Case No: Civil Appeal No. 101 of 1984
Judge: F.K.M.A. Munim,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Mr. Maksumul Hakim,Mr. Altaf Hussain,,
Citation: 38DLR (AD) (1986) 41
Case Year: 1986
Appellant: M/s Hajee Mohammad Ali and Sons
Respondent: Burma Eastern Ltd.
Subject: Land Law,Abandoned Property,
Delivery Date: 1985-7-22
F.K.M.A. Munim C J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M/s Hajee Mohammad Ali & Sons
Burma Eastern Ltd. & others
July 22, 1985.
The Abandoned Property Order, 1972 (P.O. 16 of 1972)
Taking over and handing over of possession of the petrol pump station was done without authorization of law and prior notice to the Appellant firm. This act is complete disregard of the express terms of the agreement between the Appellant and Respondent and such act is reprehensible……….. (27)
Appellant firm has succeeded in establishing that there has been suppression of truth, absence of prior notice before cancellation, non-compliance with the terms of agreement and malafide on the part of the respondent no. 1 and as such the appellant is entitled to the decree sought for it………(32)
Maksumul Hakim, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record— For the Appellant.
Altaf Hussain, instructed by Syed Sakhawat All, Advocate-on-Record—For the Respondent No. 1.
Rafiqul Haq, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondent No. 2.
Ex-parte—For the Respondent Nos, 3 & 4.
Civil Appeal No. 101 of 1984.
From the Judgment and Order dated 7th & 8th December, 1983 passed by the High Court Division, Chittagong in First Appeal No. 16 and 17 of 1983.
Fazle Munim CJ.
1. This appeal arises from First Appeal Nos. 16 and 17 of 1983 disposed of by the High Court Division Chittagong Bench (Mr. Justice Mohammad Habibur Rahman & Mr. Justice Syed Mohammad Ali) on 7th and 8th December 1983.
2. Plaintiff-appellant was appointed an authorised dealer of a petrol pump station at Askararbad, Dhaka Trunk Road, Chittagong. Terms and conditions of dealership between the plaintiff and defendant-respondent No. 1 are contained in the agreement dated 12th September 1968. Originally the dealership licence was held by one Hajee Mohammad Ali, Managing Partner of the appellant firm under an agreement dated 1st December 1967. Subsequently, when the sole proprietorship business was converted into the partnership a fresh agreement was executed by respondent No. 1 in favour of the firm on 2nd September 1968. During November 1971 the Managing Partner of the appellant firm went on pilgrimage in Mecca after making proper arrangement; for managing and operating the petrol pump: a special Power of Attorney as executed by him in favour of his daughter who with a help of that officer of the appellant firm was managing the petrol pump to the satisfaction of the customers. On his return to Bangladesh in June 1972 the Managing Partner of the firm came to learn that the petrol pump was taken over by respondent No. 1 and was handed over to respondent No. 2 with the assistance of respondent No. 3, Additional Deputy Commissioner, (Development) Chittagong. Since then the petrol, pump is being run by respondent No. 2. The Managing Partner of the firm tried his best to get back the pump station but due to the political pressure extended by respondent No. 2 no legal relief could be obtained by him. However, on 13th January 1975 a formal legal notice was served on the Deputy Commissioner, Chittagong and the General Manager, Burmah Eastern Ltd. With the request to restore the filling station to the appellant firm. On 25th October 1976 the Managing Partner of the appellant firm made written representation to the Deputy Commissioner, Chittagong complaining of the illegal acts committed by defendant respondent Nos. 1, 2 and 3 and requesting him to hold an enquiry into the matter and restore the petrol pump to the appellant firm.
3. An enquiry was held by Mr.M.A. Kamal, Deputy Magistrate Sadar, North, Chittagong. He reported as follows:
4. During that investigation the General Manager of respondent No.1 addressed a letter to Mr M. A. Kamal. Deputy Magistrate, Chittagong which is as follows:
5. In his letter dated 20th January 1976 to General Manager, Burmah Eastern Limited, the Deputy Commissioner, Chittagong wrote as follows:
5A. In its reply dated 2nd March 1976 Burmah Eastern Limited stated:
6. During the enquiry by Mr. M. A. Kamal, defendant-respondent No.1 produced copies of three letters before him. First letter dated 20th January 1972 which was addressed to M/S. Haji Mohammad Ali & Sons, dealer Burma Eastern Limited, Dhaka Trunk Road, Chittagong is as follows:
Sub: Our filling station at Dhaka Trunk Road.
