Preamble of a statute–
The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous. .....S. N. Kabir =VS= Fatema Begum & others, (Civil), 2016-[1 LM (AD) 401] ....View Full Judgment

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.

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.

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.

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.

Article 2A declares Islam as state religion. But then it imposes an obligation upon the State to ensure “equal status and equal right in practice” of all other religion. Thus Article 2A through the use of the word “equal” places Islam at par with all other religion. Moreover, with regard to other religion, the Constitution places a positive obligation upon the State to ensure equal standing, if there is inequality. The wordings of Article 2A of the Constitution, in our view, do not lead to any discrimination between the holders of state religion and other holders of other religious beliefs. (Para 27, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

Article 2A of the Constitution, impugned herein, in our view, neither offends the basic principles of the Constitution, as contained in the preamble nor offends any other provision of the Constitution. The conferment of status of “State Religion” on its own does not tantamount to an action on the part of State to grant political status in favour of Islam. Article 2A must be read as a whole and once read, it becomes obvious that the insertion of the concept of Islam being the state religion does not, on its own, affect the constitutional rights of others having different religious beliefs. It does not affect the basic structure of the Constitution and also does not render the Constitution redundant. The impugned amendment also does not offend the concept of secularism, as provided for in the Constitution. (Para 39, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

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.

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

Our Constitution does not provide for any repugnancy clauses within the meaning set out in the aforesaid paragraph. Our Constitution, as on date, does not provide for any provision for enforcement of Islam as a superior religion. (Para 25, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

Purely political questions are outside the scope of judicial review:
“Purely political questions” are outside the scope of judicial review but when political questions have constitutional implications, such questions are most certainly reviewable; the review would be on the issue of constitutional implication and not on politics. In cases of amendment to Constitution, it would not suffice to say “there was politics behind the amendment”; the test would be whether the amendment, based on political consideration (if at all), is compatible with the Constitution. (Para 32, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

দরখাস্তকারী সংগঠনের অত্র মোকদ্দমা অত্র আদালতের সামনে উপস্থাপনের নিমিত্তে প্রয়োজনীয় আইনগত যোগ্যতা না থাকা হেতু অত্র রুলটি খারিজযোগ্য। অতএব, আদেশ হয় যে, অত্র রুলটি বিনা খরচায় খারিজ করা হলো। ...(Para 70 & 71, বিচারপতি মোঃ আশরাফুল কামাল), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

Above mentioned Articles of the Constitution makes it clear that the state is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the Constitutional principles including the doctrine of equality and larger public good. .....Grameenphone Ltd & ors Vs. BTRC & Ors, (Civil), 19 SCOB [2024] AD 96 ....View Full Judgment

Appellate Division is of the view that in the spirit of the Preamble and also Article 7 of the Constitution the Military Rule, direct or indirect, is to be shunned once for all. Let it be made clear that Military Rule was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever as the same is against the dignity, honour and glory of the nation that it achieved after great sacrifice; it is against the dignity and honour of the people of Bangladesh who are committed to uphold the sovereignty and integrity of the nation by all means; it is also against the honour of each and every soldier of the Armed Forces who are oath bound to bear true faith and allegiance to Bangladesh and uphold the Constitution which embodies the will of the people, honestly and faithfully to serve Bangladesh in their respective services and also see that the Constitution is upheld, it is not kept in suspension, abrogated, it is not subverted, it is not mutilated, and to say the least it is not held in abeyance and it is not amended by any authority not competent to do so under the Constitution. .....Khondker Delwar Hossain =VS= Bangladesh Italian Marble Works Ltd. , (Civil), 2023(2) [15 LM (AD) 270] ....View Full Judgment

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.

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.

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 Control and others 49 DLR (AD) 1.

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.

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.

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.

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.

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.

"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.

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

While distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest:
We consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provided economic and social services to human society and are considered valuable in their relatively unmodified, natural form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely form their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. .....Grameenphone Ltd & ors Vs. BTRC & Ors, (Civil), 19 SCOB [2024] AD 96
As a vital natural resource, the price of spectrum should be sufficient to ensure that it is valued and used wisely. Use of spectrum provides considerable benefits to the economy and benefits from spectrum should be maximized. In this regard we are of the view that in distributing natural resources like spectrum, rational transparent method should have been adopted so that the nation would have been enriched. .....Grameenphone Ltd & ors Vs. BTRC & Ors, (Civil), 19 SCOB [2024] AD 96 ....View Full Judgment

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

`Basic structures’ of the Constitution are not only unbendable but also any attempt for deviating from such provisions is a seditious offence. As consultation with the CJB with primacy is basic structure as per decision of the Apex Court, that automatically made an entry within the purview of Article 7A read with Article 7B and 7, as laws declared by the Appellate Division is binding under Article 111 of the Constitution. (Para 26-27, Per Justice Md. Nuruzzaman), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

Subsequent to such clear-cut and patent verdict and accomplishment by the Government i.e. the executive making necessary rules on "consultation with primacy" and after the enactment of the Fifteenth Amendment of the Constitution in 2011, is there any scope at all to leave the matter of antecedent or conduct of a Judge of the High Court Division in the hands of the executives or to make their (executives) opinion dominant over the opinion of the CJB? The answer is a big no. (Para 30, Per Justice Md. Nuruzzaman), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

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.

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.

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)

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.

Work-charged employees– The Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees who have served without break for a considerable period of time i.e for 20 years or more. All the authorities should take immediate appropriate action in that behalf.
In India in order to protect the interest of the work-charged employees Rules have been framed in different names in different States. For example, rule 2(c) of the Madhya Pradesh (Work Charged and Contingency Paid Employees) Pension Rules, 1979 have given status of a "permanent employee" to a work-charged employee who has completed fifteen years of service in such capacity. Under rule 4 such permanent employees have been given benefit of pension and gratuity available to regular employees of the State under the Madhya Pradesh New Pension Rules, 1951 and the Madhya Pradesh Civil Services (Pension) Rules, 1976. One thing, however, is to be borne in mind that mere attainment of status of a permanent employee by a work-charged employee does not ipso facto make him a regular employee if he is not regularized/ absorbed in the revenue set up (See State of Madhya Pradesh and Ors. Vs. Amit Shrivas, AIR 2020 SC 4541: (2020)10 SCC 496). The Chhattisgarh Civil Services (Medical Attendance) Rules, 2013 and the Andhra Pradesh Integrated Medical Attendance Rules, 1972 have included persons employed in the work-charged establishment to be eligible for receiving facilities under these rules. The Orissa Civil Services (Compassionate Grant) Rules, 1964 have been made applicable to all State Government servants including the work charged, job-contract and contingency paid employees other than daily-rated employees. Under these rules the family of a Government servant shall be eligible to "Compassionate Grant" in the event of death of the Government servant while in service.
It is the obligation of the State to take steps so that their lives do not fall in total ruination. For that reason, separate Rules are required to be framed for the persons who have been working as work-charged employees, if necessary, for protecting their future interest so that they do not fall in total disaster at the end of their work. .....Ministry of Housing and Public Works, BD =VS= Md. Saiful Islam, (Civil), 2022(1) [12 LM (AD) 366] ....View Full Judgment

Courts have always emphasized that having regard to the wide variety of diverse economic criteria that go into the formation of a fiscal policy, the Legislature enjoys a wide latitude in the matter of selection of persons, subject matter, events etc. for the purposes of taxation (“see also Elel Hotels and Investments Ltd. Vs. Union of India AIR-1990 SC 1664). In enacting legislations regarding fiscal matters, it is the obligation of the State or the Legislature to bring about equality in the society in order to establish equality before law in real sense as contemplated by Articles-8 and 27 of our Constitution. According to sub-article-(2) of Article-8, the principle set-out in Part-II of the Constitution shall be fundamental to the Government of Bangladesh and shall be applied by the State in the making of laws and shall be a guide to interpretation of the Constitution and of other laws of Bangladesh. In addition, Article-10 of our Constitution contemplates achievement of socialist economic system for ensuring the attainment of a just and egalitarian society free from the exploitation of man by man. Therefore, while Legislating a particular enactment, it is the obligation of the State as well the Legislature to keep in mind the said fundamental principles of State policy, in particular Article-8, in order to attain a just and equitable society in real sense so that the equality before law, as guaranteed under Article-27 of the Constitution, can be established in real sense. It has to be further borne in mind that equality before law, under no circumstances, cannot be achieved if the people of the country are situated unequally. In an unequal society, equality before law is a mere myth. Therefore, considering the above aspects, it has become a long practice that the Courts allow a larger or extended latitude to the Legislature in taxing matters inasmuch as that while legislating a financial policy of a particular government, the Legislature has to contemplate various complicated issues, which are beyond the contemplation of judicial review. ...Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors, (Civil), 8 SCOB [2016] HCD 67
The inherent distinction between a juristic person like company and an individual can easily be a basis for classification between a company and an individual. Under no circumstances that can be said unreasonable classification. Again, the classification between people having certain amount of properties or assets and the people not having such properties or amounts of assets is also reasonable in as much as that such classification is always there even if it is not made by law. An individual having total net worth above two crores or ten crores is always in a distinct group than an individual having total net worth of one crore or below two crores. Therefore, a Legislature cannot be insisted on not to differentiate between two classes of people when such classification is already there in the society, and it is the obligation of the State to enact law to reduce such disparity between different classes, in particular rich and poor. ...Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors, (Civil), 8 SCOB [2016] HCD 67 ....View Full Judgment

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.

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.

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.

In political terms, secularism is a movement towards the separation of religion and Government, often termed the separation of Church and State. Article 12 of the Constitution is unlike the French Constitution. It deals with “Secularism and freedom of religion”; this means that our Constitution while aiming to ensure secularism acknowledges and respects freedom of religion. Secularism is to be ensured but not at the cost of religion. How “secularism” will be ensured is set out in Articles 12(a)-12(d) of the Constitution. Article 12 of the Constitution provides that secularism shall be realized by elimination of “granting by the State of political status in favour of any religion”. Article 12, in our view contemplates impermissibility of “state religion with establishment” as “state religion with establishment” in many cases places the state religion in superior position. Article 12 as drafted, in our view, would impose an obligation upon the State to ensure religious authorities of any particular religion cannot dominate over the State since the basic structure of our Constitution would mandates Supremacy of State. (Para 38, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

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

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.

Income Tax Ordinance, 1984
Section 44(4)(b), 2(20)(a), 2(65), 16
Income Tax Act, 1922
Section 60(1)-(a)(3)
Constitution of Bangladesh
Articles 15, 17, 83
Private Universities Act, 1992/ 2010
Societies Registration Act, 1860
Companies Act, 1994
Section 28
The Trust Act, 1882
Private university is a juristic person— The observation of the High Court Division that tax on private universities will increase the education cost of the students is not correct, since income tax is a direct tax payable only when a private university earns income; In case of loss no tax is payable. —However, the writ-petitioner-respondent private universities may not be required paying tax if it enjoys tax exemption under any lawful arrangement. .....Ministry of Finance, Bangladesh =VS= North South University, (Civil), 2024(1) [16 LM (AD) 63] ....View Full Judgment

Meaning of 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. …Bangladesh & ors Vs. Professor Nurul Islam & anr, (Civil), 9 SCOB [2017] AD 46 ....View Full Judgment

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. …Bangladesh & ors Vs. Professor Nurul Islam & anr, (Civil), 9 SCOB [2017] AD 46 ....View Full Judgment

When the right to life of the people is at stake, the legislature is under the obligation to enact law to protect such right as per directives of the Court. As such the question of encroaching upon the domain of the legislature by the Court does not arise. …Bangladesh & ors Vs. Professor Nurul Islam & anr, (Civil), 9 SCOB [2017] AD 46 ....View Full Judgment

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

Equal pay for Equal work:
It is true that the principle of “Equal pay for Equal work” is not expressly declared by our Constitution to be a fundamental right. Article 20(1) proclaims that everyone shall be paid for his work based on the principle ‘from each according to his abilities, to each according to his work’ as a directive principle of State Policy. But the principle “Equal pay for Equal Work” has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 27 of the Constitution.
Carew and Company Limited vs. Chairman, Labor Court, 50 DLR 396, Bangladesh vs. Shamsul Haq, 59 DLR (AD) 54 and Bangladesh Biman Corporation vs. Rabia Bashri Irene and others, 8 MLR (AD) 223 relied. ...Md. Nur Hossain & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 299 ....View Full Judgment

The vast number of Officers, who are presently posted as OSD, are merely attending office and going back home every day without rendering any service. However, at the end of the month, they are being paid their salaries and other benefits. This is manifestly in contravention of Article 20 (2) of the Constitution, which prohibits enjoyment of unearned income. In other words, the Government itself is violating the provisions of Article 20 (2) of the Constitution by allowing the officials to enjoy ‘unearned income’. Obviously, this could not have been the intendment of the Legislature. ...M. Asafuddowlah Vs. Bangladesh, (Civil), 15 SCOB [2021] HCD 1 ....View Full Judgment

The continuation of the process of keeping an Officer as an OSD beyond the stipulated period of 150 days is ultra vires: In the event of any Officer being designated as an OSD, the Government must, without undue delay, form a Committee and undertake an inquiry so as to ascertain the veracity of such allegation/complaint. If the allegation/complaint is found to have substance, the Government should take appropriate action against the concerned Officer, in accordance with law. However, the process of enquiry must be completed within the stipulated period of 150 days. In view of the foregoing discussion and being mindful of the mandate, as contained in Article 20(2) and Article 88 of the Constitution, we are inclined to hold that the continuation of the process of keeping an Officer as an OSD beyond the stipulated period of 150 days is ultra vires and, therefore, without lawful authority. ...M. Asafuddowlah Vs. Bangladesh, (Civil), 15 SCOB [2021] HCD 1 ....View Full Judgment

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.

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

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

Government Building Act, 1899
Section 3
Constitution of Bangladesh, 1972
Article 24, 27, 31 and 32
Town Improvement Act, 1953
Building Construction Act, 1952
(মহানগরী, বিভাগীয় শহর ও জেলা শহরের পৌর এলাকাসহ দেশের সকল পৌর এলাকার খেলার মাঠ, উন্মুক্ত স্থান, উদ্যান এবং প্রাকৃতিক জলাধার সংরক্ষণের জন্য প্রণীত আইন, ২০০০)
State necessity–– Construction of the residences for the Speaker and the Deputy Speaker–– The said residences are not meant for an individual person, but for the Speaker and the Deputy Speaker who uphold a unique position under the Constitution of our country and in the said way the impugned project is being implemented for the public interest being the same is a state necessity–– It appears that the said construction of residences of the Speaker and the Deputy Speaker being for the public purpose in the government land is exempted from complying with provisions of other municipal laws. Therefore, the Town Improvement Act, 1953 and the Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on Government’s own land after obtaining clearances from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government as per approved plan. But the High Court Division committed error of law failing to appreciate the said matter. ––It also deserves to mention here that the writ petitioners obtained Rule and an order of stay of the operation of any further construction of the impugned project in the High Court Division in Writ Petition No.3548 of 2003 on 18.05.2003. Against the order dated 18.05.2003 and 21.07.2003 passed by the High Court Division the writ respondents-appellants preferred Civil Petition for Leave to Appeal before this Division and obtained stay operation of the said orders till disposal of the Writ Petition. During the subsistence of stay order from this Division 100% of the construction work of the residential building for the Speaker and the Deputy Speaker has been completed. But the High Court Division without taking notice of the said completion of the construction work made the Rule absolute by the impugned judgment and order dated 21.06.2004 for which the interference by this Division is warranted. .....Bangladesh =VS= Bangladesh Paribesh Andolon (BAPA), (Civil), 2022(2) [13 LM (AD) 496] ....View Full Judgment

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.

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. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

Income Tax Ordinance, 1984
Sections 16 CCC, 16, 17, 20, 28(1), 29, 35, 37, 38, 42, 83(2) & sec. 2 (34), (46), (65)
The Constitution of Bangladesh, 1972
Articles 26, 27, 31, 40 and 42 r/w
Companies Act, 1994
Finance Act
Section 16 CCC of the Ordinance, 1984 is enacted for betterment of the people of the country and to prevent tax evasion–– The legislature suddenly incorporated Section 16 CCC in the Ordinance, 1984 through the Finance Act, 2011, imposing liability of paying minimum tax @ 0.50% on gross receipts for every company irrespective of its profit or loss in an assessment year from all sources; Previously similar provision was also incorporated in the Ordinance, 1984 as Section 16 CC through the Finance Act, 2006 which was subsequently omitted by Finance Act, 2008; The provision of newly inserted Section 16 CCC being inconsistent and contrary to the provisions of Sections 16, 17, 20, 28(1), 29, 35, 37, 38, 42, 83(2) and definition clauses (34), (46), (65) of Section 2 of the Ordinance, 1984 as such is in conflict and contradictory with the aim, spirit, purposes, object and basic concept of the Ordinance, 1984; The fundamental rights of the petitioners guaranteed under Articles 26, 27, 31, 40 and 42 of the Constitution have been grossly violated and thus impugned Section 16 CCC of the Ordinance, 1984 is liable to be declared violative of the fundamental rights enshrined in the Constitution and also relevant provisions of the Ordinance, 1984.
The court must, therefore, act within their judicial permissible limitation to uphold the Rule of Law and harness their power in public interest and if the intent and general operation of the impugned tax legislation is to adjust the burden with a fair and reasonable degree of equality, Constitutional requirement is satisfied and in this regard a taxation law enacted by the Parliament in accordance with law is not amenable to judicial review. It has been consistently held by this Division that in matters of policy decision of the Government the court requires restraint. ––Appellate Division is of the view that impugned Section 16 CCC is enacted for betterment of the people of the country and to prevent tax evasion and the enactment is not arbitrary, unreasonable, unfair as well as not violative of any of the provisions of the Ordinance, 1984 or of the Constitution. .....S. Alam Beg Manufacturing Mills Ltd. =VS= Ministry of Finance, BD, (Civil), 2023(1) [14 LM (AD) 344] ....View Full Judgment

Income Tax Ordinance, 1984
Sections 16 CCC, 16, 17, 20, 28(1), 29, 35, 37, 38, 42, 83(2) & sec. 2 (34), (46), (65)
The Constitution of Bangladesh, 1972
Articles 26, 27, 31, 40 and 42
Fiscal policy and in exercise of the power of judicial review, court do not ordinarily interfere with the policy decisions–– It is a settled principle of law that a very wide latitude is available to the legislature in the matter of formulation of tax law i.e. fiscal policy and in exercise of the power of judicial review, court do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala-fide, arbitrariness, unreasonableness, unfairness etc. .....S. Alam Beg Manufacturing Mills Ltd. =VS= Ministry of Finance, BD, (Civil), 2023(1) [14 LM (AD) 344] ....View Full Judgment

The Foreigners Act, 1946
Section 14 r/w
The Constitution of Bangladesh, 1972
Article 26, 27 and 47 r/w
The Code of Criminal Procedure, 1898
Section 54
Since both the appellants filed application admitting that being junior police officer they could not dealt with the matter in appropriate manner and tenders unconditional apology and also considering their entire service career, Appellate Division is inclined to condone the compensation amount of Tk.5000/- as directed by the High Court Division to pay by each of the appellant nos.1 and 2 to the petitioner. The police personnels should keep in mind that the police force being specially trained as disciplined force and enjoys extra benefits and protection are maintained by the Government with tax money of the public for the purpose to serve the public as such the police personnels should be more cautious to maintain dignity of their profession as well as protect human rights of the citizens alongwith other rights enshrined in the constitution. The applications for condoning the compensation money are allowed. The appellants are exonerated from paying the compensation money. .....Abdul Gaffar (OC, Tejgaon PS) =VS= Md. Mohammad Ali, (Civil), 2022(1) [12 LM (AD) 51] ....View Full Judgment

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

A Writ Petition for judicial review of any action shall not be entertained if the petitioner does not, before coming to the High Court Division, exhaust any efficacious remedy available to him under any law. But there is no requirement of exhaustion of efficacious remedy for enforcement of fundamental rights under Article 102(1) and a petition under Article 102(1) cannot be turned down on the ground of non-exhaustion of any efficacious remedy.
The Writ Petition has been filed under Article 102(1) of the Constitution for enforcement of the fundamental rights of the petitioner-company under Articles 27, 31 and 40 of the Constitution. It is not a Writ Petition under Article 102(2) of the Constitution. So the Rule is maintainable.
The High Court Division held that it is not a case of closure of the factory of the petitioner-company; rather it is a case of suspension of the business of the petitioner-company. So no appropriate relief(s) can be sought from the Review Panel as evidenced by Annexure- ‘S’ (Memo No. 40.00.0000.022.10.009.2013.115 dated 11.05.2014) to the Affidavit-in-Reply. Regard being had to the facts and circumstances of the case, it is the admitted position that there was never any severe and imminent danger to the workers’ safety in the factory of the petitioner and that was also conceded by the other inspecting agency Accord and the buyer Li & Fung; but even then, the notice of suspension dated 18.06.2017 was issued in violation of Clause 7.2(c) of the Agreement (Annexure-‘A’) by the respondent no. 1 (Alliance) for reasons best known to itself. The entry dated 30.04.2019 in the website of the respondent no. 1 (Alliance) shows that the petitioner is a “participating” company. But the High Court Division fail to understand as to why the Alliance made the entry “participating” in its website without having any communication with the petitioner and without any RVV to its factory. It is undisputed that after issuance of the notice of suspension dated 18.06.2017, the Alliance did never inspect the petitioner’s factory nor did it suggest any remediation work thereof which is manifest from the CAP reports on the structural, fire and electrical safety of the factory preserved in the website of the Alliance. So the very insertion of the word “participating” against the name of the petitioner-company in the website of the Alliance as of 30.04.2019 appears to be mysterious, inexplicable and unfathomable. This might have been done by the Alliance to frustrate the instant Rule as submitted by Mr. Imtiaz Moinul Islam. It is admitted that the petitioner’s factory is a “shared” factory. It is further admitted that the DEA was approved by the Accord on 04.04.2017. But strangely enough, the Alliance does not indicate that the petitioner is under the Accord as well and the CAP relating to the petitioner in the Alliance website does not redirect any viewer/buyer to the Accord website. Now every person, wishing to do business with the petitioner, will enter the Alliance website and find the petitioner to be a “participating” company; but when he will enter the CAP of the Alliance, he will see that the petitioner has done nothing after the 6th RVV and he will naturally cancel any such wish. Had the Alliance, without having any ill-intention, followed the general system, then every person who would have entered the Alliance’s CAP would have been necessarily redirected to the Accord website where he would have found that the petitioner is a 100% compliant factory at the moment. By inserting the word “participating” with a mala fide intention in its website and by not including the Accord’s report therein as is the general rule, the respondent no. 1 violated the petitioner’s fundamental right guaranteed under Article 27 of the Constitution. By suspending the business of the petitioner-company through the notice of suspension dated 18.06.2017 (Annexure-‘O’), the petitioner’s fundamental right to profession guaranteed under Article 40 was also contravened. As according to the Accord website, the petitioner-company is a 100% compliant factory at present and as it is a “shared” factory both by the Accord and the Alliance, the suspension of its business by the Alliance by way of issuance of the notice dated 18.06.2017 can¬not be maintained at all; albeit at a later stage, the Alliance fraudulently wrote “participating” in its website as of 30.04.2019. The Accord had an escalation protocol like that of the respondent no. 1 (Alliance). But that escalation protocol of the Ac¬cord was not also approved by the NTPA or the Government of Bangladesh. Hence the Accord negotiated with the Government and the BGMEA to get approval to its escalation protocol vide the Workshop Summary dated 29.08.2018. Fi¬nally on 08.05.2019 (Annexure-‘V-2’), the Accord signed a MOU with the BGMEA. Clause 2 of the MOU dated 08.05.2019 indicates that the Accord has agreed to enforce its escalation protocol in collaboration with the BGMEA which conclusively proves that Annexures- ‘12’ and ‘12A’ to the Supplementary Affidavit-in-Opposition dated 03.07.2019 have nothing to do with the escalation process of the Accord or that of the Alliance and the Alliance has not taken any step as yet for approval of its escalation protocol as the NI or the Accord did (Annexures- ‘12A’ and ‘V-2’ respectively). For the same purpose of electric, fire and structural safety of the supplier factories, the Alliance and the Accord are prescribing different standards. The Alliance has agreed in Clauses 1.1, 4.1 and 5.1 of its Agreement (Annexure-‘A’) that it will follow a common standard and according to its factory inspection standard (Annexure-‘Q’), it will not duplicate any inspection completed by the Accord and will accept and use the Accord’s inspection report and the CAP concerned to track the progress of the remediation work of the factory. But the Alliance violated its own standard and issued the impugned notice of suspension dated 18.06.2017 (Annexure-‘O’) in flagrant infringement of the fundamental rights of the petitioner guaranteed under Articles 27, 31 and 40 of the Constitution. Having regard to the facts and circumstances of the case and in view of the foregoing discussions, the High Court Division finds merit in the Rule. The Rule, therefore, succeeds. Accordingly, the Rule is made absolute without any order as to costs. M/S BHIS Apparels Limited represented by its Managing Director, 671, Dattapara, Hossain Market, Tongi, Gazipur, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, BTI Celebration Point, Plot 3 & 5, Road 113/A, Gulshan-2, Dhaka- 1212, Bangladesh and others. (Spl.Original) 2019 ALR (HCD) Online 302 ....View Full Judgment

Constitution of Bangladesh
Article 27, 31 and 40
বাংলাদেশ অভ্যন্তরীন নৌ পরিবহন কর্পোরেশনের কর্মচারী চাকুরী প্রবিধানমালা, ১৯৮৯
Whether casual employees who worked for a substantial period in the BIWTC without any stigma are entitled to be absorbed in the revenue setup.
The High Court Division considered that it is conceded that there are sufficient vacant posts of Greaser for the appointment of the petitioners. Therefore the High Court Division does not find any reason for not absorbing/ regularizing the service of the petitioners in the revenue setup. The High Court Division hold that the petitioners can legitimately expect to be absorbed/regularized in the revenue set-up as some other employees who were appointed along with the petitioners on ‘no work no pay’ basis has been absorbed/ regularized in the revenue set up. In the above facts and circumstances of the case, the High Court Division is of the view that ends of justice would be best served if the High Court Division directs the respondents to absorb/regularize/confirm the service of the petitioners in the revenue setup except the petitioner No. 1. The respondents are directed to absorb/regularize/confirm the service of the petitioners in the permanent post of Greaser under the BIWTC except the petitioner No. 1 within 90 (ninety) days from the date of receipt of the copy of the judgment subject to the condition that they are not otherwise disqualified. With the above direction, the Rule is disposed of. Md. Nur Alam Chowkider 19 and others-Vs.- Bangladesh, represented by the Secretary, Ministry of Shipping, Bangladesh Secretariat, Ramna, Dhaka 6 and others. (Spl.Original) 2019 ALR (HCD) Online 352 ....View Full Judgment

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.

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.

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.

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. The 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.

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.

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.

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.

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.

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.

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

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 Bangladesh and others vs Md Jahangir Hossain and 65 others 51 DLR (AD) 148

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

Bangladesh Service Rules, Part I
Rule 300 read with
Article 27 and 31 of the Constitution:
By virtue of Rule 300(b), a privilege is being granted to those who take up another pensionable job subsequent to their resignation from service. Hence, the issue of discrimination is manifest in Rule 300(b). However, persons not taking up any pensionable job post resignation lose their pension forthwith by operation of Rule 300(a). In our view, this is discrimination and is, therefore, hit by Article 27 of the Constitution. Additionally, the immediate and automatic forfeiture of pension without issuing any notice or observing any legal procedure is also hit by Article 31 of the Constitution. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7 ....View Full Judgment

As per Article 27 of the constitution all citizens are equal before the law and are entitled to equal protection of law. The judges of the apex court have taken oath to administer justice in accordance with law without fear or favour. The judiciary must stand tall and unbend at all circumstances, even in adverse situation. The judiciary should not create a precedent which cannot be applicable for all. Each and all of the citizens are entitled to get equal treatment from the court of justice. There is no high or low before the court of law. ...Dr. Zubaida Rahman Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 54 ....View Full Judgment

The Public Employees Discipline (Punctual Attendance) Ordinance, 1982
Section 5 r/w
বাংলাদেশ লোক প্রশাসন প্রশিক্ষণ কেন্দ্র এর কর্মচারী চাকুরী প্রবিধানমালা, ১৯৯২
Regulation 36(1)(B)(R) r/w
The Constitution of Bangladesh
Article 27
We appreciate the decision of the Board of Governors of the BPATC in its 57th meeting to withdraw the appeals in question, it would have been perpetuating a discriminatory treatment towards the petitioners (respondents in the appeals) in clear violation of their fundamental rights of equality before law and equal protection of law as guaranteed in article 27 of the Constitution of the People’s Republic of Bangladesh. .....Bangladesh & others =VS= Hamento Kumar Barmon, [1 LM (AD) 429] ....View Full Judgment

Since as per Article 102(1) any person aggrieved can enforce any of the fundamental rights guaranteed under Part III of our Constitution, we do not find any difficulty on the part of the petitioner-company, an indigenous Bangladeshi company whose shareholders and directors are all Bangladeshi citizens, to invoke Articles 27 and 40 of the Constitution in this case. Besides, Articles 27 and 40 do not say who can enforce them; it is only Article 102 (1) which says any person aggrieved can enforce them which undeniably fall under Part III of the Constitution. So Articles 27 and 40 which have been invoked by the petitioner-company are to be interpreted in the light of Article 102(1) of the Constitution. ...M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors., (Civil), 13 SCOB [2020] HCD 1 ....View Full Judgment

If any post in the revenue budget lies vacant, the employee or officer who is eligible for appointment to the said post should be regularized– Appellate Division has been noticing in good number of cases that despite there are provisions for regularization of the service of employees or officers in the revenue set up either within six months or within such time as soon as the posts in the revenue budget are lying vacant, the government or the PSC intentionally delays in the process of regularizing their service and some-times, it recommends some junior employees or officers to the PSC for regularization and then recommend the senior employees to the PSC for regularization, who have been appointed on ad-hoc basis earlier with the result that the junior employees or officers get seniority and status over the senior employees and officers. This has created anomaly in the services of different departments. This discriminatory treatment should be avoided. Henceforth, it is directed that if any post in the revenue budget lies vacant, the employee or officer who is eligible for appointment to the said post should be regularized and if such appointment requires recommendation of the PSC his name should be recommended in due time so that he should not be deprived of his right of seniority than the junior employee or officer. ...Bangladesh =VS= Nadira Begum, (Civil), 2021(2) [11 LM (AD) 519] ....View Full Judgment

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

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.

