North South University and others Vs. Government of Bangladesh and others 2017 (2) LNJ 36

Case No: W. P. Nos. 9562-9564 of 2008; W. P. Nos. 9566-9567 of 2008 and W. P. Nos. 11545-11546 of 2015 With Writ Petition No. 1969 of 2009 With W.P. Nos. 1131 of 2009; W.P. No. 5176 OF 2010; W.P. No. 3371 of 2015; W.P. No. 3423 OF 2012; W.P. No. 986 of 2011 and 4

Judge: Sheikh Hassan Arif. J.

Court: High Court Division,

Advocate: Mr. Omar Sadat, Mr. S Rashed Jahangir,

Citation: 2017 (2) LNJ 36

Case Year: 2016

Appellant: North South University and others

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-16

HIGH COURT DIVISION

 

(SPECIAL ORIGINAL JURISDICTION)

 

Sheikh Hassan Arif, J.

And

Bhishmadev Chakrabortty, J.

Judgment on

05.09.2016

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North South University

. . . Petitioner.

-Versus-

Government of Bangladesh and others.

. . . Respondents

In W. P. Nos. 9562-9564 of 2008; W. P. Nos. 9566-9567 of 2008 and W. P. Nos. 11545-11546 of 2015.

With

The University of Asia pacific and another

. . . Petitioner

-Versus-

Government of Bangladesh and others.

. . . Respondents.

In Writ Petition No. 1969 of 2009

With

The University of Asia pacific

. . . Petitioner.

-Versus-

Government of Bangladesh and others.

. . . Respondents.

In W.P. Nos. 1131 of 2009; W.P. No. 5176 OF 2010; W.P. No. 3371 of 2015; W.P. No. 3423 OF 2012; W.P. No. 986 of 2011 and 4878 of 2013.

With

North South University and another

. . . Petitioner.

-Versus-

Government of Bangladesh and others.

. . . Respondents.

In W.P. No. 8507 of 2010 and W.P. No. 987 OF 2011

With

International University of Business Agricultural and Technology (IUBAT)          

. . . Petitioner.

-Versus-

Government of Bangladesh and others.

. . . Respondents.

In W.P. No. 6861 of 2012; W.P. No. 12558 of 2012; W.P. No. 2110 of 2013; W.P. No. 5793 of 2014; W.P. No. 5794 of 2014; W.P. No. 5795 of 2014; W.P. No. 10769 of 2014 and W. P. No. 9733 of 2015

With

Ahsanullah University of Science & Technology and another.

. . . Petitioner.

-Versus-

Government of Bangladesh and others                                              

. . . Respondents.

 In W.P. No. 8985 of 2010

With

University of Science and Technology, Chittagong (USTC)

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 10847 of 2015

With

The University of Liberal Arts Bangladesh and others

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W. P. No. 8697 of 2011; W.P. No. 8930 of 2011; W. P. No. 3681 of 2013; W.P. No. 3682 of 2013 and W.P. No. 6404 OF 2014

With

Asian University of Bangladesh, a private university having its address at House No.25, Road No.5, Sector No. 7, Uttara, Dhaka, represented by its Vice Chancellor.

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 6177 of 2013

With

Southern University Bangladesh

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 1891 of 2015

With

Daffodil International University

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 2510 of 2015

With

Eastern University, a private university having its address at House No. 15/2, Road No.3, Dhanmondi R/A, Dhaka-1205.

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. Nos. 4048-4050 of 2013 and W.P. No. 14609  of 2012

With

University of Liberal Arts Bangladesh

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 12885 of 2015

With

Word University of Bangladesh

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents

In W.P. No. 13246 of 2015; In W. P. No. 2682 of 2016; W.P. No. 8187 of 2015 and W. P. No. 11195 of 2014

With

Independent University, Bangladesh

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 10929 of 2014; W.P. No. 9934 of 2015

With

Southeast University

. . . Petitioner.

-Versus-

Government of Bangladesh and others

. . . Respondents.

In W.P. No. 11840 of 2015

 

Constitution of Bangladesh, 1972

 

Articles 58D (repealed) and 102

 

Admittedly, the caretaker government as contemplated  by virtue now repealed 13th Amendment to the Constitution was created for the purpose of holding free and fare election amongst political parties in Bangladesh, the tenure of the said government being 90 days. By virtue of the provisions under Article 58D of the then Chapter-IIA of part IV of the Constitution, the Caretaker Government was only authorized to do routine works. However, in some cases, the said Caretaker Government, which functioned for about two years, admittedly transgressed their constitutional perimeter by acting beyond their jurisdiction and authority. However, while the said Caretaker Government, under the Constitution, was at all authorized to continue for such a long period of two years beyond the mandate of the Constitution is another hot issue to be determined by this Court in a proper case, it cannot be submitted reasonably by the Government side that a decision like imposition of tax on private universities and creation of classification between private and public universities in respect of tax liabilities was part of routine works of the then Caretaker Government. . . . (37 and 39)

 

Constitution of Bangladesh, 1972

 

Article 102

 

When the private universities were established by virtue of the Act of 1992, they were, from the very beginning, enjoying such tax exemption. The Philanthropists or the Trusts which contemplated at the relevant time to establish such private universities in order to fill up the gap created by the lack of public universities did also have legitimate expectation that such private universities would be tax free universities.          . . . (41)

 

Constitution of Bangladesh, 1972

 

Articles 83 and 102

 

When the tax can only be imposed by or under the authority of an Act of parliament by virtue of Article 83 of the Constitution, an un-elected Caretaker Government under no circumstances can impose such tax on the private universities or higher education in the garb of technically using the word “re-fixation” or “reduction” from general rate. Therefore, this Court is of the view that, the said SROs, namely SRO Nos. 156 and 158 of 2007 suffered from the following improprieties from the beginning:

 

(a) they were not in any way related to the holding of national election,

 

(b) decisions to withdrawn tax exemption from private universities and thereby to impose tax thereon were major policy decisions and as such were not part of routine works of the then caretaker government as mandated by the then relevant provisions of the Constitution and that-

 

(c) they were not that urgent decision that the caretaker government could not wait for the elected government to take such policy decision.

 

Accordingly, the said impugned SROs of 2007 were issued in clear violation of the mandate of the Constitution insofar as the same related to the functions of the Caretaker Government and, thus, the same were ultra vires the then relevant provisions of the Constitution. . . . (42)

 

Constitution of Bangladesh, 1972

 

Articles 27, 31 and 102

 

When the said majority number of students have been compelled to study at private universities at high cost because of the lack of sufficient number of public universities with almost free education therein, the classification created by the government in between public and private universities insofar as the tax liabilities are concerned cannot be said to be reasonable classification. Yes, Private Universities are of different class altogether. But, are the students therein different? The answer is ‘No’. They all are our children having equal right to education and entitled to equal protection of law as those of Public Universities as guaranteed under Articles 27 of the Constitution.  No such reasonable nexus is apparent from the said SROs. Thus, such discrimination is clearly hit by Articles 27 and 31 of the Constitution. It is rather unfortunate that when a non-elected Caretaker Government (widely known as army backed government) imposed such tax liability in 2007 on the said private universities and thereby put more hindrances to the smooth education of the students of middle class and families of limited means, the elected government in 2010 has followed of the same course hoodwinking the Legislature and did not even place this issue before the elected members of the Parliament.        . . . (45)

 

Constitution of Bangladesh, 1972

 

Articles 27, 31 and 102

 

Discrimination as regards tax liabilities between private and public universities being a major policy decision, and imposition of tax on private universities, in whatever names (reduction or re-fixation), being a major political policy decision, it should have been placed before the Parliament for the view of the elected M.Ps. However, the government has apparently issued the said SRO in 2010 in the same mechanical terms as used in the SROs issued by the nonelected Caretaker Government in 2007. Therefore, this Court is of the view that, this classification is unreasonable classification in the facts and circumstances and background of the cases .It has already been noticed that, by issuing the said SRO No. 268 in 2010, the government even technically imposed general rate of tax @35% on the public universities. This reveals that even the concerned officials of the government did not apply their minds in drafting or in issuing the impugned SRO No. 268 dated 01.07.2010. On this ground as well, this SRO of 2010 should be knocked- down.  . . . (46)

 

Constitution of Bangladesh, 1972

 

Articles 27, 31 and 102

 

Creating discrimination between the private universities and public universities as well as between their students, insofar as tax liabilities are concerned, is a major political policy decision and as such the same must be placed before Parliament for seeking opinion of the elected representatives of the people of this country. The same having not been done before issuing the impugned SROs, they should be knocked-down on the principle that the delegatee-government acted beyond the power of delegation.  ...(47)

 

Constitution of Bangladesh, 1972

 

Articles 15, 17, 27, 31, 32 and 102

 

In view of the said fundamental principles of State policy as enunciated under Articles 15 and 17 as well as the fundamental right to life as guaranteed under Article-32 of the Constitution and the unreasonable discrimination between private and public universities being hit by Articles 27 and 31 of the Constitution and the lack of  delegatee-government’s power to issue the impugned SROs, we find merit in the Rules and as such the same should be made absolute.                                           . . . (54)

 

Pirzada Syed Sariatullah and others Vs. Government (Writ Petition No. 2207/2008; Unni Krishnan, J.P. Vs. State of A.P., AIR 1993 S.C. 2178; Chameli Singh and others Vs. State of U.P, AIR1996 S.C. 1051; Manzil Morshed Vs. Bangladesh and others, 15 BLC (2010)-351; NBR Vs. Advocate Zulhas Uddin Ahmed and others, 18 BLC (AD)-52; Kudrat-E-Elahi Vs. Bangladesh, 44 DLR (AD); Eldowney Vs. Fords, (1969) 3 WLR 179; Enamul Haq (Md) Vs. Jatiyo Bishwabiddalay and others, 59 DLR-556; Azizuddin Industries Vs. Government of Pakistan, 18 DLR-92; Chief Controller of Imports and Exports Vs. Hussain Ali Shah A. Fazlani, PLD 1960 SC-310; Income Tax Reference Application Nos.159-162 of 2011 and 511 of 2004, 20 BLC (2015)-457; Governing Body of Rangaraya Medical College Vs. Income Tax Officer, A-Ward, Circle I, Kakinada [Income Tax Report, Vol-117, Page-284]; Unni Krishnan J.P. Vs. State of Andra Pradewsh, AIR-1993 (SC)-2178; Manzil Morshed Vs. Bangladesh and others, 15 BLC-351 and NBR Vs. Advocate Zulhas Uddin Ahmed, 18 BLC (AD)-52 ref.

 

Mr. M. Shakhawat Hossain with

 

Mr. Muhammad Anjarul Hasan with

 

Mr. Shah Mohammad Ashiqul Murshed, Advocates.

