WORDS AND PHRASES

 

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.

Words and Phrases

 

 

Words and Phrases

 

“In accordance with”

Black’s Law Dictionary (Abridged 5th Edn.) defines “accordance” as ‘agreement, harmony, concord, conformity. “Steroid’s Judicial Dictionary, 4th Edn., Vol. 3, gives 8 illustrations’& the use of the words “in accordance with” one of which means “in substantial compliance with’, Biswas on Encyclopedic Law Dictionary, 2nd Edn., quotes Mahesh Chandra v. Tara Chand Modi, A1R1958A11374, to say, ‘The words “in accordance’ mean in conformity or ‘as provided for’“. So does Mitra in Legal and Commercial Dictionary, 4th Edn., Vol. 20A, ‘in accordance with’ is used as an equivalent of ‘not repugnant to, ‘not in conflict with’ or ‘not inconsistent with’. [Para- 1]

Bangladesh Air Service (Pvt.)LtcL Vs. British Airways PLC. 5 BLT (AD)-242

“Subject to”

In Blacks Law Dictionary, 5th Edition, “subject to” means ‘liable, subordinate, subservient, inferior, obedient to, governed or affected by, provided that, provided, answerable for’. Biswas and Mitra (afore quoted) quote Balkrishna v. State of Madras, A1R1961 (SC)1 152, to say, “The words “subject to” have reference to effectuating the intention of the law and the correct meaning is “conditional upon”. So does Perm’s Judicial Dictionary, Vol. (iv), quoting another unreported Indian Supreme Court case. Words and Phrases (afore quoted), Vol. 40, describes “subject to” as meaning ‘conditional upon’ or ‘depending on’, or ‘subordinate to’ or ‘inferior to’. [Para-20]

Bangladesh Air Service (Pvt.) Ltd. Vs. British Airways PLC. 5 BLT (AD)-242

“Continued ill-health”

The interpretation of the words “continued ill- health” should be kept as flexible as possible so as to accommodate individual cases or classes of cases of ill-health within the scope of those words, depending upon the facts and circumstances of each case. [Para-10]

M/S. Karim Jute Mills Ltd. Vs. Second Labour Court 5 BLT(AD)-289

Show Cause Notice

A show cause notice is not a technical requirement or an idle ceremony. The notice must not be vague or in bare language merely repeating the language of the statute—The principle of a meaningful show cause has been highlighted when a person is called upon to meet or explain some charges brought against him — in not giving specific facts with particulars in the show cause notice, the rule of fairness which is a part of the principle of natural justice has been offended. [Paras-15 & 17]

Govt. of Bangladesh & Ors Vs. Md. Tajul Islam 5 BLT [AD)-186

The Meaning of “reasonable notice”

A reasonable notice’ means a reasonable length of time — reasonable notice will depend upon the facts and circumstances of each case.

Commissioner of Customs Vs. Giasuddin Chowdhury & Anr 5 BLT (AD)—274

Pre-emption

Pre-emption is a kind of purchase in preference according to category. When the question of purchase comes, the seller or transfer must have some right or saleable interest in the holding without that what the buyer will get by pre-emption, whatever may be the nature of transfer. So against fictitious transfer pre-emption cannot be allowed. If pre-emption is allowed in respect of fictitious transfer, it will illegally affect the share and interest of the real co-sharers, which cannot be allowed by a court of law. IPara-141

Md. Solaiman Ali Sheikh & Ors. Vs. A. B. Siddique Sheikh & Ors. 5 BLT (HCD)-143

Non-Speaking Order

While the petitioner was serving as Private Secretary to the Minister for Labour and Manpower he was served with an order of dismissal on 18.6.84 under the Martial Law Order No. 9 of 1982. Petitioner filed a review petition against the order of dismissal on 20. 6. 84 to the President and CMLA, that before the review application was disposed of the post of CMLA was abolished—vide notification dated 12.10.91 respondent No. 2 constituted a forum to examine and consider petition.

review application— the forum in a meeting on a careful consideration of the petitioners case found nothing against the petitioner and recommended for his reinstatement on setting aside the order of dismissal, and petitioner was informed about the rejection of the review application on 1.2.94—

Held : In the instant case from the impugned order we find that no reason whatsoever was assigned in refusing to accept the recommendation of the committee except for a general observation that no sufficient grounds for the acceptance of the review was found. This in our opinion is a slipshod and non-speaking order which offends the idea of justice. [Para-12]

Md. Gholam Mostafa Miah Vs. Ministry of Establishment & Ors. 7 BLT (HCD)-127

Burden of Proof

An abandoned property—The petitioners carried the onus to Prove the presence or where about or management of the building in question by the original non-Bengali owner when P.O. No. 16 of 1972 was promulgated and this burden of proof having not been discharged by them before the Court of Settlement. [Para-7]

Rahima Begum & Ors. Vs. Court of Settlement 5 BLT (AD)-100

Citizenship

The term “citizen” derived from the Latin word “civics” is no longer understood in the narrow sense of earlier times as an inhabitant of a city or a freeman having a family in a city or as the representative of a city in parliament. By citizen it is now meant a person who is a member of an independent political community having rights and obligation under the constitution and law of that country, what sovereignty is to a state. citizenship is to a person. Sovereignty gives a state membership in the family of nation and citizenship gives a person membership in the political community of his country. Citizenship, the status of being a citizen, is a term of Municipal Law, Nationality, the status of being a national, is a term of international law. Citizenship, though not mentioned as a fundamental right in our Constitution, is to be considered as the right of all rights as on it depends one’s right to fundamental rights expressly provided for a citizenship In part III of the Constitution. [Paras-7 & 8]

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

From the international standpoint, the nationality is the status and quality of belonging to particular nations or states. All nations of a state are not citizens though citizens must be nationals. A national of a state may not possess full civil or political rights, but a citizen must possess full civil or political rights. The provisions of the Act of 1951 and P.O. 149 of 1972 are to be read together to get a complete picture of the law of citizenship in Bangladesh. [Paras- 160 & 162]

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

Citizenship may be acquired by birth or by naturalisation. A person who is deemed to be a citizen of Bangladesh under Article 2 of the order is not required to take any oath of allegiance unless he is elected or appointed to any office mentioned in the third schedule of the Constitution. A naturalised citizen is however, required to take oath of allegiance to the Constitution of the Peoples Republic of Bangladesh. IPara-71

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

Cause of Action

It is now well settled that suspension as a prelude to the disciplinary action as not a punishment and as such it does not give rise to any cause of action and in the instant suit from exhibit cha (8) it is crystal clear that the plaintiff opposite party No. 1 has been placed under suspension in pursuance of resolution dated 1.7.90 wherein it has been resolved by the Governing Body that they would constitute and appropriate committee for taking disciplinary action against the plaintiff opposite party No. 1 in view of the allegations levelled against him and in that view of the matter we held that the instant suit suffers from want of cause of action but unfortunately both the courts below surely missed this point. [Para-14]

Dhwiat Degree College Vs. M. A. Samad & Ors. 5 BLT (HCD)—1 10

Cause of Action

The expression “cause of action”, thus, means the entire bundle of facts which a plaintiff has to prove in order to be eligible for the grant of relief. In other words, it can be stated that the facts that are alleged in the plaint and which are required to be proved without proof of which the plaintiff would not be entitled to a judgment, constitute the cause of action. Equally It can be said that a cause of action presupposes the existence of a right In the plaintiff which right has either been infringed or is threatened to be infringed. The right must be a substantive right, or it may pertain only to procedure, but the right must be there. Whether any particular facts constitute a cause of action has to be determined with reference to the facts of each case and with reference to the substance rather than the form of the action. Cause of action cannot be construed in an isolated way and the whole averments made in the plaint are to be seen and taken together to see whether any cause of action has been disclosed or not. It is the plaint as a whole which is to be construed and not the terminology or for that matter, a few stray references. [Para-70]

Mohammad Azun & Ors. Vs. Doly Islam & Ors. 7 BLT (HCD)-164

Computation of Interest

In respect of computation of interest, from Ext. 2, credit agreement dated 20.7.70 it would appear that the interest was fixed @ 7% per annum on the outstanding amount of loan disbursed. Interest is payable in half yearly rests, first payment becoming due on the date six months after from the date of opening the first letter of credit. In the terms and conditions of the schedule of agreement the question on penal interest was incorporated by way of liquidated damage @ 1% in the event of the borrowers failing to pay when due, any instalment of the principal of the loan/credit, interest, commission or any other costs, charges and expenses which the borrowers are liable to pay under this agreement. The interest payable under this sub- clause shall be computed for the period of default. [Para- 16]

Delta Jute Mills Ltd Vs. Bangladesh Shilpa Bank & Ors 7 BLT (AD)-274.

Computation of Time

The suit is barred by limitation having not been filed within 12 years from the admitted date of dispossession in the year 1971 as contended by the petitioner’s Counsel.

The admitted position that the suit property was released by the Government on 13.4.76 in favour of the plaintiffs vendor, Mahboob Hossain, whose ownership had been accepted by the concerned authority and as such the period the property had been under the management of the Government as abandoned property cannot be tagged with the period of limitation of 12 years. The suit having been filed on 10.8.86 well within the period of 12 years from 13.4.76 is not barred by limitation. [Para-6]

Mostafa Ali Mridha Vs. Md Raquibullah & Ors. 7 BLT (AD)-258

Decree

A ‘decree’ by definition means the formed expression of an adjudication which so far as regards the court expression it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. [Para-23]

M Ayub Ali Vs. Bangladesh & Ors. 3 BLT(AD)-14

Domicile

“By domicile, we mean home, the permanent home.” Domicile has been defined as that place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. The permanent residence of a person of the place to which he intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. It is his legal residence, as distinguished from the temporary place of abode, or his home. [Para- 160]

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

Dwelling House

In the instant case admittedly the plaintiff is not residing or ever reside in Kha schedule property which was purchased by defendant No.2. There is no evidence that it was a family dwelling house. But it transpired that those were occupied by some other persons though under the plaintiff and defendant No. 1. It is in evidence that the plaintiff was residing at Sherpur town after the death of her husband and then. she shifted to Narayanganj. So by no stretch of imagination that it cannot be found that the Kha schedule property is the dwelling house of the plaintiff. [Para- 12]

Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7 BLT (HCD)-80

Debutter Property

With the dedication of a property to a Deity It becomes the property of the Deity and ceases to be the property of the donor forever.

After the dedication is complete, a debutter property can never revert to the donor and under no circumstances it can be turned into a secular property. The character of the debutter property cannot be changed by the Shebait of anyone else. [Para-29]

Hindu Devi Lakshmi Gobinda Jew Vs. Govt of Bangladesh & Ors. 7 BLT (HCD) – 133

Forgery

When a person is to be found guilty for forgery of a document, there must be an original document first, when an original document is substituted by another fabricated document, or if a document is created by a ficticious person and not by a genuine person it may be called a forgery. [Para- 11]

S.A. AIim Vs. D Goiwn Nabi & Anr 3 BLT (HCD)-1

Fact of Fraud

Fact of fraud is a matter of inference from proved facts and circumstances of each case and the evidence received by the court. Each circumstance by itself may not tell much, but when a bundle of circumstances are taken together they may bring into light a fraudulent or dishonest plan to commit fraud. [Para-14]

Govt. of Bangladesh & Anr Vs. Mashiur Rahman & Ors. 6 BLT (AD)-73

‘Government’

The word “Government” thus, denotes the person or body of persons administering the laws and governing the State. “Government” is the body of persons charged with the duty of governing and exercising certain powers and performing of certain duties by public authorities or officers together with certain corporations exercising public function. [Para-23]

M. Habibur Rahman & Ors Vs. Govt. of Bangladesh & Ors. 7 BLT HCD)-327

Heba-bil-Ewaz

From the definition of Heba-bil-ewaz itself and also from the principles of law involved it is clear that the transaction of Heba-bil-ewaz is in fact a sale. Therefore, as a sale cannot be completed without price is paid, Heba-bil-ewaz also cannot be called valid unless ewaz is paid. [Para- 14]

Md. Nurul Islam & Ors. Vs. Azimom Bewa 6 BLT (HCD)-1 16

Heba-bil-Ewaz

The learned Subordinate Judge appear to have committed serious error of law as he considered the admission of the plaintiff that she put her L.T.I. in the heba-bil-ewaz but he failed to consider the circumstances in which she had to put her signature and she disordered, the heba-bil-ewaz by saying that fraud having been practised upon her and she did not know about the contents of the deed and she put her signature in good faith on the sale of 15 decimals of land and her signature was collusively used in the heba-bil-ewaz and further no exchange was proved or established. The learned Judge committed serious error of law in not considering the circumstances as such his findings are not sustainable in law. Furthermore the plaintiff as the owner and having been in possession although challenged the heba-bll-ewaz as such burden is lying upon the defendant to prove that the heba is genuine. [Para-5]

Jobeda Khatoon Vs. Shorab Hossain & Ors. 7 BLT (HCD)-290

Injunction

An injunction is a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice or restraining an act which it esteems contrary to equity and good conscience. In other words, an injunction is a form of equitable relief and it is to be issued in aid of equity and justice and not to aid injustice. [Para- 17]

M/S Gloland Put. Ltd. Vs. Govt. of Bangladesh 7 BLT (HCD)-214

Law on injunction—Balance of convenience and Inconvenience

The prayer of the defendant for temporary injunction—The question is if defendant no. 2 appellant has made out a prima facie case in support of the prayer against plaintiff respondent no. 1 on whose behalf there is an affidavit-in-opposition in respect of handing over and taking over charge of the office of the Managing Director. This paper dated 4.7.1996 is about handing over charge of the office of the Managing Director to plaintiff-respondent no. 1 Khawja Zaki Ahsanullah by M.R. Siddique the Company Secretary, who according to plaintiff-respondent no. 1, was acting as Managing Director in his absence. There is another paper dated 24.12.1996 indicating that plaintiff-respondent no.1 has correspondence with Sonali Bank to get credit for running the affairs of the Jute Mills and this letter was sent by the Bank to plaintiff- respondent no. 1, who was addressed as Managing Director of the Jute Mills on 24.12.1996. There is another letter from the Commissioner of Customs and Excise dated 28.8.1997 informing-respondent no. 1 that it is not the responsibility of the collectorate determine as to who is the legal Managing Director of the Mills and this paper addressing the Managing Director of M/s. Nowab Askarl Jute Mills is addressed and sent to twin House, Shahbagh, Dhaka which seems to be the address of plaintiff- respondent no. 1. All these papers are indicative of the fluid condition of the affairs of the Jute Mills and of the Company. The trial Court will have to consider all aspects of the case and take evidence to decide and dispose of the suit at an early date. At the moment it appears that the appellant has failed to make out a prima facie case in support of his prayer for temporary injunction. In this view of the matter, we need not consider the balance of convenience and inconvenience. [Para- 10]

Nawab Khawja Habthullah Askari Vs. Khaja Zaki Ahsanullah & Ors 6 BLT (HCD)-196

Iddat

Iddat (a period of waiting, a prescribed penod) is a concept distinctive and unique is Quranic jurisprudence, like of which is not to be found in any other known system of jurisprudence. The question of iddat for women arises on other occasions as well as on the death of husband, on periods of abstinence from sexual Intercourse and on periods of abandonment of prayers and fasting by women, but it arises also when there is a pronouncement of talaq. The purpose of iddat after divorce is four fold, first, to allow the parties to reconciliate and to give the divorce a go by in the cases of Talaq Ahsan or Talaq Hasan, secondly, to ascertain whether the woman is carrying any offspring of her husband in the womb or not, so that the legitimacy of the child remains beyond dispute, thirdly, to prevent re-marriage of the woman during the period of iddat in order not to forestall reconciliation and to avoid future controversies on legitimacy and fourthly, to make arrangements for the maintenance of the woman during the period of iddat. [Para- 100]

M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7 BLT (AD)-33

Public Interest

It appears that the reason for cancelling and issuing fresh auction by the impugned notice was made for the reasons that the bid money was inadequate in comparison with the market value in the locality and the right reserved by respondents as per rule/clause 8 of the terms of the previous auction notice they have published the impugned notice— Held: On such facts of the case we find that the decision of the respondent was bonafide for public interest and not arbitrary. [Para-7]

Dr. Md Habthullah Vs. Rajdhani Unnayan Kartripakha & Ors. 7 BLT (HCD) 8

Prima Facie

The term “prima facie” is not specifically defined in the Code of Civil Procedure. The judge made law or the consensus is that in order to satisfr about the existence of “prima facie” case. the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement in the hands of the defendants.

