The New Nation - Internet Edition

High Court Division

(Special Original Jurisdiction)

SM Hossain J

Quamrul Islam Siddiqui J

Judgment

February 28th, 2007

Syed Salahuddin

Ahmedt Petitioner

Government of Bangladesh and others tRespondent*

Transfer of Property Act (IV of 1882) Section 107

Constitution of Bangladesh, 1972

Article 102

The lands owned by the Government should be leased out by open auction so that there may not be any doubt in the mind of general public about transparency of such dealings. Therefore, the 'lease of the land given initially to the petitioner and subsequently to respondent No.7 was not in transparency.

Haji TM Hassan Rawther vs Kerala Financial Corporation, AIR 1988 (SC) l57; Ramana vs International Airport Authority.. of India AIR 1979 (SC) 1628 reft(13-16)

Md Ozair Farooq with MNA Afgani and Sk AMd Morshed, Advocates-For the Petitioner.

SM Monir, Advocate;-For Respondent No.7.

Zaman Akhter Bulbul, Deputy Atorney-General-For Respondent No.6.

Judgment

Syed'Mahmud Hossain J: In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order issued under Memo No. 3637 dated 18-11-1993 (Annexure-C) and the action of the respondents in evicting the petitioner from his leasehold land, vide Annexure-A should not he declared to have been made without any lawful authority.

2. The facts leading to the issuance of the Rule, in brief, are: The petitioner obtained lease of the disputed land measuring 0.27 acre of JL No. 275 appertaining to CS plot No. 475 pursuant to a deed of lease dated 13-6-1 987. The land was taken on lease for the purpose' of establishing a 'petrol pump' and a 'servicing centre'. Initially, the lease was granted for a period of 5 years to be renewable every year, for an annual premium of Taka 32.727.27. Afterwards, the lease was extended for a period of 10 years; the 2nd deed was registered on 24-5-1993 in favour of the petitioner with an annual premium of Taka 54,000 The 2nd deed stipulated that the petitioner would use the land for the purpose of washing vehicles, supply of oil (petrol, diesel, mobil, etc.). The leasehold property was a very low lying land and the petitioner had to spend huge amount of money to develop it for the purpose of establishment of a 'petrol pump'. After that, the petitioner established a 'servicing unit' and a pump island having separate provision of petrol and diesel unit, a servicing workshop and a cash counter. Without any fault of the petitioner and without serving any notice for showing cause, his lease deed was cancelled by respondent No. 6 on the plea that the petitioner failed to set up the petrol pump as stipulated in the lease agreement, and sent a leter informing him about the order of cancellation, vide leter dated 18-11-1993 (Annexure-C). Soon after, the petitioner tiled an application seeking stay of the impugned order on 18-11-1993. Respondent No.2 called for a report from respondent No.6 to ascertain whether 'servicing centre' was feasible on the leasehold property instead of a 'petrol pump'. The order of cancellation was, however, stayed by the Ministry of Communication on 2-12-1993 as evident in Annexure-'D' to the writ petition. Later, the petitioner applied for establishing a CNG filling station. The Additional Chief Engineer, Roads and Highways recommended renewal of the lease subject to establishment of a CNG filling station and CNG converting workshops after removal of temporary structures as evident in Annexure-I. The petitioner got Tax Identification Number (TIN) in the name of his company Salahuddin Filling and CNG Servicing Station and obtained permission from Rupantarita Prakritik Gas Company Ltd for the above purpose. The petitioner also applied to the Utara Commercial Bank's Mohakhali Branch for opening Leter of Credit for importing machineries.

3. Challenging the order of cancellation of deed dated 18-11-1993 and the action of the respondents illegally evicting him on 15-5-2003 from the disputed land, the petitioner obtained this Rule from this Court On the date of issuance of the Rule, the petitioner obtained an interim order restraining the respondents from leasing out the property as mentioned in the schedule A to the writ petition. Subsequently, the order of restraint was converted into an order of status quo on 27-8-2003.

