WORDS AND PHRASES
Application of Judicial mind
The High Court Division commits illegality in setting aside an appellate judgment and decree without applying its judicial mind to the materials and vital findings arrived at by the lower appellate Court on consideration of relevant evidence on record.
Usher Rani Ghosh Vs. Sk. Ansaruddin and others, 13 BLD (AD) 186.
Mandatory and directory
An absolute or mandatory rule is the substance as against a directory rule which is a shadow, the former goes to the root of a matter, the latter touches merely the fringe or branch of the matter.
The Secretary, Ministry of Food Division, Government of Bangladesh and others vs MIS M.F Limited, 13 BLD (AD) 145.
Entitlement to practice
Under Article 7(3) of presidents order no. 150 of 1972 an Advocate of the High Court of Bangladesh shall, as from the commencement day, be construed an Advocate entitled to practice before both the Divisions High Court Division and Appellate division of the Bangladesh Supreme Court—Presidents Order No. 150 of 1972, Article—7(3).
Shamsuddin Ahmed, Advocate Vs. The People’s Republic of Bangladesh and another 13 BLD (AD) 105.
Firisti
Firisti is a list showing therein entry of the documents to be adduced as evidence in a particular case and it is not the evidence of the contents of the documents.
The High Court Division committed error of law in relying upon Ext. 1, a certified copy of the firisti, because a firisti is no evidence of the contents of the documents filed.
Chandan Mondal alias Kushal Nath Mondal and ors. Vs. Md. Abdus Samad Talukder and ors, 19 BLD (AD) 242.
Foreclosure
Whether it is a suit for foreclosure or for sale the Court has to pass a preliminary decree in terms of Rule 2(1) of Order XXXIV C.P.C and the Court has no option but to award interest pendent lite to the mortgagee. In a suit for redemption of mortgage the principle is almost the same as a preliminary decree therein has to be passed under Order XXXIV Rule 7 C.P.C.
Sonali Bank Vs. MIs. Beg and Beg Jute Incorporated Ltd. and ors., 17 BLD (AD) 313.
Responsibility of public officers
Public officers performing official duty must act in accordance with law and in good faith. When their action is found to be malafide and arbitrary they become guilty of misconduct.
Dr. Abdul Muyeed being dead his Legal heiress Mrs. Fatema Muyeed and others Vs. People’s Republic of Bangladesh and others, 16 BLD (HCD) 105.
Rule of Prudence
Rule of prudence requires that there should be some independent corroboration of the evidence of interested witnesses so as to inspire confidence in the mind of the court.
Abdul Latif alias Budu and others Vs. The State, 14 BLD (HCD) 94.
Equal Opportunity
The status, remuneration and nature of work of Extra-Muharris and T.C. Muharris being manifestly different, the basis of their classification is very real and not illusory.
The impugned order is not violative of the Equal Opportunity Clause under Article 29(1) of the Constitution—Constitution of Bangladesh, 1972.
Md. Nurul Islam and another Vs. The Secretary, Ministry of Law and Justice and others, 14 BLD (AD) 48.
Equiable relief—Part decree
In a suit for specific performance of a contract a part decree is not ordinarily granted. But under special circumstances it may be permissible to grant a part decree when it is found in consonance with the principle of equity, justice and good conscience—Specific Relief Act, 1877 (I of 1877), Section—42.
Sree Naru Gopal Roy Vs. Parimal Rani Roy and others, 21 BLD (HCD) 282
Ex-parte
The term ‘ex-parte’ is applied in law to a proceeding by one party in the absence of and without notice to the other and carries with it the connotation that a Court or a Judge has proceeded in the absence of the other party when it could have had the other party before it or when it was not presented by law from the hearing the other party before it.
Md. Abu Zafar Miah vs. Abdul Motaleb and another, 19 BLD (HCD) 199.
Bohmong Chief
The office of the Bohmong Chief is a customary office and not an elected or political office on politico-administrative considerations. Both the Government and the Court have to recognise the age-old tradition, custom and usages in the matter of selection of the Bohmong Chief.
If it is found that extraneous considerations have influenced the executive decision the Court has the power to declare the selection non to have been made without lawful authority—Chittagong Hill Tracts Regulation, 1900, Regulatibn—48.
Aung Shwe Prue Chowdhury Vs. Kyaw Sam Prue Chowdhury and others, 18 BLD (AD) 33.
Cause list
Rule 13(1) of the Civil Rules and Orders provides that a daily cause list’ in prescribed Form No. (M) 2 shall be posted in some conspicuous part in every Court-house for the information of the parties, their pleaders and the public.
Note to the said Rule provides that judgments ready for delivery should be notified in the cause list for the day.
Md. Samon Miah Vs. Falani ‘Begum and. others, 15 BLD (AD) 251.
Interest and costs
A plaintiff does not have any statutory right for getting interest on the principal amount under section 34 or to get costs of the suit and appeal under section 35 C.P.C. In such matters the discretion lies with the court—Code of Civil Procedure, 1908 (V of 1908), Sections-34 and 35.
Janata Bank Vs. MIs. Wahid Enterprise (Pvt.) Ltd, 15 BLD (AD) 51.
Cost
Governments case or anybody’s case may not succeed for a variety of reasons but in awarding cost, particularly if it be a very heavy one like in the instant case the Court should give some reason, otherwise it may appear to be an arbitrary or indiscreet exercise of discretion.
Bangladesh Vs. The Chairman, Court of Settlement, First Court and others, 19 BLD (AD) 83.
A court must be a competent authority deriving power from the state to make a judicial decision. A public officer to be court must be empowered to make a judicial decision.
Md. Abu Zafar Miah Vs. Abdul Motaleb ad another, 19 BLD (HCD) 199.
Default
The plain ordinary dictionary meaning of the word ‘default’ is to fail or neglect to act. The petitioner clearly admitted in his petition that he took loan and the same still remains unpaid. Obviously he is a defaulter as he failed to repay the loan.
Md. Maidul Islam Vs. Bangladesh and others, 17 BLD (HCD) 362
Compensation Assessment Roll
Once notification under section 43(2) of the Act is published in the official gazette, such notification is conclusive proof of such publication and the date thereof. Section 72 of the Act bars a civil Court from entertaining any suit in respect of preparation and publication of a Compensation Assessment Roll made under Chapter V or under Chapter VA of the Act—State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), Sections—43(2) and 72.
Bangladesh Vs. Chowdhury Tanbir Ahmed Siddiky, 17BLD (AD) 131.
Fair and reasonableness
Government is always under an obligation to act fairly and reasonably even where the other party has got no legal right in the conventional sense—Constitution of Bangladesh, 1972, Artcle—102.
Bangladesh Soya-Protein Project Ltd.v. Secy. Mini, of Disaster Management, 22 BLD (HCD) 378.
Salami
The practice of receiving salami on condition of making the monthly tenancy transferable and non-ejectable is illegal and it is prohibited by section 10 of the Act. Under section 14 of the Act a tenant can pray for refund of the salami within 6 months of such payment and the landlord is liable to pay fine under section 23 of the said Act—Premises Rent Control Act, 1991 (3 of 1991), Sections—10, 14 and 23
Munshi Amiruddin Ahmed Vs. Begum Shamsun Nahar, 15 BLD (HCD) 119.
Sale
It envisages that earlier sale takes precedence over subsequent sales. A sale deed takes effect from the date of its execution and not from its registration—Transfer of Property Act, 1882(IV of 1882), Section-48.
Abdus Samad Khan and others Vs. Md. Wazed All Fakir and others, 14 BLD (HCD)375
Sale
Vendor’s duty after execution and registration of sale deed
The vendor has a duty to deliver possession of the property after execution and registration of the sale deed.
M/S. Planters (Bangladesh) Ltd . Vs. Md. Abdul Matin Khan and others, 14 BLD (HCD) 71.
Security of service
When Article 99 of the Constitution provides for appointment of a retired Judge in a judicial or a quasi judicial office, some statutory provision should be made for giving him minimum security of service—Constitution of Bangladesh, 1972.
Justice Abdul Ban Sarker Vs. Bangladesh and others, 14 BLD(’AD) 55
Sheristadar
The Sheristadar is not a public officer and his function is not to declare law and to conduct the trial of case between litigants aid is not invested with any authority to determine any cause or question in a court of judicature created by any Act or Statute.
Md. Abu Zafar Miah Vs. Abdul Motaleb and another, 19 BLD (HCD) 199.