Hindu Law of Inheritance (Amendment) Act, 1929
Sections 154, 155, 156 and 157
Constitution of Bangladesh, 1972
Article 28, 27, 19
Code of Civil Procedure
Section 115(1) r/w
Hindu Succession Act, 1956
Section 14
In the trial court, the plaintiff examined 4 PWs and the defendants examined 6 DWs. All the witnesses were cross examined. Some documents were adduced in evidence and marked as exhibits. ––Upon hearing the parties and perusing the evidence on record, learned Assistant Judge decreed the suit infavour of the plaintiff vide judgment and decree dated 26.02.1995 holding that ‘by amendment of Hindu Law of Inheritance, 1929’ the daughter’s daughter are included as heirs and according to that law the plaintiff inherited the property left by Rukkhini Dashi. ––Being aggrieved, the contesting defendants preferred Title Appeal being No.92 of 1995 in the Court of learned District Judge, Khulna, and on transfer the appeal was heard by the learned Additional District Judge, Court No.1, Khulna, who after hearing the parties dismissed the appeal by his judgment and decree dated 23.03.1999 affirming the judgment and decree of the trial court. ––Having aggrieved, the defendant-appellants filed Civil Revision No.2049 of 1999 under Section 115(1) of the Code of Civil Procedure before the High Court Division. In revision, the learned Single Judge of the High Court Division discharged the Rule vide judgment and order dated 04.07.2000 affirming the judgment and decree of the appellate court below. ––Appellate Division is of the view that the suit property being Stridhana of Rukkhini Dashi will lawfully devolve upon the plaintiff Elokeshi, Rukkhini’s daughter’s daughter according to her faith law ‘The Dayabhaga’. However, the trial court’s view on ‘The Hindu Law of Inheritance (Amendment) Act, 1929’, affirmed by the court of appeal and revision is hereby expunged. .....Shishubar Dhali =VS= Chitta Ranjan Mondol, (Civil), 2023(1) [14 LM (AD) 62] ....View Full Judgment

Constitution of Bangladesh, 1972
Article 29 r/w
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

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.

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

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

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.

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

Equal protection of law in appointment;
If any particular case the selection committee abuse its power in violation of Article 31 of the Constitution, that may be a case for setting aside the result of a particular interview. ...Dr. Nafia Farzana Chowdhury Vs. BSMMU & ors., (Civil), 14 SCOB [2020] HCD 33 ....View Full Judgment

No authority, not even the Government, has the right to degrade or malign a person and his family members in the society without observing the due process of law:
Article 31 contains two directives; the first being a positive one and the second being a prohibitive one. In the first part, the Constitution is categorical in stating that every citizen is to be treated “in accordance with law”, while the second part prohibits the taking of any action, save and except in accordance with law, which is detrimental to, amongst others, the “reputation of any person”. It is undeniable that when a Government Officer is designated as an OSD, it is detrimental to his/her reputation visa-vis the society. In reality, such Officers face humiliation and degradation not only in the estimation of their colleagues and family members, but also before the society at large. No authority, not even the Government, has the right to degrade or malign a person and his family members in the society without observing the due process of law. Such conduct is undoubtedly arbitrary and malafide. ...M. Asafuddowlah Vs. Bangladesh, (Civil), 15 SCOB [2021] HCD 1 ....View Full Judgment

A right or privilege, once granted, and that too by the Government, cannot subsequently be curtained or taken away merely by issuing another order, since a presumption of correctness is attached to such executive actions and/or orders, meaning thereby that all necessary formalities, both legal and official, had been observed. It is now well settled that every administrative action prejudicially affecting a person’s right, privilege or interest must be preceded by issuance of a notice to the person concerned. This is also a constitutional mandate, as stipulated in Article 31 of the Constitution, which requires every action affecting a citizen’s right to be taken “in accordance with law and only in accordance with law.” This vital pre-requisite was totally ignored in the instant case and on that count, the impugned action of the concerned respondent cannot be sustained. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7 ....View Full Judgment

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 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

"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

The Environment Conservation Act, 1995
Section 5 r/w
Environment Conservation Rules (1997) r/w
The Constitution of Bangladesh
Article 32
Right to life as guaranteed by the Constitution includes the right to protection and improvement of the environment and ecology– The Supreme Court of Bangladesh, on umpteen occasions, has given directives and guidelines to the government to demarcate the rivers as per their original borderlines and to restore free flow of water restraining the illegal attempts of their encroachments and to save them from being perished. Many housing companies and land developers found engaged in changing the nature and features of wetlands and rivers have already been stopped because of the proactive role of the Judiciary of Bangladesh. But, nevertheless, we have a long way to go and take a firm stand to build up public awareness and legislate more stringent laws to cope with the needs of the changing society, otherwise it will be difficult for us to protect the bountiful treasures of nature and ensure environmental security without which the lives of our posterity will be at stake. …Ministry of Land, BD =VS= Mohammad Mushfaqur Rahman, [8 LM (AD) 325] ....View Full Judgment

বেঁচে থাকার অধিকারের প্রমাণিত হরণ হলে আদালত ক্ষতিপূরণ প্রদান করবেঃ
সরকারী কর্মকর্তা-কর্মচারীগণ কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহ কর্তৃক tortius তথা পূরণযোগ্য ক্ষতির অপরাধ সম্পাদনের কারণ ক্ষতিগ্রস্থ ব্যক্তি প্রাইভেট আইনের আওতায় তার দাবী সাধারণত উত্থাপন করেন। কিন্তু সংবিধানের অনুচ্ছেদ ৩২ মোতাবেক প্রদত্ত অধীকার তথা বেঁচে থাকার অধিকারের প্রমাণিত হরণ হল সাংবিধানিক আদালত ক্ষতিপূরণ প্রদান করবে। ক্ষতিগ্রস্থ ব্যক্তি তথা মৃত ব্যক্তির বেঁচে থাকার অধিকার প্রমাণিত হরণের উপরিল্লিখিত সাংবিধানিক দাবী উত্থাপনের পাবলিক আইন প্রদত্ত অধিকারটি প্রাইভেট আইন প্রদত্ত দাবী আদায়ের সুযোগের অতিরিক্ত হিসেব গণ্য হবে। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84
রাষ্ট্রের কর্মকর্তা-কর্মচারী কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহের কার্য বা আদেশ দ্বারা কোন ব্যক্তি বেঁচে থাকার সংবিধান প্রদত্ত মৌলিক অধিকার হরণ করা হল উক্ত হরণ সংশ্লিষ্ট রাষ্ট্রের কর্মকর্তা-কর্মচারী বা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহের কঠিন দায় (Strict liability)। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84
যেখানে ভিকটিমের তথা মৃত ব্যক্তির মৌলিক অধিকার তথা বেঁচে থাকার অধিকারের প্রমাণিত হরণ হবে সেখানে আদালত সংক্ষুব্ধ ব্যক্তির দাবী এ কারণে চলার নীতি অনুসরণ করবেন না যে, সংক্ষুব্ধ ব্যক্তি দেওয়ানী আদালত মোকাদ্দমা দায়েরের সুবিধাপ্রাপ্ত। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84
টর্ট তথা ক্ষতিপূরণ আইনে ভিকারিয়াস লায়াবিলিটি (Vicarious Liability) নীতিটি সাংবিধানিক আইনে মৌলিক অধিকার ভঙ্গের ক্ষেত্রেও সমভাবে প্রযোজ্য। সাংবিধানিক আইনে ক্ষতিপূরণের নীতিটি বর্তমানে সুপ্রতিষ্ঠিত। সাংবিধানিক আইনে সরকার বা সরকারী কর্তৃপক্ষ তাদের অধীনস্থ কর্মকর্তা-কর্মচারীদের দায়িত্বে গাফিলতির জন্য ক্ষতিপূরণ দিতে বাধ্য। তবে সরকার এই সমপরিমাণ টাকা দায়িত্বে গাফিলতির জন্য দায়ী সংশ্লিষ্ট কর্মকর্তা, কর্মচারী এবং ঠিকাদারদের কাছ থেকে আইনগত পদ্ধতিতে আদায় করে সরকারী কোষাগারে জমা দিবেন। এই নীতিটির ফলে সরকারী কোষাগার থেকে ক্ষতিপূরণ দিলেও দায়িত্বে অবহেলা যে সব কর্মকর্তা বা কর্মচারী করেছে তাদের কাছ থেকে এই টাকা আদায় করে সরকারী কোষাগারে জমা দেয়া হবে। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84 ....View Full Judgment

সংবিধানের অনুচ্ছেদ ৩২ মোতাবেক কোন ব্যক্তিকে তার জীবন হতে বঞ্চিত করা যাবে না। এটি বাংলাদেশ অবস্থিত প্রত্যেক ব্যক্তির মৌলিক অধিকার। সংবিধান এখানে নাগরিক শব্দটি ব্যবহার করে নাই, করেছে ‘ব্যক্তি’ শব্দটি। অর্থাৎ বাংলাদেশের নাগরিকসহ বাংলাদেশে অবস্থিত বৈধ অবৈধ যে কোন ব্যক্তিকে বাংলাদেশ নামক রাষ্ট্র সুরক্ষা প্রদান করবে। বাংলাদেশে অবস্থিত প্রত্যেক ব্যক্তির জীবনের সুরক্ষা প্রদান করে প্রদত্ত মৌলিক অধিকার হলো রাষ্ট্রর “কঠিন দায়” তথা “Strict Liability”। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84
ক্ষতিপূরণের আদেশ দেয়ার পরে প্রায়ই দেখা যায় যে, প্রতিবাদীগণ ক্ষতিপূরণের টাকা দিতে কালক্ষেপন করেন। ক্ষতিপূরণের টাকা পরিশোধে বিলম্বের দ্বারা ভুক্তভোগীদেরকে এক ধরণের অজানা আশংকার মাঝে নিমজ্জিত করে রাখা হয়। সেজন্য ক্ষতিপূরণের মামলায় ব্যাংক রেট হারে ক্ষতিপূরণের সাথে সুদ প্রদানের বাধ্যবাধকতা থাকা প্রয়োজন। ক্ষতিপূরণ একটি দেনার মতো, একটি ঋণের মতো যা সুদসহ পরিশোধিত হয়। ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84 ....View Full Judgment

সন্দীপের গুপ্তছড়া ঘাটে লাল বোট ডুবে ১৮ জন যাত্রীর মৃত্যু ৮ ও ৯নং প্রতিপক্ষদ্বয়ের অবহেলায় সংঘটিত হয়েছে যা প্রমাণিত সত্য এবং উক্ত “অবহেলা (Negligence)” আইনসংগত কর্তৃত্ব ব্যতিরেকে করা হয়েছে বিধায় উক্ত “অবহেলা (Negligence)” এর কোন আইনগত কার্যকারিতা নাই মর্মে ঘোষণা করা হলো এবং ১৮ জন মৃত ব্যক্তির পরিবারকে ক্ষতিপূরণ প্রদান ৮ ও ৯নং প্রতিপক্ষদ্বয়ের করণীয় কার্যহেতু উক্ত ক্ষতিপূরণ প্রদানের নির্দেশ প্রদান করা হলো। আমরা, অতঃপর, নিম্নে বর্ণিত আদেশ এবং নির্দেশনা সমূহ প্রদান করলামঃ
১। সংবিধানের অনুচ্ছেদ ৩২ মোতাবেক প্রদত্ত মৌলিক অধিকার তথা বেঁচে থাকার অধিকারের প্রমাণিত হরণ (Proved infringement) হল সাংবিধানিক আদালত তথা হাইকোর্ট বিভাগ সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় ক্ষতিপূরণ প্রদান করতে মৌলিক এখতিয়ারসম্পন্ন।
২। সাংবিধানিক আদালত তথা হাইকোর্ট বিভাগ কর্তৃক সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় অধিকার প্রাইভেট আইন (Private Law)-এ প্রদত্ত ক্ষতিপূরণের দাবী আদায়ের অধিকারের অতিরিক্ত হিসেবে গণ্য হবে। ৩। সরকারী কর্মকর্তা-কর্মচারীগণ কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহ কর্তৃক পূরণযোগ্য ক্ষতির অপরাধ সংগঠিত হলে ভিকটিম তথা মৃত ব্যক্তির পরিবারের যেকোন সদস্য অথবা তাহাদের পক্ষে যেকোন ব্যক্তি জনস্বার্থে হাইকোর্ট বিভাগ সংবিধানের অনুচ্ছেদ ১০২ এর আওতায় ক্ষতিপূরণ চেয়ে মামলা দায়ের করতে হকদার।
৪। সরকারী কর্মকর্তা-কর্মচারীগণ কর্তৃক কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহ কর্তৃক পূরণযোগ্য ক্ষতির অপরাধ সংশ্লিষ্ট কর্মকর্তা-কর্মচারী কিংবা রাষ্ট্রের প্রতিষ্ঠান বা প্রতিষ্ঠানসমূহের কঠিন দায়বদ্ধতা (Strict liability)z
৫। ১৮টি পরিবারের প্রতিটি পরিবারকে ১৫ লক্ষ টাকা করে মোট ১৮ * ১৫,০০,০০০=২,৭০,০০,০০০/- (দুই কোটি ৭০ লক্ষ টাকা মাত্র) টাকা যার অর্ধেক BIWTC (৮নং প্রতিবাদী) এবং অর্ধেক CDC যা ৯নং প্রতিবাদী চেকের মাধ্যমে ক্ষতিগ্রস্থ পরিবারের কাছে অত্র রায় প্রাপ্তির ৩০ কর্মদিবসের মাধ্যমে হস্তান্তর করবে এবং ক্ষতিপূরণের অতিরিক্ত হিসেবে মামলা দায়েরের তারিখ থেকে শুরু করে ক্ষতিগ্রস্থদের একাউন্টে ক্ষতিপূরণের টাকা জমা পর্যন্ত প্রচলিত ব্যাংক রেট তথা ৮% হারে সুদ প্রতিবাদীগন পরিশোধ করবে।
৬। দরখাস্তকারী মোঃ জহিরুল ইসলাম এবং বিজ্ঞ এ্যাডভোকেট আব্দুল হালিমকে ক্ষতিগ্রস্থ ব্যক্তিগণের পক্ষে জনস্বার্থে অত্র মামলা দায়েরের জন্য বিশেষ ধন্যবাদ জ্ঞাপন করা হলো।
৭। অত্র রায় ও আদেশের অনুলিপি বাংলাদেশের সকল পাবলিক ও প্রাইভেট বিশ্ববিদ্যালয়ের আইন বিভাগের চেয়ারম্যান বরাবর ই-মেইল এর মাধ্যমে প্রেরণের জন্য নির্দেশ প্রদান করা হলো
৮। অত্র রায় ও আদেশের অনুলিপি অধস্তন আদালতের সকল বিচারককে ই-মেইল এর মাধ্যমে পাঠানোর জন্য সুপ্রীম কোর্টের রেজিষ্ট্রার জেনারেল নির্দেশ প্রদান করা হলো
৯। অত্র রায় ও আদেশের অনুলিপি Judicial Administration Training Institute (JATI)-তে পাঠানোর জন্য সুপ্রীম কোর্টের রেজিষ্ট্রার নির্দেশ প্রদান করা হলো ...Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য), (Civil), 16 SCOB [2022] HCD 84 ....View Full Judgment

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

Prolonged police custody; Article 33 (2) of the Constitution:
It has been vehemently argued by the defence that appellant Zahangir Alam was kept in the police station from 03.02.2006 to 05.02.2006 i.e beyond the permitted period of 24 hours without taking him before a Magistrate and this illegal detention of the appellant suggests that the confessional statement given by him is not voluntary. From the crossexamination of PW-42 Md. Faizur Rahman, the then Officer-in-Charge of Motihar Police Station, it appears that appellant Zahangir Alam was taken to the police station on 03.02.2006 for questioning him about the occurrence. At that time he was not arrested in connection with this case. In fact, when Zahangir was taken to the police station on 03.02.2006the whereabouts of Professor Taher was not known to anybody and no formal ejahar was lodged. After the discovery of the dead body of Professor Taher Ahmed PW-1 lodged a formal FIR at around 10.10 AM on 03.02.2006. Even at that time, PW-1 did not make Zahangir an accused. It suggests that he was not taken to the police station as an accused. He was just taken there for questioning. The Investigating Officer of a case has the power to require the attendance of a person before him who appears to be acquainted with the circumstances of the case. When appellant Zahangir Alam was taken to the police station the facts of the killing of Professor Taher were still unfolding and nobody knew who did what. Appellant Zahangir Alam, being the caretaker of the house of the victim, was the best person to demystify and clear many questions about the occurrence posing inside the mind of the Investigating Officer. He was thought to be a vital person who could shed light on many unsolved questions and could help the prosecution to understand what actually happened there. But when from the circumstances it appeared unmistakably that Zahangir Alam must be one of the perpetrators of the killing of victim Professor Taher, he was then arrested on 04.02.2006 and was produced before the Magistrate on the next day, i.e., within 24 hours of his arrest as required by Article 33 (2) of the Constitution. So, the police did nothing wrong in arresting appellant Zahangir Alam after being sure about his complicity with the offence and producing him before the Magistrate within 24 hours of his arrest and for that reason, the defence objection does not sustain. ...Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Constitution of Bangladesh, 1972
Article 35 (2)
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

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.

Person dies in police custody or jail Authority–
The High Court Division also directed to add a new section after section 44 of the Police Act. It observed that if a person dies in police custody or jail the police officer who has arrested the person or the police officer who has taken him in custody for the purpose of interrogation or the jail authority in which jail the death took place shall explain the reasons for death and shall prove the relevant facts to substantiate their explanation. Accordingly, it observed that in case of such incidents there is no provision for maintaining any diary for recording reason for arrest of any person without any warrant and other necessary particulars. As observed above, the government has promulgated a law covering the field namely নির্যাতন এবং হেফাজতে মৃত্যু (নিবারণ) আইন, ২০১৩. In the preamble it is stated that as the Bangladesh is a signatory of the New York’s Declaration on 10th December, 1984 towards cruel, inhuman, disgraceful behaviour; and as Bangladesh is a partner in the Treatise signed on 5th October, 1998; as in article 35(5) of the constitution prohibits torture and cruel, inhuman, degrading treatment and punishment; and as in articles 2(1) and 3 of the United Nations charter demanded to promulgate a law by the countries which signed the charter treating the torture, cruel, inhuman and degrading treatment of a citizen is an offence; and therefore, in order to implement the charter the law has been promulgated. This piece of legislation covers all the above inhuman acts. In presence of specific legislation, we find it not necessary to add any provision in other laws in this regard. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment

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.

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.

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.

Constitution of Bangladesh, 1972
Articles 35(1) and 102
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

It appears from the above quoted provision of the Constitution that, a guarantee has been provided in favour of any person not to be prosecuted and punished for the same offence more than once. Therefore, the very condition to attract this provision is that, a person has to be first prosecuted and punished. The admitted position in this case is that, the petitioner was yet to be prosecuted and/or punished in any of the impugned criminal cases when he moved this writ petition. Thus, the very words of the Constitution under Article 35(2) make it clear that the said provisions was or is not attracted in so far as those criminal cases are concerned. ...Mahmudur Rahman Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 119 ....View Full Judgment

On a plain reading of the aforesaid provisions, it is apparent that right of a citizen to move freely throughout the country as well as to leave and re-enter Bangladesh is guaranteed by this provision. But it is conditional i.e subject to any reasonable restriction to be imposed by law in the public interest. .....Ali Imam Vs. The Judge, Artha Rin Adalat & ors, (Spl. Original), 19 SCOB [2024] HCD 76 ....View Full Judgment

Our apex Court precisely observed that freedom of movement envisage in Article 36 is not absolute and it shall be subjected to supervision by the Court. At the same time, the apex Court required the public interest as well as the provision of law, for imposing condition in order to interfere with the right to freedom of movement. .....Ali Imam Vs. The Judge, Artha Rin Adalat & ors, (Spl. Original), 19 SCOB [2024] HCD 76 ....View Full Judgment

57 of the Artha Rin Adalat Ain, 2003 read with Article 36 of the Constitution:
Since the Banks are the custodian of the public money and the plaintiff-Bank is in the run of realisation of public money from the loan defaulters, of course the anxiety of the Bank attracts the public interest as envisaged under Article 36 of the Constitution. Therefore, considering all these aspects, the Adalat rightly passed the impugned order in the public interest having legal sanction under section 57 of the Act which does not call for any interference. .....Ali Imam Vs. The Judge, Artha Rin Adalat & ors, (Spl. Original), 19 SCOB [2024] HCD 76 ....View Full Judgment

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.

If the government is allowed to restrict a person from going abroad at its discretion, then Article 36 of the Constitution will become nugatory. This Court being the guardian of the Constitution cannot condone such practice. ...Kazi Mazharul Islam Vs. Bangladesh & ors., (Civil), 4 SCOB [2015] HCD 115 ....View Full Judgment

Constitution of Bangladesh, 1972
Article 36 r/w
Anti-Corruption Commission Act, 2004
Section 17(Ta) and 19(Cha)
The provision provided in Article 36 safeguard the right to go abroad against executive interference which is not supported by ‘inacted law’– It is observed:-
1. The fundamental right guaranteed under Article 36 of the Constitution is non-absolute right. The right to leave one’s country has therefore never been considered an absolute right. The right may be restricted in certain circumstances.
2. Article 36 of the Constitution permits imposition of restrictions. However, such restrictions must be by way of the law enacted and must be reasonably needed in the public interest.
3. Without backing of law imposition of restriction on the freedom of movement by an executive order will be unconstitutional.
4. The legislative view of what constitute reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Court.
5 . A restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of the public. The restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.
6. Freedoms if absolute would always be detrimental to smooth functioning of the society. Reasonableness demands proper balancing.
7. The right to leave the country and to possess a passport may be restricted, most notably if the person’s presence is required due to their having been charged with a criminal offence. However, merely because a person is involved in a criminal case, he is not denude of his fundamental rights.
8. Restriction may be imposed on travel in order to prevent exit from the country by persons who leave quickly to avoid due process of law. However, this would be subject to confirmation by the appropriate Court within a period of 3 working days.
With the observations, all the petitions are disposed of. ...Durnity Daman Commission, Dhaka =VS= G.B. Hossain, (Civil), 2021(2) [11 LM (AD) 97] ....View Full Judgment

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.

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

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.

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.

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.

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.

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

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.

"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.

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.

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.

It is worthwhile to mention that Article 39 of the Constitution has guaranteed freedom of thought and conscience. More specifically, Article 39 (2)(b) has clearly mentioned about the term of ‘freedom of the press’. Furthermore, Article 39 of the People’s Republic of Bangladesh guarantees freedom of press and the right of every citizen to freedom of speech and expression subject to certain exceptions. That such exceptions are namely (i) in the interests of the security of the State, (ii) friendly relations with foreign states, (iii) public order, decency or morality, or (iv) in relation to contempt of court, (v) defamation or (vi) incitement to an offence. Apart from the above, investigative journalism is the necessary corollary of such freedom. ...The State Vs. ACC and ors, (Civil), 17 SCOB [2023] HCD 40 ....View Full Judgment

In a democracy, there should be an efficient and fearless press to act as watchdog of democracy:
Investigation by a journalist includes research, gathering information from different sources, observation and due diligence. In doing so, the journalists act as the fourth pillar of democracy and consequently, serve the nation. They are the part and parcel of a democratic process. In a modern world, right to information is being treated as one of the pre-conditions for expression of opinion. Journalists act as helping hands for ensuring rule of law and democracy which have been recognized as the basic structure of the Constitution. They work as watchdogs and in appropriate situation; they ventilate information not to undermine any person but to serve the cause of justice. In a democracy, there should be an efficient and fearless press to act as watchdog of democracy. Newspapers make people aware of every field of society. In the present age, corruption is present in all walks of life. Newspapers play an important role in highlighting the menace of corruption and thereby the people are made aware of the corrupt practices if any prevalent in various state-run departments, organisations, agencies and private organisations. ...The State Vs. ACC and ors, (Civil), 17 SCOB [2023] HCD 40 ....View Full Judgment

The media and the journalists are constitutionally and legally authorised to publish news reports on corruption and corrupted practices:
Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish. Under the aforesaid discussions, our considered view is that the media and the journalists are constitutionally and legally authorised to publish news reports on corruption and corrupted practices along with money laundering if any including other important news on the matters of public interest. ...The State Vs. ACC and ors, (Civil), 17 SCOB [2023] HCD 40 ....View Full Judgment

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

In the case in hand cancellation of license was indeed an unbridled arbitrary outcome of executive feat which certainly had indulged in excesses. The act has a curtailing effect upon Article 40 of the Constitution in particular. It has flouted Article 40 of the Constitution directly. The Constitution being the Supreme law of the land the framers of the same in their wisdom have made some provisions protecting the right of the citizen. To do lawful business or trade subject to restriction of law is one of those provisions which can not be curtailed or throttled in any manner by any authority. ...Eastern Money Changer Vs. Bangladesh Bank & ors, (Civil), 3 SCOB [2015] HCD 42 ....View Full Judgment

The impugned constitutional amendment in our view, does not offend Article 41 of the Constitution. To the contrary, it supplements Article 41 because it places an obligation upon the State to ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religion. (Para 35, Per Naima Haider, J), .....Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 41 ....View Full Judgment

“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

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.

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

The Constitution of Bangladesh, 1972
Article 42(1) r/w article 31
The Limitation Act
Article 10 (First Schedule)
State Acquisition and Tenancy Act, 1950
Section 96
Hadis r/w Quran
Pre-emption–– From the judgment of the trial Court, it appears that it decreed the suits on the findings, inter alia, that the plaintiffs proved that they were the owners of ‘B’ scheduled land which is contiguous to the suit land and therefore, they were entitled to file the suit for pre-emption as Shafi-I-Jar; that the plaintiffs failed to prove that they had a path way on the suit land for engress and outgress from ‘B’ scheduled land; that the suits were filed well within the period of limitation; that the plaintiffs proved their case of Talab-I Mowasibat and Talab-I-Ishad. ––Appellate Division can easily and definitely say that the saying of the great Prophet (saw) is Hadis. ––The source of pre-emption as Shafi-I-Jar, i.e. vicinage from Hadis: (I) Narrated by Ibn Abbas that the Prophet (saw) said, “Whoever has land and wants to sell it, let him offer it to his neighbour (Ibn Majah).” (II) Narrated by Abu Rafi “That the Prophet (saw) said, “The neighbour has more right to property that is near (Sahih Al Bukhari and Sahih Al Muslim).” (III) Narrated by Sharid Bin Suwaid that “I said, O Messenger of Allah, (what do you think of) land owned by only one person but this land has neighbours?” He said: “The neighbour has more right to property that is near” (Sahih Al Bukhari). (IV) Narrated by Samarah that the Prophet of Allah (PBUH) said, “The neighbour of the house has a greatest right to pre-empt the house” (Jamai of Tirmizi).
In the instant case, the agreement for sale vide Ext-‘A’ was executed on 16.08.1995 and part payment was made on that date and physical possession of the suit property was also handed over to the vendee on receipt of full consideration, the sale deed was executed and presented for registration on 07.03.1996 whereas, the suit was filed on 30.06.1997, i.e. much beyond the period of limitation of 1 (one) year as provided in article 10 of the First Schedule to the Limitation Act. But the trial Court totally ignored the above factual and legal aspects of the case and thus erred in law in holding that the suits were not barred by limitation. ––Appellate Division finds that the High Court Division was totally wrong in declaring the right of pre-emption under the Muhammedan Law on the ground of vicinage both agricultural and town property void being discriminatory and violative of article 42(1) read with article 31 of the Constitution. .....Jamuna Knitting and Dying Ltd. =VS= Messer’s Y. K. Co. Textile Ltd, (Civil), 2023(1) [14 LM (AD) 139] ....View Full Judgment

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.

The Constitution of Bangladesh, 1972
Article 42 r/w
The State Acquisition of Tenancy Act, 1950
Section 97 r/w
The Chittgaong Hill Tracts Regulation, 1900
Rule 34 r/w
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

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.

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.

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.

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.

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) 165.

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.

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.

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.

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

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 Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....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 Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment

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

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 and others, (Civil), 1 SCOB [2015] AD 22 ....View Full Judgment

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.

