Editors’
Note:
Reference
was sent to the High Court Division by the Court of Additional District Judge,
Bandarban Hill District in view of the provisions under Section 113 read with
Order XLVI, rule 1 of the Code of Civil Procedure, 1908 seeking opinion of the
High Court Division of the Supreme Court of Bangladesh on two legal questions
as regards interpretation of Section 6 of the Chittagong Hill-Tracts Regulation
(Amendment) Act, 2003 (Act No. 38 of 2003), namely, whether the civil appeal
cases pending before the Divisional Commissioner, prior to the said amending
Act coming into force should be transferred to the Court of District Judge of
the respective Hill Districts, and, if the same are so transferred, whether the
District Judge or the Additional District Judge of the respective districts, as
the case may be, should dispose of the same. Examining the relevant provisions
of the Chittagong Hill Tracts Regulation, 1900 (Regulation No. I of 1900) and
the Chittagong Hill-Tracts Regulation (Amendment) Act, 2003 (Act No. 38 of
2003) and considering the historic perspective of the Hill Tracts Districts and
opinions of the amici curiae the High Court Division held that it is clear from
the text of the ‘special provision’ under Section 6 of the amending Act of 2003
that the Legislature deliberately did not mention anything about the pending
civil appeals and the proceedings of civil nature as was pending before the
Divisional Commissioner of Chattogram before the said amending Act came into
force and according to amended section 8 of the Regulation the District Judges
have been given appellate jurisdiction only against the orders, judgments and
decrees of the Joint District Judges of the respective districts and not
against any order of the Deputy Commissioner of the district concerned or any
other officer. Therefore, the High Court Division decided the answers to both
the aforesaid legal questions to be “IN THE NEGETIVE” and ordered civil appeals
and the proceedings of civil nature pending before the Divisional 17 SCOB
[2023] HCD Civil Miscellaneous No. 11 of 2022 (Reference) (Sheikh Hassan Arif,
J) 9 Commissioner and Additional Commissioners of Chattogram not to be
transferred to the District Judges of the respective hill districts and, if the
same have in the meantime been transferred to the District Judges concerned,
the same should be returned back immediately if the same have not been disposed
of yet. However, the High Court Division excepted any such proceeding disposed
of by the District Judges and Additional District Judges from the order
treating those as past and closed matters.
Chittagong Hill Tracts Regulation, 1900
Section 8(3), 8(4), 8(5):
The
District Judges of the respective districts shall only have jurisdiction to
entertain appeals from the orders, judgments and decrees of the respective
Joint District Judges of the said districts: Although three separate civil
jurisdictions have been created and Joint District Judges of the said districts
have been given the jurisdiction to try civil cases, such civil cases shall
have to be tried or disposed of in accordance with the existing laws, customs
and usages of the district concerned and not in accordance with the Code of
Civil Procedure. On the other hand, the said Joint District Judges, exercising
original jurisdiction, shall not have jurisdiction in trying or disposing of
cases arising out of family laws or other customary laws of the tribes of the
district concerned and such matters shall be triable by the respective Mouza
Headmen and Circle Chiefs. Finally, the District Judges have been given
appellate jurisdiction only against the orders, judgments and decrees of the
Joint District Judges of the respective districts and not against any order of
the Deputy Commissioner of the district concerned or any other officer. It has
long been settled by long line of decisions of this Court that the jurisdiction
as well as the appellate jurisdiction of a Court is the creature of Legislation
and such jurisdiction can be exercised by such appellate forum only to the
extent of such power given by the Legislature by the said legislation
conferring such jurisdictions. This being so, in the instant matter, it appears
that the District Judges of the respective districts shall only have
jurisdiction to entertain appeals from the orders, judgments and decrees of the
respective Joint District Judges of the said districts. ...(Para 4.11)
Establishment
of Civil Courts under special law:
Unlike
the civil courts in rest of the country, the civil courts in CHT area have not
been established under the Civil Courts Act, 1887 (Act No. XII of 1887).
