Case No: Civil Appeal No. 21 of 1975
Court: Appellate Division ,,
Advocate: Faqeer Shahabuddin Ahmad,Mr. Moudud Ahmed,,
Citation: 28 DLR (AD) (1976) 120
Case Year: 1976
Appellant: Government of Bangladesh
Respondent: Messres ATJ Industries
Subject: Abandoned Property,
Delivery Date: 1976-3-15
A. B. Mahmud Husain J
Ahsanuddin Choudhury J
Kemaluddin Hussain J
D. C. Bhattacharya J
Government of Bangladesh
Messrs A. T. J. Industries Ltd. and others
March 15, 1976.
Bangladesh Abandoned Property (Control and Disposal) Order, 1972
Meaning of ‘abandoned property’ explained — Language of the article not free from ambiguity causing thereby its interpretation a matter of complexity— Principle to be followed is to harmonise meaning of all the clauses of Art. 2(1) — Three sub-clauses are to be read disjunctively.
Faqeer Shahabuddin Ahmed, Attorney-General with Mahmudul Islam, Assistant Attorney-General—For the Appellant.
Shah Abu Mayeen, Advocate instructed by Abdur Rab—1, Advocate on—Record.
Moudud Ahmed, Advocate with Mainur Reza Chowdhury, Advocate instructed by S. S. Hoda, Advocate-on-Record—For the Respondent No. 1.
Ex-Parte—Respondent Nos. 2 to 4.
Civil Appeal No. 21 of 1975.
(On appeal from the judgment and order of the High Court Division dated 22. 5. 75 passed in petition No. 1054 of 1974).
Mahmud Husain, CJ.
1. This appeal by special leave is against a judgment of a Bench of the High Court Division and it arises out of an application filed under Article 102 of the Constitution of the People's Republic of Bangladesh. Leave was granted" for interpretation of Articles 4 and 8 of President's Order No. 16 of 1972 (The Bangladesh Abandoned Property Control, Management and Disposal) Order, 1972, hereinafter referred to as the Order) on the following facts stated by the respondent No. 1 M/s. A. T. J. Industries Ltd. (hereinafter referred to as the Company). The paid up capital of the Company is Taka 2,75,000/CO held by the members of the family in shares as follows :
2. Mr. Sajjad Husain - 12,500 "
3. Mr. Saifuddin - 3,750 shares
4. Mr. Sabbir Husain - 2,500 "
These share-holders belonged to Dawoodi Bohra Community permanently residing at 43E, Cantonment Bazar Area, Dacca. The first named three shareholders were the Directors. Mrs. Batul Bai is wife of Mr. Sajjad Hossain and Sabbir Hossain is the son of Sajjad Hossain. Sajjad Hossain and Saifuddin are full brothers'. Respondent No. 2 Abbas Ali is the, nephew of Sajjad Hossain and Saifuddin. The Company is a private Limited Company. Petitioner No. 2 used to stay with the family and used to work in the interest of the factory of the Company at 158, Tejgaon Industrial Area. In 1971 wife of Sajjad Hossain fell ill and accordingly Sajjad Hossain with his wife left the country for her treatment. Saifuddin one of the Directors alone remained in the country althrough. Soon after the liberation, a delegation of Dawoodi Bohra Community of Dacca met the Acting President Syed Nazrul Islam and pledged their loyalty and allegiance to the Government of the People's Republic of Bangladesh.
2. The four shareholders originally migrated from India and domiciled in the then East Pakistan and are permanent residents and citizens of Bangladesh, although Mr. Sajjad Hossain and his family remained stranded in Pakistan due to the policy of the Pakistan Government and could not return despite willingness. The management of the Company was taken over by the Government on 31.-12. 71, when Mr. Saifuddin one of the Directors was present in Bangladesh and managing the affairs of the Company, by a notification which runs thus:-
No. 186-SL-31st December, 1971—In exercise of the authority given by the Acting President's Order No. Sec XI/IN/35/71/17, dated the 30th December, 1971, the Ministry of Industries is pleased to take over with immediate effect and until further orders, the management of the different industrial units mentioned in Groups 'A' to 'F' including all the properties and assets wherever located in Bangladesh, and to appoint the management Board indicated under each group to operate the Mills and generally conduct all their affairs, including operation of bank accounts: GROUP 'F' (II)—TEJGAON Industrial Area.
