Constitution of Bangladesh, 1972

 

 Article-102

Mistaken Identity -Writ Maintainable

It appears that one Abdul Mazi Howladar, son of Hujjat Ali Howladai village- Eksherpara, Union Parishad Gaba Ram Chandrapur, Profession Haluti was shown at Serial No.72 and one Abduf Matin  Howladar, son of  Hujjat Ali, Profession Service of the self same village and Union Parishad was shown at Serial No. 140. According to Mrs. Sathil Hossain, the petitioner is Abdul Matin Howladar whose serial number is 140 the Annexure-D and Abdul Mazid Howladar, whose name appears at serial No.72, may be the convict in the case.- Held; we have no hesitation in holding that the petitioner is not one of the convicts in the Sessions Case no.28 of 1984 of the Court of Assistant Sessions Judges Jhalakati. and that he is being held in Jail  without lawful authority and in an unlawful manner.

Matin Miah Vs. Govt. of Bangladesh & Ors 13 BLT (HCD)-328

Article -102

An Alternative remedy

Maintainability -Petitioner was all along on bail and attended the Court till 31.5.1998. He was found absent on the following day i.e. 21.6.98 so his lawyer filed an application for time and on the next day i.e. 8.7.1998 due to his absence his bail was cancelled and the Tribunal proceeded under Section 339 B of the Code of Criminal Procedure without any further steps to secure his attendance nor his sureties were asked to produce him. The Tribunal was, of course, required to follow section 27(6A) of the Special Power Act in such case. He was subsequently convicted on 20.7.1998 by e impugned judgment -Held; In consideration of the facts and circumstances of the case and following e principle of law we are of the opinion at, the petition could be maintained in is case also as the petitioner could not avail the alternative remedy.

Md. Alam Hossain Vs. Govt of Bangladesh & Ors. 13 BLT (HCD)-465

Constitution of Bangladesh, 1972

 

 

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

Constitution of Bangladesh, 1972


Constitution
of Bangladesh, 1972

 

Article 33(1)—Any person accused of an offence before a Criminal Court, or
against whom proceedings are instituted under this Code in any such Court, may
of right be defended by a pleader.

The law has not given any authority to the learned Sessions Judge
to limit the appointment of lawyer by each accused. The order limiting

the appointment of lawyer by each accused is absolutely without
jurisdiction. Section 352 of the Code of Criminal Procedure provides that the
learned Judge of the court will consider the accommodation of the general
public in the Court room. If one accused engages for himself one hundred
lawyers, the lawyers are entitled to defend the accused and as regards sitting
arrangement the Judge will control, but he cannot pass any order limiting the
appointment of lawyer. Hossain Mohammad
Ershad [former President Lieutenant General (Rtd)] vs State 48 DLR 95.

 

Article 35(4)—In the enquiry the petitioners can very well controvert the
allegations against them. It cannot be suggested that by mere issuance of
notices the petitioners are compelled to give evidence against them. Article
35(4) therefore is of no avail to the petitioners. Abdul Hafiz (Md) and others vs Director General, Bureau of
Anti-Corruption, Government of Bangladesh 51 DLR 72.

 

Article 58(2) (now repealed)—The nature of the document of
which the petitioner pleads protection and the related matters being in the
facts of the case a mixed question of fact and law, it is not yet time to
consider this constitutional question while the document is still not ready for
observation with all its factual clothings.

The Indian
cases relied upon by the petitioner are constitutional cases in which Article
74(1) of the Indian Constitution came up for repeated interpretation. Any
interpretation of Article 58 (now repealed) of the Constitution by us while
disposing of an application of this nature will not be on a par with the Indian
decisions on the subject because our decision too will be tentative in nature
and will not be binding on the trial Court. We therefore see no reason to grant
leave to consider a question of constitutional importance when the occasion for
such consideration has not arisen. Moudud
Ahmed vs State 48 DLR (AD) 42.

 

Article 58(2)—Criminal trial— Constitutional protection—where the State does not
take shelter of article 58(2) rather it produces through its machinery for
procuring the documents by submitting the charge sheet, statement under section
161 CrPC and the police record, the protection of Article 58(2) is of no avail
to the petitioner. Moudud Ahmed vs State
48 DLR 108.

 

Article 58(2)—Unless it can be shown by a party that his claims of protection
under Article 58(2) is on the basis of “Public interest” Article
58(2) hardly has any role to play. Moudud
Ahmed vs State 48 DLR 108.

 

Article 58(2)—The order made by the petitioner as a Minister being something
more than his advice to the President, the Court’s jurisdiction is not ousted
from enquiry into the same by reason of Article 58(2).

On the first
contention of constitutional embargo upon the Court to enquire into any advice
given by the Ministers as contended under Article 58(2) to the President is
concerned I am of the opinion that which constitute the advice can not be
inquired into by any Court but the materials upon which that advice is given
does not disentitle a court from examining the same.  Moudud Ahmed vs State 48 DLR
108.

 

Article 78(3)—No member of the Legislature should be questioned or penalised by
any Court for anything said within its four walls. Cyril Sikdar vs Nazmul Huda 46 DLR 555.

 

Article 102—Inordinate delay renders Writ Petition liable to be rejected in
that the remedy through such petition is to be sought without inordinate delay.
Mizan Howlader vs Bangladesh 48 DLR 91.

 

Article 102—The authority can never justify an order of preventive detention
by merely saying that the action was taken in the interest of public safety and
public order. It has to satisfy the High Court Division which is an obligation
cast upon the Court by the Constitution, that there were materials on record as
would satisfy a reasonable person to justify the order of detention.

It must be
made clear that the law which we have declared has never granted absolute power
either to the Government or to the President to make an order of detention even
in the circumstances mentioned in the judgment nor it is the law that the
satisfaction upon which an order of detention is made is immune from challenge.
The power of the Supreme Court in making scrutiny of executive acts never
recedes to the background, as observed by the learned Judge, so long as the
Constitution remains operative. The maintenance of law and order, public peace,
public safety and security are undisputedly concerns of the State and the
Government knows best how to preserve them, but the Court’s concern in a case
of preventive detention is to see whether the person is being detained without
lawful authority or in an unlawful manner. Mostafizur Rahman vs Bangladesh,
represented by the Secretary Ministry of Home Affairs and another 51 DLR 1

Article
103—To suggest that a leave petition may be filed under Article 103 challenging
the Sessions Judge’s decision is itself tantamount to legislation against which
the learned Judges have patronisingly cautioned. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67.

 

CONSTITUTION OF BANGLADESH, 1972


CONSTITUTION
OF BANGLADESH, 1972

 

Article—32

“Save in
accordance with law” as mentioned in Article 32 not only refer to criminal law
but also civil law which provides for arrest and detention namely, for recovery
of decretal dues and public dues.

The State Vs Faisal Alam
Ansari, 20 BLD(AD)289

 

Articles—102 (i) and 148

The Court
has the constitutional responsibility to ensure that the fundamental rights of
a citizen are protected whether he is within or outside the jail. In the
instant case the Court gave necessary directions to the relevant authorities
for taking appropriate steps against those who are responsible for colossal negligence
of duty leading to immense sufferings to innocent citizens.

The State Vs. Deputy
Commissioner, Satkhira, and others, 14BLD(HCD)266


Article—102

The presence
of an alternative remedy does not debar the exercise of jurisdiction by the
High Court Division under Article 102 of the Constitution when the facts and
circumstances of a particular case are such that the accused person had no
reasonable opportunity LU avail the remedy under section 30 of the Special
Powers Act. Whether or not the accused person had such a reasonable opportunity
is a question of fact to be decided in each case upon case records and no hard
and fact formula can be laid down to settle the criteria in advance.


Article—104

The
Appellate Division’s inherent power under Article 104 of the Constitution to do
complete justice is exercised on an appeal from a decision of the High Court
Division only. To suggest that a Leave Petition may be filed under Article 103
challenging the Sessions Judge’s decision itself tantamounts to legislation
which is not contemplated by law and this arises out of utter misconception of
the provisions of sections 439, 439A and 561A of the Code of Criminal
Procedure.

Md. Sher Ali and others
Vs The State and another, 14BLD(AD)84

 

Article—104

Article 104
of the Constitution gives inherent power to make any order for doing complete
justice only to the Appellate Division and not to the High Court Division of
the Supreme Court.

Mafizuddin and others Vs.
Alauddin and another, 14BLD(HCD)45

 

Constitution of Bangladesh, 1972


Constitution of Bangladesh, 1972


Article 39-

It
appears that the detenu is the Convener of Narayanganj City BNP and he is a
public figure and a member of the Supreme Court Bar Association and is
associated with some educational and social institutions and is a candidate for
election to the post of Chairman, Narayanganj Pourashava. Right to freedom of
speech as enshrined by Article 39 of the Constitution is subject to reasonable
restrictions imposed by law in the interest of the security of the State,
public order, incitement to offence, etc. A democracy cannot thrive if the law
of preventive detention is allowed to be used as the Damocles’ sword to stifle
the voice of people working in the public field. The best course for
administration is to set the appropriate law in motion in case of violation of
any law. Hence, the alleged activities of the detenu as narrated in the grounds
of detention do not constitute “prejudicial act” within the meaning of section
2(f) of the Act and as such the detention order is illegal and cannot be
sustained.

Halima
Farzana vs Government of the People’s Republic of Bangladesh and others 4 BLC
189


Article 49—

As
there is no scope for altering the conviction from one under clause 1(b) to
clause 1(a) of the table of section 19 of the Act reducing the sentence on
compassionate ground considering the age of the respondent who may approach the
Government or the President, if so advised, for any relief that she may choose
to pray.

State
vs Miss Eliadah McCord 2 BLC (AD) 1


Article 53—

In
view of the provisions of section 403(1) CrPC and Article 35 of the
Constitution the rifle as recovered from the accused persons during
investigation of the earlier dacoity case, ended in conviction, there cannot be
any separate proceeding and the prosecution against the accused persons in the
present case is incompetent which is liable to be quashed.

Abdur
Rashid and others vs State 1 BLC 180.


