md Abdur Rahim Bhuiyan, D.A.G with Ms.Mahfuza Begum, A.A.G ... For respondent Judgment Md. Ashfaqul Islam,J: This Reference application under section 160(1) of the Income Tax Ordinance, 1984 (hereinafter referred to as Ordinance, 1984) has Income Tax Reference Application No. 433 of 2009.

3. It has been further stated that this Division in Desh Petroleum Service Co. Ltd. vs.

Commissioner of Taxes, Zones-5 12 MLR 48 has decided that “As per section 82©(4), the tax amount deducted or collected on account of supply of goods of execution of contract falling under section 52 shall be deemed to have fully discharged from tax liability. The further levy of taxes by the Deputy Commissioner of Taxes is illegal” and this judgment has become a

I LNJ (2012)

Uniroyal Securities Ltd. Vs. The Commissioner of Taxes, Dhaka, (Md. Ashfaqul Islam, J.)

binding precedent. The Deputy Commissioner of Taxes (hereinafter called DCT) misunderstood the law and served a notice under 83(1) and 79 of the Ordinance for personal hearing and following notices the applicant through his Authorized Representative made submission that the Deputy Commissioner of Taxes deducted the bank interest income from the shown GP at Tk.26,34,703/- and considering the rest Tk.19,91,452/-as net income, made a bad calculation and imposed tax of Tk.7,88,490/- at the rate of 40%. The Deputy Commissioner of Taxes most arbitrarily imposed double tax on the applicant, which was a flagrant violation of the decision referred to above.

4. The applicant being aggrieved by the assessment order by the D.C.T. preferred appeal before the Commissioner of Taxes (Appeal) on the same ground but the Commissioner of Taxes (Appeal) failed to grasp the error in proper understanding of law and upheld the decision of the Deputy Commissioner of Taxes. Thereafter the applicant moved before the Tax Appellate Tribunal again on the same ground. The Tribunal even upheld the decision of the Commissioner of Taxes (Appeal) against which this Reference Application has been preferred in which following questions have been framed :“A. Whether, on the facts and in the circumstances of the case, the Tribunal was justified under section 53BBB, 82C(2)(1e) and 82C(4) of the Income Tax Ordinance in rejecting the appeal.”

5. By filing supplementary affidavit the petitioner also formulated two questions of law to be added with the paragraph 13A. Those are as under –

545

“B. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in imposing double tax on the Applicant ?

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not considering the Applicant’s payment of tax at source under section 53BBB on their deemed income as per section 82C (1e), as Applicant’s final discharge of tax liability under section 82C(4).”

6. Mr. Rafiq-ul Huq, the learned Senior Advocate appearing with Ms. Nazmus Saliheen, the learned counsel on behalf of the applicant in his submission mainly highlighted and emphasized question of law as envisage in supplementary affidavit in particular the question of law (C).

The bone of his contention is that as per section 82(C )(4) of the Ordinance the tax amount deducted or collected at source in terms of 52BBB of the Ordinance shall be deemed to have been finally discharged from tax liability. The further levy of taxes by the Deputy Commissioner of Taxes is illegal. He placed reliance on the decision of 12 MLR 48 as referred to above.

7. Mr. Abdur Rahim Bhuiyan, the learned Deputy Attorney General appearing with Mrs. Mahfuza Begum, the learned Assistant Attorney General, on the other hand, by filing affidavit-in-opposition, on behalf of the respondent opposes the reference application and submits that the Appellate Tribunal was justified in law in rejecting the appeal as the D.C.T. made assessment computing income of Tk. 7,88,490/- under section 82C on the basis of tax deducted at source under section 53BBB at Tk. 3,15,396/- @ 0.015% against commission received at Tk. 1,13,55,091/-

546

Uniroyal Securities Ltd. Vs. The Commissioner of Taxes, Dhaka, (Md. Ashfaqul Islam, J.)

against purchase and sales of shares of Tk. 210,26,39,696/-. The assessee declared return of his income showing net profit of Tk. 26,34,703/- inclusive of interest income (FDR) Tk. 6,43,251/-. So the D.C.T. computed income under section 82 Cat Tk. 7,88,490/-, interest income (FDR) Tk. 6,43,251/- and the rest amount of declared returned income was computed as Deemed Income of the assessee at Tk. 12,02,962/- in accepting the total income declared by the assessee company.

8. He referred to section 82C(5) and submits that the case of the applicant falls under the said provision and hence the principle enunciated in 12 MLR is not applicable in the instant case.

9. We have heard the learned Senior Advocate for the applicant and the learned Deputy Attorney General at length and considered their submissions. We have also carefully gone through the Reference application and the different Annexures thereto. For proper answer of the questions formulated in this Reference it would be profitable to go through the relevant provisions of the Ordinance on this behalf. Section 52 BBB states:“The Chief Executive Officer of a stock exchange shall collect tax at the rate of [ zero point zero five percent (0.05%)] on the value of shares, debentures, mutual funds, bonds or securities transacted by a member of a stock exchange at the time of payment for such transaction.]”

Next section 82( C )(2) (le) states:“The amount received on account of transaction by a member of a stock exchange for which tax is collectible under section 53BBB.”

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10. This provision was inserted Ordinance by Finance Act, 2006.

in

the

Then comes Section 82 (C)(4) which reads as follows: “Income referred to under sub-section (1) in respect of which tax has been deducted or collected on account of ……………………… transaction by a member of any stock exchange under section 53BBB, …………………………. shall be deemed to be the final discharge of tax liability under this Ordinance ” (Underlined by us) 11. On a plain reading of all these provisions together the irresistible and only inference that can be drawn is that the tax that has been levied at source under section 53 BBB is the final discharge of tax liability within the meaning of section 82 (C ) (4). Regard may be taken to the pertinent portion of the decision referred to above. In that decision his Lordships clearly observed in paragraph 8 as under :“The admitted position is that the applicant submitted its return for the assessment year 1999-2000 showing net income of Tk.2,31,3457/- from its business of carrying contract and it also appears that the tax deducted from its income of Tk.2,03,49,305.41 at source at the prescribed rate on the basis of circular No.2 (Tax) 1999-2000 dated 23.9.1999 read with Rule -16 of the Income Tax Rules 1984, as of date, amounts to Tk.6,10,480100, and the same has been accepted by the Deputy Commissioner of Taxes.”

12. It would be relevant to mention in this context that the forgoing provisions are almost all new enactments and there are no provisions as such to this effect in the Income Tax ordinance 1922. Therefore, it is our considerate view that this is a special privilege that has

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been given by the legislature to a certain group of persons dealing with some particular business and in all fairness the legislature never wanted that they should be taxed twice. In the above decision we also find reflection of the view taken by us and for that reason the submission of the learned Deputy Attorney General that this case comes within the purview of section 82( C ) (5) has no legs to stands since Sec 82(C)(5) concerns about excess amount of expenditure categorized under Section 19 of the Ordinance.

(Underlings are mine) 13. Section 82 ( C ) (5) runs as follows: “Where an assessee, while explaining the nature and source of any sum, investment, money, valuable article, excess amount of expenditure referred to in section 19, takes into account any source of income which is subject to tax in accordance with the provisions of the section, he shall not be entitled to take credit of any sum as is in excess of any amount which, if taxed at a rate or rates, other than the rate applicable to income chargeable to tax under this section, would have resulted in tax liability equal to the tax payable in respect of income under this section.”

(Underlined by us) 14. The inevitable result that follows that this Reference Application should be allowed in favour of the applicant.

15. Thus, we are of the view that questions of law as framed by the applicant in the Reference Application are answered in the negative and in favour of the applicant. Accordingly, the Reference Application is allowed without any order as to cost.

The Registrar of the Supreme Court is directed to take necessary steps under section 162 of the Ordinance.

Ed.

547

Securities The of Commissioner of Taxes, Dhaka, (Farah (Md. Ashfaqul Islam, J.) J.) Md. Uniroyal Shahjahan Mia Ltd. Vs. Vs. Govt.

Bangladesh and others Mahbub,

HIGH COURT DIVISION (Special Original Jurisdiction) Mrs. Farah Mahbub, J.

}

And

}

Mr. Farid Ahmed, J.

Md. Shahjahan Mia ...Petitioner.

Vs.

}

Judgment 11.08.2011 }

The Government of Bangladesh, and others ...Respondents.

Constitution of Bangladesh, 1972 Article 102 Admittedly, bringing some allegations the petitioner was suspended from his post which was challenged through a Suit. Then the Governing Body withdraw the order of suspension and the suit was also withdrawn and he joined in his post. During the suspension period the petitioner received 50% of his suspension allowance but the balance 50% was kept in the account of the College.

The Government Pleader also opined to return the balance 50% of the MPO of the petitioner.

Hence the petitioner is entitled to receive the balance amount which was unduly kept in the Collage account and are now lying in the Government Treasury. … (8 to 10)

Mr. Farid Uddin Ahmed, Advocate …..For the Petitioner Mr. A.H.M Mashfiqur Rahman, Advocate …. For Respondent No. 7 Judgment Farah Mahbub, J. In this rules issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondent nos. 1-5 have been called upon to show cause as to why they should not be directed to make payment to the petitioner of his entire arrear dues of Writ Petition No. 10794 of 2007.

538

Osarunnessa Vs. Bangladesh and others, (Md. Ashfaqul Islam, J.)

I LNJ (2012)

2. The background leading to the Rule, in short, is that the husband of the petitioner approached the respondent Bank for House Building Loan and on 24.12.1990 Tk. 75,000/sanctioned for staff house building loan and on 28.10.1993 Tk. 20,0000/- for motorcycle loan.

The petitioner is the guarantor of the loan.

Petitioner gradually paid loan for Tk. 22,674/but due to various reasons failed to adjust dues of the Bank. Respondent No. 3 Manager Janata Bank, Local Office, Dulkusha, Dhaka on 29.4.2003 filed a suit before the learned Artha Rin Adalat No.1, Dhaka, for recovery of money inclusive interest amounting to Tk. 14,05,888/- and the said suit was registered as Artha Rin Suit No. 423 of 2004.

submits that the impugned order is exfacie illegal and not sustainable under law since the petitioner had already been arrested pursuance to Artha Rin Adalat’s order which she served out and hence as per section 34(12) of the Ain she cannot be put to civil imprisonment again.

3. The suit was decreed exparte in the year 2004 followed by Artha Execution Case No.87 of 2005. In the Execution Case property was sold in auction on 07.03.2007. The Bank then filed second Execution Case No. 195 of 2007 (Annexure-A). In that Second Execution case on 25.01.2011 the Bank filed an application praying for issuing warrant of arrest of the petitioner for realizing all dues and the Court issued warrant of arrest as prayed on 25.01.2011 (Annexure-B and B1).

“GB AvB‡bi Aax‡b †Kvb wWµx ev Av‡`k ev¯—evq‡bi D‡Ï‡k¨ cwiPvwjZ Rvix gvgjvq, Rvix gvgjvi msL¨v GKvwaK nB‡jI †Kvb GKRb `vwqK‡K †MÖdZvi Kwiqv cwic~Y© †gqv‡`i Rb¨ GKevi †`Iqvbx KvivMv‡i AvUK ivLv nB‡j, Zvnv‡K cybe©vi †MÖdZvi Kiv I †`Iqvbx KvivMv‡i AvUK Kiv hvB‡e bv|

4. The petitioner was arrested on 05.06.2008 vide order No. 8 dated 3.4.2008 and thereafter on 27.11.2008 the Court released the petitioner since she served out more than six months civil imprisonment (Annexure-D). Thereafter by the impugned order No. 17 dated 25.01.2011 again warrant of arrest has been issued against the petitioner against which the petitioner moved this Division and obtained the present Rule and stay.

5. Mr. Md. Harunur Rashid, the learned counsel appearing on behalf of the petitioner after placing the petition, impugned order and other Annexures with the petition mainly

6. The Rule is not opposed by the respondents. However, Mr. S.M. Moniruzzaman, the learned counsel candidly submits that the law is very much clear on this issue and the petitioner on that score cannot be put to civil imprisonment for the second time.

7. Heard the learned counsels for both sides and considered their submissions. Section 34(12) states as follows:

8. Admittedly the petitioner was arrested on 5.6.2008 vide Order No.8 dated 30.4.2008 and was released after serving more than six months on 27.11.2008 (Annexure-D). Therefore, as per section 34(12) the petitioner cannot be put to civil imprisonment for the second time and for that reason we hold that the order impugned against is exfacie illegal and without any lawful authority and is of no legal effect.

9. With these observations the Rule is made absolute. The order No. 17 dated 25.11.2011 passed by the Artha Rin Adalat No.1 in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B(i) is declared to have been passed without lawful authority and is of no legal effect and hereby set aside.

Communicate this order at once.

Ed.

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551

(AD) 39; Balwant Singh–Vs- The State Bank of India and others, AIR 1976, Punjab & (Civil Appellate Jurisdiction) Haryana, (Full Bench)316;Mst. Chandani –VsMr. Farid Ahmed, J. } Rajasthan State and others, AIR 1962, Quaderabad Estate Rajasthan 36; Jobeda Khatun –Vs- Momtaz And } Housing Begum and others 45 DLR (AD)31;P.R. } Limited Mr. M. Enayetur Sukeshwala and another –Vs- Dr. Devadatta ...Appellant. V.S. Kerkar and another AIR 1995, Bombay, Rahim, J. } Vs. 227; Fisheries Research Institute and others – Judgment } Vs- Mr. Bhuyain Ltd and others 4 G.K.Moinuddin 21.07.2010 BLC,126;Gutte–Vs- Punno AIR 1963, Madhya } Chowdhury and Prodash 96; Bangladesh Power Development others } Board and others –Vs- Md. Asaduzzaman ...Respondents. Sikder 8 MLR (AD),241; Khandkar Abul } Hussain –Vs- Government of the People’s Republic of Bangladesh and others 54 DLR Code of Civil Procedure (V of 1908) 467; Abdul Jalil and other –Vs- Islami Bank Order VII, rule 11 and Bangladesh 20 BLD (AD)278, ref.

Arbitration Act (I of 2001) Mr. Abdul Quayum, Advocate Section 7 ---For the Appellant.

A suit can be proceeded splitting up the plaint against those defendants, against Mr. Shah Md. Khasruzzaman, Advocate whom the cause of action exist. It is ---For the Respondent No. 1 admitted in the plaint that regarding 56 transfer deeds and plots of schedule ‘B’ an Mr. A. Z. M Mohiuddin, Advocate ---For the Respondent Nos. 2, 8, 10, arbitration took place and award had 13, 17, 43 & 50. already been passed on those disputes against which an Arbitration Miscellaneous Judgment case has been filed before the learned District Judge , Dhaka which is pending. M. Enayetur Rahim, J: But with regard to 21 deeds out of 77 Plaintiff has preferred this appeal being transfer deeds of schedule ‘B’ to the plaint aggrieved by the judgment and decree dated and plots relating thereto, were not referred 06.11.2007 passed by the learned Joint District to the Arbitration Tribunal and the award Judge, 3rd Court, Dhaka in Title Suit No.19 of has got no manner of connection with the 2007 rejecting the plaint of the suit under the said 21 transfer deeds for which the suit is very much maintainable regarding those 21 provision of order VII Rule 11(d) of the Code transfer deeds. Hence the plaint cannot be of Civil Procedure, read with section 7 of the rejected as a whole. An application for Arbitration Act, 2001. rejecting the plaint can be filed before 2. Plaintiff appellant instituted Title Suit No. submitting written statement. .....(17 to 20) 19 of 2007 in the 3rd Court of Joint District Ismat Zerin Khan –Vs-The World Bank and Judge, Dhaka impleading the present others, 11 MLR (AD)58; Syed Masud Ali and respondents as defendants for a declaration that others –Vs- Md. Asmatullah & others 32 DLR the deeds of transfer described in the scheduleB to the plaint are void illegal, inoperative and not binding upon the plaintiff and for recovery First Appeal No. 49 of 2008.

HIGH COURT DIVISION

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Quaderabad Housing Estate Ltd. Vs. G.K. Moinuddin Chow. and others (M. Enayetur Rahim, J.)

of khas possession of the land described in the schedule to the plaint after evicting the defendants No. 2-83.

3. Plaintiff’s case, in short, is that the plaintiff Quaderabad Housing Estate Ltd. is a Private Limited Company duly registered at the office of Register Joint Stock Companies and the plaintiff company was framed to carry on business on real state, building, apartment and other business. The properties descried in schedule ‘A’ to the plaint were purchased by late Abdul Qader Chowdhury, Abdul Momin Chowdhury, Abdul Barek Chowdhury and Abdul Barek and sons limited on different dates and years from the rightful owners and possessors. After such purchase they mutated their respective names in the office of the Revenue Authority, paid rent and got rent receipts. Subsequently amicable agreement was made between them and according to the said amicable agreement Abdul Momin Chowdhury got the landed properties described in schedule‘A’ to the plaint. Abdul Momin Chowdhury also purchased some properties, which form part of the schedule-‘A’ property. He also amalgamated his own purchased property with that of the inherited properties and for better and more beneficial use of the properties he desired to form a Real Estate Business and Alhaj Abdul Momin Chowdhury was made the Managing Director of the Company. The power of issuing allotment of plot, receipt of consideration, execution, registrations of document absolutely vest with the Managing Director Mr. Abdul Momin Chowdhury. The Articles of Association of the company do not empower any other Director to transfer the properties of the Real Estate. Mr. G. K. Moinudddin Chowdhury, the defendant No.1 is the eldest son of Alhaj Abdul Momin Chowdhury. He was not promoter director or a share holder of the Real Estate Company. The

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defendant No.1 was adopted a Director of the Real Estate Company on 28.08.1996 on allotment of 1000 shares. As per internal management of all the companies, business of the family was amicably arranged. The defendant No.1 was given responsibility of Qaderabad Housing Estate to look after the affairs of the company to manage, maintain, and prevent encroacher/ trespassers. He was also assigned to procure buyers of the plots, negotiate sale and he would introduce the buyers with the Managing Director and duly inform the buyers terms and conditions. The buyers have to pay the price as per terms of the memorandum and Articles of Association to the Managing Director and the Managing Director used to receive consideration, execute and register due conveyance of sale. Many plots have sold in the aforesaid manner. The defendant No.1 was not and is not empowered to transfer or execute any document of transfer.

The Managing Director is the only person to execute the deed of transfer. The defendant No.1 in violation of the terms and conditions of the Memorandum of Article of Association transferred the plots numbering 54 secretly to different persons. He in collusion with buyers executed the deeds of transfer without the knowledge of the Managing Director. He received the consideration money, executed and registered deeds of sale in favour of the defendants No.2–55(b) illegally using the name of the company. The transfer, execution of the documents of the transfer and registration are all illegal, voids inoperative and collusive. The company is not bound by the illegal and unauthorized acts of defendant No.1. The defendants No.2-55(b) have not acquired any right, title and interest by virtue of those illegally created documents. The plaintiff company does not recognize them as purchasers/ allottees of the plots. When this

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Quaderabad Housing Estate Ltd. Vs. G.K. Moinuddin Chow. and others (M. Enayetur Rahim, J.)

forgery was detected the Managing Director, other Directors of the company became bewildered. In order to save the reputation of the plaintiff company and also to resolve the misunderstanding the dispute was referred to the Arbitration of 2(two) gentlemen namely Mr. Abdul Gafur Mazumder and Mr. Wahidar Rahman by a written reference dated 06.02.2006. The Arbitrators were to give the award within a period of 04.05.2006. The Arbitrators committed gross misconduct and gave a biased award and legalized the illegal acts of the defendant No.1 and the plaintiff company became prejudice. Against the said award the Managing Director and other Directors of the company have filed Arbitration Miscellaneous Case No. 764 of 2006 before the District Judge, Dhaka for setting aside the award dated 04.05.2006. The defendant No.1 during the period of arbitration proceedings and from the date of award till date also transferred 54 plots to the defendants No. 255(b). The plaintiff company was not a party to the arbitration agreement, the share holders of the plaintiff company and other companies referred the dispute for arbitration. The defendant No.1 has not honoured the award.

He has been selling the plots of the company beyond the alleged award. He has not taken any step to transfer his shares of the plaintiff company and other companies to his father Alhaj Abul Momin Chowdhury. He has been flouting the terms of the award. The defendant No.1 has sold the properties by executing and registering sale deeds. The registered sale deeds can be cancelled only by a decree of the competent civil court. The arbitration proceeding ended with the award. The Managing Director of the Company on various dates cautioned the members of the Public not to purchase property/ plots from defendant No.1 by publishing public notices in the daily

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news papers. He also wrote letters to the SubRegistrar, Mohammadpur, Chairman RAJUK, Assistant Commissioner (Land), Chairman House Building Finance Corporation and requested not to deal with the forged and collusive transfer made by the defendant No.1 in collusion with other defendants. The schedule land measuring total area 214.373 (Katha) as transferred by the defendant No.1 to the other defendants by the deeds as described in schedule-‘B’ to the plaint are void, illegal inoperative and not binding on the plaintiff company and liable to be cancelled. A cloud has been cast upon the title of the plaintiff company by the creation of schedule-‘B’ sale deeds.

4. The defendant-respondent No.1 after entering into the suit filed an application under Order VII Rule 11 (d) of the Code of Civil Procedure read with section 7 of the Arbitration Act, 2001 for rejection of the plaint of the suit stating, inter alia, that on mere reading and going through the plaint it becomes clear that the plaintiff company categorically admitted in paragraph-9 of the plaint that the Managing Director and other Directors of the company to resolve misunderstanding amongst themself referred the disputes to the Arbitration of 2 Arbitrator namely Mr. Abdul Gafur Majumder and Mr. Wahidur Rahman by a written reference dated 06.02.2006 (Memorandum of understanding) and the said Arbitrators gave an award on 04.05.2006. It also admitted that on behalf of the present plaintiff company the Managing Director and other Directors of the company have already filed Arbitration Miscellaneous Case No.764 of 2006 in the Court of District Judge, Dhaka for setting aside the award and said Miscellaneous Case is still pending. It was further stated in the said application that from the averments made in the plaint the plaintiff

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admitted that the Managing Director and the others Directors of the plaintiff company were the parties to the Arbitration agreement dated 06.02.2006 as well as the award dated 04.05.2006 and the defendant No.1 was the other party of the same Arbitration agreement and award. The subject matter and or determining issues of the said Arbitration agreement and award as well as the subject matter and or determining issues of the present suit are same and that the present suit arising out of the same disputes, which have already been amicably settled and resolved by the family settlement acknowledged by both the parties through execution of a Memorandum of Understanding and or Arbitration agreement on 06.02.2006, followed by an award dated 04.05.2006 regarding the same schedule of deeds of transfer and plots and other related maters as it is most pertinently evident from the copy of the award filed by the plaintiff company through firisty. The instant suit is neither maintainable nor entertainable in its present from and nature and the jurisdiction of the same is barred under section 7 of the Arbitration Act (Salishi Ain) 2001 and hence the plaint of the present suit is liable to be rejected. It was also stated in the application that a fruitless litigation can not allowed to be continued for ends of justice and thus the plaint of the instant suit was liable to be rejected under section 151 of the Code of Civil Procedure.

documents and since the defendant No.1 committed fraud and for that the cause of action has been clearly stated in paragraph 12 of the plaint. The disputes referred to the Arbitrators by the majority directors against the defendant No.1 the plaintiff Housing Estate Ltd. was not a party in the arbitration agreement. Moreover, the alleged arbitration agreement concluded by an illegally obtained award dated 04.05.2006. The present suit has been filed on 05.10.2006. The proceeding was not pending at the time of institution of the suit.

The Arbitration Miscellaneous Case No.764 of 2006 has been filed by Mr. Abdul Momin Chowdhury and other Directors for setting aside the award and this Miscellaneous Case is not an appeal and not continuation of the disputes and as such the suit is maintainable and the application under order VII rule 11(d) for rejection of the plaint of the suit is liable to be rejected.

5. The plaintiffs filed written objection against the said application denying the material statement made on it stating, inter alia, that the defendant No.1 obtained an illegal and biased award. He was barred from selling any of the property. But he did not comply with the terms of the award. He has also transferred 21 plots after filing of the suit. The plaintiff has clear cause of action for cancellation of

8. Mr. Abdul Quayum, learned Advocate of the plaintiff appellant submits that the learned Joint District Judge erred in law in rejecting the plaint of the suit inasmuch as he failed to consider and appreciate the purport and scope of order VII rule 11 of the Code of Civil Procedure. He further submits that before filing written statement the rejection of the plaint on the ground of maintainability of the suit is not

6. The learned Joint District Judge after hearing the said application by the order dated 06.11.2007 allowed the application under order VII rule 11(d) read with section 7 of the Arbitration Act, 2001 and rejected the plaint of the suit holding that in view of the provision of section 7 of Arbitration Act, 2001 the suit is barred.