M/S. A. T. J. Industries Ltd. 158, Tejgaon, Industrial Area, Dacca......"
Representation was made to the Government for the release of the Company as it cannot be treated an abandonee property because all the shareholders were Bangladeshi nationals. The Government was pleased to release the Company pursuant to the following order:
"Government of the People's Republic of Bangladesh Ministry of Industries and Natural Resources, Bangladesh, Secretariate, Dacca.
No. IA (96) 72-242 dated 15. 2. 72.
As per Notification, No. 186-SI dated 31. 12; 71 the management of M/S. A. T. J. Industries Ltd., 158, Tejgaon Industrial Area, Dacca was taken over by the Government and was placed under the Management Board. It has now been decided, by the Government to release the unit in favour of its owner subject to future Govt. over all industrial policy. The owners are allowed to operate the unit including normal operation of Banking accounts.
Sd/- K. A. Zaman,
Secretary, Ministry of Industries.
Thereafter on 3. 3. 72 the management of the Company was directed to be handed over to Mr. Saifuddin, one of the Directors who was then in Bangladesh and was operating the Mill pursuant to the following order:-
"Government of the People's Republic of Bangladesh
Ministry of Industries & Natural Resources, 58, Dilkusha Commercial Area, Dacca.
IN CONTINUATION OF THIS Ministry's No. JA(98) 72-242 dated 15th February, 1972 the management of M/S. A. T. J. Industries Ltd., 158 Tejgaon Industrial Area, Dacca may be handed over to Mr. Saifuddin, Director of M/s. A. T. J. Industries Ltd., 158 Tejgaon Industrial Area, Dacca who is now available in Bangladesh to operate the Mill, with immediate effect.
Sd/- M. A. Rahim Mia
For Secretary, Ministry of Industries
And Mr. Saifuddin Ahmed accordingly took over the management of the Company of 3. 3. 72 On 14. 4. 72 Mr. Saifuddin appointed respondent No. 2 to supervise and manage the business of the Company and in September 1972 Sajjad Hossain and his wife executed a general power of attorney appointing the said respondent No. 2 as their lawful attorney to manage the Company. Sajjad Hossain and the members of his family were in Karachi and affirmed affidavits before the Notary public in Karachi declaring that they were citizens of Bangladesh and owed allegiance to the Government of the People's Republic of Bangladesh. Son miscreants entered the premises of the Company on 28th May, 1972 and took away- the proceeds amounting to Taka 54,451/CO and kidnapped Mr. Saifuddin, the Director of the Company. Mr. Saifuddin has remained untraced till today. Respondent No. 2 got co-operation from the Jatiya Sramik League which issued a certificate allowing him to resume the duties as General Manager of the Company. This respondent No. 2 acted as General Manager and appeared before the Customs Authority who were satisfied by the letter of authority issued by Saifuddin on 14. 4. 72 and the affidavit dated 4. 7. 72 and thus passed an order whereby clearance of the Company was allowed by the Excise Officer in the signature of Mr. Abbas AH until otherwise directed pursuant to an order issued by Assistant Collector of Customs and Excise. Criminal Case was instituted under section 364/380/ 120-B of the Bangladesh Penal Cede and under P. O. No. 50 of 1972 and Abu Mar, an employee of the Company was arrested and was subsequently enlarged on bail. While the respondent No. 2 was continuing in possession a notification was issued on 11.10.1 972 whereby all the assets of the Company were taken over by the Government. The Notification is as follows:-
"GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH MINISTRY OF INDUSTRIES (INDUSTRIES DIVISION)
No. IR-XV-15/74 dated 11. 10. 72
In pursuance of powers under Articles 4 and 5 (2)(a)(b) of the Bangladesh Abandoned Properly (Control) Management and Disposal order 1972 and the rules made thereunder, the Ministry of Industries is pleased to take over with remediate effect and until further orders M/s. A. T. J. Industries Limited, 158, Tejgaon Industrial Aiea, Dacca including all its properties and assets are to authorise Mr. Abu Zafar, Manager of unit to run it. He shall operate the Mills and generally conduct all its affairs including operation of Bank Accounts subject to the control and supervision of the Division management Board, Dacca City and adjoining area.