In view of the fact that the Government of Bangladesh have declared you an enemy of the State and sealed all your properties, we are arranging to take over our above Filling Station forthwith.”
7. The letter dated 14th January 1972 Ext.3 (III), which was addressed to the Enemy Property and Abandoned Property Sub-Committee reads as follows:
Sub: Our Filling Station at Dhaka Trunk Road.
Our above Filling Station has been sealed on the ground that Hajee Mohammad Ali who was our dealer has been declared as an enemy of the State.
This filling station does not belong to Hajee Mohammad Ali. It is the property of our Company and Hajee Mohammad Ali was merely our dealer, in view of this we would request you to kindly unseal the filling station and return back to us so that we can arrange to operate it again."
The letter dated 20th January 1972 which was addressed to Hajee Mohammad Ali & Sons, appellant firm is as follows:
Sub: Termination of the dispensing pump and selling licence agreement dated 2nd September 1968. Our Filling station at Dhaka Trunk Road, Chittagong.
Please refer to the above agreement executed between you and ourselves, we regard to record that you were not available to operate our Filling Station nor have you intimated to us in writing giving your where abouts.We are therefore constrained to issue in terms of clause 12 of the agreement mentioned herein above, this notice to terminate all our arrangements with your forthwith.
We will be preparing an inventory for our properties viz articles, stocks, furniture, equipments, etc. entrusted to you for our above filling station. We shall adjust the costs in your account with us for any deficiency in our properties entrusted to you.
We shall be taking over our Filling station completely and will run it at our own arrangement."
8. It appears that the reasons for cancelling the dealership as mentioned in the first two letters is that the appellant was an enemy of the State but in the third letter reason for taking over the Filling station was stated to be non-availability of the Managing Partner and lack of knowledge of his whereabouts. Further, though the letter dated 20th January 1972 discloses the intention of making an inventory of the goods which is belonging to the appellant at the time of taking over, no such inventory was ever made either before or after taking over of the Filling station. Moreover, it was taken over two days earlier than the day on which the aforesaid letter was written. Also, no notice as alleged to have been addressed to the appellant on 20th January 1972 was ever served upon him. Further, the appellant claimed that the termination of his dealership licence was malafide, illegal and void for several reasons; first respondent No. 2 was appointed dealer in place of the appellant two days earlier than the purported notice of termination dated 20th January 1972; Secondly, there was no law earlier than 16th February 1972, the date on which the Abandoned Property (Control, Management and Disposal) Order was promulgated for taking over appellant's property as abandoned property, there have been no violation of the conditions in the agreement dated 2nd September 1968 for revocation of the licence. Also, the notice for termination of the appellant's dealership licence was never issued nor served upon him. Thirdly, the plea of the appellant being an enemy of the State is false. Two enquiry reports by the Magistrate and the letter of the Deputy Commissioner would show the appellant was never declared an enemy of the State. Finally, the plea that there was none to look after the petrol pump in question at the relevant time is also without any foundation since the petrol pump was in full operation till it was taken over by respondent No.1 and even as late as 11th January 1972 the appellant's firm deposited the price of petrol supplied by respondent No.1 vide, receipt No. 41181. The petrol pump in question was forcibly taken over by respondent Nos. 1-3 by driving away the employees of the appellant's firm from its premises.
9. On his return from Mecca Hajee Mohammad Ali, Managing Partner of the appellant firm learnt about the details of the cancellation of agreement and taking over the petrol pump. He sent various representations to the authorities concerned, but obtained no relief.
10. Plaintiff-appellant, after serving notice upon respondent No.1, for restoration of the petrol pump and payment of compensation, filed Other Suit No. 125 of 1977 in the Court of 3rd Subordinate Judge, Chittagong on 5th November 1977.
