The Registrar in the Writ Court: Article 102 Jurisdiction Over Statutory Registrars in Bangladesh

This article examines two categories of Registrar and the state of the authorities on their amenability to challenge under Article 102 of the Constitution of Bangladesh. The two categories raise different legal questions and are supported by different bodies of case law.

The Constitutional Framework

Article 102 of the Constitution of Bangladesh confers jurisdiction on the High Court Division to issue directions, orders, or writs — including the writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto — for the enforcement of fundamental rights and for certain other purposes. On the administrative side, Article 102(2) allows the High Court Division to intervene where a person performing functions in connection with the affairs of the State or a local authority has acted without lawful authority, or has failed to do what the law requires.

Two structural conditions frame the jurisdiction. First, the body or officer being challenged must be one that is amenable to judicial review — that is, it must perform public or statutory functions, not purely private ones. Second, the applicant must not have an equally efficacious alternative remedy available by law, unless the case falls within one of the recognised exceptions to that general rule.

In practice, disputes involving decisions of statutory Registrars — the Registrar of Joint Stock Companies and Firms (RJSC), the Sub-Registrar for land documents, and similar officers — regularly raise both of these conditions. The case law, examined below, resolves them differently for each category.

The RJSC Registrar: An Established Line of Authority

The amenability of the Registrar of Joint Stock Companies and Firms (more recently the Registrar of Joint Stock Companies and Firms under the Companies Act, 1994) to writ jurisdiction has been established by Bangladesh courts for over six decades. The line of authority is clear and has only deepened over time.

As early as 1960, the High Court of East Pakistan addressed the question directly. In Abdur Rab Choudhury v. Registrar of Joint Stock Companies and 2 Others (Writ Petitions Nos. 6, 7 and 8 of 1960, LEX/HEPK/0047/1960), a mandamus was sought requiring the Registrar to correct entries in the register of companies that had been made unlawfully under ministerial pressure. The Respondents challenged the petitioners’ standing, but the Court rejected the submission that no writ lay against the Registrar. In clear terms, Akbar J. stated:

“It would be a great mistake to suppose that the High Court has no jurisdiction over the Registrar in such cases as those now under consideration. The duty of the Registrar is to perform his duty and if he fails to do so he becomes immediately amenable to the jurisdiction of this Court.”

The Court further held that the Registrar’s decision was one amenable to mandamus because it was “exercising jurisdiction” and because one of the recognised bases for mandamus intervention was established: that the Registrar had been influenced by extraneous considerations — namely, a ministerial direction — which he ought not to have taken into account.

That foundational position has been confirmed and elaborated in the High Court Division of Bangladesh. In Tea Hung Packaging Co. Ltd. v. The Registrar, Joint Stock Companies and Firms (Writ Petition No. 10164 of 2007, LEX/BDHC/0416/2009), the petitioner challenged a decision by the Registrar to file a criminal complaint under Section 397 of the Companies Act, 1994 in respect of a document that did not fall within the scope of that provision. The Respondent raised maintainability. The High Court Division held the petition maintainable, holding:

“The Registrar, being specially designated by a statutory scheme as aforesaid, remains exposed to judicial review for ultra vires or unlawful acts.”

The Court’s reasoning in Tea Hung rests on the Registrar’s unique statutory position: the Companies Act confers on the Registrar a specific power and function, and places him in a special institutional relationship with the court system (for instance, by exempting him from personal attendance before the court trying an offence under Section 393(2)(b)). It is precisely because the Registrar occupies that specially designated statutory role that his acts or omissions are reviewable even where other complainants acting in a similar capacity would not be.

The practical consequence is significant. A decision by the RJSC Registrar that is ultra vires his statutory powers — a refusal to register that is contrary to the Companies Act, an inclusion or exclusion from the register made without legal basis, or the institution of a complaint under statutory provisions that do not cover the conduct in question — can be challenged by writ in the High Court Division. The jurisdiction is not discretionary in the sense of being uncertain; it is established. What remains discretionary, in the ordinary sense, is whether the Court in a given case will grant leave and ultimately make the Rule absolute.

The Sub-Registrar for Land Registration: Jurisdiction by Practice

The position of the Sub-Registrar exercising functions under the Registration Act, 1908 stands on different footing. The authorities establish that writ proceedings against a Sub-Registrar are maintainable in appropriate circumstances, but the case law does not contain the same explicit statement of amenability that exists for the RJSC Registrar. The jurisdiction is established by practice rather than by direct declaration.

