Act/Law wise: Judgment of Supreme Court of Bangladesh (HCD)



Constitution of Bangladesh, 1972
Section/Order/ Article/Rule/ Regulation Head Note Parties Name Reference/Citation
Article 2A

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 2A

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 2A

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 2A

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 2A

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 8, 10, 27

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

Golam Md. Faroque Uddin & ors Vs. Bangladesh & ors 8 SCOB [2016] HCD 67
Article 12

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 20(1), 27

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

Md. Nur Hossain & ors. Vs. Bangladesh & ors. 10 SCOB [2018] HCD 299
Article 20 (2)

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

M. Asafuddowlah Vs. Bangladesh 15 SCOB [2021] HCD 1
Article 20 (2), 88

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

M. Asafuddowlah Vs. Bangladesh 15 SCOB [2021] HCD 1
Articles 27, 31 and 40

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

M/S BHIS Apparels Limited represented by its Managing Director, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, BTI Celebration Point, Bangladesh and others 2019 ALR (HCD) Online 302
Article 27, 31 and 40

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

Md. Nur Alam Chowkider 19 and others-Vs.- Bangladesh, represented by the Secretary, Ministry of Shipping, Bangladesh Secretariat, Ramna, Dhaka 6 and others 2019 ALR (HCD) Online 352
Article 27 and 31

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

Md Mahboob Murshed Vs. Bangladesh & ors 16 SCOB [2022] HCD 7
Articles 27, 40 and 102(1)

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

M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors. 13 SCOB [2020] HCD 1
Article 31

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

Dr. Nafia Farzana Chowdhury Vs. BSMMU & ors. 14 SCOB [2020] HCD 33
Article 31

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

M. Asafuddowlah Vs. Bangladesh 15 SCOB [2021] HCD 1
Article 31

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

Md Mahboob Murshed Vs. Bangladesh & ors 16 SCOB [2022] HCD 7
Article 32

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

Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) 16 SCOB [2022] HCD 84
Article 32

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

Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) 16 SCOB [2022] HCD 84
Article 32, 102

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

Mohammad Johirul Islam Vs. Government of Bangladesh and others (মোহাম্মদ জহিরুল ইসলাম বনাম বাংলাদেশ সরকার ও অন্যান্য) 16 SCOB [2022] HCD 84
Article 35

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

Mahmudur Rahman Vs Bangladesh & ors 9 SCOB [2017] HCD 119
Article 36

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

Ali Imam Vs. The Judge, Artha Rin Adalat & ors 19 SCOB [2024] HCD 76
Article 36

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

Ali Imam Vs. The Judge, Artha Rin Adalat & ors 19 SCOB [2024] HCD 76
Article 36

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

Ali Imam Vs. The Judge, Artha Rin Adalat & ors 19 SCOB [2024] HCD 76
Article 36

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

Kazi Mazharul Islam Vs. Bangladesh & ors. 4 SCOB [2015] HCD 115
Article 39

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

The State Vs. ACC and ors 17 SCOB [2023] HCD 40
Article 39

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

The State Vs. ACC and ors 17 SCOB [2023] HCD 40
Article 39

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

The State Vs. ACC and ors 17 SCOB [2023] HCD 40
Article 40

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

Eastern Money Changer Vs. Bangladesh Bank & ors 3 SCOB [2015] HCD 42
Article 41

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

Swairachar O Sampradaiyikata Protirodh Committee & ors Vs. Bangladesh & ors 19 SCOB [2024] HCD 41
Article 56(3), 57 and 58

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

Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors 19 SCOB [2024] HCD 66
Article 65

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 65

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 66(2)(d)

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Article 66(2)

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Article 95(2)(a)&(b)

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 95

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 95

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 95

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

Raghib Rauf Chowdhury Vs Bangladesh & ors 9 SCOB [2017] HCD 34
Article 102

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

Md. Mahbubur Rahman Vs. Bangladesh and Others 10 SCOB [2018] HCD 104
Article 102

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

Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors 17 SCOB [2023] HCD 137
Article 102

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

Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors 17 SCOB [2023] HCD 137
Article 102

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

Unilever Bd Ltd. Vs. Chairman, National Board of Revenue & ors 17 SCOB [2023] HCD 137
Article 102

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

Md. Shahin Ikbal Vs. General Certificate Officer & ors 17 SCOB [2023] HCD 168
Article 102

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

Samia Rahman Vs. Bangladesh and others 17 SCOB [2023] HCD 182
Article 102 (2)

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

Syed Saifuddin Kamal, son of SM Kamal Pasha, and another -Vs.- Bangladesh, represented by the Secretary, Ministry of Health, Bangladesh and others 2019 ALR (HCD) Online 212
Article 102

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

Mosarrof Hosen and anr Vs. Artha Rin Adalat-1, Dhaka & ors 19 SCOB [2024] HCD 126
Article 102 and 103

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

M/S BHIS Apparels Limited represented by its Managing Director, Bangladesh. -Vs.- Alliance for Bangladesh Workers Safety, Bangladesh and others 2019 ALR (HCD) Online 302
Article 102

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

Md. Abdul Mannan Miah. -Vs.- Bangladesh, represented by its Secretary, Ministry of Land and others 2019 ALR (HCD) Online 151
Article 102

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

Md. Shahinur Rahman, Advocate, Supreme Court of Bangladesh -Vs.- Government of Bangladesh and another 2019 ALR (HCD) Online 169
Article 102

