Fahria Akther Vs. Governemnt of Bangladesh and others 2017 (1) LNJ 333

Case No: Writ Petition No. 3998 of 2015

Judge: M. Enayetur Rahim. J.

Court: High Court Division,

Advocate: Mr. Sheikh Fazle Noor Taposh, Mr. Syed Mamun Mahbub,

Citation: 2017 (1) LNJ 333

Case Year: 2016

Appellant: Fahria Akther

Respondent: Governemnt of Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-06-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

M. Enayetur Rahim, J

And

Amir Hossain, J

Judgment on

10.02.2016

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Fahria Akther

. . . Petitioners

-Versus-

Governemnt of Bangladesh and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 102

Money Laundering Prothirodh Ain (VIII of 2009)

Section 15

The learned Special Judge has failed to exercise its statutory obligation as provided in law and thus, came to an erroneous decision in passing the impugned order. He ought to have held an inquiry upon the application for releasing the property in question from attachment filed by the petitioner in the manner as prescribed in section 15(3) of the Ain, 2009 or Ain, 2012, which is applicable in the instant case, and as such the impugned order was passed without complying the relevant provision of law. The claim of the petitioner that her right of property has been affected and the nature of the impugned order, we are unable to accept the submission of Mr. Mamun Mahbub, the learned Advocate appearing for the Commission, that the writ petition is not maintainable. The writ petitioner is not an accused in the case in connection of which the properties in question have been attached. If, we discharge the Rule on mere technical ground of maintanibility after a long period of issuance of the Rule the petitioner may not have any remedy in future. Because, the period of limitation has already been expired after the issuence of the Rule Nisi to file an appeal under the Ain, 2009 or 2012 and under the special law there is no scope to get condonation of delay. The Special Judge is directed to dispose of the application filed by the petitioner under section 15 of the Money Laundering Protirodh Ain, 2009 on merit in the light of the procedure as directed in the law within 3(three) months from the date of receipt of this order. It is pertinent to mention that making an inquiry under section 15(3) of the Money Laundering Protirodh Ain, 2009 or Ain, 2012 is an independent procedure and it has no connection with the proceeding of the trial.   . . . (17, 22, 23, 27 and 28)

Shafiqur Rahman Vs. Certificate Officer, Dacca and another, 29 DLR (SC), 332; Chairman, Anti Corruption Commission and another Vs. Enayetur Rahman and others, 64 DLR (Ad), 14; Muhammad Amin Khan Vs. Controller of Estate Duty, 13 DLR (SC), 105; Bangladesh Bank and others Vs. Zafar Ahmed Chowdhury and another, 56 DLR (AD), 174; Government of the Peoples Republic of Bangladesh and others Vs. Iqbal Hasan Mahmood Tuku, 60 DLR (AD), 147 and Tafizal Huq Sarker Vs. Bangladesh and others, 1981 BLD (AD 269 ref.

Mr. Fazle Noor Tapos, Advocate with

Mr. Mohammad Mehedi Hasan, Advocate

...For the Petitioner

Mr. Syed Mamun Mahbub, Advocate

. . .For the Respondent No.2

[Anti-Corruption Commission]  

JUDGMENT

M. Enayetur Rahim, J: On an application under Article 102(1) and (2) of the Constitution of the People’s Republic of Bangladesh the Rule Nisi was issued  calling upon the respondents to show cause as to why the impugned order dated 09.02.2015 passed by the learned Divisional Special Judge, Dhaka in Special Case No.138 of 2011 arising out of Dhanmondi Model Police Station Case No.10 dated 19.04.2011 rejecting an application filed under section 15 of the Money Laundering Act, 2009 for releasing the petitioner’s property being Flat No.B-2 measuring an area of 2280 Sft along with a car parking space situated at Baig Regency, Plot No.10, Block-CWN(C), Road No.39, Gulshan, Dhaka from attachment should not be declared to have been passed without lawful authority and is of no legal effect and as to why the respondents should not be directed to release the petitioner’s property being Flat No.B-2 measuring of an area of 2280 Sft along with a car parking space situated at Baig Regency, Plot No.10, Block-CWN(C), Road No.39, Gulshan, Dhaka from attachment in favour of the petitioner and/or pass such other or further order or orders as to this Court may seem fit and proper. (As written in the Rule issuing order)

