Articles-27 & 47 Read with
Public Servants Retirement Act, 1974
Section-2(d)
Services (Re-organization and condition) Act, 1975
They provide for uniform treatment of all public servants in respect of pay, allowances and service condition. But they are not applicable in the instant case in as much as Regulation 12 of Bank (Staff) Regulation, like to parent law, being a protected legislation, the provision for termination by notice is not void though it may be inconsistent with any fundamental right. [Para-l0 & 13]
Bangladesh Bank & Ors. Vs. Mohammad Abdul Mannan 2 BLT (AD)-1O1
Articles-27, 28, 38 & 44
A violation of fundamental rights in impounding the posters for demanding separate electorate as contended by the petitioner’s Advocate.
Held : No direction to the government can be given for alleged violation of fundamental rights. [Para-3]
Mr Gobinda Chandra Parcunanik Vs. Bangladesh & Ors 3 BLT (HCD)-1O1
Articles-27 and 31
Whether the provision of Section 10A of the Public Demands Recovery Act, 1913 offends Articles 27 and 31 of the Constitution
As a policy decision of the Government for early recovery of the loan of Bangladesh Krishi Bank by amendment the provision has been made in the order itself for recovery of Bank dues under Public Demands Recovery Act and for speedy recovery some sections of the Public Demands Recovery Act shall not apply and Section 1OA has been inserted in the Act itself as a special provision for recovery of certain dues as Public Demand—
Held: Thus Section 1OA of the Act which provides for a special procedure relating to recovery of dues cannot be said to be arbitrary and illegal—on a reference to other provisions of the Public Demands Recovery Act, we find that all the defaulting borrowers of Krishi Bank are entitled to equal protection of law provided by the Act by way of appeal, review and revision as contained in Sections 51, 52 and 54 of the said Act and as such the learned Judges wrongly held that Section 1OA offends Articles 27 and 31 of the Constitution. [Paras-8 & 9]
Bangladesh Krishi Bank Vs. Meghna Enterprises & Another 7 BLT (AD)-84
Articles-27 & 31
Whether Section 6(2) of the Artha Rin Adalat Act, 1990 is ultra-vires of the Constitution as it offends Articles 27 and 31 of the Constitution-
The persons who are taking loan from the bank are a class apart and they are all treated equally under the law In force. We do not find that Section 6(2) of the Act Is in any way violative of Articles 27 & 31 of the Constitution. [Para-5]
Chuni Lal Bashak Vs. United Commercial Bank Ltd. & Ors. 7 BLT (AD)-157
Article-27 and Artlcle-29 (1)
If the Government nominates some persons for employment in the service of the Republic in pursuance of a statutory provision or rules the nominated persons acquire a legal right for enforcement of the same. But if the executive prepares a list of persons for appointment in the service of the Republic without the backing of any law behind it and actually appoints some persons from the list, the others left out can come to the High Court Division not for enforcement of any legal right but for enforcement of their fundamental right. Article 27 of the Constitution provides that all citizens are equal before law and are entitled to equal protection of law and Article 29 (1) of the Constitution provides that there shall be equality of opportunity for all citizens in respect of employment or office In the service of the Republic. If the petitioners merely prepared a list and kept it to themselves or their different departments for implementation as and when possible the writ petitioners had nothing to complain about: but when a number of them are appointed from a list and the appointment of others is postponed pending inquiry into the genuineness of a list comprising of 1745 persons with which list the writ petitioners have no concern, then they can legitimately complain of inequality before law and discrimination in public employment—We are of the opinion that the High Court Division was not well-grounded in law in directing the petitioners to absorb/appoint the writ petitioners against specific posts within a specified period which is purely an executive act. We are not inclined to interfere with the same except with the modification that the petitioners will appoint! absorb the left-out writ petitioners as and when vacancies are available. [Paras-6 & 7]
Govt. of Bangladesh & Ors Jahangir Hossain & Ors 7 BLT (AD)—347
Articles-27, 31 & 42
RAJUK invited applications from the interested parties for bid in the auction for Residential Plots for 99 years. In response to that the petitioner filed an application in the prescribe form and he was the highest bidder and he was given impression that in due course he will be given the allotment letter. But RAJUK did not issue any allotment letter in accordance with the terms of the auction but instead they have by notice inviting fresh applications for auction of the said plot for which the petitioner had successfully made highest bid—
Held: We are of the view 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 of question of fact, as such the instant writ petition is in competent. [Para- 11]
Dr. Md. HabtbuUah Vs. Rajdhani Urtriayan Kartripakha & Ors. 7 BLT (HCD)-8
Article-28
All the writ petitioners were cabin crews working as absorbed employees of the Bangladesh Biman Corporation, their designation being Flight Stewardess— they shall retire from service on the completion of 57 years of age —The Bangladesh Biman Corporation amended Bangladesh Biman Corporation Employees (Service) Regulation, 1979, substituting regulation 11 and providing therein that a Flight Steward (male) shall retire at the age of 45 years and a Flight Stewardess shall retire at the age of 35 years — the writ petitioners variously challenged amended Regulation 11 — the High Court Division held, the impugned amendment is violative of Article 28 of the Constitution as it discriminates between a male and female member of the cabin crew in respect of their age of retirement — Held : We find no ground for interference. [Paras -3 & 9]
Bangladesh Biman Vs. Mrs. DaRn Perveen & Ors. 4 BLT(AD) -110
Article-31
The order Memo No. 320(19)- Swa:Ma:(Ni-l) dated 10.6.1975 issued by the Ministry of Home Affairs having imposed restriction of the right of the Marwan Community to transfer or other wise to dispose of their property to another and also on the right of the citizen of Bangladesh to acquire property is discriminatory and also violative of the fundamental right guaranteed under the Constitution and the equality clause provided under Article-31—the restriction said to have been imposed to the Marwari Community not by any law but by an administrative order having not the force of law—the Memo No. 320 (19)-Swa:Ma:(Ni-1) dated 10.6.1975 issued by the Ministry of Home Affairs have been made without lawful authority and is of no legal effect. Paras-7 &8
RaJkumer Behani Vs Bangladesh 2 BLT(HCD)-169
Artlcle-35 (4)
Orders under Section 4(1) of the Anti- Corruption Act, 1957 — The petitioner of each of the four writ petitions was asked to submit the statement in the prescribed form giving statements with full particulars of the properties acquired in his name or in the benami, the liabilities and the sources of income. On the face of the impugned orders, there is nothing to suggest that the respective petitioner was made accused and formal accusation had been made against him and it cannot, also, be said that as accused person he is being compelled to give evidence against himself. Article 35(4) of the Constitution will be attracted only, if the proceedings ‘started with the accusation’ and the person who seeks its protection is already an accused person and he is of being compelled to make the statement. By the respective impugned order, the respective petitioner has been asked to submit statements with full particulars stating the acquisition of properties and the sources of income so that he can satisiy the Government that the properties acquired by him are not disproportionate to his known sources of income. Calling of statements detailing full particulars cannot be characterised as accusation as contemplated under Article 35(4) of the Constitution.
M. Habibur Rahman & Ors Vs. Govt. of Bangladesh & Ors. 7BLT (HCD)-327
Article-38
The refusal of registration of the Trade Union activities in the Bangladesh Rural Electrification Board is violative Of Article 38 of the Constitution as contended by the petitioner’s learned Counsel.
