Md. Jamiruddin Biswas Vs. Government of Bangladesh, VI ADC (2009) 297

Case No: Civil Petition for Leave to Appeal No. 866 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,,

Citation: VI ADC (2009) 297

Case Year: 2009

Appellant: Md. Jamiruddin Biswas

Respondent: Government of Bangladesh

Delivery Date: 2007-11-18

 
Supreme Court
Appellate Division  
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
 
Md. Jamiruddin Biswas
...........................Petitioner
Vs.
The Government of the People's Republic of Bangladesh and others
………..………Respondent
 
Judgment  
November 18, 2007.
 
It appears from the record that the High Court Division held that since the site selection for construction of Union Parishad Bhavan is a matter of Government Policy in accordance with law and the Authority has done the same. Accordingly the High Court Division finding no substance in this application rejected the same summarily.…. (6)
 
Lawyers Involved:
Md. Aftab Hossain, Advocate-on-Record- For the Petitioner.
Not represented- the Respondent.
 
Civil Petition for Leave to Appeal No. 866 of 2006
(From the judgment and order dated the 25th j April, 2006 passed by the High Court Division in Writ Petition No. 3515 of 2006).
 
JUDGMENT
 
Mohammad Fazlul Karim J.
 
This peti­tion for leave to Appeal is directed against the judgment and order dated 25.04.2006 passed by the High Court Division in writ Petition No. 3515 of 2006 dismissing the petition in limini without issuing Rule Nisi as to why the respondents should not be directed to implement Brahmpur Mouza near Boharampur Bazar to be selected for the construction of newly Dohakul Union Parishad Complex in accordance with the formal resolution passed unanimously by the members of the Union Parishad and as per instruction of the circular of the Government.
 
2. The facts of the case are that the respon­dent Nos.1-5 are regulated and controlled by the Government under Article 55(6) of the Constitution of the People's Republic of Bangladesh and the petitioner repre­sented as a citizen of Bangladesh as well as public servant under local authority guided under Article 59 of the Constitu­tion. The government approved to con­struct Dohakul Union Parishad Building and directed to select a new site. The respondent No. 4 declared to take over the delivery of possession of the old office of Dohakul Union Parishad. Accordingly, the Dohakul Union Parishad called a general meeting at its old premises at 10 a.m. declaring agenda for the selection of site new Union Parishad Building and others 13 members of the Union Parishad prelim­inary selected 4 proposed spots namely Checkhuakuti Bari Mouza, Brahampur Mouza near Boharampur, Dohakul Mouza, chhaibari Mouza, near chhaibari Bazar unanimously. The Chairman of the Union Parishad sent the said resolution to the respondent No. 4 on 04.04.2004. One of the interested inhabitants of Baharampur village gave an undertaking of gift away 0.50 acre of property if the place for pro­posed construction of Dohakul Union Parishad is selected at Brahampur Mouza near Brahampur Bazar on a non-judicial stamp of Tk. 150/- and handed over the said document to the Chairman of Union Parishad in presence of the witnesses on 17.04.2004. The Thana Nirbahi Officer under the written instruction of the Deputy Commissioner on 10.04.2004 and by letter dated 25.5.2004 inspected the proposed spots for selection of site for the construc­tion of new Union Parishad Building and sent an elaborate feasibility report to the Deputy Commissioner on 19.10.2004 along with a forwarding wherein the Thana Nirbahi Officer gave preference of Brahampur Mouza near Bagarpara Bazar among the four proposed selected sites. The T.N.O stated that a local encouraged inhabitant undertook to make over 0.50 acre property near Brahampur Bazar by of gift to set up the proposed Union Parishad with its new permanent building thereon and gave an undertaking on a non-judicial stamp of Tk. 150.00 and handed over the document to the Chairman of the Union Parishad. The place is more suitable and feasible among the others proposed sites around the proposed feasible selected site, there is a Primary School, junior School, a two storied High School, a Madrasa, Hospital, Post Office, Family welfare Centre and an old large hat and Bazar named Bagarpara which has been leased out by the Government to collect tolls. There is also a lot of permanent shop. The buses from Jessore to Narail run adjacent to the proposed selected site of the Union Parishad. The selected and feasible site is just eastern side of linking highway road of the proposed site of Union. The mem­ber of the Union Parishad named Md. Mostafizur Rahman and others who wrote an application to the Deputy Commissioner on the said unscheduled selection of proposed construction of new Union Parishad Building was inspected by the T.N.O at Sukhdeb Nagar wherein there is nothing existing except a Primary School around the proposed selected site. The members of the Union Parishad along with others wrote to the respondent No. 1 to reinvestigate for the selection of newly proposed construction of site. They prefer the Brahm Mouza near Bagharapara quot­ing the recommendation of Thana Nirbahi Officer on 28.03.2006.
 