Sd/- M. S. Islam
No. IR-XV-15/72041(7) dated 11. 10. 72 Copy forwarded for information and necessary action to:-
1. Mr. Abu Zafar, Manager of M/S. A. T. J. Industries Ltd.
158, Tejgaon Industrial Area, Dacca. He is requested to submit a report to this Ministry at an early date on the action in light of the above order 5. He is further requested to submit regular weekly reports to this Ministry on the prescribed proforma.
2. The Commissioner, Dacca Division and Chairman, Divisional Management Board, Dacca.
3. M/S. A. T. J. Industries, 158, Tejgaon Industrial Area, Dacca.
4. The Director-General, Industries Department, 58 Dilkusha Commercial Area, Dacca with reference to this Memo No. IPB /2319, dated 31. 8. 72.
5. O. S. D. Government Printing Press, Tejgaon, Dacca with a request to publish it in the next issue of the Gazette.
6. Master file.
Sd/-A.F.M. Noorul Islam
11. 10. 72.
The said Abu Jafar took over the management of the Company from respondent No. 2 on 18. 10. 72. Thereafter several represent aliens were made to the Government giving all necessary details and copies of the documents in support of ownership and management of the Company but with no result. The Government being satisfied that Mr. Sajjad Hossain is a Bangladeshi national allowed his representation dated 18. 5. 73 by an order dated 14th June, 1973 and thereafter Mr. Sajjad Hossain over to Bangladesh on a passport issued to him on 5th January, 1975 by the Bangladesh Embassy in Kabul.
3. On 25. 8. 74 there was a notification in the Newspaper vide Annexure 'S' to the petition before the High Court Ber.ch for sale of the assets of the Company. The respondent No. 1 prayed for declaration, that the notification dated 11. 10. 72 is illegal and was passed without any lawful authority and for an order restraining the Government from selling the assets of the Company. On consideration of the affidavits filed by parties, the High Court Division upheld the contention of the respondent No. 1.
4. The facts stated are not disputed. The only question that requires consideration is whether the Company is an "abandoned property" within the meaning of Article 2(1) of the Order which runs thus :-
(1) "abandoned properly" means any property owned by any person who is not present in Bangladesh or whose whereabouts are not known or who has ceased to occupy, supervise or manage in his property including:
(i) any property owned by any person who is a citizen of State which at any time after the 25th day of March, 1971, was at war with or engaged in military operations against the People's Republic of Bangladesh.
(ii) any properly taken over under the Bangladesh (Taking over of Control and Management of Industrial and Commercial Concerns) Order, 1972 (Acting president's Order No. 1 of 1972), but does not include—
(a) any property the owner of which is residing outside Bangladesh for any purpose which, in the opinion of the Government, is not prejudicial to the interest of Bangladesh;
(b) any property which is in the possession or under the control of the Government under any law for the time being in force."
5. The learned Attorney-General for the Government-Appellant has contended that the learned Judges of the High Court Division misconstrued the provisions of Articles 4 and 8 of the Order. His main attack is that the learned Judges were wrong in holding that the formation of the opinion of the Government and show cause notice on the owner are necessary before taking over the assets of the company as abandoned property under the Presidential Order.
6. The questions involved in the interpretation of Articles 2(1) and 4 may be divided into three heads. First is, what on true contraction of the Article 2(1) is the meaning of 'abandoned property'. Secondly, whether formation of the opinion of the Government is necessary for holding or declaring a property an abandoned properly and its vesting under Article 4: thirdly, whether prior show cause notice is mandatory before the opinion of the Government is formed.