.A good “prima facie’ case means a case where the plaintiff has a fair question to raise at the trial and the suit is not likely to fail on a technical flaw. [Para-18]

M/S Gloland Put Ltd Vs. Govt of Bangladesh 7 BLT (BCD)-214

Public Purpose

Any purpose which benefits the public or a section of the public is a public purpose, with the onward march of civilisation the concept of public purpose has been broadening. If the purpose serves some public use or interest as opposed to the particular interest of an individual the purpose is public. [Para-10]

Brahmanbaria Pourashava Vs. Ministry of Land & Ors 7 BLT (AD)-95

“Pro-forma promotion”

The respondent stood first in the batch of 1965 E.P.C.S (Ex) class-i and while serving as section officer in the Ministry of Health and Family Planning he was removed from service, which he challenged in title suit and obtained a decree—The Government re-instated him as senior Assistant Secretary which was equivalent to the position he was holding at the time of his removal—with regard to promotion the Appellate Tribunal held that the respondent is entitled to pro-forma promotion” from the date of the promotion of his juniors—Held : The Appellate Tribunal was not well-founded in law in granting pro-forma promotion to the respondent in support of which we find no legal basis. [Para-23]

Government of Bangladesh Vs. Shamsuddin Ahmed 7 BLT (AD)-260

Resident

Any person who occupies a dwelling within the State, has a present intent to remain it in the State for a period of time. it signifies one having a residence, or one who resides or abides. (Para- 160)

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

Right to Freedom of Speech

Every citizen has the right to freedom of speech and expression as guaranteed by Article 39 of the Constitution. This right is not absolute, but subject to reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence. [Para -101

Halima Farzana Vs. Bangladesh & Ors. 7 BLT(HCD)-86

Reasonable order

The application was rejected by the impugned order saying that it was made clear in the earlier order that no further time would be allowed—Held: It is wholly reasonable order. [Paras – 3 & 5]

S. M. M. Khansur & Anr Vs. Janata Bank 7 BLT (AD)-2

Reasonable cost of repairs

The reasonable cost of repairs is the second higher watermark in measuring the indemnity in respect of unprepared damage. This is a necessary and inevitable exercise, unless the parties had already arrived at a negotiated figure. [Paras – 25 & 33]

Sadharan Bima Co Vs. Bengal Liner Ltd & Anr 5 BLT (AD)-69

Res-Judicata

Title suit 71 of 1976 of the contesting defendant was a suit for declaration that the order passed by the C.O. (Ref) in Redemption case 2 of 1973, is illegal without jurisdiction and non-permanent injunction. The suit of the plaintiff being Title Suit 8 of 1989 is for redemption of mortgage and for khas possession and for declaration that the decree passed in Title Suit 71 of 1976 is illegal and not binding upon the plaintiff. Not only cause of action and subject matter are different.

Held : The decision on Title Suit 71 of 1976 Is not bar, by res-judicata, in deciding the present Title Suit 83 of 1989. [Para-7]

Rajiuddin Chowdhury Vs. Suruj Ali 3 BLT (HCD)-135

Whether the Plainttff must get a decree on the basis of their acquisition of title by adverse possession of the suit land for more than 12 years

Admittedly the ‘K schedule land was purchased by Shiv Chandra Majumder by a registered kabala exhibit-i which was produced by the respondents. There is also no dispute that by way of inheritance Rajani Kumar Majumder and Gopal Chandra Majumder become the owners in the suit land. There is also no dispute that an application was ified praying for restoration of possession of the suit land against the respondents in Miscellaneous case No. 61 of 1964 — The respondents claimed possession since March 30, 1948 and as such they acquired title in the suit land by continuous possession for more that the statutory period before filing of the Miscellaneous Case No. 61 of 1964. [Paras-10& 11]

Hafez Mohammad Abdul Haque Vs. Ayub Ali & Anr 4 BLT (AD)-28

Whether the payment has to be established before delivery or the delivery has to be made before payment is established

By a Memo of Agreement (MOA) defendant No. 1 a British Shipping Company, agreed to sell the vessel in question to the buyer-plaintiff. Though the plaintiff performed his part of obligation in all respects, the defendants failed to perform their part of obligation and as a result there was a breach of contract on the part of defendant No. 1, the plaintiff-petitioner claimed in the money suit compensation and damages — The plaintiffs suit for compensation and damages was partly decreed by the Trial Court. The Trial Court held that the seller acted illegality by not making physical delivery of the vessel to the buyer-plaintiffs as per terms of MOA—on appeal the High Court Division rejected the contention of the means acceptance on delivery and allowed the appeal.

Held: The High Court Division has rightly held that in spite of clause 5 of the MOA the plaintiff had no obligation to accept the vessel in terms of clause 3 of the MOA, to see that the vessel answers the description given in the MOA. This provision was apparently inserted to ensure that the rejection of the vessel does not take place after delivery is made without payment. Clauses 13, 15 and 18 of the MOA will come into operation after establishment of the payment mentioned In clause 3 which provides that the moneys secured by the L.C. in order to be releasable must be supplemented by production of a number of documents, some by the seller, some by the buyer. The buyer has to produce a document of acceptance of the vessel, which the buyer did not. [Para – 14]

M/S N. I. Khan & Co. (Put.) Ltd. Vs. Festast Shipping Co. S. S. & Ors. 4 BLT (AD) 33

Whether the High Court Division remanded the suit to the trial court

The suit was decreed both by the trial court and by the lower appellate court — Held : It appears that the First Commissioner’s report was not challenged by the defendant and the same was accepted by the trial court. It is on record that the Second Commissioner’s report was also submitted but none of the courts below considered the Second Commissioner’s report which contradicts the First Commissioner’s report to some extent — The learned Single Judge of the High Court Division rightly found that non-consideration of the Second Commissioner’s report has affected the decision in the case and remanded the suit to the trial court for proper adjudication. [Para-6]

Md. Shothur Rahman Vs. Mojthur Rahman 4 BLT(AD)-169

Whether the petitioners given any right for implementation of the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in one Atiqullah’s case –

The petitioners have not been given any right under the Administrative Tribunals Act, 1980 to move the Administrative Tribunal to implement the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed successive cases not in a representative capacity or in the nature of a group or class action but as an individual applicant agitating his own individual grievances. [Para-7]

Md. Hafizuddin & Ors Vs. Bangladesh Bank & Anr 5 BLT (AD)-179

Whether the High Court Division fell into an error of law in sending back the case to the trial court for a fresh decision after setting aside the concurrent judgment of the two courts below

It appears that learned Single Judge was of the view that some common question of acquisition of right and title In both the schedules of the lands were Involved In the case and that unless the suit be remanded for retrial In respect of schedule 2 land as well there would be a chance of conflicting decisions. He was also of the view that the trial court and the appellate court arrived at their findings on this schedule wrongly by refusing to accept some relevant documents into evidence and without proper consideration of the evidence on record, causing thereby a miscarriage of justice. Accordingly the learned Judge came to the conclusion that the schedule 2 land should not be excluded from the scope of the order remand passed by the lower appellate court. We do not fmd any good reason to interfere with the impugned judgment of the High Court Division. [Para-9]

Bakhtiar Meah & Ors. Vs. Malika Khatoon & Ors 5 BLT (AD)-105

 

Whether the High Court Division can confirm the trial court’s assessment of compensation merely ‘for ends of justice”

In the present case the appellants are not challenging the quantum of damages awarded. They are contending that there is no legal evidence worth the name in determining the very basis on which compensation has been assessed. Both the High Court Division and this Division too, upon granting leave, are competent to decide this question. We have held that the High Court Division, before endorsing the amount of compensation as allowed by the trial court totally failed to consider the evidence on record in so far as the plaintiffs claim of damages in schedule B of the plaint is concerned and also overlooked that there was no legal evidence worth the name in support of the plaintiffs claim of alleged loss and damage. We have also found that there was no evidence of actual loss and damage sustained by the plaintiff and the High Court Division cannot confirm the trial court’s assessment of compensation merely ‘for ends of justice for assessment of compensatory/special damage is a legal exercise based on evidence on record and not an exercise in compassion and sympathy. [Para – 29]

Serajul Islam Chowdhury & Ors. Vs. Md. Jamal Abedin & Ors. 5 BLT (AD)-158

 

 

Whether the Exception I to Section 28 of the Contract Act validated conferment of exclusive jurisdiction by the parties on English Courts ousting the jurisdiction of local Courts-

There is nothing in Exception 1 to section 28 of the Contract Act prohibiting the parties to a contract from choosing a foreign forum under the supervision of a foreign court for arbitrating its disputes. Such contract does not offend the main provision of section 28, because the local courts still retain the jurisdiction to decide the list between the parties. The appellant is free to file a suit for damages against the respondent in the local court. The respondent is also free to ask for a stay of the suit, pending arbitration, and it is for the local court having regard to all circumstances, to arrive at a conclusion whether sufficient reasons are made out (by the plaintifO for refusing to grant a stay. (Michael v. Serajuddin, A1R1963 (SC)1044 and also M.A. Chowdhury vs. Messrs. Mitsui O.S.K. Lines, Ltd., 22DLR(SC)334. [Para-21]

Bangladesh Air Service (Put.) Ltd Vs. British Airways PLC. 5 BLT (AD)-242

 

Whether an annual lessee under the Government has legal right to challenge the impugned judgment and order when his lessor has not done so –

Held : The petitioner claims himself as an annual lessee under the Government in respect of the disputed land. The Govt. of Bangladesh does not challenge the impugned judgment and order of the High Court Division. The relevant authority on being satisfied that the original owner, Pran Gopal. is a Bangladeshi decided that his property was wrongly listed as vested property arid accordingly passed the order to release the property from the list of vested property in exercise of their authority under the relevant law. The petitioner as a temporary lessee has no legal right to challenge the impugned judgment and order when his lessor has not done so. [Para – 4]

Md. Afazuddin Halder Vs. Abu Mohammed Siddique & Ors. 5 BLT (AD)-143

 

Whether the High Court Division fell into an error of law in setting aside the order of remand made by the appellate court and restoring the decree of the trial court –

High Court Division could not restore the decree of the trial court without consideration of the evidence on record on merit. [Para- 13]

Sree Chittaranjon Chakraborty Vs. Md. Abdur Rob 5 BLT (AD)-135

 

Whether the ovservations made by the High Court Division is bind to the trial court –

Held: In the instant case such observations do not bind the trial court and it is free to take its own decision on the basis of materials placed and submissions made before it. [Para-3]

Mrs. Zeba Khan Vs. Play Pen School & Anr. 5 BLT (AD)-142

 

Whether the statutory show cause notice as served on the respondent under section 14(1) of the Emigration Ordinance, 1982 is legal and valid –

By majority decision — the order of cancellation of the respondent’s licence (Annexure “H”) does not show that the Govt. was either “satisfied” as required under section 14(1) or that the respondent’s long representaion was ever brought to its notice. The order, on the face of it, thus, was a bad order in the eye of law. [Para-22]

Govt. of Bangladesh & Ors Vs. Md. T…… Islam 5 BLT (AD)-186

 

Whether the executing court can remit the interest as decreed

It is well-settled law that the executing Court in required by law to execute the decree as it stands and it cannot go beyond of the decree in any way.

Mir amanullah Vs. National Cold Storage Ltd. & Anr 5 BLT (BCD)-88

 

Whether the District and Sessions Judge to dispose of contempt matter –

The District and Sessions Judge had no jurisdiction or authority to dispose of contempt matter in view of the contempt of Court Act.

Subbatara Begum Vs. Ansaruddin 5 BLT (HCD)-191

 

Whether the jurisdiction of the Artha Rin Adalat to entertain an application under Article 33 of the Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. No. 128 of 1972) –

A Subordinate Judge acting as an Artha Rin Adalat cannot entertain such an application directly. [Para-8 ]

Bangladesh Shilpa Rin Sangstha Vs. Fashion Wear Ltd. 6BLT (AD)-124

Whether Section 24 of the Non-Agricultural Tenancy Act, 1949 is applicable to lands of Dhanmondi Residential Area –

The object of section 85(2) of the Act was to retain control over non-agricultural land held by a tenant under the Government unencumbered by the provisions of the NAT Act. Section 81A(2) stated positively how the rights and liabilities of nonagricultural tenants other than those who have become tenants under the Government by virtue of compulsory acquisition of land shall be determined. The NAT Act has not been mentioned to be a governing law in respect of such tenants of nonagricultural land under the Government. Hence, on both accounts, under section 85(2) of the NAT Act and section 8 IA(2) of the SAT Act, the ouster of NAT Act from the categories mentioned therein are complete. Section 24 of the NAT Act has no manner of application to lands of Dhanmondi Residential Area.

Md. Mosaddeque Hossain Vs. Dr Esmat Mkja & Ors 6 BLT (AD)-180.