3. The respondent No. 4 willingly and under the influence of local elite and polit­ical parties, suo motu investigated the pro­posed selection of site for construction of Union Parishad new Building including its own choice site on 20.11.2004 and 02.02.2005. He reported about the selec­tion of site on 28.02.2005 starting that the site is near a bus running road from Jessore to Narail. A local interested per­son undertook to gift the proposed select­ed site for the construction of newly Union Parishad Building and gave an undertaking in a non-judicial stamp of Tk. 150/- there is an old large hut and Bazar along with a lot of existing permanent shops. There is a Government Primary school, Post Office, and Family Welfare Centre. The local people demanded to build up the Union Parishad newly Building at the selected site in Sukhdeb Nagar. A few shops were set up recently. Sukhdeb Nagar is the centre place of the whole Dohakul Union Parishad. The respondent No.4 sent the Report to respondent No.1 and others for information. The Assistant Director-in-charge on behalf of the Deputy Commissioner wrote a letter that in accordance with the inves­tigation for selection of site for the newly Union Parishad Building under the inspec­tion report of the respondent No. 4 who took preference the Sukhdeb Nagar site for the newly constructed Union Parishad Building. The Union Parishad was directed to take decision about the selec­tion to site within 7 days by resolution on 18.05.2005 along with Thana Nirbahi Officer and communicated their decisions. The Chairman of the Dohakul Union Parishad sent a letter along with resolution adopted in a special meeting on 30.05.2005 to the respondent No. 4 and others indicating that the members of the Union Parishad selected the site at Brahampur Mouza near Baharampur Bazar instead of Sukhdeb Nagar by major­ity votes. The Chairman requested the respondent No. 4 to reconsider the selected place by the resolution of Union Parishad. The Chairman of the Dohakul Union Parishad called a general meeting on 05.06.2005 and approved the earlier deci­sion which was taken by a resolution on 29.05.2005 along with members who were disfavoured the decision and sent a letter to the respondent No. 4 on 12.06.2005 under memo No. 2005/75. The decision for selection of newly constructed Union Parishad Building will be at Brahampur Mouza near Boharampur Bazar.
 
4. The respondent No. 4 wrote a letter on 08.03.2006 to the respondent No.1 in respect of feasibility selection of new site for the construction of Union Parishad Building. He requested to take step for selection of Sukhdeb Nagar defying the formal decision undertaken by the majori­ty votes of the Union Parishad without any lawful authority and made an adverse remark behind the back of the Chairman who is an elected representative of the locality of the people. He is the people's representative and public servant and had a legal entity.
 
5.  The local people along with former woman member of the Union Parishad wrote a letter to the respondent No.1 requested him to reinvestigate the selected place in accordance with the unanimous resolution of the Union Parishad on 15.03.2006. The respondent No. 1 without perusal of the entire records, decision of the Union Parishad preferred feasibility report of the respondent accepting the report of Thana Nirbahi Officer who selected the Brahmpur Mouza defying the selected Sukhdeb Nagar site and feasible site of Brahampur Mouza near Baharampur Bazar for the construction of the proposed new Union Parishad Building without ascertaining any com­ment thereof.
 
