Verdict Under Light-Writ Petition No. 9732 of 2019

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BD Legal Times September 2020 (HCD) 46
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 9732 of 2019.

J. B. M. Hassan J
Md. Khairul Alam J

Judgement
4th March, 2020

City of London Investment Management Company Limited.
…..Petitioner

Vs

Bangladesh Securities and Exchange Commission and others.
….. Respondents

 

The Government can direct the BSEC to take any action or pass any order in accordance with section 16 of the Act, 1993. The BSEC has also got authority under section 20A of the Ordinance, 1969 to pass any order or direction for the interest of investors or capital market or for the development of capital market.
…. Para 36

Unit holders are the authority to decide the tenure of the Fund. But at the same time it has also been settled in the said decision that under section 20A of the Ordinance, 1969 the BSEC has the absolute authority with a non obstante clause to take any decision in respect of the capital market. Besides, the Government has the authority under section 16 of the Act, 1993 to direct the BSEC for taking any decision for the interest of the capital market.
…. Para 39

Both the Government as well as the BSEC have the authority under the parent enactments i.e the Act, 1993 and the Ordinance, 1969 to take any decision including to extend the tenure of the close end mutual fund. Thus, the extension of tenure of Fund was done in accordance with laws. Therefore, in this situation rule 50 Kha of the Rules, 2001 will not apply for taking consent of the unit holders for extending tenure of the Mutual Fund.

…. Para 41

Laws Referred:
wmwKDwiwUR I G·‡PÄ Kwgkb (wgDPzqvj dvÛ) wewagvjv, 2001
Securities and Exchange Ordinance, 1969
Bangladesh Securities and Exchange Commission Act, 1993
Depository Act, 1999
Income Securities Act, 1974
Delaware Statutory Trust Act

Cases Referred:
Securities and Exchange Commission and others vs. Md. Ali Zaman and others, 22 BLC (AD) 8
Mian Fazal Din vs. The Lahore Improvement Trust, Lahore Anjumane Mohammadi, 21 DLR (SC) 225
S. N. Kabir vs. Mrs. Fatema Begum and others, 34 BED (AD) 165
Md. Ismail and others vs. The State, 21 DLR (SC) 161
TaeHung Packaging (BD) Limited and others vs. Bangladesh and others, 18 BLC (AD) 144
Kartic Das Gupta vs. Election Commission of Bangladesh and others, 8 ADC 578
Dr. Mohiuddin Farooque vs. Bangladesh represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others, 49 DLR (AD) 1
SP Gupta and others vs. President of India, AI R 1982 (SC) 149

Dr. Sharif Bhuiyan with Mr. Ahmed Zaker Chowdhury – Advocates for the Petitioner
Mr. Mahbubey Alam, Senior Advocate with Mr. A. M. Masum and Mr. Farhad Bin Hossain and Mr. Sayed Mahsib Hossain – Advocates for the Respondent No.1
Mr. Murad Reza with Mr. M. Imtiaz Farooq and Mr. Md. Faisal Islam – Advocates for the Respondent No.3
Mr. Hironmay Halder – Advocate for the Respondent No.2

