LEX/BDAD/0034/2005

Equivalent Citation: 2007(15)BLT(AD)144, 58 DLR(AD) (2006) 229

IN THE SUPREME COURT OF BANGLADESH

(APPELLATE DIVISION)
Civil Appeal Nos. 96-98 of 2004 with Civil Petition for Leave to Appeal No. 558 of
2004
Decided On: 02.05.2005
Appellants: Anwar Hossain
Vs.
Respondent: Mainul Hosein & others
Hon'ble Judges:
Md Ruhul Amin, MM Ruhul Amin and Md Tafazzul Islam, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rafiqul Huq, Senior Advocate, Rokonuddin Mahmud,
Senior Advocate, MK Rahman, A Azizul Huq, Chowdhury Zafarullah, Advocates with
them instructed by Syed Mahbubur Rahman, Advocate-on-Record
For Respondents/Defendant: Akhtar Imam, Senior Advocate, Abdur Razzaq, Senior
Advocate with him instructed by Aftab Hossain, Advocate-on-Record - For Respondent
No. 1
Case Note:
Election - Post - Holding of - Article 147(3) of Constitution of People's
Republic of Bangladesh - Present appeals filed against judgment and order
passed by High Court Division in Writ Petition wherein Rule Nisi was issued
calling upon respondent No. 1 to show cause as to why he should not be
prohibited from holding post and position of Executive Director-II, Editor,
Printer and Publisher of Daily Ittefaq as he is debarred from acting as such
under Article 147(3) of Constitution - Whether judgment and order passed
by High Court Division need interference - Held, appellant is no more
Minister - Rules in all writ petitions have become infructuous - No need to
examine and decide whether in view of Article 147(3) of Constitution,
holding of impugned post by appellant after he became Minster was
violative of Constitutional Provisions or not - Appeal allowed. [26]
JUDGMENT
MM Ruhul Amin, J.
1. These certificate appeals are from the judgment and order dated 14-7-2003 passed
by the High Court Division in Writ Petition Nos. 3773 of 1996. 2746 of 1997 and
3834 of 1999 making the Rules obtained in all the writ petitions absolute. In Writ
Petition No. 3773 of 1996, Rule Nisi was issued calling upon the respondent No. 1,
Mr Anwar Hossain to show cause as to why he should not be prohibited from holding
the post and position of the Executive Director-II, Editor, Printer and Publisher of the
Daily Ittefaq as he is debarred from acting as such under Article 147(3) of the
Constitution of the People's Republic of Bangladesh.

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 2 . In Writ Petition No. 2746 of 1997 Rule Nisi was issued calling upon the
respondents, the District Magistrate and the Additional District Magistrate. Dhaka and
Mr Anwar Hossain to show cause as to why the impugned orders contained in
Annexures-E and G and the publication of name of respondent No. 3, Mr Anwar
Hossain as printer and publisher on behalf of the petitioner No. 2, Ittefaq Group or
Publications Ltd should not be declared to have been made without lawful authority
and is of no legal effect.
3. In Writ Petition No. 3834 of 1999 Rule Nisi was issued calling upon the respondent
Mr Anwar Hossain to show cause as to why his acts of issuing the impugned orders
contained in Annexures-A, A-I and A-2 directly taking part in the management and
running the business of the petitioner No. 2, Ittefaq Group of Publications Ltd should
not be declared to have been made illegally and without lawful authority and to be of
no legal effect.
4. The case of the writ petitioners, in short, is that Ittefaq Group of Publications Ltd,
petitioner No. 2 in Writ Petition No. 2746 of 1997 and Writ Petition No. 3834 of 1999,
is a Private Limited Company incorporated under the Companies Act on 31-1-1970
which, among others, took over the management and publications of the National
Daily the daily Ittefaq together with other business as indicated in its Memorandum of
Association. From the inception of the said Company writ-petitioner Mr Mainul Hosein
was made the Executive Director-I and writ-respondent Mr Anwar Hossain was made
the Executive Director-II and they constituted the Executive Committee as a mini
Board of Directors of the said company as provided in Article 52 of the Articles of
Association of the Company. The concept of the Executive Committee in the Articles
of Association of the said Company was devised for the purpose of conferring joint
responsibility on the two Executive Directors in matters of running the business of
the Company including the management and the publication of the daily Ittefaq so
that the Company can function smoothly without referring almost every matter to the
Board of Directors for decision.