 

. . . For the petitioners

 

(In Writ Petition Nos. 9563 of 2008, 9562 of 2008, 9564 of 2008, 9566 of 2008, 9567 of 2008, 1131 of 2009, 1969 of 2009, 5176 of 2010, 8985 of 2010, 8507 of 2010, 986 of 2011, 987 of 2011, 3423 of 2012, 12558 of 2012,  6861 of 2012, 2110 of 2013, 4878 of 2013, 5793 of 2014, 5794 of 2014, 5795 of 2014, 10769 of 2014, 11545 of 2015, 11546 of 2015, 10847 of 2015 and 9733 of 2015.)

 

Mr. A.F. Hassan Ariff with

 

Mr. Omar Sadat with

 

Mr. Jahangir Jamadder, Advocates

 

. . .For the petitioners

 

(In Writ Petition Nos. Writ Petition Nos. 12885 of 2015, 8697 of 2011, 8930 of 2011, 3681 of 2013, 3682 of 2013, 6404 of 2014, 8187 of 2015, 11195 of 2014, 13246 of 2015 and 2682 of 2016.)

 

Mr. Kazi Akhtar Hossain, Advocate

 

. . . For the petitioners

 

(In Writ Petition Nos. 6177 of 2013, 4048 of 2013, 4049 of 2013 and 4050 of 2013 and 14609 of 2012)

 

Mr. Hassan M.S. Azim, Advocate

 

. . . For the petitioners

 

(In Writ Petition Nos. 1891 of 2015, 2510 of 2015)

 

Mr. Rafiq-Ul Haq with

 

Ms. Rabeya Jamali with

 

Mr. Mehran Morshed, Advocates.

 

. . . For the petitioners

 

(In Writ Petition Nos. 10929 of 2014 and 9934 of 2015.)

 

Mr. Ashik Al Jalil, Advocate

 

. . . For the petitioner

 

(In Writ Petition No. 11840 of 2015.)

 

Mr. Ashikur Rahman, Advocate

 

. . . For the petitioner

 

(In Writ Petition No. 3371 of 2015)

 

Mr. S. Rashed Jahangir, D.A.G with

 

Ms. Mahfuza Begum, AA.G. with

 

Mr. Pratikar Chakma, A.A.G with

 

Ms. Shuchira Hossain, A.A.G

 

. . .For the respondent No.3

 

(In W.P. Nos. 9562 of 2008, 9564 of 2008, 9566 of 2008, 9567 of 2008, 12558 of 2012, 8985 of 2010 and 2110 of 2013)

 

JUDGMENT

 

Sheikh Hassan Arif, J, Since the questions of law and facts involved in the aforesaid writ petitions are almost same, they have been taken up together for hearing, and are now being disposed of by this single judgment.

 

2.            Rules in the aforesaid three bunch of writ petitions were basically issued in two fold terms, namely, calling upon the respondents including the government of Bangladesh to show cause as to why the SRO No. 156-Ain/Aikor/2007 dated 28.06.2007 and SRO No. 158-Ain/Aikor/2007 dated 28.06.2007 issued by the government under Section 44(4) (b) of the Income Tax Ordinance, 1984 withdrawing the tax exemptions in favour of the petitioner universities/educational institutions and thereby imposing 15% tax on their income relating to assessment years 2008-2009 to 2010-2011 and as to why the SRO No. 268-Ain/Aikor/2010 dated 01.07.2010 issued by the government under the same provisions purportedly re-fixing the tax payable by the said petitioners at the rate of 15% in respect of assessment years 2011-2012 and onwards should not be declared to be without lawful authority and are of no legal effect and as to why the respective assessment orders, followed by demand notices as well as notices demanding advance taxes from them pursuant to the said SROs, should also not be declared to be without lawful authority.

 

3.            SHORT  BACKGROUND FACTS:-

 

Short facts, relevant for the disposal of the Rules, are as follows:-

 

(a)   First Bunch of Writ Petitions:

 

North South University (NSU) filed five writ petitions (Writ Petition Nos. 9562, 9563, 9564, 9566 and 9567 of 2008), University of Asia Pacific (UAP) filed three writ petitions (Writ Petition No. 1131 of 2009, Writ Petition No. 1969 of 2009 and Writ Petition No.5176 of 2010) and some other universities filed some other writ petitions (Writ Petition Nos. 2682 of 2016, 13246 of 2015 and 12885 of 2015) calling in question the said SRO No. 156 and SRO No. 158 both dated 28.06.2007, concerned assessment orders and demand notices demanding advance taxes pursuant to the said SROs.

 

(b)   Second Bunch of Writ Petitions:

 

North South University (NSU) filed four writ petitions (Writ Petition No.11545 of 2015, Writ Petition No. 11546 of 2015, Writ Petition No. 8507 of 2010 and Writ Petition No. 987 of 2011), International University of Business Agricultural and Technology (IUBAT) filed eight writ petitions (Writ Petition No.6861 of 2012, Writ Petition No. 12558 of 2012, Writ Petition No. 2110 of 2013, Writ Petition No.5793 of 2014, Writ Petition No. 5794 of 2014, Writ Petition No. 5795 of 204, Writ Petition No. 10769 of 2014 and  Writ Petition No. 9733 of 2015), University of Asia Pacific filed 3 (three) Writ petitions (Writ Petition No. 3423 of 2012, Writ Petition No. 986 of 2011 and Writ Petition No. 4878 of 2013),   Ahsanullah University of Science & Technology (AUST) filed one writ petition (Writ Petition No.8985 of 2010), University of Science and Technology, Chittagong (USTC) filed one writ petition (Writ Petition No.10847 of 2015), and some other universities filed some other writ petitions (Writ Petition Nos. 3371 of 2015, 2510 of 2015, 1891 of 2015, 8697 of 2011, 6177 of 2013, 11195 of 2014, 8930 of 2011, 3681 of 2013, 3682 of 2013, 6404 of 2014, 4048 of 2013, 4049 of 2013, 4050 of 2013 and 14609 of 2012) calling in question the legality of the aforesaid SRO No. 268 dated 01.07.2010, by which the earlier SRO No. 158 dated 28.06.2007 was repealed by the government and thereby tax @ 15% was imposed on the private universities and colleges except the public universities. They also challenged the concerned assessment orders, demand notice demanding

 

advance tax as well as they sought refund of advance tax for some income years and not to deduct tax on FDR and also sought relief against account freezing.  

 

(c)    Third Bunch of Writ Petitions:

 

Some universities including the World University filed some writ petitions (Writ Petition Nos. 11840 of 2015, 10929 of 2014, 8187 of 2015 and 9934 of 2015) calling in question the legality of both sets of SROs, namely SRO Nos. 156 and 158, both dated 28.06.2007 and SRO No. 268 dated 01.07.2010 as well as proceedings against them for alleged tax evasion and demand of advance tax.

 

4.            Supplementary Rule:

 

In Writ Petition Nos. 9563 of 2008, 9562 of 2008, 9564 of 2008, 9565 of 2008, 9566 of 2008, 9567 of 2008 and 1131 of 2009, it was further stated by the petitioners that as per Order No.2 dated 11.01.2007 (Gazetted on 13. 01. 2007) passed by the Hon’ble President  under Article 141 C (1) of the Constitution, the hearing of all cases relating to enforcement of fundamental rights was suspended till the Emergency was lifted. Thus, since the petitioners filed the said writ petitions during the period of emergency, they could not invoke fundamental rights under Articles 26, 27, 31 and 32 read with Articles 15, 17, 19 and 83 of the Constitution of the People’s Republic of Bangladesh. Hence, the Petitioner (North South University) in Writ Petition No. 9563 of 2008 and the Petitioner (University of Asia Pacific) in Writ Petition No. 1131 of 2009 obtained supplementary Rules from this Court  invoking the issue of violation of fundamental rights by the said SROs and impugned actions of tax authorities pursuant to the same.

 

5.            Petitioners’ Descriptions (deduced from their petitions):

 

The North South University, as petitioner, altogether filed Writ Petition Nos. 9562 of 2008, 9563 of 2008, 9564 of 2008, 9566 of 2008, 9567 of 2008, 8507 of 2010, 987 of 2011, 11545 of 2015 and 11546 of 2015 stating, amongst others:

 

i)        That the North South University (NSU) is founded by North South University Foundation (hereinafter also referred to as the “said foundation”). The said Foundation is a charitable organization set up for the promotion of education as incorporated under the Societies Registration Act, 1860. The Foundation was registered on 13-05-1992. Under the said Act of 1860, the Foundation cannot act on commercial basis.

 

ii)      That the petitioner (NSU) is the first generation Private University in Bangladesh and was established by a group of philanthropists, industrialists, bureaucrats and academics. The Government of Bangladesh approved the establishment of the petitioner in the year 1992 under the then Private University Act, 1992. The University follows the American system with all its distinctive features, semesters, credit hours, letter grades, one examiner system and so on. Its curricula, when first introduced, were reviewed by relevant departments of the University of Illinois, Urbana-Champaign, and University of California at Berkeley, USA. The academic programs are continually updated and adapted to meet the local needs with international standard.   

 

iii)    That the petitioner (NSU) is accredited by the University Grants Commission of Bangladesh (UGC), the accreditation authority of the Ministry of Education, Government of the People’s Republic of Bangladesh. It is recognized by many world-class universities of USA, UK, Canada, Australia, India, China, South Korea and Malaysia. The credits obtained at NSU (petitioner) are accepted in most of the respectable universities of USA, Canada, Australia and other countries. Petitioner’s graduates have been accepted in the Graduate programs of Harvard, Cornel, University of Pennsylvania, and other well-known universities. Graduates of the petitioner are studying for higher degrees at the York University, Canada, with Scholarship provided by York University.

 

iv)    That the petitioner (NSU) maintains academic collaboration with many foreign universities. Notable among those universities are (1) St. Xavier University, Chicago, USA; (2) Indian University of Pennsylvania, USA; (3) Luton University, UK; (4) University of Delwaware, USA; (5) University of Maryland, USA; (6) Quest University, Canada; (7) Yunnan University, China; (8) Multimedia University, Malaysia; (9) Wayne State University, USA; (10) University of South Australia, Australia, and (11) Kyung Hee University, South Korea. The petitioner has also research collaborations with world class research institutes, such as International Center for Diarrhoeal Diseases Research (ICDDRB), Dhaka in its various academic programs in Biotechnology, Microbiology and Public Health.

