BLD’s Ten
Years Civil Digest (1993—2002) Index
MAINTAINABILITY
Maintainability
When
the house in question is being held by a Government department neither as a
tenant nor as a trespasser but under the cover of an alleged acquisition of
property, the propriety of which is really under challenge, the High Court
Division was wrong in summarily dismissing the writ petition.
The
respondents in the case being Government functionaries, they are duty bound
under the law to explain under what authority they are occupying the house in
question.
Sheikh
Liaquat Ali and others Vs. The Secretary, Ministry of Land Reforms and Land
Administration and ors., 16 BLD (AD) 6.
Maintainability
The
writ petition being brought against the Government and the DTO, a statutory
authority and as such, absolutely maintainable as the nature of the relief sought,
could not have been otherwise available to the petitioner. The grievance is not
against the CCCI either in its capacity as a company or a trade organisation,
but against the DTO who failed to discharge its statutory duties under section
9 of the Ordinance—Constitution of Bangladesh, 1972, Article-102, Trade
Organisation Ordinance, 1961(XIV of 1961), Section—9.
Kamaluddin
Ahmed Vs. Director of Trade Organisation, Ministry of Commerce,20 BLD (IICD)
457
Maintainability
The
house in question not being held by the National Security and Intelligence
Department of the Government either as a tenant or as a trespasser, but under
the cover of an alleged acquisition of property, which was really under
challenge the High Court Division was wrong in summarily rejecting the writ
petition on the ground of maintainability.
All
the respondents in the case being Government functionaries they are duty bound
under the law to explain under what authority other than under the cover of the
alleged order of acquisition in the L.A. Case in question they are occupying
the case house and as to whether the order of acquisition. if any, is still
good.
Sheikh
Liaquat All and others Vs. The Secretary, Ministry of Land Reforms and Land
Administration, Government of Bangladesh & others, 16 BLD (AD) 6.
MAINTENANCE
Maintenance
The
Family Courts Ordinance, 1985 has not, ousted the jurisdiction of a Magistrate
to exercise power under section 488 Cr.P.C. The Provision of the Family Courts
Ordinance, 1985 are applicable not only to the Muslim Community but to other communities
as well—Code of Civil Procedure, 1908. Seetion-488 and Family Courts Ordinance,
1985(XVIII of 1985).
Meher Negar
Vs. Md. Mojibur Rahman, 14 BLD (HCD) 467.
Maintenance
for child
Even
if the children prefer to live with the mother due to natural affection or
attachment for her, that would not in any way affect the liability of the
father to maintain the children. If the father objects to the mothers custody
of the children and wants to assert his own legal right, the proper course for
the father would be apply for his custody, but so long as the children remain
with the mother, he cannot on any plea refuse to pay maintenance for the
children.
Baziur
Rahman Sikder vs. Mrs. Tahera Begum Shamima, 18 BLD (HCD) 519.
Maintenance
Section
5 of the Family Courts Ordinance gives exclusive jurisdiction to the Family
Court to try any suit .for maintenance. An application for maintenance under
Section 488 of the Code of Criminal Procedure is not a suit and as such the
provisions of the Family Courts have not taken away the power of the Magistrate
to order for maintenance under Section 488 Cr.P.C.
Zinnatan
Nessa Vs. Md. Kaloo Mia, 15 BLD (HCD) 545.
Maintenance
Maintenance
in the light of the Holy Quran. Relying
on Sura At-Talaq, verse 6(65:6); and opening verse of Sura At-Talaq (65:1.)
There
is a clear direction in respect of a pregnant woman who has been divorced and the
direction is to bear her expenses till she has delivered. In the previous verse
it has been stated that in the case of a pregnant woman her period of Iddat
will be till delivery. It is therefore apparent that the maintenance has been
related to the period of iddat, The interpretation given by the learned Judges
is thus apparently in conflict of the aforesaid verse… From the above, it is
clear that the interpretation given by the learned Judges is not and cannot be
acceptable because it brings conflict and even on the general criterion of
interpretation as they also would not deny that a document should be read as a whole,
the interpretation of the learned Judges must be rejected.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Maintenance
In
the Holy Quran there is no clear direction for payment of maintenance to a
divorced woman. Verse 228 of Surah Baquara translated in Bengali reads as
follows: “???
?????????????? ??????? ???? ??? ??? ??????? ??????? ????”?
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD(AD) 27
Maintenance
Where
a magistrate has exercised his maximum power in granting maintenance in a
previous case that case cannot be treated as a pending case, thereby barring a
suit in the Family Court for a claim for enhanced maintenance due to changed
circumstances— Family Courts Ordinance 1985, S.ections—3 and 5, Code of Criminal
Procedure 1898 (V of 1898), Section—488
Kowsar
Chowdhury v. Latifa Sultana, 22 BLD (HCD) 241.
MALAFIDE
Malafide
It
has been consistently held by the Appellate Division that malafide or
coram-nonjudice proceedings are not immune from the scrutiny of the Supreme
Court notwithstanding any ouster clause in the relevant law— Constitution of
Bangladesh, 1972, Articles—102.
Muhammad
Ullah (Stenographer) Vs. The Secretary, Ministry of Home Affairs and others, 16
BLD (HCD) 18.
Malafide
To
substantiate allegations of malafide it is necessary that malafide is
specifically pleaded and proved by material evidence.
Professor
Dr. Md. Yusuf Ali Vs. The Chancellor of Rajshahi University, Rajshahi and
others, 18 BLD (HCD) 1.
Malafide
As
malafide vitiates every exercise of power, a malafide exercise of pleasure by
the President under Article 134 of the Constitution can be brought within the
purview of judicial review, if the other provisions of the Constitution are not
a bar—Constitution of Bangladesh, 1972, Article—134
Rear Admiral
A.A. Mustafa Vs. Bangladesh, 19 BLD (AD) 227.
Malafide
Although
according to the notice from RAJUK the petitioner was to produce the approved
plan for the building before the authorised officer of RAJUK, he produced the
same before the Chairman of RAJUK, and the subsequent show cause notice does
not mention that the plan was not produced before the appropriate authority.
