Constitution of Bangladesh, 1972
Article- 102
Proceeding in the
Writ Jurisdiction
Section-
141 of the Code of Civil Procedure does not interns apply to proceedings in
writ in the High Court Division under Article-102 of the Constitution. But the
court in its desertion can apply the principles as distinguished from the
technical provisions of the Code of Civil Procedure
to meet the exigencies of the situation
in appropriate cases on the ground of justice equity and good conscience in
what situations the principles of the Code of Civil Procedure will be applied
and in what extent may perhaps be left to the wise discretion of the court
itself.
Moni Begum &
Ors. Vs. RAJUK & Ors. 2BLT (AD)-71
Article- 102
Executive
committee of the Matsajibi Samabaya Samity being dissolved under section 18(3)
and a 5-member Ad-hoc committee being appointed under section 18 (4) of the
Co-operative Societies Ordinance, 1984, the writ petitioner appellant preferred
an appea4 although no appeal lay against such order, before the District
Registrar, who rejected the same by an order dated 23.10.93 against which the
appellant moved the writ petition before the High Court Division which was also
summarily rejected on the ground that the appellant did not preferred an appeal
before the District Judge within 60 days, It is procedurally absurd to ask the
appellant to go to a higher. appellate forum to obtain a verdict on the
jurisdictional error of the first appellate authority the High Court Division
failed to exercise its jurisdiction under Article 102 of the Constitution is
not disposing of the appellants writ petition on merit and in requiring him to
prefer a further appeal to the District Judge when the first appeal itself was
incompetent in the eye of law.
Noni Gopal Barman
Vs. Bangladesh. & Ors. 2BLT (AD)-36
Article- 102
Writ
petitioner headmaster, being ex-official Member-Secretary of the Committee, whether
it is formed under Regulation 4 (a) or under Regulation 20(1), and the
petitioner being a paid official, the writ petition itself is Misconceived.
Chairman Civil
Aviation Authority Vs. K. A. Rouf & Ors. 2BLT (AD)-116
Article- 102 Read with Martial
Law Order No. 9 of Martial Law Regulation, 1982
(a)
Dismissal from service petitioner’s representation dated 28-11-84 to Respondent
No.2 Secretary Ministry of Law and Justice—Review Petition to the President and
C.M.L.A. for cancellation of impugned order dated 15-11 -84—Martial Law
withdrawn on 11-11-1986.
Hare Krishna Das Vs
President’s Secretariat and Others 1BLT (HCD)-13
(b)
Proclamation of withdrawal of Martial Law dated 11-11-1977 Para-5 removal of
difficulty in giving effect to provision of proclamation order of dismissal not
final and conclusive-president competent to create a forum for review
Respondent No. 1 directed to place all papers relation to review petition to
the President for Review-Rule made absolute.
Hare Krishna Das Vs
President’s Secretariat and Others 1BLT(HCD)-13
(c)
Interpretation of statute—Proclamation of Martial
Law Regulation I 982-Para-5 enabling section-creation of a forum-duty cast on
Respondent No. I to do needful relation to review.
The
difficulty that has arisen as a result of withdrawal of Martial Law is not
creating any forum for consideration of the review petition could only be
removed by creation of a forum for consideration of such review petition.
And
invoking jurisdiction of the Administrative Tribunal set up under Article 117
of the Constitution does not arise. The order to be challenged must be a
conclusive order. So long as the review petition is not disposed of we cannot
say that the order of dismissal passed by the authority of the
President is a final order. Therefore the plea that there is an alternative
remedy by way of filing an application before the Administrative Tribunal and
the writ petition is not maintainable does not hold good’.
Hare Krishna Das Vs
President’s Secretariat and Others 1BLT (HCD)-13
“It is
admitted by the petitioner as well as by the respondents that the President was
competent to create forum for review under para 5 of the Proclamation of
Martial Law as there is no forum available to review the application of the
petitioner. Since the President has been provided with the enabling provision
to create a forum under para 5 of the Martial Law Proclamation, we hold that
respondent No.1, the Principal Secretary, President Secretariat, the old
Sangsad Bhaban, Airport Road, Dhaka be directed to place the papers in
connection with the review petition of the petitioner to the President for
disposal of the said application in terms of rule by creation an appropriate
forum for the said purpose.”
Hare Krishna Das Vs
President’s Secretariat and Others 1BLT (HCD)-13
Article- 102
All
actions or decisions, administrative or quasi-judicial are amenable to Judicial
revenue under Art. 102 of the Constitution. The remedy of judicial review under
Art. 102 of the Constitution is not governed by any law of limitation. This is
an extraordinary remedy and should be sought with all possible expedition. The
court is to balance the interests of the party or parties affected by a
decision, and public interest. In considering the question of delay the court
will consider whether the relief granted would be likely to cause substantial
hardship or prejudice the rights of any other person. In the instant case no
one will be prejudiced. The government was giving assurance to the respondent
that his citizenship was under consideration and so he advisedly did not rush
to the court earlier. The show cause notice dated 23 March 1992 compelled him
to come to the court. So his writ petition was maintainable.
Bangladesh Vs. Prof.
Golam Azam & Ors. 3BLT (AD)-3
Article-102
Encashment
of Defence Savings certificates the Bank who acted as the agent on behalf of
the Government, in refusing to pay the amount against the defence saving
certificates merely on the ground that the petitioner was a guarantor in
respect of the liability of the company taking loan from the Bank is illegal
and without any lawful authority.
Mr. Abdus Salam Vs
Manager Agrani Bank & Org. 2BLT (HCD)-234
Article- 102
High
Court’s extraordinary jurisdiction under Article 102—The High Court Division
was not a court of appeal required to make determination of facts on its own.
It could interfere with the findings of a tribunal of fact, if it could be
shown that the tribunal had acted without jurisdiction on made any finding on
no evidence or without considering any material evidence/facts causing
prejudice to the complaining party or that it had acted malafide or in
violation of any principle of natural justice. In the absence of any of these
conditions the interference by the High Court Division will itself be an act of
without jurisdiction.
Govt. of Bangladesh
Vs. Md. Jalil & Ors 3BLT (AD)-193
Article- 102
Whether even after
the withdrawal of Martial Law and repeal of M. L.O.9 of 1982 the order of
retirement passed by the authority earlier could be reviewed.
By
inserting paragraph 1(A) of M.L.O. 9 of 1982 a right was created to aggrieved
party to file an application for review and on such filing a duty was cast upon
the authority to review the order passed earlier under paragraph I of M.L.O. 9
of 1982. The application for review was filed before the Martial Law was
withdrawn and the said application was found to have been pending as the
authority did not dispose of the matter earlier. Therefore the right accrued to
the petitioner with the filing of the application for review during the period
when the M.L.O. 9 of 1982 was in force is deemed to have been subsisting even
after the repeal of M.L.O. 9 of 1982.
S. M. Wadud Vs.
Principal Secretary & Ors. 3BLT (HCD)-90
Article-102
Respondent
No. 4 filed the Redemption Case on 25.6.1973 under the P.O No. 88 of 1972,
which was allowed by the respondent No. 1 on 15.6.1974—being aggrieved by the
said order the appellant filed Writ Petition No. 1074 of 1974, by order dated
29.8.90— ‘the Rule discharged as abated”—An order dated 10.5.1992 passed by the
respondent No. I in the aforesaid R.P Case directing him to handover possession
of the disputed land to respondent No. 4 by 20.5.92 on the ground that the writ
petition of the appellant had been dismissed—being aggrieved by the said order
the appellant again filed Writ Petition No 1950 of 1992—High Court Division
observed that the appellant had “admittedly” no right to invoke the
jurisdiction under Article 102 of the Constitution at the time of revocation
and withdrawal of Martial Law against the original order of redemption and as
such that right has not been revived or restored. The impugned order, it was
held, was not an independent order of eviction but towards implementation of
the earlier order which was the subject matter of the previously abated writ
petition and as such the impugned order cannot be
questioned on the ground of violability of the original order against which no
fresh writ petition lies. Upon such view of the matter the writ petition was
rejected summarily— Held It is clear that on and from 10.11.86 there was
nothing which prevented the appellant to move the High Court Division under
Article 102 against the original order of redemption. That he did not invoke
Article 102 of the Constitution until May 1992 was evidently because he was not
disputed in his possession of the disputed land till he received the impugned
order dated 10.5.92 which gave rise to a fresh cause of action. The High Court
Division, it must be said, fell into an error in taking the view that the appellant
had no existing right to invoke Article 102 against the order of redemption on
the date the Martial Law was withdrawn and as such allowed itself to pass an
erroneous decision in the matter— appeal allowed.
Anwaruddin Bepari
Vs. The Asst. Comm. (Land)& Ors. 4BLT (AD)-52
Article – 102
Not
maintainable—In the ensuing general election of members of Parliament
respondent No. 3 submitted nomination paper before the returning officer and on
scruting, Returning Officer accepted the nomination paper of respondent No. 3,
being aggrieved there by the petitioner filed writ petition on the ground that
respondent No. 3 has been convicted by various special tribunals for Misconduct
under section 5 (2) of Act 11 of 1947. Appeals against the said judgments and
orders are still pending and the respondent No. 3 has been serving the
sentences.
Held :
As no question of coram non judice or malice in law raised in the writ
petition, on the ground that the writ petition was not
maintainable.
A. K M. M. Islam Vs.
Bangladesh Election Comm. & Ors. 4BLT(AD)-159
Article-102
Parliamentary
election process—As per election schedule by the election Commission, the
appellant along with respondent Nos. 1-3 filed nomination papers to the
Returning Officer—at the time of scruting respondent No. 1 raised an objection
before the returning officer alleging that the appellant did not then attain 25
years of his age and as such he was not qualified for being a candidate in that
election. The returning officer rejected the objection and accepted the
appellants nomination papers as a valid one—High Court Division
declaring that the acceptance of his nomination paper by the returning officer
was without lawful authority and is of no legal effect as he was less than 25
years of age on the date of submission of the nomination paper—Held: In the
present case, acceptance of nomination paper, the returning officer was not
coram non judice and there is no malice in law, expressly pleaded and
established, so as to attract the jurisdiction of the High Court Division under
Article 102 of the Constitution. The High Court Division acted without
jurisdiction in interfering with a parliamentary election process— relied on 41 DLR
(AD) 68.
Md. Mahmudul Haque
Vs. Md. Hedayetullah & Ors. 4BLT (AD)-184
Artlcle-102
As a
matter of fact the pentionary benefits which the petitioner claims relates to
the period which is referable to his active service in Bangladesh Army, in writ
petition is not maintainable under Article 102 of the Constitution.
S. M. Reza Vs.
Ministry of Defence & Ors. 5BLT (AD)-202
Article-102
In the
instant case the appellant has made out a case that he had no opportunity of
availing of the alternative remedy in section 30 of the Special Powers Act. If
and when such a case is made out it will be improper, inequitable and indeed a
denial of justice if the door is shut upon the face of the accused person. The
High Court Division was wrong in holding that the instant writ petition was not
maintainable. The appellant had not reasonable opportunity to avail of the
alternative remedy. In such circumstances, his writ petition was fully
maintainable.
Neser Ahmed Vs Govt
of Bangladesh 5BLT (AD)-231
Article- 102
Writ of
certiorari—The jurisdiction in the nature of certiorari is not so wide or large
as enable the High Court Division to convert itself into a court of appeal
In the
present case the learned Judges of the High Court Division while considering
the Judgment of the Court of Settlement sat over the judgment as a court of
appeal and reappraised the evidence and materials on record. In exercising the
jurisdiction in certiorari the learned Judges sat over the judgment of the
tribunal as a court of appeal and reversed the findings of fact of the Court of
Settlement. The learned Judges on consideration of the materials and evidences
on record took a different view that Md. Nasim was the son of original allottee
Yahiya as the original title deed, and original receipts showing payment of
rent, taxes etc. were produced from the custody of Respondent No. I. The learned
Judges relied very much on this circumstantial evidence. The learned Judges
also found that respondent No.1 having failed to give the exact date of death
does not ipso facto disprove the assertion that Yahiya considered the
materials-on record is in the fact the manner in which a court of appeal
disposes of an appeal. The learned Judges of the High Court Division exceeded
their jurisdiction while exercising their power under certiorari to interfere
with the Judgment of an inferior tribunal.