Whether the Martial Law order dated 8.11.86 ‘vith immediate effect” communicated vide dated 4.1.87 dismissing the respondent from service was correct –

We find it well-nigh impossible to accept, rather physically impossible to accept the proposition that an order affecting a person would be effective as against that person without even intbrming him about the order by merely giving the order an immediate effect. If it were to be so, then an absurd situation will arise; for example, if an order of dismissal is passed with immediate effect and kept under the pillow of the maker, then the dismissed person cannot attend office from the next day because it has become effective as soon as the order was passed. Nothing can be more offensive to common sense than to suggest that the order will be operative without the person knowing that an order was passed against him—We think it is a sound proposition that an order to be effective must at least be communicated to the person concerned and the date of actual receipt is not material for the said purpose. In the present case, it is apparent that there was no communication of the order of dismissal until 4.1.87. MW No. 9 having been repealed in the meantime, the light had gone out of the order. The order was not communicated to the respondent when there was light in It. The respondent was communicated about the order at a time when no light could be put in the order. Therefore the order of dismissal qua the respondent was not an order under the MLO. It could not be effective against him at any time. [Paras-29 & 31]

Bangladesh Vs. Mahbubuddin Ahmed 6 BLT (AD)-185

 

Whether a need to protect the public servant from the propensity of politicisation of administration –

In the present cases Commander Pilots working in a commercially-oriented Airlines are not being selected for promotion to the selected post of Deputy Operations Manager. Deputy Secretaries are being considered for promotion to the selected posts of Joint Secretary. Additional Deputy Commissioners and the like are being considered for a promotion to the selected posts of Deputy Secretary. They have already put in a number of years in Government service which is basically different from working as a Pilot in a Commercial Airline. Evaluation of their efficiency, conduct, discipline, comprehension, initiative, zeal to work, honesty, personality and various other requirements of service have been recorded each year in their respective ACRs. That ought to be the most dominant and persuasive document for the purpose of evaluating the candidates’ eligibility for the promotion post. The marks fixed for interview should be minimum so as not to upset the accumulated credits achieved by the candidates over the years in their respective ACRs by a momentary impression created in the minds of the Interview Board before which the candidates cannot possibly appear for more than a few minutes. There is a strong need to protect the public servant from the propensity of politicisation of administration by a party Government by keeping the marks for interview as minimum as possible so that the scope of arbitrariness and the possibility of pick and choose are absolutely minimised. We would therefore agree with the ultimate decision of the learned majority Judges of the special Bench that allocation of 40% marks for interview in the context of the situation obtaining in our country and in the context of the finding that the guidelines were arbitrarily and that 15% marks for interview under the circumstances would be a safe marking system for protecting the neutral character of public service. [Para – 55]

Ministry of Establishment Vs. Shafluddin Ahmed & Ors. 6 BLT (AD)-22

 

Whether that there was no cause of action for filing of the suit as the threatened dispossession by the defendant No. 1 does not exist after his death –

The question of fresh threat from the heirs of defendant No. 1 does not arise as the suit was filed at a time when there was definite cause of action as asserted in the plaint as such the learned Single Judge was not correct in holding that there was no continuing threat to file the suit. [Para-9]

Most Saitart Bibi & Ors. Vs. Chairan Bewa & Ors 6 BLT (AD)-157

Whether the evidence on record has been duly considered in consequence of which the trial court’s judgment was reversed –

Held: The learned Judges of the High Court Division without adverting to the material evidence on record held that in hot haste before the completion of survey report the plaintiff destroyed the stock of shrimps and prawns. In one sentence the learned Judge’s of the High Court Division held that “the evidence of PWs 2- 5 didn’t inspire any confidence.” This is indeed a perfunctory assessment of the evidence on record by a court of fact and consequently the modification of the trial Court’s judgment has been done in a slipshod manner. [Para- 11]

Chalna Manne Products Ltd. Vs. Reliance Insurance Ltd 6 BLT (AD)-234

 

Whether the Bainapatra deeds are genuine or created documents through acts of forgery –

The Bainapatra deeds were alleged to have been executed on 22.10.71 and 13.12.71. On a close scrutiny of the Bainapatra deeds it appears that one Bainapatra deed had been written on a stamp paper and another written on a cartridge paper purchased in the year 1969. Exhibit-8 is a kabala deed dated 4.8.71 which was executed by defendant No. 7 in favour of the father of defendant nos. 1-5. It is recited in the said kabala deed that following the alleged agreement, defendant No. 7 transferred the suit land in favour of the father of the defendant nos. 1-5. Exhibit-4 is a deed of reconveniance executed by the father of defendant nos. 1-5 in favour of defendant No. 7. From the above, it reveals that at the time of the alleged execution of the Bainapatra deeds, the defendant No. 7 was not the owner of land, and, as such, the Bainapatra deeds by a person who was not the owner of the land got no legal force and also legal existence in the eye of law. In the written statement filed on 27.9.1996 by the defendant nos. 1-5, defendant Nos. 4 and 5 had been shown as minors but in the Bainapatra deed exhibit-F, it was not at all recited that the defendant No. 5 had been minor at that time. Exhibit-i, a School Certificate duly proved by the Head Master of the concerned school is an evidence to show that the defendant No. 5 was born only on 24.6.1974. The matter, thus, became manifestly clear that the defendant No. 5 was not at all born on the date of the alleged execution of Bainapatra i.e., in the year 1971. Both the courts below on a proper consideration and discussion of the legal evidence and other materials on record came to the positive finding that the Bainapatra deeds Exhibits-F and Fl are totally false and are acts of forgery. On consideration of the materials on record I do not find any reason to disagree with above the findings arrived at by the courts below.

Zamiruddin Ahmed Vs. Md Ziaul Haq & Ors 6 BLT (HCD)-5

Whether fraud was practiced in obtaining the documents

In the present case, from the fact that it was alleged by the defendant that the excu tant who is an illiterate and unsophisticated rural lady was identified by her husband at the time of registration but it is in evident that she was allegedly identified by a different person. So there was none to give independent advice to the excutant of the document

—It is there that the documents were obtained by fraudulent means. [Para-19] Barada Surtdari Vs. Makhan Chandra Das 6 BLT (HCD)-210

 

Whether the order of the learned Muns appears to be the non-application of a judicial mind –

Since the learned Munsif received the petitioners’ application for staying further proceedings of the suit on 6.5.1987 for enabling the petitioners in move the High Court Division against the rejection of their prayer for being added as parties to the suit, in all fairness and in conformity with judicial courtesy, the learned Munsif ought to have allowed some reasonable time to the petitioners to move this court for vindication of their observance and he should have stayed his hands off the proceeding for the time being. After disposal of the suit by order dated 6.5.87 there remainers title sense in fixing 13.5.87 for considering the petitioners’ application for staying further proceedings of the suit. The order of the learned Munsif appears to be the result of a bundle of confusions and non-application of a judicial mind and it cannot be approved. [Para-8]

Mst. Halima Khatoon & Ors. Vs. Nurul Huda Mondal & Anr. 6 BLT (HCD)-1

Whether Impugned judgment is not a proper

Judgment of reversal

In the instant case the appellate court did not advert the reasonings of the trial court and also did not discuss the material evidences which were considered by the trial court and these hit the root of the merit of the case—and it also appears that the appellate court also did not comply with the requirements of Order 41 Rule 31 of the Code of Civil Procedure in delivering the impugned judgment—Held The impugned judgment and decree is not a proper judgment of reversal— relied on 1997 BLT (AD) 15. [Para-5]

Md. Haresuddin Mondal Vs. Md. Palu Sarder & Ors. 7 BLT (HCD)-229

 

Whether the High Court Division was wrong in relying upon the firisti, Ext-I, in coming to the finding of relationship of land lord and tenants between the parties when the original documents claimed to be filed by the plaintiff were not on the record –

The learned Single Judge of the High Court Division, following the trial court, committed serious error of law in relying upon Ext.-I, a certified copy of the firisti, because a firisti is no evidence of the contents of the documents filed. Consequently, he wrongly held that there exists relationship of landlord and tenant between the parties. [Para-10]

Chandan Mondal & Ors. Vs. Md. Abdus Samad Talukder & Anr 7 BLT (AD)-223

Whether the Government, aggrieved by the observations of the Appellate Tribunal that the circular dated 28-7-76 was only for executive guidance having no statutory force –

We find that in the facts and circumstances of the case the Appellate Tribunal need not have gone into the question as to whether the circular in question was only for executive guidance with no statutory force. It was enough for the purposes of the case to decide whether the respondents were entitled to a show cause notice before their appointments were cancelled in view of the fact that they were appointed by the appointing authority himself and that they had no hand in the procedural mistake. Both the tribunals below having held concurrently that the respondents had acquired a vested right on being appointed to the post of steno-typist on getting letters of appointment from the appointing authority and that their appointments could not be cancelled unilaterally it was not necessary to further explore whether the circular in question had any statutory force or not. [Para-9J

Government of Bangladesh Vs. Md. Abdul Malek Miah & Ors. 7 BLT (AD)-266

 

Whether the document cannot be considered as antedated

Use to different pen and ink cannot be a reason to believe that the document is anti- dated the document cannot be considered as antedated only because the schedule was written by a different pen using different ink. [Para-9]

S. J. Chowdhury & Ors Vs. Abdul Jabbar & Ors 4 BLT (HCD)-63

 

When the prayer for sending a disputed document to a hand writing expert for examination be rejected –

In title suit the plaintiffs seeking a declaration that certain khatians in favour of the defendants were wrong—for which they want to be examined by an expert the petitioners did not take any step for such examination when they got knowledge about the disputed document of the defendant and that the petitioners belated prayer for expert examination be rejected. [Paras-2 & 31

Abdul Latif & Ors. Vs. Altafur Rahman & Ors. 2 BLT (AD)-56

 

On an application seeking retirement the Corporation released the respondent from the service with all financial benefits. Whether the respondent can challenge such release order and High Court Division can put him back in service on a writ petition.

Bangladesh Parjatan Corporation & Ors. Vs. Md. Mafizur Rahman & Ors 2 BLT (AD)-49

Whether Partial Partition Maintainable

The general rule that all the joint properties should be included in a suit for partition is not an inflexible one. It can be relaxed and partial partition allowed, where it is not proved that the parties will be prejudiced or in convenience by such partition. [Para-61

Safaruddin & Ors. Vs. Fazlul Haq & Ors. 5 BLT (AD)-129

WORDS AND PHRASES

 

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.

 

Words and Phrases

Words and Phrases

Absorption

The term
“Absorption” in Service Jurisprudence means taking in or accommodating a public
servant, who may, for various reasons, have been found or declared to be a
surplus.

Lt. Cot (Retd)
Nazimuddin Ahmed Vs.  Bangladesh &
Ors. 3BLT (AD)-176

Abandoned Property and Vested Property

Once a
property is treated as an abandoned property, it cannot thereafter be treated
as a vested property. An abandoned property can never become a vested property.
The action of the defendants in treating the suit property as a vested property
is consequently illegal and without jurisdiction.

Hindu Devi Lakshmi
Gobinda Jew Vs. Bangladesh & Ors. 7BLT (HCD)-133

Adverse possession

When a
co-sharer is sole possession transfers the land in his possession to a stranger
to the family and such purchaser possessed the land in assertion of his title
to the exclusion of other co-sharer openly, notoriously and continuously and
denied the title of other cosharers by mutating and recording his name in the
record of right and paying rent separately, the same will amount o ouster of
such  cosharers and such possession more
than 12 years will extinguish of title of a co-sharer by way adverse
possession.

Md. Shamsuzzaman Vs.
Abdul Gani & Ors. 10 BLT (HCD)-339

Adverse Possession

Adverse
possession is a mixed question of fact and law in the sense, that the fact of
adverse possession is to be gathered from surrounding circumstances and then,
to decide whether such possession creates title in favour of the person in such
possession— once adverse possessing for over the statutory period of limitation
is established, the person in such possession becomes entitled to a decree
since it is one of the accepted modes of acquisition of title in property.

Md. Mahmood Alam
&Anr Vs. Moklesur Rahman Bhuiyan. 10 BLT (HCD)-235

Administration of justice

Court or
Tribunal adjudicating any Judicial matter must administer justice according to
law and must not allow itself to be influenced by emotions or personal notions,
however heinous the offence involved in the case may be. A dispassionate and
balanced approach to the vital aspects of the case and the law bearing on the
subject is a precondition for administering even-handed justice. Law, equity
and good conscience demand that justice should not only be done but it must also
be seen to have been done.

Md. Hanif Sheikh Vs.
Mst. Asia Begum 7BLT(HCD)-28

Adverse Possession

Adverse
Means obstruct to one’s interest unfavorable, harmful or detrimental or
prejudicial. Adverse possession means hostile possession which is expressly or
impliedly in denial of the title of the true owner. Such possession Must be
actual and exclusive under a claim of right adequate in community. if publicity
and in extent, so as to show that it is adverse to the true owner. Such
possession in denial of title of the true must be peaceable, open and
continuous. It must be open and hostile enough to be capable of being known to
the party interested before a right can be acquired or lost by adverse
possession, it must have been the subject of possession by a man without title
as against the person with the rightful title.

Abu Taher & Ors
Vs. Ayub Ali Mollah & Ors 14 BLT (HCD)486

Alibi

The word
“alibi” is a Latin term . Literal meaning of “alibi” is “elsewhere” . In law
this term is used to express that defence in a criminal prosecution where the
party accused in order to prove that he could not have committed crime charged
against him, offers evidence that he was in a different place at that time. The
plea taken should be capable of meaning that having regard to time and place
when and where he is alleged to have committed the offence he would not have
been present . The plea of “alibi” postulates the physical impossibility of the
presence of accused at the scene of offence by reason of his presence at
another place.

The State Vs Md.Gaus
Meah @ Rana& Ors. 13 BLT (HCD)136

A Statement of accounts

A
statement of accounts to be tiled in court must show the details and debit
entries, and if debit entry relates to interest then setting out also the rate
of interest and the period for which, the interest was charged.

Uttara Bank Ltd. Vs.
Mrs. Ayesha Siddique &Ors 12 BLT (HCD)106

“At or about the
time”

The
expression at or about the time” must mean that the statement must he made at
once or at least shortly after the event, when I reasonable opportunity for
making its present itself.

The State Vs. Enayet
Hossain @ Endu Molla 12 BLT (HCD)242

Benefit of Doubt

Benefit
of doubt means an advantage or behoof of doubt. Reasonable doubt must be a
doubt, arising from the evidences or from the want of evidences and cannot be
an imaginary doubt or conjectures unrelated to evidence. Doubts which are real,
genuine, well founded, which a normal man with normal intelligence in a given
circumstances would normally harbour are doubt that come within the fold of
Reasonable doubt entitling one to Benefit of doubt.

