Constitution of Bangladesh | Case Reference

Constitution of Bangladesh, 1972 

Articles 1 and 19 under part-2 29(1) read with Article 27, 31 and 40-সরকারী প্রাথমিক বিদ্যালয়ে দপ্তরী কাম প্রহরী পদে আউট সোসিয়ের মাধ্যমে জনবল নিয়োগের নীতিমালা-২০১২ is set aside.

As all the petitioners have been serving in their respect post for more than 3 (three) years, they have legitimate expectation that they would be regularized in their respective posts. Under such circumstances, they are eligible and entitled to regularize in the said post and the authority shall absorb the petitioners in the revenue set up as all other posts of the government primary school are under revenue set up The High Court Division finds that as all the petitioners have been serving in their respect post for more than 3 (three) years. they have legitimate expectation that they would be regularized in their respective posts. Under such circumstances, they are eligible and entitled to regularize in the said post and the authority, shall absorb the petitioners in the revenue set up as all other posts of the government primary school are under revenue set up. Considering the facts and circumstances, the High Court Division is of the view that the impugned Nitimala is not compatible with the existing provisions of law and the Constitution of the People's Republic of Bangladesh. As such, the impugned Nitimala is liable to be set aside. In the result, these Rules are made absolute and the "সরকারী প্রাথমিক বিদ্যালয়ে দপ্তরী কাম প্রহরী পদে। আউট সোর্সিংয়ের মাধ্যমে জনবল নিয়োগের নীতিমালা- ২০১২ is hereby set aside. The respondents are directed to frame rules and regulation for the post of সন্তরী and/or Night Guard for the government primary school and create two separate post, one for দপ্তরী and another for Night Guard if necessary, in accordance with the existing provision of law and the Constitution of the People's Republic of Bangladesh. As the petitioners have already been serving for more than 3 (three) years they should be regularized under revenue set-up in their respective post if they have requisite qualification in accordance with law without considering their age limit within 6 (six) months from the date of receipt of this order. However, there is no order as to costs. Abdul Hakim Chowdhury and others Vs. Bangladesh represented by the Secretary, Ministry of Primary and Mass Education, Secretariat, Dhaka (Spl. Original) 16 ALR (HCD) 291-299

Constitution of Bangladesh

অনুচ্ছেদ ৭(১)-অ্যাপিলাট ট্রাব্যুনালের বিচারক নিয়োগ প্রদান না করে জনগণের সাথে অমানবিক, নিষ্ঠুর, এবং ক্ষমার অযোগ্য আচরণ করেছেন। অনতিবিলম্বে সংশ্লিষ্ট সকল দায়িত্বপ্রাপ্ত মন্ত্রী এবং সচিব হতে লিখিত আকারে এতদ্বিষয়ে তাদের কৈফিয়ত বর্তমান মন্ত্রী এবং সচিব গ্রহণ করে প্রয়োজনীয় ব্যবস্থা জনগণের পক্ষে গ্রহণ করবেন।

হাইকোর্ট বিভাগ বলেন যে, ভূমি মন্ত্রণালয় কর্তৃক ২০০৪ থেকে ২০১৯ সাল পর্যন্ত তথা দীর্ঘ ১৫ (পনের) বৎসর আপিল ট্রাইব্যুনাল প্রতিষ্ঠা করতে না পারার কারণে লক্ষ লক্ষ জনগণ চরম এবং সীমাহীন দুর্ভোগে নিমজ্জিত হয়। যেখানে জাতির পিতা সারা জীবন সংগ্রাম করেছেন সাধারণ জনগণকে হয়রানীমুক্ত বিচার প্রদানের জনা। যেখানে জাতির জনক যুদ্ধ বিশ্বস্ত একটি দেশের দায়িত্ব প্রাপ্ত হয়ে জাতীয় সকল গুরুত্বপূর্ণ কর্মকান্ডের পাশাপাশি শাসনতন্ত্র তথা সংবিধানের মত গুরুত্বপূর্ণ আইন ৯ (নয়) মাস সময়ের মধ্যে প্রনয়ণ করেছেন। সেখানে ১৫ (পনের) বৎসরের অধিক কাল যাবৎ একটি 'এক পাতার' প্রজ্ঞাপন প্রকাশ করতে না পারা ভূমি মন্ত্রণালয়ের সংশ্লিষ্ট মন্ত্রী এবং সচিবের চরম ব্যর্থতা। সরকার নিজের আইন নিজে যথাযথ এবং দ্রুততম সময়ের মধ্যে বাস্তবায়ন করবেন এটাই সকলের কামা। সাধারণ জনগণ যাদের জন্য দীর্ঘ ১৫ (পনের) বৎসর এ ভোগান্তি ভোগ করল, তাদের অবশ্যই জবাবহিদি করতে হবে, দাড়াতে হবে জনগণের কাঠগড়ায়। সংবিধানের প্রস্তাবনার ৩য় প্যারায় বলা হয়েছে যে, রাষ্ট্রের অন্যতম মূল লক্ষা হইবে গণতান্ত্রিক পদ্ধতিতে এমন এক শোষণমুক্ত সমাজতান্ত্রিক সমাজের প্রতিষ্ঠা- যেখানে সকল নাগরিকের জন্য আইনের শাসন, মৌলিক মানবাধিকার এবং রাজনৈতিক, অর্থনৈতিক ও সামাজিক সাম্য, স্বাধীনতা ও সুবিচার নিশ্চিত হবে। সংবিধানের অনুচ্ছেদ ৭(১) মোতাবেক এদেশের সকল ক্ষমতার মালিক জনগণ। সেই মালিককে তথা জনগণকে ২০০৪ সাল থেকে দীর্ঘ ১৫ (পনের) বৎসর যাবৎ হয়রানী করে চলেছে ভূমি মন্ত্রণালয়। বিগত ১৫ (পনের) বৎসর যাবৎ ভূমি মন্ত্রণালয় এদেশের মালিক তথা জনগণকে তার আইনসম্মতভাবে প্রাপ্ত অধিকার থেকে তথা আপিলাট ট্রাইব্যুনালে আপিল মামলা দায়েরের আাধিকার থেকে বঞ্চিত করে চলেছে। ফলে জনগণের মৌলিক মানবাধিকার যেমনি লংঘিত হচ্ছে তেমনি জনগণ সুবিচার থেকে বঞ্চিত হচ্ছে। ভূমি মন্ত্রণালয়ের সংশ্লিষ্ট সময়ের দায়িত্বপ্রাপ্ত মন্ত্রী এবং সচিব অ্যাপিলাট ট্রাব্যুনালের বিচারক নিয়োগ প্রদান না করে জনগণের সাথে অমানবিক, নিষ্ঠুর, এবং ক্ষমার অযোগা আচরণ করেছেন। অনতিবিলম্বে সংশ্লিষ্ট সকল দায়িতপ্রাপ্ত মন্ত্রী এবং সচিব হতে লিখিত আকারে এতদবিষয়ে তাদের কৈফিয়ত বর্তমান মন্ত্রী এবং সচিব গ্রহণ করে প্রয়োজনীয় ব্যবস্থা জনগণের পক্ষে গ্রহণ করবেন। সার্বিক আলোচনা এবং পর্যালোচনায় অত্র স্যু-ম্যুটো কলটি চূড়ান্ত হওয়ার যোগা। অতএব, আদেশ হয় যে, অত্র স্ব-উদ্যোগ (Suo- Moto) রুলটি বিনা খরচায় চূড়ান্ত করা হলো। অত্র রায় ও আদেশের অনুলিপি প্রাপ্তির ৯০ (নব্বই) দিনের মধ্যে "ল্যান্ড সার্ভে আপিলাট ট্রাইব্যুনাল গঠন করে তৎমর্মে হলফনামা সম্পাদন করে অত্র আদালতকে অবহিত করায় জনা সচিব, ভূমি মন্ত্রণালয়কে নির্দেশ প্রদান করা হলো। অস্ত্র রীট মোকদ্দমাটি একটি চলমান আদেশ (Continuing Mandamus) হিসেবে অব্যাহত থাকবে। রাষ্ট্র-বনাম- সচিব, তুমি মন্ত্রণালয়, বাংলাদেশ সচিবালয়, ঢাকা ও অন্যান্য (Spl. Original) 18 ALR (HCD) 190-196

বাংলাদেশ সংবিধান

অনুচ্ছেদ ৭(১)

State Acquisition and Tenancy Act [XXVIII of 1951]

Chapter XVIIA Hhw Section 145A- 1451-সংবিধানের প্রস্তাবনার ৩য় প্যারায় বলা হয়েছে যে, রাষ্ট্রের অন্যতম মূল লক্ষ্য হইবে গণতান্ত্রিক পদ্ধতিতে এমন এক শোষণমুক্ত সমাজতান্ত্রিক সমাজের প্রতিষ্ঠা- যেখানে সকল নাগরিকের জন্য আইনের শাসন, মৌলিক মানবাধিকার এবং রাজনৈতিক, অর্থনৈতিক ও সামাজিক সাম্য, স্বাধীনতা ও সুবিচার নিশ্চিত হবে। সংবিধানের অনুচ্ছেদ ৭ (১) মোতাবেক এদেশের সকল ক্ষমতার মালিক জনগণ। সেই মালিককে তথা জনগণকে ২০০৪ সাল থেকে দীর্ঘ ১৫ (পনের) বৎসর যাবৎ হয়রানী করে চলেছে ভূমি মন্ত্রণালয়।

ভূমি মন্ত্রণালয় কর্তৃক ২০০৪ থেকে ২০১৯ সাল পর্যন্ত তথা দীর্ঘ ১৫ (পনের) বৎসর আপিল ট্রাইব্যুনাল প্রতিষ্ঠা করতে না পারার কারণে লক্ষ লক্ষ জনগণ চরম এবং সীমাহীন দুর্ভোগে নিমজ্জিত হয়। যেখানে জাতির পিতা সারা জীবন সংগ্রাম করেছেন সাধারণ জনগণকে হয়রানীমুক্ত বিচার প্রদানের জনা। যেখানে জাতির জনক যুদ্ধ বিশ্বস্ত একটি দেশের দায়িত্ব প্রাপ্ত হয়ে জাতীয় সকল গুরুত্বপূর্ণ কর্মকান্ডের পাশাপাশি শাসনতন্ত্র তথা সংবিধানের মত গুরুত্বপূর্ণ আইন ৯ (নয়) মাস সময়ের মধো প্রনয়ণ করেছেন। সেখানে ১৫ (পনের) বৎসরের অধিক কাল যাবং একটি 'এক পাতার' প্রজ্ঞাপন প্রকাশ করতে না পারা ভূমি মন্ত্রণালয়ের সংশ্লিষ্ট মন্ত্রী এবং সচিবের চরম ব্যর্থতা। সরকার নিজের আইন নিজে যথাযথ এবং দ্রুততম সময়ের মধ্যে বাস্তবায়ন করবেন এটাই সকলের কামা। সাধারণ জনগণ যাদের জনা দীর্ঘ ১৫ (পনের) বৎসর এ ভোগাজি ভোগ করল, তাদের অবশ্যই জবাবহিদি করতে হবে দাড়াতে হবে জনগণের কাঠগড়ায়। সংবিধানের প্রড়াবনার ৩য় প্যারায় বলা হয়েছে যে, রাষ্ট্রের অন্যতম মূল লক্ষ্য হইবে গণতান্ত্রিক পদ্ধতিতে এমন এক শোষণমুক্ত সমাজতান্ত্রিক সমাজের প্রতিষ্ঠা- যেখানে সকল নাগরিকের জনা আইনের শাসন, মৌলিক মানবাধিকার এবং রাজনৈতিক, অর্থনৈতিক ও সামাজিক সাম্য, স্বাধীনতা ও সুবিচার নিশ্চিত হবে। সংবিধানের অনুচ্ছেদ ৭(১) মোতাবেক এদেশের সকল ক্ষমতার মালিক জনগণ। সেই মালিককে তথা জনগণকে ২০০৪ সাল থেকে দীর্ঘ ১৫ (পনের) বৎসর যাবৎ হয়রানী করে চলেছে ভূমি মন্ত্রণালয়। বিগত ১৫ (পনের) বৎসর যাবৎ ভূমি মন্ত্রণালয় এদেশের মালিক তথা জনগণকে তার আইনসম্মতভাবে প্রাপ্ত অধিকার থেকে তথা অ্যাপিলাট ট্রাইব্যুনালে আপিল মামলা দায়েরের অধিকার থেকে বঞ্চিত করে চলেছে। ফলে জনগণের মৌলিক মানবাধিকার যেমনি লংঘিত হচ্ছে তেমনি জনগণ সুবিচার থেকে বঞ্চিত হচ্ছে। ভূমি মন্ত্রণালয়ের সংশ্লিষ্ট সময়ের দায়িত্বপ্রাপ্ত মন্ত্রী এবং সচিব অ্যাপিলাট ট্রাব্যুনালের বিচারক নিয়োগ প্রদান না করে জনগণের সাথে অমানবিক, নিষ্ঠুর, এবং ক্ষমার অযোগা আচরন করেছেন। অনতিবিলম্বে সংশ্লিষ্ট সকল দায়িত্বপ্রাপ্ত মন্ত্রী এবং সচিব হতে লিখিত আকারে এতদবিষয়ে তাদের কৈফিয়ত বর্তমান মন্ত্রী এবং সচিব গ্রহণ করে প্রয়োজনীয় বাবস্থা জনগণের পক্ষে গ্রহণ করবেন। সার্বিক আলোচনা এবং পর্যালোচনায় অত্র স্যু-মু্যুটো কুলটি চূড়ান্ত হওয়ার যোগা। অতএব, আদেশ হয় যে, অত্র স্ব-উদ্যোগ (Suo- Moto) কলটি বিনা খরচায় চূড়ান্ত করা হলো। অত্র রায় ও আদেশের অনুলিপি প্রাপ্তির ১০ (নব্বই) দিনের মধ্যে "ল্যান্ড সার্ভে আপিলাট ট্রাইব্যুনাল" গঠন করে তৎমর্মে হলফনামা সম্পাদন করে অত্র আদালতকে অবহিত করার জনা সচিব, ভূমি মন্ত্রণালয়কে নির্দেশ প্রদান করা হলো। অত্র রীট মোকদ্দমাটি একটি চলমান আদেশ (Continuing Mandamus) হিসেবে অব্যাহত থাকবে। রাষ্ট্র বনাম- সচিব, ভূমি মন্ত্রণালয়, বাংলাদেশ সচিবালয়, ঢাা ও অন্যানা (Spl. Original) 19 ALR (HCD) 351-357

Constitution of Bangladesh

Article 7 (2) read with

Artha Rin Adalat Ain [VIII of 2003]

Section 2(Ka)(18) Article 7(2) of the Constitution provides that any law inconsistence with any provision of the Constitution shall be, to the extent of inconsistency, void.

A law of a foreign country is not enacted by Parliament of Bangladesh, neither is made by any Act of Parliament of Bangladesh. In view of this, stretching the meaning of "law" as happens in section 2(K) (18) of the Artha Rin Adalat Act, 2003 shall also be against public policy.

No court can take cognizance of any law of a foreign country, rather the foreign law is treated as question of fact, which always requires to be proved by witness deposition.

A court of law being created under law of Bangladesh shall take judicial notice only of a law having force of law in Bangladesh.

The High Court Division further held that a law must be enacted by the Parliament in accordance with provisions of the Constitution, or any other instrument to have legislative force, i.e., to have force of law must be made by the Act of Parliament. So a bank to come within the purview section 2(K)(18) of the Artha Rin Adalat Ain, 2003 must be established by an Act of Parliament. If the meaning of word "law" as happens in section 2(K)(18) of the said Act of 2003 is stretched to include a foreign law, then it shall be inconsistent to the Constitution in view of Article 7(2) of the Constitution, because a law of a foreign country is not enacted by Parliament of Bangladesh, neither is made by any Act of Parliament of Bangladesh. In view of this, stretching the meaning of "law" as happens in section 2(K)(18) of the Artha Rin Adalat Act, 2003 shall also be against public policy. On the plea of public policy, no court can take cognizance of any law of a foreign country, rather the foreign law is treated as question of fact, which always requires to be proved by witness deposition. Therefore, the bank established under foreign law cannot be treated as a financial institution established under law within the meaning of section 2(K)(18) of the said Act of 2003. A court of law in Bangladesh is created under the Constitution or an Act of Parliament. Hence, a court of law being created under law of Bangladesh shall take judicial notice only of a law having force of law in Bangladesh. The Court below went beyond its jurisdiction to consider a law of foreign country as having force of law in Bangladesh within the meaning of section 2(K)(18) of the said Act of 2003. Therefore, the High Court Division finds that the decision of the Court below is seriously erroneous, which cannot be approved of in view of the Constitution of Bangladesh as well as public policy. In view of the discussion made above, the High Court Division is of the view that the Rule in the instant Civil Revision has got merit. Accordingly, the Rule is made absolute. Mr. Tipu Munshi -Vs- CFC Stanbic Bank Limited, a private limited company having its registered office at CFC Stanbic Bank Limited (Civil) 18 ALR (HCD) 39-46

Article 7-This article clearly casts an obli- gation upon the members of the Bar to resist any attempt to appoint a person as a judge on political consideration. This duty was conferred upon the members of the Bar to safeguard, protect and defend the Constitution and to maintain its supremacy as the embodiment of the will of the people. State vs Chief Editor, Manabjamin 57 DLR 359.

Article 7-Like the lawyers, equally the citizens also have their Constitutional respon- sibility to ensure the maintenance of the Consti- tutional norms in the matter of appointment of judges of this Court. State vs Chief Editor Manabjamin 57 DLR 359.

Article 7- Article 7 ensures the supremacy of the constitution. It may be reiterated that the Supreme Court is not only an independent organ of the State, but it also acts as the guardian of the constitution. It is the Supreme Court that ensures that any law that which is inconsistent with the constitution will be declared void in exercise of the judicial review by reference to articles 7(2) and 26.  (Surendra Kumar Sinha, CJ). Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

Articles 14 and 16-Regularization is not itself a mode of recruitment and any act in the exercise of executive power of the government can not override rules framed under the Constitution.

The Appellate Division taking in to consideration the case State of Jammu and Kashmir Vs. District Bar Association reported in (2017) 3 SCC 410 Supreme Court of India observed that regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left upon to courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. In a democratic set up like ours, which is governed by rule of law, the supremacy of law is to be acknowledged and absence or arbitrariness has been consistently described as essence of rule of law. The unquestionable authority is always subject to the authority of the Constitution. The Director General, represented by Bangladesh Rural Development Board (BRDB), Dhaka -Vs.- Md. Rabeul Karim and others (Civil) 18 ALR (AD) 189-199

Articles 14 and 16(1)- The insertion of clause 7(2) of the Nitimala dated 26.01.2015 for appointing Daptori-Cum- Prohori in Government Primary Schools is violative of Articles 27 and 29 of the Constitution, it also runs contrary to the principle of legitimate expectation.

The High Court Division observed that the Supreme Court of India, in the case of Madan Mohan Sharma v. State of Rajasthan, reported in AIR 2008 SC 1657, dealt with a similar issue where the Rules relating to appointment of Teachers was changed subsequent to publication of the advertisement for their appointment by the Zilla Parishad in Rajasthan, India. The Court held: "Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be on the basis of the criterion which has been made subsequently." In that case, the Court further held: "Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended." In the case of State of Mysore v. S.R. Jayaram, reported in AIR 1968 SC 346, the Supreme Court of India was called upon to examine the legality of Rule 9(2) of the Mysore Recruitment of Gazetted Probationers Rules, 1959, which reads as under "Appointment of Probationers (1) Subject to the rules regarding reservation of posts for backward classes contained in Government Orders Nos. GAD 26 ORR 59, dated the 13th May, 1959, and No. GAD 32 ORR 59, dated the 18 July 1959, and the provisions of sub-rule (2), the candidates successful in the examination whose names are published under Rule 8 shall be appointed as probationers to Class I posts in the order of merit, and thereafter to Class Il posts in the order of merit. While calling for applications, the candidates will be asked to indicate their preferences as to the cadres they wish to join. The Government, however, reserves the right of appointing to any particular cadre, any candidate whom it considers to be more suitable for such cadre." In striking down the aforesaid provision of Rule 9(2) "unconstitutional", the Supreme Court held: "It follows that under the last part of Rule 9(2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference." The Court further held: "The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9(2) seek to achieve this aim. The last part of Rule 9(2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though R. 9(1) requires the appointment of successful candidates to Class I post in the order of merit and thereafter to Class II posts in the order of merit, Rule 9(1) is subject to Rule 9(2), and under the cover of Rule 9(2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down." The High Court Division has perused the judgment passed by the High Court Division in Writ Petition No. 3458 of 2015. It appears that the self- same issues i.e. the provision relating to the amendment of clause 7(2) was challenged in earlier Writ Petition, wherein the Rule was made absolute. In the premises noted above, the High Court Division finds no reason, legal or otherwise, to take a different view in the present case. In the result, the Rule is made absolute. Kowser Mia-Vs. Ministry of Primary and Mass Education, Bangladesh Secretariat, Dhaka and others. (Spl. Original) 21 ALR (HCD) 254-257

Article 15 & 20, 104

But what is "complete justice"? The words do not yield to a precise defini- tion. Cases vary, situations vary and the scale and parametre of complete justice also vary. Sometimes it may be justices according to law, sometimes it may be justice according to fairness, equity and good conscience, sometimes it may be in the nature of arbitration, sometimes it may be justice tempered with mercy, sometimes it may be pure common- sense, sometimes it may be the inference of an ordinary reasonable man and so on. National Board of Revenue Dhaka vs Nasrin Banu (5) (Mustafa Kamal J)(Civil) 2ADC 659

Articles 18(1), 31 and 32- No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life. Government of Bangladesh =VS= Professor Nurul Islam, [4 LM (AD) 125]

Article 18A read with

Bangladesh Environment Conservation Act, 1995

Section 5 read with

Bangladesh Conservation Rules, 1997

Environment

Rule 3(1) If the Government is satisfied that, an area is in an environmentally critical situation or is threatened to be in such situation, the Government may declare such area as an ECA.

The Appellate Division observed that the Act of 1995 in its section 5(1) contains provisions regarding declaration of ECA by the DG of the Department of Environment (DoE), which provides that if the Government is satisfied that, an area is in an environmentally critical situation or is threatened to be in such situation, the Government may declare such area as an ECA. Sub-section (2) also points out that, the Government shall under sub-section (1), specify the activities or processes that cannot be initiated or continued in an ECA. The Act also confers power to DoE to order corrective steps to be taken by any person believed to be responsible directly or indi rectly, for causing harm to the ecosystem. Again, Rule 3(1) of the Rules of 1997 states that, the Government shall take the following factors into consideration while declaring any area as ECA under section 5(1) of the Act: (a) human habitat; (b) ancient monument; (c) archeological site; (d) forest sanctuary, (e) national park; (1) game reserve; (g) wild animals habitat; (h) wetland; (i) mangrove; (j) forest area, (k) bio-diversity of the relevant area; and (1) Other relevant factors. Furthermore, Article 18A of the Bangladesh Constitution contains provisions regarding the protection and improvement of envi- ronment and biodiversity and states that, the State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio- diversity, wetlands, forests and wild life for the present and future citizens. Therefore, the lease deed dated 26.01.2003 in favour of Ahsan Habib, the vendor of the writ- petitioners, for construction of hotel, was illegal from its very inception in view of Gazette Notification dated 19.04.1999 made under section 5 of the Bangladesh Environment Conservation Act, 1995. Government of the People's Republic of Bangladesh, represented by the Secretary. Ministry of Land, Bangladesh Secretary. Ramna, Dhaka and others -Vs.- Mohammad Mushfa-qur Rahman and another (Civil) 18 ALR (AD) 114-122

Articles 19(3)and 28(1)(2)-Formal equality is explicitly enshrined in the Constitution of Bangladesh and various articles reiterate the principle of non-discrimination based on sex, caste, race and other motives. Shishubar Dhali vs Chitta Ranjan Mondol (Civil) 75 DLR (AD) 125

Article 21(a), 66 - Bangladesh Election Commission to show cause as to why they should not be directed to know the information from the intending candidates for the election to the parliament, Md. Abu Safa vs. Abdul Momen Chowdhury(Syed .J.R. Mudassir Husain CJ) (Civil) 5 ADC 64

Articles 22, 94(4), 116A and 147- The independence of the judiciary is the foundation stone of the constitution- The independence of the judiciary is the foundation stone of the constitution and as contemplated by article 22, it is one of the fundamental principles of State policy. The significance of an independent judiciary, free from the interference of other two organs of the government as embodied in article 22 has been emphasized in articles 94(4), 116A and 147 of the constitution. There has been a historic struggle by the people of this country for independence of judiciary, to uphold the supremacy of the constitution and to protect the citizens from violation of their fundamental rights and from exercise of arbitrary power. In Anwar Hossain (supra) this court observed that "Democracy, Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary, Fundamental Rights are basic structures of the Constitution" (emphasis supplied). Therefore, the constitutional principle of independence of judiciary precludes any kind of partisan exercise of power by the Parliament in relation to the judiciary, in particular, the power of the Parliament to remove the Judges of the Supreme Court. (Surendra Kumar Sinha, CJ). Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

 Article 24, 102 (1) (2) 

Any person aggrieved" occurring in Article 102 of the Constitution have to be read in the context of the entire Constitution, not is lately. Article 102 is an institutional vehicle for ventilating the rights and duties under the Constitution and not a mere procedural device. Dr. Mohiuddin Farooque vs Bangladesh (Mustafa Kamal J(Civil) 3 ADC 529 

Article 26- The State shall not make any law inconsistent with any provisions of Part III of the Constitution, and any law so made shall, to the extent of such inconsistency, be void. The State -Vs- Ministry of law, Justice and others. (Spl. Original) 19 ALR (HCD) 166-176

Article 26-The State shall not make any law inconsistent with any provision of Part III of the Constitution, and any law so made shall, to the extent of such inconsistency, be void.

If the executive/ administrative authority of the Government or any statutory body takes any action beyond the law or arbitrarily or malafide, the court may also declare such action illegal and pass necessary directions. The High Court Division may also pass necessary directions to the concerned authorities to protect the biodiversity, ecological balance and environment of Bangladesh.

The High Court Division cannot direct the Parliament to enact or amend a law or declare any principle to be a part of our law.

The Appellate Division is of the view that the Court may express its opinion only for necessary amendment of a law,for placing the matter to the Parliamentas wellfollowing necessary procedures by the authority concerned. But it is entirely upon the Parliament to decide as to whether it would amend a law including "জাতীয় নদী রক্ষা কমিশন আইন ২০১৩" for "নদী দখলকে এবং নদী দূষণকে ফৌজদারী অপরাধ গণ্য করে এর কঠিন সাজা এবং বড় আকারের জরিমানা নির্ধারণ করতঃ", Nishat Jute Mills Limited -Vs. Human Rights and Peace for Bangladesh (HRPB) and others (Civil) 23 ALR (AD) 39

Constitution of Bangladesh

Articles 26(2), 31 and 93(2) read with Artha Rin Adalat Ain [VIII of 2003]

Sections 8(2) and 50-On the date of passing of the judgement by the Artha Rin Adalat the Ordinance was not in operation in view of the provision of Article 93(2) of the Constitution. The High Court Division then considered section 18 of the Amendment Ain, which is the savings clause and concluded as follows: Therefore, in the Amendment Ain, even if the Ordinance was not in existence in view of the provision of article 93(2) of the Constitution, the action taken under the Ordinance was given retrospective effect by the Parliament. The vires of section 18 of the Amendment Ain is not under challenge."

It appears to the Appellate Division that there was an apparent vacuum in the law when the Ordinance lapsed. However, the retrospectivity in the amending law filled up that vacuum. Hence, for all intents and purposes the law continued to exist. The amending law filling the vacuum, i.e. section 18, has not been challenged as being ultra vires. Before the Appellate Division the learned Counsel for the petitioners argued that there has been violation of Article 31 of the Constitution- to be treated in accordance with law. However, the Appellate Division finds that the amending law corrected any wrong that may have existed and that amending law has not been challenged under Article 26(2) of the Constitution. In view of the above, the Appellate Division does not find any illegality or impropriety in the reasoning of the High Court Division as given in the impugned judgement. The Appellate Division finds no merit in this civil petition for leave to appeal, which is accordingly dismissed. Gaffar Food Product Limited and others -Vs. Artha Rin Adalat. Khulna and another (Civil) 23 ALR (AD) 92

Constitution of Bangladesh

Articles 26, 27 and 29 The rule making authority under the proviso to Article 133 has power to give retrospective effect to the rules made by it. But this general Rule is subject to the exception that where the retrospective change of the Rules or framing of new Rules with retrospective effect contravenes independent Constitutional provisions, namely, Articles 26, 27 and 29 of the Constitution the person aggrieved may successfully challenge the same in writ jurisdiction.

The Appellate Division held that the rights or benefits acquired or earned by a person under the existing rules cannot be taken away by amendment with retrospective effect or by making new rules with retrospective effect pursuant to the proviso to Article 133 of the Constitution which affects vested rights. Therefore, we are of the view that there is no power to make a rule under the proviso to Art. 133 of the Constitution which affects the vested rights of a person or contravenes independent constitutional provisions or violates fundamental rights as enshrined in Articles 26, 27 and 29 of the Constitution. Moreover, retrospectivity will be arbitrary and unconstitutional if the date from which retrospective effect is given has no reasonable nexus with the provisions contained in the amending rules. In other words, rights or benefits (e.g. as to pay, seniority or right to be considered for promotion) which have been already accrued or earned under the existing Rules cannot be taken way by changing the Rules with retrospective effect or by making new Rules with retrospective effect. In view of the above discussions and findings the Appellate Division is of the view that the writ petitioners-respondents have acquired vested right under the Nitimala of 1998 to be considered for promotion to the post of Deputy Secretary and thereafter to the post of Joint Secretary. The petitioner government by framing the Bidhimala, 2002 cannot take away the vested rights of the respondents. The rule making authority under the proviso to Article 133 has power to give retrospective effect to the rules made by it. But this general Rule is subject to the exception that where the retrospective change of the Rules or framing of new Rules with retrospective effect contravenes independent Constitutional provisions, namely, Articles 26, 27 and 29 of the Constitution the person aggrieved may successfully challenge the same, Therefore, the High Court Division rightly held that the respondents' vested rights to be considered for promotion to the post of Deputy Secretary and thereafter Joint Secretary pursuant to the provisions of the Nitimala of 1998 cannot be taken away by the sub- sequent Bidhimala of 2002. There is no illegality in the impugned judgment and order passed by the High Court Division and as such no interference is called for by the Appellate Division. In the result, the leave petition is dismissed with the above observations. The writ respondents- petitioners are directed to consider the case of the writ petitioners-respondents for promotions to the post of Deputy Secretary and thereafter to the post of Joint Secretary within two months from the date of the receipt of a copy of this judgment and order. Government of Bangladesh and others -Vs.- Md. Ruhul Amin Munshi and another (Civil) 19 ALR (AD) 47-51

Article 27-The Constitution of Bangladesh is the solemn expression of the will of the people and the supreme law of the land. The principles of 'equality' before the law and 'equal protection' of the law are also incorporated in the Constitution as fundamental rights. Shishubar Dhali vs Chitta Ranjan Mondol (Civil) 75 DLR (AD) 125

Articles 27 and 51-Only the President of the Republic shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of his office. Government of Bangladesh vs Syed Fazle Elahi Obhi (Civil) 75 DLR (AD) 93

Article 27 - Technical Assistance Project Proposal ("TAPP") Clause 25 - The Petitioners Guards were discharged from their services after six months of completion of the TAPP. Given that fact alone, as is now not disputed by the Petitioners, the High Court Division finds no ground to consider now the Petitioners plea to be treated at par with and on a equal footing as the individuals holding the posts of Word Processors, Patrol Boat Operators/ Master Driver. There is consequentially found no ground to arrive at any finding on a violation Article 27 of the Constitution. In this regard, the Petitioners' case is found wholly to be a misconceived one.

Instead, as the facts attest to, the situation progresses here onwards with regard to the transfer only of Word Processors and Patrol Boat Operators/ Master Drivers to fourteen posts made available under the revenue budget. There is no indication, however, that the Petitioners were ever actually considered or proposed to be so similarly transferred. That notwithstanding, the Petitioners misleadingly and without further satisfactory explanation and elaboration have sought to construct a case of purported equal standing and treatment with the aforesaid claimants to the specific fourteen posts as do not cover the posts of Guards. Hence, the Petitioners' assertion that the treatment of those entitled to be transferred to the fourteen specific posts "included" also the claim of the Petitioners and that all executive action taken vis-à-vis the Word Processors and Patrol Boat Operators/ Master Drivers was also geared somehow "to transfer/regularise the posts of the Petitioners to the Revenue Budget with immediate effect in accordance with law" is found to be unsubstantiated and without legal merit. The High Court Division has in this regard found nothing on record to indicate that the Respondents ever took any active steps to so equate the position and status of the Petitioners Guards with those other employees or make any declaration on the Petitioners' entitlement to treatment at par with the claimants to those other posts. As the facts above further attest to, the High Court Division has followed too the fortunes of the claimants to the aforesaid fourteen posts thereafter, and at one point as deliberated upon before both divisions of the Supreme Court, itself. But the issues arising in that context were confined to and bore upon the claims of only those who sought a transfer to those very specific posts. There is no hint, even remotely, of the Petitioners Guards' claims and status being equated with those of the others either by the Executive or indeed the Supreme Court at any material time. Predicated on the above, the Petitioners' insistent stance and statements and assertions to the contrary in this Application are found to be at best misconstrued and misconceived and at worst misleading and highly deceptive. For reasons above stated the High Court Division, therefore, finds no merit in this Application and no substance in the Rule issued. Resultantly, the Rule is discharged. Md. Rezaul Karim and others -Vs- Bangladesh and others (Spl. Original) 21 ALR (HCD) 246-250

Constitution of Bangladesh

Article 27-The settled principle of law is that the writ petition is a summary proceeding which is to be disposed of on affidavit. Statement made in the writ petition is required to be controverted by filing affidavit-in-opposition. If any statement is not controverted by filing affidavit-in-opposition then the Court is to proceed as if such statement made in the writ petition has been admitted by the respondent.

In the administration of law, if the action of a public functionary is found to have been taken in disregard of the policy laid down by the law or it produces a discriminatory effect in violation of any provision of the law the action may be struck down not only as an ultra vires act, but also as an act violative of article 27 of the Constitution.

The High Court Division found that on the basis of an allegation made by respondent No. 9 against Most. Selina Akhter, Assistant Teacher, the authority formed committee and ultimately changed the date of joining of the writ petitioner inspite of the fact that the writ petitioner's date of joining is 22.03.2000. Even if the respondent authority did not pay any heed about the applications of the respondent No. 8, President of the Managing Committee and the writ petitioner in respect of modification of the said changed date of joining of the writ petitioner. This action of the respondents is clearly mala fide and discriminatory and as such requires to be struck down being violative of the Constitution. Monzuma Akter -Vs- Ministry of Primary and Mass Education, Bangladesh and others (Spl.Original) 21 ALR (HCD) 123-129

Constitution of Bangladesh.

Article 27-Gambling is an offence in the eye of law in this country and it is prohibited not only by the Public Gambling Act, 1867, but also by the relevant provisions of different Metropolitan Ordinances including Dhaka Metropolitan Police Ordinance, 1976 and Chittagong Metropolitan Police Ordinance, 1978.

Since the law has prohibited gambling for the poor and rich irrespective of their social status, the same has to be applied to both equally in order for keeping the activities of law enforcing agencies in line with the provisions of Article 27 of the Constitution of the People's Republic of Bangladesh.

Any games, the outcome of which predominantly depend on luck (except government authorized lottery, and not on skill, are prohibited games and as such the government and the law enforcing agencies concerned are obliged by the Constitution as well as the relevant laws of the land to take immediate actions against them for seizure of those instruments as well as preventing those games from taking place. Mohammad Samiul Huq and another. -Vs. Government of Bangladesh, represented by the Secreatry, Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka- 1000 and others. (Spl. Original) 18 ALR (HCD) 277-285

Constitution of Bangladesh

Article 27-The notion of equality before the law, as a subject of legal philosophy, is dependent on the integrity of the laws like the Regulations framed and implemented to that end.

The High Court Division to opine that the notion of equality before the law, as a subject of legal philosophy, is dependent on the integrity of the laws like the Regulations framed and implemented to that end. In the facts, it is the extent of the abstractness or the objectivity of the applicable law evident in the impugned sub-regulation that the High Court Division is asked to detect and decipher. That exercise, the High Court Division notes, is essential not only to find on the validity or otherwise of such impugned provision but also to determine the extent to which such abstractness is determinant and cornerstone of the rule of law and fair governance achieved though application of the the Regulations. Grameenphone Limited Vs. Government of Peoples Republic of Bangladesh and others (Spl. Original) 18 ALR (HCD) 6-13

Constitution of Bangladesh

Articles 27, 29, 133 and 140-Any appointment in the service of the appointment Republic violating the spirit of articles 27, 29, 133 and 140 of the Constitution is not only irregular but also illegal and that cannot be sustained in view of the constitutional provisions. Past practice is not always the best practice. If any illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. Any appointment made on a post in the service of the Republic ignoring the provisions articles 29, 133 or 140 of the Constitution and without issuing advertisement inviting applications from eligible candidates and without following a proper selection procedure where all eligible candidates get a fair chance to compete would violate the guarantee enshrined in the Constitution.

The Appellate Division held that it would be highly detrimental to the public interest to issue direction for wholesale transfer/ absorption/ regularisation of the employees of project/ adhoc/contract daily wagers in the revenue budget and thereby abrogate/stultify the opportunity of competition to younger generation comprising of more meritorious candidates who may be waiting for a chance to apply for direct recruitment. Obviously, the court should not want to sacrifice merit by showing undue sympathy for employees of the project/adhoc/daily wagers/contract workers who joined their service with full knowledge about their status, terms and conditions of their employment and the fact that they were not to be paid from Consolidated Fund. It is to be mentioned here that payment of money into and its withdrawal from the Consolidated Fund or Public Account is to be regulated by an Act of Parliament and if no such Act has been passed, by rules made by the President. The Government cannot make any expenditure without the sanction of Parliament. The position of law as it appears till today that the legislature has provided only one option to the employees of the development projects that they would get privilege of relaxation of age limit for participation in examination for getting employment in the posts of revenue budget, that is, "সমাপ্ত উন্নয়ন প্রকল্প হইতে রাজস্ব বাজেটের পদে নিয়োগের ক্ষেত্রে বয়স শিথিলকরণ বিধিমালা, ২০০৫". All such employees shall compete with other candidates who file application for appointment in the posts advertised, However, Mr. Mahbubey Alam produced some rules by which services of the em ployees of some projects were transferred to revenue budget. These are (১) প্রাথমিক ও গণশিক্ষা মন্ত্রণালয়ের উন্নয়ন প্রকল্পে নিয়োগপ্রাপ্ত কর্মকর্তা ও কর্মচারীরে রাজস্ব বাজেটের পদে নিয়মিতকরণ ও জ্যৈষ্ঠতা নির্ধারন বিধিমালা, ২০০৫। (২) কৃষি মন্ত্রণালয়ের আওতাধীন এই ২(ক) উপবিধিতে বর্ণিত যে কোন উন্নয়ন প্রকল্প হইতে রাজস্ব বাজেটে সৃষ্ট কারিগরি পদের পদধারীদের নিয়োগ/নিয়মিতকরণ ও জ্যেষ্ঠতা নির্ধারন (বিশেষ বিধান) বিধিমালা, ২০০৫; (৩) শিক্ষা মন্ত্রণালয়ের মাধ্যমিক ও উচ্চ শিক্ষা বিভাগের অধীনস্থ মাধ্যমিক ও উচ্চ শিক্ষা অধিদপ্তরের আওতাধীন Secondary Education Sector Improvement Project (SESIP) শীর্ষক উন্নয়ন প্রকল্প হইতে রাজস্ব বাজেটে স্থানান্তরিত পদের পদধারীদের নিয়মিতকরণ ও জ্যেষ্ঠতা নির্ধারন (বিশেষ বিধান) বিধিমালা, ২০১৮; and some other identical rules. The Director General, represented by Bangladesh Rural Development Board (BRDB), Dhaka-Vs. Md. Rabeul Karim and others (Civil) 18 ALR (AD) 189-199 

Constitution of Bangladesh

Articles 27 and 31 read with

Ansar Act, 1948

Sections 3 and 4 read with

Ansar Bahini Ain [III of 1995]

Section 50 read with

Ansar Bahini Rules, 1948

Rules 3, 9 and 17-Whether the writ petition is maintainable or not for enforcement of the fundamental rights of the petitioners even the petitioners are held to be in service of the republic.

