Authority of the Executive Committee of the Orphanage to deal with property; The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. …Mir Showkat Ali & ors. Vs. Md. Morsalin Khan & ors., (Civil), 12 SCOB [2019] AD 8 ....View Full Judgment

Abandoned property, suit for specific performance contract; In the suit for specific performance of contract the declaration of the suit property is not an abandoned property, is beyond the scope of the suit and such declaration has no legal value at all. …Govt. of Bangladesh Vs. Abdul Mannan & ors., (Civil), 13 SCOB [2020] AD 1
In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree. …Govt. of Bangladesh Vs. Abdul Mannan & ors., (Civil), 13 SCOB [2020] AD 1 ....View Full Judgment

Abolition of Death Penalty is not Possible: Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1

Rule of law is the basic rule of governance of any civilized society. The scheme of our Constitution is based upon the concept of rule of law. To achieve the rule of law the Constitution has assigned an onerous task upon the judiciary and it is through the courts, the rule of law unfolds its contents. One of the important concept of the rule of law is legal certainty. Judicial review of administrative action is an essential part of rule of law and so is the independence of judiciary. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1

We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1 ....View Full Judgment

An act constitutes contempt if it is calculated to or has the tendency of interfering with the due course of justice. The object of the discipline enforced by the court in the case of contempt of court is not to vindicate the dignity of the person of the Judge but to prevent undue interference with the administration of justice. The confidence in courts of justice which the public possess must in no way be tarnished, diminished or wiped out by contumacious behaviour of any person. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

An unbroken chain of authorities, in prevalence from the days of the Raj, confirm that the power of a Court of record, is inherent. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Legislation that derogates or abridges Supreme Court’s constitutional and inherent power, is void. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

It is conceded that although the power cannot be taken away or materially interfered with, the legislature might regulate the exercise of the power by prescribing rules of practice and procedure. It is also stated that the existence of a remedy other than proceedings for contempt does not deprive a Court of its power to adjudicate a person in contempt which means that the fact that an act constituting a contempt is also criminal and punishable by indictment or other method of criminal prosecution, does not deprive the outraged court from punishing the contempt. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

There is no room for any controversy that the High Courts have power to punish summarily for contempt of Court committed by the publications of libels on the Courts or on the Judges; and, as Superior Courts of record, it also has the inherent jurisdiction to summarily punish contempts. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

The power to punish summarily for contempt is not a creature of statute but an inherent incident of every Court of record. This inherent jurisdiction cannot be wiped out. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

The law looks at the conduct of the person proceeded against in order to find out if it was calculated to produce an atmosphere of prejudice in the midst of which, the judicial proceedings have to go on. The test of guilt in such cases depends on the findings whether the matter complained of tended to interfere with the cause of justice, and not on the question whether such was objective sought, much less whether it was achieved. Neither desire to obstruct or prevent administration of justice, nor its fulfillment is counted in proceedings for contempt. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Intention is of no relevance or consequence so long as the words used in the publication tend to interfere with the course of justice or prejudice the public or the Court in the trial of the case. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

It is difficult to enumerate the acts which may amount to contempt of Court. The overriding question in all cases of contempt of Court must, however, be whether the action or remark of the alleged contemnor is or is not calculated to interfere with, interrupt or thwart the course of justice. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. Anything that tends to prejudice that fair trial by a Court, constitutes a contempt of Court. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Contempt is constituted when something is done, which is capable of interfering with the impartial flow of justice. To elaborate this, a plethora of high preponderant authorities command that nobody must make any comment about an issue which is awaiting adjudication in a Court of law because such comment may attempt to pervert the course of justice by influencing the mind of the Court or people at large and also by impliedly suggesting what should be the outcome of the proceeding at the end of the day. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

It is not essential, in order to constitute a contempt, that the act should be done publicly or publicized in any way. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Knowledge of the pendency of the proceeding is not a necessary ingredient of the offence of contempt of Court. All that is necessary is to show that a proceeding was actually pending at the time or was imminent. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

It is the contemner’s duty to take proper care and to make sure before issuing a statement regarding a sub-judice matter that no proceedings were pending before the Court or were contemplated. If he made no such enquiries then he clearly acted negligently and cannot take advantage of his negligence. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Fair criticism of the conduct of a Judge, may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sough to be achieved. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

Now, if a reasonable bystander analyses the ratio of all the cases discussed under the caption, “Kind of Comment that Constitutes Contempt”, he will no doubt hold that the comments in question are certainly contemptuous and hence punishable by this Court, because the contemnor has effectively passed a verdict on the matter which is awaiting adjudication by this Division. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28

The impugned comment constituted the offence, because; (1) by this comment the contemnor purported to usurp the function of this Division, (2) the comment has the potential of influencing the minds of the people at large as well of the judges, whether or not it actually generated that effect, (3) the comment amounted to prejudging the cause which was awaiting adjudication, (4) the comment was vibrant enough to lead the public as well as the judges concerned to reckon that by issuing the Rule and passing the interlocutory order, the Court resorted to illegality and that this Court was wrong as the contemnor claimed to have been right, (5) the comment amounted to an aspersion and insinuation on the merit of our order, and was capable of transmitting a suggestion that a wrongly passed order should be reversed, (6) in all, the comment amounted to a trial by a stranger, i.e., the contemner, which could seriously obstruct the right course of justice and cause its deviation. ...Dr.Mohiuddin Khan Alamgir Vs. Sohul Hossain, (Civil), 1 SCOB [2015] HCD 28 ....View Full Judgment

The appellate court being last and final court of fact will have to discuss and reassess the evidence on record independently while reversing or affirming the findings of the trial court. In case of reversal it is more incumbent upon the appellate court to reassess the evidence to arrive at his own independent finding. The findings of the trial court should not be easily disturbed as a matter of course and before reversing the findings and decisions of the trial court the appellate court should think twice or more than twice. ...Zila Mahila Bisayak Karmakorta Vs. Principal, Mohila College, Ishuardi, (Civil), 3 SCOB [2015] HCD 68 ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal in accordance with law on the evidence on record. If so advised, the defendants may file the documents which were exhibited before the trial Court and were taken back by them. The High Court Division shall consider those documents, if filed, along with the evidence on record. But in no case the High Court Division shall send the case back to either of the Courts below. .....Abul Hossain =VS= Jiban Nessa, [3 LM (AD) 1] ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, rule 13 of the Code if, in fact, summons was not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down.
We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this petition is disposed of in the following terms: The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal on merit in accordance with law considering the evidence. .....Masum Billah(Md.) =VS= Md. Saidur Rahman, [3 LM (AD) 268] ....View Full Judgment

Allotment of an Industrial plot in Mirpur Government Housing Estate for running business–– We are of the view that since the appellants are in possession of the suit land by constructing factories and has been running business incurring huge expenses, though the appellants did not fulfill the conditions of the allotment letter, for ends justice, we are inclined to maintain the allotment of the appellants. The suit land is of such nature that the respondents will have to allot the suit land to someone else , if it is cancelled. So, ends of justice would be met, if the allotment of the suit land is maintained in favour of the appellants, because they had already made improvements of the suit land and constructed buildings as well as running business thereon. We are also of the view that further justice would be met if the appellants are asked to pay the present market price of the suit plot. In this case, the appellants have to pay the present market price of the suit land, not the price based on which the plot was allotted to them vide allotment letter dated 22.11.1980. The appellants are directed to pay a sum of Tk.75,00,000.00 (seventy five lacs) as market value in respect of the suit land of the case within 06 (six) months from the date of this judgment. In default, the appeal shall stand dismissed. ...Begum Hosneara Alam =VS= National Housing Authority, [10 LM (AD) 174] ....View Full Judgment

Alternative Remedy:–– The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes–– The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Appellate Court as the last Court of facts–– We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The impugned judgement and order of the High Court Division is not sustainable. Hence, the appeal is allowed, without however, any order as to costs. .....Fatema Khatun (Mst.) =VS= Towhida Begum (Mst.), [4 LM (AD) 113] ....View Full Judgment

Appellate Court is the final Court of fact–– The High Court Division erred in failing to appreciate that the appellate Court was the final Court of fact, and the revisional Court could only interfere if there was misreading or non-consideration of evidence or misconception of law. No such infirmities were identified in this case. .....Government of Bangladesh =VS= Md. Sadek Ali, [4 LM (AD) 141] ....View Full Judgment

The appellate court being the last court of facts, it can not be disturbed in the revisional jurisdiction–– The burden of proof lies upon him who claims the same. I have also examined that the signature appearing over the dakhila in Bangali (sic, it would be Bangla), does not tally with the admitted signature Shafiuddin over the plaint and the vokalatnama filed before the court. I do not find any English signature of Shafiuddin in the record and as such I do not find any misreading of evidence and misinterpretation of evidence on record by the Appellate Court. .....Reazuddin Mondal =VS= Md. Shafiuddin, [3 LM (AD) 436] ....View Full Judgment

Audi Alteram Partem–– (Violation of principle of natural justice¬)–– It is a fundamental principle that the person or persons sought to be affected adversely must be given not only an opportunity of hearing but a fair opportunity of hearing. Since the cancellation of recognition and stopping payment of monthly pay order, in fact, are punishment to the students, teachers and employees of the Madrasha, principle of natural justice demands that before passing the impugned order an opportunity ought to have been given to the writ petitioners to explain their position but that has not been done. In Mohinder Shingh Gill vs The Chief Election Commissioner (AIR 1978 SC 851) Krishna Iyer, has made it clear that principle of natural justice is a vital part of rule of law.

The writ respondent appellants have violated the principle of "Audi Alteram Partem". We do not find any wrong in the judgment of the High Court Division which calls for any interference by this Division. ...Government of Bangladesh =VS= Md Sohrabuddin, [6 LM (AD) 14] ....View Full Judgment

After completion of works within the time stipulated the contractor did not get entire bill amount, filed Writ petition for remained unpaid bill–– The Appellate Division held that the writ respondent- petitioners, though admitted the claim of the writ petitioner- respondent, did not pay the entire bill amount. Even after such admission, they preferred Leave Petition against the judgment and order of the High Court Division, which is also unfortunate. In view of the facts and circumstances mentioned above, the petition is dismissed by the Appellate Division. .....Bangladesh & others =VS= Panaki Chowdhury, [1 LM (AD) 414] ....View Full Judgment

The appellate Court as the last Court of fact– The disputed land in Other Class Suit No.09 of 1995 and the land in Partition Suit No.25 of 1984 are not identical and the issues of those two suits are not same although the parties are same. The appellate Court further held the view that the trial Court failed to formulate the main issues (in Other Class Suit No.09 of 1995) such as on the point of limitation and the point of possession and dispossession and also failed to decide those non-formulated issues in light of the evidence and other materials on record which indicated that the judgment and decree passed in Other Class Suit No.09 of 1995 is not at all sustainable which is liable to be set aside and the suit should be sent back on remand for holding the trial afresh. Appellate Division also feels that those issues should have been formulated by the trial Court and those should be disposed of on the basis of the fact and circumstances as well as evidence on record for the sake of effecting adjudication of Other Class Suit No.09 of 1995. The revisional Court had not reversed the aforementioned finding of the learned Judge of the appellate Court below. .....Shafiul Alam(Md.) =VS= Rajia Bari, (Civil), 2022(2) [13 LM (AD) 85] ....View Full Judgment

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal in accordance with law on the evidence on record. If so advised, the defendants may file the documents which were exhibited before the trial Court and were taken back by them. The High Court Division shall consider those documents, if filed, along with the evidence on record. But in no case the High Court Division shall send the case back to either of the Courts below. .....Abul Hossain =VS= Jiban Nessa, [3 LM (AD) 1]

Afresh Suit:–– Sent back to the High Court Division for hearing afresh–– The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, rule 13 of the Code if, in fact, summons was not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down. We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this petition is disposed of in the following terms: The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal on merit in accordance with law considering the evidence. .....Masum Billah(Md.) =VS= Md. Saidur Rahman, [3 LM (AD) 268]

Suit Afresh–– There is some formal defect in framing the suit the plaintiffs are permitted to withdraw from the suit with permissions to sue afresh–– The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Therefore, we find merit in the application and we are inclined to allow the same. The application is allowed. The plaintiffs are permitted to withdraw from the suit with permissions to sue afresh. The judgments and decrees of the Courts below as well as the impugned judgment and order are set aside. …Zahanara Begum =VS= Motiar Rahman(Md), [7 LM (AD) 107]

Allotment of an Industrial plot in Mirpur Government Housing Estate for running business–– We are of the view that since the appellants are in possession of the suit land by constructing factories and has been running business incurring huge expenses, though the appellants did not fulfill the conditions of the allotment letter, for ends justice, we are inclined to maintain the allotment of the appellants. The suit land is of such nature that the respondents will have to allot the suit land to someone else , if it is cancelled. So, ends of justice would be met, if the allotment of the suit land is maintained in favour of the appellants, because they had already made improvements of the suit land and constructed buildings as well as running business thereon. We are also of the view that further justice would be met if the appellants are asked to pay the present market price of the suit plot. In this case, the appellants have to pay the present market price of the suit land, not the price based on which the plot was allotted to them vide allotment letter dated 22.11.1980. The appellants are directed to pay a sum of Tk.75,00,000.00 (seventy five lacs) as market value in respect of the suit land of the case within 06 (six) months from the date of this judgment. In default, the appeal shall stand dismissed. ...Begum Hosneara Alam =VS= National Housing Authority, [10 LM (AD) 174]

Alternative Remedy:–– The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes–– The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Appellate Court as the last Court of facts–– We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The impugned judgement and order of the High Court Division is not sustainable. Hence, the appeal is allowed, without however, any order as to costs. .....Fatema Khatun (Mst.) =VS= Towhida Begum (Mst.), [4 LM (AD) 113]

Appellate Court is the final Court of fact–– The High Court Division erred in failing to appreciate that the appellate Court was the final Court of fact, and the revisional Court could only interfere if there was misreading or non-consideration of evidence or misconception of law. No such infirmities were identified in this case. .....Government of Bangladesh =VS= Md. Sadek Ali, [4 LM (AD) 141]

The appellate court being the last court of facts, it can not be disturbed in the revisional jurisdiction–– The burden of proof lies upon him who claims the same. I have also examined that the signature appearing over the dakhila in Bangali (sic, it would be Bangla), does not tally with the admitted signature Shafiuddin over the plaint and the vokalatnama filed before the court. I do not find any English signature of Shafiuddin in the record and as such I do not find any misreading of evidence and misinterpretation of evidence on record by the Appellate Court. .....Reazuddin Mondal =VS= Md. Shafiuddin, [3 LM (AD) 436]

The Appellate Court being last Court of fact–– The Appellate Court being last Court of fact considered the evidence on record, both oral and documentary and found that the heba deeds in question were not executed by the donor. We find nothing wrong with the Appellate Court as well as the High Court Division in relying upon exhibit-‘2’ in coming as to the genuineness of the heba deeds. When the plaintiff categorically challenged that Md. Motaleb Miah was a literate person and there was no reason on his part to execute and register the heba deeds in question by putting the L.T.I., the onus was squarely upon the defendants to prove their genuineness by examining at least the witness who took his L.T.I in the deed. .....Ash Mohammad =VS= Most Imamun Nessa, [5 LM (AD) 54]

Audi Alteram Partem–– (Violation of principle of natural justice¬)–– It is a fundamental principle that the person or persons sought to be affected adversely must be given not only an opportunity of hearing but a fair opportunity of hearing. Since the cancellation of recognition and stopping payment of monthly pay order, in fact, are punishment to the students, teachers and employees of the Madrasha, principle of natural justice demands that before passing the impugned order an opportunity ought to have been given to the writ petitioners to explain their position but that has not been done. In Mohinder Shingh Gill vs The Chief Election Commissioner (AIR 1978 SC 851) Krishna Iyer, has made it clear that principle of natural justice is a vital part of rule of law. The writ respondent appellants have violated the principle of "Audi Alteram Partem". We do not find any wrong in the judgment of the High Court Division which calls for any interference by this Division. ...Government of Bangladesh =VS= Md Sohrabuddin, [6 LM (AD) 14]

Bill:–– After completion of works within the time stipulated the contractor did not get entire bill amount, filed Writ petition for remained unpaid bill–– The Appellate Division held that the writ respondent- petitioners, though admitted the claim of the writ petitioner- respondent, did not pay the entire bill amount. Even after such admission, they preferred Leave Petition against the judgment and order of the High Court Division, which is also unfortunate. In view of the facts and circumstances mentioned above, the petition is dismissed by the Appellate Division. .....Bangladesh & others =VS= Panaki Chowdhury, [1 LM (AD) 414]

Code of Conduct:–– An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges–– The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Code of Conduct:–– A Judge’s official and personal conduct be free from impropriety–– A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Code of Conduct:–– No member of his family, who is a member of the Bar, shall be permitted to use the residence the Judge–– No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Complete Justice¬:–– An alienation by a Hindu widow with justifying necessity is valid transfer–– The contents of the kabala deed dated 28.10.1944 executed by Shushila in favour of Jagobandhu and ‘angikarnama’ dated 28.10.1944 executed by Jagobandhu in favour of Shushila it would be apparent that Shushila transferred the suit land to Jagobandhu for her maintenance. Accordingly, S.A. Record of right was prepared in the name of Jogabondhu. An alienation by a Hindu widow with justifying necessity is valid transfer. In the “Angikarnama” Jagobondhu made promise stating, Ò.....`wjj MÖwnZv‡K RxweZ _vKv ch©šÍ Avwg †LvivK, †cvlvK, jvjb I fiY‡cvlY Kwie| hw` bv Kwi Z‡e gvwmK †gvmev gs 15 UvKv wnmv‡e w`e|Ó The plaintiff himself as P.W.1 admitted in his evidence that, Ò Avgvi wcZvi m‡½ 9 bs weev`xwbi GB g‡g© wjwLZ `wjjc‡Î 28/10/44Bs Pzw³ nq †h, Avgvi wcZv 9bs weev`x‡K †Lvi‡cvl I gv‡mv nviv eve` cÖwZ gv‡m 15/- UvKv w`‡e|Ó It is true that the recitals in the deed regarding the legal necessity do not by themselves prove the legal necessity but the weight to be attached to such recitals. When the transaction took place many years ago, so that the original parties and the witnesses are not available to prove the circumstances in which alienation was made the alienation would be justified by legal necessity, particularly, when parties to the deed so recited. In view of such circumstances, it appears to us that Shushila transferred .90 acre of land to Jogobondhu on 28.10.1944 for her legal necessity. .....Paresh Chandra Shil =VS= Kali Bala Shil, [4 LM (AD) 295]

