High Court Division :
(Special Original Jurisdiction)
Moyeenul Islam Chowdhury J
Bhabani Prasad Singha J
Judgment
September, 15th 2014.
Nahar Hasan…………Petitioner
vs
Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Local Government, Rural Development and Co-Operatives & others…………………….Respondents
Constitution of Bangladesh, 1972
Article 102
It can interfere with the findings of a Court of facts under its extraordinary jurisdiction under Article 102 only if it can be shown that the Court has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/ facts causing prejudice to the petitioner or it has acted malafide or in violation of the principle of natural justice.. … (9)
Village Court Ordinance (LXI of 1976)
Section 5(1)
Where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly. . .(10)
Government of Bangladesh vs Md Jalil, 15 BLD (AD), 175 = 49 DLR (AD) 26 ;
Md Shamim-ul-Alam and Sheikh Hasan Ali, Advocates-For the Petitioner.
Md Motaher Hossain (Sazu), DAG with Purabi
Rani Sharma, AAG and Khairun Nessa, AAG-For the Respondent Nos. 1 & 2.
Md Abdus Salam Mondal, Advocate-For the respondent Nos. 3-6.
Judgment
Moyeenul Islam Chowdhury J: On an application under Article 102 of the Constitution, a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned judgment and order dated 20-7-2005 passed by the respondent No.3 in Case No. 452 dated 29-8-2004 (evidenced by Annexure-C to the Writ Petition) should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Facts relevant to the disposal of the Rule may be, briefly, stated as follows:
The petitioner is a permanent citizen of Bangladesh having her residence at village Uttarkhan Master Bari, Shahi Moszid, Police’ Station Uttara, District-Dhaka. Anyway, on 29-8-2004, the respondent Nos. 5 and 6 submitted a petition of complaint to the respondent No. 3 alleging, inter-alia, that the petitioner had constructed a gate as well as a wall on a piece of land that was being used as a thoroughfare. On the sell-same date (29-8-2004), the respondent No.3 issued a notice upon the petitioner to appear before him with all relevant documents on 2-9-2004 and accordingly, the petitioner appeared before him on that date. At the time of hearing of the matter on 2-9-2004, the petitioner produced all the relevant documents before the respondent No.3 in support of her title to and possession in the piece of land; but the respondent No.3, in alleged violation of the provisions of section 5 of the Village Courts Ordinance, 1976 (since repealed), rendered the impugned judgment and order dated 20-7-2005 curtailing the fundamental right of the petitioner to the enjoyment of her property as contemplated by Article 42 of the Constitution. Hence the Rule.
3. Mr Shamim-ul-Alam, learned Advocate appearing on behalf of the petitioner, submits that the Village Court which rendered the impugned judgment and order was coram-non-judice in view of the fact that the petitioner was not afforded any opportunity of nominating her two members in the prescribed manner as provided by Sub-section (1) of section 5 of the Ordinance and as the Village Court was coram non-judice, the impugned judgment and order passed by the Village Court is a nullity in the eve of law.
4. Mr Md Shamim-ul-Alam further submits that it is crystal clear from Annexure-E, dated 26-8-2005 annexed to the supplementary affidavit dated 2-2-2011 that the respondent No. 3 again notified the parties on 26-8-2005 calling upon them to appear before him on 1-9-2005; but strangely enough, the respondent No.3 passed the impugned judgment and order on 20-7-2005, that is to say, long before hearing of the matter on 1-9-2005 and this virtually amounted to putting the cart before the horse and in this regard, the bad faith of the respondent No.3 is very much apparent on the face of the record and as he was actuated by malice, the impugned judgment and order cannot be sustainable in law.
5. Per contra, Mr Md Abdus Salam Mondal, learned Advocate appearing on behalf of the respondent Nos. 3-6, contends that the respondent No.3 being unaware of the provisions of the relevant law passed the impugned judgment and order.
6. Mr Md Abdus Salam Mandal also contends that the petitioner failed to nominate her two members as required by Sub-section (1) of section 5 of the Village Courts Ordinance, 1976 at her own peril and that being so, the petitioner cannot turn round and agitate at this stage that she was not called upon by the respondent No.3 to nominate her two members as required there under and Sub-section (5) of section 5 of the Ordinance provides that where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly.