Govt. of Bangladesh
Vs. Asraf Ali & Anr. 5BLT (AD)-261
Article-102
Writ of
Mandamus—for a direction to issue certified invoice (BDC) to the petitioner on
the basis of invoice—Held: It would thus appear from the circular that the
certification of the invoice by the Bangladesh Customs is necessary. The
question before us is whether in the present case a direction is necessary from
this court to respondent No. 3 to issue a certified invoice (BDC) as prayed for
by the petitioner who is the exporter. Respondent No. 3 has stated that there
is nothing in the Customs Act, 1969 which requires to issue such a certified
invoice but in view of the direction of the Bangladesh Bank (AnnexureY) it
appears to us that such a certificate is necessary but there is nothing in the
circular to suggest that the certification of the invoice has to be obtained by
the exporter. The respondent No. 3 has categorically stated that no such
Invoice Annexure-O was placed before him. The invoice like other import
documents is to be submitted by the importer, and the importer not having
submitted this document with the Bill of Entry the question of certifying the
original invoice (Annexure-C) does not arise. We are therefore unwilling to
pass any order directing the respondent No. 3 to certifying the original
invoice (Annexure-C) claimed to have been submitted by the petitioner.
PKS Ltd Vs.
Chairman. NBR & Ors. 5BLT (HCD)-81
Article- 102
Petitioner, former Chief of Army Staff
challenging four notifications, published in
the Bangladesh Gazette—Maintainability.
All
military personnel especially the post of Chief of Army Staff which is a
position of trust, hold their posts during the pleasure of the President—We are
of the opinion that the High Court Division rightly dismissed the writ petition
summarily because it could not be established that the doctrine of the pleasure
of the President is inhabited by an allegation of malafide in the case of
military personnel. The remedy, as always is through representations and
memorandum to be submitted to the President (and not to the Prime Minister) and
the petitioner has no other remedy either under Article 102 of the Constitution
or in the civil Court.
Lt Gen. Abu. Saleh
Md. Nasim Vs. Bangladesh 6BLT (AD)-271
Article- 102
Maintainability
Suit was
filed by the petitioner for a decree declaring that the petitioner is the sole
16 annas owner and possessor of the suit property and it is not an abandoned
property in the year 1980. Government appeared in that suit and having
knowledge about the proceeding even then it was listed in the abandoned list,
long after the institution of the suit—it has been made in clear violation of
the proviso(b) of section 5 of the Abandoned Building (supplementary
provisions) Ordinance, 1985—writ petition is maintainable even without going to
the court of settlement.
Dr. Shamim Akhtar
Vs. Ministry of Public Works & Ors. 6BLT (HCD)-177
Article- 102
Jurisdiction—any
act or thing done or any trial taken place even under Martial Law Proclamation,
Regulation or Order, can be challenged under Article 102 of the Constitution,
if it is done or made without jurisdiction, corum non judice or malafide.
Shahariar Rashid
Khan Vs. Bangladesh & Ors. 5BLT (HCD)-38
Article-102
Not
maintainable—In fact the petitioners came to the Writ Court for a direction upon
the respondents to finalize the agreement only on the basis of the
recommendation of the Cabinet Committee as approved by the Prime Minister—Held:
The recommendation of a Cabinet Committee cannot be enforced through a writ for
the simple reason that it is not law.
Professor Abdur
Rahim Khan & Ors Vs. Ministry of Industries & Ors 7BLT (AD)-313
Article-102
We find
that the petitioner company challenged the registration of respondent No.
2-union dated 9-10-97. The petitioner company did not challenge the refusal of
respondent No. 1 to file an application before the Labour Court for permission
to cancel the registration. In that view of the matter we do not think that the
writ petition was maintainable because cancellation of registration is always
subject to obtaining of permission from the Labour Court and a declaration that
the registration itself was illegal amounts to cancellation of registration
through a backdoor. [Para-6]
Al-Muquaddem Steel
Mills Ltd. Vs. The Registrar of Trade Unions, Dhaka & Ors. 7BLT(AD)-307
Article- 102
Due to the fault of
the lawyer, could. not prefer the appeal within 30 days provided under Artha
Rin Adalat Act
The
jurisdiction of the High Court Division under Article 102 of the Constitution
is an extraordinary jurisdiction which can only be exercised in proper cases if
the High Court Division is satisfied that no other efficacious remedy is
provided by law. This extraordinary jurisdiction is not available as an
alternative remedy provided under Section 7 of the Artha Rin Adalat Ain, 1990
which the petitioner did not avail of.
BCIC Vs. B.C. C
International Overseas Ltd. & Ors. 7BLT (AD)-31
Article- 102
Jurisdiction under
Article 102 of the Constitution
The view
of the High Court Division that the Writ court is not competent to interfere
with an administrative order is totally wrong. No action detrimental to the
vested right of an individual or corporate body can be taken except in
accordance with law.
Brahmanbaria
Pourashava Vs. Ministry of Land & Ors 7BLT (AD)-95
Article-102
Writ
Jurisdiction—Writ petition arises out of a contract—Held: Basically, the
principle is that a writ petition cannot be founded merely on contract, but
when a contract is concluded the contractor has a legitimate expectation that
he will be dealt with fairly. The petitioner could have asked the respondent to
supply the water tanks and generator according to specification and could have
given him an opportunity to complete the work according to specification,
taking the anomaly during re-examination to be correct; but to cancel the
contralto unilaterally without regard to subsequent developments is a high feat
of arbitrariness which rightly attracts the writ jurisdiction.
Dhaka Water Supply
& Sewerage Authority Vs. Superior udders & Engineers Ltd. 7BLT(AD)-142
Article-102
In view
of the facts and circumstances of the case, the lawful order the learned Judges
of the High Court Division could pass under law was to direct the appellants either
to derequisition the case property under Section 8B of the Act or to finally
acquire the same by publishing in the Bangladesh Gazette notification under
Section 5(7) of the 3aid Act. That is all the learned Judges could have done in
exercise of their jurisdiction but then the learned Judges of the High Court
Division wrongly exceeded their jurisdiction in assuming the executive
functions of the officials directing release of the case property in favour of
the writ petitioner-respondents.
Govt. of Bangladesh
& Ors. Vs. Abdul Wahab Mia.& Ors. 7BLT(AD)-169
Article-102
The writ
jurisdiction was quite in appropriate to assail the order of cancellation of
lease which was done under the specific terms of the lease agreement itself.
S. Rafique Chowdhury
Vs. Bangladesh & Ors. 7BLT (AD)-182
Article- 102
Locus standi—The petitioner filed the writ petition on his
own behalf and on behalf of the members of public in general styling himself as
a person interested to espouse the cause of the public—the petitioner like
other boatmen who are owners of boats has acquired a customary right from time
immemorial in the nowka ghat in question—Held: The writ petition was not
maintainable.
Md. Nasir Uddin Vs.
Govt. of Bangladesh & Ors.7BLT (AD)-302
Article- 102
Jurisdiction—Disputes which arise from a case of violation
of contract is not cognizable under writ jurisdiction.
BRTC Vs Noor Uddin
& Ors. 7BLT (AD)-291
Article-102
Whether the
petitioner having had taken oath on the basis of declaration of the result
under Rule-39 of the Union Parishad (Election) Rules, 1983, the impugned letter
that the oath was administered through Mistake on the basis of unofficial
declaration of the result of election has been issued without any lawful
authority
The
Gazette Notification was published in January 8, 1998. On the other hand, the
oath was administered in February 5, 1998. Thereafter, it is very difficult for
us to hold I that the oath administered to the petitioner after publication of
the name in the Gazette Notification of respondent No. 8 Most. Aklima Bibi was
on any legal basis and by the impugned letter and the publication of the
Gazette Notification any of her legal or constitutional rights has been
infringed. Thus, in absence of such right the petition is also not
maintainable.
Most Nasima Khatoon
Vs. Election Commissioner& Ors. 7BLT (HCD)315
Article-102
Section
18 of the Pourashava Ordinance (XXVI of 1977)—Because of contingency an officer
of over 100 years old Municipality or a Government Servant was acting as an
Administrator of the said Municipality when Section 18 of the Pourashava
Ordinance, 1977 only applies to a newly declared Municipality j and in the
absence of satisfaction that a contingency has arisen requiring the respondent
No. 3, who filed nomination paper on 1-9-96 for contesting in the election of
the said Municipality, to replace an officer of the said Municipality to
Administrator of the said Municipality, the appointment of respondent No. 3
including the Committee is declared to have been issued without lawful
authority and such appointment is an express will to appoint them under Section
18 of the said Ordinance and not merely made inadvertently or Misquoting of a
wrong source of power.
Taimur Alam Khondker
& Ors Vs. Govt. of Bangladesh & Ors 7BLT (HCD)-346
Article-102
Forum for a redress of the adverse remarks.
The
petitioner seems to have a genuine grievance because of the adverse remarks
made against him, which is likely to affect him prejudicially. He appeared as a
witness for a party and his evidence can be legitimately made a subject of
comment by the authority hearing the matter but to say further that he was an
undesirable person for the purpose or management of the estate/ mosque (which
is found to have been established by his grandfather) was perhaps going too
far. He was not told beforehand that he was a bad person and so cannot be
included in the managing Committee. At the same time, we have no manner of
doubt that the writ jurisdiction was not the appropriate forum for a redress of
his grievance. He should have moved the Administrator of Waqfs for expunging
the uncharitable remarks made against him instead of rushing in with a writ
petition which was not well conceived. The petitioner may still approach the
Administrator of Waqfs if he so likes to consider his case for expunging the
remarks which are claimed to be adverse and not necessary for the purpose of
disposal of the proceeding in question.
Md. Ali Akbar Vs.
The Administrator of Waqfs & Ors 8BLT(AD)-31
Article-102
Item No.
72.04 of Section XV of the First Schedule to the Customs Act, 1969 —As is clear
from the facts of this case the order of adjudication contains not only an
interpretation of technical words used in the Customs Act but also a technical
appreciation of the nature imported goods. On such matters the High Court
Division is not the proper forum for a final adjudication at the first
instance. The National Board of Revenue having both the technical competence
and technical assistance available on hand was in a better position to
adjudicate upon the Adjudication Order and the subsequent order. If thereafter
any point of law was left to be decided further either side could have then
invoked the writ jurisdiction.
Govt. of Bangladesh
Vs. Section Steel Industries Ltd. 8BLT(AD)-34
Article- 102
In the
instant case, the writ petitioner is a Government servant. He has not
challenged the vires of any law. His grievance relates to the terms and
conditions of his service. The High Court Division is therefore correct in its
view that the writ petitions are no maintainable under Article 102 of the
Constitution.
Md. Shamsul Islam
Khan Vs. Ministry of Communications & Ors 8BLT (AD)-64
Article-102
Locus standi—being
added as a party in the writ petition.
Even
when a political party which obtained a protected symbol before the general
election held on the 12th June, 1996 decides not to take part in a by election,
the Returning Officer is still under a cautionary direction of the Election
Commission to scrutinize the written documents of a candidate if he presents
himself as a nominated candidate of a political party which took part in the
general election held on the 12th June, 1996, It is the case of the appellant
that it did not nominate the writ petitioner as its candidate for the by
election in question and therefore it has a sustained interest in its protected
symbol ‘Langal’. If the decision of the High Court Division in the impugned
judgment is to the effect that the symbol ‘Langal’ will be allotted to a person
who has not been nominated by the appellant as its candidate in the by-election
in question, than that political party, namely, the appellant, has every locus
standi to prefer this appeal and prosecute the same in order to safeguarded and
protect its claimed protected symbol.