7. Against the said judgment and decree the plaintiff has preferred this appeal before this Court.

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Quaderabad Housing Estate Ltd. Vs. G.K. Moinuddin Chow. and others (M. Enayetur Rahim, J.)

permissible in law. In this connection he refers the case of Ismat Zerin Khan –Vs-The World Bank and others, reported in 11 MLR (AD) Page-58. Mr. Quayum admitting the provision of section 7 of the Arbitration Act, 2001 submits that the subject matter of disputes which referred to the arbitration can not be the subject matter or issues in the present suit and same is barred under the said law. But he extraneously argues that the subject matter of dispute or issue with regard to the properties and plots of schedule-‘B’ to the plaint, which were not referred to the arbitration, in respect of those properties and plots and deeds of transfer the present suit is very much maintainable and the learned Joint District Judge in rejecting the plaint of the suit as a whole failed to consider and appreciate this legal aspect of the present suit. The learned Advocate drew our attention to schedule-‘B’ to the plaint, where description of the sale deeds and plot members, which sought to be cancelled have been mentioned and submits that from the said schedule it is evident that 77 sale deeds in respect of 77 plots have been mentioned but the arbitration took place with regard to 56 plots only and as such the sale deeds and plots which were not the subject matter or issue in arbitration proceeding, the suit is vary much maintainable in respect of those sale deeds and plots. In support of his contention he referred the case of Syed Masud Ali and others –Vs- Md. Asmatullah & others reported in 32 DLR (AD) page 39, where their lordships held that the plaintiffs suit to the extend of 2nd schedule land was dismissed as not maintainable but they may proceed with regard to the 1st schedule land if the plaintiff is so desired to proceed. He also refers the case of Balwant Singh–Vs- The State Bank of India and others, reported in AIR 1976, Punjab & Haryana, (Full Bench) Page-316 and the case

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of Mst. Chandani –Vs- Rajasthan State and others, reported in AIR 1962, Rajasthan Page36. In those cases it was held that plaint disclosed cause of action in respect of particular claim against some of the defendants, the plaint can not be rejected in its entirety.

9. On the other hand Mr. Shah Md. Khasruzzaman, learned Advocate appearing on behalf of the defendant respondent No.1 submits that the application under order VII rule 11 of the Code of Civil Procedure is very much maintainable before filing the written statement and he submits that at any stage of the suit the application under the said order is entertainable and maintainable. It is at all not necessary to wait for filing of the written statement and in support of his said contention he refers the case of Jobeda Khatun –VsMomtaz Begum and others reported in 45 DLR (AD) Page-31 and the case of P.R. Sukeshwala and another –Vs- Dr. Devadatta V.S. Kerkar and another reported in AIR 1995, Bombay, Page 227. Mr. Zaman further submits that the learned Joint District Judge considering the provision of section 7 of the Arbitration Act, 2001 rightly rejected the plaint of the suit holding that the suit is barred under the provision of section 7 of the Arbitration Act, 2001 and it is now settled principle of law that where the parties to a dispute have pursued arbitration proceeding resulting in an award, none of them can after the award is made, get rid of it by ignoring the same. He referring the paragraph-9 of the plaint argues that the plaintiff admitted that to resolve misunderstanding they referred the dispute to the arbitration of 2(two) gentlemen by a written reference dated 06.02.2006 and award has been passed on the selfsame disputes and thus the suit or the same issue/ dispute is not maintainable and the Trial Court did not

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Quaderabad Housing Estate Ltd. Vs. G.K. Moinuddin Chow. and others (M. Enayetur Rahim, J.)

commit any error or illegality in rejecting the plaint. He also submits that the suit can not be proceeded for part claim/claims by split up the plaint as argued by the learned Advocate of the appellant. Mr. Khasruzzaman, to substantiate his argument referred the case of Fisheries Research Institute and others –Vs- Mr. Bhuyain Ltd and others reported in 4 BLC, Page-126, the case of Gutte–Vs- Punno reported in AIR 1963, Madhya Prodash Page96 and the case of Bangladesh Power Development Board and others –Vs- Md. Asaduzzaman Sikder reported in 8 MLR (AD), Page-241. In those cases it has been held that the subject matter of the arbitration proceeding, where ultimately an award was given, on the same cause of action, the Civil Suit is barred under the Arbitration Act and the plaint was rejected under Order VII Rule 11 of the Code of Civil Procedure.

10. Mr.A.Z.M. Mohiuddin, the learned Advocate appearing for the respondent Nos. 2, 8, 10, 13, 17, 43 and 50, though the said respondents did not file any application under order VII rule 11 of the Code of Civil Procedure before the trial Court, adopting the legal submission of the learned Advocate of the respondent No.1 submits that Mr. Alhaj Abdul Momin Chowdhury, the Managing Director of the plaintiff company is the father of the defendant No.1 and the father and sons with an ill motive for illegal gain and to harass the purchaser defendants collusively instituted the present suit. He also refers the decisions cited

by Mr. Zaman.

11. Heard the learned Advocate of the respective parties, perused the impugned judgment and decree, the relevant documents before us.

12. In view of the submission of the learned Advocate of the respective parties moot

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question before us is that whether the plaint of the present suit be rejected as a whole or the suit can be proceeded splitting up the plaint against some of the defendants, against whom the cause of action exist.

13. The facts of the case of Syed Masud Ali and other versus Md. Asmatullah and others reported in 32 DLR (AD) Page-39, as referred by the learned Advocate of the plaintiff appellant, was that a Title Suit was filed in the Court of Munsif challenging the enrolment of Waqf in view of Sections 50 and 102 of the Waqf Ordinance, 1962. In the said suit the plaintiff divided the suit properties under two schedules and had claimed ownership and possession over both of them. With regard to the first schedule plaintiff sought a declaration of his title but with regard to the 2nd schedule he prayed not only title to the land but for nullification of the enrolment made by the Administrator of Waqfs. The defendant entered appearance in the said suit and before filing written statement raised the question of competency of the suit and the trial Court and High Court Division in revision concurrently held against the defendant that is refused to reject the plaint. Appellate Division in appeal considered whether the said suit regarding 2nd schedule land was competent. Appellate Division allowed the said appeal in part and set aside the decision of the High Court Division and trial Court and held to the effect: “The plaintiff’s suit to the extent of 2nd schedule land is dismissed as not maintainable but the suit may proceed with regard to the first schedule land of the plaint if the plaintiff so desire to proceed.”

14. In the case of Khandkar Abul Hussain – Vs- Government of the People’s Republic of Bangladesh and others reported in 54 DLR

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Quaderabad Housing Estate Ltd. Vs. G.K. Moinuddin Chow. and others (M. Enayetur Rahim, J.)

page 467, a Division Bench of the High Court Division has held: “When two distinct causes founded on distinct and separate allegations are brought before the Court and if one cause is clearly barred under any provision of law the court is authorized under the law and can legitimately try other cause for granting relief which is not related to the barring provision”.

15. In the said case it has also been held: ”The Subordinate Judge could have split up the suit for trying the second cause which is for damages for defamatory statement and for implicating the plaintiff in a false case.”

16. In the case of Mst. Chandani –VsRajasthan State and other, reported in AIR 1962 Rajasthan, Page-86 it has been held: “The plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law; that rule, however, would be attracted into its full application where the suit as a whole would be so barred, and different considerations may reasonably arise where such a suit happens to be barred against some of the defendants but may still be good, against the others.”

17. In view of the above proposition of law we have no hesitation to hold that a suit can be proceeded splitting up the plaint against those defendants, against whom the cause of action exist.

18. In the instant case the plaintiff in the plaint admitted that with regard to 56 deeds of transfer and plots of schedule-‘B’ arbitration

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took place on the basis of a mutual agreement; an award has already been passed on those disputes/issues and challenging the said award Arbitration Miscellaneous Case No.764 of 2006 filed by the plaintiff before the learned District Judge, Dhaka is still pending. This admission of the plaintiff from a plain reading of the plaint appears to us that the suit with regard to 56 deeds of transfer and plots of schedule-‘B’ is barred by the provision of section 7 of the Arbitration Act, 2001. But 21 deeds out of 77 deeds of transfer of schedule‘B’ to the plaint and the plots relating to said 21 sale deeds were not referred to the Arbitration tribunal as per the Arbitration agreement dated 06.02.2006 and the award dated 04.05.2006 has got no manner of relation/ connection with the said 21 deeds of transfer and as such the suit is very much maintainable with regard to those 21 deeds of transfer and plots. Thus the learned Joint District Judge erred in law in rejecting the plaint of the suit as a whole.

19. The submission of Mr. Quayum relying the decision reported in 11 MLR (AD) Page-58 that the application under order 7 rule 11 is not maintainable before filing the written statement is not applicable in the instant case. In the case of Abdul Jalil and other –Vs- Islami Bank and Bangladesh reported in 20 BLD (AD) Page278, it has been held: “A plaint may be rejected under Order 7 Rule 11 of the Code merely on a plain reading of the plaint but in exceptional circumstances the Court may invoke its inherent jurisdiction and can throw the plaint out in limini.

The plea of implied bar should be

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Quaderabad Housing Estate Ltd. G.K. Moinuddin Chow. and Karim, others (M. The State Vs. Vs. Shahdat (Syed Md. Ziaul J.)Enayetur Rahim, J.)

decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under section 151 of the Code.”

20. From the said judgment it also appears to us that in the suit the defendant did not file any written statement and on behalf of the defendant the argument was made that written statement had not been filed by the defendant, despite that the Appellate Division has taken the above view. Further it appears from the case of Syed Masud Ali and other -Vs- Md. Asmatullah and others reported in 32 DLR(AD), Page-39, which was cited by Mr. Quayum, that in the said case before filing the written statement defendant raised the question of competency of the suit. As such the submission of Mr. Quayum that before filing the written statement the application under order 7 rules 11 (d) is not maintainable is not tenable in law.

21. Having discussed as above we find merit in the appeal. The appeal is allowed-in-part.

The judgment and decree dated 06.11.2007 is hereby modified to the effect that the suit will proceed with regard to 21 sale deeds and plots out of 77 sale deeds and plots of schedule-‘B’ to the plaint, which were not referred to the Arbitration tribunal as per agreement dated 06.02.2006 and not the subject matter and or issue of the award dated 04.05.2006. The plaintiff is at liberty to amend the plaint for getting appropriate relief from civil Court.

However, there is no order as to costs.

Send down the lower Court records at once.

Ed.

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HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Syed Md. Ziaul Karim, J. And Mr. A.N.M. Bashir Ullah, J. Judgment 23.01.2012

} } }

} } }

The State ...Appellant.

Vs. Shahdat (absconding) ...Condemned Prisoner

Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000) Section 11(1) The evidence of all the prosecution witnesses in respect of demanding dowry and causing death by the condemned prisoner while she was in the custody of her husband are consistent, uniform and corroborative with one another in all material particulars. The impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. The prosecution has successfully proved the charge against the condemned prisoner. ....(29, 38 and 39) Evidence Act (I of 1872) Section 106 Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the wife was with the custody of her husband, then the accused husband under Section 106 of the Evidence Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death. ...(30)

Death Reference No. 51 of 2006.

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution cannot be accepted. The Court can not fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by this Court. Government have got no authority and jurisdiction to exercise the power under Article 49 of the Constitution but it can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict in suitable cases. Government in exercising power under Article 49 of the Constitution exceeded its jurisdiction. ... (12, 14, 25 and 26)

Constitution of Bangladesh, 1972 Article 49 Code of Criminal Procedure (V of 1898) Section 401 (1), 498 and 561A From the order dated 12.04.1993 it is evident that in the said order nothing has been mentioned with regard to the Criminal appeal.

In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrender-red to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was

517

made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order. After disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 section of the Code of Criminal Procedure he was fugitive from justice and as such this Court is unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant Sessions Judge, Cox’s Bazar. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power. On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

When the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive.

Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

it was an attempt of the petitioner to mislead the Court. The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court. … (30, 31, 39, 40, 47, 58, and 62)

Maru Ram vs. Union of India, AIR 1980 (SC), 2147, Kehar Singh -Vs- Union of India AIR 1989(SC), 653 , Swaran Singh–Vs- State of U.P. and others (1998) SCC,75 , Shatapal and another –Vs- The State of Hariana, AIR 2000(SC), -1702, Chand –Vs- Crown, PLD 1956 (FC), 43, Gul Hassan –Vs- The State, 21 DLR (SC), 109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –Vs- ATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45 ref.

Mr. Md. Tamizuddin, Advocate with, Mr. S.M. Zafar Sadeque, Advocate and Mr. Mohammad Ali, Advocate ----For the Petitioner Mr. M.H. Sarder, DAG with, Mr. Gazi Md. Mamunur Rashid, AAG and Mr. Md. Asaduzzaman, AAG ---- For the State Judgment M. Enayetur Rahim, J: At the instance of the petitioner on an application under Section 561A read with section 498 of the Code of Criminal Procedure the instant Rule was issued on the following terms; “Let a Rule be issued calling upon the opposite party to show cause as to why the

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First Court of Assistant Sessions Judge, Cox’s Bazar shall not be directed to give effect to the order of remission of sentence of the petitioner in ST No.25 of 1987 as passed by the President being Memo No.143-P45/92(Kara-2) dated 12.04.1993 as communicated to the petitioner by Memo No.3-16/92 dated 08.06.1993 of the opposite-party and why the warrant of arrest and warrant of commitment as issued on 30.06.1997 against the petitioner shall not be recalled by setting aside the orders dated 30.06.1997 and 31.08.1997 passed in ST No.25 of 1987 and/ or to as such other or further order or orders as to this Court may seem fit and proper.”

2. In the application under section 561A of the Code of Criminal Procedure the petitioner stated that the petitioner along with others (in total 15 persons were put on trial before the 1st Court of Assistant Sessions Judge Cox’s Bazar, (that was performing the function of Additional Sessions Judge at the relevant time) in Sessions Trial No.25 of 1987 arising out of Tekhnaf Police Station Case No.8(7)/81.

3. On conclusion of the trial the petitioner along with two others were found guilty under Sections 304/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 10(ten) years with a fine of Tk.10,000/-(ten thousand), in default, to suffer rigorous imprisonment for further period of 2(two) years.

4. Being aggrieved by the said judgment and order of conviction and sentence the petitioner along with two others preferred Criminal Appeal No.611 of 1989 before the High Court Division. While the said appeal was pending the petitioner was enlarged on bail by an order dated 28.08.1991. Eventually, a Division Bench of the High Court Division after hearing the appeal by its judgment and

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order dated 22nd and 23rd September,1992 dismissed the same and affirmed the conviction under Sections 304/34 of the Penal Code; but modified the sentence from 10(ten) years to 8(eight) years.

5. The President of Bangladesh by order being No.143-P-45/92(Kara-2) dated 12.04.1993 was pleased to remit the sentence of the petitioner along with two others as passed by the 1st Court of Assistant Sessions Judge, Cox’s Bazar in Sessions Trial No.25 of 1987 on 08.06.1989 in exercising the power under Article 49 of the Constitution and section 401 of the Code of Criminal Procedure. The said order was communicated, among others, to the Deputy Commissioner Cox’s Bazar who then communicated the same to the Solicitor, Ministry of law, Justice and Parliamentary Affairs by his Memo No.316/92-435/1(3)/J:M: dated 08.06.1993; pursuant to the said order the other two convict who were in jail were released on receipt of the said order of the President.

However, neither the Ministry of Law, Justice and Parliamentary Affairs nor the Deputy Commissioner, Cox’s Bazar ever communicated the said order of remission of sentence of the petitioner to the trial Court. Due to noncommunication of the aforesaid order of remission of sentence of the petitioner by the President the learned Assistant Sessions Judge by its order dated 30.06.1997 had issued warrant of arrest and conviction warrant against the petitioner holding that he (petitioner) did not surrender after the disposal of the appeal to serve out the remaining sentence as held by the High Court Division. On coming to know about the said issuance of the warrant of arrest and warrant of commitment the petitioner on 18.08.1997 filed an application in the Court of Assistant Sessions Judge through his engaged Advocate

519

for recalling the warrant of arrest and warrant of commitment in view of the order of remission of the sentence passed by the President submitting a copy of the same. The learned Assistant Sessions Judge, after hearing the said application and the respective parties by the order dated 31.08.1997 rejected the application holding that the Court rightly and lawfully issued the warrant of arrest as well as the conviction warrant as the petitioner did not surrender before the trial court complying the direction of the High Court Division and after issuance of the warrant of arrest the petitioner became fugitive from justice and after his surrender there might be a scope to give effect of the order of the Ministry of Home affairs as claimed by the petitioner.

6. Being aggrieved by the said orders and to give effect the order of remission of sentence the petitioner obtained the present Rule.

7. Mr. Md. Tamizuddin, the learned Advocate appearing on behalf of the petitioner with Mr. S.M. Zafar Sadeque and Mr. Mohammad Ali, the learned Advocates, submits that since the President remitted the sentence of the accused petitioner in exercise the power as conferred in Article 49 of the Constitution of the People’s Republic of Bangladesh the learned Assistant Sessions Judge is liable under the law to give effect to the order of the President and in not doing so he committed serious illegality and exceeded its jurisdiction. Mr. Tamijuddin further submits that there is no legal justification for the petitioner to surrender before the Court in order to give effect the order of remission of sentence as observed by the learned Assistant Sessions Judge as he is not required to do so in view of the President’s order and as such the impugned orders are liable to be quashed

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and this Court in exercising power under Section 561A of the Code of Criminal Procedure may interfere with the impugned orders and to give effect to the order of the President dated 12.04.1993 remitting the sentence of the petitioner.

8. Mr. M. H. Sarder the learned Deputy Attorney General appearing with Mr. Gazi Md. Mamunur Rashid and Mr. Md. Asaduzzaman, the learned Assistant Attorneys General, submits that the memo dated 12.04.1993 by which the sentence of the petitioner has been remitted was issued by the Ministry of Home Affairs and it was the decision of the President as well as the Government.

9. It is to be noted here that when the matter was taken up for hearing, on perusal of the Photostat copy of the order dated 12.04.1993, annexed with the application, some doubt was created in our mind about the same and to remove our said doubt we directed the Deputy Attorney General and the Assistant Attorney General present in the Court to produce the relevant file with regard to the remission given to the petitioner by the President, in exercising Power under Article 49 of the Constitution as well as under Section 401(1) of the Code of Criminal Procedure. Eventually, the learned Deputy Attorney General frankly expressed their inability in presenting the relevant file as the concerned Ministry failed to supply the file to the office of the Attorney General. In such facts and circumstances we directed the Secretary, Ministry of Home Affairs to produce the file and at one stage we had compelled to issue Suo-Motu Rule for contempt against the Secretary, Ministry of Home affairs. In that event, the learned Deputy Attorney General by filing an

affidavit informed the Court that the relevant file had been misplaced. The concerned officers of the Ministry have been trying to trace out the said file. However, a photostat copy of the order of remission to the petitioner attested by the Assistant Inspector General of Prison and authenticated by the Deputy Secretary Ministry of Home Affairs has been annexed with the affidavit.

10. The order of remission of the sentence of the petitioner dated 12.04.1993, annexureA, to the application under Section 561A of the Code of Criminal Procedure runs as follows; B−cn −k−qa¥ p¡S¡fË¡ç Bp¡j£ kb¡œ²−j (1) p−l¡u¡l L¡j¡m (2) j£l L¡−nj J (3) cl−hn Bm£ phÑ p¡w- e¡CLÉwM¡m£, ®VLe¡g b¡e¡ j¡jm¡ ew 8(7)81 d¡l¡ 304/34/109/323/324 ¢h¢f¢p ®Øfn¡m VÊ¡Ch¤e¡m j¡jm¡ ew 25/87 d¡l¡ 304/34 ¢h¢f¢p−a ¢h‘ ¢hQ¡l¡c¡ma p−l¡u¡l L¡j¡m, j£l L¡−nj J cl−hn Bm£−L ®c¡o£ p¡hÉÙ¹¹ L¢lu¡ 8-689Cw a¡¢l−M fË−aÉL−L 10 (cn) hRl L¢lu¡ L¡l¡cä Hhw 10,000/-(cn q¡S¡l) V¡L¡ S¢lj¡e¡ Ae¡c¡−u c¤C hR−ll L¡l¡c−ä c¢äa L−le; 2z ®k−qa¥ plL¡l E−õ¢Ma Bp¡j£ kb¡œ²−j p¡−l¡u¡l L¡j¡m, j£l L¡−nj J cl−hn Bm£l p¡S¡ jJL¥−gl ¢pÜ¡¿¹ NËqe L¢lu¡−R; 3z HMe ®k−qa¥ h¡wm¡−cn pw¢hd¡−el 49 ew Ae¤−µRc Hhw ®g±Sc¡l£ L¡kÑ¢h¢dl 401(1) d¡l¡ rja¡h−m plL¡l E−õ¢Ma j¡jm¡l Bp¡j£ p¡−l¡u¡l L¡j¡m, j£l L¡−nj J cl−hn Bm£l p¡S¡ jJL¥g L¢lu¡−Rez 4z HC B−cn Ae¢a¢hm−ð LkÑÉL¡l£ qC−hz l¡øÊf¢al B−cnœ²−j (¢cml¦h¡) ¢p¢eul pqL¡l£ p¢Qhz

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

ew 143/1(6)/¢f-45/92 (L¡l¡-2) 12-04-93q~w 29-12-99h¡w

a¡¢lMx

Ae¤¢m¢f AhN¢a J fË−u¡Se£u hÉhÙÛÉ¡ NËq−Zl SeÉ −fËle Ll¡ qCm x(1) p¢Qh, l¡øÊf¢al p¢Qh¡mu, hwNihe, Y¡L¡z (2) p¢Qh, fËd¡e j¿»£l L¡kÑÉmu, f¤l¡ae pwpc ihe, ®aSNy¡J, Y¡L¡z (3) jq¡-f¤¢mn f¢lcnÑL, f¤¢mn pcl cçl, Y¡L¡z (4) jq¡- L¡l¡ f¢lcnÑL, L¡l¡ A¢dcçl, Y¡L¡z (5) ®Sm¡ fËn¡pL, LLÈh¡S¡l HC fËpw−N ay¡q¡l pÈ¡lL ew 3-16/99-9095/®SHj a¡¢lM 15-12-91Cw Hl hl¡−az (6) Ef-jq¡L¡l¡ f¢lcnÑL, ®L¾cУu¡ L¡l¡N¡l, L¥¢jõ¡z

QVÊNË¡j

¢hi¡N,

(¢cml¦h¡) ¢p¢eul pqL¡l£ p¢Qhz 11. It appears from the above order that the case number has been mentioned as Special Tribunal Case No.25 of 1987. But fact remains that the petitioner was convicted in Special Trial Case No.25 of 1987. In the above order of remission of sentence the case number has not been mentioned correctly, which clearly shows non application of mind of the authority concerned. Further in the said memo it has been written as under: ---------------------------------------------------z 2z ®k−qa¥ plL¡l E−õ¢Ma Bp¡j£ kb¡œ²−j p¡−l¡u¡l L¡j¡m, j£l L¡−nj J cl−hn Bm£l p¡S¡ jJL¥−gl ¢pÜ¡¿¹ NËqe L¢lu¡−Re; 3z HMe ®k−qa¥ h¡wm¡−cn pw¢hd¡−el 49 ew Ae¤−µRc Hhw ®g±Sc¡l£ L¡kÑ¢h¢dl 401(1) d¡l¡ rja¡h−m plL¡l E−õ¢Ma j¡jm¡l Bp¡j£ 1z p−l¡u¡l L¡j¡m, 2z j£l L¡−nj J cl−hn Bm£l p¡S¡ jJL¥g L¢lu¡−Re;

521

(the under line has given by us) 12. The above language of the order also has raised a pertinent question in our mind how the Government had exercised the power under Article 49 of the Constitution, the power which must be exercised by the President as per the Rules of Business. Since the Government failed to produce the relevant file and in the affidavit the State (opposite party) did not state any fact with regard to the same it is not possible for us to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived us to answer properly all those questions. This dark part of the process of remission of sentence is unlikely to see the light. But we are of the view that Government has got no authority and jurisdiction to exercise the power under Article 49 of the Constitution. Government can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict. In the present Case the Government in exercising power under Article 49 of the Constitution, as it evident from the order dated 12.04.1993, exceeded its jurisdiction.

13. Similar question has been settled in the case of Maru Ram Vs. Union of India, reported in AIR 1980 (SC), page 2147. In the said Case it has been held; “It is apparent that superficially viewed, the two powers, one constituteonal and the other statutory, are coextensive. But two things may be

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similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the State. The source is different, the sub-stance is different, the strength is different, although the stream may be flowing along the same bed.”

14. Mr. Tamizuddin, the learned Advocate for the petitioner has tried to convince us that the Court may only inquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution.

