IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 8107 of 2014

IN THE MATTER OF:

An application under Article 102 (2) (a) (1) of the  Constitution  of  the  People's  Republic of Bangladesh.

AND

IN THE MATTER OF:

Dhaka  District  Judgeship  Ministerial Karmachari Kalyan Samity, represented by its General Secretary-Md. Golam Mustafa, Dhaka Judge  Court,  Police Station-Kotwali,  District- Dhaka 

….Petitioner

Versus

Government  of  People's  Republic  of Bangladesh,  represented  by  the  Secretary, Ministry  of  Home  Affairs,  Bangladesh Secretariat,  Police  Station-  Ramna,  District- Dhaka and others 

….Respondents

Mr. J.K. Paul, Advocate

….For the Petitioner

Mr. Md. Hafizur Rahman, AAG with Mr. Md. Ali Akbor Khan, AAG,

Mr. Elin Imon Saha, AAG and

Mr. Ziaul Hakim, AAG

    .... For the respondent

Mrs. Hosneara Begum, Advocate

  …..For the Respondent No. 6

Present:

Mr. Justice Md. Iqbal Kabir

And

Mr. Justice Md. Riaz Uddin Khan

Judgment on 28.07.2024.

Md. Iqbal Kabir, J:

This Rule Nisi was issued calling upon the respondents to show cause as to why the office memo No. DMSJ/36/2(N) dated 18.08.2014 (Annexure-E) issued by the respondent No. 6 and office memo being No. 3866 dated 01.09.2014 issued by respondent No. 8 shall not be declared to have been made and passed without any lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts stated in this application are that the petitioner obtained the lease of a space from Respondent No. 5 to run/setup a restaurant namely Mitali Canteen. The space is located at the northern side of the southeast gate of the large Courtyard and after the gate at the south side of the new building commonly known as the Metropolitan Sessions Court Building. Petitioner erected a Tinshed semi-pucca structure therein for the function of Mitali Canteen. The petitioner has been paying rent each and every year as determined by respondent No. 5. However, a letter being memo DMSJ/36/2(N) dated 18-08-2014 (Annexure-E) was issued to take the initiative  for  evicting  the  illegal  establishments  adjoining  Metropolitan Sessions Judge Bhaban and also nearby places, by the same memo, it was  further  requested  to  disconnect  the  WASA  Line,  Electricity Connection etc. Therefore, respondent No. 8 by a letter dated 01-09-2014 (Annexure-H) requested the petitioner to remove all materials within 05- 09-2014,  failing  which  Authority  will  take  the  initiative  to  remove  the establishment along with all materials.

Being  aggrieved  petitioner  brought  this  application  before  this Court and obtained the present Rule and order of stay.

It is pertinent to note that this is a long pending Rule; the Hon’ble Chief Justice has sent this matter to this Court for disposal, and pursuant to the order dated 01-07-2024, this matter has been fixed for hearing.

Mr. J.K. Paul, the learned Advocate for the petitioner submits that administrative control of the Dhaka District Court premises including all the establishments was vested upon respondent No. 5 who subsequently by a letter dated 30-08-2012 transferred the administrative control of the Metropolitan Sessions Judge Building to the Metropolitan Sessions Judge for proper management and handed over the same. According to him beyond the administration of the Metropolitan Session Judge Building, the Joint  Metropolitan  Sessions  Judge  has  no  authority  to  issue  such  a request  letter  (Annexure-E)  thereby,  taking  the  initiative  to  evict  the petitioner. 

By the submission he states an inquiry committee was constituted by  the  three  judges  who  after  inquiry  made  recommendations  for  its renewal, thus the eviction notice by the impugned order is illegal.

He also brings notice that Nazir of Dhaka District Court made an inquiry as per the instruction of Respondent No.5. Report of the Nazir clearly states that canteen namely Mitali canteen is running on payment of all the utility charges against the legal utility line and has legal papers, Therefore, it is clear that the impugned memo has issued without lawful authority and the same is of no legal effect. 

