Constitution of Bangladesh, 1972
Article —102
Substantial justice
should be done
In the
instant case, the respondent no. 2 being aggrieved by the Order dated 23.1.1991
filed an IRO case on the legal position as was understood at that time in 1994
instead of filing a petition under Article 102. The legality of the said very
Order dated 23.1.1991 was before the Labour Court for consideration. The BADC
could not justify its said Order there, But although the respondent No. 2 got
his relief but the Labour Court being without jurisdiction, its judgment and
Order is of no legal effect. On the prayer of the BADC, we have already hold so
as prayed for. But since the respondent No 2 is not the petitioner, the
question is whether we can further declare about the legality of the Order
dated 23.1.1991 which was the sole question before the Labour Court. This
question is important because this was not prayed for by the BADC the
petitioner, in this writ petition but it was prayed for on behalf of the
respondent No.2 before the Labour Court and this writ petition original from
the said judgment and Order of the Labour Court which considered the legality
of the said order. In effect the legality of the order dated 23.1.1991 passed
by the BADC technically is still before this court and cannot be bidden and
shadowed by the mere fact that the present Rule was not issued at the instance
of the respondent No. 2 but at the instance of the BADC whose order was under
challenge at the instance of the actual aggrieved person, the respondent No. 2
in the IRO case. The jurisdiction of the Labour Court was raised only as a
matter of procedure as a collateral question and that also admittedly at a much
belated stage — Besides, as such the office order No wbt
cOt/tmP/cOkv-39/90-91/1981/10 dated 23- 1-1991 (Annexure-E) is declared illegal
and is of no legal effect and the period from 2.6.1976 to 11.5.1988 be treated
as his period of duty and he is entitled to the salary and other service
benefits as admissible under the relevant Rules and Regulations for the said
period.
BADC Vs. Labour
Court & Ors15 BLT (HCD)76
Article-102
Mistaken Identity
It
appears that one Abdul Mazid Howladar, son of Hujjat Ali Howladar, village-
Eksherpara, Union Parishad Gaba Ram Chandrapur, Profession Haluti was shown at
Serial No.72 and one Abdul Matin Howladar, son of Hujjat Ali, Profession
Service of the self same village and Union Parishad was shown at Serial No.140.
According to Mrs. Sathika Hossain, the petitioner is Abdul Matin Howladar whose
serial number is 140 in the Annexure-D and Abdul Mazid Howladar, whose name appears at serial No.72, may be the
convict in the case.-Held: we have no hesitation in holding that the petitioner
is not one of the convicts in the Sessions Case no.28 of 1984 of the Court of
Assistant Sessions Judge, Jhalakati, and that he is being held in Jail without
lawful authority and in an unlawful manner.
Matin Miah Vs Govt.
of Bangladesh & Ors. 13(HCD)328
Article —102
Whether the question
of jurisdiction must be raised at the earlier opportunity
The
respondent No.2, was in employee under the BADC, who instituted a Labour case
before the Labour Court challenging the order issued by the BADC dated on
23.1.1991 —the Labour court, by his judgment and order allowed the Case on
contest in Part —the BADC is not a commercial establishment and since it is not
a commercial establishment, its employees do not come within the definition of
worker. as such; the IRO case, filed by the respondent No. 2 before the Labour
Court is not maintainable and the decision of the labour Court in the said IRO
case, is illegal being coram non judice as contended by the Petitioner’s
counsel —Held, we cannot presume or confer a jurisdiction upon the Labour Court
which it does not process under the law, though it was so established at a very
belated stage, still the judgment and order passed in IRO case was without
jurisdiction.
BADC Vs. Labour
Court & Ors 15 BLT (HCD)76
Article- 102
Rupali
Bank Ltd. Instituted title suit against the defendant petitioner and the suit
was decreed in preliminary form on contest on 1.6.97 and the preliminary decree
was sealed and signed on the same date. On 24.4.2003, the decree holder bank
made an application for an Order making the preliminary decree dated 1.6.97
final. The application was allowed by the Artha Rin Adalat and on the said date
the final decree was sealed and signed —Held: In a writ of certiorari writ
cannot issue to correct the Mistake or wrong done in exercise of the power under
the C.P.Code but in instance case the Artha Rin Adalat passed the impugned
order and exercised its power going beyond the statutory period of limitation
which cannot be otherwise excluded and as such the order is without
jurisdiction and is liable to be struck down.
M/s. Brick Linkers
Ltd & Anr. Vs. Joint District Judge & Ors 15 BLT (HCD) 99
Article —102
The Respondent
Bank as plaintiff instituted Artha Rin Case and the defendant petitioner filed
written statement and thereafter filed an application under section 21 of the
Artha Rin Adalat Ain, 2003 and the said application was rejected on the plea
that there is no unconditional consent from the plaintiff bank —Held: Since the
whole purpose of enacting the law is for recovery of loan and as such the Artha
Rin Adalat Ain, 2003 has been incorporated upon consolidating the existing law
of 1990, which was firstly enacted in 1990 and since under the existing law it
appeared that by filing suits or execution cases money could be recovered but
not in a short span of time, the legislature has incorporated the provision of
chapter 5 in the new Ain for easy recovery of money within a short time and as
such alternative dispute resolution has been incorporated in the new Ain for
the purpose of realizing money without spending much time and money in
litigations. As such chapter 5 has been incorporated in the present Ain allowing
the parties to ask for amicable settlement under section 22 and /or under
section 21 the Adalat can invoke it if it is deemed fit and proper on perusal
of the pleadings of both the parties —The order which has been complained of is
hereby declared to be illegal, without lawful authority and is of no legal
effect.
M/S Rana Apparels
Ltd. & Anr Vs. Govt. of Bangladesh & Ors 15 BLT (HCD) 104
Article- 102
Principle of
legitimate expectation
The
cancellation of the work-order dated 27.5.2004 (Annexure P-I) issued by the
respondent no.5, were irrational and perverse and also in violation of the
legitimate expectation of the petitioner as he was debarred from supplying the
‘Dalilpatra’ for distribution in 2317 selected schools, as such, illegal.
Golam Mustafa Vs.
Bangladesh & Ors 15 BLT (HCD)128
Article- 102
Whether Public
interest, to defeat the claim of legitimate expectation.
We are
pleased to see that the Minister for Education himself and both the Ministry of
Education and the Ministry of information, Government of Bangladesh, felt in
the same way in issuing the work-order for supplying 2317 sets of ‘Dalilpatra’
to the selected schools. This was definitely a good beginning to the right
direction. There cannot be any better public interest than this. We have all praise
for them. But surprisingly the respondent nos. 1, 5 and 6 suddenly cancelled
the work-order without any rhyme or reason. This was certainly arbitrary,
unfair and unreasonable.
Golam Mustafa Vs.
Bangladesh & Ors 15 BLT (HCD)128
Article- 102
Apparently,
this decision to cancel the work- order was arbitrary, unfair and unreasonable.
The petitioner, although may not have strict legal rights against any of the
respondents but has a legitimate expectation to supply 2317 sets of
‘Dalilpatra’ to the respondent no. 6, as such, has a right to challenge the
said decision.
Golam Mustafa Vs.
Bangladesh & Ors 15 BLT (HCD)128
Article —102
The
petitioner was a Sergeant of police but without showing any reason what so ever
he was charged under the special provisions of Ordinance instead of PRB. It
appears that the provision of special provisions of Ordinance are
discriminatory and comparatively harsh in nature. In the absence of guideline
as to which case be tried under PRB and which under the Ordinance 1976, the
authority enjoys arbitrary power in violation of the nondiscriminatory
provision of the Constitution. The Respondents preferred harsh and
discriminatory procedure of the Ordinance of 1976 instead of PRB in drawing up
departmental proceeding against the petitioner as such the right to equal
protection of law guaranteed under Article 127 of the Constitution was
deliberately violated.
Md. Amirul Islam Vs.
Bangladesh & Ors 15BLT(HCD)197
Article —102
The
petitioner was a sergeant of Police —the Commissioner-in-charge of police
passed the order of discharged —It appears from the Police Officers (Special
Provisions) Ordinance 1976 (Annexure-‘L’) that for conducting departmental
proceeding against sub-Inspector of Police or sergeant, the appointing
authority is DIG or Metropolitan Police Commissioner or Additional Police
Commissioner, while I.G.P. or Additional I.G.P. is the appellate authority. It
is evident from the amended provisions of the Ordinance 1976 that the
Respondent No.4 Additional Commissioner of Police K.M.P. Khulna is the
authorized officer by law to issue the impugned order (Annexure-’F’) as such
the questions of lack of jurisdiction is not sustainable in law.
Md. Amirul Islam Vs.
Bangladesh & Ors 15 BLT (HCD)197
Article- 102
Subsequent
events —during pendency of the rules, the services of the Petitioners were
terminated, —rules have not become in fructuous due to the passing of the
orders of termination of the petitioners, rather this court not only can but it
is Imperative on our part to consider the legality of the said orders of
termination passed during the pendency of the present Rules —Since both Selina
Sultana and Sufia Khatun, are within the teaching staffing pattern of the
College, their orders of termination even within the. ambit of the decision
dated 6.6.2004 of the Governing body, are illegal and is so declared. They are
still very much in the service of Dhaka Mohila College.
Md. Abu Nasar
Patwary & Ors Vs. Govt. of Bangladesh & Ors 15 BLT (HCD)204
Article —102
Impugned
judgment and decree passed under section 13(1) of the Artha Rin Adalat Ain-Held:
if the Adalat passes any order which is wholly without jurisdiction, not in
excess of jurisdiction, then despite of the fact that the law provided forum
for appeal, the petitioner cannot be debarred from availing the jurisdiction
under Article 102 of the constitution.
Md. Arfan Uddin
Akand Adalat & Ors & Ors Vs. Artha Rin 15 BLT (HCD)343
অনুচ্ছেদ-১০২
Nature of declaratory relief-
মুক্তিযুদ্ধ
এবং মুক্তিযোদ্ধাদের ইতিহাস- মুক্তিযোদ্ধাদের প্রতি জাতি হিসাবে আমাদের যে, অনীহা
ও অবহেলা তাহা মুক্তিযুদ্ধ ও মুক্তিযোদ্ধাদের আত্মত্যাগের ইতিহাস সম্বন্ধে আমাদের
অজ্ঞতা ও নির্লিপ্ততাই দায়ী। কিন্তু জাতি হিসাবে আমাদের গর্ব এই মুক্তিযুদ্ধ
সম্বন্ধে নূতন প্রজন্মকে অবহিত করা জাতীয় স্বার্থে প্রয়োজন। এই কারণে মুক্তিযুদ্ধ
এবং মুক্তিযোদ্ধাদের সঠিক ইতিহাস বাংলা মাধ্যম, ইংরেজী মাধ্যম ও সকল ধরনের
মাদরাসায় মাধ্যমিক বা সমপর্যায়ভুক্ত সকল শিক্ষা প্রতিষ্ঠানে ১ম শ্রেণী হইতে ১০ম
শ্রেণী বা সমপর্যায়ভুক্ত সকল শ্রেণীতে এবং মাধ্যমিক বা সমপর্যায়ভুক্ত সকল পরীক্ষায়
আবশ্যিক পাঠ্য হিসাবে অন্তর্ভুক্ত করিবার জন্য সরকারের সংশ্লিষ্ট শিক্ষা
মন্ত্রনালয়কে আহ্বান জানান হইল যাহাতে মুক্তিযুদ্ধের চেতনার আদর্শে, আলোকে ও
দর্পণে বাঙালী জাতি যেন আবারও নিজেকে চিনিতে পারে ও মূল্যায়ন করিতে পারে এবং
বিশ্বে একটি আলোকিত জাতি হিসাবে প্রতিষ্ঠিত হইতে পারে। – এই আদালত মুক্তিযোদ্ধাদের
প্রতি জাতি হিসাবে আমাদের যে, অনীহা ও অবহেলা তাহা মুক্তিযুদ্ধ ও মুক্তিযোদ্ধাদের
আত্মত্যাগের ইতিহাস সম্বন্ধে আমাদের অজ্ঞতা ও নির্লিপ্ততাই দায়ী। কিন্তু জাতি
হিসাবে আমাদের গর্ব এই মুক্তিযুদ্ধ সম্বন্ধে নূতন প্রজন্মকে অবহিত করা জাতীয় স্বার্থকে
প্রয়োজন। এই কারণে মুক্তিযুদ্ধ এবং মুক্তিযোদ্ধাদের সঠিক ইতিহাস বাংলা মাধ্যম,
ইংরেজী মাধ্যম ও সকল ধরনের মাদরাসায় মাধ্যমিক বা সমপর্যায়ভুক্ত সকল শিক্ষা
প্রতিষ্ঠানে ১ম শ্রেণী হইতে ১০ম শ্রেণী বা সমপর্যায়ভুক্ত সকল শ্রেণীতে এবং
মাধ্যমিক বা সমপর্যায়ভুক্ত সকল পরীক্ষায় আবশ্যিক পাঠ্য হিসাবে অন্তর্ভুক্ত করিবার
জন্য সরকারের সংশ্লিষ্ট শিক্ষা মন্ত্রনালয়কে আহ্বান জানান হইল যাহাতে
মুক্তিযুদ্ধের চেতনার আদর্শে, আলোকে ও দর্পণে বাঙালী জাতি যেন আবারও নিজেকে চিনিতে
পারে ও মূল্যায়ন করিতে পারে এবং বিশ্বে একটি আলোকিত জাতি হিসাবে প্রতিষ্ঠিত হইতে
পারে।
Mokter Hossain Vs.
Govt. of Bangladesh & Ors 15 BLT (HCD)349
Article- 102
Natural Justice —It appears that the Petitioners when they
joined their services were working as contingent staff and were not Government
servants. Subsequently, however by Memos dated 10.4.1989 and 25.4.1989 the
Government regularized their services with effect from 1.3.1989 as Government
servants —Held: when the Petitioners were made permanent servant of the
Republic by converting their status as regular they were entitled to a minimum
show cause notice before issuance of the impugned Memo removing them from their
posts. The absence of such prior show cause notice is also a violation of the
rules of natural justice.
Md. Kazimuddin &
Ors Vs. Govt. of Bangladesh & Ors15 BLT (HCD)428
Article- 102
Maintainable —It appears that the Petitioners when they
joined their services were working as contingent staff and were not Government
servants. Subsequently, however by Memos dated 10.4.1989 and 25.4.1989 the
Government regularized their services with effect from 1.3.1989 as Government
servants —The Respondents by the impugned orders have said that their
appointments/ absorption to the permanent post of the Government services were
considered and rejected and as such they are no longer in their services. This
amounts to saying that the Petitioners were not only removed from their
services but also after having served as permanent servants of the Republic for
10 years their services have not been regularized and that they are not entitled
to any benefits for the said tenure of service after their removal. In other
words, their services in the Republic are not been regularized. In such a
situation if they went to the Administrative Tribunal to agitate their
grievances, their case will not be maintainable for being barred by limitation
and they will have no other option but to come to this court under Article 102
of the Constitution of the Peoples Republic of Bangladesh. They have done
precisely that and as such, these Writ Petitions are maintainable.