Slum dwellers
Their fundamental rights may not be fully honoured because of the limitations on the part of the State but they should not be treated, for any reason, as slaves or chattels, rather as equal human beings and they have got a right to be treated fairly and with dignity, otherwise all commitments made in the sacred Constitution of the People’s Republic, shall prove to be a mere mockery—Constitution of Bangladesh,1972, Article—102
Kalam and others Vs Bangladesh, 21 BLD (HCD) 446.
Sufficient cause
The expression ‘sufficient cause’ occurring in Rule 9(2) of Order 22 of the Code seems to have always been liberally construed so as to advance substantial justice unless there is gross negligence or want of bonafides on the part of the party seeking the relief— Code of Civil Procedure, 1908 (V of 1908), Order XXII Rule 9(2).
Nurul islam Sarker & ors. Vs. Shara Mongala Debi 21 BLD (HCD) 25.
Suit
Simple suit for setting aside the decree without filing a regular suit for cancellation of registered deed obtained through court is not maintainable.
Abdur Rashid and ors. Vs. Abdul Bashir & ors., 20 BLD (AD) 262.
Supremacy of Constitution
It proclaims the supremacy of the constitutional law. Any other law inconsistent withthe Constitution is void to the extent of the inconsistency.
The decision of the Government to send troops to Haiti to participate in the U.N. Sponsored Multinational Force is quite in consonance with the spirit of the Fundamental Principles of State Policy and international commitments and being in accord with chapter-VII of the U.N. Charter, it cannot be said to be an infringement on the Constitution— Constitution of Bangladesh, 1972, Article—7.
M. Saleem Ullah Vs. Bangladesh and another, 15 BLD (HCD) 108
Transparency and accountability
Subsequent change of conditions were kept secret to other participant, as a result of which, requirements of law are not met with and other participants were discriminated and deprived of the opportunity of participation in the tender on equal terms.
Ekushey Television Ltd. & ano. v. Dr. Chowdhury Mahmood Hasan ors., 22 BLD (AD)163
Ref: 4BLT (AD) (1996) 58; 5ODLR 306; 49 DLR(AD)1); 26DLR (AD44.
Transparency
The basic principle of any tender is that if subsequent changes are made regarding the terms and conditions, each and every participant should be informed of such change of terms and conditions. Transparency and accountability must be ensured in all actions by public bodies—Constitution of Bangladesh, 1972, Article—27
Mr. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459
Transparency
The process followed in accepting the proposal of ETV was malafide and not transparent, we are of the view that granting of the licence was not lawful—Constitution of Bangladesh, 1972, Article—145, Wireless Telegraphy Act, 1933(XVII of 1933), Sec tion—5.
Mr. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459.
Vexatious suit
Vexatious civil suits or proceedings are those which are instituted without sufficient ground for the purpose of causing trouble or annoyance to the defendants.
Mrs. Salma Islam Vs. Mrs. Parveen Banu and others, 19 BLD (HCD) 191.
‘Khula’
‘Khula’ is a kind of divorce on mutual agreement between the spouses, the proposal coming from the side of the wife. it is in effect an offer from the wife for her release from the marital tie on -payment of some compensation.
Sheerin Alam Chowdhury Vs. Captain Shamsul Alam Chowdhury, 16 BLD(HCD) 24.
Note- Book
‘Note- Book” means any printed book, containing notes, annotations, explanations, comments, references, answers or solutions to any question of any text-book. Since freedom of speech and expression and freedom of the press mean expression of any idea, restriction on the publication of “Note-Books’ necessarily means restriction on that right of a citizen guaranteed by the Constitution. The Act in its entirity is found to be ultra vires of Article 39(2) of the Constitution and is struck down has unconstitutional—Note -Book (Prohibition) Act, 1980 (Xii of 1980), Section 2, Clause (b).
Dewan Abdul Kader alias Mustafa Kama! and others Vs. Government of Bangladesh and others, 14 BLD (HCD) 418.
Octroi
Company was not liable to octroi in respect of goods which it brought into the local area and which are re-exported—Municipal Committee Assessment and Collection of Octroi Rules, 1961, Rule—2(1)(7).
Meghna Petroleum Marketing Co. ‘Ltd and others. Vs MIs. M. F. Limited and others, 21 BLD (HCD) 404
Payment of interest pendente lit discretion of the Court
Under Rule 7 of Order XXXIV of the Civil Procedure Code the Court is not bound to award the contractual rate of interest while awarding interest pendente lite. It gives the Court a discretion in the matter of fixing rate of interest pendente lite.
Sonali Bank Vs. MIs. Beg and Beg Jute Incorporated Ltd. and ors., 17 BLD (AD) 313.
Pending Action
The word ‘pending action’ means initiating a legal proceeding in Court within the mentioned period and its failure by the insured, forfeits his right to sue under the policy.
Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Lid, 19 BLD (HCD) 439.
Personal Guarantee
Personal guarantee is generally a weak and uncertain security and the creditor more often than not may have to chase a will-o-the wisp. Such guarantees are deprecated and the Court will be well advised not to involve public authorities from running after such personal guarantees.
Commissioner of Customs, Chittagong Vs. Abu Hasnat & ors., 19 BLD (AD) 245.
Principle of implied acceptance
There is nothing on record to indicate that the plaintiffs have waived the requirement of decision, even by implication, or that the plaintiffs would consider it a sufficient acceptance if the earnest money was encashed. Nor can it be said that the encashment of Bank draft conformed to the mode of acceptance indicated by the plaintiffs. So, it is clear that the principle of implied acceptance without notifying the offerer is not at all attracted in the facts of the case. [Per A.T.M. Afzaj,C.J (Majority)]
Bangladesh Muktijoddah Kalyan Trust, represented by the Managing Director Vs Kamal Trading Agency and others, 18 BLD (AD) 99.
Proceeding
The word ‘proceeding” generally means the form and manner of conducting judicial business before a judicial officer.
Younus Miah Vs. Abida Sultana @ çhhanda, 14 BLD (HCD) 291.
“Absence” and ‘Abscond”
The dictionary meaning of the word “absence” Signifies being away from a place or person while the dictionary meaning of the word “abscond” signifies departing secretly or fleeing from the law. The two words cannot be equated without doing violence to their normal connotations.
Bangladesh Vs. Md. Lokman Patwari and another, 14BLD(AD)155
Ref: 1981 BLD(AD)-Cited.
Protected legislation
‘Law’ as defined in Article 152 of the Constitution includes, among other things, rules and regulations made under any law. The Bangladesh Bank (Staff) Regulations having been made under the Bangladesh Bank Order, 1972 are protected legislations and as such cannot be struck down on the ground that they offend the concept of equality before the law—Constitution of Bangladesh, 1972, Articles-27 and 152.
Bangladesh Bank and others Vs. Mohammad Abdul Mannan, 14 BLD (AD) 117
Registration
A transfer, is incomplete without entry into the volume under section 60 of the Registration Act—Registration Act, 1908 (XVI of 1908), Section-60.
Abdul Majid Vs. Akhil Chandra Sengupta and others, 14 BLD (HCD) 79.
Relief
It is now well-settled that each suit seeking relief within the scope of section 42 must be decided on its own merits and its own peculiar circumstances and that no hard and fast rule can be laid down for all cases—Specific Relief Act, 1877 (I of 1877), Section—42.
Mirpur Mazar Co-operative Market Society Ltd. Vs. Secretary, Ministry of Works and others, 19 BLD (HCD) 164.
Relief
Plaintiff being in possession seeking for declaration he need not seek any further relief as contemplated under proviso to section 42 of the Act Specific Relief Act, 1877 (I of 1877), Section—42.
Ali Akbar Khan Vs. Gurudas Mondal and others, 19 BLD (HCD) 122.
Formal defects
Formal defects or ‘other sufficient grounds” as contemp1atd by Order 23, Rules I and 2 C.P.C. should be liberally construed. Withdrawal of a suit with permission to sue afresh may be allowed even at the revisional stage.
Abdul Wahed Mia Vs. Saira Khatun, 14 BLD (HCD) 83.
Interim Order
In the absence of any positive assertion by the petitioner that he had no knowledge about the applications filed by the respondents for vacating the order of stay granted earlier, the impugned order vacating the order of stay cannot be said to be illegal only because it was passed in his absence, particularly when it is found that it was passed for the benefit of the cultivators for whom the scheme existed.
Mohd. Molai Miah Vs. The Secretary, Ministry of Agriculture, Government of Bangladesh and others, 17 BLD (AD) 221.