11. Suit was valued at Tk.1.83.330/- the details of compensation claimed were given as follows ".
|I.||Loss average monthly income from 18.1.72 to 20.5.77 @ Tk. 2.000/- per month amounting to||Tk. 1,28,000/-|
|II.||Outstanding credit dues from Customers||Tk. 7,000/-|
|III.||Deposit to defendant No.1 for lifting supplies of petrol oil and lubricant on 11.1.72||Tk. 5,330/-|
|IV.||Stock of oil, lubricants, petrol diesel oil, gear oil and brake oil illegally taken away by defendants No.1 and 2 on 18.1.72||Tk. 35.000/-|
|V.||Fittings and Fixtures illegally removed by defendant No.1 and 2 on 18.1.72||Tk. 5.000/-|
|Total||Tk. -1, 80,330/-|
12. Respondent No. 1 Burmah Eastern Ltd. contested the suit. In the written statement filed it was stated that the suit as framed was not maintainable and was barred under section 42 of the Specific Relief Act. Plaintiff-appellant's allegations are false and frivolous. It was a mere licence at will. The licence was duly cancelled, under clause 12 of the agreement; Ext. 6. There has been no undue political pressure. Nobody was looking after the petrol station during the period of disturbance in 1971. Respondent No.1 took over the station which was then handed over to respondent No. 2 the new licencee. Plaintiff-appellant was not entitled to any compensation.
13. Defendant No. 2, Idris Alam who contested the suit by filing a separate written statement contended that the suit is barred under section 42 of the Specific Relief Act and also barred by limitation. It was stated that he has been unnecessarily impleaded in the suit, for he is a bonafide licencee under respondent No. 1.
14. Respondent No. 3, Mohammad Hossain, did not appear and contest the suit. Plaintiff-appellant examined 9 witnesses and filed 10 documents, marked Exts. 1 to 12. On behalf of the contesting respondents 5 witnesses were examined and filed several documents, marked Exts. A.-B to B (XIII).
15. Findings of the learned Subordinate Judge were that the plaintiff-appellant no longer continued as the licencee of respondent No.1 and was not, therefore, entitled to get an order of permanent injunction restraining respondent No. 1 from supplying oil etc. to respondent No. 2. Also, as respondent No. 2 was already appointed a dealer by respondent No.1 he was entitled to run the Filling station. Plaintiff-appellant was given a decree for Tk. 47,330/-. Break-up of the aforesaid amount is Tk. 2,000/- as business loss for 30 days, Tk. 5.330/- amount deposited as per receipt Ext. 2 dated llth January, 1972 for supply of petrol, Tk. 5.000/-' for plaintiff-appellant's furniture such as chair, table, fan and telephone etc., and Tk. 35.000/- as price of oil, diesel, mobil. The total amount of Tk. 47.330/- was ordered to be paid within 60 days from the of date decree. The learned Subordinate Judge also gave a declaration that the order revoking plaintiff-appellant's licence and appointment of respondent No. 2 as dealer were illegal, unjust an invalid.
16. Suit was decreed in favour of the appellant in the following terms:
17. Being aggrieved by the judgment and decree passed in the aforesaid suit defendant- respondent Nos. 1 and 1, namely. Burmah Eastern Limited, Strand Road, Chittagong and Idris Alam respectively preferred First Appeal Nos. 16 and 17 of 1983 before the High Court Division. The learned Judges of the High Court Division, Chittagong Bench who heard the appeals allowed them and set aside the trial Court's decree.
18. Appellant firm being aggrieved moved this Court and obtained special leave to appeal in the following terms:
The main questions for determination in this appeal are whether the termination of the appellant's dealership licence is legal and, in case it has not been terminated legally or according to its terms, to what reliefs the appellant is entitled?
19. Appellant's Counsel has vehemently argued that in the absence of any violation of the terms of contract between the appellant and respondent No.1, there was no reason excepting an unprecedented political pressure for cancellation of the licence. For, he submitted that respondent No.1 failed to substantiate the allegations which were made against the Managing Partner of the appellant firm. In the first two letters, reason for cancellation was stated to be that the Managing Partner was declared an enemy of the State. In the third letter, reason for termination was shown to be non-availability of the Managing Partner and lack of information regarding his whereabouts. These are, according to the learned Counsel, contradictory and inconsistent allegations. No paper has been produced to show that P.W. 6, Haji Mohammad Ali, the Managing Partner, was ever declared an enemy of the State by the Government. During his absence in Mecca where he went to perform Haj, the petrol pump was being run by the employees of the appellant firm (they were nine in number) quite smoothly and without any hitch, Petrol was delivered by respondent No. 1 to the appellant firm which was being regularly supplied to the members of the public during the period before tne petrol station was taken over by the respondents. Even, as late as 11th January 1972 appellant Firm deposited Tk. 5.330/- as price of petrol to respondent No. 1, vide receipt No. Z 41181 Appellant's employees were present at the petrol station on 18th January 1972 when respondent Nos. 1-3 took over possession forcibly Respondent No. 1, Burmah Eastern Ltd. handed it over to respondent No 2 Idris Alam, in the presence of respondent No. 3 Mohammad Hossain, Additional Deputy Commissioner (Development) and drove them away.