The High Court Division held that as regards violation of petitioners fundamental rights to be treated equally and to be dealt with in accordance with law and only in accordance with law in view of the provisions under Articles 27 and 31 of the Constitution, the High Court Division is of the view that, even if for argument's sake the petitioners are held to be in the service of the republic, the writ petition is still maintainable for enforcement of their fundamental rights. Therefore, to hold the view that this writ petition is maintainable on that point, the High Court Division does not even need to agree or disagree with the decisions of the Division Bench of the High Court Division in the earlier two writ petitions, namely Writ Petition No. 789 of 1996 and Writ Petition No. 1727 of 1996. On that point, the High Court Division is of the view that, the High Court Division also does not need to agree or disagree with the decision of the judge of the lower Court in Title Suit No. 529 of 2009. Again, since the Rules in the earlier writ petitioners were discharged on another ground, the same will not act as res-judicata in the instant writ petition. Accordingly, the High Court Division hold that, this writ petition is maintainable for enforcement of the fundamental rights of the petitioners. Md. Ruhul Amin and 289 others -Vs.- Bangladesh and others. (Spl. Original) 16 ALR (HCD) 20-31

Constitution of Bangladesh

Articles 27, 29 and 31-As per the provisions of the Constitution respondents side cannot play duel role and cannot maintain duel standard to the Government employees or any other litigants who are similarly situated.

The High Court Division held that the Ministry of Finance is the proper authority on behalf of the Government to clarify any matter with financial involvement. To this end, it is the High Court Division considered view that, as per the provisions of the Constitution respondents side cannot play duel role and cannot maintain duel standard to the Government employees or any other litigants who are similarly situated. Upon considerations of the facts and circumstances of this case, it appears to the High Court Division, no where it is stated that the decision of the Government is applicable only in respect of Deputy Directors and Assistant Directors as claimed by the respondents side, the High Court Division finds no reason to make any such discrimination between the petitioners and the other officers of the Government serving in other Boards/ Authorities having similarly situated. So, it is declared that the impugned memo no. আম/ অবি/ মানি/ পাউবো। বিধি/ ২০০৮/ ১৭৯ dated 27.11.2008 issued by the Monitoring Cell, Finance Division, Ministry of Finance is illegal and, thus, bears no effect. In the result, the Rule is made absolute. Ahmed Ali and 58 others -Vs-Bangladesh and others. (Spl. Original) 15 ALR (HCD) 196-201

Constitution of Bangladesh

Articles 27 and 29-Where the writ- petitioners' specific allegation is that their fundamental rights of being treated equally has been infringed and they have been discriminated in the matter of fixation of their pay scale, the writ petition cannot be said to be not maintainable though they Government servant. are

The Appellate Division considered that admittedly the writ-petitioners have been discriminated in the matter of fixation of their pay scale. It is an admitted fact that the writ-petitioners and some other similarly situated employees of Bangladesh Railway, were getting same pay and they were allowed the same pay scale in the National pay scale of 1973 also. But in the national pay scale of 1977 the writ petitioners were given lower pay scale while those other similarly situated employees were given higher pay scale. It is also not disputed that the writ-petitioners persuaded the authorities concerned to rectify this discrimination/inequalities and the authority concerned also made some attempts to rectify this discrimination in the pay scale of the writ-petitioners, but all those attempts were unsuccessful. In the circumstances the High Court Division rightly made the rule absolute. The Appellate Division finds no reason to interfere with the impugned judgment and order of the High Court Division. Bangladesh Railway and others -Vs-Station Master-O-Karmochari Union and others (Civil) 15 ALR (AD)222-226

Article 27, 29 

Where the rule is not made under any legislative sanctions namely constitutional or statutory authority it is mere administrative instruction having no force of law but the same being the internal notes and others of the office memos for official purpose and should not be produced before the Court in sup- port of the claim of the employees. Md. Abdur Rahman vs Govt. of Bangladesh (Mohammad Fazlul Karim J)(Civil) 3ADC 100

If the plaintiffs were not in possession. of the suit land there was no reason for preparation of S.A. and R.S. records in their names and there was also no rea- son for them to pay rent for the suit land by 17 dakhilas. Md. Motiruddin Mondal @Matiar Rahman Mondal vs Full Mohammed Mollah (M.M. Ruhul Amin JKCivil) 3ADC 108

Article 27, 29 and 31 

The settled principle of law is that seniority alone is not the sole basis for pro- motion and that seniority does not create a claim for being promoted although the same create a right in favour of an employee to consider his case of promotion along with the case of others who are posted in the similar situation. Promotion is to be earned by rendering meritorious service and other than seniority promotion is also conditioned by other factors, such as efficiency, good conduct, character, integrity, sense of value, honesty and temperamental suit- ability. Chairman, Board of ISE Jessore vs Md. Nazir Ahmed (Md. Ruhul Amin J(Civil) 3ADC 550

Article 27

"Equality before law" as provided in article 27 does not mean the same law should be applicable to all the employees of the government, semi-government, autonomous bodies and corporations. The concept basically postulates the application of the same law alike and without discrimination to all the persons similarly situated. It cannot be said that the dated. Government or its instrumentalities acted arbitrarily or practised discrimination between the two classes who are not similar and do not stand on the same footing. Classification between employees of different Corporations and Government employees is legal, valid and reasonable. 

Constitution of Bangladesh, 1972 

Article 27

A classification will be reasonable if it is based upon material and substantial difference having a reasonable relation between the objects or persons dealt with and the governmental objective sought to be achieved. Equality before the law or equal protection of law does not at all imply absolute equality and does not exclude classification on the basis of difference in status. Article 27 does not guarantee absolute equality requiring the law to treat all persons alike. ......(45)

Constitution of Bangladesh, 1972

Article 27

Legislative enactment or a government action cannot be knocked down as unconstitutional even if it results in inequity or is even shocking to the conscience unless such enactment or such action is violative of any provi sion of the Constitution or law and that inequity or unconscionable effect cannot be rectified by the Court by applying Article 27.......(45)

Constitution of Bangladesh

Articles 27, 31, 32 and 36

The provision provided in Article 36 safeguard the right to go abroad against executive interference which is not supported by law; and law here means 'inacted law.' No person can be deprived of his right to go abroad unless there is a law made by the State for so depriving him and the deprivation is effected strictly in accordance with law.

In an organized society, there can be no absolute liberty without social control. Liberty is not unbridled licence. Some restrictions on freedom of movement are legitimate if imposed for limited purposes in a fair and non- discriminatory manner. Limitations on the freedom is justified but the limits must generally be reasonable, prescribed by law, and demonstrably justified in a free and democratic society.

It is observed by the Appellate Division:-

1. The fundamental right guaranteed under Article 36 of the Constitution is non-absolute right. The right to leave one's country has therefore never been considered an absolute right. The right may be restricted in certain circumstances.

2. Article 36 of the Constitution permits imposition of restrictions. However, such restrictions must be by way of the law enacted and must be reasonably needed in the public interest.

3. Without backing of law imposition of restriction on the freedom of movement by an executive order will be unconstitutional. 4. The legislative view of what constitute reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Court.

5. A restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of the public. The restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.

6 Freedoms if absolute would always be detrimental to smooth functioning of the society. Reasonableness demands proper balancing.

7. The right to leave the country and to possess a passport may be restricted, most notably if the person's presence is required due o their having been charged with a criminal offence. merely because a person is involved in a criminal case, he is not denude of his fundamental rights.

8. Restriction may be imposed on travel in order to prevent exit from the country by persons who leave quickly to avoid due process of law. However, this would be subject to confirmation by the appropriate Court within a period of 3 working days. With the observations made above, all the petitions are disposed of....(26) [2022] 26 ALR (AD) 8

Article 27 and 29 (1) 

We have held that this contention of the writ-petitioner has no merit since the amendment was made at a time when writ-petitioner r was not a contender of the post in which he was appointed and he joined in 1995. It is the contention of the learned Counsel that lapse of time is no bar in challenging legality of certain law or the Rules. The said contented would be of worth consideration in a case where the person complaining was affected by the amendment in the law. But in the instant case there in no such situation. It may be mentioned in the instant case amendment in the schedule of the Rules of 1980 was made in 1986 and the writ petitioner having had the notice thereof joined in his service in 1995. So the aforesaid contention in the background of the facts of the instant case is of no merit. Md. Muinuddin Zulfiquer vs. Government of the People's Republic of Bangladesh (Md. Ruhul Amin J) (Civil) 4 ADC 252

Article 27, 38 

If it is found desirable by the authority that in view of the special nature of services rendered by its employees the organisational set-up of trade unions of the Biman or any other organization containing similar professional groups should receive special consideration so as to meet their special situations, then the authority may consider whether, consistent with the constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. In the meanwhile all existing arguments between any of the appellant unions and the Biman, shall remain operative for the duration of the respective agreements. Secretary of Aircraft Engineers etc. (4) vs The Registrar of Trade Unions & ors (4) (Mustafa Kamal J)(Civil) 2ADC 120

Articles 27 and 29- Discrimination pay scale The writ-petitioners have been discriminated in the matter of fixation of their pay scale. It is an admitted fact that the writ-petitioners and some other similarly situated employees of Bangladesh Railway, were getting same pay and they were allowed the same pay scale in the National pay scale of 1973 also. But in the national pay scale of 1977 the writ-petitioners were given lower pay scale while those other similarly situated employees were given higher pay scale. It is also not disputed that the writ-petitioners persuaded the authorities concerned to rectify this discrimination/inequalities and the authority concerned also made some attempts to rectify this discrimination in the pay scale of the writ-petitioners, but all those attempts were unsuccessful. In the circumstances the High Court Division rightly made the rule absolute.

We also find that the writ-petitioners are entitled to get higher pay scales which are being enjoyed by the other employees who were similarly situated with the writ-petitioners and were enjoying similar pay scale till the national pay scale of 1977 came into force. This appeal be dismissed on contest without any order as to cost. ... Bangladesh Railway =VS= Station Master-O- Karmochari Union, [7 LM (AD) 48]

Article 28(4)-Nari-o-Shishu Nirjatan Daman Ain would not override the provisions of the Children Act, 1974, so far as it relates to the prosecution of youthful offenders, since it encompasses the spirit of Article 28(4) of the Constitution. State vs Md Roushan Mondal @ Hashem 59 DLR 72.

Article 28(4)-When an accused claims to be below 16 years of age, a duty is cast upon the court to direct an enquiry to satisfy itself as to whether the accused is a child below 16 years of age on the day of framing charges against him. Rahamatullah (Md) vs State 59 DLR 520.

Article 29-It is not proper for the Courts to direct absorption/ regularization/transfer service of the employees of any development project in the permanent employment in the revenue set up of the Government since they are not recruited following process of selection as envisaged by the constitutional scheme.

The object of the article 29 is to ensure equality of opportunity for all citizens in matters relating to appointment to public offices. Any appointment made in violation of mandatory provisions of the spirit of article 29 of the Constitution and statute would be illegal and such illegality cannot be cured by taking recourse to regularization.

The Appellate Division held that the appointment to any post under the Government or autonomous organizations must be made after a proper advertisement has been made inviting applications from eligible candidates and holding selection by the Public Service Commission or body of experts or specially constituted committee whose members are impartial. The constitutional principle of providing equality of opportunity to all is a fundamental right to the citizens and it mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in the public domain ensuring maximum participation of all eligible candidates, thereby the right of equal opportunity is effectuated. The Director General, represented by Bangladesh Rural Development Board (BRDB), Dhaka -Vs- Md. Rabeul Karim and others (Civil) 18 ALR (AD) 189-199

Articles 31 and 32- Right to life- Right to life is not only limited to protection of life and limbs but also extends to the protection of health, enjoyment of pollution free water and air, bare necessaries of life, facilities for education, maternity benefit, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent to human dignity. Government of Bangladesh =VS= Professor Nurul Islam, [4 LM (AD) 125]

অনুচ্ছেদ ৩১-সংবিধানের অনুচ্ছেদ ৩১ মোতাবেক আইনানুযায়ী ব্যতীত কোন ব্যক্তিকে তার ন্যায্য অধিকার থেকে তথা ন্যায্য প্রাপ্যতা থেকে তথা ন্যায্য প্রত্যাশা থেকে তথা আইনসম্মত অধিকার থেকে বঞ্চিত করা যায় না।

হাইকোর্ট বিভাগ বলেন যে, বর্তমান মোকদ্দমার প্রতিপক্ষ দরখাস্তকারীগণসহ সকল মহল্লাদার দফাদারগণকে বিধিমালা ২০১১ মোতাবেক বেতন ভাতাদি প্রদান না করা সঠিক বিবেচনা প্রসূত নয়। এটি স্পষ্টতঃ প্রতিপক্ষগণের অবিবেচনা প্রসূত আচরন। সহজ সরল পর্যালোচনায় উপরিল্লিখিত আচরন যুক্তিসংগত ও ন্যায়সম্মত নয়। "আপাত দৃষ্টিতে প্রতীয়মান ভ্রম বা ভুল" (apparent error) হল সেই ভুল যা একজন সাধারণ প্রজ্ঞার মানুষও অতি সহজে বুঝতে পারে। অর্থাৎ "আপাত দৃষ্টিতে প্রতীয়মান ভ্রম" হল সেই ভ্রম যার জন্য কোন বিশেষজ্ঞের শরণাপন্ন হওয়ার প্রয়োজন নেই। বর্তমান মোকদ্দমায় প্রতিপক্ষগণ বিধিমালা ২০১১ মোতাবেক দরখাস্তকারীগণসহ সকল মহল্লাদার ও দফাদারগমকে বেতন-ভাতাদি প্রদান না করা সাধারণ যুক্তিতর্কে স্পষ্টতই একটি "আপাত দৃষ্টিতে প্রতীয়মান ভ্রম বা ভুল" (apparent error)। সংবিধানের অনুচ্ছেদ ৩১ মোতাবেক আইনানুযায়ী বাতীত কোন বাক্তিকে তার ন্যায্য অধিকার থেকে তথা ন্যাষা প্রাপাতা থেকে তথা ন্যায্য প্রত্যাশা থেকে তথা আইনসম্মত অধিকার থেকে বঞ্চিত করা যায় না। বর্তমান মোকদ্দমায় দরখাস্তকারীগণ সহ সকল মহ্যাদার ও দফাদারগণের ন্যায্য অধিকার হল বিধিমালা ২০১১ অনুযায়ী বেতন ভাতাদি পাওয়া। কিন্তু প্রতিপক্ষগণ স্পষ্টতঃ দরখাস্তকারীগণ সহ সকল মহল্লাদার ও দফাদারগণকে ন্যাযা অধিকার থেকে বেআইনীভাবে দীর্ঘদিন ধরে বঞ্চিত করে আসছে। লাল মিয়া ও অন্যান্য বনাম বাংলাদেশ সরকার ও অন্যানা (Spl. Original) 19 ALR (HCD) 89-98 

Constitution of Bangladesh

Articles 31 and 42(1) read with

Limitation Act, 1908

Article 10 of the First Schedule

Plaintiff No. 1 being a juridical person, it could not profess Islam and therefore, it could not pray for preemption under the Muhammedan Law on the ground of vicinage and as such, the suits for pre- emption at its instant was not maintainable.

Though the suit land was recorded as agricultural land, the admitted position was that in the vicinity of the suit land industrial units were established and that the vendee purchased the suit land for setting up industry. The plaintiffs were not entitled to get the decree in the suit on the ground of vicinage.

Under the Mohammadan Law for a valid sale, execution of an instrument of transfer was not necessary. After negotiation, the moment the vendor accepts the consideration and puts the vendee into possession, sale is complete, and it gives rise to the right of pre- emption and the right of pre-emption is not dependent on the completion of sale by registration of the instrument of sale.

The High Court Division was totally wrong in declaring the right of pre- emption under the Muhammedan Law on the ground of vicinage both agricultural and town property void being discriminatory and violative of article 42(1) read with article 31 of the Constitution The Appellate Division observed that another important question decided by the High Court Division was that out of the two plaintiffs, plaintiff No. I was a Company and it being a juridical person, it could not profess Islam. Therefore, it could not invoke the right of preemption under the Muhammedan Law on the ground of vicinage. The High Court Division further found that though plaintiff No. 2 was a natural person and he could file the suit under the Muhammedan Law claiming preemption on the ground of vicinage, he did not specify the land out of schedule- 'B' of which he was the owner. The Appellate Division is in agreement with the High Court Division that plaintiff No. 1 being a juridical person, it could not profess Islam and therefore, it could not pray for preemption under the Muhammedan Law on the ground of vicinage and as such, the suits for pre- emption at its instant was not maintainable. Since plaintiff No. 2 did not specify 'B' scheduled land in which portion he was the owner, the High Court Division rightly found that the suits at the instance of plaintiff No. 2 was not maintainable. The High Court Division dismissed the suit on the further findings that the right of pre- emption under the Muhammedan Law on the ground of vicinage alone will not lie in the case of large estates and is available only when either houses or small portion of holdings of land are transferred; pre- emption under the Muhammedan Law was to prevent the inconveniences which might result from the introduction of disagreeable stranger as a co-partner or near neighbour, its object being to prevail possible vexation arising from disagreeable neighbour, right of pre-emption, therefore, cannot be enforced in the case of commercial lands. These findings are based on sound judicial principle of law as emanated from the Hadis discussed hereinbefore. In this regard, the High Court Division rightly noticed that in the instant case, the plaintiffs sought pre-emption of the suit land comprising a vast area of 8-69 acres though they were the owners of 2.58 acres land and that the plaintiffs themselves set up industry in 'B' scheduled land. The High Court Division further found that though the suit land was recorded as agricultural land, the admitted position was that in the vicinity of the suit land industrial units were established and that the vendee purchased the suit land for setting up industry. The Appellate Division concur with these findings of the High Court Division and hold that the plaintiffs were not entitled to get the decree in the suit on the ground of vicinage. The High Court Division was also correct in holding that the suits were barred by limitation as those were filed long after the completion of sale as per the Muhammedan Law. In this regard, the High Court Division rightly relied upon the case of Shamsuddin Ahmed (Supra). In this case, the Appellate Division after evaluating the various decisions including the one of the Privy Council held that under the Mohammadan Law for a valid sale, execution of an instrument of transfer was not necessary. After negotiation, the moment the vendor accepts the consideration and puts the vendee into possession, sale is complete, and it gives rise to the right of pre-emption and the right of pre-emption is not dependent on the completion of sale by registration of the instrument of sale. The Appellate Division has no reason to take a contrary view in this case. In the instant case, the agreement for sale vide Ext-'A' was executed on 16.08.1995 and part payment was made on that date and physical possession of the suit property was also handed over to the vendee on receipt of full consideration, the sale deed was executed and presented for registration on 07.03.1996 whereas, the suit was filed on 30.06.1997, i.e. much beyond the period of limitation of 1 (one) year as provided in article 10 of the First Schedule to the Limitation Act. But the trial Court totally ignored the above factual and legal aspects of the case and thus erred in law in holding that the suits were not barred by limitation. The High Court Division was also correct in holding that the suits were not maintainable inasmuch as after the transfer in question the vendee had already sold 40 acre land to one Serajul Islam who was made defendant No. 3 in the suit, but neither in the plaint nor in the deposition of PW1 any statement was made to the effect that Talib-I-Muwasibat and Talab-I-Ishad were made in respect of the said -40 acre land. Conclusion: Though the Appellate Division finds that the High Court Division was totally wrong in declaring the right of pre-emption under the Muhammedan Law on the ground of vicinage both agricultural and town property void being discriminatory and violative of article 42(1) read with article 31 of the Constitution, the appeals are dismissed for other reasons discussed hereinbefore. Jamuna Knitting and Dying Ltd. and another -Vs.- Messer's Y. K. Co. Textile Ltd and others (Civil) 23 ALR (AD) 98

Constitution of Bangladesh

Articles 31 and 32-It is a settled principle of law that strict compliance with the mandatory provision of law is also a constitutional requirement, as envisaged by Article 31 and 32 of the Constitution.

The High Court Division observed that the Family Courts Ordinance-1985 is special law. According to the law, the Judge of the concerned Court has been vested with the power to reject the application made by the petitioner. Strict compliance with each and every single provision of the Ordinance is absolutely mandatory and not merely discretionary, either on the part of the plaintiff or defendant or on the part of the learned Judge of the Court. Muhammad Shahi- dullah -Vs. Bangladesh, represssssented by the Secretary, Ministry of Law, Justice and Parliam-entary Affairs, Bangl-adesh Secretariat, Police Station-Shahbagh, District-Dhaka, and others (Spl.Original) 18 ALR (HCD) 164-168

Constitution of Bangladesh

Article 31-Refusal and/or intransigence of any administrative authority of doing that which is otherwise not prohibited under the law but is rather incumbent upon it to execute in the interest of the duty to act fairly and reasonably cannot in any way create a legal presumption of a rightful curbing of the proprietary rights of any citizen.

The High Court Division found that the Petitioners having fulfilled all conditions imposed at all material times without any objection raised by the RAJUK (Imam Dockyard vs. RAJUK reported in 2 BLC (1997) 202), there can be no reasonable justification for the continued inertia in dealing with the Petitioners' request for permission to transfer on acceptance of the requisite transfer fee. This Court holds that the requirement of payment of the requisite fee is not to be read as a restriction on the proprietary rights of any individual as the Petitioner No. 2, Mr. Haque that encapsulates the right to transfer, sell etc. Rather, such requirement of a fiscal exaction is to be read as a facilitator for full enjoyment of all rights attendant upon ownership and possessory rights enuring to an individual's benefit and which cannot be curbed, denied or in any way be held in abeyance at RAJUK's sweet will and discretion without any sanction of law. Rather, the presumption will be, and this Court expressly finds to that effect, that fairness in discharge of a public duty demands of RAJUK to operate with transparency and without impunity to extend all possible assistance and grant all approvals to a property owner as the Petitioner No. 2 to maximize his guaranteed right to enjoy his property as permitted by law. RAJUK is in that context found to have fallen short of such exacting standards of administration and public service, thereby, entitling the Petitioners to the relief claimed for. The sudden surfacing of a "List of Disputed Plots" and the loss of the original plot file are all indicative further of devices hatched to defeat the interests of citizens like the Petitioner No. 2, Mr. Haque. This case has permitted this Court to take a peek into the inner workings of RAJUK and the picture that emerges is hardly complimentary. It is one of opaque decision-making processes em- barked upon for collateral purpose which when challenged before the Courts fail to elicit any plausible explanation from RAJUK. the High Court Division is convinced, therefore, of an absence of any plausible reason or legal justification for RAJUK's continued denial to Mr. Haque of a transfer permission that in the facts is rightfully his due. Estate Management Partners Limited and another -Vs- RAJUK and another. (Spl. Original) 15 ALR (HCD) 211-218

Constitution of Bangladesh

Article 33 The provisions of Mobile Court Act do not allow an accused to engage any lawyer of his choice to defend himself. Therefore, it is a clear violation of fundamental right guaranteed under Article 33 of the Constitution. The State -Vs- Ministry of law, Justice and others. (Spl. Original) 19 ALR (HCD) 166-176

Articles 31, 32 and 102-It quite outrageous, how the Gulshan Police assumed the jurisdiction of a civil court, proposing to dispose of a disputed between the landlord and the tenant. Such move on the part of the Gulshan Police is obviously not only unwarranted but also harrowing and the police has no business to call the petitioner for the purpose figured in the said notice.

The High Court Division held that the petitioner made an inquiry by his own people within the local police station and found that no criminal case or GD. entry or any kind of allegation from any quarter is pending in the police station concerned or any where else in Bangladesh. The petitioner is apprehending that a powerful vested quarter who are jealous to the petitioner because of enmity with malafide intention can secure him arrest. The learned Advocate for the petitioner drew our attention to the impugned order at page 16 of the Writ Petition (Annexure-A). Having perused the document the High Court Division could not resist out amazement and surprise. It quite outrageous, how the Gulshan Police assumed the jurisdiction of a civil court, proposing to dispose of a disputed between the landlord and the tenant. Such move on the part of the Gulshan Police is obviously not only unwarranted but also harrowing and the police has no business to call the petitioner for the purpose figured in the said notice, The Rule is, hence, made absolute with cost upon Mohammad Ali, S.1. of Gulshan P.S. to the tune of Tk. 5,000/00 (Taka Five thousand) only from his own pocket. Md. Siraj-Vs. Government of Bangladesh and others (Spl. Original) 23 ALR (HCD) 82

Constitution of Bangladesh

Article 31, 35(1), (3) and Article 47A (1), 47(3) Nullum crimen lege- Among the law points Mr. Razzak invoked, the doctrine nullum crimen sine lege found an important place. According to him it is an universally recognized principle of law that an action if did not amount to a crime when committed, the actor cannot be subsequently punished for that action through subsequent legislation. He also engaged Article 35(1) of our constitution.

Again we find Mr. Razzak's submission on this point totally incongruous and inconsistent with the legal position.

Our constitution is obviously the supreme law of the country and any law which is repugnant to any provision of the constitution is void. Article 47A (1) of the constitution stipulate, "The rights guaranteed under article 31, clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution."

According to Geoffry Robertson Q.C. author of Crimes against Humanity, International Criminal Law came into existence as recently as Nuremberg (Crime Against Humanity, New addition Page-101).

From that point of view when the Nuremberg trial commenced there was no such offence under the International Law as Crime Against Humanity. Although, Nuremberg trial is said to have its root in Kellog- Brian Pact of 1928, that pact was concerned with the rules of war not with International Criminal Law. The following passages from Nuremberg Judgment is pertinent. Although it relates to situation of war, the principle enunciated on nullum crimen sine lege is applicable to crime against humanity, barren of war, equally well;

"To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neihbouring states without warning is obviously untrue, for in such circumstances the attacker must know that what he is doing is wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished...[ The Nazi leaders] must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression."

Professor Willium Schabas of Middlesex University writes with reference to the above passage. "In other words the Tribunal admitted that there was a retroactive dimension to prosecution for crimes against peace, but leaving such wrong unpunished would be unjust. (Unimaginable Atrocities by Willium Schabas, Oxford Page-49.

On Nullum Crimen Sine Lege, the Dutch Judge, BVA Roling, of the International Military Tribunal for the Far East (Tokyo Tribunal) said, "This maxim is not a principle of Justice but a rule of policy. valid only if expressly adopted." He went on to say, "..the accused knew or ought to have known that in matters of international concern he was guilty of participation in a nationally organised system of injustice and persecution shocking to the moral sense of mankind. That fundamental rights are breached where a state fails to investigate, prosecute and punish."(page 183). (A.H.M. Shamsuddin Choudhury, J) ...Government of Bangladesh =VS=Abdul Quader Molla, [8 LM (AD) 375]

Article 31 and 40

The petitioner was a licensed currency dealer operating his business as a cur- rency money changer under license is- sued by the Bangladesh Bank. The terms and conditions of the license stip- ulated that he would follow the direc- tions given from time to time by way of circulars issued by Bangladesh Bank. The petitioner was issued with the li- cense dated 15.06.97 as proprietor of "James Money Changer" granted by Bangladesh Bank. By Memo dated 13.03.2001 he was informed about in- spection of his business by a visiting team of the Bank. Inspection took place on 13.03.2001, 28.03.2001 and 06.08.2001. Mosharref Hossain vs. Governor, Bangladesh Bank (Muham- mad Imman Ali J) (Civil) 9 ADC 263

Articles 32, 33 and 35(5)- It was argued on behalf of the respondent that this court has a duty to uphold the rule of law and the constitutional safeguards on arrest and prevention of torture and ill-treatment of the suspected offenders. In this connection our attention has been drawn to articles 32, 33 and 35(5) of the constitution. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Article 32- Article 32 is couched in the similar language of article 21 of the Indian Constitution. Article 22 of the Indian Constitution relates to protection of arrest and detention in certain cases. The Supreme Court of India dealing with a petition by a victim who has been detained in police custody and his whereabouts could not be located, subsequently it was detected that he was detained by the police without producing before the Magistrate. The Supreme Court relying upon some previous decisions on the subject and on construction of articles 21 and 22 of the constitution held in Jagindra Kumar v. State of U.P., (1994) 4 SCC 260 that the police officer must justify the arrest and detention in police lockup of a person and no arrest can be made in a routine manner on a mere allegation of commission of an offence. It would be prudent, it was observed, for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. Accordingly, for effective enforcement of fundamental rights it issued the following requirements to be complied with whenever accused is arrested:

"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.".....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Article 32- "Save in accordance with law" as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43.

Article 32-Keeping of any prisoner in jail after he served out the sentence amounts to vio- lation of Human Rights and Fundamental Rights guaranteed by the Constitution. Faustina Pereira, Advocate Supreme Court vs State 53 DLR 414.

Article 33(1)-Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

The law has not given any authority to the learned Sessions Judge to limit the appointment of lawyer by each accused. The order limiting the appointment of lawyer by each accused is abso- lutely without jurisdiction. Section 352 of the Code of Criminal Procedure provides that the learned Judge of the Court will consider the accommodation of the general public in the Court room. If one accused engages for himself one hundred lawyers, the lawyers are entitled to defend the accused and as regards sitting arrange- ment the Judge will control, but he cannot pass any order limiting the appointment of lawyer. Hossain Mohammad Ershad [former President Lieutenant General (Retd)] vs State 48 DLR 95.

Article 33- These provisions of the above two sections have been reproduced in article 33 of the constitution. The framers were conscious that despite such safeguards are ensured, this provision should be retained as integral part of fundamental rights. So the police officers must not deprive of the fundamental rights recognised to a citizen...... Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Article 35-If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon (Md) vs State, 66 DLR (AD) 160

Article 35(1)-The principle of 'ex post facto' laws as embodied in Article 35(1) of the Constitution is not applicable in the instant case since the alleged offences were committed during the operation of the Ain of 2002, the punishment for the said offence as provided under Chapter IV of the Ain be applicable. There is no bar to hold trial of the petitioner under provisions of the ACC Act, 2004 for the commission of the offence alleged to have been committed under the Ain of 2002. The case be treated as one instituted under the Ain of 2002 Tarique Rahman vs Governmentof Bangladesh 63 DLR (AD) 18.

Article 35(1)-There is a prohibition on conviction or sentence under an "ex post facto law" not trial of the offence alleged to have been committed or the procedure to be followed in the investigation, inquiry in respect of an offence alleged to have been committed. A person accused of the commission of an offence has no funda- mental right to a trial by a particular Court or by a particular procedure except insofar as any Constitutional objection by way of discrimination or violation of any other fundamental right may be involved. The prohibition under this clause does not extend to merely procedural laws and procedural law would not contravene Article 35(1) merely because retrospective effect is given to it. Tarique Rahman vs Government of Bangla- desh63 DLR (AD) 162.

Articles 35(1) & 102(2)-The writ peti- tion is misconceived one and not maintainable since vires of no law has been challenged. The provision of sub-article (1) of Article 35 of the Constitution will not be attracted since the offence as well as its punishment, if any, would be dealt with under the Ain of 2002. From a clear reading of the FIR, Investigation Report and other materials on record, a prima-facie case under Sections 2(ট) (আ) (ই) and Section 13 of the Ain of 2002 has been disclosed. Tarique Rahman vs Governmentof Bangladesh 18.

Article 35(4) In the enquiry the petitioners can very well controvert the allegations against them. It cannot be suggested that by mere issuance of notices the petitioners are compelled to give evidence against themselves. Article 35(4) therefore is of no avail to the petitioners. Abdul Hafiz vs Director General, Bureau of Anti-Cor- ruption, Government of Bangladesh 51 DLR 72.

Article 35-Double Jeopardy-The accused is going to be prosecuted in respect of an offence which did not occur during the earlier transaction nor the present case arose out of the same fact and for the present offence he was not tried previously. In such a position the doctrine of the Constitution or of the Code as to double jeopardy is not applicable in the present case. HM Ershad vs State. 45 DLR 534.

Article 35(1)- Article 35(1) of the Consti- tution envisages the prohibition on conviction or sentence under an "ex post facto law" not trial of the offence alleged to have been committed or the procedure to be followed in the investigation, inquiry in respect of an offence alleged to have been committed. Tarique Rahman vs Govern- mentof Bangladesh 63 DLR (AD) 18.

Article 35(2)-A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal seem is in force, not be liable to be tried again for same offence. There is no room to say that by accepting the report under section 173 of the Code a vested right has been created in favour of the accused opposite parties. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380

Article 35(2)-If the same facts constitute two offences, which are distinct, conviction for one offence does not debar subsequent prosecution and punishment for the other offence. Gias Uddin-al-Mamun (Md) vs State, 65 DLR 375

Articles 35(3) and 102 read with

আদালত কর্তৃক তথ্য-প্রযুক্তি ব্যবহার আইন, ২০২০

Section 2(1)(kha) Whether remote hearings are in conformity with the constitutional requirement that the pro- ceeding be in public, the answer would be that the Constitution did not say that such proceedings must be in a physical structure called a Courtroom. Once the proceeding in a remote/Virtual hearing through video conferencing is made accessible to everyone involved and any interested member of the public, then the condition as provided by Article 35(3) would be complied with.

Virtual courts have to ensure fairness for all parties and the process's integrity when courts go online. A remote hearing should not create an advantage for a firm that can pay for good lighting and stable internet connections. Virtual courts that understand how to preserve due process will provide a step forward in ensuring access to justice.

Any virtual court must consider privacy, fairness and cyber security concerns as technology becomes more complex. Only by adopting adequate cyber security and protocols, virtual courts will be able to enhance access to justice successfully.

The High Court Division held that the people at large including the renowned journalists and other professionals have also appreciated the Ordinance No. 01 of 2020 as well as the impugned Ain passed by the Parliament for the purpose of dispensation of justice through Audio/Video conferencing during the pandemic situation. As because, by this enactment the litigant people and their Counsels even any interested person may have the scope of access to look into the proceeding of the case from anywhere of the world through video conferencing, if so desired. This new law has brought the litigant people particularly to consume lesser time and money and it is absolutely an extension of the regular court during any pandemic situation. Therefore, considering all the aspects and discussions made above, the High Court Division does not find any substance in the writ petition filed by the petitioner to issue Rule. Hence, the said writ petition is summarily rejected without any order as to costs. A.K.M Asiful Haque - Vs. Ministry of Law, Justice & and others (Spl. Original) 21 ALR (HCD) 188-197

Constitution of Bangladesh 

Article 36

Under Article 36 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the country which can not be abridged or denied arbitrarily on mere liking disliking without any specific law authorizing lawful justification for this purpose. The reasonableness is to be determined by an objective standard and not subjective one.

The freedom to travel, like all other freedom couched in universal terms, however, has never remained absolute untrammelled in any state or society. The right of free movement whether within the country or across its frontier, either in going out or coming in is a personal liberty and the same is not intended to bear the narrow interpretation of freedom from physical restrain. The right to travel abroad cannot be deprived unless reasonable restriction is imposed by law in the public interest. Such restriction must be by law and must be reasonably needed in the public interest....(19) [2022] 26 ALR (AD) 9

Constitution of Bangladesh, 1972 

Article 36

The freedom to travel, like all other freedom couched in universal terms, however, has never remained absolute untrammelled in any state or society. The right of free movement whether within the country or across its frontier, either in going out or coming in is a personal liberty and the same is not intended to bear the narrow interpretation of freedom from physical restrain. ......(18) [74 DLR (AD) 1]

Constitution of Bangladesh, 1972 

Article 36

No person can be deprived of his right to go abroad unless appropriate authority exercising its lawful power imposed restriction upon him. If a person's fundamental right under Article 36 is infringed, the State can rely upon a law to sustain the action. ......(18) [74 DLR (AD) 1]

Constitution of Bangladesh, 1972 Article 36

The right to travel abroad cannot be deprived unless reasonable restriction is imposed by law in the public interest.......(18) [74 DLR (AD) 1]

Constitution of Bangladesh, 1972 

Article 36

Under Article 36 freedom of movement is one of the fundamental rights guaranteed to every citizen of the country which can not be abridged or denied arbitrarily on mere liking disliking without any specific law authorizing lawful justification for this purpose. The reasonableness is to be determined by an objective standard and not subjective one.......(21) [74 DLR (AD) 1]

Constitution of Bangladesh, 1972 

Article 36

The protection it secures is limited one. In no case may a person be arbitrarily deprived of the right to enter his or her own country, and that there are few, if any, circumstances in which deprivation of the right to enter a person's own country could be considered reasonable. Legislation which arbitrarily or excessively invades the right cannot be a proper balance between the freedom guaranteed and the general welfare.[74 DLR (AD) 1]

Constitution of Bangladesh, 1972 

Article 36

No person can be deprived of his right to go abroad unless there is a law made by the State for so depriving him and the deprivation is effected strictly in accordance with law. In the exercise of his rights and freedom, everyone shall be subject only to such limitations as are determined by law. [74 DLR (AD) 1]

Observations

1. The fundamental right guaranteed under Article 36 of the Constitution is non- absolute right. The right to leave one's country has therefore never been considered an absolute right. The right may be restricted in certain circumstances.

2. Article 36 of the Constitution permits imposition of restrictions. However, such restrictions must be by way of the law enacted and must be reasonably needed in the public interest.

3. Without backing of law imposition of restriction on the freedom of movement by an executive order will be unconstitutional.

4. The legislative view of what constitute reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Court.

5. A restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of the public. The restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.

6. Freedoms if absolute would always be detrimental to smooth functioning of the society. Reasonableness demands proper balancing.

7. The right to leave the country and to possess a passport may be restricted, most notably if the person's presence is required due to their having been charged with a criminal offence. However, merely because a person is involved in a criminal case, he is not denude of his fundamental rights.

