Nazmun Nahar Begum Vs. Government of Bangladesh and others, 2016(1) LNJ 18

Case No: Writ Petition No. 315 of 2014

Judge: Syed Refaat Ahmed,

Court: High Court Division,,

Advocate: Mr. Md. Shahidul Islam,Mr. M. Belayet Hossain,Mr. Mohammad Idrisur Rahman,,

Citation: 2016(1) LNJ 18

Case Year: 2016

Appellant: Nazmun Nahar Begum

Respondent: Government of Bangladesh and others

Subject: Writ Petition, Certiorarified Mandamus,

Delivery Date: 2014-10-29

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J.
And
Md. Jahangir Hossain, J.

Judgment on
29.10.2014
 
Nazmun Nahar Begum
... Petitioner
-Versus-
Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Housing and Works, Bangladesh Secretariat, Dhaka and others.  
. . . Respondents
 
Constitution of Bangladesh, 1972
Article 102
Discharge of administrative functions with transparency and accountability have emerged as the cornerstone of establishing Rule of Law from which no derogation is permissible. Lapses in this regard marked by arbitrary exercise of discretionary power, thereby, adversely affecting individual interests are readily made subject to judicial review. The objective here being that fair administration must always live up to the legitimate expectation of regularity in administrative functions achieved chiefly by aiming at serving both individual and the larger public interest. …. (13)
 
Constitution of Bangladesh, 1972
Article 102
This combination of Certiorari and Mandamus by which a decision can be quashed and simultaneously a direction may ensue for a matter to be considered in accordance with law is known as “certiorarified mandamus”. This Court holds that such a moulding of relief becomes necessary when equity needs to be served and there is need for an appropriate remedy in judicial review to evolve in the facts and circumstances to further the course of justice within the available constitutional range. . . .(21)
 
Constitution of Bangladesh, 1972
Article 102
This Court, see no reason why an Order in Certiorarified Mandamus will not issue requiring the Respondents to dispose of the Petitioner’s application dated 11.12.2013 in a manner wholly favourable to her and in keeping with the terms and tenor of the original allotment in her favour dated 9.5.2012. This Court is equally inclined now to declare both the allotment to Respondent No. 6 of 26.11.2013 and the cancellation Memo of 5.12.2013 to be without lawful authority and of no legal effect. Resultantly both Orders are, hereby, quashed. . . . (23)

Central London Property Trust Ltd. Vs. High Trees House Ltd., (1947) 1KB 130; Associated Provincial Picture House Ltd. Vs. Wednesbury Corp, (1948) 1Kb 223 and (1947) 2All ER 680; CCSU Case before the House of Lords, (1985) 1 AC 374 and (1984) 3 All ER 935 HL; Ex-Servicemen Association Vs. Union of India, AIR 2006 SC 2945; Syed SM Hasan Vs. Bangladesh, 60 DLR (AD) (2008),76; Union of India Vs. Hindustan Development Corpn., AIR SC 1994, 988; AIR 1996 SC 2410 and AIR SC 1994, 988; Shangrila Food Products Ltd. Vs. L.I.C. of India, AIR 1996 SC 2410; Union of India Vs. Hindustan Development Corpn., AIR SC 1994, 988; Halsbury’s Laws of England, Fourth Edition, Volume 1(1) 151 and Mukharji, J aptly observed in ITC Ltd. Vs. State of Karnataka, 1985 Supp SCC 476: 1985 Supp (1)SCR 145 ref.
 
Mr. M. Belayet Hossain, Advocate
..... For the Petitioner.
Mr. Md. Shahidul Islam, DAG
… For the Respondents
Mr. Mohammad Idrisur Rahman, Advocate
… For the Respondent No. 6

Writ Petition No. 315 of 2014
 
JUDGMENT
Syed Refaat Ahmed, J:
 
This Application arises in the context of a Rule in Mandamus issued as to why a direction should not be given upon the Respondent No. 2 to dispose of the Petitioner’s application dated 11.12.2013 (Annexure-‘G’) to consider the prayer for maintaining the allotment of the House No. 66/F (E-Class) by withdrawing the Memo No. 54/¢S- Azimpur/167(5) dated 5.12.2013 (Annexure-‘F’) and Memo No.  54/¢S- Azimpur/167 dated 5.12.2003 issued by Respondent No. 5, allotting the House No. 54/G(E-Class), Azimpur, Dhaka in favour of Petitioner by cancelling the earlier allotment of House No. 66/F(E-Class) (Annexure-‘F’) and/or pass such other or further order or orders as to this Court may seem fit and proper.
There is also a supplementary or an additional Rule that was issued on 2.9.2014 that will be visited in due course in this Judgment.

