Md. Abu Hanifa Vs. Md. Shafiul Bashar and others, 2 LNJ AD (2013) 166

Case No: Civil Appeal No. 28 of 2006

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,Mr. Abdur Razzaq,,

Citation: 2 LNJ AD (2013) 166

Case Year: 2013

Appellant: Md. Abu Hanifa

Respondent: Md. Shafiul Bashar and others

Subject: Principles of Natural Justice,

Delivery Date: 2011-02-15

APPELLATE DIVISION
(CIVIL)
 
A.B.M. Khairul Haque, CJ.
Md. Muzammel Hossain, J.
 S.K. Sinha, J

Judgment
15.02.2011
  Md. Abu Hanifa.
. . . Appellant.
-Versus-
Md. Shafiul Bashar and others
. . . Respondents.
 

Muslim Marriages and Divorces (Registration) Act (LII of 1974)
Section 11
Muslim Marriages and Divorces (Registration) Rules, 1975
Rules 5A (1) and 8 (2)
According to Section 11 of the Muslim Marriages and Divorces (Registration) Act, 1974 no order for cancellation and suspension of a licence shall be made unless the Nikah Registrar has been given a reasonable opportunity of showing cause why that order should not be made. It appears that the High Court Division rightly found that the writ petitioner was initially given temporary licence on 18.01.1995 as per Rule 5A(1) of the Muslim Marriages and Divorces (Registration) Rules, 1975. Under Section 11 of the Act of 1974 read with Rule 8(2) of the Rules, 1975 notice is required to be served upon the Nikah Registrar before cancellation of licence and it is also a fundamental principle of natural justice that no action shall be taken against any person without giving him an opportunity of being heard.….(7)
 
University  of  Dhaka Vs. Jakir Hossain . 16 DLR (SC) 722 ref.
 
For the Appellant: Mr. Abdur Razzaq, Senior Advocate, instructed by Mr. A.K.M. Shahidul Huq, Advocate-On-Record.

For the Respondent No.1: Mr. Md. Khurshid Alam Khan, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-On-Record.

For the Respondent Nos. 2-4 None Represented.
 
Civil Appeal No. 28 of 2006
 
JUDGMENT
Md. Muzammel Hossain, J:

This appeal by leave is directed against the judgment and order dated 01.11.2003 passed by a Division Bench of the High Court Division in Writ Petition No.7505 of 2002 making the Rule absolute and declaring the memo No.1229-Bichar-7/2N-170/78 (Angsha-1) dated 14.11.2002 revoking the licence of Nikah Registrar of the writ petitioner-respon-dent No.1 and approving the appointment of the writ respondent No.4-appellant as Nikah Registrar on temporary basis to be without lawful authority.
 
The respondent No.1 as petitioner filed Writ Petition No.7505 of 2002 before the High Court Division stating, interalia, that the writ-petitioner-respondent No.1 was appointed as temporary Nikah Registrar for No.12, Rangasree Union by the District Registrar, Barisal, respondent No.4 vide Memo No.47 dated 18.01.1995 considering his educational qualifications. The Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs, respondent No.3 vide Memo No.1228-Bichar-7/2N-170/78(Angsha-1) dated 14.11.2002 approved the appointment of the respondent No.4-appellant as the Nikah Registrar on temporary basis for No.12, Rangasree Union. But on the same day the respondent No.3 by the Memo No.1229-Bichar-7/2N-170/78 (Angsha-1) dated 14.11.2002 revoked the licence of Nikah Registrar of the writ petitioner-respondent No.1 for the area of No.12, Rangasree Union without giving him any reasonable opportunity to show cause. Being aggrieved, the writ petitioner-respondent No.1 moved the High Court Division and obtained Rule nisi upon the writ-respondent No.4-appellant and an ad-interim order allowing the writ petitioner-respondent No.1 to continue his function as Nikah Registrar. A Division Bench of the High Court Division after hearing both the parties by the judgment and order dated 01.11.2003 made the Rule absolute.
 
Being aggrieved by the judgment and order passed by the High Court Division, the appellant preferred the instant Civil Appeal by leave before this Court. Leave was granted to consider the following grounds:

“I.  Whether the High Court Division has committed an error of law in concluding that the writ petitioner’s licence had been cancelled without giving him any opportunity to show cause, inasmuch as the writ petitioner was asked by the Assistant Director, Local Government to appear before him twice, but the writ petitioner deliberately abstained from appearing before the Assistant Director.
II.   Whether the High Court Division has committed an error of law in coming to the conclusion that the show cause notice served upon the writ petitioner had become irrelevant because of long gap between the time of service of notice and the act of cancellation, but the said Division failed to consider that the licence could not be cancelled earlier because of an order of stay granted by a Division Bench of the High Court Division in Writ Petition No.2805 of 1996.
III. Whether the High Court Division has committed an error of law in holding that the writ petitioner is entitled to a prior show cause notice before cancellation of his temporary licence which is contrary to various decisions of the Appellate Division in which it has been consistently held that to cancel the licence of a temporary Nikah Registrar no show cause notice is required to be issued.”
 
