January 2013

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

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HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION)

binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are Sharif Uddin } Md. Abu Taher perverse being contrary to law or based on Chaklader, J. ...Petitioner. non-consideration or misreading or non} And } Vs. reading of the material evidence affecting Md. Badrzzaman, J. } Md. Jashim Uddin the merit of the case.

Judgment and another Feroza Majid vs. JB Corporation reported in 21.06.2012 } ...Opposite Parties. 39 DLR (AD) 78, Jainal Abedin Molla Vs. Atiar Rahman reported in 1983 BLD(AD) 105, Ram Chandra Das Vs. Md. Khalilur Rahman Evidence Act (I of 1872) and another reported in 37 DLR(AD) 21, Section 92 Abdul Alim Akondo Vs. Government of Oral evidence led on behalf of defendant No.1, the vendor has been corroborated by Bangladesh and others reported in 16 MLR two other witnesses. Evidence of these three (AD) 417 and Abdul Gagfur Vs. Md. Abdur witnesses including the vendor is not Razzak reported in 62 DLR (AD) 242, ref. admissible so far as it aims at contradicting Mr. Mohammad Ali Azzam, Advocate or varying the terms of the document in the --For the petitioner. light of the provisions of section 92 of the Evidence Act. As per above observations Mr. M. M. Haque Siddique (Rana), Adv. --- For the opposite party No.1. and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not Judgment an agreement for loan or mortgage deed.

Specific Relief Act ( I of 1877) Section 12 Plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance consideration money within the stipulated period, there being no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance cannot fail.

Code of Criminal Procedure (V of 1908) Section 115 (I) The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are Civil Revision No. 1983 of 2010.

Md. Badruzzaman, J. This Rule, at the instance of the defendant No. 1- appellant, directed against judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in Other Class Suit No. 19 of 2003 decreeing the suit.

2. The opposite party No.1 as plaintiff instituted the above suit for specific performance of contract in respect of the suit shop along with 2.50 decimal land as described in the schedule to the plaint. The case of plaintiff is that defendant No.1 in need of money for carrying out business, executed a bainapatra on 16.11.2002 in favour of plaintiff

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

for selling the suit shop along with 2.50 decimal land for a total consideration of Tk. 5,00,000/- and received Tk. 3,00,000/- as earnest money out of the total consideration. It was stipulated in bainapatra that defendant would execute and register the relevant sale deed in favour of plaintiff if he would pay the balance of the consideration money within three months from the date of execution of the bainapatra and it was also stipulated in bainapatra that if defendant be able to return the said Tk. 3,00,000/- with compensation to plaintiff within that period of three months bainapatra would stand cancelled . As per the terms of said bainapatra defendant failed to return the said amount of Tk. 3,00,000/- with compensation within the said stipulated period and thereafter plaintiff on 20.2.2003 requested defendant No.1 to execute and register the relevant deed of sale in presence of Moijuddin and Abu Taher on receiving the balance of the consideration but defendant refused to execute and register the deed of sale in favour of plaintiff in pursuant to the aforesaid bainapatra and hence the suit.

3. Defendant No. 1, petitioner contested the suit by filing a written statement denying all the material facts as stated in the plaint. His case, in brief, is that, plaintiff is a money lender. He lends money to others by receiving high rate of interest. Defendant rented the shops to different persons by erecting a half building on the suit land. Defendant, being in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to plaintiff and plaintiff demanded Tk. 8,000/- as interest per month and accordingly defendant No. 1 took a loan amounting to Tk. 3,00,000/- from plaintiff with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to plaintiff. Defendant thereafter executed an

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agreement in favour of plaintiff with that regard but he was unable to read the contents of the agreement at the time of execution as he was in dire need of money. Defendant paid interest to plaintiff at the rate of Tk. 8,000/per month. He also returned the loan amount of Tk. 3,00,000/- to plaintiff on 16.2.2003 in presence of witnesses but at the time of returning the loan amount plaintiff did not return the said agreement with a plea that he could not trace out the agreement and he agreed that he would return the same as and when he could trace it out. Plaintiff without returning the agreement filed the suit with a malafide intention and in breach of trust and as such the suit is liable to be dismissed with cost.

4. Both parties adduced oral evidence.

Alleged bainapatra has been produced by plaintiff and after formal proof it has been marked as exhibit-1. Trial Court upon consideration of the evidence on record decreed the suit by judgment and decree dated 9.4.2009. Being aggrieved and dissatisfied with aforesaid judgment and decree of trial Court defendant No.1 preferred Other Class Appeal No. 45 of 2009 in the Court of District Judge, Kishoregonj which, on transfer, was heard and disposed of by the learned Additional District Judge, 1st Court, Kishoregonj who, after hearing, disallowed the appeal by judgment and decree dated 2.5.2010 affirming those of the trial Court. Against the aforesaid judgment and decree of appellate Court instant revisional application was filed before this Court by defendant and the present Rule was issued.

5. Mr. Md. Ali Azzam, learned Advocate appearing on behalf of defendant-appellantpetitioner, placed the revisional application, impugned judgments of the Courts below and other materials on record and submits that both

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

the courts below committed a serious error of law in decreeing the suit against the weight of the evidence. He further submits that the courts below failed to consider that defendantpetitioner did not enter into any agreement for sale or bainapatra in respect of the suit shop with plaintiff-opposite party and that defendantpetitioner took a loan amounting to Tk. 3,00,000/- with an interest at the rate of Tk. 8,000/- per month from plaintiff-opposite party and signed a document on that regard but plaintiff collusively made a bainapatra instead of an agreement for loan, keeping defendantpetitioner in a dark. He further submits that plaintiff failed to discharge his onus to prove the alleged bainapatra and both the courts below erred in law resulting in an error in the decision occasioning failure of justice in decreeing the suit and as such the judgment and decree passed by the courts below are liable to be set aside.

6. Mr. M.M. Haque Siddique (Rana), learned Advocate appearing on behalf of plaintiff-opposite party No.1, on the other hand, submits that the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. He further submits that the suit being a suit for specific performance of contract, the courts below having found that the contract is valid have rightly decreed the suit and no error of law has been committed.

7. Learned Advocate for the opposite party by referring to exhibit-1, the alleged bainapatra, submits that as per stipulation of the bainapatra plaintiff offered the balance of the consideration money to defendant in presence of the witnesses and requested the

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defendant to execute and register the relevant deed of sale and as the defendant refused, the plaintiff has been constrained to institute the suit for specific performance of contract.

8. Lastly, the learned Advocate submits that both the trial Court and appellate Court have come to the specific conclusion that defendant has not been able to prove that the amount of Tk. 3,00,000/-which was admittedly received by defendant from plaintiff was a loan and he returned the said loan amount of Tk. 3,00,000/with interest to plaintiff by adducing sufficient evidence. This finding of fact being based on proper appreciation of evidence can not be interfered with by this Court in revisional jurisdiction and prays for discharging the Rule.

9. We have heard the learned Advocates of both the parties at length and have also gone through the records of the case in minute particulars.

10. On the pleadings of the parties and the evidence led by them following questions calls for determination. At first, whether Ext. 1 is a bainapatra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra, and next, whether the amount of Tk. 3,00,000/- admittedly received by defendant from plaintiff was returned by defendant to plaintiff and lastly whether plaintiff has been able to prove his case and is entitled to get a decree for specific performance of contract or to enforce the said contract.

11. The first question for consideration is whether Ext. 1 is a bainapatra or a loan agreement and whether plaintiff has been able to prove Ext. 1 as bainapatra.

12. The contention of plaintiff is that he paid Tk. 3,00,000/- on 16.11.2002 to defendant No.1 as earnest money out of Tk. 5,00,000/-, which was the consideration money and defendant No.1 entered into an agreement for

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

sale of the suit shop along with 2.50 decimal land to plaintiff. As defendant No.1 did not execute and register the kabala in question plaintiff filed the suit for specific performance of contract. To prove the said contention plaintiff examined three witnesses and formally proved bainapatra which has been marked as exhibit-1 and it is found by the trial Court that by oral evidence plaintiff has been able to prove that defendant No.1 has entered into an agreement for sale with plaintiff in respect of the suit property after receiving Tk. 3,00,000/as earnest money out of total consideration of Tk. 5,00,000/- in presence of the witnesses.

The court also found that P.W. 1, plaintiff himself supported the plaint case by oral evidence. P.W.3 has also supported the plaint case that defendant No.1 executed a bainapatra in favour of plaintiff on receiving Tk. 3,00,000/- as earnest money by cheque from plaintiff and he was present at the time of execution of bainapatra and defendant No.1 put his signature to the bainapatra after knowing the contents of bainapatra. He is a witness to the bainapatra. He stated that the baina money was paid to defendant in his presence and he also put his signature in the bainapatra. P.W.2 has also supported the case of plaintiff. Defendant in his deposition admitted his signature in the written bainapatra as the executant, which was categorically supported by other witnesses. Trial Court also found that defendant No. 1 could not able to prove that he had taken a loan of Tk. 3,00,000/from plaintiff and signed the agreement for loan without going through the contents thereof and he was unable to read the contents of the agreement as he was in dire need of money by adducing sufficient evidence. Appellate Court after discussing the evidence on record upheld all these findings of fact as arrived at by trial Court and both the trial Court and the lower

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appellate Court concurrently found that the exhibit-1 is a bainapatra.

13. In the case of Feroza Majid vs. JB Corporation reported in 39 DLR (AD) 78, their Lordships held that “oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible under section 92 of the Evidence Act”. In that case it was also held that “Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Section 92 of the Evidence Act which is in fact the continuation of section 91, prohibits the consideration of any oral or extraneous evidence to contradict the terms of an instrument when it is proved under section 91, subject, of course, to certain exceptions. There is uniformity of the judicial authorities on the question of exclusion of oral evidence by documentary evidence, and it is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto”. In the case of Jainal Abedin Molla Vs. Atiar Rahman reported in 1983 BLD(AD) 105 our apex Court also held that “no evidence is admissible to vary the contents of the documents by any oral evidence”. Now let us see the document i.e Ext. 1 itself.

14. On the face of it, Ext. 1 is evidently executed by defendant No.1 for selling the suit shop on receiving Tk. 3,00,000/- as earnest money out of the total consideration of Tk. 5,00,000/-. It also contains a recital that the vendor i.e defendant No. 1 will execute and register the relevant deed of sale if the vendee i.e plaintiff pay the balance of the consideration money within three months. Contention of the

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

vendor was that he in need of money for sending his son and nephew abroad, approached for a loan amounting to Tk. 3,00,000/- to the vendee and the vendee demanded Tk. 8,000/- as interest per month and he took a loan amounting to Tk. 3,00,000/- from the vendee with an interest at the rate of Tk. 8,000/- per month and also mortgaged the suit shop to the vendee. The vendor thereafter executed an agreement in favour of the vendee with that regard but he was unable to read the contents of the agreement as he was in dire need of money. But nothing of this sort was mentioned anywhere in the deed, Ext. 1, and this claim is entirely rested upon oral evidence of the vendor. Oral evidence led on behalf of defendant No.1, the vendor has been corroborated by two other witnesses. Evidence of these three witnesses including the vendor is not admissible so far as it aims at contradicting or varying the terms of the document in the light of the provisions of section 92 of the of the Evidence Act. As per above observations and considering the facts of the case it can safely be held that Ext. 1 is a bainapatra, not an agreement for loan or mortgage deed.

15. Next question for consideration is whether the amount of Tk. 3,00,000/admittedly received by defendant from plaintiff was returned by defendant to plaintiff.

16. The contention of defendant is that he took Tk. 3,00,000/- as loan from the plaintiff with an interest at the rate of Tk. 8,000/- per month and he signed an agreement for loan and mortgaged the suit shop to plaintiff and he also returned the said loan with interest to plaintiff on 16.2.2003. In support of his claim defendant No.1 examined three witnesses out of which D.W.3 was declared hostile. Both the courts below after proper appreciation of the evidence on record concurrently found that the oral witnesses of defendant were not able to prove the said claim of defendant and also defendant had not been able to produce any paper to show that he returned Tk. 3,00,000/with interest to plaintiff. We do not find any

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illegality in the above observation of the Courts below.

17. The last question for consideration is whether plaintiff has been able to prove his case and is entitled to get a decree for specific performance of contract or to enforce the said contract.

18. Learned Advocate for the petitioner by an alternative argument submits that even if defendant admits the bainapatra then also plaintiff will not get decree for specific performance of contract as time was the essence of the contract in as much as plaintiff had not been able to pay the balance of the consideration money within 3(three) months from the date of execution of bainapatra as stipulated in it.

19. In reply to this contention, learned Advocate for the opposite party by referring exhibit-1, bainapatra, submits that time was not the essence of the contract in as much as though there was a condition in the bainapatra to the effect that if plaintiff is able to pay the balance of the consideration money within three months, defendant will execute and register the relevant sale deed, but there was another condition that if vendor-defendant is able to refund the earnest money of Tk. 3,00,000/- with compensation to vendeeplaintiff within that period, the bainapatra shall stand cancel. He further submits that as per the aforesaid stipulation plaintiff had to wait for the said period of three months to enable defendant to refund the earnest money within that period and after the expiry of the said three months on 16.2.2003, plaintiff offered the balance of the consideration money on 20.2.2003 to defendant in presence of the witnesses and requested defendant to execute and register the relevant deed of sale and being refused by defendant, plaintiff was constrained to institute the suit for specific performance of contract and as such he is entitled to get decree for specific performance of contract.

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

20. On a look into exhibit-1, bainapatra we have found some conditions therein which is quoted verbatim below: “h¡ue¡ h¡c hH²£ V¡L¡ Bj¡−L BN¡j£ 03 j¡−pl j−dÉ f¢l−n¡d Llax Bfe¡l LJm¡ pÇf¡ce J ®l¢SÖVÊ¡l£ L¢lu¡ ¢e−hez E−õMÉ k¢c EJ² 3 j¡−pl j−dÉ Bfe¡l h¡ue¡ fËcš E−õ¢Ma 300000/- ¢ae mr V¡L¡ r¢af§lZ pq −gla fËc¡−e pjaÑ qC a−h h¡ue¡ fœ h¡¢am h−m NZÉ qC−hz Bl k¢c EJ² ®ju¡−cl j−dÉ EJ² V¡L¡ r¢af§lZ pq ®gla c¡−e pjaÑ e¡ qC a−h Aœ h¡ue¡ fœ hmhv b¡¢L−h Hhw Ah¢nÖV V¡L¡ Bj¡−L f¢l−n¡d Llax Bfe¡l LJm¡ hq¡m L¢lu¡ AbÑ¡v pÇf¡ce J ®l¢SÖVÊ¡l£ L¢lu¡ ¢e−hez” 21. On perusal of the conditions as quoted above it is clear that plaintiff had an obligation to pay the balance of the consideration money to defendant within 3 (three) months from the date of execution of bainapatra dated 16.11.2002 but that condition depends upon the next condition wherein it was stipulated that if defendant is able to return the earnest money with compensation to plaintiff within that period, the bainapatra would stand cancelled and if defendant is failed to return the said money with compensation within that period the bainapatra would remain as it was without mentioning any time limit for plaintiff to pay the balance of the consideration money. So as per the above conditions plaintiff had no other option other than to wait for a period of three months i.e up to 16.2.2003. So in our view time was not the essence of the contract on the part of plaintiff. This view finds support in the case of Ram Chandra Das Vs. Md. Khalilur Rahman and another reported in 37 DLR(AD) 21 where it was observed that “when time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed. It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led

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to the non performance of the contract. In a suit for specific performance of contract, plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved”.

22. It appears that both the courts below after elaborate discussions of the evidence on record concurrently found that after the expiry of the period of three months on 16.2.2003, plaintiff offered the balance of the consideration money on 20.2.2003 to defendant in presence of the witnesses and requested the defendant to execute and register the relevant deed of sale in favour of plaintiff and defendant failed to perform his obligation. So it can be said that plaintiff has successfully proved that he fulfilled his obligations and was very much willing and ready to get the kabala from defendant after payment of the balance of the consideration money within the stipulated period, there being no controversy regarding the failure of defendant-petitioner to perform his obligations within period allocated to him, the suit for specific performance can not fail.

23. At last learned Advocate for the defendant-petitioner submits that both the courts below committed a serious error of law in decreeing the suit against the weight of the evidence and upon non- consideration and misreading of evidence and thus committed an error of law in the decision occasioning failure of justice.

24. In reply to the said argument of learned Advocate for petitioner, learned Advocate for plaintiff-opposite party No.1 submits that in the instant case the findings of fact arrived at by the courts below are concurrent and the same are based on proper appreciation of evidences on record. That being so the High Court Division in revision can not upset the concurrent findings of fact arrived at by the courts below. Let us see the legal aspect of the point raised by the learned Advocate of both the parties.

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Md. Abu Taher Vs. Md. Jashim Uddin and another, (Md. Badruzzaman, J.)

25. We have already noticed that both the courts below after discussions of the materials on record as well as evidence of both the parties arrived at a common finding that plaintiff has been able to prove the bainapatra for valuable consideration and his willingness to pay the balance consideration in time as stipulated in the bainapatra. Learned Advocate for petitioner could not show from the record that the concurrent findings of the Courts below on this point based on misreading or non-reading or non-consideration of the evidence on record or misinterpretation of any material document. From the facts and circumstances of the case we find substance in the contention raised by the learned Advocate for plaintiff opposite party No.1 that the Courts below in the facts and circumstances of the case committed no illegality in decreeing the suit as prayed for. The trial Court and the lower appellate Court are the final Courts of fact. The suit having been concluded on concurrent finding of fact, it is very difficult to interfere with the findings of facts sitting under revisional jurisdiction as those are binding upon High Court Division as a revisional Court under section 115(1) of the Code of Civil Procedure, unless it is found that the concurrent findings of fact are perverse being contrary to law or based on non-consideration or misreading or non-reading of the material evidence affecting the merit of the case. This contention finds support in the case of Abdul Alim Akondo Vs. Government of Bangladesh and others reported in 16 MLR (AD) 417 where it has been observed that “the finding of fact of the final Court of fact on concurrent finding can not be disturbed by the revisional Court.” Similar observation has been made in the case of Abdul Gafur Vs. Md. Abdur Razzak reported in 62 DLR (AD) 242 where their Lordships held that “Courts below also concurrently found that the defendants have failed to prove their right, title, interest and possession in the suit lands by adducing oral and documentary evidence. This findings of

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fact are not immune from interference by the High Court Division in exercise of revisional jurisdiction in the absence of misreading or non-consideration of the evidence on record.

The learned judge of the High Court Division has exceed its jurisdiction in interfering with the concurrent findings of fact, which is liable to be interfered with.”

26. Judgment of the trial Court which was affirmed by the appellate Court, as we see, do not find that the judgments are tainted with legal infirmity or perversity justifying interference. We ourselves also examined the record of the case and in our view there are sufficient evidence and materials on record to come to the decisions which have been arrived at by the courts below. The judgments of the courts below thus, do not warrant any interference by us as the Courts below have not committed any error of law resulting in an error in the decision occasioning failure of justice.

27. In view of the discussions made above we hold that this civil revisional application is incompetent.

28. In the result, the Rule is discharged without any order as to costs. The judgment and decree dated 2.5.2010 passed by the learned Additional District Judge, 1st Court, Kishoregonj in Other Class Appeal No. 45 of 2009 disallowing the appeal and affirming the judgment and decree dated 9.4.2009 passed by the learned Joint District Judge, 1st Court, Kishoregonj in other Class Suit No. 19 of 2003 decreeing the suit is hereby maintained.

Order of stay granted at the time of issuance of Rule, which was extended time to time, stands vacated. Let a copy of the judgment along with the lower Courts record be sent down at once.

Ed.

2 LNJ (2013) Md. Hasanul Islam Hanif @ Galcuta Hanif and Hanif Vs. The State, (Md. Nazrul Islam Talukder, J.)

Mr. Kazi M. Ejarul Haque, D.A.G with Mr. Md Shafquat Hussain, A.A.G. ‌.For the respondents.

Judgment Md. Nazrul Islam Talukder, J: This Rule was issued on an application under section 561 A of the Code of Criminal Procedure calling upon the opposite party to show cause as to why the impugned judgment and order dated 6.5.2009 passed by the learned Metropolitan Special Tribunal No. 7, Dhaka in Metropolitan Special Tribunal Case No. 1468 of 2004 arising out of Kafrul police station Case No. 22 dated 9.9.2004 corresponding to G.R. No. 520 of 2004 convicting the petitioner under section 19-A and 19 (f) of the Arms Act, 1878 and sentencing him thereunder to suffer rigorous imprisonment for 10 years and 7 years respectively with a direction to run both the sentence concurrently should not be quashed and/ or pass such other or further order or orders as to this Court may seem fit and proper.

2. The prosecution case, in short, is that on 9.9.2004 the informant along with other D.B. personnel went on petrol duty at Bhashantek area on the basis of G.D. No. 622. While on duty, the informant and his companions got a secret informantion that an absconding accused of Kafrul police station Case No. 11(5) 2004 under sections 304/34 of the Penal Code was staying at his present address at 5/4 West Bhashantek. On getting aforesaid information, the informant and others started for the place of occurrence and reached there about 22.10 hours. Reaching the place of occurrence, the informant and others arrested the petitioner and carried out a search on his body in presence of local witnesses, namely, Abdul Karim, Md. Mazharul Sikder and Md. Israfil and recovered a revolver along with one round bullet from the right side of the waist of the petitioner. After

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that, the D.B. Police prepared a seizure list and took signature of the witnesses on it. On interrogation, the petitioner disclosed his name as Hasanul Islam Hanif alias Galcuta Hanif.

However, the petitioner could not show any valid paper for keeping the arms and bullet in his possession. Hence, the F.I.R was lodged against the petitioner under sections 19(A) and 19(f) of the Arms Act. 3.

The police produced the petitioner before the Court of learned Chief Metropolitan Magistrate who sent the petitioner to the custody on 10.9.2004. The police took up the case for investigation and recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. Having found prima-facie case, the police submitted charge sheet against the petitioner under sections 19(A) and 19(f) of the Arms Act on 23.9.2004. After submission of the charge sheet, the case was transferred to the learned Judge, Metropolitan Special Tribunal No.7, Dhaka who framed charge against the petitioner under sections 19(A) and 19(f) of the Arms Act. The charge was read over to the petitioner who pleaded not guilty and prayed to face trial in accordance with law.

4. The prosecution examined as many as 11 witnesses and on the other hand, the defence examined none. The case of the defence as it appears from the trend of cross-examination of the witnesses is that the alleged arms and bullets were not recovered from the exclusive control and possession of the petitioner. The petitioner was falsely implicated in this case at the instance of a witness, namely, Abdul Karim with whom he had previous enmity. The alleged arms and bullet were planted by the witness, namely, Abdul Karim in the house of petitioner though he had no knowledge about the same.

44 Md. Hasanul Islam Hanif @ Galcuta Hanif and Hanif Vs. The State, (Md. Nazrul Islam Talukder, J.) 2 LNJ (2013)

5. The learned Judge of the Tribunal found the petitioner guilty under sections 19(A) and 19(f) of the Arms Act and sentenced him thereunder to suffer rigorous imprisonment for 10 years and 7 years respectively with a direction to run both the sentences concurrently.

6. Though the impugned judgment and order was appealable, the petitioner could not prefer criminal appeal before this Court for lack of legal advice as no Advocate was engaged on behalf of the petitioner to conduct the trial of the case. However, after expiry of the stipulated period of preferring appeal, the petitioner has come before this Court under section 561A of the Code of Criminal Procedure and obtained this Rule.

7. Mr. A.B.M. Waliur Rahman Khan, learned Advocate appearing for the petitioner, submits that the impugned conviction and sentence awarded by the Tribunal is not based no legal evidence and that the prosecution could not prove the case by adducing reliable and satisfactory evidence. He next submits that no seizure list witnesses in whose presence the arms and bullet were recovered were examined to prove the alleged recovery of arms and bullet from the exclusive control and possession of the petitioner and that the evidence given by police personnel was not supported and corroborated by independent witnesses. In support of his contention, he relied upon the decisions in the cases of Zillur Rahman alias Zillur Vs. The State, 6 BLC(2001)(HCD) 254, Aslam Jahangir Vs. The State, 5 BLC(2000) (HCD) 514 and Habibur Rahman alias Jane Alam Vs. The State, 47 DLR (1995)HCD) 323. He lastly submits that since the vital witnesses like the seizure list witnesses and other local witnesses were not produced and examined before the Court, non-examination of those vital witnesses renders the whole prosecution case doubtful and as such the impugned conviction and sentence should be quashed.

8. On the other hand, Mr. Kazi M. Ejarul Haque, learned Deputy Attorney General along with Mr. Md. Shafquat Hussain, learned Assistant Attorney General appearing for the State, submits that there is sufficient evidence on the record of the case to connect the petitioner with the offence and that prosecution examined as many as 7 witnesses who proved recovery of arms and bullet from the exclusive control and possession of the petitioner.

Referring to section 134 of the Evidence Act, he next submits that no particular number of witnesses shall, in any case, be required for the proof of any fact. He lastly submits that that the evidence of police personnel should not be discarded simply because they belong to police force and that their evidence is also legal evidence within the meaning of section 3 of the Evidence Act. In support of his contention, he relied upon the decision in the case of Mohiuddin Vs. The State, 61 DLR (2009) (HCD) 35. In view of above facts and circumstances the Rule may be discharged.

9. We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto.

We have also considered the submissions made by the learned Advocates for both the sides. It appears from the prosecution story that the D.B. police personnel arrested the petitioner form the place of occurrence and recovered a revolver with one round bullet from the waist of the petitioner. The police prepared a seizure list and took signature of 3 seizure list witnesses, namely, Abdul Karim, Md. Mozharul Sikder and Md. Israfil. The prosecution examined as many as 7 witnesses to prove its case but none of the seizure list witnesses was produced and examined to prove the recovery of arms and bullet from the exclusive control and possession of the petitioner. Admittedly all the 7 prosecution witnesses are police personnel who gave evidence in support of the prosecution case to

2 LNJ (2013) Md. Hasanul Islam Hanif @ Galcuta Hanif and Hanif Vs. The State, (Md. Nazrul Islam Talukder, J.)

prove the recovery of arms and bullet from the exclusive control and possession of the petitioner but that evidence was not supported and corroborated either by seizure list witnesses or by public witnesses in whose presence the arms and bullet were recovered .

It is true that in view of section 134 of the Evidence Act, conviction can be based on the testimony of a solitary witness and it is not necessary to seek corroboration always from independent sources but in the instant case, neither the seizure list witnesses nor the public witnesses were produced and examined before the Tribunal to prove the recovery of the Arms and bullet from the control and possession of the petitioner. Besides, the Prosecution also remained silent on non-examination of aforesaid important and vital witnesses before the Tribunal. In the case of Abdul Haider Sikder and another Vs. The State, 43 DLR (AD)(1991) 95, it has been held that ‘conviction of the appellants can safely be based on the solitary evidence of eye witness, P.W.1’. It appears from paragraph No.6 of that judgment that three local witnesses were examined by the prosecution but none of them supported and corroborated the prosecution case. As for the present case, it appears that neither the seizure list witnesses nor the local witnesses were examined by the prosecution.

In the context of above, the fact of above reported case, relating to corroboration appears to be distinguishable from the present case.

Under the circumstances there is no hesitation in holding that the prosecution has totally failed to prove the recovery of the arms and bullet from the exclusive control and possession from the petitioner. Adverse presumption under section 114 (g) of the Evidence Act is, essentially, a question of fact which is for the Court to arrive at a decision. It appears to us that non-examination of important witnesses creates presumption under section 114(g) of the Evidence Act and raises doubt about the prosecution case and benefit of doubt would always go in favour of the

45

accused petitioner. In the case of Aslam Jahangir Vs. The State, 5BLC (2000)(HCD) 514, it has been spelt out that ‘none of public witnesses either the seizure list witnesses or the men whose name find place in the F.I.R as witnesses supported the prosecution case regarding recovery of incriminating articles from the control and possession of the accused.

In the result, the order of conviction and sentence is set aside’. The aforesaid legal view has been reflected in the cases of Zillur Rahman alias Zillur Vs. The State, 6 BLC (2000) (HCD) 254 and Habibur Rahman alias Jane Alam Vs. The State, 47 DLR (1995) (HCD) 323.

10. Considering the facts and the circumstances of the case and the evidence on record, we find that the prosecution has miserably failed to prove recovery of arms and bullet from the exclusive control and possession by adducing reliable and independent evidence before the Tribunal.

11. Having considered all aspects of the case, we find merit in this Rule.

12. Accordingly, the Rule is made absolute.

13. The impugned judgment and order dated 6.5.2009 passed by the Metropolitan Special Tribunal No.7, Dhaka in Metro Special Tribunal Case no. 1468 of 2004 is hereby quashed.

14. Let the convict petitioner, Hasanul Islam Hanif alias Galcuta Hanif alias Hanif, son of Haider Ali of Village- Rajapara, Police StationNaria, District- Shariatpur be set at liberty at once if he is not wanted in connection with any other case.

Let the lower Court’s record with a copy of this judgment and order be sent down to the concerned Court at once.

Ed.

2 LNJ (2013)

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

17

HIGH COURT DIVISION (CIVIL APPELLATE JURISDICTION) Sharif Uddin

}

Chaklader, J.

}

And Krishna Debnath, J. Judgment 07.05.2012

}

} }

The notice under section 106 of the Transfer of Property Act determining the tenancy was issued on 01.08.2002 long after expiry of Dr. Moos Bin tenancy agreement which expired on Shamsher 30.09.1999. An unauthorized occupant ...Defendant- cannot take protection of law and cannot Appellant. challenge the notice on the ground that it Vs. was not served as per law. Such occupant Ayub ali and others can desire a notice so that he may not be ...Plaintiff- surprised by the act of the landlord. . . (26) Respondent.

Limitation Act (IX of 1908) Article 139 Plaintiff served legal notice on 29.2.2009 and suit having filed on 25.9.2002 as per Article 139 of the Limitation Act is not barred by limitation as law provide for institution of such suit within 12 years from the date of determination of tenancy. It appears from order sheet of House Rent Control Case No. 19 of 2001 that it was filed on 27.01.2001, long after 15 months of the expiry of the agreement which was expired on 30.09.1999 i.e. House Rent Control Case was filed at the time when there was no lease agreement. ….(20) Premises Rent Control Act (III of 1991) Section 18 (5) Since defendant did not pay rent as per terms of lease agreement and no rent receipt was produced in Court showing payment of rent and defendant’s claim of payment of rent in debit vouchers having not referred to the monthly rent of the suit premises, as such, this debit vouchers do not in any way save the defendant from the mischief of defaulter to be evicted from the suit premises. …(22) Transfer of Property Act (IV of 1882) Section 106 First Appeal No. 181 of 2010 with Civil Revision No. 4570 of 2009

General Clauses Act (X of 1897) Section 27 Section 27 of the General Clauses Act speaks notice if issued (to the tenant) under registered post at the address of the defendant, which defendant did not deny at any point of time, that it is served.

Premises Rent Control Act (III of 1991) Section 18(5) It is the case of defendant that he paid rent in House Rent Control Case. It appears that tenancy, lease agreement expired on 30.9.1999. It appears that the aforesaid case was filed on 27.01.2001 long after expiry of tenancy as such payment of rent in House Rent Control case is also tainted with default. ..(28) Premises Rent Control Act (III of 1991) Section 10 Clause (a) of section 10 of the Premises Rent Control Act prohibits the acceptance of any sum of money over and above the rent payable by a tenant. This clause has also made illegal even any claim or invitation of an offer for the payment of such sum of money in the form of premium, salami or fine either when tenancy is being created or renewed, or during its continuance. Under Clause (b) no one is allowed to claim or receive a payment of more than one month’s rent in advance.

1983 BLD 116 (PARA 9); 40 DLR (AD) 89 (Para 11); 40DLR (AD) 1 ...(31)

18

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

(Para 17 & 18); 38 DLR (AD0 196; 46 DLR(AD) 121; 2 DLR (PC) 83; 29 DLR (SC) 13; 33 DLR (AD) 55; 32 DLR 52; 63 DLR (AD) 83; 27 DLR 643; 14 BLT (AD) 83; 29 DLR 214; 17 DLR 677; Porkrn Kulty Vs. Attanchari Velappil Manwared, AIR 1954 Mad 382; Sohan Lal Vs. Poonam Chand, AIR 1961 Raj 32; Sree Naresh Vs. Kanailal, AIR 1952 Cal 1952; Giriza Deri Vs. R. C. & E. Office, AIR 1965 All 366; 46 DLR (AD) 346; 1981 BCR (AD) 41; 49 DLR (AD) 144; 2 MLR (AD) 112; 31 DLR (AD) 183, 1 BLD (AD) 19; 56 CWN 480; 43 DLR (AD) 225; 50 DLR (AD) 210; 53 DLR (AD) 6; 5 MLR (AD) 295; 5 BLD (AD) 77; 1984 BCR 520; 31 DLR (AD) 155; 38 DLR (AD0 196; 56 DLR 47; 4 MLR (AD) 410; 2 BLD (AD) 151; 43 DLR (AD) 230; 1984 BCR (AD) 151; 43 DLR (AD) 230; 1984 BCR (AD) 516; 43 DLR (AD) 115 ref.

Mr. Akhtar Imam, Advocate with Mrs. Rubaiya Zafar Khan, Advocate ... For the Defendant-Appellant Mr. A.J. Mohammad Ali, Advocate with Mr. Forrukh Rahman, Advocate …For the Plaintiff-Respondents Judgment Sharif Uddin Chaklader, J. Appeal from Original Decree No. 181 of 2010 and Civil Revision No. 4570 of 2009 by contesting defendant having arising out of the self same cause of action and having related to the same property are taken up together and this judgment would govern both these appeal and rule.

2. The facts relating for disposal of the appeal are that, plaintiffs are the heirs of late Professor Yousuf Ali and after his death, his heirs, plaintiffs, become the owners and demands for entering into an agreement with defendant for leasing the demised property describing in the schedule to the plaint at

2 LNJ (2013)

monthly rental at Tk. 45,000/= from 01.10.1996 to 39.09.1999 with a condition that defendant would pay the rent to the defendant appellant at the first week of each of the month according to English calendar but this defendant appellant at no point of time paid the rent as per terms of agreement and out of rent of Tk. 45,000/= sometimes paid rent, at Tk. 500/=, sometimes 2,000/= 5,000/=,10,000/= as a result huge amount of money as rent was fallen due. Plaintiffs on 01.09.2002 served legal notice upon defendant under section 106 of the Transfer of the Property Act and thereafter, filed the suit.

3. Defendant appellant’s case is that, the father of the plaintiffs, late Professor Yusuf Ali and this defendant had good relationship. This defendant established “Datco Private Limited” Company and this defendant through this Company earned foreign currency for this country. Defendant at first took rent of the disputed premises at a monthly rental at Tk. 25,000/= from 1984 and thereafter, upon an agreement, tenancy was extended from 01.10.1996 to 30.09.1999 and rent was fixed at Tk. 45,000/= for 3(three) years. Tk. 5,40,000/= was paid as advance with a condition that this advance will be adjusted against monthly rent.

Defendant after spending huge amount of money made renovation of the suit property and after expiry of the period of lease, on adjustment of the advance money, tenancy still continuing. It is further case of this defendant that during this extension period of lease, plaintiff No.1 took Tk. 1,50,000/= and also other plaintiffs took money from him stating that they are in need of cash money, in total Tk. 15,01,100/=. Defendant appellant having in dilemma as to who is the land lord, filed House Rent Control Case No. 19 of 2001 and regularly paying rent in that suit. Defendant appellant having scent that he may be

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

physically ousted from the suit premises filed Title Suit No. 17 of 2002 in the court of Assistant Judge, 2nd Court, Dhaka (subject matter of Civil Revision No. 4570 of 2009) which was decreed by the learned Assistant Judge but dismissed by the appellate Court.

4. Defendant also filed another written statement on the similar facts.

5. Learned Assistant Judge framed 5 issues and after examination of 2 witnesses for the plaintiffs and 2 witnesses for the defendant, decreed the suit.