20. Further, though respondent No. 1 in its third letter dated 20th January 1972 to the appellant Firm wrote that it would "be preparing an inventory of our properties, viz, articles, stocks, furniture, equipments, etc. entrusted to you for our above filling station", it appears that no such inventory was prepared by respondent No. 1. Also, respondent No.1 has not been able, to prove the service of notice dated 20th January, 1972 which respondent No.1 claims to have served upon the appellant. These acts are, according to appellant's Counsel, sufficient to show that respondent No. 1 has arbitrarily cancelled the licence and taken over the petrol station without intimating anything to the appellant. The manner of taking over was also highhanded.
21. As regards the contention of the appellant's Counsel that one month's notice was required for cancellation of dealership, reference was made to clause 12 of the agreement, Ext. 6. Clause 12 is as follows:
(b) Notwithstanding anything to the contrary herein contained the company shall be at liberty to revoke this licence forthwith upon or at any time after the happening of any of the events following:—
(i) If the Licencee........ shall be ad-judicated insolvent;
(iv) If the Licencee shall bf guilty of breach of any of the covenants and stipulations of their part contained in this licence".
22. Appellant's Counsel also mentioned that not only notice of 30 days as required under clause 12 of the Agreement was not served upon plaintiff-appellant before revocation of the licence, respondent No.1 did not even resort to arbitration as provided in the agreement. There is no material on record, nor any evidence either oral or documentary, to show that respondent No. 1 gave such notice excepting the letters written to plaintiff-appellant. Even if the aforesaid letters were written on 20th January 1972, the petrol station was already taken over by respondent No.1 with the help of respondent No. 3 and handed over to respondent No. 2 on 18th January 1972. Moreover, no inventory of articles, stock, furniture, equipment, etc. as required under clause 14(e) of the Agreement was ever made by respondent No.1 and supplied to plaintiff-appellant. Other formalities under the said clause were also not complied with by respondent No. 1. All these acts on the part of respondent No. 1 show that termination of the licence has not been in accordance with the terms of the agreement. Thus the revocation of the licence has been wrongful and illegal.
23. There is no dispute that Haji Mohammad Ali, Managing Partner of the appellant firm, went on pilgrimage to Mecca in November, 1971 and returned to Bangladesh in June, 1972. Before his departure he executed a Power of Attorney Ext 4 a), in favour of his daughter, P.W. 5 Noor Begum, empowering her to look after the firm and other businesses. On 11th January, 1972 she paid Tk 5130/- to the Manager Mr. Shafi for payment to respondent No.1 for supplying petrol. Ext. 2 is the receipt for this amount received by respondent. No.1. P.W. 5 stated that she got the following letter dated 21st January 1972 from respondent No.1.
Messrs. Haji Mohammad Ali & Sons
We have for acknowledgement your letter dated 13.1.1975.
2. We write to advise that your client was not available after liberation of Bangladesh to operate our Filling station nor had he intimated to us in writing giving his whereabouts, we were, therefore, constrained in order to save our properties from destruction to terminate our all arrangements in connection with his dealership business with us in terms of Clause 12 of the Dealership Agreement dated 2. 9.1968 executed by him with us. In this connection we enclose a copy of letter of termination dated 20.1.1972 issued by us to your client.
3. In the circumstances we regret we cannot in any way restore the Filling station to your client.
Yours faithfully, Burmah Eastern Limited
For General Manager.
C.C.: Deputy Commissioner, Chittagong"
24. As respondent No. 1, Burmah Eastern Limited, failed to restore the petrol Filling station, plaintiff-appellant after making correspondence with Deputy Commissioner, Chittagong, vide letter Ext. 8 dated 13th January/1975, letter Ext. 8 (a) dated 25th October, 1975 and also to General Manager, Burmah Eastern Limited requesting them to restore the Filling station, the appellant's firm served legal notice upon respondent No.1. vide Ext, B (IX) dated 20th October, 1976 claiming restoration and compensation As the plaintiff-appellant was not satisfied by the reply to their notice, Ext. B (X) dated 15.11.76 present suit out of which this appeal has arisen was filed on 5th November, 1977 for declaration and consequential reliefs, ready mentioned above. The reason for not filing the suit earlier has been stated to be the abnormal conditions which were then prevailing in the country. Due to the worsening law and order situation, neither P. W.6, Managing Partner of the appellant firm, nor any other partner dared file any suit against respondent No. 2 who belonged to the ruling party. These allegations by the appellant find support from the authorities, failure to take any action during the continuance of the regime, though two Magistrates after holding enquiries submitted reports in 1975 in favour of the appellant firm.
