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 stipulated 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-prosecution 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 cleared instruction from his client that the same would be omitted therefrom 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:-
Ò25 | eivÏ – evwZj
(1) ———————–
(2) †Kvb eivÏ cÖvcK eivÏ c‡Îi kZ© cÖwZcvj‡b e¨_© nB‡j ev ev¯Íevqb bv Kwi‡j Ges wba©vwiZ c×wZ‡Z Dnv c~iY Kwi‡Z bv cvwi‡j D³ mgq AwZµvšÍ nIqvi m‡½ m‡½ eivÏcÎ ¯^qswµqfv‡e evwZj nBqv hvB‡e Ges GB e¨vcv‡i †Kvb AvbyôvwbK Av‡`‡ki cÖ‡qvRb nB‡e bv |Ó
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 exfacie 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 ” XvKv DËi wmwU K‡c©v‡ikb gv‡K©U Dc AvBbÓ 2013 and ” XvKv `wÿY wmwU K‡c©v‡ikb gv‡K©U Dc AvBbÓ 2013Ó 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.
