Bangladesh and others Vs. Sarwar Kamal, 2 LNJ AD (2013) 133

Case No: CIVIL MISCELLANEOUS PETITION FOR LEAVE TO APPEAL NO. 940 OF 2010

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Rokanuddin Mahmud,,

Citation: 2 LNJ AD (2013) 133

Case Year: 2013

Appellant: Bangladesh and others

Respondent: Sarwar Kamal

Subject: Local Government,

Delivery Date: 2010-10-28

APPELLATE DIVISION
(CIVIL)
 
A.B.M. Khairul Haque, C.J.
Md. Muzammel Hossain, J.
S. K. Sinha, J.

Judgment
28.10.2010
 
Bangladesh, represented by the Secretary Ministry of Local Govt. Rural Development and C-Operatives, (LGED) Local Government Division, Dhaka and others
... Petitioners
-Versus-
Sarwar Kamal
...Respondent
 

Local Government (Paurashava) Act, 2009
Sections 31(2)(3) and  32
On an application of the writ petitioner, the High Court Division issued a Rule and stayed operation of the impugned order. An order once takes effect, it cannot be stayed. If an order of suspension takes effect, it cannot be stayed till the same is finally disposed of on merit. In the instant case, the operation of the impugned memo dated 20.10.10 placing the writ petitioner under suspension, was stayed by the High Court Division, after it was effective 4 days earlier. Under such circumstances, the operation of the interim order of stay of the High Court Division was stayed till disposal of the writ petition. . . .(3 to 8)
 
For the Petitioner : Mr. Mahbubey Alam, Attorney General instructed by Mr. B. Hossain, Advocate-on-Record.

For the Respondent : Mr. Rokanuddin Mahmud, Senior Advocate (with Mr. Mansurul Haque Chowdhury, Senior Advocate) instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.

Civil Miscellaneous Petition for Leave to Appeal No. 940 of  2010
 
O R D E R
 
        This is an application for stay filed by the writ respondents against the order of stay passed by the High Court Division in writ petition No. 8558 of 2010.

Mr. Mahbubey Alam, the learned Attorney General, appearing for the petitioner submits that inspite of the order dated 20.10.2010 issued by the Ministry of Local Government, Rural Development and Co-operatives (LGRD), the respondent No.1, the Councilor and Mayor-in-Charge of the Cox’s Bazar Pourashava was put under suspension on the ground of misconduct and he was also directed to show cause within 7(seven) days as to why he shall not be removed from the post of councilor and Mayor in charge of Cox’s Bazar Pourashava. He further submits in pursuance of the said order of suspension, Mr. Raj Bihari Das, the next panel member for Mayor, had already taken over the charge of Mayor on 23.10.2010.

Mr. Rokanuddin Mahmud, the learned Counsel appearing for the Writ Petitioner, submits that the Writ Petitioner is an elected Councilor and he has been performing his duties within the ambit of law. As such, being aggrieved by the impugned order dated 20.10.2010, issued by the Ministry of Local Government, Rural Development and Cooperatives, (LGRD) he filed the instant writ petition and the High Court Division being satisfied of the apparent illegality, stayed the operation of the aforesaid impugned order. He has referred to the provisions of subsection (3) of section 31 of Pourashava Ain, 2010, as regards the handing over the charge of Office of the Mayor and submits that the writ petitioner is entitled to perform the functions of Mayor-in-Charge since he is not liable to be removed under section 32 of the Act. We have heard the learned Counsel of both the parties at length.

It appears that the order dated 20.10.10 issued by the Ministry of Local Government, Rural Development and Co-operatives, (LGRD) putting the acting Mayor under suspension, was forwarded to him to hand over his duties to the Panal Mayor-2 within 3(three) days purportedly under subsection (2) of section 31 of the Local Government (Pourashava) Act, and also a notice was issued upon him to show cause within 7(seven) working days as to why he would not be removed from the post of Councilor and Mayorin- Charge of the Cox’s Bazar Paurashava.

On the application of the writ-petitioner, the High Court Division issued a Rule and stayed operation of the aforesaid impugned orders (Annexure D & E to the Writ Petition).

It should be noted that an order once takes effect, it cannot be stayed. If an order of suspension takes effect, it cannot be stayed till the same is finally disposed of on merit.

In the instant case, the operation of the impugned memo dated 20.10.10, placing the petitioner under suspension, was stayed by the High Court Division, after it was effective 4 days earlier.

Under such circumstances, let the operation of the interim order of stay passed by the High Court Division on 24.01.2010 in Writ Petition No. 8558 of 2010, be stayed till disposal of the writ petition, pending before the High Court Division. The parties may take steps for expeditious disposal of the said Writ Petition on merit, if so advised.

The civil miscellaneous petition is accordingly disposed of.

Ed.