 

6.         The University of Asia Pacific (UAP), as petitioner, altogether filed writ petition Nos. 1131 of 2009, 1969 of 2009, 5176 of 2010, 986 of 2011, 3423 of 2012 and 4878 of 2013 stating, inter-alia, that:

 

i)        the petitioner (UAP) is founded by the University of Asia Pacific Foundation (hereinafter also referred to as the “said Foundation”). The said Foundation is a charitable company set up for the promotion of education as incorporated under Section 28 of the Companies Act, 1994 and as such the said Foundation cannot act on commercial basis.

 

ii)      the petitioner (UAP) is also the first generation Private University in Bangladesh and was established by a group of philanthropists, industrialists, bureaucrats and academics. The Government of Bangladesh, through the Ministry of Education, approved the establishment of the petitioner in the year 1992 under the then Private University Act, 1992 (as amended). At present, Dr. Jamilur Raza Chowdhury is the Vice Chancellor of the University of Asia Pacific.

 

iii)    The petitioner (UAP) is accredited by the University Grants Commission of Bangladesh (UGC). Its curricula have been approved by the University Grants Commission (UGC) and the Government of Bangladesh. Presently, it is offering Undergraduate program in 9 (nine) disciplines and 6(six) Graduate Programs. Academic programs are conducted on semester basis. Senior faculty members of the petitioner-university are with Ph.D./MBA/MSS from renowned universities of USA, UK, Canada, Australia and other developed countries. The academic programs of the petitioner (UAP) are continually updated and adapted to meet the local needs with required international standard.   

 

7.            The International University of Business Agriculture and Technology (IUBAT), as petitioner, altogether filed Writ Petition Nos. 6861 of 2012, 12558 of 2012 ,  2110 of 2013 , 5793 of 2014, 5794 of 2014, 5795 of 2014, 10769 of 2014 and  9733 of 2015 stating, inter-alia, that:

 

i)        the petitioner (IUBAT) is the first private university in Bangladesh and was founded by Prof. Dr. M. Alimullah Miyan, ex Director of the Institute of Business Administration, Dhaka University. The Petitioner submitted a formal representation to the Ministry of Education, Government of Bangladesh on 27.07.1989 for the establishment of a non-profitable private university. In fact, private universities in Bangladesh are the brain-child of Prof Dr. Mian who worked relentlessly with the concerned Government agencies for establishing private universities in Bangladesh. He gave his invaluable support and experiences of different counties to the Government for the enactment of the Private Universities Act, 1992.

 

ii)      the petitioner (IUBAT) is geared to effectively contribute to agro-economic, technological and social development of Bangladesh. The aim is to promote higher professional education with relevance to those growth areas of the economy with required qualified human resources and create a climate of professionalism and scholasticism to promote further development of the society. The petitioner (IUBAT) honestly believes that the fundamental economic problems of the society can be tackled by people through an investment in human resources development and in the process of promoties self reliance in agro-economic development and higher education in the field of science and technology.

 

iii)    the petitioner (IUBAT) started its activities before the enactment of the Private University Act 1992. When the petitioner submitted its proposal to the Ministry of Education for obtaining no objection for establishing the said University on July 27, 1989, the petitioner (IUBAT) clearly stated the objects of the said University including its non-profitable nature in the following terms :

 

“IUBAT shall be a non-profitable, non-Government autonomous organization with its own charter and regulations and shall be sponsored by the human development society which is a duly registered NGO”.

 

iv)    in the proposal forwarded by the petitioner (IUBAT) to the Ministry of Education it was also clearly mentioned that it was to be operated under a non profit foundation type of concept outside the influence of the existing institutions as well as outside the influence of vested groups.

 

v)      that having regard to the proposal of the petitioner (IUBAT), the Ministry of Education vide its letter dated 12.09.1991 also recognized the University as a non-profit private university/ institution in collaboration with its foreign Universities. The Ministry of Education further, by its letter dated 27.10.1992, asked the University to comply with its activities in terms of the Private University Act, 1992. Finally, after complying with the provisions of the Private University Act, 1992, the Ministry of Education vide its letter dated 07.08.1998 formally approved the Petitioner University under the Private University Act, 1992. After the enactment of the Private University Act in 1992 and its amendment in 1998, the petitioner (IUBAT) started its academic journey. Its Degree programs started in 1992 in collaboration with Assumption University, Bangkok, Thailand.

 

8.            The Ahsanullah University of Science & Technology (AUST), as petitioner, filed writ petition Nos. 8985 of 2010 stating that:

 

i)        the petitioner No.1, Ahsanullah University of Science & Technology (AUST), is a private university founded and sponsored by the Dhaka Ahsania Mission. Dhaka Ahsania Mission is a non-profitable organization operating voluntarily in various social welfare activities in Bangladesh. The said Mission was established in 1958 by Hazrat Bahadhur Ahsanullah, an outstanding educationist and social reformer of undivided India. With his own vision of a better society, characterized by moral and spiritual values of the highest humanisms, he established the said Mission.

 

ii)      the petitioner No.1 (AUST) is the first private Engineering University in Bangladesh. The Government of Bangladesh, represented by the Ministry of Education, approved the establishment of the petitioner university (AUST) on 02.05.1995 under the Private University Act, 1992 (as amended). The petitioner No.1 provides education for undergraduate and post-graduate level at a reasonable cost characterized by academic excellence in a range of subjects that are particularly relevant to the present and anticipated needs of the Country.

 

iii)    petitioner No. 1 (AUST) is a non profit, non-sectarian private university specialized on engineering and science based education. The aim of the petitioner No.1 is to provide students with opportunities, resources and expertise to achieve academic excellence with a stimulating and supporting environment. It is the premier centre of excellence in science, engineering and technology by creating and transferring knowledge with human touch to the young generations for enhancing the quality of life in Bangladesh and beyond.

 

iv)    Petitioner No.2 is Mr. Md. Afzal Hossain, son of late Md. Emlak Hossain. He is a student of petitioner No.1 and at present he is studying in the Department of Textile Technology. He comes from a very poor family. His father late Md. Emlak Hossain used to work as a clerk of Huq & Company, a renowned law Chamber headed by Senior Advocate Barrister Rafique-ul Haque. After the death of his father, the family of the petitioner No. 2 has fallen in hardship and became a family of very limited financial means and as such his housewife mother became unable to pursue his educational expenses without the help of their well-wishers. The petitioner No.2 is a very brilliant student. After completing his S.S.C. and H.S.C., he got himself admitted in the petitioner No.1 through vigorous admission test.

 

9.            The University of Science and Technology, Chittagong (USTC), as petitioner, filed writ petition Nos. 10847 of 2015 stating that:

 

i)        the petitioner (USTC) is a private university founded by Janasheba Foundation. The Janasheba Foundation is a charitable organization registered under the Societies Registration Act, 1860 and it acts as non-profitable organization and as such, the said Foundation cannot act on commercial basis.

 

ii)      the petitioner (USTC) is the first generation Private University in Bangladesh and was established by National Professor Dr. Nurul Islam, who was the Founder Chairman of  the Janasheba Foundation and also was the founder Vice Chancellor of the petitioner university. The Government of Bangladesh, through the Ministry of Education, approved the establishment of the petitioner in the year 1992, soon after enactment of the Private University Act, 1992 (as amended). 

 

10.        The University of Liberal Arts Bangladesh (ULAB), as petitioner, filed Writ Petition Nos. 12885 OF 2015, 8697 of 2011, 8930 of 2011, 3681 of 2013, 3682 of 2013, 6404 of 2014 stating that:

 

i)        it is one of the reputed private universities in Bangladesh and its operation started upon obtaining approval from the Government of the People’s Republic of Bangladesh (i.e., the Ministry of Education of Bangladesh) in the year 2003 under the Private University Act, 1992 (as amended. It is founded by the University of Liberal Arts Bangladesh Foundation. The said Foundation is a charitable organization not operated commercially, and set up for the promotion and advancement of education as incorporated under the Societies Registration Act, 1980. The Foundation was registered on 15.08.2006, and under this Act of 1980, the Foundation cannot act on commercial basis. It was established by a group of Philanthropists, industrialists, bureaucrats and academics.

 

ii)      the University follows the American system with all its distinctive features, semesters, credit hours, letter grades, one examiner system and so on. Its curricula, when first introduced, were reviewed by relevant departments of University of Gloucestershire (UOG), UK, Edith Cowan University (ECU), Australia, AIDA, Aid Exchange and Development, Spain, Curtain University of Technology, Australia and Institute of Sustainable Development and International Relations (IDDRI), France. The academic programs are continually updated and adapted to meet the local needs with required international standard.

 

iii)    ULAB is accredited by the University Grants Commission of Bangladesh (UGC), the accreditation authority of the Ministry of Education, Government of the People’s of Bangladesh. It is recognized by many world-class universities of USA, UK, Canada, Australia, India, China, South Korea and Malaysia. The credits obtained at ULAB (petitioner No.1) are accepted in most of the respectable universities of USA, Canada, Australia and other countries. Petitioner’s graduates have been accepted in the Graduate programs of Harvard, Cornel, University of Pennsylvania, and other well-known universities. Graduates of the petitioner no.1 are studying for higher degrees at York University, Canada, with Scholarship provided by York University. 

 

iv)    the petitioner is engaged in teaching amongst others, Engineering (Electrical and Telecommunications, Information Technology Telecommunications) and it has invested huge amount of money for teaching these science-based courses.

 

11.              World University of Bangladesh, as petitioner, filed Writ Petition Nos. 11195 of 2014, 13246 of 2015, 8187 of 2015 and 2682 of 2016 stating that:

 

i)        It is one of the reputed private universities in Bangladesh and its operation started upon obtaining approval from the Government of the People’s Republic of Bangladesh (i.e., the Ministry of Education of Bangladesh) in the year 2012 under Private University Act, 1992 (as amended).

 

ii)      It is founded by the World University of Bangladesh Trust. The said Trust is an organization not operated commercially, and set up for the promotion and advancement of education as incorporated under the Trust Act, 1882.The Trust was registered on 26.06.2012. It was established by a group of Philanthropists, industrialists, retired bureaucrats and academics.

 

iii)    the University follows the American system with all its distinctive features, semesters, credit hours, letter grades, one examiner system and so on. The academic programs are continually updated and adapted to meet the local needs with required international standard.

 

iv)    It is accredited by the University Grants Commission of Bangladesh (UGC), the accreditation authority of the Ministry of Education, Government of the People’s Republic of Bangladesh. It is recognized by many world-class universities of USA, UK, Canada, Austrlia, India, China, South Korea and Malaysia. The credits obtained at the University are accepted in most of the respectable universities of USA, Canada, Australia and other countries.

 

12.              The Asian University of Bangladesh, as petitioner, filed Writ Petition No. 6177 of 2013 stating that:

 

i)        The Asian University of Bangladesh is a private university established under the Private Universities Act, 1992 (Now, Private Universities Act, 2010). Since inception, it has been running as a non-profit Organization ensuring fundamental rights to its citizen by providing education at higher level and has been running on full compliance of the relevant laws and rules formulated by the government in this regard.

 

ii)      The petitioner university is run by the Asian University of Bangladesh Trust which is a non-profit Trust. The Trust has been established under a registered Deed of Trust No. 5 dated 09.02.2000 registered with Gulshan Sub Registrar Office, Dhaka. The objectives of the Trust, inter alia, are to promote scientific knowledge and ethical education and training at all levels, to contribute to the social welfare of the people by undertaking measures etc. Being a non-profit university, none of the founders and members of the Trust takes any part from the income of the university. All income of the university is expended for social welfare and for promotion of education and other charitable activities.

 

13.        Eastern University of Bangladesh, as petitioner, filed Writ Petition Nos. 14609 of 2012, 4048 of 2013, 4049 of 2013 and 4050 of 2013 stating that:

 

i)        The petitioner university is run by the Eastern University Foundation which is a non-profit foundation. The foundation has been established under Societies Registration Act, 1860 and purposes of the Foundation, as stated in clause 4 of the Memorandum of Association, is absolutely social welfare and non-profit ones. Further, it has been stated in clause 6 of the Memorandum of Association that all income will be expended for the purpose of the Foundation and nothing out of profit will be distributed among the partners.

 

ii)      The petitioner university being a non-profit university, none of the founders and members of the Foundation takes any part from the income of the University. All income of the university is expended for social welfare and for promotion of education and other charitable activates.

 

14.              Southern University Bangladesh, as petitioner, filed Writ Petition No. 1891 of 2015 stating that:

 

i)        The petitioner is a private university established under the Private Universities Act, 1992. Since inception, it has been running as a non-profit Organization ensuring fundamental rights to its citizen by providing education at higher level and has been running on full compliance of the relevant laws and rules formulated by the government in this regard.

 

ii)      The petitioner university is run by the Southern University Bangladesh Trust which is a non-profit Trust. The Trust has been established under the Societies Registration Act, 1960 to run activities of the said university on a day to day basis. The objectives of the Trust, inter alia, are to promote, exchange of academic, agriculture, business, cultural, human rights, scientific and technological activities in Bangladesh. To promote higher education and to promote awareness among promising Bangladeshi people about the academic system and business opportunities in Bangladesh and abroad.

 

iii)    The petitioner university, being a non-profit university, none of the founders and members of the Trust takes any part from the income of the university. All income of the university is expended for promotion and development of the higher education in Bangladesh.

 

15.              Daffodil International University, as petitioner, filed Writ Petition No. 2510 of 2015 stating that:

 

i)        The petitioner is a private university established under the Private Universities Act, 1992. Since inception, it has been running as a non-profit Organization ensuring fundamental rights to its citizen by providing education at higher level and has been running on full compliance of the relevant laws and rules formulated by the government in this regard. The petitioner university is run by the “Daffodil International University Trust” as established under the Societies Registration Act, 1960 to run activities of the said university on a day to day basis. The objectives of the Trust, inter alia, are to promote scientific knowledge and ethically education and training at all levels, to contribute to the social welfare of the people by undertaking measures etc.

 

16.              University of Asia Pacific (UAP), as petitioner, filed Writ Petition No. 3371 of 2015 stating that:

 

i)        The petitioner is a private university established under the Private University Act, 1992 (as amended). The University is managed and operated by a foundation, namely the University of Asia Pacific Foundation. The Foundation is a charitable company registered under the Companies Act, 1994 and was set up for the promotion of education in Bangladesh.

 

ii)      It obtained permission from the Ministry of Education on 25.02.1996 to act as a private University. The university being a non-profit university, none of the founders and members of the Trust takes any part from the income of the university. All income of the university is expended for promotion and development of the higher education in Bangladesh.

 

17.        Southeast University, as petitioner, filed Writ Petition No. 11840 of 2015 stating that:

 

i)        The petitioner is a private university established under the Private University Act, 1992 (as amended). The University is managed and operated by a foundation, namely the Southeast University Trust. The Foundation is a charitable company registered under the Companies Act, 1994 and was set up for the promotion of education in Bangladesh. The foundation was registered on 23.09.2002. The Government approved the establishment of the petitioner in the year 2002 under Private University Act, 1992.

 

ii)      The university being a non-profit university, none of the founders and members of the Trust takes any part from the income of the university. All income of the university is expended for promotion and development of the higher education in Bangladesh.

 

18.        Independent University, as petitioner, filed Writ Petition No. 9934 of 2015 and 10929 of 2014 stating that:

 

i)        The petitioner is a private university established under the Private University Act, 1992. It was established by the Education, Science, Technology and Cultural Development Trust in the year 1993 as a non-profit making organization and obtained sanadpatra under Section 6 of the Act of 1992. The University established a fund for public charitable objects and executed Deed of Trust with the trustees on 31.10.1991 and was set up for the promotion of education, science, technology and culture through support, promotion and development of appropriate center, college, academy, institution, organization and association as provided in clause 5 of the Trust Deed.

 

ii)      The university being a non-profit university, none of the founders and members of the Trust takes any part from the income of the university.

 

19.        Common Case of the Petitioners:

 

It is commonly stated by the petitioners that, since inception they have been enjoying exemption from paying income tax on the surplus income generated by them by virtue of an S. R.O. being S.R.O No.454-L/80 dated 31st December, 1980 issued by the Government (Ministry of Finance) under section 60(1) of the then Income Tax Act, 1922 which, vide its Clause (a) (3), exempted the universities and other non-profitable educational institutions from payment of income tax. That during the course of their such enjoyment of exemption, the Government issued another S. R. O., being S.R.O No.178-Income Tax/2002 dated 3rd July,2002, under Section 44 (4) (b) of the Income Tax Ordinance, 1984 substituting the above Clause-(a) (3)  in that such exemption would continue only in respect of universities who were not operated commercially.

 

20.        It is further stated that, the said S.R.O. No. 178 dated 3rd July, 2002 did not make any material difference from the former S.R.O No. 454 dated 31st December 1980 in so far as exemption from payment of income tax by the petitioners were concerned in that the earlier S.R.O was applicable to non-profitable universities and other educational institutions and the latter became applicable to the universities and educational institutions which were operated on non-commercial basis and as such the intention and object of both the S.R.Os were same. Thus, it is stated, the petitioners remained entitled to get exemption from income tax under the said S.R.O. dated 3rd July, 2002 as the petitioners could not in any case run their universities on commercial basis as per their own charters.

 

21.        It is further stated that, the petitioners being a non-profitable institutions do not operate commercially and the whole income of the petitioners are applied for imparting education as per the objects of their Society/Charter/ Foundation/Trust. No part of the income of the petitioners are consumed/utilized by the members of the said Foundation /Society /Trust/ Non - Commercial University. But the same are utilized solely for the purpose of education and diffusion of knowledge which is absolutely non-commercial in nature.

 

22.        However, it is stated, by two impugned S.R.O.s being, S.R.O. No.156-Ain/Aikor/2007 dated 28.06.2007 and S.R.O. No.158-Ain/Aikor/2007 dated 28.06.2007, the then Non-Party Caretaker Government promulgated/issued new provisions regarding tax on the surplus income of universities purportedly under Section 44(4)(b) of the Income Tax Ordinance, 1984 and thereby cancelled the exemption of taxes which they were entitled to by the earlier S.R.O. No. 454-L/80 dated 31st December,1980 and S.R.O No. 178 dated 3rd July, 2002

 

23.        It is stated that, vide impugned S.R.O. No. 158 dated 28.06.2007, Non-Party Caretaker Government (the Ministry of Finance) for the first time made division between Public Universities and Private Universities with an additional proviso and thereby imposed / re-fixed 15% tax on Private Universities. Finally, it is stated,   the Government (the Ministry of Finance) vide impugned S.R.O. No. 268 dated 01.07.2010 introduced a new provision under section 44(4)(b) of the Income-tax Ordinance, 1984 which virtually imposed wholesale tax @ 15% on private universities irrespective of its nature whether it is run non-commercial basis or imparting education on medical science or engineering or imparting education in other fields including on information technology.

 

24.        Common grievance of the petitioner Universities are that, pursuant to the aforesaid impugned S.R.Os, the tax exemptions as enjoyed by them have been withdrawn without lawful authority, taxes have been collected from them illegally and they have been illegally asked to pay advance taxes and/or arrear taxes vide different impugned memos issued by the concerned tax authorities. Being aggrieved by the said impugned SROs as well as the impugned actions of the respondents pursuant to the said SROs, the petitioners moved this Court and obtained the aforesaid Rules. At the time of issuance of the Rules, this Court, vide different ad-interim orders, either stayed operation of the impugned SROs or stayed such demand of tax issued by the respondents on the petitioners or proceedings that followed (as the case may be).   

 

25.        Rules have been opposed by the Government by filing affidavit-in-oppositions in Writ Petition Nos. 9562 of 2008, 9564 of 2008, 9566 of 2008, 9567 of 2008. 12558 of 2012, 8985 of 2010 and 2110 of 2013, though the case of the respondent- government is common in all the writ petitions.

 

26.        SUBMISSIONS:

 

Mr. Rafiq-ul-Huq (learned senior counsel), Mr. A.F. Hassan Ariff (learned senior counsel), Mr. Omar Sadat, Mr. Shakhawat Hossain, Mr. Hassan M.S. Azim, Kazi Akhter Hossain, Ms. Rabeya Jamali, Mr. Ashik Al Jalil, MR. Ashikur Rahman and Ms. Mehran Morshed, learned advocates, have made the following common submissions on behalf of the petitioner universities:

 

1)      That the petitioner-universities have been established under trust deeds or instruments in accordance with the provisions under Private University Act 1992 and/or 2010. According to the said trust deeds as well as the instruments by which they have been created, they are not profitable organizations. Since no income from the universities are pocketed by the trustees or any other individuals, the income of the universities cannot be termed as income from business or profession within the meaning of the Income Tax Ordinance, 1984 and as such the same cannot be taxed in accordance with the provisions under Article 83 of the Constitution read with the provisions of the Income Tax Ordinance, 1984.