15. So far our knowledge goes neither the Appellate Division nor the High Court Division of our Supreme Court has decided the issue whether the court particularly the High Court Division in its appropriate jurisdiction has any power or authority to examine the exercise of power under Article 49 of the constitution by the President. But the Supreme Court of India in several cases has decided the power and jurisdiction of the Court in the above issue.

16. It is pertinent to mention here that Article 72 and Article 161 of the Constitution of India are similar to Article 49 of our Constitution. Article 72 and 161 of the Constitution of India have conferred power upon the President of India and the Governor of the States respectively to give pardon or remit sentence of a convict.

17. In the Case of Maru Ram –Vs- Union of Indian, reported in AIR(SC)1980, page-2147, it has also been held that;

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“Considerations for exercise of power under Articles 72/ 161 may be myriad and their occasions protean and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or malafide. Only in these rare cases will Court examine the exercise.”

18. In the case of Kehar Singh -Vs- Union of India reported in AIR 1989(SC), page-653, it has been held that; “Upon the consideration to which we had adverted, it appears to us clear that the question as to the area of President’s power under Art. 72 falls squarely within the judicial domain and can be examined by the Court.”

19. In the case of Swaran Singh–Vs- State of U.P. and others, reported in (1998) SCC, page-75, it has been held that; “In view of the said aforesaid settled legal proposition, we can not accept the rigid contention of the learned counsel of the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrary, malafide or in absolute disregard of the finer canons of the constitutionalism, the by product order can not get the approval of law and in such cases, the judicial hand must be stretched to it.”

20. In the above case Shri Doodh Nath, an MLA of the Uttar Pradesh Assembly, was convicted of the offence of murder and sentenced to imprisonment for life. But within a period of less than two years, he succeeded

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to come out from prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence.

That order of the Governor was challenged before the High Court of Allahabad by the son of the deceased, Swaran Singh. A Division Bench of High Court dismissed the petition on the premise that a decision of the Governor under Article 161 of the Constitution of India is not justiciable. Against the said order of the High Court, Swaran Shing moved before the Supreme Court. The Supreme Court of India ultimately quashed the order of remission of sentence of convict Shri Doodh Nath, an MLA of Uttar Pradesh, on the ground that Governor was not posted with material facts and thereby, he was apparently deprived of the opportunity to exercise the powers in a fair and just manner.

And the Supreme Court of India held that; “the order now impugned fringes on arbitrariness.”

And the Court also quashed the said order of remission of sentence.

21. In the case of Shatapal and another –VsThe State of Hariana, reported in AIR 2000(SC), page-1702, similar view has been reiterated. In the said case also the order granting pardon was set aside on the ground that Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by the Court.

22. In the above case the order of the Governor of State of Haryana granting pardon remitting the unexpired portion of the sentence on prisoner Shri Siriyans Kumar Jain, who belonged to ‘Bharotio Janata party’, in exercise of power conferred by Article 161

523

of the Constitution of India was challenged by one of family members of deceased Krishan Kumar who was murdered during a local Government election held in the year 1987.

The trial court convicted Siriyans Kumar Jain and four others under Section 302 read with 149/120B of Indian Penal Code and sentenced each of them for imprisonment for life. On appeal the High court of Panjab and Haryana maintained the conviction of 2(two) persons but acquitted Siriyans Kumar Jain and two others from the charges brought against them.

Against the said order of acquittal the State of Haryana preferred appeal before the Supreme Court of India. Ultimately, the Supreme Court of India set aside the order of the acquittal of accused Siriyans Kumar Jain and another and they were directed by the Supreme Court to surrender to custody in order to serve out the remaining part of their sentence. Convict Siriyans Kumar Jain instead of surrendering to serve the sentence, as directed by the Court, filed an application before the Governor invoking the provision of Article 161 of the Constitution of India. The concerned authority after taking opinion of the Legal Remembrance placed the file before the Chief Minister, who agreed with the opinion of the legal Remembrance that this is fit Case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. The Governor finally granted pardon on the basis of the advice of the Chief Minister.

23. In deciding the merit of the above appeal the Supreme Court of India categorically held that; “There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do not contain any

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a malafide one or the Governor has passed the order on some extraneous consideration.”

24. In the above mentioned Case the Supreme Court of India observed that certain vital facts concerning the prisoner were not placed before the Governor particularly the fact that the Supreme Court of India by its Judgment and order dated 10.12.1998 set aside the order of acquittal directing Seriyans Kumar Jain to surrender to custody in order to serve out the remaining part of his sentence and he did not comply with the said Court’s order and on 25.10.1999 when the order was passed he was not confined in jail and he only surrendered before the Court of Sessions, Hissar on 02.02.1999 and also was released on the very same day in view of the Governor order dated 25.01.1999. In the said Case the ultimate conclusion of the Court is as under:

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“In the aforesaid premises, we have no hesitation to come to the conclusion that the order in question has been vitiated and the Governor has not been advised properly with all the materials and, therefore, we have no other option than to quash the said order dated 05.01.1999.”

25. In view of the above proposition of law of this Sub continent, though those are not binding on us; but it has got persuasive value, we are unable to accept the submission of the learned advocate of the petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution.

26. Thus, we are of the view that the Court can not fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by the Court. The Court can not be debarred to examine the decision making process and the correctness of the decision itself.

27. Bearing in mind the above proposition of law, let us now decide the fate of the present Rule.

28. At the outset, it is necessary to mention that we are conscious about the jurisdiction of this Bench that this Bench has no power to

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deal with the constitutional matter. But to decide the issue involved in the Rule particularly, the terms of the Rule, where the petitioner has sought direction to give effect the order of pardon remitting his sentence, we can not fold our hands off and shut our eyes from examining the order dated 12.04.1993 of the Ministry of Home Affair’s to remit the sentence of the petitioner.

29. Since the Government failed to produce the relevant file we called for the record of Criminal Appeal No.611 of 1989 from our record room. It appears from the said record that the judgment and order of the High Court Division dated 22nd and 23rd September, 1992 along with the lower Court was sent to the Court below on 19.12.1992. At the time of disposal of the appeal the appellant was directed to surrender before the trial Court to serve out his remaining sentence.

30. Mr. Tamizuddin, the learned Advocate of the petitioner submits that while the petitioner was inside the jail before granting bail by the High Court Division, the wife of the petitioner filed an application to the President for pardon and remission of the sentence of the petitioner and he was on bail when the order of remission of sentence was passed. In absence of the original file it is very difficult to determine when the application of the petitioner’s wife was filed before the competent authority and was placed to the concerned Ministry and before the President; what materials were placed or posted before the President or the Government in support of the prayer of pardon of the petitioner; whether any information as to the dismissal of the Criminal Appeal No.611 of 1989 and maintaining the conviction by the High Court Division with the copy of the judgment and order were at all placed before the President

525

or the Government. But from the record before us it manifests that though at the time of disposal of the appeal the High Court Division directed the petitioner to surrender to the trial Court, the petitioner without complying the said order of the High Court Division had pursued for his pardon. We have already noticed that on 19.12.1992 the judgment and order along with lower Court record was sent to the court below and the order of pardon was passed on 12.04.1993. It is clear that in between the said period the petitioner was an absconder and fugitive from law and justice. In the application for pardon addressed to the President, as evident from supplementary affidavit filed by the petitioner, a date has been mentioned as 13.06.1991 with regard to the preparation of the application; but there is no proof of it that on that particular date the application for pardon was filed by the wife of the petitioner to the competent authority in order to place it before the President. On perusal of the said application it appears to us that in the said application not a single word has been mentioned or stated about the pendency of Criminal Appeal No.611 of 1989 before the High Court Division. Even in the application dated 18.08.1997 filed before the Assistant Sessions Judge Cox’s Bazar by which the petitioner prayed for recalling the warrant of arrest also did not mention about the judgment and order of the High Court Division passed in Criminal Appeal No.611 of 1989 and as well as the direction given to him to surrender to serve out the remaining Sentence. From the order dated 12.04.1993 it is also evident that in the said order nothing has been mentioned with regard to the Criminal appeal. In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrendered to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order.

31. Even if, we accept the statement of the petitioner as true that while he was inside the jail his wife made the application before the authority concerned; in that situation after disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process.

32. In view of the above facts and circumstances it is a pertinent question when a person is fugitive from law and justice in that situation whether the President or the Government can give pardon or remit the sentence of a fugitive in exercising extraordinary power under Article 49 of the Constitution or under Section 401(1) of the Code of Criminal Procedure, as the case may be.

33. To decide the said issue it is relevant to discuss the proposition of law enunciated by our Appellate Division with regard to fugitive.

34. It is the consistent view of our Appellate Division that a man who seeks justice from the Court of law must come before the Court

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to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistance of the process of justice in order to claim right of audience against the process of the Court issued against him. In the cases of Chand –Vs- Crown, reported in PLD 1956 (FC), page-43, Gul Hassan –Vs- The State, reported in 21 DLR (SC), page-109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –VsATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page-25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45, our Appellate Division has enunciated the above proposition of law.

35. In the case of Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others, reported in 15 BLC (AD), page-44 it has been held that; “It is well settled that when a person seeks remedy from a Court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under Section 561A of the Code of Criminal Procedure he ought to submit to the due process of justice. Let it be made clear to him, if it is not already known that Court would not act in aid of an accused person who is a fugitive from law and justice”.

36. In the above case it has also been held that; “Besides, the learned Advocates who move applications for the fugitives shall have to face the consequence of committing contempt of Court.”

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37. The learned Assistant Sessions Judge by its order dated 30.06.1997 issued warrant of arrest as well as the conviction warrant against the petitioner when the Assistant Public Prosecution brought notice of the Court that in compliance of the order of the High Court Division passed in Criminal Appeal No. 611 of 1989 the petitioner did not surrender before the Court concerned to serve out his remaining sentence.

38. On coming to know about the said order the petitioner though his Advocate on 27.08.1997 filed an application to recall the above order dated 30.06.1997 and the Court refused to interfere with the said order of arrest and conviction warrant on the ground that the petitioner being a fugitive can not get justice from the Court unless he surrenders first. The above finding of the learned Assistant Sessions Judge is very consonant with the settled proposition of law that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. Even the petitioner without surrendering to the process of Court moved the application under Section 561A read with Section 498 of the Code of Criminal Procedure before this Court and obtained the Rule and bail. We could not understand how the application of a fugitive was entertained; even before swearing the affidavit no permission was taken from the learned Judges of the concerned Bench. In such situation we can make only comment that the petitioner no doubt a fortunate person, who not only managed to obtain the order of pardon, remitting his sentence, but also succeeded to obtain Rule and bail without surrender, defying the process of Court.

39. Having considered the above settled proposition of law with regard to a fugitive,

527

we are of the view that in passing the order dated 27.08.1997 refusing to recall the order dated 18.08.1997 the learned Assistant Sessions Judge did not commit any error or illegality. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 of the Code of Criminal Procedure he was fugitive from justice and as such we are unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant sessions Judge, Cox’s Bazar.

40. It is well settled that the Court can not direct the President how he is to exercise the power under Article 49 of the Constitution.

Similarly, the Court also can not direct the Government how they exercise the power under Section 401 of the Code of Criminal Procedure. But the action of the President or the Government, as the case may be, must be based on some rational, reasonable, fair and relevant principle which is non discriminatory and it must not be guided by any extraneous or irrelevant considerations. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power.

41. On perusal of the application filed by the wife of the petitioner as it has quoted in the supplementary affidavit it appears that she prayed pardon mainly on the ground that her husband (the petitioner) and his two political well wishers namely Mir Khashim Ali and Darbesh Ali were victimized for political reasons and their political opponent implicated them in the false Case.

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

42. The last paragraph application is as under;

of

the

said

“Hja¡hÙÛ¡u l¡S−~e¢aL AeÉ¡u osk−¿»l A−qa¥L ¢nL¡l Ad£−el ü¡j£ p¡lJu¡l L¡j¡m J avc¤C l¡S®~e¢aL J öi¡e¤dÉu J öi¡L¡wM£ Se¡h j£l L¡−nj J cl−hn Bm£ ®jð¡−ll ¢hl¦−Ü B¢ea ¢jbÉ¡ A¢i−k¡−Nl c¡u qC−a Eš² hÉ¢š²NZ−L Bc¡ma LaѪL fËcš cä j¡SÑe¡ f§hÑL nq£c ¢Su¡l BL¡wM£a BcnÑ J E−Ÿ®nÉ ®cn−eœ£ ®hNj M¡−mc¡ ¢Su¡l ®ea«−aÄ h¡Ù¹h¡uepq c¤C jle fbk¡œ£ pò¡¿¹ f¢lh¡l−L lr¡ Ll¡l f−r fË−u¡Se£u hÉhÙÛ¡ NËq−el ¢e¢jš Ad£¢e Bfe¡l pq©cu Ll¦e¡ fË¡bÑ£z ” 43. On perusal of the record of Criminal Appeal No.611 of 1989 it appears to us that the occurrence took place with regard to a land dispute.

44. It was the prosecution Case that on the date and time of occurrence while Badiur Rahman, the informant, along with his brother Lokman Hakim, Tajur Muluk (the deceased) along with other relations were cultivating their lands in plot No.735,736 and 776 measuring 2.83 acres accused Sarwar Kamal along with 20(twenty) others armed with various deadly weapons like ‘longa’, ‘dao’, ‘lathi’, ‘iron rod’ and ‘khanta’ etc. attacked them with a view of dispossessing them from the said land; eventually, at the order of the convict Sarwar Kamal Convict Mir Kashem Ali hit, with a dao, on the head of the victim Tajur Muluk and there after convict Darbesh Ali also gave some more blows on him and victim Tajur Muluk became senseless with bleeding injuries. The victim Tajur Muluk was taken to the Dulhajare Hospital for treatment where he ultimately succumed to his injuries after 3(three) days.

45. On careful examination of the judgment of the High Court Division as well as the trial Court it appears that the defence never put

I LNJ (2012)

any suggestion to the prosecution witnesses that the present petitioner had been implicated in the case for political victimization by his opponent political group.

46. We have already observed that we have been deprived to know what materials were placed before the President or the Government for its/their consideration to give pardon to the petitioner; but, from the application of the wife of the petitioner it is evident that the petitioner was convicted for political victimization and no relevant documents were annexed or submitted with the said application.

47. We do not find any nexus between the statements made in the application for pardon and the prosecution story, material evidence on record and the judgment of the trial Court.

On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

48. The learned Advocate of the petitioner as well as Deputy Attorney General failed to satisfy us by showing any important piece of document what materials were placed or posted to the President or the Government for its consideration, other than an application for pardon of the wife of the petitioner.

49. In this connection we are of the view that when a convict seeks pardon from the President or the Government he must supply the following materials with the application for pardon; namelyi)

the First Information Report and Police Report;

ii) the evidence; iii) judgment of the trial Court and appellate Court, if any;

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

iv) information whether during trial or appeal the convict was on bail or in custody or on absconsion; v) how long the convict is in custody after conviction and what actual period of sentence he has served; vi) whether the convict is an accused or convicted in any other Case or Cases.

50. In addition to the above materials the authority concerned has to collect a report from Jail authority about the conduct and behavior, when the convict was in jail.

51. It is the proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations can not for a moment be doubted.

52. It the instant Case if, the President and the Government gave pardon to the petitioner only considering the statement made in the application for pardon, filed by his wife, without taking into consideration of other relevant materials, certainly the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure has vitiated the order of pardon as the said order is a mechanical order and the product of favoritism, extraneous and malafide factors.

53. The petitioner also failed to show us that after disposal of the Criminal Appeal he had intimated about the judgment of the appellate Court to the President or the Government as well as the order of the High Court Division directing him to surrender before the trial Court to serve out his remaining sentence.

54. If, the said facts and materials were placed before the President and Government

529

the decision of the President or the Government would have been otherwise.

Because, it is presumed that the President and the concerned authorities of the Government are well conversant with the law that if a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure certainly be arbitrary, malafide, unreasonable, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. If the President or the Government given such indulgence to a fugitive, ignoring and avoiding the direction of the Court and allow the fugitive to approach him/them straight and give him pardon exercising extraordinary power, a day will come when the Criminal administration of justice certainly be collapsed. In view of the principle of rule of law the Court can not approve such exercise of power, in favour of a fugitive, which is absolutely malafide, arbitrary and unreasonable. Fairness, reasonableness and bonafide are the essence of the rule of law.

55. Further, the decisions of the Appellate Division are institutional decision and the decision is binding as a law. When the Appellate Division categorically and consistently held that a fugitive is not entitled to seek any kind of redress as against his grievance, if any, then the pardon given to a fugitive is absolutely disregard to the said law and the Supreme Court. It is desirable that all concerned including the President and the Government should respect the law declared by the Supreme Court and the Government functionaries are obliged to act in aid of the Supreme Court in view of the provisions of Article 112 of the constitution.

530

Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

56. Having considered the facts and circumstances of the present Case and the proposition of law we are of the view that the order dated 12.04.1993 remitting the sentence of the petition in exercising power under Article 49 of the constitution and section 401(1) of the Code f Criminal Procedure has vitiated on the following reasons: i)

the petitioner was a fugitive from law when the order of pardon was made;

ii) the petitioner in procuring the order of pardon concealed the material facts; particularly, the pendency of the Criminal Appeal No.611 of 1989 before this High Court Division and the judgment of the High Court Division passed in the said appeal maintaining the order of conviction and directing him to surrender to the Court below to serve out the remaining sentence. iii) the petitioner without surrendering to the process of the Court, as per direction of the High Court Division succeeded to procure the order of pardon; iv) the alleged order is a mechanical one and product of party favouritism, extraneous and malafide factors and also not fair, reasonable and rational; which is against the sprit of the rule of law; v) the conduct of the petitioner does not show that he with clean hands

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moved before the President and the Government; vi) it is not clear from the order that whether the President at all exercised the power conferred upon him under Article 49 of the Constitution, as in the said order it has been mentioned that the Government has taken the decision to remit the sentence of the petitioner and for this ambiguity and anomaly it reflects non application of mind of the concerned authorities of the Government.

57. Thus, we are not inclined to direct the First Court of Assistant Sessions Judge, Cox’s Bazar to give effect the order of Pardon dated 12.04.1993 remitting the sentence of the petitioner as per the terms of the first portion of the Rule.

58. On the other hand the trial court rightly issued the warrant of arrest as well as the conviction warrant on 30.06.1997 when the Judgment and order of the High Court Division passed in Criminal Appeal No. 611 of 1989 was brought to the notice of it and subsequently on 31.08.1997 rightly refused to interfere with his earlier order on the ground that the petitioner was a fugitive. In passing the order on 30.06.1997, the learned Assistant Sessions Judge before issuing the warrant of arrest held that; “AaHh, a¡q¡l Ae¤L¥−m fËcš S¡¢je h¡¢am Ll¡ qCmz” This finding of the learned Assistant Sessions Judge is irrelevant and uncalled for. Because, after the disposal of the appeal in the High Court Division, the bail

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Sarwar Kamal Vs. The State, (M. Enayetur Rahim, J.)

given to him ipso facto stood cancelled. When there was no bail, question of cancellation of bail does not arise at all. Apart from the above observation, the orders dated 30.06.1997 and 31.08.1997 respectively are based on sound principle of law and thus, we are not inclined to interfere or to quash the said orders. The learned Assistant Sessions Judge passed the said orders within its jurisdiction. Moreso, when the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive.

Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather it was an attempt of the petitioner to mislead the Court. Moreso, the petitioner was not advised properly.

59. Further, in exercising power under Section 561A of the Code of Criminal Procedure we have no scope to direct the authority concerned to give effect of the alleged order of pardon, since it is an executive order, not an order passed in a pending proceeding.

60. In view of the above, we are inclined to discharge the Rule.

61. Accordingly, the Rule is discharged.

62. The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court.

531

63. However, the petitioner is at liberty to file fresh application for pardon, complying the observations made in this judgment, if so advised, and the President or the Government may reconsider the prayer of pardon of the petitioner in the light of the relevant materials in accordance with constitution and law. This judgment will not be a bar for such reconsideration.

64. It appears from the order sheet annexed by the petitioner in the supplementary affidavit, annexure-C, that the trial Court sent the record to the High Court on 03.07.1989 by its order No.35. After disposal of the appeal the record was sent to the trial Court on 19.12.1992 but it appears from the said order sheet that the order of the High Court was not brought to the notice of the concerned judge and the record was sent to the record room behind the back of the learned judge.

65. It is absolutely misconduct on the part of the concerned officials who did not bring notice of the judgment of the High Court Division to the concerned trial Judge.

66. In view of the above, we direct the learned Assistant Sessions Judge, 1st Court, Cox’s Bazar to make an inquiry why after disposal of the appeal when the lower Court record was sent to the said Court with a copy of the judgment and order of the Criminal Appeal same was not placed before the presiding Judge and he is also directed to take departmental action against the concerned person/persons who is/are liable for such misconduct.

67. Considering the facts and circumstances of the instant case our conscience pricks to say few words to express our anxiety.

532

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Rajuk Karmachari Bahumukhi Samabaya SamityVs. and others M/S Al-Razib Traders Sarwar Kamal The State,Vs. (M. Enayetur Rahim, J.) (A.F.M. Ali Asgar, J.

68. Sub-section (1) of section 401 of the Code of Criminal Procedure has empowered the Government to suspend or remit sentence, either whole or party of the punishment to which a convict has been sentenced; on the other hand sub-section (3) of the said section has empowered the Government to cancel the suspension or remission of sentence and to take the concerned person into custody, if at large, to undergo the unexpired portion of sentence; sub-section (2) of the section makes a provision that the Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state is opinion as to whether the application should be granted or refused.

69. Having regard to the fact that to exercise the above power by the Government there is no Rule or standard guideline. Thus, we are of the view that for fair, proper and boanafide exercise of the above power Government may frame Rule and guideline or even amend the Code, as has been done in one of our neighbouring countries. Possibly, this is the high time for the Government to think over the matter to avoid controversy, criticism and misuse of power.

Let a copy of this judgment and order be sent to the trial court as well as the Secretary to the President, Secretary Ministry of Home Affairs and Secretary Ministry of Law Justice and Parliamentary Affairs for their appraisal and future guidance.

Ed.

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. A. F. M. Ali Asgar, J. Judgment 03.05.2012

} } }

Rajuk Karmachari Bahumukhi Samabaya Samity and another ‌.Petitioners

}

Vs. M/S. Traders

Al-Razib

‌Opposite Party Code of Civil Procedure (V of 1908) Section 115 (1) Order XXXIX, rules 1 and 2.

Arbitration Act (I of 2001) Sections 2 (b), 7 (A) Kha and Ummo, 12 and 48

In an Arbitration Miscellaneous Case filed under section 12 of the Arbitration Act, 2001, the opposite party herein filed an application for granting injunction restraining the petitioners from making any construction over the suit property which was allowed by the impugned judgment and order.

It is contended on behalf of the opposite party that no civil revision or appeal shall lie against an order passed by the learned District Judge under section 7 (A) of the Arbitration Act. In view of the cited decision it appears that as a District Judge while he is acting in pursuance of the statute empowering him by section 12 of the Arbitration Act and section 7(A) of the said Act as well, he is performing duties as a Judge of the civil jurisdiction and he is not a person designate but a Court subordinate to the High Court Division for which present civil revisional application is maintainable. The learned District Judge very rightly after evaluating the

Civil Revision No. 2603 of 2011.

548

Md. Shahjahan Mia Vs. Government of Bangladesh and others, (Farah Mahbub, J.)

TK. 1.39,272.24/. only, as payable to him for the period from 03.07.1999 to 01.08.2004 along with interest at the bank rate up to the date of payment.

2. Facts, in brief, are that the petitioner had been serving in the Birol DegreeCollege ( i n short, the College) as an Assistant Professor o f t h e Department of physics for long about 32 years with sincerely and efficiency since 24.07.21975. While in service in the College the petitioner was temporarily suspended by (he Governing Body of the College' on 01.07.1999 at the instance of some local vested quarter out of sheer conspiracy.

Ultimately, he was dismissed from service on 0 8 . 1 1 . 1 9 9 9 under rule 17(Ga) of the NonGovernment Institution Administration and Management Rules. The petitioner was, therefore, constrained to institute Other Class Suit no.8O of 1999 before the court of Subordinate Judge, (now, the Joint District Judge), Dinajpur who subsequently passed an order of temporary injunction restraining Governing Body of the College from giving effeet to the order of dismissal and to allow him to serve till disposal of the suit. .Subsequently, the Governing Body of the College by adopting a resolution dated 17.07.2004 had withdrawn the order of suspension dated 01.07.1999 against the petitioner. Consequently, he also withdrawn the said suit by way of mutual settlement. pursuant to t h e decision so adopted by the Governing Body of the College in its meeting, dated 17.07.2004 and also in consideration of the withdrawal of Other (class Suit No. 80 of 1999 by the petitioner on 27.07.2004, the

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College authority by its letter hearing Memo no. 72(1)/04 dated 31.07.2004 reinstated the petitioner in service asking him to join within 7 (seven) days from the date of receipt of the said order. The Petitioner accordingly joined in his respective post as Assistant Professor, (Physics) in the College on 01.O8.2004 which was duly accepted by the respondent no.7 on the same day.