7. We have heard the submissions of the learned Advocate Mr Md Shamim-ul-Alam and the counter-submissions of the learned Advocate Mr Md Abdus Salam Mandal and perused the Writ Petition, Supplementary Affidavit to the Writ Petition, Affidavit-in-Opposition and relevant Annexures annexed thereto.
8. At the outset, we would like to point out that this is a writ of certiorari. The scope of a writ of certiorari, it is well-settled, is very limited. The High Court Division exercising power under Article 102 of the Constitution does not function as a Court of Appeal and, as such, it is not required to make determination of facts on its own in a writ of certiorari. It can interfere with the findings of a Court of facts under its extra-ordinary jurisdiction under Article 102 only if it can be shown that the Court has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence / facts causing prejudice to the petitioner or it has acted malafide or in violation of the principle of natural justice. This view is underpinned by the decision in the case of the Government of Bangladesh vs Md Jalil reported in 15 BLD (AD) 175 = 49 DLR (AD) 26.
9. Sub-section (1) of section 5 of the Village Courts Ordinance does not cast any duty upon the respondent No.3 to call upon the parties concerned to nominate their respective members in the prescribed manner for resolution of their dispute. From a bare reading thereof, it seems to us that the parties to the dispute are required to nominate their respective members in the prescribed manner of their own motion. In case of their failure in this respect, the provisions of Sub-section (5) of section 5 of the Ordinance will come into play. Sub-section (5) of section 5 of the Ordinance provided that where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly.
In this perspective, the failure of the petitioner to nominate her two members as required by Sub-section (1) section 5 of the Ordinance will not debar the Village Court from proceeding with the trial of the case. That being the legal position, no exception can be taken to the constitution of the Village Court.
10. However, it is not the case of the contesting respondents that they also failed to nominate their two members in the prescribed manner for resolution of the dispute. In the absence of any such statement in the Affidavit-in-Opposition, it can be safely held that the contesting respondent Nos. 5 and 6 nominated their members in the prescribed manner as required by Sub-section (1) of section 5 of the Ordinance. But curiously enough, the impugned judgment and order dated 20-7-2005 does not contain the signatures of the members nominated by the respondent Nos. 5 and 6. What we are driving at boils down to this: the impugned judgment and order was rendered only by the respondent No.3 which is illegal on the face of it.
11. There is no gainsaying the fact that the notice dated 26-8-2005 (Annexure-E) was issued calling upon the parties concerned to appear before the respondent No. 3 with all their relevant documents on 1-9-2005; but strangely enough, the impugned judgment and order was admittedly rendered by the respondent No.3 on 20-7-2005, that is to say, long before the date of hearing of the matter before the respondent No.3 on 1-9-2005. It transpires that Mr Md Shamim-ul-Alam has rightly submitted that this amounted to putting the cart before the horse. Given this scenario, we have no hesitation in holding that the impugned judgment and order dated 20-7-2005 stands vitiated by malafides or bad faith and that bad faith is writ large on the record itself. Precisely speaking, the impugned judgment and order is a classic case of bad faith on the part of the respondent No.3.
12. By the way, we feel tempted to say that malafides or bad faith is a question of fact; but where malafides or bad faith is apparent on the face of the record, this Court can take notice thereof and arrive at appropriate findings on its basis in this summary proceeding under Article 102 of the Constitution.
13. As we have already observed that malice or bad faith is apparent on the face of the record and as bad faith has vitiated the impugned judgment and order dated 20-7-2005, we need not go into the merit of the case.
14. From the foregoing discussions and in the facts and circumstances of the case, we find substance in the Rule. The Rule, therefore, succeeds.
15. Accordingly, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 20-7-2005 passed by the respondent No.3 in Case No. 452 dated 29-8-2004 (Annexure-C to the Writ Petition) is declared to be without lawful authority and of no legal effect.
Communicate a copy of this judgment to the respondent No.3 for information and necessary guidance.
