Appellate Divison Cases
(Ciminal)
PARTIES
Suhel Alimed Chowdhury …………………… Appellant
= Versus =
Salahuddin Ayubi and others : ………………….Respondents
JUSTICE
Malimudut Amin Cliouhdhury C.J
Maunur Reza Chowdhury. J
Mohammad Gholam Rabbani J .
Md. Ruhul Amin J
Mohamad Fazlul Karim J
JUDGEMENT DATE: July 30th, 2001
Article 103 of the Constitution of Bangladesh
Nothing has been addressed to the Secretary from which it may be found that the
appellant or the Secretary has deliberately delayed delivery of the property . The High Court Division it appears exonerated contemnor No .2 without entering deep in to the matter and these letters cannot be aground to hold that the Secretary has deliberately obstructed the release of the property .
S. A. M. Iqbal Vs. State and another 3 BLC (AD) 125, Md. Samiulla Khan and another Vs. State 15 DLR 150
Cirminal Appeal No. 41 of 2000 (From the judgment and order dated IO.7.2OOO passed by the High Court Division in Contempt Petition No. 18 of 2000 arising out of Writ Petition No.3964 of 1998)
Mr. Rokanuddin Mahmud, Senior Advocate. (Mr S. S. Halder, Senior Advocate with him) instructed by Mr. Md. Aftab Hissain, Advocate-on-Record…. For appellant
Mr. M. Saleem Uilcih. Advocate, instructed by Mr. M. G. Bhiiiyan, Advocate-on-record. … For respondent No. 3
Respondent No.s. 1,2,4-6 : Exparte.
JUDGMENT
Mahumudul Amin Choudhury C. J. this Criminal appeal No. 41 of 2000 was filed by Suhel Ahmed Chowdhury. former Secretary Ministry of work of’ the Government of the People’s Republic of Bangladesh in the nature of direct appeal under Article 103 of the Constitution on being aggrieved by the judgment and order dated 1O.7.2OOO passed by a Division Bench of the High Court Division in Contempt Petition No. 18 of 2000 which arose for not implementing the order of the High Court Division passed in 9.6.1999 in Writ Petition No. 3964 of 1998 by not delivering the vacant possession of the properly in question to the writ petitioner.
2. The petition of contempt was filed by the respondent alleging that House No. 10, Lane No. 8. Block-B. Section-6. Mirpur Housing Estate under Pallabi Police Station was originally leased out by the Government by a deed of conveyance on 16.10.1962 to one Shahbaz khan who by a registered deed of conveyance dated 28.4.1970 sold the property for valuable consideration to Mst. Mashtari Begum wife of writ petitioner No. 1 an I mother of petitioner Nos. 2 to 6. The said property was taken over as Abandoned Property and allotted to contemner No. 3 by the government. The same was ultimately listed in ‘Ka’ list of AbandonedBuilding published in Bangladesh Gazette (Extraordinary ) on 23.9.1986 under Ordinance No 54 of 1985. The contempt petitioner then filed Case
No. 522 of 1987 before the First Court of Settlement who by judgment dated 2.4.1994
declared that the property is not an Abandoned Property and also directed for release of the same in favour of the contempt petitioner by evicting contemnor No .3 there from. Against that order of the Court of Settlement the Government moved Writ Petition No. 3400 of 1996 which was summarily rejected by the High Court Division on 18.11.1996. Thereafter several representations were made by the contempt petitioner for restoration of his possession but without any effect. Finding no other alternative Writ Petition No.3964 of 1998 was filed seeking a mandate from the Court for restoration of possession and in that Writ Petition the Rule was made assault in 9.6.1999 with a diection to the respondents to restore vacant possession of the aforesaid case property within six month from ihe date of receipt of the order. There was also an observation that if the possession is not restored the writ petitioner would be at liberty to come before the High Court Division of appropriate orders with an appropriate application. It is also the case of the contempt petitioner that drawn up order was served on the contemnors on 18.7.1999 but in spite ol receiving the same they died not honour the mandate of the High Court Division. Thereafter the contempt petitioner through their learned Advocate issued notice on 4.7.1999 and also on 30.11.1999 upon the present appellant and others calling upon them to honour the mandate give in the judgment of the High Court Division but in spite of these notices, order of the High Court Division was not honoured and consequently the present contempt petition was initiated by the writ petitioner.
