Mosharraf Hossain Vs. Moulana Md. Tofazzal Hossain and others, 2004

 

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

MM Ruhul Amin J

Md. Tafazzul Islam J

Mosharraf Hossain………………..Appellant.

Vs.

Moulana Md. Tofazzal Hossain and others…………………..Respondents.

Judgment

November 9, 2004.

Lawyers Involved:

Mahbubey Alam, Senior Advocate, instructed by ASM Khalequzzaman, Advocate-on-Record-For the Appellant

Asaduzzaman, Advocate, instructed by Zahirul Islam, Advocate-on-Record-For Respondent No. 1.

Not represented-Respondent Nos. 2-3.

Civil Appeal No. 5.1 of 2003.

(From the Judgment and Order dated 16th March, 2002 passed by the High Court Division in Writ Petition No. 3382 of 2000).

Judgment

Md. Tafazzul Islam J.- This appeal by leave, is preferred against the judgment and order dated 16.3.2002 passed by the High Court Division in Writ Petition No. 3382 of 2000 making the Rule absolute.

2. The respondent No. 1, filed the above writ petition challenging the Memo No. 1372 Bichar-7/2N-146/80 dated 6.6.2000 issued by the Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs, stating, inter alia, that he hails from No. 9 Goalerchar Union of Islampur Police Station, District Jamalpur and upon his application, Ministry of Law, Justice and Parliamentary Affairs on 2.11.1999 appointed him as Nikah Registrar for the said Goalerchar Union on temporary basis; four other persons namely Kh. Matiur Rahman, Md. Liakat Ali, Md. Shafiqul Islam and Md. Abdul Hannan were also appointed as Niskah Registrars of Charputimari Union, Palabandha Union, Gaibandha Union and Islampur Union of Islampur Police Station respectively at the same time on temporary basis; against the above appointments of the respondent No. 1, Md. Abdul Hannan and Md. Shafiqul Islam as Nikah Registrars on temporary basis the appel­lant filed Other Class Suit No. 47 of 1999 in the 1st Court of Subordinate Judge (Now Joint District Judge), Jamalpur praying for declara­tion that appointment of the aforesaid three per­sons as Nikah Registrar of three unions were void, illegal and ultra vires and the appellant also filed an application under order 39 Rule 1 of the Code of Civil Procedure and the above court on 30.11.1999 passed an order of status quo restraining the defendants not to issue license of Nikah Registrar till hearing of the injunction matter and as a result license was not issued to the respondent No. 1 and others; the respondent No. 1 and others filed written objec­tion and also filed a separate application stating that the aforesaid suit cannot be entertained by the Court and after hearing the learned Subordinate Judge (now Joint District Judge) by order dated 2.4.2000 allowed the above application and instructed the plaintiff appellant to file case in a proper court and vacated the order of status quo; thereafter on the basis of the approval of the Ministry of Law, Justice and Parliamentary Affairs, the District Registrar, Jamalpur appointed the respondent No. 1 as Nikah Registrar of No. 9 Goalerchar Union on 9.4.2000 and the respondent No. 1 started func­tioning as Nikah Registrar of Goalerchar Union but suddenly the Senior Assistant Secretary Ministry of Law, Justice and Parliamentary Affairs issued the Memo dated 6.6.2000 under section 4 of the Muslim Marriages and Divorce (Registration) Act, 1974 (Act) revoking the appointment of the respondent No. 1 as Nikah Registrar of Goalerchar Union and reinstating the appellant as Nikah Registrar of the said Union and consequently the District Registrar, Jamalpur issued the Memo dated 13.6.2000 granting license to the appellant to act as Nikah Registrar of Goalarchar Union on temporary basis. The High Court Division after hearing made the Rule absolute.

3. The learned counsel appearing for the appellant submits that the first part of section 4 of the Act provides for appoint and also granti­ng license to the Nakah Registrar and accordingly by Memo dated 6.6.2000 the appellant was reinstated in his previous post of temporary Nikah Registrar of No. 9 Goalirchar Union and in any view of the matter quoting of a wrong section in no way give a different meaning to the contents of the order itself which the High Court Division failed to consider; the Government having not yet granted license under Rule 5(4) of Muslim Marriage and Divorce Rules, 1975 (Rules) in favour of the respondent No. 1 till the order dated 6.6.200 was passed and the requirement of issuing of notice to show cause before cancellation of license being applicable only in case of Nikah Registrar who has been issued license under the aforesaid Rule 5(4), the High Court Division erred in holding that cancellation of license of the respondent No. 1 is not legal for want of notice of show cause before cancellation; the appellant having been appointed as a Nikah Registrar for 5 Unions in 1994 license was also granted but without canceling or revoking the above appointment/ grant of license the respon­dent No. 1 and others were appointed as Nikah Registrar in the above Unions and so by orders dated 6.6.2000 and 13.6.2000 the appointment of the appellant having been restored in respect of only Goalerchar Union from which the appellant hails the High Court Division erred in not treating the Memo dated 6.6.2000 as an order of restoration of the appointment of the appellant in one Union only under section 4 of the Act.