4. Respondent No. 7 filed an affidavit-in-opposition controverting all the material allegations made in the writ petition. The case of respondent No.7, in short, is that the petitioner was not allowed to dig the land without prior permission of the respondents. The petitioner did not construct any infrastructure for the purpose of establishing the petrol pump; rather, he constructed some sheds made of corrugated iron sheets and rented those as shops in violation of the terms and conditions of the lease agreement The petitioner lost the right for enjoying the property since 18-11-1993. After cancellation of the lease agreement of the petitioner on 18-11-1993, the application of respondent No.7 for lease was considered and the land in question was leased out to him by an agreement executed on 14-5-2003 and possession of the land had already been handed over to him on 26-5-2003. After execution of the lease deed in favour of respondent No. 7 and deiivery of possession of the disputed land to him, nothing was left to be interfered with in the writ jurisdiction. By filing a supplementary affidavit, respondent No.7 states that the structures constructed by the petitioner are still being leased out by him to different persons. although his lease agreement no longer exists.

5. Respondent No.6 filed an affidavit-in-opposition and supplementary affidavit-in-opposition controverting all the material allegations made in the writ petition. The case. of this respondent is the land leased out to the petitioner had been lying vacant The petitioner never spent Taka 2 crore to develop the land, including infrastructural development for the purpose of establishing 'petrol pump' on that land. The petitioner is a defaulter in payment of premiums of his lease since 1994. So, it is clear that the petitioner was an illegal occupier of the land belonging to the Government The petitioner violated the terms and conditions of the contract and accordingly, the authority cancelled his lease agreement

6. Mr Mohammad Ozair Farooq, Iearned Advocate appearing on behalf of the. petitioner, submits that the cancellation of the petitioner's lease is illegal and without jurisdiction as no prior notice for showing cause was issued upon him. He further submits that the petitioner did not violate the terms and conditions of his lease agreement and, that his lease was cancelled for collateral purpose. He then submits that meanwhile, respondent No:6 entered into a contract to lease out the disputed hind to respondent No.7 for the purpose of establishing a CNG station in a way which is not transparent

7. Mr SM Manir, learned Advocate, appearing on behalf of respondent No.7, on .the other hand, submits that the petitioner does not have any locus standi to challenge the order of cancellation of his lease after 9 years. He further submits that by memo. No.BPRH/2L-69/85-396 dated f2-5-2003, a decision was taken to lease out the disputed land to respondent No.7 to be renewable after every 5 years. He further submits that the lease of respondent No.7 is not under challenge in that writ petition.

8. Mr Zaman Akhter Bulbul, learned Deputy Atorney-General appe;lring on behalf of respondent No.6, on the other hand, submits that the lease of the petitioner was cancelled as he violated the terms and conditions of the lease agreement He further submits that pursuant to the guidelines for providing utility service to the people, respondent No.6 decided to lease out the disputed land to respondent No.7 and, as such, the petitioner does not have any locus standi to challenge such action of the Government

9. We have perused the record and considered the submissions of the learned Advocates. Annexure- 'A' to the writ petition revealed that 0.27 acre of land of JL No. 275 appertaining to CS Plot NoA75 (part) 'under' Gulshan Police Station, Dhaka was leased out to the petitioner for 5 years for establishment of a 'petrol pump' for a premium of Taka 32,727;21 to be paid each year. Before expiry of that period of lease, the petitioner and respondent No.6 entered into a fresh lease agreement for another 10 years to be renewable after every 5 years as evident in Annexure. 'B' to the writ petition at an annual premium of Taka 54,000. Before expiry of the tenure of lease, the lease of the petitioner was cancelled on 18-11-1993 as evident in Annexure-C' to the writ petition. On an application made by the petitioner, the 'Ministry of Communication, Roads and Highways Division, stayed operation of the 'order of cancellation of the petitioner's lease on 2-12-1993. From Annexure-I to the affidavit-in-opposition filed by respondent No.7, it appears that by memo. No. BPRH/2L-69/85-369 dated 12-5-2003, the Ministry of Communication decided to lease out the disputed land to respondent No.7 for 15 years to be renewable after every 5 years at a premium of Taka 1,79,676 and a monthly rental of Taka 12::273 Accordingly, a lease agreement to that effect was signed on 14-5-2003.

