IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

In the matter of:

WRIT PETITION NO. 12318 of 2019 In the matter of:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

-And-

In the matter of :

Hasina Jamshed and another

..…. Petitioners

Versus-

The Government of Bangladesh and others

     ..... Respondents

Mr. Md. Oziullah with

Md. Golam Nabi, Advocate(s)

   ……For the petitioners Md. Masud Hasan Chowdhury, Advocate

….. For the respondent No. 2 Md. Md. Aminul Islam, Advocate

….. For the respondent No. 7

Mr. Kazi Mynul Hassan, Deputy Attorney General

….. For the respondents

Heard on 17.08.2021, 06.09.2021 and Judgment on 15.09.2021

 Present:                   

Mr. Justice Md. Ashfaqul Islam

And

Mr. Justice Md. Iqbal Kabir

Md. Ashfaqul Islam, J:

This Rule under adjudication, at the instance of the petitioners,

issued on 18.11.2019, was in the following terms:

“Let a Rule Nisi be issued calling  upon the respondents to show cause as to why the approval of the Power of Attorney being No. 209 of 2012 dated 25.01.2012 (Annexure-E-1) issued by the respondent No. 4 vide Memo No. S¡NËL/i¨pS/¢p,¢f-16/81/8343 dated 04.07.2012 and to show cause as to why the proviso of Section 4(6) of the Power of Attorney Act, 2012 “a h naÑ b¡ L ®k, d¡l¡ 9 Hl ¢hd¡e p¡ f r, HLL NËq£a¡l ®r­œ H ¢hd¡e fЭk¡SÉ qC­h e¡” should not be declared inconsistency with the Article 27 of the constitution of the Bangladesh is of void ab-initio and/or such other or further order or orders passed as to this court may seem fit and proper.”

The averments figured in the petition leading to the Rule only which are relevant for disposal of the Rule shall be focused. The Respondent No. 2, Chairman, National Housing authority allotted 350 square yards of land (land in question) standing in Mirpur Housing Estate bearing commercial plot no. 1, Road no. 3, Section-7 as it has been described in the schedule in the writ petition was leased out in favour of respondent No. 6, one Abul Kalam Azad on 22.01.1982 (Annexure-‘A’, ‘A-1’) which was of course a registered deed bearing lease deed No. 1254 dated 09.03.1989. The respondent No. 6 being owner and possessor of the schedule land executed registered power of Attorney No. 743 dated 16.02.1989 in favour of the predecessor of the petitioners Syed Jamsed Hossain Chowdhury (Annexure-‘C). Thereafter this respondent No. 6 in the year of 2010 executed another power of Attorney in favour of the respondent No. 8, Kamrul Ahsan, Managing Director, One Properties Limited being power of Attorney No. 484 dated 04.02.1979. He also executed another power of Attorney in faovur of his brother respondent No. 7, Enamul Hossain which is a foreign power of Attorney being No. 209 of 2012 dated 25.01.2012 which was approved by the respondent No. 2 on 04.07.2012 by the impugned Memo No.  dated 04.07.2012 issued by the respondent No.  4,  Deputy  Director,  Land  and  Property  Management,  National Housing  Authority  (Annexure-‘E-1’).  Curious  enough  that  the  said respondent No. 6 again executed a foreign power of Attorney being No. 855 dated 27.06.2012 in respect of the land in question.

It has been stated that predecessors of the petitioners Syed Jamsed Hossain Chowdhury died on 16.09.2017 leaving behind the petitioners as his legal heirs. The petitioners as successors of the said Syed Jamsed Hossain Chowdhury on 05.03.2019 applied to the respondent No. 2 for disposing of an application dated 03.01.2016 and on that application respondent No. 4 issued a letter dated 14.03.2019 to the petitioners for appearing before him with necessary documents (Annexure-‘J’). After receiving  the  said  letter  from  the  respondent  No.  4  the  petitioners appeared on 23.06.2019 and prayed for approving the power of Attorney as successors of their predecessor.

It has been further stated that the petitioners having no positive result thereafter served a notice demanding justice upon the respondents on 30.07.2019. It is at this stage the petitioner moved this petition under Article 102 of the Constitution and obtained the present Rule.

Mr.  Md.  Oziullah,  the  learned  Advocate  appearing  with  Mr. Golam Nabi, the learned Advocate for the petitioners upon placing the petition, the impugned order, photocopies of all the power of Attornies executed by the respondent No. 6 and other materials on record mainly submits that the respondent No. 6 firstly executed the power of Attorney in the year of 1989 (Annexure-‘C) together with a declaration before Notary Public stating that “

”

In elaborating his submissions the learned Counsel further submits that the said power of Attorney (Annexure-‘C’) is still in force and the respondent  No.  2  and  respondent  No.  4  misdirected  themselves  by approving the power of Attorney executed in favour of respondent No. 7 by the order impugned against. In other words as he submits that without accepting the original documents the respondent No. 2 and 4 most illegally accepted the power of Attorney executed by respondent No. 6 in favour of respondent No. 7.