Jatiya Party Vs.
Motassim Billah & Ors 8BLT (AD)-100
Article-102
Interference at an
intermediate stage in the election process.
We have
gone through the writ petition. We do not find that there is any allegation as
to coram non-judice or absence of jurisdiction or malice in law in the writ
petition. The grounds taken are that the order of rejection of the Returning
Officer dated 19.04.1999 is arbitrary, mala fide, without lawful authority and
for collateral purpose There is absolutely no factual martin justifying the
allegation of mala fide and there is no indication either as to for what collateral
purpose the impugned order was passed— writ petition is not maintainable.
Jatiya Party Vs.
Motassim Billah & Ors 8 BLT (AD)-100
Article- 102
Interpretation of
direction of the Election Commission.
Allocating
a protected symbol —The High Court Division has observed that it was not the
question before the Returning Officer as to which of the two factions is
entitled to the symbol ‘Langal” In its opinion the question before the
Returning Officer was whether after withdrawal of candidature by Mr. Abdul Hamid.
respondent No. 1, whatever faction of Jatiya Party he belonged to was entitled
to the symbol of ‘Langal’ This is again a Misdirected opinion of the High Court
Division. Both Mr. Abdul Hamid if he was in the race and respondent No. I were
required to produce their respective written documents before the Returning
Officer if both of them claimed the protected symbol ‘Langal’ If only one of
them remains in the race he too has the obligation to produce written document
before the Returning Officer to show that he is nominated by that political
party which obtained the protected symbol ‘Langal in the General Election held
on the 12th June, 1996. That is the burden of proof of any candidate does not
produce written documents to the Retuning Officer to satisfy him on this point
then the Returning Officer imperfectly entitled to refuse him to allocate the
protected symbol on the ground that the failed to produce his papers. It is a
contested mater before him. he will evaluate both sides written documents and come
to a decision according to his best judgment.
Jatiya Party Vs.
Motassim Billah & Ors 8BLT (AD)-100
Article-102
Premature—Respondent
No. 1 brought writ petition for a declaration that the writ petitioner was
entitled to be declared as a recognized private university as per provisions of
the Act—during the pendency of the writ petition the Grants Commission on 14
October 1997 informed the Secretary of the Ministry of Education that in view
of the fulfillment of the conditions by respondent No. 1 permission could be
accorded to the proposed university, namely, Dhaka International University on
condition that the respondent would withdraw the writ petition —the writ
petition in the circumstances must be considered as premature, the case of
action not having arisen.
Bangladesh &
Ors. Vs. Dhaka International University & Ors 8BLT (AD)-198
Article- 102
Jurisdiction—Admittedly the respondent was originally an
employee of the Telegraph and Telephone Department of the Government and after
the constitution of the Telegraph and Telephone Board under the Telegraph and Telephone
Board Ordinance 1975 he become an employee of the Board. He become a Senior
Accountant having been recruited by the Board and thus he lost his original
character of a Government servant. After the Ordinance of 1975 was repealed and
substituted by the Ordinance of 1979 there is no dispute that the employees of
the “Board” like the respondent were to be governed by Section 18(2)(f)(ii) of
the Ordinance of 1979—Held: The respondent became an employee of the Government
by reason of Section18(2)(f)(ii) of the Ordinance of 1979 and his service was
lent to be Board and therefore he squarely qualified to the person in the
service of the Republic so that it naturally followed that the writ petition
filed by him was not maintainable.
Chairman T&T
Board & Ors. Vs. Md. Shafiul Alam & Ors 8BT (AD)-225.
Article- 102
Order
the Election Commission—Held: We have already noticed that disturbance that
took place on the election day in the two election centers were brought to the
notice of the respective Presiding Officer by the chief election agent of the
appellant and on their refusal to accept the written complaint and to postpone
the election he made a written complaint to the Chief Election Commissioner on
the very same day. The allegations made by him in the said application and
subsequent application filed on the next day having been found correct by the
Deputy Election Commissioner after enquiry High Court Division was not
justified in declaring the order of the Election Commission to be without
lawful authority and of no legal effect. In the facts and circumstances of the
case it cannot be said that the order of the Election Commission was without
jurisdiction (coram nonjudice) or vitiated by malice in law. High Court
Division should not have interfered with the order of the Election Commission.
Noor Hossain Vs. Md.
Nazrul Islam & Ors. 8BLT (AD)-295
Article- 102
Whether
the petitioner suffered physical disability and became unable to attend his
duty or he defined the authority deliberately and willfully absented from duty
is a disputed question of fact, which cannot be decided under writ
jurisdiction. Moreover question payment of subsistence to the government
servant during suspension in our view relate to terms and conditions of service
with in jurisdiction of the Administrative Tribunal.
Sheikh Abdul Hakim
vs. LGRD & Ors 8BLT (HCD)-116
Article- 102
The
right to office one holds and the right to pay/salary one draws are vested
during the continuance of the employment. It any action affection 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.
Md. Amirul Islam
& Ors. Vs. T.N.O. & Ors 8 BLT (HCD)-204
Article- 102
Not-maintainable— although when the writ petitioner had made
his application before the Court of Settlement the said Court was not duly
constituted, it was so constituted and function when the writ petition was
made. The Court of Settlement is authorized under Section 7 of the Ordinance to
deal with the entire question of abandonment of the property and that is the
proper forum for complete relief of the writ petitioner. So it cannot be said
that the Court of Settlement did not offer an equally efficacious remedy. The plea
taken by the respondent depending on the decision in 42 DLR (AD) 86 and 51 DLR
(AD) 25 that the writ petitioner could invoke the writ jurisdiction without
having recourse to the Court of Settlement does not seem tenable because the
jurisdiction of the Court of Settlement in this particular case in including
the property in the list of abandoned properties cannot be said to be ex facie
void.
The writ
petitioner has given a history of the property and the manner in which he
alleges to have acquired the property including transactions like exchange,
partition etc. These are contentious matters. The High Court Division does not
appear to have dealt with them. It is well-settled that a writ bench will not
go into and resolve contentious matters in its summary procedure.
Bangladesh &
Ors. Vs. Habib Zamil 9 BLT (AD)-52
Article- 102
Writ of mandamus— in any view of the matter, the High Court
Division in its writ jurisdiction is not a court for the recovery of money and
has no jurisdiction to give a direction for payment of a particular amount of
money to the writ petitioner, unless the amount claimed is both an admitted
amount as well as a statutory payment.
Chairman, Bangladesh
Water Development Board & Anr. Vs. M/S Shamsul Haque & Co Ltd. &
Ors. 9 BLT (AD)-105
Article-102
Not
maintainable—alleged additional customs duties—Held: per
Latifur Rahman CJ: In the resent case the petitioner having released the
goods on payment of additional customs duties and sales tax ought to have asked
for refund under Section 33 of the Customs Act within six months. He having not
availed of this alternative efficacious remedy the writ petition is not
maintainable on this score as well.
Bangladesh &
Ors. Vs. Mizanur Rahman. 9BLT(AD)-166
Per Kazi Ebadul Haque, J : (agreeing) : In the instant case the writ
petitioner released the imported goods on payment of the assessed duty and he
neither preferred an appeal against the order of assessment under Section 193
of the Act nor filed any application for refund of the alleged excess duty
under Section 33 of the Act nor gave any explanation for non filing of any
appeal or application for refund. In the face of provisions for appeals under
Sections 193 and 196 of the Act and also provision for refund of any excess
duty under Section 33 of the Act within six months of such payment his writ
petition is not maintainable.
Bangladesh &
Ors. Vs. Mizanur Rahman. 9BLT (AD)-166
Article-102
When an
action impugned in the High Court Division in a writ jurisdiction is a malafide
one the high Court Division acting in exercise of its power under Article 102
of the Constitution has jurisdiction to entertain a writ petition.
Managing Director,
Biman Bangladesh Air Lines Vs. Hasina Akhter & Ors. 9BLT (AD)-149
Article-102
In the
instant case award was passed by the sole arbitrator on 21.05.1994 and the
award money was withdrawn by the present respondent on 02.06.1994 by giving an
undertaking (Ekrarnama) that the respondent would refund excess payment made to
him if mistake is detected in calculation in future. Thereafter the award was
made rule of the Court on 30.06.1994 and decree was signed and sealed on 03.08.1994.
Subsequent thereto, after payment of the award money General Manager
(Engineering Department) by his letter dated 01.08.1994 addressed to appellant
No. 2 clearly stated that as per clause 46 of the tender paper the Bank officer
at Khulna supplied rod and cement of Tk. 80,40,000.00 which was also wrongly
included in the award which the contractor is not entitled to get. In view of
this appellant No. 2 issues a memo dated 01.03.1995 (impugned in the writ
petition) to withhold payment of Tk. 28 lakhs and odd from the pending bills —Held: The High Court Division raised
the question of modification of the award and decree but the impugned memo
before the High Court Division was relating to suspension of the payment till
final adjudication of the matter. They learned Judges of the High Court
Division primarily made the Rule absolute only on this untenable ground that
the decree needs modification and amendment. We are afraid such view is not
tenable legally in the facts of the present case when the undertaking was given
at the time of receiving the award money soon after passing of the award. Further
disputed questions of calculations of claim and counterclaim cannot be decided
in writ jurisdiction.
Governor, Bangladesh
Bank & Ors. Vs. M/S Shah Islam Construction Ltd. 9BLT (AD)-179
Article- 102
Writ of
mandamus — The High Court Division, by the impugned judgment and order,
discharged the Rule Nisi holding that the action of Bangladesh Bank was neither
arbitrary nor malafide, that the purpose of filing the writ petition was to
thwart the impending bankruptcy proceeding and that a writ of mandamus did not
lie on the facts of the case —Held:
It appears that the petitioner had the habit of taking loans from different
banks and managing to obtain remission of interest. It had already got a
remission of interest amounting to Tk. 4.03 crores. We therefore find no reason
to interfere with the decision of the High Court Division.
Fazlur Rahman &
Co. (Pvt.) Ltd. Vs. Agrani Bank & Anr. 9BLT (AD)205
Article- 102
Writ of
certiorari—not maintainable —on the basis of F.I.R. dated 02.10.1996 Sessions
Case No. 319 of 1997 was initiated and the same was disposed of by the judgment
and order dated 08.11.1998 by the learned Sessions judge, Dhaka, and the
beneficiary of the writ application Lieutenant Colonel Mohiuddin Ahmed has been
found to be guilty of the offences charged for and was convicted and sentenced
to capital punishment and being aggrieved by the said judgment and order said
lieutenant Colonel Mohiuddin Ahmed preferred Criminal Appeal No. 2617 of 1998
in the high Court Division of the Supreme Court of Bangladesh, which was heard
along with other appeals and Death Reference Case no 30 of 1998 by a Division
Bench, which delivered a split judgment on 14. 12.2000. In the aforesaid split
decision Lieutenant Colonel Mohiuddin Ahmed was found to be not guilty by one of
their Lordships and accordingly his case has been referred to Third Judge of
the High Court Division for decision in accordance with the provisions of the
Criminal Procedure Code and same is now pending Held : We are of the view that
this Bench at the present stage. When the sessions Case No. 319 of 1997 arising
out of FIR dated 02.10.1996 has merged in Criminal Appeal No 2617 of 1998 filed
by Lt. Col. Mohiuddin Ahmed, now pending for disposal in another Bench of the
High Court Division, cannot issue writ of certiorari as prayed for.
