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The government servants cannot act beyond the scope of law

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31st-Dec-2016       
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High Court Division :
(Special Original Jurisdiction)
Obaidul Hassan J
SH Md Nurul
Huda Jaigirdar J
Machimpur Mathsojibi Samabaya Samity Ltd ....
…………….Petitioner
vs
 Government of Bangladesh represented by the Secretary, Ministry of  Land, Dhaka and others ............... Respondents

Judgment
November 25th, 2015
Constitution of Bangladesh, 1972
Article 102(2)
The government servants are recruited in service of the Republic to serve the country in accordance with law with sincerity, honesty and integrity or ensuring citizens wellbeing. Their conduct and action must be beneficial to the general people of the country. There should not be any reflection in their action offering perception that they have favoured someone beyond the scope of law as because he is holding a high position in the society or he is a person close to mighty man. . ..... (9)
AKM Ali with AB Showkat Ali, Advocates-For the Petitioner.
Biswojit Roy, Deputy Attorney-General with Arobinda Kumar Roy, Assistant Attorney-General and Abdur Rakib, Assistant Attorney-General-For the Respondent  No. 2.
Judgment
Obaidul Hassan J : This Rule Nisi was issued calling upon the respondents to show cause as to why the memo bearing No. 31.00.0000.050,68,015.15-462 dated 30-7-2015 issued by the respondent No. 1 rejecting the petitioner's application for getting lease thereof under development scheme (as evident from Annexure-E to the writ petition) and thereby deciding to lease out the Bondehbari Group Fishery on the basis of a recommendation allegedly under influence of the local MP as contained in memo bearing No. 05.60. 900.008. 12.007.15.1100 dated 7-4-2015 issued by the respondent No.2 (as evident from Annexure D(4) to the writ petition) should not be declared to have been made without lawful authority and is of no legal effect.
2. The fact relevant for the disposal of the Rule, in short, is that the fishery namely Bondehori Group Fishery situated within Upazila Doarabazar, District-Sunamgonj is a closed fishery which was free to lease out with the effect from 1422 BS. The petitioner along with two others separately applied for granting lease of the said fishery under development scheme in their favour for 6 years. The petitioner offered 212% higher rent than the lease money of the previous term and accordingly furnished 20% security deposit against the rent offered amounting to Taka 2,67,0007 along with his application seeking lease in his favour and also submitted all necessary documents required as per Rules. Receiving those applications the respondent No.1 called for a report about the abilities and activities of the petitioner's Samity and other participants as well. At the time of inquiry on the application of other participants, petitioner made a representation against Baitakhali Mathsojibi Samabaya Samity Ltd. for registering non-fishermen as the member of the Samity and on their allegation the District Jalmohal Management Committee in its first meeting dated 16-3-2015 decided for further inquiry and directed the concerned authority to submit a report in this regard within 7(seven) days. Thereafter, the Revenue Deputy Collector issued a memo on 22-3-2015 for conducting inquiry and accordingly the District Fishery Officer on inquiry submitted a report on 25-3-2015 with a finding that 13 members of that Samity are non-fishermen stating their names therein. After calling for report with specific opinion from the District Committee about the abilities and activities of the petitioner's Samity and others for leasing out the same under development scheme, all of a sudden on the basis of an opinion of the concerned Member of the Parliament the respondents decided the fishery would be leased out by the District Committee and accordingly submitted a report without giving any specific opinion and without discussing petitioner's ability and activities. Thereafter, the respondent No.2 by issuing a memo dated 7-4-2015 forwarded the resolution of the District Committee without giving any specific opinion. Thereafter, the petitioner served a notice demanding justice requesting the respondents to cancel the impugned memo with a request to grant him lease as highest offerer under development scheme as the 1st highest offerer Boitakhali Mathsojibi Samabaya Samity Ltd. was disqualified to get lease on a ground of registering non-fishermen as members of the Samity, but no compliance has yet been received.
3. Dr AKM Ali, the learned advocate appearing along with Mr AB Showkat Ali the learned advocate on behalf of the petitioner submitted that as per Jalmohal Nitimala, 2009 there are two leasing processes, one is from the District Jalmohal Management Committee for three years at the fixed rate of 5% enhanced over the previous three years average rate and another under development scheme for six years, at least 25% enhanced rate over the previous year's lease money by the Ministry of Land. Development scheme always gets priority for the interest of the government revenue and for development work in the fishery, but the respondent No.1 by issuing memo dated 30-7-2015 rejected the proposal of the lease under development scheme on the basis of the report of the District Jalmohal Management Committee at the advice of one Member of Parliament. He further submitted that the petitioner offered Taka 13,32,924 and the Boitakhali Mathsojibi Samabaya Samity Ltd. who became disqualified to get lease offered Taka 13,67,100. He also submitted that though, the offer of the Baitakhali Samity is not considered, for the interest of the government revenue the petitioner was interested to take lease of the fishery even at the rate of Taka 13,67,100 but the respondents did not consider the prayer of the petitioner. He further submits that the development scheme always gets priority, but the Deputy Commissioner without considering the government's interest totally disregarded those vital points and on· a very vague ground for the interest of the some vested group decided to lease out the fishery in question through open auction instead of leasing the same under development scheme on the basis of Demy Official (DO) letter issued by the local Member of Parliament which is a clear violation of the provision laid down in the Nitimala, 2009. He further submits that as per Nitimala the leasing process under development scheme is more transparent and acceptable than the leasing process by the Deputy Commissioner by open auction. He also submits that since on the basis of DO letter given by the local Member of Parliament District Jalmohal Management Committee has decided to lease out the said fishery through an open auction, the petitioner's Samity will not be able to participate in that auction, because as per Nitimala the riparian fishermen are the only persons who can take participation in the open auction and, as such, the petitioner will have to face loss and injury as they have already deposited huge amount of money and the government would also be deprived of getting significant revenue as they offered Taka 13,67,200 as lease money. He further submits that the District Jalmohal Management Committee without giving any specific opinion sent a report to the government, thus the Ministry of Land cannot take any decision in respect of leasing out the fishery in open auction which is a clear violation of Nitimala, 2009.
