(Special Original Jurisdiction)
Farah Mahbub J
AKM Zahirul
Hoque J
Judgment April 7th, 2014
Mahmodul Hasan (Md) …………………. Petitioner
vs
Government of Bangladesh and others ……..
…………….. Respondents*
Muslim Marriages and Divorce (Registration) Rules, 2009
Rule 11
Question of revocation of license will come into play only on the allegation of misconduct as defined in Rule 11 of the Rules, 2009. .. (18)
Muslim Marriages and Divorce (Registration) Rules, 2009
Rule 8
The word ÔZ_¨Õ correspond to the information as provided under Rule 8 of the Rules, 2009. Since government has not alleged violation of Rule 8 on the allegation of submitting forged DO letter, which does not regulate the appointment of a Nikah Registrar cannot be cancelled within the framework of Rules, 2009, the license of the petitioner as a Nikah Registrar cannot be knocked down on that count only. ……..18)
Md. Ziaul Haque, Advocate-For the Petitioner.
Syed Mamun Mahbub with Md Mesbab Islam Asif, Advocates-For the Respondent No.5.
Titus Hillol Rema, AAG with Farida Yeasmin, AAG-For the Respondent-Government.
Judgment
Farah Mahbub J: In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned Memo No. Bichar-7/2N-72/2003-243 dated 11-4-2011 (Annexure-H) issued under the signature of respondent No.2 cancelling the petitioner’s license of Nikah Registrar under Kapasia Union, Kapasia, Gazipur should not be declared to have been issued without lawful authority and is of no legal effect.
2. Facts, in brief, are that pursuant to the recommendation of the Member of Parliament of Gazipur-3, Kaliganj, Gazipur dated 29-1-2005 and 9-11-2005 respectively as well as the DO (Demi-Official) letter issued by another Member of Parliament of Gazipur-4, Kapashia, Gazipur dated 15-1-2003 (Annexure-A, A-I and A-2 respectively) the respondent No.2 had appointed the petitioner as Nikah Registrar of Kapasia Union, Police Station.-Kapasia, District-Gazipur vide Memo No. Bichar-7/2N-127/80/716 dated 1-10-2006 on temporary basis (Annexure-B). Since then he had been discharging his duties as Nikah Registrar with full satisfaction of the authority concern.
3. Challenging the said appointment letter of the petitioner one Mohammad Ali Akon, added respondent No.5 (ex-Nikah Registrar) of the said area filed writ petition No.9774 of 2006 before this Hon’ble Court. However, the Rule Nisi issued therein was ultimately discharged vide judgment and order dated 7-5-2008 (Annexure-C). Being aggrieved the said respondent had filed Civil Petition for Leave to Appeal No.440 of 2009 before the Appellate Division which was also dismissed upon hearing the respective contending parties vide Order dated 10-11-209 (Annexure-D).
4. Meanwhile, the respondent No.5 made an application to the Hon’ble Minister, Ministry of Law, Justice and Parliamentary Affairs (in short, the Ministry concern) to cancel the appointment letter of the petitioner on the allegation that basing on a false DO letter dated 25-2-2003 issued by the local Member of Parliament the petitioner had managed to obtain the said appointment letter (Annexure-E). Accordingly, legal opinion was sought for in the matter in question by the Ministry concern vide Memo No. wePvi-7/2 Gb-72/2003/202 dated 18-4-2010 from the said local Member of Parliament. On receipt thereof the local Member of Parliament gave reply to the Ministry concern on 5-10-2006.
5. Consequent thereto the respondent No.2 issued show cause notice vide Memo da ted 15-12-2010 to the petitioner with request to give reply within 15(fifteen) days of receipt thereof. The petitioner in response thereof duly gave reply to the Ministry concern on 27-12-2010 (Annexure-G). His reply having been found not satisfactory the respondent No.2 had cancelled the license of the petitioner vide the impugned Memo No. Bichar-7/2N-72/2003-243 dated 11-4-2011 (Annexure-H).
6. Being aggrieved by and dissatisfied with the petitioner has preferred the instant application and has obtained the present Rule.