Interlocutory Findings
Prima facie findings made in interlocutory orders are not binding upon the trial Court which will decide the matter before him on taking evidence, without being influenced by the prima facie findings and observations made in interlocutory matters.
Universal Pharmaceutical Ltd. and another Vs. Social Marketing Company, 17 BLD (AD) 298.
Rent Receipts
Rent Receipts though not documents of title are important piece of evidence of possession and may be used as co-lateral evidences of title since possession generally follows title.
Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.
Ref: Erfàn Ali Vs. Joynal Abedin and ors. 35DLR(AD)2 16—relied
Repeal of enactment
‘It provides that the right that accrued to a person under an enactment subsists even after the expiry of the enactment when it is repealed by another enactment. The Emergency Requisition of Property Act having not been repealed by any enactment, the petitioner is not entitled to derive the benefit of section 8B of the Act—General Clauses Act, 1897 (X of 1897), Section-6.
Shah Ekramur Rahman Vs. Secretary, Ministry of Land, Dhaka and others, 14 BLD (HCD) 538.
Resignation from parliament
Articles 70 as referred to in Article 66(4) does not stipulate nor require that the resignation from a party should be in writing. Resignation by conduct or otherwise against the party disciplines and dictates is also envisaged under these Articles—Constitution of Bangladesh, 1972, Articles—66(4) and 70.
Khondker Delwar Hossain Vs. The Speaker, Bangladesh Jatiyo Shangsad, 19 BLD(HCD) 45
Irreparable injury
Irreparable injury means only that injury which cannot be adequately compensated. Loss measurable in terms of money is not irreparable loss and injury.
Sarhind Garments Ltd. Vs. Glory Truth Industries Ltd. and another, 17 BLD (HCD) 204.
Judgment and Order
‘Judgment’ means the statement given by the Judge of the grounds of a decree or order. ‘Order’ means the formal expression of any decision of a civil court which is not a decree—Code of Civil Procedure, 1908 (V of 1908), Section—2(9)( 14).
Sirajul Islam Chowdhury Trawlers Ltd. Vs. Sirajul Islam Chowdhury, 20 BLD (HCD) 347.
Proviso
Proviso to section 25 of the Act provides that no complaint shall lie against the order of termination of a worker if the same was not made for his trade union activities. There is nothing in the proviso that termination should be of an officer of the trade union and not of any member. In the instant case respondent No. 2 by oral and documentary evidence of substantiated his claim that his service was terminated by his trade union activities—Employment of Labour (Standing Order) Act, 1965(VIII of 1965), Section—25.
M/s A R Howlader Jute Mills Ltd. Vs The Chairman, Labour Court, 21 BLD (HCD) 6
Labour
Section 25(1)(a) of the Act provides that the worker concerned shall submit his grievance to his employer in writing by registered post within fifteen (15) days of the occurrence of the cause of such grievance and the employer shall within fifteen (15) days of receipt of such grievance, enquire into the matter,. give the worker concerned an opportunity of being heard and communicate his decision, in writing, to the said worker—Employment of Labour (Standing Order) Act, 1965(VIII of 1965), Section—25
Karnaphuli Fertilizer Co. Ltd. Vs. The Chairman, Labour Court, 21 BLD (HCD)319
Lawyer
Lawyer engaged by a litigant public has no right to absent himself from a court when the case of his client comes up for hearing. It is the bounden duty on the part of the learned lawyer to attend to that case in the court or he can make such other arrangement for the proper representation of the case of his client in the court. The learned lawyer owes a duty not only to his client but also to the court.
A learned lawyer owes a sacred duty to the society not to encourage shady cases by which courts might be over burdened denying justice to the genuine litigants. The learned Members of the Bar as the officers of the Court and also as the companion of the cause of justice may have valuable contribution to the cause of justice if they screen out frivolous and fraudulent litigations and refuse to accept them saving the courts from being over flooded with frivolous, fraudulent and misconceived cases. It is expected that the co-operation of the Bar will be readily forthcoming in this regard.
Amirunnessa and others Vs Abdul Mannan and others, 20 BLD (HCD) 14.
Lease
Lease of immovable property is created under Section 105 of the Transfer of Property Act. Without serving the statutory notice upon the tenant as contemplated by Section 106 of the Act, no suit for ejectment is maintainable—Transfer of Property Act, 1882 (IV of 1882), Sections -105 and 106.
Abdul Aziz Vs. Md. Abdul Majid, 14 BLD (AD) 147.
Lessee
Lessee is not entitled to hold over after the expiry of the period of lease– Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966, Section—4.
Farid Miah Vs. Kutubuddin being dead his heirs: Shanu Begum and others, 14 BLD (AD) 26.
Malice
In an action based on malicious abuse of civil processes, it is obligatory on the part of the plaintiff to allege and prove malice, and also that the previous proceedings were undertaken by the defendant without reasonable and probable cause, apart from showing that those terminated in his favour.
Mrs. Salma Islam Vs. Mrs. Parvin Banu and others, 19 BLD (AD) 162.
Lis pendens
The doctrine of us pendens is applicable to pre-emption proceedings and as such any reconveyance made during the pendency of a pre-emption case is hit by section 52 of the T.P. Act—Transfer of Property Act, 1882 (IV of 1882), Section -52.
Khorshed Ali and others Vs. Aftabuddin and others, 16 BLD(’HGD.)l
Loco Parente
University authority stands in the position of Loco Parentes to its students and is not required to record evidence against delinquent students opportunity to cross-examine such witnesses who deposed against them.
Subasish Das(Bobby) Vs Bangladesh University of Engineering and Technology, Dhaka and others, 19BLD(HCD) 559
“Matters” and “Suit”
The term “Matters” has a wider meaning than the term “suit’. The former includes civil suits as well as criminal and quasi-criminal proceedings while the latter is confined to civil cases only.
Meher Negar Vs. Md. Mojibur Rahman, 14 BLD (HCD) 467.
Meters
Section 26 of the Act provides that in the absence of an agreement to the contrary the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of correct meter and the licensee shall if required by the consumer, cause the consumer to be supplied with such a meter—Electricity Act, 1910 (IX of 1910), Section—26.
Executive Engineer Sales and Distribution Division—I Vs. Messers Purba Espat Limited, 18 BLD (HCD) 627.
‘Holding over’ and ‘Statutory tenants’
A tenant ‘holding over’ is a creature of the Transfer of Property Act and the acceptance of his position as a tenant ‘holding over’ depends upon the sweet will of the landlord, in the absence of any statutory name in the Premises Rent control Ordinance, the Courts have designated those tenants as ‘statutory tenants who continue in possession after the termination of the tenancy and pay rent regularly to the landIord.
Abdul Aziz Vs. Md. Abdul Majid, 14 BLD (AD) 147.
Ref: 44DLR(AD) 1—Cited.
Contract of service’ and ‘contract for service’
If an employed person is an employee of his employer for remuneration he is under a contract of service. But if such a person is an independent contractor under the employer, he is under a contract for service—Copyright Ordinance, 1962 (XXXV. of 1962), Sections—2 and 13(C).
Mrs. Suraiya Rahman Vs. Skill Development for Underprivileged Women, represented by its Project Directors, and others, 17 BLD (HCD) 284.
Equity
In the absence of any order of stay granted by the appellate Court, the action of the Deputy Commissioner ordering for the reinstatement of respondent No. 2 to his post is by exercise of magisterial power, which is not expressly sanctioned by any statute. In the acts of the case, the action of Deputy Commissioner cannot be termed as illegal on the ground of equity as the power was not exercised in perpetration of any illegality, rather it was aimed at establishing the legal right of respondent No. 2.
Gazi Shamsul Hoque Vs. Deputy Commissioner, Dhaka and ano, 18 BLD (AD) 8.
Irregularity and illegality
Mere omission to sign the deposition sheet is just a defect or irregularity in a proceeding. But the merits of the case or the jurisdiction of the Court are not affected by the said omission. Mere non-signing of the deposition sheets do not amount any illegality—Code of Civil Procedure, 1908( V of 1908), Section—99.
Md. Meser Ali Vs. Md. Khaybar Au, 18 BLD (HCD) 92.
Audi Alteram Partem
Principle of natural justice requires that a• person can be removed from his post without affording him an opportunity of being heard. But in the instant case the petitioner was removed from the post of Vice Chancellor of the Rajshahi University under compelling circumstances but at the same time he was reposted as a professor of the department of Chemistry. His removal being considered necessary in the greater interest of the institution itself, want of show cause notice was not adjudged essential in the case.
