Case No: Writ Petition No. 908 of 2003
Judge: Tariq ul Hakim,
Court: High Court Division,,
Advocate: Mr. Moinuddin,Md. Shafiqul Islam Siddique,,
Citation: 59 DLR (2007) 448
Case Year: 2007
Appellant: Masudur Rahman
Respondent: Secretary, Ministry of Law, Justice & parliamentary Affairs & others
Subject: Property Law,
Delivery Date: 2003-10-27
59 DLR (2007) 448
High Court Division
(Special Original Jurisdiction)
Syed M Hossain J
Secretary, Ministry of Law, Justice & parliamentary Affairs & others.....Respondents
October 27, 2003.
Muslim Marriages and Divorces Registration Act, 1974
Muslim Marriages and Divorces Registration Rules, 1975
Rules 5 & 8(2) & (4)
Moinuddin with Mosharraf Hossain Sarder, Nizamul Islam, Advocates—For the Petitioner.
Md. Shafiqul Islam Siddique for Md. Raushan Ali, Advocate—For Respondent No. 4.
Writ Petition No. 908 of 2003.
Tariq-ul-Hakim J.- Rule Nisi under Article 102 of the Constitution of the People's Republic of Bangladesh was issued calling upon the respondents to show cause as to why the impugned order dated 5-1-2003 passed by the respondent No. 2 vide Memo No. 23 Judiciary 7/2N-39/94 (Annexure-F) and the impugned order dated 8-1-2003 passed by the respondent No. 3 vide Memo No. 20 (Annexure-G) cancelling the appointment of the petitioner as Nikah Registrar of Ward No. 8 of Noakhali Municipality under Police Station and District Noakhali should not be declared to have been passed without any lawful authority and is of no legal effect.
2. It is stated in the Writ Petition that the petitioner was appointed to the post of Nikah Registrar for Ward No. 8 of Noakhali Municipality vide Memo No. 813(5) dated 14-12-2002 by respondent No. 3 as per order dated 28-11-2002 Memo No. 1297 Bic-har-7/2N-39/94 (Angsha) Annexure-D) passed by the respondent No. 2 and thereafter continued to work as Nikah Registrar for the said area. Subsequently, as per direction of respondent No. 2 vide Memo No. 23/Judiciary-7/2N-39/94 dated 5-1-2003 (Annexure-F) the respondent No. 3 cancelled the appointment of the petitioner as Nikah Registrar for Ward No. 8 and appointed the respondent No. 4 as Nikah Registrar for the said Ward vide impugned order Memo No. 20 dated 8-1-2003 (Annexure-G).
3. Being aggrieved thereby the petitioner has come to this Court and obtained the instant Rule and ad-interim order staying the aforesaid impugned orders.
4. Respondent No. 4 is contesting this Rule by filing Vokalatnama and an application for vacating the order of stay contending, inter alia, that the petitioner obtained appointment as Nikah Registrar by-furnishing false and fraudulent statements of fact and by actively conniving with the concerned officials of the Ministry of Law, Justice and Parliamentary Affairs to open a part file on the matter by suppressing material facts. It is further stated that subsequently when this matter was brought to the notice of the Hon'ble Minister for Law, Justice and Parliamentary Affairs, he ordered that the appointment of respondent No. 4 as Nikah Registrar of Ward Nos. 7, 8 and 9 be restored and the appointment of the petitioner as Nikah Registrar of Ward No. 8 be cancelled.
5. No Affidavit-in-Opposition has been filed by respondent Nos. 1 to 3 but Ms Farah Mahbub, the learned Assistant Attorney-General, opposes the Rule.
6. Mr. Moinuddin, the learned Advocate for the petitioner, submits that while the petitioner was performing his responsibility as Nikah Registrar of Ward No. 8 of Noakhali Municipality there was no allegation against him and all of a sudden, most arbitrarily, without serving any prior show cause notice, the respondents issued the impugned orders canceling his appointment as Nikah Registrar and the same is not sustainable in law. In support of his submission, he relies on an unreported decision in Writ Petition No. 1803 of2000 passed by a Division Bench of this Court wherein it has been held that a show cause notice is mandatory before cancellation of licence of a Nikah Registrar irrespective of whether he has been appointed permanently or temporarily.
7. Mr. Md. Roushan Ali, the learned Advocate for the respondent No. 4, submits that no show cause notice is required to cancel the appointment of the petitioner since it was for a purely temporary period and submits that the respondent No. 4 was legally restored to his earlier position as Nikah Registrar of Ward Nos. 7, 8 and 9 of the said Municipality from where he was removed illegally.