The State Vs. Ershad
Ali Sikder & Ors 12BLT (HCD)481

কোন
আদালত
’in respect of Artha
Rin
Adalat
Ain

The word
কোন
আদালত
occurring in Sub Section-(
1) of Section-6 of the Act refers any
other court than the Artha Rin Adalat.

Islami Bank
Bangladesh Ltd. Vs. Al Haj Shafiuddin Howlader &Anr. 8BLT(AD)-187

Acquiescence

“Acquiescence”
is, therefore, acceptance, active assent and active consent, consent by
silence, giving up abandonment of claim which a person can perform and enforce.

A. Latif and Company
Limited Vs. The Project Director & Ors 12 BLT (HCD) 311

Afterthought matter

Custody
of Title deed plays an important part in proving the case of Benami transaction.
Custody of Title deed came from the side of defendant opposite party. In the
original plaint there was no statement as to the custody of Title deed. The
plaintiff as P.W. 1 on 18.04.1994 on the witness box in answer to a question
stated that he would produce Title deed subsequently. The reply is produce here
in verbatim
“উক্ত দলিল পরে
জমা দিবে”
Record manifests that subsequently by way of
an amendment which was allowed by the court on 30.04.1994 statement was
incorporated that the wife of defendant took away the said Title deed from the
wife of the plaintiff with the plea that the same would be returned back but
the said Title deed was not returned back, From this, the point had been
crystallized that the attempt made by the plaintiff to explain custody of Title
deed was . very much an afterthought matter.

S. D. Daliluddin Vs.
Moulvi Baziur Rahaman 8 BLT (HCD)-171

Aggrieved Person

Merely
being a prior adopter and user of a mark would not give a person any vested
right to object if his goods in question are not available in the market at a
time when he mark is registered in favour of another person. We hold that the
High Court Division has rightly found that the petitioner is not an aggrieved
person to maintain its application for rectification of the trade mark
register.

M/S Supremax
International Private Ltd. Vs. Samath Razor Blades Industries Ltd. & Anr. 8 BLT (AD)-45

Arbitration

Arbitration
therefore is submission by two or more persons of their disputes, differences
or disagreements to the judgment and/or decision of a third person, known as
arbitrator who will finally decide the controversy of course in judicial
manner.

Bangladesh Jute
Corporation Vs MIS. A. B. Jute Limited 13BLT (HCD)92

Bangladesh

Bangladesh
came into being as a fulfillment of the dreams of the millions of Bengalis so
that they can breathe in an independently country of their own. They knew that
their country is not rich but expected that social justice shall be established
and the people shall be provided with the bare minimum necessarities of life
the Constitution of the People’s Republic of Bangladesh envisages a welfare
state and makes all citizens have got equal rights in every sphere of life
including food, shelter, healthcare, education and so forth which is of
fundamental in nature.

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

 

Benami

The word
“Benami” is of Persia origin made o two words “Be” and “Nam” meaning no name i.
e. nameless or fictitious. The nominal owner is the Benamdar. the simple
meaning of “Benami” is that a purchaser desires to buy property but does not
desire to buy in his own name and therefore buys it in name of someone else.

S. D. Daliluddin Vs.
Moulvi Bazlur Rahaman 8 BLT (HCD)-171

Benami

The word
“Benami” is a Persian compound word consisting of (i) Be which means ‘without’
and (ii) Nam which means ‘name. It literally means without a name, that is
nameless or fictitious and is to denote a transaction which is really done by a
person without using his own name. That is, not in the name of real purchaser,
but in the name another. In every such benami transaction there
are three persons concerned; the vendor, the real purchaser and the name
lender.

Ali Azam Vs. Mohammad
Majibullah. 11 BLT (HCD)-26

Benami Transaction in respect of Bangladesh

The
“Benami Transaction” give rise to countless litigations and witnessed evil
effect on the society. The evil effect flowing from “Benami Transaction” had
been noticed by the legislators, the law makers of Bangladesh. Subsequently, by
the land Reforms Ordinance, 1984 the concept of “Benami Reforms Ordinance came
into force of January 26. 1984 when the same was published in the Bangladesh
Gazette Extraordinary and coming into force of the said Ordinance, no one is
allowed to set up the claim of ‘Benami Transaction’.

S. D. Daliluddin Vs.
Moulvi Baziur Rahaman 8BLT (HCD)-171

Benami Transaction

The word
benami transaction means a transaction in which the purchase is made in the name
of some one other that the real purchaser. In the alleged transaction it
appears that the name of the real purchaser as well as his alleged benamder are
appeared in the kabala deed. So apparently the instant transaction is not a
benami transaction within the meaning of the words ‘benami’ “benamder” and
“benami transaction.”

Ali Azam Vs.
Mohammad Majibullah. 11 BLT (HCD)-26

Bill of Leading

A Bill
of Lading is not the contract itself because that has already been made before
the bill of lading was signed and delivered. It is only an evidence of the
contract.

Govt. of Bangladesh
Vs. M. V. Vishwa Kaumudi & Ors 12 BLT (HCD)365

Bonafide requirement

The
expression “Bonafide requirement” connotes an element of “must have” which the
petitioner failed to prove. It has been consistently held by the Superior
Courts that in order to evict a tenant the landlord must prove that he requires
the premises bonafide meaning that his requirement is not a colourable pretext
rather the need for the premises is a must short of which he will be deprived
of his right to use his property.

Hari Mohan Sarker
Vs. Haji Ahmed Miah & Anr. 8BLT (AD)-39

Burden of Proof

An
abandoned property—The petitioners carried the onus to Prove the presence or
where about or management of the building in question by the original
non-Bengali owner when P.O. No. 16 of 1972 was promulgated and this burden of
proof having not been discharged by them before the Court of Settlement.

Rahima Begum &
Ors. Vs. Court of Settlement 5BLT (AD)-100

Burden of Proof

Burden
of proof is the obligation to adduce evidence to satisfaction of the court in
order to establish strictly the existence of nonexistence of a fact contended
by a party. the provision as to burden of proof is founded on the Rule i.e.
incumbit probation qui dicit non qui nega—which is the burden of proving a fact
rests on the party who substantially asserts in affirmative of the issue and
not upon the party on the party who substantially assets in affirmative of the
issue and not upon the party who denies it; for a negative is usually incapable
of proof. The Rule is derived from the Roman law and is supportable not only on
the Ground of fairness but also upon that on the greater practical difficulty
which is involved in proving a negative than in proving an
affirmative.

S. D. Daliluddin Vs.
Moulvi Bazlur Rahaman 8 BLT (HCD)-171

Cause of Action

It is
now well settled that suspension as a prelude to the disciplinary action as not
a punishment and as such it does not give rise to any cause of action and in
the instant suit from exhibit cha (8) it is crystal clear that the plaintiff
opposite party No. 1 has been placed under suspension in pursuance of
resolution dated 1.7,90 wherein it has been resolved by the Governing Body that
they would constitute and appropriate committee for taking disciplinary action
against the plaintiff opposite party No. 1 in view of the allegations leveled
against him and in that view of the matter we held that the instant suit
suffers from want of cause of action but unfortunately both the courts below
surely missed this point.

Dhunat Degree
College Vs. M. A. Samad & Ors. 5BLT(HCD)-110

Cause of Action

The
expression “cause of action”, thus, means the entire bundle of facts which a
plaintiff has to prove in order to be eligible for the grant of relief. In
other words, it can be stated that the facts that are alleged in the plaint and
which are required to be proved without proof of which the plaintiff would not
be entitled to a judgment, constitute the cause of action. Equally it can be
said that a cause of action presupposes the existence of a right in the
plaintiff which right has either been infringed or is threatened to be
infringed. The right must be a substantive right, or it may pertain only to
procedure, but the right must be there. Whether any particular facts constitute
a cause of action has to be determined with reference to the facts of each case
and with reference to the substance rather than the form of the action. Cause
of action cannot be construed in an isolated way and the whole averments made
in the plaint are to be seen and taken together to see whether any cause of
action has been disclosed or not. It is the plaint as a whole which is to be
construed and not the terminology or for that matter, a few stray references.

Mohammad Azim &
Ors. Vs. Doly Islam & Ors. 7BLT (HCD)-164

Cause of Action

Government’s
possession of the suit property or possession by any official on its behalf is
not that of a ‘trespasser’, or Government is not a finder of a ‘derelict
object’ warranting consequential relief. The Government claims possession under
colour of the law. Upon a decree for declaration the Govt. Could not claim
title hostile to the owner. The Government is a ‘constructive trustee’ subject
to the liabilities and disabilities, as it were a trustee of the property for
the person for whose benefit it holds it. Upon removal of the could by a decree
for declaration it remain undoubtedly under the obligation as a trustee to
relinquish possession over the property in favour of the owner. Failure to
restore possession will give rise to a fresh cause of action.

Sena Kalayan
Sangstha Vs. Mr. Nagar Mohiuddin & Ors 14 BLT (AD) 230

Cause of Action

Cause of
action cannot be construed in an isolated way and whole averments made in
plaint are to be seen and taken together to see whether any cause of action has
been disclosed or not.

Bangladesh Bank Vs.
Saiyed Shohidul Haque & Ors 15 BLT (HCD) 239

Citizenship

The term
“citizen” derived from the Latin word “civics” is no longer understood in the narrow
sense of earlier times as an inhabitant of a city or a freeman having a family
in a city or as the representative of a city In parliament. By citizen it is
now meant a person who is a member of an independent political community having
rights and obligation under the constitution and law of that country, what
sovereignty is to a state, citizenship is to a person. Sovereignty gives a
state membership in the family of nation and citizenship gives a person
membership in the political community of his country. Citizenship, the status
of being a citizen, is a term of Municipal Law, Nationality, the status of
being a national, is a term of international law. Citizenship, though not
mentioned as a fundamental right in pur Constitution, is to be considered as
the right of all rights as on it depends one’s right to fundamental rights
expressly provided for a citizenship in part III of the Constitution.

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

From the
international standpoint, the nationality is the status and quality of
belonging to particular nations or states. All nations of a state are not
citizens though citizens must be nationals. A national of a state may not
possess full civil or political rights, but a citizen must possess full civil
or political rights. The provisions of the Act of 1951 and P.O. 149 of 1972 are
to be read together to get a complete picture of the law of citizenship in
Bangladesh.

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

Citizenship
may be acquired by birth or by naturalisation, A person who is deemed to be a
citizen of Bangladesh under Article 2 of the order is not required to take any
oath of allegiance unless he is elected or appointed to any office mentioned in
the third schedule of the Constitution. A naturalised citizen is however,
required to take oath of allegiance to the Constitution of the People’s
Republic of Bangladesh.

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

‘Circular’

Circulars
are of three kinds, i-e, simply drawing attention to recent legislation and
delegated Legislation, giving advice or information and the third is purely
executive containing a model form of Order to be made by a Local
authority—relied on Odger’s The construction of Deeds and statutes.

According
to Scott L. J. “Minister’s “Circulars” were not mere executive directions but
delegated Legislation with statutory force, conferring powers on the
Corporation which they would not otherwise have possessed.”

Md. Solaiman Khan
& Ors Vs. Govt. of Bangladesh. 12 BLT (HCD)342

Computation of Interest

In
respect of computation of interest, from Ext. 2, credit agreement dated 20.7.70
it would appear that the interest was fixed @ 71/2% per
annum on the outstanding amount of loan disbursed. Interest is payable in half
yearly rests, first payment becoming due on the date six months after from the
date of opening the first letter of credit. In the terms and conditions of the
schedule of agreement the question on penal interest was incorporated by way of
liquidated damage @ 11/2% in the event of the borrowers
failing to pay when due, any installment of the principal of the loan/credit,
interest, commission or any other costs, charges and expenses which the
borrowers are liable to pay under this agreement. The interest payable under
this sub-clause shall be computed for the period of default.

Delta Jute Mills Ltd
Vs. Bangladesh Shilpa Bank & Ors. 7BLT (AD)-274



Computation of Time

The suit is barred
by limitation having not been filed within 12 years from the admitted date of
dispossession in the year 1971 as contended by the petitioner’s Counsel

The
admitted position that the suit property was released by the Government on
13.4.76 in favour of the plaintiffs vendor, Mahboob Hossain, whose ownership
had been accepted by the concerned authority and as such the period the
property had been under the management of the Government as abandoned property
cannot be tagged with the period of limitation of 12 years. The suit having
been filed on 10.8.86 well within the period of 12 years from 13.4.76 is not barred
by limitation.

Mostafa Ali Mridha
Vs. Md. Raquibullah & Ors. 7BLT (AD)-258

Compensation

‘Compensation’
means anything given to make things equivalent; a thing given to or to make
amends for loss, recompense, remuneration or pay; it need not therefore
necessarily be in terms of money.-Compensation cannot be based on imagination
and expectation. It could only be based on actual loss and injury.

BCCI Ltd. Vs.
Bangladesh Electrical Industries Ltd. & Ors. 12 BLT (HCD)502

“Continued ill-health”

The
interpretation of the words “continued ill- health” should be kept as flexible
as possible so as to accommodate individual cases or classes of cases of
ill-health within the scope of those words, depending upon the facts and
circumstances of each case.

M/S. Korim Jute
Mills Ltd. Vs. Second Labour Court 5BLT(AD)-289

Consultation

The
Constitutional Consultation cannot be equated with conventional consultation.

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

Court

To be a
court, the persons or person who constitute it must be entrusted with judicial
function in deciding litigated questions in accordance with law. A court must
be a competent authority deriving power from the state to make a judicial
decision. A public officer to be a court must be empowered to make a juditive
judgment is, therefore, considered the essential sinegquanon of court and
unless and until a binding and authoritative judgment can be pronounced by
person or body of persons it cannot be predicted that he or they constitute a
court.

Md. Abu Zafor Miah
Vs. Abdul Motaleb & Anr. 8BLT (HCD)-94

Court’s duty

The
fundamental duty of the court is to administer justice on technical grounds.
The principal object behind all legal formalities is to safeguarded these
paramount interest of justice and mere technicalities inless offering an
insurmountable hurdle should not be allowed to defeat the ends of justice. The
English system of administration of justice on which our own is based may be to
a certain extent technical but the defect of that system should not be taken
too strict—adherence to procedure defeats course of justice.

S. D. Daliluddin Vs.
Moulvi Baziur Rahaman 8 BLT (HCD)-171

Co-sharer in the Land

The
concept of Co-sharer cannot be conceived independent of any holding or tenancy.
If the holding is recorded in the name of more than one person, then, each of
such person to his succession-in-interest is the co-sharer to each other in
such land. Such a Co-sharer will deem of continue as such co-owner in both
holding as well as in land so long holding will continue to be joint.

