MD. SONA MIA Vs. COLLECTOR OF CUSTOMS, CHITTAGONG

JUDGEMENT

(1.) In all these appeals a preliminary question arises for consideration and Mr. Ishtiaq Ahmed, learned Additional Attorney General for the Government contended that failure on the part of the appellants to serve notice on the Government as per the first proviso to article 6A (3) inserted in President's Order No. 5 by article 4 of President's Order No. 91 of 1972 resulted in the abatement of the appeals. It is submitted that Government is not a party in these appeals, but the officers of the Government are parties and the relief contemplated in these appeals are not against the officials in their personal capacity and since the relief is on account of the actions taken by them in their official capacity, notice contemplated under article 6A (3) of President's Order No. 5 of 1972 must be served. It is no doubt true that the posts are retained by this Government but that does not mean that their actions under the previous Government have been accepted by this Government.

(2.) Mr. M. H. Khondker learned Counsel for the appellants contended that article 6A refers to cases when Government of Pakistan or East Pakistan is parties. There is no provision in respect of cases against Government officers and as such the notice contemplated under article 6A cannot be claimed in a case where the Government Officers are parties. It was submitted that the Collector of Customs and other officers who are respondents in these appeals and are functioning as such even after the establishment of this sovereign State followed by Proclamation of Independence, and so these appeals could proceed against those officers even without service of notice referred to above. In this connection Mr. Khondker referred to a passage in the case of The Queen Vs. The Justice of the County of London and the London County Council, in (1893) 2 Queen's Bench Division 476 (492) which runs thus:

(3.) The case of The Commissioner of Agricultural Income-tax, West Bengal Vs. Tarek Nath Mukherjee, in 53 CW.N. 725 relates to Bengal Agricultural Income-tax Act. On interpreting a section of this Act is has been held: