Ashis Kumar Mahajan Vs. Bangladesh Bar Council & ors., (Kashefa Hussain, J.)

Case No: First Miscellaneous Appeal No. 141 of 2011 With Civil Rule No. 213 (F.M.)of 2011

Judge: S. M. Emdadul Hoque, J And Kashefa Hussain, J

Court: High Court Division,

Advocate: Mr. Subrata Chowdhury with Mr. Sarowar Alam Chowdhury, Mr. Samir Majumder, Mr. Robin Chandra Paul and Mr. Md. Mominul Islam, Advocates,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Ashis Kumar Mahajan @ Chowdhury

Respondent: Bangladesh Bar Council and others

Subject: Bangladesh Legal Practitioners and Bar Council Order

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

S. M. Emdadul Hoque, J

And

Kashefa Hussain, J

 

Judgment on

29.10.2017

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Ashis Kumar Mahajan @ Chowdhury

. . . Appellant

-Versus-

Bangladesh Bar Council and others

. . .Respondents

Bangladesh Legal Practitioners and Bar Council Order (PO 46 of 1972)

Order 33(1)

Order 33(1) of the order of 1972 provides for a tribunal comprising of 3 persons under the Bar Council Order. Whereas in the instant case it is found that only two persons were conducting the proceedings of the tribunal and which is clear as daylight from the signature made in the order. Therefore, the impugned order dated 05.03.2011 passed by the tribunal suffers from the inherent illegality of Coram Non-judice and is not maintainable under the law and ought to be set-aside. However, we do not find it necessary to mull upon the factual issues since the order is inherently defective and unlawful, suffering from the illegality of Coram Non- judice upon violation of the provisions under order 33(1) of the Bangladesh Legal Practitioners and Bar Council Order,1972.    . . . (7)

Mr. Subrata Chowdhury with

Mr. Sarowar Alam Chowdhury,

Mr. Samir Majumder,

Mr. Robin Chandra Paul and

Mr. Md. Mominul Islam, Advocates

. . . For the Appellant

Mr. Muntu Kumar Mondal, Advocate

. . . For the Respondents

JUDGMENT

Kashefa Hussain, J. This appeal is directed against the judgment and order dated 05.03.2011 passed by the Tribunal No. 11, Bangladesh Bar Council in Complaint Case No. 3 of 2003 (22/2002) suspending the appellant-petitioner from practicing as Advocate for 1(one) year.

2.             Facts relevant for disposal of this appeal inter alia is that the case arose between the present appellant and the respondent in this First Miscellaneous Appeal under the circumstances that the present respondent No. 2 as complainant filed a complaint against the present appellant under Complaint Case No. 22 of 2002 subsequently renumbered as Complaint Case No. 3 of 2003 in the Bangladesh Bar Council making several allegations including that of physical assault against the present appellant (opposite party in complainant case No. 03 of 2003) and the complainant opposite party stated that it amounts to professional misconduct of the appellant being opposite party in the complaint case. The appellant (opposite party in Complainant case No. 03 of 2003) submitted written statement denying the allegations made against him. After hearing, an order was passed by the Bangladesh Bar Council Tribunal No. 2 dated 05.03.2011 suspending the appellant from practicing as an Advocate for one year from the date of the said order passed dated 05.03.2011. The said order of the tribunal No. 2 of Bangladesh Bar Council dated 05.03.2011 was passed under the signature of two persons namely Mr. Md. Yahya, Chairman, Tribunal No. 2 Bangladesh Bar Council and Mr. Sheikh Aktarul Islam, member, Bangladesh Bar Council. Being aggrieved by the order dated 05.03.2011 passed by the Bangladesh Bar Council the opposite party in Complaint Case No. 03 of 2003 as Appellant preferred the instant Civil Miscellaneous Appeal which is before us for disposal.

3.             Learned Advocate Mr. Subrata Chowdhury along with Mr. Sarowar Alam Chowdhury appeared for the appellant (opposite party in Complaint Case No. 03 of 2003) while none appeared for the respondents.

4.             However, power has been filed by the learned Advocate Mr. Mintu Kumar Mondol on behalf of the respondent No. 2.

5.             Learned Advocate Mr. Subrata Chowdhury on behalf of the appellant (opposite party in complaint case No. 03 of 2003) opens his submissions upon assertion that the impugned judgment and order dated 05.03.2011 passed by the Tribunal No. 2 Bangladesh Bar Council in Complaint Case No. 3 of 2003 suspending the appellant for one year from practice is illegal, unlawful and not maintainable. He elaborates his contention relying upon his argument that the impugned order suffers from an inherent defect of being Coram non-judice. He contends that under section 33 (1) of the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 the number of persons consisting of a Tribunal of the Bangladesh Bar Council shall constitute of 3 persons. He draws our attention to the impugned order dated 05.03.2011 passed in complaint case No. 3 of 2003 and points out that in the instant case the Tribunal most unlawfully passed the order under the signature of two persons only. In the light of his submissions he persists that hence such an order has flouted and violated the prescribed Rules provided in section 33 (1) of the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 and thus is inherently an unlawful order and not maintainable. Mr. Subrata Chowdhury also makes some submissions relying upon some alleged facts relating to the allegations made against the appellant including the allegations of physical assault and the learned Advocate submits that all these allegations made against him are false. He concludes his submissions upon assertion that under the facts and circumstances and in the light of the provisions of Section 33 (1) of the Bangladesh Legal practitioners and Bar Council Order and Rules, 1972  the impugned Order dated 05.03.2011 suffering from an inherent defect of being Coram Non-judice and the allegations being wrong, therefore, the order of suspension dated 05.03.2011 from one year of practice ought to be set aside and the appeal be allowed and the connected Rule be made absolute for ends of justice.

6.             We have heard the learned Advocate for the appellant and we have perused the materials and the records before us including the impugned order passed by the Tribunal No. 2 Bangladesh Bar Council dated 05.03.2011. From the impugned order it is clear that the order was passed under the signature of 2 persons. We have perused the provisions of section 33 (1) of the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 which reads:

   The Bar Council may constitute one or more Tribunals and each such Tribunal shall consist of three persons of whom two shall be persons elected by the council from amongst its members and the other shall be a person co-opted by the Council from amongst the advocates on the roll, and the senior most advocate amongst the members of a Tribunal shall be its chairman.

7.             Needless to say that it is evident that upon scrutiny of the impugned order and upon perusal of section 33 (1) of Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972, it is crystal clear that the tribunal did not follow the provisions of the Bar Council Order of 1972. Section 33(1) of the order of 1972 provides for a tribunal comprising of 3 persons under the Bar Council Order. Whereas in the instant case it is found that only two persons were conducting the proceedings of the tribunal and which is clear as daylight from the signature made in the order. Therefore, the impugned order dated 05.03.2011 passed by the tribunal suffers from the inherent illegality of Coram Non-judice and is not maintainable under the law and ought to be set-aside. Senior Advocate Mr. Subrata Chowdhury in his submissions also raised some factual issues denying the several allegations including the allegations of physical assault made against the appellant. However, we do not find it necessary to mull upon these factual issues since the order is inherently defective and unlawful, suffering from the illegality of Coram Non-judice upon violation of the provisions under section 33 (1) of the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972.

8.             In the light of the submissions made by the learned Advocate for the appellant and upon perusal of the documents and the impugned order and upon examination of the relevant Rules we are inclined to allowed the instant First Miscellaneous appeal.