Case No: Civil Appeal No. 104 of 1980
Judge: F.K.M.A. Munim,
Court: Appellate Division ,,
Citation: 33 DLR (AD) (1981) 177
Appellant: Bangladesh Steamer Agents Association
Subject: Principles of Natural Justice,
Delivery Date: 1981-02-10
Kemaluddin Hossain, CJ.
Fazle Munim, J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
Bangladesh Steamer Agents Association
Bangladesh, represented by the Secretary, Ministry of Commerce, Secretariat Building, Dhaka
Feb 10. 1981
The concept of natural justice cannot be confined to any precise definition. It is not justice in the abstract or moral sense and is not even justice according to natural law. The essential feature of the principle of natural justice is simply that no person shall be deprived of any order judicial or otherwise without a hearing before an independent authority, not interested in the proceeding or in any party in the proceeding. …… (11)
Hamidul Huq Chowdhury, Senior Advocate, Asrarul Hossain, Senior Advocate, Khalilur Rahman, Advocate with him instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Appellant.
K. A. Bakr, Attorney-General, A.W. Bhuiyan, Deputy Attorney-General with him instructed by B. Hossain, Advocate-on-Record —For the Respondent.
Civil Appeal No. 104 of 1980
(From Judgment and Order dated June 27, 1980 passed by the High Court Division in Writ Petition No. 869 of 1979.)
1. This appeal arises from a Writ Petition No. 869 of 1979.
The appellant association registered under section 26 of Companies Act, 1913 on 29 5-78, obtained a licence from the Government under section 3 of the Trade Organisations Ordinance, 1951 (Ordinance No. XLV of 1961) as a nonprofit making concern. One of the objects of the appellant company, as contained in Clause 3 (36) of its memorandum of association is imparting of instruction and training, theoretical and practical, in the principles and practices of weighment, measurement, storage, discharge of properties of various cargoes meant for export and import and to run measuring. On October 15, 1979 the Ministry of Commerce directed the appellant to amend the aforesaid clause within 30 days. Before quoting this order mention may be made that a similar direction was previously given by the Government to the appellant who was challenged by the appellant before the High Court Division in Writ Petition No. 1003 of 1978.
Failing to obtain any relief there, the appellant moved this Court which set aside the order declaring it to be invalid as no opportunity was given to the appellant to show cause against the same. Pursuant to the judgment of this Division in Civil Appeal No. 36 of 1979 the Ministry of Commerce issued the impugned order on October 15, 1979 which rues as follows:-
And whereas Government considers it expedient to direct the Bangladesh Steamer Agents Association to amend its Memorandum of Association in the manner hereinafter appearing;"
Now, therefore, in exercise of powers conferred by Section 8 (1)(b) of the Trade Organisations Ordinance, 1961 (XLV of 1961), the Government is pleased to direct the said Bangladesh Steamer Agents Association to amend its Memorandum of Association by deleting Clause 3(36) thereof within 30 days from the date of order under intimation to this Ministry and the Registrar of Joint Companies, Dacca."
2. In Writ Petition No. 869 of 1979 this order was challenged by the appellant contending, inter alia, that the order was passed with malafide intention to debar the appellant from pursuing lawful trade and offended the principles of natural justice.
3. Respondent asserted that the appellant was granted a licence, being licence No. 2/78 on May 6, 1978 to run the company without profit Clause 3(36) of the appellant's Memo-randum of Association authorised it to run licence measurers' department, hereinafter mentioned as L.M.D., for the purpose of imparting instruction in the principles and practices of weighment, measurement, storage and discharge of properties of various cargoes and not for running an L.M.D. as a business. For preventing over invoicing and under invoicing and for ensuring accurate and impartial weighment and measurement of goods for export and import no private organisation was allowed to carry on such business. The Government, therefore, limited it to the National Chambers of Commerce which represent both shippers and ship owners. In this regard the Government followed the International Convention for Simplification of Customs Formalities, 1923. Public notice was issued on September 12, 1959 empowering the Chambers of Commerce and Industry of Dacca, Narayanganj, Khulna and Chittagong under Article 112(2) of the Convention to issue certificates of weighment, measurement and quality in respect of all goods.