S.S. Nasirul Haque
Chowdhury & Ors. vs. Omar Faruque 10 BLT (HCD)-318

Contempt of Court

Contempt
of Court has not been defined either in the constitution or in any other
statute, but there has been judicial interpretation thereof, Proceedings for
contempt are initiated for the purpose of protecting the image and dignity of
the court itself. The purpose of proceedings in contempt of court is to keep
the stream of justice unsullied and to maintain the confidence of the public at
large in the fair and impartial administration of justice by the court of law
in a proceedings under contempt there cannot he both justification and an
apology.

Md. Sirajul Islam
Vs. Wahidul Haque. 11 BLT(HCD)-168

Control

“Control”
in section 19(f) of The Act means that the offender must have such power over
the weapon that he can direct its custody, production, use or disposal in some
manner. “Control” in context means power or ability to regulate the keeping or
possession or use or disposal of the weapon. “Control” may be essential for
possession and unless one has control over an article one may not be said to be
in possession of it hut one can have control over an article without being in
possession of it.

Babul Vs The State
13 BLT (HCD)339

Decree

A
‘decree’ by definition means the formed expression of an adjudication which so
far as regards the court expression it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit
and may be either preliminary or final.

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

Decree

A
“Decree” should be understood a contested “decree’ but not an exparte “decree’
which always remains a questionable decree. The celebrated jurists had time and
again pronounced that the Judges should be leaned to allow the defaulting party
to put their grievance or cause before the court and the issue thereof should
always be resolve on contested hearing

Abul Kashem Vs. Md.
Selim & Ors. 9BLT (HCD)-317

Domicile

“By
domicile, we mean home, the permanent home.” Domicile has been defined as that
place where a man has his true, fixed, and permanent home and principal
establishment. and to which whenever he is absent he has the intention of
returning. The permanent residence of a person of the place to which he intends
to return even though he may actually reside elsewhere. A person may have more
than one residence but only one domicile. It is his legal residence, as
distinguished from the temporary place of abode, or his home.

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

Dwelling House

In the
instant case admittedly the plaintiff is not residing or ever reside in Kha
schedule property which was purchased by defendant No.2. There is no evidence
that it was a family dwelling house. But it transpired that those were occupied
by some other persons though under the plaintiff and defendant No. 1. It is in
evidence that the plaintiff was residing at Sherpur town after the death of her
husband and then she shifted to Narayanganj. So by no stretch of imagination
that it cannot be found that the Kha schedule property is the dwelling house of
the plaintiff.

Bina Roy Chowdhury
Vs. Amullya Roy Chowdhury & Ors. 7BLT (HCD)-80

Debutter Property

With the
dedication of a property to a Deity it becomes the property of the Deity and
ceases to be the property of the donor forever, After the dedications is
complete, a debutter property can never revert to the donor and under no
circumstances it can be turned into a secular property. The character of the
debutter property cannot be changed by the Shebait of anyone else.

Hindu Devilakshmi
Gobinda Jew Vs. Govt of Bangladesh & Ors. 7BLT (HCD)-133

Decision

A
decision is the determination of the controversy touching facts, law and
context an reaching of a conclusion.

Sirajul Islam
Chowdhury Traders Lts. Vs. Sirajul Islam chowdhury 8BLT (HCD)-136

Distinction between the words “Shall stand
discharged” and “Will be discharged”

There is
a distinction between the words “shall stand discharged” and “will be
discharged” In the former the order reaches to its finality and the order of
discharge will have automatic operation leaving no scope for recording any
further order and the court retains no jurisdiction to deal with the matter
final in case of default and the discharge is not automatic and further order
will be required for discharge.

Ms. Farhat Raham Vs.
Roomee Tarek Mouded 8BLT(HCD)-108

Equality, transparency and accountability of
public functionaries

In a
democratic society the public functionaries are under legal and moral
obligations to mete out equal treatment all citizens. Granting of revenue
holiday to the plaintiff involving crores of taka without and justifiable
reason is a classic example of wanton discrimination and mis-use of discretion
in managing the affairs of the state. The public functionaries must be cautious
in doling out charities by way of granting revenue holidays to individuals or
establishments against public interest. The question of transparency and public
accountability cannot be ignored at the pleasure of an individual or a group of
individuals.

Expert Engineering
Vs. Roads & Highways 9 BLT (HCD)-221

Ex parte

The term
Ex parte thus 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
hearing the other party before it.

Md. Abu Zafar Miah
vs. Abdul Motaleb & Anr. 8 BLT (HCD)-94

“ex post facto”

The
words “ex post facto” as appearing in Section-3(4) of the Ordinance, 2007
relates to the “Rule” of the EPR and not the “offences” committed.

Sheikh Hasina Vs.
Govt. of Bangladesh & Ors 16 BLT (HCD)153

Fact of Fraud

Fact of
fraud is a matter of inference from proved facts and circumstances of each case
and the evidence received by the court. Each circumstance by itself may not
tell much, but when a bundle of circumstances are taken together they may bring
into light a fraudulent or dishonest plan to commit fraud.

Govt. of Bangladesh
& Anr. Vs. Mashiur Rahman & Ors. 6BLT (AD)-73

Forgery

When a
person is to be found guilty for forgery of a document, there must be an
original document first, when an original document is substituted by another
fabricated document, or if a document is created by a fictitious person and not
by a genuine person it may be called a forgery.

S. A. Aim Vs. Dr.
Golam Nabi & Anr. 3BLT (HCD)-1

‘formal defect’

The
legal meaning of the word formal’ is done in due form or with solemnity;
according to regular way. The expression ‘formal defect’ connotes defects of
diverse kinds not affecting the merit of the case but arising out of some error
made in good faith. It is a defect of form prescribed by the rules of
procedure. If it goes to the root of the suit, it is not a formal defect. Even
when there was no such ‘formal defect’ the Court is not powerless to grant the
same prayer if justice demands.

Dil Mohammad Vs.
Jamir Hossain & Ors 13 BLT (HCD)285

‘Government’

The word
“Government” thus, denotes the person or body of persons administering the laws
and governing the State. “Government” is the body of persons charged with the
duty of governing and exercising certain powers and performing of certain
duties by public authorities or officers together with certain corporations
exercising public function.

M. Habibur Rahman
& Ors Vs. Govt of Bangladesh & Ors. 7BLT (HCD)-327

Heba-bil-Ewaz

From the
definition of Heba-bil-ewaz itself and also from the principles of law involved
it is clear that the transaction of Heba-bil-ewaz is in fact a sale. Therefore,
as a sale cannot be completed without price is paid, Heba-bil-ewaz also cannot
be called valid unless ewaz is paid.

Md. Nurul Islam & Ors. Vs. Azimon Bewa
6BLT (HCD)-116

Heba-bil-Ewaz

The
learned Subordinate Judge appear to have committed serious error of law as he
considered the admission of the plaintiff that she put her L.T. 1. in the
heba-bil-ewaz but he failed to consider the circumstances in which she had to
put her signature and she disordered, the heba-bil-ewaz by saying that fraud
having been practiced upon her and she did not know about the contents of the
deed and she put her signature in good faith on the sale of 15 decimals of land
and her signature was collusively used in the heba-bil-ewaz and further no
exchange was proved or established. The learned Judge committed serious error
of law in not considering the circumstances as such his findings are not
sustainable in law. Furthermore the plaintiff as the owner and having been in
possession although challenged the heba-bil-ewaz as such burden is lying upon
the defendant to prove that the heba is genuine.

Jobeda Khatoon Vs.
Shorab Hossain & Ors. 7BLT (HCD)-290

“Hire-Purchase”

The word
“hire-purchase” is synonymous to sale by way of hire-purchase agreement. A
hire-purchase agreement, as its very name implies, has two aspects. There is
first an aspect of bailment of the goods subjected to the hire-purchase
agreement and there is next an element of sale which fructifies when the option
to purchase, which is usually a term of hire-purchase agreements, is exercised
by the intending purchaser. The distinguishing feature of a hire purchase
agreement is that the property does not pass when the agreement is made but
only passes when the option is finally exercised after complying with all the
terms of the agreement.

Govt. of Bangladesh
& Ors. Vs. Mrs. Rosey Firoj & Ors. 14 BLT (AD)2O1

Iddat

Iddat (a
period of waiting, a prescribed period) is a concept distinctive and unique is
Quranic jurisprudence, like of which is not to be found in any other known
system of Jurisprudence. The question of iddat for women arises on other
occasions as well as on the death of husband, on periods of abstinence from
sexual intercourse and on periods of abandonment of prayers and fasting by
women, but it arises also when there is a pronouncement of talaq. The purpose
of iddat after divorce is four fold, first, to allow the parties to
reconciliate and to give the divorce a go by in the cases of Talaq Ahsan or
Talaq Hasan, secondly, to ascertain whether the woman is carrying any offspring
of her husband in the womb or not, so that the legitimacy of the child remains
beyond dispute, thirdly, to prevent re-marriage of the woman during the period
of iddat in order not to forestall reconciliation and to avoid future
controversies on legitimacy and fourthly, to make arrangements for the
maintenance of the woman during the period of iddat.

M. Hefzur Rahman Vs.
Shamsun Nahar Begum & Ors. 7BLT (AD)-33

“In accordance with”

Black’s
Law Dictionary (Abridged 5th Edn.) defines “accordance’ as “agreement, harmony,
concord, conformity. “Steroid’s Judicial Dictionary, 4th Edn., Vol. 3, gives 8
illustrations of the use of the words “in accordance with’ one of which means
“in substantial compliance with’. Biswas on Encyclopedic Law Dictionary, 2nd
Edn., quotes Mahesh Chandra v. Tara Chand Modi, A1R1958A11374, to say, “The
words “in accordance” mean in conformity or as provided for’“. So does Mitra in
Legal and Commercial Dictionary, 4th Edn., Vol. 20A, ‘in accordance with, is
used as an equivalent of ‘not repugnant to’, ‘not in conflict with’ or ‘not
inconsistent with’.

Bangladesh Air
Service (Pvt) Ltd. Vs. British Airunys PLC. SBLT (AD)-242

Injunction

An
injunction is a writ framed according to the circumstances of the case
commanding an act which the court regards as essential to justice or
restraining an act which it esteems contrary to equity and good conscience. In
other words, an injunction is a form of equitable relief and it is to be issued
in aid of equity and justice and not to aid injustice.

M/S Gloland Pvt Ltd.
Vs. Govt. of Bangladesh 7BLT (HCD)-214

Law on Injunction—Balance of convenience and
inconvenience

The
prayer of the defendant for temporary injunction—The question is if defendant
no. 2 appellant has made out a prima facie case in support of the prayer
against plaintiff respondent no. 1 on whose behalf there is an
affidavit-in-opposition in respect of handing over and taking over charge of
the office of the Managing Director. This paper dated 4.7.1996 is about handing
over charge of the office of the Managing Director to plaintiff respondent no.
1 Khawja Zaki Ahsanullah by M.R. Siddique the Company Secretary, who according
to plaintiff-respondent no. 1, was acting as Managing Director in his absence.
There is another paper dated 24.12.1996 indicating that plaintiff-respondent
no.1 has correspondence with Sonali Bank to get credit for running the affairs
of the Jute Mills and this letter was sent by the Bank to plaintiff- respondent
no.1, who was addressed as Managing Director of the Jute Mills on 24.12.1996.
There is another letter from the Commissioner of Customs and Excise dated
28.8.1997 informing-respondent no.1 that it is not the responsibility of the
collect orate determine as to who is the legal Managing Director of the Mills
and this paper addressing the Managing Director of MIs. Nowab Askari Jute Mills
is addressed and sent to twin House, Shahbagh, Dhaka which seems to be the
address of plaintiff-respondent no.!. All these papers are indicative of the
fluid condition of the affairs of the Jute Mills and of the Company. The trial
Court will have to consider all aspects of the case and take evidence to decide
and dispose of the suit at an early date. At the moment it appears that the
appellant has failed to make out a prima facie case in support of his prayer
for temporary injunction. In this view of the matter, we need not consider the
balance of convenience and inconvenience.

Nawab Khawja
Habibullah Askari Vs. Khaja Zaki Ahsanullah & Ors 6BLT (HCD)-196

An Injunction

An
injunction is an equitable relief, a strong arm of enquiry. It is to be issued
in aid of justice and not to aid injustice. Temporary injunction is mere
provisional in its nature and its sole object is to preserve the subject matter
in controversy without determining the rights of the parties and to prevent the
doing of an act whereby the subject matter of the right in the suit property or
controversy may be in danger.

Abu Mohammad Yousuf
& Ors. Vs, Mrs. Basirannessa & Ors. 8BLT (HCD)-307

Interest and Compensation

The
words interest and ‘compensation’ may be used interchangeably. Interest is
compensation allowed by law or fixed by the parties, or permitted by custom or
usage, for use of money of another for the delay in paying back the money
borrowed after it becomes due.

Uttara Bank Ltd. Vs.
Mrs. Ayesha Siddique & Ors. 12 BLT (HCD)-106

Judge’s

Judges
are not islands. They liked all other individuals are human beings. They are
neither robots nor do they live like monks or runs in a cloistered monastery
nor do they live in an ivory tower detached from the society shutting their
eyes and closing their ears no evil hence cannot afford to say that “we see no
evil and hear no evil.” If any doing so in my opinion that would be pernicious,
immoral, unethical and most of all conduct unbecoming of a judge specially if
he happens to be a judge of a constitutional Court.

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

Lawfully

Section
70 of the Contract Act—Here the word “Lawfully” must not to be read as
surplasage and must be treated as an essential part of the requirement of the
section. Lawful relationship arises not because the party claiming compensation
has done something for the party against whom the compensation is claimed but
because what has been done by the former has been accepted any enjoyed, by the
latter.

A.K.M. Shahidul
Haque Vs. Deputy Commissioner & Ors 12 BLT (HCD)236

Legitimate

The word
‘Legitimate’ connotes lawfully begotten. An expectation to become legitimate
therefore should not be shorn of lawful begetting. The concept of legitimate
expectation cannot be given such wide interpretation so as to allow any wishful
hope without lawful root. In the instant case we have found that as a result of
mere recommendation of the petitioner to the government for selection as the
best Chairman of the district, he is said to have entertained an expectation
not based on any legal ground neither borne Out by lawful begetting and as such
his expectation, however firm it was, cannot be termed to be legitimate
expectation.

Md. Hafizul Islam
Vs. Govt. of Bangladesh & Ors. 11 BLT (HCD)-65

Licensee’s Right

A
licensee enjoys such rights that have been conferred upon him under the licence
issued or granted by the statutory competent authority and therefore a licence
is subject to terms and conditions of the provisions of the Statute,
sub-ordinate legislation or bye-laws, rules made thereunder.

