PRESIDENT ORDER NO. 8 OF 1972 and PRESIDENT ORDER NO.67 OF 1972

Interpretation of—Precisely President’s
Order No.8 of 1972 was drafted in such language so as to cover the acts already
committed and by express words it was given retrospective effect. Whereas
President’s Order No.67 of 1972 does not contain any such express words. Rather
the statute has been drafted in clear language to cover those persons who are
still ‘exhibiting” faith in Pakistan ideology or “manifesting” ardour, or zeal
“amounting” to collaboration etc.

It
is only a mental makeup of certain persons whose conduct “exhibiting”,
“manifesting”, “amounting to collaboration’ etc. which have been the subject
matter of the enactment that they are liable to be thrown out. It is not the
activity which was performed in the past or immediate past which had been made
offence under another special statute, e.g., President’s Order No.8 of 1972. On
the other hand by making President’s Order No.8 of 1972 retrospective a person
who has aided, abetted, participated, issued statement were brought within its
ambit but not the persons whose conduct or activity in the discharge of their
duties “manifesting” exhibiting” etc. are within it. Later class of people does
come within President’s Order No.67 of 1972 if such mental make up is still
continuing.”

Per B.H. Chowdhury, J (R. Islam, J
concurring)

Registrar,
University of Dacca Vs. Dr. Sajjad Hossain, 1BLD (AD) 348

PRESIDENT’S ORDER NO. 90 of 1972

Article —2

Non-obstante clause — Import of such
clause appearing in a statute — It is well — established that when a
non-obstante clause is used it has first to be ascertained what the enacting
part of the section provides — Nonobstante clause is to be understood as
operating to set aside as no longer valid anything contained in the relevant existing
law which is inconsistent with the new enactment.

Chowdhury
Tanbir Ahmed Siddiky Vs. Bangladesh and others, 8BLD (HCD) 485

Ref:
33 DLR(AD)13.

[The
above judgment has been reversed by the Appellate Division, reported in 17 BLD(AD)
13 1.]

PRESIDENT ORDER NO.12 OF 1972 (P.0.12 OF 1972)

Article—3

Arbitrator—Whether he is excluded from
the definition of “Court”—An arbitrator does not adjudicate and he does not sit
as a Tribunal—He is not bound by the technicalities of the Evidence Act—His
function is like that of conciliator—He is neither a Court nor a Tribunal and
his award is not a judgment, decree or order of any Court or Tribunal within
the mischief of Article 3 of President’s Order No. 12 of 1972.

Begum
Khadija Akhtar Banu and Another Vs. A.K.M. Amanullah and another 4BLD (AD) 80.

PRESIDENT’S ORDER NO.64 OF 1972

Article — 4(1)

Right to fresh hearing — Whether
Government of Bangladesh being added as a party in a suit pending prior to
promulgation of P.0. 69/72 has such a right — Whatever hearing took place
before the liberation of Bangladesh was between the petitioner and the Province
of East Pakistan — The Government of Bangladesh substituted itself as a party
to the suit by a fiction of law — That does not mean that the Government of
Bangladesh became a successor of the province of East Pakistan — The Government
of Bangladesh acquired the right to have the suit heard de novo.

Chowdhury
Tanbir Ahmed Siddiky Vs. Bangladesh and others, 8BLD (HCD)485

Ref:
33 DLR(AD)13.

[The
above judgment has been reversed by the Appellante Division, reported in I7BLD
(AD)131]

PRESIDENTS ORDER NO.94 OF 1972

Article —11A

Delegation of authority—When an express
provision for delegation of power is not exercised in accordance with law, then
it cannot be said that it was deemed to have been. done impliedly, because, the
delegating authority did not object to it. The Board’s ratification of the
order after it was struck down by the High Court Division will have no effect.
–

Bangladesh
Freedom Fighters Welfare Trust and another Vs. Md. Momtazul Hossam, 12BLD (AD)
199

PRESIDENT’S ORDER NO. 129 OF 1972

Proceedings under ordinary law and special
law—The proceedings under a special law are different in nature and are not
to be tagged with proceedings under any other ordinary law. It does not matter
which one was instituted first. The special proceedings under the special law
(P.O. 1.29 of 1972) shall proceed independently under the provisions of that
special law, no matter whether there is any other pending proceeding under any
other ordinary law instituted earlier or later than the special proceeding.

Ahmed
Silk Mills Ltd. Vs. Bangladesh Shilpa Bank, 11BLD (HCD) 398

PRESIDENT ORDER NO. 135 OF 1972

Article — 2

Diluvion and extinguishment of right —
When diluvion had taken place before commencement of P.O… 135 of 1972 and the
lands reappeared before the commencement of the Order, the right, title and
interest of the tenant got extinguished with the. diluvion — The lands having
re-appeared before the commencement of the Order it vested absolutely in the
Government free from all encumbrances to be at its disposal until the tenant’s
right to re-possession was finally recognised by a competent authority — State
Acquisition and Tenancy Act, 1950 (XXVIII. of 1951), S.86.

