September 19, 2020, 12:23 am

Natural Justice

Natural Justice Even Where Provision For Show Cause Notice

Natural Justice Even where provision for show cause notice and opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred, Bench constituted with M Reza Chowdhury, CJ. Md. Fazlul Karim and As Ahammed, JJ. (Judgment delivered by Md. Fazlul Karim, J.), Civil Petition for Leave to appeal No. 218 of 2002 == *Chairman Board of Intermediate and Secondary Education, Jessore and others vs. Md. Amir Hossain and another, 56 DLR (AD) 24.

ACT: PERFORMANCE: TIME: COUNT: PROCEDURE: PROVISION:

Exclusion of time taken by Commissioner__ Where a commission is issued for any purpose at any stage of a suit, the time taken by the Commissioner for returning the Commission after execution or for submitting the report, as the case may be, Shall be excluded from the time fixed for doing anything or performing any act at that stage. ===  *Code of Civil Procedure (V of 1908), Order XXVI, Rule 22.

“ What is an Act of God as natural Justice ” was always a common law exception. It was a metaphorical phrase (like “fate”) with a religious origin used to describe those events which involved no human agency and which it was not realistically possible for a human to guard against: To fulfill of natural justice the legal definition of an “Action of God as natural justice” has been given in the case of Nugent vs. Smith (1876) 1 CPD 423, where it has been held that a loss occasioned by an Act of God is a loss arising from and occasioned by the agency of nature which cannot be guarded against by the ordinary exertions of human skill and prudence so as to prevent its effect. An “Action of God” in order to make natural justice by our apex court was always a common law exception. It was a metaphorical phrase (like “fate”) to ensure natural justice with a religious origin used to describe those events which involved no human agency an which it was not realistically possible for a human to guard against. In the said case it was held that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and excessively, without human intervention, and that it could not have been prevented by an amount of foresight and pains and care reasonably to be expected from him. The decision in Nuyn vs. Snrith has been relied on in many cases over the years and was revisited in the case of 1 Transcu PLC Sstockport Metropolitan Borough Council, House of Lords [2004] 2ACI, page 14, para 59. (para 17). Shamim Hasnain J. Admirlty Suit No. 27 of 2005 == *HRC Shipping Ltd. vs.l MV X-Press Manasllu, MV X-Press Resolve and others, 58 DLR 185.

ACT: LIMITATION: APPLICATION: PRINCIPLE:

There is no doubt that the law of limitation operates equally for or against the private party and also on the Government. The court is to consider in the case of the later whether a Government department in question has acted bonafide or has been grossly negligence the Court should condone the delay disregarding the length of the delay, Limitation Act, 1908 (IX of 1908), Section 5 == *Iman Uddin Sheik and others vs. Deputy Commissioner (Rev.) Bagerhat, 47 DLR 329. Ref: Ata Ullah Milk vs. Custodian of Evacuees Property, 16 DLR (SC) 298; Province of East Pakistan vs. Abdul Hamid Darjee, 21 DLR 824; 1991 BLD 194; 6 BLD (AD) 180.

                Mr. TH Khan has referred to a decision in the case of Masjid Hanifa vs. Korban Shah, reported in PLD 1996 Lahore 314 for the proposition that mosjid being property of God no limitation operates against it and if somebody is in possession thereof he could not claim any right of ownership thereof how long he had lived therein, his possession would not matter therein. Mr. TH Khan has further referred to the decision reported in 19982 SCC 642 for the proposition that once a waqf it is always a waqf and the nature of the property is not extinguished by lapse of time. Mr. Khan has further submitted that a notice under section 64 of the Waqfs Ordinance is not controlled by any law of limitation or under Article 142 or Article 144 of the Limitation Act (para 16), Syed JR Mudassir Hussain, CJ and Md. Fazllul Karim and Amirul Kabir Chy JJ. == *Abdul Malek Sawdagar vs. Md. Md. Mahbubey Alam and others, 57 DLR (AD) 18.

ACTION: ADMISNITRATIVE : ACCEPTANCE: DETERMINATION:

There is other side of coin pursuant to the decision of the government for inviting fresh application for appointment as assistant Tahshilder canceling the result of the examination participated by the plaintiff a fresh advertisement in the daily Sangbad was published. The plaintiff mentioned the same as the cause of action for the suit. But it appears from Ext. F and application filed by the plaintiff dated 3-11-92 that pursuant to the fresh advertisement he himself submitted a fresh application offering his candidature for the post by accepting the decision of the authority who canceled the result of provious examination in view of allegation regarding the same. This fact negatives the alleged cause of action for the suit and hence the plaintiff loses his legs to stand, Amirul Kabir, J. == *Habibur Rahman (Md) vs. DC, Patualkhali and others, 51 DLR 70 = 19 BLD 34, paragraph 10.