7. Mr Md Ziaul Haque, the learned Advocate appearing for the petitioner submits that the petitioner has obtained three DO letters from the respective Member of Parliament in due process and that on the basis of the same he was issued license as Nikah Registrar for the respective Union vide the order passed by the respondent concern on 1-10-2006 and that he has been discharging his duties with satisfaction and without any objection from any quarter whatsoever. In this regard, he further goes to submit that the added respondent No.5 with malafide intention upon tempering the DO letter dated 15-1-2003 made an allegation with the Ministry concern against the petitioner. Ultimately the respondent No.2 without perusing the so-called tempered DO letter and con-sidering the context that the said respondent has always been after the petitioner with view to have his license cancelled in order to be reinstated in the respective post ultimately cancelled his license. He further goes to submit drawing attention to the gymwjg weevn I ZvjvK (wbeÜb) wewagvjv, 2009Ò (in short, the Rules, 2009) that on the recommendation of the Member of Parliament neither a license is issued for the respective area nor the said license can be cancelled. In this regard, he also submits that the petitioner was appointed as the Nikah Registrar for the respective union having requisite qualifications, but his license had been cancelled pursuant to the alleged issuance of forged DO letter; whereas within the frame work of the Rules, 2009 for issuing license DO letter so issued by the local Member of Parliament has no role to play. He also goes to submit that in his service career never any allegations whatsoever was brought against him within the mischief of Am`vPib (misconduct). In addition to that he submits that the authority has cancelled his license basing on the alleged forged DO letter which had been issued 3 (three) years prior to the appointment of the petitioner for the respective area. Accordingly, he submits that the impugned order having been passed by the Ministry concern bringing on the basis of allegations which do not come within the mischief of Am`vPib (misconduct) as defined in rule 11 of the Rules, 2009 hence, it is liable to be declare to have been passed without lawful authority and is of no legal effect.
8. Conversely, Mr Mamun Mahbub, appearing with Mr Md Mesbahul Islam Asif, the learned Advocates on behalf of the respondent No.5 submits drawing attention to rule 11 of the Rules, 2009 that as per the said provision the word Am`vPib means AvBb ev wewagvjvi †h †Kvb weavb jsNb, GKvwaK GjvKvi wbKvn †iwR÷ªvi nIqv ev †h †Kvb ai‡bi Z‡_¨i wg_¨v eY©bv ˆbwZK ¯’’jb‡K eySvB‡e| In this regard he goes to argue that though DO letter is not required for the purpose of getting license of Nikah Registrar but in the instant case a forged DO letter of the respective local Member of Parliament was submitted by the petitioner for the said purpose; hence it comes under the purview of misconduct which also includes †h †Kvb ai‡bi Z‡_¨i wg_¨v eY©bv|. He also goes to submit that the issues so have been raised by the petitioner in the instant Rule involves disputed question of fact and, as such, cannot be adjudicated by this Hon’ble Court while exercising writ jurisdiction and, as such, on that score as well this Rule is liable to be knocked down as being not maintainable. He further goes to contend that the Ministry concern after issuing show cause notice and complying all legal formalities had lawfully cancelled the license of the petitioner and thereby had declared the respective post vacant; thus this Rule being devoid of any substance for consideration it is liable to be discharged and that the Ministry concern should be allowed to initiate process for fresh appointment of a Nikah Registrar in the respective area in accordance with law. Lastly, he goes to contend by submitting a supplementary affidavit today, particularly drawing attention to the opinion so had been given by the Inquiry Officer who inquired into the matter on 17-4-2005(Annexure-11(B) on the issue as to whether the petitioner is the permanent resident of the respective Union, where it has been categorically observed, inter alia,-
ÒAZGe, m‡iRwg‡b Z`‡šÍ cÖvß mKj Z_¨vw`, Dcw¯’Z mKj mvÿxM‡Yi wjwLZ Ges †gŠwLK e³e¨ Ges cvwicvwk¦©KZv wePvi we‡ePbvq cÖZxqgvb nq †h, Rbve gvngy`yj nvmvb Kvcvwmqv BDwbq‡bi ¯’vqx evwm›`v b‡nb|Ó
9. Controverting the said assertion the learned Advocate for the petitioner submits that the said inquiry report has subsequently been reversed by the authority concern as such, the opinion so had been made in the said inquiry report has no force in the eye of law, at the moment.
