Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Constitution of Bangladesh, 1972
Section/Order/Article/Rule/Regulation Head Note
Preamble

Amendment of – Preamble now is an entrenched provision of the Constitution that cannot be amended by the Parliament alone. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Preamble

Pole star of the Constitution­ – One of the fundamental aims of our society is to secure the rule of law for all citizens and Part VI (Judiciary) and other provisions have been incorporated in the Constitution in furtherance of that aim. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Preamble and Articles 7 and 8–

Contention that Parliament has unlimited power is unsound–Neither Preamble nor Article 8 can be amended except by referendum–Article 7 stands between the Preamble and Article 8 as statute of liberty, supremacy of law and rule of law–It is the pole star of our Constitution. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Preamble & Articles 7, 8, 26, 44, 100 &

Preamble & Articles 7, 8, 26, 44, 100and142 (1)(1A)–
Interpretation of Constitutional provisions – Our Constitution is a controlled one. There is limitation on the legislative capacity of Parliament­. Preamble and Article 8 is unamendable except by referendum. The Constituent power is with the people of Bangladesh–Exclusiduary provision of the kind incorporated in Article 26 by amendment has not been incorporated in Article 7–Law in Article 7 includes an amending law–Contention of the Attorney–General about the non–obstante clause in Article 142(1) is bereft of any substance as that clause is merely an enabling provision for amending the Constitution but by interpretative decision that clause cannot be given the status for swallowing up the constitutional fabric. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Preamble and Articles 27, 31, 32, 44 &

Preamble and Articles 27, 31, 32, 44 and 94 to 116A–
The amendment is being struck down on the ground of the amendment's irreconcilability with rule of law as envisaged in the preamble.
Court in unitary state and in Federal State­–Distinction pointed out–Only one Court with full plenary power in the unitary state and in the Federal state over the whole state–Our founding fathers have devised a composite Supreme Court to emphases the oneness of the Supreme Court­. Supreme Court was bifurcated into Supreme Court and High Court in 1976 but was restored to its original position. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 2(a),55, 142(2) and 143(2)

Treaty involving cession of territory of Bangladesh. (Delhi Treaty effected on 16th May 1974)— Constitutional requirement—
Though treaty-making powers of the Government fall within the ambit of the executive power under article 55(2) of the Constitution, a treaty involving determination of boundary and more so involving cession of territory can only be concluded with the concurrence of Parliament by necessary enactment i.e. in case of determination of boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a) of the Constitution by a recourse under article 142. Kazi Mukhlesur Rahman Vs. Bangladesh. 26 DLR (SC) (1974) 45. ....View Full Judgment

Article 2A

Being in line with the addition made by the Proclamations (Amendment) Order, 1977 (Proclamation Order No.1 of 1977) in the preamble, another military ruler passed the Constitution (Eight Amendment) Act, 1988 in a rubber stamp Parliament on June 9, 1988. The Eight Amendment incorporated fundamental changes in the constitution by incorporating a new clause as article 2A. This new article introduced Islam as the State religion, which was not in the 1972 constitution. Introduction of State religion was also in direct conflict with “secular-ism,” which was one of the fundamental principles of State policy in the 1972 constitution. Despite the Parliament revived “secularism” as one of the fundamental principles of State policy by passing the Constitution (Fifteenth Amendment) Act, 2011, it retained article 2A.
Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others (Civil) 10 ALR (AD) 1-220 ....View Full Judgment

Article 7

Parliament is the creation of this Constitution and all powers follow from this article namely, Article 7. No Parliament can amend this. On the revival of the Constitution after being suspended, Article 7 stood revived. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 7

Article 7 does not contain empty phrases. It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. Per Mustafa Kamal J delivering The Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Coontrol and others 49 DLR (AD) 1. ....View Full Judgment

Articles 7, 8, 11 & 28 (4)

Indirect election for reserved seats whether destroyed the principle of democracy–A system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Clause 4 in Article 28 provides that nothing in that Article shall prevent the State, which expression includes Parliament, from. making special provision in favour of women as done by Act No. 38 of 1990. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. ....View Full Judgment

Articles 7 and 26

Interpretation of statute Constituent power'–Where this power is vested in Parliament–Whether the 'Constituent power' is a derivative one making the amendment immune from challenge–validity test–An amendment of the Constitution is not included in law' within the meaning of Article 7 in the same way as it is not law in Article 26. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 7, 26, 142 and 152

Law as defined in Article 152–Any law inconsistent with the Constitution shall, to the extent of such inconsistency, be void– Then judiciary is to consider the validity or otherwise of a law (Act of Parliament) and declare it void if it is in conflict with Article 7. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 7, 80(4) and 142(i)(ii)

Interpre­tation of Constitution–The laws amending the Constitution are lower than the Constitution and higher than the ordinary laws–Difference of legislative process for passing legislations under Article 80(4) and Article 142(i)(ii) distinguished – Basic feature–The fabric of the Constitution cannot be dismantled by Parliament–The amendment is to be tested on the touchstone of Article 7. Anwar Hussain Chowdhury vs Bangla­desh 41 DLR (AD) 165. ....View Full Judgment

Articles 7 and 152

Whether the expression 'any other law' occurring in sub–article(2) of Article 7 would also include a law amending the Constitution itself enacted under the 'Constitutent power' inasmuch as the same way as an ordinary law encted under the ordinary legislative power­The contention that constituent or legislative, Parliament derives the power from the Constitution and that law amending the Constitution having a higher status should be subjected to Article 7 for examining its legitimacy as any other law is not acceptable. Anwar Hussain Chowdury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 7(1), 59 & 152(1)

"Administrative unit." Article 152(1) has given a particular meaning of "Administrative unit". In this Article the words "district or any other area" are to be read conjunctively, and if it is done, a district is found to be an administrative unit, and for the purpose of Article 59, that is to say, for establishing a Local Government there, no designation by law is necessary. But as regards "any other area" it will be an administrative unit" only if it is specifically designated as such by law. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Articles 7(2), 94 and 100(5)

Interpretation of Constitutional provision–Sub–article (5) of Article 100 has destroyed the structural pillar of the Constitution as embodied in Article 94–Sub­article (5) has also brought itself within the mischief of Article 7(2). Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 7

Article 7 ensures the supremacy of the constitution. It may be reiterated that the Supreme Court is not only an independent organ of the State, but it also acts as the guardian of the constitution. It is the Supreme Court that ensures that any law that which is inconsistent with the constitution will be declared void in exercise of the judicial review by reference to articles 7(2) and 26. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Articles 8–25

Fundamental Principles of State Policy cannot be judicially enforced despite the supremacy of the Constitution recognised by our Constitution. It is judiciary that has to say the last word even in matters of propriety of legislation. The concept of legislative supremacy imported from the soil of a developed country cannot be transplanted into the soil of a developing nation which has a nascent democracy as it is in Bangladesh. Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30. ....View Full Judgment

Article 8

Absolute trust and faith in the Almighty Allah necessarily mean the duty to protect his creation and environment. The appellant is aggrieved, because Allah's creations and environment are in mortal danger of extinction and degradation per Mustafa Kamal J delivering the Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. ....View Full Judgment

Articles 8 & 8 (IA)

The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an: (Mustafa Kamal J). Hefzur Rahman (Md) vs ShamsunNahar Begum and another 51 DLR (AD) ....View Full Judgment

Articles 8, 48, 56, 80, 92A and 142(1A)­

Preamble–Referendum–Whether the Preamble can be amended–Whether the Preamble is a part of the Constitution. Whether the Preamble is part of the Constitution or not as it has been the case in some other country. Article 142(1A) stipulates that a Bill for amendement of the Preamble and provisions of Articles 8, 48, 56, 80, 92A and Article 142 when passed in the Parliament and presented to the President for assent "the President shall within the period of seven days after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to". Hence the Preamble can only be amended by referendum and therefore is a part of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 9

Fundamental Principles of State Policy are not justiciable in court.
Parliament is a creation of the Constitution itself; the local elective bodies are created by their respective statutes in pursuance of Article 9 of the Constitution, which appears in Part II relating to Fundamental Principles of State Policy. These Principles, though they must be applied by the State in the making of law, are not justiciable in court. The main function of Parliament is law making, that is, legislative, whereas the main functions of local bodies are executive in nature. Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30. ....View Full Judgment

Article 9

Article 9 of the Constitution contains policy matter of the Republic for the attainment of which endeavour shall have to be made by the State–The Court is to go by the law as it is. Mosharraf Hossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113. ....View Full Judgment

Articles 9 & 11

Fundamental Principles of State Policy–Such principles, though fundamental to the governance of the country, are not judicially enforceable and the reason is obvious–They are in the nature of people's programme for socio–economic development in peaceful manner, not overnight, but gradually. Implementations of these programmes require resources, technical know–how and many other things. Whether all these pre–requisites for a peaceful socio–economic revolution exist is for the State to decide. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Articles 14 and 34

Function of a Trade Union—Function of a trade union is to promote the interest of the workers, not to carry on business — The interest of workers will not be furthered if the union of workers is appointed stevedore and handling contractor—Appointment of stevedores and handling contractors by public auction does not result in forced labour. Bangladesh Inland Water Transport Authority Vs. Bangladesh I. W. T.A. Ghat Sramik Union and another, 2 BLD(AD)83 ....View Full Judgment

Articles 14 &102

Transparency in the decision making as well as in the functioning of the public bodies is desired and in the matter where financial interest of the State is involved transparency of the decision making authority is a recognised matter. The judicial power ofreview is exercised to rein in any unbridled executive functioning. Hyundai Corporation vs Sumikin Bussan Corporation & others 54 DLR (AD) 88. ....View Full Judgment

Articles 18(1), 31 and 32

No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life. .....Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125] ....View Full Judgment

Article 21

Abnormal situation–Judges' duty–Two alternatives open to them, either to resign or to hold on to the post–Future of the Constitution lies in the commitment of the citizens who are obliged under Article 21 to observe the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 22, 94(4), 116A and 147

The independence of the judiciary is the foundation stone of the constitution–
The independence of the judiciary is the foundation stone of the constitution and as contemplated by article 22, it is one of the fundamental principles of State policy. The significance of an independent judiciary, free from the interference of other two organs of the government as embodied in article 22 has been emphasized in articles 94(4), 116A and 147 of the constitution. There has been a historic struggle by the people of this country for independence of judiciary, to uphold the supremacy of the constitution and to protect the citizens from violation of their fundamental rights and from exercise of arbitrary power. In Anwar Hossain (supra) this court observed that “Democracy, Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary, Fundamental Rights are basic structures of the Constitution” (emphasis supplied). Therefore, the constitutional principle of independence of judiciary precludes any kind of partisan exercise of power by the Parliament in relation to the judiciary, in particular, the power of the Parliament to remove the Judges of the Supreme Court. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Articles 23 and 24

The property concerned bears great historic and cultural significance being the tenement where the most illustrious star in the galaxy of Bengali film, Suchitra Sen was born in. She is our Pride (but not Prejudice) and shall live as our invaluable heritage till the twilight of civilisation. It is no exaggeration to say that the Government is saddled with a constitutional duty to adopt measures required for its protection under Article 23 and 24 of the Constitution. Furthermore, it would be inequitable to try to hold the authorities to their purported promise not only because of their constitutional obligation to protect and preserve it but also because plunging the government to the claimed promise would mean depriving the nation of a prodigious relic.
Md. Ayub Hossain Khan-Vs-Human Rights and peace for Bangladesh, represented by its Secretary, Advocate, Asaduzzaman Siddique and others. 4 ALR (AD) 2014 (2) 89 ....View Full Judgment

Articles 26 and 27

Whether the disqualifi­cation clause in section 7(2)(g) of UP Ordinance, 1983 offends the equality clause in Article 27 of the Constitution of Bangladesh.
As there has been no corresponding disqualifi­cation for a person seeking election to the Parliament, though he has alike defaulted in repayment of the same kind of loan, it is contended, the disqualification provision offends Article 27 of the Constitution of Bangladesh which provides that "all citizens are equal before law and are entitled to equal protection of law," and as such, section 7(2)(g) being discriminatory in nature should be struck down in terms of Article 26 of the Constitution. Sheikh Abdur Sabur vs Returning Officer 41 DLR (AD) 30. ....View Full Judgment

Articles 27 and 29

Discrimination pay scale–
The writ-petitioners have been discriminated in the matter of fixation of their pay scale. It is an admitted fact that the writ-petitioners and some other similarly situated employees of Bangladesh Railway, were getting same pay and they were allowed the same pay scale in the National pay scale of 1973 also. But in the national pay scale of 1977 the writ-petitioners were given lower pay scale while those other similarly situated employees were given higher pay scale. It is also not disputed that the writ-petitioners persuaded the authorities concerned to rectify this discrimination/inequalities and the authority concerned also made some attempts to rectify this discrimination in the pay scale of the writ-petitioners, but all those attempts were unsuccessful. In the circumstances the High Court Division rightly made the rule absolute. Articles 27 and 29 We also find that the writ-petitioners are entitled to get higher pay scales which are being enjoyed by the other employees who were similarly situated with the writ-petitioners and were enjoying similar pay scale till the national pay scale of 1977 came into force. This appeal be dismissed on contest without any order as to cost. …Bangladesh Railway =VS= Station Master-O-Karmochari Union, (Civil), 2019 (2) [7 LM (AD) 48] ....View Full Judgment

Article 27

The functions of the members of Parliament and the members of the Union Parishad differ widely.
Local Authority, although representative bodies chosen by adult franchise, have not the autonomy of the Parliament. Indeed they are dependent on Parliament for their powers. The powers of a local authority derive from status and they are exercised subject to the rule of ultra vires. It is true both the members of the Parliament and the members of local councils are elected by the same voter; but their respective functions differ widely. Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30. ....View Full Judgment

Article 27

Equality before law–The term "equality before law" should not be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special quality and characteristics which some of them may possess but lacking in others.
In the instant cases the impugned classification as I find was necessary in view of the circumstances under which ad–hoc appointments were made and allowed to continue for indefinite period and this classification got reasonable basis having nexus to the object to be achieved, that is, to do justice to these ad–hoc appointees by including in their service the period they served on ad–hoc basis. This benefit has been uniformly distributed to all the officers– Those who had been regularised earlier through the PSC and those who were regularised under the Ad–hoc Appointment Regularisation Rules, 1983. Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19. ....View Full Judgment

Article 27

Barring a thrice–elected member of the managing committee of a co–operative association to stand for election again till the lapse of 2 years since his last term expired as provided in section 19(2) of the Co–operative Societies Ordinance is not an unreasonable restriction. Abdus Sattar vs Bangladesh 45 DLR (AD) 65. ....View Full Judgment

Article 27

The two types of power given to the Registrar under section I 0 of the Industrial Relations Ordinance, 1969 and section 5 of the Amendment Act, 1990 are dissimilar in their operation and field of application. There can be no parity of application of the two sections. Tbe amendment cannot be said to have violated Article 27 of the Constitution. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. ....View Full Judgment

Article 27

The pensioners of various categories being not on same and equal footing their classification is not illegal and violative of Article 27 of the Constitution. For the purpose of calculation of pension the classification of pensioners on the basis of the last pay drawn is a real and rational classification. Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr 51 DLR (AD) 121. ....View Full Judgment

Article 27

The embargo on banks, insurance companies and other financial institutions to nominate its directors on the Board of a financial institution is based on a reasonable classification. City Bank Limited and others vs Bangladesh Bank and others 51 DLR (AD) 262. ....View Full Judgment

Article 27

Law requires that subsequent change of terms and conditions of tender must be relayed to each and every participant so that all of them can avail of the equal opportunity while participating in the tender. Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD) 130. ....View Full Judgment

Article 27

Writ Jurisdiction–Transpa­rency–On review of the process adopted in giving licence to Ekushey Television, the conclu­sion is that there exists more than one evaluation report bearing the same number and date and one of them is changed to the advantage of ETV. The process is definitely not transparent. Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD) 130. ....View Full Judgment

Article 27

In the background of the existing practice of absorbing the employees of the petitioners category on satisfactory completion of the initial period of employment under a contract it can be said that there was reasonable ground for the writ petitioners to expect for being absorbed permanently in the service of the Corporation. Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others 55 DLR (AD) 132. ....View Full Judgment

Article 27

Since some employees of the Corporation inter se standing in the similar situation have not been treated in the similar manner or, in other words, have been treated differently from the others the contention of the writ petitioners that they have been discriminated against has rightly been found genuine by the High Court Division. Bangladesh 'Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others 55 DLR (AD) 132 ....View Full Judgment

Articles 27 & 29

If the executive prepares a list of persons for appointment in the service of the Republic without the backing of any law behind it and actually appoints some persons from the list, the others left out can come to the High Court Division not for enforcement of any legal right but for enforcement of their fundamental right. Secretary, Ministry of Establishment Government of Bangladsh and others vs Md Jahangir Hossain and 65 others 51 DLR (AD) 148 ....View Full Judgment

Articles 27 & 29

The argument that the fundamental right of the petitioners as provided in Articles 27 and 29 of the Constitution have been violated cannot be accepted for the simple reason that the order of transfer from one place to another is really a matter connected with the terms and condition of the service of the petitioners. Jihad Ahmed and others vs Bangladesh Power Development Board and others 52 DLR (AD) 75 ....View Full Judgment

Article 28

The matter of fixing the age of retirement of the Stewards and Stewardesses being gender–based the same has rightly been held by the High Court Division discriminatory and the discrimination so made being violative of Article 28 of the Constitution is not legal. Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene 55 DLR (AD) 132 ....View Full Judgment

Article 28( 4)

Indirect election for reserved seats whether destroyed the principle of democracy–A system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Clause 4 in Article 28 provides that nothing in that Article shall prevent the State, which expression includes Parliament, from making special provision in favour of women as done by Act No. 38 of 1990. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. ....View Full Judgment

Article 29

read with
Bangabondhu Sheikh Mujib Medical University Act [I of 1998]
Section 14 —Every appointment in any post under the Government or autonomous body can only be made after a proper advertisement inviting applications from eligible candidates and holding of selection following rules and by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter see merit of the candidates who have applied in response to the advertisement made.
The Appellate Division held that unless the appointment is made in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If the services of the appointees who had put in few years of service are to be terminated, the authority shall follow the principles: (a) satisfaction in regard to the sufficiency of the materials collected so as to enable the University authority to arrive at its satisfaction that the selection process was tainted; (b) determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process; (c) whether the sufficient materials present enable the authority to arrive at satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt. Satisfaction as to the sufficiency of materials are required to be gathered by reasons of a tho-rough investigation in a fair and transparent manner.
Dr. Khairun Nahar and others -Vs- Professor Dr. Iqbal Arshalan & others: (Civil) 11 ALR (AD) 19-24 ....View Full Judgment

Article 29

Equal opportunity– Reduction of chance of promotion does not amount to deprivation of the right to equal opportunity for employment. No grievance could be made of new rules if they are made bonafide to meet exigencies of service. Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19. ....View Full Judgment

Article 31, 35(1), (3) and Article 47A (1), 47(3)

Nullum crimen lege– Among the law points Mr. Razzak invoked, the doctrine nullum crimen sine lege found an important place. According to him it is an universally recognized principle of law that an action if did not amount to a crime when committed, the actor cannot be subsequently punished for that action through subsequent legislation. He also engaged Article 35(1) of our constitution.
Again we find Mr. Razzak’s submission on this point totally incongruous and inconsistent with the legal position.
Our constitution is obviously the supreme law of the country and any law which is repugnant to any provision of the constitution is void. Article 47A (1) of the constitution stipulate, “The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution.”
According to Geoffry Robertson Q.C. author of Crimes against Humanity, International Criminal Law came into existence as recently as Nuremberg (Crime Against Humanity, New addition Page-101).
From that point of view when the Nuremberg trial commenced there was no such offence under the International Law as Crime Against Humanity. Although, Nuremberg trial is said to have its root in Kellog- Brian Pact of 1928, that pact was concerned with the rules of war not with International Criminal Law. The following passages from Nuremberg Judgment is pertinent. Although it relates to situation of war, the principle enunciated on nullum crimen sine lege is applicable to crime against humanity, barren of war, equally well;
“To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neihbouring states without warning is obviously untrue, for in such circumstances the attacker must know that what he is doing is wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished…[ The Nazi leaders ] must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression.”
Professor Willium Schabas of Middlesex University writes with reference to the above passage. “In other words the Tribunal admitted that there was a retroactive dimension to prosecution for crimes against peace, but leaving such wrong unpunished would be unjust. (Unimaginable Atrocities by Willium Schabas, Oxford Page-49.
On Nullum Crimen Sine Lege, the Dutch Judge, BVA Roling, of the International Military Tribunal for the Far East (Tokyo Tribunal) said, “This maxim is not a principle of Justice but a rule of policy, valid only if expressly adopted.” He went on to say,“..the accused knew or ought to have known that in matters of international concern he was guilty of participation in a nationally organised system of injustice and persecution shocking to the moral sense of mankind. That fundamental rights are breached where a state fails to investigate, prosecute and punish.”(page 183). (A.H.M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Article 31

As the letter impugned in the writ petition did not contain anything detrimental to the reputation and career of the respondent, there was no violation of the provision of Article 31 of the Constitution and, as such, the writ petition so filed was not maintainable. Secretary, Ministry of Law, Justice and Parliamentary Affairs & ors vs Md Borhan Uddin & ors 56 DLR (AD) 131 ....View Full Judgment

Articles 31 & 32

All persons within the jurisdiction of Bangladesh are within Bangladesh rule of law. The foreign investors in ETV are no exception to this principle. Ekushay Television Ltd and others vs Dr Chowdhury Mahammod Hasan and others 54 DLR (AD) 130. ....View Full Judgment

Articles 31 and 32

Right to life–
Right to life is not only limited to protection of life and limbs but also extends to the protection of health, enjoyment of pollution free water and air, bare necessaries of life, facilities for education, maternity benefit, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent to human dignity. .....Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125] ....View Full Judgment

Articles 32, 33 and 35(5)

It was argued on behalf of the respondent that this court has a duty to uphold the rule of law and the constitutional safeguards on arrest and prevention of torture and ill-treatment of the suspected offenders. In this connection our attention has been drawn to articles 32, 33 and 35(5) of the constitution. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment

Article 32

Article 32 is couched in the similar language of article 21 of the Indian Constitution. Article 22 of the Indian Constitution relates to protection of arrest and detention in certain cases. The Supreme Court of India dealing with a petition by a victim who has been detained in police custody and his whereabouts could not be located, subsequently it was detected that he was detained by the police without producing before the Magistrate. The Supreme Court relying upon some previous decisions on the subject and on construction of articles 21 and 22 of the constitution held in Jagindra Kumar v. State of U.P., (1994) 4 SCC 260 that the police officer must justify the arrest and detention in police lockup of a person and no arrest can be made in a routine manner on a mere allegation of commission of an offence. It would be prudent, it was observed, for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. Accordingly, for effective enforcement of fundamental rights it issued the following requirements to be complied with whenever accused is arrested:
“1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.” .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment

Article 32

"Save in accordance with law" as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43. ....View Full Judgment

Article 33

These provisions of the above two sections have been reproduced in article 33 of the constitution. The framers were conscious that despite such safeguards are ensured, this provision should be retained as integral part of fundamental rights. So the police officers must not deprive of the fundamental rights recognised to a citizen. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment

Article 35 (2)

read with
Code of Criminal Procedure [V of 1898]
Section 403
Section 403 of the Cr P.C and Article 35(2) of the Constitution does not apply unless the accused has been tried and convicted or acquitted for the same offence, and two essential conditions there are namely (i) there must have been a trial of the accused of the offence by a competent court and (ii) there must have been a judgment of conviction or order of acquittal.
Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another 6 ALR (AD) 2015 (2)143 ....View Full Judgment

Article 35(5)

In case of malafide the matter of non disclosure will be justifiable one but for the clear constitutional sanction a non—disclosure of fact that was considered to the prejudice of the detenu ought to be regarded as a violation of basic principle of natural justice.
The detenu cannot also ask as a matter of right to the detaining authority the facts not disclosed on the plea of public interest. This is the privilege of the State and this privilege the Slate can always claim against the detenu, Further, when the liberty of a citizen is a1 snake and when constitutional protection is sought for, it is the Court alone which can very well look into all the materials including the materials to which privilege is claimed by the detaining authority. If, in fact, a privilege is claimed in respect of any material, it is the High Court Division alone that would finally decide as to whether the document is really a privileged one or not. Under proviso to Article 33 (5) of the Constitution, the authority has got a constitutional protection not to disclose anything in public interest and it is the constitutional court alone which can look into the materials pertaining to the detention of the detenu as contemplated in the Constitution for its satisfaction alone. The privilege is given to the State in the interest of the State. People or community cannot be asked for as a mailer of right. Habiba Mahmud Vs. Bangladesh 45 DLR (AD) 89. ....View Full Judgment

Article 35

Submission that the principle of 'double–jeopardy is applicable to punishment of government servant in a departmental proceeding is not acceptable. Protection in respect of trial and punishment as a bar to conviction and punishment more than once for the same offence as referred to in this article relates to criminal prosecution only. Md Serajul Islam vs The Director General of Food 42 DLR (AD) 199. ....View Full Judgment

Article 35( 4)

The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique and anr vs Ministry of Defence & ors 54 DLR (AD) 154. ....View Full Judgment

Article 35(5)

In case of malafide the matter of non–disclosure will be justiciable one. But for the clear constitutional sanction a non–disclosure of fact that was considered to the prejudice of the detenu ought to be regarded as a violation of basic principle of natural justice. Habiba, Mahmud vs Bangladesh 45 DLR (AD) 89. ....View Full Judgment

Articles 35(1) and 102

read with
Money Laundering Protirodh Ain (VIII of 2009)
Section 2(U)(Av) and (B) and section 4(2)
Money Laundering Protirodh Act (XIII of 2002)
Sections 2(V)(A)(AV),3(ka) and 13
General Clauses Act (Xof1897)
Section 6(b),(c)and (e)
In the impugned judgment it has been observed that nowhere the repealing Ordinance of 2008 on the subsequent Ain of 2009, one can find any indication stating the intention that repealing Act shows any different intention that such repeal has destroyed the liability or penalty incurred on investigation initiated under the repealed Ain of 2002. However, the repealing ordinance of 2008 or the Ain of 2009 has not destroyed the offence committed under the Ain of 2002. A prima facie case as has been disclosed under the Ain of 2002 is found to have been saved by the provisions of section 6(b),(c) and (e) of the General Clauses Act, 1897. A criminal offence never abates or destroyed even after the repeal of the law under which the offence is alleged to have been committed.
Tarique Rahman -Vs-Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others 1 ALR (AD)78 ....View Full Judgment

Article 36

The Fundamental Rights of freedom of movement attached to a citizen pervade and extend to every inch of the territory of Bangladesh stretching upto the continuental shelf: Per Mustafa Kamal J delivering the Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. ....View Full Judgment

Article 38

The initial burden of establishing a right claimed under Article 38 is on the applicant and then the burden moves on to the respondents if they take the plea of reasonable restriction. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. ....View Full Judgment

Article 38

Cannot be invoked for support, sustenance or fulfilment of every object of an association. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. ....View Full Judgment

Article 38

Freedom of association­Article 38 guaranteeing this freedom cannot be invoked for support, substance or fulfillment of every object of an association. Though the Red Crescent Society is an association of persons it is · an association sui geners. As the appellant's right does not flow from his right to form an association he cannot claim any right under Article 38. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. ....View Full Judgment

Article 38

The right to constitute a separate trade union for workers with international affiliations is not provided for either in the unamended Industrial Relations Ordinance, 1969 or in the Amendment Act, 1990. the amended legislation cannot be said to be violative of the fundamental right on the ground of loss of international affiliation. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. ....View Full Judgment

Article 38

The right to form an Association or union embraces the right to form a trade union and also the right to continue and· carry on the activities of the association. The right is subject only to reasonable restrictions in the interest of morality or public order. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. ....View Full Judgment

Articles 38 and 102

Appellant cannot claim protection under Article 38 of the Constitution as his right does not flow from his right to form an association. He can claim protection under Article 102 of the Constitution for enforcement of his statutory right but he cannot claim that his right under the statute cannot be modified, altered or affected by an amendment of the statute. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. ....View Full Judgment

Article 39

Freedom of thought and conscience and speech–
Article 39 of the Constitution has given freedom of thought and conscience to the citizens of the country but such freedom of thought and conscience is subject to reasonable restrictions imposed by law in the interest of the security of the State, decency or morality or in relation to contempt of Court. That is to say, any publication during the pendency of any matter in any Court of law, which tends to interfere with the course of justice in any substantial or real manner by prejudicing the mind of the public against persons concerned in the case before the cause is finally heard, is also contempt. In determining this effect, the intention of the printer or author in the publication is not of any consequence. What we are concerned with is that we should not permit any one to poison the fountain of justice. This would be a grave interference with the administration of justice. (Para-4); .....The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)– [2 LM (AD) 576] ....View Full Judgment

Article 39

Contempt— Limits of the press — Freedom of the press is recognized in our constitution—a court is to suffer criticism made against it only in the exceptional cases of bad faith or ill motive it will resort to law of contempt. Saleem Ullah Vs State 44 DLR (AD) 309. ....View Full Judgment

Articles 39 & 102

"Person aggrieved" – Its meaning and dimension–In our Constitution the petitioner seeking enforcement of a fundamental right must be a person aggrieved. Our Constitution is not at pari materia with the Indian Constitution on this point. The decisions of the Indian jurisdiction on public interest litigation are hardly apt in our situation. The petitioner is not acting pro bona publico but in the interest of its members. The real question in this case is whether the petitioner has the right to move the writ petition in a representative capacity. The High Court Division has rightly relied upon the case of 29 DLR 188 where the question has been answered in the negative. The petitioner may represent the employers in the Wage Board but its locus standi to act on behalf of the Constitution is just not there. Bangladesh Sangbadpatra Parishad (BSP) vs Bangladesh 43 DLR (AD) 126. ....View Full Judgment

Article 39(2)

Fundamental right can never be invoked for violating any provision of law or other man's right under the law. Bangladesh National Curriculum and Text– Book Board vs AM Shamsuddin & others 48 DLR (AD) 184. ....View Full Judgment

Article 39(2)

The right to freedom of speech and expression as claimed by the writ petitioners does not extend to the right of printing and publishing of 'note–books' or 'text–books' prepared and published by the Text Book Board under statutory authority. The Court was not justified in declaring the impugned Act to be ultra vires of Article 39(2) of the Constitution. Bangladesh National Curriculum and Text–Book Board vs AM Shamsuddin & others 48 DLR (AD) 184. ....View Full Judgment

Article 40

Right to livelihood–
Admittedly the writ petitioner-respondent after getting the work order started his work as per schedule and continued the same till he was suddenly directed to stop all works without assigning any reason as it appears from the impugned suspension orders as well as from the subsequent show cause notice. It is also admitted that his entire bill has not been paid even on repeated demands instead he was debarred from participating in any of the REB's bids without assigning any reason. Such action of the present appellant appears to be arbitrary, malafide and beyond the principle of natural justice. .....Chief Engineer, REB =VS= Biswajit Ganguly, (Civil), 2017 (2)– [3 LM (AD) 192] ....View Full Judgment

Article 41

“We recommend that a Unified Marriage and Divorce Act for all the citizens should be enacted by the Parliament keeping in pace with the modern time" -that the Said recommendation has violated fundamental right of the community as contended by the leave petitioner.
Held: In the background of the provision of Article 41 of the Constitution we are of the view that the said recommendation of the High Court Division taking exception to and against which the leave petition has been filed need be expunged and that can be very well done without affecting the decree as passed in Divorce Suit No. 1 of 1998. Accordingly the controversial part of the judgment of the High Court Division which runs as, “we recommend that a Unified Marriage and Divorce Act for all the citizens should be enacted by the Parliament keeping in pace with the modern time” is hereby expunged. Legal Aid Bangladesh. Vs. Eva Chowdhury & Ors 11BLT(AD)-180 ....View Full Judgment

Article 41

It is in no way desirable for the higher court, whose decision has binding effect on the courts subordinate to it, to embark on a matter which is totally unconnected with the subject matter before it. Islamic Law Research Centre and Legal Aid Bangladesh vs Eva Sunanda Chowdhury and others 54 DLR (AD) 168. ....View Full Judgment

Article 42

Requisition/acquisition of the suit plot compensation–
Article 42 of the Constitution provides 'every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property and no property of a citizen shall be compulsorily acquired, nationalised or requisitioned save by the authority of law on payment of appropriate compensation'. Payment of adequate/ appropriate compensation in lieu of acquisition is a constitutional right of a citizen. Non payment of such compensation shall fully frustrate/ affect the constitutional right of the affected person. From the records it appears that the defendant-appellants failed to prove that against the requisition/acquisition of the suit plots any/adequate compensation has been paid to the affected person.
The appellants are directed to assess and pay adequate compensation, if not paid earlier, to the respondents, who are affected persons, in accordance with law. Accordingly, both the civil appeals are allowed with the above observations and direction. …Government of Bangladesh =VS= Md Alamgir Hossain, (Civil), 2019 (2) [7 LM (AD) 146] ....View Full Judgment

Articles 42 & 102

The writ petitioners can come directly to the High Court Division for protection of their fundamental right even though an alternative remedy is available. Government of Bangladesh, represented by Ministry of Works and another vs Syed Chand Sultana and others 51 DLR (AD) 24. ....View Full Judgment

Article 42

The Constitution of Bangladesh, 1972
Article 42 read with
The State Acquisition of Tenancy Act, 1950
Section 97 read with
The Chittgaong Hill Tracts Regulation, 1900
Rule 34 read with
The Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989
Section 64(a), (b), (c), (d), (e), (f) and (g)
The restrictions mentioned in Article 42 will be available in section 97 of the State Acquisition of Tenancy Act, 1950, Rule 34 of the Rules for the administration of the Chittgaong Hill Tracts and section 64 of the Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989. Section 97 of the Act of 1950 provides ‘Restriction of alienation of land by aboriginals’. Under this provision if an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift or will to any person who is not such as aboriginal, he may apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as he thinks fit. There are also restrictions for mortgage of land of aboriginals. Rule 34 of the Rules promulgated in exercise of powers under Chittgaong Hill Tracts Regulation, 1900 which restricts “Settlement and Government khas land, Transfer, Partition and Subletting”. It is provided that no ‘settlement of Government Khas Land shall be made in the district of Chittagong Hill Tracts except in the manner specified in clauses (a), (b), (c), (d), (e), (f) and (g). Section 64 of the Ains of 1989 prohibits sale, lease, settlement or otherwise transfer of lands of three hill districts without prior permission of the Hill District Parishads. .....Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478] ....View Full Judgment

Article 43(a)

The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh and others vs Hussain Mohammad Ershad 52 DLR (AD) 162. ....View Full Judgment

Article 43(a)–

Search conducted with a duly issued search warrant by a competent court under section 96 CrPC is a reasonable restriction on the rights enumerated in Article 43(a) of the Constitution. But without complying with the requirement of section 96 CrPC no such restriction on the right of a citizen can be imposed. 52 DLR (AD) 172. ....View Full Judgment

Articles 44 and 94

Doctrine of basic feature–In our context, it has indigenous and special difficulties for acceptance–'Basic features' in relation to which period–What were basic to our Constitution when it was promulgated on 16–12–1972–'Basic features' have been varied in such abandon and with such quick succession · that the credibility in the viability of the theory of fundamentally is bound to erode– The experience of abandoning this Supreme Court and establishing two altogether different Courts, the Supreme Court and the High Court, in a unitary state by Proclamation Order No. IV of 1976 and then again doing away with the same by restoring the integrated Supreme Court by Proclamation Order No. I of 1977 was cited as instances of the non–viability of the theory. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 44 and 94 to 116

The impugned amendment has violated Articles 44 and 102– It has disrupted the provisions relating to the judiciary embodied in Article 94 by adding alien concept by way of introducing 'Permanent Benches'–The amendment has also expressly contravened Article 101. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 44 and 114

Interpretation of constitutional amendment–Articles 44 and 114 to be read together to find out the mandate of the Constitution–The entire Constitution is to be looked into in interpreting the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) I 65. ....View Full Judgment

Articles 44(1)(2), 100(5), 102 and 114–

Two sests of Courts created by sub–article(5) of Article 100–Constitutionality of amendment–­The amendment is hit by Article 114–Setting up of subordinate Courts by law occurring in Article 114 must not be of co–ordinate jurisdiction or compete with Article 44(2) which speaks of "without prejudice to the power of HC Division under Article 102". Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 45

A member of the disciplined force can move the High Court Division for enforcement of fundamental rights subject to the provisions of Article 45. Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladesh and another 47DLR (AD) 1. ....View Full Judgment

Articles 45, 102 & 134

A member of any disciplined force will not be entitled to any remedy if he is aggrieved by any decision of a Court unless the decision is coram non Judice or malafide, or by any order affecting his service or by order of the President or by any violation of fundamental right resulting from application of a disciplinary law or the maintenance of discipline. Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangla­desh and another 47 DLR (AD) 1. ....View Full Judgment

Article 45

The fundamental rights available in Part III of the Constitution cannot be invoked by a member of a disciplined force if any law prescribed a provision limited for the purpose of ensuring the proper discharge of his duty or maintenance of that force. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment

Article 47A (2)

A review petition filed by those subject to regimentation clogged by Article 47A (2) of the Constitution, the Appellate Division is to ensure that in the pretext of review, re-hearing of the whole matter is not initiated. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment

Article 47(2)

Bangladesh Bank (Staff) Regulations–Bangladesh Bank Staff Regulations are protected legislation like its parent law, the Bangladesh Bank Order. The constitutionality of these Regulations stand beyond any question and cannot be declared void being inconsistent with the equality clause of the Constitution. Bangladesh Bank and others vs Mohammad Abdul Mannan 46 DLR (AD) 1. ....View Full Judgment

Article 47(3) and 102(3)

In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability. It is true that the High Court Division has not said anything as to the vires of the sections of the Act, 1973 challenged in the writ petition, but it disposed of the same in the manner as quoted hereinbefore after making some observations as stated earlier; there may be a misgiving in the mind of litigant people that a writ petition challenging a provision of the Act, 1973 or any action of the International Crimes Tribunal, is amendable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. Moreso, the learned Judges cannot arrogate to themselves as advisors and it was not an act of discreet on their part to advise the writ-petitioners to redress their grievance by invoking article 104 of the Constitution. .....Bangladesh =VS= Shireen Pervin Huq & others, (Civil), 2016-[1 LM (AD) 195] ....View Full Judgment

Articles 48, 65(1), 94 and 142

Interpreta­tion of statute–Amicus curiae's inerpretation of the use of prepositions "of' and "for" in case of President, Parliament and Supreme Court­Significance of the use of prepositions "of' and "for" relating to the Executive, Legislature and Judiciary–Whether Parliament has no power to amend Article 94 of the Constitution as contended by amicus curiae. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 49

The Constitution of Bangladesh, 1972
Article 49 read with
The Code of Criminal Procedure, 1898
Sections 35A & 401 read with
The Penal Code, 1860
Sections 45 ,53 , 57 & 302 read with
The Bengal Jail Code, volume 1(Part I)
Chapter XXI Rule 751 (f)
End of convicts life as the alternative to death sentence can only be exercised by the High Court Division and this court and not by any other inferior tribunal or the executive. Accordingly, we conclude our opinion as under:-
(1) A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefor.
(2) Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.
(3) If the High Court Division or this court commutes a sentence of death to imprisonment for life and direct that the prisoner shall have to suffer rest of his natural life, such type of cases would be beyond the application of remission.
(4) Section 57 of the Penal Code is only for the purpose of working out the fractions of the maximum sentence fixed for the principal offence, that is to say, if such provision is not made, it would have been impossible to work out the fractions of an indefinite term.
(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1 (Part I) are administrative instructions regarding various remissions.
(6) If an offender pleads guilty at the initial stage of the trial of the case in respect of an offence punishable with death or imprisonment for life, the court/tribunal shall take lenient view on the question of awarding sentence, but in such cases, the court shall ascertain as to whether the offender pleading guilty upon understanding the offence charged with against him before accepting such plea. Provided however that the court is not bound to accept all pleas of guilty and award the minimum sentence.
(7) In exercise of power under article 49 of the constitution the President has power to grant pardon, reprieves and respite and to remit, suspend or commute any sentence even after the commutation of sentence by this court or the High Court Division. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

Article 52(1)

President’s Immunity—President’s Immunity from Criminal Prosecution — The immunity is available to the President while he is in office. Hussain Mohammad Ershad Vs. The State, 1 BLD (AD) 55. ....View Full Judgment

Article 52(1)

Immunity of President from criminal prosecution while in office—
As provided in article 52(1) of the Constitution of the People's Republic of Bangladesh, immunity of the President from criminal prosecution is available only when he is in office and not thereafter. Hussain Mohammad Ershad Vs. The State. 11 BLD (AD) 55. ....View Full Judgment

Articles 55(2) and 102

When the detenu alleges that his detention was not ordered by the appropriate person, the Government is required to disclose necessary facts to satisfy the Court that the order was passed by the proper person in accordance with the Rules of Business. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. ....View Full Judgment

Articles 55(2)(4) & 133

In our country as well the void created by the absence of law and rules under Article 133 can be filled up by executive power under Article 55(2) expressed to be taken in the name of the President (Article 55(4). Such exercise of power is not unknown or without precedent in our jurisdictions. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. ....View Full Judgment

Article 55(4)

The Cabinet decision dated 3–11–91 without publication in the Official Gazette cannot be treated as a guideline and add thereto that it was not an executive action in terms of Article 55(4) of the Constitution. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. ....View Full Judgment

Articles 56(6) & 133

The constitutional provisions in Article 133 will govern the terms and conditions of service of superior posts. Rules of Business will only be supplemental thereto. No Committees could be constituted in exercise of any "exceptional powers" or "inherent power" or "sovereign executive power" of the Government. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. ....View Full Judgment

Article 58(2) (now repealed)

The nature of the document of which the petitioner pleads protection and the related matters being in the facts of the case a mixed question of fact and Law, it is not yet time to consider this constitutional question while the document is still not ready for observation with all its factual clothings. Moudud Ahmed vs State 48 DLR (AD) 42. ....View Full Judgment

Articles 59 & 60

Local Government– It is meant for management of local affairs by locally elected persons. If government officers or their henchmen are brought to run the local bodies, there is no sense in retaining them as Local Government bodies. Considering the origin, growth and development of local government institutions at different levels of the administra­tion over one and a half centuries, it is found that Local Government is an integral part of the democratic polity of the country. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Articles 59, 60, 102 & 152(1)

Local bodies– Their composition–During the long gap of time local government in various forms and names were constituted by the authority of Martial Laws. Now that the provisions of the Constitution are back all local bodies shallhave to fulfil the constitutional requirements. Upazila being not an administrative unit an essential constitutional requirement for the Upazila Parisahd to be a local government is not fulfilled. It is not also wholly an elected body. This Parishad not being a local body under the Constitution its abolition violates no provision of the· Constitution so as to attract the relief under Article 102 of the Constitution. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Articles 59 & 152(1)

"Administrative unit" Article 152(1) has given a particular meaning of "Administrative unit". In this Article the words "district or any other area" are to be read conjunctively, and if it is done, a district is found to be an administrative unit, and for the purpose of Article 59, that is to say, for establishing a Local Government there, no designation by law is necessary. But as regards "any other area" it will be an "administrative unit" only ifit is specifically designated as such by law. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Article 61(1)(b)

To uphold the contention of Asrarul Hossain that even if a member remained absent without leave of the House for ninety consecutive sitting days he may not vacate his seat because the sitting days are · never consecutive in the sense of being continuous would be to render this article a dead letter which as a rule the court will never accept. Special Reference No.I of 1995. 47 DLR (AD) 111. ....View Full Judgment

Article 65(1)

The High Court Division wrongly held that section IOA of the Act provides arbitrary power without a provision for hearing. It is the policy of the legislature to make an enactment to that effect. It cannot be said that the law is bad because it is not in consonance with the principle of natural justice and it is harsh and arbitrary. Bangladesh Krishi Bank vs Meghna Enterprises and another 50 DLR (AD) 194. ....View Full Judgment

Articles 65(1) & 83

Under our Consti­tution there is considerable intermingling of the governmental functions, or large part of the legislative function is carried by Ordinances promulgated by the Head of the State and in considering the validity of the impugned amendments and the notifications issued by the National Board of Revenue under the provisions of section 3(4) of the Excise and Salt Act, 1944 they had the sanction oflaw and, as such, taxation power was also expressly saved by Article 83 of the Constitution. Bangladesh and ors vs Eastern Beverage Industries Ltd and another 56 DLR (AD) 153. ....View Full Judgment

Article 65(3)–

Reservation of seats for women in the Parliament–There is no substance in the contention that after the period for reservation of thirty seats expired, no extension as made by the Constitution (Tenth Amendment) Act, 1990 could be done. Clause 3 of Article 65 was never deleted. It remained in the Constitution. The substitution of clause 3 by the new one cannot be challenged as ultra vires. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. ....View Full Judgment

Article 65

It is the Supreme Court alone which is empowered to examine whether or not any law is inconsistent with the constitution. The Parliament has given the legislative power under article 65 to promulgate law but this power is circumscribed by limitations and if it exercises any power which is inconsistent with the constitution, it is the Supreme Court which being the custodian of the constitution and is manned by the Judges who are oath bound to protect the law to examine in this regards. The Supreme Court is the only organ of the State to see that any law is in consonance with the constitution. So, where the constitution confers the power upon the Supreme Court to strike down laws, if found inconsistent, such power cannot be delegated to a Tribunal created under subordinate legislation. In the alternative, the Supreme Court cannot delegate its power of judicial review of legislative action to a Tribunal. It is only on the principle that the donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one or in the alternative a delegatee cannot exercise same or more power than the delegator. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 66

Embezzlement of State money by a person who was the President of the country and using the same for his personal benefit or living or having properties disproportionate to his known source of income will definitely come within the ambit of moral turpitude. Hussain Mohammad Ershad vs Zahedul ls/am Khan and others 54 DLR (AD) 1. ....View Full Judgment

Article 66(2)( d)