ACTION: ADMINISTRATIVE: CHALLENGE: LOCUS STANDI: LOSS:

There is other side of coin pursuant to the decision of the government for inviting fresh application for appointment as assistant Tahshilder canceling the result of the examination participated by the plaintiff a fresh advertisement in the daily Sangbad was published. The plaintiff mentioned the same as the cause of action for the suit. But it appears from Ext. F and application filed by the plaintiff dated 3-11-92 that pursuant to the fresh advertisement he himself submitted a fresh application offering his candidature for the post by accepting the decision of the authority who canceled the result of provious examination in view of allegation regarding the same. This fact negatives the alleged cause of action for the suit and hence the plaintiff loses his legs to stand, Amirul Kabir, J. == *Habibur Rahman (Md) vs. DC, Patualkhali and others, 51 DLR 70 = 19 BLD 34, paragraph 10.

ACTION: ADMINISTRATIVE: CORRECTNESS: PRESUMPTION

Public document, original lost___ Presumption as to such document: It has been contended that when an original document is lost secondary evidence thereof is admissible an it shall be presumed to be correct as provided in section 74 of the Evidence Act: Held:This presumption I however rebuttable and the presumption is as to regularity of the official act and not as to the correctness of its contents, Evidence Act, 1872 (1 of 1872), Section 74 == *Rahimuddin Ahmed vs. Bengal Water Ways Ltd. and another, 31 DLR 28.

ACTION: ADMINISTRATIVE: LEGALITY: CHALLENGE: LOCUS STANDI: LOSS: DETERMINATION: CONSIDERATION:

There is other side of coin pursuant to the decision of the government for inviting fresh application for appointment as assistant Tahshilder canceling the result of the examination participated by the plaintiff a fresh advertisement in the daily

Sangbad was published. The plaintiff mentioned the same as the cause of action for the suit. But it appears from Ext. F and application filed by the plaintiff dated 3-11-92 that pursuant to the fresh advertisement he himself submitted a fresh application offering his candidature for the post by accepting the decision of the authority who canceled the result of provious examination in view of allegation regarding the same. This fact negatives the alleged cause of action for the suit and hence the plaintiff loses his legs to stand, Amirul Kabir, J. *Habibur Rahman (Md) vs. DC, Patualkhali and others, 51 DLR 70 = 19 BLD 34, paragraph 10.

ACTION: ADMINISTRATIVE: NATURAL JUSTICE: COMPLAIANCE: PRINCIPLE:

The principle of natural justice ought to have been complied with. Because principle of natural justice is also applicable in administrative matters as natural justice demands that before a person is proceeded against he should know the allegations against him and, as such, he should be given an opportunity of explaining his position in the matter == *Rafiqul Alam vs. Secretary, Ministry of Works, Government of the People’s Republic of Bangladesh and others, 49 DLR 456.

            Whether in administrative or in judicial matters the principle of natural justice, if it is not inconsistent with the provisions of the stature, must be strictly adhered to and complied with == *Mrs. Nujahan Begum vs. Bangladesh and others, 14 BLD 558. Ref: Ms.  Kamruzzaman vs. The Secretary, Ministry of Public Works and Urban Development, Government of Bangladesh, 29 DLR 125.

ACTION: ADMINISTRATIVE: PERFORMANCE: PROCEDURE: LEGALITY:

Where judicial or official act is shown to have been done, it is presumed to have been done rightly and regularly complying with necessary requirements, Evidence Act, 1872 (1 of 1872), Section 88 and necessary requirements, Evidence Act, 1872 (1 of 1872), Section 88 and 114(c) == *Akthar Hossain vs. Government of Bangladesh and others, 45 DLR 651 == 12 BLD 541.

Official act shall be initially presumed to have been done in due course of official business, Evidence Act, 1872 (1 of 1872), Section 114(e) == *M/s. Azmir Trasers vs. The Commissioner of Custom and others, 5 MLR (AD) 1.