5 . From the inception of the publication of the said daily, writ-petitioner Mr Mainul
Hosein was made the editor of the said newspaper and late Mr Motahar Hossain
Siddiqi, a family friend of late Mr Manik Mia, was made to act as the Printer and
Publisher for the said daily. Subsequently, the Company appointed the writ-
respondent Mr Anwar Hossain editor of the daily Ittefaq by a resolution dated 10-3-
1972 in place of the writ-petitioner Mr Mainul Hosein and Mr Mainul Hosein was made
the Chairman of the Board of Editors as he wanted to spend more of his time in the
profession of law. When the aforesaid daily was being published and run under the
arrangement as above writ-respondent Mr Anwar Hossain suddenly joined the cabinet
of General HM Ershad's Government on 26-3-1985. Mr Motahar Hossain Siddiqi,
thereupon, as the Printer and Publisher of the daily Ittefaq, informed the District
Magistrate, Dhaka that writ-respondent Mr Anwar Hossain was no longer functioning
as the editor and the Senior Assistant Editor of the paper Mr Akhtarul Alam would act
as the editor until further decision. Mr Anwar Hossain in spite of his becoming a
Minister wanted to continue as the editor. In this situation the Directors and the
shareholders of the Company passed a resolution dated 29-3-1985 making Mr Anwar
Hossain the Publisher and Mr Mainul Hosein the Printer of the daily Ittefaq after
removing the family friend Mr Motahar Hossain Siddiqi. On the following day, on 30-
3-1985, another resolution was passed by the Company appointing Mr Anwar Hossain
as the Printer and Publisher on behalf of the Company in place of Mr Motahar Hossain
Siddiki. Mr Motahar Hossain Siddiki resigned as the Printer and Publisher of the
Company by giving a declaration in Form-C on 21-4-1985 and on the same date i.e.

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 21-4-1985, Mr Anwar Hossain made a declaration in Form-B under section 7 of the
Printing Presses and Publications (Declaration and Registration) Act 1973 as Printer
and Publisher of the daily Ittefaq for the Company. Mr Anwar Hossain continued as
the Minister under the Martial Law Government of HM. Ershad upto 6-12-1990 and Mr
Akhtarul Alam continued as the editor in-charge for the daily Ittefaq. Ultimately, Mr
Akhtarul Alam was appointed as Ambassador for Bangladesh to Bahrain and the
publication of his name as Editor in-charge was discontinued with effect from 15-4-
1992. Mr Anwar Hossain by show of power and using muscle power of his political
party got his name forcibly published as editor without caring to take the matter to
the Board of Directors for a decision. Although the post of the editor fell vacant on
his becoming Minister it was not possible for the Company to appoint a new editor
because of the non-co-operation of Mr Anwar Hossain in this regard. Accordingly, the
name of Mr Rahat Khan was published as Editor-in-charge. At that time the writ-
petitioner Mr Mainul Hosein came to learn from the letter dated 4-2-1997 addressed
by the Additional District Magistrate, Dhaka to writ-respondent Mr Anwar Hossain that
the Additional District Magistrate had accepted Mr Anwar Hossain as the Publisher
without any reference to the Company although the Company itself was and still the
publisher and Mr Anwar Hossain Was performing as the Publisher for and on behalf of
the Company. The Additional District Magistrate by the said letter informed that his
office had no objection if Mr Rahat Khan discharges the functions as editor in-charge
during the period of absence of the editor Mr Anwar Hossain. This letter dated 04-2-
1997 is impugned as Annexure-E to the Writ Petition No. 2746 of 1997. The writ-
petitioner Mr Mainul Hosein, thereupon addressed a letter dated 12-3-1997 to the
Additional District Magistrate. Dhaka clarifying that Ittefaq Group of Publications Ltd
was in fact, the Printer and Publisher and Mr Anwar Hossain had been acting as the
Printer and Publisher of the daily Ittefaq for the Company. Mr Mainul Hosein also
informed by the said letter that Mr Anwar Hossain ceased to be the editor of the daily
Ittefaq when he entered the office of Minister by operation of the provision of Article
147(3) of the Constitution and Mr Rahat Khan became the editor as there was no such
position as Editor in-charge or acting editor under the Printing Presses and
Publications (Declaration and Registration) Act, 1973. Consequently; Mr Anwar
Hossain should not therefore, be considered as the editor of the said daily.