The Returning Officer, having taken the view that because of the pendency of appeals respondent No 3 will not be disqualified from contesting the ensuing election, it cannot be said that he had no authority to so decide and that his decision suffers from malice in law. If an alternative interpretation is possible with regard to the issue in question, namely, the effect ofpendency of appeals against the orders of conviction and sentence, that will be an election dispute for the Election Tribunal to decide after the election if the petitioner or any affected candidate elects to prefer an election petition to the Tribunal. AKM Mayeedul Islam vs Bangladesh Election Commission and others 48 DLR (AD) 208. ....View Full Judgment

Article 66(2)(dd)

There is much force in the submission that by seeking election to the Parliament the respendent has accepted the order of his dismissal which terminates his relationship with the office of profit in the service of the Republic. Bangladesh, represented by Secretary, Establishment Division & ors vs Mahbubuddin Ahmed 50 DLR (AD) 154. ....View Full Judgment

Article 67

When a person is convicted of and sentenced to suffer imprisonment for a minimum period of two years he cannot be elected a Member of the Parliament and cannot retain his position as such Member. Hussain Mohammad Ershad vs Zahedul Islam Khan and others 54 DLR (AD) I. ....View Full Judgment

Article 67(1)(b)

'Absent', meaning and consequence of–If a member or members of Parliament remain absent without the leave of the Parliament for ninety consecutive sitting days he or they do it on pain of vacating his or their seats. The philosophy behind this is that his or their constituencies cannot be left unrepresented in the Parliament for an indefinite period. There must be by–election in those seats for electing new members in their places to represent the people. This is the democratic and constitutional process. Special Reference No.I of 1995. 47 DLR (AD) 111. ....View Full Judgment

Article 67(1)(b)

Walkout, boycott– They mean the same thing i.e .. absent and result in vacation of seat– Walkout, consequent period of non–return and boycott, call it by whatever epithet, mean the same thing, i.e. absent as provided in Article 67(1)(b) and would result in vacation of seat in the parliament if the other conditions are present, namely, being absent without the leave of parliament, for ninety consecutive sitting days. Special Reference No. I of 1995. 47 DLR (AD) 111. ....View Full Judgment

Article 67(1)(b)

In computing the period of ninety consecutive sitting days the period between two sessions and even adjournments in a particular session between sitting days should be excluded. Special Reference No I of 1995. 47 DLR (AD) 111. ....View Full Judgment

Article 68

When the power is there in the Constitution, non–invocation of the specific power in the concerned legislation will not make the privilege granted outside of the scope of the concerned President's Order. Dr Ahmed Husain vs Bangladesh, represented by Secretary, Minsitry of Law and Justice 51 DLR (AD) 75. ....View Full Judgment

Article 70

Whether the Sixteenth Amendment, the Supreme Court undermined the authority of the Parliament by keeping the Supreme Judicial Council in the constitution in its judgment and hence, it has thereby destroyed the basic structure of the Constitution.
The Appellate Division is of the view that in presence of article 70, it is difficult for a member of Parliament to form an opinion independently ignoring the directions given by the party high command of the political party in power. That being the position, it cannot be said to be exaggerated that the members of the political party which gains majority in the Parliament cannot remain independent when the question of removal of a Judge would arise because the removal proceeding will be taken in the Parliament by the political party in power and under such scenario, it will be questionable as to what extent the members of Parliament would act impartially free from partisan political pressure at the time of exercising the power of removal.
Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others (Civil) 10 ALR (AD) 1-220 ....View Full Judgment

Article 80

Power of the legislature to make law and validate invalid law— No doubt Parliament has the absolute power to make law in consonance with the constitution. But Parliament can not validate any law which it cannot make, ibid 15 MLR (2010) (AD) Page 299,349. ....View Full Judgment

Article 83 & 152(1)

The meaning of the word ‘tax’ has been used in a comprehensive sense to mean and include all money raised by taxation and includes those known as ‘rates’ or other charges levied by local authorities under statutory powers. (Gouse v. Kerala, AIR 1980 SC 271). A tax cannot be levied or collected merely by an executive fiat or action without there being a law to support the same. (Kerala v. Joseph, AIR 1958 SC 296). Article 83 contains in clear terms that “by or under the authority of an Act of Parliament”. Therefore, no tax can be levied without any sanction of law. Under this article not only levy but also collection of tax must be sanctioned by or under the authority of an Act of Parliament. The expression ‘levy’ includes creation of liability or fixation of its quantum and the expression ‘collect’ refers to physical realization of tax. (Somaiya Organics v. UP, AIR 2001 SC 1723). ‘It is the States which were protected as a result of the declaration for otherwise on the conclusion that the impugned Acts lacked legislative competence the result would have been that any tax collected would have become refundable as no state could retain the same because levy would be without the authority of law and contrary to Article 265 of the Constitution’, the court observed. Article 265 is couched in similar language of article 83 of our Constitution. Moreover, under the revenue laws, there are provisions for collecting revenue at a given rate fixed by Finance Act and also for collecting fine for non-payment of revenue. But there is no scope for collecting any lump sum amount. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment

Article 83

Not only tax must be levied validly, its collection must also be made in accordance with an Act of Parliament. When an Act of Parliament provides that a tax shall be collected in such manner as may be prescribed by rule, no tax can be collected until rules are made. (Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321). Article 83 gives protection against arbitrary collection of tax. When an assessment is made in an arbitrary manner there is no collection of tax in accordance with law. The language of article 83 clearly implies that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not complied with the liability to pay the tax cannot be said to be according to law. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment

Article 83

As per constitution or law, no officer of DGFI or any officer of intelligence forces has/had any right or authority to recover such money as tax or VAT. Article 83 totally prohibits in such process of realising any money otherwise than Act of Parliament. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment

Article 84, 85, 87 & 90

Article 88 has no manner of application, inasmuch as, article 88 speaks about expenditure to be charged upon Consolidated Fund. The expression expenditure has been used in article 87. It says that in every financial year there shall be laid, a statement of the estimated receipts and expenditure of the government for that year before the Parliament. The amount received by the government must be against revenues, loan etc. and not otherwise. As observed above, public expenditures are classified in two categories, expenditure charged on Consolidated Fund and the charges granted by Parliament on an annual basis. The expenditure mentioned in article 88 should be read with article 87. This expenditure is public expenditure. If the money recovered and deposited with the Bangladesh Bank are not part of Consolidated Fund, no Act of Parliament is necessary for returning the said money under articles 85 or 90 of the Constitution, inasmuch as, the same were illegally extorted from the writ petitioners without any sanction of law. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment

Article 84(1) & 144

Sometimes it happens that all the money required for the public expenditures cannot be raised by taxation and the government has to resort to borrowing. Article 144 gives authority to the executive to enter into contract and the government can borrow money for which sanction of Parliament is not necessary. All borrowings in a financial year are shown in the budget and in approving the budget the Parliament approves the borrowings. All borrowings do form part of the Consolidated Fund (article 84(1)) and Parliament’s authorization is necessary for expenditure from the Consolidated Fund. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment

Article 88 (e)

Decretal amount shall be paid from the consolidated fund but only after it is included in the annual financial statement of the appropriation bill—
Decretal dues is a charge against the consolidated fund. The decretal amount shall be paid from the consolidated fund only when the same is included in the annual financial statement of the appropriation bill placed in the Parliament. Bangladesh Bank represented by the Governor Vs. Mrs. Rana Awan and others 11 MLR (2006) (AD) 302. ....View Full Judgment

Article 90(1)

Article- 90(1) read with Code of Civil Procedure, 1908 order-21 Rules 52 and 56 read with
Bangladesh Bank Order, 1972 Article-71
Whether the Bangladesh Bank is bound to pay the decreetal amount to the respondent No.1 out of the Consolidated Fund without a separate instrument authorizing such payment?
In the instant case, the appellant, who is the custodian of the Consolidated Fund, not being made a party in the suit out of which the execution case arose, is also not a judgment debtor and in view of Clause (b) of Article 90 (1) he cannot pay the decreetal dues from Consolidate Fund unless Act of Parliament i.e. an Appropriation Act is passed in that behalf. Further there is also no autherisation from the respondent Nos. 2 and 3, the judgment debtors for release of the fund though the appellant tried to obtain such authorization from the respondent Nos. 2 and 3 but failed. Bangladesh Bank Vs. Mrs. Rana Awan & Ors 15 BLT (AD) 260 ....View Full Judgment

Article 93

Making an Ordinance– Plea of malafide–intention of the law making authority, whether the President in the case of an Ordinance, or the Parliament in the case of enacting a legislation, is irrelevant if they got power to make Ordinance or act on a given subject. When an Ordinance was made an Act of the Parliament within the prescribed time, the ground for assailing the Ordinance is no longer available. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. ....View Full Judgment

Article 94

High Court Division Judge­Function of–decisions of High Court Division Judges become "law" of the land binding upon all whether they are parties to the decision or not­Difficulty to constitute specialised Benches is one of the reasons for fall of disposal figures–Further increase in the number of judges will hardly make any difference. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 94

High Court Division is one of the Divisions of the Supreme Court ofBangladesh under Article 94. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 94

Independence of judiciary vital for democracy, maintenance of rule of law and social justice. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 94, 98, 106, 109, 111 and 112

In the Constitution the High Court Division is vested with plenary power without injection of any territorial conception–High Court Division is an integral part of the Supreme Court of Bangladesh. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 94, 100-107(3), 108, 109 and 110

Articles 94, 100, 101. 102, 103, 104, 105, 106, 107(3), 108, 109 and 110–
Constitutional developments of the High Court Division after the promulgation of the Constitution on 16–12–1972 traced and discussed–The provisions of the Constitution under Part VI in relation to the amended Articles as to whether the integrity of the Supreme Court was destroyed, were discussed and held that no other Article of Chapter 1 of Part VI having been amended (except 107(3) which was consequential it must be presumed that the integrity of the Supreme Court, High Court, Division, with its unlimited territorial jurisdiction was not impaired and the High Court Division remained one as before–The impugned amendment to be construed in harmony with all other provisions of Chapter I. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 94, 101, 102 and 111

High Court Division as an integral part of Supreme Court has lost its original character as well .as most of its territorial jurisdiction by the impugned amendment. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 94 and 152

High Court Division and High Court–Popular notion–Distinction between–Expression "Division"–Legal significance of–Two Divisions of the Supreme Court–Word "comprising" occurring in Article
94– Dictionary meaning of the word­ Interpretation of the High Court Division occurring in Article 152– Meaning of the word "judge"–Oneness of the Court settled by constitutional provision. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 94(4) & 116A

The independence of the judiciary, as affirmed and declared by Articles 94(4) and l16A, is one of the basic pillars of the Constitution and cannot be demolished, whittled down, curtailed or diminished in any manner whatsoever, except under the existing provisions of the Constitution. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Articles 94(4) and 116A

The District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration.
The Appellate Division helds that the Ministry of Public Administration’s circulars under memo dated 15th March, 1992, 11th May, 1991 and 17th January, 2000 are not applicable to the District Courts. Henceforth, the District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration. The said circulars are not applicable to the lower judiciary. .....Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others, (Civil), 2016-[1 LM (AD) 267] ....View Full Judgment

Articles 96 & 99

Article 99 though provided for appointment of a retired judge in any "judicial or quasi–judicial office" has not provided for any procedure for such appointment. The concept of judicial independence suggests that his appointment along with terms and conditions of service be governed under Article 96 as in the case of a sitting judge.
But in the absence of any specific provision to this effect we find it difficult to hold that the petitioner's service as Chairman of the Court of Settlement is governed by Article 96. But when Article 99 has provided for appointment of a retired Judge in a judicial or quasi–judicial office, some statutory provision should also be made for giving him minimum security of his service, whatever its period may be. The Public Servants Retirement Act under which the petitioner's contract was made does not apply to a retired Judge of the Supreme Court. The appointment, removal and other terms and conditions of service of a retired Judge in a public office should not be governed either by "master–and–servant law" or by any unequal contract. Abdul Bari Sarkar vs Bangladesh 46 DLR (AD) 37. ....View Full Judgment

Article 96(4)

Code of Conduct of the Judges– The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the ‘Code of Conduct’ of the Judges–
There is no Rules providing the procedure to be followed for removal of a Judge of the highest Court. The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the ‘Code of Conduct’ of the Judges. Similarly for the purpose of inquiry also, there is no Rules or Regulations framed by the government. It is left with the discretion of the Council to follow the procedure. The Council on following conduct rules and after affording Mr. Syed Shahidur Rahman sufficient opportunity to explain his conduct and upon hearing the parties held that Mr. Syed Shahidur Rahman should not remain in the judiciary because of his conduct. This opinion having been made by the highest body authorized by the constitution and the President having taken the decision relying upon the recommendation of the Council, the judicial review is not permissible against such decision. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231] ....View Full Judgment

Article 96(5)

The High Court Division cannot sit over the judgment of the Council. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council’s opinion is expressly beyond the scope of article 96(5) of the constitution–
The High Court Division cannot sit over the judgment of the Council. It has totally ignored that aspect of the matter and opined that the President did not apply his judicial mind in passing the order of removal of Mr. Syed Shahidur Rahman. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council’s opinion is expressly beyond the scope of article 96(5) of the constitution, and that such portion of the opinion contained in the report is without jurisdiction, inasmuch as, in the absence of proof of alleged payment of money to the writ petitioner by Ms. Kona the allegations against the writ petitioner is baseless. This view of the High Court Division is totally misconceived one. The High Court Division has exceeded its jurisdiction in making such observation. As observed above, even if the payment of Tk.50,000/- has not been proved, that does not disprove the allegations made by Ms. Kona. Mr. Syed Shahidur Rahman being a sitting Judge could not entertain Ms. Kona with two of her relations at his residence for fixation of a bail matter and also he could not maintain liasion with his previous junior Ms. Jesmin Akther Keya relating to conducting cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231] ....View Full Judgment

Article 96

Code of Conduct– We reformulate the Code of Conduct in exercise of powers under article 96 as under:
Code of Conduct
(1) A Judge should participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.
(2) A Judge should respect and comply with the constitution and law, and should act at all times in a manner that promotes public confidence in the judiciary.
(3) A Judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A Judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the Judge.
(4) A Judge should be faithful to and maintain professional competence in the law, and should not be swayed by partisan interests, public clamor, or fear of criticism.
(5) A Judge should be patient, dignified, respectful, and courteous to litigants, lawyers, and others with whom the Judge deals in an official capacity, and should require similar conduct of those officers to the Judge’s control, including lawyers to the extent consistent with their role in adversarial system.
(6) A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed later than six months of the date of delivery of judgment.
(7) A Judge should avoid public comment on the merit of a pending or impending Court case.
(8) A Judge shall disqualify himself/herself in a proceeding in which the Judge’s impartiality might reasonably be questioned.
(9) A Judge shall disqualify himself/herself to hear a matter/cause where he served as lawyer in the matter in controversy, or with whom the Judge previously practiced during such association as a lawyer concerning the matter, or the Judge or such lawyer has been a material witness.
(10) A Judge shall not hear any matter if he/her knows or if he/she is aware or if it is brought into his/her notice that, individually or as a fiduciary, the Judge or the Judge’s spouse or children have a financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be affected substantially.
(11) A Judge requires a degree of detachment and objectivity in judicial dispensation and he is duty bound by the oath of office.
(12) A Judge should practise a degree of aloofness consistent with the dignity of his office.
(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person.
(14) A Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of his office and the public esteem in which that office is held.
(15) A Judge should not engage in any political activities, whatsoever in the country and abroad.
(16) A Judge shall disclose his assets and liabilities, if asked for, by the Chief Justice.
(17) Justice must not only be done but it must also be seen to be done. The behaviour and conduct of a member of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
(18) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
(19) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
(20) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.
(21) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
(22) A Judge is expected to let his judgments speak for themselves. He shall not give interview to the media.
(23) A Judge shall disqualify himself or herself from participating in any proceedings in which the Judge is unable to decide the matter impartially or in which it may appear to a prudent man that the Judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where the Judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings.
(24) A Judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.
(25) The behavior and conduct of a Judge must reaffirm the people’s faith in the integrity of the judiciary.
(26) A Judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities.
(27) As a subject of constant public scrutiny, a Judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizens and should do so freely and willingly.
(28) A Judge shall, in his/her personal relationship with individual members of the legal profession who practice regularly in the Judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality.
(29) A Judge shall not participate in the determination of a case in which any member of the Judge’s family represents a litigant or is associated in any manner with the case.
(30) A Judge shall not allow the use of the Judge’s residence by a member of the legal profession to receive clients or other members of the legal profession.
(31) A Judge shall not allow his/her family to maintain social or other relationship improperly to influence any judicial matter pending in his/her court.
(32) A Judge shall not use or lend the prestige of the judicial office to advance the private interests of the Judge, a member of the Judge’s family or of anyone else, nor shall a Judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the Judge in the performance of judicial duties.
(33) A Judge shall not practice law or maintain law chamber while he is holding judicial office.
(34) A Judge and members of the Judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by the Judge in connection with the performance of judicial duties.
(35) A Judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, witnesses, lawyers and others with whom the Judge deals in an official capacity. The Judge shall require similar conduct from legal representatives, court staff and others subject to the Judge’s influence, direction or control.
(36) A Judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.
(37) A Judge shall sit in and rise from the court in time without fail and in case the Chief Justice notices that a Judge does not utilize the time allocated for judicial works, the Chief Justice shall intimate the Judge by writing to maintain the court’s time and despite such notice if the Judge does not rectify, such conduct be treated as misconduct and he/she will be dealt with in accordance with law.
(38) (a) If a complaint is received by the Chief Justice from anybody or any other sources that the conduct of a Judge is unbecoming of a Judge, that is to say, the Judge is unable to perform his/her judicial works due to incapacity or misbehaviour, the Chief Justice shall hold an inquiry into such activities with other next two senior most Judges of the Appellate Division and if the Chief Justice or any one of the other Judges declines to hold a preliminary inquiry or if the allegation is against any one of them, the Judge who is next in seniority to them shall act as such member and if upon such inquiry it found that there is prima-facie substance in the allegation the Chief Justice shall recommend to the president.
(b) A complaint against a Judge shall be processed expeditiously and fairly and the Judge shall have the opportunity to comment on the complaint by writing at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the Judge.
(c) All disciplinary action shall be based on established standards of judicial conduct.
(39) The above Code of Conduct and the ethical values to be followed by a Judge, failing which, it shall be considered as gross misconduct.
The decisions of the apex court of the country are final not because they are infallible, but because the decisions are infallible as they are constitutionally final. By the impugned amendment, the removal mechanism of the Judges of higher judiciary by the Supreme Judicial Council has been substituted by the Parliamentary removal mechanism. Since this amendment in ultra vires the constitution, the provision prevailing before substitution is restored. The appeal is accordingly dismissed. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 96

Supreme Judicial Council–
The Supreme Judicial Council now a part of our Constitution is the safety valve against the executive onslaughts and it shall save the Judges of the Supreme Court from the onslaughts of the executive and this safety valve cannot be allowed to be fused by any logic and under any circumstances, but that is what has actually been done by Sixteenth Amendment, so the High Court Division very rightly struck down the same. At the same time, I strongly feel that steps need be taken to make the Supreme Judicial Council more effective.
Before martial law dispensation, original article 96 was no more in the Constitution and, in fact, in Fifteenth Amendment, article 96 with the Supreme Judicial Council was retained and thus it became a part of the Constitution and thereby article 96 with the Supreme Judicial Council no more bore the stigma of the Martial Law Proclamation. In the written argument, the learned Attorney General took a plea that since by Fourth Amendment, presidential form of Government was introduced in place of parliamentary form of Government, so the power to impeach the Judges of the Supreme Court was taken away from Parliament and it was vested in the President. The argument of the learned Attorney General is absolutely based on total non-consideration of the provisions of the various articles of the Constitution in Chapter I, Part V of the Constitution which have been quoted hereinbefore. I have checked up the articles in that chapter of Part V. I found no change in the provisions as to the composition and power of Parliament. It remained the same when Fourth Amendment was passed and even today it is the same as it stood on 04.11.1972. The only change made from time to time was in sub-article (3) of article 65 as to the number of nominated women members. Parliament is Parliament and its members are elected representatives of the people whatever may be form of the Government, parliamentary or presidential. I failed to understand how the learned Attorney General could make the distinction between the members of Parliament under the presidential form of Government and members of Parliament under parliamentary form of Government. The only distinction between the two forms of Government is that in the presidential form of Government, the President is the chief executive and in the parliamentary form of Government, the Prime Minister is the chief executive. The powers and functions of Parliament under both the forms of Government are the same and similar. In the context, it is very very pertinent to state that though the provisions of the impeachment of a Judge of the Supreme Court by Parliament was in the Constitution from Fourth November, 1972 upto 25th January, 1975, i.e. upto Fourth Amendment, no law was enacted pursuant to sub-article (3) of original article 96 and therefore, article 96 as it stood then never became effective and it just remained in the Constitution. (Md. Abdul Wahhab Miah, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 96 and 142

It is interesting to note that article 96(1), which relates to the age of retirement of judges of the Supreme Court, was amended on 11.11.1986 (when the country was not under democratic government) changing the retiring age from 62 years under the 1972 Constitution to 65 years. On 17.05.2004, article 96(1) was again amended changing the age of retirement of Supreme Court Judges from 65 to 67 years, this time by a democratically elected government. The Fifteenth Amendment of 2011 gave a seal of approval to article 96(1) of the Constitution of 2004 as well as the Supreme Judicial Council. If we are to accept the argument of the learned Attorney General about return to the 1972 Constitution, then we have to question why article 96(1) should not also revert to the 1972 Constitution, and why he is not advocating for that also. (Muhammad Imman Ali, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 96

The Sixteenth Amendment impairs the independence of the judiciary by making the judiciary vulnerable to a process of impeachment by the legislature which would be influenced by political influence and pressure. (Syed Mahmud Hossain, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 99

Prohibition on holding office of profit in the service of the Republic by a Supreme Court Judge—
The purpose behind this prohibition was that the high position and dignity of a Judge of the Supreme Court should be preserved and respected even after his retirement and, further that if any provision was made for holding of office, after retirement, then a Judge, while in the service of the Supreme Court might be tempted to be influenced in his decisions in favour of the authorities keeping an eye upon a future appointment. Abdul Bari Sarker Vs. Bangladesh. 46 DLR (AD) 37, 38. ....View Full Judgment

Article 100 (old)

The impugned amendment will go off the Constitution and the old Article 100 will stand revived with its provision for holding of sessions–Sessions means holding of Court in full. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165.
Holding 'Sessions' occurring in Article 100 (old)––Without framing any rule by the Court these six places figured in the Chief Justice's proposal for holding 'Sessions'– Chief Justice's constitution of any Bench of Division vide Article 107(3) is subject to Rules to be framed under Article 107. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles l00 (old) and Article 107

Holding "Sessions" must be regulated by law–Article 100 does not mention "consultations"– How to hold "Sessions"– To hold sessions or not is the end result of judicial decision to be taken in the full Court. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

Amended Article 100– Nature of the Supreme Court– Contention arose because the impugned legislation has set up Permanent Benches. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

It is only in the matter of seeking approval that Chief Justice brings the matter to the notice of the President because logistics and administrative matters are involved. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

Concept of matters arising out of areas as mentioned in rules framed by the Chief Justice is akin to the concept of the cause of action in the Civil Procedure Code. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