Article 102—

The
respondent No.1 did not have any authority to lease out the disputed land in
favour of the petitioner relying on such wrong record and false report for
which the submission that the petitioner acquired indefeasible title in the
land in question by virtue of the lease deed and that the impugned Telex
Message is without lawful authority
cannot be accepted as the respondent No. 1 had no control and management of the
land in question and as such the alleged delivery of possession of the land to
the petitioner by Tahsilder is a mere paper transaction.

Ansar
Ali son of late Nawsher Ali vs State 3 BLC 68.


Article 105—

A
review of a judgment is a serious step and reluctant resort to it is proper
only where a glaring omission or patent mistake or like grave error has crept
in earlier by judicial fallibility.

Munir
Hossain vs State 1 BLC (AD) 82.

 

Constitution of Bangladesh, 1972

 

Constitution of Bangladesh, 1972


Article-7

The preamble of our
Constitution undertakes to secure to every citizen justice. The preamble along
with other articles and provision of the Constitution have given justice an
ampler dimension to provide justice to every citizen of the country. Above all
the Constitution! reposes all the power to the people. Article 7 makes it clear
that all legislative, judicial and executive powers are conferred on the people
through the Constitution.

ETV Ltd. & Anr. Vs.
Govt of Bangladesh & Ors 10 BLT (AD)-108

 

Article-10, 28 (2), 29 (2), 27, 31 and 40 read with

The Muslim Marriages and Divorces (Registration) Rules, 1975

Held, But the existing
Rules, in view of our above discussion, are inept, in-cohesive, inadequate-ate,
ambiguous and ineffective having tendency to pick and choose policy,
arbitrariness, absurdities and require to be remodeled and redrafted in the
given situation and demand of time with sound thought and modern look with
special reference to Article 10. 28(2), 29(2), 27, 31 and 40 and the Warrant of
Precedence and the Muslim Marriages and Divorces (Registration) Rules, 1975
(Annexure-E to the Writ Petition) is therefore, struck down being
unconstitutional.

Moulana Ruhul Mannan Helali
Vs. Government of Bangladesh Ors. 11 BLT
(HCD)-336

 

Articles-27 & 29 read with

Bangladesh Power Development Board (Employees) Service
Rules, 1982, Rule-14

Class-III employees of
PDB— An employee cannot raise the plea
of violation of fundamental right in case of transfer.

Md. Jihad Ahmed &
Ors. Vs. Bangladesh Power Development Board & Ors 8 BLT(AD)-164

 

Artiele-27 & 31

Writ of mandamus—public
interest litigation — the foot paths and the pavements are public properties
and nobody can encroach upon the same creating obstructions against free use by
the public as contended by the petitioner himself— Held : The foot-paths, the
pavements and the streets are public property and not intended for encroachment
by the private persons — the respondents shall and must keep the foot-paths,
pavements of the roads and streets including narrow streets of the Dhaka City
clean and clear for passage and use of the public and passersby and the
respondents shall make a concerted moves to remove unauthorized constructions
and stop dumping of all sorts of constructions materials form the foot paths
and pavements of the roads and streets.

Omar Sasat Vs.
Bangladesh & Ors. 9BLT (HCD)-24

 

Article-31

The RAJUK is a statutory
public authority within the meaning of the constitution. It is entrusted with
enormous powers to regulate’ construction of buildings in the Metropolitan
City. On the other hand, the people are guaranteed with “the protection of
law, and to be treated in accordance with law, and only in accordance with law
under article 31 of the Constitution. To carry out its public duties, the RAJUK
is therefore, expected to act fairly and justly. It cannot act arbitrarily.
They are expected to be more circumspect in exercising their statutory powers
in dealing with the properties of the citizen. Moreover, it should also be
remembered, the exercise of powers of canceling a sanction is akin to and
partakes of a quasi-judicial complexion
and that in exercising the power
to cancel-sanction the authority must bring to bear an unbiased mind, consider
impartially the objections raised by the aggrieved party and decide the matter
consistent with the principles of natural justice.

A Rouf Chowdhury & Anr.
Vs. Bangladesh & Ors. 8BLT(HCD)-277

 

Article-32

In the instant case the
primary allegations against the accused is that he had committed an offence of
murder for which charge sheet has been submitted under section 302/34 of the
Penal Code. Section 497 of the Code of Criminal Procedure speaks that when
there is a reasonable ground for believing that a person is guilty of offence
punishable with death or imprisonment for life, he should not be granted bail.
Section 497 of the Code of Criminal Procedure is a procedural law and the
accused having alleged to have committed a substantive offence of murder his
liberty is curtailed.

The State vs. Faisal Alam
Ansari 9BLT(AD)-189

 

Article-35(4) read with

Code of Criminal Procedure, 1898 [V of 1898] Section-94 and
160

Held : In the instant
cases the respondents have been asked to produce certain documents that being
no mention under what authority or power the notice has been issued. The
petitioners who have received the notices have a right to be satisfied that the
impugned notices have been issued under due process of law and unless the
source of power and Authority is mentioned the petitioners has no means of
knowing that the notices are authorized by law. The notices suffer from
inadequacy making them no notice under law. Therefore find that the notices in
these Writ Petitioners to be not being in accordance with law. The petitioners
are not under obligation to comply with the direction given by the impugned
notices.

Giasuddin Al-Mamun &
Ors. Vs. Bangladesh & Ors. (HCD)-47

 

Article-35 (4)

Held : Although notice
has been served under Section 160 Cr.P.C. asking the petitioner to appear
before the relevant authority for making statement and examination of documents
the notice does not disclose what documents are to be produced. The words
” mswk­ó KvMRc‡Îi weeiYÓ has been penned through. The notice therefore
suffers from serious defect which cannot be complied with by the petitioner in
its present form. The notices are also vague and indefinite. We therefore hold
the impugned notice Annexure-A is illegal and without lawful authority.

Giasuddin Al- Mamun
& Ors. Vs. Bangladesh & Ors. (HCD)-47

 

ArticIe-35(4)

Held : However we
observe that the notice has not only asked for documents and things but has
also asked for statement of moveable and immovable properties in the name of
the petitioner and his demanders. This statement obviously can be only asked
under Section 4( I) of the Anti Corruption Act which requires the satisfaction
of the Government. In the instant case the Annexure-A does not say that the
Government or the Anti-Corruption is satisfied that the petitioner has property
disproportionated to the known source of income. Therefore the impugned notice
Annexure-A is illegal and without lawful authority.

Giasuddin Al- Mamun
& Ors. Vs. Bangladesh & Ors. (HCD)-47

 

Article-38

Whether section 25(3) of
the Financial Institution Act. 1993 is ultra vires Article 38 of the Constitution.

The fallacy of the
submission is that the petitioner company was formed in 1995 under the said Act
with all the restriction contained therein. It was also not formed with
petitioner Nos. 2-5 as nominee directors. The petitioner company was still
seeking the permission of Bangladesh Bank to include them in its Board of
Directors. When the petitioner company was not formed at all with petitioner
Nos. 2-5 as its directors, there is no question of acquiring any fundamental
right to continue with petitioner Nos. 2-5 as its directors. Besides the
petitioner company was formed in 1995 after the
Avw_©K cÖwZôvb AvBb, 1993 was enacted on
30.09.1993. It was already governed by the restrictions imposed by section
25(3) of the said Act. The petitioner company was formed knowingly and
voluntarily under the restrictive provisions of the said Act. It cannot now
complain that its freedom of association has been restricted by section 25(3).

Phoenix Leasing Ltd.
& Vs. Bangladesh Bank & Ors. 8BLT(AD)-117

 

Article-41

Right to propagate any
religion—it is admitted that the petitioner and his devotees used to perform
religious functions at the Darbar Sharif before the occurrence of 03.12.1999.
As the petitioner was admittedly in possession of the Darbar Sharif and
devotees used the mosque within the campus for saying prayers, the respondents
cannot prohibit them from entering into the mosque and the Darbar Sharif into
the mosque and the Darbar Sharif to perform their day to day religious
function.

Dewanbagh Darbar Sharif
& Anr. Vs. Govt. of Bangladesh & Ors. 10BLT (HCD)-412

 

Article-41

“We recommend that
a Unified Marriage and Divorce Act for all the citizens should be enacted by
the Parliament keeping in pace with the modern time” that the Said
recommendation has violated fundamental right of the community as contended by
the leave petitioner.

Held: In the background
of the provision of Article 41 of the Constitution we are of the view that the
said recommendation of the High Court Division taking exception to and against
which the leave petition has been filed need be expunged and that can be very
well done without affecting the decree as passed in Divorce Suit No. 1 of 1998.
Accordingly the controversial part of the judgment of the HighCourt Division
which runs as, “we recommend that a Unified Marriage and Divorce Act for
all the citizens should be enacted by the Parliament keeping in pace with the
modern time” is hereby expunged.

Legal Aid Bangladesh. Vs.
Eva Chowdhury & Ors 11 BLT(AD)-180

 

Article-42

Whether the amendment by
way of inserting proviso to section 31 and 34 of the Acquisition and Requisition
of Immovable Property Ordinance, 1982 being ultra-vires of the constitution and
violative of the principles of natural justice.

Held : We are of the
view that amendment that has been made in section 31 and 34 of the Ordinance
cannot be said violated the right of the petitioners to have protection law and
that in having adequate compensation in respect of the land acquired under the
Ordinance or that of the provision of Article 116A of the Constitution.

Md. Shahjahan Ali Khan
& Ors. Vs. Govt. of Bangladesh & Ors 8BLT(HCD)-l

 

Article-42

The constructions so far
made at a cost of crores up to 14 floors with a foundation of a 22 storied
building known as ‘Rangs Bhaban’ as per plan duly approved by RAJUK and
following the terms and conditions thereof must be held to be a property
lawfully vested in the petitioners as valid acquisition under Article 42 of the
Constitution and under the Constitution the rights of petitioners to hold and
enjoy such property are guaranteed.

