Sarwar Kamal Vs. Bangladesh and others 2017 (1) LNJ 393

Case No: Writ Petition No. 13157 of 2015

Judge: Moyeenul Islam Chowdhury. J.

Court: High Court Division,

Advocate: Fida M. Kamal, Md. Motaher Hossain,

Citation: 2017 (1) LNJ 393

Case Year: 2017

Appellant: Sarwar Kamal

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-07-13

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

Moyeenul Islam Chowdhury, J

And

Md. Iqbal Kabir, J

Judgment on

26.01.2017

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Sarwar Kamal

. . . Petitioner

-Versus-

Bangladesh represented by the Secretary, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka-1000 and others

. . . Respondents

Supreme Court of Bangladesh (High Court Division) Rules, 1973

Rule 3(7)(b) and (c)

Non-mentioning of the earlier two Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 specifically in paragraph 27 of the Writ Petition before us and non-making of any statement in the present Writ Petition in respect of any new/different ground and non-annexing of the rejection orders of the earlier two Writ Petitions, according to us, have disentitled the petitioner to move the instant Writ Petition and obtain any Rule. In other words, for violation of Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973, the present Writ Petition cannot be maintainable. Consequently, the Rule is incompetent.                                                          . . . (22)

Indian Nut Products and others Vs. Union of India and others, (1994) 4 SCC 269; M/s. Mahabir Jute Mills Ltd. Gorakhpur Vs. Shibban Lal Saxena and others, AIR 1975 SC 2057; East Coast Railway and another Vs. Mahadev Appa Rao and others, (2010) 7 SCC 678; S. N. Mukherjee Vs. Union of India, AIR 1990 SC 1984; Solicitor, Government of Bangladesh Vs. Syed Sanwar Ali and others, 27 DLR (AD) 16 and Sheikh Abdus Sabur Vs. Returning Officer, District Education Officer-in-Charge, Gopalganj and others, 41 DLR (AD) 30, ref.

Mr. Fida M. Kamal with

Mr. Tawhidul Islam, Advocates

. . .For the petitioner.

Mr. Md. Motaher Hossain (Sazu), DAG with

Ms. Purabi Rani Sharma, AAG and

Ms. Purabi Saha, AAG

. . .For the respondent No. 1.

JUDGMENT

Moyeenul Islam Chowdhury, JOn an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why Section 31 of ÙÛ¡e£u plL¡l (®f±lpi¡) BCe, 2009 (2009 m‡bi 58 ew BCe) should not be declared to be void and ultra vires the Constitution and why the notification as contained in Memo No. 46.00.0000.0636.27. 015.15-2188/1(8) dated 24.11.2015 issued by the respondent no. 2 under the signature of the respondent no. 3 suspending the petitioner from the office of Mayor, Cox’s Bazar Pourashava, Cox’s Bazar should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.            The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