Corum non judice:–– If an order is said to be without jurisdiction the appropriate course open to the applicant is to plead to the Tribunal–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Coram non Judice–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Coram non Judice is a Latin phrase which means ‘not in the presence of a judge’. It is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide a case in question, or without proper jurisdiction. Appellate Division find no cogent ground why the Tribunal cannot deal with these issues for the reasons assigned above. Mere superficial pleadings on the point of fundamental rights will not confer any power on the High Court Division in respect of the terms and conditions of service. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Death certificate issued by Thana Statistical Officer–– The High Court Division, reversed this judgment and decree of the appellate court below basing mainly on the alleged death certificate, the exhibit-2. The High Court Division committed serious wrong and illegality in accepting this death certificate, the exhibit-2 and in decreeing the suit mainly relying on this exhibit-2. We don’t understand how the High Court Division could rely on this exhibit-2, the so-called death certificate issued by Thana Statistical Officer who had no authority to issue such death certificate and who could not tell even before court on what basis he issued this death certificate-the exhibit-2. The impugned judgment of the High Court Division cannot be sustained. .....Mohosin(Md) =VS= Mst. Angura Khatun, [5 LM (AD) 100]

Decree:–– The executing court cannot go beyond the decree–– The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos.2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case. .....Sheikh Sekander Ali & others =VS= Agrani Bank Limited & others, [1 LM (AD) 135]

Discretion–– Discretion, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reasons. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within limit, to which an honest man competent to the discharge of his office ought to confine himself. .....Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, [1 LM (AD) 63]

Dispose of the complaint within six months–– The original complaint was filed in the year 2013, we direct the Board to dispose of the complaint within six months from today. We also grant liberty to the complainant, if so required, to make an application before the Board for an appropriate interim order after completion of the pleadings and in which case, the Board may dispose of the application within three months. .....Gail (India) Ltd =VS= Petroleum and Natural Gas Regulatory Board, [1 LM (SC) 625]

Doctrine of legitimate expectation implement of contract–– The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner’s expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute. .....Government of Bangladesh =VS= Refat Garments Limited, [5 LM (AD) 173]

Donation–– We direct the M.H. Samarita Medical College, 117 Tejgaon, Love Road, Dhaka to pay Tk.75,00,000/- to the Children Heart Foundation & Research, Dhaka having office at center point concord, space: 5/B, 14/A & 31/A Tejkunipara Tejgaon, Dhaka and Tk.25,00,000/- to the National Liver Foundation of Bangladesh totaling Tk.1,00,00,000/- within 7(seven) days from the date of receipt of the order and submit the receipts of donation before the Registrar General, Supreme Court of Bangladesh, Dhaka. Pursuant to deposit of donation for charitable purposes, the Dhaka University shall accord registration and issue registration cards to the writ petitioners in Writ Petition Nos.13572 of 2016 and 13272 of 2016 in the first year BDS and MBBS examinations respectively. In case to failure to make the donation, M.H. Samarita Medical College and Dental unit shall be debarred from admitting students for the academic sessions 2017-2018. The rules issued by the High Court Division are discharged. These petitions are accordingly disposed of. .....Registrar, University of Dhaka =VS= Tanjina Akter, [3 LM (AD) 438]

Exemption of customs duty and sale tax On-Highway Truck/Off-Highway dump truck–– Plant mentioned in SRO 484(I)/92 dated 14.05.1992 bringing the Off- Highway dump trucks within its ambit. On-Highway truck is meant for long hauls, it also has a bunk in its cabin for its use as driver’s sleeping area. In contrast to such utility, the Off-Highway dump truck, as decided by us in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited is specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings are carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant. Respondent companies were not entitled to claim exemption under SRO 575(I)/2006 dated 5.6.2006 and SRO 530(I)/2005 dated 6.6.2005 on Volvo FM 400 trucks that were imported by them as the same were found to be On-Highway trucks and not Off-Highway dump trucks. The customs authorities shall recover the customs duties and Sales Tax on all eighteen Volvo FM 400 trucks imported. .....Collector of Customs =VS= M/s Best Way Cement, [1 LM (SC) 639]

Findings:–– High Court Division was not empowered or authorized to set aside those findings without any specific finding–– The High Court Division was not empowered or authorized to set aside those findings without any specific finding that the Court of appeal either misread or failed to consider in interfering any material evidence and thus erred in law with the judgment and decree of the Appellate Court. We ourselves have gone through the evidence any material we have not found any misreading or non-consideration of evidence by the Court of appeal. The judgment and order passed by the High Court Division in Civil Revision No. 2148 of 1999 is hereby set aside and those of the Appellate Court dismissing the suit is restored. .....Abdus Sobhan =VS= Md. Afzal Mia, [4 LM (AD) 12]

Fraud document create–– The judgment and order of the appellate Court that it was observed that the contesting defendants claimed that the plaintiffs had created the document Exhibit-4 by fraud, but did not particularise the elements of fraud. The appellate Court deduced from the evidence of D.W. 1 that Moijan must have died around the year 1963 and, therefore, had the right to transfer her share of .42 acre, which she did in the kabala dated 10.6.1958. The appellate Court held therefore, that the share of Moijan did not pass on to defendant No. 1 after her demine (demise) as she had already transferred her share to the plaintiffs by the kabala (Exhibit-4), and, therefore, defendant No. 1 did not have the right to transfer the said .42 acre of land to defendant Nos. 5-9 by virtue of register heba deeds dated 13.11.1968 and 19.06.1983. .....Shamar Uddin Mollah & others =VS= Ahammad Ali Mollah & others, [1 LM (AD) 326]

Fraud practiced upon Court–– The Appellate Division held that since the judgments were obtained by practicing fraud upon the court, Appellate Division has no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. Appellate Division direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s) for using forged documents for securing judgments from the Company Court. .....Bangladesh Bank =VS= Eagleway Investment Ltd & others, [1 LM (AD) 337]

Fraud vitiates all judicial proceeding–– There is no existence of Title Suit No.587 of 1970, so the judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971 is also non-existent in the eye of law. The question of binding effect of the judgment and decree of Title Suit No.587 of 1970 dated 15.03.1971 upon the appellants is completely fictitious. The appellants are not under any legal obligations to release the property from the list of vested property in favour of the respondents. The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971, which has no existence at all. So, we are constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No.6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No.6053 of 2008 on 17.12.2009 is set aside. The appeal is allowed. ...Ministry of Land, Bangladesh =VS= Sadeque Ahmed Nipu, [10 LM (AD) 692]

Fraud:–– Transaction between the parties were fraudulent–– As soon as the letters of credit are established between the issuing bank and negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has privity to that agreement. It is by nature a separate transaction from the sale agreement between the seller and the buyer. Any allegation of fraud has to be proved strictly by adducing evidence. View that the claim of fraud is somewhat belated and also that the petitioner has not been able to establish its claim of fraud having been practiced. Admitted that defendant Nos.2 and 3 are not the same person. The petitioner had claimed that defendant Nos.2 and 3 were one and the same person and, therefore, the transactions between them were fraudulent paper transactions. Moreover, evidently the petitioner accepted the genuineness of the instruments and encashed some of them. In view of the above discussion, we do not find any illegality or impropriety in the impugned order. .....Oriental Bank Ltd. =VS= Export Import Bank of Bangladesh Ltd., [4 LM (AD) 291]

Fraud/ Auction:–– Low price selling the property on auction vitiated by fraud–– The property was sold at Tk.7,30,00,000/- on 01.12.2014 despite the assessment of the valuation at Tk.40,7,90,862/- on 25.03.2014. This shows that the petitioner’s tannery was sold at a shockingly low price. Selling of property at a shockingly low price which is evident on the face of the record is a material irregularity in conducting the sale and if the court is satisfied that the price was shockingly inadequate, it may interfere with the sale. The sale of the property hurriedly ignoring the valuation assessed by an engineer and the conduct of the receiver proved beyond doubt that the sale was vitiated by fraud. There was deliberate collusion between the receiver, the auction purchaser and the officials of the court in conducting the sale at a shockingly low price. Therefore, we are not persuaded to maintain the sale. We direct the petitioner Jamila Tannery Limited to deposit Tk.7,30,00,000/- plus TK.75,00,000/- as compensation for payment to the auction purchaser and Tk.25,00,000/- to the bank as cost of the litigation plus receiver’s remuneration by 26.10.1917 with the Bankruptcy Court, failing which, the auction sale shall stand. The pay order/bank draft deposited by the petitioner be released forthwith subject to payment of money as mentioned above. This petition is disposed of with the above observations and directions. .....Jamila Tannery Limited =VS= Bangladesh, [4 LM (AD) 264]

Full relief to the judgment-debtor without issuing any rule–– The High Court Division has given the full relief to the judgment-debtor without issuing any rule and also without affording the decree-holder and the auction purchaser an opportunity to controvert their claims. It has been repeatedly held by this Division that granting. In the latter case this Division reaffirmed the views taken by the Supreme Court of Pakistan and observed that "without issuing any rule while disposing of the application under Article 102 of the Constitution the High Court Division was not authorized in law to pass any ad-interim relief which it could only be passed in aid of or ancillary to the main relief that may be granted upon final determination of the rights of parties in order to maintain status quo ante in the pending suit proceeding before it.” ...Farid Uddin Mahmud =VS= Md. Saidur Rahman, [9 LM (AD) 247]

General Average Bond and General Average Guarantee–– We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security. We are of the view that ends of justice would be sufficiently met if the plaintiff, respondent No. 1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 180,000.00 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26.02.2018). On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court. .....Bene Maritime Inc =VS= Aman Feed Limited, [4 LM (AD) 93]

Gift/ Heba:–– Declaration suit gift–– Careful scrutiny of all the materials on record, we do not find any earthly reason why the plaintiff would gift a six-storey building, which appears to be their family home, to one of her children while depriving all her other children. In the light of the facts and circumstances discussed above, we find that the impugned judgement suffers from misreading as well as non-consideration of relevant evidence and materials, which in our view calls for interference. For the reasons stated above the appeal is allowed, without, any order as to costs. The impugned judgement and order of the High Court Division is set aside and the judgement and decree of the trial Court is restored. ...Mosammat Kamran Nessa =VS= Haji Hafez Md. Sharif Uddin, [6 LM (AD) 17]

Inherent power:–– Despite the absence of any provision empowering the Tribunal to pass any interim order–– Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Judgment:–– A Judge should dispose of promptly In no case a judgment shall be signed not later than six months–– A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed not later than six months of the date of delivery of judgment in exceptional cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

Lease deed–– The Management/ Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures–– We are of the view that the lease deeds, Annexure-‘A’ series are short term leases incorporating specific terms and conditions, breach of which would result in the land reverting to the Government. The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. The agreements entered into between respondent Nos.15 and 17 and respondent No.16 as well as the power of attorney are, therefore, illegal and void ab initio and of no legal effect. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. The Civil Petition for Leave to Appeal No.133 of 2017 is dismissed. Consequently, the Civil Petition for Leave to Appeal Nos.530 of 2017 and 633 of 2017 are also accordingly dismissed. ...Mir Showkat Ali =VS= Morsalin Khan(Md.), [6 LM (AD) 245]

Lease cancelled on the allegation of failure to make any construction in the disputed plot–– We have already held that the People’s Jute Mills Ltd. has accepted the judgment and order of the Writ Petition No.137 of 1996, it has been decided that disputed property is abandoned property. It is also admitted that the original allottee People’s Jute Mills Ltd. did not make any construction in the disputed land before its dispossession inasmuch as lease was cancelled after 24 years of allotment. The People’s Jute Mills Ltd. has not yet prayed any relief against subsequent lease deeds executed in favour of added respondents and also it did not make any prayer for recovery of possession of the disputed land though admittedly it was dispossessed in 1992. The appeal is dismissed. …Khalishpur Jute Mills Ltd. =VS= Rajdhani Unnayan Kartipakkha, [7 LM (AD) 123]

Lease:–– Permission for chopping down 2096 standing trees in Jhemai Tea Estate–– The agreement of lease between the Government and the writ petitioner provides for extension of tea garden on the lease hold land may be permitted to cut down the trees subject to certain terms and conditions–– The agreement of lease between the Government and the writ petitioner provides a clause for extension/ expansion of tea garden on the lease hold land. Moreover, tea is one of our exportable item earning foreign currency as well as fulfilling the local demand of tea, which is increasing day by day. Moreover, tea gardens with shed trees are also greeneries and such gardens are also causing emission of oxygen in the atmosphere and absorbing CO2 . Tea gardens also take active part in the photosynthesis process. Therefore, for the purpose of sustainable development as well as to protect the environment, Writ Respondent No.7 may be permitted to cut down the trees for which permission has been given to it by the concerned authorities subject to certain terms and conditions as mentioned hereinafter: (1) Immature trees cannot be cut down. (2) Before cutting down each trees, two saplings are to be planted in suitable places of Jhemai Punjee area. (3) After nourishing newly planted saplings for at least three years, the leave respondent No.7 would be entitled to chop down old and matured trees only from Jhemai Punjee under the supervision of the Local Officials of the Department of Environment and the Department of Forest. …Rana Surong =VS= Government of Bangladesh, [7 LM (AD) 139]

Mala fides:–– What is mala fides?–– “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962). An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

M.P.O./ MPO/ Monthly Pay Order: M.P.O.–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right unless infringement of legal right or violation of law–– 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. We are of the considered view that the instant writ petition is not maintainable. We find merit in the petition, however, we are not inclined to grant leave, rather, dispose of the instant Civil Petition for Leave to Appeal as the writ petition was not maintainable. …Government of Bangladesh =VS= Md. Nazrul Islam, [7 LM (AD) 208]

M.P.O–– Striking out the name of the writ-petitioner from the list of Monthly Payment Order (M.P.O.)–– Before delisting the name of respondent No.1 from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated. Therefore, the High Court Division rightly declared the action illegal. This civil appeal is dismissed without any order as to costs. ...Ministry of Education, BD =VS= Mrs. Kanij Salma, Lecturer, [10 LM (AD) 199]

M.P.O–– Monthly Pay Order (MPO) (government portion of the salary–– The High Court Division directed the leave-petitioners to settle the index number of the writ-petitioner’s Monthly Pay Order (MPO)and to pay the writ-petitioner’s earlier MPO with effect from 14.10.2004 within 3 (three) months from the date of receipt of a copy of the judgment and order of the High Court Division. 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. Accordingly, this civil petition is dismissed. .....Ministry of Education =VS= Md. Zahurul Haque, [3 LM (AD) 272]

Nationalization of school it is the policy decision of the Government–– The Constitution does not permit the High Court Division to direct or advise the executive in the matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the executive provided the authorities do not transgress their constitutional limit or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizen or is opposed to the provisions of the Constitution. It can not interfere the correctness of the reason which prompted the Government to nationalize Raypur Merchants Academy instead of Raypur L.M. Pilot Model High School. It is not a matter of concern of judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after consideration of all the points from different angles. In assessing the propriety of a decision of the Government the High Court Division cannot interfere even if a second view is possible from that of the Government. The Court has to consider whether a decision making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its power. We do not find any error in the impugned administrative decision for which it can be said that the executive authority exceeded its’ power or committed an error of law or violated the principles of natural justice and, thus, the judgment of the High Court Division does not call for any interference. ...Raypur L.M. Pilot Model High School =VS= Ministry of Education, [6 LM (AD) 269]

Natural Justice¬:–– Disciplinary enquiry-Natural justice-Non application of mind–– The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. .....Allahabad Bank =VS= Krishna Narayan Tewari, [3 LM (SC) 1]

Natural Justice¬:–– When a petition/memo is filed in the wrong jurisdiction or forum–– It is common practice to allow a party to file a petition/memo in the proper form when it is observed that the said memo/petition was filed in the incorrect form. In other words where instead of filing an appeal a revision was filed, direction would be given to either convert the revision into an appeal or to file the appeal afresh. In such circumstances, usually the time consumed in proceeding under the wrong jurisdiction or forum is directed to be deducted. Equally when a memo/appeal is filed instead of petition for revision the Court may direct that the appeal be treated as revision. …Kutub Uddin =VS= Syed Moinuddin Ahmed, [7 LM (AD) 31]

Natural Justice¬:–– When judicial review is permissible–– It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231]

New Rule effective and applicable–– The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same. .....Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, [1 LM (AD) 56]

Observation–– Judicial domain requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms. Observation should not be made by the Court against any person unless it is essential for decision of the case. ...Hosneara Begum, Adv. =VS= A.K.M. Bahauddin alias Bahar, [9 LM (AD) 669]

Observation is expunged–– Review–– While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code of Criminal Procedure. This observation is made through overlooking sub-section (1B) of section 6 of the Criminal Law Amendment Act, 1958. The above observation is expunged. These petitions are disposed of with the above expunction and observations. .....Manzur Ahmed =VS= Government of Bangladesh, [5 LM (AD) 205]

Observation of the Court–– A Court has right to make observation(s) in dealing with a matter, but it cannot make any observation(s) about the behavior or action of the writ respondent(s) in future, particularly, about the possible disobedience or violation of the order/direction/ observation of the Court, the reason being that when a Court passes an order or gives a direction or makes an observation it is presumed that such order/direction/ observation shall be obeyed and complied with in its true purport and spirit. And if the Court itself nourishes an element of doubt in its mind as to the obedience or the compliance with its order/ direction/observation, then there cannot have any meaning in passing such order/ giving such direction/making such observation. And such kind of doubt by a court shall make the people's confidence in the administration of justice shaky. We would like to add further that a Court must always pass an order/give direction/and make observation in a positive way to ensure fair justice and not in a manner as quoted hereinbefore. .....Land Reform Board =VS= Md Hamdu Miah, [5 LM (AD) 117]

Overrule the Appellate Division–– An overruled point of law cannot be ignored by this court and when a proposition of law has been settled, which is binding on all courts and though it is not binding on this court, it can overrule the said decision. A decision of a court overlooking a decision, or if it is contrary to law, constitutes an error apparent on the face of the record justifying its review. It is immaterial whether such error occurred by reason of lawyer’s mistake or oversight on the part of the court. The appeal is allowed without any order as to cost and the leave petitions are disposed of. The judgment in the appeal shall govern the leave petitions. .....Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, [4 LM (AD) 66]

Owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots–– The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots and till such date the shop keepers shall remain in possession of the shops. The construction must be completed within three years from the date of taking possession and in case of failure to handover possession within the above time, the landlords shall pay compensation to the tenants. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, [3 LM (AD) 46]

Pleading of the plaintiff is not evidence–– As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, [4 LM (AD) 138]

Possession:–– No break in respect of the possession of the petitioner–– There was no break in respect of the possession of the petitioner in the case land, made the Rule absolute declaring that the impugned order of eviction was issued without lawful authority and is of no legal effect. Moreso, since the Government having granted lease to the petitioner at a subsequent stage, and the lease never having been cancelled by the Government, the petitioner acquired valid and lawful right in respect of the land in question and this right, interest and possession of the lease hold property cannot be disturbed at the instance of a stranger. .....Nurul Amin(Md.) =VS= Dullah Miah, [3 LM (AD) 428]

Purchase deed:–– Appellate Division view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified. .....Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, [1 LM (AD) 385]

