Act/Law wise: Judgment of Supreme Court of Bangladesh (AD & HCD)
Constitution of Bangladesh, 1972 | |||
---|---|---|---|
Section/Order/ Article/Rule/ Regulation | Head Note | Parties Name | Reference/Citation |
Preamble of a statute– |
Preamble of a statute–
|
S. N. Kabir =VS= Fatema Begum & others | 1 LM (AD) 401 |
Preamble |
Amendment of – Preamble now is an entrenched provision of the Constitution that cannot be amended by the Parliament alone. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Preamble |
Pole star of the Constitution– One of the fundamental aims of our society is to secure the rule of law for all citizens and Part VI (Judiciary) and other provisions have been incorporated in the Constitution in furtherance of that aim. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Preamble & Articles 7, 8, 26, 44, 100 & |
Preamble & Articles 7, 8, 26, 44, 100and142 (1)(1A)–
|
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Preamble and Articles 27, 31, 32, 44 & |
Preamble and Articles 27, 31, 32, 44 and 94 to 116A–
|
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 2A |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Article 2A |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Articles 2(a),55, 142(2) and 143(2) |
Treaty involving cession of territory of Bangladesh. (Delhi Treaty effected
on 16th May 1974)— Constitutional requirement—
|
Kazi Mukhlesur Rahman Vs. Bangladesh. | 26 DLR (SC) 45 |
Article 2A |
Being in line with the addition made by the Proclamations (Amendment)
Order, 1977 (Proclamation Order No.1 of 1977) in the preamble, another
military ruler passed the Constitution (Eight Amendment) Act, 1988 in a
rubber stamp Parliament on June 9, 1988. The Eight Amendment incorporated
fundamental changes in the constitution by incorporating a new clause as
article 2A. This new article introduced Islam as the State religion, which
was not in the 1972 constitution. Introduction of State religion was also
in direct conflict with “secular-ism,” which was one of the fundamental
principles of State policy in the 1972 constitution. Despite the Parliament
revived “secularism” as one of the fundamental principles of State
policy by passing the Constitution (Fifteenth Amendment) Act, 2011, it
retained article 2A.
|
Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others | 10 ALR (AD) 1 |
Article 2A |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Article 2A |
Purely political questions are outside the scope of judicial review:
|
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Article 2A |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Article 7 and 18A |
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 |
Grameenphone Ltd & ors Vs. BTRC & Ors | 19 SCOB [2024] AD 96 |
Article 7 |
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 |
Khondker Delwar Hossain =VS= Bangladesh Italian Marble Works Ltd.(5th Amendment Case, C. P.) | 15 LM (AD) 270 |
Preamble and Articles 7 and 8– |
Contention that Parliament has unlimited power is unsound–Neither Preamble nor Article 8 can be amended except by referendum–Article 7 stands between the Preamble and Article 8 as statute of liberty, supremacy of law and rule of law–It is the pole star of our Constitution. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 7 |
Parliament is the creation of this Constitution and all powers follow from this article namely, Article 7. No Parliament can amend this. On the revival of the Constitution after being suspended, Article 7 stood revived. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 7 |
Article 7 does not contain empty phrases. It means that all the legislative, executive and judicial powers conferred on the Parliament, the Executive and the Judiciary respectively are constitutionally the powers of the people themselves and the various functionaries and institutions created by the Constitution exercise not their own indigenous and native powers but the powers of the people on terms expressed by the Constitution. Per Mustafa Kamal J delivering The Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. |
Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others | 49 DLR (AD) 1 |
Articles 7, 8, 11 & 28 (4) |
Indirect election for reserved seats whether destroyed the principle of democracy–A system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Clause 4 in Article 28 provides that nothing in that Article shall prevent the State, which expression includes Parliament, from. making special provision in favour of women as done by Act No. 38 of 1990. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. |
Dr. Ahmed Hussain vs Bangladesh | 44 DLR (AD) 109 |
Articles 7 and 26 |
Interpretation of statute Constituent power'–Where this power is vested in Parliament–Whether the 'Constituent power' is a derivative one making the amendment immune from challenge–validity test–An amendment of the Constitution is not included in law' within the meaning of Article 7 in the same way as it is not law in Article 26. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 7, 26, 142 and 152 |
Law as defined in Article 152–Any law inconsistent with the Constitution shall, to the extent of such inconsistency, be void– Then judiciary is to consider the validity or otherwise of a law (Act of Parliament) and declare it void if it is in conflict with Article 7. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 7, 80(4) and 142(i)(ii) |
Interpretation of Constitution–The laws amending the Constitution are lower than the Constitution and higher than the ordinary laws–Difference of legislative process for passing legislations under Article 80(4) and Article 142(i)(ii) distinguished – Basic feature–The fabric of the Constitution cannot be dismantled by Parliament–The amendment is to be tested on the touchstone of Article 7. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 7 and 152 |
Whether the expression 'any other law' occurring in sub–article(2) of Article 7 would also include a law amending the Constitution itself enacted under the 'Constitutent power' inasmuch as the same way as an ordinary law encted under the ordinary legislative powerThe contention that constituent or legislative, Parliament derives the power from the Constitution and that law amending the Constitution having a higher status should be subjected to Article 7 for examining its legitimacy as any other law is not acceptable. Anwar Hussain Chowdury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdury vs Bangladesh | 41 DLR (AD) 165 |
Article 7(1), 59 & 152(1) |
"Administrative unit." Article 152(1) has given a particular meaning of "Administrative unit". In this Article the words "district or any other area" are to be read conjunctively, and if it is done, a district is found to be an administrative unit, and for the purpose of Article 59, that is to say, for establishing a Local Government there, no designation by law is necessary. But as regards "any other area" it will be an administrative unit" only if it is specifically designated as such by law. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Articles 7(2), 94 and 100(5) |
Interpretation of Constitutional provision–Sub–article (5) of Article 100 has destroyed the structural pillar of the Constitution as embodied in Article 94–Sub-article (5) has also brought itself within the mischief of Article 7(2). Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 7 and 18A |
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 | 19 SCOB [2024] AD 96 |
Article 7 |
Article 7 ensures the supremacy of the constitution. It may be reiterated that the Supreme Court is not only an independent organ of the State, but it also acts as the guardian of the constitution. It is the Supreme Court that ensures that any law that which is inconsistent with the constitution will be declared void in exercise of the judicial review by reference to articles 7(2) and 26. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Articles 7, 7A, 7B and 111 |
`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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Articles 7, 7A, 7B and 111 |
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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Articles 8–25 |
Fundamental Principles of State Policy cannot be judicially enforced despite the supremacy of the Constitution recognised by our Constitution. It is judiciary that has to say the last word even in matters of propriety of legislation. The concept of legislative supremacy imported from the soil of a developed country cannot be transplanted into the soil of a developing nation which has a nascent democracy as it is in Bangladesh. Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30. |
Sheikh Abdus Sabur vs Returning Officer | 41 DLR (AD) 30 |
Article 8 |
Absolute trust and faith in the Almighty Allah necessarily mean the duty to protect his creation and environment. The appellant is aggrieved, because Allah's creations and environment are in mortal danger of extinction and degradation per Mustafa Kamal J delivering the Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. |
Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others | 49 DLR (AD) 1 |
Articles 8 & 8 (IA) |
The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an: (Mustafa Kamal J). Hefzur Rahman (Md) vs ShamsunNahar Begum and another 51 DLR (AD) |
Hefzur Rahman (Md) vs ShamsunNahar Begum and another | 51 DLR (AD) |
Articles 8, 48, 56, 80, 92A and 142(1A) |
Preamble–Referendum–Whether the Preamble can be amended–Whether the Preamble is a part of the Constitution. Whether the Preamble is part of the Constitution or not as it has been the case in some other country. Article 142(1A) stipulates that a Bill for amendement of the Preamble and provisions of Articles 8, 48, 56, 80, 92A and Article 142 when passed in the Parliament and presented to the President for assent "the President shall within the period of seven days after the Bill is presented to him, cause to be referred to a referendum the question whether the Bill should or should not be assented to". Hence the Preamble can only be amended by referendum and therefore is a part of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 8-25 (Part II) |
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.
|
Ministry of Housing and Public Works, Bangladesh =VS= Md. Saiful Islam | 12 LM (AD) 366 |
Article 8, 10, 27 |
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
|
Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors | 8 SCOB [2016] HCD 67 |
Article 9 |
Fundamental Principles of State Policy are not justiciable in court.
|
Sheikh Abdus Sabur vs Returning Officer | 41 DLR (AD) 30 |
Article 9 |
Article 9 of the Constitution contains policy matter of the Republic for the attainment of which endeavour shall have to be made by the State–The Court is to go by the law as it is. Mosharraf Hossain (Md) (Babul) vs Bangladesh 56 DLR (AD) 113. |
Mosharraf Hossain (Md) (Babul) vs Bangladesh | 56 DLR (AD) 113 |
Articles 9 & 11 |
Fundamental Principles of State Policy–Such principles, though fundamental to the governance of the country, are not judicially enforceable and the reason is obvious–They are in the nature of people's programme for socio–economic development in peaceful manner, not overnight, but gradually. Implementations of these programmes require resources, technical know–how and many other things. Whether all these pre–requisites for a peaceful socio–economic revolution exist is for the State to decide. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Article 12 |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Articles 14 and 34 |
Function of a Trade Union—Function of a trade union is to promote the
interest of the workers, not to carry on business —
|
Bangladesh Inland Water Transport Authority Vs. Bangladesh I. W. T.A. Ghat Sramik Union and another, | 2 BLD (AD) 83 |
Articles 14 &102 |
Transparency in the decision making as well as in the functioning of the public bodies is desired and in the matter where financial interest of the State is involved transparency of the decision making authority is a recognised matter. The judicial power ofreview is exercised to rein in any unbridled executive functioning. Hyundai Corporation vs Sumikin Bussan Corporation & others 54 DLR (AD) 88. |
Hyundai Corporation vs Sumikin Bussan Corporation & others | 54 DLR (AD) 88 |
Articles 15, 17, 83 |
Income Tax Ordinance, 1984
|
Ministry of Finance, Bangladesh =VS= North South University | 16 LM (AD) 63 |
Articles 18(1), 31 and 32 |
Meaning of right to life:
|
Bangladesh & ors Vs. Professor Nurul Islam & anr | 9 SCOB [2017] AD 46 |
Articles 18(1), 31 and 32 |
No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life. …Bangladesh & ors Vs. Professor Nurul Islam & anr, (Civil), 9 SCOB [2017] AD 46 ....View Full Judgment |
Bangladesh & ors Vs. Professor Nurul Islam & anr | 9 SCOB [2017] AD 46 |
Articles 18(1), 31 and 32 |
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 |
Bangladesh & ors Vs. Professor Nurul Islam & anr | 9 SCOB [2017] AD 46 |
Articles 18(1), 31 and 32 |
No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life. .....Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125] ....View Full Judgment |
Government of Bangladesh =VS= Professor Nurul Islam | 4 LM (AD) 125 |
Article 20(1), 27 |
Equal pay for Equal work:
|
Md. Nur Hossain & ors. Vs. Bangladesh & ors. | 10 SCOB [2018] HCD 299 |
Article 20 (2) |
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 |
M. Asafuddowlah Vs. Bangladesh | 15 SCOB [2021] HCD 1 |
Article 20 (2), 88 |
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 |
M. Asafuddowlah Vs. Bangladesh | 15 SCOB [2021] HCD 1 |
Article 21 |
Abnormal situation–Judges' duty–Two alternatives open to them, either to resign or to hold on to the post–Future of the Constitution lies in the commitment of the citizens who are obliged under Article 21 to observe the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 22, 94(4), 116A and 147 |
The independence of the judiciary is the foundation stone of the
constitution–
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Articles 23 and 24 |
The property concerned bears great historic and cultural significance being
the tenement where the most illustrious star in the galaxy of Bengali film,
Suchitra Sen was born in. She is our Pride (but not Prejudice) and shall
live as our invaluable heritage till the twilight of civilisation. It is no
exaggeration to say that the Government is saddled with a constitutional
duty to adopt measures required for its protection under Article 23 and 24
of the Constitution. Furthermore, it would be inequitable to try to hold
the authorities to their purported promise not only because of their
constitutional obligation to protect and preserve it but also because
plunging the government to the claimed promise would mean depriving the
nation of a prodigious relic.
|
Md. Ayub Hossain Khan-Vs-Human Rights and peace for Bangladesh, represented by its Secretary, Advocate, Asaduzzaman Siddique and others | 4 ALR (AD) 89 |
Article 24, 27, 31 and 32 |
Government Building Act, 1899
|
Bangladesh =VS= Bangladesh Paribesh Andolon (BAPA) | 13 LM (AD) 496 |
Articles 26 and 27 |
Whether the disqualification clause in section 7(2)(g) of UP Ordinance,
1983 offends the equality clause in Article 27 of the Constitution of
Bangladesh.
|
Sheikh Abdur Sabur vs Returning Officer | 41 DLR (AD) 30 |
Article 26-47(Part III) |
To invoke the fundamental rights conferred by Part III of the constitution, any person aggrieved by the order, action or direction of any person performing the functions in connection with the affairs of the Republic, the forum is preserved to the High Court Division. The conferment of this power cannot be curtailed by any subordinate legislation - it being the inalienable right of a citizen. This power cannot be conferred upon any Tribunal by the Parliament in exercise of legislative power or by the High Court Division or the Appellate Division in exercise of its power of judicial review. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment |
Bangladesh & ors Vs Sontosh Kumar Shaha & ors | 6 SCOB [2016] AD 1 |
Articles 26, 27, 31, 40 and 42 |
Income Tax Ordinance, 1984
|
S. Alam Beg Manufacturing Mills Ltd. =VS= Ministry of Finance, BD | 14 LM (AD) 344 |
Articles 26, 27, 31, 40 and 42 |
Income Tax Ordinance, 1984
|
S. Alam Beg Manufacturing Mills Ltd. =VS= Ministry of Finance, BD | 14 LM (AD) 344 |
Article 26, 27 and 47 |
The Foreigners Act, 1946
|
Abdul Gaffar (OC, Tejgaon PS) =VS= Md. Mohammad Ali | 12 LM (AD) 51 |
Articles 27 and 29 |
Discrimination pay scale–
|
Bangladesh Railway =VS= Station Master-O-Karmochari Union | 7 LM (AD) 48 |
Articles 27, 31 and 40 |
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.
|
M/S BHIS Apparels Limited represented by its Managing Director, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, BTI Celebration Point, Bangladesh and others | 2019 ALR (HCD) Online 302 |
Article 27, 31 and 40 |
Constitution of Bangladesh
|
Md. Nur Alam Chowkider 19 and others-Vs.- Bangladesh, represented by the Secretary, Ministry of Shipping, Bangladesh Secretariat, Ramna, Dhaka 6 and others | 2019 ALR (HCD) Online 352 |
Article 27 |
The functions of the members of Parliament and the members of the Union
Parishad differ widely.
|
Sheikh Abdus Sabur vs Returning Officer | 41 DLR (AD) 30 |
Article 27 |
Equality before law–The term "equality before law" should not be
interpreted in its absolute sense to hold that all persons are equal in all
respects disregarding different conditions and circumstances in which they
are placed or special quality and characteristics which some of them may
possess but lacking in others.
|
Bangladesh vs Md Azizur Rahman | 46 DLR (AD) 19 |
Article 27 |
Barring a thrice–elected member of the managing committee of a co–operative association to stand for election again till the lapse of 2 years since his last term expired as provided in section 19(2) of the Co–operative Societies Ordinance is not an unreasonable restriction. Abdus Sattar vs Bangladesh 45 DLR (AD) 65. |
Abdus Sattar vs Bangladesh | 45 DLR (AD) 65 |
Article 27 |
The two types of power given to the Registrar under section I 0 of the Industrial Relations Ordinance, 1969 and section 5 of the Amendment Act, 1990 are dissimilar in their operation and field of application. There can be no parity of application of the two sections. 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. |
Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others | 45 DLR (AD) 122 |
Article 27 |
The pensioners of various categories being not on same and equal footing their classification is not illegal and violative of Article 27 of the Constitution. For the purpose of calculation of pension the classification of pensioners on the basis of the last pay drawn is a real and rational classification. Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr 51 DLR (AD) 121. |
Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr. | 51 DLR (AD) 121 |
Article 27 |
The embargo on banks, insurance companies and other financial institutions to nominate its directors on the Board of a financial institution is based on a reasonable classification. City Bank Limited and others vs Bangladesh Bank and others 51 DLR (AD) 262. |
City Bank Limited and others vs Bangladesh Bank and others | 51 DLR (AD) 262 |
Article 27 |
Law requires that subsequent change of terms and conditions of tender must be relayed to each and every participant so that all of them can avail of the equal opportunity while participating in the tender. Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD) 130. |
Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others | 54 DLR (AD) 130 |
Article 27 |
Writ Jurisdiction–Transparency–On review of the process adopted in giving licence to Ekushey Television, the conclusion is that there exists more than one evaluation report bearing the same number and date and one of them is changed to the advantage of ETV. The process is definitely not transparent. Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others 54 DLR (AD) 130. |
Ekushey Television Ltd and others vs Dr Chowdhury Mahmmod Hasan and others | 54 DLR (AD) 130 |
Article 27 |
In the background of the existing practice of absorbing the employees of the petitioners category on satisfactory completion of the initial period of employment under a contract it can be said that there was reasonable ground for the writ petitioners to expect for being absorbed permanently in the service of the Corporation. Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others 55 DLR (AD) 132. |
Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others | 55 DLR (AD) 132 |
Article 27 |
Since some employees of the Corporation inter se standing in the similar situation have not been treated in the similar manner or, in other words, have been treated differently from the others the contention of the writ petitioners that they have been discriminated against has rightly been found genuine by the High Court Division. Bangladesh 'Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others 55 DLR (AD) 132 |
Bangladesh 'Biman Corporation, represented by Managing Director vs Rabia Bashri Irene and others | 55 DLR (AD) 132 |
Articles 27 & 29 |
If the executive prepares a list of persons for appointment in the service of the Republic without the backing of any law behind it and actually appoints some persons from the list, the others left out can come to the High Court Division not for enforcement of any legal right but for enforcement of their fundamental right. Secretary, Ministry of Establishment Government of Bangladesh and others vs Md Jahangir Hossain and 65 others 51 DLR (AD) 148 |
Secretary, Ministry of Establishment Government of Bangladsh and others vs Md Jahangir Hossain and 65 others | 51 DLR (AD) 148 |
Articles 27 & 29 |
The argument that the fundamental right of the petitioners as provided in Articles 27 and 29 of the Constitution have been violated cannot be accepted for the simple reason that the order of transfer from one place to another is really a matter connected with the terms and condition of the service of the petitioners. Jihad Ahmed and others vs Bangladesh Power Development Board and others 52 DLR (AD) 75 |
Jihad Ahmed and others vs Bangladesh Power Development Board and others | 52 DLR (AD) 75 |
Article 27 and 31 |
Bangladesh Service Rules, Part I
|
Md Mahboob Murshed Vs. Bangladesh & ors | 16 SCOB [2022] HCD 7 |
Article 27 |
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 |
Dr. Zubaida Rahman Vs. The State & anr | 17 SCOB [2023] AD 54 |
Article 27 |
The Public Employees Discipline (Punctual Attendance) Ordinance, 1982
|
Bangladesh & others =VS= Hamento Kumar Barmon | 1 LM (AD) 429 |
Articles 27, 40 and 102(1) |
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 |
M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors. | 13 SCOB [2020] HCD 1 |
Article 27, 29(1) |
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 |
Bangladesh =VS= Nadira Begum | 11 LM (AD) 519 |
Article 28 |
The matter of fixing the age of retirement of the Stewards and Stewardesses being gender–based the same has rightly been held by the High Court Division discriminatory and the discrimination so made being violative of Article 28 of the Constitution is not legal. Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene 55 DLR (AD) 132 |
Bangladesh Biman Corporation, represented by Managing Director vs Rabia Bashri Irene | 55 DLR (AD) 132 |
Article 28( 4) |
Indirect election for reserved seats whether destroyed the principle of democracy–A system of indirect election cannot be called undemocratic. It is provided in the Constitution itself. Clause 4 in Article 28 provides that nothing in that Article shall prevent the State, which expression includes Parliament, from making special provision in favour of women as done by Act No. 38 of 1990. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. |
Dr. Ahmed Hussain vs Bangladesh | 44 DLR (AD) 109 |
Article 28, 27, 19 |
Hindu Law of Inheritance (Amendment) Act, 1929
|
Shishubar Dhali =VS= Chitta Ranjan Mondol | 14 LM (AD) 62 |
Article 29 |
Constitution of Bangladesh, 1972
|
Dr. Khairun Nahar and others -Vs- Professor Dr. Iqbal Arshalan & others | 11 ALR (AD) 19 |
Article 29 |
Equal opportunity– Reduction of chance of promotion does not amount to deprivation of the right to equal opportunity for employment. No grievance could be made of new rules if they are made bonafide to meet exigencies of service. Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19. |
Bangladesh vs Md Azizur Rahman | 46 DLR (AD) 19 |
Article 31, 35(1), (3) and Article 47A (1), 47(3) |
Nullum crimen lege– Among the law points Mr. Razzak invoked, the doctrine
nullum crimen sine lege found an important place. According to him it is an
universally recognized principle of law that an action if did not amount to
a crime when committed, the actor cannot be subsequently punished for that
action through subsequent legislation. He also engaged Article 35(1) of our
constitution.
|
Government of Bangladesh =VS= Abdul Quader Molla | 8 LM (AD) 375 |
Article 31 |
As the letter impugned in the writ petition did not contain anything detrimental to the reputation and career of the respondent, there was no violation of the provision of Article 31 of the Constitution and, as such, the writ petition so filed was not maintainable. Secretary, Ministry of Law, Justice and Parliamentary Affairs & ors vs Md Borhan Uddin & ors 56 DLR (AD) 131 |
Secretary, Ministry of Law, Justice and Parliamentary Affairs & ors vs Md Borhan Uddin & ors | 56 DLR (AD) 131 |
Articles 31 & 32 |
All persons within the jurisdiction of Bangladesh are within Bangladesh rule of law. The foreign investors in ETV are no exception to this principle. Ekushay Television Ltd and others vs Dr Chowdhury Mahammod Hasan and others 54 DLR (AD) 130. |
Ekushay Television Ltd and others vs Dr Chowdhury Mahammod Hasan and others | 54 DLR (AD) 130 |
Articles 31 and 32 |
Right to life–
|
Government of Bangladesh =VS= Professor Nurul Islam | 4 LM (AD) 125 |
Article 31 |
Equal protection of law in appointment;
|
Dr. Nafia Farzana Chowdhury Vs. BSMMU & ors. | 14 SCOB [2020] HCD 33 |
Article 31 |
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:
|
M. Asafuddowlah Vs. Bangladesh | 15 SCOB [2021] HCD 1 |
Article 31 |
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 |
Md Mahboob Murshed Vs. Bangladesh & ors | 16 SCOB [2022] HCD 7 |
Articles 32, 33 and 35(5) |
It was argued on behalf of the respondent that this court has a duty to uphold the rule of law and the constitutional safeguards on arrest and prevention of torture and ill-treatment of the suspected offenders. In this connection our attention has been drawn to articles 32, 33 and 35(5) of the constitution. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment |
Ministry of Law, Justice & Parl. Afrs. =VS= BLAST | 3 LM (AD) 274 |
Article 32 |
Article 32 is couched in the similar language of article 21 of the Indian
Constitution. Article 22 of the Indian Constitution relates to protection
of arrest and detention in certain cases. The Supreme Court of India
dealing with a petition by a victim who has been detained in police custody
and his whereabouts could not be located, subsequently it was detected that
he was detained by the police without producing before the Magistrate. The
Supreme Court relying upon some previous decisions on the subject and on
construction of articles 21 and 22 of the constitution held in Jagindra
Kumar v. State of U.P., (1994) 4 SCC 260 that the police officer must
justify the arrest and detention in police lockup of a person and no arrest
can be made in a routine manner on a mere allegation of commission of an
offence. It would be prudent, it was observed, for a police officer in the
interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to the
genuineness and bona fides of a complaint and a reasonable belief both as
to the person’s complicity and even so as to the need to effect arrest.