         Section 31 of ÙÛ¡e£u plL¡l (®f±lpi¡) BCe, 2009 (2009 m‡bi 58 ew BCe) (hereinafter referred to as the Act No. 58 of 2009) provides, inter alia, that a Mayor may be suspended if a proceeding has been initiated against him for his removal from office or a charge-sheet filed against him in a criminal proceeding has been accepted by a Court and the authority is of the opinion that exercising the power of Mayor is repugnant to the interest of the Pourashava or undesirable from the perspective of administration. Anyway, the election of Cox’s Bazar Pourashava was held peacefully on 27.01.2011 and the petitioner was duly elected as Mayor and 16(sixteen) others were also elected as Councillors of the Pourashava and the result of the election was published in the Official Gazette on 02.02.2011. The petitioner took oath of office as Mayor of Cox’s Bazar Pourashava on 20.07.2013 and since then he had been performing the duties and functions of the Mayor of the Pourashava till he was suspended. At the behest of some rival political groups in the locality, the petitioner was made an accused in G. R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 under Sections 3/3A/6 of the Explosive Substances Act, 1908. The First Information Report was lodged by one Sub-Inspector of Cox’s Bazar Sadar Model Police Station naming as many as 216 persons including the petitioner and it was stated therein that the petitioner was involved in arranging and bringing out a violent procession on 15.02.2013 in Cox’s Bazar with sticks, iron rods, explosive substances, etc. in support of the leaders of Jamat-e-Islami who were accused of war crimes. Although the petitioner was not physically present in Cox’s Bazar at the time of the alleged occurrence mentioned in the First Information Report, he was falsely implicated in that case out of political animosity. He obtained bail from the Court and he has been enjoying the privilege of bail till date. However, the police submitted charge-sheet no. 630 dated 21.10.2014 against 273 persons including the petitioner in that case. In due course, the record of the case was sent to the Special Tribunal No. 1, Cox’s Bazar and the same was registered as Special Tribunal Case No. 190 of 2015. The learned Special Tribunal Judge accepted the charge-sheet against the petitioner and others and fixed the next date of the case on 28.01.2016. But all of a sudden, the petitioner was suspended from his Mayoral post by the Memo No. 46.00.0000.0636.27.015.15-2188/1(8) dated 24.11.2015 issued by the respondent no. 2 under the signature of the respondent no. 3 on the pretext of acceptance of the charge-sheet against him in the said case and on the vague and unspecified apprehension that the exercise of power of the Mayor by the petitioner is repugnant to the interest of the Pourashava and undesirable from the perspective of administration. As per the direction contained in the Memo No. 46.00.0000.0636.27.015.15-22231/1(6) dated 30.11.2015 issued by the respondent no. 3, the petitioner handed over the charge of the Mayorship of Cox’s Bazar Pourashava to the panel Mayor vide Office Memo No. L„x ®f±lx/2015/2350 dated 01.12.2015. Mere implication of the petitioner in a criminal case does not indicate that his exercise of power as the Mayor is prejudicial to the interest of the Pourashava or undesirable or imprudent from administrative point of view. As the petitioner was illegally suspended from the Mayorship of the Pourashava by the impugned Memo dated 24.11.2015, that is liable to be struck down. As there is scope for indiscriminate use of the power spelt out in Section 31(1) of the Act No. 58 of 2009, the same is liable to be declared ultra vires the Constitution.

3.            In the Supplementary Affidavit dated 09.02.2016 filed on behalf of the petitioner, it has been averred that the petitioner was made an accused in G. R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 out of political rivalry.

4.            In the Supplementary Affidavit dated 15.05.2016 filed on behalf of the petitioner, it has been stated that the petitioner challenged the proceedings of G.R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 under Sections 3/3A/6 of the Explosive Substances Act, 1908 under Section 561A of the Code of Criminal Procedure before the High Court Division and ultimately by its judgment and order dated 11.04.2016, the High Court Division made the Rule absolute and thereby quashed the proceedings of the case pending before the Special Tribunal No. 1, Cox’s Bazar, so far as it related to the petitioner.

5.            The Rule has been contested on behalf of the respondent no. 2 by filing an Affidavit-in-Opposition. The case of the respondent no. 2, as set out therein, in brief, runs as under:

6.            It is true that the petitioner was elected as Mayor of Cox’s Bazar Pourashava. He was implicated in G. R. Case No. 131 of 2013 because of his participation in violent and terrorists activities. He was not implicated in the case out of any political rivalry or animosity. However, the election of the petitioner as Mayor of Cox’s Bazar Pourashava did not give him any unbridled power to act at his own sweet will. The Government acted in accordance with the provisions of Section 31 of the Act No. 58 of 2009 after acceptance of the charge-sheet against him by the Court in Special Tribunal Case No. 190 of 2015 arising out of G. R. Case No. 131 of 2013 corresponding to Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 and suspended him from the Mayorship of the Pourashava. The order of suspension of the petitioner from the Mayorship of the Pourashava was challenged before different Benches of the High Court Division; but he did not get any remedy. Although he challenged the vires of Sections 31 and 32 of the Act No. 58 of 2009 in Writ Petition Nos. 12081 of 2015 and 12362 of 2015 earlier, those were rejected as being not pressed. This being the scenario, the petitioner has filed the instant Writ Petition challenging the same in contravention of Rule 3(7)(b) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973. However, there is a presumption of constitutionality in favour of Section 31 of the Act No. 58 of 2009 and the burden is upon the petitioner to rebut that presumption of constitutionality. But he has signally failed to rebut the same. So the Rule is liable to be discharged with costs.