Mr. Md. Hafizur Rahman, the learned AAG brought to notice that this particular restaurant namely Mitali Canteen situated on the premises of Dhaka Judge Court area beside building No. 6. He claims according to the report of the police, location of the restaurant is not suitable. The restaurant is used as a meeting point for criminals, any time they can create any violence, thus it becoming a threat for the persons who are performing as a judicial officer of that Court and or the persons who are working as other officials and using the area in particular. The report shows for the safety/ security of the persons and to create the proper judicial working environment the Mitali Canteen has to be removed. He also brought notice that the Hon’ble Chief Justice of Bangladesh also expressed his concern, and it has been reflected in a letter dated 23-03- 2017 and 12-10-2023 issued under the signature of Register, High Court Division. However, for our better understanding relevant part of the letter dated 12-10-2023 is reproduceding herein below:

“…

2z ®c−nl 42 ¢V ®cJu¡e£ J 25 ¢V ®g±Sc¡l£ ®Q±¢L Bc¡mapj§q nql q−a c§lhaÑ£ Ef−Sm¡ fkÑ¡−u Ah¢ÙÛa Hhw ®Q±¢L Bc¡mapj§−ql ¢hQ¡lLNZ A¢dL¡wnC ®Q±¢L Bc¡mapj§−ql QaÄ−l plL¡l£ h¡pihe AhÙÛ¡e L−lez ®Q±¢L Bc¡mapj§−q J Eš² Bc¡mapj§−ql QaÄ−l plL¡l£ h¡pih−e ®L¡−e¡ ¢el¡fš¡l hÉhÙÛ¡ ®eCz Na 26 H¢fËm 2023 ¢MË| a¡¢l−M nl£uaf¤−l pcl Ef−Sm¡l ¢QL¢¾c ®Q±¢Ll ®SÉù pqL¡l£ S−Sl plL¡¢l h¡pih−e c§hѪšl¡ q¡jm¡ L−l, k¡ ¢f˾V, C−mVÊ¢eL ¢j¢Xu¡pq S¡a£u f¢œL¡…−m¡−a fËQ¡¢la q−u−R (pwk¤¢š²-2)z eîC−ul cn−L I plL¡¢l h¡pih−e HL ¢hQ¡lL−L …¢m L−l qaÉ¡ Ll¡ q−u¢Rmz h¢ZÑa ®fËr¡f−V AdÙ¹e pLm ®cJu¡e£ J ®g±Sc¡l£ ®Q±¢L Bc¡mapj§−q LjÑla ¢hQ¡lL Hhw ay¡−cl HSm¡p J h¡pih−el p¡¢hÑL ¢el¡fš¡ ¢e¢÷Q Ll¡ BhnÉLz”

In that respect, he also directed the law enforcement agency to take  appropriate  initiative  for  the  safety  and  security  of  the  Judicial Officers all over the Country.

Respondent by a letter dated 27.06.2024 requested Metropolitan Sessions  Judge  and  expressed  their  concern  and  requested  to  take initiative to stop the operation of the canteen, the relevant part of the said

letter is reproducing below:

“…

EfÑk§š² ¢ho−u Bfe¡l pcu AhN¢al SeÉ S¡e¡−e¡ k¡−µR ®k, SS ®L¡VÑ Hm¡L¡u ÙÛ¡¢fa AÙÛ¡u£ LÉ¡¢¾VeM¡e¡ ¢hQ¡lL¡−kÑ q¡¢Sl Ll¡ Afl¡d£−cl SeÉ AaÉ¿¹ Ty¤¢Lf§ZÑz LÉ¡¢¾V−e A−eL ®m¡LS−el pj¡Na qJu¡u ¢hQ¡l¡d£e A¢ik¤š²−cl ¢fËSe¡l iÉ¡e ®b−L JW¡-e¡j¡ Ll¡−e¡l pju SVm¡l pª¢ø quz LÉ¡¢¾V−e BnËu ¢e−u AeÉ¡eÉ h¢ql¡Na Afl¡d£l¡ ¢hQ¡l¡d£e A¢ik¤š²−cl ¢R¢e−u ®eJu¡ h¡ f ¢m−u k¡Ju¡l hÉ¡f¡−l pq¡ua¡

Ll−a f¡−lz a¡R¡s¡ ®k−L¡−e¡ AfË£¢aLl OVe¡ OV¡−a f¡−lz H−qe f¢l¢ÙÛ¢a−a LÉ¡¢¾VeM¡e¡ Q¡m¤ l¡M¡ pj£Q£e q−h e¡z LÉ¡¢¾VeM¡e¡l hÉ¡f¡−l hÉhÙÛ¡ NËq−Zl SeÉ HpBC ®j¡x p¡−cL¥m Cpm¡j, Ce-Q¡SÑ, SS ®L¡VÑ q¡SaM¡e¡, fË¢p¢LEne ¢hi¡N, Y¡L¡ ®j−VÊ¡f¢mVe f¤¢mn, Y¡L¡ HL¢V fË¢a−hce c¡¢Mm L−l−Rez a¡l ühÉ¡MÉ¡¢ua fÊ¢a−hceM¡e¡ AhN¢al SeÉ Hacp−‰ ®fËlZ Ll¡ q−m¡z”

From the combined reading of the above letters along with the impugned memo, it appears that the canteen in question is threatened and disturbing elements for the Judicial officers, including other people, and as a judicial workplace.