2.            Short facts for disposal of the Rule are as follows;

2(a). The petitioner on 13.12.2010 had entered into an agreement with one Md. Arshad Hossain, son of Late Anowar Hossain of village-Sultangonj Para, (Eidgah Lane), Bogra for purchasing the Flat No.B-2 measuring an area of 2280 Sft along with a car parking space situated at Baig Regency, Plot No.10 Block-CWN(c), Road No.39, Gulshan, Dhaka. [here in after referred as property in question] with an amount of Tk. 3,30,00,000/- (Taka three crores and thirty lacs), annexure-B.

2(b).  As per the said agreement for sale the Petitioner had paid an amount of Tk. 30,00,000/- (Taka thirty lacs) to Mr. Arshad Hossain on the date of signing of the said agreement. Thereafter, the petitioner through several cheques on different occasions had paid entire consideration money, annexures-C-1 to C-3. Md. Arshad Hossain, the vendor after receiving entire amount had handed over the possession of the property in question to the petitioner and informed the same to the Managing Director of Asset Development & Holdings Limited vide a letter dated 26.12.2010, annexure-C.

2(c).  Subsequently, on 26.12.2010 as per the Rules of the Asset Developments & Holding Limited, the petitioner and the said Md. Arshad Hossain jointly submitted the form for reconfirmation of name of the Petitioner as allottee before registration and for obtaining utilities connections and accordingly the said application was accepted by the Asset Developments & Holding Limited, annexure-D.

2(d).  Thereafter, vide registered mail dated 01.01.2011 the Asset Developments & Holding Limited had informed the President and General Secretary of Baig Regency Complex Common Management Association regarding the transfer of ownership of flat in question in the name of the petitioner, annexure-E.

2(e).  Subsequently, through registered mail dated 02.01.2011 the Asset Developments & Holdings Limited had informed the petitioner to pay registration cost of an amount of Tk.9,98,605/- within 31.01.2011 for taking registration of the said flat in her name. The Asset Developments & Holdings Limited through registered mail dated 21.03.2011 also informed the petitioner to pay balance registration cost of an amount of Tk.4,58,170/-. The Asset Developments & Holdings Limited through registered mail dated 05.04.2011 further informed the petitioner to pay balance registration cost of an amount of Tk.7,32,850/- since RAJUK increased land value, annexure-F, F-1 and F-2.

2(f).  While the petitioner was waiting for getting registration of the said flat in her name, a case being Dhanmondi Police Station Case No.10 dated 19.04.2011 was filed by the respondent No.2 Anti Corruption Commissioner (here in after referred as Commission) under Section 2(Ka), 4(2) of the Money Laundering Act, 2009 and read with Section 2(tha) (oa) (AA) of the Money Laundering Act, 2009 against the said Md. Arshad Hossain and his wife Mrs. Lubna Islam Loni. Eventually a charge sheet was submitted on 30.06.2011 against them under the above provisions of law.

2(g).  However, on behalf of the respondent No. 2, one Md. Ebrahim, Assistant Director of if on 18.05.2011 filed an application under section 10(1) and 14 of the Money Laundering Act, 2009 before the Metropolitan Senior Special Judge, Dhaka (wrongly written in the writ petition as Divisional Special Judge) for attachment of the Petitioner’s aforesaid property along with other properties of the said Md. Arshad Hossain.

2(h).  The learned Metropolitan Senior Special Judge, vide Memo No.DMSJ/60(3)/C dated 22.05.2011 allowed the said application for attachment of the petitioner’s aforesaid property along with other properties of the said Md. Arshad Hossain.

2(i).   On coming to know about the said fact, the petitioner filed an application to the respondent no.2 stating the facts with a prayer for releasing the property in question from attachment which was received on 25.06.2012 by the respondent no.2 but of no result.