Recovery of possession:–– Possession of the suit land so the plaintiff having not made any prayer for recovery of possession of the suit land–– All the three courts below committed wrong and illegality in dismissing the suit of the plaintiff holding to the effect that the plaintiff’s suit is not maintainable without prayer for setting aside the judgment and decree passed in title Suit No.107 of 1968 and without prayer for recovery of khas possession. The plaintiff acquired valid right, title and interest in the suit land by virtue of purchase by a registered kabala of the year 1963, the exhibit-7 and he has also proved his possession in the suit land. In the circumstances the plaintiff is entitled to get the decree as prayed for. .....Masud Alam =VS= Abdul Khaleque Miah, [3 LM (AD) 261]

Recovery of possession:–– Recovery of khas possession of the suit land–– We find from the cross-examination that he was not present at the time of the settlement with the family members. His wife was present. She was not called to give evidence. In his cross-examination DW2 (defendant No.2) admitted that the plaintiff got land in all the plots at the time of amicable settlement which took place after his father's death in 1995. Hence the judgement of the appellate Court was palpably wrong and the High Court Division correctly reversed the same upon giving cogent reasons. Since there was admittedly amicable settlement within the family there is no question of filing a further suit for partition. In the light of the facts and circumstances discussed, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. The appeal is dismissed. ...Harmuj Sarker =VS= Mohammad Anis, [6 LM (AD) 114]

Recovery of possession:–– Suit was not maintainable without the prayer for recovery of possession–– It would not be proper to remand the case after 30 years of it’s institution allowing the plaintiff to prove the deed produced by the defendants forged. We have already held that the plaintiffs have admitted the possession of the defendants in the suit land and that the instant suit was not maintainable without the prayer for recovery of possession, we are of the view that the prayer for remand of Mr. Samader does not deserve any consideration. We do not find any merits in the appeal. .....Parmalundra Joydhar =VS= Bhagirath Talukder, [5 LM (AD) 95]

Recovery of excess payment–– In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. .....High Court of Punjab & Haryana =VS= Jagdev Singh, [1 LM (SC) 623]

Review–– We have given our anxious consideration to the facts and circumstances of the case and we are of the view that the ends of justice would be best served if the appeal filed by the Government before the High Court Division is heard on merit. The order dated 12.06.2016 is set aside after reviewing the same. The judgment and order dated 21.04.2013 passed by the High Court Division is set aside and the delay of 643 days in preferring the appeal before the High Court Division is condoned. The High Court Division is directed to register F. A. T. No.571 of 2012 as First Appeal and to dispose of the same in accordance with law. ...Government of Bangladesh =VS= Samsuddin Monir Khan, [6 LM (AD) 141]

Review–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional or shockingly arbitrary in the wednesbury sense. It is the duty of the policy maker to decide how a village would be protected from erosion of a river and what would be the acceptable proposal for embankment works and what would be the proper way of implementation of proposal of embankment considering the financial capacity of the Government. The instant case, in fact, the High Court Division, ignoring constitutional limitation directed the executive to sanction money instead of wheat for protection of the above mentioned villages from erosion of the river Megna. Our considered view is that the impugned judgment and order passed by the High Court Division was unlawful. The review petition is disposed of. …Ministry of Finance, Bangladesh =VS= Salim Khan (Md.), [7 LM (AD) 236]

Revisional jurisdiction:–– High Court Division exercising revisional jurisdiction is very limited–– Where the trial Court and the appellate Court come to a decision which is not conflicting, and the finding is concurrent, the function of the High Court Division exercising revisional jurisdiction is very limited. It can only look to see whether there was any misreading or non-consideration of evidence on record or any misconstruction of law. We find that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. We are, therefore, of the view that the trial Court and the appellate Court rightly dismissed the suit for declaration of title. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. .....Jahangir (Md.) =VS= Noor Mohammad, [5 LM (AD) 142]

Right of appeal:–– Third party right to file an appeal–– Even a third party can file an appeal in case he is affected by a decree passed in a suit. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 168]

Solatium to the defendant–– We are inclined to give a solatium to the defendants, the heirs of Anu Mia. Considering all aspects we fix the solatium at Tk.1,60,000/- (one lac sixty thousand) to be paid by the plaintiffs to the defendants, the heirs of Anu Mia. .....A. K. M. Abdul Ali =VS= Rafiqul Islam, [3 LM (AD) 37]

Statutory deposit:–– Statutory deposit along with an additional 8% as interest was not made. The High Court Division rejected the contention and discharged the Rule. It appears to us that the point raised by the pre-emptees also requires determination of facts. Since the hearing of the case has already commenced, the point raised by the pre-emptees can very well be agitated before the trial Court along with the other issues. And if such a point is agitated, whatever observations and findings have been given in the impugned judgment and order by the High Court Division on the said point shall not be binding upon the trial Court in deciding the same afresh. The trial Court shall dispose of the same along with the other issues in accordance with law. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, [1 LM (AD) 274]

Summons:–– Service of Summons–– The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 243]

Suo Motu Rule–– To pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim–– Over the said incident a case has already been instituted and the police of Paltan Police Station has taken investigation. Since an investigation is pending over the said incident, the High Court Division acted illegally in directing to lodge the F.I.R against specified officials of the Dhaka City Corporation south, Dhaka. If the investigating agency finds prima facie case then it may submit police report against the persons who have shown negligence in keeping open the manhole. The observations and direction so far it relates to lodging the F.I.R and taking legal action by the High Court Division are hereby expunged. We direct the City Corporation South, Dhaka and Dhaka WASA to pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim Sano Mia equally within 6(six) weeks from the date of receipt of the order. .....Rustom Ali(Md.) =VS= The State, [5 LM (AD) 158]

Unconditional apology–– We are not inclined to uphold the order of cancellation of the allotment of land made in favour of the University or dislodge the university from Plot No.4 to an alternative site. However, considering the gravity of the situation and this being a matter of great public importance concerning the right of the people in general and the Musallies from home and abroad who are meeting in the huge congregation of Bishaw Istema twice in every year for the last 40 years to perform their prayer in the Bishaw Istema Math and therefore, invoking the power of complete justice this Division is of the opinion that in the interest of justice a 40 feet wide Approach Road (passage) should be kept open for the people in general and the Musallies of the Bishaw Istema of the Tabligue Jamat in particular. Accordingly, the respondent Nos. 1 to 3 be directed to demolish the wall and other structures which had been constructed on the land of the original 100 feet wide Approach Road (passage) for keeping open a 40 feet wide Approach Road for the use of the people in general and the Musallies of Bishaw Istema of the Tabligue Jamat which has been in use for more than 40 years. The unconditional apology tendered by the respondent Nos.1 and 2 are accepted and they are warned to be cautious in future while dealing with such order of this Court. .....RAJUK =VS= International University of Business, Agriculture and Technology, [4 LM (AD) 303]

Will/ Probate–– The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Ramesh Chandra Das =VS= Gopal Chandra Majumder, [4 LM (AD) 321] ....View Full Judgment

The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference. …Janata Bank Vs. Md. Minhaj Uddin Ahmed and another, (Civil), 1 SCOB [2015] AD 26 ....View Full Judgment

The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15

Whenever an award is challenged before any Court, the Court, i.e. either District Court or as in this case the High Court Division, does not sit on appeal over the decision of the learned Arbitrator. Therefore, the scope of considering the merits of the case and factual aspects is again very limited. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15

The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments. …TATA Power Company Ltd Vs M/S Dynamic Const., (Civil), 2 SCOB [2015] AD 15 ....View Full Judgment

Advocates should not expect detailed Judgment on the side-issue of a suit/matter, which is already well-settled by the Apex Court
While an Advocate would be seen by this Court to be fully justified in receiving a detailed Judgment on finishing hearing of a suit or any other original substantive matter (such as Admiralty Suit, Writ Petition, Company Matter) even if the Court expresses its views dismissing the suit/discharging the Rule, however, as an officer of the Court, an Advocate is expected to assist this Court in saving its time by non-prosecuting an interlocutory application, when the same would be found by the Court without any substance after affording the opportunity of placing the arguments at length. It is to be borne in mind by the learned Advocates that since the number of Judges of this country are very negligible in comparison to the case-load, it has become very difficult for the learned Judges of this country to dispose of the substantive suit/matters and, therefore, the learned Advocates should not expect detailed Judgment on the side-issue of a suit/matter, which is already well-settled by the Apex Court of our jurisdiction. ...Chattogram Dry Dock Ltd Vs. M.T. Fadl-E-Rabbi & ors, (Civil), 17 SCOB [2023] HCD 82 ....View Full Judgment

Advocates should not expect detailed Judgment on the side-issue of a suit/matter, which is already well-settled by the Apex Court
While an Advocate would be seen by this Court to be fully justified in receiving a detailed Judgment on finishing hearing of a suit or any other original substantive matter (such as Admiralty Suit, Writ Petition, Company Matter) even if the Court expresses its views dismissing the suit/discharging the Rule, however, as an officer of the Court, an Advocate is expected to assist this Court in saving its time by non-prosecuting an interlocutory application, when the same would be found by the Court without any substance after affording the opportunity of placing the arguments at length. It is to be borne in mind by the learned Advocates that since the number of Judges of this country are very negligible in comparison to the case-load, it has become very difficult for the learned Judges of this country to dispose of the substantive suit/matters and, therefore, the learned Advocates should not expect detailed Judgment on the side-issue of a suit/matter, which is already well-settled by the Apex Court of our jurisdiction. ...Chattogram Dry Dock Ltd Vs. M.T. Fadl-E-Rabbi & ors, (Civil), 17 SCOB [2023] HCD 82 ....View Full Judgment

As a whole, the judgment of the trial Court is founded on mere assumption and presumption of facts and not on proper appreciation of the evidence on record. The learned Judge of the trial Court has embarked upon the loopholes and weaknesses of the defendant’s case to establish the case of the plaintiff against the settled principle of law that the plaintiff must prove his case in order to get a decree in his favour and the weakness of the defendants case is no ground for passing a decree in favour of the plaintiff. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment

Basic Principles of Waqf:
According to Imam Abu Hanifa the meaning of waqf is the detention of a specific thing in the ownership of waqf and the devoting of its profit or products “in charity of poors or other good objects”. Imam Abu Yusuf said, “Waqf signifies the extinction of the waqif’s ownership in the thing dedicated and detention of all the thing in the implied ownership of the Almighty Allah, in such a manner that its profits may revert to or be applied ‘for the benefit of Mankind.’ Three basic principles governed the waqf: the trust was required to be irrevocable, perpetual, and inalienable. Once property was declared waqf by its owner, the trust thereby created was irrevocable. It means (i) inalienable lands used for charitable purposes and (ii) pious endowments. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12

The waqf is irrevocable after possession is handed over to the Mutawalli. The waqif divests himself of the ownership of the property and of everything in the nature of contract from the moment the waqf is created. In purely metaphorical sense the expression “ownership of God” is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the Jural sense, although the ownership of the property becomes reverted in God because God is originally owner of all thing. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12

Once the property is given to waqf, it remains for the waqf for ever. The property cannot be alienated or transferred nor is it subject to the rights of inheritance. It cannot be sold or given away to anybody except in accordance with law. …Md. Hafizuddin Vs. Mozaffor Mridha & ors., (Civil), 10 SCOB [2018] AD 12 ....View Full Judgment

সম্ভাব্যতার ভারসাম্য (Balance of Probability):
বর্তমান সময় একজন বাদীর পক্ষ এটা পুরনো খতিয়ান (যা এস. এ. খতিয়ানেরও আগের খতিয়ান) থেকে কোন বিষয় সন্দেহাতীত ভাব প্রমাণ আশা করা সমীচীন নয়। মনে রাখতে হবে এটি একটি দেওয়ানী মামলা এবং এখানে প্রমানের স্ট্যান্ডার্ড হলো সম্ভাব্যতার ভারসাম্য (Balance of Probability)_ তথা এখানে ফৌজদারী মামলার মতো সন্দেহাতীতভাবে প্রমাণ করতে হয় না ...আব্দুল লতিফ – বনাম – মোহাম্মদ কামাল উদ্দীন এবং অন্যান্য, (Civil), 15 SCOB [2021] HCD 27 ....View Full Judgment

Cancellation of lease, preservation of ecological balance and protection of natural resources; Cancellation of long term lease granted by the government for the purpose of constructing hotels in the hotel/motel zone of Cox’s Bazar:
Dismissing the review petitions, the Court directed that all leases within Jhilanja Mouza of Cox’s Bazar granted after 19.04.1999 be cancelled in the same way as those of the writ-petitioners and any constructions made thereon be demolished; the leaseholders shall be compansated for their loss due to such cancellation/demolition. It was further directed that henceforth no lease shall be granted within Jhilanja Mouza or any area which has been classified as ecologically critical area. …Mahbubul Anam Vs. Ministry of Land & ors., (Civil), 13 SCOB [2020] AD 8 ....View Full Judgment

Characteristics of work-charged employees:
Work-charged employee is the one who is engaged temporarily and his appointment is made as such, from the very beginning of his employment till the completion of the specified work. Work-charged employees constitute a distinct class and they cannot be equated with any other category or class of employees much less regular employees. Further, the work-charged employees are not entitled to the service benefits which are admissible to regular employees under the relevant rules or policy framed by the employer. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8

The service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit:
Work-charged employees have not only been deprived of their due emoluments during the period they served on less salary but have also been deprived from the pensionary benefits as if services had not been rendered by them though the Government has been benefitted by the services rendered by them. The concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The concept of equality as envisaged in the constitution is a positive concept which cannot be enforced in a negative manner. Therefore, the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit, inasmuch as, pension is not a charity, rather, it is the deferred portion of compensation for past service. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8

To ensure Socio-economic justice the Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees:
After receiving continuous service for 20 years from a work-charged employee without break, if he is left in uncertainty over his future, that is wholly denying socio-economic justice and completely contrary to Fundamental Principles of State Policy as enumerated in part II of our Constitution. 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. …Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors, (Civil), 16 SCOB [2022] AD 8 ....View Full Judgment

Commutation of death sentence: The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell since 12.07.2001, that is, more than 14 years. Considering all aspects of the case, we are of the view that the death sentence of the petitioner be commuted to imprisonment for life. …BLAST & anr Vs Bangladesh & ors, (Civil), 7 SCOB [2016] AD 42 ....View Full Judgment

The concept of Outsourcing services in Bangladesh.–– Outsourcing services is a new concept in our country. Not just labour but also professional services may be procured through outsourcing. It is a process by which the recipient of service enters into an agreement with a contractor / service provider who engages persons to render services to the service recipient. In such a situation, there is nemployment contract between the service recipient and the service renderer. The contract exists between the service recipient and the contractor and consideration for the services are provided by the service recipient to the contractor . If the service recipient is not satisfied with the service rendered by the persons engaged by the contractor then his remedy lies for breach of the terms and conditions of the agreement against the contractor. Likewise if the contractor does not receive adequate consideration for providing his service through his appointed employees, his remedy lies against the service recipient. The service recipient is generally not concerned who renders the service to him as long as the service sought is rendered adequately . As can be reasonably expected the service recipient may set certain criteria and conditions to be observed by the service renderer and he has a discretion to reject any person through whom the service is provided by the contractor; but in all such cases the matter is governed by the contract between the service recipient and contractor. It is a contract of services as opposed to a contract of employment. ...Grameenphone Ltd Vs. Chairman, First Labour Court, Dhaka & ors., (Civil), 10 SCOB [2018] HCD 7 ....View Full Judgment

This concept of “administrative fairness” requires that an Authority, while taking a decision which affects a person’s right prejudicially, must act fairly and in accordance with law. We note, albeit with utmost regret and disappointment, that in the instant case, there has been a gross violation of the well-settled principles of natural justice, and that too by the Syndicate. In our view, failure to comply with the principles of natural justice leads to arbitrariness, which in turn, vitiates the impugned order. ...Md. Shamsujjaman & ors. Vs. Bangladesh & ors., (Civil), 13 SCOB [2020] HCD 65 ....View Full Judgment

Company matter, Article 45 of the Articles of association; Interim order, Board of directors, Modify the judgement, Administration of Justice;
Invariably, under no circumstances, this court can interfere with its own judgment which was even affirmed by the Honb’le Appellate Division. ...Pankaj Roy Vs. Alliance Securities & Management Ltd. & ors., (Civil), 14 SCOB [2020] HCD 125 ....View Full Judgment

Custody of minor children:
Claiming of custody or of visitation right cannot be a matter of right and acquire by exerting force whatever the age of the minors may be. It totally depends on the welfare of the minors and that of the free wishes of the minor until and unless, the person whose custody the minor is staying loses his/her right. …M Nazim Uddin & anr Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 128 ....View Full Judgment

Code of Conduct:–– An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges–– The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Code of Conduct:–– A Judge’s official and personal conduct be free from impropriety–– A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Code of Conduct:–– No member of his family, who is a member of the Bar, shall be permitted to use the residence the Judge–– No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Complete Justice¬:–– An alienation by a Hindu widow with justifying necessity is valid transfer–– The contents of the kabala deed dated 28.10.1944 executed by Shushila in favour of Jagobandhu and ‘angikarnama’ dated 28.10.1944 executed by Jagobandhu in favour of Shushila it would be apparent that Shushila transferred the suit land to Jagobandhu for her maintenance. Accordingly, S.A. Record of right was prepared in the name of Jogabondhu. An alienation by a Hindu widow with justifying necessity is valid transfer. In the “.....দলিলগ্রহিতাকে জীবিত থাকা পর্যন্ত আমি খোরাক, পোষাক, লালন ও ভরণপোষণ করিব। যদি না করি তবে মাসিক মোসবা মং ১৫ টাকা হিসাবে দিব ।” The plaintiff himself as P.W.1 admitted in his evidence that, “ আমার পিতার সঙ্গে ৯ নং বিবাদীনির এই মর্মে লিখিত দলিলপত্রে ২৮/১০/৪৪ ইং চুক্তি হয় যে, আমার পিতা ৯নং বিবাদীকে খোরপোষ ও মাসো হারা বাবদ প্রতি মাসে ১৫/- টাকা দিবে।” It is true that the recitals in the deed regarding the legal necessity do not by themselves prove the legal necessity but the weight to be attached to such recitals. When the transaction took place many years ago, so that the original parties and the witnesses are not available to prove the circumstances in which alienation was made the alienation would be justified by legal necessity, particularly, when parties to the deed so recited. In view of such circumstances, it appears to us that Shushila transferred .90 acre of land to Jogobondhu on 28.10.1944 for her legal necessity. .....Paresh Chandra Shil =VS= Kali Bala Shil, [4 LM (AD) 295] ....View Full Judgment

