Md. Bazlur Mohammad Vs. Bangladesh , 2008

Supreme Court

Appellate Division

(Civil)

Present:

M. M. Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Abdul Matin J

Md. Bazlur Mohammad …………………..Petitioner.

Vs.

Bangladesh rep­resented by the Secretary, Ministry of Law, Justice and parliamentary Affairs, Bangladesh Secretariat, Dhaka & others……Respondents

 

Judgment          

August 3, 2008.

Cases referred to-

Mvi. Mohammad Khurshed Alam vs. Secretary Ministry of Law, Justice and others, 50 DLR (AD) 82; Kazi Emanuddin Bhuiyan Vs. The Government of Bangladesh, 12 BLC (AD) 134; Raisuddin vs. Bangladesh and others, 51 DLR (AD) 152; Kazi Md. Amirul Islam vs. Secretary Ministry of Law, Justice and Parliamentary Affairs and others 16 BLD (AD) 110.

Lawyers Involved:

Mohammad Hossain, Advocate, instruct­ed by A. K. M. Shahidul Huq, Advocate-on-Record-For the Petitioner.

Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 474 of 2007.

(From the judgment and order dated 05.04.2006 passed by the High Court Division in Writ Petition No. 4487 of 2002).

Judgment

            Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 05.04.2006 of the High Court division passed in Writ Petition No. 4487 of 2002 discharging the Rule obtained challenging the virus of the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and also Rule 10 of the Muslim Marriages and Divorces (Registration) Rules, 1975 as amended by S.R.O. No. 273 Ain/2002 dated 02.10.2000 being violative of the fundamental rights as guaranteed by the constitution.

2. The petitioner filed the above writ peti­tion on the averments that he is the hold­er of licence of Nikah Registrar of Ward No.39 and 99 of Dhaka City Corporation which has been awarded by the respon­dent No.3 on the basis of the orders respectively dated 20.09.1998 and 30.12.1999 both passed by the respon­dent No.2 and that the appoints of Nikah Registrars are governed by the Muslim Marriages and Divorces (Registration) Act (Act LII of 1974), the Act, and by virtue of the powers conferred upon the Government by section 14 of the said Act the Government framed “The Muslim Marriages and Divorces (Registration) Rules 1975”, the Rules, and Rule 10 of the above Rules 1975 provided the areas for which a Nikah Registrar may be licensed and by Gazette Notification dated 1st December 1982, (Ordinance No. XLIX of 1982) section 4 of the Act was amended to include the second proviso and on 14th December 1982, Rule 10 of the Rules was amended and on 19.01.1993, the Rule 10 was further amended and finally by SRO being SRO No.289/97 dated 30.12.1997, Rule 10 was substituted and substituted Rule 10 provided that the area for which a Nikah Registrar may be licenses shall be (a) in the case of an area under a city corpora­tion or pourashava, not more than three wards and (b) In the case of other areas, not more than three unions and that the respondent No. 2, by the order dated 16.07.2002, upheld the appointment of Nikah Registrars of 10 Wards of Dhaka City Corporation which was abolished earlier by the government including the Word No. 99 of which the petitioner is holding license of Nikah Registrar and that by SRO No.12 Law/39 dated 19 January 1993, Rule 5A was inserted in the Rules 1975 with a view to make per­manent all those Nikah Registrars who having been appointed temporarily have completed two years on the date of com­mencement of the said new Rule 5 A and by SRO No. 10-Law/2001 dated 14th January, which was published in Bangladesh Gazette on 16 January, 2001, old Rule 5A was substituted by a new Rule 5A providing that notwithstanding anything contained in Rule 5 or in any other instrument having the force of law, any person acting as Nikah Registrar on temporary basis under sub-Rule 5(1) on the date of commencement of this substi­tuted rule shall deemed to have been licensed by the Government on regular basis and Subjected to the provision of rule to and other concerned provisions, he shall be issued a permanent license of Nikah Registrar by notification in the official Gazette and that after amending section 4 of the Act on 1st December 1982 the respondents have been curtail­ing the areas of the existing Nikha Registrars in discriminatory manners without assigning any reason.

3. The High Court Division, after hear­ing, discharged the Rule.

4. We have heard the learned counsel for the petitioner and perused the impugned judgment and order of the High Court Division and other connected papers.

5. As it appears that the High Court Division discharged the Rule holding that as held in the case of Kazi Emanuddin Bhuiyan Vs. The Government of Bangladesh, 12 BLC (AD) 134, and in the case of Raisuddin vs. Bangladesh and others, 51 DLR (AD) 152, the virus of section 4 of the above Act, 1974 and the Rules 3, 4 and 10 of Rules, 1975 were challenged and the Appellate Division, considering various   decisions pro­nounced by both the Divisions of the Supreme Court, answered the question in the negative an refused leave holding that the provisions of second proviso to sec­tion 4 of Act, 1974 as also Rule 3, 4 and 10 of Rules 1975 are not in any way violatives of the fundamental rights guar­anteed  under  the  constitution  of the People’s Republic of Bangladesh.

6. As it appears in 51 DLR (AD) 152 the Appellate Division held as follows:

“13. It is found from the amendment on 10.01.1993 that in sub-rule (2) of Rule 10 of Rules, 1995, a provision was added to the effect that a Nikah Registrar licensed shall continue in the office until he retires or his office otherwise falls vacant. This provi­sions was further amended on 30.12.1997 whereby sub-rule (2) of Rule 10 the earlier amendment was deleted. Thus whatever right a Nikah Registrar had under the previous Rule was done away with by subse­quent Rule 10 of 1997. The right given under previous rule 10 was taken away by subsequent amend­ment and, as such, the question of affecting the vested right of the peti­tioner does not arise. Simply a right given under the Rule was taken away by a subsequent amendment of the Rule, in that view of the matter the main contention of Mr. Abdul Razzak that the vested right of the petitioner has been affected has no leg to stand.”

7. Before parting with the case it may be stated that in the case of Mvi. Mohammad Khurshed Alam vs. Secretary Ministry of Law, Justice and others 50 DLR (AD) 82 and in the case of Kazi Md. Amirul Islam vs. Secretary Ministry of Law, Justice and Parliamentary Affairs and others 16 BLD (AD) 110, this Division had the occasion to deal with the second proviso to section 4 of the Act and Rule 10 of Rules, 1975 as amended on 19.01.1993, wherein we held that the Government had the power under the sec­ond proviso to section 4 of Act, 1974 to extend, curtail alter or otherwise alter the limits of any area. The petitioners’ license as a Nikah Registrar has not at all been revoked/ affected but under the second proviso of section 4 of the Act his area has been curtailed which the Government is authorized under the law to do conse­quently, the petition is dismissed.”

8. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infir­mity in the above decision so as to call for any interference.

The petition is dismissed.

Ed.

Source : VI ADC (2009) 799

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