Case No: Civil Appeal No. 88 of 1980
Court: Appellate Division ,,
Advocate: MR. SR Pal,Mr. B. B.Roy Chowdhury,,
Citation: 33 DLR (AD) (1981) 137
Case Year: 1981
Appellant: Nani Gopal Saha
Respondent: Jatindra Lal Chowdhury and others
Subject: Constitutional Law,
Delivery Date: 1980-12-11
Kemaluddin Hossain, CJ.
F.K.M.A. Munim, J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Nani Gopal Saha
Jatindra Lal Chowdhury and others
December 11, 1980
Bangladesh Restoration of Evacuee Property Order, 1972 (P.O. 13 of 1972)
Power vested in the Tribunal in disposal of appeal from the order of the Thana Magistrate.
B. B.Roy Chowdhury, Senior Advocate instructed by Abdur Rab-II, Advocate on Record.—For the Appellant.
S. R. Pal, Senior Advocate (S.C. Das, Advocate with him), instructed by Aminul Huq, Advocate on Record—For Respondent No. 1.
Civil Appeal No. 88 of 1980
(From the judgment and order dated 21-11-1979 passed by the High Court Division in Writ Petition No. 60 of 1976.)
Ruhul Islam J.
1. This appeal by special leave arises from the judgement of the High Court Division in Writ Petition No. 60 of 1976. Leave was granted to consider the question raised by the appellant-whether under the provisions of the President's Order No. 13 of 1972 the Tribunal has any power to remand; and whether the High Court Division took the correct view that the Tribunal could not direct for re-hearing of the case, and as provided under the Statute, should have adjudicated and decided the case fully and finally, if necessary after taking further evidence in the matter.
2. The facts, in short, necessary for proper appreciation of the contention under consideration may be stated thus: Respondents 1 and 2 challenged legality of the order of the Tribunal and filed an application under Article 7(5) of the President's Order No. 13 of 1972 with Boxirhat Union Arbitration Court. The Arbitration Court forwarded the record of the case to the Thana Magistrate recording that the appellant did not appear before the Arbitration Court, and as such it has no jurisdiction to make any order. The Thana Magistrate caused notices to be served on the parties, who as required in the law, appeared, on consideration of the report submitted by the Magistrate as per direction of the Thana Magistrate and after hearing of the parties and holding local enquiry the Thana Magistrate by his order dated March 15, 1975 directed for restoration of possession of the premises in question to respondents 1 and 2, and possession was delivered to them on March 20, 1975. Against this order the appellant filed an appeal before the Tribunal being Tribunal Appeal No. 3 of 1975 contending, inter alia, that the Arbitration Court was not properly constituted. The Tribunal accepted the contention and after setting aside the order of the Thana Magistrate remanded the case for rehearing by a properly constituted Arbitration Court according to law Validity of this order was challenged by the respondent by filing an application under Article 102 of the Constitution on the ground that the Tribunal acted in excess of its jurisdiction in remanding the ease to the Thana Magistrate for re-hearing inasmuch as statute does not provide any such power to the Tribunal. A Division Bench on examining the different provisions of the President's Order No. 13 of 1972 held that judgment of the Tribunal directing rehearing of the case by the Arbitration Court afresh suffers from clear want of jurisdiction and was made without lawful authority and of no legal effect. This decision is under challenge in this appeal on the ground that the learned Judges committed a substantial error of law in setting aside the judgment of the Tribunal on an erroneous view that the Tribunal has no power to remand.
3. Before the Tribunal it was contended, inter alia that the order of restoration of possession passed by the Thana Magistrate was illegal and without jurisdiction, inasmuch as the recommendation of the Arbitration Court on the basis of which the order was made, was not the recommendation of a properly constituted Arbitration Court. On examining the record the Tribunal found that the Arbitration Court was not properly constituted, because, there is nothing on record to indicate that the case was dealt with by a properly constituted Arbitration Court as contemplated under Article 4 of the President’s Order No. 13 of 1972. According to the Tribunal, there is nothing to show on record that any member other than the Chairman ever participated in the proceedings. Consequently, the Tribunal held that the findings made in the case were made by the Chairman alone, and as such the same could not be the findings of the Arbitration Court; and that possession could not be delivered on the basis of such illegal findings. The learned Judges of the High Court Division, however, took the view that if the Arbitration Court was not properly constituted, the Tribunal being the final appellate authority constituted by the statute itself, and the Tribunal being a special forum created under the special law in the absence of any power specifically given for remanding a case for fresh hearing, the order of remand was wholly unauthorised being in excess of its jurisdiction. On this finding the learned Judges set aside the order of the Tribunal and directed the Tribunal to decide the case fully and finally by itself on the merit.
4. Article 5 provides for constitution of a Tribunal for each Sub-Division. A Tribunal consists of a Chairman and two members, all to be nominated by the District Judge. The Chairman is to be nominated from amongst the Additional District Judges and Senior Subordinate Judges and members to be nominated from amongst other Subordinate Judges and Munsifs. A Chairman or a member shall hold office for such period as the District Judge may determine. Clauses (1), (2), (3), (4) and (5) of article 7 contained the procedure to be followed by the Arbitration Court. Clause (1) provides that when the parties have agreed to Arbitration, the Arbitration Court shall, on the basis of its findings under clause (3), pass an order either allowing the prayer of the applicant or rejecting it; and this order shall be final and binding on the parties. Clause (5) provides that when the parties have not agreed to the arbitration, the Arbitration Court shall send its findings under Clause (3) along with the record of the case, to the Thana Magistrate, having jurisdiction, for such order as he may deem fit. Clause (6) provides that the Thana Magistrate shall, on a consideration of the findings of the Arbitration Court and other evidence on record and after such further enquiry as he may consider necessary or after hearing both the parties, pass an order in writing either allowing the prayer of the applicant or rejecting it: and this order shall, subject to the provision of clause (7) be final and binding on both the parties. Clause (7J provides for an appeal to the Tribunal against the order of Thana Magistrate; and the order of the Tribunal on such appeal shall be final and binding on the parties. Clause (8) provides that where the prayer for restoration of possession is allowed under clauses (4), (6) or (7) the Arbitration Court, in the case of an order passed by it, or the Thana Magistrate in the case of an order passed by it or by the Tribunal, shall cause the possession of the property concerned to be delivered to the applicant by evicting the unauthorised occupant there-from, and may, for this purpose, cause such force to be used as may be necessary. Article 10 gives the power to Arbitration Court, a Thana Magistrate or a Tribunal to issue summons to any person to appear before any Court and give evidence or to produce or cause the production of any document. Clause (2) of article 10 provides that if any person to whom an Arbitration Court, a Thana Magistrate or a Tribunal has issued summons to appear and give evidence or to produce or cause the production of any document before it or him willfully disobeys such summons, the Court, the Magistrate or the Tribunal may take cognisance of such disobedience, and, after giving such persons an opportunity to explain, sentence him to a fine not exceeding twenty rupees.
5. The above provisions clearly show that the Tribunal has not only been given the power to hear an appeal from the Thana Magistrate but also the power of adjudication after taking evidence and give necessary direction for giving possession to the applicant. In an appropriate case the Tribunal has been given the authority to adjudicate the question of possession as a Court of first stage. The learned Judges of the High Court Division have correctly construed the statutory provisions, and we concur with the view taken by the learned Judges that the Tribunal being a specially constituted forum under the special law, its procedure and substantive powers are regulated by the special law; and that the Tribunal cannot pass an order in excess of its power as provided under Articles 3 and 7 of the President's Order No. 13 of 1972.
In the result, the appeal fails and it is dismissed with costs,