President’s Order


President’s
Order

 

President’s Order No. 12 of 1972

P.O. No. 12
of 1972 has no application in case of a private document. [Para-13]

Abdul Kaleque Sarnamath Vs Abdul Kaleque Sarnamath & Ors. 3 BLT
(AD)-140.

 

President’s Order No. 69 of 1972

Article-4 (2) and

President’s Order No. 90 of 1972

Article-2

Abatement of
a suit — The instant suit was instituted against the Province of East Pakistan
and the Deputy Commissioner of Dhaka. By virtue of clause (I) of Article 4 of
Presidents Order No. 69 of 1972 Bangladesh was deemed to be substituted for the
Province of East Pakistan, but clause (2) left an option to the Government of
Bangladesh not to be impleaded in which case the suit was to abate as a whole if
it was not maintainable against the rest of the defendants. In this case bereft
of the Government of Bangladesh there are no parties against whom the suit
could continue. The Government having submitted a written application to the
court stating that it would not be a party to the proceeding the suit as a
whole abated with effect from the date of submission of such application.
[Para-18]

Bangladesh Vs. Chowdhury Tanbir Ahmed Siddiky 5 BLT (AD)-236

 

P. 0. No. 142 of 1972

Section – 5

Majority
View

Inclusion of
the building in the list — The decree in the suit for specific performance of
contract will show that it has only decided the controversy between the vendor
and the vendee and directed the vendor to execute the necessary document in
favour of the vendee— such a decree if not the one which is mentioned in
Proviso (a) and as such the existence of such a decree cannot be pleaded as a
bar for inclusion of the building in the list. [Para-23]

Md. Ayub Ali Vs. Bangladesh & Ors. 3 BLT (AD)- 146

 

P.O. 149 of 1972

The
questions whether by his conduct the respondent disqualified himself to be a
citizen of Bangladesh or whether be renounced his citizenship of Bangladesh or
whether he continued to be a citizen of Pakistan are totally irrelevant under
Article 3, if the purpose was to elector the persons mentioned in the
modification form making anti Bangladesh propaganda then that was not covered
by Article 3. The only question that can be decided under Art. 3—whether a
person is qualified to be deemed to be a citizen of Bangladesh. The
notification indicates that the government did not ask the right question,
namely, whether the respondent was a permanent resident in Bangladesh on 15
December, 1972. It was not made in exercise of power under Art. 3 and it,
therefore, must be held to be ultra-vires. [Para-27]

Prof. Golam
Azam tried to come back to Bangladesh, his time for fifty years from his birth.
He surrendered his Pakistan passport. He took an oath of allegiance to
Bangladesh against whose independence he worked although the liberation was in
1971. He resided in Bangladesh for more than 14 years, never visiting Pakistan
or any other country. It was a case of the return of the native back to his
ancestor’s his Pakistani passport. His wife and 7 children are Bangladeshi citizen
by birth. He has got properties in this country. [Para-6]

But
Government’s view is mainly based on the respondent’s political conduct during
the liberation struggle and after. There is complete unanimity on all hands
that the political conduct of the resident was wholly irrelevant for deciding
the question under Article 3 of P.O. No 149 of 1972. There is no power under
Article 3 for denuding a person of his citizenship for the offence of
collaboration with the Pakistan Occupation Army. Indeed, there is nothing in
P.O. No 149 of 1972 which authorised the Government on the date of the impugned
notification to disqualify a citizen on the ground of collaboration with the
Pakistan Occupation Army. Such P.O. was never intended to punish an alleged
collaborator of the said Army by stripping him of his citizenship. [Para-79]

The argument
of the learned Attorney General is long on emotion and short on law. First, his
commentaries on the criminal aspect of the political antecedents of the
respondent were never tested in a court of law. Secondly, even if the
allegations are correct, citizenship law does not deny citizenship to those who
opposed the creation of Bangladesh and even killed freedom fighters and were
engaged in murder, rape, etc. There were many Muslims (and Hindus as well) who
opposed the creation of Pakistan Citizenship law did not deny them citizenship.
They deemed to be citizen of Pakistan if they had permanent residence in the
territory of Pakistan and did not leave the same. Bangladesh also followed the
same principle. In Bangladesh, collaborators and Razakars were prosecuted under
the collaborators order P.O. No 8 of 1972, but they were not denied the
citizenship of Bangladesh.

