BLD’s Ten
Years Civil Digest (1993—2002) Index
FAMILY COURT
Family Court
From
the expression “other laws” used in section 3 of the Ordinance it appears that
the Family Courts Ordinance controls the Muslim Family Laws Ordinance, 1961 and
not vice versa. Any person professing any faith is entitled to bring a suit for
the purposes enumerated in section 5 of the Ordinance. A Hindu wife is
therefore entitled to bring a suit for maintenance in the Family Court—Family
Court Ordinance, 1985 (XVIII of 1985), Sections-3 and 5.
Nirmal Kanti
Das Vs. Sreemati Biva Rani, 14 BLD (HCD) 413.
Family Court
Under
section 5 of the Ordinance only a Muslim litigant is entitled to bring a suit
in the Family Court for matters mentioned in clauses (a) to (e) —Family Court
Ordinance, 1985 (XVIII of 1985), Section-5
Krishna Pada
Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415.
Family Court
The
word ‘order’ used in Section 17 of the Ordinance does not include an
interlocutory order and as such no appeal lies before the District Judge
against any interlocutory order passed by the Family Court—Family Court
Ordinance, 1985 (XVIII of 1985), Section — 20.
Md. Younus
Miah Vs. Abida Sultana @ Chhanda, 14 BLD (HCD) 291.
Family Court
Application
of the Muslim Family Laws Ordinance, 1961 has been overridden by section 3 of
the Family Courts Ordinance in clear language providing that this Ordinance
shall have effect notwithstanding anything contained in any other law.
Nirmal Kanti
Das Vs. Sreemati Biva Rani, 14 BLD (HCD) 413.
Family Court
Although
Section 20 of the Ordinance provides that the provisions of C.P.C. shall not
apply to proceedings before the Family Courts except Sections 10 and 11. this
bar is not an absolute bar. Since the Family Courts Ordinance does not
prescribe any alternative provision for examination of witnesses on commission,
Order 26 C.P.C. applies to the proceedings before the Family Courts—Code of
Civil Procedure, 1908. Order -26 of C.P.C. and Family Courts Ordinance, 1985 (
xviii of 1985)
Md. Younus
Miah Vs. Abida Sultana @ Chhanda, 14 BLD (HCD) 291.
Family Court
Custody of
minor daughter
Father
Abdur Razzaque Sardar sought for the custody of his daughter Rekha presently
aged about 15 years 9 months. Rekha appeared before the trial Court and
expressed her willingness to live with her mother who was divorced long ago by
petitioner Abdur Razzaque. Abdur Razzaque had already taken a second wife and
he did not take any care of his minor daughter nor did he pay any maintenance
to her so far except giving her small gifts at times. Considering the welfare
of the child, the High Court Division was right in refusing to the petitioner
the custody of Rekha– Guardian and Wards Act, 1890 (VIII of 1890), Section
-25.
Abdur
Razzaque Sarder Vs. Mosammat Jahanara Begum, 16 BLD (AD) 163.
Family Court—Limitation
for suit for dower
Although
the Limitation Act does not specifically provide for any particular period of
limitation for filing suits by a Muslim wife for arrears of maintenance,
Article 120 of the Limitation Act providing for a period of limitation of 6
years from the time of accrual of the right, is applicable to a suit for
maintenance by a Muslim wife under the Family Courts Ordinance—Limitation Act.
1908 (IX of 1908), Article-120.
Jamila
Khatun V. Rustom Au, 16 BLD (AD) 61.
Family Court
The
Family Court’s Ordinance, 1985 is applicable to all citizens in Bangladesh
irrespective of their religious faith. The Family Court has exclusive
jurisdiction to try matters relating to maintenance, dower, guardianship,
restitution of conjugal rights and guardianship and custody of the children, as
the case may be, as enumerated in section 5 of the Ordinance—Family Court’s
Ordinance, 1985 (XVIII of 1985), Sections—5 and 24.
Pachan Rissi
Das Vs. Khuku Raid Dasi and ors, 17 BLD (HCD) 563.
Family Court
Welfare of
Child
Plaintiff’s
suit was decreed upto the Appellate Division observing that the Plaintiff was
entitled to take the twin sons in her custody. It is on record that the
plaintiff and the defendant are highly educated persons and they are
responsible Government Officers. From the judgment of the Appellate Division it
appears that the defendant-petitioner has got married again and as such the
welfare of the twin sons will not be protected in the hands of the
step-mother—Family Court Ordinance, 1985(X VIII of 1985), Section—5.
Amirul Bor
Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213.
Family Court—Welfare
of Child
While
dealing with matters referable to the custody of a child, the established legal
position is that the welfare of the child is of prime
consideration—Constitution of Bangladesh, 1972, Article 102.(2)(b).