Subsequently, the Additional District Magistrate addressed a letter dated 3-4-1997 in
reply to his letter dated 12-3-1997 informing Mr Mainul Hosein that Mr Anwar
Hossain was the Printer and Publisher of the daily Ittefaq and he alone had the power
and authority to decide as to who would discharge the functions as the editor during
his absence as editor. This letter dated 3-4-1997 is impugned as Annexure-G to the
Writ Petition No. 2746 of 1997. Again, while Mr Anwar Hossain was continuing as a
Minister from 23-6-1996 to 15-7-2001 under the Government of the Awami League
he ceased to be the Printer. Publisher and Editor of the daily Ittefaq but even in that
situation Mr Anwar Hossain passed certain orders dated 23-1-1999, 17-8-1999 and
25-9-1999 terminating services of some employees and appointing some which
amounted to taking part in the management or conduct of the said Company although
he was debarred from doing so as contemplated under Article 147(3) of the
Constitution. These actions of Mr Anwar Hossain terminating services of two
employees and appointing a person in the employment of the said Company as
evident in Annexures A. A-I and A-2 have been impugned in Writ Petition No. 3834 of
1999.
6. Writ-respondent Mr Anwar Hossain has contested the Rule in all the aforesaid writ
petitions by filing affidavits-in-opposition and contended that he became the Printer.
Publisher and Editor of the Daily Ittefaq as per the decision of the Company as
reflected in its various resolutions. But he never ceased to be the printer, publisher

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 and editor by operation of provision of Article 147(3) of the Constitution as alleged
by the writ petitioner No. 1. The further case is that the position of Mr Anwar Hossain
as the Printer, Publisher and Editor of the daily Ittefaq not having been affected by
his becoming the Minister there was no necessity of appointing anyone as the printer,
publisher and also as the editor of the daily Ittefaq. Hence Mr Akhtarul Alam was
appointed as editor in-charge in the absence of Mr Anwar Hossain and he (Akhtarul
Alam) continued as such without any objection from any quarters during the period
Mr Anwar Hossain became a Minister in the cabinet of Ershad's Government.
Similarly, Mr Rahat Khan was appointed by him as the acting editor during his
absence when he became the Minister in the Government of Awami League. Since the
post of printer, publisher and editor of the daily Ittefaq never fell vacant while Mr
Anwar Hossain became Minister twice there was no necessity of making any fresh
declaration as regards the printer, publisher and editor under section 7 and
authentication of the declaration under section 12 of the Printing Presses and
Publications (Declaration and Registration) Act, 1973. Hence the communications
made by the Additional District Magistrate. Dhaka in this regard and impugned in Writ
Petition No. 2746 of 1997 were in accordance with law. It is also stated in the
affidavit-in-opposition filed by Mr Anwar Hossain in Writ Petition No. 3834 of 1999
that since those impugned orders regarding dismissal and appointment of some
persons in the company were subsequently withdrawn, Rule in the said writ petition
became infructuous.
7 . Respondent Nos. 1 and 2, the District Magistrate and the Additional District
Magistrate Dhaka respectively, have also contested the Rule by filing affidavit-in-
opposition in Writ Petition No. 2746 of 1997 taking the stand as taken by Mr Anwar
Hossain.
