Article-102
Premature—Respondent No. 1 brought writ petition for a declaration that the writ petitioner was entitled to be declared as a recognized private university as per provisions of the Act—during the pendency of the writ petition the Grants Commission on 14 October 1997 informed the Secretary of the Ministry of Education that in view of the fulfillment of the conditions by respondent No. 1 permission could be accorded to the proposed university, namely, Dhaka International University on condition that the respondent would withdraw the writ petition —the writ petition in the circumstances must be considered as premature, the case of action not having arisen.
Bangladesh & Ors. Vs. Dhaka International University & Ors 8BLT(AD)-198
Article-102 read with
Members of Parliament (Determination of Dispute) Act, 1981
Section-3
The Speaker in section 3 of Act No. 1 of 1981 is not a constitutional functionary when he refers the dispute to the Election Commission. He is a statutory functionary discharging a constitutional obligation. Being creature of a statute, i.e. a subordinate
legislation, he is very much amenable to the writ jurisdiction of the High Court Division.
Secretary, Parliament Secretariat Vs. Khondaker Delwar Hossain & Ors 8BLT (AD)-215
Article-102
Jurisdiction —Admittedly the respondent was originally an employee of the Telegraph and Telephone Department of the Government and after the constitution of the Telegraph and Telephone Board under the Telegraph and Telephone Board Ordinance 1975 he become an employee of the Board. He become a Senior Accountant having been recruited by the Board and thus he lost his original character of a Government servant. After the Ordinance of 1975 was repealed and substituted by the
Ordinance of 1979 there is no dispute that the employees of the “Board” like the respondent were to be governed by Section
18(2)(f)(ii) of the Ordinance of 1979—Held: The respondent became an employee of the Government by reason of Section-18(2)(f)(ii) of the Ordinance of 1979 and his service was lent to be be Board and therefore he squarely qualified to the person in the service of the Republic so that it naturally followed that the writ petition filed by him was not maintainable. .
Chairman T&T Board & Ors. Vs. Md. Shaiul Alam & Ors 8BLT (AD)-225.
Article-102
Order the Election Commission—Held: We have already noticed that disturbance that took place on the election day in the two election centers were brought to the notice of the respective Presiding Officer by the chief election agent of the appellant and
on their refusal to accept the written complaint and to postpone the election he made a written complaint to the Chief Election Commissioner on the very same day. The allegations made by him in the said application and subsequent application filed on the next day having been found correct by the Deputy Election Commissioner after enquiry High Court Division was not justified in declaring the order of the Election Commission to be without lawful authority and of no legal effect. In the facts and circumstances of the case it cannot be said that the order of the Election Commission was without jurisdiction (coram non-judice) or vitiated by malice in law. High Court Division should not have interfered with the order of the Election Commission.
Noor Hossain Vs. Md. Nazrul Islam & Ors. 8BLT (AD)-295
Article-102
Whether the petitioner suffered physical disability and became unable to attend his duty or he defined the authority deliberately and willfully absented from duty is a disputed question of fact, which cannot be decided under writ jurisdiction. Moreover question payment of subsistence to the government servant during suspension in our view relate to terms and conditions of service with in jurisdiction of the Administrative Tribunal.
Sheikh Abdul Hakim vs. LGRD & Ors 8BLT (HCD)-116
Article-102
The right to office one holds and the right to pay/salary one draws are vested during the continuance of the employment. It any action affection altering or infringing upon any such right taken not in accordance with law must be struck down otherwise, the
protection against arbitrary action available under the Constitution becomesmeaningless.
Md. Amirul Islam & Ors. Vs. T.N.O. & Ors 8BLT (HCD)-204
Article-102 (2)(a)(ii)
By the lease deed that was executed in favour of the petitioner and that possession of the fishery that was made over to the petition prior to approval of the bid the petitioner did not acquire any right of any kind in the fishery in question his contention
of that action of the Divisional Commissioner violated vested right of the petitioner is not a merited one.
Hazi Md. Bashiruddin Vs. Govt. of Bangladesh 8BLT(HCD)-64
Article-102
Not-maintainable —although when the writ petitioner had made his application before the Court of Settlement the said Court was not duly constituted, it was so constituted and functiong when the writ petition was made. The Court of Settlement is
authorized under Section 7 of the Ordinance to deal with the entire question of abandonment of the property and that is the proper forum for complete relief of the writ petitioner. So it cannot be said that the Court of Settlement did not offer an equally efficacious remedy. The plea taken by the respondent depending on the decision in 42 DLR (AD) 86 and 51 DI.R (AD) 25 that the writ petitioner could invoke the writ jurisdiction without having recourse to the Court of Settlement does not seem tenable because the jurisdiction of the Court of Settlement in this particular case in including the property in the list of abandoned properties cannot be said to be ex facie void.
The writ petitioner has given a history of the property and the manner in which he alleges to have acquired the property including transactions like exchange, partition etc. These are contentious matters. The High Court Division does not appear to have dealt with them. It is well-settled that a writ bench will not go into and resolve contentious matters in its summary procedure.