4. Mr Biswojit Roy, the learned Deputy Attorney-General appearing on behalf of the respondents by filling an affidavit in opposition denied all the material allegation brought against the respondents and contended inter alia that from the memo No. 50 dated 24-2-2015, it is evident that three members inquiry team led by Upazila Krishi Officer had found all the members of the Baitakhali Mathsojibi Samabaya Samity Ltd. as real fishermen. Therefore, members of the District Jalmohal Management Committee decided not to investigate the matter further and subsequently the said committee decided to send a report to the Ministry of Land describing the opinion of the Upazila Jalmohal Management Committee together with the advice of the local Member of Parliament. He further submitted that as per Nitimala, 2009 the Ministry of Land is the final authority in effective decision for leasing out any fishery of Bangladesh. So the decision of the Ministry of Land as to the matter of leasing process of the case fishery is legal and has been taken rightly. He further submitted that the Ministry of Land has rightly and legally decided to lease out the case fishery through open auction. The petitioner is not entitled to get any relief from this Court. He also submitted that District Jalmohal Management Committee gave opinion as per Nitimala, 2009 and the Ministry of Land has rightly and legally decided to lease out the said fishery through general auction. He also submitted that the Hon'ble Member of Parliament has a status in the District Jalmohal Management Committee. As per Nitimala he is an advisor, so the advice of the local Hon'ble Member of Parliament is legal and the District Jalmohal Management Committee along with the report of the Upazila Jalmohal Management Committee and the advice of the Hon'ble Member of Parliament sent its recommendation regarding the leasing process of the case fishery.
5. We have gone through the writ petition, the affidavit-in-opposition and the annexures thereto and considered the submissions advanced by the learned advocates for both the sides. It appears that the District Jalmohal Committee decided to lease out the fishery in question under the development scheme and accordingly they invited application in response to which the petitioner and two other Samities participated in the process. One Samity namely Boithakhali Samity initially was found disqualified and the petitioner's Samity became the highest offerer and they offered 212% above of the previous year's rent but before that the District Jalmohal Management Committee inquired the matter regarding registering non-fishermen in Boithakhali Samity and they asked for a report from the concerned officer, but in the meantime the Member of Parliament of Sunamgonj-5 gave a DO letter to the respondents requesting them to lease out the fishery through open auction as per Nitimala and after receiving the said DO letter the respondent No.2, the Deputy Commissioner, Sunamgonj by issuing a letter to the respondent No.1 said that:
“উক্ত তদন্তে এবং উপজেলা কমিটির সভার কার্যবিবরণীতে উন্নয়ন প্রকল্প দাখিলকারী তিনটি সমিতির সকল সদস্যই মৎস্য মর্মে মতামত প্রদান করা হয়েছে। ফলে পুনরায় বৈঠখালী বা কোন সমিতির কোন প্রকার আপত্তি বিবেচনা করার সুযোগ নেই মর্মে সভার সদস্যগণ অভিমত ব্যক্ত করেন। ৩। বিস্তারিত আলোচনান্তে উন্নয়ন প্রকল্পে ইজার গ্রহণের আবেদন সমূহের বিষয়ে, উপজেলা জলমহাল ব্যব¯'াপনা কমিটির মতামত এবং সংশ্লিষ্ট মাননীয় সংসদ সদস্যের মতামতের বিষয়ে বিস্তারিত উল্লেখ পূর্বক ভূমি মন্ত্রণালয়ে প্রতিবেদন প্রেরণ করার জন্য সভায় সর্বসম্মতি সিদ্ধান্ত গ"হীত হয়।”
Thereafter, on 13-7-2015 the Ministry of Land taking decision regarding the process of leasing out the fishery in question issued a letter addressing the respondent No.2, the Deputy Commissioner, Sunamgonj. The letter stated that:
“সিদ্ধান্ত ৩(৩২) (ক) জেলা জলমহাল ব্যব¯'াপনা কমিটির সুপারিশ বিবেচনায় জলমহালটি উন্নয়ন প্রকল্পে গ্রহণ না করে জেলা হতে ইজারা প্রদানের সিদ্ধান্ত গ"হীত হলো। তবে ইজারা মূল্য ১৩,৬৭,১০০ টাকার কম হবে না।”
6. So from these two reports contained in Annexure-D(l) and E it appears that the government has taken a decision to lease out the fishery through an open auction and they fixed the lease rate of the fishery not below Taka 13,67,100 which was offered by the petitioner. It appears to be very fair that the government has fixed the lease rate. The petitioner's apprehension is that since as per Nitimala, in an open auction, only the riparian fishermen can participate and since they are not riparian fishermen they will be precluded from participating in the auction bid. They have also expressed their apprehension that the government could not be able lo lease out the fishery at this rate because it is 212% above of the rate of the previous year, the local fishermen society cannot take this fishery at such a high rate. The petitioner also apprehended that the decision taken by the Ministry is also influenced by the local Member of Parliament and thus there is a chance to give the fishery under lease in favour of a particular Samity namely Sharifpur Matshajibi Samobaya Samity because the Member of Parliament after giving the previous DO letter, sent another DO letter to the respondent No.2 on 18-10-2015 requesting him to lease out the said fishery in favour of Sharifpur Matshajibi Samobaya Samity which is evident from Annexure-K(l).