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

Ensuring the independence of judiciary and making it separate from the executive were two primordial intentions of our Constitution framers:
It is unmistakably evident that ensuring the independence of judiciary and making it separate from the executive were two primordial intentions of our Constitution framers. In the aforementioned case laws of our Apex Court such as “Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th Amendment Case”, “13th Amendment Case”, “16th Amendment Case” these primal intentions of our Constitution Makers were pronounced recurrently. (Para 23, Per Justice Md. Nuruzzaman), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21
Principle of natural justice too requires that if any decision taken against anyone he/she must know the reasons thereto and have the opportunity in presenting his/her defenses:
Our Apex Court in many cases decided that when someone striped with jobs he/she must get an opportunity to explain his views before being sacked. Principle of natural justice too requires that if any decision taken against anyone he/she must know the reasons thereto and have the opportunity in presenting his/her defenses, if any. The non-confirmation of Mr Md. Farid Ahmed Shibli and Mr. A.B.M. Altaf Hossain as permanent Judge of the Supreme Court is thus a clear violation of Principle of natural justice as well as settled case laws concerned of the Apex Court. (Para 57 & 58, Per Justice Md. Nuruzzaman), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21
Concept of Independence of Judiciary is a basic structure of our Constitution:
The concept of independence of judiciary is that the Judiciary should be free from other branches of the Government. It should have freedom from fear and favour of the other two organs. The concept has its origin in the doctrine of separation of power. Defining the Independence of Judiciary by emphasizing only the creation of Judiciary as an autonomous institution separate from other branches is not sufficient unless the core idea of judicial independence is exhibited, which is the independent power of the judges to decide a case before them according to the rule of law uninfluenced by any other factors. Independence of the Judiciary is important for the sole reason of safeguarding the rights and privileges of the people and thereby providing equity and justice to all. The Rule of Law, which explains the supremacy of the Constitution, can only be achieved when there is an independent and impartial judiciary at the top level to ensure proper interpretation and implementation of the Rule of Law. For this reason, it is so important to maintain the Independence of Judiciary and thus protect the democracy and as such the concept of Independence of Judiciary is a basic structure of our Constitution. (Para 126, Per Justice Borhanuddin), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21
In judicial review, court can examine whether in a given case the authority concerned has acted bonafide, reasonably, just and fairly:
It is now well settled that judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision making process itself and further, that in judicial review, court can examine whether in a given case the authority concerned has acted bonafide, reasonably, just and fairly and also within its jurisdiction. (Para 171, Per Justice M. Enayetur Rahim), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21
The court cannot declare judicial hands off. So long as the question arises whether an authority under the constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a mala fide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by the court in judicial review. The court cannot be debarred to examine the decision making process and the correctness of the decision itself. (Para 186, Per Justice M. Enayetur Rahim), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21
Effective consultation:
‘Consultation’ means ‘effective consultation’. Such consultation of the President with the Chief Justice for the purpose of appointment of Judges in the Supreme Court is not a mere formalities, in other words it's not ‘chatting at the tea table’; rather, it has a great sanctification, significance, importance, consequence and far reaching effect. (Para 196, Per Justice M. Enayetur Rahim), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

Interpreta­tion of statute–Amicus curiae's inerpretation of the use of prepositions "of' and "for" in case of President, Parliament and Supreme Court ­Significance 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.

Constitution of Bangladesh, 1972
Article 48(4), 52, 53, 56, 66, 119(1)(a), 133, 134 & 152
Presidential Election Act, 1991
Section 7
Anti-Corruption Commission Act, 2004
Section 9
General Clauses Act, 1897
Section 3(50)
The office of the President of the Republic is not an office in the service of the Republic in respect of the Government of Bangladesh–– The question arises as to whether the office of the President of the People’s Republic of Bangladesh is an office of Profit in the Service of the Republic or not. ––Sole Presidential Candidate Mr. Md. Shahabuddin does not hold any office of profit in the service of the Republic as per the definition provided in Article 152 of the Constitution. Therefore, he is qualified for election to be a member of the Parliament.
In the case of President of the People’s Republic of Bangladesh, Government of Bangladesh cannot appoint President. Removal procedure of the President is also very stringent since he can be removed by impeachment by two thirds majority of the total members of Parliament (Article 52 and 53 of the Constitution). Government cannot remove president at its will since Government may be formed by simple majority of the members of Parliament [article 56 of the Constitution]. So from the point of view of control over the President by the Government, the office of the President can in no way be termed as office of profit in the Service of the Republic in respect of the Government. This position was also recognized in the case Abu Bakkar Siddique Vs. Justice Shahabuddin Ahmed and Others reported in 49 DLR (HCD) page 1. In this case it has been categorically held that the office of the President of the Republic is not an office in the service of the Republic in respect of the Government of Bangladesh. ––This petition is dismissed with a cost of taka 1,00,000/- (one lac). The leave petitioner is directed to deposit cost in the relevant head of the Republic exchequer within 2(two) weeks from the date of receipt of the order. .....Adv. M.A. Aziz Khan =VS= Election Commission, Bangladesh, (Civil), 2024(1) [16 LM (AD) 538] ....View Full Judgment

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

Writ Petition is maintainable: Based on the decisions above, my considered view is that since reasons would form part of the advice, the Court would be precluded from calling for their disclosure but Article 48(3) of the Constitution is no bar to the production of all the materials on which the advice was based. Accordingly, I am of the view that the writ petition filed by the appellant is very much maintainable. (Para 153 & 154, Per Justice Borhanuddin), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 49 r/w
The Code of Criminal Procedure, 1898
Sections 35A & 401 r/w
The Penal Code, 1860
Sections 45 ,53 , 57 & 302 r/w
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

An advocate is the integral part of the judiciary that an advocate is not above the law and immune from any criminal proceedings– Article 51 of the constitution of the People’s Republic of Bangladesh, only the President shall not be answerable in any court for anything done or omitted by him in the exercise of the functions of his office– It reveals that specific allegations have been brought against the accused persons. At this stage there is no scope to adjudicate the falsity or truth of the said allegations. It is true that an advocate is the integral part of the judiciary. However, it does not mean that an advocate is above the law and immune from any criminal proceedings. In view of Article 51 of the constitution of the People’s Republic of Bangladesh, only the President of the Republic shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of his office. Appellate Division is of the view that no public importance or interest is involved in the writ petition and same has filed on misconception of law and fact. The High Court Division has proceeded with the matter in a wrong way and thus, issued the Rule and passed the ad-interim order erroneously. Appellate Division has no hesitation to hold that writ petition is not maintainable. .....Government of Bangladesh =VS= Syed Fazle Elahi Obhi, (Civil), 2022(1) [12 LM (AD) 299] ....View Full Judgment

(Writ Petition is maintainable): The writ petition filed by the present appellant is not barred in view of the provision of article 51 of the Constitution. This article, in my opinion gives the President personal immunity from any kind of civil and criminal proceedings during his term of office. This immunity does not debar any aggrieved person to take any proceedings against the decision taken by the Government in view of provision of the 2nd part of the article 51(1). (Para 189, Per Justice M. Enayetur Rahim), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

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.

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.

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.

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.

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.

The government cannot have any break in its continuity:
When an election to national parliament takes place and returned candidates are declared, the framers of the Constitution have incorporated this provision, namely subarticle (3) of Article 56, for appointment of a member of parliament as Prime Minister, so that no break takes place in the continuity of the government. This provision has been incorporated so that even if the parliament does not sit in its first meeting, there cannot be any vacuum in the running of the governance and for such continuity of the government, the President shall appoint the majority leader of the new parliament as Prime Minister, who then shall from his or her cabinet according to her desire in accordance with the relevant provisions of the Constitution. Therefore, it appears that though there may be a break between one parliament and another parliament, the continuity of the government cannot have any break, and even if the Prime Minister becomes disqualified to continue as Prime Minister, he or she will still continue under Article 57 unless and until the next Prime Minister takes upon the office. The tenure of the Minister is also the same as provided by Article 58, in that he/she will also continue to hold office until his or her successor enters upon such office. Therefore, it appears from this chapter of the Constitution, dealing with the executive branch of the State, that the government cannot have any break in its continuity and the framers of the Constitution have nicely balanced different Articles of the Constitution to provide such continuity of the government. .....Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors, (Spl. Original), 19 SCOB [2024] HCD 66 ....View Full Judgment

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.

Even if the Parliament does not sit in its first meeting, there cannot be any vacuum in the running of the government in the country and although there may be a gap between one parliament and another, the continuity of the government cannot have any break: When the election to the Parliament was held and the names of returned candidates were declared, it was incumbent upon the Hon’ble President of Bangladesh to appoint a Prime Minister first, from among the elected members of Parliament who appears to have commanded the support of the majority members. Therefore, when an election to national Parliament takes place and the names of the returned candidates are declared, the framers of the Constitution incorporated the provision of Article 56(3) for appointment of a member of parliament as Prime Minister, to keep run the continuity of the Government so that no break takes place the running of the government. The said provision was embodied in the Constitution even if the Parliament does not sit in its first meeting, there cannot be any vacuum in the running of the government in the country. Although there may be a gap between one parliament and another, the continuity of the government cannot have any break, and even if the Prime Minister becomes disqualified to continue as Prime Minister, he or she will still continue under Article 57 unless and until the next Prime Minister takes upon the office. The tenure of other Ministers is also the same under Article 58 according to which they will also continue to hold office until their successors enter upon such office. .....Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors, (Civil), 19 SCOB [2024] AD 10 ....View Full Judgment

Once the names of elected members of Parliament returned by the Election Commission in the official gazette, it becomes necessary for them to take oath and this necessity arises because of the relevant provisions of the Constitution in order to form a new government. The intention of the legislature is transparent while going through Article 56(3) of the Constitution whereby the President is to have commanded majority support of the members of parliament, as Prime Minister of the country. Therefore, for such appointment of an MP as Prime Minister, the first sitting of the Parliament is not necessary to be held. Rather, it is the discretion of the Hon’ble President to appoint a member as Prime Minister from among the elected members of parliament commanding the support of the majority. In the given circumstances, it is clear that latent intent of the legislature for incorporating the deeming clause under Article 148(3) of the Constitution is to maintain the continuity of the government. .....Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors, (Civil), 19 SCOB [2024] AD 10 ....View Full Judgment

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.

Care-Taker Government–– The Thirteenth Amendment was neither illegal nor ultra vires the Constitution and does not destroy any basic structures of the Constitution. The Republican and Democratic character of the Constitution was no more infringed after the Thirteenth Amendment than it had been before the Non-Party Care-Taker Government system was introduced. However, the system has become unworkable due to the improper exercise of power of the President under Articles 58 C(3), (4), (5) and (6), which led to the unnatural and unconstitutional state of affairs in 2007. In order to avoid recurrence of such a situation, the mode of setting up of the interim Government, by whatever name it may be called, is to be replaced by another system. It is fully within the power of the people to change the system which will serve them and sustain their democratic rights. It has to be borne in mind and that no system can ever be foolproof. Nevertheless, whatever new system is introduced, it will have to be acceptable to the people for it to have durability. .....Abdul Mannan Khan =VS= Government of Bangladesh, (Civil), 2024(1) [16 LM (AD) 122] ....View Full Judgment

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.

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.

"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.

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.

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. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

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.

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.

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.

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

By Article 65 of the Constitution the parliament has been vested with the legislative power of the Republic. The parliament can delegate its power to any person or authority by an Act of parliament, to make orders, rules, regulations, bye-laws or other instruments having legislative effect. From a plain reading of this article it reveals that unless and until the parliament delegates its power to any authority or any department within the limit of the country they cannot make any Rule. Thus, from the aforesaid article it is clear that the parliament is the sole authority to enact a rule or law and the parliament and only the parliament can delegate its powers to any authority to formulate, regulations, or any guidelines. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

As per article 65, it is the absolute power of the parliament to enact law which is completely an independent organ of the State, which consists of the elected representatives of the country. It is well settled that this Court cannot direct the parliament to enact any law. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

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.

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 of pendency 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.

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.

Constitution of Bangladesh, 1972
Article 66(2)(c), 102 r/w
Representation of the People Order, 1972
Article 12, 91E
Pre or post-election dispute, the High Court Division cannot invoke Article 102 of the Constitution. Election Tribunal is the only forum, except on a very limited ground of coram non-judice or malice in law— This Division in several cases relating to ‘election dispute’ in respect of local bodies, parliamentary and presidential decided time and again that the election dispute whether pre or post, pertaining to any election as aforesaid should be brought before the election Tribunal. The matter is well settled. This view finds support in the case of Bangobir Kader Siddiqui vs. Chief Election Commissioner 69 DLR (AD) 411, Dr. Mohiuddin Khan Alamgir vs. Bangladesh 62 DLR (AD) 425, Mahmudul Huq vs Md. Hedayet Ullah 48 DLR (AD) 120, A.K. Maidul Islam vs Election Commission 48 DLR (AD) 208, Shah Alam vs Mujibul Huq 41 DLR (AD) 68 and so on.
An election matter, even when it ensues out of a pre or post-election dispute, the High Court Division cannot invoke Article 102 of the Constitution. Election Tribunal is the only forum, except on a very limited ground of coram non-judice or malice in law. —Appellate Division have found that both the writ petitions have arisen out of election dispute under the Constituency No. 156- Mymensingh-11, where the election is over and the result has already been published in the official gazette. Therefore, the High Court Division has no jurisdiction to proceed with the writ petitions. The aggrieved parties are at liberty to file application before the election Tribunal. .....Mohammed Abdul Wahed =VS= Kazim Uddin Ahmmed, (Civil), 2024(1) [16 LM (AD) 663] ....View Full Judgment

Constitution of Bangladesh
Article 66(2)(d)
Arms Act, 1878
Section 19A and 19 (f)
In view of the findings and decision on the issue of the remaining period of sentence (Isssue No. 6) it is evident that, on the date of his release from jail on 01.06.2006, the incumbent MP (respondent No. 7) had not served out the entire sentence and that he was required to serve out the remaining sentence for another 468 days. There is nothing on record to show that, after his release on 01.06.2006, he was ever taken to jail in connection with the sentence imposed on him in Special Tribunal Case No. 757 of 1999. It follows that as per article 66(2)(d) of the Constitution he was disqualified to be nominated and elected as an MP in the election held on 05.01.2014. It is noted that article 66(2)(d) speaks of conviction for a criminal offence involving moral turpitude. The offence under section 19A and 19 (f) of the Arms Act, 1878 is such an offence. Because in the context our society the nature of the prescribed penalty namely a minimum rigorous imprison of 10 years and 7 years for illegal possession of fire arms and ammunition without licence issued by appropriate authority is an offence against the security of the society at large and also against the state and moral value in general. (Minority view) (Per Mr. Md. Emdadul Huq, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

Constitution of Bangladesh
Article 66(2)
RPO
Article 12(1)(d)
Article 66(2) of the Constitution of the People’s Republic of Bangladesh and the Article 12(1)(d) of the RPO relates to the election disputes triable before the election Tribunal. These factual aspect of the writ petition which discussed above are not admitted rather, it is disputed in different aspect and without taking evidence about the disputed fact of date of release of the respondent No.7 from Jail custody, the calculation of blood donation to the Sandhani and the special remission provided in the Jail Code which is recorded in the history ticket, it cannot be decided in a summary proceeding in the writ petition. (Majority view) (Per Mr. F.R.M. Nazmul Ahasan, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

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) 1.

'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.

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.

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.

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.

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

The MPs elected in the 11th parliamentary election did not sit in the first meeting of the parliament before expiration of the tenure of the last parliament. They sat in the first meeting of the parliament on 30.01.2019 i.e. two days after the expiration of the tenure of the 10th Parliament. Therefore, even though by way of legal fiction they have in the meantime assumed office of members of Parliament, in reality they have not assumed such office until and unless the first meeting of the 11th Parliament was held. This being the position, Appellate Division does not find any substance in the submissions of the learned advocate for the petitioner that on the day the MPs in the 11th Parliament took oath, they assumed the office of MP and as such on that day there were more than 600 MPs in the parliament. In the light of the foregoing discussions this Division finds that the High Court Division rightly rejected the application filed under Article 102(2)(a)(ii)and (b)(ii) of the Constitution of the People’s Republic of Bangladesh by the petitioner in Writ Petition No.609 of 2019. This Division does not find any reason to interfere with the observations of the High Court Division rather this Division is fully in agreement with the same. .....Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad, (Civil), 2024(1) [16 LM (AD) 500] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 79
Sangshad Sachibaloya, Employees and Officers Appointment Rules, 1994
Rule 6(3) (Ka)
It is a settled principle of law that if the appointment is made without following the rules and procedure, no vested right is accrued and since the respondents-writ-petitioners got their respective appointment as a result of irregularities and corrupt practice, they have not therefore acquired any vested right in their service on such illegal appointments. .....Government of Bangladesh =VS= Md. Masud Rana, (Civil), 2023(2) [15 LM (AD) 616] ....View Full Judgment

জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪
Sections 5(1) and 14
The Constitution of Bangladesh, 1972
Article 79
If Appellate Division consider the provisions of sections 5(1) and 14 of the জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪ coupled with above proposition of law, then it would be abundantly clear that the Speaker of the Parliament has been entrusted with all the administrative power of the Parliament Secretariat but at the same time he or she is answerable to the House for his or her conduct and activities relating to "সংসদ সচিবালয়ের যাবতীয় কর্মকান্ড' and, as such, the House in taking the action on the illegal conduct/activities of the Ex-Speaker did not violet any Rules of Procedure of the Parliament or any provision of the Constitution. ––This Division finds merit in all the appeals. Accordingly, all the appeals are allowed. The impugned judgment and order passed by the High Court Division is set aside. .....Government of Bangladesh =VS= Md. Masud Rana, (Civil), 2023(2) [15 LM (AD) 616] ....View Full Judgment

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.

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 & ors., (Civil), 9 SCOB [2017] AD 1 ....View Full Judgment

Constitution of Bangladesh, 1972
Article 83
The Customs Act
Section 30, 25(7) and 79
The valuation Rules, 2000
The importer has to pay tax and duty on the basis of tariff value in force on the date of presentation of bill of entry–– It as well emerged as a general position that when customs duty is imposed for any intention, the authority to do so is the Parliament as Article 83 of our Constitution speaks that "No tax shall be levied or collected except by or under the authority of an Act of Parliament". As such, for the sake of generating revenue, Government is not exempted from following strict rules of laws. Governments too have to earn revenue within the legal scheme established by the State coupled with its citizen’s rights and interest. Procedural fairness too should be observed on the very face of it instead of whim. ––Appellate Division finds no legal infirmity in the impugned judgment and order factually and legally calling for interference by this Court. .....Ministry of Finance, BD =VS= Yahya A. Z. Khondoker, (Civil), 2023(1) [14 LM (AD) 112] ....View Full Judgment

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

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

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 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

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

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.

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

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.

High Court Division Judge­ Function of–decisions of High Court Division Judges become "law" of the land binding upon all whether they are parties to the decision or not­ Difficulty 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.

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

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

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.

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.

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.

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.

The independence of the judiciary, as affirmed and declared by Articles 94(4) and 116A, 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.

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

(“Advocate cannot be read as practicing Advocate): The word “practicing” has not been mentioned anywhere in this Article. According to accepted principles and rules of interpretation, it cannot be presumed that the word “Advocate” as used in the Constitution meant “Practicing Advocate.” To read the word “practicing” before the word “Advocate” in Article 95(2)(a) would mean adding something to the Constitution that is not already there and would amount to replacing the wisdom of the Constitution’s framers, who were elected leaders of our War of Liberation in our nation with our own wisdom. This is completely unacceptable. (Para 296, Per Justice Jahangir Hossain), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

COURT’S ORDER
We, therefore, sum up as under:
(a) The Chief Justice of Bangladesh in exercise of his functions as consultee shall take aid from the other senior Judges of the Supreme Court at least with two senior most Judges of the Supreme Court before giving his opinion or recommendation in the form of consultation to the President.
(b) In the light of the observations made in S.P. Gupta, Ten Judges’ cases, and the article mentioned in paragraph-17, it is evident that in case of appointment of a Judge of the Supreme Court under Articles 95 and 98 of the Constitution the opinion of the Chief Justice regarding legal acumen and professional suitability of a person is to be considered while the opinion of the Prime Minister regarding the antecedents of a person is also to be considered. If divergent opinions from either side of the two functionaries of the state occur the President is not empowered to appoint that person as Judge. The opinion of any functionary will not get primacy over the others.
(c) If any bad antecedent or disqualification is found against any Additional Judge, who is under consideration of the Chief Justice to be recommended for appointment under the provision of Article 95 of the Constitution, it is obligatory for the executive to bring the matter to the notice of the Chief Justice prior to the consultation process starts.
(d) After recommendation is made by the Chief Justice to the President, even if, at that stage it is revealed that antecedent of any recommended candidate is not conducive to appoint him as a Judge under Article 95 of the Constitution, it shall be obligatory for the executive to send the file of that Additional Judge or the person, back to the Chief Justice for his knowledge, so that the Chief Justice can review his earlier recommendation regarding the such candidate.
(e) If the Chief Justice again (2nd time) recommends the same Judge/person for appointment under Article 95, whose antecedent has been placed before him for reconsideration, this Court expects that, the President of the Republic would show due respect to the latest opinion of the Chief Justice. .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

In Article 95(2)(a)&(b) the requisite qualification for being recruited in the higher judiciary as a Judge has been mentioned. Now it is the responsibility of the Chief Justice to select the candidate and to suggest the President in the form of recommendation to appoint them in the higher judiciary. There is ample opportunity for the Chief Justice to select the proper persons having sufficient legal acumen and competence for the higher judiciary. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

The Chief Justice is the key person in forming opinion as to eligibility of persons for appointment in the higher judiciary of our country. Expressing opinion by the Chief Justice thus inevitably forms part of the appointment process of Judges in the higher judiciary. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

By the judgment in ‘ten judges case’ our Supreme Court has already rendered its considered view regarding the binding effect of ‘consultation’ with the Chief Justice by the President in appointing judges in the higher judiciary. Thus, we concede that there is no scope to direct the respondents to formulate guidelines to regulate appointments of judges in the High Court Division of the Supreme Court. This kind of direction to formulate guidelines for appointing the Judges in the higher judiciary shall only undermine the power of the Chief Justice which has been vested upon him by the Constitution itself and by pronouncement of judgment in the ten Judges case as well as Masder Hossain case. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

In the process of selecting the persons for elevation to the High Court Division the Chief Justice may, if feels indispensably necessary consult or share his view with at least two of his senior most brother Judges in the Appellate Division and two of the senior most Judges of the High Court Division as well in forming ‘opinion’ and also to ensure the recommendation appropriate, effective and transparent. After advancing the recommendation expressing opinion by the Chief Justice there should not be any room to disapprove or censure it unless the persons recommended is found by the executive to have an antecedent involving anti-state or anti-social subversive activities. The fate of the recommendation of the Chief Justice expressing opinion should not be sealed and scrapped for no justified reason, in view of observation made in the ‘ten judges case’ by the Appellate Division of our Supreme Court. ...Raghib Rauf Chowdhury Vs Bangladesh & ors, (Civil), 9 SCOB [2017] HCD 34 ....View Full Judgment

(‘has been an advocate’ clarified): On examination of the Annexures-‘A, ‘A-1’ and‘A-2’ it appears that after being enrolled in the High Court Division of the Supreme Court of Bangladesh on 18.06.2000, the writ petitioner stayed in the United Kingdom (UK) until 13.10.2005 on which date the writ petitioner was called to the Bar of England and Wales. Thus, it is evident that after the date of enrolment as an advocate in the High Court Division on 18.06.2000 the writ petitioner stayed in UK for a period of minimum 5(five) years upto13.10.2005. Therefore, the writ petitioner was appointed as an Additional Judge of the Supreme Court of Bangladesh on 13.06.2012 having only 7(Seven) years of practice in the High Court Division which falls short of the necessary requirement for being appointed as a Judge. Apart from this, the writ petitioner did not mention anywhere in the writ petition when he returned back in Bangladesh and started practice as an advocate in the Supreme Court of Bangladesh. Therefore, it is crystal clear that at the time of his appointment as an Additional Judge of the High Court Division on 13.06.2012 the writ petitioner did not have the requisite qualification as per Article 95(2)(a) of the Constitution. In the prevailing situation, the executive was quite in right standing not recommending the appellant for appointment as a permanent Judge. (Para 92, Per Justice Obaidul Hassan, Minority View, supported by Justice Md. Ashfaqul Islam), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

(Writ not maintainable): If we read together the provision of Article 48 and the provision of Article 51 of the Constitution, we find a clear picture regarding the powers and prerogatives of the President of the Republic. The President shall exercise his functions at the advice of the Prime Minister and the advice whatsoever given or not cannot be questioned as well as the action taken by the President is also immuned from being answerable to any Court. Thus, the writ petition of the appellant is not maintainable. Because in the writ petition the petitioner has challenged the action of the President. The appellant-writ-petitioner filed the writ petition challenging his “non appointment under Article 95 of the Constitution” which is totally barred under the provision of Article 51 of the Constitution. (Para 105, Per Justice Obaidul Hassan, Minority View), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

Opinion of the Chief Justice shall have primacy over executive: It is significant to mention here that while recommending a candidate for the higher judiciary, the Chief Justice requires to evaluate the calibre and legal ability of the candidate. Regarding professional attainments, legal soundness, ability, skill etc of the candidate be evaluated only by the Chief Justice in the matter of appointment under Article 95 of the Constitution. However, since the judiciary does not have such mechanism to evaluate the antecedent and background of a candidate, the Chief Justice may not express his/her opinion about the conduct, character and antecedent of the candidate. But the Executive with its sufficient machineries can check the antecedent and background of the candidate and form its opinion on that aspect. If the opinion of the Executive placed before the Chief Justice with all particulars including the conduct, character and antecedent of such candidate, the Chief Justice can evaluate the fitness of the candidate in all aspects. Therefore, in all circumstances, the opinion of the Chief Justice has the right of primacy in appointing the Judges under the provisions of Constitution. If the opinion of the Executive prevails over the opinion of Chief Justice in matters concerning appointment of Judges, then the Independence of Judiciary which is a basic structure of the Constitution as well as the power of strength for all-particularly for the poor, the downtrodden and the average person confronting the wrath of the Government will be a misnomer. (Para 133 & 134, Per Justice Borhanuddin), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

(Opinion of the Chief Justice shall have primacy): It is true that ‘consultation’ was considered in the light of article 116 of the Constitution but, nevertheless the same principle is being applied in the matter of appointment of Judges of the Supreme Court under articles 98 and 95 of the Constitution because without the independence of the Supreme Court there cannot be any independence of the subordinate courts and without consultation and primacy, the separation of judiciary from the executive will be empty words. The principle of consultation with primacy of opinion of the Chief Justice is no longer res-integra and being an integral part of independence of judiciary the same is inherent in the very scheme of the Constitution. There has been unbroken and continuous convention of consultation with the Chief Justice in the matter of appointment of Judges. (Para 261, Per Justice Md. Abu Zafor Siddique), .....A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors, (Civil), 19 SCOB [2024] AD 21 ....View Full Judgment

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 & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

Our conclusion is as under:
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(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 not later than six months of the date of delivery of judgment in exceptional cases.
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(21) 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. …Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

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 & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

The Constitution
Article 96(4)
An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges:
The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. …Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1

A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. …Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

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.

