PHP Float Glass Ind. Ltd. Vs. Comm. of Customs Chittagong and ors. (Md. Akram Hossain Chowdhury, J. )

HIGH COURT DIVISION

(Special Original Jurisdiction)

Mr. Syed Refat Ahmed, J. And Mr. Md. Akram Hossan Chowdhury, J. Judgment 30.05.2012

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PHP Float glass Industries Ltd. …Petitioner. Vs. Commissioner of Customs, Excise and VAT commissionerate, CGO Building No. 1, Agrabad, Chittagong and others. …Respondents.

Constitution of Bangladesh, 1972

Article 102(2) (a) (i) and (ii)

Value Added Tax Act (XXII of 1991)

Section 42 (1) (4)

Value Added Tax Rules, 1991

Rule 3 (7)

When the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007. The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

Value Added Tax Act (XXII of 1991)

Sections 42 (1) and 43 (1) (3)

When an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power.

Chittagong Cement Clinker Grinding Co. Ltd. Vs. Chairman, Board of Revenue and others, 60 DLR 287, Commissioner of Custom, Excise and VAT  Vs. Commissioner of Customs, Excise and VAT, 8 BLC 329 and M.A. Hai Md. Wajed Ali Miah and Md. Moslem Vs. Trading Corporation Bangladesh, 40 DLR (AD) 206 ref.

Mr. M. A. Hannan

–For the petitioner.

Ms. Israt Jahan, A.A.G

—For the Respondents

Judgment

Md. Akram Hossain Chowdhury, J:

On an application under article 102 of the constitution this rule nisi was issued calling upon the respondents to show cause as to why the impugned  order dated 18.3.2007 passed by the Respondent No. 3 demanding Tk. 87,14,891.68 as VAT alleging to be less paid during the period of 21.9.2006 to 28.02.2007 and adjusting the said amount by deduction in the current account register and stopping the supply of the goods till having positive balance in the said register (Annexure-G) should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order of orders passed as to this Court may seem fit and proper.

