Jamil Chowdhury Vs. Bangladesh and others 2016 (2) LNJ 272

Case No: Writ Petition No. 2130 of 2013

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Dr. A.K.M. Ali,Mr. Md. Zakir Hossain Ripon,Ms. Kazi Zinat Hoque,Ms. Fatema Begum,,

Citation: 2016 (2) LNJ 272

Case Year: 2016

Appellant: Jamil Chowdhury

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2016-07-25

Jamil Chowdhury Vs. Bangladesh and others 2016 (2) LNJ 272
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Shamim Hasnain, J
And
Mohammad Ullah, J
Judgment on
25.07.2016
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Jamil Chowdhury, President, Bangladesh Female Academy (BFA), Upazilla- Derai, District- Sunamganj
. . . Petitioner
- Versus -
The Government of Bangladesh represented by the Secretary, Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka-1000 and 8 (eight) others
... Respondents

Constitution of Bangladesh, 1972
Article 102
A D.O. Letter is an abbreviation of the term “demi official letter” generally used in corr-espondence between two entities the issuing person or authority and government or non-government officials for an interchange or communication of opinion or information without any formality of the prescribed procedure. This sort of communication has got no legal consequence i.e. the recipient of a D.O. Letter is not lawfully bound to act on the basis of such a letter. Being a public representative it would not be prudent for a member of parliament to seek demand or claim or a favour for any person or a particular group to the detriment of others in violation of prescribed laws of the land and the interest of the people in general. In the instant case it is seen that at the inception of the process of raising funds for accommodation for the Academy, the local Member of Parliament recommended for the same but at a later stage in the same transaction he issued a D.O. Letter to the government functionary against his initial stand requesting not to allocate any fund for construction of the Academy. The recipient of the D.O Letter may or may not honour the recommendation of the issuing person keeping in mind that the action or inaction is in accordance with prescribed law. Since no legal right of the petitioner has been infringed in the act of stoppage of the initiative, we find no reason to interfere with the impugned letter.    . . . (6 and 7)

Writ Petition No. 2130 of 2013.

 

Dr. A. K. M. Ali with
Ms. Fatema Begum, Advocates
...For the petitioner
Ms. Kazi Zinat Hoque, DAG with
Mr. Md. Zakir Hossain Ripon, AAG                          
...For the respondents
 