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

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

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

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

Constitution of Bangladesh, 1972
Articles 101 and 102
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

Contract Act
Section 73
Article 102 of the Constitution of the People’s Republic of Bangladesh
We are led to hold that for breach of any of the terms and conditions of the contract in the present case before us, say for example, clause 14 of Annexure-‘C’ to the Writ Petition, the remedy of the petitioner lies in a properly constituted suit in the competent Civil Court for damages under section 73 of the Contract Act. So it necessarily follows that the writ jurisdiction of the High Court Division under Article 102 of the Constitution is not available to him. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104
The facts and circumstances of the case irresistibly lead us to uphold the contention of the contesting respondents that the petitioner was governed by the Rule of Master and Servant. As such the Board of Governors, that is to say, the master had the authority to terminate the petitioner (servant) at any time even before his attainment of 60 years of age as contemplated by clause 14. This is because no servant can be forced upon an unwilling master, for whatever reason it is. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104
It is a truism that no servant is entitled to any prior show cause notice in case of his dismissal, removal, termination etc. by his master. Had the Rule of Master and Servant not been applicable to the case of the petitioner, in that event, he would have been entitled to a prior show cause notice. As the relationship between the petitioner and the Board of Governors of the PDBF was regulated by the Master and Servant Rule, we opine that the Board of Governors did not commit any illegality in terminating the petitioner from the post of the MD without any prior show cause notice. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104 ....View Full Judgment

Administrative Tribunal Act, 1980
Section 10A r/w
Administrative Appellate Tribunals Rules, 1982
Section 7
Constitution of Bangladesh, 1972
Article 102
Penal Code, 1860
Section 166
The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal–Appellate Division is of the opinion that the respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal. The Administrative Tribunal is quite competent to come to a decision about the mode of implementation of its own decisions and orders. In case of failure, the said writ-petitioner-respondent has been given further remedy under section 10A of the Act. ...Government of Bangladesh =VS= Md. Abdul Maleque Miah, (Civil), 2021(2) [11 LM (AD) 12] ....View Full Judgment

Article 102 of the Constitution is not meant to circumvent or bypass statutory procedures:
The legislature made specific provisions in Section 17 of the Customs Act, 1969, Order 4 of the বাংলাদেশ আমদানি নীতি আদেশ, ২০২১-২০২৪, and Section 96 of the Trademarks Act for alternative, effective and equally efficacious remedy to the petitioner for violation of any condition laid down in Section 15 of the Customs Act, 1969 regarding importation of parallel goods. Article 102 of the Constitution is not meant to circumvent or bypass statutory procedures as stated above. When a right is created by a statute, which prescribes a remedy or procedure for enforcing the right, resort must be had to that particular statutory remedy before seeking extraordinary and discretionary remedy under Article 102(2) of the Constitution. Judicial prudence demands that this Court should refrain from exercising its jurisdiction under the said constitutional provision. This is a self-restrained restriction of the High Court Division. ...Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors, (Civil), 17 SCOB [2023] HCD 137 ....View Full Judgment

When a person is entitled to seek remedy in the form of mandamus:
Mandamus is a Latin word which means “We command”. Mandamus is issued to keep public authorities within the limit of their jurisdiction while exercising public functions. It is called a ‘wakening call’ and it awakes the sleeping authorities to perform their duty. It is a judicial remedy in the form of an order of the Court to the government or public authority or Court below to do specific act which they are duty bound to do under the statutory provision of law. Any person who has an interest in the performance of the duty by the authority and they have refused to do the duty following law despite demand in writing are entitled to seek remedy in the form of mandamus. ...Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors, (Civil), 17 SCOB [2023] HCD 137 ....View Full Judgment

When a person is entitled to seek remedy in the form of mandamus:
Mandamus is a Latin word which means “We command”. Mandamus is issued to keep public authorities within the limit of their jurisdiction while exercising public functions. It is called a ‘wakening call’ and it awakes the sleeping authorities to perform their duty. It is a judicial remedy in the form of an order of the Court to the government or public authority or Court below to do specific act which they are duty bound to do under the statutory provision of law. Any person who has an interest in the performance of the duty by the authority and they have refused to do the duty following law despite demand in writing are entitled to seek remedy in the form of mandamus. ...Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors, (Civil), 17 SCOB [2023] HCD 137 ....View Full Judgment

Mere correspondence in the office of ministries concerned, does not fulfil any requirement to make a statutory contract or contract entered into by the Government in the capacity as sovereign, the relief sought by way of writ jurisdiction in the present case is not sustainable. The High Court Division cannot exercise its power conferred under Article 102 of the Constitution where the desire of buying and selling books without tender between the appellants and the present respondent is of inter-ministerial correspondences in nature. Apart from this, without tender and legal approval from the concerned authority, the proposal for buying additional 2317 sets of Dalilpatra would be an act of criminal offence that was realized later by the offices of ministries concerned and subsequently, it had to cancel for avoiding illegality in purchasing additional books in question. Such act of illegal attempt cannot be justified invoking Article 102 of the Constitution in the form of judicial review. .....Bangladesh & ors Vs. Golam Mustafa, (Civil), 19 SCOB [2024] AD 155 ....View Full Judgment

Bangladesh Service Rules, Part-1
Rule 42
Bengal Statue 1781, Bengal Regulation No.1793, Act of 1964, Act of 1865, Act of 1871, Act of 1877 and Act 16 of 1908, Act of 1964
Service (Reorganization and Condition) Act, 1975
Constitution of Bangladesh, 1972
Article 102, 105
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Code of Civil Procedure, 1908
Order XLVII, rule 1
Extra Mohorars— Writ-petitioners are entitled to united grades and pay of scale, equal pay and other benefits of service— The respondents-writ-petitioners invoked writ jurisdiction under Article 102 of the Constitution to protect their rights as Government employees and against hostile and discriminatory action of the appellant-writ respondents as such writ petition is very much maintainable. .....Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan, (Civil), 2024(1) [16 LM (AD) 35] ....View Full Judgment

A writ of certiorari is available in case of violation of the principles of natural justice or where there is an error of law apparent on the face of record:
A writ of certiorari controls all courts, tribunals, and other authorities when they purport to act without jurisdiction, or in excess of it. It is also available in case of violation of the principles of natural justice or where there is an error of law apparent on the face of record. If the Court or executing authority does not perform its obligation in accordance with law, the writ of certiorari may be invoked. In the meantime 12 years have already been elapsed, if this small borrower goes for appeal or revision as embodied in PDR Act itself, it may take another 12 years and it will not yield him any positive, effective and speedy result. Moreover, without being any final decision by the Certificate Officer, it would not possible to take resort of Appeal. Therefore, we hold our view that the writ of certiorari is an appropriate and efficacious remedy in this case in hand. Since the starting of certificate proceeding is not in accordance with law; therefore, the entire proceeding is liable to be quashed to secure the ends of justice. ...Md. Shahin Ikbal Vs. General Certificate Officer & ors, (Civil), 17 SCOB [2023] HCD 168 ....View Full Judgment

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

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

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

The High Court Division may exercise its extraordinary powers under Article 102 of the Constitution if equally efficacious remedy is not available, but bail is not available in certiorari–– It is therefore ordered:
a) Section 3 of the constitution (Seventh Amendment) Act, 1986 (Act 1 of 1986) is herby declared void.
b) Paragraph 19 in the Fourth Schedule to the Constitution is declared void and non est.
c) The trial and conviction of the appellant writ-petitioner by the Special Martial Law Court No.3, Zone-3, Cantonment bazar, Chittagong, in Martial Law Case No. 12 of 1986, is declared illegal and void, however, the trial of the Sessions Trial Case No.10 of 1986, would continue in the concerned Court of Additional Sessions Judge, Chittagong, from the stage it was transferred to the Special Martial Law Court.
d) The privilege of bail is not available on a petition in the nature of certiorari, however, in this appeal, the prayer for bail of the appellant is allowed as an exception, under the inherent jurisdiction of this Court, till the commencement of the trial, to the satisfaction of the concerned trial Court.
The appeal is allowed without any order as to costs. .....Siddique Ahmed =VS= Government of Bangladesh, (Civil), 2023(2) [15 LM (AD) 541] ....View Full Judgment

The disputed question of fact requiring appreciation of evidence is not amenable in writ jurisdiction–– Writ petitioners have sought for direction upon the writ respondents not to demolish the structures situated in the disputed lands. ––The writ petitioners have converted the constitutional Court into an ordinary Civil Court for settling issue of position and possession of the respective plots and as to whether the writ petitioners' plots are situated within the government acquired land or not. Writ petition, involving disputed questions of facts which requires consideration of evidence which is not on record, will not be entertained by the High Court Division in the exercise of its jurisdiction under Article 102 of the Constitution. Writ petition is not proper remedy. The disputed question of fact requiring appreciation of evidence is not amenable in writ jurisdiction and the writ petitioners have ample opportunity to raise contention before the Civil Court. .....Dhaka City Corporation =VS= Salma begum, (Civil), 2023(2) [15 LM (AD) 631] ....View Full Judgment

Admittedly, the petitioner was not provided with any of the reports of either the Enquiry Committee or the Tribunal and, as such, the petitioner was not given an effective opportunity to prefer an appeal against the Syndicate’s decision to demote her which is also a grave violation of the principles of natural justice and, thus, in our view, there is no bar in filing a writ petition under Article 102 of the Constitution against such decision of the Syndicate. ...Samia Rahman Vs. Bangladesh and others, (Civil), 17 SCOB [2023] HCD 182 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 102
বেসরকারী শিক্ষা প্রতিষ্ঠান এর শিক্ষক ও কর্মচারীদের বেতন-ভাতাদির সরকারী অংশ প্রদান এবং জনবল কাঠামো সম্পর্কিত নির্দেশিকা, ২০১৩
Appendix gha (ga)(1) and clause 13
বেসরকারী শিক্ষা প্রতিষ্ঠান (মাদ্রাসা) জনবল কাঠামো ও এমপিও নীতিমালা, ২০১০
Clause 5 and 11
MPO–– Teachers and staffs of the Non-Government School and College could not claim the M.P.O. as a matter of right and as such, direction could not be given unless infringement of legal right or violation of law–– 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. .....Directorate of Madrasa Education, Dhaka=VS=Abdullah Mahmud, (Civil), 2023(2) [15 LM (AD) 89] ....View Full Judgment

The contract entered into by the writ-petitioners and writrespondents is an ordinary commercial contract and the remedy in case of breach of this contract, if any, is available before the civil court and the High Court Division had no jurisdiction to entertain the writ petition.
The question whether the writ-petitioners completely failed to perform their part in the contractual obligations in making the payments in accordance with the terms and conditions as specifically spelt out in the memo dated 09.04.1984 can be decided by a civil court after taking evidence. As the instant case is not maintainable under Article 102 of the Constitution, so the question of the obligations, duties of the parties are not to be dealt with in this forum. We have already discussed in the preceding paragraphs that the issue involves the question of the determination of facts which cannot be decided without taking evidence or examining the parties. ...Ministry of Commerce, Bangladesh =VS= Md. Nazrul Islam, (Civil), 2021(1) [10 LM (AD) 234] ....View Full Judgment

A statute may be declared unconstitutional by the High Court Division exercising its power under article 102 of the constitution only if the statute is inconsistent of the constitution– A statute may be declared unconstitutional by the High Court Division exercising its power under article 102 of the constitution only if the statute is inconsistent of the constitution. Such inconsistency may be of various kinds such as the contravention of a fundamental right. The validity of the subordinate or delegated legislation can be challenged if the same is found to be ultra-vires the enabling or Parent Law. When the delegated legislation is found to be directly or indirectly in conflict with the provisions of the enabling law or Parent Law, it is held to be ultra-vires which are absent in this case. By the impugned amendment extended period of absorption was mentioned only. ...Maves Jasmin =VS= Md. Ruhul Amin-3, (Civil), 2021(1) [10 LM (AD) 241] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 102
বেসরকারী কলেজ শিক্ষক কর্মচারীর বেতনের সরকারী অংশ ও জনবল কাঠামো, ১৯৯৫
Rule 13
The claim of the writ-petitioners is that it is enumerated in clause 5 of the circular dated 19.09.2002 that the teaching staffs of a degree college for every subject shall be at least three and in the college, there are three teachers for each subject including the writ-petitioners out of whom two are getting their salaries under MPO, but the writ-petitioners are not getting it for the illegal, arbitrary actions of the writ-respondents. The writ-petitioners further claimed that the appointments of them have been made in compliance with all the legal requirements and they have accrued a legal right to get their salaries from the Government in the form of MPO. They also claimed that their names were duly forwarded to writ-respondent Nos.1 and 2 for release of the MPO of them under rule 13 of the policy, 1995.
Having gone through the office order bearing Memo No.37.00.000.074.002.001.2014 (part-1) 353 dated 28.08.2018 issued by the Ministry of Education that the government took decision that the 3rd teachers appointed according to the existing rules before 2010 subject to the fulfillment of the conditions of the Jonobal Kathamo, would get the salary of the government portion of MPO. ––It is a disputed question of fact against which the writ-petition in the form of mandamus is not maintainable. The writ-petitioners did not also come with clean hands before the Court of law. ––This petition is disposed of. The judgment and order dated 05.07.2015 of the High Court Division is, hereby, set aside. However, the authority may consider the case of the writ-petitioner in the light of the order dated 28.08.2018. .....Government of Bangladesh =VS= Abdul Karim, (Civil), 2023(2) [15 LM (AD) 94] ....View Full Judgment

The granting of M.P.O. is the policy decision of the Government–– In the case of Government of Bangladesh and others-Vs-Md. Nazrul Islam and others, reported in 27BLT(AD)167, this Division also observed that “In the case in hand the petitioners did not allege that the writ respondents have violated any legal right of them. The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right. This Division is of the view that teachers and staffs of the Non-Government School and College could not claim the M.P.O. as a matter of right and as such, direction could not be given unless infringement of legal right or violation of law.” ––Appellate Division is constrained to hold that the writ-petition filed by the writ-petitioners was not maintainable. .....Government of Bangladesh =VS= Md. Musabbir Mamun, (Civil), 2023(2) [15 LM (AD) 98] ....View Full Judgment

MPO–– Golam Nabi Model Pilot High School, Kaliakoir, Gazipur is a private institution. There are many decisions held by our Apex Court that the writ-petition is not maintainable upon the private institution. So, the answer in respect of maintainability is in the negative that the writ jurisdiction does not lie upon the private body or any institution. In the Result, this Civil Petition for Leave to Appeal is disposed of. The judgment and order dated 15.07.2018 of the High Court Division is, hereby, set aside. .....Golam Nabi Model Pilot High School =VS= Moulana Mohammad Jamal Hossain, (Civil), 2023(2) [15 LM (AD) 151] ....View Full Judgment

Contractual appointment as the Principal of the Centre had been cancelled and he was discharged from the post–– A writ Court cannot and should not decide any disputed question of fact which requires evidence to be taken for settlement–– Our Appellate Division of the Supreme Court in the case of Bangladesh Power Development Board and others Vs. Asaduzzaman Sikder reported in 9BLC(AD)(2000) I wherein it has been held that “A person can invoke writ jurisdiction in breach of contract when (a) the contract is entered into by the Government in the capacity as sovereign, (b) contractual obligation arises out of statutory duty or sovereign obligation or public function of a public authority, (c) a statutory contract, (d) the contract was entered into by the public authority. Invested with a statutory power, (e) the relief sought is against breach of statutory obligation. ––The disputed question of fact cannot be decided in the writ jurisdiction. In the case of Shamsunnahar Salam and other Vs. Mahammad Wahidur Rahman and others reported in 51 DLR(AD) 232 wherein it has been held that “A writ Court cannot and should not decide any disputed question of fact which requires evidence to be taken for settlement.”Similar view has been taken in the case of Nuruddin (Md) Vs. Titas Gas Transmission and Distribution Company Ltd. and others reported in 3 BLD(AD)231.
In the instant case the contract between the parties is neither a constitutional contract nor a statutory or commercial contract and thus, there is no scope to enforce any terms of the contract invoking writ jurisdiction and as such the writ-petition was not maintainable. .....Government of Bangladesh =VS= Mohammad Amirul Islam, (Civil), 2023(2) [15 LM (AD) 210] ....View Full Judgment

The ‘Sitakunda Shrine Committee’ cannot be termed or treated as a local authority or an autonomous body as the said body was not established by any law. It is a management committee of a private body, which is not performing any function in connection with the affairs of the Republic or of a local authority, as such the writ petition challenging the decision of the said private body is not within the ambit of local authority, which cannot be amenable in writ jurisdiction under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the writ petition was not maintainable. ––The judgment and order passed by the High Court Division is set aside. However, the learned District Judge, Chattogram is directed to take immediate steps in accordance with the case of Pijush Kanti Chowdhury vs Sitakunda Shrine Committee and others, reported in 21 BLC (AD) 55 for the formation of the new committee within a period of 3 (three) months from the dated of receipt of this order. .....Sree Chandan Das =VS= Sukhamoy Chakraborty, (Civil), 2023(2) [15 LM (AD) 248] ....View Full Judgment

Abandoned property–– Appellate Division finds nothing in the findings of the High Court Division as to that the tribunal had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts causing prejudice to the complaining party or that it had acted mala fide or in violation of any principle of natural justice. Rather it is observed that Court of Settlement's judgment was on firm basis. This Division is moreso of the view that, the High Court Division was erred in law relying upon a disputed memo dated 31-05-1985 which was shown to have been issued earlier of the Additional Bangladeshi Gazette extraordinary dated 26-01-1988 by dint of which the property was declared as abandoned property. This civil appeal is allowed. The impugned judgment and order of the High Court Division is set aside. .....First Settlement Court =VS= Nazimuddin Bhuiyan, (Civil), 2023(2) [15 LM (AD) 428] ....View Full Judgment

The সড়ক দুর্ঘটনায় আহত ব্যক্তির জরুরী স্বাস্থ্য সেবা নিশ্চিতকরণ ও সহায়তাকারীর সুরক্ষা প্রদান নীতিমালা, ২০১৮ in its entirety be deemed enforceable as binding by judicial sanction and approval pending appropriate legislative enactments incorporating entrenched standards objectives, rights and duties.
The High Court Division directs a wide dissemination of the নীতিমালা through publication variously in the Official Gazette and through electronic and print media as shall serve both public interest and secure a broader objective of social mobilization of views and perception of the necessity of such guidelines as indeed anticipated in Clause 15 of the নীতিমালা Such dissemination shall positively be initiated within a period of 2 (two) months from the date of receipt of a certified copy of this Judgment and Order by the Respondent No. 1, Ministry of Health reflecting preferably all textual amendments as observed upon above by this Court and declare specifically and expressly in its preambular provisions the approval and sanction granted by this Judgment and Order of today’s date clothing the নীতিমালা with legal enforceability up until necessary legislative enactments are brought forth. It is hoped that the নীতিমালা shall henceforth serve as an eulogic ode to Arafat and countless other victims of road accidents whose ultimate sacrifice will not have been in vain but rather have served a higher purpose. Resultantly, the Rule is made absolute with the observations and directions above. Syed Saifuddin Kamal, son of SM Kamal Pasha, of House 419, Road 30, Mohakhali, DOHS, Dhaka- 1206 and another -Vs.- Bangladesh, represented by the Secretary, Ministry of Health, Bangladesh Secretariat, P.S. Ramna, Dhaka and others. (Spl.Original) 2019 ALR (HCD) Online 212 ....View Full Judgment

So far the contention as raised by the learned Advocate for the respondent No.2 regarding the maintainability of the writ petition is concerned, we are of the view that the presence of an alternative remedy is not debarred. The exercise of jurisdiction by the High Court Division under Article 102 of the Constituent, when the proceedings of the Trial Court are absolutely void or where the trial Court purported to act in a judicial capacity which is not properly constituted or where there is error apparent on the face of the record or where the trial Court conclusion is based on no evidence on record whatsoever or where the decision of the trial Court is vitiated by malafide or the trial Court has acted without jurisdiction or acted in excess of jurisdiction or acted contrary to the fundamental principals or acted malice in law interval is called for. Our this also get support from the decision in the case of Fariduddin Mahmud vs. Md Saidur Rahman and Others as reported in 63 DLR (AD) page 93 para 20. .....Mosarrof Hosen and anr Vs. Artha Rin Adalat-1, Dhaka & ors, (Spl. Original), 19 SCOB [2024] HCD 126 ....View Full Judgment

It is now well-settled that the functional test approach enables a judicial review of an ostensibly private body, but which nevertheless performs a public function that aims at benefiting the public at large.
An aggrieved person, in order to agitate his claim/case in judicial review, can do so by invoking Article 102(1) and/or Article 102(2) depending on the nature of the grievance and status of the perpetrator.
When any fundamental right of a person is violated, the remedy provided by Article 102(1) is available to the aggrieved person irrespective of whether the violator is in the service of the Republic or in any local authority or statutory body or even in a private capacity.
The High Court Division held that under our Constitution, the High Court Division has power under Article 102(1) to pass necessary orders to enforce fundamental rights and under Article 44(1), the right to move the High Court Division under Article 102(1) is itself a fundamental right. The position of the High Court Division in respect of enforcement of fundamental rights is the same as that of the Indian Supreme Court with the difference that its decision is not final and is subject to appeal under Article 103 of our Constitution. Thus it is not discretionary with the High Court Division to grant the relief sought for under Article 102(1). Once the High Court Division finds that any fundamental right of a citizen has been violated, it is under a constitutional obligation to grant the necessary relief(s). In the case of the Chairman, Rajdhani Unnayan Kartipakkha (RAJUK)…Vs…A. Rouf Chowdhury and others, 61 DLR (AD) 28, the Appellate Division has clearly held that when any violation of any fundamental right enumerated in the Constitution is alleged as the only ground and no violation of any legal right or law has been alleged whatsoever, only then resort may be had to the fundamental right(s) guaranteed by Part III of the Constitution for protection by the High Court Division. So it is ex-facie clear that when violation of any fundamental right guaranteed by Part III of the Constitution is alleged by any citizen and if he can prove to the satisfaction of the Court that such fundamental right has been infringed, in that event, the Court must pass necessary orders or give directions to the person or authority concerned for enforcement of his fundamental right. There cannot be any deviation whatsoever therefrom. In an unreported decision dated 08.06.2010 passed by the High Court Division in Writ Petition No. 2499 of 2010 in the case of Rokeya Akhter Begum…Vs…Bangladesh and others, it has been held that as far as Article 102(1) is concerned, that is to say, when fundamental rights are relied on, the question of status of the impugned person or authority loses its relevance because the phrase ‘any person or authority’ therein necessarily refers to a person or any authority, irrespective of his/its status. Any decision by such a person or authority, whether he/it is a public functionary or a private one, is reviewable provided, however, that infringement of one of the fundamental rights embodied in Part III of the Constitution is in question. M/S BHIS Apparels Limited represented by its Managing Director, 671, Dattapara, Hossain Market, Tongi, Gazipur, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, BTI Celebration Point, Plot 3 & 5, Road 113/A, Gulshan-2, Dhaka- 1212, Bangladesh and others. (Spl.Original) 2019 ALR (HCD) Online 302 ....View Full Judgment

Constitution of Bangladesh
Article 102 read with
Acquisition and Requisition of Immovable Property Ordinance [II of 1982]
Sections 7 and 8 (d) and (f)
When an amount claimed is not admitted amount or not a statutory amount, the writ under Article 102 of the Constitution is not maintainable.
The writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in L.A. case itself is not maintainable.
The High Court Division observed that the petitioner claimed compensation on different heads is a repetition which gives the High Court Division a clear picture that there is no admitted amount as it has been claimed by the petitioner by that petition. In the decision of Water Development Board vs. Shamsul Haq reported in 51 DLR (AD) 169 Mr. Justice Mostofa Kamal (as his Lordship then was) in clear terms observed that when an amount claimed is not admitted amount or not a statutory amount, the writ under Article 102 of the Constitution is not maintainable. Further it would lead to a deplorable consequence if a tenant under the owner of a land which has been acquired by the government be allowed to put forward any claim under Article 102 of the Constitution. In the decision of Ismail Hossain Poshari and another vs. District Land Acquisition Officer and others 57 DLR (AD) 173 reference of arbitration in terms of section 28 of the Ordinance, 1982 has been spelt out. One can place his grievance, if so advised, under the said section of the Ordinance. On the High Court Division’s own discussions and findings as above the High Court Division is of the view that this writ petition at instance of a ‘tenant’ who is not an owner of the land acquired in L.A. case itself is not maintainable. This writ petition should be discharged only on that score. In the result, the Rule is discharged. Md. Abdul Mannan Miah. -Vs.- Bangladesh, represented by its Secretary, Ministry of Land and others (Spl. Original) 2019 ALR (HCD) Online 151 ....View Full Judgment

The Hon’ble Judges of the Supreme Court having holding the position in serial No. 8 and 9 in the Warrant of Precedence are entitled to get protocol as they are holding the Constitutional Post.
The High Court Division is of the view that, at the present context, it is imperative to give direction upon the concerned per-sons, in particular, the Deputy Commissioners, and the Superintendents of Police and other concerned in the metropolitan cities and all other townships, to provide the requisite privileges to all who have been extended such privileges by virtue of the Constitution, Warrant of Precedence and the laws of this land. Accordingly, the aforesaid persons and all other concerned are directed to continue providing privileges (protocol) without fail, to those who have been extended such privileges (protocol) as per the Warrant of Precedence. Md. Shahinur Rahman, Advocate, Supreme Court of Bangladesh -Vs.- Government of Bangladesh and another (Spl. Original) 2019 ALR (HCD) Online 169 ....View Full Judgment

Any tribunal with limited statutory jurisdiction has no authority whatsoever to ask of itself the wrong question both in law and in fact which would invariably result in its decision being a nullity.
The High Court Division is of that view that the Appellate Division’s dictum above reinforces the common law prescription that any tribunal with limited statutory jurisdiction has no authority whatsoever to ask of itself the wrong question both in law and in fact which would invariably result in its decision being a nullity. In such an instance of a tribunal having mistook the law applicable or given it an interpretation not warranted under the law, the resulting determination, by an application of the O’Reilly vs. Mackman (reported in (1982) 3 All E. R. 1124) test, would only be a purported one wholly beyond the contemplation of the empowering legislation and would, accordingly, be a nullity in law. Ministry of Housing and Public Works -Vs.- The Chairman, First Court of Settlement, Bangladesh Abandoned Buildings, Segunbagicha, Dhaka. and others. (Spl. Original) 2019 ALR (HCD) Online 111 ....View Full Judgment

The Customs Act, 1969
Sections 25(1)(1)(3), 30(1)
The Constitution of Bangladesh
Article 102
In a case where violation of law is challenged the writ is maintainable–– The writ petitioners are regular importer of different items mainly food items. In course of business the each of the writ petitioners decided to import 33.33 Metric Ton of Hilsha fish from Myanmar under the business practice prevalent in Teknaf for an amount of US$ 10,000.00 in favour of Myanmar Economic Bank from Sonali Bank, Teknaf Branch, Cox’s Bazar, Bangladesh under Border Trade Agreement between Myanmar and Bangladesh signed on 18.05.1994. On arrival of the goods the writ petitioners submitted respective bills of entry on 05.03.2006 before the customs authority with all necessary papers through their clearing and forwarding agents for release of the consignments on the basis of transaction value. But, the customs authority rejected the transaction value as described at US$ 300.00 per Metric Ton and imposed US$ 580 per Metric Ton being “minimum assessable value” as determined/recommended by the Value Determination Committee of the Customs House, Chittagong on examination of random selection of the imported goods having found the same as per declaration. The said imposition of value at US$ 580 per Metric Ton, which has no legal basis under the Customs Act 1969. Under the aforesaid facts and circumstances of the case, the writ petitioners, finding no other alternative efficacious remedy, filed the three writ petitions before the High Court Division and obtained Rules. ––In respect of availability of alternative remedy as a bar in filing writ petition it is settled that, in a case where violation of law is challenged, taking recourse to writ jurisdiction is justified i.e. writ is maintainable. In the case of M. A. Haie Vs. Trading Corporation of Bangladesh reported in 40 DLR (AD)(1988) 206 and in the case of United Commercial Bank Karmachari Union Vs. S. M. Shafiul Azam and others reported in 11 BLD(AD)326, this principle has been well founded which is no longer a ‘Res integra’. .....Customs, Excise and VAT Commissionerate, Ctg. =VS= S.M. Abdul Alim, (Civil), 2023(2) [15 LM (AD) 233] ....View Full Judgment

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.

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.

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.

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.

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.

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.

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.

Bangladesh Legal Practitioners and Bar Council Order, 1972
Article 27(3) (b)
The Constitution of Bangladesh, 1972
Article 102(2)
Remove from the office of "Public Prosecutor" of Netrokona District and also cancel the enrolment of writ-respondent No. 5 as an advocate by the Bangladesh Bar Council– Article 102(2) of our Constitution provides the form of relief that may be given by the High Court Division and the jurisdiction under the said Article being essentially an equitable jurisdiction, the Court is not debarred from making consequential order for ends of justice or to do equitable justice– It has already been found that the very enrollment of the leave petitioner as an Advocate with the Bangladesh Bar Council is illegal and without lawful authority in view of Article 27(3) (b) of the Bangladesh Legal Practitioners and Bar Council Order, 1972, subsequent appointment to the post of Public Prosecutor is thus illegal and without lawful authority. As such the directions which were prayed for in the writ petition and granted by the High Court Division while passing the impugned judgment and order are completely consequential orders/directions to make the declaration, i.e. the main relief, a meaningful one in the eye of law. The findings and decision arrived at by the High Court Division being based on proper appreciation of law and fact the same do not call for any interference by this Division. .....Golam Md Khan Pathan =VS= Md Mosharraf Hossain, (Civil), 2022(2) [13 LM (AD) 238] ....View Full Judgment

Writ of mandamus– A writ of mandamus is controlled by equitable principles and can be issued only in favour of a person who comes to the court with clean hands and who is not guilty of fraud or bad faith in respect of the matters in controversy between the parties. It will not be granted where more harm than good will result from its issuance. .....Nadira Huq =VS= Rajdhani Unnayan Katripakkha (RAJUK) , (Civil), 2022(2) [13 LM (AD) 65] ....View Full Judgment

Writ jurisdiction– The letters of credit are merely commercial L/Cs not international L/Cs which is apparent in the absence of any international participation in production or supply of the goods and, as such, the dispute herein being relating to commercial contract cannot be looked into under writ jurisdiction. The parties to the letters of credit are two commercial banks and the beneficiary is another person not the writ-petitioner (respondent No.1 herein) who is a third party, he cannot, under any circumstance, file this writ petition for redress. Hence he does not have any locus standi to challenge the inaction of the L/C issuing bank. Moreover. the writ-petitioner (respondent No. 1 herein), under UCP-600 cannot seek any relief for the cause as mentioned in their writ petitions. Since 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. .....Sonali Bank Limited =VS= Delta Spinners Limited, (Civil), 2022(2) [13 LM (AD) 196] ....View Full Judgment

Review order–– If the main order is to be declared illegal and without lawful authority, then order passed on review is Non-est in the eye of law–– When the writ petitioners challenged the original order of appeal passed by the Member, Land Appeal Board and the writ-petition was maintainable against the said order, the order of review is not at all necessary to be challenged. Because, if the main order is to be declared illegal and without lawful authority, then order passed on review is Non-est in the eye of law. .....Azizul Haque Sarker =VS= Md. Wazed Ali, (Civil), 2022(2) [13 LM (AD) 520] ....View Full Judgment

It is a settled principle of law that civil suit and writ proceedings cannot go together on the same issues and as per mandate of the Article 102 of the Constitution of the People’s Republic of Bangladesh the High Court Division cannot invoke writ jurisdiction if there exists equally efficacious remedy is provided by law. .....Kudrat-E-Elahi(Md.) =VS= Rahela Jakir, (Civil), 2022(2) [13 LM (AD) 525] ....View Full Judgment

An opportunity to apply for the posts relaxing their age–– The respondent nos.1-27-writ petitioners (Writ Petition No.4780 of 2016) and respondent no.1–writ petitioner (Writ Petition No.3452 of 2016) should be given the opportunity to apply for the posts of Junior Executive Officers or any other equivalent or similar posts by relaxing their age. .....Probashi Kallyan Bank, Dhaka =VS= Md. Bazlur Rashid, (Civil), 2022(2) [13 LM (AD) 564] ....View Full Judgment

A service holder may suspend for alleged allegation, such order of suspension cannot continue for unlimited period–– A service holder may suspend for alleged allegation, however, such order of suspension cannot continue for unlimited period. The concerned authority must conclude the inquiry within stipulated time as per the concerned law. The impugned letter was issued on 06.11.2001, now it is 2022, till now the inquiry is pending and writ petitioner-respondent before us is under suspension without concluding the inquiry. Appellate Division finds that the impugned judgment and order of the High Court Division does not call for any interference by this Division. In the result, this Civil Appeal is dismissed. .....Thana Nirbahi Officer, Kaukhali =VS= Maulana A.B.M. Mahiuddin, (Civil), 2022(2) [13 LM (AD) 614] ....View Full Judgment