3. Before the High Court Division the present appellant entered appearance and filed an affidavit-in-opposition and his case is that when Writ Petition No. 3400 of 1996 was rejected a Civil Petition for leave to Appeal No 298 of 1997 was filed before the Appellate Division which is still pending. It has also been stated that the law officer of the Ministry failed in his duties by not taking steps and the Ministry was kept in darkness on the fate of the aforesaid writ petition. The case of the present appellant is that there was no intentional non compliance of the High Court Division’s order and the delay was due to pendenay of the Civil Petition before the High Court Division which is pending since 1997 and the condemner tendered unqualified apology before that Division. It is also the case of the appellant that during pendency of the contempt petition an wider was passed from the Ministry directing release of the property from the Abandoned Property list and it is the abandoned property authority who are the appropriate authority in such matters to comply with the direction of High Court Division but they were prevented in effecting delivery of possession by an order of stay passed by the High Court Division in another writ petition initiated at the instance of contemnor No.3. It is the case of the appellant that he has not deliberately refused to comply with the direction of the High Court Division as regard delivery of possession of the case property.
4. It is an admitted facts that the case property was initially allotted to one Shahaha/. Khan on 16.101962 who sold the same to Mst. Mostary Begum wife of writ petitioner No.l and mother of writ petitioner Nos. 2 to 6 on 28.4.1970 but this property was taken over as an Abandoned Property and listed in the ‘Ka’ list. Against that Court of
Settlement was moved in Case No. 522 of 1987 where the same was declared as not an Abandoned Property and there was direction for release of the same. Against that order the gov eminent moved the High Court Division in Writ Petition No.3400 of 1996 but the same was rejected on 18.11.1996 . Thereafter the writ petitioner moved the Government for getting back the property but without success. Then Writ Petition No. 3964 of 1998
was filed before the High Court Division seeking a mandate from the court for restoration of possession of the case property and the Rule was made absolute directing the respondents to pestore vacant possession of the case house within six months from the date of receipt of the order. It das also been directed that if within the stipulated time possession _^ is not restored the petitioners would be at liberty to 7 come before the High Court Division for getting an appropriate order with an appropriate application. After announcement of the judgment a drawn up order was served upon the respondent on 18.7.1999 but the writ petitioners were not favored with delivery of possession. It is the case of the writ petitioner that through their Advocate they served notice for contempt of court on the respondents of the writ petition firstly on 4.7.1999 and then on 30.11.1999
asking them to honour the court’s direction. It is the case of the writ petitioner that even after these two notices nothing tangible was done for releasing the property.
5. From the aforesaid it appears that though there was a direction from the High Court Division to deliver vacant possession of the case property within six months from the date of receipt of the copy of the judgment and which according to the contempt petitioner was served on 18.7.1999 before the expiry of six months as directed notices for contempt of court were issued on 4.7.1999 and 30.11.1999 . It is submitted on behalf of the respondent contempt petitioner that these two notices may be construed as reminder to the appellant for honourting the High Court’s direction but we are of the view that the contempt petitioner moved loo fast and tried to force the appellant to pass favorable orders. It appears from the perusal of the materials that the present appellant was not the Secretary. Ministry of Works when the first notice of contempt was served by the contempt petitioner. The appellant joined as Secretary, Ministry of Work on 20.7.1999 and second notice was served on 30.11.1999 . So from the materials on record it appears that when the Rule was made abslute on 9.6.1999 the appellant was not the Secretary and even when the Advocate’s first notice was served he was not the Secretary. Contempt of court proceeding is admittedly a quasi criminal proceeding and in such a proceeding the contempt petitioner must prove beyond all reasonable doubt that the condernner has deliberately violated/flouted the court’s direction. Here in the present case where is the deliberate violation of the court’s direction by the appellant? It is also an admitted fact that the Secretary is not the proper authority to deliver vacant possession of the property to the writ petitioners. The only responsibility the Secretary has is to pass necessary orders releasing the property from the vested property list in compliance of the direction passed by the appropriate court or authority. The property is to be released and delivered possession by another authority who is contemnor No. 2 who has been let off by the High Court Division . From the materials on record it is clear that the property was not delivered to the writ petitioner within six months from the of receipt of the copy of