Md. Kazimuddin
Bangladesh & Ors& Ors Vs. Govt. of 15 BLT (HCD)428
Article-102
To protect the
rights of the citizen of the country
—Held:
we feel it necessary to direct Respondent Nos.l to
3 to take steps not to impose bar fetters upon any of the prisoners except with
strict adherence to the mandate of law and the rules framed there under and
under the facts warranted under Prisons Act, and the Jail Code including those
in the prisoners Act, and the Jail authority must be directed to take special
care in cases of Misuse of laws and rules relevant for the purpose and in the
event of violation of any of the laws or rules relevant for the purpose of
imposition of bar fetters upon a prisoner by any one, should strictly be taken
to task in accordance with law.
Ain-O-Salish Kendro
(ASK) Vs. Govt. of Bangladesh & Ors 15 BLT (HCD)448
Article- 102
Lease
agreement —Enforcement of contract. A lease agreement was signed between the
respondent No.3 and the writ petitioner for a period of three years, effective
from 17.2.2004. Subsequently on 15.06.2004 a letter was served upon the
Petitioner stating that he changed some of the basic structures of the premises
by violating the terms of the agreement and on 12.07.2004, the respondent No.3,
cancelled the lease agreement —Held: we hold that a simple contractual right
cannot be enforced against a public functionary. Even if the decision of the
public functionary is wrong, such a decision cannot be challenged in a writ
petition, as no legal right of the petitioner has been impaired or infringed by
such decision of the authority.
Syed Arif Niazi Vs.
Govt. of Bangladesh & Ors 15 BLT (HCD)462
Article-102
Doctrine of
legitimate expectation
The word
“legitimate expectation” was first coined in 1969 by Lord Denning in the case
of Schmidth. The legitimate expectation of a person can be enforced only when
he has got a legal right. In the instant case, the lease agreement between the
petitioner and the respondents is a mere tenancy agreement which is simple in
nature. The same has been cancelled by complying the terms of the agreement.
Meanwhile, the period of lease has already been expired. So, the petitioner has
no legal right, to continue with lease agreement. —We are of the view, that the
impugned order (Annexure-J) suffers from no illegality and impropriety, which
calls for no interference by this Court.
Syed Arif Niazi Vs.
Govt. of Bangladesh & Ors 15 BLT (HCD)462
Article- 102
Writ of Certiorari
—Scope of
The
scope of certiorari applying which the High Court Division made the Rule
absolute is very limited and moreover the High Court Division did not advert to
the finding of the Court of Settlement regarding absence of original documents
and the absence of Md. Shafi in the Bangladesh after 25th
March 1971. So the judgment and order passed by the
High Court Division cannot be sustained.
Govt. of Bangladesh
Vs. Md. Yakub Mia & Anr 16BLT(AD)60
Article-102
The High
Court Division in exercise of jurisdiction of judicial review under Article 102
of the Constitution does not exercise a revisional jurisdiction and can be
exercised only in cases brought before it in case and controversy with
appropriate pleadings making a foundation for the relief and with specific
prayers and not by assuming hypothetical questions and answering them as an
academic issue not necessarily required for disposal of the case.
Govt. of Bangladesh
& Anr Vs. Sheikh Hasina & Anr. 16 BLT (AD)233
Article-102
Order of transfer of a school teacher of
government Primary School under Memo dated 5.6.2005
Writ
petitioner challenging the order of transfer vide Memo dated 5.7.05 —In the
Memo dated 9.11.96, as amended by Memo dated 19.5.2002, it was provided that a
school teacher of government primary school, if necessary, can only be transferred , within the same
Upazila and in the “অফিস আদেশ” circualted by Circular dated 5.6.2005 it was also
provided the “সরকারী প্রাথমিক বিদ্যালয়ের প্রধান শিক্ষকের শূন্য পদসমূহ যথাযথভাবে পূরণের সুবিধার্থে আগামী ০৮ জুন ২০০৫ তারিখ থেকে পরবর্তী নির্দেশ না দেয়া পর্যন্ত সরকারী প্রাথমিক বিদ্যালয়ের প্রধান শিক্ষকদের আন্তঃবিভাগ, আন্তঃজেলা ও আন্তঃউপজেলা বদলী (রাঙ্গামাটি, খাগড়াছড়ি ও বান্দরবান জেলা ব্যতীত) এতদ্বারা স্থগিত কতা হলো। উল্লেখ্য যে, ৩০ জুন ২০০৫ তারিখ অধিদপ্তরে প্রাপ্ত তথ্য অনুযায়ী প্রধান শিক্ষকের বিদ্যমান শূন্য পদসমূহ করা যাবেনা। শূন্য পদের তারতম্যের কারণে কোন জটিলতা সৃষ্টি হলে সংশ্লিষ্ট কর্মকর্তা দায়ী থাকবেন।” but by the above impugned Memo
dated 5.7.2005 the, petitioner, who was the Head Master of Sultan-Al—Nahiyan
Government Primary School, Police Station, Double Mooring, District Chittagong,
was transferred to Mogdhora Golbari Government Primary School, Police Station
Swamdip, District Chittagong —High Court Division summarily dismissed the writ
petition holding that the relief if any of the petitioner I lies within the jurisdiction
of the Administrative Tribunal and not before the
High Court Division in writ Jurisdiction – Held: we are of the view that there
is no illegality or infirmity in the decision of the High Court Division so as
to call for any interference.
Premesh Chandra Das
Vs. Govt. of Bangladesh & Ors 16 BLT (AD)222
Article-102
Experte interim
order
Held: we
are of the view that the order of the High Court Division rejecting the prayer
of the writ-Respondent No.2 for vacating the ex-parte interim order staying the
operation of the impugned Memo and the direction given at the time of issuance
of the Rule to pay benefits appears to be not legally sound since relief that
has been granted to the writ- petitioner by the High Court Division in making
direction to the writ-Respondents to pay the LPR benefit etc. is more or less
giving substantial part of the reliefs while adjudication of the substantive
matter still awaiting.
Govt. of Bangladesh Vs. S.M. Ali Imam & Ors 16 BLT (AD)353
Article-102
Simply
because the Government’s letter dated 24.5.2001 addressed to Rajuk for
issuance of necessary certificate and construction plan has been cancelled by
the impugned Memo, the petitioner is not prevented from pursuing Rajuk or any
other Government authority for getting his Project approved. The implication of
Annexure K simply is that Annexure J which was issued earlier to pass the said
plan on priority basis, has been cancelled. Thus as stated earlier since
Annexure J did not create any specific right in favour of the Petitioner, in
our opinion there was no reason to give the petitioner any prior show cause
notice and there has been no breach of the principles of natural justice in
this regard.
Mst. Monowara Begum
Vs. Govt of Bangladesh & Ors 16 BLT (HCD) 193
Article- 102
A direction
to handover the Possession of a claimed property যেহেতু
পুলিশ কর্তৃপক্ষ দরখাস্তকারী মোছাঃ মনোয়ারা বেগম এর নিকট হইতে তর্কিত সম্পত্তিটির
দখল পুলিশি হেফাজতে গ্রহণ করিয়াছিল সেইহেতু প্রতিবাদীগণ উক্ত সম্পত্তিটির দখল
পুনরায় দরখাস্তকারীর বরাবরে হস্তান্তর করিবার নির্দেশ প্রধান করা হইল।
Mst. Monowara Begum
Vs. I. G. P & Ors 16 BLT (HCD) 199
অনুচ্ছেদ-১০২
এই মোকদ্দমায় প্রতীয়মান হয় যে মামলার তদন্তের
সময় আসামীর প্রকৃত পরিচিতি নিরূপণ করিবার কোন সুষ্ঠ পদক্ষেপ গ্রহণ করা হয় নাই
ফলশ্রুতিতে একজন নিরাপরাধ ব্যক্তিকে অন্যায়ভাবে সাজা ভোগ করিতে হইতেছে এবং তাহার
বিদেশের চাকুরী নষ্ট হইয়াছে এবং দেশে তাহার সামাজিক সম্মান সম্পূর্ণভাবে বিনষ্ট
হয়। যেহেতু সংশ্লিষ্ট ব্যক্তি প্রকৃত আসামী নহে কাজেই উক্ত মোঃ আলম, পিতা-মৃত
জাকির হোসেন, সাং- চাকবইঠা, থানা-উখিয়া, জেলা-কক্সবাজারকে যোশর কেন্দ্রীয় কারাগার
হইতে অবিলম্বে মুক্তি প্রদানের জন্য প্রতিবাদীগণকে নির্দেশ প্রদান করা
হইতেছে।
Md. Rassel Uddin Vs
Govt of Bangladesh & Ors 16 BLT (HCD)459
Article —102
The
identity of the petitioner in respect of eligibility in freedom fighter’s
quota, in 24th BCS Examination, 2002, in our view, is still a disputed question
of facts. —We are of the view that the writ petition is not maintainable and
the action of the respondents by excluding the recommendation of the
petitioner, for appointment to the BCS (Admn) Cadre by the PSC suffers from no
infirmity or illegally, which calls for no interference by this Court.
Md. Nazrul Islam Vs
Govt. of Bangladesh & Ors 16 BLT (HCD)258
Articles-102 (1) and (2)
(a) “any person aggrieved”
Per A.
T. M. Afzal, CJ. The appellant is the Secretary General of the Bangladesh
Environmental Lawyers Association (BELA) and the said organisation is working
in the field of environment and ecology. In the writ petition the activities of
FAP, FAP-20 and the FPCO have been impugned on the ground, inter alia, that the
said activities would adversely affect more than a million human lives and
natural resources and the natural habitat of man and other flora and fauna and
that they aroused wide attention for being allegedly anti-environment and
anti-people project—Held I am of the view that a national organization like the
appellant, which claims to have studied and made research on the disputed
project, can and should be attributed a threshold standing as having sufficient
interest in the matter, and thereby regarded as a person aggrieved to maintain
the writ petition subject to the objection or
objections as may be raised by the respondents if a Rule is issued ultimately.
Dr. Mohiuddin
Farooque Vs. Bangladesh 5BLT (AD)-25
Per Mustafa Kamal. J:
As to
the apprehension of flood gate, the people as a whole is no doubt a flood and
the constitution is the sluice-gate through which the people controls its own
entry, our courts will be prudent enough to recognise the people when the
people appears through a people. Taking up the peoples causes at the expense of
his own is a rare phenomenon, not a common place occurrence. We
hold therefore that the association appellant was wrongly held by the High
Court Division not to be a “person aggrieved” in the facts and circumstances of
the case and we hold further that the appellant is “any person aggrieved”
within the meaning of both Article 102 (1) and Article 102 (2) (a) of the
Constitution.
Dr Mohiuddin
Farooque Vs. Bangladesh 5BLT (AD)-25
Per Latifur Rahman, J:
I hold
that a person approaching the Court for redress of a public wrong or public
injury has sufficient interest (not a personal interest) in the proceedings and
is acting bonafide and not for his personal gain or private profits, without
any political motivation or other oblique consideration has locus standi to
move the High Court Division under Article 102 of the Constitution of
Bangladesh.
Dr. Mohiuddin
Farooque Vs. Bangladesh 5BLT (AD)-25
Per Bimalendu Bikash Roy Choudhury, J:– In the facts of the statements in the writ
petition BELA is concerned with the protection of the people of this country
from the ill effects of environmental hazards and ecological imbalance. It has
genuine interest in seeing that the law is enforced and the people likely to be
affected by the proposed project are saved. This interest is sufficient enough
to bring the appellant within the meaning of the expression “person aggrieved”.
The appellant should be given locus standi to maintain the writ petition on
their behalf.
Dr. Mohiuddin
Farooque Vs. Bangladesh 5BLT (AD)-25
Article-102 (1)(2)
Gazette
Notification issued by the Chief ,Election Commissioner dated 15.10.1986,
M.L.O. No. 1 of 1985 (C.M.L.A. No. 1 of 1985) — Articles 28, 29, 30, 34 and 41
of the Constitution of People’s Republic of Bangladesh — Petitioner challenged
legality of the election held in 1986 to the post of President Lt. Gen (Retd.)
H.M. Ershad — Writ Petition No. 344 of 1987 was rejected on the ground that the
election to the office of the President was given protection by the Seventh
Amendment to the Constitution of Bangladesh.
Mr. Yar Ahmed Vs
Hussain Mohammad Ershad 1BLT (HCD)-12
(b)
Interpretation of the Constitution Seventh Amendment (Act No. 1 of 1986). All
actions of the Govt. to 11-11-86 cannot be questioned in any court of law
including the Supreme Court due to the blatant protection given by the Seventh
Amendment.
Mr. Yar Ahmed Vs
Hussain Mohammad Ershad 1BLT (HCD)-12
Article-102(1)(2)(a)(i)(ii) read with Trade Organisations
Ordinance, 1994
Rule-3 Sub-Rule-8
There is
violation of Rule 3 Sub-rule 8 of Trade Organisations Ordinance, 1994, i.e. non
disposal of the writ petitioner’s application within time and not giving an
opportunity of hearing to the petitioner and therefore there is violation of
the principle of natural justice and that the writ petitioner has not been
communicated till date about the fate of his application officially, for which
he could not take recourse to appeal as provided by Rule 3 Sub-Rule 10 of
licence in favour of respondent No. 5 indicates rejection of the application of
the writ petitioner but non communication of such rejection has prejudiced the
petitioner inasmuch as it could not prefer appeal of registration and issuance
of licence in favour of Respondent No 5 cannot be said to be bona fide or is in accordance with the provisions of
law and there is violation of principle of natural justice.
Rice Mill Owners
Association Vs. Govt. of Bangladesh & Ors. 10 BLT (HCD)-215
Article- 102( 1)(2)(a)
Purpose
of Monitoring —environment and ecology of Bangladesh are being continuously
endangered and threatened by various activities originating from private and
public sources.
Held: In the prevailing situation in our view ad-interim
directions are necessary.
Bangladesh Legal Aid
& Service Trust & Ors. Vs. Govt. of Bangladesh & Ors. 10BLT
(HCD)-297
Article-102 (1) (2) (a) (ii)
When
Hoque Soap 786 Laundry Soap cannot be advertised in the abbreviation of the
words Bismillahir Rahman nir-Rahim—-The words ‘Bismillahir Rahman-nur Rahim’
should not be read into as anti-Islamic or anti religious—There is no
illegality in the use of symbol 786 in the Hoque Laundry Soap—It cannot be
prohibited in the advertisement.
Use of a
mark “Allah” in the shoes produced locally by Bata created an adverse reaction
in the minds of the Muslim. But the Hoque Laundry Soap and Haque Batteries are
not shoes to offend religious feelings when cleanness by soap is a part of
faith. The use of the figure 786 cannot be read as “Bismillahir
Rahman-nur-Rahim” by all and even if it means no, the writing of 786 anywhere
in laundry soap or in the batteries is not anti-religious or anti-Islamic and
as such use of the figure 786 cannot he prohibited in the advertisement.