Corum non judice:–– If an order is said to be without jurisdiction the appropriate course open to the applicant is to plead to the Tribunal–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Coram non Judice–– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Coram non Judice is a Latin phrase which means ‘not in the presence of a judge’. It is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide a case in question, or without proper jurisdiction. Appellate Division find no cogent ground why the Tribunal cannot deal with these issues for the reasons assigned above. Mere superficial pleadings on the point of fundamental rights will not confer any power on the High Court Division in respect of the terms and conditions of service. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Case laws which are not applicable in our jurisdiction but may have some sort of persuasive efficacy:
We can sum up in this way that the case laws declared by any superior court other than Bangladesh including Pakistan after 25th March, 1971 (that is after independence of Bangladesh) and that of India after 13th August, 1947 (that is after partition of Pakistan) are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court ... Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. ...Terab Ali & ors Vs. Syed Ullah & ors, (Civil), 17 SCOB [2023] AD 34 ....View Full Judgment

Consequence of setting aside ex-parte decree: The moment the ex-parte decree was set aside, the suit stood restored in its original position and the only legal consequence of such restoration was that the suit had to be proceeded with and disposed of in accordance with law. …Md. Noor Hossain & ors. Vs. Mahbuba Sarwar & ors., (Civil), 4 SCOB [2015] AD 4 ....View Full Judgment

Custody of Minor: Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leavepetitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit. …S.A.M.M. Mahbubuddin Vs. Laila Fatema, (Civil), 8 SCOB [2016] AD 134 ....View Full Judgment

Company matter:
Articles of Association are to be followed mandatorily if they are not in conflict with the company law:
It is settled principle of law that memorandum and articles of association being the constitution of the company regulate the affairs of the company including the powers of the board of directors and others and thus, articles are mandatory to be followed if they are not in conflict with the company law. ...Md. Mominul Islam Vs. Bangladesh & ors, (Civil), 17 SCOB [2023] HCD 108 ....View Full Judgment

Dissolution of partnership: A deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable. …Bangladesh Rubber Industries & anr. Vs. Dine Ara Begum & ors., (Civil), 10 SCOB [2018] AD 1 ....View Full Judgment

Dismissed from service, termination simpliciter; The orders of termination were not termination simpliciter. Consequently, this is the outcome of arbitrary exercise of power in a malafide way and as such, the High Court Division was justified in making the Rule absolute declaring the orders of termination to have been passed without lawful authority and to be of no legal effect. There was an inquiry about the appointment of the writ-petitioner and pursuant to the said inquiry, the writ-petitioner were terminated from service. Therefore, it cannot be said that the writ-petitioner were terminated from service and in fact, they were dismissed from service in the garb of termination. …Ashuganj Fertilizer & Chemical Com. Ltd. & ors. Vs. Md. Abu Sufian Bhuiyan & anr., (Civil), 12 SCOB [2019] AD 1 ....View Full Judgment

A depositor, when deposits his money in the bank, is entitled to expect that his banker, under any circumstances, will not dishonour his cheque when he has sufficient fund in the account or will not stop him from withdrawing money from his account or transferring the same to another account, unless the banker is directed by a competent court, or in some cases by the regulatory authority like Bangladesh Bank, to stop such payment or transaction. Even if some bills or LCs are the subject matter of any investigation by any agency, we do not find any provision in the relevant laws under which a bank can stop payment or re-imbursement on such LCs. ...Delta Spinners Ld & Ors. Vs. Bangladesh Bank and Ors., (Civil), 1 SCOB [2015] HCD 78

A bank under the law and banking practice, in particular in accordance with the relevant provisions of UCP-600, is bound to make payment or re-imbursement in respect of the accepted bills once they are accepted by the issuing banks, and in view of the said provisions of the UCP-600, namely Article-16, once such acceptance is given, the matter is closed and the concerned banks are precluded from raising any issue thereafter. ...Delta Spinners Ld & Ors. Vs. Bangladesh Bank and Ors., (Civil), 1 SCOB [2015] HCD 78

Even if the banks have in the meantime filed any criminal case against the petitioner for commission of such fraud, the payment in respect of the said bills cannot be stopped unless and until the banks obtain an order from a competent Court for stoppage of re-imbursement. ...Delta Spinners Ld & Ors. Vs. Bangladesh Bank and Ors., (Civil), 1 SCOB [2015] HCD 78 ....View Full Judgment

Deed of Gift:
There is nothing on record to show that Promoth Nath was a man of unsound mind or that plaintiff had any relationship with Promoth Nath whatsoever so as to take him to the Sub-Registry office and to fraudulently get the kabala executed by Promoth Nath. Defendants never raised any question on this aspect in any manner.
The above statement of the executant considered with the rent receipts showing payment of rent for the suit land by the plaintiff for the years 1981 to 1994 and the fact of silence of the two sons of Promoth Nath (defendant No.1 and 2) in not challenging plaintiff’s kabala and the fact of physical possession of the plaintiffs lead me to conclude that plaintiffs’ purchase is genuine and that their kabala dated 07.06.1980 was acted upon and that the earlier deed of gift dated 10.01.1979 purportedly made by Promoth Nath in favour of his son was a mere paper transaction so far the suit land is concerned. ...Monohar Chandra Biswas & ors Vs. Laxmi Rani Sikder & ors, (Civil), 3 SCOB [2015] HCD 59 ....View Full Judgment

Definition of Legitimate Expectation:
Legitimate Expectation has been defined as follows:
“A person may have a legitimate expectation of being treated in a certain way by administrative authority even though he has no legal right in law to receive such treatment. The expectation may arise either from a representation or promise made by the authority including an implied representation or consistent past practice.” ...Muhammad Imrul Hasan & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 18

The Government cannot act arbitrarily and capriciously while choosing persons for employment. It cannot pick and choose employees like private individuals.It is always under a duty to act fairly and without discrimination while making choices for employment. ...Muhammad Imrul Hasan & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 18 ....View Full Judgment

Declaration of Title and permanent injunction, Lawful possession;
I am also of opinion that, in a suit for permanent injunction, this Court should satisfy itself as regards the lawful nature of the plaintiffs’ possession. In a suit for permanent injunction, the issue regarding title need not be and should not be conclusively decided, because the purpose of granting the relief of permanent injunction is to prevent forceful ouster of an apparently lawful occupant of the suit property, thereby disapproving the act of taking law into the defendants own hands. Nonetheless, the court should incidentally look into the title or other lawful basis of the plaintiffs acquiring and continuing in possession, to satisfy itself that the plaintiff is not an usurper or trespasser or a land grabber and that he has come in clean hands. ...Azadul Islam & ors. Vs. Most. Asis Bewa & ors., (Civil), 12 SCOB [2019] HCD 211 ....View Full Judgment

Death certificate issued by Thana Statistical Officer–– The High Court Division, reversed this judgment and decree of the appellate court below basing mainly on the alleged death certificate, the exhibit-2. The High Court Division committed serious wrong and illegality in accepting this death certificate, the exhibit-2 and in decreeing the suit mainly relying on this exhibit-2. We don’t understand how the High Court Division could rely on this exhibit-2, the so-called death certificate issued by Thana Statistical Officer who had no authority to issue such death certificate and who could not tell even before court on what basis he issued this death certificate-the exhibit-2. The impugned judgment of the High Court Division cannot be sustained. .....Mohosin(Md) =VS= Mst. Angura Khatun, [5 LM (AD) 100] ....View Full Judgment

Decree:–– The executing court cannot go beyond the decree–– The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos.2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case. .....Sheikh Sekander Ali & others =VS= Agrani Bank Limited & others, [1 LM (AD) 135] ....View Full Judgment

Discretion–– Discretion, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reasons. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within limit, to which an honest man competent to the discharge of his office ought to confine himself. .....Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, [1 LM (AD) 63] ....View Full Judgment

Doctrine of legitimate expectation implement of contract–– The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner’s expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute. .....Government of Bangladesh =VS= Refat Garments Limited, [5 LM (AD) 173] ....View Full Judgment

Donation–– We direct the M.H. Samarita Medical College, 117 Tejgaon, Love Road, Dhaka to pay Tk.75,00,000/- to the Children Heart Foundation & Research, Dhaka having office at center point concord, space: 5/B, 14/A & 31/A Tejkunipara Tejgaon, Dhaka and Tk.25,00,000/- to the National Liver Foundation of Bangladesh totaling Tk.1,00,00,000/- within 7(seven) days from the date of receipt of the order and submit the receipts of donation before the Registrar General, Supreme Court of Bangladesh, Dhaka. Pursuant to deposit of donation for charitable purposes, the Dhaka University shall accord registration and issue registration cards to the writ petitioners in Writ Petition Nos.13572 of 2016 and 13272 of 2016 in the first year BDS and MBBS examinations respectively. In case to failure to make the donation, M.H. Samarita Medical College and Dental unit shall be debarred from admitting students for the academic sessions 2017-2018. The rules issued by the High Court Division are discharged. These petitions are accordingly disposed of. .....Registrar, University of Dhaka =VS= Tanjina Akter, [3 LM (AD) 438] ....View Full Judgment

Enforceability of provisions of international instruments in Bangladesh:
With regard to enforceability of provisions of international instruments, we may refer to the decisions in Hossain Muhammad Ershad V. Bangladesh and others, reported in 21 BLD(AD) 69, where it was held that “the court should not ignore the international obligations which the country undertakes by signing the instruments.” …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107

The court must look for the best interests of the minors: The court must look for the best interests of the minors and the petitioner in the present case being the mother of these two minor daughters left each and every effort for their best interest. It was decided in the case Abu Bakar Siddique vs SMA Bakar reported in 38 DLR(AD)106 that “welfare of the child would be best served if his custody is given to a person who is entitled to such custody.” …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107

It is the Family Court who has the jurisdiction to settle the question of custody of a minor:
Considering the aforesaid facts and circumstances we are of the view that removal of the detainees from the custody of their mother petitioner is without lawful authority and they are being held in the custody of respondent No.5 in an unlawful manner and the High Court Division passed the judgment beyond the scope of law which required to be interfered. In this case only Family Court has the jurisdiction to settle the question of custody of a minor. The Family Court will look into the cases referred by the parties and come to a finding in whose custody the welfare of the detainees will be better protected. …Eriko Nakano Vs. Bangladesh and others, (Civil), 16 SCOB [2022] AD 107 ....View Full Judgment

Ego cannot be allowed by the court of law:
In the facts and circumstances as it appears from the record, I find that the deceased Most. Hosneara Begum Laizu/Lipa Rani Roy was a Hindu lady, but she was converted to a Muslim and she died as a Muslim, presence in her father’s house at the time of committing suicide can be a reason to find that she was reconverted to a Hindu. ...Md. Zohurul Islam Vs. Sree Aokkhoy Kumar Roy & ors., (Civil), 13 SCOB [2020] HCD 73

As a Muslim or a believer in Islam she is entitle to get burial as per the Islamic rituals. ...Md. Zohurul Islam Vs. Sree Aokkhoy Kumar Roy & ors., (Civil), 13 SCOB [2020] HCD 73

The prayer of Mr. Subrata Chowdhury as mentioned above cannot be considered by this Court since the deceased herself did not donate her dead body to any institution. ...Md. Zohurul Islam Vs. Sree Aokkhoy Kumar Roy & ors., (Civil), 13 SCOB [2020] HCD 73

Apparently, the father of the deceased has been suffering from some ego and for his such ego Mr. Subrata Chowdhury, as well as Mr. Md. Mominul Islam made such prayers finding themselves helpless to establish that the deceased was reconverted to a Hindu. Such ego cannot be a reason for the Court to decide any dispute like the instant one. ...Md. Zohurul Islam Vs. Sree Aokkhoy Kumar Roy & ors., (Civil), 13 SCOB [2020] HCD 73

For such ego a dead body has been rottening in mortuary since last four years. Keeping dead body of a human being for such long time cannot be allowed by any religion, rather it amounts to an inhuman act. Apparently the father just for his ego behaved like an inhuman being, and such sort of ego cannot be allowed in the society or by the court of law. ...Md. Zohurul Islam Vs. Sree Aokkhoy Kumar Roy & ors., (Civil), 13 SCOB [2020] HCD 73 ....View Full Judgment

Existence of consensus ad idem between the parties is necessary to form contractual obligation:
It is the settled principle of the law of contract in all jurisdictions of the world that in order to treat a document or any correspondence between the parties to be a contract/agreement, the Courts must be satisfied as to the existence of consensus ad idem between the parties on the important term/s of the contract, such as the terms of quality, price, arbitration etc, not only from the mere wordings of the document or correspondence but also from the facts on record. ...Agrocorp Int. Pte Ltd Vs. Vietnam Northern Food Corp., (Civil), 18 SCOB [2023] HCD 213 ....View Full Judgment

Essence of the rule of law:
What emerges from the above discussion is that no one is above law and everybody is subject to law. This is the essence of the rule of law in a constitutional dispensation like ours. In this respect, we are reminded of an oft-quoted legal dictum─ ‘Be you ever so high, the law is above you’. ...Z. I. Khan Panna Vs Bangladesh & ors, (Civil), 7 SCOB [2016] HCD 7
The law-enforcing agencies can not take the law into their own hands:
Any sort of deliberate torture on the victims in the custody of the joint forces or lawenforcing agencies is ex-facie illegal, unconstitutional and condemnable. In that event, they have the right to seek the protection of the law in any independent and impartial Court or Tribunal, as the case may be. Custodial death is the worst form of violation of human rights. Even a hard-core criminal has the right to be tried in the competent Court of law for his alleged perpetration of crimes. He can not be physically annihilated or killed by the members of the joint forces for his alleged crimes. The law-enforcing agencies or the joint forces can not take the law into their own hands. ...Z. I. Khan Panna Vs Bangladesh & ors, (Civil), 7 SCOB [2016] HCD 7 ....View Full Judgment

Election matter:
Guarantor to a defaulted loan is not a disqualification:
It is now a settled principle of law that a guarantor to a defaulted loan amount is not disqualified to contest respective election. ...Mohammed Faruk ul Azam Vs. The Election Commission, (Civil), 17 SCOB [2023] HCD 1 ....View Full Judgment

From the Contract, it transpires that it has not been entered into by BPDB in exercise of statutory power and so, it cannot be said that the contract with the statutory body i. e. BPDB is a statutory contract so, as to invoke writ jurisdiction. Further we have already seen that the contract is not entered into by the Government in the capacity of sovereign. Moreover, the Contract is purely a commercial contract for purchasing electricity on rental basis. Further, the requirements as settled by the Appellate Division in the above referred case are not fulfilled. For the reasons discussed hereinbefore, we are constrained to hold that the instant writ petition is not maintainable. ...Shahjibazar Power Company Ltd. Vs. Bangladesh & ors, (Civil), 8 SCOB [2016] HCD 1 ....View Full Judgment

Findings:–– High Court Division was not empowered or authorized to set aside those findings without any specific finding–– The High Court Division was not empowered or authorized to set aside those findings without any specific finding that the Court of appeal either misread or failed to consider in interfering any material evidence and thus erred in law with the judgment and decree of the Appellate Court. We ourselves have gone through the evidence any material we have not found any misreading or non-consideration of evidence by the Court of appeal. The judgment and order passed by the High Court Division in Civil Revision No. 2148 of 1999 is hereby set aside and those of the Appellate Court dismissing the suit is restored. .....Abdus Sobhan =VS= Md. Afzal Mia, [4 LM (AD) 12] ....View Full Judgment

Fraud document create–– The judgment and order of the appellate Court that it was observed that the contesting defendants claimed that the plaintiffs had created the document Exhibit-4 by fraud, but did not particularise the elements of fraud. The appellate Court deduced from the evidence of D.W. 1 that Moijan must have died around the year 1963 and, therefore, had the right to transfer her share of .42 acre, which she did in the kabala dated 10.6.1958. The appellate Court held therefore, that the share of Moijan did not pass on to defendant No. 1 after her demine (demise) as she had already transferred her share to the plaintiffs by the kabala (Exhibit-4), and, therefore, defendant No. 1 did not have the right to transfer the said .42 acre of land to defendant Nos. 5-9 by virtue of register heba deeds dated 13.11.1968 and 19.06.1983. .....Shamar Uddin Mollah & others =VS= Ahammad Ali Mollah & others, [1 LM (AD) 326] ....View Full Judgment

Fraud practiced upon Court–– The Appellate Division held that since the judgments were obtained by practicing fraud upon the court, Appellate Division has no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. Appellate Division direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s) for using forged documents for securing judgments from the Company Court. .....Bangladesh Bank =VS= Eagleway Investment Ltd & others, [1 LM (AD) 337] ....View Full Judgment

Fraud vitiates all judicial proceeding–– There is no existence of Title Suit No.587 of 1970, so the judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971 is also non-existent in the eye of law. The question of binding effect of the judgment and decree of Title Suit No.587 of 1970 dated 15.03.1971 upon the appellants is completely fictitious. The appellants are not under any legal obligations to release the property from the list of vested property in favour of the respondents.
The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No.587 of 1970 dated 15.03.1971, which has no existence at all. So, we are constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No.6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No.6053 of 2008 on 17.12.2009 is set aside. The appeal is allowed. ...Ministry of Land, Bangladesh =VS= Sadeque Ahmed Nipu, [10 LM (AD) 692] ....View Full Judgment

Fraud:–– Transaction between the parties were fraudulent–– As soon as the letters of credit are established between the issuing bank and negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has privity to that agreement. It is by nature a separate transaction from the sale agreement between the seller and the buyer. Any allegation of fraud has to be proved strictly by adducing evidence. View that the claim of fraud is somewhat belated and also that the petitioner has not been able to establish its claim of fraud having been practiced. Admitted that defendant Nos.2 and 3 are not the same person. The petitioner had claimed that defendant Nos.2 and 3 were one and the same person and, therefore, the transactions between them were fraudulent paper transactions. Moreover, evidently the petitioner accepted the genuineness of the instruments and encashed some of them. In view of the above discussion, we do not find any illegality or impropriety in the impugned order. .....Oriental Bank Ltd. =VS= Export Import Bank of Bangladesh Ltd., [4 LM (AD) 291] ....View Full Judgment

Fraud/ Auction:–– Low price selling the property on auction vitiated by fraud–– The property was sold at Tk.7,30,00,000/- on 01.12.2014 despite the assessment of the valuation at Tk.40,7,90,862/- on 25.03.2014. This shows that the petitioner’s tannery was sold at a shockingly low price. Selling of property at a shockingly low price which is evident on the face of the record is a material irregularity in conducting the sale and if the court is satisfied that the price was shockingly inadequate, it may interfere with the sale. The sale of the property hurriedly ignoring the valuation assessed by an engineer and the conduct of the receiver proved beyond doubt that the sale was vitiated by fraud. There was deliberate collusion between the receiver, the auction purchaser and the officials of the court in conducting the sale at a shockingly low price. Therefore, we are not persuaded to maintain the sale. We direct the petitioner Jamila Tannery Limited to deposit Tk.7,30,00,000/- plus TK.75,00,000/- as compensation for payment to the auction purchaser and Tk.25,00,000/- to the bank as cost of the litigation plus receiver’s remuneration by 26.10.1917 with the Bankruptcy Court, failing which, the auction sale shall stand. The pay order/bank draft deposited by the petitioner be released forthwith subject to payment of money as mentioned above. This petition is disposed of with the above observations and directions. .....Jamila Tannery Limited =VS= Bangladesh, [4 LM (AD) 264] ....View Full Judgment

