Md. Delwar Hossain and others Vs. Bangladesh & ors., 2018(1) LNJ 200

Case No: Writ Petition No. 6563 of 2008

Judge: Muhammad Khurshid Alam Sarkar, J.

Court: High Court Division,

Advocate: Mr. Md. Harunur Rashid, Advocate, Dr. Ibne Aziz Md. Nurul Huda,

Citation: 2018(1) LNJ 200

Case Year: 2016

Appellant: Md. Delwar Hossain and others

Respondent: Bangladesh and others

Subject: Constitution of Bangladesh, 1972

Delivery Date: 2018-06-03

by law every citizen has the right to conduct any lawful trade or business. This right of a citizen is a constitutional right which cannot be infringed by the intervention of the unlawful activities of the respondents.

8.          Having gone through the materials on record, we find merit in the Rule.

9.          Accordingly, the Rule is made absolute.

10.      The respondents No. 3 and 12 are hereby directed to handover the seized gold ornaments to the petitioner within 30(thirty) days from the date of receipt of a copy of this judgment.

11.      Communicate copy of this judgment to respondents at once.

Ed.

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

30.11.2016

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Md. Delwar Hossain and others

...Petitioners

-Versus-

Bangladesh and others

...Respondents

Constitution of Bangladesh, 1972

Article 102

The amount claimed by the petitioners is neither specified nor admitted and, secondly, the contract of the petitioners are clearly of commercial nature. Therefore, the observation made by the Apex Court in the above cited-case is not applicable here in this case. In the light of the ratio laid down in a host of cases of this Court including the case of Concord Pragati Consortium Ltd Vs BPDB reported in 66 DLR 475, we hold that the present writ petition is not maintainable.    . . . .(15)

Constitution of Bangladesh, 1972

Article 102

The writ petitioners’ option of invocation of writ jurisdiction is nothing but simply a deliberate step of abusing the process of this Court and, thus, this Court is of the view that the petitioners deserve to be slapped with an exemplary costs. In the result, the Rule is discharged with a cost of Taka 1,00,000/- (One Lac) to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days from the date of receipt of this order.        . . . (16 and 17)

Dhaka Warehouse Ltd & another Vs Assistant Collector of Customs & others, 11 BLD (AD) 327; Water Development Board Vs Shamsul Huq, 51 DLR (Ad) 169; Collector of Customs Ctg. Vs A. Hannan, 22 DLR (AD), 167; Concord Pragati Consortium Ltd Vs BPDB 66 DLR 475 ref.

Mr. Md. Harunur Rashid, Advocate

. . . For the petitioners

Dr. Ibne Aziz Md. Nurul Huda with

Mr. Mirazul Hossain Khan, Advocates

…. For respondent no. 4

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why respondent no. 4 shall not be directed to consider the memos issued by respondent no. 2 dated 12.04.2006 and 29.11.2007 (annexure-C, C-1 and C-2) and pay the remaining dues of 25% amounting to Tk. 1,20,77,531/- (One Crore Twenty Lac Seventy Seven Thousand Five Hundred and Thirty One Only) to the petitioners (as detailed in paragraph no. 4) and/or pass any other order or direction as this Court may deem fit and proper.

2.          Succinctly, the facts of the case, as stated in the writ petition, are that all these writ petitioners are the dealers of the Adamji Jute Mills Limited (hereinafter referred to as Jute Mills) and, from time to time, they supplied jutes to the said Jute Mills and it is the case of the petitioners that eventually Tk. 1,20,77,531/- (One Crore Twenty Lac Seventy Seven Thousand Five Hundred and Thirty One) fell due to the Jute Mills. Although they have approached the Jute Mills on several occasions for payment of their dues, the said authority did not pay any heed to their call. Finding no other way, the petitioners moved to this Court and hence this Rule.