Judgement
J.B.M. Hassan, J:
This Rule Nisi was issued on an application under article 102(2) of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why the inaction/failure of the respondent No.l in stopping the extension of tenure of the EBL First Mutual Fund for another 10 years in violation of rule 50 Kha of ÔwmwKDwiwUR I G·‡PÄ Kwgkb (wgDPzqvj dvÛ) wewagvjv, 2001Õ shortly, the Rules, 2001 should not be declared to be without lawful authority and of no legal effect and as to why the respondents should not be directed to liquidate the EBL First Mutual Fund and distribute the proceeds thereof, to the unit-holders of the fund and or pass such other or further order or orders as to this Court may seem fit and proper.
2) Relevant facts leading to issuance of the Rule Nisi are that the petitioner, incorporated under the laws of England and Wales, is an investment management firm. It has been making investments on behalf of its clients in emerging share markets since 1991. The petitioner, on behalf of its clients, is a substantial unit-holder in several publicly listed Close-End Mutual Funds in Bangladesh, including EBL First Mutual Fund (the EBL Fund). The EBL Fund is approved by the Bangladesh Security and Exchange Commission (the BSEC). The Trustee of the said fund is Investment Corporation of Bangladesh (the respondent No. 2), shortly, the ICB and it is managed by the Bangladesh RACE Management Private Company Limited (the RACE) i.e respondent No.3.
3) The EBL Fund is the first bangladeshi commercial bank sponsored mutual fund of Tk. 100 crore divided into 100,000,000 (ten crore) units at par value of Tk. 10 each. The petitioner currently holds 11,304,448 units in the Fund. The Fund was listed on 19.08.2009 for an initial tenure of 10 years and so it was scheduled to be expired on 19.08.2019. Paragraphs No. 2.5 and 7.1(1) of the Fund’s prospectus as well rule 50 Kha of the Rules, 2001 provide flexibility to the unit holders to extend the tenure of the fund beyond the initial 10 years if 75% of the unit holders support such an extension at an extra ordinary general meeting (EGM) to be organized at least one year ahead of the expiration date of the Fund.
4) On 02.10.2018 the BSEC (respondent No.l) issued an order generally allowing listed close end mutual funds to extend their tenure for another 10 years. However, the BSEC order clearly states that if any listed fund does not desire to extend its tenure, the option of its liquidation shall also continue to be in existence and in that case, the Fund can distribute the proceeds to the unit holders upon expiry of its existing tenure. Thus, it is clear from the language of the BSEC order that the extension of the tenure of the Funds would depend on the desire of the respective Fund concerned. The BSEC order did not exempt the listed mutual funds from applicability of the provisions of the 2001 Rules including rule 50 Kha of the Rules, 2001.
5) Based on unofficial news from the market to the effect that the respondent No.3 (the RACE) would unilaterally extend the tenure of the EBL Fund without holding any vote of the unit holders, the petitioner as a precautionary step, made representations to the respondents No. 1 and 2 BSEC and ICB respectively to take steps so that respondent No. 3 (the RACE) cannot unilaterally extend the tenure of the EBL Fund in violation of the rule 50 Kha of the 2001 Rules. The petitioner has also made a representation to the respondent No.3 (the RACE) requesting it to refrain from extending the tenure of the EBL Fund without a vote of the unit holders. Despite the representations made by the petitioner, on 05.08.2019, the respondent No.3 (the RACE) made a unilateral announcement through the Dhaka Stock Exchange’s (DSE) website in the following manner:
“Bangladesh RACE Management PCL has informed that by order of the Government of Bangladesh, the Bangladesh Securities and Exchange Commission (BSEC) through the exercise of its power accorded by the Securities and Exchange Ordinance, 1969 (XVII of 1969) Section 20A has given consent to extend the tenure of the existing EBL First Mutual Fund (EBL ISTMF) for another 10 years in relaxation of all applicable Rules and Regulations and procedures. In Continuation, the EBL First Mutual Fund is declared extended up to August 18, 2029.
6) By the above announcement, respondent No.3 (RACE) has decided unilaterally and in violation of the applicable legal provisions, to extend the tenure of the Fund till 18.08.2029 without any consultation with, or conducting a vote of, the unit-holders in an EGM. In this context, the petitioner through its counsel, served a legal notice dated 08.08.2019 to all the respondents with request to recall and cancel the announcement made by the respondent No.3 purporting to extend the Fund and thereby to liquidate the Fund and distribute the proceeds thereof to the unit holders of the Fund. But the respondents did not pay heed to the petitioner’s prayer till date. In this backdrop, the petitioner filed this writ petition and obtained the Rule as well as the interim restraint order.
7) The Bangladesh Securities and Exchange Commission (BSEC) as respondent No.l has filed an affidavit in opposition controverting the statements of the writ petition. Contentions of this respondent, inter alia, are that the BSEC as a regulatory body can issue necessary directives to protect interest of the investors in accordance with section 20A of the Securities and Exchange Ordinance, 1969 (the SEC Ordinance, 1969) which will prevail over all other laws as well as documents. BSEC’s order dated 02.10.2018, has given an opportunity to unit holders to liquidate the Fund, if 75% units holders ask the Trustee to call meeting and take decision in this regard. However, no unit holders except the petitioner raised objection against the extension of tenure of closed end mutual funds. Moreover, in case of ambiguity and confusion arose in explanation of any terms and condition with the provisions of the SEC Rules, 2001, the Commission’s decision shall be final and accordingly, the BSEC issued the office order dated 02.10.2018 in accordance with the provisions of law.
8) The BSEC further contends that the Ministry of Finance closely observed the capital market and found downtrend situation of the market. In the circumstances, the Government took policy decision in accordance with the provision of section 16 of the Bangladesh Securities and Exchange Commission Act, 1993 (the BSEC Act, 1993) for extension of listed close end mutual funds for another 10 years to keep stability in the capital market. Accordingly, the Government issued office order dated 11.09.2018 to the BSEC for extension of tenure of mutual funds. Subsequently, the BSEC issued office order dated 02.10.2018 extending tenure of EBL First Mutual Fund and published the same in the Gazette notification on 23.10.2018 where no vote of unit holders is required under securities laws of the land.
9) The instant respondent (BSEC) is a statutory regulatory body who is duty bond to perform function and regulate its subordinate authorities under the securities laws to protect interest of investors in the share markets and accordingly, pursuant to direction and policy decision of the Government, the answering respondent (BSEC) issued office order dated 02.10.2018 extending tenure of the closed end mutual funds to keep stability of the capital market and for wellbeing of the investors where no unit holder raised objection. Thus, the instant respondent (BSEC) found no anomaly on the part of the respondent No.3 (RACE) in implementation of the decision. Despite, the petitioner with ill motive filed this writ petition in order to interfere with the policy decision of the Government and to cause harm to the interest of other unit holders and investors.
10) The BSEC further contends that the Government took policy decision for extension of tenure of closed end mutual fund as per section 16 of the SEC Act, 1993 to keep stability of the share market and thereafter the instant respondent (BSEC) issued directives pursuant to the provision of section 20A of the SEC Ordinance, 1969 containing non obstante clause which will prevail over any provision of SEC Rules, 2001 and therefore, no vote of unit holders are necessary to issue office order dated 02.10.2018.
11) Further, the instant writ petition is not maintainable in the eye of law since the petitioner could have sought redress of grievances under section 26 of the Ordinance, 1969 by way of revision and review and under section 21 of the Act, 1993 and rule 90 of the SEC Rules, 2001 by way of appeal as per procedure mentioned in the Securities and Exchange Commission (Appeal) Regulations, 1995 and as such the Rule is liable to be discharged.
12) Bangladesh RACE Management PCL (RACE) as respondent No.3 has also filed an affidavit in opposition controverting the statements of the writ petition. Contentions of this respondent, in brief, are that the writ petition is ventilation of grievances by the writ petitioner against so called failure of respondents No. 2 and 3 to follow the procedure laid down in the Trust Deed dated 05.04.2019 which is a private dispute not amendable to writ jurisdiction.
13) The RACE further contends that the petitioner does not own any unit of the EBL 1st Mutual Fund in its name and so, it has no interest in the affairs of this mutual fund. As per section 2(R) of the Depository Act, 1999, the Depository Register is the proof of legal ownership and it shows the name of one BNYM AAO TOD OBO THE BEGDH FD is listed as the legal owner of certain units of the Fund, but the petitioner has no recognized interest under the laws of Bangladesh over such units and as such the petitioner has no locus standi to file the writ petition. Further the register is the prima-facie proof of ownership as per section 21 of the Depository Act, 1999 and since the petitioner’s name does not appear in the register, any question of interest of the petitioner is a disputed question of fact, not amenable to writ jurisdiction. The tenure of the EBL First Mutual Fund has already been duly extended for another 10 years from 19.08.2019 as per the BSEC order dated 02.10.2018 (Annexure-C to the writ petition) which has been passed under the authority vested on the BSEC in accordance with section 20A of the Ordinance, 1969 and the said order overrides rule 50Kha of the Rules, 2001 due to the non-obstante clause in section 20A of the Ordinance, 1969.
14) By filing an affidavit in reply, the petitioner further states that the petitioner is the Investment Manager of the Bangladesh Fund, incorporated as a Delaware Statutory Trust and that the Bangladesh Fund is the beneficial owner of the units of the EBL Fund. The Bangladesh Fund has appointed the petitioner as the Investment Manager under an Amended and Restated Agreement and Declaration of Trust dated 29.06.2019 executed between the beneficial owners of the Bangladesh Fund, the BNY Mellon Trust of Delaware, as the Trustee, and the petitioner as the Investment Manager.
15) Clause 2.4(a) of the said Declaration of Trust states that the Investment Manager shall manage the business and affairs of the Trust and the Trustee irrevocably delegated its rights, duties and liabilities with respect to the management of the Trust to the Investment Manager except to the extent such rights, duties and liabilities are expressly retained by the Trustee.
16) Clause 2.4 (e) of the Declaration of Trust provides that the petitioner is a fiduciary under the Employee Retirement Income Securities Act of 1974, and as such, it has a duty to act in the best interest of the Fund and therefore, the petitioner has locus standi to file this writ petition.