Supreme Court's constitutional responsibility– Restoration of old Article 100 in its original position "along with the Sessions of the High Court Division" by striking down the amended Article 100– Indemnity of the judgments, orders, decrees passed under amended Article 100 as past and closed transactions made by express order of the Court. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

Territorial units may claim status of federating units––Court's apprehension about the perils of regionalism fraught with the possibility of dismantling the fabric of the Republic. The amendment purports to create territorial Units which eventually may claim the status of federating Units thereby destroying the very fabric of Unitary Republic. In other words, by sowing the seeds of regionalism the next step can be dismantling the fabric of the republic. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100

The decentralisation of the High Court Division which started under the Martial Law Regime has now been given constitutional recognition by the Eighth Amendment Act. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 100, 107, 108, 109, 110, 111

Territorial divisions for the jurisdiction of Benches and High Court Division at the permanent seat–No common authority over them –Writs issued by them will be limited in operation to their respective areas–Admiralty jurisdiction of the High Court Division cannot be assigned to any of the areas–Territorial waters belong to the Republic and not to any district­ High Court Division's power to transfer under Article 110 has been negative. Superintendence and control under Article 109 has also been affected– Binding effect of judgment under Article 111 has also been split up– Repugnancy thus resulted is irreconcilable.
By amending the Constitution the Republic can be replaced by Monarchy, Democracy by Oligarchy or the judiciary cannot be abolished, although there is no express bar to the amending power given in the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 100,107(1) and 107(3)

Rule ­making power of the Supreme Court–Holding of 'Sessions'– Chief Justice to take decision to hold Sessions in accordance with rules framed by the Court– The President as the highest executive can advise the Chief Justice as to the viability of die proposal. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 100 and 142(1A)

Absence of long title– Since the amended Article 100 has been found bad on merit for having created seven Courts of exclusive jurisdiction, the absence of long title justified the contention that it was deliberately done to confuse the members of Parliament as to what was being carried through. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(3)

By the Amendment Act original Article 100 had been displaced and a complete new dispensation created by creating Permanent Benches at six designated places (Article 100(3)) then comes sub–article (5). Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(5)

The pre–requisite in Article 100 (5) is consultation, the absence of such consultation is demonstrative of arbitrariness in setting up of Permanent Benches which is unconstitutional. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(5)

Interpretation of the Constitution– Settled principles to be kept in mind–Permanent Benches to which President assigned the areas with jurisdiction under Article 100(5)– Theory of separation of power and cherished canon of independence of judiciary militated against. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(5)

In Article 100(5) it has been done other way about, namely, the President is to assign area in consultation with Chief Justice. The learned Attorney–General has placed before us a copy of the minutes which shows that it was initiated by the Law Ministry for setting up Permanent Benches in those very six places which were selected earlier by the Martial Law period and the Chief Justice only gave consent by saying without taking the opinion of the High Court Division itself. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(6)

Rules framed by the Chief Justice thereunder– Rules framed by the Chief Justice show that the Permanent Benches are in fact new Courts therefore pending proceedings had to be transferred– The Rules are ultra vires on the very face of it. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(6)

The Rules have brought in focus the evils of impugned amendment. Anwar Hussain Chry vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 100(6)

A litigant has vested right to continue the proceedings in the pre–existing forum. To sum up:
(1) The amended Article 100 is ultra vires because it has destroyed the essential limb of the judiciary namely, of the Supreme Court of Bangladesh by setting up rival courts to the High Court Division in the name of Permanent Benches conferring full jurisdictions, powers and functions of the High Court Division;
(2) Amended Article 100 is ultra vires and invalid because it is inconsistent with Articles 44, 94, l 0 l and l 02 of the Constitution. The amendment has rendered Articles 108, 109, 110, 111 and 112 nugatory. It has directly violated Article 114.
(3) Amendment is illegal because there is no provision of transfer of cases from one Permanent Bench to another Bench which is an essential requisite for dispensation of justice (See AIR 1979 (SC) 478);
(4) The absence of such provision of transfer shows that territorial, exclusive courts, independent of each other, have been created dismantling the High Court Division which in the Constitution is contemplated as integral part of the Supreme Court;
(5) Transfer of judges by a deeming provision is violative of Article 147;
(6) It has not merely set up a permanent Bench as in Indian jurisdiction because the Indian High Courts have territorial jurisdiction and in setting up Benches for deciding cases in outlying area the legislative language is "to exercise the jurisdictions and powers for the time being vested in the High Court in respect of cases arising in districts".
That is the language of the Letters Patent as well. See Patna High Court Letters Patent Clause 35 while conferring jurisdiction for Orissa in order to exercise power in respect of cases arising in that Division.
(7) But in this amendment unfortunately the legislative will have been carefully drafted to camouflage the real purpose namely, of setting up of two rival classes of High Court Division in the name of permanent Bench and Bench in the residuary area while using the expression "jurisdiction", 'powers' and 'functions' separately in each group and the Article 101 stands alone with the language of law namely, the High Court Division shall exercise powers, functions and jurisdictions when that High Court Division itself ceases to exist in name;
(8) Sessions connotes temporariness. The Dictionary meaning: "a period of being assembled." In the Constitution Article 100 says as the Chief Justice may with the approval of the President, from time to time appoint. Any other devices contrary to the spirit of the Constitution will tantamount to fraud on the Constitution on the principle what cannot be done directly shall not be done indirectly.
(9) No argument was advanced directly though but attempt was made whether by running a blue pencil the court would sever the bad part from the good part of the enactment. The answer is in the negative; because what is the purpose of this amendment namely, to set up permanent Benches with full jurisdictions, powers and functions of the High Court Division. The other provisions in the amended Article are so interwoven with the scheme that they cannot be separated. Therefore, the full article is liable to be declared ultra vires.
Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 101, 103 and 105

High Court Division's jurisdictions, powers and functions, both original and appellate, occurring in Article 101– In Bangladesh the Supreme Court is constituted by the Constitution itself detailing the jurisdictions, powers and functions of each Division. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 101 and 102

read with
High Court Division Rules, 1973
Parts I and II
Reading together Articles 101 and 102 of the Constitution and the High Court Division Rules, 1973 as mentioned in serial (A) of Part I and Part II of appendix IV, I failed to understand, in the absence of an application duly supported by affidavit and being registered and numbered as a writ petition, how the High Court Division could assume jurisdiction under Article 102 and issue the suo motu Rule on a news item published in a daily vernacular and then dispose of the same beyond the Rule issuing order. In exercising jurisdiction, Judges must see first whether they have the jurisdiction to exercise the power. In the absence of conferment of power either by a provision of the Constitution or by any other law, if the Judges of the High Court Division assume any jurisdiction that will be nothing but usurpation of power and such usurpation will be without jurisdiction. Per Md. Abdul Wahhab Miah.J (dissenting)
Mohammad Tayeeb -Vs.- Government of Bangladesh 5 ALR (AD)2015(1) 156 ....View Full Judgment

Article 102

If any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division–
The writ-petitioners had no cause of action to invoke the writ jurisdiction of the High Court Division under article 102 of the Constitution. In the context, we state the law that though the provisions of Code of Civil Procedure are not as such applicable in the case of a writ petition, the principle of the provisions of the Code of Civil Procedure can be borrowed in deciding a writ petition like the provisions of Order VII, rule 11, clause (a) thereof. In the absence of the cause of action, the writ petition was not maintainable in law and therefore, the High Court Division did not commit any error of law in discharging the Rule Nisi on the view that the writ petition was not maintainable. In the context, the High Court Division rightly relied upon the case of Kamaluddin Md. and another-Vs-Bangladesh and others, 56 DLR (AD) 212. However, we are of the view that if any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division. …Rokeya Begum =VS= Bangladesh, (Civil), 2019 (2) [7 LM (AD) 88] ....View Full Judgment

Article 102

Limitation–
No period of limitation has been prascribed by law for seeking redress under article 102 of the Constitution. However, such relief must be sought as early as possible and must be shown due diligence. There is no special provision of privilege for the Government to explain the delay invoking constitutional jurisdiction. …Murtuza Shah(Md.) =VS= Ataharul Haque, (Civil), 2019 (2) [7 LM (AD) 158] ....View Full Judgment

Article 102

In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty–
The High Court Division in fact, passed the impugned order to compel the executive to pay government portion of salaries inasmuch as the government did decide as yet to pay salaries to them or even did not assure them that the government would pay the same. In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty. The mere fact that recognition and registration have been granted to an institutions or, for that matter, for conducting new course or subject would not give rise to a presumption of a financial sanction. A financial liability can not be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government. We are of the view that the High Court Division exceed its jurisdiction in passing the impugned command of compelling the executive for enlisting the names of the writ petitioners in the monthly payment order and to pay the arrear salaries and other benefits. The petition is disposed of. The judgment and order of the High Court Division is hereby set aside. …Government of Bangladesh =VS= K.M. Ekbal Hossen, (Civil), 2019 (2) [7 LM (AD) 180] ....View Full Judgment

Article 102

A litigant has no inherent right in procedural remedy. Since the Appellate Division of the Supreme Court has observed in 35 DLI? (AD) 127 that there is no scope for second revision the matter ends there. That does not mean that of necessity a writ jurisdiction may be invoked. Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196. ....View Full Judgment

Article 102

In certiorari the Court can declare that the conviction of the accused was recorded without lawful authority—if the accused’s trial is vitiated by irregularities in procedure causing him prejudice, the proceedings can be quashed. State Vs. Zahir and ors. 45 DLR (AD) 163. ....View Full Judgment

Article 102

A writ petition does not lie against the decision of the Sessions Judge under section 439A CrPC. A litigant has no inherent right in procedural remedy. Appeal or revision must be given expressly by law. A writ jurisdiction cannot of necessity be invoked. Haji Golam Hossain Vs. Abdur Rahinan Munshi 40 DLR (AD) 196. ....View Full Judgment

Article 102(2)(a)(i)

read with section 439A of the Code of Criminal Procedure (V of 1898)—The Sessions Judge having reversed the finding of possession made in favour of the appellant by the Magistrate, the appellant cannot file writ petition in the nature of mandamus under Article 102(a)(i) of the Constitution. Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196. ....View Full Judgment

Article 102(2)(b)(1)

High Court Division which took the view “This rule therefore has become infructuous after revocation of the impugned (original) order and the detenu is in detention not under the said order but under the subsequent order which is not the subject— matter of the present rule” missed the tenor of Article 102(2)(b)(l) which confers jurisdiction on it to “satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner” Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. ....View Full Judgment

Article 102(2)(b)(i)

Writ of Habeas Corpus—Nature of enquiry—HC Division’s view erroneous—Considering the nature of enquiry as it is, there is no hesitation in saying that the High Court Division has erroneously taken the view that the Rule (issued by it) has become infructuous as because fresh order had been passed which was not, speaking technically, a subject—matter of the Rule. To say the least, the view that was taken in the case of Abdul Latif Mirza 31 DLR (AD) 1 was overlooked. Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. ....View Full Judgment

Article 102(2)(b)(i)

In 31 DLR (AD) 1, it was held that the order of detention for its validity is to be tested on the basis whether the detaining authority had before it material which gave a rational probative value of the order and are not extraneous to the purpose of the Act and beyond which the order of detention is immune from challenge except on the ground of malafide. Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. ....View Full Judgment

Article 102

Doctrine of promissory estoppel the appellants would be estopped from denying the claims of the respondent nos.1 to 7 in regularizing their service in the newly created 24 posts by the appellant-Government with the purpose of regularizing the services of the respondents in their respective posts– Government transferred M.B.B.S. Doctors to the newly created posts of BHMS degree holders in the Homeopathic Degree College and Hospital, Mirpur and thereby locked the posts of the respondent nos.1 to 7 which were exclusively created for regularization of the services of the 8(eight) honorary teachers including the respondent Nos.1 to 7 who were appointed without pay and allowance. The learned Judges of the High Court Division could not find any explanation on behalf of the appellants as to why the recommendations regarding regularization of the service of the respondent nos.1 to 7 as Lecturers / Assistant Professors of the Government Homeopathic Degree College could not be implemented and the learned Judges of the High Court Division rightly found that the appellant-Government failed to show why the respondents M.B.B.S. degree holders should be transferred to the Homeopathic Degree College depriving the Homeopathic Degree holders who are entitled to be appointed on full-time basis in the newly created posts of Government Homeopathic Degree College, Mirpur.
We are also of the view that the doctrine of Promissory Estoppel is also applicable in the aid of the respondent Nos.1 to 7 who have been rendering their service with sincerity, honesty and diligence to the satisfaction of the students and the College Authority. By their conduct and activities the appellant-Government has induced or made a representation to the respondent-teachers to continue their service as honorary teachers of the Government Homeopathic Degree College without pay and allowances so that they may be regularized or appointed on full-time basis in the newly created posts under the revenue set-up.
The appeal is dismissed without any order as to cost. The impugned judgment and order dated 03.11.2008 passed by a Division Bench of the High Court Division in Writ Petition No.2919 of 2006 is hereby affirmed. …Government of Bangladesh =VS= Dr. Md. Nazrul Islam Bhuiyan, (Civil), 2020 (1) [8 LM (AD) 57] ....View Full Judgment

Article 102

read with
The Contract Act
Section 211, 221
Whatever commission or remuneration the agent was entitled to for the acts done on behalf of the principal, it must be paid by the principal and not by the third party. There was an agreement to pay commission to writ petitioner, such commission could be recovered by invoking writ jurisdiction. The answer to this point is in negative. The writ petitioner’s remedy lies in the civil court for recovery of the money as per terms of the agreement. …Government of Bangladesh =VS= M/s. Excellent Corporation, (Civil), 2020 (1) [8 LM (AD) 215] ....View Full Judgment

Article 102(2)

We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment. Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12-2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner. This Division also found that admittedly before such cancellation no notice was served to the respondent No.1. That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit. …AB Siddique(Engineer) =VS= Kazi Akramuddin Ahmed, (Civil), 2020 (1) [8 LM (AD) 350] ....View Full Judgment

Articles 102 and 44

The right of judicial review under article 102(1) is a guaranteed one which is embodied in the constitution itself, but if that right is not guaranteed, even if a citizen’s fundamental right is infringed, he will be left with no remedy at all. True, article 102(1) has not been retained in the fundamental rights chapter as has been kept in India but in view of article 44(1), it is akin to fundamental right. Similarly the observation that the enforcement of fundamental right is available only when ‘no other equally efficacious remedy is provided by law’ is also not a correct view, inasmuch as, whenever there is infringement of fundamental rights, any person can move the High Court Division for judicial review of the administrative action under Article 102(1). The question of equally efficacious remedy arises only when it will exercise power under article 102(2) i.e. writ of certiorari and other writs mentioned in sub-clauses (a) and (b) of clause (2). If there is an alternative remedy, the High Court Division’s power is debarred. It is only in exceptional cases, it can exercise this power. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 102(5)

The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. .....Pubali Bank Ltd =VS= Abdur Rashid Miah & others, (Civil), 2016-[1 LM (AD) 420] ....View Full Judgment

Article-102

Remission of Interest of the Sick Industry–
The condition precedent for availing the opportunity of Special Interest Remission was that from the date of recommendation of the Special Committee, the sick industry was required to make down payment of 5% out of the outstanding amount excluding the interest. Neither in annexure-A nor in annexure-B of the writ petition, there was any recital that the concerned Ministry or BSRS gave any assurance or any undertaking to the writ petitioner that the money paid by it prior to the decision of the Special Committee on Interest Remission would be adjusted against the total amount of remission of interest. To avail the opportunity one must make deposit of the required amount as a condition precedent within thirty days from the date of receipt of the notice. Since the writ petitioner did not avail of the opportunity, it does not acquire any right on the question of remission of interest.
The appeal is therefore, allowed without any order as to cost. The judgment of the High Court Division is set aside. .....Bangladesh Shilpa Rin Sangstha & another =VS= Rony Twines Ltd & others, (Civil), 2016-[1 LM (AD) 200] ....View Full Judgment

Articles 102 and 117(2)

Since the vires of any law was not challenged writ petition is not maintainable–
The Appellate Division observed that law is now settled that except on the limited scope a writ petition involving question of determination of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable by the High Court Division under Article 102 of the Constitution. The object of providing Article 117(2) in obviously to relieve the congestion in courts and provide for speedy disposal of service matters clogging the courts for year by establishing alternative forums with exclusive jurisdiction. Administrative Tribunal has the jurisdiction, power and authority to adjudicate upon the disputes relating to service matter including the power to deal with the questions involving fundamental rights. .....Ministry of Communication & others =VS= Md.Iqbal Hossain (Civil), 2016-[1 LM (AD) 347] ....View Full Judgment

Article-102, 29 & 133

Promotion–
Promotion is not a matter of right, it is to be earned by meritorious service which includes efficiency, good conduct, character and integrity, dynamic personality and, above all, sense of value and promotion. Seniority alone is not sufficient for promotion but it is certainly one of the primary requisites for promotion. Though by seniority alone a person cannot earn promotion, he, by virtue of seniority, has a right to be considered for promotion. .....Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, (Civil), 2016-[1 LM (AD) 56] ....View Full Judgment

Article 102 and 117

Clause (1) of Article 102 of the Constitution ordains that any person aggrieved may seek judicial review in the High Court Division for enforcement of fundamental rights conferred by Part III of the Constitution. Clause (5) of Article 102 puts an embargo to the seeking of such relief. It states that the person refers to in Article 102 includes a statutory public authority and any court or tribunal against whom such relief can be claimed, but it has excluded a court or tribunal established under a law relating to the defence services or a disciplined force or tribunal established in accordance with Article 117 of the Constitution. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment

Article 102(2)

Appellate Division held that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177] ....View Full Judgment

Article 102(2)

All writ petitioners had absconded before they moved the High Court Division. There is no positive statement as to whether they appeared before the Special Judge before moving the petitions. In presence of alternative remedy, a writ petition for quashing the proceeding is not maintainable. This court cannot take different view. The accused if feel aggrieved by the initiation of the proceedings, must surrender to the jurisdiction of the court before seeking any remedy. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment

Article 102(2)

This court has taken a consistent view that no writ petition is maintainable for quasninerit of a criminal preceding and secondly, a fugitive from justice cannot get any relief from court. The High Court Division has acted illegally in quashing the proceedings. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment

Article 102(2)

Judicial review is not available for quashing a criminal proceeding in presence of alternative remedy. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment

Article 102(2)

Arbitration clause being available in the agreement but invoking write jurisdiction under the circumstances environment may judicial review even there is an alternative remedy available–
The arbitration clause being available in the agreement, invoking writ jurisdiction by the respondent company under the present circumstances as stated above is not a bar as any action which is arbitrary, malafide and beyond the principle of natural justice can be the subject matter of the judicial review even there is an alternative remedy available as decided in a good number of cases by the Appellate Division. .....Chief Engineer, REB =VS= Biswajit Ganguly, (Civil), 2017 (2)– [3 LM (AD) 192] ....View Full Judgment

Article 102

This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. The judgment and order passed by the High Court Division is hereby set aside. .....Bangladesh Railway =VS= Most. Monowara Begum, (Civil), 2018 (2) [5 LM (AD) 13] ....View Full Judgment

Article 102(2)

Seniority–
The writ petitioners were appointed against temporary posts and the added respondents got their appointment against permanent posts. Seniority amongst officers appointed by the same process at different times, the date of entering service is, unless there is some rule relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise. Learned Attorney-General failed to show any such law which provides that the persons appointed against permanent posts. We do not find any wrong in the judgment and order of the High Court Division. .....Government of Bangladesh =VS= Md Sohel Rana, (Civil), 2018 (2) [5 LM (AD) 182] ....View Full Judgment

Article 102

The Constitution of Bangladesh, 1972
Article 102 read with
The Code of Civil Procedure, 1908
Order 21 Rule 90
Writ petition is not maintainable–
The present appellant did not challenge the judgment and decree passed by the Artha Rin Adalat nor he filed any case under Order 21 Rule 90 of the Code of Civil Procedure in the execution case challenging the auction sale. In such view of the matter the very writ petition was not maintainable. .....Mohd. Junayed Quader =VS= Artha Rin Adalat, Dhaka, (Civil), 2018 (2) [5 LM (AD) 418] ....View Full Judgment

Article 102

The High Court Division could not and cannot exercise any power either original, appellate and other jurisdiction and powers unless such powers are vested on it either by any provision of the Constitution or law. In other words, the High Court Division cannot exercise a jurisdiction unless it is clothed with such power either by any provision of the Constitution or by any other law. (Md. Abdul Wahhab Miah, J)......Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461] ....View Full Judgment

Article 102 (2)

Whether the High Court Division can issue suo motu rule–
Where the fundamental right of a citizen is infringed, the High Court Division can issue suo motu rule provided the infringement of right is amenable to the writ jurisdiction and is of great public importance. In this context, a news paper report, post-card, written material may be treated as an application in order to overcome the obstacle of application. But before issuance of suo motu rule, the High Court Division must record its satisfaction in clear terms about exercise of such power. The High Court Division shall exercise such power sparingly. (Syed Mahmud Hossain, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461] ....View Full Judgment

Article 102

The amendment has disrupted the constitutional fabric of Article 102 by introducing territorial concept thereby creating difficulties and incongruities. The amendment has created 7 High Court Divisions of mutually exclusive territorial jurisdiction. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 102

Whether, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution is empowered to award monetary compensation or compensatory cost to a victim in a case of the violation of fundamental rights–
The paramount object and purpose for which Article 102 has been enacted and the relevant factor and provision on which the interpretation of the Article 102 has been linked, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution, which is an instrumentality and a mechanism, containing both substantive and procedural provisions “ to realise the objectives, purposes, polices, rights and duties which [the people] have set out for themselves and which they have strewn over the fabric of the Constitution,” can award monetary compensation or compensatory cost mostly in appropriate cases for violation of fundamental rights which must be gross and patent i.e. incontrovertible and ex-facie glaring or that violation should appear unjust, unduly harsh or oppressive on account of the victims disability or personal circumstance but As no prayer was made regarding exemplary monetary costs or monetary compensations in the writ petitions and related affidavits, the High Court Division erred in law in fully relying on the submissions of the learned Senior Advocate for the writ petitioners in passing the orders for monetary compensation or compensatory costs and as such they said orders have been made without lawful authority and are liable to be set aside. .....Government of Bangladesh =VS=Nurul Amin, (Civil), 2018 (1) [4 LM (AD) 526] ....View Full Judgment

Article 102

Election Commission may direct re–poll or accept the result of a poll though disputed by some candidates– Election Commis­sion's approval or concurrence is necessary for any fresh election if directed by the Returning Officer. At an intermediary stage of election, writ jurisdiction is not available particularly when disputed questions of facts are involved except in exceptional circumstances such as coram–non­judice or malice in law. Writ jurisdiction cannot be invoked as alternative remedy is available by way of election petition before the Tribunal. Zaker Hossain vs Abdur Rahim 42 DLR (AD) 153. ....View Full Judgment

Article 102(5) read with article 117(2)

Clause (5) of article 102 read with article 117(2) of the Constitution: Except on the limited scope challenging the vires of law or if there is violation of fundamental rights, the power of the High Court Division is totally ousted under clause (5) of article 102 read with article 117(2). If a public servant or an employee of statutory corporation wants to invoke his fundamental rights in connection with his terms and conditions of service, he must lay foundation in the petition of the violation of the fundamental rights by sufficient pleadings in support of the claim. It will not suffice if he makes evasive statement of violation of his fundamental rights or that by making stray statements that the order is discriminatory or malafide. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 102

he writ petition challenges departmental proceeding relating to the service of the petitioner, a Government servant. High Court Division rightly found a bar to its jurisdiction in entertaining the petition. Md Serajul Islam vs Director General of Food 42 DLR (AD) 199. ....View Full Judgment

