Case No: Civil Appeal No. 51 of 2002
Judge: KM Hasan ,
Court: Appellate Division ,,
Advocate: Mr. Abdur Razzaq,,
Citation: 55 DLR (AD) (2003) 94
Case Year: 2003
Appellant: Government of Bangladesh and others
Respondent: North Point University
Subject: Locus Standi,
Delivery Date: 2003-2-8
M Ruhul Amin, J.
KM Hasan, J.
Md. Fazlul Haque, J.
Secretary, Ministry of Education, Government of People's Republic of Bangladesh and others
North Point University
February 8, 2003.
The Constitution of Bangladesh, 1972
The Private University Act, 1992
A mandatory condition having not been complied with no right accrued to the respondent to take recourse to article 102 of the Constitution. Moreover matter is pending before the authority and as such no cause of action has yet arisen……………………(21 & 22)
Cases Referred to-
Kohinoor Mercantile Corporation vs Hazera Khatun 14 DLR 47; Modi Food Products Lid vs Commissioner of Sales Tax AIR 1956 (All) 35; ML Bagga vs C Murhar Rao AIR 1956 Hyderabad 35; Sarder and others vs State AIR 1961 Calcutta 181; Sugni Chand Dayaram Jatwami vs Pakistan 13 DLR (SC) 221.
Fariduddin Ahmed, Deputy Attorney‑General, instructed by Md. Ahsanullah Patwary, Advocate‑on-Record‑For the Appellants.
Abdur Razzaq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate‑on‑ Record‑For the Respondent.
Civil Appeal No. 51 of 2002
(From the judgment and order dated 9‑11‑2000 passed by the High Court Division in Writ Petition No. 5233 of 2000).
KM Hasan J.
This appeal by special leave arises against the judgment and order dated 9‑11‑2000 of the High Court Division passed in writ petition No. 5233 of 2000 making the rule absolute.
2. The facts, in short, are that the respondent, North Point University, filed an application under section 3 of the Private University Act, 1992 for founding a Private University. In the application the respondent has stated that some distinguished educationalists, with the intention of setting up a Private University named as "North Point University", for expansion and spreading of university education amongst the desirous and ambitious boys and girls of the country, formed a Board of Trustee. Along with the application were enclosed a project profile and a receipt of depositing on 28‑10‑4997 an amount of 1 crore in the Bank of Small Industries and Commerce Bangladesh Ltd. Dilkusha Branch, Dhaka in pursuance of the provisions of the Private University Act, 1992. The particulars were then forwarded to the University Grants Commission for its opinion and the Commission by its report informed the concerned authority that the respondent might be granted permission to open the University. Accordingly, when the respondent made all arrangements for the opening of the University, the Ministry suddenly sent the impugned letter No. শা১৪/১৩বেঃ বিঃ-১৩/৯৭/৩২৫-শিক্ষা dated 27‑9‑1995 addressing the respondent to comply with the requirement contained in the amended provision of the Private University Act, by which the amount to be deposited was increased from one crore to five crore for receiving permission to start the University. The respondent challenged the legality of the impugned letter before the High Court Division by invoking its writ jurisdiction in Writ Petition No. 5233 of 2000.
3. The High Court Division by its judgment and order dated 9‑11‑2000 made the Rule absolute declaring the impugned letter to be without lawful authority and of no legal effect on the ground that an amended Act cannot have retrospective effect. From the said decision of the High Court Division leave was granted on the following terms:
4. Mr. Fariduddin Ahmed, the Deputy Attorney‑General, appearing for the appellants, has argued that for non‑fulfilment of the provisions of the University Act, no vested right has accrued in favour of the respondent for getting approval of the Ministry for setting up the University. By way of explanation he has stated that the respondent failed to comply with the mandatory requirement of depositing Taka 5 crore under section 7(d) of the Private University Act. It has only deposited Taka 1 crore, then again that amount has been deposited in a private Bank and not in a Nationalised Bank which is a mandatory requirement of section 70) and thus the application remained an incomplete one and could not be acted upon.