The
nature of the impugned notices clearly shows that the actions purported to have
been taken were malafide and in violation of section 3B—Building Construction Act
1952 (E.B. Act No. I of 1953), Section— 3B.
Mohammad
Amir Hossain v. Authorised Officer, R. U.K., 22 BLD (HCD) 365.
MALICE IN
LAW
Malice in
law
in
local government election no step in the election process can be challenged
under Article 102 of the Constitution unless the impugned order passed by the
authority concerned is coram non judice or it is afflicted with malice in law.
This is equally applicable to parliamentary and presidential
elections—Constitution of Bangladesh, 1972, Article —102.
A.K.M.
Mayeedul Islam Vs. Bangladesh Election Commission and others, 16 BLD (AD)204
MANAGING
COMMITTEE
Managing
Committee—Bar to be elected
It
cannot be said that barring a thrice elected Member of the Managing Committee to
stand for election again till the lapse of 2 years since his last term expired,
is an unreasonable restriction—Co-operative Societies Ordinance, 1984.
Md. Abdus
Sattar Vs. Bangladesh and others, 13 BLD (AD) 103.
Managing
Committee
It
provides that if there be any complaint regarding the election to the Managing
Committee, it shall have to be made within 3 days of the Election to the Deputy
Commissioner concerned with a copy of the complaint to the Board and the
Headmaster. The Deputy Commissioner is required to dispose of the complaint
within 30 days of the receipt of the same.
Non-disposal
of the complaint petition by the Deputy Commissioner within 30 days means that
he did not act according to Regulation 9(20) and as such his action is
malafide—Board of Intermediate and Secondary Education, Dhaka (Managing
Committee of the Recognised Non-Government Secondary Schools) Regulations.
1977, Regulation — 9(20).
Md. Nazmul Hassan Bhuiyan Vs. The Deputy
Commissioner, Narayanganj and others, 15 BLD (HCD) 155.
Managing
Committee
Powers and
functions of-
Although
the Thana Nirbahi Officer is the Chairman of the Managing Committee of the
Madrasha and by the impugned order he directed the Principal to allow the
petitioner to join his post, the order so passed by the Thana Nirbahi Officer
independent of the Managing Committee cannot be considered as an order of the
Governing Body or the Managing Committee. Such an order clearly falls outside
the purview of Regulation 13 and as such it has no legal force— Bangladesh Madrasha
Education Board (Governing Bodies and Managing Committees) Regulations, 1979,
Regulation Nos. 4, 5 and 3
Kazi Abdur
Rouf Vs. Govt. of Bangladesh and others, 16 BLD (HCD) 607.
Managing
Committee
There
is no allegation or any dispute as to the validity of the election of the
members from the category of guardians and teachers and as such their election
to the Managing Committee cannot be impeached. If there is any irregularity in
the election of a member from a particular category, the election of the
members cannot be challenged nor can the Managing Committee be dissolved—
Constitution of Bangladesh, 1972, Article— 102, Board of intermediate and
Secondary Education, Jessore (Managing Committee of the Recognised
Non-Government Secondary Schools) Regulation, 1977, Regulation—7, 9(20 )(22).
Molla
Habibur Rahman Vs. Board of Intermediate and Secondary Education, Jessore &
others, 21 BLD (HCD) 269.
MANDATORY
INJUNCTION
Mandatory
injunction
Exercise
of the extra-ordinary power of granting mandatory injunction would not be fit
and proper, particularly when such injunction would interfere with a
development work undertaken by the Municipality with foreign aid.
Syeda Ohida
Begum Vs Jahangir Alam and others, 13 BLD (AD) 198.
Mandatory
injunction
In
a fit case the court can issue mandatory injunction in ad-interim form but such
power should be exercised very sparingly for preventing an imminent danger to
life or property or for the purpose of restoring or maintaining status quo—Code
of Civil Procedure, 1908 (Act V of 1908),Section—151 and Order XXXIX Rules I
and 2 C.P.C..
Dr. Halida
Hanum Akhter Vs. Dr. Firdosi Khanam, 14 BLD (AD) 195.
Mandatory
Injunction
A
court passes an order of temporary mandatory injunction when it is satisfied
that a party taking law in his own hand has altered the status quo in respect
of the suit property existing at the time of filing of the suit. A party
altering the position existing at the time of filing of the suit must be
compelled to restore status quo ante—Code of Civil Procedure, 1908 (V of 1908),
Section—151.
Md. Abul
Hayat Sunu Vs. M.A. Reja, 15 BLD (HCD) 185.
Mandatory
injunction
Mandatory
injunction is a discretionary relief and is granted in favour of the aggrieved
party only when it is proved that the offending party has committed an illegal
act in relation to the subject-matter of the suit in violation of a legal right
in a property in the suit—Code of Civil Procedure, 1908 (V of 1908),
Section—151.
Ramizuddin
alias Kalu Miah Mistri and others Vs. Kazi Tajul Islam and others, 17 BLD (HCD)
424.
Mandatory
injunction—Lapse of time
Since
the order of mandatory injunction remained in abeyance for more than 2 years
because of the stay order granted by the appellate Court and of its
subsequently disallowing mandatory injunction, it was held to be improper and
inequitable to decide the legality or propriety of the order of mandatory
injunction when the suit is ripe for peremptory hearing. The proper course
under such circumstances should be the expeditious disposal of the suit.
Titas Gas
Transmission and Distribution Company Ltd. Vs. Md. Zakir Hossain, 17BLD (AD) 39.
MARRIAGE
Marriage
Mere
living together by the petitioner and the opposite party as found ‘by some of
the PWs does not bring the couple within the bond of marriage.
Anwar
Hossain Vs. Mamata Begum, 19 BLD (HCD) 435.