17) The BNY Mellon trust of Delaware as Trustee of the Bangladesh Fund, has issued a letter dated 24.02.2020 reaffirming the petitioner’s discretion and authority to undertake and perform any and all acts deemed necessary or appropriate by it in connection with the management of the Trust Property. The said letter also confirms that under the Investment and Management Agreement dated 29.06.2018, the petitioner continues to be authorized on behalf of the Trust as its agent and attorney-in-fact, without obtaining the consent of or consulting the Trustee or any other person, generally to perform any other act necessary to enable the Investment Manager to carry out its obligations under this agreement. The petitioner as Investment Manager also has the authority to vote (or direct the voting of) all proxies solicited by or with respect to the issues of securities in which the trust property may be invested and to execute and bind the Trust in any actions, waivers, consents, covenants and indemnifications relating to such proxies.
18) The petitioner has recognized interest and obligation under the Declaration of Trust and also acts as a fiduciary for the Bangladesh Fund which is a beneficial owner of the units in the EBL Fund. Under petitioner’s management, the Bank of New York Mellon as custodian of the Bangladesh Fund, holds units in the EBL First Mutual Fund through HSBC Bangladesh Limited BNY Mellon Trust of Delaware acts as the Trustee of the Fund. The Bank of New York Mellon holds BO Account No. 1601620061765414 with DP Internal Reference No. 001-008317-732A with the HSBC Bangladesh Limited.
19) After placing the writ petition affidavit in reply filed by the petitioner, Dr. Sharif Bhuiyan, learned Advocate with Mr. Ahmed Zaker Chowdhury, the learned Advocate appearing for the petitioner has drawn our attention to the EBL First Mutual Fund Prospectus, Trust Deed, rule 50Kha of the Security and Exchange Commission Mutual Fund Bidimala, 2001 (the Rules, 2001). Mr. Bhuiyan submits that according to Prospectus and the Trust Deed, the tenure of the EBL Fund is 10 years which was scheduled to be expired on 19.08.2019 and it may be extended by the votes of 75% unitholders. Lie further submits that rule 50Kha of the Rules, 2001 also incorporates similar provision requiring consent of 75% unit holders through special meeting for extension of tenure of the Fund. But in violation of the said requirement, the respondent No.3 (the RACE) has issued a circular extending the tenure of the Fund. He also submits that the petitioner repeatedly approached the respondent No.3 (RACE) as well as the BSEC for their interference relating to aforesaid unauthorized extension of the Fund but there being no action, the petitioner has filed this writ petition. In support of this submissions, the learned Advocate refers to the Case of Securities and Exchange Commission and others Vs Md. Ali Zaman and others reported in 22 BLC (AD) 8, the case of Mian Fazal Din Vs. The Lahore Improvement Trust, Lahore Anjumane Mohammadi reported in 21 DLR (SC) 225 and in the case of S. N. Kabir Vs. Mrs. Fatema Begum and others reported in 34 BED (AD) 165.
20) Mr. Mahbubey Alam, learned Senior Advocate with Mr. A. M. Masum, learned Advocate appearing for the respondent No.l (BSEC) contends that section 16 of the Act, 1993 empowers the Government to issue any directive upon the BSEC from time to time for the purpose of implementation of the Act and that on consideration of situation prevailing in the capital market, the Government decided to extend the tenure of mutual funds including EBL First Mutual Fund and accordingly directed the BSEC for making such direction extending tenure of EBL First Mutual Fund. He further contends that being directed under the aforesaid provision, the BSEC issued the notification by publishing in the gazette extending tenure of the EBL First Mutual Fund. He also contends that the BSEC is also empowered under section 20A of the Ordinance, 1969 to pass any direction for the interest of the capital market and thus having the authority the tenure of the EBL First Mutual Fund has been extended.
21) Mr. Murad Reza, the learned Advocate with Mr. Imtiaz Farooq the learned Advocate appearing for the respondent No.3 (RACE) has raised a question as to maintainability of the writ petition in that the petitioner not being a unit holder of the EBL First Mutual Fund, has no locus standi to file this writ petition.
22) In reply, Dr. Sharif Bhuiyan, the learned Advocate for the petitioner has drawn our attention to the relevant clauses of the Amended and Restated Agreement And Declaration of Trust dated 29.06.2018 by which the Bangladesh Fund was created (Annexure-I). The learned Advocate submits that the petitioner is an Investment Manager of the BNYM Bangladesh Fund (shortly, the Bangladesh Fund) which is the unit holder of the EBL Fund and as per agreement of the Bangladesh Fund the petitioner by executing a separate investment management agreement, has under taken and agreed to act as the Investment Manager of the assets of the Trust and in that capacity, it is managing the investment of all assets comprising the Trust. Therefore, the petitioner has got interest with the affairs of the EBL Fund and with the issue involved in the writ petition. As such, the petitioner has locus standi to file this writ petition. In support of his submission the learned Advocate refers to the case of Mian Fazai Din Vs. The Lahore Improvement Trust, Lahore Anjumane Mohammadi reported in 21 DLR (SC) 225.
23) Drawing our attention to the circular of the BSEC dated 02.10.2018 (Annexure-C), Dr. Bhuiyan submits that even the contents of the circular is accepted as it is, from its expression the BSEC did not extend the tenure of the Fund and so the consent of 75% unit holders is required to extend the tenure in accordance with rule 50Kha of the Rules, 2001. He further submits that the language as inserted in the circular has to be read and understood as it is and that there is no scope to add words or to read words into it which are not there. In support of his submission, Dr. Bhuiyan refers to the case of S.N. Kabir Vs. Mrs. Fatema Begum and others reported in 34 BLD (AD) 165 paragraph- 25, 26 and 27 and the case of Md. Ismail and others Vs The State reported in 21 DLR (SC) 161 paragraph 14-16.
24) We have gone through the writ petition, affidavits in opposition separately filed by the respondents No. 1 and 3, affidavit in reply filed by the petitioner and other materials on record.
25) For better understanding of the issue in question, at the very out set, let us be introduced with the term “Mutual Fund” as defined in section 2 (Z) of the Rules, 2001 which runs as follows:
Ò(Z) ÒwgDPz¨qvj dvÛÓ A_© U«v÷ AvKv‡i MwVZ Ggb †Kvb dvÛ hvnvi D‡Ïk¨ GB wewagvjv Abymv‡i A_© evRvi Bbó«‡g‡›U wewb‡qv‡Mi Rb¨ GK ev GKvwaK ¯‹x‡gi Aaxb Rbmvavi‡Yi wbKU BDwbU weµ‡qi gva¨‡g msM„nxZ A_©|Ó
The above definition is explained in the case of Securities and Exchange Commission and others Vs Md. Ali Zaman and others reported in 22 BLC (AD) 8 which is as under:
“16. Mutual Fund is a professionally managed type of collective investment scheme that pools money from investors and, is invested typically in investment securities (stocks, bonds, short-term money market instruments, other mutual funds, other securities, and/commodities). Mutual Funds shall be a fund manager, who trades (buys and sells) the fund’s investment in accordance with fund’s investment objectives.
17. There are basically two types of mutual funds, open end and close end as defined under Rules 5(b) and 5(s) of the Rules, 2001………
18. Open-end mutual fund is one that is available for subscription all through the year, that is, when demand rises, the fund will continue to issue shares and will have no restriction on the issue of the fund. Moreover, Open-end mutual funds do not have any fixed maturity usually. Investors can conveniently buy and sell units at Net Asset Value (“NAV”) related prices. On the other hand, close-end mutual fund emerges under an initial public offering (IPO), it is publically traded and it issues fixed amount of share and enlisted and traded at a stock exchange. It usually has a stipulated maturity period and the total size of the fund is limited by size of the initial offer. Close-end funds (the share of which are traded by investors) may trade at a higher or lower price than their NAV.’’
26) Here, the dispute arises relating to extension of maturity period of a close end mutual fund, namely, EBL First Mutual Fund, a first Bangladeshi commercial bank sponsored Mutual Fund. The Fund was listed on 19.08.2009 for an initial tenure of 10 (ten) years which was scheduled to be expired on 19.08.2019. But the extension of tenure of the Fund for further 10 (ten) years, has led the petitioner to file the writ petition.
27) Question of maintainability having been raised in this Rule, it has to be settled first in view of decisions laid down by our apex Court in the case of TaeHung Packaging (BD) Limited and others Vs. Bangladesh and others reported in 18 BLC (AD) 144 and the case of Kartic Das Gupta Vs. Election Commission of Bangladesh and others reported in 8 ADC 578.
28) In this context, drawing our attention to paragraph No.4 to the writ petition, Mr. Murad Reza, the learned Advocate for the respondent No.3 (RACE) submits that in the writ petition the petitioner stated on behalf of the client, it is a substantial unit holder. But referring to the Annexure-1 to the affidavit in opposition of the respondent No.3, Mr. Rreza contends that the petitioner not being a unit holder of the EBL Fund, has no locus standi to file this writ petition.
29) In reply, Dr. Sharif Bhuiyan, the learned Advocate for the petitioner has drawn our attention to some annexures (in particular an agreement) to the affidavit in reply submitted by the petitioner and pointing out some clauses to the said agreement and declaration of Trust dated 29.06.2018.
30) Considering the materials placed by both the contending parties, it appears that as per Central Depository System (CDS), the unit holder of the EBL Fund bears BO Account No. 1601620061765414 and the owner of the said account is THE BANK OF NEW YORK MELLON AAO BNY MELLON TRUST OF DELAWARE OBO THE BNAGLADESH FUND short name of which as mentioned in CDS is BNYM AAO TOD OBO THE BNGDH FD and shortly, the Bangladesh Fund. This Fund is also created by an agreement, namely, Agreement And Declaration of Trust (Annexure-1 to the Affidavit in reply of the petitioner). Certain clauses of this agreement clear the status, liability and responsibility of petitioner relating to the Bangladesh Fund, a unit holder of the EBL Fund. Relevant portions of the said agreement are as follows:
“AMENDED AND RESTATED AGREEMENT AND DECLARATION OF TRUST of the Bangladesh Fund (the ‘Trust”) dated as of June 29, 2018 by and among BNY Mellon Trust of Delaware, a state bank chartered under the laws of Delaware (the “Trustee”), the Beneficial Owners (as defined below) from time to time hereunder and City of London Investment Management Company Limited (the “Investment Manager”).
ARTCILE II-MANAGEMENT