Ayesha
Khanam and others Vs. Major Sabbir Ahmed and ors, 13 BLD (HCD) 186.
Family Court
Section
20 of the Ordinance is a bar to the application of the Civil Procedure Code in
a Family Court proceeding with the exception of sections 10 and 11 under the
Family Courts Ordinance. The lower appellate Court cannot take evidence under
Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts
Ordinance do not provide for taking of evidence—Family Court Ordinance, 1985
(XVIII of 1985) Section—20, Code of Civil Procedure, 1908.
Saleha Begum
Vs Dilruba Begum, 21 BLD (HCD) 422.
Family Court
Fresh cause
of action
In
view of the provision of section 16(3B) of the Ordinance, a fresh and separate
cause of action will arise for failure to pay money of each and every
installment for the purpose of sending the judgment-debtor to imprisonment for
his failure to pay the money under each installment—Family Court Ordinance,
1985(XVIII of 1985), Section—16(3B).
Maksuda
Aktar Vs. Md Serajul Islam, 19 BLD (HCD) 466
Family Court
Since
the procedure under Order XLI Rule 27 is a bar under section 20 of the
Ordinance in a Family Court proceeding the only recourse left to the lower
appellate Court is to fall upon section 24 of the Ordinance to follow the
procedure laid down in Guardians and Wards Act, while deciding the question of
guardianship and custody of a minor—Family Court Ordinance, 1985 (XVIII of
1985), Section—24, Guardians and Wards Act, 1890 (VIII of 1890), Sections—12
and 13.
Saleha Begum
Vs Dilruba Begum, 21 BLD (HCD) 422.
Family Court
Every
suit under the Ordinance shall be instituted by the presentation of a plaint to
the Family Court within the local limits of whose jurisdiction the cause of
action has wholly or partly arisen or the parties reside or last resided
together.
Provided
that in a suit for dissolution of marriage, dower or maintenance, the Court
within the local limits of whose jurisdiction the wife ordinarily resides,
shall also have jurisdiction to try such suit—Family Court Ordinance, 1985
(XVIJI of 1985), Section— 6(1)(a)(b).
Mossammat
Jesmin Akhter and others Vs A S M. Moniruzzaman (Babu), 21 BLD (HCD) 160
Family Court
Islamic Law
of Hidnath
The
Islamic Law of Hidnath is that the mother has absolute right against the father
over the minor child till she remarries. If the mother remarries still then she
will be at par with the father as regards the custody of the minor child, the
welfare of the minor being the determining factor.
Romena Afrin
Vs. Fakir Ashrafuddin Ahmed and others, 16 BLD (HCD) 487.
Family Court
Grounds for
dissolution of marriage
The
question whether the husband treats his wife with cruelty or not is not of
prime importance in determining whether the wife is entitled to get her
marriage dissolved through ‘khula. When the husband and wife cannot live
together in peace and amity and the wife offers consideration for dissolution
of the marriage, she is entitled to dissolve her marriage through
‘Khula—Dissolution of Muslim Marriages Act. 1939(VIII of 1939), Section-2(
VIII).
Sheerin Alam
Chowdhury Vs. Captain Shamsul Alam Chowdhury, 16 BLD (HCD) 24.
FATWA
Fatwa
Fatwa
means legal opinion by a person of lawful authority. Legal system of Bangladesh
empowers only the Courts to decide all questions relating to the legal opinion
on the Muslim and other laws as in force in Bangladesh and as such any fatwa by
any unauthorised person is illegal—Constitution of Bangladesh, 1972,
Article—102
Editor, The
Daily Banglabazar Patrika Vs. District Magistrate, Naogaon, 21 BLD (HCD) 45.
FINDINGS OF
FACT
Finding of
facts
The
Court of appeal being the last Court of facts it is difficult to interfere with
finding of fact arrived by the Appellate Court of fact—Code of Civil Procedure
1908 (Act V of 1908), Section—115.
Chairman,
Madaripur Pourashava Vs. Mozibur Rahman @ Babul and others, 13 BLD(HCD) 5
Finding of
facts
A
court of revision cannot go into a question of fact unless the Petitioner is
able to show that it is perverse or it is based on no evidence—Code of Civil
Procedure 1908 (Act V of 1908), Section—115.
Abdur Razzak
Vs. Ahila Khatun and others, 13 BLD (HCD) 610.
Findings of
fact—When can be disturbed?
