Governor, Bangladesh Bank Vs. M. Habibullah Bahar and another, IV ADC (2007) 51

Case No: Civil Appeal No. 258 of 2001

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Dr. Rafiqur Rahman,,

Citation: IV ADC (2007) 51

Case Year: 2007

Appellant: Governor, Bangladesh Bank

Respondent: M. Habibullah Bahar and another

Subject: Banking,

Delivery Date: 2006-07-06

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Syed J.R. Mudassir Husain, CJ.
M.M. Ruhul Amin, J.
Amirul Kabir Chowdhury, J.
 
The Governor, Bangladesh Bank, Head Office, Dhaka
…………..Appellant
Vs
M. Habibullah Bahar and another
…………..Respondents
 
Judgment
July 6, 2006.
 
The Bank Companies Act, 1991
Section 31
Bank Companies Ordinance, 1962
Section 27
Shundarban Bank International Ltd. (proposed) challenging legality of the wherein it was observed that the Shundarban Bank International Ltd. (proposed) failed to reach the stage of eligibility for filling application for issuance of licence to start banking business. ……. (2)
 
Article 27 of the Constitution inasmuch as the right guaranteed under Article 27 of the constitution that all citizens are equal before the law and are entitled to equal protection of the law should not be interpreted its absolute sense to hold that all citizens are equal in all aspects disregarding different conditions and circumstances and as a matter of fact Article 27 of the Constitution means that all persons are not equal in all respects and that persons similarly situated should be treated alike and in the instant case Sundarban Bank International Ltd. (proposed) and other two banks AL-Baraka Bank Ltd. And t he Bank of Small Industries and Commerce Ltd. are not on the same footing, Sundarban Bank International Ltd. ……(5)
 
Lawyers Involved:
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-Record-For the Appellant.
Rokanuddin Mahmud, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No. 1.
Not represented-For the Respondent No. 2.
 
Civil Appeal No. 258 of 2001
(From the judgment and order dated 16.11.2000 passed by the High Court Division in Writ Petition No. 1672 of 1995)
 
JUDGMENT
M. M. Ruhul Amin J:
 
         This appeal by leave is directed against the judgment and order dated 16.11.2000 passed by a Division Bench of the High Court Division in Writ Petition No. 1672 of 1995 making the Rule absolute.
 
2.         The writ petition was filed by Mr. M. Habibullah Bahar, the main Sponsor/ Chairman of Sundarban Bank International Ltd. (Proposed) challenging legality of the Memo No. BCD (P) 744/20-2074/91 dated 22nd December 1999, of the Bangladesh Bank (Annexure-Q to the writ petition) wherein it was observed that the Sundarban Bank International Ltd. (Proposed) failed to reach the stage of eligibility for filing application for issuance of licence to start banking business.
 
3.         The case of the writ petitioner is that on 12.11.1991 he filed an application to the Ministry of Finance praying for issuing per­mission to start the banking business of the proposed Sundarban Bank International Ltd. and on receipt of the said application the Ministry of Finance sought opinion of the Bangladesh Bank and the Bangladesh Bank's opinion that at no stage the said Bank reached the stage of seeking permission for issuance of license to start the Banking business of the proposed bank. The writ petitioner challenged this opinion of the Bangladesh Bank in the writ petition.
 
4.         Writ-Respondent No.2, herein appellant, opposed the Rule, on several grounds.
 
5.         The High Court Division upon hearing made the Rule absolute and declared the impugned memo that is Annexure-Q to the writ petition illegal and without jurisdiction and further directed the respondent No. 2 and another to allow Sundarban Bank International Ltd. (Proposed) to complete all formalities as per memos dated 26.01.1982 and 10.02.1983 (Annexures-E and G to the writ petition) within 6(six) months from date so that Sundarban Bank International Ltd. (Proposed) can apply to the Bangladesh Bank for license to commence its banking business.
 