6. Mr. Akhtar Imam, with Mrs. Rubaiya Zafar Khan, learned Advocates appearing for the defendant-appellant, canvassed before us, three grounds which are:- i) the appellant is not defaulter as he paid rent regularly till today and claim of the plaintiffs that the appellant owes them Tk. 3,59,500/= as unpaid rent is baseless as clear from a close examination of the exhibits which reveals that the appellant has paid Tk. 3,37,600/= in excess; ii):- the plaintiffs respondents have waived and /or acquiesced their rights to question the Appellant’s irregular mode of payment, having accepted such payments and having consented to such irregularity for over 15 years and having benefited from such irregularity during months when the respondent paid Tk. 1,00,000/=, which is more than double the monthly rent, further the appellant has taken the plea of waiver at the earliest opportunity, that is, at the trial stage can be seen from paragraph No. 3 of the written statement. iii) the final burden to prove that the appellant has defaulted is on the plaintiffs as he who asserts must prove. The provisional burden lies on the appellant and the appellant has adduced adequate evidence of payment of rent to discharge that burden.

7. Learned Advocate refer to certain exhibits which according to him prove payment of rent are:-

19

i). Debit Vouchers dated 30.11.99 & 30.11.2001 signed by both parties Exhibit Ga and Gha, ii) Statement of Accounts dated 24.10.2001 signed by both parties Exhibit Uma, Lease Agreement dated 01.10. 1996 Exhibit No. 1 and Challan Forms Exhibit Chha Series.

8. Learned Advocate elaborate his submissions that, plaintiffs did not adduce any evidence to discharge the final burden of proof and also submits that despite being legally obliged to provide rent receipts as per section 13 of the Premises Rent Control Ordinance 1991 read with Rule 6 of the Premises Rent Control Rules 1964, they have not given rent receipts to the appellant. There is no bonafide requirement as claimed by the plaintiffs as there being 8 owners for selling the property as there is no precedent to support the finding of the trial court that the power/right to sell a property falls within the ambit of ‘bonafide requirement’ as per section 18(i)(e) of the Ordinance and as such the court completely misinterpreted the said legal concept. Plaintiff No. 1 and 4 initially deliberately made false statements that they require the property for their own accommodation as during cross examination, plaintiff No. 1 admitted the fact of having executed a registered baina on 01.02.2009 and not needing the property for personal accommodation anymore. Notice under section 106 of the Transfer of Property Act which is a mandatory pre-requisite for any lawful eviction was never received and in any case defective and/or not in due compliance with the above law for not giving the notice period required under section 106 as reflected in the judgment.

9. Learned Advocate Mr. Akter Imam, on payment of rent in lump and thereby plaintiff claimed or acquiesced their right to question

20

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

2 LNJ (2013)

the Appellant’s irregular mode of payment having accepted such payment and having consented to such irregularity for over 15 years relied on the decisions of 1983 BLD 116 (para 9), 40 DLR (AD) 89, (para 11), 40 DLR (AD) 1 (para 17 and 18). Mr. Akter Imam, learned Advocate on the question of granting rent receipt submits that, respondent legally obliged to provide rent receipts as per section 13 of the Premises Rent Control Ordinance 1991 read with section 6 of the Premises Rent Control Rules, 1964 and relied on the case of 38 DLR (AD) 196. Learned Advocate on the question of service of notice under section 106 of the Transfer of Property Act submits that it is mandatory and pre-requisite for any lawful eviction and relied on the case reported in 29 DLR (HC) 214 and 8 DLR 316 wherein it is held that “In the absence of legal proof that a valid notice as required under section 106 terminating a monthly tenancy was served on the tenant, a suit for eviction is not maintainable.”

did not make any error of law in concluding that the tenant failed to prove the fact of expenditure for renovation etc. as the burden lies on the tenant. Learned Advocate further submits that, the trial court did not make any error of law in concluding that the landowner has shown that they have no other premises in Dhaka as such the plaintiffs required as ‘must’ the property as bonafide requirement. Learned Advocate lastly submit that trial court did no make any error of law in concluding that the notice was duly served as it was sent by registered post at the registered address of the defendant as such, as per provision of Section 27 of the General Clauses Act 1868 and section 106 of Transfer of Property Act it is deemed to be good service as postal receipt was submitted by the landowner as evidence, the relevant date is the date on which it is served which is also presumed to be correct under section 27 of the General Clauses Act and rightly observed by the learned Judge that service of notice need not be defeated for slight inaccuracy.

10. Mr. A. J. Mohammad Ali, with Mr. Farrukh Rahman, Advocates appearing for the plaintiff-respondents, on the other hand, submit that, the trial court did not make any error of law as the court considered both the case of contractual and statutory tenancy in the judgment. The tenancy was considered as terminated for the reason of establishment of bonafide requirement. Learned Advocate further submits that the learned Judge did not make any error of law in concluding that he who asserts must prove; the onus of proof lies on the tenant in a situation where he asserts that he paid rent in time and not a defaulter or where the tenant claim right of occupancy; no payment was made by money orders; payment of rent was made in lump does not help the tenant from the mischief of defaulter. Learned Advocate further submit that the learned Judge

11. Mr. A. J. Mohammad Ali, learned Advocate, relied on the case of 46 DLR (AD) 121 wherein it is observed that “The tenancy was considered as terminated for the reason of establishment of bonafide requirement.” On the question of burden of proof lies on whom learned Advocate relied section 101 of Evidence Act and submit that he who assert must prove; the onus of proof lies on the tenant in a situation where he asserts that he paid rent in time and not a defaulter; or where the tenant claim right of occupancy. No payment was made by money order. Payment of rent in lump does not help the tenant from the mischief of defaulter. Learned Advocate relied on the case of 2 DLR (PC) 83, 29 DLR (SC) 13, 33 DLR (AD) 55, 32 DLR 52, 63 DLR (AD) (2011) 83, learned Advocate also submits that bonafide requirement that the landowner has shown that

2 LNJ (2013)

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

they have no other premises in Dhaka is being the presence of element of ‘must’ for upholding bonafide requirement. Learned Advocate next relied on the case of 27 DLR 643, 14 BLT (AD) (2006) 83 on the case of validity of eviction notice submits that in concluding that the notice was duly served as it was send by registered post as per Section of 27 of General Clauses Act 1868 and section 106 of TPA. Postal receipt was also submitted by the landowner as evidence and relied on the case of 29 DLR (HC) 214 and 17 DLR (HC) 677.

12. Let us proceed with our own judgment.

On the submissions of the parties questions calls for determination as to whether defendant is a defaulter and next, whether plaintiffs required the premises bonafide.

13. To answer the question, we have to consider the law as well as fact. Law must apply on the facts of each case. Facts make law to apply it in its true perspective. There may be law and unless there is fact to apply it, such law remains in the book not in practice or reality. As such to answer the question as formulated herein above we must see the depositions as well as exhibits to see whether the learned Judge committed error of law as well as fact in decreeing the suit.

14. Let us quote relevant portions of depositions of witnesses adduced by the parties. Md. Ayub Ali, plaintiff No.1, in his deposition stated as:Aœ j¡jm¡l ¢hh¡c£ e¡¢mn£ pÇf¢š−a i¡s¡¢Vu¡ ¢qp¡−h ¢Rm z h¡aÑj¡−e A®~hdi¡−h B−R z Bj¡l ¢fa¡l p¢qa ¢hh¡c£l i¡s¡¢Vu¡ 1-10-96 a¡¢lM qC−a 30-9-99 Cw fkÑ¿¹ j¡¢pL i¡s¡ d¡kÑÉ ¢Rm 45 q¡S¡l V¡L¡z i¡s¡¢Y~u¡ Q¥¢š²l ®juc ®no qJu¡l f−l ¢hh¡c£−cl p¢qa A¡j¡l ®L¡e Q¥¢š² qu e¡C z i¡s¡ Q¤¢š² eh¡ue e¡ qJu¡l f−l ¢hh¡c£ ®h-BCe£i¡−h e¡¢mn¡ pÇf¢š−a cM−m B−R z i¡s¢Vu¡−cl Q¥¢š²

21

Ae¤k¡u£ 30-9-99 Cw a¡¢l−M ¢hh¡c£ e¡¢mn¡ pÇf¢š R¡¢Xu¡ ®cu e¡Cz ¢hh¡c£ e¡¢mn¡ pÇf¢š−a ®S¡l L¢lu¡ B−R z ¢hh¡c£ e¡¢mn¡ pÇf¢š−a ¢eu¢ja i¡s¡ fËc¡e L−hz ¢hh¡c£l L¡−R A¡j¡−cl h−Lu¡ b¡−L 2 mr 68 q¡S¡l V¡L¡ z A¡j¡l ¢fa¡ i¡s¡¢Vu¡ Q¥¢š² b¡L¡ AhÇq¡u j¡l¡ k¡Ju¡l fl −b−L e¡¢mn¡ pÇf¢š−a jÉ¡e f¡Ju¡l Hl hÉhp¡ L¢l−a−R z ” ***** e¡¢mn¡ h¡s£ ¢hh¡c£ i¡s¡ ®eJu¡l f−l ¢hh¡c£ e¡¢mn¡ pÇf¢šl i¡s¡ ¢eu¢ja f¢l−n¡d L−l e¡Cz ¢hh¡c£ A¢eu¢jai¡−h A¡c¡u L¢lu¡−R z Hje¢L ¢hh¡c£ 500/- V¡L¡J i¡s¡ f¢l−n¡d L¢lu¡−R z Bj¡l ¢fa¡l p¢qa pÇf¡¢ca i¡s¡ H¢NË−j¾V Hl ®ju¡l 309-99 Cw a¡¢lM fkÑ¿¹ ¢Rm z Eš² Q¥¢š²l ®ju¡c ®no qJu¡l f−l A¡j¡l ¢fa¡l p¢qa Bl ®L¡e H¢NË−j¾Y qu e¡C z ***** ¢hh¡c£ ®X¢hV i¡JQ¡l¢V ®~a¡u¡l L¢lu¡¢Rm z A¡j¡−cl p¢qa ®X¢hV i¡JQ¡l pwœ²¡¿¹ ®L¡e Q¥¢š² qu e¡C z e¡¢mn¡ pÇf¢šl h¡s£¢V M¡¢m L¢lu¡ ¢c−a h¢m L¡le Bj¡−cl e¡¢mn£ pÇf¢šl h¡s£ hph¡−pl SeÉ fË−u¡Se B−Rz Bj¡−cl Y¡L¡l nq−l Bl ®L¡e hph¡−pl S¡uN¡ e¡C z Bjl¡ haÑj¡−e i¡s¡u h¡s£−a hph¡p L¢l−a¢R z ¢hh¡c£ ®S¡i f§hÑL e¡¢mn¡ pÇf¢š−a hph¡p L¢l−a−R z ***** ¢hh¡c£ Bj¡l ®j±¢ML Ae¤−l¡−d e¡¢mn£ pÇf¢šl cMm R¡¢su¡ ¢cu¡ k¡u e¡C z ¢hh¡c£ e¡¢mn¡ h¡s£ e¡ R¡¢su¡ a¡mh¡q¡e¡ L¢l−a b¡−Lz ¢hh¡c£l p¢qa Bj¡l ¢fa¡l ®k i¡s¡ Q¥¢š²fœ qu Eq¡l j§m Q¥¢š²fœ A¡j¡l L¡−R B−R z Eš² Q¥¢š²fœ B¢j Bc¡m−a c¡¢Mm L¢lm¡jz ¢hNa 1-10-96 Cw a¡¢l−Ml i¡s¡ Q¥¢š² Bc¡m−a c¡¢Mm L¢lm¡j (fËcx-1)z Eš² Q¥¢š²l ®ju¡c ®no qJu¡l flJ e¡¢mn¡ pÇf¢š R¡¢Xu¡ e¡ ®cJu¡u B¢j ¢hNa 29-8-2002 Cw a¡¢l−M ü¡r¢la E¢Lm ®e¡¢Vn ®fËle Ll¡ qu z ***** Bj¡l¡ Aœ j¡jm¡u h¡c£ ®j¡V 8 Se z B¢j ¢eSf−r Hhw AeÉ−cl f−r p¡rÉ fËc¡e L¢l−a¢R z

22

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

2-8 ew h¡c£fr A¡j¡−L Bc¡m−a p¡rÉ fÊc¡−el SeÉ rja¡ fÊc¡e L¢lu¡−R z ***** ¢hh¡c£l Q¥¢š²l ®ju¡c 30-9-1999 Cw p¡−m ®no qCu¡ ¢Nu¡¢Rm z i¡s¡ Q¥¢š²l ®ju¡c h¢dÑa Ll¡ qC−h e¡ Eq¡ B¢j 1 j¡p f§−hÑ ¢hh¡c£−L S¡e¡C z a−h X~q¡l a¡¢lM Bj¡l p¤¢e¢cÑøi¡−h j−e e¡C z B¢j Eš² ¢hou ¢hh¡c£l A¢gp he¡e£−a S¡e¡Cu¡¢Rm¡jz ¢hh¡c£ h¡s£ M¤S−a pju m¡N−h j−jÑ pju Q¡¢qu¡ ¢Rm z B¢j ®j±¢MLi¡−h ¢hh¡c£−L ®L¡e pju h¢dÑa L¢l e¡C z flhaÑ£ 1 j¡−p kMe a¡q¡l¡ e¡ k¡u aMe B¢j 1-9-2002 Cw a¡¢l−M BCeNa hÉhØq¡ NËqe L¢lz 1-9-2002 Cw a¡¢lM Hl f§−hÑ B¢j ¢m¢Mai¡−h ®L¡e BCeNa hÉhØq¡ NËqe L¢l e¡C z ¢hh¡c£ C−a¡f§−hÑJ e¡¢mn¡ hs£l i¡s¡ ¢eu¢jai¡−h f¢l−n¡d L¢la e¡ z ¢hh¡c£ e¡¢mn¡ hs£l i¡s¡ fËb−j i¡X~Q¡l Hl j¡dÉ−j flhaÑ£−a i¡s¡ M¤Ql¡ ¢c−a b¡¢L−m p¡c¡ L¡N−S ü¡rl ¢ea z P.W.2 Begum Ayesha Khorshed, in her deposition stated as:“e¡¢mn£ pÇf¢š Bjl ¢fa¡ Se¡h jªa CEp¤g Bm£ p¡−q−hl ¢Rm z Bj¡l ¢fa¡ 17C H¢fËm j¤¢Sh eNl plL¡−ll ü¡d£ea¡l pec f¡WL¡l£ ¢R−mez ¡ ¢a¢e H ®c−nl fÊbj ¢nr¡ j¿»£ ¢R−mez e¡¢mn¡ h¡s£l ¢ho−u Bjl¡ Aœ j¡jm¡ c¡−ul L¢lz j¤p¡ ¢he pj−pl Hl pw−N Bj¡l ¢fa¡l 1996 Cw p¡m −b−L 30-999 Cw a¡¢lM fkÑ¿¹ hs£ i¡s¡l H¢NË−j¾V ¢Rm z Eš² H¢NË−j¾V ®no qJu¡l f−l ¢a¢e e¡¢mn¡ pÇf¢š−a hph¡p L¢l−a b¡−L z ¢hh¡c£−L e¡¢mn¡ pÇf¢¡š h¡l h¡l R¡s−a h¢m a¡q¡ p−aÄJ ¢a¢e h¡s£ R¡−se e¡C z A®~hdi¡−h h¡s£−a hph¡p L−l Bp−R z e¡¢mn¡ pÇf¢š Bj¡−cl fË−u¡Se z Bj¡l j¡ J BC−ul e¡¢mn¡ pÇf¢šl h¡s£ hph¡−pl SeÉ M¤hC fË−u¡Se z Bj¡l ¢fa¡l Y¡L¡−a e¡¢mn¡ pÇf¢š R¡s¡ Bl ®L¡e h¡s£ e¡C z” Defendant who was examined as D.W. 1 in his deposition stated as:“E−õMÉ, HC ¢hh¡c£ hý V¡L¡ MlQ L¢lu¡ Ef−l¡š² i¡−h e¡¢mn£ h¡wol AiÉ¿¹l£e J h¢qiÑ¡−N pwØL¡l ab¡ ®jl¡ja pq fË−u¡Se£u Øq¡fe¡ ¢ejÑ¡e f§hÑL ®i¡N cM−m b¡L¡ AhØq¡u h¢eÑa fË−gpl CEp¤g

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Bm£ p¡−qh haÑj¡e h¡c£Ne−L ac£u aÉ¡SÉ ¢hš−i¡N£ Ju¡¢ln ¢hdÉj¡e l¡¢Mu¡ ¢hNa 3-12-1998 Cw a¡¢l−M jªa¥Éhle L−le z hm¡ BhnÉL, CaÉhp−l h¢eÑa CEp¤g Bm£ p¡−qh LaÓÑL pÇf¡¢ca Q¥¢š²f−œl ®ju¡c A¢aLÊ¡¿¹ qCh¡l fl h¡c£Ne−L flhaÑ£ Q¥¢š²l ®ju¡e eh¡ue f§hÑL Q¥¢š²fœ pÇf¡c−el Ae¤−l¡d L¢l−m 2-8 ew h¡c£Ne 1 ew h¡c£−L a¡q¡−cl f−r e¡¢mn£ h¡wol ¢ho−u ¢hh¡c£l p¢qa Q¥¢š²fœ pÇf¡ce pq fË−u¡Se£u Lb¡h¡aÑ¡ ewjevi ®j±¢ML rja¡ fËc¡e L−lez hm¡ BhnÉL, h¡c£Ne ®k−qa¥ HL¢œa qq~u¡ i¡s¡l c¡¢Mm¡ ¢cu¡ ¢hh¡c£l ¢eLV qC−a i¡s¡l V¡L¡ NËqe L−le e¡C, ®pC−qa¥ ¢hh¡c£ LaѪL Eš² LiPK…Z V¡L¡ i¡s¡l V¡L¡l p¢qa pjeÄu qu e¡C z g−m ¢hh¡c£ h¡c£N−el ¢eLV a¡q¡l MlQL«a V¡L¡ f¡Je¡ l¢qu¡−R z” Defendant witness No. 2, A.T. M. Morshed, who is relation of defendant No. 1 in his deposition stated as:“1 ew h¡c£ BCEh Bm£ ph¡l f−r signature L−l i¡s¡ ¢eaz 2004 p¡−ml ¢hh¡c£l DGM (Accounts) e¤l¦m B¢je ®Q±d¤l£ z Debit Voucher …¢m deal Ll−aez Debit Voucher j¡d¡−j ¢h¢iæ pj−u ®eu¡ 15,01,100z/- V¡L¡l statement c¡¢Mm Ll¡ qCu¡−R k¡ e¤l¦m B¢j−el ®~al£ Ll¡ z h¡c£l¡ A¢NËj i¡s¡ ¢eaz e¡¢mn£ h¡s£−a ¢hh¡c£l V¡L¡l ¢h¢iæ pju pwú¡l L¡S Ll¡ qu z pwØL¡l h¡hc 84 p¡m qC−ha 40, 12, 812 /V¡L¡ h¡c£l¡ ¢hh¡c£−L ®cu e¡Cz e¡¢mn£ pÇf¢šl NÉ¡p, f¡¢e, ¢hc¤Év ¢hm ¢hh¡c£ ®cu Hhw bill up to date f¢l−n¡d Ll¡ B−R z 15. Plaintiff exhibited lease agreement as exhibit-1, legal notice as exhibit-2 and Postal receipt as exhibit No.3. Defendant exhibited as many as 7 exhibits, as Exhibit Ka to Niyo.

Lease agreement as exhibit -Ka, Debit Vouchers dated 30.11.1999 as exhibit Ga to Gha, statement of accounts dated 24.10.2001 signed by both parties as exhibit Uma, Order sheet of House Rent Case No. 19 of 2001 as Exhibit ‘Cha’ challan forms dated 7.01.2002 in House Rent Control Case No. 19 of 2001 filed in the court of 2nd Assistant Judge, Dhaka dated 27.01.2001 as exhibit Chha series and exhibit ‘Ja’ is the Order sheet of House Rent Case No.

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

40 of 1977 filed in the Second Court of Assistant Judge, Dhaka.

16. In the suit for eviction prime question calls for determination as to whether the tenant is defaulter, whether landlord requires the suit property bonafide and thirdly, whether the defendant tenant or plaintiff landlord violate any terms of the lease agreement, of the three condition or criteria for eviction, if any one of the condition found against the tenant he/she can not avoid mischief of eviction. Of the three conditions for eviction, first one is defaulter.

Defaulter is of two categories i.e. defaulter and habitual defaulter. A person become defaulter the moment he does not pay the rent within the period mentioned in the agreement for tenancy, i.e. non payment or omission to pay at the due time and place or neglect to pay rent in time.

Defaulter stands as omission or failure to perform a legal or contractual obligation. It may intentional, unintentional or willfull and all these categories, if proved, tenant shall be evicted. As such, a tenant must be vigilant at least in payment of rent and to collect receipt of payment from the land lord. Law gives all the arms in the hand of land lord for eviction of a tenant whether desirable or undesirable and to avoid eviction tenant must pay rent within the agreed date.

17. A tenancy always created by agreement, it may be oral or written. A tenant must honour the terms of the agreement to have protection of law of several type or kinds of tenancy, house rent tenants are tenant at will. As per Black’s law Dictionary, ‘such type of tenancy has been designed as a tenancy in which the tenant hold possession with the land lords consent but without fixed terms (as per duration or rent), a tenancy that is terminable at the will of either the framework or transferee and that has no designated period of duration.

Such a tenancy may be terminated by either

23

party upon fair notice’ when tenancy duly created and the tenant put in possession, he is owner of the premises for the time being and has all the usual right and remedies of an owner to defend his possession but it does not create a right to complete and exclusive possession which right preserved with the land lord. As per Section 2(g) of Premises Rent Control Act, (Act No. III of 1991) tenant means any person by whom or on whose account, rent is payable for any premises and includes legal representative as defined in Code of Civil Procedure, 1908 (V of 1908) and a person continuing in possession after the termination of a tenancy in his favour.’ A tenant is put into possession under certain terms and condition, a breach of terms by land lord entitled the tenant to claim damage but by the tenant led him to eviction from the premises.

18. Bonafide requirement has not been defined under the Act. Bonafide means, according to Tomlin’s law Dictionary ‘in good faith, without fraud or deception, honestly, openly, sincerely. In the case of Porkrn Kulty Vs.- Attaucheri Velappil Manwared. AIR 1954 Mad 381, bonafide requirement given the meaning reasonably requires. The land lord must have a genuine present need of the building for his occupation. In the case of Sohan Lal -Vs-Poonam Chand, AIR 1961 Raj 32 bonafide has been given the meaning that ‘Nothing is bonafide which is not done with due care and attention’ In Black’s law Dictionary bonafide has been defined as in good faith, made in good faith, without fraud or deceit, sincere, genuine. In the case of Sri Naresh -Vs- Kanailal, AIR 1952 cal 1952, bonafide requirement defined as “ there must be a short of “must have” element in the need of land lord and also that his want or need of the house must be honestly felt by him.’ In the

24

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

case of Giriza Deri Vs. R.C. & E. Office, AIR 1965 All 366 the definition of bonafide requirement is the land lord has a genuine need to occupy the accommodation, that is, he must have necessary to occupy it and the necessity must be bonafide or genuine one.

19. In the back drop of such legal fiction let us proceed with our own judgment.

20. It appears that suit was filed for eviction.

The lease agreement, as it appears was from 01.10.1996 up to 30.9.1999. Plaintiff served legal notice on 29.2.2009 and suit having filed on 25.9.2002 as per Article 139 of the Limitation Act is not barred by limitation as law provide for institution of such suit within 12 years from the date of determination of tenancy. It appears from order sheet of House Rent Control Case No. 19 of 2001 that it was filed on 27.01.2001, long 15 months of the expiry of the agreement which was expired on 30.09.1999 i.e. House Rent Control Case was filed at the time when there was no lease agreement.

21. It is the case of plaintiff that defendant is defaulter in payment of rent. It is the case of defendant that he paid the rent through debit vouchers which is exhibited as exhibit Ga and Gha. There is no law qualifying payment of rent by debit vouchers. It may be a personal arrangement without any legal basis or force. If we consider the lease agreement then we find that rent was fixed, at first, at Tk. 25,000/=, lateron, fixed at Tk. 45,000/= from the period of 01.10.1996 to 30.09.1999. On reference to the vouchers it appears that in spite of fixing the rental at Tk. 45,000/= as monthly rent, defendant sometime pay Tk. 500/=, sometime Tk. 2,000/=, sometime Tk. 5,000/=, and sometime Tk. 10,000/=. In this way during the time of agreement, rent was paid piling dues at Tk. 91,500/= and after expiry of lease

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agreement, up to 01.09.2002 i.e. occupation of the premises, rent was fallen due at Tk.2,68,000/=, in total Tk. 3,59,500/=. On reference to the vouchers it appears that defendant paid rent for March, 1999 at Tak 10,000/=, April and May, 1999 did not pay any rent, June, 1999 on three different dates rent was paid in total Tk. 32,000/=, July, 1999 paid Tk. 6,000/= in this way, defendant paid monthly rent up to 2008 with assertion that he paid advance money of Tk. 5,40,000/= to adjust. On reference to the exhibit Gha it can easily be seen that payment as made was made sometimes beyond 7th of the following month.

No rent was paid by this defendant as per lease agreement and no rent receipt produce in Court to qualify his such payment as payment for tenancy. The relationship between tenant and landlord is good but when it brought to the court, the court shall go with the law not with the relationship as it was then a past and closed chapter. In many of the decisions it is held that payment in lump do not exonerate defendant from eviction. We may refer to the decisions reported in 46 DLR (AD) 346, 448 1981 BCR (AD) 41, 49 DLR (AD) 144, 2 MLR (AD) 112, 31 DLR (AD) 183 and 1 BLD (AD) 19 .

22. Since defendant did not pay rent as per terms of lease agreement and no rent receipt produced in Court showing payment of rent and defendant’s claim of payment of rent in debit vouchers having not refer to the monthly rent of the suit premises, as such, this debit vouchers does not in any way save the defendant from the mischief of defaulter to be evicted from the suit premises.

23. Next question is whether the suit premises required by the landlord bonafide. In many decision it is held bonafide requirement must be proved. In some cases it is held that merely stating that plaintiff required the suit premises

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

bonafide is not enough, further evidence is required. But we have seen there is no definition of bonafide requirement. It is gathered on the basis of ‘judge made law’ with reference to facts of each of the case. In Black’s law Dictionary bonafide has been defined as in good faith, made in good faith, without fraud or deceit, sincere genuine. In the case of Sri Naresh -Vs- Kanailal, AIR 1952 Cal. 852, bonafide requirement defined as “there must be a short of “must have” element in the need of land lord and also that his want or meet of the house must be honestly felt by him. In the case of Girija Devi –Vs- R.C.& E. Officer, AIR 1965 All 366 the definition is that land lord has a genuine need to occupy the accommodation, that is, he must have necessity to occupy it and the necessity must be bonafide or genuine one” 24. In the instant case in hand plaintiffs claim that they need the premises bonafide as they had no other option to reside in Dhaka City as plaintiff’s mother is serious ill and for her treatment, the premises is required. Secondly, plaintiffs claimed that after the death of Professor Yousuf Ali, he survived by 8 sons and daughters as such, the ownership of homestead and possession there of remain unsettled as such, they have to go for multistoried construction which required demolishment of the present structure.

Multistoried construction in the present day for accommodation of the sons and daughters is now go of days is law by itself. High rise building has been encouraged by the Government for accommodation of densly populated Dhaka City. Concept of accommodation has been changed dramatically for the last decade or so. Now a days families feels comfort in residing at flats in a compact premises rather in homestead as such for use and occupation, for congenial atmosphere, if

25

the plaintiffs, after the death of original owners, 8 in number, required the premises for building and rebuilding purpose it is enough to held that the suit premises is required by the plaintiffs bonafide. In the decision of 56 C.W N. 480, 43 DLR (AD) 225, 50 DLR (AD) 210, 53 DLR (AD) 6 and 5 MLR (AD) 295 it is held bonafide requirement has no definition and it is to be consider on the facts of each case.

25. This defendant made out a case that he paid advance money and renovated the suit premises with huge money which is to be adjusted by deducting in proportionate quantum of money from rent. If the case of the defendant is true the he could take shelter of Section 10 of the Premises Rent Control Act. But he did not. On the question of renovation as he claim to tune of Tk. 50 lacs is beyond the terms of the contract as in term 8(e) of the lease agreement tenant was allowed to make minor repair to the tune of Tk.500/= per month. Law also provide in section 13 of the Act that Landlord bound to give rent receipt and if not, tenant can demand to that and bring landlord to court as Section 27 of the Act provide for punishment of he landlord for not providing rent receipt. Defendant at no point of time went to court to enforce his legal right as aforesaid.

Reference may be made to the decision of 5 BLD (AD) 77, 1984 BCR 520, 31 DLR (AD) 155, 38 DLR (AD) 196, 56 DLR 47.

26. Defendant raised objection as to service of notice. Notice for determining tenancy is as per Section 106 of the Transfer of Property Act, 1882 provide for 15 days notice and it will take effect from the date of receive of the notice.

This notice was issued on 1.8.2002 long after expiry of tenancy agreement which expired on 30.9.1999. An illegal occupant can not take protection of law and can not challenge the notice on the ground it was not served as per

26

Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

settle law. Illegal occupant can desire a notice so that he may not be surprised by the act of the landlord but can not take shelter of law by saying notice is illegal as it was not served following the law. Decisions reported 4 MLR (AD) 410, 2 BLD (AD) 151 speaks that notice is only giving information to the tenant that he will not continue with the tenancy.

27. In the instant case defendant make out a case that notice was not served upon them but it is seen that notice was issued at the address of defendant and it was sent by registered post with acknowledgement due, exhibit 2 and 3.

Section 27 of the General Clause speaks notice if issued (to the tenant) at the address, which defendant did not deny at any point of time, speaks that it is served.

28. It is the case of defendant that he paid rent in House Rent Control Case. It appears that tenancy, lease agreement expired on 30.9.1999.

It appears that the aforesaid case was filed on 27.01.2001 long after expiry of tenancy as such payment of rent in House Rent Control case is also tainted with default, reference may be made to the decisions of 43 DLR (AD) 230, 1984 BCR (AD) 516, 43 DLR (AD) 115, and 46 DLR (AD) 494.

29. Defendant lastly submits that payment was accepted by the landlord. It is also defendant’s case that lump payment was accepted by the landlord thereby lost the right for eviction of the defendant. It is settled that in accepting rent after defendant being defaulter does not exonerate defendant from eviction.

Moreover, it is proved that the tenant defendant is defaulter, accepting of rent in any way, can not be construed as waiver, estoppels and acquiescence.

30. Let us now refer some decisions on this score. The Appellate Division in the case of P.K. Chakraborty-Vs- A.P. Chowhdury 1981

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BLD (AD) 19= 1981 BCR (AD) 41 held that “A tenant paying rent of several months in a lump shall ordinarily be tread as defaulter unless there is a contract to the contrary or such payment it covered by waiver or acquiescence on the part of the landlord” The case of Ramjan Ali Mistry -Vs- Md. Heday-etullah, 31 DLR (AD) 183 where in it is held that “payment of rent in lump shall not exonerate tenant from being a defaulter unless there is contract to the contrary or such payment cover waiver or acquiescence on the part of the landlord.” The case of Premal Ranjan Das –Vs- Nasima Khtun 49 DLR (AD)144=1997 MLR 112, wherein it is held that “ A tenant who has failed to pay rent within the date stipulate in the agreement, or in the absence of agreement, according to the provision of the Ordinance will be defaulter and not entitled to protection. It is, however, open to him to plead that the landlord waived his right to receive rent in terms of the agreement or the law.” In 46 DLR (AD) 343 it is held that “Advance payment of rent is not sufficient to save the tenant from being defaulter.” In this decision the case of Ramjan Ali Mistry -Vs.- Md. Hedayetullah 31 DLR (AD) 183, Profulla Kumar Chakraborty -Vs.Anil Pros-had Choudhurty and others, 33 DLR 55, the case of 40 DLR (AD) 89 and 40 DLR (AD) 109 were relied. In the case of Nurul Islam-Vs.-Ali Hossain Miah, 50 DLR(AD) 114 it is held that “Under the tenancy agreement rent of the previous month was to be paid by the 1st week of the next month. Admittedly the defendant on 3.5.86 sent by money order the rent for the month of March and April 1986 together to the plaintiff and as such the defendant clearly defaulted to pay rent at least for the month of March, 1986.”

31. On the question of advance payment the Appellate Division in the case of Sumsuddin Vs.- Md. Hossain, 31 DLR (AD) 155 held that “ Clause (a) of section 10 of the premises Rent Control Ordinance prohibits the acceptance of any sum of money over and above the rent

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

payable by a tenant. This clause has also made illegal even any claim or invitation of an offer for the payment of such sum of money in the form of premium, salami or fine either when tenancy is being created or renewed, or during its continuance Under Clause (b) no one is allowed to claim or receive a payment of more than one month’s rent in advance.

32. Agreement for lease is void under section 23 of the Contract Act when its object is not lawful and that it having not been registered is unenforceable and also inadmissible in evidence.

33. The agreement to pay Tk. 19,200/= by way of advance rent was undoubtedly a part of the consideration of the transaction as defined in section 2(d) of the Contract Act. This contravenes positive statutory mandate as provided in section 10 (b) of the Premises Rent Control Ordinance.

34. In view of the unenforceability of the agreement the position is that the appellant is a monthly tenant who is liable to ejectment if he makes default in payment of rent as provided in section 18 (5) of the Premises Rent Control Ordinance.” In the case of Ramjan Ali Mistry Vs.- Md. Hedayetullah, 31 DLR (AD) 183 wherein it is held that “i) In the case of default in payment of rent, a tenant is protected, notwithstanding the provisions of Transfer of Property Act or the Contract Act from ejectment as long as he pays rent to the full extent allowed by the East Pakistan Premises Rent control Ordinance and he performs the conditions of the tenancy. The expression ‘as long as tenant pays rent’ indicates that the point of default on the part of the tenant will be not only the date of filing of the suit but will continue till decree is passed. It does not however mean that if the tenant subsequent to the filing of the suit has deposited the rent with the Rent controller, the default incurred earlier is cured. On the contrary the tenant’s liability for default even

27

after the filing of the suit continues under the law till the passing of the decree. (ii) Protection of the tenant against ejectment is on the fulfillment of certain conditions. He should pay rent to the full extent allowable by the Ordinance and if he does so, he is protected from ejectmetn on the ground of default in the payment of rent. It further sets our the terms of payment of rent. It is to be paid within the time fixed by the contract, and in the absence of any such contract, within fifteenth day of the month next following for which the rent is payable or he can deposit rent in terms of section 19. Under the explanation of sub-section (5) of section 18 a landlord shall not be deemed to have refused to accept any rent unless the rent is remitted within the period referred to in that sub-section by postal order and there has been compliance with other details given therein.”

35. The case of Nur Begum-Vs.- Dr. Yusuf Ahmed and another, 50 DLR (AD) 210 wherein it is held that “Requirement of the demised premise for an adult son and a widowed daughter cannot be said to be a requirement of any one else other than the plaintiff’s because they are very much within his family.”

36. On the question of service of notice the Appellate Division held in the case of Nurul Islam-Vs.-Ali Hossain Miah 50 DLR (AD) 114 wherein it is held that “Notice sent to the tenant by post at the address of the suit premises having been returned unserved with the remark of the postal authority ‘let’ was presumed to be good service.” In the case of Abdul Aziz –Vs.Abdul Majid 46 DLR (AD)121 wherein it is held that “ If the period of lease expires with efflux of time or if the interest of he lessor is transferred, that will be a good ground for eviction of a tenant under the “Transfer of Property Act, but “shall not of itself be deemed to be satisfactory cause within the meaning of clause 9(e) of sub-section (I) of

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

section 18 of the Ordinance. A protection from eviction will be available to the tenant if he is ready and willing to pay rent to the full extent allowable by the Ordinance, notwithstanding the expiry of the term of lease and notwithstanding the transfer of interest of the lessor.” In this decision it is further held that “A person continuing in possession after terminating of a tenancy in his favour is also a tenant.” And further held that “Rent control legislation is a special law giving a greater protection to a tenant so long he pays rent and performs the conditions of the tenant.” In the case of Kalu Mondal-Vs.- Begum Fazilatun Nessa, 46 DLR (AD) 53 it is held that “The provision contemplates an enquiry as to whether the tenant was entitle to the benefit of the protection from ejectment due to more necessary when the tenant comes with a positive case that due to some abnormal situation it was beyond his control to pay rent.