When
the appellate court as the final court of fact decides questions of fact and
records its finding on consideration of the evidence, the High Court Division
cannot interfere with the findings of facts in revision unless they said
findings are found to be perverse. When the material findings of the appellate
court are upheld by the High Court Division to be correct, no interference is
called for by the Appellate Division unless a substantial error of law is
proved.
Kurshid Ali
and others Vs. Noorjahan Bewa and others, 15 BLD (AD) 82.
Findings of
fact
Principle of
interference with concurrent findings of fact
Concurrent
findings of fact are generally immune from interference In revision. But when
the courts below failed to consider some important documentary evidence and
arrived at findings of facts which are not based on materials on record, the
High Court Division may be justified in interfering with those on giving cogent
reasons.
Abdur Razzak
being dead his heirs : Sakina Khatun and others Vs. Mansur Alam and others, 15
BLD (AD) 83.
Non
Consideration of evidence
When
the revisional court finds misreading of material evidence and non-
consideration of some material evidence by the Courts below it becomes incumbent
upon it to consider the same and to dispose of the case finally on the evidence
on record. Order of remand without justifiable grounds cannot be sustained—Code
of Civil Procedure, 1908 (V of 1908), Section—i 15, and Order XLI Rule 26.
Hussain Ahmed
Chowdhury Vs. Md. Nurul Amin and others, 16 BLD (AD) 31.
Non-consideration
of material evidence materially affecting a decision calls for interference in
revision.
The
judgment of the appellate court being vitiated by total non-consideration of
the evidence of all the six witnesses of the preemptees the High Court Division
was wrong in refusing to interfere with the erroneous decision occasioning a
grave failure of justice—Code of Civil Procedure. 1908 (V of 1908),
Section—115, and Order XLI Rule 31.
Abdul Mazid
Howlader and another Vs. Lahajuddin Howlader and others, 16 BLD (AD) 197.
Findings of
facts
Since
the lower appellate Court fully considered the oral and documentary evidence of
the parties, believed the plaintiffs case and came to the findings that the
defendants illegally dispossessed the plaintiffs from the suit lands and the
suit was filed within time and the said findings were made on appreciation of
the evidence on record, the High Court Division had little scope to interfere
in revision with the findings of the final Court of facts—Code of Civil
Procedure, 1908 (V of 1908), Section—115(1).
Haidernessa
and another Vs. Monowara Begum and others, 16 BLD (AD)280
Findings of
fact
A
finding of fact without proper consideration of the evidence on record is no
finding in the eye of law and as such it is not immune from attack in second
appeal.
Misreading
and non-consideration of the material evidence on record and erroneous
assumption of facts render a judgment untenable.
Lalu Uddin
Vs. Hemayet Hossain and others, 15 BLD (HCD) 43.
Finding of
facts
In
a second appeal findings of fact arrived at by the Courts below cannot be
reversed by the High Court Division unless those are vitiated by misreading of
the material evidence or non-consideration of material evidence affecting the
merit of the case— Code of Civil Procedure, 1908 (V of 1908), Section— 100.
Golam Moula
and ors Vs. Gourpada Das and ors, 17 BLD (AD) 310.
Finding of
facts
A
finding of fact arrived at by the lower appellate Court is not binding on the
High Court Division exercising revisional power if such finding is vitiated by
non-consideration of material evidence of vital witnesses— Code of Civil
Procedure, 1908 (V of 1908), Section—115.
Mst. Akiman
Nessa Bewa and ors. Vs. Harez Ali and others, 17 BLD (AD) 36.
Findings of
facts
A
finding of fact, whether concurrent or not, made by the lower appellate Court
is binding upon the High Court Division in revision unless the said finding is
vitiated by misreading and nonconsiderationc of the material evidence affecting
the ultimate decision of the case—Code of Civil Procedure, 1908 (V of 1908),
Section—115.
Amanatullah
and others Vs. Ali Mohammad Bhuiyan and another, 17BLD (AD) 199
Finding of
facts
When
the appellate Court as the final Court of facts affirms or reverses the
judgment of the trial Court on proper assessment of the evidence on record and
the findings do not suffer from any error of law, the case is concluded by
findings of facts and no interference is called for in revision U/S 115 C.P.C—Code
of Civil Procedure, 1908 (V of 1908), Section—115.
Md. Shah
Jahan and others Vs. Mir Hossain; and others, 17 BLD (AD) 218.
Finding of
facts
It
is a settled principle that the findings of fact, whether concurrent or not,
arrived at by the lower appellate Court is binding on the High Court Division
as a revisional Court except in certain well-defined exceptional circumstances,
such as non-consideration or misreading of the material evidence affecting the
merit of the case—Code of Civil Procedure, 1908 (V of 1908), Section—I 15.