 

2)      That the petitioners, from the very beginning, have enjoyed tax exemption by virtue of SRO No. 454-L/80 dated 31-12-1980, and, on the basis of such exemption, the petitioner-universities were established in Bangladesh in order to impart higher education to the young citizens of Bangladesh as the government or the State has failed to provide adequate facilities to all students in Bangladesh who are aspiring for higher education or tertiary education. This being so, the petitioner-universities have acquired a vested right to run their institutions without payment of tax. However, the government having for the first time in 2007 introduced tax on them and not on public universities, the same is without lawful authority and is of no legal effect in-as-much as that the same has created discrimination within the same class of higher educational institutions viz-a-viz their students by creating sub-classes therein unreasonably which is in violation of the fundamental rights of the students of the said universities under Article 27 as well as Article 31 of the Constitution. 

 

3)      That since the tax exemption as enjoyed by the petitioners was arbitrarily withdrawn vide impugned SRO No. 156 dated 28.06.2007 and 15% tax was imposed by virtue of impugned SRO No.158 dated 28.06.2007 on some private universities and colleges except the public universities, the said SRO No. 158 dated 28.06.2007 has further created sub-classifications among private universities or private educational institutions by providing tax exemptions to the colleges imparting education in medical, dental, engineering and ICT. This being so, such unreasonable sub-classifications should also be declared to be without lawful authority.

 

4)      That the exemption having been withdrawn in 2007 and the tax having been imposed  @ 15% for the first time in 2007 by an unelected caretaker government, the same is without lawful authority and ultra vires the then Article 58D of the Constitution of the People’s Republic of Bangladesh in as much as that withdrawal of exemption of tax in respect of students of private universities and colleges and thereby imposition of tax on their institutions were major policy decisions and the same could not be taken by such an unelected caretaker government in view of the provisions constituting such non-party caretaker government. In this regard, learned advocates have referred to an unreported decision of this Court in Pirzada Syed Sariatullah and others vs. Government (Writ Petition No. 2207/2008).

 

5)      Further referring to the SRO No. 158 dated 28.06.2007, learned advocates submit that since some universities imparting educations in Medical, Dental, Engineering and ICT have been exempted along with the public universities, the said SRO also cannot pass the test of reasonableness and as such the same is hit by Articles 27 and 31 of the Constitution of the People’s Republic of Bangladesh. Learned advocates for some of the universities have further submitted that, though their universities were imparting educations in Medical, Dental, Engineering and ICT, still they were issued demand notices demanding arrear tax or advance taxes at the relevant time pursuant to the said SRO No. 158 dated 28.06.2007.     

 

6)      That right to life as guaranteed under Article 32 of the Constitution being included therein  the right to medical care, education etc., without which a life of human being will not be life in true sense, by putting hindrances on such right to life of the students of the said private universities by imposing tax on their education system, the impugned SROs have clearly violated the provisions under Article 32 of the Constitution. In this regard, they have referred to some decisions of the Indian Supreme Court and our jurisdiction, namely Unni Krishnan, J.P. v. State of A.P., AIR 1993 S.C. 2178, Chameli Singh and others v. State of U.P, AIR1996 S.C. 1051, Manzil Morshed vs Bangladesh and others, 15BLC (2010)-351, NBR vs. Advocate Zulhas Uddin Ahmed and others, 18BLC (AD)-52 etc. According to the petitioners, since right to life guaranteed in a civilized society implies the right to food, water, decent environment, education, medical care etc,. with the passage of time, these rights have in the meantime become inseparable ingredients of right to life and as such the right to life as guaranteed under Article 32 of our Constitution implies that such life has to be a life in a civilized society having right to food, water, decent environment, education, medical care and shelter.

 

7)      Further referring to the provisions under Articles 15 and 17 of our Constitution wherein imparting education has been contemplated as one of the basic principles of the State Policies, learned advocates submit that, while interpreting the provisions under the said SROs as well as the provisions of the Constitution, in particular Articles 27, 31, 32 under Part-III and Article 83 thereof, the said principles of State policy under Part-II should be kept in mind and should be the basis of such interpretation as the same is the mandate of Article-8 of our Constitution.

 

8)      Learned Advocates further submit that, since the State has admittedly failed to provide sufficient educational Institutions for their young citizens and such admitted failure has basically allowed emergence of private Universities in Bangladesh by virtue of Private University Act, 1992 giving them full tax exemption like public universities and thereby allowing the students  belonging to middle class and families of limited resources in Bangladesh to attend those private universities at their own expenses without any subsidies or help from the government, picking up the private universities for imposition of tax by virtue of the impugned SROs is not only unreasonable but lacks any reasonable nexus in particular when imparting free education has been repeatedly emphasized in our Constitution under Articles 15, 17 and 19 of Part-II and impliedly under Article 32 of Part-III.

 

9)      Further referring to different commentaries including some observation of late Mr. Mahmudul Islam in his book, Constitutional Law of Bangladesh, Third Edition, as well as the observation of their Lordships Mr. Justice Shahabuddin Ahmed and Mr. Justice Mustafa Kamal, as they then were, in Kudrat-E-Elahi Vs. Bangladesh, 44 DLR (AD), learned advocates submit that, in the said case, the fundamental principles of State policy as incorporated under Part-II of the Constitution have been given effect to while determining a case relating to local government institution, namely Upazilla Parishad, and thereby our Apex Court has interpreted   the provisions of Article 59 of the Constitution in line with the fundamental principles as enunciated under Articles 9 and 11 of the Constitution. This being so, according to them, this Court should also interpret the provisions of the impugned SROs, as well as the provisions of Articles 27, 31 and 32 in the facts and circumstances of the present case in line with the said fundamental principles as incorporated in Articles 15 and 17 of the Constitution.

 

10)  Further referring to the provisions under Article 83 of the Constitution and Section 44(4)(b) of the Income Tax Ordinance, 1984. learned advocates submit that, Chapter-VI of the said Ordinance being titled “Exemptions and Allowances” and the heading of Section 44 being “Exemption”, Clause-(b) of sub-section (4) of Section 44 cannot be given effect to by the said impugned SROs if, by virtue of the said SROs, tax burden of  the universities is increased in any way. According to them, since the said entire Chapter-VI, in particular clause (b) of sub-section (4) of Section 44, deals with exemption, reduction in rate or other modification in respect of tax, the government cannot impose tax on the private universities by saying that the tax has been re-fixed inasmuch as that the word “ other modifications” as occurring in Clause (b) of sub-section (4) of Section 44 must be read in accordance with the spirit and connotations as generated by the preceding words “exemption” and “reduction in rate” in view of the principle of ejusdem generis. Therefore, according to them, since the government, by the said SROs, have in fact imposed tax burden on the petitioners, it has violated the said principle of ejusdem generis and as such the said SROs cannot stand in the eye of law.

 

11)  Further referring to Article 83 of the Constitution and Section 44(4)(b) of the said Ordinance, learned advocates submit that, the government having been delegated with the power of reduction, exemption and modification by virtue of Section 44(4)(b) of the said Ordinance, it acted  beyond the said authority of the parent law by imposing taxes on the petitioners by virtue of the said SROs and as such acted beyond the power of delegatee. In this regard, they have referred to the test of delegated legislation as narrated by Mr. Mahmudul Islam in his book  Constitutional Law of Bangladesh, Third Edition (P-503) upon referring to different authorities and three-fold test as narrated by Lord Diplock in Eldowney vs. Fords, (1969) 3 WLR 179, which is as follows:

 

“first, determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly, to determine the meaning of the subordinate legislation itself and finally, to decide whether the subordinate legislation complies with that description.” [Para 11, at page 254].

 

12)   Learned advocates further submit that, the impugned SROs suffer  from malice in law in that the same have taken away the vested right of the petitioners to enjoy tax exemption in particular when by virtue of the provisions under the Private University Act, 2010, the petitioners are not allowed to make any profit for the personal gains of their trustees or founders and that they are prevented by Section 9(3) of the said Act even from mortgaging their land and structure in favour of any bank or financial institutions. This being so, according to them, since the private universities have been picked up for imposition of tax without any reasonable basis, such actions of the respondents cannot stand in the eye of law inasmuch as that such withdrawal of tax exemption is clear violation of provisions under Section 21 of the General Clauses Act. In this regard, they have referred to the cases in Enamul Haq (Md) vs. Jatiyo Bishwabiddalay and others, 59 DLR-556, Azizuddin Industries vs. Government of Pakistan, 18 DLR-92 and Chief Controller of Imports and Exports vs. Hussain Ali Shah A. Fazlani, PLD 1960 SC-310.

 

13)  Learned advocates finally submit that, when the petitioner universities have taken up responsibilities to fulfill the obligations of the State in imparting higher education to its citizens and thereby saving huge foreign currency by preventing the students of Bangladesh from going abroad for such higher education, they are in fact entitled to different incentives from the government like the garment industries in Bangladesh, as, according to them, though the garment industries are earning foreign currencies, the petitioners are preventing foreign currencies from leaving Bangladesh and thereby they are also contributing to the national exchequer. This being so, according to them, instead of providing any sort of incentives in favour of the petitioners, the government, vide the impugned SROs, have provided some disincentives and hindrances in the running of those universities. 

 

27.        As against above submissions, Mr. S. Rashed Jahangir, learned Deputy Attorney General appearing for the respondent-government, has made the following submissions.

 

a)      That the general rate of tax as applicable to the private universities was @ 37.5% before and at present it is @ 35%. This being so, by virtue of those impugned SROs, tax liabilities of the petitioner universities have been reduced to 15%. Thus, according to him, the said SROs do not in any way violate the provisions of Clause (b) of sub-section (4) of Section 44 of the said Ordinance.

 

b)      Learned DAG further submits that, though the said Universities were given tax exemption at the beginning by virtue of SRO No. 454-L/80 dated 31.12.2008, such exemptions have gradually been withdrawn by the government as because with the passage of time the private universities in Bangladesh have improved to a great extent and as such it has been considered by the government that they should now pay tax on their surplus income.

 

c)      Further referring to the SRO Nos. 156 and 158, both dated 28.06.2007, learned DAG submits that, while the tax exemption enjoyed by the petitioners previously was withdrawn by the said SRO No. 156, general rate of tax at the rate of 37.5% or 35% became applicable on the petitioners on the very day on which the said tax exemption was withdrawn. Therefore, when, by virtue of the next SRO No. 158 dated 28.06.2007, 15% tax was re-fixed, this re-fixation of tax at the rate of 15% cannot be termed as imposition of tax on the petitioners inasmuch as that the same was apparently a reduction from general rate of 35%. However, in the course of such submission, learned DAG has frankly admitted that such general rate of tax at the rate of 37.5% or 35% was never applied to any universities in Bangladesh or even before creation of Bangladesh.

 

d)      As regards the issue of caretaker government’s authority to issue the said two SROs in 2007, learned DAG submits that the concerned caretaker government remained in power for about two years and they promulgated two national budgets during the said period. This being so, to fulfill the requirement of those budgets, taxation in fact became a routine work of the said caretaker government and as such the said caretaker government was entitled to issue the said SROs in 2007 by virtue of which the tax exemption of the petitioners was withdrawn and, at the same time, reduced rate of tax @ 15% was refixed on them.