6.         Leave was granted to consider the submission that the declaration sought for is the dec­laration relating to a Memo sent by the Bangladesh Bank to the Ministry of Finance in reply to a letter sent to Bangladesh Bank making certain queries and this being an inter­nal communication made in the process of reaching decision un-communicated to the writ petitioner, it did not create any legal right in his favour and as such the writ petition on its face was without legal foundation. The learned Judges of the High Court Division have erred in law in making the Rule absolute reviewing the earlier judgment of the High Court Division on the ground that the High Court Division in the earlier judgment did not take into consideration two internal notes marked as Annexure-Q-1 and Annexure x-1 to the writ petition inasmuch as note No. 140 is merely an office note by a subordinate offi­cer to be placed before the authority con­cerned and the last note No. 147 which is also not the final order inasmuch as it shows that the same was placed for consideration to the higher authority and the submission that the learned Judges have committed serious error of law in making the Rule absolute relying on internal incomplete and inconclusive notes of subordinate officers not approved by the prop­er -authority and the further submission that the learned Judges of the High Court Division erred in law in not holding that the review petition was barred by limitation and the sub­mission that the learned Judges of the High Court Division erred in law in holding that refusal to extend time to the writ petitioner is violation of fundamental rights guaranteed under Article 27 of the Constitution inasmuch as the right guaranteed under Article 27 of the Constitution that all citizens are equal before the law and are entitled to equal protection of the law should not be interpreted its absolute sense to hold that all citizens are equal in all aspects disregarding different conditions and circumstances and as a matter of fact Article 27 of the Constitution means that all persons are not equal in all respects and that persons similarly situated should be treated alike and in the instant case Sundarban Bank International Ltd. (Proposed) an other two banks Al-Baraka Bank Ltd. and the Bank of Small Industries and Commerce Ltd. are not on the same footing, Sundarban Bank International Ltd. (Proposed) being a Private Limited Commercial Bank and other two banks being banks with special objects and purposes and as such there has not been any violation of the fundamental rights guaranteed under Article 27 of the Constitution and the further submission that the writ petitioner having failed to show any statutory founda­tion of his claim and having failed to fulfil the conditions precedent to file an application for license under section 31 of the Bank Companies Act, 1991, the learned Judges of the High Court Division have erred in law in giving the impugned direction to the appel­lant, and the last submission that the Bangladesh Bank is a Statutory Body which can sue and be sued in its own name and its management is vested in the Board of Directors and the Governor is an appointee of the Government and holds office for a fixed term. Therefore, the writ petition is bad for defect of parties for having not impleaded Bangladesh Bank as a respondent but the High Court Division ignored this vital aspect of matter and committed error of law.
 
7.         We have heard Dr. Rafiqur Rahman, the learned Counsel for the appellant and Mr. Rokanuddin Mahmud, the learned Counsel for respondent No.1 and perused the judgment of the High Court Division and other connect­ed papers.
 
8.         The writ petition was earlier heard by a Division5 Bench of the High Court Division presided by Kazi Ebadul Hoque, J. and dis­posed  of by judgment  and  order  dated 26.07.1999 discharging the Rule on the find­ing that the writ petitioner failed to comply with the formalities  are required by  the Bangladesh  Bank in  its letter dated 26.01.1982 and license is  granted by Bangladesh Bank under section 31 of the Bank Companies Act,1991 which is same as section 27 after of Bank Companies Ordinance 1962. Therefore, the Review Application No.3 of 2000 was filed before another Division Bench presided by Mohammad Gholam Rabbani J. and there was delay of 191 days in filing the review application. It appears that in the Review Application Rule was issued calling upon the respondents to show cause as to why the delay of 191 days in filing the review application should not be condoned. It appears that the delay matter was heard in presence of learned Advocate for the applicant and Mr. Syed Mahmud Hossain, the learned D. A. G. for Bangladesh Bank and the delay in filing the review application was condoned.
 