Bangladesh & Ors. Vs. Habib Zamil 9 BLT (AD)-52
Article-102 read with
The Union Parishad (Election) Rules, 1983 Rule-70
When question of fact are disputed
It appears from judgment of the High Court Division that they directed for publication of the result holding that there was no disturbance during the polling disregarding the fact that counting of ballot papers is part of the election process and any
disturbance if taken place during the counting will definitely affect the result of the election and it is the case of the appellant that the miscreants took away ballot papers and other materials which get support from Annexure-E and F. When the election process is still on the High Court Division ought not to have interfered in the matter on a disputed and controversial fact and
resolved them on mere affidavits. It appears that the High Court Division while disposing of the Rule has exceeded the jurisdiction and taken upon themselves the responsibility which according to the rule lies on the shoulder of the Flection Commission.
Al-Haj Jamshed Ali Vs. A.K.M. Abdullah & Ors.9 BLT (AD)-55
Article-102 read with
Private University Act, 1992
Premature — the Grants Commission had definitely opined in their letter dated 14October 1997 in favour of according permission to the University on condition of withdrawal of the writ petition which was then pending in the High Court Division. Notwithstanding this, respondent No. I chose to procesute the writ petition. The writ petition in the circumstances
must be considered as premature, the cause of action not having arisen.
Bangladesh & Ors. Vs. Dhaka International University & Ors.9 BLT (AD)-100
Article-102
Writ of mandamus — in any view of the matter, the High Court Division in its writ jurisdiction is not a court for the recovery of money and has no jurisdiction to give a direction for payment of a particular amount of money to the writ petitioner, unless the
amount claimed is both an admitted amount as well as a statutory payment.
Chairman. Bangladesh Water Development Board & Anr. Vs. M/S Shamsul Haque & Co Ltd. & Ors.9 BLT (AD)-105
Article-102
Not maintainable—alleged additional custioms duties—Held : per Latifur Rahman CJ: In the resent case the petitioner having released the goods on payment of additional customs duties and sales tax ought to have asked for refund under Section 33 of the Customs Act within six months. He having not availed of this alternative efficacious remedy the writ petition is not maintainable on this score as well.
Bangladesh & Ors. Vs. Mizanur Rahman. 9BLT(AD)-166
Per Kazi Ebadul Haque, J: (agreeing) : In the instant case the writ petitioner released the imported goods on payment of the assessed duty and he neither preferred an appeal against the order of assessment under Section 193 of the Act nor filed any application for refund of the alleged excess duty under Section 33 of the Act nor gave any explanation for non filing of any
appeal or application for refund. In the face of provisions for appeals under Sections 193 and 196 of the Act and also provision for refund of any excess duty under Section 33 of the Act within six months of such payment his writ petition is not maintainable.
Bangladesh & Ors. Vs. Mizanur Rahman. 9BLT(AD)-166
Article-102
When an action impugned in the High Court Division in a writ jurisdiction is a malafide one the high Court Division acting in exercise of its power under Article 102 of the Constitution has jurisdiction to entertain a writ petition.
Managing Director Biman Bangladesh Air Lines Vs. Hasina Akhter & Ors. 9BLT (AD)-149
Article-102
In the instant case award was passed by the sole arbitrator on 21.05.1994 and the award money was withdrawn by the present respondent on 02.06.1994 by giving an undertaking (Ekrarnama) that the respondent would refund excess payment made to him if mistake is detected in calculation in future. Thereafter the award was made rule of the Court on 30.06.1994 and decree was signed and sealed on 03.08.1994. Subsequent thereto, after payment of the award money General Manager (Engineering Department) by his letter dated 01.08.1994 addressed to appellant No. 2 clearly stated that as per clause 46 of the tender paper the Bank officer at Khulna supplied rod and cement of Tk. 80,40,000.00 which was also wrongly included in the award which the contractor is not entitled to get. In view of this appellant No. 2 issues a memo dated 01.03.1995 (impugned in the writ
petition) to withhold payment of Tk. 28 lakhs and odd from the pending bills —Held : The High Court Division raised the question of modification of the award and decree but the impugned memo before the High Court Division was relating to suspension of the payment till final adjudication of the matter. They learned Judges of the High Court Division primarily made the Rule absolute only on this untenable ground that the decree needs modification and amendment.
We are afraid such view is not tenable legally in the facts of the present case when the undertaking was given at the time of receiving the award money soon after passing of the award. Further disputed questions of calculations of claim and counterclaim cannot be decided in writ jurisdiction.
Governor, Bangladesh Bank & Ors. Vs. M/S Shah Islam Construction Ltd. 9 BLT(AD)-179
Article-102
Writ of mandamus — The High Court Division, by the impugned judgment and order, discharged the Rule Nisi holding that the action of Bangladesh Bank was neither arbitrary nor malafide, that the purpose of filing the writ petition was to thwart the
impending bankruptcy proceeding and that a writ of mandamus did not lie on the facts of the case — Held : It appears that the petitioner had the habit of taking loans from different banks and managing to obtain remission of interest. It had already got a remission of interest amounting to Tk. 4.03 crores. We therefore find no reason to interfere with the decision of the High Court
Division.
Fazlur Rahman & Co. (Pvt.) Ltd. Vs. Agrani Bank & Anr. 9BLT(AD)-205