2.1 Legal Title. Legal title to all the Trust Property shall as far as may be practicable be vested in the name of the Trust, as a separate legal entity under the Delaware Statutory Trust Act, provided that the Trustee shall have power to cause legal title to any Trust Property to be held by or in the name of the Trustee, as custodian (including the Custodian), subcustodians, securities depositories or their respective nominees. The assets of the Trust shall be accounted for separately from all other property belonging to, or in the custody of the Trustee or any custodian acting hereunder.
2.2-2.3………………..
2.4 Investment Management
(a) Pursuant to section 3806 of the Delaware Statutory Trust Act, the Investment Manager shall manage the business and affairs of the Trust and the Trustee hereby irrevocably delegates its rights, duties and liabilities with respect to the management of the Trust to the Investment Manager, except to the extent such rights, duties and liabilities are expressly retained by the Trustee under this Agreement. The Trustee shall not be any duty or liability with respect to the acts or omissions of the Investment Manager, nor shall the Trustee be responsible for monitoring or supervising the performance of the Investment Manager’s obligations under this Agreement. The Investment Manager undertakes and agrees to act as the investment manager of the assets of the Trust and, in that capacity, shall manage the investment of all assets comprising the Trust and shall enter into a separate Investment Management Agreement with the Trust. The Investment Manager shall direct the Trustee in a timely and proper fashion as to the matters referred to in section 2.2 above. Such directions may be given by the Investment Manager to the Trustee either in writing (including communications effected directly between electro-mechanical or electronic devices, subject to the Trustee’s procedures and such other means of communication as the Trustee and Investment Manager may agree upon from time to time) or orally. The Investment Manager agrees that, if such instructions are given orally, it shall provide written confirmation as soon as possible thereafter. Such written or oral directions may be given as standing instructions.
(b) The Investment Manager is authorized, without obtaining the consent of or consulting with the Trustee, to issue to brokers, banks and other entities, instructions to purchase, sell, and otherwise trade in or deal with any Security for the account, as the risk, and in the name of the Trust. The Investment Manager shall promptly inform the Trustee or any instructions so given to a broker, bank or other entity, and shall take such other action as may be reasonably required in order to permit the Trustee to discharge its obligations under this agreement. Without limiting the foregoing, the Investment Manager is further authorized to vote or direct the voting of the Trust’s holdings, to exercise subscription rights, to give instructions to the Trust’s Custodian, subcustodians and other agents and to carry out any other activities that are necessary or desirable in connection with the discretionary management of the Trust’s assets.
(c) The Investment Manager is authorized to consult with legal counsel (who may be counsel to the Trustee) concerning any question that may arise with reference to its duties under this Agreement. The Investment Manager is also authorized to sign, as attorney in fact for the Trust (but not the Trustee), any documents and to take any other action which the Investment Manager considers necessary or desirable in order to carry out its duties. The Investment Manager, in its discretion may delegate some or all of its rights, powers and authorities with respect to the Trust to one or more of its Affiliates. The Investment Manager may in its discretion appoint subadvisors to make recommendations to the Investment Manager concerning: (i) the investment of the assets of the Trust; (ii) the voting of the Trust’s holdings; (iii) the exercise of subscription rights; and (iv) any other activities that are necessary or desirable in connection with the management of the Trust’s activities.”
(Underlines are supplied)
31) From the aforesaid contents of the agreement of the Bangladesh Fund relating to petitioner’s status as the Investment Manager, it appears that the unit holder of the EBL 1st mutual Fund (EBL Fund) is THE BANK OF NEW YORK MELLON AAO BNY MELLON TRUST OF DEL WARE OBD 1 HE BANGLADESH FUND, the short name of which mentioned in the CDS (Central Depository System) is “BNYM AAO TOD OBO THE BNGDH FD,” shortly, the Bangladesh Fund (the owner of the BO ID 1601620061765414) created under the laws of Delaware and its beneficial owner is BNY mellon Trust of Delaware, a state bank chartered under the laws of Delaware. Although the petitioner is not the owner of the Bangladesh Fund, but as per agreement and declaration it is an Investment Manager of the said Fund and pursuant to said declaration, the petitioner under took and agreed to act as the Investment Manager of the assets of Trust and in that capacity, it agreed to manage the investment of all assets comprising the Trust. As Investment Manager the petitioner is also authorized to take any action which it considers necessary or desirable in order to carryout its duties.
32) Since the petitioner does not have the direct ownership in the Bangladesh Fund, (unit holder of the EBL Fund) question arises whether it has locus standi to file the writ petition relating to affairs of the EBL Fund. It is true that an unit holder has absolute right and locus standi to file the writ petition involving affairs of the Fund. If the prayer of writ petition would have been something to be sought directly in favour of the petitioner, then the unit holder (the Trust) must be required to file the writ petition. But here nature of the prayer made in the writ petition is different and by this prayer the petitioner just seeks a judicial review relating to an alleged inaction of the respondents in allowing continuation of a Fund beyond its tenure in purported violation of law. The petitioner does not seek any relief directly for its interest. The relief sought for is for the interest of unit holder and as an Investment Manager of unit holder the petitioner can do it.
33) Thus, considering prayer of the writ petition and also, the petitioner being closely involved with the affairs of the Trust (Bangladesh Fund) as an Investment Manager, certainly has got interest in the issues involved in this writ petition and so, we are of the view that the petitioner has got locus standi to tile this writ petition. This view of ours finds support from the case of Mian Fazal Din Vs. The Lahore Improvement Trust, Lahore Anjumane Mohammadi reported in 21 DLR (SC) 225 wherein their Lordships held as under:
“It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of privilege or liberty of franchise.”
34) The aforesaid ratio was discussed and appreciated in the case of Dr. Mohiuddin Farooque Vs. Bangladesh represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others reported in 49 DLR (AD) 1, the land mark judgment settling locus standi of the petitioner to file writ petition. In the aforesaid judgment a number of cases regarding locus standi were discussed and their Lordships of the apex court finally adopted the principle annunciated in the case of SP Gupta and others Vs President of India reported in AI R 1982 (SC) 149 relevant portions of which are as follows:
“What is sufficient interest to give standing to a member of the public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any strait Jacket formula for the purpose of defining or delimiting sufficient interest. It has necessarily to be left to the modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable section of the people by creating new social, collective ‘diffuse’ rights and interests imposing new public duties on the State and other public authorities infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The Judge who has the correct social perspective and who is on the same wavelength as the Constitution well be able to decide, without any difficulty and in consonance with the constitutional objectives whether a member of the public moving the Court in a particular case has sufficient interest to initiate the action.”
(Underlined)
35) In view of above ratio, it depends on the Court to consider as to whether a particular petitioner has got locus standi in view of nature of the remedy sought for in the writ petition. Here, considering the prayer made by the petitioner and in view of petitioner’s standing related with the interest of unit holder, we are led to hold that the petitioner has got locus standi to file the writ petition and as such, we are unable to accept the submission of Mr. Murad Reza, the learned Advocate for the respondent No.3 that the petitioner does not have locus stand to file the writ petition.
36) Now let us come to the merit of the Rule as to whether by the circular as contained in Annexure-C to the writ petition the tenure of the EBL Fund is extended properly by the BSEC or whether it needs consent of 75% unit holders of the Fund to extend the tenure of the Fund. In this regard, we have examined the relevant provisions i.e section 16 of the Act, 1993, section 20A of the Ordinance, 1969 and the rule 50 Kha of the Rules, 2001 which are as follows:
Section 16 of the Act 1993:
Ò16| wb‡`©k cÖ`v‡bi miKv‡ii ¶gZv| GB AvB‡bi D‡Ïk¨ c~ibK‡í miKvi Kwgkb‡K †Kvb bxwZMZ wel‡q we‡kl mgq mgq wb‡`©k cÖ`vb Kwi‡Z cvwi‡e Ges Kwgkb Dnv cvjb Kwi‡Z eva¨ _vwK‡e: Z‡e kZ© _v‡K †h, D³iæc †Kvb wb‡`©k cÖ`v‡bi c~‡e© miKvi Kwgkb‡K Zrm¤ú‡K Dnvi gZvgZ cÖ`vb Kwievi Rb¨ my‡hvM cÖ`vb Kwi‡e|Ó
Section 20A of the Ordinance 1969:
“20A. Notwithstanding anything contained in any other law for the time being in force, where the commission is satisfied that in the interest of investors or securities market or for the development of securities market it is necessary so to do, it any, by order in writing, issue such directions as it deems fit to may Stock Exchange, stock broker, stock dealer, issuer or investor or any other person associated with the capital market.”
Rule 50 Kha of the Rules, 2001:
Ò50L| ¯‹x‡gi ‡gqv`|- †Kvb †gqv`x ¯‹x‡gi †gqv` Ges cwigvb ¯‹xg †Nvlbvi mgq wba©viY Kwi‡Z nB‡et Z‡e kZ© _v‡K †h, ¯‹x‡gi †gqv` †kl nBevi Kgc‡¶ 1(GK) eQi c~‡e© BDwbU gvwjKM‡bi we‡kl mfv Kwiqv Dcw¯’Z ‡fvU`vbKvix BDwbU gvwjKM‡Yi wZb-PZz_©vsk msL¨vMwi‡ôi †fv‡U ¯‹x‡gi †gqv` m‡e©v”P Abyiæc GKwU †gqv‡`i Rb¨ ewa©Z Kiv hvB‡e|Ó
On a plain reading of the aforesaid provisions, it appears that the Government can direct the BSEC to take any action or pass any order in accordance with section 16 of the Act, 1993. The BSEC has also got authority under section 20A of the Ordinance, 1969 to pass any order or direction for the interest of investors or capital market or for the development of capital market. Dr. Sharif, learned Advocate for the petitioner, also does not dispute regarding the authority of the BSEC as well as the Government under the aforesaid provisions.
37) But drawing our attention to the circular of the BSEC as contained in Annexure-C to the writ petition he submits that by this circular, the BSEC did not extend the tenure of the Fund and so requirement of compliance of rule 50 Kha of the Rules, 2001 is mandatory. On the other hand, Mr. Mahbubey Alam, the learned Senior Advocate again reading, the said circular, asserts that by the expression of the circular, it is clear that the BSEC has extended the tenure. This being the bone dispute between the parties, let us first read the said circular of the BSEC (Annexure-C) which runs as follows:
Òevsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb
wmwKDwiwUR Kwgkb feb|
B-6/wm, AvMviMvuI
†ki-B-evsjv bMi cÖkvmwbK GjvKv
XvKv-1207, evsjv‡`k|
Av‡`k| ZvwiL: 02 A‡±vei 2018 wLªt