10: It is contended that the lease of respondent No.7 is not under challenge in the case in hand and, as such, no comment should be made on his lease. The lease of respondent No.7 was granted during continuance of the order of stay passed by respondent No.1 staying operation of the cancellation of the lease of the petitioner as evident in Annexure- 'D' to the writ petition. There is nothing on record to show that prior to granting lease of. the disputed land to respondent No. 7, Annexure-D was withdrawn or cancelled. Therefore, the above contention does not stand to reason and the lease of the disputed land in favour of respondent No.7 is illegal and without jurisdiction.

11.The learned Deputy Atorney-General submits that the lease of the disputed land was given to respondent No.7 pursuant to the guidelines published in 'the Bangladesh Gazete dated 22-82004 under the caption "wmGbwR wdwjs †ókb I i“cvš-i KviLvbv ¯’vcb I †c‡Uªvj cv¤ú I wW‡Rj cv¤ú ¯’vc‡bi Rb¨ moK I Rbc_ Ges evsjv‡`k †ijI‡qi Rwg BRviv msµvš- bxwZgvjvÓ

12. Having scrutinised those guidelines, we find that' individuals were allowed to file applic ations to the concerned authority for establishing CNG stations on the lands owned by the' Roads and Highways and also by the Railways. Those guidelines reveal that the monthly lease money of one bigha of land in Dhaka Metropolitan City was shown at Taka 15.000 with a security deposit of Taka 10,00.000 to be returned as soon as the CNG station is commissioned and in Chitagong Metropolitan City at Taka 10,000 and with a security deposit of Taka 5.00,000 and in Narayanganj Paurashava at Taka 5,000 with a security deposit of Taka 300,000 and in other places at Taka 3,000. What is the rationale for fixing lease money of one bigha of land in Dhaka Metropolitan City at Taka 15,000 has not been mentioned. Even what would be the criteria for selection of a particular individual if there are more than one aspirant for a particular piece of land have not been mentioned. No provision has been made for competition in such a situation. Government is not like a private individual who can pick and choose the person with whom it will deal. It cannot, without adequate reasons, exclude any person from dealing with it Those guidelines prepared for individuals cannot ensure transparency. The guidelines give an impression of bias, favouritism or nepotism. Mass participation is necessary in respect of lease of land to be used for commercial purpose and such participation can be ensured through open, tender/auction. The Government should scrap those guidelines so that no controversy regarding such dealings arises in future. The above guidelines, no doubt, relate to policy mater of the Government But the policy mater of a democratically elected Government must be transparent and must not create doubt about the fairness of such policy. The Government need not enter into any dealing with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.

13. Admitedly, the disputed land located at the heart of the Dhaka Metropolitan City was leased out at nominal price without inviting any tender from the general public. Apart from lease money, respondent No.7 stated to have deposited Taka 10,00,000 as security to be refundable as soon as the CNG station was commissioned. In this connection, it is to be mentioned here that the Government property cannot be leased out without observing transparency. It is important to note that transparency inhibits corruption and promotes good governance. It is the duty of the Government to safeguard the revenue of the country. In this connection, reliance may be made on the case of Haji TM Hassan Rawther vs Kerala Financial Corporation AIR 1988 (SC) 157 in which in paragraph 14, it is stated as follows:

"The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily, these factors would be absent if the mater is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State-owned properties are required to be disposed of publicly. But that is not the only rule. As O. Chinnappa Reddy, J observed "that though that is the ordinary rule, it is not an invariable rule. There may be situations necessitating departure from the rule, but then, such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience."

14. Reliance may also be made on the case of Ramana vs International Airport Authority of India and others AIR 1979 (SC) 1628 wherein it is held "It must therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant The power or discretion of the Government in the mater of grant of largess including award of jobs, contracts, quotas, licences, etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."

