Constitution
Of Bangladesh, 1972
Article—102
In
the absence of any provision for appeal against an order of the District
Co-Operative Officer under Section 18(3)(4) of the Co- Operative Societies
Ordinance, 1984, the High Court Division failed to exercise its jurisdiction
under Article 102 of the Constitution in not disposing of the Appellants Writ
Petition on merit and requiring him to prefer a further appeal to the District
Judge when the first peal was incompetent in the eye of law.
Nani Gopal
Barman. Vs. Bangladesh and Others, 14 BLD (AD) 52.
Article—102
The
questions as to whether the suit was barred by limitation and the impugned
decree by the Artha Rin Adalat was in excess of the Petitioners liability
cannot be decided in a Writ Petition. This may be the defence in the suit and
can, therefore, be properly agitated in the appeal, if not already barred.
Md. Zahirul
Islam Vs. National Bank Limited and others, 14 BLD (AD) 60.
Article—102
Non-consideration
of material facts by the Labour Court, even in an exparte judgment, exposes it
to challenge in a Writ Petition.
In
view of the employees own papers and, particularly, after noting the provision
of law in Section 17(1)(a) of the Employment of Labour (Standing Orders) Act,
1965, the High Court Division ought to have struck down the judgment of the
Labour Court for non-consideration of the evidence on record.
Chittagong
Chemical Complex Vs. The Chairman, Labour Court and another, 14 BLD (AD) 67.
Article—102
Under
Article 102 of the Constitution a writ of mandamus is to issue where a
petitioner has an undisputed constitutional or le. gal right to a property and
he is deprived of the benefit of enjoyment of the property.
A
letter from a Secretary of a particular Ministry of the Government addressed to
other authority to return unutilised excess land to the original owners does
not create any le. gal right in favour of the original owners and failure to
comply with such request is no violation of fundamental right or any legal
right Under such circumstances, the petitioner is not entitled to invoke the
writ jurisdiction for issuance of a writ of mandamus.
Hazi
Aftabuddin and others Vs Bangladesh and others, 17 BLD (HCD) 1.
Article—102
Mere
execution of the lease deed and de. livery of possession of the fishery to the
petitioner prior to the approval of the bid did not create any right of any
kind to the petitioner in the fishery in question.
Hazi Md.
Bashiruddin Vs Bangladesh and others, 20 BLD (HCD) 126.
Ref:
4 BLD (AD) 36—Cited.
Article—102
Locus
Standi—Error of Law
The
petitioner’s interest in the subject matter seems to be bonafide to espouse a
public cause, involving public wrong in as much as there has been a gross
violation of the laws relating to the Societies Registration Act, 1860, the
Foreign Donations (Voluntary Activities) Regulation Ordinance,1978, affecting
the fundamental rights of an indeterminate number of people, including
intending promoters of banking who steadfastly adhere to the laws of
Bangladesh. All these demand the Court to be responsive and to react to the
alleged error of law and the consequent public injury, caused by the issuance
of the impugned letter of no objection’ and the registration of BRAC Bank by
the Bangladesh Bank and the Registrar, Joint Stock Companies respectively.
Professor
Muzaffer Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235
Ref:
9 DLR(SC)178; ITA Nos. 551 and 552 (unreported); Asalata Roy V Society vor the
protection of children of India 51 C.C.J. 272; Anjuman Islamia of Muttara V
Naziruddin, 28 All 384; National Deposit Friendly Society Trustees V Skegnes
All ER. 195 8(2) page 601; Trustees of the Harbour of Dandee Vs D and J Nicol
and others 1915 AC 550; Attorney General Vs. Mercy Railways, 1 Chancery 1907
page 606; Land Allotment Company Case (1894) 1 Ch 81 H.L 617; Guiness V Land
Corporation of Inland Corporation of Ireland 22 Ch D. 349; Salomon’s Case 1897
Appeal Case 22, DHN Food Distributors Ltd. V Tower Hamlets L.B.C (1976) LW.L.R.
852 C.A; I.T. Commr. Madras V Meenakshi Mills Madras, AIR 1967 (SC)819; Delhi
Development Authority V Skipper Construction Co. AIR 1996 (SC) 2005; Civil
Revision 105 (c) & 106(c) 1981 (unreported); United States V Milwaukee
Refrigeration l42Fed. 247 (1905); Dr. Mohiuddin Farrooque Vs. Bangladesh, 49
DLR(AD)1; AIR l989(SC)2 105—Cited.
Article—102
Pourashava
Ordinance, 1977, Section—21
Distribution
of population in 9 wards with a variation of not more than ten percent being a
disputed question of fact and it cannot be decided in writ jurisdiction.
Abdul Mannan
Vs. Bangladesh, represented by the Secretary, Ministry of Local Government
Rural Development and Cooperative and others,. 20 BLD (HCD) 188.
Article—102
Addition of
party in a writ petition
The
scope and purpose of a writ petition are manifestly different from a civil
suit. The principles relating to addition of parties in a civil suit are not
protanto applicable to a writ petition.
Mr. Moudud
Ahmed Vs. Mr. Anwar Hossain Khan, Advocate and others, 15 BLD (AD) 12.
Article—102
Pourashava
Ordinance, 1977, Section—21
The
dispute regarding variation of population cannot be resolved in a writ petition
under Article 102 of the Constitution since it requires adjudication on facts
and on evidence and that the petitioner is not a person aggrieved within the
meaning of Article 102 of the Constitution.
Md. Khalilur
Rahman Vs Government of Bangladesh and others, 20 BLD (AD) 152.
Article—102
Principle of
Natural Justice
Educational
institutions in loco parents of the Students
It
is now well-settled that an educational institution stands in the capacity of
loco parents with that of the students of the institution and their
relationship is that of the guardian and wards. An educational institution is
not required to follow the procedure of a tribunal in taking disciplinary
measures against its students, such as examining witnesses in presence of the
delinquent student and giving him opportunities to cross-examine them.
Since
the petitioner was given opportunity to show cause and he submitted a written reply
and he was personally heard and there being no allegation of malafide against
the invigilator and the Chief Invigilator concerned, it cannot be held that the
principle of natural justice was violated for examining then in the absence of
the delinquent student.
Md. Masum
lqbal Vs The Director of Students Welfare and Member Secretary of the Board of
Residence and Discipline, Bangladesh Engineering University, Dhaka and others,
17 BLD (HCD) 7.
Ref:
1992 BLD(AD) 160-Cited.
Article—102
In
a case where basic facts are disputed and complicated questions of law and fact
depending on evidence are involved, the writ jurisdiction is not the proper
forum for seeking relief. An affidavit is not sufficient to decide the
propriety of the foundation of the petitioners’ title even prima fade and so on
the strength of the possessory title claimed on that basis, which is itself a
disputed matter, the petitioners cannot get the relief they have prayed for.
Mrs. Saju
Hossain Vs Govt of Bangladesh & anr, 21 BLD (HCD) 199.
Ref:
20DLR976 and 979; 28 DLR437; 30 DLR(SC)139 and 155; 46DLR136 and 138— Cited.
Article—102
Industrial
Relations Ordinance, 1969
Sections—2(IX),
(XIV), (XVII), (XVIII), (XX) and (XX VIII)
The
aims and object of Bangladesh Family Planning Association is to render service
to the people as regard matters relating to control of population and allied
matters. The aims and objects of the ‘samity’ are no doubt service but mere
rendering to service does not make an ‘organisation’ or ‘establishment’ and
industry as defined in the Ordinance.
In
the isntant case the petitioner is not an establishment of the kind where
persons employed in it can be said worker as defined in the Ordinance and
consequently ‘union’, if any, by the persons so employed by the ‘samity’ has
been firmed the same is not a union’ of the workers as required by the
Ordinance.
Bangladesh
Paribar Parikalpana Samity Vs Bangladesh Paribar Parikalpana Samity Karmachari
Union & others, 20 BLD (HCD) 261.
Ref:
Kumudini Hospital Vs. Kumudini Hospital Karmachari Union. 45DLR655; Bangalore
Water Supply and Swerage Board Vs. A. Rajappa and others, (1978) S.C.C. 213—Cited.
Article—102
The
High Court Division in exercising jurisdiction under Article 102 of the
Constitution cannot direct the respondents to rectify or alter the particular
clause of the contract in order to make it equal to the contracts entered into
with the other purchasers in respect other tennaries.
Abu Mohammad
Vs Government of Bangladesh & anr, 20 BLD (HCD) 278.
Ref:
Managing Director, Dhaka Wasa Vs. Superior Builders and Engineers Ltd. 51DLR (AD)
56; Associated Provincial Picture Houses Ltd. V Wednesbury Corporation, All England
Law Reports Vol. 2 page 680 AIR 1973SC205 and Ramana Dayaram Shelly Vs. The
international Airport Authority of India and others AIR 1979(SC)1928—cited.
Article—102
The
right to office one holds and the right to pay/salary one draws are vested
during the continuance of the employment. If any action affecting altering or
infringing upon any such right taken not in accordance with law must be struck
down otherwise the protection against arbitrary action available under the
Constitution becomes meaningless.
Md Amirul
Islam and others Vs Thana Nirbahi Officer, Lalpur, Natore and others, 20 BLD (HCD)
369.
Article—102
Locus Standi
Any
wrong doing or invasion of public rights against the aims and objects of
societies does clothe the petitioners with the necessary locus standi to move
the courts of law.
Professor
Nurul Islam Vs Government .of Bangladesh and others, 20 BLD (HCD) 377.
Article—102
Habeas
Corpus
Guardian and
Wards Act, 1890, Section—25
Custody of
minor Children
In
deciding the question of custody of the minor children whether in a proceeding
in the nature of habeas corpus under article 102 of the Constitution or in a
proceeding for guardianship under the Guardians and Wards Act, 1890 the
paramount consideration before the Court is the welfare of the minor and not
the legal rights of the parties under the rules of personal law or statutory
provisions.
The
term “Welfare” is to be read in the largest possible sense and the Court must
take into consideration the true interests of the Children as a benign mother
would be inclined to do. Of course, the moral and religious welfare of the
children should also be considered along with the physical wellbeing.
Abdul jalil
and others Vs. Mrs. Sharon Laily Begum Jalil, 18 BLD (AD) 21.
Ref:
38 DLR(AD)106; (1893)2QBD 232: 55Cal730; 48Mad299; Muslim Law (S.35 1 Mulla’s
Book); Mahommedan Law by Syed Ameer Ali Vol. 11(1976)288; AIR 1982(S.C.) 792;
46DLR399; AIR 1960(SC)93 and Imtiaz Banu A1R1979(All)25—Cited.
Article—02
Scope of
Article 102 of the Constitution in deciding the legality of the order of Court
of Settlement
The
High Court Division exercising power under Article 102 of the Constitution does
not work as a Court of appeal and as such it is not required to make
determination of facts of its own. ft can interfere with the findings of a
Tribunal of facts under its extraordinary jurisdiction under Article 102 only
if it can be shown that the Tribunal has acted without jurisdiction or made any
finding upon no evidence or without considering any material evidence/facts
causing prejudice to the complaining party or it has acted malafide or in
violation of the principle of natural justice. In the absence of any such
conditions the interference by the High Court Division itself becomes an act
without jurisdiction and in the present case this precisely has happened.
Govt. of
Bangladesh Vs. Md. Jalil and others, 15 BLD (AD) 175.
Article—102
The High
Court Appellate Side Rules, Chapter -XI, Rule 39
All
writ petitions filed under Article 102 of the Constitution are disposed of in
accordance with the then Rules of the High Court of Judicature for East
Pakistan at Dhaka governing the procedure in applications for directions,
orders and writs under Article 170 of the Constitution of the then Islamic
Republic of Pakistan, which are still being continued in Bangladesh.
Rule
39 makes it obligatory on the respondents to show cause and if no cause, shown,
the Rule is that the Court shall pass an order that the person or persons
improperly detained shall be set at liberty. To justify the detention of a
detenu the detaining authority is under an obligation to file an affidavit-in
opposition to discharge its burden of proof that the detenu is not being held
in custody without lawful authority or in an unlawful manner.
The
burden of proof that the order of detention is lawful lies on the respondents
and if they failed to rebut on affidavit the material assertions of the
appellant, it is to be held that the respondents have failed to discharge the
burden of proof.