Professor Dr. Md. Yusuf Ali Vs. The Chancellor of Rajshahi University, Rajshahi and others, 18 BLD (HCD) 1.
‘per incuriam’
The word ‘per incuriam’ is a Latin expression. It means through inadvertence. A decision can be said generally to be given ‘per incuriam’ when the Court had acted in ignorance of a previous decision of its own or when the High Court Division had acted in ignorance of a decision of the Appellate Division.
Bangladesh Agricultural Development Corporation Vs. Abdul Barek Dewan and ors., 19 BLD (AD) 106.
Making out a third case
In the plaint no case was made out that the suit property was a vested property, the learned Subordinate Judge while deciding the suit did not also record any such finding. Inspite of the absence of such an averment made in the plaint and no evidence led to substantiate it, the learned Judges of the High Court Division held that the suit property was a vested property by making out a third case. The High Court Division evidently erred in law in doing so while reversing the judgment of the trial court.
Md. Shamsul Huda being dead his heirs; Hafez Mohammad Ismail and ors. Vs. Bangladesh and ors., 20 BLD (AD) 48.
Ekrarnama
Ekrarnama is not required to be attested under the law.
Wahidha Begum Vs. Tajul Islam, 20 BLD (HCD) 431.
‘See’ and ‘verify’
There is no scope for extending the meaning of the words ‘see’ and ‘verify’ used in regulation 80 to mean “examine” the worth of the answer script.
Chairman Secondary & higher Secondary Education Board, Rajshahi and another Vs Arifur Rahman, 20 BLD (AD) 247.
Insured
“Insured” means a person, natural or legal who has been insured by an insurer against some risks or eventualities.
M/s Janata Insurance Vs. MIs. Islam Steel Mills Ltd., 21 BLD (HCD) 96.
Ref: (1996) 6SCC 428; 46DLR 39; 1906 AC 336; 1924 AC 431; (1939) 4 All ER 601; (1967)2 All ER 1197—Cited.
“When money talks the judiciary must not balk.”
when money talks the judiciary must not balk. Syndicated bridge financing the Ekushey Television by some foreign and local banks and the investment by the USA finance company is neither a contribution to philanthropy nor an effort to do something for the noble cause of free media. It is a simple case of investment, and like every investment the investment, in ETV has its own risk. The third party rights exist and fall with the Ekushey Television, since their interests merged with that of ETV. The substantive legal principle in this regard is that every person is subject to the jurisdiction of law. The foreign investors in ETV are no exception to this principle—Constitution of Bangladesh, 1972, Article—27.
Ekushey Television Ltd. & ano. v. Dr. Chowdhury Mahmood Hasan & ors., 22 BLD (AD)163.
Personal service
Even though by a vendor’s agreement Rupali Bank Limited agreed to follow the Service Regulations when it was a nationalised bank, the plaintiff is not entitled to get a decree for mandatory injunction in view of the bar against granting injunction for breaches of contract for personal service— Specific Relief Act 1877(1 of 1877), Section—56(e).
Rupali Bank Limited v. Haji Md. Arab Ali and others, 22 BLD (AD) 13.
Void decree need not avoided
A person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. When such person is not a party to such decree, he does need to get the decree set aside or cancelled—Specific Relief Act, 1877 (I of 1877), Sections—39 and 42
Abul Kashem Howlader v. Sultan Ahmed and others, 22 BLD (HCD) 606
Control and Management
The control and management is not carrying on of day to day business by servants, employees or argents. The real test is to be applied is where is the controlling or directing power functions or to put it in a different language where there is always a seat of power, or the head or brain and what has got to be ascertained is where is this seat of power or the head and brain.
James Finlay PLC. v. Commissioner of Income Tax, 22 BLD (HCD) 556.
Ref: In unit construction company Ltd. Vs. Ballock (Inspector of Taxes) (1961) 42 I.T.R. 340
WORKER
Worker
The term ‘worker” as defined in section 2(V) of the Act contemplates not only a person employed in the work of a commercial or industrial establishment for productive purposes but also it extends to a person who does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment be express or implied—Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Section -2(V)
The Managing Director, Rupali Bank Ltd. Vs. Md. Nazrul Islam Patwari and others, 15 BLD(AD) 169.
Temporary worker and permanent worker
Sections 2(s) of the Act defines a temporary worker as a worker who has been engaged for a work which is essentially temporary in nature and is likely to be finished within a limited period while Section 2(m) of the Act defines a permanent worker as a worker who has been engaged on a permanent basis or who has satisfactorily completed the period of his probation.
Section 19 (3) of the Act empowers the employers to terminate the employment of a temporary worker without any notice for termination of his job—Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Sections—2(s) and (m) and 19(3).
Md. Ibrahim Shaikh Vs. Chairman, Labour Court, Khulna and others, 15 BLD (HCD) 647
Worker
An Assistant Cashier of Sonali Bank is a worker as defined by the Employment of Labour (Standing Orders) Act, 1965. His remedy against any grievance in respect of his service therefore lies before the Labour Court and not before the Civil Court—Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Sections—2( 1)(b).
Sonali Bank and another Vs. Chandon Kumar Nandi; 15 BLD (HCD) 249.
Worker
A godown keeper’ of Sonali Bank is a ‘worker’ within the meaning of a ‘worker’ as defined in the Employment of Labour (Standing Orders) Act, 1965. Consequently his remedy against termination of his service lies in the Labour Court and not in the civil Court—Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Sections— 2(1)(b).
Managing Director, Sonali Bank and others Vs. Md. Jahangir Kabir Molla and another, 15 BLD (HCD) 575.
Worker
As the petitioner was a steno typist under the Bangladesh Power Development Board he comes under the definition of “worker” as defined in the Employment of Labour (Standing Orders) Act, 1965 and as such Section 17(1) of the said Act is applicable to him. The impugned dismissal order of the petitioner being passed under the said Act by initiating a disciplinary proceeding against him under section 18 of the Act, the proper remedy for the petitioner lies before the Labour Court and not before the High Court Division under writ jurisdiction— Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Sections -2(V) and 17 (1), Bangladesh Power Development Board (Employees) Service Rules, 1982, Rule-23(6).
Md. Badsha Miah Vs. Bangladesh and others, 16 BLD (HCD) 591.
Worker
Section 58 of the Act makes it clear that a worker is entitled to allowance at the rate of twice his ordinary rate of wages where he works in a factory for. more than nine hours in any day or more than forty-eight hours in any day or more than forty-eight hours in any week. In other words if the Management and the worker reach a settlement that an adult worker shall work in a factory for 44¼ hours in any week, even then his overtime entitlement at the rate of twice his ordinary rate of wages will not be due until he works for more than 48 hours in any week—Factories Act, 1965 (IV of 1965), Section—58
The General Manager, Jamuna Oil Company Ltd.Vs. The Chairman, Labour Court, Chittagong Division and others, 19 BLD (AD) 144.
Worker
Mere designation is not sufficient to indicate where a person is a ‘worker’ or an ‘employer’, but it is the nature of the work showing extent of his authority which determines whether he is a worker or employer—Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Section—2(b).
M/s. Pioneer Garments Ltd. Vs. Md. Abul Kalam Azad, 20 BLD (AD) 62.
Worker
A worker is a person who enters into a contract of service under the management and does not include a person who works under the control and supervision of a contractor, or who is working in the premises of a certain establishment– Industrial Relations Ordinance 1969 (Ordinance XXII of 1969), Section—2(XX VIII)
Karnaphuli Paper Mills Workers Union v. Karnaphuli Paper Mills Ltd. and another, 22 BLD (AD) 33.
WRIT JURISDICTION
Habeas Corpus
A petition hi the nature of habeas corpus for the custody of a minor, would be equally competent without sending the petitioner before the Family Court or under Guardians and Words Act—Constitution of Bangladesh, 1972, Article 102 (2)(b).
Ayesha Khanam and others Vs. Major Sabbir Ahmed and others, 13 BLD (HCD) 186.
Latches and delay in writ petition.
Extra-ordinary remedy provided under the Article 102 of the constitution is for speedy relief and is to be sought immediately after the grievance is caused. Latches and delays disentitles one to such remedy.—Constitution of Bangladesh, 1972, Article 102.
Sarwarjan Bhuiyan and others Vs. The Government of the People’s Republic of Bangladesh and others, 13 BLD (HCD) 209.
Writ Jurisdiction – Right out of a contract
Personal right arising out of a contract, would be subject matter of mandamus unless the authority, acting on a contract acted malafide in refusing a right arising out of a contract..
