BANGLADESH STEAMER AGENTS ASSOCIATION Vs. BANGLADESH

JUDGEMENT

(1.) This appeal arises from a Writ Petition No. 869 of 1979. The appellant association registered under section 26 of Companies Act, 1913 on 29 5-78, obtained a licence from the Government under section 3 of the Trade Organisations Ordinance, 1951 (Ordinance No. XLV of 1961) as a nonprofit making concern. One of the objects of the appellant company, as contained in Clause 3 (36) of its memorandum of association is imparting of instruction and training, theoretical and practical, in the principles and practices of weighment, measurement, storage, discharge of properties of various cargoes meant for export and import and to run measuring. On October 15, 1979 the Ministry of Commerce directed the appellant to amend the aforesaid clause within 30 days. Before quoting this order mention may be made that a similar direction was previously given by the Government to the appellant who was challenged by the appellant before the High Court Division in Writ Petition No. 1003 of 1978. Failing to obtain any relief there, the appellant moved this Court which set aside the order declaring it to be invalid as no opportunity was given to the appellant to show cause against the same. Pursuant to the judgment of this Division in Civil Appeal No. 36 of 1979 the Ministry of Commerce issued the impugned order on October 15, 1979 which rues as follows:-

(2.) In Writ Petition No. 869 of 1979 this order was challenged by the appellant contending, inter alia, that the order was passed with malafide intention to debar the appellant from pursuing lawful trade and offended the principles of natural justice.

(3.) Respondent asserted that the appellant was granted a licence, being licence No. 2/78 on May 6, 1978 to run the company without profit Clause 3(36) of the appellant's Memo-randum of Association authorised it to run licence measurers' department, hereinafter mentioned as L.M.D., for the purpose of imparting instruction in the principles and practices of weighment, measurement, storage and discharge of properties of various cargoes and not for running an L.M.D. as a business. For preventing over invoicing and under invoicing and for ensuring accurate and impartial weighment and measurement of goods for export and import no private organisation was allowed to carry on such business. The Government, therefore, limited it to the National Chambers of Commerce which represent both shippers and ship owners. In this regard the Government followed the International Convention for Simplification of Customs Formalities, 1923. Public notice was issued on September 12, 1959 empowering the Chambers of Commerce and Industry of Dacca, Narayanganj, Khulna and Chittagong under Article 112(2) of the Convention to issue certificates of weighment, measurement and quality in respect of all goods. It was further stated by the respondent that most of the members of the appellant association are of foreign origin and as such it looks after the interest of their foreign principals. In pursuance of the decision of this Court the respondent issued a show cause notice upon the appellant on August 11, 1979 and after considering the replies, passed the impugned order under section 8(1)(b) of the Tirade Organisations Ordinance, 1961.The learned Judges of the High Court Division, while discharging the rule, held that the Government was empowered under section 8 of the aforesaid Ordinance to pass the impugned order. Being aggrieved by this order the appellant moved this Division and obtained leave to consider whether the impugned order violated the provisions of Articles 27 and 40 of the Constitution and also to consider whether the High Court Division was wrong in deciding the locus standi of the appellant to challenge the impugned order on the ground of infringement of fundamental rights. Mr. Hamidul Huq Chowdhury, counsel for the appellant, submitted that the impugned order violated the Constitutional provisions of not only Articles 27 and 40 but also those of Article 31 of the Constitution. Besides, the learned Judges of the High Court Division were wrong in deciding that the appellant had not any locus standi to file the petition under Article 102. The learned Counsel further contended that the impugned order was passed by the Government in violation of the principles of natural justice and m colourable exercise of powers under section 8 of the Ordinance. Without mincing words, he made it clear that the impugned order was passed by the Government at the instance of the Chittagong Chamber of Commerce. He asserted that under clause 3(36) of the memorandum of association the appellant could carry on the business of weighment and measurement which could not be prohibited to be carried on by the appellant. Mr. K. A. Bakr, Attorney-General, submitted that the Government had power under section 8 of the Ordinance to direct the appellant to amend its memorandum of association by deleting clause 3(36). He submitted that the aforesaid provisions of law in section 8 recognise the State power to control foreign trade. Besides, under the provisions of International Convention referred to above, the Government had the power to authorise any person or organisation to issue certificate of origin or certificate of weighment, measurement or quality of goods which are exported or imported.