On perusal of the record, it transpires that the different correspondences took place in the affairs of the inter-ministries about the purchase of 2317 sets of the Dalilpatra without due process of tender. Correspondences of inter-ministries regarding additional sets of the Dalilpatra without tender do not tantamount to any binding agreement between the instant appellants and the respondent and as such, the appellants are under no obligation to buy any book from the respondent. .....Bangladesh & ors Vs. Golam Mustafa, (Civil), 19 SCOB [2024] AD 155
In order to establish legitimate expectation, there must be a commitment which can be characterized as a promise. The root of the principle of legitimate expectation is constitutional principle of rule of law which requires regularity, predictability and certainty in Government’s dealing with the public. .....Bangladesh & ors Vs. Golam Mustafa, (Civil), 19 SCOB [2024] AD 155
Legitimate expectation cannot be based on departmental note as it is seen that the letters communicated amongst the inter ministries, were internal correspondences. It is further claimed that the respondent came to know about the desire of ministry concerned to purchase additional sets of the Dalilpatra, but it was absolutely confidential inter-ministerial communication. A contract can be made to the extent that the terms and conditions between the parties are to be agreed in accordance with law. .....Bangladesh & ors Vs. Golam Mustafa, (Civil), 19 SCOB [2024] AD 155 ....View Full Judgment

Mere correspondence in the office of ministries concerned, does not fulfil any requirement to make a statutory contract or contract entered into by the Government in the capacity as sovereign, the relief sought by way of writ jurisdiction in the present case is not sustainable. The High Court Division cannot exercise its power conferred under Article 102 of the Constitution where the desire of buying and selling books without tender between the appellants and the present respondent is of inter-ministerial correspondences in nature. Apart from this, without tender and legal approval from the concerned authority, the proposal for buying additional 2317 sets of Dalilpatra would be an act of criminal offence that was realized later by the offices of ministries concerned and subsequently, it had to cancel for avoiding illegality in purchasing additional books in question. Such act of illegal attempt cannot be justified invoking Article 102 of the Constitution in the form of judicial review. .....Bangladesh & ors Vs. Golam Mustafa, (Civil), 19 SCOB [2024] AD 155 ....View Full Judgment

Article 102(5) read with Article 152 of the Constitution A writ against private schools is maintainable only when those are either “statutory body” or a “local authority” respectively. .....Tanvir Quader & anr Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 27 ....View Full Judgment

Article 102(5) read with Article 152 of the Constitution and
Sections 3(39) and 3(28) of the General Clauses Act, 1847 and
Registration of Private Schools Ordinance, 1962:
The respondent Nos. 5 and 6 are neither a ‘statutory body’ nor a ‘local authority’ within the meaning of ‘person’ as defined in Article 102(5) read with Article 152 of the Constitution and Sections 3(39) and 3(28) of the General Clauses Act, 1847 but are merely governed by the Ordinance of 1962 as well as the Rules so have been framed thereunder for proper maintenance, administration and supervision of the respective educational institution. .....Tanvir Quader & anr Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 27
Writ of mandamus can be issued only when there exists a legal right and a corresponding legal duty on the part of the executive. .....Tanvir Quader & anr Vs. Bangladesh & ors, (Spl. Original), 19 SCOB [2024] HCD 27 ....View Full Judgment

Article 102 of the Constitution of the People’s Republic of Bangladesh
&
Section 216 (1)(Chha) of the Bangladesh Labour Act, 2006:
We fail to understand how the learned Chairman of the Labour Appellate Tribunal, Dhaka could entertain the appeal of respondent no. 3 in the very first place when, admittedly, there was no judicial order under challenge. In our view, the appeal before the Labour Appellate Tribunal itself was absolutely misconceived and therefore not maintainable at all. ...L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors., 1 SCOB [2015] HCD 16 ....View Full Judgment

Disputed Property–– The writ petitioners in collusion with each other fabricated all those documents and have been claiming interest in the disputed property. Therefore, the writ petitioners-respondents are bound to pay the arrear rents of the spaces used by them in the disputed plot No.7 as claimed by the government, as the government is the owner of the property in question on plot No.7 by operation of law. But the High Court Division most illegally made all the Rules absolute ousting the jurisdiction of the government to claim arrear rents. .....Ministry of Housing and Public Works, BD =VS= Sinku Akramuzzaman, (Civil), 2023(1) [14 LM (AD) 99] ....View Full Judgment

Constitution of Bangladesh
Article 102 r/w
জাতীয় নদী রক্ষা কমিশন আইন, ২০১৩
Declaration and direction–– Appellate Division would like to politely point out that the High Court Division, while passing an unnecessary lengthy judgment, has discussed many extraneous matters having no nexus in deciding the merit of the rule. It has also declared a document executed by the Government to be void ab initio without even examining whether by this document the Government has sold any part within the boundary/ territory of the river. Moreover, it has also exceeded its jurisdiction relating to some directions as discussed. ––The Government must be very cautious about deciding the matter and the Government shall not under any circumstances lease or sale any land within the boundary of river Turag including foreshore areas, or for that matter, any other river of Bangladesh to protect the biodiversity, ecological balance and environment of Bangladesh. ––The Government/concerned authorities must bear in mind that at the time of survey, it shall always start the survery from C.S map and then go to R.S map and not the other way round. ––The rule is disposed of with the observations and directions made in the body of the judgment. .....Nishat Jute Mills Limited =VS= Human Rights and Peace for Bangladesh, (Civil), 2023(1) [14 LM (AD) 210] ....View Full Judgment

Constitution of Bangladesh, 1972
Article 102(2)
জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮
Rules 3 and 5
The High Court Division went beyond the scope of Article 102 of the Constitution, in giving relief beyond the terms of the Rule Nisi–– The High Court Division has delivered the impugned judgment and order basing on the “জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮” by which the earlier Rules of 2000 has been repealed and thereby directed the writ respondent-leave petitioner herein to absorb the writ petitioners-respondents herein as Lecturers in their concerned Government Colleges despite of the fact that the writ petitioners did not make any such claim in the form of prayer in the writ petition asking absorption under the aforesaid absorption Rules of 2018 nor the Rules Nisi were issued at that effect. As such, the High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi in both the writ petitions in giving relief to the writ petitioners while passing the impugned judgment and order. Thus, the finding of the High Court Division is not the correct reflection of the terms of the Rules Nisi and as such the same does not leg to stand in accordance with law. .....Government of Bangladesh =VS= Sk. Md. Abdullah Faruque, (Civil), 2023(1) [14 LM (AD) 232] ....View Full Judgment

The successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies–– After holding written and viva-voce examination the selection committee recommended for appointment of 689 posts of Auditor and the authority duly appointed them. It is true that no formal list of selected candidates has been published to know who have passed in the viva-voce examination, but on perusal of the record as placed before us we are convinced that no illegality has been committed in appointing said 689 persons. ––Merit list as well as different quotas, i.e. Muktijoddha, District and female quota have been filled up in due course. It is the positive case of the appellants that since there were no available posts; there is no scope to appoint the writ-petitioners. Moreover, selection process has already been completed long before and in the meantime about 05(five) years have been already elapsed. .....Office of the Controller General of Accounts =VS= Omar Faruque, (Civil), 2023(1) [14 LM (AD) 331] ....View Full Judgment

MPO–– The granting of MPO is the policy decision of the Government. Therefore the petitioners could not claim the same as of right–– In many cases, this Division held that granting MPO is the policy decision of the Government. It is the government whose decision can solve it enlisting the name of the writ-petitioner in the list of MPO. Unless, such policy decision is made by the Government, no one can claim for his inclusion in the list of MPO as of right and is legally capacitated to invoke writ jurisdiction in the form of Mandamus under Article 102 of the Constitution for a direction upon the authorities concerned. ––Appellate Division is constrained to hold that the writ-petition filed by the writ-petitioner was not maintainable. Therefore, this Division finds merit in the present leave petition. However, it is better to dispose of the same without granting leave as the writ petition was not maintainable. .....Ministry of Primary and Mass Education, BD =VS= Most. Sriti Begum, (Civil), 2023(1) [14 LM (AD) 372] ....View Full Judgment

The cash assistance/incentive of Taka 17 crores by committing fraud upon the Sate and its Central Bank in collusion with Prime Bank–– The salient findings of the High Court Division, in brief, are: BTMA issued certificates for GSP facilities. But the writ-petitioners had used those certificates for receiving cash assistance from Bangladesh Bank through Prime Bank. Therefore, it is evident from the writ-petitioners' own documents that the writ-petitioners had committed fraud in obtaining cash assistance from Bangladesh Bank given through Prime Bank by using certificates which could not have been legally used for the purpose of getting cash assistance. ––As the information/declarations have been found untrue and illegality has been detected by Bangladesh Bank, the writ-petitioners are bound to return the cash assistance according to their own declarations and show cause notices were not necessary. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. .....Bismillah Towels Limited =VS= Bangladesh Bank, (Civil), 2023(1) [14 LM (AD) 381] ....View Full Judgment

Jurisdiction of the Apex Court— It is the settled principle of law laid down by the Apex Court of Various Jurisdictions including this Division by a long line of decisions that the question of jurisdiction cannot be conferred to a court if it is found that the court has no jurisdiction to try the suit/case as the case may be. .....Tahmina Khatun(Most.) =VS= Md. Lutfor Rahman Mollah, (Civil), 2023(1) [14 LM (AD) 458] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 102 r/w
The Contract Act, 1872
Statutory contract–– 31BLD(AD)1[2011], Appellate Division held that writ jurisdiction can be invoked in case of breach of contract when;
(a) The contract is entered into by the Government in the capacity as sovereign;
(b) Where contractual obligation sought to be enforced in writ jurisdiction arises out of statutory duty or sovereign obligation or public function of a public authority;
(c) Where contract is entered into in exercise of an enacting power conferred by a statute that by itself does not render the contract a statutory contract, but ‘if entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory;
(d) Where a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions and the contract so entered by the statutory power then merely because one of the parties to the contract is statutory or public body such contract is not a statutory contract;
(e) When contract is entered into by a public authority invested with the statutory power, in case of breach thereof relief in writ jurisdiction may be sought as against such on the plea that the contract was entered into by the public authority invested with a statutory power;
(f) Where the contract has been entered into in exercise of statutory power by a statutory authority in terms of the statutory provisions and then breach thereof gives right to the aggrieved party to invoke writ jurisdiction because the relief sought is against breach of statutory obligation.
Mere correspondence in the office of ministries concerned, does not fulfil any requirement to make a statutory contract or contract entered into by the Government in the capacity as sovereign, the relief sought by way of writ jurisdiction in the present case is not sustainable. The High Court Division cannot exercise its power conferred under Article 102 of the Constitution where the desire of buying and selling books without tender between the appellants and the present respondent is of inter-ministerial correspondences in nature. Apart from this, without tender and legal approval from the concerned authority, the proposal for buying additional 2317 sets of Dalilpatra would be an act of criminal offence that was realized later by the offices of ministries concerned and subsequently, it had to cancel for avoiding illegality in purchasing additional books in question. Such act of illegal attempt cannot be justified invoking Article 102 of the Constitution in the form of judicial review.
Appellate Division is of the view that the High Court Division made a serious error of law making the Rule absolute. So, this Division is constrained to hold that the writ petition was not at all maintainable under Article 102 of the Constitution. .....Government of Bangladesh =VS= Golam Mustafa, (Civil), 2023(1) [14 LM (AD) 523] ....View Full Judgment

Writ court cannot sit as an appellate forum against the judgment and decree passed by the High Court Division in civil jurisdiction–– Appellate Division is of the view that the decision of competent court of civil jurisdiction shall be final in the case of declaration of title and confirmation of possession as well as classification of the land and the High Court Division under writ jurisdiction cannot sit as an appellate forum against the judgment and decree passed by the High Court Division in civil jurisdiction and if does so that will amount to abuse of the process of law which will create multiplicity of proceedings as well as chance to arrive at a conflicting decision. .....Ministry of Land, Bangladesh =VS= Md. Abdul Malek, (Civil), 2023(1) [14 LM (AD) 557] ....View Full Judgment

In Mujibur Rahman, it is observed that “the right of judicial review under Article 102(1) is neither a fundamental right nor a guaranteed one. And the right of judicial review is neither an all-remedy nor a remedy falls or wrongs. It is available only when “no other equally efficacious remedy is provided by law”. With due respect, these observations have been made unconsciously and therefore, we are unable to approve the same. 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. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

স্থানীয় সরকার (পৌরসভা) আইন, ২০০৯
Paurashava Ordinance, 1977
পৌরসভার কর্মচারী চাকুরী বিধিমালা, ১৯৯২
The Constitution of Bangladesh
Article 102
The High Court Division under Article 102 of the Constitution can pass certain orders and directions as enumerated in the Article but the High Court Division under Article 102 cannot pass any order or direction in a matter of administrative policy of the Government or any policy decision matter. Upgradation of a post described in the Rules, 1992 is a policy decision of the Government. Similarly, promotion is an administrative decision rests upon the higher administrative authority of the concerned department based on requisite qualification and satisfactory service record of the candidates.–– Appellate Division holds that justice would be best served if the impugned judgment and order passed by the High Court Division is modified in the following manner: “Therefore, the respondents are directed to amend the Organogram of ‘A’, ’B’ and ‘C’ category Pourashava creating the post of ‘Chief Assessor’ in light of column 4 under the heading ‘Assessment Section’ of the Rules, 1992.” .....Ministry of Local Government, Bangladesh =VS= Md. Nurul Islam Khan, (Civil), 2022(2) [13 LM (AD) 268] ....View Full Judgment

The Constitution:
Article 102(5) r/w article 117(2)
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. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1

If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1

The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

The Customs Act, 1969
Section 13(1)
Bonded Warehouse License Bidhimala 2008
Bidhi 4, 7, 8 and 9
Constitution of Bangladesh, 1972
Article 102
Home consumption bonded warehouse license–– It appears to us that the High Court Division in one hand directed the writ respondents to convert the provisional bonded warehouse license of the writ petitioner into a regular up to date bonded license, on the other hand it was also directed to consider the case of the writ petitioner in accordance with the applicable law/rules and prevailing practices. These directions of the High Court Division appear to be contradictory. It is true that in writ petition No. 6634 of 2007 judgment was passed on 14.12.2008 but prior to that judgment on 26.06.2008 a Gazette notification was published in order to implement section 13 regarding the issuance of bonded warehouse license. However, the said Bidhimala was not placed before the High Court Division at the time of the disposal of Writ Petition No. 6634 of 2007, thus, the same was not considered by the High Court Division. ––In this particular case, no legal or vested right has been created in favour of the writ petitioner to get the regular home consumption bonded warehouse license in absence of any particular law or rules. .....Ministry of Finance, Bangladesh =VS= Deshbandhu Sugar Mills Ltd., (Civil), 2023(1) [14 LM (AD) 642] ....View Full Judgment

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 Limited vs. Abdur Rashid Miah & ors, (Civil), 3 SCOB [2015] AD 24 ....View Full Judgment

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 & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

Artha Rin Adalat Ain, 2003
Section 41
Constitution of Bangladesh, 1972
Article 102
The petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable– It appears that the judgment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of filing the appeal in time the petitioner manufactured letter dated 26-1-2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two Judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable. .....Oriental Bank Ltd. former Al-Baraka Bank BD Ltd. =VS= A B Siddiq, (Civil), 2022(1) [12 LM (AD) 614] ....View Full Judgment

When judicial review is permissible:
It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. …Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

Warrant of Precedence being arbitrary, irrational, whimsical and capricious is subject to 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 & ors., (Civil), 9 SCOB [2017] AD 1 ....View Full Judgment

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

Constitution of Bangladesh
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

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

Janabal Kathamo Nitimala, 2010 [as amended in 2013]
Section 18(6)
Constitution of Bangladesh, 1972
Article 102
MPO–– Having gone through the provision of section 18(6) of the Jonabal Kathamo, 2010 [as amended in 2013] it appears that there is a restriction imposed by law to withdraw the salary, i.e. the Monthly Payment Order if there are disputes in the internal management of the institution. It has been enshrined in section 18(6) of the Jonabal Kathamo, 2010 that “(৬) প্রতিষ্ঠানের শিক্ষক/কর্মচারী ব্যবস্থাপনা কমিটির মধ্যকার অভ্যন্তরীণ বিরোধের কারনে বা তাদের মধ্যে সৃষ্ঠ মামলার বা অন্য কোন কারনে বেতন-ভাতাদির সরকারী অংশ উত্তোলন সম্ভব করা যাবে না। সংশ্লিষ্ট প্রতিষ্ঠান এর আর্থিক দায়-দায়িত্ব বহন করবে। ” .....Government of Bangladesh =VS= Aruna Rani Sarker, (Civil), 2023(1) [14 LM (AD) 368] ....View Full Judgment

The Bangladesh Passport Order, 1973
Article 10 r/w
Constitution of Bangladesh
Article 102(1)
Return the passport to enable the appellant to get treatment in abroad– Right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of fundamental right conferred by this Part is also a fundamental right under Article 44 of the Constitution. Where a person moves the High Court Division under article 101(1) of the Constitution for enforcement of his fundamental right the writ petitioner is not required to avail of the alternative remedy before any other forum, in the present case before the appellate authority as contemplated under Article 10 of the Bangladesh Passport Order. It may be pointed out that proviso to Article 10 does not provide for any appeal against any order made by the Government and the order of the Secretary is the order of the Government and in that case no appeal shall lie as contemplated in proviso to Article 10 of the Order and the writ petition is quite competent . We, therefore, are of the opinion that the High Court Division was wrong to observe: "We agree with the learned Additional Attorney-general that the reason for impounding the petitioner's passport fits with the provisions of the Passport Order as quoted above". The aforequoted observation of the High Court Division seems to us is totally unfounded in law and misconceived.
We allow the appeal and set aside the judgment and order of the High Court Division. The respondents are hereby directed to return the passport to the appellant immediately. …Hussain Muhammad Ershed =VS= Bangladesh, [8 LM (AD) 23] ....View Full Judgment

Janabal Kathamo Nitimala, 2010 [as amended in 2013]
Section 18(6)
Constitution of Bangladesh, 1972
Article 102
MPO–– Granting MPO is the policy decision of the government–– The writ-petition is not maintainable–– The provision of section 18(6) of the Jonabal Kathamo, 2010 [as amended in 2013] it appears that there is a restriction imposed by law to withdraw the salary i.e the `Monthly Pay Order' if there are disputes in the internal Management of the Institution. In the instant case we have already found that a departmental proceeding was initiated against the writ-petitioner for practicing fraud to delete the name of one Assistant Moulavi Belal Hossain from the MPO sheet. So there is no illegality in stopping the MPO of the writ-petitioner. It further appears that the writ-petitioner did not mention in the writ petition regarding departmental proceeding pending against him and if the writ-petitioner disclosed the fact of departmental proceeding pending against him, then, the result of the Rule might have been otherwise by the High Court Division. However, it is disputed question of fact. Against which writ-petition in the form of mandamus is not maintainable. The writ-petitioner also does not come with clean hand before the Court. .....Government of Bangladesh =VS= Md. Abdul Hoque, (Civil), 2023(1) [14 LM (AD) 392] ....View Full Judgment

Managing Committee of the Recognised Non-Government Secondary Schools Regulations, 1977
Regulations 8(4), 18(2) and 19
Constitution of Bangladesh, 1972
Article 102(2)(a)(i)
It is settled principle of law that the Governing Body or the Managing Committee of Recognized Non-Government School and College is neither a person performing any functions in connection with the affairs of the Republic nor a Local Authority–– The order of temporary suspension has been inflicted by the Governing Body of the college. It is an action of the Governing Body who is neither any person acting in the affairs of the Republic or any statutory public authority nor any local authority. The writ-petitioner was a teacher of an affiliated Non-Government College and as such, an action or inaction is not amenable under writ jurisdiction inasmuch as it is settled principle of law that the Governing Body or the Managing Committee of Recognized Non-Government School and College is neither a person performing any functions in connection with the affairs of the Republic nor a Local Authority. It further appears that the writ-petitioner invoked writ jurisdiction of the High Court Division under Article 102(2)(a)(i) of the Constitution wherein it was enshrined that “The High Court Division, if satisfied that no other equally efficacious remedy is provided by law (a)on the application of any person aggrieved, make an order-(i) directing a person performing any functions in connection with the affairs of the Republic or of a Local Authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do ... ” and as such, the circumstances mandated by and under the Constitution, the action or inaction of the Managing Committee of a Recognized Non-Government School and College is not amenable under writ jurisdiction. ––Chand Mia Molla Degree College, Cumilla being regulated and managed in accordance with the provisions of the Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977 and other provisions and regulations, is not statutory body or local authority.––It is Appellate Division’s considered view that the writ-petition is not maintainable. .....Mijanur Rahman(Md.) =VS= Omar Faruk, (Civil), 2023(1) [14 LM (AD) 385] ....View Full Judgment

Cancelling the allotment of plot due to shortage of her age– The writ petitioner-respondent herein admittedly was ineligible for applying to have a plot of RAJUK. In view of ineligibility of the applicant the question of violation of natural justice does not come to play because no right having been created in favour of the writ petitioner by provisional allotment due to disqualification of her own. Filing an application for allotment of a plot knowing fully well that she was disqualified for applying of a plot without complying with the condition of a prospectus is sheer violation of morality which is otherwise fraud. In view of the facts of the instant case, the allotment was obtained by fraud. The fraud committed by the applicant vitiated the whole process of allotment of the plot. The case law referred by the High Court Division is not applicable in the present case because the facts of the case is quite distinguishable from the present facts and circumstances of the referred case. The allotment of the writ petitioner was void ab initio from its inception. .....Rajdhani Unnayan Kotripakha (RAJUK) =VS= Sharmin Sarah, (Civil), 2022(1) [12 LM (AD) 330] ....View Full Judgment

Mandamus may not be issued where there is no violation of a legal right or violation of a legal or statutory duty by the authority concerned– It is now well settled that when the legal and vested right has not been created in favour of a person, the question of legitimate expectation of such person cannot be raised and no mandamus can be issued. Appellate Division in the case of Hazerullah Vs. Assistant Commissioner, Board of Manage-ment of Abandoned Property [55 DLR (AD) 15], relying on the case of Queen Vs. Guardian of the Lewisham Union, reported in 1897 IQB 498 has held that a person can avail writ jurisdiction by way of mandamus only for enforcement of his legal right or for redress violation of such right. The High Court Division fell into an error in making the Rule Nisi absolute directing the RAJUK to allot a 05 kathas plot to the petitioner. This civil review petition is disposed of. .....Rajdhani Unnayan Karitipakkha (RAJUK) =VS= Dr. Tofail Hoque, (Civil), 2022(1) [12 LM (AD) 374] ....View Full Judgment

Dhaka Municipal Corporation Ordinance, 1983
Section 155 r/w
Dhaka City Corporation Ordinance, 1983
Section 154 r/w
Constitution of Bangladesh
Article 102
Without resorting to the alternative remedy available, the writ petition is not legally maintainable– Section 155 of the Dhaka Municipal Corporation Ordinance, 1983. Section 154 of the Dhaka City Corporation Ordinance, 1983 provides that any person aggrieved by an order passed by the corroboration or any officer in pursuance of the said ordinance or rules or by laws may prefer an appeal to the prescribed authority within the period of limitation and any order passed in the appeal shall be final. If the appellant has got any grievance against the allotment, he could have preferred an appeal but without seeking redress to the proper authority in accordance with law moved the writ petition challenging the allotment. Without resorting to the alternative remedy available, the writ petition is not legally maintainable. In view of the above, the learned Judges of the High Court Division have committed no error of law in discharging the rule nisi. The appeal is therefore, dismissed without any order as to costs. …A.B.M. Asgar =VS= Administrator & Chairman of Allotment Committee, Dhaka, [8 LM (AD) 98] ....View Full Judgment

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

The VAT Act
Section 42(1) (Ka), 42(2) (Ka) r/w
The Constitution of Bangladesh
Article 102
Any person aggrieved by the decision or order passed by the Commissioner, Additional Commissioner or any VAT Official lower in the rank of the Commissioner or Additional Commissioner can prefer appeal to the forum prescribed in the section. In the instant case the writ-petitioner impugned adjudication order dated 15.08.2007 passed by the writ-respondent no.2 Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is an appealable order under section 42(1)(Ka) of the VAT Act and section 42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the time of filing of the appeal. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum created under the law is not maintainable. …Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco Co. Ltd, (Civil), 16 SCOB [2022] AD 84 ....View Full Judgment

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

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

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

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

Constitution of Bangladesh Article 102 and বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০ Section 9 The High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the High Court cannot declare a particular area as "Balumahal" making a particular law i.e. Ain 2010 nugatory or redundant. Thus, in this particular case the High Court Division has traveled beyond its jurisdiction declaring the mouzas in question as "Balumahal". ...Bangladesh & ors Vs. Md. Selim Khan & ors, (Civil), 18 SCOB [2023] AD 36 ....View Full Judgment

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

Grameen Bank Ordinance, 1983
(Amended on 31st July, 1990)
Section 14(1) r/w
Constitution of Bangladesh, 1872
Article 102
Prof. Muhammad Yunus challenged these two orders in Writ Petition No.1980 of 2011 in the High Court Division claiming that he was appointed as Managing Director as per resolution of the Board in accordance with section 14(1) of the Ordinance, that the Grameen Bank Ordinance having not conferred any power upon the Bangladesh Bank to dictate or determine the terms and conditions under which the Managing Director would serve Grameen Bank, the impugned orders are unlawful. 9(nine) Directors of Grameen Bank, the petitioners in Civil Petition No.641 of 2011, moved another petition being Writ Petition No.1891 of 2011 in the High Court Division challenging the aforesaid two letters raising self-same grounds.
That the writ petition filed by 9(nine) Directors is not maintainable on two grounds firstly, they are not 'aggrieved persons' within the meaning of Article 102 of the Constitution and secondly, since the aggrieved person Prof. Muhammad Yunus having challenged the impugned orders himself, they have no locus-standi to challenge the same orders by a separate petition for, if such process is allowed multiplicity of proceedings would crop up and there would be likelihood of conflicting decisions over the same subject matter, in which event, instead of doing justice, the ends of justice would be defeated. The High Court Division declared the Regulations of 2001 being inconsistent with section 14 of the Ordinance invalid. True, a Subordinate law can not supersede the parent law but since no rule was issued in these matters, the High Court Division is not justified in declaring Regulations of 2001 invalid. These petitions merit no consideration which are dismissed with the above observations. ...Professor Muhammad Yunus =VS= Ministry of Finance, BD, [9 LM (AD) 549] ....View Full Judgment

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

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

Mandamus may not be issued where there is no violation of a legal right:
It is now well settled that mandamus may not be issued where there is no violation of a legal right or statutory duty by the authority concerned and that a person can avail writ jurisdiction by way of mandamus only for enforcement of his legal right or for redress violation of such right. ...Bangladesh & ors Vs. Md. Selim Khan & ors, (Civil), 18 SCOB [2023] AD 36 ....View Full Judgment

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

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

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

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

The relief under article 102 of the Constitution being an equitable relief the High Court Division has to cautious while passing the judgment and order so that the relief which it is giving to the parties by the judgment and order is not beyond the terms of the Rule Nisi. ...Bangladesh & ors Vs. Sk. Md. Abdullah Faruque & ors, (Civil), 18 SCOB [2023] AD 54 ....View Full Judgment

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

Constitution of Bangladesh
Article 102 and
Supreme Court (High Court Division) Rules, 1973
Chapter XIA
The High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi:
The person who wants to invoke article 102 must be an aggrieved person and must specify the relief in his prayers. Chapter XIA of the Supreme Court (High Court Division) Rules, deals with preparing and filing of writ petition under article 102 of the Constitution. It provides that the aggrieved person must specifically set out the relief sought for. So, the writ petitioner must have specific claim in the form of prayer against such persons who are respondents, following which the Court can grant relief, if favourable, in accordance with law. In the present cases, the High Court Division has delivered the impugned judgment and order basing on the “জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮” by which the earlier Rules of 2000 has been repealed and thereby directed the writ respondent-leave petitioner herein to absorb the writ petitioners-respondents herein as Lecturers in their concerned Government Colleges despite of the fact that the writ petitioners did not make any such claim in the form of prayer in the writ petition asking absorption under the aforesaid absorption Rules of 2018 nor the Rules Nisi were issued at that effect. As such, the High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi in both the writ petitions in giving relief to the writ petitioners while passing the impugned judgment and order. ...Bangladesh & ors Vs. Sk. Md. Abdullah Faruque & ors, (Civil), 18 SCOB [2023] AD 54 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 102 r/w
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

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

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

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.

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

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.

The Value Added Tax Act, 1991
Sections 42 (2)(Kha)
Customs Act, 1969
Section 196
Constitution of Bangladesh, 1972 Article 102
Non-payment of deposit of 50% of the demand as a precondition for admission of appeal–– Law clearly has made provision for depositing 50% of the demanded amount at the time of filing appeal before the VAT Appellate Tribunal, which is condition precedent. The High Court Division has given gracious relief to the writ petitioner ignoring the proposition of law that the Court should not give benevolent construction of a statue when the provision is plain, unambiguous and does not give rise to any doubt as to its meaning. [Reference: Shyam Sundar and others vs Ram Kumar and another AIR, 2001 (SC) 2472].
When the intention of the legislature is clear, no consideration of expediency or possibility of abuse can be allowed to deviate from the natural consequences following the correct interpretation. Thus, the Court has no jurisdiction to exercise its discretion beyond the scope of law. Appellate Division is of an opinion that the High Court Division committed error of law in passing the impugned judgment and order. .....Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd., (Civil), 2023(1) [14 LM (AD) 623] ....View Full Judgment

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

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.

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

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.

The Constitution of Bangladesh, 1972
Article 102 r/w
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

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.

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

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.

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

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.

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

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.

The Constitution of Bangladesh, 1972
Article 102 r/w
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

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.