Denying a person of his liberty is a serious matter. Accordingly, for
effective enforcement of fundamental rights it issued the following
requirements to be complied with whenever accused is arrested:
|
Ministry of Law, Justice & Parl. Afrs. =VS= BLAST | 3 LM (AD) 274 |
Article 32 |
"Save in accordance with law" as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43. ....View Full Judgment |
State vs Faisal Alam Ansari | 53 DLR (AD) 43 |
Article 32 |
The Environment Conservation Act, 1995
|
Ministry of Land, Bangladesh =VS= Mohammad Mushfaqur Rahman | 8 LM (AD) 325 |
Article 32 |
বেঁচে থাকার অধিকারের
প্রমাণিত হরণ হলে আদালত
ক্ষতিপূরণ প্রদান করবেঃ
|
Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) | 16 SCOB [2022] HCD 84 |
Article 32 |
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
|
Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) | 16 SCOB [2022] HCD 84 |
Article 32, 102 |
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
|
Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) | 16 SCOB [2022] HCD 84 |
Article 33 |
These provisions of the above two sections have been reproduced in article 33 of the constitution. The framers were conscious that despite such safeguards are ensured, this provision should be retained as integral part of fundamental rights. So the police officers must not deprive of the fundamental rights recognised to a citizen. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment |
Ministry of Law, Justice & Parl. Afrs. =VS= BLAST | 3 LM (AD) 274 |
Article 33 (2) |
Prolonged police custody; Article 33 (2) of the Constitution:
|
Dr. Miah Md. Mohiuddin & ors Vs. The State & ors | 17 SCOB [2023] AD 1 |
Article 35 (2) |
Constitution of Bangladesh, 1972
|
Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another | 6 ALR (AD) 143 |
Article 35(5) |
In case of malafide the matter of non disclosure will be justifiable one
but for the clear constitutional sanction a non—disclosure of fact that
was considered to the prejudice of the detenu ought to be regarded as a
violation of basic principle of natural justice.
|
Habiba Mahmud Vs. Bangladesh | 45 DLR (AD) 89 |
Article 35(5) |
Person dies in police custody or jail Authority–
|
Ministry of Law, Justice & Parl. Afrs. =VS= BLAST | 3 LM (AD) 274 |
Article 35 |
Submission that the principle of 'double–jeopardy is applicable to punishment of government servant in a departmental proceeding is not acceptable. Protection in respect of trial and punishment as a bar to conviction and punishment more than once for the same offence as referred to in this article relates to criminal prosecution only. Md Serajul Islam vs The Director General of Food 42 DLR (AD) 199. |
Md Serajul Islam vs The Director General of Food | 42 DLR (AD) 199 |
Article 35( 4) |
The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique and anr vs Ministry of Defence & ors 54 DLR (AD) 154. |
Abu Siddique and anr vs Ministry of Defence & ors | 54 DLR (AD) 154 |
Article 35(5) |
In case of malafide the matter of non–disclosure will be justiciable one. But for the clear constitutional sanction a non–disclosure of fact that was considered to the prejudice of the detenu ought to be regarded as a violation of basic principle of natural justice. Habiba, Mahmud vs Bangladesh 45 DLR (AD) 89. |
Habiba, Mahmud vs Bangladesh | 45 DLR (AD) 89 |
Articles 35(1) and 102 |
Constitution of Bangladesh, 1972
|
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 |
Article 35 |
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 |
Mahmudur Rahman Vs Bangladesh & ors | 9 SCOB [2017] HCD 119 |
Article 36 |
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 |
Ali Imam Vs. The Judge, Artha Rin Adalat & ors | 19 SCOB [2024] HCD 76 |
Article 36 |
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 |
Ali Imam Vs. The Judge, Artha Rin Adalat & ors | 19 SCOB [2024] HCD 76 |
Article 36 |
57 of the Artha Rin Adalat Ain, 2003 read with Article 36 of the
Constitution:
|
Ali Imam Vs. The Judge, Artha Rin Adalat & ors | 19 SCOB [2024] HCD 76 |
Article 36 |
The Fundamental Rights of freedom of movement attached to a citizen pervade and extend to every inch of the territory of Bangladesh stretching upto the continuental shelf: Per Mustafa Kamal J delivering the Full Court Judgment. Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others 49 DLR (AD) 1. |
Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others | 49 DLR (AD) 1 |
Article 36 |
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 |
Kazi Mazharul Islam Vs. Bangladesh & ors. | 4 SCOB [2015] HCD 115 |
Article 36 |
Constitution of Bangladesh, 1972
|
Durnity Daman Commission, Dhaka =VS= G.B. Hossain | 11 LM (AD) 97 |
Article 38 |
The initial burden of establishing a right claimed under Article 38 is on the applicant and then the burden moves on to the respondents if they take the plea of reasonable restriction. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. |
Asaduzzaman vs Bangladesh | 42 DLR (AD) 144 |
Article 38 |
Cannot be invoked for support, sustenance or fulfilment of every object of an association. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. |
Asaduzzaman vs Bangladesh | 42 DLR (AD) 144 |
Article 38 |
Freedom of associationArticle 38 guaranteeing this freedom cannot be invoked for support, substance or fulfillment of every object of an association. Though the Red Crescent Society is an association of persons it is · an association sui geners. As the appellant's right does not flow from his right to form an association he cannot claim any right under Article 38. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. |
Asaduzzaman vs Bangladesh | 42 DLR (AD) 144 |
Article 38 |
The right to constitute a separate trade union for workers with international affiliations is not provided for either in the unamended Industrial Relations Ordinance, 1969 or in the Amendment Act, 1990. the amended legislation cannot be said to be violative of the fundamental right on the ground of loss of international affiliation. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. |
Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others | 45 DLR (AD) 122 |
Article 38 |
The right to form an Association or union embraces the right to form a trade union and also the right to continue and· carry on the activities of the association. The right is subject only to reasonable restrictions in the interest of morality or public order. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. |
Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others | 45 DLR (AD) 122 |
Articles 38 and 102 |
Appellant cannot claim protection under Article 38 of the Constitution as his right does not flow from his right to form an association. He can claim protection under Article 102 of the Constitution for enforcement of his statutory right but he cannot claim that his right under the statute cannot be modified, altered or affected by an amendment of the statute. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. |
Asaduzzaman vs Bangladesh | 42 DLR (AD) 144 |
Article 39 |
Freedom of thought and conscience and speech–
|
The State =VS= Mr. Swadesh Roy | 2 LM (AD) 576 |
Article 39 |
Contempt— Limits of the press — Freedom of the press is recognized in our constitution—a court is to suffer criticism made against it only in the exceptional cases of bad faith or ill motive it will resort to law of contempt. Saleem Ullah Vs State 44 DLR (AD) 309. |
Saleem Ullah Vs State | 44 DLR (AD) 309 |
Articles 39 & 102 |
"Person aggrieved" – Its meaning and dimension–In our Constitution the petitioner seeking enforcement of a fundamental right must be a person aggrieved. Our Constitution is not at pari materia with the Indian Constitution on this point. The decisions of the Indian jurisdiction on public interest litigation are hardly apt in our situation. The petitioner is not acting pro bona publico but in the interest of its members. The real question in this case is whether the petitioner has the right to move the writ petition in a representative capacity. The High Court Division has rightly relied upon the case of 29 DLR 188 where the question has been answered in the negative. The petitioner may represent the employers in the Wage Board but its locus standi to act on behalf of the Constitution is just not there. Bangladesh Sangbadpatra Parishad (BSP) vs Bangladesh 43 DLR (AD) 126. |
Bangladesh Sangbadpatra Parishad (BSP) vs Bangladesh | 43 DLR (AD) 126 |
Article 39(2) |
Fundamental right can never be invoked for violating any provision of law or other man's right under the law. Bangladesh National Curriculum and Text– Book Board vs AM Shamsuddin & others 48 DLR (AD) 184. |
Bangladesh National Curriculum and Text– Book Board vs AM Shamsuddin & others | 48 DLR (AD) 184 |
Article 39(2) |
The right to freedom of speech and expression as claimed by the writ petitioners does not extend to the right of printing and publishing of 'note–books' or 'text–books' prepared and published by the Text Book Board under statutory authority. The Court was not justified in declaring the impugned Act to be ultra vires of Article 39(2) of the Constitution. Bangladesh National Curriculum and Text–Book Board vs AM Shamsuddin & others 48 DLR (AD) 184. |
Bangladesh National Curriculum and Text–Book Board vs AM Shamsuddin & others | 48 DLR (AD) 184 |
Article 39 |
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 |
The State Vs. ACC and ors | 17 SCOB [2023] HCD 40 |
Article 39 |
In a democracy, there should be an efficient and fearless press to act as
watchdog of democracy:
|
The State Vs. ACC and ors | 17 SCOB [2023] HCD 40 |
Article 39 |
The media and the journalists are constitutionally and legally authorised
to publish news reports on corruption and corrupted practices:
|
The State Vs. ACC and ors | 17 SCOB [2023] HCD 40 |
Article 40 |
Right to livelihood–
|
Chief Engineer, REB =VS= Biswajit Ganguly | 3 LM (AD) 192 |
Article 40 |
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 |
Eastern Money Changer Vs. Bangladesh Bank & ors | 3 SCOB [2015] HCD 42 |
Article 41 |
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 |
Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors | 19 SCOB [2024] HCD 41 |
Article 41 |
“We recommend that a Unified Marriage and Divorce Act for all the
citizens should be enacted by the Parliament keeping in pace with the
modern time" -that the Said recommendation has violated fundamental right
of the community as contended by the leave petitioner.
|
Legal Aid Bangladesh. Vs. Eva Chowdhury & Ors | 11 BLT (AD) 180 |
Article 41 |
It is in no way desirable for the higher court, whose decision has binding effect on the courts subordinate to it, to embark on a matter which is totally unconnected with the subject matter before it. Islamic Law Research Centre and Legal Aid Bangladesh vs Eva Sunanda Chowdhury and others 54 DLR (AD) 168. |
Islamic Law Research Centre and Legal Aid Bangladesh vs Eva Sunanda Chowdhury and others | 54 DLR (AD) 168 |
Article 42 |
Requisition/acquisition of the suit plot compensation–
|
Government of Bangladesh =VS= Md Alamgir Hossain | 7 LM (AD) 146 |
Article 42(1) r/w article 31 |
The Constitution of Bangladesh, 1972
|
Jamuna Knitting and Dying Ltd. =VS= Messer’s Y. K. Co. Textile Ltd | 14 LM (AD) 139 |
Articles 42 & 102 |
The writ petitioners can come directly to the High Court Division for protection of their fundamental right even though an alternative remedy is available. Government of Bangladesh, represented by Ministry of Works and another vs Syed Chand Sultana and others 51 DLR (AD) 24. |
Government of Bangladesh, represented by Ministry of Works and another vs Syed Chand Sultana and others | 51 DLR (AD) 24 |
Article 42 |
The Constitution of Bangladesh, 1972
|
Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher | 3 LM (AD) 478 |
Article 43(a) |
The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh and others vs Hussain Mohammad Ershad 52 DLR (AD) 162. |
Government of Bangladesh and others vs Hussain Mohammad Ershad | 52 DLR (AD) 162 |
Article 43(a)– |
Search conducted with a duly issued search warrant by a competent court under section 96 CrPC is a reasonable restriction on the rights enumerated in Article 43(a) of the Constitution. But without complying with the requirement of section 96 CrPC no such restriction on the right of a citizen can be imposed. 52 DLR (AD) 172. |
52 DLR (AD) 172 | |
Articles 44 and 94 |
Doctrine of basic feature–In our context, it has indigenous and special difficulties for acceptance–'Basic features' in relation to which period–What were basic to our Constitution when it was promulgated on 16–12–1972–'Basic features' have been varied in such abandon and with such quick succession · that the credibility in the viability of the theory of fundamentally is bound to erode– The experience of abandoning this Supreme Court and establishing two altogether different Courts, the Supreme Court and the High Court, in a unitary state by Proclamation Order No. IV of 1976 and then again doing away with the same by restoring the integrated Supreme Court by Proclamation Order No. I of 1977 was cited as instances of the non–viability of the theory. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 44 and 94 to 116 |
The impugned amendment has violated Articles 44 and 102– It has disrupted the provisions relating to the judiciary embodied in Article 94 by adding alien concept by way of introducing 'Permanent Benches'–The amendment has also expressly contravened Article 101. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 44 and 114 |
Interpretation of constitutional amendment–Articles 44 and 114 to be read together to find out the mandate of the Constitution–The entire Constitution is to be looked into in interpreting the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 44(1)(2), 100(5), 102 and 114– |
Two sests of Courts created by sub–article(5) of Article 100–Constitutionality of amendment–The amendment is hit by Article 114–Setting up of subordinate Courts by law occurring in Article 114 must not be of co–ordinate jurisdiction or compete with Article 44(2) which speaks of "without prejudice to the power of HC Division under Article 102". Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 45 |
A member of the disciplined force can move the High Court Division for enforcement of fundamental rights subject to the provisions of Article 45. Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladesh and another 47DLR (AD) 1. |
Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladesh and another | 47 DLR (AD) 1 |
Articles 45, 102 & 134 |
A member of any disciplined force will not be entitled to any remedy if he is aggrieved by any decision of a Court unless the decision is coram non Judice or malafide, or by any order affecting his service or by order of the President or by any violation of fundamental right resulting from application of a disciplinary law or the maintenance of discipline. Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladesh and another 47 DLR (AD) 1. |
Col Md Hashmat Ali (Retired) of Bangladesh Army Medical Corps vs Government of Bangladesh and another | 47 DLR (AD) 1 |
Article 45 |
The fundamental rights available in Part III of the Constitution cannot be invoked by a member of a disciplined force if any law prescribed a provision limited for the purpose of ensuring the proper discharge of his duty or maintenance of that force. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment |
Bangladesh & others =VS= Md. Abdus Satter & others | 1 LM (AD) 378 |
Article 45 |
The fundamental rights available in Part III of the Constitution cannot be invoked by a member of a disciplined force if any law prescribed a provision limited for the purpose of ensuring the proper discharge of his duty or maintenance of that force. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment |
Bangladesh Vs. Md. Abdus Satter and others | 1 SCOB [2015] AD 17 |
Article 45, 102 |
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 |
Bangladesh Vs. Md. Abdus Satter and others | 1 SCOB [2015] AD 17 |
Article 47A (2) |
A review petition filed by those subject to regimentation clogged by Article 47A (2) of the Constitution, the Appellate Division is to ensure that in the pretext of review, re-hearing of the whole matter is not initiated. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment |
Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka | 4 LM (AD) 392 |
Article 47(3) and 102(3) |
In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability. It is true that the High Court Division has not said anything as to the vires of the sections of the Act, 1973 challenged in the writ petition, but it disposed of the same in the manner as quoted hereinbefore after making some observations as stated earlier; there may be a misgiving in the mind of litigant people that a writ petition challenging a provision of the Act, 1973 or any action of the International Crimes Tribunal, is amendable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. Moreso, the learned Judges cannot arrogate to themselves as advisors and it was not an act of discreet on their part to advise the writ-petitioners to redress their grievance by invoking article 104 of the Constitution. …Bangladesh Vs. Shireen Pervin Huq and others, (Civil), 1 SCOB [2015] AD 22 ....View Full Judgment |
Bangladesh Vs. Shireen Pervin Huq and others | 1 SCOB [2015] AD 22 |
Article 47(2) |
Bangladesh Bank (Staff) Regulations–Bangladesh Bank Staff Regulations are protected legislation like its parent law, the Bangladesh Bank Order. The constitutionality of these Regulations stand beyond any question and cannot be declared void being inconsistent with the equality clause of the Constitution. Bangladesh Bank and others vs Mohammad Abdul Mannan 46 DLR (AD) 1. |
Bangladesh Bank and others vs Mohammad Abdul Mannan | 46 DLR (AD) 1 |
Article 47(3) and 102(3) |
In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability. It is true that the High Court Division has not said anything as to the vires of the sections of the Act, 1973 challenged in the writ petition, but it disposed of the same in the manner as quoted hereinbefore after making some observations as stated earlier; there may be a misgiving in the mind of litigant people that a writ petition challenging a provision of the Act, 1973 or any action of the International Crimes Tribunal, is amendable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. Moreso, the learned Judges cannot arrogate to themselves as advisors and it was not an act of discreet on their part to advise the writ-petitioners to redress their grievance by invoking article 104 of the Constitution. .....Bangladesh =VS= Shireen Pervin Huq & others, (Civil), 2016-[1 LM (AD) 195] ....View Full Judgment |
Bangladesh =VS= Shireen Pervin Huq & others | 1 LM (AD) 195 |
Article 48(3), 52, 55, 95 and 98 |
Ensuring the independence of judiciary and making it separate from the
executive were two primordial intentions of our Constitution framers:
|
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Articles 48, 65(1), 94 and 142 |
Interpretation of statute–Amicus curiae's inerpretation of the use of prepositions "of' and "for" in case of President, Parliament and Supreme 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. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Art. 48(4), 52, 53, 56, 66, 119(1)(a), 133,134,152 |
Constitution of Bangladesh, 1972
|
Adv. M.A. Aziz Khan =VS= Election Commission, Bangladesh | 16 LM (AD) 538 |
Part IV, V and VI (Article 48-117) |
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 |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 48(3) |
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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 49 |
The Constitution of Bangladesh, 1972
|
Ataur Mridha =VS= The State | 3 LM (AD) 513 |
Articles 51, 102 |
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 |
Government of Bangladesh =VS= Syed Fazle Elahi Obhi | 12 LM (AD) 299 |
Article 51 |
(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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 52(1) |
President’s Immunity—President’s Immunity from Criminal Prosecution — The immunity is available to the President while he is in office. Hussain Mohammad Ershad Vs. The State, 1 BLD (AD) 55. |
Hussain Mohammad Ershad Vs. The State, | 1 BLD (AD) 55 |
Article 52(1) |
Immunity of President from criminal prosecution while in office—
|
Hussain Mohammad Ershad Vs. The State. | 11 BLD (AD) 55 |
Articles 55(2) and 102 |
When the detenu alleges that his detention was not ordered by the appropriate person, the Government is required to disclose necessary facts to satisfy the Court that the order was passed by the proper person in accordance with the Rules of Business. Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52. |
Bangladesh vs Dr Dhiman Chowdhury and others | 47 DLR (AD) 52 |
Articles 55(2)(4) & 133 |
In our country as well the void created by the absence of law and rules under Article 133 can be filled up by executive power under Article 55(2) expressed to be taken in the name of the President (Article 55(4). Such exercise of power is not unknown or without precedent in our jurisdictions. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. |
Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others | 50 DLR (AD) 27 |
Article 55(4) |
The Cabinet decision dated 3–11–91 without publication in the Official Gazette cannot be treated as a guideline and add thereto that it was not an executive action in terms of Article 55(4) of the Constitution. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. |
Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others | 50 DLR (AD) 27 |
Article 56(3), 57 and 58 |
The government cannot have any break in its continuity:
|
Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors | 19 SCOB [2024] HCD 66 |
Articles 56(6) & 133 |
The constitutional provisions in Article 133 will govern the terms and conditions of service of superior posts. Rules of Business will only be supplemental thereto. No Committees could be constituted in exercise of any "exceptional powers" or "inherent power" or "sovereign executive power" of the Government. Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. |
Bangladesh, represented by the Secretary, Ministry of Establishment vs Shafiuddin Ahmed and 2 others | 50 DLR (AD) 27 |
Article 56(3) and 57 |
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 |
Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors | 19 SCOB [2024] AD 10 |
Article 56(3) and 148 (3) |
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 |
Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors | 19 SCOB [2024] AD 10 |
Article 58(2) (now repealed) |
The nature of the document of which the petitioner pleads protection and the related matters being in the facts of the case a mixed question of fact and Law, it is not yet time to consider this constitutional question while the document is still not ready for observation with all its factual clothings. Moudud Ahmed vs State 48 DLR (AD) 42. |
Moudud Ahmed vs State | 48 DLR (AD) 42 |
Articles 58 C(3), (4), (5) and (6) |
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 |
Abdul Mannan Khan =VS= Government of Bangladesh | 16 LM (AD) 122 |
Articles 59 & 60 |
Local Government– It is meant for management of local affairs by locally elected persons. If government officers or their henchmen are brought to run the local bodies, there is no sense in retaining them as Local Government bodies. Considering the origin, growth and development of local government institutions at different levels of the administration over one and a half centuries, it is found that Local Government is an integral part of the democratic polity of the country. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Articles 59, 60, 102 & 152(1) |
Local bodies– Their composition–During the long gap of time local government in various forms and names were constituted by the authority of Martial Laws. Now that the provisions of the Constitution are back all local bodies shallhave to fulfil the constitutional requirements. Upazila being not an administrative unit an essential constitutional requirement for the Upazila Parisahd to be a local government is not fulfilled. It is not also wholly an elected body. This Parishad not being a local body under the Constitution its abolition violates no provision of the· Constitution so as to attract the relief under Article 102 of the Constitution. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Articles 59 & 152(1) |