Full relief to the judgment-debtor without issuing any rule–– The High Court Division has given the full relief to the judgment-debtor without issuing any rule and also without affording the decree-holder and the auction purchaser an opportunity to controvert their claims. It has been repeatedly held by this Division that granting. In the latter case this Division reaffirmed the views taken by the Supreme Court of Pakistan and observed that "without issuing any rule while disposing of the application under Article 102 of the Constitution the High Court Division was not authorized in law to pass any ad-interim relief which it could only be passed in aid of or ancillary to the main relief that may be granted upon final determination of the rights of parties in order to maintain status quo ante in the pending suit proceeding before it.” ...Farid Uddin Mahmud =VS= Md. Saidur Rahman, [9 LM (AD) 247] ....View Full Judgment

Fraud practiced upon Court: Since the judgments were obtained by practicing fraud upon the court, we have no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. We direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s)... for using forged documents for securing judgments from the Company Court. …Bangladesh Bank Vs. Eagleway Invest. Ltd. & ors, (Civil), 2 SCOB [2015] AD 1 ....View Full Judgment

General Average Bond and General Average Guarantee–– We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security. We are of the view that ends of justice would be sufficiently met if the plaintiff, respondent No. 1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 180,000.00 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26.02.2018). On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court. .....Bene Maritime Inc =VS= Aman Feed Limited, [4 LM (AD) 93] ....View Full Judgment

Gift/ Heba:–– Declaration suit gift–– Careful scrutiny of all the materials on record, we do not find any earthly reason why the plaintiff would gift a six-storey building, which appears to be their family home, to one of her children while depriving all her other children. In the light of the facts and circumstances discussed above, we find that the impugned judgement suffers from misreading as well as non-consideration of relevant evidence and materials, which in our view calls for interference. For the reasons stated above the appeal is allowed, without, any order as to costs. The impugned judgement and order of the High Court Division is set aside and the judgement and decree of the trial Court is restored. ...Mosammat Kamran Nessa =VS= Haji Hafez Md. Sharif Uddin, [6 LM (AD) 17] ....View Full Judgment

The High Court Division has also directed to lift the curtain for enabling the writ petitioners to be considered for promotion. This cannot be done or declared by the court for, it is the police administration which shall consider as to whether or not under the prevailing laws the writ petitioners are eligible to be considered for promotion to the next higher post. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field. …Bangladesh Vs. Md. Abdus Satter and others, (Civil), 1 SCOB [2015] AD 17 ....View Full Judgment

How interest is to be calculated: The interest to be paid by the judgment debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgment debtor. …M/S. Rajib Traders Vs The Artha Rin Adalat & anr, (Civil), 5 SCOB [2015] AD 98 ....View Full Judgment

In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. ...Dhaka South City Corp. Vs. District Judge & others, (Civil), 3 SCOB [2015] HCD 150

Certiorari may be and is generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the absence of some preliminary proceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari. ...Dhaka South City Corp. Vs. District Judge & others, (Civil), 3 SCOB [2015] HCD 150 ....View Full Judgment

It does not appear that the Election Commission, after admitted declaration of schedule for holding election of Botlagari Union, has taken independent decision of its own considering the facts and circumstances of the case. Rather, it passed the impugned order at the proposal/direction of the Ministry of Local Government, Rural Development and Co-operatives. Therefore, it cannot be said that the impugned order passed by the Election Commission is lawful. ...Md. Saidur Rahman Sarker Vs Bangladesh & ors, (Civil), 6 SCOB [2016] HCD 13
Since the respondents of this case, who are directly related in this matter, have not denied the case of the writ-petitioner, we have no option but to accept the case of the writ petitioner. ...Md. Saidur Rahman Sarker Vs Bangladesh & ors, (Civil), 6 SCOB [2016] HCD 13 ....View Full Judgment

It transpires that for a Steno-Typist of the Board the post of Stenographer is a promotion post and the decision of promotion is to be made on the basis of merit through open competition in which serving Steno-Typists and outsiders may take part. It is true that the Petitioner had earlier drawn the benefits of 3 time-scales as a Steno-Typist. So, on being promoted as Stenographer he has become entitled again to get the benefits of a new-slot of time-scales subject to fulfilling essential conditions likesatisfactory service of 8, 12 or 15 years. ...Musa Kalimullah Vs Secretary, WR, MoWD & ors, (Civil), 6 SCOB [2016] HCD 124 ....View Full Judgment

If in any case the question of laws and facts are involved, in such case law point regarding maintainability should be decided first. ...Begum Khaleda Zia Vs. Anti-Corruption Commission & ors, (Civil), 8 SCOB [2016] HCD 40
Where the tribunal had no jurisdiction to try the case and passed any judgment in that case the writ petition can be maintainable. ...Begum Khaleda Zia Vs. Anti-Corruption Commission & ors, (Civil), 8 SCOB [2016] HCD 40 ....View Full Judgment

It is true that the petitioners cannot claim as of right to be regularized in their jobs. However, after having served the authority for 10-15 years as temporary contingent staffs they cannot be blamed to expect being regularized in their posts especially when their superior authority has been satisfied by their work and has recommended their regularization. ...Md. Safiqul Islam & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 1
In view of long standing period of service of the petitioners the Government consider their cases for absorption and regularization in the revenue budget if they have requisite qualifications and subject to availability of vacancies according to their seniority. They however must have the requisite qualification for the post in which they are seeking regularization, continuity in service and satisfactory service record even though they may exceed their age limit required for fresh appointment in that post. ...Md. Safiqul Islam & ors. Vs. Bangladesh & ors., (Civil), 10 SCOB [2018] HCD 1 ....View Full Judgment

If we examine the impugned letter dated 28.05.2007 coupled with the above provisions of law then we have no hesitation to hold that by issuing the same the Supreme Court authority had flouted the above provisions of law and that the opinion expressed in the letter that it would not be proper (সমীচিন ব না to take any action against respondent No.3 is nothing but an attempt to create obstacle in the process of inquiry against said respondent. ...State Vs. Registrar General & ors., (Civil), 11 SCOB [2019] HCD 61

The Supreme Court administration in issuing the impugned letter having considered some extraneous and irrelevant facts has abused its discretionary power vested in it. ...State Vs. Registrar General & ors., (Civil), 11 SCOB [2019] HCD 61

The opinion in guise of direction expressed in the impugned letter was not the upshot of any judicial determination. Such a mere administrative letter although issued as per the verbal instruction of the Hon’ble Chief Justice, patently impinges upon the rights and lawful authority of the Commission to go on with the inquiry into an allegation of corruption. ...State Vs. Registrar General & ors., (Civil), 11 SCOB [2019] HCD 61

The impugned letter is amenable to judicial review as it was issued by the office of the Appellate Division under its administrative capacity and therefore, the Rule is quiet maintainable;

The impugned letter is a mere official communication made by the office of the Appellate Division under its administrative capacity and in no way it can be regarded as the opinion of the Supreme Court;

The impugned letter though tends to give a massage that a retired judge of the Supreme Court it immune from criminal prosecution but, in fact, no one is immune as such except the Hon’ble President and that too during his term of office; ...State Vs. Registrar General & ors., (Civil), 11 SCOB [2019] HCD 61 ....View Full Judgment

If any executive action is taken, which we consider, in light of facts and circumstances, to be unreasonable we take the view that such action was beyond authority because the executives are not authorized to act unreasonably. ...Tofazzal Hossain Khandker & ors. Vs. Bangladesh & ors., (Civil), 11 SCOB [2019] HCD 71

We are inclined to hold that the amendment made through Clause 3 of the order dated 09.03.2006 was ‘whimsical’’. This cannot be permitted to remain in force. ...Tofazzal Hossain Khandker & ors. Vs. Bangladesh & ors., (Civil), 11 SCOB [2019] HCD 71

However, if there is an executive order which results in continuous wrong, as in this case, we take the view that mere delay in filing the writ petition should not affect their relief. No doubt the petitioners filed the petition after a long time but that, in the given circumstances should not defeat their entitlement because the wrong done by the executive is ‘continuous’. ...Tofazzal Hossain Khandker & ors. Vs. Bangladesh & ors., (Civil), 11 SCOB [2019] HCD 71

Executives can employ for temporary period but if they permit the period to extend, either expressly or by conduct, after certain time, the employee can legitimately expect to be absorbed. ...Tofazzal Hossain Khandker & ors. Vs. Bangladesh & ors., (Civil), 11 SCOB [2019] HCD 71 ....View Full Judgment

It is well settled that the executing court can not go beyond the decree nor can it question its legality or correctness, but there is one exception to this general Rule i.e. the executing court can adjust the amount with the decree paid by the Judgment Debtors during pendency of the execution proceeding if certified by the Decree Holder. In the present case admittedly the Judgment Debtors made payment of Tk.62,50,000/- to the Decree Holder during pendency of the Suit which has not been adjusted by the Decree Holder at the time of filing of the execution proceeding. In this situation the executing court is legally entitled to adjust the aforesaid amount with the decretal amount not the amount paid before filing of the suit. ............................................................ It must take the decree according to its tenor but in the instant case the executing court travelled beyond the decree and as such the Impugned Order passed by the executing court is not in accordance with law. ...Agrani Bank Limited Vs. Bangladesh & ors., (Civil), 11 SCOB [2019] HCD 98 ....View Full Judgment

Ingredients to prove the suit for specific performance of Contract; In a suit for Specific Performance of Contract the essential ingredients which the plaintiffs are required to prove in order to succeed in a suit for Specific Performance of Contract, are that the Bainapatra is genuine, considerations money passed by the parties and delivery of possession was given in pursuance thereof. ...Md. Rafiqul Islam & ors. Vs. Md. Abdul Hadis, (Civil), 12 SCOB [2019] HCD 121 ....View Full Judgment

It is also settled that the defendants may have thousand of defect but it does not help the plaintiff to prove their case: It appears that the plaintiff could not prove their case that they have any title in the suit land and also the possession. The main reasoning of this findings stated above that the basis of the title of the plaintiff is the settlement which was cancelled and the order ofcancellation is in existence. ...Monto Sheikh & ors. Vs. Ibrahim Miah & ors., (Civil), 12 SCOB [2019] HCD 231 ....View Full Judgment

If we now exercise our common sense it can be perceived when the Review Panel can ‘dismiss’ an Appeal if the same is not well founded either in fact or law then why it can not ‘allow’ the same if a decision appealed against is otherwise wrong ? In other words, when CPTU is competent to dismiss an Appeal it can also allow an Appeal if it is otherwise found to be competent. ...AHN. HONG, SIK. HPCC-SEL JV Vs. Central Procurement Technical Unit (CPTU) & ors., (Civil), 13 SCOB [2020] HCD 27 ....View Full Judgment

Inherent power:–– Despite the absence of any provision empowering the Tribunal to pass any interim order–– Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceeding. …Bangladesh Vs. S.M. Raiz Uddin Ahmed, (Civil), 5 SCOB [2015] AD 94 ....View Full Judgment

I have already found that Ishaque Mia was the identifier of all executants and he also took the L.T.Is of three executrix and identified their L.T.Is and he did not put any L.T.I in the deed as executant. It appears that the learned Judge of the appellate Court also misconstrued the deed in question on this point. Such misconstruction on the part of the appellate Court could not invalidate the deed and affect the merit of the case. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment

Judgment:–– A Judge should dispose of promptly In no case a judgment shall be signed not later than six months–– A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed not later than six months of the date of delivery of judgment in exceptional cases. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

Legitimate Expectation: On the basis of several decisions passed by our Apex Court, now it has been established that generally the legitimate expectation may arise-
I. if there is an express promise given by a public authority; or
II. because of the existence of a regular practice which the claimant can reasonably expect to continue;
III. Such an expectation must be reasonable.
However, if there is a change in the policy or in the public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise. ...Kamal Mia & ors Vs. Min. of Communication & ors, (Civil), 2 SCOB [2015] HCD 66 ....View Full Judgment

Letter of Credits must be respected:
The decisions referred to above consistently spelt out that when an irrecoverable Letter of Credit issued / opened and confirmed by the bank such a bank is left with no option but to respect its obligation under the letter of credit and pay if the draft and documents are found to be in order and terms and conditions of such L/C satisfied. ...Alvi Spinning Mills Ltd & ors Vs. Bangladesh & ors, (Civil), 4 SCOB [2015] HCD 23
Payment can be refused by the issuing bank only when fraud is established:
Customer cannot instruct the bank not to pay and bank cannot act upon such instruction, if any, for withholding the payment. Any dispute between buyer and seller is to be settled between them in accordance with the terms and conditions of the contract of sale. If the buyer suffers in any way, he can file suit for damages. But at the same time in all these decisions it has also been manifested that only exception to such general statement of principle i.e. recognized by a court of law is obvious and clear case of fraud brought to the knowledge of the L/C issuing bank.
However, mere allegation of fraud is not sufficient to entitle the issuing bank to withhold payments. It must be found that the draft/ documents submitted for payment must be tainted by real fraud. When that can be established only in that case payment can be refused by the issuing bank. ...Alvi Spinning Mills Ltd & ors Vs. Bangladesh & ors, (Civil), 4 SCOB [2015] HCD 23 ....View Full Judgment

Court’s power to oversee the professional performance and to regulate the Courtconduct of the learned Advocates:
Court is well empowered to oversee the professional performance and also to regulate the Court-conduct of the learned Advocates and, in an appropriate case, impose costs upon a learned Advocate for finding his conduct to be unbefitting with the norms and etiquettes of the legal profession. Accordingly, instead of referring this incident to the Bar Council towards drawing up proceedings against the learned Advocate for the petitioners, we are taking a lenient view by warning him with an expectation that this kind of incident shall never be repeated by him in future. ...Kazi Md. Salamatullah & ors Vs. Bangladesh & ors, (Civil), 4 SCOB [2015] HCD 117 ....View Full Judgment

Legitimate expectation:
In the advertisement dated 19.01.2004, the authority has given an express promise to that effect that the appointee shall be on a probation period of 1 (one) year and after satisfactory completion of the said probationary period, the appointee shall be absorbed and therefore, the petitioners’ legitimate expectation arises. The petitioners successfully made out a case of legitimate expectation. The petitioners had a legitimate expectation to be absorbed against the permanent posts on the basis of the advertisement published in the “Daily Observer” on 19.01.2004. In the background of the advertisement dated 19.01.2004, there was reasonable expectation of their being permanently absorbed in the post of Master Pilots. ...Md. Yousuf Ali Akon & ors Vs. BIWTA & ors., (Civil), 6 SCOB [2016] HCD 66
The respondents failed to show any reasons why they did not absorb the petitioners in the post of Master Pilots permanently, though, they have already rendered their service approximately 11 (eleven) years. The inaction of the respondents is found arbitrary, unreasonable, is in gross abuse of power and is in violation of the principles of natural justice. ...Md. Yousuf Ali Akon & ors Vs. BIWTA & ors., (Civil), 6 SCOB [2016] HCD 66 ....View Full Judgment

Legitimate Expectation:
The principle of legitimate expectation, as we see it, is predicated upon the following:
(a) The statement or practice giving rise to the legitimate expectation must be sufficiently clear and unambiguous, and expressed or carried out in such a way as to show that it was intended to be binding.
(b) The statement or practice must be shown to be applicable and relevant to the case in hand.
(c) Legitimate expectation is enforced in order to achieve fairness.
(d) If the statement said to be binding was given in response to any information from the citizen, it will not be binding if that information is less than frank, and if it is not indicated that a binding statement is being sought.
(e) He who seeks to enforce must be a person to whom (or a member of the class to which) the statement was made or the practice applied.
(f) Even though a case is made out, the legitimate expectation shall not be enforced if there is overriding public interest which requires otherwise. ...SJBKBSS Ltd. Vs. Sylhet City Corporation & ors., (Civil), 8 SCOB [2016] HCD 23
In any view of the matter, the members of the petitioner-samity are not at fault. Their legitimate expectation, in all fairness, should be fulfilled by the Sylhet City Corporation Authority by way of constructing the proposed market by removing the sheds from the Bus Terminal. Undeniably, the Sylhet City Corporation Authority has made a commitment to the petitioner-samity to make the proposed construction of the market at the site after removal of the sheds therefrom. ...SJBKBSS Ltd. Vs. Sylhet City Corporation & ors., (Civil), 8 SCOB [2016] HCD 23 ....View Full Judgment

Lease deed–– The Management/ Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures–– We are of the view that the lease deeds, Annexure-‘A’ series are short term leases incorporating specific terms and conditions, breach of which would result in the land reverting to the Government. The Management/Executive Committee of the Orphanage had no authority to deal with the land other than for the purpose stipulated in the indentures. Those persons at the helm of the affairs of the Orphanage could not arrogate to themselves the authority to transfer the title in the property, which they themselves did not have. The Orphanage was given the property on a short term lease, which was apparent from the lease deeds. As long as these lease deeds existed and as long as the terms were not altered by the executant of the deeds none had the authority to deal with the land other than the purpose for which the lease was granted. The agreements entered into between respondent Nos.15 and 17 and respondent No.16 as well as the power of attorney are, therefore, illegal and void ab initio and of no legal effect. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. The Civil Petition for Leave to Appeal No.133 of 2017 is dismissed. Consequently, the Civil Petition for Leave to Appeal Nos.530 of 2017 and 633 of 2017 are also accordingly dismissed. ...Mir Showkat Ali =VS= Morsalin Khan(Md.), [6 LM (AD) 245] ....View Full Judgment

Lease cancelled on the allegation of failure to make any construction in the disputed plot–– We have already held that the People’s Jute Mills Ltd. has accepted the judgment and order of the Writ Petition No.137 of 1996, it has been decided that disputed property is abandoned property. It is also admitted that the original allottee People’s Jute Mills Ltd. did not make any construction in the disputed land before its dispossession inasmuch as lease was cancelled after 24 years of allotment.
The People’s Jute Mills Ltd. has not yet prayed any relief against subsequent lease deeds executed in favour of added respondents and also it did not make any prayer for recovery of possession of the disputed land though admittedly it was dispossessed in 1992. The appeal is dismissed. …Khalishpur Jute Mills Ltd. =VS= Rajdhani Unnayan Kartipakkha, [7 LM (AD) 123] ....View Full Judgment