8 . A Division Bench heard the writ petitions and gave split Judgements. Md Joynul
Abedin J, discharged the Rules in all the writ petitions while Abdus Salam Mamun J,
made the Rules absolute in all the writ petitions, Since the learned Judges differed
with each other, the matter was placed before the learned Chief Justice for necessary
orders. The matter was then referred to the third Judge who concurred with Abdus
Salam Mamun J and the Rules issued in the writ petitions were made absolute.
9 . Since the matter in dispute involves substantial question of law as to the
interpretation of the Constitution, the learned third Judge issued a certificate under
Article 103(2)(a) of the Constitution to prefer appeal from the impugned Judgment
and order passed by the High Court Division and accordingly, these appeals were
preferred.
1 0 . We have heard Mr Rafiq-ul-Huq with Mr Rokonuddin Mahmud, the learned
Counsels for the appellants and Mr Aktar Imam and Mr Abdur Razzaq, the learned
Counsels for respondent No. 1 in all the appeals.
11. Mr Rafiq-ul-Huq submits that Rules in Writ Petition Nos. 3773 of 1996 and 3834
of 1999 under Article 102(2)(a) of the Constitution are not maintainable, inasmuch as
the impugned acts or omissions were not committed by Mr Anwar Hossain in
connection with the affairs of the Republic or a local authority as required under
Article 102(2) but it was done in relation to or in the affairs of Ittefaq Group of
Publications Ltd, a private limited company incorporated under the Companies Act,
1913. He next submits that since some civil suits are admittedly pending involving
adjudication of the same points as in these three writ petitions, Rules were liable to
be discharged as being not maintainable and the petitioners cannot invoke both the

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 jurisdictions for the same relief. He further submits that Rule in Writ Petition No.
2746 of 1997 is liable to be discharged for failing to invoke or exhaust the alternative
statutory remedy by way of appeal before the Press Appellate Board as provided
under section 12A(3) of the Printing Presses and Publications (Declaration and
Registration) Act, 1973. He further submits that Rule in Writ Petition No. 2746 of
1997 is also hit by the principle of res judicata, inasmuch as the point involved in the
present Rule has already been decided against the petitioners by the judgment passed
in Writ Petition No. 1481 of 1994 and the petitioners did not challenge the same
before the higher forum. He next submits that sub-Article (3) of Article 147 of the
Constitution has created a bar for the persons appointed to or acting in the offices
specified in sub-Article (4). But the provision to sub-Article (3) with a deeming
clause has excluded the bar created by sub-Article (3). Therefore, such person shall
not be debarred from retaining his former office post or position of profit or
emolument. So, Mr Anwar Hossain did not lose his office as Executive Director-II in
Ittefaq Group of Publications Ltd and also his office, post or position as the printer,
publisher and editor of the daily Ittefaq after he was appointed a Minister in the
cabinet of General HM Ershad and also during the coalition government of the Awami
League. He lastly submits that since Mr Anwar Hossain was no longer a Minister when
the writ petitions were heard, Rules issued in all the writ petitions became
infructuous and were liable to be discharged accordingly. He also submits that the
orders dated 23-1-1999, 17-8-1999 and 25-9-1999 (Annexures A-A(2) as impugned
in Writ Petition No. 3834 of 1999 were subsequently withdrawn by the appellant,
which is an admitted position, and, as such, Rule issued in this writ petition became
infructuous.