the order of the High court Division passed in Writ Petition No. 3964 of 1998 notice of which was also received by the previous Secretary on 4.7.1999 . Second notice was received by the appellant after his joining the office as Secretary. It was served on
him on 30/11/1999 which is well within the time of six months but even after the expiry of six months the property was not released as directed though the writ petitioner tried to get the property back. Nothing has been produced before the High Court Division or even before us to show that the appellant was keeping quite with the matter or that he has passed any direction not to release the property or to delay delivery of the property to the contempt petitioner. So where is the material to show that this appellant was responsible in deliberately violating the court’s direction? in such a matter onus lies heavily on the contempt petitioner to prove that there was willful violation of the court’s direction
which the contempt petitioner failed to discharge rather it is found from the available materials that during pendency of the contempt petition on 29.6.2000 the appellant passed an order directing release of the property and on that date s decision was taken to evict contemnor No. 3 and the occupier was directed to vacate the premises by 5.7.2000
and this notice was issued on 3.7.2000 and it appears that notice of eviction was issued by the Vested Property authority which is sufficient to indicate that the appellant had no hand in the eviction of the occupier or the delivery of the property to the contempt petitioner . The appellant’s duty-was only to pass order releasing the property from
the list which has been taken on 29.6.2000 though after the time fixed by the High Court Division if the aforesaid writ petition. From the perusal of the materials on record it appears that there was no contemptuous conduct of the appellant in dealing with the matter and this appellant had no arrogance shown in the delay in the disposal of the matter or taking decision. This may be due to various other reasons the Secretary. Ministry of Works has many other duties and he is not there only to look into the
vested property matters. In such a situation there may be some delay but this delay must be found to be an arrogant delay on the part of the contemnor or deliberate delay which is not proved in the present case. From order dated 29.6.2000 it appears that in consideration of the judgment of the courts of Settlement and the High Court Division the
Government released the property from the ‘Ka’ list of Abandoned Property and directed for immediate implementation of the same. This indicates the bona fide act on the part of the appellant or the Government. Thereafter step was taken by the vested property authority for releasing the property on eviction respondent No. 3 but that could not be
done due to filing of writ petition No .3592 of 2000 by the contemnor No. 3 which of course has been reported to be discharged on 16.7.2001 . It appears from the affidavit-in-opsition filed by the appellant that he tendered unqualified apology and prayed for
exempting him from drawing up any proceeding of contempt of court and to spare him from the said charge. From the perusal of the judgment of the High Court Division it appears that on the date of delivery of judgment the learned Advocate appearing
on behalf of the appellant informed the Court that already an order has been passed by the appellant releasing the property from the ‘Ka’ list and there was a diction from the vested property authority to contemnor No . 3 to vacate the premises by 5.72000 . It appears from the judgment that the High Court Division found that there was no dispute
on the service of notice dated 18.7.1999 but on 18.7.1999 this appellant was not the Secretary and there is nothing on record to show that this notice was ever shown to him by any of the officials sub Suhel Ahmed Chowdhury vs Salahuddin Ayubi (Mahumudul Amin Choudhury C. J) 1 ADC(2004) ordinate to him. So for a Secretary it was not possible to find out or look into the order issued from the High Court Division or from any court. Order dated 29/6/2000 directing to release the property clearly indicate the intention of the appellant and also his mind. The High Court Division found that when the contempt matter was fixed for delivery of judgment Mr. S. S Haider, learned Advocate has shown a photocopy of the notification that the Government directed to release the house in question and the court was also informed that a Magistrate with police force went to evict the occupant but it could not be done due to resistance. The High Court Division found that this was just a verbal statement made before the court without any affidavit. Further it was difficult for the High Court Division to accept the submission of Mr. S. S. Haider on the resistance in the delivery of the property.
6. The High court Division found as follows ; “This is simple a plea to avoid the compliance of the judgment and order of the High Court Division . If such a thing actually happened, this is nothing but a conspiracy in between the contemnor No. 1 and contemnor No. 3 and it was nothing but a hatched up conspired and managed drama only to avoid compliance of High Court Division’s order. Even a child of yesterday can not but feel shy to believe such a colored story”.