Hazari Bala
Sana and another Vs. Niran alias Niranjan Mondal and others, 17 BLD (AD) 295.
Findings of
fact
Ordinarily
in revision the High Court Division should not interfere with the findings of
fact arrived at by the lower appellate Court upon re-appreciation of evidence.
In the instant case, the lower appellate Court reversed the findings of the
trial Court based upon proved facts, namely, that the pre-emptor had no
knowledge of the sale in question prior to 191.78 and in so reversing had drawn
a wrong conclusion upon proved facts. The learned Judge of the High Court
Division does not appear to have committed any error of law in restoring the
judgment of the trial Court after setting aside that of the lower appellate court—Code
of Civil Procedure, 1908 (V of 1908), Section—115.
Anwara
Khatun Vs. Md. Abdul Hye and others, 18 BLD (AD) 223.
Finding of
facts
When
the concurrent findings of fact arrived at by the Courts below are supported by
evidence on record and there being no error of law involving the case, there is
no scope for interference in revision—Code of Civil Procedure, 1908( V of
1908), Section—115.
Md. Abdur Rashid Vs. Shahajahan Ali and ors.,
18 BLD (HCD) 455.
Findings of
fact
It
is a settled principle that the findings of fact, whether concurrent or not,
arrived at by the lower appellate court, which is the final court of fact. is
binding on the High Court Division as a revisional court except in certain
well-defined exceptional circumstances, such as non-consideration or misreading
of the evidences affecting the merit of the suit— Code of Civil Procedure, 1908
(V of 1908), Section—115.
Md.
Nizamuddin and others Vs Rahima Bewa and others, 20 BLD (HCD) 144.
Findings of
fact
Section
100 of the Code of Civil Procedure does not authorise the High Court Division
to disturb the finding of fact of the Court of appeal below, the final Court of
fact arrived at on appreciation of the evidence even though the High Court
Division does not agree with the finding arrived at by the Court of appeal
below on consideration of the evidence on record—Code of Civil Procedure, 1908
(V of 1908), Section—100.
Hriday
Ranjan Dey and another v. Niranjan Dey being dead his heirs Probate Day and
others, 21 BLD (AD) 147.
Findings of
fact
Merely
because an original document was not brought through foreign office from abroad
it cannot be held that the same has no evidentiary value and that it is not a
genuine one. The concurrent finding of fact of the Courts below as to
genuineness of Ext. 1 being based on evidence, no interference is called
for—Code of Civil Procedure, 1908 (V of 1908), Sëction—115(1).
The Managing
Committee, Pirdangi S.I. Senior (‘Fajil) Madrasha & another Vs Md. Mozammel
Haque and others, 21 BLD (AD) 76.
FOREIGN
AWARD
Foreign
Award
Sections
12, 13 and 44(A) of the Code of Civil Procedure do not apply to foreign award
in Bangladesh. In India, the foreign awards are enforced by following a
separate procedure provided under the Foreign Award Recognition and Enforcement
Act, 1961. There is thus no difficulty in India in enforcement of foreign
award. [Per Latifur Rahman JI—Code of Civil Procedure, 1908 (V of 1908),
Section—12,13 and 44(A).
Bangladesh
Air Service (pvt.) Ltd. Vs. British Airways PLC., 17 BLD (AD) 249.
FRAMING OF
ISSUES
Framing and
determination of issues
In
a suit for mere declarations that the impugned decree was fraudulent, collusive
and not binding upon the plaintiff, the question of genuineness or otherwise of
the bainapatra is not at all a relevant issue. The learned Munsif was,
therefore, justified in rejecting the prayer of the plaintiff to frame an issue
on it—Code of Civil Procedure, 1908 (V of 1908), Order XIV.
Hasan Sikder
Vs. Jahurul Haque Molla and others, 15 BLD (HCD) 659.
Framing of
Issues
The
provision of Rule 2 of Order 14 C.P.C is mandatory and a Court is under mandate
of law to first decide an issue of law where an application has been filed by a
party for deciding a preliminary point of law— Code of Civil Procedure, 1908,
Order 14 Rule 2.
Manjur Ahmed
Chowdhury Vs. gul banu and others, 14 BLD (HCD) 1
Framing of
issues
Failure
to frame a particular issue does not affect the decision of the Court if the
points involved are substantially covered by the pleadings of the parties and
the evidence on record duly considered by the Court— Code of Civil Procedure,
1908 (V of 1908), Order XIV Rule 1.
Hachina Be
gum and others Vs. Mostt. Mahfuza Akhter and others, 16BLD (HCD) 374.