12. Let us first take up the last submission of Mr Huq for consideration. In support of
his contention that the Rules have become infructuous, the learned Counsel cited the
case of Kudrat e-Elahi Panir vs. Bangladesh reported in 44 DLR (AD) 319 and
submitted that in that case it was held that the Court does not answer merely
academic question but confines itself only to the point/points which are strictly
necessary to be decided for the disposal of the matter before it. This should be more
so when constitutional questions are involved. He then cited the case of the State of
Bihar vs. Rai Bahadur Hurdut Roy Moti Lall Jute Mills and another reported in:
MANU/SC/0010/1959 : AIR 1960 SC 378 and submitted that in that case it was
decided "in cases where the vires of statutory provisions are challenged on
Constitutional grounds, it is essential that the material facts should first be certified
and ascertained with a view to determine whether the impugned statutory provisions
are attracted; if they are, the Constitutional challenge to their validity must be
examined and decided. If, however, the facts admitted or proved do not attract the
impugned provisions there is no occasion to decide the issue about the vires of the
said provisions. Any decision on the said question would in such a case be purely
academic. Courts are and should be reluctant to decide Constitutional points merely
as matters of academic importance." He next cited the case of Madhu Limaye vs. The
Superintendent. Tihar Jail, Delhi and others reported in : MANU/SC/0150/1975 : AIR
1975 SC 1505. In that case the Rules in Jail Manual, making discrimination between
European and Indian prisoners in regard to treatment and diet were called in question
but the Court did not think it necessary to interfere as the petitioner was no longer in
the prison when the matter was heard. He also cited the case of M Saleem Ullah
Advocate vs. Md Abdur Rouf Chief Election Commissioner and others reported in 1
BLC 229. In that case it was held that since Justice Md Abdur Rouf ceased to be the
Chief, Election Commissioner and returned to his former post as a Judge of the High
Court Division and subsequently, elevated to the Appellate Division, the Rule became
infructuous.

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 13. In support of his argument that Rules in Writ Petition Nos. 3773 of 1996 and
3834 of 1999 are not maintainable under Article 102(2)(a) of the Constitution,
inasmuch as the impugned acts or omissions were not committed by Mr Anwar
Hossain in connection with the affairs of the Republic or a local authority as required
under Article 102(2) but in relation to or in the affairs of Ittefaq Group of Publications
Ltd, a Private Limited Company incorporated under the Companies Act. Mr Huq cited
the case of Md Abdur Rashid Khan vs. Government of the People's Republic of
Bangladesh reported in 6 MLR (AD) 8 and submitted that in that case the writ
petitioner filed writ petition challenging the order of suspension from the post of
Principal of Barisal City College passed by the Deputy Commissioner. Barisal as the
Chairman of the Governing Body of the College, it was held that once the Deputy
Commissioner passed the impugned order of suspension not as the Deputy
Commissioner but as the Chairman of the Governing Body no writ lay as he was not
performing functions in the affairs of the Republic while passing the impugned order
of suspension. He next cited the case of Manjurul Huq vs. Bangladesh and others
reported in LEX/BDHC/0032/1991 : 44 DLR 239. In that case the petitioner, a lessee
of a canteen of Diabetic Association, by filing writ petition prayed for a Rule Nisi
under Article 102(2)(a) calling upon the Director General and the Secretary of the
said Association to show cause why the orders passed by them requiring him to pay
the arrear gas bills in connection with the canteen and the donation money due from
him to the Association should not be declared to have been passed without lawful
authority. Therein it was held since the Bangladesh Diabetic Association is not a
person performing any functions in connection with the affairs of the Republic or of a
local authority, the writ petition was not maintainable. He next cited the case of New
Dhaka Industries Ltd vs. Quamrul Huda and others reported in 31 DLR (AD) 234, In
that case the question arose whether an employee of New Dhaka Industries Ltd
incorporated under the Companies Act and subsequently nationalised under
President's Order 27 of 1972, could challenge the order of dismissal passed by the
management of the said company by filing writ petition against the said company. It
was held that since New Dhaka Industries Ltd, even after its nationalisation under the
President's Order No. 27 of 1972 and vesting in the Bangladesh Jute Mills Corporation
retained its corporate character, its employee could not invoke Writ jurisdiction under
Article 102 of the Constitution in order to challenge his order of dismissal. He also
cited the case of Md Abdur Rahman vs. The National Tea Company Ltd & others
reported in 4 MLR (AD) 347. It was held in that case that since Md Abdur Rahman
was an employee of National Tea Company Ltd and since National Tea Company was
not a local authority within the meaning of section 3(28) of the General Clauses Act,
1897 the order of termination of his service by the Company was not liable to be
challenged under the writ jurisdiction. He also cited the case of Khurshed Alam vs.