8. Restriction may be imposed on travel in order to prevent exit from the country by persons who leave quickly to avoid due process of law. However, this would be subject to confirmation by the appropriate Court within a period of 3 working days.  [74 DLR (AD) (2022) 10]

Article 39- Freedom of thought and conscience and speech- Article 39 of the Constitution has given freedom of thought and conscience to the citizens of the country but such freedom of thought and conscience is subject to reasonable restrictions imposed by law in the interest of the security of the State, decency or morality or in relation to contempt of Court. That is to say, any publication during the pendency of any matter in any Court of law, which tends to interfere with the course of justice in any substantial or real manner by prejudicing the mind of the public against persons concerned in the case before the cause is finally heard, is also contempt. In determining this effect, the intention of the printer or author in the publication is not of any consequence. What we are concerned with is that we should not permit any one to poison the fountain of justice. This would be a grave interference with the administration of justice. (Para-4); The State VS Mr. Swadesh Roy. (2 LM (AD) 576]

Article 39, 108 - It has been held in the main judgment that the disclosure of true facts cannot be taken as a defence against the act of contempt. If presentation of facts is made in such a manner, so as to lead or provoke some one to disrespect or shake confidence on any Court of law, not to speak of the highest Court of the Country, such presentation is an act of contempt and the same has been ap- proved not only by all Superior Courts of the sub-continent but all Courts of law of the civilized world. This is the case in the instant proceeding. Md. Riaz Uddin Khan vs. Mahmudur Rahman (Mohammad Fazlul Karim CJ) (Civil) 9 ADC 104

Articles 39-As a heart of democratic society, judiciary must be vigilant to purify the said life-blood of democracy. Certainly yellow-journalism is a vile and bad- element in the life-blood of democracy. We must purge this vile and bad-element from the life-blood of democracy whenever it befalls upon the Court. (PER NAIMA HAIDER, J) State vs Mizanur Rahman Khan, 70 DLR 272

Articles 39-Freedom of press is the life blood of democracy, but this freedom of press is subject to certain qualification. An offence of scandalising the Court per se is one of such limitations. (PER NAIMA HAIDER, J) State vs Mizanur Rahman Khan, 70 DLR 272

Article 39-One is entitled to express his opinion or fatwa but at the same time, he must be careful not to violate any law or hurt the feelings of anybody, specially the women. (PER ABM KHAIRUL HAQUE, CJ, AGREEING WITH SYED MAHMUD HOSSAIN, J (WHO DELIVERED THE MAJORITY JUDGMENT) Tayeeb vs Bangladesh, 67 DLR (AD) 57

Articles 39-When free press is life- blood of democracy, strong judiciary is the protector and guardian of democracy. A balance must be struck so that the judiciary is not injured in the name of free press, as failure of judiciary would ultimately cause failure of whole democratic society. (PER NAIMA HAIDER, J) State vs Mizanur Rahman Khan, 70 DLR 272 0

Articles 39 and 111-When an order is set aside by the higher Court, here, by the apex Court, there is no scope for any academic discussion of the orders so set aside except for the purpose of reference only. (Per Zafar Ahmed, J) State vs Mizanur Rahman Khan, 70 DLR 272

Articles 39(2) and 108- The right of criticising, in good faith whether in private or public, an order or judgment of the Court, cannot be excercised with malice or by attempting to impute the administration of justice to disrepute. (PER NAIMA HAIDER, J) State vs Mizanur Rahman Khan, 70 DLR 272

Article 39 Contempt-Limits of the press -Freedom of the press is recognised in our Constitution-a Court is to suffer criticism made against it. Only in exceptional cases of bad faith or ill motive it will resort to law of contempt. Saleem Ullah vs State 44 DLR (AD) 309.

Article 39-Freedom of speech and expression is tolerated so long as it is not malicious or libellous. If speech or expression was untrue and reckless, the speaker or the author does not get protection of the constitutional right. State vs Chief Editor, Manabjamin 57 DLR 359.

Articles 39 & 108-Article 108 of the Cons- titution has conferred upon both the Divisions of the Supreme Court, as the Court of record, the power of contempt of Court. In Bangladesh this field is governed thus by Articles 108 and 39 read with the Contempt of Courts Act. State vs Chief Editor, Manabjamin 57 DLR 359.

Articles 39(1) & 141(1) The intention of the publication was to make the real Muslims aware about the false interpretation given by the so-called half-educated and preachers of Islam. The allegation does not come within the ambit of the offence of section 295A of Penal Code against the petitioners. Shamsuddin Ahmed vs State and another 52 DLR 497.

Article 40-Right to profession-The impugned restriction on the petitioner's right to be enlisted as a contractor may be bonafide and in the interest of the Board, but when it interferes with his fundamental right to profession, the restriction cannot be allowed to exist unless authorised by law. Abdul Jalil vs Chairman, REB. 45 DLR 24.

Article 40- Right to livelihood- Admittedly the writ petitioner-respondent after getting the work order started his work as per schedule and continued the same till he was suddenly directed to stop all works without assigning any reason as it appears from the impugned suspension orders as well as from the subsequent show cause notice. It is also admitted that his entire bill has not been paid even on repeated demands instead he was debarred from participating in any of the REB's bids without assigning any reason. Such action of the present appellant appears to be arbitrary, malafide and beyond the principle of natural justice. ..... Chief Engineer, REB VS Biswajit Ganguly, [3 LM (AD) 192]

Article 41-Right to profess religion-The right of the Ahmadiyya community to preach their religious beliefs is subject to law, public order and morality. The book having contained matters which are deliberately and maliciously intended to outrage the religious beliefs of the bulk of the Muslims, the Government was justified in forfeiting the book. Bangladesh Anjuman-e- Ahmadiyya vs Bangladesh 45 DLR 185.

Article 42- The restrictions mentioned in Article 42 will be available in section 97 of the State Acquisition of Tenancy Act, 1950, Rule 34 of the Rules for the administration of the Chittgaong Hill Tracts and section 64 of the Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989. Section 97 of the Act of 1950 provides 'Restriction of alienation of land by aboriginals'. Under this provision if an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift or will to any person who is not such as aboriginal, he may apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as he thinks fit. There are also restrictions for mortgage of land of aboriginals. Rule 34 of the Rules promulgated in exercise of powers under Chittgaong Hill Tracts Regulation, 1900 which restricts "Settlement and Government khas land, Transfer, Partition and Subletting". It is provided that no 'settlement of Government Khas Land shall be made in the district of Chittagong Hill Tracts except in the manner specified in clauses (a), (b), (c), (d), (e), (f) and (g). Section 64 of the Ains of 1989 prohibits sale, lease, settlement or otherwise transfer of lands of three hill districts without prior permission of the Hill District Parishads. Wagachara Tea Estate Ltd -VS- Muhammad Abu Taher, [3 LM (AD) 478]

Constitution of Bangladesh

Article 42 of Part III-The Agreement entered into by the writ-petitioner had no legal basis. Hence, there was no question of any right accruing in favour of the writ-petitioner. Firstly because the Liquidator apparently did not exist at that time. Secondly, his power with regard to the Mill was only to the extent of selling the same through tender and not by any agreement. Every part of the transaction that followed, including payment and acceptance of instalments was without lawful authority.

The Appellate Division is of the view that in the facts of the instant case the contract entered into by the Official Liquidator is not a statutory contract, apart from the fact that, as the Appellate Division has noted above, the post of the li- quidator had been abolished and in any event the liquidator was authorised to sell the property in question through tender. In the later case of Superintendent Engineer, RHD Sylhet and others v. Md. Eunus and Brothers (Pvt.) Ltd. reported in 31 BLD (AD) 1 the decision of this Division reported in 9 BLC (AD) 1, noted earlier, was considered and six conditions were formulated, which would permit entertaining an application within the writ jurisdiction in case of breach of contract.. These were as follows:

(a) the contract is entered into by the Government in the capacity as sovereign;

(b) where contractual obligation sought to be enforced in writ jurisdiction arises out of statutory duty or sovereign obligation or public function of a public authority;

(c) where contract is entered into in exercise of an enacting power conferred by a statute that by itself does not render the contract a statutory contract, but "if entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory';

(d) where a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions and the contract so entered by the statutory power then merely because one of the parties to the contract is statutory or public body such contract is not a statutory contract;

(e) when contract is entered into by a public authority invested with the statutory power, in case of breach thereof relief in writ jurisdiction may be sought as against such on the plea that the contract was entered into by the public authority invested with a statutory power;

(f) where the contract has been entered into in exercise of statutory power by a statutory authority in terms of the statutory provisions and then breach thereof gives right to the aggrieved party to invoke writ jurisdiction because the relief sought is against breach of statutory obligation."

In the aforesaid case tender had been issued by the Roads and Highways Department for the construction of a bridge. The writ-petitioner challenged the Department due to the fact that their bid was not successful. Before the Appellate Division it was argued that the writ petition involved a commercial contract and hence, the High Court Division was wrong in holding the writ petition maintainable Upon referring to the six conditions noted above, it was held that the contract does not fulfill any of the requirements to make the same statutory contract or contract entered into by the Government in the capacity as sovereign. In the light of the above discussion the Appellate Division finds that the contract in question having been entered into by the official liquidator was not a sovereign contract and hence it was not amenable to the writ jurisdiction. Gov- ernment of Bangladesh and others Vs. M/S AMS Faraj Construction and another (Civil) 15 ALR (AD)90-96

Article 42- Requisition/acquisition of the suit plot compensation- Article 42 of the Constitution provides 'every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property and no property of a citizen shall be compulsorily acquired, nationalised or requisitioned save by the authority of law on payment of appropriate compensation'. Payment of adequate appropriate compensation in lieu of acquisition is a constitutional right of a citizen. Non payment of such compensation shall fully frustrate/ affect the constitutional right of the affected person. From the records it appears that the defendant-appellants failed to prove that against the requisition/acquisition of the suit plots any/adequate compensation has been paid to the affected person.

The appellants are directed to assess and pay adequate compensation, if not paid earlier, to the respondents, who are affected persons, in accordance with law. Accordingly, both the civil appeals are allowed with the above observations and direction. Government  of Bangladesh =VS= Md Alamgir Hossain, [7 LM (AD) 146] 

Article 45- The fundamental rights available in Part III of the Constitution cannot be invoked by a member of a disciplined force if any law prescribed a provision limited for the purpose of ensuring the proper discharge of his duty or maintenance of that force. ......Bangladesh & others =VS Md. Abdus Satter & others, [1 LM (AD) 378]

Article 47

The High Court Division is of the view that the respondents are under trial pris- oners in connection with different cases and on consideration of their social and political status, they can not be denied and/or deprived of their right or entitle- ment of benefits and status as per Jail Code. In arriving at such conclusion the High Court Division has taken into con- sideration Rule 910 of the Bengal Jail Code. Government of the People's vs. Abdul Quader Mollah (S.K. Sinha J) (Civil) 8 ADC 972

Article 47A(2)- Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the Act or any of amended provisions thereto. Chief Prosecutor vs Abdul Quader Molla, 65 DLR (ICT) 1

Article 47A (2) A review petition filed by those subject to regimentation clogged by Article 47A (2) of the Constitution, the Appellate Division is to ensure that in the pretext of review, re- hearing of the whole matter is not initiated. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392]

Article 47(3) and 102(3)- In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability. It is true that the High Court Division has not said anything as to the vires of the sections of the Act, 1973 challenged in the writ petition, but it disposed of the same in the manner as quoted hereinbefore after making some observations as stated earlier; there may be a misgiving in the mind of litigant people that a writ petition challenging a provision of the Act, 1973 or any action of the International Crimes Tribunal, is amendable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. Moreso, the learned Judges cannot arrogate to themselves as advisors and it was not an act of discreet on their part to advise the writ-petitioners to redress their grievance by invoking article 104 of the Constitution. Bangladesh =VS=Shireen Pervin Hug & others. [1 LM (AD) 195]

The Bangladesh Constitution

Article 48 (3)

Directing the Secretary, Ministry of Law, Justice and Parliamentary Affairs, to produce the relevant papers containing the opinion of the learned Chief Justice of Bangladesh about the appointment of concerned six Judges through the Attorney General at the time of hearing. Government of Bangladesh vs. Md. Shamsul Huda (Md. Abdul Matin J) (Civil)6 ADC 392

Article 49- End of convicts life as the alternative to death sentence can only be exercised by the High Court Division and this court and not by any other inferior tribunal or the executive. Accordingly, we conclude our opinion as under:-

(1) A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefor.

(2) Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.

(3) If the High Court Division or this court commutes a sentence of death to imprisonment for life and direct that the prisoner shall have to suffer rest of his natural life, such type of cases would be beyond the application of remission.

(4) Section 57 of the Penal Code is only for the purpose of working out the fractions of the maximum sentence fixed for the principal offence, that is to say, if such provision is not made, it would have been impossible to work out the fractions of an indefinite term.

(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1 (Part I) are administrative instructions regarding various remissions.

(6) If an offender pleads guilty at the initial stage of the trial of the case in respect of an offence punishable with death or imprisonment for life, the court/tribunal shall take lenient view on the question of awarding sentence, but in such cases, the court shall ascertain as to whether the offender pleading guilty upon understanding the offence charged with against him before accepting such plea. Provided however that the court is not bound to accept all pleas of guilty and award the minimum sentence.

(7) In exercise of power under article 49 of the constitution the President has power to grant pardon, reprieves and respite and to remit, suspend or commute any sentence even after the commutation of sentence by this court or the High Court Division.......Ataur Mridha =VS= The State, [3 LM (AD) 513]

Article 56 (3) 

Establishment but the words "by order of the President" were used to comply with the constitutional formalities as laid down in the then Article 56 (3) of the Constitution. He means to say that the order of dismissal was not passed "by the President' and therefore the remedy of appeal was available to him under the 1985 Rules. Bangladesh vs Md. Golam Rahaman Mallick (Mustafa Kamal J Civil) 3ADC 624

Constitution of Bangladesh

Articles 57 and 58-Though there may be a break between one parliament and another parliament, the legislative of the government cannot have any break and even if 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 of fice. The tenure of the Ministers also like same as provided by Article 58 in that they will also continue to hold office until his or her successor enters upon such office.

The High Court Division held that 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. Now the provisions dealing with the election are incorporated under Part -VII of the Constitution wherein though all provisions are not relevant for the purpose of this writ petition, sub-article (3) of Article 123 is relevant. It appears from the said provisions that in case of dissolution of parliament by expiration of its tenure, the general election of members of Parliament shall be held within the period of 90 days preceding such dissolution and it such dissolution of parliament takes place for other reason, such election shall be held within 90 days after such dissolution. Proviso to subarticle (3) provides that such elected members of the parliament shall not assume of office as members of parliament except after the expiration of the term referred in Clause-(a) of sub-article (3), which means that until five years term is expired from the first meeting of the last parliament, the members of new parliament cannot assume office in reality. However, this provision has to be read with the provisions, in particular the 'deeming clause 25 incorporated in Article 148. Mr. Md. Taherul Islam (Tawhid). -Vs.- The Speaker, Bangladesh Jatiya Sangsad, West Block, Room No. 521, Level-5, Bangladesh Parliament Secretariat, Sher-E-Bangla Nagar, Dhaka and others. (Spl. Original) 16 ALR (HCD) 128-1

Article 58(2)- (now repealed) - The nature of the document of which the petitioner pleads protection and the related matters being in the facts of the case a mixed question of fact and law, it is not yet time to consider this constitutional question while the document is still not ready for observation with all its factual clothings.

The Indian cases relied upon by the petitioner are constitutional cases in which Article 74(1) of the Indian Constitution came up for repeated interpretation. Any interpretation of Article 58 (now repealed) of the Constitution by us while disposing of an application of this nature will not be on a par with the Indian decisions on the subject because our decision too will be tentative in nature and will not be binding on the trial Court. We, therefore, see no reason to grant leave to consider a question of constitutional impor- tance when the occasion for such consideration has not arisen Moudud Ahmed vs State 48 DLR (AD) 42.

Article 58(2)- Criminal trial constitutional protection-where the State does not take shelter of article 58(2) rather it produces through its machinery for procuring the documents by sub- mitting the charge-sheet, statement under section 161 CrPC and he police record, the protection of Article 58(2) is of no avail to the petitioner Moudud Ahmed vs State 48 DLR 108.

Article 58(2)- Unless it can be shown by a party that his claims of protection under Article 58(2) is on the basis of "Public interest" Article 58(2) hardly has any role to play. Moudud Ahmed vs State 48 DLR 108.

Article 58(2)- The order made by the petitioner as a Minister being something more than his advice to the President, the Court's juris- diction is not ousted from enquiry into the same by reason of Article 58(2)

On the first contention of constitutional embargo upon the Court to enquire into any advice given by the Ministers as contended under Article 58(2) to the President is concerned I am of the opinion that which constitute the advice can not be inquired into by any Court but the materials upon which that advice is given does not disentitle a Court from examining the same. Moudud Ahmed vs State 48 DLR 108.

Article 59

It appears from the record that the High Court Division held that since the site selection for construction of Union Parishad Bhavan is a matter of Govern- ment policy in accordance with law and the Authority has done the same. Ac- cordingly, the High Court Division find- ing no substance in this application rejected the same summarily. Md. Jamiruddin Biswas. vs. The Govern- ment of the People's (Mohammad Fa- zlul Karim J) (Civil) 6 ADC 97

Article 64(3)-Attorney-General- The performance of his duty, the Attorney- General should have the right of audience in all Courts of Bangladesh. State vs Secretary, Ministry of Public Administra- tion, 67 DLR (AD) 271

Article 65- Parliament being the Supreme Legislative authority subject to the constitutional limitations under Article 65 has the plenary power to pass any law on any subject both prospectively and retrospectively. But the parliament cannot pass a law to create a new offence which is not in existence at the time of commission of the act charged as an offence nor can it increase penal liability with retrospective effect. Tarique Rahman vs Government of Bangladesh 63 DLR (AD) 18.

Article 65, 67 (1) (b) 78(1) 148(3) 

Show cause as to under authority of law they are abstaining from attending the parliament and why they should not be directed to attend the Sessions of the parliament of the people's Republic of Bangladesh, and perform their constitutional duties and obligations........(5) Moudud Ahmed and others vs. Md. Anawer Hossain Khan (Dead) (Md. Ruhul Amin CJ)(Civil) 5ADC 361

Article 65(1)- Article 65(1) provides thut nothing shall prevent the Parliament from delegating its power to make orders, rules or other enactments having legislative effect. It is the established principle of law that the Legislature is not always required to legislate in its entirely to carry out all its work. Some of its functions is left out to be performed fully by persons technically conversant with the levy and realization thereof, or else the legislative scheme as to levy and realization may be frustrated. Government of Bangladesh vs Confidence Cement Ltd (Civil) 75 DLR (AD) 74

Article 65- It is the Supreme Court alone which is empowered to examine whether or not any law is inconsistent with the constitution. The Parliament has given the legislative power under article 65 to promulgate law but this power is circumscribed by limitations and if it exercises any power which is inconsistent with the constitution, it is the Supreme Court which being the custodian of the constitution and is manned by the Judges who are oath bound to protect the law to examine in this regards. The Supreme Court is the only organ of the State to see that any law is in consonance with the constitution. So, where the constitution confers the power upon the Supreme Court to strike down laws, if found inconsistent, such power cannot be delegated to a Tribunal created under subordinate legislation. In the alternative, the Supreme Court cannot delegate its power of judicial review of legislative action to a Tribunal. It is only on the principle that the donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one or in the alternative a delegatee cannot exercise same or more power than the delegator. Government of Bangladesh VS Sontosh Kumar Shaha, [4 LM (AD) 143]

বাংলাদেশ সংবিধান

অনুচ্ছেদ ৬৫ (১) (২) একজন সংসদ সদস্যকে জনগণের ভোটে নির্বাচিত হতে শহ, অপরদিকে গভর্নিং বডির সভাপতি নিয়োগকারী কর্তৃপক্ষের পদমর্যাদা সংসদ সদস্যের নীচের পদমর্যাদার।

হাইকোর্ট বিভাগ এবং মাননীয় আপিল বিভাগ এর রায় ও আদেশ পর্যালোচনায় এটা কাঁচের মত স্পষ্ট যে বেসরকারী শিক্ষা প্রতিষ্ঠান, ফাজিল ও কামিল মাদ্রাসাসহ সকল শিক্ষা প্রতিষ্ঠানের গভনিং বডিতে জাতীয় সংসদের সম্মানিত সদস্যগণ সভাপতি হিসেবে নিয়োগ/মনোনয়ন সংবিধানের মূল উদ্দেশ্যের সহিত সাংঘর্ষিক। সর্বজন শ্রমের মাননীয় সংসদ সদস্যাগণকে জাতীয় গুরুত্বপূর্ন আইন প্রণয়নে সার্বক্ষণিক নিবেদিত থাকতে হয়। এছাড়া গভর্নিং বডির সভাপতির পদ মাননীয় সংসদ সদস্যদের মহান পদ এর সাথে একেবারেই বিপরীত। মাননীয় সংসদ সদস্যগণ তাঁর নির্বাচিত এলাকাসহ সমস্ত দেশের উন্নয়নে নিবেদিত, অপরদিকে গভনিং বডির সভাপতি শুধুমাত্র উক্ত প্রতিষ্ঠানের উন্নয়নে নিবেদিত। অতএব, আদেশ হয় যে, অত্র রুলটি বিনা খরচায় চূড়ান্ত করা হলো। এসএম আফজালুল হক বনাম বাংলাদেশ সরকার ও অন্যান্য (Spl. Original) 19 ALR (HCD) 176-179

Constitution of Bangladesh

Articles 66(2) (d) and 102

A person shall be disqualified for election as a member of Parliament on conviction for a criminal offence involving moral turpitude and sentenced to imprisonment for a term of not less than two years.

The High Court Division held that so far as the conviction and sentence awarded to the petitioner in Special Case No. 17 of 2017 (03 of 2010) and affirmed by the judgment and order of the High Court Division, is concerned, the petitioner has no scope, even to enter into any debate relating to the effect of pendency of appeal against the orders of conviction and sentence inasmuch as in the eye of law, there is no appeal against the same as yet before the Appellate Division and so, petitioner's conviction and sentence remains confirmed without any appeal and as such, on this score as well, the petitioner is a disqualified person in the ensuing election in accordance with article 66(2) (d) of the Constitution. Having regard to the above scenario, High Court does not find any impropriety in the orders passed by both the Returning Officer as well as the Election Commission. Hence, there is no merit in this application. Accordingly, the writ petition is rejected summarily. Begum Khaleda Zia Vs Bangladesh Election Commission and others. (Spl. Original) 20 ALR (HCD) 77-81

Constitution of Bangladesh

Articles 66(2)(d), 102(2) and 103(3) A person shall be disqualified for election as a member of Parliament on conviction for a criminal offence involving moral turpitude and sentenced to imprisonment for a term of not less than two years.

An appeal shall only lie as of right under the circumstances as mentioned in sub-clauses (Ka), (Kha) and (Ga) of article 102 (2) of the Constitution and that except thereof, in all other cases the aggrieved person has to file petition for leave to appeal under article 103 (3) of the Constitution and unless the Appellate Division grants leave in the appropriate petition for leave to appeal, there can not be any appeal.

The High Court Division held that here the petitioner has only filed Criminal Miscellaneous Petitions for Leave to Appeal being No. 1624 of 2018 and 1625 of 2018 and even she has not yet filed any regular petition for leave to appeal. After filing and hearing of the regular Criminal Petition for Leave to Appeal, if the Court grants leave then appeal will be registered against the judgment of the High Court Division and it is yet to be done. Therefore, it is too far to consider petitioner's petition for leave to appeal as an appeal in accordance with the article 103(3) of the Constitution. Regard being had to the above, so far as the conviction and sentence awarded to the petitioner in Special Case No. 17 of 2017 (03 of 2010) and affirmed by the judgment and order of the High Court Division, is concerned, the petitioner has no scope, even to enter into any debate relating to the effect of pendency of appeal against the orders of conviction and sentence inasmuch as in the eye of law, there is no appeal against the same as yet before the Appellate Division and so, petitioner's conviction and sentence remains confirmed without any appeal and as such, on this score as well, the petitioner is a disqualified person in the ensuing election in accordance with article 66(2) (d) of the Constitution. Having regard to the above scenario, the High Court Division does not find any impropriety in the orders passed by both the Returning Officer as well as the Election Commission. Hence, there is no merit in this application. Accordingly, the writ petition is rejected summarily. Begum Khaleda Zia. Vs. Bangladesh Election Commission and others. (Spl. Original) 19 ALR (HCD) 62-66

Article 78(3)-No member of the Legislature should be questioned or penalised by any Court for anything said within its four walls. Cyril Sikdar vs Nazmul Huda 46 DLR 555.

Articles 81 and 82

Income Tax Ordinance [XXXVI of 1984]

Section 116A-The purported Act No. 7 of 2013 published on 26.02.2013 in the Bangladesh Gazette, Additional Issue ratifying the provisions of the Income Tax Ordinance, 1984 and its subsequent amending Ordinances, Acts, Orders, etc., should not be declared ultra vires the provisions of Articles 81 and 82 of the Constitution of the Peoples Republic of Bangladesh, 1972. 

While section 116A is invoked there has to be "definite information" of concealment of income with specific time frame with regard to the order of giving direction not to remove the articles. On the expiry of the said period the order of suspension of the respective bank accounts ceases to have effect within the fold of law.

The High Court Division held that in the present case, operation of the respective bank accounts of the petitioner was suspended by the respondent No. 8 on 27.08.2018 invoking power as provided under section 116A of the Ordinance. Subsequent thereto on conclusion of inquiry a report was submitted by the said respondent to the Tax Commissioner concern for taking necessary steps to that effect. Pursuant thereto the case of the petitioner was re-opened under sections 83(2)/93 of the Ordinance with service of notice upon it. In view of the above, the High Court Division has no manner of doubt to find that with the re-opening of the case of tax return of the petitioner under section 93 of the Ordinance the order of freezing the operation of the bank accounts of the petitioner by the respondent No. 2 exercising power under section 116A of the Ordinance has lost its force in the eye of law. As such, the respondents Banks are directed to allow the petitioner to operate its respective bank accounts in accordance with law. With the above observations and direction 2nd part of this Rule is accordingly disposed of. Cassiopea Apparels Limited Vs. Bangladesh and others. (Spl. Original) 18 ALR (HCD) 356-359

Article 83 

Admittedly there is no tariff value fixed for the import of the respondent's Hard Board of 8X4X2.5mm size and dimension and the same is liable to be assessed in the face value at invoice value. Moreover, the value of the imported goods on the valuation of goods and propionate rate has no warrant in law. Commissioner of Customs and others vs. Mohammad Ali (Mohammad Fazlul Karim J)(Civil)4 ADC 608

Article 83 & 152(1) The meaning of the word 'tax' has been used in a comprehensive sense to mean and include all money raised by taxation and includes those known as 'rates' or other charges levied by local authorities under statutory powers. (Gouse v. Kerala, AIR 1980 SC 271). A tax cannot be levied or collected merely by an executive fiat or action without there being a law to support the same. (Kerala v. Joseph, AIR 1958 SC 296). Article 83 contains in clear terms that "by or under the authority of an Act of Parliament". Therefore, no tax can be levied without any sanction of law. Under this article not only levy but also collection of tax must be sanctioned by or under the authority of an Act of Parliament. The expression 'levy' includes creation of liability or fixation of its quantum and the expression 'collect' refers to physical realization of tax. (Somaiya Organics v. UP, AIR 2001 SC 1723). 'It is the States which were protected as a result of the declaration for otherwise on the conclusion that the impugned Acts lacked legislative competence the result would have been that any tax collected would have become refundable as no state could retain the same because levy would be without the authority of law and contrary to Article 265 of the Constitution', the court observed. Article 265 is couched in similar language of article 83 of our Constitution. Moreover, under the revenue laws, there are provisions for collecting revenue at a given rate fixed by Finance Act and also for collecting fine for non-payment of revenue. But there is no scope for collecting any lump sum amount. Bangladesh Bank-VS-East West Property Developments (Pvt.) Ltd.. [3 LM (AD) 106]

Article 83- Not only tax must be levied validly, its collection must also be made in accordance with an Act of Parliament. When an Act of Parliament provides that a tax shall be collected in such manner as may be prescribed by rule, no tax can be collected until rules are made. (Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321). Article 83 gives protection against arbitrary collection of tax. When an assessment is made in an arbitrary manner there is no collection of tax in accordance with law. The language of article 83 clearly implies that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not complied with the liability to pay the tax cannot be said to be according to law. ..... Bangladesh Bank-VS-East West Property Developments (Pvt.) Ltd., (Civil), [3 LM (AD) 106]

Article 83- As per constitution or law, no officer of DGFI or any officer of intelligence forces has/had any right or authority to recover such money as tax or VAT. Article 83 totally prohibits in such process of realising any money otherwise than Act of Parliament. Bangladesh Bank-VS-East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106] 

Article 84, 85, 87 & 90- Article 88 has no manner of application, inasmuch as, article 88 speaks about expenditure to be charged upon Consolidated Fund. The expression expenditure has been used in article 87. It says that in every financial year there shall be laid, a statement of the estimated receipts and expenditure of the government for that year before the Parliament. The amount received by the government must be against revenues, loan etc. and not otherwise. As observed above. public expenditures are classified in two categories, expenditure charged on Consolidated Fund and the charges granted by Parliament on an annual basis. The expenditure mentioned in article 88 should be read with article 87. This expenditure is public expenditure. If the money recovered and deposited with the Bangladesh Bank are not part of Consolidated Fund, no Act of Parliament is necessary for returning the said money under articles 85 or 90 of the Constitution, inasmuch as, the same were illegally extorted from the writ petitioners without any sanction of law......Bangladesh Bank-VS-East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106]

Article 84(1) & 144- Sometimes it happens that all the money required for the public expenditures cannot be raised by taxation and the government has to resort to borrowing. Article 144 gives authority to the executive to enter into contract and the government can borrow money for which sanction of Parliament is not necessary. All borrowings in a financial year are shown in the budget and in approving the budget the Parliament approves the borrowings. All borrowings do form part of the Consolidated Fund (article 84(1)) and Parliament's authorization is necessary for expenditure from the Consolidated Fund. Bangladesh Bank-VS-East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106]

Article 93-Failure of the Parliament to pass an Act in terms of the amending Ordinance do not destroy/repeal amend- ments which have already been incorpo- rated in the ACC Act, 2004. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 93(2)- There was no further need to pass an Act in terms of the amending Ordinance under Article 93(2) of the Constitution. It cannot be held that the amended provision of the Act ceased to have effect for non-compliance of the requirement of Article 93(2) of the Constitution inasmuch as the amending Ordinance was fully acted upon and served its objective prior to the Parliament coming into session. Moudud Ahmed vs State, 68 DLR (AD) 118

Constitution of Bangladesh

Article 94(1) -Article 94(1) mandates that there shall be a Supreme Court for Bangladesh to be known as Supreme Court of Bangladesh comprising the Appellate Division and the High Court Division. Ar ticle 95(3) of the Constitution provides that in this article, "Supreme Court" includes a Court which at any time before the commencement of this Constitution, exer- cised jurisdiction as a High Court in the territory of Bangladesh. Therefore, there should not be any doubt in the mind of an- ybody to acknowledge, understand and admit that the High Court of East Bengal renamed as the High Court of East Pakistan by operation of law paved the way for the establishment of the Supreme Court of Bangladesh by operation of law after liberation of Bangladesh; that the entire area demarcated by boundary wall of the Governor House or the New Government House in which the High Court of East Bengal was established. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. Vs. Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63

Articles 94(4) and 116A- The District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration.

The Appellate Division helds that the Ministry of Public Administration's circulars under memo dated 15th March, 1992, 11th May, 1991 and 17th January, 2000 are not applicable to the District Courts. Henceforth, the District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration. The said circulars are not applicable to the lower judiciary. Govt. of Bangladesh & another VS Md. Abul Kalam Azad & others, [1 LM (AD) 267]

Article 95-The majority party in parliament forms government and therefore a heavy duty is cast upon the parliament to see and monitor as the controlling authority of the Government that no person unworthy of the post is ever appointed as a judge of this Court. State vs Chief Editor, Manabjamin 57 DLR 359.

Articles 95 & 98-In the matter of appointment of judges of the High Court Division of this Court a prior consultation with the Full Court is a must and their opinion must have a primacy and be binding on the Executive. Otherwise not only the independence of the judiciary which is one of the basic features of the Constitution will be destroyed but spineless, pliant and submissive persons would be appointed by the Executive on extraneous grounds which would not be conducive to justice. State vs Chief Editor, Manabjamin 57 DLR 359.

Article 96-

The Sixteenth Amendment impairs the independence of the judiciary by making the judiciary vulnerable to a process of impeachment by the legislature which would be influenced by political influence and pressure. (Syed Mahmud Hossain, J). ...Government of Bangladesh VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 99(1)-In our Constitution there is no bar in reappointing a judge on contract basis on retirement in a judicial or quasi-judicial office. Men are by nature selfish and judges are also human beings with all the failings. To keep them above board the relevant provision as contained in Article 99 of the Constitution should be abolished. State vs Chief Editor, Manabjamin 57 DLR 359.

Article 98 

Whether the provisions of section 141 of the Code of Civil procedure providing that "the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction", apply in terms to proceedings in writ in the original constitutional jurisdiction of the High Court Division under article 102 of the Constitution. 

It is fundamental that the court exists for doing justice and for doing ends of jus- tice such power must exist in every court be it a Civil court, a criminal court on a writ court. Civil cases and criminal cases are governed by the Code of Civil procedure and Criminal procedure. But in writ case there is no such procedure other than the existing rules as mentioned above. Power to do justice is the basic pre-requisite of a court and if a court feels that injustice has been done in a case it can adopt such procedure as it thinks fit. 

In the code of Civil procedure there is a provision under Order 9 rule 13 to set aside an exparte decree in a Civil case. The writ court being not a civil court it does not specifically possess that power. There being no express rules in this regard, it must be held that the writ Court must possess this power for doing justice in a case and whether the court will exercise such power is a matter of judicial discretion for that court. Moni Begum and others vs. Rajdhani Unnyan Kartripakha (RAJUK) and other (Mustafa Kamal J) (Civil) 4 ADC 344

Constitution of Bangladesh 

Article 102 (2)(a)(i)

It is well settled now that second part of clause (2)(a)(i) of the Article 102 of the Constitution confers power on the High Court Division to issue writ in the nature of mandamus to compel a person performing functions in connection with the affairs of the Republic or a Local authority to do something that he is required by law to do. [2022] 24 ALR (AD) 8

Locus Standi

On perusal of the aforesaid provision it appears that the key words are "any person" who can make an application under Article 102(2)(b)(ii) of the Constitution. This question as to who is/are the "any person" that has been clarified by this Division in the case of Bangladesh ve Md Aftabuddin reported in 15 BLC (AD) 25 wherein it has been held "writ petition before the High Court Division being one under Article 102(2)(b)(ii) of the Constitution does not require that the applicant for a writ of quo warranto must be an aggrieved party. Any person can maintain such an application without showing any violation of his legal right." Again, in the case of National Board of Revenue vs. Abu Saeed Khan reported in 18 BLC (AD) 116 this Division has spelt out who can come forward as a public interest litigant. Therein this Division has set fourteen parameters within which the High Court Division should or should not extend its discretionary jurisdiction in entertaining a Public Interest Litigation including that if it is to protect the basic human rights of the disadvantaged citizens who are unable to reach the Court due to illiteracy or monetary helplessness. In the present case a person has been admitted/enrolled as an advocate, who was convicted for an offence involving moral turpitude, before elapsing/expiry of the period fixed in the Rules. Thus a disqualified person being enrolled as an advocate the clients, mostly illiterate and financially helpless, would not get appropriate legal assistance from him and their basic human rights would not be protected by him. So, the writ petitioner has locus standi to file the writ petition challenging his enrollment as an advocate as a public interest litigant in a writ of quo warranto under Article 102(2)(b)(ii) of the Constitution. [73 DLR (AD) (2021) 109]

Joint Reliefs in Writ

The learned Advocate for the leave petitioner put a question that in a proceeding under Article 102(2)(b)(ii) of the Constitution, i.e. in a writ of quo warranto, direction cannot be sought for in the form of mandamus because in that case, the proceeding becomes a mixture of writ of quo warranto and mandamus and the Court in such circumstances should not grant such relief. Such submission is not acceptable as there is no difficulty under Article 102 of the Constitution to combine reliefs and, as such, writ of quo warranto may be issued with writ of certiorari or mandamus. In the case of the State of Haryana vs The Haryana Co-Operative Transport Ltd, reported in AIR 1977 SC 237, award given by the presiding officer of the Labour Court was challenged on the ground, inter alia, that he was not qualified to hold the post of a Judge of the Labour Court. The matter went up to the Supreme Court by special leave, wherein the only question for decision was whether Shri Hans Raj Gupta who gave his award as the Presiding Officer of the Labour Court was qualified for being appointed as a Judge of the Labour Court. The Supreme Court of India in that case held:

"The mere circumstances that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justify the argument that the appointment was being challenged collaterally in a proceeding taken to challenge the award. Considering the averment in the writ petition, it seems to us clear that the main and real attack on the award was the ineligibility of Shri Gupta to Chioccupy the post of a Judge of the Labour Court, in the discharge of whose functions the award was rendered by him. The relief of certiorari asked for by the writ petitioner was certainly inappropriate but by. clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case. There is no magic in the use of a formula. The facts necessary for challenging to his appointment is expressly made on the ground that he was not qualified to hold the post of a Judge of the labour Court."  [73 DLR (AD) (2021) 109]

Efficacious Remedy

It is contended that respondent No.1 could avail the opportunity of filing of an appeal before appropriate authority for listing her name in the MPO Having given our anxious consideration to the facts and circumstances of the case, we are of the view that filing on an appeal is not an efficacious remedy and the present writ petition filed by respondent No.I was maintainable. [73 DLR (AD) (2021) 298]

In the case of Government of Bangladesh and other vs Jamaluddin, 20 BLC (AD) 135 it has been held that admittedly, the authority concerned did not assign any reason for excluding the names of the educational institutions from the list of MPO nor did they afford any opportunity to educational institutions of being heard. Therefore, the High Court Division rightly declared the action illegal. [73 DLR (AD) (2021) 298]

Constitution of Bangladesh, 1972

Article 102-Influenced by one 

Held; This being the only cause for canceling the approval of the filing station of the writ-petitioner, we find merit the contention of the learned counsel appearing for the caveator that the Ministry on the being influenced by the owner by Titas Filling Station' directed the Bangladesh Petroleum Corporation to cancel the approval of the petitioner's one with malafide motive. Padma Oil Company Ltd. Vs. Md. Abdus Samad & Ors,(Crininal), 21 BLT (2013)-AD-154.