JUDGMENT

Mohammad Ullah, J: 
On an application under Article 102 of the Constitution, this Court issued the Rule in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the memo bearing No. শিমপ/ সিসপ্র-৩/বিএফএ /২২৬/ ২০১১-১৩ dated 09.01.2013 issued under the signature of the respondent no. 8 directing the respondent no. 2 not to take any steps regarding the program of constructing 150 seats accommodating class Room and 150 bed women’s hostel for Bangladesh Female Academy (BFA) situated within Upazilla-Derai, District-Sunamganj as evident from Annexure-F(1) to the writ petition and D.O. letter No. মঃকাঃ/ডিও(বিবিধ)-৪/১২/৬৫৫ dated 13.12.2012 issued by the respondent no. 9 requesting the concern Minister of Ministry of Education for taking appropriate steps for cancellation of allocation of fund in the name of Bangladesh Female Academy (BFA) situated within Upazilla-Derai, District-Sunamgnj as evident from Annexure-F to the writ petition  should not be declared to be have been passed without lawful authority and is of no legal effect and why the respondents should not be directed to allocate the fund for the project of Bangladesh Female Academy (BFA) and start construction and/or pass such other or further order or orders as to this Court may seem fit and proper.”
  1. The facts, for the purpose of disposal of the Rule as disclosed in the averments of the writ petition, are that the petitioner is the President Bangladesh Female Academy (the Academy), a registered non-profit organization which got registration from the Ministry of Social Welfare and from the NGO Bureau. The students of the Academy have been participating in different local and national sports and cultural events and secured various awards. The Academy was established in 2006 through the effort of the petitioner and support of the donors. Subsequently in order to build the infrastructure and accommodation facilities of the Academy, the petitioner made a representation to the concerned Ministry for allocation of funds whereupon the Cabinet Division issued a Memo on 07.02.2011 requesting to the Ministry of Education to initiate a proposal for construction of 150 seat class room and 150 seat hostel for the students. In this regard the Ministry of Education obtained an opinion from the Chief Engineer of the concerned department. Thereafter, the Chief Engineer prepared a program and forwarded it to the Ministry of Education. It has been stated that while the matter was pending before the Ministry of Finance for approval of the allocation of funds, the petitioner came to know that the local Member of Parliament, the respondent no. 9 who initially supported the proposal of the petitioner, issued a D.O. Letter to the Minister, Ministry of Education requesting him for cancellation of allocation of funds for construction of the Academy. The petitioner apprehends that on the basis of such D.O. Letter, the Ministry of Education directed the Finance Division not to allocate the fund. When the initiative was stopped the petitioner served a legal notice upon the respondents requesting them to take effective steps for construction of the Academy, but without any result; hence the writ petition and the Rule issued therein.
  2. Dr. A.K.M. Ali, learned advocate appearing for the petitioner, submits that the respondent no. 9 being the local Member of Parliament had no legal authority to issue D.O. Letter to the Ministry of Education requesting them to stop the proposal for construction of the building in order to construct the facilities for accommodation of the Academy. The learned advocate submits further that the process of construction of the Academy building or allocation of funds thereof cannot be canceled on the basis of a D.O. Letter issued the respondent no. 9. The learned advocate seeks a direction upon the respondents for allocation of funds for construction of the Academy building.
  3. Ms. Kazi Zinat Hoque, learned Deputy Attorney General being without instruction could not assist us, however she verbally opposes the Rule.
  4. It appears that at the instance of the petitioner an initiative for financing the accommodation of the Academy had been taken by the Ministry of Education. Although the local Member of Parliament had recommended in favour of the Academy at the inception of the process he raised an objection against it later on and wrote a letter to the Ministry of Education requesting not to allocate funds in favour of the Academy. It is apparent from the impugned letter dated 09.01.2013 (Annexure-‘G-2’) that the Ministry of Education requested the Secretary, Ministry of Finance Division not to take further initiative  with regard  to the construction of the Academy building on the basis of the D.O. Letter of the local Member of Parliament.
  5. It has repeatedly come to our notice and particularly in writ matters that certain Members of Parliament have often been requesting/ recommending the concerned government authorities and autonomous bodies upon issuing demi-official letters for certain benefits/ favours including grant of lease of property to a  certain individual or group, appointment of  particular persons in the posts of Presidents or Members of the Managing Committees of recognized educational institutions or for approval or disapproval of such Managing Committee etc. or even interfering with certain processes initiated for certain purposes. We therefore, deem it necessary to dwell into the legal consequence of such letter popularly known as D.O letters. A D.O. Letter is an abbreviation of the term “demi official letter” generally used in correspondence between two entities the issuing person or authority and government or non-government officials for an interchange or communication of opinion or information without any formality of the prescribed procedure. This sort of communication has got no legal consequence i.e. the recipient of a D.O. Letter is not lawfully bound to act on the basis of such a letter. However, a Member of Parliament or any other person may issue a D.O. Letter with a specific request or recommendation without hampering, curtailing or infringing any statutory right or public policy. Being a public representative it would not be prudent for a member of parliament to seek demand or claim or a favour for any person or a particular group to the detriment of others in violation of prescribed laws of the land and the interest of the people in general. In the instant case it is seen that at the inception of the process of raising funds for accommodation for the Academy, the local Member of Parliament recommended for the same but at a later stage in the same transaction he issued a D.O. Letter to the government functionary against his initial stand requesting not to allocate any fund for construction of the Academy. We refrain from making any comment about the conduct of the respondent no. 9 inasmuch as it does not involve question of law but of ethic. The recipient of the D.O Letter may or may not honour the recommendation of the issuing person keeping in mind that the action or inaction is in accordance with prescribed law.
  6. With regard to the contention of the petitioner that his legal rights have been infringed by the issuance of the impugned letter it appears that neither any fund has been allocated for construction of the accommo-dation of the Academy nor any plan was taken for the said purpose in the respective fiscal year under public or a private scheme. In other words, the government has not made its estimates for financing of the Academy. The petitioner having not acquired any vested right in such process of the government for financing the Academy cannot invoke the writ jurisdiction to establish his claim in any manner. Since no legal right of the petitioner has been infringed in the act of stoppage of the initiative, we find no reason to interfere with the impugned letter.
  7. Accordingly, the Rule is discharged.
However, on the facts and circumstances of the issue, we do not see any impediment for further initiatives for allocation of funds in a subsequent fiscal year as had been taken by the government for construction of infrastructure and accommodate facilities of the Academy in question.
Ed.