Lease:–– Permission for chopping down 2096 standing trees in Jhemai Tea Estate–– The agreement of lease between the Government and the writ petitioner provides for extension of tea garden on the lease hold land may be permitted to cut down the trees subject to certain terms and conditions–– The agreement of lease between the Government and the writ petitioner provides a clause for extension/ expansion of tea garden on the lease hold land. Moreover, tea is one of our exportable item earning foreign currency as well as fulfilling the local demand of tea, which is increasing day by day. Moreover, tea gardens with shed trees are also greeneries and such gardens are also causing emission of oxygen in the atmosphere and absorbing CO2 . Tea gardens also take active part in the photosynthesis process. Therefore, for the purpose of sustainable development as well as to protect the environment, Writ Respondent No.7 may be permitted to cut down the trees for which permission has been given to it by the concerned authorities subject to certain terms and
conditions as mentioned hereinafter: (1) Immature trees cannot be cut down. (2) Before cutting down each trees, two saplings are to be planted in suitable places of Jhemai Punjee area. (3) After nourishing newly planted saplings for at least three years, the leave respondent No.7 would be entitled to chop down old and matured trees only from Jhemai Punjee under the supervision of the Local Officials of the Department of Environment and the Department of Forest. …Rana Surong =VS= Government of Bangladesh, [7 LM (AD) 139] ....View Full Judgment

Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed:
The writ petitioners-respondents did not have acquired any legal right to be appointed in HPSP project and now they cannot claim to be appointed in new project i.e. Alternative Medical Care (AMC) Operational Plan (OP) as of right without participating in recruitment process. The writ petitioners-respondents participated in the examination for appointment under HPSP project in the year 2003 and having regard to the fact that the said appointment process was postponed and cancelled and on the plea of their participation in the earlier written and viva examination, no legal and vested right has been created in favour of the writ petitioners-respondents to be appointed to the posts as allegedly vacant in the new project. Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed automatically in the newly created posts in subsequent project. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

Any appointment by passing the relevant Rules of the concerned authority should be treated as back door appointment and such appointment should be stopped. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

We have no hesitation to hold that the writ petitioners-respondents have no legal and vested right to be appointed as of right in the posts as has been sought by them on the plea that they had earlier participated in the written examination and viva voice for the similar posts. The claim of the writ petitioner-respondents appears to be very fanciful having no legal basis. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

Judgment contrary to the law settled by the Appellate Division has no binding effect:
Having perused the said judgments we have no hesitation to hold that the observations/directions made in the said writ petitions are not based on sound principle of law and the law settled by this Division. Since, the judgments passed by the High Court Division in the above two writ petitions are not in accordance with law, thus those have no binding effect and persuasive value on any authority; rather said judgments are void ab initio. May be, by virtue of the above two judgments some persons have got appointment by the concerned authority but it is our considered view that this act is to be treated as passed and closed transaction. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100

It has to be borne in mind that the function or duty of a Court is not to do charity; rather it has to act in accordance with law to ensure justice. If an aspirant candidate or a participant of a particular selection process is provided job later on without participation in later selection process as decided by the concerned authority then this will create havoc in regular selection process and eligible and meritorious candidates will be deprived from getting job. …DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors, (Civil), 16 SCOB [2022] AD 100 ....View Full Judgment

Mandatory requirements to initiate a departmental proceeding:
It appears that framing charge as well as specification of penalty proposed to be imposed by the Syndicate upon the petitioner are mandatory requirements to initiate a departmental proceeding. Upon receiving the reference from the Syndicate the Enquiry Committee shall communicate the charge to the concerned accused together with the statements of allegations and request him/her to submit, within 7(seven) days from the day the charge is communicated to him/her, a written statement of his/her defense and to show cause at the same time why the penalty proposed should not be imposed on him/her and also states whether he/she desires to be heard in person or not. After framing the charge by the Syndicate the Tribunal shall take into consideration of the charges framed, the evidence on record, both oral and documentary, including the additional evidence, if any, accepted by it and recommend such action against the accused as it may deem fit. In the case in hand, admittedly no formal charge was framed which is sine quo non to start a formal departmental proceeding. ...Samia Rahman Vs. Bangladesh and others, (Civil), 17 SCOB [2023] HCD 182 ....View Full Judgment

Meaning of “A person in the service of the Republic or of any statutory public authority”:
“A person in the service of the Republic or of any statutory public authority” includes a person who is or has retired or is dismissed, removed or discharged from such service but does not include a person in the defence services of Bangladesh or of the Bangladesh Rifles. ...Md. Mijanur Rahman Vs. Bangladesh and ors, (Civil), 5 SCOB [2015] HCD 1
From the Rule and supplementary Rule issuing orders, it appears that the petitioner has not challenged the vires of any law on the ground of its fundamental right. Therefore, the petitioner’s remedy is before the Administrative Tribunal having jurisdiction and not in writ jurisdiction. ...Md. Mijanur Rahman Vs. Bangladesh and ors, (Civil), 5 SCOB [2015] HCD 1 ....View Full Judgment

A matter of law of contract can be looked into in a writ jurisdiction if Government is a party:
Basic principle of offer and acceptance:
The crux of the issue is as to whether after receiving the consideration value in the form of earnest money as has been stipulated by the respondents through their own valuation and tender can be changed. Although, this is a matter of law of contract, however, since Government is a party, so this can be looked into in a writ jurisdiction. The basic principle of offer and acceptance is – the offer is binding upon the offeror (proposer) the moment the offeree (acceptor), puts the acceptance into motion. In the instant case, the offer and acceptance both were complete since the tender was invited (offer) the petitioner participated and it was accepted by the respondent No. 2 and part consideration was also paid in the form of earnest money and in such circumstance the respondents, i.e. the offeror Government has no other option left except transferring the land in favour of the petitioner. The property in the goods in fact passes over to the buyer when the sale is complete and in the instant case the sale became binding from the moment the payments were made in compliance with the tender. ...Fatema Enterprise Vs. Bangladesh &ors, (Civil), 8 SCOB [2016] HCD 59

Principles of legitimate expectation: The above principles are directly applicable in the instant case as the respondents promise to transfer the land on payment of consideration had been overridden by the further invitation of tender or initiating a new valuation without cancelling the previous tender or returning the money of the Petitioner. ...Fatema Enterprise Vs. Bangladesh &ors, (Civil), 8 SCOB [2016] HCD 59

Grounds of judicial review:
The House of Lords rationalized the grounds of judicial review and ruled that the basis of judicial review could be highlighted under three principal head, namely– illegality, procedural impropriety and irrationality, illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading “illegality”. Procedural impropriety may be due to the failure to comply with the mandatory procedures, such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc. ...Fatema Enterprise Vs. Bangladesh &ors, (Civil), 8 SCOB [2016] HCD 59 ....View Full Judgment

In modern democratic countries citizens have a right to information in order to be able to know about the affairs of each political party which, if elected by them, seeks to formulate policies of good governance. This right to information is a basic right which the citizens of a democratic country aspire in the broader horizon of their right to live. This right has reached a new dimension and urgency, which puts better responsibility upon those political parties towards their conduct, maintenance of transparency and accountability to the public whom they aspire to represent in the parliament. ...Badiul Alam Majumdar & ors Vs. Information Commission & anr, (Civil), 8 SCOB [2016] HCD 110 ....View Full Judgment

Mala fides:–– What is mala fides?–– “Mala fides or bad faith” means dishonest intention or corrupt motive in the exercise of powers or a deliberately malicious or fraudulent purpose, on the part of the decision maker. Mala fides includes those cases where the motive force behind an action is personal animosity, spite, vengeance, personal gratification or benefit to the concerned authority or its friends or relatives. (Halsbury’s Laws of India, Vol-1, P.319 and CS Rowjee V. A.P., AIR 1964 SC 962).
An independent ground of attack, malafides (Malice in fact) should be distinguished from mala fides (malice in law). According to Megaw LJ, it always involves a grave charge and it must not be treated as a synonym for an honest mistake. (District Council V. Kelly, (1978) 1 All ER 152). There is malice in law where “it is an act done wrongfully and willfully without reasonable or probable cause and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (A.P. V. Goverdhanlal Pitti, (2003) 4 SCC 739). Colourable exercise of power is equated with malice in law (Wadhwa V. Bihar, AIR 1979 SC 659) and in such a case, it is not necessary to establish that the respondent was actuated by a bad motive. (Venkataraman V. India, AIR 1979 SC 49). (Surendra Kumar Sinha, CJ). ...Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272] ....View Full Judgment

M.P.O./ MPO/ Monthly Pay Order: M.P.O.–– The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right unless infringement of legal right or violation of law–– 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.
We are of the considered view that the instant writ petition is not maintainable. We find merit in the petition, however, we are not inclined to grant leave, rather, dispose of the instant Civil Petition for Leave to Appeal as the writ petition was not maintainable. …Government of Bangladesh =VS= Md. Nazrul Islam, [7 LM (AD) 208] ....View Full Judgment

M.P.O–– Striking out the name of the writ-petitioner from the list of Monthly Payment Order (M.P.O.)–– Before delisting the name of respondent No.1 from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated. Therefore, the High Court Division rightly declared the action illegal. This civil appeal is dismissed without any order as to costs. ...Ministry of Education, BD =VS= Mrs. Kanij Salma, Lecturer, [10 LM (AD) 199] ....View Full Judgment

M.P.O–– Monthly Pay Order (MPO) (government portion of the salary–– The High Court Division directed the leave-petitioners to settle the index number of the writ-petitioner’s Monthly Pay Order (MPO)and to pay the writ-petitioner’s earlier MPO with effect from 14.10.2004 within 3 (three) months from the date of receipt of a copy of the judgment and order of the High Court Division. 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. Accordingly, this civil petition is dismissed. .....Ministry of Education =VS= Md. Zahurul Haque, [3 LM (AD) 272] ....View Full Judgment

No authority can act arbitrarily: Administrative actions by Government and statutory bodies should be judged on the scale of fairness. In other words, no authority can act arbitrarily and whimsically in discharging its duties, thereby affecting the rights and privilege of the property of an individual. ...Habibur Rahman Vs. Bangladesh & others, (Civil), 2 SCOB [2015] HCD 32
Duty of a lawyer:
Mr. Md. Abdul Halim, the learned Advocate appearing on behalf of the respondents, submits that having gone through the writ petition and its Annexures, he finds it difficult to oppose the Rule. We appreciate the submission of Mr. Md. Abdul Halim, which goes to show he has discharged his duties as an officer of the Court. It should be borne in mind by all the learned members of the Bar that the duty of a lawyer lies first to the Court and then to his client. ...Habibur Rahman Vs. Bangladesh & others, (Civil), 2 SCOB [2015] HCD 32 ....View Full Judgment

Nationalization of school it is the policy decision of the Government–– The Constitution does not permit the High Court Division to direct or advise the executive in the matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the executive provided the authorities do not transgress their constitutional limit or statutory power. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizen or is opposed to the provisions of the Constitution.
It can not interfere the correctness of the reason which prompted the Government to nationalize Raypur Merchants Academy instead of Raypur L.M. Pilot Model High School. It is not a matter of concern of judicial review and the Court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after consideration of all the points from different angles. In assessing the propriety of a decision of the Government the High Court Division cannot interfere even if a second view is possible from that of the Government. The Court has to consider whether a decision making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its power.
We do not find any error in the impugned administrative decision for which it can be said that the executive authority exceeded its’ power or committed an error of law or violated the principles of natural justice and, thus, the judgment of the High Court Division does not call for any interference. ...Raypur L.M. Pilot Model High School =VS= Ministry of Education, [6 LM (AD) 269] ....View Full Judgment

Natural Justice¬:–– When a petition/memo is filed in the wrong jurisdiction or forum–– It is common practice to allow a party to file a petition/memo in the proper form when it is observed that the said memo/petition was filed in the incorrect form. In other words where instead of filing an appeal a revision was filed, direction would be given to either convert the revision into an appeal or to file the appeal afresh. In such circumstances, usually the time consumed in proceeding under the wrong jurisdiction or forum is directed to be deducted. Equally when a memo/appeal is filed instead of petition for revision the Court may direct that the appeal be treated as revision. …Kutub Uddin =VS= Syed Moinuddin Ahmed, [7 LM (AD) 31] ....View Full Judgment

Natural Justice¬:–– When judicial review is permissible–– It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. .....Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, [4 LM (AD) 231] ....View Full Judgment

New Rule effective and applicable–– The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same. .....Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, [1 LM (AD) 56] ....View Full Judgment

New defence plea at appellate stage: Before this Appellate Division the defendant-appellant did not raise any question as to the correctness of the above concurrent findings of the courts of facts, rather it has raised a new plea to the effect that the plaintiffs could not prove that the defendant bank sold the said 152 travellers’ cheques. But we are unable to accept this new defence plea at this stage specially in view of the pleadings of the contesting parties and the evidence adduced by them. …Uttara Bank Ltd Vs Credit and Commerce Ins. (Saudi) Ltd & ors, (Civil), 2 SCOB [2015] AD 8 ....View Full Judgment

Ocean Bill of Lading: In order to get delivery order from the carrier as well as for getting payment under the L/C, it was mandatorily required to present “Ocean Bill of Lading” and none else. But in this case, admittedly, the petitioner produced House Bill of Lading-against which petitioner is not entitle to get any delivery of goods. ...Md. Ibrahim Vs. Bangladesh, (Civil), 1 SCOB [2015] HCD 136 ....View Full Judgment

An Officer serving under the Government can be posted as an Officer on Special Duty. However, this power or authority of the Government is circumscribed by certain conditions, which, amongst other, stipulate that the maximum period for which a person can be designated as an OSD shall not exceed 150 days. ...M. Asafuddowlah Vs. Bangladesh, (Civil), 15 SCOB [2021] HCD 1 ....View Full Judgment

Observation–– Judicial domain requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms. Observation should not be made by the Court against any person unless it is essential for decision of the case. ...Hosneara Begum, Adv. =VS= A.K.M. Bahauddin alias Bahar, [9 LM (AD) 669] ....View Full Judgment

Observation is expunged–– Review–– While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code of Criminal Procedure. This observation is made through overlooking sub-section (1B) of section 6 of the Criminal Law Amendment Act, 1958. The above observation is expunged. These petitions are disposed of with the above expunction and observations. .....Manzur Ahmed =VS= Government of Bangladesh, [5 LM (AD) 205] ....View Full Judgment

Observation of the Court–– A Court has right to make observation(s) in dealing with a matter, but it cannot make any observation(s) about the behavior or action of the writ respondent(s) in future, particularly, about the possible disobedience or violation of the order/direction/ observation of the Court, the reason being that when a Court passes an order or gives a direction or makes an observation it is presumed that such order/direction/ observation shall be obeyed and complied with in its true purport and spirit. And if the Court itself nourishes an element of doubt in its mind as to the obedience or the compliance with its order/ direction/observation, then there cannot have any meaning in passing such order/ giving such direction/making such observation. And such kind of doubt by a court shall make the people's confidence in the administration of justice shaky. We would like to add further that a Court must always pass an order/give direction/and make observation in a positive way to ensure fair justice and not in a manner as quoted hereinbefore. .....Land Reform Board =VS= Md Hamdu Miah, [5 LM (AD) 117] ....View Full Judgment

Overrule the Appellate Division–– An overruled point of law cannot be ignored by this court and when a proposition of law has been settled, which is binding on all courts and though it is not binding on this court, it can overrule the said decision. A decision of a court overlooking a decision, or if it is contrary to law, constitutes an error apparent on the face of the record justifying its review. It is immaterial whether such error occurred by reason of lawyer’s mistake or oversight on the part of the court. The appeal is allowed without any order as to cost and the leave petitions are disposed of. The judgment in the appeal shall govern the leave petitions. .....Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, [4 LM (AD) 66] ....View Full Judgment

Owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots–– The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots and till such date the shop keepers shall remain in possession of the shops. The construction must be completed within three years from the date of taking possession and in case of failure to handover possession within the above time, the landlords shall pay compensation to the tenants. .....Banichitra Pratisthan Ltd. =VS= Bilkis Begum, [3 LM (AD) 46] ....View Full Judgment

Persona Designata: In legal parlance the expression “persona designa” means a person who has been described in a statute or a legal instrument by his official designation, and his function may be judicial or may not be so. But if the function of the designated person is judicial in character then he is nothing but a “court” even though he is not described as a court but by official designation. The test is the power and function he has to discharge. …Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors., (Civil), 10 SCOB [2018] AD 19
On this score since the revisional application lies against the final order of the District Judge under a special law, the respondents herein correctly invoked revisional jurisdiction of the High Court Division against the order of the District Judge passed in appeal preferred against an order of eviction by the Deputy Commissioner pursuant to the prayer of the Waqf Administrator. Hence on the question as to whether revision is maintainable we hold the same in the affirmative. …Alhaj Dr. Chowdhury Mosaddequl Isdani Vs. Abdullah Al Munsur Chowdhury & ors., (Civil), 10 SCOB [2018] AD 19 ....View Full Judgment

Pre-emption, Extinguishment of Co-sharership; The 62 DLR case has not overruled the contention that ‘only by a partition suit or partition deed the co sharership is extinguished’. So in this case by separating the Jama the pre-emptor and/or his predecessor having already lost her/his character of cosharership in the case jote so the pre-emptor is no more a co-sharer and as such his right to pre-empt as a co-sharer does not exist anymore …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106

Not only separation of Jama/Khatian by a party will cause him to cease to be a cosharer in the jama but co-sharership will also be ceased by a final decree in a partition suit or by a registered deed of partition. That means either of the two will cause a person to cease his co-sharership in the case jote. …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106

The appellant cannot take the plea of non-service of notice upon the other party once he has taken benefit of such mutation or separation of “Jama”. Such plea,if any, can be taken only by the party affected by it or to whose disadvantage the same has been obtained and upon whom the notice was required to be served. But not the person at whose prayer separation has been made and who takes the benefit of such separation. …Abul Kasem Md. Kaiser Vs. Md. Ramjan Ali & ors., (Civil), 14 SCOB [2020] AD 106 ....View Full Judgment

The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. ...Md. Moniruddin Ahmed Vs. RAJUK & Ors., (Civil), 1 SCOB [2015] HCD 129

In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. ...Md. Moniruddin Ahmed Vs. RAJUK & Ors., (Civil), 1 SCOB [2015] HCD 129

From promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. ...Md. Moniruddin Ahmed Vs. RAJUK & Ors., (Civil), 1 SCOB [2015] HCD 129 ....View Full Judgment

Partition Suit: In our view the petitioners will not be prejudiced for not impleading them parties because as legal heirs, they are entitled to get the shares of their predecessors. Even a non contesting party, who has got share in the partible property, can pray for allotment of saham on payment of proper court fees before drawing up the final decree. ...Aleya Begum & ors Vs. Mir Mohsin Ali & ors, (Civil), 8 SCOB [2016] HCD 147 ....View Full Judgment