"Administrative unit" Article 152(1) has given a particular meaning of "Administrative unit". In this Article the words "district or any other area" are to be read conjunctively, and if it is done, a district is found to be an administrative unit, and for the purpose of Article 59, that is to say, for establishing a Local Government there, no designation by law is necessary. But as regards "any other area" it will be an "administrative unit" only ifit is specifically designated as such by law. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Article 61(1)(b) |
To uphold the contention of Asrarul Hossain that even if a member remained absent without leave of the House for ninety consecutive sitting days he may not vacate his seat because the sitting days are · never consecutive in the sense of being continuous would be to render this article a dead letter which as a rule the court will never accept. Special Reference No.I of 1995. 47 DLR (AD) 111. |
47 DLR (AD) 111 | |
Article 65 |
It is the Supreme Court alone which is empowered to examine whether or not any law is inconsistent with the constitution. The Parliament has given the legislative power under article 65 to promulgate law but this power is circumscribed by limitations and if it exercises any power which is inconsistent with the constitution, it is the Supreme Court which being the custodian of the constitution and is manned by the Judges who are oath bound to protect the law to examine in this regards. The Supreme Court is the only organ of the State to see that any law is in consonance with the constitution. So, where the constitution confers the power upon the Supreme Court to strike down laws, if found inconsistent, such power cannot be delegated to a Tribunal created under subordinate legislation. In the alternative, the Supreme Court cannot delegate its power of judicial review of legislative action to a Tribunal. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment |
Bangladesh & ors Vs Sontosh Kumar Shaha & ors | 6 SCOB [2016] AD 1 |
Article 65(1) |
The High Court Division wrongly held that section IOA of the Act provides arbitrary power without a provision for hearing. It is the policy of the legislature to make an enactment to that effect. It cannot be said that the law is bad because it is not in consonance with the principle of natural justice and it is harsh and arbitrary. Bangladesh Krishi Bank vs Meghna Enterprises and another 50 DLR (AD) 194. |
Bangladesh Krishi Bank vs Meghna Enterprises and another | 50 DLR (AD) 194 |
Articles 65(1) & 83 |
Under our Constitution there is considerable intermingling of the governmental functions, or large part of the legislative function is carried by Ordinances promulgated by the Head of the State and in considering the validity of the impugned amendments and the notifications issued by the National Board of Revenue under the provisions of section 3(4) of the Excise and Salt Act, 1944 they had the sanction oflaw and, as such, taxation power was also expressly saved by Article 83 of the Constitution. Bangladesh and ors vs Eastern Beverage Industries Ltd and another 56 DLR (AD) 153. |
Bangladesh and ors vs Eastern Beverage Industries Ltd and another | 56 DLR (AD) 153 |
Article 65(3)– |
Reservation of seats for women in the Parliament–There is no substance in the contention that after the period for reservation of thirty seats expired, no extension as made by the Constitution (Tenth Amendment) Act, 1990 could be done. Clause 3 of Article 65 was never deleted. It remained in the Constitution. The substitution of clause 3 by the new one cannot be challenged as ultra vires. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD) 109. |
Dr. Ahmed Hussain vs Bangladesh | 44 DLR (AD) 109 |
Article 65 |
It is the Supreme Court alone which is empowered to examine whether or not any law is inconsistent with the constitution. The Parliament has given the legislative power under article 65 to promulgate law but this power is circumscribed by limitations and if it exercises any power which is inconsistent with the constitution, it is the Supreme Court which being the custodian of the constitution and is manned by the Judges who are oath bound to protect the law to examine in this regards. The Supreme Court is the only organ of the State to see that any law is in consonance with the constitution. So, where the constitution confers the power upon the Supreme Court to strike down laws, if found inconsistent, such power cannot be delegated to a Tribunal created under subordinate legislation. In the alternative, the Supreme Court cannot delegate its power of judicial review of legislative action to a Tribunal. It is only on the principle that the donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one or in the alternative a delegatee cannot exercise same or more power than the delegator. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment |
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 65 |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 65 |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 66 |
Embezzlement of State money by a person who was the President of the country and using the same for his personal benefit or living or having properties disproportionate to his known source of income will definitely come within the ambit of moral turpitude. Hussain Mohammad Ershad vs Zahedul ls/am Khan and others 54 DLR (AD) 1. |
Hussain Mohammad Ershad vs Zahedul ls/am Khan and others | 54 DLR (AD) 1 |
Article 66(2)( d) |
The Returning Officer, having taken the view that because of the pendency of appeals respondent No 3 will not be disqualified from contesting the ensuing election, it cannot be said that he had no authority to so decide and that his decision suffers from malice in law. If an alternative interpretation is possible with regard to the issue in question, namely, the effect 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. |
AKM Mayeedul Islam vs Bangladesh Election Commission and others | 48 DLR (AD) 208 |
Article 66(2)(dd) |
There is much force in the submission that by seeking election to the Parliament the respendent has accepted the order of his dismissal which terminates his relationship with the office of profit in the service of the Republic. Bangladesh, represented by Secretary, Establishment Division & ors vs Mahbubuddin Ahmed 50 DLR (AD) 154. |
Bangladesh, represented by Secretary, Establishment Division & ors vs Mahbubuddin Ahmed | 50 DLR (AD) 154 |
Article 66(2)(c), 102 r/w |
Constitution of Bangladesh, 1972
|
Mohammed Abdul Wahed =VS= Kazim Uddin Ahmmed | 16 LM (AD) 663 |
Article 66(2)(d) |
Constitution of Bangladesh
|
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 66(2) |
Constitution of Bangladesh
|
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 67 |
When a person is convicted of and sentenced to suffer imprisonment for a minimum period of two years he cannot be elected a Member of the Parliament and cannot retain his position as such Member. Hussain Mohammad Ershad vs Zahedul Islam Khan and others 54 DLR (AD) 1. |
Hussain Mohammad Ershad vs Zahedul Islam Khan and others | 54 DLR (AD) 1 |
Article 67(1)(b) |
'Absent', meaning and consequence of–If a member or members of Parliament remain absent without the leave of the Parliament for ninety consecutive sitting days he or they do it on pain of vacating his or their seats. The philosophy behind this is that his or their constituencies cannot be left unrepresented in the Parliament for an indefinite period. There must be by–election in those seats for electing new members in their places to represent the people. This is the democratic and constitutional process. Special Reference No.I of 1995. 47 DLR (AD) 111. |
47 DLR (AD) 111 | |
Article 67(1)(b) |
Walkout, boycott– They mean the same thing i.e .. absent and result in vacation of seat– Walkout, consequent period of non–return and boycott, call it by whatever epithet, mean the same thing, i.e. absent as provided in Article 67(1)(b) and would result in vacation of seat in the parliament if the other conditions are present, namely, being absent without the leave of parliament, for ninety consecutive sitting days. Special Reference No. I of 1995. 47 DLR (AD) 111. |
47 DLR (AD) 111 | |
Article 67(1)(b) |
In computing the period of ninety consecutive sitting days the period between two sessions and even adjournments in a particular session between sitting days should be excluded. Special Reference No I of 1995. 47 DLR (AD) 111. |
47 DLR (AD) 111 | |
Article 68 |
When the power is there in the Constitution, non–invocation of the specific power in the concerned legislation will not make the privilege granted outside of the scope of the concerned President's Order. Dr Ahmed Husain vs Bangladesh, represented by Secretary, Minsitry of Law and Justice 51 DLR (AD) 75. |
Dr Ahmed Husain vs Bangladesh, represented by Secretary, Minsitry of Law and Justice | 51 DLR (AD) 75 |
Article 70 |
Whether the Sixteenth Amendment, the Supreme Court undermined the authority
of the Parliament by keeping the Supreme Judicial Council in the
constitution in its judgment and hence, it has thereby destroyed the basic
structure of the Constitution.
|
Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others | 10 ALR (AD) 1 |
Article 72(3), 102, 123(3), 148(3) |
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 |
Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad | 16 LM (AD) 500 |
Article 79 |
The Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Md. Masud Rana | 15 LM (AD) 616 |
Article 79 |
জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪
|
Government of Bangladesh =VS= Md. Masud Rana | 15 LM (AD) 616 |
Article 80 |
Power of the legislature to make law and validate invalid law—
|
15 MLR (AD) 299 | |
Article 80-92 (Chapter II of Part VI) |
The High Court Division as well as the Appellate Division is competent
enough to give necessary directions to follow the mandate of the
Constitution:
|
Bangladesh Vs. Md. Ataur Rahman & ors. | 9 SCOB [2017] AD 1 |
Article 83 |
Constitution of Bangladesh, 1972
|
Ministry of Finance, BD =VS= Yahya A. Z. Khondoker | 14 LM (AD) 112 |
Article 83 & 152(1) |
The meaning of the word ‘tax’ has been used in a comprehensive sense to mean and include all money raised by taxation and includes those known as ‘rates’ or other charges levied by local authorities under statutory powers. (Gouse v. Kerala, AIR 1980 SC 271). A tax cannot be levied or collected merely by an executive fiat or action without there being a law to support the same. (Kerala v. Joseph, AIR 1958 SC 296). Article 83 contains in clear terms that “by or under the authority of an Act of Parliament”. Therefore, no tax can be levied without any sanction of law. Under this article not only levy but also collection of tax must be sanctioned by or under the authority of an Act of Parliament. The expression ‘levy’ includes creation of liability or fixation of its quantum and the expression ‘collect’ refers to physical realization of tax. (Somaiya Organics v. UP, AIR 2001 SC 1723). ‘It is the States which were protected as a result of the declaration for otherwise on the conclusion that the impugned Acts lacked legislative competence the result would have been that any tax collected would have become refundable as no state could retain the same because levy would be without the authority of law and contrary to Article 265 of the Constitution’, the court observed. Article 265 is couched in similar language of article 83 of our Constitution. Moreover, under the revenue laws, there are provisions for collecting revenue at a given rate fixed by Finance Act and also for collecting fine for non-payment of revenue. But there is no scope for collecting any lump sum amount. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment |
Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd. | 3 LM (AD) 106 |
Article 83 |
Not only tax must be levied validly, its collection must also be made in accordance with an Act of Parliament. When an Act of Parliament provides that a tax shall be collected in such manner as may be prescribed by rule, no tax can be collected until rules are made. (Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321). Article 83 gives protection against arbitrary collection of tax. When an assessment is made in an arbitrary manner there is no collection of tax in accordance with law. The language of article 83 clearly implies that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not complied with the liability to pay the tax cannot be said to be according to law. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment |
Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd. | 3 LM (AD) 106 |
Article 83 |
As per constitution or law, no officer of DGFI or any officer of intelligence forces has/had any right or authority to recover such money as tax or VAT. Article 83 totally prohibits in such process of realising any money otherwise than Act of Parliament. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment |
Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd. | 3 LM (AD) 106 |
Article 84, 85, 87 & 90 |
Article 88 has no manner of application, inasmuch as, article 88 speaks about expenditure to be charged upon Consolidated Fund. The expression expenditure has been used in article 87. It says that in every financial year there shall be laid, a statement of the estimated receipts and expenditure of the government for that year before the Parliament. The amount received by the government must be against revenues, loan etc. and not otherwise. As observed above, public expenditures are classified in two categories, expenditure charged on Consolidated Fund and the charges granted by Parliament on an annual basis. The expenditure mentioned in article 88 should be read with article 87. This expenditure is public expenditure. If the money recovered and deposited with the Bangladesh Bank are not part of Consolidated Fund, no Act of Parliament is necessary for returning the said money under articles 85 or 90 of the Constitution, inasmuch as, the same were illegally extorted from the writ petitioners without any sanction of law. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment |
Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd. | 3 LM (AD) 106 |
Article 84(1) & 144 |
Sometimes it happens that all the money required for the public expenditures cannot be raised by taxation and the government has to resort to borrowing. Article 144 gives authority to the executive to enter into contract and the government can borrow money for which sanction of Parliament is not necessary. All borrowings in a financial year are shown in the budget and in approving the budget the Parliament approves the borrowings. All borrowings do form part of the Consolidated Fund (article 84(1)) and Parliament’s authorization is necessary for expenditure from the Consolidated Fund. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106] ....View Full Judgment |
Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd. | 3 LM (AD) 106 |
Article 88 (e) |
Decretal amount shall be paid from the consolidated fund but only after it
is included in the annual financial statement of the appropriation bill—
|
Bangladesh Bank represented by the Governor Vs. Mrs. Rana Awan and others | 11 MLR (AD) 302 |
Article 90(1) |
Article- 90(1) read with Code of Civil Procedure, 1908 order-21 Rules 52
and 56 read with
|
Bangladesh Bank Vs. Mrs. Rana Awan & Ors | 15 BLT (AD) 260 |
Article 93 |
Making an Ordinance– Plea of malafide–intention of the law making authority, whether the President in the case of an Ordinance, or the Parliament in the case of enacting a legislation, is irrelevant if they got power to make Ordinance or act on a given subject. When an Ordinance was made an Act of the Parliament within the prescribed time, the ground for assailing the Ordinance is no longer available. Kudrat–e–Elahi Panir vs Bangladesh 44 DLR (AD) 319. |
Kudrat–e–Elahi Panir vs Bangladesh | 44 DLR (AD) 319 |
Article 94 |
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. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 94 |
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. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 94 |
Independence of judiciary vital for democracy, maintenance of rule of law and social justice. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 94, 98, 106, 109, 111 and 112 |
In the Constitution the High Court Division is vested with plenary power without injection of any territorial conception–High Court Division is an integral part of the Supreme Court of Bangladesh. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 94, 100-107(3), 108, 109 and 110 |
Articles 94, 100, 101. 102, 103, 104, 105, 106, 107(3), 108, 109 and
110–
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 94, 101, 102 and 111 |
High Court Division as an integral part of Supreme Court has lost its original character as well .as most of its territorial jurisdiction by the impugned amendment. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 94 and 152 |
High Court Division and High Court–Popular notion–Distinction
between–Expression "Division"–Legal significance of–Two Divisions of
the Supreme Court–Word "comprising" occurring in Article
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 94(4) & 116A |
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. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Articles 94(4) and 116A |
The District Courts will be at liberty to take immediate step to fill up
the vacant sanctioned posts for smooth functioning of the courts without
taking prior approval or clearance from Ministry of law and Justice as well
as the Ministry of Public Administration.
|
Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others | 1 LM (AD) 267 |
Article 95(2)(a) |
(“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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Articles 95 and 98 |
COURT’S ORDER
|
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 95(2)(a)&(b) |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 95 |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 95 |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 95 |
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 |
Raghib Rauf Chowdhury Vs Bangladesh & ors | 9 SCOB [2017] HCD 34 |
Article 95(2)(a) |
(‘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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 48, 51 and 95 |
(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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 95 |
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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Articles 95, 98 and 116 |
(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 |
A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors | 19 SCOB [2024] AD 21 |
Article 96(4) |
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 |
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 96(4) |
Our conclusion is as under:
|
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 96(5) |
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 |
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 96(4) |
The Constitution
|
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Articles 96 & 99 |
Article 99 though provided for appointment of a retired judge in any
"judicial or quasi–judicial office" has not provided for any procedure
for such appointment. The concept of judicial independence suggests that
his appointment along with terms and conditions of service be governed
under Article 96 as in the case of a sitting judge.
|
Abdul Bari Sarkar vs Bangladesh | 46 DLR (AD) 37 |
Article 96(4) |
Code of Conduct of the Judges– The Supreme Judicial Council enjoins the
power as per provision of clause (4) of Article 96 to prescribe the ‘Code
of Conduct’ of the Judges–
|
Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman | 4 LM (AD) 231 |
Article 96(5) |
The High Court Division cannot sit over the judgment of the Council. As per
provisions of the constitution after the recommendation of the Supreme
Judicial Council the President is left with no discretion other than to
accord the recommendation. It is not correct to hold the view that the
Council’s opinion is expressly beyond the scope of article 96(5) of the
constitution–
|
Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman | 4 LM (AD) 231 |
Article 96 |
Code of Conduct– We reformulate the Code of Conduct in exercise of powers
under article 96 as under:
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 96 |
Supreme Judicial Council–
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 96 and 142 |
It is interesting to note that article 96(1), which relates to the age of retirement of judges of the Supreme Court, was amended on 11.11.1986 (when the country was not under democratic government) changing the retiring age from 62 years under the 1972 Constitution to 65 years. On 17.05.2004, article 96(1) was again amended changing the age of retirement of Supreme Court Judges from 65 to 67 years, this time by a democratically elected government. The Fifteenth Amendment of 2011 gave a seal of approval to article 96(1) of the Constitution of 2004 as well as the Supreme Judicial Council. If we are to accept the argument of the learned Attorney General about return to the 1972 Constitution, then we have to question why article 96(1) should not also revert to the 1972 Constitution, and why he is not advocating for that also. (Muhammad Imman Ali, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 96 |
The Sixteenth Amendment impairs the independence of the judiciary by making the judiciary vulnerable to a process of impeachment by the legislature which would be influenced by political influence and pressure. (Syed Mahmud Hossain, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 99 |
Prohibition on holding office of profit in the service of the Republic by a
Supreme Court Judge—
|
Abdul Bari Sarker Vs. Bangladesh | 46 DLR (AD) 37 |
Article 100 (old) |
The impugned amendment will go off the Constitution and the old Article 100
will stand revived with its provision for holding of sessions–Sessions
means holding of Court in full. Anwar Hussain Chowdhury vs Bangladesh 41
DLR (AD) 165.
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles l00 (old) and Article 107 |
Holding "Sessions" must be regulated by law–Article 100 does not mention "consultations"– How to hold "Sessions"– To hold sessions or not is the end result of judicial decision to be taken in the full Court. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
Amended Article 100– Nature of the Supreme Court– Contention arose because the impugned legislation has set up Permanent Benches. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
It is only in the matter of seeking approval that Chief Justice brings the matter to the notice of the President because logistics and administrative matters are involved. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
Concept of matters arising out of areas as mentioned in rules framed by the Chief Justice is akin to the concept of the cause of action in the Civil Procedure Code. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
Supreme Court's constitutional responsibility– Restoration of old Article 100 in its original position "along with the Sessions of the High Court Division" by striking down the amended Article 100– Indemnity of the judgments, orders, decrees passed under amended Article 100 as past and closed transactions made by express order of the Court. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
Territorial units may claim status of federating units––Court's apprehension about the perils of regionalism fraught with the possibility of dismantling the fabric of the Republic. The amendment purports to create territorial Units which eventually may claim the status of federating Units thereby destroying the very fabric of Unitary Republic. In other words, by sowing the seeds of regionalism the next step can be dismantling the fabric of the republic. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100 |
The decentralisation of the High Court Division which started under the Martial Law Regime has now been given constitutional recognition by the Eighth Amendment Act. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 100, 107, 108, 109, 110, 111 |
Territorial divisions for the jurisdiction of Benches and High Court
Division at the permanent seat–No common authority over them –Writs
issued by them will be limited in operation to their respective
areas–Admiralty jurisdiction of the High Court Division cannot be
assigned to any of the areas–Territorial waters belong to the Republic
and not to any district High Court Division's power to transfer under
Article 110 has been negative. Superintendence and control under Article
109 has also been affected– Binding effect of judgment under Article 111
has also been split up– Repugnancy thus resulted is irreconcilable.