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

Ministry of Housing and Public Works -Vs.- The Chairman, First Court of Settlement, Bangladesh Abandoned Buildings, Segunbagicha, Dhaka. and others 2019 ALR (HCD) Online 111
Article 102(5) read with Article 152

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

Tanvir Quader & anr Vs. Bangladesh & ors 19 SCOB [2024] HCD 27
Article 102(5) read with Article 152

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

Tanvir Quader & anr Vs. Bangladesh & ors 19 SCOB [2024] HCD 27
Article 102

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

L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors., 1 SCOB [2015] HCD 16
Article 102

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

L.B. Jute Mills Ltd Vs. Labour App. Tribunal & Ors. 1 SCOB [2015] HCD 16
Article 102

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

Md. Mahbubur Rahman Vs. Bangladesh & Ors. 1 SCOB [2015] HCD 18
Article 102(2)

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

Md. Hafizur Rahman Vs. Secretary, Ministry of Public Works and Ors. 1 SCOB [2015] HCD 73
Article 102(2)

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

Marrine Vegetable Oil Ltd & Anr Vs. Petrobangla 1 SCOB [2015] HCD 94
Article 102 (2)(a)(ii)

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

Abul Hossain Khan & anr Vs. Artha Rin Adalat, Barguna & Ors. 1 SCOB [2015] HCD 110
Article 102

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

Khademuzzaman Vs. Bangladesh & ors 2 SCOB [2015] HCD 62
Article 102

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

Msaharaf Hossain Vs. Dhaka City Corp. & others 2 SCOB [2015] HCD 70
Article 102

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

Mark Construction Ltd Vs. Chief Engineer, REB & ors 3 SCOB [2015] HCD 37
Article 102

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

Manabendra Chakrabarty & ors Vs. Bangladesh & others 3 SCOB [2015] HCD 52
Article 102

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

Md. Fazlul Hoque Vs. BIWTC 3 SCOB [2015] HCD 143
Article 102

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

Gazi A.K.M. Fazlul Haque & ors Vs. Privatization Commission & ors 4 SCOB[2015] HCD 42
Article 102

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

Energy Prima Ltd. Vs. Bangladesh & ors 8 SCOB [2016] HCD 84
Article 102

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

Moulana Md. Abdul Hakim Vs. Bangladesh & ors. 10 SCOB [2018] HCD 71
Article 102

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

Bangobir Kader Siddiqui, Bir Uttom Vs. CEC & ors. 10 SCOB [2018] HCD 84
Article,102(2)

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

Farhana Akhter Liza & ors. Vs. The Islamic University & ors. 10 SCOB [2018] HCD 92
Article 102

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

Md. Mahbubur Rahman Vs. Bangladesh and Others 10 SCOB [2018] HCD 104
Article 102

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

Children’s Charity Bangladesh Foundation (CCB Foundation) Vs Bangladesh & ors. 10 SCOB [2018] HCD 117
Article 102

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

Professor M. Samsul Alam Vs. Bangladesh & ors. 10 SCOB [2018] HCD 205
Article 102(1)

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

Md. Nur Hossain & ors. Vs. Bangladesh & ors. 10 SCOB [2018] HCD 299
Article 102(2)

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

Liberty Fashion Wears Limited Vs. Bangladesh Accord Foundation & ors. 12 SCOB[2019] HCD 1
Article 102(2)

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

Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors. 12 SCOB [2019] HCD 24
Article 102(2)

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

Dr. A. Y. M. Akramul Hoque Vs. Govt. of Bangladesh & ors. 12 SCOB [2019] HCD 24
Article 102(2), Article 66

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Article 102(2) (b) (ii)

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Article 102

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Article 102, 125

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
Articles 102(1)

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

M/S BHIS Apparels Limited Vs. Alliance for Bangladesh Workers Safety & ors. 13 SCOB [2020] HCD 1
Article 102

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

Abdur Rahman & ors. Vs. Judge (District Judge) Arpita Shampparrti Prattarpan Appellate Tribunal, Brahmanbaria & ors. 14 SCOB [2020] HCD 24
Article 102(2)(a)(i)

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

Spice Television Private Ltd Vs. Bangladesh & ors 16 SCOB [2022] HCD 1
Article 107(1)

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

Kazi Md. Kamrul Islam Vs. Registrar, Dep. of PDTM & ors 18 SCOB [2023] HCD 1
Article 111

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

State Vs. Abdullah @Titumir @Titu 18 SCOB [2023] HCD 20
Article 111

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

Shafiqul Islam and another Vs. Bangladesh & others 2 SCOB [2015] HCD 54
Article 117

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

Faizun Nabi Chowdhury -Vs.- The Judge Artharin Adalat No. 1, Dhaka and others 2019 ALR (HCD) Online 115
Article 123 (3) and 148(3)

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

Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors 19 SCOB [2024] HCD 66
Article 123 (3) and 148(3)

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

Taherul Islam Vs. Speaker, Bangladesh Jatiya Sangsad & ors 19 SCOB [2024] HCD 66
Article 125

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

Shakwat Hossain Bhuiyan Vs.Bangladesh & ors. 12 SCOB [2019] HCD 39
article 143 (1) (c)

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

Sufia Bewa and ors Vs. Md. Aminul Islam and ors 19 SCOB [2024] HCD 85
Article 152

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

Pruesiau Aug Marma & anr. Vs. Aungmra Shang Marma & anr. 14 SCOB [2020] HCD 133