bs weGmBwm/wmGgAviAviwmwW/2006-157/210/cÖkvmb/83-†h‡nZz, evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb AvBb, 1993 Gi aviv 16 Abyhvqx miKv‡ii wb‡`©kµ‡g evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb GB g‡g© wmÜvšÍ MÖnY Kwiqv‡Q †h, wmwKDwiwU gv‡K©‡Ui ¯^v‡_© ev D³ gv‡K©‡Ui Dbœq‡bi Rb¨, Bmy¨K…Z we`¨gvb †gqv`x wgDPz¨qvj dvÛ (Closeend Mutual Fund) mg~‡ni ‡gqv` cybtwba©viY Gi wbwgË wb‡`©k cÖ`vb Kiv cÖ‡qvRb;

AZGe, †m‡nZz, evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb, Securities and Exchange Ordinance, 1969 (XVII of 1969) Gi Section 20A-†Z cÖ`Ë ¶gZve‡j, we`¨gvb †gqv`x wgDPz¨qvj dv‡Ûi †¶‡Î cÖ‡hvR¨ wewa-weav‡bi kZ© wkw_jc~e©K GZØviv wbgœiæc wb‡`©k cÖ`vb Kwij, h_v:

(1) we`¨gvb ZvwjKvf~³ †gqv`x wgDPz¨qvj dv‡Ûi †gqv` m‡ev”P 10 (`k) eQ‡ii mgvb Av‡iv GKwU †gqv` ewa©Z Kiv hvB‡e;