2(j).  Thereafter, the petitioner challenged the impugned Memo No.DMSJ/60(3)/C dated 22.05.2011 issued by the learned Metropolitan Senior Special Judge, Dhaka allowing attachment of the petitioner’s property filed a writ petition being writ petition No.3168 of 2013 before this Court. After hearing the respective parties, a Division Bench of this Court by the judgment and order on 24.04.2014 was pleased to discharge the Rule observing that-

“However, the legal position is that the petitioner had alternative forum under section 15 of Act to make a prayer for release of the said property and that the provision being part of special law has mandatory effect. As such, without invoking the said forum filing application under Article 102 of the Constitution challenging the impugned order dated 22.05.2011 passed by the Respondent No.3 about 2(two) years after cannot go to sustain the contention of the petitioner in the eye of law. Moreover, no explanation whatever has been given in the writ petition as to delay in filing the present writ petition.

At this juncture, Mr. Chowdhury, the learned Advocate for the petitioner submits that since he has no forum to agitate his grievance under section 15 of the Act, 2009 as such, for the cause of justice and equity may be allowed to make a prayer invoking the said provision of law.

However, considering the context of the case the petitioner is at liberty to make her prayer before the Adalat concern under section 15 of the Act, 2009.”; annexure-J.

2(k). Accordingly, on 01.11.2014 the petitioner filed an application under section 15 of the Money Laundering Act, 2009 before the respondent no.3 for releasing the property in question.

2(l).   The learned Divisional Special Judge, Dhaka after hearing the said application by its order dated 09.02.2015 rejected the said application.

2(m).   Thus, this application.

3.            Respondent no.2, the Commission contested the Rule by filing affidavit-in-opposition contending, inter-alia, that the subject matter regarding the writ petition is very much criminal offence arising out a criminal case under the Money Laundering Protirodh Ain, 2009 filed by the concerned authority. The petitioner purchased the property in question from Md. Arshad Hossain who was a Deputy General Manager of Power Grid Company Bangladesh Ltd. (now suspended) against whom a criminal case under the Money Laundering Protirodh Ain, 2009 has been proceeded. The said Company filed a Criminal Case before the Gulshan Police Station against the writ petitioner being Gulshan Police Station Case No.29 dated 08.09.2010 for misappropriation of about Tk.30 (Thirty) crores of the Company.

4.            Eventually, Mohammad Ibrahim, Assistant Director (¢h: Ae¤: J ac¿¹-1), Anti Corruption Commission also lodged an F.I.R. under section 2(ta) and 4(2) of the Money Laundering Protirodh Ain, 2009 and section 2(ta)(a)(aa) and section 13 of the Money Laundering Protirodh Ain, 2002 against said Md. Arshed Hossain and another (his wife). The said case was registered as Dhanmondi Police Station Case No.10 dated 19.04.2011.

5.            During the investigation, the respondent Commission filed 2(two) separated applications vide memo. 6855 dated 18.05.2011 praying for attachment of flats of the writ Petition before the Metropolitan Senior Special Judge, Dhaka. Having got such applications (Annexure-C and C-1), the learned Special Judge allowed the prayer of the Commissioner vide the order No. ¢XHjHp­S/48(4)/¢p dated 11.04.2011 and the order No. ¢XHjHp­S/60(1)/¢p dated 22.05.2011 respectively under section 14 of the Money Laundering Protirodh Ain, 2009. Thus, those flats of the writ petitioners were attached by the competent court by exercising the power under the Money Laundering Protirodh Ain, 2009.

6.            In the mean time, a charge sheet was submitted under the said Ain, thus the case was numbered as Special Case No.138 of 2011, now pending before Divisional Special Judge Court, Dhaka.

7.            Previously, the petitioner challenged the impugned Memo No.DMSJ/60(3)/C dated 22.05.2011 issued by the learned Divisional Special Judge, Dhaka allowing attachment of the property in question had filed a writ petition being writ petition No.3168 of 2013 before this Court. After hearing the parties, a Division Bench of this Court on 24.04.2014 was pleased to discharge the Rule with observation that the petitioner had alternative forum under section 15 of the Act to make a prayer for release of the said property. Thereafter, the petitioner moved before the Divisional Special Judge and the learned Special Judge refused his prayer for releasing the property in question. The learned Divisional Special Judge rightly and lawfully passed the impugned order within its jurisdiction. The writ petitioner without availing the forum of appeal has filed this writ petition and as such same is not maintainable.