The Petitioner, a government functionary, was allotted a house bearing the address House No. 70/1-B(D-1), Azimpur, Dhaka vide Memo No. 70/1-B Azimpur/77 dated 8.2.2005 in her capacity as S.A.S. Superintendent, Dhaka Cantonment, Dhaka. Thereafter, she got allotment of House No. 57/E(E-Class), Azimpur in her capacity as Deputy Assistant Finance Controller, F.C. (Army, Pa-2), Dhaka Cantonment, Dhaka  vide Memo No. 57/E Azimpur/98 dated 15.4.2012 issued by the Respondent No. 5, Assistant Director, Directorate of Government Housing. However, the Petitioner not having been inducted into the possession of the house, the Respondent No. 5 by Memo No. 66/F-Azimpur/125 dated 9.5.2012 allotted afresh the property being House No. 66/F (E-Class), Azimpur, Dhaka in her favour. It is noted that the Petitioner is, however, yet to take possession of that property.

It has so transpired that while the allotment of 9.5.2012 remained current and valid with the Petitioner by that date having been  kept waiting for over a year and half in the hope that she would eventually be given possession of the property so allotted her, the Respondent No. 5 curiously, and without further explanation or prior notice to the Petitioner as a prior and current allottee, allotted the said property, i.e. House No. 66/F (E-Class), Azimpur Dhaka vide Memo No. 66/F, Azimpur/160/2 dated 26.11.2013 in the name of one Syeda Monjuara Sultana, Assistant Professor, Department of Zoology, Eden Women College, Dhaka, i.e. the Respondent No. 6.

It is only subsequent to this second allotment to the Respondent No. 6 that the Respondent No. 5 issued the Impugned Memo No. 54/¢S- Azimpur/167(5) or 54/G, Azimpur/167 dated 5.12.2013 in favour of the Petitioner in respect of House No. 54/¢S-Azimpur/157(5) or 54/G (E-Class) Azimpur, Dhaka by cancelling the earlier allotment of House No. 66/F (E-Class) Azimpur, Dhaka. The Petitioner filed an application on 11.12.2013 before the Respondent No. 2, Director, Directorate of Government Housing praying for maintaining the earlier allotment of House No. 66/F (E-Class), Azimpur dated 9.5.2012 in her name taking care to specifically request a withdrawal of the Memo dated 5.12.2013. It is noted that the Respondent No. 2 has yet to dispose of the said application.

It is against this backdrop that the Petitioner has stressed upon and has raised her core contention that the allotment of 9.5.2012 in her favour represents an undertaking given her by the Respondent No. 5. Fundamental to that undertaking, the Petitioner submits, is an assurance of a certain and predictable course of conduct to be pursued in due course in the regular discharge of administrative functions by the Respondent No. 5 that, in the circumstances, can be reasonably expected to culminate in the delivery of possession of the allotted property to the Petitioner.

It is also the crux of the Petitioner’s case that in discharging his administrative functions the Respondent No. 5 is expected to act fairly and reasonably, thereby, negating any possibility of him veering away or deviating from the regular course of conduct evidenced in and initiated by the issuance of the allotment letter of 9.5.2012 and doing something as is wholly unexpected in the facts and circumstances. But regrettably that is exactly what the Respondent No. 5 appears to have done by issuing the second letter of allotment of 26.11.2013 in favour of the Respondent No. 6 without prior notice to and consultation with the Petitioner.