3.              Bangladesh Jute Mills Corporations (BJMC) (respondent no. 4) contested this Rule by filing affidavit-in-opposition contending, inter-alia, that an internal correspondence was made by the BJMC to the Ministry with a request to provide some fund for enabling the BJMC towards adjustment of the various outstanding bills, including the bills of jute suppliers, but the petitioners cannot assert that the correspondence was made for paying off the petitioners’ bills. It is stated that the claim of the petitioners as to the amount of money has not been settled by the BJMC and, further, the petitioners have also not been able to figure out the amount of their claim.

4.              Md. Harunur Rashid, the learned Advocate for the petitioners, by taking us through the statements made in paragraph no. 3 and also annexure-B to the writ petition, submits that since the BJMC admits the dues of the petitioners upon making payment of 75% of the petitioners’ dues, they are legally bound to pay the remaining 25% dues. In an effort to substantiate his above count of argument, he refers and relies upon the annexure-B, which is a letter dated 21.11.2005 written by the BJMC to the Ministry seeking fund for settlement of the dues, and submits that in view of the BJMC’s admission stated in its own correspondence in tandem with the fact that it has never denied the claim of the petitioners regarding the petitioners’ remaining 25% dues, the BJMC is liable to pay the petitioners’ rest amount of dues.

5.              With regard to the issue of maintainability of this writ petition, the learned Advocate for the petitioners refers to the cases of Dhaka Warehouse Ltd & another Vs Assistant Collector of Customs & others, 11 BLD (AD) 327 and Water Development Board Vs Shamsul Huq, 51 DLR (Ad) 169 and submits that this writ petition is maintainable for the reasons that, firstly, the alternative forum is not efficacious and secondly the claimed amount is an admitted amount.

6.              By placing the above submissions, the learned Advocate for the petitioner prays for making the Rule absolute.

7.              Per-contra, Dr. Ibne Aziz Md. Nurul Huda, the learned Advocate appearing for respondent no. 4 takes us through the annexure-B to the writ petition for the 2nd time and contends that the said letter is written by the Chairman of the BJMC to the Secretary of the Ministry of Jute and Textile and the content of the said letter is with regard to the audited liabilities of the Adamji Jute Mills Limited and there is no mention of the dues of these petitioners in specific terms.

8.              Dr. Huda contends that BJMC has never admitted the claim of the petitioners. By referring to the paragraphs 3, 4 and cause-title of the writ petition, Mr. Huda shows us the inconsistencies in the figures of the claimed amount by the petitioners and submits that the petitioners themselves do not know the exact figure and amount of the dues that have been fallen dues. He argues that since the petitioners’ claimed amount is not specific and, further, the amount is yet to be settled between the parties, the claim cannot be adjudicated upon by this Court.

9.              Finally, Dr. Huda, the learned Advocate for the BJMC, submits that the present Rule is liable to be discharged only on the ground of maintainability of the writ petition inasmuch as the relationship between the petitioners and BJMC is of commercial nature. According to Mr. Huda, the writ petitioners ought to have approached the civil Court seeking a decree on the claimed amount of money and, thereafter, they may have proceeded further if a decree is obtained from the said competent forum.

10.          By making the above submissions the learned Advocate for the BJMC prays for discharging the Rule with exemplary costs.

11.          We have heard the learned Advocate for the petitioner and the learned Advocate for the BJMC (respondent no.4), perused the writ petition and affidavit-in-opposition together with the annexures thereto. We have also considered the relevant laws and decisions placed before us by the parties.

12.          Since the issue of maintainability of this writ petition has been raised by the learned Advocate for the BJMC, this Court is duty bound to deal with, at first, the maintainability issue before embarking upon the other issues involved in this case.