Principle of natural justice has been followed
It is not the case of the petitioners that they were not given an opportunity of being heard. But their case is, the opportunity was not adequate as the notices did not reflect the allegations and the time and place of incidents. Here, the practical scenario is that certain incidents took place, which are criminal in nature. The inquiry committee called all the relevant witnesses, victims and also took statements from the petitioners, who appeared before the inquiry committee. As such, the petitioners are all well conversant with the allegations and facts involved with the alleged incidents. Therefore, due to nonmentioning of the allegations and the time and place in the subsequent notices to show cause, did not materially prejudice the petitioners in submitting their self-defence in terms of “being heard by ample opportunity” and as such we are of the view that the principles of natural justice have not been violated, in other words, the cited cases are not applicable in view of different facts and circumstances of the present cases. ...A.S.M. Mahadi Hassan & ors Vs. BUET & ors, (Civil), 18 SCOB [2023] HCD 33 ....View Full Judgment

Promotion solely on the basis of an interview;
It appears that there is no specific guideline as to what criteria is to be used for awarding marks in the interview so that the merit of a candidate may be assessed. Not only that the aforesaid order also provides that all persons eligible for promotion i.e. those who have completed a specified number of years in service without having any adverse remarks in this service record will be called for interview with the objective of being promoted. The said process by its nature appears to disregard an employee’s performance in his service as well as his Annual Confidential Report (ACR) in the cumulative report about the performance of an employee over a number of months and put together a number of years and they are supposed to reflect an employee’s performance in his job. This appears to have been to falling disregarded while considering an employees promoion to the next higher post. The aforesaid Administrative Order seems to stipulate that the promotion will be given solely on the basis of an interview but there is no guideline or criteria as to how the interview is to take place and what method is to be used for assessing the merit of the incumbent. ...Md. Reza Kamal Vs. Secretary, Ministry of Civil Aviation, Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 15

In the instant case according to the Administrative Orders of Biman fitness of a candidate for promotion to the higher post is to be on the basis of merit cum seniority an opposed to seniority cum merit. Merit cum seniority means the candidate who has got the highest marks is to be given priority for promotion over other candidates irrespective of his seniority in relation to the other candidates. This process allows the junior most person to supersede his senior if he possesses merit. This is an extra ordinary rule and persons who have put in several years of service may be superseded by his junior colleagues. It is not for this Court to decide whether this system of giving promotion on the basis of merit cum seniority or seniority cum merit is to be maintained. However, if merit is to get precedence over seniority then the assessment of merit of a candidate must be done most stringently and there should be no scope for arbitrary decisions of pick and choose. ...Md. Reza Kamal Vs. Secretary, Ministry of Civil Aviation, Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 15 ....View Full Judgment

Principle to amend Pleadings; We find that one of the fundamental principles governing the amendment of the pleadings is that all the controversies between the parties as far as possible should be included and multiplicity of the proceedings avoided. ...British American Tobacco Bangladesh Company Ltd.Vs. Begum Shamsun Nahar, (Civil), 12 SCOB [2019] HCD 125 ....View Full Judgment

Private body -Acting on the footing of Republic; Thus it is palpably clear that the respondent no. 1 (Alliance) has been acting with the consent of the DIFE and assisting it in inspecting and ensuring the safety of the garment factories in the country. So we hold that the Alliance has been performing de facto functions in connection with the affairs of the Republic. ...M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors., (Civil), 13 SCOB [2020] HCD 1 ....View Full Judgment

Permanent injunction, City Corporation tax, boundary of the property, transfer of specific property, prima-facie title, tax receipt, misreading and non-reading of evidence That the City Corporation holding tax receipt is not the proof of possession if isolated from a lawful prima-facie title claimed on the basis of apparently genuine deed and with reference to a clear chain of title. ...Mosammat Syeda Shamima Kader Vs. Mohammad Enamur Rashid Chowdhury, (Civil), 13 SCOB [2020] HCD 79
It has to be noted here that, this case of claiming title in the suit property based on no title in any specific property is apparently a case of the land grabbers. Case of a land grabber is totally isolated from the chain of title and their deeds do not refer to any specific immovable property, so that a land grabber can grab any property or any portion of a property, on the basis of the papers created by or kept in their hands. ...Mosammat Syeda Shamima Kader Vs. Mohammad Enamur Rashid Chowdhury, (Civil), 13 SCOB [2020] HCD 79 ....View Full Judgment

Pleading of the plaintiff is not evidence–– As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. .....Government of Bangladesh =VS= Md. Mizanur Rahman, [4 LM (AD) 138] ....View Full Judgment

Possession:–– No break in respect of the possession of the petitioner–– There was no break in respect of the possession of the petitioner in the case land, made the Rule absolute declaring that the impugned order of eviction was issued without lawful authority and is of no legal effect. Moreso, since the Government having granted lease to the petitioner at a subsequent stage, and the lease never having been cancelled by the Government, the petitioner acquired valid and lawful right in respect of the land in question and this right, interest and possession of the lease hold property cannot be disturbed at the instance of a stranger. .....Nurul Amin(Md.) =VS= Dullah Miah, [3 LM (AD) 428] ....View Full Judgment

Purchase deed:–– Appellate Division view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified. .....Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, [1 LM (AD) 385] ....View Full Judgment

Presumption as to awareness of the Legislature:
While interpreting an amending law enacted by parliament, it cannot be presumed that the Legislature was unaware of the existing law or that the Legislature has committed any mistake by not mentioning a particular matter in the amending law. ...Civil Miscellaneous No. 11 of 2022 (Reference), (Civil), 17 SCOB [2023] HCD 8 ....View Full Judgment

Preamble of a statute: The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous. …S. N. Kabir.vs. Fatema Begum & ors, (Civil), 3 SCOB [2015] AD 16 ....View Full Judgment

The power of Tribunal to pass interim order: Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. …Bangladesh & ors Vs Sontosh Kumar Shaha & ors, (Civil), 6 SCOB [2016] AD 1 ....View Full Judgment

Pre-emption: On scrutiny of the deposition of this preemptor-petitioner we find that the preemptorpetitioner while deposing before court, though denied this alleged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptorpetitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. In the circumstances the trial court rightly dismissed the case for preemption. …Shantipada Shil Vs Sunil Kumar Sarker and others, (Civil), 7 SCOB [2016] AD 37 ....View Full Judgment

Pleading of the plaintiff is not evidence: As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. …Bangladesh Vs. Md. Mizanur Rahman, (Civil), 9 SCOB [2017] AD 37 ....View Full Judgment

The question whether a statute operate retrospectively, or prospectively only, in one of legislative intent. In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. However, a contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof. ...PHP Steels Ltd Vs. Commissioner, Customs Bond Com. & ors, (Civil), 2 SCOB [2015] HCD 73 ....View Full Judgment

Regarding the claim (No.viii) we find that the accident has taken place during the contract period and thereafter he took treatment and failed to succeed as a result he suffered a lot and finally he lost one of his legs, which was also held within the time frame of contract and MoU and claims was made within stipulated time mentioned in MoU. So there is nothing wrong to get the benefit of the insurance claim. ...Delta Life Insurance Co. Ltd Vs. BADC, (Civil), 2 SCOB [2015] HCD 77
The court has no discretion in the matter awarding compensation. However considering the sufferings of the applicant as well as upon taking the considered view of agreement made by the appellants advocate, we are of the opinion that the interest of justice will be served if the appellants are directed to pay the claim of Abdul Motalib along with interest at the rate of 6% of his claim from the date of institution of the suit till date. ...Delta Life Insurance Co. Ltd Vs. BADC, (Civil), 2 SCOB [2015] HCD 77 ....View Full Judgment

Reading out a document to the executants before execution, is an usage and custom having the force of law:
The requirement to read out a document to the executants before execution, is an usage and custom followed from the time immemorial. This custom, having the force of law, requires to record the fact in a deed, that the same was read out and explained to the executants, so that it can be inferred that they have executed the deed voluntarily and having understood the contents of the same. Unless a deed is read out to the executants, it cannot be said that they had understood its contents and had voluntary executed the same. However, there might be exception to this Rule and this might not be fatal in each case and the application of this Rule will depend upon the facts and circumstances peculiar to each case. …Abedun Nessa Vs. Jaher Sheikh and others, (Civil), 16 SCOB [2022] HCD 37 ....View Full Judgment

Recovery of possession:–– Possession of the suit land so the plaintiff having not made any prayer for recovery of possession of the suit land–– All the three courts below committed wrong and illegality in dismissing the suit of the plaintiff holding to the effect that the plaintiff’s suit is not maintainable without prayer for setting aside the judgment and decree passed in title Suit No.107 of 1968 and without prayer for recovery of khas possession. The plaintiff acquired valid right, title and interest in the suit land by virtue of purchase by a registered kabala of the year 1963, the exhibit-7 and he has also proved his possession in the suit land. In the circumstances the plaintiff is entitled to get the decree as prayed for. .....Masud Alam =VS= Abdul Khaleque Miah, [3 LM (AD) 261] ....View Full Judgment

Recovery of possession:–– Recovery of khas possession of the suit land–– We find from the cross-examination that he was not present at the time of the settlement with the family members. His wife was present. She was not called to give evidence. In his cross-examination DW2 (defendant No.2) admitted that the plaintiff got land in all the plots at the time of amicable settlement which took place after his father's death in 1995. Hence the judgement of the appellate Court was palpably wrong and the High Court Division correctly reversed the same upon giving cogent reasons. Since there was admittedly amicable settlement within the family there is no question of filing a further suit for partition. In the light of the facts and circumstances discussed, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. The appeal is dismissed. ...Harmuj Sarker =VS= Mohammad Anis, [6 LM (AD) 114] ....View Full Judgment

Recovery of possession:–– Suit was not maintainable without the prayer for recovery of possession–– It would not be proper to remand the case after 30 years of it’s institution allowing the plaintiff to prove the deed produced by the defendants forged. We have already held that the plaintiffs have admitted the possession of the defendants in the suit land and that the instant suit was not maintainable without the prayer for recovery of possession, we are of the view that the prayer for remand of Mr. Samader does not deserve any consideration. We do not find any merits in the appeal. .....Parmalundra Joydhar =VS= Bhagirath Talukder, [5 LM (AD) 95] ....View Full Judgment

Review–– We have given our anxious consideration to the facts and circumstances of the case and we are of the view that the ends of justice would be best served if the appeal filed by the Government before the High Court Division is heard on merit. The order dated 12.06.2016 is set aside after reviewing the same. The judgment and order dated 21.04.2013 passed by the High Court Division is set aside and the delay of 643 days in preferring the appeal before the High Court Division is condoned. The High Court Division is directed to register F. A. T. No.571 of 2012 as First Appeal and to dispose of the same in accordance with law. ...Government of Bangladesh =VS= Samsuddin Monir Khan, [6 LM (AD) 141] ....View Full Judgment

Review–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional–– The decisions and steps taken for protection of the villages from the erosion of the river Meghna are totally executive decisions of the Government. The policy decision of the Government may be interfered with only when the same is illegal or unconstitutional or shockingly arbitrary in the wednesbury sense. It is the duty of the policy maker to decide how a village would be protected from erosion of a river and what would be the acceptable proposal for embankment works and what would be the proper way of implementation of proposal of embankment considering the financial capacity of the Government.
The instant case, in fact, the High Court Division, ignoring constitutional limitation directed the executive to sanction money instead of wheat for protection of the above mentioned villages from erosion of the river Megna. Our considered view is that the impugned judgment and order passed by the High Court Division was unlawful. The review petition is disposed of. …Ministry of Finance, Bangladesh =VS= Salim Khan (Md.), [7 LM (AD) 236] ....View Full Judgment

Revisional jurisdiction:–– High Court Division exercising revisional jurisdiction is very limited–– Where the trial Court and the appellate Court come to a decision which is not conflicting, and the finding is concurrent, the function of the High Court Division exercising revisional jurisdiction is very limited. It can only look to see whether there was any misreading or non-consideration of evidence on record or any misconstruction of law. We find that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. We are, therefore, of the view that the trial Court and the appellate Court rightly dismissed the suit for declaration of title. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. .....Jahangir (Md.) =VS= Noor Mohammad, [5 LM (AD) 142] ....View Full Judgment

Right of appeal:–– Third party right to file an appeal–– Even a third party can file an appeal in case he is affected by a decree passed in a suit. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 168] ....View Full Judgment

Remission of interest to the sick industry: The question is whether the expressions ‘প্রাপ্য সুদ’ and ‘দন্ড সুদ’ used in this sub-clause (ই) above include remission of all interest accrued from the day of taking loan and already paid by the sick industry by installments against the total outstanding amount to be excluded or the interest accrued on the day of recommendation made by the Special Committee out of the total amount of outstanding dues. The expression ‘প্রাপ্য’ means obtainable or to be paid, that is, the interest which has accrued from the date of privilege of remission of interest given and not the past interest already paid. …Bangladesh Shilpa Rin Sangstha & anr Vs. Rony Twines Ltd & ors, (Civil), 4 SCOB [2015] AD 1 ....View Full Judgment

Suit for declaration, Adoption; The adoptive father of the child to be adopted must belong to the same caste and that adoption would be valid if they belong to different sub-division of the same caste. …Palash Chandra Saha Vs. Shimul Rani Saha & ors., (Civil), 14 SCOB [2020] AD 88 ....View Full Judgment

Statutory privilege:
A statutory privilege is a nascent right reserved to an individual person but this privilege is lost once he/she himself infringes it or abandons it voluntarily. The Writ Petitioner in fact has abandoned the statutory privilege by willfully and deliberately refraining from depositing the balance amount of bid money within the prescribed period of limitation. By filing the application seeking permission to deposit the balance 75% bid money instead of depositing the amount directly, the auction purchaser relinquished his known statutory right as auction purchaser and waived all his rights to the property in question as well as the earnest money deposited by him. ...M. A. Hashem Vs. Artha Rin Adalat, Dhaka & ors, (Civil), 6 SCOB [2016] HCD 19
Where there is equal equity the law shall prevail: Under the rule of equity, the holder of a legal as well as an equitable interest shall be preferred on the basis of the principle that where there is equal equity the law shall prevail. In other words, a legal interest is superior as between two persons having equitable interest because equity follows the law. ...M. A. Hashem Vs. Artha Rin Adalat, Dhaka & ors, (Civil), 6 SCOB [2016] HCD 19 ....View Full Judgment

Suit Afresh–– There is some formal defect in framing the suit the plaintiffs are permitted to withdraw from the suit with permissions to sue afresh–– The defect in the frame of the suit as pointed out in the application appears to us formal in framing the suit and because of such defect, the suit shall fail. Therefore, we find merit in the application and we are inclined to allow the same. The application is allowed. The plaintiffs are permitted to withdraw from the suit with permissions to sue afresh. The judgments and decrees of the Courts below as well as the impugned judgment and order are set aside. …Zahanara Begum =VS= Motiar Rahman(Md), [7 LM (AD) 107] ....View Full Judgment

Solatium to the defendant–– We are inclined to give a solatium to the defendants, the heirs of Anu Mia. Considering all aspects we fix the solatium at Tk.1,60,000/- (one lac sixty thousand) to be paid by the plaintiffs to the defendants, the heirs of Anu Mia. .....A. K. M. Abdul Ali =VS= Rafiqul Islam, [3 LM (AD) 37] ....View Full Judgment

Statutory deposit:–– Statutory deposit along with an additional 8% as interest was not made. The High Court Division rejected the contention and discharged the Rule. It appears to us that the point raised by the pre-emptees also requires determination of facts. Since the hearing of the case has already commenced, the point raised by the pre-emptees can very well be agitated before the trial Court along with the other issues. And if such a point is agitated, whatever observations and findings have been given in the impugned judgment and order by the High Court Division on the said point shall not be binding upon the trial Court in deciding the same afresh. The trial Court shall dispose of the same along with the other issues in accordance with law. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, [1 LM (AD) 274] ....View Full Judgment

Summons:–– Service of Summons–– The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. .....Rasheda Begum & others =VS= Abul Hashem & others, [1 LM (AD) 243] ....View Full Judgment

Suo Motu Rule–– To pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim–– Over the said incident a case has already been instituted and the police of Paltan Police Station has taken investigation. Since an investigation is pending over the said incident, the High Court Division acted illegally in directing to lodge the F.I.R against specified officials of the Dhaka City Corporation south, Dhaka. If the investigating agency finds prima facie case then it may submit police report against the persons who have shown negligence in keeping open the manhole. The observations and direction so far it relates to lodging the F.I.R and taking legal action by the High Court Division are hereby expunged. We direct the City Corporation South, Dhaka and Dhaka WASA to pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim Sano Mia equally within 6(six) weeks from the date of receipt of the order. .....Rustom Ali(Md.) =VS= The State, [5 LM (AD) 158] ....View Full Judgment

Specific performance of contract: As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126 ....View Full Judgment

Therefore, since the very definition of the term ‘Coaching Business’ has only attracted the involvement teachers of the above mentioned institutions as a mischief, this Nitimala in fact has not prohibited the ‘coaching business’, or ‘coaching centers’, run by any individual in his or her private capacity who is not a teacher of the above mentioned institutions. This means involvement of an individual, who is not a teacher of the above mentioned institutions, in such coaching centers or business has not been prohibited by this Nitimala. Therefore, the prohibition, as provided by this Nitimala, only applies to the teachers of the above mentioned institutions and not to any individuals or private citizens or persons, who are not teachers of such educational institutions. ...Dr. Farhana Khanum Vs. Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 276

From the above discussions, it appears that even in the absence of the said Nitimala, the petitioners and other teachers of non-government and government schools and colleges are not allowed to engage themselves in any sort of coaching business. This prohibition has not been provided by the said Nitimala of 2012, rather this has been given by their concerned service Rules which are delegated legislations and applicable to them. When the petitioners, or other teachers of government and non-government schools and colleges, joined their services, they joined as such fully knowing that the said Service Rules would be applicable to them.
Therefore, by the said Nitimala, the government has in fact supplemented the provisions which are already in the statute books and in doing so, the government does not need to show any other sanction of statute or Act of parliament. It is the part of the constitutional power of the government as executive to run the governance and in running such governance, it is the duty and obligation of the government to take steps for implementation of the laws and regulations time to time enacted by the parliament or by the delegatees of the parliament. Under such obligations, the governments in modern countries issue various Circulars, Paripatra, Nitimala etc. and this has now become essential and normal administrative technic in modern countries. The only limitation in issuing such Nitimala or Nirdeshika is that by such Nitimala or Nirdeshika, the government cannot curtail the rights of any citizen which is already granted in his/her favour either by the Constitution or by law or by any other legal instruments. ...Dr. Farhana Khanum Vs. Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 276