15. The above judgment also quoted from another judgment reported in AIR 1972 SC 1816 as under:

"The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. Hence, quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to 'decide whether the price offered in an auction sale is adequate".

16. In view of the aforesaid pronouncements, we are of the view that the Government by making certain guidelines cannot lease out the property belonging to it without observing fairness. The lands owned by the Government should be leased out by open auction so that there may not be any doubt in the mind of general public about transparency of such dealings. Therefore, we are of the view that the lease of the disputed land given initially to the petitioner and subsequently to respondent No.7 was not in transparency.

17. Another important aspect of this case is, that the lease agreement is for five years even then it is not registered as required under section 107 of the Transfer of Property Act Respondent No.7 should not establish any CNG station in the disputed land and, as such, respondent Nos. I to 6 are required to cancel the lease agreement dated 14-5-2003 with respondent No.7.

18. In the result, the Rule is disposed of and respondent Nos. I to 6 are directed to cancel the lease agreement entered between respondent No.5 and added respondent No.7, and to lease out the disputed property by inviting open auction tender so that general public can participate in it

Let a copy each of the judgment be communicated to the Ministry of Law, Justice and

-Parliamentary Affairs and the Ministry of Communication.

-M. Harunur Rashid

Separation. of judiciary until recently has always been a popular political slogan since 1957 when the JUKTO. FRONT as political party included this in their election manifesto and this trend continued as the major political parties of the country namely B.N.P, Awami League, Jatiyo Party and Jamat-EIslami have included this issue in their manifesto. In discharge of my official duty, I had the opportunity to go through those manifesto and found how the political will of those parties as regards separation of judiciary was reflected although those parties during the tenure of their state power did nothing to fulfill people's mandate as regards separation of judiciary. In the process of implementation of directives given by the apex court in highly talked about Masdar Hussain case the issue got momentum although that case was filed by the judicial officers where basically amongst other things, the enhancement of pay was prayed for. As part of my official duty, I have been althrough involved in the process of implementation and ill the initial stage of drafting of four set of Service Rules already framed by the government

The mater took a dramatic turn when some of the officers belonging to administrative cadre flouted Supreme Court's Judgment in an inter-ministerial meeting against whom the Supreme Court issued a suo moto contempt rule.

During the long process of disposal of contempt rule, the implementation process of court's directives was completed and as a result four set of Service Rules for administering Judicial Service and the Code of Criminal

Procedure was amended. Now these Rules and Cr.P.C as amended need to put into operation and Judicial Magistrates are to be posted from among the officers belonging the Judicial Service. It is awlays to be borne in mind that it is a composite deal and the Rules and Cr.P.C as amanded need to come into force together.

Let me now very brief1y explain the scheme of the Constitution on separation of judiciary at least for academic importance. We all know that Article 22 of our Constitution runs as follows:- "The state shall ensure the separation of the judiciary from the executive organs of the State". This provision being part of fundamental principles of State Policy is not justiceable as per the provision of Article 8(2) of the Constitution. If this is the case, then question arises how come the Suprcme Court passed directives for separation of judiciary. In answering this question, we can look at articles 115, 116 and 116A of the Constitution and article 109 too. Article 115 says the appointment to subordinate court will be made by the President in accordance with rules. Article 116 says the control and discipline of subordinate courts shall vest in the president and shall be exercised by him in consultation with the Supreme Court while article 116A of the Constitution says judicial officers to be independent -in the exercise' of their functions. For performing those duties there was a requirement of Rules.

Framing of four set of Service Rules have fulfilled that requirement and therefore, framing of four set of Service Rules can well be said implementation of requirement of Article 115,116, and 116A of the Constitution. In the twelve points directives the need of framing those Rules was stressed. The Supreme Court in the twelve points directives did not specifically say anything about the Constitutional mandal reflected in Article 22 of the Constitution. So fulfillment of requirements of Article 115, 116 and 116A of the Constitution certainly fall well within the mater enforceable by the court The magistrates not being the members of Judicial Service-exercising judicial functions and their control and superintendence lies with the High Court Division of the Supreme Court under the provision of

Article 109 of the Constitution. These are the kind of operation all issues, which were addressed by the Supreme Court in Masdar Hussain case. That does not any way mean that the Constitution has contemplated separate entity of magistrate exercising judicial functions.