Md. Solaiman Khan
& Ors Vs. Govt. of Bangladesh 12 BLT (HCD)342

“Merit”

The term
“Merit” has a wide connotation and cannot be restricted to academic
qualifications only.

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

 

Words and Phrases

“May be true and
must be true”
conjecture and sure conclusions Mental distance between “may be true” and “must
be true” and distinction between “conjecture” and “sure conclusions” are to be
gathered on the touchstone of dispassionate Judicial scrutiny based upon a
complete and comprehensive appreciation of features of the case as well as
quality and credibility of evidence and materials brought on record

Muhibur Rahman Manik
& Anr Vs. The Sate 15 BLT (HCD)279

“Misconduct”

Arbitration Act -The word “Misconduct’ means mishandling of
Arbitration proceeding causing displacement of Rules of Justice and lack of
integrity and impartiality , any neglect of duty on the part of the Arbitrator
which is likely to lead a substantial miscarriage of Justice.

Chittagong Steel
Mills Ltd & Anr. Vs M/s MEC & Ors. 13BLT (HCD)230

Negotiation

Ingredients or
incidents of Negotiation—negotiation, in the context of documentary crudities do not merely
mean nodding of heads between the bank and the seller who hands over his draft
and other documents to them but definitely means something more, something
tangible,. In order to complete the negotiation, the concerned bank must make
the necessary payment against the draft and/or the documents. This incident of
payment make the bank which received the documents a negotiating bank, without
which the said bank would not be a negotiating bank but may be a collecting bank
to collect the payment from the issuing bank as an agent of the seller—the word
‘negotiation’ clearly envisages the purchase of draft and documents by the
concerned bank, even a promise to pay at a later date, would into do there must
be a corresponding payment to the beneficiary on receipt of the draft and the
documents by the concerned bank, to make it a negotiating bank.

National Bank Ltd.
Vs. Habib Bank Ltd. 10 BLT (HCD)-246

Newspaper

Newspaper
is powerful means for propagating political and social views and molding the
opinions of the people towards their certain ends, It gives an opportunity the
journalist the people to express their personal views on and subjects of their
having public interest. Through these, they can ventilate their grievances and demand
redress. The newspaper is the best means through which the Government may know
it defects in administration and so correct its ways for well being of the
people. It is one of the very important things in the life of a civilized
nation. It is the medium through which public opinion expresses itself. The
press is free to after criticism on the functioning of the court or its
officials as the very idea of the open the British System is to make it appear
to the world at large to how the courts of the country are functioning. We
believe that in this modem world, news media is one of the strong pillar which
furnishes informations of loopholes of the administration and its machineries.

Daily Star &
Protham Alo Partika Vs The State. 9BLT (HCD)-91

Non-Speaking Order

While
the petitioner was serving as Private Secretary to the Minister for Labour and
Manpower he was served with an order of dismissal on 18.6.84 under the Martial
Law Order No. 9 of 1982. Petitioner filed a review petition against the order
of dismissal on 20.6.84 to the President and CMLA, that before the review
application was disposed of the post of CMLA was abolished—vide notification
dated 12.10.91 respondent No. 2 constituted a forum to examine and consider
petitioner’s review application— the forum in a meeting on a careful
consideration of the petitioners case found nothing against the petitioner and
recommended for his reinstatement on setting aside the order of dismissal, and
petitioner was informed about the rejection of the review application on
1.2.94—Held: In the instant case from the impugned order we find that no reason
whatsoever was assigned in refusing to accept the recommendation of the
committee except for a general observation that no sufficient grounds for the
acceptance of the review was found. This in our opinion is a slipshod and
non-speaking order which offends the idea of justice.

Md. Gholam Mostafa
Miah Vs. Ministry of Establishment & Ors. 7BLT (HCD)-127

‘Petitioner’

The term
‘petitioner’ as quoted in Article 49(4) of the Order, 1972 as (amendment) does
not mean the petitioner himself and may be some body on his behalf and this
part of the said order in our view is directory.

G.Q. Chowdhury Vs.
A.B.M. Fazle Karim Chowdhury &Ors 13 BLT (AD)12

Pre-emption

Pre-emption
is a kind of purchase in preference according to category. When the question of
purchase comes, the seller or transfer must have some right or saleable
interest in the holding without that what the buyer will get by pre-emption,
whatever may be the nature of transfer. So against fictitious transfer
pre-emption cannot be allowed. If preemption is allowed in respect of
fictitious transfer, it will illegally affect the share and interest of the
real co-sharers, which cannot be allowed by a court of law.

Md. Solaiman Ali
Sheikh & Ors. Vs. A. B. Siddique Sheikh & Ors. 5BLT (HCD)-143

Prima Facie

The term
“prima facie” is not specifically defined in the Code of Civil Procedure. The
judge made law or the consensus is that in order to satisfy about the existence
of “prima facie” case, the pleadings must contain facts constituting the
existence of right of the plaintiff and its infringement in the hands of the
defendants. A good “prima facie” case means a case where the plaintiff has a
fair question to raise at the trial and the suit is not likely to fail on a
technical flaw.

M/S Gloland Pvt.
Ltd. Vs. Govt. of Bangladesh 7BLT (HCD)-214

Practice and Procedure

The
Courts are always alive to the paramount public interest, either in upholding
the decision of the Government even to the prejudice of an individual, or in
case of striking it down as arbitrary or unreasonable, the public interest
element is always the criteria for doing so. The Courts all over the world in
deciding an issue give importance always to the overall interest of the people
at large which commensurate with sense of social justice in a welfare state.

Bangladesh Soya
Protein Project Ltd. Vs. Ministry of Disaster Management & Relief 9 BLT
(HCD)-393

‘Pro-forma promotion”

The
respondent stood first in the batch of 1965 E.P.C.S (Ex) class-1 and while
serving as section officer in the Ministry of Health and Family Planning he was
removed from service, which he challenged in title suit and obtained a
decree—The Government reinstated him as senior Assistant Secretary which was
equivalent to the position he was holding at the time of his removal—with
regard to promotion the Appellate Tribunal held that the respondent is entitled
to proforma promotion” from the date of the promotion of his Juniors—Held: The
Appellate Tribunal was not well-founded in law in granting pro-forma promotion
to the respondent in support of which we find no legal basis.

Government of
Bangladesh Vs. Shamsuddin Ahmed 7BLT (AD) -260

Public Interest

It
appears that the reason for cancelling and issuing fresh auction by the
impugned notice was made for the reasons that the bid money was inadequate in
comparison with the market value in the locality and the right reserved by
respondents as per rule/clause 8 of the terms of the previous auction notice they
have published the impugned notice— Held: On such facts of the case we find
that the decision of the respondent was bonafide for public interest and not
arbitrary.

Dr. Md. Habibullah
Vs. Rajdhani Unnayan Kartipakha & Ors. 7BLT (HCD)-8

Public interest Litigation

The
nature of public interest litigation (Called PIL hereinafter) is completely
different from a traditional case which is adversarial in nature where PIL is
intended to vindicate rights of the people. In such a case benefit will be
derived by a large number of people in contrast to a few. PIL considers the
interest of others and therefore, the court in a public interest litigation
acts as the guardian of all the people whereas in a private case the court does
not have such power. Therefore, in public interest litigation the court will
lean to protect the interest of the general public and the rule of law
vis-à-vis the private interest.

E. T. V. Ltd &
Anr. Vs. Dr. Chowdhury Md. Hasan & Ors. 11 BLT. (AD)-18

Public Servant

A public
servant by definition in 1982 in the Panel Code will prospectively deemed to be
a public servant under Act II of 1947 when he commits an offence as public
servant after the amendment of the Panel Code. Further, Section 5 of Act II of
1947 speaks of the offences as mentioned in the schedule of the Act to be tried
by Special Judges. In the schedule we find sections 403 and 477A of the Panel
Code with which the accused has been charged for committing misconduct as a
public servant.

IFIC Bank Ltd. Vs.
Abdul Quayum & Anr 9 BLT (AD)-124

Public Purpose

Any
purpose which benefits the public or a section of the public is a public
purpose, with the onward march of civilization the concept of public purpose
has been broadening. If the purpose serves some public use or interest as opposed
to the particular interest of an individual the purpose is public.

Brahmanbaria
Pourashava Vs. Ministry of Land & Ors. 7BLT (AD)-95

“Pendency of proceeding”

Any
proceeding can be pushed forward even to the last ladder of hierarchy that is
before Apex Court the Appellate Division and Proceeding before Apex Court for a
final decision shall demonstratively be, also, a proceeding.

Md. Mafizul Islam
Sarker Vs. Sunil Chandra Biswas & Ors. 12BLT (HCD)-169

Resident

Any
person who occupies a dwelling within the State, has a present intent to remain
it in the State for a period of time, it signifies one having a residence, or
one who resides or abides.

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

The Meaning of “reasonable notice”

A
“reasonable notice” means a reasonable length of time — reasonable notice will
depend upon the facts and circumstances of each case.

Commissioner of
Customs Vs. Giasuddin Chowdhury & Anr. 5BLT (AD)-274



Reasonable order

The
application was rejected by the impugned order saying that it was made clear in
the earlier order that no further time would be allowed—Held: It is wholly
reasonable order.

S. M. M. Khansur
& Anr. Vs. Janata Bank 7BLT (AD)-2

Reasonable cost of repairs

The
reasonable cost of repairs is the second higher watermark in measuring the
indemnity in respect of unprepared damage. This is a necessary and inevitable
exercise, unless the parties had already arrived at a negotiated figure.

Sadharan Bima Cor.
Vs. Bengal Liner Ltd. & Anr. 5BLT(AD)-69

The records of the case

The
words the records of the case appearing in Section -241A mean the records of
the prosecution.

Mohammad Nazrul
Islam Chowdhury &Ors. Vs. Abul Bashar Chowdhury & Ors. 8 BLT (HCD)-220

Res-Judicata

Title
suit 71 of 1976 of the contesting defendant was a suit for declaration that the
order passed by the C.O. (Ref) in Redemption case 2 of 1973, is illegal without
jurisdiction and non-permanent injunction. The suit of the plaintiff being
Title Suit 8 of 1989 is for redemption of mortgage and for khas possession and
for declaration that the decree passed in Title Suit 71 of 1976 is illegal and
not binding upon the plaintiff. Not only cause of action and subject matter are
different.

Held:
The decision on Title Suit 71 of 1976 is not bar, by res-judicata, in deciding
the present Title Suit 83 of 1989.

Rajiuddin Chawdhury
Vs. Suruj Ali 3BLT (HCD)-135

‘Right’

The word
‘right’ is used to mean a primary or substantive right, and this proposition
that the law of limitation does not extinguish the rights but only bars the
remedy, as argued by the learned Advocate is true, if the word is understood in
a restricted sense only. For a remedy is also right in the wider sense of the
word, a secondary, right, a remedial or procedural right as it is often called,
and limitation undoubtedly extinguishes such a procedural right. A person can
enforce his substantive right, even though time-barred, if there are other
legal remedies available for the enforcement of the same. But, in the present
case the remedy being enforceable in law and there being no remedy available
under the law, this primary or substantive right of the plaintiff was lost by
the law of limitation.

Idris Ali Bhuiyan
Vs. Enamul Haque 9 BLT (AD)-194

Right to Freedom of Speech

Every
citizen has the right to freedom of speech and expression as guaranteed by
Article 39 of the Constitution. This right is not absolute, but subject to
reasonable restrictions imposed by law in the interests of the security of the
State, friendly relations with foreign states, public order, decency or
morality, or in relation to contempt of Court, defamation or incitement to an
offence.

Halima Farzana Vs.
Bangladesh & Ors. 7BLT (HCD)-86

Rules of Law and Procedures

Rules
and procedures are prescribed as means for advancing the case of justice. A
Court of law while administering justice must conform to the rules of law and
procedures and in cannot violate these in the name of interest of justice.

Sk. Shorab Ali Vs.
Gazi Abdur Rashid & Ors. 9 BLT(HCD)-433

‘Salary’

The word
‘Salary’ does not include the term ‘pension’. Those terms denote and confer
distinct and different rights.

Chief Election
Commissioner & Ors Vs. Bangladesh & Ors. 13 BLT (HCD)29

Serious

In
Special Powers Act- The words ‘serious’ may mean and include to be grave, critical,
important, approaching the critical or dangerous concurred with wightly
matters. The said meaning are not exhaustive but narrative one. Serious in
nature would always depend upon the facts and circumstances of a particular
case.

Mrs. Arati Deb
Vs.Govt. of Bangladesh & Ors. 12 BLT (AD)205

Shall

The
construction of the word “shall” occurring in a statute depends on the setting
in which the expression appears, the object for which the direction is given
and the consequences that would follow from the infringement of the direction.
Keeping these principles in view we are of the opinion that the provision of
Order 11, Rule 8 of the Code of Civil Procedure is directory in character and
the court is yet possessed of powers to extend time in a proper case.

Bisheswar
Bhattacharjee & Ors Vs. Shantimoy 8BLT (AD)-67

Show Cause Notice

A show
cause notice is not a technical requirement or an idle ceremony. The notice
must not be Vague or in bare language merely repeating the language of the
statute—The principle of a meaningful show cause has been highlighted when a
person is called upon to meet or explain some charges brought against him — in
not giving specific facts with particulars in the show cause notice, the rule
of fairness which is a part of the principle of natural justice has been
offended.

Govt. of Bangladesh
& Ors Vs. Md, Tajul Islam 5BLT (AD)-186

A Statement of accounts

A
statement of accounts to be filed in court must show the details and giving
debit entries, and if debit entry relates to interest then setting out also the
rate of interest and the period for which, the interest was charged.

Uttara Bank Ltd. Vs.
Mrs. Ayesha Siddique & Ors. 12BLT(HCD)-106

“Subject to”

In
Black’s Law Dictionary, 5th Edition, “subject to” means ‘liable, subordinate,
subservient, inferior, obedient to, governed or affected. by, provided that,
provided, answerable for. Biswas and Mitra (afore quoted) quote Balkrishna v.
State of Madras, A1R1961 (SQ l152, to say, “The words ‘subject to” have
reference to effectuating the intention of the law and the correct meaning is
“conditional upon’. So does Perm’s Judicial Dictionary, Vol,(iv), quoting
another unreported Indian Supreme Court case. Words and Phrases (afore quoted),
Vol. 40, describes “subject to” as meaning ‘conditional upon’ or ‘depending
on’. or ‘subordinate to’ or ‘inferior to’.

