Case No: Civil Petition for Leave to Appeal No. 993 of 2004
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Mr. Saiful Reza,Mr. Shamim Khaled Ahmed,,
Citation: 58 DLR (AD) (2006) 126
Case Year: 2006
Appellant: A. R. A. Jute Mills Limited
Respondent: Janata Bank and others
Delivery Date: 2006-01-05
Md. Ruhul Amin, J.
Mohammad Fazlul Karim, J.
M. M. Ruhul Amin, J.
Md. Tafazzul Islam, J.
Amirul Kabir Chowdhury, J.
A. R. A. Jute Mills Limited
Janata Bank and others
5 January, 2006
Artha Rin Adalot Ain (IV of 1990)
Sections 4 (2) and 4 (3)
Code of Civil Procedure (V of 1908)
Order VII, rule 11
Constitution of Bangladesh, 1972
Articles 115 and 116
It appears that the Judge of the Artha Rin Adalat in question is Joint District Judge appointed in the post by transferring him by notification under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. There is thus no substance in the submission of the petitioner as to absence of jurisdiction of the Judge to hold the post. ……. (15)
Case Referred To-
Idris Miah vs. Bangladesh and others 10 BLC (2005) HCD 728.
Saiful Reza, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record- For the Petitioner
Shamim Khaled Ahmed, Advocate, instructed by Md. Abu Siddique, Advocate-on-Record- For Respondent No. 1
Not represented-For Respondent Nos. 2-6
Civil Petition for Leave to Appeal No.993 Of 2004
(From the judgment and order dated 12.05.2004 passed by the High Court Division in Writ Petition No. 1372 of 2001.)
A.R. A. Jute Mills Limited, a public Limited Company-the writ petitioner has filed this petition for leave to appeal against the judgment and order dated 12.05.2004 passed by the High Court Division in Writ Petition No. 1372 of 2001.
2. The petitioner moved the High Court Division under Article 102 of the Constitution challenging the constitutionality of section 4(2) and (3) of the Artha Rin Adalat Ain 1990 (Act IV of 1990) and appointment of Mr.Md Amirul Islam, Subordinate Judge as a Judge of the Artha Rin Adalat, 1st Court, Dhaka by the Government and also challenging the continuation of Title Suit No. 258 of 2000 filed by the respondent No.1 Janata Bank against the petitioner for realisation of Tk.37,49,17,128.93, particularly order No.6 dated 15.03.2001 passed by the respondent No. 5.
3. The respondent No. 1 Janata Bank instituted the aforesaid suit against the petitioner stating, inter alia, that the petitioner availed ‘C.C. hypothecation’ and ‘C.C. pledge' loan facilities/limits of the plaintiff bank in 1982-83 on execution of charge documents and 'Letter of Guarantee' and also executed mortgage deeds, relating to immovable properties and that other facilities like 'interest free Blocked Account' were also made available to the petitioner and that the petitioner availed of the facilities and an amount of Tk.37,49,1,128.93 was outstanding against the petitioner as on 30.06.2000 and the plaintiff bank being unable to realise the money instituted the aforesaid suit against the petitioner.
4. The petitioner appeared in the suit and filed an application under Order VII Rule 11 of the Code of Civil Procedure praying for rejection of the plaint stating, inter-alia, that sub-sections (2) and (3) of section 4 of the Artha Rin Adalat Ain 1990 are ultra vires the Constitution inasmuch as the enactment of the said provisions, by the Parliament, investing powers with the Government, instead of the President of the Republic, regarding appointment and posting of the Judges of Artha Rin Adalat, is in violation of Article 115 of the Constitution and, therefore, by virtue of the said provisions i.e. sub-sections (2) and (3) of Section 4 of the Ain the Government did not acquire any power for making appointments and postings of the Judges of the Artha Rin Adalat including that of the respondent No.5 and the appointment and posting of the respondent No. 5 being thus illegal the exercise of judicial functions by him regarding the proceeding of Title Suit No.258 of 2000 under the Adalat Act is also without lawful authority.