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 100,107(1) and 107(3) |
Rule making power of the Supreme Court–Holding of 'Sessions'– Chief Justice to take decision to hold Sessions in accordance with rules framed by the Court– The President as the highest executive can advise the Chief Justice as to the viability of die proposal. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 100 and 142(1A) |
Absence of long title– Since the amended Article 100 has been found bad on merit for having created seven Courts of exclusive jurisdiction, the absence of long title justified the contention that it was deliberately done to confuse the members of Parliament as to what was being carried through. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(3) |
By the Amendment Act original Article 100 had been displaced and a complete new dispensation created by creating Permanent Benches at six designated places (Article 100(3)) then comes sub–article (5). Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(5) |
The pre–requisite in Article 100 (5) is consultation, the absence of such consultation is demonstrative of arbitrariness in setting up of Permanent Benches which is unconstitutional. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(5) |
Interpretation of the Constitution– Settled principles to be kept in mind–Permanent Benches to which President assigned the areas with jurisdiction under Article 100(5)– Theory of separation of power and cherished canon of independence of judiciary militated against. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(5) |
In Article 100(5) it has been done other way about, namely, the President is to assign area in consultation with Chief Justice. The learned Attorney–General has placed before us a copy of the minutes which shows that it was initiated by the Law Ministry for setting up Permanent Benches in those very six places which were selected earlier by the Martial Law period and the Chief Justice only gave consent by saying without taking the opinion of the High Court Division itself. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(6) |
Rules framed by the Chief Justice thereunder– Rules framed by the Chief Justice show that the Permanent Benches are in fact new Courts therefore pending proceedings had to be transferred– The Rules are ultra vires on the very face of it. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(6) |
The Rules have brought in focus the evils of impugned amendment. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 100(6) |
A litigant has vested right to continue the proceedings in the
pre–existing forum. To sum up:
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 101, 103 and 105 |
High Court Division's jurisdictions, powers and functions, both original and appellate, occurring in Article 101– In Bangladesh the Supreme Court is constituted by the Constitution itself detailing the jurisdictions, powers and functions of each Division. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 101 and 102 |
Constitution of Bangladesh, 1972
|
Mohammad Tayeeb -Vs.- Government of Bangladesh | 5 ALR (AD) 156 |
Article 102 |
Contract Act
|
Md. Mahbubur Rahman Vs. Bangladesh and Others | 10 SCOB [2018] HCD 104 |
Article 102 |
Administrative Tribunal Act, 1980
|
Government of Bangladesh =VS= Md. Abdul Maleque Miah | 11 LM (AD) 12 |
Article 102 |
Article 102 of the Constitution is not meant to circumvent or bypass
statutory procedures:
|
Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors | 17 SCOB [2023] HCD 137 |
Article 102 |
When a person is entitled to seek remedy in the form of mandamus:
|
Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors | 17 SCOB [2023] HCD 137 |
Article 102 |
When a person is entitled to seek remedy in the form of mandamus:
|
Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors | 17 SCOB [2023] HCD 137 |
Article 102 |
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 & ors Vs. Golam Mustafa | 19 SCOB [2024] AD 155 |
Article 102, 105 |
Bangladesh Service Rules, Part-1
|
Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan | 16 LM (AD) 35 |
Article 102 |
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:
|
Md. Shahin Ikbal Vs. General Certificate Officer & ors | 17 SCOB [2023] HCD 168 |
Article 102 |
If any action is taken affecting the right of the petitioners in the lands
in question pursuant to the memo impugned in the writ petition, they shall
have every right to challenge the said action by resorting to appropriate
forum including the writ jurisdiction of the High Court Division–
|
Rokeya Begum =VS= Bangladesh | 7 LM (AD) 88 |
Article 102 |
Limitation–
|
Murtuza Shah(Md.) =VS= Ataharul Haque | 7 LM (AD) 158 |
Article 102 |
In absence of the statutory obligation, the High Court Division under
Article 102 of the Constitution is not justified in issuing mandamus for
payment of salary since a mandamus cannot lie in the absence of a legal
right based on the existence of statutory duty–
|
Government of Bangladesh =VS= K.M. Ekbal Hossen | 7 LM (AD) 180 |
Article 102, 150 |
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:
|
Siddique Ahmed =VS= Government of Bangladesh (7th Amendment Case, C. A.) | 15 LM (AD) 541 |
Article 102 |
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 |
Dhaka City Corporation =VS= Salma begum | 15 LM (AD) 631 |
Article 102 |
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 |
Samia Rahman Vs. Bangladesh and others | 17 SCOB [2023] HCD 182 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Directorate of Madrasa Education, Dhaka=VS=Abdullah Mahmud | 15 LM (AD) 89 |
Article 102 |
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.
|
Ministry of Commerce, Bangladesh =VS= Md. Nazrul Islam | 10 LM (AD) 234 |
Article 102 |
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 |
Maves Jasmin =VS= Md. Ruhul Amin-3 | 10 LM (AD) 241 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Abdul Karim | 15 LM (AD) 94 |
Article 102 |
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 |
Government of Bangladesh =VS= Md. Musabbir Mamun | 15 LM (AD) 98 |
Article 102 |
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 |
Golam Nabi Model Pilot High School =VS= Moulana Mohammad Jamal Hossain | 15 LM (AD) 151 |
Article 102 |
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.
|
Government of Bangladesh =VS= Mohammad Amirul Islam | 15 LM (AD) 210 |
Article 102 |
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 |
Sree Chandan Das =VS= Sukhamoy Chakraborty | 15 LM (AD) 248 |
Article 102 |
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 |
First Settlement Court =VS= Nazimuddin Bhuiyan | 15 LM (AD) 428 |
Article 102 (2) |
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.
|
Syed Saifuddin Kamal, son of SM Kamal Pasha, and another -Vs.- Bangladesh, represented by the Secretary, Ministry of Health, Bangladesh and others | 2019 ALR (HCD) Online 212 |
Article 102 |
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 |
Mosarrof Hosen and anr Vs. Artha Rin Adalat-1, Dhaka & ors | 19 SCOB [2024] HCD 126 |
Article 102 and 103 |
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.
|
M/S BHIS Apparels Limited represented by its Managing Director, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, Bangladesh and others | 2019 ALR (HCD) Online 302 |
Article 102 |
Constitution of Bangladesh
|
Md. Abdul Mannan Miah. -Vs.- Bangladesh, represented by its Secretary, Ministry of Land and others | 2019 ALR (HCD) Online 151 |
Article 102 |
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.
|
Md. Shahinur Rahman, Advocate, Supreme Court of Bangladesh -Vs.- Government of Bangladesh and another | 2019 ALR (HCD) Online 169 |
Article 102 |
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.
|
Ministry of Housing and Public Works -Vs.- The Chairman, First Court of Settlement, Bangladesh Abandoned Buildings, Segunbagicha, Dhaka. and others | 2019 ALR (HCD) Online 111 |
Article 102 |
The Customs Act, 1969
|
Customs, Excise and VAT Commissionerate, Ctg. =VS= S.M. Abdul Alim | 15 LM (AD) 233 |
Article 102 |
A litigant has no inherent right in procedural remedy. Since the Appellate Division of the Supreme Court has observed in 35 DLI? (AD) 127 that there is no scope for second revision the matter ends there. That does not mean that of necessity a writ jurisdiction may be invoked. Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196. |
Haji Golam Hossain Vs. Abdur Rahman Munshi | 40 DLR (AD) 196 |
Article 102 |
In certiorari the Court can declare that the conviction of the accused was recorded without lawful authority—if the accused’s trial is vitiated by irregularities in procedure causing him prejudice, the proceedings can be quashed. State Vs. Zahir and ors. 45 DLR (AD) 163. |
State Vs. Zahir and ors. | 45 DLR (AD) 163 |
Article 102 |
A writ petition does not lie against the decision of the Sessions Judge under section 439A CrPC. A litigant has no inherent right in procedural remedy. Appeal or revision must be given expressly by law. A writ jurisdiction cannot of necessity be invoked. Haji Golam Hossain Vs. Abdur Rahinan Munshi 40 DLR (AD) 196. |
Haji Golam Hossain Vs. Abdur Rahinan Munshi | 40 DLR (AD) 196 |
Article 102(2)(a)(i) |
read with section 439A of the Code of Criminal Procedure (V of 1898)—The Sessions Judge having reversed the finding of possession made in favour of the appellant by the Magistrate, the appellant cannot file writ petition in the nature of mandamus under Article 102(a)(i) of the Constitution. Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196. |
Haji Golam Hossain Vs. Abdur Rahman Munshi | 40 DLR (AD) 196 |
Article 102(2)(b)(1) |
High Court Division which took the view “This rule therefore has become infructuous after revocation of the impugned (original) order and the detenu is in detention not under the said order but under the subsequent order which is not the subject— matter of the present rule” missed the tenor of Article 102(2)(b)(l) which confers jurisdiction on it to “satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner” Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. |
Sajeda Parvin Vs. Government of Bangladesh | 40 DLR (AD) 178 |
Article 102(2)(b)(i) |
Writ of Habeas Corpus—Nature of enquiry—HC Division’s view erroneous—Considering the nature of enquiry as it is, there is no hesitation in saying that the High Court Division has erroneously taken the view that the Rule (issued by it) has become infructuous as because fresh order had been passed which was not, speaking technically, a subject—matter of the Rule. To say the least, the view that was taken in the case of Abdul Latif Mirza 31 DLR (AD) 1 was overlooked. Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. |
Sajeda Parvin Vs. Government of Bangladesh | 40 DLR (AD) 178 |
Article 102(2)(b)(i) |
In 31 DLR (AD) 1, it was held that the order of detention for its validity is to be tested on the basis whether the detaining authority had before it material which gave a rational probative value of the order and are not extraneous to the purpose of the Act and beyond which the order of detention is immune from challenge except on the ground of malafide. Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178. |
Sajeda Parvin Vs. Government of Bangladesh | 40 DLR (AD) 178 |
Article 102(2) |
Bangladesh Legal Practitioners and Bar Council Order, 1972
|
Golam Md Khan Pathan =VS= Md Mosharraf Hossain | 13 LM (AD) 238 |
Article 102(2)(a)(i) |
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 |
Nadira Huq =VS= Rajdhani Unnayan Katripakkha (RAJUK) | 13 LM (AD) 65 |
Article 102(2) |
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 |
Sonali Bank Limited =VS= Delta Spinners Limited | 13 LM (AD) 196 |
Article 102 |
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 |
Azizul Haque Sarker =VS= Md. Wazed Ali | 13 LM (AD) 520 |
Article 102 |
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 |
Kudrat-E-Elahi(Md.) =VS= Rahela Jakir | 13 LM (AD) 525 |
Article 102 |
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 |
Probashi Kallyan Bank, Dhaka =VS= Md. Bazlur Rashid | 13 LM (AD) 564 |
Article 102(2)(a)(ii) |
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 |
Thana Nirbahi Officer, Kaukhali =VS= Maulana A.B.M. Mahiuddin | 13 LM (AD) 614 |
Article 102 |
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
|
Bangladesh & ors Vs. Golam Mustafa | 19 SCOB [2024] AD 155 |
Article 102 |
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 & ors Vs. Golam Mustafa | 19 SCOB [2024] AD 155 |
Article 102(5) read with Article 152 |
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 |
Tanvir Quader & anr Vs. Bangladesh & ors | 19 SCOB [2024] HCD 27 |
Article 102(5) read with Article 152 |
Article 102(5) read with Article 152 of the Constitution
and
|
Tanvir Quader & anr Vs. Bangladesh & ors | 19 SCOB [2024] HCD 27 |
Article 102 |
Article 102 of the Constitution of the People’s Republic of Bangladesh
|
L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors., | 1 SCOB [2015] HCD 16 |
Article 102 |
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 |
Ministry of Housing and Public Works, BD =VS= Sinku Akramuzzaman | 14 LM (AD) 99 |
Article 102 |
Constitution of Bangladesh
|
Nishat Jute Mills Limited =VS= Human Rights and Peace for Bangladesh | 14 LM (AD) 210 |
Article 102(2) |
Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Sk. Md. Abdullah Faruque | 14 LM (AD) 232 |
Article 102 |
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 |
Office of the Controller General of Accounts =VS= Omar Faruque | 14 LM (AD) 331 |
Article 102 |
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 |
Ministry of Primary and Mass Education, BD =VS= Most. Sriti Begum | 14 LM (AD) 372 |
Article 102(2) |
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 |
Bismillah Towels Limited =VS= Bangladesh Bank | 14 LM (AD) 381 |
Article 102(2) |
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 |
Tahmina Khatun(Most.) =VS= Md. Lutfor Rahman Mollah | 14 LM (AD) 458 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Golam Mustafa | 14 LM (AD) 523 |
Article 102 |
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 |
Ministry of Land, Bangladesh =VS= Md. Abdul Malek | 14 LM (AD) 557 |
Article 102 and 44 |
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 |
Bangladesh & ors Vs Sontosh Kumar Shaha & ors | 6 SCOB [2016] AD 1 |
Article 102 |
স্থানীয় সরকার (পৌরসভা) আইন,
২০০৯
|
Ministry of Local Government, Bangladesh =VS= Md. Nurul Islam Khan | 13 LM (AD) 268 |
Article 102(5) r/w article 117(2) |
The Constitution:
|
Bangladesh & ors Vs Sontosh Kumar Shaha & ors | 6 SCOB [2016] AD 1 |
Article 102 |
The Customs Act, 1969
|
Ministry of Finance, Bangladesh =VS= Deshbandhu Sugar Mills Ltd. | 14 LM (AD) 642 |
Article 102(5) |
The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. …Pubali Bank Limited vs. Abdur Rashid Miah & ors, (Civil), 3 SCOB [2015] AD 24 ....View Full Judgment |
Pubali Bank Limited vs. Abdur Rashid Miah & ors | 3 SCOB [2015] AD 24 |
Article 102 |
The High Court Division cannot sit over the opinion of the Council as an
appellate forum:
|
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 102 |
Artha Rin Adalat Ain, 2003
|
Oriental Bank Ltd. former Al-Baraka Bank BD Ltd. =VS= A B Siddiq | 12 LM (AD) 614 |
Article 102 |
When judicial review is permissible:
|
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 102 |
Warrant of Precedence being arbitrary, irrational, whimsical and capricious
is subject to judicial review:
|
Bangladesh Vs. Md. Ataur Rahman & ors. | 9 SCOB [2017] AD 1 |
Article 102 |
Doctrine of promissory estoppel the appellants would be estopped from
denying the claims of the respondent nos.1 to 7 in regularizing their
service in the newly created 24 posts by the appellant-Government with the
purpose of regularizing the services of the respondents in their respective
posts– Government transferred M.B.B.S. Doctors to the newly created posts
of BHMS degree holders in the Homeopathic Degree College and Hospital,
Mirpur and thereby locked the posts of the respondent nos.1 to 7 which were
exclusively created for regularization of the services of the 8(eight)
honorary teachers including the respondent Nos.1 to 7 who were appointed
without pay and allowance. The learned Judges of the High Court Division
could not find any explanation on behalf of the appellants as to why the
recommendations regarding regularization of the service of the respondent
nos.1 to 7 as Lecturers / Assistant Professors of the Government
Homeopathic Degree College could not be implemented and the learned Judges
of the High Court Division rightly found that the appellant-Government
failed to show why the respondents M.B.B.S. degree holders should be
transferred to the Homeopathic Degree College depriving the Homeopathic
Degree holders who are entitled to be appointed on full-time basis in the
newly created posts of Government Homeopathic Degree College, Mirpur.