 

e)      As regards submissions of the petitioners regarding the provisions under Articles 15 and 17, namely the fundamental principles of State Policy as provided under Part-II of the Constitution, learned DAG submits that it has been decided in Kudrat-E-Elahi case in clear terms that the fundamental principles of State Policy under Part-II of the Constitution are not judicially enforceable and as such, according to him, the petitioners have no case under Articles 15 and 17 of the Constitution.

 

f)       As regards petitioners submissions of acquiring vested right of exemption, leaned DAG submits that, it is the mandate of Section 21 of the General Clauses Act that the authority or person who can promulgate something can also withdraw or re-fix the same and as such the petitioners cannot claim any such vested right  against their obligation to pay statutory tax.

 

28.  DELIBERATIONS OF THE COURT:

 

To appreciate the submissions of the learned advocates as well as the relevant provisions of law, let us first start with the examination of the concerned SROs including the impugned SROs chronologically with the reproduction of the relevant parts of the same.

 

A)          SRO No. 454-L/80 dated 31.12.1980:-

 

No. S.R.O. 454-L/80.-In exercise of the powers conferred by sub-section (1) of Section 60 of the Income tax Act, 1922 (XI of 1922) and supersession of the Ministry of Finance Notification No. S.R.O. 1041(K)/61, dated the 31st October, 1961 the Government is pleased to direct that:

 

a)      the following classess of income shall be exempt from the tax payable under the said Act and they shall not be taken into account in determining the total income of an assessee for the purposes of the said act.-……………………… … ………………………

 

(3)   The income of a university or other educational institution existing solely for educational purposes and not for purposes of profit;

 

(Underlines supplied)

 

29.     It appears from this SRO that, in exercise of power under Section 60(1) of the then Income tax Act, 1922, the government exempted tax liability of universities and other educational institutions, irrespective of private or public, which were existing solely for educational purposes and not for purposes of profit. Therefore, it can be said that the educational institutions that existed at the relevant time were generally exempted from payment of tax and that also included therein the schools and colleges in addition to universities. The admitted position is that, at that time, there was no such private universities in Bangladesh.

 

B)     SRO. No. 178-Aikor/2002 dated 03.07.2002.

 

Gm, Avi, I bs 178-BuLl/2002z- Income-tax Ordinance, 1984 (XXXVI of 1984) Gi section 44 Gi sub-section (4) Gi clause (b) G cÖ`Ë ¶gZve‡j miKvi Aœ wefv‡Mi 31­n ¢X­pðl, 1980 Cw a¡¢l­Ml fË¡fe Hp|Bl|J ew 454-L/80 G wb¤œiƒc ms‡kvab Kwij, h_v t-

 

Ef¢l-EJ² fË¡f­el clause (a) Gi sub-clause (3) Hl f¢lh­ ¢ejÀl¦f sub-clause (3) fË¢aØq¡¢fa nB‡e, kb¡x-

 

(3) the income of any university, or any other educational institution, which is not operated commercially and also medical college, dental college, engineering college and institution imparting education on information technology;”

 

(Underlines supplied)

 

30.     This SRO in fact has not made any material change as tax exemption remained applicable if the university or educational institution in question was not operating commercially. However, while in SRO No. 454 dated 31.12.1980 the government used the words “existing solely for educational purposes and not for purpose of profit” as the qualification for getting such tax exemption, it used the words “which is not operated commercially” vide the above quoted SRO of 2002. Therefore, practically the impact remained almost same in so far as the petitioners’ tax liabilities were concerned. It may be noted in this regard that, a Full Bench of this Court, in Income Tax Reference Application Nos.159-162 of 2011 and 511 of 2004, reported in 20 BLC(2015)-457, has already examined the purport of the said words “not operated commercially” as was occurring in SRO No. 178 of 2012 and held that the said words being vague, the benefit would go in favour of the assessee-private universities. Be that as it may, this SRO does not have any considerable impact on the merit of the instant writ petitions.

 

C)    SRO No. 156-Ain/Aikor/2007 and SRO No. 158-Ain/Ainkor/2007, both dated 28.06.2007:

 

Gm, Avi, I bs 156-AvBb/AvqKi/2007 Income-tax Ordinance, 1984 (XXXVI of 1984) Gi section 44 Gi sub-section (4) Gi clause (b) G cÖ`Ë ¶gZve‡j miKvi GB wefv‡Mi S.R.O. No. 454-L/80 dated 31st December, 1980 G wb¤œiƒc ms‡kvab Kwij, h_v t-

 

Clause (a) Gi sub-clause (1), sub-clause(2) I sub-clause (3) wejyß nB‡e|

 

Hp, A¡l, J ew 158-BCe/A¡uLl/ 2007z- Income –tax Ordinance, 1984 (XXXVI of 1984) Hl Section 44 Hl sub-section (4) Hl clause (b) H fÐcš rja¡h­®m plL¡l ¢hnÄ¢hcÉ¡mu j”¤l£  L¢jne LaѪL Ae¤­®j¡¢ca fСC­®iV ¢hnÄ¢hcÉ¡mu Hhw Afl¡fl ¢hnÄ¢hcÉ¡mu, k¡q¡l¡ f¡h¢mL ¢hnÄ¢hcÉ¡mu eu, a¡q¡­®cl Eá¥a A¡­®ul Efl 15%  q¡­l A¡uLl f¤ex ¢edÑ¡lZ L¢lmz

 

2z ®j¢XLÉ¡m, ®X¾V¡m, C¢”¢eu¡¢lw J abÉ fÐk¤¢š² ¢nr¡c¡­e ¢e­®u¡¢Sa fСC®­iV L­®mS h¡ ¢hnÄ¢hcÉ¡mupj§­®ql A¡u Llj¤š² qC®­h ¢L¿º I pLm fТaù¡­®el ®r­®œ fТahRl kb¡l£¢a ¢el£¢ra ¢qp¡h ¢hhlZ£p­®ja A¡uLl ¢hhlZ£ c¡¢Mm L¢l­®a qC­®hz

 

3z f¡h¢mL ¢hnÄ¢hcÉ¡mupj§­®ql A¡u Llj¤š² qC®hz

 

(Underlines supplied)

 

31.        It appears that, by this SRO No. 156 of 2007, the Government has withdrawn the said tax exemption in a whole sale manner by deleting the sub-clause (3) of the earlier SRO No. 454-L/80 dated 31.12.1980 and, on the same day, issued another SRO No. 158 dated 28.06.2007 imposing 15% tax on the private universities which were approved by the University Grand Commission. However, while imposing such 15% tax, the government used the words f¤ex ¢edÑ¡le L¢lm. Interestingly, by this SRO No. 158 of 2007, some private colleges and Universities imparting education in Medical, Dental, Engineering and ICT have also been exempted from such liability of Tax along with the public universities, though they were made required to submit tax returns.

 

32.        Therefore, it further appears that, by this SRO No. 158 of 2007, the Government has for the first time created a division between universities and colleges in Bangladesh in so far as their tax liabilities were concerned in that the Public Universities have been kept tax exempted as before and the tax became payable by the private universities. Not only that, a sub-division has also been created among the private universities and colleges in that the private universities and colleges which impart education in Medical, Dental, Engineering and ICT have become only liable to submit tax returns but remained exempted from payment of tax.

 

D)    SRO No. 268-Ain/Aikor/2010 dated 01.07.2010:

 

Gm, Avi, I bs 268-AvBb/AvqKi/2010 Income Tax Ordinance, 1984 (Ord. No. XXXVI of 1984) Gi section 44 Gi sub-section (4) Gi clause (b) ‡Z cÖ`Ë ¶gZve‡j miKvi, 14 Avlvp, 1414 e½vã/28 Ryb, 2007 wLªóvã Zvwi‡Li cÖÁvcb bs G, Avi, I 158-AvBb/AvqKi/2007 GZ`Øviv iwnZµ‡g, cvewjK wek¦we`¨vjq e¨ZxZ †emiKvix wek¦we`¨vjq, †emiKvix †gwW‡Kj K‡jR, †emiKvix †W›Uvj K‡jR, †emiKvix BwÄwbqvwis K‡jR ev †KejgvÎ Z_¨ cÖhyw³ wel‡q wk¶v`v‡b wb‡hvwRZ †emiKvix K‡jR Gi D™¢~Z Av‡qi Dci cÖ‡`q AvqK‡ii nvi n«vm Kwiqv 15% wba©vib Kwij|

 

(Underlines supplied)

 

33.        By this SRO, according to the words used therein, the tax liabilities of all private universities and colleges have been reduced to 15% (“fË­cu BuL­ll q¡l qÊ¡p L¢lu¡ 15% ¢edÑ¡le L¢lm”) by repealing the earlier SRO No. 158-Ain/Aikor/2007 dated 28.06.2007. Most interestingly, though the Public Universities have been kept away from the application of this tax liability @ 15%, the tax exemption as enjoyed by the said public universities has also been impliedly cancelled by this SRO. Therefore, not only the private universities and colleges became liable to pay tax at the rate of 15%, the public universities in fact became liable to pay tax at the general rate, namely @ 37.5% or @ 35% with effect from 1st July, 2010. Surprisingly, this withdrawal of tax exemption of public universities has only been cancelled very recently in 2015 vide Finance Act, 2015 by incorporation of a Clause in the Sixth Schedule to the Income Tax Ordinance, 1984. This reveals the sheer no-application of mind by the concerned government officials who drafted and issued this SRO. When the public universities have admittedly never been required to pay tax till date,  legally their tax exemption was in fact repealed or withdrawn in 2010 by virtue of this SRO No. 268 dated 1st July, 2010 as this SRO apparently repealed the earlier SRO No. 158 dated 28.06.2007.

 

34.        With the above picture of the concerned SROs including the impugned SROs, let us now address the issues raised by the learned advocates in these writ petitions.