By law the Rural Electrification Board having been exempted from the category of shops or commercial establishment the formation of association, but not of trade union, is permissible, but there is no right of recognition. Further trade union activities in any statutory body setup by an ordinance may be reasonably restricted by and under a law to keep It outside of the ambit of industrial relations ordinance as such the same is not violative of Article 38 of the Constitution. [Para-5]
Abu Hossain & Ors. Vs. Registrar of Trade Union & Ors. 6 BLT (AD)-284
Article – 39 (2)
Majority view – A. T. M. Afzat, C.J. delivering the majority judgment (Mustafa Kamal, J and Mohammad Abdur Rouf J concurring with him).
Interpretation of the Article of the Constitution of Bangladesh—the writ-petitioner-respondents are engaged in the business of publication, distribution and selling of books including ‘note-books’ for primary and secondary schools up to class VIII. The respondents challenging the NoteBooks (Prohibition) Act, 1980 (Act No. XII of 1980). They submitted that the restriction exposed upon publication and sale of the ‘note-books’ In question is violative of the fundamental rights guaranteed by the Constitution—Held: In the facts of the present case, however, we have come to the conclusion that the right to freedom of speech and expression as claimed by the writ-petitioners does not cover or extend to the right of printing and publishing of ‘notebooks’ on ‘text-books’ prepared and published by the Text-Book Board under statutory authority. We, therefore, hold that the High Court Division was not justified in declaring the impugned Act to be unconstitutional being ultra-vires of Article 39(2) of the Constitution. [Para – 30]
Bangladesh National Curriculum & Ors Vs. A. M. Shamsuddin & Ors. 4 BLT (AD)-205
Article-40
The Rural Electrification Board took a decision barring all ex-employees of the said Board from participating in any tender to be floated by it. The secretary of the Board communicated the said decision under his office order dated January 30, 1986—the order of the Board is violative of Article 40 of the Constitution. [Para-2]
Chairman, Rural Electrification Board & Anr Vs. Abdul Jalil & Anr 5 BLT (AD)-264
Article – 42 Read with Ordinance No. 54 of 1985
Article – 7(3)
The Inclusion of the case property in the list of ‘Abandoned Property’ on 28.9.1986 without serving the statutory notice upon the occuperry as required by Article 7(3) of Ordinance No. 54 of 1985 appears to be wholly illegal and arbitrary — The enlisting of the case property in the list of ‘Abandoned Property’ in the circumstances of the case, thus must be held to be illegal, malafide, and without lawful authonty. [Para- 14 & 15)
Mrs. Lalima Begum & Anr Vs. Court of Settlement 5 BLT (HCD)-70
Articles – 42 (1), 102
Fundamental right to property — Writ petition — A person being a citizen of this country and continuously residing here should not be deprived of enjoining the fundamental application, such whimsical and highhanded action of the authority smocks of using legal grab for some ulterior purpose. [Para- 131
Bthi Quamrunessa Vs. Bangladesh & Ors 4 BLT (HCD)-3
Article – 55 (4)
The guidelines are a part of the service rights and those cannot be left to the realm of eventual public leakage. They must be sanctified officially by the authority competent to make rules — in the Instant case the Cabinet decision dated 3.11.91 without publication in the official gazette cannot be treated as a guideline and add there to that it was not an executive action in terms of Article 55 (4) of the Constitution. [Paras-41 & 421
Ministry of Establishment Vs. Shafluddin Ahmed & Ors. 5 BLT (AD)-22
Article-67
The respondents are validly elected as members of the Parliament but are not attending the Parliament without any leave and are not discharging their constitutional obligations but are engaged in some other activities prompted by political consideration namely for realisation of the demand for a caretaker Government—the action of the respondents cannot be called legal or constitutional but are violative of the provision of the Constitution and of democratic norms. [Para-21]
Md Anwar Hossain Khan Vs. Speaker of Bangladesh & Ors 3 BLT (HCD)-76
Article-78
Absence from session of the Parliament without leave of the Parliament cannot be a privilege for the members of the Parliament—the salary, emoluments, allowances and other benefits so received by the respondents are Illegal and unauthorised. [Paras-15 & 26]
Md Arwar Hossain Khan Vs. Speaker of Bangladesh & Ors 3 BLT (HCD)-76
Article-96 Read with Article 99 and
The Public Servants Retirement Act, 1974, Section-5
Appointment was cancelled offering one month’s pay—if such a Judges Service dependent upon the sweet will of the Appointing Authority the Principle of Judicial independence will be a mockery and public confidence in his decisions will be shaken the Public Servants Retirement Act under which the petitioners contract was made does not apply to a retired Judge of the Supreme Court. The appointment, removal and other terms and conditions of service of a retired Judge in a public office should not be governed either by ‘master- and-servant law’ or by any unequal contract. If it is not thought to be expedient to make any statutory provision in the case of such appointment, it is better that the original Article, 99 be restored putting total ban to appointment of a retired Judge to any public office whatever—subject to the observations, the petition is dismissed. [Para-5]
Justice Abdul Bari Sarker vs. Bangladesh 2 BLT (AD)-64
Article- 102
Section- 141 of the Code of Civil Procedure does not interns apply to proceedings in writ in the High Court Division under Article- 102 of the Constitution. But the court in its desertion can apply the principles as distinguished from the technical provisions of the Code of Civil Procedure to meet the exigencies of the situation in appropriate cases on the ground of justice equity and good conscience in what situations the principles of the Code of Civil Procedure will be applied and in what extent may perhaps be left to the wise discretion of the court itself. [Para- 15J
Moni Begum & Ors.Vs RAJUK & Ors. 2 BLT(AD)-71
Article- 102
Executive committee of the Matsajibi Samabaya Samity being dissolved under section 18(3) and a 5-member Ad-hoc committee being appointed under section 18 (4) of the Co-operative Societies Ordinance, 1984, the writ petitioner appellant preferred an appeal, although no appeal lay against such order before the District Registrar, who rejected the same by an order dated 23.10.93 against which the appellant moved the writ petition before the High Court Division which was also summarily rejected on the ground that the appellant did not preferred art appeal before the District Judge within 60 days.
It is procedurally absurd to ask the appellant to go to a higher appellate forum to obtain a verdict on the jurisdictional error of the first appellate authority the High Court Division failed to exercise its jurisdiction under Article 102 of the Constitution is not disposing of the appellants writ petition on merit and in requiring him to prefer a further appeal to the District Judge when the first appeal itself was incompetent in the eye of law. [Para- 10]
Noni Gopal Barman vs. Bangladesh & Ors 2BLT (AD)-36
Article- 102
Writ petitioner headmaster, being ex-official Member-Secretary of the Committee, whether it is formed under Regulation 4 (a) or under Regulation 20 (1), and the petitioner being a paid official, the writ petition itself is misconceived. [Para- 12]
Chairman Civil Aviation Authority Vs. K. A. Rouf & Ors 2BLT (AD)-116
Article- 102 Read with Martial Law Order No. 9 of Martial Law Regulation, 1982
(a) Dismissal from service petitioner’s representation dated 28-11-84 to Respondent No.2 Secretary Ministry of Law and Justice—Review Petition to the President and C.M.L.A. for cancellation of impugned order dated 15-11-84— Martial Law withdrawn on 11-11-1986.