Nasima Begum
Vs. The Government of Bangladesh and others, 15 BLD (AD) 248.
Ref:
Habiba Mahmud Vs. Bangladesh and others, 45 DLR(AD) 89; Shameern Vs. Government
of Bangladesh, 47 DLR(AD)109-Cited.
Article—102
Defence
Saving Certificates and the responsibility of the Commercial Bank selling the
certificate
When
a Commercial Bank sells defence savings certificates to the customers, the bank
acts as an agent of the Government and as such it is under a legal obligation
to make payment to the customers in accordance with the terms and conditions
mentioned in the certificates on presentation of the same to the bank for
encashment on maturity. The bank cannot refuse to encash the certificates on
the ground that the purchaser as one of the Directors of a Company has a loan
liability to it in connection with other transactions.
The
sale of defence saving certificates is an independent transaction of the bank as
an agent of the Government and as such this cannot be connected with any
liability arising out of other transactions.
Mr. Abdus
Salam Vs. Manager, Agrani Bank and others, 15 BLD (HCD) 48.
Article—102
Alternative
Remedy—Whether bars exercise of writ jurisdiction.
Inspite
of an alternative statutory remedy by way of an appeal, an aggrieved person may
invoke the writ jurisdiction of the High Court Division under Article 102 of
the Constitution where the vires of a statute or statutory provisions is
challenged and where the alternative remedy is not efficacious and adequate.
Ahmed
Hussain and 39 others Vs. The Collector of Customs, Customs House, Chittagong
and others, 15 BLD (HCD) 257.
Article—102
Any person
The
word any person’ appearing in Article 102 of the Constitution also includes a
member of the Parliament as the legislature is one of the components and the
main organ of the Republic and as such respondent Nos. 3-5, who are members of
the Parliament. are persons within the meaning of Article 102 of the
Constitution as they are performing their functions in connection with the
affairs of the Republic and consequently this writ petition is maintainable.
Md. Anwar
Hossain Khan Vs. The Speaker of Bangladesh, Sangsad Bhabvan, Sher-E-Bangla
Nagar, Dhaka and others, 15 BLD (HCD) 344.
Article—102
The
Constitution of Bangladesh has its own distinctive characteristics unlike the
constitutions of other countries specially those of India and Pakistan. The
Constitutions of Pakistan and India were the out-come of a peaceful transfer of
power to the dominions created by the British Rulers but ours is an
autochthonous constitution which has its root in the will of the people who won
independence through “a historic war for national independence.
Md. Raufique
Hossain Vs. The Speaker, Bangladesh Parliament and others, 15 BLD (HCD) 383.
Article—102
The
High Court Division exercising its extra-ordinary jurisdiction under Article
102 of the Constitution can interfere with the findings of a tribunal of facts
only when it can be shown that the tribunal had acted without jurisdiction or
made any finding upon no evidence or without considering any material
evidence/fact materially affecting the decision in the case or it acted
malafide or in violation of any principle of natural justice. In the absence of
any of these conditions the interference of the High Court Division with the
judgment of the Court of Settlement on questions of facts is itself an act
without jurisdiction. The appeal is therefore allowed.
Govt. of
Bangladesh Vs. Md. Jalil and others, 16 BLD (AD) 21.
Article—102
Local
Government Elections, Parliamentary Elections and Presidential Election
In
local government elections no step in the election process can be challenged
under Article 102 of the Constitution in the High Court Division unless the
impugned order passed by the authority concerned is coram non judice or it is
afflicted with malice in law. This is equally applicable to Parliamentary and
Presidential Elections under the Constitution the view taken by the Returning
Officer, acting within his jurisdiction, that respondent No. 3 was not
disqualified from contesting the ensuing election, since the order of his
conviction being under appeal have not attained finality, cannot be said to
suffer from malice in law. If an alternative interpretation is possible with
regard to the effect of pendency of appeals against the orders of conviction
and sentence, that may be an issue before the Election Tribunal if an affected
candidate elects to prefer an election petition to the Election Tribunal.
A.K.M.Mayeedul
Islam Vs. Bangladesh Election Commission 16 BLD (AD) 204.
Ref:
A.I.R. 1958 (Assam) 183; 19 DLR 766; 41 DLR(AD)6 8—Cited.
Article —102
Inordinate
delay in filing writ petition
Inordinate
delay in filing a writ petition renders it liable to be rejected as the remedy
provided under Article 102 of the Constitution is meant for a speedy relief
Mizan
Howlader Vs. Bangladesh and another, 16 BLD (HCD) 5.
Article—102
Can
an order of conviction passed by Special Martial Law Court during the
subsistence of Martial Law be challenged in writ jurisdiction?
While
the case of petitioner Muhammad Ullah and 2 others was pending in the court of
the Sub-divisional Magistrate, Sadar, Noakhali the same was transferred to the
Special Martial Law Court No.4, Comilla, by an order of the Zonal Martial Law
Administrator. The Special Martial Law Court tried the accused persons and
convicted them under section 302 of the Penal Code and sentenced each of them
to suffer imprisonment for life by its judgment dated 15.3.1984, which was
subsequently confirmed by the Chief Martial Law Administrator.
The
order of conviction and sentence was challenged in writ jurisdiction mainly on
the ground that the Zonal Martial Law Administrator had no power to transfer
the case to the Special Martial Law Court and as such the trial of the case by
the said Special Martial Law Court and the resultant order of conviction are
illegal and without jurisdiction as being coram-non-judice and malafide.
It
has been consistently held by the Appellate Division that malafide or coram-non-judice
proceedings are not immune from the scrutiny of the Supreme Court
notwithstanding any ouster clause in the Martial Law Proclamation.
Though
normally and ordinarily the order of the Martial Law Court passed during the
subsistence of the Martial Law Proclamation cannot be challenged in the civil
court even after the withdrawal of Martial Law, after it was accorded
constitutional validity, yet since the instant case was transferred to the Special
Martial Law Court by the Zonal Martial Law Administrator having no power to do
so, the trial of the case and the impugned order of conviction and sentence
passed by the Special Martial Law Court must be held to be without jurisdiction
and as such coram-non judice and malafide, the order of conviction and sentence
is quashed.
Muhammad
Ullah (Stenographer) Vs. The Secretary, Ministry of Home Affairs, Govt. of
Bangladesh and others, 16BLD (HCD) 18.
Ref:
33 DLR (AD)154; 34 DLR (AD) 125, 34 DLR(AD)222; 1993 BLD (AD) 17; 5 DLR (FC)
14; (1974) 1 S.C.C. Page 317— Cited.
Article—102
Where
a Tribunal assumes jurisdiction for the purpose of enquiry into a matter or
passes an order and when under the law the decision of that Tribunal is final,
not to be challenged before any Court or authority, the High Court in exercise
of its power of review under Article 102 of the Constitution as well as in its
supervisory capacity would be under a legal obligation to examine whether the
proceeding initiated before the Tribunal was without jurisdiction. If it is
found to be without jurisdiction, the High Court Division would be competent,
in spite of the embargo, to quash the proceedings since in the eye of law such
proceedings never existed.
Mohammad
Nazmul Hossain Vs The State and others, 16 BLD (HCD)287.
Article—102
A
person seeking judicial review of administrative or quasi-judicial action must
show that he has a direct personal interest in the act challenged in a writ
petition. Petitioner No. 1 being an adopted daughter of late Raja Mong Prue Sam
and having being brought up by him as a daughter in the family and she having
being residing in the same mess and building according to the customs,
tradition and practices of the family line, has a prima facie claim to become the
Chief of the Mong Circle. Her application to the authority for being appointed
as the Mong Chief is pending. The order of nomination and appointmen1 of
Respondent No. 5 as the Mong Chief, though pending, must be held to have been
passed without any lawful authoirty and of no legal consequences.
Rajkumari
Unika Devi Vs. Bangladesh, 16 BLD (HCD) 408.
Ref:
43DLR (AD) 126 (127); PLD1978 Pagel5l; All England Report 1981 Page 94 (96);
(1897) L Q B 498; 29 DLR 188; IIDLR (SC) 140-Cited.
Article—102
Muslim
Marriages and Divorces (Registration) Rules, 1975, Rule — 33(3)
Nikah
Registrar Association
When
the Government in exercise of its discretion gives approval to a Nikah
Registrars Association on being satisfied that it enjoys the majority support
of the Nikah Registers of the country there remains little scope for the High
Court Division to interfere with the said discretion while exercising power
under the writ jurisdiction.
The
High Court Division cannot direct an authority to exercise its discretion in a
particular manner not expressly required by the statute. The Court can only
exercise its discretion according to law and not capriciously and arbitrarily.
Registrars
and Kazi Samity Vs. The Ministry of Law, Justice and Parliamentary Affairs,
Government of Bangladesh, 16 BLD (HCD) 425.
Ref:
SCR Vol-C-3 (1952) Page 583; AIR. 1919 (SC)1453; A.I.R. 1979 (SC) 1596; SCC
(1991)Vol-3 Page 239; SCR 1954 Page 883;1 BLD(AD)103; 44 DLR (AD) 179—Cited.
Article—102
Recognized
Non-Government Secondary School Teachers (Board of Intermediate and Secondary
Education, Dhaka)Terms and conditions of Service Regulations, 1979
Regulations—2(a)26 and 27
Regulation
26 provides the age of retirement. It also provides that a teacher may be
permitted to get his service extended by the appointing authority till he
attains the age of 60 years. This extension as of right is not a right
guaranteed under any law as a fundamental right and it is subject to conditions
laid down in Clauses(a) to (e) of Sub-Regulation (3) of Regulation 27. Extension
of period of the service contemplated in Regulation No. 26 is merely a
privilege and not a right as enumerated in Clause (1) of Article 102 of the
Constitution. In the present case the petitioner having attained the retiring
age the right of extension for continuing in service on the ground of a
resolution is not a fundamental right to be enforced in writ jurisdiction.
Mir Abu
Bakar Siddique Vs. The Deputy Commissioner, 16 BLD (HCD) 522.
Article—102
Under
Article 102 of the Constitution no writ lies against the officer of a company
who was not performing functions in connection with the affairs of the Republic
or a local authority.
In
the instant case the impugned order of termination of service was passed by
respondent No. 3 not performing functions in connection with the affairs of the
Republic or local authority and as such his writ petition is not maintainable
in law.
Md. Abdur
Rahman Vs. Secretary, Ministry of Industries, People’s Republic of Bangladesh,
Bangladesh Secretariat, Dhaka, 16 BLD (HCD) 524.
Ref:
1990 BLD 153; 18 DLR 299; 31 DLR (AD) 234; 40 DLR (AD) 45; 36 DLR (AD)
282—Cited.
Article—102
‘Any
person aggrieved’ and ‘Sufficient interest’
The
expression ‘any person aggrieved’ approximates the test of or if the same is
capsulized, amounts to, what is broadly called, ‘sufficient interest’. Any
person other than an officious intervener or a wayfarer without any interest in
the cause beyond the interest of the general people of the country having
sufficient interest in the matter in dispute is qualified to be a ‘person
aggrieved’ and can maintain an action for judicial redress of public injury
arising from breach of some public duty or for violation of some provision of
the Constitution or the law and seek enforcement of such public duty and observance
of such constitutional or legal provision. The real test of ‘sufficient
interest’, of course, essentially depends on the co-relation between the matter
brought before the Court and the person who is bringing it. [Per A.T.M. Afzal,
C.J]
Dr.
Mohiuddin Farooque Vs Bangladesh and others, 17 BLD (AD) 1.
Article—102
Privilege is
no vested right
It
is well settled that if an order is passed by any authority in favour of a
person and the same is acted upon by him a vested right is created in favour of
that person and the same cannot be taken away from him without any lawful
excuse. But a privilege granted to a person, which was not availed of by him,
cannot be equated with any right not to speak of a vested right and he cannot
claim it as a matter of right.
M/s.
Janapriya Rice Mills Ltd. Vs Bangladesh and others, 17 BLD (HCD) 63.
