Bangladesh Vs. Md. Abdul Kayum Miah, VII ADC (2010) 304

Case No: Civil Petition for Leave to Appeal No. 40 of 2010

Judge: S. K. Sinha,

Court: High Court Division,,

Advocate: Mr. Nurul Amin,,

Citation: VII ADC (2010) 304

Case Year: 2010

Appellant: Bangladesh

Respondent: Md. Abdul Kayum Miah

Subject: Constitutional Law,

Delivery Date: 2010-01-18

Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Tafazzul Islam, CJ.
Md. Abdul Matin, J.
Surendra Kumar Sinha, J.
 
Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Commerce, Bangladeshi Secretariat, Dhaka and others
…………. Petitioners
Vs.
Md. Abdul Kayum Miah
..................Respondent
 
Judgment
January 18, 2010
 
Lawyers Involved:
Nazrul Islam Talukder, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioners.
Nurul Amin, Advocate, instructed by A.K.M. Shahidul Hague, Advocate-on-Record-For Respondent.
 
Civil Petition for Leave to Appeal No.40 of 2010.
(From the judgment and order dated 9.12.2009 passed by the High Court Division in Civil Revision No. 8990 of 2008.)
 
JUDGMENT
 
SK Sinha J.
 
1. This petition for leave to appeal, at the instance of writ respondent Nos. 1-5, is directed against the judgment and order dated 9th December, 2009 of a Division Bench of the High Court Division in Writ Petition No.8990 of 2008 making the rule nisi absolute.
 
2. Respondent No.1 instituted the above writ petition stating that he along with some other owners of vehicles formed "Faridpur District Minibus Owners Samity" in 1982. The Samity was affiliated as a sister concern of Bangladesh Sarak Paribahan Samity on 26th May, 1986 and it was registered on 6th October, 1999. The Samity applied for licence to the Ministry of Commerce, Government of Bangladesh and the Government duly rec­ognized the Samity and a licence was also issued. The Ministry of Commerce there­upon in violation of section 3(2)(Cha) of the Trade Organization Ordinance, 1961, issued a license in the name of the "Faridpur District Minibus Owners Group" although it issued license in the name of Faridpur District Minibus Owners Samity. The Ministry of Commerce can not issue more that one licence in a District. The further case of the writ petitioner is that while the Samity had been functioning peacefully, he had received a letter under memo dated 18th May, 2005 from the Ministry of Commerce addressing the President of Faridpur District Minibus owners Group although there was no existence of any organisation in such name. The writ peti­tioner has been holding the post of the President of the Samity since 1993, and he was elected for the second term on 17th March, 2007, for a period of two years, the tenure of which would expire on 17th March, 2009. While the writ petitioner's Samity had been peacefully maintaining the affairs, the writ respondent No.2 by order under memo dated 11th November, 2008 appointed the writ respondent No.5 as administrator of the Faridpur District Minibus Owners Samity. In pursuance of the said order, the writ respondent No.5 issued a letter upon the writ petitioner under memo dated 13th November, 2008 directing him to hand over charge of the affairs of Faridpur Minibus Owners Group. The writ petitioner made a repre­sentation to the Deputy Commissioner stating that there was no existence of any association in the name of Minibus Owners Group at Faridpur and that their Samity was registered as Faridpur District Minibus Owners Group. The writ petition­er being aggrieved by the said letter under memo dated 13th November, 2008, insti­tuted the above writ petition and obtained a rule nisi.
 
3. The writ respondent No.8 contested the rule nisi by filing an affidavit-in-opposition. Its case is that Faridpur District Minibus Owners Group is a different Trade Organization which group obtained licence under the provisions of Trade Organization Ordinance, 1961. The writ petitioner was selected as President of the Faridpur District Minibus Owner Group for the years 2000-2001 and he was elect­ed as President for the years 2002-2004. After expiry of the term, no election was held for the office of President for which the Faridpur District Minibus owners Group filed an application to the then Minister of Commerce on 12th June, 2005, for appointing an administrator. Pursuant to such application the Deputy Commissioner, Faridpur submitted an inquiry report and on the basis of the said report, the administrator was appointed. The election of the Faridpur District Minibus Malik Group is scheduled to be held on 25th January, 2010. The writ peti­tion is not legally maintainable and rule nisi is liable to be discharged.
 
4. The learned Judges of the High Court Division upon hearing the parties by judg­ment and order dated 9th December, 2009, made the rule nisi absolute and declared the impugned memo dated 11th November, 2008, appointing the writ respondent No.5, as administrator of Faridpur District Minibus Owners Group as has been passed without any lawful authority and is of no legal effect.
 
5. Being aggrieved by the said judgment and order, the writ respondent Nos.1-5 preferred the above leave petition. It is contended by Mr. Nazrul Islam Talukder, learned Deputy Attorney General appear­ing for the petitioners that the learned Judges of the High Court Division erred in law in making the rule nisi absolute in falling to notice that there is no cause of action of the writ petition on the day of delivery of the judgment on 9th December, 2009. It is further contended that after taking over the charge as admin­istrator by the writ respondent No.5, the Election Board conducted the election of the Faridpur District Minibus  Owners Group and declared the result of the exec­utive committee on 5th January, 2010 and in pursuance of the election of the execu­tive committee, the administrator handed over the  charge of the  affairs of the Faridpur District Minibus Owners Group to the elected executive committee on the same date and that the elected executive committee has been performing the func­tions  of the Faridpur Minibus Owners Group.
 
6. In support of his contention, the learned Deputy Attorney General has drawn our attention to the statements in paragraph 11 of the writ petition. It is stated therein that the writ petitioner was lastly elected as President of Faridpur District Minibus Owners Samity on 17th March, 2007 for a period of two years and his tenure "will be expired on 17.3.2009". The petitioners also  filed some  documents by filing Additional paper book, relating to the election schedule, the formation of the executive committee of Faridpur District Minibus Malik Group by election and the letter of handing over possession of the affairs of the said Samity to the new exec­utive committee.
 
7. Mr. Md. Nurul Amin, the learned Counsel appearing for the writ petitioner does not dispute the claim of Mr. Nuzrul Islam Talukder, the learned Deputy Attorney General that the newly elected executive committee has taken over the charge of the affairs of the Samity. In the writ petition the writ petitioner admitted that the tenure of the last executive com­mittee expired on 17th March, 2009 but the learned Judges of the High Court Division ignored the above admitted posi­tion. In view of the admission of the learned counsel for the writ petitioner that the new executive committee of the Faridpur District Minibus Owners Group has assumed the charge on 5th January, 2010 for the term 2010-2011, the impugned judgment of the High Court Division has rendered infructious.
 
In view of the above, we are not inclined to enter into the merit of the matter.
 
The leave petition is disposed of with the above observations.
 
Ed.