|
Government of Bangladesh =VS= Dr. Md. Nazrul Islam Bhuiyan | 8 LM (AD) 57 |
Article 102 |
Constitution of Bangladesh
|
Government of Bangladesh =VS= M/s. Excellent Corporation | 8 LM (AD) 215 |
Article 102(2) |
We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment. Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12-2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner. This Division also found that admittedly before such cancellation no notice was served to the respondent No.1. That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit. …AB Siddique(Engineer) =VS= Kazi Akramuddin Ahmed, (Civil), 2020 (1) [8 LM (AD) 350] ....View Full Judgment |
AB Siddique(Engineer) =VS= Kazi Akramuddin Ahmed | 8 LM (AD) 350 |
Article 102 |
Janabal Kathamo Nitimala, 2010 [as amended in 2013]
|
Government of Bangladesh =VS= Aruna Rani Sarker | 14 LM (AD) 368 |
Article 102(1) |
The Bangladesh Passport Order, 1973
|
Hussain Muhammad Ershed =VS= Bangladesh | 8 LM (AD) 23 |
Article 102 |
Janabal Kathamo Nitimala, 2010 [as amended in 2013]
|
Government of Bangladesh =VS= Md. Abdul Hoque | 14 LM (AD) 392 |
Article 102(2)(a)(i) |
Managing Committee of the Recognised Non-Government Secondary Schools
Regulations, 1977
|
Mijanur Rahman(Md.) =VS= Omar Faruk | 14 LM (AD) 385 |
Article 102 |
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 |
Rajdhani Unnayan Kotripakha (RAJUK) =VS= Sharmin Sarah | 12 LM (AD) 330 |
Article 102 (2) (a) (i) |
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 |
Rajdhani Unnayan Karitipakkha (RAJUK) =VS= Dr. Tofail Hoque | 12 LM (AD) 374 |
Article 102 |
Dhaka Municipal Corporation Ordinance, 1983
|
A.B.M. Asgar =VS= Administrator & Chairman of Allotment Committee, Dhaka | 8 LM (AD) 98 |
Articles 102 and 44 |
The right of judicial review under article 102(1) is a guaranteed one which is embodied in the constitution itself, but if that right is not guaranteed, even if a citizen’s fundamental right is infringed, he will be left with no remedy at all. True, article 102(1) has not been retained in the fundamental rights chapter as has been kept in India but in view of article 44(1), it is akin to fundamental right. Similarly the observation that the enforcement of fundamental right is available only when ‘no other equally efficacious remedy is provided by law’ is also not a correct view, inasmuch as, whenever there is infringement of fundamental rights, any person can move the High Court Division for judicial review of the administrative action under Article 102(1). The question of equally efficacious remedy arises only when it will exercise power under article 102(2) i.e. writ of certiorari and other writs mentioned in sub-clauses (a) and (b) of clause (2). If there is an alternative remedy, the High Court Division’s power is debarred. It is only in exceptional cases, it can exercise this power. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment |
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 102 |
The VAT Act
|
Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco Co. Ltd | 16 SCOB [2022] AD 84 |
Article 102(5) |
The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. .....Pubali Bank Ltd =VS= Abdur Rashid Miah & others, (Civil), 2016-[1 LM (AD) 420] ....View Full Judgment |
Pubali Bank Ltd =VS= Abdur Rashid Miah & others | 1 LM (AD) 420 |
Article-102 |
Remission of Interest of the Sick Industry–
|
Bangladesh Shilpa Rin Sangstha & another =VS= Rony Twines Ltd & others | 1 LM (AD) 200 |
Articles 102 and 117(2) |
Since the vires of any law was not challenged writ petition is not
maintainable–
|
Ministry of Communication & others =VS= Md.Iqbal Hossain | 1 LM (AD) 347 |
Article-102, 29 & 133 |
Promotion–
|
Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another | 1 LM (AD) 56 |
Article 102 |
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 |
Bangladesh & ors Vs. Md. Selim Khan & ors | 18 SCOB [2023] AD 36 |
Article 102 and 117 |
Clause (1) of Article 102 of the Constitution ordains that any person aggrieved may seek judicial review in the High Court Division for enforcement of fundamental rights conferred by Part III of the Constitution. Clause (5) of Article 102 puts an embargo to the seeking of such relief. It states that the person refers to in Article 102 includes a statutory public authority and any court or tribunal against whom such relief can be claimed, but it has excluded a court or tribunal established under a law relating to the defence services or a disciplined force or tribunal established in accordance with Article 117 of the Constitution. .....Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378] ....View Full Judgment |
Bangladesh & others =VS= Md. Abdus Satter & others | 1 LM (AD) 378 |
Article 102 |
Grameen Bank Ordinance, 1983
|
Professor Muhammad Yunus =VS= Ministry of Finance, Bangladesh | 9 LM (AD) 549 |
Article 102(2) |
Appellate Division held that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177] ....View Full Judgment |
Begum Khaleda Zia =VS= Anti-Corruption Commission | 3 LM (AD) 177 |
Article 102(2) |
All writ petitioners had absconded before they moved the High Court Division. There is no positive statement as to whether they appeared before the Special Judge before moving the petitions. In presence of alternative remedy, a writ petition for quashing the proceeding is not maintainable. This court cannot take different view. The accused if feel aggrieved by the initiation of the proceedings, must surrender to the jurisdiction of the court before seeking any remedy. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment |
Anti-Corruption Commission =VS= Tasmima Hossain | 3 LM (AD) 9 |
Article 102 |
Mandamus may not be issued where there is no violation of a legal right:
|
Bangladesh & ors Vs. Md. Selim Khan & ors | 18 SCOB [2023] AD 36 |
Article 102(2) |
This court has taken a consistent view that no writ petition is maintainable for quasninerit of a criminal preceding and secondly, a fugitive from justice cannot get any relief from court. The High Court Division has acted illegally in quashing the proceedings. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment |
Anti-Corruption Commission =VS= Tasmima Hossain | 3 LM (AD) 9 |
Article 102(2) |
Judicial review is not available for quashing a criminal proceeding in presence of alternative remedy. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment |
Anti-Corruption Commission =VS= Tasmima Hossain | 3 LM (AD) 9 |
Article 102(2) |
Arbitration clause being available in the agreement but invoking write
jurisdiction under the circumstances environment may judicial review even
there is an alternative remedy available–
|
Chief Engineer, REB =VS= Biswajit Ganguly | 3 LM (AD) 192 |
Article 102 |
This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. The judgment and order passed by the High Court Division is hereby set aside. .....Bangladesh Railway =VS= Most. Monowara Begum, (Civil), 2018 (2) [5 LM (AD) 13] ....View Full Judgment |
Bangladesh Railway =VS= Most. Monowara Begum | 5 LM (AD) 13 |
Article 102 |
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 |
Bangladesh & ors Vs. Sk. Md. Abdullah Faruque & ors | 18 SCOB [2023] AD 54 |
Article 102(2) |
Seniority–
|
Government of Bangladesh =VS= Md Sohel Rana | 5 LM (AD) 182 |
Article 102 |
Constitution of Bangladesh
|
Bangladesh & ors Vs. Sk. Md. Abdullah Faruque & ors | 18 SCOB [2023] AD 54 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Mohd. Junayed Quader =VS= Artha Rin Adalat, Dhaka | 5 LM (AD) 418 |
Article 102 |
The High Court Division could not and cannot exercise any power either original, appellate and other jurisdiction and powers unless such powers are vested on it either by any provision of the Constitution or law. In other words, the High Court Division cannot exercise a jurisdiction unless it is clothed with such power either by any provision of the Constitution or by any other law. (Md. Abdul Wahhab Miah, J)......Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461] ....View Full Judgment |
Mohammad Tayeeb =VS= Ministry of Religious Affairs | 5 LM (AD) 461 |
Article 102 (2) |
Whether the High Court Division can issue suo motu rule–
|
Mohammad Tayeeb =VS= Ministry of Religious Affairs | 5 LM (AD) 461 |
Article 102 |
The amendment has disrupted the constitutional fabric of Article 102 by introducing territorial concept thereby creating difficulties and incongruities. The amendment has created 7 High Court Divisions of mutually exclusive territorial jurisdiction. Anwar Hossain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hossain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 102 |
Whether, the High Court Division in exercise of its jurisdiction under
Article 102 of the Constitution is empowered to award monetary compensation
or compensatory cost to a victim in a case of the violation of fundamental
rights–
|
Government of Bangladesh =VS=Nurul Amin | 4 LM (AD) 526 |
Article 102 |
Election Commission may direct re–poll or accept the result of a poll though disputed by some candidates– Election Commission's approval or concurrence is necessary for any fresh election if directed by the Returning Officer. At an intermediary stage of election, writ jurisdiction is not available particularly when disputed questions of facts are involved except in exceptional circumstances such as coram–nonjudice or malice in law. Writ jurisdiction cannot be invoked as alternative remedy is available by way of election petition before the Tribunal. Zaker Hossain vs Abdur Rahim 42 DLR (AD) 153. |
Zaker Hossain vs Abdur Rahim | 42 DLR (AD) 153 |
Article 102 |
The Value Added Tax Act, 1991
|
Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd. | 14 LM (AD) 623 |
Article 102(5) r/w article 117(2) |
Clause (5) of article 102 read with article 117(2) of the Constitution: Except on the limited scope challenging the vires of law or if there is violation of fundamental rights, the power of the High Court Division is totally ousted under clause (5) of article 102 read with article 117(2). If a public servant or an employee of statutory corporation wants to invoke his fundamental rights in connection with his terms and conditions of service, he must lay foundation in the petition of the violation of the fundamental rights by sufficient pleadings in support of the claim. It will not suffice if he makes evasive statement of violation of his fundamental rights or that by making stray statements that the order is discriminatory or malafide. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment |
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 102 |
he writ petition challenges departmental proceeding relating to the service of the petitioner, a Government servant. High Court Division rightly found a bar to its jurisdiction in entertaining the petition. Md Serajul Islam vs Director General of Food 42 DLR (AD) 199. |
Md Serajul Islam vs Director General of Food | 42 DLR (AD) 199 |
Article 102 |
The High Court Division cannot sit over the opinion of the Council as an
appellate forum–
|
Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman | 4 LM (AD) 231 |
Article 102 |
Alternative remedy– Alternative remedy of appeal provided in the Customs Act, and pleaded as a bar against writ jurisdiction, is no equally efficacious remedy. Collector of Customs, Ctg vs A Hannan 42 DLR (AD) 167. |
Collector of Customs, Ctg vs A Hannan | 42 DLR (AD) 167 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Md. Abdul Malek | 4 LM (AD) 216 |
Article 102 |
Contract– Breach of contract – Government acting with malafide intention–Writ petition for breach of obligation against Government lies when the latter violates the contract with malafide intention. SMS Samity vs Bangladesh 39 DLR (AD) 85. |
SMS Samity vs Bangladesh | 39 DLR (AD) 85 |
Articles 102 read with 27, 28, 29 and 31 |
Discrimination–
|
Sher-E-Bangla Agricultural University =VS= Asia Rahman Shova | 4 LM (AD) 333 |
Article 102 |
Dispute centers regarding payment of rent to the Government the latter denying payment, when lessee proved payment. Before cancelling the lease Government must give the lessee an opportunity of being heard to prove his case. SMS Samity vs Bangladesh 39 DLR (AD) 85. |
SMS Samity vs Bangladesh | 39 DLR (AD) 85 |
Article 102(2) |
Writ petition exparte and disposed of the same on merit cannot be
sustained–
|
Mujibar Rahman (Md) =VS= Government of Bangladesh | 4 LM (AD) 280 |
Article 102 |
As to interpretation of any term of the contract or lease dispute should be resolved after hearing the lessee–breach alleged must be established by Government. SMS Samity vs Bangladesh 39 DLR (AD) 85. |
SMS Samity vs Bangladesh | 39 DLR (AD) 85 |
Article 102(1) |
Except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. Appellate Division observed that except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. None of the above conditions is available in this case and therefore, the writ petition is not maintainable. In respect of Abul Bashar, the writ petition was summarily rejected on the ground that the order impugned in writ petition cannot be said to be malafide or passed for collateral purpose and that no discrimination has taken place at all. In respect of case no.3 of 2000 since no inquiry report is available with the record, we direct the concerned Ministry to appoint an inquiry officer with the consultation of the G.A. Committee and complete the inquiry proceedings within two months from date, since the case is very old one. So this decision does not have any help for the respondent. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143] ....View Full Judgment |
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 102 |
Contractual right based on the licence is not amendable to Writ Jurisdiction of the High Court. Sekandar Ali Miah and others vs Chairman.BJWTA. 40 DLR (AD) 262. |
Sekandar Ali Miah and others vs Chairman.BJWTA | 40 DLR (AD) 262 |
Article 102 |
The Constitution of Bangladesh, 1972
|
Amzad Hussain =VS= Bangladesh Bank | 4 LM (AD) 33 |
Article 102 |
Availability of alternative remedy by way of appeal or revision will not stand in the way of invoking writ jurisdiction raising purely a question of law or interpretation of statute. MA Hai vs TCB 40 DLR (AD) 206. |
MA Hai vs TCB | 40 DLR (AD) 206 |
Article 102 |
Warrant of Precedence being arbitrary, irrational, whimsical and capricious
is subjectto judicial review–
|
Bangladesh =VS= Md. Ataur Rahman | 4 LM (AD) 40 |
Article 102 |
It was contended that the writ petition being a proceeding in the nature of quo warranto questioning the holder of public office about his title, the question cannot be left to be decided by compromise between the private parties as it is not a private grievance between the appellant and respondent No.1. Md Mostafa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. |
Md Mostafa Hossain vs Sikder Md Faruque | 40 DLR (AD) 10 |
Article 102 |
Refusing to grant registration to the 4 stroke C.N.G. Auto Rickshaw of the
writ-petitioner– No C.N.G. Auto Rickshaw without having route permit will
be given registration– This is a policy decision of the authority
concerned to solve/reduce the problem of traffic jam in Sylhet district and
this decision was taken in presence of Finance Minister and also the
officials of Bangladesh Road Transport Authority, Sylhet circle. We find no
illegality in this decision.
|
Deputy Commissioner, Sylhet =VS= Abdul Kaher Eju | 9 LM (AD) 13 |
Article 102(2) |
Where a person has an equally efficacious remedy, the High Court Division
would not interfere with criminal proceeding in exercising extra-ordinary
jurisdiction–
|
Begum Khaleda Zia =VS= Anti-Corruption Commission | 4 LM (AD) 89 |
Article 102 |
Remedy by a quo warranto proceeding in which the title to a public office may be questioned is independent of remedy available to a limited number of persons having personal grievances. Md Mostafa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. |
Md Mostafa Hossain vs Sikder Md Faruque | 40 DLR (AD) 10 |
Article 102 |
Service matter– The writ-petitioner-respondent has reached the age of superannuation during pendency of the writ petition and as such, there is no scope for his reinstatement in service. ...Bangladesh Sugar and Food Industries Corporation =VS= Md. Shamsuddin Sheikh, (Civil), 2020 [9 LM (AD) 101] ....View Full Judgment |
Bangladesh Sugar and Food Industries Corporation =VS= Md. Shamsuddin Sheikh | 9 LM (AD) 101 |
Article 102 |
Mere delay in raising the question is not a ground for denying this extraordinary remedy. Md Mostufa Hossain vs Sikder Md Faruque 40 DLR (AD) 10. |
Md Mostufa Hossain vs Sikder Md Faruque | 40 DLR (AD) 10 |
Article 102 |
Bills of the goods under the letters of credit– The discrepancy has been
alleged in respect of the bills of the goods under the letters of credit
which, allegedly have been obtained by practicing fraud in collusion with
the beneficiary and others involved therein and since civil and criminal
cases are pending in respect of the concerned disputed bills the High Court
Division had no jurisdiction to deal with the same under judicial review.
|
Sonali Bank Limited=VS=Roseburg Industries Limited | 9 LM (AD) 173 |
Article 102 |
Disputed facts–High Court Division erroneously interfered in the writ jurisdiction on a matter which involves a disputed question of fact–Decision is liable to be set aside– Appeal allowed. Abdul Hamid Khan vs Miah Nurul Islam & others 42 DLR (AD) 49. |
Abdul Hamid Khan vs Miah Nurul Islam & others | 42 DLR (AD) 49 |
Article 102 |
In a summary proceeding under Article 102 of the Constitution it is not possible to record a finding to a disputed question of fact. Farid Mia vs Amjad Ali 42 DLR (AD) 13. |
Farid Mia vs Amjad Ali | 42 DLR (AD) 13 |
Article 102 and 117 |
Clause (1) of Article 102 of the Constitution ordains that any person aggrieved may seek judicial review in the High Court Division for enforcement of fundamental rights conferred by Part III of the Constitution. Clause (5) of Article 102 puts an embargo to the seeking of such relief. It states that the person refers to in Article 102 includes a statutory public authority and any court or tribunal against whom such relief can be claimed, but it has excluded a court or tribunal established under a law relating to the defence services or a disciplined force or tribunal established in accordance with Article 117 of the Constitution. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment |
Bangladesh Vs. Md. Abdus Satter and others | 1 SCOB [2015] AD 17 |
Article 102 |
Court held that Article 102 can be invoked to require a person to show under what authority he claims to hold any public office only when the said person actually assumes that office or purports to do the same. Farid Mia vs Amjad Ali 42 DLR (AD) 13. |
Farid Mia vs Amjad Ali | 42 DLR (AD) 13 |
Article 102 |
The appellant filed the writ petition at a time when the Court of Settlement was yet to be constituted. The High Court Division having admitted the writ petition, it was not quite proper to decline interference after three years on the ground of alternative remedy before the Court of Settlement and the very fact that the Government did not care to file an affidavit could be held to be sufficient for the purpose of disentitling the Government from claiming possession and making a list including the appellant's property under the Ordinance. Begum Lutfunessa vs Bangladesh 42 DLR (AD) 86. |
Begum Lutfunessa vs Bangladesh | 42 DLR (AD) 86 |
Article 102 |
This writ petition was full of disputed facts and the prayer made in it
cannot be granted in a proceeding under Article 102 of the Constitution–
|
Bangladesh Railway =VS= Most. Monowara Begum | 6 LM (AD) 164 |
Article 102 |
Writ petition against decision of Election Tribunal– There is no word of finality attached to the decision of the Election Tribunal in the Rules. Even if there was any, the jurisdiction of the High Court Division under Article 102 could not be limited by such words of finality. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. |
Mahmudul Alam Mantu vs Sanwar Hossain Talukder | 42 DLR (AD) 211 |
Article 102(2) and 103 |
A Judge will dispense justice in accordance with law by treating everybody
equal–
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 102 |
There being no other forum provided by law for appeal and there being no other efficacious remedy open to the aggrieved party against the order of the Election Tribunal acting under the Dhaka Municipal Corporation (Election of Commissioners) Rules, 1983, the writ jurisdiction of the High Court Division was attracted. High Court Division was plainly wrong in rejecting the writ petition as not maintainable. Matter remitted back to the High Court Division for disposal on merit. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. |
Mahmudul Alam Mantu vs Sanwar Hossain Talukder | 42 DLR (AD) 211 |
Article 102, 103 and 105 |
The Supreme Court has been given the power of judicial review to see that
Parliament does not overstep the limits set by the Constitution–
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 102 |
Maintainability of writ petition–that there is no appeal provided against a decision can never be urged to exclude the writ jurisdiction of the High Court Division, rather it is all the more reason that the petitioner in such a case (of no remedy) cannot be thrown out easily. Mahmudul Alam Mantu vs Sanwar Hossain Talukder 42 DLR (AD) 211. |
Mahmudul Alam Mantu vs Sanwar Hossain Talukder | 42 DLR (AD) 211 |
Article 102(2) |
The writ petitioners have challenged the vires of an Act of Parliament,
that is to say, an amendment to the constitution which has been effective
by Gazette Notification dated 22nd September, 2014 and secondly, this
amendment has become a part of the constitution and the same cannot be
judged by the touchstone of an ordinary legislation.
|
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 102 |
Alternative remedy provided in the Customs Act and pleaded as a bar against writ jurisdiction is no equally efficacious remedy. Collector of Customs vs A Hannan 42 DLR (AD) 167. |
Collector of Customs vs A Hannan | 42 DLR (AD) 167 |
Article 102 |
We do not think that the respondent could rightfully claim any benefit on the basis of general findings made in the documents (Annexure 'D' and 'E') after all these months, particularly when he made no move after the District Election Officer had refused to accept his nomination paper and further held– We do not think that it was right and proper for the High Court Division to have directed the Election Commission to dispose of the application of the respondent again. It is apparent from the facts noticed above that respondent missed the bus due to inertia and it is well known that delay not only defeats justice but in some cases it defeats rights also. Abdul Jabbar Dakua vs Kanchan Ali Sikder 42 DLR (AD) 101. |
Abdul Jabbar Dakua vs Kanchan Ali Sikder | 42 DLR (AD) 101 |
Article 102 |
The High Court on examination of the different provisions of the Ordinance including section 7 came to the finding that the section can give the appellant exactly the same remedy which she was praying for in the writ petition, that the Court of Settlement has been given the specific power to exclude the disputed property from the impugned list–when the Statute devised an alternative forum for giving complete relief to the appellant, she could not invoke the writ jurisdiction without exhausting the remedy provided for in the Ordinance–This view taken by the High Court Division is well in accord with the settled principle governing exercise of discretionary jurisdiction under Article 102 of the Constitution–When the law itself provides for a remedy which is to be sought for in writ petition no interference with the impugned judgment is called for. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. |
Begum Lutfunnessa vs Bangladesh | 42 DLR (AD) 86 |
Article 102 |
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 |
Sonar Bangla Service Filling Station =VS= Nasir CNG Filling Station | 16 LM (AD) 467 |
Article 102 |
The High Court Division, in our opinion, could itself interfere, notwithstanding anything correctly observing that there was an alternative remedy under section 7 of the Ordinance in view of the particular facts of the case. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. |
Begum Lutfunnessa vs Bangladesh | 42 DLR (AD) 86 |
Article 102 |
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 |
Ministry of Law, Bangladesh =VS= Md. Saiful Islam | 16 LM (AD) 592 |
Article 102 |
When the Ministry of Home Affairs did not care to file an affidavit, it could be held to be sufficient for the purpose of the present case disentitling the government from claiming possession and making a list including the appellant's property under the Ordinance. Begum Lutfunnessa vs Bangladesh 42 DLR (AD) 86. |
Begum Lutfunnessa vs Bangladesh | 42 DLR (AD) 86 |
Article 102 |
Internal exercises of the Government not communicated to the concerned person are not enforceable. No legal right can be founded on the notings done by the Government and furnished in the Writ petition. Bangladesh vs Dhaka Steel Works Ltd 45 DLR (AD) 70. |
Bangladesh vs Dhaka Steel Works Ltd | 45 DLR (AD) 70 |
Article 102(1) |
The impugned legislation (the Amending Act No. 14 of 1989 which amended PO No. 26 of 1973) has not violated any provision of the Constitution– Motives of the majority party in the Legislature in passing an enactment or its merits are non issues in a proceeding under Article 102( 1) of the Constitution when the constitutionality of an enactment is prima facie unassailable. Asaduzzaman vs Bangladesh 42 DLR (AD) 144. |
Asaduzzaman vs Bangladesh | 42 DLR (AD) 144 |
Article 102(1) |
Article 102 is a mechanism for the enforcement of Fundamental Rights which
can be enjoyed by an individual alone insofar as his individual rights are
concerned, but which can also be shared by an individual in common with
others when the rights pervade and extend to the entire population and
territory: Per Mustafa Kamal J delivering the Full Court Judgment.