Mrs. Shahida
Muhiuddin Vs. Bangladesh & Ors. 9BLT(HCD)-116
Article-102
Writ of
certiorari — it is settled principle that the writ of certiorari is issued
normally upon the inferior court or any tribunal inferior to the High Court
Division.
Mrs. Shahida
Muhiuddin Vs. Bangladesh & Ors. 9BLT(HCD)-116
Article- 102
Aggrieved
person—public interest litigation— petitioner is a member of the Supreme Court
has Association, alleged in the petition that by making unauthorized constructions
and setting up of illegal markets by the unauthorised users for their
commercial purposes there have been obstructions to the foot-paths and
pavements goers and passerby and thereby making the Dhaka City virtually unfit
for habitation, By unauthorized occupation of the foot-paths and pavements and
streets etc. obstructions are created in such a manner that the people cannot
pass through the foot-paths, pavements and the streets practically. In
comparison with the population the foot-paths and the pavements in Dhaka city
are small and insufficient. According to petitioner the respondents are not
taking any care, rather they are sleeping and neglecting to protect the same
and keeping free for use by the day to day passersby. The Dhaka city was once a
beautiful city in the east. But now it has been turned into a gloomy and glost
city because of blocking the footpaths and pavements in the aforesaid
unauthorized and illegal manner. This is why the petitioner being aggrieved has
made this application by himself. The environment also has become very
unhygienic and it is also adding to the pollution of the air—Held : The
government to protect the right of the people to move freely through the roads,
streets, foot paths and pavements of the city of Dhaka and other cities in
Bangladesh and in terms of the law should be implemented to protect the right
of the petitioner as well as of every pedestrian and the city dwellers who
should be allowed to enjoy their right as given by law.
Omar Sadat Vs.
Bangladesh & Ors. 9BLT(HCD)-124
Article- 102
Instant
case, we see that for the purpose of forming an opinion as to whether TTCL was
engaged in carrying out its banking business without required permission of
Bangladesh the enquiry was held by the competent person of Bangladesh Bank,
with prior show cause notices and after enquiry and before forming final
opinion and before making the impugned declaration a second notice vide
Annexure-G was served upon the ITCL informing it about the proposed action to
be taken by the Bangladesh Bank as such there is no lack or dearth of natural
justice in this case.
Islamic Trade & Commerce Ltd. Vs.
Bangladesh Bank & Ors. 9BLT(HD)-183
Article-102
Public
interest litigation as in the instant case fate of many innocent students are
involved as contended by the petitioners counsel In the instant case the others
are definite in number i.e. 49—Hence we are unable to accept the submissions of
the learned Advocate of the petitioner. However for securing ends of justice we
direct the Board to allow the petitioner and those others who have not yet
filled up the Forms of HSC Examination to be held in 2001 since they have
already changed their subjects as required by the National Curriculum and issue
necessary admit cards so that they can appear in the next HSC Examination,
2001.
Md. Masum Babor Hiro
Vs. Govt. of Bangladesh. 9BLT(HCD)-228
Article- 102
The
petitioner being a government servant and his transfer is one of the terms of
his service he must take shelter of law in Administrative Tribunal as the
Tribunal can strike down an order of violation of natural justice and for
infringement of fundamental rights. But for challenging vires of law one can
seek remedy under Article 102 of the constitution.
Nur Mohammad Vs.
Ministry of Education & Ors. 9BLT(HCD)-244
Article- 102
It
appears that by the impugned notification annexure-D the requiring body Rajuk
published the notification inviting application from the notification inviting
application from the decided to be acquired under L.A. Case No. 138/61-62, 91/57-58
and 26/59-60, for allotment of plot at Badda Re1iabilitation Zone but there is
no material on record to show that petitioners land measuring 4 katha in C. S.
Plot No. 1004 is within 721.76 acres of land decided to be acquired out of the
aforesaid three L.A. Case. On the other hand the Rajuk also has not submitted
any paper to show acquisition of the land and assessment of compensation if any
for the land in question-in view of the facts and circumstance stated in the
writ petition and papers annexed thereto we are of the opinion that the writ
petition was filed is incomplete in that it does not disclose material fact
that petitioner land was included in 721.76 acres of land decided to be
acquired and for non disclosure of complete material fact the writ petition is
not maintainable.
Most. Nurjahan
Akhter Vs. Bangladesh & Ors. 9BLT(HCD)-26O
Article-102
Maintainability— the case of the petitioners in brief is that
in response to the public notice published on behalf of the respondent No. 1
the petitioners submitted tenders to purchase the commercial premises at 25.
Bangabandhu Avenue, Ramna, Dhaka, (the case-property in short) with the
requisite earnest money and although their tender was highest still the
respondents could not finalize the matter due to litigations but even after
conclusion of the litigations, the respondents did neither complete the
transaction or hand over the physical possession of the case property in favour
of the petitioners in spite of compliance of all the terms by them. They made
repeated prayers for completion of the transaction but having failed in this
respect—Held It appears that the conduct of the officials of the respondent No.
I. in canceling the tender, after dilly dallying for long 6 (six) years, on a
preposterous reason for which they themselves are to be blamed, is most unfair,
as such the petitioners have got the constitutional right to maintain this
petition to challenge such an unreasonable and arbitrary order of the
Government.
Md. Nazrul Islam
& Ors. Vs. Bangladesh & Ors. 9BLT (HCD)-311
Article-102
Slum
dwellers should not be treated, for any reason, as slaves or chattels, rather
as equal human beings and they have got a right to be treated fairly and with
dignity.
Kalam and Ors Vs.
Bangladesh & Ors. 9BLT(HCD)-323
Article- 102
Maintainability—the petitioner is admittedly a responsive
bidder so far the technical bid is concerned and as per terms and conditions of
the tender document price bid of those bidder who have been found to be
responsive in the technical bid shall be opened that obviously amounts to an
agreement between the bidder and the purchaser, breach of the said terms as a
clear violation of the tender document in other wards the contract inasmuch as
terms and conditions of the tender documents are binding upon both sides. Thus
cause of action has already arisen for taking legal action.
Sumikin Bussan Corp.
Vs. Chittagong Port Authority & Ors. 9BLT (HCD)-363
Article-102
Maintainability— the petitioner is admittedly a responsive
bidder so far the technical bid is concerned and as per terms and conditions of
the tender document price bid of those bidders who have been found to be
responsive in the technical bid shall be opened that obviously amounts to an
agreement between the bidder and the purchaser, breach of the said terms as a
clear violation of the tender document in other wards the contract inasmuch as
terms and conditions of the tender document are binding upon both sides. Thus
cause of action has already arisen for taking legal action.
Dr. Md. Alamgir V.
BUET & Ors. 9BLT (HCD)-388
Article-102
Writ of
Mandamus—the respondents took objection to the High Court Division’s direction,
the Ministry, to produce the relevant file on the evaluation report and
questioned why the court should take on its shoulder the onus to find malafide,
According to them, burden should be on the shoulder of the petitioners, as they
were the ones who alleged malafide. The answer to this that, if the learned
Judges of the High Court Division thought it appropriate that an investigation
should be made in a writ petition, they were not barred from directing parties
to lead evidence. Such an investigation only assist the court in the
realization of the constitutional objectives. Such directions and orders passed
by the court are incidental or ancillary to it jurisdiction of enforcement of fundamental
rights. Power has been vested in the High Court Division to issue writ or order
to any party within its jurisdiction, under Article 102 of the Constitution.
But this power should be exercised cautiously and prudently.
ETV Ltd & Anr.
Vs. Govt of Bangladesh & Ors. 10 BLT (AD)-108
Article- 102
In the
instant case the High Court Division looked into the procedure adopted in
giving license to ETV and on doing so, it has exercised its jurisdiction under
Article 102 which on the facts of the case, in our view, is quite justifiable.
ETV Ltd & Anr.
Vs. Govt. of Bangladesh & Ors. 10BLT(AD)-108
Article-102
Locus
Standi—writ petitioners are not directly affected—Held: It must be remembered
here, that it is not possible to lay down in clear and precise terms what is
required to give a petitioner locus standi when public injury or public wrong
is involve Locus standi is not a case of jurisdiction of the court, but a case
of discretion of the court, which discretion has to be exercised on
consideration of facts and law point involved in each case, as already pointed
out in the case of Kazi Mukhlesur Rahman, As a matter of prudence and not a
rule of law, the court may confine its exercise of discretion, taking into
consideration the facts, the nature of the public wrong or public injury, the
extent, of its seriousness and the relied claimed. Therefore, the concern shown
by the bar, that giving locus standi to the petitioner will open the
floodgates, and the court will soon be overburdened by cases, does not hold
good. The discretion to open gates will always be with the court, which
discretion will only be exercised within the bounds mentioned above.
ETV Ltd & Anr.
Vs. Govt of Bangladesh & Ors. 10 BLT (AD)-108
Article-102
Waqf Administrator
has been passed complying the order the State Minister for Religious Affairs.
It
appears that the impugned order has been passed at the direction of the State
Minister for Religious Affairs and the Administrator of Waqf did not apply his
mind, independently in passing the order the impugned order have been passed
without lawful authority and of no legal effect.
Md. Naser Haider
Shamsu Vs. Government of Bangladesh & Ors. 10 BLT (HCD)-463
Article-102
Maintainability—We are of the view that in view of the
allegation as reported in the newspaper the petitioner as an Advocate of this
Court moved this Court and, as such, filing of the writ petition by the learned
Advocate cannot be considered as not maintainable.
Mohammad Hosain
Advocate Vs. Quamrul Islam Siddique & Ors. 10 BLT (HCD)-191
Article-102
Natural
Justice — Held : In view of the decision of the Appellate Division reported in
42 DLR (AD) 214 as well as of the decision of the writ petitioner No. 4897 of
1997 we find substance in the rule and accordingly we direct the respondents to
communicate the result of the review application of the petitioner which was
heard on 16.06.1992 pursuant to notice dated 03.06.1992 (Annexure-I) if the
petitioner’s application is still undisposed of the government may take step to
dispose of, the said application for review by creating an appropriate Review
forum within 3(three) months from the date of receipt of this order.
Shahidul Islam Vs.
Govt. of Bangladesh & Ors. 11 BLT (HCD)-152
Article- 102
No Locus
Standi—the petitioners have failed to disclose any sufficient interest in the
matter of appointment of the Judges in the Appellate Division. The petitioner
are persons having least knowledge about the appointment and also have no personal
interest and thus they are none but busybody. The fact remains that none of the
prominent members of the Bar have ever come forward to challenge the
appointment the newly appointed Judges of the Appellate Division which clearly
indicates that the citizens at large and the members of the Bar in particular
are not aggrieved. Admittedly two unknown and insignificant citizens have filed
this petition and thus it is apparent and obvious that they have seized the
opportunity and filed this petition to catch the public eye and to come to
prominence. The petition has been filed for their personal gain or private
profits coupled with political motivation and other oblique consideration. By
appointing the aforesaid judges in the Appellate Division no injury nor public
wrong has been committed by the Government, as the appointment does not offend
any provision of the constitution or any other law, In the instant case the
affected parties are not coming forward for no visible reason. We therefore
find and hold that the petitioners have no locus standi to file the instant
application.
S. N. Goswami &
Ors. Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-213
Arcitle-102
In the
instant case it is noted that the Minister and the officials under the Ministry
were under an implied duty to act in good faith and fairly listening to the
concerned parties, for that is a duty lying upon everyone who decides anything
before the impugned cancellation the petitioner or the Managing Committee of
the Madrasha should have been given a fair opportunity of being heard. It
appears from Annexure-F the impugned memo that no reason has been assigned for
cancellation of the monthly payment order list.
Md. Abdul Aziz Vs.
Govt. of Bangladesh & Ors. 11 BLT(HCD)-272
Article —102
A
show-cause notice does not violate any of the fundamental rights guaranteed to
citizen by the Constitution of the People’s Republic of Bangladesh and as such
no Writ Petition is maintain-able against a show cause notice.
