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Person wanted in criminal case can file writ-petition too

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12th-Aug-2017       
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Appellate Division (Civil)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Government of Bangladesh, represented by the Secretary, Ministry of  the Local Government, Rural Development and Co-operative, Bangladesh Dhaka and others Petitioners
vs
Mosaddek Hossain
(Md) and others-Respondents
Judgment
March 5th, 2017
 Local Government (City Corp.) Act (LX of 2009)
Sections 9 and 13
There is no bar in entertaining the writ- petition and deciding the case on merit, even though, the writ-petitioner may be a person wanted in a criminal case. Because at the time of issuance of Rule Nisi, he was not a fugitive and the subsequent development of the criminal case or any other criminal proceeding would not be a bar to entertaining his case in writ jurisdiction unless it is found that he has become disqualified to hold the office as a specified in Section 9 or 13 of Ain. . ..... (17)
Mahbubey Alam, Attorney-General, instructed by Haridas Paul, Advocate-on-Record-For the Petitioners (In CP No. 3618/16).
AM Aminuddin, Senior Advocate, instructed by M Ashrafuzzaman Khan, Advocate-on-Record-For the Petitioner (In CP No. 3604/6).
AF Hasan Arif, Senior Advocate (with Abdul Baset Mazumder, Senior Advocate and BM Elias, Advocate) instructed by Yed Mahbubur Ruhman, Advocate-on-Record-For the Respondents (In both the case).
Judgment
Syed Mahmud Hossain J : These civil petitions for leave to appeal are directed against the judgment and order dated 10-3-2016 passed by the High Court Division in Writ Petition No.5512 of 2015 making the Rule absolute in part with direction.
2. Both the civil petitions for leave to appeal involving similar questions of laws and facts having been heard together are now disposed of by this common judgment.
3. The facts, giving rise to these civil petitions for leave to appeal, in a nutshell, are:
Writ Petitioner, Mohammad Mosaddck Hossain has stated in his writ petition that in the election held on 15-6-2013, he was elected the Mayor of Rajshahi City Corporation and accordingly, the Election Commission by gazette notification dated 24-6-2013 made a declaration to that effect. He took oath and took over charge on 18-9-2013. While discharging his functions as Mayor, the LGRD Ministry issued the impugned memo dated 7-5-2013 suspending the writ petitioner. It is stated in the said memo, that in the 4(four) criminal cases mentioned therein, chargesheets have been submitted against him and the same have been accepted by the concerned Court of Magistrate and consequently, the Government, in exercise of the power conferred by Section 12(1) of the Local Government (City Corporation) Ain, 2009 (shortly, Ain, 2009) suspended the writ-petitioner from post of Mayor.
4. Writ-petitioner claimed that Section 12 (1) of the Ain, 2009 has conferred an unfettered power on the Government to suspend, an elected Mayor or a Councilor. The previous law being the Rajshahi City Corporation Ain, 1987 did not contain any such provision. This new provision does not require the Government to form an objective opinion for the purpose of taking a decision on suspension of an elected Mayor or Councilor. As a result, the Government can exercise this power arbitrarily and with a mala fide intention. This provision is violative of the fundamental rights of the writ-petitioner and also inconsistent with the various provisions of the Constitution, particularly with Articles 27, 59 and 60.
S. Writ-petitioner further claimed that in issuing the impugned suspension order, the Government functionaries have not followed the procedure for removal of a Mayor as provided by Section 13 of the Ain, 2009 nor did they issue any show cause notice allowing the writ-petitioner to explain his position with regard to the said chargesheets.
6. Being aggrieved by and dissatisfied with Section 12(1) of the Local Government (City Corporation) Ain, 2009 so far it relates to the expression ÒA_ev Zvnvi weiæ‡× †dŠR`vix gvgjvi Awf‡hvMcÎ Av`vjZ KZ…©K M„nxZ nBqv‡QÓ and the Memo dated 7-5-2015 issued by the Ministry of Local government Rural, Development and Cooperatives (shortly LGRD Ministry) suspending the writ-petitioner from the office of Mayor of Rajshahi City Corporation, the writ-petitioner obtained Rule Nisi in Writ Petition No. 5512 of 2015.
7. Writ-respondent No. l being the Government of Bangladesh, represented by the Secretary, Ministry of LGRD, in an affidavit-in-opposition, has not denied the standing of the writ-petitioner as the elected Mayor of the City Corporation and also the fact of his suspension by the impugned memo. However writ-respondent No.1 has stated that, apart from the 4(four) criminal cases mentioned in the impugned memo, other criminal cases have been instituted against the writ- petitioner and that he is a fugitive from justice in those other cases. Moreover, after filing of this writ petition, the learned Magistrate has, by order dated 7-3-2016 in MGR Case No.477 of 2012, cancelled the bail earlier granted to the writ-petitioner who being a fugitive from justice, cannot seek any remedy in this Writ Petition. Section 12(1) of the Ain, 2009 does not require the formation of any opinion on the part of the Government and therefore the Government had no other option than suspending the writ-petitioner in view of the fact that the chargesheets have been submitted against him in those 4 criminal cases and the same have been accepted, by the competent Court.