This Rule has been opposed by respondent No. 2 and 7 by filing two separate affidavits in opposition respectively. The learned Advocate Mr. Md. Masud Hasan Chowdhury appearing for the respondent No. 2 submits that they are at a limbo with the divergent facts of execution of power of Attorney by the respondent No. 6 in favour of predecessors of the petitioners, respondent No. 7 and 8 at different point of time.

On the other hand the learned Advocate Md. Aminul Islam appearing for respondent No. 7 in his affidavit in opposition by making some statements tried to impress upon us that the original Power of attorney has been cancelled by the respondent No. 6 back in the year of 1990. He has annexed a photocopy of deed No. 7832 dated 06.11.1990 (Annexure-1 of his affidavit-in opposition). Hence he submits that the original power of Attorney being cancelled by the respondent No. 6 this writ petition is not maintainable simply on that score.

We have heard the learned counsels representing their respective case at length and considered their submissions carefully. This case has a chequered Career. For better appreciation and understanding let us focus on some of the provisions laid down in power of Attorney Act, 2012 (hereinafter referred to as Act, 2012). In section 2(4) of the said law definition  of   power  of  attorney  (irrevocable  power  of attorney) appears. It runs thus:

“(৪) “                     ব      ”      ব       ব          , ব 

 ব ঋণ   ণ  ব       ব       ব                              ব          ব   ব        ব      ণ        ণ  ব        

                            ব      ;”

Then Section 4 focuses on the provisions relating to handing over power by the irrevocable power of attorney. It runs thus:

“৪। (১) ণ        ণ  ব                               

 ব                             ব ব                                ব        ব  

(২)  -    (১)                        ,                      ব

                     ব                         ব , ব     

     ব ঋণ   ণ  ব     ব                    ব        ব    ব

                                    ব         ব             ণ    ব  

(৩)  -    (১)  (২)    ব       ,        ব              ব     ব    ব                                                      ব       ৩০

(  )                  ব                     ব        ব  ব    

                       ব-                     ণ         ণ         ব:

ব          ,     ১৩    ব         ব                                                                  ব              ব   

(৪)  -    (৩)                                     ১৩    ব         ব                                  ব                               ব  (৫)        ব                   ব     ব                        

                 ব              ব  

(৬)                      ব               ব     ব     ব            ব

          ব                ব                           ব     ব     ব        ব   ব                       ব                 ব        ব:

ব          ,     ৯    ব         ,                  ব            ব

 ”

The law of power of attorney 2012 then specifies what would be the procedure in case of any dispute arisen between the parties that is, the  executant  of  the  power  of  attorney  and  the  holder  of  power  of attorney mainly. It says thus:

“১৩। (১)                                     ব                        ব     ণ                                                 ব  

(২)  -     (১)                            ণ                       ণ     ব     ,                 বব      ব        

              ব  

(৩)  -    (২)                                 ৩০ (  )                                   ব                     ব    

(৪)   ণ                                 ণ                 ব         ব            ব       ব        ব ব       ব                                                 ব     

(৫)  -    (৩)      ব    ণ                   ব                    বব      ব                                                      ব  ” The provisions of Section 13 if be read with Section 4(3-5) it

gives a clear idea that the provisions of Section 13 construe a mandatory implication. The provisions in respect of revocation of power of attorney in  Section  6  manifestly  express  that  other  then  the  discretion  of revocation of power of Attorney by the executor there are some other added grounds equally applicable for revocation of power of attorney. Nowhere in the writ petition it could be found that respondent No. 6 the executor of the said power of attorney in exercise of his own volition had ever  attempted to  revoke  the  power of attorney.  We  don’t find  any earthly reason why the respondent No. 6 did not himself come forward to clarify the fact why he executed all the subsequent power of attorney.

Upon overall analysis of the factual gamut of the case conjunct with  the  relevant  laws  our  considered  view  is  that  from  the  very beginning till the issuance of Rule this case has been handled in a wrong direction. Admittedly Annexure-E-1 (the order impugned against) has been indorsing the power of attorney executed by the respondent No. 6 in favour of respondent No. 7 (No. 209/12 dated 25.01.2012) without taking into consideration other factual aspect that is original power of attorney Annexure-C and other power of attornies at all.

Under this situation, we asked the learned Counsels appearing for the respondents from where they have got this authority to issue such direction  under  the  circumstances.  None  in  the  rat  race  had  ever indicated that of all the power of attornies which one should be taken to be a genuine one. For that reason at the very outset we have mentioned that the parties are at a fix on this point. We are of the view that only in terms of section 13 of the Act, 2012 this unsettled issue can be resolved which may drag the matter before a civil court. In that view of the matter it is our considered view that the order impugned against Annexure-‘E- 1’ dated 04.07.2012 passed by the respondent has certainly been done without any lawful authority having no legal effect and we also direct the parties to strictly comply with the provisions of Section 13 of the Act, 2012 to have a proper decision in accordance with law.    

With this observation and direction the rule is disposed of.

 Communicate at once.

Md. Iqbal Kabir, J:

                                          I agree.

Ismail (B.O)