A Rouf Chowdhury &
Anr. Vs. Bangladesh & Ors 8BLT(HCD)-277

 

Article-65(1)

Lawmaking Power of the Parliament is a limited
one because where the Constitution as ours is supreme and the legislature is a
creature of the Constitution with limitations on its competence, its laws being
liable to be struck down as ultra vires if they breach the constitutional
controls, it is called a “controlled Constitution”. In such a
Constitution the legislature’s power to alter the Constitution is nonexistent—The
Parliament as a creature of the Constitution. As such if the Proceedings of the
Parliament are outside the purview or are contrary to any provision of the
Constitution, it would not qualify as a Proceeding in Parliament and the Courts
jurisdiction is not ousted.

Afzalul Abedin &
Ors. Vs. Govt. of Bangladesh & Ors. 10 BLT (HCD)-490

 

Article-66(2)(d) read with Rules of

Procedure of Parliament Rules-178(3)

The learned Counsel
appearing for the petitioner contends that the alleged disqualification was
never made applicable to the petitioner in 1993 when he was convicted and
sentence for 7 years in Janata Tower case. The petitioner was also not debarred
from participating in the Parliament election held in June, 1996. But it was
only made applicable to him after long 8 years from the date of conviction and
sentence while he v\as continuing as a Member of Parliament. Hence, the
authorities concerned must now be estopped from declaring his seat vacant on
the ground of disqualification for his conviction in Janata Tower case—Held :
In the instant case, the Speaker did not inform the House that the petitioner
ceased to be a Member on account of disqualification for being convicted in the
Janata Tower Case for a period exceeding 2 (two) years. The petitioner was,
therefore, not informed about his seat being vacant due to disqualification. As
a result he had no opportunity in the present case to raise any dispute. The
impugned notification was not issued after due compliance with the aforesaid
rule of the procedure. Hence the same is struck down as not being done in
accordance with law.

Hussain  Muhammad Ershad  Vs. Abdul Muqtar Chowdhury & Ors. 10BLT(HCD)-148

 

Article-66(2)

There is no room for
doubt in the said provision that on conviction and sentenced for a period of
not less than two years for an offence involving moral turpitude, a member
shall be disqualified at once. Of Course, if they are acquitted in appeal, it
will be effective retrospectively and the disqualification, if any, would at
once cease to exist —the onus and the whole procedure leading to an order of
conviction of a person is based on criminal jurisprudence, while the question
of disqualification of a sitting Member of Parliament, to remain as such member
or not. is base on a different jurisprudential plane or basis. Naturally, the
approach to these two kinds of rights, such as the right of such as, the right
of a convict and the right to remain as a sitting member of Parliament, shall
be, of necessity, different from the other. A convict has a right of appeal and
also be granted bail in an appropriate case but a sitting Member of Parliament loses
his qualification at once because his such qualification under clause (1) of
Article 66 of subject to clause (2) and not independent of it.

Hussain Muhammad Ershad
Vs. Abdul Muqtar Chowdhury & Anr. 10BLT (HCD)-148

 

Article-66(2)(d)

Whether we read the
words ‘on conviction’ as ‘ on final conviction’

A court of law has got
no power to add or omit anything to what is provided in the law itself. The
Constitution of the Republic being the Supreme Law of the Country, this Court
would never embark on such a venture. Rather the learned Judges of the Supreme
Court are oath bound to preserve, protect and defend the Constitution and the
laws of Bangladesh. This Court can always explain and expound the
constitutional provisions and other laws of the country but in doing so
certainly would never make detour from such laws or even from the spirit of
such laws.

Hussain Muhammad Ershad
Vs. Abdul Muqtar Chowdhury & Anr. 10BLT (HCD)-148

 

ArticIe-70

Political Party
—Constitutional entity

The object
of Article-70 of the Constitution is
to ensure stability and continuity of Government and
also to ensure discipline among the members of the political parties so that
corruption and instability can be removed from national politics. The spirit
was that members elected to the Parliament should continue to maintain their
allegiance to the party by which they have been nominated and to uphold the
manifesto and programme of that party in national politics. It was forms the
Government can continue to govern the country ad not be destabilized and
dethroned by floor crossing and horse-trading being allured by the other side
and vice versa.

Secretary Parliament
Secretarial Vs. Khondaker Delwar Hossain & Ors. 8BLT (AD)-215

 

Article-70

As the Constitution is
very emphatic that any dispute as to whether a member of Parliament should
vacate his seat pursuant to Article-70 shall be decided by the Election
Commission it was neither appropriate for the Speaker to preempt the decision
by putting his own interpretation on the word “resignation” nor will
it be appropriate for us to give our mind away as to what we think about the
language of Article-70.

Secretary Parliament
Secretarial Vs. Khondaker Delwar Hossain & Ors. 8BLT (AD)-215

 

Article-78(1)

The Parliament cannot
claim any immunity if it transgress or oversteps is limits under the
Constitution which it did in passing a non-money Bill as a Money Bill and hence
Article 78(1) cannot preclude or debar the courts from exercising their power
of judicial review of the unconstitutional acts.

Afzalul Abedin &
Ors. Vs Govt. of Bangladesh & Ors. 10 BLT (HCD)-490

 

Article-81(1)

Certificate— A Money
Bill is not immune from challenge if it renders itself unconstitutional either
by violating fundamental rights or by transgressing any provision of the
Constitution or by being absurd. And therefore, the certificate of the speaker
will not be conclusive for all purposes.

Afzalul Abedin &
Ors. Vs Govt. of Bangladesh & Ors. 10 BLT (HCD)-490

 

Articie-81(1) read with 80(3)

Per Mr.
Justice M.A. Aziz: P.S.A —Money Bill—the
President did never recommend
the Bill as a Money Bill as it was not sent for his recommendation as a Money
Bill and the endorsement of the Speaker of the Bill as a Money Bill under Article
81(3) being without authority and power is a nullity and the certificate not
being a magic wand has no mesmerism to transform a non money Bill into a Money
Bill in derogation of Article 81(1) of the constitution. The speaker derives
his power of certification under Article 81(3) which is hedged with a condition
that “Every Money is presented to the President for his assent, shall bear
a certificate under his band “that” (the underlining is mine) it is a
Money Bill” and such certificate shall a be conclusive for all purposes
and shall not be questioned in any court. The expression “that” it is
a Money Bill is not an “idle expression or mere formality” It means
that the speaker must satisfy himself that what he is presenting for the assent
of the President is in fact a Money Bill. And this satisfaction must
be derived from the enumeration given under Article
81(l)(a) to (f) read  with Article 
81(2)  and 88  of
the Constitution. Furthermore, Article 7(1) which is the “touch
stone” of the constitution ordains in no uncertain term that “All
Powers in the Republic belong to the people and their exercise on behalf of the
People shall be effected only under, and by authority of this Constitution
while under Article 7(2) it is sanctified to be the “Solemn
expression” of the will of the People and the “Supreme law of the
Republic”. Now the question is, have the people invested the speaker with
the power or in other words is the speaker empowered to certify a Bill as a
Money Bill which in fact is not a Money Bill? The answer must be “no”
The Power conferred upon the Speaker under Article 81(3) must be exercised on
behalf of the people and must be effected only under, and by authority, of the
Constitution. This sacred document (the Constitution) has not authorized or
invested any one specially the constitutional functionaries of the state who
are under oath to preserve, protect and defend the Constitution to issue a
false certificate transgressing the presidential Prerogative under Article
80(3) of the Constitution. This constitutional Power cannot be negated and
denied by any one at his sweet will or whim. There must be a clear and
unambiguous conferment of such power by the Constitution itself. In the facts
and circumstances of this case Particularly the way the extract Bill was sent
to the President for his recommendation to be introduced in the House, the way
the Home Minister deliberately misled the House saying that the President
recommended the Bill as a Money Bill (Which it was not) and the way the Speaker
sent the Bill for the assent of the President after it was passed by the
Parliament as a Money Bill certifying that the Bill (P.S.A.) was a Money Bill
knowing fully well that it was not so under Article 81(1) of the Constitution,
I am left with but only one conclusion that it was a ploy to preempt the
prerogative of the President (under Article 80(3) to prevent him from refusing
or withholding his assent to the Bill and returning it back to the Parliament
because it did not answer the description (a) to (f) of Sub-Article (1) of
Article 81 of the Constitution. It was clearly an act of fraud by the Speaker
committed upon the president, upon the Constitution and above all upon the
people.

Per Mr. Justice Shamsul
Huda : In no way any fraud has been committed either on the President or on the
Constitution in relation to a money bill while presenting it to the President
for latter’s assent, the propriety of legality or any other matters relating to
such certification cannot be called in question in any court. And the court
cannot go behind the certificate even if the court finds error of law in
certifying.

Afzalul Abedin &
Ors. Vs. Ciovl. of Bangladeshi Ors.10BLT (HCD)-490

 

Article-83 read with Finance Act, 1997

Section-7

Section-7 of the Finance
Act, 1997, by which surcharge have been imposed is an Act of the Parliament and
it has been determined therein as to when, how and what amount of surcharge
will be realized from the goods imported in Bangladesh. There is no doubt that
the Finance Act. 1997 is an Act of the Parliament and the same has the full
force of law in levying or collecting taxes or other charges/duties as
contemplated in Article 83 of the constitution.

M/S F. Rahman Oil Mills
Ltd. & Ors Vs. Com. Customs & Ors. 9BLT(HCD)-435

 

Article-96

Accountability—the
conscience of a Judge becomes conditioned by the oath he takes to defend the
Constitution. We are no doubt holding a public office on oath under the
Constitution. A great trust and confidence of the people are reposed in such
office. Every day, we are discharging our constitutional duties within the
public gaze. Our judgments are the acid test of our accountability. Further, if
there is any lapse or failing in the capacity or conduct of a judge. Article 96
of the Constitution has ordained the President of the Republic to act and
direct the Supreme Judicial Council to inquire into the matter and report its
finding to him. Thereupon, the President is empowered to take action under the
Constitution. Originally in our Constitution, this power was given to the House
of Nations like the parliament in India. So, it is not correct for anybody to
think that the Judges are above law or. there is no accountability of the
Judges under the constitution. The sooner it is understood by all and sundry is
better for the whole nation.