7. On the first question, a reference to the language of Article 2(1) set out above indicates that the language is not free from ambiguity. It appears that the legislative authority has employed multiple system in the definition. It has first defined with denotation and connotation the words 'abandoned property' and then has employed an inclusive definition, and then an exclusion clause. It has also added an explanation. Interpretation of the definition of clause no doubt creates some complexity. The best way to interpret it is to give a harmonious meaning to all the clauses of Article 2(1) so that each clause gets its own meaning and at the same time harmonises with the meaning of the whole. The defining part denotes property owned by a person who is either not present in Bangladesh, or whose whereabouts are not known, or who has ceased to occupy, supervise or manage in person his property. A question may arise whether the three sub-clauses are disjunctive or conjunctive. We think they have been used disjunctively and there is no need to construe them conjunctively.
8. Then comes the inclusive definition. In the inclusive definition is included two categories of properly, first is the property owned by a person who is a citizen of a State which after 25th day of March, 1971 either is at war or engaged in military operation against Bangladesh; the second is the property taken over by the Government under Acting President's Order No. 1 of 1971. So far as the inclusion clause is concerned both the categories of properties come within the meaning of the definition of 'abandoned property'.
9. Then is the exclusion clause. The first question, which arises, is whether the exclusion clause also qualifies the inclusion clause. Except for the fact that the exclusion clause follows the inclusion cause, there is nothing in the grammatical construction of the whole clause to indicate that it qualifies the inclusion clause. Exclusion clause contemplates two categories of property. The first is the property the owner of which is residing outside Bangladesh for any purpose which in the opinion of the Government is not prejudicial to the interest of Bangladesh. The second is the property which is in possession or under the control of-the Government under any law in force for the time being. The second part of this exclusion clause needs, no classification for the purpose of this appeal. The first part of the exclusion clause is not only an exception but it qualifies the definition clause and this qualification is such that it is implicit with the definition and an integral part of it. Definition clause cannot be conceived without this implicit qualification. What then is the qualification? The sub-clause says that if the residence of the owner of a property outside Bangladesh is in the opinion of the Government for a purpose not prejudicial to the interest of the State, then the property is not an abandoned property. In this sub-clause, the condition is such that the operation of the definition clause will come into effect only when the Government has formed its opinion. The definition clause with inclusion and exclusion clauses have been so framed that we do not find any other reasonable construction to bestow on entire clause of Article 2(1) than we have given. On the formation of opinion of the Government the definition clause comes into operation, but once opinion has been formed the law takes effect from 28. 2. 72, the day President's Order No. 16 of 1972 was promulgated. The Government is to form its opinion on the events as they stood on 28. 2. 72.
10. An explanation has been appended regarding any person who is not present in Bangladesh. The explanation clarifies by saying that person induces both natural and juristic person.
11. Turning to the second question, we find that the construction of Article 2(1) reviles" that formation of opinion by the Government is implicit in the determination of a properly as an abandoned property-coming within the definition clause, no doubt this determination is only an ascertainment of fact constituting a properly an abandoned property, and en such preliminary ascertainment of fact the law takes effect of it's own force from 28. 2. 72. The date the older came into force. On such formation of opinion of the Government after ascertainment of fact, the property as abandoned property vests in the Government under Article 4, subject to the provisions of other articles of the Presidential Order. Preliminary formation of opinion of the Government is, however, not necessary for the properties coming within the ambit of the two categories included in the inclusion clause. Mr. Attorney-General's contention that no formation of opinion by the Government is necessary under Article 2(1) for coming into operation of the definition clause under Article 4 cannot be sustained. The High Court Division is correct in this part of its finding.