7.            In the Supplementary Affidavit-in-Opposition filed on behalf of the respondent no. 2, it has been mentioned that the petitioner was suspended from the post of Mayor of Cox’s Bazar Pourashava in keeping with the provisions of Section 31 of the Act No. 58 of 2009 and no due process was violated by the Government in this regard.

8.            In the Affidavit-in-Reply filed on behalf of the petitioner, it has been stated that the petitioner earlier filed 2(two) separate Writ Motions before other Division Benches of the High Court Division challenging the impugned notification; but those Motion petitions were eventually rejected as being not pressed and in none of those Writ Petitions, the constitutionality of Section 31 of the Act No. 58 of 2009 was under challenge.

9.             At the outset, Mr. Fida M. Kamal, learned Advocate appearing on behalf of the petitioner, submits that a reference to the impugned notification dated 24.11.2015 indicates that the order of suspension of the petitioner from the Mayorship of the Pourashava is evidently a flawed order in view of the fact that no consideration of the materials on record was made and no objective satisfaction of the prescribed authority was arrived at as contemplated by Section 31(1) of the Act No. 58 of 2009 and this being the position, the impugned order can not be sustained at all.

10.         Mr. Fida M. Kamal further submits that the language of Section 31(1) was mechanically used in the impugned notification dated 24.11.2015 and this mechanical use of the statutory language is not sufficient for placing the petitioner under suspension.

11.         Mr. Fida M. Kamal also submits that the impugned order is not a reasoned and speaking order; it is rather a cryptic and arbitrary order inasmuch as non-application of mind on the part of the prescribed authority to the materials on record is a dimension of arbitrariness.

12.         Mr. Fida M. Kamal next submits that it is the duty of the prescribed authority to examine the charge-sheet and come to a finding that the exercise of power by the petitioner as Mayor is prejudicial to the interest of the Pourashava or improper or imprudent from administrative point of view and as the impugned order does not show any application of mind to the materials on record by the prescribed authority, that is ‘de hors’ the law.

13.         Mr. Fida M. Kamal also submits that the petitioner filed 2(two) Writ Petitions earlier which were rejected as being not pressed and subsequently on a new ground, they have filed the present Writ Petition and by that reason, the instant Rule is maintainable.

14.         In support of the above submissions, Mr. Fida M. Kamal has drawn our attention to the decisions in the cases of Indian Nut Products and others…Vs…Union of India and others, (1994) 4 SCC 269; M/s. Mahabir Jute Mills Ltd. Gorakhpur…Vs…Shibban Lal Saxena and others, AIR 1975 SC 2057; East Coast Railway and another…Vs…Mahadev Appa Rao and others, (2010) 7 SCC 678 and S. N. Mukherjee…Vs…Union of India, AIR 1990 SC 1984.

15.         Per contra, Mr. Md. Motaher Hossain (Sazu), learned Deputy Attorney-General appearing on behalf of the respondent no. 2, submits that where the words used in Section 31(1) of the Act No. 58 of 2009 are clear and unambiguous, the Court is bound to apply the law, even if such application causes hardship and injustice to any party. In this respect, Mr. Md. Motaher Hossain (Sazu) has relied upon the decision in the case of Solicitor, Government of Bangladesh…Vs…Syed Sanwar Ali and others, 27 DLR (AD) 16.

