Appellate Division Cases
(Civil)
PARTIES
Chief Controller,
Import and Export and others ………………………Appellants
-Vs-
Md. Faruk Ahmed ………………………………….Respondent
JUSTICE
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 6th December 2005
The Import Policy Order 1997-2002, Article 18, Clause 21, Section 20.The Constitution of Bangladesh. Articles 20 & 27. Bangladesh Vs. Md. Azizur Rahman reported in 46 DLR(AD) 19.
Directing the respondents to issue clearance permit in respect of 10 (ten) re-conditioned vehicles imported by him within a period of 10 (ten) days from the receipt of the judgment ……………………. (1)
But the writ petitioner’s case is otherwise as he imported 10 cars of more than 5 years old not for his personal use but for profit and rather for commercial purpose and the High Court Division failed to consider this aspect of the matter inasmuch as erred in law in not considering the provision of clause 21 of the Import Order 1997-2002 wherein the power to make order to release is vested with the Ministry of Commerce and the authority/power to amend, change and relax the rules lies at the discretion of the Government by issuing C.P. inasmuch as on discriminatory treatment amongst the class has been done while exercising the direction. In that view of the matter, the order of the High Court Division is contrary to the provision of law and as such the impugned judgment and order is not sustainable in law ……………..(6)
The High Court Division is not, as a matter of fact, to decide as to whether the import in question is of 5 years or more than that as have been found by the authority entrusted upon to determine the same nor could see how the discretion has been exercised by the authority invoking section 21 of the Import Policy ……………..(16)
Under rule 21 of the Import Policy relaxing the rule 20 thereof in respect of a import of the reconditioned car brought for personal use and 10 reconditioned cars for the use in a Government project which are above 5 years old and not for any commercial purpose as in the case of the writ petitioner. The authority concerned has classified these 2 imports for personal one separate form the commercial imports for profit and the same could not be treated as discriminatory offending the equality clause in Article 27 of the Constitution …………………(18)
Civil Appeal No 232 of 2003 (From the judgment and order dated 19 March 2003 passed by the High Court Division in Writ Petition No. 4901 of 2002).
Fida M. Kamal, Additional Attorney General, instructed by Md. Ahsanullah Patwary,
Advocate-on-Record …………….. for the petitioners.
Dr. M. Zahir, Senior Advocate [A.Z.M. Fariduzzaman, Advocate (appeared with the
leave of the Court) with him], instructed by Mrs. Sufia Khatun, Advocate-on Record………. For the Respondent
JUDGMENT
1. Mohammad Fazlul Karim J: This appeal by leave arose out of judgment and order dated 19.03.2003 passed by the High Court Division in Writ Petition No. 4901 of 2002 making the rule absolute directing the respondents to issue clearance permit in respect of 10 (ten) re-conditioned vehicles imported by him within a period of 10 (ten) days from the receipt of the judgment.