MARTIAL LAW
Martial Law
Courts Judgment
Though
ordinarily the judgment of the Martial Law Court passed during the Martial Law
period cannot be challenged in the Civil Court even after the withdrawal of Martial
Law, after it was accorded constitutional validity yet instant case being
transferred to the Special Martial Law Court by the Zonal Mar-’ tial Law
Administrator having no power to do so, the trial of the case and the impugned
order of conviction passed by the Special Martial Law Court must be held to be
without jurisdiction and as such coram-non-judice and malafide. The impugned
judgment is quashed—Constitution of Bangladesh, 1972, Articles—102.
Muhammad
Ullah (Stenographer) Vs. The Secretary, Ministry of Home Affairs and others, 16
BLD (HCD) 18.
Martial Law
Regulation
Law
does not provide for a further review at the instance of an aggrieved ,party
and as such there is no reason to assume that a review petition is in fact
pending before any authority for which a forum is required to be
created—Martial Law Regulation No. I of 1982, Regulation—3(3) and 3(5).
Mr. Abdul
Hakim Vs. Govt. of Bangladesh and ors., 17 BLD (HCD) 317.
Martial Law
The
concept of Martial Law is foreign in our Constitution. During the period of
Martial law many acts and things were done in pursuance of those Martial Law
Regulations. Hence it was necessary to give a constitutional validity,
ratification and confirmation to ensure constitutional continuity. By imposing
Martial Law existing legal order was changed and a new legal order was
promulgated outside the constitutional mandate and as such the constitutional
coverage was sought to be given by paragraphs 3A and 18 of the Fourth Schedule.
As a matter of fact, Constitution (Fifth Amendment) has given a post facto
validation to all acts and things of that period. These paragraphs are like
Indemnity Act which is passed after every declaration of Martial Law, ratifying
and validating all acts and things done during that period. [Per Latifur
Rahman, J.]
Shahriar
Rashid Khan Vs Bangladesh and others, 18 BLD(AD) 156.
MEMBERS OF
PARLIAMENT
Members of
Parliament
Salary,
Emoluments, Allowances and other benefits are recover-able
Receiving
of salary, emoluments, allowances and other benefits by the absentee members of
the Parliament is illegal and unauthorised. The illegal and unauthorised
receipts of salaries, emoluments and allowances by the absentee members of the
Parliament without leave of the Parliament are recoverable from them by appropriate
authority under due process of law.
Md. Anwar
Hossain Vs. The Speaker of Bangladesh and others, 15 BLD (HCD) 344.
Ref:
Bangladesh Vs. Goasett, 12 QBD 273; Fazlul Kader Chowdhury Vs. Abdul Huq, PLD
1963 (SC) 486; PLD 1963 Page 539-Cited.
Member of Parliament
Members
elected from a particular constituency have overall and multifaceted
responsibilities to look after the welfare of their constituencies and their
involvement in the development work of their constituencies as far as possible,
is desirable. The spirit of any democratic Constitution including ours is to involve
the locally elected Member of Parliament not, only national matters but also in
local matters or in the development activities of his constituency. Therefore,
the petitioner has a vested interest and that interest has become a legal
interest because of the fact that the circulars are meant to be acted upon, by
all concerned, by making the petitioner not only a privy but a party as the
adviser to the Thana Committee.
Barrister
Ziaur Rahman Khan Vs The Government of Bangladesh, 20 BLD (HCD) 120.
Member of
Parliament—Woman Member
Each
woman member from the reserved seats is a member representing ten
constituencies. They cannot really be called the Member of Parliament only of a
particular constituency of the ten constituencies they represent. They are not
even elected by the voters of a constituency. So consulting them in convening a
meeting of the Thana Parishad in place of the locally elected members of
Parliament will be against the intention of the Rule and as such the Thana
Nirbahi Officer has acted illegally by not inviting the petitioner in the
meetings or by not consulting him in fixing a date of meeting.
Barrister
Ziaur Rahman Khan Vs The Government of Bangladesh, 20 BLD (HCD) 120.
Ref:
Kazi Nurul Islam Vs. Sirajul Islam, 4DLR(AD)36; Administrator, Ws. Delta
construction Ltd Vs. Chairman, 2 Labour Court, 28 DLR365; Ezhar Ali Mongal Vs.
Golam Rasul, 45 DLR653—cited.
MEMORANDUM
OF APPEAL
Non-mentioning
the section in the memorandum of appeal will not render the memorandum of
appeal ineffective or nugatory.
The Chief
Engineer (RHD) Vs. Managing Director, Foundation Engineer Ltd., 19 BLD (HCD)
142.
MINIMUM
WAGES
Minimum
wages
The
minimum wages fixed by the Government, by notification dated 12th July, 1980,
has the force of law—Minimum Wages Ordinance, 1961; (Ordinance No. XXXIX of
1961), Section 6.
Kazi
Giasuddin and another Vs. First Labour Court, Dhaka, and another, 13 BLD (HCD)
227.
Minimum
wages
By
an agreement, the wages could be varied only to the advantage of the worker and
not to his disadvantage.
Kazi
Giasuddin and another Vs. First labour Court, Dhaka and another, 13 BLD (HCD)
227.
Minimum
wages
The
statutory requirement is that an employer cannot force a worker to receive payment
of a minimum wage at a rate lower than what has been declared under the Minimum
wages Ordinance, 1961.
Kazi
Giasuddin and another Vs. First Labour Court, Dhaka and another, 13 BLD (HCD)
227.
MOHAMMADAN
LAW
Testamentary
Power of a Muslim
There
is no limit to the testamentary power of a Muslim concerning his or her
heirs/heiresses in respect of his estate. In this respect both the Shia Law and
Sunni Law have no legal force.
Khodeja Banu
Chowdhury Vs. Amin Ahmed Chowdhury and others, 17 BLD (HCD) 57.
MORTGAGE
Right of
redemption
When
the mortgagor accepts some money from the mortgagee subsequent to the deed of
mortgage, which is out and out a sale deed with condition of re-purchase, and
relinquishes his right of re-purchase, the subsequent deal takes place as a
separate transaction and it has the effect of redemption of the
mortgage—Transfer of Property Act, 1882 (IV of 1882), Section-60.