Hare Krishna Das Vs President’s Secretariat and Others 1BLT (HCD)-13
(b) Proclamation of withdrawal of Martial Law dated 11-11-1977 Para-5 removal of difficulty in giving effect to provision of proclamation order of dismissal not final and conclusive-president competent to create a forum for review Respondent No. 1 directed to place all papers relation to review petition to the President for Review-Rule made absolute.
Hare Krishna Das Vs President’s Secretariat and Others 1 BLT (HCD)-13
(c) Interpretation of statute—
Proclamation of Martial Law Regulation 1982-Para-5 enabling section-creation of a forum-duty cast on Respondent No.1 to do needful relation to review.
‘The difficulty that has arisen as a result of withdrawal of Martial Law is not creating any forum for consideration of the review petition could only be removed by creation of a forum for consideration of such review petition.
And invoking jurisdiction of the Administrative Tribunal set up under Article 117 of the Constitution does not arise. The order to be challenged must be a conclusive order. So long as the review petition is not disposed of we cannot say that the order of dismissal passed by the authority of the President is a final order. Therefore the plea that there is an alternative remedy by way of filing an application before the Administrative Tribunal and the writ petition is not maintainable does not hold good”. [Para-6]
Hare Krishna Das Vs President’s Secretariat and Others 1 BLT (HCD)-13
“It is admitted by the petitioner as well as by the respondents that the President was competent to create forum for review under para 5 of the Proclamation of Martial Law as there is no forum available to review the application of the petitioner. Since the President has been provided with the enabling provision to create a forum under para 5 of the Martial Law Proclamation, we hold that respondent No.1, the Principal Secretary, President Secretariat, the old Sangsad Bhaban, Airport Road, Dhaka be directed to place the papers in connection with the review petition of the petitioner to the President for disposal of the said application in terms of rule by creation an appropriate forum for the said purpose.” [Para-7]
Hare Krishna Das Vs President’s Secretariat and Others JBLT (HCD)-13
Article- 102
All actions or decisions, administrative or quasi-judicial are amenable to judicial revenue under Art. 102 of the Constitution. The remedy of judicial review under Art. 102 of the Constitution is not governed by any law of limitation. This is an extraordinary remedy and should be sought with all possible expedition. The court is to balance the interests of the party or parties affected by a decision, and public interest. In considering the question of delay the court will consider whether the relief granted would be likely to cause substantial hardship or prejudice the rights of any other person. In the instant case no one will be prejudiced. The government was giving assurance to the respondent that his citizenship was under consideration and so he advisedly did not rush to the court earlier. The show cause notice dated 23 March 1992 compelled him to come to the court. So his writ petition was maintainable. [Para- 11]
Bangladesh Vs. Prof. Golam Azam & Ors 3 BLT (AD)-3
Article- 102
Encashment of Defence Savings certificates the Bank who acted as the agent on behalf of the Government, in refusing to pay the amount against the defence saving certificates merely on the ground that the petitioner was a guarantor in respect of the liability of the company taking loan from the Bank is illegal and without any lawful authority. [Para-7]
Md. Abdus Salam Vs Manager, Agrani Bank & Ors 2BLT (RCD)-234
Article-102
High Court’s extraordinary jurisdiction under Article 102—The High Court Division was not a court of appeal required to make determination of facts on its own. It could interfere with the findings of a tribunal of fact, If it could be shown that the tribunal had acted without jurisdiction on made any finding upon no evidence or without considering any material evidence/facts causing prejudice to the complaining party or that it had acted malafide or in violation of any principle of natural justice. In the absence of any of these conditions the interference by the High Court Division will itself be an act of without jurisdiction. [Para- 161
Govt. of Bangladesh Vs. Md. Jalil & Ors 3 BLT (AD)-193
Article- 102
Whether even after the withdrawal of Martial Law and repeal of M. L. 0.9 of 1982 the order of retirement passed by the authority earlier could be reviewed.
By inserting paragraph 1(A) of M.L.O. 9 of 1982 a right was created to aggrieved party to file an application for review and on such filing a duty was cast upon the authority to review the order passed earlier under paragraph 1 of M.L.O. 9 of 1982. The application for review was filed before the Martial Law was withdrawn and the said application was found to have been pending as the authority did not dispose of the matter earlier. Therefore the right accrued to the petitioner with the filing of the application for review during the period when the M.L.O. 9 of 1982 was in force is deemed to have been subsisting even after the repeal of M.L.O. 9 of 1982. [Para-61
S. M. Wadud Vs. Principal Secretary & Ors 3 BLT (HCD)-90
Article- 102
Respondent No. 4 filed the Redemption Case on 25.6.1973 under the P.O No. 88 of 1972, which was allowed by the respondent No. 1 on 15.6.1974—being aggrieved by the said order the appellant filed Writ Petition No. 1074 of 1974, by order dated 29.8.90— “the Rule discharged as abated”—An order dated 10.5.1992 passed by the respondent No. 1 in the aforesaid R.P Case directing him to handover possession of the disputed land to respondent No. 4 by 20.5.92 on the ground that the writ petition of the appellant had been dismissed—being aggrieved by the said order the appellant again filed Writ Petition No 1950 of 1992—High Court Division observed that the appellant had “admittedly” no right to invoke the jurisdiction under Article 102 of the Constitution at the time of revocation and withdrawal of Martial Law against the original order of redemption and as such that right has not been revived or restored. The impugned order, it was held, was not an independent order of eviction but towards implementation of the earlier order which was the subject matter of the previously abated writ petition and as such the Impugned order cannot be questioned on the ground of violability of the original order against which no fresh writ petition lies. Upon such view of the matter the writ petition was rejected summarily— Held : It is clear that on and from 10.11.86 there was nothing which prevented the appellant to move the High Court Division under Article 102 against the original order of redemption. That he did not invoke Article 102 of the Constitution until May 1992 was evidently because he was not disputed In his possession of the disputed land till he received the impugned order dated 10.5.92 which gave rise to a fresh cause of action. The High Court Division, it must be said, fell into an error in taking the view that the appellant had no existing right to invoke Article 102 against the order of redemption on the date the Martial Law was withdrawn and as such allowed itself to pass an erroneous decision in the matter—appeal allowed. [Para- 12]
Anwaruddin Bepari Vs. The Asst. Comm. (Land) & Ors. 4 BLT (AD)-52
Article – 102
Not maintainable—In the ensuing general election of members of Parliament respondent No. 3 submitted nomination paper before the returning officer and on scruting, Returning Officer accepted the nomination paper of respondent No. 3, being aggrieved there by the petitioner filed writ petition on the ground that respondent No. 3 has been convicted by various special tribunals for misconduct under section 5 (2) of Act 11 of 1947. Appeals against the said judgments and orders are still pending and the respondent No. 3 has been serving the sentences.