Bangladesh Vs. Prof Golam Azam & Ors 3 BLT (AD)-3

President’s Order

 

President’s
Order No. 12 of 1972

 

Article 3—

Restoration
of legal proceedings —When restoration can be allowed to defendants that had
sold out their interests in the suit lands­In their application under Article
12 defendant Nos. 2 & 3 did not deny the sale of their interests but they
asserted that they had their ancestral homestead in the suit land and they were
co­sharers of the holding and the suits were compromised in their absence. They
were not required to disclose what stand they would take in their written
statements which could only be filed after the restoration of the suits. The
case made out by them in their present application that they are co-sharers was
good enough for restoration of the suits. The law in the case reported in 35
DLR 86 has not been correctly decided.

Mohammad
Ashraf Ali vs Rajeswar Ghose 43 DLR (AD) 149.

 

President’s
Order No. 16 of 1972

 

Section 2—

Abandoned
property—Meaning of leaving the house—In the “known circums­tances”
referred to by the respondent No. 3 it was not unnatural for him to feel
insecure and leave the house for security. Leaving the house in such a mental
state does not mean that he gave up his right to the property and therefore, it
cannot be said that he ceased to occupy the house.

Abdul Quddus
vs Bangladesh 44 DLR 484.

 

Article 2—

At the time
of taking over the company as abandoned the formation of the opinion of the
Government as to its abandoned character was necesary.

Arif A
Shekha and others vs Bangladesh 47 DLR 289.

 

Article 2—

As the
company and its shares have been vested under President’s Order No. 27 of 1972
on the ground that it was vested in the Government as abandoned property, under
President’s Order No.16 of 1972 if it is found that the company and shares
thereof does not carry abandoned character then the shares of the petitioners
who were found to have been away from the country and have been residing as its
nationals in any country which was ‘not at war with Bangladesh could not be
treated as abandoned shares.

Arif A Shekha
and others vs Bangladesh 47 DLR 289.

 

Article 2—

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
under Article 102 only if it could be shown that the tribunal had acted without
jurisdiction or made any finding upon no evidence or without considering any
material evidencelfacts causing prejudice to the complaining party or that it
had acted mala fide or in violation of any principle of natural justice.

Government
of Bangladesh, represented by the Secretary, Ministry of Works vs Md Jalil
& others 49 DLR (AD) 26.

 

Articles 4 & 5—

A statutory
vesting cannot go beyond the terms of the statute itself. The Government acting
in the Ministry of Industries under President Order No. 16 of 1972 could not
have assumed either the paramount ownership of or the lessor’s interest in the
disputed land.

National
Engineers Ltd vs Ministry of Defence 44 DLR (AD) 179.

 

Article 102—

The High
Court Division could interfere with the findings of a tribunal only if the
tribunal had acted without jurisdiction or made any finding upon no evidence or
without considering any material evidence causing prejudice to the complaining
party or acted malafide or in violation of the principle of natural justice.

Hamayet
Uddin Ahmed vs 1st Court of Settlement, Bangladesh Abandoned Building & ors
53 DLR 426.

 

President’s
Order No. 26 of 1972

 

Articles 3 & 31—

Termination
of bank employee—Civil court jurisdiction—There is no specific provision either
in the President’s Order in the Bank (Employees) Service Regulation against
termination or employment or imposition of penalty before any court. There is
therefore no question of inconsistency of any provision of the Regulation with
section 25 of the Standing Orders Act as to forum for judicial redress. This
section must be read to have been made applicable in respect of any liability
created under the service regulations. The Courts below therefore fell into an
error of law in not holding that the suits were impliedly barred and the civil
Court had no jurisdiction to entertain the same.