Furthermore, the fact that she had been waiting for a year and a half, according to the Petitioner, also reflects the Petitioner patiently hoping that she shall eventually indeed be granted possession of the property in question as per the clear terms of the allotment of 9.5.2012 as was to all intents and purposes still extant, current and valid when the Respondent No. 6 was allotted the same property on 26.11.2013. Such introduction in the facts and circumstances of the Respondent No. 6 as a rival claimant to House No. 66/F (E-Class), Azimpur on 5.12.2013 establishes that the Petitioner’s long wait upon reliance of the initial allotment to her has been in vain and she has had, therefore, to act to her detriment relying on the representation so reflected in the allotment to her of 9.5.2012. It is, accordingly, argued by the learned Advocate for the Petitioner, Mr. M. Belayet Hossain that the Respondent No. 5 in particular and the other Respondents in general must now, therefore, be estopped from so unexpectedly altering their position and deviating from an expected course of action as evident in the memo dated 9.5.2012.

The learned Advocate for the Respondent No. 6, Mr. Mohammad Idrisur Rahman while acknowledging that the cancellation of the Petitioner’s initial allotment came belatedly on 5.12.2013 in a manner as is opaque and peremptory given that no reason is cited for the cancellation, submits nevertheless that by the very terms of the Rule Nisi issued this Application may be disposed of in a manner favourable to the Petitioner but limited to directing the disposal of the Petitioner’s application dated 11.12.2013 to the Respondent No. 2, Director, Directorate of Government Housing for maintaining her initial allotment. Mr. Idrisur Rahman argues that it would not be for this Court in judicial review in disposing the Rule Nisi in Mandamus to proceed further and direct the concerned Respondents as to the manner in which such application may be disposed of or indeed what the outcome of such disposal shall be. It is in this context that Mr. Rahman submits that the Court would be exceeding the perimeter of the Rule Nisi issued by additionally determining the legality or not of the Memo of cancellation dated 5.12.2013.

By referring to an application for vacating the Order of Stay on behalf of the Respondent No. 6, Mr. Rahman has stressed that in this factual milieu this Court may further not lose sight of the fact that the relative ranking of the official status of the Petitioner and the Respondent No. 6 in fact better entitles the latter by reason of her length of cadre service, pay scale, rank and status as Assistant Professor to have an edge over the Petitioner. In this regard he has referred to Rule 4 of the Bangladesh Allocation Rules of 1982 contending that the Respondent No. 6 by reason of her higher pay scale has a far superior right to be allotted an ‘E’ Type property as the case property than the Petitioner.

Upon considering the facts and circumstances as above this Court is immediately reminded of Lord Denning’s dictum in Central London Property Trust Ltd. vs. High Trees House Ltd.  Reported in (1947) 1KB 130 thus:

“Where parties enter into an arrangement which is intended to create legal relation between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promise, the Court will treat the promise as binding on the provisions to the extent that it will not allow him to act inconsistently with it…”

This Court notes that the notion of reasonableness of administrative action central to Lord Denning’s dictum above was of course enunciated by Lord Greene in Associated Provincial Picture House Ltd. vs. Wednesbury Corp reported in (1948) 1Kb 223, and (1947) 2All ER 680. Furthermore, Lord Diplock in the CCSU Case before the House of Lords reported in (1985) 1 AC 374 and (1984) 3 All ER 935 HL aptly equated irrationality as constituting Wednesbury unreasonabless. The House of Lords, therefore, in the CCSU Case found irrationality to be evident in

“a decision so outrageous in its defiance of logic… that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

This Court has no reservation in accepting that the facts in this present case represent a classic example of such irrational behavior peremptorily taken as evident both in the allotment of the case property on  26.11.2013 to the Respondent No. 6 and subsequent cancellation of the Petitioner’s initial allotment of 9.5.2012 by the Memo of 5.12.2013. 