Held : As no question of Coram non judice or malice in law raised in the writ petition, on the ground that the writ petition was not maintainable. [Paras-8 & 9]
A. K. M. M. Islam Vs. Bangladesh Election Comm. & Ors. 4 BLT (AD)-159
Article- 102
Parliamentary election process—As per election schedule by the election commission, the appellant along with respondent Nos. 1-3 filed nomination papers to the Returning Officer—at the time of scruting respondent No. 1 raised an objection before the returning officer alleging that the appellant did not then attain 25 years of his age and as such he was not qualified for being a candidate in that election. The returning officer rejected the objection and accepted the appellants nomination papers as a valid one—High Court Division declaring that the acceptance of his nomination paper by the returning officer was without lawful authority and is of no legal effect as he was less than 25 years of age on the date of submission of the nomination paper—Held: In the present case, acceptance of nomination paper, the returning officer was not coram non judice and there is no malice in law, expressly pleaded and established, so as to attract the jurisdiction of the High Court Division under Article 102 of the Constitution. The High Court Division acted without jurisdiction in interfering with a parliamentary election process— relied on 41 DLR (AD) 68. [Para- 12]
Md. Mahmudul Haque Vs. Md. Hedayetullah & Ors 4 BLT (AD)-184
Article- 102
As a matter of fact the pensionary benefits which the petitioner claims relates to the period which is referable to his active service in Bangladesh Army, in writ petition is not maintainable under Article 102 of the Constitution. [Para-5]
S. M. Reza Vs. Ministry of Defence & Ors. 5BLT (AD)-202
Article-102
In the instant case the appellant has made out a case that he had no opportunity of availing of the alternative remedy in section 30 of the Special Powers Act. If and when such a case is made out it will be improper, inequitable and indeed a denial of justice if the door is shut upon the face of the accused person. The High Court Division was wrong in holding that the instant writ petition was not maintainable. The appellant had not reasonable opportunity to avail of the alternative remedy. In such circumstances, his writ petition was fully maintainable. [Para-13]
Neser Ahmed Vs Govt. of Bangladesh 5 BLT (AD)-231
Article- 102
Writ of certiorari — The jurisdiction in the nature of certiorari is not so wide or large as enable the High Court Division to convert itself into a court of appeal.
In the present case the learned Judges of the High Court Division while considering the judgment of the Court of Settlement sat over the judgment as a court of appeal and reappraised the evidence and materials on record. In exercising the jurisdiction in certiorari the learned Judges sat over the judgment of the tribunal as a court of appeal and reversed the findings of fact of the Court of Settlement. The learned Judges on consideration of the materials and evidences on record took a different view that Md. Nasim was the son of original allottee Yahiya as the original title deed, and original receipts showing payment of rent, taxes etc. were produced from the custody of Respondent No. 1. The learned Judges relied very much on this circumstantial evidence. The learned Judges also found that respondent No. 1 having failed to give the exact date of death does not ipso facto disprove the assertion that Yahiya considered the materials on record is in the fact the manner in which a court of appeal disposes of an appeal. The learned Judges of the High Court Division exceeded their jurisdiction while exercising their power under certiorari to interfere with the judgment of an inferior tribunal. [Para-5]
Govt. of Bangladesh Vs. Asraf Ali & Anr 5 BLT (AD)-261
Article- 102
Writ of Mandamus — for a direction to issue certified invoice (BDC) to the petitioner on the basis of invoice — Held: It would thus appear from the circular that the certification of the invoice by the Bangladesh Customs is necessary. The question before us is whether in the present case a direction Is necessary from this court to respondent No. 3 to issue a certified invoice (BDC) as prayed for by the petitioner who is the exporter. Respondent No. 3 has stated that there is nothing in the Customs Act, 1969 which requires to issue such a certified invoice but in view of the direction of the Bangladesh Bank (Annexure-Y) it appears to us that such a certificate is necessary but there is nothing in the circular to suggest that the certification of the invoice has to be obtained by the exporter.
The respondent No. 3 has categorically stated that no such Invoice Annexure-O was placed before him. The invoice like other import documents is to be submitted by the importer, and the importer not having submitted this document with the Bill of Entry the question of certifying the original invoice (Annexure-C) does not arise. We are therefore unwilling to pass any order directing the respondent No. 3 to certi1ring the original invoice (Annexure-C) claimed to have been submitted by the petitioner. [Para – 6]
PKS Ltd. Vs. Chairman. NBR & Ors 5 BLT (HCD)-81
Article- 102
Petitioner, former Chief of Army Staff, challenging four notifications, published in the Bangladesh Gazette—Maintainability.
All military personnel especially the post of Chief of Army Staff which is a position of trust, hold their posts during the pleasure of the President—We are of the opinion that the High Court Division rightly dismissed the writ petition summarily because it could not be established that the doctrine of the pleasure of the President is inhabited by an allegation of malailde in the case of military personnel. The remedy, as always is through representations and memorandum to be submitted to the President (and not to the Prime Minister) and the petitioner has no other remedy either under Article 102 of the Constitution or in the civil Court. [Para-81
Lt. Gen. Abu Saleh Md. Nasim Vs. Bangladesh 6 BLT (AD)-271.
Article- 102
Maintainability – Suit was filed by the petitioner for a decree declaring that the petitioner Is the sole 16 annas owner and possessor of the suit property and it is not an abandoned property in the year 1980. Government appeared in that suit and having knowledge about the proceeding even then it was listed in the abandoned list, long after the institution of the suit—it has been made in clear violation of the proviso(b) of section 5 of the Abandoned Building (supplementary provisions) Ordinance, 1985—writ petition Is maintainable even without going to the court of settlement. [Paras-8,9 & 11]
Dr Shamim Akhtar Vs. Ministry of Public Works & Ors 6 BLT (HCD)-177
Article- 102
Jurisdiction — any act or thing done or any trial taken place even under Martial Law Proclamation, Regulation or Order, can be challenged under Article 102 of the Constitution, if it is done or made without jurisdiction, comm non judice or malafide. [Para-62]
Shahariar Rashid Khan Vs. Bangladesh & Ors. 5 BLT (HCD)-38
Article- 102
Not maintainable—In fact the petitioners came to the Writ Court for a direction upon the respondents to finalise the agreement only on the basis of the recommendation of the Cabinet Committee as approved by the Prime Minister—Held : The recommendation of a Cabinet Committee cannot be enforced through a writ for the simple reason that it is not law. [Para-5]
Professor Abdur Rahim Khan & Ors Vs. Ministry of Industries & Ors 7 BLT (AD)-313
Article- 102
We find that the petitioner company challenged the registration of respondent No. 2-union dated 9-10-97. The petitioner company did not challenge the refusal of respondent No. 1 to file an application before the Labour Court for permission to cancel the registration. In that view of the matter we do not think that the writ petition was maintainable because cancellation of registration is always subject to obtaining of permission from the Labour Court and a declaration that the registration itself was illegal amounts to cancellation of registration through a backdoor. [Para-61
Al-Muquaddern Steel Mills Ltd.. Vs. The Registrar of Trade Unions, Dhaka & Ors 7 BLT (AD)-307
Article- 102
Due to the fault of the lawyer, could not prefer the appeal within 30 days provided under Art ha Rin Adalat Act.