5. The trial court after hearing the parties rejected the said application by order dated 15.03.2001.
6. Reiterating the aforesaid averments the petitioner moved the High Court Division in its writ jurisdiction under Article 102 of the Constitution praying for declaring aforesaid sub-sections (2) and (3) of section 4 of the Artha Rin Adalat ultravires the Constitution and also for declaring that the writ respondent No. 4 (i.e. respondent No. 5 the Artha Rin Adalat) has got no jurisdiction to try the suit and that continuation of the suit in the said court is illegal.
7. The rule was contested by the respondent bank. The High Court Division after hearing the parties discharged the rule by the impugned judgment and order.
Hence is this petition.
8. In support of the petition Mr. Saiful Reza, learned Advocate submits, inter alia, that Mr. Md. Amirul Islam the learned Judge of Artha Rin Adalat in question has not been appointed by the President in accordance with provisions of Articles 115 and 116 of the Constitution and that the provisions of Sub-sections (2) and (3) of Section 4 of Artha Rin Adalat Ain 1990 are also ultravires the Constitution. A Judge has to be firstly appointed by the President, in consultation with the Supreme Court and in the instant case the appointment and subsequent posting having been not so made the action if ultra vires and the learned Judge has therefore, no jurisdiction to hold the post and try the suit and so continuation of the said suit in the said court is also unlawful and that the order dated 15. 03. 2001 passed by the said Adalat is, therefore, without jurisdiction and also of no legal effect and so the High Court Division committed error in discharging the rule.
9. Mr. Shamim Khaled Ahmed, learned Advocate appearing on behalf of the respondent No. 1 opposes the petition contending, inter alia, that there is no illegality in the legislation of Sub-sections (2) and (3) of Section 4 of the Artha Rin Adalat Ain and that the Act has been passed by the legislature in its wisdom authorising the Government to appoint the Judges of the Artha Rin Adalat and thus to constitute the said Court.
10. He further submits that the actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally constituted and the suit has been legally proceeded with.
11. We have considered the submissions and perused the materials on record.
Section 4 of Artha Rin Adalat Ain, in short, the Ain runs as follows:-
“৪ । আদালত প্রতিষ্ঠা (১) আর্থিক প্রতিষ্ঠান কর্তৃক মামলার বিচার ও এই আইনের সংশ্লিষ্ট অন্যান্য বিষয়ের উদ্দেশ্য পূরণকল্পে সরকার, উপ-ধারা (২) ও (৩) এর বিধান সাপেক্ষে, সরকারি গেজেটে প্রজ্ঞাপন দ্বারা, প্রত্যেক জেলায় এক বা একাধিক অর্থ ঋণ আদালত প্রতিষ্ঠা করিতে পারিবে।
(২) সরকার, সুবিধাজনক মনে করলে, দুই বা ততোধিক জেলার জন্য একটি ঋণ আদালত প্রতিষ্ঠা করিতে পারিবে।
(৩) উপ-ধারা (১) বা (২) এর অধীন কোন অর্থ ঋণ আদালত প্রতিষ্ঠিত বা ঘোষিত না হইয়া থাকিলে, আর্থিক প্রতিষ্ঠানের ঋণ আদায় সম্পর্কিত মামলা সংশ্লিষ্ট স্থানীয় অধিক্ষেত্রের যুগ্ম জেলা জজ আদালতে দায়ের করিতে হইবে এবং এই আইনের বিধানবলি এই সকল মামলার শুনানি, জারি, আপীল ইত্যাদি যাবতীয় কার্যক্রমে এমনভাবে অনুসরণীয় হইবে, জেন উক্ত যুগ্ম জেলা জজ আদালত এই আইনের অধীনেই প্রতিষ্ঠিত বা ঘোষিত আদালত এবং এই আইনের উদ্দেশ্য সাধন কল্পে উক্ত জেলা জজের আদালত এই আইনের অধীন অর্থ ঋণ আদালত হিসেবে গণ্য হইবে।
12. From the aforesaid provision in Section 4(1) of the Ain it appears that the Government have been authorized to establish one or more Artha Rin Adalats in every district by notification published in Gazette subject to the provisions of sub-sections (2) and (3). Sub-section (2) provides that the government, if feels convenient could establish one Adalat for two or more Districts and sub-section (3) provides that if no court is established or declared under sub-section (1) and (2) above, for realisation of loan of any financial institution the cases shall have to be filed in the court of the Joint District Judge having the local jurisdiction and the provisions regarding hearing, execution, appeal etc. as provided in the Ain shall be followed, as if said Joint District Judge is the established or declared Adalat under the Ain and for the purpose of achieving the object of the Ain, said Joint District Judge shall be deemed to be the Artha Rin Adalat under the Ain.