Article 102(2) 

Contempt Petition No. 188 of 2005, arising out of Writ Petition No. 6156 of 2005 moved under Article 102 (2) of the Constitution of the People's Republic of Bangladesh. Kaiser A. Chowdhury vs. M/s. Zakir Hossain Re-Rolling Mills (Md. Hassan Ameen J) (Civil) 5ADC 776

Company, a bonafide business concern doing business for over 50 years, was granted lease of Plot Nos. 118-121, Tejgaon Industrial Area, Dhaka for a period of 99 years by the then East Pakistan Government. Government of Bangladesh vs. M/S Eastern Industrial (BD) Ltd (Md. Joynul Abedin J) (Civil) 5 ADC 784

Article 102

The project was implemented by the officers and staff of the Directorate of Agricultural Extension placing their services on deputation against sanctioned posts as contained in project pro- forma approved by the Government and the writ petitioners were appointed as supporting hands for implementation of the first phase of the strengthening plant Protection Services (SPPS). Government of Bangladesh, represented by the Secretary, Ministry of Planning- vs-Jahangir Alam and ors. (Amirul Kabir Chowdhury J)(Civil) 3ADC 920

Article 102 

Seeking declaration that the properties described in the schedule attached to the plaint are properties of the Waqf Estate......(3)  

Seeking declaration as to legality of enrolment of the Waqf Estate and also challenging legality of inclusion of property. Abdus Quddus Administration of Waqf (M.. M. Ruhul Amin J)(Civil) 3ADC 91

Article 102 

The impugned letter of termination does not contain any stigma upon respondent No. 2 and on the face of it is a termination simpliciter and is well covered by the provision of section 19 of the Act. The termination was not a sequel to any trade union activity on the part of the respondent No. 2 nor does he claim that no termination benefit was not given to him. In this view of the matter, we find merit in the appeal. Adamjee Jute Mills Ltd. vs Chairman (Muhammad Abdur Rouf J) (Civil) 2ADC 128

Article 102 

The petitioners herein to show cause as to why the writ petitioners should not be treated at per with the accountants serving in the ministries and other organizations of the government. Govt. of Bangladesh represented by Secretary vs. Md. Abdur Rashid and the others (Amirul Kabir Chowdhury J) (Civil) 4ADC 611

Article 102 (2) (a) (ii) 

We have found that the writ petitioner respondents are not aggrieved persons and at the same time we have found that their rights will not be in any way affect- ed if the vacant posts of kanungos are filled up by recruitment under the exist- ing rules and pay scale. Secretary Ministry of Land vs Nur Mohammad Abu Zafar (Md. Hamidul Haque J)(Civil) 2ADC 87 

Article 102 (2) (a) (ii)

Writ of certiorari under Article 102(2)(a)(ii) of the Constitution authorizes the High Court Division to issue the writ for declaring an order or an act done or proceeding taken to be without lawful authority and of no legal effect. Thus the Court could interfere only when a person proceeded against has done the act or action taken is vitiated by an act of lack of jurisdiction or by being in excess of jurisdiction. The Superintendent James Finlay P.L.C. vs The Chairman, 2nd Labour Court (Mohammad Fazlul Karim J)(Civil) 2 ADC 57

Parties may adduce Additional Reply, if necessary 

It is therefore fit and proper in the interest of justice that the writ petition should be heard and disposed of on merit by the High Court Division. The petitioner respondent may still file an affidavit in reply and if the appellants so think they may also file a supplementary affidavit in opposition to bring their materials in reply to the writ petition up to date........(10). Bangladesh vs Md. Abdul Quader (Mustafa Kamal J)(Civil) 2ADC 918

Article 102 

The Appellate Tribunal may amend any order passed by it to correct any error apparent from the record either of its own motion or the matter being brought to its notice by any other Income Tax Authority. From the aforesaid provision it is clear that Commissioner of Taxes is included as one of the income tax authorities and as such we are of the view that the matter has been brought to the notice of the Tribunal by an authorised authority and as such there is no error in this regard. Akbar Hussain, Proprietor vs. Taxes Appellate Tribunal (Amirul Kabir Chowdhury J) (Civil) 4ADC 493 

Article 102 

Cancelling the temporary appointment of the petitioner as the Nikah Registrar and appointing the respondent No.4 as permanent Nikah Registrar of No.2 Khan Marich Union under Bhangoora Upazila District Pabna as contained in Annexure-F to the writ petition Md. Tarique Bin Shukur vs. Government of the People's Republic of Bangladesh (Mohammad Fazlul Karim J) (Civil) 4 ADC 557 

Constitution of Bangladesh, 1972 

Article 102(2)

Administrative Fairness-The concept of administrative fairness has gained considerable significance and importance. It requires an administrative body to apply its mind while taking a decision on a matter which affects a person's right. The "duty to act fairly" is being increasingly endorsed and applied by the Courts all over the world in deciding issues involving executive actions. [73 DLR 423]

Article 102

Ir. Moinul Hossain, Senior Counsel, appearing for the petitioner, submits that the case property is owned by the Dhaka Improvement Trust renamed as Rajdhani Unnayan Kartipakha (RAJUK) and Mrs. Atia Siddique took lease of the same for 99 years and in terms of the lease, the lessee constructed 'pucca' building and had been in posses- sion of the same and that the lessee was never an Indian Citizen, or of any foreign State and nothing had been done by her during liberation was to the prejudice of the Government of Bangladesh. So, under no stretch of imagination, the property can be declared or vested in the Government of Bangladesh under P.O.16/72 dated 26.02.1972. He further submits that the original lessee Mrs. Atia Siddique constructed a two storied building in the case premises and thereafter leased it out for 5 years to Indian High Commis- sion for Bangladesh and on 14.12.1970 she according to Mohammadan Saria out of love and affection gifted the case property to her full sister Mrs. Zakia Doha by handing over the title deeds, documents and the donee, petitioner Zakia Doha accepted and thereafter, the donor left for U.K. where her husband was living and never to returned again and the gift was accepted and posses- sion of the gifted property was taken over and gift being between two full sis- ter, relation of consanguinity, was valid, legal and irrevocable, so this property can never be treated as abandoned under P.O.16/72. His further submission is that the petitioner's whereabouts was never an issue and the petitioner was very much in Bangladesh and it was known to the Government of Bangladesh also and the property was never abandoned property under P.O.16/72. Mrs. Zakir Doha vs. Rajd- hani Unnayan Kartipakha (Md. Abdul Aziz J) (Civil) 9 ADC 961

Article 102: Legitimate expectation

Legitimate Expectation' may also arise from the express conduct of Govern- ment, its functionaries and other public or statutory authority as happened in the instant case. It is always expected that the Government and the other public and statutory functionaries shall act fairly and reasonably with a citizen or a person and the Court shall definitely in- terfere in a matter if it is found that the Government and the other public and statutory functionaries failed to act fairly and reasonably as per the dictate of the statute in denial of the legitimate expectation of such citizen or person. Government of Bangladesh vs. Satellite Fishing Ltd (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 325

Article 102 

From the impugned judgment and order, it appears that the learned Judges of the High Court Division on consid- eration of the facts stated in the writ pe- tition, in the supplementary affidavit and the annexures annexed thereto came to the finding that the petitioner was removed from his service illegally by violating the terms and conditions of his service as embodied in his appoint- ment letter and nonetheless fraudulently by manufacturing the impugned Memo No.মশিবিম/ শাঃউঃ-৭/২৮/ ৯৬-৯৭ (অংশ-১)-২০৬/১(২) dated 02.08.1999, so in the eye of law, the petitioner was in service as the Project Director at the pay scale of the Deputy Project Director. The learned Judges further found that the refusal dated 23.03.2003 by the Ministry to reinstate the petitioner in his service was illegal and without lawful authority. Government vs. Nasirur Rah- man (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 35

Article 102

Mr. Abdur Rab Chaudhury, the learned Counsel, appearing for the petitioners, submits that the petitioners were se- lected for final appointment in compli- ance with the rigorous provisions of Regulations 741(c) of the Police Regu- lations of Bengal for direct appointment of Sub-Inspectors and the Selection Board was under legal obligation to send the list of selected candidates to the Principal, Police Training College for issuance of their appointment letters and the Inspector General of Police acted in an arbitrary and malafide man- ner in canceling the entire list when ob- jection was raised in respect of only 19 male and 4 female candidates. Hu- mayun Kabir vs. Ministry of Home Af- fairs (Md. Abdul Aziz J) (Civil) 10 ADC 51

Article 102

Against the refusal order contained in Memo No.Kha. Sha. U. Bu: / E: Shaa: Bali: 27/02/110 dated 19.07.2005 and No.Kha. Sha. U. Bu: / E: Shaa: Bali: 28/02/109 dated 19.07.2005 is- sued by the respondent No.3 dated 19.07.2005 the petitioner filed Writ Pe- tition No.5905 of 2005 and Writ Peti- tion No.5906 of 2005 before the High Court Division. The judges of the High Court Division after hearing by orders dated 21.08.2005 issued Rules Nisi and directed the parties to maintain status- quo provided the petitioner pays the regular royalty. During pendency of the Rules one Md. Shawkat Ali being appli- cant filed an application before the High Court Division for addition of party as respondent No.9 and after hearing the Judges of the High Court Division were pleased to allow the applications and added him as respondent No.9 in both the writ petitions. Thereafter the said added respondent No.9 filed an applica- tion for discharging the Rule and after  hearing both the parties their Lordships were pleased to discharge both the Rules by the impugned judgment and order dated 22.07.2008 and hence these leave petitions by the petitioner. Md. Badaruddin VS. Government of Bangladesh (Md. Muzammel Hossain J(Civil) 10 ADC 94

Article 102

It appears that the impugned order was passed as back as on 10.08.2011 with the direction to dispose of the applica- tion filed by the petitioner within 30(thirty) days of the receipt of the said order which expired long before. It fur- ther appears that the leave petitioner was a contesting candidate for the post of Chairman of No.8, Kuti Union Parishad within Kasba, if he has any grievance, he can ventilate the same by filing an election dispute before the con- cerned Election Tribunal. Md. Moklesur Rahman vs. Md. Nozrul Islam (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 185

Article 102

We have also considered the report of the enquiry committee constituted by BMET as quoted in the judgment. We do not find any misreading of the annexures to dislodge the findings of the High Court Division that before passing the im- pugned order, inquiry was held which found the petitioner guilty of practising fraud upon respondent No.5 and annex- ure-'G' and 'H' together showed that there was substantial compliance of the prin- ciple of Audi Alteram Partem. Rahmania Travels Limited vs. Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 187

Article 102

We failed to see any rationale behind the prayer of the petitioner in reinstating him in the service of BJMC when he was neither removed nor dismissed by BJMC. Since the petitioner ceased to be an employee even of the disinvested Jute Mills, the question of his reinstate- ment in BJMC does not arise at all. And the learned Judges of the High Court Division were not at all required to enter into the merits of the claim of the peti- tioner and thus to waste the valuable public time. Bangladesh Jute Mills Cor- poration vs. Md. Mahbubur Rahman (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 205

Article 102

The High Court Division came to a finding that there was no scope for set- ting aside the auction sale without pay- ment of decretal amount and that admittedly the petitioner deposited only 5% of the price of the auction sale and that the petitioner did not pay the decre- tal amount as mentioned in the procla- mation of sale according to law. Mohammad Golam Azam vs. Govern- ment of Bangladesh (Syed Mahmud Hossain J) (Civil) 10 ADC 41

Article 102

66. Accordingly we hold that since the Constitution is the Supreme law of the land and the Martial Law Proclama- tions, Regulations and Orders promulgated/made by the usurpers, being ille- gal, void and non-est in the eye of law, could not be ratified or confirmed by the Second Parliament by the Fifth Amend- ment, as it itself had no such power to enact such laws as made by the above Proclamations, Martial Law Regulation or orders.

There is no such law as Martial Law or no such authority as Martial Law Au- thority in Bangladesh. As such, any per- son who declares Martial Law and ousts an elected government or attempts to do so, he and his associates would be liable for high treason against the Republic of Bangladesh.

The 'suprema lex' is for the salus pop- uli', not for the usurpers and violaters of the Constitution of the 'populi' and no condonation is allowed for those who violate the Constitution which is the worst kind of offence that may be com- mitted against the Republic and its peo- ple.

The privilege of bail is not available on a petition in the nature of certiorari, however, in this appeal, the prayer for bail of the appellant is allowed as an ex- ception, under the inherent jurisdiction of this Court, till the commencement of the trial, to the satisfaction of the con- cerned trial Court. In the result, the ap- peal is allowed without any order as to costs. Siddique Ahmed vs. Government of Bangladesh (A.B.M. Khairul Haque CJ) (Civil) 10 ADC 811

Article 102

Rejecting the contention of the writ-pe- titioner that the Review Panel did not have the authority to pass any order or direction and that it could only advise the procuring (purchasing) entity and consequently, the decision of the Re- view Panel was liable to be set aside, the High Court Division having considered the provision of Rule 60(s) found that though the Review Panel used the words direction and order instead of ad- vice or recommendation, it would not make any difference regarding the prop- erty of the impugned decision and that "the decision of the Review Panel shall be final and that all relevant parties shall act as per the aforesaid decision." The High Court Division noted that Rule 93(11) of PPR-2008 has ensured partic- ipation of minimum 3 prequalified bid- ders stating that the procuring (purchasing) entity can amend the pre- qualification document and issue new advertisement, if necessary and that par- ticipation of more bidders in the bidding process would ensure fair competition which would increase competitiveness in the bidding process and ultimately benefit the country. BTCL vs. Netas Telekommunikasyon A.S. Turkey (Syed Mahmud Hossain J) (Civil) 10 ADC 909

Article 102

The writ petitioner-respondent No.1 Md. Amirul Islam filed the above writ petition challenging the order of his discharge from service vide Memo No. টিি পবিএস/১০০.২৫/২০০৭/১৭৩৩ dated 31.03.2007. Md. Obaedur Rahman vs. Md. Amirul Islam (Nazmun Ara Sultana J) (Civil) 8 ADC 642

Article 102

As noticed above, the learned Special Judge framed charge against the ac- cused respondent under sections 409/420 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 read with section 156 of the Customs Act. Therefore, the submission that as the allegations made in the FIR also attracted the provisions of Emer- gency Power Rules, the writ petitioner was compelled to make the writ petition without availing a petition under section 561A of the Code of Criminal Proce- dure is devoid of substance. The High Court Division also noticed that there is no scope for application of provisions of Emergency Power's Rules in the trial of the case.. ..(6) Anti Corruption Commission vs. Md. Enayetur Rahman (S.K. Sinha J) (Civil) 8 ADC 691

The Constitution of Bangladesh

Article 102

Writ petition in the High Court Division seeking a direction for regularizing their service against the posts advertised on the doctrine of legitimate expectation.

Their case in short is that they entered in the service of Bangladesh Technical Ed. ucation Board as Master Roll workers Bangladesh Technical Education Board vs. Md. Anamul Haque (S.K. Sinha J) (Civil) 8 ADC 725

The Constitution of Bangladesh Article 102

The High Court Division upon hearing the parties by the impugned judgment made the rule absolute on the reason- ings that the writ petitioners are stand- ing on the same footing with Block Supervisors and that the writ petitioners were discriminated in not giving them higher scale which they were entitled to. Bangladesh Water Development Board vs. Md. Shafiqul Islam (S.K. Sinha J) (Civil) 8 ADC 752

Article 102

It is contended on behalf of the petition- ers that the High Court Division erred in law in directing to reinstate the writ petitioner in the service of the Corpora- tion in failing to consider that he was terminated from the service for miscon- duct under the provisions of the Service Regulation of the corporation. Chair- man, Bangladesh Parjatan Corporation vs. Md. Shafiqul Islam (S.K. Sinha J) (Civil) 8 ADC 767

Article 27 and 102

Rule 55(2) of the Chattagram Bandar Katripakka Karmachari Chakuri Pro- bidhanmala of 1991 provides that notwithstanding anything contained in this Probidhanmala, the competent au- thority may terminate the service of any employee without assigning any reason subject to giving notice of ninety days or in lieu thereof, salary of ninety days, that as per the provision of Rule 55(2) of Probidhanmala. Arun Chandra Das vs. Chittagong Port Authority (S.K. Sinha J) (Civil) 8 ADC 770

Article 102

That the Promotion Rules of 2002 con- taining marking system for academic qualification cannot be applied in case of promotion of the petitioners who had been serving as Deputy Secretaries at the time of framing of this Promotion Rules.

Molla Md. Anwarul Hauqe vs. Govern- ment of the People's (Nazmun Ara Sul- tana J) (Civil) 8 ADC 782

Article 102

Mr. Murad Reza, learned Additional At- torney General appearing on behalf of the respondent-petitioners, submits that the government sealed the main en- trance of the factory premises including the godown as part of its lawful obligation to obey the order of status-quo passed by the High Court Division in public interest and that the High Court Division failed to consider the same in passing the impugned order directing the respondent-petitioners to release im- ported wheat alleged to have been stored by respondent No.6 and as such the impugned order should be set aside. Government of Bangladesh vs. Dhaka Match Industries (Syed Mahmud Hos- sain J) (Civil) 8 ADC 788

Article 102

The High Court Division noticed that the petitioner claimed that his date of birth is 8.4.1946 as per annual confiden- tial report prepared and maintained by the respondents (appointing authority) and the annual confidential report shows that the date of birth of the petitioner is 8.4.1946. The Managing Direc- tor vs. Md. Ahsanullah (Sved Mahmud Hossain J) (Civil) 8 ADC 798

Article 102

Peace Accord was signed and executed to facilitate the public interest in gen- eral, specially the people living in the Chittagong Hill Tracts in order to bring peace and harmony in the said region of Bangladesh so that the tribal and non- tribal people of Bangladesh living in the said area could co-exist there. It was also done to give effect to the constitutional mandates for advancement of backward sections of the population and establishment of efficient local govern- ment institutions. The writ petition in- volved political and disputed question of facts and, as such, the same could not be reviewed by the High Court Division as it purported to challenge the execu- tion, signing and implementation of the Chittagong Hill Tracts Accord, 1997 dated 02.12.1997 (hereinafter referred to as the Peace Accord). Peace Accord was enacted taking into account the then political situation which existed in the Chittagong Hill Tracts and, as such, that cannot be the subject matter of judicial review of this Court. Bangladesh vs. Md. Badiuzzaman (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 811

Article 102(2)

The question of jurisdiction cannot be conferred to a court/ tribunal if it is found that the court/tribunal has no jurisdiction to try the suit/case as the case may be. 29 BLC (AD) (2024) 1

Article 102

The voter list of Jhalokathi Pourashava was prepared and published for each Ward, and in June, 2010 it was detected that about 400 families of "Abason Project Nos. 1 and 2" established by the then Government on the land of Uttar Kistakathi under Ward No.7 of Pona- balia Union Parishad have been enjoy- ing the facilities of Jhalokathi Pourashava though the 'Abason Project Nos.1 and 2' had not been included in the Pourashava by the Gazette Notifica- tion published on 2nd July, 1998. The Councilor of Ward No.7, Jhalokathi Pourashava found that Kistakathi area, on which 'Abason Project Nos.1 and 2' had been established, is part of Ward No.7 Ponabalita Union Parishad, but in- habitants of said Abason Project Nos. 1 and 2 had been included as voters of Ward No.7 of the Pourashava. The said issue was brought to the attention of Pourashava and a resolution was taken on 15th July, 2010 authorizing the writ petitioner for taking steps in that regard and subsequently the writ petitioner for- warded the resolution to the writ re- spondent No.2 requesting it to correct the voter list. However, the writ respon- dent Nos.2-5 without excluding the vot- ers of Uttar Kistikathi area declared the election schedule on 2nd December, 2010 for holding election of the Pourashava, and 672 voters have been added in Ward No.7 of Jhalokathi Pourashava illegally. Afzal Miah vs. Abdul Halim Gazi (S.K. Sinha J) (Civil) 8 ADC 824

Article 102

The petitioner has come in Court for ju- dicial review of the orders/decisions of the Bangladesh Bank intimating the Chairman of the Board of Directors of the Bank that as Prof. Yunus has been continuing as Managing Director even after surpassing the retirement age of 60 years violating the service Regulations, his continuation as per decision of the Board for indefinite period without ap- proval of the Bangladesh Bank is not legal and that he has not been legally working as Managing Director of the Bank. Professor Muhammad Yunus vs. Bangladesh (S.K. Sinha J) (Civil) 8 ADC 834

Article 102

The points involved in these appeals are whether the Rajdhani Unnayan Katri- pakha (RAJUK) can remove unautho- rized constructions under the Building Constructions Act, 1952, the rules framed thereunder, the Town Improve- ment Act, 1953 and the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordi- nance, 1970 without demarcating the lands by metes and bounds by a prop- erly constituted partition suit and whether the High Court Division is jus- tified in restraining the Government and the RAJUK from removing the unau- thorized constructions till the disputed property is partitioned by the civil Court. Government of Bangladesh vs. Md. Gias Uddin Chowdhury (S.K. Sinha J) (Civil) 8 ADC 879

Article 102

The respondent No. 1, (writ petitioner) a teacher of Fulbaria College, My- mensingh instituted Writ Petition No.3746 of 2003 in the High Court Di- vision seeking a declaration to the effect that the decision for demotion of the writ petitioner by the writ respondents to the post of lecturer from the post of Assistant Professor of Fulbaria College, Mymensingh and degrading his monthly pay scale from Tk.7,200/- to Tk.6,150/- to be declared without lawful authority. Principal, Fulbaria College vs. Md. Helaluddin (S.K. Sinha J) (Civil) 8 ADC 941

Article 102

The moot question involved in this pe- tition is whether, the High Court Divi- sion was correct in making the rule absolute in determining the terms and conditions of service of the employees of Bangaldesh Krishi Bank; which is in- cluded in the schedule of the Adminis- trative Tribunal Act, 1980, and secondly, whether the High Court Divi- sion was correct directing the petition- ers to prepare a joint gradation list on the basis of the gradation list dated 19th November, 1998 by maintaining the seniority of respondents according to the recommendation of the Managing Director of the Bank and to issue viva voce card upon the respondents jointly for the purpose of their promotion along with the Senior Officers of Bangladesh Krishi Bank? Bangladesh Krishi Bank vs. Arun Chandra Banik (S.K. Sinha J) (Civil) 8 ADC 952

Article, 102

The moot points involve in this petition are whether the respondents are entitled to absorb in the revenue set up who were appointed purely on temporary basis and whether after the completion of ISSA project and discharging the em- ployees, they can be reemployed on reg- ular basis by giving continuity of their service. Bangladesh represented by the Secretary vs. Md. Harunur Rashid (S.K. Sinha J) (Civil) 8 ADC 956

Article 102

The Bangladesh Petroleum Corporation communicated a letter to the petitioner to cancel the writ petitioner's approval for setting up filling station in pur- suance of concerned Ministry's letter under memo dated 14th July, 2008. In the impugned letter the Bangladesh Pe- troleum Corporation has assigned no reason other than the reference of the concerned Ministry's letter. The writ-pe- titioner annexed the said letter, which revealed that the Ministry requested the Petroleum Corporation to cancel the ap- proval letter on basis of a complaint made by one 'Titas Filling Station' alleg- ing that the writ petitioner's filling sta- tion was set up towards 400 meters north of 'Titas Filling Station' Padma Oil Company Limited vs. Md. Abdus Samad (S.K. Sinha J) (Civil) 8 ADC 960

Article 102

It appears that the writ-petitioner is an elected donor member of the Governing body of Jhargram Fazil Madrasa, Bag- mara, Rajshahi. This committee was duly approved by the Bangladesh Madrasa Education Board on 14.08.2006. On an allegation of misap- propriation, the principal of the madrasa, the added writ-respondent No.6, was suspended by the Governing body by its resolution dated 04.01.2005. This decision was challenged in Other Class Suit No.59 of 2005, filed by the writ-respondent No.6, in the Court of Assistant Judge, Bagmara. In the mean- time, the Upa-Zilla Nirbahi Officer, the respondent No.4 who is the ex-officio Chairman of the Governing body, by his office order dated 19.04.2007, withdrew all allegations against the suspended principal and directed his reinstatement as the principal of the madrasa (Annex- ure-E to the writ petition). The legality of this Order has been challenged in the writ-petition, on the grounds inter-alia that the respondent No.4, passed the im- pugned order not in his capacity as the Chairman of the Governing body but as the Upa-Zilla Nirbahi Officer, an exec- utive of the Government. Md. Abdus Samad vs. Md. Ismail Hossain Shakhider (A.B.M. Khairul Haque CJ) (Civil) 8 ADC 1000

Article 102

The petitioner No.4 contested the petition, stating inter alia that the respon- dents were appointed purely on tempo- rary basis against a project with clear stipulation that the duration of their em- ployment will remain valid till the com- pletion of the project. In view of the above, the respondents have accrued no right to claim regularization of their service and thus, the writ petition is not maintainable. Government of Bangladesh vs. Mini Begum (S.K. Sinha J) (Civil) 8 ADC 1008

Article 102 

Except for challenging the virus of any law or of corum non judice, no writ could be maintained in respect of terms and conditions of any person in the service of the Republic. Bangladesh vs Mr. A. K. M. Enayet Ullah (Syed J. R. Mudassir Husain C J)(Civil) 2ADC 623 

Article 102

Challenging the above decision of the authority, the petitioner obtained the Rule Nisi from the High Court Division which made the Rule absolute and de. clared Annexure-'H' to the Writ Petition to have been issued without lawful au- thority. The salient findings of the High Court Division are as follows:

The prayer of the petitioner for correc- tion was refused on the ground of delay of 30 years and no other reason was as- signed in the impugned order rejecting the prayer of the petitioner. The author- ity made a correction in respect of the name of one Md. K.M. Sayed after about 30 years and the date of birth of respondent No.5 was corrected as per Secondary School Certificate after 32 years. The reason assigned in the im- pugned order refusing his prayer was capricious, arbitrary and without any application of mind. The petitioner ob- tained a duplicate Secondary School Certificate as the original was lost and in this process he had to spend enough time collecting the same. The word "Fakir" in his name as well as in his fa- ther's name had rather complicated the case of the petitioner and in such a po- sition, the word 'Fakir' should not have been used after both the names to avoid such complication in the certificate, had it been a fake one. The existence of the word 'Fakir' in the name of the peti- tioner and also in the name of his father in the certificate proved its genuineness. The Chairman BFIDC vs. Md. Hatem Ali (Syed Mahmud Hossain J) (Civil) 9 ADC 169

The Constitution of Bangladesh 

Article 102

Mr. M. K. Rahman, learned Advocate along with Mr. Khurshid Alam Sarker, learned Advocate, appearing for the writ petitioners, submits that the High Court Division has failed to hold that the em- ployees previously absorbed as benefi- ciaries of the judgment of the High Court Division in writ petition No.1522 of 2004 heard along with 99 other writ petitions do not belong to the same class and are not similarly situated or on an equal footing with the writ petitioners and as such, the impugned judgments and orders passed by the High Court Di- vision should be set aside. He further submits that the High Court Division ig- nored the fact that no express promise/undertaking/representation was ever made by the writ-respondents and as such, the writ-petitioners are not en- titled to be absorbed in LGED. Chief Engineer LGED vs. Sanjoy Kumar Halder (Syed Mahmud Hossain J) (Civil) 9 ADC 174

Article 102

Mr. Syed Amir-ul Islam, the learned Senior Counsel appearing for the appel- lant has advanced his argument in two lines. His first line of argument is that the petitioner was never a government employee even while he was serving under IRDP, that the IRDP was not a government owned organization; rather it was an autonomous organization and the petitioner was appointed as Thana Project Officer by the authority of that non-government organization. Bangladesh Rural Development Board vs. Mohammad Shahjahan (Nazmun Ara Sultana J) (Civil) 9 ADC 195

Article 102

The facts necessary for disposal of this Civil Petition for Leave to Appeal, in short, are that one Md. Hossain Ali was allotted the plot in question by the Gov- ernment by a registered deed of lease dated 06.04.1962 for a period of 99 years. The said lessee constructed a res- idential house in the said plot and had been possessing the same. Bangladesh represented by the Secretary vs. Nazirul Hog (Nazmun Ara Sultana J) (Civil) 9 ADC 206

Article 102

The High Court Division, on hearing both the sides, made the rule absolute holding that the impugned circular No.10, so far it relates to its retrospec- tive effect, has not been made under any lawful authority and as such void and not applicable to the petitioner's case. In this impugned judgment the High Court Division also observed that the peti- tioner was eligible for promotion since 2001 and as such he is entitled to sen- iority over his juniors and to all finan- cial benefits from the date he was first superseded by his juniors. Bangladesh Bank vs. Sukamal Sinha Choudhury (Nazmun Ara Sultana J) (Civil) 9 ADC 218

Article 102

Whether the learned Judges of the High Court Division erred in law in having failed to take notice of the fact that the writ-petitioner had no locus standi to file the present writ petition for enforce- ment of an incomplete and inconclusive contract of lease and the writ petition. was not maintainable, and whether the case bristles with disputed and compli- cated question of fact, which cannot be decided in writ jurisdiction. Engineer A. B. Siddique vs. Kazi Akramuddin (Syed Mahmud Hossain J) (Civil) 9 ADC 279

Article 102

In all the petitions the writ petitioners stated that they prayed for absorbing in the revenue set up but their prayers were unheeded to despite assurances given by the authority. The High Court Divi- sion noticed the Rules framed by the Government for regularizing the service in the revenue budget in respect of those officers and employees who are work- ing in the development projects and to determine their seniority by Gazette No- tification dated 28th June, 2005 and the decision of the ECNEC dated 10th June, 2008, and observed that the rules and the decision of ECNEC are sheet anchor for resolving the issues involved in the petitions. Chief Engineer LGED vs. Sayeda Shahana Aktari (S.K. Sinha J) (Civil) 9 ADC 287

Article 102

The High Court Division, on hearing the learned Advocates of both the sides and considering the facts and circum- stances and relevant Service Rules and also the reports of Medical Boards found that the petitioner was capable of working as Berthing Master and as such his release from service without offer- ing him the post of Berthing Master and without giving him any opportunity of being heard has been malafide, arbitrary and illegal. The High Court Division, accordingly decided also that the peti- tioner was entitled to remain in service till completion of 57 years of his age i.e. till 28.10.2004 and as such the peti- tioner is entitled to pension/gratuity and other benefits along with LPR and un- paid arrear of pay from August, 2000 till the date of his retirement. ..........(5) Chittagong Port Authority represented vs. Md. Azizul Islam Chowdhury (Naz- mun Ara Sultana J) (Civil) 9 ADC 351

The Constitution of Bangladesh 

Article 102 and 117

The High Court Division, upon hearing the learned Advocates for the parties and examining the above mentioned Rules framed in 1981, 1998 and 2000 held that since the services of all the petitioners were absorbed and they were reap- pointed in their respective nationalized colleges before promulgation of Rules of 2000 while the Rules of 1981 was still in operation the services of the petition- ers and other teachers like them cannot be guided by the Rules framed subse- quently in the year 2000 by giving it ret- rospective effect from 1978; that since the petitioners were reappointed in their respective posts while the Rules of 1981 was prevailing their services should be guided as per that Rule of 1981. Govern- ment of Bangladesh vs. G. M. M. Mizan- uar Rahman Bhuiyan (Nazmun Ara Sultana J) (Civil) 9 ADC 381

Article 102

At the time of issuance of the Rule on 19.10.2009 the parties were directed to maintain status quo in respect of Ad-hoc Committee of the concerned school for a period of 3(three) months. M. Akbar Ali vs. Government of Bangladesh (Muhammad Imman Ali J) (Civil) 9 ADC 433

Article 102

The High Court Division did not accept their contention observing "it is true that even legitimate expectation does not by itself give rise to any right in absence of any express promise or representation or by established policy or settled prin- ciple but facts remain that the matter of regularization of the existing Assistant Engineers was pending for a long time and the matter was processed by the de- partment within the knowledge of the petitioners and at no point of time prospect of regularization was nega- tived from the higher authorities and therefore, the petitioner had been ex- pecting their regularization and in view of the admitted position that ultimately regularization was done further justifies the cases of the petitioners legitimate expectation of being considered along with the proposed Assistant Engineers who have been proposed to be regular- ized". The High Court Division further observed that the "the regularization of other 99 persons has a presumption of correctness and respondents do not say that it was done illegally. From the reply to affidavit-in-opposition it appears that the respondents have already kept 98 posts of Assistant Engineers vacant and therefore in fitness of things they should consider the present cases, in the same way as has been done in the cases of 99 Assistant Engineers as in Annexures-F and F-1 to the writ petition in accor- dance with law". Chief Engineer LGED vs. Kazi Mizanur Rahman (S.K. Sinha J) (Civil) 9 ADC 541

Article 102

With regard to the argument of the learned Counsel for the appellant that the degree of BSEEE obtained by the respondent No.1-writ petitioner from IUBAT is not mentioned in the circular and therefore, does not confer the ben- efit of the circular to the respondent No.1-writ petitioner, we are of the view that such argument is not tenable, since IUBAT is an educational institution recognised by the University Grants Commission and is operating in accor- dance with relevant laws and regula- tions. It cannot therefore be said that the qualification obtained is not acceptable. If the concerned authorities wish to ex- clude qualification from any particular educational institution, then they must do so by clear provision of law. More- over, from the facts of the instant case we find that the respondent No.1-writ petitioner obtained the qualification of BSEEE from IUBAT after getting due permission from DESA. It cannot now be said that the qualification is not ade- quate for the purpose of promotion. Dhaka Electric Supply Authority vs. Md. Hanif (Muhammad Imman Ali J) (Civil) 9 ADC 559

Article 102

These appeals involve the question as to whether the work-charged temporary employees of Housing and Public Works Department of the Government of Bangladesh who have been working for the last nearly 20 years or more, have any legitimate expectation to be made permanent or not. Government of Bangladesh vs. Md. Jahangir Alam (A.B.M. Khairul Haque CJ) (Civil) 9 ADC 600

Leave was granted to consider the ques- tion whether the High Court Division was justified in giving full relief to the writ petitioners without affording the appellants an opportunity of being heard and secondly, whether the unreported decision of this Division in Civil Peti- tion Nos.63-67 of 1999 disposed of with other petitions by judgment dated 27th May, 1998 relied by the High Court Di- vision is applicable to the facts of this case and finally, whether the writ-peti- tioners have acquired any right of ap- pointment in the service of the Republic on the basis of alleged recommendation, annexure-E, to the writ petition. Gov- ernment of the People's vs. Md. Shahja- han (S.K. Sinha J) (Civil) 9 ADC 631

Article 102

During pendency of the writ petition, the writ respondent No.8, namely, Haji Jamir Uddin died and one Md. Ibrahim claiming himself as Secretary, Upakulia Bahumukhi Samabaya Samity Limited was added as writ respondent No.9. He filed an affidavit-in-Opposition stating that they filed an application to the Deputy Commissioner as well as the Ministry for obtaining lease of the case land and on consideration the Govern- ment has granted lease to them and no illegality has been committed thereby. Aminur Rashid Chowdhury vs. Govern- ment of Bangladesh (Muhammad Imman Ali J) (Civil) 9 ADC 650

Article 102

The respondent Nos. 1 to 15 herein filed the above mentioned writ petition chal- lenging the respondents' (present peti- tioners) action of demolition of their houses which they allegedly con- structed on their leasehold lands and also praying for a direction to imple- ment the recommendation of the re- spondent No.4 for giving permanent lease of this land to the writ petitioners. Rule was issued in that writ petition. Government of the People's vs. Mozam- mel Haque (Nazmun Ara Sultana J) (Civil) 9 ADC 674

Article 102

The respondent Nos. 1 to 13 herein filed the above mentioned writ petition chal- lenging the order under memo No. বাপউবো/পার/হি-৮/৬৭৩/৮৫/৮৩০৮ dated 07.12.2006 issued by the respondent No.4 of the writ petition. The case of the writ petitioners, in short, was that Bangladesh Rural Development Board was created by the Bangladesh Rural Development Board Ordinance, 1982 by dissolving Integrated Rural Develop- ment Programme (shortly, IRDP). Bangladesh Rural Development Board vs. Haider Ali (Nazmun Ara Sultana J)(Civil) 9 ADC 686

Article 102

Mr. Abdul Matin Khasru, the learned Counsel for the petitioners has argued to the effect that the High Court Divi- sion has committed error in not taking into consideration the fact that the prop- erty in question was transferred by the original allottee in favour of the vendors of the present petitioners on 01.02.1987 and thereafter the property was enlisted as abandoned property by gazette noti- fication dated 26.12.1988. Md. Afzal Hossain vs. Bangladesh represented by the Secretary (Nazmun Ara Sultana J) (Civil) 9 ADC 694

Article 102

The High Court Division on considera- tion of the materials on record though noticed that there is no provision in the contract document for payment of local agent's commission, came to the conclu- sion that by annexures-D, E, E-1, J and J-1 the Bangladesh Bank had recom- mended for payment of agent's commis- sion, that though the writ petitioner's principal accepted the terms and condi- tions of the contract but the contract document relates to the foreign currency component of the contract and thus there is no legal bar in making payment to the local agent, that the condition for payment of local agent's commission was accepted earlier while accepting the bid of the supplier and that the refusal by the Government to pay such com- mission is unlawful. Government of Bangladesh vs. M/s. Excellent Corpora- tion (S.K. Sinha J) (Civil) 9 ADC 734

Article 102

The High Court Division upon hearing the parties and considering some deci- sions of the High Court Division as well as this Division was of the view that "It is not clear to this Court why similarly situated individuals as the petitioners would somehow be disentitled from having their expectations be similarly recognized and met particularly in the absence of declared and ascertainable objective criteria or an attempt at rea- sonable or permissible classification otherwise justifying the petitioners ex- clusion from such exercise" and that "the exclusion so made of the petition- ers to be arbitrary and without any ob- jective basis". Government of the People's vs. Md. Harun-or-Rashid (S.K. Sinha J) (Civil) 9 ADC740

Article 102

The High Court Division heard 21 writ petitions out of which the above 15 leave petitions arose and by the im- pugned judgment made the rules ab- solute observing that the writ-petitions are maintainable; that as the writ peti- tioners were working for several years, they couldn't be terminated from their services suddenly by taking recourse to regulation 52(1); that the termination of huge number of employees shows ad- ministrative arbitrary high handedness exercise of power; that the High Court Division in earlier writ petitions on sim- ilar facts set aside the orders of termi- nation and directed the petitioners to reinstate those employees and that there is no ground to discriminate the writ pe- titioners. Bangladesh Biman Airlines Limited vs. Emran Ahmed (S.K. Sinha J) (Civil) 9 ADC 745

Article 102

It is very clear from the above explana- tion of the word 'নির্মাণ সংস্থা' envisages a construction organization but appar- ently Gemcon Ltd. is neither engaged in construction nor maintenance of buildings, roads, highways and bridges. True it is that it manufactures SPC elec- tric poles which hold electric wires for transporting electricity but such func- tion would not bring it within the ambit of the word 'যোগাযোগ মাধ্যম'. Rather, the manufacture of SPC electric poles with cement, sand, stone, iron etc brings the company within the definition of 'প্রস্তুক কারক', National Board of Revenue vs. Lt. Col. Kazi Shahid Ahmed (A.Β.Μ. Khairul Haque CJ) (Civil) 9 ADC 752

Article 102

Its case in short is that the trawler in question was seized by the authority and it was sold in auction. The auction pur- chaser thereupon transferred the said trawler in favour of the respondent. Thereupon it renovated the trawler for the purpose of catching fish in the deep sea and thereafter it applied for a licence and permission required for the purpose of catching fish in the deep sea but the authority did not pay heed to it. Govern- ment of Bangladesh vs. Silver Sea Fish- ing Limited (S.K. Sinha J) (Civil) 9 ADC 755

Article 102

We do not find any reason on the part of the learned Attorney General to be ap- prehensive that if the judgment and order of the High Court Division in en- tertaining a dispute relating to an admis- sion test like the instant one is upheld, this may lead to a serious consequences in the administration of medical educa- tion as well as other education and hun- dreds of writ petitions would be filed inasmuch as every case has its own pe- culiarity and feature. As already stated hereinbefore in the instant case, the High Court Division entertained the writ petition and interfered in the matter as there were apparent errors and incon- sistencies between two bilingual sets of question papers as well as in the answer key to the English version affecting the fate of the children of the petitioners as to their admission in the MBBS/BDS course in the Government and Med- ical/Dental Colleges and in fact, those who were genuinely affected because of the apparent errors/anomalies/ inconsis- tencies in the question papers of the two versions, the Bangla and the English came before the Court and not the hun- dreds. In the context, the High Court Di- vision rightly entertained the writ petition. Government of Bangladesh vs. Md. Ghulam Mustafa (Md. Abdul Wah- hab Miah J) (Civil) 10 ADC 131