7. We fail to understand how the learned Judges of the High Court Division can come to this conclusion. This is too much.’ When a senior Counsel approach the court and made s submission of fact supported by photocopy of the order it was the bounden duty of the High Court Division to ask for an affidavit from the learned Advocate. It ease a
submission from the Bar and there was no earthly reason to disbelieve or doubt the submission made by Mr. S. S. Haider. Senior Advocate, the High Court Division has also found that Mr. Haider has made an untrue submission but instead of holding Mr. Haider responsible for such a submission the learned Judges of the High Court Division has cast
aspersion on the appellant. This indicate that the learned Judges of the High Court Division were bent upon to convict the appellant for reasons best known to them. Whenever a Senior Counsel make any oral submission or place any fact it is the practice
in this court to ask for an affidavit. May be that Mr. Haider due to shortage of lime failed to put in any affidavit but the learned Judges ought to have asked for an aaffidavit or would have asked the learned Counsel whether he was in a position to put any affidavit before making the aforesaid observation. From the aforesaid part of the judgment by the
learned Judges of the High Court Division we are convinced that the matter has been dealt with by them in a very crude manner and rude words were also used and untenable and unhealthy presumptions have been drawn. The appellant is a high official of the government and after a long career he became the Secretary to the Government before the
Rule was made absolute and service of notice on the compliance of the direction. In the enter contempt petition there is no allegation that the appellant is a man of rude and arrogant nature. There is also no allegation that his activities indicate that his conduct is questionable. From the materials it appears that there is no allegation of any such conduct
of the appellant.
8. It is well settled that an honest person would prefer dignity more than anything else and it appears to us that this consideration has suffered a great deal in the hands of the learned Judges of the High Court Division while convicting the appellant. The learned Judges failed to consider that in such a case of quasi criminal nature the onus lies heavily on the contempt petitioner to prove every detail of the contempt which is very much lacking in the present case. The learned Judges of the High Court Division ought to have considered the matter sympathetically considering the position the appellant was a Secretary to the Government having multifarious duties. The High Court Division it
appears fallen on the appellant with heavy hands who had not a fair and even handed treatment in that Division. It appears to us particularly from the aforesaid portion of the judgment that the learned Judges became touchy in the matter when even during
delivery of judgment a fact was placed before the court which is so important for the disposal of the matter which is as practice is always considered but here in the present case when Mr. Haider , brought the matter to the notice of the learned Judges that already on 29.6.2000 an order has been passed releasing the property and steps have been
taken for delivery of the same to the contempt petitioner, the High Court Division ought not to have been so touchy and sensitive. The judgment was delivered on 10.7.2000 and the order to release the property was passed on 29.6.2000 on which date the matter was heard. In such a situation when even on 10.7.2000 the order of release was brought to the
notice of the High Court Division the same ought to have been considered by the learned Judges. From the judgment it appears that this information by Mr. S. S. Haider was given before staring of the dictation of the judgment.
9. The High Court Division found as follows: “When this contempt matter was fixed for
delivering judgment Mr. S.S Haider has Shown us a Photocopy of the notification that
the government had directed to release the house in question”
10. This clearly indicate that before starting the delivery of judgment the court was informed of the order passed by the Government i. e. by the appellant and after getting this information what the High Court Division did is nothing but a mockery of justice. This order of releasing the property thought at a belated stage but before delivery of
judgment clearly indicate good intention of the appellant which was not taken in its correct perspective by the High Court Division resulting in wrongly conviction the appellant. In such matter of contempt of court of a high official this Division earlier observed in the case of S. A. M. Iqbal Vs. State and another reported in 3 BLC (AD) 125 . the then Chief
11. Justice Mr. Justice A. T. M. Af/.al observed as follows: “we have not been able to persuade ourselves to agree with the manner in which the matter has been dealt with particularly the rude words used against the appellant. A high officer of the Government at the fag end of his career with a long service recorde without any allegation of
blemish prior to the present incident should have been dealt with more consideration and
objectivity. An honest person would prefer dignity more than anything else. In the facts of the present case it has appeared to us that these considerations have suffered a great deal because of the lack of objectivity and perhaps over places sympathy for the respondent who was alleged to have been deprived of the fruit of the court’s decree for more than a decade. The court has fallen in the appellant with heavy hands to express its disgust. But the appellant has not had a fair even handed and objective treatment in the hands of the High Court Division.”
12. In that decision Justice Latifur Rahman also made the following observation:”
The jurisdiction of contempt must be taken with utmost care that it is not used on occasions or in cases to which it is not appropriate . In the case of Md. Samiulla Khan and another Vs. State 15 DLR 150 it has been held that the power of contempt should be used sparingly and only in serious cases and the court should not be either unduly touch and on the wisdom and restraint with which it is exercised. In the facts of the case the learned Judges of the High Court Division took a too drastic step of punishing the appellant for contempt of court being a little touchy and unduly sensitive which was not at all called for in this case.”
