Mahbubul Alam (Md.) Vs. Bangladesh and Others, 2006, (HCD)

 Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

Nozrul Islam Chowdhury J

Syed Refaat Ahmed J

Mahbubul Alam (Md.)……………..Petitioner

Vs.

Bangladesh and Others…………..Respondents

 Judgment

May 24, 2006.

Lawyers involved:

MA Awal, Advocate—For the Petitioner.

Subrata Saha, Advocate—For Respondent No. 5.

Md. Taherul Islam, Advocate—For the Petitioner (In WP 2560 of 2004).

Md. Humayun Kabir Bulbul, Advocate—For Respon­dent No. 6.

Rajik-al-Jalil, Deputy Attorney-General with Sufia Ahmed, Assistant Attorney-General—For the Government­- Respondents.

Writ Petition No. 2711 & 2560 of 2004.

Judgment

Nozral Islam Chowdhury J.- These two writ peti­tions being Writ Petition No. 2711 of 2004 and Writ Petition No. 2560 of 2004 involve common ques­tion of law to be decided by this court, Therefore, we feel it proper to dispose of both the writ petitions by a single judgment.

2. In Writ Petition No. 2711 of 2004, Rule Nisi was issued calling upon the respondents to show cause as to why the office order under the sig­nature of respondent No.4 vide Memo No. 607(4) Nikha dated 12-5-2004 cancelling Nikah Registry licence of the petitioner Md. Mahbbubul Alam, issuing fresh licence to respondent No.5 in respect of Paikpara Union Parishad No.8 under police station Kalihati, District Tangail and office order vide Memo No.413/Bichar-7-2N-63/2002 dated 24­4-2004 under the signature of respondent No.2 can­celling the petitioner’s licence in respect of Paikpara Union Parishad No.8 appointing respondent No.5 in the same area should not be declared to have been made without lawful authority and to be of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

3. In Writ Petition No. 2560 of 2004 a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order as con­tained in Memo No.431(ll) Bichar -7/2N-68/03 dated 26-4-2004 passed by respondent No. 1 under the signature of respondent No.2 (Annexure-3) should not be declared to have been made without lawful authority and to be of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

4. In both the said Rules the learned Advo­cates appearing for the petitioners submitted, that the impugned orders were passed in the respective writ petitions in gross violation of section 11 of the Muslim Marriages and Divorces (Registration) Act, 1974 in that no notice was ever served upon them before cancellation of their licences. It is also sub­mitted by the learned Advocates for the petitioners that the impugned orders having been devoid of any substantial basis these are arbitrary, as such, illegal and liable to be set aside.

5. Ms. Sufia Ahmed, learned Assistant Attorney-General appearing on behalf of the respondent to oppose the rules, drew our attention to an unreported judgment delivered by the High Court Division in Writ Petition No. 2878 of 1998 wherefrom we find that the division bench of this Court while discharging the Rule obtained by Nikah Registrar held in the concluding part of the Judgment as under:

“Admittedly, petitioner was appointed temporarily as Nikah Registrar and, as such, he was not entitled to a notice to show cause” with the finding as aforesaid the Rule in the said Writ Petition was discharged.”

6. The learned Assistant Attorney-General has also placed before us the judgment of Civil Petition for Leave to Appeal No. 968 of 1999 brought against the said judgment dated 5-5-99 in Writ Petition No.2878 of 1998 and their Lordships in the Appellate Division having disposed of the leave petition by their judgment dated 17th March, 2002 dismissed the leave petition upholding the judgment of the High Court Division passed in Writ Petition No. 2876 of 1998 holding as under:

“Since the appointment of the petitioner as Nikah Registrar was on temporary basis no right accrued in favour of the petitioner to have legal notice before the cancellation of his licence.”

7. Having referred to the aforesaid two decisions, one from the High Court Division and another from the Apex Court, the learned Assistant Attorney-General submits that the instant two Rules issued in Writ Petition No. 2711 of 2004 and 2560 of 2004 are squarely covered by the aforesaid two judgments. Therefore, the Rules involved in the said writ petitions be discharged.

8. We have heard the learned Advocates from both the sides, perused the petitions and the materials placed before us including the aforesaid two judgments. One in Writ Petition No. 2878 of and another passed by the Appellate Division in Civil Petition for Leave to Appeal No.968 of wherefrom we find that the submissions made by the learned Assistant Attorney-General has got substance, although we have noticed that both the impugned orders were passed invoking section 11 of the Muslim Marriages and Divorces Registration Act, 1974.

In view of such a petition in the case, the Rules in Writ Petition No. 2711 of 2004 and Writ Petition No.2560 of 2004 are hereby discharged without any order as to costs.

Ed.

Source : 59 DLR (2007) 205

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