(From previous issue)
4. On 30-3-2008 a circular was issued by the Bangladesh Bank for reschedule of outstanding dues for rehabilitation of sick industries. Auction notice dated 5-4-2008 for auction sale to be held on 23-4-2008 under challenge was published in the Daily Azadi (Annexure-D). Under the circumstances the petitioner mainly challenging the order passed by the respondent No.2 the learned District Judge. Chittagong who by his office order No.187/Pro B: dated 18-11-2007 gave jurisdiction to try the cases relating to Artha Rin matter to the respondent No.3 Mr Sharif Uddin Ahmed who was promoted in the rank of Additional District Judge, First Court, Chittagong,. moved this petition.
5. Mr Md Harunur Rashid, the learned advocate appearing for the petitioner after placing the petition and Annexures appended to it mainly argued that the order dated 18-11-2007 so far as it relates to constitution of the Artha Rin Adalat at Chittagong by the Additional District Judge Mr Sharif Uddin Ahmed is without lawful authority, illegal and is of no legal effect owing to the fact that section 4 of the Artha Rin Ain, 2003 provides for constituting Artha Rin Adalat by a joint district Judge, that even after Consultation with Hon’ble Supreme Court followed by Government Gazette Notification and if there be any vacancy, for the time being, the District Judge of respective District may put the jurisdiction of Artha Rin Adalat to any other joint District Judge as additional responsibility to his original function. But in the instant case instead of Joint District Judge, the Artha Rin Adalat has been constituted by the Additional District Judge hence the mandatory provision of section 4 of the Artha Rin Adalat has been violated.
6. In elaborating his submission the learned counsel further submits that the order dated 18-11-2007 so far as it relates to constitution of the Artha Rin Adalat at Chittagong is without lawful authority, illegal and is of no legal effect owing to the fact that section 5(11), section 26 and section 41 of Artha Rin Adalat Ain-2003 categorically and clearly said that the Artha Rin Adalat is a Civil Court and if no contradiction has arisen between two law, then the provisions of Code of Civil Procedure would be applicable in case of Artha Rin Adalat; that section 4 of Artha Rin Adalat Ain. 2003 vested the original jurisdiction of trial court and the Joint District Judge and section 41 of the said vested the jurisdiction of appellate Court, subject to pecuniary limitation up to Taka 50,00,000, upon the District Judge including the Additional District Judge, hence there is a legal difference regarding jurisdiction between Joint District Judge and District Judge including Additional District Judge.
7. He also contends that the constitution given to the Additional District Judge being without lawful basis subsequently notice of auction published in the Daily Newspaper Azadi cannot also be sustained under law since it has been passed by the respondent No.3 Additional District Judge under his direction which he cannot do under the law.
8. Mr SM Moniruzzaman, the learned Deputy Attorney-General appearing for the respondent No.1 by filing affidavit in opposition the Rule. He submits that respondent No. 2 the Additional District Judge was given additional charge of Artha Rin Adalat by Administrative order under challenge dated 18-11-2007 but during the pendency of this Writ Petition respondent No.3 had been transferred from Chittagong and a Joint District Judge resumed the function as a judge of Artha Rin Adalat, Chittagong together with fact that the date of auction had already been expired, the Rule has become infructuous which should be discharged.
9. Heard the learned counsel of both, sides and considered their respective submissions. We have categorically gone through the impugned order dated 18-11-2007 and the relevant laws’ on the point. To appreciate the point raised by the petitioner it would be profitable to quote section 4 of the Artha Rin Adalat Ain. 2003.
“????? ?????????- (?) ?????? ?????????? ?????? ?????? ????? ? ?? ????? ????????? ???????? ?????? ????????????????? ?????, ??-???? (?) ? (?) ? ????? ????????, ?????? ?????? ????????? ??????, ???????? ????? ?? ?? ?????? ?????? ????? ????????? ????? ???????
(?) ?????, ????????? ??? ?????, ??? ?? ?????? ????? ???? ???? ?????? ????? ????????? ????? ???????