Diplomat Garments
Pvt. Ltd. Vs. The Commissioner of Customs & ors. 11 BLT (HCD)-303
Article- 102
Pre-matured——Held:
As we find that no such demand of payment of money has yet been made by the
respondent from the petitioner. she is at liberty to give reply to the show-
cause notice on receipt of a copy of the investigation report. The respondents
are directed to supply a legible copy of the investigation report to the
petitioner forthwith.
Diplomat Garments
Pvt. Ltd. Vs. The Commissioner of Customs & ors 11 BLT (HCD)-303
Article —102
Import and marketing
of the foodstuff “Mini Pack Lychee Jelly”
The
report of the Public Health Laboratory of the Public Health Institute- In the
report dated 28.01.2003 it is stated that result of the tests of “Mini Pack
Lychee Jelly” being satisfactory and no adverse comment found in the internet,
taking of the jelly could be considered fit for human consumption subject to
the caution printed on its label. Then, it records the comment saying that in
view of the Pure Food Ordinance, 1959 and the Rules made under the Ordinance
eating of the jelly is fit for human consumption.
Held: Order of the Ministry of commerce and the notification issued by
respondent No.6 dated 02.05 .2002 are hereby quashed.
Md. Kamrul Hassan
& Ors Vs. Ministry of Commerce & Ors 11 BLT.(HCD).325
Article —102
Since
the petitioners appointed on muster roll basis and on consolidated pay basis
under the project were subsequently regularized and their posts adjusted
against newly created regular posts, in our view cancellation of the
regularization and adjustment orders by the same authority without assigning
any reason and without giving them any opportunity of being heard is illegal
and without any lawful authority.
Md. Rana Masud Vs.
Jamuna Multipurpose Bridge Authority & Ors. 11 BLT (HCD)-328
Article —102
Legitimate
expectation — In the instant Case the petitioners were never appointed as
regular employees or officers of the DESA but each of them were appointed to
work for a period of 89 days and after 89 days, after some interval they were
appointed for further period. In this way each appointment was only for maximum
period of 89 days and we have also noticed that in each appointment it is
clearly mentioned that the appointment is not an assurance for further
absorption. So, Knowing full well that there is no assurance for future
absorption, the petitions accepted the job on daily wage basis the Petitioners
have no legitimate expectation.
Md. Monjur Alam
& Ors. Vs. Dhaka Electric Supply Authority. 11 BLT (HCD)-314
Article -102
The
petitioner even if is an accused in another criminal case shall not, according
us, be debarred from seeking relief from this Court in an application under
Article 102 of the Constitution, to challenge another order if the said order
is found to be without lawful authority or of no legal effect. Moreover, an
action taken without lawful authority can be challenged, according to us, by an
aggrieved person on an application under Article 102 of the Constitution, and
the criminal case against him if nay or non appearance in the said criminal
case shall not, according to us, debar him from seeking justice in this forum
under Article 102 of the Constitution.
Md, Shafiqul Islam Shimul Vs. Ministry of Homes
Affairs. 11 BLT (HCD)-386
Article- 102
The
Customs authority as per provision of section 81 of the Act was required to
make the provisional assessment final within the reasonable time. In respect of
the consignments of the respondent the customs authority made provisional
assessment in between July, 1991 and February, 1992, but till August 1997 the
customs authority did not make the assessment final although the authority had
the materials before it for making the final assessment of duties and order
levies on the imported goods of the respondent taking the value at US# 400 per
Metric ton. The customs authority inspire of having the materials for making
the provisional assessment final did not make final assessment till August, 197
taking the value of the imported goods at US$ 400 per Metric ton. The customs
authority inspire of having the materials for making the provisional assessment
final did not make final assessment till August, 1997 taking the value of the
imported goods at US$ 400 per metric ton, and thus the respondent was compelled
to file the writ petitions seeking direction for the refund of the excess
amount of duties realized from him at the time of provisional assessment
without basis. In our view in the background excess amount of duties realized
against the goods imported by the respondent.
Bangladesh &
Ors. Vs. Md. Salim Hossain. 11 BLT (AD)-71
Article- 102
Nature of Certiorari— Admittedly respondent No. 1 has not prayed
for his reinstatement in service with back wages, relief sought for is
declaratory form and the Labour Court found that such relief is not available
to the respondent even though he has a good case for directing reinstatement.
It appears from the perusal of the record that the Labour Court found that the
respondent has a case but because of wrong prayer no relief can be granted. The
High Court Division on the other hand granted relief by way of reinstatement.
In view of the aforesaid decisions of this Court we hold that the High Court
Division was not justified in passing the order of reinstatement of the
respondent in service with 50% back wages. The High Court Division acted beyond
jurisdiction.
B. T. C Ltd &
Anr. Vs. Md. Azizul Huq & Ors. 11 BLT (AD)-84
Article —102
Secure
the ends of Justice for the fault of the petitioners, the respondent No. 1
should not suffer as he had only last chance to be admitted into M.S. Course
(Urology) pursuant to the notification dated 4.11.1999 which was for one year
only and accordingly allowing to pursuit him higher education in M.S. Course
(Urology) on being admitted in the said Course even by increasing one seat if
necessary by the authority as mentioned in the impugned order do not suffer
from any illegality but the same is also warranted in the facts and
circumstances of the case, in order to secure the ends of justice.
Dhaka Medical
College Vs. Dr. Manzoor Rasheed Chowdhury & Anr. 11 BLT (AD)-129
Article-102
We find
that while the petitioner submitted his application filling up the BPSC form
No. 2 she indicated her preference for the police cadre and accordingly she was
allowed to sit at the written examination and after she was successful in her
written examination she was allowed to appear before the Viva Voce Examination.
Board and after completion of the same successfully she was selected for the
service. Selection of the petitioner was processed by computering the result of
the written examination and the viva voce examination and long after her
selection she was informed that she did not fill up the form properly and
legally and the selection was cancelled.
Held— The High Court Division has given correct and cogent reason to
declare the cancellation order as illegal and without any legal effect.
Govt. of Bangladesh
& Ors. Vs. Farida Yesmin 11 BLT (AD)-94
Aritcle-102
Direction for refund
of the amount claimed by the respondent.
Since
the papers on the basis whereof the High Court Division has arrived at the
definite finding that the petitioners owe to the respondent an amount of Tk.
4,56,000/- can in way be was be considered disputed materials or judgment
sought to be appealed is called for.
A.D.C. (Rev) &
Ors. Vs. Co-operative Society Ltd.11 BLT (AD)-97
Article 102
Natural Justice— Non-Supply of enquiry report along with the
2nd Show Cause notice violated the rule of Natural Justice.
BADC Vs. S. H.
Bhuiyan & Ors 11 BLT(AD)-164
Article-102
Appointment of Temporary Nikah Registrar by
way of curtailing the area of the petitioner.
Curtailment
of the area of a Nikah Registrar is within the jurisdiction of the Government.
Monwar Hossain Vs.
Govt of the Bangladesh & Ors. 11 BLT (AD)-168
Article —102
Not
Maintainable – In the instant case the impugned order has been passed in the
execution proceeding and the petitioner could avail the provision of order 21
rule 90 of the Code of Civil Procedure in setting aside the auction sale on
ground of material irregularity and fraud alleged by any of the party to the
execution proceeding arising out of judgment and decree passed under the Ain as
the same could have been adequately dealt with under the said provision, and in
the facts and circumstances of the instant case the writ jurisdiction is not
maintainable for deciding the question of fraud and material irregularity in
publishing and conducting the sale, which are essentially a question of fact to
the determined on evidence and could not be conveniently dealt with in writ
jurisdiction.
M/S Antibiotic
Stores & Ors Vs. Artha Rin Adalat & Ors 11 BLT (AD)-133
Article —102
Not
Maintainable— The respondent prayed for a declaration that the impugned order/
supercession dated 18.12.1994 passed by the Ministry of Environment and Forest
should be declared to have been passed without lawful authority and also prayed
for considering the seniority of the petitioner while promoting officers to the
posts of Deputy Conservator of Forests. The prayer portion indicate that the
writ petition is in respect of terms and conditions of service— we are of the
view that the writ petition was filed is not maintainable.
Ministry of
Environment Of Forest & Anr Vs. Shah Md. Nurul Islam. 11 BLT (AD)-146
Article- 102
Maintainability— When applicability or non- applicability of
certain Orders, Notifications. Rules are in question, in that case, it is a
question of interpretation of law, Where interpretation of law is in question,
the Write Petition is maintainable.
M/s Reliance Auto
Ltd. Vs. Commissioner of Customs & Ors. 11 BLT (HCD)-258
Article-102
Not
maintainable—It is the case of the writ petitioners that they acquired 25 acres
of land by deed of conveyance from the Government and that later on acquired
further 6.97 acres of land and that while they were in possession BRI in 1962
illegally encroached upon certain portion of land of the Society and thereupon
Society filed civil suit wherein there was an order of injunction. Thereupon
the Government came forward to compromise
with the Society and because of that suit having not been proceeded with
the same was dismissed. That to arrive at a compromise there were several meetings and there were
negotiations and that from time to time formulae were evolved though ultimately
because of procedural complications could not be given final shape and that
while the negotiation was going on Government by police force evicted the
occupants, who are the members of the society, of the land of the society. —
Held: The Petitioners remedy lies not the writ jurisdiction since law is
settled by now that matters seriously contentious in nature requiring
adjudication on the basis of evidence of detail nature is outside the scope of
writ jurisdiction as because in the said jurisdiction in general matters are
disposed of in summary manner on the basis of Affidavit evidence except in an
exceptional case where a person may be called by the Court to give his
testimony as to a matter which is of not seriously contentions or disputed in
kind or nature. The instant case does not come within the group of exceptional
cases where writ court may dispose of a matter by calling one to give one’s
testimony as to the subject matter of the case before the writ court,
particularly as to matter of possession of the plots and quantity of the lands
comprise by the said Plots as mentioned in the instant writ petition.
Housing & Public
Works & Ors. Vs. Housing Society Ltd. 12 BLT (AD)-1
Article- 102
Sent back —for fresh
hearing
The High
Court Division in discharging the Rules took into consideration new papers and
documents on the last day of hearing without giving opportunity to the
writ-petitioners to controvert the same and that High Court Division based its
judgment on a document which was not at all part of the record as contended by
the appellants counsel —Held We are of the view that the writ petitions need be
heard afresh by the High Court Division upon affording opportunity to the writ
petitioners to controvert the contents of the papers i.e. Affidavits affirmed
by the officials denying the genuineness of their signatures in documents
relating to allotments and explaining the circumstances in the background
whereof they signed the papers pertaining to allotments (there is reference of
these papers in the judgment of the High Court Division) and that also for
affording opportunity to the writ petitioners to put forward their case as
against the material which was not part of the record,, Annexure-(f) -letter
dated 19.11.2000 of the office of the Chief Engineer, Housing odhidaptar.
Giashuddin &
Ors. Vs. Govt. of Bangladesh. 12 BLT (AD)-44
Article- 102
The
court of law would always jealously guard against any abuse or Misuse of power/authority
by the State functionary in dealing with the State property and to see that the
fundamental principles of State policy are presented and preserved in
furtherance of the protection of the rights and interests of its citizen.
SSA Bangladesh Ltd.
Vs. Mahmudul Islam & Ors 12BLT(AD)171
Article-102
The writ
petition was filed challenging legality of the order of the Customs Authority
levying 25% advalorem duty, 15% supplementary duty and 4% flood surcharge on
the supplementary duty in respect of the imported goods-Ordinary Grey Portland
Cement, on the ground that the said levy of enhanced duty and surcharge were
illegal — Held: In the VAT Act, 1991 by way of reference Customs Act, 1969 has
been referred and as such provisions of Customs Act have legally been applied
as the same stood at the material time i.e. at the time when Supplementary duty
was assessed on the goods imported by the petitioner.