Bangladesh reported in 47 DLR 299. In that Case the question arose whether the writ
petition challenging the decision of Election Appeal Board, created under the Election
Rules framed under section 23 of the Trade Organisations Ordinance, 1961 was
maintainable. It was held that the Election Appeal Board was a private body and not a
local authority set up by any law nor does it perform any function in connection with
the affairs of the Republic. In the circumstances, writ petition was held not
maintainable.
14. The learned Counsel for the respondents, on the other hand, submitted since the
acts challenged in these writ petitions were the acts of Mr Anwar Hossain and, as
such, his continuation as the Executive Director-II of the Ittefaq Group of Publications
Limited and as Printer. Publisher and Editor of the Dally Ittefaq while he was a
Minister, such acts were amenable to writ jurisdiction under Article 102(2)(a) of the
Constitution. The learned Counsel further submitted that to invoke writ jurisdiction

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 the acts impugned are required to be done by a person in the service of the Republic
or a local authority but not required to be committed in connection with the affairs of
the Republic or of a local authority.
15. Thus, upon consideration of the submissions of the learned Counsels for both
sides on point of maintainability of all the writ petitions, we are of the view that in
Writ Petition Nos. 3773 of 1996 and 3834 of 1999 the acts challenged were
committed by Mr Anwar Hossain not in connection with the affairs of the Republic or
a local authority but in the affairs of Ittefaq Group of Publication Ltd in his capacity
as Executive Director-II of the Company and as the Printer, Publisher and Editor of
the Daily Ittefaq while he was a Minister and not in the affairs of the Republic or of a
local authority and, as such, these two writ petitions are not maintainable.
1 6 . In support of his argument that Writ Petition No. 2746 of 1997 is not
maintainable, inasmuch as the writ petitioners failed to invoke alternative statutory
remedy by filing appeal before the Press Appellate Board under section 12A(3) of the
Printing Presses and Publications (Declaration and Registration) Act, 1973 as the
Additional District Magistrate. Dhaka by the letters dated 4-2-1997 and 3-4-1997
Annexures-E & G virtually refused to authenticate the declaration made by the
respondent Mr Mainul Hosein by his letter dated 12-3-1997, Annexure-E. Mr Huq
cited the case of Madan Lal vs. Sub-Divisional Magistrate and another reported in AIR
1965 Madhya Pradesh 18 and submitted that in that case it was held that for not
preferring appeal as provided in section 8C of Press and Registration of Books Act,
1867 to the Appellate Board, it would be altogether improper for the High Court to
issue any direction to the Magistrate asking him to refuse to authenticate a
declaration or cancel a declaration under the Act. He then cited the case of Dhaka
Warehouse Ltd and another vs. Assistant Collector of Customs and others reported in
1991 BLD (AD) 327, in that case it was held as under:
In principle where an alternative remedy is available an application under
Article 102 may not be entertained to circumvent a statutory procedure.
There are however, exceptions to the Rule. Without attempting an exhaustive
enumeration of all possible extraordinary situations we may note a few of
them. In spite of an alternative statutory remedy an aggrieved person may
take recourse to Article 102 of the Constitution where the vires of the statute
or a statutory provision is challenged, where the alternative remedy is not
efficacious or adequate, and where the wrong complained of is so
inextricably mixed up that the High Court Division may for the prevention of
public injury and the vindication of public justice examine that complaint. It
is needless to add that the High Court Division is to see that the aggrieved
person must have good reason for bypassing the remedy.
17. It may be stated here that the question of alternative remedy is more a question
of discretion and not a question of jurisdiction of the Court.
18. In view of the discussions above, we are of the view since the interpretation of
constitutional provision in Article 147(3) of the Constitution is involved in the matter
and the appeal under section 12A(3) of Printing Presses and Publications (Declaration
and Registration) Act, 1973 is not an adequate and efficacious remedy, rather the
High Court Division in writ jurisdiction is a more effective forum in the matter of
interpretation of constitutional provision and, as such, we are unable to accept the
submission of Mr Huq that for not exhausting alternative remedy the writ petitions
were not maintainable.