8.            Mr. Fazle Noor Taposh appearing with Mr. Mohammad Mehedi Hasan, the learned Advocates having placed the application and the annexures thereto submitted that the present petitioner has become the lawful owner of the property in question on 26.12.2010 i.e. before four months, twenty one days of making of the said application for attachment [ 18.05.2011] and Md. Arshad Hossain had informed the Asset Developments & Holdings Limited regarding entering into the agreement with the petitioner and subsequently, the Asset Development & Holdings Limited has accepted his request and has taken all steps for registration of the property in question in the name of the petitioner. At the time of making application for attachment of the property in question by the Respondent No.2 Md. Arshad Hossain did not have any right, title or interest in the said property and the learned Special Judge failed to consider and appreciate this aspect with reference to the documents submitted by the petitioner.

9.            Mr. Fazle Noor Taposh lastly submitted that the learned Special Judge failed to understand the purport and scope of section 15(3) of the Money Laundering Protirodh Ain, 2009 and on erroneous view rejected the application of the petitioner who is a bona-fide purchaser of the property in question with value and thus, the impugned order is liable to be declare to have been passed without lawful authority and the property in question may be released from attachment in favour of the petitioner.

10.        Mr. Syed Mamun Mahbub, the learned Advocate appearing for the respondent no.2, submitted that the instant Writ Petition is not maintainable as specific remedy for filing appeal is available in the Ain, 2009 against an order passed under section 14 of the Ain. The petitioner without availing the statutory right as provided in section 22 of the said Ain has filed the instant writ petition. In this connection Mr. Mahbub referred to the cases of Shafiqur Rahman Vs. Certificate Officer, Dacca and another reported in 29 DLR (SC), page-332, Chairman, Anti Corruption Commission and another Vs. Enayetur Rahman and others, 64 DLR (Ad), Page-14.   

11.        Mr. Mahbub further submitted that the fate of the property in question will be decided at the trial on evidence and before conclusion of the trial there is no scope to decide the issue in question.

12.        In reply to the submission of the learned Advocate for the respondent no.2 regarding maintainability of the writ petition Mr. Fazle Noor Tapos referring to the cases of Muhammad Amin Khan Vs. Controller of Estate Duty, reported in 13 DLR (SC), page-105, Bangladesh Bank and others Vs. Zafar Ahmed Chowdhury and another, reported in 56 DLR (AD), page-174, Government of the Peoples Republic of Bangladesh and others Vs. Iqbal Hasan Mahmood Tuku, reported in 60 DLR (AD), page-147, Tafizal Huq Sarker Vs. Bangladesh and others, reported in 1981 BLD (AD) page-269 submits that the petitioner has rightly filed the Writ Petition where the question of petitioner’s right to property is involved and filing of appeal was not the equally efficacious remedy.

13.        Heard the learned Advocate for the respective parties, perused the application, the affidavit in opposition filed by respondent no.2 and the annexures thereto.

14.        On perusal of the impugned order dated 09.02.2014 it appears that the learned Special Judge in a mechanical way without assigning any reason whatsoever rejected the application filed by the petition for releasing the property in question from attachment. The learned Special Judge simply held that the said application was not maintainable.

15.        Section 15 of the Money Laundering Protirodh Ain, 2009 runs as follows;

[15z Ahl¦ÜL«a h¡ ­œ²¡LL«a pÇf¢š ®gla fÐc¡ez-(1) d¡l¡ 14 Hl Ad£­e Bc¡ma ®L¡e pÇf¢š Ahl¦ÜLlZ h¡ ®œ²¡L B­cn fÐc¡e L¢l­m, A¢ik¤š² hÉ¢š² h¡ pš¡ hÉa£a AeÉ ®L¡e hÉ¢š² h¡ pš¡l Eš² pÇf¢š­a ®L¡e ü¡bÑ b¡¢L­m ¢a¢e h¡ Eš² pš¡ Eq¡ ®gla f¡Ch¡l SeÉ Ahl¦ÜLlZ h¡ ®œ²¡L B­cn fÐQ¡­ll a¡¢lM qC­a 30(¢œn) ¢c­el j­dÉ Bc¡m­a B­hce L¢l­a f¡¢l­hez