Tafzal Ahmed
Contractor Vs. Abdur Rahim and others, 16 BLD (AD) 160.
Redemption
of Mortgage
P.O.
88 of 1972 created special forum for restoration of mortgaged property. But it
did not take away right of redemption available to a mortgagor by filing a
mortgage suit under Order 34 of the Code of Civil Procedure.
In
that view of the matter High Court Division was totally wrong to hold that the
suit was not maintainable as the transaction was past and closed. [Per Latifur
Rahman, C.J; (delivering the majority judgment—State Acquisition and Tenancy
Act, 1950 (XXVIII of 1951), Sections—95 and 51A, President’s Order Nos. 88 and
136 of 1972, President’s Order No. 24 of 1973, Code of Civil Procedure, 1908(V
of 1908), Order 34.
Asmat Ali Vs
Abdur Rafique Mridha and others, 20 BLD (AD) 197.
MUTA WALLI
Mutawalli—Removal
of—
Sub-section
(2) of Section 32 of the Wakf Ordinance mandates that the removed mutawalli is
to hand over charge and without complying with such requirement of the
provision to sub-section (2) of Section 32, no appeal can be entertained by the
court against the order of removal—Wakf Ordinance, 1962 (I of 1962),
Sections—32(2) and 43.
Maulvi Afsar
Uddin Haider rind another Vs A.M. Mahiuddin and ors., 19 BLD (AD) 302.
Mutawalli
Allegation
against a Mutawalli about breach of trust is subject to the scrutiny under
section 52 of the Ordinance and since the legislature has set up a special
forum for the determination of any matter connected with the audit and accounts
of a wakf estate and if the accounts of a wakf estate have been submitted to
the proper authority all allegation including that of breach of trust must
thereafter pass the initial scrutiny of the auditor under section 53 of
Ordinance before it can be even held prima facie that a Mutwalli is guilty of
breach of trust unless the auditor held so and that vague allegations against
the Mutwalli as to his failure to disburse dues to the beneficiaries or other
act of misappropriation by him do not make out a case of breach of trust—Wakf
Ordinance, 1962 (I of 1962), Sections—52 and 53, Code of Criminal Procedure.
1898 (V of 1898), Section—561A.
Md. Nazrul
Islam Mollick Vs. Md. Khowaja Ali Biswas and another, 19 BLD (AD) 165.
NADABI-PATRA
DEED
Nadabi-Patra
Deed
A
nadabi-patra deed is usually understood as a deed acknowledging abandonment or
relinquishment of some interest in the property by its executant. By itself it
does not transfer any interest in the property nor does it confer any title on
the recipient. At best, it may be taken into consideration as a piece of
evidence to strengthen a claim of title based on other source. Under given
circumstances it may, of course, constitute waiver or estoppel against the
executant.
Khorshed Ali
Bhuiyan being dead his heirs 1(Ka) Shamsun Nahar and others Vs. GunjorAli and
others, 17 BLD (HCD) 470.
NECESSARY
PARTY
Necessary
parties
Ordinarily
in a suit filed against a company which is a registered one, the Directors and
Shareholders are not necessary parties. But where the allegations in the plaint
affect the executive members of a company or corporation in their personal
capacity, it cannot be said that they are not necessary parties.
Makbulur
Rahman and others Vs. Halima Textile Mills Ltd. Employees Provident Fund Trust,
Comilla, and others 14 BLD (HCD) 429.
Ref:
18 DLR 109; A.I.R. 1938 (Lahore) 799; 29 DLR(SC) 185; A.I.R. 1937(PC) 279;
A.I.R. 1946 (Lahore) 193-Cited.
Necessary
party or proper party
In
the absence of any material to show that the lessees are in possession of the
disputed property upon renewal of their lease by the Government on payment of
rent, they cannot be held to be necessary parties in a suit in which the
Government is a defendant— Code of Civil Procedure, 1908 (Act V of 1908), Order
I Rule 10.
Babar Ali
Pramanik and others Vs. Mesar Au Pramanik and ors, 14 BLD (AD) 235.
Necessary
Parties
At
any stage of the proceeding the court may order that the name of a party
improperly joined be struck out and that the name of any person, whose presence
is considered necessary for complete and effectual adjudication, be added.
Makbulur
Rahman and others Vs. Halima Textile Mills Ltd. Employees Provident Fund Trust,
Comilla and ors. 14 BLD (HCD) 429.
Necessary
party and Proper party
A
‘necessary party’ is one whose presence in a judicial proceeding is enjoined by
law. In the absence of such a party the suit cannot be said to be properly
constituted and no effective decision can be given. In such a case the suit is
liable to be dismissed.
A
‘proper party’ on the other hand, is one whose presence is not essential in the
constitution of the suit but whose presence is desirable for effectively and
completely adjudicating the matters in controversy. In the absence of a
necessary party the suit must fail but it is not always so in the absence of a
proper party—Code of Civil Procedure, 1908 (V of 1908), Order I Rule 3
Barada
Sundari Paul and others Vs. The Assistant Custodian, Enemy Property, Comilla
and others, 15 BLD (AD) 95.
Necessary
Party
In
a suit for ejectment of a tenant third party who is not claiming tenancy under
the plaintiff is neither’ a necessary nor a proper party. The presence of Dhaka
City Corporation as a defendant in the suit is neither necessary nor proper in
order to enable the Court effectively and completely to adjudicate upon and
settle all questions involved in the suit— Code of Civil Procedure 1908 (V of
1908), Order I Rule 10(2).
Noor
Mohammad v. Md. Noor Hossain and another, 22 BLD (HCD) 502.
Necessary
party in a partition suit
In
a partition suit even a third person claiming title to the suit property
adversely to the plaintiff and the defendants is a necessary party. In a proper
case, addition of party may be allowed even after the preliminary decree—Code
of Civil Procedure, 1908 (V of 1908), Order I Rule 10.