|
Dr Mohiuddin Farooque vs Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others | 49 DLR (AD) 1 |
Articles 102(1) & 117(2) |
Jurisdiction of Administrative Tribunal– It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article 102(1) is not frittered away or misused. Mujibur Rahman vs Bangladesh 44 DLR(AD) 111. |
Mujibur Rahman vs Bangladesh | 44 DLR(AD) 111 |
Article 102 |
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 |
Government of Bangladesh =VS= Md. Ali Akbor | 11 LM (AD) 392 |
Article 102(2) |
Provision of Article 102(2) or any other provision of the Constitution do not preclude the High Court Division either to reconsider or to review the correctness of its judgment upon fresh material(s). Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41. |
Serajuddin Ahmed and others vs AKM Saiful Alam and others | 56 DLR (AD) 41 |
Articles 102(2) & 117 |
Maintainability of writ petition in service matter–It is found from the facts of the writ petitions that the question of fundamental right invoked therein has been so mixed up with the facts and statutory rules that the question of fundamental right cannot be extricated for exclusive consideration in a petition for enforcement of fundamental right. Therefore, the High Court Division rightly held the writ petitions to be maintainable under Article 102(2). Bangladesh vs Md Azizur Rahman 46 DLR (AD) 19. |
Bangladesh vs Md Azizur Rahman | 46 DLR (AD) 19 |
Article 102(2)(a)(i) |
Mandamus, requirement of– In order to enforce the performance by public bodies of any public duty by mandamus, the applicant must have a specific legal right to insist upon such performance. National Engineers vs Ministry of Defence 44 DLR (AD) 179. |
National Engineers vs Ministry of Defence | 44 DLR (AD) 179 |
Article 102(2) |
Value Added Tax Act, 1991 (VAT Act)
|
British American Tobacco Bangladesh Company Ltd. =VS= NBR | 10 LM (AD) 257 |
Article 102 |
Article 102 of the Constitution of the People’s Republic of Bangladesh
|
L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors. | 1 SCOB [2015] HCD 16 |
Article 102(2)(a)(i) |
The writ of mandamus can be issued for enforcing the performance of duty by Government or its officials only when they are under a legal obligation towards a subject to carry out specific ministerial duties imposed by law. The Government is under a 'legal obligation' towards the respondents" to carry out specific ministerial duties", thereby imposed upon. them by law, namely, "to complete the formalities to transfer the mill". Secretary, Ministry of Industries vs Saleh Ahmed & others 46 DLR (AD) 148. |
Secretary, Ministry of Industries vs Saleh Ahmed & others | 46 DLR (AD) 148 |
Article 102(2)(a)(ii) |
The High Court Division acting under Article 102(2)(a)(ii) can only make a declaratory order and nothing more and unless it is required by law to do it cannot direct any authority to do a particular thing. Bangladesh, represented by Secretary, Establishment Division and others vs Mahbubuddin Ahmed 50 DLR (AD) 154. |
Bangladesh, represented by Secretary, Establishment Division and others vs Mahbubuddin Ahmed | 50 DLR (AD) 154 |
Article 102 |
Writ of Certiorari:
|
Md. Mahbubur Rahman Vs. Bangladesh & Ors. | 1 SCOB [2015] HCD 18 |
Article 102(2)(b)(i) |
Habeas corpus– decision of foreign jurisdictions. In view of the wider jurisdictional approach this court has taken in habeas corpus matters the decision of foreign jurisdictions may not be always helpful to us. We may benefit from some well–known earlier decisions for their persuasive value. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. |
Nasrin Kader Siddiqui vs Bangladesh | 44 DLR (AD) 16 |
Article 102(2) |
Locus Standi:
|
Md. Hafizur Rahman Vs. Secretary, Ministry of Public Works and Ors. | 1 SCOB [2015] HCD 73 |
Article 102(2)(b)(i) |
Custody on the plea of conviction–Where a prisoner is in custody on the basis of an order of conviction the onus of the respondent is discharged as soon as the return relating to the appellant's custody shows that there is an order of conviction justifying the custody. But the conviction is to be placed before the court for its satisfaction whether the irregularity in it can be overlooked. The warrant of commitment issued by one not authorised under the law can hardly prove the conviction. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. |
Nasrin Kader Siddiqui vs Bangladesh | 44 DLR (AD) 16 |
Article 102(2) |
Aggrieved person:
|
Marrine Vegetable Oil Ltd & Anr Vs. Petrobangla | 1 SCOB [2015] HCD 94 |
Article 102(2)(b )(i) |
If it is manifest from the writ petition itself that the cause or manner of detention stands adequately explained and justifed on the face of it, the respondents need not file an affidavit–in–opposition and may support the detention orally relying on the petition itself. Nasima Begum vs. Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD) 102. |
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 |
Article 102 |
Constitution of Bangladesh
|
Government of Bangladesh and others -Vs.- Md. Abdul Karim and others | 2019 ALR (AD) Online 337 |
Article 102 (2)(a)(ii) |
Article 102 (2)(a)(ii) of the Constitution of the People’s Republic of
Bangladesh &
|
Abul Hossain Khan & anr Vs. Artha Rin Adalat, Barguna & Ors. | 1 SCOB [2015] HCD 110 |
Article 102(2)(b)(ii) |
Writ of quo warranto –The election of a candidate could not be challenged under Article 102 of Constitution but when the candidate after being elected assumes the office of Chairman or other Public Office then any person can invoke the provision of sub–article 2(b)(ii) of Article 102. Farid Mia vs Amjad Ali 42 DLR (AD) 13. |
Farid Mia vs Amjad Ali | 42 DLR (AD) 13 |
Article 102(1) |
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 |
Bangladesh & others =VS= Md. Abdus Satter & others | 1 LM (AD) 378 |
Article 102(3) |
Granting of an interim order under Article 102 is not an absolute plenary power– It is totally prohibitive in relation to certain laws. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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 |
Khademuzzaman Vs. Bangladesh & ors | 2 SCOB [2015] HCD 62 |
Article 102 |
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 |
Msaharaf Hossain Vs. Dhaka City Corp. & others | 2 SCOB [2015] HCD 70 |
Article 102(4) |
To obtain an interim order, a writ petitioner must not only make out a prima facie case, but a strong prima facie case. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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 |
Mark Construction Ltd Vs. Chief Engineer, REB & ors | 3 SCOB [2015] HCD 37 |
Article 102 (1) (2) |
At the risk of repetition, I say that in the Rule issuing order, the District Magistrate and Deputy Commissioner was not, at all, asked to 70 show cause as to why fatwas including the instant one should not be declared unauthorized and illegal and thus he was not given any chance of hearing on the subject or the point or the issue. It may be stated that the Rule was issued only upon the District Magistrate and Deputy Commissioner, Naogaon. I failed to understand how the High Court Division could merrily exercise its jurisdiction under article 102 and hold all the fatwas including the instant one as unauthorized and illegal without giving the sole respondent any chance of hearing. It was clearly a violation of the principles of natural justice. I could not lay my hands on any decision either under writ jurisdiction or under the civil jurisdiction by this Court or any other superior Court approving such kind of exercise of power by the High Court Division. I am afraid that if this kind of exercise of power by the High Court Division is approved or sanctioned, then the High Court Division shall be on the spree of disposing of the Rule, in exercising jurisdiction under article 102, giving relief to a party at its own whims and sweet will beyond the pleadings and the prayer and without caring the right of hearing of the other side. And in the process, it will give rise to judicial anarchy. It also needs to be mentioned that the language used in the Rule issuing order “and/or pass such other or further order or orders as this Court may deem fit and proper”, in no way, gives a Court jurisdiction to give relief to a party or to hold something or to make any declaration or to make observations and recommendations beyond the Rule issuing order; such a language gives jurisdiction to a Court or authorises a Court to give only the ancillary or consequential relief that may follow from the Rule issuing order. Therefore, I am constrained to hold that the High Court Division exceeded its jurisdiction as well in making the Rule absolute in the terms as indicated hereinbefore. (Md. Abdul Wahhab Miah, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461] ....View Full Judgment |
Mohammad Tayeeb =VS= Ministry of Religious Affairs | 5 LM (AD) 461 |
Article 102(4) |
It is in the public interest to protect private interest which stands in the danger of being irretrievably damaged or faces extinction. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
Constitution of Bangladesh
|
Manabendra Chakrabarty & ors Vs. Bangladesh & others | 3 SCOB [2015] HCD 52 |
Article 102(4) |
An interim order can also be passed when the order under challenge is shown to suffer from an absolute lack of jurisdiction (as distinct from a mere difference of interpretation between various relevant authorities or between a relevant authority and the writ petitioner) or clear or patent excess of jurisdiction or patent mala fide without requirement of further proof. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102(4) |
Regard for the public welfare is the highest law and in each case the High Court Division will consider whether in spite of prima facie case and balance of convenience the individual interest should be subjugated to public interest. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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 |
Md. Fazlul Hoque Vs. BIWTC | 3 SCOB [2015] HCD 143 |
Article 102(4) |
An analysis of clause (4) brings into sharp focus the definite constraints within which the High Court Division has to pass an interim order under clause (I) or sub–clause (a) of clause (2) of Article 102 of the Constitution. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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 |
Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors | 4 SCOB[2015] HCD 42 |
Article 102(4) |
Personal guarantee is a very weak and uncertain security which should be avoided in the best interest of public revenue. Commissioner of Customs, Mongla Customs House and others vs SARC Enterprise 51 DLR (AD) 165. |
Commissioner of Customs, Mongla Customs House and others vs SARC Enterprise | 51 DLR (AD) 165 |
Article 102(2) |
Value Added Tax Act, 1991 (VAT Act)
|
Ministry of Finance, Bangladesh =VS= Pragati Insurance Ltd. | 12 LM (AD) 309 |
Article 102 |
Constitution of Bangladesh
|
Energy Prima Ltd. Vs. Bangladesh & ors | 8 SCOB [2016] HCD 84 |
Article 102(4)(1)(a)(b) |
The High Court Division will not consider whether an interim order will actually prejudice or interfere with the implementation of any development programme or work or will actually be otherwise harmful to the public interest, but will only consider whether such interim order "is likely to have" the said effect. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102(4)(1)(b) |
The conditions precedent for the exercise of this power are mandatory, not directory. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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
|
Moulana Md. Abdul Hakim Vs. Bangladesh & ors. | 10 SCOB [2018] HCD 71 |
Article 102(4)(1)(b) |
A "reasonable notice" means a reasonable length of time within which it is possible and feasible for the Attorney–General to obtain instructions from relevant quarters. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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
|
Bangobir Kader Siddiqui, Bir Uttom Vs. CEC & ors. | 10 SCOB [2018] HCD 84 |
Article l02(4)(1)(b) |
What is reasonable notice will depend upon the facts and circumstances of each case, but if the AttorneyGeneral alleges and proves to the satisfaction of the Court that he was not given reasonable notice of the application, one of the condition precedents for the exercise of the power is not fulfilled and the interim order renders itself liable to interference. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article,102(2) |
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
|
Farhana Akhter Liza & ors. Vs. The Islamic University & ors. | 10 SCOB [2018] HCD 92 |
Article 102(4)(1)(b) |
The appearance of the Attorney–General before the Court is only for the purpose of assisting the Court in forming its satisfaction. But satisfaction is an independent constitutional obligation of the High Court Division and it does not depend upon the appearance or non–appearance of the Attorney General. Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another 50 DLR (AD) 129. |
Commissioner of Customs, Chittagong vs Giasuddin Chowdhury and another | 50 DLR (AD) 129 |
Article 102 |
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 |
Md. Mahbubur Rahman Vs. Bangladesh and Others | 10 SCOB [2018] HCD 104 |
Article 102 |
Locus Standi of the Petitioner & maintainability of the Rule.––
|
Children’s Charity Bangladesh Foundation (CCB Foundation) Vs Bangladesh & ors. | 10 SCOB [2018] HCD 117 |
Article 102(2) |
VAT Act, 1991
|
Customs Excise & VAT Commissionerate =VS= Syed Nurul | 16 LM (AD) 512 |
Article 102 |
Article 102 of the Constitution of the People’s Republic of Bangladesh,
Article 51 of the United Nations Convention against Corruption:
|
Professor M. Samsul Alam Vs. Bangladesh & ors. | 10 SCOB [2018] HCD 205 |
Article 102(1) |
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
|
Md. Nur Hossain & ors. Vs. Bangladesh & ors. | 10 SCOB [2018] HCD 299 |
Article 102(2) |
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 |
Liberty Fashion Wears Limited Vs. Bangladesh Accord Foundation & ors. | 12 SCOB[2019] HCD 1 |
Article 102(2) |
Exhaustion of efficacious remedy provided by law: How far it bars the
invocation of the writ jurisdiction, Liberal interpretation of Equality
before law;
|
Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors. | 12 SCOB [2019] HCD 24 |
Article 102(2) |
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
|
Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors. | 12 SCOB [2019] HCD 24 |
Article 102(2), Article 66 |
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;
|
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 102(2) |
Code of Criminal Procedure, 1898
|
Anti-Corruption Commission =VS= Shahjahan Omar(Md) | 9 LM (AD) 281 |
Article 102(2) (b) (ii) |
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
|
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 102 |
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 |
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 102, 125 |
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 |
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Articles 102(1) |
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 |
M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors. | 13 SCOB [2020] HCD 1 |
Article 102 |
Writ of Certionary: Maintainability;
|
Abdur Rahman & ors. Vs. Judge (District Judge) Arpita Shampparrti Prattarpan Appellate Tribunal, Brahmanbaria & ors. | 14 SCOB [2020] HCD 24 |
Article 102(2)(a)(i) |
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 |
Spice Television Private Ltd Vs. Bangladesh & ors | 16 SCOB [2022] HCD 1 |
Article 103 and 104 |
Constitution of Bangladesh, 1972
|
Government of Bangladesh =VS= Tauhid Uddin Ahmed | 9 LM (AD) 185 |
Article 103 |
Granting of leave–
|
Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission | 5 LM (AD) 226 |
Article 103 (2) (c) |
Contempt of Court
|
Ekramul Haque Balbul -Vs.- Muhammad Faiz | 5 ALR (AD) 109 |
Article 103(2)(b) |
Penal Code, 1860
|
Iqbal Hossain =VS= The State | 11 LM (AD) 159 |
Article 103 |
Where serious defect in the finding of fact given by the High Court Division is discovered and the same are considered not tenable then it should be open to the Appellate Division to come to its own) independent finding upon a re-examination or the evidence untrammeled by the opinion of the Court appealed from. State Vs. Abdus Sattar 43 DLR (AD) 44. |
State Vs. Abdus Sattar | 43 DLR (AD) 44 |
Article 103 |
State filed a leave petition against the order of acquittal by the High Court Division which was dismissed after hearing—Subsequently the informant filed another leave petition. There is no scope for hearing the second petition at the instance of the informant. Mostoshir Ali Vs. Arman Ali 42 DLR (AD) 12. |
Mostoshir Ali Vs. Arman Ali | 42 DLR (AD) 12 |
Article 103 (2) |
Constitution of Bangladesh, 1972
|
Abdus Daiyan Khan @ Babul(Md.) =VS= Abdur Rouf Bhuiyan(Md.) | 13 LM (AD) 145 |
Article 103 |
Since we are of the view that writ petitions were not maintainable the second submission of the petitioner does not deserve any consideration. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 89] ....View Full Judgment |
Begum Khaleda Zia =VS= Anti-Corruption Commission | 4 LM (AD) 89 |
Article 103, 104 |
Power of Complete Justice u/a 104 of the Constitution:
|
State Vs. Nurul Amin Baitha & another | 11 SCOB [2019] AD 13 |
Article 103(3) |
Consideration of evidence afresh on a point missed by the petitioner before the High Court Division is not a good point for granting leave. Narayan Chandra Das and others vs Abdur Jabbar Dewan and others 52 DLR (AD) 35. |
Narayan Chandra Das and others vs Abdur Jabbar Dewan and others | 52 DLR (AD) 35 |
Article 103 |
Constitutional obligation of the Supreme Court (Appellate Division) is to do complete justice in the cause. It has become imperative upon the Court to give due consideration to the Annexures to clarify the factual position. Bangladesh & others vs Dhaka Lodge Welfare Society 40 DLR (AD) 86. |
Bangladesh & others vs Dhaka Lodge Welfare Society | 40 DLR (AD) 86 |
Article 103 |
Appeal– Question of fact– A question of fact or mixed question of fact and Jaw ought to be raised in die High Court Division for a proceeding under Article 102 of the Constitution. An appellant should not ordinarily be allowed to convert the Appellate Division into a court of first instance. Nasrin Kader Siddiqui vs Bangladesh 44 DLR (AD) 16. |
Nasrin Kader Siddiqui vs Bangladesh | 44 DLR (AD) 16 |
Article 103 |
Under the new dispensation that Article 103 of the Constitution shall apply in relation to Administrative Appellate Tribunal the petitioners have only the right to seek leave for appeal. The Court's power under clause (3) of Article 103 is very wide–question of retrospectivity or prospectivity of section 6A of the Act of 1981 has got no relevance. Bangladesh Bank and another vs Administrative Appellate Tribunal 44 DLR (AD) 239. |
Bangladesh Bank and another vs Administrative Appellate Tribunal | 44 DLR (AD) 239 |
Article 103 |
In view of the special nature of services rendered by its employees the organizational set–up of trade unions of the Biman or any other organisation containing similar professional groups should receive special consideration so as to meet their special situations. The authority may consider whether, consistent with constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. Meanwhile existing agreements between the unions and the Biman shall remain operative for the duration of the respective agreements. Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others 45 DLR (AD) 122. |
Secretary of Aircraft Engineers of Bangladesh & another vs Registrar of Trade Unions and others | 45 DLR (AD) 122 |
Article 103(1) |
When a Single Company Judge of the High Court Division is exercising power under section 38 of the Companies Act an appeal from its decision has to be taken by way of leave to the Appellate Division under Article 103(1) of the Constitution. Moqbul Ahmed and another vs Ahmed Impex (Pvt) Ltd and others 48 DLR (AD) 82. |
Moqbul Ahmed and another vs Ahmed Impex (Pvt) Ltd and others | 48 DLR (AD) 82 |
Article 103(1) |
Since the petitioner has avenues open for both hearing of the Rule and the injunction matter in the High Court Division itself no interference is called for. Bangladesh, represented by the Secretary, Ministry of Establishment vs Khondaker Tajuddin Ahmed and others 51 DLR (AD) 64. |
Bangladesh, represented by the Secretary, Ministry of Establishment vs Khondaker Tajuddin Ahmed and others | 51 DLR (AD) 64 |
Article 103(2)(a) |
Certificate for appeal – The High Court Division while granting certificate is to indicate application of judicial mind to the question whether a case is fit one for appeal to the Appellate Division. The grant of a certificate of fitness for appeal is a judicial function requiring care and cautiousness of a judicial mind. It is not a mere mechanical act. The High Court Division fell into an oft–repeated avoidable error in granting a certificate in this case. Qazi Kamal vs Rajdhani Unnayan Kartripakha 44 DLR (AD) 291. |
Qazi Kamal vs Rajdhani Unnayan Kartripakha | 44 DLR (AD) 291 |
Articles 103(3) |
A surprise argument that does not find place either in the impugned judgment or in the revision petition before the High Court Division is not entertainable. Abdul Kaiyum (Md) vs Krishnadhan Banik and others 49 DLR (AD) 140. |
Abdul Kaiyum (Md) vs Krishnadhan Banik and others | 49 DLR (AD) 140 |
Article 104 |
Bangladesh Environment Conservation Act, 1995
|
Metro Makers and Developers Limited =VS= BELA | 11 LM (AD) 261 |
Article 104 |
Complete Justice–
|
The State =VS= Nurul Amin Baitha | 5 LM (AD) 311 |
Article 104 |
In exceptional cases the highest court of the country could invoke its
inherent powers. It is conceived to meet the situations which cannot be
effectively and appropriately tackled by the existing provisions of law.
The Court is not powerless to undo any injustice caused to a party–
|
State =VS= Dafader Marfoth Ali Shah & ors. | 4 LM (AD) 430 |
Article 104 |
The exercise of the power of doing 'complete justice–
|
State =VS= Dafader Marfoth Ali Shah & ors. | 4 LM (AD) 430 |
Article 104 |
Considering the above stated facts and circumstances and the legal position we do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power of this Division under article 104 of the Constitution.... (Nazmun Ara Sultana, J) (Majority view) .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment |
State =VS= Dafader Marfoth Ali Shah & ors. | 4 LM (AD) 430 |
Article 104 |
Review– Administrative Tribunal case was not maintainable–
|
Ministry of Law, Justice and Parliamentary, Bangladesh =VS= S.M. Abdur Rauf | 7 LM (AD) 240 |
Article 104 |
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:
|
Sadhan Chandra Baidya =VS= Parshuram Pilot High School | 10 LM (AD) 79 |
Article 104 |
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 |
Fazlul Haque Sarder(Md.) =VS= Grameen Phone Ltd. | 10 LM (AD) 49 |
Article 104 |
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.
|
Ministry of Finance, Bangladesh =VS= Ali Karam Reza | 10 LM (AD) 296 |
Article 104 |
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:
|
Abdul Hye =VS= Ministry of Land, Bangladesh | 10 LM (AD) 342 |
Article 104 |
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 |
The State =VS= Aslam Shikder | 11 LM (AD) 144 |
Article 104 |
Reduction of sentence—The respondent suffered much during these long years and any direction to suffer further imprisonment will only add to his misery of which he has had enough. The order of the High Court Division acquitting him though set aside and that of the Conviction by the Special Judge under section 409 Penal Code is restored, the sentence of his imprisonment is therefore reduced to the period already undergone by him. State Vs. Abdul Muttaleb Khan 45 DLR (AD) 131. |
State Vs. Abdul Muttaleb Khan | 45 DLR (AD) 131 |
Article 104 |
Bangladesh Rifles (Special Provisions) Ordinance, 1976 (BDR Ordinance)
|
Ministry of Home Affairs, Bangladesh =VS= Md. Golam Mostafa | 14 LM (AD) 86 |
Article 104 |
The Constitution of Bangladesh, 1972
|
Deputy Commissioner, Gazipur =VS= Md. Idris Ali | 13 LM (AD) 56 |
Article 104 |
Artha Rin Adalat Ain, 2003
|
Denim Attires Ltd. =VS= Iffat Obaid | 12 LM (AD) 243 |
Article 104 |
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 |
Noor Mohammad Khan being dead his heirs: Firoza Noor Khan and others Vs. Raisa Aziz Begum and others | 14 SCOB [2020] AD 115 |
Article 104 |
Khas Mohal property of the Government, Complete Justice;
|
Noor Mohammad Khan being dead his heirs: Firoza Noor Khan and others Vs. Raisa Aziz Begum and others | 14 SCOB [2020] AD 115 |
Article 104 |
For doing complete Justice– The power of this Court under article 104 of
the Constitution is an extensive one though it is not used often or
randomly. It is generally used for doing complete justice in any cause or
matter pending before it in rare occasions in exceptional or extra-ordinary
cases for avoiding miscarriage of justice. To meet unwarranted and
unpredicted exceptional situation this power is vested in this Division for
doing complete justice. Article 104 widens our hands so that this Division
is not powerless in exceptional matters. The matters (appeals/CPLA) in our
hands are matters requiring exercise of this power, to save a valuable
property of the Government from the clutches of greedy land/property
grabbers, that too with the active collaboration and help from the
Government Officials. Therefore, we have no other option than to exercise
our power under article 104 of the Constitution. In the instant matters, it
is absolutely necessary to do so.
|
Noor Mohammad Khan =VS= Raisa Aziz Begum | 8 LM (AD) 248 |
Article 104 |
All the semi government organizations/ autonomous bodies/corporations/
nationalized banks and financial institutions fixation and payment of the
retirement benefits/gratuity– The provisions relating to retirement
benefits of the officers and employees of the semi government, autonomous
bodies, corporations, banks and other financial institutions are regulated
by their specific laws, they are bound by the provisions of the respective
laws and they are not entitled to get any benefit, which the law does not
permit.
|
Ministry of Agriculture, BD =VS= Kh. Mosaddeq Hossain | 8 LM (AD) 284 |
Article 104 |
The Artha Rin Adalat Ain, 2003
|
Rupali Bank Ltd. =VS= Md. Shamser Ali | 10 LM (AD) 28 |
Article 104 |
VAT Act, 1991
|
National Board of Revenue(NBR), Dhaka =VS= BSRM Steels Ltd. | 13 LM (AD) 246 |
Article 104 |
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 |
Ministry of Finance, Bangladesh =VS= Confidence Cement Ltd. | 12 LM (AD) 229 |
Article 104 |
We are of the view that this would be an appropriate case where we should exercise our authority under article 104 of the Constitution for doing complete justice in the matter before us. The evidence and materials on record do not disclose the real reason behind the gift by the wife to her husband. The fact remains that the property was purchased jointly and was in their joint possession and enjoyment in spite of the gift. The third party has purchased the property for valuable consideration. There was no evidence that the defendant mutated the record of rights to his name after the acquisition of legal title to the property by virtue of the gift. The third party purchaser would not have been aware of the transfer of title. The defendant-appellant shall pay a sum of Tk.2,50,000/- to plaintiff-respondent No.1 within 3 months from the date of receipt of the judgement, failing which the appeal shall stand dismissed. .....Abul Hashem Sarker(Md.) =VS= Arjuman Akhter(Mst.), (Civil), 2018 (2) [5 LM (AD) 31] ....View Full Judgment |
Abul Hashem Sarker(Md.) =VS= Arjuman Akhter(Mst.) | 5 LM (AD) 31 |
Article 104, 111 |
Period of limitation in filing petitions/applications/
suits/appeals/revisions/all other proceedings extended– The existing laws
do not give any Court or Tribunal the authority to extend the period of
limitation provided under any special law. However, we are also aware of
the singularly unprecedented, unwonted and totally unavoidable
circumstances which has compelled people all over the world to be confined
to their homes.