25. Respondent No.1 could not, it appears s substantiate either of the allegations made against the appellant firm. No paper has been produced to show that the Managing Partner of the appellant firm was declared an enemy of the State by the Government There was no law enabling the State to declare a citizen an enemy of the State when the petrol station was taken over by respondent No 1. There is no basis for making such allegation as appears in the letter dated 21st January, 1972, Ext. 3. written by respondent No 1, Burmah Eastern Ltd to the appellant firm. The letter is as follows:
Our Filling station at Dacca Trunk Road.
In view of the fact that Government of Bangladesh have declared you an enemy of the State and sealed all of your properties, we are arranging to take over our above. Filling station forthwith.
Burmah Eastern Limited
For General Manager."
27. So far as cancellation of the licence. Ext 6, is concerned, it appears that this has been done without any reference whatsoever to the terms of agreement contained in clause 12 of the agreement. The clause provided for giving 30 days' notice before terminating the licence. From the evidence of P.W.1, Manjur Ahmed Chowdhury, District Marketing Officer of respondent No. 1, it appears that the Petrol station was taken over by the Government as abandoned property and released on his application on 18th January, 1972. It may, however, be mentioned that Abandoned Property Order, 1972, (P.O.16 of 1972) came into force much later. No inventory of the articles belonging to the appellant firm were made in presence of or before any of its representatives. From all this appearing from the evidence in record, it becomes clear that the taking and handing over of possession of the petrol station was done without authorisation of law and prior notice to the appellant firm and in complete disregard of the express term in the agreement. We agree with the findings of the learned Judges of the High Court Division that the action of respondent No. 1 in terminating the licence, Ext. 6, has been wrongful.
28. Respondent No.3, Idris Alam. stated that he got provisional licence on 18th January, 1972 and on depositing Tk. 15,000/-as security money, vide receipt, Ext. C (1), got regular licence, Ext. B(1), on 26th November, 1972. He was the Publicity Secretary of the Awami League which fact makes it easier to understand the reasons behind the action of respondent No. 1.
29. So far as appellant firm’s right to compensation is concerned, it has been considered by the learned Judges of the High Court Division but no other item of compensation has been allowed by them excepting Tk. 5.330/-, price of petrol, deposited by the appellant firm on 11th January, 1972 and with this modification of the trial court decree which allowed Tk. 47,000/- as compensation, the learned Judges disallowed the other items on the ground of limitation.
30. Since the action of respondent No. 1 in terminating the agreement and cancelling the licence has been found to be not only arbitrary, high-handed and unjust but mala-fide we find no reason, even though of limitation, to deny him the compensation decreed by the trial Court. In this connection appellant's Counsel mentioned that the appellant firm could not seek any legal relief against the respondents since the partners of the firm were very much scared due to the prevailing lawlessness in the country. Even then, Haji Mohammed Ali, Managing Partner of the firm, approached respondent No.1 and the Deputy Commissioner, Chittagong for restoration of the petrol station but to no effect. Thus, delay was caused in filing the suit.
31. Mr. Moksumul Hakim, Counsel for the appellant, referred to two cases, namely, Abdul Rauf and others Vs. Abdul Hamid khan and others, (1965) 17 DLR (SC) 550 and Abul Khair Mia Vs. Abdul Latif Sardar, (1980) 32 DLR 167. In the former case decided by the Supreme Court of Pakistan it was observed:
32. In the latter case this Court while considering whether an ex parte decree obtained fraudulently by suppressing summons is a nullity observed that if fraud is proved then there is no question of limitation and it will run from the date when fraud was detected. Obviously, in the present case before us appellant firm has succeeded in establishing that there has been suppression of truth, absence of prior notice before cancellation, non-compliance with the terms of agreement and malafide on the part of respondent No.1 which have entitled the appellant to the decree sought for by it.
33. Learned Counsel of the appellant firm prayed for allowing the entire compensation amounting to Tk. 1,80,330/-. It, however, appears that appellant firm did not file an appeal in the High Court Division in respect of these amount excluding Tk. 47,000/- for which the trial Court gave it a decree.
For the reasons stated above, the appeal is allowed, judgment of the High Court Division is set aside and that of the trial Court is restored. There will, however, be no order as to costs.