Abdur Rahman
and others Vs. Abdus Sattar and others, 17 BLD (HCD) 90.
NIKAH
REGISTRAR
It
authorises the Government to alter, extend, curtail or otherwise alter the
limits of any Union Parishad for which a Nikah Registrar ha8 been appointed by
granting, licence. Likewise, the Government can also curtail the jurisdiction
of any Union Parishad and declare any part of it as an ‘urban area” to be
included in any Pourashava—Muslim Marriages and Divorces (Registration ) Rules,
1975, Rule-10.
Kazi Md.
Amirul islam Vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs,
16 BLD (AD) 110.
Nikah
Registrar—Limits of area
‘The Government has the power under the second
proviso to section 4 of Act, 1974 to extend, curtail, alter or otherwise alter
the limits of any area. The petitioners licence as a Nikah Registrar has not at
all been revoked/affected but under, the second proviso’ of section 4 of the
Act his area has been curtailed which the Government is authorised under the
law to do—Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974),
Section—4.
Mr.
Raisuddin Vs. Bangladesh and others, 19 BLD (AD) 179.
Nikah
Registrar Association
When
the Government in exercise of its discretion gives approval to a Nikah
Registrar Association which appears to have majority support of the Nikah
Registrars of the Country the High Court Division while exercising power under
the writ jurisdiction cannot interfere with such discretion. The Court can
interfere only when the authority concerned exercises its discretion
arbitrarily or capriciously—Muslim Marriages and Divorces (Registration) Rules,
1975. Rule – 33(3).
Bangladesh
Muslim Marriage Registrars and Kazi Samity Vs. The Ministry of Law, Justice and
Parliamentary Affairs and others, 16 BLD (HCD) 425.
Nikah
Registrar
The
second proviso to section 4 of the Muslim Marriages and Divorces (Registration)
Act, 1974 empowers the Government to extend, curtail or otherwise alter the
limits of any area for which a Nikah Registrar has been licensed whenever the
Government deems it fit to do so.
Moulvi Md.
Khurshid Alam Vs. Bangladesh, Ministry of Law, Justice and Parliamentary Affairs
and others, 18 BLD(AD) 152.
NON-AGRICULTURAL
LAND
The
words non-agricultural land means a piece of land in joint possession and
enjoyment without partition which may form the tenancy or a portion of tenancy.
This interpretation will not throw the land open to the unlimited number of
persons but to persons who are co-sharer tenants under the same landlord in
respect of undivided land though such co-sharer tenants may be co-sharer
tenants of the tenancy– State Acquisition and Tenancy Act, 1950 (XXVIII of
1951), Section—96, Non-Agricultural Tenancy Act, 1949 (XXIII of 1949),
Section—24.
Syed Sad
Ali Vs Bidhan Chandra Dev and ors., 20
BLD(HCD) (HCD) 34.
Non-
agricultural land
Since
the lease-hold right in the land within the Dhanmondi Residential Area is
transferable and heritable and yearly rent is payable to the Government, its
owner is a [ non-agricultural tenant and not a tenant within the meaning of
section 85(2) of the Act. An application under section 24 of the
NonAgricultural Tenancy Act in respect of such land is thus maintainable in
law—NonAgricultural Tenancy Act, 1949 (XXIII of 1949), Section—24 and 85(2).
Dr. Ismat
Mirza and others Vs. Md. Mosaddique Hossain and others, 17 BLD (HCD) 152
NON-SPEAKING
ORDER
Non-Speaking
Order
The
High Court Division does not interfere with an order in revision unless the
subordinate Court has committed any error of law resulting in an error in the
decision occasioning failure of justice”. The order of the subordinate Court
may have been a bad order and improper one not having given any reasons in
support thereof but before interfering with the same the High Court Division is
required to examine whether the same has resulted in an erroneous decision
occasioning failure of justice—Code of Civil Procedure, 1908 (V of 1908),
Section—115.
Abdul
Motaleb Vs. Md. Ershad Ali and others, 18 BLD (AD) 121.
Non-speaking
order
While
passing any judicial order the Court should assign reasons in its support. This
is essential to enable the superior Courts and the litigant public to see as to
how he has exercised his judicial mind.
Jahura Bibi
and others Vs. Mvi. Habibur Rahman & ors, 15 BLD (HCD) 519.
Ref:
Fatima Moeen Vs. Addi. District Judge, Sheikhupura and ors, S.C.M.R. (1992) 1199;
35DLR 217; 41 DLR 77; 43 DLR 327; Kazi Mobarrak Ali Vs. Mohammad Yeasin
Mazamder and ors, 43DLR(AD) 60-Cited.
NOTICE
Notice of
show cause
A
plain reading of section 180 of the Act it is sufficient to hold that only that
person is entitled to get a show cause notice from whose custody the goods in
question is seized—Constitution of Bangladesh, 1972, Article—102, Customs Act,
1969 (IV of 1969), Section—180. V
Government
of Bangladesh an4 others Vs Abu Musa, 21 BLD (AD) 107.
Notice of
Talaq
Section
7(1) of the Ordinance provides for giving of notice of talaq to the chairman
and a copy thereof to the wife and provides for punishment for contravention
and this law overrides any other provision of any other law. But there being
clear intention to divorce by the affidavit on the part of the petitioner and
the same having been disclosed and produced before the lower appellate Court by
the petitioner himself, the petitioner cannot take advantage of his own wrong
and cannot claim the benefit of non-service of notice by him to the chairman,
he is bound by his admission— Muslim Family Law Ordinance, 1961 (VIII of 1961),
Section—7(1)
Md. Serajul
Islam Vs. Most. Helana Be- gum and others, 19 BLD(AD) 150
Notice
determining tenancy
In
the absence of any agreement to the contrary a 15 days’ notice for determining
tenancy is necessary. But if the tenant denies the landlords title the
necessity of serving any notice upon him is waived.