|
Fazlul Haque Sarder =VS= Grameen Phone Limited | 9 LM (AD) 37 |
Article 104 |
Legitimate expectation–
|
Ministry of Establishment =VS= Md. Abul Hashem | 5 LM (AD) 297 |
Article 104 |
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 |
State Vs. Dafader Marfoth Ali Shah & ors | 5 SCOB [2015] AD 1 |
Article 104 |
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 |
State Vs. Dafader Marfoth Ali Shah & ors | 5 SCOB [2015] AD 1 |
Article 104 |
Considering the above stated facts and circumstances and the legal position we do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power of this Division under article 104 of the Constitution. (Nazmun Ara Sultana, J) (Majority view) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment |
State Vs. Dafader Marfoth Ali Shah & ors | 5 SCOB [2015] AD 1 |
Article 104 |
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.
|
Denim Attires Ltd. -Vs.- Iffat Obaid and others | 2019 ALR (AD) Online 107 |
Article 104 |
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 |
Denim Attires Ltd. -Vs.- Iffat Obaid and others | 2019 ALR (AD) Online 107 |
Article 104 |
Peititioner sought to secure transfer of civil cases from courts situated within territorial jurisdiction of one Permanent Bench to that of another Permanent Bench. Held: As transfer of a case does not come within the ambit of Article I 04 of the Constitution, Supreme Court, Appellate Division cannot pass any order for doing completejustice to a case including the order for transfer under Article I 04 of the Constitution. Sk AKM Abdul Mannan vs Raj Textile Mill Ltd 42 DLR (AD) 11. |
Sk AKM Abdul Mannan vs Raj Textile Mill Ltd | 42 DLR (AD) 11 |
Article 104 |
The words "doing complete justice" as occurs in Article 104 are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed. Mahbubur Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145. |
Mahbubur Rahman Sikder vs Mujibur Rahman Sikder | 37 DLR (AD) 145 |
Article 104 |
This provision should not be resorted to in the case of laches on the part
of a financial institution like a Bank, which should better take action
against its own wrongdoers, if any.
|
Rupali Bank vs Tobacco Industries Ltd. | 46 DLR (AD) 190 |
Article 104 |
Complete justice–Relief sought should ordinarily be considered within the framework of the suit. In the name of complete justice Appellate Division may not grant relief which the court of first instance will not be able under the law to grant. Article 104 has invested the last court of the country with wide power, so it may do complete justice in an appropriate case. If a substantial justice under law and on undisputed facts can be made so that the parties may not be pushed to further litigation, then a recourse to this provision may be justified. AFM Naziruddin vs Mrs. Hameeda Banu 45 DLR (AD) 39. |
AFM Naziruddin vs Mrs. Hameeda Banu | 45 DLR (AD) 39 |
Article 104 |
The High Court Division wrongly used the words "for doing complete justice" between the parties. It is only the Appellate Division which has got the power under Article 104 of the Constitution to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any matter pending before it. Shahana Hossain vs AKM Asaduzzaman 47 DLR (AD) 155. |
Shahana Hossain vs AKM Asaduzzaman | 47 DLR (AD) 155 |
Article 104 |
No remedy is available to the appellant though a gross injustice has been done to him for no fault or ]aches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view it is a most appropriate case for the Court to exercise our jurisdiction under Article 104. Raziul Hassan vs Badiuzzaman Khan and others 48 DLR (AD) 71. |
Raziul Hassan vs Badiuzzaman Khan and others | 48 DLR (AD) 71 |
Article 104 |
It is only the Appellate Division which has been bestowed with the jurisdiction of "doing complete justice in any cause or matter pending before it". This jurisdiction is not available to either the High Court Division or the Subordinate Courts. National Board of Revenue vs Nasrin Banu and 5 others 48 DLR (AD) 171. |
National Board of Revenue vs Nasrin Banu and 5 others | 48 DLR (AD) 171 |
Article–105 |
In a review matter cannot re-assess the evidence afresh and re-hearing–
|
Bangladesh =VS= Allama Delwar Hossain Sayedee | 3 LM (AD) 538 |
Article 105 |
The Constitution of Bangladesh, 1972
|
Mufti Abdul Hannan Munshi =VS= The State | 3 LM (AD) 584 |
Article 105 |
Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
|
Raju Ahmed @ Raja Mia =VS= The State | 16 LM (AD) 643 |
Article 105 |
The Constitution of Bangladesh, 1972
|
Shamsu Habib alias Biddut =VS= The State | 14 LM (AD) 422 |
Article 105 |
C. P. No.3472 of 2015 is set aside. The High Court Division is directed to
dispose of the Rule–
|
Deputy Commissioner, Sylhet =VS= Md. Suruj Ali | 5 LM (AD) 300 |
Article 105 |
Review–
|
Abdul Mazid Sarker(Md.) =VS= Bangladesh | 5 LM (AD) 367 |
Article 105 |
Review— Modification of the ordering portion of the judgment–
|
Anwarul Huq =VS= Iqbal Ahmed | 3 LM (AD) 13 |
Article 105 |
The facts and circumstances and new papers produced in this Court which were not produced and considered by this Court earlier and that from the new materials produced in this Court it appears that in those papers the University authority and the writ petitioner approved the decision for confirmation of services of the appellants, we are of the view that the appellants are entitled to get relief because error has crept in earlier decision. .....Dr. Khairun Nahar =VS= Professor Dr. Iqbal Arshalan, (Civil), 2017 (2)– [3 LM (AD) 215] ....View Full Judgment |
Dr. Khairun Nahar =VS= Professor Dr. Iqbal Arshalan | 3 LM (AD) 215 |
Article 105 |
Review–
|
Lancaster Export Service Ltd =VS= Forseti Group Inc. | 3 LM (AD) 240 |
Article 105 |
Constitution of Bangladesh
|
Md. Zahangir Alam & ors Vs. The State | 18 SCOB [2023] AD 45 |
Article 105 |
Review–
|
Mominul Islam(Md.) =VS= Md. Aminul Islam | 3 LM (AD) 412 |
Article 105 |
Review–
|
Sultana Zahid Parvin =VS= S.M. Fazlul Karim | 6 LM (AD) 67 |
Article 105 |
There could be no ground for review once the case was disposed of on fact
and law as well.
|
Idris Ali Bhuiyan vs Enamul Haque | 43 DLR (AD) 12 |
Article 105 |
The Review Petition that has been filed and the grounds taken indicate that the petitioner now intends a rehearing of whole matter which is not permissible under Article 105 of the Constitution. Once the matter is disposed of on merit without any new material the same cannot be reconsidered. Hefazetur Rahman vs Kazi Anowar Hossain and others 53 DLR (AD) 89. |
Hefazetur Rahman vs Kazi Anowar Hossain and others | 53 DLR (AD) 89 |
Article 105 |
Merely reversing the order basing on the evidence on record would render the order in review without jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on ·the face of the record. Ershad Ali Sikder (Md) vs State 56 DLR (AD) 87. |
Ershad Ali Sikder (Md) vs State | 56 DLR (AD) 87 |
Article 105 |
Appellate Division of the Supreme Court of Bangladesh has power to review its own judgment acting on its own. Mabubur Rahman Sikder vs Mujibur Rahman Sikder 37 DLR (AD) 145. |
Mabubur Rahman Sikder vs Mujibur Rahman Sikder | 37 DLR (AD) 145 |
Article 106 |
The President's satisfaction that a question of law has arisen, or is likely to arise, and that it is of public importance and that it is expedient to obtain the opinion of the Supreme Court justifies a Reference at all times under the Article. Though it is not obligatory upon the Court to give an opinion, it will be unwilling to decline a reference except for good reasons. Special Reference No I of 1995, 47 DLR (AD 111. |
47 DLR (AD 111 | |
Article 107(1) |
So the rules must be framed for deciding what class of cases will be heard and such rules must be framed by the High Court Division itself subject to Article 107 (I), the Chief Justice then initiates the proposal for the "approval" of the Chief Executive namely, the President. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Articles 107(1)(2)(3) and 113 |
Constitutional responsibility of the Chief Justice to determine which judges are to constitute a Bench or Division of the Supreme Court– Rule making power has been given to the Supreme Court and the Supreme Court may delegate any of its functions to a Division of that Court or to one or more Judges. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 107(3) |
A litigant or Judge is not entitled to have any say in the selection of any Judge or Judges who are to constitute a particular Bench. It is the Chief Justice of Bangladesh who exercises the power under Article 107(3) of the Constitution and is to decide such constitution of Benches. (Para-6); .....The State =VS= Mr. Swadesh Roy, (Civil), 2017 (1)– [2 LM (AD) 576] ....View Full Judgment |
The State =VS= Mr. Swadesh Roy | 2 LM (AD) 576 |
Article 107(1) |
Trade Mark Act, 2009;
Section 2(12), 100
|
Kazi Md. Kamrul Islam Vs. Registrar, Dep. of PDTM & ors | 18 SCOB [2023] HCD 1 |
Article-108 |
Contempt of court may be classified into three categories, namely (1) disobedience of court orders and breach of undertakings given to the court, (2) scandalisation of the court and (3) interference with the administration of justice. The first category is termed as civil contempt, whereas the other two categories are contempt of a criminal nature. In the facts and circumstances of the instant case, we are not concerned with the first category since there is no allegation of any breach or non-compliance by the contemnors-respondents of any order issued by this Court. The question to be considered is whether the respondents have made comments/remarks which scandalise the Court or which interfere with the administration of justice. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment |
The State =VS= Adv. Md. Qamrul Islam, M.P & another | 1 LM (AD) 28 |
Article 108 |
Punishment–
|
The State =VS= Adv. Md. Qamrul Islam, M.P & another | 1 LM (AD) 28 |
Article 108, 112, 103(2)(C) r/w |
Constitution of Bangladesh, 1972
|
Md. Nurunnabi Bhuiyan =VS= Md. Abdullah Al Masud Chowdhury | 16 LM (AD) 80 |
Article 109 |
In a case where a statute bars entertainment of a revision the exercise of supervisory power under Article 109 of the Constitution is not available. Hosne Ara Begum and another vs Islami Bank Bangladesh Limited 53 DLR (AD) 9. |
Hosne Ara Begum and another vs Islami Bank Bangladesh Limited | 53 DLR (AD) 9 |
Article 109 |
The Courts and tribunals will be under the superintendence and control of the High Court Division, being subordinate to it but the control and discipline of persons employed in the judicial service and magistrates exercising judicial functions is vested in the President. This distinction stares in the face of our Constitution. There is a diarchy in our constitutional scheme. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Articles 109 |
The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by the High Court Division of the Supreme Court shall be binding on all courts subordinate to it all District Courts are subordinate to the High Court Division. It is not subordinate to the Ministry of Law and Justice Department. .....Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others, (Civil), 2016-[1 LM (AD) 267] ....View Full Judgment |
Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others | 1 LM (AD) 267 |
Article 109 and 116 |
This amendment is in direct conflict with article 109, which provides that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the Executive controls the posting, promotion and discipline, disciplinary action is not clear to me. (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Articles 109, 116 and 116A |
The superintendence and control of the officers of the lower Judiciary
remains with the Supreme Court–
|
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 111 |
Binding effect of the Judgment of the Supreme Court will be nullified because of the conflicting decisions of two or more Permanent Benches. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 111 |
Money Laundering Protirodh Ain, 2012
|
Hafiz Ibrahim (Md), (Former MP) =VS= State | 12 LM (AD) 493 |
Article 111 |
To succeed a postulant must show that the Appellate Division resorted to a fundamental error of law, which remains apparent on the face of the judgment. One of the most striking examples would be where the Appellate Division acted per incuriam or overlooked one or more statutory provisions. As the doctrine of stare decisis does not bind the Appellate Division under Article 111 of the Constitution, a review petitioner can not invoke that doctrine. There are authorities for the proposition that fresh evidence, which has bearing on the event under consideration, but despite best efforts, could not be obtained during the original or appellate hearing, can have effect on review hearing. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392] ....View Full Judgment |
Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka | 4 LM (AD) 392 |
Article 111 |
Code of Civil Procedure, 1908
|
Aziz Ara Rahman Vs. RAJUK and others | 19 SCOB [2024] AD 1 |
Article 111 & 149 |
The Constitution of Bangladesh, 1972
|
Terab Ali =VS= Syed Ullah | 13 LM (AD) 555 |
Article 111 |
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 |
State Vs. Abdullah @Titumir @Titu | 18 SCOB [2023] HCD 20 |
Article 111 read with Article 149 |
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 |
Terab Ali & ors Vs. Syed Ullah & ors | 17 SCOB [2023] AD 34 |
Article 111 |
Which precedents are applicable in our jurisdiction:
|
Terab Ali & ors Vs. Syed Ullah & ors | 17 SCOB [2023] AD 34 |
Article 111 and Article 149 |
Constitution of Bangladesh
|
Terab Ali & ors Vs. Syed Ullah & ors | 17 SCOB [2023] AD 34 |
Article 111 |
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.
|
Ministry of Posts, Bangladesh =VS= Shudangshu Shekhar Bhadra | 12 LM (AD) 258 |
Article 111 |
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 |
Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors | 18 SCOB [2023] AD 11 |
Article 111 |
Code of Civil Procedure, 1908
|
Aziz Ara Rahman =VS= RAJUK | 16 LM (AD) 623 |
Article 111 |
Code of Civil Procedure, 1908
|
Babru Mia =VS= Mosammat Noorjahan Begum | 16 LM (AD) 631 |
Articles 111 |
Article 111 provides that the ‘law’ declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 28] ....View Full Judgment |
The State =VS= Adv. Md. Qamrul Islam, M.P & another | 1 LM (AD) 28 |
Article 111 |
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 |
Aziz Ara Rahman Vs. RAJUK and others | 19 SCOB [2024] AD 1 |
Article 111 |
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 |
Shafiqul Islam and another Vs. Bangladesh & others | 2 SCOB [2015] HCD 54 |
Article 112 |
While the High Court Division's order is in force, no question of waiting
for the Ministry's approval to comply with the High Court Division's order,
as Article 112 of the Constitution, obligates all authorities, executive,
judicial, alike to follow orders passed by the Supreme Court, without
exception or qualification.
|
Md.Alauddin Miah and another-Vs.-Md. Shahidul Islam Khan and others | 4 ALR (AD) 156 |
Article 113 |
Article-113 read with Administrative Tribunals Act, 1980
|
Bangladesh & Ors. Vs. S. M. Fariduddin & Ors. | 11 BLT (AD) 51 |
Article 114 |
The constitutional implication of this Article is that the subordinate judiciary, unlike the Supreme Court of Bangladesh, is not a creature of the Constitution but of law. Secretary.. Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary.. Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Articles 115 & 116A |
While making recruitment rules under Article 115 it has to be borne in mind that Article 116A will be meaningless without judicial autonomy. Judicial autonomy requires that judicial appointments shall be made on merit by a separate judicial service commission which may be established either by a statute or by the President while framing rules under Article 115. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Articles 115 & 136 |
The judicial service has a permanent entity as a separate service altogether and it must always remain so in order that Chapter 11 of Part VI is not rendered nugatory. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Section 115 |
Framing Rules by the President
|
Secretary, Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, | 21 BLD (AD) 126 |
Article 116 |
When Election the Commission accepted the formation of the electoral committee which was formed with the approval of the Supreme Court the petitioner has no cause to be apprehensive about the formation of the committee. Bangabir Kader Siddiqui, BU vs Government of Bangladesh and ors 54 DLR (AD) 64. |
Bangabir Kader Siddiqui, BU vs Government of Bangladesh and ors | 54 DLR (AD) 64 |
Articles 116A & 136 |
While the function of the civil administrative executive services is to assist the political executive in formulation of policy and in execution of the policy decisions of the Government of the day, the function of the judicial service is neither of them. It is an independent arm of the Republic which sits on judgment over parliamentary, executive and quasi–judicial actions, decisions and orders. To equal and to put on the same plane the judicial service with the civil administrative executive services is to treat two unequals as equals. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 116A |
Members of the judicial service are not holders of the constitutional posts
but they being public servants are in the service of the Republic:
|
Bangladesh Vs. Md. Ataur Rahman & ors. | 9 SCOB [2017] AD 1 |
Article 116A |
Natural justice violation– The judicial functions cannot be evaluated by
the Administrative Authority–
|
Sharif Hossain Hyder =VS= Sonali Bank & others | 1 LM (AD) 102 |
Article 116A |
Members of the judicial service are not holders of the constitutional posts
but they being public servants are in the service of the Republic–
|
Bangladesh =VS= Md. Ataur Rahman | 4 LM (AD) 40 |
Article 117 |
Same will be case in matter of superintendence of the subordinate courts because of the absence of any central organ to discharge this duty. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 117 |
Departmental proceeding against government servant– Administrative Tribunal's jurisdiction to give relief–If the petitioner, a Government servant, can establish a case of 'double jeopardy' on facts he can invoke the law under which he is proceeded against which cannot be opposed to Fundamental Rights and the Tribunal is competent to enforce the statute. Md Serajul Islam vs The Director General of Food 42 DLR (AD) 199. |
Md Serajul Islam vs The Director General of Food | 42 DLR (AD) 199 |
Article 117 |
The Administrative Tribunals are not like the High Court Division or the subordinate Court over which the High Court Division exercises both judicial review and superintendence. They are set apart, as sui generis, in a separate chapter. The Parliament can make more tribunals for matters relating to or arising out of sub–clause (a) of Article 117(1 ). Mujibur Rahman vs Bangladesh 44 DLR (AD) 111. |
Mujibur Rahman vs Bangladesh | 44 DLR (AD) 111 |
Article 117 |
The Constitution made provisions in Article 117 for conferring state's judicial powers on some tribunals that may in future cumulate some of the attributions which are divided between the formal court system and the growing practice of adjudication of disputes by tribunals. Mujibur Rahman vs Government of Bangladesh and others 44 DLR (AD) 111. |
Mujibur Rahman vs Government of Bangladesh and others | 44 DLR (AD) 111 |
Article 117 |
In deciding whether the order in question was one under MLO No. 9, the Tribunal held that the order became effective from the date it was passed, the High Court Division held that it did not become effective because of non–communication. For this exercise the power of judicial review was not necessary. The Tribunal was competent to decide the issue. Bangladesh and others vs Mahbubuddin Ahmed 50 DLR (AD) 154. |
Bangladesh and others vs Mahbubuddin Ahmed | 50 DLR (AD) 154 |
Article 117(1) |
Because of the non–obstante clause in Article 117(1 ), there can be no grievance on the ground that there has been an amalgamation of judicial and non–judicial functions or conferral of judicial function on a non–judicial body in violation of the provisions as to the judiciary in the Constitution. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111. |
Mujibur Rahman vs Bangladesh | 44 DLR (AD) 111 |
Article 117(2) |
Further ground allowed by the Court to be urged by the appellant. Finding
of the Board of Inquiry– Only the Chief Engineer was competent to draw
proceeding but defendant No. 2(appellant) continued with his litigation in
spite of this finding–Had the appellate Court's order been accepted by
defendant No. 2, the question of giving salary during the litigation period
would not have arisen.
