1
IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION N0. 1875 of 2013
THE MATTER OF;
An application under article 102 of the Constitution of the People’s Republic of Bangladesh.
-And-
IN THE MATTER OF; Haji Tahir Ali
.... Petitioner
-Versus-
Government of Bangladesh, represented by the Secretary, Ministry of Local Government and Engineering Division, Bangladesh Secretariat, Secretariat Building, Dhaka & others.
.... .. Respondents.
Mr. Md. Mahbub Ali, Advocate ...... for the petitioner
Mrs. Rezina Mahmud, Advocate .........for Respondent No.9
Present:
Ms. Justice Zinat Ara
And
Mr. Justice J.N. Deb Choudhury.
Heard on 02.04.2015 & 05.04.2015 and Judgment on: 06.04.2015.
J.N. Deb Choudhury, J :
On an application under article 102 of the Constitution of the People’s Republic of Bangladesh, the petitioner has called in question the legality and propriety of the decision taken by the Upazilla Education Committee dated 11.10.2012, Upazilla-Balagonj, District-Sylhet, under the signature of the Chairman, Upazilla Educaion Committee, Balagonj, Sylhet (respondent No. 5) so far it relates to the discussion and decision No. 12, taking a decision to establish Boro Dhirarai Primary School in 2nd proposed land of plot Nos. 533, 537 and 538. Upon hearing of the said application this Court on 10.02.2013 was pleased to issue Rule Nisi upon the respondents to show cause as to why the decision as mentioned above shall not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders be passed as to this Court may seem fit and proper.
The petitioner of the writ petition narrated his assertions, are as under:
The petitioner is all along a philanthropist, who made substantial contribution for imparting education of the poor for the welfare of the people by establishing and donating various Mosques and Moktobs. Particularly, for establishing Boro Dhirarai Primary School the petitioner donated an area of 36 decimal of land by registered deed dated 29.02.2012. The Government of Bangladesh through Ministry of Local Government Engineering Division taken a decision to establish 1500 Primary Schools in the villages all over the country, where there is no primary school and where primary education is not easily reachable to all. The village Boro Dhirarai is situated in a remote place of Balagonj Upazilla, in district Sylhet, where there is no Primary School and the nearby schools or Madrashas are more than 2/3 K.M. away from the village. In view of the decision for establishing of 1500 primary schools, one Anwar Hossain on behalf of the villagers of Boro Dhirarai submitted an application on 04.04.2011 before the respondent No. 3, Project Director of “1500 Primary Education Establishment Project” to take necessary steps for establishing a Primary School in their village on the land of Haji Tahir Ali, son of late Maan Ullah, Haji Tohir Ali, son of late Maan Ullah and Haji Ator Ali, son of late Anis Ullah also agreed to transfer a quantum of land measuring an area of 36 decimals for the purpose of establishing the school. The local member of the Parliament also recommended to take necessary steps to establish primary school in that area. The Local Government and Engineering Department issued a circular dated 28.07.2011(Annexure-A-1 to the writ petition) stating the terms and conditions for establishing Primary school. Thereafter, the local member of Parliament sent a letter dated 30.05.2012 (Annexure-D to the Writ Petition), to the respondent No. 3, to take proper steps for establishing the primary school at the proposed place of Anwar Ali; but, inspite of the report and sketch map dated 20.01.2012 (Annexure-B and B-1 to the Writ Petition) and the recommendation of the Local Member of Parliament, the Upazilla Education Committee presided by the respondent No. 5, by the impugned decision dated 11.10.2012 took decision to establish primary school at a different place on plot Nos. 533, 537 and 538 which is shown in the map as 2nd proposed land in the map (Annexure-B-1 to the writ petition), situated on one side of the village and not convenient.
In the backdrop of the aforesaid facts and circumstances, the petitioner filed the Writ Petition and obtained the instant Rule.
Respondent No. 9, who himself subsequently added as a party in the instant writ petition, claiming himself as a public spirited person and is activist in establishing the present school with the help of local peoples and contested the Rule with a prayer to treat his application for addition of party as an affidavit-in-opposition and on denying the material averments made in the writ petition contending, inter alia, that the decision No. 12 which is under challenge in this writ petition was rightly taken in accordance with law and the place as selected by the impugned decision is more convenient for the students of the said village named Boro Dhirarai.