3. It has been contended that the petitioner as an Assistant Professor of the Department of Physics of the College was entitled to get half of the balance amount of the government portion of salary and accordingly an amount of Tk.l ,89,272.24 only was payable to him on his reinstatement in .service, It has been asserted that though the said amount was withdrawn by respondent no.7 through bill but instead of paying to him the said amount was kept in the College account bearing A/C No.544 at Rupali Bank, Birol Branch, and that the respondent no.7 did not yet pay his arrear dues despite repeated requests so made to that effect. The anomaly was duly detected during, the course of audit by respondent no.4. Pursuant thereto the respondent no.3 vide Memo no. Sha;(Paridarshan) -5/07/32 dated 2 5.02.2007 recommended for taking legal action against the respondent No. 7 including the college authority for withdrawing the amount of Tk. 1 ,89,272.24 which was payable to the petitioner out of the government portion of salary. The relevant portion is quoted below:-

“Rbve †gvt kvnRvnvb wgTv, mn Ava¨vcK (c`v_©) Gi wei“‡× Akvjxb I Aïf AvPi‡bi Rb¨ K‡qK Rb QvÎx Awffe‡Ki Awf‡hv‡Mi

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Md. Shahjahan Mia Vs. Government of Bangladesh and others, (Farah Mahbub, J.)

†cÖw¶‡Z 3/7/99 Zvwi‡L mvgwqK eiLv¯— Kiv nq | Rbve †gvt kvnRvnvb wgTv GZ`wel‡q 80/99 bs gvgjv `v‡qi Kwiqv‡Qb| gvgjv cÖZ¨nvi Ges Df‡qi AvjPbvi †cÖw¶‡Z mvgwqK eiLv‡¯—i Av‡`k cÖZ¨vnvi Kiv nq Ges wZwb 1/8/04 Zvwi‡L cbyivq Kv‡R †hvM`vb K‡ib | mvgwqK eiLv¯— Kvjxb 3/7/99 nB‡Z 31.07.2004 ch©š— wewa †gvZv‡eK wZwb miKvix †eZ‡bi A‡a©K cÖvc¨ wQ‡jb| wKš— Zvnvi c~Y© †eZb wej Kwiqv mgy`q (1,89,272/24) UvKv D‡Ëvjb Kiv nq| D³ mg‡q Zvnvi c~Y© †eZb D‡Ëvj‡bi Rb¨ cÖwZôvb cÖavb `vqx| GB wel‡q AvBbvbyM e¨e¯’v MÖn‡Yi Rb¨ h_vh_ KZ©…c‡¶i `„wó AvKl©Y Kiv nBj| “ 4. The petitioner, thereafter, sent a legal notice dated 26.09.2007 (Annexure-F) to the respondent nos. 6 and 7 requesting them to pay his arrear dues of Tk. 1,89,272.24 only along with interest at the bank-rate up to the date of payment thereof within 15(fifteen) days from the date of receipt of the notice.

On the receipt thereof the respondent nos. 6 and 7 convened a meeting of the Governing Body of the college to be held on 05.12.2006 by issuance of notice dated 06.11.2006.

Accordingly, in the meeting it was resolved that legal opinion would be sought for from the Government Pleader as to whether the period of suspension of the petitioner could, at all, be adjudged as working days or not.

The Government Pleader vide memo no.

(G.P. /Din(2) 1/2007 dated 29.01.2007 gave his legal opinion to the effect that the Governing Body of [he College having had withdrawn the suspension and dismissal order and had reinstated the petitioner in his post as Assistant Professor (Physics), the period of suspension of the petitioner would be deemed to he his working days and he was, therefore, entitled under the rules to get his due salary and allowances and that it might he

549

paid to him. The relevant portion is quoted below:“Rbve †gvt kvnRvnvb wgTv eiLv‡¯—i Av‡`k K‡j‡Ri Mfwb©s ewW cÖZ¨vnvi K‡i wb‡q Zvu‡K K‡j‡R Zvui wbR c‡` cybt‡hvM`v‡bi I cybe©nv‡ji AbygwZ †`Iqvq Zvui `iLv¯— Ae¯—vq _vKvKvjxb mgq Kg©Kvj wnmv‡e MY¨ n‡e Ges Dnv cÖ`vb Kiv †h‡Z cv‡I” 5.

But t i l l date no action has been taken nor any money has been paid to the petitioner Hence, the application.

6. Mr. Fariduddin Ahmed, the learned Advocate appearing for the petitioner submits that despite legal notice (Annexure-F) sent by the petitioner upon the respondent nos. 6 and 7 to pay his entire arrear dues of TK. 1,89,272.24 only with interest and the legal opinion of the Government Pleader (AnnexureH-l), given to that effect, the respondents have not yet paid the same. He further submits that respondent nOS. 6 and 7 have been trying to frustrate the process of payment of his said dues for the period from 03.07. 1997 to 01.08.2004 along with interest at the bank rate upto the date of payment thereof and thereby sought to render the order dated 25.022007 (AnnexureE) nugatory with malafide intention.

7. Conversely, Mr. A . H . M Mushfiqnr Rahman, the learned Advocate appearing on behalf of the respondent No. 7 by filing affidvit-in-opposition submits that the said respondent on receipt of the memo dated 22.10.2007 issued by the Assistant Secretary, Ministry of education had duly complied with the direction by depositing the said amount of money in favour ot the government in local treasury (Sonali Bank Ltd.) dated O8.

11. 2007 (Annexure-4(a) and that it was duly communicated to the respondent no.2 vide memo dated 09.01.200S (Annexure-5) stating

550

Md. Shahjahan Mia Vs. Government of Bangladesh and others, (Farah Mahbub, J.)

Df‡qi AvjPbvi †cÖw¶‡Z mvgwqK eiLv‡¯—i Av‡`k cÖZ¨vnvi Kiv nq Ges wZwb 1/8/04 Zvwi‡L cbyivq Kv‡R †hvM`vb K‡ib | mvgwqK eiLv¯— Kvjxb 3/7/99 nB‡Z 31.07.2004 ch©š— wewa †gvZv‡eK wZwb miKvix †eZ‡bi A‡a©K cÖvc¨ wQ‡jb| wKš— Zvnvi c~Y© †eZb wej Kwiqv mgy`q (1,89,272/24) UvKv D‡Ëvjb Kiv nq| D³ mg‡q Zvnvi c~Y© †eZb D‡Ëvj‡bi Rb¨ cÖwZôvb cÖavb `vqx| GB wel‡q AvBbvbyM e¨e¯’v MÖn‡Yi Rb¨ h_vh_ KZ©…c‡¶i `„wó AvKl©Y Kiv nBj|

inter aliia,“cÖwZôvb cÖav‡bi Reve ch©v‡jvPbvq †`Lv hvq mvgwqK eiLv¯— Kvjxb mnt Aa¨vcK (c`v_©) Rbve †gvt kvnRvnvb wgTv, Ava¨vcK wei“‡× Akvjxb I Aïf AvPi‡bi Rb¨ K‡qK Rb QvÎx Awffe‡Ki Awf‡hv‡Mi †cÖw¶‡Z 3/7/99 Zvwi‡L mvgwqK eiLv¯— Kiv nq | D³ eiLv¯— Av‡`‡ki wei“‡× wZwb gvgjv K‡ib| eiLv¯— Kvjxb mg‡q c~Y© †eZb D‡Ëvjb Kiv n‡jI Zvu‡K 50% UvKv cÖ`vb Kiv nq cieZ©x‡Z Rbve †gvt kvnRvnvb wgqv gvgjv cÖZ¨vnvi Kivq Ges K‡jR KZ©…c‡¶i wm×vš— Abyhvqx mKj Kvh©µg dqmvjv nIqvq wZwb Aewkó 1,89,272/24 UvKv 8/10/07 Zvwi‡L miKvix †KvlvMv‡i Pvjv‡bi gva¨‡g Rgv cÖ`vb K‡i‡Qb weavq AvcwË †_‡K Ae¨vnwZ †`qv nj|” 8. Admittedly, bringing some allegations the petitioner was suspended temporality from his respective post on 11.07.1999 Challenging which he instituted Other Class Suit no. 80 of 1999. Subsequently, the Governing Body took decision to withdraw the. suspension order.

Consequently, the suspension order was withdrawn and accordingly the petitioner also withdrawn the said suit and joined in the respective post. During the suspension period the petitioner received 50% of his subsistence allowance. The balance 50% amounting to Tk. 1,89,272.24 was kept in the account of the college authority without any legal basis. The said act of' the College authority was detected during the course of audit dated 26.12.2006 ( Annexure-E), wherein it was opined-

“Rbve †gvt kvnRvnvb wgTv, mnt Ava¨vcK (c`v_©) Gi wei“‡× Akvjxb I Aïf AvPi‡bi Rb¨ K‡qK Rb QvÎx Awffe‡Ki Awf‡hv‡Mi †cÖw¶‡Z 3/7/99 Zvwi‡L mvgwqK eiLv¯— Kiv nq | Rbve †gvt kvnRvnvb wgTv GZ`wel‡q 80/99 bs gvgjv `v‡qi Kwiqv‡Qb| gvgjv cÖZ¨nvi Ges

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9. In view of the said position the College authority sought of the Government pleader. The Goverment Pleader in his legal opinion also opined to return the balance 50% of the MPO of the petitioner since the suspension order had been withdrawn by the college authority and the authority itself kept the said amount in its account, though not lawfully. However, the said amount was subsequently deposited in fovour of the respondent-government by treasury challan with Sonah IJank Ltd. dated O8.11.2007(Annexure-4-A).

10. In view of the above the petitioner is entitled to receive the balance amount which was unduly kepi in the College account and are now lying in the Government Treasury. Accordingly substance in the present Rule.

11. In the result, the Rule is made Absolute. The respondents are hereby directed to lake, necessary steps to facilitate towards payment of TK. 1,89,272.24 only in favour of the petitioner which he is lawfully entitled to get in accordance with law within a period of 30 (thirty) days from the date of receipt of the copy of this judgment and order.

There will be no order us to costs Ed.

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Sruesh Chandra Barman and others Vs. Raj Mohan Barman and others (Sharif Uddin Chaklader, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Sharif Uddin Chaklader, J. Judgment 16.05.2011

} Suresh Chandra } Barman and others ….Petitioners } Vs. } Raj Mohan Barman and } others. } …Opposite Parties

Code of civil Procedure (V of 1908) Section 107 The findings of the appellate court are not proper findings of a judgment of reversal. The appeal is sent on remand to the court of appeal below to arrive at proper findings as per section 107 of the Code. The appellate court should give a chance to both the parties, if they want to adduce additional evidence in support of their respective cases. …(11 and 12).

Mr. Tobarak Hossain Advocate with Mr. Mohammad Ali Azam Advacate --For the petitioner.

Mr. H.R. Nandi Advocate Mrs. Lily Rani Saha Advocate … For opposite party No. 2 Judgment Sharif Uddin Chaklader, J. This rule by the plaintiffs directed against judgment and decree dated 15.3.2006 passed by the learned Additional District Judge, 3rd Court, Comilla allowing Title Appeal No.105 of 1998 reversing those dated 26.2.1998 passed by the learned Subordinate Judge, now Joint District Judge, 2nd Court, Comilla in Title Suit No.51 of 1997.

Civil Revision No. 1975 of 2006.

539

2. Plaintiffs filed the suit for partition of the suit land with prayer for saham to the extent of 3.97 ½ acres of land.

3. The case of the plaintiffs is that Panchananda was the original owner of 1st and 2nd schedule land of the plaint. Panchananda died leaving behind two sons, namely, Ram Narayan Mal and Ramlochan Mal before Chakala Rosanabad survey operation and during Rosanabad survey operation the said sons used to live together in a joint family and khatian No.112 in respect of 1st schedule land recorded the name of Ram Narayan Mal and khatian No.14 in respect of 2nd schedule land and suit schedule Nos.3 and 4 have been recorded in the name of Ram Lochan Mal. The suit schedule lands were not recorded in the khatian as per their share. Ram Narayan Mal died leaving one son, Aboy Charan and one daughter, Swarasati Debi Urshashi. Urshashi died leaving 3 sons, Guru Charan, Hari Charan and defendant No.30 as heirs. Abhoy Charan Mal got 8 annas share in the suit land in ejmali. Karunamaye, daughter of, Abhoy Charan, after marriage, used to live with her father. Abhoy Charan died leaving one daughter, Karunamoye and 2 grand sons, Rajani Kanta Mal and Kuluk Kanta Mal who became owner in the left out property of their grand father, Abhoy Charan and their names have been recorded in R.S. Khatian. The names of Rajani Kanta Mal and Kuluk Chandra Mal have not been recorded in revisional khatian but name of Kuluk Chandra has been wrongly recorded in revisional khatian. Rajani Kanta died leaving son plaintiff No.1 and Kuluk Chandra Mal died leaving son, plaintiff No.2. So, plaintiffs became owner and possessors in the left out property of Rajanai Kanta and Kuluk Chandra Mal and enjoyed in ejmali. The further case of the plaintiffs is that, during Chakala Roshanabad survey operation, Ram Lochan wrongly recroded 8 annas share

540

Sruesh Chandra Barman and others Vs. Raj Mohan Barman and others (Sharif Uddin Chaklader, J.)

i.e. 3rd schedule land of his two brothers in the name of his son, Orehan on taking advantage of oldness of Ram Narayan, the heirs of Karunamaye along with Bashi Ram and others, who are cousin brother of Kuranamay Mal owning 8 annas share but in ka schedule land, Karunamoye was owner of ½ annas share.

Kuluk Chandra Mal purchased 11 decimals of land from plot No.65 of 2nd schedule by deed dated 4.9.1981 and plaintiff No.2 purchased 8 decimals of land from plot No.65 of 2nd schedule from defendant No.2 by sale deed dated 1.9.1981. Plaintiff No.2 purchased 10 decimals of land from plot No.69/70 of 2nd schedule from Rafiqul Islam by sale deed dated 23.6.1992. Paranchandra Mal died leaving Bashee Ramchandra Mal, Goura Chandra Mal as residuary with another son, Ramlochan Mal and brother Ramnarayan and Rajchandra Mal. Gourachandra Mal died leaving one son.

Bashee Rammal died leaving Rameshawr Mal, Jugeshawr Mal and Ramcharan Mal as residuary. Raseshwar died leaving Khetra Mohan Mal and defendant No.7, Usha.

Jugeshwar Mal died leaving defendant Nos.1-3 as 3 sons. Ramcharan died leaving no son.

Khetra Mohan Mal died leaving two sons, defendant Nos.4 and 5 and wife, defendant No.6 and they became owner of the property left by Rameshawr Mal. Plaintiffs have been owning and possessing the suit land. The defendants possessing more share than their actual share for which plaintiffs demanded partition but defendants refused, lastly on 5.8.1993, hence the suit.

4. Defendant Nos.1, 2 and 3 contested the suit by filing written statement. It is the case of the defendants that Panchananda was in possession of and owner of the land of 1st and 2nd schedule of plaint and he has no title in 2nd and 3rd schedule of the plaint. Panchannanda died

I LNJ (2012)

leaving 2 sons, namely, Ram Narayan and Ram Lochan as his heirs who became owner and in possession of the land of 1st and 2nd schedule of the plaint. Ram Narayan and Ram Lochan used to live together in a joint family and Ram Narayan Mal being 'korta' of the family, and Chakla Roshanabad Khatian No.112 and 114 were prepared in the name of Ram Narayan in respect of 1st and 2nd schedule land but both of them possessed equally. Abhoy Charan and Swarasati were not sons of Ram Narayan who had no son. Ram Narayan died leaving behind brother, Ram Lochan as heir and Ram Lochan got land of 1st and 2nd schedule by inheritance from his father and brother. 3rd schedule land of khatian No.C.R.155 was prepared in the name of Ramsum Dardas, Bashee Rammal, Charan, Gongaram and Kashiram, Nandaramal and son of Ram Lochan as owner and possessor of 4th schedule of R.S. khatian No.2 which was prepared and published in the name of Pancharanda and his residuary had no title in the land of 3rd and 4th schedule. Haracharan Mal died unmarried during the life time of his father. Thereafter, Ram Lochan became owner and possessor in 8 annas share of 1st, 2nd and 4th schedule land and said Ram Lochan died leaving behind 3 sons, Bashuram Mal, Ramchandra Mal and Gouchandra Mal who inherited the property of their father, they purchased 8 annas land from 4th schedule from Nandarampal in the name of Bashirampal and possessed. Even they purchased part of the pond and bank of the pond in plot No.10-11 to 3rd schedule and became owner and possessor therein. In this way, Bashiram, Razchandra and Gouree Chandra became owner and possessor in the land of 1st to 4th schedule by purchase and inheritance and they sold aforesaid land of

I LNJ (2012)

Sruesh Chandra Barman and others Vs. Raj Mohan Barman and others (Sharif Uddin Chaklader, J.)

schedule 1st to 4th to Rameshawar and Jaggeshwar. Thereafter, Rameshawar and Jaggeshwar purchased 1st to 4th schedule land by deed dated 23rd Bhadra, 1332 B.S. and S.A. khatian prepared in their names. Ramcharan died leaving behind wife, Kanjabasheedas and she became owner and was in possession of the property left by Ramchandra Mal. Krishna Chandra Barman created false deed in respect of 56 decimals of land of plot No.72 and 11 from Kanjabasheedas. Kanjabasheedas did not execute such deed and she had no need/necessity to sell aforesaid 56 decimals of land to pay her husband’s debt and own debt of Tk.3,000.00. She sold 72 decimal of land to Krishna Mohan for paying her husband’s and own loan. Plaintiff Nos.1-2 purchased 5 decimals of land from Krishnamohan’s purchased land by sale deed dated 16.9.1980. Plaintiff No.2 purchased 8 decimals of land from defendant No.2 by deed dated 1.9.1981. Before the plaintiff, Gurucharan, Haricharan Rajmohan, Ummasee Swarasatee and Avoy Charan had no ownership and possession because Ram Narayan had no residuary named Karonamayee. Kuluk and Rajanee had fish business and were movable men, allowed Basheeram lived in Bashiram’s land and died leaving behind plaintiff Nos.1 and 2 in the dwelling hut. Plaintiff Nos.1 and 2 had no title in the suit land. They created a false gift deed No.90 dated 12.1.1924 and forged the name in S.A. khatian to grab the property.

5. Trial Court framed 3 issues, whether the suit is maintainable in its present form, whether the plaintiffs are entitled to get decree as prayed for and whether plaintiffs entitled to get other reliefs.

541

6. Plaintiff examined 3 P.Ws. and defendants examined 3 D.Ws. and produced some documents. Learned Subordinate Judge decreed the suit. Defendant Nos.1 – 3 preferred Title Appeal No.105 of 1998 which was heard, on transfer by the learned Additional District Judge, 3rd Court, Comilla who allowed the appeal, reversed the findings of the trial Court and this rule is from that judgment.

7. Mr. Tobarak Hossain, learned Advocate, appearing for the plaintiff-petitioners, submits that, the judgment and decree passed by the Court of appeal below is not proper judgment of reversal. The learned judge of the appellate court did not advert to the findings arrived at by the learned Subordinate Judge on consideration of the materials on record.

Learned Advocate further submits that, trial Court on consideration of the evidence on record found plaintiffs' title and possession in 3.97 ½ acres of land but this finding of the learned Subordinate judge was neither address to nor adverted by the learned Additional District Judge while allowing the appeal.

Learned Advocate further submits that learned Subordinate Judge after consideration of the materials on record in respect of 2nd schedule land made findings to the effect that: 2u af¢R−ml i¨¢j L¢lu¡−R, I 27 naL Hl qC−a h¡c k¡C−h .............. ýL¥¤j cMm Ll¡ qCu¡−R naL h¡c k¡C−h.........."

qC−a 27 naL ýL¥j cMm j−dÉ 13 naL h¡c£N−el Awn 4bÑ af¢R−ml i¨¢j 11 naL a¡q¡ qC−a h¡c£N−el Awn 5

In reversing the judgment of the learned subordinate judge learned Additional District judge did not make any discussion of the evidence on record. Learned Advocate further submits that judgment of the appellate Court

542

Sruesh Chandra Barman and others Vs. Raj Mohan Barman and others (Sharif Uddin Chaklader, J.)

having passed without considering the materials on record, as such, the appeal should be remanded back to the Court of appeal below so that the learned Judge of the Appellate Court could pass the judgment on reference to the evidence on record.

8. Mr. H. R. Nandi along with Mrs. Lily Rani Saha, learned Advocates, appearing for the opposite parties, on the other hand submits that, judgment passed by the Court of appeal below as Final Court of fact should not be disturbed as the judgment passed by the learned judge of Court of appeal below was passed legally on reference to the evidence on record. Learned Advocate further submits that if the appeal be remanded to the Court of appeal below, then, the learned Advocate submits, that a direction should be given to the learned Additional District Judge to consider the case of the parties by taking additional evidence as per section 107 of the Code of Civil Procedure.