Hoque and Co. Ltd Vs
Ministry of Information 1BLT (HCD)-49
Article- 102(2)
In the
instant case the constraint of relinquishing the office of Mutawalli prior to
bringing an appeal is non relaxable. Therefore the High Court Division. .as
wrong in summarily rejecting the writ petition merely because the appellant had
an alternative remedy under sub-section(2) of section 32 of the Waqfs
Ordinance, 1962.
Tafizul Huq Sarker
Vs. Bangladesh & Ors. 6BLT (AD)-285
Article —102(2)
Judgment
and decree passed by the Artha Rin Adalat, The law is settled now that no petition
under Article 102(2) of the Constitution lies impugning the judgment and decree
passed by the Artha Rin Adalat in a case filed by the financial institution for
realization of its loan amount.
Azad Shahnewaz Vs.
Artha Rin Adalat, Dinajpur & Ors. 15 BLT (AD)77
Article 102(2)
Maintainable-
alternative remedy by way of appeal under a statute will not be a bar to a Writ
Petition under Article 102(2) of the Constitution if there is non-relaxable
precondition for brining the Appeal.
Mongal Paita
Perkhiddah College Vs. Govt. of Bangladesh 15 BLT (HCD)481
Article —102(2)(a)
Not Maintainable
In the
present Case admittedly the impugned order of dismissal(Annexure-J) passed by
the respondent-No.2 Managing Director, Prime Bank Ltd. is not a person
performing any functions in connection with the affairs of the Republic or of a
local authority. By now we have got a clear view of the law as it stands today
that under Article 102 of the Constitution writ lies only against a person
performing functions in connection with the affairs of the Republic or local
authority.
Kazi Saiful Haque Vs
Prime Bank Limited & Ors 16 BLT (HCD)253
Article – 102 (2) (a) (I)
Writ of Mandamus — The petitioner is the owner of the house in
question and it was notified to be an abandoned property. He filed an
application before the Court of Settlement praying for exclusing of the said
house from the list of abandoned property and for restoration of possession of
the same the Court of Settlement after taking evidence and hearing both parties,
allowed the application and directed the respondent to restore possession of
the house to her— Held: It appears that the respondent failed to comply with
the order passed on 19. 9. 1988 directing the respondent to deliver possession
at once and until now the defendant has not take any step to implement the said
order which it is required by law to do — Rule is made absolute.
M. Khatrunnessa Vs.
Bangladesh 4BLT (HCD)-128
Article – 102 (2)(a)(i)
Re-examine the
answer script of the writ petitioner
Writ
petitioner’s application for reexamination of his answer script was recommended
by the Chairman of the Department of Law – the High Court Division has
committed no error in making direction to the University for making arrangement
for re-examination of the answer script (the 13th paper-Administrative Law) of
the writ-petitioner.
University of
Rajshahi. Vs. Md. Abdul Manna Bhuiyan & Ors. 14 BLT (AD)115
Article-102 (2) (a) (1) and Articles-27 and 29
(a) Writ
of Mandamus-copyists Extra Moharar Nakal Nabis-appointments to 475 Posts —
Seniority suppression — Rule 310 (a) —Foundation of claim-department
instructions-S. 69 of the Registration Act Statutory Rules-Authority of
Inspector General of Registration Rule-making power vested in I.G.R. creation
of new posts for appointment is not a subject within the Rulemaking power-writ
fails.
Md. Nurul Islam, and
another Vs Bangladesh 1BLT (HCD)-4
(b) It
is a well settled principle of law that in order to get a rule of mandamus the
petitioners must show that their claim is rooted in a statute or statutory
rule.
Md. Nurul Islam
& another Vs Bangladesh 1BLT (HCD)-4
(c) No
exclusive right to the appointment in the newly created posts of muharrars-1
G.R. instruction in paragraph 310 means filling up the new posts on the basis
of selection from the T.C. muharrars.
Md. Nurul Islam
& another Vs Bangladesh 1BLT (HCD)-4
(d)
Natural justice the precise purpose of invoking the principles of natural
justice is to supplement the statute and not to supplant it.
Md. Nurul Islam
& another Vs Bangladesh 1BLT (HCD)-4
(e) Writ
petition is in a representative form All those who will be affected by the writ
petition must be made parties to the petition — Rule Nisi fails. (1968 SCMR 995
relied on).
Md. Nurul Islam
& another Vs Bangladesh 1BLT (HCD)-4
Article-102(2)(a)(i) read with Code of
Criminal Procedure, 1898 Section-154, 156 and 157
Report published in
a newspaper
A
direction can be given to the Director General of Bureau of Anti Corruption for
taking steps for holding investigation if it is found that there is an
information of commission of a cognizable offence, but no such direction can be
given on the basis of a report published in a newspaper containing allegation
of commission of cognizable offence because the above officer is not legally
bound to hold investigation on the basis of such a report. Under Article
l02(2)(a)(i) of the Constitution, the high Court Division may make an order
directing a person performing any function in connection with the affairs of
the Republic to do that which he is required by law to do. We have found that
the Director General, Bureau of Anti-Corruption is not required under any law
to ask his officers to start investigation or to hold investigation on the
basis of any report published in a newspaper, because such report is not an
information within meaning of Sections- 154, 156 and 157 of the Code.
Mohammad Hosain
Advocate Vs. Quamrul Islam Siddique & Ors. 10 BLT (HCD)-191
Article- 102(2)(a)(ii)
Writ of Certiorari
This
writ lies only against the order of public authority. The object of certiorari
is to prevent usurpation of jurisdiction by inferior tribunal, but it cannot
issue as a cloak of appeal in disguise, Certiorari should issue as of right
only for such applicant as has suffered an infraction of personal right.
S. N. Goswami &
Ors. Vs Govt. of Bangladesh 11 BLT (HCD)-213
Article- 102(2)(a)(ii)
Whether after
release of a detenu, from detention an application be filed by the detenu
himself under Article 102(2)(a) (ii) of the Constitution for a declaration that
the order of detention should not be declared to have been made without lawful
authority and of no legal effect.
Held:
The learned Judges of the High Court Division on consideration of the grounds
of detention served on the detenu found that the grounds relate to non-payment
of loan taken by the company of which respondent No.1 was the Managing
Director. According to the learned Judges the main object of detention appeared
to be realisation of the loan which was not contemplated under section 3 of the
Special Powers Act and consequently the learned Judges found no nexus between
the order of detention and the grounds served. The learned Judges found that the
order of detention was passed without any lawful authority and is of no legal
effect. The learned Judges further found that respondent No. 1 was released
after executing some papers transferring his mill and after doing certain other
acts. The learned Judges held that the purported action of detaining respondent
No. 1 being not authorised by law respondent No. 1 was entitled to such a
declaration under Article 102(2) (a) (ii) of the Constitution. We also find
that in the facts and circumstances of the case, respondent No. 1 is entitled
to such a declaration as has been found by the learned Judges of the High Court
Division.
Govt. of Bangladesh
Vs. Begum Suriya Ashraf & Ors. 5BLT (AD)-213
Article— 102(2)(a)(ii)
The High
Court Division can only make a declaratory order and nothing more and unless it
is required by law to do it cannot direct any authority to do a particular
thing.
Bangladesh Vs.
Mahbubuddin Ahmed 6BLT (AD)-185
Article-102 (2)(a)(ii)
By the
lease deed that was executed in favour of the petitioner and that possession of
the fishery that was made over to the petition prior to approval of the bid the
petitioner did not acquire any right of any kind in the fishery in question his
contention of that action of the Divisional Commissioner violated vested right
of the petitioner is not a merited one.
Hazi Md. Bashiruddin
Vs. Govt. of Bangladesh 8BLT(HCD)-64
Article- 102(2)(a)(ii)
Second
show cause notice to an, employee to be meaningful has to be accompanied by a
copy of the inquiry report. It is not an idle formality.
Abul Kashem Sikder
Vs. Govt. of Bangladesh & Ors. 9 BLT (HCD)-180
Article- 102(2)(a)(ii)
Whether a circular
of the Government conferred vested right on the petitioner not to be
transferred within 3 years preceding to the date of his retirement.
Held: A
circular of the Government, which has not force of law —relied on 45 DLR(HCD)
39, 1981 BLD (AD) 103
Nur Mohammad Vs.
Ministry of Education & Ors. 9BLT (HCD)-290
Article-102(2)(a)(ii) read with Criminal
Amendment Law, 1958
Section-6
In the
instant case an Anti- Corruption Officer of now defunct ‘Bureau’ which is a
statutory authority and organ of the State lodged the First Information Report
against the petitioner and other within parameter of law alleging specific
offence under Section 409/418/109 of the Penal Code read with Section 5(2) of
the Prevention of Corruption Act-TI of 1947 which are schedule offences under,
Durnity Daman Commission Ain, 2004. On completion of investigation the
investigating officer submitted charge sheet against the petitioner and six
other and the case is now pending for trial before the Special Judge, Dhaka.
Under Section 6 of Criminal Amendment Law. 1958 the provision of Code of
Criminal Procedure, so for it is not inconsistent with the act is made
applicable to the proceedings of the case before Special Judge. As such
initiation of the case and continuation such trial of offences cannot be
declared to have been proceeded and continued without lawful authority by
invoking Article 55, 76, 145 of the Constitution. We are therefore of
considered opinion that the proceeding of the case of Special Case No.1 of 2003
and trial of the petitioner there under before the Special Judge is not held in
violation of aforesaid Articles of Constitution of the People’s Republic of
Bangladesh.
Sheikh Hasina Wazed
Vs Bangladesh & Ors 16 BLT (HCD)410
Article- 102 (2)(b)(i)
The District
Magistrate by his order detained the detenu under section 3 (2) of the Special
Powers Act, 1974 — the detention has been made out of personal grudge against
the detenu — The order of detention of the detenu is declared to be illegal and
without lawful authority.
Alhaj Abdur Rahman
Vs. Ministry of Home Affairs 4BLT (HCD)-78
Article-102 (2)(b)(i) read with Special Powers
Act, 1974 Section-2(f) read with section-8
In the
grounds of detention certain vague allegations about the activities of the
detenu have been made. It is not, therefore, a sustainable ground. Moreover it
is well settled that specific case cannot be used as the grounds of detention
and on the basis of such ground the order of detention invoking section 3 of
the Act cannot be sustained.
Mohammad Sayed Vs.
Govt. of Bangladesh 16 BLT (HCD)27
অনুচ্ছেদ ১০২(২) (খ) (অ) এবং ১৪১ গ (১)
জরুরী অবস্থা বলবৎ বাংলাদেশের সংবিধানের ১০২(২) (খ) অনুচ্ছেদ অনুসারে
দাখিলকৃত দরখাস্ত রক্ষণীয় কিনা?
কারাবন্দীর
আটকাদেশ challenge করিয়া দায়েরকৃত মামলা- যদিও রাষ্ট্রপতি তাহার সাংবিধানিক
ক্ষমতাবলে তাঁহার সন্তুষ্ট অন্সুসারে মানুষের মৌলিক অধিকার বলবৎ করন প্রক্রিয়া
স্থগিত করিতে পারেন কিন্তু সংশ্লিষ্ট আইন ও তৎসংক্রান্ত আদেশটির বৈধতা পরীক্ষা
নিরীক্ষা করিবার এখতিয়ার আদালতের অবশ্যই আছে এবং সুপ্রীম কোর্টের হাইকোর্ট বিভাগের
উপর ন্যস্ত সাংবিধানিকভাবে বিচার বিবেচনা করিতে বাধ্য ও দায়বদ্ধ। জরুরী অবস্থা
থাকাকালীন সময়েও হাইকোর্ট বিভাগের এই সাংবিধানিক দায়িত্ব ও কর্তব্য কখনই সীমিত করা
যাইবে না- অতএব, মানুষের স্বাধীনতার অধিকার প্রতিষ্ঠাতার জন্য দরখাস্তটি
অত্রাদালতে সংবিধানের ১০২(২)(খ)(অ) বিধানুসারে অবশ্যই বিচারযোগ্য। এবং উপরোক্ত
কারনাধীনে জরুরী অবস্থা জারী থাকা সত্ত্বেও কারাবন্দী আটকাদেশ Challenge
করিয়া দায়েরকৃত
বর্তমান মামলা রক্ষণীয়।
Mahbubur Rahman Vs. Bangladesh & Ors 16
BLT (HCD)62
Article- 102(2)(b)(ii)
Writ of quowarranto
Writ in
the nature of quo warranto is provided by Article 102 (2)(a) (ii) of the
constitution. Quo-warrantois regarded as an appropriate and adequate remedy to
determine right or title to a public officer and to outset one who has
unlawfully usurped or intruded to such public office, Proceeding in
quo-warranto against a public officer is for the purpose of deterring whether
he is entitled to hold the office and discharge it’s function and quo-warranto
affords a judicial inquiry into such matter.
S .N. Goswami &
Ors. Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-213
Article- 102 (2) (b) (ii)
Aggrieved
person—Any citizen of the State can maintain an application in the nature of
quo warrant to if he finds that anybody is holding any public office of
flagrant violation of constitutional provisions or in violation of any other
law. Be that as it may the petitioner is a practicing Advocate of this Court
and a conscious citizen of the country and he has every right to move this
Court under Article 102 of the Constitution if he finds that any person is
appointed to any post in violation of any provision of law or the Constitution.
Md. Idrisur Rahman
Vs. Md. Shahid Uddin Ahmed & Ors. 7BLT (HCD)-158
Article-102 (2) (h) (i)
Order of detention—Pendency of the Criminal Case and mention
thereof on the grounds of detention will not make the order of detention and
the detention of the detenu on the basis of the said order illegal unless the
said criminal case and facts constituting the criminal case and the pendency of
the criminal case itself is used as grounds of detention.
Nasima Begum. Vs.
Home Affairs & Ors. 3BLT (HCD)-140
Article-102(2) read with Article 117(1)
In the
instant case, no virus of the Rules has been challenged but certain decisions
taken at the meeting of the Standing Committee and the placement in the
gradation list and publication in the official gazette have been challenged by
way of an application under Article 102(2) of the Constitution. The right of
judicial review under Article 102(2) of the Constitution is neither a
fundamental right nor a guaranteed right. Similarly, the judicial review of an
administrative action is neither an all weather remedy nor a remedy for all
wrongs but is only available only when there is no other equally efficacious
remedy. The writ petitioners have challenged the impugned decisions alleged to
have infringed their fundamental right guaranteed under Articles 27 and 29 of
the Constitution, but in view of the provision of Article 117(2) of the
Constitution the Parliament has set up the Administrative Tribunal Act, 1980
for exercise of the functions enumerated in Article 117(1) i.e. by setting up
of the Administrative Tribunal to exercise the jurisdiction in respect of
matters relating to or arising out of the terms and conditions of persons in
the service of the republic etc. Article 117(2) provides that no Court shall
entertain any proceeding or make any order in respect of any matter falling
within the jurisdiction of such Tribunal. Section 4 of the Administrative
Tribunal Act 1980 specifically provides how the jurisdiction under Article 117(1)
is conferred to any other Court. In the case of 44 DLR (AD) 111 it has further
been cautioned that an aggrieved person may, out of desperation or just for
taking a sportive chance in the summary writ jurisdiction, allege-contravention
of some fundamental right which may ultimately turn out to be frivolous or
vexation or not even wrongly attracted in the case and asked to be a ground so
that great value of the right given under Article 102(1) is not frittered away
or Misused on the pretext of alternative remedy. The question of enforcement of
fundamental right is not available in the case as the question involved in the
impugned decisions are mere clarification of the rules for giving effect
thereto and as such the assumption of jurisdiction under Article 102(2) of the
Constitution for ventilating certain grievances regarding terms and conditions
of service of the writ petitioners pursuant to the impugned decisions has never
been contemplated. On our examination of the impugned order we do not think that
any question of fundamental right is involved in the case so as to allege that
the same cannot be extricated for exclusive consideration in the petition for
enforcement of fundamental rights.