Article 102

The High Court Division cannot sit over the opinion of the Council as an appellate forum–
Judicial review against such removal is not available in this particular case in the facts of the given case, inasmuch as, judicial review is available against such order on limited grounds. The High Court Division cannot sit over the opinion of the Council as an appellate forum or from the Order of the President pursuant to the recommendation of the Council. The High Court Division has apparently equated a proceedings taken by a sitting Additional Judge against an order of removal on the ground of misconduct with an ordinary litigant which seeks judicial review against an administrative action. There is no doubt that judicial review is a basic feature of our constitution so also the rule of law but that does not mean that the same doctrine will be applicable in all cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231] ....View Full Judgment

Article 102

Alternative remedy– Alternative remedy of appeal provided in the Customs Act, and pleaded as a bar against writ jurisdiction, is no equally efficacious remedy. Collector of Customs, Ctg vs A Hannan 42 DLR (AD) 167. ....View Full Judgment

Article 102

The Constitution of Bangladesh, 1972
Article 102 read with
State Acquisition and Tenancy Act, 1950
Section 92
We maintain the judgment and order passed by the High Court Division so far as it relates to the nature of the land in question and we further hold that the nature of the land in question shall have nothing to do with the title of the parties therein. .....Government of Bangladesh =VS= Md. Abdul Malek, (Civil), 2018 (1) [4 LM (AD) 216] ....View Full Judgment

Article 102

Contract– Breach of contract – ­Government acting with malafide intention–Writ petition for breach of obligation against Government lies when the latter violates the contract with malafide intention. SMS Samity vs Bangladesh 39 DLR (AD) 85. ....View Full Judgment

Articles 102 read with 27, 28, 29 and 31

Discrimination–
So whenever any person being on the same footing is not treated equally in accordance with law, such action of the authority can clearly be termed to be discriminatory and/or arbitrary which is not sustainable in law. .....Sher-E-Bangla Agricultural University =VS= Asia Rahman Shova, (Civil), 2018 (1) [4 LM (AD) 333] ....View Full Judgment

Article 102

Dispute centers regarding payment of rent to the Government the latter denying payment, when lessee proved payment. Before cancelling the lease Government must give the lessee an opportunity of being heard to prove his case. SMS Samity vs Bangladesh 39 DLR (AD) 85. ....View Full Judgment

Article 102(2)

Writ petition exparte and disposed of the same on merit cannot be sustained–
The facts are otherwise; the writ petitioners did not turn up when the writ petition was taken up for hearing, yet the learned Judges heard the writ petition exparte and disposed of the same on merit in the manner as stated hereinbefore on the verbal submissions of the learned Attorney General. We conclude that the High Court Division acted illegally in disposing of the writ petition exparte on merit by the impugned judgment and order in the absence of the writ petitioners and, as such, the same cannot be sustained. The impugned judgment and order of the High Court Division is set aside. The writ petition is sent back to the High Court Division for hearing afresh and for disposal in accordance with the law. .....Mujibar Rahman (Md) =VS= Government of Bangladesh, (Civil), 2018 (1) [4 LM (AD) 280] ....View Full Judgment

Article 102

As to interpretation of any term of the contract or lease dispute should be resolved after hearing the lessee–breach alleged must be established by Government. SMS Samity vs Bangladesh 39 DLR (AD) 85. ....View Full Judgment

Article 102(1)

Except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. Appellate Division observed that except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. None of the above conditions is available in this case and therefore, the writ petition is not maintainable. In respect of Abul Bashar, the writ petition was summarily rejected on the ground that the order impugned in writ petition cannot be said to be malafide or passed for collateral purpose and that no discrimination has taken place at all. In respect of case no.3 of 2000 since no inquiry report is available with the record, we direct the concerned Ministry to appoint an inquiry officer with the consultation of the G.A. Committee and complete the inquiry proceedings within two months from date, since the case is very old one. So this decision does not have any help for the respondent. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 102

Contractual right based on the licence is not amendable to Writ Jurisdiction of the High Court. Sekandar Ali Miah and others vs Chairman.BJWTA. 40 DLR (AD) 262. ....View Full Judgment

Article 102

The Constitution of Bangladesh, 1972
Article 102 read with
The Foreign Exchange Regulation Act, 1947
Section 3(2)(iii)
Principle of natural justice–
We are of the view that the High Court Division has correctly decided that in the facts and circumstances of this case the principle of justice has not been violated. Clearly, the petitioner did not feel sufficiently aggrieved by the lack of opportunity given him by way of show cause notice or opportunity of being heard. He did not immediately rush to the High Court Division challenging the violation of the principle of natural justice. On the contrary, he took the decision to make himself be heard by the authority concerned by making representations and by supplying other supporting evidence. .....Amzad Hussain =VS= Bangladesh Bank, (Civil), 2018 (1) [4 LM (AD) 33] ....View Full Judgment

Article 102

Availability of alternative remedy by way of appeal or revision will not stand in the way of invoking writ jurisdiction raising purely a question of law or interpretation of statute. MA Hai vs TCB 40 DLR (AD) 206. ....View Full Judgment

Article 102

Warrant of Precedence being arbitrary, irrational, whimsical and capricious is subjectto judicial review–
The High Court Division having considered the respective status and positions of different constitutional functionaries and the persons in service of the Republic rightly held that though impugned Warrant of Precedence is a policy decision of the Government yet “in the absence of evidence of any discernible guidelines, objective standards, criteria or yardsticks upon-which the impugned Warrant of Precedence is ought to be predicated, we feel constrained to hold that the said Warrant of Precedence cannot shrug off the disqualification of being arbitrary, irrational, whimsical and capricious and is, therefore, subject to judicial review under Article 102 of the Constitution.” .....Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40] ....View Full Judgment

Article 102

It was contended that the writ petition being a proceeding in the nature of quo warranto questioning the holder of public office about his title, the question cannot be left to be decided by compromise between the private parties as it is not a private grievance between the appellant and respondent No.1. Md Mostafa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. ....View Full Judgment

Article 102

Refusing to grant registration to the 4 stroke C.N.G. Auto Rickshaw of the writ-petitioner– No C.N.G. Auto Rickshaw without having route permit will be given registration– This is a policy decision of the authority concerned to solve/reduce the problem of traffic jam in Sylhet district and this decision was taken in presence of Finance Minister and also the officials of Bangladesh Road Transport Authority, Sylhet circle. We find no illegality in this decision.
We find no illegality in the impugned order dated 12.08.2010 refusing to grant registration to the 4 stroke C.N.G. Auto Rickshaw of the writ-petitioner. The impugned judgment and order of the High Court Division, therefore, is liable to be set aside. Hence the appeal be allowed without any other as to cost. ...Deputy Commissioner, Sylhet =VS= Abdul Kaher Eju, (Civil), 2020 [9 LM (AD) 13] ....View Full Judgment

Article 102(2)

Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra-ordinary jurisdiction–
In proceedings under Article 102 of the Constitution it is not open to the High Court Division to hold an elaborate enquiry into disputed and complicated questions of fact. The High Court Division would only interfere with the proceeding of a criminal court if it is found that such proceeding is without jurisdiction and if there is no other efficacious relief provided in law against such proceeding or the vires of the law basing on which the proceeding initiated is challenged. Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra-ordinary jurisdiction. Such powers are to be exercised in rare and exceptional cases. It is true that existence of alternative remedy is not an absolute bar to entertain writ petition by the High Court Division but to declare a criminal proceeding illegal it is to be established that the Court acted without jurisdiction or the vires of the law is in question. In this case no such strong ground has been made out. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 89] ....View Full Judgment

Article 102

Remedy by a quo warranto proceeding in which the title to a public office may be questioned is independent of remedy available to a limited number of persons having personal grievances. Md Mostafa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. ....View Full Judgment

Article 102

Service matter– The writ-petitioner-respondent has reached the age of superannuation during pendency of the writ petition and as such, there is no scope for his reinstatement in service. ...Bangladesh Sugar and Food Industries Corporation =VS= Md. Shamsuddin Sheikh, (Civil), 2020 [9 LM (AD) 101] ....View Full Judgment

Article 102

Mere delay in raising the question is not a ground for denying this extraordinary remedy. Md Mostufa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. ....View Full Judgment

Article 102

Bills of the goods under the letters of credit– The discrepancy has been alleged in respect of the bills of the goods under the letters of credit which, allegedly have been obtained by practicing fraud in collusion with the beneficiary and others involved therein and since civil and criminal cases are pending in respect of the concerned disputed bills the High Court Division had no jurisdiction to deal with the same under judicial review.
Mr Alam also submitted that in respect of the self same L/C amount of bills, Bangladesh Krishi Bank instituted Title Suit Nos. 503 of 2014 and 504 of 2014 in the 4th Court of Joint District Judge, Dhaka. Side by side, DUDAK has also lodged two FIRs relating to the same bills after finding prima facie case of fraud, prayed that unless the impugned judgment of the High Court Division is set aside, those suits and the criminal cases will be rendered infructuous.
That dispute regarding the transaction is involved in all the matters which cannot be adjudicated upon under the judicial review as provided under Article 102 of the Constitution.
The facts and circumstances stated above and in view of the findings and decision arrived at by this Division in Civil Appeal No. 307 of 2015 along with Civil Appeal No. 308 of 2015 and Civil Petition No. 2971 of 2015, we find merit in these appeals and, as such, the same are allowed. The impugned judgment and order passed by the High Court Division is set aside. Accordingly, civil petitions for leave to appeal and the review petitioners are also disposed of in the light of the aforesaid judgment and order. ...Sonali Bank Limited=VS=Roseburg Industries Limited, (Civil), 2020 [9 LM (AD) 173] ....View Full Judgment

Article 102

Disputed facts–High Court Division erroneously interfered in the writ jurisdiction on a matter which involves a disputed question of fact–Decision is liable to be set aside– Appeal allowed. Abdul Hamid Khan vs Miah Nurul Islam & others 42 DLR (AD) 49. ....View Full Judgment

Article 102

In a summary proceeding under Article 102 of the Constitution it is not possible to record a finding to a disputed question of fact. Farid Mia vs Amjad Ali 42 DLR (AD) 13. ....View Full Judgment

Article 102

Court held that Article 102 can be invoked to require a person to show under what authority he claims to hold any public office only when the said person actually assumes that office or purports to do the same. Farid Mia vs Amjad Ali 42 DLR (AD) 13. ....View Full Judgment

Article 102

The appellant filed the writ petition at a time when the Court of Settlement was yet to be constituted. The High Court Division having admitted the writ petition, it was not quite proper to decline interference after three years on the ground of alternative remedy before the Court of Settlement and the very fact that the Government did not care to file an affidavit could be held to be sufficient for the purpose of disentitling the Government from claiming possession and making a list including the appellant's property under the Ordinance. Begum Lutfunessa vs Bangladesh 42 DLR (AD) 86. ....View Full Judgment

Article 102

This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution–
The appellants, in possession, of the disputed lands, have raised a serious question as to the validity of the writ petitioner’s title and her claimed possession and thereafter, dispossession and that there is no conclusive evidence of the writ petitioner’s title in the same, the High Court Division in an application under Article 102 of the Constitution cannot put the writ petitioner in possession by dispossessing the appellants from the case land. In the case of Mohan Panday V. Usha Rani Rajaria reported in 1992 (IV) SCC 61 it has been laid down that no mandamus can be based on a Civil Court decree, which would be in the nature of executing or giving effect to a civil decree. This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. We find substance in the appeals. All the appeals are allowed. ...Bangladesh Railway =VS= Most. Monowara Begum, (Civil), 2019 (1) [6 LM (AD) 164] ....View Full Judgment

Article 102

Writ petition against decision of Election Tribunal– There is no word of finality attached to the decision of the Election Tribunal in the Rules. Even if there was any, the jurisdiction of the High Court Division under Article 102 could not be limited by such words of finality. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. ....View Full Judgment

Article 102(2) and 103

A Judge will dispense justice in accordance with law by treating everybody equal–
A Judge is also oath bound to “do right to all manner of people according to law, without fear or favour, affection or ill-will”; this means that a Judge will dispense justice in accordance with law by treating everybody equal, be it poor or rich, powerful or powerless so ever and irrespective of caste and creed, religion and belief without fear or favour or ill-will and when a Judge of the High Court Division disposes a matter sitting in any jurisdiction, either constitutional or civil or criminal or company matter or any other jurisdiction, he gives reasons in support of his decision keeping in view the provisions of law in the context of the given facts and circumstances of a particular case. Any one who feels aggrieved by the decision and/or the order or the decree of a Judge of the High Court Division, can approach this Division under article 103 of the Constitution and in this way, a judgment and order or order or a judgment and decree of a Judge or Judges of the High Court Division as the case may be, is under scrutiny by this Division. (Md. Abdul Wahhab Miah, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 102

There being no other forum provided by law for appeal and there being no other efficacious remedy open to the aggrieved party against the order of the Election Tribunal acting under the Dhaka Municipal Corporation (Election of Commissioners) Rules, 1983, the writ jurisdiction of the High Court Division was attracted. High Court Division was plainly wrong in rejecting the writ petition as not maintainable. Matter remitted back to the High Court Division for disposal on merit. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. ....View Full Judgment

Article 102, 103 and 105

The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution–
Under our constitutional dispensation, it is the Constitution, and not Parliament, which is supreme. Parliament’s legislative power is subject to the provisions of the Constitution and any law to the extent of inconsistency with the provisions of the Constitution is void. The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution.
In our Constitution executive and legislative powers are expressly vested but the vesting of such power in judicature is absent. Vesting is a necessary decisive factor, where judicial powers have been in the hands of the judicature since before the birth of our Constitution. (Syed Mahmud Hossain, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 102

Maintainability of writ petition–that there is no appeal provided against a decision can never be urged to exclude the writ jurisdiction of the High Court Division, rather it is all the more reason that the petitioner in such a case (of no remedy) cannot be thrown out easily. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. ....View Full Judgment

Article 102(2)

The writ petitioners have challenged the vires of an Act of Parliament, that is to say, an amendment to the constitution which has been effective by Gazette Notification dated 22nd September, 2014 and secondly, this amendment has become a part of the constitution and the same cannot be judged by the touchstone of an ordinary legislation.
This Judges removal mechanism was made by substituting the old provision. In section 2 of the Act it is said, ‘In the Constitution, in article 96, for clauses (2), (3), (4), (5), (6), (7) and (8), the following clauses (2) (3), and (4) shall be substituted.’ As per law if a substituted provision is declared void or repealed, the former provision shall be effective immediately. This court in Ful Chand Das V. Mohammad Hamad, 34 DLR (AD) 361 held that when a provision of law repealed by a statutory provision which is declared ultra vires the constitution, the former provision is automatically revived on such declaration. If the amended statute is wholly void, the statute sought to be amended is not affected but remains in force. Where the law was amended but subsequently the amendment was repealed, the amendment has to be completely ignored and the provisions of the law as they stood prior to amendment are to be taken into consideration. (Mir Laik Ali V. Standard Vacuum Oil Co., 16 DLR (SC) 287. In Ram Dayal V. Shankar Lal, AIR 1951, Hyd 140(FB), it was held that when an Act passed repeals another in whole or in part and substitutes some provision in lieu of the provision repealed, the repealed enactment remains in force until the substituted provision comes into operation. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 102

Alternative remedy provided in the Customs Act and pleaded as a bar against writ jurisdiction is no equally efficacious remedy. Collector of Customs vs A Hannan 42 DLR (AD) 167. ....View Full Judgment

Article 102

We do not think that the respondent could rightfully claim any benefit on the basis of general findings made in the documents (Annexure 'D' and 'E') after all these months, particularly when he made no move after the District Election Officer had refused to accept his nomination paper and further held– We do not think that it was right and proper for the High Court Division to have directed the Election Commission to dispose of the application of the respondent again. It is apparent from the facts noticed above that respondent missed the bus due to inertia and it is well known that delay not only defeats justice but in some cases it defeats rights also. Abdul Jabbar Dakua vs Kanchan Ali Sikder 42 DLR (AD) 101. ....View Full Judgment

Article 102

The High Court on examina­tion of the different provisions of the Ordinance including section 7 came to the finding that the section can give the appellant exactly the same remedy which she was praying for in the writ petition, that the Court of Settlement has been given the specific power to exclude the disputed property from the impugned list–when the Statute devised an alternative forum for giving complete relief to the appellant, she could not invoke the writ jurisdiction without exhausting the remedy provided for in the Ordinance–This view taken by the High Court Division is well in accord with the settled principle governing exercise of discretionary jurisdiction under Article 102 of the Constitution–When the law itself provides for a remedy which is to be sought for in writ petition no interference with the impugned judgment is called for. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. ....View Full Judgment

Article 102

The High Court Division, in our opinion, could itself interfere, notwithstanding anything correctly observing that there was an alternative remedy under section 7 of the Ordinance in view of the particular facts of the case. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. ....View Full Judgment

Article 102

When the Ministry of Home Affairs did not care to file an affidavit, it could be held to be sufficient for the purpose of the present case disentitling the government from claiming possession and making a list including the appellant's property under the Ordinance. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. ....View Full Judgment

Article 102

Internal exercises of the Government not communicated to the concerned person are not enforceable. No legal right can be founded on the notings done by the Government and furnished in the Writ petition. Bangladesh vs Dhaka Steel Works Ltd 45 DLR (AD) 70. ....View Full Judgment

Article 102(1)

The impugned legislation (the Amending Act No. 14 of 1989 which amended PO No. 26 of 1973) has not violated any provision of the Constitution– Motives of the majority party in the Legislature in passing an enactment or its merits are non issues in a proceeding under Article 102( 1) of the Constitution when the constitutionality of an enactment is prima facie unassailable. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. ....View Full Judgment

Article 102(1)

Article 102 is a mechanism for the enforcement of Fundamental Rights which can be enjoyed by an individual alone insofar as his individual rights are concerned, but which can also be shared by an individual in common with others when the rights pervade and extend to the entire population and territory: Per Mustafa Kamal J delivering the Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. ....View Full Judgment

Articles 102(1) & 117(2)

Jurisdiction of Administrative Tribunal– It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article 102(1) is not frittered away or misused. Mujibur Rahman vs Bangladesh 44 DLR(AD) 111. ....View Full Judgment

Article 102(2)

Provision of Article 102(2) or any other provision of the Constitution do not preclude the High Court Division either to re­consider or to review the correctness of its judgment upon fresh material(s). Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41. ....View Full Judgment

Articles 102(2) & 117

Maintainability of writ petition in service matter–It is found from the facts of the writ petitions that the question of fundamental right invoked therein has been so mixed up with the facts and statutory rules that the question of fundamental right cannot be extricated for exclusive consideration in a petition for enforcement of fundamental right. Therefore, the High Court Division rightly held the writ petitions to be maintainable under Article 102(2). Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19. ....View Full Judgment

Article 102(2)(a)(i)

Mandamus, require­ment of– In order to enforce the performance by public bodies of any public duty by mandamus, the applicant must have a specific legal right to insist upon such performance. National Engineers vs Ministry of Defence 44 DLR (AD) 179. ....View Full Judgment

Article 102(2)(a)(i)

The writ of mandamus can be issued for enforcing the performance of duty by Government or its officials only when they are under a legal obligation towards a subject to carry out specific ministerial duties imposed by law. The Government is under a 'legal obligation' towards the respondents" to carry out specific ministerial duties", thereby imposed upon. them by law, namely, "to complete the formalities to transfer the mill". Secretary, Ministry of Industries vs Saleh Ahmed & others 46 DLR (AD) 148. ....View Full Judgment

Article 102(2)(a)(ii)

The High Court Division acting under Article 102(2)(a)(ii) can only make a declaratory order and nothing more and unless it is required by law to do it cannot direct any authority to do a particular thing. Bangladesh, represented by Secretary, Establish­ment Division and others vs Mahbubuddin Ahmed 50 DLR (AD) 154. ....View Full Judgment

Article 102(2)(b)(i)

Habeas corpus– decision of foreign jurisdictions. In view of the wider jurisdictional approach this court has taken in habeas corpus matters the decision of foreign jurisdictions may not be always helpful to us. We may benefit from some well–known earlier decisions for their persuasive value. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. ....View Full Judgment

Article 102(2)(b)(i)

Custody on the plea of conviction–Where a prisoner is in custody on the basis of an order of conviction the onus of the respondent is discharged as soon as the return relating to the appellant's custody shows that there is an order of conviction justifying the custody. But the conviction is to be placed before the court for its satisfaction whether the irregularity in it can be overlooked. The warrant of commitment issued by one not authorised under the law can hardly prove the conviction. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. ....View Full Judgment

Article 102(2)(b )(i)

If it is manifest from the writ petition itself that the cause or manner of detention stands adequately explained and justifed on the face of it, the respondents need not file an affidavit–in–opposition and may support the detention orally relying on the petition itself. Nasima Begum vs. Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD) 102. ....View Full Judgment

Article 102(2)(b)(ii)

Writ of quo warranto –The election of a candidate could not be challenged under Article 102 of Constitution but when the candidate after being elected assumes the office of Chairman or other Public Office then any person can invoke the provision of sub–article 2(b)(ii) of Article 102. Farid Mia vs Amjad Ali 42 DLR (AD) 13. ....View Full Judgment

Article 102(3)

Granting of an interim order under Article 102 is not an absolute plenary power– It is totally prohibitive in relation to certain laws. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)

To obtain an interim order, a writ petitioner must not only make out a prima facie case, but a strong prima facie case. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102 (1) (2)

At the risk of repetition, I say that in the Rule issuing order, the District Magistrate and Deputy Commissioner was not, at all, asked to 70 show cause as to why fatwas including the instant one should not be declared unauthorized and illegal and thus he was not given any chance of hearing on the subject or the point or the issue. It may be stated that the Rule was issued only upon the District Magistrate and Deputy Commissioner, Naogaon. I failed to understand how the High Court Division could merrily exercise its jurisdiction under article 102 and hold all the fatwas including the instant one as unauthorized and illegal without giving the sole respondent any chance of hearing. It was clearly a violation of the principles of natural justice. I could not lay my hands on any decision either under writ jurisdiction or under the civil jurisdiction by this Court or any other superior Court approving such kind of exercise of power by the High Court Division. I am afraid that if this kind of exercise of power by the High Court Division is approved or sanctioned, then the High Court Division shall be on the spree of disposing of the Rule, in exercising jurisdiction under article 102, giving relief to a party at its own whims and sweet will beyond the pleadings and the prayer and without caring the right of hearing of the other side. And in the process, it will give rise to judicial anarchy. It also needs to be mentioned that the language used in the Rule issuing order “and/or pass such other or further order or orders as this Court may deem fit and proper”, in no way, gives a Court jurisdiction to give relief to a party or to hold something or to make any declaration or to make observations and recommendations beyond the Rule issuing order; such a language gives jurisdiction to a Court or authorises a Court to give only the ancillary or consequential relief that may follow from the Rule issuing order. Therefore, I am constrained to hold that the High Court Division exceeded its jurisdiction as well in making the Rule absolute in the terms as indicated hereinbefore. (Md. Abdul Wahhab Miah, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461] ....View Full Judgment