(Special Original Jurisdiction)
Moyeenul Islam Chowdhury J
Bhabani Prasad Singha J
Judgment
September, 15th 2014.
Nahar Hasan…………Petitioner
vs
Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Local Government, Rural Development and Co-Operatives & others…………………….Respondents
Constitution of Bangladesh, 1972
Article 102
It can interfere with the findings of a Court of facts under its extraordinary jurisdiction under Article 102 only if it can be shown that the Court has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/ facts causing prejudice to the petitioner or it has acted malafide or in violation of the principle of natural justice.. … (9)
Village Court Ordinance (LXI of 1976)
Section 5(1)
Where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly. . .(10)
Government of Bangladesh vs Md Jalil, 15 BLD (AD), 175 = 49 DLR (AD) 26 ;
Md Shamim-ul-Alam and Sheikh Hasan Ali, Advocates-For the Petitioner.
Md Motaher Hossain (Sazu), DAG with Purabi
Rani Sharma, AAG and Khairun Nessa, AAG-For the Respondent Nos. 1 & 2.
Md Abdus Salam Mondal, Advocate-For the respondent Nos. 3-6.
Judgment
Moyeenul Islam Chowdhury J: On an application under Article 102 of the Constitution, a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned judgment and order dated 20-7-2005 passed by the respondent No.3 in Case No. 452 dated 29-8-2004 (evidenced by Annexure-C to the Writ Petition) should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Facts relevant to the disposal of the Rule may be, briefly, stated as follows:
The petitioner is a permanent citizen of Bangladesh having her residence at village Uttarkhan Master Bari, Shahi Moszid, Police’ Station Uttara, District-Dhaka. Anyway, on 29-8-2004, the respondent Nos. 5 and 6 submitted a petition of complaint to the respondent No. 3 alleging, inter-alia, that the petitioner had constructed a gate as well as a wall on a piece of land that was being used as a thoroughfare. On the sell-same date (29-8-2004), the respondent No.3 issued a notice upon the petitioner to appear before him with all relevant documents on 2-9-2004 and accordingly, the petitioner appeared before him on that date. At the time of hearing of the matter on 2-9-2004, the petitioner produced all the relevant documents before the respondent No.3 in support of her title to and possession in the piece of land; but the respondent No.3, in alleged violation of the provisions of section 5 of the Village Courts Ordinance, 1976 (since repealed), rendered the impugned judgment and order dated 20-7-2005 curtailing the fundamental right of the petitioner to the enjoyment of her property as contemplated by Article 42 of the Constitution. Hence the Rule.
3. Mr Shamim-ul-Alam, learned Advocate appearing on behalf of the petitioner, submits that the Village Court which rendered the impugned judgment and order was coram-non-judice in view of the fact that the petitioner was not afforded any opportunity of nominating her two members in the prescribed manner as provided by Sub-section (1) of section 5 of the Ordinance and as the Village Court was coram non-judice, the impugned judgment and order passed by the Village Court is a nullity in the eve of law.
4. Mr Md Shamim-ul-Alam further submits that it is crystal clear from Annexure-E, dated 26-8-2005 annexed to the supplementary affidavit dated 2-2-2011 that the respondent No. 3 again notified the parties on 26-8-2005 calling upon them to appear before him on 1-9-2005; but strangely enough, the respondent No.3 passed the impugned judgment and order on 20-7-2005, that is to say, long before hearing of the matter on 1-9-2005 and this virtually amounted to putting the cart before the horse and in this regard, the bad faith of the respondent No.3 is very much apparent on the face of the record and as he was actuated by malice, the impugned judgment and order cannot be sustainable in law.
5. Per contra, Mr Md Abdus Salam Mondal, learned Advocate appearing on behalf of the respondent Nos. 3-6, contends that the respondent No.3 being unaware of the provisions of the relevant law passed the impugned judgment and order.
6. Mr Md Abdus Salam Mandal also contends that the petitioner failed to nominate her two members as required by Sub-section (1) of section 5 of the Village Courts Ordinance, 1976 at her own peril and that being so, the petitioner cannot turn round and agitate at this stage that she was not called upon by the respondent No.3 to nominate her two members as required there under and Sub-section (5) of section 5 of the Ordinance provides that where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly.