Govt. of Bangladesh
& Ors. Vs. Md. Abdul Halim Miah & Ors. 13 BLT (AD)120
Article- 102(2) read with Artha Rin Adalat Ain,
2003
A judgment-
debtor is not competent to challenge the decree of the Artha Rin Adalat in writ
jurisdiction unless the judgment and decree of the Adalat is without
jurisdiction or in other words coram non judice or outcome of fraud committed
on Court and that also suffers from malafide.
Mir Motiur Rahman
Zihadi Vs. Artha Rin Adalat, Tangail & Anr 15 BLT (AD)267
Article 102(2) read with Janobal Kathamo
Nitimala, 1995
Whether Ministry of Education are required to
assign reason before cancellation of the monthly payment order (MPO)
Petitioner
is a recognized college and the principal of the college applied for inclusion
of the names of the teacher and staffs of the college in the list of Monthly Payment
Order but the Ministry of Education stopped the MPO because of unavoidable
reasons (5Tf It I’)-Held: If a right given to a person is taken away, reason
must be assigned therefore. Even administrative order is not immune from
assigning reason when a right is taken away.
Mongal Paita
Perkhiddah College Vs. Govt. of Bangladesh 15 BLT (HCD)481
Articles-102 and 104
The
court is of the opinion that the order of a Session Judge u/s 439A though may
be illegal, the jurisdiction of the High Court Division under Section 561 ACr.
P.C. cannot be invoked in view of sub-section (4) of Section 439 Cr. P. C. The
aggrieved party (i) he may make a writ 102 of the Constitution, has several
remedies, petition under Article\ (ii) the aggrieved party may move a special
leave petition to the Appellate Division against the order of the High Court
Division rejecting the application u/s 561A Cr. P. C. on the ground of lack of
jurisdiction and invoke the interference of the Appellate Division under
Article 104 of the Constitution, (iii) he may move a special leave petition to
the Appellate Division directly against the order of the Sessions Judge passed
u/s 439A of the Code construing the said order of the Sessions Judge to be an
order passed by the High Court Division u/s 439 of the Code.
Mafizuddin &
Others Vs Alauddin & another 2BLT (HCD)-53
The
Supreme Court under the Constitution has been given the responsibility to
interpret the constitutional provisions and the ordinary laws of land and to
see that none of the organs of the State including itself transgress into the
field preserved to another organ of the State.
Mafizuddin &
Others Vs Alauddin & another 2BLT (HCD)-53
Article-102 (4)
An interim order— The writ petitioner a businessman, imported
ten used motor cars from Japan opening letter of credit on 29.5.97 under
invoice of the same date. The cars arrived at Chittagong Port and the writ
petitioner submitted Bias at Entry on 24.6.97. The Customs Authority computed
and assessed duties and taxes thereon at the Yellow Book value of the cars and
imposed 40% to 60% supplementary duty and 2.5% development surcharge by
assessment order dated 1.7.97. The writ petitioner challenged the assessment in
the instant writ petition — Held The writ petitioner’s claim of assessment on
invoice value and not on Yellow Book value is a matter of interpretation and
not a question of jurisdiction to assess customs duties. So the writ petitioner
has to pay Yellow Book value before his goods are released. He may not pay at
the moment supplementary duties at the rate prescribed in the Finance Act,
1997, but he must pay at the rate prescribed in the Finance Act, 1996 before
release of his goods — The writ petitioner need not pay the development
surcharge before release of his goods. For protection of Government revenue,
the writ petitioner will furnish Bank Guarantee for the unrealised part of the
duties levied.
Commissioner of
Customs Vs. Giasuddin Chowdhury & Anr. 5BLT (AD)-274
Article-102 (5)
Whether the impugned
order of retirement not being an order of Military Court or Tribunal, can be
challenged as member of the Army Medical Corps in the High Court Division in
its writ jurisdiction, on ground of violation of Fundamental Right—the answer
is the negative.
The
appellant is not entitled to any remedy under Art 102 not because he was a
member of a disciplined force but because he was holding a service under the
pleasure of the President, unrestricted by any constitutional provision similar
to those of Article 135.
Colonel (Retd.) M.
H. Ali Vs. Bangladesh & Anr. 3BLT (AD)-76
A member
of the disciplined force can be no aggrieved person and can also move the High
Court Division for enforcement of a fundamental right subject to the provision
of Art. 45 of the Constitution. There are however, certain constitutional
limitations of the judicial review of an order passed of action force against
member of a disciplined force in the country. Reading clause (5) of Article 102,
Article 134 and Article 45 of the Constitution together it is viewed that as
member of any disciplined force of Bangladesh will be entitled to any remedy
under Article 102 if he is aggrieved (i) by any decision of a court of tribunal
established under law relating to the defence services unless that decision is
coram non judice or malafide, or (ii) by an order affecting his terms and
conditions of service passed by or by order of the President, or (iii) by any
violation of fundamental right resulting from application of a disciplinary law
for the purpose of ensuring the proper discharge of his duties or the
maintenance of discipline in the disciplined force.
Colonel (Retd.) M.
H. Ali Vs. Bangladesh & Anr. 3BLT (AD)-76
Article-102(9) (ii)
The
Petitioner is a registered trade organization, registered under the trade
Organization Ordinance, 1961 and the Companies Act— the petitioner association
is not a busy body or a inter-lopper inasmuch as the petitioner association
should be taken to have interest in the subject matter of the writ petition
which is real and filing of the present writ petition cannot be said that the
petitioner association was acting for a collateral purpose. The present writ
petition, in our view, is maintainable.
Chittagong Steel
Re-Rolling Mills Association Vs. Commissioner of Custom 12 BLT (HCD)214
Article-102 Read with Article-7
As to whether the
petitioner is aggrieved within the meaning of Article 102 of the Constitution.
Petitioner
is a citizen, voter and cast vote while the general election held in 1991 and
that upon successful completion of the said general election, the 300 members
have been elected as members of the Parliament but they do not represent any
particular constituency but they are the members of the House of Nation and—
apart from Article 7 of the Constitution the petitioner has got a locus standi
to file writ application by calling in question the conduct and actions of the
respondents for getting appropriate relief—every member of the country
including the petitioner has a right to
challenge such move in order to protect, prescribe and safeguard the Constitution.
Md. Anwar Hossain
Khan Vs. Speaker of Bangladesh & Ors. 3BLT (HCD)-76
Article-102 read with Bank Companies Act, 1991[As
amended]
Section-17
The High
Court Division simply does not have the jurisdiction to decide the validity of
notice under section 17 of the said act upon adjudication of documents of both
sides. The offending director may have a very good case to show that he has no
personal liability to the lender Bank at all. But it is not for the High Court
Division to determine or even hint at the offending director’s personal
liability or otherwise, except on admission, when the only list before it is
whether the notice under section 17 if legal or not. All other matters will go
to the Bangladesh Bank for determination.
Masudul Alam
Chowdhury Vs. Bangladesh Bank & Ors. 8BLT (AD)-13
Article-102 and Bangladesh Tariff Commission
Act, 1992 [Act No XLIII of 1992] and
The Evidence Act, 1872 Section-114(c)
We are
of the view that when a writ petition is filed on a bald assertion that the
high powered committee arbitrarily and fictitiously raised tariff value without
any objective material before it, the High Court Division ought not to rush
into issuing a Rule Nisi and stay payment of duties and taxes. It should take
notice under section 114(c) of the Evidence Act, 1872 and should start with the
presumption of regularity in official business. Initially, in the writ petition
itself, the writ petitioner must include some reliable and relevant materials
to show that between the last date of fixation of tariff value and the impugned
date of fixation of tariff value the international market prove of a particular
imported item has either gone down or has gone up to an extent which is
significantly higher or lower than the impugned fixation of tariff value, according
as the writ petitioner’s case is. If there are no such materials in the writ
petition itself the High Court Division should not entertain the petitioner and
dismiss it in limine.
M/S Kamal Trading
Vs. Commissioner of Customs & Ors 8BLT (AD)-108
Article-102 read with Members of Parliament
(Determination of Dispute) Act, 1981 [Act No. 1 of 1981]
Section-3
The
Speaker in section 3 of Act No. 1 of 1981 is not a constitutional functionary
when he refers the dispute to the Election Commission He is a statutory
functionary discharging a constitutional obligation. Being creature of a
statute, i.e. a subordinate legislation, he is very much amenable to the writ
jurisdiction of the High Court Division.
Secretary,
Parliament Secretariat Vs. Khondaker Deiwar Hossain & Ors 8BLT (AD)-215
Article-102 read with The Union Parishad
(Election) Rules,1983 Rule-70
When question of
fact are disputed
It
appears from judgment of the High Court Division that they directed for
publication of the result holding that there was no disturbance during the
polling disregarding the fact that counting of ballot papers is part of the
election process and any disturbance if taken place during the counting will
definitely affect the result of the election and it is the case of the appellant
that the Miscreants took away ballot papers and other materials which get
support from Annexure-E and F. When the election process is still on the High
Court Division ought not to have interfered in the matter on a disputed and
controversial fact and resolved them on mere affidavits. It appears that the
High Court Division while disposing of the Rule has exceeded the jurisdiction
and taken upon themselves the responsibility which according to the rule lies
on the shoulder of the Election Commission.
Al-Haj Jamshed Ali
Vs. A.K.M. Abdullah & Ors. 9 BLT (AD)-55
Article-102 read with Private University Act,
1992
Premature—the
Grants Commission had definitely opined in their letter dated 14 October 1997
in favour of according permission to the University on condition of withdrawal
of the writ petition which was then pending in the High Court Division.
Notwithstanding this, respondent no. 1 chose to prosecute the writ petition.
The writ petition in the circumstances must be considered as premature, the
cause of action not having arisen.
Bangladesh &
Ors. Vs. Dhaka International University & Ors. 9 BLT (AD)-100
Article-102 read with The trade Organization
Ordinance, 1961 Section-9
It is on
record that the duration of the present Executive Committee of the FBCCI is
going to be expired on 21st October, 2000. So an organization like FBCCI which
concerns with finance and other functions of national importance cannot be
thrown into chaos and confusion on the whim of a particular person, who is not
yet a voter for the organization’s election. When a part of the election has
already been completed without any objection from any corner, we find that the
present petitioner has no legal right even according to the memorandum of
articles of association of FBCCI.
Md. Abul Khair
Moreselin Vs. Bangladesh & Ors. 9BLT (HCD)-8
Article-102 read with Bangladesh Rin Salishi Ain,
1989 Section-13
Impugned
order was coram non-judice having been passed by the Chairman of the Board
alone without the presence and participation of other members who also did not
sign the impugned order. As a result the impugned order was wholly without
jurisdiction and hence void. It is needless to mention here that Section 5 of
the Limitation Act was not applicable in the instant case. Moreover, the impugned
order as we have found is illegal and without jurisdiction. Therefore, the
petitioner in our opinion is not debarred from invoking writ jurisdiction of
this Court under Article 102 of the Constitution without availing of the
alternative remedy by way of appeal before the Revenue Authority.
Mohammad Selim Vs.
Assistant Commissioner& Ors. 10 BLT (HCD)-29
Article- 102 read with Customs Act, 1969 Section-194(1)
The
Petitioner has taken a ground of hardship and also has furnished a bank
guarantee for the full account. The Commissioner of Customs being an appellate
authority by exercising his statutory discretionary power could have accepted
the appeal.
Ocean Trade Ltd Vs. Customs & Vat 11BLT
(HCD)-438
Article-102 read with Code of Civil Procedure,
1908 Order 47 rule-1
Order Passed by
Artha Rin Adalat
— if any mistake is committed in passing any order under the provisions of C.P.
Code and in applying the provisions of the Code in execution proceedings, then
which Court will correct that Mistake or apparent Mistake. The trend of the
decisions of this Court indicate and suggest that such Mistake palpable of
apparent or gross in nature may be corrected in appropriate cases to do justice
and undo injustice by the Court having Civil jurisdiction by exercising its power
both under section 115(1) and 151 of the Code of Civil Procedure but the
constitutional court under article 102 in any view of the matter cannot
exercise its power to correct Mistake or error committed by the Artha Rin
Adalat and there is no indication in the above cited cases, that the
interlocutory order passed by the Artha Rin Adalat is amendable to the
jurisdiction of this Division under Article 102 of the Constitution.
Agrani Bank Vs. Artha Rin Adalat & Ors. 11
BLT (HCD)-432
Article —102 read with Customs Act, 1969
Section —196B
When
order results from non-exercise of jurisdiction vested in a statutory body and
is ex facie without jurisdiction, invoking of constitutional jurisdiction under
article 102 of the Constitution is not barred. Moreover, when interpretation of
a section of the Customs Act. of public importance is sought for by making an
application under article 102 of the Constitution such application cannot be
said to be not maintainable notwithstanding the statutory remedy, even if any.
Bureau Veritas
Bangladesh Ltd. Vs. The Appellate Tribunal, Customs & Ors. 11 BLT(HCD)-316
Article-102 Read with Dhaka University Order,
1973, Article-52
When it
is found that the election was conducted in derogation of the clear provision
of law that election cannot be construed as an election as contemplated under
the Statute and in such circumstances the election that was held and result
published by the Vice Chancellor can be questioned in Writ jurisdiction.
Dhaka University Vs. G. Ahmed Chowdhury &
Ors. 11 BLT (AD)-222
Article-102 read with Securities and Exchange
Commission Rule, 1995 Rule-56(1)
Whether Show Cause Notice is required
Having
regard to the terms and conditions of the petitioner’s appointment letter and
the provisions of law of Securities and Exchange Commission Rule we find that
the High Court Division committed no illegality in holding that the impugned
order being a pure and simple order of termination without any stigma. In such
view of the matter, we find that no show cause notice is required to be issued
in the matter of such removal by way of termination.
Khaled Ahmed Vs. S.
