Decided on December 11,1997

Aung Shwe Prue Chowdhury Appellant
Kyaw Sain Prue Chowdhury Respondents


MUSTAFA KAMAL,J. - (1.) This appeal by leave by the writ petitioner is from the judgment and order dated 12-1-97 passed by a Division Bench of the High Court Division in Writ Petition No. 5101 of 1996 discharging the Rule Nisi and thereby affirming the impugned notification No. Spe: Aa: B I:(Ain)-32/96/205 dated 4-11-96 published in the Bangladesh Gazette on 21-11-96, appointing and recognising respondent No.1 Kyaw Sam Prue Chowdhury as the Chief of Bohmong Circle of Chittagong Hill Tracts under the Chittagong Hill Tracts Regulation 1900 and directing the Commissioner, Chittagong Division, Chittagong Hill Tracts to arrange his investiture under Regulation 48 of the said Regulations.
(2.) It was the case of the writ petitioner (appellant herein), Aung Shwe Prue Chowdhury that Bandarban Hill Tracts District and part of Rangarnati Hill Tracts District are inhabited by the tribal people of Bohmong circle who have their own way of lives and social pattern, governed by age-old usage, tradition and customs, one of which is to have a Chief of the Circle appointed from the Bohmong Dynasty. The Bohmong Dynasty was headed by Bohmong San Byu who was Governor of Chittagong during 1614 to 1630 under the Burmese Ruler. He was successively succeeded by Bohmong Mong Shwe Prue (1630-1665), Bohmong Hari Prue (1665-1687) and Bohmong Han Nyo (1687-1727). These four Governors ruled from Burma and did not enter into the area now known as Chittagong Hill Tracts. The fifth Governor Bohmongree Kong Hia Prue was the Chief of the Bohmong Circle of Chittagong Hill Tracts from 1727-1811. Henceforth all the Chiefs of Bohmong Circle had been living in the Hill Tracts and thereafter there were as many as nine Bobmong Chiefs who succeeded each after the other. The last Chief Bohmongree Mong Shaw Prue (1959-1996) died on the 16th June, 1996 causing a vacancy in the Chiefship. The successor has always been filled in by the eldest in male line who was not unfit. This rule is a custom of Bohmong Circle that has been recognised and reported in various publications beginning from the District Gazetteers. Thus RH Sneyd Hutchinson, while writing about the tribes of Chittagong Hill Tracts in the Eastern Bengal and Assam District Gazetteer, Chittagong Hill Tracts, wrote about succession at page 33 as follows: The succession to the tribal chief ship of Bobmong, is the next eldest male blood relative and does not follow in the direct line.
(3.) In a letter bearing No. 2549p dated Calcutta, the 22nd February, 1917 Mr. JH Kerr ICS officiating Chief Secretary to the Government of Bengal wrote to the Commissioner of Chittagong Division as follows: that the statement in your letter No.3737G.-1-57dated the 24th May, 1916, that the Chiefship is transmitted to the eldest surviving male relative by male line of descent was not strictly accurate. It appears from paragraph 30 of the report dated the 9th August, 1875, of Lieutenant Gordan, Assistant Commissioner, Chittagong Hill Tracts that fitness and age rather than priority of descent regulate succession to the Bohmongship. This principle was followed in the Government of Bengals letter No.280, dated 21 January 1876 in which Thahneys Chowdhury was recognised as Bohmong on probation only, and it was also the main consideration which influenced the Governor in Council in approving the succession of the present Bohmong. His Excellency in Council considers that it should be followed in deciding questions relating to the succession which may arise in the future. In the Upajatiya Gabeshana Patrika published in September 1995 by the Upajatiya Sanskritik Institute Rangamati (Second Edition) it was at page 200 as follows: ....[VARNACULAR TEXT OMITTED]....;

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