Pubali Bank
Limited vs Mansur Ali Akanda 44 DLR 589.

 

President’s
Order No. 27 of 1912

 

Article 4—

Since the
company is directed to be wound up with effect from 5-2-1982, the Government
cannot now exercise its powers under Article 8 of the Order.

Razia
Sultana vs Government of Bangladesh and others 56 DLR 366.

 

Articles 4 & 10—

As the
company and its shares have been vested under President’s Order No.27 of 1972
on the ground that it was vested in the Government as abandoned property, under
President’s Order No.16 of 1972 if it is found that the company and shares
thereof does not carry abandoned character then the shares of the petitioners
who were found to have been away from the country and have been residing as its
nationals in any country which was not at war with Bangladesh could not be
treated as abandoned shares.

Arif A
Shekha and others vs Bangladesh 47 DLR 289.

 

Articles 10 & 17—

The present
definition of the local authority as contained in section 3(28) of the General
Clauses Act included a corporation like Bangladesh Chemical Industries
Corporation or Bangladesh Food and Sugar Industries Corporation which are
brought into existence under the provisions of President’s Order No. 27 of
1972.

Commissioner
of Taxes vs Bangladesh Chemical Industries Corporation 53 DLR 509.

 

President’s
Order No. 69 of 1972

 

Article 4(1)—

The
Government of Bangladesh is not a successor of the defendant, Province of East
Pakistan. It substituted itself as a party by a legal fiction under Article
4(1) of PO No. 69 of 1972 and acquired a right to have heard the suit de nova,
irrespective of whatever hearing took place before liberation of Bangladesh.

Chowdhury
Tanvir Ahmed Siddiky vs Bangladesh 40 DLR 331.



 

President’s
Order No. 88 of 1972

 

President’s
Order No. 88 of 1972 created special forum for restoration of mortgaged
property. But it did not take away right of redemption available to a mortgagor
by filing a mortgage suit.

Asmat Ali vs
Abdur Rafique Mridha and others 52 DLR (AD) 132.

 

President’s
Order No. 90 of 1972

 

Article 2—

The process
of acquisition becomes final only after publication of the notification in the
official Gazette declaring that the compensation assessment roll has been
finally published. The property vests in the government only after such
notification is published. The present case does not come within the mischief
of President Order 90l72 since the plaintiff seems to be in possession of the
property and there is absence of the required notification.

Khorshed
Ahmed Chowdhury vs Bangladesh 43 DLR 264.

 

President’s
Order No. 135 of 1972

 

Second
diluvion of the suit land took place in 1362—63 BS and re—appeared in 1374
BS—clauses (2) and (3) attracted because diluvion .took place before the
commencement of PO No. 135 of 1972—Plaintiffs right was never recognised under
clause (3) of section 86—The view taken by the lower court and upheld by High
Court Division is correct.

Syed
Nizamuddin Mohasin vs People’s Republic of Bangladesh 41 DLR (AD) 141.

 

Articles 2 & 3—

In the lands
which were in diluvion prior to 13th July, 1994 the right of the original
tenant or his successors would continue if the lands re—appear in situ within
30 years. The Government can only claim such of these lands in diluvion which
had re—appeared prior to 13th July under the PO No. 135 but cannot claim such
right in respect of lands which in still is diluvion.

Kajemuddin
Miah (Md) vs Bangladesh and others (Spl Original) 52 DLR 240.

 

President’s
Order No. 136 of 1972

President’s
Order No. 88 of 1972 created special forum for restoration of mortgaged
property. But it did not take away right of redemption available to a mortgagor
by filing a mortgage suit.

Asmat Ali vs
Abdur Rafique Mridha and others 52 DLR (AD) 132.