Hajee Md. Salim Vs.
Commissioner of Customs &Anr 12BLT(AD)161
Article-102
Admittedly
pursuant to the judgment was dated 22nd June 1998 in Writ Petition No.5023 of 1997
the respondent student was allowed to seat at the special subsidiary
examination in order to regularize his position like other students standing on
the same and similar position and accordingly he sat for the examination in
July and August1998 and the result was published on 5th of July 1999 wherein he
being successful at the examination his subsidiary examination result was
regularized. The appellant could have cancelled the result of the B.Sc.
(Honors) and M.Sc. Examination at that time while canceling the result of the
3R year subsidiary examination. But the respondent having been given chance to
regularize his Hons. result pursuant to the order dated 22.2.1998 and the
respondent having passed the special examination to regularize the result of
the subsidiary examination and thereby cured the irregularity in the Honors
examination result and subsequent M.Sc. examination result. Thereafter the
issuance of the impugned order contained in Memo dated 27th day of October 1998
was surely an afterthought for collateral purpose.
The Vice Chancellor
Vs. Mohammad Nurul Amin Chowdhury 12 BLT (AD)198
Article- 102
High
Court Division is quite competent to make direction to the person performing
functions in connection with the affairs of the Republic or of a local
authority to refrain from doing thing not permitted by law or to do something
required by law to do and that for the purpose of effective compliance of the
direction so given the High Court Division is quite within its jurisdiction to
make further direction to see that its direction is being executed or to make
its direction effective.
M/s. Micro
Electronics Ltd Vs. M/s. Rahimafrooz Batteries Ltd & Ors 12 BLT (AD)218
Article- 102
RAJUK
would scrutinize the petition filed by the writ-petitioner seeking allotment of
land in the Rehabilitation Zone as affected person and that if the
writ-petitioner satisfies the conditions and criteria set down by the RAJUK
entitling a person to have the allotment of land as affected person then the
RAJUK would make allotment to the writ petitioner, otherwise not.
RAJUK Vs. Mrs.
Jahanara Begum & Ors 12 BLT (AD)222
Article- 102
A contract between
Government and a Private Party—Question is that whether the Government can
legally change time conditions of the agreement.
The
Secretary, BJMC has issued the impugned letter, changing certain conditions of
the Agreement which they are not legally entitled to change in order to
vary/modify/ alter or substitute any agreed terms and conditions of a agreement
unilaterally.
Bangladesh Jute
Mills Corporation & Anr Vs. Md. Abbasullah & Ors 12 BLT (AD)225
Article- 102
Whether the result
of the LL.B. final examination of the Petitioner was withheld on the ground of
anomaly in the signatures.
When
explanation were given by the petitioners that the allegation was not clear to
them the petitioners were not given any opportunity to explain their position
by appearing personally before the authority. Natural justice demands that such
opportunity should be given to a person before taking any Penal action against
him. Moreover, we have also noticed from the impugned order that no explanation
has been given as to why the reply of the petitioners were not found
satisfactory and on what ground the action was taken. In view of such position,
we are of the view that the impugned orders issued against the petitioners are liable
to be declared illegal.
Shahinur Rahman
& Masum Billa Vs Govt. of Bangladesh & Ors 14 BLT (HCD)102
Article- 102
The
petitioner filed an application praying for allotment of plot no. 241/1, Block
No. H, Road No. 1, Shah Jalal Housing Estate, Sylhet but the said plot was
allotted to the respondent no. 5, and no plot was allotted to him, as such,
being aggrieved he obtained the present rule — Held: Admittedly allotment of
any plot is not a vested right. This legal position has already been conceded
to on behalf of the petitioner. Since the applications for allotment of all the
applicants including that of the petitioner, had been duly considered by the
allotment committee, this petition Linder Article 102 is Misconceived and the
Rule is liable to be discharged.
Md. Abdullah Vs.
Govt. of Bangladesh & Ors 14 BLT (HCD)123
Article – 102
Whether the precondition paying the assessed
value of the stolen goods to the petitioner after realizing the same from
persons responsible for theft should not he declared illegal.
The
goods were under the possession and control of the Chittagong Port Authority
and that the liabilities of the Port Authority are that of a bailee under
sections 151, 152, 161 and 164 of the Contract Act – responsibility for the
loss – the enquiry committee held that the employees of the Chittagong Port
Authority were negligent in their duties and that they were responsible for the
loss. – Held: the condition imposed by respondent No.2 that ‘after realizing
the amount from the persons responsible for theft” as contained in Annexure D is
declared to have been passed without lawful authority having no legal effect.
M/S. J.B. Garments
Limited Vs. Govt. of Bangladesh 14 BLT (HCD)186
Article- 102
Whether
the special committee on interest Remission has been constituted to provide
special assistance of the genuine and comparatively small scale entrepreneurs
is a statutory authority The petitioner company received a loan of Tk.
49,00,700.96 out of which the petitioner paid Tk. 50,44,547.63 to the BSRS. So,
it is apparent that the petitioner paid more amount than what the petitioner
received from the BSRS as loan. After substitution of the words “অনাদায়ী সুদ” by the words “প্রাপ্য সুদ” by the Special Committee (Annexure-G), there
cannot be any residual amount left to be paid by the petitioner to respondent
no. 3. So, in view of the recommendation made by the Special Committee for
remission of 100% penal and 100% normal interest of the petitioner company and
in view of the substitution of the words “অনাদায়ী সুদ” by the words, “প্রাপ্য সুদ” by the Special Committee the BSRS cannot claim
any more money from the petitioner. Since the Government itself is interested
to provide special facility in the form of remission of interest to the sick
industries, none else, including the BSRS, should have any say in the matter.
Rony Twines Ltd. Vs.
Govt. of Bangladesh & Ors. 14 BLT (HCD)276
Article – 102
Legality
of the subsequent events. The Rule in the instant writ petition was issued on
3.8.2003, in respect of the legality of holding the technical bid of the
respondent no.4. The controversy or the dispute or the issue will be decided,
as it contained on that date. The rights of the parties and the consequent
legality of any action has to be decided, as it stood on the date of issuance
of the Rule. In deciding such issue, the Court not only can, but in the
interest of justice, ought to take the subsequent events into consideration and
may even mould the relief as originally prayed for, depending on the
circumstances. Otherwise, it will be tantamount to giving premium to the
alleged illegal activities of the concerned authorities. Under the
circumstances, we are of the opinion that the Rule has not become infructuous,
the Court can, and not only consider the legality of the decision of the
concerned Authorities in accepting the technical bid of the respondent no.4,
but if necessary, also the legality of the subsequent events leading to the
execution of the contract on 24.3.2004.
Basic Engineering
Ltd. Vs. Bangladesh & Ors. 14 BLT (HCD)328
Article – 102
Since
the respondent no.4, does not have any experience in the field of container
handling operations, its Technical Bid was non- responsive, as such, the
recommendation of the Technical Evaluation Committee, in respect of the
respondent no.4, was illegal and invalid.
Basic Engineering
Ltd. Vs. Bangladesh & Ors. 14 BLT (HCD)328
Article —102
The
Petitioner is celebrated journalist and a peace activist and as per Article 21
of the Constitution the petitioner has public duty to protect the legal system
of the country and has sought for a direction upon the government to
investigate the connection of some judicial officer with a banned religious
organization namely “জামাতুল
মুজাহিদীন বাংলাদেশ”—Held It appears that the instant application
has been filed by the petitioner on the basis of a report published in a daily
news paper in connection with certain criminal cases. On perusal on the
same it appears that the petitioner has no Locus Standi in the instant case as
he is not affected in any manner Furthermore certain vague and fictitious
matters were raised in this application which cannot be examined by this court
by way of judicial review exercising the power confirmed under Article 102 of
the Constitution of the People’s Republic of Bangladesh.
Salah Uddin Shoaib
Choudhury Vs. Govt. of Bangladesh 14 BLT (HCD)566
Article- 102
Maintainable — In the instant writ petition the writ
petitioner No. 1, is an association of the share holders and is a business
firm, and the petitioner No. 2 is a share holder having substantial financial
interest In the petitioner No.1 company and as share holder he invested money
in the company and therefore the financial interest of the company involves the
interest of the financial interest of the share holders and the inaction on the
part of the Respondent No. 1 having affected the right to do business and to
acquire property by the writ petitioners, we find the writ petition to be
maintainable.
Jamuna TV Ltd. &
Anr. Vs. Bangladesh Telecom. & Ors 12 BLT (HCD)-1
Article —102
Petitioner’s
apprehension which is called in law, a “threatened injury” and no writ lies for
a Supposed or threatened injury.
Al Nazia
Establishment Vs. Commissioner of Customs & Ors 12 BLT (HCD)-121
Article- 102
The
reply of the petitioners was given due consideration, that the petitioners
remained silent about the inspection report and report of the standing
Committee and also did not taken any steps for rectification of the record as
maintained in the office of the Registrar of the Joint Stock Companies, the
argument of Mr. Azmulal Hossain to the effect that the petitioners were not
given reasonable opportunity cannot be accepted.
Kamal Uddin Ahmed
& Ors Vs. Bangladesh Bank & Ors. 12 BLT (HCD)223
Article- 102
Maintainability– The petitioners have challenged the impugned
orders passed by the authority directing to assess the customs duty on the
consignments at a rate fixed by SRO No. 158 dated 12.6.2003 instead of exempted
rate under SRO No. 56 dated 16.3.1999. Here the question arises as to the
applicability of SRO No. 158 dated 12.6.2003 which is a Statutory. Regulatory
Order passed under the authority of section 19 of the Act section 14 of the VAT
Act that means here the question of interpretation of law as well as the
applicability and the authority of the SRO arises.-Thus in our opinion availing
the writ jurisdiction under Article 102 of the Constitution under such
situation is permissible.
Cab-Express (BD)
Ltd. Vs. Nipun Cab Ltd. 12 BLT (HCD)457
Article – 102
The
Civil Surgeon, being authorised advertised for appointment . And the writ
petitioner applied for the post of appointment at Sterilizer and was appointed
– held the respondent is not employed in any project like building of a house
or a bridge whose purpose has been fulfilled or the project came to an end with
the completion of the work but has been engaged in the modernisation of the
hospital and the nature of job of the respondent for rendering medical
assistance in the matter of providing sterilize attached to O.T. Division and
the project being a continuing one the employee’s services are liable to be
regularised under the terms of the advertisement for the post.
Government of
Bangladesh & Ors Vs Md. Salim Reza & Ors. 13 BLT (AD)50
Article — 102
Writ Jurisdiction
—in case of breach of contract
Writ
jurisdiction can be invoked in case of breach of contract when :-
(a) the
contract is entered into by the Government in the capacity as sovereign;
(b)
where the contractual obligation sought to be enforced in writ jurisdiction
arises out of statutory duty or sovereign obligation or public function of a
public authority;
(c)
where contract is entered into in exercise of an enacting power conferred by a
statute that by itself does not render the contract a statutory contract, but “
if entering into a contract containing prescribed terms and conditions is a
must under the statute then that contract becomes a statutory contract. If a
contract incorporate certain terms and conditions in it which are statutory
then the said contract to that extent is a statutory”;
(d)
where a statute may expressly or impliedly confer power on a statutory body to
enter into contracts in order to enable it to discharge its functions and the
contract so entered by the statutory body is not an exercise of statutory power
then merely because one of the parties to the contract is a statutory or public
body as such contract is not a statutory contract;
(e) when
contract is entered into by a public authority invested with the statutory
power, in case of breach thereof relief in writ jurisdiction may be sought as
against such on the plea that the contract was entered into by the public
authority invested with a statutory
(f) when
the contract has been entered into in exercise of statutory power by a
statutory authority in terms of the statutory provisions and then breach
thereof gives right to the aggrieved party to invoke writ jurisdiction because
the relief sought is against breach of statutory obligation.