The jurisdiction of the High Court Division under Article 102 of the Constitution is an extraordinary jurisdiction which can only be exercised In proper cases if the High Court Division is satisfied that no other efficacious remedy is provided by law. This extraordinary jurisdiction is not available as an alternative remedy provided under Section 7 of the Artha Rin Adalat Am, 1990 which the petitioner did not avail of. [Para-5]
BCIC Vs. B.C.C Interna.tionol Overseas Ltd. & Ors. 7 BLT (AD)-31
Article- 102
Jurisdiction under Article 102 of the Constitution The view of the High Court Division that the writ court is not competent to interfere with an administrative order is totally wrong. No action detrimental to the vested right of an individual or corporate body can be taken except in accordance with law. [Para- 121
Brahmanbaria Pourashava Vs. Ministry of Land & Ors 7BLT (AD)-95
Article- 102
Writ Jurisdiction—Writ petition arises out of a contract—Held: Basically, the principle Is that a writ petition cannot be founded merely on contract, but when a contract is concluded the contractor has a legitimate expectation that he will be dealt with fairly. The petitioner could have asked the respondent to supply the water tanks and generator according to specification and could have given him an opportunity to complete the work according to specification, taking the anomaly during re-examination to be correct; but to cancel the contralto unilaterally without regard to subsequent developments is a high feat of arbitrariness which rightly attracts the writ jurisdiction. [Para-6]
Dhaka Water Supply & Sewerage Authority Vs. Superior Builders & Engineers Ltd. 7BLT (AD)-142
Article- 102
In view of the facts and circumstances of the case, the lawful order the learned Judges of the High Court Division could pass under law was to direct the appellants either to derequisition the case property under Section 8B of the Act or to finally acquire the same by publishing in the Bangladesh Gazette notification under Section 5(7) of the said Act. That is all the learned Judges could have done In exercise of their jurisdiction but then the learned Judges of the High Court Division wrongly exceeded their jurisdiction in assuming the executive functions of the officials directing release of the case property in favour of the writ petitioner-respondents. [Para-9)
Govt. of Bangladesh & Ors. Vs. Abdul Wahab Mia & Ors. 7 BLT (AD)-169
Article- 102
The writ jurisdiction was quite in appropriate to assail the order of cancellation of lease which was done under the specific terms of the lease agreement itself. [Para- 11]
S. Rafique Chowdhury Vs. Bangladesh & Ors. 7 BLT (AD)-182
Article-102
Locus standi—The petitioner filed the writ petition on his own behalf and on behalf of the members of public in general styling himself as a person interested to espouse the cause of the public—the petitioner like other boatmen who are owners of boats has acquired a customary right from time immemorial in the now ka ghat in question— Held : The writ petition was not maintainable. [Para-4]
Md. Nasir Uddin Vs. Govt. of Bangladesh & Ors. 7 BLT (AD)-302
Article- 102
Jurisdiction—Disputes which arise from a case of violation of contract is not cognizable under writ jurisdiction. Paras-8 & 9
BRTC Vs. Noor Uddin & Ors. 7 BLT (AD)-291
Article- 102
Whether the petitioner having had taken oath on the basis of declaration of the result under Rule-39 of the Union Parishad (Election) Rules, 1983, the impugned letter that the oath was administered through mistake on the basis of unofficial declaration of the result of election has been issued without any lawful authority The Gazette Notification was published in January 8, 1998. On the other hand, the oath was administered in February 5, 1998. Thereafter, it Is very difficult for us to hold that the oath administered to the petitioner after publication of the name in the Gazette Notification of respondent No. 8 Most. Aklima Bibi was on any legal basis and by the impugned letter and the publication of the Gazette Notification any of her legal or constitutional rights has been infringed. Thus, in absence of such right the petition is also not maintainable. IPara-31
Most Nasima Khatoon Vs. Election Commissioner & Ors 7 BLT (HCD)-315
Article- 102
Section 18 of the Pourashava Ordinance (XXVI of 1977)—Because of contingency an officer of over 100 years old Municipality or a Government Servant was acting as an Administrator of the said Municipality when Section 18 of the Pourashava Ordinance, 1977 only applies to a newly declared Municipality and in the absence of satisfaction that a contingency has arisen requiring the respondent No. 3, who filed nomination paper on 1-9-96 for contesting in the election of the said Municipality, to replace an officer of the said Municipality to Administrator of the said Municipality, the appointment of respondent No. 3 including the Committee is declared to have been issued without lawful authority and such appointment is an express will to appoint them under Section 18 of the said Ordinance and not merely made inadvertently or misquoting of a wrong source of power. [Paras-4 & 5]
Taimur Alarn Khondker & Ors Vs. Govt. of Bangladesh & Ors 7BLT (HCD)-346
Articles-102 (1) and (2) (a)
“any person aggrieved”
Per A. T. M. Afzal, CJ.: The appellant is the Secretary General of the Bangladesh Environmental Lawyers Association (BELA) arid the said organisation is working in the field of environment and eco1or. In the writ petition the activities of FAP, FAP-20 and the FPCO have been impugned on the ground, inter alia, that the said activities would adversely affect more than a million human lives and natural resources and the natural habitat of man and other flora and fauna and that they aroused wide attention for being allegedly anti-environment and anti-people project — Held : I am of the view that a national organization like the appellant, which claims to have studied and made research on the disputed project, can and should be attributed a threshold standing as having sufficient interest in the matter, and thereby regarded as a person aggrieved to maintain the writ petition subject to the objection or objections as may be raised by the respondents if a Rule is issued ultimately. [Para – 18]
Per Mustafa Kamal, J: As to the apprehension of flood gate, the people as a whole is no doubt a flood and the constitution is the sluice-gate through which the people controls its own entry, our courts will be prudent enough to recognise the people when the people appears through a people. Taking up the people’s causes at the expense of his own is a rare phenomenon, not a common place occurrence.
We hold therefore that the association appellant was wrongly held by the High Court Division not to be a “person aggrieved” in the facts and circumstances of the case and we hold further that the appellant is “any person aggrieved” within the meaning of both Article 102 (1) and Article 102 (2) (a) of the Constitution. [Paras – 55 & 56]
Per Latifur Rahman, J: I hold that a person approaching the Court for redress of a public wrong or public injury has sufficient interest (not a personal interest) in the proceedings and is acting bonafide and not for his personal gain or private profits, without any political motivation or other oblique consideration has locus standi to move the High Court Division under Article 102 of the Constitution of Bangladesh. [Para – 78]
Per Bimalendu Bikash Roy Choudhury, J: In the facts of the statements in the writ petition BELA is concerned with the protection of the people of this country from the ill-effects of environmental hazards and ecological Imbalance. It has genuine interest in seeing that the law is enforced and the people likely to be affected by the proposed project are saved. This interest is sufficient enough to bring the appellant within the meaning of the expression “person aggrieved”. The appellant should be given locus standi to maintain the writ petition on their behalf. [Para – 106]
Dr Mohiuddin Farooque Vs. Bangladesh 5 BLT (AD)-25
Article-102 (1)(2)
Gazette Notification issued by the Chief Election Commissioner dated 15.10.1986, M.L.O. No. 1 of 1985 (C.M.L.A. No. 1 of 1985) — Articles 28,29, 30, 34 and 41 of the Constitution of People’s Republic of Bangladesh — Petitioner challenged legality of the election held in 1986 to the post of President Lt. Gen (Retd.) H.M. Ershad — Writ Petition No. 344 of 1987 was rejected on the ground that the election to the office of the President was given protection by the Seventh Amendment to the Constitution of Bangladesh. [Paras-1 & 5]
(b) Interpretation of the Constitution Seventh Amendment (Act No. 1 of 1986).