Syed
Nizamuddin Mohsin being dead his heirs Vs. People’s Republic of Bangladesh and
others, 9BLD (AD) 116

Ref:
31 DLR (AD) 195.

President
Order No.7 Of 1973

Article—27

An
application to the District Judge under Article 27 of P.O. No. 7 of 1973 does
not come in the category of a ‘suit’. It is just a special provision made for
realisation of loans by the Corporation’. An application under Article 27 of
P.O. No 7 of 1973 cannot, there-. fore, be equated with a suit as none of a
suit such as a regular plaint, court fees, limitation, written statement,
decree etc. is attracted to such an application.

The
financial institution may get the relief or reliefs in a summary way which is
not available in a suit. It cannot, therefore, but be said that Article 27 is a
special provision providing special procedure for realisation of loan which comes
squarely within the provision to Section 5(1) of the Artha Rin Adalat Act 1990.
The action contemplated under Article 27 is thus outside the concept of gvgjv
or ‘suit’ as mentioned in Section 5(1) of the Artha Rin Adalat Act.

The
word gvgjv is a generic term and there is no scope to attribute a wide meaning
to that word except that of a ‘suit’ as used in section 5(1) of the Artha Rin
Adalat Act, 1990.

Bangladesh
House Building Finance Corporation Vs. Jahan Ara Akhter and another 16 BLD (AD) 231.

PRESIDENT’S
ORDER NO 16 OF 1972

The
pre-requisites of the enlistment of the buildings in the official Gazette are
that these buildings must of necessity be abandoned properties within the
meaning of President’s Order No.16 1972 and the possessions thereof have been
taken by the Government before such enlistment, that no such building can be
enlisted in the official Gazette as an abandoned property relating to which any
decree or order has been passed by any Court having competent jurisdiction
declaring the property as not abandoned property or not to have vested in the
Government or declaring the Government possession illegal or directing the
Government to restore possession to owner prior to the date of publication in
the official Gazette.

The
onus is firmly rested on the Government to prove that the property in question
is an abandoned property and is taken over by the government and government
continued in possession prior to the enlistment. The Government has to prove
that the property is an abandoned property within the meaning of President’s
Order No. 16 of 1972; the Sub- Divisional Officer or the Deputy Commissioner
had applied his mind as to the nature and character of the property and found
the same to have been an abandoned property upon verification and enlisted the
same as an abandoned property.

The
Court of Settlement is not, an appellate Court to sit over the judgment and
decree of the civil Court. The Ordinance No.54 of 1985 has vested the Court of
Settlement with power to examine if the property is an abandoned property or
not and upon such examination, the relief asked for it could be granted in
favour of the claimant.

The
Court of Settlement has no power to set aside or nullify any judgment and
decree of a civil Court having competent jurisdiction.

Mrs. Akhtar
Jahan Begum Vs. The Court of Settlement, Bangladesh Abandoned Buildings and
ors., 13 BLD (HCD) 177.

Article—2

Abandoned
Buildings (Supplementary Provisions) Ordinance, 1985 (LIV of 1985)

Article—7(3)

Notice of
surrender

If
a property comes within the definition of ‘abandoned properties’ as
contemplated in Article 2 of P.O. No. 16 of 1972, it automatically vests in the
Government in terms of Article 4 thereof on the commencement of the said Order.
But an abandoned property in possession of any person can only be included in
the ‘Kha list’ of abandoned properties in respect of which notice for surrender
has been issued, upon the occupiers. This notice must be the notice as required
by Article 7(3) of Ordinance No LIV of 1985 and as prescribed by Rule 3(8) of
the Bangladesh Abandoned Property (Taking Over Possession) Rules, 1972. The
enlisting of any property in the ‘Kha list’ and publication thereof in the
official gazette in respect of which no notice under Article 7(3) of P.O. 16 of
1972 has been issued will be clearly illegal. Thus once a property is enlisted
as an abandoned property by observing the legal formalities it becomes
conclusive evidence as regards the character of the property in question.

Mrs. Lalima
Begum and another Vs The Chairman, Court of Settlement, 1st Court, Dhaka and
another, 17 BLD (HCD) 271.

Article—10(1)

The
Government has the right to cancel allotment of an abandoned property under
Article 10(1) of P.O. 16 of 72 but before that is done it must be found that
the allottee has violated any of the terms and conditions of the lease. The
Government has also the right to affix standard rent for the suit premises.

The
Secretary, Ministry of Public Works, Government of the People’s Republic of
Bangladesh Vs. Md. Sharifullah and others, 18 BLD (HCD) 93.

Ref:
1 BLD(AD)346—Cited.