Conditions like war of liberation should be read in the statutory provision as an exception clause to the sub-section.” In the case of Nur Begum-Vs.- Dr. Yusuf Ahmed and another. 2 MLR 380 it is held that “The refusal to accept the notice under section 106 of the T. P. Act, by the successor Chairman of the Governing Body addressed to the outgoing Chairman and sent under the care of the defendant No. 2 of a Kindergarten school can very well be construed as refused by the Chairman and as such the service of notice under section 106 of the T. P. Act is held to be proper service.” In this decision further held that “Requirement of the demised premises for an adult son and a widowed daughter of the plaintiff cannot be said to be a requirement of anyone-else other than the plaintiff’s because they are very much within the family of the plaintiff.” In the case of Shar Banu -Vs.- Md. Abdus Sobhan and others, 2 M.L.R. 253 it is held that “A tenant is

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not entitled to make deposit of rent with the House Rent Control unless the land lord has refused to accept the same sent to him by Money order under section 18 of the Ordinance.

37. When a monthly tenancy was determined by the land lord serving notice under section 106 of the Transfer of Property Act, upon the original tenant his legal heirs do not inherit the tenancy right in the premises and they also not entitled to fresh notice under section 106 of T.P. Act. Deposit of rent with the House Rent Controller after expiry of the due date is of no save the tenant from being a defaulter.”

38. On the question of bonafide requirement we may refer to the case of Sri Naresh -VsKannai Lal 56 C.W.N. 480 wherein it is held that “It has already been pointed out by this Court that the word “require” is something more than the word “desire” It was said by Mr. Justice Buckland in the well-known decision in the case of Rekhab Chand Doogar V. J.R.D Cruz (I) [(1922) 26 C.W.N. 499] that in the case of requirement there is an element of need. With great respect to the learned Judge it maybe pointed out that the same element of need is also present in the case of desire. We do not desire what we do not need.

Psychologists point out that there cannot be a desire without want or nee. The real distinction between “desire” and “require” lies in the insistence of that need. There is an element of “must have’ in the case of “require’ which is not present in the case of mere “desire.” It is from this standpoint that the question of requirement has to be determined. The word “bona fide’ or “in good faith” has got to be interpreted in the light of the definition of “in good faith” given in the Bengal General Clauses Act. “in good faith” according to that Act means “honestly” and without negligence.

Therefore in the present case what has got to be seen is that there must be a sort of “must have” element in the need of the landlord and lord and also that his want or need of he house must

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Dr. Moos Bin Shamsher Vs. Ayub Ali and another, (Sharif Uddin Chaklader, J. )

be honestly felt by him. That both the elements are satisfied in the present case will appear form the judgments of both the courts below.

Under the circumstances the courts were right in granting a decree of ejectment.”

39. In 1985 B.C.R.-96 it is held that “Simple deposit that amount of rent without cause of terms of desire money can not consider full deposited such a case is not maintainable.” In the case of Zaher Ahmed -Vs.- Manik Sardar, 53 DLR (AD) 63 wherein it is held that “The landlord is under legal obligation to prove that he needs the premises for bonafide requirement. Expansion of existing business run in a shop room adjacent to the room let out constitutes bona fide requirement.” In the case of Bashir Ahmed and others -Vs.- Ayub Ali Mollah 5 M.L.R. 1 wherein it is held that “When it is proved that the monthly tenant defaulted in payment of rent to the land lord, he is liable to be ejected on ground of being a defaulter and he can not have any protection under the Premises and Rent Control Ordinance or the Transfer of Property Act. The court can well pass the decree for ejectment only on ground of default of payment of rent and in so doing it is not necessary for the court to investigate as to the bonafide requirement.”

The case of Mohd. Rafique Sowdagor -Vs.Haji Ahmed Miah Sowdagor, 4 M.L.R. (AD) 410 held that “Agreement taking advance on condition of adjustment with monthly rent as in the instant case being contrary to law is void.

When the defendant is proved to be a defaulter and the notice u/s 106 of T.P. Act is held as sufficient compliance with the requirement of law, the decree passed by the trial court and affirmed by the High Court Division in revision does not suffer from any illegality and as such no interference is called for.” In the case of Monowara Begum-Vs.- Atiqullah 4 M.L.R. (HC) 240 it is held that “It is settled law that a tenant once admitted as such can not resist his eviction by setting up title by virtue of purchase from co-sharer without surrendering possession of the premises.” Learned

29

Advocate for the respondent relied on the decision the case of Maria Keshi D’Rozario Vs. Hassan Movies Ltd. 41 DLR (AD) 135 where in it is held that “The onus to bring a case within the ambit of s. 19 as to deposit lies on the tenant and conditions for remittance by Money Order and deposit with Rent Controller are to be fulfilled by him before he makes deposit. The tenant must offer the rent of a month with in the period fixed in the contract, if any, or within the fifteenth day of the next month as referred to in section 18(5). If the rent offered is refused the tenant shall remit it by Money Order within the period fixed, and if the Money Order is retuned undelivered, then the tenant shall deposit it with the Rent Controller within fifteen days of return of the Money Order.”

40. On an over all consideration of the entire matter we find that the learned Judge committed no illegality in decreeing the suit.

We find no substance in the appeal.

41. We have seen that defendant filed the suit subject matter of Civil Revision, for restraining the plaintiff landlord permanently from evicting defendant i.e. challenging the title of the plaintiff. It is settled principle of law that tenant can file suit but that he can done after surrendering the suit premises to the plaintiff landlord. Moreover, at no point of time tenant has right to challenge the title of landlord.

Moreover, we find that defend-ant being a defaulter can not restrain the plaintiff landlord from evicting him from the suit premises permanently. We find no substance in the rule.

42. In the result, the appeal is dismissed without any order as to cost.

43. Rule of Civil Revision No. 4570 of 2009 is accordingly discharged.

44. Send down the lower court records.

Communicate this order at once.

Ed.

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Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

1

The

LAWYERS & JURISTS VOLUME – II. 2013 Report of the Decisions of the High Court Division of the Supreme Court of Bangladesh.

HIGH COURT DIVISION (CIVIL APPELLATE JURISDICTION) Sharif Uddin Chaklader, J. And Md Badruzzaman, J. Judgment 17.06.2012

} Abdul Huq } }

} }

...Plaintiff -Appellant.

Vs. The Oriental Bank Ltd. and others. ..Defendant Respondents.

Specific Relief Act (I of 1877) Sections 12, 32, 72, 73 and 77 The learned trial Judge has found that consideration money has been paid, sale deed has been executed, no fraud has been committed and plaintiff has proved his case but the suit was not decreed on the ground that required formalities under Registration Act has not been exhausted by the plaintiff. The provisions of sections 32, 72, 73 and 77 are not at all applicable in the instant case, the plaintiff is entitled to get a decree to register the sale deed.

The learned trial Judge found the contract has been conducted as the learned Judge found its execution has been done, consideration money has been paid, no fraud has been committed and plaintiff proved his case, only registration of the Kabala requires to be done which on the findings of the learned Judge ought to be ordered which she did not on the reason that required formalities under Registration Act has not been exhausted by the plaintiff which the learned Judge done on misunderstanding of law, Section 32 of Registration Act direct the executants (defendant) to present the document for First Appeal No. 269 of 2011

registration, Section 72 for filing appeal before the Registrar against an order passed by the subRegistrar refusing to register the deed, Section 73 relating application to Registrar where SubRegistrar refused to register the deed on ground of denial of execution and Section 77 for filing suit against the order of refusal by Registrar. We do not understand how these sections of Registration Act attracts on the facts of the given the case. Moreover, it is not the case of defendant Bank. From an over all consideration of the facts of the instant case we have seen plaintiff successfully make out a case of actual performance of a contract and it has all the essential of a contract valid and binding in law in order to be enforceable in law. ...(21) The judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing the Title Suit No. 195 of 2010 is set aside. Title Suit No. 43 of 2007 renumbered as Title Suit No. 195 of 2007 is decreed.

Defendant Bank is directed to present the executed deed before the Sub-Registrar Gazipur and delivered possession of the suit land within 30 days from the date of receive of this judgment by the learned Judge, failing which decree shall be executed as per law. ...(24) Haji Foyzuddin and others Vs. Mohammad Serajul Haq Mia and others, 14 DLR 148; Quazi Din Mohammad Vs. Al-haj Arzan Ali and another, 47 DLR (AD) 48 and Hafez Ahmed Vs. Obedur Rahman and others, 7 DLR (AD) 263, ref.

Mr. S.M. Abdur Rouf, Advocate ---For the plaintiff-appellant No one appears.

---For the defendant-respondents.

2

Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

JUDGMENT Sharif Uddin Chaklader,J. This appeal by the plaintiff directed against judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing Title Suit No. 195 of 2010 thereby refusing to register the deed of suit for specific performance of a contract.

2. Plaintiff-appellant instituted the aforesaid suit with prayer as:(L) “ag¢pm h¢eÑa pÇf¢š Q¥¢š² fËhmœ²−j HL¢V ¢e¢cÑø pj−ul j−d¡ h¡c£ hl¡h−l p¡g Lhm¡ c¢m ®l¢S¢øÊ L¢lu¡ ®cJu¡l SeÉ ¢hh¡c£−cl ¢hl¦−Ü l¡u J ¢Xœ²£ fËQ¡l L¢l−a Hhw ¢edÑ¡¢la pj−ul j−dÉ ag¢pm h¢eÑa pÇf¢šl cMm f−Sne h¡c£ hl¡h−l h¤T¡Cu¡ ®cJu¡l SeÉ ¢hh¡c£−cl ¢e−cÑn ¢cu¡ ¢Xœ²£ ¢c−a Hhw ¢edÑ¡¢la pj−ul j−dÉ Eš² c¢mm ¢hh¡c£ fr LaѪL h¡c£ hl¡h−l ®l¢S¢øÊ pq cMm f−Sne h¤T¡Cu¡ e¡ ¢c−m j¡ee£u Bc¡m−al j¡dÉ−j af¢pm h¢eÑa pÇf¢šl ®l¢S¢ÖYÊ~ J cMm f−Sne h¤T¡q~u¡ ¢ch¡l ¢hq£a B−cn ¢c−a z” 3. In the plaint the averments are that, Aga Ahmed Yousuf by 5 saf kabala deeds in between 25.01.1990 and 15.7.1990 purchased 2 acres 20 decimals of land and mortgaged the land in favour of Bangladesh Leaf Tobacco Company Ltd. with Al Baraka Bank Ltd. which later on converted to Oriental Bank Ltd. by mortgage deed No. 9264 dated 3.5.2000. Aga Ahmed Yousuf also registered a power of attorney on 29.5.2000 giving power to the Bank to sell the suit land if required for realizing mortgage money. Bank became absolute owner as per Artha Wrin Adalat Ain, 2003. Aga Ahmed Yousuf having failed to repay the loan, Bank published legal notice in daily ‘Prothom Alo’ on 16.01.2006 for auction selling the suit property. Plaintiff having participated in auction sale became highest bidder at Tk. 16,00,000/=. Bank decided to sell the property to plaintiff. Bank under memo recovery/B-13/12-88 dated 21.3.2006 direct the plaintiff to pay the auction money and if plaintiff pay the auction money, within 15 days the sale deed would be registered. Plaintiff paid the auction money on 19.4.2006 by Pay Order

2 LNJ (2013)

No. D-BAN 18059 dated 19.4.2006 of Dhaka Bank Ltd. Thereafter, the Bank vide Memo No. INV: 2006/6752 TOB-PO DB 2006/6752 dated 19.6.2006 gave power to Shamim Ahmed, Assistant Executive Officer, to register the sale deed in favour of the plaintiff. As per advice of the Bank, plaintiff through his lawyer prepared a sale deed. Mr. Monwar Hossain, legal adviser of the Bank execute the deed and inform the Sub-Registrar of Gazipur Sadar, on 19.6.2006 but thereafter, defendant Bank for the last 9 months keep silence and did not register the deed. Plaintiff through his lawyer issued legal notice on 13.9.2006 but the defendant did not response to the legal notice, hence the suit.

4. Defendant Bank contested the suit by filing written statement. It is the specific case of defendant Bank that the borrower, Bangladesh Leaf Tobacco Company Ltd. Jatiya Scout Bhaban 9th-12 Floor, 70/1, purana paltan line, Kakrail, Dhaka, got Bai-Muazwei facility of Tk. 1.50 crore from the defendant Bank on 25.05.2000. The said loan facility subsequently was renewed several times. The dues of the borrower was Tk. 2,83,95,311.78 as stand on 30.9.2005 and present dues to the Bank is at Tk. 3,47,03, 269.00 as on 31.12.2007. The facilities were secured by mortgaging 2.20 acres of land i.e. the suit land at Gazipur District. There is no other security to recover the dues. In 2001, M/S G.K. Adjusters Ltd. a surveyor company assessed the market value of the said mortgaged property at Tk.1,77,40,000.00. The borrower having defaulted to adjust the dues, the Bank arranged to sell the property at auction under the provisions of section 12(3) of the Artha Wrin, Adalat Act, 2003, but none participated in auction. Thereafter Bank’s the then recovery agent M/S Desmination Trade Syndicate managed the plaintiff as buyer who in collusion with others offered only Tk. 16,00,000/=. It may be stated that the plaintiff in the same manner purchased some other mortgaged properties of the Bank.

2 LNJ (2013)

Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

5. Defendant Bank further stated that although the plaintiff deposited the full value but the sale as being at low price was objected

by Bangladesh Bank who took over the management of the defendant Bank. After taking over by Bangladesh Bank, the present management of the defendant Bank is also considering that it will be unjust and detrimental to the interest of the Bank if the property is sold at such a low price. It is further case of defendant Bank that the bank deals with public money who will be ultimate sufferer if the securities are disposed of at such low price keeping Bank’s huge dues pending. It is further case of defendant Bank that the owner of the property who has mortgaged the property has also objected to sell the property at such a low price. It is further case of defendant Bank that “In fact the plaintiff in collusion with the recovery agent and the then Bank management managed to purchase the property at a negligence price.”

6. In the suit, plaintiff examined 1 witness and defendant examined 3 witnesses. Plaintiff exhibited a number of documents as well as defendant also exhibited a number of documents which are exhibit 1 to 10 series and exhibits ‘Ka’ to ‘Cha’ series. Learned Judge dismissed the suit.

7. In dismissing the suit, learned Judge found that the deed was executed and also found that unless there be any allegation of fraud practiced defendant can not refuse to register the deed. Learned Judge found that defendant failed to prove that plaintiff practiced fraud in purchasing the suit property at Tk. 16,00,000/=. Learned Judge also found that on the ground of low price defendant can not refuse to execute and register the kabala.

Learned Judge also found that Bangladesh Bank can not objected for selling the property at low price and Bangladesh Bank cannot objected for registering the deed. Learned Judge also found that deed has been completed for registering the same. Thereafter, learned Judge on taking into consideration section

3

32,72, 73 and 74 of the Registration Act refused to decree the suit that plaintiff did not exhausted the aforesaid provisions of law.

8. Mr. S. M. Abdur Rouf, learned Advocate, appearing for the plaintiff-appellant, submits that, the learned Judge after finding that there is no fraud practice in selling or purchasing the suit property and also deed having been executed by the Bank authority, committed gross illegality in not decree the suit unnecessarily invoking different provision of Registration Act which are not at all relevant on the fact of the given case. Learned Advocate further submits that taking recourse to Registration Act in a suit for specific performance of contract is beyond the provision of law as the provisions of Registration Act on the fact of the given case are not at all applicable.

9. Learned Advocate in support of his submissions relied on the case of Hazi Goyzuddin and others -Vs- Mahammed Serajul Haq Mia and others, 14 DLR 148, the case of Quazi Din Mohammad-Vs-Al-haj Arzan Ali and another, 47 DLR (AD) 48 and the case of Hafez Ahmed –Vs- Obedur Rahman and others, 7 DLR (AD) 263.

10. In 14 DLR it is held that “It is immaterial whether the executed document was presented for registration or not or there was failure in a suit under the Registration Act or its infructuous determination, because the cause of action for a suit for specific performance of contract is quite distinct and separate from the cause of action for a suit under the Registration Act, in one, the cause of action is the original contract and in the other the cause of action is the refusal to get the kabala registered and the scope of inquiry in the two suits are quite different. On course, if the executed document is registered there is nothing left to specifically enforced by a suit for specific performance because the contract is executed and no contract is subsisting” “Be that as it may, section 27 of the specific Relief Act provides:-

4

Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

“Except as otherwise provided by this chapter specific performance of a contract may be enforced against(a) Either party thereto; (b) Any other person claiming under him by a title arising subsequently to the contract, expect a transferee for value who has paid his money in good faith and without notice of the original contract;” 11. This provision lays down a general rule that the original contract may be specifically enforced against a subsequent transferee but allows an exception to that general rule and it is to the subsequent transferee for value without notice and it has been held in the case of Rhup Narain Singh alias Shyam Narain Singh v. Gokhul Chand Mahton & ors. that it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit to get. Their Lordships of the Privy Council further observed: “Further, the subsequent transferee is the person within whose knowledge the facts as to 9 whether he has paid and whether he had notice of the original contract lie, and the provisions of section 103 and 106 of the Indian Evidence Act, 1872, have a bearing on the question.”

12. The question is whether a suit for specific performance of a contract of sale of immoveable property lies in view of the remedy available under section 77 of the Registration Act, 1901. An answer to this question will depend upon whether or not section 77 of the Registration Act bars Specific performance of a contract of sale under the specific Relief Act, 1877, either expressly or by implication. Sub-section 9(I) of section 77 which is material here runs thus:“Where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent

2 LNJ (2013)

may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction situate the office in which the document is sought to be registered a suit for decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree” Obviously, section 77 does not expressly bar specific performance of a contract of ale if it is otherwise liable to be specifically enforced under the Specific Relief Act. In order to determine if section 77 bars specific performance of a contract of sale by implication it is necessary to examine the scope and purpose of a suit under that section and those of a suit for specific performance of contract of sale under the Specific Relief Act. The Registration Act deals with registration of documents generally. According to the scheme of that Act, every document to be registered there under may be presented at the proper registration office by its executants or by the persons claiming under the same or by their duly authorized agents, vide section 32.

13. On such appeal or application, the Registrar may direct the document to be registered under section 72 or section 75, or refuse to do so under section 72 or 76. Where the Registrar refuses to order the document to be registered, the person claiming under such document may, within thirty days after the making of the order of refusal, institute in the Civil Court of appropriate jurisdiction, a suit under section 77 for a decree directing the document to be registered Thus it will appear that the sole purpose of a suit under section 77 is to procure registration was refused initially by the Sub-Registrar and ultimately by the Registrar. Acting under section 77, a Civil Court can do only what the Registrar could have done. Therefore, inquiry by the Court in a suit under the said section is confined to the plaints mentioned in section 74, namely, (a) whether the document has been executed, and (b) whether the requirements of the registration

2 LNJ (2013)

Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

law have been complied with. In such a suit, the Court is not concerned with the validity or legal effect of the document and, as such, it cannot inquire into defences like fraud, misrepresentation, undue influence, coercion, duress, want of consideration and matters affecting the validity of the document. But, all such matters can be inquired into by the Court in a suit for specific performance of a contract of sale, if these are raised therein by the party opposing performance of the contract. A decree in a suit under section 77 of the Registration Act affects only the document concerned but does not strike at the transaction between the contending parties. Therefore, the Court’s refused to pass a decree in a suit under section 77 directing the registration of the document cannot affect the contract of sale which remains unperformed until the deed of sale is registered.”

14. Thus, a decree in suit under section 77 affects only the document, but a decree in a suit for specific performance of a contract strikes at the transaction itself, and the reliefs obtainable in a suit for specific performance which may in appropriate cases, include recovery or confirmation of possession, cannot be had in a suit under section 77. Also the cause of action in the said two classes of suits is different. The cause of action in a suit under section 77 arises on the Registrar’s refusal to register the document, but the cause of action in a suit of the other class is the breach of the contract by the person contracting to sell. Thus, it is quite clear that the scope and purpose of a suit under section 77 of the Registration Act and those of a suit for specific performance of a contract of sale are different. A suit for specific performance of a contract of sale provides a separate remedy based on a cause of action which is independent and separate from the cause of action for a suit under section 77 which is apparently an enabling provision cannot be construed as providing the only exclusive remedy to the person claiming under the unregistered document. Section 77 being an

5

enabling provision the person claiming under the unregistered document may being a suit under the section for procuring only the registration of the document and if he chooses to do the suit must be brought within thirty days after the Registrar’s order refusing its registration. As the said section does not provide the only exclusive remedy, separate suit under the Specific Relief Act for the enforcement of the contract itself is maintainable if it is not otherwise barred.”

15. In the case of 47 DLR it is held that “Section 28(a) of the Specific Relief Act reads: “Specific performance cannot be enforced if the consideration to be received is so grossly inadequate, with reference to the state of things existing at the date of the contract as to be either by itself or coupled with other circumstances, evidence of fraud or of undue advantage taken by the plaintiff.” Appellant (P.W.1) is the only witness to say that in 1977 the normal price of the house would have been Taka 30 lakh. He could not substantiate his claim by evidence of any other witness or by producing any document. No registered saledeeds of the relevant time showing price of similarly situated house were produced.

Reliance has been placed by Mr. Mahbubuddin Ahmed on the deposition of P.W.1, the plaintiff, who purchased a house just near the suit house in 1980 at a consideration of Taka 16 lakh. This house does not stand on the Mirpur road like the house in suit but stands a little inside of kalabagan, was rising steadily since 1973, the price prevailing in 1980 would be certainly higher than that prevailing in 1977 Again, mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an ‘inadequacy’ price must be an evidence of fraud or of undue advantage taken by the plaintiff. An allegation of fraud was, of course, may be the appellant in his defence, but it was rejected by the Courts below as totally baseless.”

16. In the case of 7 DLR it is held that “Where the suit is brought within 3 years of the

6

Abdul Huq Vs. The Oriental Bank Ltd. and others. (Sharif Uddin Chaklader, J. )

contract, the Court is competent to award a decree for specific performance of the contract directing the legal representatives of the original vendor to execute a kabala in accordance with the terms of the original kabala and have the same registered.�

17. These decisions decided the question of law unnecessarily traveled by the learned Judge refusing to grant specific performance of a contract on the ground that provisions of Registration Act having not exhausted the suit is dismissed.

18. Let us proceed our judgment.

19. Specific Relief Act gives the court power to allow certain kind of special relief. Section 12 of the Specific Relief Act in Sub section a, b, c, and d empower the court to enforced specific performance of a court. Section 22 give absolute discretion to grant specific performance of a contract, but the discretion is judicial discretion not whimsical or extraneous or unauthentic or perverse or capricious Law gives Jurisdiction to court to refuse specific performance of a contract, if, in the case in our hand the defendant’s plea cover the 3 categories of cases in which law gives jurisdiction to court to refuse decree for specific performance of contract. (i) if the enforce of contract give unfair advantage over defendant, (ii) if the defendant did not forces hardship if the contract be enforced in iii) where the plaintiff has done substantial acts or suffer losses in consequent of contract capable of specific performance of contract.

20. But, the case of defendant does not attract any of the 3 categories in which court may refuse specific performance.

21. The learned trial Judge found the contract has been conducted as the learned Judge found its execution has been done, consideration money has been paid, no fraud has been committed and plaintiff proved his case, only registration of the Kabala requires to be done which on the findings of the learned Judge ought to be ordered which she did not on the

2 LNJ (2013)

reason that required formalities under Registration Act has not been exhausted by the plaintiff which the learned Judge done on misunderstanding of law, Section 32 of Registration Act direct the executants (defendant) to present the document for registration, Section 72 for filing appeal before the Registrar against an order passed by the sub-Registrar refusing to register the deed, Section 73 relating application to Registrar where Sub-Registrar refused to register the deed on ground of denial of execution and Section 77 for filing suit against the order of refusal by Registrar. We do not understand how these sections of Registration Act attracts on the facts of the given the case. Moreover, it is not the case of defendant Bank. From an over all consideration of the facts of the instant case we have seen plaintiff successfully make out a case of actual performance of a contract and it has all the essential of a contract valid and binding in law in order to be enforceable in law.

22. On an over all consideration of the entire matter, we find merit in the appeal.

23. In the result, the appeal is allowed without any order as to cost.

24. The judgment and decree dated 11.7.2011 passed by the learned Joint Directed Judge, 1st Court, Gazipur dismissing the Title Suit No. 195 of 2010 is set aside. Title Suit No. 43 of 2007 renumbered as Title Suit No. 195 of 2007 is decreed. Defendant Bank is directed to present the executed deed before the SubRegistrar Gazipur and delivered possession of the suit land within 30 days from the date of receive of this judgment by the learned Judge, failing which decree shall be executed as per law.

25. Send down the lower court records.

Communicate this order at once.

Ed.

2 LNJ (2013) Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Moyeenul Islam Chowdhury, J. And Naima Haider, J.

} Md. Eklashur Rahman Khan } ...Petitioner. }

}

Judgment 05.08.2010

}

Vs. Deputy General Manager, Staff management Division-1, Bangladesh Krishi Bank, Head Office, Dhaka and others. ...Respondents.

Constitution of Bangladesh, 1972 Article 102 Bangladesh Service Rules Part I, Clause 9 Bangladesh Krishi Bank Karmachari Probhidan Mala, 1988 Clause 55 In the instant case, admittedly the age of the petitioner as declared by the petitioner at the time of entry into the service of the Bank is discrepant with the age as shown in his S.S.C certificate. As per clause 9 of the B.S.R Rules read with Clause 55 of the Bangladesh Krishi Bank Karmachari Probhidhan Mala, the age as reflected in the petitioner’s S.S.C certificate must prevail over the age as declared by the petitioner at the entry point of his employment.

Pearlberg Vs. Varty (Inspector of Taxes), [1971] 2 All ER 552 (CA), ref.

Mr. Khijir Ahmed, Advocate with Mr. Dider Alam Kollol, Advocate …For the Petitioner.

Mr. Md. Delwar Hossain, Advocate …For the respondents 1 to 6.

Writ Petition No. 3912 of 2006.

37

Judgment Naima Haider, J : In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. Proka/Kobaybi-1.bay.na (u.ka) e/42/2005-2006/4345 dated 13.03.2006 issued by the deputy General Manager, respondent No.1, ordering retirement of the petitioner from his service under section 9(1) of the Public Servang (Retirement) Act, 1974 and Memo No. Proka/Kobaybi-1/bay na (u.ka) /e-42/20052006/4345(15) dated 13.03.2006 issued by respondent No.2 requesting the Deputy General Manager, Human Resource Development Division, Bangladesh Krishi Bank, Head Office, Dhaka to deduct the salary and other emolument of the petitioner drawn from 06.01.2004 from his pension (Annexure-D) should not be declared to have been done without any lawful authority and is of no legal effect or such other or further order or orders passed as to this Court may seem fit and proper.

2. In order to appreciate the contentions raised by the respective parties and to answer the issues raised here, a brief narration of the facts relating to the filing of the present writ petition is set out hereinafter.

3. The petitioner was appointed as a Junior Assistant of Bangladesh Krishi Bank vide Memo No. 1(2)77-78/558 dated 26.08.1977.

On commencement of the service, he was initially appointed as a probationer for a period of one year. His service was thereafter confirmed and his service book was prepared entering the date of birth of the petitioner as 06.01.1953 on the basis of the application and papers annexed thereto submitted by the petitioner at the time of his application for employment. During the continuation of the service, the petitioner was promoted as

38 Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.) 2 LNJ (2013)

Supervisor in 1980, as an officer in the year 1985 and lastly he served as a Senior Officer from 23.03.205 till issuance of the impugned notice. The petitioner had been performing his duties in various branches of the Bank. While performing his duties as a Senior Officer in the Cerkhi Branch, Sylhet, all on a sudden he received a letter on 16.03.2006 issued by the respondent Bank under section 9(1) of the Public Servant (Retirement) Act, 1974 announcing his retirement from his service on completion of 57 years treating his date of birth as 06.01.1947. The same letter also contained a direction issued by the respondent No.2 for deducting his salary and other emoluments from 06.01.2004 from his pension. Being aggrieved by the said letter and finding no other alternative and efficacious remedy, the petitioner moved this Court and obtained the Rule Nisi.

4. Mr. Khijir Ahmed, the learned Advocate appearing on behalf of the petitioner submits at the very out set that the date of birth of the petitioner supplied by him to the respondent Bank has been recorded in the service book as 06.01.1953. The respondents after verifying the necessary documents and certificates and the information supplied by the petitioner at the time of his entry into the Bank and on being satisfied had offered the petitioner a position in the bank. He submits that the maximum age limit for entering into the Bank was 25 years.

In taking into consideration the date of birth of the petitioner as 06.01.1953, the petitioner’s entry into service was well within time. Mr. Ahmed contends that if the date of birth of the petitioner was taken to be 6.01.1947, he would not have been able to join the service. He further submits that the discrepancy as to the date of birth actually cropped up when the petitioner found that his school record erroneously recorded his date of birth as

06.01.1947 and as a result of which the S.S.C. certificate bears the same date of birth i.e., 06.01.1947. After detecting this anomaly, the uncle and guardian of the petitioner had sworn an affidavit on 08.01.1969 before the Magistrate, 1st class, Sylhet stating that birth date of the petitioner was 06.01.1953.

5. Mr. Ahmed further submits that at the time of joining the Bank the petitioner had submitted his S.S.C. certificate as well as the affidavit affirmed by his uncle and guardian dated 08.01.1969. He further submits that the respondent Bank after accepting the date of birth of the petitioner as 08.01.1953 is now estopped from issuing the impugned notices and cannot take recourse to section 9(1) of the Public Servant (Retirement) Act, 1974.

6. The learned Advocate’s next leg of submission is based on the principle of the natural justice. Mr. Ahmed submits that no notice of any form was served upon the petitioner before issuance of the impugned notice. Furthermore, no enquiry was ever held by the Bank when the alleged dispute had arisen as to the date of birth in his service record and the date of birth reflected in his S.S.C. certificate. Mr. Ahmed takes us to the office memorandum dated 26.08.1977 as evidenced from Annexure -A to the writ petition and had drawn our attention to clause 11 as follows : 11. “He will have to produce his original certificates in support of academic qualification and proof of age at the time of joining the post and will also be required to produce release order from present employer, if any.

7. Mr. Ahmed contends that by this memorandum the petitioner was required to produce any proof of age at the time of joining the said post. He further submits that the words

2 LNJ (2013) Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.)

39

“academic qualification” and “proof of age” must be read disjunctively and in that view, any proof of age will suffice. The respondent having accepted his application at the time of entry cannot now move from their earlier stand and retire the petitioner by issuing the purported impugned memo treating the date of birth as reflected in the S.S.C certificate.

the fact that at that relevant point of time, the father of the petitioner was alive and there was no cogent reason for the uncle of the petitioner to affirm the affidavit stating the date of birth of the petitioner as 06.01.1953. Mr. Hossain submits that the said affidavit was sworn by an incompetent person who actually posed to be the guardian of the petitioner.

8. Mr. Ahmed next submits that on being satisfied the respondent Bank has appointed the petitioner in the service and was given confirmation on his satisfactory completion of the probationary period. He further submits that the petitioner’s age was 25 years at the time of entry into the service which was well within time. The petitioner would not have been able to join if his date of birth would have been 6.1.1947. Having accepted the date of birth of the petitioner as 6.1.1953, the respondent Bank is now estopped from backing out from their stand and cannot retire the petitioner by taking resort to Section 9(1) of Public Service (Retirement) Act, 1974. He lastly submits that the action of the respondent Bank is malafide and illegal and the impugned notices warrant interference by this Court and as such the Rule is liable to be made absolute.

10. Mr. Hossain further submits that the official record of the bank reveals that the time of the making the application for the post, the petitioner committed fraud upon the bank by misrepresenting the date of birth as 06.01.1953.

His further contention is that the petitioner never took any steps to correct the date of birth from the Board of Intermediate and Secondary Education, Comilla when the alleged affidavit was affirmed by his uncle on 08.01.1969 while the S.S.C certificate was issued on 24.10.1970.

9. Mr. Md. Delwar Hossain, learned Advocate appearing on behalf of the respondent No.1 submits that the petitioner passed the S.S.C certificate (compartmental) in science group in the year 1970 wherein the petitioner’s date of birth was recorded as 06.01.1947. At the time of his making the application for post of Junior Assistant in Bangladesh Krishi Bank, the uncle and the guardian of the petitioner had sworn an affidavit and stated that the petitioner’s date of birth as 06.01.1953. He further submits that this particular affidavit sworn on 08.01.1969 cannot be taken into consideration because of

11. On the question of serving the impugned notices upon the petitioner, Mr. Hossain submits that no notice was required to be served upon the petitioner who has already attained the age of retirement. The bank after detecting the fraud, took opinion from the lawyer of the Bank who opined that Rule 9 of part (1) of Bangladesh Service Rules is applicable when the LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e 1988 is silent on any issue. Rule 9(1) of the Bangladesh Service Rules is quoted below : ""V£L¡x (1) Q¡L¤¢l−a fË−hnL¡m£e pj−u ®O¡¢oa hupC Q¨s¡¿¹ h¢mu¡ NZÉ qC−hz a−h ®Se¡−lm ¢geÉ¡¢¾pu¡m l¦mp Hl 124 ew ¢h¢dl BJa¡u ®k ®L¡e L¡l¢eL i¥m (clerical error) pw−n¡de ®k¡NÉz Cq¡R¡s¡ ®O¡¢oa hup Hl p¢qa jÉ¡¢VÊL¥−mne h¡ Hp, Hp, ¢p p¡¢VÑ¢g−L−V E−õ¢Ma hupC p¢WL h¢mu¡ NZÉ L¢l−a qC−hz pwØq¡fe j¿»Z¡m−ul fËX·¡fe ew-pj (¢h¢d-4)1C-4/87-18(400), a¡¢lMx 1 H¢fËm, 1987 ®j¡a¡−hL H¢g−X¢i−Vl j¡dÉ−j hup f¢lhaÑe NËqZ−k¡NÉ euz''

40 Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.) 2 LNJ (2013)

12. After scanning the submissions of the parties and the documents in the file, we are of the view that the fate of the petition orbits round the singular question, namely, whether the date of birth of the petitioner at the time of his entry into employment will prevail or the date of birth as recorded in the SSC certificate will prevail.

13. Having regard to the facts of the case, it is to be borne in mind that this court sitting in writ jurisdiction is not the appropriate forum for undertaking any enquiry into such disputed questions of fact. When a person seeks employment he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service whether be it in the government or any other instrumentality, there is a minimum age of entry. In order to verify that the person concerned is not below the prescribed age he is required to disclose his date of birth. It is ordinarily presumed that the date of birth disclosed by the incumbent gives the date of birth and the employee accepts it as true and accurate before it is entered in the service record. This entry in the service record made in the before of the employee’s statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules.

14. Again, one of the relevant circumstances in matters relating to service is the age of the person particular who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. It will not be unreasonable to

presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for the office. In such a case, it can not be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would not be justified and proper to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of this estoppel, as advanced by the learned Advocate for the petitioner would apply and the Bank is estopped from issuing the impugned notice.

15. Any document coming into existences subsequent to entrance in service and correctness or genuineness of entry therein is said not free from doubt. In the instant case the petitioner joined service in 1977 and got his date of birth recorded as 01.06.1953.

Thereafter, he had passed the S.S.C examination in 1970 wherein that the date of birth was recorded at 06.01.1947. It cannot be lost sight of that the petitioner ever took any step to rectify the date of birth after entering into service with the respondent bank. The dispute of date of birth raised by the petitioner can also be looked by another angle and appears to be not workable. If the date of birth of the petitioner as projected by him at the fag end of his service is accepted, the petitioner in that event would have been 30(thirty) years of age when he joined the bank in 1977 and he

2 LNJ (2013) Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.)

could not have joined the bank as he had already exceeded age limit of 25(twenty five) years.

16. The grievance of the petitioner was that he was not given any opportunity of being heard and no enquiry by the bank was ever held. The learned Advocate for the petitioner relied on a decision reported in 10 SCC 516.

In that case, the petitioner was afforded an opportunity of being heard when similar dispute with regard to the date of birth had arisen. The decision of that case does not apply in the circumstances of the case. There are situations when the principle of “Audi Alteram Partem” would be excluded. This cardinal principle of natural justice will not apply if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or urgency of the situation so demands as has been held in Pearlberg v Varty (Inspector of Taxes),[1971] 2 All ER 552 (CA).

