Monday, July 22, 2019 | ePaper

Principal of Natural Justice

Person Must Be Allowed Adequate Opportunity

  • Print
High Court Division :
(Special Original jurisdiction)

Sheikh Hassan Arif   J
Md Badruzzaman    J
Abu Syed Bhuiyan
(Md) and others….
…………Petitioners
                VS
Dhaka North and South
City Corporation and
others……Respondents

Judgment
January 9th, 2018
Local Government (City Corporation)
 Ain, (LX of 2009 )
Section 22
Dhaka North & South City Corporation
Market Upa Ain 2013
Article 25
Principle audi alteram partem-A person must be allowed an adequate opportunity to his case where certain interests and rights may be adversely affected by a decision maker. . ..... (13)
AM Amin Uddin with Yousuf Khan Rajib Advocates-For the Petitioners
 (In both Writ Petitions).
Md Shahjahan with Jagadish Chandra Saha Advocates-For the Respondents.
 (In Writ Petition No. 5929 of 2014).
Judgment
Md Badruzzaman J : Since common questions of law and facts are involve in both the rules, those have been taken together for hearing and now are being disposed of by this single judgment.
2. In both writ petitions the petitioners have  called in question the legality of the provisions under Articles 16(2)/20, 30 and 25(2) of the Dhaka North City Corporation Market Upa Ain, 2013 (Annexure-E to WP No. 5929 of 2014)  and that of the Dhaka South City Corporation Market Upa Ain, 2013 (Annexure-D to WP No. 1908 of 2014) issued by respondent No.3 by the order of respondent No.1 (in both petitions) which have been incorporated therein for regulation and operation of the allotment agreements of the shops under those two city corporations. The petitioners also prayed for a direction upon the respondents to rescind/ remove those provisions under Articles 16(2)/20, 30 and 25(2) from those bye-laws and accordingly rules nisi were issued.
3. At the time of issuance of rules in both writ petitions this Court vide ad-interim order dated 16-6-2014 and 12-3-2014 directed the parties to maintain status-quo in respect of the possession of the shops in question for a period of 3 (three) months which were subsequently extended from time to time.
4. Thereafter, by another ad-interim order the respondents were directed to accept monthly rents from the petitioners as per the decision taken in the meeting dated 1-4-2014.
5. Short facts, relevant for the purpose of the disposal of the rules are that, the petitioners (in both writ petitions) are shop owners of different markets under the then Dhaka City Corporation and now Dhaka North and South City Corporations respectively who got allotment of the aforesaid shops by different allotment letters followed by deeds of agreement in the terms and conditions stiptl1ated therein. Thereafter, Dhaka South City Corporation and Dhaka North City Corporation in exercising power under Section 122(2) of Local Government (City Corporation) Ain, 2009 framed "Dhaka South City Corporation Market Upa Ain, 2013" and "Dhaka North City Corporation Market Upa Ain, 2013" respectively incorporating identical provisions under Articles 16(2), 20, 30 and 25(2) of both Upa Ain which were published in the Bangladesh Gazette dated 31.7.2013 and 4-8-2013 (Annexure D to WP No. 1908 of 2014 & Annexure E to WP No. 5929 of 2014 respectively). Thereafter, the petitioners have challenged the legality of the aforesaid provisions of Articles 16(2), 20, 30 and 25(2) and obtained the aforesaid rules as stated above.
6. The rule issued in Writ Petition No. 5929 of 2014 is opposed by respondent-Dhaka North City Corporation by filing affidavit-in-opposition. But none appears to oppose the rule issued in Writ Petition No. 1908 of 2014.
7. Mr AM Amin Uddin, learned Advocate appearing for the petitioners of both writ petitions at the very outset submits that he has instructions from his clients for non-prose-cution of the rules by which the petitioners have challenged the legality of Articles 16(2), 20 and 30 of both Upa Ain and accordingly, he prays for discharging the rules for non-prosecution to that effect.
8. On such prayer, the rules issued in both writ petitions are discharged for non prosecution in-part so far as it relates to the legality of Articles 16(2), 20 and 30 incorporated in both Upa Ain.
9. Learned Advocate by drawing this Court's attention to the provisions under Article 25(2) of both Upa Ain submits that those provisions  are identical which incorporated deeming provision therein in that an allotment of an allottee of a shop under city corporation shall stand cancelled in the event of violation of or non-compliance with any terms of such allotment by the allottee which means that an allotment of an allottee of a shop shall be automatically cancelled for violation of any condition by the allottee without giving any notice or without giving him an opportunity of being heard which is a clear violation of the principle of natural justice and, as such, the same should be declared to have been issued without any lawful authority and is of no legal effect with a direction to struck off from those bye-laws.
10. Mr Md Shahjahan, learned Advocate appearing for respondent Dhaka North City Corporation, on the other hand, frankly concedes that sub-article (2) of Article 25 of Dhaka North City Corporation Market Upa Ain has mistakenly inserted in the bye-laws and he has clear instruction from his client that the same would be omitted there from if so directed by this Court.
11. We have heard the learned Advocates and perused the records. It appears that the petitioners are allottees of different shops under Dhaka North and South City Corporations by different allotment letters followed by deeds of agreement wherein certain conditions have been incorporated to be followed by the allottees. The allotment letters and deeds of agreements of the petitioners have been executed before the publication of the byelaws. While the petitioners have been running their business under the said allotment letters and agreements Dhaka North City Corporation and Dhaka South City Corporation in exercising power under sub-section (2) of section 22 of Local Government (City Corporation) Ain, 2009 framed those bye-laws incorporating various provisions therein in respect of the shops to be managed and administered by the city corporation and to be followed by the allottees of the shops in which sub-article (2) of Article 25 has been inserted in the following manner:-
”২৫ । বরাদ্দ বাতিল---
(১)----------------------------
(২) কোন বরাদ্দ প্রাপক বরাদ্দ পত্রের শর্ত প্রতিপালনে ব্যর্থ হইলে বা বাস্তবায়ন না করিলে এবং নির্ধারিত পদ্ধতিতে উহা পূরণ করিতে না পারিলে উক্ত সময় অতিক্রান্ত হওয়ার সঙ্গে সঙ্গে বরাদ্দপত্র স্বয়ংক্রিয়ভাবে বাতিল হইয়া যাইবে এবং এই ব্যাপারে কোন আনুষ্ঠানিক আদেশের প্রয়োজন হইবে না ।”
12. A plain reading of the provision under sub-article (2) of Article 25 of the bye-laws suggests that an allotment letter of an allottee shall stand cancelled in the event of failure on the part of the allottee in fulfilling any terms of the allotment letter and no formal order would be required for such cancellation. The learned Advocate for the petitioners contends that such provision is ex-facie against the principle of natural justice.
13. The principle audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. This rule requires that a person must be allowed an adequate opportunity to his case where certain interests and rights may be adversely affected by a decision maker. Over years, invariably in every statute, provision relating to natural justice by way of affording an opportunity of being heard, are inserted to save from arbitrariness. It is settled principle that where there is no, specific provision in the statute requiring the affected person to be heard, yet the justice of the common law will supply the omission of the legislature.
14. Since the impugned provision under Article. 25(2) of the bye-laws provided an arbitrary power of cancellation of allotment letter of an allottee of shops under the city corporations without giving the affected allottee an opportunity of being heard, which might adversely affect the interests and rights of such allottee, we are of the view that the said 'provisions under Article 25(2) is clearly violative of the principle of natural justice. Accordingly, the said provisions cannot sustain in the eye of law and should be struck off from the said 'bye-laws'.
15. In view of the above we find merit in, the rules so far as it' relates to the provision under sub article (2) of Article 25 of the 'bye-laws'.
16. In the result, the rules are made absolute in part, however, without any order as to costs.
17. The provisions under sub-article (2) of Article 25 of  “ ঢাকা উত্তর সিটি কর্পোরেশন মার্কেট উপ আইন” ২০১৩  ধহফ ঢাকা দক্ষিণ সিটি কর্পোরেশন মার্কেট উপ আইন 2013  are declared to have been incorporated therein without any lawful authority and of no legal effect and those are struck off from those bye-laws.
18. The order of status-quo granted earlier by this Court is hereby vacated.