Therefore, in the facts and circumstances of the present cases, the petitioners have failed to show that either the Constitution or any act of parliament or any delegated legislation of this Country has given them any right to get involved in coaching business. Rather, it has become evident from the above referred delegated legislations that in fact they have been prohibited by the law of the land from getting involved in coaching business. Thus, in so far as the said Nitimala is concerned, since the same has not curtailed any rights of the petitioners guaranteed either by the constitution or any law, it cannot be knocked down by this Court. Rather, it should be protected by this Court as it is the supplemental instrument to the already existing laws of the land. In this regard, the decisions of Indian Supreme Court in Bennett Coleman Co. v. Union of India, AIR 1973 SC 106, Bishamber Daval Chandra Mohan v State of UP, AIR 1982 SC-33 and Distt. Collector, Chittoor v Chittor Disttt. Groundnut Traders Assn, AIR 1989 SC 989 may be looked into as references. Therefore, on this point of unconstitutionality and unimplementablity of the said Nitimala of 2012, as argued by the learned advocates for the petitioners, we find no substance. ...Dr. Farhana Khanum Vs. Bangladesh & ors., (Civil), 12 SCOB [2019] HCD 276 ....View Full Judgment

To provide Emergency Medical services for accidental injured persons and protecting Good Samaritan.
In substantiating the significance of the role of Good Samaritans the Petitioners draw on a similar exercise previously undertaken under the aegis of the Supreme Court of India in Save Life Foundation and another vs. Union of India and another in Writ Petition (Civil) No. 235/2012 in which the Ministry of Road Transport and Highways (Road Safety) issued necessary directions by gazette notifications with regard to the protection of Good Samaritans to be followed by hospitals, police and all other authorities until appropriate legislation by the Union Legislature. ...Syed Saifuddin Kamal & anr. Vs. Bangladesh & ors., (Civil), 13 SCOB [2020] HCD 85

This Court, hereby, further directs, and as per the prayer of all parties concerned agreed on the same, that the নীতিমালা in its entirety be deemed enforceable as binding by judicial sanction and approval pending appropriate legislative enactments incorporating entrenched standards objectives, rights and duties. This Court further directs a wide dissemination of the নীতিমালা through publication variously in the Official Gazette and through electronic and print media as shall serve both public interest and secure a broader objective of social mobilization of views and perception of the necessity of such guidelines as indeed anticipated in Clause 15 of the নীতিমালা। Such dissemination shall positively be initiated within a period of 2 (two) months from the date of receipt of a certified copy of this Judgment and Order by the Respondent No. 1, Ministry of Health reflecting preferably all textual amendments as observed upon above by this Court and declare specifically and expressly in its preambular provisions the approval and sanction granted by this Judgment and Order of today’s date clothing the নীতিমালা with legal enforceability up until necessary legislative enactments are brought forth. ...Syed Saifuddin Kamal & anr. Vs. Bangladesh & ors., (Civil), 13 SCOB [2020] HCD 85 ....View Full Judgment

The Appellate Court being last Court of fact–– The Appellate Court being last Court of fact considered the evidence on record, both oral and documentary and found that the heba deeds in question were not executed by the donor. We find nothing wrong with the Appellate Court as well as the High Court Division in relying upon exhibit-‘2’ in coming as to the genuineness of the heba deeds. When the plaintiff categorically challenged that Md. Motaleb Miah was a literate person and there was no reason on his part to execute and register the heba deeds in question by putting the L.T.I., the onus was squarely upon the defendants to prove their genuineness by examining at least the witness who took his L.T.I in the deed. .....Ash Mohammad =VS= Most Imamun Nessa, [5 LM (AD) 54] ....View Full Judgment

Third party right to file an appeal: Even a third party can file an appeal in case he is affected by a decree passed in a suit. …Rasheda Begum & ors vs. Abul Hashem & ors, (Civil), 3 SCOB [2015] AD 5

Service of Summons: The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest. …Rasheda Begum & ors vs. Abul Hashem & ors, (Civil), 3 SCOB [2015] AD 5 ....View Full Judgment

The trial Court held that the defendant could not prove that Abdul Ali and Anwar Ali were the sons of Ashraf Ali and Anwar did not go to India. The appellate Court, upon evaluating the evidence, reversed the finding of the trial Court holding that it was the duty to prove such assertion by the plaintiffs by adducing relevant papers or by circumstantial evidence but the plaintiffs did not try to do so. This view of the appellate Court also based on proper appreciation of the evidence and materials on record. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment

Unlawful Appointments not validated by rendering service; If any appointment is given by the Authority in gross violation of the Rules, lapse of any period of time and rendering of service in the said post by the incumbent cannot clothe the said appointment with any legal validity. ...Dr. Nafia Farzana Chowdhury Vs. BSMMU & ors., (Civil), 14 SCOB [2020] HCD 33 ....View Full Judgment

Unconditional apology–– We are not inclined to uphold the order of cancellation of the allotment of land made in favour of the University or dislodge the university from Plot No.4 to an alternative site. However, considering the gravity of the situation and this being a matter of great public importance concerning the right of the people in general and the Musallies from home and abroad who are meeting in the huge congregation of Bishaw Istema twice in every year for the last 40 years to perform their prayer in the Bishaw Istema Math and therefore, invoking the power of complete justice this Division is of the opinion that in the interest of justice a 40 feet wide Approach Road (passage) should be kept open for the people in general and the Musallies of the Bishaw Istema of the Tabligue Jamat in particular. Accordingly, the respondent Nos. 1 to 3 be directed to demolish the wall and other structures which had been constructed on the land of the original 100 feet wide Approach Road (passage) for keeping open a 40 feet wide Approach Road for the use of the people in general and the Musallies of Bishaw Istema of the Tabligue Jamat which has been in use for more than 40 years. The unconditional apology tendered by the respondent Nos.1 and 2 are accepted and they are warned to be cautious in future while dealing with such order of this Court. .....RAJUK =VS= International University of Business, Agriculture and Technology, [4 LM (AD) 303] ....View Full Judgment

Voluntary retirement of service; After 10 years of their voluntary retirement and after receiving full financial benefits as offered the prayers for reinstatement cannot be termed as reasonable and fair. After having applied for voluntary retirement of service and taken the money it is not open to contend that they exercised the option under any kind of coercion and undue influence. Who had accepted the ex gratia payment or any other benefit under the scheme, could not have resiled therefrom. It became past and closed transaction. The writ petitioners having accepted the benefit could not be permitted to approbate and reprobate nor they be permitted to resile from their earlier stand. …BADC Dhaka & ors. Vs. Md. Shohidul Islam & ors., (Civil), 12 SCOB [2019] AD 23 ....View Full Judgment

Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits. …BADC Vs Md. Abdur Rashid & ors, (Civil), 2 SCOB [2015] AD 24
The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme. …BADC Vs Md. Abdur Rashid & ors, (Civil), 2 SCOB [2015] AD 24 ....View Full Judgment

What is void ab initio, that cannot be validated later in any way:
However, the Administrative Appellate Tribunal miserably failed to notice that in the instant case there found no application of the said “special circumstances of the case” by the Government. Rather the then Director General applied the said “special circumstances of the case’ concerning the unauthorized leave of absence of the respondent for 07 years and 07 months and 24 days from his work. As the Director General was not empowered to act under rule 34, his alleged application of the said “special circumstances of the case’ was not only without lawful authority but also void ab intio. What is void ab initio, that cannot be validated later in any way. …Bangladesh and another Vs. Sayed Mahabubul Karim, (Civil), 16 SCOB [2022] AD 46

No estoppel against law:
Doctrine of estoppels, waiver and acquiescence is not applicable against statutory provisions. …Bangladesh and another Vs. Sayed Mahabubul Karim, (Civil), 16 SCOB [2022] AD 46 ....View Full Judgment

When Executing Court can go behind the decree:
The ratio that Executing Court cannot go behind the decree is not absolute. It has got four exceptions; the Executing Court may refuse to execute the decree, if it is found that the decree was passed by the Court having no jurisdiction or it is made against dead man or the decree is tainted with apparent fraud. ...Md. Shahin Ikbal Vs. General Certificate Officer & ors, (Civil), 17 SCOB [2023] HCD 168 ....View Full Judgment

When a higher authority, namely the NBR, has expressed its opinion agreeing with the proposal sent by the earlier Bond Commissioner (Mr. Helal Uddin), it became very much difficult for the subsequent Bond Commissioner (Mr. Enayet) to go for any other option but to follow the proposal as was agreed upon by the NBR. This being so, this Court is of the view that, the show cause notice dated 25.05.2004 was in fact a closedminded show cause notice. Therefore, giving reply to the such show cause notice, or attending a hearing pursuant to such show cause notice, became a mere formality for the petitioner. This view is further strengthened when we see the actions taken by the Bond Commissioner against the petitioner at the same time of issuance of the said show cause notice. When the Bond Commissioner requests other concerned authorities to suspend a license for all practical purposes, no reasonable reading can be done from such actions that the said show cause notice was in fact a closed-minded show cause notice inasmuch as that the concerned Commissioner had already decided the fate of the petitioner’s license. ...Coats Bangladesh Ltd Vs Commissioner, Customs Bond Com. & ors., (Civil), 5 SCOB [2015] HCD 40 ....View Full Judgment

Writ Court is also a Court of equity: Will the petitioner continue to suffer loss of his seniority through no fault of his own? Is the Writ Court powerless in this regard? In this connection, it may be pointed out that the Writ Court is also a Court of equity. The principles of natural justice, equity and good conscience demand that the seniority of the petitioner be restored at least from the date of promotion of his colleague Dr. Md. Jubair Bin Alam to the post of Personal Professor on 06.11.2004 who admittedly made his application therefor on 28.12.2003 which was subsequent to the date of making of the application by the petitioner on 21.12.2003. In this way, the injustice done to the petitioner, according to us, can be remedied. ...Dr. Moazzem Hossain Vs Bangladesh & ors, (Civil), 6 SCOB [2016] HCD 34 ....View Full Judgment

When the meaning of any word/terminology is simple and plain, a Court shall not indulge in carrying out an exercise of interpreting the said word for finding out a different meaning:
It is the consistent view of all the Apex Courts across the globe that when the meaning of any word/terminology is simple and plain, a Court shall not indulge in carrying out an exercise of interpreting the said word for finding out a different meaning, going against the rules of statutory interpretation; for, it is the well-established principles of statutory interpretation that normally the plain literal meaning of any word or expression shall be taken and applied by the Court unless the said meaning creates contradiction with the other provision of the same statute. And, if the interpretation of the word/terminology leads to such an alternative meaning which is likely to introduce a confusion hampering smooth functioning/working of the prevailing/existing system, then, it is incumbent upon the Court to reject the alternative meaning. ...Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors., (Civil), 15 SCOB [2021] HCD 60

The golden rule of statutory interpretation:
The golden rule of statutory interpretation is that when any ambiguity appears in a provision of a statute, the first option for the Court is to find out its literal meaning. And, in the event that it becomes a complex task for the Court to go with the above rule, only then, the Court would endeavour to discover its meaning with the help of the preamble and other provisions of the concerned statute without making any of its provisions nugatory. ...Engr. Md. Anwar Hossen Vs. Chittagong Club Ltd & ors., (Civil), 15 SCOB [2021] HCD 60 ....View Full Judgment

Will/ Probate–– The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Ramesh Chandra Das =VS= Gopal Chandra Majumder, [4 LM (AD) 321] ....View Full Judgment

We hold that the plaintiff was entitled to get exclusion of the time of the absence of defendant Nos.1 and 2, the heirs of Syed Salamat Ali from Bangladesh and the High Court Division rightly gave the said benefit and held that the suit was not barred by limitation. We further hold that time was not the essence of the contract and with the execution and registration of the general power attorney in favour of the plaintiff by Salamat Ali, the earlier contract dated 06.03.1978 was novated and the High Court Division rightly held so. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126
We find substance in the submission of Mr. Mahmudul Islam that cancellation of lease in favour of lessee, Syed Salamat Ali after filing the suit was absolutely malafide as in the suit, the Government and its other functionaries concerning the suit property were very much parties and in the suit, the plaintiff prayed for declaration of title to the suit property along with the other reliefs. The suit being pending by no logic, the Government could cancel the lease. We also cannot ignore the submission of Mr. Mahmudul Islam that the cancellation order was an antedated one inasmuch as the defendant Government though filed written statement in the suit on 12.05.2004, did not say the said fact in the written statement. …Bangladesh & ors Vs. Hamid Ali Chowdhury & ors, (Civil), 8 SCOB [2016] AD 126 ....View Full Judgment

Without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents: It is patent from the records that all the respondents went through the rigorous process of selection and were appointed in their respective post. They were served with notices cancelling their appointment without issuing any show cause notice. The respondents joined their posts and served accordingly for more than nine months at the time of filing their writ petition. We are of the view that without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents. …NTRCA & anr Vs. Lutfor Rahman & ors, (Civil), 9 SCOB [2017] AD 62 ....View Full Judgment

Company matter:
Without reference of the decision of the Board of Directors, note mentioning the consent of the board is an after thought act and was created to justify the malafide action of the Managing Director and CEO of the Biman:
It appears from the above that in note No. 15 dated 25.02.2020 the approval/decision/resolution of the board was not mentioned, but surprisingly in note No. 13 dated 25.02.2020 of a separate Nothi it is stated that the board had given consent to retiring the petitioner with benefit. It further appears from note No. 12 of the same note sheets that those were placed before the Managing Director and CEO on 25.02.2020. The impugned order was issued on 25.02.2020. So, when did the board of directors decide the matter and gave consent to the same? Is it on 25.02.2020? What is the number of the board meeting? Where are the minutes of the meeting? The respondents could not give any answer to these questions. No decision of the board was placed before us. We have examined the personal file of the petitioner and the connected file provided by the Biman. We have not found any decision of the board. Mr. Dolon submits that Note No. 13 is after thought and was created to justify the malafide action of the Managing Director and CEO of the Biman. The impugned order does not mention any decision of the Board of directors of the Biman, whereas, it is already noted that in the matter of removal from the service, the Biman follows article 59(b) of its articles of association and in the respective office orders reference of the decision of the board is mentioned. In the circumstances, the respondents are not allowed to rely on the case of Md. Yousuf Haroon on the basis of the principle of approbation and reprobation. ...Md. Mominul Islam Vs. Bangladesh & ors, (Civil), 17 SCOB [2023] HCD 108 ....View Full Judgment

Burden of proof:
When a trade mark is register the presumption would be that it is for use as such. If anyone contents that the registration was not bonafide to use that trade mark then he must show that what other purpose the registration was done. The burden of proving the facts is on the person who seeks to have the trade mark removed from the register. .....Danish Foods Ltd Vs. Rani Food Industries Ltd & anr, (Spl. Statutory 19 SCOB [2024] HCD 104
There leaves no doubt or dispute that the registration of the trade mark confers a valuable right. The person in whose name the trade mark has been registered may take action against any person have passing of the goods. The registered trade mark confers an exclusive right of use of the trade mark in relation to the goods in which a trade mark is registered. As a person obtained a right on and from the date of registration, he can ordinarily to be deprived of his right only if it is seen that application was not a bonafide one but if it obtained for bonafide use he may not be fastened with any liability owing to non user on the part of the criticizer. .....Danish Foods Ltd Vs. Rani Food Industries Ltd & anr, (Spl. Statutory) 19 SCOB [2024] HCD 104 ....View Full Judgment

Admissibility of evidence; Cross-examination; Money Suit;
In absence of cross-examination, mere examination-in-chief cannot be admitted as evidence when the defendants cannot get any opportunity to test the veracity of such testimony as well as the documents so have been produced and exhibited by the plaintiff-witness. In essence, the evidence ended in chief has got no evidentiary value at all. .....Reliance Insurance Ltd. Vs. Phoneix Fin. & Invest. Ltd & ors, (Civil), 19 SCOB[2024] HCD 112 ....View Full Judgment

No doubt, a pleader stands on the same footing in regard to his authority to act on behalf of his clients. There is inherent in the position of counsel an implied authority to do all that is expedient, proper and necessary for the conduct of the suit and the settlement of disputes. This power, however, must be exercised bonefide and for the benefit of his client. It is prudent and proper to consult his client and take his consent if there is time and opportunity. He should not act on implied authority except when warranted by exigency of circumstances and a signature of the party cannot be obtained without under delay. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172 ....View Full Judgment

The Court must satisfy itself by taking evidence or on affidavits or otherwise that the agreement is lawful:
The Court must satisfy itself about the terms of the agreement. The Court must be satisfied that the agreement is lawful and it can pass a decree by it. The Court should also consider whether such a decree can be enforced against all the parties to the compromise. A Court passing a compromise decree performs a judicial act and not a ministerial work. Therefore, the Court must satisfy itself by taking evidence or on affidavits or otherwise that the agreement is lawful. If the compromise is not lawful, an order recording the compromise can be recalled by the Court. In case of any dispute between the parties to the compromise, the Court must inquire into and decide whether there has been a lawful compromise in terms of which the decree should be passed. The Court in recording compromise should not act casually. Where it is alleged by one party that a compromise has not been entered into or is not lawful, the Court must decide that question. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172 ....View Full Judgment

‘In writing’ serves as a crucial jurisprudential tenet, offering a measure of certainty and accountability in legal proceedings and contractual relationships:
In the realm of legal nomenclature, the term ‘in writing’ possesses a nuanced significance that denotes the requirement for a documented, tangible expression of information, typically through the medium of the written word, in order to establish the veracity and enforceability of a legal agreement, communication, or provision. This requirement is often mandated by statutes, contracts, or judicial rules, necessitating that the content in question be meticulously recorded on a durable and comprehensible medium, affording parties involved a clear and reliable record of their intentions and obligations. Consequently, ‘in writing’ serves as a crucial jurisprudential tenet, offering a measure of certainty and accountability in legal proceedings and contractual relationships, while adhering to the principles of transparency and due process in the administration of justice. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172
Mutual assent simply means that there is an agreement reached by both parties on all aspects of the contract's terms and conditions. In summary, these requirements ensure that contracts are properly formed with clarity on obligations expected from each participant in business dealings involving procurement matters. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172
The compromise should be reduced in writing and signed by them. They must depose on oath before the Court supporting the terms laid down in the solenama and upon receiving the solenama the Court shall consider the deposition and scrutinize the record to find out whether the terms and conditions settled therein are fair and legal and if satisfied, would pass a decree based on the solenama. If the parties authorized their engaged lawyers to compromise the suit or appeal, in that case, written authority should be given by the respective parties to their appointed lawyers. In that case, the lawyers are empowered to file solenama on behalf of their clients. The statements of the lawyers should be recorded on oath by the Court concerned and it must be read over and explained to them and accepted by the lawyer to be correct. Then the Court accepts the same upon observing the legal formalities. .....Sannyashi Mondal Vs. Nirmol Chandra Mondol & ors, (Civil), 19 SCOB [2024] HCD 172 ....View Full Judgment

Paragraph 24 of 71 DLR (AD) 319 is a per incuriam decision: We are of the view that the part of the judgment reported in 71 DLR (AD) 319 particularly in paragraph 24 regarding maintainability of the writ petition was passed without considering the latest provision of law and, as such, the part of the said judgment regarding maintainability of the writ petition filed by a retired public servant is a per incuriam decision. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11 ....View Full Judgment

Any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam:
Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11 ....View Full Judgment