Article—15

Order
passed by the prescribed authority under Article 15 of the President’s Order
No. 16 of 1972 is a final order unless revised under Article 16 and the
prescribed authority, when allowing an application under Article 15 is required
to forward the records for releasing the property from the list of abandoned
property and it is not contemplated under the statue that prescribed authority
will seek instruction or opinion from any one or will send- the records for
passing the order of release by any other.

Feroz Ahmed
Vs. Bangladesh, represented 13 BLD (HCD) 160.

Ref:
Rana Awan (Mrs:) Vs. Bangladesh, 43 DLR 139—Cited.

PRESIDENT
ORDER NO. 27 OF 1972

A
rticle—23(4)

Sub-Article
4 of Article 23 has been intended to operate retrospectively. No suit is
maintainable against any Scheduled Industrial Enterprise after 5.2.1982. But
there being other defendants in the suit besides the Scheduled Industrial
Enterprise against whom reliefs have been claimed, it is not possible to hold
that the suit as whole could not be commenced or proceeded with in view of
Article 23(4) of P.O. No. 27 of 1972.

The Official
Liqui4ator, The Dhakeswari Cotton Mills. Ltd. Vs. The Dhakaeswari Cotton Mills
Ltd. 16 BLD (AD) 295.

Ref:
Dawsons Bank Ltd. Vs. Nippon Minkwa Kabushiki Kaisha, The Calcutta Weekly Notes
Vol. XXXIX, (1934 — 350 P. 647; Muhammad Yusuf Vs. The Himalaya Bank Ltd;
18A-198 (F.B.) (The Indian Decisions, New Series, Allahabad Vol. VIII) — Cited.

PRESIDENT
ORDER NO.69 OF 1972 AND PRESIDENT ORDER NO.90 OF 1972

From
a combined reading of the provision of the two Orders it is clear that P.O. 69
of 1972 envisages abatement of all kinds of suits or other legal proceedings
against the Government of Bangladesh whether or not related to acquisition
under the State Acquisition and Tenancy Act, 1950 when the Government opts not
to be a party thereto while P.O. 90 of 1972 envisages abatement only of suits
and other legal proceedings in which the legality or validity of the State
Acquisition and Tenancy Act, 1950 or any other law making amendment thereto or
for acquisition of any property made under any provision thereof is called in
question. P.O. 69 of 1972 may be termed as the ‘genus’ of which P.O. 90 of 1972
is the ‘species’. Both the Orders aim at abatement of a suit and there is no
inconsistency or mutual exclusiveness between the two Orders. As a logical
sequel, the provisions of P.O. 69 of 1972 cannot be said to have- been
abrogated because of the non obstante clause added to P.O. 90 of 1972. Partial
abatement of a suit does not appear to have been contemplated under P.O. 90 of
1972.

Bangladesh
represented by the Secretary Ministry of L.A. and L.R Vs Chowdhary Tanbir Ahmed
Siddiky, 1 7BLD (AD) 131.

PRESIDENT’S
ORDER NO. 149 OF 1972

Section—2

It
provides that who or whose father or grand-father was born in the territory now
comprising Bangladesh and who was a permanent resident of such territories on
the 25^th of March, 1971 and continues to be so resident, shall be
deemed to be a citizen of Bangladesh by birth. It being found that the
Petitioner was permanently residing in Bangladesh prior to the liberation of
the country, conclusively proves that he is a citizen of Bangladesh.

Ganga
Narayan Roy Vs. Secretary, Ministry of Home Affairs and others, 14 BLD (HCD) 215.

Ref:
A.I.R. 1963 (All) 260-Cited.

PRESIDENT’S
ORDER NO. 150 OF 1972

Article—7(3)

Any
reference in any law to an Advocate of the High Court of Bangladesh under the
said Article whether shall, as from the commencement day, be construed an
Advocate entitled to practice before both the Divisions of the Bangladesh
Supreme Court.

Under
Article 7(3) of President’s Order No. 150 of 1972, an Advocate of the High
Court of Bangladesh, shall, as from the commencement day, be construed as an
Advocate entitled to practice before both Divisions, High Court Division and
Appellate Division of the Bangladesh Supreme Court.

Shamsuddin
Ahmed, Advocate, Vs. The Peoples Republic of Bangladesh, 13 BLD (AD)105

PRESIDENT
ORDER NO. 155 OF 1972

Article—62(l)(b)

Dismissal of
appeal oil the preliminary point of maintainability

Since
the Election Tribunal allowed the election petition in part, the High Court
Division held that the impugned judgment being not fully in favour of the
election petitioner his appeal against the order of the Election Tribunal is
not incompetent. On the preliminary objection raised by the respondent it was
ordered that the two connected appeals (one by the appellant and the other by
the respondent) would proceed according to law.

S.S. Halder
V. Moulana Delwar Hossain Saydee and others, 18 BLD (HCD) 413.

Ref:
AIR 1916 Mad 473; AIR 1938 Oudh 18; 5 DLR 285; 12 I.A.23—Cited.