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 |