Z‡e kZ© _v‡K †h, we`¨gvb †Kvb †gqv`x wgDPz¨qvj dv‡Ûi †gqv` m~Pbv nB‡Z me©‡gvU 20 (wek) eQ‡ii AwaK nB‡e bvt Av‡iv kZ© _v‡K †h, we`¨gvb †gqv`x wgDPz¨qvj dvÛmg~‡ni g‡a¨ †h mKj †gqv`x wgDPz¨qvj dvÛ eZ©gvb †gqv` e„wׇZ B”QzK bq, †m mKj dv‡Ûi Rb¨ wewa-weavb †gvZv‡eK iæcvšÍi ev Aejywßi my‡hvMI Ae¨vnZ _vwK‡e|

(2) Kwgk‡bi Av‡`k bs- GmBwm/wmGgAviAviwmwW/2006-157/10/cÖt/20, ZvwiLt Rvbyqvwi 24, 2010 Gi kZ©vejx we`¨gvb ZvwjKvf~³ †gqv`x wgDPz¨qvj dv‡Ûi †¶‡Î cÖ‡qvR¨ nB‡e bv| GB Av‡`k Awej‡¤^ Kvh©Ki nB‡e|

evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb Gi Av‡`kµ‡g
W. Gg. Lvqiæj †nv‡mb
†Pqvig¨vbÓ