Article—102
Principle of
Natural Justice
The
petitioner is the Nikah Registrar for the word constituting Dhaka Cantonment
Board under a valid licence granted to him under section 5(2) of the Muslim
Family Laws Ordinance, 1961 by the Dhaka Cantonment Board. The impugned order
by which some areas were excluded without affording him any opportunity to show
cause as to why those areas should not be excluded from his jurisdiction and that
without assigning any reason is evidently illegal and without jurisdiction,
being violative of the principle of natural justice.
Md. Lutfur
Rahman, Marriage Registrar and Kazi, Kazi Office, Tejgaon Biman Bander Sarak,
Dhaka Vs Ministry of Law and Parliamentary Affairs, Govt. of Bangladesh and
another, 17 BLD (HCD) 192.
Article—102
Inordinate
delay in filing writ petition
It
appears from the writ petition that the petitioner has come before this Court
after twelve years. While invoking the extraordinary jurisdiction of this Court
the petitioner is required to be vigilant and not indolent. Inordinate delay is
a good ground for rejecting a writ petition.
Mr. Abdul
Hakim Vs Govt. of Bangladesh and others, 17 BLD (HCD) 317.
Article—102
In
view of the direction of the Bangladesh J Bank as evidenced by Annexure-Y’ it
appears that the certified invoice is necessary but there is nothing in the
circular to suggest that the certification of invoice has to be obtained by the
exporter. The invoice like other import documents is to be submitted by the
importer and the importer having not submitted this document along with the
Bill of Entry, the question of certifying the original invoice does not arise
and as such there is no scope for directing respondent No. 3 to certify the
original invoice by the Court.
PKS Limited,
represented by Mr. Rainesh Chandra Saha Vs Chairman, National Board of Revenue,
and others, 17 BLD (HCD) 321.
Article—102
Martial Law
Regulation No.1 of 1982, Regulation—3(4)
The
settled law is that acts done or pur. ported to have been done in exercise of
power given by the Martial Law Regulation or Orders or even the purported
exercise of those powers which suffers from defect of jurisdic. tion or is
malafide are amenable to the judicial review of the High Court Division not
with- standing all protections provided for in the 4th Schedule of the
Constitution. The review authority acts illegally and in excess of its power in
converting judgment of acquittal into one of conviction. It is consequently
declared to have been passed without any lawful authority and no legal effect.
Abdur Rahman
Vs Govt. of Bangladesh and others, 17 BLD (HCD) 332.
Ref:
45DLR (AD)1; 33 DLR(AD)154; 33 DLR (AD) 141; AIR 1958 (Madhya Pradesh)
203—Cited.
Article—102
Monetary
compensation
Though
there is no specific provision for awarding cost and compensation under Article
102 of the Constitution. yet following a long drawn tradition, custom or
discretion the High Court Division in every writ case passes judgment either
with cost or without cost. Since this Court exercises its special original
jurisdiction and since this Court has got extraordinary and inherent
jurisdiction to pass any order as it deems fit and proper this Court has the
power to award cost of the case as well as monetary compensation considering
the facts and circumstances of each case.
Bilkis
Akhter Hossain Vs Bangladesh and others, 17 BLD (HCD) 395.
Ref:
‘Constitutional Law of Bangladesh’—By Mahmudul Islam, at page 377, Para 5-20;
1978(2) A.E.R. 670; AIR l983(SC) 1086; A.LR. 1986 (SC) 494; A.I.R. l991(SC)
2216; A.I.R 1993 (SC) 1960; AIR l996(SC) 2426; 18 DLR (SC) 214; 2 1 DLR (SC)I;
35 DLR(AD) 72; SAARC Law Journal, publication of SAARC Law, the Association of
Persons of the Legal Committees of the SAARC Countries, September, 1993,
Inaugural Issue, page-88;-—Cited.
Article—102
Alternative
Forum
The
petitioner having had approached the alternative forum for the redress of his
grievance, the authority is competent to make necessary inquiry as to
allegations of demand which according to the petitioner has no existence in the
eye of law. The demand raises a question of disputed amount and a total denial
of revenue, it is hardly possible in exercise of writ jurisdiction to ascertain
a disputed question of fact which requires to be disposed of by the department,
that is by the appellate authority, and as such the writ petition is not
maintainable.
Asian
Tobacco Company of Akij Chamber, 73, Dilkusha Commercial Area, Dhaka Vs The
Assistant Commissioner, Customs Excise and VAT, Tejgaon Division, Banani, Dhaka
and others, 17 BLD (HCD) 413.
Article—102
Alternative
Remedy—Writ Petition not maintainable
It
is well settled that when any statute provides a special remedy against
anything done or any action taken under the said statute, party affected by
such thing or action is to seek remedy provided under that statute. Filing of
writ petition on flimsy grounds without seeking the remedy provided under the
law is not only harassing the adversary but also wasting Court’s valuable time.
Moulvi
Textiles Ltd Vs General Certificate Officer, Moulvi Bazar and another, 17 BLD (HCD)
418.
Article—102
In
the absence of any expert opinion based on chemical analysis to conclusively
prove that the disputed imported goods is Acetylene Carbon Black and not Coal
Powder the Appellate Tribunal was wrong in holding that the goods in question
was Acetylene Carbon Black.
M/s ELMA
Trading House Vs Syed Mansurul Hoque & ors, 17 BLD (HCD) 432.
Article—102
Since
the then Government in 1972 under the Prime Minister ship of Banga Bandhu
Sheikh Mujibur Rahman had decided unequivocally to absorb the Mujibnagar
Employees in different services of Bangladesh, there should not be any reason
to frustrate the said decision by not absorbing the Mujibnagar Employees in the
services of the Republic of Bangladesh. So, it is desirable that there should
not be any delay on unreasonable causes in the matter of absorbing those
Mujibnagar Employees.
Md. Abdul
Gafur Mandal and others Vs The Secretary, Ministry of Establishment, Government
of the People’s Republic of Bangladesh and others, 17 BLD (HCD) 453.
Ref:
1 BLD (AD) 9—Relied upon.
Articles—102
and 152
Since
there is no question of violation of any fundamental right in formulating the
guidelines by the BSRS providing for interview and the impugned administrative
circular is not “Law” within the meaning of Article 152 of the Constitution,
the instant writ petition is not maintainable.
Md. Junnur
Rahman Vs. Bangladesh Shilpa Rin Sangstha (BSRS), 17 BLD (HCD) 488.
Ref:
44 DLR(AD)111; A.I.R.1981 (SC) 487; 47 DLR 81; 36 DLR 71—Cited.
Article—102
Petitioner’s
daughter Hasina Begum aged about 15 years was missing since March, 1992. In
November, 1996 it was learnt that she was being lodged in a Women’s Home at
Lilua. West Bengal, India. She was a victim of atrocities and violence
perpetrated by women traffickers. Her father approached the Government of
Bangladesh for bringing her home but to no avail. The High Court Division
directed the Secretary, Ministry of Foreign Affairs, to initiate appropriate
actions at the state level for effecting repatriation of victim Hasina be- gum
and to inform the developments to the petitioner from time to time.
Mr. Abdul
Gafur Vs. Secretary, Ministry of Foreign Affairs, Govt. of Bangladesh and
another, 17 BLD (HCD) 560.
Article—102
A
public park is necessary for protecting health and hygiene of the inhabitants
of the area providing open space with garden. Trespassers cannot be allowed to
occupy the same on the plea of their indispensible accommodation to protect
their lives to the determent of health and hygiene of the inhabitants of the
area and the Corporation is under legal obligations to evict such unauthorised
occupants from the park.
Gias Uddin
Vs. Dhaka Municipal Corporation, 17 BLD (HCD) 577.
Article—102
Dhaka
University Order, 1973, Article—52
A
person affected by an action of the University authority will be considered as
an aggrieved person under Article 52 of P.O. 11 of 1973 and such a person will
have a right to challenge the order of the University authority by way of an
appeal before the Vice Chancellor.
In
the instant case the Dean of the Faculty of Medicine being the officer of the
University within the meaning of Article 52 of P.O. 11 of 1973, the remedy
provided under Article 52 is equally efficacious. It provides for enquiry by a
Commission consisting of such persons who need not be officers of the
University and as such the writ petition is not maintainable.
Professor
(Dr) M.A. Hadi Vs Bangladesh and others, 17 BLD (HCD) 631.
Ref:
44 DLR(AD)305—Relied upon.
Article—102
For
any alleged breach of contract the remedy lies in the Civil Court because it
involves determination of questions of fact and as such the view taken by the
High Court Division is perfectly in accordance with the principles governing
the writ jurisdiction.
Md. Nuruddin
Vs Manager, Sales (C & B), Zone—4 of Titas Gas Transmission and Distribution
Company Ltd and ors, 18 BLD (AD) 273.
Article—102
Locus standi
The
lake is situated just by the side of the residential area of the Gulshan Model
town and this lake is in fact beautifying the area and environmental advantages
giving to the lessees of the area by this lake. So, the petitioner has got the
locus-standi and she is an aggrieved person in view of the fact that if the lake
is filled up, the lessees of the entire Gulshan Model Town will be affected.
Since she is one of the lessees and since the entire area will be affected by
the action of respondent No. 1, she has got locus-standi as an aggrieved person
to file the writ petition.
Mrs. Parvin
Akhter Vs. The Chairman, Rajdhani Unnayan Kartipakkha and others, 18 BLD (HCD) 117.
Ref:
17 BLD(1997)(AD)1-relied
Article—102
The
petitioner is moving this application for her personal interest as well as for
the interest of all the residents of the Gulshan Model Town who are, in fact,
enjoying the greeneries and the Gulshan Lake with its environmental facilities.
Since it relates to common interest of all the persons of the Gulshan Model
Town Area, the petitioner is an aggrieved person and has got the locus standi
to file the writ petition:
Mrs. Parvin
Akhter Vs. The Chairman, Rajdhani Unnayan Kartipakkha and others, 18 BLD (HCD) 117.
Article—102
Ordinarily
the High Court Division under Article 102 of the Constitution will not interfere
where there equally effective and efficacious remedy available to the
petitioner. Yet
the
existence of an alternative remedy is not always a bar to a writ petitioner
when circumstances of a particular case may demand it is the interest of
justice.
Mrs. Jebon
Nahar and others Vs. Bangladesh and others, 18 BLD (HCD) 141.
Ref:
30 DLR3 36: 46DLR 130-relied upon.
Article—102
The
right to enforce a fundamental right is another fundamental right which gives
the petitioner right to move the High Court Division even though his
application was rejected by the Court of Settlement on the ground of
limitation.
Mrs. Jebon
Nahar and others Vs. Bangladesh and others, 18 BLD (HCD) 141.
Article—102
Application
in election disputes
Right
to seek election to a Union Parishad is neither a common law right for the
enforcement of which a civil Court may come forward nor is it a constitutional
right such as fundamental right for the enforcement of which writ jurisdiction
can be invoked. Right or liability created thereunder. Writ Jurisdiction can be
invoked only under exceptional circumstances such as the ground of coram-non-judice
or malice in law.
Mostafa
Kamal Vs. The Chief Election Commission and others, 18 BLD (HCD) 152.
Ref:
1DLR(SC)516; 4IDLR(AD)68; 42 DLR (AD)137—Cited.
Article—102
In
the absence of any legal right which can be judicially enforced by the
petitioner and the absence of any material on record to show that the authority
concerned acted arbitrarily and unfairly and resorted to discrimination in not
according permission to the petitioner to have their company registered for
carrying on the business of insurance, the instant writ petition under Article
102 of the Constitution seeking a direction upon the Controller of Insurance to
accord such permission is not maintainable in law.
N.A.
Choudhury Vs. Controller of Insurance and others, 18 BLD (HCD) 199.
Ref:
AIR 1979(SC)1628; AIR 1984 (SC) 482; AIR 1978(SC)597; AIR 1957(SC) 397: AIR
1960(AP)123; (1914)3K.B. 1161; (1976) IQ. B.629; (1982)3All E.R. 141: 17DLR
(SC) 550: 19 DLR (SC)516; A.I.R. 1984 (SC) 11g2; 39 DLR (AD)85; 1981 BLD
(AD)103; 44 DLRI44:—Cited.