5. Moreover, the application was, never rejected and it is still lying with the appellate authority, pending fulfilment of the direction, given to the respondent, to deposit Taka 5 crore as per section 7(d) of the University Act in a nationalised bank. In fact, the respondent by a letter dated October 2, 1998 Annexure‑H informed the appellate authority. “……….if ministry desires, we shall develop the reserve fund to the level of Taka 5 crore in phases." But till to date the respondent failed to deposit Taka 5 crore. Moreover, the respondent now cannot claim that it has to deposit only Taka one crore.
6. He has also argued that the respondent only sought permission for the setting up of the North Point University, by an application, under section 3 of the Act, but did not ask for any "Sanad" as per section 6 of the Act and, as such, the question of giving Sanad does not arise.
7. He has further argued that the respondent did not avail of the equally efficacious alternative remedy, by way of appeal, to the Chancellor of the University under section 6(5) of the Private University Act, 1992, before invoking the writ jurisdiction, therefore, the writ petition should not have been entertained by the High Court Division.
8. Mr. Abdur Razzaq, the learned Counsel, appearing for the, respondent, has argued that no question of an appeal to the Chancellor of the University arises, as till to date there was no rejection of the respondent's application to set up North Point University.
9. He has then, by referring to Annexure‑13, tried to show that the application filed by the respondent was actually under section 6 of the University Act for "Sanad" and not under section 3 and a "Sanad" should have been granted. He has also submitted that all the requirements under section 7 of the University Act having been fulfilled, a right has accrued in favour of the respondent, which has been violated by the appellants. He has, therefore, claimed that it has become mandatory on the part of the appellants to grant "Sanad" to the proposed University, as the application was not only filed under section 6 of the Act for a "Sanad" but also all the conditions under section 7 were fulfilled. Moreover, the University Grants Commission, after thorough scrutiny, has recommended the proposal. He has conceded that the licensing authority cannot be directed to issue licence and is not bound to grant a licence, but in view of fulfilment of all the conditions under sections 6 and 7 of the Act granting of "Sanad" by the concerned authority in favour of the respondent for setting up of the proposed University has become mandatory.
10. He has then argued that since the respondent has fulfilled all the conditions under section 7(d), before it was amended, increasing the amount to be deposited from Taka one crore to five crore, the condition of depositing five crore is not applicable to the respondent.
11. He has further argued that in view of section 6(b) of the General Clauses Act the respondent's application has to be considered under unamended section 7.
12. For proper adjudication of the matter the relevant ‑portion of section 7 of the Private University Act and section 6 of the General Clauses Act are quoted below:
13. Section 7(d) of the Act, 1992 is to the effect:
(ঘ) উহার অন্যুন এক কোটি টাকার সংরক্ষিতি তহবিল (reserved fund) কোন রাষ্ট্রয়াত্ত ব্যাংকে জমা থাকিতে হইবে।
16. The respondent claims to have applied before the authority on 6th October, 1997 whereas, section 7 of the Private University Act was amended with effect from 5th April, 1998 raising the amount of money to be deposited as reserve fund from 1 crore to 5 crore. The respondent was then asked by the Ministry of Education to deposit 5 crore, following the amended provision of section 7 of the Act, though it was required to‑pay Taka 1 crore and not 5 crore under the unamended provision. In view of section 6(b) of the General Clauses Act, the respondent submits, that since at the time of making the application for "Sanad"
17. The above submission gives rise to the question, whether substitution of one provision of an enactment‑by another, would amount to repeal of the provision. It is a cardinal principle of construction that every statute is prima facie prospective and not retrospective. In Ms Kohinoor Mercantile Corporation vs. Hazera Khatun 14 DLR 47
18. There are many cases upon the general doctrine whether an Act of Parliament may be read retrospectively or not and there are cases upon the meaning of particular statutes. The cases referred to, by the learned Counsel for the respondent are discussed below.