It is in that context that a catena of cases cited by Mr. M. Belayet Hossain ranging from Confederation of Ex-Servicemen Association vs. Union of India reported in AIR 2006 SC 2945, Syed SM Hasan vs. Bangladesh reported in 60 DLR (AD)(2008),76 to Union of India vs. Hindustan Development Corpn. reported in AIR SC 1994, 988  finds merit for consideration by this Court as reflecting ratio decidendii inspired by the dicta of Lords Denming, Greene and Diplock cited above. It is in the Indian jurisdiction, in particular, that these dicta have been relied upon to broaden the notion of administrative fair play as an essential component of discharge of public service. Discharge of administrative functions with transparency and accountability have emerged as the cornerstone of establishing Rule of Law from which no derogation is permissible. Lapses in this regard marked by arbitrary exercise of discretionary power, thereby, adversely affecting individual interests are readily made subject to judicial review. The objective here being that fair administration must always live up to the legitimate expectation of regularity in administrative functions achieved chiefly by aiming at serving both individual and the larger public interest.
The Indian Supreme Court, in particular, has visited these concepts admirably and extensively in several cases of which those reported in AIR 1996 SC 2410 and AIR SC 1994, 988 prove to be particularly noteworthy to this Court.

In Shangrila Food Products Ltd.vs. L.I.C. of India reported in AIR 1996 SC 2410, the Indian Supreme Court found on notions of honesty, integrity and fair play as enure to the benefit of the main constituents of administrative decisions, i.e. an affected party thus:

“…This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief”
 
The Supreme Court had indeed earlier made a broad survey of the centrality of the concept of “legitimate expectation” in the entire debate on good administration in Union of India vs. Hindustan Development Corpn. reported in AIR SC 1994, 988 thus:  

“There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is ‘fair play in action.’ Due observance of this obligation as part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and given due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount o an abuse or excess of power apart from affecting the bona fides o the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and given due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law.”

In so enunciating the concept of legitimate expectation the Supreme Court subscribed to its classic interpretation in the English jurisdiction thus:

            “In Halsbury’s Laws of England, Fourt Edition, Volume 1(1) 151, a passage explaining the scope of “legitimate expectations” runs thus:
            “81, Legitimate expectations. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.
            The existence of a legitimate expectation may have a number of different consequentces; it may give locus standi to seek leave to apply for judicial review, it may mean that the authority ought not to act so as to defeat the expectation without some overriding reason of public policy to justify its doing so;”

It is predicated on the enunciation above of safeguarding individual interests against the administrative behemoth that the Indian Supreme Court further invoked the factor of public interest served by an accountable and transparent decision-making machinery thus:

  “Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant.”

Sadly, this case fails in all respect to live up to the standards of good and sound administration as comes across in the dicta above. Devoid of transparency, shorn of reasons given, marked by absolute disregard of the Petitioner’s interests, and resulting in a decision unilaterally made, and peremptorily so, the Impugned Order of cancellation and re-allotment reeks of decision-makers acting arbitrarily at their own sweet will. This Court finds that this state of affairs does not indeed bode well for good public administration or indeed public interest.

In the context above, and contrary to what the learned Advocate for the Respondent No. 6 has sought to stress upon by highlighting the limited scope for intervention in Mandamus, it is first and foremost to be noted in the facts and circumstances that the Petitioner’s application of 11.12.2013 to the Respondent No. 2, as reflected in Prayer ‘A’ of this Writ Petition and resultantly transported into the Rule Nisi, importantly contemplates a withdrawal of the Annexure- ‘F’ Memo No. 54/G, Azimpur/167 dated 5.12.2013 as is in evidence of a cancellation of her earlier allotment. It is this Court’s opinion that Prayer ‘A’ so construed is not one of Mandamus simpliciter but significantly reflects an impugnment of the Annexure-‘F’ Memo of 5.12.2013 in additionally seeking its cancellation/withdrawal precisely because the Petitioner deems its issuance and continued effect to be without lawful authority and of no legal effect. Indeed, the cancellation of the Memo of 5.12.2013 appears to this Court to be a prerequisite for considering the Petitioner’s representation as evident in her application to the Respondent No. 2 dated 11.12.2013. That intent of the Petitioner for withdrawal and cancellation of the Memo of 5.12.2013 is clearly further evident in Prayer ‘B’ of the Writ Petition in which she has expressly sought ancillary relief to be granted in the form of being inducted into the possession of the disputed case property being House No. 66/F (E-Class), Azimpur, Dhaka. In other words, the Petitioner’s prayer for consideration of her application dated 11.12.2013 clearly, in this Court’s opinion, presupposes and is predicated upon the illegitimacy of the action of the Respondent No. 5 in issuing the cancellation Memo of 5.12.2013 as well as the second allotment of the same property issued on 26.11.2013 in favour of the Respondent No. 6.