38) Here the world “we`¨gvb ZvwjKvfz³ †gqv`x wgDPzqvj dv‡Ûi †gqv` m‡e©v”P 10(`k) eQ‡ii mgvb Av‡iv GKwU †gqv` ewa©Z Kiv hvB‡e|Ó being the expression, Dr. Bhuiyan submits that extension of tenure has not yet been given (extended) by the BSEC itself and that by the said circular the BSEC just proposed for extension and it can be aiven by the unit holders in accordance with rule 50 kha of the Rules, 2001. To understand the meaning of the expression given in the circular cites the case of S.N. Kabir Vs Mrs. Fatema Begum and others reported in 34 BLD (AD) 165 where it was held that the court can not add words or read words into a statute which are not there.
39) There is no doubt and it is also settled by the Appellate Division in the case of Securities and Exchange Commission and Ors Vs Md. Ali Zaman and Ors reported in 22 BLC (AD)8 that unit holders are the authority to decide the tenure of the Fund. But at the same time it has also been settled in the said decision that under section 20A, the BSEC has the absolute authority with a non obstante clause to take any decision in respect of the capital market. Besides, the Government has the authority under section 16 of the Act, 1993 to direct the BSEC for taking any decision for the interest of the capital market.
40) Here, of course, the expression Òwe`¨gvb ZvwjKvfz³ †gqv`x wgDPz¨qvj dv‡Ûi †gqv` m‡e©v”P 10(`k) eQ‡ii mgvb Av‡iv GKwU †gqv` ewa©Z Kiv hvB‡e|Ó does not express clearly as to whether extension of tenure has been given by the BSEC but it is not the decision of the BSEC alone. It has been generated from the Government by their meeting dated 12.08.2018 and 11.09.2018 (Annrexures-2 and 4 respectively to the affidavit in opposition of the respondent No.1). Therefore, let us see the aforesaid decisions of the Government which led the BSEC to issue the circular dated 02.10.2018 as contained in Annexure-C to the writ petition. For better understanding, the foresaid decisions of the Government are reproduced here in below:
ÒMYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Avw_©K cÖwZôvb wefvM
weGmBwmI weAvBwmGg kvLv
bs-53.00.0000.421.99.002.18-183 ZvwiLt 12.08.2018
welqt wgDPz¨qvj dvÛ
myÎt (1) A_©gš¿xi DcvbyôvwbK cÎ bs 53.00.0000.421.99.002.18-144 ZvwiLt 18.06.2018 Ges (2) weGmBwmi †Pqvig¨v‡bi DcvbyôvwbK cÎ bs weGmBwm/GmGdA¨vÛ mwcwW/GgGd02/2009/1087; Zvs 19.07.2018
Dchy³ welq I my‡Îv³ (2) bs DcvbyôvwbK cÎwU miKvi KZ©…K ch©v‡jvPbv Kiv n‡q‡Q| evsjv‡`‡ki eZ©gvb cyuwRevRvi wel‡q miKv‡ii ch©‡e¶b¸‡jv wbgœiƒct (K) cyuwRevRv‡ii w¯’wZkxjZv Ae¨vnZ ivLvi j‡¶ cÖkvmwbK ms¯‹vimn B‡Zvg‡a¨ bvbvwea c`‡¶c cÖnb Kiv m‡Z¡I 2018 mv‡ji ïiæ n‡Z XvKv ÷K G·‡PÄ wjt Gi myPK cÖvq 1000 c‡q›U n«vm †c‡q‡Q| Abyiæcfv‡e †jb‡`‡bi cwigvY K‡g‡Q Ges evRvi gyjab e¨vcK nv‡i n«vm †c‡q‡Q| Gi d‡j wewb‡qvMKvixiv cyuwR nviv‡”Q, cvkvcvwk evRv‡ii cÖwZ AvMÖn I Av¯’v Kg‡Q g‡g© cÖZxqgvb nq| evRv‡ii G wbgœgywLZv Ae¨vnZ _vK‡j cyuwRevRv‡ii cÖwZ wewb‡qvMKvix‡`i Av¯’v Av‡iv K‡g †h‡Z cv‡i|
(L) cyuwRevRvi wewb‡qv‡MKvix RvZxq HK¨ dvD‡Ûkb bvgK GKwU cÖwZôvb AbwZwej‡¤^ cyuwRevRv‡ii cÖvwZôvwbK cÖvY ‡K›`ª we`¨gvb wgDPz¨qvj dvÛ¸‡jvi Aemvqb ev ms‡KvPb cÖwµqv eÜ K‡i dvÛ¸‡jv‡K `xN©‡gqv‡` (10-20 eQi) bevqb cÖ`v‡bi Rb¨ Avw_©K cÖwZôvb wefv‡M Av‡e`b K‡i‡Qb|
(M) cyuwRevRv‡i bvbvgywL ms¯‹vig~jK c`‡¶c MÖnb Kiv m‡Z¡I †`‡k wkívq‡b A_©vq‡bi †¶‡Î GLb ch©šÍ G Lv‡Zi Kw›U«weDkb ch©vß bq| Kvh©Zt †`‡ki cyuwRevRvi GL‡bv e¨vsK e¨e¯’vi Dci wbf©ikxj| cyuwRevRvi‡K kw³kvjx Ki‡Z n‡j BKzBwU wbf©i evRvi †_‡K †ei n‡q †Wwi‡fwUfm, eÛgv‡K©U Ges wgDPz¨qvj dv‡Ûi Dci wbf©ikxjZv e„w× Kiv cÖ‡qvRb| (N) ms‡KvPbg~jK bxwZi `xN©‡gqv`x †bwZevPK cÖfve Zvr¶wYK †evSv bv †M‡jI eZ©gv‡b cyuwRevRv‡ii Pjgvb cwiw¯’wZ‡Z Gi †bwZevPK cÖfve †evaMg¨ n‡”Q| Kwgkb Øviv RvixK…Z Av‡`k bs GmBwm/wmGgAviAviwmwW/2006-157/10 Ges wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb (wgDPz¨qvj dvÛ) wewagvjv 2001 Gi 50(L) Abyhvqx 2009-2011 mg‡q eZ©gvb miKv‡ii cÖ‡bv`bvq MwVZ wgDPz¨qvj dvÛ¸‡jvi Aemvqb nIqvi Avk¼v m„wó n‡q‡Q, hv cÖvwZôvwbK wewb‡qvM e„w×i cwiKíbvi mv‡_ m½wZc~Y© e‡j g‡b nq bv|
(O) †gqv`x wgDPz¨qvj dvÛ¸‡jvi Aemvqb ÿz`ª wewb‡qvMKvix‡`i Rb¨ ¶wZKi n‡Z cv‡i| dvÛ Aemvqb ev ms‡KvPb NU‡j ÿz`ª wewb‡qvMKvixivi Zv‡`i cyuwR b¨vh¨g~‡j¨ †diZ cv‡e Zv wbwðZ | bq| KviY †gqv`x dvÛ¸‡jv Zv‡i Aemvqb cÖwµqvq evRv‡i wekvj As‡Ki †kqvi weµq Ki‡j mvwe©K cyuwRevRv‡i m~P‡K wbgœgywL Pvc m„wói Avk¼v m„wó n‡e| hvi d‡j ÿz`ª wewb‡qvMKvix ïaygvÎ Zv‡`i wgDPz¨qvj dv‡Û wewb‡qv‡MB ¶wZMÖ¯Í n‡e bv eis Zv‡`i mvwe©K ‡cvU©‡dvwjI‡Z ¶wZi Avk¼v m„wó n‡e|
(P) Aciw`‡K †gqv`x wgDPz¨qvj dvÛ¸‡jvi †gqv`Kvj e„w× Ki‡j cyuwRevRv‡i wbgœewY©Z BwZevPK cÖfve co‡Z cv‡i g‡g© avibv Kiv n‡”Qt
(1) cyuwRevRv‡i A¯^vfvweK DÌvb-cZ‡bi mgq evRvi‡K ¯^vfvweK ch©v‡q Avbvi †¶‡Î dvÛ¸‡jv †h fzwgKv iv‡L Zv Ae¨vnZ _vK‡e;
(2) cyuwRevRvi‡K w¯’wZkxj ivLvi Rb¨ gv‡K©U †gKvi bv _vK‡jI wgDPz¨qvj dvÛ¸‡jv mxwgZ AvKv‡i n‡jI gv‡K©U †gKv‡ii fzwgKv cvjb Ki‡Z cvi‡e| d‡j cyuwRevRv‡i ÿz`ª wewb‡qvMKvix‡`i †cvU©‡dvwjI¸‡jv ¶wZMÖ¯Í nIqv †_‡K wbivc` _vK‡e|
(Q) cÖm½Zt D‡jøL¨ †h, evRvi cwiw¯’wZ we‡ePbvq, AvBwmwei cÖ¯Ívevbyhvqx G wefv‡Mi Aby‡iv‡ai †cÖw¶‡Z weGmBwm KZ©…K m¤úwZ AvBwmwei BDwbU dv‡Ûi †gqv` B‡Zvcy‡e© 01 eQi K‡i †gvU 02 eQi A_©vr wW‡m¤^i 2019 ch©šÍ e„w× Kiv nq‡q‡Q g‡g© Rvbv hvq|
02| ewY©Zve¯’vq, evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb AvBb, 1993 Gi mswkøó avivg‡Z cyuwRevRv‡ii mg-mvgwqK cwiw¯’wZmn mvwe©K welq we‡ePbvq wW‡m¤^i 2023 mvj ch©šÍ †gqv` c~wZ© n‡e Giƒc dvÛmg~‡ni cÖwZwUi †gqv` cieZ©x 01(GK) †gqv‡` 10(`k) eQi e„w×i Rb¨ wb‡`©kµ‡g Aby‡iva Kiv nj|
03| Bnv‡Z gvbbxq A_©gš¿xi m¤§wZ i‡q‡Q|
(†kL wmwÏKzi ingvb)
wmwbqi mnKvix mwPe|Ó