9. I am of the view that the judgment of the Appellate Court is not a proper judgment of reversal. Let me find the relevant portion of the judgment. At the out set it may be mentioned that the judgment of the appellate court is not in proper language. Let me quote the relevant portion of the judgment; D−õ¢Ma AhÙÛ¡u ®cL¡ k¡u Bf£m fkÑ¡−u öe¡e£L¡−m ®lpfe−X¾V h¡c£fLo ®j¡V 1.34 HLl i¨¢j ýL¥j cM−ml L¡l−Z Bl¢Sl af¢Rm ®b−L LaÑe L−l Eš² i¨¢j ¢hh¡c£N−el Awn ®b−L h¡c k¡−h h−m a¡−cl 28/2/05 Cw a¡¢l−Ml fÐcš clM¡Ù¹ E−õM L®l−Rz ¢L¿¹ ¤ HC 1.34 HLl i¨¢j ®L¡e ®L¡e ¢hh¡c£l Awj ®b−L h¡c k¡−h ¢Lwh¡ R¡q¡j fСbÑ£ 11/12/13(L)-13(M) fkÑ¿¹ ¢hh¡c£−cl Awn ®b−L h¡c k¡−h ¢L e¡ ¢Lwh¡ a¡−cl Awn Ar¥æ b¡L−h ¢Le¡ Hph ¢ho−u c¡¢MmL«a clM¡−Ù¹ h¡c£ ®lpf−ä¾V fr p¤¢e¢cø i¡−h ¢LR¤C E−õM L−l¢ez

I LNJ (2012)

Afl¢c−L ¢hh¡c£ Bf£mÉ¡¾V fLo 22/11/05 Cw a¡¢l−L clM¡Ù¹ ¢c−u Bl¢Sl af¢Rm i¥š² phÑ−j¡V 3.17 HLl i¥¢j ýL¥j cMm q−u−R h−m f¢lú¡l i¡−h E−õM L−l−Rz h¡c£fr ®j¡V 1.34 HLl i¨¢j ýL¥j cM−ml Lb¡ ü£L¡l Ll−mJ ¢hh¡c£ Bf£mÉ¡¾V f−rl c¡h£ j−a ®j¡V 3.17 HLl ýL¥j cM−ml ¢hou¢V pÇf−LÑ p¤Øfø ®L¡e hš²hÉ ®ce¢ez g−m ®cM¡ kAu HC j¡jm¡l h¾Ve ®k¡NÉ ®j¡V 8.23 HLl i¨¢jl j−dÉ h¡c£fr h−m−R 1.34 HLl i¨¢j ýL¥j cMm q−u−R Bh¡l ¢hh¡c£fLo h−m−R ýL¥j cMmL«a i¨¢jl f¢lj¡e 3.17 HLlz ¢h‘ ¢ejÀ Bc¡ma ýL¥j cMmL«a i¨¢j pÇf−LÑ Eiu f−rl E−õ¢Ma h¡c£l Efl cªnÉa ®L¡e B−m¡Qe¡ L−le¢ez L¡lZ ¢hQ¡−ll pjk h¡c£fr ®kje ®j¡V 1.34 HLl i¨¢j ýL¥j cMmL«a h−m Bc¡m−a abÉ fÐc¡e L−le¢e ¢WL ®aj¢e ¢hh¡c£ Bf£mÉ¡¾V fr a¡−cl c¡h£ j−a 3.17 HLl ýL¥j cMm qJu¡l ¢hou¢V ¢h‘ ¢ejÀ Bc¡m−a Ebb¡fe L−le¢ez H l¦f f¢l¢ÙÛ¢a−a Øføax ®cM¡ k¡u BlS£l af¢R−ml i¨¢j ®b−L 3.17 HLl e¡ ¢L 1.34 HLl i¨¢j ýL¥j cMm q−u−R a¡ ¢el¦fe e¡ L−l af¢Rm h¢ZÑa i¨¢j h¾V−el ®k fСb¢jL ¢Xœ²£ ¢h‘ ¢ejÀ Bc¡ma fÐc¡e L−l−Re a¡ ®j¡−WC kb¡kbJ p¢WL qu¢ez k¢c h¡c£ ®lpf−ä¾V fr j¤m j¡jm¡u BlS£l af¢Rm i¨š² i¨¢j ®b−L ®N¡ja£ ec£l h¡−dl SeÉ ýL¥j cMmLªa i¨¢jl p¢WL f¢lj¡e h¡c ¢c−u a¡−cl c¡h£L«a fСfÉ Awn c¡h£ Ll−ae Hhw a¡ k¢c p¡rÉ fÐj¡−el j¡dÉ−j fТa¢ùa Ll−a f¡l−ae a¡ q−m HC j¤m h¡−V¡u¡l¡ j¡jm¡¢Vl ¢hQ¡l L¡kÑœ²j p¢WL q−u−R h−m NeÉ Ll¡ ®kaz ¢L¿º a¡l¡ a¡ e¡ L¡lu ü¡i¡¢hL i¡−h ÊS£l ¢f¢R−m h¢ZÑa h¾Ve−k¡NÉ i¨¢jl j−dÉ Nl¢jm ®cM¡ ¢c−u−Rz h¡c£N−el f¤hÑha£j¡l e¡l¡ue j¡−ml e¡j£u 1j af¢R−m h¢ZÑa pÇfª¢š²l 112ew M¢au¡e Hhw 2u af¢R−ml h¢ZÑa pÇf¢šl 14ew M¢au¡−el paÉ¡¢ua eLmfÐc-O(1) (¢X)(1) Bc¡m−a c¡¢Mm Ll−mJ l¡j ®m¡Q−el− e¡j£u 3u J 4bÑ af¢R−ml h¢ZÑa pÇf¢šl kb¡œ²−j 203 J 13ew M¢au¡−el ®L¡e paÉ¡¢ua eLm a¡l¡ Bc¡m−a c¡¢Mm L−l e¡Cz g−m ®cM¡ k¡u h¡c£N−el f§hÑhaÑ£ l¡j e¡l¡ue Hhw l¡j ®m¡Qe BlS£l 1j-4bÑ af¢R−ml i¨¢j−a a¥mÉ¡w−n j¡¢mL b¡L¡l c¡h£¢V h¡c£Ne fÐj¡e Ll−a pjbÑe que¢ez Bl, Hp, M¢au¡−el HL¢V A¢a f¤l¡aeJ NËqe−k¡NÉ M¢au¡e Hl H¢jVÊ−L p¡rÉ fÐj¡e ¢c−u AöÜ J i¥m ¢q−p−h fÐj¡¢ea e¡

I LNJ (2012)

Sruesh Chandra Barman and others Vs. Raj Mohan Barman and others (Sharif Uddin Chaklader, J.)

qJu¡ fkÑ¿¹ HC dl−el M¢au¡e−L BCeax AöÜ J ïj¡aÈL c¡h£ Ll¡l ®L¡e p¤−k¡N ®eCz 10. Here I refer to provision of Order XLI Rule 31 of the Code of Civil Procedure which is as follows: "The judgment of the appellate Court shall be in writing and shall state(a)

the points for determination;

(b)

the decision thereon;

(c )

the reasons for the decision; and,

(d)

where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall, at the time that it is pronounced, be signed and dated by the judge or by the judges concurring therein."

11. On reference to the entire judgment of the Court of appeal below mentioned herein before, I am of the view that the findings of the learned judge are not proper findings of a judgment of reversal. I am of the view that such type of judgment cannot be sustainable in law but on the facts of the given case I am of the view that appeal should be remanded to the Court of appeal below so as to pass a proper judgment on reference to materials on record and on consideration of the provision of section 107 of the Code of Civil Procedure which is as follows: "107. (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power(a)

to determine a case finally;

543

(b)

to remand a case;

(c)

to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) …

…

…"

12. I am of the view that learned Additional District Judge to arrive at a proper findings, as per section 107 of the Code of Civil Procedure, should give a chance to both the parties, plaintiff and defendant, if they wanted to adduce additional evidence in support of their respective cases then, as per provision of law, should allow them to do. I find substance in this rule.

13. In the result, this rule is made absolute.

No costs.

14. The Judgment and decree dated 15.3.2006 passed by the learned Additional District Judge, 3rd Court, Comilla in Title Appeal No. 105 of 1998 is set aside. Title Appeal No. 105 of 1998 is sent back to the learned Additional District Judge, 3rd Court, Comilla to dispose of the appeal in accordance with the observations made in the body of the judgment. Learned Additional District Judge, 3rd Court, Comilla is further directed to dispose of the appeal within 4(four) months from the date of receipt of this order.

15. Send down the lower Court records at once.

Communicate this order at once.

Ed.

I LNJ (2012)

The State Vs. Shahdat (Syed Md. Ziaul Karim, J.)

Evidence Act (I of 1872) Section 8 From the materials on record it appears that soon after the occurrence the condemnedprisoner fled away and remained absconding during trial, and trial was held in absentia. Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence. .....(34) Evidence Act ( of 1872) Section 3 Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same.

Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. ..(37) State Vs. Aynul Huq 9 MLR 393= 9 BLC 529; Gouranga Kumar Saha vs. State 2 BLC (AD) 126; Abdul Mutaleb Howlader vs. State 5 MLR(AD)92= 6 BLC(AD)1; Dipok Kumar Sarkar vs. State reported in 40 DLR(AD) 139; and Sudhir Kumar Das alias Khudi Vs. State 60 DLR-261; PLD 1965 Lah.656; 39 DLR 437; 33 DLR 274; AIR 1998SC107 and 40 DLR 58, ref.

Mr. M.A. Mannan Mohan,D.A.G with Md. Mahbubul Alam, A.A.G Mrs. RahimaKhatun Mr. Md. OsmanGoni --For the State.

Mr. Abdul Bashar, Advocate.

--For the condemned prisoner

559

Judgment Syed Md. Ziaul Karim, J: This Death Reference under Section 374 of the Code of Criminal Procedure (briefly as the Code)has been made by the learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Faridpur (briefly as Tribunal), for confirmation of death sentence of condemned-prisoner. The learned Judge by the Judgment and order of conviction and sentence dated 13-06-2006 in Nari-O-Shishu Case no. 107 of 2005 convicted the condemned prisoner under Section 11(L) of Nari-O-Shishu Nirjatan Daman Ain, 2000(briefly as Ain 2000) and sentenced him to death by hanging.

2. The prosecution case put in a nutshell are that victim Champa aged about 23 years daughter of informant Md. Afzal Molla( P.W.1) was married with accused Md. Sahadat son of late Nazeem Bepari of village Balia before four months. At the bridal ceremony two vories of gold and Tk.10,000/= in cash was were given as dowry. Even, then her accused husband use to demand dowry for Tk.10,000/= more to her. On her failure to bring the same for her greedy husband, she was being tortured for trifling matter. On 13-04-2005 at evening she and her accused husband visited her parents house at village Bhabukdia wherein Tk.10,000/= was demanded to her parents as dowry but due to their poverty they refused to pay the same. Later, at 8:00 p.m. she along with her accused husband left. After an hour her parents came to learn that she was murdered by her accused husband for the cause of her failure to bring dowry for Tk.10,000/= for her greedy husband from them. They rushed to the scene and found her body bore multiple injuries. With these allegations the prosecution was launched by lodging a first information report (briefly as FIR) by her

560

The State Vs. Shahdat (Syed Md. Ziaul Karim, J.)

father Md. Afzal Hossain Molla (P.W.1) as informant against her husband Shahadat and four others which was recorded as Saltha Police Station Case no.05 dated 14-04-2005 corresponding to G.R. no. 31 of 2005.

3. The Police after investigation submitted charge sheet under Section 11(L) of the Ain 2000 accusing accused Sahadat and other accused were let off. The accused Shahadat remained absconding at the inception of the case.

4. Eventually, charge under Section 11(L) of the Ain 2000, was framed against accused Shahadat in his absence. Later he was tried in absentia and defended by State defence lawyer.

5. In course of trial the prosecution in all, examined seven witnesses out of fifteen charge sheeted witnesses.

6. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It is divulged in defence that deceased Champa became senseless after taking tobacco powder (N¤m). Subsequently she died but being influenced by local rivals accused was implicated in this case.

7. After trial in absentia the Tribunal convicted the accused as aforesaid.

8. The learned Deputy Attorney General appearing for the State supports the reference and submits that it is a wife killing case and the prosecution witnesses by corroborative evidence proved that victim Champa died at the custody of her husband. So the accused is under obligation to explain the cause of her death. He lastly submits that the Court below after considering the materials on record rightly convicted the accused which calls for no interference by this Court.

I LNJ (2012)

9. The learned Advocate appearing for the condemned prisoner opposes the reference and submits that the prosecution measurably failed to prove time, place and manner of occurrence.

He adds that the Tribunal convicted the accused in moral view which cannot be sustained in the eye of law.

10. In order to appreciate their submissions we have gone through the record and given our anxious considerations to their submissions.

11. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

12. P.W. 1, Md. Afzal Hossain is the informant and father of deceased Champa. He deposed that his daughter Champa was married with Sahadat. On the first part of Baishak at 7:30 p.m. his daughter and accused came to his home after some time they left despite of his request to stay. The accused later assaulted the victim for the cause of her failure to bring dowry for Tk.10,000/=. On such information he rushed to the scene and found her daughter senseless. He also became senseless. Then the accused took the victim to doctor by van for treatment, as soon as the doctor declared her death, the accused jumped from the van and fled away. He lodged the FIR(I, 1/1).

13. In cross-examination he stated that he did not see the occurrence. He denied the suggestion that his daughter became senseless by taking tobacco powder and deposing falsely.

14. P.W.2 Dr. Md. Noor Hossain deposed that on 14-04-2005 he held autopsy upon the cadaver of deceased Champa identified by CSohrab Hossain and found the following injuries: “Multiple small bruises and abrasion on the front and sides of the neck cÖvß nq Ges wb¤œiæc gZvgZt

I LNJ (2012)

The State Vs. Shahdat (Syed Md. Ziaul Karim, J.)

In my opinion: death was due to respiratory failure resulting from injury to the spinal cord due to blunt forced injury on neck which was antemortem and homicidal in nature.�

15. He proved the post mortem as Exhbt. 2 and his signature on it as Exhbt. 2/1.

16. In cross-examination he stated that he found the aforesaid injuries at neck and he did not find any external injury. He denied the suggestion that he made a perfunctory investigation and submitted a report.

17. P.W. 3 Liakat Ali and P.W. 5 Md. Dulal are the local witnesses. They heard that Champa was murdered by his husband for the cause of dowry for Tk.10,000/=.

18. In cross-examination they denied the suggestion that they were deposing falsely.

19. P.W. 4, Jamir Molla deposed that the victim Champa was his niece, who was murdered by her husband for the cause of her failure to bring dowry for Tk.10,000/=. Her accused husband Sahadat is now absconding and not present on dock.

20. In cross-examination he denied the suggestion that no occurrence took place and was deposing falsely.

21. P.W.6 Babu Sheikh Van driver. He deposed that accused kept the victim Champa in his van and he carried her to local Bazar.

22. In cross-examination he stated that husband of Champa and her brother carried her to doctor at Bazar by his van.

23. P.W.7 S.I. Shah Alam deposed that on 14-04-2005 he was attached with Saltha Police Station. The case was entrusted to him. He visited the place of occurrence, prepared sketch map and index (3,3/1, 4,4/1) He held inquest and prepared report. He recorded the

561

statements of the witnesses under Section 161 of the Code. Thereafter submitted charge sheet accusing accused Sahadat and other accused were let off.

24. In cross-examination he denied the suggestion that without proper investigation he submitted the report.

25. These are all of the evidence on record adduced by the prosecution to prove the charge.

26. It is indisputable that the slain Champa was lynched.

27. In course of trial the prosecution in all examined seven witnesses, of them P.W.1 is the father of victim Champa and informant of this case. PW 2, is a doctor who held autopsy upon the cadaver and PWs.3 and 5 are local witnesses. P.W.4 is uncle of victim who also heard the occurrence. P.W. 6 Van puller. P.W.7 investigated the case and submitted a report.

28. It is a wife killing case. In such case there would be no eye-witness of the occurrence apart-from the inmates of the house, who may refuse to tell the truth. The locals may not come forward to tell the truth. So, the prosecution is therefore, to rely on the circumstantial evidence.

29. P.W.1 father of the victim Champa categorically stated that his daughter use to reside in her conjugal home wherein the accused use to torture her for trifling matter for the cause of dowry. They used to ask her to bring dowry for Tk.10,000/= from her parents.

On the same night his daughter also demanded for Tk.10,000/= to him as dowry for her greedy husband Sahadat. Due to their poverty they refused to pay the same. Later, she along with her husband left. After an hour he heard about the assaulting to victim Champa by her accused husband. Later the victim succumbed to the injuries and her accused husband fled away. He also found multiple marks of injuries at the neck of his slain daughter. His evidence in respect of injuries also corroborated by P.W.2

562

The State Vs. Shahdat (Syed Md. Ziaul Karim, J.)

Dr. Md. Noor Hossain who held autopsy upon the cadaver of Champa. Their evidences were also corroborated by van driver P.W. 6.The evidence of P.W.1 in respect of demanding dowry and murder of victim Champa furnished corroboration by the evidence of P.Ws.3 – 5, so evidence of all the prosecution witnesses in respect of demanding dowry and causing death by the accused Sahadat while she was at the custody of her husband are consistent, uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against the condemner prisoner.

The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.

30. Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the wife was with the custody of her husband, then the accused husband under Section 106 of the Evidence Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death.

31. It is well settled that when it is established that the husband and wife were residing in the same house at the relevant time, the husband is duty bound to explain the circumstances how his wife met her death and in absence of any explanation coming form the husband, irresistible presumption is that it is the husband who is responsible for her death.

In this regard reliance can be placed in the case of State Vs. Aynul Huq 9 MLR 393= 9 BLC 529. This view receives support in the case of Gouranga Kumar Saha vs. State 2 BLC (AD) 126. Abdul Mutaleb Howlader vs. State 5 MLR(AD)92= 6 BLC(AD)1, Dipok Kumar Sarkar vs. State reported in 40 DLR(AD) 139

I LNJ (2012)

and Sudhir Kumar Das alias Khudi Vs. State 60 DLR-261.

32. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration. a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor. b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused. c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer. d) There must be clear and unequivocal proof of the corpus delicit. e) The hypothesis of delinquency should be consistent with all the facts proved.

33. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

34. From the materials on record we find that soon after the occurrence the condemnedprisoner fled away and remained absconding during trial, and trial was held in absentia.

Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence (Vide PLD 1965 Lah. 656). Therefore, anything, which tends to explain his conduct and furnishes a motive other than a guilty conscience, will be relevant under the Evidence Act. Failure to explain reason for absconding after occurrence

I LNJ (2012)

The State Vs. Shahdat (Syed Md. Ziaul Karim, J.)

fovours prosecution (39 DLR 437).

Abscondence of accused is a relevant fact.

Unless accused explain his conduct, abscondence may indicate guilt of accused (33 DLR 274). Where accused absconded immediately after occurrence and remained out of reach of hand of law for more than years without showing any convincing reason for his absence, it would be an important factor going against absconder accused (AIR-1998 SC-107).

Abscondence immediately after incident and till today is a strong incriminating circumstances while can be considered sufficient corroboration of his participation in commission of crime(11 BLT 155).

35. The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).

36. The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.

37. Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same.

563

Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).

38. Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the condemner prisoner are not the correct exposition of law. On the contrary the submissions advanced by the learned Counsel for the State prevails and appears to have a good deal of force.

39. In the light of discussions made above and the preponderant judicial views emerging out of the authorities refers to above we are of the view that the prosecution successfully proved the charge against the condemned prisoner beyond all reasonable doubt. Thus the reference having merit succeeds.

40. In the result:(a) The Death Reference no. 51 of 2006 is accepted. The judgment and order of conviction and sentence dated 13-06-2006 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Faridpur, in Nari-OShishu Case no. 107 of 2005 is hereby maintained. The sentence of death imposed upon condemned prisoner stands confirmed.

The authority concerned shall take appropriate measures to secure the arrest of condemned prisoner, and execute the sentence in terms of judgment passed in Nari-O-Shishu Case no.

107 of 2005 and in accordance with law.

The office is directed to send down the records at once.

Ed.

I LNJ (2012)

M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)

majority, are not only required to act fairly, but are also required to follow the procedure that has been agreed by and between the parties “in conducting the proceedings”.

37. The term “proceeding” has not been defined in the Act. However, Article 32(1) of the Model Law provides that the arbitral proceedings are terminated by the final award.

In my view, the term ‘proceeding’ includes the final deliberations/discussions that takes place between the members of the Tribunal before an Award is made and signed. Therefore, the duty to act fairly, as envisaged by section 23 of the Act, is not merely confined to the arbitration proceeding itself, but extends to the deliberations that is required to take place between the members of the Tribunal before an Award is made.

38. Section 37 of the Act provides that the decision of the Tribunal shall be by a majority of its members. Article 29 of the Model Law contains a similar provision.

39. An Award by the majority connotes an Award where each and every member of the Tribunal actively participates not only in the arbitration proceeding, but also in the deliberation that takes place between the members of the Tribunal before the Award is made and signed. There may very well be an Award by the majority, but that should only be made after there has been a proper and complete deliberation between the members of the Tribunal covering all the issues in dispute between the parties. However, if an Award is made in violation of the aforesaid procedure, it would tantamount to a procedural impropriety and therefore, the resultant Award cannot be termed as an Award by the majority. In my view, this is certainly not the intendment of the parties.

513

40. In any event, whether the Award of the Tribunal is ‘unanimous’ or ‘by a majority’, it is imperative that there must be deliberation /discussion between the members of the Tribunal prior to making and signing the Award. This is not an idle formality, but a legal requirement, as reflected in section 23 of the Act, which enjoins a positive duty upon the Tribunal to act ‘fairly’.

41. Furthermore, the Tribunal is not only expected to act fairly, but it must also act judicially in the discharge of its duty. If it does otherwise, that would be contrary to and violative of the principles of natural justice since judicial acts, by their very nature, are deemed to be amenable to the rules of natural justice.

42. In Dewan Singh v. Champat Singh, reported in AIR 1970 SC 967, the Supreme Court of India observed : “The proceedings before the arbitrators are quasi-judicial proceedings.

They must be conducted in accordance with the principles of natural justice.”

43. In the case of S.L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136, it was held : “Non-observance of natural justice by itself causes prejudice to a party and proof of prejudice to a party and proof of prejudice independent thereof is unnecessary.”

44. In ‘Law and Practice of International Commercial Arbitration’ (Alan Redfern and Martin Hunter, 3rd Ed., pg. 257), it has been observed : “A tribunal should act judicially. The duty to act judicially is a duty which extends to all aspect of the proceedings.”

514

M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)

45. It has further been observed (at page 377) : “Where an arbitral tribunal is composed of more than one arbitrator, it is self-evident that there should be discussion between the arbitrators before the award is drawn up. Some system of law contain mandatory provisions to this effect but, whether this is so or not, the principle that arbitrators must consult before issuing their award is wellrecognised.”

46. The aforesaid principle was endorsed by the International Centre for the Settlement of Investment Disputes (ICSID) in the matter of Klockner Industries and Others v. United Republic of Cameroon, reported in (1986) XI Yearbook of Commercial Arbitration, 161.

47. As has been stated so aptly by Mahmood, J more than a century ago in the case of Nand Ram v. Fakir Chand, reported in ILR 7 (1885) All 523 : “What the parties to a reference to arbitration intended is that the persons to whom the reference is made should meet and discuss together all the matters referred, and that the award should be the result of their united deliberations. This conference and deliberation in the presence of all the arbitrators is the very essence of the arbitration, and the sole reason why the award is made binding.”

48. In the instant case, the parties had agreed to have their dispute settled by a Tribunal comprising of three members. Both the parties also agreed that the Award of the Tribunal shall

I LNJ (2012)

be by a majority. It was therefore implied that the Award should be the outcome of the deliberation between each and every member of the Tribunal, even though at the end, the Award may either be unanimous or by a majority. However, in no circumstances can it be inferred that by agreeing to an Award by the majority, the parties had empowered the Chairman to deliberate on the issues with only one member of the Tribunal to the exclusion of the other member before making and signing the Award.

49. Although section 37(2) of the Act authorizes the Chairman to decided “questions of procedure”, if authorized by the parties or all the members of the Tribunal, it does not confer any authority on the Chairman to make the Award without undertaking a proper and detailed deliberation with the other members of the Tribunal. However, in the instant case the Tribunal or, in any event, the Chairman had acted in contravention of the terms of the agreement between the parties.

50. Despite having made a request in writing, the 3rd Arbitrator was not given any scope or opportunity to deliberate on the issues with Chairman and the other member of the Tribunal before the Award was finalized and signed. On the contrary, he was merely required to append his signature on a one hundred page typed Award which had already been signed by the Chairman and the 2nd Arbitrator. Even if there was any deliberation before the Award was made and signed, it took place between the Chairman and the 2nd Arbitrator, evidently, without the participation and input of the 3rd Arbitrator. In such premises, the Award in question cannot be

I LNJ (2012)

M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)

termed as an Award by Consequently, it cannot be Tribunal had either acted accordance with the terms of between the parties, as it was under the Act.

the majority. said that the fairly or in the agreement required to do

51. From a careful reading of the provisions laid down in the Act as well as the Model Law, it appears that neither the Act nor the Model Law have considered the scenario where one of the Arbitrator is, in fact, excluded totally from the process of deliberation that is required to take place between the members of a Tribunal before an Award is made. Neither the Act or the Model Law contains any provision to that effect.

52. In my view, the provisions of section 43(1)(a)(v) of the Act as well as Articles 34(2)(a)(iv) and 36(1)(a)(iv) of the UNCITRAL Model Law are attracted in the instant case, both of which provides for setting aside an Award on the ground that “the arbitral procedure was not in accordance with the agreement of the parties”.

53. It has also been argued by Mr. Hossain that the Award is liable to be set aside on the ground of being opposed to public policy.

54. In the case of Hindustan Petroleum Corporation Limited v. Environmental Engineers Ltd. and another, reported in (2001) 2 Comp 79 (Bom), it was held : “As the expression is incapable of precise definition, those challenges would be available, if the court finds the award abnoxious to its sense of justice, based on settled principles of

515

law, whether as to the conduct of the arbitrator or arbitral proceedings or the award itself. Justice is the beginning and the end. Law must ultimately reach out to justice. Public policy contemplates that, courts must reflect it.”

55. In Murlidhar Agarwal and another v State of Uttar Pradesh and others, reported in AIR 1974 SC 1924, the Supreme Court of India observed : “Public policy’, has been defined by Winfield as a principle of judicial legislation or interpretation founded on the current needs of the community.”

56. In the case of Oil and Natural Gas Corporation Ltd v. SAW Pipes Ltd, reported in AIR 2003 SC 2629, the Supreme Court of India held : “In exercising jurisdiction, the Arbitral Tribunal cannot act in breach of some provision of substantive law or the provisions of the Act.” 57. In the case referred to above, the Court further held : “It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of

516

Sarwar KamalLtd. Vs.Vs. The State, (M. Enayetur Rahim, J) Rahman Chowdhury, J) M/S Saudi-Bangladesh Services Company Saudi Arabian Airlines Corp.

(Zubayer

statutory provisions cannot be said to be in public interest.�

58. Evidently, the final deliberation that took place leading to the making and signing of the Award was only between the Chairman and the 2nd Arbitrator to the total exclusion of the 3rd Arbitrator, although the parties had referred the matter to a Tribunal comprising of three members. In my view, this is not what the Act or the Model Law contemplates and this is certainly not what the parties intended.

Consequently, upholding the Award would be against the spirit and intendment of the Act and that, no doubt, would be contrary to public policy.

59. Having considered the submissions advanced by the learned Advocates of the contending sides and in due deference to the decisions cited above, this Court is inclined to hold that the 3rd Arbitrator was neither consulted nor given any opportunity by the Chairman of the Tribunal to deliberate and express his views on the issues before making and signing the Award under challenge.

60. In the premises noted above, I am of the view that there was non-compliance with the provisions of the Arbitration Act, 2001.

Consequently, the Award dated 08.06.2006 made by the majority members of the Arbitral Tribunal is liable to be set aside.

