Md. Tajul Islam Vs. Bangladesh, 2006, 35 CLC (AD)

Wednesday, 03 December 2008 19:05

Written by Md. Ershadul Karim

Supreme Court

Appellate Division

(Civil)

Present:

Syed JR Mudassir Husain CJ

MM Ruhul Amin J

Amirul Kabir Chowdhury J

Md. Tajul Islam. .....Petitioner

Vs.

The Government of the People's (Republic) of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others ......Respondents

Judgment

May 02, 2006.

Lawyers Involved:

Dr. M. Zahir, Senior Advocate, instructed by Md. Nurul Islam Chowdhury, Advocate-on-Record - For the Petitioner.

A. J. Mohammad Ali, Attorney General, instructed by Zainal Abedin, Advocate-on-Record - For the Respondents.

Civil Petition for Leave to Appeal No. 185 of 2006.

(From the judgment and order dated 05-01- 2006 passed by the High Court Division in Writ Petition No. 4171 of 2006).

Judgment

Syed J.R. Mudassir Husain CJ. - This civil petition for leave to appeal is directed against the judgment and order dated 05-01-2006 passed by a Division Bench of the High Court Division in Writ Petition No. 4171 of 2004 discharging the Rule.

2. The writ-petitioner filed the Writ Petition No. 4171 of 2004 and obtained Rule calling upon the respondents to show cause as to why the impugned amendment of Section 4 and 6 of the Brick Burning (Control) Act, 1989 by the Act 17 of 2001 in the name of Brick Burning (Control) Amendment Act, 2001 published in the Bangladesh Gazette, Additional Issue dated 11-04-2001 (Annexure-C) and impugned order dated 06-07-2003 (Annexure-E) passed by the respondent No. 6 to cancel the licence of the petitioner should not be declared to have been passed without lawful authority and is of no legal effect.

3. The facts as stated in the writ petition are that the petitioner firstly obtained the licence from the Upazila Chairman, Katchua, Chandpur, in the year 1990 and set up a Brick Field on 2.00 acres of land in the Lankhpur Mouza, Katchua, Chandpur under the name and style M/s. Tajul Islam Brick Field and he having engaged in the business, invested huge amount of money in the said business. From the Deputy Commissioner, the petitioner obtained a licence for the above-mentioned Brick Field in 1995 for a period of 5 years. Thereafter, in the year 2000, on prayer of the petitioner his licence was renewed for further period of 5 years being valid till 03-09-2005. The further case of the petitioner is that in the meantime, the Government issued a Gazette Notification dated 11-04-2001 amending some sections of the aforesaid Brick Buring (Control) Act, 1989 by the Act 17 of 2001 in the name of Brick Buring (Control) Amendment Act, 2001. After amendment of Section 4 of the Brick Buring (Control) Act, 1989 a new Sub-Section 5 was introduced as under: (Text in Bangla)

4. Some new provisions about inspection has been introduced is Section 6 which are as follows: (Text in Bangla)

5. The petitioner further stated that some brickfield owners also file writ petitions challenging the aforesaid amendment of law and in spite of pendency of the aforesaid writ petition; the respondent cancelled the licence of the petitioner.

6. The petitioner now contends that the above-mentioned provisions have been introduced without leaving any saving clauses as required under the law. There is no provision in the amendment of the law of showing cause or of hearing in person against whome the decision is being taken. So, the affected person having no chance of representing his position to the authority is a violation of fundamental right by interfering with the lawful trade of the petitioner. Upon the aforesaid agrument, the petitioner obtained Rule and stay and the writ-respondents contested the Rule by filing afidavit-in-opposition denying the material allegations made in the writ petition; that in the meantime, the respondent filed an application for vacating the order of stay and the petitioner by filing affidavit in reply to the application filed by the respondent for vacating the order of stay contended that because of political rivalry his licence has been cancelled.

7. Upon hearing the parties, the learned Judges of the High Court Division discharged the Rule.

8. Dr. Zahir, the learned Counsel appearing for the leave-petitioner, having taken us through the impugned judgment of the High Court Division and materials on record, contended that by amending the above mentioned provisions, the concerned person has been vested with exclusive power without providing any provisions for showing cause or of being heard in person and on a plain reading it appears that in the (Text in Bangla- “Paridarshan”) clause, the powers vested upon the person concerned are not in accordance with law. He next contends that there is a scope for arbitrary exercise of the power and there having no provisions for defending the affected persons, the so called amendment is against the principle of natural justice and as such the impugned judgment and order being bad in law are liable to be set aside.

9. Learned Counsel further contended that the impugned amendment has been passed without leaving any saving clauses, as required under the law and the affected persons having been deprived of being herd (heard) in person is violation of natural justice and as such the impugned judgment cannot be sustained in law.

10. Mr. Dr. Zahir lastly contended that the learned Judges of the High Court Division failed to apply their judicial mind in the facts and circumstances of the case.

11. Mr. A. J. Mohammad All, the learned Attorney General appearing for the respondents, on the other hand, contended that the respondent No. 1 has cancelled the petitioner's licence lawfully and in accordance with law. There is no malafide intention; it is for the protection of health hazard to the people living around the brickfield of the municipality.

12. Having regard to the facts and circumstances of the case, the learned Attorney General argued that there was no violation of law in cancelling the licence of the petitioner since terms and conditions of the licensee are also subjected to any change provided from time to time by the Government. It is thus argued that the learned Judges of the High Court Division, in the facts and circumstances of the case, having applied their judicial mind rightly passed the impugned judgment and there is no legal infirmity in the impugned judgment of the High Court Division for interference.

13. We have heard the submissions of the respective parties represented by the lawyers and considered their submissions. The learned Judges of the High Court Division upon consideration of facts, circumstances and the relevant law came to the finding, which are as follows:

"The petitioners challenged the amendment of Sections 4 and 6 of the Brick Burning (Control) Act, 1989. The amendment of Section 4 has been introduced with regard to some restriction of granting licence and in Section 6 with regard to inspection. The main contention has been raised by the petitioner that has not been given any opportunity of being heard but the impugned order as it appears as evidenced in Annexure-E that already 2 months time for removing the Brick kilning has elapsed and has not complied with the said order. The licence has been canceled and that he has no licence at the amount, though he has applied for the licence and for the matter a writ petition is pending before this Court. Further it appears that the petitioner went to the civil Court challenging the impugned order and thee was an ad-interim injunction against which appeal was filed by the Government and subsequently the case was withdrawn for filing a writ petition before this Court. Therefore, it appears that he has every knowledge that his lecence is going to be cancelled as the brickfield situates within the radius of 3 kilometer of municipality. Therefore, he got no notice and it has no basis. He tried by invoking civil Courts jurisdiction and thereafter under the writ jurisdiction. The licence was cancelled and the licence has not yet been given. The question as to the amendment that it is not applicable in this particular case as he is running business for long is not amenable under the said law as the terms and conditions of licence is always subject to any change and the amendment applied to each and every one when it comes into effect. The law itself has been introduced for the purpose of keeping the environment free from all population and in that view the matter such amendments have been introduced. It is for the betterment of the area and the locality to keep the people in good health. Furthermore, the petitioner has failed to place any material before as to show that the amendment is not in accordance with law or ultra-vires to the Constitution as well as the fundamental rights of the citizens as guaranteed in the Constitution."

In the aforesaid premises, we are fully in agreement with the findings and decisions arrived at by the High Court Division. This petition merits no consideration. Accordingly, it is dismissed.

Ed.

The Case is also Reported in: IV ADC (2007) 944.