Even
if there was an agreement providing for 30 days notice for determining tenancy
in the original contract,. in the absence of any such provision in the fresh
agreement, 15 days notice will be sufficient—Transfer of Property Act, 1882 (IV
of 1882), Section– 106.
Alhaj Md.
Solaiman Vs. Sufia Akhtar Alam being dead her heirs Narjesa Rahamatullah and
others, 16 BLD (HCD) 304.
Presumption
of registered notice
Notice
sent by registered post at the correct address of the notice carries with it a
legal presumption of due service.
Musammat
Mohsena Khatun Vs. M/s. Habib Knitting Mills, 17 BLD (AD) 47.
Notice
Parties
to appear before Commissioner on notice
If
no notice is served on any of the parties to the suit to appear before the
Commissioner at the time of local investigation, the result of such local
investigation and the report cannot be accepted as evidence and the report is
submitted by the Commissioner is liable to be rejected—Code of Civil Procedure,
1908( V of 1908), Order XXVI Rule 18.
Mahtab
Ali Vs. Sree Kartick Chandra Karmakar
and ors, 18 BLD(HCD) 522.
Notice
The
High Court Division will only decide the legality of the notice under section
17 of the Act on perusal of the notice only and on no other supporting or
opposing materials— Bank Companies Act, 1991 (XIV of 1991), Section—17
Md. Satful
Alam Vs. Bangladesh Bank and others, 19 BLD (AD) 249.
Notice
For
holding a valid meeting of the Board of Directors written notice must be given
to all the members of the Board of Directors. If anyone is left out the
resolution taken in that meeting becomes invalid and section 95 of the Act
clearly provides that such notice shall be given in writing—Companies Act, 1994
(XVIII of 1994), Section—95
Ittefaq
Group of Publication Ltd. Vs. Arab Bangladesh Bank Ltd., 19 BLD (HCD) 113.
Notice
In
issuing the notices under section 17 of the Act the lender Bank acted neither
as a substantive authority nor as a Court nor as a tribunal. It acted purely in
an executive capacity under an authority granted by a statute if the show cause
notice is issued by an unauthorised or if the allegations in the show cause
notice on the face of it do not attract the mischief of section 17, a notice
under section 17 can certainly be challenged in the writ juris. diction and
declared to have been issued without lawful authority and to be of no legal
effect—Bank Companies Act, 199 l(XIV of 1991), Section—17.
Mr. A.S.F.
Rahman & ors. Vs. Bangladesh Bank & ors., 20 BLD (AD) 32.
Notice
The
High Court Division simply does not have the jurisdiction to decide the
validity of a notice under section 17 of the Companies Act upon adjudication of
documents both sides. The offending director may have a very good case to show
that he has no personal liability to the lender Bank at all. But it is not for
the High Court Division to determine or even hint at the offending director’s
personal liability or otherwise, except on admission, when the only lies before
it is whether the notice under section 17 of the Act is legal or not—Bank
Companies Act, 1991(XIV of 1991), Section—17.
Abdullah
Ahsan Vs. Bangladesh Bank & ors., 20 BLD (AD) 260.
Notice
It
is mandatory on the part of the employee of Bangladesh Biman to give a notice
as specified in the Regulation of 1979 to terminate his service. But in the
instant case the same has not been complied with and as such non- compliance of
the mandatory provision of law the respondents acted illegally in accepting the
resignation letter—Bangladesh Biman Corporation Employees (Service) Regulation,
1979, Regulation —53(1)
Md.
Jashimuddin Vs. Bangladesh Biman Corporation & ors, 20 BLD (HCD) 230.
Notice
The
purpose of a statutory notice is to given an opportunity to show cause and to
remedy or amend the wrong done before the proposed action to be taken. It is a
requirement of a fair play. Such notice must be specific, clear and precise on
the breach or violation etc. committed. Otherwise, the very purpose of the
notice would be defeated.
A..Rouf
Chowdhury Vs. Bangladesh and others, 20 BLD (HCD) 537.
Ref:
Munnich Vs. Godstone. RDC, [1966] 1 WLR 427 at P.435—relied.
Notice
Since
the execution case was filed within three months from the date of passing the
decree issuance of notices upon the judgment- debtor was illegal and without
jurisdiction— Code of Civil Procedure, 1908 (V of 1908), Order XXI Rule 22.
Managing
Director, Rupali Bank Vs Haji Jahan Ara Begum and others, 21 BLD (AD) 137.
Notice
Notice
is a constitutional protection which cannot be denied to anyone who is serving
in a civil post of the Republic— Constitution of Bangladesh, 1972,Article—
135(2)
Director
General of Prisons of Bangladesh Vs. Md Nasim Uddin, 21 BLD (AD) 39.
Notice
The
service of notice under section 152 of the Pourashava Ordinance as a condition
precedent for institution of a suit—the provision of notice is mandatory, and
not directory—Paurasava Ordinance 1977, Section—152.
Md. Nurul
Islam & other v. Ms. Sheikh Enterprise and others, 21 BLD (HCD) 565.
Notice—Determination
of Tenancy
A
notice served upon a tenant with more than 30 days as contemplated by the
agreement between the parties does not prejudice the petitioner or suffer from
illegality or infirmity in the service of notice determining the tenancy—Transfer
of Property Act, 1882 (IV of 1882) Section—106.
Santosh
Kumar Das v. Hajee Badiur Rahman, 22 BLD (AD) 30.
Notice
The
action challenged cannot be considered as unlawful because there was no notice
to individual. manufacturers. The Director General of the Environment
Directorate has power to take immediate action when there is danger of causing
damage to public life— Bangladesh Environment Conservation Act 1995 (1 of
1995), Section—4
K M Asadul
Ban v. Bangladesh and others, 22 BLD (HCD) 129.
OATH
Oath of
Chairman
Where
a person being in jail custody serving out a sentence of imprisonment for life
under sections 302/109 of the Penal Code is elected Chairman of a Union
Parishad but on publication of the election result he could not take oath on
the fixed date, his prayer for extension of time for taking oath made to the
Deputy Commissioner on the ground of pendency of his appeal is a good cause
shown within the meaning of Section 13(b) of the Ordinance and Rule 2(2) of the
Union Parishad Rules, 1983.
