Tafijul Huq Sarker Vs. Bangladesh and others, II ADC (2005) 254

Case No: Civil Appeal No. 79 of 199

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Sharifuddin Chaklader,,

Citation: II ADC (2005) 254

Case Year: 2005

Appellant: Tafijul Huq Sarker

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction, Wakf,

Delivery Date: 1998-5-28

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ
Latifur Rahman, J.
Mohammad Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Tafijul Huq Sarker
............Appellant
Vs.
Bangladesh and others
..............Respondents
 
Judgment
May 28, 1998.
 
The Consistent view of our court is that an alternative remedy by way of appeal under a statute will no be a bar to a writ petition under Article 102(2) of the Constitution (which corresponds to Article 98(2) of 1962 Constitution) if there is a non-relaxable pre-condition for bringing the appeal…. In the instant case the constraint of relinquishing the office of Mutawalli prior to bringing an appeal is non-relaxable. Therefore the High Court Division was wrong in summarily rejecting the writ petition merely because the appellant had an alternative remedy under 32(2) of the Ordinance.…. (9 & 10)
 
Cases Referred to-
Nuruzzaman Chowdhury Vs. Secretary, Education Deptt. 17 DLR (1965) p. 46; Osmania Glass Factory Vs. Assistant Collector of Customs, 19 DLR (1967) p. 592; Collector of Customs, Chittagong Vs. A Hannan, 42 DLR (AD) 167; M/s. Mohammad Brothers Vs. The Collector of Customs 16 BLD (AD) 83; Zahirul Islam Vs. National Bank Ltd. 46 (DLR) (AD) 191; Nagina Silk Mills Ltd. Vs. Income Tax Officer 15 (DLR (SC) 181.
 
Lawyers Involved:
S. M. Zillul Haque, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellant.
Sharifuddin Chaklader, Advocate-on-Record–For the Respondent No. 2-4.
Not Represented - Respondent No. 1.
 
Civil Appeal No. 79 of 199
(From the Judgment and Order dated 30 August 1993 passed by the High Court Division in Writ Petition No. 1432 of 1993).
 
JUDGMENT
 
Bimalendu Bikash Roy Choudhury J.
 
          This is a writ petitioner's appeal by way of leave from the summary rejection of Writ Petition No. 1432 of on 30 August, 1993 by a Division Bench of the High Court Division.
 
2. The writ petition arose in this way. One Faizuddin Sarker, father of respondent Nos. 3 and 4, was the Mutawalli of Munshi Kudrut Ullah Waqf Estate under E.G. No. 4429 Dinajpur (now Thakurgaon). By an order dated 3 September 1982 the Administrator of Waqfs, Bangladesh, removed him from his office of Mutawalli on the ground of breach of trust, misappropriation and his management of the waqf properties. The appellant who is a great grand son of the Waqif was then made Mutawalli in his place. After a lapse of about three years respondent Nos. 3 and 4 brought a suit, being other Class Suit No. 45 of 1985, in the Court of Assistant Judge, Thakurgaon, for removal of the appellant from the office. They also prayed for their appointment as joint Mutawalli in his place. During the pendency of the suit respon­dent Nos. 3 and 4 obtained on 26 September 1987 an order of appointment of a receiver in respect of the said waqf estate. The appellant took Miscellaneous Appeal No. 22 of 1987 therefrom and got the order stayed. The appeal was dismissed on 25 April 1993. The aggrieved appellant then preferred Civil Revision No. 1519 of 1993 to the High Court Division. A Single Bench of the said court issued a Rule therein and stayed operation of the appellate judgment. When the revision case was pending respondent Nos. 3 and 4 filed before the Administrator of Waqfs an application under sub-section (1) of section 32 of the Waqfs Ordinance, 1962, hereinafter referred to as the Ordinance, for removal of the appellant from the office of Mutawalli of the waqf estate. The Administrator of Waqfs passed an order on 8 July 1993 removing the appellant from the said office and appointed T.N.O. Haripur as the offi­cial Mutawalli until further orders. Without fil­ing any appeal as provided in sub section (2) of section 32 the appellant challenged this order in Writ Petition No. 1432 of 1993 on the ground inter alia that the application for removal of the appellant from-the office of Mutawalli of the waqf estate was filed upon the self same allega­tions as were made in Other Class Suit No. 45 of 1985.
 
3. A Division Bench of the High Court Division took the view that there was a provision for appeal against the order of the Administrator of Waqfs before the District Judge under sub-section (2) of section 32 of the Ordinance which was an alternative and effica­cious remedy not availed of by the appellant. Accordingly the learned Judges of the said court summarily rejected the writ petition as not maintainable.
 