Bangladesh Air
Service (Pvt.) Ltd. Vs. British Airways PLC. 5BLT (AD)-242

Sufficient Interest

What is
meant by sufficient interest is basically a question of fact and law which
shall have to be decided by the court. None of the fundamental rights like rule
of law is subject to mechanical measurement. They are measured in our human
institution i.e. the courts and by human beings i.e. the Judges by applying
law. Therefore, there will always be an element of discretion to be used by the
court in giving standing to the petitioner. From the above, it appears that the
courts of this jurisdiction has shifted its position to a great extent from the
traditional rule to standing which confines access to the judicial process only
to those to whom legal injuries caused or legal wrong is done. The narrow
confines within which the rule of standing was imprisoned for long years have
been broken and new dimension is being given to the doctrine of locus standi.

ETV Ltd. And. Vs.
Govt. Of Bangladesh & Ors. 10 BLT (AD)-108

Vakil and Pardanashin

Now a
days, these two words vakil and pardanashin are obscure, obsolete and almost
obscene for those who are going to marry by maintaining ceremonial congregation
and festivity at the expense of huge money. The condition of womenfolk has also
improved in the rural areas to a great extent both in education and social
perspective. This process, hopefully will continue. A daughter is not
pardanashin if she can read and write and if she cannot read and write, that is
a course upon the parents and the society.

Moulana Ruhul Mannan
Helali Vs. Government of Bangladesh & Ors. 11 BLT (HCD)-366

Waiver

“Waiver’
is, thus, an act of waiving, the act of intentionally relinquishing something
as a right, the act of not insisting upon such right, claim or privilege
belonging to person who executes the same, the voluntary surrender of a right,
the voluntary abandonment or surrender of a right known by him to exist.
“Waiver” is one of the most familiar of the Doctrines of law, a technical
Doctrine of very broad and general application.

A. Latif and Company
Limited Vs. The Project Director & Ors 12 BLT (HCD) 311

Whoever marries”

Section-494
of the Penal Code Act, 1860— the world “whoever marries appearing’ in the
section must mean whoever marries validly. If the marriage is not valid, it is
not marriage in the eye of law.

Butul Rabidas &
Anr. Vs. The State. 9BLT (AD)-145

Whether the
Plaintiff must get a decree on the basis of their acquisition of title by
adverse possession by possession of the suit land for more than 12 years

Admittedly
the ‘K’ schedule land was purchased by Shiv Chandra Majumder by a registered
kabala exhibit-I which was produced by the respondents. There is also no
dispute that by way of inheritance Rajani Kumar Majumder and Gopal Chandra
Majumder become the owners in the suit land. There is also no dispute that an
application was filed praying for restoration of possession of the suit land
against the respondents in Miscellaneous case No. 61 of 1964 — The respondents
claimed possession since March 30, 1948 and as such they acquired title in the
suit land by continuous possession for more that the statutory period before
filing of the Miscellaneous Case No. 61 of 1964.

Hafez Mohammad Abdul
Haque Vs. Ayub Ali & Anr. 4BLT (AD)-28

Whether the payment
has to be established before delivery or the delivery has to be made before
payment is established

By a
Memo of Agreement (MOA) defendant No. 1 a British Shipping Company, agreed to
sell the vessel in question to the buyer- plaintiff. Though the plaintiff
performed his part of obligation in all respects, the defendants failed to
perform their part of obligation and as a result there was a breach of contract
on the part of defendant No. 1, the plaintiff-petitioner claimed in the money
suit compensation and damages — The plaintiffs suit for compensation and
damages was partly decreed by the Trial Court. The Trial Court held that the
seller acted illegality by not making physical delivery of the vessel to the
buyer-plaintiffs as per terms of MOA—on appeal the High Court Division rejected
the contention of the plaintiff that acceptance of the vessel means acceptance
on delivery and allowed the appeal — Held: The High Court Division has rightly
held that in spite of clause 5 of the MOA the plaintiff had no obligation to
accept the vessel in terms of clause 3 of the MOA, to see that the vessel
answers the description given in the MOA. This provision was apparently
inserted to ensure that the rejection of the vessel does not take place after
delivery is made without payment Clauses 13, 15 and 18 of the MOA will come
into operation after establishment of the payment mentioned in clause 3 which
provides that the moneys secured by the L.C. in order to be releasable must be
supplemented by production of a number of documents, some by the seller, some
by the buyer. The buyer has to produce a document of acceptance of the vessel,
which the buyer did not.

M/S N. I. Khan &
Co. (Pvt.) Ltd. Vs. Festasi Shipping Co. S. S. & Ors. 4BLT (AD)-33

Whether the High
Court Division remanded the suit to the trial court

The suit
was decreed both by the trial court and by the lower appellate court — Held: It
appears that the First Commissioner’s report was not challenged by the
defendant and the same was accepted by the trial court. It is on record that
the Second Commissioner’s report was also submitted but none of the courts
below considered the Second Commissioner’s report which contradicts the First
Commissioner’s report to some extent — The 
learned Single Judge of the High Court Division rightly found that
non-consideration of the Second Commissioner’s report has affected the decision
in the case and remanded the suit to the trial court for proper adjudication.

Md. Shoibur Rahman
Vs. Mojibur Rahman 4BLT (AD)-169

Whether the
petitioners given any right for implementation of the judgment and order of the
Appellate Division and the Administrative Appellate Tribunal given in one
Atiqullah’s case

The
petitioners have not been given any right under the Administrative Tribunals
Act 1980 to move the Administrative Tribunal to implement the judgment and
order of the Appellate Division and the Administrative Appellate Tribunal given
in respect of a different person who filed successive cases not in a
representative capacity or in the nature of a group or class action but as an
individual applicant agitating his own individual grievances.

Md. Hafizuddin &
Ors Vs. Bangladesh Bank & Anr. 5BLT(AD)-179

Whether the High
Court Division fell into an error of law in sending back the case to the trial
court for a fresh decision after setting aside the concurrent judgment of the
two courts below

It
appears that learned Single Judge was of the view that some common question of
acquisition of right and title in both the schedules of the lands were involved
in the case and that unless the suit be remanded for retrial in respect of
schedule 2 land as well there would be a chance of conflicting decisions. He
was also of the view that the trial court and the appellate court arrived at
their findings on this schedule wrongly by refusing to accept some relevant
documents into evidence and without proper consideration of the evidence on
record, causing thereby a miscarriage of justice. Accordingly the learned Judge
came to the conclusion that the schedule 2 land should not be excluded from the
scope of the order remand passed by the lower appellate court. We do not find
any good reason to interfere with the impugned judgment of the High Court
Division.

Bakhtiar Meah &
Ors. Vs. Matika Khatoon & Ors. 5BLT (AD)-105

Whether the High
Court Division confirm the trial court’s assessment of compensation merely “for
ends of justice”

In the
present case the appellants are not challenging the quantum of damages awarded.
They are contending that there is no legal evidence worth the name in
determining the very basis on which compensation has been assessed. Both the
High Court Division and this Division too, upon granting leave, are competent
to decide this question. We have held that the High Court Division, before
endorsing the amount of compensation as allowed by the trial court totally
failed to consider the evidence on record in so far as the plaintiffs claim of
damages in schedule B of the plaint is concerned and also overlooked that there
was no legal evidence worth the name in support of the plaintiffs claim of
alleged loss and damage. We have also found that there was no evidence of
actual loss and damage sustained by the plaintiff and the High Court Division
cannot confirm the trial court’s assessment of compensation merely ‘for ends of
justice’ for assessment of compensatory special damage is a legal exercise
based on evidence on record and not an exercise in compassion and sympathy.

Serajul Islam
Chowdhury & Ors. Vs. Md. Jamal Abedin & Ors. 5BLT (AD)-158

Whether
the Exception 1 to Section 28 of the Contract Act validated conferment of
exclusive jurisdiction by the parties on English Courts ousting the
jurisdiction of local Courts

There is
nothing in Exception 1 to section 28 of the Contract Act prohibiting the
parties to a contract from choosing a foreign forum under the supervision of a
foreign court for arbitrating its disputes. Such contract does not offend the
main provision of section 28, because the local courts still retain the
jurisdiction to decide the list between the parties The appellant is free to
file a suit for damages against the respondent in the local court. The
respondent is also free to ask for a stay of the suit, pending arbitration, and
it is for the local court having regard to all circumstances, to arrive at a
conclusion whether sufficient reasons are made out (by the plaintiff) for
refusing to grant a stay. (Michael v. Serajuddin, A1R1963 (SC)l044 and also MA.
Chowdhury vs. Messrs. Mitsui O.S.K. Lines, Ltd., 22DLR(SC)334.

Bangladesh Air
Service (Pvt) Ltd. Vs. British Airways PLC. 5BLT (AD)-242

Whether an annual
lessee under the Government has legal right to challenge the impugned judgment
and order when his lessor has not done so

Held:
The petitioner claims himself as an annual lessee under the Government in
respect of the disputed land. The Govt. of Bangladesh does not challenge the
impugned judgment and order of the High Court Division. The relevant authority
on being satisfied that the original owner, Pran Gopal, is a Bangladeshi
decided that his property was wrongly listed as vested property and accordingly
passed the order to release the property from the list of vested property in
exercise of their authority under the relevant law. The petitioner as a
temporary lessee has no legal right to challenge the impugned judgment and
order when his lessor has not done so.

Md. Afazuddin Halder
Vs. Abu Mohammad Siddique & Ors. 5BLT (AD)-143

Whether the High
Court Division fell into an error of law in setting aside the order of remand
made by the appellate court and restoring the decree of the trial court

High
Court Division could not restore the decree of the trial court without
consideration of the evidence on record on merit.

Sree Chittaranjan
Chakraborty Vs. Md Abdur Rob 5BLT (AD)-135

Whether the
observations made by the High Court Division is bind to the trial court

Held: In
the instant case such observations do not bind the trial court and it is free
to take its own decision on the basis of materials placed and submissions made
before it.

Mrs. Zeba Khan Vs.
Play Pen School Anr. 5BLT (AD)-142

Whether the
statutory show cause notice as served on the respondent under section 14(1) of
the Emigration Ordinance, 1982 is legal and valid

By majority
decision the order of cancellation of the respondent’s licence (Annexure “H”)
does not show that the Govt. was either “satisfied” as required under section
14(1) or that the respondent’s long representation was ever brought to its
notice. The order, on the face of it, thus, was a bad order in the eye of law.

Govt. of Bangladesh
& Ore Vs. Md. Tajul Islam 5BLT (AD)-186

Whether the
executing court can remit the interest as decreed

It is
well-settled law that the executing Court in required by law to execute the
decree as it stands and it cannot go beyond of the decree in any way.

Mir Amanullah Vs.
National Cold Storage Ltd. & Anr. SBLT (HCD)-88

Whether the District
and Sessions Judge to dispose of contempt matter

The
District and Sessions Judge had no jurisdiction or authority to dispose of
contempt matter in view of the contempt of Court Act.

Subbatara Begum Vs.
Ansaruddin. 5BLT (HCD)-191

Whether the
Jurisdiction of the Artha Rin Adalat to entertain an application under Article
33 of the Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. No. 128 of 1972)

A
Subordinate Judge acting as an Artha Rin Adalat cannot entertain such an
application directly.

Bangladesh Shilpa
Rin Sangstha Vs. Fashion Wear Ltd. 6BLT (AD)-124

Whether Section 24
of the Non-Agricultural Tenancy Act, 1949 is applicable to lands of Dhanmondi
Residential Area

The
object of section 85(2) of the Act was to retain control over non-agricultural
land held by a tenant under the Government unencumbered by the provisions of
the NAT Act. Section 81A(2) stated positively how the rights and liabilities of
non-agricultural tenants other than those who have become tenants under the
Government by virtue of compulsory acquisition of land shall be determined. The
NAT Act has not been mentioned to be a governing law in respect of such tenants
of non-agricultural land under the Government, Hence, on both accounts, under
section 85(2) of the NAT Act and section 81A(2) of the SAT Act, the ouster of
NAT Act from the categories mentioned therein are complete. Section 24 of the
NAT Act has no manner of application to lands of Dhanmondi Residential Area.

Md. Mosaddeque
Hossain Vs. Dr. Esmat Mirja & Ors. 6BLT(AD)-180

Whether the Martial
Law order dated 8.11.86 “with immediate effect” communicated vide dated 4.1.87 dismissing
the respondent from service was correct

We find
it well-nigh impossible to accept, rather physically impossible to accept the
proposition that an order affecting a person would be effective as against that
person without even informing him about the order by merely giving the order an
immediate effect. If it were to be so, then an absurd situation will arise; for
example, if an order of dismissal is passed with immediate effect and kept
under the pillow of the maker, then the dismissed person cannot attend office
from the next day because it has become effective as soon as the order was
passed. Nothing can be more offensive to common sense than to suggest that the
order will be operative without the person knowing that an order was passed
against him—We think it is a sound proposition that an order to be effective
must at least be communicated to the person concerned and the date of actual
receipt is not material for the said purpose. In the present case, it is
apparent that there was no communication of the order of dismissal until
4.1.87. MLO No. 9 having been repealed in the meantime, the light had gone out
of the order. The order was not communicated to the respondent when there was
light in it. The respondent was communicated about the order at a time when no
light could be put in the order. Therefore the order of dismissal qua the
respondent was not an order under the MLO. It could not be effective against
him at any time.

Bangladesh Vs.
Mahbubuddin Ahmed 6BLT(AD)-185

Whether written
Kabinnama or its registration, is essential in order to establish the validity
of Muslim marriage

If the
marriage is otherwise valid, absence of written kabinnama or its registration
does not invalidate the marriage.

Md. Chan Mia Vs.
Rupnahar 6BLT (HCD)-92

Whether a need to
protect the public servant from the propensity of politicisation of
administration

In the
present cases Commander Pilots working in a commercially-oriented Airlines are
not being selected for promotion to the selected post of Deputy Operations
Manager. Deputy Secretaries are being considered for promotion to the selected
posts of Joint Secretary. Additional Deputy Commissioners and the like are
being considered for a promotion to the selected posts of Deputy Secretary.
They have already put in a number of years in Government service which is basically
different from working as a Pilot in a Commercial Airline. Evaluation of their
efficiency, conduct, discipline, comprehension, initiative, zeal to work,
honesty, personality and various other requirements of service have been
recorded each year in their respective ACRs. That ought to be the most dominant
and persuasive document for the purpose of evaluating the candidates’
eligibility for the promotion post. The marks fixed for interview should be
minimum so as not to upset the accumulated credits achieved by the candidates
over the years in their respective ACRs by a momentary impression created in
the minds of the Interview Board before which the candidates cannot possibly
appear for more than a few minutes. There is a strong need to protect the public
servant from the propensity of politicisation of administration by a party
Government by keeping the marks for interview as minimum as possible so that
the scope of arbitrariness and the possibility of pick and choose are
absolutely minimized. We would therefore agree with the ultimate decision of
the learned majority Judges of the Special Bench that allocation of 40% marks
for interview in the context of the situation obtaining in our country and in
the context of the finding that the guidelines were arbitrarily and that 15%
marks for interview under the circumstances would be a safe marking system for
protecting the neutral character of public service.