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 19. Mr Akhter Imam and Mr Abdur Razzaq, the learned Counsels for the respondents,
with reference to Article 147(3) of the Constitution and various sections of the
Printing Presses and Publications (Declaration and Registration) Act, 1973 submitted
that by operation of Article 147(3) of the Constitution Mr Anwar Hossain ceased to be
the Executive Director-II in the Ittefaq Group of Publication Ltd and also the Printer.
Publisher and the Editor of the dally Ittefaq the moment he assumed the office of the
Minister. They further submitted that the provision of Article 147(3) is mandatory in
nature and hence the bar created by sub-Article (3) of Article 147 against holding the
office, post or position of the Printer. Publisher and Editor is total and absolute
meaning that the bar is permanent and is not temporary in nature so long Mr Anwar
Hossain held the office of the Minister. In support of their contention they cited the
case of Osman Gazi Mondal vs. Mainuddin Ahmed and others reported in 27 DLR
(AD) 61. They also submitted that the proviso to Article 147(3) only declares that the
offices specified in sub-Article (4) of Article 147 including the office of the Minister
are not the offices of profit and not that it excludes the office post or position held by
the Minister in any company, body or association immediately before becoming the
Minister from being the office, post or position of profit or emolument. The learned
Counsels further submitted since Mr Anwar Hossain ceased to be the Printer,
Publisher and Editor of the dally Ittefaq on his assumption of office as a Minister he
was not competent under the Printing Presses and Publications (Declaration and
Registration) Act, 1973 to appoint Mr Rahat Khan as the acting editor and inform or
notify the same to the District Magistrate or Additional District Magistrate. Dhaka and
Mr Anwar Hossain was required to make a fresh declaration for authentication with Mr
Rahat Khan as editor under sections 7 and 12 of the said Act, 1973 They further
argued that the Additional District Magistrate. Dhaka by accepting the mere intimation
of Mr Anwar Hossain that Mr Rahat Khan was appointed by him as an acting editor
during his absence without requiring Mr Anwar Hossain to make a fresh declaration
for authentication that Mr Rahat Khan was appointed as the editor acted illegally.
Accordingly, Annexures-E and G in Writ Petition No. 2746 of 1997 are liable to be
struck down as unlawful.
20. In this connection, Mr Rafique-ul-Huq further submits that from the statements
made in the aforesaid two writ petitions it cannot be said that the writ-petitioner has
been able to make out any case for enforcement of the fundamental right regarding
press freedom and no prayer has been made in these two writ petitions seeking
enforcement of the fundamental right under Article 39(1) of the Constitution as is
claimed now. Mr Huq in support of his contention cited the case of Mujibor Rahman
(Md) vs. Government of Bangladesh and others reported in 44 DLR (AD) 111 and
submits that such an argument of the learned Counsels for the respondents should
have been rejected outright and these two writ petitions should have been held not
maintainable. In the case of Mujibur Rahman and others vs. Bangladesh reported in
44 DLR (AD) 111, referred to above, it was held that an aggrieved person may out of
desperation or just for taking a sportive chance in the summary writ jurisdiction
allege contravention of some fundamental right which may turn out to be frivolous or
vexatious or not even remotely attracted in his case. The Court is however, to be on
guard so that the great value of the right given under Article 102(1) is not frittered
away or misused as a substitute for more appropriate remedy available for an
unlawful action involving no infringement of any fundamental right."
21. The learned Counsels for the respondents, on the other hand, submit that the
impugned act of Mr Anwar Hossain to continue as the Executive Director-II of the
Company and also as the printer, publisher and editor of the daily Ittefaq is definitely
violative of the fundamental right of press freedom under Article 39(1) of the

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 Constitution and the writ petitions under reference should be taken to have been filed
under Article 102(1) for enforcement of the fundamental right. So the Writ Petition
No. 3773 of 1996 and Writ Petition No. 3834 of 1999 are maintainable as the
impugned act is violative of fundamental right and the same is not required to be
committed in connection with the affairs of the Republic or a local authority. In the
circumstances, taking into consideration the arguments put forward by the learned
Counsels for both the parties and the decisions cited above, we are of the view that
Writ Petition No. 3773 of 1996 and Writ Petition No. 3834 of 1999 are not
maintainable on this count also.