Article—102
Bangladesh
Institute of Technology Ordinance, 1986, Section—9(2)(a)
Section
9(2)(a) of the Ordinance authorises the Board of Governors to take decision
with regard to the administration and working of the Institute. Where a
decision of the Board is taken on the strength of section 9(2)(a) of the
Ordinance on questions of policy relating to the administration and working of
the Institute, the same does not suffer from want of authority and as such
decision impugned in the instant petition cannot be declared to have been
passed without lawful authority.
Professor
A.K. Rezaul Karim Vs The Council of Institute and others, 18 BLD (HCD) 557.
Article—102
Violation of
natural justice
The
petitioner was given promotion in the higher cadre post by a decision of the
Selection Committee and he served in that capacity for quite a long period
without any allegation of inefficiency or negligence of duty, the petitioner,
therefore, acquired a vested right to retain his higher cadre post. The
impugned order removing him from the post without even issuing any show cause
notice upon him and without assigning any reason is patently arbitrary and
illegal.
M.A. Ban Vs.
The Chairman, Bangladesh Water Development Board (P. W.D.B) and others, 18 BLD (HCD)
333.
Article—102
The
relief sought for is based on not totally undisputed fact and ex-facie not
incontrovertible with reference to the number of sex workers and their respective
residence with particulars about holding number and area. The petitioner made
an attempt to obtain relief under Article 102 upon a disputed question of fact.
There is no undisputed statement that the police authority participated in the
process of eviction of the sex-workers from their houses or place of business.
Rather from the statements made in the writ petition and the
affidavit-in-opposition it appears that the instant writ petition is founded on
vague and contradictory statements and as such the petitioner cannot invoke
Article 102 of the Constitution. [Per A.M. Mahmudur Rahman, J.]
Sultana
Nahar, Advocate Vs. Bangladesh and others, 18 BLD (HCD) 363.
Article—102
Negligence
of duty by Police Officer
Abul
Hassem, son of late Habibullah was arrested by police in place of absconding
accused Abul Hassem, son of late Habibur Rahman as a result of which the former
was being held in custody to serve out the sentence of imprisonment for life
due to sheer negligence of the police officer in executing the warrant of
arrest. This has been viewed by the High Court Division as a dangerous
dereliction of duty by a public servant causing immense sufferings to an
innocent citizen. A cost of Tk. 20,000/- was awarded to the detenu as
compensation and the said cost was to be realised from the delinquent police
officer.
Md.
Shahanewas Vs. Government of Bangladesh and others, 18 BLD (HCD) 337.
Article—102
Jurisdiction
of Writ Court
The
view of the High Court Division that the writ court is not competent to
interfere with an administrative order is totally wrong. No action detrimental
to the vested right of an individual or corporate body can be taken except in
accordance with law.
Brahamanbaria
Pourashava Vs Secretary, Ministry of Land Reforms, Government of Bangladesh and
others, 19 BLD (AD) 87.
Article—102
Alternative
statutory remedy
Abandoned
Buildings (supplementary provisions) Ordinance, 1985, Section—7
In
principle where an alternative statutory remedy is available a writ petition
under Article 102 shall not be entertained to short- circuit the statutory
procedure. But there may be exceptional situations where, inspite of statutory
provision of an alternative remedy, the High Court Division may find that the
alternative remedy is not, equally efficacious.
In
the instant case the learned Judges of the High Court Division appear to have
misconstrued and misconceived their jurisdiction under Article 102 in holding
that the writ petition is maintainable, where the writ petitioner had already
availed of the special remedy provided under section 7 of the Ordinance.
Bangladesh
Vs Anwar Ahmed and others, 18 BLD (AD) 282.
Ref:
1991 BLD(AD) 227—relied upon.
Article—102
Disputes
question of fact
Where
in a case the petitioner himself denies the allegations that he is a defaulter
and the news published shows that he is a defaulter, the denial of the
assertion gives rise to a disputed question of fact relating to money due. When
such a disputed questions is raised before the High Court Division in a writ
petition under Article 102 of the Constitution the High Court Division refuses
to go into disputed questions of fact which can only decided in an appropriate
suit.
MIs. Stadmax
Ltd. Vs. General Manager, Credit Information Bureau, Bangladesh and others, 18
BLD (HCD) 419.
Article—102
Co-operative
Societies Ordinance, 1984, Section—86
Section
86 of the Co-operative Societies Ordinance does not attract election disputes
and as such the Arbitrator acted illegally and without jurisdiction in making
the impugned award.
Syed
Rahmatur Rub Irtiza Ahsan Vs. The Government of People’s Republic of Bangladesh
and others, 14 BLD (HCD) 389.
Article—102
Article
102 of the Constitution makes only an aggrieved person entitled to file an
application for enforcement of any of the fundamental rights conferred by Part
III of the Constitution or when such person is aggrieved by an order or
proceeding taken against him by an authority or person performing any function
in connection with the affairs of the Republic or of a local authority.
Mian Ahmed
Kibria Vs Govt of Bangladesh and ors., 18 BLD (HCD) 460.
Article—102
Bank Company
Act, 1991, Section—17
The
High Court Division simply does not have the jurisdiction to decide the
validity of a notice under section 17 of the Act upon adjudication of the
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
lies before it is whether the notice under section 17 of the Act is legal or
not.
Md. Saiful
Alam alias Masudul Alam Chowdhury Vs Bangladesh Bank and others, 19 BLD (AD) 249.
Article—102
The
subject matter of Article 70 is within the exclusive domain of the Election
Commission and the Speaker has neither any constitutional authority nor any
statutory authority to thwart a decision by the Election Commission by
including the subject matter in a parliamentary proceeding and by pre-empting
any decision under the cover of a ruling which will be a usurpation of the
constitutional power of the Election Commission.
The
Secretary, Parliament Secretariat, Dhaka Vs Mr. Khandker Delwar Hossain and
others, 19 BLD (AD) 276.
Article—102
Respondent
No.1-petitioner and the other respondents have purportedly acted under a
statute and have discharged a statutory obligation and therefore the impugned
notices are challengeable in the writ jurisdiction.
Government
of Bangladesh represented by the Secretary Ministry of Land, Dhaka Vs MIs. East
West Property Development Private Ltd. and others, 19 BLD (AD) 300.
Article—102
Under
Article 102 of the Constitution the jurisdiction of the High Court Division can
prominently be invoked to correct any error of law or any transgression of
jurisdiction by any person or authority of the State if the order passed is
repugnant to any provision of the Constitution. The Scheme for the distribution
of powers between various organs or authorities of State to the superior
judiciary, as laid down in the Constitution allots to the judiciary the very
responsibility of containing all the organs and authorities of the State within
their jurisdiction.
Khondker
Delwar Hossain Vs The Speaker, Bangladesh Jatiya Shangshad (Parliament), 19 BLD
(HCD) 45.
Article—102
When
the Parliament enacts any law or and any provision of any enactment which does
not offend any provision of the Constitution, such law or amendment cannot be
said to be ultra vires of the Constitution. In taxing statute the High Court
Division by invoking its extraordinary jurisdiction conferred under Article 102
of the Constitution should not convert it into an appellate authority where an
aggrieved person has got adequate remedy by way of appeal, review etc. under
the Act itself.
Dandy Dying
Limited Vs. Secretary, Ministry of Finance and others, 19 BLD (HCD) 67.
Ref:
M/s Bengal Development Corporation Ltd. Vs. Government of Bangladesh and others
(W.P. No. 6370 of 1997)—Cited.
Article—102
Penal Code,
1860, Sections —76 and 79
The
question of protection under section 76 and 79 of the Penal Code can be raised
by way of legal defence against prosecution of the petitioners but such right
of protection is no fundamental right of the petitioners as envisaged under
Part III of the Constitution.
A.K.M.
Qudratullah Mia and others Vs. Government of Bangladesh and others, 19 BLD (HCD)
109.
Ref:
34 Crl.L.J.528; 28DLR(AD)181.
Article—102
Customs Act,
1969, Section—196A
Mere
allegation of violation of the provisions of law cannot give rise to any cause
of action for filing a writ petition when there is forum for seeking remedy
against the impugned order.
Zahur Ahmed
Vs The Commissioner of Customs, Chittagong and others, 19 BLD (HCD) 163.
Article—102
Simply
because the petitioner was the highest bidder and when no allotment letter or
any notice was served on him to deposit money, he cannot claim any legal right
and canvas for any legitimate impression created in his mind for acquiring
something which is also a disputed question of fact and as such the writ
petition is incompetent.
Dr. Md.
Habibullah Vs Rajdhani Unnayan Kartipakha & ors, 19 BLD (HCD) 231.
Ref:
AIR 1993(SC)1601; AIR 1985 (SC) 1147; AIR 1986(SC)1527; 39DLR (AD) 85; 43DLR
218—Cited.
Article—102
Contractual
right cannot be enforced against public functionary
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.
ARK
Associates Ltd. and others Vs. The Chairman, Board of Directors, Dhaka Water
Supply and Sewerage Authority and others, 19 BLD (HCD) 349.
Article—102
Alternative
Remedy
For
the violation of an inchoate right by executive exercise in a dispute raised in
an ordinary commercial contract to. which a statutory body is a party, the
petitioners remedy, lies in a civil suit and not in writ jurisdiction.
ARK
Associates Ltd. and others Vs. The Chairman, Board of Directors, Dhaka Water
Supply and Sewerage Authority and others, 19 BLD (HCD) 349.
Ref:
27 DLR647; AIR 1982(Cal)19; 32 DLR (AD) 223; 37 DLR(AD)1 17; 39 DLR78; 40 DLR
(AD)62; 47DLR 515; DFD, AIR 1973 (SC) 205; AIR 1979(SC) 1628; 48DLR (AD)20;
39DLR(AD)85—Cited.
Article—102
Judicial
Review
Where
a contract is entered into by the State and or by a statutory authority for the
performance of statutory duty, any breach of term of such contract is amenable
to judicial review by the High Court Division.
Q C Shipping
Limited and another Vs Chittagong Port Authority and others, 19 BLD (HCD) 5O1.
Ref:
39DLR(AD)85; 48DLR(AD)20; 42 DLR(AD)126; 14DLR(SC)102; I4DLR (SC) 54;
1975(SC)118; 1977(SC)1496 and State of Punjab vs. Balbir Singh and ors, at page
1717—Cited.
Article—102
Where
a notice is passed without lawful authority and where the respondents also
realised the rates without any legal sanction for refund of such illegally
realised money it is within the province of the High Court Division to order
writ of mandamus upon the respondents directing refund of money illegally
collected.
Q C Shipping
Limited and another Vs Chittagong Port Authority and others, 19 BLD (HCD) 5O1.
Ref:
1963(SC)928—retied upon.
Article—102
Since
the Registrar of Trade Union has no authority to adjudicate which one of the
parallel committee valid and legal one, the impugned letter is mere statement
of fact till same should not be allowed to remain in force.
Al Haj
Rahmat Ullah Chowdhury and another Vs The Registrar of Trade Union, Government
of the Peoples Republic of Bangladesh, Labour Directorate and others, 19 BLD (HCD)
510.
Article—102
Customs Act,
1969, Section—25
Government
having the power to determine the normal price of a car of Japanese origin could
for the purpose rely on the “Yellow Book” and “Silver Book” which are authentic
books published by an organisation in Japan recognized by the government of
Japan.
Moqbul
Hossain Vs Chittagong Port Authorities and ors, 19 BLD (HCD) 512.
Article—102
In
order to obtain a relief under Article 102 of the Constitution the petitioner
should come with an undisputed claim to invoke the power under Article 102.
Al-Helal
Rice Mills Ltd. Vs Bangladesh Shilpa Rin Sangstha, 19 BLD (HCD) 550.
Article—102
The
propriety of a resolution passed by the Managing Committee of a Non Government
School cannot be called in question in writ jurisdiction but the required
approval given to the said resolution by the Board, without which it does not
take effect, is amenable to such jurisdiction.
Din Mohammad
Vs. Government of Bangladesh and others, 14 BLD (AD)142.
Article—102
A
writ petition challenging an order of the Chief Martial Law Administrator filed
after the lifting of the Martial Law is quite maintainable in law.
A
review application pending before the Chief Martial Law Administrator is
required to be disposed of, after the lifting of the Martial Law, by the
President in the light of decision of the case of Mahtabuddin Ahmed, reported
in 42 DLR(AD)214.