8. Heard the learned Advocate of all the sides, perused the Writ Petition, application for vacating the order of stay and Annexures along with the original file No. Bicher-7/2N-39/94 maintained by the Ministry of Law, Justice and Parliamentary Affairs. It appears that the petitioner was appointed as Nikah Registrar for Ward No. 8 of Noakhali Municipality by the District Registrar, Noakhali (respondent No. 3) by letter dated 14-12-2002. The subsequent impugned orders were issued cancelling his appointment as Nikah Registrar for the only area where he was performing his function and the respondent No, 4 was appointed as Nikah Registrar for Ward Nos. 7, 8 and 9 of said Municipality. Section 11 of the Muslim Marriages and Divorces (Registration) Act, 1974 provides as follows:
"Section 11. Revocation or Suspension of a Licence.— If the Government is of the opinion that a Nikah Registrar guilty of any misconduct in the discharge of his duties or has become unfit or physically incapable to discharge his duties, it may by order in writing, revoke his licence for such period, not exceeding two years as may be specified in the order:
Provided that no such order shall be made unless the Nikah Registrar has been given a reasonable opportunity of showing cause why that order should not be made."
9. Rule 8(2) of the Muslim Marriages and Divorces (Registration) Rules, 1975 also provides:
"Where a licence granted under rule 8(4) is to be revoked or suspended, the government shall issue a notice calling upon the Nikah Registrar concerned to show cause in writing within a specified time, why the proposed actions shall not be taken. The notice shall contain the allegation against the Nikah Registrar."
It appears that Rule 8(2) of the Muslim Marriages and Divorces (Registration) Rules, 1975 and section 11 of the Act require giving the aggrieved person a show cause notice prior to revoking or canceling his licence.
10. A person is temporarily appointed a Nikah Registrar to enable the District Registrar to complete the formalities required under Rule 5 of the aforesaid Rules. Thus a temporarily appointed Nikah Registrar can have a legitimate expectation to continue in that post until a permanent Nikah Register is appointed. It follows that a temporary Nikah Registrar cannot be replaced by another temporary Nikah Registrar without proper cause. Consequently, he is entitled to a prior show cause notice and an opportunity of being heard if his temporary licence is to be cancelled before appointment of a permanent Nikah Registrar.
11. In Abdur Rahman Ansari vs. Government of Bangladesh (Writ Petition No. 1803 of 2000) an unreported case, a Division Bench of this Court comprising Mr. Justice Shah Abu Nayeem Mominur Rahman and Mr. Justice Arayesuddin held that in section 11 of the Muslim Marriages and Divorces (Registration) Act, 1974 the provision for show cause notice is mandatory. It has been further held there, that there is no difference in the provision of law between the appointment of Nikah Registrar on permanent or temporary basis. In the instant case, no prior hearing or notice to show cause was given to the petitioner before cancellation of his licence. The purported cancellation by the impugned Memo is therefore illegal and not sustainable in law.
12. Before parting with this matter it may be observed that Rule 5(1) of the Muslim Marriages and Divorces (Registration) Rules, 1975 states:
"5. Procedure for cancellation of candidates.- (1) On the occurrence of a vacancy in the office of a Nikah Registrar the Registrar may, on the approval of the Government, issue licence to a qualified person to act as Nikah Registrar on purely temporary basis until a Nikah Registrar is licensed by the Government On regular basis and invite applications, within one month from the date of licence under this sub-rule, for grant of permanent licence of Nikah Registrar of that office."
13. In the present case, it appears that the petitioner was appointed as Nikah Registrar on purely temporary basis for Ward No. 8 on 14-122002 but no steps were taken thereafter to comply with the procedures laid down in Rule 5 above for appointment of Nikah Registrar on regular basis, as a result of which the present complication appears to have arisen. Respondent Nos. 1-3 are therefore, directed to take steps at the earliest to comply with the procedures laid down in Rule 5(1) above as-well as the other provisions of the aforesaid Rules for appointing Nikah Registrar on regular basis as expeditiously as possible for the aforesaid area. The said respondents are also directed to ensure as to whether the petitioner's appointment as temporary Nikah Registrar was made through connivance with the officials of the Ministry of Law, Justice and Parliamentary Affairs, as alleged by the respondent No. 4 and how a part file on the matter was opened thereafter taken steps as per law.
14. Accordingly, with the above direction, this Rule is made absolute without any order as to costs. The impugned order dated 5-1-2000 passed by the respondent No. 2 vide Memo No. 23 judiciary-7/2N -39/94 and Memo No. 20 dated 8-1-2003 passed by the respondent No. 3 (Annexure-F and Annexure-G) to the Writ Petitioner respectively are declared illegal and of no legal effect. The interim orders of stay is recalled and vacated.
Send a copy of this judgment to the respondent No. 3 for information and necessary action.