E Commission& Ors 11 BLT(AD,-I73
Article- 102 read with Excise and salt Act,
1944 Rule-3(1) and 3(2)
S.R.O.
dated 01.07.88 —It appears from the notification dated 0 1.07.88 introducing
new rules substituting the earlier one to levy and collect excise duty on
capacity basis of the filling valve laid down guiding principles in sub-rules
3(1) and 3(2) of the said notification and in rule 5 thereof it has clearly stated
that if the factory remain closed for any specified reason for 190 days or more
consecutive days the assesses could apply to the National Board of Revenue for
exemption of duty for that period and the Board may allow partial or total
exemption for that period. The rules further made provisions for application
before National Board of Revenue for exemption of customs duty due to closure
of the factory for maintenance of the machinery, seasonal closure, lay off,
natural calamities, accident or any other unavoidable circumstances etc. The
same was not arbitrary or excessive delegation but has a rational and factual
basis in making assessment on the basis of filling valves for assessment of tax
on the production of aerated water of all sorts under heading Beverages.
Bangladesh & Ors
Vs. M/s. Eastern Beverage Industries Ltd & Anr. 12 BLT (AD) 112
Article- 102 read with Chittagong Port
Ordinance, 1976
Whether approval for setting up of Container
terminals given by the government in favour of the SSA Bangladesh Limited is
malafide and without any lawful authority
Public Interest -In the instance case though a contract has
not yet been entered into as yet but the process that has been adopted in the
matter of approval of the project being not fair, reasonable or according to
the established principles of law or practice or procedure, we are of the view
that the impugned action is malafide, arbitrary, unfair, unreasonable and does
not have the sanction of any law or norms.
SSA Bangladesh Ltd.
Vs. Mahmudul Islam & Ors 12BLT(AD)171
Article-102 read with Bangladesh
Telecommunication Act, 2004 Section-36(8) and 56(8)
Allocation of
frequency
It
appears that it is within the power of BRTC to allocate frequency to the
respondent. We are also mindful of the argument of the learned advocates for
the petitioners in the respective petition that prior to allocation of
frequency, license is required for the purpose from the competent authority. In
our opinion this point is to be considered by the BRTC and the BRTC being a
statutory authority having exclusive jurisdiction for the purpose 1 of
allocation of frequency is at liberty to dispose of the application of the
petitioner seeking allocation of frequency as per law/rules.
Bangladesh
Telecommunication Regulatory CommissionVs. Jamuna Television Limited & Ors
12 BLT (AD)232
Article-102 read with Ordinance No. 54 of 1985
Section 5
A decree
in respect of a property obtained in the suit for specific performance of
contract is no bar in listing the said property as abandoned property and that
question of listing the property in ‘Ka’ list or ‘Kha’ list is immaterial
unless the claimant of the particular property who has come before the court to
seek release of the property from the list of abandoned building establishes
that the property is not an abandoned property.
Government of
Bangladesh Vs. Mr. KM. Zaker Hossain 12 BLT (AD) 236
Article — 102 read with Land Reform Ordinance,
1989 Section – 5
Held: as
per Clause (L) of Government notification dated 7.3.95 (Annexure-A) and section
5 of the land Reform Ordinance, 1989 (Ordinance No.1 of 1989) (Annexure-I) any
dispute or appeal regarding settlement of the Non-Agricultural Government Khas
Land lies with the land Reform Board not with the land Appeal Board. The appeal
against Divisional Commissioner or Additional Divisional Commissioner to the
Land Appeal Board is nothing but a quorum non-judico. In view of the above
legal position the impugned judgment and order passed by the learned Appeal
Board is liable to be set aside as it has passed without any lawful authority
and is of no legal effect.
NazirAhmed Vs. Govt.
of Bangladesh & Ors 14 BLT (HCD)28
Article – 102 read with Khulna City
Corporation Ordinance, 1990 Section – 153
Whether circular
dated 23.9.2002 issued by the Government of Bangladesh wherein specifying the
duties of the Ward Commissioners is without Lawful authority and is of no legal
effect.
Since
the Ordinance does not make any distinction between the Ward Commissioners,
whether elected in the general seats or in the reserved seats, in running the
affairs of the Corporation, any such distinction whether it is made by the
Government or the Corporation itself, shall be illegal – the circular vide
Memo. No. Poura-l/M-02/2002/1133 dated 23.9.2002 (Annexure-B), issued under the
signature of the Joint Secretary, Ministry of Local Government, Rural
Development and Cooperative, Local Government Division (Poura1), is declared
illegal and without lawful authority. It is further declared that once elected,
the Commissioners, whether in the general seats or in the reserved seats, male
or female, are equal in all respect and they shall be so treated by all
concerned.
Shamima Sultana
& Ors. Vs Bangladesh & Ors. 14 BLT (HCD)33
Article —102 read with The voluntary Social
Welfare Agencies (Registration and control) Ordinance, 1961 Section —9(2)
The ACD
was perusing its philanthropic activities since its establishment in 1989 to
the satisfaction of all concerned as it appears from the letter dated 30.9.2003
issued by the NGO Affairs Bureau (Annexure-N)
but suddenly out of the blue came an inquiry team on 26.4.2003 (Annexure-E and
E- 1) without any prior notice or any paper containing any allegation. In due
course, a notice dated 16.6.2003 containing 12 (twelve) charges was issued to
this petitioner and another (Annexure-F) —Held: we are of the view that the
order dated 8.9.2003 (Annexure-H) and the order dated 10.9.2003 (Annexure-I),
are unfair, unreasonable and violative of the principles of natural justice, as
such, without lawful authority and of no legal effect.
Selima Sarwar Vs.
Govt. & ors 14 BLT (HCD)258
Article-102 read with Bankruptcy Act, 1997
[Act No. X of 1997] Section-96
When
presentation of the plaint by the plaintiff is not barred by the Act and
rejection of the plaint being not in accordance with the Act, it was a proper
case for interference by this Division in exercise of its constitutional
jurisdiction.
Abdur Rashid
Chowdhury Vs. Bankruptcy Court & Ors. 12 BLT (HCD)-100
Article-102 read with Customs Act, 1995 [Act
No. 12 of 199] Section-25A
On
examination of the Letter of Credit of the instant consignment being numbered
974-543- 29-95, Annexure-B, it appears from terms and conditions Nos. 14-16
that the importer has univocally expressed his willingness to have his goods
inspected and verified by a Pre-shipment inspection agency and made a condition
to the seller to mention the number and date of the certificate on the invoice
and as such, we find that the importer has expressed his initial willingness of
availing the CRF facilities which expressed his legitimate expectation to have
his goods inspected and verified by PSI agent and avail the benefit of
assessing his goods on the basis of CRF Certificate and thus a right has vested
in his favor.
Md. Nasiruddin Vs.
Commissioner of Customs 12 BLT (HCD)197
Article-102 read with Code of Civil Procedure
Code, 1908 Order-26 Rule-11
Executing
Court-prior to sale of the mortgaged property and that the Decree- holder bank
can satisfy its decree by adjustment of the amount deposited and the remission
of interest. If any, and requiring the judgment-debtor to pay the balance
amount, if any, remain due after such adjustments and in turn release the
property in favour of the Judgment-debtor.
M/s. Anowar Hossain
Vs. Artha Rin Adalat & Anr. 12BLT(HCD)294
Article-102 read with Bangladesh Standard and
Testing Institute (BSTI) Section-28
Maintainability-cancellation
of registration- The petitioner-company was registered with the Board of
Investment in accordance with the Investment Board Act, 1989 (Act No. XVII of
1989) undertaking to comply with the conditions that shall be imposed by the
BOl in the registration/approval in accordance with sub-section (4) of Section
11 and in case of any difficulties faced by the registered company after
completion of the project and commencing production thereat, the
petitioner-company was under obligation to approach the BOl to remove such
difficulties for the purpose of production and marketing in accordance with
sub-section (9) of Section II of the Act, 1 989—But in the instant case, the
petitioners even did not prefer an appeal under section 28 of the BSTI
Ordinance to the Government nor did they inform the matter to the BOT. No
complex, difficult and technical questions raised in the instant case—Held: The
production and marketing of the petitioner products, ‘Hunter” and “Crown” are
declared to be unlawful for marketing and sale within the country and the writ
petitioners are directed to withdraw and ensure withdrawal of entire stock of
those two drinks from the market of the country within 30 days and stop and
ensure stoppage of sale of those two drinks within the country with immediate
effect,
Crown Beverage Ltd.
& Ors Vs. Board of Investment & Ors 12 BLT (HCD) 295
Article-102 read with The Children Act, 1974 Section-S
read with Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain, 1995 Section-5(Kha) and 5(Gha)
In the
instant case that the Tribunal on due consideration and discussion came to the
decision that age of the accused was 14-15 years at the time of Trial—Held: the
trial of petitioner No.2 Alamgir Hossain has been held by the Bicharak (Judge)
Nari-O-Shishu Nirjatan Daman Bishesh Adalat is without Jurisdiction and without
lawful authority and as such the impugned judgment and order of conviction is
void abinitio.
Bangladesh Legal Aid
and Services Trust & Anr. Vs. Bangladesh & Ors 12 BLT (HCD) 334
Article-102 read with Electricity Act, 1910
Section-26 read with Dhaka Electric Supply Authority Act
In the
instant writ petition without prior service of notice demanding justice is not
maintainable. It further appears that the petitioner has not paid all the bills
upto date. It further appears that the respondents was not serving the bills
monthly but was not even objected to by the petitioner: Therefore the petitioner
is also not free from laches. Therefore the petitioner is not entitled to get
any relief under Article 102 of the Constitution, because he has not done his
part of his duties before coming to this court.
Moudud Ahmed Vs.
Dhaka Electric Supply Authority 12 BLT (HCD)351
Article —102 read with Bangladesh Industrial
Enterprises (Nationalization) (Fifth Amendment) Order, 1972, Article 8 (c)
It
appears that in pursuance to an agreement executed on 13.11.1964, by and
between the Dhakeswari Cotton Mills Ltd., a company and M/S. Dhaka Scientific
Works, a firm, the possession of the properties situated at the holding no.28,
Hatkhola Road, Dhaka, was handed over to the said firm. There is no dispute
that the said company had the legal competency to enter into such a contract.
But before obtaining the income tax clearance and completion of other legal
formalities, the war broke out and the company became an enemy entity but the
agreement dated 13.11.1964 was not rescinded. After liberation of Bangladesh,
in pursuance to different provisions of the Bangladesh Industrial Enterprises
(Nationalization) Order, 1972, the said company was nationalized and was placed
under a Corporation along with its all rights and obligations including its
agreement dated 13.11.1964. Under clause c of Article 8 of the Order, the said
agreement between the company and the firm continued to remain in force as the
Government did not take any step to rescind the said agreement. the notice
dated 9.3.1986 (Annexure-I) issued by the Official Liquidator, the respondent
no.2, is illegal and without any lawful authority.
Mrs. Rezia Sultana
Vs. Govt of Bangladesh 12 BLT (HCD)358
Article-102 read with Code of Civil Procedure,
1908 Section-9
Genuineness of
registration card —.Jurisdiction
In the
instant case the registration card of the petitioner bears the signature of the
principal as well as of the Inspector of Colleges of the Board but the
signature of Inspector of Colleges on the registration card of the petitioner
has been denied to be genuine by the Board. Further no evidence could be placed
before us to show that the list of the students sent by the college authority
along with other papers for registration purpose for the Session 1994-95 as
produced before us, was also sent to the Board. In order to come to a decision
in favour of the petitioner it is necessary to prove that the registration card
of the petitioner is genuine and the signature thereon are genuine, but it
appears, in the instant case, is not possible without taking proper evidence, and
cannot be done relaying on the affidavits but can done by a competent Civil
Court. In the facts and circumstances of the case we are of the view that it
would be fair and just not to give any decision in respect of the genuineness
of the registration card of the petitioner in the absence of proper evidence,
which will enable the petitioner to take recourse to Civil Court.
Arif Rabbani Vs.
Dhaka Education Board & Ors. 12 BLT (HCD)514
Article – 102 read with Government Servant (Discipline
And Appeal) Rules, 1985
The writ
petitioner’s appointment having been made in violation of the procedure and
system of recruitment the Government cancellation the recruitment and for such
cancelled no notice of show cause is required. Although the project period has
been termed to be temporary but the Government servant discipline rules have
been made to apply as to their service and they would not be terminated as such
without following the principle of nature justice . In the instant case any
order setting aside the impugned order would lead to the reinstatement and back
wages of the terminated employees.
Government of
Bangladesh& Ors Vs Md. Salim Reza & Ors. 13 BLT (AD)50
Article-102 read
with Besharkari College Shikkhakder Chakuri Shartabali Regulations, 1994
Regulation-18
In the
instant case, there was gross violation of the principles of natural justice
and the provisions contained in section 13(2)(uma) and regulation l6(Kha), in
not allowing reasonable opportunity of being heard in person, the total failure
of the enquiry committee to consider the charges in the notice to show-cause,
even a copy of the said report was not given to the petitioner, besides, the
Syndicate which is the appellate authority itself, approved the recommendation
of the Governing Body in imposing the punishment of removal without considering
the above noted facts and circumstances. Under such circumstances, an appeal
before the said Syndicate would neither be adequate nor efficacious or
effective.
Kazi Farooque Ahmed
Vs. National University & Ors 13BLT(HCD)181
Article-102 read with Customs Act, 1969
Section-32(3)
The
demand notices issued under section 32(3) of the Customs Act, 1969 without
serving any show cause notice as contemplated in the said section itself is
without lawful authority.
Awlad Hossain
Bhuiyan Vs. The Commissioner of Customs & Ors 13 BLT (HCD)298
Article —102 read with The Recognized
Non-Government-Secondary School Teachers (Board of Intermediate and Secondary
Education, Comilla) terms and conditions of service Regulations, 1979 Regulation
—12
Whether
the Petitioner disregarded the directions of the Governing body of the School,
her appointing authority and was guilty of insubordination.
The
requirement of examination of the penalties of dismissal or removal by the
Appeal and Arbitration Committee of the Board is not a hollow formality but an
onerous duty has been cast upon the said Committee to examine thread bear not
only to ensure meticulous observance of the provisions of the Regulations in
its true spirit but also to see that the concerned authorities acted fairly in
dealing with the delinquent teacher. The said regulation provides for further
examination of the findings of the Committee by the Board itself. It may or may
not approve the decision of its Committee. The Committee as well as the Board
are duty bound to consider the entire disciplinary proceeding judiciously in
its proper perspective. The whole idea is to ensure justice to the delinquent
teachers Failure to do so would make its decision nonest in the eye of law.