Article 102

From the judgment of the High Court Division it appears that the increase in the price of the land in question im- posed by the Ministry concerned was agreed to by the writ petitioner, but at that time the matter could not be con- cluded due to the fact that there was dis- pute regarding the land in question between two Ministries of the Govern- ment and ultimately the concerned Min- istry took the final decision regarding the allotment of the land in question in favour of the Samity (respondent herein). Director General, Bangladesh Railway vs. Sher-e-Bangla Market (Muhammad Imman Ali J) (Civil) 9 ADC 757

Article 102

It was contended by the appellant before the High Court Division that the Labour Court made the decision on guess with- out considering the fact that there was ample evidence on record to find that the respondent No.2 was guilty of the offence charged and that the Enquiry Officer followed the procedure laid down in the Employment of Labour (Standing Orders), Act (the Act) in find- ing the respondent No.2 guilty of the charges and that Enquiry Officer held enquiry in presence of the respondent No.2 and afforded him all opportunity to cross-examine the witness and also to defend him, that Labour court was in error in holding that the complaint case was maintainable since there was suffi- cient materials on record to show that the second party was an officer holding managerial as well as supervisory pow- ers, that the judgment of the Labour Court is not sustainable since the same has been made disregarding the estab- lished principle that no court shall inter- fere with the findings of domestic enquiry unless gross illegality purported to have been committed is noticed and that there is nothing on record to show that any gross illegality has been com- mitted in holding enquiry against the Respondent No.2 causing prejudice to him in any way, that respondent No.2 without any plausible cause remained absent during enquiry and as such he can not be allowed to take benefit out of his default. Pubali Bank Limited vs. Chairman, First Labour Court (Md Ruhul Amin J) (Civil) 9 ADC 966

Article 102

The High Court Division upon consideration of the materials on record no- ticed that during the long period of 5 months 23 days no formal charge was framed against the writ petitioner and that he was supposed to go on LPR on 30th December, 2009. He claimed that with a view to circumvent his appoint- ment to the post of Director General, he was suspended from the service. He was a verteran freedom fighter and there was no stigma in his service record. Bangladesh Livestock Research Insti- tute vs. Dr. Md. Jahangir Alam Khan (S.K. Sinha J) (Civil) 9 ADC 768

Article 102

We find from the Annexure-"C" to the writ petition, which was the impugned notice, that on local inspection it was found that the petitioners had filled the disputed land with 48,000 c.ft. of earth creating a road 15 feet wide and 80 feet in length towards their homestead thereby changing the nature and charac- ter of the land which was given to them by way of licence as agricultural land. Samerendra Samajpati vs. Government of the People's (Muhammad Imman Ali J) (Civil) 9 ADC 770

Article 102

The case of the writ petitioner, in short, was that while he was employed as As- sistant Manager (Local Purchase) in Bangladesh Biman Corporation (the Biman" in short) he received a notice being No.ACPA/15/P-32735/98/74 dated 23.03.1998 (annexure-B) to show cause as to why disciplinary proceeding should not be taken against him for causing huge financial loss to Biman in his self-interest and also for his finan- cial gain by overwriting and tampering 3 (three) indents whereby previous pur- chase price of Ivory Board Papers were increased. Bangladesh Biman Corpo- ration vs. Riaz Uddin Ahmed (Nazmun Ara Sultana J)(Civil) 9 ADC 811

Article 102

The High Court Division upon hearing the parties observed that there is no ev- idence or material with regard to filling up the lake in any way, that the ameni- ties such as park, play ground, school, mosque etc. are clearly marked in the layout plan, that the open space in front of Road No.20 does not appear to have been marked for any such purpose. Ms. Syeda Rizwana Hasan vs. Bangladesh (S.K. Sinha J) (Civil) 9 ADC 816

Article 102

Several employees of Bangladesh Water Development Board, as petitioners, filed the above mentioned Writ Petition No.3030 of 2009 against the present leave petitioners and others challenging the inaction of the respondents to imple- ment upgradation of their pay scales and also seeking for a direction to upgrade their pay scales in compliance with the guidelines and directives as contained in the circular dated 17.10.2006 issued under memo No. অম/অবি/(বাস্ত-৩) বেঃনিঃ (বিদ্যুৎ-৩) ২০০৫/১৫৭ by removing the dif- ferences and discrimination of pay scales between technical and non-tech- nical officers. Director Genera BWDB vs. Md. Aminul Islam (Nazmun Ara Sul- tana J) (Civil) 9 ADC 837

Article 102

The High Court Division upon hearing the parties observed that though there is no direction that the persons appointed under the project would be absorbed in the revenue setup after completion of the project, there is indication from an- nexure-D that they would be absorbed. Government of Bangladesh vs. Md. Abul Kalam Azad (S.K. Sinha J) (Civil) 9 ADC 855

The Constitution of people's Repub- lic of Bangladesh 

Article 102

Writ petition seeking a direction upon the appellants to absorb them in the service of the Republic to their respec- tive nominated posts of Sub-Registrar under the Ministry of Law, Justice and Parliamentary affairs as Ex-Mujibnagar employees as per nomination letter under memo dated 5th November, 1985 issued by the Ministry of Establishment. Government of the People's vs. Md. Shahjahan (S.K. Sinha J) (Civil) 8 ADC 463

Article 102

Challenging the order under memo dated 26th May, 2008 canceling their Monthly Pay Order (MPO) of the Min- istry of Education, Government of Bangladesh. Government of Bangladesh vs. Bikash Ranjan Talukder (S.K. Sinha J) (Civil) 8 ADC 471

Article 102

The Anti-corruption Commission insti- tuted a case with the Ramna police sta- tion against the writ petitioner, his wife and children on the allegations that in his wealth statement he concealed a sum of Tk. 12,37,83,927.65 which he kept in his name and other members of his fam- ily and thereby he has committed of- fence punishable under sections 26(2) and 27(1) of the Durnity Daman Com- mission Ain, 2004. Anti Corruption Commission represented vs. Μ.Α.Η. Salim (S.K. Sinha J) (Civil) 8 ADC 474

Constitution of Bangladesh, 1972 

Article 102(2)

Of course for selecting appropriate person from the locality the Principal shall send the proposal but it ought to have been in the form of a panel of minimum three persons along with their academic and socio academic credentials, so that the Vice Chancellor can pick up the appropriate person at his own discretion and consideration. But that having not been done, the nomination was not made in accordance with the Nitimala and so, it needs to be interfered. [73 DLR 462]

Constitution of Bangladesh, 1972 

Article 102(2)

When the Rules are in conflict with and/or in consistent with the parent Act, they are liable to be struck down. Rule 3(2) and Rule 3(3) of the Rules of 1990 are not only in derogation of the parent Act, they also stand contrary to the provisions of the parent Act. Rule 3(2) and Rule 3(3) is hereby declared to be inconsistent with the provisions of the parent Act. Rules 3(2) and 3(3) of the Land Appeal Rules, 1990 are both struck down....(28, 29 & 32) [73 DLR 478]

Constitution of Bangladesh, 1972 

Article 102

Citizens' right to privacy in correspon- dence and other means of communication is guaranteed under article 43 of the Constitution which cannot be easily violated at the instance of any interested quarter.[73 DLR (2021) 514]

Article 102(5)- The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. .....Pubali Bank Ltd VS Abdur Rashid Miah & others, [1 LM (AD) 420]

Article-102- Remission of Interest of the Sick Industry- The condition precedent for availing the opportunity of Special Interest Remission was that from the date of recommendation of the Special Committee, the sick industry was required to make down payment of 5% out of the outstanding amount excluding the interest. Neither in annexure-A nor in annexure-B of the writ petition, there was any recital that the concerned Ministry or BSRS gave any assurance or any undertaking to the writ petitioner that the money paid by it prior to the decision of the Special Committee on Interest Remission would be adjusted against the total amount of remission of interest. To avail the opportunity one must make deposit of the required amount as a condition precedent within thirty days from the date of receipt of the notice. Since the writ petitioner did not avail of the opportunity, it does not acquire any right on the question of remission of interest.

The appeal is therefore, allowed without any order as to cost. The judgment of the High Court Division is set aside. Bangladesh Shilpa Rin Sangstha & another VS Rony Twines Ltd & others, [1 LM (AD) 200]

Articles 102 and 117(2)- Since the vires of any law was not challenged writ petition is not maintainable The Appellate Division observed that law is now settled that except on the limited scope a writ petition involving question of determination of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable by the High Court Division under Article 102 of the Constitution. The object of providing Article 117(2) in obviously to relieve the congestion in courts and provide for speedy disposal of service matters clogging the courts for year by establishing alternative forums with exclusive jurisdiction. Administrative Tribunal has the jurisdiction, power and authority to adjudicate upon the disputes relating to service matter including the power to deal with the questions involving fundamental rights. ......Ministry of Communication & others =VS= Md.Iqbal Hossain, [1 LM (AD) 347]

Article 102, 29 & 133- Promotion-

Promotion is not a matter of right, it is to be earned by meritorious service which includes efficiency, good conduct, character and integrity, dynamic personality and, above all, sense of value and promotion. Seniority alone is not sufficient for promotion but it is certainly one of the primary requisites for promotion. Though by seniority alone a person cannot earn promotion, he, by virtue of seniority, has a right to be considered for promotion......Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, [1 LM (AD) 56]

Article 102 and 117- Clause (1) of Article 102 of the Constitution ordains that any person aggrieved may seek judicial review in the High Court Division for enforcement of fundamental rights conferred by Part III of the Constitution. Clause (5) of Article 102 puts an embargo to the seeking of such relief. It states that the person refers to in Article 102 includes a statutory public authority and any court or tribunal against whom such relief can be claimed, but it has excluded a court or tribunal established under a law relating to the defence services or a disciplined force or tribunal established in accordance with Article 117 of the Constitution. Bangladesh & others =VS= Md. Abdus Satter & others, [1 LM (AD) 378]

Article 102(2)- Appellate Division held that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. ..... Begum Khaleda Zia VS Anti-Corruption Commission, [3 LM (AD) 177]

Article 102- This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. The judgment and order passed by the High Court Division is hereby set aside. ......Bangladesh Railway =VS= Most. Monowara Begum, [5 LM (AD) 13]

Article 102(2)- Seniority- The writ petitioners were appointed against temporary posts and the added respondents got their appointment against permanent posts. Seniority amongst officers appointed by the same process at different times, the date of entering service is, unless there is some rule relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise. Learned Attorney-General failed to show any such law which provides that the persons appointed against permanent posts. We do not find any wrong in the judgment and order of the High Court Division. .....Government of Bangladesh =VS= Md Sohel Rana, [5 LM (AD) 182]

Article 102- Writ petition is not maintainable The present appellant did not challenge the judgment and decree passed by the Artha Rin Adalat nor he filed any case under Order 21 Rule 90 of the Code of Civil Procedure in the execution case challenging the auction sale. In such view of the matter the very writ petition was not maintainable. Mohd. Junayed Quader VS Artha Rin Adalat, Dhaka, [5 LM (AD) 418]

Article 102- The High Court Division could not and cannot exercise any power either original, appellate and other jurisdiction and powers unless such powers are vested on it either by any provision of the Constitution or law. In other words, the High Court Division cannot exercise a jurisdiction unless it is clothed with such power either by any provision of the Constitution or by any other law. (Md. Abdul Wahhab Miah, J). .....Mohammad Tayeeb -VS- Ministry of Religious Affairs, [5 LM (AD) 461]

Article 102 (2)- Whether the High Court Division can issue suo motu rule Where the fundamental right of a citizen is infringed, the High Court Division can issue suo motu rule provided the infringement of right is amenable to the writ jurisdiction and is of great public importance. In this context, a news paper report, post-card, written material may be treated as an application in order to overcome the obstacle of application. But before issuance of suo motu rule, the High Court Division must record its satisfaction in clear terms about exercise of such power. The High Court Division shall exercise such power sparingly. (Syed Mahmud Hossain, J). .....Mohammad Tayeeb -VS- Ministry of Religious Affairs, [5 LM (AD) 461]

Article 102- Whether, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution is empowered to award monetary compensation or compensatory cost to a victim in a case of the violation of fundamental rights The paramount object and purpose for which Article 102 has been enacted and the relevant factor and provision on which the interpretation of the Article 102 has been linked, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution, which is an instrumentality and a mechanism, containing both substantive and procedural provisions" to realise the objectives, purposes, polices, rights and duties which [the people] have set out for themselves and which they have strewn over the fabric of the Constitution," can award monetary compensation or compensatory cost mostly in appropriate cases for violation of fundamental rights which must be gross and patent i.e. incontrovertible and ex-facie glaring or that violation should appear unjust, unduly harsh or oppressive on account of the victims disability or personal circumstance but As no prayer was made regarding exemplary monetary costs or monetary compensations in the writ petitions and related affidavits, the High Court Division erred in law in fully relying on the submissions of the learned Senior Advocate for the writ petitioners in passing the orders for monetary compensation or compensatory costs and as such they said orders have been made without lawful authority and are liable to be set aside. .....Government of Bangladesh =VS=Nurul Amin, [4 LM (AD) 526]

Article 102(5) r/w article 117(2) Clause (5) of article 102 read with article 117(2) of the Constitution: Except on the limited scope challenging the vires of law or if there is violation of fundamental rights, the power of the High Court Division is totally ousted under clause (5) of article 102 read with article 117(2). If a public servant or an employee of statutory corporation wants to invoke his fundamental rights in connection with his terms and conditions of service, he must lay foundation in the petition of the violation of the fundamental rights by sufficient pleadings in support of the claim. It will not suffice if he makes evasive statement of violation of his fundamental rights or that by making stray statements that the order is discriminatory or malafide. .....Government of Bangladesh VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Article 102- The High Court Division cannot sit over the opinion of the Council as an appellate forum Judicial review against such removal is not available in this particular case in the facts of the given case, inasmuch as, judicial review is available against such order on limited grounds. The High Court Division cannot sit over the opinion of the Council as an appellate forum or from the Order of the President pursuant to the recommendation of the Council. The High Court Division has apparently equated a proceedings taken by a sitting Additional Judge against an order of removal on the ground of misconduct with an ordinary litigant which seeks judicial review against an administrative action. There is no doubt that judicial review is a basic feature of our constitution so also the rule of law but that does not mean that the same doctrine will be applicable in all cases. .....Idrisur Rahman (Md.) VS Syed Shahidur Rahman, [4 LM (AD) 231]

Article 102- We maintain the judgment and order passed by the High Court Division so far as it relates to the nature of the land in question and we further hold that the nature of the land in question shall have nothing to do with the title of the parties therein...... Government of Bangladesh VS Md. Abdul Malek, [4 LM (AD) 216]

Articles 102 r/w 27, 28, 29 and 31- Discrimination- So whenever any person being on the same footing is not treated equally in accordance with law, such action of the authority can clearly be termed to be discriminatory and/or arbitrary which is not sustainable in law. Sher-E-Bangla Agricultural University VS= Asia Rahman Shova, [4 LM (AD) 333]

Article 102(2)- Writ petition exparte and disposed of the same on merit cannot be sustained The facts are otherwise; the writ petitioners did not turn up when the writ petition was taken up for hearing, yet the learned Judges heard the writ petition exparte and disposed of the same on merit in the manner as stated hereinbefore on the verbal submissions of the learned Attorney General. We conclude that the High Court Division acted illegally in disposing of the writ petition exparte on merit by the impugned judgment and order in the absence of the writ petitioners and, as such, the same cannot be sustained. The impugned judgment and order of the High Court Division is set aside. The writ petition is sent back to the High Court Division for hearing afresh and for disposal in accordance with the law. Mujibar Rahman (Md) VS Government of Bangladesh, [4 LM (AD) 280]

Article 102(1)- Except challenging the vires of law or violation of fundamental. rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. Appellate Division observed that except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. None of the above conditions is available in this case and therefore, the writ petition is not maintainable. In respect of Abul Bashar, the writ petition was summarily rejected on the ground that the order impugned in writ petition cannot be said to be malafide or passed for collateral purpose and that no discrimination has taken place at all. In respect of case no.3 of 2000 since no inquiry report is available with the record, we direct the concerned Ministry to appoint an inquiry officer with the consultation of the G.A. Committee and complete the inquiry proceedings within two months from date, since the case is very old one. So this decision does not have any help for the respondent. ......Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143]

Article 102- This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution- The appellants, in possession, of the disputed lands, have raised a serious question as to the validity of the writ petitioner's title and her claimed possession and thereafter, dispossession and that there is no conclusive evidence of the writ petitioner's title in the same, the High Court Division in an application under Article 102 of the Constitution cannot put the writ petitioner in possession by dispossessing the appellants from the case land. In the case of Mohan Panday V. Usha Rani Rajaria reported in 1992 (IV) SCC 61 it has been laid down that no mandamus can be based on a Civil Court decree, which would be in the nature of executing or giving effect to a civil decree. This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. We find substance in the appeals. All the appeals are allowed. Bangladesh Railway VS Most. Monowara Begum, [6 LM (AD) 164]

Article 102(2) and 103- A Judge will dispense justice in accordance with law by treating everybody equal- A Judge is also oath bound to "do right to all manner of people according to law, without fear or favour, affection or ill-will"; this means that a Judge will dispense justice in accordance with law by treating everybody equal, be it poor or rich, powerful or powerless so ever and irrespective of caste and creed, religion and belief without fear or favour or ill-will and when a Judge of the High Court Division disposes a matter sitting in any jurisdiction, either constitutional or civil or criminal or company matter or any other jurisdiction, he gives reasons in support of his decision keeping in view the provisions of law in the context of the given facts and circumstances of a particular case. Any one who feels aggrieved by the decision and/or the order or the decree of a Judge of the High Court Division, can approach this Division under article 103 of the Constitution and in this way, a judgment and order or order or a judgment and decree of a Judge or Judges of the High Court Division as the case may be, is under scrutiny by this Division. (Md. Abdul Wahhab Miah, J). ... Government of Bangladesh -VS- Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 102, 103 and 105- The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution Under our constitutional dispensation, it is the Constitution, and not Parliament, which is supreme. Parliament's legislative power is subject to the provisions of the Constitution and any law to the extent of inconsistency with the provisions of the Constitution is void. The Supreme Court has been given the power of judicial review to see that Parliament does not overstep the limits set by the Constitution.

In our Constitution executive and legislative powers are expressly vested but the vesting of such power in judicature is absent. Vesting is a necessary decisive factor, where judicial powers have been in the hands of the judicature since before the birth of our Constitution. (Syed Mahmud Hossain, J). ... Government of Bangladesh -VS- Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 102(2)- The writ petitioners have challenged the vires of an Act of Parliament, that is to say, an amendment to the constitution which has been effective by Gazette Notification dated 22nd September, 2014 and secondly, this amendment has become a part of the constitution and the same cannot be judged by the touchstone of an ordinary legislation.

This Judges removal mechanism was made by substituting the old provision. In section 2 of the Act it is said, 'In the Constitution, in article 96, for clauses (2), (3), (4), (5), (6), (7) and (8), the following clauses (2) (3), and (4) shall be substituted. As per law if a substituted provision is declared void or repealed, the former provision shall be effective immediately. This court in Ful Chand Das V. Mohammad Hamad, 34 DLR (AD) 361 held that when a provision of law repealed by a statutory provision which is declared ultra vires the constitution, the former provision is automatically revived on such declaration. If the amended statute is wholly void, the statute sought to be amended is not affected but remains in force. Where the law was amended but subsequently the amendment was repealed, the amendment has to be completely ignored and the provisions of the law as they stood prior to amendment are to be taken into consideration. (Mir Laik Ali V. Standard Vacuum Oil Co., 16 DLR (SC) 287. In Ram Dayal V. Shankar Lal, AIR 1951, Hyd 140(FB), it was held that when an Act passed repeals another in whole or in part and substitutes some provision in lieu of the provision repealed, the repealed enactment remains in force until the substituted provision comes into operation. (Surendra Kumar Sinha, CJ). ....Government of Bangladesh =VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 102- If any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division- The writ-petitioners had no cause of action to invoke the writ jurisdiction of the High Court Division under article 102 of the Constitution. In the context, we state the law that though the provisions of Code of Civil Procedure are not as such applicable in the case of a writ petition, the principle of the provisions of the Code of Civil Procedure can be borrowed in deciding a writ petition like the provisions of Order VII, rule 11, clause (a) thereof. In the absence of the cause of action, the writ petition was not maintainable in law and therefore, the High Court Division did not commit any error of law in discharging the Rule Nisi on the view that the writ petition was not maintainable. In the context, the High Court Division rightly relied upon the case of Kamaluddin Md. and another-Vs- Bangladesh and others, 56 DLR (AD) 212. However, we are of the view that if any action is taken affecting the right of the petitioners in the lands in question pursuant to the memo impugned in the writ petition, they shall have every right to challenge the said action by resorting to appropriate forum including the writ jurisdiction of the High Court Division. ... Rokeya Begum -VS-Bangladesh, [7 LM (AD) 88]

Article 102- Limitation- No period of limitation has been prascribed by law for seeking redress under article 102 of the Constitution. However, such relief must be sought as early as possible and must be shown due diligence. There is no special provision of privilege for the Government to explain the delay invoking constitutional jurisdiction... Murtuza Shah(Md.) -VS- Ataharul Haque, [7 LM (AD) 158]

Article 102- In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty- The High Court Division in fact, passed the impugned order to compel the executive to pay government portion of salaries inasmuch as the government did decide as yet to pay salaries to them or even did not assure them that the government would pay the same. In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty. The mere fact that recognition and registration have been granted to an institutions or, for that matter, for conducting new course or subject would not give rise to a presumption of a financial sanction. A financial liability can not be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government. We are of the view that the High Court Division exceed its jurisdiction in passing the impugned command of compelling the executive for enlisting the names of the writ petitioners in the monthly payment order and to pay the arrear salaries and other benefits. The petition is disposed of. The judgment and order of the High Court Division is hereby set aside. ...Government of Bangladesh VS K.M. Ekbal Hossen. [7 LM (AD) 180]

Article 102- Doctrine of promissory estoppel the appellants would be estopped from denying the claims of the respondent nos.1 to 7 in regularizing their service in the newly created 24 posts by the appellant-Government with the purpose of regularizing the services of the respondents in their respective posts Government transferred M.B.B.S. Doctors to the newly created posts of BHMS degree holders in the Homeopathic Degree College and Hospital, Mirpur and thereby locked the posts of the respondent nos.1 to 7 which were exclusively created for regularization of the services of the 8(eight) honorary teachers including the respondent Nos.1 to 7 who were appointed without pay and allowance. The learned Judges of the High Court Division could not find any explanation on behalf of the appellants as to why the recommendations regarding regularization of the service of the respondent nos.1 to 7 as Lecturers / Assistant Professors of the Government Homeopathic Degree College could not be implemented and the learned Judges of the High Court Division rightly found that the appellant-Government failed to show why the respondents M.B.B.S. degree holders should be transferred to the Homeopathic Degree College depriving the Homeopathic Degree holders who are entitled to be appointed on full-time basis in the newly created posts of Government Homeopathic Degree College, Mirpur.

We are also of the view that the doctrine of Promissory Estoppel is also applicable in the aid of the respondent Nos.1 to 7 who have been rendering their service with sincerity, honesty and diligence to the satisfaction of the students and the College Authority. By their conduct and activities the appellant-Government has induced or made a representation to the respondent- teachers to continue their service as honorary teachers of the Government Homeopathic Degree College without pay and allowances so that they may be regularized or appointed on full-time basis in the newly created posts under the revenue set-up.

The appeal is dismissed without any order as to cost. The impugned judgment and order dated 03.11.2008 passed by a Division Bench of the High Court Division in Writ Petition No.2919 of 2006 is hereby affirmed. ... Government of Bangladesh VS Dr. Md. Nazrul Islam Bhuiyan, [8 LM (AD) 57]

Article 102- Whatever commission or remuneration the agent was entitled to for the acts done on behalf of the principal, it must be paid by the principal and not by the third party. There was an agreement to pay commission to writ petitioner, such commission could be recovered by invoking writ jurisdiction. The answer to this point is in negative. The writ petitioner's remedy lies in the civil court for recovery of the money as per terms of the agreement. ...Government of Bangladesh =VS= M/s. Excellent Corporation, [8 LM (AD) 215] 

Article 102- Refusing to grant registration to the 4 stroke C.N.G. Auto Rickshaw of the writ-petitioner- No C.N.G. Auto Rickshaw without having route permit will be given registration- This is a policy decision of the authority concerned to solve/reduce the problem of traffic jam in Sylhet district and this decision was taken in presence of Finance Minister and also the officials of Bangladesh Road Transport Authority, Sylhet circle. We find no illegality in this decision.

We find no illegality in the impugned order dated 12.08.2010 refusing to grant registration to the 4 stroke C.N.G. Auto Rickshaw of the writ-petitioner. The impugned judgment and order of the High Court Division, therefore, is liable to be set aside. Hence the appeal be allowed without any other as to cost. Deputy Commissioner, Sylhet -VS- Abdul Kaher Eju, [9 LM (AD) 13]

Article 102- Service matter- The writ-petitioner-respondent has reached the age of superannuation during pendency of the writ petition and as such, there is no scope for his reinstatement in service. Bangladesh Sugar and Food Industries Corporation -VS- Md. Shamsuddin Sheikh, [9 LM (AD) 101]

Article 102-Bills of the goods under the letters of credit- The discrepancy has been alleged in respect of the bills of the goods under the letters of credit which, allegedly have been obtained by practicing fraud in collusion with the beneficiary and others involved therein and since civil and criminal cases are pending in respect of the concerned disputed bills the High Court Division had no jurisdiction to deal with the same under judicial review.

Mr Alam also submitted that in respect of the self same L/C amount of bills. Bangladesh Krishi Bank instituted Title Suit Nos. 503 of 2014 and 504 of 2014 in the 4th Court of Joint District Judge, Dhaka. Side by side, DUDAK has also lodged two FIRs relating to the same bills after finding prima facie case of fraud, prayed that unless the impugned judgment of the High Court Division is set aside, those suits and the criminal cases will be rendered infructuous.

That dispute regarding the transaction is involved in all the matters which cannot be adjudicated upon under the judicial review as provided under Article 102 of the Constitution.

The facts and circumstances stated above and in view of the findings and decision arrived at by this Division in Civil Appeal No. 307 of 2015 along with Civil Appeal No. 308 of 2015 and Civil Petition No. 2971 of 2015, we find merit in these appeals and, as such, the same are allowed. The impugned judgment and order passed by the High Court Division is set aside. Accordingly, civil petitions for leave to appeal and the review petitioners are also disposed of in the light of the aforesaid judgment and order. ...Sonali Bank Limited-VS-Roseburg Industries Limited, [9 LM (AD) 173]

Article 102- The contract entered into by the writ-petitioners and writ respondents is an ordinary commercial contract and the remedy in case of breach of this contract, if any, is available before the civil court and the High Court Division had no jurisdiction to entertain the writ petition.

The question whether the writ-petitioners completely failed to perform their part in the contractual obligations in making the payments in accordance with the terms and conditions as specifically spelt out in the memo dated 09.04.1984 can be decided by a civil court after taking evidence. As the instant case is not maintainable under Article 102 of the Constitution, so the question of the obligations, duties of the parties are not to be dealt with in this forum. We have already discussed in the preceding paragraphs that the issue involves the question of the determination of facts which cannot be decided without taking evidence or examining the parties. ....Ministry of Commerce, Bangladesh =VS= Md. Nazrul Islam, [10 LM (AD) 234]

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

Article 102- Writ jurisdiction- The High Court has power to issue writ in grave cases where the subordinate tribunal acts wholly without jurisdiction or excess of it. The High Court Division has exceeded its norms in examining two witnesses and directing the writ respondents to exclude the building in question from the 'Ka' list and to restore possession. The very conduct of the writ petitioner shows that he has not appeared in the court for three months. This is apparent on the face of the order sheet of the Court of Settlement. He has failed to produce any original deed in respect of the property situated in a posh area of Dhaka City. No fruitful purpose will be served if the matter is remanded to the High Court Division. The judgment of the High Court Division is set aside. The appeal is allowed...... Ministry of Housing & Public Works -VS- Mohammad Alam, [5 LM (AD) 97]

Article 102

From the writ petition it appears that the petitioner filed the writ petition as pub- lic interest litigation, but we find no in- fringement of any fundamental right guaranteed by the Constitution of the People's Republic of Bangladesh or any other vested legal rights affecting the people at large or a section of the peo- ple. Therefore, the writ-petition in ques- tion could not be termed as a public interest litigation. In this regard the learned Judges of the High Court Divi- sion misconceived the concept of locus standi as observed by this Court in the case of Kazi Mukhlesur Rahman -vs- Bangladesh, reported in 26DLR(AD) 44. Before going into the merit of a writ petition the first and primary duty of the writ Bench is to see whether writ peti- tion itself is maintainable in law or whether the writ petitioner has got any interest in the matter which if not pro- tected he shall suffer injury, but in the instant case the petitioner failed to make out any such case. Kartic Das Gupta vs. Election Commission (Md. Abdul Wah- hab Miah J) (Civil) 8 ADC 578

Article 102

"I. Because civil executive officers are also within the scheme of the Constitu- tion and, as such, they may certainly be different in respect of powers and func- tions from judicial officers, but for that reason, they can not be treated as infe- rior or sub-ordinate to judicial officers, nor the judicial officers be equated with or treated as subordinate or inferior to civil executive officers considering the nature and jurisdictional functions. Cabinet Secretary vs. Md. Ataur Rah- man (S.K. Sinha J) (Civil) 8 ADC 415

Article 102

We hold the view that this sort of col- lection is undoubtedly beyond the scope of law and for alleged misappropriation of the so-called charge, the impugned order of termination is also illegal. The petitioner did not deny the receipt of service charge sent from different units to the Head office by him, but he denied the allegation of misappropriation, rather by admitting such receipt he tried to give the explanation of keeping such money with him. Chairman, Bangladesh Parjatan Corporation vs. Md. Shafiqul Islam (S.K. Sinha J) (Civil) 8 ADC 645

The Constitution, Article 102

Rejecting the petition summarily filed under Article 102 of the Constitution. Mrs. Bakul Akter vs. Bangladesh (A.B.M. Khairul Haque J) (Civil) 7 ADC 637

Article 102

Contempt Petition arising out of writ petition by the High Court Division convicting the petitioner-Md. Badarud- din Hawlader and the respondent No. 3- Md. Jalal Ahmed for committing the offence of contempt to Court. Md. Badaruddin Howlader vs. Kazi A.K.M. Sajahan (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC 657

Constitution of Bangladesh, 1972

Article 102(2)

The petitioners having all the requisite qualifications and absolutely standing at par with their colleagues have been left out being not considered to be absorbed by the impugned order. It seems that they were not liked by the University Authority from the get-go. We cannot say that UGC is the kingpin in the whole issue rather it was the boundened duty of the University authority to give an opportunity of hearing to the petitioners and then to decide their fate. This Act is certainly hypocritical and it should not be allowed to burgeon.  [73 DLR 592]

Article 102 of the Constitution and Section 9 of SERGE END KEEP DR ROSO: The High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the Constitution of the People's Republic of Bangladesh and thus, the High Court cannot declare a particular area as 'Balumahal making a particular law i.e. Ain 2010 nugatory or redundant. Thus, in this particular case the High Court Division has traveled beyond its jurisdiction declaring the mouzas in question as 'Balumahal'. (Para 20)

Section 10 of বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০:

A 'Balumahal' shall be leased out through open tender, and after acceptance of lease proposal, concerned Deputy Commissioner would execute lease agreement in specific manner and procedure and after receiving the lease money the possession of leased 'Balumahal' will be handed over to the lessor. But the High Court Division making the Ain, 2010 nugatory most illegally and arbitrarily leased out the mouzas in questions to the writ petitioner for extracting sand. The High Court Division, in fact, had played the role of the lessor, which it cannot do. (Para 22 & 23)

Mandamus may not be issued where there is no violation of a legal right: It is now well settled that mandamus may not be issued where there is no violation of a legal right or statutory duty by the authority concerned and that a person can avail writ jurisdiction by way of mandamus only for enforcement of his legal right or for redress violation of such right.    (Para 28)

Court cannot give any direction contrary to the relevant Act and Rules: In the instant case no legal right or statutory right has been created in favour of the writ petitioner to get lease of the 'Balumahal' in question and the concerned authority refrains to perform its legal or statutory duty. Mere deposition of the cost for hydrographic survey by the petitioner with the approval of court ipso facto does not create any legal or vested right in his favour. The writ petitioner did not come before the court to establish any public right but only to serve his selfish ends. A writ of mandamus cannot be indulged for such a purpose. Further, Court cannot give any direction which is contrary to the relevant Act and Rules.    (Para 30 & 31)

Section 3 of বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০:

For the excavation of any kind of bed of navigable waterways or removal of sand (3) outside the port area, the provision of বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০' will be applicable, even for the purpose of proper and smooth navigation. In this regard Bangladesh Inland Water Transport Authority (BIWTA) has got no authority to deal with the matter under the Port Rules, 1966.    (Para 34) [18 SCOB (2023) AD 36]

Decision related to cancellation of auction notice

Writ petitioner being not aggrieved has got no locus standi and so the writ petition itself was not maintainable. M/S Ashraf and sons represented by its Proprietor, Ali Ashraf-vs-Md. Zahangir Alam &ors (Amirul Kabir Chowdhury J) (Civil) 3ADC 882

Article 102(2)

In a mortgage the stipulations are to be settled between the mortgagor and mortgagee, the Government has no function in the private mortgage deed, the issue to be decided in a such suit for foreclosure between the mortgagor and mortgagee, whether, mortgage is genuine, and stipulations of the mortgage was proved or not, so, even if, in the suit the Government is defendant nothing has to be decided against the Government, in the suit for foreclosure, such a decree in law is not binding upon the Government for the enlisted abandoned property. By dint of ex-parte decree in the foreclosure suit the writ petitioner did not acquire any right and title in the case property.

In the case of Rahima Begum vs Court of Settlement reported in 2 BLC (AD) 108 it has held that-

"If the building in question carries a presumption of being abandoned property it is exempt from any legal process, be it an auction sale by the Government itself or through Court. The petitioners carried the onus to prove the presence or whereabouts or management of the building in question by the original non-Bengali owner when President's Order No.16 of 1972 was promulgated and this burden of proof having not been discharged by them before the Court of Settlement, no case for releasing the holding in question from the list of abandoned property has been made out."

In the case of Government of the People's Republic of Bangladesh vs M/s Speedbird Navigation Co. reported in 30 DLR (SC) 101 this Division has held that,

"No doubt the determination is only an ascertainment of fact constituting a property an abandoned property, and on such preliminary ascertainment of fact the law takes effect of its own force from 28-2-72 the date the Order came into force. On such formation of opinion of the Government after ascertainment of the fact the property as abandoned property." [74 DLR (AD) (2022) 85]

The petitioner-judgment debtor filed an application for dismissal of an execution case as being time barred. The learned Senior Assistant Judge rejected the application relying on a synopsis of a decision of one of the High Courts of Pakistan passed in 1998 published in a D.L.R. reference book which was affirmed by the High Court Division. The Appellate Division, however, found that the decision of the High Court of Pakistan is not applicable in our jurisdiction after 25th March 1971 and detailed as to which precedents of Dhaka High Court, Federal Court of Pakistan, Supreme Court of Pakistan, Calcutta High Court, Federal Court of India and the Privy Council are binding on us and which are not. Finally, finding that the execution proceeding was initiated after 3 years beyond the permissible period under Article 182 of the Limitation Act, dismissed the execution case.

 Which precedents are applicable in our jurisdiction: Regarding the binding effect of precedents of Supreme Court, Article 212 of the Government of India Act 1935; Article 163 of Constitution of Pakistan 1956 and Article 63 in Constitution of Pakistan of 1962 served the purposes of the present Article 111 of Bangladesh Constitution. By dint of the above mentioned constitutional provisions the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956); Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935-1947 13th August) the Privy Council (till 13th August, 1947) is applicable with binding effect in our jurisdiction. (Paras 19 and 20) Terab Ali & ors Vs. Syed Ullah & ors ( Md. Nuruzzaman, J) 17 SCOB [2023] AD 34

The respondent, a pharmaceuticals company, filed its Income Tax return upon which the concerned Local Office of the CAG conducted an audit after assessment by the DCT and found some irregularities in respect of assessment of the respondent’s income. Accordingly, the audit team submitted report to the Commissioner of Taxes claiming that the government suffered a revenue loss of Tk.1,39,750/- for such irregularities. On the basis of such report, the concerned Inspecting Additional Commissioner issued a notice under section 120 of the Income Tax Ordinance, 1984 upon the respondent. Being aggrieved, the respondent filed a writ petition before the High Court Division and obtained Rule Nisi. The High Court Division made the Rule absolute holding that though it is the power of the CAG or local office of the CAG to audit on the files in the tax department in order to check the receipts/refunds of public funds, it has got no authority to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. If the auditor is allowed to do so, the entire purpose for incorporating the provisions under Section 120 and/or 121A of the Ordinance will be frustrated. Appellate Division, on the contrary, analyzing article 128 of the Constitution of Bangladesh and section 120 and 163(3)(g) of the Income Tax Ordinance, 1984 set aside the judgment and order of the High Court Division holding that the audit report prepared by the Local Audit Office of the CAG is one of the factors that enables the Inspecting Joint Commissioner to determine whether any order of Deputy Commissioner of Taxes is correct or not and therefore the opinion of the High Court Division is erroneous.

Constitution of Bangladesh, article 128 and Income Tax Ordinance, 1984 section 120 and 163 (3) Whether audit report has any bearing upon the subjective opinion of assessing officer:

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

Constitution of Bangladesh 

Article 102

Bangladesh Abandoned Building

(Supplementary Provision) Ordinance, 1985

The appellants have come to the Court exercising writ of certiorari seeking equitable relief but with unclean hand. Following the principle that one who seeks equity must come with the clean hands. The appellants sought equitable relief on the strength of documents Annexures-D and E which manifestly found to be false and fabricated, created solely for the purpose of this Case. Accordingly, the petition is dismissed.

The Appellate Division observed that there is also no evidence on record before the Court of Settlernent to show when Nur Mohammad died and who are his heirs though the appellant claims to his be sole successor. Moreover, there is no evidence before the Settlement Court to show that Mohammad Mohib was in Bangladesh during the war of liberation and there is no material to show that Mohammad Mohib was recognized as a Bangladeshi national. Therefore, the annexed papers recording Mohammad Mohib are prepared and transferred afterwards and do not inspire any confidence in Court. For the reasons assigned by the Court of Settlement and the High Court Division, the Appellate Division finds no substance in the submissions of the learned Counsel based on certain paper introduced before us. In view of the above, the Appellate Division finds no substance in the submissions of the learned Counsel for the petitioner. Accordingly, the petition is dismissed. Mrs. Fafiqun Nahar and others -Vs.- Chairman, Court of Settlement and others (Civil) 22 ALR (AD) 25

Constitution of Bangladesh

Article 102-There is no gainsaying the fact that statutory contract can be enforced under the writ-jurisdiction.