 

35.        Issue of Caretaker Government:

 

Admittedly, the caretaker government as contemplated  by virtue now repealed 13th Amendment to the Constitution was created for the purpose of holding free and fare election amongst political parties in Bangladesh, the tenure of the said government being 90 days. By virtue of the provisions under Article 58D of the then Chapter-IIA of part IV of the Constitution, the Caretaker Government was only authorized to do routine works. However, in some cases, the said Caretaker Government, which functioned for about two years, admittedly transgressed their constitutional perimeter by acting beyond their jurisdiction and authority. This issue came up for consideration by this Court in some cases including in unreported Writ Petition No. 2207 of 2008 (Pirzada Syed Sariatullah and others vs. Government), wherein an amendment to the Muslim Marriages and Divorce (Registration) Act, 1974 vide Muslim Marriages and Divorces (Registration) (Amendment) Ordinance, 2008 (promulgated by the said Caretaker Government) was under challenge. This Court, in the said case, categorically held that the Caretaker Government was not authorized or empowered by the Constitution to act anything which did not come under their authority which was necessary for running of the affairs of the government at the relevant time for holding free and fare election. In this regard, the Court observed as follows:

 

""Dc‡ii Av‡jvPbv nB‡Z Avgv‡`i wbKU cÖwZqgvb nq †h t

 

cÖ_gZt Muslim Marriages and Divorce (Registration) (Amendment) Ordinance, 2008 (2008 m‡bi 3bs Aa¨v‡`k) (G¨v‡bKPvi-G) RvZxq wbe©vPb msµv¿¹ b‡n;

 

wØZxqZt ZwK©Z Aa¨v‡`kwUi D‡Ïk¨ I Kvh©KviK miKv‡ii ˆ`bw›`b Kvh©vejx m¤úwK©Z b‡n; Bnv cÖYqb bv Kwi‡j ivóª ev miKv‡ii ˆ`bw›`b mvavib Kvh©vejxi †Kvb cÖKvi rwZ nB‡e bv;

 

Z…ZxqZt RvZxq msm‡`i Awa‡ekb Avi¤¢ nIqv ch©¿¹ ZwK©Z Aa¨v‡`kwUi cÖYqY A‡fr¡ bv Kwievi gZ †Kvb Sl¦l£ ev we‡kl cwiw¯’wZi D™¢e nq bvB|

 

GgZ¡e¯’vq, eZ©gvb ZË¡veavqK miKvi Avg‡j ZwK©Z Aa¨v‡`kwU I pw¢nÔø 20-2-2008Bs Zvwi‡Li ¯§viKwU Rvix Kwievi †Kvb AvBbMZ cwiw¯’wZi m„wó nq bvB weavq ivóªcwZ KZ…©K RvixK…Z Dc‡iv³ Aa¨v‡`k Ges AvBb gš¿Yvjq nB‡Z 20-2-2008Bs Zvwi‡Li ¯§viKwU msweavb cwicwš’ I GL&wZqvi ewnf~©Z|

 

(Underlines supplied)

 

36.        Therefore, the basic tenor of the said judgment of this Court is that the Caretaker Government should have waited for the elected government to take any major policy decisions as that was the mandate of the Constitution.

 

37.        In the cases before us, the admitted position is that, the government, for the first time in 2007, by virtue of the impugned SRO Nos. 156 and 158, imposed a tax liability on some of the private universities and colleges. Not only that, for the first time a distinction was created as regards tax liability between public universities and private universities. It is true, as submitted by the learned DAG, that practically since the said Caretaker Government promulgated two budgets, it became necessary for them to do some taxation works. However, while the said Caretaker Government, under the Constitution, was at all authorized to continue for such a long period of two years beyond the mandate of the Constitution is another hot issue to be determined by this Court in a proper case, it cannot be submitted reasonably by the Government side that a decision like imposition of tax on private universities and creation of classification between private and public universities in respect of tax liabilities was part of routine works of the then Caretaker Government.

 

38.        Admittedly, the creation of private universities was due to the failure of the government to provide sufficient educational  facilities for higher education. The preamble of now repealed “­hplL¡l£ ¢hnÄ¢hcÉ¡mu BCe, 1992is quoted below for the purpose of understanding the real intent of the Legislature for enacting the said law:

 

­qa¥ ®c­n EµQ ¢nr¡l H²jhdÑj¡e Q¡¢qc¡ f§lZ J hÉfL pÇfÐp¡lZ, phÑp¡d¡l­Zl SeÉ EµQ ¢nr¡ p¤miLlZ Hhw Eq¡l j¡dÉ­j cr Se­N¡ù£ pª¢øl E­Ÿ­nÉ ®hplL¡l£ fkÑ¡­u ¢hnÄ¢hcÉ¡mu fË¢aù¡LlZ AaÉ¡hnÉL;

 

Hhw ®k­qa¥ ®c­nl L¢afu SeLmÉ¡ZL¡j£ hÉ¢J², hÉ¢J²-®N¡ù£, c¡ahÉ VÊ¡ø J fË¢aù¡e ®hplL¡l£ fkÑ¡u ¢hnÄ¢hcÉ¡mu fË¢aù¡ J f¢lQ¡me¡ L¢l­®a BNËq£;

 

Hhw ®k­®qa¥ ®hplL¡l£ fkÑ¡­u ¢hnÄ¢hcÉ¡mu fËaù¡LlZL­Òf ¢hd¡e Ll¡ fË­u¡Se£u J pj£Q£e;

 

­®p­®qa¥ Hacà¡l¡ ¢ejÀl¦f BCe Ll¡ qCmx-   

 

39.        It appears from the above preamble that, the intention of the Legislature was to meet the ever increasing demand of higher education in the country and to make higher education easily accessible by the mass people in order to create skilled manpower in the country. Therefore, it is evident that, it was realized by the Legislature that (though not clearly stated) the State had in fact failed to meet the ever-increasing demand of higher education in this country. Therefore, when the intention of the Legislature was to expand the mass higher education in the country by allowing establishment of private universities to fill up the gap created by the lack of sufficient number of public universities, it did have in its wisdom that such universities, by virtue of the SRO of 1980, would enjoy tax exemption for the purpose of mass higher education or to make higher education easily accessible to the mass people (phÑp¡d¡lZ). Accordingly, when the private universities were established by virtue of the Act of 1992, they were, from the very beginning, enjoying such tax exemption. The Philanthropists or the Trusts which contemplated at the relevant time to establish such private universities in order to fill up the gap created by the lack of public universities did also have legitimate expectation that such private universities would be tax free universities.

 

40.        It is not the case of the respondents in these writ petitions that the trustees of the petitioners or the persons who established those universities are pocketing profits or surplus income from the said universities. It has not been denied by the respondents that whatever surplus income is generated trough tuition fees and other sources, such surplus income is engaged in the improvement and expansion of such private universities. This being the case before us, we cannot understand as to how a non-elected Caretaker Government, at the relevant time, took such a major policy decision to withdraw tax exemption and thereby to impose tax on the private universities by virtue of the said SRO Nos.156 and 158 of 2007 in particular when such imposition was clearly against the intention of the Legislature which is evident from the above quoted preamble of ­®hplL¡l£ ¢hnÄ¢hcÉ¡mu BCe, 1992”. When the tax can only be imposed by or under the authority of an Act of parliament by virtue of Article 83 of the Constitution, an un-elected Caretaker Government under no circumstances can impose such tax on the private universities or higher education in the garb of technically using the word “re-fixation” or “reduction” from general rate. Therefore, this Court is of the view that, the said SROs, namely SRO Nos. 156 and 158 of 2007 suffered from the following improprieties from the beginning:

 

(a) they were not in any way related to the holding of national election,

 

(b) decisions to withdrawn tax exemption from private universities and thereby to impose tax thereon were major policy decisions and as such were not part of routine works of the then caretaker government as mandated by the then relevant provisions of the Constitution and that-

 

(c) they were not that urgent decision that the caretaker government could not wait for the elected government to take such policy decision.

 

Accordingly, the said impugned SROs of 2007 were issued in clear violation of the mandate of the Constitution in so far as the same related to the functions of the Caretaker Government and, thus, the same were ultra vires the then relevant previsions of the Constitution.

 

41.        Public/Private Discrimination:-

 

Admittedly, a classification has been made between public and private universities in 2007 by virtue of the impugned SRO No. 158 of 2007. As stated above, since the private universities have been created or established to fill up the gaps created by the lack of sufficient number of public universities due to the failure of the State to provide higher educational facilities to the mass people, the private universities, established without any subsidies from the government, or any help from the government, and the students studying therein at their own costs, have been subjected to tax by virtue of the said impugned SROs of 2007 and 2010.

 

42.        It is now accepted position that, the private universities are not meant for only students belonging to rich families. In this regard, the observation of Professor Abdul Mannan, Chairman of the University Grants Commission, as published through the “Round Table Discussions on Private Universities: Success and Challenges” (see the Daily Star, 3rd September, 2016 and Annexure-M to the Supplementary Affidavit of the petitioner in Writ Petition No. 6861 of 2012) may be referred to. According to the said Chairman of the Grants Commission, there are now 95 private universities in Bangladesh out of which 84 are functioning, the exact number of students being 4,63,767 out of which 40% are women, as against which there are only 37 on campus public universities. It further appears from Annexure-L to the said supplementary-affidavit in Writ Petition No. 6861 of 2012 that, the University Grants Commission approved a budget of Tk. 3,425.74 crore for the public universities in Bangladesh out of which Tk. 3,390.69 crore will be spent for the said 37 public universities. At the same time, admittedly, there is no such budgets or grants from the government for the private universities. Therefore, if the tax is imposed or the rate of taxes is increased in respect of private universities, there is no doubt that the heat of the same will be felt by the students who are studying therein as their already high tuition fees and other expenses will further be increased. When it has been widely reported that some of the private universities are taking huge tuition fees from the students without any reasonable basis as against which the University Grants Commission or the government is not doing enough, the government has been imposing taxes on the said private universities so that the said tax burden could be shifted on to the students who are already vulnerable and prejudiced.  

 

43.        It is known to all that, apart from specific budget allocations, huge other facilities are provided to the public universities like fields, buildings, labs, library etc. by the government as against no free facilities being provided in favour of the private universities. It cannot not be denied, as reflected in the said Daily Star Round Table Discussions, that most of the students in the private universities now come either from middle class families or families of limited means. Therefore, when the said majority number of students have been compelled to study at private universities at high cost because of the lack of sufficient number of public universities with almost free education therein, the classification created by the government in between public and private universities in so far as the tax liabilities are concerned cannot be said to be reasonable classification. Yes, Private Universities are of different class altogether. But, are the students therein different? The answer is ‘No’. They all are our children having equal right to education and entitled to equal protection of law as those of Public Universities as guaranteed under Articles 27 of the Constitution.  No such reasonable nexus is apparent from the said SROs. Thus, such discrimination is clearly hit by Articles 27 and 31 of the Constitution. It is rather unfortunate that when a non-elected Caretaker Government (widely known as army backed government) imposed such tax liability in 2007 on the said private universities and thereby put more hindrances to the smooth education of the students of middle class and families of limited means, the elected government in 2010 has followed of the same course hoodwinking the Legislature and did not even place this issue before the elected members of the Parliament.