Shafiq Ahmed Vs. Chairman, Bangladesh Chemical Industries Corporation and others, 13 BLD (HCD) 68.
Writ Jurisdiction—Habeas Corpus
The provisions of the Article, 102 of the constitution is very wide in nature as it provided that any person not an aggrieved person, can take into the notice of the court that somebody is illegally delivered by any person and pray for declaration that is so detained illegally and without lawful authority and the court shall after being satisfied direct the persons to be set at liberty at once— Constitution of Bangladesh. 1972, Article 102.(2)(b).
Ayesha Khanam and others Vs. Major Sabbir Ahmed and others, 13 BLD (HCD) 186.
Writ Jurisdiction
In view of the fact that the Dhaka City Corporation has already taken steps for implementation of the directions of the Election Commission and the learned Attorney General assured that the Govt. will also take all necessary steps to implement the said directions of the Election Commission, the. High Court Division did not consider further direction necessary in this regard—Constitution of Bangladesh, 1972, Article-126 and The Dhaka City Corporation Rules, 1983 Rule -3.
Bangladesh Environmental Lawyers Association Vs. The Election Commission and others, 14 BLD (HCD) 211.
Writ Jurisdiction
In the absence of any provision for appeal against an order of the District Co-operative Officer under Section 18(3)(4) of the Ordinance, the High Court Division was wrong in not disposing of the Writ Petition on merit and in requiring the appellant to prefer a. further appeal to the District Judge when the first appeal itself was incompetent—Constitution of Bangladesh, 1972, Article 102.
Nani Gopal Barman Vs. Bangladesh and Others, 14 BLD (AD) 52.
Writ Jurisdiction
Review application before Martial Law Authority
A writ petition challenging an order of the Chief Martial Law administrator filed after the lifting of the Martial Law is maintainable.
A review application not disposed of by the Chief Martial Law Administrator is to be disposed of, after the lifting of Martial Law, by the President—Constitution of Bangladesh, 1972, Article 102.
Government of Bangladesh, represented by the Secretary, Ministry of Posts, Telegraphs and Telephones Vs. Sheikh Md. Ali Asgar and others, 14 BLD(AD) 219
Writ Jurisdiction
A Navy Officer does not hold any constitutional office and as such Art. 147 of the Constitution is not applicable to him.
Rear Admiral A.A. Mustafa Vs. Bangladesh, 14 BLD (AD) 16.
Writ Jurisdiction
Writ Jurisdiction cannot be invoked to determine the questions as to whether the suit was barred by limitation and the impugned decree by the Artha Rin Adalat was in excess of the petitioner’s liability—Constitution of Bangladesh, 1972, Article 102.
Md. Zahirul Islam Vs. National Bank Limited and others, 14 BLD (AD) 60.
Writ Jurisdiction
Ordinarily the High Court Division under Article 102 of the Constitution does not interfere where an equally effective and efficacious remedy is available to the petitioner. But the Court can interfere in exercise of power under, Article 102 of the Constitution if the circumstances of a case demand such interference in the interest of justice— Constitution of Bangladesh, 1972, Articles— 102.
Mrs. Jebon Nahar and ors. Vs. Bangladesh and others, 18 BLD (HCD) 141.
Writ Jurisdiction—Scope of Writ
The legality of acts done or proceedings taken by Government functionaries in connection with the affairs of the Republic can be questioned in a writ petition under Article 102 of the Constitution while acts done or proceedings taken by them not in connection with the affairs of the republic but in their private capacity fall outside the purview ‘of the writ jurisdiction of the High Court Division—Constitution of Bangladesh, 1972, Article—102(2)(I)(ii).
Principal Abdul Ahad Chowdhury Vs. Habibur Rahman and ors, 15 BLD (HCD) 1.
Writ Jurisdiction—Interim Order
Granting of an interim order by the High Court Division is not an absolute plenary power and t is totally prohibited in relation to certain laws. The High Court Division may pass an interim order under clause(l) of sub clause(a) of clause (2) of Article 102 of the Constitution under certain well-defined constraints—Constitution of Bangladesh, 1972, Article—102(3)(4).
The Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury and another, 17 BLD (AD) 270.
Writ Jurisdiction
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 writ petition is not maintainable. [Per Kazi Ebadul Hoque J, agreeing with Latifur Rahman, C.J.]— Customs Act, 1969 (IV of 1969), Section— 33 193 and 194.
Bangladesh and others Vs Mizanur Rahman, 20 BLD (AD) 212.
Writ Jurisdiction—Maintainability of
The High Court Division exercising power under Article 102 of the Constitution can interfere with the findings of a tribunal of facts only when it can be shown that the tribunal had acted malafide or without jurisdiction or in violation any principle of natural justice or arrived at a finding upon no evidence or without considering any material evidence/fact materially affecting the impugned decision—Constitution of Bangladesh, 1972, Article —102.
Govt. of Bangladesh Vs. Md. Jalil and others, 16 BLD (AD) 21.
Writ Jurisdiction – Legal right
In the absence of any legal right judicially enforceable in favour of the petitioner and in the absence of any material to show that the authority concerned acted arbitrarily and unfairly and resorted to discrimination, the instant writ petition seeking a direction upon the respondents to accord permission for carrying on the business of insurance is not maintainable in law—Constitution of Bangladesh, 1972, Articles—102.
N. A. Choudhury Vs. Controller of Insurance and others, 18 BLD (HCD) 199.
Writ Jurisdiction
When the Court is in seisin of a matter involving a question of right, title and interest relating to any immovable property, the Bureau of Anti-corruption has no jurisdiction or authority to hold any inquiry under Articles 31 and 50 of Anti-Corruption Manual, either suo motu or upon an application of any person—the Anti-Corruption may, however, inquire in to a specific case under an order of the court, otherwise not– Anti-Corruption Act 1957 (Act XXVI of 1957), Section— 3(2), Anti-Corruption Manual, Articles—31 and 50
Humayun Majid v. Bangladesh Bureau of Anti-corruption, 21 BLD (HCD) 551.
Writ Jurisdiction
The offences listed in the schedule to the Act being cognizable offences, the enquiry into an investigation of a complaint or information without recording any First Information Report is permissible in law. Therefore, officers of the Bureau of Anti- Corruption are empowered to serve notices under sections 94 and 160 of the Code of Criminal Procedure and to exercise powers thereunder—Anti-Corruption Act 1957 (XXVI of 1957), Section—3(2).
Abu Siddique v. Government of the People ‘s Republic of Bangladesh, represented by the Secretary, Ministry of Defence and others, 22 BLD(AD) 160
Writ Jurisdiction
Notices issued in connection with an enquiry under section 3 of the Anti-corruption Act,1957 as regards information received against the petitioners is not violative of article 35(4) of the constitution, as the petitioners are not accused of any offence— Constitution of Bangladesh, 1972, Article— 35(4)
Abu Siddique vs. Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Defence and others, 22 BLD (AD) 160.
Writ Jurisdiction – Any person
The word ‘any person, appearing in Article 102 of the Constitution includes a member of the Parliament as he performs functions in connection with the affairs of the Republic. A writ of quo warranto is thus maintainable against the Respondents who are members of the Parliament—Constitution of Bangladesh, 1972, Article—102.
Md. Anwar Hossain Vs. The Speaker of Bangladesh and others, 15 BLD (HCD) 344.
Writ Jurisdiction – Efficacious remedy
Provision for deposit of the assessed duty or penalty imposed for maintaining an appeal and power of the appellate authority to exempt the appellant from depositing the same under section 194 of the Act has already been noticed. In view of said provision it cannot be said that an appeal against an order of assessment of custom duty or imposition of fine is not an equally efficacious remedy. Unless and until an appeal is filed against an order of assessment of customs duty or imposition of fine and prayer made for exemption from depositing the duty demanded or fine imposed showing good reason for the same and such prayer is unreasonably or arbitrarily rejected, it cannot be said that the remedy of appeal provided under the Act is not equally efficacious remedy entitling the aggrieved person to seek remedy by invoking writ jurisdiction.[Per Kazi Ebadul Hoque J, agreeing with Latifur Rahman, C.J.1—Customs Act, 1969 (IV of 1969), Section—194.
Bangladesh and others Vs Mizanur Rahman, 20 BLD (AD) 212.
Writ Jurisdiction—Public Auction
In the interest of public revenue the authority concerned can hold any number of auction if it thinks that the property meant for auction did not fetch a proper value in the tender or that there is a possibility of getting a higher value in a fresh auction.