1. 2.          The facts in the writ petition in short are that the petitioner, a Private Limited Company represented by its Managing Director, established a factory for manufacturing Float Glass by using silica sand, the main raw material, as available in the country. The petitioner company being a VAT registered entity, as per the requirement of rule 3(1) of the Value Added Tax Rules-1991, (Rules) submitted a price declaration of its product vide Mushak-I for payment of VAT to the concerned Divisional Officer, respondent No.2, the Assistant Commissioner, Customs Excise and VAT Division, Feni, who by his order dated 13.08.2005 arbitrarily altered the petitioners declared value by purportedly enhancing the said price of float Glass at Tk. 17885/- to Tk. 23500/- per metric ton.
2. 3.          Feeling aggrieved by the said order of respondent No.2 the petitioner filed a review application on 28.08.2005, invoking the provision of Rule 3(7), before the respondent No. 1, Commissioner, Custom, Excise and VAT Commission-rate, Agrabad, Chittagong. On hearing the said review application the respondent No. 1 passed an order fixing the price of Float Glass at Tk. 21,000/- per Metric Ton and the same was communicated to the petitioner vide Nathi No. 4bÑ/H(12)320/j§pL/ ¢f HCQ¢f/NÔ¡p/03/8424-26 dated 03.9.2005. Accepting the said approved price the petitioner continued its business sincerely.
3. 4.          In the meantime the price of the raw material being reduced to a considerable amount for which the petitioner submitted a fresh price declaration on 21.9.2006 as per Musak-I and the respondent No. 2 again gave an arbitrary order of approval and altered the said price declaration purportedly enhancing the value of each item vide Nathi No. 4bÑ/H (12)24/j§pL/¢fHCQ¢f/­gÓ¡VNÔ¡p/06/3074 dated 08.10.2006.
4. 5.          Against such backdrop the petitioner filed a review application before the Respondent No. 1, Commissioner of Customs, Excise and VAT Commissionrate, Agrabad, Chittagong, on 22.10.2006 and submitted a written statement in support of his price declaration along with all relevant documents on 09.11.2006. The respondent No. 1 upon perusal of the same passed an order on 15.11.2006 under Rule 3(7) of the Rules, fixing the value of Transparent glass at the rate of Tk. 20,500/- and coloured glass at Tk. 25,000/- per Metric Ton and the said order was communicated to the petitioner vide Nathi No. 4bÑ/H(12)320/j§pL/ ¢fHCQ¢f/NÔ¡p /05/5629-31 dated 15.11.2006.
5. 6.          Being aggrieved by and dissatisfied with the said order dated 15.11.2006 the petitioner preferred an appeal on 03.12.2006 before the respondent No. 5, the Customs, Excise and VAT Appellate Tribunal, under section 42 of the VAT Act-1991 (Act). The said appeal was registered as Appeal No. CEVT/Case (VAT) 234/2006 which is pending for hearing.
6. 7.          It is alleged that during pendency of the said appeal all on a sudden on 18.03.2007, the respondent No. 3, Superintendent, Custom, Excise and VAT Sitakunda Circle, Chittagong, most illegally and arbitrarily passed the impugned order in the current register of the petitioner demanding Tk. 87, 14, 891.68 allegedly less paid VAT during the period of 21.9.2006 to 28.02.2007 and adjusted the same by deducting in the current account register and stopped the supply of goods till having positive balance in the said register. Hence the petitioner, finding no other alternative and efficacious remedy against the aforesaid mala fide action of the respondent No.3, was compelled to file this writ petition and obtained the instant rule.
7. 8.          No one for the respondents came forward to oppose the rule by filing any affidavit in opposition.
8. 9.          Mr. M. A. Hannan, the learned Advocate appearing on behalf of the petitioner submits that the respondent No. 3 most arbitrarily and illegally issued the impugned order without serving any notice under Section 55(1) of the Act leaving the petitioner without any opportunity to defend his case. Therefore, violating the principle of natural justice the respondent No. 3 issued the impugned order which is to be declared without lawful authority. Mr. Hannan, further submits that the appeal under section 42(1) of the Act was filed by the petitioner against the enhanced price approval order of commissioner, from which the present issue of VAT evasion and demand arose. The said appeal is still pending for disposal before the respondent No. 5, though there is specific provision of nine months time limit for disposal the appeal under Section-42(4) of the Act. But during pendency of the said appeal the impugned order of demand and adjustment thereto in the current account register of the petitioner was made purportedly with a mala fide intention. The petitioner informed the respondent No. 3 that the order was passed over an issue as in part and parcel to the said appeal and also constitutes a Sub judice  matter. That notwithstanding the respondent No. 3 without considering such aspect and not applying its judicial mind issued the impugned order which the petitioner submits is now liable to be set aside and to be declared illegal and without any lawful authority. The learned Advocate for the petitioner in support of his submissions cited the decisions in Chittagong Cement Clinker Grinding Co. Ltd. –Vs- Chairman National Board of Revenue and others, reported in 60DLR-287, and Commissioner of Customs, Excise and VAT –Vs- Customs Excise and VAT Appellate Tribunal and others, reported in 8 BLC(2003)-329.