2. The respondent filed the said Writ Petition stating, inter-alia, that in course of business he opened Letters of Credit bein? Nos. 1203/01/0045 dated 22.01.2002 and
1203/02/01/0172 dated 06.03.2003 for import of 10 units of reconditioned vehicles from
Japan. He opened the Letters of Credit under the Pre-shipment Inspection Scheme and the respondent deposited the required fees for pre-shipment inspection as per law and before shipment of the goods the approved Pre-shipment Agent Bureau Varitas inspected the
goods and issued CRF certificate being Nos. BDH/2002/1202/2/C dated 19.3.2002,
BDH/2002/3216/l/C dated 9.4.2002 and in the certificate the PSI Agent certified the
manufacture year of the imported vehicles as 1997 and the vehicles are imported as per
import policy of the country at the relevant time. After shipment of the goods the respondent received the invoice, bulls of lading and other relevant shipping documents from the L.C. opening bank after endorsement. That after arrival of the goods at Chittagong port the writ petitioner submitted bills of entry being Nos. C-74967 dated 15.4.2002. C72972 dated 6.4.2002. C-74959 dated 15.4.2002, C-74956 dated 15.4.2002, C81637 dated 8.5.2002 along with CRF certificate. Upon of the bills of entry for releasing 10 (ten) imported vehicles the customs authority raised objections regarding the year of manufacture of the aforesaid vehicles and passed an opinion for obtaining C.P. from the respondent No. 1. After the opinion of the customs authority the writ petitioner filed an application before the writ-respondent No.l for C.P. for the said vehicles on 29.5.2002 with all necessary documents. That thereafter the writ-respondent No.l wanted certain papers dated 3.7.2002 and the writ petitioner in complying with the letter submitted the wanted documents on. 8.8.2002. As the delay in issuance of C.P. will cause pecuniary loss to the writ petitioner a notice demanding justice was served upon the writ-respondent No.l for issuance of C.P. but with no redress. The writ petitioner then filed Writ Petition No. 4611 of 2002 before the High Court Division for a direction upon the writ-respondent No.l for issuance of C.P. and direction as prayed for was issued. The aforesaid direction was communicated to the writ respondent No.l who expressed the latest position of the authority saying that the writ-respondent No.2 has taken away his power by Memo dated 22.8.2002 and as such the writ respondent No.2 is now the competent authority to issue C.P. as per article 18 of the Import Policy Order 1997-2002.
3. That the High Court Division made rule absolute on the ground that 6/7 years old reconditioned vehicles were permitted to be imported by others but 10 vehicles which the writ petitioner has imported are also more than 5 years old and there has been discrimination as vehicle imported by others of more than 5 years old were released but the writ petitioner was not favoured.
4. Leave was granted to consider the submissions as under: “The Mr. Fida M. Kamal learned Additional Attorney General has drawn our attention to Annexure-C to show that
one individual was permitted to import one reconditioned vehicle which was more than five years old of his personal use and in another case vehicles more than 5 years old for use in the Government Project were permitted to be imported. But the petitioner’s case is otherwise as the imported 10 cars more than 5 years old were not for his personal use
rather for commercial purpose and the High Court Division failed to consider this aspect of the matter. The learned Additional Attorney General further submits that the High Court Division erred in law in not considering the provision of clause 21 of the Import Policy Order 1997-2002 inasmuch as the power to make order to release is vested with the Ministry of Commerce and the order of the High Court Division is contrary to the
provision of law and as such the impugned judgment and order passed by the High Court Division is not sustainable in Law.”
5. Fida M. Kamal, learned Additional Attorney General appearing for the petitioners submitted that as per Annexure-C to writ petition in one case. Certain individual was permitted to import one reconditioned vehicle which was of more than five years old solely for his own personal use and in another case vehicles of more than 5 years old were permitted to be imported for use in the Government project.
6. But the writ petitioner’s case is otherwise as he imported 10 cars of more than 5 years old not for his personal use but for profit and rather for commercial purpose and the High
Court Division failed to consider this aspect of the matter inasmuch as erred in law in not considering the provision of clause 21 of the Import Order 1997-2002 wherein the power to make order to release is vested with the Ministry of Commerce and the authority/power to amend, change and relax the rules lies at the discretion of the
Government by issuing C.P. inasmuch as on discriminatory treatment amongst the class has been done while exercising the direction. In that view of the matter, the order of the
High Court Division is contrary to the provision of law and as such the impugned judgment and order is not sustainable in law.
7. Dr. M. Zahir, the learned Counsel appearing for the respondent submitted that the appellant has failed to appreciate that the refusal to issue C.P. (Annexnure-F) in favour
of the writ-petitioner is violative of Article 27 of the Constition of the People’s Republic of Bangladesh. The learned Counsel further submitted that the appellant issued C.P. in favour of others (Annexure-G, G-l, G-2,1-1,1-2.1-3, 1-4 of the writ petition) which are 6-7 years old and this fact is not denied by the appellant and as such the refusal to issue C.P. in favour of the respondent is clearly discriminatory offending the equality principle. The learned Counsel lastly submitted that the appellants as the C.P. issuing authority cannot exercise the power to issue C.P. in such a discriminatory manner and as such the refusal to issuance of C.P. in favour of the respondent is violative of the equality provision of the Constitution of the Pepole’s Republic of Bangladesh.