Government
of Bangladesh, represented by the Secretary, Ministry of Posts, Telegraphs and
Telephones, Government of Bangladesh Vs. Sheikh Md. Ali Asgar, 14 BLD (AD) 219.
Article—102
It
gives power to the High Court Division to issue certain orders or directions in
the nature of mandamus in case of any statutory violation by the government
functionaries.
Internal
secret order communication issued by one government functionary to another
praying for preventive detention of certain persons, which is yet to the
followed by any concrete action does not come within the purview of exercise of
jurisdiction in the nature of mandamus under Article 102 of the Constitution.
Mohammad Ali
Vs. Government of People ‘s Republic of Bangladesh, 14 BLD (AD) 223.
Article—102
The
essential question before the High Court Division being as to whether a
Government authority can decide matters which are pending in a civil suit, in
which the Government is a party, and the answer being no, the High Court
Division missed the central point and shirked its responsibility on a mistaken
view that the matter involved disputed questions of fact and dismissed the writ
petition on such a view.
Syed
Mohammad Salem Azam and others Vs. The Secretary, Ministry of Works, Government
of Bangladesh and others, 14 BLD (AD) 259.
Article—102
Public
Servants Retirement Act, 1974, Section—4
A
public servant shall retire from service on the completion of the fifty seventh
year of his age; Provided that the Government of any authority authorised by
the Government in this behalf may extend the service of public servant who is a
physician or teacher beyond the date of his retirement for a period not
exceeding three years and such extension shall be subject to such conditions,
if any, as may be prescribed by rules made under the Act.
Authority
had power to extend the service of the petitioner if authorised by the
Government but it appears it has not been done and they have taken resort to
section 4 of the Act.
Md Habibur
Rahman Khan Vs Bangladesh and others, 19 BLD (HCD) 575.
Article—102
Abandoned
Building (supplementary provisions) Ordinance, 1985, Section—9(2)
Corum-non-judice
Court
of Settlement shall consists of a Chairman and two other Members who shall be
appointed by the government. The disposal of the case by the Chairman along
with one member only certainly makes the Settlement Court corum-non-judice.
Case remanded to the Court of Settlement for hearing afresh on merit in
accordance with law.
Secretary,
Ministry of Public Works Vs Court of Settlement (1St Court), Bangladesh Abandoned
Buildings, 19 BLD (HCD) 583
Ref:
43 DLR(AD)13—relied upon.
Article—102
Evidence
Act, 1872, Section—114(e)
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(e) of the Evidence Act 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 price of a particular
importer 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. If
there are no such materials in the writ petition itself the High Court Division
should not entertain the petition and dismiss it in limine.
If
the writ petitioner annexes relevant and reliable documents in support of its
claim that the impugned fixation of tariff value is grossly inflated and is
abnormally higher than the prevalent international market price the High Court
Division will issue a Rule Nis and may or may not pass an interim order keeping
in view the decision reported in 50 DLR (AD) (1998) 129.
Mustafa
Kamal, Proprietor of M/s. Kamal Trading Vs The Commissioner of Customs and
others, 20 BLD (AD) 1.
Article—102
A
discretion once exercised without any opposition will not be interfered with
simply on the ground of availability of alternative efficacious remedy
especially when the decision sought to be appealed from does not suffer any
infirmity of law.
University
of Dhaka and another Vs Professor A K Monwaruddin Ahmed, 20 BLD (AD) 28.
Ref:
Controller of Examinations Vs. Mohammad Mahiuddin, 12 BLD (AD) 309—Cited.
Article—102
Jurisdiction
of writ court
The
High Court Division in its writ jurisdiction is not a Court for the recovery of
money and has no jurisdiction to give a direction for payment of a particular
amount of money to the writ-petitioner, unless the amount claimed is both an
admitted amount as well as a statutory payment. The High Court Division
exceeded its jurisdiction in passing the impugned order.
Chairman,
Bangladesh Water Development Board and another Vs MIs. Shamsul Huq and Co. Ltd.
and others, 20 BLD (AD) 41.
Article—102
Representation
of People Order, 1972, Article—16(4)
Allocation
of election symbols
Election
dispute at the intermediate stage of the process of election does not come
within the writ jurisdiction of the High Court Division except on the grounds
of coram non judice or want of
jurisdiction or malice in law.
The
political party has the right to the protected symbol to be allocated to its
own candidate in by-election. Withdrawal of candidature of candidate of a
particular political party does not change the legal position and give even to
the lone candidate of a rival party a walkover. The General Secretary of a
political party has locus standi to contest the writ or appeal even after the
withdrawal of the candidature by the candidate nominated by that party in order
to safeguard its party interest.
Even
when a political party which obtained a protected symbol before the General
Election held on the 12th June, 1996 decides not to take part in a by-election,
the Returning Officer is still under a cautionary direction of the Election
Commission to scrutinize the written documents of a candidate if he presents
himself as a nominated candidate of a political party which took part in the
General Election held on the 12° June, 1996. It is the case of the appellant
that it did not nominate the writ petitioner as its candidate for the by
election in question and therefore it has a sustained interest in its protected
symbol “Langal”. If the decision of the High Court Division in the impugned
judgment is to the effect that the symbol “Langal” will be allotted to a person
who has not been nominated by the appellant as its candidate in the by-
election in question, then that political party, namely, the appellant, has
every locus standi to prefer this appeal and prosecute the same in order to
safeguard and protect its claimed protected symbol.
If
the candidate who has withdrawn does not present himself on the date of
allotment of symbols and/or if his political party does not oppose the
allotment of the symbol “Langal” to the lone candidate remaining on the scene,
the lone candidate will not get a walkover. The Returning Officer will still
have to scrutinize the political credentials of the candidate on the basis of
written documents produced by the lone candidate. If he has filed only the
letter of the Secretary General of his party, the Returning Officer is not in a
position to grant him the symbol “Langal” as he has also a similar letter from
another Secretary General of the same party in his possession. He has to be
satisfied from the written documents of the lone candidate or if contested or
if opposed by the rival candidate or his party, then from both sides” written
documents as to which is the political party known as Jatiya Party which was
allotted the symbol “Langal” in the general election held on the 12° June,
1996. The Returning Officer rejected the symbol “Langal” to respondent No. 1 on
the ground that he failed to produce papers to show that he was a candidate
nominated by the Jatiya Party which contested the General Election held on the
12th June, 1996 with the symbol “Langal”. He has perfectly and correctly
understood the direction of the Election Commission. It is the High Court
Division which misconstrued the direction by holding that since respondent No.
1 expressed his preference for the symbol “Langal” and a letter of Mr. Anwar
Hossain Manju was in favour of allocating the said symbol to respondent No. 1,
and as no one from the Jatiya Party represented by Mr. Naziur Rahman Manju
opposed the prayer of respondent No. 1, the Returning Officer acted illegally
in allocating the symbol of “Butterfly” to respondent No. 1. The High Court
Division has not even noticed the directions of the Election Commission and has
gone astray in laying down the path to be followed by a Returning Officer while
deciding a thorny and sensitive matter of allocating a protected symbol.
Jatiya Party
represented by Md. Moidul Islam, Joint Secretary General Vs Motassim Billah and
others, 20 BLD (AD) 69.
Article—102
Pendency
of civil suit and appeal-Writ petition not maintainable Self-same property
cannot be the subject- matter of both writ petitions and the pending suit and
appeal between the parties.
Shahajadi
Begum Waqf Estate. Vs Secretary, Ministry of Communication (Roads and Railway),
Dhaka, Bangladesh and another, 21 BLD (AD) 59.
Article—102
The
jurisdiction of the High Court Division under Article 102 of the Constitution
cannot be invoked except on the very limited ground of total absence of
jurisdiction (coram non-judice) or malice in law to challenge any step in the
process of election including an order passed by the Election Commission under
Rule 70.
Md Mozibur
Rahman Moznu Vs Abdul Halim and others, 21 BLD (AD) 109.
Ref:
AFM Shah Alam V Mujibul Huq & ors, 9 BLD (AD)78:41DLR (AD)68—relied.
Article—102
Customs Act,
1969, Section—180
A
plain reading of section 180 of the Act it is sufficient to hold that only that
person is entitled to get a show cause notice from whose custody the goods in
question is seized. In the instant case the goods were seized from an abandoned
truck and as such the order of confiscating the goods in the absence of the
show cause notice cannot make the order of confiscation illegal.
Government
of Bangladesh and others Vs Abu Musa, 21 BLD (AD) 107.
Article—102
Whether
there was a proper resolution or not is a question of fact which cannot be
decided in the writ jurisdiction. The grievance against establishment of the
Union Parishad at a new site cannot be examined in a summary proceeding under
writ jurisdiction.
Md. Neyamat
Ali and another Vs Thana Engineer, Local Government, Engineering Department,
Police Station Valuka, District Mymensingh and others, 21 BLD (AD)155.
Ref:
48DLR(AD)47—relied
Article—102
Fatwa
Fatwa
means, legal opinion by a person of lawful authority. Legal system of
Bangladesh empowers only the Courts to decide all questions relating to the
legal opinion on the Muslim and other laws as in force in Bangladesh and as
such any fatwa by any unauthorised person is illegal.
Editor, The
Daily Banglabazar Patrika and two others Vs District Magistrate and- Deputy
Commissioner, Naogaon, 21 BLD (HCD) 45.
Article—102
Board of
Intermediate and Secondary Education, Jessore (Managing Committee of the
Recognised Non-Government Secondary Schools) Regulation, 1977
Regulation—7,
9(20)(22)
There
is no allegation or any dispute as to the validity of the election of the
members from the category of guardians and teachers and as such their election
to the Managing Committee cannot be impeached. If there is any irregularity in
the election of a member from a particular category, the election of the
members cannot be challenged nor can the Managing Committee be dissolved.
Mollah
Habibur Rahman Vs Board of Intermediate and Secondary Education, Jessore &
others, 21 BLD (HCD) 269.
Ref:
Faizur Rahman (Md) and ors. Vs. Secretary, Ministry of Education and ors, 2 BLC
(1997) 619—Cited.
Article—102
Principle of
natural justice
When
an order is passed by a statutory authority in favour of a person, it cannot be
cancelled by the authority without giving him an opportunity of being heard.
Cancellation of two impugned order without hearing the petitioner just on the
basis of verbal objection by the Commissioner of Customs, Exercise & VAT is
illegal and has been violative of principle natural of justice.
MIs Regard
Chemical Works Vs National Board of Revenue and others, 21 BLD (HCD) 342.
Article—102
Locus Standi
The
petitioner is a practicing Advocate of the High Court Division. He has alleged
that because of hartal he was unable to pursue his profession. The petitioner
claiming that he is affected by the hartal call he is therefore an aggrieved
person and hence he has the lo standi to file the instant writ petition.
Khondaker
Modarresh Elahi Vs Government of the People’s Republic Bangladesh, 21 BLD (HCD)
352.
Article—102
As
regards the service of summons, shows from Annexure-2 to the affidavit-in
opposition that summons was duly serve upon defendant No. 3. Moreover, from
order 11 dated 4.3.97 of Money Suit No. 4 of l99 it appears that the petitioner
himself appeared before the court and took adjournment. In writ jurisdiction,
whether summons was served or not is not to be adjudicated as it is not even
permissible.
S M Abul
Hossain Vs Agrani Bank Rupsa Stand Road, Khulna and ors., 21 BLD (HCD) 410.
Article—102
After
all the slum dwellers, poorest of the poor they may be, without any future or
dreams for tomorrow, whose every day ends with a saga of struggle with a bleak
hope for survival tomorrow, but they are also citizens of the country,
theoretically at least, with equal rights. Their fundamental rights may not be
fully honoured because of the limitations on the part of the State but they
should not be treated, for any reason, as slaves or chattels, rather as equal
human beings and they have got a right to be treated fairly and with dignity,
otherwise all commitments made in the sacred Constitution of the People’s
Republic, shall prove to be a mere mockery.
Kalam and
others Vs Bangladesh and others, 21 BLD (HCD) 446.
Ref:
Ain 0 Salish Kendra (ASK) and ors Vs. Govt. of Bangladesh and others, 19 BLD
(HCD)488—cited.