All actions of the Govt. to 11-11-86 cannot be questioned in any court of law including the Supreme Court due to the blatant protection given by the Seventh Amendment. [Paras-6 & 8]
Mr. Yar Ahmed Vs Hussain Mohammad Ershad 1 BLT (HCD)-12
Article-102 (1) (2) (a) (ii)
When Hoque Soap 786 Laundry Soap cannot be advertised in the abbreviation of the words Bismillahir Rahman nurRahim—The words ‘Bismillahir Rahmannur Rahim’ should not be read into as antiIslamic or anti religious-—There is no illegality in the use of symbol 786 in the Hoque Laundry Soap—It cannot be prohibited in the advertisement.
Use of a mark “Allah” in the shoes produced locally by Bata created an adverse reaction in the minds of the Muslim. But the Hoque Laundry Soap and Haque Batteries are not shoes to offend religious feelings when cleanness by soap is a part of faith. The use of the figure 786 cannot be read as “Bismillahir Rahman-ur-Rahim’ by all and even if it means no, the writing of 786 anywhere in laundry soap or in the batteries is not anti-religious or anti-Islamic and as such use of the figure 786 cannot be prohibited in the advertisement. [Paras-7 & 8]
Hoque and Co. Ltd Vs Ministry of Information 1 BLT (HCD)-49
Article-102 (2) (a) (1) and Articles-27 and 29
(a) Writ of Mandamus-copyists Extra Moharar Nakal Nabis-appointments to 475 Posts — Senonty suppression — Rule 310 (a) — Foundation of claim-department instructions-S. 69 of the Registration Act. Statutory Rules-Authority of Inspector General of Registration Rule-making power vested in I.G.R. creation of new posts for appointment is not a subject within the Rule-making power-writ fails. [Paras-l & 17]
(b) It is a well settled principle of law that in order to get a rule of mandamus the petitioners must show that their claim is rooted in a statute or statutory rule
(c) No exclusive right to the appointment in the newly created posts of muharrars-l G.R. instruction in paragraph 310 means filling up the new posts on the basis of selection from the T.C. muharrars. [Para-17]
(d) Natural justice the precise purpose of invoking the principles of natural justice is to supplement the statute and not to supplant it. Para- 18
(e) Writ petition is in a representative form — All those who will be affected by the writ petition must be made parties to the petition — Rule Nisi fails. (1968 SCMR 995 relied on). Para-22
Md. Nurul Islam & another Vs Bangladesh 1 BLT (HCD)-4
Article-102 (2) (h) (1)
Order of detention—Pendency of the Criminal Case and mention thereof on the grounds of detention will not make the order of detention and the detention of the detenu on the basis of the said order illegal unless the said criminal case and facts constituting the criminal case and the pendency of the criminal case itself is used as grounds of detention. [Para- 10]
Nasima Begum Vs. Home Affairs & Ors. 3 BLT (HCD)-140
Article – 102 (2) (a) (I)
Writ of Mandamus — The petitioner is the owner of the house in question and it was notified to be an abandoned property. He filed an application before the Court of Settlement praying for exclusing of the said house from the list of abandoned property and for restoration of possession of the same — the Court of Settlement after taking evidence and hearing both parties, allowed the application and directed the respondent to restore possession of the house to her—Held : It appears that the respondent failed to comply with the order passed on 19. 9. 1988 directing the respondent to deliver possession at once and until now the defendant has not take any step to implement the said order which it is required by law to do — Rule is made absolute. [Para – 9]
M. Khamunnessa Vs. Bangladesh 4 BLT (HCD)-128
Article-102 (2) (b) (I)
The District Magistrate by his order detained the detenu under section 3 (2) of the Special Powers Act, 1974 — the detention has been made out of personal grudge against the detenu — The order of detention of the detenu is declared to be illegal and without lawful authority. [Paras-5 & 7]
Alhaj Abdur Rahman Vs. Ministry of Home Affairs 4 BLT (HCD)-78
Article-102(2) (a) (ii)
Whether after release of a detenu from detention an application be filed by the detenu himself under Arficle I 02(2)(a) (ii) of the Constitution for a declaration that the order of detention should not be declared to have been made without lawful authority and of no legal effect.
Held- The learned Judges of the High Court Division on consideration of the grounds of detention served on the detenu found that the grounds relate to non-payment of loan taken by the company of which respondent No.1 was the Managing Director. According to the learned Judges the main object of detention appeared to be realisation of the loan which was not contemplated under section 3 of the Special Powers Act and consequently the learned Judges found no nexus between the order of detention and the grounds served. The learned Judges found that the order of detention was passed without any lawful authority and is of no legal effect. The learned Judges further found that respondent No.1 was released after executing some papers transferring his mill and after doing certain other acts. The learned Judges held that the purported action of detaining respondent No.1 being not authorised by law respondent No.1 was entitled to such a declaration under Article 102(2) (a) (ii) of the Constitution. We also find that in the facts and circumstances of the case, respondent No.1 is entitled to such a declaration as has been found by the learned Judges of the High Court Division. [Para-6]
Govt. of Bangladesh Vs. Begun Suriya Ashraf & Ors 5 BLT (AD)-213
Article- 102(2)
In the instant case the constraint of relinquishing the office of Mutawalli prior to bringing an appeal is non relaxable. Therefore the High Court Division was wrong in summarily rejecting the writ petition merely because the appellant had an alternative remedy under sub-section (2) of section 32 of the Waqfs Ordinance, 1962. [Para- 10]
Tafizul Huq Saricer Vs. Bangladesh & Ors 6 BLT (AD)-285
Artlcle—102(2)(a)(ii)
The High Court Division can only make a declaratory order and nothing more and unless it is required by law to do it cannot direct any authority to do a particular thing. [Para-22]
Bangladesh Vs. Mahbubuddin Ahmed 6 BLT (AD)-185
Acticle-102 (2) (b) (ii)
Aggrieved person—Any citizen of the State can maintain an application in the nature of quo warrant to if he finds that any body is holding any public office of flagrant violation of constitutional provisions or in violation of any other law. Be that as it may the petitioner is a practicing Advocate of this Court and a conscious citizen of the country and he has every right to move this Court under Article 102 of the Constitution if he finds that any person is appointed to any post in violation of any provision of law or the Constitution. [Para-9]
Md. Idrisur Rahmari Vs. Md. Shahid Uddin Ahmed & Ors. 7 BLT(HCD)-158
Articles-102 and 104
The court is of the opinion that the order of a Session Judge u/s 439A though may be illegal, the jurisdiction of the High Court Division under Section 561 A Cr. P.C. cannot be invoked in view of sub-section (4) of Section 439 Cr. P. C. — The aggrieved party has several remedies, (i) he may make a writ petition under Article 102 of the Constitution, (ii) the aggrieved party may move a special leave petition to the Appellate Division against the order of the High Court Division rejecting the application u/s 561A Cr. P. C. on the ground of lack of jurisdiction and invoke the interference of the Appellate Division under Article 104 of the Constitution, (iii) he may move a special leave petition to the Appellate Division directly against the order of the Sessions Judge passed u/s 439A of the Code construing the said order of the Sessions Judge to be an order passed by the High Court Division u/s 439 of the Code. [Paras-47 & 56]
The Supreme Court under the Constitution has been given the responsibifity to interpret the constitutional provisions and the ordinary laws of land and to see that none of the organs of the State including itself transgress into the field preserved to another organ of the State. IPara-531
Mafizuddin & Others Vs Alauddin & another 2 BLT (HCD)-53
Article-102 (4)
An interim order — The writ petitioner a businessman, imported ten used motor cars from Japan opening letter of credit on 29.5.97 under ihvoice of the same date. The cars arrived at Chittagong Port and the writ petitioner submitted Bias at Entry on 24.6.97. The Customs Authority computed and assessed duties and taxes thereon at the Yellow Book value of the cars and imposed 40% to 60% supplementary duty and 2.5% development surcharge by assessment order dated 1.7.97. The writ petitioner challenged the assessment in the instant writ petition — Held The writ petitioners claim of assessment on invoice value and not on Yellow Book value is a matter of interpretation and not a question of jurisdiction to assess customs duties. So the writ petitioner has to pay Yellow Book value before his goods are released. He may not pay at the moment supplementary duties at the rate prescribed in the Finance Act, 1997, but he must pay at the rate prescribed in the Finance Act, 1996 before release of his goods — The writ petitioner need not pay the development surèharge before release of his goods. For protection of Government revenue, the writ petitioner will furnish Bank Guarantee for the unrealised part of the duties levied. [Para-20]
Commissioner of Customs Vs. Giasuddin Chowdhury & Anr 5 BLT (AD)-274
Article-102 (5)
Whether the impugned order of retirement not being art order of Military Court or Tribunal, cart be challenged as member of the Army Medical Corps in the High Court Division in its writ jurisdiction on ground of violation of Fundamental Right—the answer is in the negative.