61. Accordingly, the Award dated 08.06.2006 is hereby set aside.

There will be no order as to costs.

Ed.

I LNJ (2012)

HIGH COURT DIVISION (Criminal Revisional Jurisdiction) Mr. M. Enayetur Rahim, J.

} }

And Mr. Sheikh Md. Zakir Hossian, J. Judgment 25.04.2012

}

}

Sarwar Kamal ...Petitioner Vs. The State ...Opposite Parties

Constitution of Bangladesh, 1972 Article 49 Code of Criminal Procedure (V of 1898) Section 401 (1) It is contended on behalf of the petitioner that the Court may only enquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution.

Since the government failed to produce the relevant file and in the affidavit the State did not state any fact with regard to the same it is not possible for the Court to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived this Court to answer properly all those questions. In view of the cited proposition of law, though those are not binding on us; but it has got persuasive value, the contention of the learned advocate of the

Criminal Revision No. 801 of 1997.

564

Alamin @ Alam Vs. The State (Md. Abu Zafor Siddique, J.)

HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction)

I LNJ (2012)

Judgment Md. Abu Zafor Siddique,J:

On an application under section 561A of the Code of Criminal Procedure a rule was } Alamin alias Alam ...Accused- issued calling upon the opposite party to show And } Petitioner. cause as to why the judgment and order dated Mr. Md. Abu Zafor } 17.03.2008 passed by the learned Additional Vs. Siddique, J. Sessions Judge 2nd Court and Special Tribunal The State } Judgment ...Opposite-party. No.6, Kushtia, convicting the accused } petitioner under section 19A of the Arms Act, 11.12.2011 1878 and sentencing him to suffer rigorous imprisonment for 10(ten) years in Special Code of Criminal Procedure (v of 1898) Tribunal Case No.104 of 2006, arising out of Sections 342 and 561A G.R. Case No.177 of 2006 corresponding to Arms Act (XI of 1878) Doulatpur Police Station Case No.11, dated Section 19A The object of the provisions of section 342 of 11.08.2006 shall not be quashed. the Code of Criminal Procedure is to put the 2. The prosecution case at the trial, in short, incriminating evidence against the accused is that one Md. Abdul Hai Sarker, Inspector of petitioners for the purpose of enabling them Police and Officer-in-charge of Daulatpur to explain the circumstances which having Police Station, Kushtia, lodge first information not been done so, the petitioner has been with Daulatpur Upazilla, Kushtia, alleging, prejudiced as mandatory provision of law inter alia, that on 10.08.2006 while the was not followed. Most of the prosecution informant along with other officers and forces witnesses are police personal, who went out from Daulatpur Police Station, at that corroborated one another but the public time he got secret information that accused witnesses made contradictory statement Alamin @ Alam was staying in the house of which shows that the learned judge has not his father-in-law namely Jamil Uddin in the applied his judicial mind which is an abuse village Tekala with arms. The informant party of the process of law and hence the went to the house of Jamil Uddin with impugned judgment and sentence is chowkider Sariful and dafader Nazrul Islam quashed. .... (25 to 27). and the informant party caught red-handed the Mr. Md. Rezaul Haque, J.

}

Shahid Mia and another -Vs.- State and another, reported in 60 DLR (HCD),-371, ref.

Mr.Md.Saiful Alam, with Mr.Md.Mozaffar Hossain, Advocate --For the Petitioner.

Mr.Zaharul Haque,D.A.G.

--For the state Criminal Miscellaneous Case No. 5684 of 2010.

accused Alamin alis Alam with the arms from the dwelling hut of the said Jamil Uddin.

Thereafter the informant prepared the seizure list in presence of witnesses and obtained the signature on the seizure list, hence the FIR. 3. The case was investigated by the investigating officer who visited the place of occurrence and prepared a sketch map of the place of occurrence along with a index. He examined the witnesses and recorded their

I LNJ (2012)

Alamin @ Alam Vs. The State (Md. Abu Zafor Siddique, J.)

statements under section 161 of the Code of Criminal Procedure. After investigation the investigating officer found prima-facie case against the sole accused and submitted a charge sheet being No.141 dated 17.08.2006 under section 19A and 19(f) of the Arms Act, 1878, and the case record was transmitted to the Additional Session Judge, 2nd court and Special Tribunal-6, Kushtia (in-charge), for trial where it was registered as Special Tribunal Case No. 104 of 2006. Charge was framed against the sole accused and it was read over to him. The accused petitioner pleaded not guilty and claimed to be tried in accordance with law.

4. During trial the prosecution examined as many as 12 witnesses out of 16 cited witnesses in the charge sheet, but the defence examined none. The defence case as it appears from the trend of cross-examination of the prosecution witnesses is that the case was false and no arms were recovered from the possession of the petitioner. The petitioner has been entangled with this case out of influence of enemies of the petitioner.

5. Considering the facts, circumstances and deposition of prosecution witnesses and hearing the parties the trial court convicted and sentenced the accused in the manner as already stated above.

6. Since the convict could not prefer appeal in time he filed an application under section 561A of the Code of Criminal Procedure and obtained the instant rule.

7. Mr. Md. Saiful Alam, the learned Advocate appearing on behalf of the convictpetitioner, has submitted that the accused petitioner is innocent and he has been implicated in the instant case falsely. He has next submitted that the instant case is absolutely a case of no legal evidence and the prosecution miserably failed to prove the guilt

565

of the convict-petitioner, as such, he should be acquitted. He has further submitted that the convict-petitioner was not also properly examined under section 342 of the Code of Criminal Procedure, and this being the mandatory provision of law the accused appellant has been seriously prejudiced and as such the convict-petitioner should be acquitted of the charge leveled against him and the impugned judgment and order of conviction is liable to be quashed. In support of his contention the learned Advocate of the petitioner has referred the case of Shahid Mia and another -Vs.- State and another, reported in 60 DLR (HCD),-371.

8. In reply, Mr. Md. Zahurul Haque, the learned Deputy Attorney General appearing on behalf of the state, has supported the impugned judgment passed by the learned Judge of the Tribunal and has submitted the police personnel have categorically stated that the arms and ammunition were recovered from the absolute control and possession of the petitioner. He has further submitted the evidence of the police personnel are unimpeachable, so, there is no harm to convict a person relying upon the evidence of the police personnel, and as such there is no reason to quash the judgment and order of conviction.

9. We have heard the submissions of both sides, perused the application under section 561A of the Code of Criminal Procedure, impugned judgment and order of conviction and sentence, First Information Report, chargesheet, evidence of prosecution witnesses, examination of the convict petitioner under section 342 of the Code of Criminal Procedure and other materials and relevant documents available in the record.

10. From the records it appears that the prosecution examined as many as 12 witnesses

566

Alamin @ Alam Vs. The State (Md. Abu Zafor Siddique, J.)

amongst them P.W.-1. Md. Foysal Alam A.S.I. of Police stated in his deposition that on 11.08.2006 he along with other officers and staffs went to the house of Jamil Uddin the father-in-law of the petitioner and caught the petitioner red-handed and recovered arms and ammunitions in presence of the witnesses.

Thereafter, a seizure list was prepared in the place of occurrence. In his cross-examination he denied all the suggestions given by the defence.

11. P.W.-2, Md. Nazrul Islam is a seizure list witness, he stated in his deposition that- the convict-petitioner Alamin was caught redhanded with a pistol and magzine. Police prepared a seizure list and obtained his signature on the seizure list. He proved his signature as Exbt.-1/2.

12. P.W.-3, Naharul Islam is the local witness, he stated in his deposition that police showed him 1(one) round of bullet. In crossexamination he stated that he knew nothing about the recovery of alleged arms.

13. P.W.-4, Md. Idriss Ali was tendered by the prosecution and the defence declined to cross-examination him.

14. P.W.-5, Shahadat Hossain is the local witness. He deposed that police showed him an arms. He knew nothing more than that.

15. P.W.-6, Zahurul Alam is a member of raiding party and cordoned of the place of occurrence. They caught red handed the accused with a pistol and 4 round bullets. In his cross-examination he denied all the suggestions given by the defence.

16. P.W.-7, Sariful Islam is a local chowkider stated in his deposition that police caught redhanded the accused with arms and ammunition and prepared seizure list and took his signature.

He proved his signature on the seizure list as

I LNJ (2012)

Exbt,-1/3. In his cross-examination he denied all the suggestions given by the defence.

17. P.W.-8, Md. Kamal is a member of raiding party. He was tendered by the prosecution and the defence declined to crossexamination him.

18. P.W.-9, Abdus Salam is a member of raiding party. He was supported the prosecution case. In his cross-examination he dined all the suggestions given by the defence.

19. P.W.-10, Delowar Hossain is another member of raiding party. He was tendered by the prosecution and the defence declined to cross-examination him.

20. P.W.11, Abdul Hai Sarder Inspector of Police and Officer-in-charge of the Daulatpur Police Station, he is informant of the case. He supported the FIR story. He identified the FIR and the arms in the court. He Exbt. seizure list as Exbt.-1, and his signature Exbt.-1(4), FIR Exbt. 2 and signature Exbt.2/1, 2/2. One pistol material Exbt-I, Magzine material Exbt. II and Bullate material Exbt.III. In his crossexamination he denied all the suggestions given by the defence.

21. P.W.-12, Police Inspector Abdul Karim the investigating officer of the Case. He visited the place of occurrence prepared sketch map with index, examined the witnesses and recoded the statement under section 161 of the Code of Criminal Procedure; and having prima face case he submitted charge sheet against the accused, under section 19A and (f) of the Arms Act 1878.

22. These are all evidences adduced by the prosecution.

23. In this case having gone through the examination of the petitioner under section 342 of the Code of Criminal Procedure on 04.01.2007 by the trial court.

I LNJ (2012)

Alamin @ Alam Vs. The State (Md. Abu Zafor Siddique, J.)

24. In the statement of section 342 of the Code of Criminal Procedure it is stated-

Òcixÿv Avgvi m¤§y‡ÿ I ¯ªywZ †MvP‡i M„nxZ nBj Ges Bnv‡Z Awfhy³ e¨vw³i Dw³ m¤ú~b© I h_vh_ iæ‡c wjwLZ nBqv‡Q| Ó 25. From the above statement it appears that while examining the accused-petitioner under section 342 of the Code of Criminal Procedure the tribunal did not put the incriminating evidence against the accused person for enabling him to explain any circumstance, which has prejudiced him. Section 342 of the Code of Criminal Procedure is based on the principle involved in the maxim audi alteram partem- that is no one should be condemned unheard. It is the utmost duty of the court to give an opportunity to an accused to defend himself. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused person to the points in the evidence which are against him for which he may be convicted, so, he is given a chance to offer his explanation as to those. But from the plain reading of examining the accused under section 342 of the Code of Criminal Procedure that this petitioner was not given proper opportunity to offer his explanation as to the guilt for which the accused petitioner has been prejudiced.

26. We have carefully considered the provision of law it is clear that the object of this section is to ensure that the accused have examined as required under section 342 of the Code of Criminal Procedure, this is mandatory provision of law. But the trial court absolutely failed to do it. It has already observed that while examining the convict-petitioner under section 342 of the Code of Criminal Procedure

567

the trial court failed to put the incriminating evidence against the convict petitioner for the purpose of enabling them to explain any circumstance and thereby the petitioner has been prejudiced. Section 342 of the Code of Criminal Procedure provides that the accused should be examined for the purpose of enabling him to explain any circumstance appearing in the evidence against him.

27. At the same time on careful scrutiny of the evidence of the prosecution witnesses and other materials on record it appears that the prosecution witnesses are all most police personnel and corroborated each other but the public witnesses have stated contradictory statement. So the learned Judge has not applied his judicial mind in passing the order of conviction and sentence, which is an abuse of the process of the law, which deserves our interference.

28. Accordingly, we find merit in this rule.

29. In the result, the Rule is made absolute the impugned judgment and order of conviction and sentence dated 17.03.2008 passed by the learned Additional Sessions Judge, 2nd Court and Special Tribunal No.6, Kushtia, in Special Tribunal Case No.104 of 2006, arising out of G.R.Case No.177 of 2006 corresponding to Doulatpur Police Station Case No.11, dated 11.08.2006 is here by quashed.

30. Let the petitioner be set at liberty at once, if not wanted in connection with any other case.

Send down the Lower Court Records and communicate the order at once.

Ed.

568

Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

HIGH COURT DIVISION (Special Original Jurisdiction) Mr. Md. Ashfaqul Islam, J. And Mr. S.M. Emdadul Hoque, J. Judgment 14.03.2011

I LNJ (2012)

Sheikh Hasina, 60 DLR (AD) 90 and Kudrat-eElahi Panir vs. Bangladesh reported in 44 DLR (AD) 319, ref.

} Dr. Md. Shahjahan Non appears } Advocate ...For the Petitioner. ...Petitioner. } Vs. Mr. Ahsanul Karim, Advocate } Election ...For the Respondent No. 7 and } Commission Judgment others } ...Respondents. Md. Ashfaqul Islam, J:

Constitution of Bangladesh, 1972 Article 102 The Petitioner did not even disclose in the writ petition that his nomination paper was rejected by the returning officer on 12.12.2008. The petitioner could have proceeded before the election commission against such decision as it was done by respondent no.7.The petitioner had certainly misdirected himself in bringing the instant writ petition against the decision of the Appellate Division in Shah Alam’s case and that score this petition itself is not maintainable. This writ petition can be disposed of without the presence of the petitioner since the matter is covered by the aforesaid decision. The election of 9th parliamentary was held on 29.12.2008 in which the respondent No. 7 came out successful. His nearest candidate who was defeated in the election did not challenge the election. Therefore, with the lapse of time this writ petition has also become infructuous. .....(18, 20 and 23) A.F.M. Shah Alam -V- Mujibul Hoque & others 41 DLR (AD) P-68,A.K.M Maidul Islam-VBangladesh Election Commission and others,48 DLR(AD) 208; Bangladesh vs.

Writ Petition No. 9875 of 2008.

The petitioner Dr. Md. Shahjahan is a practicing Advocate of Bangladesh Supreme Court and at his instance this Rule Nisi was issued calling upon the respondent Nos.1, 6 and 7 to show cause as to why the Nomination Paper of the of the respondent No.7 accepted by the Respondent No.1 in Second Appeal in the garb of review should not be declared illegal and without lawful authority.

2. Before issuance of the Rule on 18.12.2008, a vacation Bench of this Division on 11.12.2008 directed the respondent No.1, Election Commission and the respondent No.6, Deputy Commissioner, Chandpur and Exofficio Returning Officer to accept the nomination paper of the petitioner subject to scrutiny and at the time of issuance of the Rule on 18.12.2008 directed them to treat the Nomination paper of the petitioner as valid.

3. The petitioner under the following circumstances moved the instant writ petition:The respondent No.1, Bangladesh Election Commission declared the schedule of 9th national parliamentary election on 23.11.2008. The Election Commission also fixed the last date of filing Nomination paper on 30.11.2008 and scrutiny of Nomination papers on 3rd and 4th December and last date of withdrawal of Nomination paper on 11.12.2008. The petitioner as an activist of

I LNJ (2012) Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

Bangladesh Nationalist Party (BNP) sought Nomination from his party to contest the 9th Parliamentary Election but his political party did not nominate him as a candidate and nominated the added respondent No.8, Mr. Md. Hannan for the purpose.

4. Since 30.11.2008 was the last date for filing Nomination paper for the election and as the petitioner did not get Nomination from his party, he failed to file the same on that date with the Returning Officer and subsequently on 02.12.2008 he got party nomination to file the same with the returning officer Comilla. Under the situation, he filed writ petition No.9708 of 2008 and obtained a direction upon the Returning Officer to allow him to submit Nomination paper before expiry of last date i.e.

4.12.2008. On that date the petitioner failed to submit the Nomination paper as per the adinterim order passed in Writ petition No.9708 of 2008 and then he filed the present writ petition No.9875 of 2008 praying for an interim direction upon the Returning Officer to allow him to submit Nomination paper and the High Court Division on 11.12.2008 without issuing any Rule passed an ad-interim order directing the Returning Officer to accept the Nomination paper of the petitioner after scrutiny (Annexure - D to the supplementary affidavit filed dated 4.12.2008 by the petitioner). The Returning Officer rejected the Nomination paper of the petitioner on 12.12.2008 and also rejected the nomination paper of the respondent No.7, Md. Harunur Rashid and allowed the same of the added respondent No.8 by a single order dated 04.12.2008 as evidenced respectively by Annexure ‘F’ and Annexure ‘C’ of the supplementary affidavit dated 14.12.2008 filed by the petitioner. On 18.12.2008 Rule was issued in the present writ petition No- 9875 of 2008 with a direction upon the respondent No-

569

1 and 6 to treat the Nomination paper of the petitioner as valid.

5. Meanwhile the respondent No.7 Harunur Rashid being aggrieved by the order of the Returning Officer filed appeal before the Election Commission being Appeal No.75 of 2008 challenging the order of the Returning Officer rejecting his Nomination paper. He also filed another appeal before the Election Commission being Appeal No.56 of 2008 challenging the order of acceptance of the Nomination paper of the added respondent No.8 Mr. Hannan by the Returning Officer.

The Election Commission by order dated 10.12.2008 allowed both the appeals preferred by the respondent No.7 declaring his Nomination paper to be valid and rejecting the Nomination paper of the added respondent No.8 as invalid (Annexure -H) of the supplementary affidavit dated 27.9.2009 filed by the petitioner.

6. The petitioner instead of challenging before the Election Commission, the order of cancellation of his Nomination paper by the returning officer dated 12.12.2008 as it was done by the respondent No.7, moved the instant writ petition questioning the acceptance of the Nomination paper of the respondent No.7 by the Election Commission and also obtained ad-interim order that directed the Election Commission to treat his Nomination paper as valid.

7. Be it mentioned that the added respondent No.8 at the relevant time by filing writ petition No.9904 of 2008 challenged the order of the Election Commission dated 10.12.2008 rejecting his Nomination paper in Appeal No.56 of 2008 but the High Court Division summarily rejected the said writ petition by order dated 15.12.2008. He then filed another writ petition being Writ Petition No.9905 of

570

Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

2008 challenging the order of the Election Commission allowing the Nomination paper of the respondent No.7 in Appeal No.75 of 2008, which was also summarily rejected by the High Court Division on 15.12.2008. Thereafter he filed Election Petition No.07 of 2009 before the High Court Division challenging the National Parliamentary election held on 29.12.2008 and the High Court Division by the judgment and order dated 17.05.2009 dismissed the said Election Petition.

8. The petitioner Dr. Md. Shahjahan did not move any application before the Election Commission against the order of the Returning Officer canceling his Nomination paper in the manner as it has been done by the respondent No.7 and the added respondent No.8. He has directly come before us under Article 102 of the Constitution.

9. That being the background, we are to settle the issue whether the petitioner has any locus standi to file the instant writ petition directly under Aticle 102 of the constitution in the facts and circumstances of the case.

10. This writ petition has been appearing in the daily cause list for quite a long time but no one appeared for the petitioner though the matter came up for hearing in the list with the name of the learned Advocate appearing for the petitioner. However, Mr. Ahsanul Karim the learned counsel for the respondent No.7 submits that the instant case is covered by the decision of the Appellate Division and for that reason this writ petition can be decided by us even without hearing the petitioner.

11. Mr. Karim mainly argued that the writ petition itself is not maintainable. In elaborating his contention he submits that the petitioner before issuance of the Rule on 18.12.2008 has moved before the Single Vacation Bench on 11.12.2008 and got the ad-

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interim order and almost at the same point of time the respondent No.7 filed two appeals before the Election Commission against the order of rejection of his Nomination paper and acceptance of the Nomination paper of the added respondent No.8 Mr. Hannan by the returning officer and those appeals were allowed by the Election Commission on 10.12.2008. The added respondent No.8 challenged the decision of the Election Commission dated 10.12.2008 in two writ petitions viz writ petition No. 9904 of 2008 and writ petition No. 9905 of 2008 and both the petitions were summarily rejected by this Division against which he moved Civil Petition For Leave To Appeal No. 1009 of 2008 before the Appellate Division which was eventually not pressed by him.

12. But the petitioner did not disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. Therefore, Mr. Karim submits that the petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper in the manner as it was done by the respondent No.7 and without doing so he has directly come under Article 102 of the Constitution which is admittedly against the decision of the Appellate Division on the point.

He placed reliance on the decisions reported in A.F.M. Shah Alam -V- Mujibul Hoque & others 41 DLR (AD) P-68, 48 DLR (AD) P208 in support of his contention as a whole.

13. Besides, placing reliance on the decision of Government of Bangladesh vs. Sheikh Hasina, 60 DLR (AD) 90 he further submits when a writ petition can be decided on a sole ground, this Division is not required to address any additional ground other than the said sole ground.

I LNJ (2012) Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

14. He further submits that the election was held on 29.12.2008 in which the respondent No.7 came out successful securing 88 lacs votes by defeating his nearest rival who secured 81 lacs votes. But the candidate who lost in the election against the respondent No.7 did not challenge the said election thereby meaning that the election was fair. Therefore, under no circumstances the instant petition filed by the petitioner can be considered to be maintainable.

15. Upon over all condition of the case, he concludes that with the lapse of time this writ petition has also become infractuous.

16. Be that as it may we have heard the Learned counsel for the respondent at length and considered his submissions. Let us be very specific that this matter came up for hearing on several days but no one appeared for the petitioner even the matter appeared in the list with name of the advocate for the petitioner.

Since the matter is covered by the decision of the Appellate Division in Shah Alam’s case we hold that we can dispose of the writ petition without the presence of the petitioner. (Underlinings are mine) 17. In the landmark decision of A. F. M. Shah Alam Vs. Mujibul Haq and others 41 DLR(AD) 68 our Appellate Division with clarity categorized the issues to be followed in the election process (in case of local government election). His Lordship Justice Badrul Haider Chowdhury observed as under: “(1) Under rule 70 read with Section 24 of the Ordinance the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules.

571

(2) In so doing it may pass any order, unless specifically barred, including an order for repoll, acceptance/consolidation of result, review etc. on the basis of materials before it. The observance of the rule of audi alteram partem though desirable in some circumstances is not an invariable pre-condition for the validity of such order.

(3) The jurisdiction of the High Court Division under Article 102 of the Constitution can not be invoked except on the very limited ground of total absence of jurisdiction (coram nonjudice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because (Underlinings are mine) : (a) the real and larger issue of completion of free and fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes. (b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution. (c) almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.”

18. The ratio decidendi of the decision of Shah Alam’s case that no step in the election process can be challenged under Article 102 of the Constitution in the High Court

572

Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

Division unless the impugned order passed by the authority concern is corum nonjudice or order is afflicted with malice in law (in case of local government election) has been also made applicable in case of parliament and presidential election held under the Constitution. In the case of A.K.M. Maidul Islam vs. Bangladesh Election Commission and others 48 DLR (AD) 208 Justice Mustafa Kamal observed on the point: “In the case of AFM Shah Alam vs.

Majibul Huq and others, 41 DLR (AD) 68, this Court has in very clear terms laid down that in local government elections no step in the election process can be challenged under Article 102 of the Constitution in the High Court Division unless the impugned order passed by the authority concerned is coram non judice or is afflicted with malice in law. This decision of ours is equally if not more forcefully applicable to parliamentary and Presidential elections held under the Constitution.

The petitioner has neither alleged coram non judice nor malice in law in the writ petition.”

19. The Constitution vests the superintendence, direction and control of the preparation of the electoral rolls for the presidential and parliamentary elections and conduct of such elections in the Election Commission. Election is a long, elaborate and complicated process which starts with the notification for holding the elections and ends with the declaration of the result of polling in the manner prescribed by law. The Commission has to supervise, control, and direct each and every step of the process to

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ensure free and fair election and the Commission must be deemed to have all the power and discretion to ensure free and fair election as that is the manifest intendment of the Constitution in providing for the Commission. According to the decision in Shah Alam the High Court Division can interfere with the decision of the Commission when it is coram non judice or vitiated by malice in law. In judging whether a decision is vitiated by malice in law, the court does not consider the adequacy of the materials but examines whether it is arbitrary.

20. In the case in hand we have found that the petitioner did not even disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. The petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper as it was done by the respondent No.7 and for that reason, the petitioner had certainly misdirected himself in bringing the instant writ petition admittedly against the decision of the Appellate Division in Shah Alam’s case as referred to above and on that score this petition itself is not maintainable.

(Underlinings are mine) 21. Let us now digress to another aspect of the case. When a writ petition can be decided by deciding one issue only no other point need be decided. In the decision of Kudrat-e-Elahi Panir vs. Bangladesh reported in 44 DLR (AD) 319 it was held: “Therefore the broad decision that a law can be declared void in case of a conflict with any provision of Part II of the constitution was uncalled for and made on hypothetical facts. This, as a rule, the Courts always abhor. The

I LNJ (2012) Dr. Md. Shahjahan Advocate Vs.Vs. Election Commission and others (Md. (M. Ashfaqul Islam, J.) J).