In Md. Abdus Sattar Howlader v. Sub-Registrar of Morelganj and Others (Writ Petition No. 221 of 1973, LEX/BDHC/0091/1977), a Rule Nisi under Article 102 was issued directing the Sub-Registrar to show cause why he should not be directed to register a sale deed he had refused. The Sub-Registrar appeared through the Deputy Advocate General and contested the matter on its merits. No objection was taken to the writ jurisdiction of the High Court — neither by the Respondent nor by the Court. The writ was entertained and the rule was decided on its merits (ultimately discharged, on the ground that the vendor’s affidavit requirement under P.O. 142/72 was properly applied). The proposition flowing from Howlader is not an express one: it is that a Rule Nisi under Article 102 against a Sub-Registrar was issued and heard without any question as to jurisdiction, which itself confirms the jurisdiction is regarded as available.

However, the cases also reveal a structural constraint that applies specifically in the land registration context. The Registration Act, 1908 provides its own internal remedies for aggrieved parties. Section 73 allows a party to appeal against a refusal to register to the District Registrar (or, in certain cases, the Registrar). Section 77 allows a party to bring a civil suit for a decree directing registration where the Registrar refuses after enquiry under sections 73 and 74. In Azimuddin Bhuiyan v. District Registrar, Dacca (Petition No. 106 of 1966, LEX/HEPK/0023/1968), the High Court of East Pakistan discharged a Rule Nisi against a Sub-Registrar on the ground that section 77 provided an adequate remedy in civil court. The Court stated that the Registration Act “has provided for adequate remedy against such refusal for registration by the registering authority” and that the petitioner should have availed of that route.

The effect of these two decisions, read together, is this: the writ jurisdiction against a Sub-Registrar is available in principle, but it will be exercised only where the Registration Act’s own remedial machinery does not provide an equally efficacious alternative. Where the sub-registrar’s refusal falls squarely within the scope of sections 73 and 77 — refusal of a regular registration application — the civil suit route under section 77 is the appropriate remedy, and the writ will ordinarily not be entertained. But where the Sub-Registrar’s conduct goes beyond mere refusal and involves an act that is wholly outside his statutory authority, or where the Registration Act machinery is for some reason unavailable or inadequate, Article 102 remains a live remedy. The Howlader case illustrates one such situation: the section 73 appeal had already been pursued and was exhausted; the Sub-Registrar then refused to comply. In that context, the writ was the appropriate, and only remaining, route.

Two Registrars, Two Questions

The distinction between the two categories is, at bottom, a distinction about what the relevant statute provides. The Companies Act, 1994 confers a uniquely designated statutory role on the RJSC Registrar and does not provide a self-contained internal remedy for every kind of unlawful act he might perform. The consequence is that his acts are broadly reviewable by writ. The Registration Act, 1908, by contrast, provides a structured internal hierarchy of appeal and a civil court remedy, with the result that the writ is available against the Sub-Registrar only where that machinery does not adequately cover the complaint.

For practitioners, the implication is practical. A challenge to a decision of the RJSC Registrar — an unlawful refusal to register a company, an improper entry in or deletion from the register, an ultra vires complaint filed under the Act — can be brought directly by writ. A challenge to a Sub-Registrar’s conduct requires a preliminary analysis of whether the Registration Act’s own remedies have been exhausted or are inadequate, before the writ route opens.

Conclusion

The writ jurisdiction of the High Court Division over statutory Registrars in Bangladesh is established, but its precise scope varies by category of Registrar and by the statutory framework within which that Registrar operates. For the RJSC Registrar, the line of authority from 1960 to 2009 is explicit and unambiguous: he is immediately amenable to the jurisdiction of the Court when he fails to perform his duty or acts in excess of his statutory powers. For the Sub-Registrar under the Registration Act, the jurisdiction exists by practice and principle, but is disciplined by the adequate remedy rule: the writ lies where the statute’s own machinery is unavailable or has been exhausted, not as a parallel route to the civil court remedies the Act already provides.

Understanding which side of this line a proposed challenge falls on is the first question any practitioner should ask before advising on the appropriate forum.