12. We can now turn to the third question as to whether prior show cause notice is necessary before the opinion of the Government is formed. It is to be remembered that principles of natural justice is not attracted for preliminary determination. A glance at different provisions of the Presidential Order No. 16 of 1972 shows that it has statutorily provided justice rule. Articles 7, 15 and 16 amongst others provide ample provisions for notice and opportunity to show cause to the affected person to establish his case. Where justice rule has been statutorily provided, principles of natural justice does not apply as in such event it becomes redundant. The High Court Division's opinion that prior show cause notice is necessary before the Government is to form its opinion under Article 2(1) cannot be sustained because of the reasons stated herein before, and also because of factual impossibility of serving show cause notice en absent person of unknown whereabouts.
13. We now turn to the question of Article 8. Mr. Attorney-General endeavoured to argue that the Government in substance has purported to act under this Article, whereas the Counsel for the respondent contends that the Government has not mentioned Article 8 at all in the impugned notifications, nor are the facts attracted to this Article. He contends that Government purported to act under article 5, treating the assets of the Company vested under Article 4, but Article 5 is not attracted at all, as only some shares, if at all, have become abandoned property and not the assets 'of the company. We refer to Article 8 which runs thus:-
(a) the Government shall be deemed to be the registered holder of such shares and, notwithstanding anything in the memorandum or articles of association of the company or in any agreement or instrument, shall have the same rights in the matter of making a requisition for the convening of a meeting or of presenting a petition to the Court under the provisions of the Companies Act, 1973 (Act VII of 1913) or under any other law or under the Articles of Association or in any other matter as the person whose shares have vested in the Government had immediately before such vesting; and
(b) the Government shall have the power to acquire, at its opinion, all or a portion of the remaining shares in such company in the prescribed manner on such terms as it deems fit.
(2) Where under clause (1) the Government becomes the holder of more than fifty per cent of the total number of snares in the company, the Government 'may by cruder in writing,
(a) dissolve the Board of Directors of the company;
(b) remove its Managing Director or any other Director;
(c) dissolve its Managing Committee, Executive Committee, Advisory Committee or any other Committee or Board;
(d) remove its General Manager or other Manager;
(e) terminate any Managing Agency Agreement ;
(f) remove any of its officers or employees;
(g) constitute any Board or Committee or appoint any person for its administration and management: and
(h) give such directions in respect of it may deem fit.
(3) Notwithstanding anything contained in the memorandum or articles of association of a company, the Government may, in respect of a company mentioned in clause (2), by notification in the official Gazette, do all such things which, but for the power conferred by this clause, would have required the passing of a special or extraordinary restitution by the share-holders."
14. Whether the facts disclosed satisfy the requirements of this Article are to be seen. The notification under challenge is dated 11.10.72 and was issued pursuant to Articles 4 and 5(2) (a) (b) of the Order and the rules made thereunder. From the facts disclosed it is clear that the abandoned property consists of shares and, as such, by no stretch of imagination, Article B of the Order can be invoked and so the contention of the Counsel for the respondent prevails.
15. The learned Attorney-General however referring to the notification dated 11.10. 72 submits that although in the notification Article 5(2)(a)(b) of the Order is mentioned, but the order passed by the Government on the basis of which the notification was issued goes to show that the action was contemplated under Article 8 of the Order, and in this view of the matter, this misquotation of the Order in the notification should not be taken as fatal, rather it should be treated as one issued pursuant to Article 18 of the Order. It is an admitted fact that the Company is registered in Bangladesh. The two impugned notifications do not indicate that the shares of the Company were taken over. The notification simply mentioned the properties and the learned Judges of the High Court Division dealt with the matter and came to the conclusion that the Government never treated the properties comprising shares. There is nothing to show that the Government exercised the power to acquire the balance ten per cent of the shares of the Company which was admittedly held by a Bangladesh citizen at the time when the Company was purported to be taken over. In that view of the matter, the argument of the learned Attorney-General to treat the notification as one issued under Article 8 instead of Article 5(2)(a)(b) of the Order cannot be accepted. Since no action has been initiated as contemplated under Article 8 of the Order we find no reason to disturb the decision of the High Court Division.
Subject to the observation made above, the appeal is dismissed with no order as to costs.