The appellant is not entitled to any remedy under Art 102 not because he was a member of a disciplined force but because he was holding a service under the pleasure of the President, unrestricted by any constitutional provision similar to those of Article 135. [Para-8]
A member of the disciplined force can be no aggrieved person and can also move the High Court Division for enforcement of a fundamental right subject to the provision of Art. 45 of the Constitution. There are however, certain constitutional limitations of the judicial review of an order passed of action force against member of a disciplined force in the country. Reading clause (5) of Article 102, Article 134 and Article 45 of the Constitution together it is viewed that as member of any disciplined force of Bangladesh will be entitled to any remedy under Article 102 if he is aggrieved (i) by any decision of a court of tribunal established under law relating to the defence services unless that decision is coram non judice or malafide, or (ii) by an order affecting his terms and conditions of service passed by or by order of the President, or (iii) by any violation of fundamental right resulting from application of a disciplinary law for the purpose of ensuring the proper discharge of his duties or the maintenance of discipline in the disciplined force. [Para- 161
Colonel (Ret) M. H. Ali Vs. Bangladesh & Anr 3 BLT (AD)-76
Article- 102 Read with Article-7
As to whether the petitioner is aggrieved within the meaning of Article 102 of the Constitution.
Petitioner is a citizen, voter and cast vote while the general election held in 1991 and that upon successful completion of the said general election, the 300 members have been elected as members of the Parliament but they do not represent any particular constituency but they are the members of the House of Nation and— apart from Article 7 of the Constitution the petitioner has got a locus standi to file writ application by calling in question the conduct and actions of the respondents for getting appropriate relief—every member of the country including the petitioner has a right to challenge such move in order to protect. prescribe and safeguard the Constitution. [Para- 13]
Md. Anwar Hossain Khan Vs. Spealcer of Bangladesh & Ors 3 BLT (HCD)-76
Article – 104
Respondent No. 1 filed Administrative Tribunal case praying for a declaration that he has been the Director/Deputy Secretary with effect from 18.4.81 or in the alternative from 29.6.8 1 and also for a declaration that the placement of the appellant and respondent No. 7 above him in the seniority list are illegal and void — In this case appellant was not initially made party. At the time of filing of the case, the appellant was serving abroad in Bangladesh Mission. Notice was served upon the appellant through Bangladesh foreign office but he was not allowed to defend his case by engaging his advocate of choice the case was allowed by the Administrative Tribunal. The appeal being barred by 80 days the same was dismissed as time barred—Held We now find that no remedy is available to the appellant, though a gross injustice has been done to him for no fault or latches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view of the matter, we thought it to be a most appropriate case to exercise our jurisdiction under Article 104 of the Constitution—appeal is allowed. [Para-13
Rezaul Hasan Vs. Badiuzzaman Khan & Ors. 4 BLT (AD)-116
Article- 104
Having considered the bulk of the amount of compensation and for doing complete justice the amount of compensation has been reduced by 50%. [Para-4]
Bangladesh Vs. Luxmi Bibi & Ors. 2 BLT (AD)-182
Article- 109
The power of superintendence and control over all Courts subordinate to High Court Division has been conferred by the Constitution under Article 109 of our Constitution and that cannot be taken away by any legislation other than by a legislation amending the Constitution. If the subordinate Courts acted beyond jurisdiction and passed orders in the colourable exercise of power we do not find any reason why Article 109 shall not be attracted, more so, when the orders passed appear to be manifestly without jurisdiction. [Para-2]
United Commercial Bank Ltd. Vs. M/S Freshner Bucket & Redging Industries & Ors 6BLT (HCD)-182
Article-111
It is plainly the Appellate Tribunal expressed the view contrary to that taken by the High Court Division that if two members of the Tribunal pronounce a judgment it would not be a case of coram non judice. We would have examined this view if there was an appeal by the respondents from the judgment of the High Court Division in the writ petition. But since there is no appeal from that decision before us, we shall dispose of this appeal on the basis that it was not for the Appellate Tribunal to question the correctness of the decision of the High Court Division given in its constitutional jurisdiction. It was plainly and completely obligatory on the part of the Appellate Tribunal to act in accordance with the law declared by the High Court Division. The letters of Article 111 of the Constitution may not apply in terms to the Tribunal but the spirit behind them, we have no hesitation to hold, clearly requires that the decision given by the High Court Division must be followed by the Tribunal. [Para- 15]
Miss Shaheda Khatun Vs. Administrative Appellate Tribunal & Ors 6 BLT (AD)-259
Article- 116
Public interest—When a declaratory judgment is passed by a Court it is usually retrospective in nature, unless otherwise indicated. Therefore the interpretation of Article 116 of the Constitution given by the High Court Division will be operative ever since the amended Article 116 is in operation— While therefore affirming the impugned judgment and order of the High Court Division, we declare that all posting of all persons as Magistrates exercising judicial functions not made in consultation with the Supreme Court before 16.6.1999 stand validated, and all orders made, all judgments and sentences and other orders passed, all acts and things done and actions and proceeding taken and br continuing, subject to the decision of an appellate/revisional authority, if any, and all past and closed transactions, all before 16.6.1999 are hereby ratified and confirmed and are declared to have been validly made, done or taken in the public interest. [Paras- 10 & 11]
Government of Bangladesh Vs. Md. Idrisur Rahmnn Advocate & Ors. 7 BLT (AD)-271
Article- 116
In appointing, giving promotion, granting leave and taking disciplinary actions against any Magistrate, including C.M.M. in question. exercising the judicial functions, the President is under legal obligation to consult with the Supreme Court. [Para-8]
Md. Idrisur Rahman Vs. Md. Shahid uddin Ahmed & Ors. 7 BLT (HCD)-158
Article – 133
Article 133 of our Constitution is clearly an enabling provision which confers certain powers but does not impose any duty to legislate. It is not obligatory for the Parliament to make laws. No Court can direct the Parliament to make laws. Nor it is obligatory for the President to make rules. No Court can similarly direct the President to make rules, because the rule-making power of the President is identical with that of the Parliament — the impugned notifications dated 10-10-91 and 4-12-91 we find that those were issued under orders of the President, i.e., in terms of Article 55(4) of the Constitution and have been issued by the authority competent to frame rules, i.e.. by the President under the proviso to Article 133. These notifications have the precision of rules and are general in nature in their application to promotion to the posts of Joint Secretary and above and Deputy Secretary and they have the force of law. They are not grayish in nature. There has been no constitutional derailment and we can only express a wish that maximum matters pertaining to the service of the Republic should be brought under the umbrella of law or rules under Article 133, but it might be useful to remember that in spite of the existence Qf Article 309 in the Indian Constitution for nearly half a century, neither the Union Government nor a State Legislature has so far made any comprehensive law to regulate the recruitment or conditions of services relating to employment under the Union or a State Government.’ (Basu, Commentary on the Constitution of India, Silver Jubilee Edition, Vol. M.P. 14). Only piecemeal provisions have been made. The rest are governed by administrative decisions. We should not lament too much. [Paras – 27 & 32]
Ministry of Establishment Vs. Shafiuddin Ahmed &Ors. 6 BLT (AD)-22
Article- 134
Malafide—In the instant case the two reports of a Court of Inquiry and a Commission of Inquiry were confidential documents.