 

President’s
Order No.147 of 1972

Article  28—

Local
Authority—As the expression “any authority” falls in the incusive
definition of the local authority it cannot be said that “any
authority” does not include the school in question, specially in absence
of any explicit language in the Ordinance by which the expression
“school” is excluded from the definition of “any
authority”.

Abdul Mazid
vs Abu Zaffor Mohammad Khalil and others 47 DLR 242.

 

President’s
Order No. 149 of 1972

Article 2(ii)—

Right of
citizenship- ­Domicile certificate issued by the then Government of East
Pakistan in favour of the ‘petitioner would go to show that he was recognised
as a national of Bangladesh and was permitted to livein Bangladesh permanently.
The petitioner’s living in Bangladesh clearly responds to the requirement of
Article 2(ii) and he is deemed to be a citizen of Bangladesh. Mere filing of an
‘application by him for repatriation cannot take away this right of
citizenship.

Abdul
Khaleque vs Court of Settlement 44 DLR 273.



 

President’s
Order No. 150 of 1972

Article 7(3)—

Right to
practice as an Advocate of the Appellate Division—Question of entitlement to
practice before the Appellate Division of the Supreme Court of Bangladesh by an
Advocate of the then High Court of Bangladesh without having enrollment under
Supreme Court of Bangladesh (Appellate Division) Rules, 1988—The appellant was
entitled to practice before the Appellate Division of the then High Court of
Bangladesh under President Order No. 9 I of 1972 and this entitlement continued
till 16th December, 1972. With effect from that day, which is the day of
commencement of the Constitution of Bangladesh the provisions of Article 7(3)
of President’s Order No. 150l72 came into force, and thereunder any reference
in any law to an Advocate of the High Court of Bangladesh shall be construed as
an Advocate entitled to practice before both the Divisions of the Supreme
Court. Also section 6(c) of the General Clauses Act will apply to the
appellant’s case so as not to affect his right accrued under the repealed law
(President’s Order No. 91172).

Shamsuddin
Ahmed vs Bangladesh 44 DLR (AD) 203.

 

President’s
Order No. 7 of 1973

Article 27—

The word ????? in this
second refers to ‘suit’ and not to all kinds of legal proceedings.

Bangladesh
House Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD)
80.

 

Article 27—

‘Suit, is a
term of art and ordinarily means a proceeding instituted in the Civil Court by
presentation of a plaint. The action contemplated under Article 27 is,
therefore, outside the concept of
????? which we have found to correspond with ‘suit’ as provided in the
main part of section 5(1) of the Act,

Bangladesh
House Building Finance Corporation vs Jahan Ara Akhter & others 49 DLR (AD)
80.

 

President’s
Order No. 17 of 1973

Article 4(1)—

Election to
seats reserved for women—Who are the voters for such election­Persons elected
as members to the Parliament from the general seats shall make and subscribe
oath as early as possible before the Speaker or the person designated by him
within a date given by him: The person who administers the oath in respect of a
member of the Parliament shall forthwith inform the Election Commission of the
administration of such oath as only those elected members of the Parliament who
have made oath shall be voters for the purpose of election to seats reserved
for women members in Parliament.

Fazle Rabbi
vs Election Commissioner 44 DLR 14.

 

President’s
Order No. 19 of 1973

Articles 3-8

Honest user
of a trade mark for a long time—Registrar fails to exercise jurisdiction to
dispose of the petition for registration of the trade mark—Petitioners Sattar
Match Works acquired a right to use the trade mark ‘Cock’ and got summary
registration for the same by concurrent and honest user for about three decades
along with Ujala Match Factory. In order to do complete and substantial justice
the Court in exercise of its inherent discretionary jurisdiction gives
direction to the Registrar of Trade Marks to grant summary registration for the
trade mark without prejudice to the Ujala Match Factory for its concurrent use
of the same trade mark ‘Cock’.

Sattar Match
Works vs BCIC 43 DLR 532.

 

President’s Order No. 34 of 1973

President’s
Order No. 88 of 1972 created special forum for restoration of mortgaged
property. But it did not take away right of redemption available to a mortgagor
by filing a mortgage suit.

