MOSHARRAF HOSSAIN Vs. MOULANA MD. TOFAZZAL HOSSAIN

JUDGEMENT

(1.) This appeal by leave, is preferred against the judgment and order dated 16.3.2002 passed by the High Court Division in Writ Petition No. 3382 of 2000 making the Rule absolute.

(2.) The respondent No. 1, filed the above writ petition challenging the Memo No. 1372 Bichar-7/2N-146/80 dated 6.6.2000 issued by the Senior Assistant Secretary, Ministry of Law, Justice and Parliamentary Affairs, stating, inter alia, that he hails from No. 9 Goalerchar Union of Islampur Police Station, District Jamalpur and upon his application, Ministry of Law, Justice and Parliamentary Affairs on 2.11.1999 appointed him as Nikah Registrar for the said Goalerchar Union on temporary basis; four other persons namely Kh. Matiur Rahman, Md. Liakat Ali, Md. Shafiqul Islam and Md. Abdul Hannan were also appointed as Niskah Registrars of Charputimari Union, Palabandha Union, Gaibandha Union and Islampur Union of Islampur Police Station respectively at the same time on temporary basis; against the above appointments of the respondent No. 1, Md. Abdul Hannan and Md. Shafiqul Islam as Nikah Registrars on temporary basis the appellant filed Other Class Suit No. 47 of 1999 in the 1st Court of Subordinate Judge (Now Joint District Judge), Jamalpur praying for declaration that appointment of the aforesaid three persons as Nikah Registrar of three unions were void, illegal and ultra vires and the appellant also filed an application under order 39 Rule 1 of the Code of Civil Procedure and the above court on 30.11.1999 passed an order of status quo restraining the defendants not to issue license of Nikah Registrar till hearing of the injunction matter and as a result license was not issued to the respondent No. 1 and others; the respondent No. 1 and others filed written objection and also filed a separate application stating that the aforesaid suit cannot be entertained by the Court and after hearing the learned Subordinate Judge (now Joint District Judge) by order dated 2.4.2000 allowed the above application and instructed the plaintiff appellant to file case in a proper court and vacated the order of status quo; thereafter on the basis of the approval of the Ministry of Law, Justice and Parliamentary Affairs, the District Registrar, Jamalpur appointed the respondent No. 1 as Nikah Registrar of No. 9 Goalerchar Union on 9.4.2000 and the respondent No. 1 started functioning as Nikah Registrar of Goalerchar Union but suddenly the Senior Assistant Secretary Ministry of Law, Justice and Parliamentary Affairs issued the Memo dated 6.6.2000 under section 4 of the Muslim Marriages and Divorce (Registration) Act, 1974 (Act) revoking the appointment of the respondent No. 1 as Nikah Registrar of Goalerchar Union and reinstating the appellant as Nikah Registrar of the said Union and consequently the District Registrar, Jamalpur issued the Memo dated 13.6.2000 granting license to the appellant to act as Nikah Registrar of Goalarchar Union on temporary basis. The High Court Division after hearing made the Rule absolute.

(3.) The learned counsel appearing for the appellant submits that the first part of section 4 of the Act provides for appoint and also granting license to the Nakah Registrar and accordingly by Memo dated 6.6.2000 the appellant was reinstated in his previous post of temporary Nikah Registrar of No. 9 Goalirchar Union and in any view of the matter quoting of a wrong section in no way give a different meaning to the contents of the order itself which the High Court Division failed to consider; the Government having not yet granted license under Rule 5(4) of Muslim Marriage and Divorce Rules, 1975 (Rules) in favour of the respondent No. 1 till the order dated 6.6.200 was passed and the requirement of issuing of notice to show cause before cancellation of license being applicable only in case of Nikah Registrar who has been issued license under the aforesaid Rule 5(4), the High Court Division erred in holding that cancellation of license of the respondent No. 1 is not legal for want of notice of show cause before cancellation; the appellant having been appointed as a Nikah Registrar for 5 Unions in 1994 license was also granted but without canceling or revoking the above appointment/ grant of license the respondent No. 1 and others were appointed as Nikah Registrar in the above Unions and so by orders dated 6.6.2000 and 13.6.2000 the appointment of the appellant having been restored in respect of only Goalerchar Union from which the appellant hails the High Court Division erred in not treating the Memo dated 6.6.2000 as an order of restoration of the appointment of the appellant in one Union only under section 4 of the Act.