Article 102(4)

It is in the public interest to protect private interest which stands in the danger of being irretrievably damaged or faces extinction. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)

An interim order can also be passed when the order under challenge is shown to suffer from an absolute lack of jurisdiction (as distinct from a mere difference of interpretation between various relevant authorities or between a relevant authority and the writ petitioner) or clear or patent excess of jurisdiction or patent mala fide without requirement of further proof. Commis­sioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)

Regard for the public welfare is the highest law and in each case the High Court Division will consider whether in spite of prima facie case and balance of convenience the individual interest should be subjugated to public interest. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)

An analysis of clause (4) brings into sharp focus the definite constraints within which the High Court Division has to pass an interim order under clause (I) or sub–clause (a) of clause (2) of Article 102 of the Constitution. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)

Personal guarantee is a very weak and uncertain security which should be avoided in the best interest of public revenue. Commissioner of Customs, Mongla Customs House and others vs SARC Enterprise 51 DLR (AD) 165. ....View Full Judgment

Article 102(4)(1)(a)(b)

The High Court Division will not consider whether an interim order will actually prejudice or interfere with the implementation of any development programme or work or will actually be otherwise harmful to the public interest, but will only consider whether such interim order "is likely to have" the said effect. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)(1)(b)

The conditions precedent for the exercise of this power are mandatory, not directory. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)(1)(b)

A "reasonable notice" means a reasonable length of time within which it is possible and feasible for the Attorney–General to obtain instructions from relevant quarters. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article l02(4)(1)(b)

What is reasonable notice will depend upon the facts and circumstances of each case, but if the Attorney­General alleges and proves to the satisfaction of the Court that he was not given reasonable notice of the application, one of the condition precedents for the exercise of the power is not fulfilled and the interim order renders itself liable to interference. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(4)(1)(b)

The appearance of the Attorney–General before the Court is only for the purpose of assisting the Court in forming its satisfaction. But satisfaction is an independent constitutional obligation of the High Court Division and it does not depend upon the appearance or non–appearance of the Attorney ­General. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. ....View Full Judgment

Article 102(2)

Code of Criminal Procedure, 1898
Section 561A read with
Constitution of Bangladesh, 1972
Article 102(2)
Extra ordinary power– It is an extra-ordinary power it should be exercised sparingly, that, is to say, in rarest of the rare cases. So, the High Court Division should guard while exercising this power that the principles are applied in the facts of the case. This Division has given guidelines while exercising the extra-ordinary powers in Abdul Quader Chowdhury vs State, 28 DLR (AD) 38 and those guidelines have been reiterated in subsequent cases in Bangladesh vs Tankhang Hock, 31 DLR (AD) 69; Ali Akkas vs Anayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16.
The High Court Division cannot exercise its extra-ordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do not constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying the High Court Division that the conviction is based no legal evidence. Apart from that there is no scope on the part of the High Court Division to exercise its extra ordinary powers. ...Anti-Corruption Commission =VS= Shahjahan Omar(Md), (Criminal), 2020 [9 LM (AD) 281] ....View Full Judgment

Article 103 and 104

Constitution of Bangladesh, 1972
Article 103 and 104 read with
১৯৯৮ সনের উপসচিব পদে নিয়োগ /পদোন্নতির নীতিমালার ‘ঙ’ দফা বা ২০০২ সনের বিধিমালার ৫ বিধি
উপ-সচিবগনের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে যুগ্ম-সচিব পদে নিয়োগ পাইবেন। একই ভাবে যুগ্ন-সচিবগনের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে অতিরিক্ত সচিব পদে নিয়োগ পাইবেন- প্রকৃতপক্ষে মাঠ পর্যায়ে প্রশাসন এবং নির্বাহী বিভাগের সর্বোচ্চ পর্যায়ের সহিত উপ-সচিব, যুগ্ন-সচিব, অতিরিক্ত সচিব ও সচিবগণ সেতুবন্ধের মতো কার্য করেন। এই কারণেই বৃটিশ আমল হইতেই সচিবালয়ের উপ-সচিব ও তৎউর্ধ পদে সব সময়েই প্রশাসনিক কর্মকর্তাগন নিয়োগ ও পদোন্নতি পাইতেন।
একমাত্র ব্যতিক্রম SSP Order এর মাধ্যমে সকল ক্যাডার হইতে উপ-সচিব ও তৎউর্ধ পদে নিয়োগ/পদোন্নতি প্রদান করা হইয়াছিল যাহা ১৯৮৯ সনেই পরিত্যক্ত হইয়াছে।
যেহেতু PSC এর সুপারিশ পর্যায়ে হইতেই কর্মকর্তাগণ বিভিন্ন ক্যাডারে শ্রেণীভূক্ত হইয়া যায় সেই হেতু সচিবালয়ের প্রশাসনিক উপ-সচিব পদে প্রশাসনিক কর্মকর্তাগণ ব্যতিরেকে অন্য ক্যাডারের কর্মকর্তা গনের পুনরায় নিয়োগ বা পদোন্নতি প্রাপ্ত হইবার কোন সহজাত অধিকার নাই।
এইরূপ আইনগত অবস্থায় ১৯৯৮ সনের উপ-সচিব পদে নিয়োগ/পদোন্নতির নীতিমালার ‘ঙ’ দফা বা ২০০২ সনের বিধিমালা ৫ বিধি এবং তৎসংশ্লিষ্ট প্রথম তফসিলে বর্ণিত পদ্ধতি যে ৭৫% পদ সিভিল সার্ভিস (প্রশাসন) এবং অবশিষ্ট ২৫% পদ অন্যান্য সকল ক্যাডারের সিনিয়র স্কেল পদে কর্মরত কর্মকর্তাদের মধ্য হইতে পদোন্নতির মাধ্যমে উপ-সচিব পদে নিয়োগ প্রদানের বিধি প্রণয়নকে অযৌক্তিক (unreasonable) বা যথা যুক্ত ভিত্তি-নিকষ বহির্ভূত (irrational basis) হইয়াছে তাহা বলা যায় না, বরঞ্চ উক্ত বিধান যৌক্তিক, বাস্তব সম্মত এবং সংবিধান সম্মত হইয়াছে বলিয়াই প্রতীয়মান হয়।
প্রথম তফসিলের দ্বিতীয় ক্রমিকে বর্ণিত যুগ্ম-সচিব এবং তৃতীয় ক্রমিকে বর্ণিত অতিরিক্ত সচিব পদের কোটা পদ্ধতির কোন যথোপযুক্ত ভিত্তি-নিকষ(rational basis) পাওয়া যায় না। ইহা একটি অযৌক্তিক (unreasonable) শ্রেণীভুক্তকরণ (classification) বিধায় অবৈধ হইবে।
যখনই কোন কর্মকর্তা ২০০২ সনের বিধিমালা অনুসারে উপ-সচিব পদে পদোন্নতি প্রাপ্ত হইলেন, তাহা যে কোন ক্যাডারে হইতেই হউক না কেন, তিনি তখন একজন পরিপূর্ণ উপ-সচিব। তাহার পূর্বের ক্যাডার পরিচয় তখন বিলুপ্ত হইবে। তিনি সচিবালয়ের উচ্চতর উপ-সচিব পদে তখন তিনি অধিষ্ঠান। সেই অধিষ্ঠা(status) লইয়াই অন্য সকল উপ-সচিবের সহিত এক শ্রেণীভূক্ত হইয়া সমস্ত অধিকার লইয়া তিনি পরবর্তী উচ্চতর যুগ্ম-সচিব পদে বা পরবর্তীতে অতিরিক্ত সচিব পদে পদোন্নতি প্রাপ্ত হইবার জন্য বিবেচিত হইবেন।
এমত অবস্থায় যুগ্ম-সচিব ও অতিরিক্ত সচিব পদে পদোন্নতির জন্য কোটা আরোপ অবৈধ বিধায় উক্ত উভয় ক্ষেত্রে নিয়োগ পদ্ধতি বাতিল ঘোষণা করা হইল। উপ-সচিবগনের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে যুগ্ম-সচিব পদে নিয়োগ পাইবেন। একই ভাবে যুগ্ন-সচিবগনের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদ্দোন্নতির মাধ্যমে অতিরিক্ত সচিব পদে নিয়োগ পাইবেন।
অতএব, সংবিধানের ১০৩ ও ১০৪ অনুচ্ছেদ এর আওতায় নিম্নলিখিত নির্দেশনা প্রদান করা হইল:
ক) ১৯৯৮ সনের পূর্বতন নীতিমালা এর উপ-সচিব পদে পদোন্নতি/নিয়োগের নীতিমালার ‘ঙ’ দফা বৈধ ছিল;
খ) সরকারের উপ-সচিব, যুগ্ম-সচিব, অতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২ এর ৫ দফা বৈধ;
গ) ২০০২ সালের বিধিমালার প্রথম তফসিলের ১ম ক্রমিকে বর্ণিত উপ-সচিব পদে নিয়োগ পদ্ধতি বৈধ;
ঘ) প্রথম তফসিলে ২য় ও ৩য় ক্রমিকে বর্ণিত যুগ্ম-সচিব ও অতিরিক্ত সচিব পদে নিয়োগ পদ্ধতিতে কোটা আরোপ অবৈধ বিধায় উক্ত দুই পদে পদোন্নতি জন্য কোটা পদ্ধতি বাতিল করা হইল। ...Government of Bangladesh =VS= Tauhid Uddin Ahmed, (Civil), 2020 [9 LM (AD) 185] ....View Full Judgment

Article 103

Granting of leave–
Under article 103 of the constitution a litigant has acquired right; (a) if the High Court Division certifies that the case involves a substantial question of law as to the interpretation of constitution, (b) the High Court Division has confirmed a sentence of death or sentenced a person to death or imprisonment for life, and (c) the High Court Division has imposed punishment on a person for contempt. In respect of a leave petition, the application has no right at all. If this court grants leave then the applicant has entered into the appellate forum. If the case covers Clauses (a) to (c) above, there will be no necessity to obtain leave from this court. The applicant has no necessity of praying for granting leave. In respect of leave petition, the court may refuse leave and dismiss the petition summarily either ex-parte or after issuing notice upon the respondent. Normally notice is served by the petitioner through his Advocate-on-record before filing the petition. While hearing the petition for leave to appeal, the court is called upon to see whether the petitioner has a case so that he should be granted leave from the judgment of the High Court Division. If the court grants leave, he will enter into the appellate forum and if the court does not grant leave he does not enter into the appellate forum. He still remains in the discretionary jurisdiction of the court. Therefore, granting of leave is not sine qua non in a leave petition. .....Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, (Criminal), 2018 (2) [5 LM (AD) 226] ....View Full Judgment

Article 103 (2) (c)

Contempt of Court
Three broad categories of contempt namely (1) scandalisation of the court, (2) disobedience to the orders of the court and breach of undertakings given to the court and (3) interference with the due course of justice.Appellate Division observes that the news report published in the daily Bhorer Kagoj, impugned before the High Court Division, certainly had the effect of scandalizing the justice delivery system. However, upon careful, scrutiny of the full reports Appellate Division inclined to accept that the report in the daily Prothom Alo does not by itself have the effect of scandalizing the concerned Judge or the judiciary. What the report does, in fact, is bring into focus scandals involved in the tabulation sheets of examination marks by the Chittagong University. However, the report by the Bhorer Kagoj goes further than a simple narration of the inquiry and findings with regard to the manipulation of marks in the tabulation sheets by the office of the Controller of Examination of Chittagong University and gives the personal opinion of the reporter as to what effect the corruption, forgery, interpolation etc. brings upon the judiciary when such persons whose examination results are manipulated are appointed as Judges of the Supreme Court. This would clearly have a negative effect on the minds of the general public and undermine their confidence in the justice delivery system.
Ekramul Haque Balbul -Vs.- Muhammad Faiz 5 ALR (AD)2015(1) 109 ....View Full Judgment

Article 103

Where serious defect in the finding of fact given by the High Court Division is discovered and the same are considered not tenable then it should be open to the Appellate Division to come to its own) independent finding upon a re-examination or the evidence untrammeled by the opinion of the Court appealed from. State Vs. Abdus Sattar 43 DLR (AD) 44. ....View Full Judgment

Article 103

State filed a leave petition against the order of acquittal by the High Court Division which was dismissed after hearing—Subsequently the informant filed another leave petition. There is no scope for hearing the second petition at the instance of the informant. Mostoshir Ali Vs. Arman Ali 42 DLR (AD) 12. ....View Full Judgment

Article 103

Since we are of the view that writ petitions were not maintainable the second submission of the petitioner does not deserve any consideration. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 89] ....View Full Judgment

Article 103(3)

Consideration of evidence afresh on a point missed by the petitioner before the High Court Division is not a good point for granting leave. Narayan Chandra Das and others vs Abdur Jabbar Dewan and others 52 DLR (AD) 35. ....View Full Judgment

Article 103

Constitutional obligation of the Supreme Court (Appellate Division) is to do complete justice in the cause. It has become imperative upon the Court to give due consideration to the Annexures to clarify the factual position. Bangladesh & others vs Dhaka Lodge Welfare Society 40 DLR (AD) 86. ....View Full Judgment

Article 103

Appeal– Question of fact– A question of fact or mixed question of fact and Jaw ought to be raised in die High Court Division for a proceeding under Article 102 of the Constitution. An appellant should not ordinarily be allowed to convert the Appellate Division into a court of first instance. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. ....View Full Judgment

Article 103

Under the new dispensation that Article 103 of the Constitution shall apply in relation to Administrative Appellate Tribunal the petitioners have only the right to seek leave for appeal. The Court's power under clause (3) of Article 103 is very wide–question of retrospec­tivity or prospectivity of section 6A of the Act of 1981 has got no relevance. Bangladesh Bank and another vs Administrative Appellate Tribunal 44 DLR (AD) 239. ....View Full Judgment

Article 103

In view of the special nature of services rendered by its employees the organizational set–up of trade unions of the Biman or any other organisation containing similar professional groups should receive special consideration so as to meet their special situations. The authority may consider whether, consistent with constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. Meanwhile existing agreements between the unions and the Biman shall remain operative for the duration of the respective agreements. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. ....View Full Judgment

Article 103(1)

When a Single Company Judge of the High Court Division is exercising power under section 38 of the Companies Act an appeal from its decision has to be taken by way of leave to the Appellate Division under Article 103(1) of the Constitution. Moqbul Ahmed and another vs Ahmed Impex (Pvt) Ltd and others 48 DLR (AD) 82. ....View Full Judgment

Article 103(1)

Since the petitioner has avenues open for both hearing of the Rule and the injunction matter in the High Court Division itself no interference is called for. Bangladesh, represented by the Secretary, Ministry of Establishment vs Khondaker Tajuddin Ahmed and others 51 DLR (AD) 64. ....View Full Judgment

Article 103(2)(a)

Certificate for appeal­ – The High Court Division while granting certificate is to indicate application of judicial mind to the question whether a case is fit one for appeal to the Appellate Division. The grant of a certificate of fitness for appeal is a judicial function requiring care and cautiousness of a judicial mind. It is not a mere mechanical act. The High Court Division fell into an oft–repeated avoidable error in granting a certificate in this case. Qazi Kamal vs Rajdhani Unnayan Kartripakha 44 DLR (AD) 291. ....View Full Judgment

Articles 103(3)

A surprise argument that does not find place either in the impugned judgment or in the revision petition before the High Court Division is not entertainable. Abdul Kaiyum (Md) vs Krishnadhan Banik and others 49 DLR (AD) 140. ....View Full Judgment

Article 104

Complete Justice–
The High Court Division simply converted the conviction and modified the sentence from section 11(ka)/30 of the Ain 2000 to section 302/34 of the Penal Code. The statute has not entrusted the High Court Division to exercise such power of conversion of conviction. Because conversion of conviction from special law to a different law can only be done by the Appellate Division empowered under Article 104 of the Constitution to do ”complete justice“ in appropriate cases pending before it under Article 103 of the Constitution. .....The State =VS= Nurul Amin Baitha, (Civil), 2018 (2) [5 LM (AD) 311] ....View Full Judgment

Article 104

In exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. The Court is not powerless to undo any injustice caused to a party–
The Constitution is a social document, and Article 104 is not meant for mere adorning the Constitution. The Constituent Assembly felt that a provision like the one should be kept in the Constitution so that in exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Apart from the powers given to this Division by the Constitution, a Court of law always retains some inherent powers. It is, therefore, said, the Court is not powerless to undo any injustice caused to a party. Shutting of judicial eyes even after detection of palpable injustice is in one sense denial of justice. If the Judges do not rise to the occasion to which they are oath bound to do justice, they would commit the similar illegality as the one committed by a litigant. Court’s practical approach would be towards doing justice without bothering too much about any one’s perception. We should never compromise to do justice. ... (Surendra Kumar Sinha, J) (Minority view). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Article 104

The exercise of the power of doing 'complete justice–
The exercise of the power of doing 'complete justice′ under article 104 is circumscribed by two conditions, (i)that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and (ii) that the order which Supreme Court passes must be necessary for doing “complete justice” in the cause or matter pending before it. Obviously the matter pending before us in this appeal is the acquittal of two accusedrespondents Dafader Marfoth Ali Shah and L.D. (Dafader) Abul Hashem Mridha of the charges under sections 302/34 and 302/109 of the Penal Code. Leave to file this appeal was granted to consider only whether the acquittal of the present two accusedrespondents from the charges under sections 302/34 and 302/109 of the Penal Code was correct and justified. So, obviously, the question whether the acquittal of all the accused persons from the charge of criminal conspiracy-is not at all a matter pending before us. It has already been pointed out above that the present State-appellant or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy-as ordered by a court of law. In the name of doing 'complete justice′ this right of the accused persons now cannot be ignored.... (Nazmun Ara Sultana, J) (Majority view). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Article 104

Considering the above stated facts and circumstances and the legal position we do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power of this Division under article 104 of the Constitution.... (Nazmun Ara Sultana, J) (Majority view) .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Article 104

Review– Administrative Tribunal case was not maintainable–
Judicial service is not a service in the sense of an employment as is commonly understood. Members of the judicial service, exercising judicial functions, are distinct from the members of other services. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their judicial functions and their over all reputations.
The Administrative Tribunal case was not maintainable as being hopelessly time barred the question as to whether the charges brought against the respondent have been proved or not does not deserve any consideration. But it is to be narrated clearly that cancerous cells of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery for keeping the stream of justice delivery system unpolluted.
Facts and circumstances, we are of the view that the Administrative Tribunal cannot pass an ex hypothesi decision and, as such, interference over the matter is called for. Accordingly, the order dated 01.09.2016 passed by this Division is reviewed and set aside. The decisions of the Administrative Tribunal and the Administrative Appellate Tribunal are set aside. …Ministry of Law, Justice and Parliamentary, Bangladesh =VS= S.M. Abdur Rauf, (Civil), 2019 (2) [7 LM (AD) 240] ....View Full Judgment

Article 104

Reduction of sentence—The respondent suffered much during these long years and any direction to suffer further imprisonment will only add to his misery of which he has had enough. The order of the High Court Division acquitting him though set aside and that of the Conviction by the Special Judge under section 409 Penal Code is restored, the sentence of his imprisonment is therefore reduced to the period already undergone by him. State Vs. Abdul Muttaleb Khan 45 DLR (AD) 131. ....View Full Judgment

Article 104

For doing complete Justice– The power of this Court under article 104 of the Constitution is an extensive one though it is not used often or randomly. It is generally used for doing complete justice in any cause or matter pending before it in rare occasions in exceptional or extra-ordinary cases for avoiding miscarriage of justice. To meet unwarranted and unpredicted exceptional situation this power is vested in this Division for doing complete justice. Article 104 widens our hands so that this Division is not powerless in exceptional matters. The matters (appeals/CPLA) in our hands are matters requiring exercise of this power, to save a valuable property of the Government from the clutches of greedy land/property grabbers, that too with the active collaboration and help from the Government Officials. Therefore, we have no other option than to exercise our power under article 104 of the Constitution. In the instant matters, it is absolutely necessary to do so.
Accordingly,—
(1) Civil Appeal No.30 of 2017 and Civil Appeal No.31 of 2017 are dismissed.
(2) The impugned judgment and decree dated 24-8-2015 of the High Court Division in Transfer Appeal No.08 of 2014 allowing the appeal, decreeing TS No.224 of 1997 and directing Waziuddin to handover vacant possession of the suit property in favour of Khadiza Islam, appellant of TA No.08 of 2014 within 60 days from the receipt of the judgment by setting aside the judgment and decree dated 18-8-2009 of the 1st Court of Sub-ordinate Judge, Dhaka in TS No.224 of 1997 is set-aside and TS No.224 of 1997 is dismissed.
(3) The judgment and decree passed by the High Court Division in First Appeal No.23 of 1984 allowing the appeal and decreeing TS No.541 of 1982 of the Court of Sub-ordinate Judge, Dhaka by setting aside the judgment and decree of dismissal of TS No.541 of 1982 is hereby declared to be fraudulent, unlawful, and thus, set aside.
(4) The execution proceeding arising out of the said decree is also declared illegal. The registered deed of transfer of the suit property being Deed No.4722 dated 30-11-1992 in favour of Md Waziuddin through Court is hereby cancelled.
(5) Khadiza Islam would not be entitled to get Khas possession from Md Waziuddin and she would not be entitled to retain possession in the suit property, if there be any, by whatever means.
(6) Government Khas Mohal Authority shall takeover physical possession of the suit property presently measuring more or less 12 khatas of land with structures thereon of Holding No.10, Purana Paltan, Dhaka, Plot No.1184, Khatian No.217, present Mouza-Ramna, Old Dag Nos.26, 27 and 28 vide statement of witnesses and plaint of Title Suit No.224 of 1997 (Khadiza Islam vs Waziuddin), within 60 days from the date of receiving copy of this judgment from Md Wazi-uddin/ Khadiza Islam-Nirman Cons-truction/any person/persons, in posses-sion of the suit property in its present condition and retain its possession in accordance with law.
(7) Civil Appeal No.32 of 2017 and Civil Petition for Leave to Appeal No.4232 of 2018 are disposed of in the light of the observations made in the body of the judgment and the above decision/ directions. …Noor Mohammad Khan =VS= Raisa Aziz Begum, (Civil), 2020 (1) [8 LM (AD) 248] ....View Full Judgment

Article 104

All the semi government organizations/ autonomous bodies/corporations/ nationalized banks and financial institutions fixation and payment of the retirement benefits/gratuity– The provisions relating to retirement benefits of the officers and employees of the semi government, autonomous bodies, corporations, banks and other financial institutions are regulated by their specific laws, they are bound by the provisions of the respective laws and they are not entitled to get any benefit, which the law does not permit.
All the semi government organizations/ autonomous bodies/corporations/ nationalized banks and financial institutions should follow the respective laws for the purpose of fixation and payment of the retirement benefits/gratuity etc. of their officers and employees. …Ministry of Agriculture, BD =VS= Kh. Mosaddeq Hossain, (Civil), 2020 (1) [8 LM (AD) 284] ....View Full Judgment