Framing of
Issues obligatory
This
Rule casts an obligation upon the trial Court to frame issues upon the material
assertions made by one party and denied by the other and this can be done at
any stage of the proceeding if found necessary. The only requirement of law is
that the contending parties are to be afforded adequate opportunity to contest
the issue—Code of Civil Procedure, 1908 (V of 1908), Order XIV Rule I
Mohammad
Abdul Jalil Miah Vs. Nirupama Ritchil and others, 17 BLD (AD) 63.
Framing of
issues
Mere
omission to frame an issue is not fatal to the trial of a suit. Omission to
frame issue is an irregularity which may or may not affect the decision of a
suit on merits—Code of Civil Procedure, 1908 (V of 1908), Order XIV Rule 1.
Daulat Ahmed
and ors. Vs. Md. Mosharraf Hossain and ors., 17 BLD (HCD) 607.
Framing of
suits
Although
this Rule requires that the plaintiff should specifically state the reliefs he
prays for the Court is always competent to grant any incidental and relevant
relief not specifically sought for in the plaint if it is found just and proper
in a given case—Code of Civil Procedure. 1908 (V of 1908), Order VII Rule 7.
Comndr.
(Retd) A.A. Chowdhury Vs. A.K.M. Imam Hossain and others, 16 BLD (HCD) 510.
FRAUD
Fraud
A
party to the suit or any proceeding may challenge the judgment or order passed
by a Court on the ground of want of jurisdiction or on the ground of fraud and
collusion. In such a case, fraud must be specifically pleaded and
proved—Evidence Act, 1872(1 of 1872), Section —44.
Md. Osman
Gani Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD)
510.
Fraud
In
a ease of fraud, the quet1pn f limitation ‘will run from the date of Knowledge
and not from the date of execution of the disputed document.
Mossammat
Hosna Banu and others vs. Keramat Ullah Malitha and others, 18 BLD (AD)10
Fraud
In
the deed under pre-emption no land was transferred in favour of the alleged
transferee. Therefore the alleged deed of transfer cannot be construed to be a
kabala and more over it is found that the said deed has been created by
practicing fraud upon the vendor and the fraud has vitiated everything.
Sanaullah @
Sanaullah Molla Vs. Abdus Sattar Sheikh & ors, 19 BLD (HCD) 41.
FUNCTION OF
THE SUPREME COURT
Function of
the Supreme Court
The
function of the Supreme Court is to interpret the law given by the Parliament
and the Constitution in exercise of its power conferred by the Constitution
itself. The function of Supreme Court s to point out the mistakes, if any and
it can declare an enactment ultra vires which is inconsistent with and
repugnant to the Constitution.
Md. Raufique
Hossain Vs. The Speaker, Bangladesh Parlament and others, 15 BLD (HCD) 383.
FUNDAMENTAL
DUTIES
Fundamental
Duties
In
Bangladesh Constitution there is no corresponding chapter on fundamental
duties, SQ there is qualitative and fundamental difference between the powers
of the High Court Division of the Supreme Court of Bangladesh under Article 102
and those of the Indian High Court under Article 226 of the Constitution of
India.
Khondaker
Modarresh Elahi Vs The Government the People’s Republic of Bangladesh, 21 BLD
(HCD) 352.
FUNDAMENTAL
RIGHTS
Fundamental
Right
Right
to prefer appeal or revision to a superior Court.
Right
to prefer appeal or revision to a superior Court is not a fundamental right,
but a creature of statute.
Md. Nurul
Amin Vs. Pubali Bank, 13 BLD (HCD) 617.
Fundamental
Rights
The
Government’s offer to sell the case property to the petitioner attendant with
the condition that the petitioner must not have a residential house in Dhaka,
in effect, negates the petitioner’s right in pursuing his profession as a
businessman. This condition offends the concept of equality before law and the
right to pursue any lawful profession or occupation. Persons performing any
function in connection with any affair of the Republic must maintain high
degree of vigilance so that fundamental rights as guaranteed by the
Constitution are preserved, protected and safeguarded—Constitution of
Bangladesh, 1972, Articles -27 and 40.
Nasiruddin
Ahmed Vs. Government of Bangladesh and another, 14 BLD (HCD) 339.
Fundamental
Rights
Freedom
of speech and expression and freedom of the press as enshrined in the
Constitution mean and include expression, publication, distribution and
circulation of anything and any idea subject to the restrictions that may be
imposed by a law for securing any of the eight purposes mentioned in clause (2)
of Article 39 of the Constitution— Constitution of Bangladesh, 1972, Article –
39(2) and Note-Books (Prohibition) Act, 1980 (XII of 1980).