7. We have heard the submissions of the learned Advocate Mr Md Shamim-ul-Alam and the counter-submissions of the learned Advocate Mr Md Abdus Salam Mandal and perused the Writ Petition, Supplementary Affidavit to the Writ Petition, Affidavit-in-Opposition and relevant Annexures annexed thereto.
8. At the outset, we would like to point out that this is a writ of certiorari. The scope of a writ of certiorari, it is well-settled, is very limited. The High Court Division exercising power under Article 102 of the Constitution does not function as a Court of Appeal and, as such, it is not required to make determination of facts on its own in a writ of certiorari. It can interfere with the findings of a Court of facts under its extra-ordinary jurisdiction under Article 102 only if it can be shown that the Court has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence / facts causing prejudice to the petitioner or it has acted malafide or in violation of the principle of natural justice. This view is underpinned by the decision in the case of the Government of Bangladesh vs Md Jalil reported in 15 BLD (AD) 175 = 49 DLR (AD) 26.
9. Sub-section (1) of section 5 of the Village Courts Ordinance does not cast any duty upon the respondent No.3 to call upon the parties concerned to nominate their respective members in the prescribed manner for resolution of their dispute. From a bare reading thereof, it seems to us that the parties to the dispute are required to nominate their respective members in the prescribed manner of their own motion. In case of their failure in this respect, the provisions of Sub-section (5) of section 5 of the Ordinance will come into play. Sub-section (5) of section 5 of the Ordinance provided that where members required under this section to be nominated are not nominated within the prescribed time, the Village Court shall, without such members, be deemed to have been validly constituted and the trial shall proceed accordingly.
In this perspective, the failure of the petitioner to nominate her two members as required by Sub-section (1) section 5 of the Ordinance will not debar the Village Court from proceeding with the trial of the case. That being the legal position, no exception can be taken to the constitution of the Village Court.
10. However, it is not the case of the contesting respondents that they also failed to nominate their two members in the prescribed manner for resolution of the dispute. In the absence of any such statement in the Affidavit-in-Opposition, it can be safely held that the contesting respondent Nos. 5 and 6 nominated their members in the prescribed manner as required by Sub-section (1) of section 5 of the Ordinance. But curiously enough, the impugned judgment and order dated 20-7-2005 does not contain the signatures of the members nominated by the respondent Nos. 5 and 6. What we are driving at boils down to this: the impugned judgment and order was rendered only by the respondent No.3 which is illegal on the face of it.
11. There is no gainsaying the fact that the notice dated 26-8-2005 (Annexure-E) was issued calling upon the parties concerned to appear before the respondent No. 3 with all their relevant documents on 1-9-2005; but strangely enough, the impugned judgment and order was admittedly rendered by the respondent No.3 on 20-7-2005, that is to say, long before the date of hearing of the matter before the respondent No.3 on 1-9-2005. It transpires that Mr Md Shamim-ul-Alam has rightly submitted that this amounted to putting the cart before the horse. Given this scenario, we have no hesitation in holding that the impugned judgment and order dated 20-7-2005 stands vitiated by malafides or bad faith and that bad faith is writ large on the record itself. Precisely speaking, the impugned judgment and order is a classic case of bad faith on the part of the respondent No.3.
12. By the way, we feel tempted to say that malafides or bad faith is a question of fact; but where malafides or bad faith is apparent on the face of the record, this Court can take notice thereof and arrive at appropriate findings on its basis in this summary proceeding under Article 102 of the Constitution.
13. As we have already observed that malice or bad faith is apparent on the face of the record and as bad faith has vitiated the impugned judgment and order dated 20-7-2005, we need not go into the merit of the case.
14. From the foregoing discussions and in the facts and circumstances of the case, we find substance in the Rule. The Rule, therefore, succeeds.
15. Accordingly, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 20-7-2005 passed by the respondent No.3 in Case No. 452 dated 29-8-2004 (Annexure-C to the Writ Petition) is declared to be without lawful authority and of no legal effect.
Communicate a copy of this judgment to the respondent No.3 for information and necessary guidance.