4. The appellant represented by S. M Zillul Haque, learned Counsel submits that the reme­dy of appeal provided in sub-section (2) of sec­tion 32 of the Ordinance was not an equally efficacious remedy since the appellant would have to vacate his office of Mutawalli as a condition precedent to such appeal. He continues that the case of Nuruzzaman Chowdhury Vs. Secretary, Education Deptt. 17 DLR (1965) p. 46 squarely supports the view that an alterna­tive remedy in such circumstances would not be an equally efficacious remedy on account of the constraint upon the appellant to vacate his office of Mutawalli.
 
5. In the Cases of Nuruaazman Chowdhury (supra) a Division Bench of the Dhaka High Court had the occasion to consider the same question as here in a similar situation. Sattar J (as he then was) speaking for the court answered it thus:
 
"It is provided in sub-section (2) of section 32 that a Mutawalli aggrieved by an order under sub-section (1) may, within three months from the date of communication of such order, appeal to the District Judge against such order of removal provided that no application shall lie against an order under sub-section (I) unless the Mutawalli has made over charge of the waqf to the new Mutawalli appointed under sub-section (4). In these circum­stances, it has to be considered whether the remedy of appeal provided in sub section (2) of section 32 of the Ordinance is an adequate remedy within the meaning of Article 98 of the Constitution. In our view as the remedy of appeal provided in sub­section (2) of section 32 is conditioned by the fact that the appellant has to make over possession before filing the appeal, it is not an adequate remedy within the meaning of Article 98. The argument of Israil that even if the Mutawalli makes over charge he will be entitled to get back possession in case of success in the appeal is not a con­sideration for determining whether the remedy provided in the Ordinance is an adequate one. It is certainly more incon­venient than the remedy provided in Article 98 and in that view of the matter at least it is not an adequate remedy."
 
This decision appears not to have been dis­turbed till date.
 
6. In Osmania Glass Factory Vs. Assistant Collector of Customs, 19 DLR (1967) p. 592 another Division Bench of the said High Court took the view that a right of appeal which has a pre-condition of depositing the tax imposed cannot be considered equally adequate remedy under Article 98 of 1962 Constitution of for­mer Pakistan.
 
7. In Collector of Customs, Chittagong Vs. A Hannan, 42 DLR (AD) 167 a similar view was taken. It was held that the alternative rem­edy provided under section 194 of the Customs Act, 1969 is not an equally efficacious remedy under Article 102(2) of our constitution because it stipulated deposit of 50% of the amount of penalty or the duty demanded as condition precedent. Subsequently this view was modi­fied in M/s. Mohammad Brothers Vs. The Collector of Customs, 16 BLD (AD) 83. It was observed in that case: 
 
"The fact that petitioner has to deposit the full amount of penalty before filing appeal is not an absolute provision in the Customs Act. There are provisions in the said Act itself mitigating the rigour of the said provision. It is only when a provision for appeal in a statute is attended with an inviolable and non-relxable condition of payment of fine or extra duty in full that it can be said that the petitioner has no equally efficacious remedy. The Customs Act relaxes this condition by various provisos. The petitioner can still prefer an appeal to the Board of Revenue which will no doubt consider that the time spent by the petitioner in pursuing the writ peti­tion may be a good cause for entertain­ing the appeal beyond time and the petitioner will be free to agitate all the submission made by him before the appellate body which will not be inhib­ited by any observation or finding on the merit of the petitioner's case." 
 
8. We cannot miss sight of the case of Zahirul Islam Vs. National Bank Ltd. 46 (DLR) (AD) 191 where this court laid down that the remedy of appeal provided by Artha Rin Adalat Act which is attended with a condition prece­dent of deposit of half the decretal dues was a bar to a writ petition. This case distinguished itself from the case of Nagina Silk Mills Ltd. Vs. Income Tax Officer reported in 15 (DLR (SC) 181 requiring deposit prior to appeal in that" Nagina Silk Mills Ltd. was a case under the Income Tax Act. In the present case a regu­lar suit has been filed and a decree has been given against the petitioner. If he has to deposit half of the decretal dues at the time of the filing of the appeal, that is a condition of appeal in a regular suit with which Income Tax appeals and Customs appeals cannot be equated."
 
9. Thus the consistent view of our courts is that an alternative remedy by way of appeal under a statute will not be a bar to a writ petition under Article 102(2) of the Constitution (which corresponds to Article 98(2) of 1962 Constitution) if there is a non-relaxable pre­condition for brining the appeal.
 
10.  In the instant case the constraint of relinquishing the office of Mutawalli prior to brining an appeal is non-relaxable. Therefore the High Court Division was wrong in summar­ily rejecting the writ petition merely because the appellant had an alternative remedy under sub-section (2) of section 32 of the Ordinance.
 
In the result, the appeal is allowed. The impugned order be set aside and the matter be sent back on remand to the High Court Division for disposal on merit.
 
There shall be no order as to costs.
 
Ed.