Mr. Mahbub Ali, the learned Advocate for the petitioner takes us through the Writ Petition as well as the annexures thereto, the materials on record and submits that in view of the circular dated 28.07.2011 issued by the respondent No. 2 (Annexure-A1 to the Writ Petition), specifically stating that selection of place of the said school must be made by Upazilla Education Officer, Balagonj, Sylhet, respondent No. 7, Upazilla Nirbahi Officer, Balagonj, Sylhet, respondent No. 6 and Upazilla Engineer (LGED), Balagonj, Sylhet, respondent No. 8; but, the decision under challenge was taken by Upazilla Education Committee dated 11.10.2012, was taken at the instance of Local Union Parishad Chairman and the female members of ward No. 1, 2 and 3 of the locality and as such, the process of taking decision for selecting the place, is a complete violation of circular dated 28.07.2011. He further submits that on 30.05.2012 the local member of the Parliament also recommended the proposed land of Anwar Ali and after completion of formalities the petitioner along with Haji Mohammad Tohir Ali and Haji Mohammad Ator Ali gifted the land measuring an area of 0.36 acres by a registered deed dated 29.12.2009. He further submits that the land gifted by the petitioner and his brother is situated in a suitable place, for establishing the proposed school (Annexure- E to the writ petition); but, without considering those aspects the decision has been taken illegally and prayed for making the Rule absolute.
In reply, Mrs. Rezina Mahmud, the learned Advocate for the respondent No. 9, submits that the decision taken in the meeting dated 11.10.2012 at serial No. 12 was done after proper consideration of the documents and on negotiation at the instance of the Upazilla Chairman, who requested the Chairman of the local Union Parishad, ward member and the female member of the ward Nos. 1, 2 and 3 of the local Union Parishad and other elderly persons of the locality and they upon proper consideration, advised for establishing the proposed school on plot Nos. 533, 537 and 538 and upon such advice the impugned decision dated 11.10.2012 had been taken lawfully. The learned advocate further submits that the site selection, is a business of the Government and relates to policy matter and, as such, the petitioner had no locus standi to challenge such a policy decision of the Government and in support of her contention, relied upon the case of Md. Abdul Motaleb Sarker
and others versus Md. Lasker Ali and others reported in 15 MLR (AD) 230. Accordingly, she prays for discharging the Rule.
In view of the arguments as advanced by the learned Advocates for the contending parties, the only point to be decided in this writ petition is, whether
the decision taken by the Upazilla Education Committee on 11.10.2012(Annexure-E to the writ petition) under signature of respondent No.
5 at serial No. 12, for establishing the proposed primary school on plot Nos.
533, 537 and 538 is lawful.
We have thoroughly examined the Writ Petition and the annexures thereto, the application for addition of party which is treated as an Affidavit-in- opposition filed by the respondent No. 9 along with annexures thereto.
In deciding the matter, we considered the circular dated 28.07.2011 (annexure-A 1 to the Writ Petition), which is quoted as follows:
“¢houx ¢hcÉ¡mu¢hq£e Hm¡L¡u 1500 fË¡b¢jL ¢hcÉ¡mu Øq¡fe n£oÑL fËL−Òfl BJa¡u Ef−Sm¡ ®b−L ®fË¢la a¡¢mL¡l j−dÉ ANË¡¢dL¡l ¢i¢š−a 30% NË¡j ¢ehÑ¡Qe fËp−‰z