10. Mr Titus Hillol Rema appearing with Ms. Farida Yeasmin, the learned Assistant Attorney-Generals on behalf of respondent-
government submits that the impugned order of cancellation of license had been passed by the respondent concern in due compliance of rule 11 of the Rules, 2009, for before such cancellation the petitioner was duly issued show cause notice bringing notice specifying the allegation of submitting a forged DO letter of the respective Member of Parliament. As such, on that score it cannot be said that the same held been passed without lawful authority. He also goes to submit drawing attention to rule 9 clause (ga) of the Rules, 2009 that the relevant documents which are required to be submitted by the aspirant candidates along with the application are ÒRvZxq cwiPqcÎ ev BDwbqb cwil‡`I †Pqvig¨vb ev †cŠimfv ev wmwU K‡c©v‡ikb Gi KvDwÝji ev Kwgkbvi KZ©…K cÖ`Ë bvMwiKZ‡Z¡I mb`|Ó Moreso, in Form-Ka, as is incorporated in the schedule which has been framed pursuant to rule 9, it has been clearly prescribed, inter alia-Òhvnv‡`I wbKU nB‡Z PvwiwÎK mb`cÎ msMÖn Kwiqv `iLv‡¯Íi mwnZ †ck Kiv nBqv‡Q Zvnv‡`I bvg I wVKvbv.Ó In that view of the matter he submits that the Demo Official letter so has been issued by the respective Member of Parliament clearly comes within the mischief of the information so required to be given with regard to the character certificate and, as such, the DO letter so had been issued by the concern local Member of Parliament has a role to play towards issuance of license of Nikah Registrar of a particular area. In that view of the matter he submits that this Rule should be discharged being devoid of any substance for consideration.
11. From record it appears that the petitioner was the aspirant candidate for appointment of Nikah Registrar of Kapasia Upazila Kapasia Union, District-Gazipur. To that effect the local Member of Parliament of Gazipur-3 issued 2 (two) DO letters dated 29-1-2005 and 9-11-2005 (Annexure-A and A-1 respectively) From Annexure-A-2 however, it appears that another DO letter has been claimed to have been given to the petitioner by the respective local Member of Parliament of Kapasia Union on 15-1-2003. Pursuant thereto vide Memo No. Bichar-7 /2N-127 /80/716 dated 1-10-2006 (Annexure-B) the petitioner had been issued license as Nikah Registrar of Kapasia Union, on temporary basis.
12. The cause of action arose when an allegation had been made by the added-respondent No.5 that the said DO letter dated 15-1-2003 (Annexure-A-2) is a forged one, consequent there to the matter was brought to the notice of the concern local Member of Parliament vide Memo No. wePvi-7/2 Gb-72/2003/202 dated 18-4-2010 (Annexure-J of the supplementary affidavit); in reply, he duly opined, inter alia-
“Attention: Mr Secretary, Ministry of Law, Justice and Parliamentary Affairs. This is to inform you that this letter has not been issued by me or my office and is therefore, a forgery, My signature has been forged. I urge you to investigate this serious violation and take legal action against the person responsible.
Sd./ ……
Tanjim Ahmad (Sohel Taj)
196, Gazipur-4″
13. Ultimately, on 15-12-2010 (Annexure-F of the writ petition) the petitioner was issued a show cause notice directing him to give reply to the allegation so brought against him. The petitioner duly gave reply on 27-12-2010 (Annexure-G-l). His reply having been found not satisfactory, his license was cancelled.