It is now well settled that a pure and simple commercial contract having no statutory backing is not enforceable under the writ jurisdiction of the High Court Division.

Whether the High Court under Article 102 of the Constitution can act as a Court of equity or can pass an order for ends of justice.

The Appellate Division observed that while exercising the writ jurisdiction under Article 102 of the Constitution, the High Court Division is a Court of law and not a Court of equity and it also cannot pass any order for ends of justice. The High Court Division must act in terms of the letters of Article 102 of the Constitution and not beyond that taking into consideration what would be good or bad under the principle of equity. Therefore, the High Court Division was not justified in making the Rule absolute in part on the ground that it can act as a Court of equity and also can pass an order for ends of justice. Bangladesh and others. -Vs. Zafar Brothers Limited and another (Civil) 22 ALR (AD) 114

Constitution of Bangladesh

Article 102-No writ is maintainable against the private bank since the same is a bank company not created by or under any Statue and not a statutory body of local authority within the meaning of Article 102 of the Constitution.

The High Court Division is of the view that on two counts as discussed above this writ petition is not maintainable. Further it is well settled that when a writ petition is decided on preliminary point i.e. on the question of maintainability any other point need not be addressed by this Division since they are merely academic. Tasmina Haque-Vs.- Ministry of Finance and others. (Spl. Original) 21 ALR (HCD) 244-246 

Constitution of Bangladesh Article 102 read with

Acquisition and requisition of immovable property ordinance, 1982.

Section 3 The notice issued under section 3 of the acquisition and requisition of immovable property ordinance, 1982 is flawed and in effective as definite purpose of acquition has not been spelt out. It is mentioned that the property may be used or likely to be used in future which is proximate and as such not sustainable.

The High Court Division held that it is specifically asserted that in the writ petition that the acquisition proceeding has been initiated at the behest of some interested government officials with a view to offer benefit to their next of kin which has not been specifically refuted by the respondents rather from the report submitted by land acquisition officers and others wherein they specifically asserted that the proposed land is not necessary for public purpose and in the report it is specifically mentioned that the co-operative society has huge land in the vicinity of the land of acquisition proceeding. So it is clear that acquisition proceeding has been initiated with malafide motive and by colorable exercise of power which cannot be sustained. Khondker Abu Taher Noori & others -Vs.- The Government of Bangladesh and others (Spl.Original) 21 ALR (HCD) 211-216

Constitution of Bangladesh

Article 102-Since it has been proved by the departmental proceeding that, it was not that Shahabuddin Behari who was supposed to serve jail rather one innocent named, Md. Arman has been serving jail in his place for the alleged negligence of two police officials then on of that simple count, the rule can be made absolute by setting the detenue free. But the matter cannot be taken so leniently and end in such a simple way when an innocent person has been in prison for nearly 5 years and his widow mother had to remain silent for most of the period taking no legal recourse for releasing her innocent son. It thus surely smacks of high-handedness of a powerful quarter who made him languishing in jail on purpose. And obviously, Article 102 of the Constitution has mandated the High Court Division to direct the concerned authority to dig-out the truth basing on the materials on record, so that none howsoever he/she mighty be cannot play ducks and drakes with the life and liberty of any citizen of this country to serve their petty interest. Our Constitution guarantees enjoying the fundamental right to every citizen of this country and the High Court Division as a guardian of the Constitution is oath bound to protect that inalienable right.

Whether in a writ of habeas corpus any monetary compensation can be awarded to the detenue fixing responsibility to any particular authority and any direction can be given in the form of mandamus if the High Court Division finds from the materials on record that, another wrong is going to be committed in punishing officials who appear to have no part in the illegal confinement.

Article 102 of the Constitution confers power on the High Court Division to make directions or orders or writes in any of the form of habeas corpus, mandamus, prohibition, certiorari and quo warranto whichever this court finds appropriate for the enforcement of fundamental right guaranteed by Part III of our Constitution.

If fundamental right of a citizen is found to have violated by any act of the state apparatus whether that can be remediated through monetary compensation.

It is the respective organ of the state to be responsible for that misdeed and thus must provide reparation for the damage committed by its officers to the victim, detenue.

It is the highest authority of the police force who must pay compensation for the wrong committed by its substantiates not the state will take the responsibility let alone the respective ministry as they are not supposed to look into what conspiracy has been happening in a particular police station for doing harm on an innocent person.

Order of compensation will in no way preclude the detenue from bringing a further suit to recover appropriate damages from the respective organ of the state and its defiant officials nor bring any criminal case to any appropriate forum against the perpetrators who has caused physical harm and mental distress during his long unlawful custody. Banu, wife of late Md. Yasin -Vs. Ministry of Home Affairs, and others (Spl. Original) 21 ALR (HCD) 375- 387

Constitution of Bangladesh

Article 102-Transparency in the decision making process of any tender as well as in the functioning of the public bodies is desired and particularly in the matter where financial interest of the State is involved, transparency in the tender procedure is a recognised matter.

The High Court Division held that admittedly, the petitioner participated in the tender and he is lowest bidder and tender committee awarded the contract. According to the tender specification, the petitioner delivered the goods and respondent No. 3 also received the same with full satisfaction. However, these medical equipments/ instruments were procured by the procurement entity on excessively high price as per office note of the respondent no. 1. These are disputed question of fact and the High Court Division cannot decide on that matter under this jurisdiction of judicial review. As such, the High Court Division is of the view that if this matter is reffered to a competent authority like Anti Corruption Commission (ACC) to investigate into the matter, especially relating to the allegation of corruption in the procurement of MSR equipments/ instruments or machinery on excessively high price and justice will be better served if the High Court Division direct the Anti Corruption Commission to investigate into the matter to find out the real perpetrators. After investigation, if it is found that there is no prima facie case relating to the allegation of corruption and/or not proved by the competent authority or Court, then the petitioner is entitled to get his all bills in accordance with law and if the allegation of corruption is proved then the authority shall take necessary action against the real perpetrator including the petitioner. Under such circumstance, the High Court Division is of the view justice will be better served if the matter is send to the Anti Corruption Commission for proper and fair investigation, within 6 (six) months from the date of receipt of this order. The authority concern is directed to send the matter to the Anti Corruption Commission for investigation without any delay. Accordingly, the Rule is disposed of with above directions. Abdullah Al Mamun Vs. Ministry of Health and Family Planning, and others (Spl.Original) 21 ALR (HCD) 26-44

Constitution of Bangladesh

Article 102 read with

Registration Act [XVI of 1908]

Section 23

সম্পত্তির সর্বনিম্ন বাজার মূল্য নির্ধারণ বিধিমালা, ২০১০

Rule 7 and rule 7Ka-Rule Nisi was issued by the High Court Division calling upon the respondents to show cause as to why a direction upon the respondent No. 5 to execute a registered deed of the schedule land, to the petitioners name as highest Tender Bidder in the light of the application to the respondent No. 5 (Annexure-E) to the petition and/or pass such other or further order or orders as to the High Court Division may seem fit and proper.

It is a cardinal principle of interpretation that if two interpretations are possible, the interpretation has to be adopted which will avoid hardship or unjust and unreasonable.

After considering the materials on record and submissions of the learned lawyers, it appears to the High Court Division that the petitioner has come to the High Court Division with clean hands and they purchased the mortgage property on auction bonafidely. Therefore, the petitioner may be called as bona fide purchasers for value without notice that the said property had been treated as Arpito Sompati. The case is unusual. In order to exclude the property from the list of Arpito Sompati, the respondent No. 5 has to incur a considerable period of time, therefore, the respondent No. 5 could not execute a registered deed in favour of the petitioners that has been sufficiently explained in the affidavit-in-opposition filed by the respondent No. 5. Moreover, there is no apparent fault of the petitioners. It transpires from the record that the auction value of the aforesaid property was taka 5,04,000/- and taka 9,60,000/- was Mouza Value for the purpose of registration in 2007. In 2020 the Mouza rate is 80,93,000/-. Considering the aforesaid backdrop, the High Court Division is of the opinion that if the aforesaid property is valued at Tk. 9,60,000/- (Mouza Value of 2007) for the purpose of registration of property that will be justified from legal and equitable perspective. Consequently. we find substance in the Rule. As a result, the Rule is made absolute. Md. Asraful Alam and others -Vs. Government of Ban- gladesh and others (Spl. Original) 20 ALR (HCD) 71-75

Constitution of Bangladesh

Article 102 The disputed area can not be treated as an area of the Pourashava and any rural area "can not be treated as included in the municipal area just for the cause that its inhabitants have been enjoying the municipal facilities".

On perusal of the gazettes, the Appellate Division finds that Uttar Kistakathi has not been included within Jhalokathi Pourashava. The Appellate Division notice that except the voter list, a khatian of J.L. No. 137 along with the mouja map, some receipts and a certificate, which are not legal documents to infer that Uttar kistakathi is within the Pourashava, there is no legal document to come to the conclusion that Uttar Kistakhati is part and parcel of Jhalakathi Pourashava. In view of the matter, the Appellate Division finds no illegality in the judgment of the High Court Division in directing the Election Commission to correct the voter list and exclude 672 voters of Uttar Kistakathi and then to hold election. Afzal Miah and others -Vs. Abdul Halim Gazi and others (Civil) 20 ALR (AD) 89-91

Constitution of Bangladesh

Article 102 read with

Government Lands and Buildings (Recovery of Possession) Ordinance, 1965

Sections 3, 4, 5, 6 and 7-The Military Estate Officer-the writ-respondent No. 2 executed the lease deed in question (annexure-A) on behalf of the President and thus rightly hold that the respondent No. 2 being not the lessor, the lessor being the President of Bangladesh the respondent No. 2 had no right to cancell the lease in question; the High Court Division rightly found also that the right of cancellation and entry has been reversed by lease deed itself to the lessor and the lessor includes his successors and assigns and that the writ-respondent No. 2-the Military Estate Officer is not the successor or assign of the President.

The writ-petitioner being a sports organization and functioning under the statutory authority of Jatio Krira Parishad-the statutory body constituted under the Bangladesh Sports Council Act (Act LXII of 1974) is a person aggrieved as per Article 102(5) of the Constitution.

It appears to the Appellate Division that an argument was made from the side of the contesting respondent to the effect that by the gazette notification dated 4th February, 1989 the respondent No. 2 was authorized for enforcement of sections 3, 4, 5, 6 and 7 of the Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 in exercise of section 9 of the said ordinance. But it appears that the High Court Division, on meticulous examination of different provisions including the preamble of Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 rightly held that this ordinance was promulgated for the purpose of recovery of Government Lands and Buildings from 3 categories of persons, namely, outgoing lessees and licensees and unauthorized occupants and that in the present case since there was no question of recovery of possession, the question being of cancellation of lease deed, the Ordinance, 1965 was not applicable and that this ordinance did not authorize cancellation of lease granted under the Cantonment Act, 1924. The impugned cancellation order also-the annexure-L- does not show that the respondent No. 2 made the impugned cancellation order in exercise of its power derived from this Ordinance, 1965. Before the High Court Division question was raised as to the maintainability of the writ-petition. It was argued from the side of the contesting respondent that the writ-petitioner is not a person mentioned in Article 102 of the Constitution and as such the writ-petition filed by the writ-petitioner was not maintainable. The High Court Division duly considered this objection of the contesting respondent also and rightly opined that the writ-petitioner being a sports organization and functioning under the statutory authority of Jatio Krira Parishad-the statutory body constituted under the Bangladesh Sports Council Act (Act LXII of 1974) is a person aggrieved as per Article 102(5) of the Constitution. However, the Appellate Division finds that the High Court Division, on meticulous examination and consideration of all aspects, rightly held that the impugned cancellation order-the annexure-L of the perpetual lease-the annexure-A-has been issued by the respondent No. 2 without any lawful authority. The Appellate Division, therefore, finds no merit in this appeal. Hence the appeal be dismissed on contest without any order as to cost. Government of Bangladesh -Vs.- Chattagram Zila Krira Sangstha (CZKS) and others (Civil) 20 ALR (AD) 91-94

Constitution of Bangladesh

Article 102-The UGC, particularly its Chairman, are reminded that they are not rendering benevolent and voluntary service. Rather, they are entrusted with the task of supervising and regulating the education curriculum being offered and conducted by the private Universities, for which they are being paid from the public exchequer. As such, they are accountable to the public as well.

The High Court Division opined that task of maintaining the quality of education at the private Universities lies with the University Grants Commission. However the conduct of the UGC in the present case clearly demonstrate that they not only wanting in that regard, but they have also failed to observe the rules and regulations The state of affairs prevailing in the private Universities leads one to conclude that the UGC has failed to discharge its duties and responsibilities diligently and in

accordance with law. The UGC, particularly its Chairman, are reminded that they are not rendering benevolent and voluntary service. Rather, they are entrusted with the task of supervising and regulating the education curriculum being offered and conducted by the private Universities, for which they are being paid from the public exchequer. As such, they are accountable to the public as well. The UGC, and particularly the Chairman, are hereby cautioned and directed to be more diligent and sincere in discharging their statutory ditties. International University of Business. Agriculture and Technology IUBAT) Vs. The Chairman, University Grants Commission and others (Spl. Original) 19 ALR (HCD) 180-185 Constitution of Bangladesh

Article 102-The petitioners have been rendering unblemished service for more than 5 years and they have been continuing their service in their respective offices. Therefore, they have legitimate expectation that they would be absorbed against the permanent posts.

The High Court Division is taking in to consideration the case of Bangladesh Biman Corporation -vs- Rabeya Bashri Irene and others reported in 55 DLR (AD) 132. In the case referred to above, the Appellate Division has held as under: "In the background of the existing practice of absorbing the employee of the petitioner's category on satisfactory completion of the initial period of employment under a contract, it can be said that there was a reasonable ground for the writ petitioners to expect for being absorbed permanently in the service of the corporation." Considering the facts and circumstances of the case and the discussions made hereinbefore, the High Court Division is inclined to dispose of the Rule. Accordingly, the Rule is disposed of. The respondents are directed to regularize/absorb the petitioner in the permanent post in his office whenever vacancy arises, if he is otherwise not disqualified. Md. Mostafizur Rahman -Vs.- Government of Bangladesh and others (Spl. Original) 19 ALR (HCD) 215-217 

Constitution of Bangladesh

Article 102 -The Rule Nisi was issued by the High Court Division calling upon the respondents to show cause as to why the petitioners should not be given the benefits of promotion to the 6th grade senior scale from 21.12.2002 and/or why such other or further order or orders as to this court may seem fit and proper, should not be passed.

It is the settled principle of law, 'actus curiae neminem gravbit' what the Court does ought not to prejudice a litigant; in the other words- an act of the Court should prejudice no one. As per this principle, where any delay in a litigation is caused by the Court neither party should suffer for it. In this regard another principle is relevant 'nunc pro tunc now for then.

The High Court Division held that it is the settled principle of law, 'actus curiae neminem gravbit' what the Court does ought not to prejudice a litigant; in the other words an act of the Court should prejudice no one. As per this principle, where any delay in a litigation is caused by the Court neither party should suffer for it. In this regard another principle is relevant 'nunc pro tunc now for then. According to this principle, a judgment is entered, or document enrolled to have the same legal force and effect as if it had been entered or enrolled on some earlier day on which it should properly have been done; or, in the other words, where a proceeding has been delayed by the action of the Court, or any like ground, the Court may allow it to be dated as if it had taken place or been delivered on the earlier date. The Courts from the very ancient times have exercised its inherent power of entering judgments nunc pro tunc in order that the right of a litigant, who is himself not at fault, should not be impaired or lost. In the case in hand, admittedly, the petitioners became eligible for promotion not only before the filing of the said Writ Petition No. 2897 of 2007, but even before the said 55 junior officers were promoted on 21.12.2002, while, there were more than sufficient number of vacant promotion posts. Therefore, the respondents cannot escape from the liability in delaying the promotion of the petitioners. Md. Abdul Mazed and others - Vs. Bangladesh and others (Spl. Original) 19 ALR (HCD) 325-330

Constitution of Bangladesh

Article 102 read with

Rules of Business, 1996

Schedule 1-The High Court Division issued Rule Nisi calling upon the respondents to show cause as to why they should not be directed to rename the Petitioner' s sole post of "Administrative Officer" to "Senior Administrative Officer" of the Attorney General's office and upgrade the post in grade VII in the scale of taka 29,000/- to 63,410/- under the national Pay Scale of 2015, and grant class 1 Gazetted status, with retrospective effect from 07.12.2017 and pay all arrears and/or such other or further order or orders passed as to this court may seem fit and proper.

The High Court Division held that the decision of the Attorney General Office is a speaking one which needs no further elaboration or deliberations. Positive directions have been spelt out from the said decision in respect of the rightful claim of the petitioner. The highest body of the Attorney General Office, at the behest of the Attorney General himself has given a full-fledged decision which in the High Court Division's view does not suffer from any legal infirmity. Considering the overall aspects and in particular the decision of the Attorney General's Office the High Court Division thinks it proper that the respondents certainly would act in accordance with the same, of course following the Allocation of Business among the Different Ministries and Divisions (Schedule 1 of the Rules of Business, 1996). With these observation and direction this Rule is made absolute. The respondents are directed to rename the Petitioner's sole post of "Administrative Officer" to "Senior Administrative Officer" of the Attorney General's office and upgrade the post in grade VII in the scale of taka 29,000/- to 63,410/- under the national Pay Scale of 2015 with retrospective effect from 07.12.2017. Md. Nasir Uddin Vs. The Government of Bangladesh and others (Spl. Original) 19 ALR (HCD) 396-399 

Constitution of Bangladesh

Article 102 Commencement of the Tenure of the Management Committees/ Governing bodies of the Non- government educational institutions.

While the tenure of the regular/elected Management Committees/Governing bodies of the Non-government Schools, Colleges and Madrashas starts from the date of holding the first meeting of an elected Managing Committee/Governing body, the commencement date of an Adhoc Managing Committee or Adhoc Governing body is the date of issuance of the letter of Adhoc Committee/Governing body by the concerned Education Board or University. Nurul Absar Helali -Vs.- Bangladesh and others. (Spl. Original) 19 ALR (HCD) 391- 396

Constitution of Bangladesh

Article 102-In the memo of appeal, the writ-petitioner has taken specific grounds regarding open, unsealed and torn gunny begs. Although the Election Appellate Tribunal is the final Court of fact but the Election Appellate Tribunal without assessment of the evidence of the parties mechanically affirmed the judgment and order passed by the Election Tribunal. Therefore, the High Court Division is of the view that both the Tribunals below without assessment of the evidence passed the impugned judgment and order and failed to discharge judicial duty with law. in accordance

The High Court Division opined that in exercise of certiorari, the High Court Division cannot act as a court of appeal to re-assess the evidence unless it is found that the decision of the Courts below or tribunal is not warranted by evidence on records. If the Election Tribunal failed to exercise its jurisdiction vested in it or exceeded the jurisdiction or acted mala fide or in bad faith, the decision of the Courts or Tribunals below can be called in question under Article 102 of the constitution. Md. Fazle Rabbe -Vs. Election Appellate Tri- bunal and others (Spl Original) 19 ALR (HCD) 379-390

Constitution of Bangladesh

Article 102-When a public authority has promised to follow a certain procedure, it should be implement fairly for the interest of good administration.

The High Court Division observed that it transpires that the petitioners have been appointed in different post on temporary basis in the service of Bangladesh Rail way. As per agreement dated 16.11.1992 as contained in annexure "A" it appears that during service of the petitioners an agreement was executed between the Ministry of Communication and the leaders of Saramik karmachari Sangram Parishad wherein it has been stated in clause 3 and 4 that the temporary employees would be regularized upon completion of 5 years service in regard to their respective post. When a public authority has promised to follow a certain procedure, it should be implement fairly for the interest of good administration. Md. Kamal Mia and others Vs. Ministry of Com- munication and others (Spl. Original) 19 ALR (HCD) 413-416

Constitution of Bangladesh

Article 102-The claim and counter claim of the respective contending parties having been disputed cannot be resolved under writ jurisdiction Further, the claim of the petitioners is rooted entirely on facts and thus, without taking evidence such claim cannot be entertained by the High Court Division while exercising jurisdiction under Article 102 of the Constitution.

The High Court Division held that the Rule further fails on the count that no specific demarcation of the schedule land has been prescribed in the writ petition as such, seeking direction against the respondent No. 5 not to disturb the peaceful possession also falls through. Lastly, the prayer so has been made before the respondent No. 4 on 07.02.2012 can also not been entertained, for he is not the controlling authority of respondent No. 5. Accordingly, having found no substance in the present Rule it is liable to be discharged. In the result, the Rule is discharged. Abdul Hamid (Freedom Fighter) and another. -Vs.- Bangladesh and others. (Spl. Original) 19 ALR (HCD) 261-263

Constitution of Bangladesh

Article 102 read with

Bangladesh Red Crescent Society Order, 1973

Article 9C(1) A Writ of Mandamus may be issued on any person performing functions in connection with the affairs of the Republic or of a local authority. Such a person must hold office of a public nature an office under the Constitution or a law relating to the affairs of the Republic or of a local authority. It will issue only when that public functionary has a public duty under a law and he refused to perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative. The duty sought to be enforced must be a duty of a public nature, that is to say, a duty created by the provisions of the Constitution or a statute or some other rule of common law or some rules or orders or notifications having the force of law.

The High Court Division held that the election of the Executive Committee of Gopalganj Red Crescent Unit manned by the petitioners for the term 2017-2019 was held on 18.11.2016; but strangely enough, the respondent nos. 2 and 4 for the first time questioned the legality and propriety of that election on 18.07.2019 by filing an Affidavit-in-Opposition. It does not stand to reason and logic as to why those respondents took an unusual amount of time in questioning the legality of the aforementioned election dated 18.11.2016. Their long silence without any explanation in this regard, in spite of receipt of Annexure-'H' dated 07.12.2016, Annexure 'H-1' dated 29.12.2016 and Annexure-'I' dated 07.08.2017, is mysterious, inexplicable and unfathomable. Besides, it is astounding that the respondent nos. 8 and 9 have failed to contest the Rule particularly when purportedly the respondent no. 8 is the Vice-Chairman and the respondent no. 9 is the Secretary of the Executive Committee of Gopalganj Red Crescent Unit for the term 2018-2020 as per the claim of the respondent nos. 2 and 4. Over and above, it is not understandable as to why the respondent no. 3 has not come forward to have his say before this Court in connection with the instant Rule, On top of that, the rival Executive Committee of Gopalganj Red Crescent Unit of the respondent nos. 8 and 9 has not admittedly taken any legal step about the respondent no. 3's inaction in nominating 3 (three) members thereto. So a question necessarily arises: what does this scenario indicate? It is the definite claim of the respondent nos. 2 and 4 that the Executive Committee of Gopalganj Red Crescent Unit for the term 2017-2019 manned by the petitioners is illegal and a paper committee. On the contrary, it is the assertion on the part of the petitioners that their Executive Committee is legal and the so-called Executive Committees of Gopalganj Red Crescent Unit for the terms 2015-2017 and 2018-2020 are illegal and paper committees. This dispute cannot be resolved in this summary proceeding under Article 102 of the Constitution. Be that as it may, had the Executive Committee of Gopalganj Red Crescent Unit for the term 2017-2019 manned by the petitioners been without any legal basis, the respondent no. 3, or for that matter, the concerned authority would have definitely taken necessary steps thereagainst; but to our dismay, no such steps were taken. Only on 18.07.2019, the Bangladesh Red Crescent Society challenged the legality of the formation of the Executive Committee of Gopalganj Red Crescent Unit for the term 2017-2019 by the petitioners by filing an Affidavit-in-Opposition in this Writ Petition. Assuming for the sake of argument that the Executive Committee of Gopalganj Red Crescent Unit for the term 2017-2019 is unlawful, the respondent no. 3 is empowered to supersede the same under Article 9C(1) of the President's Order No. 26 of 1973; but that has not been done as of to-day. According to the asser- tion of the petitioners, the tenure of the Executive Committee of Gopalganj Red Crescent Unit for the term 2017-2019 commenced on 1 January, 2017 and will come to an end on 31 December, 2019. So for all practical purposes, only a month is left for the expiration of the term of the purported Executive Committee of the petitioners. However, regard being had to the observations and findings made and recorded in the body of the judgment and in the peculiar facts and circumstances of this case, the High Court Division thinks, both the parties should be left to their own devices. Accordingly, they are left to their own devices and the Rule is disposed of without any order as to costs. S. M. Nahaz Pasha (Advocate) and others -Vs.- Ministry of Health and others. (Spl. Original) 19 ALR (HCD) 236-244

Constitution of Bangladesh

Article 102-The High Court Division issued a Rule Nisi calling upon the respondents to show cause as to why the actions of the respondents for eviction and lease out the land situated at Khatian No. 330, Plot Nos. 166, 167, 168 measuring an area of 28 acres in J.L. No. 61 of Mouza Kajalsar, Upazialla Zakigonj, under District- Sylhet should not be declared to have been issued without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

The High Court Division held that the possession of the land in question was enjoyed by the petitioner and his predecessor for a very long time. They paid the applicable rents and duties to the Government for a long time. The title of the land was not questioned before. But suddenly, on 28.02.2011 the respondent No. 3/office of the respondent No. 3, with, what it seems, "super speed and efficiency" concluded that the documents are not in order. There was a sudden conclusion that the land belongs to the Government. The conduct of the respondent No. 3 is manifestly suspicious and does clearly indicate that he had abused his power. He acted in an unprecedented manner. The logical conclusion is that he was motivated. Surely the respondent No. 3 is under an obligation to ensure that Government land is not dispossessed. Surely the respondent No. 3 and for that matter the other respondents can take steps to recover the dispossessed land. But the basis and the manner in which the respondent No. 3 proceeded, casts doubt as to whether he acted fairly. In the High Court Division's view, the action of the respondent No. 3 is "questionable". It is also the High Court Division's view that the respondent No. 3 abused his powers, being motivated. The entire exercise of the respondent No. 3, in the High Court Division's view, was malafide and was to proceed with eviction from the land in question. The High Court Division is thus are inclined to interfere in the matter. In light of the above, the High Court Division is of the view that there is merit in the Rule. The Rule is made absolute, without any order as to costs. Rashid Ahmed Chowdhury Vs. The Deputy Commissioner, Sylhet and others (Spl. Original) 19 ALR (HCD) 28-32

Constitution of Bangladesh

Article 102-A solemnly executed commercial contract entered into by the two competent parties after the same being approved by the government or any terms of it cannot be waived, modified or altered unilaterally by one of the parties on the dictation of a superior authority.

The High Court Division held that the contract in question is purely a commercial contract with all the trappings and a dispute that eventually ended in review is final and conclusive. Therefore, the High Court Di- vision is of the view that the writ petitions are devoid of any substance which should be discharged. The High Court Division hold that in the context of the dispute in question the contractual obligation shall operate in its mandatory implication having binding effect upon the parties and the 'award' on that score is absolutely omnipotent. All the Rules are thus dis- charged. Bangladesh Rural Electrification Board (BREB) -Vs.- Bangladesh Energy Regulatory Commission (BERC) and oth- ers. (Spl.Original) 19 ALR (HCD) 244-250

Constitution of Bangladesh

Article 102 read with

Anti-Corruption Commission Rules, 2007

Rule 13(3) read with

Emergency Powers Rules, 2007

Rule 14- It is now well settled that a criminal proceeding under the writ jurisdiction cannot be quashed unless the vires of law involved is challenged.

No complaint in respect of an offence specified in the schedule to the Anti- Corruption Commission Act, 2004, shall be filed directly in court by any person but if any competent court is satisfied that the complainant approached the Commission or any of its office or police station but failed to get the complaint accepted, then the said court may accept the complaint and direct the commission for investigation of the same.

It is now well settled that Rule 13(3) of the Anti-Corruption Commission Rules, 2007 is merely a procedural law and non-compliance of such procedural law cannot be regarded as fatal to record a prosecution case against an offender who alleged to have committed the schedule offence under the Anti-Corruption Commission Act, 2004.

The High Court Division opined that under the circumstances, the court should not invoke its jurisdiction under Article 102 of the Constitution to quash the very initiation and continuation of the proceeding initiated by the Anti-Corruption Commission on hyper-technicality unless an accused is substantially affected and prejudiced. On the point of hypertechnicality of law, the High Court Division refer to a decision in the case of Habibur Rahman Molla vs The State reported in 61 DLR (HC) (2009)1= State of HP Vs Lekh Raj reported in 2000 SCC (Crl)147 wherein it has been spelt out as follows:- "The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be an utopian thought but has to be considered as part and parcel of the human civilization and realities of life. The court cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting the society and the mankind." Having considered all the facts and circumstances of the case, the submissions advanced by the learned Advocates for the respective parties and the learned Deputy-Attorney General for the State and the proposition of laws cited above, the High Court Division does not find any merit in this Rule. Accordingly, the Rule is discharged. Al- Haj Nurul Islam Moni -Vs. Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others. (Spl.Original) 18 ALR (HCD) 238-241

Constitution of Bangladesh Article 102-Promissory estoppel

The High Court Division held that as per law declared in a series of cases by this court, the High Court Division is of the considered view that the respondents are under a legal duty to provide gas connection for generator set of the petitioner and they are estopped to back out from their promises to provide gas connection, which is implied in their promises and as well as in the direction to install captive generator set in the CNG Filling Station of the petitioner. Ishakha CNG & Filling Station Limited Vs. Government of the People's Republic of Bangladesh, represented by the Ministry of Energy and Mineral Resources, Bangladesh and others. (Spl. Original) 18 ALR (HCD) 186-189

Constitution of the Bangladesh

Article 102 read with

Negotiable Instrument Act [XXVIII of 1881]

Section 138-The writ petitioner has not come before the High Court Division in clean hand, the criminal proceeding and certificate case is pending relating to money recovery against the petitioner but suppressing the fact he filed the writ petition and as such the writ petition is liable to be discharged with cost.

The High Court Division held that the petitioner earlier got lease for toll collection of Gorai Bridge for the year of 2013-2014 and that lease agreement was cancelled due to non-payment of 3rd instalment. The petitioner issued 3 (three) cheques each for an amount of Taka 37,50,000 (totalling Taka 1,12,50,000), The cheques were dishonoured, the respondent issued legal notice but to no effect and as such the respondents were compelled to file a case under section 138 of the Negotiable Instrument Act, 1881 before the Senior Judicial Magistrate, Faridpur in Complaint Case No. 639 of 2014, and on transfer the learned Joint Sessions Judge, Faridpur on 20.03.2015 framed charged under Section 138 of the Negotiable Instrument Act, 1881 in Sessions case No. 91 of 2015 and 23.06.2015 has been fixed for taking witnesses. The respondent on 03.04.2014 filed certificate case before the certificate officer requesting to recover the above mention sum of Taka 1,12,50,000/-, that the certificate case being সি. সি নং- ২২০/১৩-১৪ is still pending for disposal, that the next date on 20.05.2015 has been fixed for hearing of the certificate case. The criminal proceeding and certificate case is pending relating to money recovery against the petitioner but suppressing the fact he filed the writ petition and as such the writ petition is liable to be discharged with cost. Md. Siddiqur Rahman. -Vs.- Government of Bangladesh, represented by the Secretary, Ministry of Communication, Bangladesh Secretariat, Ramna, Dhaka and others. (Spl. Original) 18 ALR (HCD) 153-156

Constitution of Bangladesh

Articles 102 Article 44 read with

Public Servants (Retirement) (Amendment) Ordinance, 2011 

Section 4- Reinstate in the service.

The Rules and Regulations, which are contrary or repugnant to the laws or statute, are void and are of no legal effect.

The High Court Division held that, since the petitioners are public servants, serving in a 100% shares owned Government bank are entitled to continue their service therein till the completion of 59 (fifty nine) years of age as per section 4 of the Public Servants (Retirement) (Amendment) Ordinance, 2011. But the respondents illegally retired the petitioners at the age of 57 (fifty seven) years that is not tenable in the eye of law. Sayed Mushahid Ahmed and 6 others Vs. Secretary, Ministry of Finance (Banking Division) and others (Spl. Original) 18 ALR (HCD) 142-146

Constitution of Bangladesh

Article 102-The High Court Division in exercise of the powers under Article 102 of the Constitution can interfere with policy decisions in appropriate circumstances. The High Court Division cannot allow a policy decision to be based on wrong legal premises or violate the fundamental rights guaranteed by Constitution.

The High Court Division held that in these writ petitions, the High Court Division is not questioning the propriety of the policy decision. The High Court Division is expressing its reservation on the manner of implementation of the policy. 

There may be situations where the policy decision is acceptable but the manner of implementation is unacceptable. The issues raised in these writ petitions is that the petitioners had a chance, hope, reasonable expectation and that was detrimentally affected by implementation of these নীতিমালা-২০১৮ and as such, the manner of im- plementation seems to the High Court Division is manifestly arbitrary. Md. Abul Asad and others -Vs. Ministry of  Education, Secondary and Higher Education Division, Bangladesh Secretariat, Dhaka and others.(Spl. Original) 18 ALR (HCD) 65-75 

Constitution of Bangladesh

Article 102

Bank Company Act, 1991

Sections 45 and 49-Bangladesh Bank having its authority considering all aspects of the banking sector has issued the said BRPD circular No. 05 for the interest of national economy involved with the banking sector for recovery of defaulted loan money. Whether it is for the betterment of the depositors or not, is a disputed question of fact which can not be decided here and it is purely Bangladesh Bank's policy in dealing with the process of loan recovery from the defaulted borrowers under a special circumstances.

The High Court Division is of the view that the Bangladesh Bank having its authority considering all aspects of the banking sector has issued the said BRPD circular No. 05 for the interest of national economy involved with the banking sector for recovery of defaulted loan money. Whether it is for the betterment of the depositors or not, is a disputed question of fact which can not be decided here and it is purely Bangladesh Bank's policy in dealing with the process of loan recovery from the defaulted borrowers under a special circumstances. In fact, it is a bailout (capital injection) programme to support the defaulted borrowers who suffered business loss for the reasons beyond control and in the developed countries including USA, EU this concept is well accepted and that using this concept the developed countries on many occasions could able to address their existing financial crisis. Considering the above, the cases cited by Mr. Murshid are not applicable in this particular case in view of its distinguishable facts. Moreover, the banks are supposed to question against this BRPD circular alongwith the petitioners but no bank company has come forward before the Court against the said impugned circular and that respondent No. 59 the Bankers Association of Bangladesh is rather supporting the said BRPD circular. Besides, the affidavit filed by the Bangladesh Bank shows that the process for issuance of the circular was initiated in June, 2018, long before issuance of the Rule in this writ petition and so the allegations of Mr. Murshid that in order to frustrate the present Rule, the circular was issued, is not acceptable under the above situation. Human Rights and Peace for Bangladesh (HRPB) represented by its Secretary-in-charge and others. Vs. Bangladesh represented by the Cabinet Secretary, Cabinet Division and others, (Spl. Original) 18 ALR (HCD) 117-135

Constitution of Bangladesh

Article 102-Every person newly appointed to a service or a post under Government should at the time of the appointment declare the date of his by the Christian era with as as far as possible confirmatory documentary evidence, such as a Matriculation Certificate municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under Para 117 should be recorded in the history of service, service book, or any other record may be kept in respect of the Government servant's service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without previous orders Administration. of the Local

The High Court Division further held that pertinently, regulations for age correction as it could be seen from Compilation of the General Financial Rules by Ministry of Finance it has been stated in para 116 that every person newly appointed to a service or a post under Government should at the time of the appointment declare the date of his by the Christian era with as as far as possible confirmatory documentary evidence, such as a Matriculation Certificate municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under Para 117 should be recorded in the history of service, service book, or any other record may be kept in respect of the Government servant's service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without previous orders of the Local Administration. So, all these admitted facts, dates and the chain of circumstances which started early from 1987 till date manifestly surface a pertinent question what prevented the petitioner to go for a correction of date of birth in the Certificate before 1987? No acceptable, logical and plausible answer has been given in the fore corner of the writ petition. The reasons that has been afforded to justify this is that due to inadvertence and lack of guidance under the then prevailing socio economic circumstances no measure were taken to correct the apparent error in the S.S.C Certificate of the petitioner. This cannot be accepted being bereft of any rationale. Fortified with all the decisions and the discussions, The High Court Division is of the view that this rule should be discharged being devoid of any substance. In the result, the rule is discharged, however, without any order as to costs. Md. Moshiar Rahman -Vs- Government of the People's Republic of Bangladesh (Spl. Original) 18 ALR (HCD) 16-22

Constitution of Bangladesh

Article 102 read with Vat Act, 1991

Section 42-When an inflexible pre- condition is attached for preferring an Appeal to the Appellate forum like the Appellate Tribunal the Appeal will not be an efficacious remedy as it may create undue hardship on the party wanting to prefer the Appeal.

The High Court Division held that to prefer an Appeal to the Appellate Tribunal the petitioner was required to deposit ten percent of the demanded amount i.e. approximately Taka 8 (eight) crore which according to the learned Advocate for the petitioner was a matter of great hardship and burden and therefore in our opinion the provision for Appeal to the Tribunal against the impugned order was not an efficacious remedy for the petitioner and for him this Application under Article 102 of the Constitution is maintainable. Warid Telecom International Vs. National Board of Revenue, represented by its Chairman, Segunbagicha, Dhaka and others (Spl. Original) 17 ALR (HCD) 1-4

Constitution of Bangladesh

Article 102

Grameen Bank Ordinance [XLVI of 1983] Section 14 Writ petition is only maintainable filed by the aggrieved person.

The Appellate Division observe that the writ petition filed by 9 (nine) Directors is not maintainable on two grounds firstly, they are not 'aggrieved persons' within the meaning of Article 102 of the Constitution and secondly, since the aggrieved person Prof. Muhammad Yunus having challenged the impugned orders himself, they have no locus-standi to challenge the same orders by a separate petition for, if such process is allowed multiplicity of proceedings would crop up and there would be likelihood of conflicting decisions over the same subject matter, in which event, instead of doing justice, the ends of justice would be defeated. Professor Muhammad Yunus - Vs. Bangladesh (Civil) 18 ALR (AD) 100-113

Constitution of Bangladesh

Article 102-Locus-standi

Since the selection of a site for construction of Union Parishad Office Complex is a policy decision, the writ petition is not maintainable in law.

The High Court Division held that selection of site for construction of Union Parishad Office Complex is a policy decision and administration function of the government and the said decision cannot be called in question and examined in a summary proceeding under Article 102 of the Constitution unless there is clear evidence of malafide. The petitioner has no locus-standi to challenge a policy decision of the Government. Samsunnahar Begum - Vs.- Government of Bangladesh and others (Spl. Original) 16 ALR (HCD) 324-327

Constitution of Bangladesh

Article 102 read with

সড়ক পরিবহন আইন, ২০১৮

Under the constitutional jurisdiction a lump sum compensation can be awarded directing the wrong doers to pay in favour of the family members of the victim. Here, the victim Rajib was the elder brother of his two minor brothers and although he was a student, but only earning source of these two younger minor brothers who are now at stake both socially and financially. Therefore, for their betterment considering the socio-economic position of the country and also keeping in view of the relevant laws with regard to award of compensation, instead of awarding taka one crore as claimed by the petitioner, the High Court Division consider just and proper, if the respondents No. 7 and 8 are directed to pay a lump sum amount of Tk. 50,00,000.00 (fifty lac only) to be borne by them equally in favour of two minor brothers of the deceased, Rajib.