Mainul Hosein & Ors.
Vs. Sheikh Hasina Wazed 8BLT (HCD)-410

 

Article-102 read with

Bank Companies Act, 1991 [As amended] Section-17

The High Court Division
simply does not have the jurisdiction to decide the validity of notice under
section 17 of the said act upon adjudication of documents of both sides. The
offending director may have a very good case to show that he has no personal
liability to the lender Bank at all. But it is not for the High Court Division
to determine or even hint at the offending director’s personal liability or
otherwise, except on admission, when the only list before it is whether the
notice under section 17 if legal or not. All other matters will go to the
Bangladesh Bank for determination.

Masudul Alam Chowdhury
Vs. Bangladesh Bank & Ors. 8BLT(AD)-13

 

Article-102

Forum for a redress of
the adverse remarks.

The petitioner seems to
have a genuine grievance because of the adverse remarks made against him, which
is likely to affect him prejudicially. He appeared as a witness for a party and
his evidence can be legitimately made a subject of comment by the authority
hearing the matter but to say further that he was an undesirable person for the
purpose or management of the estate/ mosque (which is found to have been established
by his grandfather) was perhaps going too far. He was not told beforehand that
he was a bad person and so cannot be included in the managing Committee. At the
same time, we have no manner of doubt that the writ jurisdiction was not the
appropriate forum for a redress of his grievance. He should have moved the
Administrator of Waqfs for expunging the uncharitable remarks made against him
instead of rushing in with a writ petition which was not well conceived. The
petitioner may still approach the Administrator of Waqfs if he so likes to
consider his case for expunging the remarks which are claimed to be adverse and
not necessary for the purpose of disposal of the proceeding in question.

Md. Ali Akbar Vs. The Administrator
of Waqfs & Ors 8BLT(AD)-31

 

Article-102

Item No. 72.04 of
Section XV of the First Schedule to the Customs Act. 1969 —As is clear from the
facts of this case the order of adjudication contains not only an
interpretation of technical words used in the Customs Act but also a technical
appreciation of the nature imported goods. On such matters the High Court
Division is not the proper forum for a filial adjudication at the first
instance. The National Board of Revenue having both the technical competence
and technical assistance available on hand was in a better position to
adjudicate upon the Adjudication Order and the subsequent order. If thereafter
any point of law was left to be decided further either side could have then
invoked the writ jurisdiction.

Govt. of Bangladesh Vs.
Section Steel Industries Ltd. 8BLT(AD)-34

 

Article-102

In the instant case, the
writ petitioner is a Government servant. He has not challenged the vires of any
law. His grievance relates to the terms and conditions of his service. The High
Court Division is therefore correct in its view that the writ petitions are no
maintainable under Article 102 of the Constitution.

Md. Shamsul Islam Khan
Vs. Ministry of Communications & Ors 8 BLT (AD)-64.

Article-102

Locus standi—being added
as a party in the writ petition.

Even when a political
party which obtained a protected symbol before the general election held on the
12th June, 1996 decides not to take part in a by election, the Returning
Officer is still under a cautionary direction of the Election Commission to scrutinize
the written documents of a candidate if he presents himself as a nominated
candidate of a political party which took part in the general election held on
the 12th June, 1996, It is the case of the appellant that it did not nominate
the writ petitioner as its candidate for the by election in question and
therefore it has a sustained interest in its protected symbol ‘Langal”. If
the decision of the High Court Division in the impugned judgment is to the
effect that the symbol ‘Langal’ will be allotted to a person who has not been
nominated by the appellant as its candidate in the by-election in question,
than that political party, namely, the appellant, has every locus standi to
prefer this appeal and prosecute the same in order to safeguarded and protect
its claimed protected symbol.

Jativa Parlv Vs.
Motassim Billah & Ors 8BLT (AD)-100

 

Article-102

Interference at an
intermediate stage in the election process.

We have gone through the
writ petition. We do not find that there is any allegation as to coram non-judice
or absence of jurisdiction or malice in law in the writ petition. The grounds
taken are that the order of rejection of the Returning Officer dated 19.04.1999
is arbitrary, mala fide, without lawful authority and for collateral purpose 1
here is absolutely no factual matrin justifying the allegation of mala fide and
there is no indication either as to for what collateral purpose the impugned
order was passed—writ petition is not maintainable.

Jatiya Party Vs.
Motassim Billah & Ors 8BLT (AD)-100

 

Article-102

Interpretation of
direction of the Election Commission.

Allocating a protected
symbol —The High Court Division has observed that it was not the question
before the Returning Officer as to which of the two factions is entitled to the
symbol ‘Langal” In its opinion the question before the Returning Officer
was whether after withdrawal of candidature by Mr. Abdul Hamid respondent No.
1. whatever faction of Jatiya Party he belonged to was entitled to the symbol
of ‘Langal’ This is again a misdirected opinion of the High Court Division.
Both Mr. Abdul Hamid if he was in the race and respondent No. 1 were required
to produce their respective written documents before the Returning Officer if
both of them claimed the protected symbol ‘Langal’ If only one of them remains
in the race he too has the obligation to produce written
document before the Returning
Officer to show that he is nominated by that political party which obtained the
protected symbol ‘Langal in the ‘General Election held on the 12th June. 1996.
That is the burden of proof of any candidate does not produce written documents
to the Retiming Officer to satisfy him on this point then the Returning Officer
imperfectly entitled to refuse him to allocate the protected symbol on the
ground that the failed to produce his papers. It is a contested mater before
him. he will evaluate both sides written documents and come to a decision
according to his best judgment.

Jatiya Partv Vs.
Motassim Billah & Ors 8BLT (AD)-100

 

Article-102 and

Bangladesh Tariff Commission Act, 1992 [Act No XLII1 of 1992]
and

The Evidence Act, 1872 Section-114(c)

We are of the view that
when a writ petition is filed on a bald assertion that the high powered
committee arbitrarily and fictitiously raised tariff value without any
objective material before it. the High Court Division ought not to rush into
issuing a Rule Nisi and stay payment of duties and taxes. It should take notice
under section 114(c) of the Evidence Act, 1872 and should start with the
presumption of regularity in official business. Initially, in the writ petition
itself, the writ petitioner must include some reliable and relevant materials
to show that between the last date of fixation of tariff value and the impugned
date of fixation of tariff value the international market prove of a particular
imported item has either gone down or has gone up to an extent which is
significantly higher or lower than the impugned fixation of tariff value,
according as the writ petitioner’s case is. If there are no such materials in
the writ petition itself the High Court Division should not entertain the
petitioner and dismiss it in limine.

M/S Kamal Trading Vs.
Commissioner of Customs & Ors 8BLT (AD)-108 .

Article-102

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 becomes
meaningless.

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

 

Article-102 read with

The trade Organization Ordinance, 1961

Section-9

It is on record that the
duration of the present Executive Committee of the FBCCI is going to be expired
on 21st October. 2000. So an organization like FBCCI which concerns with
finance and other functions of national importance cannot be thrown into chaos
and confusion on the whim of a particular person, who is not yet a voter for
the organization’s election.

When a part of the
election has already been completed without any objection from any corner, we
find that the present petitioner has no legal right even according to the
memorandum of articles of association of FBCCI.

Md. Abul Khair Moreselin
Vs. Bangladesh &Ors. 9 BLT (HCD)-8.

 

Article-102

Writ of certiorari—not
maintainable —on the basis of F.I.R. dated 02.10.1996 Sessions Case No. 319 of
1997 was initiated and the same was disposed of by the judgment and order dated
08.1 1.1998 by the learned Sessions judge, Dhaka, and the beneficiary of the
writ application Lieutenant Colonel Mohiuddin Ahmed has been found to be guilty
of the offences charged for and was convicted and sentenced to capital
punishment and being aggrieved by the said judgment and order said lieutenant
Colonel Mohiuddin Ahmed preferred Criminal Appeal No. 2617 of 1998 in the high
Court Division of the Supreme Court of Bangladesh, which was heard along with
other appeals and Death Reference Case no 30 of 1998 by a Division Bench, which
delivered a split judgment on 14.12.2000. In the aforesaid split decision Lieutenant
Colonel Mohiuddin Ahmed was found to be not guilty by one of their Lordships
and accordingly his case has been referred to Third Judge of the High Court
Division for decision in accordance with the provisions of the Criminal
Procedure Code and same is now pending. Held: We are of the view that this
Bench at the present stage. When the sessions Case No. 3 19 of 1997 arising out
of FIR dated 02.10.1996 has merged in Criminal Appeal No 2617 of 1998 filed by
Lt. Col. Mohiuddin Ahmed, now pending for disposal in another Bench of the High
Court Division, cannot issue writ of certiorari as prayed for.

Mrs. Shahida Mohiuddin
Vs. Bangladesh & Ors. 9BLT(HCD)-116

 

Article-102

Writ of certiorari — it
is settled principle that the writ of certiorari is issued normally upon the
inferior court or any tribunal inferior to the High Court Division.

Mrs. Shahida Mohiuddin
Vs. Bangladesh & Ors. 9BLT(HCD)-116

 

Article-102

Aggrieved person—public
interest litigation — petitioner is a member of

the Supreme Court has Association,
alleged in the petition that by making unauthorise constructions and setting up
of illegal markets by the unauthorised users for their commercial purposes
there have been obstructions to the foot-paths and pavements goers and passerby
and thereby making the Dhaka City virtually unfit for habitation. By
unauthorized occupation of the foot-paths and pavements and streets etc.
obstructions are created in such a manner that the people cannot as through the
foot-paths, pavements and the streets practically. In comparison with the
population the foot-paths and the pavements in Dhaka city are small and
insufficient. According to petitioner the respondents are not taking any care,
rather they are sleeping and neglecting to protect the same and keeping free
for use by the day to day passersby. The Dhaka city was once a beautiful city
in the east. But now it has been turned into a gloomy and ghost city because of
blocking the foot-paths and pavements in the aforesaid unauthorized and illegal
manner. This is why the petitioner being aggrieved has made this application by
himself. The environment also has become very unhygienic and it is also adding
to the pollution of the air—Held : The government to protect the right of the
people to move freely through the roads, streets, foot paths and pavements of
the city of Dhaka and other cities in Bangladesh and in terms of the law should
be implemented to protect the right of the petitioner as well as of every
pedestrian and the city dwellers who should be allowed to enjoy their right as
given by law.