Md. Jashimuddin Vs. Govt. of Bangladesh and others, 17 BLD (AD) 227.
Writ Jurisdiction—Auction
Rule 10(4A) provides that notwithstanding anything contained in sub-Rule (4), if the building under auction is under the possession of a duly authorised person, it shall, subject to the terms and conditions specified in the auction notice, be offered to him at a price quoted by the highest bidder in the auction—Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules, 1972 (amended vide gazette notification dated November, 1987), Rule—10(4A).
MIs United Commercial Bank Ltd Vs MIs Rahim Afrooz Batteries Ltd and ors. 20 BLD (HCD) 296.
Writ Jurisdiction—Authority of RAJUK
In regulating orderly development of the Metropolitan City of Dhaka, RAJUK has got no right to transgress upon the rights of the citizens—Building Construction Act, 1952 (II of 1953), Sections—3B and 9.
A. Rouf Chowdhury Vs. Bangladesh and others, 20 BLD (HCD) 537.
Writ Jurisdiction—Authority of RAJUK
Rajuk was never given any power to remove and/or demolish any construction on the ground of height under the provisions of section 3B of the Act—Building Construction Act, 1952 (II of 1953), Sections—3B.
A. Rouf Chowdhury Vs. Bangladesh and others, 20 BLD (HCD) 537.
Writ Jurisdiction—Authority of RAJUK
The order for removal of the construction first asked by the respondent No. 3 himself and then issued, in the name of the appellate authority was not passed according to the provisions of section 3B of the Act— Building Construction Act, 1952 (II of 1953), Sections—3B.
A. Rouf Chowdhury Vs. Bangladesh and others, 20 BLD (HCD) 537.
Writ Jurisdiction
Authority to stop unloading
The Ministry of Agriculture being responsible for controlling the import and distribution of fertilizer under the laws, had the authority to issue direction to another department of the government namely the Customs Authority to stop unloading of the fertilizer from the vessel. Although the Custom authority did not find fault with other shipping documents they are bound to follow the direction of the sovereign authority— Fertilizer Control Order, 1999, Article— 5(1).
M/s Bulk Trade International v. The Commissioner, Customs & ors 22 BLD (HCD) 598
Writ Jurisdiction
Under section 45(2) of the Act, Bangladesh Bank has discretion to modify its’ own order or circular on a representation made to it or on its own motion—Bank Companies Act, 1994 (XIV of 1994), Sections—45(2).
K M Zakir Hossain Vs. Bangladesh Bank, 21 BLD (HCD) 48
Writ Jurisdiction
Bangladesh Bank has power to give directions under 45(1) (d) of the Act to secure proper management of any bank company generally—Bank Companies Act, 1994 (XIV of 1994), Section—45(1)(d).
K M Zakir Hossain Vs. Bangladesh Bank, 21 BLD (HCD) 48.
Writ jurisdiction
Banking
The High Court Division simply does not have the jurisdiction to decide the validity of a notice under section 17 of the Act upon adjudication of the documents of both sides. The offending director may have a very good case to show that he has no personal liability to the lender Bank at all. But it is not for the High Court Division to determine or even hint at the offending director’s personal liability or otherwise,. except on admission, when the only us before it is whether the notice under section 17 of the Act is legal or not— Constitution of Bangladesh, 1972, Article— 102, Bank Company Act, 1991(X1V of 1991), Section—17.
Md. Saiful Alam Vs. Bangladesh Bank and others, 19 BLD (AD) 249.
Writ Jurisdiction
Section 2 of the Banking Companies Ordinance makes it crystal clear that unless “expressly provided” in the ordinance, the provision of the ordinance shall be in addition to and in derogation of the Companies Act, 1913.
Section 86G of the Companies Act makes specific provision for the removal of a Director.
In view of the specific provision for the removal of the Director under the Companies Act and in view of the fact that Section 41 of the Banking Companies Ordinance, 1962 does not expressly make any provision for removal of Director of a Banking Company, Bangladesh Bank does not have any power to remove the Director of a Bank—Banking Companies Ordinance, 1962, Sections-2 and 41,. Companies Act, 1913 (VII of 1913), Section – 86G.
Khondker Mahtabuddin Ahmed Vs. Bangladesh Bank and others, 14 BLD (HCD) 365.
Writ Jurisdiction
Confession of Children
The question of medical examination of the petitioner does not arise when the trial court came to a conclusive decision about the age of petitioner as being 14-15 years of age. The 9onfession made by a child is of no legal effect. The child had no maturity to understand the consequence of such confessional statement, which cannot be voluntary— Children Act 1974 (XXXIX of 1974), Section—5.
Bangladesh Legal Aid and Services Trust and another v. Bangladesh & ors., 22 BLD (HCD) 206
Writ Jurisdiction
Constitutional Continuity
Paragraph 19 of the Fourth Schedule of the Constitution—The Constitution (Seventh Amendment) Act, 1986—The object of paragraphs 3A and 18 is to maintain the constitutional continuity of those law after the revival of the Constitution till they are repealed, altered or amended by the competent authority. If paragraphs 3A and 18 were not incorporated in the Constitution then there would be utter confusion in the field of constitutional dispensation and law. There would be discontinuity of constitutional dispensation and the period in issue would remain outside the Constitution. Martial Law having ceased, the operation of ordinary civil law continued. The Parliament is the supreme law making authority and the Parliament exercising its plenary power can alter, amend or repeal the law validated and protected under paragraph 19, which has been added in the Fourth Schedule of the Constitution by the Constitution Seventh Amendment) Act, 1986.
A V B I Siddiqui Vs. Bangladesh, 21 BLD (HCD) 75.
Constitutional entity
Political party has been recognised as a constitutional entity for the first time in the Constitution of Bangladesh and indirectly in Article 70 the Constitution of a political party is also recognised by use of the words “resigns from the party”—Constitution of Bangladesh, 1972, Article—70
Secretary, Parliament Secretariat Vs. Mr. Khandker Delwar Hossain and others, 19 BLD (AD) 276.
Constitutional Law
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—Constitution of Bangladesh, 1972, Article—I 16.
Government of Bangladesh Vs. Md Idrisur Rahman, Advocate and others, 19 BLD (AD) 203.
Constitutional privilege
The Parliament comprises of members, both of the ruling party as well as of the opposition parties. The Constitution makes the Prime Minister responsible and accountable before the Parliament for his/her actions/omissions and public statements. The aggrieved members of the Parliament could have more opportunities and better scope to hold their leader to account in the Parliament for the disputed statements, But they preferred to abdicate their constitutional privilege and submitted before us to punish their leader for infraction of the Constitution. Such novel step is unprecedented in the constitutional history.
Mr. Mainul Hosein & ors. Vs. Ms Sheik Hasina Wazed, 21 BLD (HCD) 109.
Writ Jurisdiction—Constitutional protection
Article 135 of the Constitution speaks of constitutional protection of all persons holding civil posts in the Service of the Republic. The members of judicial service and magistrates exercising judicial functions are in the Service of the Republic holding civil posts and as such they cannot be deprived of this constitutional protection. Article 135 of the Constitution deals with dismissal, removal or reduction in rank of a person who holds a civil post. The members of judicial service and magistrates exercising judicial functions are no doubt holding civil posts and public officers as they get emolument and render service to the Republic. [Per Latifur Rahman,J agreeing with Mustafa Kamal, C.J]
Secretary, Ministry of Finance Vs. Mr. Md. Masdar Hossain, 20 BLD (AD) 104,
Writ Jurisdiction
Constitutionality of the Act and presumption following it
There is always a presumption in favour of the constitutionality of an enactment. In ascertaining the constitutionality or otherwise of a questioned enactment, the background of the enactment and the surrounding circumstances in which it was brought about have to be taken into consideration.
A text-book is not an expression of original ideas or opinion or comment with regard to contents of a Text-book but it is merely a presentation of the same Text book couched in a different manner and form. The impugned Act having simply imposed reasonable restrictions against the possibility of an infringement on the copy right, it cannot be called unconstitutional. The allegation of violation of freedom of speech and expressions by the defendants in the, circumstances of the case is unfounded. [Per A.T.M. Afzal, C.J.]— Constitution of Bangladesh, 1972, Article— 39(2), Note Book (Prohibition) Act, 1980 (XII of 1980).
Bangladesh National Curriculum and Text Book Board Vs. A.M. Shamsuddin and others, 17BLD (AD) 94.