15(2)z Ef-d¡l¡ (1) Hl Ad£e ®L¡e hÉ¢š² h¡ pš¡ Bc¡m­a B­hce L¢l­m B­hcef­œ ¢ejÀh¢ZÑa abÉ¡¢c E­õM L¢l­a qC­h, kb¡x-

(L) j¡¢emä¡¢lw h¡ ®L¡e pÇfªš² Afl¡­dl p¢qa Eš² pÇf¢šl fÐaÉr h¡ f­l¡ri¡­h ®L¡e pw¢nÔøa¡ e¡C;

(M) B­hceL¡l£ fÐaÉr h¡ f­l¡ri¡­h A¢ik¤š² j¡¢emä¡¢lw h¡ AeÉ ®L¡e pÇfªš² Afl¡­dl p¡­b pÇfªš² ee;

(N) B­hceL¡l£ A¢ik¤­š²l e¢je£ ee h¡ A¢ik¤­š²l f­r ®L¡e c¡¢uaÅ f¡me L¢l­a­Re e¡;

(O) Ahl¦ÜLlZ h¡ ®œ²¡LL«a pÇf¢š­a A¢ik¤š² hÉ¢š² h¡ pš¡l ®L¡e üaÅ, ü¡bÑ h¡ j¡¢mL¡e¡ e¡C; Hhw

(P) Ahl¦ÜLlZ h¡ ®œ²¡LL«a pÇf¢š­a B­hceL¡l£l üaÅ, ü¡bÑ J j¡¢mL¡e¡ l¢qu¡­Rz

15(3)z d¡l¡ 14 Hl Ef-d¡l¡ (5) H k¡q¡ ¢LR¤C b¡L¥L e¡ ®Le, HC d¡l¡l Ad£e pÇf¢š ®gla f¡Ch¡l SeÉ Bc¡ma ®L¡e B­hcefСç qC­m B­hceL¡l£, ac¿¹L¡l£ pwÙÛ¡ J A¢ik¤š² hÉ¢š² h¡ pš¡­L öe¡e£l p¤­k¡N fÐc¡e L¢l­he Hhw öe¡e£ A­¿¹, fЭu¡Se£u L¡NS¡¢c fkÑ¡­m¡Qe¡œ²­j J l¡øÌ La«ÑL h¢ZÑa pÇf¢š­a fÐaÉr h¡ f­l¡ri¡­h j¡¢emä¡¢lw h¡ pÇfªš² Afl¡­dl p¡­b pÇfªš²a¡l NËqZ­k¡NÉ p­¾c­ql ®L¡e L¡lZ EfÙÛ¡fe e¡ L¢l­m, Ef-d¡l¡ (1) Hl Ad£e c¡¢MmL«a B­hceL¡l£l B­hce pÇf­LÑ Bc¡ma p¿ºø qC­m Ahl¦ÜLlZ h¡ ®œ²¡L B­cn h¡¢amœ²­j pÇf¢š¢V, B­c­n E¢õ¢Ma ¢edÑ¡¢la pj­ul j­dÉ, B­hceL¡l£l Ae¤L¥­m qÙ¹¡¿¹­ll B­cn fÐc¡e L¢l­hez]

16.        Similar provision has been made in section 15 of the Money Laundering Ain, 2012.

17.        If we consider the above provision of law coupled with the impugned order we have no hesitation to hold that the learned Special Judge has failed to exercise its statutory obligation as provided in law and thus, came to an erroneous decision in passing the impugned order. He ought to have held an inquiry upon the application for releasing the property in question from attachment filed by the petitioner in the manner as prescribed in section 15(3) of the Ain, 2009 or Ain, 2012, which is applicable in the instant case, and as such the impugned order was passed without complying the relevant provision of law.