PDB & Ors Vs
Md.Asaduzzaman Sikder & Ors. 13 BLT (AD)58
Article- 102
No
authority can exceed the power given to it. Any action taken by the petitioner
in derogatory to the law or rules set for the purpose or in defiance of the
principles of natural justice would make the purported exercise of jurisdiction
invalid or in excess of jurisdiction. Thus High Court Division could interfere
with the impugned order when the person proceeded did not get proper opportunity
to defend himself and when it found that the act done or proceeding taken is
vitiated by lack of jurisdiction or by being in excess of jurisdiction.
Pabna Mental
Hospital Vs Tossadek Hosain & Ors. 13 BLT (AD)91
Article- 102
In the
instant case the gradation list of 1990 was prepared upon a wrong
interpretation of rule 4(2)(Gha) and as such it could not create a legal right
in favour of the writ petitioners and accordingly, the plea of vested right
could not be alleged to have accrued to the writ petitioner-respondents.
Govt. of Bangladesh
& Ors. Vs. Md. Abdul Halim Miah & Ors. 13 BLT (AD)120
Article- 102
Whether the
seniority of the writ petitioners having been determined as per Rule 4(2)(Gha)
of the Service Counting Determination of Seniority Rules 1990 and the said
petitioners power; not having challenged the said Rules as ultravires the
Constitution and the grievances raised in the writ petitions are regarding
seniority in the service, the High Court Division erred in law in not holding
that the writ petitions are not maintainable.
There
was no violation of any fundamental right as alleged and the High Court
Division acted illegally in declaring the impugned order dated 27.9.1998 and
the impugned decisions as adopted/taken at the meeting of the standing
committee on 2.6.1999 and 20.9.1999 containing the minutes and of the gradation
list published in Bangladesh Gazette on 23.11 .1999 placing the
writ-respondents No.11-79 in serial No.115 to 183 therein and the remarks under
clause 9 of the gradation list against the names of the writ petitioner-
respondents to be unconstitutional or void or without any lawful authority.
Govt. of Bangladesh
& Ors. Vs. Md. Abdul Halim Miah & Ors. 13 BLT (AD)120
Article—102
Confiscating the arms and canceling the licenses
of the same.
The
undenied position is that Deputy Commissioner cancelled the licenses of the
Respondents without issuing any notice to them, nor heard them before passing
the impugned order. In that view of the matter we are of the view that High
Court Division was not in error in declaring the order canceling licenses of
the Respondents is of no legal effect and that the same was passed without
lawful authority.
Bangladesh Vs. Md.
Azharul Islam and Anr. 13 BLT (AD)166
Article —102
The Petitioner was a
member of a disciplined force and claimed his Pension benefit
The
question of maintainability —since no decision of a Court or tribunal has been
challenged, or an order affecting his
terms and conditions of service has been questioned or application of any
disciplinary law has been raised, on the principle settled in the case of Col.
Md.Hashmat Ali, this petition under Article 102 of the Constitution is
maintainable.
Air Marshal
Jamaluddin Ahmed Vs. Govt of Bangladesh & Ors 13 BLT (HCD)48
Article- 102
Whether
in the absence of finding of “guilty of gross Misconduct” against the writ
petitioner by the Supreme Judicial Council as mandated by Article 96(5) and (6)
of the Constitution, the impugned order of removal of the writ petitioner by
the Hon’ble President under Article 966) of the Constitution is without
jurisdiction and without lawful authority and of no legal effect.
Article
—96(5) has authorized the Council to give its finding as to whether the judge
concern (i) has ceased to be capable of properly performing his functions of
his office because of physical or mental incapacity, or (ii) is guilty of gross
Misconduct But in the report the Council, inspite or its findings that
allegations have not been proved also, opined that the writ petitioner should not
continue as Judge of the High Court Division of the Supreme Court of
Bangladesh, which is, exfacie, beyond the scope of Article-96(5) of the
Constitution and therefore such portion of opinion contained in the report is
without jurisdiction.
Syed Shahidur Rahman
Vs. Govt of Bangladesh & Ors 13 BLT (HCD) 74
Article- 102
Allegations
of bias — It appears that earlier the Ministry of Education by the Memorandum No.Sha-4/7C-3/2001/464
dated 4.1.2003, directed the Chairman of the Governing Body to take action against
the petitioner (Annexure-C), including his removal from the post of the
principal of the college. The said memorandum was challenged in writ Petition
no.3 13 of 2003. After hearing, by a judgment dated 12.3.2003 (Annexure-G), the
said notice was declared illegal and struck off. In the said writ petition,
Mr.Mainul Hosein, Advocate, appeared on behalf of the Chairman of the Governing
Body of the College and on its behalf conducted the hearing of the said writ
petition. He is also a member of the Syndicate of the National University. It
is alleged that Mr.Hosein participated in the meeting of the Syndicate dated
22.8.2003 where the recommendations of the Governing Body of the College to
remove the petitioner was approved —As such, the said approval of the Syndicate
of the National University, in its meeting held on 22.8.2003, in respect of the
recommendation of the Governing Body of the college for removal of the
petitioner, is a nullity and the order of removal of the petitioner,
communicated to him by the letter ref; no. এস বি পি সি সি/০২/০৩ dated 22.8.2004 [Annexure-I(l)I, is liable to be declared illegal.
Kazi Farooque Ahmed
Vs. National University & Ors 13BLT(HCD)181
Article —102
Writ of quo warranto
In the
instant case, as it appears that the allegations have been made in respect of
the conduct of the learned Chief Justice, while he is in office, hence we are
of the view that the instant application as framed and filed is not
maintainable under article 102 of the Constitution.
Abdus Salam Mamun
J.R.Modassir Hussain Vs Justice Syed 13 BLT (HCD)270
Article- 102
Respondent No.2, a
Market inspector employed in the service of Chittagong city corporation,
whether the respondent No.2 is a worker and whether the case under section 34
of the 1.R.O before the Labour Court was at all maintainable.
Jurisdiction of the
Court —the
Corporation is neither an industry nor a commercial establishment or an
industrial establishment. As such, its employees, whether employed in a
managerial capacity or otherwise, are not workers, either within the provisions
of the IRO or under the Act. They are the employees of the Corporation and the
terms and conditions of their service are regulated by the provisions of the
Ordinance itself and the rules framed thereunder, if any. -As such, Judgment
and order Passed by the labour Court is without lawful authority.
Chittagong City Corp
& Ors Vs Md. Afzal Hossain & Ors 13 BLT (HCD)347
Article-102
Whether a School
Teacher of Government Primary School can be transfer in another Upazila.
It
appears from the impugned transfer order, evidenced by Annexure-B to the writ
petition, that the writ petitioner has been transferred from Shahid Smriti
Government Primary School situated within Upazila Tongi to Nayanagar Government
Primary School situated in another Upazila, namely Kapasia. Thus the transfer
order as made appears to be without jurisdiction.
Nurul Islam Howladar
Vs Govt. of Bangladesh & Ors. 13 BLT (HCD)301
Article—102
The result were
withheld with a comment in the result Sheet “Fake Reg.” which has been
challenged. Admittedly, at no point of time the students
whose results were withheld and or subsequently cancelled were given any
opportunity to show case or to defeud themselves against the action taken by
the Board—Held: withholding or cancellation of the result of the petitioners
without giving them an opportunity for defence is manifestly arbitrary and
cannot be sustained.
Mohammad Reaz Uddin
& Ors. Vs. Bangladesh & Ors 13 BLT (HD)368
Article —102
Direction to make
payment against pension and gratuity to the petitioner.
On
Perusal of Memorandum No.-অম/অবি/বিধি
নং-১/তপি-২৬/৮৬(অংশ-২)/১৩৫ dated
08.10.2001 issued by the finance division of the ministry of finance,
furtherance to the memo no.অম/অবি/বিধি/পেনশন/তপি-২৬/৯৪/১৭
dated 01.06.1994.
it appear that if there be any problem in any pension case, the Government
servant should be paid his entire pension amount and 80% of the gratuity, and
though the said provision has been made by the government to case the process
of payment of pension and gratuity to a retired employee but in the instant
case it appear that the respondent no.4 did not follow the said provision for
payment of pension and gratuity to the petitioner, a retired government servant
and because of such illegal action of the respondent no.4 the writ petitioner
is suffering both financially and socially and fact remains the writ petitioner
was a low paid of government employee and as such he had to suffer much because
of nonpayment of his pension and gratuity. — The respondents no. 2 to 4 are
directed to ensure payment of the pension and gratuity of the writ petitioner
as per provision of law within 45days without fail and in case of default each
of them shall be liable to pay compensation to the writ petitioner @ of Tk.
500/- per month till payment in made There being no explanation given for nonpayment
of the pension and gratuity in spite of the direction given by an interim order
by this court on 03-03-2002 we are constrained to hold that the persons holding
the office of respondent nos. 2, 3 and 4 respectively on or around 30.03.2002
(when the instant rule as issued with the interim order was served upon them)
disobeyed the courts direction given on 30.03.2002 and are also responsible for
the nonpayment of the petitioners due pension and gratuity as per law and they
have caused immense sufferings both financially and socially to the petitioner
and hence liable to pay compensation therefore. However such sufferings of the
petitioner cannot be equated of fully compensated with money, accordingly we
fix Tk. 2500/- as token compensation amount to be paid to the petitioner by
each of the persons who hold the office of the respondent nos. 2, 3 and 4 on or
about 30.03.2002 (when the instant rule with interim order was served) within
90 (Ninety) days in default the amount 90 (Ninety) days in default the amount
should be recovered under the public Demand recovery Act.
A. K Faziul Haque Vs
Govt. of Bangladesh & Ors.
13 BLT (HCD)420
Article —102
The dispute is with
regard to the office of the Presidentship of Kishorgonj chamber of
Commerce and industry
In the
instant case, vacancy of eight members were declared in the meeting of the
Executive Committee held on 18.9.2002 while seven members were co-opted earlier
on 7.7.2002 when there were no such vacancies, as such, the question of
co-opting any member did not arise on that date. After giving an opportunity to
defend himself, the Executive Committee may declare the seat of a member vacant
and record its such reasons. Only thereafter the question of co-option of any
member arises but when the ceasure of membership has not been formally
declared. the co-option of seven members on 7.7.2002, appears to be illegal on
the face of it. Since the composition of the Executive Committee by the
co-option of seven members on 7.7.2002 itself was illegal, subsequent decisions
taken by the said Executive Committee itself were also illegal. Apparently, the
decisions of the Executive Committee taken on 18.9.2003, were taken on the
strength of the 7(seven) co-opted members instead of the elected members. As
such, the decisions of the Executive Committee in its said meeting held on
18.9.2002, in declaring membership of the petitioner and seven other members as
vacant and also the appointment of the respondent no. 8 as the President of the
KCCI instead of the petitioner, were illegal. Consequently, the decision of the
general body of the Chamber in the Special General Meeting held on 2.11.2002
was also illegal.
A.K.M. Shamsuddoha
Vs Govt. of Bangladesh & Ors. 13 BLT (HCD)444
Article —102
The
decisions reported in 41 D.L.R. and 15 D.L.R. do not bar seeking relief under
writ jurisdiction for a worker or Darowan.
Md. Matiur Rahman Vs
Govt. of Bangladesh & Ors 13BLT(HCD)497
Article – 102
Suspending
the petitioner from the Post of Principal of the Non Government College. The
Petitioner was temporarily suspended – prior show cause notice is not required
as it is not a punishment and the Non-Government College does not come under a
statutory body, the instant petition does not come within the ambit of Article
102 of the Constitution.