19. In Modi Food Products Ltd vs. Commissioner of Sales Tax reported in AIR 1956 (All) 35, a Division Bench of Allahabad High Court held that a legislature can certainly give retrospective effect to a piece of legislation passed by it, but an executive Government exercising subordinate and delegated legislative powers, cannot make legislation retrospective in effect, unless that power is expressly conferred by the statute. In the case of ML Bagga vs. C Murhar Rao reported in AIR 1956 Hyderabad 35 wherein it has been laid down by a Division Bench that parties are governed by the law in force on the date when a suit is instituted or a proceeding commenced and any subsequent amendment or alteration cannot affect pending proceedings. But it must always be read subject to the corollary that a legislature can always expressly provide that pending proceeding be affected by an amendment of the law. In Sarder and others vs. State AIR 1961 Calcutta 181 an FIR was lodged on 17 December, 1957 alleging abduction against the accused and charge‑sheet was submitted on 24 April, 1958. What happened in that case was that the investigation was started and a major portion was completed under the Calcutta Police Act and then by an amendment section 156 of the Cr. P. C. was made applicable by a notification dated 24 February, 1958. In those circumstances it was held that the subsequent amendment will be of no help for the prosecution. In Sugni Chand vs. Pakistan 13 DLR (SC) 221,
20. In view of the above cases, fundamental is the contention of the learned Counsel for the respondent, that the amended provision of section 7 of the Private Universities Act, 1992 having not been given retrospective effect, will not be applicable. Because the respondent applied for "Sanad" under section 6(2) on 6 October, 1997, deposited Taka 1 crore, on 28 October, 1997, the application of the respondent was referred to the University Grants Commission by the Government on 9 November, 1997 and the University Grants Commission gave its approval on 18 March, 1998 whereas section 7(d) was amended on 5‑4‑1998 and thereby created an obligation upon the Government to consider the application in accordance with the criteria set under the unamended section 7. This obligation, he claims, has not been affected by the subsequent amendment of section 7 of the Act.
21. We have considered the submissions and the decisions referred to by the learned Counsel and it appears to us that he is wrong in submitting that a right has already accrued in favour of the respondent before section 7 of the Private University Act was amended. If it was so, all the decisions he hag referred to would have been applicable, but a close scrutiny of the relevant dates as mentioned above, does not show, that prior to the amendment there resided in the respondent, a legal right to the performance of a legal duty by the concerned authority, which the respondent can claim the authority is in breach of. The submission of the learned Counsel that the amended section 7(d) should not receive a retrospective construction, would have applied, if a right had already accrued in favour of the respondent. There are acts like revenue acts which are often made to take effect from a day before their passing. Then again, extremely plain language is necessary to render penal an act done before the passing of a statute. But it is now almost an undisputed proposition of law, that no person has any right to the granting of a licence by a licensing authority. If refused, he cannot complain against it, unless a right already accrued in his favour and the right thus accrued, cannot be taken away by amendment. In the instant case the respondent claims to have fulfilled all the conditions enumerated under section 7 of the University Act. But the facts remain that in violation of section 7(d) it has deposited the money in a Private Bank, Small Industries and Commerce Bank Bangladesh Ltd and not in a nationalised bank.' Thus, a mandatory condition has not been complied with, by the respondent. For this nonfulfilment of a statutory precondition, in our view, no right has accrued to the respondent to take recourse to Article 102 of the Constitution for the breach of an accrued legal right. All the arguments regarding retrospective effect of a statute and the decisions in support of his arguments put forward by the learned Counsel for the respondent are not available under the circumstances.
22. Moreover, the respondent in its submission has admitted that the application filed by the respondent has not yet been rejected by the authority. It appears that by the impugned letter, the respondent is directed to comply with the requirement of amended section 7(d), by depositing 5 crore in place of 1 crore, to get a licence. The respondent could have approached the appropriate authority to agitate its grievance before it and wait for its reply. But instead it went to the High Court Division straightaway invoking the writ jurisdiction before the cause of action, if any, had matured.
In view of the above the appeal is allowed without any order as to costs.