|
Executive Engineer, Public Health vs Mohammad Ali | 41 DLR (AD) 64 |
Article 117(2) |
Jurisdiction of administrative Tribunal– It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article I 02(1) is not frittered away or misused. Mujibur Rahman vs Government of Bangladesh and others 44 DLR (AD) 111. |
Mujibur Rahman vs Government of Bangladesh and others | 44 DLR (AD) 111 |
Article 117 |
Exceptions where no deposit is necessary for preferring appeal in an
Artharin Suit:
|
Faizun Nabi Chowdhury -Vs.- The Judge Artharin Adalat No. 1, Dhaka and others | 2019 ALR (HCD) Online 115 |
Article 117(1), 117(2) |
Constitution of Bangladesh, 1972
|
Rabiul Karim(Md.) =VS= Golam Morshed Khan | 13 LM (AD) 272 |
Article 117 |
The Constitution of Bangladesh, 1972
|
Ministry of Education, Dhaka =VS= GMM Mizanur Rahman Bhuiyan | 6 LM (AD) 32 |
Article 117(2) |
There is common question of law involve for the consideration of the
following points:
|
Government of Bangladesh =VS= Sontosh Kumar Shaha | 4 LM (AD) 143 |
Article 118 |
For exercising and performing any powers or functions under this Order the acting Chief Election Commissioner must get authorization from the Commission itself, otherwise his action under the Order will be coram nonjudice and without jurisdiction. Jatiya Party vs Election Commission for Bangladesh and others 53 DLR (AD) 38 |
Jatiya Party vs Election Commission for Bangladesh and others 53 DLR (AD) 38 | 53 DLR (AD) 38 |
Articles 118 and 119(2) |
Section 2 subsection (7) defines "Election Commission" which means the Election Commission for Bangladesh. The Election Commission of Bangladesh is constituted under Article 118 of the Constitution. Article 119(2) says that the Election Commission shall perform such functions in addition to those specified in clause (I) as may be prescribed by the Constitution or by any other law. AFM Shah Alam vs Mujibul Haq 41 DLR (AD) 68. |
AFM Shah Alam vs Mujibul Haq | 41 DLR (AD) 68 |
Articles 118(4), 120 |
Election Commission Secretariat Act, 2009
|
Bangladesh Secretariat =VS= Md. Abdul Alim | 13 LM (AD) 627 |
Article 119 |
Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair election. Altaf Hussain vs Abul Kashem 45 DLR (AD) 53. |
Altaf Hussain vs Abul Kashem | 45 DLR (AD) 53 |
Article 119(2) |
The Local Government (Union Parishad) Rules 2010
|
Election Commission, Bangladesh =VS= Noruzzaman Sarker | 6 LM (AD) 98 |
Article 119(2) |
The Local Government (Union Parishad) Rules 2010
|
Election Commission, Bangladesh =VS= Noruzzaman Sarker | 6 LM (AD) 98 |
Articles 121 & 122(1) |
Electoral roll and basis of franchise–Members for seats reserved exclusively for women are to be elected by members of the Parliament according to law. President's Order 17 of 1973 provides for that law. There is no conflict between the amendment done by Constitution (Tenth Amendment) Act providing for election to the reserved seats and Articles 121 & 122(1) of the Constitution. Dr. Ahmed Hussain vs Bangladesh 44 DLR (AD)109. |
Dr. Ahmed Hussain vs Bangladesh | 44 DLR (AD)109 |
Article 122(2) |
Provides for securing the rights of a citizen by enlistment in the
Electoral Roll-Electoral Rolls Ordinance, 1982— Section 7~ Provides for
maintaining continuity of electoral rolls—
|
Election Commission represented by the Chief Election Commissioner Vs. Alhaj Advocate Molmimnad Rahmnt All, MP and others 1 | 1 MLR (AD) 345 |
Article 123 (3) and 148(3) |
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 | 19 SCOB [2024] HCD 66 |
Article 123 (3) and 148(3) |
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 | 19 SCOB [2024] HCD 66 |
Article 123(3) r/w Article 148(3) and 72(3) |
Deeming provision:
|
Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors | 19 SCOB [2024] AD 10 |
Article 123(3) r/w 148(3) & 72(3) |
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 |
Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad | 16 LM (AD) 500 |
Article 123(3) r/w 148(3) & 72(3) |
Public Demands Recovery Act, 1913
|
Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad | 16 LM (AD) 500 |
Article 125 |
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
|
Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. | 12 SCOB [2019] HCD 39 |
Article 128 |
Constitution of Bangladesh,
|
Bangladesh and ors Vs. Radiant Pharmaceuticals Ltd | 16 SCOB [2022] AD 1 |
Article 133 |
It is not obligatory for the Parliament to make laws. No Court can similarly direct the President to make rules, because the rule–making power of the President is identical with that of the Parliament. Bangladesh vs Shafiuddin Ahmed and 2 others 50 DLR (AD) 27. |
Bangladesh vs Shafiuddin Ahmed and 2 others | 50 DLR (AD) 27 |
Articles 133 & 136 |
Article 115, 133 or 136 does not give either the Parliament or the President the authority to curtail or diminish the independence of ·the subordinate judiciary by recourse to subordinate legislation or rules. What cannot be done directly, cannot be done indirectly. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 133 |
BADC Service Regulations, 1990 r/w
|
Bakhrabad Gaz System Ltd. =VS= Md. Shamsul Alam | 7 LM (AD) 153 |
Article 133 |
Rule making power has been given upon the President–
|
Mahfuza Akhter Shimul =VS= Delwar Hossain | 5 LM (AD) 120 |
Section 133 |
Separate Judicial Service Commission
|
Secretary, Ministry of Finance and others Vs Mr. Md. Masdar Hossain and others, | 21 BLD (AD) 126 |
Article 134 |
As malafide vitiates every exercise of power, a malafide exercise of pleasure by the President under Article 134 of the Constitution can be brought within the purview of judicial review, if the other provisions of the Constitution are not a bar. Rear Admiral AA Mustafa vs Bangladesh, represented by the Secretary Ministry of Defence, Dhaka 51 DLR (AD) 146 |
Rear Admiral AA Mustafa vs Bangladesh, represented by the Secretary Ministry of Defence, Dhaka | 51 DLR (AD) 146 |
Article 134 |
Persons appointed –to the Secretariat of Parliament and the Staff of the Supreme Court, although governed by separate terms and conditions of service, are entitled to the protection of Article 134, because they are public officers holding or acting in an office of emolument in the service of the Republic. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 134 |
The definition of "the service of the Republic" uses the word "Government" in a generic sense. On that ground the members of the judicial service cannot be excluded from the ambit of "the service of the Republic". Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 135 |
Managing Committee adopted the Government Civil Service Rules for its convenience. Such adoption does not make the Rules as having statutory force. Bangladesh vs Md Alauddin 38 DLR (AD) 81. |
Bangladesh vs Md Alauddin | 38 DLR (AD) 81 |
Article 135 |
Government Civil Service Rules adopted by a Co–operative Bank for guidance of the Bank–such rules by their adoption by the Co–operative Bank do not extend the protection given to a government servant. Bangladesh vs Md Alauddin 38 DLR (AD) 81. |
Bangladesh vs Md Alauddin | 38 DLR (AD) 81 |
Article 135 |
Benefits enjoyed by Government servants made available to the Bank's employees– They do not thereby become Government servants. Bangladesh vs Md Alauddin 38 DLR (AD) 81. |
Bangladesh vs Md Alauddin | 38 DLR (AD) 81 |
Article 135 |
An order for compulsory retirement by way of penalty amounts to removal from service for which protection under Article 135 is available. Government of the People's Republic of Bangladesh vs Abdul Motaleb Dewan 45 DLR (AD) 108. |
Government of the People's Republic of Bangladesh vs Abdul Motaleb Dewan | 45 DLR (AD) 108 |
Article 135 |
Provisions of this Article cannot be invoked by the employee's corporations
as they stand outside the class of employees referred to therein as
"persons in the service of the Republic"~ These employees are not governed
by the law of master and servant either– They will be governed by the
rules & regulations or agreement of their employment in the absence of
which their termination shall be governed by the principle of natural
justice.
|
Bangladesh Bank vs Mohammad Abdul Mannan | 46 DLR (AD) 1 |
Article 135 |
A postal clerk asked to act as an Inspector on purely temporary basis was reverted to his substantive post after about five years' service–Whether this reversion amounts to reduction in rank– The uninterrupted service rendered by the. respondent–employee for about five years even if considered as "non–temporary or quasi–permanent" cannot be termed reduction in rank to attract constitutional protection. The relevant order indicates that it was never meant to be an order of promotion. In the facts of the case the respondent was not entitled to any show cause notice nor was there any violation of the principle of natural justice. His contention that he has acquired a vested right in the post of Inspector must fail. Bangladesh vs Md Fazlul Huq 43 DLR (AD) 144. |
Bangladesh vs Md Fazlul Huq | 43 DLR (AD) 144 |
Article 135 |
A person holding a civil post is entitled to a second show cause notice in the event of his dismissal, removal or reduction in rank. This is a constitutional protection available to such a person. DG, Prisons & others vs Md Nasim Uddin 53 DLR (AD) 30. |
DG, Prisons & others vs Md Nasim Uddin | 53 DLR (AD) 30 |
Article 135 |
Article 135 of the Constitution speaks of Constitutional protection of all persons holding civil posts in the service of the Republic. The members of judicial service and magistrates exercising judicial functions are in the service of the Republic holding civil posts and as such they cannot. be deprived of this constitutional protection. Article 135 of the Constitution deals with dismissal, removal or reduction in rank of a person who holds a civil post. The Members of judicial service and magistrates exercising judicial functions are no doubt holding civil posts and public offices as they get emolument and render service to the Republic. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 135 |
Bangladesh Bank (Staff) Regulations– Bangladesh Bank Staff Regulations are protected legislation like its parent law, the Bangladesh Bank Order. The constitutionality of these Regulations stand beyond any question and cannot be declared void being inconsistent with the equality clause of the Constitution. Bangladesh Bank vs Mohammad Abdul Mannan 46 DLR (AD) 1. |
Bangladesh Bank vs Mohammad Abdul Mannan | 46 DLR (AD) 1 |
Article 135(2) |
Government Servants (Discipline and Appeal) Rules, 1985
|
Ministry of Forest, Bangladesh =VS= Kiran Sankar Sarker | 15 LM (AD) 447 |
Article 136 |
Per Latifur Rahman J. : Article 136 of Part IX speaks of re–organization of service of the Republic by creation, amalgamation or unification of services and such law may vary or revoke any condition of service of a person employed in the service of the Republic. This concept of reorganisation of service is available to all other civil posts including executive service of Republic other than members of the judicial service and magistrates exercising judicial functions as they have been treated separately under Articles 115, 116 and H6A of the Constitution. Article 136 refers to all general services of civil posts. 'Judicial service' has been separately treated in the relevant constitutional provisions and as such conditions of service is to be separately framed under Article 133 and it cannot be tagged as Bangladesh Civil Service (Judicial) under paragraph 2(x) of Act XXXII of 1975. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 136 Para l0(2)(b) 4th Sch |
The very concept of weighing two different classes of persons in the
service of the Republic in the same scale and to fix for them corresponding
grade and scale of pay is a twisting of the Constitutional scheme and is an
anathema to the concept of judicial independence. Secretary, Ministry of
Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82.
|
Anwar Hussain Chowdury vs Bangladesh | 41 DLR (AD) 165 |
Article 140(2) |
The words "the President shall consult a commission" is not mandatory. When a law or regulation is framed requiring consultation but no consultation is made, the Court may interfere in the public interest. Bangladesh vs Shofiuddin Ahmed and 2 others 50 DLR (AD) 27. |
Bangladesh vs Shofiuddin Ahmed and 2 others | 50 DLR (AD) 27 |
Article 141B |
The writ petition was directed /predominantly against the alleged cancellation of approved plan in violation of provision of Building Construction Act but passingly alleged violation of certain Articles contained in Chapter III of the Constitution have been mentioned but the same has nothing to do with the decision in the matter in accordance with law which is basically designed challenging the legality or otherwise of the impugned orders i.e. cancellation of the approved plan, rejection of their appeal and consequent demolition of the Building under the provision of the Building Construction Act/Rules. It may be passingly mentioned that when any violation of any fundamental right enumerated in Chapter III of the Constitution was alleged as the only ground under reference and no violation of legal right or law has been alleged whatsoever without reference to the provision of law protecting the right of a citizen, we are of the view that only then and then possibly resort may be taken to fundament right to protect any citizen of such rights enshrined and guaranteed in the Constitution. Otherwise, it is too much stressing a point to invoke the fundamental rights enshrined in the Constitution when the petition is basically centered round violation of any legal right by any authority/body in exercise of authority under any specific law or legal principles under any statute alleging violation of any law or rule. But any alleged violation of fundamental right enshrined in the Constitution in the instant case is too much stressing the point so far as to bring within the purview of the bar of hearing during the continuance of the Proclamation of Emergency suspending the enforcement of certain rights as mentioned in Chapter III of the Constitution as provided under Article 141 B of the Constitution of the Peoples Republic of Bangladesh. Chairman, RAJUK & Anr Vs. A. Rouf Chowdhury & Ors 16 BLT (AD)279 |
Chairman, RAJUK & Anr Vs. A. Rouf Chowdhury & Ors | 16 BLT (AD) 279 |
Article 141 C(D |
Declaration of emergency by the President suspending the enforcement of
fundamental rights is not subject of scrutiny by the court—
|
Ataur Rahman (Md.) and others Vs. B.M Mahibur Rahman and others | 14 MLR (AD) 138 |
Article 142 |
A Constitution is not a mere Act which declares what law is to be– The power to amend the Constitution is within the Constitution itself– The term 'amendment' implies an addition or change within the lines of the original instruments as will effect an improvement or better carry out the purpose of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 |
Interpretation of Constitution – Constitution and its amendment–Amendment shall have to pass some test before it becomes a part of the constitution. Manner of applying test– Strict compliance with mandatory procedural requirements– Practicing no deception or fraud upon statutes and not so repugnant to the existing provision of the Constitution that its co– existence therewith will render the Constitution unworkable – Doctrine of bar to change of basic structure, if accepted, what effect it will have on the basic structure of the constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 |
Interpretation of Statute Amendment– meaning of the expression – of a
statute may have various meanings depending upon its context–Whether an
amendment is a repeal– Difference between 'amendment' and 'repeal".
|
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 |
Implied limitation on the amending power inherent in the word "amendment" in Article 142–Amendment of the Constitution is not its elimination or abrogation and is subject to the retention of the basic structures–Court has power to undo an amendment if it transgresses its limit and alters a basic structure of the Constitution. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 |
Long title of the amending Bill. The purpose for the long title is to give a notice to the Members of the Parliament and there is nothing on record to show that any Member of the Parliament felt aggrieved or misled for the long title not being really a long one. Therefore, I reject the appellants' objection as to the non–compliance of procedural requirement in passing the impugned amendment. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142(1) |
Bill– Long title– Clause(1) to the proviso in Article 142 does not mandatorily require that the subject or the object of the law is to be expressed in the long title of the bill. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article l42 (1A) |
Not a case of "Vague doctrine of repugnancy"–Limitation on legislative competence–Preamble and Article 8 cannot be amended without referendum. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 (1A)– |
Constitution of Bangladesh–Preamble– Amendability of the Preamble–Its rigidity–It can only be amended by the people at referendum. Anwar Hussain Chowdhury vs Bangladesh 41 DLR (AD) 165. |
Anwar Hussain Chowdhury vs Bangladesh | 41 DLR (AD) 165 |
Article 142 |
The power to amend the Constitution is different from the power to amend ordinary law. The distinction between the legislative power and the constituent power is vital in a rigid Constitution. When Parliament is engaged in the amending process it is not legislative, it is exercising a particular power bestowed upon it sui generis by the amending clause in the Constitution. (Hasan Foez Siddique, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
article 143 (1) (c) |
Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950
read with
|
Sufia Bewa and ors Vs. Md. Aminul Islam and ors | 19 SCOB [2024] HCD 85 |
Article 143 (1) (c) |
The Constitution of Bangladesh, 1972
|
Khandakar Nurul Islam(Md.) =VS= Deputy Commissioner, Panchagarh | 12 LM (AD) 60 |
Article 145(2) |
The official liquidator executed the agreement on behalf of the government in exercise of the executive authority of the Republic under article 145(2) of the constitution. Even if Durnity Daman Commission finds irregularity in the process of transfer of the mills, the writ petitioner’s right cannot be affected, inasmuch as, the government has accepted two installments towards the consideration and handed over possession of the mills and that the government has not taken any disciplinary action against the officials who were involved in the process of transfer of the mills. .....Bangladesh =VS= Refat Garments Limited, (Civil), 2017 (2)– [3 LM (AD) 104] ....View Full Judgment |
Bangladesh =VS= Refat Garments Limited | 3 LM (AD) 104 |
Articles 147(1) and (2), 118 |
The Constitution of Bangladesh, 1972
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Government of Bangladesh =VS= M.A. Syed | 15 LM (AD) 11 |
Article 147 |
Salary of Supreme Court Judges being exempted from Taxation it could not be
included for the purpose of Taxation while computing their total Income.
The position could not be affected by the notification issued in exercise
of powers under the income Tax Act, the Act cannot control the provision of
the President's Order that has provided for the exemption and achieved the
status of sub–constitutional Legislation.
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Commissioner of Taxes, Dhaka (West) Zone vs Shahabuddin Ahmed | 42 DLR (AD) 162 |
Article 147 |
The removal of Judges being part and parcel of their terms of service, the amendment is in violation of article 147 of the Constitution. (Muhammad Imman Ali, J). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, (Civil), 2019 (1) [6 LM (AD) 272] ....View Full Judgment |
Government of Bangladesh =VS= Asaduzzaman Siddiqui | 6 LM (AD) 272 |
Article 148(3), 123(3) and 72(3) |
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 |
Md. Taherul Islam =VS= Speaker, Bangladesh Jatiya Sangsad | 16 LM (AD) 500 |
Article 148 (3) and 123 (3) |
“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 |
Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors | 19 SCOB [2024] AD 10 |
Articles 149 and 150 |
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 |
Ministry of Industries, Bangladesh =VS= Bangladesh Italian Marble Works Ltd.(5th Amendment Case, C. Rev. P.) | 15 LM (AD) 385 |
Article 150, 95, 6, 44, 102 |
The judgment of the High Court Division is approved subject to the
following modifications:-
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Khondker Delwar Hossain =VS= Bangladesh Italian Marble Works Ltd.(5th Amendment Case, C. P.) | 15 LM (AD) 270 |
Article 150 |
Article 150 of the Constitution does not protect any piece of legislation under paragraph 10(2)(b) from challenge regarding its constitutionality. What Article 150 protects are the provisions contained in the Fourth Schedule of the Constitution. Dr. Nurul Islam Vs. Bangladesh and others, 1BLD(AD)140 |
Dr. Nurul Islam Vs. Bangladesh and others, | 1 BLD (AD) 140 |
Article 150 |
Means to protect acts done in transitional period—
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15 MLR (AD) 315 | |
Article 152 |
Pension is not a bounty of/or ex–gratia payment by the State as used to be considered once. Payment of pension is an obligation on the part of the State. Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr 51 DLR (AD) 121. |
Bangladesh Retired Government Employees Welfare Association & others vs Bangladesh and anr | 51 DLR (AD) 121 |
Article 152(1) |
The definition of "the service of the Republic" in Article 152(1) is broad and includes defence and judicial services, but that does not mean that the judicial service or the defence service is a part of the civil or administrative service. Services of different categories and status are included in the service of the Republic. Members of the judicial service wield the judicial powers of the Republic. They cannot be placed on par with the civil administrative executive services in any manner, Their nomenclature of service must follow the language employed by the Constitution. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |
Article 152 |
“Law” means
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Government of Bangladesh and others -Vs.- Advocate Asaduzzaman Siddiqui and others | 10 ALR (AD) 1 |
Article 152 |
The definition of "statutory public authority" under Article 152 of the
Constitution:
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Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors | 19 SCOB [2024] AD 125 |
Article 152 |
Town Improvement Act, 1953
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Rajdhani Unnaiyan Kartipakkha =VS= Begum Sitara Chowdhury | 15 LM (AD) 102 |
Article 152 |
There are set of customs and usages which are being followed by the Judges in this subcontinent for over a century and those customs and usages have the force of law. Thus, if a Judge violates any of the established conduct, usage or custom, he will not only commit gross-misconduct but also violates his oath, the Constitution and the law. …Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors, (Civil), 7 SCOB [2016] AD 1 ....View Full Judgment |
Idrisur Rahman & ors Vs Syed Shahidur Rahman & ors | 7 SCOB [2016] AD 1 |
Article 152 |
Cittagong Hill Tracts Regulation 1900
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Pruesiau Aug Marma & anr. Vs. Aungmra Shang Marma & anr. | 14 SCOB [2020] HCD 133 |
Article 152 |
There are set of customs and usages which are being followed by the Judges in this subcontinent for over a century and those customs and usages have the force of law. Thus, if a Judge violates any of the established conduct, usage or custom, he will not only commit gross-misconduct but also violates his oath, the Constitution and the law. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231] ....View Full Judgment |
Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman | 4 LM (AD) 231 |
4th Schedule (Para 19(2) |
Power of review under the Martial Law Regulation– Extent and limit of the power–Any attempt to measure the extent or limit of power of this review with reference to powers exercisable under the Code of Criminal Procedure will be misleading. This will have to be determined by examining the terms of the Regulation. Upon a plain reading of the Regulation it cannot be doubted that the reviewing authority, among others, has the power to "vary" a judgment, even if it is of acquittal. The word "vary" in Regulation 3(4) includes the power to convert a judgment of acquittal into one of conviction. Helaluddin Ahmed vs Bangladesh 45 DLR (AD) 1. |
Helaluddin Ahmed vs Bangladesh | 45 DLR (AD) 1 |
4th Schedule (Para 19) |
Constitutional protection, plea of–The contention that the impugned order of termination of the employee was protected just because the president of the employer Trust happened to be the Chief Martial Law Administrator as well cannot be held correct when nothing was done under Martial Law of any Martial Law regulation in the matter. Freedom Fighter's Welfare Trust vs Momtazul Hossain 44 DLR (AD) 274. |
Freedom Fighter's Welfare Trust vs Momtazul Hossain | 44 DLR (AD) 274 |
4th Schedule (Para 19(2)) |
Principle of natural justice–When the principle cannot be invoked– The review contemplated in Reg. 3 is a part of the original proceeding. There is no case that the appellants were not represented in the trial or prevented from appearance. In such circumstance it is difficult to accept that they ought to have been heard also at the time of reviewing the proceedings. Having regard to the language used in Para 19(2) of the Fourth Schedule, it will not be possible to successfully invoke any violation of the principle of natural justice. Helaluddin Ahmed vs Bangladesh 45 DLR (AD) 2. |
Helaluddin Ahmed vs Bangladesh | 45 DLR (AD) 2 |
4th Schedule (Para 10(2)(b)) & Article 136 |
The very concept of weighing two different classes· of persons in the service of the Republic in the same scale and to fix for them corresponding grade and scale of pay is a twisting of the Constitutional scheme and is an anathema to the concept of judicial independence. Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others 52 DLR (AD) 82. |
Secretary, Ministry of Finance Dhaka vs Md Masdar Hossain and others | 52 DLR (AD) 82 |