ACTION: COURT: INITIATION: KNOWLEDGE: PRESENCE: EFFECT:

It is well settled that once a party receives an intimation of an action in a Court, it is for him to pursue it diligently and to keep himself in touch with the proceedings, either personally or through his Counsel, and the consequences flowing from his failure to keep pace with the developments must be borne by him: In the instant case, the defendant opposite party No. 2 Sher Mohammad admittedly receive summons, duly filed written statement in the suit and obtained a number of adjournments and, as such, it was incumbent upon them to pursue the proceedings of the suit with due diligence. It is evident from the impugned order that defendant opposite party No. 2 Sher Mohammad did not take any step in the suit since 12-6-88 and the impugned decree was passed on 39-9-89. Under such circumstances, he must bear the whole brunt of the ominous consequences that naturally flow from his failure to keep pace with the developments of the suit, unless the failure is lawfully condoned on convincing grounds but, unfortunately, for him nothing has been done in this regard to salvage him from the inevitable legal impediments. Gour Gopal Saha, J. == *Akbar Hossain Khan (Md) vs. Md. Awlad Hossain Khan and another, 49 DLR 561, para 10.

ACTION: COURT: PENDING: MEANING:

Pending Action: These words have been understood to mean pending suit. The Court misinterpreted and misunderstood that the meaning of ‘action’ is not confined to a suit or other legal proceeding in court or that the word will mean and include any action to be taken by the insurer after the claim is lodged by the insured. We would like to say in the same vein that the words ‘pending action’ have been understood in this sub-continent for well over 80 years as pending suit and we find no jurisprudential backing, no unfurling of a novel proposition of law and no impelling consideration of justice an fair play in the judgement of the High Court Division to disturb that understanding. The High Court Division clearly misinterpreted and misunderstood the words ‘pending’ action and we have no hesitation in disapproving of the same == *Sadharan Bima Corporation vs. Sanjib Kumar Das and

Another, 47 DLR (AD) 97 = 1 MLR (AD) 179. Ref: Roul Colinvaux in The Law if Insurance, 3rd Edition, 1970 at page 25; Halsbury’s Laws of England, 3rd Edition, Vol. 1, at page 2; AN Ghose vs. Reliance Insurance Company, AIR 1934 (Rabgoon) 15; Baroda Spinning and Weaving Co. Ltd. vs. Satynarayan Marine and Fire Insurance Co. Ltd. AIR 1914 (Bom) 225; Shree Hari Sankar Nandi Majumdar vs. sree Promode Chandra Roy Choudhury, 4 PLR (Dacca) 595; Honuman Box vs. Eagle Star and British Dominions Insurance Company Ltd. AIR 1924 (Cal) 186; G. Rainey vs. Burna fire and Marine Insurance Co. Ltd. AIR 1926 (Rangoon) 3; Rubi General Insurance Company vs. Bharat bank, AIR 1950 (EP) 352; Pearl Insurance Company vs. Atma Ram, AIR 1960 (Punjab) 236; Vulcan Insurance Co. Ltd. vs. Maharaj Singh, AIR 1976 (SC) 287; Aargodha Central Co-operative Bank Ltd. vs. Mew Hampshire Insurance Co. PLD 1982 (Karachi) 627; Ali Pipe Industries vs. The Universal Insurance Co. Ltd. PLD 1989 (Lah) 390; Pir Bakhsh vs. Chairman, allotment Committee PLD 1987 (SC) 145.

The word ‘Pending action’ means initiating a legal proceeding in Court within the mentioned period and its failure by the insured, forfeits his right to sue under the Policy == *Bangladesh General Insurance Co. Ltd. vs. Chalna Marine Products Co. Ltd,  51 DLR 357. Ref: Borada Spinning and Weaving Co. Ltd. vs. Satyanarayan Marine and Fire Insurance Co. Ltd. 1914 AIR Bombay 225; Girdharilal Honuman Bux vs. Eagle Star and British Dominions Insurance Co. Ltd. 1924 AIR (Cal) 186; Sree Hari Sankar Nandi Majumder vs. Sree Promode Chandra Roy Choudhury, 4 PLD (Dhaka) 595; and Sadharan Buma Corporation vs. Sanjib Kumar Das and another, 47 DLR (AD) 97 = 1 MLR (AD) 179.