Ms. Mina Biswas Vs
Secondary & Higher Secondary Education Board, Comilla & Ors. 13 BLT
(HCD)427
Article —102 read withThe Recognized
Non-Government-Secondary School Teachers (Board of Intermediate and Secondary
Education, Comilla) terms and conditions of service Regulations, 1979
Regulation —14
Whether
the order of dismissal which was approved by the Board being the colourable exercise
of arbitrary power, is illegal and without any lawful authority
It
appears that the petitioner was a teacher in the Viqerunnessa Noon School for
about 9(nine) years. She joined the Ispahani Public School on 15.7.1975. She
was a senior teacher there. There was no allegation of any Misconduct or inefficiency against her for
the last 20 (twenty) years she worked there in the said school till she was
dismissed in 1995 —It appears that the teachers council of the school in its
meeting held on 30.12.1993, decided to form a club, as a recreational forum for
the teachers on a monthly contributions from the teachers. It appears from para-4
of the affidavit in opposition that she also contributed to the said fund for
some times but thereafter she defaulted and subsequently prayed to be excused
from paying the said subscription —It appears that the petitioner had no
obligation to pay subscriptions to the Teachers’ Club. As such, the Principal
of the school, the respondent no. 2, had no right or authority to issue the
memo no. 103/IPSC/7 dated 13.4.1995, asking her to show-cause as to why
disciplinary action should not be taken against her. This notice itself was
illegal, still, in reply to the notice to show cause dated 13.4.1995
(Annexure-B); issued by the respondent no. 2 she explained the reasons for her
such inability by her letter dated 15.4.1995 (Annexure-C). The matter ought to
have ended there but the Principal of the school again issued another notice on
22.4.1995 (Annexure-D). This notice was also illegal — the whole disciplinary
proceeding against the petitioner was initiated to victimize the petitioner
which is palpable and the Appeal and Arbitration Committee ought to have
considered it in its proper perspective but it Miserably failed to do so,
rather, illegally choose to tow and endorse the illegal decision of the
Governing Body of the school. The said Committee failed to consider the two
notices dated 13.4.1995 (Annexure-B) and dated 22.4.1995 (Annexure-D) issued by
the respondent no. 2, threatening to punish the petitioner if she fails to pay
the subscription. The committee ought to have appreciated that those notices
were illegal and the conduct of the respondent no. 2 in issuing those two
notices was reprehensible. The Board in its turn also blindly approved the
decision of the Governing Body and its Committee, as such, Miserably failed to
perform its statutory duty cast upon it under regulation 12 of the Regulations
in its true spirit, thereby, the respondent-Board also became a party to the
arbitrary action of the Governing Body of the school. This is unfortunate to
say the least.
Ms. Mina Biswas Vs
Secondary & Higher Secondary Education Board, Comilla & Ors 13 BLT
(HCD)427
Article —102 read with Industrial Relations
Ordinance, 1969 Section-34
Whether a Private
Limited Company, amenable to the Writ Jurisdiction
On the
point of maintainability it appears that section-2 (XXVIII) of the Industrial
Relations Ordinance, 1969, (hereinafter referred as IRO) puts a bar on a
security staff to be treated as a worker and as such the petitioner after his
transfer and change of status as a Darowan cannot be treated as a worker under
1.R.O. 1969. Therefore he cannot avail section 34 of the I.R.O. 1969. There is
no legal bar in approaching any forum other than Labour Court under the
Employment of Labour (Standing Order) Act. 1965 (hereinafter referred to as the
as the Act. 1965) to seek relief against infringement of fundamental right
guaranteed by the Constitution. It further appears that 100% shares of the
Respondent Company belongs to the Government. Therefore we hold that the write
petition is maintainable.
Md. Matiur Rahman Vs
Govt. of Bangladesh & Ors 13BLT(HCD)497
Article-102 read
with Abandoned Building (Supplementary Provisions) Ordinance, 1985 Section-5
read with P.O. No. 16 of 1972 Article-7
Since
there was no notice contemplated under Article 7 and there was non-compliance
of the provision of section 5 of the Ordinance No.54 of 1985 as no notice under
section 5(1)(a) of the Ordinance was ever served and as such the property was
wrongly included in the ‘Ka’ list of the abandoned building and the listing as
such is undoubtly has been done illegally and without any lawful authority.
Abdur Rashid Mollah
Vs. Bangladesh and Anr. 14 BLT (AD)40
Article – 102read with Code of Civil
Procedure, 1908 Section – 9
We are
of the view, that the High Court Division on correct assessment of the materials
on record came to the correct finding that the case properties are not
abandoned properties and accordingly the properties were already released by
the Government by Annexure-B and hence the appellants had no locus standi to
file the civil suit challenging the validity of the gift made in favour of the
Respondent after disposal of the writ petitions. The same is the position of
tenants and lessees as their interest in the case properties is derived from
the government and the general of observation of the High Court Division in the
review petition that disputed question of fact cannot be decided in the writ
petition does not create any right and interest in favour of the Government or
the tenants to file a suit before the civil court to decide title of the case
properties.
Bangladesh Vs. Ali
Akber Ansari. 14 BLT (AD)76
Article-102 read with Code of Civil Procedure,
1908 Order – 9 Rule – 13
There was no
contested hearing of the suit and the defendants could not place their case and
other materials before the court for proper adjudication.
Complete
justice is to be done in an appropriate case. “It is an extraordinary procedure
for doing justice for completion of or putting an end to a cause or matter
pending before this court. If a substantial justice under law and on undisputed
facts can be made so that parties may not be pushed to further litigation, then
a recourse to the provision of Article 104 may be justified” (45 D.L.R. (AD)
38).
Bangladesh Vs.
Shamirunnessa Bibi & Ors. 14BLT(AD)71
Article – 102 read with Private University
Act, 1992 (as amended) Section – 7
In the
instant case the respondent claims to have fulfilled all the conditions
enumerated under section 7 of the University Act. But the facts remain that in
violation of section 7(d) it has deposited the money in a Private Bank, Small
Industries and Commerce Bank Bangladesh Ltd. and not in a nationalized bank.
Thus a mandatory condition has not been complied with, by the respondent. For
this non-fulfillment of a statutory precondition, in our view, no right has
accrued to the respondent to take recourse to Article 102 of the constitution
for the breach of an accrued legal right.
Secretary, Ministry
of Education & Ors. Vs. North Point University. 14 BLT (AD)109
Article – 102 read with Industrial relation
Ordinance, 1969 Section – 11
Under
section 11 of the IRO appeal lies merely against order of cancellation of
registration under section 10 of IRO and no appeal lies against decision the
Labour Court against an order of rejecting of an application for cancellation
of a registration of Trade Union under section 10(2) of IRO and so there being
no scope of any appeal before the Labour Appellate Tribunal the appellant was
entitled to invoke writ jurisdiction.
M/s. Standard Match
Factory Ltd. Vs. First Labour Court, Chittagong 14 BLT (AD)162
Article – 102 Emergency Requisition of
Property Act, 1948 Section – 2 (III)
When the
contract is entered into by a public authority in exercise of its statutory
power in terms of statutory provisions any breach thereof may entitle the
aggrieved party to invoke the writ jurisdiction because the relief sought for
is against breach of its statutory obligation.
Ananda Builders
Limited Vs. BIWTA & Ors. 14 BLT
(AD)190
Article – 102 read with Customs Act Section –
25(1) and Section -30(A)
In the
present cases, the writ petitioner respondents claim legal I vested right on
the ground that on earlier occasions on import of Hard Boards of similar size
by the respondents the customs authority assessed customs duty etc, on the
basis of invoice value. In 52 DLR AD 49, the Appellate Division held that no
vested right accured even though at the time of opening of the letter of credit
there was a notification (SRO) providing for lesser tariff value. In the
present cases on previous occasion the customs authority made assessment on the
basis of invoice value. So, there is no question of acquiring vested right by
the respondents merely on the basis of earlier assessment.
Commissioner of
Customs & Anr. Vs. Bangladesh Traders 14 BLT (AD)254
Article —102 read with Income Tax Ordinance,
1984 Section—152E(2)
In the
instant case under 152E(2) of the Income tax Ordinance which provides that when
an application is allowed the Commission is required to examine the relevant
records and other evidences, if any, and that the order of the Commission shall
provide the terms of settlement but the impugned order did not manifest to have
been passed by the Commissioner in compliance with the provision of the said
law and as such the High Court Division has declared the same to have been done
without any lawful authority and directed the Taxes Settlement
Commission(writ-respondent No.2) to hear the application Nos.830-834 of 1998
afresh in accordance with law after affording reasonable opportunity to both
the parties to represent their respective case.
National Board of
Revenue & Ors Vs. Al-Haj Mohammad Sufian 15 BLT (AD)92
Article – 102 read with Civil service
(Examination for Promotion) Rules, 1986 Rule – 8(2)
The
appellants themselves being beneficiaries of the B.C.S. (Examination for
Promotion) Rules, 1980 they could not as well challenge virus of the rule 8(2)
merely as a common fledge to invoke the jurisdiction of the High Court Division
under Article 102 of the Constitution.
Delowar Hossain
Mollah & Ors. Vs. Bangladesh & Ors. 15 BLT (AD)124
Article —102 read with Bangladesh Service
Rules, Rule-9
Whether (lie
termination of the Petitioner, Headmaster of the Police line High School
Mymensingh from Service without notice or any proceeding is violative of the
Principles of natural justice
The date
of birth should be fixed with reference to that age accordingly to the method
indicated in Article 116 and sub-para (2) of Article 117 and the Service Roll
of the petitioner clearly shows that his qualification was recorded as
“Appeared in the Matriculation Examination in the year 1965” and hence the High
Court Division committed error in not relying upon the S.S.C. Certificate and
Admit Card issued by the Board and the High Court Division erroneously held that
the petitioner reached the age of 60 years in the year 2000 as contended by the
counsel of the Petitioner —Held: As it appears the High Coat Division found
that in the column against the date of birth the year 1940 (Christian era) is
only written and the service book as well as the service record of the
petitioner bears the signature as well as his thumb impression which appears to
be duly counter-signed on 25.7.1965 by the then Superintendent of Police at
Kustia and that after completion of service more than 25 years the petitioner
was allowed Voluntary retirement form the police department with effect 17.2.92
—and further law on the point is very clear as Rule 9 of the Bangladesh Service
provide that “A declaration of age, made by the an applicant for government
service at the time of, or of the purpose of entry into Government service
shall be deemed to be binding on the person who has made it and no revision of
such a declaration shall be allowed to be made by him at a later date for any
purpose whatsoever” —and on that consideration the High Court Division did not
accept the submission of the learned Advocate of the petitioner regarding his
age on the basis of the S.S.C. Certificate and Admit Card as any alteration or
revision of the service record is not permissible —We are of the view that the
High Court Division on collect appreciation of facts and law discharged the
Rule.
K.M. Shamsul A lain
Vs. Police line High School & Ors. 15 BLT (AD) 01
Article —102 read with The Waqf Ordinance,
1962 Section —64(1)
The
appellants are the tenants in respect of the Waqf property under the tenancy
agreement between the respective shop owners and the Mutawalli of the Waqf
Estate —Held:- Since the appellants are neither strangers nor trespassers as
regard the Waqf property, rather being the tenants of the Waqf Estate and the
said tenancy having not been terminated the order of the Administrator of Waqf
for eviction of the appellants as per provision of section 64(1) of the
Ordinance cannot be considered as legal, rather the said order is a
Misconceived one. As the appellants are tenants of the Waqf estate and that
even if the tenancy is terminated, the appellants are not liable to be evicted
resorting to provision of section 64(1) of the ordinance since the relationship
between the appellants and the Waqf estate is governed by the provision of
Premises Rent Control Act, 1991.
Md. Yousuf & Ors
Vs. Administrator of Waqf & Ors. 15BLT(AD)52
Article —102 read with Artha Rin Adalat Ain,
2003 Section—5
Decree holder
Bank instituted Mortgage execution case and the Bank being failed to realize
the entire decretal amount in open auction the Bank entered into private
negotiation and agreed to sell the mortgaged property to the petitioner and
accordingly the petitioner paid 10% on account of advance out of total
consideration money but the Bank did not execute the deed of sale in favour of
the petitioner and cancelled the agreement for sale and as such the petitioner
filed a petition before the executing court —executing court and the High Court
Division came to the decision that the Private negotiation claimed by the
petitioner cannot be allowed in the mortgage execution case —Held: we are of
the view that the petitioner’s application has legally been rejected by the
respondent No.1, the Artha Rin Adalat and the High Court Division in its turn
came to a correct view in rejecting the application summarily.
M/S Karnaphuli
Traders Vs. Joint District Judge &Ors. 15BLT(AD)75
Article —102 read with Public
Corporation(Management and Co-ordination) Ordinance, 1986
(as Amended) Section —2(c)
Worker —The writ petitioner is admittedly an Imam who is a skilled person
engaged in the establishment of the petitioner and though he was allegedly paid
according to the National Pay Scale but that will not make him a public
servant. The High Court Division has a good ground in classifying him to the
category of ‘worker’ under section 2(e) of the Public Corporation (Management
and Coordination) Ordinance 1986.
Adamjee Jute Mills
Ltd & Ors Vs. M.A. Kashem & Anr 15 BLT (AD)165
Article- 102 read with Code of Civil
Procedure, 1908 Order 1 Rule—10(2)
As it
appears the High Court Division found that the plaintiff bank filed the present
suit for realization of Tk.59,00,53,045.66 only as on 31.12.1997 impleading 12
parties as defendants including the defendant No.5 and in the plaint it has
been categorically stated that the defendant Nos. 2-4 are the directors of the
defendant No. 1 and they stood as guarantors by executing personal guarantees
and the defendant NO.5 also made 2 charge on her property for repayment of the
loan availed by defendant No.1 and in the above suit the defendant No.5, prayed
for striking out her name on the ground that she did not execute any guarantee
bond and/or any charge documents for the repayment of the loan availed by the
defendant No.1 as alleged by the plaintiff bank —trial court below directed to
strike out the name of the defendant No. 5 from the plaint and also to delete
from the plaint the properties of the defendant No.5 — High Court Division
accordingly made the Rule absolute in part declaring that the order so far as
it relates to the striking out of the name of defendant No.5 from the plaint
has been passed without lawful authority and is of no legal effect —Held: we
are of the view that the High Court Division on correct appreciation of the
materials on record and the law involved made the Rule absolute and there is no
material on the record to call for interference.
Mrs. Hasina Shams
Vs. I.F.I.C Bank Ltd. & Ors 15 BLT (AD)174
Article —102 read with The Service
(Re-Organization and Conditions) Act, 1975 Section-5
Maintainable
—equality doctrine —writ Petitioner challenged the orders, which were issued
under section-5 of the Service (Reorganizations and Conditions) Act 1975 and
have the effect of law. Accordingly the writ petition is maintainable.
Govt. of Bangladesh
& Ors Vs. Md. Sahamsul Huq 15BLT(AD)177
Article-102 read with Administrative Tribunal
Act, 1980 Section-2(aa)
Writ Petitioner is
an employee of an industrial enterprise fully controlled by Bangladesh Jute
Mills corporation- Writ Jurisdiction.
Section
2 (aa) of the Act defines statutory public authority as an authority,
corporation or body specified in the Schedule to this Act. In the schedule of
the Act the name of Bangladesh Jute Mills Corporation (BJMC) does not find
place. Therefore the High Court Division was in error in holding that the writ-
petitioner was a person in the service of the Republic and as such his remedy
lay before the Administrative Tribunal. The judgment of the High Court Division
is accordingly liable to be set aside.