Omar Sadat Vs.
Bangladesh & Ors. 9BLT(HCD)-124

 

Article-102

Instant case, we see
that for the purpose of forming an opinion as to whether TTCL was engaged in
carrying out its banking business without required permission of Bangladesh the
enquiry was held by the competent person of Bangladesh Bank, with prior show
cause notices and after enquiry and before forming final opinion and before
making the impugned declaration a second notice vide Annexure-G was served upon
the ITCL informing it about the proposed action to be taken by the Bangladesh
Bank as such there is no lack or dearth of natural justice in this case.

Islamic Trade &
Commerce Ltd. Vs. Bangladesh Bank & Ors. 9BLT(HCD)-I83

 

Article-102

Public interest
litigation as in the instant case fate of many innocent students arc involved
as contended by the petitioners counsel.

In the instant case the
others are definite in number i.e. 49—Hence we are unable to accept the
submissions of the learned Advocate of the petitioner. However for securing,
ends of justice we direct the Board to allow the petitioner and those others
who have not yet filled up the Forms of HSC Examination to be held in 2001
since they have already changed their subjects as required by the National Curriculum
and issue necessary admit cards so that they can appear in the next HSC
Examination. 2001.

Md. Masum 
Babor Hiro Vs. Govt. of Bangladesh 9BLT(HCD)-228

 

Article-102

The petitioner being a
government servant and his transfer is one of the terms of his service he must
take shelter of law in Administrative Tribunal as the Tribunal can strike down
an order of violation of natural justice and for infringement of fundamental
rights. But for challenging vires of law one can seek remedy under Article 102
of the constitution.

Nur Mohammad Vs.
Ministry of Education & Ors. 9BLT(HCD)-244

 

Article-102

It appears that by the
impugned notification annexure-D the requiring body Rajuk published the
notification inviting application from the notification inviting application
from the decided to be acquired under L.A. Case No. 138/61-62, 91/57-58 and
26/59-60, for allotment of plot at Badda Rehabilitation Zone but there is no
material on record to show that petitioner’s land measuring 4 kathas in C. S.
Plot No. 1004 is within 721.76 acres of land decided to be acquired out of the
aforesaid three L.A. Case. On the other hand the Rajuk also has not submitted
any paper to show acquisition of the land and assessment of compensation if any
for the land in question-in view of the facts and circumstance stated in the
writ petition and papers annexed thereto we are of the opinion that the writ
petition was filed is incomplete in that it does not disclose material fact
that petitioner land was included in 721.76 acres of land decided to be
acquired and for non disclosure of complete maercial fact the writ petition is
not maintainable.

Most. Nurjahan Akhter
Vs. Bangladesh & Ors. 9BLT(HCD)-260

 

Article-102

Maintainability —the
case of the petitioners in brief is that in response to the public notice
published on behalf of the respondent No.1 the petitioners submitted tenders to
purchase the commercial premises at 25. Bangbandhu Avenue, Ramna, Dhaka, (the
case-property in short) with the requisite earnest money and although their
tender was highest still the respondents could not finalize the matter due to
litigations but even after conclusion of the litigations, the respondents did
neither complete the transaction or hand over the physical possession of the
case property in favour of the petitioners in spite of compliance of all the
terms by them. They made repeated prayers for completion of the transaction but
having failed in this respect—Held: It appears that the conduct of the
officials of the respondent No. 1. in canceling the tender, after dilly
dallying for long 6 (six) years, on a preposterous reason for which they
themselves are to be blamed, is most unfair, as such the petitioners have got
the constitutional right to maintain this petition to challenge such an
unreasonable and arbitrary order of the Government.

Md. Nazrul Islam Ors.
Vs. Bangladesh & Ors. 9BLT(HCD)-311

 

Article-102

Slum dwellers should not
be treated, for any reason, as slaves or chattels, rather as equal human beings
and they have got a right to be treated fairly and with dignity.

Kalam and Ors. Vs.
Bangladesh & Ors. 9BLT(HCD)-323

 

Article-102

Maintainability—the
petitioner is admittedly a responsive bidder so far the technical bid is
concerned and as per terms and conditions of the tender document price bid of
those bidder who have been found to be responsive in the technical bid shall be
opened that obviously amounts to an agreement between the bidder and the
purchaser, breach of the said terms as a clear violation of the tender document
in other wards the contract inasmuch as terms and conditions of the tender
documents are binding upon both sides. Thus cause of action has already arisen
for taking legal action.

Sumikin Bussan Corp. Vs.
Chittangong Port Authority & Ors. 9BLT (HCD)-363

 

Article-102

Maintainability— the
petitioner is admittedly a responsive bidder so far the technical bid is
concerned and as per terms and conditions of the tender document price bid of
those bidders who have been found to be responsive in the technical bid shall
be opened that obviously amounts to an agreement between the bidder and the
purchaser, breach of the said terms as a clear violation of the tender document
in other wards the contract inasmuch as terms and conditions of the tender
document are binding upon both sides. Thus cause of action has already arisen
for taking legal action.

Dr. Md. Alamgir V. BUET
& Ors. 9BLT (HCD)-388

 

Article- 102(2)(a)(ii)

Second show cause notice
to an employee to be meaningful has to be accompanied by a copy of the inquiry
report. It is not an idle formality.

Abul Kashem Sikder Vs.
Govt. of Bangladesh & Ors. 9BLT (HCD)-180

 

Article-102(2)(a)(ii)

Whether a circular of
the Government conferred vested right on the petitioner not to be transferred
within 3 years preceding to the date of his retirement.

Held: A circular of the
Government, which has not force of law —relied on 45DLR (HCD)-39, 1981 BLD
(AD)-103

Nur Mohammad Vs.
Ministry of Education & Ors. 9 BLT(HCD)-290

 

Article-102

Writ of Mandamus—the
respondents took objection to the High Court Division’s direction, the
Ministry, to produce the relevant tile on the evaluation report and questioned
why the court should take on its shoulder the onus to find malafide. According
to them, burden should be on the shoulder of the petitioners, as they were the
ones who alleged malafide. The answer to this that, if the learned Judges of
the High Court Division thought it appropriate that an investigation should be
made in a writ petition, they were not barred from directing parties to lead
evidence. Such investigations only assist the court in the realisation of the
constitutional objectives. Such directions and orders passed by the court are
incidental or ancillary to it jurisdiction of enforcement of fundamental
rights. Power has been vested in the High Court Division to issue writ or order
to any party within its jurisdiction, under Article 102 of the Constitution.
But this power should be exercised cautiously and prudently.

ETV Ltd & Anr. Vs. Govt. of Bangladesh & Ors. 10 BLT
(AD)-108

 

Article-102

In the instant case the
High Court Division looked into the procedure adopted in giving license to ETV;
and on doing so it has exercised its jurisdiction under Article 102 which on
the facts of the case, in our view, is quite justifiable.

ETV Ltd &  Anr. Vs. Govt. of Bangladesh & Ors. 10
BLT (AD)-108

 

Article-102

Locus Standi—writ
petitioners are not directly affected—Held: It must be remembered here, that it
is not possible to lay down in clear and precise terms what is required to give
a petitioner locus standi when public injury or public wrong is involve Locus
standi is not a case of jurisdiction of the court, but a case of discretion of
the court, which discretion has to be exercised on consideration of facts and
law point involved in each case, as already pointed out in the case of Ka/i
Mukhlesur Rahman, As a matter of prudence and not a rule of law, the curt may
confine its exercise of discretion, taking into consideration the facts, the
nature of the public wrong or public injury, the extent, of its seriousness and
the relied claimed. Therefore, the concern shown by the bar, that giving locus
standi to the petitioner will open the floodgates, and the court will soon be
overburdened by cases, does not hold good. The discretion to open gates will
always be with the court, which discretion will only be exercised within the
bounds mentioned above.

ETV Ltd &  Anr. Vs. Govt. of Bangladesh & Ors. 10
BLT (AD)-108

 

Article-102

Waqf Administrator has
been passed complying the order the Stale Minister for Religious Affairs.

It appears that the
impugned order has been passed at the direction of the State Minister for
Religious Affairs and the Administrator of Waqf did not apply his mind,
independently in passing the order the impugned order have been passed without
lawful authority and of no legal effect.

Md. Naser Haider Shamsu Vs.
Government of Bangladesh & Ors. 10 BLT (HCD)-463.

 

Article-102 read with

Bangladesh Rin Salishi Ain 1989

Section-13

Impugned order was coram
non-judice having been passed by the Chairman of the Board alone without the
presence and participation of other members who also did not sign the impugned
order. As a result the impugned order was wholly without jurisdiction and hence
void. It is needless to mention here that Section 5 of the Limitation Act was
not applicable in the instant case. Moreover, the impugned order as we have
found is illegal and without jurisdiction. Therefore, the petitioner in our
opinion is not debarred from invoking writ jurisdiction of this Court under
Article 102 of the Constitution without availing of the alternative remedy by
way of appeal before the Revenue Authority.

Mohammad Selim Vs.
Assistant Commissioner & Ors. 10BLT (HCD)-29

 

Article-102

Maintainability—We are
of the view that in view of the allegation as reported in the newspaper, the
petitioner as an Advocate of this Court moved this Court and, as such, filing
of the writ petition by the learned Advocate cannot be considered as not
maintainable.

Mohammad Hosain Advocate
Vs. Quamrul Islam Siddique & Ors. 10 BLT(HCD)-191

 

Article-102(2)(a)(i) read with

Code of Criminal Procedure, 1898

Section-154, 156 and 157

Report published in a
newspaper

A direction can be given
to the Director General of Bureau of An it Corruption for taking steps for
holding investigation if it is found
that there is
an information of commission of
a cognizable offence, but no such direction can be given on the basis of a
report published in a newspaper containing allegation of commission of cognizable offence because the above
officer is not legally bound to hold investigation on the basis of such a
report. Under Article 102(2)(a)(i) of the Constitution, the high Court Division
may make an order directing a person performing any function in connection with
the affairs of the Republic to do that which he is required by law to do. We
have found that the Director General, Bureau of Anti-Corruption is not required
under any law to ask his officers to start investigation or to hold
investigation on the basis of any report published in a newspaper, because such
report is not an information within meaning of Sections-154, 156 and 157 of the
Code.