The word ‘action’ is unknown in the sub-continental jurisprudence. It is not defined in our Code or Civil or Criminal Procedure. We hear of “department actin”  “police action” “prompt action” and the like and we do not use this word in connection with legal proceedings. It is because of this lack of association of the word ‘action’ with legal proceedings that attempts were made to extricate those words from the purview of legal proceedings in a court of law and to consign the words to the arena of exchange of correspondence between the insurer and the insured == *Sadharan

Buma Corporation vs. Sanjib Kumar Das and another, 1 MLR (AD) 179 = 47 DLR (AD) 97.

A legal action involves determination of rights and obligations of the parties thereto. In law only a juristic person, whether natural or artificial, is capable of having a right and an obligation. It, therefore, follows that only a juristic person can maintain a suit in a Court of law. Bangladesh is a juristic person. It is so, by being a Sovereign State: International Community has admitted her into the community of nations as an international person having rights and obligations on international plane. The Constitution of the country has invested her with rights and obligations and thereby clothed her with a juristic personality. Under Article 146 of the Constitution our Republic can sue and be sued by the name of “Bangladesh”. On the other hand, the law has not conferred upon a Ministry or a Department of the Government a legal personality, independent of the Government. In a suit where the name of a Ministry appears as a party, it does so as the representative of the Government or the State, the embodiment of the sovereign power, which is the actual party in the litigation. Modern democracy recognises for the purpose of internal administration of a country, threefold divisions of sovereignty, the legislative, the executive and the judiciary, and admits no further sub-division of any of the above divisions. The Ministry of Health is not a juristic person and has no existence independent of the Executive Government, It derives all its rights and obligations from the Government, of which it forms an integral part. It is inconceivable that a person would bring a legal action against himself to seek redress of a grievance, when he himself can remove the cause of grievance or if it is not possible to remove the cause of grievance, quietly put up with it. So, I conclude that the Ministry of Health cannot maintain a legal action against the Government. (para 9), Specific Relief Act. 1872 (1 of 1877), Section 42, AKM Shafiuddin, J. Civil Revision No. 79 of 2000 ==

*Principal, Barguna Darul Ulum Nesria Alia madrasha vs. Secretary, Ministry of Helthe, represented by the Civil Surgeon Barguna and others, 55 DLR 542.

ACTION: MEANING:

Pending Action: These words have been understood to mean pending suit. The Court misinterpreted and misunderstood that the meaning of ‘action’ is not confined to a suit or other legal proceeding in court or that the word will mean and include any action to be taken by the insurer after the claim is lodged by the insured. We would like to say in the same vein that the words ‘pending action’ have been understood in this sub-continent for well over 80 years as pending suit and we find no jurisprudential backing, no unfurling of a novel proposition of law and no impelling consideration of justice and fair play in the judgement of the High Court Division to disturb that understanding. The High Court Division clearly misinterpreted and misunderstood the words ‘pending’ action and we have no hesitation in disapproving of the same == *Sadharan Bima Corporation vs. Sanjib Kumar Das and another, 47 DLR (AD) 97 = 1 MLR (AD) 179. Ref: Roul Colinvaux in The Law if Insurance, 3rd Edition, 1970 at page 25; Halsbury’s Laws of England, 3rd Edition Vol. 1, at page 2; AN Ghose vs. Reliance Insurance Company, AIR 1934 (Rabgoon)15; Baroda Spinning and Weaving Co. Ltd. vs. Satynarayan Marine and Fire Insurance Co. Ltd. AIR 1914 (Bom) 225; Shree Hari Sankar Nandi Majumdar vs. Sree Promode Chandra Roy Choudhury, 4 PLR (Dacca) 595; Honuman Box vs. Eagle Star and British Dominions Insurance Company Ltd. AIR 1924 (Cal) 186; G. Rainey vs. Burna fire and Marine Insurance Co. Ltd. AIR 1926 (Rangoon) 3; Rubi General Insurance Company vs. Bharat bank. AIR 1950 (EP) 352; Pearl Insurance Company vs. Atma Ram, AIR 1960 (Punjab) 236; Vulcan Insurance Co. Ltd. vs. Maharaj Singh, AIR 1976 (SC) 287; Aargodha Central Co-operative Bank Ltd. vs. Mew Hampshire Insurance Co. PLD 1982 (Karachi) 627; Ali Pipe Industries vs. The Universal Insurance Co. Ltd. PLD 1989 (Lah) 390; Pir Bakhsh vs. Chairman, Allotment Committee PLD 1987 (SC) 145.

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