(To be continued)
14. In the given facts and circumstances, the issue to be resolved is whether the DO letter issued by the respective Member of Parliament can go to regulate the appointment of a Nikah Registrar within the frame work of the “Muslim Marriages and Divorce (Registration) Act, 1974 and the Rules, 2009. However, rule 8 of the Rules, 2009 prescribed the requirement to be eligible for appointment as a Nikah Registrar, which runs as under-
ÒcÖv_x©‡`I †hvM¨Zv, BZ¨vw`|- †Kvb e¨w³ wbKvn †iwR÷ªv‡ii jvB‡mÝ cvBevi †hvM¨ nB‡eb bv, hw` bv-
(K) wZwb miKvi KZ©”K ¯^xK…Z [evsjv‡`k gv`ivmv wkÿv †evW©, XvKv] KZ©„K wbewÜZ †Kvb gv`ªmv nB‡Z Avjxg mvwU©wd‡Kuavix bv nb;
(L) Zvnvi eqm Kgc‡ÿ GKzk Ges Ab~aŸ© [cuqZvwjøk] eQi bv nq;
(M) wZwb mswkøó GjvKvi evwm›`v bv nb|Ó
15. In addition to that rule 9 also prescribes certain documents to be affixed with the application of the aspirant candidate for having license of a Nikah Registrar of the respective area, which is quoted herein below-
ÒwbKvn †iwR÷ªv‡ii jvB‡m‡Ýi Rb¨ `iLv¯Í-wbKvn †iwR÷ªvi jvB‡m‡Ýi Rb¨ cÖwZwU `iLv¯Í, wbgœewY©Z KvMRcÎmn, dig ÔKÕ †Z mswkøó Dc‡`óv KwgwUi m`m¨ mwP‡ei wbKU `vwLj Kwi‡Z nB‡e h_t
(K) wZb Kwc cvm‡cvU© mvB‡Ri Qwe|
(L) wkÿvMZ †hvM¨Zvi mb`c‡Îi mZ¨vwqZ Kwc Ges
(M) RvZxq cwiPqcÎ ev BDwbqb cwil‡`I †Pqvig¨vb ev †cŠimfv ev wmwU K‡c©v‡ikb Gi KvDwÝji ev Kwgkbvi KZ©„K cÖ`Ë bvMwiK‡Z¡I mb`|Ó
16. In view of the above (2) two provisions of the Rules, 2009, along with the requirement to have the certificate issued by the Madrasha Education Board, along with the certificate as to whether he is within the age limit and that he is the resident of the respective area the candidate also has to produce the citizenship certificate to be issued by the Chairman of the respective Union Parishad or Mayor of the Pourashava or Counsellor of the Commissioner of the City Corporation or the National ID Card. However, in Form-Ka, as incorporated in the schedule which has been framed pursuant to rule 9, under clause 9 he has to mention the name and address of the person from whom he has obtained character certificate.
17. Mr Mamun Mahbub, the learned Advocate in this regard submits that the legislature having used the words Ò †h †Kvb ai‡bi Z_¨Õ in rule 11 while defining the word Am`vPib misconduct” thus, brings supply of forged DO letter by the petitioner within the mischief of misconduct and, as such, on the allegation of submitting forged DO letter, which has also been confirmed by the respective Member of Parliament on query by the Ministry concern vide Annexure-J of the supplementary affidavit, the petitioner was issued show cause notice, he gave reply and his reply having been found not satisfactory hence, it has been cancelled by the Ministry concern under rule 11 of the Rules, 2009.
18. It is evident that within the frame work of the Rules, 2009 DO letter being issued by the respective Member of Parliament of the respective constituency has no role to play towards issuance of license of a Nikah Registrar. In that view of the matter, question of revocation of license will come into play only on the allegation of misconduct as defined in rule 11 of the Rules, 2009. However, one of the misconducts is Ò †h †Kvb ai‡bi Z‡_¨I wg_¨v eY©bvÓ In this regard, the word Z_¨ correspond to the information as provided under rule 8 of the Rules, 2009. Since the respondent-government has not alleged violation of rule 8 of the Rules, 2009 as such, on the allegation of submitting forged DO letter, which does not regulate the appointment of a Nikah Registrar cannot be cancelled within the framework of Rules, 2009, the license of the petitioner as a Nikah Registrar cannot be knocked down on that count only.
19. However, if it is found by the authority concern in an enquiry or investigation that the said DO letter has been produced by the petitioner resorting to forgery legal steps may be taken by the respondent concern in accordance with law.
20. In view of the facts and circumstances of the case, observations and findings made above we find substance so made by the petitioner and, as such, we are inclined to allow the same.
21. In the result, the Rule is made absolute.
22. The impugned Memo No. Bichar-7/ 2N-72/2003-243 dated 11-4-2011 (Annexure-H) issued under the signature of respondent No.2 cancelling the petitioner’s license of Nikah Registrar under Kapasia Union, Kapasia, Gazipur is hereby declared to have been issued without any lawful authority and is of no legal effect.
There will be no order as to costs.