17. One cannot be oblivious of the fact of the pristine maxim that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant). Therefore, where the employment which is obtained by fraud or suppression of facts cannot entitle the petitioner to a notice and no opportunity of hearing need be given.

18. It is a well settled principle of law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the Legislature. Therefore, the language employed in a statute is the determinative factor of legislative intent. To arrive at an impeccable resolution to the said question we are required to explore the relevant provision of the Bangladesh Service Rules intensively.

41

Rule 9 of Bangladesh Service Rules stipulates that: ¢h¢d-9z plL¡l£ Q¡L¢l−a fË−h−nl pju h¡ fË−h−nl E−Ÿ−nÉ HLSe B−hceL¡l£ ®k hup ®O¡oZ¡ L−le, Eq¡C a¡q¡l ®r−œ Bh¢nÉLi¡−h fË−k¡SÉ qC−h Hhw flhaÑ£L¡−m ®L¡e E−Ÿ−nÉC a¡q¡ pw−n¡d−el Ae¤j¢a ®cJu¡ k¡C−h e¡z V£L¡x Q¡L¢l−a fË−hnL¡m£e pj−u ®O¡¢oa hupC Q¨s¡¿¹ h¢mu¡ NZÉ qC−hz a−h g¡Ce¡¢¾pu¡m l¦mp Hl 116 ew ¢h¢dl BJa¡u ®k ®L¡e L¡lZ£L i¥m (Clerical error) pw−n¡de ®k¡NÉ z Cq¡R¡s¡ ®O¡¢oa hup Hl p¢qa jÉ¡¢VÊL−¥ mne h¡ Hp, Hp, ¢p p¡¢VÑ¢g−L−V E−õ¢Ma hu−pl k¢c ®L¡e Ns¢jm f¢lm¢ra qu, a¡q¡ qC−m p¡¢VÑ¢g−L−V E−õ¢Ma hupC p¢WL h¢mu¡ NZÉ L¢l−a qC−hz pwØq¡fe j¿»Z¡m−ul fË‘¡fe ew pj (¢h¢d-4) 1C-4/87-18 (400), a¡¢lMx1/4/1987 Cw ®j¡a¡−hL H¢g−X¢i−Vl j¡dÉ−j hup f¢lhaÑe NËqZ−k¡NÉ euz The said Rule 9 therefore, says that the age declared by the applicant at the time of entry into employment is to be regarded as correct.

The proviso to Rule 9 however, says in the event of any conflict between the declared age and encrypted age into the S.S.C certificate, the latter shall prevail. The most important provision, so far as the petitioner’s case is concerned, is inscribed in clause 55 of the Bangladesh Krishi Bank “LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e, 1988” which runs as follows: 55z plL¡l£ ¢h¢dj¡m¡, CaÉ¡¢cl fË−u¡N-HC fË¢hd¡ej¡m¡u ®k pLm ¢ho−u ¢hd¡e Ll¡ qu e¡C ®p pLm ¢ho−u plL¡l£ LjÑQ¡l£−cl ®r−œ fË−k¡SÉ ¢h¢dj¡m¡, fÊ¢hd¡ej¡m¡, B−cn, ¢e−cnÑ, CaÉ¡¢cl ¢hd¡epj¤q, hÉ¡w−Ll LjÑQ¡l£N−Zl ®r−œ fË−k¡SÉ qC−hz Bangladesh Krishi Bank “LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e, 1988” has also the force of law as per the definition given in Article 152 of the Constitution. It is clear, therefore, clause 55 of

Hasanul Islam Hanif Galcuta and Hanif Vs. The (Md.and Nazrul Talukder, 42 Md.Md. Eklashur Rahman Khan@Vs. DGMHainf Bangladesh Krishi BankState Dhaka ors. Islam (Naima Haider,J.) J.) 2 LNJ (2013)

the said Probhidan of 1988 refers to clause 9 of Bangladesh Service Rules Part 1. So, Bangladesh Service Rules has legislative source which is binding.

19. In the instant case, admittedly the age of the petitioner as declared by the petitioner at the time of entry into the service of the Bank is discrepant with the age as shown in his S.S.C certificate. As per clause 9 of the B.S.R Rules read with Clause 55 of the Bangladesh Krishi Bank Karmachari Probhidhan Mala, the age as reflected in the petitioner’s S.S.C certificate must prevail over the age as declared by the petitioner at the entry point of his employment.

20. Having said so, this Court is constrained to hold that there was no illegality in issuing the impugned notice. However, this does not necessary follow that the respondent Bank can automatically recover the money without due process of law. We are rather surprised as to how the Bank at the very inception embarked upon the petitioner’s employment without requiring the petitioner to submit his original SSC certificate. The Bank’s act of indolence cannot be ignored. Even at subsequent stages without asking for the SSC certificate, the Bank allowed the petitioner to continue with his job. There is no doubt, and it is an admitted fact during the period in dispute, the petitioner worked and rendered his services to the Bank for which he was paid his salary. It is therefore difficult on the part of the Bank to come up and say that the petitioner was paid for nothing and without any work. Had the Bank been advertent the unfortunate episode was not have arisen.

21. With the aforesaid observations and findings the Rule is discharged.

22. The order of stay granted at the time of the issuance of the Rule is hereby recalled and vacated.

There is, however, no order as to cost.

HIGH COURT DIVISION (CRIMINAL MISCELLANEOUS JURISDICTION)

Syed Mahmud Hossain, J. And Md. Nazrul Islam Talukder, J.

Judgment 26.01.2011

} Md. Hasanul Islam Hanif @ Galcuta } Hanif and Hanif. }

} }

...Petitioner.

Vs. The State ...Opposite party.

Code of Criminal Procedure ( V of 1898) Section 561 A Arms Act ( XI of 1878) Section 19 (A) and 19 (f) Evidence Act ( I of 1872 ) Sections 114(g) and 134 Neither the seizure list witnesses nor the public witnesses were produced and examined before the Tribunal to prove the recovery of the Arms and Bullet from the exclusive control and possession of the petitioner. All the 7 prosecution witnesses are police personnel who proved the prosecution case but their evidence was not supported either by seizure list witnesses or by public witnesses. Non – examination of important witnesses raises doubt about the prosecution case and the accused petitioner will get the benefit under section 114 (g) of the Evidence Act. The prosecution has failed to prove recovery of Arms and Bullet from the exclusive control and possession of the petitioners. ..... (9 -10).

Zillur Rahman alias Zillur Vs. The State, 6 BLC 254; Aslam Jahangir Vs. The State, 5 BLC 514; Habibur Rahman alias Jane Alam Vs. The State, 47 DLR 323; Mohiuddin Vs. The State, 61 DLR 35; Abdul Haider Sikder and another Vs. The State, 43 DLR (AD) 95, ref.

Mr. A.B.M. Waliur Rahman Khan, Advocate --For the petitioner.

Ed. Criminal Miscellaneous Case No. 12955 of 2009.

46

Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

2 LNJ (2013)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION) Hasan Foez Siddique, J. And Md. Jahangir Hossain, J. Judgment

} } }

} }

20.02.2012

cancel all appointments made from 17-112003 to 31.08.2004 and make fresh appointments observing the existing rules . It Md. Fazle Rabbi appears that from the date of appointment Mia on 5.7.03 the Vice-Chancellor Prof. Aftab ...Petitioner. Uddin Ahmed till the date of his removal on 20-07-2005 in total 1222 Officers, Staffs Vs. and Teachers were appointed in the Professor Aftab National University under camouflage of Uddin Ahmed and the advertisement and all subsequent others appointments made thereunder are chall...Respondents. enged in the instant writ petition.

National University Act (XXXVII of 1992) Sections 6 (Ta) 12,14,15,21,24,31,34 and 36 Constitution of Bangladesh ,1972 Articles 29(1), 102(2)(a)(i) National University Service Statute Regulations 4, 95, 96, 97, 98 and 99.

The petitioner, a former senate member of the National University and a member of parliament, filed the instant writ petition by way of public interest litigation whereupon the Rule nisi was issued which was discharged. Then a member of parliament filed Review petition and a Rule was issued and eventually the rule was made absolute. All most all the added respondents prefered several Civil Petition for Leave to Appeals and their Lordships of the Appellate Division by their Judgment and order sent the matter to the present bench for disposal after setting aside judgment and order passed in the said Review petition.

The petitioner has challenged the impugned appointment of the National University under camouflage of the advertisement and all subsequent appointments made thereunder and prayed for a direction to

Writ Petition No. 5125 of 2004.

It appears from the provision of section 6 (5), 14 (6), 24 (2) (M), 31 (4), 34 (7) and 36 of the National University Act, 1992 that it can create new posts and make appointment in newly created posts after making arrange-ment of budget and registrar of the University will put the same before the Syndicate, who will consider it and take decision about the yearly financial statement. The money allocated in the budget shall be spent for such purpose for which the submission that there is no requirement of law for budgetary provision before creation of new posts is not acceptable. So before allocation of budget against newly created posts, there is no scope to appoint any one in newly created post. The appointments of 161 persons in one day and joining of those appointees on the same day and 131 persons on the next day are nothing but arbitrary exercise of administrative discretion and such appointments were tainted with fraud.

The respondent University in their affidavitin-oppositions admitted that advertisement published in Daily Sangbad on 05.01.2004 was not proper advertisement. The appointments made on the basis of such improper advertisement are not legal appointments and the

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

procedure adopted by the University suffers from the vice of arbitrariness. The University also admitted in the Affidavit-inopposition that the employment notification shown to have been published in the Daily Independent was a fictitious one. High power enquiry committee enquired matters and found illegalities and irregularity in the process of appointments.

As per provision of regulation 99(3) of the National University Service Statute it is the obligation of the University to give advertisement for direct appointment and to follow the circulars regarding quota reservation which have not been followed in the impugned advertisement.

The National University has not followed the University Act and Statute. Since those laws have been enacted for the conduct of its affairs to avoid arbitrariness. The action complained of its arbitrary, irrational unreasonable, the same is liable to be set aside in exercise of judicial review. Any appointment in the service of the public body without advertising to the posts the persons who were otherwise qualified for appointment for the posts were deprived of the opportunity for being selected for the posts is violalive by Article 29 of the Constitution.

In this case the illegalities, irregularities, arbitrariness and abuse of power in the process of creating of posts, selection and appointments are so intermixed that it becomes impossible to sort out the right from wrong or vice versa. It is the settle principle that the rules of natural justice cannot be put in a strait Jacket.

Applicability of these rules depends on the facts and circumstances relating to each particular situation. There is no force in the submission of the learned Advocates for the

47

added respondents. Accordingly the High Court Division gave some directions on the National University to cancel all the appointment in reference to the advertisement, to prepare and approve an organogram, to start a fresh selection process for recruitment in the vacant/newly created posts etc. Hence, the rule is made absolute. ‌.(39, 48, 49, 51, 53, 62, 64, 67, 68, 87, 89 & 91) State of Madhya Pradesh Vs. Nandalal, reported in AIR 1987 S.C. page-251, State of Himachal Prodesh Vs. Suresh Kumer Verma reported in (1994) 2 S.C.C. page-204, Biswa Ranjan Saha and others Vs. Sushanta Kumar Duinda and others AIR 1996 S.C. page 2552, Indra Sawhney and others Vs. Union of India and others 1992 (3) S.C.C. page 212, Lord Lindlay, in General Assembly of Free Church of Scotland Vs. Overtaum, 1904 A.C. Page 515, Sharp Vs. Wakefield (1891 A.C. 173), Delhi Transport Corporation Vs. D.T.C. Mozdur Congress AIR 1991 S.C. page 101, State of Punjab Vs. Gourdial Sing AIR 1980 S.C. page 319, Council of Civil Service Union (L.C.C.S.U). Vs. Minister for the Civil Service (1984) 31 ALL E.R. 935, S.G. Jaisinghaw Vs. Union of India AIR, 1967 S.C. page 1427, A. Umarani Vs. Registrar, Cooerative Societies, reported in (2004) 7 SCC 112, Teri Oat Estates (P) Ltd. V. U.T. Chandigarh, (Para-36, SCC P-36-37), State of Haryana V. Piara Singh, (1992) 4 SCC 118 (2006) 4 SCC 27, para-23), Ashwani Kumar V. State of Bihar, AIR 1996 (SC) 2833, Krishan Yadav and another Vs. State of Haryana and others AIR 1994 (SC) 2166, Mohinder Sain Garg. V. State of Punjab, (1991) 1 SCC 662, Union of India and others Vs. Chakradhar reported in AIR 2002 (SC) 1119, ref.

Mr.Abdur Rob Chowdhury, Senior Advocate ---For the petitioner.

48

Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

Dr. Kamal Hossain, Senior Advocate with Mr. A.M. Amin Uddin, Advocates ---For the co-petitioner.

Mr. Rafiq-Ul Huq, Senior Advocate with Mr. Khaer Ezaz Maswood and Mr. A.Q.M. Shafiullah, Advocates ---For the added–respondent 283-297, 299-334, 336-405, 411, 414, 417-521, 710-735, 878, 880-881, 886-907, 909, 913. 915 & 916.

Nos. 410, 736911-

Mr. Rokanuddin Mahmud, Senior Advocate with Mr. Mustafizur Rahman Khan, Advocates, ---For the respondent Nos. 5-27, 29110, 112-194, 196-457, 459466, 576, 595, 596, 604, 632, 653, 701 and 917-922.

Mr. Zafar Ahmed, Advocate, ---For the respondent No. 2.

Ms. Fauzia Karim, Advocate, ---For the respondent No.4, Mr. Md. Belayet Hossain, Advocate, ---For the respondent No. 883.

Mr. Mahbubey Alam, Attorney General, with Mr. Biswojit Roy, Deputy Attorney General, Ms. Amatul Karim, Asstt. Attorney General and Mr. Sarup Kanti Dev, Asstt. Attorney General ---For respondent No. 3.

Judgment Hasan Foez Siddique, J: This Rule Nisi was issued calling upon the respondents to show cause as to why the impugned appointments evidenced in AnnexureA under the camouflage of the advertisement “Annexure-B” and all subsequent appointments made thereunder shall not be declared to have been made without lawful authority and are of no legal effect and why a direction shall not be

2 LNJ (2013)

issued to cancel all appointments made from 17.11.2003 to 31.8.2004 and make fresh appointments if considered necessary after proper publication of the advertisement and maintaining the quota reservations under the existing rules.

2. Earlier this Rule was discharged by a Division Bench of this Court on 22.8.2006.

Thereafter, Mr. A.K.M. Mozammel Hoque local member of parliament filed Review Petition No.67 of 2010 and this Court by a judgment and order dated 23.8.2011 allowed the said review petition and set aside the judgment and order dated 22.8.2006 and made the Rule absolute. Thereafter, all most all the added respondents preferred Civil Petition for Leave to Appeal Nos. 1738 of 2011, 1744 of 2011, 1747 of 2011, 2012 of 2011, 2039 of 2011, 2045 of 2011 and 2074 of 2011 in the Appellate Division and their Lordships of the Appellate Division by a judgment and order dated 01.12.2011 were pleased to set aside the judgment and order passed in Review Petition No.67 of 2010 as well as the judgment and order of the Writ Petition No.5125 of 2004 and sent the matter to this bench for disposal.

3. Mr. Md. Fazle Rabbi Mia former senate member of the National University and member of Parliament instituted the instant Writ Petition by way of public interest litigation alleging, inter alia, that the National University (hereinafter referred as University) was established as Statutory Public University under National University Act (hereinafter referred as Act). As a statutory body all it’s employees are public servant and all appointments in the said University are required to be made in accordance with the laws applicable to the public bodies. Apart from prescribed qualifications including age restrictions there is State Policy as enunciated in the various instructions issued for the Government and quota reservation and

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

provision of National University Employees Service Statute No.6 (hereinafter referred as Statute No.6) which provided that for direct appointment there must be a public advertisement in addition to complying the quota reservations prescribed by the Government. Respondent No.1 (Prof. Aftab Ahmed now deceased) joined as ViceChancellor ( hereinafter referred as V.C.) on 05.07.2003. From 17.11.2003 to 04.01.2004 the V.C. appointed 348 persons without advertisement, without any selection committee and without maintaining quota system in exercising of power provided under Section 12(10) of the Act. Those appointments were made in violation of the national policy of maintaining quota and the absolute need for prior advertisement to afford equal opportunity mandated by law. A large number of appointments were made granting several advance increments thereby making them senior to previously appointed persons. Such appointments were made in an arbitrary manner and immoral motives of private gains at public cost. Out of 348 persons appointed from 17.11.2003 to 04.1.2004, 11 officers and 5 staffs were appointed on 17.11.2003, 2 officers and one staff were appointed on 19.11.2003, 13 officers and 1 staff were appointed on 02.12.2003, 55 staffs were appointed on 23.12.2003, 71 staffs were appointed on 24.12.2003 and 23 officers and 64 staffs were appointed on 04.01.2004.

Sheikh Abdullah Al- Tarik, Mrs. Aysha Akther, Md. Abul Kalam Azad, Md. Mahmudur Rahman, A.K.M. Nurul Alam Talukder, Jakir Hossain Patwary, Md. Osman Ghani, Faruque Ahmed, Md. Bashir Hossain, Md. Rashidul Islam, Md. Safiul Alam, Dil Raushan, Nurul Amin, Shahidul Nazmun Nahar and Mollah Masudul Haque were given three to five advance increments. Those increments were given at the time of their appointments. There was no advertisement. No interview was held . No appointment letters were sent to the individual by recognized

49

system of communication. Except few, the appointees joined on the day of appointment or on the following day. It could only be happened if there is private arrangement of incentive and rewards not recognized by law or regular practice. A “sham” advertisement was published in “the Daily Sangbad” on 05.01.2004. In the said advertisement though 30 categories of posts were mentioned but there was no mentioned as to how many would be recruited from each category nor was it mentioned if there were any quota reservation for any group. There is no mentioning whether such appointments would be made on the regular or temporary basis. In some cases only one designation was mentioned with other equivalent posts but the requisite qualifications and designation were not mentioned. It was a fared of a public advertisement made more to deceive then to inform or illuminate. The appointments were made prior to the publication of the advertisement. Those appointees were subsequently interviewed as departmental candidates and allowed to continue indefinitely. Those appointment having been made illegally, they cannot be regularized through backdoor denying proper and reasonable opportunity to other eligible candidates who were thus illegally shutout. 551 persons were recruited newly. All those appointments were made in violation of the mandatory rules and regulation. For the ends of justice those appointments should be cancelled. Appointments were made in many posts which were not legally created. There was no budget for such new appointments. The news of those illegal appointments were widely published in different national news papers.

Such appointments were made in colourable exercise of power which incurred expenditure more than taka one crore per month. The syndicate did not meet and approve the budget against the newly created posts. The appointments were made most arbitrarily without following the connecting laws and regulations.

50

Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

4. After the order of remand, Mr. A.K.M. Mozammel Hoque, M.P. was impleaded as copetitioner in the instant Rule. He submitted a supplementary affidavit stating, inter alia, that the procedures which are to be followed to appoint employees are no.1(1) allocation of budget, (2) approval of Prime Minister, (3) creation of posts, (4) approval of the syndicate (5) publication of the advertisement, (6) selection of the qualified candidates by the selection committee, (7) again approval of the syndicate and (8) letter of appointments to be posted. In the case of 1222 appointees the procedure as mentioned above were not followed. The respondent Nos. 1 and 2 claimed that employment advertisement was published in the “Dainik Azkaler Khabar’ on 11.9.2004 and “ The Independent” on 15.09.2004 but the Managing Director of “the Independent” issuing a letter addressing Mr. Reyhan Hossain Barister–at law informed that no such employment notice was published in the Independent on 15.9.2004. The University authority by a letter dated 08.5.2008 informed the Officer-in-Charge, Joydevpur Police Station, Gazipur that no such advertisement was published in the Independent on 15.9.2004 and the same was fake and collusive one.

Accordingly Joydevpur P.S. case No.82 dated 16.4.2008 was started. After holding investingation, the police submitted charge sheet against some officials of the University under Section 420/466/467/468/471 and 109 of the Penal Code for their involvement in the forgery. The Bangladesh Press Institute, made an inquiry on the allegation of publication of the advertisement dated 15.9.2004 allegedly published in the daily Independent, and found that on that day no such advertisement was published in the daily Independent and informed the same by letters dated 12.02.2007, 05.09.2007 and 02.08.2008. The Directorate of Archives and

2 LNJ (2013)

Libraries by two separate letters dated 27.8.2007 and 26.5.2008 said that no such advertisement was published in the Independent on 15.9.2004 which clearly established that by practicing fraud and creating fake advertisement, the appointees managed to get appointments in their respective posts. The University Grant Commission also held an inquiry and found that no such advertisement for employment, at the instance of the University, was published in the Independent on 15.09.2004. It has been stated that no selection can be made when there is no advertisement. The minutes of the meeting of this selection committee dated 10.10.2004 is absolutely fraudulent. Another criminal case has been started for creation of such fraudulent and forged minutes which has been registered as Dhanmondi P.S. Case No.17(05)/09. The said case has been charge sheeted under sections 467/468/471/109 of the Penal Code. It has further been stated that the Annexures 6, 6A, 6B, 6C and 6D the minutes of the meeting of post creating committee and Annexures-3, 6E, 9, 9A, 9B, 9C and 9D and the minutes of the syndicate are fabricated and forged. There was no post of Assistant Chief Medical Officer, in the budget of the concerned year. There was no allocation of fund for creation and appointments in new posts inasmuch as the same was mandatory requirement under the provision of section 6(ta), 26(niew) and 45(4) of the Act. The alleged minutes of 63rd meeting of the syndicate are forged and fabricated for which the University lodged G.D. No.1944 dated 25.3.2010 (Annexure-A-D). In the 63rd meeting the alleged new posts were shown to be approved under agenda No.15 but notice of the agenda of the said meeting dated 03.11.2003 (Annexure-B-1) revealed that there were only 11 agendas. No approval from the office of the Prime Minister was taken before

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

creating and appointing in new posts thereby the University violated the notification communicated under Memo No.51/110/2/0/320 (500) dated 15.10.1992. Over the matter the University Grant Commission (hereinafter referred as U.G.C.) held an inquiry and found the allegation true. No office copy of the interview cards are found in the office, no receipt and final statement for issuing and sending interview cards were issued and found in the University office. Annexures 14-A, 14B, 16 and 16-B were fabricated documents.

The U.G.C. inquiry report shows that there were irregularities in the process of appointments.

5. The respondent No.1 Professor Aftab Ahmed (now deceased) filed an affidavit-inopposition on 19.2.2005, respondent No.2 the University filed its first affidavit-in-Opposition on 27.6.2006. The University filed supplementary affidavit-in-opposition on 19.01.2012 and another supplementary affidavit-inopposition on 31.01.2012. Respondent No.4 filed an affidavit-in-opposition on 29.1.2012, the respondent nos. 5-27, 29-110, 112-194, 196-457, 459-466, 576, 595, 596, 600, 604, 632, 653, 701 and 917-922 filed their first affidavits-in-opposition on 12.1.2012. They also filed two supplementary affidavits-inopposition on 29.01.2012 and 06.2.2012. The respondent Nos. 283-297, 299-3334, 336-409 , 410, 411, 414, 472-521, 886—907. 909. 911913 , 915 and 916 filed affidavit-in-opposition on 18.01.2012. They also filed supplementary affidavit-in-opposition on 29.01.2012. The respondent Nos. 710-734, 736-878, 880-881 also filed affidavit-in-opposition. They also filed two sets of supplementary affidavit-inopposition on 29.01.2012 and 30.01.2012. The respondent No.883 filed an affidavit-inopposition.

51

6. In his affidavit-in-Opposition the then Vice- Chancellor, Professor Aftab Ahmed, inter alia, contended that the University as an autonomous body was established under National University Act, 1992. The appointments and the service of the University are guided by its own law. The quota reservation has been maintained duly. The advertisement for regular appointments were duly published in the national dailies. According to Statute No. 6 the age limit of entry level is up to 32 years in case of officers and employees and 35 years in case of teachers. The Government earlier imposed an embargo on new appointment in the Government, semi- Government and autonomous body which was effective from October, 2001 to middle of the year 2003. For that reason all the appointment processes were stopped for a long period. The said embargo was withdrawn few days before joining of the respondent No.1. Entering into the office, he tried to run the activities of the University smoothly which demanded man power.

Accordingly, for the betterment of the University he had to appoint employees on adhoc basis under the provision of section 12(10) of the Act. Thereafter, advertisement was published in the several national dailies. Many persons who got appointments on ad-hoc basis were appointed through competitive examination. The quota system has been maintained properly. From 17.1.2003 to 4.1.2004, 349 persons were appointed out of them 96 were officers who were selected by the selection committee. From 5.2.2004 to 11.2.2004, 253 persons were also selected by the selection committee. Their appointments were approved by the syndicate of the University on 19.2.2004 . Statute 6 empowered the authority to grant increment/ increments to the employees in the beginning of his service . A few categories of officers were given increments considering

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

their degree, expertise and job experience. It is not true that the increments were given randomly. The selection committee selected the competent candidates and those persons got appointments on regular basis. The advertisements were duly published in “The Dainik Sangbad” , “ The Banglabazar Patrika” and “ The News Today” and sufficient time was given to submit applications. There is no hard and fast rule of mentioning the number of required posts in advertisement. In absence of required number of any posts the advertisement would not be illegal. The report published in different newspaper regarding appointment are motivated and false. The number of institutions enrolled in the University are gradually increasing for which workload was increasing day by day. At the beginning, the University had to deal with 410 Colleges. At present, after increasing the number of colleges stands near about 1700. The man power of the National University was not enough to deal with the matters. All appointments and budget have been approved by the Syndicate on 5.11.2003.

Not a single appointment was colourable. The allegations brought in the writ petition is frivolous, vexatious and the same has been brought with malafide intention.

7. The respondent No.2 the University in his affidavit-in-Opposition dated 27.6.2006, inter alia, contended that as per provision of Rule 97 of the Statute 6 the Post Creation Committee created 938 posts of officers and employees by a resolution dated 27.10.2003. 101 posts on 28.3.2004, 23 posts on 17.7.2004, 48 posts on 31.8.2004, 31 posts on 14.10.2004, 113 posts on 09.02.2005 and 1 post was created by another resolution dated 16.3.2005, that is in total 1255 posts were created. The Treasurer was one of the members of the Post Creating Committee and the members of the Syndicate and person responsible for financial

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management of the University. The recommendation for creation of the post by the Posts Creation Committee is necessarily attached with implied financial sanction. The Syndicate in its 63rd meeting held on 05.11.2003 approved the recommendation for creation of 938 posts of officers and employees (Annexure-6E). Similarly, the Syndicate also approved the recommendation for creation of 97 posts in its 66th meeting on 30.3.2004, approved of 23 posts in its 69th meeting on 4.8.2004, 48 posts in its 70th Meeting held on 20.9.2004, 31 posts in its 71st Meeting on 14.10.2004, 93 more posts in its 76th Meeting held on 17.2.2005. The University made public advertisement inviting applications for appointment in 30 posts of officers and employees which were published in the Daily News Paper on 05.01.2004. In response to the advertisement thousands of people applied for various posts of officers and employees. Three Selection Boards were constituted, one was for officer, one was for third class employees and rest one for 4th class employees as per provision of Rule 5(4) of the first statute of the University. As per provision of Rule 99(ka) and (kha) of the Statute 6, the Selection Committees were formed. 3075 persons applied for various advertised posts of officers, some more thousands applied for class III posts and class IV posts. The eligible candidates appeared before the respective Selection Boards. The selection board of the officers took interview of the candidates on 05.02.2004, 06.02.2004, 07.02.2004, 08.02.2004, 09.02.2004, 10.02.2004 and 11.02.2004 and prepared a list on 11.02.2004 selecting and recommending 205 candidates for appointment. The Selection Board for Class III employees took interview of 1786 eligible candidates on 05.02.2004, 06.02.2004, 07.02.2004, 08.02.2004, 09.02.2004 and 10.02.2004 and selected 469 candidates for

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

appointment and accordingly recommended the same on 19.02.2004. In total 861 eligible candidates appeared for interview for class IV posts on 10.02.2004, 11.02.2004 and 15.02.2004 and the Selection Board Selected 305 candidates and recommended those persons on 19.02.2004 for appointment. The Syndicate approved the recommendation of those 305+469+305 persons i.e. in total 979 persons for appointment as employee of the University.

Since posts were vacant and more manpower was required for smooth running of the administration, the University authority made public advertisement in the National Dailies inviting applications for appointments in specific posts. The said advertisement was published in the Daily Ajkaler Khabor on 11.09.2004 and in the Daily Independent on 15.09.2004. The eligible candidates appeared before the Selection Board on 10.10.2004 and selected 174 persons and recommended them for appointment as officers and employees. The Syndicate approved the said recommendation in its meeting held on 14.10.2004 and appointed 174 officers and employees. By the aforesaid way in total 1153 persons were appointed during the tenure of Professor Aftab Ahmed. It has further been stated that the Government by a letter circulated under Memo No. Sa: Ma: (SP)- 52/2001 -358 (120) dated 21.10.2001 imposed an embargo on recruitment which was subsequently withdrawn by another letter communicated under Memo No. mgcwi /Kt wet kvt /KcM- 11-Ask-1/1/2001-350 dated 29.12.2003. After withdrawal of the said embargo the appointments were made. The provision of quota reservation for different Divisions were more or less maintained by such appointment. The creation of posts made within period in question has been ratified by the Senate in its 10th sessions held on 21.10.2004.

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8. The respondent No.2, the University in its supplementary affidavit-in-opposition filed on 19.01.2012 contended that the Syndicate of the University in an emergency meeting held on 13.1.2012 decided to instruct his legal Advisor not to press the affidavit-in-opposition filed earlier. It has further been stated that the Syndicate in its 112th meeting held on 18.04.2009 formed a Five Members Enquiry Committee consisting of Pro-Vice Chancellor, Treasurer, Principal, Eden College and Dean of National University for holding inquiry over the matter. The said committee, after holding enquiry submitted its report on 31.12.2009 which was accepted by the Syndicate on 07.01.2010 (The inquiry report has been produced at the time of hearing of the Rule). It has further been stated that Inquiry Committee found that the then administration had submitted false and fraudulent statements and documents in affidavit-in-opposition in this Court earlier and it was necessary to take steps against the persons who were involved in making such affidavit-in-opposition. Although 6319 persons filed their applications for getting appointment as officers and employees of the University but no written test was held for evaluating the candidature inasmuch as in the advertisement it was mentioned that in case of more applications the authority may take written examination. Inquiry Committee further observed: “j¶¨bxq †h, †Kvb c‡`i wecix‡Z AwaK msL¨K cªv_x© _vK‡j wek¡we`¨vjq KZ…©c¶ cª‡qvR‡b cªv_x©‡`i wjwLZ cix¶v I Mªnb Ki‡Z cv‡i|Ó K_vwU weÁw߇Z D‡j−L _vK‡jI wb‡qvM weÁw߇Z c‡`i msL¨v D‡j−L wQj bv| Ò AwaK msL¨K cªv_x© ZrKvjxb KZ…©c¶ wKfv‡e wePvi K‡i‡Qb welqwU ¯úó bq, d‡j MY wb‡qv‡Mi my‡hvM m„wó nq| weÁw߇Z eq‡mi welqwU D‡j−L Kiv nqwb| ------ gvÎ 20 w`‡bi g‡a¨ GZ wecyj msL¨K Av‡e`bcÎ hvPvB evQvB m¤úbœ K‡i B›UviwfD KvW© cªv_x©‡`i wbKU GZ Aí mg‡qi g‡a¨ wK cªwG“qvq †cŠQvb n‡jv Zv †evaMg¨ bq| ---- †iwRóªvi (fvicªvß) Rbve †gvt kwn`yi ingvb

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

eZ©gvb cªkvm‡bi Kv‡Q 05/02/2004, 06/02/2005, 07/02/2004, 08/02/2004, 09/02/2004, 10/02/2004 I 11/02/2004 Zvwi‡Li Kg©KZ©v wbe©vPbx †ev‡W©i mfvq †h, Kvh© weeiYx Dc¯nvcb K‡ib Zv‡Z Kg©KZ©v wbe©vPbx †ev‡W©i mycvwik (G“wgK 01 †_‡K 12bs cvZvq mycvwik) cª_g cvZvq Ges †kl cvZvq wbe©vPbx †ev‡W©i m`m¨‡`i ¯^v¶i Av‡Q| †fZ‡i 10 wU cvZvq KwgwUi m`m¨‡`i KviI ¯^v¶i/ Bwbwkqvj †bB Ges g~jKwc cªkvm‡bi Kv‡Q n¯—vš—i Kiv nq wbÓ| In this supplementary affidavit-inopposition the University further quoted some portions of the Inquiry Report, which runs as follows: “wek¡we`¨vj‡qi Kg©cwiwa H mgq Ggbfv‡e we¯—„Z nq wb †h, evowZ Kv‡Ri Pvc w`‡Z 49 wU Dc- †iwRóvi I mggv‡bi D”P c`mn 1054 wU bZzb c` m„wói Avek¨KZv wQj| c` m„wói wm×vš— wQj ev¯—eewR©Z I G‡Kev‡iB Abvek¨K| --Z‡e ewb©Z †¶‡Î c` m„wói Rb¨ †Kvb †hŠwI“KZv mnKv‡i ‡Kvb cª¯—ve wefvM/ `dZi †_‡K Av‡mwb Ges c` m„wó msG“vš— KwgwUi mfvi wKsev wmwÛ‡KU cª‡qvRbxqZv/ Avek¨KZv wee…Z K‡i †Kvb wKQy ejv nqwb Ges G msG“vš— AvBbMZ †Kvb cªwG“qvI gvbv nq wb| ---- †Kej ivR‰bwZK D‡Ïk¨ cyi‡bi j‡¶¨ wb‡qvM`v‡bi Rb¨ AcwiKwíZ Ges Acª‡qvRbxqfv‡e Rbej wb‡qvM †`Iqv n‡q‡Q| hvi wek¡we`¨vj‡qi †Kvb Avek¨KZv wQj bv| ----- wm‡bU Øviv Abymgw_©Z RvZxq wek¡we`¨vjq PvKzix mswewa -6 Ges ZrKvjxb wewagvjv 3(18) Gi G“wgK 13‡Z Dc- †iwRóªvi/ mggvb c‡` mivmwi wb‡qv‡Mi †¶‡Î †Kvb weavb wQj bv| ïay c‡`vbœwZi weavb wQj| ------- Dc †iwRóªvi/ mggvb c‡` Kg©KZ©vM‡bi mivmwi wb‡qvM cªwG“qv PvKzix wewa Abyhvqx ˆeaZv AR©b K‡i wb e‡j Z`š— KwgwU cªZ¨¶ K‡ib| wmwÛ‡KU KZ…©K ewnf~©Zfv‡e G wb‡qvM m¤úbœ K‡i‡Q| Acª‡qvRbxq Rbej wb‡qv‡Mi Kv‡j Avw_©K ¶wZ cªvq 150 †KvwU UvKv| -------- wb‡qvM`v‡bi mgq cªviw¤¢K g~j ‡eZ‡bi mv‡_ AwZwiI“ 1 n‡Z 7wU ch©š— BbwG“‡g›U †hvM K‡i †eZb wbav©iY Kivi d‡j Avw_©K ¶wZ n‡q‡Q cªvq 88 j¶ UvKv|Ó 1222 persons were employed from 05.07.2003 to 20.07.2005. Out of them 78 persons were given advance increments . In between November, 2003 to 04.01.2004 , 331 persons were appointed a ad-hoc basis. On the basis of the advertisement dated 05.01.2004

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new 538 persons + those 331 persons in total 869 persons were appointed in different posts.

Thereafter, from March, 2004 to 31.08.2004, 194 persons were appointed on ad-hoc basis.