9. 10.      Referring to the Chittagong Cement Clinker case, reported in 60 DLR, Mr. Hannan submits that in the said Judgment there lordships observation was that “When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer”. Accordingly, Mr. Hannan argues that the respondent No.1, the Commissioner, without considering such legal prescription, the rationale of the law and the base value of similar products as were in particular before him by glaring failure of proper adjudication of law passed the order apparently beyond the stipulated period of 15 days as provided by rule-3(7) under the  Rules. Mr. Hannan argues, therefore, that the adjudication order itself is illegal and void.
10. 11.      The learned Advocate for the petitioner in course of hearing drew our attention to the fact that the appeal is still pending before the Tribunal for disposal. In fact, there is a provision for disposal of appeal stipulating the period of 9 months, failing which the appeal is deemed to be allowed as per provision of Section 42(4) of the Act. Though no steps have yet been taken for a due disposal of the appeal, in the meantime the stipulated period has long since expired. In such circumstances he submits, that given there is no order of this Court staying the appeal proceedings, therefore, the appeal pending before the Tribunal is deemed to have been allowed due to expiration of 9 months stipulated period in disposal of the appeal as per provision of Section 42(4) of the Act.
11. 12.      At this stage, on our query, the learned Advocate for the petitioner by filing a supplementary affidavit brought into our notice that since the instant writ petition is pending, the tribunal is awaiting further order(s) of this Court before proceeding any further with the appeal hearing.
12. 13.      In respect of the impugned order passed by the respondent No.3, demanding the less paid amount of VAT and deduction of the amount in the current register even, when an appeal is pending on the same issue, Mr. Hannan relied upon the case of Commissioner of Customs -Vs- Appellate Tribunal reported in 8BLC(2003),329 wherein it was noted in a similar situation that when an appeal is filed under Section 42 of the Act the order appealed against is deemed automatically to be stayed. This is because purely as an administrative measure that order is automatically stayed by the department concerned and no steps are, therefore, taken to implement the same during the pendency of the appeal before the appellate forum. This, therefore, necessarily obviates the need for this Court to pass an     ad interim order staying the operation of the impugned order. So far so good. Since the appeal is pending on a demand of VAT assessed upon relying on an order of the respondent No.1, Commissioner, which is under consideration as the subject matter of the appeal, the respondent No. 3 being a subordinate authority could not pass the impugned order in a sub judice matter. In such circumstances, Mr. Hannan submits that the order passed by the respondent No. 3 is to be declared without lawful authority and is of no legal effect.
13. 14.      Ms. Israt Jahan, the learned Assistant Attorney General (A.A.G) though conceding the facts of the case as assured by the petitioner, raises the question whether the petitioner can invoke the writ jurisdiction when an alternative remedy lies against the same under Sub Rule 7 of Rule 3 of the Rules. In reply Mr. Hannan has referred to a judgment reported in 40 DLR(AD)-206 in the case of M.A. Hai, Md. Wazed Ali Miah & Md. Moslem –Vs- Trading Corporation of Bangladesh. Mr. Hannan submits by reference to that judgment that where an interpretation of law or a question of law is involved, such a situation requires for a decision by way of invoking writ jurisdiction. This Court in wholly subscribing to that view reflected in the above decision, finds that the instant writ petition is very much maintainable.
14. 15.      Heard the learned Advocates for both side at length and perused the writ petition along with the Annexures. The document in Annexure-D series to the writ petition are the price declaration along with Musak-1 Form filed under rule 3, sub rule 2 of the Rules explaining particularly that the price of the manufacturing materials being reduced and the price declaration of the similar items of M/s. Nasir Glass Industries being accepted by the VAT authority at a lower rate, the petitioner’s price declaration is to be accepted. Upon receipt of the petitioner’s said price declaration, the respondent No. 2 vide its order (Annexure-D1) dated 08.10.2006 re-fixed the price of the petitioner’s Float Glass and Coloured Glass at a higher rate as compared to M/s. Nasir Glass Industries.
15. 16.      Feeling aggrieved by the said order of respondent No.2 dated 08.10.2006 the petitioner filed a review petition vide annexure-E before the respondent No.1, Commissioner of Customs, Excise and VAT Commissionrate, for a reconsideration of the matter. The review application was filed on 22.10.2006 and the respondent No. 1 by its order dated 15.11.2006 re-fixed the price of the base value of Transparent Float Glass at the rate of Tk. 20,500/- and coloured Glass at TK. 25000/- per Metric ton. The said order was passed under sub Rule 7 of Rule 3 of the Rules. It is noted that the proviso of sub rule 7 of Rule-3 provides that the Commissioner, upon receiving the application, fails to make a decision within 15 days the application shall be deemed to have been allowed. That order passed by the respondent No.1, seems to have been made beyond such stipulated time.
16. 17.      Being aggrieved by and dissatisfied with the said order of the respondent No.1 the petitioner preferred an appeal, under section 42 (i)(Kha) of the Act, before the Customs, Excise and VAT Appellate Tribunal, Dhaka, who upon receipt of the same registered it as Appeal No. CEVT/ Case (VAT) 234/ 2006. The said appeal was filed on 03.12.2006 and admittedly the appeal is still pending for disposal. But all on a sudden on 18.3.2007 the respondent No. 3, Superintendent, Customs, Excise and VAT, Sitakunda Circle, Chittagong, issued the impugned order (annexure-G) on 18.03.2007 thus:

18.3.2007 fË¢aù¡e La«Ñfr 21.9.2006 Cw a¡¢l­M a¡­cl Evf¡¢ca feÉ üµR J  l¢Pe ®gÓ¡V NÔ¡p p£V Hl j§mÉ ®O¡oe¡ c¡¢Mm L­lez pqL¡l£  L¢jne¡l, L¡øjp H„¡CS  J iÉ¡V, ®ge£ ¢hi¡N, ®ge£ Hl fœ  e¢b ew- 4bÑ/H(12)j§pL/¢fHCQ¢f ®gÓ¡V NÔ¡p/06/ 3074 a¡w 08/10/2006 Hl j¡dÉ­j Ae¤­j¡¢ca j§­mÉ fË¢aù¡e La«Ñfr p¿¹ø e¡ q­u L¢jne¡l L¡øjpÚ H„¡CS J iÉ¡V Q–NË¡­jl Hl hl¡h­l B¢fm B­hce c¡­ul Ll¡u L¢jne¡l j­q¡cu a¡l  B­cn fªù¡´Me e¢b ew- 4bÑ/H(12) 320 j§pL/¢fHCQ¢f ®gÓ¡V NÔ¡p/05/5629-31 a¡w 15/11/2006 Hl j¡dÉ­j fË¢a ®jx Vx üµR NÔ¡p Hl j§mÉ =20,500/- (¢hn q¡S¡l f¡yQna) V¡L¡ J fË¢a ®jx Vx l¢‰e NÔ¡­pl j§mÉ 25,000/-(fy¢Qn q¡S¡l) V¡L¡ ¢edÑ¡lZ L­l ®cez ¢L¿º a¡l¡ Ae¤­j¡¢ca j§mÉ  A­fr¡ Lj j§­mÉ feÉ plhl¡q Ll¡u 28.02.2007Cw a¡¢lM fkÑ¿¹ pj­u fË¢aù¡e La«Ñfr ®j¡V =87,14,891.68 V¡L¡ j§pL Lj f¢l­n¡d Ll¡u EJ²  V¡L¡ fË­cu Lm¡­j H¢¾VÊ ¢c­u pjeÄu Ll¡ q­m¡ Hhw L¢jn¡l j­q¡c­ul Ae¤­j¡¢ca j§­mÉ feÉ plhl¡q Ll¡l Ae¤­l¡d Ll¡ q­m¡z EJ² V¡L¡ pjeÄ­ul  f¢l­fË¢r­a Qm¢a ¢qp¡­h GZ¡aÄL ¢Øq¢a qJu¡u fk¡Ñç V¡L¡ ®VÊS¡l£ Q¡m¡­el j¡d¡­j Sj¡ ¢c­u feÉ plhl¡­ql Ae¤­l¡d Ll¡ q­m¡z ü¡rl AØfø Hj Bl e¡Cj p¤f¡¢le­Ve­X¾V L¡øjpÚ H„¡CS J iÉ¡V p£a¡L¤ä p¡­LÑm, Q–NË¡j p¡­LÑm, Q–NË¡jz