More News For this Category

Section 55 Of The VAT Act

(From previous issue) :21. In Sekandar Spinning Mills Ltd. Vs Commissioner, Customs Excise and VAT reported in 63 DLR 272 while resolving the issue as to issuing demand notice

Land-locked Property

Appellate Division : (Civil) Md Abdul Wahhab Miah J     Md Imman Ali  J     AHM Shamsuddin Choudhury J Anowara……………………….………….Appellants               vsAbdul Rab Hawlader and another…………………......................RespondentsJudgment August 5th, 2015 Easement Act

Aggrieved Can Appeal Against Judgment By 90 Days

High Court Division :(Special Statutory Jurisdiction) Borhanuddin J Sardar Md Rashed Jahangir J Mohammad Hanif………..…….Appellant           vs Customs, Excise and VAT Appellate TribunalDhaka, and others………..…Respondents    Judgment     November 20th

Failure of Repayment

(From previous issue) :8. Subsequently, the names of the petitioners were classified in the lists of CIB and the petitioners challenged in Writ Petition Nos. 7161-62 of 2017 &

Section 55 Of The VAT Act

High Court Division :(Special Original Jurisdiction) Farah Mahbub J SM Maniruzzaman J BRAC Bank Limited ... ................. Petitioner……………………………VS National Board of Revenue and others…….………Respondents Judgment November 7th, 2018 Constitution of

Change in Waqf Management

(From previous issue) 19. The one and only core ground taken by the writ petitioner is that the inquiry officer (respondent No.4) without notifying the petitioner conducted the alleged

Failure of Repayment

High Court Division :(Special Original Jurisdiction) Md Ashfaqul Islam J Mohammad Ali J Nassa Tipei Spinners Limited and others .............Petitioners                    vs     Judgment February 26th, 2019 Bangladesh 

Code Of Criminal Procedure

High Court Division :(Criminal Miscellaneous Jurisdiction) ANM Bashir Ullah   J Mustafa Zaman Islam J  Sumon Ahmed (Md) alias Sumon-----------Accused-Petitioner             vs State--------Respondent Judgment July 24th, 2018     Code of

Change in Waqf Management

High Court Division : (Special Original Jurisdiction) Moyeenul Islam  Chowdhury J Md Ashraful Kamal J Habib Ahmed Shukur     Morshed……………Petitioner         vs  Waqf Administrator Bangladesh and others……………. Respondents JudgmentSeptember

Sale And Distribution Of Proceeds

High Court Division :(Civil Revisional Jurisdiction)Quazi Reza-ul Hoque JMohammad Ullah JAbdul Hai Munshi...................Petitioner vsDeputy General Manager, Sonali Bank Limited, Dhaka and 3 (three) others. Opposite- Parties Code of Civil