When
disqualification incurred by the petitioner under section 7(d) of the Local
Government (Union Parishads) Ordinance, 1983 is removed it shall be deemed that
he never incurred it, in view of the order of acquittal passed in his appeal.
The
Deputy Commissioner is empowered under Rule 2(2) of the Union Parishad Rules,
1983 to administer the oath of office of Chairman on a subsequent date if the
cause shown for extension of time be just and proper—Local Government (Union
Parishads) Ordinance, 1983 (LI of 1983), Sections—13 and 7(d), Union Parishad
Rules, 1983, Rule—2(2)
Md. S.M.
Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190.
Oath of
office of Judges
The
oath of office of the Judges of the Supreme Court requires that they will
preserve, protect and defend the Constitution and the laws of Bangladesh. These
are not mere ornamental empty words. These glorifying words of oath eulogize
the supremacy of the judiciary—Constitution of Bangladesh. 1972, Article—95
Dr.
Mohiuddin Farooque, Secretary General, Bangladesh Environmental Lawyers
Association (BELA) v. Bangladesh and others, 22 BLD (HCD) 534.
Oath of
Speaker
If
the outgoing speaker is re-elected he shall make and subscribe oath first
before he administers oath to the members— Constitution of Bangladesh, 1972,
Rule 5(3)
Md. Fazlur
Rahman v Md. Abdul Hamid, Advocate & ors, 22 BLD (HCD) 631.
OBLIGATION
Statutory
obligation
Respondent
No.1-petitioner and the other respondents have purportedly acted under a
statute and have discharged a statutory obligation and therefore the impugned
notices are challengeable in the writ jurisdiction— Constitution of Bangladesh,
1972. Article— 102
Government
of Bangladesh Vs. M/s. East West Property Development Private Ltd. & ors,
19 BLD (AD) 300.
Obligation
to International Law
Article
25(1) of the Constitution casts an obligation upon the State to have respect
for International Law and the principles enunciated in the United Nations
Charter and the WHO resolution.
Professor
Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
OBSERVATION
Observation
Government
to contest Suits affecting public health and life
The
Government and the Collector of Customs, who are defendants in the suit, have
been directed to contest the suit by taking all necessary steps for production
of evidence and all relevant materials before the Court for complete and
effectual adjudication of the matters in issue:
Dr.
Mohiuddin Farooque Vs. Bangladesh and others, 16 BLD (HCD) 490.
Observation
The
Court expected more circumspection, understanding, discretion and judgment on
the part of the Prime Minister because of the high office she holds in making
off-hand remarks in respect of constitutional functionaries which have been
alleged to be contumacious.
An
application of Mr. Habibul Islam Bhuiyan, President, Supreme Court Bar
Association, 19 BLD (AD) 93.
Observation
It
was absolutely unnecessary for the High Court Division to comment on the
petitioners title to and possession of 1.24 acres of land and generally on
47.75 acres of land in a manner favourable to the writ petitioner. Those
finding of the High Court Division will not be taken into account as a finding
of fact or law either by the trial Court or by any other court in any future
litigation regarding the title to 47.75 acres of land.
Government
of Bangladesh Vs. M/s. East West Property Development Private Ltd. & ors,
19 BLD (AD) 300.
Observation
The
Court is competent to make observation with regard to defendant’s
claim/documents also while dismissing the case of the plaintiff. Merely because
some uncomfortable observations are there against the defendant is no ground
for expunging the same.
Md. Sirajul
Hoq Vs. Md. Pear Ali and others, 19 BLD(AD) 142
Observation
It
has been observed by this Division that while the judgment of the author-Judge
was sub-judice under appeal and the appeal was being heard in this Division he
ought not have published any opinion on a sub-judice matter before this
Division. In that judgment this Division expressed in clear terms that the
learned Judge will desist from committing such an act in future which is not in
keeping with judicial propriety.
Shamsuddin
Ahmed Vs Mr. Justice Mohammad Gholam Rabbani & others, 20 BLD(AD) 89
Ref:
4BLC(AD) 14—Cited.
Observations
Observations
or directions of the Appellate Division are binding on all subordinate Courts
and Tribunals. The subordinate Courts or Tribunals are required to faithfully
comply with the directions and observations of the Superior Courts.
Syed A.
Jalil Vs. Mahbub Alam (Babul) and others, 17 BLD (HCD) 27.
Observations
Observations
or comments in interlocutory matters
It
is well-settled that observations and comments wade in interlocutory matters by
the higher court are not binding on the trial Court at the trial itself. The
trial Court is required not to take into account any observation or comment
made in an interlocutory matter in the higher Court, except observing any
direction that may be contained therein.
Mr. Md.
Delwar Hossain Khan Vs. Dhaka Club Limited and another, 16 BLD (AD) 20.
Observation
Observation
in an injunction proceeding will have no bearing in the disposal of the main
suit on merit.
Mrs. Shahanaz
Chowdhury Vs Mr. Elthem B Kabir & ors., 21 BLD (AD) 57.
Observation
It
is not proper to interfere with an interlocutory matter when it is pending
before the High Court Division it’s for consideration.
Bangladesh
and others Vs Morshed Apparels Pvt. Ltd., 21 BLD (AD) 57.
OFFICE OF
PROFIT
Office of
profit
The
provisions of Articles 66(2A) and 99 (1) of the Constitution make it clear that
the office of the President, Prime Minister, Minister, Minister of State or
Deputy Minister does not fall in the category of office of profit in the
service of the Republic—Constitution of Bangladesh, 1972, Article—66(2A) and
99(1).
Abu Bakar
Siddique Vs. Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
Office of
profit
Office of
President
The
office of the President of Bangladesh is an office of profit but it is not an
office of profit in the service of the Republic. The former Chief Justice of
Bangladesh is not, therefore, debarred from being elected as the President of
Bangladesh and holding the office of the President under Article 99(1) of the
Constitution—Constitution of Bangladesh, 1972, Article—99(1).