Md. Sadequr Rahman
Vs. Munawar Jute Mills Ltd & Ors AD)354
Article —102 read with The Constitution (14th
Amendment) Act, 2004, Arcticle-65(3)
Whether the impugned
Amendment is absolutely in contravention of the basic feature of the
constitution inasmuch as it does not reflect or contain the direct
participation of the people.
Since
commencement of the Constitution, Article 65(3) was there who shall only be
designated as member of Parliament as provided in Article 65(2) and so long as
clause (3) is effective the members provided for in that clause shall be the
members of Parliament and provision has been made for reserved seats
exclusively for women to be elected in accordance with law made by the
Parliament and such members shall be designated as members of Parliament and
subsequently the previous Article 65(3) has been substituted by a similar
provision enhancing the number of reserved seats to 45 by the 14th
Constitutional Amendment Act 2004, the same cannot be said to be violative as
inconsistent or repugnant to the Constitution.
Farida Akhter &
Ors Vs. Bangladesh & Ors 15 BLT (AD)206
Article —102 read with The Constitution (14th
Amendment) Act, 2004, Article-65(3)
Whether the impugned
amendment of the constitution contrary to the Article 27 of the Constitution
and undemocratic
The
validity of the impugned Act providing modality, methodologies and procedure
for the election to the women reserved seats in keeping with the mandate,
purpose and object of the amendment to the Constitution in Article 65(3), if
judged by the touch stone of the Constitution, we do not find the same to be
inconsistent or repugnant or ultra-vires the Constitution or offending any law.
On the contrary, the same is designed to reflect the purpose and procedure and
for materializing the object of the amended provision of the Constitution
providing for election to the 45 reserved seats for the women in the Parliament
on the basis of procedure of proportional representation in the Parliament
through single transferable vote enhancing the cause of democracy through a
process which could not be termed as undemocratic.
Farida Akhter &
Ors Vs. Bangladesh & Ors 15 BLT (AD)206
Article- 102 read with Code of Civil Procedure,
1908 Order—22 rule-4
High
Court Division held that the question whether refusal of the prayer for
recording an order abatement by the impugned order is a valid order or not are
to be decided in a forum having civil jurisdiction and so the writ petition is
not maintainable —We are of the view that the High Court Division on correct
assessment of the evidence on record and applying the correct proposition of
law discharged the Rule.
Faroque Ahmed Vs.
Subordinate Judge, 2nd Court & Ors 15 BLT (AD)236
Article- 102 read with Code of Civil
Procedure, 1908 Order-21 rule-89
High
Court Division held that the impugned order passed by the Artha Rin Adalat in a
proceeding under order 21, Rule 89 of the Code of Civil Procedure is not
amenable to writ jurisdiction and the same can in an appropriate case be deal
with by a civil court. The High Court Division further held that the order
Artha Rin Adalat passed in exercise of power under the Code of Civil Procedure
cannot be challenged under Article 102(2) of the Constitution —We are of the
view that the High Court Division upon correct assessment of the materials on
record arrived at a correct decision.
Md. Mokaddas All
& Ors Vs. Artha Rin Adalat & Ors 15 BLT (AD)237
Article-102 read with Building Construction
Act, 1952 (as amended in 1987), Sections —3 and 3B
In the
Master Plan the respondent No.2, considering many factors, reserved the land in
question for Public Car Parking Centre and the respondent No.1 did not deny the
specific assertion of the appellant that the land in question was handed over
to it on 8.9.1987 for construction of Public Car Parking Place therein and that
the respondent No.1, even though got possession of the question place on
8.9.1987 for establishing Car Parking Centre therein immediately took decision
to hand over the same to the respondent No-5 for construction of multi storied
shopping complex and subsequently started construction of a multistoried
shopping complex thereon without amendment of the Master Plan from the
respondent No.2 and further the respondent No.1, before starting construction
did not even care to get the building plan approved. So the invoking of writ
jurisdiction against such illegal construction which was made even after
issuance of notice under sections and 3B of Act, 1952, is not premature.
Sharif Nurul Ambia
Vs. Dhaka city corporation & Ors 15
BLT (AD)305
Article —102 read with Artha Rin Adalat, 1990 Section
—7
Maintainability of
the Writ Petition against the judgment and decree of the Artha Rin Adalat.
The writ
petition is not proper course for challenging the judgment of Artha Rin in view
of provision for filing appeal being provided in the statute.
Bangladesh
Agricultural Development Corporation Vs. Artha Rin Adalat & Ors
15BLT(AD)363
Article —102 read with The recognized
non-government (Secondary and Higher Secondary) managing Committee
Whether the order
nominating the respondent No.5 as the chairman of the managing Committee of a
High School is of no legal effect.
The
Government reserves the right to appoint any other person as the Chairman of
the Managing Committee ignoring the recommendation of the Managing Committee,
but in that case, the Government cannot appoint any person as recommended by
the Managing Committee but may do so from outside.
Abul Hossain Azad Vs.
Government of Bangladesh & Ors 15 BLT (HCD) 44
Article-102 read with Gram Sarker Ain, 2003
(Act VI of 2003)
The Gram
Sharkers under the provisions of Gram Sharker Ain, 2003, are created as
corporate bodies but not as local government bodies. The Parliament in its
wisdom, can do so. It can create statutory corporations also but it cannot
create a body which is professed to represent a section of the people but
without their representation and without making it accountable to the said
section. The Gram Sharker is sought to represent the people of the village but
all its members are nominated by the concerned authority. As such, they are
neither the representative of the village people nor they are accountable to
them. They are accountable to the bureaucracy. As such, in the name of the Gram
Sharker, an autocracy has been created. This is against the spirit of the
Constitution, so lucidly explained by Mustafa Kamal, J., in Panir’s case at
para-72, that there cannot be any half way house between the democracy and
autocracy. The Parliament may, in its wisdom, even abolish a local Government
but cannot replace it with a body like Gram Sharker which is not a local
government but dependent on bureaucracy. This is what we call a colourable
legislation in the forceful language of Mustafa Kamal,J., in Panir’s case at
para-7 1. It may be remembered that in Panir’s case, the dissolution of
Upazilla Parishad was justified on the ground that it was not an administrative
unit. But in the perspective of village, under the Act XXI of 1997, the Village
Parishad was already an administrative unit and its members were elected from
and amongst the village people, bearing a representative character, as such,
was visibly and decidedly a local government. But the village Parishad was
abolished and was replaced by nothing better than the Gram Sharker which is
demonstratively an autocracy in all respect, created by the Gram Sharker Ain,
2003, in violation of the democratic spirit enshrined in Articles 7,9,11, 59
and 60 of the Constitution, as such, the said Ain, is not law and we are
constrained to declare so.
Blast Vs. Bangladesh
& Ors 15 BLT (HCD)156
Article-I 02 read with The Police officers
(Special Provisions) Ordinance, 1976 (as amended 1994)
Section —5(Ga)
In the
instant case, we find that the provisions of the ordinance 1976 (Annexure-‘L’)
are found to be discriminatory and harsh in Comparison with the provisions of
PRB and in the absence of its guideline there is a wide scope on the part of
the authority to exercise the same arbitrarily enabling it to do injustice.—We
are constrained to hold that in the instant case there is a fair scope to give
proper relief to the petitioner without touching the vires of law in question.
Md. Amirul Islam Vs.
Bangladesh & Ors 15BLT(HCD)197
Article-102 read with Artha Rin Adalat Ain,
2003 Section—49 read with section 57
Writ
Petitioner failed to comply on compromise decree and appeared in the execution
case and filed an application under section 49 read with section 57 of the
Artha Rin Adalat Ain —Writ Petitioner
due to acute financial constraint could not pay the decreetal amount in time,
but he is very much eager to pay back the outstanding dues of the plaintiff-
bank and that considering the financial crisis of the petitioner he, on
humanitarian ground, may be given another chance to pay the decreetal amount in
4 installments within one year time as contended by the learned counsel for the
petitioner —Held: we are inclined to give another chance to the petitioner to
pay the decreetal amount in installments.
Shiekh Shahidul
Islam Vs. Joint District Judge & Ors 15 BLT (HCD)326
Article 102 read with Artha Rin Adalat Ain,
2003, Section —13
The
court before passing any judgment or order or finally disposing of the suit
shall have to take into consideration the facts stated in the plaint and
written statement of the parties and to determine that whether the defendants
admit the claim of the plaintiff and also to determine whether there is any
dispute between the parties as regards the facts as stated in the pleadings
—When the Adalat passed the impugned judgment beyond the scope of law as
provided for in section 13 of the Ain then it can be said that the same is
without jurisdiction. But when it appears from the impugned judgment that the
same is passed upon complying with the provision of section 13 it cannot be
said that the same is without jurisdiction.
Md. Arfan Uddin
Akand & Ors Vs. Artha Rin Adalat & Ors 15 BLT (HCD)343
Article- 102 read with Evidence Act, 1872 Section-73
It
appears that the admitted signature of Fidaul- Huq appears in Annexure- A to
the writ petition does not tally with the
signature appearing in the Vokalatnama and the affidavit of the writ petition
and the subsequent affidavits made in the application for injunction. Under Section
73 of the Evidence Act the court can compare the signature whether the
petitioner is fake Fidaul- Huq or not is a disputed question of facts and it
cannot be determined in writ jurisdiction.
Fida-ul-Huq Vs.
Govt. of Bangladesh 15 BLT (HCD)399
Article- 102
Court cannot
consider a case only on the basis of the Photostat documents
Held:-
We do not find any endorsement by learned Advocate for the petitioner of those
documents. But the learned Advocate for the petitioner used those documents as
original without any authentication and as such we cannot rely upon the
Photostat documents as those documents have no evidentiary value under the
evidence Act.
Al-Haj Abdul Maleque
Gazi Vs. Bangladesh & Ors 15 BLT (HCD)422
Article- 102 Read with Bank Companies Act,
1991 Section-27(Ka) (Ka)
Defaulting borrower
—CIB Report
The bank
advanced loan to the petitioner company as per certain terms and conditions.
The petitioner company violated the loan contract and defaulted in payment of
loan. As per credit information furnished by the respondent No. 3, Bank, the
Bangladesh Bank prepared the impugned credit information report. Since the
petitioner company failed to repay the loan, the respondent No. 3 legally
furnished credit information to the Bangladesh Bank in compliance of Section 27
(Ka) ka of Bank Companies Act, 1991. The respondent No. 1 did not violate any
provisions of law and or acted contrary to any provisions of law in including
the name of the petitioners’ Company in the CIB report.
Sultana Jute Mills
Ltd. & Anr Vs. Bangladesh Bank & Ors 15 BLT (HCD)442
Article —102 read with The Prisons Act, 1894
Section —56 read with The Bengal
Jail Code, 1864 Rule-719
Writ
petitioner was convicted on 17.8.94 in two cases and was sentenced to 10 years
and 8 years rigorous imprisonment and ever since his conviction, he was
confined in jail, while in jail, he was continuously confined with the bar
fetters since 17.8.94 for period of about 33 months (till filing of the writ
petition) —a prisoner even after his conviction cannot be denuded of all his
fundamental rights except as contemplated by the fact of his being imprisoned
and in the instant case we find that even in the conspicuous absence of
availability of circumstances warranting imposition of bar fetters, on the
prisoner Fazlu, the jail authority imposed the same on him and that too without
assigning any reason as contemplated by law, History ticket which is supposed
to disclose the reason for imposition of bar fetters —the persons found
responsible in the episode, as aforesaid, be brought to justice by way of an
appropriate departmental proceeding against him /them, if not retired from
service in the meantime.
Ain-O-Salish Kendro
(ASK) Vs. Govt. of Bangladesh & Ors 15 BLT (HCD)448
Article-102 read with Artha Rin Adalat Ain,
2003 Section-12(2)
Order
has been passed ignoring the mandatory provisions of section 12 of the Artha
Rin Adalat Ain, 2003 —Sale of pledge
goods and adjustment against the outstanding loan.
Since
the plaintiff Bank did not comply with either of sub-section (1) or (2)
provisions of section 12 of the Artha Rin Adalat Ain, 2003, defendant praying
for selling the pledge goods. —Held: The learned judge of the Artha Rin Adalat
concerned is directed to pass necessary order for selling the pledge goods of
this petitioner after making inspection and inventory thereof by competent
person /persons or by any competent agency in presence of both the parties.
M/s Shorhab
Vegetable Oil Refinery Ltd. Vs. Artha Rin Adalat & Ors 15 BLT (11(D) 537
Article —102 read with Public Procurement
Regulations, Regulation-53
In due
course, after observing all formalities, the respondent No.3, Ministry of
Finance, by its letter dated 16.10.2006 approved the recommendation of the
respondent No.4, Bangladesh Bank. for acceptance of the tender of the
respondent No. 1, writ-petitioner- thereupon complain, The Review Panel after
hearing the petitioner, writ respondent No.4, and the respondent No.4,
Bangladesh Bank, by its order dated 5.11 .2006 held that the bid of the
respondent No.1, writ-petitioner, was non-responsive and as such the awarding
of the contract to the respondent No. 1, writ- petitioner, was to be cancelled
and the tender of the petitioner, writ respondent No.4, as the lowest bidder
should be accepted —the High Court Division made the Rule absolute declaring
the Order dated 5.11 .2006 passed by the Review Panel illegal —Held: In the
present case, since the respondent No. 1, writ petitioner, disclosed in its bid
documents sufficient materials showing that it submitted its bid as an agent of
its disclosed principal, MT and PCB, the financial turnover requirements
submitted by it fulfilled the requirement of clause 6.1 of ITB and the bid was
therefore responsive. It suffices to say that the fact of the case in hand does
not call for overlooking or ignoring the corporate distinction in law of the
respondent No.1 (PISB), AIT and PCB. There is therefore no cogent reason to
interfere with the same.
St. Electronics Pvt.
Ltd. Vs. Patimas Int’l Sdn Berhad & Ors 16 BLT (AD) 70
Article-102 read with Acquisition and
Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982)
Whether the High
Court Division was wrong in declaring the notification dated October 27, 1986
addressed to the writ petitioner asking her to remove the structures from the
plot No.1009 i.e. the land which is claimed to have been acquired in pursuant
to the Gazette Notification of 6th November, 1986.
Writ-petitioner
clearly shows that proceeding in L.A. Case No.41 of 1964-65 was initiated so
far the land of plot No.1009 is involved was for .45 acre of land and this fact
has not been disproved by placing the records of the L.A. Case No.41 of
1964-65. So even if there has been averment in the plaint of Title Suit No.166
of 1972 that entire land of plot No.1009 was acquired but same being not the
correct state of the matter, the averment in the plaint of title suit cannot be
made basis by the appellant to substantiate its claim, that in fact proceeding
was initiated under the Act for requisition and acquisition of .5 1 acre of
plot No.1009. The correction as has been made by the notice dated October 27,
1986 published in the Gazette of November 6, 1986 in the background of the
discussions made hereinbefore cannot be considered legal, one since by the said
correction in fact Respondent’s land measuring .06 acre has been acquired
without initiating any proceeding under the existing law i.e. under the
provision of the ordinance II of 1982.