It was further stated by the respondent that most of the members of the appellant association are of foreign origin and as such it looks after the interest of their foreign principals. In pursuance of the decision of this Court the respondent issued a show cause notice upon the appellant on August 11, 1979 and after considering the replies, passed the impugned order under section 8(1)(b) of the Tirade Organisations Ordinance, 1961.The learned Judges of the High Court Division, while discharging the rule, held that the Government was empowered under section 8 of the aforesaid Ordinance to pass the impugned order. Being aggrieved by this order the appellant moved this Division and obtained leave to consider whether the impugned order violated the provisions of Articles 27 and 40 of the Constitution and also to consider whether the High Court Division was wrong in deciding the locus standi of the appellant to challenge the impugned order on the ground of infringement of fundamental rights. Mr. Hamidul Huq Chowdhury, counsel for the appellant, submitted that the impugned order violated the Constitutional provisions of not only Articles 27 and 40 but also those of Article 31 of the Constitution. Besides, the learned Judges of the High Court Division were wrong in deciding that the appellant had not any locus standi to file the petition under Article 102. The learned Counsel further contended that the impugned order was passed by the Government in violation of the principles of natural justice and m colourable exercise of powers under section 8 of the Ordinance. Without mincing words, he made it clear that the impugned order was passed by the Government at the instance of the Chittagong Chamber of Commerce. He asserted that under clause 3(36) of the memorandum of association the appellant could carry on the business of weighment and measurement which could not be prohibited to be carried on by the appellant.
Mr. K. A. Bakr, Attorney-General, submitted that the Government had power under section 8 of the Ordinance to direct the appellant to amend its memorandum of association by deleting clause 3(36). He submitted that the aforesaid provisions of law in section 8 recognise the State power to control foreign trade. Besides, under the provisions of International Convention referred to above, the Government had the power to authorise any person or organisation to issue certificate of origin or certificate of weighment, measurement or quality of goods which are exported or imported.
4. In spite of constitutional and legal issues raised by the learned Counsels on both sides, the whole controversy seems to rest on the scope of clause 3(36) of the appellant's memorandum of association which reads as follows:—
5. While the Government thinks that this clause does not authorise the appellant to carry' on the trade or business mentioned therein, the appellant claims the right to run the business of weighment, measurement, etc. relying on it. Upon a careful reading of the clause, it would appear that the clause merely authorises the appellant to provide theoretical and practical instruction in the principles and practice of weighment, measurement, etc. and for the purpose of doing so it has further been empowered to run the L.M.D. Had the clause aimed to authorise it to run the L.M.D. for carrying on trade or business of weighment, measurement, etc., words appropriate to indicate such intention would have been used. There is no ambiguity or lack of clarity regarding the meaning of the words used in the clause. To allow the appellant to run the business or trade of weighment, measurement, etc. would be to allow it to do something which it is not authorised by the clause. Even assuming that clause 3(36) of the appellant's memorandum of association authorised it to carry on the trade, a relevant question might be raised as to whether the Government had the power to amend the clause having the effect of prohibiting it from carrying on such trade. The answer to this question depends on the consideration of the provisions of section 8(1)(b) of the Ordinance under which Government has done so.
6. It appears from the provisions of section 8 (1)(b) of the Ordinance that a registered trade organisation is powerless to alter or modify any of its articles or memorandum of association without obtaining the prior approval of she Government. Secondly, section 8(1)(b) shows that the Government may, whenever it considers expedient, direct such organization to alter or modify its articles and memorandum of association. The relevant provisions of the section as contained in section 8(1)(b) are as follows :—
(b) the appropriate Government may, whenever it considers expedient to do so, by order in writing, direct any such trade organization to rescind, amend or otherwise modify its articles, memorandum, rules or bye-laws or to make any rule or bye-law, in such manner and within such period as may be specified in the order."
8. Since the appellant falls within the definition of "registered trade organisation" provided in the Ordinance and about which no controversy has been raised, the appellant is bound by the terms of its section as quoted above.
9. Considering the scope of Clause 3(36) of the appellant's memorandum of association which constitutes the very basis of the appellant's claim to carry on the business of trade of weighment, measurement, etc and the provisions of section 8(1)(b) of the Ordinance, it appears that both the contentions remain unsubstantiated and the Government's power to give the direction to delete the clause does exist.
In view of the above considerations it is not necessary to refer to other objections raised by the learned Counsel of the appellant. The appeal is dismissed, but without any order as to costs.