9.         It is on record that the time of hearing of the main rule by the earlier Bench, Dr. Rafiqur Rahman appeared for respondent No.2 but at the time of hearing of condonation of delay matter the learned D.A.G. appeared. There is nothing on record to show that the learned D.A.G. was specially authorized by Bangladesh Bank to appear in the matter for the Bank. However, after condemnation of delay another Rule was issued upon the respondent to show cause as to why the earli­er judgment dated 26.07.1999 discharging the Rule should not be reviewed and by the impugned judgment and order dated 16.11.2000 the review application was allowed and the earlier judgment dated 26.07.1999 was set aside and the impugned memo dated 22.12.1999 of the Bangladesh Bank was declared to have been passed with­out lawful authority and the respondents were directed to allow Sundarban Bank International Ltd. (Proposed) to completely all formalities within 6(six) months from date so that Sundarban Bank International Ltd. (Proposed) can apply for license to the Bangladesh Bank to commence its banking business.
 
10.       It appears that review was allowed mainly on the ground that at the time of discharging the Rule by the earlier Bench, the relevant file of the Ministry of Finance at note No.140 Annexure Q-1 to the writ petition and annexure-X-1 to the writ petition at note No.2.1.1 could not be brought to the notice of the Court and upon consideration of these two notes of the note sheet, the later Bench of the High Court Division allowed the Review applica­tion and made the Rule absolute.
 
11.       We have already found that Annexure-Q-1 is a note of the note sheet at serial No.140 written by a subordinate officer to be placed before the proper authority for approval. The Note Sheet shows that this note was not ulti­mately approved by the authority concerned and this position was admitted. Therefore, the note at Note No. 140 Annexure-Q-1 to the writ petition written by a Subordinate Officer having not been approved by the concerned authority is of no value although the learned Counsel for the Respondent laid special emphasis on this note and the High Court Division also relied heavily on this note in the impugned judgment. Annexure-X-1 is a report by the committee headed by Governor of Bangladesh Bank for examining the subject regarding establishment of banks in the pri­vate sector. It appears that in this report the committee made certain recommendations for consideration of applications for establish­ment of 5(five) new banks, namely, 1. Century Bank Limited 2. Mercantile Bank International Limited, 3. Premier Bank Limited, 4. Natun Bangla Commercial Bank Limited and 5. Mutual Trust Bank Limited. The committee also made some other recom­mendations in this connection. We fail to understand how this report Annexure-X-1 helps the respondent. In this connection the learned Advocate for the Respondent has referred to paragraph 26 of the review appli­cation and submitted in this report Annexure-X-1, the City Bank Limited was permitted to start operation on 23.03.1983 and IFIC Bank to start operation on 24.06.1983 and the oper­ation of business of these two bank was in violation of para-3 and 4 of the council com­mittee decision held on 21.01.1982 vide Annexure-D to the writ petition although there was a rider clause to the effect that these banks should be asked to start operation by 01.03.1982 positively failing which the per­mission will be cancelled but in the case of the writ petitioner there was no rider clause for cancellation but still the writ petitioner was not allowed time to complete formalities. It should be remembered that these two banks had already completed all formalities and obtained licensee but could not start banking business within the time allowed and time for a short period was allowed for commence­ment of banking business. The respondent on the other hand did not complete formalities in order to be eligible to apply for license to the Bangladesh Bank although sufficient time was allowed for the purpose. As such the respondent bank does not stand on the same footing with the above mentioned two banks. So the question of discrimination as argued by the learned Counsel for respondent No.1 does not arise.
 
12.       We have already pointed out that Annexure-Q-1 (Note at Serial No.140) is an unapproved note written by a subordinate officer and as such it has no value and it does not help the writ petitioner in any way. We have also pointed out that in Annexure X-1, the Committee recommended for extension of time for commencement of banking business of two Banks and we have already held that the case of the writ petitioner does not stand on the same footing inasmuch as the writ peti­tioner did not complete the formalities to be eligible to apply for license to the Bangladesh Bank to start banking business and as such the writ petitioner being not on the same footing no discrimination has been made.
 
