Md. Sona Mia Vs. Collector of Customs, Chittagong and others, 27 DLR (AD) (1975) 82

Case No: Civil Appeal Nos. 10-D, 11-D, 12-D, 13-D, 14-D, 15-D, 16-D, 17-D and 18-D of 1969

Judge: Mahmud Husain,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Mr. M.H. Khondkar,Mr. Abdur Rab-II,,

Citation: 27 DLR (AD) (1975) 82

Appellant: Md. Sona Mia

Respondent: Collector of Customs, Chittagong

Subject: Notice,

Delivery Date: 1975-4-4

 
Supreme Court
Appellate Division
(Civil)
 
Present:
A.M. Sayem CJ
A. B. Mahmud Husain J 
M. A. Jabir J
Ahsanuddin Choudhury J
 
Md. Sona Mia alias Sona Mian Sawdagar being dead his heirs, Md. Nurul Islam and others
…………….…. Appellants.
Vs.
The Collector of Customs, Chittagong and others
………………………... Respondents (In Civil Appeal Nos. 10-D to 15-D of 1969).
 
Abdul Wahab Talukdar
……………....Appellant.
Vs.
Collector of Customs and others
………………...Respondents (In Civil Appeal Nos. 16-D & 17-D of 1969).
 
Abdul Gafur
……………………….Appellant.
Vs.
Collector of Customs and others
……………….... Respondents (In Civil Appeal No. I8-D of 1969).    
 
Judgment
April 4, 1975.
 
High Court of Bangladesh Order (P.O. 5 of 1972)
Article 6A(3)
Government officer made parties in their official capacity and as such notice on the Govt. under article 6A (3) of P.O. 5 of 1972 must be served— Non-service of notice on the Govt. results in the abatement of the whole appeal.
 
Cases Referred to-
The Queen Vs. The Justice of the County of London and the London County Council, in (1893) 2 Queen's Bench Division 476 (492); Gancshmulla Surana Vs. Nagraj Surana, 56 C.W.N. 812; The Commissioner of Agricultural Income-tax, West Bengal Vs. Tarek Nath Mukherjee, 53 CW.N. 725; Province of Bombay Vs. Khushaldas S. Advani, 86 Calcutta Law Journal, 330=A.I.R. 1950 S.C. 222; Rajvi Amar Singh Vs. State of Rajsthan, A.I.R. 1958; State of Madras and another Vs. K. M. Rajagopalan, A.I.R, 1955 S.C. 817; M/s East Pakistan Lamps Ltd., Dacca Vs. Pakistan and others in Civil Appeal No. 17-D of 1970.
 
 
Lawyers involved:
M.H. Khondkar, Senior Advocate, instructed by S.S. Hoda, Advocate-on-Record For the appellants.
Syed Ishtiaq Ahmed, Additional Attorney-General with Mahmudul Islam, Assistant Att­orney- General, instructed by A.W. Mallik, Advocate-on-Record.—For the Respondents.
Abdur Rab-II, Advocate-on-Record—For the Appellant.
Syed Ishtiaq Ahmed, Additional Attorney-General, instructed by A.W. Mallik, Advocate-on- Record.—For the Respondents.
Abdur Rab-II, Advocate-on-Record—For the Appellant.
Syed Ishtiaq Ahmed, Additional Attorney-on-Record— For the Respondents.
 
Civil Appeal Nos. 10-D, 11-D, 12-D, 13-D, 14-D, 15-D, 16-D, 17-D and 18-D of 1969.
(On appeal from the judgment of the erstwhile High Court of East Pakistan dated 21-12-1967 passed in Pakistan Nos. 157, 158, 159, 160, 161, 162, 163, 164, 165, 235 and 327 of 1967.)
 
JUDGMENT
 
Mahmud Husain, J.
 
1. In all these appeals a preliminary question arises for consideration and Mr. Ishtiaq Ahmed, learned Additional Attorney General for the Government conten­ded that failure on the part of the appellants to serve notice on the Government as per the first proviso to article 6A (3) inserted in President's Order No. 5 by article 4 of President's Order No. 91 of 1972 resulted in the abatement of the appeals. It is submitted that Government is not a party in these appeals, but the officers of the Government are parties and the relief con­templated in these appeals are not against the officials in their personal capacity and since the relief is on account of the actions taken by them in their official capacity, notice con­templated under article 6A (3) of President's Order No. 5 of 1972 must be served. It is no doubt true that the posts are retained by this Government but that does not mean that their actions under the previous Government have been accepted by this Government.
 