Mr. Abdur Razzaq, the learned Senior Advocate for the writ respondent No.4-appellant submits that the writ petitioner-respondent No.1 is not a permanent resident of No.12, Rangasree Union and that he has been appointed as Nikah Registrar by producing an identity card which was procured by practicing fraud upon the relevant authorities. He contends that the respondent No.1 was appointed on a purely temporary basis and that his appointment was to remain valid until the Ministry received the enquiry report. He submits that two notices dated 04.09.1997 and 14.09.1997 were issued upon the respondent No.1 and that he failed to answer to those show cause notices and thus it is not illegal in revoking the licence of the respondent No.1. He then submits that the High Court Division committed an error of law in holding that the writ petitioner-respondent No.1 is entitled to get a prior show cause notice before cancellation of his temporary licence which is contrary to various decisions of the Appellate Division. The learned Advocate for the appellant finally submits that the High Court Division committed error of law in concluding that the show cause notice served upon the respondent No.1 had become irrelevant because of a long lapse of time between the time of service of show cause notice and the act of cancellation of the licence and failed to consider that it was not possible to cancel the licence earlier because of an order of stay granted by the High Court Division and as such the impugned judgment and order passed by the High Court Division is not sustainable in law and the same is liable to be set aside.
 
Mr. Md. Khurshid Alam Khan, the learned Advocate appearing on behalf of the writ petitioner-respondent No.1 submits that the revocation of licence of the respondent No.1 as Nikah Registrar of No.12, Rangasree Union without serving notice to show case was violation of the provision of Section 11 of the Muslim Marriages and Divorces (Registration) Act and as such the High Court Division has committed no wrong in making the Rule absolute. He submits that two show cause notices dated 04.09.1997 and 14.09.1997 respectively were issued upon the respondent No.1 asking him to attend before the Enquiry Committee headed by the District Nikah Registrar and that the licence of the respondent No.1 was however cancelled almost five years subsequently and without assigning any reason of the cancellation of the licence and as such the order of revocation without any reason by a non-speaking order is liable to be declared to have been made without lawful authority. Mr. Khan further submits that a person is temporarily appointed as a Nikah Registrar to enable the District Registrar to complete the formalities required under Rule 5 of the Muslim Marriages and Divorces (Registration) Rules,1975 and that a temporary appointed Nikah Registrar can have a legitimate expectation to continue in that post until a permanent Nikah Registrar is appointed and that a temporary Nikah Registrar cannot be replaced by another temporary Nikah Registrar without any specific allegation or without any show cause notice and as such the High Court Division rightly made the Rule absolute with observa-tion. He finally submits that respondent No.1 was given a temporary licence on 18.01.1995 as per Rule 5A(1) of the Muslim Marriages and Divorces (Registration) Rules, 1975 as amended by SRO 10-Law / 2001 dated 14.01.2001 and that he will be deemed to be a permanent Nikah Registrar and entitled to be given a permanent licence and in that view of the matter the licence of the respondent No.1 cannot be cancelled without giving him a prior hearing or show cause notice as provided by Section 11 of the said Act and Rule 8(2) of the aforesaid Rules and as such there is no illegality in the impugned judgment and order passed by the High Court Division and as such no interference is called for by this Division and the appeal is liable to be dismissed.
 
We have heard the learned Advocate for both the parties and perused the impugned judgment and order of the High Court Division, concise statements submitted on behalf of the parties and also other materials available on record.
 
It appears that the respondent No.1 was appointed as temporary Nikah Registrar on 18.01.1995 and he served more than six years as Nikah Registrar and there was no allegation against him and before the cancellation of licence no show cause notice was served upon the respondent No.1. It has been well established that no action should be taken against a person without giving him any opportunity of being heard. In the case of University of Dhaka –Vs- Jakir Hossain reported in 16 DLR (SC) 722 it was held that no action should be taken against a person without giving him any opportunity of being heard. According to Section 11 of the Muslim Marriages and Divorces (Registration) Act, 1975 no order for cancellation and suspension of a licence shall be made unless the Nikah Registrar has been given a reasonable opportu-nity of showing cause why that order should not be made. It appears that the High Court Division rightly found that the writ petitioner was initially given temporary licence on 18.01.1995 as per Rule 5A(1) of the Muslim Marriages and Divorces (Registration) Rules,1975. Under Section 11 read with Rule 8(2) of the Muslim Marriages and Divorces (Registration) Rules, 1975 notice is required to be served upon the Nikah Registrar before cancellation of licence and it is also a fundamental principle of natural justice that no action shall be taken against any person without giving him any opportunity of being heard. In view of the above discussions and finding we are of the view that the High Court Division rightly found that since the respondent No.1 was initially given tempo-rary licence on 18.01.1995 he will be entitled to have a licence of a Nikah Registrar on regular basis from the Government after satisfactory performance as Nikah Registrar at least for three years having requisite qualifications specified in Rule 8 of the Muslim Marriages and Divorces (Registration) Rules, 1975. We have also noticed that the High Court Division has rightly observed that if there is any allegation against the writ petitioner-respondent No.1 then the respondent Nos.2 to 4 are at liberty to hold an enquiry into the matter after giving the respondent No.1 a notice to show cause and thereafter take steps as per law and if necessary cancell his licence pursuant to Section 11 of the aforesaid Act and or Rule 5A(2) of the aforesaid Rules. But in the instant case no such step was taken by the Government while cancelling of the licence of the respondent No.1. Accordingly, we do not find any illegality in the impugned judgment and order passed by the High Court Division. In view of the above findings and observations, we do not find any merit in this Appeal.
 
In the result, the appeal is dismissed with cost of Tk.500/-. The impugned judgment and order dated 01.11.2003 passed by a Division Bench of the High Court Division in Writ Petition No.7505 of 2002 is hereby affirmed.
 
Ed.