Asmat Ali vs
Abdur Rafique Mridha and others 52 DLR (AD) 132.

 

President’s Order

President’s Order No. 12 of 1972

P.O. No.
12 of 1972 has no application in case of a private document.

Abdul Kaleque
Sarnamath Vs Abdul Kaleque Sarnamath & Ors. 3BLT (AD)-140

President Order No. 16 of 1972 Article-6

In the
instant case the admitted position that the government acting through the
Ministry of



public
work having considered all aspects of the case released the suit property in
favour of Md. Hanif vide release order dated 11.11.1981 since the suit property
was not an abandoned property in law therefore sale deed dated 16.07.1981
executed and registered in favour of respondent No. 1 Shahida Begum by Md.
Hanif had conferred title to Shahida Begum in respect of the suit property.

Most Asia Begum
& Ors. Vs. Shahida Begum & Ors. 12 BLT (AD)-69

Article – 6

Whether the property
became abandoned property by law

It
appears that there is no material on record to show that Abdul Jalil was in
possession of the suit property after liberation of the country or he managed,
supervised or controlled the property. Therefore, by operation of law that is
P.0.16 of 1972 the property become abandoned property and the plaintiff
purchased the suit property at a time when the same was abandoned property and
such transfer is hit by Article 6 of P.0.16 of 1972.

The Government of
Bangladesh Vs. Israt Jahan Kazal 14 BLT (AD)260

President Order No. 27 of 1972 Article-9

Since
the transfer never took effect the respondents are the legal holders of the
shares. It means 1,25,000 shares lying in the share register as on December,
1972 are lying in the name of the respondent company. Therefore, though the
Eastern Federal Union Insurance Company Limited was nationalized but the
aforementioned number of shares not having been transferred in its name the
title to the shares remained with the respondents.

Bangladesh Jute
Mills Corp. Vs. Shilpa Protisthan Ltd. & Ors. 12 BLT (AD)-50

P.O. No. 59 of 1972 Article-4(3)

Article
4(3) was never meant to be a provision for enabling the Government to interfere
with the day-to-day function of either Board in an individual case and in a
particular contractual matter between a Board and a contractor. If the writ
petitioner was aggrieved by the order of deduction from its bills it could
immediately raise a dispute and refer the same for arbitration under clause 25
of the contract between itself and the said Board. The matter would have taken
its usual course in terms of the contract.

Chairman, Bangladesh
Water Development Board & Anr. Vs. M/S Shamsul Haque & Co. Ltd. &
Ors. 9 BLT(AD)-105

President’s Order No. 69 of 1972 Article-4(2)
and President’s Order No. 90 of 1972 Article-2

Abatement of a suit — The instant suit was instituted against the
Province of East Pakistan and the Deputy Commissioner of Dhaka. By virtue of
clause (I) of Article 4 of President’s Order No, 69 of 1972 Bangladesh was
deemed to be substituted for the Province of East Pakistan, but clause (2) left
an option to the Government of Bangladesh not to be impleaded in which case the
suit was to abate as a whole if it was not maintainable against the rest of the
defendants. In this case bereft of the Government of Bangladesh there are no
parties against whom the suit could continue. The Government having submitted a
written application to the court stating that it would not be a party to the
proceeding the suit as a whole abated with effect from the date of submission
of such application.

Bangladesh Vs.
Chowdhury Tanbir Ahmed Siddiky 5BLT (AD)-236



P.O.No. 142 of 1972 Section – 5

Majority View

Inclusion
of the building in the list — The decree in the suit for specific performance
of contract will show that it has only decided the controversy between the
vendor and the vendee and directed the vendor to execute the necessary document
in favour of the vendee— such a decree if not the one which is mentioned in
Proviso (a) and as such the existence of such a decree cannot be pleaded as a
bar for inclusion of the building in the list.