Writ Jurisdiction
This Court is oath-bound to protect the constitution including the fundamental rights of the citizens and is obliged to enforce the same even in the absence of any appropriate legislation—Constitution of Bangladesh, 1972, Articles—31 and 32
Professor Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
Court in the seisin of a matter
When the Court is in the seisin of the matter, it is not proper for the Court to allow the Government “to decide the matter according to law”.
Basarat Howlader, Secretary Gutapara Matshajibi Samabaya Samity Ltd. Vs. Kuramara Matshajibi Samabaya Samity Ltd. and others, 14 BLD (AD) 1.
Writ Jurisdiction – Courts order
A person who is aware of an order of the Court is bound to obey the same even though he was not a party to that when it affects the result of the earlier order—Constitution of Bangladesh. 1972,Article—111.
Bangladesh Bank and others Vs. Zafar Ahmed Chowdhury, Chairman, United Commercial Bank Limited and another, 21 BLD (AD) 63.
Writ Jurisdiction – Defaulter in payment of loan
If a director of a Bank or a relation of such a director is a defaulter in respect of his personal or corporate loan then he or the enterprise in which he has vested interest is not entitled to any reschedulement of loan. A “No objection” in that case by the Bangladesh Bank for reschedulement will be illegal— Bank Companies Act, 1994 (XIV of 1994), Sections—29 and 45
K M Zakir Hossain Vs. Bangladesh Bank, 21 BLD (HCD) 48.
Writ Jurisdiction
Non-consideration of material facts by the Labour Court even in an exparte judgment exposes it to challenge in a Writ Petition— Constitution of Bangladesh, 1972, Article- 102.
Chittagong Chemical Complex Vs. The Chairman, Labour Court and another, 14 BLD (AD) 67.
Writ Jurisdiction
The propriety of a resolution passed by the Managing Committee of a Nongovernment school cannot be called in question in writ jurisdiction but the required approval given to the said resolution by the Board is amenable to such jurisdiction— Constitution of Bangladesh, 1972, Article- 102.
Din Mohammad Vs. Government of Bangladesh and others, 14 BLD (AD) 142
Writ jurisdiction
When an order is passed by a person or body without any lawful authority such an order is devoid of any force of law. In such circumstances, the High Court Division acting under Article 102 of the Constitution shall not direct any authority to enforce such an order by way of Mandamus.
Kazi Abdur Rouf Vs. Govt. of Bangladesh and others, 16 BLD (HCD) 607.
Writ Jurisdiction
Articles 133-139 of the Constitution of Bangladesh regulate and control the service of persons in the service of the Republic. Under our constitutional scheme there is no reasonable. ground to hold that a Judge of the Supreme Court of Bangladesh is in the Service of the Republic. Therefore, holding of the office of the Chief Election Commissioner by respondent No. I does not stand as a bar against his appointment as a Judge of the Appellate Division of the Supreme Court of Bangladesh—Constitution of Bangladesh, 1972, Articles—133—139.
Shamsul Huq Chowdhury Vs. Mr. Justice Muhammad Abdur Rouf, 16 BLD (HCD) 126.
Writ jurisdiction
The High Court Division acting under Article 102(2)(a)(ii) of the Constitution can only make a declaratory order. It cannot direct any authority to do a particular thing unless such a direction is required by law—Constitution of Bangladesh, 1972,Article—102(2)(a)(ii).
Bangladesh Vs. Mahbubuddin Ahmed, 18 BLD (AD) 87.
Writ jurisdiction
A person who intends to invoke fundamental right for challenging the vires of a law may seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2) of the Constitution in service matters—Constitution of Bangladesh, 1972, Articles— 102(1.) and 117(2).
Md. Ali Hossain Fakir and 5 others Vs. Govt. of Bangladesh and others, 18 BLD (HCD) 282.
Writ jurisdiction
In view of the fact that the eviction of the sex-workers was made by private individuals and the Government had no hand in the matter, and the action was done not in connection with the affairs of the Republic, the eviction, however condemnable it may be, does not come within the mischief of Article 102 of the Constitution.
Sultana Nahar Vs. Bangladesh and others, 18 BLD (HCD) 363.
Writ Jurisdiction
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.
The respondent did not make out any case before the High Court Division that the proviso to section 194 of the Customs Act, in the facts and circumstances of the case was availed of by it without success and there for the appellate forum did not provide any equally efficacious relief to it. It simply did not take any steps in terms of the proviso to section 194 of the Customs Act. In that view of the matter the Appellate Division did not think that the High Court Division was well- found in law, in the facts and circumstances of the case, that the respondent rightly invoked the writ jurisdiction—Customs Act, 1969 (IV of 1969), Section—194, Constitution of Bangladesh, 1972, Article—102.
Bangladesh Vs. Section Steel Industries Ltd., 19 BLD (AD) 98.
Writ Jurisdiction
In order to obtain a relief under Article 102 of the Constitution the petitioner should come with an undisputed claim to invoke the power under Article 102—Constitution of Bangladesh, 1972,Article—102.
Al-Helal Rice Mills Ltd. Vs. Bangladesh Shilpa Rin Sangstha, 19 BLD (HCD) 550.
Writ jurisdiction
The High Court Division in exercising jurisdiction under Article 102 of the Constitution cannot direct the respondents to rectify or alter the particular clause of the contract in order to make it equal to the contracts entered into with the other purchasers in respect other tennaries:
Abu Mohammad Vs. Government of Bangladesh & anr., 20 BLD (HCD) 278.
Writ Jurisdiction
The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70.
Md. Mozibur Rahman Moznu Vs Abdul Halim and others., 21 BLD (AD) 109.
Writ jurisdiction
As regards the service of summons, it shows from Annexure-2 to the affidavit-in opposition that summons was duly served upon defendant No. 3. Moreover, from order 11 dated 4.3.97 of Money Suit No. 4 of 1996 it appears that the petitioner himself appeared before the court and took adjournment. In writ jurisdiction, whether summons was served or not is not to be adjudicated as it is not even permissible—Constitution of Bangladesh, 1972, Article—102.
S M Abul Hossain Vs Agrani Bank Rupsa Stand Road, Khulna, 21 BLD (HCD) 410
Writ jurisdiction – Disputed question of fact
Disputed question of title and possession cannot be decided in writ jurisdiction— Constitution of Bangladesh, 1972, Article— 102.
Mosammat Nurjahan Akhter Vs The Government of Bangladesh and others, 21 BLD (HCD) 519
Writ jurisdiction
The appointment in a teaching post of the University although can only be made by the Syndicate but the Syndicate being a creation of an Ordinance it cannot act arbitrarily and capriciously but it must act judicially and fairly—Constitution of Bangladesh, 1972, Article— 102
Dr Md Alamgir Vs The Vice Chancellor, BUET and others, 21 BLD (HCD) 514.
Writ Jurisdiction – Disputed question of fact
In a case where basic facts are disputed and complicated questions of law and fact depending on evidence are involved, the writ jurisdiction is not the proper forum for seeking relief. An affidavit is not sufficient to decide the propriety of the foundation of the petitioners’ title even prima facie and so on the strength of the possessory title claimed on that basis which is itself a disputed matter the petitioners cannot get the relief they have prayed for—Constitution of Bangladesh, 1972, Article—102
Mrs. Saju Hossain Vs Govt. of Bangladesh and another, 21 BLD (HCD) 199.
Writ jurisdiction
This Court would be far exceeding its proper functions if it were to assume jurisdiction to enforce performance by public bodies of all their statutory duties without requiring clear evidence that a person who sought its interference had a legal right to insist upon its performance—Constitution of Bangladesh, 1972, Article—102.
Hazerullah v. The Assistant Commissioner, Board of Management of Abandoned Property and others, 22 BLD (AD) 155.
Writ Jurisdiction—Question of fact
The petitioners’ claim of compensation for the land acquired is dependent on the proof of their title to the land. Whether the petitioners have any title to the land acquired by the Government is a question of fact which cannot be decided in a writ petition— Constitution of $Bangladesh, 1972, Article—102.
Abul Kalam Md. Mohiuddin Khan v Chairman, Rajuk and others, 22 BLD (AD) 150.
Writ Jurisdiction—Question of fact
There is no material on record to ascertain the quantity of land in possession of the petitioners from which they were allegedly evicted, the High Court Division was in error in overlooking this contentious fact requiring adjudication on the basis of evidence, which is outside the scope of writ jurisdiction— Constitution of Bangladesh, 1972, Article 102.
The Director, Housing and Building Research Institute v. Darus-Salam Cooperative Housing Society Ltd. and others, 22 BLD (AD) 134.