Abu Bakar
Siddique Vs. Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
ONUS OF
PROOF
Onus of
Proof
In
this case the application for preemption was filed after 7 years of the
disputed transfer and under such circumstances a heavy burden lay on the
pre-emptor to discharge the onus of proof that he filed the case within the 4
months of the date of his knowledge.
Abdul Mazid
Howlader and another Vs. Lahajuddin Howlader and others, 16 BLD (AD) 197.
Onus of
proof—Disputed Kabalas
Plaintiff
never intended to sell the property nor she received any consideration money
and that she acted in full faith in her Pir and that mere signatures of her
husband on the papers produced by defendant No. 2 cannot be said to be
signature on the sale deeds.
By
judicial pronouncement of the superior courts of this sub-continent and the
Privy Council a special development of law, for the reason of social usages
prevailing in this subcontinent have evolved driving its source from the
general rules of English Common Law to protect persons whose disabilities to
fully understand the nature and effect of transfer of their property make them
dependent upon or subject them to the influence of others even in absence of
deception or coercion where they transfer their property to their own
disadvantage.
In
the instant case the plaintiff, who is not a well educated woman to understand
fully the effect of her signatures on the papers and blank stamp as referred to
above the principles of law as stated above can also be taken in aid to hold
that the plaintiff had no intention to sell the property by the disputed kablas
executed and registered by her obtained by deceit by defendant No. 1.
Shah Sufi
Taj Islam Vs Begum Rokeya Chowdhury & anr., 20 BLD (AD) 242.
Ref:
52 l.A. 342—relied
OPINION
Opinion
In
view of the existence of the report and recommendation it cannot be said that
there was no. material before the respondent No. 1 to form the opinion
concerning the appellant or that the said opinion was merely fanciful. So the
requirement of formation of an opinion by the Bangladesh Bank has been made
before directing a Director, Chairman or Chief Executive of a banking company
to refrain from performing functions of his office during the pendency of the
enquiry proceedings against him for his removal from office under section 46 of
the Act. Such opinion must be formed on the basis of relevant materials on
record and not fancifully without any such material nor on the basis of
irrelevant materials—Bank Companies Act, 1991(XIV of 1991), Section—46(2).
Abdur Rahim
Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.
Opinion
A
reasonable opinion is formed by a reasonable person when he finds something
relevant in existence in the objective world concerning any question or issue.
If a person without the existence of any such relevant objective phenomenon
fancies something and then forms an opinion concerning any question or issue
such opinion is neither a reasonable opinion nor a reasonable person holds such
an opinion. The “opinion’ of respondent No.1 concerning the appellant is based
on the inspection report and the report and recommendation of the Standing
Committee. So it cannot be said that the “opinion’, held by the respondent No.
1 concerning the appellant is not a reasonable opinion of a reasonable person.
Abdur Rahim
Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.
Ref:
Dr.Nurul Islam v. Bangladesh. 1981 BLD (AD)140: 33DLR(AD)20 1—Cited.
Opinion
Opinions of
Jurists on Hidnath
The
Jurists of the Shia and Sunni Schools have fixed different age of the minor at
which a mother loses her right of Hidnath. The opinions of the Jurists being
their personal views based on the prevailing social norms and conditions, these
have no binding force in law.
Romena Afrin
Vs. Fakir Ashrafuddin Ahmed and others, 16 BLD (HCD) 487.
ORAL GIFT
Oral Gift
—Essentials
A
declaration of gift by the donor, the acceptance of the gift by the donee and
the delivery of possession of the subject matter of the gift to the donee are
the essentials of a valid gift under the Muslim Law. A person claiming an oral
gift is required to prove that such a gift was actually made after observing
the essential legal formalities.
Hajee Daru
Miah Vs. Sonaban and others, 15 BLD (HCD) 378.
Ref:
Abdul Matin Chowdhury Vs. Chapala Rani Sen and others, 37 DLR (AD)205; Nasib
All Vs. Wazed Ali, 100 I.C. 206 AIR 1927 (Cal) 197; Haque Brothers and others
Vs. Shamsul Haque and others: 39 DLR 290- Cited.
Oral gift
Validity
of an oral gift under the Muslim Law rests on the declaration of the gift by
the donor and acceptance of the same by the donee followed by delivery of
possession. In the instant case the Court of Settlement rightly disbelieved the
story of the oral gift and delivery of possession following the alleged gift as
the appellants failed to prove that they exercised any act of possession in the
disputed property or realised any rent from the tenant therein although the
Government has been realizing rent from the tenant since 1972 treating the
property as an abandoned one.
Scheherzade
Alim and another Vs. The Secretary, Ministry of Public Works and Urban
Development and another, 16BLD (AD) 93.
Ref:
Haji Aklema khatun Vs. Shah Alam, 33 DLR 62; Gani MiaVs.Majid Au, 39 C.W.N.
882; Inre Mrs. Kohinoor Banu, 1 BLD 155; Jabed Ali Vs Abu Sheikh, 3 BLD (AD) 1;
Government of Bangladesh Vs.M/S. Ispahani, 40 DLR (AD) 116; Begum Lutfunnessa
Vs. Bangladesh, 42 DLR (AD)86; Abdul Khaleque Vs. The Court of Settlement, 44
DLR 273; Bangladesh Vs. Dhaka Steel Works Ltd. 45 DLR (AD) 69—Cited.
ORDER OF
REGISTRAR
The
Order of the Registrar in his administrative capacity is also passed as an
order of the Supreme Court. It is very much unfortunate that the law enforcing
agencies did not respond in time to the call of the Registrar of the Supreme
Court to clear up the slum dwellers assembled in the Supreme Court premises.
The
authority would in future shall not fail in their constitutional obligations to
carrying out the order of the Court both judicial and administrative.
Ain-O-Salish
Kendra (ASK) & ors. Vs. Government of Bangladesh & ors., 19 BLD (HCD)
488.