Case No: Civil Petition for Leave to Appeal Nos. 606 and 614 of 1997
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: B Hossain,Mr. Mohammadullah,,
Citation: 50 DLR (AD) (1998) 113
Case Year: 1998
Appellant: Export Promotion Bureau
Respondent: Acqua Foods Ltd.
Subject: Business and Commercial Law,
Delivery Date: 1997-12-11
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Vice Chairman, Export-Promotion Bureau
Government of Bangladesh
Acqua Foods Limited and others
December 11, 1997.
The Importers, Exporters and Indenters (Registration) Order, 1981,
Articles 6, 8 & 9
There had been violation of natural justice in not giving a hearing to the writ petitioners and the Controller of Import and Export acted at the behest of the government without taking necessary steps under article 6,8 and 9 of the Importers, Exporters and Indentors (Registration) Order, 1981 passed the order of cancellation of Export Registration Certificate of the petitioner. In such circumstances impugned notification cannot stand………….. (8)
Mohammadullah, Advocate instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Petitioner (In Civil Petition No. 606 of 1997).
B Hossain, Deputy Attorney-General instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Petitioner (In Civil Petition No. 614 of 1997).
Rafique-ul Huq, Senior Advocate, instructed by Mvi Md Wahidullah, Advocate-on-Record— For Respondent Nos. 1 & 2 (In both the Petitions).
Not represented — Respondent Nos. 3-6 (In both the Petitions).
Civil Petition for Leave to Appeal Nos. 606 and 614 of 1997
(From the judgment and order dated 24 February 1997 passed by the High Court Division in Writ Petition No. 2822 of 1996).
Bimalendu Bikash Roy Choudhury J:
1. Both the petitions for leave to appeal are directed against the judgment and order dated 24 February 1996 passed by a Division Bench of the High Court Division in Writ Petition No. 2822 of 1996 making the Rule absolute and declaring Public Notification No. 21(95-96) Import dated 24 January 1996 (Annexure-A to the writ petition) to have been made without lawful authority.
2. CPLA No. 606 of 1997 has been presented by the Vice-Chairman, Export Promotion Bureau. CPLA No. 614 of 1997 is by the Government of Bangladesh, but it is out of time 81 days and no satisfactory explanation has been offered for the delay.
3. Acqua Foods Limited and its Managing Director were the writ petitioners who have been engaged in business of processing and exporting shrimps to foreign countries since 1982. In 1995 the writ petitioners supplied shrimps to three concerns, (a) Ocean Garden Products Inc. (b) Clouston Food Group, and (c) Key Sea Food Imports Inc, all of USA. Before shipment, all the relevant authorities including the buyers’ agents had inspected the shrimps under shipment by random selection at all stages. The Fish Inspection and Quality Control Department of the Government, Lloyds surveyors, buyers’ surveyors, clearing agents and Customs authority had all done the inspection and allowed the shrimps to be loaded in the vessels. At the port of destination, the buyers also accepted the shrimps and took them to their respective warehouses. After 25 days of taking delivery of the shrimps the buyers directly lodged complaints to the Export Promotion Bureau, briefly the EPB, without raising any objection to the writ petitioners as to the quality and size of the shrimps. The EPB thereafter brought the matter to the notice of the Government in the Ministry of Commerce who gave direction to the Controller of Imports and Exports and latter cancelled the writ petitioners’ Export. Registration Certificate (ERC) and issued the above mentioned public notification.
4. The Writ Petitioners challenged the cancellation of their Registration Certificate on the grounds that it was violative of the principles of natural justice as no show cause notice was issued to them prior to the cancellation; that the Controller of Imports and Exports had not exercised his independent decision but had acted upon the direction of the Government and that the Controller of Imports and Exports had not followed the procedure for cancellation of the Registration Certificate.
5. The Vice-Chairman, Export Promotion Bureau and the Government resisted the claim of the writ petitioners. While the former filed an affidavit-in-opposition, the latter filed none.
6. The High Court Division held that the principles of natural justice had been violated in the instant case for not giving an opportunity of hearing to the writ petitioners. Again, the Controller of Imports and Exports had acted merely under the direction of the Government without independent exercise of his power in accordance with Articles 6, 8 and 9 of the Importers, Exporters and Indentors (Registration) Order, 1981. Accordingly, the High Court Division declared the impugned Notification to have been made without lawful authority and of no legal effect.
7. The learned Counsel for the petitioner, Export Promotion Bureau, urged before us that the writ petition involved disputed question of facts for which no writ lay; secondly, the order of the Government upon which the impugned Notification had been issued had not been challenged by the writ petitioners and, therefore, the judgment of the High Court Division was not sustainable in law.
8. From the admitted facts of the case it is seen that there had been violation of natural justice in not giving a hearing to the writ petitioners and that the Controller of Imports and Exports had acted at the behest of the Government without himself taking the necessary steps under articles 6, 8 and 9 of the Importers, Exporters and Indentors (Registration) Order, 1981. In these circumstances the impugned Public Notification (Annexure-A to the writ petition) cannot stand, even without a challenge of the Government’s action.
The leave petitions are, therefore, dismissed.