Article—102
Companies
Act, 1913, Section—193
The
Registrar has, under the provision of the Act, no power either to accept or
reject a return or document required to be filed under the Act. If however, he
finds that the documents in question disclose an unsatisfactory state of
affairs, he may direct the company to correct it in the manner directed by him.
But in the instant case it does not appear that the Registrar has come to any
definite conclusion as to whether the transfers of shares are genuine or not.
Rectification of share Registrar can only be made by the Court and if any
transferor or the transferee is aggrieved by any transfer or has any dispute as
regards transfer of shares, he has the right under the law to go to the Court.
The
direction given to the petitioner to go to the Court does not come within the
power of the Registrar as contemplated under section 193 of the Act. It is a
right of the members of public to inspect the documents and obtain certified
copies from the office of the Registrar. The issuance of the certified copies
cannot be held back on the ground that the Registrar has not accepted/approved
the returns filed with the Registrar.
The City Bank Limited Vs. The Registrar, Joint
Stock Companies and others, 21 BLD (HCD) 495.
Article—102
The
appointment in a teaching post of the University although can only be made by
the Syndicate but the Syndicate being a creation of an ordinance, it cannot act
arbitrarily and capriciously but it must act judicially and fairly.
Dr. Md.
Alamgir Vs. The Vice Chancellor, BUET and others, 21 BLD (HCD) 514.
Article—102
Disputed
question of title and possession cannot be decided in the writ jurisdiction.
Mosammat
Nurfahan Akhter Vs. The Government of Bangladesh and others, 21 BLD (HCD) 519.
Article—102
Promotion
of persons in the service of Republic being part of the terms and condition of
the service, a grievance in respect of the same falls within the exclusive
jurisdiction of the Administrative Tribunal, and as such the writ petition is
not maintainable.
Md. Nurul
Islam & another v. Government of Bangladesh & others, 21 BLD (HCD) 562.
Article—102
Judicial
review of administrative actions
Transparency
in the policy/decision making and functioning of public bodies is desired for
more than one reason, and in matters where the financial interest of the State
is involved, transparency of the decision making authority is a recognized
matter. Therefore, in a situation like the instant case, the Court in exercise of
its jurisdiction of judicial review of the action of the Government in the
discharge of executive functions as well as activities of State functionary in
respect of contractual matters, considered the rationality and reasonableness
of the decision made.
M/s. Hyundai
Corporation v. Sumikin Bussan Corporation & ors, 22 BLD (AD) 16.
Ref: Tata
Cellular v. Union of India, AIR 1966 (SC) 11.
Article—102
The
writ petition has been filed just to protect the alleged interest of intending
promoters of banking companies, who are not less fortunate persons. It has not
been alleged that this writ petitioner has any connection with any existing
bank. Therefore, his status cannot be construed as status of an aggrieved
person as contemplated under Article 102 of the Constitution. (Per Mahmudul
Amin Chowdhury, CJ)
As
the Registrar of Joint Stock Companies and Bangladesh Bank in issuance of
certificate of incorporation and no objection certificate for registration
failed to see whether BRAC Bank has a separate entity from BRAC, the writ
petitioner was competent to seek relief by way of declarations that their
actions were without lawful authority and of no legal effect. (Per Md. Ruhul
Amin, J, dissenting)
BRAC v.
Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.
Article—102
Instead
of approaching the proper forum for adjudication of their claim, the
petitioners filed the writ petition with the sole object of obtaining
possession in the land that was once given to the petitioners. The High Court
Division dwelled on the question of title of the petitioners in the land on the
general proposition that title follows possession. But in the instant case,
there is no material on record to ascertain the quantity of land in possession
of the petitioners from which they were allegedly evicted. The High Court
Division was in error in overlooking this contentious fact requiring
adjudication on the basis of evidence, which is outside the scope of writ
jurisdiction.
The
Director, Housing and Building Research Institute v. Darus-Salam Cooperative
Housing Society Ltd. and others, 22 BLD (AD) 134.
Article—102
The
High Court Division was correct in holding that the cancellation of the
allotment and lease deed were without lawful authority since the same were done
without giving any notice to the allottee.
Jahanara
Ahmed v. Md. Abdul Quyum and others, 22 BLD (AD) 145.
Article—102
The
petitioners’ claim of compensation for the land acquired is dependent on the
proof of their title to the Land. Whether the petitioners have any title to the
land acquired by the Government is a question of fact which cannot be decided
in a writ petition. After acquisition the land duly vested in the Government
and thereafter in the RAJUK. Therefore, RAJUK may issue notices for eviction to
anybody found on the land so acquired.
Abul Kalam
Md. Mohiuddin Khan v. Chairman, Rajuk & ors, 22 BLD (AD) 150.
Article—102
This
Court would be far exceeding its proper functions if it were to assume
jurisdiction to enforce performance by public bodies of all their statutory
Unties without requiring clear evidence that a person who sought its
interference had a legal right to insist upon its performance.
Hazerullah
v. The Assistant Commissioner, Board of Management of Abandoned Property and
others, 22 BLD (AD) 155.
Ref:
Queen V. Guardian of the Lewisham Union, 1897 1 QB 498.
Article—102
This
Court under constitutional mandate is duty bound to preserve and protect the
rule of law. The cutting edge of law is remedial and the art of justice has to
respond here so that transparency wins over opaqueness. In the instant case,
the petitioners, though not personally affected in espousing a genuine cause,
but have drawn the court’s attention to the breach of constitutional
obligations.
Such
gross violation of fundamental rights should shock the judicial conscience and
force it to leave aside the traditional procedure which shackles the locus
standi and gives standing to the petitioners. Unless this Court responds to it,
governmental agencies would be left free to subvert the rule of law to the detriment
of the public interest.
Ekushey
Television Ltd. & ano. v. Dr. Chowdhury Mahmood Hasan & ors., 22 BLD
(AD)163.
Article—102
Writ of
Certiorari
The
jurisdiction in the nature of Certiorari is not so wide or large as to enable
the High Court Division to convert itself into a Court of appeal and examine
for itself materials to come to a new finding and to substitute the findings of
the tribunal.
It
is well-settled that the High Court Division cannot sit as a Court of appeal in
such matters and act as a civil appellate authority.
Bangladesh
Tobacco Company Limited and another v. Md. Azizul Huq and another, 22 BLD (AD) 184.
Ref:
Bikash Ranjan Das Vs. The Chairman, Second Labour Court, Dhaka and others
reported in 29 DLR(SC)280; Ayesha Salahuddin Vs. Chairman, 2nd Labour Court and
another reported in 32 DLR(AD) 68.
Article—102
Discretion
The
exercise of discretion must be a real exercise of discretion with due regard to
the statute conferring such discretion.
The
Chairman, Bangladesh Textile Mills Corporation v Nasir Ahmed Chowdhury and
others, 22 BLD (AD) 199.
Article—102
Writ
petition cannot be founded on contract, but when a contract is concluded the
contractor has a legitimate expectation that he will be dealt with fairly.
The
Chairman, Bangladesh Textile Mills Corporation v Nasir Ahmed Chowdhury and
others, 22 BLD (AD) 199.
Ref:
(1988)1 WLR 1482; (1983) 2 All 386=(1983)2 AC629); (1985)AC 374(1984) 3 All ER
935; (1990)1 All ER173; (1990)1 All ER 91; 1994 1 All ER 517 (1994)1 WLR 74;
AIR 1999 (SC) 1801; (1997)1 WLR 906(A); (1994) I WLR 74; (1947) 2 All ER 680,
(1948)1 KB 223; (1994) 1 WLR 74 [(1994)1 All ER 577]; AIR 1994(SC)988; AIR
1999(SC)988; Attorney-General Hong Kong and Ng Yuen Shiu, 1983 2 AC 629; 51 DLR
(AD) 56; (1985) 1 All ER 40 (1984) 1 WLR 1337; 0 REILLY AND OTHERS AND MACKMAN
AND OTHERS(1983) 2 AC 237; (1997)1 WLR 906; PLD 1987 (SC) 145.
Article —
102
Extraordinary
remedy provided by writ petition under Article 102 of the Constitution is for
speedy relief and is for the vigilant and not for the indolent ones and is to
be sought immediately after the grievance is caused. Latches and delay
disentitles one to such remedy.
Sarwarjan
Bhuiyan Vs. The Government of the People’s Republic of Bangladesh, 13 BLD (HCD)
209.
Article—102
This
Court (Via the High Court Division) can interval to prevent a Tribunal from
exceeding its jurisdiction or prevent from working by travelling beyond its
jurisdiction. The High Court would be empowered to prevent a Tribunal from
going wrong in law, but that is not the same thing as correcting a decision or
an order merely because it is erroneous. A Tribunal may decide a point of law
or pass an order in deciding issues before it keeping within jurisdiction
though deciding it erroneously. That error would not be an error for
interference under certiorari though it can be examined in appeal.
This
Court (Viz. the High Court Division, in its supervisory capacity, though not in
an appellate capacity, has jurisdiction to see that the Tribunal do not go
wrong in law when only the question of reasonableness of the order would come
in. If the order is such that no reasonable man would take such view making the
order almost an absurdity or perverse, it would come within certiorari as
because a perverse order is a nullity and thus, not an order within
jurisdiction and this must appear on the face of the record.
Md. Mustasim
Ali Vs. Abdul Motalib and others, 13 BLD (HCD) 419.
Ref:
31 DLR; PLD 1974(SC) 139; P.L.D. 1963(SC) 704-Cited.
Article—102
Judicial
notice
Judicial
notice was taken of the fact that under the two past Governments decision was
taken to bar the use of polythene bags, but due to the resistance of the
manufacturers, the decision could not be implemented. Notice was also taken of
the large scale publicity made before the ban. So, the claim that the
imposition of the ban was sudden is not at all true. This Court while
exercising jurisdiction under article 102 of the Constitution cannot ignore the
public demand in favour of the bar and also of the adverse effect caused by the
use of such bags.
K M Asadul
Bari v. Bangladesh and others, 22 BLD (HCD) 129.
Article—102
Government
is always under an obligation to act fairly and reasonably even where the other
party has got no legal right in the conventional sense. This is so even in the
case of a contract where the Government is one of the contracting parties.
Bangladesh
Soya-Protein Project Ltd. v. Secretary, Ministry of Disaster Management and
Relief, Bangladesh Secretariat, Dhaka, 22 BLD (HCD) 378.
Article—102
In
view of the fact that a Govt. appeal is pending against the order of acquittal
of the petitioner, the prayer for declaring his suspension order to be of no
lawful authority is not tenable in the eye of law.
AFM Hamidul
Hoque v. The Directors, National Savings Directorate, 22 BLD (HCD) 448.
Article—102
A
person though not personally aggrieved may also come to the Court when his
heart bleeds for his less fortunate fellow for any wrong done by the
Government. When an action concerns public wrong or injury or invasion on the
fundamental rights of indeterminate number of people, any member of the public
being a citizen suffering the common injury, has the right to invoke the
jurisdiction under Article 102 of the Constitution.
Chowdhury Mahmood
Hossain v. Bangladesh and others, 22 BLD (HCD) 459.
Article—102
Trade
Organisation Ordinance, 1961, Section—6
The
writ petition being brought against the Government and the DTO, a statutory
authority and as such, absolutely maintainable as the nature of the relief
sought, could not have been otherwise available to the petitioner. The
grievance is not against the CCCI either in its capacity as a company or a
trade organisation, but against the DTO who failed to discharge its statutory
duties under section 9 of the Ordinance.
Kamaluddin Ahmed
Vs Director of Trade Organisations, Ministry of Commerce, Dhaka and others, 20
BLD (HCD) 457.
Ref:
Bangladesh Chemical Industries ‘ Corporation Vs. Registrar, Joint Stock
Companies and another, 39DLR 1—referred.
Article—102
Disputes
have arisen out of contractual rights and obligation and petitioners have also
raised disputed questions of facts which cannot be decided in writ
jurisdiction.
M. Habib Oil
Mills (BD) Limited Vs Titas Gas Transmission and Distribution Company Limited
and others, 20 BLD (HCD) 501.