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

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.

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

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

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.

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

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.

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

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.

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.

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 Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment

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.

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.

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

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.

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

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.

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

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.

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

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.

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.

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.

Gazette Notification dated 27.09.2009 for establishment of new CNG station–– “১। নতুন সিএনজি স্টেশনের স্থাপনের অনুমোদনের ক্ষেত্রে নিম্নবর্ণিত বিষয়সমূহ যথাযথভাবে প্রতিপালন করতে হবে। (২) শহরের বাহির ও ভিতরে একই সড়কের একই পার্শ্বে একটি সিএনজি ফিলিং স্টেশন থেকে আরেকটি সিএনজি ফিলিং স্টেশনের নুন্যতম দূরত্ব যথাক্রমে ৬ কিঃ মিঃ ও ৩ কিঃ মিঃ। শহরের বাহির ও ভিতরে একই সড়কের বিপরীত পার্শ্বে একটি সিএনজি ফিলিং স্টেশন থেকে আরেকটি সিএনজি ফিলিং স্টেশনের দূরত্ব যথাক্রমে ৪ কিঃ মিঃ ও ২ কিঃ মিঃ হতে পারে।” It is clear that the new address of the writ-petitioner for proposed CNG station is violative of the Gazette Notification dated 27.09.2009. .....Sonar Bangla Service Filling Station =VS= Nasir CNG Filling Station, (Civil), 2024(1) [16 LM (AD) 467] ....View Full Judgment

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.

Regularize the services in the post of Extra Moharar under the revenue setup of the Department of Registration— It is now well settled that Court cannot pass an order to regularize/absorb the temporary, contractual or casual employees under the revenue budget unless there is any statutory provision and thus the respondents’ claim of absorption in the permanent post under the revenue budget on the principle or theory of legitimate expectation has got no legal basis. —The writ-petitioners are not entitled to get any relief as sought for. But at the same time Appellate Division also sympathetically endorse the view of this Division taken in the case of 72 DLR AD (supra) that the incumbent respondents should not be driven out without anything and the government should come forward in this respect in aid of these hapless employees in these days of hardship. It is Appellate Division’s belief that the present respondents should not face displacement without recourse. .....Ministry of Law, Bangladesh =VS= Md. Saiful Islam, (Civil), 2024(1) [16 LM (AD) 592] ....View Full Judgment

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.

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.

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.

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.

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.

Writ petition which involved disputed question of fact– Which can only be resolved by taking evidence– Whether or not the work had been completed by the writ petitioner-respondent herein in accordance with the work order can only be certified by the authority who issued the work order. Whether or not the work had been completed is a matter of fact. From the materials referred to by the High Court Division it appears that in fact the work had not yet been completed. Hence it is clearly a disputed question of fact which can only be resolved by taking evidence. In the summery writ jurisdiction the High Court Division cannot delve into disputed question of fact. Appellate Division is of the view that the High Court Division fell into error in entertaining the writ petition, which involved disputed question of fact. The end result of making the Rule Nisi absolute relying on materials, which in fact do not support the claim of the writ petitioner, is patently erroneous. In such view of the matter the impugned judgement and order of the High Court Division is set aside. ...Government of Bangladesh =VS= Md. Ali Akbor, (Civil), 2021(2) [11 LM (AD) 392] ....View Full Judgment

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.

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.

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.

Value Added Tax Act, 1991 (VAT Act)
Section 55
Constitution of Bangladesh, 1972
Article 102(2)
When the entire action of the VAT authority appears to be illegal, mala fide and arbitrary on the face of the record, invoking article 102 of the Constitution, under such circumstances, without preferring statutory appeal, is no bar. Thus we are view that the High Court Division correctly held that the writ petition was maintainable and accordingly disposed of the matter. But the disposal in respect of asking the appellant to pay VAT and supplementary duty for the period from February, 2012-2013 to October, 2013-2014 is not in accordance with law.
Thus it is clear that since there is violation of law and fundamental right of a citizen in charging VAT and supplementary duty (SD) giving retrospective effect beyond the provision of law and since there is violation in demanding such duty/tax it cannot be said that the writ petition was not maintainable. These two civil appeals are allowed without any order as to costs. ...British American Tobacco Bangladesh Company Ltd. =VS= NBR, [10 LM (AD) 257] ....View Full Judgment

Article 102 of the Constitution of the People’s Republic of Bangladesh
&
Section 216 (1)(Chha) of the Bangladesh Labour Act, 2006:
We fail to understand how the learned Chairman of the Labour Appellate Tribunal, Dhaka could entertain the appeal of respondent no. 3 in the very first place when, admittedly, there was no judicial order under challenge. In our view, the appeal before the Labour Appellate Tribunal itself was absolutely misconceived and therefore not maintainable at all. ...L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors., (Civil), 1 SCOB [2015] HCD 16 ....View Full Judgment

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.

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.

Writ of Certiorari:
The High Court Division exercising power while dealing with the Writ of Certiorari does not work as a Court of Appeal and as such it is not required to make determination of facts on its own. It can interfere with the findings of a Court of facts under its extra-ordinary jurisdiction under Article 102 only if it can be shown that the Court has acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts causing prejudice to the petitioner or it has acted malafide or in violation of the principle of natural justice. ...Md. Mahbubur Rahman Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 18 ....View Full Judgment

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.

Locus Standi:
We find that that the petitioner Samity does not have any locus-standi to move the writ petition to ventilate the causes of its aggrieved members since it is not a public purpose, rather the purpose for the benefits of individual members of the samity who have individually bought the land and thereafter formed the samity, and as such, we do not find the instant Rule maintainable. ...Md. Hafizur Rahman Vs. Secretary, Ministry of Public Works and Ors., (Civil), 1 SCOB [2015] HCD 73 ....View Full Judgment

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.

Aggrieved person:
For a person to seek remedy under the writ of certiorari he must show that he is aggrieved by an act done or proceeding taken which the High Court Division may declare to have been done or taken without lawful authority. There must be a nexus between such person’s grievance and the act or proceeding that is under challenge inasmuch as the person must be aggrieved by the act or proceeding under challenge. ...Marrine Vegetable Oil Ltd & Anr Vs. Petrobangla, (Civil), 1 SCOB [2015] HCD 94 ....View Full Judgment

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.

Constitution of Bangladesh
Article 102
Bangladesh Post Office (Gazetted and non-Gazetted Posts) Recruitment Rules, 1985
Post Office Manual, 4th Part, Part-I, II and III
Rule 3
When both the laws, namely: the Manual and the Rules, 1985 were in force and the postal department opted to take recourse to the provisions of the Manual and continued the process of selecting the candidates and in the process, the writ-petitioners were selected and listed as qualified candidates and were registered, accordingly, it cannot be said that they were taken in the register of qualified candidates illegally.
The Appellate Division opined that after listing the respective writ-petitioners as qualified candidates in the register, they were given temporary work orders against temporary as well as permanent post, it does not lie in the mouth of the respondents that the writ-petitioners had no right to be appointed in the posts against the permanent vacancies for which they were listed as qualified candidates on the plea that the Rules, 1985 were promulgated in the meantime, so they could go for direct recruitment under the said Rules and they rightly invited applications through the impugned circulars published in the various newspapers. Government of Bangladesh and others -Vs.- Md. Abdul Karim and others (Civil) 2019 ALR (AD) Online 337 ....View Full Judgment

Article 102 (2)(a)(ii) of the Constitution of the People’s Republic of Bangladesh &
Section 6(5) of the Artha Rin Adalat Ain, 2003:
In the event of execution of a decree for realization of decretal amount the court shall proceed with the property of the borrower first and then the property of the third-party mortgagors. ...Abul Hossain Khan & anr Vs. Artha Rin Adalat, Barguna & Ors., (Civil), 1 SCOB [2015] HCD 110 ....View Full Judgment

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.

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

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.

The above conduct of the petitioner, as to non-disclosure of pendency of the representation before the Board, clearly suggests that he attempted to suppress the said fact before this Court and obtained this Rule by misleading the Court for which he deserves to be penalised. An aggrieved person, who wishes to come to this Court for seeking any remedy, must come with clean hands without attempting to hide any fact inasmuch as this Court in exercising the jurisdiction under Article 102 of the Constitution carries out its duty as an extra ordinary forum, unlike the other ordinary Courts. This Court, in essence, is an equity Court, for, the State has provided this provision in the Constitution for adjudication upon the bonafide claims of the citizens who will not have any forum, including civil Court, tribunal or a quasi-judicial body, for vindication of their rights. If a citizen seeks to abuse the said provision, this Court not only turns down his petition, but also penalises him. ...Khademuzzaman Vs. Bangladesh & ors, (Civil), 2 SCOB [2015] HCD 62 ....View Full Judgment

Now it is well settled that the power of the High Court to issue an appropriate writ under Article 102 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and lethargic. If there is inordinate delay on the part of the Petitioner in filing a Writ Petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustice. ...Msaharaf Hossain Vs. Dhaka City Corp. & others, (Civil), 2 SCOB [2015] HCD 70 ....View Full Judgment

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.

The writ petition is not maintainable on two counts,- firstly, due to the reason that the dispute arose out of simple commercial contract and not out of statutory contract and secondly, there is no scope to avail writ jurisdiction as there is an equal efficacious alternative forum to settle the dispute through amicable settlement under clause 54.1, adjudication under clause 54.2 and arbitration under clause 54.3 of section 3 of the GCC between the parties. ...Mark Construction Ltd Vs. Chief Engineer, REB & ors, (Civil), 3 SCOB [2015] HCD 37 ....View Full Judgment

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

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.

Constitution of Bangladesh
Article 102 and 42 And
অর্পিত সম্পত্তি প্রত্যর্পণ আইন, 2001:
It is a settled proposition of law that an aggrieved party may invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution straightaway provided the action impugned is malafide, even though there may be an alternative remedy available for him. Since we have found that the inclusion of the case property in ‘Ka’ Schedule of the Gazette Notification dated 06.05.2012 as a vested property is malafide, the instant writ petition, as we see it, is maintainable. Besides, it has been clearly, categorically and unequivocally held in the decision in the case of the Government of Bangladesh represented by the Ministry of Works and another…Vs…Syed Chand Sultana and others reported in 51 DLR (AD) 24 that the writ-petitioners can come directly to the High Court Division for protection of their fundamental right, even though an alternative remedy is available. So our definite finding is that the petitioners can come directly to the High Court Division for protection of their right to property as contemplated by Article 42 of the Constitution of Bangladesh, even though an alternative forum, that is to say, অর্পিত সম্পত্তি প্রত্যর্পণ ট্রাইব্যুনাল is available for necessary legal redress. ...Manabendra Chakrabarty & ors Vs. Bangladesh & others, (Civil), 3 SCOB [2015] HCD 52 ....View Full Judgment

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.

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.

Doctrine of the legitimate expectation ensures the circumstances in which, the expectation may be ensured or denied and among others the following grounds may also be taken in order to get a remedy under article 102 of the Constitution:- firstly there must be a promise or assurance from the employer or the authority that the incumbent would be assimilated at the end or during the tenure of his service; secondly - the past practice of "আত্মীকরণ" for other persons of similar status has been followed consistently. ...Md. Fazlul Hoque Vs. BIWTC, (Civil), 3 SCOB [2015] HCD 143 ....View Full Judgment

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.

It is a settled proposition of law that the Writ Court cannot direct the authority to promote the petitioners to the posts of Director of the Commission; but they have the right to be considered for promotion in accordance with Regulation 6 and the schedule of the Service Regulations of 2002. ...Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors, (Civil), 4 SCOB[2015] HCD 42 ....View Full Judgment

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.

Value Added Tax Act, 1991 (VAT Act)
Section 42(4), 55(1)
The Constitution of Bangladesh, 1972
Article 102(2)
Statutory forum provided in the statute which was competent to decide all questions of fact and law– From the demand cum show cause notice it is apparent that an adjudication process was initiated and the respondents sought time in writing to reply and thus the process awaiting adjudication. Against the adjudication order, forum of appeal is prescribed in the VAT Act. At this juncture, the writ petitions filed by the respondents as petitioners are not maintainable. The High Court Division lost sight of the pending adjudication process as such the impugned judgment and orders are not tenable in law. Article 102(2) of the Constitution provides that the High Court Division may give direction or orders under the Article where there is no other equally efficacious remedy provided by law. In view of the timeframe prescribed in section 42(4) of the VAT Act it cannot be said that the remedy under section 42 of the Act is not efficacious. Though the respondents had adequate remedy under the VAT Act which they could avail of but the respondents did not avail the statutory forum provided in the statute which was competent to decide all questions of fact and law. .....Ministry of Finance, Bangladesh =VS= Pragati Insurance Ltd., (Civil), 2022(1) [12 LM (AD) 309] ....View Full Judgment

Constitution of Bangladesh
Article 102
The Arbitration Act, 2001
Section 7
Restriction of judicial intervention in matters covered by arbitration agreement:
In the present case, clause 19.2 of the contracts dated 16.01.2008 entered into between the petitioner and the BPDB contains an arbitration clause stating that the arbitration shall be conducted in accordance with the Arbitration Act (Act No. 1 of 2001) of Bangladesh as at present in force and the place of arbitration shall be in Dhaka, Bangladesh, therefore, section 7 of the Arbitration Act, 2001 restricts judicial intervention in matters covered by arbitration agreement. Petitioner is trying to interpret the contract in the writ petitions which is impermissible, particularly when the petitioner is having a remedy to go for arbitration under the contract signed by the petitioner. Petitioner having signed contract with open eyes after reading the terms and conditions, it is unconscionable to raise these kinds of contention in the writ petitions. ...Energy Prima Ltd. Vs. Bangladesh & ors, (Civil), 8 SCOB [2016] HCD 84 ....View Full Judgment

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.

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.

Indeed, under our Constitutional scheme an aggrieved person, in order to agitate his claim and case in judicial review, can do so by invoking Article 102(1) and/or (2) depending on the nature of the grievance as well as of status of the perpetrator. Article 102(1) comes into play in relation to the infringement of any fundamental right guaranteed under Part III of the Constitution. Article 102(2) presupposes the availability of the various Writs that may be appealed to for reviewing actions and operations in the public domain, such actions being otherwise the preserve of the Executive organ of the State affecting the citizenry in their contacts and dealings with the Executive and its functionaries. ...Moulana Md. Abdul Hakim Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 71
The emerging judicial consensus in this jurisdiction as noted earlier is that Article 102(a) (ii) allows for identifying amenability to judicial review not exclusively by reference to an obvious derivative public status of a person but increasingly by the public domain within which it operates and prevails irrespective of its derivative status. The ever increasing reality of public-private partnership of providing services to the public at large and in regulating public activity has blurred the traditionally held view that a Writ in Certiorari, in particular, under Article 102(2) can only validly be addressed to public functionaries. This traditional view indeed risks being exposed as fallacious as it belies the fact that public functionaries in the strictest sense have in reality long forsaken their perceived monopoly over public affairs and that private and public enterprise and endeavour are inextricably intertwined in the conduct of business of the Republic or of a local authority. ...Moulana Md. Abdul Hakim Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 71
Viewed from a different perspective, the postulation here, therefore, is that even given the truism that private persons or bodies generally do not have an overreach in the public realm, it cannot, however, be gainsaid that they never do, and in instances they do so there indeed remains the possibility of their treading on constitutional guarantees and arriving at erroneous and arbitrary decisions while performing a “public function” and unwarrantedly so. Such function could ideally have as its objective the granting of some collective benefit in the public realm. The complexities of social or economic enterprise in the public realm create opportunities for private bodies to strike a partnership with the public sector to keep the wheels of commerce and service delivery well-oiled and operational. Allowance is, therefore, made for private bodies and individuals to assume a hybrid character in discharging responsibilities in the public interest. ...Moulana Md. Abdul Hakim Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 71 ....View Full Judgment

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.

Any dispute whether that relates to acceptance or non-acceptance of the candidature of the particular candidate should be brought for a decision before a election Tribunal as election dispute. ...Bangobir Kader Siddiqui, Bir Uttom Vs. CEC & ors., (Civil), 10 SCOB [2018] HCD 84
In election matter, even when it ensues out of a pre-election dispute, this Division cannot invoke Article 102 of the Constitution, election tribunal is the only forum, except on a very limited ground of corum non-judice or malice in law. The discipline of law in this sphere that has been taken a positive shape drawing it’s inspiration from the constitution and the consisting judicial pronouncements should not be disturbed in any manner. ...Bangobir Kader Siddiqui, Bir Uttom Vs. CEC & ors., (Civil), 10 SCOB [2018] HCD 84 ....View Full Judgment

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.

The concept of “due process of law” involves two distinct elements. The first element imposes a mandatory duty upon the Authority concerned to appraise the person of the charge or offence for which a proceeding is being initiated against him. Not only that, judicial pronouncements have gone to the extent to hold that even the proposed punishment must be indicated to the person concerned at the very initial stage. The second element requires that the person, who is so charged, should be afforded an opportunity to file a reply/representation to the Authority in respect of the said allegation or charge. Non-compliance or non-observance of the second element is bound to give a “telling blow” to any subsequent action of the Authority. ...Farhana Akhter Liza & ors. Vs. The Islamic University & ors., (Civil), 10 SCOB [2018] HCD 92
In matters of disciplinary proceeding taken by the University against delinquent students, it has been unequivocally endorsed and upheld by the Courts that the principle of natural justice shall apply in each and every case. In other words, every student has a right to be heard and to make a representation to the authorities before any decision is taken against such student. ...Farhana Akhter Liza & ors. Vs. The Islamic University & ors., (Civil), 10 SCOB [2018] HCD 92 ....View Full Judgment

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.

Writ Court is also a Court of equity. It is a settled proposition of law that one who seeks equity must come with clean hands. In this case, the petitioner’s hands being unclean and dirty can not invoke the writ jurisdiction of the High Court Division. ...Md. Mahbubur Rahman Vs. Bangladesh and Others, (Civil), 10 SCOB [2018] HCD 104 ....View Full Judgment

Locus Standi of the Petitioner & maintainability of the Rule.––
The issues being raised in the instant writ petition by the petitioner involves grave public injury as well as invasion on the fundamental right to life of the victim guaranteed under the Constitution. Accordingly, it has sought protection of this Court, the guardian and custodian of the Constitution of the People’s Republic of Bangladesh, for violation of the said right by filing application under Article 102 of the Constitution for the bereaved poor family members of the 4 years old boy named Jihad who died by falling into an uncovered deep tube well pipe of Bangladesh Railway situated at Shahjahanpur Railway Colony. As such, it cannot be said that the petitioner has no locus standi on the issue in question. In other words, this Rule is maintainable so far the locus standi of the petitioner Foundation is concerned. ...Children’s Charity Bangladesh Foundation (CCB Foundation) Vs Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 117
In an action of negligence the affected person must affirmatively prove negligence but may find hardship in cases where the aggrieved person can prove the accident, but cannot show how it happened, the fact being solely outside his knowledge and within the knowledge of the other party who causes it. In such cases, it is sufficient for the aggrieved person to prove the accident and nothing more, for, there is a presumption of negligence according to the maxim “res ipsa loquitur” (the thing speaks for itself). Such presumption arises when the cause of the mischief was apparently under the control of the other person or his servants. The accident itself constitutes reasonable evidence of negligence in the particular circumstances. ...Children’s Charity Bangladesh Foundation (CCB Foundation) Vs Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 117 ....View Full Judgment

VAT Act, 1991
Section 42(1)(Ka), 42(2)(Ka)
Customs Act, 1969
Sections 82, 98, 196
Constitution of Bangladesh, 1972
Article 102(2)
Under Article 102(2) of the constitution bypassing the appellate forum provided under the law is not maintainable–– The writ-petitioner impugned adjudication order dated 15.08.2007 passed by the writ-respondent no.2 Assistant Commissioner, Customs, Excise and VAT Division and other impugned orders passed by other officials are appealable order under section 42(1)(Ka) of the VAT Act and section 42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the time of filing of the appeal.
When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum provided under the law is not maintainable.
The writ petitioners may prefer appeal before the appropriate authority and they may consider the prayer for condonation of delay if the same is so filed. All the appeals are allowed. The judgment and order dated 29.03.2006 passed by the High Court Division in Writ Petition Nos.3942 of 2005, heard analogously with Writ Petition Nos.3943, 3944, 3945 and 5217 of 2005 are hereby set aside. .....Customs Excise & VAT Commissionerate =VS= Syed Nurul, (Civil), 2024(1) [16 LM (AD) 512] ....View Full Judgment

Article 102 of the Constitution of the People’s Republic of Bangladesh, Article 51 of the United Nations Convention against Corruption:
Bangladesh has a duty under international law, as laid out in Article 31 of the UNCAC, to confiscate the proceeds of crime. Article 51 of the UNCAC makes the return of assets which are proceeds of crime a fundamental principle of the UNCAC. ...Professor M. Samsul Alam Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 205
The corrupt cannot be allowed to live handsomely off the profits of their crimes while millions of law-abiding citizens work hard to earn a living. ...Professor M. Samsul Alam Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 205
2003 till 2006 the respondents No. 4 and No. 5 had set up a corrupt scheme to illegally obtain gas exploration rights in Bangladesh. Based on the undisputed facts, we find that the JVA and GPSA have been procured by corruption and thus render them void ab initio. The rights and assets of the respondent No. 5 in Block 9 PSC, for which respondent No. 5 was found to be the least qualified of seven bidders in 1997, have also been obtained through this corrupt scheme and are thus being seized and confiscated as proceeds of crime as well as to provide compensation for the 2005 blowouts. ...Professor M. Samsul Alam Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 205 ....View Full Judgment

The issue whether under Article 102(1) judicial review of a decision of authority relating to terms and conditions of service of a person serving in the Republic is maintainable is no longer a res integra. Bangladesh vs. Sontosh Kumar Saha, 21 BLC (AD) 94 relied. ...Md. Nur Hossain & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 299
Equality before Law:
There shall be no discrimination to persons within the same class and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. All who are equal are equal in the eye of law which means that it will not accord favoured treatment to persons within the same class. The concept of equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike.
Bangladesh vs. Sontosh Kumar Saha, 21 BLC (AD) 94, Jibendra Kishore Achary vs. Province of East Pakistan, 9 DLR (SC) 21, Sheikh Abdus Sabur vs. Returning Officer, 41 DLR (AD) 30 and Indira Gandhi vs. Raj Narayan, AIR 1975, (SC) 2279 relied. ...Md. Nur Hossain & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 299 ....View Full Judgment

For Article 102 (2) to be attracted however the petitioner must be aggrieved by an action of a person performing functions “in connection with the affairs of the Republic”, or local authority or statutory body and he should be without any other alternative remedy or redress . The remedy sought by the petitioner is simply a direction on the Respondent No. 1 for inspecting the petitioner’s factory and publishing the findings in its website. If the petitioner’s factor is unsafe and not fit in any way then the Respondent No. 1 has nothing to loose. The petitioner cannot seek remedy from the Civil Court or any other forum in the form of a direction since there is no contractual relationship with the respondent No. 1. Similarly an action for defamation also will not serve any purpose since the petitioner wants the Respondent No. 1 to publish the accurate condition of its factory. Thus to compel the Respondent No. 1 to inspect its factory and publish the findings in its website the petitioner does not appear to have any other alternative remedy. In such view of the matter therefore this Rule is also maintainable under Article 102 (2). ...Liberty Fashion Wears Limited Vs. Bangladesh Accord Foundation & ors., (Civil), 12 SCOB[2019] HCD 1 ....View Full Judgment

Exhaustion of efficacious remedy provided by law: How far it bars the invocation of the writ jurisdiction, Liberal interpretation of Equality before law;
There is a constitutional bar to the invocation of the writ jurisdiction of the High Court Division under Article 102(2)(a) of the Constitution, if there is any other equally efficacious remedy provided by law. ...Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 24 ....View Full Judgment

If any impugned action is wholly without jurisdiction in the sense of not being authorized by the statute or is in violation of a constitutional provision, a Writ Petition will be maintainable without exhaustion of the statutory remedy. Besides, on the ground of mala fides, the petitioner may come up with a Writ Petition bypassing the statutory alternative remedy. It is well-settled that mala fides goes to the root of jurisdiction and if the impugned action is mala fide, the alternative remedy provided by the statute need not be availed of. ...Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 24
Equality before law” is not to 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 qualities and characteristics which some of them may possess but which are lacking in others. The term “equal protection of law” is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. ...Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 24
When a case can be decided without striking down the law but giving the relief to the petitioners, that course is always better than striking down the law.” ...Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 24 ....View Full Judgment

Article 102 of the Constitution of the People’s Republic of Bangladesh, Article 66 of the Constitution of the People’s Republic of Bangladesh Public Interest Litigation, Election Commission;
It follows that the petitioner can very well seek a remedy under article 102 (2) (b) (ii), of course subject to the condition that no other efficacious remedy is available to him. In seeking a remedy under clause 102(2)(b)(ii), he does not have to be an aggrieved person for filing this case. (Minority view) (Per Mr. Md. Emdadul Huq, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

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

The underlying principle of a writ of quo warranto, as interpreted by the Supreme Court of India and as quoted above, is clearly the same as enshrined in clause 102(2) (b) (ii) of our Constitution. Under this clause, “any person” can file an application and this court can, upon such an application, exercise the jurisdiction a writ of quo warranto. The applicant is not required to be “an aggrieved person” as opposed to the requirement of clause (1) and (2) (a) of article 102 under which a public interest ligation may be filed. In such a case the duty of this court is to hold an inquiry on the allegation and to arrive at a decision keeping in view of the legal and factual issues. (Minority view) (Per Mr. Md. Emdadul Huq, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39
The reply to this principal issue depends upon decisions on the issues on (1) the deduction of prejudgement custody period of 143 days as claimed by him, (2) the period of sentence served out by him, (3) the remission permissible to him on various counts clamied by him and (4) the remaining sentence, if any. The discussion, findings and decision on those matters i.e. on issues Nos 1-6 show that no disputed questions of facts are involved on those 4(four) matters and the related issues. (Minority view) (Per Mr. Md. Emdadul Huq, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

As regards the first ground, it may be stated that if the purpose of the writ petition was only to challenge the election of the appellant on the alleged ground of his being a defaulter then we would have felt no hesitation to declare at once that the writ petition was not maintainable. Indeed, we have already held while rejecting CPSLA No.21 of 1988 (quoted in the affidavit-in-opposition) that “such questions as to disqualification, etc. which are questions of fact are better settled upon evidence which can be done more appropriately before a Tribunal. In the summary proceeding under Article 102 it is not desirable and, more often than not, not possible to record a finding as to a disputed question of fact.” As regards the first ground, it may be stated that if the purpose of the writ petition was only to challenge the election of the appellant on the alleged ground of his being a defaulter then we would have felt no hesitation to declare at once that the writ petition was not maintainable. Indeed, we have already held while rejecting CPSLA No.21 of 1988 (quoted in the affidavit-in-opposition) that “such questions as to disqualification, etc. which are questions of fact are better settled upon evidence which can be done more appropriately before a Tribunal. In the summary proceeding under Article 102 it is not desirable and, more often than not, not possible to record a finding as to a disputed question of fact.” (Majority view) (Per Mr. F.R.M. Nazmul Ahasan, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

It is now a well settled proposition of law that if there is efficacious and alternative remedy is available, a writ petition under Article 102 of the Constitution is not maintainable. Admittedly it has been raised whether Article 125 of the Constitution puts a bar in the instant case in hand. Admittedly as per the aforesaid provision of law there is a legal bar questioning the result of the election declared by the commission except following the provisions of RPO. In the present case in hand it appears that the petitioner in the disguise of Article 102 of the Constitution trying to enforce the provisions of RPO. In the present case in hand it further appears that the question as raised by the petitioner regarding certain declarations made by the respondent No.7 before the Election Commission which is completely a dispute to be resolved by the competent authority as provided in the Represented People Order (RPO). (Majority view) (Per Mr. Md. Abu Zafor Siddique, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

We are of the opinion that for the limited purpose of enforcement of any of the fundamental rights as guaranteed by Part III of the Constitution, an indigenous company like the petitioner-company, whose shareholders and directors are all Bangladeshi citizens, is a ‘citizen’ of Bangladesh. This interpretation, as we see it, is in perfect accord with the intention of the framers of the Constitution and the tone and tenor of Article 102(1) of the Constitution. ...M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors., (Civil), 13 SCOB [2020] HCD 1 ....View Full Judgment

Writ of Certionary: Maintainability;
It is well settled that in writ certiorari this Division would be loath to interfere with a decision of a Tribunal in specific, if the same is not a perverse one or a gross miscarriage of justice has been done.
A writ of certiorari is maintainable only in a case where erroneous decision within it jurisdiction. Even if there is mere error of law that will not confer any power on the High Court Division to issue a writ of certiorari except where there is an error apparent on the face of the record, that means, the error must be something more than a mere error. The High Court Division can issue writ of certiorari only if it can be shown that the judgment has been obtained by fraud, collusion or corruption or where the tribunal has acted contrary to the principles of natural justice or where there is an error apparent on the face of the record or where the tribunal’s conclusion is based on no evidence whatsoever or where the decision is vitiated by malafide. ...Abdur Rahman & ors. Vs. Judge (District Judge) Arpita Shampparrti Prattarpan Appellate Tribunal, Brahmanbaria & ors., (Civil), 14 SCOB [2020] HCD 24 ....View Full Judgment

This is a writ in the nature of mandamus. A direction has been sought by the petitioner upon the respondent No. 3. Let us have a clear idea what constitution has mandated under Article 102(2)(a)(i) :- It says “on the application of any person aggrieved, make an order- (i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority, to refrain from doing that which he is not permitted by law to do or to do.” The writ of mandamus as enshrined in the Constitution enjoins how in a given situation authority should act in accordance with law. This is the elementary principle of writ mandamus. …Spice Television Private Ltd Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 1 ....View Full Judgment

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

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

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

Penal Code, 1860
Sections 302/34
Constitution of Bangladesh, 1972
Article 103(2)(b)
Commuted from death to imprisonment for life with get benefit of section 35A of the Code of Criminal Procedure– Article 103(2)(b) of the Constitution granted automatic right of appeal to the appellate Division in all death sentence cases– The Criminal Appeals being Criminal Appeal No.45 of 2012 and 48 of 2015 and Jail Petition No.15 of 2012 are dismissed. However, the sentences of the appellants Iqbal Hossain, Joynal Abedin and Zakir Hossain are commuted from death to imprisonment for life and to pay fine of tk.5,000/- each, in default, to suffer rigorous imprisonment for 15 days more. They shall get benefit of section 35A of the Code of Criminal Procedure. The Criminal Petition for Leave to Appeal No.366 of 2017 is disposed of. The judgment and order of conviction so far the same relates to accused Zaman is concerned is set aside. He is acquitted of the charge. He may be released from custody if not wanted in connection with any other case. ...Iqbal Hossain =VS= The State, (Criminal), 2021(2) [11 LM (AD) 159] ....View Full Judgment

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.