The aforesaid order of respondent No.3, was passed in apparent disregard of the fact of the appeal already filed.

1. 18.      In view of the above facts, since the appeal is pending before the Appellate Tribunal and the proceedings of the appeal was not challenged the said proceedings of appeal has not been stayed by this writ petition. In fact, the order passed by the respondent No.3 was impugned in this writ petition. Now it is to be decided whether the order as impugned was passed lawfully or not.
2. 19.      Notably, here in deciding the instant case firstly we may examine the decision referred by the learned Advocate for the petitioner, the case of “Chittagong Cement Clinker =VS= NBR” reported in 60 DLR-287, the ratio in which was that– “Sub-section(2) of Section-5 entitles a producer or manufacturer to sell its goods at a price/consideration which he declares and neither the National Board of Revenue nor the Government is empowered any provision of the vat Act in any way to fix any flat or minimum value for any goods.” Furthermore, as already noted earlier, in deciding the case their Lordships also aptly held therefore-      

“When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer”

1. 20.      Relying on the above Judicial view Mr. Hannan’s submission is that as per requirement of the law the process for approval of declaration of base value upon a consideration of the detailed breakdown of cost provided by the petitioner in Musak-1 Form, as in the present instance, obviates the necessity of the respondents to revisit the same, let alone reject such value declaration, that too, without considering the petitioner’s objections at the time of re-fixing such value.
2. 21.      The same view also been reiterated by this Court in a judgment passed in writ petition No. 10540 of 2006, the case of “Aman Cement Mills Limited –Vs- Customs Excise and VAT Appellate Tribunal, Dhaka and others”. In the above decisions it is mostly decided that the manufacturer is entitled at his consideration to fix a base value and the authority concerned has to approve the said price without affecting the interest of the manufacturer.
3. 22.      In the instant case we could not overlook whether the respondent No. 1 has considered this aspect in deciding the review application. The order of the respondent No. 1 has been challenged by filing an appeal before the Tribunal, which is still pending for disposal. It is incumbent upon the Tribunal to conclusively decide the matter upon a due and fair determination of the issues raised in appeal upon the petitioner being heard. During pendency of the appeal the respondent No. 3, Superintendent, Customs, Excise & Vat, Sitakunda Circle, Chittagong, overwhelmingly going beyond its jurisdiction passed the impugned order on a sub judice matter, demanding the amount as less paid VAT and deducted the same in his own way to the current account register of the petitioner and stopped the supply of the petitioner’s goods till having positive balance in the said register. The legality of the said order in these facts is found to be untenable by this Court. This Court has had regard to the case of Commissioner of Customs, Excise and VAT –Vs- Customs, Excise and VAT Appellate Tribunal and others, reported in 8BLC-329, where in a similar situation their Lordships in deciding on a dispute whether the Tribunal can pass an        ad interim order of stay in an appeal filed before the Tribunal and awaiting for disposal requested Mr. Hasan Ariff, the then Attorney General and Mr. Mahmudul Islam, the former Attorney General as amici curiae to address the matter. Mr. Hasan Ariff in his submission categorically stated “on perusal of the provision as contained in section 42(2) of the VAT Act it is clear and obvious that as soon as an appeal is filed the impugned order is automatically stayed.”
4. 23.      Mr. Mahmudul Islam in his submission pointed out that- “as an administrative measure department concerned automa-tically stays the order appealed against and does not take any step to implement the same during the pendency of the appeal before Appellate forum and therefore, there is no necessity of passing an ad-interim order for staying the operation of the impugned order”
5. 24.      In the said case their Lordships observed accordingly “In interpreting Sub-section(2) of Section 42 all the learned Advocates agreed that on filing of the appeal with the necessary deposit of a portion of the disputed amount, the impugned order is automatically stayed and there is no scope for the VAT officials to press for the payment of the disputed amount during the pendency of the appeal.”

        And at the end of the day their Lordships held-

“Inasmuch as the appeal is admitted, the impugned order is automatically stayed.”

Upon a perusal of the above decisions of this Court, it is now held that when the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007 (Annexure-G). The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

1. 25.      Moreover section 43 of the Act empowers the National Board of Revenue to call for record and to examine the same and arrive at its decision on a given matter. For proper appreciation of law, reproduced herein below is the said section 43:

“43 (1) ­­h¡XÑ üaxfÐhªš qCu¡ HC BC­­el Ad£e ®L¡e L¡kÑd¡l¡l e¢bfœ Eq¡­­a ®h¡­­XÑl AdxÙ¹e ®L¡e j§mÉ pw­k¡Se LjÑLaÑ¡ LaѪL fÐcš B­­cn h¡ ¢pÜ¡­­¿¹l °hda¡ h¡ eÉ¡kÉa¡ pÇf­LÑ p¿ºø qJu¡l E­Ÿ­nÉ amh J fl£r¡ L¢l­a f¡¢l­h Hhw Eq¡ avpÇf­LÑ ®kCl©f ¢h­hQe¡ L­l ®pCl©f B­cnc¡e L¢l­a f¡¢l­hzÓ