Ministry of
Establishment Vs. Shafiuddin Ahmed & Ors. 6BLT (AD)-22

Whether that there
was no cause of action for filing of the suit as the threatened dispossession
by the defendant No. 1 does not exist after his death

The
question of fresh threat from the heirs of defendant No. 1 does not arise as
the suit was filed at a time when there was definite cause of action as
asserted in the plaint as such the learned Single Judge was not correct in
holding that there was no continuing threat to file the suit.

Most Saitan Bibi
& Ors. Vs. Chairan Bewa & Ors. 6BLT (AD)-157

Whether the evidence
on record has been duly considered in consequence of which the trial court’s
judgment was reversed

Held:
The learned Judge’s of the High Court Division without adverting to the
material evidence on record held that in hot haste before the completion of
survey report the plaintiff destroyed the stock of shrimps and prawns. In one
sentence the learned Judge’s of the High Court Division held that “the evidence
of PWs 2-5 didn’t inspire any confidence.” This is indeed a perfunctory
assessment of the evidence on record by a court of fact and consequently the
modification of the trial Court’s judgment has been done in a slipshod manner.

Chalna Marine
Products Ltd. Vs. Reliance Insurance Ltd. 6BLT (AD)-234

Whether the
Bainapatra deeds are genuine or created documents through acts of forgery

The
Bainapatra deeds were alleged to have been executed on 22.10.71 and 13.12.71.
On a close scrutiny of the Bainapatra deeds it appears that one Bainapatra deed
had been written on a stamp paper and another written on a cartidge paper
purchased in the year 1969. Exhibit-8 is a kabala deed dated 4.8.71 which was
executed by defendant No. 7 in favour of the father of defendant nos. 1-5. It
is recited in the said kabala deed that following the alleged agreement,
defendant No. .7 transferred the suit land in favour of the father of the
defendant nos. 1-5. Ethibit-4 is a deed of reconveyance executed by the father
of defendant nos. 1-5 in favour of defendant No. 7. From the above, it reveals
that at the time of the alleged execution of the Bainapatra deeds, the
defendant No. 7 was not the owner of land, and, as such, the Bainapatra deeds
by a person who was not the owner of the land got no legal force and also legal
existence in the eye of law. In the written statement filed on 27.9.1996 by the
defendant nos.l-5, defendant Nos. 4 and 5 had been shown as minors but in the
Bainapatra deed exhibit-F, it was not at a!! recited that the defendant No. 5
had been minor at that time. Exhibit-I, a School Certificate duly proved by the
Head Master of the concerned school is an evidence to show that the defendant
No. 5 was born only on 24.6.1974. The matter, thus, became manifestly clear
that the defendant No. 5 was not at all born on the date of the alleged
execution of Bainapatra i.e., in the year 1971. Both the courts below on a
proper, consideration and discussion of the legal evidence and other materials
on record came to the positive finding that the Bainapatra deeds Exhibits-F and
Fl are totally false and are acts of forgery. On consideration of the materials
en record I do not find any reason to disagree with above the findings arrived
at by the courts below.

Zamiruddin Ahmed Vs.
Md. Ziaul Haq & Ors. 6BLT (HCD)-5

Whether fraud was
practiced in obtaining the documents

In the
present case, from the fact that it was alleged by the defendant that the
executant who is an illiterate and unsophisticated rural lady was identified by
her husband at the time of registration but it is in evident that she was
allegedly identified by a different person. So there was none to give
independent advice to the executant of the document—It is there that the
documents were obtained by fraudulent means.

Barada Sundari Vs.
Makhan Chandra Das 6 BLT (HCD)-210

Whether the order of
the learned Munsif appears to be the non-application of a judicial mind

Since
the learned Munsif received the petitioners’ application for staying further
proceedings of the suit on 6.5.1987 for enabling the petitioners in move the
High Court Division against the rejection of their prayer for being added as parties
to the suit, in all fairness and in conformity with judicial courtesy, the
learned Munsif ought to have allow d some reasonable time to the petitioners to
move this court for vindication of their observance and he should have stayed
his hands off the proceeding for the time being. After disposal of the suit by
order dated 6.5.87 there remainders title sense in fixing 13.5.87 for
considering the petitioners’ application for staying further proceedings of the
suit. The order of the learned Munsif appears to be the result of a bundle of
confusions and, non- application of a Judicial mind and it cannot be approved.

Mst. Halima Khatoon
& Ors. Vs. Nurul Huda Mondal & Anr. 6BLT (HCD)-1

Whether Impugned
judgment is not a proper judgment of reversal

In the
instant case the appellate court did not advert the reasonings of the trial
court and also did not discuss the material evidences which were considered by
the trial court and these hit the root of the merit of the case—and it also
appears that the appellate: court also did not comply with the requirements of
Order 41 Rule 31 of the Code of Civil Procedure in delivering the impugned
judgment—Held: The impugned judgment and decree is not a proper judgment of
reversal— relied on 1997 BLT (AD) 15.

Md. Harejuddin Mondal
Vs. Md. Palu Sarder & Ors. 7BLT (HCD)-229

Whether the High
Court Division was wrong in relying upon the firisti, Ext-i, in coming to the
finding of relationship of land lord and tenants between the parties when the
original documents claimed to be filed by the plain-tiff were not on the record

The
learned Single Judge of the High Court Division, following the trial court,
committed serious 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. Consequently, he wrongly held that there exists relationship of landlord
and tenant between the parties.

Chandan Mondal &
Ors. Vs. Md. Abdus Samad Talukder & Anr. 7BLT (AD)-223

Whether the
Government, aggrieved by the observations of the Appellate Tribunal that the
circular dated 28-7-76 was only for executive guidance having no statutory
force

We find
that in the facts and circumstances of the case the Appellate Tribunal need not
have gone into the question as to whether the circular in question was only for
executive guidance with no statutory force. It was enough for the purposes of
the case to decide whether the respondents were entitled to a show cause notice
before their appointments were cancelled in view of the fact that they were
appointed by the appointing authority himself and that they had no hand in the
procedural mistake. Both the tribunals below having held concurrently that the
respondents had acquired a vested right on being appointed to the post of
steno-typist on getting letters of appointment from the appointing authority
and that their appointments could not be cancelled unilaterally it was not
necessary to further explore whether the circular in question had any statutory
force or not.

Government of
Bangladesh Vs. Md. Abdul Male Miah & Ors. 7BLT (AD)-266

Whether the document
cannot be considered as antedated

Use to
different pen and ink cannot be a reason to believe that the document is
antedated — the document cannot be considered as antedated only because the
schedule was written by a different pen using different ink.

S. J. Chowdhury
& Ors Vs. Abdul Jabbar & Ors. 4BLT (HCD)-63

When the prayer for sending a disputed
document to a hand writing expert for examination be rejected

In title
suit the plaintiffs seeking a declaration that certain khatians in favour of
the defendants were wrong—for which they want to be examined by an expert the
petitioners did not take any step for such examination when they got knowledge
about the disputed document of the defendant and that the petitioners belated
prayer for expert examination be rejected.

Abdul Latif &
Ors. Vs. Altafur Rahman & Ors. 2BLT (AD)-56

On an
application seeking retirement the Corporation released the respondent from the
service with all financial benefits. Whether the respondent can challenge such
release order and High Court Division can put him back in service on a writ
petition.

Bangladesh Parjatan
Corporation. & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49

Whether Partial
Partition Maintainable

The
general rule that all the joint properties should be included in a suit for
partition is not an inflexible one. It can be relaxed and partial partition
allowed, where it is not proved that the parties will be prejudiced or in
convenience by such partition.

Safaruddin &
Ors. Vs. Faziul Haq & Ors. 5BLT (AD)-129

Whether the
statutory show cause notice as served on the respondent under section 14(1) of
the Emigration Ordinance, 1982 is legal and valid

By
majority decision — the order of cancellation of the respondent’s licence
Annexure “H” does not show that the Govt. was either “satisfied” as required
under section 14(1) or that the respondent’s long representation was ever
brought to its notice. The order, on the face of it, thus. was a bad order in
the eye of law.

Govt. of Bangladesh
& Ors. Vs Md. Tajul Islam 5BLT(AD)-186

Whether a company
take money as loan and give interest

Company
not being a financial institution cannot take money as loan and give interest.
Under Company Law if money is required by the company it may take it by way of
issuing debenture and pay interest etc. The company cannot make payment either
by way of interest or otherwise unless sanctioned by law.

A. K. M. Abdul Latif
Vs. M/S Banani Metal Ltd. 7BLT (HCD)-258

Whether any conflict
between the Companies Act and the Trade Organisations Ordinance, 1961

Held: I
am of the view that in the case of a trade organisation, provisions of the
Companies Act shall be applicable, subject to the provisions of the Trade
Organisations Ordinance. Thus I find no conflict between the Companies Act and
the Trade Organisations Ordinance, 1961.

Ibrahim Cotton Mills
Ltd. Vs. Chittagong Chamber of Commerce & Industry Ltd. & Ors. 7BLT
(HCD)-152

Whether the High
Court Division was wrong in directing the release of the goods on payment of
duty at a confessional rate without the condition of furnishing bank guarantee
for the balance to protect the interest of public revenue.

The
interim order passed by the High Court Division will be subjected to furnishing
of a proper bank guarantee by the writ petitioner for the balance duty that it
may be called upon to pay ultimately.

The Commissioner of
Customs Vs. Partex Beverage Ltd. & Anr. 7BLT (AD)-23

Whether the
supplementary duty can be imposed upon the goods imported by the petitioner in
Law

The High
Court Division in rejecting the application for stay was of the opinion that
this is precisely the subject matter of the Rule Nisi itself. If the duty is
paid it will be added to the value of the goods and the petitioner will be at
liberty to sell the goods to the customers with the added value; but if the
petitioner succeeds in making the Rule Nisi absolute, then they will get refund
of the excess amount paid—we endorse the reasonings given by the High Court
Division in rejecting the application for stay.

Shah Dairy Products
Ltd Vs. Commissioner of Customs & Ors. 7BLT (AD)-231

Whether the High
Court Division upon total misconception of plaintiffs case and by making out a
third case under section 16 of the Land Acquisition Act, 1894 acted illegally
in setting aside the decree of the lower appellate court and in decreeing the
suit.

Having
considered the admitted facts that the suit land along with other lands had
been acquired by the Government in 1941-42 for the purpose of setting up of
Noakhali Sadar Head Quarters and that thereby the Government became its owner
and the accordingly both R.S. and S.A. record have been prepared in the name of
the Government, the lower appellate court rightly held that the plaintiffs was
have no right, title and interest in the suit land have also no locus standi to
question the lease granted by the Government of its khas land to defendant
No.1. The lower appellate court further held that in respect of the acquired
land, the court cannot direct the Government to lease out the suit land to the
plaintiffs simply because their predecessors—in-interest as the original owners
had been in possession even after acquisition. It does not appear either from
the judgment of the trial court or from the lower appellate court that the
plaintiffs had ever made out any case under section 16 of the Land Acquisition
Act, 1894, namely that no award regarding compensation for acquisition of the
land was prepared by the Government or the original owners did not receive any
compensation for acquisition in question. It appears that the learned Judge of
the High Court Division upon making out a third case, on consideration of
section 16 of the said Act, has wrongly reversed the decree of the lower
appellant court and decreed the suit wrongly holding, inter alia, that although
the land had been acquired by the Government as far back as in 1941 the same
did not absolutely vest in the Government free from all encumbrance because the
Government did not take physical possession thereof in pursuance of the
acquisition in question. Moreover the learned Judge of the High Court Division
was not justified in considering the trial court’s finding that defendant No.1
is a monthly tenant in respect of the suit land, overlooking that the lower
appellate court rightly held that the plaintiffs, who have no right, title and
interest in the suit land, had no legal authority to induct defendant No.1 as a
monthly tenant in the suit land.

Govt of Bangladesh
& Ors. Vs. Bahar Mw & Org. 8 BLT(AD)-121

Whether the High
Court Division rightly Considering the decision reported in 14BLD(AD)20

It
appears that the learned Single Judge on due consideration of evidence came to
the finding that the appellant waived her right of preemption by refusing to purchase
the land transferred at the earliest opportunity and that she is stopped from
repurchasing the land. The learned Jude in so holding rightly relied upon the
decision in the case of Akhlasur Rahman & ors. Vs. Safarullah & ors. 14
BLA(AD) 20. In Akhlasur Rahman this Division held “………that the right (right of
preemption) can be waived or relinquished at an earlier date than on date of
actual completion of sale under the law or thereafter”.

Most. Rokeya Begum
Vs. Md. Abu Zaher & Ors. 8 BLT(AD)-134

Whether the orders
of punishment are violative of the principle of natural justice.

In the
instant cases the petitioners were given ample opportunity for hearing and they
never asked for copy of the report of the fact-finding committee-petitioners
are dismissed.

Md.
Harun-Or-Rashid& Ors. Vs. BUET & Ors. 8 BLT(AD)-156

Whether for absence
of the plaintiff appellant from Bangladesh for certain years his citizenship
will cease or he will retain his citizenship legally because he is by birth a
citizen of Bangladesh and his parents were also permanent residents of
Bangladesh.

Held:
The Citizenship by birth is a complete legal right and averted constitutional
right which cannot be taken away or denied or lost to a particular citizen for
his temporary absence from Bangladesh or for his residence in any other country
for a considerable number of years unless and until it is found that the
particular citizen of Bangladesh abandons or renounces his citizenship of
Bangladesh and acquired citizenship of another Country.

Annada Prasad Das
Vs. Dy Commissioner & Ors. 9 BLT (HCD)-456

Whether the suit for
partition without a suit for declaration of title and possession is not
maintainable.

Since
both the parties accept Taherun Nessa as the original owner and since the
contesting defendants could not prove by any documentary evidence that Taherun
Nessa exhausted all her interest in the suit property, the plaintiffs claim of
co-sharership with regard to .04 decimal of land and also their claim of ejmali
possession cannot be brushed aside. The contesting defendant did not challenge
the genealogy as asserted by the plaintiffs. In that view of the matter, the
final curt of fact recorded a finding that after settlement and transfer
Taherun Nessa retained .04 decimals of land in the jote and that the plaintiffs
being the heirs of Taherun Nessa are in ejmali position in facts it is not
necessary that the plaintiffs is to pray for declaration of title the recovery
of possession but a simple suit for partition is quite maintainable.

Abdul Malek Khan
&Ors. Vs. Begum Nurjahan Haque & Ors. 8 BLT (HCD)-274.