To my understanding people's perception of separation of judiciary is nothing but debarring persons from exercising judicial functions who are under the control-and management of the executive organ of the State. In other words judicial functions should be performed by the judicial officers within the meaning of Article 152 of the

Constitution and if we can not ensure this, it will also some how defeat the spirit of independent and impartial Court or Tribunal as enshrined in Article 35 (3) of the Constitution.' With the commencement of new sets of Service

Rules and amendment of Cr.P.C judicial magistracy will be exercised by the judicial officers and they will work under the local control of the Sessions Judge.

As per the present scheme of the Constitution, the subordinate judiciary has two wheels, that is to say the Supreme Court and the Ministry of Law as 'appropriate authority' and these two wheels need to be moved harmoniously. Some legally educated people have already raised their voice that in the recently framed Rules the Ministry in the name of 'Appropriate Authority' was given some sort of power to control the subordinate judiciary and by enabling the judicial officers to work in. the ministry and other organisation of the government, it has actually allowed the subordinate judiciary to be tied together with the executive organ of the government Some people have opened a third front and have been trying to make a point that a separate Secretariat need to be established in the Supreme Court for administering administration of justice.

The constitution, I am afraid, do not support those proposition. Despite the fact, that the Supreme Court in the maters of control and discipline of judicial officers has only consultative role and the scope and application of which is not indefinable.

Under the present scheme, the President of the Republic is the appointing authority of the judicial officers and he exercises this power in consultation with the Supreme Court under the provision of article 116 and with the advice of the Prime Minister under the provision of article 48 (3) of the Constitution. President performs his functions as per the Rules of Business framed under the provision of article 55(-6) of the Constitution and thereby allocates his business to different ministry and transact the same with the assistance .of assigned ministry. As per the Rules of Business the President can not allocate any business to any organization other than a ministry of the government, for example the Supreme Court Secretariat notionally. Moreover there is no concept of Supreme Cuurt Secretariat in our Consutuliun. Therefore, for practical purposes at least a body is required to formulate advice of Prime Minister for the President in compliance of article 48(3) of the Constitution in the maters relating to subordinate courts. That functions for number of reason should be performed by the Ministry of Law and that should not be for obvious reason vest on Ministry of Statistics or others. In the four set of service Rules, Ministry of Law was defined as 'Appropriate Authority', and that could not be avoided unless the Constitution is amended. In our Constitution there is a diarchy in respect of maters relating to subordinate judiciary and that is the reason why an observation was given in the judgment of Masdar Hussain case that Parliament may amend the Constitution to make separation more meaningful.

Now the question of allowing the judicial officers to work in the government offices on deputation need to be resolved. The model of separation of judiciary we have almost followed is 'West Bengal model' which was also an out come of a case filed by All India, Judges Association in the like manner of Masdar Hussain Case. In the relevant rules the West Bengal Government has allowed deputation of judicial officers. The corresponding provision of Indian Rule is quoted hereunder

"Rule 19 Deputation -Any members of the Service may be deputed by the High Court to perform the duties of any post in the Central Government or the State Government or the Union Territory of Andaman and Nicober Islands or to serve in any organisation, which is wholly or partly owned and controlled by the central or the state government for a period of years or for such period as the High Court and borrowing department agree." In the Rules called the West Bengal Judicial (condition of service) Rules, 2004, deputation of senior judicial officers like District Judge was also allowed in Rule 40 in addition to the rule quoted above.

This provision is much more wider than that of ours. Some people are interpreting the judgment of Masdar Hussain case in a way that a kind of ban was put there in the judgment for judicial officers to work on deputation. But the people who have read the judgment, I hope, would agree that there is nothing except directive No-1 which says judicial.. service can not be mixed up and tied together with other executive service. Now we need to know what does it mean?