Article 104

We are of the view that this would be an appropriate case where we should exercise our authority under article 104 of the Constitution for doing complete justice in the matter before us. The evidence and materials on record do not disclose the real reason behind the gift by the wife to her husband. The fact remains that the property was purchased jointly and was in their joint possession and enjoyment in spite of the gift. The third party has purchased the property for valuable consideration. There was no evidence that the defendant mutated the record of rights to his name after the acquisition of legal title to the property by virtue of the gift. The third party purchaser would not have been aware of the transfer of title. The defendant-appellant shall pay a sum of Tk.2,50,000/- to plaintiff-respondent No.1 within 3 months from the date of receipt of the judgement, failing which the appeal shall stand dismissed. .....Abul Hashem Sarker(Md.) =VS= Arjuman Akhter(Mst.), (Civil), 2018 (2) [5 LM (AD) 31] ....View Full Judgment

Article 104, 111

Period of limitation in filing petitions/applications/ suits/appeals/revisions/all other proceedings extended– The existing laws do not give any Court or Tribunal the authority to extend the period of limitation provided under any special law. However, we are also aware of the singularly unprecedented, unwonted and totally unavoidable circumstances which has compelled people all over the world to be confined to their homes.
In exercise of our power and the authority vested in us by the Constitution under article 104, it is thus ordered that any period of limitation in filing petitions/applications/ suits/appeals/revisions/all other proceedings, civil, criminal or administrative, under general or special laws, which expired on or after 26 March, 2020 stands extended till 31st August, 2020.
This order has been passed to do complete justice and is a binding order within the meaning of article 111 of the Constitution on all Courts/Tribunals. ...Fazlul Haque Sarder =VS= Grameen Phone Limited, (Civil), 2020 [9 LM (AD) 37] ....View Full Judgment

Article 104

Legitimate expectation–
The decision of this Division in Civil Appeal Nos.60-65 of 1994 that equitable dispensation was meted out in exercise of article 104 of the Constitution on the consideration that the appellant-government would gain experienced hands and the writ-petitioners would gain fulfilment of a legitimate expectation. .....Ministry of Establishment =VS= Md. Abul Hashem, (Civil), 2018 (2) [5 LM (AD) 297] ....View Full Judgment

Article 104

Peititioner sought to secure transfer of civil cases from courts situated within territorial jurisdiction of one Permanent Bench to that of another Permanent Bench. Held: As transfer of a case does not come within the ambit of Article I 04 of the Constitution, Supreme Court, Appellate Division cannot pass any order for doing completejustice to a case including the order for transfer under Article I 04 of the Constitution. Sk AKM Abdul Mannan vs Raj Textile Mill Ltd 42 DLR (AD) 11. ....View Full Judgment

Article 104

The words "doing complete justice" as occurs in Article 104 are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed. Mahbubur Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145. ....View Full Judgment

Article 104

This provision should not be resorted to in the case of laches on the part of a financial institution like a Bank, which should better take action against its own wrongdoers, if any.
There is, of course, some substance in the argument that the order of the trial Court striking off the names of the defendants–guarantors is improper, but it was passed in presence of the Bank's representative; no action was taken in time to seek remedy from the superior Court within the period of about ten months. It appears that the impugned order of trial Court was obtained and the application for correction of the order was delayed, at the connivance of the Bank's officials concerned. The High Court Division, therefore, did not do any wrong in rejecting the application for revision on the ground of limitation. Rupali Bank vs Tobacco Industries Ltd. 46 DLR (AD) 190. ....View Full Judgment

Article 104

Complete justice–Relief sought should ordinarily be considered within the framework of the suit. In the name of complete justice Appellate Division may not grant relief which the court of first instance will not be able under the law to grant. Article 104 has invested the last court of the country with wide power, so it may do complete justice in an appropriate case. If a substantial justice under law and on undisputed facts can be made so that the parties may not be pushed to further litigation, then a recourse to this provision may be justified. AFM Naziruddin vs Mrs. Hameeda Banu 45 DLR (AD) 39. ....View Full Judgment

Article 104

The High Court Division wrongly used the words "for doing complete justice" between the parties. It is only the Appellate Division which has got the power under Article 104 of the Constitution to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any matter pending before it. Shahana Hossain vs AKM Asaduzzaman 47 DLR (AD) 155. ....View Full Judgment

Article 104

No remedy is available to the appellant though a gross injustice has been done to him for no fault or ]aches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view it is a most appropriate case for the Court to exercise our jurisdiction under Article 104. Raziul Hassan vs Badiuzzaman Khan and others 48 DLR (AD) 71. ....View Full Judgment

Article 104

It is only the Appellate Division which has been bestowed with the jurisdiction of "doing complete justice in any cause or matter pending before it". This jurisdiction is not available to either the High Court Division or the Subordinate Courts. National Board of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171. ....View Full Judgment

Article–105

In a review matter cannot re-assess the evidence afresh and re-hearing–
In the judgment the charges and evidence of the witnesses both oral and documentary have been meticulously considered and after evaluation of the same this court modified the conviction and commuted the sentence by majority as above. In a review matter this court cannot re-assess the evidence afresh and re-hear the matter. This court dispose of the points so far as it is relevant for the disposal of the matter. This court has discussed the evidence thoroughly in support of the Plea and disbelieved the defence plea. All points agitated by the learned counsel on behalf of the petitioner are not relevant for disposal of the review petition. The points raised by the learned counsel are reiteration of the points agitated at the time of hearing of the appeal. There is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. The learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly they are dismissed. .....Bangladesh =VS= Allama Delwar Hossain Sayedee, (Criminal), 2017 (2)– [3 LM (AD) 538] ....View Full Judgment

Article 105

The Constitution of Bangladesh, 1972
Article 105 read with
The Penal Code, 1860
Sections 300, 302/109
Review–
The learned counsel fails to point out any error of law in the judgment of this court. We find no merit in these petitions. .....Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 584] ....View Full Judgment

Article 105

C. P. No.3472 of 2015 is set aside. The High Court Division is directed to dispose of the Rule–
This civil review petition is disposed of and the order dated 02.06.2016 passed in Civil Petition for Leave to Appeal No.3472 of 2015 is set aside. The orders dated 01.07.2014 and 27.02.2012 of the High Court Division are also set aside. The order dated 10.09.2007 discharging the Rule is vacated and the Rule is restored to its original file and number. The High Court Division is directed to dispose of the Rule as expeditiously as possible. .....Deputy Commissioner, Sylhet =VS= Md. Suruj Ali, (Civil), 2018 (2) [5 LM (AD) 300] ....View Full Judgment

Article 105

Review–
This Division consistently held that review by no means is a re-hearing of the appeal. We are, therefore, of the view that in all these civil review petitions the grounds urged by the petitioners are nothing but the grounds taken into consideration and repelled in the leave Petitions. It is therefore not permissible to embark upon a reiteration of the same contentions as were advanced at the time of hearing of the leave petitions. We are of the opinion that there is no error apparent on the face of the record to interfere in the impugned judgment and order passed by this Division in the above leave petitions. There is no legal ground in these civil review petitions for review of the impugned judgment and order passed by this Division in the civil petitions for leave to appeal. These civil review petitions are dismissed. .....Abdul Mazid Sarker(Md.) =VS= Bangladesh, (Civil), 2018 (2) [5 LM (AD) 367] ....View Full Judgment

Article 105

Review— Modification of the ordering portion of the judgment–
To secure the ends of justice, the ordering portion of judgment of this Court is modified adding the words "as described in the schedule to the plaint quoted hereinbefore" after the words "in the suit plot" and if there is any excess land in the suit plot, ie more than 612 square yards and 6 sft as claimed by the plaintiffs, they shall have no claim therein. It is the RAJUK to decide whether defendant No. 1-petitioner would get the excess land in the suit plot, if there be any, if so advised, the petitioner may approach the RAJUK to ventilate his grievance. But we make it very clear that RAJUK shall not in any way encroach upon the land of the plaintiffs as described in the schedule to the plaint. Modification of the ordering portion of the judgment sought to be reviewed. .....Anwarul Huq =VS= Iqbal Ahmed, (Civil), 2017 (2)– [3 LM (AD) 13] ....View Full Judgment

Article 105

The facts and circumstances and new papers produced in this Court which were not produced and considered by this Court earlier and that from the new materials produced in this Court it appears that in those papers the University authority and the writ petitioner approved the decision for confirmation of services of the appellants, we are of the view that the appellants are entitled to get relief because error has crept in earlier decision. .....Dr. Khairun Nahar =VS= Professor Dr. Iqbal Arshalan, (Civil), 2017 (2)– [3 LM (AD) 215] ....View Full Judgment

Article 105

Review–
No new and relevant materials have been produced to substantiate the claim for review. The review petition is dismissed. .....Lancaster Export Service Ltd =VS= Forseti Group Inc. (Civil), 2017 (2)– [3 LM (AD) 240] ....View Full Judgment

Article 105

Review–
The defendant-petitioner got ample opportunity to agitate this ground before the courts below and also before this Division at the time of hearing of civil petition for leave to appeal, but he did not do so. Considering the above facts and circumstances we do not find any sufficient ground to review the judgment and order in question and hence this civil petition for review be dismissed. .....Mominul Islam(Md.) =VS= Md. Aminul Islam, (Civil), 2017 (2)– [3 LM (AD) 412] ....View Full Judgment

Article 105

Review–
The Appellate Division seriously erred in law, which error resulted in an error on the face of the record in that in view of the fact that when the project profile expressly provides a specific provision for absorption of the employees in the revenue budget and as per the said provision an employee is absorbed in revenue budget and has been serving under the revenue budget. The Appellate Division seriously erred in law, which error resulted in an error on the face of the record in that the Appellate Division failed to enter into any discussion on any of the review petitioners (Review Petition Nos.338, 339, 340, 341 and 342 of 2016). Accordingly, leave is granted in all the petitions. ...Sultana Zahid Parvin =VS= S.M. Fazlul Karim, (Civil), 2019 (1) [6 LM (AD) 67] ....View Full Judgment

Article 105

There could be no ground for review once the case was disposed of on fact and law as well.
Review of a judgment can be made where there is an error apparent on the face of the record or that the Court's attention was not drawn to any particular statutory provision of law for which an error has crept in the judgment. Idris Ali Bhuiyan vs Enamul Haque 43 DLR (AD) 12. ....View Full Judgment

Article 105

The Review Petition that has been filed and the grounds taken indicate that the petitioner now intends a rehearing of whole matter which is not permissible under Article 105 of the Constitution. Once the matter is disposed of on merit without any new material the same cannot be reconsidered. Hefazetur Rahman vs Kazi Anowar Hossain and others 53 DLR (AD) 89. ....View Full Judgment

Article 105

Merely reversing the order basing on the evidence on record would render the order in review without jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on ·the face of the record. Ershad Ali Sikder (Md) vs State 56 DLR (AD) 87. ....View Full Judgment

Article 105

Appellate Division of the Supreme Court of Bangladesh has power to review its own judgment acting on its own. Mabubur Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145. ....View Full Judgment

Article 106

The President's satisfaction that a question of law has arisen, or is likely to arise, and that it is of public importance and that it is expedient to obtain the opinion of the Supreme Court justifies a Reference at all times under the Article. Though it is not obligatory upon the Court to give an opinion, it will be unwilling to decline a reference except for good reasons. Special Reference No I of 1995, 47 DLR (AD 111. ....View Full Judgment

Article 107(1)

So the rules must be framed for deciding what class of cases will be heard and such rules must be framed by the High Court Division itself subject to Article 107 (I), the Chief Justice then initiates the proposal for the "approval" of the Chief Executive namely, the President. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Articles 107(1)(2)(3) and 113

Constitutional responsibility of the Chief Justice to determine which judges are to constitute a Bench or Division of the Supreme Court– Rule making power has been given to the Supreme Court and the Supreme Court may delegate any of its functions to a Division of that Court or to one or more Judges. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 107(3)

A litigant or Judge is not entitled to have any say in the selection of any Judge or Judges who are to constitute a particular Bench. It is the Chief Justice of Bangladesh who exercises the power under Article 107(3) of the Constitution and is to decide such constitution of Benches. (Para-6); .....The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)– [2 LM (AD) 576] ....View Full Judgment

Article-108

Contempt of court may be classified into three categories, namely (1) disobedience of court orders and breach of undertakings given to the court, (2) scandalisation of the court and (3) interference with the administration of justice. The first category is termed as civil contempt, whereas the other two categories are contempt of a criminal nature. In the facts and circumstances of the instant case, we are not concerned with the first category since there is no allegation of any breach or non-compliance by the contemnors-respondents of any order issued by this Court. The question to be considered is whether the respondents have made comments/remarks which scandalise the Court or which interfere with the administration of justice. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment

Article 108

Punishment–
It is generally accepted that for the sake of maintaining proper order and to ensure compliance of the directions given in judgements, the courts have an inherent power to punish any person or authority for contempt. The Supreme Court has been given specific power by the Constitution to punish for its contempt. Article 108 of the Constitution.
The contemnors have tendered unconditional apology at the earliest opportunity, we are taking a lenient view in awarding the sentence. The contemnors are sentenced to pay fine of Tk.50,000/- (fifty thousand only) each within seven days from date and donate the same to the Islamia Eye Hospital (Dhaka City), Farmgate, Dhaka and the National Liver Foundation of Bangladesh, 150 Green Road, Panthapath, Dhaka-1215, in default to suffer simple imprisonment for seven days. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment

Article 109

In a case where a statute bars entertainment of a revision the exercise of supervisory power under Article 109 of the Constitution is not available. Hosne Ara Begum and another vs Islami Bank Bangladesh Limited 53 DLR (AD) 9. ....View Full Judgment

Article 109

The Courts and tribunals will be under the superintendence and control of the High Court Division, being subordinate to it but the control and discipline of persons employed in the judicial service and magistrates exercising judicial functions is vested in the President. This distinction stares in the face of our Constitution. There is a diarchy in our constitutional scheme. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Articles 109

The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by the High Court Division of the Supreme Court shall be binding on all courts subordinate to it all District Courts are subordinate to the High Court Division. It is not subordinate to the Ministry of Law and Justice Department. .....Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others, (Civil), 2016-[1 LM (AD) 267] ....View Full Judgment

Article 109 and 116

This amendment is in direct conflict with article 109, which provides that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the Executive controls the posting, promotion and discipline, disciplinary action is not clear to me. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Articles 109, 116 and 116A

The superintendence and control of the officers of the lower Judiciary remains with the Supreme Court–
The superintendence and control over all courts and tribunals subordinate to it is upon the High Court Division as per article 109 of the constitution. The Supreme Court has its own system and machinery to evaluate the conduct, discipline, performance of all judicial officers working in the subordinate courts and tribunals. Firstly, through the judgments pronounced by them which ultimately come to the High Court Division for judicial review. Secondly, from the annual confidential reports being prepared in accordance with Rules. Finally, through inspections made from time to time by the Judges of the High Court Division as per direction of the Chief Justice. This system is being followed right from 1861 when the High Courts were established in this sub-continent under the High Courts Act, 1861. Whenever, any recommendation, proposal or opinion regarding the terms and conditions of service of any judicial officer is made by the Supreme Court, this recommendation is being honoured by the Executive government without further inquiry because the Executive does not have such machinery or system to evaluate the conduct and performance of the judicial officers. If the superintendence and control of the subordinate judiciary is left in the hands of Executive, the independence of judiciary will be in question. From the time of the separation of the judiciary from the Executive, it is the Supreme Court under whose supervision the subordinate judicial officers are working and it supervises its administration and controls the conduct of judicial officers. There cannot be any doubt about it. The lower judiciary cannot be independent if its superintendence and control over the judicial officers remains with the Executive. The Executive is also conscious about that, and all the time it represents that it does not interfere with the administration of justice. If articles 116, 116A are read along with article 109, it will be manifest that it is the Supreme Court which has the exclusive power to supervise and control the terms and conditions of service of the subordinate judicial officers. Article 116 does not control article 109, rather if these two provisions are placed in juxtaposition, it will be clear that the superintendence and control of the officers of the lower judiciary remains with the Supreme Court. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 111

Binding effect of the Judgment of the Supreme Court will be nullified because of the conflicting decisions of two or more Permanent Benches. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 111

To succeed a postulant must show that the Appellate Division resorted to a fundamental error of law, which remains apparent on the face of the judgment. One of the most striking examples would be where the Appellate Division acted per incuriam or overlooked one or more statutory provisions. As the doctrine of stare decisis does not bind the Appellate Division under Article 111 of the Constitution, a review petitioner can not invoke that doctrine. There are authorities for the proposition that fresh evidence, which has bearing on the event under consideration, but despite best efforts, could not be obtained during the original or appellate hearing, can have effect on review hearing. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment

Articles 111

Article 111 provides that the ‘law’ declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment

Article 112

While the High Court Division's order is in force, no question of waiting for the Ministry's approval to comply with the High Court Division's order, as Article 112 of the Constitution, obligates all authorities, executive, judicial, alike to follow orders passed by the Supreme Court, without exception or qualification.
Md.Alauddin Miah and another-Vs.-Md. Shahidul Islam Khan and others. 4 ALR (AD) 2014 (2) 156 ....View Full Judgment

Article 113

Article-113 read with Administrative Tribunals Act, 1980
Relating to transfer of a government Servant
It may be argues that the Administrative Tribunal had no authority to order of stay or injunction hut when a person is transferred from one place to another he is to follow or abide be that order. If by the order of transfer any terms and conditions of service is violated his remedy lies before the Administrative Tribunal. But it cannot be a ground to issue and order of stay by the High Court Division only on the ground that the Administrative Tribunal had no authority to pass any such order. Bangladesh & Ors. Vs. S. M. Fariduddin & Ors. 11 BLT (AD)-51 ....View Full Judgment

Article 114

The constitutional implication of this Article is that the subordinate judiciary, unlike the Supreme Court of Bangladesh, is not a creature of the Constitution but of law. Secretary.. Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Articles 115 & 116A

While making recruitment rules under Article 115 it has to be borne in mind that Article 116A will be meaningless without judicial autonomy. Judicial autonomy requires that judicial appointments shall be made on merit by a separate judicial service commission which may be established either by a statute or by the President while framing rules under Article 115. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Articles 115 & 136

The judicial service has a permanent entity as a separate service altogether and it must always remain so in order that Chapter 11 of Part VI is not rendered nugatory. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Section 115

Framing Rules by the President
Article 115 provides that the appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in that behalf—Constitution of Bangladesh, 1972, Article—105. Secretary, Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD (AD) 126. ....View Full Judgment

Article 116

When Election the Commission accepted the formation of the electoral committee which was formed with the approval of the Supreme Court the petitioner has no cause to be apprehensive about the formation of the committee. Bangabir Kader Siddiqui, BU vs Government of Bangladesh and ors 54 DLR (AD) 64. ....View Full Judgment

Articles 116A & 136

While the function of the civil administrative executive services is to assist the political executive in formulation of policy and in execution of the policy decisions of the Government of the day, the function of the judicial service is neither of them. It is an independent arm of the Republic which sits on judgment over parliamentary, executive and quasi–judicial actions, decisions and orders. To equal and to put on the same plane the judicial service with the civil administrative executive services is to treat two unequals as equals. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 116A

Natural justice violation– The judicial functions cannot be evaluated by the Administrative Authority–
It is well settled principle of natural justice that no one should be condemned unheard. In addition, strictures or scathing language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction against the Judges of the lower Courts. Errors of the judgments should be corrected by reasons of law. Comments were made without hearing the learned Judge and, as such, the principles of natural justice were violated. .....Sharif Hossain Hyder =VS= Sonali Bank & others, (Civil), 2016-[1 LM (AD) 102] ....View Full Judgment

Article 116A

Members of the judicial service are not holders of the constitutional posts but they being public servants are in the service of the Republic–
Ends of justice would be best served if the District Judges and equivalent judicial officers are placed in the same table of the Warrant of Precedence along with the Secretaries and equivalent public servants. There is no denying that members of the judicial service (i.e., the subordinate judiciary) are not holders of the constitutional posts but they being public servants are in the service of the Republic and the nature of their service is totally different from the civil administrative executives. District Judges and holders of the equivalent judicial posts are the highest posts in the subordinate judiciary. In view of the provisions of the Article 116A of the Constitution all persons employed in the judicial service and all magistrates exercising judicial functions shall be independent in the exercise of their judicial functions, so it is immaterial to say that members of judicial service or the subordinate judiciary are above the senior administrative and defence executives. .....Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40] ....View Full Judgment

Article 117

Same will be case in matter of superintendence of the subordinate courts because of the absence of any central organ to discharge this duty. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 117

Departmental proceeding against government servant– Administrative Tribunal's jurisdiction to give relief–If the petitioner, a Government servant, can establish a case of 'double jeopardy' on facts he can invoke the law under which he is proceeded against which cannot be opposed to Fundamental Rights and the Tribunal is competent to enforce the statute. Md Serajul Islam vs The Director General of Food 42 DLR (AD) 199. ....View Full Judgment

Article 117

The Administrative Tribunals are not like the High Court Division or the subordinate Court over which the High Court Division exercises both judicial review and superintendence. They are set apart, as sui generis, in a separate chapter. The Parliament can make more tribunals for matters relating to or arising out of sub–clause (a) of Article 117(1 ). Mujibur Rahman vs Bangladesh 44 DLR (AD) 111. ....View Full Judgment

Article 117

The Constitution made provisions in Article 117 for conferring state's judicial powers on some tribunals that may in future cumulate some of the attributions which are divided between the formal court system and the growing practice of adjudication of disputes by tribunals. Mujibur Rahman vs Government of Bangladesh and others 44 DLR (AD) 111. ....View Full Judgment

Article 117

In deciding whether the order in question was one under MLO No. 9, the Tribunal held that the order became effective from the date it was passed, the High Court Division held that it did not become effective because of non–communication. For this exercise the power of judicial review was not necessary. The Tribunal was competent to decide the issue. Bangladesh and others vs Mahbubuddin Ahmed 50 DLR (AD) 154. ....View Full Judgment

Article 117(1)

Because of the non–obstante clause in Article 117(1 ), there can be no grievance on the ground that there has been an amalgamation of judicial and non–judicial functions or conferral of judicial function on a non–judicial body in violation of the provisions as to the judiciary in the Constitution. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111. ....View Full Judgment

Article 117(2)

Further ground allowed by the Court to be urged by the appellant. Finding of the Board of Inquiry– Only the Chief Engineer was competent to draw proceeding but defendant No. 2(appellant) continued with his litigation in spite of this finding–Had the appellate Court's order been accepted by defendant No. 2, the question of giving salary during the litigation period would not have arisen.
Courts observation on conduct of the business of the Government officer– The present case is a sad instance of thoughtless application of disciplinary rules–Corrective measures are to be taken coolly even in case of exasperating delinquency in according with law–Appellate Court's order granting arrears salary allowed. Executive Engineer, Public Health vs Mohammad Ali 41 DLR (AD) 64. ....View Full Judgment

Article 117(2)

Jurisdiction of administra­tive Tribunal– It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article I 02(1) is not frittered away or misused. Mujibur Rahman vs Government of Bangladesh and others 44 DLR (AD) 111. ....View Full Judgment