13.          In order to have a proper resolution on the issue of maintainability of this writ petition, we are required to look at the content of the annexure-B which is the petitioners’ basis of claims as to admission by the BJMC. After going through the same, it appears to us that letter dated 21.11.2005 is an internal correspondence by the BJMC to the Secretary, Ministry of Jute and Textiles for providing fund against the dues under the heading of jute supply, store, transport bills, handling and carrying costs, computer service bills, bills of the lawyers and auditors, security money etc, which have been audited previously. There is no specific mentioning of the petitioners’ claim in the said internal correspondence and, thus, we do not find any admission by the BJMC on the petitioners’ claim. More so, from the perusal of the writ petition and affidavit-in-opposition it appears to us that the claimed-amount is not specified. From a minute reading of the Cause-Title, it transpires that the petitioners are claiming their dues to be an amount of Tk. 1,18,41,376/ (One Crore Eighteen Lac Forty One Thousand Three Hundred and Seventy Six), whereas from the perusal of the statements made in paragraph no. 3 of the writ petition it transpires that their claimed amount is Tk. 1,20,77,531/ (One Crore Twenty Lac Seventy Seven Thousand Five Hundred and Thirty One)  only. Also from the perusal of paragraph no. 4 to the writ petition, where the petitioners have given a chart of their claim, the amount appears to be a different one. Thus, if the Cause-Title, paragraph nos. 3 and 4 to the writ petition are read together, any one with ordinary prudence would come to a conclusion that the claim of the petitioners is not specified. With regard to the submissions of the learned Advocate for the petitioners that the writ petition is maintainable as the claim of the petitioners are against statutory body, this Court finds that the relationship between the petitioners and BJMC is clearly based on commercial transactions. From the averments of the writ petition as made in paragraph no. 2 of the writ petition, it appears that the petitioners categorically stated that they are the suppliers of the jute to the Adamji Jute Mills Ltd and, thus, it is not difficult to arrive in a decision that Adamji Jute Mills Ltd, being a statutory body, was carrying out its business with the petitioners as an enterprise.

14.          The ratio of the case of Collector of Customs Ctg. Vs A. Hannan, 22 DLR (AD), 167, as referred to by the petitioners’ learned Advocate in support of maintainability of this writ petition, is not applicable in this case. The ratio of the above case is that even if there is any alternative forum available, an aggrieved person may approach this Court directly. Upon perusal of the facts of the case and the ratio laid down therein, it appears to us that the cited-case is with regard to customs matter, wherein the petitioner of the cited-case instead of approaching the appellate forum had directly invoked this forum under Article 102 of the Constitution when the High Court Division found that the appellate forum was not efficacious which was affirmed latter on by the Appellate Division. In a customs case, the appellate authority namely, Commissioner of Customs or NBR usually decline to pass any interim order as to enabling the petitioners to release their goods and from that point of view in the cited-case the principle was laid down saying that even if there is an appellate forum the petitioners are competent to approach the forum under Article 102 of the Constitution directly because of not being remedied with any interim relief. Therefore, the ratio of the cited case is not applicable in the case in hand.

15.          The learned Advocate for the petitioners has referred to another case namely, Water Development Board Vs Shamsul Huq, 51 DLR (Ad) 169 in an endeavour to convince this Court that since the amount is admitted and the contract of the petitioner was against a statutory body, the present writ petition is maintainable. We have gone through the entire judgment of the above-cited case and it appears to us that in the said case, a contractor approached the High Court Division for recovery of money from the  Water Development Board and the said Rule was made absolute and, subsequently, the Appellate Division in setting aside the order of the High Court Division made an observation, in the form of obiter dicta, that “High Court Division in its writ jurisdiction is not a Court of recovery of money and has no jurisdiction to give a direction for payment of a particular amount of money to the writ petitioner, unless the amount claimed is both an admitted amount as well as a statutory payment.” Reverting to our case, suffice it to say that, firstly, the amount claimed by the petitioners is neither specified nor admitted and, secondly, the contract of the petitioners are clearly of commercial nature. Therefore, the observation made by the Apex Court in the above cited-case is not applicable here in this case. In the light of the ratio laid down in a host of cases of this Court including the case of Concord Pragati Consortium Ltd Vs BPDB 66 DLR 475, we hold that the present writ petition is not maintainable.

16.          Let us now see whether the petitioners should be slapped with costs, as prayed for by the learned Advocate for the BJMC. The learned Advocate for the petitioner was allowed to make his submissions as lengthy as he wished and eventually after hearing him for a number of days, he was informed by this Court that the Rule is liable to be discharged on its maintainability ground. At this juncture, the learned Advocate was  asked to take instructions



Writ Petition No. 6563 of 2008