Those 194 persons on ad-hoc appointees and some other persons, filed application for getting regular appointment on the basis of fake advertisement purported to have been published in the Daily Independent on 15.09.2004 and in the Daily Ajkaler Khabor on 11.09.2004 and they were appointed. From March 2004 to 31.08.2004 some persons were directly appointed to the post of Deputy Registrar/ equivalent post violating the then Statute. Some posts e.g. Senior Programmer, Maintenance Engineer, Assistant Chief Medical Officer, Senior Section Officer, Law Officer, Assistant Section Officer, Senior Assistants were not in existence in the schedule of the Statute at the relevant time but appointments were made. The Inquiry Committee also found that in the 63rd meeting of the Syndicate held on 05.11.2003 although 679 posts were created by tempering the original minutes the same was converted to 938. The University finally stated in the affidavit-inopposition that (a) in the earlier affidavit-inopposition false statements were made and fabricated documents were annexed, (b) minute of 63rd Syndicate meeting was tempered, (c) posts were created in violating the applicable laws/rules and without budget sanction (d) large number of ad-hoc appoint-ment and then substantive appointments were made violating the applicable laws/ rules and without budget sanction causing financial loss, (e) advertisement published in the Daily Sangbad on 05.01.2004 was not a proper advertisement, (f) minutes of Selection Board was tempered, (g) advance increments were given causing financial loss.

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

9. In supplementary affidavit-in-opposition dated 31.01.2012 the respondent No.2 the University stated that the Registrar of the University is the keeper and custodian of all documents of the University under Section 15 of the Act. It was decided in the meeting of Syndicate held on 10.03.2010 that the minutes of 63rd Syndicate meeting containing initials of the Registrar and Deputy Registrar would be treated as correct version. The available agenda of 71st Syndicate meeting as found in the file does not contain the signature of the Registrar.

It contains the initial of the then Vice Chancellor. It has been detected in inquiry that 6 employees managed to get appointments producing fake certificates.

10. The respondent No.4 in his affidavit-inopposition stated that he was Registrar of the National University from 09.03.1992 to 25.02.2004 and he was removed from his office on 25.02.2004. Against which he filed Writ Petition No.1810 of 2004 and obtained Rule and ultimately the said Rule was made absolute. Accordingly, he was reinstated. This respondent as Registrar raised objection to such large scale and unprecedented ad-hoc appointments. For the said reasons, the then ViceChancellor removed him from the post of Registrar.

11. In their affidavit-in-opposition submitted on 12.01.2012 the added respondent Nos. 5-27, 29-110, 112-194, 197-457, 459-466, 486, 576, 595, 596, 600, 604, 632, 636, 701, 917-922, denying all the material allegations contended that the National University is an autonomous Public Body established under National University Act and its appointments are guided by its own laws, rules and regulations. As to the maintenance of quota reservation, these respondents stated that this is a matter of State Policy, and is hence not judicially enforceable.

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Amongst these answering respondents 197 respondents were appointed on temporary/adhoc basis by the Vice- Chancellor. Thereafter they filed applications to get appointment on regular basis in pursuance of the advertisement published in “the Daily Sangbad”, “the Banglabazar Patrika” and “ the News Today” on 05.01.2004. Those 197 respondents who got ad-hoc appointments and 276 others (who are also the respondents as referred above) being fresh applicants applied for appointments to the posts. Issuing interview cards they were invited to appear before the concerned Selection Committee on different dates for interview. The University formed three Selection Committees. These respondents appeared before the concerned Selection Committee for facing interview. The respondent Nos. 5-27, 29-110, 112-115, 267, 285-292, 318 and 917 were amongst the officers, whose appointments were recommended by the concerned selection board. The respondent Nos. 116-194, 196-238, 263, 264, 268-279, 281, 282, 293-217, 319- 351, 354409. 445-448, 463, 464, 876, 595, 596, 600, 604, 918-920 were amongst the third class employees, whose appointments were recommended by the concerned selection committee. The respondent Nos. 240-260, 262, 265, 266, 280, 283, 284, 352, 353, 410-433, 435-443, 448, 490, 451, 453, 455-457, 459461, 463, 464, 466, 653, 701, 921 and 922 were amongst the 4th class employees whose appointments were recommended by the concerned selection board. The Syndicate by its 65th meeting held on 19.02.2004 approved the appointments of the aforesaid officers. The appointments of 3rd class and 4th class employees were given effect after approval of the Vice- Chancellor on 19.02.2004. Their services were subsequently confirmed by the University. There were no illegality or

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

irregularity in the processes of appointments of the added respondents. These respondents by a supplementary affidavit dated 29.1.2012, inter alia, stated that these respondents are not concerned with the appointments made pursuant to the advertisement allegedly published on 15.09.2004 in “The Daily Independent”. The advertisement, under which these respondents have been appointed, was published in the Daily Sangbad on 05.0l.2004.

The advertisement dated 05.01.2004 was genuine one. The allegation that the Annexures-‘3’, ‘6’, ‘6A’, ‘6B’, ‘6D’, ‘6E’, ‘9’, ‘9A’, ‘9C’ and 9D are forged is preposterous. The minutes of all meetings are genuine. The meetings in issue were chaired by the V.C. The minutes signed by the Registrar and Assistant Registrar referred to creation of 609 posts are not genuine. None of the inquiry report referred by the petitioners alleged such forgery. The UGC report dated 6.9.2006 is patently unreliable for the reason that though it was formed pursuant to the decision of the Standing Committee of the Ministry of Education of the 8th Parliament which required the U.G.C. to itself inquire the matter thoroughly. The committee itself decided to proceed solely on the basis of the record of the earlier Inquiry Committee. It has further been stated that it is not legally possible to not press an affidavit. On a prayer, submission and grounds pressed in support of a prayer can be “not pressed”. The inquiry report dated 31.12.2009 makes no allegation with respect to the appointments of these respondents. The University is presently suffering due to lack of manpower stemming from removal of employees. The laws pertaining to the University clearly show that there is no requirement for budgetary provision before creation of posts. The requirement of law is that there must be necessary financial

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provision. Whether there is such financial provision depends upon the judgment of the Post Creation Committee and the Syndicate, both of which include Treasurer, who is charged with looking the finance of the University. It has been mentioned that in 20042005 the University had F.D.R.S. of Tk. 151,70,50,153/- representing investment of its income derived from its own sources. This figure has arisen tk. 342,66,7,494/- as in 20092010. The University does not rely on grants from Government or U.G.C. to meet its revenue expenses. The University has always had adequate financial recourses to meet the additional appointment in issue which was within the knowledge of the posts creation committee and the Syndicate of which the Treasurer was a member. In another supplementary affidavit-in-opposition filed on 06.02.2012 this respondents further contended that the University’s apparent support of the writ petition’s assailing of the selection process of these respondents as undertaken by the Selection Committee between 05.02.2004 to 11.02.2004 in response to the advertisement dated 05.02.2004 against post created in 63rd meeting of the Syndicate on 05.11.2003 is now being affirmed by an individual (Mr.Mollah Mahfuz-Al Hossain), who has been performing the functions of Registrar of the National University as additional charge. He himself was appointed to his current substantive post through self same process. This alone reveals the malafide of National University. The reports referred by the National University have been prepared beyond the back of the respondents. These respondents have not been given any opportunity to show cause or make representation or comments either during preparation of the report or after the reports were prepared. The reports thus violated the

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

principle of Natural Justice and cannot be relied on.

12. In their Affidavit-in –Opposition, the respondent Nos. 283-297, 299-334, 336-405, 410, 411, 444, 417-521, 886-907, 909, 911913, 915 and 916, inter alia contended that Professor Aftab Ahmed joined National University in July, 2003 as the Vice Chancellor. The Government on 21.10.2001 imposed embargo on new appointments in Government, semi Government sectors and in autonomous bodies. The embargo was effective upto 29/12/2003. For that reason all appointments remained stopped for a long period creating backlog of work in the University.

After withdrawal of the embargo to meet exigencies of manpower shortage the then Vice Chancellor (Respondent No.1) had no option but to appoint on Ad-hoc basis under Section 12(10) of the National University Act. These appointments were purely temporary. All other Vice- Chancellors preceding Professor Aftab Ahamed made such type of appointments. For appointment under Section 12(10) of the National University Act, no prior advertisement or examination by any Selection Committee was required. The Syndicate of the University was duly informed of the aforesaid ad-hoc appointments, as was required by law.

Regarding increments given to some appointees, it is stated that Rule 10 of the Service statute empowers the appointing authority to grant one or more increments while fixing their scale of pay. Increments at the time of appointments were granted to a few appointees considering their experience, competence and expertise. With regard to the allegation that many appointees had appointed on the date of appointment or on the following day it is stated that those who had been in service as ad-hoc appointees, after regularization of their service through proper

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advertisement and selection process, received respective letters of appointment and being in the campus joined the posts on the following day or thereafter. As per Provision section 24 (2) of the Act the approval of budget is within the jurisdiction of the Syndicate not the Senate. The budgetary provisions were duly made to pay the salaries of the appointees. The Senate of the University in its 10th session held on 21.10.2004 approved and ratified all the decisions and actions taken by the University regarding creation of posts and appointments .

As per provision of Rule 97 of the Statute-6 Syndicate, on the basis of recommendation made by a committee comprising the Vice Chancellor, Pro-Vice Chancellor and Treasurer, may create or abolish posts of officers and other employees of the University.

During the tenure of Prof. Aftab Ahmad post creation committee recommended for creation of 938 posts of officers and employees by resolution dated 27.10.2003, 101 posts by resolution dated 28.3.2004, 23 posts by resolution dated 13.7.2003, 48 posts by resolution dated 31.08.2004, 31 posts by resolution dated 14.10.2004 and 113 posts by resolution dated 09.02.2005 and 01 post by resolution dated 16.03.2005. In total 1255 posts of officers and employees were proposed to be created by the concerned committee. Before recommendation of creation of any new posts, the concerned committee considers consequential financial liabilities likely to be incurred thereby. The Treasurer, who is responsible for financial management of the University as per section 14(4), (5) and (6) of the National University Act, is a member of the said committee. Hence, the recommendation by the committee for creating a new post is necessarily attached with implied financial sanction. The Syndicate of the University approved those decisions of the Post Creation

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

Committee. Accordingly those posts were duly created. The University authority made public advertisement inviting applications for appointments in 30 posts of officers and employees which were published in national dailies on 05.01.2004. In response to the advertisement, thousands of applicants applied for various posts of officers and employees.

Three selection Boards were constituted one for the officers and one for the third class employees and the rest one for the fourth class employees under the provisions of Statute.

3075 candidates applied for the posts of officers. Some more thousands applied for class III and Class IV posts. The eligible candidates including those respondents appeared before the respective Selection Boards. Those respondents were selected by the Selection Boards in accordance with law.

The respondents did not know about any lapses or illegality in the process of selection. The University Grants Commission (U.G.C.) held two inquiries regarding allegations of illegality and corruption in recruitment during the tenure of the former Vice- Chancellor Professor Aftab Ahmed. The first four member inquiry committee was headed by Professor Dr. K.M. Mohshin, Member, U.G.C. The enquiry committee submitted its report on 22.05.2006.

The second four member inquiry committee was headed by Professor Dr. M. Azaduzzaman, the Chairman of the U.G.C. This committee submitted its report on 03.09.2006. In those inquiries no illegality was found in creation of posts at the relevant period. It is mentioned in the second inquiry report that Post Creation Committee recommended to create 1256 posts . All the respondents got their appointments in permanent posts on the basis of their applications following public advertisement in the daily “Sangbad” on 05.01.2004. All the petitioners had requisite qualifications to get

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employment. None of the respondents were beyond generally accepted age limit. There is no specific allegation against any of the respondents that they got appointments without requisite qualifications and beyond age limit.

These respondents applied for job following public advertisement in the daily Sangbad dated 05.01.2004. The U.G.C. inquiry team noticed that number of required posts and age limit of the applicant were not mentioned in the said advertisement. In consequence there was lack of transparency in recruitment. Such omissions in the said advertisement did not render appointments illegal and void. The U.G.C. in its aforesaid inquires did not find that recruitments were made without prior public advertisement. On the plea of omissions as to non – mentioning of required number of posts and age-limit in the public advertisement dated 5.1.2004, appointments made during the period 17.11.2003 to 31.8.2004 are not liable to be set aside. This respondents by filing supplementary affidavit-in-opposition dated 29.01.2012 further contended that creation of new posts and appointments therein were well provided by appropriate allocations in the budgets and the revised budgets of the National University for the financial years 2002-2003, 2003-2004, 2004-2005, 2005-2006 and 20062007 . In the budget for year 2003-2004 taka 282.98 lac in 2004-2005 taka 100 lac and in 2005-2006 taka 50 lac were allocated for appointments in vacant posts. 127 officers and employees, who got ad-hoc appointments in various posts under section 12(10) of the National University Act before 2002, and continued as such till the advertisement in the daily “Sangbad” dated 5.01.2004, applied along with these respondents for substantive appointment making reference to the aforesaid advertisement. They, along with these respondents, faced the same Selection Boards

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and were recommended these respondents for appointment. They got appointments in various posts as per decision of the 65th meeting of Syndicate held on 19.2.2004. It is strange that nothing is said about the aforesaid 127 officers and employees in the University Grants Commission Reports or in the National University Inquiry Reports. Those appointees are still in service but these respondents stand on same footing with them with respect to creation of posts, advertisement and resolutions of the concerned Syndicate meetings had been put in question which is discriminatory.

13. That the respondent Nos. 710-734, 736878, 880-882, in their affidavit-in-opposition on 26.1.2012, inter alia, contended that in total (89+230)= 319 officers and employees including the respondents got appointment in various permanent posts of Deputy Registrar, Assistant Registrar, Senior Section Officer, Section Officers, Technical Officer, SubTechnical officer, Upper Division Clerk, Lower Division Clerk and MLSS, pursuant to the advertisement published in the daily The Independent on 15.9.2004 and the Bengali daily “‰`wbK AvRKv‡ji LeiÓ on 11.9.2004 with reference to the memo No.01(740) Jati: Bi:/ Prosha:/2004/1/2384 dated 25 Bhadra, 1411/09 September, 2004 issued by the competent authority of the University. Out of 319 appointees, 89 officers and employees, who got ad-hoc appointment before 2001, applied for substantive appointment under the aforesaid advertisement. 195 appointees, who got ad-hoc appointment in the period from March 2004 to September, 2004 (before the advertisement) also applied under the advertisement dated 15.09.2004. The remaining 35 appointees applied afresh with reference to the said advertisement. The disputed advertisement published on 15.9.2004 in the city edition of the daily “The Independent” was not forged.

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The contents of the letters dated 10.02.2007, 04.09.2007 and 09.06.2008 under the signatures of the Managing Director and Advisory Editor respectively of “the Independent” (Annexure- D series to the supplementary affidavit by the added petitioner) denying publication of the said advertisement are not true. Informations supplied by the Bangladesh Press Institute on 02.06.2008, 05.09.2007, and 12.02.2007 (F series to the aforesaid affidavit) regarding the disputed advertisement are not exhaustive. The information dated 27.8.2007 (Annexure G to the said affidavit) is not exhaustive regarding the advertisement. The contents of the letter dated 26.5.2008 are not true. The advertisement was approved by the Vice Chancellor on 09.09.2004 and issued for publication. The advertisement was hung in the notice board of the University. A paper clipping of the daily “Independent” dated 15.09.2004 embracing the disputed advertisement was also posted in the notice board of the University. It was noticed to those who had been serving in the campus of the University as ad-hoc/ temporary appointees. Most of the respondents read the advertisement in the “daily Independent” dated 15.9.2004. They accordingly applied for regularization or permanent appointment in their respective posts. The petitioners were issued interview cards. They faced respective Selection Boards duly constituted for the purpose. The applicants of various posts of officers and employees were interviewed by three separate Selection Boards one for officers, one for 3rd Class employees, and the other for 4th Class employees. The Selection Boards made separate recommendations on 10.10.2004. The Syndicate in its 71st meeting held on 14.10.2004 considered recommend-ations of the Selection Board for officers and recruited

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

some of the respondents in various posts of officers. The respondents, who are 3rd class and 4th class employees, were appointed by the Vice Chancellor on the basis of the recommendations of the respective Selection Boards.

Under Rule 99(ga) of the Service Statute the Vice Chancellor is appointing authority of the 3rd class and 4th class employees according to recommendations by Selection Boards. The respondents possessed requisite qualifications to get employment in their respective posts.

The respondents made applications for jobs in good faith. The respondents did not know about any lapse, irregularity or illegality or violation of recruitment rules allegedly committed by the appointing authority in process of recruitment. The respondents were neither party nor privy to any such alleged irregularities or illegalities in recruitment. 89 officers and employees, who got adhoc appointments in various posts before 2001 and continued in their posts as such till 2004, applied for permanent appointments making reference to the disputed advertisement vide memo No.01(740) Jati: Bi:/ Prosha: 2004/ 1/2384 dated 25 Badra, 1411/09 September, 2004 and the paper clipping of the daily “Independent” dated 15.09.2004 embracing the advertisement. They along with the answering respondents faced the same Selection Boards in the same manner, and were recommended by Selection Boards for permanent appointments in the posts applied for. The recommendations Nos. 21,22, 23, 29, 30 and 31 of the proceedings of the meeting dated 10.10.2004 of the Selection Board for recruitment of officers, and the recommendations Nos.2, 3, 4, 7 and 9 of the proceedings of the meeting dated 10.10.2004 of the Selection Board for recruitment of 3rd class employees and the recommendation No.4 of the proceedings of the meeting dated 10.10.2004 of the Selection

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Board for recruitment of the 4th Class employees dealt with recommendations in respect of those employees who continued as temporary employees since before 2001.

Amongst them who are officers were accordingly appointed in various posts by the Syndicate in its 71st meeting held on 14.10.2004 and 3rd class and 4th class employees were appointed by the Vice Chancellor on the recommendations of the Selection Board. It is strange that the enquiry committees constituted by the respondent University and by the UGC (University Grants Commission) remained conspicuously silent about the above said appointments.

The Senate of the University in its 10th session held on 21.10.2004 approved and ratified all the amendments made in the Service Statute and all the decisions and actions taken by the University authority in creating posts, providing budget and making appointments in those posts. These respondents by filing supplementary affidavit on 29.01.2012 further contended that 60 officers and 29 employees were appointed on ‘adhoc’ temporary basis before 2002 and continued as such till the disputed advertisement in the daily “Independent” dated 15th September, 2004 applied along with these respondents for substantive appointment with reference to the said advertisement and faced the same Selection Boards and got appointment along with the answering respondents. Those officers and employees standing in the similar footings with this respondents are still in service which is discriminatory. This respondents by filing another Supplementary affidavit-in-reply on 30.1.2012 further contending that the advertisement inviting application for employment issued by the National University Authority under Memo No.10(740) Jati: Bi: Prohsa:/ 2004/1/2384 dated 25 Bhadra, 1411/09

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

September, 2004 was published in the daily The Independent, City Edition on 15.09.2004 (3rd Page, left hand side, below the item “ Regret for the interruption of Service” by Grameen Phone). The respondents have collected attested photocopies of the 1st page and the 3rd page of the said daily dated 15.09.2004 from the Archives and National Library of Bangladesh. The said document has been attested by Mr. Md. Abu Zafor, Assistant Director, Directorate of Archives and Library.

14. The respondent No. 885, in his Affidavitin-opposition contended that he did his B.A. examination in Islamic Studies in the Chittagong University and obtained second class in 1991. He obtained first class in M.A. in Islamic Studies in 1993 from the Dhaka University. He joined the Dhaka Women College, Uttara, Dhaka as a lecturer on 20.10.1996, and served therein for a period of more than 7 years. He also served as a lecturer (part time ) in the Asian University of Bangladesh . He has got some publications in Islamic Studies. He has frequent participation in talk shows in electronic media, such as Bangladesh Television, ATN Bangla, Channel I. On 22.04.2004, he was appointed an Assistant Professor on ad-hoc basis in the National University. He was transferred to a post of Senior Assistant Registrar on 28.7.2004. He joined the post on 29.7.2004. On 6.10.2004 an advertisement inviting application in the post of Proctor was published in the daily “News Today” by the University authority. The respondent as an internal candidate applied on 12.10.2004 seeking employment in the said post. He was issued an interview card dated 13.10.2004 to appear before the Selection Board on 19.10.2004. He faced interview. The Selection Board recommended his appointment on 19.10.2004.

The Syndicate of the University in its 72nd

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meeting held on 19.10.2004 accepted the aforesaid recommendation and decided to appoint this respondent in the post of Proctor.

On 20.10.2004, this respondent was sent a letter of appointment in pursuance of which he joined the post on that date. His joining was duly accepted. His service was confirmed by the Syndicate in its 86th meeting held on 06.03.2006, and he was conveyed the decision of confirmation duly. On 10.2.2008 this respondent on transfer was posted as a Deputy Registrar. Taking release from the post of Proctor on 13.02.2008 he joined the post of Deputy Registrar in Charge of Curriculum, Development and Evaluation Center of the University. He has served the post until 11.09.2011 on which date he was discharged from service by way of implementation of the judgment and order dated 23. 8.2011 passed in Review Petition No. 67 of 2010.

15. In affidavit-in-reply by the co-petitioner to the affidavit-in-Opposition filed by added respondent No. 283 and others stated that in affidavit-in-opposition dated 17.1.2012 has been filed on behalf of 257 respondents but only one person, namely the added respondent No.258 Mohammad Abu Hanif Khandoker has sworn the affidavit. He was purported to be appointed on ad-hoc basis on 22.12.2003 as Section Officer, joined in the service on 23.12.2003 and was appointed permanently on 15.2.2004; the CID’s inquiry found this appointment to be made on the basis of false documents (Annexure-10 series to the affidavit -in-Opposition filed by the University). He along with his accomplice were convicted for assaulting a Teacher of the National University and were sentenced to suffer one year imprisonment by the judgment dated 4.8.2011 in Joydevpur P.S. Case No.39(10) 2008. The claim of the added respondent No.258 regarding his competency to swear the affidavit

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

on behalf of 257 other added respondents is misconceived and untenable, since different persons were appointed on different dates and in circumst-ances which are not identical. It has further been stated that the recruitments were made in violation of the Rules prior to the budgetary and financial sanction, no posts having been created without corresponding to budgetary provision; payment of salary to huge number of appointees was illegal; salary was paid to the employees out of Reserve Fund of the University.

In case of 1255 posts concerned, including those relating to the added respond-ents were not created at all in compliance with the conditions of the said rules and were made before budgetary approval and allocation of funds and the creation of posts and were, therefore illegal and void.

16. Mr. Abdur Rab Chowdhury, the learned Senior Advocate appears on behalf of the petitioner. Dr. Kamal Hossain, the learned Senior Advocate with Mr. A.M. Amin Uddin, the learned Advocate appear on behalf of the co-petitioner.

17.

The respondent No. 1 died.

18. Mr. Zafar Ahmed, the learned Advocate, appears on behalf of the respondent No. 2, the National University. Ms. Fawzia Karim, the learned Advocate, appears on behalf of the respondent No. 4. Mr. Rokanuddin Mahmud, the learned Senior Counsel, along with Mr. Mustafizur Rahman Khan, the learned Advocate, appear on behalf of the respondent Nos. 3-27, 29-110, 112-194, 196-457, 459-466, 576, 595, 596, 604, 632, 653, 701 and 917-922.

19. Mr. Rafiq-Ul Huq, the learned Senior Counsel, along with Mr. Khair Ezaz Maswood and Mr. A.Q.M. Shafiullah, the learned Advocates, appear on behalf of the respondent No. 283-297, 299-334, 336-405, 410, 411, 414, 417-521, 886-907, 909, 911-913, 915 and 916.

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They also appeared on behalf of the respondent Nos. 710-735, 736-878, 880 and 881.

20. Mr. Md. Belayet Hossain, the learned Advocate, appeared on behalf of the respondent No. 883.

21. The learned Advocates for the petitioners submit that the respondent No. 1 in a reckless and irresponsible manner, in violation of public policy and applicable laws and regulations, appointed hundreds of people during the tenure of Prof. Aftab Ahmed which are liable to be set aside. They submit that those appointments were made violating the recruitment rules and quota reservation and without having any sanctioned posts and approval of the Senate of the University for additional expenditure in the budget, so those appointments are liable to be declared unlawful. The appointments have been given fraudulently with ill motive and for personal gains and giving several increments in case of some of the appointees. They further submit that no advertisement was made in accordance with law and no written examination was held to select the most efficient, honest and suitable candidates and some of them were regularized considering them as departmental candidates by relaxation of their age and qualifications. They submit that the circular of the Prime Minister’s Office so far the creation of new posts are concerned have not been followed, the creation of new posts were not made in accordance with law, Senate and Syndicate did not approve the proposal of creation of posts in accordance with law. The advertisement dated 05.01.2004 was not made in accordance with the Statute No. 6 of the University and other governmental direction and state policy, the Selection Committee acted arbitrarily and mala fide in selecting the candidates and no appointment letter was issued in accordance with the approved mode

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

of issuance of letters. They submit that the alleged notification inviting applications for appointment published in the “Daily Independent” of its 15.09.2004 issue is fake and fraudulent and the same was detected after holding inquiry by the law enforcing agency as well as the university. Several criminal cases have been filed for such forged and fraudulent advertisement as used for the purpose of appointing and getting appointment in the posts mentioned therein. They also submit that the papers relating to minutes of the Syndicate and minutes of the Selection Committee are fabricated and those have been created subsequently for the purpose of those cases.

Dr. Kamal Hossain, the learned senior counsel, vehenmently submits that even the added respondents in their powers and letters of authorization submitted in this Court took the fraudulent attempt because some of the signatures in the Vokalatnama and letters of authorization appear to have been written in capital letters and by same hand. He submits that the instant appointments were made and the added respondents got their appointments by practicing fraud, so the said appointments are liable to be declared void.

22. The respondent No. 2, the University, in its first affidavit-in-opposition supported the appointments but by subsequent supplementary affidavit-in-opposition the University admitted that in the process of appointment there were irregularities. There was no budgetary sanction for payment of the salaries of the appointees appointed in the newly created posts. The National University did not follow the connecting provisions of laws and Statute-6 in the process of those appointments.

The publication of notification inviting applications in the “Daily Independent” was fake and fraudulent and for that reasons the National University instituted criminal cases

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against the persons who were responsible for such offence. Mr. Zafar Ahmed, the learned Advocate appearing on behalf fo the respondent No.2, National Univeristy, pressed the supplementary affidavit-in-opposition filed by the National University dated 19.01.2012 and 31.01.2012. At the time of hearing of the case Mr. Zafar produced the enquiry report held at the instance of the National University and relied on the report and drew our attention to the illegalities and irregularies as committed by the then administration of the University as detected and found by the Inquiry Committee.

He submits that he has got instruction not to press the affidavit-in-opposition filed by the National University on 27.06.2006.

23. Ms. Fouzia Karim, the learned Advocate appearing for the respondent No. 4, submits that her client, the then Registrar of the University was not, in any way, connected with any sort of illegal or irregular appointment, rather, he was removed from his service by the then Vice Chancellor of the National University and after considerable lapse of time he had been re-instated at the instance of the High Court Division.

24. Mr. Rokanuddin Mahmud, the learned Senior Advocate appearing on behalf of the respondent No. 5 and others, submits that his clients were appointed on the basis of the advertisement published in the “Dainik Sangbad”, “Dainik Banglabazar Patrika” and the “Daily News Today” on 05.01.2004. In pursuance of the advertisement they filed applications for regular recruitment in their respective posts and the Selection Committee finding them suitable for those posts selected their names and after approval of their names by the Selection Committee they were appointed accordingly. The allegation as brought by the petitioners are false and

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

baseless. The appointments were made in accordance with the Act as well as the Service Statute No. 6. There was no violation of any law in the process of such selection. Financial provisions as provided in the Act as well as Rules have been follwed which was subsequently approved by the Senate. He submits that the enquiries by the Grant Commission and the National University were held in absence of the appointees. They were not given any opportunity of being heard by the Enquiry Committees. Thereby principles of natural justice have been violated. He submits that the instant writ petition by way of public interest litigation is not at all maintainable. He submits that although the petitioner No. 2 alleges that the Annexures, being Annexures3, 6, 6-A, 6-B, 6-C, 6-D, 6-E, 9, 9-A, 9-B, 9-C and 9-D, are forged and fabricated but this Court is not the Court to ascertain the genuineness of any document. Those documents are genuine one. None of the enquiry reports referred to by the petitioners alleges such forgery, except for the investigation report dated 11.05.2011. He submits that there was no requirement for budgetary provision before creation of posts.

The financial provision depends upon the judgment of the Post Creation Committee and the Syndicate, both of which include the Treasurer, who is charged with looking after the finances of the University.

25. Mr. Rafiq-Ul Huq, the Senior Counsel, appearing on behalf of the respondent Nos. 283 and others, submits that the University is the proper authority to take any steps against its employees in accordance with law if any employee is appointed in contravention of any law and the Statute. The University, giving the incumbent the opportunity of being heard issuing show cause notice, may take steps to remove its employee. The instant writ petition

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for termination of the employees of a public university on the ground of irregularity in the process of appointments is not at all proper way to take action.

26. Mr. Khair Ezaz Maswood, the learned Advocate, submits that there was a deadlock situation in the administration and in other functions of the University. Prof. Aftab Ahmed, after getting appointment as Vice Chancellor, took several steps to remove the obstructions on the way of smooth functioning of the activities of the University. He submits that considering the enhancement of the number of colleges affiliated by the University and in order to run the functions of the University the then Vice Chancellor felt that without increasing the number of officers and staffs it was difficult to run the functions of the University. Accordingly, on emergency basis he took steps to create the posts. The Post Creation Committee created the posts. To meet up the urgent need the Vice Chancellor, exercising power under section 12(10) of the National University Act, appointed some officers and employees on ad hoc basis.

Thereafter, employment notification was duly published in the National Dailies on 05.01.2004 and hundreds of applicants filed applications following the procedure to get appointment. The Selection Committee, after taking viva voce examination, selected the respondents and after approval of the Senate they got their appointments and had been performing their duties for about 7/8 years.

Thereby they have acquired the vested right to serve the University till the date of their superannuation . He submits that there was budget allocation for newly created posts which was subsequently approved by the Senate. The allegations of forgery as brought by the petitioner are absolutely false. In some cases although increments were given to some

2 LNJ (2013) Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

of the appointees but the law authorized the University to give increments at the time of making appointment in case of experienced and expertise employees. He submits that in pursuance of the order passed by this Court in Review Petition appointments of these respondents have been cancelled but some of the employees, who got appointments in pursuance of the advertisement published on 05.01.2004, are still in service, i.e., in cases of the dealing with the matter the University discriminated these respondents. So far the fake advertisement is concerned. Mr. Ezaz Maswood submits that in publication of the news the newspaper authority sometimes changes the news and advertisement in some cases. Some of the employees seeing the advertisement in the ‘Daily Independent’ and the ‘Ajkaler Khabor’, filed applications and got themselves selected. They are not in any way connected with the alleged publication of the news in the newspapers. Since these respondents had served the University for about 7 years after proper selection, they are entitled to perform their duties till their respective date of superannuation.

27. Mr. Belayet Hossain, the learned Advocate for the respondent No. 883, submits that without giving any opportunity of hearing of the employees initiating a regular proceeding the attempt of termination of employees from their services is violation of law as well as principles of natural justice.

28. We have heard the learned Advocates of both the parties, perused the writ petition, supplementary affidavits, affidavits-in-opposition and supplementary affidavits-in-opposition and other materials on record.

29. Mr. Rokanuddin Mahmud, the learned Senior Counsel, appearing for the respondent Nos. 5 and others, submits that the instant writ

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petition by the petitioners by way of public interest litigation, is not at all maintainable.

30. Their Lordships of the Appellate Division in their judgment and order dated 01.12.2011 have made some observations on this issue which are as follows ; “Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. Public confidence in public administration should not be eroded any further. If there is a buffer Zone unoccupied by the executive which is detrimental to the public interest, judiciary must occupy the field to subserve public interest.

What’s more, the review petitioner stated that he is the Member of Parliament and Chairman of the Parliamentary Standing Committee of the Ministry of Lands, that he is concerned in the welfare of the people of the country including his own locality where the National University is situated, that after hearing the illegalities in the said recruitment process, he felt it necessary to file the review petition for the interest of the public as a public interest petition because the judgment in the writ petition was delivered on the basis of forged documents. Public interest litigation is not meant to be adversarial in nature and is to be a cooperative and collaborative effort of the parties,. The Court exercises its power when it is satisfied that a wrong is done to the public or if it is found violation of human rights. Where the concerns underlying a petition are not individualist but are shared widely by

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

a large number of people or where judicial intervention is necessary for the protection of a public institution or where administrative decision is harmful to the public in general, exercise of jurisdiction is such cases seem to be justified. The writ petitioner as well as the review petitioner made the applications not for personal gain or private profit or political motivation or other oblique consideration.. If the Courts are appraised of gross violation of the National University Act in the process of appointment of staff and employees and when there are complaints of such acts that shocks the judicial conscience, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the palpable illegalities.”

31. Their Lordships further observed, “The review petitioner has sufficient interest in the proceeding of public interest litigation and has locustandi to approach the High Court Division to review the judgment.”

32. In view of the observations made above we do not find any scope to make any further comment so far the maintainability of the writ petition by way of public interest litigation by the petitioners.

33. Their Lordships of the Appellate Division also have made some observations in their judgment which are necessary to keep in mind for disposing the other issues as well, which are : “Fraud and justice never dwell together. The Court of Appeal in Lazarus Estates Ltd. V. Beasley (1956) 1 All ER 341 observed “No court in this land will allow a person to keep an advantage which he has obtained by fraud.. No judgment of a Court, no

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order of a minister, can be allowed to stand if it has been obtained by fraud.

No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.”

34. The original writ petition was filed on 29.08.2004 and rule was issued on 31.08.2004.

The terms of the rule have been quoted above.

35. In supplementary affidavit the petitioners brought allegations against the subsequent appointments made on the basis of the advertisement shown to have been published in the daily ‘Independent’ on 15.09.2004 and in the daily ‘Ajkaler Khabor’ dated 11.09.2012.

No separate rule was sought for on subsequent appointments. By filing supplementary affidavits filed on behalf of the petitioners and in affidavits-in-opposition filed by the respondents, the parties have brought the stories of those appointments on record opposing or supporting such appointments as well.

36. The chronological events relating to appointments of employees as appeared from materials produced in this courts are : 37. On 05.07.2003 Dr. Prof. Aftab Ahmed was appointed in the National University as its Vice Chancellor (He was removed on 20.07.2005). On 27.10.2003, a meeting of Post Creation Committee was held. On 03.11.2003 amended notice having 11 agendas for holding meeting of the Syndicate was issued. On 04.11.2003 notice of supplementary agendas was issued. On 05.11.2003 63rd Meeting of the Syndicate was held. On 17.11.2003, 11 officers and 5 staffs were appointed. On 19.11.2003, 7 officers and one staff were appointed. On 02.12.2003, 14 officers and 11 staffs were appointed. On 23.12.2003, 55 staffs were appointed. On 04.01.2004, 24 officers and

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64 staffs and one teacher were appointed. On 05.01.2004 advertisement was published in the “Daily Sangbad”, the “Banglabazar Patrika” and the “Daily News Today”. On 15.01.2004 64th Meeting of the Syndicate was held in which the ad hoc appointments of 95 officers and 239 staffs were approved. On 05.02.2004, 06.02.2004, 07.02.2004, 08.02.2004, 09.02.2004, 10.02.2004 and 11.02.2004 meetings of the Selection Committee for selection of officers were held. On 02.02.2004, 07.02.2004, 08.02.2004, 09.02.2004 and 10.02.2004 meetings of the Selection Committee for selection of third class employees were held. On 10.02.2004, 11.02.2004, 15.02.2004 meetings of the Selection Committee for selection of 4th class employees were held. On 19.02.2004, 65th meeting of the Syndicate was held in which the appointments were approved. On 28.03.2004, meeting of the Post Creation Committee was again held and some new posts were created.

On 30.03.2004, 66th meeting of the Syndicate was held in which the Syndicate approved the appointments. Again on 13.02.2004 meeting of the Post Creation Committee was held. On 04.08.2004, 69th meeting of the Syndicate was held. Again on 31.08.2004 meeting of the Post Creation Committee was held. On 15.09.2004, the alleged employment notice was published in the daily ‘Independent’. On 20.09.2004, the 70th meeting of the Syndicate was held. On 10.10.2004, meeting of the Selection Committee for selecting the officers was held.