Ref:
39DLR(AD)85—distinguishable National Engineering Ltd. Vs. Director, Military
Land and Cantonment Directorate and ors, 12BLD563; W.P.No. 1543 of 1996
(unreported)—relied.
Article—102
When
the Government acts and discharges functions in connection with the affairs of
the Republic and grants lease, privilege, Settlement etc, it cannot
subsequently act in an arbitrary manner and in contravention of the rules to
repudiate contracts entered into by it in exercise of its sovereign powers.
Contracts granting lease, privilege, settlement etc are different from ordinary
contracts and damages for breach of such contracts are not considered adequate
remedy. Aggrieved persons must be heard before adverse orders are passed
against them.
Abdus Salam,
Managing Director S.P.and F.I.C., V. Additional Deputy Commissioner &
others, 14 BLD (HCD) 598.
Article—102
Building
Construction Act, 1952, Section—3A
The
question of 6 months notice under section 3A is not applicable here at all as
the said section speak of use of the building which does not conform to the
scheme of land utilization indicated in the master plan and the impugned notice
was not issued on that ground. Furthermore, admittedly there is no lease
agreement between the parties since 1.9.1999 and no relationship of landlord
and tenant exists and as such the petitioner are at present illegal occupant
and are trespasser in the house. Hence, they have no locus standi to invoke
writ jurisdiction under Article 102 of the Constitution.
Meridian
International (Pvt) Ltd. and others Vs Rajdhani Unnayan Kartipakha (Rajuk) and
others, 20 BLD (HCD) 564.
Article—102
The
impugned order of the Rin Salishi Board being illegal and without jurisdiction,
the petitioner is not debarred from invoking writ jurisdiction under Article
102 of the Constitution without availing of the alternative remedy by way of
appeal before the Revenue Authority.
Mohammad
Salim v. Assistant Commissioner of Land and Chairman Debt Settlement Board and
others, 22 BLD (HCD) 475.
Ref:
Neser Ahmed v. Government of Bangladesh 49DLR(AD)1 11; National Bank of
Pakistan v. Md. Golam Mostafa, 27 DLR 158; M.A. Hai, Md. Wazed Ali Miah and
another v. Trading Corporation of Bangladesh 4ODLR(AD)206; Assessing Officer,
Narayanganj Range, and others v. Burmah Eastern Limited, 1(198 1) BLD(AD)450.
Article—102
When
a petitioner is transferred to the other establishment his lien remains intact
and the vested right accrued by him cannot be taken away without canceling his
lien by drawing proceeding.
Abu Hena
Mohammad Mamun v. Bangladesh Shipping Corporation and others, 22 BLD (HCD) 549.
Ref:
M.A. Bari V. Chairman the Bangladesh Water Development Board (BWDB) and others;
5ODLR(HCD)39 1; Azad Rahman V. Government of Bangladesh and others 49 DLR
(HCD)298.
Clause (4)
Article—102
Analyzed and
explained
Article—102(3)(4)
Clause
(3) of Article 102 of the Constitution are strongly indicative of the intention
of the framers of the Constitution that the granting of an interim order is not
an absolute plenary power and that it is totally prohibitive in relation to
certain laws. The High Court Division has to pass an interim order under clause
(1) of sub-clause (a) of clause (2) of Article 102 of the Constitution under
the following constraints:
(1)
Sub-clause (b) of clause (4) enjoins that the High Court Division may make an
interim order of fulfillment of the conditions precedent for the exercise of
the power.
(2)
The first condition is that the Attorney General will be given a reasonable
notice of the applications or he or an Advocate authorised by him in that
behalf will be given an opportunity of being heard. If the High Court Division
is of the opinion that an interim order is inextricably connected with
sub-clause (a) or (b) of clause (4), it ought to refrain from passing an
interim order, fix a date for passing an interim order, fix a date for
appearance of the Attorney General or his authorised Advocate giving him a
notice therefore unless in the facts of the case the High Court Division is of
the opinion that the Attorney General and sufficient notice of the application
had there was no cogent reason for his non-appearance for making submissions on
the interim order.
(3)
The non-appearance of the Attorney General will not by itself be a ground for
the High Court Division to pass an interim order unless it satisfies itself
that the interim order is not likely to have the effect of causing prejudice or
interference with the implementation of a development work or programme or it
would have the effect of being harmful to the public interest. (4) The
satisfaction of the High Court Division in passing the interim order is latent
in the order itself, even though no satisfaction is explicitly expressed.
(5)
The High Court Division will not consider whether an interim order will actually
prejudice or interfere with the implementation of any development programme or
work or will actually be otherwise harmful to the public interest but will only
consider whether such interim order is likely to have the said effect.
(6)
Broadly speaking to obtain an interims order a writ petitioner must not only
make out a prima facie case but a very strong prima facie case and the balance
of inconvenience in his favour shall be so strong that it will outweigh the
consideration of sub-clause(a) o (b) of clause(4).
(7)
Generally speaking, impeding the assessment or collection of public revenue is
harmful to the public interest. In the absence of any jurisdictional issues
involved, there is no justification to protect temporary private interest by
interim order impeding collection of the public revenue.
(8)
When the order under challenge• found to suffer from an absolute lack of
jurisdiction or when it is in gross violation of Law apparent on the face of
the applications causing grave injustices, where denial of interim relief will
lead to public mischief, the High Court Division will look into the matter but
in’ doing so it will consider whether-in-spite of a prima facie case and
balance of convenience, the individual interest should be subjugated to public
interest.
(9)
It serves no public purpose to permit the Customs authorities to realise all
the claims before they release the goods if the claimed amount has prima facie
no sanction of law. A Bank guarantee is a sufficient protection to a taxing
authority’s questionable demand.
The
Commissioner of Customs, Chittagong Vs. Gisuddin Chowdhury, 17 BLD (AD) 270.
claimed
amount has prima facie no sanction of law. A Bank Guarantee is a sufficient
protection to a taxing authority’s questionable demand.
The Commissioner
of Customs, Chittagong Vs. Giasuddin Chowdhury, 17 BLD (AD)270
Article—102(1)
and (2)(a)
Public
Interest Judicial Review
Judicial
review of the administrative action should be made where there is necessity for
judicial action and obligation. Such action must be taken in public interest.
The purpose of judicial review is to ensure that the citizen of the country
receives protection of law and the administrative actions comply with the norms
of procedure set down by the law of the land. Judicial power is the safest
possible safeguard’ against abuse of power by administrative authority and the
judiciary cannot be deprived of the said power.
Dr.
Mohiuddin Farooque Vs. Bangladesh and others, 18 BLD (HCD) 216.
Ref:
17BLD(1997)AD)1: 49DLR(AD)1; 48DLR438; PLD1964(SC)693;
Article—102(1)
and 117(2)
A
person who intends to invoke fundamental right for challenging the vires of a
law may seek his remedy under Article 102(1), but in all other cases he will be
required to seek remedy under Article 117(2) of the Constitution in service
matters.
Md. Ali
Hossain Fakir and 5 Govt. Of Bangladesh & ors, (HCD) 282.
Ref:
44 DLR (AD) 111—relied.
Article—102(2)
The
provision of Article 102(2) of the institution cannot be taken recourse to
frustrate the course of justice or to create impediment to get such right.
The Managing
Director, Rupali Bank ltd; Vs. The Chairman, First Labour court, Dhaka and
another, 13 BLD (HCD) 448.
Ref:
James Finlay and Co. Ltd. Vs. the Chair-man, Second Labour Court, Dhaka and
others, 33 DLR(AD)5-Cited.
Article—102(2)
Customs Act,
1969, Section—193
Since
the petitioner did not avail of the alternative forum of appeal as provided in
the Customs Act and as the said forum being an equally efficacious forum to
seek remedy against the claim, the petition filed under Article 102(2) of the
Constitution and the Rule obtained there upon should be discharged on the said
ground.
M/s. Delicia
Dairy Food Ltd. Vs. The Collector of Customs and others, 19 BLD (HCD) 396.
Article—102(a)(i)
and (ii)
the
manner of eviction of the sex- workers though condemnable, the Court in its
writ jurisdiction is unable to restore them in possession to the original place
because the same is owned by private individuals and the Government has no
authority to rehabilitate the sex-workers, since the action done was not in
connection with the affair of the Republic or of a local authority and as such,
the eviction does not come within the mischief of Article 102(a)(i) and (ii) of
the Constitution. The sex-workers may seek relief by way of compensation under
the general law of the land.
Sultana
Nahar, Advocate Vs. Bangladesh and others, 18 BLD (HCD) 363.
Ref:
17 (1997) BLD (AD) 1; AIR. 1977(SC) 2149; AIR 1972 (SC) 793 and 800; AIR 1986
(SC) 825; AIR 1976 (Punjab and Harayana) 22 and 24; A.I.R. 1959 (Allahabad) 57;
AIR 1931 (SC) (PC)248; ‘Potita Nan’ by Zarina Rahman Khan and Helaluddin Khan
Areefin; ‘Identity Islam and Human Development in Rural Bangladesh’ by David
Abecassis, National Policy on HIV/AID and STD related issued by the Government
of the People’s Republic of Bangladesh as a final draft of October, 1996 and a
weekly journal, namely Independent dated 21 March, 1997; 27DLR(AD)41; 1987(SC)
1086—Cited.
Article—102(2)(a)(i)
Writ of
Mandamus
This
court could pass any order giving appropriate direction for the enforcement of
any of the fundamental rights and could also give direction in the nature of
mandamus.
Article
102(2)(a)(i) provides that the High Court Division may, if satisfied that no
other equally efficacious remedy is provided by law, on the application of any
person aggrieved make an order direction any person performing any function in
connection with the affairs of the Republic or of a local authority to retrain
from doing that which he is not permitted by law to do or to do that which he
is required by law to do and declaring that any act done or proceeding taken by
a person performing function in connection with the affairs of the Republic or
of a local authority has been done and taken without lawful authority and is of
no legal effect.
Professor
Nurul Islam Vs Government of Bangladesh and ors, 20 BLD (HCD) 377.
Ref:
Ramakrishna Vs. State of Kerala and ors. 1992(2) KLT 725; Pakistan Chest
Foundation and ors. Vs. Govt. of Pakistan and ors. 1997CLC 1379; Dr. Mohiuddin
Farooque Vs. Bangladesh, 48 DLR (HCD) 438 ; Subash Kumar Vs. The State of
Bihar, A1R1991 (SC) 420; Ms Shgelha Zia Vs. WAPDA, PLD 1964(SC)693; Dr.
Mohiuddin Farooque vs. Bangladesh, 49DLR(AD) 1 ;—Cited.
Article—102(2)(a)(ii)
Income Tax
Ordinance, 1984, Section—160
Under
Article 102 of the Constitution the High Court Division is called upon only to
examine whether the order challenged is violative of any law or the same was
passed malafide. Order refusing to waive deposit of 25% of the tax assessed
does not give rise to any violation of fundamental right as referred to in Part
III of the Constitution. Power to waive deposit of 25% of the tax assessed is
not only a discretionary one and is to be exercised on consideration of the
merit of a particular case. There is no scope for the High Court Division to
embark upon merit of the order of re-assessment of income by the taxing
authority and to reject the writ petition arising out of an order refusing to
waive deposit of 25% of the tax assessed for filing a reference application
under section 160 of the Income-Tax Ordinance, 1984 to the High Court Division.
Messers
Hyundai Corporation Vs The Chairman, National Board of Revenue and others, 21
BLD (AD) 55.
Article—102(2)(a)(ii)
The
High Court Division exercising power under Article 102(2)(a)(ii) of the
Constitution can only make a declaratory order and nothing more. Unless it is
required by law it cannot direct any authority to do a particular thing.
Bangladesh,
represented by Secretary, Establishment Division and others Vs. Mahbubuddin
Ahmed, 18 BLD (AD) 87.
Ref:
44 DLR(AD)111; 1BLC(AD)77; The Collector, Central Excise and Land Cus torn, PLD
1985(SC)82; 44DLR(AD)231 PLD1972 (SC)139; Constitution in Crisis by John
E.Finn; Writ Petition NoA616 of 1991 (Unreported); 33 DLR(AD)154; 45DLR(AD) 1;
PLD1973(SC)49; PLD 1974(SC)151; PLD 1983(SC)457; 22 DLR (SC)371; I.M. Lall’s
case PLD1948 (PC)150; 41 DLR (AD)64; AIR 1966(SC)95 1;A1R1970(SC)214—Cited.