2. Mr. M. H. Khondker learned Counsel for the appellants contended that article 6A refers to cases when Government of Pakistan or East Pakistan is parties. There is no pro­vision in respect of cases against Government officers and as such the notice contemplated under article 6A cannot be claimed in a case where the Government Officers are parties. It was submitted that the Collector of Customs and other officers who are respondents in these appeals and are functioning as such even after the establishment of this sovereign State fol­lowed by Proclamation of Independence, and so these appeals could proceed against those officers even without service of notice referred to above. In this connection Mr. Khondker referred to a passage in the case of The Queen Vs. The Justice of the County of London and the London County Council, in (1893) 2 Queen's Bench Division 476 (492) which runs thus: —
 
"What is the ordinary rule of construction when construing Acts of Parliament and other documents? It is that if the language is ambiguous and admits of two views you must not adopt that view which leads to manifest public mischief."
 
Mr. Khondker laid stress on the words "public mischief" and tried to impress upon us that article 6A of President's Order No. 5 of 1972 does not refer to the Government officers and in case the appeals fail on the ground of non-service of notice, this will come within the ambit of the words "public mischief". The present sovereign Government retained functionaries of the Government and the officers thus retained for discharging their official duties can only function for this Government, and are not liable for actions prior to Independence. This so­vereign State can accept or reject actions of the officers of the past State, but no Court can saddle the Government with liability on a reference to "public mischief" indicated in the above decision on which Mr. Khondker laid stress. His argument would have been very much appreciated, had there been no change in the sovereignty of the State. He relied on the case of Gancshmulla Surana Vs. Nagraj Surana, in 56 C.W.N. 812 and tried to impress upon us that with the devolution of office, these appeals can continue against those respondents after availing the precisions of Order 22, rule 10 of the Code of Civil Procedure, In our view this provision is not at all attracted in this case.
 
3. The case of The Commissioner of Agricultural Income-tax, West Bengal Vs. Tarek Nath Mukherjee, in 53 CW.N. 725 relates to Bengal Agricultural Income-tax Act. On in­terpreting a section of this Act is has been held:
 
"It is a cardinal rule of interpretation that one should, in the first instance, interpret the section and the words used therein unless there is any doubt or if other portions of the Act do not stand in the way of such an inter­pretation—and in such cases one has to look at the whole Act and examine not merely a particular section or part of a section.
If there be any doubt, of if there be two alternative interpretations possible, a taxing statute must be interpreted in favour of the assessee and against the Revenue Authority".
 
This principle is not disputed, but it has no manner of application in the facts of the present case.
 
4. The case of Province of Bombay Vs. Khushaldas S. Advani, in 86 Calcutta Law Journal, 330 corresponding to A.I.R. 1950 S.C. 222 has been relied on by Mr. Khondker and he made particular reference to a passage at page 387 of 86 Calcutta Law Journal wherein the question arises whether a writ of certiorari lies against the Provincial Government. The principle enunciated therein has no manner of applica­tion in the facts of the present case.
 
5. In the case of Rajvi   Amar Singh Vs. State of Rajsthan, A.I.R. 1958 Supreme Court 228 interpretation of Articles 311 and 363 of the Constitution of India was involved and there­in it was held :—
 
"It is well established that when one State is absorbed in another, whether by accession, conquest, merger or integration all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more (though on a more exalted scale) than an application of the principle that underlies the law of Master and Servant when there is a change of masters."
 
This principle is not at all disputed. But it has no manner of application in the present case.
 
6. The case of State of Madras and another Vs. K. M. Rajagopalan, in A.I.R,   1955 S.C. 817 is on the effect of political change in India in 1947 wherein option, was given to Government to continue in service an Indian Civil Servant. The principle enunciated therein has no manner of application in the facts of the present case.
 
7. The principle enunciated in Chapter VIII (The Doctrine of Acquired Rights and Administrative Contracts) at page 136 of the Law of State Succession, by D. P. O. 'connell, (1956 edition) is with reference to Annexation of Burma by Great Britain in 1886.  Mr. Khondker refers to the following passage at page 142:—
 
"A new Government, he advised, succeeds to fiscal rights and is bound to fulfill the fiscal obligations of the former Government, and it is also responsible for debts previously contracted."
 
This advice was given on the facts disclosed therein, but that has no manner of application in the facts of the present case since specific provision of law has been made by this Govern­ment in that behalf.
 
8. The Government is not a party in this case, but the decision in the present case may involve the Government and not the officers in their personal capacity. The mere fact that the officers against whom the proceedings were initiated are retained by this Government does not necessarily follow that this Government accepted the actions of these officers performed by them under a different sovereign State.
 
It has been held in the case of M/s East Pakistan Lamps Ltd., Dacca Vs. Pakistan and others in Civil Appeal No. 17-D of 1970 that non-service of notice as provided in Pre­sident's Order No. 5 of 1972 results in abate­ment of the appeal as a whole. Admittedly notice under article 6A (2) of President's Order No. 5 of 1972 has not been served on the Go­vernment. So the appeals abated.
 
In the circumstances these appeals abate.
 
Ed.