Tamiz Uddin Ahmed Vs
Principal, Degree College & Ors. 13 BLT (HCD)571
Article – 102
The writ
petitioner-respondent No.1 was allotted with industrial Plot No.5, Tejgaon
industrial Area, Dhaka by letter dated 02.01.1993 and that she was asked to pay
25% of the salami within one month. Being unable to make payment within
stipulated period she prayed for time and the Government extended the time for
making payment of the amount within six months from the dated of service of the
letter dated 23.03.1992. The writ petitioner accordingly paid 25% o salami with
10% interest on 16.09.1992 i.e. well within the extended period allowed by the
Government. – When she was waiting for execution and registration of the lease
deed she was served with impugned letter dated 02.01 . 1993 cancelling the
allotment. – High Court Division make the rule absolute -Held: the actions of
the State should generally be in favour of protecting the rights of the
citizens and should not, in the state of affairs as in the instant case, be
aimed at causing prejudice taking away such right. We are thus of the view that
the High Court Division did not commit any error in making the rule absolute.
Bangladesh Vs. Mrs. Momtaz begum & Ors
14BLT(AD)10
Article — 102
Whether the writ
petition filed without filing the appeal to the prescribed authority was
maintainable
Because
of the materials on record the order of dismissal being illegal and also as
lacked bonafide, as such even if no appeal was filed against order of dismissal
to the prescribed authority the writ petition so filed challenging legality of
the order was very much maintainable.
Mayor, Chittagong
City Corp: Vs. Md. Jahangir Faruk & Ors. 14 BLT (AD)24
Article-102
Writ of Certiorari
It
appears that the High Court Division did not consider the materials on record
in proper perspective. It may be mentioned here that the scope of a writ of
certiorari is very limited. The High Court Division can only interfere in the
findings of fact arrived at by the inferior tribunal only when it be shown that
the findings of the tribunal is based on no evidence or non-consideration of
material evidence on record.
Govt. of Bangladesh
& Anr. Vs. Md. Afsar Ali & Anr. 14 BLT (AD)44
Article-102
ad-interim relief
It
appears to us that it is the case of the Respondent No.1 that the Customs
Authority is not releasing his goods since he did not pay the arrear customs
duty and other charges.-We are of the view that High Court Division was not
justified in making the ad-interim order directing the appellant No.2
(respondent No. 1 in the writ petition) to release the goods of the Respondent
No.1 imported through the Letters of Credit as mentioned in the writ petition
on acceptance of customs duty and other charges in cash to be assessed by the
Customs Authority within 7 days from the date of receipt of the certified copy
of the order of the High Court Division. The High Court Division in fact by the
ad-interim order has granted the full relief prayed for in the writ petition.
The practice of granting full relief by granting ad-interim relief has
uniformly been depreciated.
Govt. Of Bangladesh
& Ors. Vs. Md. Matiur Rahman and Anr. 14 BLT (AD)64
Article – 102
Since in
the background of the authoritative pronouncement of the Court as to that the
properties of the Respondent No.3 are not abandoned properties and thereupon
abandoned property authority having had taken step to restore possession of the
property which once taken over as abandoned property to the claimant the
allottee i.e. the appellant cannot question the action of the abandoned
property authority, i.e. challenged in the writ petition since the allottee did
not voluntarily deliver the possession to the abandoned property authority for
the purpose of handing over the property free from all encumbrances to the
claimant of the property whose property was taken over as abandoned property
but declared by the Court has not abandoned property.
Pubali Bank Limited
Vs. Govt. of Bangladesh & Ors 14BLT(AD)135
Article – 102
Whether in writ
jurisdiction review application is maintainable.
We are
of the view High Court Division is competent to resort to the procedure, either
be the same review or re-consideration or reexamining of its judgment, of which
it is the master, and thereupon would he competent to exercise “both its
procedural and substantive discretions only on the ground of justice, equity
and good conscience”.
Md. Serajuddin Ahmed
& Ors. Vs. A.KM. Saiful Alam & Ors 14 BLD (AD)147
Article — 102
The
appellant has entered into a contract with BIWTA, a local authority which
obtained funds from international organizations such as the World Bank and the
IDA — Held In the instant case it is apparent that the contract is an ordinary
commercial contract having no root in any statute or was not entered into in
sovereign capacity—Writ petition is also not maintainable.
Ananda Builders
Limited Vs. BIWTA & Ors. 14 BLT (AD)190
Article – 102
A writ
petition is maintainable where the facts are undisputed. In the instant case
the facts of the writ petition do not appear to the undisputed. From this point
of view also the writ petition is not maintainable.
Wega Fashion Sweater
& Ors. Vs. Sayeda Sajeda Hossain & Ors 15 BLT (AD)114
Article – 102
Not
maintainable —the acts challenged were committed by Mr. Anwar Hossain not in
connection with the affairs of the Republic or a local authority but in the
affairs of lttefaq Group of Publications Ltd. in his capacity as Executive
Director-Il of the Company and as the Printer, Publisher and Editor of the
Daily lttefaq while he was a Minister and not in the affairs of the republic or
of a local authority and as such these two writ petitions are not maintainable.
Anwar Hossain Vs.
Mainul Hossain & Ors. 15 BLT (AD)144
Article- 102
The
right to move the High Court Division in accordance with Article 102(1) of the
Constitution for enforcement of the fundamental rights conferred by Part III
thereof is itself a fundamental right guaranteed under Article 44(1) thereof
and the High Court Division itself having been instructed with the specified
jurisdiction under Article 102(1) of the Constitution to exercise such powers
there under should exercise such power on specified fields without offending
other provisions of the Constitution, for the simple reason that a right to
judicial review under Article 102(2) is neither a fundamental right nor a
guaranteed right i.e., to be precise it is not at all whether remedy nor a
remedy for all wrongs, which is available only when there is no other equally
efficaciously remedy provided by law.
Govt. of Bangladesh
& Ors Vs. M. Salahuddin Talukder 15 BLT (AD)60
Article —102
Whether the allotees have no locus standi to
challenge the order of cancellation in writ jurisdiction seeking declaration
that the action of the authority is without jurisdiction.
The High
Court Division held since the order of cancellation of the allotment of the
writ- petitioners and that order for eviction of the writ petitioners were made
“without assigning any reason, without any show cause notice, and without
giving any opportunity to be heard” and as such the orders of cancellation “are
not in accordance with law” and that as the writ petitioners have not violated
any terms and conditions of the letter of allotment the orders of cancellation
were not sustainable—In the afore state of the matter the High Court Division
did not commit any error in declaring the action of the writ-Respondents E
illegal and to have been done without lawful authority.
Govt. of Bangladesh
& Ors Vs. Mahmuda Begum & Ors 15 BLT (AD)168
Article —102
Not Maintainable— The petitioners have sought for declaration
of the character or status, which under the circumstances is a disputed
question of fact and requires investigation and determination on evidence
adduced by the parties, for which the writ jurisdiction under Article 102 of
the Constitution is not the proper jurisdiction and accordingly this petition
is not maintainable.
Shoma Akter Shoma
& Anr Vs. Bangladesh & Ors 15BLT(AD)197
Article- 102
The
Petitioner a statutory corporation, complied with all the necessary formalities
before purchasing of the above Plot and the acts and omissions of the
Government agencies as well as of RAJUK, the lesser of the above PlotNo.4, led
the petitioner to treat the above Plot as free from all encumbrances and any
legal defect as to the title and further RAJUK after mutating the name of the
respondent No.4 the original leasee also gave him permission to transfer the
above Plot in favour of the petitioner and after transfer RAJUK also mutated
the name of the petitioner. Further, no apparent steps were also taken by the
concerned authorities in respect of the above Plot within the span of 10 years
after the coming into force of the laws relating to abandoned properties and
the petitioner, a statutory corporation, had also no knowledge about the
contents of the files reflected to in the judgment of the Court of Settlement
and is also not a party to the alleged irregularities as shown in the files and
the petitioner is also a bonafide purchaser for value without notice and
accordingly the petitioner deserves sympathetic and preferential treatment from
the concerned authority and so in case of transfer of the above Plot No.4 the
authority concerned should give the petitioner preferable treatment and in the
meantime the possession of the petitioner in the above Plot No.4, through their
tenant, should not also be disturbed till transfer of the same.
Sadharan Bima
Corporation Vs. 1st Court of Settlement & Ors 15 BLT (AD)245
Article- 102
Whether the
Provisions of Sub-sections (2) and (3) of Section 4 of the Artha Rin Adalat Ain
are violative of Articles 115 and 116 of the Constitution.
The
Judge of the Artha Rin Adalat originally was Subordinate Judge, later
redesigned as Joint District Judge and that the aforesaid Judge was appointed
by the President and the control and discipline of the Subordinate Court as
envisaged in Article 116 of the Constitution very much vest in the President
and in case of posting, as in the present case, the Supreme Court has been
consulted and the action in question has been taken with the approval of the
President as evident from the gazette notification published to that effect
inasmuch as even in the absence of such notification Sub-section (3) of section
4 of the Ain provides that the jurisdiction of the Artha Rin Adalat shall vest
with the Joint District Judge having the local jurisdiction, as if
declared/established under the Ain for the purpose of achieving the object of
the Ain and shall be deemed to be the Artha Rin Adalat under the Ain. The
aforesaid sub-section (3) having the legislative sanction by virtue of deeming
clause having been declared/established under Section 4(1) and (2) of the Ain,
has been equated with the Adalat established under Subsection (1) and (2) and
could not be challenged as the appointments to the post of Joint District Judge
and posting/conferring with the jurisdiction are invariably done by the
President in consultation with the Supreme Court under the provisions of
Article 115 and 116 of the Constitution.
A.R.A. Jute Mills
Ltd. Vs. Janata Bank & Ors 15 BLT (AD)295
Article- 102
Rule of Law and
Public Interest
Held: we
are of the view that since the respondent Nos. I and 5 started construction of
multi-storied shopping complex in the area shown in the Master Plan Public Car
Parking center and the vacant space was handed over to the respondent No.1 for
establishing a Public Car Parking Centre in the earmarked area. —The public
interest which should be championed by the agencies like the respondent No.1,
is ignored or perverted at the instance of the vested interests, i.e. the
respondent No.1, the respondent No-5 and the allotees of the shops. It is
unfortunate to witness the close collaboration between them. It is a glaring
instance of the fact that though in the environmental field the respondent No.
us a very important statutory body and is entrusted with the duty to preserve
environment, emerged as instrument of exploitation and this is in large part
due to private interest in the grab of “greater public interest and for
acceleration of revenue”. The right to life inherent in Article 32 of the
Constitution does not contemplate so.
Sharif Nurul Ambia
Vs. Dhaka City Corporation & Ors 15 BLT (AD)305
Article —102
The responsibility
—the learned members of the Bar
There
being specific remedy in the statute for filing appeal against the judgment and
decree of the Artha Rin Adalat —inspite of the fact that the law in the matter
has been settled long back petitions are unnecessarily filed under Article 102
of the Constitution challenging the judgment of the Artha Rin Adalat without
making any case covered under the aforesaid Article not to speak of any ground
touching fundamental rights of the petitioner. As a result the superior courts
are burdened with unnecessary petitions causing wastage of public time which
should be discouraged by all concerned including the learned members of the
Bar, who are as well officers of the Court.
Bangladesh
Agricultural Development Corporation Vs. Artha Rin Adalat & Ors 15 BLT
(AD)363
Article —102
Government Circular
It
appears that the government vide notification dated 06-08-05 as evident in
Annexure-C to the Writ Petition directed the bank namely, Bangladesh Krishi
Bank to waive all types of interest and also directed for easy installment of
the principal amount. But the respondent bank instead of waiving interest,
adjusted the amount paid earlier with interest which on the face of the record
is violative of the government circular.
M/s. Mamun Poultry
Complex Vs. Govt. of Bangladesh & Ors 15 BLT (HCD)56.