Article—102(2)(a)(i)
Government
Estate Manual, 1958, Rule—205
Memorandum
issued by the Government and Rules relating to settlement of fisheries
incorporated in the Government Estate Manual have no statutory force but it
merely provides administrative guidelines. It does not create any legal right
in favour of any person.
Nur Mohammad
Vs The Secretary, Ministry of Education and others, 21 BLD (HCD) 312.
Ref:
Dr. Mohammad Mominul Haque Vs. The Secretary, Ministry of Health and Family
Welfare, 45DLR(HCD)39; Telikhal Progressive fishery Co-operative Society Vs.
Bangladesh and others 198 1BLD(AD)103.
Article—102(2)(a)(i)
Government
Estate Manual, 1958, Rule—205
Memorandum
issued by the Government and Rules relating to settlement of fisheries
incorporated in the Government Estate Manual have no statutory force but it
merely provides administrative guidelines. It does not create any legal right
in favour of any person.
Nur Mohammad
Vs The Secretary, Ministry of Education and others, 21 BLD (HCD) 345.
Ref:
44DLR(AD)111; M M Shahidur Rahman Vs. Bangladesh, 46DLR187; Ayub Au Vs.
Bangladesh, 46DLR191; Dr. Mohammad Mominul Haque Vs. The Secretary, Ministry of
Health and Family Welfare, 45DLR (HCD)39; Telikhal Progressive Fishery
Co-operative Society Vs. Bangladesh and others 198 1BLD(AD) 103—Cited.
Article—102(2)(a)(ii)
Locus Standi
In
performing the function Grameen Phone has acted in the affairs of Government
and as such Grameen Phone is required to ensure accountability/transparency and
bona-fide in performing such functions.
The service agreement entered into by and between the subscribers including the
petitioner and Grameen Phone is not an ordinary trading agreement but a
contract entered in this regard or providing mobile telephone services by
Grameen Phone as an agent and licencee of the Government. Any act of Grameen
Phone in breach of the contract or showing lack or want of transparency and
bonafide on its part as complained of by the petitioner is accountable in writ
jurisdiction.
Zakir
Hossain Munshi v. Government of the People’s Republic of Bangladesh, 22 BLD
(HCD) 483.
Ref:
Conforce Ltd. vs. Titas Gas Transmission and Distribution Co. Ltd. and ano.
42DLR33; Manjurul Huq vs. Bangladesh, 45 DLR(1993) 360; Khorshed Alam Vs.
Bangladesh, 47 DLR(1995) 209; Abdul Ahad Chowdhury Vs. Habibur Rahman and ors,
15 BLD(1995)124; Abdur Rahman Vs. Bangladesh, 48DLR (1996)431; Fazana Vs.
Securities and Exchange Commission, 54DLR66; Manjurul Huq Vs. Bangladesh and
ors, 44DLR(1999) 239.
Article—102(2)(a)(i)(ii)
Code of
Criminal Procedure, 1898, Sections—94(1) and 160
Petitioner
asked to appear before Anti- corruption Officer, Anti-corruption Bureau,
Bangladesh, Dhaka and to produce certain documents relating to acquired land.
The crucial test for issuing an order for production of document is that such
production is necessary for the purpose of any investigation, inquiry, trial or
other proceeding under the Code. No person is required to attend a police
officer merely because he is ordered or required verbally or in writing unless
his attendance is so required in connection with investigation of a criminal
case.
M. Mohsin
Hossain v. Bangladesh and others, 22 BLD (HCD) 647.
Article—102(2)(b)
The
provisions of Article 102(2)(b) of the Constitution is very wide in nature as
it provided that any person, and not only aggrieved person as a mandamus or
certiorari or quo warranto, can take to the notice of the Court that somebody
is illegally detained by any person and pray for a declaration that the person
is so detained illegally and without lawful authority and the Court shall,
after being so satisfied, direct the person to be set at liberty at once.
A
petition in the nature of habeas corpus for the custody of a minor would also
be equally competent without sending the petitioner to exhaust his or her
remedy before the Family Court or under the Guardian and Words Act or other
criminal Court which is neither expedient nor an equally efficacious remedy in
situation like the one in the instant Case.
While
dealing with matters referable to the custody of a child, the established legal
position is that the welfare of the child is of prime consideration the
provisions of the personal law of the parties or even the provisions of the
statute law as to such custody may be subject to that paramount need of the
welfare of the child.
Ayeha Khanam
and others Vs. Major Sabir Ahmed and others 13 BLD (HCD) 186.
Ref:
Goher Begum Vs. Suggi, A.I.R. 1960 (SC)93; Imtiaz Banu’s Case, A.I.R. 1979
(Allahabad)25; Surinder Kaur Sandhu, A.I.R. 1984 (SC)1224—Cited.
Article—102
(2)(b)(ii)
Writ of Quo
Warranto
Every
citizen demanding removal of all usurpers in public functionaries in public
interest has a right to pray for a writ of quo warranto the question of an
alternative remedy is not a bar in such a case invoking the such jurisdiction
of the High Court Division.
Md Zahedul
Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.
Ref:
Vidya Sagar Singh Vs. Krisha Ballabha Sahey and ors, AIR1965Patna 321— relied
Article—102(2)(b)(ii)
Question
of delay in filing the writ of quo warranto
There
can be no question of delay in presenting a petition for writ of quo warranto
in which the right of a person to function in a certain capacity is challenged.
Every day a fresh cause of action arises on the theory of “De dia in diem” that
means from day to day. No application for quo warranto can be dismissed for any
length of delay.
Md Zahedul
Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.
Ref:
Md. Hanif and ors. Vs. Chamari Sao and ors, AIR 1965 Allahabad 151—relied
Article—102
(2) (i) (ii)
The
legality of acts done or proceedings1 taken by persons performing functions in
connection with the affairs of the Republic or of a local authority comes
within the purview of the writ jurisdiction of the High Court Division under
Article 102 (2) (i)(ii) of the Constitution but acts done or proceedings taken
by such functionaries not in connection with the affairs of the Republic or of
the local authority in their private capacity do not attract the provision of
Article 102 of the Constitution.
Principal
Abdul Ahad Chowdhury Vs. Habibur Rahman and others, 15 BLD (HCD) 124.
Ref:
Ajoy Hasia Vs. Khalid Mujib Sehravardi, A. 1. R. 1981 (SC) 487; P. D.
Shamdasani Vs. The Central Bank of India Ltd; A. 1. R. 1956 (SC) 59; Praga
Tools Corporation Vs. C. V. Imanuel and others, A. I. R. 1969(SC) 1306—Cited.
Article—102(2)(a)(i)
Writ of
Mandamus
Under
the provisions of Article 21 of P.O. 26 of 1972 respondent No. 1 shall carry on
and transact all kinds of banking business. There is no dispute that the
remission of interest was allowed by the respondent No. 1 in respect of its
banking business. Banking business is nothing but a business like any other
business aim of which is to earn profit. Banking business of the respondent No.
1 owned by the Government is not in exercise of any statutory power and is done
by the respondent No. 1 in the capacity of an ordinary business organisation
and as such writ of mandamus does not lie against the respondent No. 1 to
enforce an ordinary contract.
Faziur
Rahman and Co. (Pvt) lid. Vs. Agrani Bank and others, 19 BLD (HCD) 347.
Ref:
39 DLR(AD)85; 42DLR33—Cited.
Article—102(2)(b)(ii)
Writ of Quo
Warranto
The
petitioner did not come before the writ court to establish any public right but
only to serve his selfish end. A writ of quo warranto cannot be indulged in for
such a purpose.
Mohammad
Abdur Rab Mia Vs. The District Registrar and others, 19 BLD (AD) 24.
Article—102(2)(b)(ii)
Writ of Quo
Warranto: Maintainability
Any
citizen of the State can maintain an application in the nature of quo warranto
if he finds that anybody is holding any public office in flagrant violation of
constitutional provision or in violation of any other law.
The
petitioner is a practicing Advocate and a conscious citizen to 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 and in the instant case the posting of respondent
No. 1 as C.M.M. Dhaka, has been challenged by the petitioner on the ground that
in posting him in the said post, the provisions of Article 116 of the
Constitution has been violated and as such the instant application is
maintainable.
Md. Idrisur
Rahman Vs Md. Shahiduddin Ahmed and others, 19 BLD (HCD) 291.
Article—102(2)
(b)(ii)
Writ of Quo
Warranto
The
moment a man becomes a member of the Parliament, he assumes all
responsibilities, powers, functions and obligations attached to such office.
Bereft of such powers, functions and obligations, the members so elected become
a mere shadow of his title. When a voter finds that a member of the Parliament
is not discharging his duties and obligations he does not see the man whom he
elected. Therefore, he has a right to ask the Court to issue a writ of quo
warranto asking the respondents under what authority of law they were holding
such public office. In such circumstances the Court is justified in issuing a
writ of quo warranto in order to get information from the respondents as to how
they cling to their office without performance of duties and obligations
attached to such office. To refuse such a relief would tantamount to
perpetuating the illegality of respondent nos. 3-5 in boycotting the sessions
of the Parliament and indulging in unparliamentarily activities.
Md. Anwar
Hossain Khan Vs. The Speaker of Bangladesh, Sangsad Bhabvan, Sher-E-Bangla
Nagar, Dhaka and others, 15 BLD (HCD) 344.
Article—102(2)(b)(ii)
Writ of quo
Warranto
This
writ is in the nature of quo-warranto under Article 102(2)(b)(ii) of the
Constitution of Bangladesh which provides that on the application of any
person, the High Court Division may enquire whether a person holding or
purporting to hold any public officer is holding it under legal authority. The
writ of quo warranto will issue where there is a clear violation of any
constitutional provision or any other provision having the force of law. A
person will be found to hold office without lawful authority, if the person is
not qualified to hold the office or some mandatory provision of law has been
violated in making the appointment or when the appointment has been made by a
person who has no authority to do so.
Shamsul Huq
Chowdhury, Senior Advocate, Supreme Court V. Mr.Justice Mohammad Abdur
Rouf& ors,16 BLD (HCD) 126.
Ref:
A.I.R. 1967 (Kerala) 259; 39 DLR (AD) 59; Writ Petition No. 37 of 1987 (Not
reported) ; 31 DLR (AD) 152; 34 DLR (AD) 125; Halsbury’s Laws of England (3rd
Edition, Vol-Vu page 187 para 402 and para 408; PLD 1976 (SC) 315; A.I.R. 1977
(SC) 2328; A.I.R. 1982 (SC) 149—cited.
Article—102
(2)(a) (b) (ii)
Taking
into consideration the spirit, substance and necessary intent of the writ
petition as a whole it may not be treated as a writ of Quo Warranto under
Article 102(2)(b) (ii) of the Constitution but it should be treated as a Writ
of Certiorari as contemplated under Article 102(2)(a)(ii) of the Constitution,
the petitioner having challenged the election of respondent No. 1 to the office
of the President of the Bangladesh as a citizen of the country.
Abu Bakar
Siddique Vs Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
Article—102
(2) (b) (ii)
Writ of Quo
Warranto—Its maintainability?
As
respondent No. 1 has not as yet taken oath of office and has not affirmed
charge of the office of President of Bangladesh, the pre. sent writ petition is
not maintainable in law. Words ‘purporting to hold office appearing in
sub-Article (2)(b)(ii) of Article 102 of the Constitution mean holding of
office after taking oath and assumption of office.
Abu Bakar
Siddique Vs Justice Shahabuddin Ahmed and ors, 17 BLD (HCD) 31.
Articles—102
(2)(b)(ii) and 152 Public Officer
President,
Prime Minister Judges of the Supreme Court and other holders of office under
the Constitution do not come within the purview of the definition clause ‘the
service of the Republic’. ‘Public Office’ in Article 102(2)(b)(ii) of the
Constitution means and includes persons holding constitutional and elected
offices and not the persons holding entrusted with the conduct and management
of the business of the Government.
Md. Abdur
Rahman Vs. Group Captain (Retd) Shamim Hossain. 17 BLD (HCD) 532.