4. The learned counsel appearing for the respondent No. 1 submits that the respondent No. 1 was removed without any show cause notice and so the impugned Memos are illegal and accordingly there is no infirmity in the judgment of the High Court Division.

5. As it appears by Memo No. 780 Bichar-7/2N-7/94 dated 14.9.1994 under the signature of the Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs the appellant was appointed as Nikah Registrar for 5(five) Unions namely (1) Islampur, (2) Palabandha, (3) Golaerchar, (4) Gaybandha and (5) Char Putimari, under Police Station Islampur, District Jamalpur and sicne then the appellant had been performing his function as Nikah Registrar of the said Unions. However by Gazette Notification dated 1st January, 1998, Rule 10 of the Muslim Marriage and Divorces (Registration) Rules, 1975 was amended in 1998 limiting the area of a Nikah Registrar to not more then three unions or wards.

6. As it appears considering the above sit­uation the appellant by letter dated 6.8.1998 gave option to keep 3 Unions i.e. No.9 Goalerchar, No. 6 Islampur and No. 10 Gaibandha Unions but the government without canalling and/ or revoking the license granted to the appellant in the year 1994, by Memo dated 2.11.99 appointed the respondent No. 1 and Matiur Rahman as temporary Nikah Registrars of Goelerchar and Charpulimari Unions respec­tively and by Memo dated 3.11.99 appointed Likat Ali, Shafiqul Islam and Abdul Hannan as temporary Nikah Registrars of Palabandha, Gaibandha and Islampur Unions respectively. Then the appellant by application dated 7.2.2000 made representation to the Minister, Ministry of Law Justice and Parliamentary Affairs praying for reinstating him as Nikah Registrar of the 3 (three) Unions as per option given by him earlier and consider­ing the above representation, by Memo dated 6.6.2000 the appellant was re-instated as Nikah Registrar of only No. 9 Goalerchar Union and by Memo dated 13.6.2000 the District Registrar Jamalpur also granted license to him and since then the appellant has been performing his function as Nikah Registrar for the said Union but the High Court Division by the impugned order made the Rule absolute on the ground that the Memos dated 6.6.2000 and 13.6.2000, were passed quoting a wrong section in revoking the license of the writ petitioner and further no show cause notice was also issued upon the respondent No. 1 and accordingly the above Memos are illegal and without any lawful authority.

7. As it appears in terms of section 11 of the Act before cancellation of license issuance of notice of show cause is necessary but only in respect of the Nikah Registrar who has been appointed under Rule 5(4) of the above Rules 1975 i.e. who has been made permanent and the respondent No. 1 having not yet been made per­manent Nikah Registrar of Goalerchar Union, the High Court Division erred in holding that cancellation of license of the respondent No. 1 is not legal for want of notice of show cause before cancellation. Regarding the observation of the High Court Division that quoting of sec­tion 4 of the Act in the impugned orders is not proper it appears that by Memo dated 14.9.94 the appellant was appointed as Nikah Registrar of 5 Unions including No. 9 Goelerchar Union but without canceling or revoking the above appoint, the respondent No. 1 by Memo dated 2.11.99 was appointed as Nikah Registrar of No. 9 Goelerchar Union and so the above appointment of the respondent No. 1, on the face of it, is illegal, since appellant was denied of all the unions where he was working as Nikah Registrar and accordingly the appellant being entitled to keep at least the said No. 9 Goalerchar Union from which he hails, by Memo dated 6.6.2000 the appointment of the appellant as Nikah Registrar of No.9 Golerchar Union, i.e. the union from which he hails, was restored and the by Memo dated 13.6.2000 license was granted. Accordingly the High Court Division erred in not treating the impugned Memo dated 6.6.2000 as an order restoring the appointment of the appellant as Nikah Registrar in respect of his own union.

8. Accordingly the appeal is allowed. The judgment and order passed by the High Court Division dated 16.3.2000 in Writ Petition No. 3382 of 2000 is set aside. There is no order as to cost.

Ed.

Source : II ADC (2005) 20

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