Prof.

Mahbub Ahmed and others Securities and Exchange Commission Enayetur Rahim,

Court does not answer merely academic question but confines itself only to the point/points which are strictly necessary to be decided for the disposal of the matter before it. This should be more so when Constitutional questions are involved and the Court should be ever discreet in such matters. Unlike a civil suit, the practice in Constitutional cases has always been that if the matter can be decided by deciding one issue only no other point need be decided.�

(Underlinings are mine) 22. Reflection of this decision could also be found in the case of Bangladesh vs. Sheikh Hasina 60 DLR (AD) 90 as referred to above.

23. Lastly, we also found substance in the submissions of the learned counsel for the respondent No.7 that the election of 9th parliamentary was held on 29.12.2008 in which the respondent No.7 came out successful from a particular constituency. His nearest candidate who was defeated in the election did not challenge the election. Therefore, with the lapse of time this writ petition filed by the petitioner has also become infructuous.

24. In the light of the decisions of our apex court and on a critical appraisal of the entire case from the very beginning till the decision of the election held on 29.12.2008 we have viewed the respective cases of the petitioner, the respondent No.7 and the added respondent No.8 from a different perspective and with objectivity. On the premises, we hold that this rule should be discharged on the ground of maintainability as well as being infructuous.

In the result, this Rule on the two counts as mentioned above is discharged however, without any order as to cost.

Ed.

573

HIGH COURT DIVISION (Criminal Revisional Jurisdiction) Mr. M. Enayetur Rahim, J. And Mr. Sheikh Md. Zakir Hossain, J. Judgment 23.11.2011

} Criminal Revision } }

} } } } }

No. 221 of 1999 Professor Mahbub Ahmed ...Petitioner.

Vs. Securities and Exchange Commission ...Opposite Party Criminal Revision

} No. 222 of 1999 } Mr. Shahidullah ...Petitioner.

Vs. } Securities and Exchange } Commission } ...Opposite Party

}

} Criminal Revision } } } } } }

No. 223 of 1999 M.G. Azam Chowdhury ...Petitioner.

Vs. Securities and Exchange Commission ...Opposite Party

Code of Criminal Procedure (V of 1898) Section 561 A Securities Exchange Ordinance (XVII of 1964) Taking into consideration the allegation made in the petition of complaint and Section 17 of the Securities Exchange Ordinance, 1969 it appears that those allegation Criminal Revision Nos. 221 to 223 of 1999.

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(ঙ)

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Clause (31) eর পর িনm প নূতন clause (31A) সিnেবিশত হiেব, যথাঃ“(31 A) "financial institution" has the same meaning as assigned to it in আিথক pিত ান আiন, 1993 (1993 সেনর 27 নং আiন) (Financial Institution Act, 1 993) (Act No. 27 of 1993);

(চ)

Clause (37) eর পিরবেত িনm প sub-clause (a) pিতsািপত হiেব, যথাঃ"(37)

(ছ)

"Inspector"' means an Inspector of Taxes under section 3 and also includes a person appointed to hold charge of an Inspector of Taxes;" এবং

Clause (58) eর sub-clause (a) eর পিরবেত িনm প sub-clause (a) pিতsািপত হiেব, যথাঃ“(a) any pay or wages;"

১৬। Ordinance No. XXXVI of 1984 Section 19 eর সংেশাধন । uk Ordinance eর section 19 eর(ক)

Sub-section (21) eরa)

“exceeding taka one lakh" শb িলর পিরবেত "not exceeding taka five lakh" শb িল pিতsািপত হiেব; eবং

আ)

“have been received as loan by an assessee" শb িলর পর “not being a company” কমা o শb িল সিnেবিশত হiেব।

(খ)

Sub-section (21 B) এর "transferred by a person partly or fully within the period of limitation" শb িলর পিরবেত "transferred by a person partly or fully from that business or profession within the period of limitation" শb িল pিতsািপত হiেব

(গ)

Sub-section (24) এর পিরবেত িনm প sub-section (24) pিতsািপত হiেব, যথাঃ"(24)

(ঘ)

Where a company, not listed with any stock exchange, receives paid up capital from any shareholder during any income year in any other mode excepting by crossed cheque or bank transfer, the amount so received as paid up capital shall be deemed to be the income of such company for that income year and be classifiable under the head "Income from other sources".

Sub-section (26) এর "from any other company" শb িলর পিরবেত "from any other person" শb িল pিতsািপত হiেব; eবং

(ঙ)

Sub-section (27) এর পর িনm প নূতন sub-section (28) সংেযািজত হiেব, যথাঃ-

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“(28) Where an assessee, being an individual, receives any sum or aggregate of sums exceeding taka five lakh as loan or gift from any other person otherwise than by a crossed cheque or by bank transfer, the amount so received shall be deemed to be the income of such assessee for that income year in which such loan or gift was taken and shall be classifiable under the head "Income from other sources"." ১৭। Ordinance No. XXXVI of 1984 e নূতন section 19E eর সংেযাজন । uk Ordinance eর section 19D eর পর িনm প নূতন section 19E সংেযািজত হiেব, যথাঃ“19E. Voluntary disclosure of income.—(1) Notwithstanding anything contained in this Ordinance, any person —

(2)

(a)

who has not been assessed to tax for previous assessment year or years and he has not submitted return of income for those year or years may disclose such income in the respective heads of income in the return of income along with the income for the current assessment year; or

(b)

who has been assessed to tax for previous assessment year or years and any income has escaped assessment in those assessments or the amount of income assessed is less than the actual income, may disclose that income for respective heads of income in the return of income along with the income for the current assessment year.

Return of income mentioned in sub-section (1) shall be treated as valid, if— (a)

(3)

the assessee pays before the submission of return— (i)

tax payable at applicable rate on total income including such income under respective heads of income; and

(ii)

penalty at the rate of ten percent of tax proportionate to such income under respective heads of income; (b)

the return of income is submitted within the time specified in sub-section (2) of section 75; and

(c)

declaration is enclosed with the return of income in respect of the following: (i)

name of the person declaring;

(ii)

head of the declared income and amount thereof; and

(iii)

amount of tax and penalty paid thereof.

The provision of this section shall not apply, where— (a)

a notice under clause (b) of sub-section (3) of section 93 has been issued before submission of such return of income;

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(4)

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99

(b)

a notice on a banking company under clause (f) of section 113 has been issued before submission of such return of income;

(c)

any proceeding under sections 164, 165 or 166 initiated before submission of such return of income; or

(d)

any income declared under this section is—

has

been

(i)

not derived from any legitimate source of income; or

(ii)

derived from any criminal activities under any other law for the time being in force.

The income shown under this section may be invested in any income generating activities or any sector including the following: (a)

industrial undertaking including its expansion;

(b)

balancing, modernization, renovation and extension of an existing industry;

(c)

building or apartment or land;

(d)

securities listed with a Stock Exchange in Bangladesh; or

(e)

any trade, commercial, goods or services."

or industrial venture engaged production of

18 Ordinance No. XXXVI of 1984 eর section 25 eর সংেশাধন । uk Ordinance eর section 25 eর sub-section (1) eর clause (g) eর ‘any interest’ payable on such capital’ শb িলর পর uিlিখত কালন (:) eর পিরবেত

সিমেকালন ©(;) pিতsািপত হiেব eবং aতঃপর proviso wej~ß

হiেব| 19 Ordinance No. XXXVI of 1984 eর section 30 eর সংেশাধন । uk Ordinance eর section 30 eর clause (k) eর pাnঃিsত ফুলsপ (.) eর পিরবেত সিমেকালন (;)pিতsািপত হiেব eবং aতঃপর িনm প নুতুন দুi

clauses যথাkেম (l) o (m) সিnিবিশত হiেব, যথাঃ-

“(1)

any payment by way of commission paid or discount made to its shareholder director by a company;

(m)

any payment by a person exceeding taka fifty thousand or otherwise than by a crossed cheque or bank transfer excluding(i)

payment for the purchase of raw materials;

(ii)

salary or remuneration made to any employee, without prejudice to an obligation referred to in clause (i) ;

(iii)

any payment for government obligation."

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20।Ordinance No. XXXVI of 1984 eর section 46B eর সংেশাধন । uk Ordinance eর section 46B eর sub-section (1) eর পর কালন (:) সংেযািজত হiেব eবং aতঃপর িনm প proviso সংেযািজত হiেব, যথাঃ“Provided that an industry engaged in the production of item as referred to in clause (e) or clause (1) of sub-section (2) shall be entitled for exemption from tax under the provisions of this section even if it is set up in the districts of Dhaka, Gazipur, Narayanganj or Chittagong.”

21। Ordinance No. XXXVI of 1984 eর section 46C eর সংেশাধন । uk Ordinance eর section 46C eর sub-section (2) eর clause (o) eর “toll road” শb িলর পিরবেত “toll road or bridge” শb িল pিতsািপত হiেব । 22 । Ordinance No. XXXVI of 1984 eর section 47 eর সংেশাধন । uk Ordinance eর section 47 eর sub-section (1) eর “including a co-society carrying on the business of banking” kã¸wj wejyß nB‡e| ২৩ । Ordinance No. XXXVI of 1984 এর section 49 এর সং শাধন । uk Ordinance eর section 49 eর sub-section (1) eর (ক)

clause (d) eর পিরবেত িনm প clause (d) pিতsািপত হiেব, যথাঃ"(d)

(খ)

income derived by the importers on account of import of goods;";

িবলুp clause (zk) eর পর িনm প clause (zkk) সিnিবিশত হiেব, যথাঃ"(zkk) income derived on account of export cash subsidy;”; Ges

(গ)

clause (zx) eর pাnঃিsত ফুলsপ (.) eর পিরবেত সিমkলন (;)pিতsািপত হiেব eবং aতঃপর eক "(zy)

নতু ন clause (zy) সংযুিজত হiেব, যথাঃ-

income derived on account of international gateway service in respect of phone call."

২৪ । Ordinance No. XXXVI of 1984 এর section 52 এর সং শাধন । uk Ordinance eর section 52 eর sub-section (1) eর “or sub-contract” শb িলর পর “or local letter of credit (L/C)” শb িল , বণ িল , িচh o বnিন িল সিnেবিশত হiেব ।

25। Ordinance No. XXXVI of 1984 এর section 52K এর সং শাধন। uk Ordinance eর section 52k eর পিরবেত িনm প section 52k pিতsািপত হiেব, যথাঃ"52K. Collection of tax by City Corporation or Paurashava at the time of renewal of trade license.—Any person responsible for renewal of trade licence shall collect tax at the time of such renewal of each trade license at the rate of—

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(a)

taka five hundred in Dhaka City Corporation or Chittagong City Corporation;

(b)

taka three hundred in any City corporation, other than Dhaka and Chittagong City Corporation;

(c)

taka three hundred in any paurashava at any district headquarter;

(d)

taka one hundred in any other paurashava.

26। No. XXXVI of 1984 এর section 52K এর সং শাধন । uk Ordinance eর section 52N eর “four perccent” শb িলর পর "which shall be ited as final discharge of tax liability of the rental power company regarding the sale of such rental power” শb িল িবলুp হiেব । 27। Ordinance No. XXXVI of 1984 e নুতন section eর সংেযাজন । uk Ordinance eর section 25 eর section 52Q eর পর িনm প নুতন section 52R সংযুিজত হiেব। "52R. Deduction of tax from receipts in respect of international phone call. — (1) The bank, through which any sum on account of International Gateway (IGW) Services in respect of international phone call is received, shall deduct tax at the rate of one percent of the total amount representing the said receipt at the time of crediting it to the account of the International Gateway Services operator.

(2) The International Gateway (IGW) Services operator, by WHICH any sum related to international phone call is paid or credited to the account of Interconnection Exchange (ICX), Access Network Services (ANS) or any other person under an agreement with the Bangladesh Telecommunication Regulatory Commission (BTRC) shall deduct tax at the rate of five percent on the whole amount so paid or credited at the time of such payment or credit under the said agreement.

(3) Notwithstanding anything contained in sub-section (1) or (2) where the Board gives a certificate in writing on an application made by a person that income of the person is exempted or will be liable to tax at a rate of tax less than the rate specified in this section, the person responsible for such payment shall make the payment — (a) without deduction of tax; or (b) after deducting tax at a rate specified in the certificate.” ২৮। Ordinance No. XXXVI of 1984 এর section 53 এর সং শাধন। uk Ordinance eর section 53 eর section 53 eর (ক) uপাnিতকার “and exporters” শb িল িবলুp হiেব;

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(খ) sub-section (1) এর " and the bank through which the exporters receive payment shall make collection of tax payable by the exporters on account of export of goods” ” শb িল িবলুp হiেব (গ) sub-section (2) এর clause (a) এর "and exporters” শb িল িবলুp হiেব; eবং (ঘ) sub-section (3) এর “or exporter” শb িল িবলুp হiেব। 29। Ordinance No. XXXVI of 1984 এর section 53A এর সং শাধন। uk Ordinance eর section 53A eর – (ক)

“engineering college" শb িলর পর "or any college or school" শb িল সিnিবিশত হiেব, eবং

(খ)

"such amount as may be prescribed" শb িলর পিরবেত "at the rate of five percent" শb িল pিতsািপত হiেব।

30। Ordinance No. XXXVI of 1984 এর section 53BB এর সং শাধন। uk Ordinance eর section 53BB eর

zero point six zero percent (0.60%)" শb িল ,সংখ া িল, িচh িল o

বnিন িলর পিরবেত "zero point eight zero percent (0.80%)" শb িল , সংখ া িল,িচh িল o বnিন িল pিতsািপত হiেব। 31। Ordinance No. XXXVI of 1984 এর section 53BBBB এর সং শাধন। uk Ordinance eর section 53BBBB eর zero point seven zero percent (0.70%)" শb িল ,সংখ া িল, িচh িল o বnিন িলর পিরবেত "zero point eight zero percent (0.80%)" শb িল , সংখ া িল,িচh িল o বnিন িল pিতsািপত হiেব। 32। Ordinance No. XXXVI of 1984 এর section 53D এর সং শাধন। uk Ordinance eর section 53D eর sub-section (2) eর pাnঃিsত ফুলsপ (.) eর পিরবেত কালন (:) pিতsািপত হiেব eবং aতঃপর িনm প নুতন proviso সিnেবিশত হiেব, যথা:"Provided that no tax shall be deducted under this section if the total payment does not exceed ten thousand taka." ৩৩। Ordinance No. XXXVI of 1984 এর section 53DDD এর সং যাজজন । uk Ordinance eর িবলুp section 53DD eর পর িনm প নুতন section 53DD eর পর িনm প নুতন section 53DDD সিnেবিশত হiেব, যথাঃ"53DDD. Deduction of tax at source from export cash subsidy.—

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Any person responsible for paying any amount on account of export cash subsidy to an exporter for promotion of export shall, at the time of payment or credit of such amount, deduct or collect tax in advance at the rate of five percent on the amount so payable.”| ৩৪। Ordinance No. XXXVI of 1984 এর

section 53F এর সং শাধন । uk Ordinance eর

section 53 F eর পিরবেত িনm প section 53 F pিতsািপত হiেব, যথাঃ"53F. Deduction at source from interest on saving deposits and fixed deposits, etc.

— (1) Any person responsible for paying to a resident any sum by way of interest or share of profit on any saving deposits or fixed deposits or any term deposit maintained with any scheduled bank including a co-operative bank or any bank run on Islamic principles or non-banking financial institution or any leasing company or housing finance company, as the case may be, shall deduct, at the time of credit of such interest or share of profit to the account of the payee or at the time of payment thereof, whichever is earlier, income tax on such sum at the rate of — (a) ten percent where the person receiving such interest or share of profit furnishes his Taxpayer's Identification Number (TIN) to the payer; or (b) fifteen percent where the person receiving such interest or share of profit fails to furnish his Taxpayer's Identification Number (TIN ) to the payer : provided that the rate of deduction of tax shall be ten percent in case of saving deposit of which balance does not exceed taka one lakh at any time in the year.

(2)

Nothing contained in this section shall apply — (a) to interest or share of profit arising out of any deposit pension scheme sponsored by the Government or by a scheduled Bank with prior approval of the Government; or (b) to such payee or class of payees as the Board may, by a general or special order, specify in this behalf."

৩৫। Ordinance No. XXXVI of 1984 এর section 53FF এর সং শাধন । uk Ordinance eর section 53 FF eর clause (b) পিরবেত িনm প clause (b )pিতsািপত হiেব, যথাঃ"(b)

in case of land to which the document relates and on which stamp duty is chargeable under the Stamp Act, 1899(Act No. II of 1899) at the rate of— (i)

five percent for Dhaka, Gazipur, Narayanganj, Munshiganj, Manikganj, Narsingdi and Chittaong districts;

(ii)

three percent for any other district. "

৩৬। Ordinance No. XXXVI of 1984 এর section 53H এর সংেশাধন । uk Ordinance eর section 53 H eর sub-section (1) eর clauses (a) eবং (b) eর পিরবেত িনm প িতন চলাuেসস যথাkেম (a), (aa) eবং (b) pিতsািপত হiেব, যথাঃ-

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"(a) within the jurisdiction of Rajdhani Unnayan Kartripakya (RAJUK) and Chittagong Development Authority (CDA), three percent; (aa) within the jurisdiction of Dhaka and Chittagong districts excluding Rajdhani Unnayan Kartripakya (RAJUK) and Chittagong Development Authority (CDA), Gazipur, Narayanganj, Munshiganj, Manikganj and Narsingdi districts, City Corporation excluding Dhaka South City Corporation, Dhaka North City Corporation and Chittagong City Corporation, Paurashava, Cantonment Board, two percent; (b) in any area, other than the areas mentioned in clause (a) and clause (aa), one percent.”| ৩৭। Ordinance No. XXXVI of 1984 এর section 53J এর সংেশাধন । uk Ordinance eর section 53J eর “prescribed by the Board” শb িলর পিরবেত “of five percent ” শb িল pিতsািপত হiেব । ৩৮। Ordinance No. XXXVI of 1984 এর section 53K এর সংেশাধন । uk Ordinance eর section 53K eর(ক) uপাn কায় "private television channel" শb িলর পর "private radio station” শb িল সিnেবিশত হiেব; (খ) "private television channel" শb িলর পর "or private

radio station” শb িল

সিnেবিশত হiেব (গ) "on account of advertisement" শb িলর পর "or purchasing airtime of private television channel or radio station” শb িল সিnেবিশত হiেব। ৩৯। Ordinance No. XXXVI of 1984 এর section 75 এর সংেশাধন । uk Ordinance eর section 75 eর sub-section (2) eর clause (d) eর sub-clause (iii) eর পিরবেত িনm প sub-clause (iii) pিতsািপত হiেব, যথাঃ“(iii) In the case of a company, an audited statement of accounts and where the profit or loss of a business is different from profit or loss disclosed in the return of income in accordance with the provision of this Ordinance, a computation sheet showing how the income shown in the return is arrived at on the basis of profit and loss account." ৪০। Ordinance No. XXXVI of 1984 এর section 75A এর সংেশাধন । uk Ordinance eর section 75A eর sub-section (3) eর পর িনm প নুতন sub-section (4) সংযুিজত হiেব, যথাঃ“(4) Where the Deputy Commissioner of Taxes, after examining the return submitted under this section, finds any person, required by or under the provisions of chapter VII of this Ordinance to deduct, collect or pay to the credit of the Government tax, has failed so to deduct, collect or pay, shall deem such person an assessee in default under sub-section (1) of section 57.”

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৪১। Ordinance No. XXXVI of 1984 এর section 82BB এর সংেশাধন । uk Ordinance eর section 82BB eর – (ক) sub-section (3) eর pাnিsত কালন (:)eর পিরবেত ফুল sপ (.) pিতsািপত হiেব eবং aতঃপর proviso

িবলুp হiেব, eবং

(খ) sub-section (3) eর পিরবেত িনm প sub-section (5) pিতsািপত হiেব, যথাঃ- " (5) The initial capital investment of business or profession or any fraction of such initial capital shall not be transferred from that business or profession within the income year when the investment was made or within five years from the end of that income year.” ৪২। Ordinance No. XXXVI of 1984 এর section 82C এর সংেশাধন । uk Ordinance eর section 82C eর sub-section (2) eর – (ক) clause (a) eর পিরবেত িনm প clause (a) pিতsািপত হiেব, যথাঃ“(a) the amount representing the payments on account of supply of goods or execution of contract or local Letter of Credit (L/C) to which tax deductible under section 52;" (খ) clause (e) eর পর িনm প নুতন clause (ee) সিnেবিশত হiেব, যথাঃ"(ee)

the amount received by the rental power companies on account of sale of rental power under section 52N;"

(গ) clause (f) eর পর িনm প নুতন clause (ff) সিnেবিশত হiেব, যথাঃ"(ff)

the amount received by International Gateway (IGW) services operator or Interconnection Exchange (ICX] in respect of international phone call as mentioned in section 52R;"; এবং

(ঘ) clause (m) eর পর িনm প নুতন clause (mm) সিnেবিশত হiেব, যথাঃ"(mm) the amount on account of export cash subsidy as mentioned in section 53DDD; " ৪৩। Ordinance No. XXXVI of 1984 এর section 93 এর সংেশাধন । uk Ordinance eর section 93 eর sub-section (3) eর clause (b) eর ‘five’ শb র পিরবেত ‘six’ শb

pিতsািপত হiেব ।

44। Ordinance No. XXXVI of 1984 এর section 94 এর সংেশাধন । uk Ordinance eর section 94 eর sub-section (1A) eর পর িনm প নুতন sub-section (1B) সিnেবিশত হiেব, যথাঃ- " (1B) Notwithstanding anything contained in sub-section (1) or (1A), no order of assessment under section 107C of this Ordinance shall be made after the expiry of three years from the end of the assessment year in which the income was first assessable." ৪৫। Ordinance No. XXXVI of 1984 এর CHAPTER XI এরপর CHAPTER XIA এর সং যাজন। - uk Ordinance eর CHAPTER XI এরপর িনm প নুতন CHAPTER XI সিnেবিশত হiেব, যথাঃ-

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“CHAPTER XIA” Transfer Pricing 107A. Definitions.—In this Chapter, unless there is anything repugnant in the subject or context, (1) "arm's length price" means a price in a transaction, the conditions (e.g. price, margin or profit split) of which do not differ from the conditions that would have prevailed in a comparable uncontrolled transaction between independent entities carried out under comparable circumstances;"; (2) "associated enterprise", in relation to another enterprise,' means an enterprise which, at any time during the income year, has the following relationship with the other enterprise — (a) one enterprise participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or (b) the same person or persons participate, directly or indirectly, or through one or more intermediaries the management or control or capital, of 1 enterprises; or (c) one enterprise holds, directly or indirectly, shares carrying more than twenty five percent of the voting power in the other enterprise; or (d) the same person or persons controls shares carrying more than twenty five percent of the voting power in both enterprises; or (e) the cumulative amount of borrowings of one enterprise from the other enterprise constitutes more than fifty percent of the book value of the total assets of that other enterprise: or (f) the cumulative amount of guarantees provided by one enterprise in favour of the other enterprise constitutes more than ten percent of the book value of the total borrowings of the other enterprise: or (g) more than half of the board of directors or members of the governing board of one enterprise are appointed by the other enterprise; or (h) any executive director or executive member of the governing board of one enterprise is appointed by, or is in common with the other enterprise: or (i) the same person or persons appoint more than half of the board of directors or members in both enterprises, or (j) the same person or persons appoint any executive director or executive member in both enterprise; or (k) one enterprise has the practical ability to control the decision of the other enterprise; or

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(l) the two enterprises are bonded by such relationship of mutual interest as may be prescribed; (3) "enterprise" means a person or a venture of any nature (including a permanent establishment of such person or venture); (4) "independent enterprise" means an enterprise that is not an associated enterprise; (5) "international transaction" means a transaction between associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other transaction having a bearing on the profits, income, losses, assets, financial position or economic value of such enterprises, and includes— (a) a mutual agreement or arrangement between two or more associated enterprises for the allocation or apportionment of, or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises; (b) a transaction entered into by an enterprise with a person other than an associated enterprise, if there exists a prior agreement in relation to the relevant transaction between such other person and the associated enterprise, or the terms of the relevant transaction are determined in substance between such other person and the associated enterprise; (6) "permanent establishment" includes a place of management, a branch, an agency, an office, a warehouse, a factory, a workshop, a mine, an oil or gas well, a quarry or any other place of extraction of natural resources, a firm or plantation, or any other fixed place through which the business of the enterprise is wholly or partly carried on; (7) "property" includes goods, articles, things or items, patent, invention, formula, process, design, pattern, know-how, copyright, trademark, trade name, brand name, literary, musical, or artistic composition, franchise, license or contract, method, program, software, database, system, procedure, campaign, survey, study, forecast, estimate, customer list, technical data, any aspects or advertising and marketing, any item which has substantial value, or any other intangible property; (8) record" includes electronically held information, document and records; (9) "Transfer Pricing Officer" means any income tax authority authorised by the Board to perform the function of a Transfer Pricing Officer; (10) "transaction" includes an arrangement, understanding or action between two or more parties, whether or not such arrangement understanding or action is formal or in writing; or whether or not it is intended to be enforceable by legal proceeding; (11) "uncontrolled transaction" means a transaction undertaken between enterprises not being the associated enterprises.