Mohammad Hosain Advocate
Vs. Quamrul Islam Siddique & Ors. 10 BLT(HCD)-191

 

Article-102(l)(2)(a)(i)(ii) read with

Trade Organisations Ordinance, 1994

Rule-3 Sub-Rule-8

There is violation of
Rule 3 Sub-rule 8 of Trade Organisations Ordinance, 1994, i.e. non disposal of
the writ petitioner’s application within time and not giving an opportunity of
hearing to the petitioner and therefore there is violation of the principle of
natural justice and that the writ petitioner has not been communicated till
date about the late of his application officially, for which he could not take
recourse to appeal as provided by Rule 3 Sub-Rule 10 of licence in favour of
respondent No. 5 indicates rejection of the application of the writ petitioner
but non communication of such rejection has prejudiced the petitioner inasmuch
as it could not prefer appeal of registration and issuance of licence in favour
of Respondent No 5 cannot be said to be bona fid or is in accordance with the
provisions of law and there is violation of principle of natural justice.

Rice Mill Owners
Association Vs. Govt. of Bangladesh & Ors. 10 BLT (HCD)-215

 

Article-102(l)(2)(a)

Purpose of Monitoring
—environment and ecology of Bangladesh are being continuously endangered and
threatened by various activities originating from private and public sources.

Held: In the prevailing situation in our view
ad-interim directions are necessary.

Bangladesh Legal Aid &
Service Trust & Ors. Vs. Govt. of Bangladesh & Ors. 10BLT (HCD)-297

 

Article-102

Natural Justice — Held :
In view of the decision of the Appellate Division reported in 42 DLR (AD) 214
as well as of the decision of the writ petitioner No. 4897 of 1997 we find
substance in the rule and accordingly we direct the respondents to communicate
the result of the review application of the petitioner which was heard on
16.06.1992 pursuant to notice dated 03.06.1992 (Annexure-I) if the petitioner’s
application is still indisposed of the government may take step to dispose of,
the said application for review by creating an appropriate Review forum within
3(three) months from the date of receipt of this order.

Shahidul Islam Vs. Govt.
of Bangladesh & Ors. 11BLT(HCD)-152

 

Article-102

No Locus Standi—the
petitioners have falied to disclose any sufficient interest in the matter of
appointment of the Judges in the Appellate Division. The petitioner are persons
having least knowledge about the appointment and also have no personal interest
and thus they are none but busybody. The fact remains that none of the
prominent members of the Bar have ever come forward to challenge the
appointment the newly appointed Judges of the Appellate Division which clearly
indicates that the citizens at large and the members of the Bar in particular
are not aggrieved. Admittedly two unknown and insignificant citizens have filed
this petition and thus it is apparent and obvious that they have seized the
opportunity and tiled this petition to catch the public eye and to come to
prominence. The petition has been filed for their personal gain or private
profits coupled with political motivation and other oblique consideration. By
appointing the aforesaid judges in the Appellate Division no injury nor public
wrong has been committed by the Government, as the appointment does not offend
any provision of the constitution or any other law. In the instant case the
affected parties are not coming forward for no visible reason. We therefore
find and hold that the petitioners have no locus standi to file the instant
application.

S.N. Goswami & Ors.
Vs. Govt. of Bagnladesh & Ors. 11 BLT (HCD)-213

 

Article-102(2)(a)(ii)

Writ of Certiorari

This writ lies only
against the order of public authority. The object of certiorari is to prevent
usurpation of jurisdiction by inferior tribunal, but it cannot issue as a cloak
of appeal in disguise. Certiorari should issue as of right only for such
applicant as has suffered an infraction of personal right.

S.N. Goswami & Ors.
Vs. Govt. of Bagnladesh & Ors. 11 BLT (HCD)-213

 

Article-102(2)(b)(ii)

Writ of quo-warranto

Writ in the nature of
quo-warranto is provided by Article 102 (2)(a) (ii) of the constitution. Quo-warrantois
regarded as an appropriate and adequate remedy to determine right or title to a
public officer and to oust one who has unlawfully usurped or intruded to such
public office. Proceeding in quo-warranto against a public officer is for the
purpose of deterring whether he is entitled to hold the office and discharge
it’s function and quo­warranto affords a judicial inquiry into such matter.

S.N. Goswami & Ors.
Vs. Govt. of Bagnladesh & Ors. 11 BLT (HCD)-213

 

Article-102

Maintainability — When
applicability or non-applicability of certain Orders. Notifications. Rules are
in question, in that case, it is a question of interpretation of law. Where
interpretation of law is in question, the Write Petition is maintainable.

M/S Reliance Auto Ltd.
Vs. Commissioner of Customs & Ors.11 BLT (HCD)-258.

 

Article-102 read with

Customs Act, 1969

Section-194(1)

The Petitioner has taken
a ground of hardship and also has furnished a bank guarantee for the full
account. The Commissioner of Customs being an appellate authority by exercising
his statutory discretionary power could have accepted the appeal.

Ocean Trade Ltd Vs.
Customs & Vat 11 BLT(HCD)-435.

 

Article-102

In the instant case it
is noted that the Minister and the officials under the Ministry were under an
implied duty to act in good faith and fairly listening to the concerned
parties, for that is a duty lying upon everyone who decides anything before the
impugned cancellation the petitioner or the Managing Committee of the Madrasha
should have been given a fair opportunity of being heard. It appears from Annexure-F
the impugned memo that no reason has been assigned for cancellation of the
monthly payment order list.

Md. Abdul Aziz Vs. Govt.
of Bangladesh Ors. (HCD)-272

 

Article-102

A show-cause notice does
not violate any of the fundamental rights guaranteed to citizen by the
Constitution of the People’s Republic of Bangladesh and as such no Writ
Petition is maintain-able against a show cause notice.

Diplomat Garments Pvt.
Ltd. Vs. The Commissioner of Customs & Ors 11 BLT (HCD)-303

 

Article-102

Pre-matured-—Held; As we
find that no such demand of payment of money has yet been made by the
respondent from the petitioner, she is at liberty to give reply to the
show-cause notice on receipt of a copy of the investigation report. The
respondents are directed to supply a legible copy of the investigation report
to the petitioner forthwith.

Diplomat Garments Pvt. Ltd.
Vs. The Commissioner of Customs & Ors 11 BLT (HCD)-303

 

Article-102

Import and marketing of
the foodstuff, “Mini Pack Lychee Jelly”

The report of the Public
Health Laboratory of the Public Health Institute- In the report dated
28.01.2003 it is stated that result of the tests of “”Mini Pack
Lychee Jelly” being satisfactory and no adverse comment found in the
internet, taking of the jelly could be considered tit for human consumption
subject to the caution printed on its label. Then, it records the comment
saying that in view of the Pure food Ordinance, 1959 and the Rules made under
the Ordinance eating of the jelly is tit for human consumption.

Held: Order of the
Ministry of commerce and the notification issued by respondent No.6 dated
02.05.2002 are hereby quashed.

Md. Kamrul Hassan &
Ors Vs. Ministry of Commerce & Ors 11 BLT(HCD)-325

 

Article-102

Since the petitioners
appointed on muster roll basis and on consolidated pay basis under the project
were subsequently regularized and their posts adjusted against newly created
regular posts, in our view cancellation of the regularization and adjustment
orders by the same authority without assigning any reason and without giving
them any opportunity of being heard is illegal and without any lawful
authority.

Md. Rana Masud Vs.
Jamuna Multipurpose Bridge Authority & Ors. 11 BLT(HCD)-328

 

Article-102

Legitimate expectation –
In the instant Case the petitioners were never appointed as regular employees
or officers of the DLSA but each of them were appointed to work for a period of
89 days and after 89 days, after some interval they were appointed for further
period. In this way each appointment was only for maximum period of 89 days and
we have also noticed that in each appointment it is clearly mentioned that the
appointment is not an assurance for further absorption. So, knowing fully well
that there is no assurance for future absorption, the petitions accepted the job
on daily wage basis the Petitioners have no legitimate expectation.

Md. Monjur Alam & Ors.
Vs. Dhaka Electric Supply Authoritv. 11 BL T (HCD)-314

 

Article-102 read with

Code of Civil Procedure, 1908

Order 47 rule-1

Order Passed by Artha
Rin Adalat — if any mistake is committed in passing any order under the
provisions of CP. Code and in applying the provisions of the Code in execution
proceedings, then which Court will correct that mistake or apparent mistake.
The trend of the decisions of this Court indicate and suggest that such mistake
palpable of apparent or gross in nature may be corrected in appropriate eases
to do justice and undo injustice by the Court having Civil jurisdiction by
exercising its power both under section I 15(1) and 151 of the Code of Civil
Procedure but the constitutional court under article 102 in any view of the
matter cannot exercise its power to correct mistake or error committed by the
Artha Rin Adalat and there is no indication in the above cited cases, that the
interlocutory order passed by the Artha Rin Adalat is amendable to the
jurisdiction of this Division under Article 102 of the Constitution.

Agrani Bank Vs. Artha
Rin Adalat & Ors. 11BLT(HCD)-432

 

Article -102 read with

Customs Act, 1969

Section -196 B

When order results from
non-exercise of jurisdiction vested in a statutory body and is ex facie without
jurisdiction, invoking of constitutional jurisdiction under article 102 of the
Constitution is not barred. Moreover, when interpretation of a section of the
Customs Act. of public importance is sought for by making an application under
article 102 of the Constitution such application cannot be said to be not
maintainable notwithstanding the statutory remedy, even if any.

Bureau Veritas
Bangladesh Ltd. Vs. The Appellate Tribunal. Customs & Ors. 11BLT (HCD)-316

 

Article-102

The petitioner even if
is an accused in another criminal case shall not, according us, be debarred
from seeking relief from this Court in an application under Article 102 of the
Constitution, to challenge another order if the said order is found to be
without lawful authority or of no legal effect. Moreover, an action taken
without lawful authority can be challenged, according to us, by an aggrieved
person on an application under Article 102 of the Constitution, and the
criminal case against him if nay or non appearance in the said criminal case
shall not, according to us. debar him from seeking justice in this forum under
Article 102 of the Constitution.