 Respondent  submits  that  the  memo  (Annexure-H)  has  been issued relying upon the memo Annexure-E, the content of the memo clearly states that the place where the Mitali Canteen is situated is very sensitive,  the  existence  of  such  canteen  is  not  suitable  as  well  as threatened  for  the  people  who  involved  with  judicial  work.  Law enforcement agencies are facing difficulties, to ensure the safety and security of judicial officers including people at large, the place has to be vacant. Thus the canteen has to be removed for the welfare of the people at large.

By way of his submission respondent brought notice to this Court that on 09.03.2011 last allotment was given and it was valid for the year i.e. till 31-12-2011. He claims that the lease period has expired long before,  and  no  extension  was  made  after  the  expiry  of  the  tenure allotment has been canceled. Now the petitioner is an unlawful occupant, and being an unlawful occupant petitioner cannot challenge the illegality of the impugned memo.

We have perused the petition and considered the submissions made by the parties.

It has claimed that Dhaka District Judgeship Ministerial Karmachari Kalyan Samity (in short Samity) filed this writ petition being represented by its Secretary General. The affidavit has been sworn in by one Mr. Humayun  Kabir  as  he  has  been  authorized  by  Md.  Golam  Mustafa, General Secretary of the Samity. Mr. J. K. Paul the learned Advocate in his submission states Mr. Golam Mustafa being a General Secretary gave the letter of authority to Mr. Humayun Kabir to file this case. But, in support of his submission, no resolution or document was brought to this Court. He also failed to bring any Memorandum of Understanding, Article of Association, or any constitution of the Samity, by which the General Secretary of the samity can delegate his power to file this case or swear affidavit through the letter of authority. There is no evidence that this samity was empowered and gave authority to Golam Mustafa to give power to Mr. Humayun Kabir to file this case in the name of the Samity.

It is pertinent to state that in the midst of the hearing, one Md. Abul Kalam Azad claiming himself as the present General Secretary of the Samity applied to substitute his name instead of the petitioner. However, in support of his application, he did not produce any such document shering  that  members  of  the  samity  authorized  him  to  represent  the samity. Thus, there is no scope to allow such application. Accordingly, the application is rejected.

However, it transpired to this Court that according to the letter dated 18-08-2014 (Annexure-E) respondent No. 8 issued a letter dated 09-09-2014 (Annexure-H). Thereby fixed the time and date to evict the petitioner. But, due to the interim order of this Court, the petitioners' canteen was not removed, thus, after elapsed of time the force of the impugned memo has been redundant. 

It transpired that the petitioner in the name of the Samity obtained a  lease/allotment  of  space  from  the  District  Judge  Administration  for restaurant business. The space is located at the northern side of the southeast gate of the large Courtyard and after the gate at the south side of  the  Metropolitan  Session  Court  Building  for  running  a  restaurant business. The last allotment was granted by a letter dated 09-03-2011, by which allotment of the lease has been given for a year; the lease was valid for one year i.e., till 31-12-2011. The allotment letter in clear terms states that the tenure of the lease will be canceled automatically after the expiry of the period of one year. After the expiry of such tenure, no application  for  a  fresh  lease  or  allotment  was  made  in  favor  of  the petitioner. Moreover, the allotment letter clearly states after the expiry of the  tenure  mentioned  in  the  allotment  letter  will  be  cancelled automatically.

Indeed,  on  perusal  of  the  record,  it  appears  that  lastly  it  was allotted on 09.03.2011 for one year that period has expired long before. Thereafter, no allotment application was made, thus, after the expiry of one one-year tenure, on 31-12-2011 by operation of the allotment letter lease  was  canceled.  Thus,  the  question  of  possession  of  immovable property and paying rent will not constitute a lease. The petitioner obtains the right to use the property for a certain period. After the expiry of such period lessor respondent No. 5 has the authority to deal with the property and took possession of it. Thus, at this juncture, after the expiry of the tenure, the petitioner is an unlawful occupant; he possesses the premises unlawfully. The petitioner being an unlawful occupant cannot agitate his grievances and occupy the space in the name of lessee.

In light of the above, we are of the view, no merit and force in the submissions made by the learned Advocate for the petitioner.

 Accordingly, the Rule is discharged.

The interim order granted at the time of issuance of the Ruel is hereby recalled and vacated.

There will be no order as to cost.

Communicate the order. 

Md. Riaz Uddin Khan, J:

I agree.