The Court of Inquiry and the Commission of Inquiry were constituted by the Government in exercise of the investigative power of the State to inform itself as to the state of affairs when the cyclonic storm and tidal bore hit the country in the night between 29 and 30 April, 1991.
It was not for public information and consumption, but for fact-gathering purpose of the Government. If after gathering facts the President has a choice of action to be taken in respect of those on whom responsibilities have been fixed then the selection of choice cannot be called malafide as long as the reports remain confidential documents. By the impugned order dated 4.6.1991 annexed to the writ petition the writ petitioner was not given any stigma or was not blamed in any way for damages caused to the vessels of Bangladesh Navy by the cyclonic storm and tidal bore. It remained within the special knowledge of the President as to the facts revealed in the two reports. As long as those facts are not made public documents available to the public at large, including the petitioner, those reports and the decisions taken thereon remained the exclusive preserves of the President. No cause of action can be found on those confidential reports. [Para-8]
Rear Admiral A. A. Mustafa Vs. Ministry of Defence 7 BLT (AD)-364
Article- 135
Provisions of Article 135 cannot be invoked by the employees of such corporations as they stand outside the class of employees referred to therein as persons in the service of the Republic; nevertheless, these employees are not governed by the law of master and servants either: they will be governed by the rules and regulation of their corporation and in the absence of any service rules or of any agreement of employment their termination of service shall be governed by the principle of natural justice which requires a pre-hearing. Such principle is not applicable in the instant case. [Para-81]
Bangladesh Bank & Ors. Vs. Mohammad Abdul Mannan 2 BLT (AD)-1O1
Article-140 (2)
In clause (2) of Article 140 the word ‘and’ contained in the words “subject to the provisions of any law made by Parliament, and any regulation’ should be read as ‘or’. There is a comma after the word “Parliament” and the comma suggests that the law made by Parliament and regulation made by the President are disjunctive, not conductive. If the Parliament makes any law earlier then it will be a case of occupied field. The regulations made by the President will only supplement the law and will not be inconsistent with it. But if the President makes the regulations earlier then that will occupy the field until a law is made by Parliament. If the law made by Parliament and the regulations already made by the President can co-exist without being in conflict with one another, well and good. but if there is a conflict between the law made by the Parliament and the regu lations made by the President. the law will prevail the words “the President shall consult a commission” is not mandatory. When, however, a law or regulation is framed requiring consultation but no consultation is made, the Court may interfere in the public interest. [Paras – 15 & 16]
Ministry of Establishment Vs. Shafiuddin Ahmed &Ors. 6 BLT (AD)-22
Article- 142
The Indemnity Ordinance, 1975 was promulgated not only to justify unlawful acts ex post facto, but to stop any legal or other proceedings against persons involved in the change of Government of Bangladesh and the Proclamation of Martial Law on the morning of 15th August, 1975—I must say that there is a fundamental distinction between a
“Constitutional Law” and an “Ordinary Law” Constitutional Provision conceptually has distinct and qualitative feature separate from Ordinary Law which is in reality, the ordinance itself — For such amendment the Procedure of Article 142 of the Constitution is not necessary. Simple Majority is enough to repeat the Ordinance as it is an ordinary existing Law. [Paras-63 & 64]
Shahriar Rashid Khan Vs. Bangladesh & Ors. 7 BLT (AD)-186
Article- 142
The Indemnity Ordinance was expressly made by the President in exercise of the powers conferred by clause (1) of Article 93 of the Constitution. To give approval to a law is a qualitatively different act from enacting the law itself. An Ordinance when approved in the Constitution remains an Ordinance, it does not become a part of the Constitution. [Para-28]
Shahriar Rashid Khan Vs. Bangladesh & Ors. 7 BLT (AD)-186
Articles- 142 & 149 Read with Paras 3A(7) & 18 of the 4th Schedule
Indemnity Ordinance No. 50 of4 1975 is not a part of the Constitution, rather it is an ordinary law protected and saved in the category of “other laws” in Paragraphs 3A and 18 of the 4th Schedule. In pursuance of Paragraphs 3 A(7) of the 4th Schedule and Article 149 of the Constitution, this Ordinance has been legally repealed by smile majority members of the parliament as such the Indemnity (Repeal) Act, 1996 does not offend either Paragraphs 3A and 18 of the 4th Schedule or Article 142 or any other provisions of the Constitution. [Para- 73]
Shahriar Rashid Khan Vs. Bangladesh & Ors 5 BLT (HCD)-38
Article-142 (1) (a)
Constitution 13th Amendment Act No I of 1996 has challenged — by enactment of this Act of 13th Amendment, Article 56 of the Constitution has been amended and f Article 56 is amended, then a referendum on the assent to the bill by the President will be necessary as contended by the petitioner in person.
Held: It appears from the Provisions of the 13th Amendment Act that legislature very cleverly put the words ‘ineffective’ for a limited period and after that period the provisions will revive automatically. Since the provisions of the 13th Amendment Act, as it appears to us, do not come within definitiori of alteration, substitution or repeal of any provision of the Constitution and since for temporary measures some provisions of the Constitution will remain ineffective, we do not find any substance in the submission of the petitioner that Article 56 of the Constitution had been in fact amended by 13th Amendment Act — We find that no unconstitutional action was taken by the legislature. [Para – 4]
Syed M. Moshiur Rahman Vs. Bangladesh 4 BLT (HCD)-208