Md. Shafiqul Islam
Shimul Vs. Ministry of Homes Affairs 11 BLT(HCD)-386

 

Article-102

The Customs authority as
per provision of section 81 of the Act was required to make the
provisional assessment final
within the reasonable
time. In respect
of the consignments of the respondent the customs authority  made 
provisional  assessment in between
July, 1991 and February, 1992, but till August 1997 the customs authority did
not make  the  assessment
final although the authority had
the materials before it for making the final assessment of duties and order
levies on the imported goods of the respondent taking the value at US# 400 per
Metric ton. The customs authority inspires of having the materials for
making the provisional
assessment final did not make final assessment till August.  1997 taking the value of the imported goods
at US$ 400 per Metric ton. The customs authority inspire of having the
materials for making
the provisional assessment final did not make final assessment till
August. 1997 taking the value of the imported goods at US$ 400 per metric ton and
thus the respondent was compelled to tile the writ petitions seeking direction
for the refund of the excess amount of duties realized from him at the time of
provisional assessment without basis. In our view in the background excess
amount of duties realized against the goods imported by the respondent.

Bangladesh & Ors.
Vs. Md. Salim Hossain 11 BLT (AD)-71

 

Article-102

Nature of Certiorari —
Admittedly respondent No. 1 has not prayed for his reinstatement in service
with back wages, relief sought for is declaratory form and the Labour Court
found that such relief is not available to the respondent even though he has a
good case for directing reinstatement. It appears from the perusal of the
record that the Labour Court found that the respondent has a case but because
of wrong prayer no relief can be granted. The High Court Division on the other
hand granted relief by way of reinstatement. In view of the aforesaid decisions
of this Court we hold that the High ‘ Court Division was not justified in
passing the order of reinstatement of the respondent in service with 50% back
wages. The High Court Division acted beyond jurisdiction.

B.T.C Ltd & Anr. Vs.
Md. Azizul Huq & Ors. 11 BLT(AD)-84

 

Article-102

Secure the ends of
Justice for the fault of the petitioners, the respondent No. I should not
suffer as he had only last chance to be admitted into M.S. Course (Urology)
pursuant to the notification dated 4.1 1.1999 which was for one year only and
accordingly allowing to pursuit him higher education in M.S. Course (Urology)
on being admitted in the said Course even by increasing one seat if necessary
by the authority as mentioned in the impugned order do not suffer from any
illegality but the same is also warranted in the facts and circumstances of the
case, in order to secure the ends of justice.

Dhaka Medical College
Vs. Dr. Manzoor Rasheed Chowdhury & Anr. 11 BLT (AD)-129.

 

Article-102

We find that while the petitioner
submitted his application filling up the BPSC form No. 2 she indicated her
preference for the police cadre and accordingly she was allowed to sit at the
written examination and after she was successful in her written examination she
was allowed to appear before the Viva Voce Examination. Board and after
completion of the same successfully she was selected for the service. Selection
of the petitioner was processed by computering the result of the written
examination and the viva voce examination and long after her selection she-was
informed that she did not fill up the form properly and legally and the
selection was cancelled.

Held— The High Court
Division has given correct and cogent reason to declare the cancellation order
as illegal and without any legal effect.

Govt. of Bangladesh &
Ors. Vs. Farida Yesmin 11BLT (AD)-94

 

Aritcle-102

Direction for refund of
the amount claimed by the respondent.

Since the papers on the
basis whereof the High Court Division has arrived at the definite finding that
the petitioners owe to the respondent an amount of Tk. 4,56,000/- can in way be
was be considered disputed materials or judgment sought to be appealed is
called for.

A.D.C. (Rev) & Ors.
Vs. Co-operative Society Ltd. 11 BLT(AD)-91

 

Article-102 Read with

Dhaka University Order, 1973, Article-52

When it is found that
the election was conducted in derogation of the clear provision of law that
election cannot be construed as an election as contemplated under the Statute
and in such circumstances the election that was held and result published by
the Vice Chancellor can be questioned in Writ jurisdiction.

Dhaka University Vs. G.
Ahmed Chowdhury & Ors. 11 BLT(AD)-222.

Article 102

Natural Justice—
Non-Supply of enquiry report along with the 2nd Show Cause notice violated the
rule of Natural Justice.

BADC Vs. S. H. Bhuiyan
& Ors 11 BLT (AD)-164

 

Article-102

Appointment of Temporary
Nikah Registrar by way of curtailing the area of the petitioner. Curtailment of
the area of a Nikah Registrar is within the jurisdiction of the Government.

Monwar Hossian Vs. Govt.
of the Bangladesh & Ors. 11 BLT(AD)-168

 

Article-102 read with

Securities and Exchange Commission

Rule, 1995 Rule-56(1)

Whether Show Cause
Notice is required Having regard to the terms and conditions of the
petitioner’s appointment letter and the provisions of law of Securities and
Exchange Commission Rule we find that the High Court Division committed no
illegality in holding that the impugned order being a pure and simple order of
termination without any stigma. In such view of the matter, we find that no
show cause notice is required to be issued in the matter of such removal by way
of termination.

Khaled Ahmed Vs. S. E
Commission & Ors 11 BLT (AD)-173

 

Article-102

Not Maintainable – In
the instant case the impugned order has been passed in the execu­tion proceeding
and the petitioner could avail the provision of order 21 rule 90 of the Code of
Civil Procedure in setting aside the auction sale on ground of material
irregularity and fraud alleged by any of the party to the execution proceeding
arising out of judgment and decree passed under the Ain as the same could have
been adequately dealt with under the said provision, and in the facts and
circumstances of the instant case the writ jurisdiction is not maintainable for
deciding the question of fraud and material irregularity ill publishing and
conducting the sale, which are essentially a question of fact to the determined
on evidence and could not be conveniently dealt with in writ jurisdiction.

M/S Antibiotic Stores &
Ors Vs. Artha Rin Adalat & Ors 11 BLT(AD)-133

 

Article-102

Not Maintainable-The
respondent prayed for a declaration that the impugned order/ supersession dated
18.12.1994 passed by the Ministry of Environment and Forest should be declared
to have been passed without lawful authority and also prayed for considering
the seniority of the petitioner while promoting officers to the posts of Deputy
Conservator of Forests. The prayer portion indicate that the writ petition is
in respect- of terms and conditions of service— we are of the view that the
writ petition as filed is not maintainable.

Ministry of Environment of
Forest & Anr. Vs. Shah Md. Nurul Islam. 11 BLT(AD)-146

 

Article-102

Forum for a redress of
the adverse remarks.

The petitioner seems to
have a genuine grievance because of the adverse remarks made against him which
is likely to affect him prejudicially. He appeared as a witness for a party and
his evidence can be legitimately made a subject of comment by the authority
hearing the matter but to say further that he was an undesirable person for the
purpose or management of the estate/ mosque (which is found to have been
established by hi grandfather) was perhaps going too far. 1 le was not told
beforehand that he was a bad person and so cannot be included in the managing
committee. At the same time, we have no manner of doubt forum for a redress of
his grievance. He should have moved the Administrator of Waqfs for expunging
the uncharitable remarks made against him instead of rushing in with a writ
petition which was not well conceived. The petitioner may still approach the
Administrator of Waqfs if he so likes to consider his case for expunging the
remarks which are claimed to be adverse and not necessary for the purpose of
disposal of the proceeding in question.

Md. AH Akbar Vs. The
Administrator of Waqfs & Ors 8BLT (AD)-31

 

Article-102

Item No. 72.04 of
Section XV of the First Schedule to the Customs Act. 1969 —As is clear from the
facts of this case the order of adjudication contains not only an
interpretation of technical words used in the Customs Act but also a technical
appreciation of the nature imported goods. On such matters the High Court
Division is no the proper forum for a final adjudication at the first instance.
The National Boars of Revenue having both the technical competence and technical
assistance available on hand was in a better position to adjudicate upon the
Adjudication Order and the subsequent order. If thereafter any point of law was
left to be decided further either side could have then invoked the writ
jurisdiction.

Govt. of Bangladesh  Vs. 
Section Steel Industries Ltd. & Ors 8BLT(AD)-34

 

Article-102

In the instant case, the
writ petitioner is a Government servant. He has not challenged the vires of any
law. His grievance relates to the terms and conditions of his service. The High
Court Division is therefore correct in its view that the writ petitions are no
maintainable under Article 102 of the Constitution.

Md. Shamsul Islam Khan
Vs. Ministry of Communications & Ors 8BLT(AD)-64

 

Article-102

Locus stadni—being added
as a party in the writ petition.

Evert when a political
party which obtained a protected symbol before the general election held on the
12th June. 1996 decides not to take part in a by election, the Returning
Officer is still under a cautionary direction of the Election commission to
scrutinize the written documents of a candidate if he presents himself as a
nominated candidate of a political party which took part in the general
election held on the 12th June. 1996, It is the case of the appellant that it
did not nominate the writ petitioner as its candidate for the by election in question
and therefore it has a sustained interest in its protected symbol ‘Langal”.
It the decision of the High Court Division in the impugned judgment is to the
effect that the symbol ‘Langal’ will be allotted to a person who has not been
nominated by the appellant as its candidate in the by election in question,
than that political party, namely, the appellant, has every locus standi to
prefer this appeal and prosecute the same in order to safeguarded and protect
its claimed protected symbol.

Jatiya Partv Vs.
Motassim Billah & Ors 8BLT (AD)-100

 

Article-102

Interference at an
intermediate stage in the election process.

We have gone through the
writ petition. We do not find that there is any allegation as to Coram non
judice or absence of jurisdiction or malice in law in the writ petition. The
grounds taken are that the order of rejection of the Returning Officer dated
19.04.1999 is arbitrary, mala fide, without lawful authority and for collateral
purpose There is absolutely no factual matrin justifying the allegation of mala
fide and lateral purpose the impugned order was passed— writ petition is not
maintainable.