Dewan Abdul
Kader alias Mustafa Kamal and others Vs. Government of Bangladesh and others,
14 BLD (HCD) 418.
Fundamental
Rights
The
Court has the constitutional responsibility to ensure that the fundamental
rights of .a citizen are preserved and protected. The Court gave necessary
directions to the relevant authorities for taking appropriate actions against
those who are responsible for colossal negligence of duty causing immense
sufferings to innocent citizens—Constitution of Bangladesh, 1972,
Articles-102(l) and 148.
The State
Vs. Deputy Commissioner, Satkhira and others, 14 BLD (HCD) 266.
Fundamental
Rights
Article
31 of the Constitution provides that every citizen has an inalienable right to
the protection of law wherever he may be, and no action detrimental to his
life, liberty, reputation or property can be taken except in accordance with
law while Article 32 provides that no person shall be deprived of his life or
liberty save in accordance with law— Constitution of Bangladesh, 1972, Article—
31 and 32.
Nurun Nahar
Zaman Vs. The State and another, 15 BLD (HCD) 537.
Fundamental
Rights
Article
36 of the Constitution provides that subject to any reasonable restrictions
imposed by law in the public interest, every citizen has the right to move
freely throughout Bangladesh, to reside and settle at any place therein and to
leave and re-enter Bangladesh This right is also recognised by the Bangladesh
Passport Order, 1973. Only under certain specified conditions this right can be
taken away or curtailed.
An
order passed by the Passport Authority revoking a passport is subject to
judicial scrutiny. Any procedure which infringes on the constitutional right of
a citizen to go abroad, without giving him an opportunity of being heard, must
be held to be unfair and violative of the constitutional right—. Constitution
of Bangladesh, 1972, Article— 36, Bangladesh Passport Order, 1973 (P.0.9 of
1973), Articles —397(1)(2).
Md. Ekram
Ibrahim Lody Vs. Bangladesh and others, 15 BLD (HCD) 157.
Fundamental
Rights
Disposal of
property
The
petitioner, a citizen of Bangladesh, belonging to the Marwari Community
presented for registration before the local Sub Registrar a sale deed duly
executed by him but the latter refused to accept it for registration on the
ground that it was not accompanied by permission and I or no objection
certificate of the Deputy Commissioner concerned as is required by Home
Ministry’s Memo No. 320(19) -SW: MA (Ni-i) dated 10.6.1975 and returned the
deed to the petitioner.
The
restrictions imposed by the impugned Memo are not by way of any promulgation of
law but were by way of an administrative order which has no sanction of law.
The order having imposed restrictions on the right of the petitioner to dispose
of his property is discriminatory and violative of the fundamental right guaranteed
by the Constitution.
Raj Kumar
Behani Vs. Bangladesh and others, 15 BLD (HCD) 633.
Ref:
Chitta Ranjan Sutar Vs. Secretary Judicial Department, Govt. of East Pakistan.
17 DLR 45 1-Cited.
Fundamental
Rights
Right to
life—Protection
of life under Article 31 of the Constitution means that one’s life can ‘not be
endangered by any action which is illegal. But protection of life under Article
31does not mean protection of an illegal action of any person—Constitution of
Bangladesh, 1972, Article—3 1.
Gias Uddin
Vs. Dhaka Municipal Corporation and others, 1 7BLD (HCD) 577
Fundamental
Rights—Right to life
Our
Constitution both in the directive State Policy and in the preservation of the
fundamental rights provided that the State shall direct its policy towards securing
that the citizens have the right to life, living and livelihood, Thus our
‘country is pledge bound within its economic capacity and in an attempt for
development to make effective provision for securing the right to life,
livelihood etc. As to the fundamental State policy which is not enforceable and
the fundamental rights the Indian Supreme Court held in the case of Olga Talis
Vs. Bombay Municipal Corporation (1985) 3 S.C.C. 454 that “Article 37 provides
that the directive principles, though not enforceable by any Court, are
nevertheless fundamental in the Governance of the country. The principles
contained in Articles 39(a) and 41 must be regarded as equally fundamental in
the understanding and interpretation of the meaning and content of fundamental
rights. If there is an obligation upon the State to secure to the citizens an
adequate means of livelihood and the right to work, it would be sheer pedantry
to exclude the right to livelihood from the content of the right to life. The
State may not, by affirmative actions, be compellable to provide adequate means
of livelihood or work to the citizens. But any person, who is deprived of his
right to livelihood except according to just and fair procedure established by
law, can challenge the deprivation as offending the right to live conferred by
Article 21—Constitution of Bangladesh, 1972, Articles —27, 30 and 32.