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.

Constitution of Bangladesh, 1972
Article 103 (2) r/w
Transfer of Property Act, 1882
Section 55
It is settled that when a finding of fact is based on consideration of the materials on record, those findings are immune from interference by the revisional court except there is non-consideration or misreading of the materials evidence on record. It has now been conclusively settled that the third court cannot entertain an appeal upon question as to the soundness of findings of fact by the second court. If there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final. Since the learned subordinate Judge came to finding of facts regarding title of the suit land and possession of the parties as well as dispossession based on assessment of evidence on record and the High Court Division upheld the finding upon re-assessing the evidence on record, the matter does not call for any interference. .....Abdus Daiyan Khan @ Babul(Md.) =VS= Abdur Rouf Bhuiyan(Md.) , (Civil), 2022(2) [13 LM (AD) 145] ....View Full Judgment

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

Power of Complete Justice u/a 104 of the Constitution:
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. …State Vs. Nurul Amin Baitha & another, (Criminal), 11 SCOB [2019] AD 13 ....View Full Judgment

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.

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.

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.

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.

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.

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.

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.

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.

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.

Bangladesh Environment Conservation Act, 1995
Section 6 (Uma)
Constitution of Bangladesh
Article 104
Protection of environment– The subject matter of the instant case not only represents an occasion to, but also demands, exercise of this power by this Division for the avowed purpose of protection of environment. Madhumati Model Town project in Bilamalia and Bailarpur Mouzas is declared unlawful and Metro Makers are directed to restore the wetlands of these two mouzas to its original state within six months from the date of availability of the certified copy of the judgment, failing which, RAJUK is directed to undertake the work of restoration of these wetlands and recover the cost of restoration from Metro Makers and their directors treating the cost as a public demand. Though the third party purchasers may not be treated as bona fide, yet it is a fact that they have been roped in by Metro Makers by misrepresentation that permission for the development work had been obtained from RAJUK and justice demands that they should be compensated. (Per Syed Mahmud Hossain, J). ...Metro Makers and Developers Limited =VS= BELA, (Civil), 2021(2) [11 LM (AD) 261] ....View Full Judgment

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

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

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

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

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

Partition of the suit land– We are inclined to exercise our power under Article 104 of the Constitution. We are of the opinion that the ends of justice will best be served if we allot saham to the appellant but only to the extent of 39 decimals land. Hence, the Advocate Commissioner is directed to allocate saham to the appellant as follows:
4 decimals land in the southernmost portion of plot No.833, 8 decimals land in the southern part of the west bank of the pond within plot No.805, 13 decimals land from the southern bank of the pond within plot No.805 and 14 decimals land from the pond within plot No.739. The appeal is allowed in part with modification of saham given to the appellant. ...Sadhan Chandra Baidya =VS= Parshuram Pilot High School, (Civil), 2021(1) [10 LM (AD) 79] ....View Full Judgment

Period of limitation extension– 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(Md.) =VS= Grameen Phone Ltd., (Civil), 2021(1) [10 LM (AD) 49] ....View Full Judgment

Complete Justice– 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 05 April, 2021 stands extended till 31st August, 2021.
It is further ordered that petitions filed before the Virtual Benches of the High Court Division must be filed before the appropriate regular Bench by 31st August, 2021, in default any interim order passed by the Virtual Benches shall stand vacated and all petitions filed before the Virtual Benches shall be deemed to have been dismissed. ...Ministry of Finance, Bangladesh =VS= Ali Karam Reza, (Civil), 2021(1) [10 LM (AD) 296] ....View Full Judgment

Administration of the Deity and its property (Tarapur Tea Estate)– We have decided to invoke our extra-ordinary power under article 104 of the Constitution. The administration of the Deity and its property are to be administered by a democratically elected Management Committee. The First Management Committee is to be formed following the guide lines mentioned herein below:
(1) 1(one) representative of highly respectable Hindu residents of Sylhet town to be nominated by the Deputy Commissioner, Sylhet.
(2) 1(one) elected Hindu Commissioner/ Councilor from the Syelhet City Corporation, if any, to be nominated by the Mayor of Sylhet City Corporation. If such person is not available, the Mayor of Sylhet City Corporation shall nominate any Hindu resident of Sylhet town who is of high social standing and good reputation.
(3) 1(one) elected Hindu member of Zila Parishad, Sylhet District , if any, to be nominated by the Chairman of Zila Parishad, Sylhet. If no such person is available, the Chairman of Zila Parishad, Sylhet shall nominate any highly respectable Hindu resident of Sylhet.
(4) Principal, Sree Chaitanya Cultural Society (CCS).
(5) 1(one) Hindu representative from the District Bar Association, Sylhet to be nominated by the Executive Committee of said District Bar Association.
(6) 1(one) Judicial Officer preferrably from Hindu Community, of District and Sessions Judge Court, Sylhet “Judgeship” including Magistracy to be nominated by the District Judge, Sylhet.
(7) Shebait of “Sree Sree Radha Krishno Jieu” shall be ex officio member of the Management Committee. The Deputy Commissioner, Sylhet in consultation with the 10(ten) leading Shebaits or priests of the different temples of Sylhet town shall appoint Shebait of the Deity.
(8) 1(one) representative from Hindu Teachers of Shahjalal University of Science and Technology, Sylhet to be nominated by the Vice Chancellor of the said University.
(9) 1(one) representative from the descendants of Baikuntha Chandra Gupta, if available, to be ascertained and nominated by the Deputy Commissioner, Sylhet.
(10) 1(one) Hindu Officer from District Police Administration, Sylhet to be nominated by the Superintendent of Police, Sylhet, if not available, any Hindu responsible officer from Sylhet District.
(11) 1(one) representative from Jugaltila Akhra Committee, Sylhet.
The members of the Management Committee shall hold the office for a period of 5(five) years. The Management Committee shall be reconstituted at the end of every 5(five) years. ...Abdul Hye =VS= Ministry of Land, Bangladesh, (Civil), 2021(1) [10 LM (AD) 342] ....View Full Judgment

Sessions power seized– Appellate Division is of the view that Ms. Musammat Qumrunnahar in granting bail to accused Aslam Shikder has acted in patent violation of the order of this Court. This Division holds that Ms. Musammat Qumrunnahar is not fit to preside over any criminal matters. Hence, in exercise of our power under Article 104 of the Constitution, the Sessions power of Ms. Musammat Qumrunnahar is hereby seized. Henceforth Ms. Musammat Qumrunnahar will not preside over any criminal matters in any Court of law in Bangladesh. ...The State =VS= Aslam Shikder, (Criminal), 2021(2) [11 LM (AD) 144] ....View Full Judgment

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.

Bangladesh Rifles (Special Provisions) Ordinance, 1976 (BDR Ordinance)
Sections 6, 8, 9
Constitution of Bangladesh, 1972
Article 104
The established principle of law in this regard is that, even where there is an ouster clause barring court’s jurisdiction, court still possesses authority to examine whether the concerned authority followed the procedures established in any Act or law. In addition, as the Apex Court of the land Appellate Division is empowered to do anything for doing “complete justice” under Article 104 of the Constitution of Bangladesh. ––The procedure mentioned above i.e. frame of charges, specifying therein the penalty proposed to be imposed, communicating it to the accused, requiring him to show cause within a specified time, giving an opportunity of being heard in person were not followed. As such, our considered view is that, writ is very much maintainable and as procedure established by were not followed the impugned discharge order is vitiated and worth of declaring without lawful authority. .....Ministry of Home Affairs, Bangladesh =VS= Md. Golam Mostafa, (Civil), 2023(1) [14 LM (AD) 86] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 104
The Limitation Act, 1908
Section 5
It is simply a fault of the engaged Counsels of the appellant. It is an established principle of administration of justice that parties should not suffer for the laches and negligence of their engaged Advocates– It is found that the cost amount was paid as directed within stipulated time, however, the present appellant failed to produce before the High Court Division the documents manifesting payment of sum. It is simply a fault of the engaged Counsels of the appellant. It is an established principle of administration of justice that parties should not suffer for the laches and negligence of their engaged Advocates. Appellate Division decides to condone the delay of 11 days and consider the Civil Petition for Leave to Appeal at least for doing complete justice in exercise of its power under Article 104 of the Constitution. The appeal is allowed without any order as to cost. The earlier judgment of this Division is reviewed. The impugned judgments and orders of the High Court Division dated 06-07-2003 and 22-08-2004 treating the Rule is discharged and refusing its recalled the said order respectively are hereby set aside. The High Court Division is directed to hear the motion on merit. .....Deputy Commissioner, Gazipur =VS= Md. Idris Ali, (Civil), 2022(2) [13 LM (AD) 56] ....View Full Judgment

Artha Rin Adalat Ain, 2003
Section 12(3)
Constitution of Bangladesh, 1972
Article 104
The High Court Division discharged the Rule but referred the matter to Anti-Corruption Commission for taking appropriate steps against the bank officials and auction purchaser who were involved in fraud and collusion in holding auction and sale of the mortgaged property– Considering the facts and circumstances, our considered view is that without putting the parties in further litigations both in civil and criminal as indicated above, end of justice would best be served if we dispose of the matter finally. Accordingly, the following orders and directions are given:
1. The bank shall return the auction money to the auction purchaser writ-respondent No. 7, that is, an amount of Taka 5,35,00,000.
2. The bank shall accept Taka 4,75,00,000 as deposited by the writ petitioner-respondents against the amount claimed by the bank, that is, to the tune of Taka 4,74,33,727.79.
3. The sale deed No. 11302 dated 25-11-2015 executed by the bank in favour of the auction purchaser writ-respondent No. 7 is declared to be void.
4. The Title Suit No. 622 of 2017 pending in the First Court of Joint District Judge, Dhaka shall stand dismissed.
5. The bank shall return the title documents of the writ petitioners to them which they deposited in the bank.
6. The observations made by the High Court Division regarding fraud and collusion and the direction to the Anti-Corruption Commission to take steps against some officials of Jamuna Bank Ltd. and auction purchaser shall be set-aside. .....Denim Attires Ltd. =VS= Iffat Obaid, (Civil), 2022(1) [12 LM (AD) 243] ....View Full Judgment

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. …Firoza Noor Khan and others Vs. Raisa Aziz Begum and others, (Civil), 14 SCOB [2020] AD 115 ....View Full Judgment

Khas Mohal property of the Government, Complete Justice;
Any property owned by the Government is the property of the People’s of the Republic of Bangladesh and the citizens of this country are the actual owners of such property. Therefore, no one can dispose of valuable Government properties at his/their sweet will to anyone else unlawfully. …Firoza Noor Khan and others Vs. Raisa Aziz Begum and others, (Civil), 14 SCOB [2020] AD 115 ....View Full Judgment

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

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

The Artha Rin Adalat Ain, 2003
Sections 47, 50(2)
The Constitution of Bangladesh
Article 104
A writ petition does not lie against the judgment and decree passed in an artha rin suit– We consider it a fit and proper case to invoke article 104 of the Constitution to interfere with the respective decree of the Adalat passed in the respective suit so far as it relates to allowing the claim of the plaintiff-Bank more than 200% over the principal amount for doing complete justice. And accordingly, we invoke the said power and these appeals are disposed in the following terms:
Defendant-respondent No.1(the writ-petitioner) is directed to pay the admitted principal loan amount of taka 4,68,000˙00X3 =14,04,000˙00 in connection with Artha Rin Suit No.364 of 2004 and taka 1,20,577˙53X3=3,61,732˙59 in connection with Artha Rin Suit No.351 of 2004 to the plaintiff-Bank.
The defendant shall also pay interest on the principal loan amount from the date of filing of the suit upto date as per provision of section 50(2) of the Ain, 2003. The respective decree passed in the respective artha rin suit stands modified accordingly. ...Rupali Bank Ltd. =VS= Md. Shamser Ali, [10 LM (AD) 28] ....View Full Judgment

VAT Act, 1991
Section 13
VAT Rules, 1991
Rule 31A, 38
Constitution of Bangladesh, 1972
Article 104
A Statute which takes away or impairs any vested right acquired under existing law, is always deemed to be prospective. The general rule being that without a clear indication from the wording of a statute, the statute is not to receive retrospective effect– On perusal of the concerned parent act, rules and the aforementioned delegated legislations our considered view is that the Annexure-E(4)is inconsistent with provisions spelled out in the parent Act and Rules. At the same time the impugned explanation is the true and exact expression of what enacted in the parent Act and Rules. In addition, it is a revenue generating issue of the state. Public and higher State interest cannot be defeated for the sake of misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, Appellate Division opines that this Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the national interest.
Considering the vagaries of legal proceedings and the technicalities involved in adjudication, Art 104 of the Constitution has invested, as a measure of abundant caution, the last Court of the country with wide power, so it may forestall a failure of justice and do complete justice in an appropriate case. It is an extraordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before this Court. Appellate Division finds that the impugned judgment and order of the High Court Division do call for interference. In the result, the Civil Petition for Leave Appeal is disposed of. Impugned judgment and order of the High Court Division is set aside without any order as to cost. .....National Board of Revenue(NBR), Dhaka =VS= BSRM Steels Ltd., (Civil), 2022(2) [13 LM (AD) 246] ....View Full Judgment

It is a revenue generating issue of the State. Public at large and higher State interest in no way be overpowered on the authority of some misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, Appellate Division opines that this Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the nation itself. .....Ministry of Finance, Bangladesh =VS= Confidence Cement Ltd., (Civil), 2022(1) [12 LM (AD) 229] ....View Full Judgment

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

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

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

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), 5 SCOB [2015] AD 1 ....View Full Judgment

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), 5 SCOB [2015] AD 1 ....View Full Judgment

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), 5 SCOB [2015] AD 1 ....View Full Judgment

Article 104 of the Constitution which authorizes the Appellate Division to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it.
The Appellate Division held that such provision has been incorporated in the Constitution to meet situation which cannot be effectively and appropriately tackled and such power of this Division is not circumscribed by any limiting words. The Appellate Division can grant relief where any manifest illegality or palpable injustice is shown to have resulted. Functions of the Appellate Division is largely governed by its endeavour to ensure that justice has been done. This Division plays a balancing act for protecting the litigants from unnecessary harassment. Denim Attires Ltd. -Vs.- Iffat Obaid and others (Civil) 2019 ALR (AD) Online 107 ....View Full Judgment

Relief under Article 104 of the Constitution of Bangladesh. The Appellate Division further considered view is that without putting the parties in further litigations both in civil and criminal as indicated above, end of justice would best be served if the Appellate Division dispose of the matter finally. Accordingly, the following orders and directions are given: 1. The bank shall return the auction money to the auction purchaser writ respondent No. 7, that is, an amount of tk. 5,35,00,000/-. 2. The bank shall accept tk. 4,75,00,000/- as deposited by the writ petitioner-respondents against the amount claimed by the bank, that is, to the tune of tk. 4,74,33,772.79/-. 3. The sale deed No. 11302 dated 25.11.2015 executed by the bank in favour of the auction purchaser writ respondent No. 7 is declared to be void. 4. The Title Suit No. 622 of 2017 pending in the First Court of Joint District Judge, Dhaka shall stand dismissed. 5. The bank shall return the title documents of the writ petitioners to them which they deposited in the bank. 6. The observations made by the High Court Division regarding fraud and collusion and the direction to the Anti Corruption Commission to take steps against some officials of Jamuna Bank Ltd. and auction purchaser shall be set aside. Denim Attires Ltd. -Vs.- Iffat Obaid and others (Civil) 2019 ALR (AD) Online 107 ....View Full Judgment

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.

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.

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.

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.

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.

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.

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.

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

The Constitution of Bangladesh, 1972
Article 105 r/w
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

Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
Section 10(1)
Evidence Act, 1872
Section 106
Penal Code, 1860
Section 302
Code of Criminal Procedure, 1898
Section 35A
Constitution of Bangladesh, 1972
Article 105
Demand of dowry by the petitioner father of the deceased Aklima has not been established by any reliable evidence— Sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. He is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life— After recording the evidence of the prosecution witnesses and on consideration of the same along with other materials on record the learned Judge of the Nari-O-Shishu Nirjatan Daman Bishes Adalat found the petitioner Raju Ahmed guilty of the charge and thereby awarded death sentence to him under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 by the judgment and order dated 26.06.2002 passed in Nari-O-Shishu Nirjatan Daman Case No.218 of 1997 arising out of Nawabganj Police Station Case No.3(1)97. —After hearing the parties and on consideration of the materials on record and the evidence of the witnesses the High Court by the judgment and order dated 12.02.2006 accepted the death reference and dismissed the criminal appeal and jail appeal filed by the appellant-petitioner. Being aggrieved by the aforesaid judgment and order dated 12.02.2006 passed by the High Court Division the petitioner forwarded a jail petition through Senior Jail Super, Central Prison, Dhaka to the learned Registrar of this Division which was registered as Jail Petition No.8 of 2010. This Jail Petition No.8 of 2010 was taken up for hearing along with Civil Appeal No.116 of 2010, Criminal Petition No.374 of 2011 and Jail Petition Nos.18 of 2008, 3 of 2009, 1 of 2010, 16 of 2010, 2-3 of 2011, 5 of 2012 and 7-8 of 2012. Ultimately by the impugned judgment dated 05.05.2015 this Division dismissed the Jail Petition No.8 of 2010 filed by the petitioner and allowed the civil appeal in part and disposed of Criminal Petition No.374 of 2011, Jail Petition Nos.18 of 2008, 3 of 2009, 16 of 2010, 2-3 of 2011. But other Jail Petition being Nos.1 of 2010, 5 of 2012 and 7-8 of 2012 were directed to be heard separately.
In the absence of any explanation by the petitioner in this case the High Court Division as well as this Division rightly arrived at the conclusion to make the petitioner liable for killing his wife Aklima. But so far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code. —He is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk.1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. .....Raju Ahmed @ Raja Mia =VS= The State, (Criminal), 2024(1) [16 LM (AD) 643] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
The Penal Code, 1860
Sections 302/34 or 302/109
It is established principle of law that a judgment of the apex Court is final on both questions of law and of fact. It is precedent for itself and for all the Courts subordinate to it and the finality of the judgment cannot be impinged on. In the case in hand leave was granted in Review Petitions and thereafter criminal appeals were filed which are now under consideration in the instant judgment. As per provision of Article 105 of the Constitution of the People’s Republic of Bangladesh and Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this Division is competent enough to reconsider or interfere with its earlier decision to prevent abuse of its process and to cure gross miscarriage of justice. ––The trial Court as well as the High Court Division and this Division by majority committed illegality misreading the evidence. In view of the reasons stated hereinabove, Appellate Division is of the view that the judgment and order dated 10.09.2014 passed by this Division with majority view dismissing the appeals and thereby convicting the accused-appellants was not justified and, therefore, the same is reviewed and all the criminal appeals arose from the Criminal Review Petitions No.68, 73,74 and 89 of 2017are allowed. .....Shamsu Habib alias Biddut =VS= The State, (Criminal), 2023(1) [14 LM (AD) 422] ....View Full Judgment

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

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

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

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

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

Constitution of Bangladesh
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI
The core question for consideration is whether there is error apparent on the face of the record which calls for interference of the impugned judgment. It is an established jurisprudence that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only against patent error of law. Where without any elaborate argument one could point to the error and say that here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions to be entertained about it, a clear case of error apparent on the face of the record would be made out. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the Court. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

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

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

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.

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.

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.

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.

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.

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.

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.

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

Trade Mark Act, 2009; Section 2(12), 100
Trade Mark Rules, 2015 Rule 10, 14, 15 and 50(1)
Supreme Court of Bangladesh (High Court Division) Rules, 1973
Constitution of the People’s Republic of Bangladesh; Article 107(1)
Code of Civil Procedure Order XLI Rule 1, Order XLIII Rule 2
Limitation Act, 1908 (1st Schedule) Section 5, 29(2) and Article 156
Since Bangladesh Supreme Court (High Court Division) Rules, 1973 does not prescribe any time limit for preferring appeal before the High Court Division against the order passed by the Registrar under the Act, 2009 as such, the time frame as prescribed in Rule 50(1) of the Rules of 2015 is applicable. ...Kazi Md. Kamrul Islam Vs. Registrar, Dep. of PDTM & ors, (Civil), 18 SCOB [2023] HCD 1 ....View Full Judgment

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

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

Constitution of Bangladesh, 1972
Article 108, 112, 103(2)(C) r/w
Contempt of Courts Act, 2013
Section 2(3), 2(6), 2(8)
Contempt of Court— Appellate Division is concerned in the instant case relates to violation and disobedience of the Court’s order, which in essence means lowering the dignity of the Court or making comments calculated to undermine public confidence in the judges and the justice delivery system. —The contemnors-respondents are hereby exonerated from the charge of contempt of court. Appellate Division strongly caution that in future not only the present contemnor-respondents but also all the authorities, executive and judicial, in the Republic shall be careful to ensure the compliance of the judgment and order of both the Divisions of the Supreme Court in totally. .....Md. Nurunnabi Bhuiyan =VS= Md. Abdullah Al Masud Chowdhury, (Civil), 2024(1) [16 LM (AD) 80] ....View Full Judgment

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.

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.

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

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

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

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.

Money Laundering Protirodh Ain, 2012
Section 31(2)
The Constitution of Bangladesh, 1972
Article 111
Whenever any Act was amended or repealed by any Ordinance the Legislature continued giving effect of the previous law as if the previous law has not been repealed– It appears that whenever any Act was amended or repealed by any Ordinance the Legislature continued giving effect of the previous law as if the previous law has not been repealed. Thus, the offence committed by the accused petitioner between 19-12-2005 to 16-1-2008 being with in the period of continuation of the aforesaid law which were amended/repealed subsequently by different Ordinances/Acts, it cannot be said that the ACC did not have any authority to initiate. investigate, lodge FIR and continue to proceed with the case under the amended law it is to be deemed to have been committed under the law which has got a new life by the saving clause. Moreover, since it appears that from the date 'of framing of charge on 3-11-2015, the proceeding of the Case could not be concluded in last 5 (five) years because of-obstructions created by the accused petitioner by obtaining stay orders from higher court on different pleas, the submission made by the learned Advocate for the Accused petitioner has no substance in the eye of law. Hence the findings and decision arrived at by the High Court Division being based on proper appreciation of fact and law the same does not call for any interference by this Division. The trial Court is directed to proceed with the trial and conclude the same within 6 (six) months from the date of receipt of this judgment and order without any adjournment. .....Hafiz Ibrahim (Md), (Former MP) =VS= State, (Criminal), 2022(1) [12 LM (AD) 493] ....View Full Judgment

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

Code of Civil Procedure, 1908
Section 11
Constitution of Bangladesh, 1972
Article 111
It is by now finally settled that respondent No.5 cannot claim any valid right and claim over the land of disputed plot of the case in hand while the respondent No.1 became the owner of the land of disputed plot by way of acquisition. Although in the present case the respondent No.5 claims to be in possession of the disputed plot in view of the settled legal proposition the status of the respondent No.5 in the disputed plot is no better than a mere trespasser. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
It is the case of the appellant that she took the allotment of the disputed plot from the respondent No.1, RAJUK vide memo dated 16.11.1995. Now the pertinent question is that whether the appellant has acquired a valid right and title of the disputed plot. Since it has already been settled by this Division that the land of disputed plot was acquired by RAJUK in accordance with law and the said land was not delisted from the acquisition, it is our considered view that the appellant having taken allotment of the same from RAJUK has acquired a legitimate right and title over it. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
It is our considered view that the High Court Division committed illegality in passing the impugned judgment without taking into consideration that earlier in Writ Petitions No.11099 of 2006 and 3030 of 2005 the High Court Division found that the respondent No.5 has no right and title over the disputed plot. But in the case in hand, the High Court Division while dealing with the Writ Petition filed by the appellant held relying on the claim of the respondent No.5 to the effect that since the case involves the disputed question of facts as to the title over the disputed plot the same should be settled in Title Suit No.373 of 2005 filed by the respondent No.5 and as such the Writ Petition is not maintainable. The above findings of the High Court Division is absolutely unwarranted inasmuch as the fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1
Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 111 & 149
The Law Reports Act, 1875
The Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws”–– As the Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws” as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from rely on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate. .....Terab Ali =VS= Syed Ullah, (Civil), 2022(2) [13 LM (AD) 555] ....View Full Judgment

সংবিধানের ১১১ অনুচ্ছেদ অনুযায়ী আপীল বিভাগ কর্তৃক ঘোষিত আইন হাইকোর্ট বিভাগ ও নিম্ন আদালত কর্তৃক অনুসরণ করা বাধ্যতামূলক এবং হাইকোর্ট বিভাগ কর্তৃক ঘোষিত আইন নিম্ন আদালত কর্তৃক অনুসরণ করা বাধ্যতামুলক। তবে আমাদের উচ্চ আদালতের কিছু কিছু রায়ে উল্লেখ করা হয়েছে যে, বিদেশী উচ্চ আদালতের রায়গুলোকে প্রভাব সৃষ্টিকারী নজির (Persuasive precedence) হিসাবে গ্রহণ করা যেতে পারে যদি তা আমাদের আদালত কর্তৃক ঘোষিত কোনো রায়ের সাথে বা আইনের সাথে তা সংঘাতপূর্ণ না হয়। ...State Vs. Abdullah @Titumir @Titu, (Criminal), 18 SCOB [2023] HCD 20 ....View Full Judgment

In this connection, our considered view is that case laws of any jurisdiction is applicable in our jurisdiction subject to the provisions of Article 111 read with Article 149 of the Constitution of Bangladesh, 1972 only and anything beyond that periphery, specially from Subordinate Judiciary, could be termed as judicial adventurism. ...Terab Ali & ors Vs. Syed Ullah & ors, (Civil), 17 SCOB [2023] AD 34 ....View Full Judgment

Which precedents are applicable in our jurisdiction:
Regarding the binding effect of precedents of Supreme Court, Article 212 of the Government of India Act 1935; Article 163 of Constitution of Pakistan 1956 and Article 63 in Constitution of Pakistan of 1962 served the purposes of the present Article 111 of Bangladesh Constitution. By dint of the above mentioned constitutional provisions the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956); Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935-1947 13th August) the Privy Council (till 13th August, 1947) is applicable with binding effect in our jurisdiction. ...Terab Ali & ors Vs. Syed Ullah & ors, (Civil), 17 SCOB [2023] AD 34 ....View Full Judgment

Constitution of Bangladesh
Article 111 and Article 149
Law Reports Act, 1875
Judges of Sub-ordinate Judiciary are not empowered to interpret laws:
The Judges of Sub-ordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply “existing laws” as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from rely on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate. ...Terab Ali & ors Vs. Syed Ullah & ors, (Civil), 17 SCOB [2023] AD 34 ....View Full Judgment

Per incuriam– Judgment reported in 4 BLC(AD) 85, if any judgment pronounced by the Appellate Division, as per provision of Article 111 of the Constitution the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division must follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon’ble Chief Justice regarding the matter. On the other hand even if any judgment is pronounced by the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per imcuriam. Parties may get remedy on preferring appeal.
Appellate Division is of the view that it is the duty of this Court to make it very clear that if any judgment passed by the Court of co-equal jurisdiction has been passed on carelessness, or due to non-consideration of any statutory provision or previous judgment it must rectify the error. In respect of maintainability of the writ petition by a retired public servant is not applicable in this case as the said judgment is pronounced per incuriam. Hence, the Rule issued by the High Court Division on 08.11.2021 is discharged. However, the petitioners are directed to issue a fresh notice upon the respondent No.1 giving him opportunity to submit his reply and then to dispose of the matter in accordance with law. .....Ministry of Posts, BD =VS= Shudangshu Shekhar Bhadra, (Civil), 2022(1) [12 LM (AD) 258] ....View Full Judgment

If any judgment pronounced by the Appellate Division, as per provision of Article 111 of the Constitution the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division must follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon’ble Chief Justice regarding the matter. On the other hand even if any judgment is pronounced by the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per imcuriam. Parties may get remedy on preferring appeal. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11 ....View Full Judgment

Code of Civil Procedure, 1908
Section 11
Constitution of Bangladesh, 1972
Article 111
Res judicata— Appellate Division hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata. —The respondents No.1-4 are hereby directed to hand over the possession of plot No.5, Road No.29, Gulshan Residential Area, Dhaka within 60(sixty) days in favour of the present appellant from the date of receipt of this order. The respondents No.1-4 are also directed to complete all legal formalities including execution of all legal deeds and registration in favour of the appellant in accordance with law. .....Aziz Ara Rahman =VS= RAJUK, (Civil), 2024(1) [16 LM (AD) 623] ....View Full Judgment

Code of Civil Procedure, 1908
Order XIV Rule 1
Constitution of Bangladesh, 1972
Article 111
A person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed— It is transparent that where a party claims title by adverse possession in the pleadings and the other party denies it the Court frames an issue regarding the adverse possession. But in the case in hand since the plaintiff did not assert the claim of adverse possession the defendants were not needed to deny the claim of adverse possession in the written statement. Therefore, there was no occasion to frame an issue as regards adverse possession.
It is evident that the predecessor of the defendants Abul Kashem and his wife Nurjahan Begum were in possession of the suit land before 1960. From the memos dated 27.04.1960 (Exhibits-C(1) and C(2) it is seen that the acquiring authority asked the defendant Abul Kashem and his wife Nurjahan Begum to provide the name of the co-sharers, if any in the suit property. Memo dated 22.11.1960 (Exhibit-F(1)) issued by the Dhaka WASA to Md. Abul Kashem shows that as per his application dated 09.01.1960 the authority allowed him to take water connection in his structure in the name and style Matin Restaurant, Bijoynagar situated in C.S. Plot No.129. All the aforesaid documentary evidences clearly show that the defendants’ predecessor had been in possession of the suit land long before execution of so-called lease deed by the plaintiff on 09.05.1960.
The plaintiff except himself as P.W.1 could not examine any neutral witness to corroborate his claim to the effect that the defendant’s predecessor Abul Kashem was inducted into possession of the suit land on the basis of the lease deed dated 09.05.1960. The plaintiff also could not prove that he is in possession of the suit land taking oral settlement from Hazi Md. Arif in the year 1953. —Appellate Division finds that the plaintiff did not acquire title and possession in the suit land and the defendants were never lessee under the plaintiff but the trial Court without proper appraisal of the oral as well as documentary evidence available on the record decreed the suit and while the High Court Division lawfully set aside the judgment and decree of the trial Court. The instant Civil Appeal is dismissed without any order as to costs. .....Babru Mia =VS= Mosammat Noorjahan Begum, (Civil), 2024(1) [16 LM (AD) 631] ....View Full Judgment

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

The law declared by this Division regarding a subject matter is always binding on the High Court Division as well as other subordinate Courts. Since this Division in Civil Petition for Leave to Appeal No.1331 of 2008 has already categorically found that the respondent No.5 has no right and title in the disputed plot the impugned judgment passed by the High Court Division violates the provisions of Article 111 of the Constitution. .....Aziz Ara Rahman Vs. RAJUK and others (Civil), 19 SCOB [2024] AD 1 ....View Full Judgment

A judgment or order becomes effective (subject to correction of error or review by the same Court, as the case may be) the moment it is pronounced in the open Court. A certificate to that effect issued by a learned lawyer is sufficient proof to the parties or persons concerned, according to the law declared in 44 D.L.R. (AD) 219. Besides, as per provisions of article 111 of the Constitution of the Peoples Republic of Bangladesh, the judgment passed by the Appellate Division is binding on the High Court Division too, alongwith the subordinate Courts. Hence, if the Appellate Division pronounces any judgment then it becomes binding on the High Court Division (in similar cases), whether the same is signed or not. If the High Court Division considers it just and proper to wait till the judgment is pronounced by the Appellate Division to be signed, then it (HCD) can at best keep the matter awaiting judgment. But, it should not pronounce any judgment contrary to the judgment pronounced, in the open Court, by the Appellate Division, on the matter having relevance to the case before this Division. However, to cover this interim period, this Division may pass such interim order as the ends of justice may demand. ...Shafiqul Islam and another Vs. Bangladesh & others, (Civil), 2 SCOB [2015] HCD 54 ....View Full Judgment

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

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

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.