Writ Jurisdiction
Non-compliance of certain Rules
As this Rule empowers the Authority in giving direction to an owner to ply his vessel on any route as per timetable approved temporarily in his favour in the public interest and in such case the Authority may waive the requirements of any or all the Rules, the non-compliance of certain Rules will not make the timetable illegal and without lawful authority—Inland Shipping Ordinance 1976 (LXXVII of 1976), Section—54, Bangladesh Inland Water Transport Authority (Time and Fare Table Approval) Rules 1970 Rule— 15(i)(c).
Sirajul Hoque and others v. Bangladesh Inland Water Transport Authority and others, 22 BLD (AD) 10.
WRIT OF CERTIORARI
The jurisdiction in the nature of Certiorari is not so wide or large as to enable the High Court Division to convert itself into a Court of appeal and examine for itself materials to come to a new finding and to substitute the findings of the tribunal— Constitution of Bangladesh, 1972, Article— 102.
Bangladesh. Tobacco Company Limited and another v. Md. Azizul Huq and another, 22 BLD (AD) 184.
WRIT OF MANDAMUS
Under Article 102 of the Constitution a Writ of Mandamus may be issued where a petitioner has an undisputed constitutional or legal right to a property, which is being infringed.
A letter from the Secretary of a particular Ministry of the Government addressed to another authority of the Government to return unutilised excess acquired land to the original owners does not create any legal right in their favour and non-compliance with such request is no violation of any legal or a fundamental right—Constitution of Bangladesh, 1972, Article—102.
Hazi Aftabuddin and others Vs. Bangladesh and others, 17 BLD (HCD) 1.
Writ of Mandamus
When a citizen of Bangladesh is found to be in distress in a foreign country for no fault of his/her own or due to circumstances beyond his/her control, a duty is cast upon the Government to come to his/her rescue for mitigating the plight. In the instant case, victim Hasina Begum, a minor girl, was languishing in a Women’s Home in India caused by the machinations of some women traffickers. The High Court Division directed the Secretary, Ministry of Foreign Affairs, to initiate appropriate actions for arranging repatriation of the victim to Bangladesh— Constitution of Bangladesh, 1972, Article— 102.
Mr. Abdul Gufur Vs. Secretary, Ministry of the Foreign Affairs, Govt. of Bangladesh and another, 17 BLD (HCD) 560.
Writ of Mandamus—Public Park
A public park is necessary for protecting health and hygiene of the inhabitants of the area providing open space with garden. Trespassers cannot be allowed to occupy the same on the plea of their indispensable accommodation to protect their lives to the detriment of health and hygiene of the inhabitants of the area and the Corporation is under legal obligations to evict such unauthorised occupants from the public park—Constitution of Bangladesh, 1972, Article—102.
Gias Uddin Vs. Dhaka Municipal Corporation, 17 BLD (HCD) 577.
Writ of Mandamus
Where a notice is passed without lawful
authority and where the respondents also realised the rates without any legal sanction for refund of such illegally realised money it is within the province of the High Court Division to order writ of mandamus upon the respondents directing refund of money illegally collected—Constitution of Bangladesh, 1972, Article— 102.
Q C Shipping Limited and another Vs. Chitta gong Port Authority and others, 19 BLD (HCD) 501.
Writ of Mandamus
Under the provisions of Article 21 of P.O. 26 of 1972 respondent No. 1 shall carry on and transact all kinds, of banking business.
There is no dispute that the remission of interest was allowed by the respondent No. 1 in respect of its banking business. Banking business is nothing but a business like any other business aim of which is to earn profit. Banking business of the respondent No. 1 owned by the Government is not in exercise of any statutory power and is done by the respondent No. 1 in the capacity of an ordinary business organisation and as such writ of mandamus does not lie against the respondent No. 1 to enforce an ordinary contract—Constitution of Bangladesh, 1972, Article— 102(2)(a)(i).
Fazlur Rahman and Co.(Pvt.) Ltd. Vs. Agrani Bank and ors., 19 BLD (HCD) 346.
Writ of Mandamus
This court could pass any order giving appropriate direction for the enforcement of any of the fundamental rights and could also give direction in the nature of mandamus—- Constitution of Bangladesh, 1972, Article1 02(2)(a)(i),
Professor Nurul Islam Vs. Government of Bangladesh, 20 BLD (HCD) 377.
Writ of Mandamus
The amended notification published by the University, by which respondent No. 1 was eligible to be issued an admit card, escaped the notice of the petitioners, who deliberately did not issue an admit card. The decision of High Court Division allowing respondent No. 1 to be admitted, as he had only the last chance and not made to suffer for the fault of the petitioners, is warranted in the facts and circumstances of the case— Constitution of Bangladesh, 1972, Articles— 27, 28 and 31. Bangabandhu Sheikh Mujib Medical University Act 1998 (Act I of 1998), Sections—6 and 45.
Principal, Dhaka Medical College, Dhaka & ors. V Dr Manzoor Rasheed Chowdhury & ano., 22 BLD (AD) 225.
WRIT OF QUO-WARRANTO
As. respondent No. I has -not as yet taken oath of office and, has not assumed charge of office of the President of Bangladesh the present writ petition is held to be premature—Constitution of Bangladesh, 1972, Article—102(2)(b)(ii).
Abu Bakar Siddique Vs. Justice Shahabuddin Ahmed and others, 17 BLD (HCD) 31.
Writ of Quo-Warranto
Under given circumstances a Writ of Quo-Warranto under Article 102(2) (b)(ii) of the Constitution may be treated as a Writ of Certiorari as contemplated under Article 102(2)(a)(ii) of the Constitution.
Abu Bakar Siddique Vs. Justice Shahabuddin Ahmed and others, 17 BLD (HCD) 31.
Writ of Quo Warranto
The petitioner did not come before the writ court to establish any public right but only to serve his selfish end. A writ of quo warranto cannot be indulged in for such a purpose—Constitution of Bangladesh, 1972, Article—102 (2)(b)(ii).
Mohammad Abdur Rab Mia Vs. The District Registrar and others, 19 BLD (AD) 24.
Writ of Quo Warranto: Maintainability
Any citizen, of the State can maintain an application in the nature of quo warranto if he finds that anybody is holding any public office in flagrant violation of constitutional provision or in violation of any other law.
The petitioner is a practicing Advocate and a conscious citizen to the country and he has every right to move this court under Article 102 of the Constitution if he finds that any person is appointed to any post in violation of any. provision of law or the Constitution and in the instant case the posting of respondent No. I as C.M.M. Dhaka, has been challenged by the petitioner on the ground that in posting him in the said post, the provisions of Article 116 of the Constitution has been violated and as such the instant application is maintainable—Constitution of Bangladesh, 1972, Article— 102(2)(b)(ii).
Md. Idrisur Rahman Vs. Md. Shahiduddin Ahmed & ors., 19BLD (HCD) 291.
Writ of Quo Warranto—whether infructuous or not?
The question that left for consideration is as to whether the rule has become infructuous inasmuch as the respondent No. 1 ceases to hold the office of C.M.M, Dhaka, now. It is true that the writ of quo warranto is addressed to nullify any unlawful holding of any post by a person. In the instant case admittedly the respondent No. 1 is no more holding the said post of C.M.M. Dhaka and the persons, who successively succeeded respondent No. 1,were also been appointed to the said post in violation of the Article 116 of the Constitution that is, appointments were made without any consultation with the Supreme Court. In that view of the matter the High Court Division held that such practice should not be allowed to be continued by the executive authority.
Md. Idrisur Rahman Vs. Md. Shahiduddin Ahmed & ors., 19 BLD (HCD) 291.
Writ of Quo Warranto
Every citizen demanding removal of all usurpers in public functionaries in public interest has a right to pray for a writ of quo warranto the question of an alternative remedy is not a bar in such a case invoking the such jurisdiction of the High Court Division— Constitution of Bangladesh, 1972, Article— 102(2)(bXii).
Md Zahedul Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.
Question of delay in filing the writ of quo warranto
There can be no question of delay in presenting a petition for writ of quo warranto in which the right of a person to function in a certain capacity is challenged. Every day a fresh cause of action arises on the theory of “De dia in diem” that means from day to day. No application for quo warranto can be dismissed for any length of delay—Constitution of Bangladesh, 1972, Article —102(2)(b)(ii).
Md Zahedul Islam Khan Vs Husain Mohammad Ershad and others, 21 BLD (HCD) 376.