13. These are the most appropriate observations made by two Senior Judges of this Division who adorned the Seat of the Chief Justice, the observations made by the learned Judges fit in the present case as has been dealt with by the Judges of the High Court Division in convicting the appellant. Mr. Saleem Uilah, learned Advocate appearing on behalf of the respondent No. 3 submits that there was a directive to comply with the direction of the High Court Division on the delivery of the property with in six months from the date of receipt of the copy of the order and when after six moths the delivery was not affected the contemptuous act started. He submits that after receipt of notice from the learned Advocate they ought to have taken some steps for the delivery of the property and this indicate that the appellant was deliberately delaying the delivery and intentionally taken no step for the compliance of the directive. He submits that even
after the receipt of the notice of the contempt no step was taken for releasing the property. The order was passed ultimately on 29.6.2000 when the matter was being heard by the High Court Division and this indicate contemptuous act of the appellant on and from 30.11.19909 when he joined the Ministry as Sectetary.Mr. Saleem Uilah submits that the conduct of the appellant indicate constructive contempt if not direct contempt.
14. We can not accept this submission of Mr. Saleem Uilah as the present proceeding is a quasi criminal proceeding where the allegation must be proved beyond all reasonable doubt and there can not be any constructive liability as in civil matters. What the learned Advocate submits is what has been indicated in the judgment of the High Cour Division . The High Court Division it appears tried to indicate that an individual Secretary is not the concern but it is the office of the Secretary which is responsible for noncompliancc of the directive. But in contempt matters the personal liability is first and foremost consideration which is singularly absent in the present case. The respondent failed to substantiate the allegation against the appellant beyond all reasonable doubt and it appears from the judgment of the High Court Division that they became touchy and played in the hands of respondent No. 3 The learned Judges tried to help respondent
No. 3 who was fighting for the property by going out of way. The manner and the way this matter was dealt with by the learned Judges fit in the observation made by this Division in the aforesaid decision.
15. We have gone through the materials on record and for the foregoing reasons we hold that the High Court Division was not justified in punishing the appellant for the contempt of court. It is submitted by Mr. Rokanuddin Mahmud , learned Counsel for the appellant that the property could not be delivered to respondent due to an order of stay passed by a Division Bench of the High Court Division in Writ Petition No. 3592 of 2000 instituted by contemner No.3. He submits that by order dated 3.7.2000 a notice was issued on contemner No 3. to deliver vacant possession of the property by 5.7.2000 but on receipt of the notice the moved the High Court Division and obtained an order of stayed this order dated 3.7.2000 prevented the contemnor No.2 to deliver the property which
fact has been wrongly disbelieved by the learned Judges of the High Court Division. It appears that while disposing of the matter the High Court Division found that contemnor No 2. tried his level best to convince the appellant to pass necessary orders for release of the property and they referred to certain letters sent to ministry by contemnor No. 2 and placing reliance on these letters the High Court Division found that the appellant was responsible for not passing the order.
16. But it appears from the perusal of the record that contemner No.2 addressed those letters not to the appellant or the Ministry of Works but to the law officer of the Ministry. Nothing has been addressed to the Secretary from which it may be found that the appellant or the Secretary has deliberately delayed delivery of the property . The High Court Division it appears exonerated contemnor No .2 without entering deep in to the matter and these letters cannot be aground to hold that the Secretary has deliberately obstructed the release of the property . In such circumstances it must be found that
undue favour has been shown to the activities of contemner No 2. This contemner NO. 2 was personally responsible for issuing release order dated 3.7.2000. In such circumstances while convicting the appellant the High Court Division showed undue favour to contemner No 2. From this situation we are convinced that the learned Judges of the High Court Division decided their mind before hand to convict the appellant for reasons best known to them. The submissions of Mr. Saleem Uilah on this point therefore has no leg to stand upon . We have gone through the available materials and the judgment of the High Court Division and also heard the learned Advocate of both the sides and for the foregoing reasons we hold that the learned judges of the High Court Division were not justified or leagl in punishing the appellant for committing contempt of court.
17. Accordingly, the appeal is allowed. Order of conviction of contempt of court passed against this appellant Suhel Ahmed Chowdhury is hereby set aside and he is exonerated from all the liabilities with honour and dignity.
Ed.
Source : I ADC (2004),51