Article 117

The Constitution of Bangladesh, 1972
Article 117 read with
The Limitation Act 1908
Section 14(4)
In Civil Appeal No. 159 of 2010, Government of Bangladesh vs Sontosh Kumar Saha and others that the Administrative Tribunal set up to exercise the powers under Article 117 of the Constitution shall have exclusive jurisdiction to decide the terms and conditions of service of the public servants and that no judicial review of the actions of the authority will be available to them, except in a case where the vires of law is challenged in which cases only. Civil court can also pass or make interim orders, subject to fulfillment of certain terms and conditions.
Writ petitioners can seek reliefs before the Administrative Tribunal, we make it clear that if the writ petitioners desire to redress their grievances before the Administrative Tribunal since they had been prosecuting their grievances in the Supreme Court of Bangladesh for a long time, the Administrative Tribunal shall entertain their petitions, if any, are filed on condoning the delay under section 14 of the Limitation Act. We also waive the statutory bar applicable to an applicant for filing a departmental appeal before the appellate authority, since they have already moved the High Court Division, the said period of limitation has already expired. We want to make it clear that the proviso to sub section (4) shall not stand in the way in making the applications and the Administrative Tribunal shall admit the petitions as if the applicants have preferred appeals under proviso to sub section (4). We further direct the Administrative Tribunal to dispose of the petitions, if any is filed, on priority basis not later than 6 (six) months from the date of receipt of the order. ...Ministry of Education, Dhaka =VS= GMM Mizanur Rahman Bhuiyan, (Civil), 2019 (1) [6 LM (AD) 32] ....View Full Judgment

Article 117(2)

There is common question of law involve for the consideration of the following points:
(i) whether a disciplinary action taken against an officer of the Judicial Service of the Republic can seek judicial review against such action.
(ii) whether the General Administration Committee (G. A. Committee) can ignore a recommendation of the Executive Government to exonerate an officer of the lower judiciary and direct the concerned Ministry to take penal action.
(iii) whether an employee in the service of the Republic can claim higher status and grade without challenging his service Rules in comparison with his counterpart serving at different departments under the similar nomenclature i.e. post.
(iv) whether the Administrative Tribunal established under article 117(2) of the constitution can strike down an administrative order for infringement of fundamental rights guaranteed by the constitution.
(v) whether judicial review in the High Court Division is available in respect of the terms and conditions of service of an employee in the service of the Republic.
(iv) whether the Administrative Tribunal is competent to examine the constitutional validity of a statutory provision.
(vii) whether the Administrative Tribunal can pass interim order so as not to frustrating the proceedings pending before it. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Article 118

For exercising and performing any powers or functions under this Order the acting Chief Election Commissioner must get authorization from the Commission itself, otherwise his action under the Order will be coram nonjudice and without jurisdiction. Jatiya Party vs Election Commission for Bangladesh and others 53 DLR (AD) 38 ....View Full Judgment

Articles 118 and 119(2)

Section 2 sub­section (7) defines "Election Commission" which means the Election Commission for Bangladesh. The Election Commission of Bangladesh is constituted under Article 118 of the Constitution. Article 119(2) says that the Election Commission shall perform such functions in addition to those specified in clause (I) as may be prescribed by the Constitution or by any other law. AFM Shah Alam vs Mujibul Haq 41 DLR (AD) 68. ....View Full Judgment

Article 119

Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair election. Altaf Hussain vs Abul Kashem 45 DLR (AD) 53. ....View Full Judgment

Articles 121 & 122(1)

Electoral roll and basis of franchise–Members for seats reserved exclusively for women are to be elected by members of the Parliament according to law. President's Order 17 of 1973 provides for that law. There is no conflict between the amendment done by Constitution (Tenth Amendment) Act providing for election to the reserved seats and Articles 121 & 122(1) of the Constitution. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD)109. ....View Full Judgment

Article 122(2)

Provides for securing the rights of a citizen by enlistment in the Electoral Roll-Electoral Rolls Ordinance, 1982— Section 7~ Provides for maintaining continuity of electoral rolls— Electoral Rolls Rules, 1982— Rule 20- up-dating the voter lists by correction and modification-Preparation and up-dating of the voters list before the Parliamentary election is the responsibility of the Election Commission. Decision of the Election Commission means the decision taken by all the commissioners or by the majority of them. The Commission can not discard or ignore altogether the existing voters list but is required to up­date the same by correction and modification on the basis of the existing lists as contemplated under section 7 of the Electoral Rolls Ordinance 1982 and rule 20 of the Electoral Rolls Rules 1982. Election Commission represented by the Chief Election Commissioner Vs. Alhaj Advocate Molmimnad Rahmnt All, MP and others 11 MLR (2006) (AD) 345. ....View Full Judgment

Article 133

It is not obligatory for the Parliament to make laws. No Court can similarly direct the President to make rules, because the rule–making power of the President is identical with that of the Parliament. Bangladesh vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. ....View Full Judgment

Articles 133 & 136

Article 115, 133 or 136 does not give either the Parliament or the President the authority to curtail or diminish the independence of ·the subordinate judiciary by recourse to subordinate legislation or rules. What cannot be done directly, cannot be done indirectly. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 133

Rule making power has been given upon the President–
If the Rules contravene any of the provisions of the constitution, the Rules shall be void. Article 133 clearly empowers the Parliament to promulgate law regarding conditions of service but the proviso is a transitional provisions empowering the President to make Rules which has the force of law relating to the matters covered in article 133 until appropriate legislature on the subject is made. The President has power to promulgate Rules and until the powers conferred under article 133 are exercised, the President can amend the Rules. .....Mahfuza Akhter Shimul =VS= Delwar Hossain, (Civil), 2018 (2) [5 LM (AD) 120] ....View Full Judgment

Section 133

Separate Judicial Service Commission
Setting up of the separate Judicial Service Commission is not contrary to the provision of Article 133 of the Constitution which provides that subject to the provisions of the Constitution the parliament may by law regulate the appointment and conditions of service of persons in the service of the Republic. Article 133 cannot be invoked for the judicial officers—Judicial officials are not persons in the service of the Republic for the purpose of Article 133 and hence rules regarding their appointment and conditions of service cannot be framed under Article 133. Secretary, Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, 21 BLD(AD) 126. ....View Full Judgment

Article 134

As malafide vitiates every exercise of power, a malafide exercise of pleasure by the President under Article 134 of the Constitution can be brought within the purview of judicial review, if the other provisions of the Constitution are not a bar. Rear Admiral AA Mustafa vs Bangladesh, represented by the Secretary Ministry of Defence, Dhaka 51 DLR (AD) 146 ....View Full Judgment

Article 134

Persons appointed –to the Secretariat of Parliament and the Staff of the Supreme Court, although governed by separate terms and conditions of service, are entitled to the protection of Article 134, because they are public officers holding or acting in an office of emolument in the service of the Republic. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 134

The definition of "the service of the Republic" uses the word "Government" in a generic sense. On that ground the members of the judicial service cannot be excluded from the ambit of "the service of the Republic". Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 135

Managing Committee adopted the Government Civil Service Rules for its convenience. Such adoption does not make the Rules as having statutory force. Bangladesh vs Md Alauddin 38 DLR (AD) 81. ....View Full Judgment

Article 135

Government Civil Service Rules adopted by a Co–operative Bank for guidance of the Bank–such rules by their adoption by the Co–operative Bank do not extend the protection given to a government servant. Bangladesh vs Md Alauddin 38 DLR (AD) 81. ....View Full Judgment

Article 135

Benefits enjoyed by Government servants made available to the Bank's employees– They do not thereby become Government servants. Bangladesh vs Md Alauddin 38 DLR (AD) 81. ....View Full Judgment

Article 135

An order for compulsory retirement by way of penalty amounts to removal from service for which protection under Article 135 is available. Government of the People's Republic of Bangladesh vs Abdul Motaleb Dewan 45 DLR (AD) 108. ....View Full Judgment

Article 135

Provisions of this Article cannot be invoked by the employee's corporations as they stand outside the class of employees referred to therein as "persons in the service of the Republic"~ These employees are not governed by the law of master and servant either– They will be governed by the rules & regulations or agreement of their employment in the absence of which their termination shall be governed by the principle of natural justice.
The provision for termination of employees of a Statutory Corporation by simply giving him three months' notice or three months' pay is a harsh rule capable of being used indiscriminately and that such rule should be re–examined by the authorities concerned, particularly the Corporation and the Government so as to amend the Rules providing for giving at least gratuity to a terminated employee according to the length of his service. In the instant case, as we have pointed out, .regulation 12, like its parent law, being a protected legislation the provision for termination by notice is not void though it may be inconsistent with any fundamental right. Bangladesh Bank vs Mohammad Abdul Mannan 46 DLR (AD) 1. ....View Full Judgment

Article 135

A postal clerk asked to act as an Inspector on purely temporary basis was reverted to his substantive post after about five years' service–Whether this reversion amounts to reduction in rank– The uninterrupted service rendered by the. respondent–employee for about five years even if considered as "non–temporary or quasi–permanent" cannot be termed reduction in rank to attract constitutional protection. The relevant order indicates that it was never meant to be an order of promotion. In the facts of the case the respondent was not entitled to any show cause notice nor was there any violation of the principle of natural justice. His contention that he has acquired a vested right in the post of Inspector must fail. Bangladesh vs Md Fazlul Huq 43 DLR (AD) 144. ....View Full Judgment

Article 135

A person holding a civil post is entitled to a second show cause notice in the event of his dismissal, removal or reduction in rank. This is a constitutional protection available to such a person. DG, Prisons & others vs Md Nasim Uddin 53 DLR (AD) 30. ....View Full Judgment

Article 135

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 offices as they get emolument and render service to the Republic. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 135

Bangladesh Bank (Staff) Regulations– Bangladesh Bank Staff Regulations are protected legislation like its parent law, the Bangladesh Bank Order. The constitutionality of these Regulations stand beyond any question and cannot be declared void being inconsistent with the equality clause of the Constitution. Bangladesh Bank vs Mohammad Abdul Mannan 46 DLR (AD) 1. ....View Full Judgment

Article 136

Per Latifur Rahman J. : Article 136 of Part IX speaks of re–organization of service of the Republic by creation, amalgamation or unification of services and such law may vary or revoke any condition of service of a person employed in the service of the Republic. This concept of reorganisation of service is available to all other civil posts including executive service of Republic other than members of the judicial service and magistrates exercising judicial functions as they have been treated separately under Articles 115, 116 and H6A of the Constitution. Article 136 refers to all general services of civil posts. 'Judicial service' has been separately treated in the relevant constitutional provisions and as such conditions of service is to be separately framed under Article 133 and it cannot be tagged as Bangladesh Civil Service (Judicial) under paragraph 2(x) of Act XXXII of 1975. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 136 Para l0(2)(b) 4th Sch

The very concept of weighing two different classes of persons in the service of the Republic in the same scale and to fix for them corresponding grade and scale of pay is a twisting of the Constitutional scheme and is an anathema to the concept of judicial independence. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.
Article 142– Constitution is the rule of recognition. An amendment of the Constitution is not a grundnorm as it has to be according to the methods provided in the Constitution– Total abrogation of the Constitution is not comprehended by the Constitution. Anwar Hussain Chowdury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 140(2)

The words "the President shall consult a commission" is not mandatory. When a law or regulation is framed requiring consultation but no consultation is made, the Court may interfere in the public interest. Bangladesh vs Shofiuddin Ahmed and 2 others 50 DLR (AD) 27. ....View Full Judgment

Article 141B

The writ petition was directed /predominantly against the alleged cancellation of approved plan in violation of provision of Building Construction Act but passingly alleged violation of certain Articles contained in Chapter III of the Constitution have been mentioned but the same has nothing to do with the decision in the matter in accordance with law which is basically designed challenging the legality or otherwise of the impugned orders i.e. cancellation of the approved plan, rejection of their appeal and consequent demolition of the Building under the provision of the Building Construction Act/Rules. It may be passingly mentioned that when any violation of any fundamental right enumerated in Chapter III of the Constitution was alleged as the only ground under reference and no violation of legal right or law has been alleged whatsoever without reference to the provision of law protecting the right of a citizen, we are of the view that only then and then possibly resort may be taken to fundament right to protect any citizen of such rights enshrined and guaranteed in the Constitution. Otherwise, it is too much stressing a point to invoke the fundamental rights enshrined in the Constitution when the petition is basically centered round violation of any legal right by any authority/body in exercise of authority under any specific law or legal principles under any statute alleging violation of any law or rule. But any alleged violation of fundamental right enshrined in the Constitution in the instant case is too much stressing the point so far as to bring within the purview of the bar of hearing during the continuance of the Proclamation of Emergency suspending the enforcement of certain rights as mentioned in Chapter III of the Constitution as provided under Article 141 B of the Constitution of the Peoples Republic of Bangladesh. Chairman, RAJUK & Anr Vs. A. Rouf Chowdhury & Ors 16 BLT (AD)279 ....View Full Judgment

Article 141 C(D

Declaration of emergency by the President suspending the enforcement of fundamental rights is not subject of scrutiny by the court—
The Appellate Division held the High Court Division was wrong in disposing of the writ petitions seeking enforcement of fundamental rights during the continuance of the emergency when the fundamental rights were suspended. Declaration of emergency does not come within the scope of scrutiny by the court. The apex court held the Rule 8(l)(dd) of the Bangladesh Civil Service (Recruitment) Rules, 1981 not ultravires of the constitution nor discriminatory or class legislation. Ataur Rahman (Md.) and others Vs. B.M Mahibur Rahman and others 14 MLR (2009) (AD) 138. ....View Full Judgment

Article 142

A Constitution is not a mere Act which declares what law is to be– The power to amend the Constitution is within the Constitution itself– The term 'amendment' implies an addition or change within the lines of the original instruments as will effect an improvement or better carry out the purpose of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142

Interpretation of Constitution – Constitution and its amendment–Amendment shall have to pass some test before it becomes a part of the constitution. Manner of applying test– Strict compliance with mandatory procedural requirements– Practicing no deception or fraud upon statutes and not so repugnant to the existing provision of the Constitution that its co– existence therewith will render the Constitution unworkable – Doctrine of bar to change of basic structure, if accepted, what effect it will have on the basic structure of the constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142

Interpretation of Statute ­Amendment– meaning of the expression – of a statute may have various meanings depending upon its context–Whether an amendment is a repeal– Difference between 'amendment' and 'repeal".
An amendment, if it is made strictly following the prescribed procedure and does not alter any basic structure or essential feature of the Constitution, becomes a part of the Constitution whereupon it derives the same sanctity as the Constitution itself. If an amendment of a constitutional provision is the same thing as a law it is the Constitution whose position will fall down to the level of ordinary legislation. Validity of a law is tested by the touchstone of the Constitution; but there is no such stone to test the validity of the Constitution. Its validity is inherent and as such it is unchangeable. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142

Implied limitation on the amending power inherent in the word "amendment" in Article 142–Amendment of the Constitution is not its elimination or abrogation and is subject to the retention of the basic structures–Court has power to undo an amendment if it transgresses its limit and alters a basic structure of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142

Long title of the amending Bill. The purpose for the long title is to give a notice to the Members of the Parliament and there is nothing on record to show that any Member of the Parliament felt aggrieved or misled for the long title not being really a long one. Therefore, I reject the appellants' objection as to the non–compliance of procedural requirement in passing the impugned amendment. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142(1)

Bill– Long title– Clause(1) to the proviso in Article 142 does not mandatorily require that the subject or the object of the law is to be expressed in the long title of the bill. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article l42 (1A)

Not a case of "Vague doctrine of repugnancy"–Limitation on legislative competence–Preamble and Article 8 cannot be amended without referendum. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142 (1A)–

Constitution of Bangladesh–Preamble– Amendability of the Preamble–Its rigidity–It can only be amended by the people at referendum. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. ....View Full Judgment

Article 142

The power to amend the Constitution is different from the power to amend ordinary law. The distinction between the legislative power and the constituent power is vital in a rigid Constitution. When Parliament is engaged in the amending process it is not legislative, it is exercising a particular power bestowed upon it sui generis by the amending clause in the Constitution. (Hasan Foez Siddique, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 145(2)

The official liquidator executed the agreement on behalf of the government in exercise of the executive authority of the Republic under article 145(2) of the constitution. Even if Durnity Daman Commission finds irregularity in the process of transfer of the mills, the writ petitioner’s right cannot be affected, inasmuch as, the government has accepted two installments towards the consideration and handed over possession of the mills and that the government has not taken any disciplinary action against the officials who were involved in the process of transfer of the mills. .....Bangladesh =VS= Refat Garments Limited, (Civil), 2017 (2)– [3 LM (AD) 104] ....View Full Judgment

Article 147

Salary of Supreme Court Judges being exempted from Taxation it could not be included for the purpose of Taxation while computing their total Income. The position could not be affected by the notification issued in exercise of powers under the income Tax Act, the Act cannot control the provision of the President's Order that has provided for the exemption and achieved the status of sub–constitutional Legislation. Commissioner of Taxes, Dhaka (West) Zone vs Shahabuddin Ahmed 42 DLR (AD) 162. ....View Full Judgment

Article 147

The removal of Judges being part and parcel of their terms of service, the amendment is in violation of article 147 of the Constitution. (Muhammad Imman Ali, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

Article 150

Article 150 of the Constitution does not protect any piece of legislation under paragraph 10(2)(b) from challenge regarding its constitutionality. What Article 150 protects are the provisions contained in the Fourth Schedule of the Constitution. Dr. Nurul Islam Vs. Bangladesh and others, 1BLD(AD)140 ....View Full Judgment

Article 150

Means to protect acts done in transitional period—
Article 150 does not mean to protect the actions done by usurpers in violation of constitution, ibid 15 MLR (2010) (AD) Page 315, 316. ....View Full Judgment

Article 152

Pension is not a bounty of/or ex–gratia payment by the State as used to be considered once. Payment of pension is an obligation on the part of the State. Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr 51 DLR (AD) 121. ....View Full Judgment

Article 152(1)

The definition of "the service of the Republic" in Article 152(1) is broad and includes defence and judicial services, but that does not mean that the judicial service or the defence service is a part of the civil or administrative service. Services of different categories and status are included in the service of the Republic. Members of the judicial service wield the judicial powers of the Republic. They cannot be placed on par with the civil administrative executive services in any manner, Their nomenclature of service must follow the language employed by the Constitution. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment

Article 152

“Law” means
According to article 152 of our constitution, ‘“law” means any Act, Ordinance, order, rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh;’.
Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others (Civil) 10 ALR (AD) 1-220 ....View Full Judgment

Article 152

There are set of customs and usages which are being followed by the Judges in this subcontinent for over a century and those customs and usages have the force of law. Thus, if a Judge violates any of the established conduct, usage or custom, he will not only commit gross-misconduct but also violates his oath, the Constitution and the law. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231] ....View Full Judgment

Part III
To invoke the fundamental rights conferred by Part III of the constitution, any person aggrieved by the order, action or direction of any person performing the functions in connection with the affairs of the Republic, the forum is preserved to the High Court Division. The conferment of this power cannot be curtailed by any subordinate legislation - it being the inalienable right of a citizen. This power cannot be conferred upon any Tribunal by the Parliament in exercise of legislative power or by the High Court Division or the Appellate Division in exercise of its power of judicial review. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment

Chapter II of Part VI
The High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution–
When there is a deviation from the constitutional arrangements or constitutional arrangements have been interfered with or altered by the Government or when the Government fails to implement the provisions of Chapter II of Part VI of the Constitution and instead follow a different course not sanctioned by the Constitution, the High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution. This means the Apex Court of the Country is competent to issue directions upon the authorities concerned to perform their obligatory duties whenever there is a failure on their part to discharge their duties. .....Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40] ....View Full Judgment

The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme. .....BADC & others =VS= Md. Abdur Rashid & others, (Civil), 2016-[1 LM (AD) 388] ....View Full Judgment

Part IV, V and VI

Independence of judiciary cannot be obtained unless the judiciary is completely separated from other two organs, otherwise the Judges, appointed under the constitution, will not mentally feel that they are free in discharging their constitutional duties. (Mirza Hussain Haider, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment

In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

Writ petitioners did not challenge any disciplinary action taken against them by the Inspector–General of Police. The authority did not give the directions in accordance with the Police Act or the Bengal Police Regulations or the Ordinance of 1969. The writ petitioners also did not challenge the propriety of the imposition of black marks upon them. They have challenged the embargo imposed upon them by the Police Headquarter, which directly affected their right to be considered for promotion to the next higher post. Clause (5) of Article 102 does not stand in their way of making an application under Article 102(1) of the Constitution subject to the provision of Article 45 of the Constitution. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment

In sub-section (3) of section 6 of the Ain of 1995, if similar offence is committed by more than one person all of them will be sentenced to death. Suppose 5 persons are involved in the commission of the crime of them two directly participated in the commission of rape and other three persons abeted the offence. If these three persons are sentenced to death with other two, it will be contrary to norms and the sentencing principles being followed over a century. .....BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] ....View Full Judgment

Criminal contempt and a violation of the provisions of the Constitution–
The respondents have intentionally made the utterances as reported and have indeed expressly admitted their guilt. They have acted in violation of law and are in breach of their oath of office to preserve, protect and defend the Constitution. In their exuberance, they have undermined the sanctity of the institution of the judiciary by questioning the justice delivery system. The Constitution enjoins all citizens to abide by the law and makes the decisions of the Supreme Court law to be given effect to by all. The respondents have scandalized the Supreme Court in a highly motivated manner in order to influence the judgement of the Court. This is gross criminal contempt and a violation of the provisions of the Constitution. The contemnors deserve no sympathy other that the lenient view taken in awarding sentence which has already been expressed in the short order passed by this Court on 27th March, 2016. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment

4th Schedule (Para 19(2)

Power of review under the Martial Law Regulation– Extent and limit of the power–Any attempt to measure the extent or limit of power of this review with reference to powers exercisable under the Code of Criminal Procedure will be misleading. This will have to be determined by examining the terms of the Regulation. Upon a plain reading of the Regulation it cannot be doubted that the reviewing authority, among others, has the power to "vary" a judgment, even if it is of acquittal. The word "vary" in Regulation 3(4) includes the power to convert a judgment of acquittal into one of conviction. Helaluddin Ahmed vs Bangladesh 45 DLR (AD) 1. ....View Full Judgment

4th Schedule (Para 19)

Constitutional protection, plea of–The contention that the impugned order of termination of the employee was protected just because the president of the employer Trust happened to be the Chief Martial Law Administrator as well cannot be held correct when nothing was done under Martial Law of any Martial Law regulation in the matter. Freedom Fighter's Welfare Trust vs Momtazul Hossain 44 DLR (AD) 274. ....View Full Judgment

4th Schedule (Para 19(2))

Principle of natural justice–When the principle cannot be invoked– The review contemplated in Reg. 3 is a part of the original proceeding. There is no case that the appellants were not represented in the trial or prevented from appearance. In such circumstance it is difficult to accept that they ought to have been heard also at the time of reviewing the proceedings. Having regard to the language used in Para 19(2) of the Fourth Schedule, it will not be possible to successfully invoke any violation of the principle of natural justice. Helaluddin Ahmed vs Bangladesh 45 DLR (AD) 2. ....View Full Judgment

4th Schedule (Para 10(2)(b)) & Article 136

The very concept of weighing two different classes· of persons in the service of the Republic in the same scale and to fix for them corresponding grade and scale of pay is a twisting of the Constitutional scheme and is an anathema to the concept of judicial independence. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. ....View Full Judgment