On 14.10.2004 again meeting of Post Creation Committee was held. On the same day the 71st meeting of the Syndicate was held. On 09.02.2005, again a meeting of Post Creation Committee was held and on 17.02.2005 the 76th meeting of the Syndicate was held. Again on 16.03.2005 a meeting of the Post Creation Committee was held. Thereafter some appointments were made.

the University, exercising his power conferred under section 12(10) of the National University Act, appointed them for a period of 6(six) months. Thereafter, pursuant to the advertisement published on 05.01.2004, 979 persons were appointed as officers and staffs of the University. Out of those 979 persons, almost all of ad-hoc appointees who were appointed on ad-hoc basis from 17.11.2003 to 04.01.2004, got them selected and they were appointed accordingly as regular employees of the University. The rest of the appointees were appointed on the basis of the said advertisement afresh. After making advertis-ement on 05.01.2004 for regular appointment the University again started to appoint the employees on ad hoc basis and thereafter on the basis of alleged advertisement published on 15.09.2004 in “The Daily Independent” (the petitioners claimed that the said advertisement was fake ) and in “The Daily Ajkaler Khabor” on 11.09.2004 the University again appointed 174 persons on regular basis. The Vice Chancellor appointed 194 persons on ad hoc basis in between 05.01.2004 and 31.08.2004.

From the date of appointment of Prof. Aftab Ahmed till the date of his removal on 20.07.2005 in total 1222 officers, staffs and teachers were appointed.

38. In between 17.11.2003 and 05.01.2004, i.e., within 49 days, 97 officers and 251 staffs got their appointments on ad-hoc basis in the National University. The Vice Chancellor of

12(3) fvBm- P¨v‡Ýji GB AvBb, mswewa Ges wek¡we`¨vjq †i¸‡jk‡bi weavb wek¡¯—Zvi mwnZ cvj‡bi

39. It is pertinent here to quote the relevant provisions of the Act and the Statute of the University so far the appointment of employee of the University are concerned.

Section-6 6| GB AvBb Ges AW©vi Gi weavb mv‡c‡¶, wek¡we`¨vj‡qi wbæewY©Z ¶gZv _vwK‡e, h_vt(U) wek¡we`¨vj‡q wk¶K Ges Ab¨vb¨ c` cªeZ©b Kiv Ges mswewai weavb Abymv‡i GB mKj c‡` wb‡qvM `vb Kiv; Z‡e kZ© _v‡K †h, cª‡qvRbxq Avw_©K ms¯nvbRwbZ e¨e¯nv m¤úbœ nIqvi cy‡e© †Kvb c` cªeZ©b Kiv hvB‡e bv |

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

wbðqZv weavb Kwi‡eb Ges GB D‡Ï‡k¨ cª‡qvRbxq ¶gZv cª‡qvM Kwi‡Z cvwi‡eb| 12(10) fvBm- P¨v‡Ýji A¯nvqxfv‡e Ges mvavibZt AbwaK Qq gv‡mi Rb¨ AavvcK e¨ZxZ wek¡vwe`¨vj‡qi Ab¨vb¨ wk¶K, Kg©KZ©v I Kg©Pvix wb‡qvM Kwi‡Z cvwi‡eb Ges GB wb‡qv‡Mi wel‡q wmwÛ‡KU‡K AewnZ Kwi‡eb| 14(4) †U«Rvivi wek¡we`¨vj‡qi Znwe‡ji mvwe©K ZI¦veavb Kwi‡eb Ges Bnvi A_© msG“vš— bxwZ m¤ú‡K© civgk© `vb Kwi‡eb| (5) †U«Rvivi, wmwÛ‡K‡Ui wbqš¿b mv‡c‡¶, wek¡we`¨vj‡qi m¤úwË I wewb‡qvM Z`viK Kwi‡eb Ges wZwb evrmwiK ev‡RU Ges wnmve weeiYx Dc¯’vc‡bi Rb¨ `vqx _vwK‡eb| (6) †h Lv‡Zi Rb¨ A_© gÁyi ev eivÏ Kiv nBqv‡Q †mB Lv‡ZB †hb Dnv e¨q nq Zvnv †`Lvi Rb¨ †U«Rvivi, wmwÛ‡K‡Ui ¶gZv mv‡c‡¶, `vqx _vwK‡eb| 21| GB AvBb I AW©vi Gi weavb mv‡c‡¶, wm‡bU-

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(T) GKv‡WwgK KvDw݇ji mycvwikG“‡g wek¡we¶vj‡qi wk¶K I M‡elK‡`i c` m„wó, we‡jvc I mvgwqKfv‡e ¯nwMZ Kwi‡Z cvwi‡e; Z‡e kZ© _v‡K †h, †Kvb c‡`I Rb¨ Avw_©Z ms¯nvb nBevi c~‡e© Dnv m„wó Kiv hvB‡e bv| (U) GB AvBb I msweavb mv‡c‡¶, fvBm- P¨v‡Ýji, †cªv-fvBm – P¨v‡Ýji I †U«Rvivi e¨ZxZ wek¡we`¨vj‡qi mKj wk¶K, Kg©KZ©v I Kg©Pvix wb‡qvM, Zvunv‡`i `vwqZ¡ wba©viY I PvKzixi kZ©vejx w¯ni Ges Zvunv‡`i †Kvb c` A¯nvqxfv‡e k~Y¨ nB‡j †mB c` c~i‡bi e¨e¯nv MªnY Kwi‡Z cvwi‡e ; (V) wm‡bU Gi Aby‡gv`b mv‡c‡¶, mswewa cªYqb, ms‡kvab I evwZj Kwi‡Z cvwi‡e; 31(4) A_© KwgwU(K) wek¡we`¨vj‡qi Avq I e¨‡qi ZI¦veavb Kwi‡e;

(K) wmwÛ‡KU KZ…©K cª¯—vweZ mswewa Aby‡gv`b, ms‡kvab I evwZj Kwi‡Z cvwi‡e;

(L) wek¡we`¨vj‡qi A_©, Znwej, m¤ú` I wnmve wbKvk msG“vš— hveZxq wel‡q wmwÛ‡KU‡K civgk© `vb Kwi‡e ;

(L) wmwÛ‡KU KZ…©K †ckK…Z evwl©K cªwZ‡e`b, evwl©K wnmve Ges evwl©K m¤¢ve¨ e¨‡qi cª¯—ve we‡ePbv I wm×vš— MªnY Kwie;

34|(1) GB AvB‡bi D‡Ï‡k¨ c~iYK‡í miKvi A_ev Kwgkb wek¡we`¨vjq‡K cªwZ ermi cª‡qvRbxq A_© gÁyix cª`vb Kwi‡e|

(M) GB AvBb I mswewa Øviv Awc©Z Ab¨vb¨ ¶gZv cª‡qvM I `vwqZ¡ cvjb Kwi‡e;

(2) miKvi ev Kwgk‡bi gÁyix I wek¡we`¨vj‡qi wbR¯^ Drm nB‡Z cªvß m¤ú` mxgvi g‡a¨ wek¡we`¨vjq Dnvi evwl©K ev‡RU cª¯—Z Kwi‡e|

24| (1) wmw›W‡KU wek¡we`¨vj‡qi cªavb wbe©vnx ms¯nv nB‡e Ges AvBb ev AW©vi Gi weavb Ges fvBm-P¨v‡Ýji I KZ…c © ¶ Gi Dci Awc©Z ¶gZv mv‡c‡¶, wek¡vwe`¨vj‡qi mKj wG“qvKjvc Ges Avw_©K welqvejxi Dci mvaviY e¨e¯nvcbv Ges wek¡we`¨vj‡qi wk¶K, QvÎ, Kg©KZ©v I Kg©Pvix‡`i Dci ZI¦veav‡bi ¶gZv ivwL‡e| (2) Dc-aviv (1) Gi Aax‡b cª‡qvM‡hvM¨ ¶gZv I mvgwM«KZv ¶zYœ bv Kwiqv wmwÛ‡KU we‡klZt(K) wek¡we`¨vj‡qi m¤úwË AR©b I Znwej msMªn Kwi‡e, Dnv AwaKv‡i ivwL‡e Ges wbqš¿Y I cwiPvjbv Kwi‡e; (M) Kwgkb nB‡Z cªvß gÁyix I wbR¯^ Drm nB‡Z cªvß Av‡qi mwnZ mvgÄm¨ ivwLqv, wek¡we`¨vj‡qi ev‡RU we‡ePbv I Aby‡gv`b ;

(3) e¨q wewa I Avw_©K e¨e¯nvcbv m¤ú‡K© Kwgkb KZ…©K cª`Ë civgk© wek¡we`¨vjq gvwbqv Pwj‡e| (4) wek¡we`¨vjq Kwgkb‡K Dnvi Pvwn`v †gvZv‡eK Z_¨, cªwZ‡e`b I cwimsL¨vb mieivn Kwi‡e| 35| wek¡vwe`¨vj‡qi evwl©K cªwZ‡e`b wmwÛ‡K‡Ui wb‡`©k I ZI¦veav‡b cªbxZ nB‡e GescieZx© wk¶v e‡l©i 31 Rvbyqvix Zvwi‡L ev Zrc~‡e© Dnv Kwgk‡bi wbKU †ck Kwi‡Z nB‡e| 36| wek¡we`¨vj‡qi evwl©K wnmve I e¨vjvÝ kxU wmwÛ‡K‡Ui wb‡`©k Abymv‡i cª¯—Z Kwiqv Kwgk‡bi wbKU †ck Kwi‡Z nB‡e|

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45| (1) GB avivq ewb©Z c×wZ‡Z wmwÛ‡KU mswewa cªYqb, ms‡kvab ev evwZj Kwi‡Z cvwi‡e|

MªnY‡hvM¨ nB‡e bv| Z‡e wb‡qvMKvix KZ…©c¶ `vßwiK fzj ms‡kvaY Kwi‡Z cvwi‡e|

(2) Zdwm‡j ewb©Z wek¡we`¨vj‡qi cª_g mswewa P¨v‡Ýj‡ii Aby‡gv`b e¨ZxZ ms‡kvab ev evwZj Kiv hvB‡e bv|

(6) cª_g wb‡qv‡Mi †¶‡Î ¯^v¯n¨MZ WvI“vix mb` e¨wZ‡i‡K †Kvb e¨wI“‡K ¯nvqx c‡` ev¯—efv‡e wb‡qvM Kiv hvB‡e bv| GB mb`cÎ PvKzix‡Z †hvM`v‡bi mgq `vwLj Kwi‡Z nB‡e|

(3) wmwÛ‡KU KZ…©K cª¯—vweZ mKj mswewa Aby‡gv`‡bi Rb¨ wm‡bU mgx‡c †ck Kwi‡Z nB‡e Ges mswewai cª¯—ve †cªi‡Yi Qq gv‡mi g‡a¨ Dnvi Aby‡gv`b cvIqv bv †M‡j A_ev GB mg‡qi g‡a¨ Dnv †diZ cvVvb bv nB‡j Dnv wm‡bU KZ…©K Aby‡gvw`Z ewjqv Mb¨ nB‡e| (4) wmwÛ‡KU KZ…©K cª¯—vweZ mswewa wm‡bU KZ…©K Aby‡gvw`Z ev Aby‡gvw`Z ewjqv MY¨ bv nIqv ch©š— Dnvi †Kvb Kvh©KvwiZv _vwK‡e bv | The Statute-6 of the National University Employees Services provided the following provisions which are relevant in connection with appointment of employee.

4| PvKzixi mvaviY kZ©vejxt wewa Øviv Abyi“c †Kvb weavb Kiv bv nB‡j wek¡we`¨vj‡qi PvKzix‡Z cª‡e‡ki †¶‡Î KZ…©c¶ KZ…©K wba©vwiZ eqmmxgv cªwZwU c‡` mivmwi wb‡qv‡Mi †¶‡Î cª‡hvR¨ nB‡e| (1) gywI“‡hv×vi mš—vbM‡bi eqmmxgv miKvi KZ…©K wba©vwiZ eqmxgvi Abyi“c nB‡e| (2) †Kvb c‡` cª_g wb‡qv‡Mi mgq cª‡Z¨K e¨wI“‡K L„xóxq mvj Abyhvqx Mªnb‡hvM¨ cªgvbvw`, †hgb, gva¨wgK ¯Kyj mvwU©wd‡KU , Rb¥ msG“vš— †cŠimfvi mb`cÎ Ges GBi“c Ab¨vb¨ mb` c‡Îi wfwˇZ Rb¥ ZvwiL †NvlYv Kwi‡Z nB‡e| (3) eqm wbY©‡qi †¶‡Î Gwd‡WwfU MªnY‡hvM¨ nB‡e bv| (4) wewa‡Z Ab¨ wKQy D‡j−L bv _vwK‡j KZ…©c¶ hvnvi wb‡qv‡Mi ¶gZv cªvß nBqv‡Qb Zvunvi we‡kl †¶‡Î wjwLZfv‡e KviY D‡j−Lc~e©K eq‡mi Da©mxgv wkw_j Kwi‡Z cvwi‡eb| (5) PvKzix‡Z cª‡e‡ki mgq Av‡e`bKvix KZ…©K eqm m¤ú‡K© cª`Ë †Nvlbv Kg©Pvixi ‡¶‡Î Aek¨ cvjbxq ewjqv we‡ewPZ nB‡e Ges †h †Kvb D‡Ï‡k¨ cieZx© mgq GBi“c †Nvlbv †Kvb cybwe©‡ePbv

c` m„w®U, wb‡qvM, c‡`vbœwZ Ges †R¨®VZv wba©vib Kivi bxwZgvjv 95| wb‡qvMKvix KZ©„c¶ t (1) fvBm P¨v‡Ýji, ‡cªv-fvBm-P¨v‡Ýji I †U«Rvivi e¨ZxZ wek¡we`¨vjq-AvBb I mswewai weavb mv‡c‡¶, mKj wk¶K , Kg©KZ©v I Kg©Pvix wb‡qvM, Zvnv‡`i `vwqZ¡ wba©viY I PvKzixi kZ©vejx w¯ni Ges †Kvb c` k~b¨ nB‡j †mB c` cyi‡Yi e¨e¯nv wmwÛ‡KU Mªnb Kwi‡Z cvwi‡eb | (2) mKj c‡` wb‡qvM`v‡bi D‡Ï‡k¨ wmwÛ‡KU/fvBmP¨v‡Ýj‡ii Av‡`kG“‡g wek¦we`¨vj‡qi †iwR¯U«vi `iLv¯Z Avnevb I Mªnb Ges Dnvi Dci cª‡qvRbxq e¨e¯nv MªnY Kwi‡eb| 96| c` m„wó, msi¶Y I we‡jvct A¨vKv‡WwgK KvDw݇ji mycvwikG“‡g wek¡we`¨vj‡qi wk¶K I M‡el‡Ki c` Ges fvBm-P¨v‡jÝi , †cªv-fvBm P¨v‡jÝi Ges †U«Rvi m¤^wjZ MwVZ KwgwUi mycvwikG“‡g wmwÛ‡KU Kg©KZ©v I Ab¨vb¨ c` m„wó msi¶Y I we‡jvc Kwi‡Z cvwi‡eb| Z‡e kZ© _v‡K †h, †Kvb c‡`i Rb¨ cª‡qvRbxq Avw_©K ms¯nvb e¨wZZ c` m„wó Kiv hvB‡e bv| AviI kZ© _v‡K †h, m„ó c` `xN© w`b k~Y¨ _vwK‡j Dnvi cª‡qvRb bvB we‡ePbv Kwiqv wmwÛ‡K‡Ui Aby‡gv`bG“‡g Dnv we‡jvc Kiv hvB‡e| 97| wek¦we`¨vj‡qi Kg©Pvix‡`i wb‡qvM c×wZt 1| Zdwm‡j ewY©Z weavbvejx mv‡c‡¶, †Kvb c‡` wbæewY©Z c×wZ‡Z wb‡qvM `vb Kiv hvB‡e, h_vt (K) mivmwi wb‡qv‡Mi gva¨‡g (L) c‡`vbœwZi gva¨‡g (M) †cªl‡Y, (N) PzwI“ wfwˇZ (O) LÛKv‡ji wfwˇZ

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Md. Fazle Rabbi Mia Vs. Professor Aftab Uddian Ahmed and others (Hasan Foez Siddique, J.)

(P) GWnK wfwˇZ , (2) †Kvb c‡` wb‡qv‡Mi Rb¨ †Kvb e¨wI“i cª‡qvRbxq †hvM¨Zv bv _vwK‡j Ges mivmwi wb‡qv‡Mi †¶‡Î Zvnv eqm DI“ c‡`i Rb¨ KZ…©c¶ wba©vwiZ eqmmxgvi g‡a¨ bv _vwK‡j Zvnv‡K DI“ c‡` wb‡qvM Kiv hvB‡e bv| Z‡e kZ© _v‡K †h, AvB‡bi 12 avivi 10 Dc-aviv e‡j wb‡qvMK…Z †Kvb e¨wI“ A_ev †Kvb e¨wI“‡K †Kvb c‡` GWnK wfwˇZ B‡Zvc~‡e© wb‡qvM Kiv nBqv _vwK‡j DI“ c‡` Ae¨vnZfv‡e wbhyI“ _vKvKv‡ji Kvh©¨Kjv‡ci Rb¨ Zvunvi m‡ev©”P eqmxgv Ges †hvM¨Zv wkw_j Kiv hvB‡Z cv‡i| Z‡e AviI kZ© _v‡K †h, wmwÛ‡K‡Ui Aby‡gv`bG“‡g †Kvb we‡kl c‡`i cªv_x©M‡Yi †¶‡Î eqmmxgv wkw_j Kiv hvB‡e| (3) PzwI“‡Z ev wb‡qvMc‡Î wbw`©ófv‡e Dwj−wLZ †Kvb welq e¨ZxZ Ab¨ mKj wel‡q GKRb Kg©Pvixi PvKzixi kZ©vejx GB mswewa Øviv wbqwš¿Z nB‡e Ges GB mswewagvjv DI“ PzwI“ ev wb‡qvMcÎmn hyI“fv‡e GKRb Kg©Pvixi PvKzixi mKj kZ©vejx wba©viY Kwi‡e| GB mswewa I Zdwm‡ji weavb Ges PzwI“ ev wb‡qvMc‡Îi wbw`©ó kZ© ci¯ci- we‡ivax nB‡j PzwI“ ev †¶ÎgZ wb‡qvMc‡Îi kZ Kvh©Ki nB‡e| 98| cªv_x© wbe©vPb c×wZt †Kvb c‡` mivmwi ev c‡ÏvbœwZi gva¨‡g wb‡hvM`v‡bi D‡Ï‡k¨ wek¡we`¨vj‡qi cª_g mswewai cÂg aviv Abyhvqx MwVZ wbe©vPbx †evW©mg~‡ni gva¨‡g cªv_©x wbe©vPb Kwi‡Z nB‡e|

(K) Z…Zxq †kªbxi Kg©Pvixi‡`i wb‡qv‡Mi Rb¨ MwVZ KwgwUt 3q †kªbxi Kg©Pvix‡`i c‡` wb‡qv‡Mi Rb¨ wbg¥ewb©Z m`m¨ mgb¡‡q wbe©vPbx KwgwU MwVZ nB‡et (1) fvBm- P¨‡Ýji KZ©K g‡bvbxZ GKRb †cªv-fvBm- P¨v‡Ýji / †UzRvivi whwb Dnvi †Pqvig¨vb nB‡e| (2) wmwÛ‡KU KZ…©K g‡bvbxZ `yB Rb m`m¨| (3) ‡iwR÷«vi (4) K‡jR cwi`k©K/cix¶v wbqš¿b/cwiPvjK (A_© I wnmve) /cwiPvjK)cwiKíbv I Dbœqb) (5) ms¯nvc‡bi `vwq‡Z¡ wb‡qvwRZ †iwR÷«vi KwgwUi mwP‡ei `vwqZ¡ Kwi‡eb|

Dccvjb

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(L) PZz_© †kªbxi Kg©Pvix‡`i wb‡qv‡Mi Rb¨ MwVZ KwgwUt PZz_© †kªbxi Kg©Pvix wb‡qv‡Mi †¶‡Î fvBm P¨v‡Ýji cª‡qvRb Abyhvqx KwgwU MVb Kwi‡eb| UxKvt wbe©vPbx †evW© wZbRb m`‡m¨i Dcw¯nwZ‡Z †Kvivg nB‡e| (M) wbe©vPbx KwgwUi mycvwi‡ki wfwˇZ fvBmP¨v‡Ýji Aby‡gv`bG“‡g Dnv Kvh©Ki nB‡e| 99| mivmwi wb‡qvM(1) †Kvb e¨wI“ †Kvb c‡` mivmwifv‡e wb‡hvM jv‡fi Rb¨ DchyI“ we‡ewPZ nB‡eb bv, hw` wZwb , (K) evsjv‡`‡ki bvMwiK bv-nb| Z‡e wk¶KZvi c‡` evsjv‡`‡ki bvMwiK bv nB‡jI wb‡qvM Kiv hvB‡e|

(2) †Kvb c‡` mivmwifv‡e wb‡qvM Kiv hvB‡e bv, †h ch©š— bv(K) DI“ c‡` wb‡qv‡Mi Rb¨ wbe©vwPZ e¨wI“‡K wek¡we`¨vjq KZ…©K GZ`y‡Ï‡k¨ MwVZ wPwKrmv- ch©` ev wPwKrmv Kg©KZ©v Zvnv‡K ¯^v¯n¨MZfv‡e DI“ c‡`i `vwqZ¡ cvj‡bi DchyI“ ewjqv cªZ¨qb K‡ib, (L) GBic wbe©vwPZ e¨wI“i PwiÎI, c~e©-Kvh©Kjvc h_v‡hvM¨ G‡RÝxi gva¨‡g cªwZcvjb KivB‡Z nB‡e Ges wek¡we`¨vj‡qi PvKzix‡Z wb‡qvM jv‡fi Rb¨ wZwb AbychyI“ b‡nb g‡g© KZ…©c¶‡K wbwðZ nB‡Z nB‡e| (3) mivmwi wb‡qv‡Mi †¶‡Î Zdwm‡j ewb©Z weavb Abyvhqx mKj c‡` Db¥yI“ weÁvc‡bi gva¨‡g `iLv¯— Avnevb Kwiqv DI“ c` c~iY Kiv nB‡e Ges GBi“c wb‡qvM`v‡bi †¶‡Î, miKvi KZ…©K mgq mgq RvixK…Z †KvUv m¤úwK©Z wb‡`©kvejx AbymiY Kwi‡Z nB‡e| 4| RvZxq wek¡we`¨vj‡qi 1992 m‡b 37 b¤^i AvB‡bi 12(10) aviv Abyhvqx fvBm-P¨v‡Ýji A¯nvqxfv‡e Ges mvaviYZt AbwaK 6 gv‡mi Rb¨ Aa¨vcK e¨ZxZ wek¡we`¨vj‡qi Ab¨vb¨ wk¶K, Kg©KZ©v I Kg©Pvix wb‡qvM Kwi‡Z cvwi‡eb Ges GB wb‡qv‡Mi wel‡q cieZx© wbqwgZ ˆeVK wmwÛ‡KU‡K AewnZ Kwi‡eb| 40. Those are the relevant provisions to appoint employee in the service of the University.

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41. It is also be relevant here to quote the constitutional provision relating to equlity of opportunity in public employment.

be ineligible for, or discriminated against in respect of any employment or office under the State.

42. Art. 29(1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.

(3) Nothing in the article shall prevent parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office ( under the Government of , or any local or other authority within, a State or Union tenitory, any requirement as to residence within that State or Union territory) prior to such employment or appointment.

2) No citizen shall, on grounds only of religious, race, caste, sex or place of birth, ineligible for, or discriminated against in respect of, any employment of office in the service of the Republic.

(3) Nothing in this article shall prevent the State from (a) Making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b) Giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination. (c) Reserving for members of one sex any class of employment of office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.

43. Corresponding provision in the constitution India is Article 16 which runs as follows:16. Equality of opportunity in matters of Public employment“(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds of religious, race caste, sex, descent, place of birth, residence or ay of them

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the Services under the State.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection which the affairs of any religious or denominational institution or any member of the Governing Body thereof shall be a person professing a particular religion or belonging to a particular denomination�

44. In case of public employment it is absolutely essential that the best and finest talent should be drawn in the administration.

The officers and employees of the university must be composed of the persons who are honest, upright and independent and who are not awaked by the political winds blowing in the country. The selection of the employees of the University must therefore be made strictly on merit keeping in view various factors which go to make a strong efficient and public oriented administration.

45. First submission of the learned Advocates for the petitioner is that there was no money

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sanctioned in the budget in the financial years 2003-2004 and 2004-2005 for against newly created posts. In absence of budgetary sanction for new posts appointments and payment of salaries of the new appointees were unlawful.

2 LNJ (2013)

46. The learned Advocates for the respondents relied on annexures 35, 35A, 35B, 35C, the extracts of the budget in the years 2003-2004, 2004-2005, 2005-2006 and 20062007 and submit that in financial years 20032004 Tk. 283.98 lac, in 2004-2005 Tk. 100 lac and in 2005-2006 Tk. 50 lac were allocated for appointments in the vacant posts. Mr. Rokanuddin Mahmud submits that there is no requirement of law for budgetary provision before creation of posts. The requirement of law is that there must be necessary financial provision which depends upon the judgment of the Post Creating Committee and Syndicate to which includes Treasurer who is charged with looking after the finance of the University. The University has/had adequate financial resource to meet the additional payment in issue.

48. Those provisions clearly show that Treasurer of the University, after preparation of budget will put the same before the Syndicate and the Syndicate will consider and approve the same. Section 21 provided that the Senate would consider and take decision about the yearly financial statement. Section 21 (L) saysÒwmwÛ‡KU KZ…©K †ckK…Z evwl©K cªwZ‡e`b, evwl©K cªwZ‡e`b, evwl©K wnmve Ges evwl©K m¤¢ve¨ ev‡qi cª¯—ve we‡ePbv I wm×vš— Mªnb Kwi‡e|Ó The money allocated in the budget shall be spent for the purpose allocated and the Treasurer would ensure the same. A report of expenditure and financial management shall be submitted before the University Grant Commission. Rule 96 of the Service Statute also provided to effect “---Z‡e kZ©_v‡K †h, †Kvb c‡`i Rb¨ cª‡qvRbxq Avw_©K ms¯nvb e¨ZxZ c` m„wó Kiv hvB‡e bv|Ó In view of those specific provisions in the Act and Statute 6 it is difficult for us to accept the submission of Mr. Mahmud that there is no requirement of law for budgetary provision before creation of new posts.

47. Section 6(U) of the Act authorizes the University to create new posts and make appointment in newly created posts but there is a condition which is “cª‡qvRbxq Avw_©K ms¯nvbRwbZ Avw_©KRwbZ e¨e¯nv m¤úbœ nIqvi c~‡e© †Kvb c` cªeZ©b Kiv hvB‡ebvÓ | Section 34 (7) of the Act saysÒmiKvi ev Kwgk‡bi gÁyix I wek¡we`¨vj‡qi wbR¯^ Drm nB‡Z cªvß m¤ú` mxgvi g‡a¨ wek¡we`¨vjq Dnvi evwl©K ev‡RU cª¯ZzZ Kwi‡e|Ó Section 14(6) says- Ò†h Lv‡Zi Rb¨ A_© gÁyi ev eivÏ Kiv nBqv‡Q †mB Lv‡ZB †hb Dnv e¨q nq Z‡e Zvnv †`Lvi Rb¨ †U«Rvivi , wmwÛ‡K‡Ui ¶gZv mv‡c‡¶, `vqx _vwK‡eb|Ó Syndicate of the University would approve the budget Section 24 (2) (M) says - ÒKwgkb nB‡Z cªvß gÁyix I wbR¯^ Drm nB‡Z cªvß Av‡qi mwnZ mvgÄm¨ ivwLqv, wek¡we`¨vj‡qi ev‡RU we‡ePbv I Aby‡gv`b|Ó Section 31 (4) says - ÒA_© KwgwU (1) wek¡we`¨vj‡qi Avq I e¨‡qi ZI¦eavb Kwi‡eÓ| Section 36 says Òwek¡we`¨vj‡qi evwl©K wnmve I e¨vjvÝkxU wmwÛ‡K‡Ui wb‡`©k Abymv‡i cª¯—Z Kwiqv Kwgk‡bi wbKU †ck Kwi‡Z nB‡e|Ó

49. To answer this issue Mr. Khair Ezaz Masud relying upon the Annexures - 35, 35A, 35B, 35C of the affidavit-in-opposition, i.e. extract of the budgets for the financial years 2002-2003, 2003-2004, 2004-2005 and 20052006 submits that there were money allocated for payment of salaries of the employees appointed in the newly created posts in those budgets. On perusal of those documents it appears that the amounts as mentioned above were allocated in those financial years against the vacant posts not against the post created newly. There is difference between vacant post and newly create post. Vacant post means post unfilled. That is, post is there but for the time being the same is fallen vacant. But newly created posts means to bring the posts into existence. The word “create” in legal terminology means to bring into being. Those amounts were sanctioned for the payment of salaries against vacant posts not for newly created posts.

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

7

HIGH COURT DIVISION (CRIMINAL APPELLATE JURISDICTION)

substance was thrown on the person of victim or the victim succumbed to injuries caused by acid or other corrosive substance. } Md. Abu Tariq, J. Md. Ilias Hossain Thus the offence, committed by convict, } and others.

And appellants, does not come within the ...Petitioners mischief of section 4(1) of the said Ain but it M. Enayetur Rahim, J. } Vs. attracts section 4(2) (kha) of the Ain of 2000.

Judgment } Accordingly, the conviction and sentence State 24.02.2011. ...Respondent was modified and the appellants were } convicted under section 4(2) (kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 Code of Criminal Procedure (V of 1898) and sentenced for rigorous imprisonment Section 164 for 10 years with a fine of Tk. 20,000.00 in Evidence Act (I of 1872) default to suffer imprisonment for one year Section 8 more. The appellants will get benefit of ‌(42, 43 & 52) The pws. 13 and 14 proved the seizer list by section 35A, Cr. P.C. which various apparels of the victim and Mr. Zahirul Islam, Advocate other goods were seized and such evidence --For the petitioner also corroborated the confessional statem- Mr. Md. Nurul Haque, Asstt. Attorney General with ents of the convict persons that acid was Mr. Kazi Ebadot Hossain, Asstt. Attorney General thrown on the persons of the victims. ..(32) ‌.For the respondent Code of Criminal Procedure (V of 1898) Sections 35A and 164 Nari-o-Shishu Nirjaton Daman Ain (VIII of 2000) Section 4(1) (2) (kha) From the confessional statement of convict Md. Shamsuzzaman alias Bipu it appears that he admitted with the aid of the present convict-appellants, he threw acid on the persons of the victims but he did not mention with an intention to kill victim Rehana. The prosecution failed to bring any other evidence proving that in order to kill Rehana, convict Md. Shamsuzzaman threw acid on her person. To convict an accused under section 4 (1) of the said Ain of 2000 the prosecution has to prove that with an intention to kill, acid or other corrosive Criminal Appeal No. 2254 of 2003.

Judgment M. Enayetur Rahim, J:

This appeal is directed against the judgment and order of conviction and sentence dated 20.05.2003 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Chandpur in Nari-O-Shishu Nirjatan Daman Case No.43 of 2000 convicting the appellants under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentencing them to suffer imprisonment for life with a fine of Tk.1,00,000/- in default to suffer rigorous imprisonment for 3 (three) years more.

2. The prosecution case, in short, is that P.W-3, victim-Rehana Akhter alias Bina is

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J.)

the daughter of P.W-1, Md. A. Hai Bhuiyan and Rehana Akhter was a student of Class XII of Galluk Adarsha College at the relevant time; some unknown persons used to send letters to Rehana Akhter offering love and taking account of that situation P.W-1 decided to give marriage to Rehana Akhter with one Imam Hossain; hearing about the settlement of the said marriage Imam Hossain was also threatened by some young men, who asked him not to marry Rehana Akhter; on 11.08.2000 at the evening P.W-3 Rehana Akhtar and her younger daughter P.W-4 Sultana Rajia while had been studying, at their room, P.W-5 Shahadat Hossain alias Roni, younger brother of them, came to that room and asked them to have their dinner; at that time at about 10.15 P.M a youngman threw acid through the eastern side window of the room aiming them and thereafter fled away. As a result, P.W-3 Rehana Akhter, P.W-4 Sultana Rajia and P.W-5 Shahadat Hossain received serious burn injuries on the different parts of their persons. Hearing the alarm of them the informant and P.W-2 Most. Shahanaz Begum, the wife of the informant, came to the place of occurrence and then the victims were taken to Chandpur Sadar Hospital; after getting primary treatment at Chandpur Sadar Hospital they were admitted in burn unit of Dhaka Medical Collage Hospital. When the said victims were under treatment, the P.W-1 on 13.08.2000 lodged a First Information Report with the police station.

3. On the basis of the First Information Report lodged by the P.W-1, the police

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started a case and its investigation. Police arrested the present convict-appellant and three others namely, Md. Ilias Hossain, Md. Monir Hossain and Md. Mamun Mirza. All the above four accused persons eventually made statement under Section 164 of the Code of Criminal Procedure before P.W-10 A. B. M Abdul Fattah, Magistrate 1st Class, confessing their guilt. The investigating officer on completion of the investigation submitted charge sheet against the said accused persons under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2000.

4. The case being ready for trial all the charge sheeted accused persons put on trial before the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Chandpur. The learned Tribunal framed charges against the all charge sheeted accused persons under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain, to which they pleaded not guilty and claimed to be tried.

5. At the time of the trial the prosecution in all examined 21 (twenty one) witnesses to prove its case. The defence cross-examined all the prosecution witnesses but did not adduce any defence witness.

6. The case of the defence, in short, is that the accused persons were implicated in the case falsely and out of torture of the police and getting fear, they had compelled to make the statement under Section 164 of the Code of Criminal Procedure before the Magistrate.

7. On conclusion of the trial the learned Judge of the Tribunal by the judgment and order dated 20.05.2003 found the present

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

appellants guilty under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced them to suffer imprisonment for life with a fine of Taka 1,00,000/-, in default to suffer rigorous imprisonment for 3(three) years and convicted Shamsuzzaman Bipu under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentencing him to suffer imprisonment for life and also with a fine of Tk.1,00,000/- in default to suffer imprisonment for 3(three) years more and other 3(three)accused persons were convicted under Section 4(1)/30 of the NariO-Shishu Nirjatan Daman Ain,2000 and sentenced them for imprisonment for life with a fine of Taka 1,00,000/-, in default to suffer rigorous imprisonment for 3(three) years and convicted the Shamsuzzaman Bipu.

8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the present convict-appellants are thus before us by preferring this appeal.

9. Md. Zahirul Islam, the learned Advocate appears on behalf of the appellant and placed the impugned judgment and order of conviction and sentence and other material evidence on record before us. Mr. Islam submits that the learned Tribunal acted illegally in convicting the appellant, though the prosecution failed to prove the case beyond reasonable doubt against him. He further submits that the confessional statements under Section 164 of the Code of Criminal Procedure of the convict appellants

9

were obtained by torture and those were not true and voluntary.

10. On the other hand Mr. Kazi Ebadot Hossain, the learned Assistant Attorney General appearing for the State submits that the learned Tribunal did not commit any error or illegality in convicting the appellants. The appellants them self admitted their guilt by making confessional statement under Section 164 of the Code of Criminal Procedure before the Magistrate, 1st class and as such he prays for dismissal of the appeal.

11. Heard the learned Advocate of the respective parties, perused the impugned judgment and order of conviction and sentence and material evidence available on the record.

12. It appears from the impugned judgment and order of conviction and sentence that the Tribunal itself observed to the effect: "B−m¡QÉ j¡jm¡u ¢iL¢Vjœu−L H¢pX ¢e−rf Ll¡l OVe¡l ®L¡e fËaÉrc¢nÑ p¡r£ e¡Cz'' 13. But the Tribunal despite that finding, relying on the confessional statements under Section 164 of the Code of Criminal Procedure of the found them guilty and awarded the conviction and sentence.

14. We have also examined the evidence of P.W-1, the informant Md. A. Hai Bhuiyan, P.W-2 Most. Shahnaj Begum mother of the victim, P.W-3 Rehana Akhter alias Bina, the main victim, P.W-4 Sultana Rajia, another victim, P.W-5, Shahadat Hossain alias Roni, the other victim, P.W-6 Shah Alam Bhuiyan, the cousin of the informant, P.W-8 Md. Amir

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J.)