8. The case of writ-respondent No.7: In line with the averments made by writ-respondent No.1, this writ-respondent, being a Councilor of the City Corporation, has reiterated the fact of pendency of several criminal cases including the 4 cases mentioned in the suspension order, the acceptance of the chargesheets, by the Court in the those 4(four) cases and the fact of cancellation of bail of the writ-petitioner in MGR Case No. 477 of 2012. He contends that he is the elected Councilor of Ward No. 20 of the City Corporation and that the Government, after suspending the Major, lawfully issued the notification dated 31-5-2015 authorizing him to deal with the financial and administrative matters of the City Corporation. Accordingly, he has taken over charge on 2-6-2015. Thereafter a special general meeting of the Councilors of the City Corporation was held on 7-6-2015 and "the majority of the Councilors of the Corporation present at the meeting unanimously decided to hand over all the executive power of Mayor to him".
9. The learned Judges of the High Court Division upon hearing the Rule by the judgment and order dated 10-3-2016 made the Rule absolute in part with direction.
10. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the writ-respondents have filed these civil petitions for leave to appeal before this Division.
11. Mr. Mahbubey Alam, learned Attorney-General, appearing on behalf of the leave-petitioners in Civil Petition No.3618 of 2016, submits that Section 12(1) of the Local Government (City Corporation) Ain, 2009 requires the Government to suspend an elected Mayor or Councilors of the City Corporation where a chargesheet has been submitted by the police in a criminal case and that the chargesheet has been accepted by the Court and that the said situation is admittedly existing in relation to the writ-petitioner and therefore, the Government has no other option than suspending him from the office of the Mayor and, as such, the impugned judgment is liable to be set aside. He further submits that in 4 cases mentioned in the impugned suspension order, there are allegations that the writ-petitioner committed grave offences under various sections of the Penal Code and the Special Powers Act, 1974 and therefore, from the point of public interest it is not desirable to run the affairs of City Corporation as Mayor and, as such, the impugned judgment and order is liable to be set aside.
12. AM Aminuddin, learned Senior Advocate, appearing on behalf of the leave-petitioner in Civil Petition No. 3604 of 2016, adopted the submissions put forwarded by the learned Attorney-General.
13. Mr. AF Hasan Ariff and Mr. Abdul Baset Mazumder, learned Senior Advocates and BM Elias learned Advocate, appearing on behalf of the writ-petitioner-respondent of both the civil petitions, support the impugned judgment delivered by the High Court Division.
14. We have considered the submissions of the learned Attorney-General for the leave-petitioners of Civil Petition No. 3618 of 2016, learned Senior Advocate for the leave-petitioner of Civil Petition No. 3604 of 2016 and Mr. A F Hasan Ariff and Abdul Baset Mazumder, learned Senior Advocates for the writ-petitioner respondent of both the petitions, perused the impugned judgment and the materials on record.
15. The salient findings of the High Court Division, in brief, are as follows:
The provision of suspension of an elected Mayor or Councilors of the City Corporation as contained in section 12(1) of the Ain, 2009 is generally consistent with, or intra vires the Constitution. In other words, Section 12(1) is not generally ultra vires the Constitution.
16. In the instant case, the arbitrary exercise in discretionary power is apparent from the certified copies of the chargesheets submitted in various police cases. The same charge-sheets were submitted against the writ-petitioner being the elected Mayor and also against a number of Ward Councilors of the same City Corporation and the same have been accepted by the Court. But the Government has opted not to suspend those Councilors. Such an action against the writ-petitioner is no doubt discriminatory and arbitary.
17. There is no bar in entertaining the writ-petition and deciding the case on merit, even though, the writ-petitioner may be a person wanted in a criminal case by virtue of the order dated 7-3-2016 passed in GR No.4477 of 2012. Because at the time of issuance of Rule Nisi, he was not a fugitive and the subsequent development of the criminal case or any other criminal proceeding would not be a bar to entertaining his case in writ jurisdiction unless it is found that he has become disqualified to hold the office as a specified in Section 9 or 13 of Ain, 2009.
18. The aforesaid findings of the High Court Division having been made on proper appreciation of law and fact do not call for interference.
19. The learned Attorney-General has drawn our attention that the High Court Division directed writ-respondent No.1 for taking necessary steps for amending Section 12(1) of the Ain, 2009. He then submits that one organ of the State cannot give such direction to another organ of the State. The direction is quoted below:
"Respondent No.1 shall take necessary steps for bringing to the notice of the concerned authority of the Government and the Parliament that section 12(1) of ¯’vqx miKvi (wmwU K‡c©v‡ikb) AvBb, 2009, should be amended for incorporating (1) necessary provisions about guidelines for formation of an objective opinion, so that the suspending authority may take a fair, reasonable and equitable decision on suspension of an elected Mayor or Councilor of a City Corporation."
20. The above direction is a pious wish of the Court. The Government and the Parliament may consider amending Section 12(1) of the Ain, 2012. Therefore, the direction given by the High Court Division is accordingly modified.
In view of the discussion made above, both the civil petitions are dismissed with the modification of the direction given by the High Court Division.

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