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(2) fÊ¡b¢jL ¢nr¡ A¢dcç−ll pÈ¡lL ew- ¢hx¢hx/1500
¢hx.Öq¡xfËx/09/2011/72/1508 a¡¢lMx 27.07.2011 Cw z
(3) Hm¢SC¢X/¢fC¢X¢f/He-03/2010/4481, a¡¢lMx 12.06.20 1 Cwz
Ef−l¡š² ¢ho−ul ®fË¢r−a S¡e¡−e¡ k¡−µR ®k, p¡l¡ ®c−n ¢hcÉ¡mu¢hq£e Hm¡L¡u 1500
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CE¢eu−el j−dÉ NËqZ Ll−a q−hz
H−r−œ E−õ¢Ma ¢e−cÑne¡ Ae¤pl−el j¡dÉ−j ®k pLm NË¡jpjq § ¢hcÉ¡m−ul SeÉ S¢jl
fËÙ¹¡h ®cu¡ pñh ®p pLm NË¡j Hhw fËÙ¹¡¢ha S¢j pÇf¢LÑa ¢ejÀ¢m¢Ma abÉ ®fËlZ BhnÉLz
S¢j pe¡š²LlZj§mL ¢e−cÑne¡x
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2z eeS¤¢X¢nu¡m ØVÉ¡Çf ®ff¡−l S¢jl j¡¢m−Ll A‰£L¡le¡j¡ (gl−jV pwk¤š²)z
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Hhw Ef−Sm¡ ¢ehÑ¡q£ LjÑLaÑ¡l ®k±b ü¡r−ll j¡dÉ−j A¡N¡j£ 10-08-2011 Cw a¡¢l−Ml j−dÉ ®fËlZ ¢e¢ÕQa Ll−a q−hz
Hja¡hÙÛ¡u Ef−l¡š² ¢e−cÑne¡ f¡me f§hÑL abÉRL f§lZ Hhw h¢ZÑa A¡e¤p¡w¢NL L¡NSfœ¡¢cpq ANË¡¢dL¡l ¢i¢š−a fÐÙ¹¤aL«a NË¡jpj§−ql a¡¢mL¡ pð¢ma f§ZÑ¡‰ fТa−hce A¡N¡j£ 10-08-2011 Cw a¡¢l−Ml j−dÉ Aœ cç−l ®fÐl−Zl SeÉ ¢e−cÑn fÊc¡e Ll¡ q−m¡z”
(Underlined, to supply emphasis)
We have also considered the discussion and decision taken by the Upazilla Education Committee on 11.10.2012(Annexure-E to the writ petition)
at serial No. 12 which is also quoted below:
“ A¡−m¡Qe¡- 12 (L) Ef−Sm¡ ®Qu¡ljÉ¡e pi¡−L Ah¢qa L−le ®k, Hm¢SC¢X'l pcl cçl qC−a fСç pÈ¡lL ew Hm¢SC¢X/¢fC¢X¢f/He-03/2010/4481 a¡¢lM: 12/06/2011 Cw a¡¢l−Ml f−œl A¡−m¡−L Aœ h¡m¡N” Ef−Sm¡l ¢hcÉ¡mu ¢hq£e NË¡j ¢Q¢q²a L−l ®j¡V 14¢V NË¡−jl A¢a¢lš² fÐd¡e fÐ−L±nm£ j−q¡c−ul hl¡h−l pÈ¡lL ew - Hm¢SC¢X/¢fC¢X¢f/He-03/2010/5375 a¡¢lM: 28/07/2011 Cw j¡lga −fÐlZ
Ll¡ quz pÈ¡lL ew - Hm¢SC¢X/¢fC¢X¢f/He-03/2010/5375 a¡¢lM: 28/07/2011
Cw j¡lga pcl cçl qC−a ANË¡d£L¡l ¢i¢š−a 06 ¢V NË¡j ¢ehÑ¡Qe L lu¡ Aœ cç−l
fœ ®fÊlZ Ll¡ qu z NË¡j…¢m kb¡œ²−j l¢ncf¤l/ ¢dl¡l¡C/ ®hNjf¤l/ m¡j¡N¡i¨l¢V¢L/ My¡f¤l/¢pl¡Sf¤lz ®pC ®fТr−a j¡ee£u pwpc pcpÉ ¢p−mV-2 j−q¡c−ul p¤f¡¢lnL«a l¢ncf¤l ¢dl¡l¡C ®hNjf¤l, m¡j¡N¡i¨l¢V¢L HC Lu¢V NË¡−jl fÐ−u¡Se£u L¡NSfœ fÐÙ¹¤a Ll¡ Sl¦l£ fc−rf NËqe Ll¡ qkz HC hÉ¡f¡−l pw¢nÔø CE¢f ®Qu¡ljÉ¡e p¡−qh−cl−L
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A¢aœ²j qJu¡l fl ¢dl¡l¡C NË¡−jl A¡lJ c¤C fr ¢hcÉ¡mu ihe ¢ejÑ¡−Zl SeÉ S¡uN¡ ®l¢Sø¡l£ L¢lu¡ ¢c−he h¢mu¡ −j±¢MLi¡−h pÇj¢a fÐc¡e L−lez fÐÙ¹¡¢ha 3¢V ÙÛ¡e M¤hC L¡R¡L¡¢Rz g−m ¢hcÉ¡m−ul ÙÛ¡e ¢ed¡Ñl−e S¢Vma¡ pª¢ø qu z flhaÑ£−a ¢hou¢V j¡ee£u pwpc pcpÉ ¢p−mV-2 j−q¡cu−L −j±¢ML i¡−h Ah¢qa L¢l−m , ¢a¢e hou¢V ¢elp−el
SeÉ Ef−Sm¡ ®Qu¡ljÉ¡e, pw¢nÔø CE¢f pcpÉ Hhw 1,2,3 Ju¡−XÑl pwl¢ra j¢qm¡ pcpÉ pq Hm¡L¡l NeÉj¡eÉ hÉ¢š²NZ−L ¢hou¢V ¢elp−el SeÉ c¡¢uaÅ fÊc¡e L−lez C¢aj−dÉ ÙÛ¡e£u i¡−h 3¢V f−rl j−dÉ 2¢V fr ÙÛ¡e ¢ehÑ¡Q−e HLja qe z ¢L¿¹¤ Afl HL¢V fr HMeJ ¢iæ ja ®f¡oe L¢l−a−Rez h¡Ù¹h AhÙÛ¡ pq p¡¢hÑL ¢cL ¢h−hQe¡ L¢lu¡ pw¢nÔø CE¢eue f¢lo−cl ®Qu¡ljÉ¡e, 3 ew Ju¡−XÑl pcpÉ Hhw 1,2 J 3 ew Ju¡−XÑl pwl¢ra j¢qm¡ pcpÉ h¢ZÑa ag¢p−ml (®S, Hm ew -93 c¡N ew -533, 537
Hhw 538 ®j±S¡ hs¢dl¡l¡C) ÙÛ¡e¢V ¢hcÉ¡mu ¢ejÑ¡−el SeÉ ¢eh¡ÑQe L¢lu¡ fÐaÉue fœ fÐc¡e L¢lu¡−Rez HC hÉ¡f¡−l pi¡u ¢hÙ¹¡¢la A¡−m¡Qe¡ Ll quz Hhw ¢e¾j¢m¢Ma
¢pÜ¡¿¹ Nªq£a qux-
¢pÜ¡¿¹: ÙÛ¡e£u CE¢f ®Qu¡ljÉ¡e, pcpÉ, pcpÉ¡NZ LaѪLa fÐaÉueL«a 533, 537 J 538 c¡−Nl i ¨¢j−a ¢hcÉ¡mu Nªq ¢ejÑ¡−el p¤f¡¢ln Hhw Q¡¢qa j−a fÐ−u¡Se£u L¡NSfœ¡¢c Hm¢SC¢X'l pcl cç−l kb¡kb LaѪfr hl¡h−l −fÐl−Z phÑ pÇja ¢pÜ¡¿¹ Nªq£a quz
(Bold by me for giving emphasis)