Hossain Bhuiyan, younger brother of the informant, P.W-9 Md. Jitu Mia, P.W-12 Md. Abu Taleb Bhuiyan, P.W-14 Md. Ali alias Mohammad Hossain, P.W-15 Haji Mojammal Haque Bhuiyan nephew of the informant. In their respective deposition and cross-examination they categorically stated that they did not see the occurrence of throwing acid by the accused persons. But the said witnesses deposed that after the occurrence they came to know that all the four accused persons have committed the offence.

15. In view of the above facts and circumstances, we are of the view that it is not at all necessary to discuss elaborately the evidence of the above witnesses.

16. In the instant case the conviction was based mainly, relying on the confessional statement under Section 164 of the Code of Criminal Procedure of the convict persons.

17. Now let us consider, whether the confessional statements of the present appellants and three other convicts are true and voluntarily and whether the conviction can be awarded relying on the same.

18. The confessional statement under Section 164 of convict-Md. Shamsuzzaman alias Bipu is as follows: “B¢j C¢mu¡R, h£e¡ HLC ú¥−m ®mM¡fs¡ Lla¡jz I pj−u Bj¡l h£e¡l p¡−b −fËj ¢Rmz 99 p−e Bjl¡ ¢aeSe Hp, Hp, ¢p, fl£r¡ ®cCz Bj¡l¡ ®gm L¢lz h£e¡ L−m−S i¢aÑ q|uz Bjl¡ Bh¡l fl£r¡ ®cCz Bjl¡ Bh¡l ®gm L¢lz fl£r¡ ®n−o B¢j Y¡L¡u ¢N−u

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Q¡L¥l£ L¢lz p¡−s ¢aej¡p fl h¡s£−a B¢pz h¡s£−a Bp¡l 2/3 ¢ce fl C¢mu¡R J j¡j¤−el p¡−b ®cM¡ quz B¢j C¢mu¡−Rl L¡−R h£e¡l Mhl S¡e−a Q¡Cz C¢mu¡R h−m ®k, h£e¡l ¢h−u ¢WL q−µRz B¢j C¢mu¡R−L h¢m ®k, ¢L Ll¡ k¡uz aMe C¢mu¡R h−m ®k, H¢pX j¡lz a¡q−m Bl ¢h−u q−h e¡z j¡j¤−el L−R H¢pX Q¡C−m ®p l¡¢S quz a−h L¡E−L hm−a ¢e−od L−lz Hlfl B¢j h¡s£−a Q−m B¢pz ¢hL¡−m B¢j j¡j¤−el L¡R ®b−L H¢pX H−e C¢mu¡−Rl h¡s£−a H¢pX ®l−M B¢pz fl¢ce påÉ ®hm¡ j¡j¤e ®c¡L¡−e k¡Ju¡l pju l¡Ù¹¡u Bj¡l p¡−b ®cM¡ quz j¡j¤e−L ¢e−u B¢j C¢mu¡−Rl h¡s£−a B¢pz C¢mu¡−Rl h¡s£−a C¢mu¡−Rl j¡ Bj¡−cl Q¡-j¤¢s ®cuz C¢mu¡R, j¢el J ®j¡h¡lL−L j¡R dl¡l Lb¡ h−m ¢e−u B−pz C¢mu¡−Rl Ol ®b−L ØV£−ml HL¢V NÔ¡p ®eCz ®h¡am i¢aÑ H¢pX ¢e−u Bjl¡ h¡s£l Ešl f¡−n ¢Nu¡ NÔ¡−p f¡¢e ¢eu¡ H¢pX ®Vø L¢lz j¡j¤e h−m ®k, H¢pX i¡−m¡ e¡z aMe j¡j¤e a¡l ®c¡L¡e ®b−L Bh¡l H¢pX Be−a h−mz B¢j C¢mu¡R j¢el j¡j¤e Nõ¡L k¡C H¢pX Be¡l SeÉz hË£−Sl L¡−R Bj¡−cl ®l−M j¡j¤e ®h¡am ¢eu¡ ®c¡L¡e ®b−L H¢pX ¢e−u B−pz Bj¡−L H¢p−Xl ®h¡am ¢c−u j¡j¤e ®c¡L¡−e Q−m k¡uz Bjl¡ ¢aeSe i¥Cu¡ h¡s£l L¡−R B¢pz C¢mu¡R j¢el−L h£e¡ ¢L L−l ®c−M Bp−a h−mz j¢el ®c−M H−p h−m h£e¡ ®mM¡fs¡ Ll−Rz C¢mu¡R h−m ®k, HC-C pjuz B¢j ®h¡am ®b−L H¢pX ¢eu¡ h¡s£l ¢ia−l k¡Cz C¢mu¡R j¢el h¡s£l h¡C−l b¡−Lzz B¢j h£e¡−cl O−ll f§hÑ f¡−nl S¡e¡m¡ ¢cu¡ h£e¡l N¡−u H¢pX j¡¢lz H¢pX ®j−l ®c±−s h¡s£l h¡C−l H−p ®c±s f§hÑ ¢c−L k¡Cz

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

k¡Ju¡l f−b HL¢V M−sl f¡l¡u NÔ¡p¢V m¤¢L−u ®l−M C¢mu¡−Rl h¡s£−a ¢N−u C¢mu¡−Rl M¡−V ö−u f¢sz pL¡−m C¢mu¡p−L O¤−j ®l−M B¢j Q−m B¢pz I¢ce Bj¡l h¡s£−a ®b−L fl¢ce B¢j Y¡L¡u Q−m k¡Cz ®m¡Lj¤−M ö−e¢R ®k, h£e¡, Eo¡ J l¢el N¡−u H¢pX f−s−Rz HC Bj¡l Sh¡eh¢¾cz 19. The confessional statements under Section 164 of the Code of Criminal Procedure of convict Md. Monir Hossain is as follows: “B¢j Y¡L¡u L¡lM¡e¡u nË¢j−Ll L¡S L¢lz fÊ¡u HLj¡p B−N B¢j Bj¡−cl h¡s£−a B¢pz 11/8/2000Cw a¡¢lM h¡s£−a ¢Rm¡jz l¡−a h¡s£−a i¡a ®M−a Bp−m Bj¡l ®SW¡−a¡ i¡C C¢mu¡R Hhw j¡j¡−a¡ i¡C p¡jR¤‹¡j¡e ¢hf¤ Bj¡−L X¡−Lz B−cl p¡−b p¡jR¤m Bm−jl ®R−m j¡j¤e ¢Rmz a¡−cl p¡−b C¢mu¡−Rl O−l ®N−m C¢mu¡−Rl j¡ Bj¡−cl Q¡-j¤¢s ®M−a ®cuz l¡a 09.00 V¡l ¢LR¤ f−l Bjl¡ Q¡lSe I Ol ®b−L ®hl q−u h¡s£l HL ®L¡−e f¤L¥lf¡−s k¡Cz aMe ¢hf¤−L HL¢V NÔ¡p J HL¢V ®h¡am ®hl Ll−a ®c¢Mz NÔ¡−p L−l f¤L¥l ®b−L f¡¢e ®eu Hhw ®h¡am ®b−L m¡m−Q dl−el f¡¢el j−a¡ ¢S¢ep ®hl L−l NÔ¡−pl f¡¢el p¡−b ¢jn¡uz Hlfl h−m ®k, HC H¢pX eø q−u ®N−Rz HLb¡ h−m ®pV¡ ®p f¤L−¥ l ®g−m ®cuz Hlfl B¢j l¡Ù¹¡l d¡−l B¢pz ®pM¡−e j¡j¤e Bj¡−cl hp−a h−m h¡s£−a ®M−a k¡uz Bj¡l i¡C ®j¡h¡lL aMe Bj¡−cl p¡−b ¢Rmz ®j¡h¡lL f−l h¡s£−a Q−m k¡uz j¡j¤epq Bjl¡ 4Se h¡S¡−l k¡Cz j¡j¤e a¡−cl ®c¡L¡e ®b−L ®h¡a−m L−l H¢pX ¢e−u B−p Hhw ¢hf¤−L ®cuz j¡j¤e h¡S¡−l −b−L k¡uz Bjl¡ 3 Se i¨Cu¡ h¡s£−a B¢pz ®pM¡−e ¢hf¤ Bj¡−L h−m h£e¡ ¢L L−l a¡ ®c−M Bp−az B¢j ¢Nu¡ ®c−M H−p h¢m ®k, h£e¡ fs¡l ®V¢h−m B−Rz aMe ¢hf¤ H¢pX NÔ¡−p Y¡−mz ¢hf¤ h¡s£−a Y¥−Lz B¢j J C¢mu¡R l¡Ù¹¡l d¡−l Q−m B¢pz

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20. The confessional statement under Section 164 of the Code of Criminal Procedure of convict Md. Ilias Hossain is as follows: “B¢j, ¢hf¤ J h£e¡ HLC ú¥−m fsa¡jz 1999 p−e h£e¡ Hp, Hp, ¢p, f¡n L−l L−m−S i¢aÑ quz B¢j Bl ¢hf¤ ®gm L¢lz ¢hf¤ h£e¡l p¡−b ®fË|j Ll−a¡z 2000 p¡−m Bjl¡ Bh¡l fl£r¡ ®cC Hlfl ¢hf¤ Y¡L¡ Q−m k¡uz p¡−s ¢ae j¡p fl ®p h¡s£−a B−pz Bj¡l p¡−b J j¡j¤−el p¡−b a¡l ®cM¡ quz ¢hf¤ Bj¡−cl h£e¡l Lb¡ ¢S−‘p L−lz B¢j S¡e¡C ®k, h£e¡l ¢h−u ¢WL q−u k¡−µRz aMe ¢hf¤ ¢S−‘p L−l ®k, ¢L Ll¡ E¢Qaz B¢j hmm¡j ®k a¥C h£e¡−L H¢pX j¡lz j¡j¤e hm−m¡ ®k, ®p H¢pX ®c−hz a−h a¡l Lb¡ L¡E−L ®ke hm¡ e¡ quz hªqØf¢ah¡l ¢hL¡−m ¢hf¤ j¡j¤−el ®c¡L¡−e ¢N−u H¢pX B−ez H¢pX Bj¡−cl O−l l¡−Mz fl¢ce öœ²h¡l 11/8/2000Cw påÉ¡u ¢hf¤ j¡j¤e Bj¡−cl h¡s£−a k¡uz B¢j j¢el J ®j¡h¡lL−L ®X−L B¢ez Bj¡l j¡ Bj¡−cl−L Q¡-j¤¢s ®cuz ®M−u B¢j H¢p−Xl ®h¡am ®eCz ¢hf¤ Bj¡−cl Ol ®b−LC HL¢V ØV£−ml NÔ¡p ®euz ¢e−u Bj¡−cl h¡s£l Ešl f¡−n B¢pz ¢hf¤ f¤L¥l ®b−L NÔ¡−p f¡¢e −euz ¢e−u Bj¡−cl h¡s£l Ešl f¡−n B¢pz ¢hf¤ f¤L¥l ®b−L NÔ¡−p f¡¢e ®euz j¡j¤epq NÔ¡−p H¢pX ®Vø L¢lz j¡j¤e hm−m¡ ®k, HC H¢pX i¡−m¡ euz aMe B¢j, j¡j¤e, ¢hf¤, j¢el Bh¡l Nõ¡L h¡S¡−ll ¢c−L lJu¡e¡ ®cCz hË£−Sl ®N¡s¡u B¢j, j¢el, ¢hf¤ c¡¢s−u ¢Rm¡jz j¡j¤e ®c¡L¡e ®b−L H¢pX H−e ¢hf¤l q¡−a ®cuz ®p Bh¡l ®c¡L¡−e Q−m k¡uz B¢j, ¢hf¤, j¢el H¢pX ¢e−u i¥Cu¡ h¡s£l L¡R¡L¡¢R B¢pz B¢j j¢el−L h¢m, h£e¡ ¢L L−l ®c−M Bp¡l SeÉz j¢el ®c−M H−p h−m h£e¡ fs¡l ®V¢h−m B−Rz B¢j ¢hf¤−L h¢m ®k, HC-C pju, a¥C NÔ¡−p H¢pX Y¡mz aMe ¢hf¤ NÔ¡−p H¢pX ®Y−m Bj¡l

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J.)

q¡−a ®h¡am ®cuz ¢hf¤ Bj¡−cl h−m ®a¡l¡ c¡s¡, ®LE B−p ¢Le¡ ®cMz NÔ¡−p H¢pX ¢e−u ¢hf¤ ¢ia−l k¡uz B¢j M¡¢m ®h¡am¢V LQ¥l£f¡e¡l Efl ®g−m ¢c−u j¢elpq jp¢S−cl O¡Vm¡u Q−m k¡Cz ®pM¡−e j¢Sh, BCEh, a¡S¤m, B¢j, j¢el HL−œ ¢Rm¡jz H−cl p¡−b Lb¡ hm−a b¡¢Lz 2/3 ¢j¢eV fl i¥Cu¡ h¡s£ ®b−L ¢QvL¡l ö¢ez ¢QvL¡l ö−e Bjl¡ I h¡s£−a k¡Cz ¢hf¤ ®c±−s Bj¡−cl p¡j−e ¢c−u f§hÑ ¢c−L Q−m k¡uz Bjl¡ ph¡C h¡s£−a Y¥−L h£e¡ Bl l¢e−L L¡æ¡la AhÙÛ¡u ®c¢Mz aMe B¢j Bl j¢el h¡s£l ¢c−L k¡Cz h¡s£−a ¢N−u ®c¢M ¢hf¤ Bj¡l M¡−V ö−u B−Rz B¢jJ HLC p¡−b ö−u b¡¢Lz ¢hf¤ pL¡−m E−W Bj¡−L e¡ S¡¢e−u Q−m k¡uz B¢j Hlfl h¡s£−aC ¢Rm¡jz” 21. The confessional statement under Section 164 of the Code of Criminal Procedure of convict-Md Mamun Mirza is as follows: “C¢mu¡R J ¢hf¤ Bj¡l p¡−b 2000 p¡−m Hp, Hp, ¢p fl£r¡ ®cuz Bj¡−cl hå¥aÄ quz ¢hf¤l p¡−b h£e¡l ®fË−jl Lb¡ B¢j ö−e¢Rm¡jz hªqØf¢ah¡l ¢hf¤ J C¢mu¡−Rl p¡−b Bj¡l påÉ¡ ®hm¡u ®cM¡ quz Bj¡l p¡j−e ¢hf¤ C¢mu¡R−L h£e¡l Mhl ¢S‘p¡ L−lz C¢mu¡R h−m ®k, h£e¡l ¢h−u ¢WL q−µRz aMe ¢hf¤ ¢L Ll¡ k¡u hm−m C¢mu¡R h−m ®k, a¥C H¢pX j¡lz Bj¡−cl hÉ¡V¡l£l ®c¡L¡e ®b−L H¢pX ¢c−a f¡l−h¡ ¢Le¡ h−m C¢mu¡R ¢S−‘p Ll−m B¢j h¢m ®k, H¢pX ¢c−a f¡l−h¡ a−h Bj¡l Lb¡ L¡E−L hm−a ¢e−od L¢lz ¢hf¤ ¢hL¡−m Bj¡l ®c¡L¡e ®b−L 500/- V¡L¡ ¢c−u HL¢V ®h¡a−m L−l H¢pX B−ez H¢p−Xl f¢lj¡e HL ®f¡u¡l Lj q−hz öœ²h¡−l påÉ¡ ®hm¡ ¢hf¤l p¡−b Bj¡l f−b ®cM¡ quz ¢hf¤ Bj¡−L C¢mu¡−Rl h¡¢s−a ®k−a h−mz Bjl¡ C¢mu¡−Rl O−l ®N−m C¢mu¡−Rl j¡ Q¡-j¤¢s ®cuz C¢mu¡R j¡R dl¡l Lb¡ h−m j¢el, ®j¡h¡lL−L ®X−L B−ez Q¡-j¤¢s ®M−u Bjl¡ fy¡QSe O−ll

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h¡C−l k¡Cz C¢mu¡R H¢p−Xl ®h¡am J HL¢V NÔ¡p ®euz Bjl¡ C¢mu¡−Rl h¡s£l Ešl f¡−n f¤L−¥ ll f¡−s k¡Cz a¡lfl ¢hf¤ NÔ¡−p f¡¢e ®euz B¢j NÔ¡−p H¢pX Y¡¢mz B¢j h¢m ®k, HC H¢pX i¡−m¡ euz aMe ¢hf¤ Bl C¢mu¡R h−m ®k, a¡−cl i¡−m¡ H¢pX ¢c−a q−hz B¢j, ¢hf¤, C¢mu¡R J j¢el h¡S¡−ll ¢c−L lJu¡e¡ qCz ®j¡h¡lL a¡l h¡s£−a Q−m ¢N−u¢R−m¡z NmÓ¡L h¡S¡−l N−u hË£−Sl ¢eLV c¡s L¢l−u B¢j ®c¡L¡−e k¡Cz ¢hf¤l ¢eLV ®b−L ®h¡am¢V ¢e−u B¢j ®c¡L¡e-H ¢N−u H¢pX ¢e−u H−p ¢hf¤−L ®cCz B¢j a¡−cl p¡−b Bl k¡C¢ez ®c¡L¡−e ¢Rm¡jz O¾V¡/−cs O¾V¡ f−l h¡S¡−l ®m¡Lj¤−M ö¢e ®k, Bhc¤m q¡C i¥Cu¡l HL ®R−m, c¤C ®j−u−L ¢LR¤ ¢c−u SÆ¡¢m−u ®cu¡ q−u−Rz HC Bj¡l Sh¡eh¢¾cz” 22. On scanning of the above confessional statement of the 4(four) convict, it appears to us that those confessional statements are inculpatory in nature. The pertinent statement of convict Shamsuzzaman Bipu is that; ""B¢j h£e¡−cl O−ll f§hÑ f¡−nl S¡e¡m¡ ¢c−u h£e¡l N¡−u H¢pX j¡¢lz H¢pX ®j−l ®c±−s h¡s£l h¡C−l H−p ®c±−s f§hÑ ¢c−L k¡Cz'' 23. From the statement of convict-Ilias Hossain, it appears that he had advised convict Md. Shamsuzzaman alias Bipu to throw acid on the person of victim Bina and he helped Bipu in collecting acid. From the statement of convict -Monir Hossain it appears that before committing the offence all the accused persons met in his house and they all went to the bazar namely, Gallak Market to collect acid. Convict-Mamun Mirja admitted in his statement that he supplied the acid from their shop of battery.

24. P.W-10 A.B.M Abdul Fattah, Magistrate 1st Class, who recorded the confessional statement of the convict

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Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

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appellants, in his deposition categorically stated that while he was serving at Chandpur as a Magistrate 1st Class he recorded the statement of accused-Monir on 17.08.2000 and on 20.08.2000 recorded the statement of accused-Md. Shamsuzzaman alias Bipu, Ilias Hossain and Md. Mamun Mirza respectively.

He identified those statements as exhibits-4, 5, 6, 7, 8 and his signature on those as exhibits-4/1 4/6, 5/1 5/6, 6/1 6/6, 7/1 7/6, 8/1 8/6 respective. This witness also deposed that he after observing all the legal formalities and complying the provision of law recorded the statement of the accused persons under Section 164 of the Code of Criminal Procedure.

28. Having discussed as above, we have no hesitation to hold that the confessional statements under Section 164 of the Code of Criminal Procedure of all the four convict are true and voluntarily and those are free from doubt.

25. In cross-examination he denied the defence suggestion that he recorded the statement in not complying the mandatory provision of law and the accused persons were sick and he also stated to the effect:

“Na 18/8/2000Cw a¡¢l−M c¡−l¡N¡ p¡−qh Bp¡j£ p¡jR¤‹¡j¡e Jl−g ¢hf¤ J ®j¡x j¡j¤e ¢jSÑ¡−L ¢euv Bj¡−cl Hm¡L¡u Bp¡l fl a¡q¡−cl−L HS¡q¡lL¡l£l h¡s£l p¡j−e Be¡l fl Bjl¡ ®pM¡−e k¡Cz aMe EJ² c¤CSe Bp¡j£ Bj¡−cl pÇj¤−M S¡e¡u ®k, a¡q¡l¡ ®k fÔ¡¢ø−Ll ®h¡a−m L¢lu¡ SMj£−cl H¢pX j¡¢lu¡¢Rm a¡q¡ l¡Ù¹¡l c¢re f¡−n LQ¥¢lf¡e¡u ®g¢mu¡ ¢cu¡¢Rmz”

""Bp¡j£ Bj¡l ¢eLV HC j−jÑ A¢i−k¡N L−l e¡C ®k, f¤¢mn a¡q¡¢cN−L ¢ekÑ¡ae L¢lu¡¢Rmz'' 26. P.W-21, Sub-Inspector Swapan Kumar Majumder, the investigating officer, in his cross-examination denied the defence suggestion that he managed to record the statement of the accused persons upon torturing on them.

27. At the time of the examination of the convict appellant under Section 342 of the Code of Criminal Procedure, the learned Judge of the Tribunal had drawn attention to them with regard to their confessional statement under Section 164 of the Code of Criminal Procedure before the Magistrate.

But the convict persons did not say anything at the time of said examination about the alleged torture of the police, which prompted them to make such statements.

29. P.W-7 Md. Mobarak Hossain, a seizer list witness, who is the cousin of convictMonir, in his deposition stated that on the day of occurrence at 8.00 P.M he saw that on the bank of the pond Shamsuzzaman alias Bipu had been dropping some liquid in a still glass. Thereafter, he threw the glass.

30. P.W-9 Md. Jitu Mia, another seizer list witnesses, in his deposition stated that;

31. P.W-11 Md. Abdul Goni Patwary alias Babul, another seizer list witnesses corroborated the above assertion of P.W-9 and he also identified his signature on it as exhibit-3/2 and the plastic bottle, material exhibit-II. 32. P.W-13, Sayed Shafiqul Hider alias Shahin, P.W-14 Md. Ali alias Mohammad Hossain proved the seizer list as exhibit-9 and their signature on it as exhibits-9/1 and 9/2 respectively, by which various apparels of the victims and other goods were seized.

This evidence also corroborated the confessional statements of the convict

14

Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J.)

persons that acid was thrown on the persons of the victims.

33. P.W-20 Dr. K.A Tajam in his deposition stated that on 18.08.2000, he examined victim Rehana Akhter alias Bina and found the following injuries:

2 LNJ (2013)

37. From exhibit-10 it appears that the P.W10 mentioned that the injury No.1 and 2 caused permanent disfiguration of the face of victim Rehana Akhter.

38. P.W-3 Rehana Akhter alias Bina in his deposition stated that:

(1) One burn spot on right frontal region of size 11/2” X 11/2” (Permanent disfiguration of face).

""H¢p−X Bj¡l X¡e f¡−nl Lf¡m, N¡m J Nm¡ fkÑ¿¹ Tmp¡Cu¡ k¡u Hhw HC p¡r£ Eš² H¢p−X Tmp¡−e¡ c¡N Aœ Bc¡ma−L ®cM¡ez

(2) Multiple small burn area on the right cheek causing permanent disfiguration of face.

Eš² H¢p−X A¡j¡l X¡e f¡−nl ¢fW qC−a ®L¡jl fkÑ¿¹J Tmp¡Cu¡ k¡uz Eš² H¢p−X Bj¡l X¡e f¡−ul q¡V¥l Ef−l J ¢e−Q Hhw X¡e q¡−al h¡ý Le¤C fkÑ¿¹ Tmp¡Cu¡ k¡u Hhw HC p¡r£ Eš² H¢p−X Tmp¡−e¡ c¡NJ Aœ Bc¡m−a ®cM¡ez ----------z H¢p−X Bj¡l X¡e f¡−nl ¢fW qC−a ®L¡js fkÑ¿¹ Tmp¡−e¡ c¡N Bc¡ma ®c¢M−a Q¡C−m B¢j a¡q¡ ®cM¡Cz''

(3) One burn area in the right scapular region of size 2” X 1”.

(4) Multiple small burn area on the right knee joint.

34. He identified the medical certificate Exhibit-10 and his signature and on it Exhibit-10/1. On very that day he also examined victim Sultana Rajia alias Usa and found the following injuries: (1)One small burn spot on the left cheek of size ¼” X ¼”.

(2)Multiple small burn area on the left and right arm and fore arm.

(3)Multiple small burn area on the right thigh.

35. He also examined victim Shahadat Hossain and found the following injuries: (1) Multiple small burn spots on both thigh, abdomen and back.

(2) One small burn area on right cheek.

36. He also identified the respective medical certificate and his signature on those as exhibits-11, 11/1 and 12, 12/1 respectively.

39. From material exhibit-XIII, the photograph of the victim Rehana Akhter immediately after the occurrence; it appears that on the left side of the cheek, there is a black injury mark, but that injury can not be treated as the permanent disfiguration of the face. So far the other victims are concerned the Doctor did not opine that their injuries were caused permanent disfiguration, of any part of their respective body. The learned Tribunal itself saw the victim while victim Rehana Akhter deposed before it but the learned Tribunal did not observed in the impugned judgment that the face of victim Rehana Akhter has disfigured.

40. In view of the said facts and circumstances we are of the view that the prosecution proved that convict-Md. Shamsuzzaman alias Bipu with the help of convict-Ilias, Monir and Monsur Mirza, threw acid on the person of victims and

2 LNJ (2013)

Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

caused several burn injuries on their respective persons but considering the material exhibit-XIII, the photograph, and the injuries shown before the learned Tribunal there is a reasonable doubt whether the face of the victim Rrhana Akhtar has disfigured.

41. The learned Tribunal convicted Md. Shamsuzzaman alias Bipu under Section 4(1) and convicted the present appellants under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain. Section 4 of the NariO-Shishu Nirjatan Daman Ain, 2000 is as follows: 4z cqeL¡l£, CaÉ¡¢c fc¡bÑ à¡l¡ pwO¢Va Afl¡−dl n¡¢Ù¹z (1) k¢c ®L¡e hÉ¢J² cqeL¡l£, ruL¡l£ Abh¡ ¢ho¡J² fc¡bÑ à¡l¡ ®L¡e ¢nö h¡ e¡l£l jªa¥É OV¡e h¡ jªa¥É OV¡−e¡l ®Qø¡ L−le, a¡q¡ qC−m EJ² hÉ¢J² jªa¥Éc−ä h¡ k¡h‹£he pnËj L¡l¡c−ä cäe£u qC−he Hhw Cq¡l A¢a¢lJ² Ae§dÑh HL mr V¡L¡ AbÑc−äJ cäe£u qC−he; (2) k¢c ®L¡e hÉ¢J² ®L¡e cqeL¡l£, ruL¡l£ h¡ ¢ho¡J² fc¡bÑ à¡l¡ L¡e ¢nö h¡ e¡l£−L Hjei¡−h Bqa L−le k¡q¡l g−m EJ² ¢nö h¡ e¡l£l cª¢øn¢J² h¡ nËhZn¢J² eø qu h¡ nl£−ll ®L¡e A‰, NÊ¢¿Û h¡ Awn ¢hL«a h¡ eø qu h¡ a¡q¡l nl£−ll AeÉ ®L¡e ÙÛ¡e Bqa qu, a¡q¡ qC−m EJ² ¢nöl h¡ e¡l£l(L) cª¢øn¢J² h¡ nËhZn¢J² eø h¡ j¤Mjäm, Ù¹¹e h¡ ®k±e¡wN ¢hL«a h¡ eø qJu¡l ®r−œ EJ² hÉ¢J² jªa¥Éc−ä h¡ k¡h‹£he pnËj L¡l¡c−ä cäe£u qC−he Hhw Cq¡l A¢a¢lJ² Ae§dÑh HL mr V¡L¡l AbÑc−äJ cäe£u qC−he; (M) nl£−ll AeÉ ®L¡e AwN, NË¢¿Û h¡ AeÉ ®L¡e Awn ¢hL«a h¡ eø qJu¡l h¡ nl£−ll ®L¡e ÙÛ¡−e BO¡a f¡Ju¡l ®r−œ, EJ² hÉ¢J² Ae¢dL ®Q±Ÿ hvpl ¢L¿º Ae§Ée p¡a hvp−ll pnËj L¡l¡c−ä cäe£u qC−he Hhw Cq¡l

15

A¢a¢lJ² Ae§dÑh f’¡n q¡S¡l V¡L¡l AbÑc−äJ cäe£u qC−he; 42. From the confessional statement under Section 164 of the Code of Criminal Procedure it appears that convict-Md. Shamsuzzaman alias Bipu admitted with the aid of the present convict-appellants, he threw acid on the persons of the victims. But in his statement he did not mention to the effect that with an intention to kill victimRehana, he threw acid on her person. Save and except the statement of convict-Md. Shamsuzzaman alias Bipu and the present appellant, who admitted that they aided convict-Md. Shamsuzzaman in committing the offence, the prosecution failed to bring any other evidence that in order to kill victim-Rehana Akhter alias Bina, convictMd. Shamsuzzaman threw acid on her person. To convict an accused under Section 4(1) of the Nari-O-Shishu Nirjatan Ain,2000, the prosecution must have proved that with an intention to kill, acid or other corrosive substance was thrown on the person of victim or the victim succumbed to injuries caused by acid or other corrosive substance.

Thus, the offence, which has proved, does not come within the mischief of Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2002.

43. Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain,2000 provides punishment, for causing "¢hL«a h¡ eø' of eye sight or hearing power, face, breast and private parts of the body by throwing acid or other corrosive substance. To convict a person under Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain,

16

Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J.)

2000, the prosecution has to prove that by sustaining injury/injuries by acid or other corrosive substance, the victim has lost her eye sight, hearing power, or disfigured (¢hL«a h¡ eø) face, breast and private parts of the body.

44. In the instant case in the medical report, exhibit-10, the injury No.1 and 2 have been mentioned as permanent disfiguration but material exhibit-XIII the photograph contradicts the said medical certificate and victim Rehana Aktar on her deposition did not claim such disfiguration (¢hL«a h¡ eø). The learned Judge of the Tribunal also did not give any clear finding to the effect that the face of victim Rehana Akhter alias Bina has disfigured (¢hL«a), receiving burn injuries by acid.

45. In "hÉhq¡¢lL h¡wm¡ A¢id¡e' published by Bangla Academy the meaning of word "¢hL«a' has given as follows: "¢hL«a- Aü¡i¡¢hL l²f, ¢hivp (¢hL«a j§¢aÑ)' 46. The meaning of word ‘disfigure’ given in ‘Oxford Dictionary’ is as follows: Disfigure-Spoil the beauty of; deform; deface.

47. Deform means-put out of shape; make ugly.

48. Deface means-spoil the appearance of; 49. If we consider material Exhibit XIII, the photograph of victim Rehana Akhtar and her evidence, it is very difficult for us to hold that her face has become ‘¢hL«a’ as per its true meaning that face has turned in to ‘Aü¡i¡¢hL l¦f’ or ‘¢hivp (¢hL«a j§¢aÑ)’ or the face has defaced or deformed spoiling its appearance of.

2 LNJ (2013)

50. Thus, we are of the view that the conviction under Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain,2000 will not also be proper, rather the offence as has been proved, would come within the mischief of Section 4(2)(kha) of the Nari-O-Shishu Nirjatan Daman Ain,2001, where punishment provides for causing any other injury /injuries(Md. Sakkhor Zaman, son of Md. Moniruzzaman Ocrl.A.1450 of 2006.doc) on the persons by acid or other corrosive substance .

51. Having discussed as above we are of the view that convict-Md. Shamsuzzaman alias Bipu has committed offence under Section 4(2)(kha)of the Nari-O-Shishu Nirjatan Daman Ain,2000 instead of 4(1) of the said Ain with the aid of the present appellants and thus we are inclined to convict the present appellants under Section 4(2)(Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000.

52. In the result, the appeal is dismissed with the modification of the order of conviction and sentence. The appellants are hereby convicted under Section 4(2)(kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced for rigorous imprisonment for 10(ten) years with a fine of Tk. 20,000/-, in default to suffer rigorous imprisonment for 1(one)year more.

53. The appellants are entitled to get the benefit of Section 35A of the Code of Criminal Procedure.

Send down the lower Court record at once.

Ed.

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

1

The

LAWYERS & JURISTS VOLUME – II. 2013 Report of the Decisions of the Appellate Division of the Supreme Court of Bangladesh.

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

Mr. Md. Abdul Wahhab Miah, J. Mrs. Nazmun Ara Sultana, J. Mr. Syed Mahmud Hossain Mr. Muhammad Imman Ali, J.

} } }

Government of Bangladesh and others …Appellants Vs.

Md. Ghulam } Mustafa and others ....Respondents } }

} Judgment 22 November, 2012. th

Constitution of Bangladesh, 1972 Article 102 The High Court Division has found that the petitioners have sufficient interest and are aggrieved by the actions of the respondents when the Appellate Division has further added that the writ petitioners are none else but the father of 10 (ten) students who appeared in the admission test and due to the errors in the question papers and the answer key their hopes were going to be shattered and thus their future was going to CIVIL PETITION FOR LEAVE TO APPEAL NO. 1953 OF 2012 (Arising out of Writ Petition Nos. 8556 with 8924 of 2011).

be ruined, they were the most concerned persons about the future of their children.

Therefore, the writ-petitioners were definetely the persons aggrieved within the meaning of article 102 of the Constitution. …(18).

Constitution of Bangladesh, 1972 Article 102 The dual and contradictory stand of the respondents do not appear to us bonafide.

When the respondents themselves admitted that there were errors/mistakes/ discrepancies in the Bangla and the English versions of the question papers which was also the claim of the writ-petitioners how they could claim that the questions involved in the writ petition were disputed questions of fact. …(22).

Constitution of Bangladesh, 1972 Article 102 Code of Civil Procedure (V of 1908) Section 151 In a proceeding under article 102 of the Constitution, the provisions of the Code of Civil Procedure as such are not applicable, but to decide the questions involved in the petition, the principles of the relevant provisions of the Code of Civil Procedure may be applied. So, in the instant case, the High Court Division had the option to invoke the principles of the provisions of section 151 of the Code of Civil Procedure to

2 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

request the two experts of Dhaka University to give their opinion on the subject to secure the ends of justice and thus to decide the issues involved in the writ petitions. In the facts and circumstances of the case, the High Court Division followed the right procedure in seeking opinion of the two professors of Dhaka University. ‌ (23) Constitution of Bangladesh, 1972 Article 102 Evidence Act (I of 1872) Section 45 In the instant case, the High Court Division did not decide the matter solely on the report of the two experts, the learned Judges themselves took the trouble to examine the papers, namely: the question papers, the answer key and the answer scripts of 11 (eleven) affected students and found apparent material errors and inconsistencies between the two bilingual sets of question papers and also mistakes in both the question papers as well as in the answer key to the English version which were so apparent that the same was detectable by the Court or by any educationist and then took into consideration of the report of two educationist of Dhaka University with the observation that "our findings tally with those of the aforesaid report. " In doing so the learned Judges did not commit any procedural error or mistake and the procedure, so adopted, did not at all prejudice the respondents. The High Court Division rightly observed that the concerned authority was negligent and callous in performing the duties as to setting question papers as well as in setting the answer key. ‌ (24) Constitution of Bangladesh, 1972 Article 102 There was no dispute as to the question of fact, so we find no substance in the

2 LNJ AD, (2013)

submission of the learned Attorney General that there being disputed question of fact, the High Court Division was not justified in entertaining the writ petition.

In the instant case, the High Court Division entertained the writ petition and interfered in the matter as there were apparent errors and inconsistencies between two bilingual sets of question papers as well as in the answer key to the English version affecting the fate of the children of the petitioners as to their admission in the MBBS/BDS course in the Government and Medical/Dental Colleges and in fact, those who were genuinely affected because of the apparent errors/anomalies/inconsistencies in the question papers of the two versions, the Bangla and the English came before the Court and not the hundreds. In the context, the High Court Division rightly entertained the writ petition.

The five students who are the children of writ-petitioner Nos.3, 4, 5, 6 and 10, who were found eligible for admission in the MBBS/BDS course in the Government Medical/Dental Colleges could not get themselves admitted because of the order of stay of operation of the impugned judgment and order obtained by the writ-respondentpetitioners from this Division for no fault of their own.

The writ-respondent-petitioners are directed to take immediate arrangements for admission of 5(five) children of the petitioners in the Government Medical/ Dental Colleges for the session 2012-2013.