There is indeed found no constraints for this Court to mould its response to the Petitioner’s case in a manner where Orders in Mandamus and Certiorari may issue in tandem should the facts so demand. This combination of Certiorari and Mandamus by which a decision can be quashed and simultaneously a direction may ensue for a matter to be considered in accordance with law is known as “certiorarified mandamus”. This Court holds that such a moulding of relief becomes necessary when equity needs to be served and there is need for an appropriate remedy in judicial review to evolve in the facts and circumstances to further the course of justice within the available constitutional range. As held in Supreme Court Bar Assn vs. Union of India reported in (1998) 4 SCC 409 the Court may indeed balance equities between conflicting claims of litigating parties by “ironing out the creases” as it were. Indeed, Mukharji, J aptly observed in ITC Ltd. Vs. State of Karnataka reported in 1985 Supp SCC 476: 1985 Supp (1)SCR 145 that:

            ““Thou shall not do’t” used to be the previous form of remedy encouraged by courts. But the new attitude is towards positive affirmative actions, directing people or authorities concerned that “thou shall do’t” in this manner.”

This Court, therefore, see no reason why an Order in Certiorarified Mandamus will not issue requiring the Respondents to dispose of the Petitioner’s application dated 11.12.2013 in a manner wholly favourable to her and in keeping with the terms and tenor of the original allotment in her favour dated 9.5.2012. This Court is equally inclined now to declare both the allotment to Respondent No. 6 of 26.11.2013 and the cancellation Memo of 5.12.2013 to be without lawful authority and of no legal effect. Resultantly both Orders are, hereby, quashed.

It is noted that the additional Rule of 2.9.2014 was issued by this Court on the following terms:

“Let an additional Rule be issued calling upon the respondents to show cause as to why issuance of the Memorandum being No. A: Ko: Writ-9/2014/597 dated 26.08.2014 issued by respondent No. 7 directing the respondent No. 3 not to allot House No. 66/F (E-Class), Azimpur, Dhaka in anybody’s favour during pendency of the Rule issued in Writ Petition No. 315 of 2014 (annexure- H) shall not be declared to have been without any lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

That intervention by this Court was intended to be an act of restraining any governmental action pertaining to the disputed case property in any manner prejudicial to the Petitioner’s interest while the initial Rule Nisi of 2.1.2014 awaits final substantive disposal. The Impugned Memo of 26.8.2014 reads to this Court as reflecting an act short of being contumacious of this Court’s authority and more aptly as an act of overly zealous set of Respondents acting out of misplaced and inappropriate concern. By that reason, this Court finds that Impugned Order in this regard to be, consequentially, without lawful authority and of no legal effect as well.

Given the findings and observations above this Court is now inclined to favourably dispose of this case. Accordingly, the Respondent Nos. 2 and 5, in particular, and all the Respondents, in general, are, hereby, directed to dispose of the Petitioner’s application dated 11.12.2013 in a manner that would ensure a due and proper delivery of possession of the case property being House No. 66/F (E-Class), Azimpur, Dhaka in her favour no later than a period of 2 (two) weeks from the date of receipt of a certified copy of this Judgment and Order. All Respondents in this regard shall note that the allotment of 26.11.2013 in favour of the Respondent No. 6 and the cancellation Memo of 5.12.2013 are, hereby, quashed and set aside as being illegal, without lawful authority and of no legal effect.

The Respondent Nos. 2 and 5 and all the Respondents in general shall proceed on the basis of the above findings of this Court in determining the favourable disposal of the Petitioner’s application dated 11.12.2013 with the result that the Petitioner at the end of the day is given an unqualified possession of the case property being House No. 66/F (E-Class), Azimpur, Dhaka wholly unencumbered of any rival claim whatsoever including that of the Respondent No. 6.

In the result, both the Rules are made absolute with the observations and directions above.

There is no Order as to costs.

Communicate this Order at once. 

        Ed.