Significantly, however, Sub-section 3 of said Section 43 places limits on the Board’s power and prohibits the initiation of any action as otherwise sanctioned under sub-section above when an appeal under section 42(1) of the Act is pending and until disposal of the said appeal. Sub-section 3 of Section 43 runs as follows-

“43 (3) ­k ®r­œ d¡l¡ 42 Hl Efd¡l¡-(1) Hl Ad£e ®L¡e  A¡f£m ¢h­hQe¡d£e l¢qu¡­R ®p ®r­œ Eš² Bf£m ¢eÖf¢š e¡ qJu¡ fkÑ¿¹ Efd¡l¡ (1) Hl Ad£e ®L¡e L¡kÑÉd¡l¡ öl¦ Ll¡ k¡C­he¡z”

1. 26.      In view of the above provisions of law, when an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power. This Court’s reading of the act finds no legal basis for such assumption of authority by the respondent No. 3. In such view of the fact, we have no hesitation to hold that the respondent No.3 went beyond his jurisdiction and passed the impugned order which has no legal force and is to be declared to be without any lawful authority and as having no legal effect.
2. 27.      Since the appeal is pending before the Customs, Excise & VAT Appellate Tribunal and could not proceed due to the filing of this writ petition as is evident from a statements to that effect accorded in the petitioner’s Supplementary Affidavit, even though there is no order of stay in respect of the appeal pending before the Tribunal, we are now inclined to direct the respondent No.5, Appellate Tribunal to dispose of the appeal within a certain period, keeping in mind the observations as stated above.
3. 28.     
   

   Md. Yusuf Shaikh and others  Vs. Shahabuddin Shaikh and others, (Shahidul Islam, J. )

   On the issue of maintainability of this writ petition as raised by the Learned Assistant Attorney General, in light of the questions of the law raised under this Rule and decided upon by this Court as above, this Court subscribes to the principle reflected in the decision reported in 40 DLR(AD)-206, thus “If the writ Jurisdiction is sought to be involved raising purely a question of law or interpretation of statute, availability of an alternative remedy will not stand in the way.”

In view of the above observation it is decided that the instant writ petition is maintainable.

1. 29.      In the result, the rule is made absolute without, however, any order as to costs. The impugned order dated 18.03.2007 passed by the respondent No.3 demanding Tk. Tk. 87,14,891.86 as alleging less paid VAT during the period of 21.9.2006 to 28.02.2007, adjusting the said amount by deduction in the current account register of the petitioner and stopping the supply of the goods till having positive balance in the said register (Annexure-G) is declared to be without lawful authority and of no legal effect. The respondent Nos. 1-4 are directed to restore the petitioner’s current account register and refund the said amount of Tk. 87,14,891.86  to the petitioners current register as has been deducted by the impugned order dated 18.3.2007 (Annexure-G), and the Respondent No.5, Appellate Tribunal is also directed to finally dispose of the appeal in accordance with law, keeping in mind the observations made herein above, positively within 60 (Sixty) days from the date of receipt of a certified copy of this judgment and order.

        Communicate this judgment and order at once.

Ed.

HIGH COURT DIVISION

(Civil Revisional Jurisdiction)

Mr. Shahidul Islam, J. Judgment 13.02.2012

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Md. Yusuf Shaikh and others …Petitioners Vs. Shahabuddin Shaikh and others …Opposite Parties.

Specific Relief Act (I of 1877)

Section 42

It appears that the plaintiff without having any legal status or character or any right in the suit land sought for declaration of title therein. Although the plaintiff’s deed is registered earlier in the point of time but he purchased 77 decimals of land excluding the suit land. The plaintiff got no locus standi to file the suit.                                             …(19)

Mr. Abul Kalam Mainuddin with

Mr. Munshi Abdul Hamid

— For the Petitioners.

Mr. Syed Mokaddas Ali

–For the Opposite Parties

Judgment

Mr. Justice Shahidul Islam

        The Rule was issued calling upon the opposite party Nos. 1 to 14 to show cause as to why the judgment and decree dated 30.04.1985 passed by the learned District Judge, Khulna in Title Appeal No. 195 of 1976 allowing the appeal, reversing the judgment and decree dated 31.08.1976 passed by the learned Munsif,  1^st Court Khulna in Title Suit No. 91 of 1973 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.