The 5(five) students shall not have any claim for admission in any particular Government Medical/Dental College, but the writrespondents shall keep in mind the Government Medical/Dental College where

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

they could get admission in the session 20112012 as per the marks secured by them as calculated by the High Court Division. ….(26, 29 and 31) Kazi Mokhlesur Rahman -vs- Bangladesh and others, 26 DLR (AD) 44, Dr. Mohiuddin Farque -vs- Bangladesh, 49 DLR (AD) 1, Ekushe Televison –vs- Bangladesh, 54 DLR (AD)130, Brac Bank -vs- Bangladesh, 54 DLR (AD)34, ref.

For the Petitioner: Mr. Mahbubey Alam, Attorney General, instructed by Mr. B. Hossain, Advocate-on-Record.

For the Respondents: Mr. Muzammel Haq, Senior Advocate; instructed by Mr. Md. Habibur Rahman Miah, Advocateon-Record.

JUDGMENT Md. Abdul Wahhab Miah, J; The writrespondents are seeking leave to appeal against the judgment and order dated the 5th day of June, 2012 passed by the High Court Division in Writ Petition No.8556 of 2011 disposing the same.

2. The above mentioned writ petition was filed by the writ-petitioner-respondents (hereinafter referred to as the petitioners) before the High Court Division with the prayer for issuing a Rule calling upon the writrespondent-petitioners herein to show cause as to why the admission test for MBBS and BDS for the session 2011-2012 held on 30.09.2011 shall not be declared to have been taken without lawful authority and is of no legal effect. In the writ petition, a direction was also sought for upon the writ-respondents to produce both the Bangla and the English version of the question papers for the admission test of MBBS and BDS

3

(Government and Non-Government) held on 30.09.2011 for the session 2011-2012 and the assessment method and criteria thereof for the satisfaction of the Court.

3. In the writ petition, it was stated, inter alia, that the petitioners are the parents and guardians of the students who appeared for the admission test of MBBS and BDS (Government and Non-Government) held on 30.09.2011 for the session 2011-2012. Soon after the test, the candidates, while discussing among themselves, revealed that there were serious errors and anomalies between the Bangla and the English version of the question papers of the test which may severely affect the merit lists for the English medium/version students. Some of the examples of the errors and the anomalies between the Bangla and the English version of the said test papers, found by the students, were as follows; (a) Bangla: ‡Kvb A½ kix‡ii fvimvg¨ iÿv K‡i bv?

English: Which organ maintains the balance of the body? (b) Bangla: ‡KvbwU dj wgwó Ki‡Z mvnvh¨ K‡i?

English: Which does not help in sweetening the fruits? (c) Bangla: wb‡Pi ‡KvbwU dj cvKv‡Z mvnvh¨ K‡i?

English: Which of the following does not help in ripening the fruits? (d) Bangla: DËj (convexs) `c©‡bi eµZvi †K‡›`ª ¯’vwcZ e¯‘i cÖwZwe‡¤^i Ae¯’v‡bi Rb¨ wb‡Pi †KvbwU mwVK bq?

English: An object is placed at the centre of curvature of a concave mirror. Which one of the following is true regarding the image of the object? (e) Further, it has been revealed by the students that, for a question, in a Bangla answer sheet there were 4 options while in English answer sheet there were 3 options to select from.

4. The students identified and suspected that around another 20-25 questions had such

4 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

anomalies which were capable of substantially affecting their merit list; since the question papers had not been provided to the students, they could not but wait for the publications of the results. The results were published on 02.10.2011. After publication of the results, the concerns of the English medium/version students turned into reality and it was found that most of the English medium/version students from the most reputed institution of the country, such as: Vikharunnesa Noon School & College, Rajuk School and College of Uttara, Shahid Anwar Girls' College of Cantonment, Notre Dame College, 12 Cadet Colleges of Bangladesh, etc failed to obtain a place in the merit list of the successful students. Being seriously concerned and doubtful about the legitimacy of the published results and the merit list, the parents and the guardians of the English medium/version students made an application to the Director General of Health Services, writ-respondent No. 3 on 04.10.2011 requesting him to address the alleged errors and anomalies outlined by them in the application to which he made no reply. Another application with the same request was made by the parents and guardians of the English medium/version students on 08.10.2011 to the same authority to which no reply was also made. The matter came up in the daily newspaper "The Daily Jugantar" on 09.10.2011 outlining the issues of said errors and anomalies in the MBBS and BDS admission test held on 30.09.2011. On 1 1.10.2011, a demand justice notice was served upon writ-respondent No. 3 outlining the errors and anomalies to which he did not make any reply; hence the writ petition was filed.

5. In the writ petition, contentions were raised by way of submission that it appeared from the examples of errors and anomalies, as set out in paragraph 5 of the writ petition that the

2 LNJ AD, (2013)

correct answers for both the Bangla and the English test papers were not the same, hence in the event that a single marking method of group of students either the Bangla or the English had certainly been subjected to serious injustice violating their rights to have equality before law and equal protection of law as contained in article 27 of the Constitution of the People's Republic of Bangladesh (the Constitution), and hence the respondents were to be directed to produce the admission test papers both the Bangla and the English version and the method of markings before the Court for its satisfaction. The petitioners were entitled to be treated in accordance with law as contained in article 31 of the Constitution and any attempt to impede the same by the Government authority would be illegal and was of no legal effect.

Unless the respondents were directed to produce the admission test papers both the Bangla and the English version and the method of markings thereof before the Court, the petitioners will suffer irreparable loss and injury.

6. Rule was issued in the terms of the prayer.

7. Writ-respondent Nos.3 and 4 appeared in the writ petition and filed an affidavit-inopposition in order to contest the Rule contending, inter alia, that the statements made by the petitioners about the English version of question No.34 was partly true and, regarding question No. 15, it was stated that the omission of the words "sun light and water" in the main stem of the English version were true.

Regarding question No.54, it was stated that the claim of the petitioners was partly correct as in the Bangla version of the question paper, the word Òme© wb¤œÓ had not been given. However, the respondents tried to justify by an explanation that since the temperature range was shown as (-oc) scale, it indicated the lower to the lowest situation sequentially. With regard to

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

question No.73 of the English version, it was stated that though the word (¯^vkZš¿) was omitted from the English version, this omission did not have any bearing on the given alternatives. With regard to question No.77 of the English version, it was stated that the allegation of the petitioners was not entirely correct as one alternative was chosen to be the correct answer and the same was not absolutely necessary to form the organic compound. The anomalies in the answers to both the Bangla and the English versions in respect of question No.28 were admitted. With regard to question No.24 of the English version, it was stated that the omission of "nm" did not prevent one from choosing the correct alternative since the only representative abbreviation for radius is “nm". The spelling mistake in question No.8 was admitted. It was further stated that question Nos.2, 21, 25, 38, 40, 44, 55, 76 and 87 contained only one corresponding correct answer though some of the alternative seemed to be correct also. There was no anomaly between the two versions of the question papers which could seriously or adversely affect the merit list of the students giving the relevant test in English. Apparently, from 100 questions only question No.93 was slightly different and the said difference was resolved by the examiners when they marked the answer scripts and as such, there were no questions which might have prejudiced the English version students. The allegation regarding the students giving the relevant tests in English being unable to obtain the requisite marks was not correct at all and, in fact, 13 students of the English version were placed in the merit list.

There was no irregularity in making assessment of the answer scripts as well as in publishing the results. In fact, there was no scope or opportunity to create any anomaly as there were two alternative methods. Pursuant to an application

5

filed by the parents and guardians of the English medium students, the Director General of Health Services, the concerned authority, upon proper scrutiny of the same, responded with due alacrity. After receiving the legal notice, the respondent could not reply to the same due to pendency of the writ petition. The question papers set in the Bangla and the English were the same and the process of cross reference or cross-checking was the same with regard to both the answer sheets. The petitioners had failed to comprehend the question.

8. The writ-respondents filed another affidavit-in-opposition on 07.03.2012 contending, inter alia, that the allegations as to 19 errors /anomalies, both in the Bangla and the English versions of the MBBS/BDS admission test were not correct and they replied as to the said allegations as under: Serial. Q. No. 1. 34.

Raised Errors & observations i. ii. iii.

iv.

V. 2. 93.

i. ii. iii.

3. 15.

i.

It is not self explanatory error It is not opposite for English and Bangla That the statement made about correctness of answer in Bangla options C is correct. No. A, B & D In English it is same i.e., C is correct In answer key sheet option was C as correct.

Admitted & mark(s) were given accordingly This is not true Date of admission was prefixed by the admission committee.

It does not affect candidates understanding to choose the

6 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

4. 54.

5. 73.

correct option. Only glass fulfills the criteria stated in the stem of question. ii. Article 27 is not affect. i. Word "lowest" does not affect the candidates' understanding. ii. None of the options are correct is an imaginary matter. iii. This is not correct. This is not true. iv. From the available A, B, C & D; "B" was choice. i. It is not vague ii. Article 27 is not affected.

6. 77.

i.

7. 81.

ii. iii. iv. i. ii.

8. 28.

i. ii.

iii.

9. 24.

10. 8.

iv. i. ii • i. ii.

In both versions it was not blank, rather "D" was choice.

This is not true This is not true This is not true It does not affect the understanding of a candidate.

This is not true. Correct choice was "D" Allegation is not true.

Is seems to be negative manner but it was not negative manner.

There was a correct choice, which was "C".

It was not blank.

It does not affect the understanding of a candidate.

It was not blank It does not affect the understanding, of a candidate It does not affect candidates understanding

11. 2.

i.

12. 21.

i.

13. 25.

i.

14. 38.

i.

15. 40.

i.

16. 44.

i.

17. 55.

i.

18. 76.

i.

2 LNJ AD, (2013)

in relation to the "stem" of the question.

Not that more than one correct choice was in the question & answer. Option "B" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "A" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "D" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "B" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "D" was in answer key sheet.

Not that more than one correct choice was in the question & answer. Option "A" was in answer key sheet.

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

19. 87.

i.

Not that more than one correct choice was in the question & answer. Option "C" was in answer key sheet.

9. The allegation of wrong answer key in respect of 11 questions as made by the writpetitioners was denied by the writ-respondents by stating as under: 20.

22.

Answer key "C" claimed wrong iAnswer key "B" claimed wrong 21.

96.

22.

49.

Answer key "B" claimed wrong

23.

24.

25.

3.

16.

46.

Answer key "D" claimed wrong Answer key "D" claimed wrong Answer key "D" claimed wrong

26.

50.

Answer key "A" claimed wrong

27.

62.

Answer key "D" claimed wrong

28.

29.

65.

69.

Answer key "C" claimed wrong Answer key "D" claimed wrong

30.

30.

Answer key "A" claimed wrong i The new merit position of the students bearing Roll Nos.133202, 131280, 131253, 324146, 321468, 152113, 131465, 131094, 322893 and 132523 were imaginary. The same answer keys, processes and procedure were applicable to all examinees. In total, 50027 candidates appeared in the MBBS/BDS admission test for the year 2011 out of which, only 3040 student qualified admission to the 2011-2012 sessions on the basis of choice and merit. Out of the total number of the examinees, to j were registered for English version wherefrom 423 students appeared in the admission test and from them, 18 students were successful, 10. During the pendency of the Rule, on the prayer of the writ-petitioners, the writrespondents were restrained by the High Court Division by an order dated 08.02.2012 from filling up 153 seats which fell vacant due to

7

transfer or non admission of some students till disposal of the Rule. It further appears that the High Court Division by order dated 15.03.2012 requested the eminent educationists, the Dean of the faculty of science and the Chairman of the Department of English of Dhaka University to justify as to whether the two versions of question papers complained of were different, side by side to see whether the allegations as to the in-correctness of the question papers and the answer key were justified. The said educationists were also requested to re-check and reassess the answer scripts of the children of the writ-petitioners on the basis of the correct questions and the answer key and report accordingly. The said experts submitted their detailed report before the High Court Division with their comments. It also appears that copies of the aforesaid assessment papers by the aforesaid prominent experts together with other documents, were handed over to both parties, i.e. the learned Advocates for the petitioners and the learned Attorney General for their perusal and thereafter, to make reply thereto, if any, by filing affidavit, but no reply on the same was given from the side of the writ-respondents.

11. The writ-petitioners filed a supplementary affidavit on 21.05.2012 stating that after obtaining the copies of the answer key and the answer scripts from the writ-respondents on 14.02.2012, pursuant to an order of the Court dated 08.02.2012, it was revealed that apart from the 19 anomalies stated in the writ petition, 11 (eleven) other questions possessed wrong answer key (the questions which possessed wrong answer key are not quoted here but those have been quoted in the judgment of the High Court Division). For the errors in the questions outlined in the writ petition being 19 in number and 11 errors in the answer key, the

8 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

new test score of the students involved in the writ petition would be as follows: (1) Zumana Mustafa, Roll: 133202, (2) Samia Afroz, Roll:131280, (3) Marzuka Ahmed Zakia, Roll:131253, (4) Zerin Tasnim Sara, Roll:324146, (5) Zishan Sarwardi, Roll:321468, (6) Ishrat Akhter Emran, Roll: 152113, (7) Noor-e-Jannat Meem, Roll: 131465, (8) Sayma Sultana Mou, Roll:131094, (9) Ahad Nazmul Ahsan, Roll:322893 and (10) Sayma Islam, Roll:32523 who are the daughters, son and daughter respectively of the writpetitioners 63.00 (out of 100 marks), 52.00(out of 100 marks), 68.25(out of 100 marks), 67.00(out of 100 marks), 69.75(out of 100 marks), 73.25(out of 100 marks), 67.50(out of 100 marks), 44.25 (out of 100 marks), 64.00(out of 100 marks) and 65.25(out of 100 marks) and they prayed that since the aforesaid candidates became eligible for admission in the MBBS/BDS course, they be allowed to be admitted in the Government Medical and Dental Colleges as per their eligibility.

12. Another writ petition being No.8924 of 2011 was filed by the father of another student who also sat for the admission test of the MBBS/BDS course for the session 9011-2012 making similar allegations as made in Writ Petition No.8556 of 2011. A Division Bench of the High Court Division which heard both writ petitions together considering the question papers, the answer key and the answer scripts of the 11 (eleven) students involved in the two writ petitions and the experts' opinion found that five students of Writ Petition No.8556 of 2011 who are the children of writ-petitioner Nos.3, 4, 5,

2 LNJ AD, (2013)

6 and 10, namely: Marzuka Ahmed Zakia, Roll: 131253, Zerin Tasnim Sara, Roll: 324146, Zishan Sarwardi, Roll: 321468, Israt Akhter Emran, Roll: 152113 and Sayma Islam, Roll: 132523 secured marks in excess of the qualifying minimum score 152.25 for admission into the MBBS/BDS courses under the Government Medical/Dental Colleges as specified by the writ-respondents in their affidavits and accordingly, by the impugned judgment and order, disposed of the Rules directing the writ-respondents to make necessary arrangements immediately for their admission.

The High Court Division came to the further finding that the daughter of Writ Petition No. 8924 of 2011 and the children of 5 other writpetitioners of Writ Petition No. 8556 of 2011 could not secure the minimum score of 152.25, so they failed to take advantage of being eligible to get admitted in the Government Medical /Dental Colleges.

The High Court Division further observed that: "Although under the terms of these two Rules, the admission process of Medical students for the session 2011-2012 was to be declared as being without lawful authority, we are not inclined to confine ourselves to within the four corners of the same in view of the fact that this Court, in the midst of the Rule hearing passed an order of stay regarding the admission to 153 vacant seats and, accordingly, those seats have been kept vacant, we find that the purpose of issuance of the Rule has not been lost as these petitioners can be accommodated in those vacant seats by the order of this Court and therefore, we are disposing of these Rules granting the

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

relief to the children of petitioner Nos.3, 4, 5, 6 and 10 of Writ Petition No.8556 of 2011 only, keeping in view the exigencies of consequential relief 13. The High Court Division also directed the Secretary, Ministry of Cabinet Division to investigate into the matter by at least a 3 Member Committee, headed by an eminent educationist, appointing the Secretary, Ministry of Education as the Member Secretary and the Secretary, Ministry of Information Technology Communication (ITC) as its Member within one month from the date of receipt of the judgment and order and take disciplinary action against the responsible persons according to law without fail to prevent recurrence of similar incidents affecting the future lives of millions of students which will ultimately affect the nation as a whole on the observations that the conduct of respondent Nos.3 and 4 (the Director General of Health Services, Directorate of Health and the Director, Medical Education and Health Manpower Development, Directorate General of Health Services) who were entrusted with the sacred responsibility of conducting the examination and make arrangements for the admission test of the medical students of the session 2011-2012 failed to perform their duties putting at stake the fate of millions of students. The High Court Division further observed that the said respondents have dealt with the matter in a very cavalier fashion, so they must be brought to task.

14. Being aggrieved by and dissatisfied with the disposal of the Rule issued in Writ Petition No.8556 of 2011 in the above manner the writrespondents have filed this petition for leave to appeal.

15. Mr. Mahbubey Alam, learned Attorney General, who also appeared before the High Court Division at the time of hearing of the

9

Rules, has made similar submissions as were made before the High Court Division which were not accepted by the learned Judges of the High Court Division. His submissions are that the admission of the students with a score of above 152.25 having been already completed on 31.10.2011 and the remaining 153 vacant seats have been allocated to the said students and the sons and daughters of the writ-petitioners being below the merit score of 150, they were not eligible for admission in the MBBS/BDS courses (Government and Non-government), the High Court Division erred in law in giving the directions to make arrangements for the admission of the 5(five) children of petitioners into the MBBS/BDS courses in the Government Medical/Dental Colleges; the advertisement dated 09.02.2012 (annexure-I to the writ petition) having no impact on the position of the sons and daughters of the writpetitioners and there being no reason to stay the advertisement but due to the issuance of the order of stay the students who had been allocated the remaining 153 seats have seriously been affected and thus, the system of admission has been disrupted, the High Court Division erred in law in giving the above direction inasmuch as in case the children of the writ-petitioners are allowed to be admitted in the Government Medical/Dental Colleges, the other unsuccessful candidates may follow them and come to the Court which will have far reaching consequences; the High Court Division erred in law in entertaining the writ petition inasmuch as the writ petition was not maintainable as the writ-petitioners were not personally aggrieved persons and the issues involved in the writ petitions also involved disputed question of facts adjudication of which could not be embarked upon in a summary proceeding under article 102 of the Constitution; the High Court Division erred in law in making

10 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

the observations and giving directions in the impugned judgment and order relying on the opinion of the two professors of Dhaka University accepting as experts on the subject inasmuch as the experts appointed by it might have been inclined towards the writ-petitioners and consequently might have been persuaded to give favourable marks as well as to submit a favourable report to the Court and in the absence of any opportunity to cross examine the experts on their assessment of the relevant answer scripts as well as the report regarding the comparative precision and exactitude of the bilingual question papers and answer key could not be accepted legally as the Evidence Act, 1872 has neither prescribed nor has made any provision in relation to the admissibility of such a report; the question papers having been brought before the Court and on perusal of the same, it having appeared that except one question, there was no error or mistake in other questions, the High Court Division erred in law in sending the questions to two teachers of Dhaka University and wrongly relied upon their observations without considering that their observations were wrong on the face of the record.

16. Mr. Muzammel Haq, learned Counsel, entering caveat on behalf of the writ-petitionerrespondents, on the other hand, supported the impugned and order and further submitted that due to the order of stay of operation of the judgment and order of the High Court Division passed by this Division, 5 (five) children of the writ-petitioners who quaimea 101 admission in the MBBS/BDS courses in the Government Medical/Dental Colleges for the session 2011-2012 could not get themselves admitted and through the process, they lost one year. He prayed for dismissing the leave petition.

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17. From the impugned judgment and order of the High Court Division, it appears that the learned Attorney General took serious objection as to the report sent by the two educationist, one being the Dean of the Faculty of Science and the other, the Chairman of the Department of English, both of Dhaka University who were requested by the High Court Division to give their opinion as to whether the two versions of the question papers, the English and the Bangla complained of in the writ petition "were different side by side to see whether the allegations as to in-correctness of the question papers and the answer key were justified." The said two educationists were also requested to re-check and reassess the answer scripts of the children of the writpetitioners on the basis of correct questions and the answer key and report accordingly. The objection of the learned Attorney General was that the said educationists might have prepared the report under the influence of the writ-petitioners, so the same should not have been be accepted by the High Court Division.

Before this Court, the learned Attorney General also has taken similar objection. The High Court Division rejected the said objection of the learned Attorney General on the finding that at the time of "engaging the experts in this task, clear and specific terms of reference were made available to them in presence of both the parties. It is to be noted that the experts are senior professors of Dhaka University and as such, there must not be any objection as to their competence, and no objection as such was ever made by either party at time of their appointment. So, in our opinion, a professor of the Dhaka University possesses the requisite experience in his or her specialized field." The learned Judges further observed that in their considered opinion the concerned experts are independent, neutral and actual professionals

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

with the substantive experience and expertise with regard to matters relating to examinations including admission tests. We are in one with the view taken by the High Court Division as to the competence of the two experts in giving the report on the subject. We further add that the High Court Division passed the order seeking opinion of the two experts on 15.03.2012 and the experts submitted their reports on 02.05.2012, but no affidavit was filed by writ-respondent Nos.3 and 4 alleging any influence upon them by the writ-petitioners in preparing the report. It is also significant to note that at the time of their engagement as experts on the subject no objection was raised on behalf of the writ-respondents. As it appears from the impugned judgment and order, the learned Attorney General simply raised the allegation of influence of the writpetitioners upon the experts in preparing the report only for the sake of objection, as he could not bring any allegation of relationship of the writ-petitioners or their children, (the candidates in the MBBS/BDS admission test) or any connection with the said two professors of Dhaka University. Even in the leave petition, nothing of that sort has been alleged. It is also pertinent to note that the learned Attorney General did not raise any objection before the High Court Division as to the competency of the said two experts in giving their opinion on the subject. The objection of the teamed Attorney General as to me repon 01 me experts upimu us just etherical and at the same time unkind.

18. The High Court Division rejected the submission of the learned Attorney General that the writ-petitioners had no locus standi to file the writ petition as they were not personally aggrieved holding that "the petitioners have sufficient interest and are aggrieved by the actions of the respondents.

11

" In taking the said view the High Court Division relied upon the cases of Kazi Mokhlesur Rahman -vs- Bangladesh and others, 26 DLR (AD) 44; Dr. Mohiuddin Farque -vs- Bangladesh, 49 DLR (AD) 1; Ekushe Televison -vs- Bangladesh, 54DLR (AD)130 and Brae Bank-vs-Bangladesh, 54 DLR(AD)34. We do not find anything wrong with the High Court Division in holding so.

We like to further add that the writpetitioners are none else but the father of 10 (ten) students who appeared in the admission test with a view to get themselves admitted into the MBBS/BDS courses for the session 2011-2012 and due to the errors in the question papers and the answer key when their said hopes were going to be shattered and thus their future was going to be ruined, they were the most concerned persons about the future of their children, because in the long run, they shall have to bear their burden in case they failed to establish themselves in their lives by pursuing proper education.

Therefore, the writ-petitioners were ; definitely the persons aggrieved within the meaning of article 102 of the Constitution and they had the locus standi to file the writ petitions.

19. The learned Attorney General also sought to knock out the writ-petitioners from their right to invoking the power of judicial review of the High Court Division under article 102 of the Constitution on the submission that the issues involved in the writ petition were disputed questions of fact which could not be adjudicated upon in writ jurisdiction, which is decided in a summary manner relying on the affidavit-evidence only. He elaborated his point contending further that the "question papers" could not be made amenable to writ jurisdiction. Let us

12 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

see how far the learned Attorney General was correct in making this submission.

20. A fact involved in a writ petition does not become disputed simply because the same is denied or disputed by a contending party, unless the veracity of the same is put under challenge or is put under doubt by filing any counter document/paper which, prima facie, renders a fact emerging from a document/paper annexed to the writ petition relied upon by the writ-petitioner^) doubtful or questionable. In this case, the writpetitioners specifically stated in the writ petition that their children appeared in the admission test of the MBBS and BDS courses (Government and Non-Government) held on 30.09.2011 for the session 20112012 and the test were held under Multiple Choice Question (MCQ). Soon after the admission test had been over, the candidates while discussing among themselves came to know that there were serious errors and anomalies between the Bangla and the English versions of the question papers of the test which may severely affect the merit list for the English medium/ versions students and they identified as many as 19 (nineteen) errors/ anomalies/inconsistencies and other discrepancies between the English and the Bangla versions of the said question papers as a whole affecting their merit list.

There was no dispute about the authenticity of the question papers. The only question to be decided was as to whether there were errors/anomalies/inconsistencies and other discrepancies between the Bangla and the English versions of the question papers as identified by the children of the writpetitioner and if there were errors/anomalies/ inconsistencies in the question papers whether those had affected the merit lists of the children of the petitioners. The admission

2 LNJ AD, (2013)

test was heia unuci MCQ system so, if the questions were set correctly in clear and unambiguous language without any error/ anomaly/inconsistency and other discrepancies between the two versions the English and the Bangla with the corresponding correct answers, there would have been no confusion in choosing the correct answers. In the impugned judgment, the questions have been reproduced. From the impugned judgment, it further appears that by filing a supplementary affidavit (copy not included in the paper book) on 21.05.2012 the writpetitioners stated that after obtaining the copies of the answer key and the answer scripts from the respondents on 14.02.2012, pursuant to an order of the Court passed on 08.02.2012, it was revealed that apart from the above 19 anomalies, 11 (eleven) other questions possessed wrong answer key (these have been quoted hereinbefore). These assertions were not denied by the writrespondents by filing any affidavit; interestingly writ-respondent Nos.3 and 4 filed two affidavits-in-opposition. In the first affidavit-in-opposition, the respondents admitted that there were some mistakes/errors /discrepancies in the Bangla and the English versions of the question papers by saying that in some question, there were partial mistakes and in some questions, the answers were partially wrong. But, subsequently, by filing another affidavit-inopposition, the respondents took a "U" turn and tried to justify their mistakes/errors. In this regard, the observations of the High Court Division are very relevant to see the conduct of respondent Nos.3 and 4. The High Court Division observed that: "It may be mentioned here that initially the answering respondents (respondents No.l, 3 and 4) were represented by

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

Senior Advocate Mr. Abdul Matin Khasru who upon appearing before this Court, endeavoured to accommodate the children of the petitioners for admission to the government medical/dental colleges through amicable discussions with the respondents but it seems that his aforesaid attempts could not see the light of day for the reasons bent, (sic) known to the respondents. Subsequently, the learned Attorney General himself appeared in these cases and took the stance of contesting the Rules by opposing the prayer of the petitioners vehemently."

21. The High Court Division took exception to the said dual stand of the contesting respondents with the further observations that: ". . .we find that the new stance of the respondents is unfair and unjust and, further, the respondents are estopped by law from changing their position as, initially they admitted their fault in performing their statutory duties and by denying the same subsequently, they cannot ignore actions complained of.

22. The above dual and contradictory stand of the respondents do not appear to us bonafide. When the respondents themselves admitted that there were errors/mistakes/ discrepancies in the Bangla and the English versions of the question papers which was also the claim of the writ-petitioners how they could claim that the questions involved in the writ petition were disputed questions of fact 23. Another pertinent question is that was the High Court Division justified in requesting the two experts, namely, the Dean

13

of the Faculty of Science and the head of the Department English of Dhaka University to see as to whether the two versions of the question papers complained of in the writ petition were different, side by side to see whether the allegations as to the in-correctness of the question papers and the answer key were justified and also to re-check and reassess the answer scripts of the children of the petitioners on the basis of the correct questions and answer key in deciding the merit of the Rule. It is a well settled legal proposition that the procedure followed in disposing of an application under article 102 of the Constitution is summary and such application are decided on affidavitevidence, that is, the annexures annexed to the writ petition, the affidavit-in-opposition and further affidavits, if there be any, in support of the case of the respective party as asserted therein; where a fact has to be tested on the basis of evidence to be adduced by the parties following the rules of evidence as provided in the Evidence Act including the right of the other side to cross-examine a witness that fact cannot be decided by the High Court Division in exercising the power of judicial review. But there is no bar in taking the aid of the provisions of the Evidence Act if the Court feels it necessary to consider a fact involved in the writ petition and to consider a document produced by a party. The Court exercising the power of judicial review may follow such procedure and may make such orders as may appear to it to be just to decide a point involved in the writ petition. We like to observe further that fin a proceeding under article 102 of the Constitution, the provisions of the Code of Civil Procedure as such are not applicable, but to decide the questions involved in the petition, the principles of the relevant provisions of the Code of Civil Procedure may be applied. So, in the instant case, the High Court Division had

14 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

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the option to invoke the principles of the provisions of section 151 of the Code of Civil Procedure to request the two experts of Dhaka University to give their opinion on the subject to secure the ends of justice and thus to decide the issues involved in the writ petitions. In the facts and circumstances of the case, the High Court Division followed the right procedure in seeking opinion of the two professors of Dhaka University .

educationist of Dhaka University with the observation that "our findings tally with those of the aforesaid report. " In doing so the learned Judges did not commit any procedural error or mistake and the procedure, so adopted, did not at all prejudice the respondents. The High Court Division rightly observed that the concerned authority was negligent and callous in performing the duties as to setting question papers as well as in setting the answer key.

24. The opinion of an expert is not conclusive evidence, it has to be assessed and considered like any other ordinary evidence and a Court as well is not bound to act on the opinion of an expert. While dealing with a writ petition, the High Court Division is quite competent to deal with the factual issues involved therein either by dealing with the same on its own or through the aid of experts in order to arrive at a fair and correct conclusion and if the Court which deals with a writ petition does not consider a fact disputed determination of which would require thorough examination by taking evidence and if the Court is satisfied that it. can determine the factual issues on the basis of papers available before it and by applying its ordinary prudence, then there is no legal bar to adjudicate such questions. Here, in the instant case, the High Court Division did not decide the matter solely on the report of the two experts, the learned Judges themselves took the trouble to examine the papers, namely: the question papers, the answer key and the answer scripts of 11 (eleven) affected students and found apparent material errors and inconsistencies between the two bilingual sets of question papers and also mistakes in both the question papers as well as in the answer key to the English version which were so apparent that the same was detectable by the Court or by any educationist and then took into consideration of the report of two

25. In the context, the High Court Division rightly found that there was no legal basis of the submission made by the learned Attorney General that the expert's report does not have any evidentiary value as the said experts had not been cross-examined or their report had not been filed by swearing affidavit and as such, it could not take judicial notice of the same under the Evidence Act inasmuch as the Court is always empowered to scrutinise and consider any document for the purpose of dispensing proper and fair justice. Against the opinion of the two experts, the writ-respondents did not file any objection by filing any affidavit. We also do not find any rationale in the submission of the learned Attorney General that the expert report does not have any evidentiary value as the said experts were not subject to cross examination or their reports were not filed by filing any affidavit. It is to be kept in mind that it is the Court not the party which sought the assistance of the experts for arriving at a proper and fair decision of the issue involved in the writ petition. It is to be further kept in mind that in the writ petition authenticity of any document was not involved, the question was whether the Court was competent to entertain the contents of the report of the experts and as such,

2 LNJ AD, (2013) Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

the question of giving chance to the respondents to examine the two experts did not arise at all.

26. In view of the fact that in the writ petitions, the question of admission of the children of the writ-petitioners into the MBBS/BDS courses in the Government Medical/Dental Colleges for the session 20112012 was involved, the High Court Division rightly entertained the writ petition, otherwise if on mere allegation of dispute as to the question of facts as raised by the writrespondents, they were pushed back to the civil Court, the matter would have been dragged and thus the very purpose of taking the matter to the Court of law would have been frustrated.

Moreso, in the instant case time was an important factor. As already found hereinbefore,[there was no dispute as to the question of fact, so we find no substance in the submission of the learned Attorney General that there being disputed question of fact, the High Court Division was not justified in entertaining the writ petition.

27. From the impugned judgment and order, it appears that out of 11 children of the two writpetitions only five were qualified for admission in the MBBS/BDS course in the Government Medical/Dental Colleges as they secured in excess of the qualifying minimum score of 152.25 for such admission. From the judgment and order, it further appears that in finding the five children of the five petitioners to have secured score more than 152.25 marks the learned Judges aggregated the marks secured in the written examination and the admitted 100 marks of SSC and HSC and thus they secured 156, 152.75, 156.50, 160.00 and 152.25 marks respectively. The learned Attorney General could not show with reference to any paper that the said calculation of total score by the learned Judges of the High Court Division was wrong.

15

28. It further appears that the writ respondents were not fair in dealing with this case inasmuch as from the judgment of the High Court it appears that when the writ petitions were fixed for hearing on 14.11.2011 they persisted in taking the consecutive adjournments and thus delayed the disposal of the matter besides taking two dual/ contradictory stand. It is more unfortunate that when the High Court Division directed the writ-respondents to make immediate necessary arrangements for admission of the children of five writ-petitioners, namely: 3, 4, 5, 6 and 10 in the MBBS/BDS course in the Government Medical/Dental Colleges, the writ-respondents without complying with the said direction of the High Court Division filed Civil Miscellaneous Petition No.689 of 2012 and on 21.06.2012 obtained the order of stay of operation of the judgment and order of the High Court Division from this Division subject to the condition that they shall keep 5(five) seats vacant, but, in the meantime, the session 2011-2012 expired for no default of the children of 5(five) petitioners. It further appears that considering the fact that the Rule issued in the writ petition shall become infructuous the High Court Division by order dated 08.02.2012 restrained the respondents from filling up 153 vacant seats in the MBBS/BDS course in the Government Medical/Dental Colleges which fell vacant due to the transfer or nonadmission of some students till disposal of the Rule. Thus, it is clear that the High Court Division did not at all interfere with the entire admission process in the Medical/ Dental Colleges. This Division also passed the order of stay of operation of the judgment and order of the High Court Division subject to keeping the five seats vacant, that is, for the five children of writ-

16 Govt. of Bangladesh and others Vs. Md. Ghulam Mustafa and others, (Md. Abdul Wahhab Miah, J.)

petitioner Nos.3, 4, 5, 6 and 10, so there was no difficulty on the part of the respondents to make arrangements for admission of the said 5(five) students subject to the result of the leave petition, but they did not.

29. We do not find any reason on the part of the learned Attorney General to be apprehensive that if the judgment and order of the High Court Division in entertaining a dispute relating to an admission test like the instant one is upheld, this may lead to a serious consequences in the administration of medical education as well as other education and hundreds of writ petitions would be filed inasmuch as every case has its own peculiarity and feature. As already stated hereinbefcretin the instant case, the High Court Division entertained the writ petition and interfered in the matter as there were apparent errors and inconsistencies between two bilingual sets of question papers as well as in the answer key to the English version affecting the fate of the children of the petitioners as to their admission in the MBBS/BDS course in the Government and Medical/Dental Colleges and in fact, those who were genuinely affected because of the apparent errors/anomalies/ inconsistencies in the question papers of the two versions, the Bangla and the English came before the Court and not the hundreds. In the context, the High Court Division rightly entertained the writ petition.

30. However, we make it very clear that in entertaining an application under article 102 of this nature, the High Court Division shall have to be extremely cautious and see that the process of admission is not hampered and jeopardised just on mere filing of an application by any body and it shall interfere in a rare of the rarest case like the instant one.

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31. The five students who are the children of writ-petitioner Nos.3, 4, 5, 6 and 10 in (names have been mentioned hereinbefore) who were found eligible for admission in the MBBS/BDS course in the Government Medical/Dental Colleges could not get themselves admitted because of the order of stay of operation of the impugned judgment and order obtained by the writ-respondentpetitioners from this Division for no fault of their own! and in the process the academic year 2011-2012 expired. Be that as it may, the five students who were found eligible by the High Court Division for admission in the MBBS/BDS course in the Government Medical/Dental Colleges cannot be allowed to suffer more and we feel that complete justice will be done if we direct the writ-respondentpetitioners herein to make immediate arrangements for their admission into the MBBS/BDS course in the Government Medical/Dental Colleges for the session 2012-2013. Accordingly, the writ-respondentpetitioners are directed to take immediate arrangements for admission of 5(five) children of the petitioners in the Government Medical/Dental Colleges for the session 2012-2013. The 5(five) students shall not have any claim for admission in any particular Government Medical/Dental College, but the writ-respondents shall keep in mind the Government Medical/Dental College where they could get admission in the session 2011-2012 as per the marks secured by them as calculated by the High Court Division (marks have been mentioned hereinbefore student wise).

32. For the discussions made above, we do not find any error in the impugned judgment and order passed by the High Court Division calling for our interference.

With the above observations directions the petition is dismissed.

Ed.

and