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.

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.

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.

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.

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.

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 & ors., (Civil), 9 SCOB [2017] AD 1 ....View Full Judgment

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

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

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.

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.

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.

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.

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.

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.

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.

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.

Exceptions where no deposit is necessary for preferring appeal in an Artharin Suit:
Despite the statutory provisions of preferring appeal, there are exceptional circumstances where an aggrieved party is competent to directly invoke writ jurisdiction bypassing the appellate forum. After minute examination of a case, if this Court finds that a party has come to this Court in clean hands and an injustice is about to be done to the said party, because the impugned order is passed by the Adalat with-out lawful authority or is ex-facie illegal or the Adalat has passed the impugned order going beyond its jurisdiction or the same suffers from malice in law, this Court becomes in a position to entertain a writ petition without being bothered about the availability of the appellate forum. In other words, save and except the forum excluded by the Constitutional provisions, such as the forum under Article 117 of the Constitution, this Court is always ready and happy to entertain a writ petition bypassing the appellate forum, if a petitioner comes with clean hand whose approach appears to the Court to be bonafide and who is truly in need of protection of this Court. Faizun Nabi Chowdhury -Vs.- The Judge Artharin Adalat No. 1, Dhaka and others. (Spl. Original) 2019 ALR (HCD) Online 115 ....View Full Judgment

Constitution of Bangladesh, 1972
Article 117(1), 117(2)
Administrative Tribunal Act, 1980
Section 4(2)
The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right–– It appears from words used in the order of the High Court Division that the Administrative Tribunal by its decision directed the concerned authority to take steps by amending respective “Bidhimala” for giving promotion of the writ petitioners in the post of Kanungo/ Sub-Assistant Settlement Officer. In fact, by the impugned order, the Administrative Tribunal directed to amend the law in giving positive relief of the writ petitioners which can not be allowed. The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right.–– The writ respondents may consider the case of writ petitioners following the provisions of law, if they are at all entitled. .....Rabiul Karim(Md.) =VS= Golam Morshed Khan, (Civil), 2022(2) [13 LM (AD) 272] ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 117 r/w
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

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

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

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.

Election Commission Secretariat Act, 2009
Sections 3 and 5
The Constitution of Bangladesh, 1972
Articles 118(4), 120
Election Commission (Officers and Staff) Rules, 1979
Rules 2 and 11
The employer is legally authorized to assess the competency of an employee during the probation period due to unsatisfactory performance–– The employees of the Election Commission Secretariat are appointed by the government and the terms and conditions of government employees are equally applicable in respect of the employees of the Election Commission. We find that both Sections 3 and 5 of নির্বাচন কমিশন সচিবালয় আইন, ২০০৯ talk about the independence of Election Commission Secretariat while Rules 2 and 11 of নির্বাচন কমিশন (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮ categorically states about the appointment of the employees and their terms and conditions in service. Virtually, Sections 3 and 5 of the নির্বাচন কমিশন সচিবালয় আইন, ২০০৯ do not put any embargo on the applicability of the contemporary government service laws to the employees of the Election Commission Secretariat. Therefore, we are constrained to hold that the Cabinet Secretary on behalf of the Government has locus standi to file the present Appeals against the judgment and order of the Administrative Appellate Tribunal since it involves the issue of termination of service of the employee of Election Commission Secretariat. Moreover, it is seen from the record that the Cabinet Secretary was a party to the Administrative Tribunal cases. ––The judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka in Appeals No.134, 139, 143 and 144 of 2009 are hereby set aside. .....Bangladesh Secretariat =VS= Md. Abdul Alim, (Civil), 2022(2) [13 LM (AD) 627] ....View Full Judgment

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.

The Local Government (Union Parishad) Rules 2010
Rule 92(1) read with
The Constitution of Bangladesh
Article 119(2)
Election Commission by letter dated 17.05.2016 stayed publication of the election result in the Gazette– Rule 92(1) of the Local Government (Union Parishad) Election Rules, 2010 the Commission acted bona fide in staying the Gazette Notification–As per the provisions of Article 119(2) of the Constitution read with Rules 3, 77, 78, 79, 80, 81, 85 and 90 of the Local Government (Union Paishad) Election Rules, 2010, the Election Commission is empowered to conduct the Union Parishad election freely, fairly, justly and honestly which covers the entire process–
Find from annexure-4 report of Mihir Sarwar Morshed, Regional Election Officer, Dhaka that after elaborate inquiry it was found that in 4(four) of the polling centres, namely centre Nos.6, 7, 8 and 9 there were irregularities or illegalities in the casting of votes and that the Presiding Officers were not able to carry out their duties properly.
In the light of complaints having been lodged on the date of election and the findings of the report mentioned above, it cannot be said that no allegation of irregularities and illegalities was made on the date of election.
The Election Commission rightly interfered and that it was within the jurisdiction of the Election Commission to take action against allegation of irregularities and illegalities which were brought to its notice on the very day of election.
We find that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside. ...Election Commission, Bangladesh =VS= Noruzzaman Sarker, (Civil), 2019 (1) [6 LM (AD) 98] ....View Full Judgment

The Local Government (Union Parishad) Rules 2010
Rule 92(1) r/w
The Constitution of Bangladesh
Article 119(2)
Election Commission by letter dated 17.05.2016 stayed publication of the election result in the Gazette– Rule 92(1) of the Local Government (Union Parishad) Election Rules, 2010 the Commission acted bona fide in staying the Gazette Notification–As per the provisions of Article 119(2) of the Constitution read with Rules 3, 77, 78, 79, 80, 81, 85 and 90 of the Local Government (Union Paishad) Election Rules, 2010, the Election Commission is empowered to conduct the Union Parishad election freely, fairly, justly and honestly which covers the entire process–
Find from annexure-4 report of Mihir Sarwar Morshed, Regional Election Officer, Dhaka that after elaborate inquiry it was found that in 4(four) of the polling centres, namely centre Nos.6, 7, 8 and 9 there were irregularities or illegalities in the casting of votes and that the Presiding Officers were not able to carry out their duties properly.
In the light of complaints having been lodged on the date of election and the findings of the report mentioned above, it cannot be said that no allegation of irregularities and illegalities was made on the date of election.
The Election Commission rightly interfered and that it was within the jurisdiction of the Election Commission to take action against allegation of irregularities and illegalities which were brought to its notice on the very day of election.
We find that the judgement and order of the High Court Division is not in accordance with law and accordingly the impugned judgement and order is set aside. ...Election Commission, Bangladesh =VS= Noruzzaman Sarker, (Civil), 2019 (1) [6 LM (AD) 98] ....View Full Judgment

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.

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.

MPs take oath to discharge their duties upon which they do not enter immediately, rather they are about to enter:
The framers of the Constitution in one place of the Constitution has provided that the MPs shall not assume office before expiration of the tenure of the last parliament, in another place it has provided that an MP shall be deemed to have assumed such office once he takes oath even before the first meeting of parliament or even before dissolution of the last parliament. As stated above, there is a latent purpose in the Constitution for incorporating this deeming provision which is the continuity of the government or the executives. This purpose become more clear when we see the prescribed form of oath to be taken by the MPs as incorporated in the 3rd Schedule to the Constitution. Unlike other oaths therein, the MPs take oath to discharge their duties upon which they do not enter immediately, rather they are about to enter. .....Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors, (Spl. Original), 19 SCOB [2024] HCD 66 ....View Full Judgment

MPs who took oath even before the first meeting of the parliament shall not in fact or in reality assume such office of members of parliament before expiration of the tenure of the last parliament:
This ‘deeming clause’ has been incorporated in sub article (3) of Article 148 just to facilitate such working and continuity of the government. Though, upon taking oath, the MPs in reality have not assumed office of members of parliament, yet they have assumed office by way of legal fiction created by the Constitution and that legal fiction must be interpreted by this Court limiting the same to be used for the said purpose only. It is apparent from the examination of the relevant provisions of the Constitution as mentioned above that our legislature has deliberately created this legal fiction so that the next executive government can be formed and appointed by the President. This intention of the legislature has been made clear by proviso to sub article (3) of Article 123 wherein it has been provided that such MPs shall not assume office as members of parliament except after the expiration of the term of the previous parliament. This means that, the MPs who took oath even before the first meeting of the parliament shall not in fact or in reality assume such office of members of parliament before expiration of the tenure of the last parliament. .....Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors, (Spl. Original), 19 SCOB [2024] HCD 66 ....View Full Judgment

Deeming provision:
It is well settled position of law that a deeming provision is an admission of the nonexistence of the fact deemed. The Legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that the Courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow there from, and give effect to the same. .....Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors, (Civil), 19 SCOB [2024] AD 10
Correct way to interpret a “deeming” clause:
When the legislature enacts a “deeming” clause, the correct way to interpret the same is to find out for what purpose and upto what extent the legal fiction has-been created. It is the function of the Court to find out the limitation of the legal fiction, to delimit its boundaries and not to extend the frontier of legal fiction beyond what has been provided in the statute. .....Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors, (Civil), 19 SCOB [2024] AD 10 ....View Full Judgment

Deeming provision–– It is well settled position of law that a deeming provision is an admission of the non-existence of the fact deemed. The Legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that the Courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow there from, and give effect to the same. .....Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad, (Civil), 2024(1) [16 LM (AD) 500] ....View Full Judgment

Public Demands Recovery Act, 1913
Section 19(3)
Constitution of Bangladesh, 1972
Article 123(3) r/w 148(3) & 72(3)
It is well settled that the legal fiction must be extended to its logical conclusion and at the same time it should be construed strictly. The High Court Division in the impugned judgment observed that a deeming clause in the Constitution, has to be interpreted taking into consideration of various factors depending on the backdrop due to which the same was incorporated, legislative intent for incorporation of such clause vis a vis the manner of application of such deeming clause. Appellate Division endorses the above observation of the High court Division. .....Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad, (Civil), 2024(1) [16 LM (AD) 500] ....View Full Judgment

In this respect Article 125 of the Constitution of Bangladesh is very much applicable in the facts and circumstances of the case. Particularly, the facts and circumstances arises in the writ petition is a clear bar as this type of dispute cannot be decided without any evidence both oral and documentary. (Majority view) (Per Mr. F.R.M. Nazmul Ahasan, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39
An election dispute can only be raised by way of an election in the manner provided therein. Where a right or liability is created by a statute providing special remedy for its enforcement such remedy as a matter of course must be availed of first. The High Court Division will not interfere with the electoral process as delineated earlier in this judgment, more so if it is an election pertaining to Parliament because it is desirable that such election should be completed within the time specified under the Constitution. In the instant case, a serious dispute as to the correct age of the appellant was raised before the High Court Division which was not at all a subject matter of decision on mere affidavits and certificates produced by the parties. (Majority view) (Per Mr. F.R.M. Nazmul Ahasan, J) ...Shakwat Hossain Bhuiyan Vs.Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 39 ....View Full Judgment

Constitution of Bangladesh,
Article 128 and
Income Tax Ordinance, 1984
Section 120 and 163 (3)
Whether audit report has any bearing upon the subjective opinion of assessing officer:
The Audit Department has been invested with the authority to inspect the accounts of Revenue Department. The Comptroller and Auditor General is authorized to direct any of his officers to conduct audit of tax receipts or refunds under section 163 (3)(g) of the Income Tax Ordinance. The High Court Division has opined that the CAG has got no jurisdiction to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. This view of the High Court Division is erroneous inasmuch as if the audit report does not have any bearing in the subjective opinion of the assessing officer, the very purpose of auditing pursuant to article 128 of the constitution is to be frustrated. If no action can be taken against any irregularities detected through auditing of accounts, auditing itself becomes unnecessary. In the instant case, for example, concerned DCT has allowed financial expenses of an amount of Tk. 575,49,249/- as demanded by the assessee which was not supported by annual report etc. and the audit report has detected this irregularity. If this irregularity as detected by the audit report does not trigger any proceeding under section 120 of the Income Tax Ordinance, 1984, the power conferred to the CAG under section 163(3)(g) of the same Ordinance becomes fruitless. …Bangladesh and ors Vs. Radiant Pharmaceuticals Ltd., (Civil), 16 SCOB [2022] AD 1 ....View Full Judgment

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.

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.

BADC Service Regulations, 1990 r/w
The Constitution of Bangladesh
Article 133
Appointment of an employee create a vested right in him which cannot be changed– Chairman, Bangladesh Agricultural Develop-ment Corporation (BADC), Dhaka vs. Chowdhury Md. Mahfuzul Islam and others (2003) 23 BLD (AD) 147. Paragraph-24 of the case referred: There is no right of promotion but it is also true that an employee has a right to be considered for promotion which is a condition of his service. Article 133 of the Constitution gives the authority power to regulate the appointment and service conditions of persons in the Service of the Republic. But it does not give power to prohibit promotion beyond the provision of law. The term "regulate" is not complementary to the term "prohibition". Therefore, none of the provisions of BADC Service Regulations, 1990 is to be read to impose prohibition on the promotion of the writ- petitioner-respondent to the post of the Superintending Engineer as a right has already accrued to him under BADC Service Regulations, 1968.
The service rules in existence at the time of appointment of an employee create a vested right in him which cannot be altered/changed subsequently to his disadvantage. …Bakhrabad Gaz System Ltd. =VS= Md. Shamsul Alam, [7 LM (AD) 153] ....View Full Judgment

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

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Government Servants (Discipline and Appeal) Rules, 1985
Rule 4(6), 7(2)(c) r/w
Constitution of Bangladesh, 1972
Article 135(2)
Administrative Tribunal Rules, 1982
Rules 6, 6(7), 11
Administrative Tribunals Act, 1980
Sections 5, 6 and 12
Dismissing the appeal for default–– Appellate Division found that the appeal was filed back in the year 2003 before the Administrative Appellate Tribunal. But after long laps of time when the matter was fixed for hearing on 26.02.2008 none appeared for appellants. So, it is apparent that the appellant had lost his interest to proceed with the appeal. Consequently, the appeal was dismissed for default. Subsequently, on an application for restoration of the appeal the same was also disallowed as the Administrative Appellate Tribunal did not believe the plea of the learned Counsel of the appellant to have lost his personal case diary to be an acceptable extenuating circumstance.
The above discussions it is abundantly clear that the Administrative Appellate Tribunal rightly disallowed the said application for restoration following the provisions of the Administrative Tribunal Act and Rules. .....Ministry of Forest, Bangladesh =VS= Kiran Sankar Sarker, (Civil), 2023(2) [15 LM (AD) 447] ....View Full Judgment

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with
rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954 and
article 143 (1) (c) of the Constitution:
It prima-facie appears that the rightful owner of the suit property is unavailable for a long period. Under the circumstances, the Deputy Commissioner of Rajshahi is to commence an inquiry into whether any rightful owner of the suit property is available or not. The Deputy Commissioner will also follow the procedure as laid down in Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954. If no rightful owner is available, the suit land except the share of defendant number 6 (Haripada Mahato) to the extent of 10 kathas in plot number 133 would vest in the Government under Article 143 (1) (c) of the Constitution read with Section 92 (3) of the State Acquisition and Tenancy Act. .....Sufia Bewa and ors Vs. Md. Aminul Islam and ors, (Civil), 19 SCOB [2024] HCD 85 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 143 (1) (c) r/w
Arpito Shompotti Pratyarpan Ain, 2001
Section 9(6)
Permanent lease– The predecessor of the appellants are in possession of the homestead of Shachida Nanda Sarkar from the year 1960 and from the evidence it appears that such possession was not denied by the Government, respondent Nos.1-2. Since appellants and their predecessors are/were in possession of the homestead of Shachida Nanda Sarkar since long, Appellate Division is, therefore, of the view that the landed property belonged to the appellants i.e. homestead of Shachida Nanda Sarkar measuring 3(three) bighas, the appellants for ends of justice would be entitled to have permanent lease because the predecessors of the appellants were refugees to take shelter came from India. The lease money would be Tk.1,00,000/- (Taka one lac) only. .....Khandakar Nurul Islam(Md.) =VS= Deputy Commissioner, Panchagarh, (Civil), 2022(1) [12 LM (AD) 60] ....View Full Judgment

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

The Constitution of Bangladesh, 1972
Articles 147(1) and (2), 118
Chief Election Commissioner and Election Commissioner (Remuneration Privileges) Ordinance [Ord. LVI of 1983]
Section 2
Supreme Court Judges (Leave, Pension and Privileges) Ordinance [Ord. XX of 1982]
Section 20(2)
Appointment to the post of an Election Commissioner, is a fresh appointment and not a re-employment to a government service. It has no nexus with the earlier career in the government service, if any, of the incumbent. There is a total break or hiatus from his earlier career. As such, he is entitled to the emoluments in the present assignment as guaranteed under the Constitution–– The remuneration, privileges and other existing terms and conditions of the Election Commissioners are guaranteed under Articles 147(1) and (2) and cannot be varied to their disadvantage even by an Act of Parliament. Besides, appointment to the post of an Election Commissioner, is a fresh appointment and not a re-employment to a government service. It has no nexus with the earlier career in the government service, if any, of the incumbent. There is a total break or hiatus from his earlier career. As such, he is entitled to the emoluments in the present assignment as guaranteed under the Constitution. ––The question of applicability of the Ordinance of 1982 does not arise since Chief Election Commissioners while appointed under Article 118 of the Constitution their remuneration and privileges as allowed under the Ordinance of 1983 are protected under sub-Article 147 and as such there is no scope, making the provision of Ordinance of 1982 is applicable to them.
Appellate Division is of the view that the High Court Division has rightly declared that the decisions contained in the memorandum No. সি,এজি/পদ্ধতি-২(রমু)/পনশন/২২৩/৩৪৩ dated 17.03.2002 issued under the signature of the Additional Deputy comptroller and Auditor General, the writ respondent No. 2, that the gross pension is to be deducted from the salary entitled to the Election Commissioners and that if they want to receive their full salary as Election Commissioners, they have to refund the amounts received earlier by way of commutation value of their pension, are illegal and the decision contained in the memorandum dated 21.11.2002 issued under the signature of the Assistant Secretary, Finance Department (Probidhi section-1), Ministry of Finance, that the writ petitioners would be entitled to their monthly salary, allowances and privileges after deduction of the amount of pension accrued to them, is also illegal. The judgment and order passed by the High Court Division is elaborate, speaking and well composed. This Division is not inclined to interfere with the same. .....Government of Bangladesh =VS= M.A. Syed, (Civil), 2023(2) [15 LM (AD) 11] ....View Full Judgment

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.

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

The provision of Article 148(3) of the Constitution has been incorporated to maintain continuity of running the government for the best interest of democracy–– Now, talking about the 11th Parliamentary election the newly elected MPs took oath on 03.01.2019 and on the same day the President realized that Sheikh Hasina, the newly elected MP in the said election, was commanding the majority support of the elected MPs and for such satisfaction of the president under the Constitution, he is not required to wait until the first meeting of Parliament. Therefore, the provision of Article 148(3) of the Constitution has been incorporated to maintain continuity of running the government for the best interest of democracy. In the 11th Parliament after being appointed Prime Minister on 03.01.2019, she determined as to who would be the Ministers, State Ministers and Deputy Ministers in her cabinet and, accordingly such MPs and some non-MPs were also appointed as Ministers, State Ministers and Deputy Ministers by the President in accordance with the Constitution. It is manifest from the above that “deeming clause” under Article 148(3) was incorporated just to facilitate the continuity of the government. Though, upon taking oath, the MPs in reality have not assumed office of members of parliament, yet they have assumed office by way of legal fiction created by the Constitution and that legal fiction must be interpreted restricting the same to be used for the said purpose only. The legislature deliberately created this legal fiction so that the next executive government can be formed and appointed by the President. The said intention of the legislature has been elucidated in Article 123(3)which states that member of Parliament shall not assume office as members of parliament except after the expiration of the term of the previous parliament. It denotes that the MPs who took oath even before the first meeting of the Parliament shall not in fact or in reality assume such office of members of parliament before expiration of the tenure of the last parliament. .....Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad, (Civil), 2024(1) [16 LM (AD) 500] ....View Full Judgment

“Deeming clause” under Article 148(3) was incorporated just to facilitate the continuity of the government. Though, upon taking oath, the MPs in reality have not assumed office of members of parliament, yet they have assumed office by way of legal fiction created by the Constitution and that legal fiction must be interpreted restricting the same to be used for the said purpose only. The legislature deliberately created this legal fiction so that the next executive government can be formed and appointed by the President. The said intention of the legislature has been elucidated in Article 123(3) which states that member of Parliament shall not assume office as members of parliament except after the expiration of the term of the previous parliament. It denotes that the MPs who took oath even before the first meeting of the Parliament shall not in fact or in reality assume such office of members of parliament before expiration of the tenure of the last parliament. .....Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors, (Civil), 19 SCOB [2024] AD 10 ....View Full Judgment

Articles 149 and 150 of the Constitution have been inserted in the Constitution for giving continuity and making interim arrangements in respect of all laws made, acts, things and deeds done and orders promulgated or made or purported to have been made in the transitional period between 26th March, 1971 and the commencement of the Constitution, and all powers exercised and things done during the said period under the authority derived or purported to have been derived from the Proclamation of Independence, and therefore, the insertion of paragraph 3A in the Fourth Schedule by the Proclamations (Amendment) Order, 1977 (Proclamations Order No.1 of 1977) and Paragraph 18 in the Fourth Schedule by the Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) is void ab initio and is hereby expunged. .....Ministry of Industries, Bangladesh =VS= Bangladesh Italian Marble Works Ltd., (Civil), 2023(2) [15 LM (AD) 385] ....View Full Judgment

The judgment of the High Court Division is approved subject to the following modifications:-
(a) All the findings and observations in respect of Article 150 and the Fourth Schedule in the judgment of the High Court Division are hereby expunged, and the validation of Article 95 is not approved;
3. In respect of condonation made by the High Court Division, the following modification is made and condonations are made as under:
(a) all executive acts, things and deeds done and actions taken during the period from 15th August 1975 to 9th April, 1979 which are past and closed;
(b) the actions not derogatory to the rights of the citizens;
(c) all acts during that period which tend to advance or promote the welfare of the people;
(d) all routine works done during the above period which even the lawful government could have done.
(e) (i) the Proclamation dated 8th November, 1975 so far it relates to omitting Part VIA of the Constitution;
(ii) the Proclamations (Amendment) Order 1977 (Proclamations Order No. 1 of 1977) relating to Article 6 of the Constitution.
(iii) the Second Proclamation (Seventh Amendment) Order, 1976 (Second Proclamation Order No. IV of 1976) and the Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to amendment of English text of Article 44 of the Constitution;
(iv)the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation Order No.IV of 1978) so far it relates to substituting Bengali text of Article 44;
(v) The Second Proclamation (Tenth Amendment) Order, 1977 (Second Proclamation Order No. 1 of 1977) so far it relates to inserting Clauses (2), (3), (4), (5), (6) and (7) of Article 96 i.e. provisions relating to Supreme Judicial Council and also clause (1) of Article 102 of the Constitution, and
(f) all acts and legislative measures which are in accordance with, or could have been made under the original Constitution. .....Khondker Delwar Hossain =VS= Bangladesh Italian Marble Works Ltd., (Civil), 2023(2) [15 LM (AD) 270] ....View Full Judgment

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

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.

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.

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.

“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

The definition of "statutory public authority" under Article 152 of the Constitution:
There is no merit in the contention of Mr. Khan that the JVA and GPSA are commercial contracts entered into by respondent No. 3 (BAPEX) and respondent No. 2 (Petrobangla) as corporate entities and therefore these contracts are not sovereign contracts entered into by the State of Bangladesh which may be subjected to judicial review. We do not agree with these submissions since the JVA and GPSA were clearly executed through the exercise of Executive authority to grant rights over public resources to a private party, respondent No.4. The respondent Nos. 2 and No.3 clearly fall within the definition of "statutory public authority" under Article 152 of the Constitution. .....Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD 125 ....View Full Judgment

Town Improvement Act, 1953
Sections 102, 155
Constitution of Bangladesh, 1972
Article 152 r/w General Clauses Act, 1897
Imposition of conversion fees–– RAJUK is a statutory body as per Article 152 of the Constitution read with the General Clauses Act, 1897, any delegated legislation [such as rules, notification or bye-laws] has to be published in the Bangladesh Gazette. It is stated that any imposition of conversion fees by RAJUK must be done through a delegated legislation [Rules] duly promulgated pursuant to section 102 of the Act, 1953 and published through gazette notification under section 155 of the Act, 1953 read with Article 152 of the Constitution and the provisions of the General Clauses Act, 1897. Section 102 of the Act, 1953 empowers the Government to make rules that are not inconsistent with the provisions of the Act, 1953. In particular, under section 102(g) of the Act, 1953, the Government is empowered to make rules for imposing fees in respect of any matter. All kinds of conversion, development, improvement and expansion of the Capital Dhaka City is governed under the authority of RAJUK pursuant to the Town Improvement Act, 1953. So, imposition of conversion fees or charges from residential to commercial building for approval is the internal policy of RAJUK and the writ-petitioners leased the property out to a commercial bank in 2008 which tried to make development in the property. ––Appellate Division is constrained to hold that the writ-petition filed by the writ-petitioners was not maintainable. This petition is disposed of. The judgment and order dated 11.12.2017 passed by the High Court Division is, hereby, set aside. .....Rajdhani Unnaiyan Kartipakkha =VS= Begum Sitara Chowdhury, (Civil), 2023(2) [15 LM (AD) 102] ....View Full Judgment

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 & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment

Cittagong Hill Tracts Regulation 1900
Article 152 of the Constitution of Bangladesh
Temporary injunction, Mutation Case, Special statutory rules and regulations, Cittagong Hill Tracts Refgulation 1900, Customary laws of the Chittagong Hill Tracts, Article 152 of the Constitution of Bangladesh, Existing laws; Private parties regarding declaration of a deed, Registration of the deed, Competence any of party;
Mandatory issuance of notice upon the statutory authorities before filing of any suit in accordance with the relevant laws and also taking into consideration the existing customary laws of the Chittagong Hill Tracts which contemplate mandatory service of notice to the concerned authorities prior to filing any suit. ...Pruesiau Aug Marma & anr. Vs. Aungmra Shang Marma & anr., (Civil), 14 SCOB [2020] HCD 133
Customary laws and usages of the Chittagong Hill Tracts are all within the ambits of law and as such they can not be violated. ...Pruesiau Aug Marma & anr. Vs. Aungmra Shang Marma & anr., (Civil), 14 SCOB [2020] HCD 133 ....View Full Judgment

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

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.

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.

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.

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.