Mrs. Rezina Mahmud, the learned advocate for respondent No. 9 invites our attention to the circular dated 28.07.2011 (Annexure-A 1 to the Writ Petition) which was also annexed by the respondent No. 9 as annexure 1 series with the application for addition of party (treated as affidavit-in-opposition) and the tenders (works) dated 30.09.2012 (Annexure-1 series of the application for addition of party). But, it appears that the Upazilla Education Committee took the decision for establishing the school at Boro Dhararai village on 11.10.2012 and forwarded the said decision before the head office of the Local Government Engineering Department for taking further decision therein, so it appears to us that the invitation for tender dated 30.09.2012 before decision of Upazilla Education Committee on 11.10.2012 was malafide. Before selection and final decision there cannot be any invitation for tender. It also appears from the invitation for tender dated 30.09.2012, that the same was for “Government Primary School Reconstruction and Renovation Project” and not for construction for any new school.
From the circular dated 28.07.2011 (annexure-A-1 to the Writ Petition) as we have quoted earlier, it appears that the selection of site for the proposed school must be made by the Upazilla Education Officer, Balagonj, District- Sylhet, Upazilla Nirbahi Officer, Balagonj, District-Sylhet and by Upazilla Engineer of LGED, Balagonj, Sylhet. But it appears from the decision taken by the Upazilla Education Committee dated 11.10.2012 (Annexure-E to the Writ Petition), at the instance of Chairman of local Union Parishad, member of ward No. 3, and female member of ward Nos. 1, 2 and 3 and not by the authorites as we have stated above.
The decision cited by the learned advocate for the respondent No. 9, reported in 15 MLR (AD) 230 has no manner of application in the present case as the facts of the cited case is completely different from the facts of the present case and it was regarding shifting of the office of the Union Parishad, while the present case is for establishing a new primary school on a land gifted by private persons.
Accordingly, we find substance and force in the arguments of the learned advocate for the petitioner and find no substance in the arguments of the learned advocate for the respondent No. 9.
In view of the above discussions, and on consideration of the facts and circumstances, we are of the view that the decision by the Upazilla Education Committee on 11.10.2012 at serial No. 12 (Annexure-E to the Writ Petition) was taken in violation of the admitted Circular dated 28.07.2011 (Annexure- A1 to the Writ Petition) and also arbitrary and malafide as we held earlier and as such, the decision is liable to be struck down.
In the result, the Rule is made absolute.
The impugned decision dated 11.10.2012(Annexure-E to the writ petition) taken by the Upazilla Education Committee under signature of the respondent No. 5, so far it relates to the decision No. 12 is hereby declared illegal, without lawful authority and is of no legal effect.
Respondent No. 6 Upazilla Nirbahi Officer, Upazilla-Balagonj, District- Sylhet, respondent No. 7 Upazilla Education Officer, Upazilla-Balagonj, District-Sylhet and respondent No. 8 Upazilla Engineer, L.G.E.D, Upazilla- Balagonj, District-Sylhet are hereby directed to take necessary steps for selecting the site of the new primary school at village Boro Dhirarai fairly independently as per Circular dated 28.07.2011(Annexure-A1 to the Writ Petition) within a period of 3(three) months from the date of receipt of this judgment.
Communicate the judgment to respondent Nos. 5, 6, 7 and 8 at once. Zinat Ara, J :
I agree.