Govt. of Bangladesh
& Ors Vs. Most. Nurjahan Begum 16 BLT (AD)190
Article-102 read with Paurashava Ordinance,
1977 Section-10(2)(g)
Question of loan
default was pending in the court of law
High
Court Division held that the fact that bank instituted suits for realization of
loan money is enough to hold respondent No.7 is a bank loan defaulter and since
the suits have been filed before filing of the nomination paper and still
pending as such respondent No.7 cannot come out of the Mischief of Section 1
0(2)(g) of the ordinance—Held: the High Court Division committed error of law in
holding that the writ respondent No.7 (appellant) is a bank defaulter. We are
rather of the view that the matter is pending before the Appellate Division and
so it has not reached its finality and therefore the decision arrived at by the
High Court Division declaring the Appellant as Bank Loan defaulter, at this
stage, is premature and erroneous.
Abdul Halim Gazi Vs.
Afzal Hossain & Ors 16 BLT (AD)195
Article-102 read with Building Construction
Act, 1952 Section-3 read with Civil Aviation Rules, 1984
Rule-11
The
issuance of the cancellation order was as well necessitated on the ground of
public equity and interest which would obviously override the individual equity
and interest and accordingly, the principle of promissory estoppel is also of
no avail due to supervening public equity and interest, the authority could change its stand and be
allowed to withdraw from approved sanction plan though the effect of action may
adversely affect the interest of writ-petitioners on account of cancellation of
the approved plan.—The plan was issued in favour of the writ- petitioners in
clear violation of its own rules and the Civil Aviation Rules, 1984 and for
that reasons as aforesaid the approved plan for construction of the concerned
building upto the 22nd storied beyond the permissible the 6th floor as passed
by RAJUK is declared without any lawful authority and as such, the same was of
no legal effect. Accordingly, we maintain the order of cancellation of the
approved plan by RAJUK dated 21.06.1999 as a valid order so far above the
permissible 6th floor limit.
Chairman, RAJUK
& Anr Vs. A. Rouf Chowdhury & Ors 16 BLT (AD)279
Article- 102 read with Income Tax Ordinance,
1994 Section-165 and 166
Proceedings
in Special Case arising out of complaint case under Sections 165 and 166 of the
income Tax Ordinance, 1994 —Held: as the instant writ petition has raised
question of law and interpretation of statute. Further, the respondent had no
other efficacious alternative remedy under the Income Tax Ordinance to
challenge the criminal case now pending against him. It is pertinent to point
out that a Division Bench of the High Court Division has already held in the
case of Jahangir Hossain Howlader 58 DLR (2006)106 that filing of an
application under section 561A of the Code of Criminal Procedure is not an
adequate alternative remedy as contemplated under Article 102(2) of the
Constitution. Further, in the case of M.A. High Vs. TCB, 40 DLR(AD)206 it is
held that availability of alternative remedy by way of appeal or revision will
not stand on the way when the question of law and interpretation of statute
is involved. It is also decided in the
case of Nesar Ahmed Vs. Government of Bangladesh and another, 49 DLR(AD)1 11
that when it becomes impossible to avail of the alternative remedy, relief by
way of writ petition under Article 102 of the Constitution is competent. The
instant writ petition is therefore maintainable.
Govt. of Bangladesh
& Ors Vs. lqbal Hasan Mahmood 16 BLT (AD)313
Article- 102 read with Evidence Act, 1872,
Section- 101
Burden of proof
Since
the court of settlement directed the writ petitioner to produce the original
documents in respect of the disputed property but the writ petitioner failed to
produce the documents. —In the instant case since the writ petitioner claimed
that the property is not abandoned property and did not vest in the Government
it was squarely on him to prove that the building is not an abandoned property.
Golam Rabbani Vs.
Chairman, Court of Settlement & Ors 16 BLT (AD)319
Article-102 read with Code of Civil Procedure, 1908 Section-9
The law
is now settled that a litigant is not permitted to move the High Court Division
under writ jurisdiction over a matter as regard to which he has already filed
the suit in the civil Court and the same is pending.
Golam Azam &
Anr. Vs. Bangladesh & Ors 16 BLT (AD)361
Article- 102 read with Rural Electrification
Board Ordinance, 1977; Sections -8 & 9
Transferring the
Electricity distribution Lines from PDB to REB
The
Government has ample power to transfer the electric distribution lines from PDB
to REB, and whether or not lines has been transferred from Municipal area to
other places are all the disputed questions of facts which cannot be decided by
this Court.
Md. Mizanur Rahman
Khan & Ors Vs Govt. of Bangladesh & Ors 16 BLT (HCD) 247
Article-102 read with Article, 11, 59 and 60
Definitive Provision
on Local government
Article
11, 59 and 60, impose an obligation upon the Government to set up local
government bodies, composed of elected representatives of the people, ensuring
effective participation of the people at all levels so that the democratic
practice can be brought to the grass -root level of the country, the ultimate
goal of any, democratic nation — none of the Ministers, whips and other
functionaries and Similarly, the members of Parliament, have got no direct role
or function, in respect of either development or maintenance of law and Order,
in the district or in other local administrative units.
Anwar Hossain Manju
Vs. Govt. of Bangladesh & Ors 16 BLT (HCD)86
Article-102 read with Evidence Act, 1872
Section-73
Artha Rin Case for
recovery of loan money
Writ
Petitioner asserted that he never took any loan from the plaintiff-bank and
also specifically alleged that the then Manager of the plaintiff-Bank in
connivence with the defendant no.2 Sreemoti Kali Mata Bala created the papers
in the name of the petitioner for sanctioning the loan in question and that he
never mortgaged any property or put any signature on any paper for taking such
loan. — The Artha Rin Adalat concerned without taking these facts into
consideration rejected this petitioners’ prayer for examination of his specimen
signatures with his purported signatures appearing in the papers relating to
the loan transaction in question by hand writing expert —Held: Considering
these specific statements and allegations of this writ petitioner which he has
stated in his very written statement we think that for the ends of justice the
prayer of this writ-petitioner for examination of the signatures appearing in
the papers relating to loan in question with his specimen signature by the hand
writing expert should have been allowed. So, we are of the view that the Artha
Rin Adalat concerned was not justified in passing the impugned order rejecting
this petitioner’s prayer for examination of the signatures by hand writing
expert.
Ambarish Roy Vs.
Artha Rin Adalat & Ors 16 BLT (HCD)84
Article-102 read with Rural Electrification
Board Ordinance, (Amendment) Act, 2002 Section- 9(a)
Although
in the preamble of the Rural Electrification board Ordinance, 1977 it has been
stated that the Board has been set up for rural electrification in Bangladesh
and taking measures for effective use of electrical power for development of the
rural economy of the Country and rural area has been defined in section 2(e) of
the said Ordinance it has not been stated in the said Ordinance or in any other
law that Rural Electrification Board cannot operate or take over electricity
distribution system in areas other than rural areas of that the Rural
Electrification Board can operate in rural areas only to the exclusion of other
areas. Thus the Board has acted within its jurisdiction to take over the
electrical systems in Ramgonj Pourashava and its adjoining areas pursuant to
clause 9(a) of the said Ordinance.
Enayet Hossain @
Shapon Vs. Govt. of Bangladesh & Ors 16 BLT (HCD)135
Article-102 read with Emergency proclamation,
2007 [Order No.2 dated 11.1.2007]
Whether the rule
cannot be heard as the enforcement of fundamental rights as enshrined under the
Constitution has been suspended during the subsistence of the state of
emergency.
Held, we
are of the opinion that the Rule involves enforcement of fundamental Rights,
enforcement of fundamental rights or not also requires the matter to be opened
and discussed but the Emergency Proclamation Order No. 2 categorically said
that hearing of all cases relating to enforcement of fundamental rights shall
remain suspended during the subsistence’ of the state of emergency. —Under such
circumstances, we are of the opinion that we cannot hear this Rule under the
prevailing circumstances.
Md. Abdul Hashem
& Ors Vs. Govt. of Bangladesh & Ors 16 BLT (HCD)148
Article-102 read with Services (reorganization
and condition) Act, 1975; Section-5
In the
instant case the Government (Ministry of Finance, Planning, Finance Division,
implementation wing vide Office Memo MF(AD) 1 -R(G)/80/82(ET.III/3 dated
09.01.1983 decided to place the common category post of head Assistant under
different Ministry, Divisions on the new national scale of pay of Tk.470-1135/-
and forwarded the said Memo to Bangladesh Sugar and Food Industries
Corporation. On receipt of the said Memo the Board of Bangladesh Sugar and Food
Industries Corporation in its meeting decided to allow pay and scale of
Tk.4701135 with effect from 01.01.1984 to the Assistant and equivalent of BSFIC
who were in the scale of Tk-350-555/= on 30.06.73 and subsequently placed in
Tk-400-925/= only which was continued till 17.03.93 such decision of the board
was never withdrawn or cancelled. But the authority vide office order No.
ESTF/SF/CF/l 5/252 dated 17.03.1993 placed the pay and scale of the I St party
under grade of Tk. 425-825/- with effect from 01.01.1984 and allowed the time
scale. The Labour Court failed to consider such aspect of the case but wrongly
considered the 1st party as an employees of the mill and decided the case in
the light of the agreement / settlement dated 28.11.1984 between Bangladesh
Sugar and Food Industries Corporation Bangladesh with Chinicall Shramic
Federation and Chinicall Union. But the present 1st parties are not party to
the said agreement dated 28.11.1984 and as such we find that the Labour Court
Misconceived the basic character of the 1st party and entitlement of
the I St party and decided the case on the basis of aforesaid
agreement/settlement dated 28.11.1984 between the mill and the worker and as
such we find that the Labour Court committed illegality which is not
sustainable in law.
Bangladesh Sugar and
Food Industries Corporation Vs Chairman, Second Labour Court & Ors 16 BLT
(HCD) 319
Article-102 read with Civil Courts Act, 1887 Section-36(1)
ডিসেম্বর মাসে
বাৎসরিক দেওয়ানী অবকাশকালীন সময়ে কতিপয় জেলার জন্য একটি জয়েন্ট ডিসট্রিক্ট জজ
আদালত অথবা অবস্থাভেদে ও প্রয়োজন অনুসারে প্রত্যেক জেলায় একটি করিয়া অবকাশকালীন
আদালত সংশ্লিষ্ট জেলা বা জেলা সমূহের জন্য দেওয়ানী মূল অধিক্ষেত্রের সকল মোকদ্দমা
দায়ের এবং জরুরী আবেদনপত্র শুনানী ও নিস্পত্তি করিবার ক্ষমতা অর্পণ করা যাইতে
পারে। ইহাতে আইনগত কোন বাধা নাই। বরঞ্চ ইহাতে আইনের আশ্রয় লাভের জন্য যে কোন
বিচারপ্রার্থীর আইনগত অধিকার সুরক্ষিত ও নিশ্চিত হবে।
Mr. Monzil Morshed
& Ors Vs Govt. of Bangladesh & Ors 16 BLT (HCD)327
Article —102 read with Artha Rin Adalat Ain,
2003 Section-44
Whether
the Judgment and decree passed by the Artha Rin Adalat is amenable under Writ
Jurisdiction Held: We have observed that the report submitted by the settler is
not an agreement in accordance with law as both the parties has not signed in
the agreement and such an agreement cannot be form part of the decree according
to order 3 of Rule 23 of the Code of Civil Procedure. Nobody dispute that
against the decree passed by Artha Rin Adalat the remedy lies an appeal. But in
the instant case the Artha Rin Adalat passed the decree on an unlawful
agreement and that the decree was passed under Section 44 of the Artha Rin
Adalat Ain and as such, such decree is without jurisdiction and as such the judgment
and decree dated 03.02.2005 is amenable under the writ jurisdiction.
Md. Nojibur Rahman
Talukder Vs Artha Rin Adalat & Anr. 16 BLT (HCD)329
Article —102 read with Bangladesh Bank Order,
1972 Article-42(a) and (b) read with Bank Company Act, 1991 Section 5 Ga Ga, 5
(Chha) and 27 Ka Ka
We are
of the view that the word ‘guarantor’ cannot be tagged with the definition of
‘borrower’ and particularly having regard to the definition of
“defaulter-borrower” (খেলাপী
ঋণ গ্রহীতা) as per Section-5 Ga Ga of the Act, and that the requirement for sending the informations of
“defaulter-borrowers” to the Bangladesh Bank has been detailed in Section-27 Ka
Ka of the Act, on the basis of which the CIB list is prepared. The impugned
inclusion of name of the petitioner, not being a “defaulter borrower”, as per
the definition of Section-S Ga Ga of the Act, in the CIB report in reference is
illegal and arbitrary and an act of negligence and non-application of mind and
has caused loss and injury to the petitioner.
Quazi Nazibul
Hossain Vs Bangladesh Bank & Ors 16 BLT (HCD)414
Article —102 read with Dhaka Electricity
Supply Company Ltd
Whether employees of Dhaka Electricity Supply
Company Ltd. allowed to avail of the Article 102 of the Constitution.
Before
issuance of the Rule Nisi, the entire share capital of DESCO was held by the
Government and it was fully dependent on the Government for its finance. After
offloading some of its share, DESCO has started ,generating its own finance.
Still the Government has deep and pervasive control over DESCO and a result,
the objectives for which it was created could not be achieved. Therefore, DESCO
is an instrumentality or agency of the Government or in other words DESCO and
the Government are treated as one and the same notwithstanding the facts that
some of its shares have already been offloaded. As a result, the instant writ
petition on the date of its filing was maintainable.
Md. Arif Sultan Vs
Chairman DESA & Ors 16 BLT (HCD)424
Article-102 read with The Tenancy Rules, 1955
Rule-3 1
After
final publication of a record-of-rights and revised record-of-rights, every
entry in such record-of-rights shall be presumed to be correct until such
presumption is proved by evidence to be incorrect. The presumption arising out
of such record-of-rights is of course rebuttable, which could only be possible
in a properly constituted suit. It is also true that such presumption arising
out of a record-of-rights relates to the time when it was prepared and with the
passage of time, as the state of things starts changing and such presumption
also loses its weight. But it must be remembered that a finally prepared and
published record-of-rights takes precedence over the last record-of-rights.
Moreover, the entries made in the CS record-of-rights which was prepared from
1917 to 1922 cannot be expected to be the same in 2002 and to override the SA
record-of-rights and revised record-of-rights. In view of such legal position,
there would be little hesitation to say that the Secretary of the Ministry of
Land acted beyond his authority to Misguide the revenue authority by issuing
the aforesaid circular dated 10.11.02 and such circular must be held to be
illegal, unauthorized and without jurisdiction since it is not backed by any
law and any action taken thereupon must be set aside.
Mrs. Romisa Khanam
& Ors Vs Govt. of Bangladesh & Ors 16 BLT (HCD)461.