6. Mr. Md. Aftab Hossain, learned Advocate-on-Record, appearing for the petitioner submitted that the impugned order is bad in law not in conformity with the approved circular of respondent No.1; that the respondent No. 1 as the maker of the circular under the delegated authority of the Government violated itself by non-observing the directory instructions which were binding upon all the parties. Five major vital points are mandatory to select a site as stated in clause 2 of the circular. The impugned site is situated at the centre point of the Union territory except all other four requirements. The respondent No. 1 neither perused the circular nor fol­lowed the construction of the circular thereon. It made the administrative order as a matter of course instead of rule of pro­cedure arbitrarily and as such, violated the binding rights of the petitioner and no right to depart from the circular at its own motion or sweet will. The respondent No. 1 clearly violated the standard or norms of the circular; That the circular is modus operandi by which an objective decision in respect of a subject matter could be solved unjust and arbitrary process adopt­ed the recommendation of respondent No. 4 which was stained with objective stan­dard for determining the proper decision and barred by the principle of estoppel; the respondent No. 1 violated the rule of Business in taking decision without refer­ring the matter of the cabinet division or suo motu in its own motion inquire the matter under Section 63 of the Union Parishad Manual; that the respondent No. 1 approved Sukhdeb Nagar and Khalish Mouza under the representation of respon­dent No. 4 which is a ditch and low lying land and not at all eligible for selection in any way under the instruction of the circu­lar and eluded itself in approving the order which is unlawful from the administrative point of view that the respondent No.1 arbitrarily, irrationally and unfairly eluded itself the frame work of the circular which is the legal rights of the pro bono public under the representation of the petitioner and non-compliance of the instructions of the circular has caused no legal entity of the impugned order that the Dohakul Union Parishad is one of the administra­tive unit under the constitution and under Section 3A of the Union Parishad Manual and the local elected representative of the people are local bodies under the Government. The formal lawful decision by majority votes of the members of the Union Parishad has been withheld by an administrative order of respondent No.1 out of malafide and irrational representa­tion of respondent No. 4 in violating the Notification passed by the respondent No. 1, should be declared to have been passed by no lawful authority and the entry of the Union Parishad as local bodies would be violated as per provisions of the constitu­tion that the Dohakul Union Parishad selected the Baharampur Brahmpur Mouza site for the construction of new Union Parishad Building which is near the old Union Parishad Building by a resolu­tion which is passed by majority votes and the said formal decision has been approved by subsequent general meeting. An inhabitant of local Parishad gifted 0.50 acre instantly. The entire information has been communicated to the respondent No. 4 made an adverse remarks against the Dohakul Union Parishad behind the back of it and without formal inquiry about the matter under section 63 of the Union Parishad Manual and mislead the respon­dent No. 1; that the Government had over all control over activities of the Dohakul Union Parishad. If it has been selected the site of new Union Parishad Building in non-conformity with law or is in any way against the public interest, the Government may suspend the execution of resolution passed or order passed by the Union Parishad under Section 61 of the Union Parishad Manual Ordinance, 1983. But the Government neither suspended the execution of the resolution passed by the majority voter (Anncxure-G1, H1). The respondent No. 1 Violating the provision of lawful authority even over looking the objection made by the local people (Annexure-J), unfairly, unreasonably and arbitrarily approved the site for the con­struction of new Union Parishad Building at Sukhdeb Nagar recommended by respondent No. 1 (Annexure-K).
 
7. The learned Advocate further submitted that one of the interested inhabitants of the locality undertook to gift 0.50 acre proper­ty of the proposed new Union Parishad Building construction. The said site is the most suitable and feasible place. All the local people of the locality will be benefited. Their over all activities round by Bagarpara bazar. There is a bus running highway road from Jessore to Narail. There is a Government Primary School, a two storied High School, a Madrasa, a hospital, a Post Office, a registered former Club, Kazi Office, Mosque, Kali Mandir and renowned old and large hut and bazar as well as other private offices (Annexure-A1, C, and E). On the other hand, in Sukhdeb site, there is a primary school near the selected site and had no other public com­munication in respect of any matter (Annexure-K) in comparison with the two selected sites, the Brahmapur Mouza near Baharampur Bazar site got the preference and privilege over the impugned site.
 
8. It appears from the record that the High Court Division held that since the site selection for construction of Union Parishad Bhaban is a matter of Government policy in accordance with law and the Authority has done the same. Accordingly, the High Court Division finding no substance in this application rejected the same summarily.
In view of the, above we find no sub­stance in the submissions of the learned Advocate for the petitioner.
 
Accordingly, the petition is dismissed.
 
Ed.