Rather, they have been established under the amended provision of the said
Regulation. Therefore, they are the special types of civil courts established
under the said special law. ...(Para 4.12)
Applicability
of the customary law of the land in Chittagong Hill Tracts:
Historically
Chittagong Hill Tracts area was governed by distinctive law and administrative
procedure. Particularly, in matters of civil disputes, the customary law of the
land in Chittagong Hill Tracts area has always been made applicable. Such
historic recognition of customary law and non-application of Code of Civil
Procedure has again been recognized by the Legislature by inserting sub-section
(4) in Section 8 of the said Regulation providing, thereby, that the Joint
District Judge, as Court of original jurisdiction, shall try all civil cases in
accordance with the existing laws, customs and usages of the district
concerned. Not only that, the Legislature, by this amending Act, has also kept
the cases arising out of family laws and other customary laws of the tribes out of the jurisdiction of
the Joint District Judges and, in respect of those matters, the jurisdiction of
the Mouza Headmen and Chief Circles concerned of the triable people have been
recognized. ...(Para 4.15) Presumption as to awareness of the Legislature:
While interpreting an amending law enacted by parliament, it cannot be presumed
that the Legislature was unaware of the existing law or that the Legislature
has committed any mistake by not mentioning a particular matter in the amending
law. ...(Para 4.17)
Chittagong Hill-Tracts Regulation (Amendment) Act, 2003
Section 6 and 8:
Therefore,
if we read this added sub-section (5) of Section 8 along with the said special
provision under Section 6 of the amending Act, we have no option but to hold
that it is the Legislature, which does not want those pending civil appeals and
proceedings of civil nature to be transferred to the District Judge of the
respective districts and, because of that, the Legislature remained silent in
respect of the said pending civil appeals and proceedings. [17 SCOB [2023] HCD
8]
Chittagong Hill Tracts Regulation, 1900
Section 17- The Deputy Commissioner of the district has been given power to revise any order passed by a Deputy Magistrate or Deputy Collector or a Sub-Deputy Magistrate or Sub-Deputy Collector and a Divisional Commissioner may revise any order made under the Regulation by the Deputy Commissioner and the Government may revise any order made by the Commissioner. Under this provision, no power has been given upon the Land Appeal Board to revise any order passed by the Divisional Commissioner. The Land Appeal Board Ain, 1989 has been empowered to exercise such powers as may be given by the government or by any other law. There is a provision for appeal to the government from the decision of the Board and the said decision of the appellate authority shall be final. Subsequently, by circular under memo dated May 23, 1989, the following powers of the Board has been given from the decision of the Deputy Commissioner, Additional (Revenue) Deputy Commissioner and the Divisional Commissioner for its disposal: (ক) ভূমি সংক্রান্ত মামলা, (খ) নামজারী ও খারিজ মামলা, (গ) পরিত্যক্ত, অর্পিত ও বিনিময় সম্পত্তি বিষয়ক মামলা, (ঘ) সায়রাত ও জলমহল সংক্রান্ত মামলা, (ঙ) ভূমি রেকর্ড সম্পর্কিত মামলা, (চ) ভূমি উন্নয়ন কর, সার্টিফিকেট মামলা, (ছ) ওয়াকফ/দেবোত্তর সম্পত্তি সংক্রান্ত মামলা, ( জ) খাসজমি বন্দোবস্ত সংক্রান্ত মামলা। Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher. [3 LM (AD) 478]
Section 17(3) On a plain reading of the Regulation of 1900, one may arrive at the conclusion that this Regulation was promulgated with the object of giving a special privilege to the indigenous people of the three hill districts to protect and safeguard their culture, traditional practices and customs, and they should not fall prey to the tactics of unscrupulous people. A privilege is a special right reserved to an individual person or a limited class of persons, bodies or institutions. Its grant is generally attended by some degree of formality in the form of letters patent or some other document. Privileges would occupy a small circle within a much larger circle of rights. Every privilege is a right but not every right is a privilège. Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, [3 LM (AD) 478]
Chittagong Hill Tracts- The Session Judge has been given the power to take cognizance of any offence as a court of original jurisdiction. This power has been given to a Magistrate in respect of other Session Divisions of the country. The three districts have been constituted three separates civil jurisdictions under three Districts Judges and a Joint District Judge has been given power to exercise a court of original jurisdiction under section 8(4). While exercising such power he shall follow the existing laws, customs and usages of the districts concerned, except the cases arising out of Family Laws and other customary laws of the tribes of the districts of Rangamati, Khagrachori and Bandarban respectively, which shall be triable by the Mauza headmen and Circle Chiefs. Against an order, judgment or decree passed by the Joint District, the District Judge have been given the appellate power.
The High Court Division has been given all appellate powers under the Code of Criminal Procedure under section 9, but in respect of civil disputes no such power has been given upon the High Court Division. These provisions are sufficient to come to the conclusion that the government still recognize the customs and usages of the tribal people of the region while adjudicating civil disputes.
The High Court Division has totally ignored these aspects of the matter. The appeal is therefore, allowed. The judgment of the High Court Division is set aside, so far as it relates to the observation that Regulation 1 of 1900 is a dead law. .....Ministry of Finance VS= Rangamati Food Products Ltd., [5 LM (AD) 302]