(?) ??-???? (?) ?? (?) ?? ????? ?????? ????? ?????????? ?? ????? ?? ???? ??????, ?????? ???????????? ?? ???? ????????? ????? ????????? ¯’???? ???????????? ?????-???? ?? ?????? ????? ????? ???? ??? ?? ????? ????????? ? ??? ?????? ??????, ????, ???? ??????? ?????? ?????????? ??????? ???????? ????, ??? ???? ?????-???? ?? ????? ?? ????? ?????? ?????????? ?? ????? ????? ??? ?? ????? ???????? ???? ????? ???? ?????-???? ???? ????? ?? ????? ???? ?????? ????? ?????? ???? ?????”
“(?) ????, ???¯’?? ?? ???? ??? ????? ?? ????? ???? ??????????, ????? ?? ???? ???? ?????? ?????? ??????? ?????? ??????? ????? ?????????? ?????? ????, ???? ?? ????? ¯’???? ?????????? ? ????????? ?????????? ??????? ??? ?????-???? ???? ?????????? ??? ????????? ???????? ?? ?????????? ????? ???? ?????? ??????? ???????? ??????? ????? ????????”
10. On a plain reading of the law it becmes clear that Artha Rin Adalat (for the purpose of trial) can only be constituted by Joint District Judge alone. This proposition finds support from sub-section 7 of section 4. When we read sub-section 7 we find that if due to illness or for any other reason or the court is in vacation the Artha Rin Adalat cannot function with its regular work the District Judge will appoint temporarily a Joint District Judge to continue function of Artha Rin Adalat. So it becomes clear that for the purpose of functioning of Artha Rin Adalat to be more particular to hold the trial jurisdiction lies with the Joint District Judge. Section 41 of Ain clearly says that the District Judge and the Additional District Judge are the appellate authority to dispose of the appeal against the judgment and order passed by the Joint District Judge in the capacity of Artha Rin Adalat Judge. This position being clear and unambiguous we are of the view that the constitution given by the District Judge the respondent No. 2 empowering the respondent No.3 the Additional District Judge to exercise jurisdiction as a Artha Rin Adalat is absolutely without jurisdiction and coram non judice. Further publication of the notice which is under challenge also cannot be sustained.
11. Be that as it may we are not required to dwell upon the other points with emphasis since the question of Coram non-judice as already discussed has been well proved. That being the position this Rule merits substance which should. be made absolute.
12. In the result, the Rule is· made absolute.
The impugned order is set-aside. The trial court is directed to proceed with the suit immediately in accordance with law.
Communicate at once.
(Concluded)
5. Mr Md Harunur Rashid, the learned advocate appearing for the petitioner after placing the petition and Annexures appended to it mainly argued that the order dated 18-11-2007 so far as it relates to constitution of the Artha Rin Adalat at Chittagong by the Additional District Judge Mr Sharif Uddin Ahmed is without lawful authority, illegal and is of no legal effect owing to the fact that section 4 of the Artha Rin Ain, 2003 provides for constituting Artha Rin Adalat by a joint district Judge, that even after Consultation with Hon’ble Supreme Court followed by Government Gazette Notification and if there be any vacancy, for the time being, the District Judge of respective District may put the jurisdiction of Artha Rin Adalat to any other joint District Judge as additional responsibility to his original function. But in the instant case instead of Joint District Judge, the Artha Rin Adalat has been constituted by the Additional District Judge hence the mandatory provision of section 4 of the Artha Rin Adalat has been violated.
6. In elaborating his submission the learned counsel further submits that the order dated 18-11-2007 so far as it relates to constitution of the Artha Rin Adalat at Chittagong is without lawful authority, illegal and is of no legal effect owing to the fact that section 5(11), section 26 and section 41 of Artha Rin Adalat Ain-2003 categorically and clearly said that the Artha Rin Adalat is a Civil Court and if no contradiction has arisen between two law, then the provisions of Code of Civil Procedure would be applicable in case of Artha Rin Adalat; that section 4 of Artha Rin Adalat Ain. 2003 vested the original jurisdiction of trial court and the Joint District Judge and section 41 of the said vested the jurisdiction of appellate Court, subject to pecuniary limitation up to Taka 50,00,000, upon the District Judge including the Additional District Judge, hence there is a legal difference regarding jurisdiction between Joint District Judge and District Judge including Additional District Judge.
