Md. Saiful Islam Vs. Md. Abdur Rahim and other, 2004

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzal Islam J


Md. Saiful Islam……………………..Appellant

Vs.

Md. Abdur Rahim and other……..Respondents


Judgment

May 24, 2004.

Lawyers Involved:

Mainul Hosein, Senior Advocate, instructed by Ataur Rahman Khan, Advocate-on-Record-For the Appellant.

Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-Record-For the Respondents.

Civil Appeal No.146 of 2002.

(From the Judgment and order dated January 30.2001 passed by the High Court Division in Writ Petition No. 1468 of 2000)

Judgment

                 Md. Ruhul Amin J.- This appeal, by leave, is against the judgment and order dated January 30, 2001 of a Division Bench of the High Court Division in writ petition No.1468 of 2000 making the Rule absolute and there­upon declared illegal the Memo, dated March 2, 2000 of the Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh according approval as regard grant­ing of lisence of Nikah Registrar to the appel­lant on temporary basis in respect of 3 wards of Gafargaon Municipality. The High Court Division made the Rule absolute upon holding “that the area of the petitioner has been cur­tailed without any allegation against him or any show cause notice was issued upon him”.

2. Facts, in short, are that Respondent No.1 (writ petitioner) was initially appointed tempo­rary Nikah Registrar on August 31, 1976 for Union Nos.3-5 and 8 within Gafargaon Police Station and that he was permanently appointed as Nikah Registrar on October 20, 1981, that on March 8, 1998 Union No.5 was taken away from the Respondent No.1’s jurisdiction. Thereafter on February 20, 2000 Union No.8 was taken away from the jurisdiction of Respondent No. 1 and finally on February 22, 2000 Union No.3 was taken away from his jurisdiction. In July 1999 Gafargaon Municipality was established and the area of the said Municipality amongst others comprises ¼,(one forth) of No. 4 Saltia Union parishad wherein Respondent No. 1 was acting as the Marriage Registrar, that after the establishment of the Gafargaon Municipality the Government by the Memo, dated March 2, 2000 approved appointment of the appellant as temporary Nikah Registrar of 3 wards (including the area of No. 4) Saltia Union Parishad taking which Gafargaon Municipality was established) of the said Municipality.

3. The Respondent No.1 challenged legali­ty of the aforesaid Memo, of the Ministry of Law, Justice and Parliamentary Affairs con­tending that no notice was served upon him in taking away the area of the Saltia Union Parishad from his jurisdiction and that the area where in he was acting as Nikah Registrar was curtailed without giving any notice upon him and thus there has been violation of the princi­ple of natural justice.

4. The Rule was opposed by writ Respondent No.3 (appellant) by filing affidavit-in-opposition denying the material allegations and primarily contending that by the order impugned area of the Respondent No.1 was not curtailed nor any new Nikah Registrar has been appointed in respect of any part of the area where in the writ petitioner was acting as Nikah Registrar and as such the order impugned by which the Respondent No. 3 (appellant herein) has been appointed as Nikah Registrar for the 3 wards of Gafargaon Municipality is quite legal.

5. It was the contention of the Respondent No.1 before the High Court Division that under the Muslim Marriages and Divorces (Registration) Act, 1974 the Government is not authorized to take from the jurisdiction of the Nikah Registrar even the area that form part of newly established Municipality and if Government intents to take away such area from the jurisdiction of the Nikah Registrar, notice is to be served and he is to be heard, that as there was no allegation against the writ peti­tioner in the performance of the duties of Nikah Registrar, appointment of the Respondent No.3 as Nikah Registrar was illegal in respect of the area where in writ petitioner was acting as Nikah Registrar.

6. It was the contention of the appellant (respondent No. 3) that by the impugned Memo, he was appointed Nikah Registrar in respect of the 3 wards of Gafargaon Municipality and that there was no curtailment of the area where in writ petitioner   was acting as the Nikah Registrar since with the establishment of the Municipality taking ¼ area of the No. 4 Saltia Union Parishad, the said area ceased to be the area of No. 4 saltia Union Parishad.

7. The High Court Division made the Rule absolute on the observation as stated hereinbe­fore.

Leave was granted to consider the con­tentions that by the order impugned in the writ petition writ petitioner’s license to act as a Nikah Registrar remained unaffected since writ petitioner is still acting as the Nikah Registrar of No.4 Saltia Union parishad and that by the impugned Memo, the Respondent No.3 i.e. appellant has been appointed Nikah Registrar of 3 wards although part of one such ward was previously within No. 4 Saltia Union Parishad but with the establishment of Municipality the same became part of Municpality and that by the impugned Memo. Respondent No. 3 i.e. appellant has not been appointed Marriage Registrar of any ward or of any area of No. 4 Saltia Union Parishad and that by the impugned Memo. Respondent No. 3 (appellant) has been appointed Marriage Registrar of 3 wards of Gafargaon Municipality and not of any area of No. 4 Saltia Union Parishad.

8. The admitted position is that in July, 1999 Gafargaon Municipality was established and on the establishment there of ¼ area of No.4 Saltia Union Parishad was declared as the area of the Gafargaon Municipality. On the establishment of the Gafargaon Municipality there are which was previously part of No. 4 Saltia Union Parishad became the area of the Gafargaon Municipality or in other words ¼area of No. 4 Saltia Union parishad was made part of Gafargaon Municipality and there by said area ceased to be the area of No. 4 Saltia Union Parishad. The Respondent No. 1 at the time of creation of the Gafargaon Municipality was act­ing as the Nikah Registrar of No. 4 Saltia Union Parishad, but with the creation of the Gafargaon Municipality taking the part of the No.4 Saltia Union Parishad the Respondent No. 1 ceased to be the Nikah Registrar of that particular area of No. 4 Saltia Union Parishad. In the background of this territorial adjustment the appellant was appointed Nikah Registrar of 3 wards, includ­ing the area that was previously part of No.4 Saltia Union Parishad, of the Gafargaon Municipality. The appointment of the appellant as Nikah Registrar was in respect of new area which has no reference to or connection with the area where in the Respondent No. 1 is acting as Nikah Registrar. In the context of the afore­said facts and circumstances the contention of the Respondent No.1 that by the Memo, dated March 2, 2000 the Ministry of Law, Justice and Parliamentary Affairs by approving appoint­ment of the appellant as the Nikah Registrar of the 3 wards Gafargaon Municipality curtailed the are where in he was acting as Nikah Registrar and that while curtailing the said area no notice was given to him was not legally well founded in that by the said Memo, no area where in Respondent No.1 was acting as Nikah Registrar was curtailed, rather appellant has been appointed Nikah Registrar of the area of the newly established Municipality In that view of the matter we are of the view that the High Court Division was in error in declaring the Memo, dated March 2, 2000 of the Ministry of Law, Justice and Parliamentary Affairs illegal and without jurisdiction in that by the said Memo. No area of the Respondent No.1 where in he is acting as Nikah Registrar after the formation of the Gafargaon Municipality has been curtailed and consequently there was no requirement of law for serving notice to Respondent No. 1 prior to issuing the Memo, dated March, 2, 2000 according approval for the appointment of the appellant as Nikah Registrar in respect of the 3 wards of Gafargaon Municipality.

In the background of the discussions made hereinabove we find merit in the appeal.

Accordingly the appeal is allowed.

There is no order as to costs.

Ed.

Source : 1 ADC (2004) 190

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