7. The previous DO letter issued by the Member of Parliament was an innocent one. The position of the local Member of Parliament is an advisor of the District Jalmohal Management Committee as per Nitimala, 2009 and thus he can advice the government for the betterment of the local fishermen and the fisheries. If the Member of Parliament in exercise of his advisory power as contained in Nitimala, 2009 advises the government to lease out the fishery by open auction or to take any step justifying the betterment of the fishery and fishermen of his area it is acceptable but when the Member of Parliament gives a DO letter to the concerned be accepted to be fair and justified by the servants of the Republic.
8. From the language it is very clear that DO letter is not an official communication made by any machinery of the Republic. The purpose of this letter was to attain official objective through making personal relation or influence, on the other hand by an official letter issued under approved authority various official interests are served and looked into. The DO letter by nature is mixed i.e. combination of personal and official. Whereas the official letter is impersonal in nature. The official letter is always on the basis of the subject matter, it can be classified as urgent, secret and general, but the DO letter when issued not by an official of the Republic can never be treated as official letter.
9. The government servants are recruited in service of the republic to serve the country in accordance with law with sincerity, honesty and integrity or ensuring citizens' wellbeing. Their conduct and action must be beneficial to the general people of the country. There should not be any reflection in their action offering perception that they have favoured someone beyond the scope of law as because he is holding a high position in the society or he is a person close to mighty man.
10. In this case, the local Member of Parliament has issued the 2nd DO letter not for the purpose of public interest rather it was for the interest of a particular person or group of persons. We are of the view that the local Members of Parliament can exercise their power as the advisor of the District Jalmohal Committee, but when they issue DO letter, they should remain cautions enough to see whether it will protect the interest of the local fishermen at large. The members of Parliament are public representatives. They are elected by the people of his constituency. Before being elected the Member of Parliament or any public representative usually contests the election being nominated by a particular party or being supported by a group of people. But after being elected, the Member of Parliament is no doubt becomes the elected representative of all the citizens' of his constituency. So their action should not fan the flathe of favouring any particular Samity or any particular person. The DO letter issued by the Member of Parliament influencing or asking the concerned authorized government machinery to favour a particular person in getting the fishery in question leased out was not connected to 'public good' and it was rather something like invasion to rights of others who intended to participate the auction process.
11. However, the respondents have taken decision to lease out the fishery in open auction. Though the petitioner is not a Samity or riparian fishermen we are of the view that the petitioner's Samity and other two Samities who desired to get the fishery to be leased out in their favour under the development scheme should be allowed to participate in the open auction. The decision taken by the government is justified. We do not find any infirmity malice in their decision. On the other hand, the petitioner just participated in the development scheme and thus he did not accrue any right in his favour and we do not find any illegality committed by the respondents in taking decision to lease out the said fishery in auction fixing a minimum rate. So we are of the view not to interfere with the impugned decision of the respondents.
12. In the result the Rule is discharged without any order as to cost. However, we direct the respondents to allow all the Samities namely Rainagar Mathshajibi Samobaya Samity Ltd., Boithakhali Matshajibi Samobaya Samity Ltd. and Machhimpur Matshajibi Samobaya Samity Ltd. who desired to get the fishery leased in their favour them to participate in the open auction of the said fishery. The respondents are hereby directed to issue a fresh auction notice giving chance to the aforesaid fishermen societies namely Rainagar Mathshajibi Samobaya Samity Ltd. Boithakhali Matshajibi Samobaya Samity Ltd. and Machhimpur Matshajibi Samobaya Samity Ltd. to participate in the auction process cancelling the previous auction notice dated 20-10-2015.
Let a copy of this judgment be communicated at once.

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