13. Let us now examine Articles 115 and 116 of the Constitution which read as follows:-
"115. Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.
116. The control (including the power posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court."
14. The contention made on behalf of the petitioner that the legislation i.e. the provisions of sub-sections (2) and (3) of Section 4 of the Ain are violative of Articles 115 and 116 of the Constitution is not based on reason inasmuch as the respondent's case is that the Judge of the Artha Rin Adalat originally was Subordinate Judge, later redesigned as Joint District Judge and that the aforesaid Judge was appointed by the President and the control and discipline of the Subordinate Court as envisaged in Article 116 of the Constitution very much vest in the President and in case of posting, as in the present case, the Supreme Court has been consulted and the action in question has been taken with the approval of the President as evident from the gazette notification published to that effect inasmuch as even in the absence of such notification sub-section (3) of section 4 of the Ain provides that the jurisdiction of the Artha Rin Adalat shall vest with the Joint District Judge having the local jurisdiction, as if declared/established under the Ain for the purpose of achieving the object of the Ain and shall be deemed to be the Artha Rin Adalat under the Ain. The aforesaid subsection (3) having the legislative sanction by virtue of deeming clause having been declared/ established under section 4(1) and (2) of the Ain has been equated with the Adalat established under subsection (1) and (2) and could not be challenged as the appointments to, the post of Joint District Judge and posting/conferring with the jurisdiction are invariably done by the President in consultation with the Supreme Court under the provisions of Article 115 and 116 of the Constitution.
15. It appears that the Judge of the Artha Rin Adalat in question is Joint District Judge (previously Subordinate Judge) and has been appointed, in the present post by transferring him by notification issued by the Ministry of Law, Justice and Parliamentary Affairs and under the Order of the President and in consultation with the Supreme Court and the notification being published in the Gazette. We are thus unable to find any substance in the submission of the petitioner.
16. The action has been alleged to be ultra vires on the ground that Article 55 has not been complied with. There is nothing on record to show that the action has not been exercised as per the provision of Article 55(2) of the Constitution and moreso, it has been expressed to have been taken in the name of the President and as such the argument advanced on behalf of the petitioner on this score also has no force.
17. In such view of the matter we find that the legislation providing sub-sections (2) and (3) of Section 4 of the Artha Rin Adalat Ain, 1990 is a lawful legislation and that the appointment of the Artha Rin Adalat, the respondent No. 5 herein, does not suffer from any legal flaw.
18. It may be mentioned that though several grievances have been raised on behalf of the petitioner but no material whatsoever has been produced in support of the same.
19. Lastly, order dated 15.03.2001 passed by the Artha Rin Adalat rejecting the application of the petitioner under Order VII Rule 11 of the Code of Civil Procedure has also been challenged. On perusal of the order dated 15.03.2001 and in view of our discussion made above we do not find any error therein and as such the petitioner's grievance regarding order dated 15.03.2001 also has got no leg to stand.
20. In course of hearing the learned Counsel for the respondent No.1 placed before us a relevant decision in the case of Idris Miah Vs. Bangladesh and others reported in 10 BLC (2005) HCD 728. We have perused the same and we have nothing to differ with the said decision.
21. We have perused the judgment of the High Court Division and are of the view that the High Court Division correctly decided the matter and as such it does not call for our interference.
22. In view of the discussion made above, the petition is dismissed.