8. On perusal of the impugned order it appears that the High Court Division confined itself on the point of discrimination against the petitioner as regard the import of reconditioned car beyond 5 years old imported in respect of two others consignments and the refusal in respect of the writ-respondent was to the prejudice and detriment of his interest in violation of the principle of equality as enshrined in the Constitution.
9. The authority has formulated certain rule for control expediting and regulating the
imports in accordance with law in any particular period.
10. The provision of section 20 of the Import Policy of 1997 to 2000 Annexure-Fl to the
Writ Petition reads as under: (Bangla)
11. Thus the said provision provides that any import contrary to any provision of the Order or any regulation issued by the Chief Controller of Export and Import shall be
deemed to have been made in contravention of the provisions of law but rule 21 thereof
runs as under: (Bangla)
12. The said rule provides that in case of necessity the Government may change, amend or relax any of the provision therein.
13. The respondent though filed an application for relaxation of the 5 years rule under rule 21 in respect of this imports but the same was rejected for the reason in Annexure-F to the writ petition dated 26.9.2002.
14. The authority is authorized to exercise the discretion provided under rule 21 thereof only in case of necessity and the said discretion has been attached to the Government action which is subjective to the authority exercising the said siscretion.
15. The Chief Controller of Export and Import has rejected the said application of the respondent stating the reason therefor. The High Court Division is not an appellate forum to sit in an appeal over the said decision of the authority. Rule 19 of the Rules provided for appeal/review for revision against the said impugned order passed by the Chief
Controller of Export and Import rejecting the prayer of the respondent, which the respondent has failed to avail, instead, approached the Hish Court Division on the ground of discrimination.
16. We do not find that the Government in exercise of discretionary power under rule 21 has made any discriminatory treatment between the respondent and others in favour of whom the rule for import of car of above 5 years old was allowed. The High Court
Division is not, as a matter of fact, to decide as to whether the import in question is of 5
years or more than that as have been found by the authority entrusted upon to determine the same nor could see how the discretion has been exercised by the authority invoking section 21 of the Import Policy. The respondent has neither availed of the form of appeal or review against such determination of fact by the Chief Controller of Export and Import.
17. In view of the disputed assertion regarding the age of the imports in question the High
Court Division exceeded its jurisdiction in embarking upon deciding the disputed question of fact in an application under Article 102 of the Constitution.
18. The appellants have asserted in the affidavit-in-opposition that the authority has exercised its discretion under rule 21 of the Import Policy relaxing the rule 20 thereof in
respect of a import of the reconditioned car brought for personal use and 10 reconditioned cars for the use in a Government project which are above 5 years old and not for any commercial purpose as in the case of the writ petitioner. The authority concerned has classified these 2 imports for personal one separate form the commercial imports for profit and the same could not be treated as discriminatory offending the equality clause in Article 27 of the Constitution.
19. In the case of Bangladesh vs. Md. Azizur Rahman reported in 46 DLR (AD) 19 it has
been held that: ” The term” equality before law “should not be inteipreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions
and circumstances in which they are placed or special quality and characteristics which some of them may possess but which are lacking in others. In fact, this term means that all persons are not equal in all respects and that persons similarly situated should be treated alike. Equal protection of law is a guarantee that similar people should be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. A single law therefore cannot be applied uniformly to all persons
disregarding the basic differences among them, and if these differences are identified, then the persons may be classified into different groups or categories according to those distinctions. Therefore a classification is reasonable if it is made to give special treatment to a backward section of the people. It is also permissible to dole out distributive justice by taxing the privileged class and subsidizing the poor section of the people. A classification based on distinct characteristics cannot be assailed as arbitrary. Secondly,
a classification to be reasonable it must have direct nexus to the object which the classification seeks to achieve.”
20. In view of the above, we find substance in the submission of the learned Additional
Attorney General for the appellants.
21. The appeal is allowed without any order as to costs.
Ed.
Source: IV ADC (2007), 208