16.         Mr. Md. Motaher Hossain (Sazu) next submits that there is a presumption of constitutionality in favour of Section 31 of the Act No. 58 of 2009 and the petitioner has singularly failed to rebut that presumption. With regard to the constitutional validity of Section 31 of the Act No. 58 of 2009, Mr. Md. Motaher Hossain (Sazu) has referred to the decision in the case of Sheikh Abdus Sabur ..Vs.. Returning Officer, District Education Officer-in-Charge, Gopalganj and others, 41 DLR (AD) 30.

17.         We have heard the submissions of the learned Advocate Mr. Fida M. Kamal and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) and perused the Writ Petition, Supplementary Affidavits, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition, Affidavit-in-Reply and relevant Annexures annexed thereto.

18.         The first bone of contention between the parties pertains to the maintainability of the instant Writ Petition when admittedly the earlier two Writ Petitions were rejected as being not pressed. In this context, Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973 may be adverted to:

19.         Rule 3 (7) of the aforementioned Rules contemplates that where any Motion application/petition is-

(a)    .  .  . ;

(b)   summarily rejected on merit or is rejected for its being not pressed or for any other reason, a fresh application/petition on the same ground/cause shall not be made;

(c)    rejected as mentioned in clause (b) above and a fresh application is made on a new/different ground, it must contain a specific reference to the previous Motion application(s)/ petition(s) and the rejection order(s).

20.         In this connection, paragraph 27 of the Writ Petition may be quoted below verbatim:

“27. That the petitioner earlier filed two separate writ motions before other Division Benches of the High Court Division challenging this impugned notification, but those petitions were eventually not pressed by the petitioner; however, in none of those writ petitions, the constitutionality of Section 31 of the Act was under challenge.”

21.         It is stunning to note that the petitioner has not cared to specifically refer to those two Writ Petitions which were earlier moved before two other Division Benches of the High Court Division and rejected as being not pressed. It appears to us that he has referred to two separate Writ Motions in paragraph 27 of the Writ Petition in a very vague and evasive manner without specifically mentioning the Writ Petition numbers. We fail to understand as to why he has refrained from specifically mentioning the earlier two Writ Petitions in paragraph 27 of the Writ Petition. Most importantly, it is the respondent no. 2 who in his Affidavit-in-Opposition has made a specific statement that the two earlier Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 were rejected as being not pressed and the rejection orders have been annexed as Annexures-‘1’ and ‘2’ thereto. It transpires from Annexures-‘1’ and ‘2’ that in the cause-titles of those two earlier Writ Petitions, there was a reference to Sections 31 and 32 of the Act No. 58 of 2009; albeit it has been asserted that the petitioner did not challenge the vires of those Sections in those Writ Petitions. Curiously enough, no statement has been made specifically within the four corners of the present Writ Petition as regards the new/different ground, if any, that has been taken therein. On top of that, the earlier rejection orders of the Writ Petition Nos. 12081 of 2015 and 12362 of 2015 have not been annexed to the instant Writ Petition at the time of Motion hearing.

22.         What we are driving at boils down to this: non-mentioning of the earlier two Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 specifically in paragraph 27 of the Writ Petition before us and non-making of any statement in the present Writ Petition in respect of any new/different ground and non-annexing of the rejection orders of the earlier two Writ Petitions, according to us, have disentitled the petitioner to move the instant Writ Petition and obtain any Rule. In other words, for violation of Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973, the present Writ Petition can not be maintainable. Consequently, the Rule is incompetent.

23.         In the facts and circumstances of the case, we feel constrained to observe that the conduct of the petitioner was not fair in obtaining the instant Rule on the basis of the third Writ Petition. A Writ Court is also a Court of equity. There goes an age-old legal dictum- “One who seeks equity must come with clean hands.” As the hands of the petitioner are unclean, he must be shown the door.

24.         As we have found the Rule incompetent, we refrain from addressing the submissions of the learned Advocate Mr. Fida M. Kamal and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) with reference to the merit of the case.

         In view of what have been stated above, the Rule is discharged as being not maintainable with costs of Tk. 20,000/- (twenty thousand) only.

Ed.



Writ Petition No. 13157 of 2015