Abul Bashar Vs. Investment Corporation of Bangladesh & another

Case No: Civil Petition for Leave to Appeal No. 643 of 1999

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Abdur Rab Choudhury,AKM Nazrul Islam ,,

Citation: 52 DLR (AD) (2000) 178

Case Year: 2000

Appellant: Abul Bashar

Respondent: Investment Corporation of Bangladesh & another

Subject: Administrative Law,

Delivery Date: 2000-08-16

Abul Bashar

 

Vs.

 Investment Corporation of Bangladesh & another


52 DLR (AD) (2000) 178


Supreme Court

Appellate Division

(Civil)


Present:

Latifur Rahman CJ

Bimalendu Bikash Roy Choudhury J

A M Mahmudur Rahman J

Mahmudul Amin Choudhury J

Kazi Ebadul Hoque J


Abul Bashar ……………………...Petitioner

Vs.

Investment Corporation of Bangladesh & another………….. Respondent


Judgment

August 16, 2000.


The Limitation Act, 1908 (Act No. IX of 1908)

Sections 4-25, 14, 29(2)

The view of the Administrative Appellate tribunal that section 14 of the Limitation Act was not applicable to the proceedings before it is held to be correct. Under section 3 of the Limitation Act, every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed subject to the provisions of section 4 to 25……..(8) 


Cases referred to-

Md. Abdus Sukkur vs. Chairman, National Board Revenue and others, 17 BLD (AD) 43; Bangladesh Bank vs. Mohammad Abdul Mannan, 46 DLR (AD) 1, Government of Bangladesh vs. Md. Abdul Karim, 47 DLR(AD) 146; Jahangir Kabir vs. Bangladesh, 48 DLR(AD)156.


Lawyers Involved:

Abdur Rab Choudhury, Senior Adv Mohammad Ali Senior Advocate with him)instructed by Md. Nawab Ali Advocate –on- Record- for the Petitioner.

AKM Nazrul Islam Senior Advocate instructed by Sharifuddin Chaklader Advocate-on-Record- for Respondent No. 1.

Not represented—Respondent No. 2

 

Civil Petition for Leave to Appeal No. 643 of 1999

(From the judgment and order dated 1999 passed by the Administrative Appellate Tribunal in appeal Case No. 51 of 1996).


Judgment

                     Bimalendu Bikash Roy Choudhury.- In exercise of powers under regulation 56(2) of the Investment Corporation of Bangladesh(Officers and Employees) Service Regulations, the Investment Corporation of Bangladesh terminated the service of the petitioner, an Assistant General Manager of the Corporation, on 23 April 1995. The petitioner challenged the order of termination in Writ Petition No. 921 of 1995. The petition was summarily rejected on 4 May 1995. The petitioner thereafter made a civil petition for leave to appeal before the Appellate Division which was also summarily rejected on 13 December 1995.

2. Being unsuccessful, the petitioner filed Case No. 242 of 1995 before the Administrative Tribunal, Dhaka, on 31 December 1995, which was beyond time. He, however, sought to have the benefit of section 14 of the Limitation Act on the ground that the time spent for prosecution of the writ petition and the civil petition for leave to appeal should be excluded in computation of the period of limitation prescribed under the Administrative Tribunals Act, 1980.

3. The Administrative Tribunal did not accept the plea and dismissed the case as barred by limitation.

4. The petitioner preferred Appeal Case No. 51 of 1996 to the Administrative Appellate Tribunal which found that the decision of the Administrative Tribunal was in accord with the principle laid down by this Court in Md. Abdus Sukkur vs. Chairman, National Board of Revenue and others, 17 BLD (AD) 43. The appeal was accordingly dismissed.

5. The petitioner now seeks leave to appeal before us.

6. It is contended that the Administrative Tribunal did not properly construe the provisions of the Administrative Tribunals Act and the provision of section 29(2) of the Limitation Act, 1908 and that consequently the High Court Division has fallen into an error of law in not excluding the period spent in the prosecution of the writ petition as well as the civil petition for leave to appeal in computing the period of limitation. The learned Counsel for the petitioner submits that the decision in 17 BLD (AD) 43 is no authority whether or not the provisions of section 14 would be available in a case where a special period of limitation is prescribed, the previous decisions of the Appellate Division in Bangladesh Bank vs. Mohammad Abdul Mannan reported in 46 DLR (AD) 1 , Government of Bangladesh vs. Md. Abdul Karim reported in 47 DLR (AD) 146 and Jahangir Kabir vs. Bangladesh reported in 48 DLR (AD) 156 having neither been referred to nor considered. In the face of the latter decisions, he continues, the case in 17 BLD (AD) 43 is no authority that the provisions of section 14 of the Limitation Act are not applicable to an application under the Administrative Tribunals Act.

7. Section 29(2) of the Limitation Act provides as under:

“Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provision of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special law—

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special law ; and

(b) the remaining provisions of this Act shall not apply.”

8. Under section 3 of the said Act every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed subject to the provisions of sections 4 to 25 (inclusive).

9. The proceeding in question was initiated by the petitioner before the Administrative Tribunal under sub-section (2) of section 4 of the Administrative Tribunals Act, a special law. The second proviso to the sub-section prescribes for filing an application thereunder a period of limitation different from that prescribed in the Limitation Act. It reads as follows:

  “Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.”

10. It is clear from the wording of the second Gift proviso to sub-section (2) of section 4 of the Administrative Tribunals Act that the legislative intendment behind this provision is to exclude the proceedings governed by the Administrative Tribunals Act from the operation of the benefit conferred by sub-section (2) of section 29.

11. The petitioner cannot, therefore, have the benefit of section 14 of the Limitation Act while computing the period of limitation in filing his application before the Administrative Tribunal.

12. The question as to the applicability of section 14 of the Limitation Act arose in the case of Md. Abdus Sukkur vs Chairman, National Board of Revenue and others, 17 BLD (AD) 43. The Administrative Appellate Tribunal held that section 14 of the Limitation Act was not applicable to the proceedings before the Tribunal. The Appellate Division, upon a civil petition for leave to appeal, found the said view to be correct. The decisions cited by the learned Counsel for the petitioner are distinguishable on facts.

The petition is, therefore, dismissed.

Ed.