18.        In the case of Lt. Col. Nawabzada Muhammad Amin Khan Vs The Controller of Estate Duty and others, reported in 13 DLR (SC), page-105 it has been held that:

“The rule that the Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring the jurisdiction of the Court. It is a rule by which the Court regulates the exercise of its own discretion.”

19.        Above view has been reiterated in the case of Bangladesh Bank and others Vs Zafar Ahmed Chowdhury and another, reported in 56 DLR (AD), page-175.

20.        In the said case it has been held that:

“On an examination of the requisition orders, we have already held that they are unauthorized, illegal and void. It has been recently held by their Lordships of the Supreme Court in Muhammad Amir Khan Vs Controller of Estate Duty (PLD 1961 SC 119), that if an order affecting one’s legal right is challenged as wholly without authority, an alternative in the way of the exercise of writ jurisdiction rather a petition for a writ, in the opinion of their Lordships, is a more appropriate remedy in such a case. Therefore, the writ petition is maintainable on the authority of the decision in the case cited above, although the remedies, by way of appeal and revision provided in section 4A of the Act were not availed of.”

The principle of law laid down in the above referred decision is the principle in which the aggrieved party instead of availing the appellate forum could avail the writ jurisdiction in spite of alternative remedy by way of appeal which is not likely to be equally efficacious and effective in facts and circumstances of the case basing on the established principle that:

“the rule that the Court will not entertain, a writ petition when the appropriate remedy is yet available is not a rule of law barring the jurisdictions of the Court. It is a rule by which the Court regulates the exercise of its own discretion.” [Under lines supplied]

21.        In the case of Chairman, Anti Corruption commissioner and another Vs. Enayetur Rahman, The Appellate Division held that:

“The High Court Division will not allow a litigant to invoke the extra ordinary jurisdcition to be converted into courts of appeal or revision. It is only where statutory remedies are entirely ill suited to meet the demands of extra ordinary situations that is to say where vires of a statute is in question or where the determination is malafide or where any action is taken by the executives in contravention of the principles of natural justice or where the fundamental right of a citizen has been affected by an act or where the statute is intra vires but the action taken is without jurisdiction and the vindication of public justice require that recourse may be had to Article 102(2) of the Constitution.” [Under lines supplied].

22.        Having considered the above propositions of law and the facts and circumstances of the present case particularly the claim of the petitioner that her right of property has been affected and the nature of the impugned order, we are unable to accept the submission of Mr. Mamun Mahbub, the learned Advocate appearing for the Commission, that the writ petition is not maintainable.

23.        Moreover, the writ petitioner is not an accused in the case in connection of which the properties in question have been attached. If, we discharge the Rule on mere technical ground of maintanibility after a long period of issuance of the Rule the petitioner may not have any remedy in future. Because, the period of limitation has already been expired after the issuence of the Rule Nisi to file an appeal under the Ain, 2009 or 2012 and under the special law there is no scope to get condonation of delay.

24.        Having discussed and considered as above, we are inclined to make the Rule absolute in part.

25.        Accordingly, the Rule is made absolute in part without any order as to cost.

26.        The order dated 09.02.2015 passed by the learned Divisional Special Judge, Dhaka in Special Case No.138 of 2011 arising out of Dhanmondi Model Police Station Case No.10 dated 19.04.2011 rejecting the application filed under section 15 of the Money Laundering Act, 2009 for releasing the petitioner’s property being Flat No.B-2 measuring an area of 2280 Sft along with a car parking space situated at Baig Regency, plot No.10, Block-CWN(c), Road No.39, Gulshan, Dhaka from attachment is declared to have been passed without lawful authority and is of no legal effect.

27.        The Special Judge is directed to dispose of the application filed by the petitioner under section 15 of the Money Laundering Protirodh Ain, 2009 on merit in the light of the procedure as directed in the law within 3(three) months from the date of receipt of this order.

28.        It is pertinent to mention that making an inquiry under section 15(3) of the Money Laundering Protirodh Ain, 2009 or Ain, 2012 is an independent procedure and it has no connection with the proceeding of the trial. As such the trial court is directed to proceed with the trial in accordance with law.

Ed.