22. Regarding the submissions of Mr Huq that because of pendency of civil suit on
the same points the writ petitions are not maintainable, Mr Akter Imam submits that
pendency of civil suit does not always make the writ petition not maintainable. He
further submits that since in the present case interpretation of Article 147(3) of the
Constitution is involved pendency of civil suit should not be a bar to the filing of the
writ petition. The submissions of Akter Imam appear to be of substance.
23. We have already indicated that the learned Counsel for the appellant submitted
that since the Rules have become infructuous for the reason that Mr Anwar Hossain is
no longer a Minister, a decision on the interpretation of Article 147(3) of the
Constitution would be merely academic and the Courts are and should be reluctant to
decide a constitutional point merely as a matter of academic importance.
2 4 . Mr Akter Imam and Mr Abdur Razzaque, the learned Counsels, strenuously
argued that in all fairness proviso to sub-Article (3) of Article 147 of the Constitution
should not be construed to allow the persons holding the offices mentioned in sub-
Article (4) to retain their prior office, post or position of profit or emolument. The
learned Counsels further argued that interpretation of Article 147(3) is still necessary
although Mr Anwar Hossain is no more a Minister. They also argued that it is also a
question for determination whether Mr Anwar Hossain has ceased to be the Executive
Director-II of the Company and the printer, publisher and editor of the dally Ittefaq
after he accepted the office of a Minister or he would cease to be a Minister when he
retained his former post of profit or emolument in the Company. In this connection it
may be pointed out that the writ petitions have not been drafted in that manner as in
Writ Petition No. 3773 of 1996, the holding of the post of Executive Director-II and
editor, printer and publisher of the daily Ittefaq by the appellant while he was a
Minister was only called in question. Since we have held that all the writ petitions
have become infructuous as the appellant Mr Anwar Hossain left the office of Minister
long before the hearing of the writ petitions we do not like to enter into the question
of interpretation of Article 147(3) of the Constitution in the circumstances of the case
as, in our view, the same would be purely academic and the Courts always would be
slow in giving any decision on a Constitutional provision when it would be a merely
academic one.
25. We also find substance in the submission of Mr Huq that the impugned orders
contained in Annexures A-A(2) passed by the appellant having been withdrawn
subsequently by him, the Writ Petition No. 3834 of 1999 became infructuous on this
count also as an order subsequently withdrawn/ rescinded is to be considered as no
order.
2 6 . Mr Razzaque argued that in all fairness the proviso to Article 147(3) of the
Constitution must not be construed in such a way as to allow the persons holding the
offices mentioned in the sub-Article 4 of Article 147 to retain their previous post or

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 position of profit or emoluments because that would render the Constitution
undemocratic. The learned Counsel, by citing examples from the English and
Australian system of Parliament, submitted that a Minister of those countries are
subject to rules, guidelines and requirements in order to ensure that no conflict arises
between their private interest and public duties. In reply Mr Huq submits that proviso
to Article 56(2) of the Constitution has allowed technocrats to be appointed as
Ministers without being members of the Parliament. This is not unconstitutional
though may appear to be undemocratic. So, according to Mr Huq, this argument of Mr
Razzaque is not tenable. In view of our discussion above, we are of the view that
since the appellant is no more a Minister, the Rules in all the writ petitions have
become infructuous and, as such, we are reluctant to examine and decide whether in
view of the provisions of Article 147(3) with its proviso, the holding of the post of
Executive Director-II and editor, printer and publisher of the dally Ittefaq by the
appellant after he became a Minster was violative of the Constitutional Provisions or
not as that would amount to answering merely an academic question.
All the appeals are therefore, allowed. There is no order as to costs. The connected
civil petition is disposed of in the light of the Judgment in the appeals.

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