7. He also contends that the constitution given to the Additional District Judge being without lawful basis subsequently notice of auction published in the Daily Newspaper Azadi cannot also be sustained under law since it has been passed by the respondent No.3 Additional District Judge under his direction which he cannot do under the law.
8. Mr SM Moniruzzaman, the learned Deputy Attorney-General appearing for the respondent No.1 by filing affidavit in opposition the Rule. He submits that respondent No. 2 the Additional District Judge was given additional charge of Artha Rin Adalat by Administrative order under challenge dated 18-11-2007 but during the pendency of this Writ Petition respondent No.3 had been transferred from Chittagong and a Joint District Judge resumed the function as a judge of Artha Rin Adalat, Chittagong together with fact that the date of auction had already been expired, the Rule has become infructuous which should be discharged.
9. Heard the learned counsel of both, sides and considered their respective submissions. We have categorically gone through the impugned order dated 18-11-2007 and the relevant laws’ on the point. To appreciate the point raised by the petitioner it would be profitable to quote section 4 of the Artha Rin Adalat Ain. 2003.
“????? ?????????- (?) ?????? ?????????? ?????? ?????? ????? ? ?? ????? ????????? ???????? ?????? ????????????????? ?????, ??-???? (?) ? (?) ? ????? ????????, ?????? ?????? ????????? ??????, ???????? ????? ?? ?? ?????? ?????? ????? ????????? ????? ???????
(?) ?????, ????????? ??? ?????, ??? ?? ?????? ????? ???? ???? ?????? ????? ????????? ????? ???????
(?) ??-???? (?) ?? (?) ?? ????? ?????? ????? ?????????? ?? ????? ?? ???? ??????, ?????? ???????????? ?? ???? ????????? ????? ????????? ¯’???? ???????????? ?????-???? ?? ?????? ????? ????? ???? ??? ?? ????? ????????? ? ??? ?????? ??????, ????, ???? ??????? ?????? ?????????? ??????? ???????? ????, ??? ???? ?????-???? ?? ????? ?? ????? ?????? ?????????? ?? ????? ????? ??? ?? ????? ???????? ???? ????? ???? ?????-???? ???? ????? ?? ????? ???? ?????? ????? ?????? ???? ?????”
“(?) ????, ???¯’?? ?? ???? ??? ????? ?? ????? ???? ??????????, ????? ?? ???? ???? ?????? ?????? ??????? ?????? ??????? ????? ?????????? ?????? ????, ???? ?? ????? ¯’???? ?????????? ? ????????? ?????????? ??????? ??? ?????-???? ???? ?????????? ??? ????????? ???????? ?? ?????????? ????? ???? ?????? ??????? ???????? ??????? ????? ????????”
10. On a plain reading of the law it becmes clear that Artha Rin Adalat (for the purpose of trial) can only be constituted by Joint District Judge alone. This proposition finds support from sub-section 7 of section 4. When we read sub-section 7 we find that if due to illness or for any other reason or the court is in vacation the Artha Rin Adalat cannot function with its regular work the District Judge will appoint temporarily a Joint District Judge to continue function of Artha Rin Adalat. So it becomes clear that for the purpose of functioning of Artha Rin Adalat to be more particular to hold the trial jurisdiction lies with the Joint District Judge. Section 41 of Ain clearly says that the District Judge and the Additional District Judge are the appellate authority to dispose of the appeal against the judgment and order passed by the Joint District Judge in the capacity of Artha Rin Adalat Judge. This position being clear and unambiguous we are of the view that the constitution given by the District Judge the respondent No. 2 empowering the respondent No.3 the Additional District Judge to exercise jurisdiction as a Artha Rin Adalat is absolutely without jurisdiction and coram non judice. Further publication of the notice which is under challenge also cannot be sustained.
11. Be that as it may we are not required to dwell upon the other points with emphasis since the question of Coram non-judice as already discussed has been well proved. That being the position this Rule merits substance which should. be made absolute.
12. In the result, the Rule is· made absolute.
The impugned order is set-aside. The trial court is directed to proceed with the suit immediately in accordance with law.
Communicate at once.
(Concluded)