Ain 0 Salish
Kendra (ASK) & ors. Vs. Government of Bangladesh & ors., 19 BLD (HCD)
488
Fundamental
Rights
Right to
life
The
word ‘life’ in Pakistan Constitution is similar to the word ‘life’ appearing in
Article 21 of the Indian Constitution and in Article 31 of Bangladesh
Constitution. Right to life in Article 31 means right to sound mind and health.
Professor
Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 341
Fundamental
Rights
Right to
life
The
expression ‘life’ does not mean merely an elementary life or sub-human life but
connotes a right to a decent and healthy way of life in a hygienic condition—
Constitution of Bangladesh, 1972, Article— 32.
Dr.Mohiuddin
Farooque, (BEL4) v. Bangladesh and others, 22 BLD (HCD) 534.
Fundamental
Rights
Right to
office
The
right .to office one holds and the right to pay/salary one draws are vested
during the continuance of the employment. If any action affecting altering or
infringing upon any such right taken not in accordance with law must be struck
down otherwise the protection against arbitrary action available under the
Constitution becomes meaningless— Constitution of Bangladesh, 1972, Article- 102
Md. Amirul
Islam & ors. Vs Thana Nirbahi Officer, Lalpur, Natore, 20 BLD (HCD) 369.
Fundamental
Rights
Right to
profession
All
citizens of the country shall enjoy a fundamental right to enter, upon any
lawful profession or occupation and to conduct any lawful trade or
business—Constitution of Bangladesh, 1972, Article—40.
Alhaj
Habibur Rahman and others v. The Secretary, Ministry of Environment and Forest
and others, 22 BLD (HCD) 521.
Fundamental
Rights
Right to
Religion
The
law enforcing agencies may take any lawful steps to ensure law and order
situation in a particular area or a particular place due to the activity of any
religious group but there is no law which allows the law enforcing agencies to
prohibit a particular religious group from observing their religious rites and
functions for an indefinite period—Constitution of Bangladesh, 1972, Article—41.
Dewanbagh
Darbar Sharif and another v. The Government of Bangladesh and others, 22 BLD
(HCD) 401.
Fundamental
Rights
Creation
and naming of a new Division on the strength of Sectiori2(l) of the Regulation
does not offend any of the fundamental rights guaranteed by our Constitution
and as such the Gazette notification to that effect cannot be declared
unlawful—Bengal Revenue Commissions Regulation, 1929 (Beng. Rev. No. I of
1929).
Mizan
Howlader Vs. Bangladesh and another, 16 BLD (HCD) 5.
Fundamental
Rights
Protection
of life and liberty
Right
to life is a fundamental right guaranteed under the Constitution and as such it
is enforceable in law. The right to life envisaged under Articles 31 and 32 of
the Constitution includes protection of health and normal longevity of a
citizen from threats of manmade hazards unless that threat is sanctioned by
law. Right to life is not thus confined to protection of life and limbs only
necessary for full enjoyment of life but it also includes, amongst others,
protection of health and normal longevity of an ordinary human
being—Constitution of Bangladesh, 1972, Articles—3 1 and 32.
Dr.
Mohiuddin Farooque Vs. Bangladesh and others, 16 BLD (HCD) 490.
Fundamental
Rights
Freedom
of speech and expressions as enshrined in Article 39(l)(a) of the Constitution
cannot be limited only to original ideas and views but it should extend to the
views and comments of others. [Per Latifur Rahman,J].
Bangladesh
National Curriculum and Text Book Board Vs. A.M. Shamsuddin and others, 17 BLD
(AD) 94.
Fundamental
Rights
Right
to liberty, right to movement and right to freedom are so much valuable
fundamental rights of each citizen that no authority can take these away
without due course of law—Constitution of Bangladesh, 1972, Article—44 and 102.
Bilkis
Akhter Hossain Vs. Bangladesh and others, 17 BLD (HCD) 395.
Fundamental
Rights
Since
the profession or occupation of the sex-workers has not been declared unlawful
by any enactment, however immoral their profession or occupation may be, the
sex workers are entitled to the protection of Articles 32 and 40 of the
Constitution safeguarding the life and property of the citizens—Constitution of
Bangladesh, 1972, Articles—32, 40 and 120.
Sultana
Nahar Vs. Bangladesh and others, 18 BLD (HCD) 363.
Fundamental
Rights
The
fundamental right enshrined in Article 35(2) of the Constitution protects a
person’s right so that he cannot be proceeded with twice for the same offence,
the American expression of which is ‘double jeopardy’. But the proceeding must
be in the nature of a criminal proceeding before a Court of Law or a Judicial
Tribunal and not a proceeding before a Departmental Enquiry Committee— Constitution
of Bangladesh, 1972, Article— 35(2).
Shaikh Md.
