Group- A.F.

Shahab Uddin

Case Name:
A.F. Shahab Uddin Ahmed v National Shooting Federation,Bangladesh
and Others, 2010.
 Fact

Respondent No. 4, the Rajdhani Unnayon Kartipakhya (RAJUK), leased the subject
property to the Respondent No. 1, National Shooting Federation , for a period of 99 years
as a token consideration of taka 1/- (one) only. The stipulation was to the effect that the
right, title and interest of the demised property remains with the "LESSOR" and the "
National Shooting Federation of Bangladesh shall use the demise property for the purpose
of their Shooting Range and shall not use the said property for any purpose under any
circumstances whatsoever"
Whereas the executive committee of the Respondent No. 1, in violation of the aforesaid
clause, resolved in its meeting, held on 14.02.2009, that it would lease part of the property i.
e. the ground and first floors of the front building, to a Super Market Chain, the Respondent
No. 6, pursuant to which an agreement has also been sealed between them on 09.04.2009,
for the lease of the aforementioned floors for a period of 12 years.
 The present petitioner is a member of the Comilla Rifle Club, which is a member/
affiliated club of the Respondent No. 1, National Shooting Federation, Bangladesh. He has
been associated with the shooting sports for the last four decades and has discharged
various functions entrusted to him by the National Shooting Council (NSC). As he had
dedicated his entire youth for the Federation, he, being aggrieved by the lease in question,
file the present in writ petition to declare that the impugned lease agreement is passed
illegally, without lawful authority and is of no legal effect.
 Issues
1) whether the petitioner is stuffed with sufficient interest to move this
Court;
2) Whether the body has to be a statutory emanation to be amenable to
writ jurisdiction;
3) Whether the Respondents are liable to be thwarted with the craved
directions.
 Court's responses as to the preceding issues:

Issue-1:- The issue-1 deals with the question of Locus Standi. To address the issue, the
court, in its para. 37 of its judgement, said, “The petitioner is admittedly a member of
Comilla Rifle club. Admittedly, again, his club is affiliated with the Respondent No. 1, i.e.,
NSF. Besides that, the petitioner has been directly involved with the sports of shooting for
decades together. So, the argument impeaching his locus standi, in our introspection,
does not hold any water. In any event, since the Respondent is a body that thrives on tax
payers' money and attracts general public interest, we would have entertained the
petition as a public interest litigation even if he was fully bare of locus standi.”
Issue-2:
● Referring the context how the question of this issue is topical not only in our jurisdiction but
also in other parts of the world where the relics of the English common law pervades, the
Court discussed the English traditional view in this regard, which was restrictive and source or
power oriented. Further, the recent flexible view as observed in 'Data-fin Case' is discussed
elaborately and the Court has drawn its conclusion in terms of the present position of English
law that they (English Courts) are now inclined to analyse the type of function performed by
the decision maker and hence , where a body is carrying out a public function, such as that
undertaken by a non-government regulatory organization in relation to an area of activity, which
is subject to its control, the courts will consider intervening to require compliance with the
principles of judicial review.
Having dissected the English Law position, the Court then concentrated its
attention to our own system. As to the Court's observation, our position is different
from that of the U.K., since we do have Article 102 and the same has two diverged
types of situation. While Article 102(1) of our constitution, which is attracted in the
event of violation of Fundamental Rights, lies against any person or authority, i.e.,
both the public and private bodies, Article 102(2), per contra, lies against ‘a person
performing any functions in connection with the affairs of the Republic or of a local
authority’. It was also stated that the Bengal Version of Article 102(2) renders it
more clear that Article 102(2) does not say that the body or the person concerned
shall be a statutory one or local authority.
Thenceforth, the Court started to cite some cases of our jurisdiction in consonance with the
preceding view. Some of these are Zakir Hossain v Bangladesh (2002)[ In which, a mobile phone
provider company is considered a 'person performing functions in connection with the affairs of
the Republic', as it's agent and is, as such amenable to review under Article 102(2) of the
Constitution,notwithstanding its own non-statutory status.], Farzana Moazzem v. Securities and
Exchange Commission, 2001 [ Where the Court proclaimed that a body, though not created by a
statute, would nevertheless be amenable to writ jurisdiction if it performs the job as a subordinate
functionary or as an instrumentality of a statutory body by performing several duties cited in a
statute or in the preamble to a statute ], Conforce Ltd. v. Titas Gas Transmission and Distribution
co. Ltd. 42 DLR (HC) 33.
As observed in this case, the similar view was adopted in India. The Indian Supreme Court in
the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti
Mahotsov Smarak Trust V. VR Rudani, expressing that the term authority used in Article 226
must receive a liberal meaning, observed 'The word any person or authority used in Article
226 are therefore not to confine to statutory authorities and instrumentalities of the state.
After a exhaustive recital, the Court came to the conclusion, swamped by the enunciation
put on record in Farzana Moazzem v. Securities Exchange Commission and in support of the
decisions of English and Indian cases, that the respondent the Respondent No. 1 Federation
is indeed engaged in "Performing the function in connection with the affairs of the Republic"
by way of providing right to recreation and leisure
Issue-3: In para. 118 of the judgement, it's opined that the Court need not
travel a long to answer the issue. It also said that it is quite conspicuously,
discernibly, explicitly and unambiguously stated in the lease agreement that the
Respondent Federation shall not sublet any part of the premises, shall not use
any part of it for any purpose other than shooting sports. And why should such
an embargo not be there? After all the land was a public property, created and
existed at taxpayer' money: it has in fact been gifted to the Federation, virtually
free of a price. As such, the lease is declared as illegal and of no legal effect by
making the rule absolute.
 Principles:

1. A person or body under article 102(2) is not required to be a statutory one or

local authority, perhaps it will suffice that such person or authority has acted
any functions in connection with the affairs of the Republic or of a local
authority.
2. The Court can entertain a writ petition,even if the petitioner is bare of locus
standi, considering it as a PIL, in which the respondent is a body that thrives
on taxpayers' money and attracts general public interest.
3. As far as Article 102(1) is concerned i.e., when
fundamental rights are invoked, the question of status of
the impugned person or authority loses it's relevance
because the phrases "any person or authority", in the said
sub-Article necessarily refers to a person or an authority,
irrespective of his/its status.
 Our Observation with Impact Analysis:
As to the Maintainability of the Writ:
Locus Standi:
● Settling Locus Standi issue without unnecessary constitutional referencing
(Para.37)
● PIL- A person in general qualifies him as ‘a person aggrieved’, when the
impugned authority thrives on the money of taxpayers and attracts general
public interest.
As to Interpretation:
Textual Interpretation:
● Vide Article 102(1), in case of violation of fundamental rights, a writ is
maintainable against any person or body regardless of its status.(P.81)
● Article 102(2) does definitely not say that the body or person concerned shall
be statutory one or local authority. What it really says is that the body or the
person concerned shall be the one that "performs the functions in connection
with affairs of the Republic or local authority. (P.83)
● Emphasised on the Bangla text of the Constitution; Unwelcome use of the
word “ Bengali”
Originalism:
● Intention of the founding fathers of the Constitution ; the use of ‘in connection
with’ is significant ( Otherwise, they wouldn’t have inserted those additional
words)
Use of FPSP:
● Use of Aeticle 15 vis-a-vis Mandate of Article-8(2); providing sports and other
recreational facilities to the citizenry is one of the bounden obligations of the
state vide Article 15.(P.98)
Interpretation of an emanation of Constitutional Borrowing:

● In consonance with the general norms of the interpenetration of a

constitutional provision, which is an emanation of Constitutional Borrowing.
(Para.39)

As to References:
Contextuality:
● Appropriate Opening Sentence backed by the Context. (Para.38)
As to References:

Contextuality:

● Para.92 should have been merged with Para.91 ; furnishing distorted idea.
● Unnecessary, Trackless and Clumsy referencing. (Para. 94)
● Unnecessary Constitutional Borrowing ; text is axiomatic. (para. 81)
● Referring Article 102(2) in a wholesale basis without delineating Article 102(2)(a) [
Para. 82+ Para.83]
Constitutional Borrowing:
● Data-fin case is not transplanted in our jurisdiction. (Para.84)
● R v. Panel on Take-over as ‘Tide-Turnig Case’ (Para.68)
● Necessary Constitutional Borrowing of foreign judgements to lend support to
the Court's view. (Para.87)
● Referred Article 226 of Indian Constitution along with Anadi Mukta case, but didn’t
differentiate between Article 226 of Indian Constitution and our Article 102(2); failed
to glorify Article 102(2). (Para.91)
● Difference between English and Bangladeshi position (Para.78)
 Miscellaneous:

● The Court’s take as to Farzana Moazzem case is incorrect; such interpretation is

neither innovative nor expanding. (Para.89)
● Chronological Referencing (Para.77)
● A conclusive statement must be backed by a literature review and legal
analysis. (Para.95)
Q& A
Thank You