The High Court Division has gone through the সড়ক পরিবহন আইন, ২০১৮ and The High Court Division finds that certain suggestions given by the enquiry committee have not been covered by the said Act. But those are very essential and relevant in order to prevent recurrence of road accident. Therefore, The High Court Division is giving the following directions 10 be implemented immediately by the respondents No. 1-6:

i). Door of the public buses shall be closed in running position and it shall be opened only at the particular/specific stops (designated bus stoppage).

ii). The respondents shall arrange for sudden/random dope test of the driver(s) of all kinds of vehicles on various points where they use to cheque relevant papers of the vehicle.

iii). The respondents shall ensure sound pollution from motor vehicles in the road and shall prevent the drivers of the vehicles except ambulance and fire service vehicles from using Horn in front of Educational Institutes, Hospitals and Residences.

(iv) No vehicle should be allowed to stop for passenger boarding or departure on active road. 

B) The respondents shall implement the following directions within 06 (six) months from the date of receipt of the judgment:

1). The respondents shall arrange bus routes under franchise system among all the existing bus companies under one company with regard to zone or line in all the metropolitan cities to be run by separate unique color code in order to remove the ill competition between the companies and the drivers.

2). Arrange vision/ dope test at the time of granting license and renewal thereof relating to all vehicles.

3). The respondents shall install close circuit camera (CCTV) on different maximum points of the major roads, especially in the strategic locations of all the metropolitan cities. This will help investigation system and also in traffic management and operation system.

4). The respondents shall install passenger sheds.

(v) Trip based or daily based driver appointment in the public bus should be banned.

(vi) Driver of the public bus should be appointed by a company with a monthly salary.

In view of the above, the Rule is made absolute. Md. Ruhul Quddus Vs. The Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Home Affairs and others. (Spl. Original) 16 ALR (HCD) 280-290

Constitution of Bangladesh 

Article 102

VAT Act [XXII of 1991]

Section 55- Whether the writ is maintainable as there alternative forum to appeal.

The High Court Division held that with regard to the maintainability of the Rule as to having alternative forum to appeal against the impugned order under the VAT Act, 1991. The High Court Division finds many decisions of the High Court Division where it has been categorically observed that when an illegality is apparent on face of record and the respondents performing the function of the Republic have acted totally without jurisdiction, invoking forum as provided under Article 102 of the Constitution is not a bar. For the reason as discussed herein above the High Court Division finds that the writ petition is maintainable so far it relates to demand which have been made by the respondent concern beyond the period of 5 (five) years i.e July 2009-10.09.2009 under section 55 of the Act, 1991 and the demand of interest 2% amounting to tune of TK. 28,54,247,00 under section 37(3) of the Act, 1991 being passed without jurisdiction. Dhaka Regency Hotel & Resort Ltd. -Vs- Government of the People's and others. (Spl. Original) 16 ALR (HCD) 209-215

Constitution of Bangladesh

Article 102

Bangladesh Boys Scouts Samity Order [CXXI of 1972] 

Whether Bangladesh Scout is a voluntary independent organization and whether writ petition is maintainable or not.

Whether the action of Bangladesh Scouts as regards determining petitioner's retirement age is amenable to writ jurisdiction. Article 102 of the Constitution has empowered the High Court Division to exercise power of judicial review in respect of enforcement of fundamental rights (which is ob- ligatory on the High Court Division) and, amongst others, declaring any act or action taken by a person performing any functions in connection with the affairs of Republic or of local authority to be without lawful authority under writ of certiorari.

The High Court Division held that Bangladesh Scouts is a statutory body being constituted as body corporate by P.O. 111 of 1972. Therefore, in line with the said wider and expanded definition of the person performing functions in the affairs of the Republic or local authority, the High Court Division is of the view that the action Bangladesh Scouts determining the retirement age of the petitioner, either by the service Rule or by any office order, is amenable to writ jurisdiction if the employee of the scouts like the petitioner is aggrieved by such action or order. In view of above, the High Court Division hold that these writ petitions are maintainable. On the other hand, since interpretation of law is involved in these writ petitions, writ in maintainable on this point as well. Md. Mazibar Rahman Mannan -Vs- Bangladesh Scouts, National Head Quarters and others. (Spl. Original) 16 ALR (HCD) 191-196

Constitution of Bangladesh

Article 102 read with Noakhali Science and Technology University Act [XLI of 2001]

Section 11-Public universities are amenable to Writ Jurisdiction under Article 102 of the Constitution.

Since the university has been receiving funds from the government and performing duties and functions mandated by a statute and the appointment and removal have been made by the Hon'ble President of the Country, the office of the Vice Chancellor of the university is a 'Public Office'. Precedents have been established that public universities are amenable to Writ Jurisdiction under Article 102 of the Constitution.

The High Court Division held that the Vice Chancellor of the University performs his functions under the law, that is to say, his powers, duties and responsibilities are prescribed by section 11 and other provision of the said Ain. It is also stated that the University receives grants to mitigate its expenses and other necessities on early basis from the government. In other words the Government provides a substantial amount of money to the University for its Maintenance and other purposes. Since the university has been receiving funds from the government and performing duties and functions mandated by a statute and the appointment and removal have been made by the Hon'ble President of the Country, the office of the Vice Chancellor of the university is a 'Public Office'. Precedents have been established that public universities are ame- nable to Writ Jurisdiction under Article 102 of the Constitution. It is at this stage solely upon the averments as stated above in the petition the Writ Petitioner Dr. Mohammad Anwarul Basher moved this petition under Article 102 of the Constitution and obtained the present Rule. Dr. Mohammad Anwarul Basher. Vs. Dr. M. Wahiduz- zaman, Vice Chancellor, Noakhali Science and Technology University and 2 others (Spl. Original) 16 ALR (HCD) 115-122

Constitution of Bangladesh

Article 102-Whether the High Court Division is empowered to quash the proceedings of the cases pending in the Druto Bichar Tribunal under Article 102 of the Constitution. Munzurul Ahsan Munshi - Vs.- Ministry of Home Affairs, Bangladesh Secretariat, Dhaka-1000 and others (Spl. Original) 16 ALR (HCD) 1-8

Constitution of Bangladesh

Article 102-A writ of certiorari has to be filed by an aggrieved person.

The High Court Division held that the petitioner himself filed this writ petition in the nature of certiorari and quo warranto. Be it mentioned that the petitioner was appointed back in the 2007 and had been performing his duty as a teacher and, all on a sudden, when the respondent No. 1 Dr. M. Wahiduzzaman was appointed as Vice Chancellor by the Hon'ble President in the year 2015 and in that capacity when he completed three years out of his four years tenure, the petitioner filed the writ petition both in the nature of certiorari and quo warranto. A writ of certiorari, as the High Court Division knows has to be filed by an aggrieved person. Therefore, the High Court Division cannot reconcile why after three years of the appointment of the respondent No. 1 as Vice Chancellor at the fag end of the tenure, the petitioner has come up with this writ petition under certiorari and quo warranto. Even in a slightest possible way if the High Court Division accept that the petitioner is an aggrieved person within the meaning of certiorari, one and only comment that the High Court Division can unhesitantly make against him is that certainly he possesses some venoms in his heart against Dr. M. Wahiduzzaman which have driven him to bring this petition of quo warranto. It is because that he has been aggrieved for that reason and not for any public interest, he had indulged in excesses to bring this petition. It is not at all for any public interest or public purpose. And the appoint- ment in question cannot also be viewed as unreasonable or of such an impact so to infer that the same does not go with the qualifications and the expertise which has been achieved by respondent No. 1 Dr. M. Wahiduzzaman. In the result, the Rule is discharged. Dr. Mohammad Anwarul Basher. -Vs. Dr. M. Wahiduzzaman, Vice Chancellor, Noakhali Science and Technol- ogy University and 2 others (Spl. Original) 16 ALR (HCD) 115-122

Constitution of Bangladesh

Article 102-In order to settle the principles of law as regards Legitimate Expectation the Appellate Division has laid down certain guideline in the case of LGED-Vs.- Mizanur Rahman which sum up under;

1) Whenever any vacancy in LGED is created in the revenue set up it shall consider for absorption of employees or officers of the development projects within the meaning of section 2 (ga) of the Rules, 2005 if the project in which she/he is working is completed subject to the condition that such employee or officer has requisite qualifications for the said post.

II) Whenever a vacant post is created in the revenue budget, the LGED shall absorb/transfer any employee or officer from the development project mentioned in clause (i) to fill up that post in accor- dance with Rules of 1985 and the ECNEC's decision dated 10TH January, 2008.

III) An officer or employee shall be absorbed if she was appointed in the development project within the meaning or rule 2(Ka) of Rules 2005 in accordance with the procedures prescribed for appointment in public employment.

IV) An officer or employee must have requisite qualifications for the post in which he is seeking absorption.

V) An officer or employee must have continuity service in the project in which he is working.

VI) An officer or employee must have satisfactory service record before his case is considered for regularization in the revenue budget.

VII) If an officer and employee whose rank and status does not relate to the posts advertised by the impugned notifications on the day of its publications, such officer or employee would not be eligible for consideration for absorption.

VIII) The employees and officers who have been working in the development projects mentioned in clause (I) on monthly pay basis would only be eligible for consideration for absorption in the revenue budget.

IX) Unless and until vacancies in the revenue budget in the LGED are created the employees and officers of the development project mentioned in clause (I) can not claim as of right to be absorbed in the revenue budget.

X) While considering and selecting an employee or officer of the development project for absorption in the revenue budget, the appointing authority shall maintain strictly the prevailing quota system for employment in the public employment being followed by the Government.

XI) The LGED shall consider the case of those working on master roll basis for absorption in the revenue by phases if they have requisite qualifications subject to the availability of vacancies according to their seniority. Md. Arosh Mia and others -Vs.- Ministry of Agriculture and others. (Spl. Original) 15 ALR (HCD) 175-184

Constitution of Bangladesh

Article 102 read with

Bangladesh Medical and Council Act [LXI of 2010] Dental

Sections 5(20) and 5(24)-It is a settled principle of law that no one is allowed to take advantage of his own wrong.

Since the petitioner secured her admission to the medical college by means of fraud, she is not entitled to any prior show cause notice at all.

The High Court Division held that after admission of the petitioner to 1st year MBBS course in the respondent no. 8- college, everything went off without any hitch and she continued her studies for three years in a row. Thereafter all of a sudden, a whistle-blower, namely, one Mamunur Rashid, a senior journalist of "The Daily Samakal", lodged a complaint dated 01.02.2017 with the BMDC about the perpetration of fraud relating to admission of the petitioner to the respondent no. 8-college for the session 2013-2014. On receipt of that complaint, the BMDC caused necessary inquiries by cross-checking her result of the admission test with the record available with the conducting authority, that is to say, Directorate of Health Services and found her alleged merit score of 127.38 and merit position of 45244 fictitious and baseless. Since the petitioner secured her admission to the medical college by means of fraud, she is not entitled to any prior show cause notice at all. Rupa Das Vs. Ministry of Health and Family Welfare and others (Spl. Original) 15 ALR (HCD) 10-19

Constitution of Bangladesh

Article 102-When the writ-petitioner was not actually in the service can be challenged under Article 102 of the Constitution.

Taking into consideration the case of Syed Abdul Ali Vs. Secretary, Ministry of Cabinet Affairs, Establishment Division and others, (1979) 31 DLR (AD) 256, the Appellate Division is of the view that since the e order impugned before the High Court Division had been issued after retirement of the writ-petitioner-respondent he cannot be treated in the service of the Republic. Thus issuance of the order impugned before the High Court Division upon the writ- petitioner-respondent, when he was not actually in the service can be challenged under Article 102 of the Constitution. Government of Bangladesh, represented by the Secretary, Ministry of Social Welfare, Bangladesh Secretariat, Ramna, Dhaka and others. -Vs.- Md. Akterun Nabi. (Civil) 16 ALR (AD) 71-76

Constitution of Bangladesh

Article 102-Whether the writ petitioners as teachers of non- government colleges can claim reimbursement of their salary of such colleges from the Government?

The constitution does not permit the Court to direct or advice the executive in the matter of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.

No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government.

The Appellate Division observed that the High Court Division in fact, passed the impugned order to compel the executive to pay government portion of salaries inasmuch as the government did decide as yet to pay salaries to them or even did not assure them that the government would pay the same. In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty. The mere fact that recognition and registration have been granted to an institutions or, for that matter, for conducting new course or subject would not give rise to a presumption of a financial sanction. A financial liability can not be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government. Considering the facts and circumstances, the Appellate Division is of the view that the High Court Division exceed its jurisdiction in passing the impugned command of compelling the executive for enlisting the names of the writ petitioners in the monthly payment order and to pay the arrear salaries and other benefits. Accordingly, the Appellate Division finds substance in the petition. Thus, the petition is disposed of. The judgment and order of the High Court Division is set aside. Government of Bangladesh and others - Vs.- K.M. Ekbal Hossen and others (Civil) 16 ALR (AD) 80-83

Constitution of Bangladesh

Article 102 -After two years from the date of sanction and investment of huge amount of money by the respondents a vested right has accrued in letter's favour. RAJUK cannot now cancel the sanction in such an arbitrary manner without giving notice claiming that due to mistake and misrepresentation the building plans were sanctioned and permission was given for construction.

The Appellate Division held that it appears that in the instant case after obtaining the sanction from RAJUK to construct three multistoried buildings the respondents have invested huge amount of money for construction of those buildings. The Appellate Division held is of the view that after two years from the date of sanction and investment of huge amount of money by the respondents a vested right has accrued in letter's favour. RAJUK cannot now cancel the sanction in such an arbitrary manner without giving notice claiming that due to mistake and misrepresentation the building plans were sanctioned and permission was given for construction. In view of the above, the Appellate Division does not find any substance in the submission of the learned counsel for the petitioners. The Appellate Division finds no illegality is committed in the judgment of the High Court Division calling for it interference. Therefore, the leave petition is dismissed. Rajdhani Unnyan Kartripakshya (RAJUK) Dhaka and others Vs. Water Front Apartment Limited and others (Civil) 17 ALR (AD) 23-25

Constitution of Bangladesh

Article 102 -The writ petitioner (5) has to satisfy the High Court Division that no other equally efficacious remedy is provided by law to him, the High Court Division itself could not take the role of the writ petitioners that no other equally efficacious remedy was provided by law to them other than to file the writ petition. And by no logic the High Court Division could take into consideration the verbal submissions of the learned Attorney General in disposing of the writ petition exparte.

The Appellate Division held that it is necessary to state that the Rule Nisi in the writ petition was issued on the application of the writ petitioners and not suo moto by the Court and the nature of the writ petition was also not in the nature of any public interest litigation. From a reading of article 102 of the Constitution, it appears to us that the framers of the Constitution did not think of disposal of a writ petition filed by an aggrieved party in his absence inasmuch as the exercise of power under article 102(2) of the Constitution is circumscribed with the condition that the writ petitioner (s) has to satisfy the High Court Division that no other equally efficacious remedy is provided by law to him, the High Court Division itself could not take the role of the writ petitioners that no other equally efficacious remedy was provided by law to them other than to file the writ petition. And by no logic the High Court Division could take into consideration the verbal submissions of the learned Attorney General in disposing of the writ petition exparte. Mujibar Rahman (Md) and another -Vs. Secretary, Ministry of Local Government, Rural Development Division, Government of Bangladesh, and others (Civil) 17 ALR (AD) 18-23

Constitution of Bangladesh

Article 102 read with Administrative Tribunal Act [VII of 1981]

Section 8 The decisions and the orders of the Tribunal are not meaningless. Section 8 of the Act says that its decisions and the orders are "binding on the parties". The High Court Division exercising its jurisdiction under article 102 will not advise the Tribunal as to the procedure for implementation of its decisions and orders. The Tribunal will take decisions itself. If the Tribunal is wrong in its decisions, the Administrative Appellate Tribunal will correct the same, for an appeal lies against "any order or decision of the Tribunal" to the Administrative Appellate Tribunal. The questions and problems relating to execution will have to be resolved by the Administrative Tribunal or the Administrative Appellate Tribunal, as the case may be, within the ambit of the Acts and the Rules framed thereunder. Government of Bangladesh -Vs. Md. Abdul Maleque Miah (Civil) 19 ALR (AD) 109-115

Constitution of Bangladesh

Article 102 read with Administrative Tribunal Act [VII of 1981]

Section 10A read with Penal Code [XLV of 1860]

Section 166-The respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal.

The Appellate Division is of the view that the Administrative Tribunal Act, 1980 ought to be interpreted in such a manner that the Act is consistent with the constitutional provisions and legislative intent and may provide for complete and self-sufficient remedy to the affected parties. The Appellate Division is of the opinion that the respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal. If not otherwise barred, writ-petitioner- respondent No. 1 of all the appeals can still go to the Administrative Tribunal for execution of its decisions and orders. The Administrative Tribunal is quite competent to come to a decision about the mode of implementation of its own decisions and orders. In case of failure, the said writ- petitioner-respondent has been given further remedy under section 10A of the Act. Government of Bangladesh -Vs.- Md. Abdul Maleque Miah (Civil) 19 ALR (AD) 109-115

Constitution of Bangladesh

Articles 102 and 117-Whether a Government servant can raised the plea of violation of fundamental rights in case of transfer.

The High Court Division is of the opinion that since transferability is one of the terms and conditions of service and for violation of which the petitioner has alternative forum to redress his grievance, that is to say, the Administrative Tribunal provided under Article 117 of the Constitution not the writ jurisdiction provided under Article 102 of the Constitution. And as such the writ petition is not maintainable. Md. Ismail Hossain - Vs.- Government of Bangladesh and others (Spl. Original) 23 ALR (HCD) 148

Constitution of Bangladesh

Article 102-The Court should not ordinarily interfere with policy decisions, unless clearly illegal or unconstitutional.

In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty.

A financial liability cannot be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government.

The Appellate Division opined that in this case, the High Court Division in fact, passed the impugned order to compel the executive to pay government portion of salaries inasmuch as the government did decide as yet to pay salaries to them or even did not assure them that the government would pay the same. In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty. The mere fact that recognition and registration have been granted to an institutions or, for that matter, for conducting new course or subject would not give rise to a presumption of a financial sanction. A financial liability cannot be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government. Considering the facts and circumstances, the Appellate Division is of the view that the High Court Division exceed its jurisdiction in passing the impugned command of compelling the executive for enlisting the names of the writ petitioners in the monthly payment order and to pay the arrear salaries and other benefits. Government of Bangladesh and others -Vs.- Mohammad Jainal Abedin and others (Civil) 21 ALR (AD) 61-64

Constitution of Bangladesh

Article 102-A judgment or decree obtained by practicing fraud upon a Court binds no such Court or any one else claiming through such judgment or decree though it has not been set aside or reversed.

Whether complex question of facts is involved and matter requires through probe on facts and the question of title, after cancellation of lease deed, is disputed so the writ petitioners were not entitled to get relief in writ jurisdiction.

Article 102 of the Constitution is extra ordinary equitable and discretionary. Prerogative writs mentioned therein may be issued for doing substantial justice. It is, therefore, of utmost necessity that writ petitioner approaching the writ Court must come with clean hands.

A writ of mandamus is controlled by equitable principles and can be issued only in favour of a person who comes to the court with clean hands and who is not guilty of fraud or bad faith in respect of the matters in controversy between the parties. It will not be granted where more harm than good will result from its issuance.

The Appellate Division held that while exercising the extra ordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. The writ petitioner must disclose all material facts without any reservation even if they are against him. Where the source of the right is rooted in fraud or established dubious considerations, no right stricto sensu for implementation could arise and for less enforceable by way of mandamus in the writ jurisdiction. From the process adopted by Ataul Haq, which is apparent from the discussion made above, to get decree and transfer deed registered through court, the Appellate Division has to hesitation to hold that his hands are not clean. A writ of mandamus is controlled by equitable principles and can be issued only in favour of a person who comes to the court with clean hands and who is not guilty of fraud or bad faith in respect of the matters in controversy between the parties. It will not be granted where more harm than good will result from its issuance. In view of the facts and circumstances stated above, this is to observe that the High Court Division rightly refused to exercise its extra- ordinary jurisdiction in the instant writ petition. Accordingly, the appeal is dismissed. Nadira Huq -Vs.- Rajdhani Unnayan Katripakkha (RAJUK) & others (Civil) 21 ALR (AD) 10-18

Constitution of Bangladesh

Article 102(2)

উন্নয়ন প্রকল্প হইতে রাজস্ব বাজেটে স্থানান্তরিত পদের পদধারীদের নিয়মিতকরণ ও জ্যেষ্ঠতা নির্ধারণ বিধিমালা, 1995 and 2005

Civil Service Recruitment Rules, 1981 read with

Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 read with

Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985

No court can direct the Government or its instrumentalities to regularize the service of the officers and employees of the development project in the revenue budget in the cases where statutory requirements have not been fulfilled. Regularization cannot be claimed as a matter of right. It is statutory requirement that opportunity shall be given to eligible persons by public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the Government.

Accordingly, it is observed by the Appellate Division that:

1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation can not be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.

2. While transferring any development project and its manpower to revenue budget the provisions provided in the notifications, government orders and circulars quoted earlier must followed. However, it is to be be remembered that executive power can be exercised only to fill in the gaps and the same cannot and should not supplant the law, but only supplement the law.

3. Before regularization of service of the officers and employees of the development project in the revenue budget the provisions of applicable "Bid- himala" must be complied with. Without exhausting the applicable provisions of the "Bidhimala" as quoted above no one is entitled to be regularised in the service of revenue budget since those are statutory provisions.

4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complication. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.

5. A mandamus can not be issued in favour of the employees directing the government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.

6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.

7. Opportunity shall be given to eligible persons by inviting applications through public notification and appointment should be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.

8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme.

In view of the discussion made above and since it is not apparent from the judgment of the High Court Division and other materials available in the record that the procedure provided in the Government notification, circulars or orders and the process of appointment indicated in the "Bidhimalas" 1995 or 2005 have been followed duly for appointing the writ petitioners and that they are no longer in service in view of terms of appointment letters and contracts, the direction of the High Court Division to absorb/regularise their service giving continuity of the same can not be approved. So, the same is set aside. In the light of the observation made above, the appeal and review petition are disposed of. The Secretary, Ministry of Fisheries and Livestock & others -Vs.- Abdur Razzak and others (Civil) 16 ALR (AD) 140-158

Constitution of the Bangladesh

Article 102(2)

ICB (Officers and Employees) Service

Regulations, 1993

Regulation 6(3)

Administrative Tribunals Act, 1980

Section 4- Circulars issued by the Government are for the guidance of the executives and the same have no legal force.

The Investment Corporation of Bangladesh is a statutory public authority as per section 2 (aa) of the Administrative Tribunals (amendment) Ordinance, 1984 and included in the schedule of the Administrative Tribunals Act, 1980. As per amended provision of section 4 of the said Act, 1980 the Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service. Indisputably, promotion falls within the terms and conditions of service as such the grievance of the petitioners absolutely falls within the jurisdiction Administrative Tribunal. of the Since the impugned Nitimalas have no force of law the same can be challenged before the Administrative Tribunal. Hur Akter Ameen, and others Vs. Ministry of Finance, and others. (Spl. Original) 21 ALR (HCD) 230-235

Constitution of Bangladesh

Article 102(2)-A mere a mistake or an inadvertent omission of entry in the record of rights in respect of the land of the Supreme Court in the S.A., R.S. and Dhaka City Settlement operation would not af- fect the right, title and interest of the Supreme Court in respect of the land in question in view of the historical perspective, constitutional development of the Supreme Court of Bangladesh and other historical documents /correspondences. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. Vs. Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63

Constitution of Bangladesh

Article 102(2)(a) read with

Artha Rin Adalat Ain [VIII of 2003]

Section 5, 20, 28, 33(7Ka), 33(7Kha), 44, 49/52, 57 and 58

The Court may correct its own mistakes by invoking, the umbrella provision, embodied under section 57 of the Ain, 2003 to do justice and to undo injustice despite the provisions of section 20 of the Ain, 2003. It has to remember that the provisions of section 20 of the Ain, 2003 is neither absolute nor sacrosanct nor untouchable. The parties to the suit cannot and should not suffer for the mistake committed by the Court itself. On perusal of the entire edifice of the Ain, 2003, it becomes visible to us that the Code of Civil Procedure, 1908 shall be applicable subject to not being inconsistent with the provisions of the Ain, 2003. The Adalat may review its own order by invoking section 57 of the Ain, 2003 with extreme circumspection in an exceptional case.

Bank officials are very much reluctant to provide the bank statement containing the outstanding dues of the borrower even after issuance of the direction of the Court. This sort of attitude is tantamount to contempt of Court. In this circumstance, if bank official does not comply with the order of the court, then the court may proceed against them under section 52 of the Ain, 2003 or in an appropriate case, it may refer to the High Court Division for taking punitive measure against the delinquent officials. It is expected that Bank and Financial Institutions should comply with the order of the Court with utmost expedition.

The High Court Division final conclusion is as under: Auction notice was not issued in accordance with the mandatory requirement of law and auction process was not conducted as per the provision of section 33(1) of the Ain, 2003 and therefore, issuance of certificate of ownership by the stroke of a pen by the Executing Court is patently illegal.

i. In case of issuance of certificate under section 33(5) of the Ain, 2003, it is obligatory to exhaust the auction process under sub-sections (1) and (4) of section 33 of the Ain, 2003. If the certificate of title is issued upon without exhausting the procedure of section. 33(4) of the Ain, 2003 that will make the said provision useless and nugatory. In such a case, the Bank or Financial Institutions by a show up auction process under section 33(1) of the Ain, 2003 will straight apply for a certificate of title with an ulterior motive depriving the judgment-debtor from obtaining the actual market price of the property. So we hold the view that before issuance of certificate of title to the mortgage property or other property of the judgment-debtor, the Executing Court shall follow the provisions of sections 33(1) and 33(4) of the Ain, 2003 and after that it will fix the actual market price of the mortgage property or other property and succinctly be stated in the certificate of title so that the outstanding dues if any may be adjusted later on. In such a case, the Executing Court shall determine the actual market price of the mortgage property on the basis of a report from the Sub-Registrar of the local jurisdiction. Apart from the same, in certificate issuing order, the Executing Court shall state as to whether the decretal amount has been adjusted wholly, if not, the amount of outstanding dues should state therein. It repeatedly comes to our notice that the Executing Court mechanically allows the prayer of issuance of certificate of title. Mechanical issue of certificate of title is deprecated by this Court.

ii. The Court should not be tempted to follow the precedent of one case by matching color of another case. The Court should not be oblivious that a single significant or material fact may change the entire edifice of the case as no two cases are similar. Every case has to decide upon its own facts and peculiar circumstances, therefore, the Court has to incur infinite painstaking.

iii. The principle enunciated in the case reported in 15 BLT (HCD) (2007) 425 and 63 DLR (2011) 282 is based on sound reasonings and the same was strengthen and fortified by incorporating sub-sections 7Ka and 7Kha of section 33 by amended Act XVI of 2010.

iv.Sub-sections 7Ka and 7Kha of section 33 of the Ain, 2003 were incorporated in order to mending the lacuna of the provision of sub-sections 5, 7 and 9 of section 33 of the Ain, 2003. Moreover, in the case of Sk. Mohiuddin v. Joint District Judge & Artha Rin Adalat No. 3, Dhaka and others, supra, the case of 15 BLT (HCD) (2007) 425 was not considered.

V. Section 33(9) of the Ain, 2003 provides that when the rights of possession and use of any property under sub-section (5) or the title of any property under sub-section (7) vests in favour of the decree holder, the suit for execution of the said decree shall, subject to the provisions of section 28, be finally disposed of. The word 'final' is not absolute. It has to be read with sections 28, 33(7Ka) and 33(7Kha) of the latest amended Ain, 2010. Therefore, we strongly hold the view that mere issuance of certificate under sections 33(5) and 33(7) of the Ain, 2003 is not enough to finally dispose of the execution case. If the possession of the mortgage property or other property attached by the Executing Court for realizing outstanding loan money remains with the decree holder, the Executing Court may dispose of the execution case in view of section 33(9) of the Ain, 2003. Resorting to literal meaning of section 33(9) of the Ain, 2003 will be a great concern and it may cause devastating consequence, therefore, harmonious construction of the aforesaid provisions is sine qua non to fulfill the purpose of the legislature.

vi. As per the mandate of section 58 of the Ain, 2003, the Government may, by notification in the official gazette, make rules to give effect to the provisions of this Ain, 2003. Some provisions of the Ain, 2003, need more clarification and to give effect to the provisions therein for the smooth functioning of the Artha Rin Adalat. The Government may formulate comprehensive delegated legislations and the necessary forms like issuance of certificate of title, certificate of possession, enjoyment of usufructs and sale of the mortgage property etc. should be prescribed therein to do away with the confusions crept in the Ain, 2003.

vii.In view of section 5 of the Ain, 2003, it appears that two types of suits may be filed before the Artha Rin Adalat. One is mortgage suit for sale or foreclosure and the other is Artha Rin Suit for recovery of loan money. In the former suit, the Adalat shall pass preliminary decree and in the later suit, the Adalat shall pass final decree. A decree awarded by the Adalat in any suit instituted under the Ain, 2003 except mortgage suit under sub-section 3 of section 5 of the Ain, 2003, shall be deemed to be a preliminary decree of foreclosure in favour of the plaintiff financial institution; and as soon as the auction sale is held in continuation of the decree of the mortgage immovable property in favour of the plaintiff against the loan, the said preliminary decree shall be deemed to be the final decree, and the sale shall be final and the purchase shall be valid and thereafter, the judgment- debtor shall have no right to redeem the said mortgaged property.

viii.In this case, auction was not conducted in accordance with law. Moreover, no auction sale was held. Therefore, the right of redemption has not yet been extinguished by operation of the Ain, 2003 or the Limitation Act, 1908.

ix. The petitioner Bank did not file any mortgage suit. Admittedly, it filed Artha Rin Suit for recovery of Tk. 5,20,370.62. Admittedly, the principal amount was Tk. 5,20,370.62 and execution case was filed for Tk. 6,51,888.82. The judgment-debtor on 03.12.2006 paid Tk. 2,00,000/-, on 12.12.2006 paid Tk. 95,000/-, on 13.12.2006 paid Tk. 4,00,000/-, on 17.09.2007 paid Tk. 21,000/- and on 08.10.2009 paid Tk. 2,00,000/- and as such the judgment-debtor deposited Tk. 9,16,000/-. The decree holder did not deny the same to the Executing Court. The decree holder-Bank could not submit any statement of accounts to show that those amounts were adjusted. Moreover, the judgment-debtor is ready to pay off the rest of the outstanding dues to protect his homestead. As the mortgage property has not been sold by auction, therefore, the right of redemption of the mortgage property has not yet been extinguished; the learned Judge of the Executing Court by applying his judicial conscience rightly passed the impugned order, which is laudable, hence, the same does not call for any interference.

X. Title is legal ownership. Possession is physical control of the movable or immovable property. Possession is the prima facie evidence of ownership, called as nine out of ten points of law meaning that there is a presumption the possessor of a property or thing is owner of it and the other elements in order to have that property or thing must prove their title or better possessory right. Certificate of ownership or title equivalent to title deed. Title deed having no possession is only a paper transaction. Title deed is not acted upon unless possession is handed over to the title holder. It transpires from the record that the judgment-debtor-respondent No. 2 is engaged in furniture business in local district. In order to expand his business, he took loan of Tk. 3 lakhs later on extended upto 5 lakhs by mortgaging his last resort homestead measuring 0.1650 acres situated within the periphery of Kushtia District town on 10.03.2002. At the relevant time of issuance of certificate of ownership the value of the said property was more than one crore. The Executing Court assigning cogent and very convincing reasons allowed the application of the judgment- debtor. The main purpose of the Ain, 2003 is to realize the outstanding loan money of the Bank or any other Financial Institutions but not to snatch away the mortgage or any other property of the borrower. Having regard to the facts and circumstances of the entire case and intricate questions of law involved in this case, we are of the view that the Rule is devoid of any substance as all the moot issues stand decided against the petitioner-Bank. Consequently, the Rule shall fall through. As a result, the Rule is discharged. The City Bank Limited, Kushtia Branch, Kushtia -Vs- Artha Rin Adalat, Kushtia and another (Spl. Original) 21 ALR (HCD) 357-368

Constitution of Bangladesh

Article 102 (2) (a) (i)-Board has mechanically approved the proposal for dismissal without applying its mind, Board has no authority to accord such post facto approval to the order of dismissal.

The High Court Division considered view, the respondent No. 2 (Board) has mechanically approved the proposal for dismissal without applying its mind, vide its letter No. 31/Farid/3604 dated 22.05.2014 (Annexure- J). Board has no authority to accord such post facto approval to the order of dismissal dated 22.4.2013. This act of according post facto approval given, vide the impugned letter No. 31/Farid/3604 dated 22.05.2014, in view of the above quoted provisions of Regulation No. 12, is liable to be declared to have been issued without lawful authority and is of no legal effect. Moreover, this act of the Board amounts to violation of the petitioner's fundamental right to be treated in accor- dance with law (i.e. Regulation No. 12) as guaranteed by Article 31 of the Constitution. The High Court Division also finds substance in the submission of the learned advocate for the petitioner that there are two separate conditions, to be fulfilled, to approve any proposal for dismissal or removal, namely (1) the Appeal and Arbitration Committee shall examine the proposal and shall submit their findings for approval of the Board and (2) the Board shall approve the proposal for dismissal only if it considers that the report or findings of the Appeal and Arbitration Committee justifies the penalty of dismissal or removal, as the case may be. Md. Mizanur Rahman -Vs. The Chairman, Appeal and Arbitration Committee and others (Spl. Original) 19 ALR (HCD) 400-403

Constitution of the Bangladesh

Article 102(2)(a)(i) -Administrative discretion connotes somewhat different overtones. Discretion in this sense means choosing from amongst the various available alternatives but with the reference with the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful but legal and regular.

The High Court Division held that the petitioner run pillar to post for getting an administrative order but the officials fail to discharged their duties rather they acted inconsistent and fanciful manner which betrayed the fair administration of justice. The respondents failed to rely upon the report of the UNO Annexure-D which is objective in nature but they relied upon an opinion of an advocate unrelated with the matter which is merely tentative, vague and presumptive in nature. In the above context the rule merits consideration and accordingly the rule is made absolute. Md. Lufur Rahman @ Abul Hossain -Vs. The Government of Bangladesh and others (Spl.Original) 21 ALR (HCD) 13-17

Constitution of Bangladesh.

Article 102(2)(a)(ii) read with

Customs Act, 1969

Sections 139, 194(1) and 196A- Whether a PSI Agent is required to deposit the penalty imposed by the Deputy Commissioner of Customs for preferring an appeal to the Commissioner of Customs, Excise and VAT (Appeal) [shortly Customs (Appeal)] against the adjudication order imposing the penalty.

The High Court Division hold that the petitioner as a Pre-shipment Agent is not required to make any form of deposit under section 194(1) of the Customs Act, 1969 for preferring an appeal either under section 193 or section 196A against the penalty imposed by the Commissioner of Customs or any other officer of customs below the rank of commissioner having jurisdiction to pass an adjudication order. In such view of the matter, the High Court Division is of the opinion that the Commissioner (Appeal) acted illegally in disposing the appeals. Accordingly, the rule issued in writ petition nos. 9739-9743 of 2008, writ petition Nos. 9745-9748 of 2008 and writ petition nos. 7416-7432 of 2009 are made absolute without any order as to cost. BUREAU VERITAS (BIVAC) Bangladesh Limited. Vs. Commissioner of Customs, Customs, Excise and VAT (Appeal) Commissionerate and others (Spl. Original) 18 ALR (HCD) 208-213

Constitution of Bangladesh

Articles 102(2)(a)(ii) and (b)(ii) -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.