Does it restrict the provision of deputation or it has nothing to do with deputation of judicial officer.

By directive No. 1 given in the judgment of Masdar Hussain case the Supreme Court has put a restriction on the government for not amalgamating other cadre services with the judicial service in exercise of its power given in the Services (Re-Organisation) Act, 1975, the way the government in the recent past amalgamated the then Secretariat Service with the Administrative Service. There is no directive or nothing of this sort in the judgment of Masdar Hussain case against deputation of judicial officers in the government offices. The Supreme Court has approved the provision of deputation in the Rules and made it part of its order and it was of course, made in consonance with its directives given in the judgment There are two Constitutional service distinctly mentioned in the Constitution. One of which is the Defence Service as mentioned in Chapter IV of Part IV of the Constitution and, other is the Judicial

Service as mentioned in Chapter 11 of Part VI of the Constitution: The ban or restriction in one Service as regards appointment on deputation would certainly make an impact on the other. It is to be remembered that by working on deputation the members of defence service have become symbol of peace keeping process under the United Nations Mission.

Under the present constitutional scheme the role of the Ministry of Law can not be avoided in the maters relating to administration of justice and for obvious reason that ministry should be manned and staffed by the judicial officers likewise the Bar Council should be run by the lawyers and BMA should be run by the Doctors. Recently in a case decided by the High Court Division of the Supreme Court, the provision of deputation of judicial officer in the ministry of law and other government organizations have been reinforced and that decision has got binding effect as per the provision of article 111 of the Constitution.

In the recently framed Service Rules some sort of control of the government is there over the maters relating to appointment and transfer of the judicial officers and that has infact created anxiety in the minds of legal community.

I heard them saying, what is the point of having this kind of separation where government has a control over the subordinate judiciary. I do appreciate their anxiety. But so long the President is the appointing authority and so long the President has to work with the advice of the Prime Minister, this remote control can not be avoided until and unless the Constitution is amended and the Supreme Court is made the appointing authority instead, of the persons employed in the Judicial Service. Moreover our Constitution perhaps, did not contemplate a separate secretariat to provide assistance to the judiciary as a whole, the way it mandated in article 79 of the Constitution for a separate secretariat for the Parliament

It is to be understood that we work under the legal bounds of a writen Constitution and there is a in-built mechanism of harmonious working of each organ of the State. The Supreme Court as guardian of the Constitution can prevent the state functionary from exceeding their limits or over stepping by exercising its power popularly known as 'judicial review'. Supreme Court's power and function in the maters relating to subordinate court is embodied in article 116 of the Constitution and the provision of article 116 can not apply in the maters of appointment of person belongs to other than Judicial Service and the advisory jurisdiction of the Supreme Court as per the provision of article 106 can not be invoked under article 116 of the Constitution.

With the commencement of new Service Rules and amendment of Cr.P.C, magisterial powers would be classified into two groups namely judicial magistracy and preventive magistracy. Judicial magistracy relating to justice will be exercised by the judicial officers who will be working as Judge or Magistrate full time while the preventive magistracy relating to law and order situation will be exercised by the administrative officers who are not necessarily legally educated. That will I believe, bring about a positive impact in the criminal justice system and at the same time it will regain people's confidence in the justice delivery system as a whole.

So I urge the legal community not to confuse and mix up the separation of judiciary as in the Constitution with the separation of judiciary we had been dreaming for and let us make our all efforts to implement the directives of the apex court of the country in order that a long cherished goal of the people of this part of the globe can be achieved. Now the things need to be looked at are firstly; to put those four set of service rules and amendment of Cr.P.C into operation and see what qualitative change it can bring about; secondly to recruit sufficient number of officers to post them as judicial magistrate in the changed circumstances. Let us make best use of our own experience except which nothing can be more authentic.

[The author is a Joint District Judge now working in the Election Commission Secretariat on deputation. He has both national and international publication on law and parliament in his credit]