ÒMYcÖRvZš¿x evsjv‡`k miKvi
A_© gš¿Yvjq
Avw_©K cÖwZôvb wefvM
weGmBwmI weAvBwmGg kvLv
bs-53.00.0000.421.99.009.18-207 ZvwiLt 11.09.2018

welqt wgDPz¨qvj dvÛ

myÎt (1) gvbbxq A_©gš¿xi DcvbyôvwbK cÎ bs53.00.0000.421.99.002.18-144 ZvwiLt 18.06.2018,
(2) weGmBwmi cÎ bs weGmBwm/GgGdA¨vÛ GmwcwW/GgGd02/2009/1087; Zvs 19.07.2018 Ges
(3) Avw_©K cÖwZôvb wefv‡Mi cÎ bs 53.00.0000.421.99.002.18-183 ZvwiLt 12.08.2018|
Dchy³ welq I my‡Îi cwi‡cw¶‡Z Avw`ó n‡q Rvbvw”Q Òwewb‡qvMKvix‡`i ¯^v‡_© eZ©gv‡b ZvwjKvfy³ †gqvw` wgDPz¨qvj dv‡Ûi me©‡gvU †gqv` we`¨gvb 10(`k) eQ‡ii m‡e©v”P mxgvi cwie‡Z© cÖ‡hvR¨ wewagvjvi kZ© wkw_jc~e©K Av‡iv m‡e©v”P 10 (`k) eQ‡ii mgvb GKwU †gqv` e„w×i Rb¨ evsjv‡`k wmwKDwiwUR A¨vÛ G·‡PÄ Kwgkb e¨e¯’v MÖnb Ki‡eÓ g‡g© wmØvšÍ MÖnb K‡i‡Q|
(†gvt gLdvi DwÏb †LvKb)
mnKvix mwPeÓ

41) From the aforesaid office orders of the Government, it is unequivocally clear that the Government has already decided to extend the tenure of the Fund for further 10 years and accordingly directed the BSEC under section 16 for taking steps in this regard. Pursuant to which the BSEC issued the circular dated 02.10.2018. If we read these three office orders together i.e Annexure-2 and 4 to the affidavit in opposition filed by the respondent No.l (Government) and the BSEC circular as contained in Annexure-C to the writ petition, it is apparent that the Government and the BSEC have taken decision to extend tenure of the EBL Mutual Fund for further 10 years. As we discussed earlier that both the Government as well as the BSEC have the authority under the parent enactments i.e the Act, 1993 and the Ordinance, 1969 to take any decision including to extend the tenure of the close end mutual fund. Thus, the extension of tenure of Fund was done in accordance with laws. Therefore, in this situation rule 50 Kha of the Rules, 2001 will not apply for taking consent of the unit holders for extending tenure of the Mutual Fund.
Regard being had to the above, we do not find any merit in this Rule.
However, since unit holders are the investors, they have the option to go tor liquidation as per their desire in accordance with law. The same has also been reflected in the BSEC circular dated 02.10.2018 (Annexure-C), prospectus, Trust deed as well as the Rules, 2001.
In the result, the Rule is discharged with the above observation. No order as to costs.
Communicate a copy of this judgment and order to the respondents at once.

Md. Khairul Alam, J
I agree.

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