Md. Ayub Ali Vs.
Bangladesh & Ors. 3BLT (AD)-146

President Order No. 142 of 1972 Article-6(a)

Suit was filed
seeking specific performance of Contract

As it
appears the said law was enacted to prevent at the said relevant time obtaining
of the decree of the nature mentioned in Article 6(a) of P.O. No. 142 of 1972.
The said P.O. was enacted to safeguard the interest of the Government as regard
the property that has vested in the Government being the abandoned property or
because of the absence of the rightful owner so that Government is not deprive
of such kind of property by the decree of the kind as mentioned in Article 6(a)
of P.O. No. 142 of 1972. As appears to us the said P.O. has been enacted to
prevent certain kind of transfer of immovable property in derogation of some
legislative enactments and the prohibition therein and that keeping in view the
said dominant purpose of the enactment it in no way can be said that the
contract for the enforcement of which the instant suit was filed the same was
bad for non-impleading the Government as a party.

Md. Esher Ali Sheikh
Vs. Md. Mokarram Ali & Ors 12BLT(AD)133

P. O. 149 of 1972

The
questions whether by his conduct the respondent disqualified himself to be a
citizen of Bangladesh or whether be renounced his citizenship of Bangladesh or
whether he continued to be a citizen of Pakistan are totally irrelevant under
Article 3, if the purpose was to elector the persons mentioned in the
modification form making anti Bangladesh propaganda then that was not covered
by Article 3. The only question that can be decided under Art. 3—whether a
person is qualified to be deemed to be a citizen of Bangladesh. The
notification indicates that the government did not ask the right question,
namely, whether the respondent was a permanent resident in Bangladesh on 15
December, 1972. It was not made in exercise of power under Art. 3 and it,
therefore, must be held to be ultra-vires.

Bangladesh Vs. Prof
Golam Azam & Ors. 3BLT (AD)-3

Prof.
Golam Azam tried to come back to Bangladesh, his time for fifty years from his
birth. He surrendered his Pakistan passport. He took an oath of allegiance to
Bangladesh against whose independence he worked although the liberation was in
1971. He resided in Bangladesh for more than 14 years, never visiting Pakistan
or any other country. It was a case of the return of the native back to his
ancestor’s his Pakistani passport. His wife and 7 children are Bangladeshi
citizen by birth. He has got properties in this country.

Bangladesh Vs. Prof
Golam Azam & Ors. 3BLT (AD)-3

But
Government’s view is mainly based on the respondent’s political conflict during
the liberation struggle and after. There is complete unanimity on all hands
that the political conduct of the resident was wholly irrelevant for deciding
the question under Article 3 of P.O. No 149 of 1972. There is no power under
Article 3 for denuding a person of his citizenship for the offence of
collaboration with the Pakistan Occupation Army. Indeed, there is nothing in
P.O. No 149 of 1972 which authorised the Government on the date of the impugned
notification to disqualify a citizen on the ground of collaboration with the
Pakistan Occupation Army. Such P.O. was never intended to punish an alleged
collaborator of the said Army by stripping him of his citizenship.

Bangladesh Vs. Prof
Golam Azam & Ors. 3BLT (AD)-3

The
argument of the learned Attorney General is long on emotion and short on law.
First, his commentaries on the cjimina1 aspect of the political antecedents of
the respondent were never tested in a court of law. Secondly, even if the
allegations are correct, citizenship law does not deny citizenship to those who
opposed the creation of Bangladesh and even killed freedom fighters and were
engaged in murder, rape, etc. There were many Muslims (and Hindus as well) who
opposed the creation of Pakistan Citizenship law did not deny them citizenship.
They deemed to be citizen of Pakistan if they had permanent residence in the
territory of Pakistan and did not leave the same. Bangladesh also followed the
same principle. In Bangladesh, collaborators and Razakars were prosecuted under
the collaborators order P.O. No 8 of 1972, but they were not denied the
citizenship of Bangladesh.

Bangladesh Vs. Prof
Golam Azam & Ors. 3BLT (AD)-3.