13.       It is not disputed that the council commit­tee lastly extended time to the writ petitioner up to 30.06.1983 to complete formalities to be eligible to apply for license to the Bangladesh Bank and it was also decided by the Council Committee in the same meeting that no fur­ther extension of time would be allowed for the purpose. It is also undisputed that the writ petitioner did not complete the required for­malities within time fixed (30.06.1983). The learned counsel for the Respondent submits that the decision of the Council Committee in this regard was forwarded to writ petitioner by the Bangladesh Bank at his Dhaka address where as at the relevant time he was staying in Saudi Arabia in connection with his business and as such he could not complete formalities as required by the authority.
 
14.       The rule was issued at the instance of the writ petitioner calling upon the respondents to show cause as to why the impugned order passed by respondent No.2 on 22.12.1991 as contained in Annexure-Q should not be declared to have been passed without any law­ful authority and is of no legal effect and why respondent No. 2 should not be directed to accord permission to the writ petitioner for completion of formalities to start the bank as well as for operating the banking business. As we have already pointed out that the impugned Annexure-Q is a letter dated 22.12.1991 written by Bangladesh Bank, Head Office to a Joint Secretary, Ministry of Finance, Government of Bangladesh in reply to their letter dated 04.12.1991 Annexure-O to the writ petition making some queries to the Bangladesh Bank regarding issuance of clear­ance certificate to the progressed Sundarban Bank International Ltd. to start banking busi­ness under Bank Companies Act, 1991, Accordingly vide Annexure-Q, (the impugned Annexure in the writ petition) the Bangladesh Bank informed that under section 31(1) of the Banking Companies Act, 1991 the power of issuing license to start banking business lies with the Bangladesh Bank and section 27(1) of the Banking Companies Ordinance, 1962 contained similar provisions. Bangladesh Bank further opined that the decision for establishment of new banks in the private sec­tor is to be taken by the Cabinet Committee. In that letter the Bangladesh Bank further informed the Ministry of Finance that on 02.01.1982 the Cabinet Committee in its meeting in principle decided to permit this new bank to been established in the private sector and accordingly on 06.01.1982 letter of intent was issued in favour of Proposed Sundarban Bank International Ltd. requiring it to complete formalities to be eligible to apply for license within 6(six) months. Later on, the time limit to complete formalities was extended up to 30.6.1983 by the Cabinet Committee. The Cabinet Committee further decided in the same meeting that there shall be no further extension of time limit to com­plete formalities by the writ petitioner. The Bangladesh Bank accordingly informed that the Proposed Sundarban Bank International Ltd. did not reach the stage at any time for applying for license to commence banking business. This letter was neither addressed to the writ petitioner nor a copy of the same was endorsed to him and it is also not an order rather it was a reply made in compliance with the query made by the Ministry of Finance by Annexure-O to the writ petition as referred to earlier. Moreover, the impugned Annexure-Q being a reply by the Bangladesh Bank in reply to query made by the Ministry of Finance and un-communicated to the writ petitioner in the process of reaching decision in the matter, it did not create any legal right in favour of the writ petitioner.
 
15.       The learned Counsel for the respondent No.1 tried to argue that by this Annexure-Q the Bangladesh Bank practically refused extension of time of the writ petitioner to complete formalities. We are unable to accept this submission as it is an internal communi­cation between Bangladesh Bank and the Ministry of Finance in reply to certain queries made by Ministry of Finance to the Bangladesh Bank and granting of permission is not the function of Bangladesh Bank rather this is absolute function of the Council Committee of the Ministry of Cabinet Affairs of the Government.
 
16.       Therefore, in the facts and circumstances of the case and in the light of the discussion made above, we are of the view that the High Court Division allowed the review application without properly considering Annexures Q-1 an unapproved note of a subordinate officer and X-1, a report of a committee, in their proper perspective and as such the appeal must succeed.
 
17.       The appeal is accordingly allowed with­out any order as to costs. The respondent No.1 may however approach the authority con­cerned for extension of time limit for comple­tion of formalities and the concerned authori­ty may consider the prayer in accordance with law if found tenable in law.
 
Ed.