Jatiya Partv Vs.
Motassim Billah & Ors 8 BLT (AD)-100.

 

Article-102

Interpretation of
direction of the Election Commission.

Allocating a protected
symbol —The High Court Division has observed that it was not the question
before the Returning Officer as to which of the two factions is entitled to the
symbol ‘Langal” In its opinion the question before the Returning Officer
was whether after withdrawal of candidature by Mr. Abdul Hamid, respondent No.
I, whatever faction of Jatiya Party he belonged to was entitled to the symbol
of ‘Langal’ This is again a misdirected opinion of the High Court Division.
Both Mr. Abdul Hamid if he was in the race and respondent No. I were required
to produce their respective written documents before the Returning Officer if
both of them claimed the protected symbol ‘Langal’ It only one of them remains
in the race he too has the obligation to produce written document before the
Returning Officer to show that he is nominated by that political party which
obtained the protected symbol ‘Langal in the General Election held on the 12th
June, 1996. That is the burden of proof of any candidate does not produce
written documents to the Retiming Officer to satisfy him on this point then
the-Returning Officer imperfectly entitled to refuse him to allocate the
protected symbol on the ground that the failed to produce his papers. It is a
contested mater before him. he will evaluate both sides written documents and
come to a decision according to his best judgment.

Jatiya Partv Vs.
Motassim Billah & Ors 8BLT (AD)-100

 

Article-102 and

Bangladesh Tariff Commission Act, 1992 [Act No XLIII of
1992] and

The Evidence Act, 1872 Section-114

We are of the view that
when a writ petition is tiled on abald assertion that the high powered
committee arbitrarily and fictitiously raised tariff value without any
objective material before it. the High Court Division ought not to rush into
issuing a Rule Nisi and stay payment of duties and taxes. It should take notice
under section 114(c) of the Evidence Act, 1872 and should start with the
presumption of regularity in official business. Initially, in the writ petition
itself, the writ petitioner must include some reliable and relevant materials
to show that between the last date of fixation of tariff value and the impugned
date of fixation of tariff value the international market prove of a particular
imported item has either gone down or has gone up to an extent which is
significantly higher or lower than the impugned fixation of tariff value,
according as the writ petitioner’s case it. It there are no such materials in
the writ petition itself the High Court Division should not entertain the
petitioner and dismiss it in limine.

M/S Kamal Trading Vs.
Commissioner of Customs & Ors SBLT (AD)-108

 

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 dispute to the Election Commission. He is statutory functionary
discharging a constitutional obligation. Being creature of a stature, i.e. a
subordinate legislation, he is very much amenable to the writ jurisdiction of
the High Court Division.

Secretary. Parliament
Secretarial Vs. Khondaker Delwar Hossain & Ors 8 BLT (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 becomes a Senior Accountant having been
recruited by the Board and thus he lost his original character of a Government
servant. After the 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 I8(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 the Board and therefore he
squarely qualified to the a 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 Alain & 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-109

Held : It may be
mentioned hare that in exercise  of
supervisory jurisdiction under Article 109 of the Constitution the High Court
Division has got power to call for any records pending before the Subordinate
Court but then in a case where provision of filing of a revision is barred
under special statue I am afraid the argument of Mahmudul Islam that revision
lies is not entertainable. There are various decisions form Indian jurisdiction
where it has been held that for fundamental basic principle of justice and fair
play or where a patent or flagrant error in the procedure or law has crept in
or where the order was passed resulting in manifest injustice the High Court
Division in exercise of its supervisory jurisdiction can interfere, even if no
appeal or revision has been filed. But in a case whether a statute bars
entertainment of a revision the exercise of supervisory power under Article 109
of the Constitution is not available.

Mrs. Hosne Ara Begum &
Anr. Vs. Islami Bank Bangladesh Ltd. 9BLT (AD)-1

 

Article-113 read with

Administrative Tribunals Act, 1980

Relating to transfer of
a government Servant

It may be argues that
the Administrative Tribunal had no authority to order of stay or injunction hut
when a person is transferred from one place to another he is to follow or abide
be that order. If by the order of transfer any terms and conditions of service
is violated his remedy lies before the Administrative Tribunal. But it cannot
be a ground to issue and order of stay by the High Court Division only on the
ground that the Administrative Tribunal had no authority to pass any such
order.

Bangladesh & Ors.
Vs. S. M. Fariduddin & Ors. 11BLT(AD)-51

 

Article-115

The word
“appointments” in Article 115 means that it is the President who
under Article 115 can create and establish a judicial service and also a
magistracy exercising judicial functions, make recruitment rules and all
pre-appointment rules in that behalf, make ruled regulating their suspension
and dismissal but % Article 115 does not contain any rule making authority with
regard to other terms and condition of service and that Article 13.1 and
Article 13.6 of the Constitution and the Services (Reorganization and
conditions) Act. 1975 have no application to the above matters in respect of
the judicial service and Magistrates exercising judicial functions.

Govt. of Bangladesh Vs.
Md. Masdar Hossain & Ors. 8BLT (AD)-234.

 

Articles-115, 133 and 136

Separate Judicial Public
Service Commission

Articles 133 and 136 are
general provision but article 115 is a special condition. This power of the
President cannot be obliterated when Palrliment makes or exhausts its exercises
under Article 136. The President is not empowered to act under the proviso to
Article 133 when he is required to do under Article 1 15. The Parliament in
exercise of its power under Article 136 cannot usurp the primary rule making
power of the President under Article 115. Article 136 will always have to be
read keeping in view the fact that the reorganization of the services cannot be
allowed by amalgamating or unifying the judicial service with any civil
administrative executive services. Article 133 or Article 136 does not
authorize the Parliament or the President to minimize the independence of the
subordinate judiciary resorting to subordinate legislation or rules. Security
of salary and other recommendation of the members of the judicial service is
ensured through the financial independence of the judiciary and as such
there-should be a completely different pay commission to determine the grade,
scale of pay of the members of the judicial service.

Secretary Ministry of
Finance Vs. Md. Masdar Hossain & Ors. 9 BLT (AD)-67.

 

Article-116

In exercising control an
discipline of persons employed in the judicial service and Magistrates
exercising judicial functions under Article 116 the views and opinion of the
Supreme Court shall have primacy over those of the Executive.

Govt. of Bangladesh Vs.
Md. Masdar Hossain & Ors. 8BLT(AD)-234

 

Article-116 read with

Representation of People’s Order, 1972

Article-91A

Over a by-election the Election
Commission formed a committee to inquire into certain allegations Held: The
petitioner who fought the b\-election cannot have any choice in the persons who
are to act as members of the committee. It is in between the Election
Commission and respondent No. l and when the Election Commission accepted the
formation of the committee which was formed with the approval of the Supreme
Court the petitioner has not cause to be apprehensive on the formation of the
committee.

Bangabir Kader Siddique,
Bir Uttam Vs. Govt. of Bangladesh 9BLT (AD)-139

 

Article-116

In exercising control a
discipline of persons employed in the judicial service and Magistrates
exercising judicial functions under Article 116 the views and opinion of the
Supreme Court shall have primacy over those of the Executive.

Bangabir Kader Siddique,
Bir Uttam Vs. Govt. of Bangladesh 9BLT (AD)-139

 

Article-117

When fundamental right
is sought to be enforced only to avoid the alternative remedy available under
the law such as by a public servant in respect of any of the terms and
conditions of his service by filling a writ petition without going to the
Administrative Tribunal constituted under the Administrative Tribunals Act,
1980 made in pursuance of any law’ or rule relating to his terms and conditions
of service is questioned such petition is not maintainable.

Bangladesh & Ors.
Vs. Mizanur Rahman 9 BLT(AD)-166.

 

Article-133 Read with Bangladesh Agricultural Development
Corporation Service Regulations 1968

(As Amended 1990)

It is true that there is
no right of promotion but it is also true that an employee has a right to be
considered of promotion, which is a condition of his service. Article 133 of
the constitution gives the authority power to regulate the appointment and
ser\e conditions of persons in the service of the republic. But it does not
give power to prohibit promotion beyond the provision of law. The term
“regulate” is not complementary to the term “prohibition”
Therefore, none of the provisions of BADC Service Regulations. 1990 is to be
read to impose prohibition on the promotion of the writ petitioner respondent
to the post of the Superintending Engineer as a right had already accrued to
him under BADC Service Regulations. 1968.

Motiur Rahman & Ors.
Vs. BADC 11BLT (AD)-151.

 

Article-133

Under Article 133 law or
rules or executive orders having the force of Rules relating to posting,
promotion, grant of leave, discipline (except suspension and removal), pay.
allowances, pension (as a matter of right, not favour) and other terms and
conditions of service, consistent with Articles, 116 and 116A, as interpreted
by us, be enacted or framed or made separately for the judicial service and Magistrate
exercising judicial functions keeping in view the constitutional status of the
said service.

Govt. of Bangladesh Vs.
Md. Masdar Hossain & Ors. 8BLT (AD)-234

 

Article-135

Appointment in the post
of Chief of Army Staff.

The post of Chief of
Army Staff is a post in which the Government must have absolute trust, faith
the confidence for the necessity of State security and naturally such a person
in the post of Chief of Army Staff of a country holds office during the
pleasure of the President as contemplated in Article 134 of our constitution.
Since the petitioner is military personnel the doctrine of pleasure theory of
the President as contemplated in the Constitution is applicable in this case,
contrary to Article 135 of the Constitution.

Major General Moinul
Hdssain Chowdhurv Vs. Govt. of Bangladesh & Ors. 8BLT (AD)-95.

 

Article-152(1)

The judicial service is
a service of the Republic within the meaning of Article 152(1) of the
Constitution, but it is functionally and structurally distinct and separate
service from the civil executive and administrative services of the Republic
with which the judicial service cannot be placed on par on any account and that
it cannot be amalgamated, abolished, replaced, mixed up and tied together with
the civil executive and administrative services.

Major General Moinul
Hossain Chowdhury Vs. Govt. of Bangladesh & Ors. 8BLT (AD)-95.