Harun-or-Rashid Vs. The Secretary, Ministry of Jute, Govt. of Bangladesh and
others, 18 BLD (HCD) 183.
Fundamental
Rights Enforcement of
If
the Government nominates some per- 224. Sons for employment in the service of
the Republic in pursuance of a statutory provision or rules the nominated
persons acquire a legal’ right for enforcement of the same. But if the
executive prepares a list of persons for appointment in the service of the
Republic without the backing of any law behind it and actually appoints some
persons from the list, the others left out can come to the High Court Division
not for enforcement of any legal right but for enforcement of their fundamental
right—Constitution of Bangladesh, 1972, Article—44
Government
of Bangladesh Vs. Md. Jahangir Hossain & ors., 19 BLD (AD) 170.
Fundamental
Rights
The
question of protection under section 76 and 79 of the Penal Code can be raised
by way of legal defence against prosecution of the petitioners but such right
of protection is no fundamental right of the petitioners as envisaged under
Part III of the Constitution— Constitution of Bangladesh, 1972, Article— 102,
Penal Code, 1860 (XLV of 1860). Sections—76 and 79.
A.K.M.
Qudratullah Mia and ors Vs. Government of Bangladesh and ors, 19 BLD (HCD) 109
Fundamental
Rights
A
search by itself does not operate as a total restriction on the right of a
citizen to hold and enjoy his property and as such action is a temporary
measure for a limited purpose of investigation and interferes with the right of
citizen to be secured in his home against entry, search and seizure provided
such acts are conducted and done in a lawful manner— Constitution of
Bangladesh, 1972, Article— 43(a), Code of Criminal Procedure, 1898 (V of
18-98), Section—96.
Government
of Bangladesh & ors Vs Hussain Mohammad Ershad, 20 BLD (AD)
Fundamental
Rights
The
provisions as to fundamental rights in the constitution are self executory and
any violations of the provisions of article 31 is subject to judicial review
and this Court would remedy the wrong by issuing appropriate declarations and
direction for enforcement of any of the fundamental rights— Constitution of
Bangladesh, 1972, Articles— 31 and 102.
Professor
Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
Fundamental
Rights
Human
Rights—violation of
Keeping
in jail custody any prisoner after the expiry of his terms of the sentence is
violation of fundamental human rights. It was the duty of the Government to
take steps in time for his release—Constitution of Bangladesh, 1972,
Articles—26, 27, 31, 32 and 35.
Dr. Faustina
Pereira Advocate, (ASK) Vs The State and others, 21 BLD (HCD) 499.
Fundamental
Rights
Equal
protection of right
Article
27 of the Constitution enshrines that all citizens are entitled to equal
protection of law. Article 31 postulates that every citizen has the right to
enjoy protection of law and this right is an inalienable right of every
Citizen. Article 32 states that no person shall be deprived of life or personal
liberty save in accordance with law. Article 3 of the Universal Declaration of
Human Rights adopted by General Assembly of the United Nations provides that
everyone has a right to life, liberty and security of person. Articles 27, 31
and 32 impose a duty and obligation on the State to protect and safeguard a
citizen of the Republic and to ensure his security—Constitution of Bangladesh,
1972, Articles—27, 31 and 32, Universal Declaration of Human Right, Article—3.
Tayazuddin
and another Vs The State, 21 BLD (HCD) 503.
Fundamental
Rights
No
property of a citizen shall be compulsorily acquired save by authority of law
and that the law is that the land of a citizen can be acquired by the
Government only for public purposes and so logically Government can retain the
acquired land only for another public purpose of public, if unutilised—
Constitution of Bangladesh, 1972, Article— 42.
Md. Mofizul
Islam Vs The Secretary, Ministry of Land and others, 21 BLD (HCD) 159.
Fundamental
Rights
Gross
violation of fundamental rights should shock the judicial conscience and force
it to leave aside the traditional procedure which shackles the locus standi and
gives standing to the petitioners. Unless this Court responds to it,
governmental agencies would be left free to subvert the rule of law to the
detriment of the public interest— Constitution of Bangladesh, 1972, Article—
102.
Ekushey
Television Ltd. & ano. v. Dr. Chowdhury Mahmood Hasan & ors., 22 BLD
(AD) 163.
Fundamental
Rights
Keeping
in jail any prisoner after serving Out the sentences amounts to violation of
the fundamental human rights as guaranteed by the Constitution of the
country—Constitution of Bangladesh, 1972, Article—32, Jail Code, 1894 (IX of
1894), Rules—78, 370 to 578.
Dr. Faustina
Pereira Advocate, (ASK) Vs The State and others, 21 BLD (HCD) 499.