A. M. MAHIUL HUQ vs MD. SHAMSUL ALAM AND Another
This matter concerns a dispute over the appointment and cancellation of a Nikah Registrar in the Chittagong district. The petitioner, an existing Nikah Registrar, challenged the appointment of the first respondent as a second Nikah Registrar for the same Union Councils. The petitioner successfully appealed to the Secretary, Judicial Department, Government of East Pakistan, who cancelled the respondent's appointment. The respondent challenged this cancellation in the High Court, which ruled that the Secretary lacked the legal authority to cancel the appointment, as the power to revoke or cancel such a license rested solely with the Union Council under the relevant rules. The High Court further interpreted the law to allow for multiple Nikah Registrars within a Union Council, provided their jurisdictions were distinct. Upon the petitioner's appeal for special leave, the Supreme Court of Pakistan affirmed the High Court's decision. The Court held that because the cancellation order was issued by an incompetent authority, it was legally unsustainable, thereby rendering the challenge to the underlying statutory interpretation moot in the present proceedings.
- Does the Provincial Government have the authority to cancel the appointment of a Nikah Registrar under the East Pakistan Muslim Family Laws Rules, 1961?
- Can more than one Nikah Registrar be appointed for the same Union Council?
- Is an order passed by an incompetent authority sustainable in law?
- Section 5(2), Muslim Family Laws Ordinance 1961
- Rule 7(5), East Pakistan Muslim Family Laws Rules 1961
- Article 98, Constitution of Pakistan 1962
1. HAMOODUR RAHMAN, C. J.-The first respondent in this case was appointed a Nikah Registrar of ten Union Councils within Rangunia Police Station in the district of Chittagong on the 30th of May 1966, as the petitioner, who had been appointed earlier as a Nikah Registrar for the same Union Councils, was finding it difficult to cope with the work in the area. The petitioner appealed to the Government against this appointment under sub-rule (5) of rule 7 of the East Pakistan Muslim Family Laws Rules, 1961, framed under the Muslim Family Laws Ordi--nance, 1961. The appeal was heard by the Secretary, Judicial Department, Government of East Pakistan, who by his order of the 4th of April 1968, cancelled the appointment of the said respondent, Shamsul Alam.
2. The respondent challenged this order of cancellation by a petition under Article 98 of the late Constitution in the High Court of East Pakistan. The present petitioner was a party to those proceedings. He supported the order of cancellation on the ground that two Nikah Registrars could not be appointed for the same area. The High Court on the wording of subsection (2) of section 5 of the Muslim Family Laws Ordinance, 1961, took the view that more than one persons could be appointed as Nikah Registrars for a Union Council but there could not be two Nikah Registrars for the same ward. All that was required to be done, therefore, was to distribute the wards amongst the two Registrars in such a manner that their jurisdictions did not conflict.
3. The High Court also came to the view that under sub-rule (5 of rule 7 of the East Pakistan Muslim Family Laws Rules, 1961, it is the Union Council which could revoke or cancel the licence and not the Provincial Government. On this ground the order of cancellation passed by the Secretary, Judicial Department, was found to be bad and was declared to be without lawful authority.
4. The petitioner now seeks special leave to appeal and seeks to challenge the vires of subsection (2) of section 5 of the Ordinance of 1961, but in view of the fact that the order of cancellation was, in this case, made by an incompetent authority, the order was clearly not sustainable and was rightly set aside by the High Court. The petitioner has not been able to show as that the High Court was wrong in coming to this conclusion. This petition is, accordingly, without any substance and is dismissed.