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107B. Determination of income from international transaction having regard to arm's length price.-Notwithstanding anything contained in Chapter XI of this Ordinance, the amount of any income or expenditure, arising from an international transaction shall be determined having regard to the arm's length price.

107C. Computation of arm's length price. - (1) The arms’s length price in relation to an international transaction shall be determined by applying the most appropriate method or methods selected from the following methods based on the nature of transaction, the availability of reliable information, functions performed, assets employed; risks assumed or such other factors as may be prescribed, namely:(a)

comparable uncontrolled price method;

(b)

resale price method;

(c)

cost plus method;

(d)

profit split method;

(e)

transactional net margin method;

(f)

any other method where it can be demonstrated that: (i) none of the methods mentioned in clause (a) to (e) can be reasonably applied to determine arm’s length price for the international transaction; and (ii) such other method yields a result consistent with the arm's length price.

(2) The most appropriate method referred to in sub-section (1) shall be applied for determination of arm's length price in the manner as may be prescribed: Provided that the arm's length price determined under this section shall not result in total income lower than the total income that would have been resulted if the price at which international transaction has actually been undertaken were taken as the price charged or paid in the said international transaction.

(3) Where in the course of any assessment under Chapter IX of this Ordinance, the Deputy Commissioner of Taxes is of the opinion that— (a) the price charged or paid in an international transaction has not been determined by the assessee in accordance with sub-sections (1) and (2); or (b) the assessee has failed to maintain the information, documents or records in accordance with the provisions of section 107E; or (c) the information or data based on which the arm's length price was computed by the assessee is not reliable or correct;

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the Deputy Commissioner of Taxes may determine the arm's length price in relation to the said international transaction in accordance with provisions of sub-sections (1) and (2) on the basis of information or documents or other evidence available to him.

4) In determining the arm's length price under sub-section (3), the Deputy Commissioner of Taxes shall give an opportunity to the assessee by serving a notice calling upon him to show cause, on a date and time to be specified in the notice, why the arm's length price should not be so determined on the basis of information or documents or other evidence available to the Deputy Commissioner of Taxes.

(5) Where an arm's length price is determined under sub-section (3) of this section or under sub-section (4) of section 107D, the Deputy Commissioner of Taxes shall, by an order in writing. proceed to compute the total income of the assessee having regard to the arm's length price so determined.

107D. Reference to Transfer Pricing Officer.—(1) Notwith-standing anything contained in section 107C of this Ordinance.— (a) the Deputy Commissioner of Taxes, with prior approval of the the Board, may refer the determination of the arm's length price under section 107C to the Transfer Pricing Officer; (b) the Transfer Pricing Officer, with prior approval of the Board, may proceed to determine the arm's length price in relation to any international transaction.

(2) Where a reference is made or any proceedings have been initiated under sub-section (1), the Transfer Pricing Officer shall serve a notice on the assessee requiring him to produce or cause to be produced on a date to be specified therein, any evidence on which the assessee may rely in support of his computation of the arm's length price in relation to the international transaction question.

(3) The Transfer Pricing Officer shall, after considering the evidence produced before him or available to him including the evidence as he may require on any specified points from the assessee or from any other person, and after taking into account all relevant materials which he has gathered shall, by order in writing, determine the arm's length price in relation to the international transaction in accordance with section 107C of this Ordinance and send a copy of his order to the Deputy Commissioner of Taxes.

(4) The Deputy Commissioner of Taxes, upon receipt of the order under sub-section (3), shall proceed to compute the total income of the assessee in conformity with the arm's length price so determined by the Transfer Pricing Officer.

(5) The Transfer Pricing Officer may rectify any order passed by him under sub-section (3) so as to correct any mistake apparent from the record either of his own motion or on the mistake having been brought to his notice by the assessee or any other income tax authority, and the provisions of section 173 of this Ordinance shall, so far as may be. apply accordingly.

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(6) Where any rectification is made under sub-section (5), the Transfer Pricing Officer shall send a copy of his order to the Deputy Commissioner of Taxes who shall thereafter proceed to amend the order of assessment in conformity with such order of the Transfer Pricing Officer.

107E. Maintenance and keeping of information, documents and records.—(1) Every person who has entered into an international transaction shall keep and maintain such information, documents and records as may be prescribed.

(2) Without prejudice to the provisions of sub-section (1), The Board may prescribe the period for which the information, documents and records shall be kept and maintained.

(3) The Deputy Commissioner of Taxes may, by notice in writing, require any person to furnish any information, documents and records as prescribed under subsection (1) within the period as may be specified in the notice.

107F . Report from an accountant to be furnished.—Every person who has entered into international transaction or transactions the aggregate of value which, as recorded in the books of account, exceeds three crore taka during an income year shall furnish, on or before the specified date in the form and manner as may be prescribed, a report from a Chartered Accountant.

107G. Penalty for failure to keep, maintain or furnish information, documents or records to the Deputy Commissioner of Taxes.-Where any person fails to keep, maintain or furnish any information or documents or records as required by section I07E of this Ordinance, without prejudice to the provisions of Chapter XV of this Ordinance, the Deputy Commissioner of Taxes may impose upon such person a penalty not exceeding one percent of the value of each international transaction entered into by such person.

107H. Penalty for failure to comply with the notice or requisition under section 107C. — Where any person fails comply with the notice or requisition under section 107C of this Ordinance, the Deputy Commissioner of Taxes may impose upon such person a penalty not exceeding one percent of the value of each international transaction entered into by such person.

107I. Penalty for failure to furnish report under section 107F. — Where any person fails to furnish a report from a Chartered Accountant as required by section 107F of this Ordinance, the Deputy Commissioner of Taxes may impose upon such person a penalty of a sum not exceeding three lac taka.

107J. Applicability of this Chapter. — The provisions of this Chapter shall come into force from the date specified by the Board through notification in the official Gazette. "।

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46। Ordinance No. XXXVI of 1984 eর section 117 eর সংেশাধন। uk Ordinance eর section 117 eর – (ক) sub-section (1) eর clause(b) eর “Deputy Commissioner of Taxes” শb র পিরবেত “Assistant Commissioner of Taxes” শb

pিতsািপত হiেব, eবং

(খ) sub-section (2) eর পর িনm প Explanation সিnেবিশত হiেব, যথাঃ“ Explanation. — For the purpose of this section, 'electronic records and systems' include data, record or data generated, image or sound stored, received or sent in an electronic form or film or micro film or computer generated micro fiche and also include an electronic device."

47 । Ordinance No. XXXVI of 1984 eর section 152II eর সিnেবশন । uk Ordinance eর section 152I eর পর িনm প section 152II সিnেবিশত হiেব, যথাঃ "152II. Stay of proceeding in case of pending appeal or reference at Appellate Tribunal or High Court Division. — Where an assessee has filed an application for ADR for any income year and for the same income year, the Deputy Commissioner of Taxes has filed an appeal before the Appellate Tribunal or the Commissioner has made a reference before the High Court Division and no decision has been made in that respect by the Appellate Tribunal or High Court Division as the case may be, the proceeding of such appeal or reference shall remain stayed till disposal of the application for ADR. "। 48 । Ordinance No. XXXVI of 1984 eর section 152 eর সংেশাধন। uk Ordinance eর section 152K eর “Facilitator and determine his” eর শb িলর পর “fees” শb o কমা সিnেবিশত হiেব । 49 । Ordinance No. XXXVI of 1984 eর section 152N eর সংেশাধন। uk Ordinance eর section 152N eর sub-section (2) eর “fifteen days” শb িলর পিরবেত "five working days" শb িল pিতsািপত হiেব । 50 । Ordinance No. XXXVI of 1984 eর section 152O eর সংেশাধন। uk Ordinance eর section 152O eর sub-section (8) eর “one month” শb িলর পিরবেত "two months" শb িল pিতsািপত হiেব । 51 । Ordinance No. XXXVI of 1984 eর section 153 eর সংেশাধন। uk Ordinance eর section 153 eর sub-section (3) eর পর িনm প নুতন sub-section (4) সিnেবিশত হiেব, যথাঃ"(4) No appeal shall lie against any order of assessment under this section, unless the assessee has paid ten percent of the tax as determined by the Deputy Commissioner of Taxes where return of income was not filed in accordance with the provisions of this Ordinance."

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52 । Ordinance No. XXXVI of 1984 eর section 178 eর সংেশাধন। uk Ordinance eর section 178 eর sub-section (1) eর পিরবেত িনm প নুতন sub-section (1) pিতsািপত হiেব , যথাঃ"(1) A notice, an assessment order, a form of computation of tax or refund, or any other document may be served on the person named therein either by registered post or in the manner provided for service of a summons issued by a Court under the Code of Civil Procedure, 1908 (Act V of 1908): Provided that where a notice, an assessment order, a form of computation of tax or refund, or any other document is receive by an authorized representative as referred to in section 174, such receipt by the authorized representative, shall be construed as valid service on that person.”

53 । Ordinance No. XXXVI of 1984 eর section 184A eর সংেশাধন। uk Ordinance eর section 184A eর – (ক)

clause (b) eর “Paurashava” শb র পর “of a divisional headquarters” শb িল িবলুp হiেব, eবং

(খ)

clause (s) eর pাnঃিsত ফুলsপ (.) eর পিরবেত সিমেকালন (;)pিতsািপত হiেব eবং aতঃপর িনm প নূতন দুi

clauses যথাkেম (t) eবং (u) সংেযািজত হiেব,

যথাঃ"(t)

issuance or renewal of survey certificate of a water vessel including launch, steamer, fishing trawler, cargo, coaster and dump-burge etc., plying for hire:

(u)

registration or renewal of certificate as agent of an insurance company. "

54 । Ordinance No. XXXVI of 1984 eর section 184BBBB eর mwbœ‡ekb । uk Ordinance eর section 184BBB eর পর িনm প নূতন section 184BBBB সিnেবিশত হiেব, যথাঃ"184BBBB. Issuance of Temporary Registration Number (TRN). — Temporary Registration Number (TRN) may be given to a person who has been found having taxable income in any year and has failed to apply for Tax-payer's Identification Number (TIN) under section 184B. " 55। Ordinance No. XXXVI of 1984 eর FOURTH SCHEDULE eর সংেশাধন। uk Ordinance eর FOURTH SCHEDULE eর (ক)

Paragraph 6 eর sub-paragraph (1) eর “Insurance Act, 1938 (IV of 1938)” শb িল, কমা, সংখ া িল, বণ িল o বnনী িলর পিরবেত “বীমা আiন, 2010 (2010 সেনর 13 নং আiন) (Insurance Act, 2010) (Act No.13 of 2010)” শb িল , কমা, সংখ া িল, o বnনী িল pিতsািপত হiেব, eবং

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paragraph 9 eর clause (c) eর “2 (II) of the Instrument Act, 1938 (IV of 1938)” শb িল, সংখ া িল, বণ িল o বnনী িলর পিরবেত “5(2) of বীমা আiন, 2010 (2010 সেনর 13 নং আiন) শb িল, সংখ া িল, বণ িল o বnনী িল pিতsািপত হiেব ।

56। Ordinance No. XXXVI of 1984 eর SIXTH SCHEDULE eর সংেশাধন।-uk Ordinance eর SIXTH SCHEDULE eর – (ক) PART A eর(a)

paragraph 6 eর “an approved superannuation fund” শb িলর পর "or pension fund" শb িল সিnেবিশত হiেব,

(আ)

িবলুp paragraph 11 eর পর িনm প paragraph 11A সিnেবিশত হiেব, যথাঃ" 11 A. Income from dividend amounting to five thousand taka.”;

(i)

paragraph 33 eর ‘2013” সংখ া িলর পিরবেত ‘2015’ সংখ া িল pিতsািপত হiেব;

(ঈ)

paragraph 43 eর পর িনm প নূতন paragraphs যথাkেম 44,45,46 o 47 সংেযািজত হiেব, যথাঃ"44. An amount of income derived from cinema hall or Cineplex which starts commercial exhibition between the first day of July, 2012 and thirtieth day of June. 2015 for the period, and at the rate specified below: if it is set-up in — (i)

Dhaka or Chittagong divisions (excluding Rangamati, Bandarban and Khagrachari districts) for a period of five years beginning with the month of commencement of commercial exhibition: Period of Exemption

Rate of Exemption

For the first two years (first and second year)

100% of income

For the next two years (third and fourth year)

50% of income

For the next one year (fifth year)

25% of income

(ii)

Rajshahi, Khulna, Sylhet and Barisal divisions and Rangamati, Bandarban and Khagrachari districts for a period of seven years beginning with the month of commencement of commercial exhibition:

Period of Exemption

Rate of Exemption

For the first three years (first, second and third year)

100% of income

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For the next three years (fourth, fifth and sixth year)

50% of income

For the next one year (seventh year)

25% of income

45. An amount of income derived by an industrial undertaking engaged in the production of rice bran oil and commencing commercial production by thirtieth day of June, 2015, and at the rate specified below: if the said undertaking is set-up in— (i) Dhaka or Chittagong divisions (excluding Rangamati, Bandarban and Khagrachari districts) for a period of live years beginning with the month of commencement of commercial production: Period of Exemption

Rate of Exemption

For the first two years (first and second year)

100% of income

For the next two years (third and fourth year)

50% of income

For the next one year (filth year)

25% of income

ii) Rajshahi, Khulna. Sylhet and Barisal divisions and Rangamati, Bandarban and Khagracha districts for a period of seven years beginning with the month of commencement of commercial production: Period of Exemption

Rate of Exemption

For the first three years (first, second and third year)

100% of income

For the next three years (fourth, fifth and sixth year)

50% of income

For the next one year (seventh year)

25% of income

46. An amount equal to fifty percent of the income of an assessee derived from the production of corn/maize or sugar beet; 47. Income of an assessee donated in an income year to any fund established by or under the provisions of pধানমntীর িশkা সহায়তা াs আiন , 2012 (2012 সেনর 15 নং আiন) (Trust of Prime Minister's Education Assistance Act, 2012) (Act No. 1 5 of 2012) subject to a maximum of— (a) twenty percent (20%) of income of a company or taka eight crore, whichever is less; (b) twenty percent (20%) of income of an assessee other than a company or one crore taka, whichever is less." । (খ) PART B এর –

I LNJ (2012)

Bangladesh Statutes

115

(অ) Paragraph 11 এর “scheduled bank” শb িলর পর “or a financial institution” শb িল সংেযািজত হiেব; eবং (আ) paragaph 26 িবলুp হiেব।

57। আয়কর। (1) uপ-ধারা (3) eর িবধানবলী সােপেk , 2012 সােলর 1 জুলাi তািরেখ আরb কর বৎসেরর জন কান কর িনরধারেনর kেe ei আiেনর তফিসল-2 e িনিদs কর হার aনুযায়ী আয়কর ধায হiেব । (2) য সকল kেe Income-tax Ordinance, 1984 (Ord. No. XXXVI of 1984) eর SECOND SCHEDULE (লটারী আয় msµvš—) pেযাজ হiেব স সকল

kেe আেরাপনেযাগ কর uk

SCHEDULE aনুসােরi ধায করা হiেব, িকn কেরর হার wba©vi‡bi kেe uপ-ধারা (1) eর িবধান pেয়াগ কিরেত হiেব । (3) Income-tax Ordinance, 1984 (Ord. No. XXXVI of 1984) eর Chapter VII aনুসাের কর কতেনর িনিমt তফিসল-2 e (আয়কর হার msµvš—) বিণত হার 2012 সােলর 1 জুলাi তািরেখ আরb eবং 2013 সােলর 30 জুন তািরেখ সমাপ বrসেরর জন pেযাজ হiেব । (4) ei ধারার eবং ei ধারার aধীন আেরািপত আয়কর হােরর uেdেশ ব াব ত “ মাট আয় (total income)” বিলেত Income-tax Ordinance, 1984 (Ord. No. XXXVI of 1984) eর িবধান aনুসাের িন িপত মাট আয় (total income) বুঝাiেব। 58। সারচাজ । Income-tax Ordinance, 1984 (Ord. No. XXXVI of 1984) eর আoতায় 2012 সােলর 1 জুলাi হiেত আরb কর বrসেরর জন কান কর িনধারেণর kেe তফিসল-2 eর িdতীয় aংেশ িনিদ হার aনুযায়ী সারচাজ ধায হiেব । প ম aধ ায় মূল সংেযাজন কর আiন , 1991 (1991 সেনর 22 নং আiন) eর সংেশাধন 59। 1991 সেনর 22 নং আiেনর ধারা 3 eর সংেশাধন । মূল সংেযাজন কর আiন , 1991 (1991 সেনর 22 নং আiন), aতঃপর uk আiন বিলয়া uিlিখত, eর ধারা 3 eর uপ-ধারা (1) e uিlিখত “ সবাসমূহ ব তীত” শb িলর পর “বাংলােদেশ আমদািনকৃত বা ” শb িল সিnেবিশত হiেব। 60। 1991 সেনর 22 নং আiেনর ধারা 6 eর সংেশাধন । uk আiেনর ধারা 6 eর uপধারা (4গ) িবলুp হiেব। 61। 1991 সেনর 22 নং আiেনর ধারা 8 eর সংেশাধন । uk আiেনর ধারা 8 eর uপধারা (1) eর পিরবেত িনm প uপ-ধারা (1) o (1ক) pিতsািপত হiেব, যথাঃ-

116

Bangladesh Statutes

I LNJ (2012)

“(1) করেযাগ পেণ র psতকারক বা uৎপাদক বা ব বসায়ী বা করেযাগ সবা pদানকারী কান ব িk, যাহার ধারা 15 eর aধীন িনবিnত হoয়ার বাধ বাধকতা নাi িতিন তাহার বািষক টাণoভার কর pদান কিরেবন। (1ক) ধারা 6 eর uপধারা (4) eর aধীন আমদািন পযােয় aিgম মূল সংেযাজন কর আদােয়র kেt uপ-ধারা (1) eর িবধান pেযাজ হiেব না। 62| 1991 m‡bi 22 bs AvB‡bi aviv 9 Gi ms‡kvab |- Dk AvB‡bi aviv 9 Gi Dc-aviv (1) Gi(K) `dv (T) Gi cwie‡Z© wbæiƒc `dv (T) cÖwZ¯’vwcZ nB‡e, h_vtÒ(T) c‡Y¨i mieivnKvix, e¨emvqx ev †mev cÖ`vbKvix Ges †µZvi wbeÜb msL¨v e¨ZxZ Ab¨ †Kvb wbeÜb msL¨v m¤^wjZ wej Ae Gw›Uª ev Pvjvbc‡Î Dwj wLZ DcKiY Kit Z‡e kZ© _v‡K †h evsjv‡`‡ki †fŠ‡MvwjK mxgv‡iLvi evwni nB‡Z †mev MÖn‡bi †¶‡Î cÖ‡hvR¨ g~j¨ ms‡hvRb Ki †mev MÖnYKvix KZ©…K cb¨ ev †mev mieivn g~j¨ ev cY¨ g~j¨ †NvlYvq Aš—f©z³_vKv I miKvix †UªRvix‡Z D³ g~j¨ ms‡hvRb Ki cwi‡kv‡ai cÖgvYcÎ _vKv mv‡c‡¶ †iqvZ MÖnY Kiv hvB‡e;"|

63| 1991 m‡bi 22 bs AvB‡b b~Zb aviv 19K Gi mwbœ‡ek |- D³ AvB‡b aviv 19Gi ci wbæi“c b~Zb aviv 19K mwbœ‡ewkZ nB‡e, h_v t"19K| wbeÜb e¨ZxZ †UÛv‡i AskMÖn‡b wewa-wb‡la, BZ¨vw` |- wbeÜb e¨wZZ †Kvb e¨w³ †Kvb †UÛv‡i AskMÖnb Kwi‡Z cvwi‡eb bv ev Zvnvi AbyK‚‡j †Kvb Kvh©v‡`k cÖ`vb Kiv hvB‡e bv|"| 64| 1991 m‡bi 22 bs AvB‡bi aviv 20 Gi ms‡kvab|- Dk AvB‡bi aviv 20Gi Dc-aviv (1) Gi(K) we`¨gvb `dv (K) I (KK), h_vµ‡g, `dv (KK) I (KKK) wnmv‡e cybmsL¨vwqZ nB‡e Ges cybmsL¨vwqZ `dv (KK) Gi c~‡e© wbæiƒc `dv (K) ms‡hvwhZ nB‡e, h_v t"(K) m`m¨, g~j¨ ms‡hvRb Ki;"; (L) `dv (P) I (Q) Gi cwie‡Z© wbæi“c `dv (P) I (Q) cÖwZ¯’vwcZ nB‡e, h_vt"(P) AwZwi³ Kwgkbvi, AwZwi³ gnvcwiPvjK ev cwiPvjK (wmAvBwm), g~j¨ ms‡hvRb Ki; (Q) hyM¥-Kwgkbvi, hyM¥-cwiPvjK (wmAvBwm), g~j¨ ms‡hvRb Ki;"| 65| 1991 m‡bi 22 AvB‡bi aviv 22Gi ms‡kvab |- Dk AvB‡bi aviv 22 Dc-aviv (1) Gi cwie‡Z© wbæiƒc Dcaviv (1) cÖwZ¯’vwcZ nB‡e, h_vtÒ(1) †evW©, miKvwi †M‡R‡U cÖÁvcb Øviv, cÖÁvc‡b DwjwLZ cwimxgv I kZ©vewj, hw` _v‡K mv‡c‡¶, bvg ev c`we D‡j Lc~eK © -(K) †h †Kvb Kwgkbvi ev gnvcwiPvjK, g~j¨ ms‡hvRb Ki‡K GB AvBb ev wewai Awab Pxd Kwgkbvi, g~j¨ ms‡hvRb Ki,

I LNJ (2012)

Bangladesh Statutes

117

(L) †h †Kvb AwZwi³ Kwgkbvi ev AwZwi³ gnvcwiPvjK ev cwiPvjK(wmAvBwm), g~j¨ ms‡hvRb Ki‡K GB AvBb ev wewai Aaxb Kwgkbvi, Kwgkbvi(Avcxj) ev gnvcwiPvjK, g~j¨ ms‡hvRb Ki, (M) †h †Kvb hyM¥- Kwgkbvi ev hyM¥-cwiPvjK(wmAvBwm) ev cwiPvjK, g~j¨ ms‡hvRb Ki‡K GB AvBb ev wewai Aaxb AwZwi³ Kwgkbvi, AwZwi³ gnvcwiPvjK ev cwiPvjK(wmAvBwm), g~j¨ ms‡hvRb Ki, ev Kwgkbvi, Kwgkbvi(Avcxj) ev gnvcwiPvjK, g~j¨ ms‡hvRb Ki, (N) †h †Kvb Dc- Kwgkbvi ev Dc-cwiPvjK, g~j¨ ms‡hvRb Ki‡K GB AvBb ev wewai Aaxb hyM¥- Kwgkbvi, hyM¥-cwiPvjK(wmAvBwm) ev cwiPvjK, g~j¨ ms‡hvRb Ki, ev AwZwi³ Kwgkbvi, AwZwik gnvcwiPvjK ev cwiPvjK(wmAvBwm), g~j¨ ms‡hvRb Ki, (O) †h †Kvb mnKvix Kwgkbvi ev mnKvix cwiPvjK, g~j¨ ms‡hvRb Ki‡K GB AvBb ev wewai Aaxb DcKwgkbvi ev Dc-cwiPvjK, g~j¨ ms‡hvRb Ki, (P) Ab¨ †h †Kvb g~j¨ ms‡hvRb Ki Kg©KZ©v‡K GB AvBb ev wewai Aaxb mnKvix Kwgkbvi ev mnKvix cwiPvjK, g~j¨ ms‡hvRb Ki, Gi †h †Kvb ¶gZv cÖ‡qv‡Mi AwaKvi Ac©Y Kwi‡Z cvwi‡e| 66| 1991 m‡bi 22 bs AvB‡bi aviv 24 Gi ms‡kvab |- D³ AvB‡bi aviv 24 Dc-aviv (1) G DwjwLZ ÒwmwU K‡c©v‡ikb Gi KZ©…c¶Ó kã¸wj I Kgv mwbœ‡ewkZ nB‡e