 

44.        As stated above, discrimination as regards tax liabilities between private and public universities being a major policy decision, and imposition of tax on private universities, in whatever names (reduction or re-fixation), being a major political policy decision, it should have been placed before the Parliament for the view of the elected M.Ps. However, the government has apparently issued the said SRO in 2010 in the same mechanical terms as used in the SROs issued by the nonelected Caretaker Government in 2007. Therefore, this Court is of the view that, this classification is unreasonable classification in the facts and circumstances and background of the cases .It has already been noticed that, by issuing the said SRO No. 268 in 2010, the government even technically imposed general rate of tax @35% on the public universities. This reveals that even the concerned officials of the government did not apply their minds in drafting or in issuing the impugned SRO No. 268 dated 01.07.2010. On this ground as well, this SRO of 2010 should be knocked- down.

 

45.        Issue of Delegated Legislation:

 

Admittedly, the impugned SROs are delegated legislations as the same were promulgated by the government as a delegatee of the Parliament. When the private universities have been established to fulfill the needs of mass higher education, under no circumstances, the government could be allowed as a delegatee to put the students of those universities in a further disadvantageous position as against the students of the public universities by creating such divisions and classifications between the students of this Country, particularly when the students of private universities are already in a much more disadvantageous position. In this regard, the decision of this Court in Aminul Islam and others vs. Bangladesh Biman Corporation and others, 1982 BLD-1may be referred to wherein a Division Bench of this Court knocked down the relevant provisions of Bangladesh Biman Employees Seniority of Freedom Fighter Rules, 1980   holding that classification between employees of Biman into freedom fighters and non-freedom fighters by the government without placing the same before the Parliament, the same being a major political decision, was violation of the delegation of power given in favour of the government by virtue of the provisions under Bangladesh Biman Corporation Ordinance, 1977. Thus, this Court is of the view that, creating discrimination between the private universities and public universities as well as between their students, in so far as tax liabilities are concerned, is a major political policy decision and as such the same must be placed before Parliament for seeking opinion of the elected representatives of the people of this country. The same having not been done before issuing the impugned SROs, they should be knocked-down on the principle that the delegatee-government acted beyond the power of delegation.

 

46.        Issue of Fundamental Principles of State Policy / Fundamental Rights:

 

Though the petitioners have made extensive arguments as regards right to life being a fundamental right as guaranteed by Article 32 of our Constitution and that the same includes the right to education, it is not necessary to elaborate the same any further as the said issue has already been addressed hereinabove. It should be noted here that the Superior Courts of the subcontinent have time and again held that imparting education cannot be treated as business or profession, though teaching students may be treated as a profession for the teachers. On the other hand, it appears that, the impugned notices demanding taxes and advanced taxes from the petitioners have in fact been issued by the tax officials of the concerned company circle. This means, the respondents have taken the petitioners as entities like companies doing business and earning profits upon such business. So, the very outlook of the respondent-officials as regards the petitioners’ establishments is a kind of distorted outlook having no connection with the facts and circumstances of the case. In this regards, the observation of justice Jeevan Reddy, as made in Governing Body of Rangaraya Medical College vs. Income Tax Officer, A-Ward, Circle I, Kakinada [Income Tax Report, Vol-117, Page-284] may be quoted below:-

 

“The assessee-society was not different from the medical college. It was only because of the pendency of the petition for exemption from stamp duty and registration fees, which was pending with the Government, that the construction of the buildings had to be under taken in the name of the Medical Educational Society. Further, there is no distinction between the petitioner society and the college and the society was an educational institution with no motive of private or personal profit. Merely because certain surplus arose from the society’s operations, it cannot be held that the institution was run for purpose of profit so long as no person or individual was entitled to any portion of the said profit and the said profit was utilized for the purpose and for the promotion of the objects of the institution. Hence, the income of the petitioner was entitled to exemption from income tax under s. 10, cl. (22), of the I.T.C Act, 1961.

 

(Underlines supplied)

 

47.        Thus, the very basis on which the respondent-government issued the impugned memos as well as initiated the impugned actions demanding advanced taxes etc. and/or refusing to give refund was not tenable in law. Similar observation has been made by Justice Jeevan Reddy, in Unni Krishnan J.P. vs. State of Andra Pradewsh, AIR-1993 (SC)-2178:- 

 

The activity of establishing an educational institution can neither be a trade or business nor can it be a profession within the meaning of Art. 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. Imparting of education has never been treated as a trade or business in this country since times immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. The said activity cannot be called a ‘profession’ within the meaning of Art. 19(1)(g). It is significant to notice the words “to practice any profession”. Evidently, the reference is to such professions as may be practiced by citizens i.e., individuals. Establishing educational institutions can by no stretch of imagination be treated as “practising any profession”, teaching may be a profession but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not ‘practicing profession’. It may be anything but not practicing a profession.” [Para 164,167].

 

(Underlines supplied)

 

48.        Therefore, when the issue ‘right to life’ comes to the fore, the above perspective of activities of imparting education not being trade or business has to be kept in mind.  A life without education is no life in fact. Indian Supreme Court has in the meantime, in clear terms, held that right to education is inseparable part of right to life and in that way they have given effect to the fundamental principles of state policy of the Indian Constitution.

 

49.        Fundamental principles of state policy are incorporated in our Constitution under Part-II of the Constitution and the said part starts with Article-8, which reads as follows:-

 

“8. (1) The principles of nationalism, socialism, democracy and secularism, together with the principles derived from those as set out in this part, shall constitute the fundamental principles of state policy.

 

(2) The principles set out in this Part shall be fundamental to the government of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, but shall not be judicially enforceable.”

 

 (Underlines supplied)

 

50.        Therefore, It appears that, the basis of governance of our State as mandated by the Constitution should be the principles incorporated in Part-II of the Constitution. Not only that, the said principles shall be the guide of interpretation of the Constitution or any other laws in Bangladesh and thus shall form the basis of work of the State, though they are not judiciary enforceable. The petitioners in these writ petitions have not come up for enforcement of those fundamental principles, but they are seeking those fundamental principles to be adopted as a guidance to the interpretation of the said SROs as well as the actions taken by the government pursuant to such SROs.

 

51.        While Article-15 under Part-II of the Constitution has mandated education as one of the basic necessities of the citizens of this country, Article-17 of the same Part has given an instruction on the State for producing properly trained citizens, which is not possible without education. Though the learned DAG has put emphasis on mass education at primary level, it has to be borne in mind that Bangladesh has gone ahead much further in the meantime to think of only about primary education. A student from a remote village now aspire to become a student of leading universities (public or private) in Bangladesh. Therefore, the outlook of the State as regards the citizens, in particular the young citizens of Bangladesh, has already been changed radically from their attention to mass primary education to mass higher education, and that was reflected in the preamble of the “­®hplL¡l£ ¢hnÄ¢hcÉ¡mu BCe, 1992and the “­®hplL¡l£ ¢hnÄ¢hcÉ¡mu BCe, 2010”. Therefore, as intended by our Legislature, time has come long ago to extend supports towards mass-higher education in Bangladesh and to expand such facilities to reach almost all the students of this country, which the government has admittedly failed to do so far. Therefore, when some private universities have taken up that responsibility of the government under the Constitution, it is the obligation of the government to support the same at least by not putting any sort of hindrance in their activities. Considering this aspect of fundamental principles of state policy as well as the extended meaning of fundamental right to life, this Court has already knocked-down imposition of vat on the services provided to the patients by the Private Medical Hospitals in Manzil Morshed vs. Bangladesh and others, 15 BLC-351. The said decision of the High Court Division has been affirmed by the Appellate Division in NBR vs. Advocate Zulhas Uddin Ahmed, 18 BLC (AD)-52.

 

52.        Regard being had to the above facts and circumstances of the case as well as the discussions of law, this Court is of the view that, in view of the said fundamental principles of State policy as enunciated under Articles 15 and 17 as well as the fundamental right to life as guaranteed under Article-32 of the Constitution and the above discussed unreasonable discrimination between private and public universities being hit by Articles 27 and 31 of the Constitution and the lack of  delegatee-government’s power to issue the impugned SROs, we find merit in the Rules and as such the same should be made absolute.

 

53.        In the result, the Rules are made absolute without any order as to costs. Accordingly, the impugned SROs withdrawing tax exemptions and thereby imposing 15% tax, in whatever names, are hereby declared to be ultra-vires the Constitution and Income Tax Ordinance, 1984 and those have been issued without lawful authority and are of no legal effect. At the same time, the impugned demands in the concerned writ petitions as against the petitioners demanding arrear taxes or advanced taxes and the impugned refusal of the respondents to refund the already realized tax pursuant to the said SROs, are hereby declared to be without lawful authority and are of no legal effect.

 

Since the respondents have already realized taxes pursuant to the said SROs in some cases, they are directed to refund the said tax to the respective petitioners within a period of thirty working days from the receipt of the copy of this judgment. However, it is expected that, the petitioner-universities shall utilize the said refunded tax amount towards reduction of tuition fees and educational expenses of the students of the concerned Private Universities under the direct supervision of the University Grants Commission. 

 

Communicate this.

 

Ed.

 



W. P. Nos. 9562-9564 of 2008; W. P. Nos. 9566-9567 of 2008 and W. P. Nos. 11545-11546 of 2015 With Writ Petition No. 1969 of 2009 With W.P. Nos. 1131 of 2009; W.P. No. 5176 OF 2010; W.P. No. 3371 of 2015; W.P. No. 3423 OF 2012; W.P. No. 986 of 2011 and 4878 of 2013 With W.P. No. 8507 of 2010 and W.P. No. 987 OF 2011 With W.P. No. 6861 of 2012; W.P. No. 12558 of 2012; W.P. No. 2110 of 2013; W.P. No. 5793 of 2014; W.P. No. 5794 of 2014; W.P. No. 5795 of 2014; W.P. No. 10769 of 2014 and W. P. No. 9733 of 2015 With W.P. No. 8985 of 2010 With W.P. No. 10847 of 2015 With W. P. No. 8697 of 2011; W.P. No. 8930 of 2011; W. P. No. 3681 of 2013; W.P. No. 3682 of 2013 and W.P. No. 6404 OF 2014 With W.P. No. 6177 of 2013 With W.P. No. 1891 of 2015 With W.P. No. 2510 OF 2015 With W.P. Nos. 4048-4050 of 2013 and W.P. No. 14609 of 2012 With W.P. No. 12885 of 2015 With W.P. No. 13246 of 2015; In W. P. No. 2682 OF 2016; W.P. No. 8187 OF 2015 and W. P. No. 11195 of 2014 With W.P. No. 10929 of 2014; W.P. No. 9934 of 2015 With  W.P. No. 11840 of 2015.