The High Court Division held that when the MPs took oath on 03.01.2019, on the same day the President realized that Sheikh Hasina, the newly elected MP in the said election, was commanding the majority support of the elected MPs and for such satisfaction of the president, under the Constitution, is not required to wait until the first meeting of parliament. This provision in the Constitution has been incorporated for the sake of continuity of the government in the best interest of democracy. After such appoint Prime Minister on 03.01.2019, the Prime Minister determined as to who would be the Ministers, State Ministers and Deputy Ministers in her cabinet and, accordingly, such MPs and some non MPs were also appointed as Ministers, State Ministers and Deputy Ministers by the President. As discussed above, 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 the High Court Division 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 reformed and appointed by the President and 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. Admittedly, the MPs elected in the 11th parliamentary election did not sit in the first meeting of the parliament before expiration of the tenure of the last parliament. Admittedly, they sat in the first meeting of the parliament on 30.01.2019 i.e. two days after the expiration of the tenure of the 10th parliament. Therefore, though by way of legal fiction they have in the meantime assumed office of members of parliament, in reality they did not assume such office until and unless the first meeting of the parliament to took place. This being the position, the High Court Division does not find any substance in the submissions of the learned advocates for the petitioner that on the day the MPs in the 11th parliament took oath, they assumed the office of MP and as such on that day there were more than 600 MPs in the parliament. This contention is totally misconceived and bereft of real intent of the concerned Articles of the Constitution. Therefore, for such misconceived concept or idea, the High Court Division is not inclined to issue any Rule in this writ petition. At the same time, since the idea is a misconceived one and bereft of any logic, the High Court Division is also not inclined to issue any certificate under Article 103 of the constitution as prayed for by the learned advocates for the petitioner. Accordingly, this application under Article 102(2)(a)(ii) and (b)(ii) of the Constitution of the People's Republic of Bangladesh is rejected summarily. Mr. Md. Taherul Islam (Tawhid). -Vs. The Speaker, Bangladesh Jatiya Sangsad, West Block, Room No. 521, Level-5, Bangladesh Parliament Secretariat, Sher-E-Bangla Nagar, Dha-ka and others. (Spl. Original) 16 ALR (HCD) 128-135

বাংলাদেশের সংবিধান

অনুচ্ছেদ ১০২ (২) (ক) (আ) - হাইকোর্ট বিভাগ বলেন যে, সাধারণ মানুষের সবচেয়ে নিকটতম, সবচেয়ে আপন, বন্ধু, আত্মীয়ের মত প্রজাতন্ত্রের কর্মে নিয়োজিত কর্মচারীগণ হলো মহল্লাদার এবং দফাদারগণ। বিপদে আপদে, ঝড়-বৃষ্টি উপেক্ষা করে বাংলার সাধারণ মানুষের হাতের নাগালের মধ্যে সবচেয়ে কাছের সরকারী কর্মচারীটি হল মহল্লাদার এবং দফাদারগণ। দূর্নীতি ও ক্ষমতার অপব্যবহার কাকে বলে এরা জানে না। সবচেয়ে কম সুবিধাপ্রাপ্ত হয়েও জনগণকে বেশী সেবা প্রদানকারী সরকারী কর্মচারী। সহজ, সরল ও নিরহংকারী প্রজাতন্ত্রের কর্মচারীর প্রতীক এই দফাদার ও মহল্লাদারগণ। স্থানীয় সরকার বিভাগ যেখানে মহল্লাদার ও দফাদারগণের সহিত আলাপ আলোচনা করে তাদের জাতীয় বেতন স্কেলে অন্তর্ভুক্তকরণ বিষয়টি সংশ্লিষ্টতায় সিদ্ধান্ত গ্রহণ করে মহল্লাদার দফাদারগণের সাথে অংগীকারাবদ্ধ হয়েছে ২০০৮ সালে এবং উক্ত অংগীকারের পরিপ্রেক্ষিতে বিধিমালা ২০১১ করে যেটির চূড়ান্ত আইনীরূপ প্রদান করা হলো। অথচ তা কেনো বাস্তবায়ন হলো না সে ব্যাপারে প্রতিপক্ষগণ নিরব। দীর্ঘদিনের আলাপ আলোচনার প্রেক্ষিতে যে বিধিমালা ২০১১ প্রণয়ন করা হল তা কার্যকরী না করে বিধিমালা ২০১৫ প্রনয়ণ বেআইনী ও এখতিয়ার বহির্ভূত। রাষ্ট্র নিজের আইন নিজে মেনে চলবে। রাষ্ট্র কখনও নিজের প্রণীত আইন ও বিধি ভংগ করবে না। আইন সকলের জন্য সমান। রাষ্ট্র ও নাগরিকের কোন পার্থক্য নাই। আইন মোতাবেক চলা যেমনি নাগরিকের জন্য কর্তব্য তেমনি রাষ্ট্রের জন্যও তা সমভাবে প্রযোজ্য। আইন মানা না মানার ক্ষেত্রে রাষ্ট্র নাগরিকের থেকে কোন অতিরিক্ত সুবিধা ভোগ করে না। এটাই আইনের শাসন। বর্তমান মোকদ্দমায় রাষ্ট্র নিজের প্রণীত বিধিমালা ২০১১ ভংগ করে দরখাস্তকারীগণকে সহ বাংলাদেশের সকল মহল্লাদার ও দফাদারগণকে তার আইনত প্রাপ্যতা থেকে দীর্ঘদিন ধরে বঞ্চিত করে আসছে। লাল মিয়া ও অন্যান্য-বনাম-বাংলাদেশ সরকার ও অন্যানা (Spl. Original) 19 ALR (HCD) 89-98

Article 102(2)-The residences are not meant for an individual person, but for the Speaker and the Deputy Speaker who uphold a unique position under the Constitution and in the said way the impugned project is being implemented for the public interest being the same is a state necessity. Bangladesh vs Bangladesh Paribesh Andolon (BAPA) (Civil) 75 DLR (AD) 46

Article 102(2)- The construction of residences of the Speaker and the Deputy Speaker being for the public purpose in the government land is exempted from complying with provisions of other municipal laws. The Town Improvement Act, 1953 and the Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on Government's own land after obtaining clearances from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government as per approved plan Bangladesh vs Bangladesh Paribesh Andolon (BAPA) (Civil) 75 DLR (AD) 46

Article 102(2)-During the subsistence of stay order 100% of the construction work of the residential building for the Speaker and the Deputy Speaker has been completed. But the High Court Division without taking notice of the completion of the construction work made the Rule absolute for which the interference by this Division is warranted. Bangladesh vs Bangladesh Paribesh Andolon (BAPA) (Civil) 75 DLR (AD) 46

Article 102(2)- The police personnels should keep in mind that the police force being specially trained as disciplined force and enjoys extra benefits and protection are maintained by the Government with tax money of the public for the purpose to serve the public, as such, the police personnels should be more cautious to maintain dignity of their profession as well as protect human rights of the citizens alongwith other rights enshrined in the Constitution. Abdul Gaffar vs Md. Mohammad Ali (Civil) 75 DLR (AD) 71

Article 102(2)-A Judicial Officer has every right to pass any order within the ambit of law and if, anyone is aggrieved by the same he has legal remedy before the higher Court in appropriate forum. But, the manner the writ-petitioner brought unfounded allegation against the concerned Magistrate, is highly objectionable. During investigation of a case there is no scope to come to a definite conclusion that an accused is to be harassed and humiliated on mere apprehension and surmises. Government of Bangladesh vs Syed Fazle Elahi Obhi (Civil) 75 DLR (AD) 93

Article 102(2)-The person who wants to invoke Article 102 must be an aggrieved person and must specify the relief in his prayers. Chapter XIA of the Supreme Court (High Court Division) Rules, deals with preparing and filing of writ petition under Article 102 of the Constitution. It provides that the aggrieved person must specifically set out the relief sought for. So, the writ petitioner must have specific claim in the form of prayer against such persons who are respondents, following which the Court can grant relief, if favourable, in accordance with law. Government of Bangladesh vs Sk Md Abdullah Faruque (Civil) 75 DLR (AD) 139

Article 102(2)-The relief under Article 102 of the Constitution being an equitable relief the High Court Division has to cautious while passing the judgment and order so that the relief which it is giving to the parties by the judgment and order is not beyond the terms of the Rule Nisi. Government of Bangladesh vs Sk Md Abdullah Faruque (Civil) 75 DLR (AD) 139

Article 102(2)-The decision of competent court of civil jurisdiction shall be final in the case of declaration of title and confirmation of possession as well as classification of the land and the High Court Division under writ jurisdiction cannot sit as an appellate forum against the judgment and decree passed by the High Court Division in civil jurisdiction and if does so that will amount to abuse of the process of law which will create multiplicity of proceedings as well as chance to arrive at a conflicting decision. Bangladesh vs Md Abdul Malek (Civil) 75 DLR (AD) 255

Article 102(2)- The procedure i.e. frame of charges, specifying therein the penalty proposed to be imposed, communicating it to the accused, requiring him to show cause within a specified time, giving an opportunity of being heard in person were not followed. Writ is very much maintainable and as procedure established by were not followed the impugned discharge order is vitiated and worth of declaring without lawful authority. Bangladesh vs Md Golam Mastaja (Civil) 75 DLR (AD) 260

Article 102(2)(1)-Article 102(2)(1) provides that the High Court Division on the application of any person aggrieved, may give such directions or orders to any person including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental right conferred by part III of the Constitution. Government of Bangladesh vs Sk Md Abdullah Faruque (Civil) 75 DLR (AD) 139

Article 102-The High Court Division enlarged the accused on ad- interim bail for a period of 6(six) months. The learned Judge-in-Chamber without making any interim order of stay directed the office to place the matter in court for hearing. In the meantime the period of interim bail expired by efflux of time. Petition become infructuous. State vs Arman, 67 DLR (AD) 181

Articles 102(2)-There is no scope for quashing a criminal proceeding under the writ-jurisdiction unless the vires of the law involved is challenged. The vires of the law involved in the case has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing criminal cases in exercise of its power under Article 102 of the Constitu- tion. ACC vs Mehedi Hasan, 67 DLR (AD) 137

Article 102(2)-If malafide is found on the face of the record in a Mobile Court proceeding and the conviction is 'non-est' in the eye of law, then this Court has every jurisdiction to interfere with the matter excersing power under Article 102 of the Constitution. State vs Executive Magistrate Md Rafiqul Islam, 69 DLR 18

Article 102(2)-Maintainability of writ petition-The case of Sheikh Hasina was decided upon an application under section 561A of the Code of Criminal Procedure, whereas the petitioner seeks to quash the criminal proceeding by making an application under Article 102 of the Constitution, which we have already held, is not maintainable. Begum Khaleda Zia vs Anti-Corruption Commission, 68 DLR 1

Article 102(2)-It appears from a plain reading of the Rule that the petitioner has prayed for quashing the criminal pro- ceeding. While adjudicating the matter in exercise of writ jurisdiction, we have to strictly follow the terms of the Rule issuing order. Begum Khaleda Zia vs ACC, 68 DLR 1

Article 102(2)-The vires of the law has not been challenged in the writ petition. There is no assertion in the writ petition that the statutory relief under section 561A of the Code was ever sought to agitate the grievances. Surprisingly, there is no state- ment in the writ petition to the effect that the petitioner is constrained to file the writ petition because of either the absence of or inadequacy of equally efficacious alter- native statutory remedy. Begum Khaleda Zia vs Anti-Corruption Commission, 68 DLR 1

Article 102-A litigant has no inherent right in procedural remedy. Since the Appellate Division of the Supreme Court has observed in 35 DLR (AD) 127 that there is no scope for second revision the matter ends there. That does not mean, that of necessity a writ-jurisdiction may be invoked. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Article 102-In certiorari the Court can declare that the conviction of the accused was recorded without lawful authority if the accused's trial is vitiated by irregularities in pro- cedure causing him prejudice, the proceedings can be quashed. State vs Zahir 45 DLR (AD) 163.

Article 102-A writ petition does not lie against the decision of the Sessions Judge under section 439A CrPC. A litigant has no inherent right in procedural remedy. Appeal or revision must be given expressly by law. A writ jurisdiction cannot of necessity be invoked. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Article 102-Forfeiture of book-Defect in the order is no ground for exercise of writ jurisdiction For enforcement of fundamental right and for cancellation of order, the Court should look to the equity and good conscience in passing the impugned order (forfeiting the book in question). When the book contains materials justifying the government's action, the impugned order cannot be struck down on the ground that it does not mention the facts in support of the action. Bangladesh Anjuman-e-Ahmadiyya vs Bangla- desh 45 DLR 185.

Article 102-The right to hear is a personal right the writ petitioner being not the author or publisher of the forfeited book is not entitled to prior notice asking him to show cause against the impugned order. Bangladesh Anjuman-e-Ahma- diyya vs Bangladesh 45 DLR 185.

Article 102-The Court is to hold the balance between the State's need to prevent pre- judicial activities and citizen's right to enjoy his personal liberty. Habiba Mahmud vs Bangladesh 45 DLR (AD) 89.

Article 102-Safe custody is a judicial custody for definite purpose of ensuring the welfare of a victim girl devised by our courts. Rokeya Kabir vs Government of Bangladesh through the Ministry of Home Affairs 52 DLR 234.

Article 102-Custody The detenu, we are inclined to direct that the detenu will stay with the father five days a week and two days a week, with his mother. The weekly two days will be from Thursday at 6-00 PM till 6-00 PM of Saturday, Respondent No. 3 will ensure handing over the detenu at the parent's house of the petitioner and will collect the detenu from there according to the time. The petitioner shall stay with her son on those two days in her parent's house. However, the parties will be at liberty to change the time and day by mutual agreements. Rayana Rahman vs Bangladesh 63 DLR 305.

Article 102-195 Prisoners of War, the alleged perpetrators of the crime against huma- nity; were not under the custody of Bangla-desh at the time of the agreement, rather they were under the custody of India and they were handed over to Pakistan to protect the better interest of the country under a peace agreement and now after lapse of 36 years that cannot be declared illegal by invoking writ jurisdiction, which is absolutely unrealistic and absurd, rather it is clearly a product of ulterior motive. (Per Mohammad Anwarul Haque J). Wing Commander M Hamidullah Khan Bir Protik vs Bangladesh 63 DLR 488.

Article 102-Let a Rule Nisi be issued calling upon the respondents to show cause as to why the New Delhi agreement signed by the then Foreign Minister of Bangladesh on 9th April, 1974 and thereby releasing 195 Prisoners of War (PoWs) identified as perpetrators of crimes against humanity should not be declared to have been made without lawful authority and is of no legal effect and as to why these 195 PoWs released under New Delhi Agreement should not be brought to justice and prosecuted and punished by International Crimes Tribunal and why the respondent should not be directed to produce a list of 3 millions martyrs who made the highest sacrifice in the War of Liberation in 1971. (Per Syed Abu Kowser Md Dabirush-Shan J). Wing Commander M Hamidullah Khan Bir Protik vs Bangladesh 63 DLR 488.

Article 102-They are an utter distortion of historical facts and bring into question the ethos of the Liberation War and is a slur on Bangali nationalism. In the absence of the petitioner or his representative I refrain from passing any order in this regard. This being a Court of Record, the petitions are available to the learned Attorney- General to take any appropriate action against the petitioner, if he is so advised. (Per Md Imman Ali J, agreeing with Md Anwarul Haque). Wing Commander M Hamidullah Khan Bir Protik vs Bangladesh 63 DLR 488.

Article 102(2)(a) (i)-The Sessions Judge having reversed the finding of possession made în favour of the appellant by the Magistrate, the appellant cannot file writ petition in the nature of mandamus under Article 102(a)(i) of the Constitu- tion. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Article 102(2)(b)(i)-While detaining a person the Government must serve specific grounds for detention so as to enable him to know what are his faults and illegalities. Detention on grounds vague and indefinite without giving sufficient materials to enable the detenu to make effective representation is illegal. Md Sekandar Ali vs Bangladesh 42 DLR 346.

Article 102(2)(i)-The High Court Division clearly proceeded on a misapprehension of the nature of an application under Article 102(2)(i) of the Constitution. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(i) The Dhaka High Court and after 1972 the High Court of this country have consistently held that where the petitioner has challenged his detention as illegal and the detention is continued by successive orders and the detaining authority fails to show that any of the successive orders of detention is illegal, the rule does not become infructuous. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(i)-The fact of detention and not the date of order of the detention is the material point. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(b)(1) High Court Division. which took the view "This rule therefore has become infructuous after revocation of the impugned (original) order and the detenu is in detention not under the said order but under the subsequent order which is not the subject-matter of the present rule" missed the tenor of Article 102(2)(b)(1) which confers jurisdiction on it to "satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(b)(i)-Writ of Habeas Corpus Nature of enquiry-Ho Division's view erroneous Considering the nature of enquiry as it is, there is no hesitation in saying that the High Court Division has erroneously taken the view that the Rule (issued by it) has become infructuous as because fresh order had been passed which was not, speaking technically, a subject matter of the Rule To say the least, the view that was taken in the case of Abdul Latif Mirza 31 DLR (AD) 1 was overlooked. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(b)(i)-In 31 DLR (AD) 1, it was held that the order of detention for its validity is to be tested on the basis whether the detaining authority had before it material which gave a rational probative value of the order and are not extraneous to the purpose of the Act and beyond which the order of detention is immune from challenge except on the ground of malafide. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(b)(i)-Malafide vitiates everything and the point is so settled that it needs no reiteration by referring to the decided case [Ref: 34 DLR (AD) 222] Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 102(2)(b)(i) Order of detention was passed for collateral purposes. Hence the detention is illegal. Sajeda Parvin vs Bangladesh 40 DLR (AD) 178.

Article 103-Where serious defect in the finding of fact given by the High Court Division is discovered and the same are considered not tenable then it should be open to the Appellate Division to come to its own', independent finding upon a re-examination of the evidence untrammeled by the opinion of the Court appealed from. State vs Abdus Sattar 43 DLR (AD) 44.

Article 103-State filed a leave petition against the order of acquittal by the High Court Division which was dismissed after hearing- Subsequently the informant filed another leave petition. There is no scope for hearing the second petition at the instance of the informant. Mosto- shir Ali vs Arman Ali 42 DLR (AD) 12.

Article 103-To suggest that a leave petition may be filed under Article 103 challenging the Sessions Judge's decision is itself tantamount to legistation against which the learned judges have patronisingly cautioned. Sher Ali vs State 46 DLR (AD) 67.

Article 103-The accused was acquitted and state petitioner did not take any step for hearing of the petition in the last 5 years. In view of the above, the impugned judgment is not to be interfered with. State vs Shahjahan 53 DLR (AD) 58.

Article 103-Though the leave petition was filed in time, the State did not take any step during the period of about seven years to get it heard. On this very account the leave petition must be rejected. State vs Abu Musa @ Musaya @ Shapin Bap 53 DLR (AD) 81.

Article 103-This Division does not inter- fere on the ground that upon evidence on record a different conclusion might be arrived at from those upon which the High Court Division acquitted the accused persons. State vs Abu Musa @Musaya @ Shapir Bap 53 DLR (AD) 81.

Articles 103 & 104-To meet the ends of justice the conviction under section 4 of the Anti Terrorism Act is maintained but the sentence of rigorous imprisonment for life is modified to 10 years rigorous imprisonment with fine as ordered. Jahangir Alam alias Zakir vs State 56 DLR (AD) 217.

Article 103(2)(b)-A sentence of death cannot be confirmed under section 376 of the Code unless it is reconfirmed by this court under article 103(2) of the Constitution. Previously the High Court Division had power to confirm the sen- tence, but after the amendment of article 103 the word 'confirm' used in sections 374 and 376 protanto repealed by article 103(2)(b) of the Constitution. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Article 103-Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. Jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. State vs Abdus Salam, 67 DLR (AD) 376

Article 103-It would be unnecessary delay in holding the trial of the cases, if leave is granted. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278

Article 103-The applicant has no necessity of praying for granting leave. In respect of leave petition, the court may refuse leave and dismiss the petition summarily either ex-parte or after issuing notice upon the respondent. Normally notice is served by the petitioner through his Advocate-on-record before filing the petition. While hearing the petition for leave to appeal, the court is called upon to see whether the petitioner has a case so that he should be granted leave from the judgment of the High Court Division. In that case, also the court is not exercising the appellate jurisdiction. It is exercising the discretionary jurisdiction to grant or not to grant leave to appeal. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti-Corruption Commission, 70 DLR (AD) 109

Article 103- If the court grants leave, he will enter into the appellate forum and if the court does not grant leave he does not tenter into the appellate forum. He still remains in the discretionary jurisdiction of the court. Therefore, granting of leave is not sine qua non in a leave petition. Iqbal Hasan Mahmood alias Iqbal Hasan Mah- mood Tuku vs Anti-Corruption Commis- sion, 70 DLR (AD) 109

Article 103-The Cabinet Secretary has locus standi to file the appeals against the judgment and order of the Administrative Appellate Tribunal since it involves the issue of termination of service of the employee of Election Commission Secretariat. Bangladesh vs Md Abdul Alim (Civil) 75 DLR (AD) 147

Articles 103 and 111-In absence of any solid-concrete evidence as to that the High Court Division passed the impugned order with conscious defiance of the higher courts our considered view is that the order was passed in ignorance of the order of stay and it may be said that there was no willful disobedience of the order. It is highly expected that courts below including the High Court Division should maintain cautiousness in the matters, State vs Omit Hasan (Criminal) 75 DLR (AD) 113

Constitution of Bangladesh

Article 103 read with

Evidence Act [I of 1872]

Section 72 read with 

Fraud vitiates everything.

The register of the record room of the Court is a public document.

If fraud is practiced upon Court for obtaining any order, then the order of the Court is liable to be set aside.

When the trial court itself on consideration of the materials on record was satisfied that a fraud had been committed in obtaining the ex parte decree it was the duty of the trial court to set aside the ex parte decree."

Fraud vitiates everything; even a judgment and decree affirmed by the apex Court of the country can be declared illegal and void by the trial Court if it is proved that the judgment and decree was obtained by practicing fraud upon Court.

Mere allegation of fraud is not enough to entertain a suit for declaring a judgment and decree affirmed by the apex Court of country illegal. Unless strong prima facie case of fraud is made out and sufficient acceptable evidence and materials are produced before Court to substantiate the allegation of fraud a suit for declaring a judgment and decree affirmed by the apex Court of the country should not be entertained.

The Appellate Division observed that in this present case, it has been proved that the respondents obtained judgment and decree practicing fraud upon the High Court Division. The High Court Division made a serious error of law making the Rule absolute based on fictitious judgment and decree passed in Title Suit No. 587 of 1970 dated 15.03.1971, which has no existence at all. So, the Appellate Division is constraint to interfere with the judgment and order passed by the High Court Division in Writ Petition No. 6053 of 2008 on 17.12.2009. Accordingly, the judgment and order passed in Writ Petition No. 6053 of 2008 on 17.12.2009 is set aside. Thus, the appeal is allowed. Bangladesh and others. -Vs. Sadeque Ahmed Nipu and another (Civil) 22 ALR (AD) 132

Constitution of Bangladesh

Article 103(2) read with

Code of Civil Procedure [V of 1908]

Section 98-Though the learned Judges of the High Court Division did not state in their judgments, which question of law as to the interpretation of the Constitution is involved in the case, the Appellate Division held that for such defect, the appeal before the Appellate Division was not incompetent on the score of defective certificate.

Though the learned Judges did not specify the law point on which they differed, in such a situation, it was the duty of the learned Third Judge to whom the matter was referred to ascertain the difference of opinion.

From the principle expounded in the case referred to 26 DLR (SC) 44, the Appellate Division finds that though the learned Judges of the High Court Division did not state in their judgments, which question of law as to the interpretation of the Constitution is involved in the case, the Appellate Division held that for such defect, the appeal before the Appellate Di- vision was not incompetent on the score of defective certificate. The principle expounded in the case of Kazi Moklesur Rahman (ibid) may be applied in the case in hand by analogy. In the case in hand, the Appellate Division is also of the view that though the learned Judges did not specify the law point on which they differed, in such a situation, it was the duty of the learned Third Judge to whom the matter was referred to ascertain the difference of opinion. Having gone through the judgment of the Third Judge, the Appellate Division finds that the learned Judge could detect the difference of opinion of the learned Judges of the Division Bench about the law point and resolved the issue accordingly. Therefore, for not merely stating the law point by the learned Judges, who differed with each other, the judgment delivered by the Third Judge cannot be said to have been passed without jurisdiction. Therefore, the Appellate Division finds that the grounds, on which, leave was granted are answered and accordingly, the Appellate Division does not find any substance in this appeal. Accordingly, this appeal is dismissed. Md. Shajahan Mia and others Vs. Ministry of Forest and others (Civil) 19 ALR (AD) 72-75

Article 103

Appellant's seniority is to be determined on the basis of the circular No.1 of 1960. The Tribunal also held that since a continuing Circular has been challenged on the ground of lack of juruisdiction the question of limitation does not arise in this case. The appellant's case was allowed. On appeal by the respondent- Bangladesh Bank the Administrative Appellate Tribunal held that the Administrative Tribunals Act, 1980 was made applicable to Bangladesh Bank by an amending Ordinance in 1984 to be effective from 25-9-84. As per section 4(2) of the Administrative Tribunals Act, 1980 the appellant ought to have filed an appeal against the Staff Order No. 176/79 dated 3-7-79 within 6 months from 25-9-84. He having kept quiet for more than six months from 25- 9-84 filed a representation or appeal for the first time on 27-5-86 and as such his representation or appeal was barred by limitation and it was not a representation/appeal in the eye of law. His case before the Administrative Tribunal was, therefore, not maintainable. Md. Nurul Huq-IV vs. Governor, Bangladesh Bank, Head Office, Dhaka and others (Mustafa Kamal J) (Civil) 4ADC 321

The Constitution of Bangladesh 

Article 103 (3)

On appeal from the said judgments the High Court Division held that Title Suit No.88 of 1999 abated as a whole and that the defendants should be afforded an opportunity to prove the power of at- torney in respect of the suit property and with these findings, the High Court Di- vision remanded both the suits to the trial Court for fresh decision. Md. Nurul Islam Khan vs. Azizul Islam (S.K. Sinha J)(Civil) 9 ADC 635

Article 103- Granting of leave Under article 103 of the constitution a litigant has acquired right; (a) if the High Court Division certifies that the case involves a substantial question of law as to the interpretation of constitution, (b) the High Court Division has confirmed a sentence of death or sentenced a person to death or imprisonment for life, and (c) the High Court Division has imposed punishment on a person for contempt. In respect of a leave petition, the application has no right at all. If this court grants leave then the applicant has entered into the appellate forum. If the case covers Clauses (a) to (c) above, there will be no necessity to obtain leave from this court. The applicant has no necessity of praying for granting leave. In respect of leave petition. the court may refuse leave and dismiss the petition summarily either ex-parte or after issuing notice upon the respondent. Normally notice is served by the petitioner through his Advocate-on-record before filing the petition. While hearing the petition for leave to appeal, the court is called upon to see whether the petitioner has a case so that he should be granted leave from the judgment of the High Court Division. If the court grants leave, he will enter into the appellate forum and if the court does not grant leave he does not enter into the appellate forum. He still remains in the discretionary jurisdiction of the court. Therefore, granting of leave is not sine qua non in a leave petition....... Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, [5 LM (AD) 226]

The Constitution Praying for leave to prefer appeals, 

Article 103

The allegations that the preemptor is a name lender and her sons actually filed the cases using her name beyond her knowledge have not been proved and found to be false in view of the deposi- tion given by the pre-emptor herself. Moulvi Abdul Wadud Chowdhury vs. Abdul Motaleb Chowdhury (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC 850

Article 103

For declaration and injunction to the ef- fect that the order dated 31.03.1986 passed by the defendant No. 4, U. R. O. Chittalmari Upazilla, in Miscellaneous Review Case No. 100/84-85 in respect of settlement of the Ka' schedule land is illegal, void and without jurisdiction and is not binding on the plaintiff and to restrain the defendant No.1-3 from en- tering into the said ' Ka' schedule land of the plaint forcibly and not to dispos- sess the plaintiff therefrom, by granting permanent injunction; and also prayed for a temporary injunction to that effect pending disposal of the suit contending. Gour Chandra Majhi vs. Shusen Kumar Mondal (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC  676

Article 103

Arising out of the judgment and order dated 30.09.1995 passed in Miscella- neous Appeal No. 82of 1995 by the Ad- ditional District Judge, 4th court, Dhaka, which was filed against the judgment and order dated 29.03.1995 passed in House Rent Case No. 34 of 1982 by the Assistant Judge (House Rent Controller) Bashudev Ghosh vs. Iswar Sree Sree Bashudev Shalgram (Shah Abu Nayeem Mominur Rahman J) (Civil) 6 ADC 680

Article 103- Since we are of the view that writ petitions were not maintainable the second submission of the petitioner does not deserve any consideration Begum Khaleda Zia -VS- Anti- Corruption Commission, [4 LM (AD) 89]

Article 103 and 104- উপ-সচিবগণের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে যুগ্ম- সচিব পদে নিয়োগ পাইবেন। একই ভাবে যুগ্ম-সচিবগণের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে অতিরিক্ত সচিব পদে নিয়োগ পাইবেন- প্রকৃতপক্ষে মাঠ পর্যায় প্রশাসন এবং নির্বাহী বিভাগের সর্বোচ্চ পর্যায়ের সহিত উপ-সচিব, যুগ্ম-সচিব, অতিরিক্ত সচিব ও সচিবগণ সেতুবন্ধের মত কার্য করেন। এই কারণেই বৃটিশ আমল হইতেই সচিবালয়ের উপ-সচিব ও তৎঊর্ধ্ব পদে সব সময়েই প্রশাসনিক কর্মকর্তাগণ নিয়োগ ও পদোন্নতি পাইতেন।

একমাত্র ব্যতিক্রম SSP Order এর মাধ্যমে সকল ক্যাডার হইতে উপ-সচিব ও তৎঊর্ধ্ব পদে নিয়োগ/পদোন্নতি প্রদান করা হইয়াছিল যাহা ১৯৮৯ সনেই পরিত্যাক্ত হইয়াছে। যেহেতু PSC এর সুপারিশ পর্যায় হইতেই কর্মকর্তাগণ

বিভিন্ন ক্যাডারে শ্রেণীভুক্ত হইয়া যায় সেই হেতু সচিবালয়ের প্রশাসনিক উপ-সচিব পদে প্রশাসনিক কর্মকর্তাগণ ব্যাতিরেকে অন্য ক্যাডারের কর্মকর্তাগণের পুনরায় নিয়োগ বা পদোন্নতি প্রাপ্ত হইবার কোন সহজাত অধিকার নাই।

এইরূপ আইনগত অবস্থায় ১৯৯৮ সনের উপ-সচিব পদে নিয়োগ/পদোন্নতির নীতিমালার 'ঙ' দফা বা ২০০২ সনের বিধিমালার ৫ বিধি এবং তৎসংশ্লিষ্ট প্রথম তফসিলে বর্ণিত পদ্ধতি যে ৭৫% পদ সিভিল সার্ভিস (প্রশাসন) এবং অবশিষ্ট ২৫% পদ অন্যান্য সকল ক্যাডারের সিনিয়র স্কেল পদে কর্মরত কর্মকর্তাদের মধ্য হইতে পদোন্নতির মাধ্যমে উপ-সচিব পদে নিয়োগ প্রদানের বিধি প্রণয়নকে অযৌক্তিক (unreasonable) বা যথাযুক্ত ভিত্তি-নিকষ বহির্ভূত (irrational basis) হইয়াছে তাহা বলা যায় না, বরঃ উক্ত বিধান যৌক্তিক, বাস্তব সম্মত এবং সংবিধান সম্মত হইয়াছে বলিয়াই প্রতিয়মান হয়।

প্রথম তফসিলের ২য় ক্রমিকে বর্ণিত যুগ্ম-সচিব এবং ৩য় ক্রমিকে বর্ণিত অতিরিক্ত সচিব পদের কোটা পদ্ধতির কোন যথোপযুক্ত ভিত্তি-নিকষ (rational basis) পাওয়া যায় না। ইহা একটি অযৌক্তিক (unreasonable) শ্রেণীভুক্তকরণ (classification) বিধায় অবৈধ হইবে।

যখনই কোন কর্মকর্তা ২০০২ সনের বিধিমালা অনুসারে উপ-সচিব পদে পদোন্নতি প্রাপ্ত হইলেন, তাহা যে কোন ক্যাডারে হইতেই হউক না কেন, তিনি তখন একজন পরিপূর্ণ উপ-সচিব। তাহার পূর্বের ক্যাডার পরিচয় তখন বিলুপ্ত হইবে। তিনি সচিবালয়ের উচ্চতর উপ-সচিব পদে তখন তিনি অধিষ্ঠান। সেই অধিষ্টা (status) লইয়াই অন্য সকল উপ-সচিবের সহিত এক শ্রেণীভুক্ত হইয়া সমস্ত অধিকার লইয়া তিনি পরবর্তী উচ্চতর যুগ্ম-সচিব পদে বা পরবর্তীতে অতিরিক্ত সচিব পদে পদোন্নতি প্রাপ্ত হইবার জন্য বিবেচিত হইবেন।

এমত অবস্থায় যুগ্ম-সচিব ও অতিরিক্ত সচিব পদে পদোন্নতির জন্য কোটা আরোপ অবৈধ বিধায় উক্ত উভয় ক্ষেত্রে নিয়োগ পদ্ধতি বাতিল ঘোষনা করা হইল। উপ- সচিবগণের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে যুগ্ম-সচিব পদে নিয়োগ পাইবেন। একই ভাবে যুগ্ম-সচিবগণের মধ্য হইতে কোনরূপ কোটা ব্যতিরেকে পদোন্নতির মাধ্যমে অতিরিক্ত সচিব পদে নিয়োগ 'পাইবেন।

অতএব, সংবিধানের ১০৩ ও ১০৪ অনুচ্ছেদ এর আওতায় নিম্নলিখিত নির্দেশনা প্রদান করা হইল:

ক) ১৯৯৮ সনের পূর্বতন নীতিমালা এর উপ-সচিব পদে পদোন্নতি/নিয়োগের নীতিমালার 'ঙ' দফা বৈধ ছিল; 

খ) সরকারের উপ-সচিব, যুগ্য-সচিব, অতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২ এর ৫ দফা বৈধ; গ) ২০০২ সালের বিধিমালার প্রথম তফসিলের ১ম ক্রমিকে বর্ণিত উপ-সচিব পদে নিয়োগ পদ্ধতি বৈধ:

ঘ) প্রথম তফসিলে ২য় ও ৩য় ক্রমিকে বর্ণিত যুগ্ম-সচিব ও অতিরিক্ত সচিব পদে নিয়োগ পদ্ধতিতে কোটা আরোপ অবৈধ বিধায় উক্ত দুই পদে পদোন্নতি জন্য কোটা পদ্ধতি বাতিল করা হইল। ... Government of Bangladesh -VS- Tauhid Uddin Ahmed, [9 LM (AD) 185]

Article 104- We are of the view that this would be an appropriate case where we should exercise our authority under article 104 of the Constitution for doing complete justice in the matter before us. The evidence and materials on record do not disclose the real reason behind the gift by the wife to her husband. The fact remains that the property was purchased jointly and was in their joint possession and enjoyment in spite of the gift. The third party has purchased the property for valuable consideration. There was no evidence that the defendant mutated the record of rights to his name after the acquisition of legal title to the property by virtue of the gift. The third party purchaser would not have been aware of the transfer of title. The defendant-appellant shall pay a sum of Tk.2,50,000/- to plaintiff- respondent No.1 within 3 months from the date of receipt of the judgment, failing which the appeal shall stand dismissed. ......Abul Hashem Sarker(Md.) VS Arjuman Akhter(Mst.), [5 LM (AD) 31]

Article 104- Legitimate expectation The decision of this Division in Civil Appeal Nos.60-65 of 1994 that equitable dispensation was meted out in exercise of article 104 of the Constitution on the consideration that the appellant- government would gain experienced hands and the writ-petitioners would gain fulfilment of a legitimate expectation. Ministry of Establishment =VS= Ma Abul Hashem, [5 LM (AD) 297]

Article 104- Review- Administrative Tribunal case was not maintainable- Judicial service is not a service in the sense of an employment as is commonly understood. Members of the judicial service, exercising judicial functions, are distinct from the members of other services. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their judicial functions and their over all reputations.

The Administrative Tribunal case was not maintainable as being hopelessly time barred the question as to whether the charges brought against the respondent have been proved or not does not deserve any consideration. But it is to be narrated clearly that cancerous cells of corruption constantly keep creeping into the vital veins of the judiciary and need to stem it out by judicial surgery for keeping the stream of justice delivery system unpolluted.

Facts and circumstances, we are of the view that the Administrative Tribunal cannot pass an ex hypothesi decision and, as such, interference over the matter is called for. Accordingly, the order dated 01.09.2016 passed by this Division is reviewed and set aside. The decisions of the Administrative Tribunal and the Administrative Appellate Tribunal are set aside. ... Ministry of Law, Justice and Parliamentary, Bangladesh VS SM. Abdur Rauf. [7 LM (AD) 240]

Article 104- For doing complete Justice The power of this Court under article 104 of the Constitution is an extensive one though it is not used often or randomly. It is generally used for doing complete justice in any cause or matter pending before it in rare occasions in exceptional or extraordinary cases for avoiding miscarriage of justice. To meet unwarranted and unpredicted exceptional situation this power is vested in this Division for doing complete justice. Article 104 widens our hands so that this Division is not powerless in exceptional matters. The matters (appeals/CPLA) in our hands are matters requiring exercise of this power, to save a valuable property of the Government from the clutches of greedy land/property grabbers, that too with the active collaboration and help from the Government Officials. Therefore, we have no other option than to exercise our power under article 104 of the Constitution. In the instant matters, it is absolutely necessary to do so.

Accordingly,-

(1) Civil Appeal No.30 of 2017 and Civil Appeal No.31 of 2017 are dismissed.

(2) The impugned judgment and decree dated 24-8-2015 of the High Court Division in Transfer Appeal No.08 of 2014 allowing the appeal, decreeing TS No.224 of 1997 and directing Waziuddin to handover vacant possession of the suit property in favour of Khadiza Islam, appellant of TA No.08 of 2014 within 60 days from the receipt of the judgment by setting aside the judgment and decree dated 18-8-2009 of the 1st Court of Sub-ordinate Judge, Dhaka in TS No.224 of 1997 is set- aside and TS No.224 of 1997 is dismissed.

(3) The judgment and decree passed by the High Court Division in First Appeal No.23 of 1984 allowing the appeal and decreeing TS No.541 of 1982 of the Court of Sub-ordinate Judge, Dhaka by setting aside the judgment and decree of dismissal of TS No.541 of 1982 is hereby declared to be fraudulent, unlawful, and thus, set aside.

(4) The execution proceeding arising out of the said decree is also declared illegal. The registered deed of transfer of the suit property being Deed No.4722 dated 30-11- 1992 in favour of Md Waziuddin through Court is hereby cancelled.

(5) Khadiza Islam would not be entitled to get Khas possession from Md Waziuddin and she would not be entitled to retain possession in the suit property, if there be any, by whatever means.

(6) Government Khas Mohal Authority shall takeover physical possession of the suit property presently measuring more or less 12 khatas of land with structures thereon of Holding No.10, Purana Paltan, Dhaka, Plot No.1184, Khatian No.217, present Mouza-Ramna, Old Dag Nos.26, 27 and 28 vide statement of witnesses and plaint of Title Suit No.224 of 1997 (Khadiza Islam vs Waziuddin), within 60 days from the date of receiving copy of this judgment from Md Wazi-uddin/ Khadiza Islam-Nirman Cons-truction/any person/ persons, in posses-sion of the suit property in its present condition and retain its possession in accordance with law.

(7) Civil Appeal No.32 of 2017 and Civil Petition for Leave to Appeal No.4232 of 2018 are disposed of in the light of the observations made in the body of the judgment and the above decision/ directions. Noor Mohammad Khan -VS- Raisa Aziz Begum, (8 LM (AD) 248)

Article 104, 111- Period of limitation in filing petitions/ applications/ suits/ appeals/ revisions/all other proceedings extended The existing laws do not give any Court or Tribunal the authority to extend the period of limitation provided under any special law. However, we are also aware of the singularly unprecedented, unwonted and totally unavoidable circumstances which has compelled people all over the world to be confined to their homes.

In exercise of our power and the authority vested in us by the Constitution under article 104, it is thus ordered that any period of limitation in filing petitions/ applications/ suits/ appeals/ revisions/all other proceedings, civil, criminal or administrative, under general or special laws, which expired on or after 26 March, 2020 stands extended till 31st August, 2020.

This order has been passed to do complete justice and is a binding order within the meaning of article 111 of the Constitution on all Courts/Tribunals. ... Fazlul Haque Sarder VS- Grameen Phone Limited, [9 LM (AD) 37]

Article 104- Partition of the suit land We are inclined to exercise our power under Article 104 of the Constitution. We are of the opinion that the ends of justice will best be served if we allot saham to the appellant but only to the extent of 39 decimals land. Hence, the Advocate Commissioner is directed to allocate saham to the appellant as follows:

4 decimals land in the southernmost portion of plot No.833, 8 decimals land in the southern part of the west bank of the pond within plot No.805, 13 decimals land from the southern bank of the pond within plot No.805 and 14 decimals land from the pond within plot No.739. The appeal is allowed in part with modification of saham given to the appellant.....Sadhan Chandra Baidya VS Parshuram Pilot High School, [10 LM (AD) 79]

Article 104- Period of limitation extension- Under article 104, it is thus ordered that any period of limitation in filing petitions/ applications/suits/ appeals/ revisions/all other proceedings, civil, criminal or administrative, under general or special laws, which expired on or after 26 March, 2020 stands extended till 31" August, 2020. This order has been passed to do complete justice and is a binding order within the meaning of article 111 of the Constitution on all Courts/Tribunals. ...Fazlul Haque Sarder (Md.) -VS- Grameen Phone Ltd., [10 LM (AD) 49]

Article 104- Complete Justice-   In exercise of our power and the authority vested in us by the Constitution under article 104, it is thus ordered that any period of limitation in filing petitions/applications/suits/appeals/revisio ns/all other proceedings, civil, criminal or administrative, under general or special laws, which expired on or after 05 April, 2021 stands extended till 31st August, 2021.

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

Article 104- Administration of the Deity and its property (Tarapur Tea Estate) We have decided to invoke our extra-ordinary power under article 104 of the Constitution. The administration of the Deity and its property are to be administered by a democratically elected Management Committee. The First Management Committee is to be formed following the guide lines mentioned herein below:

(1) 1(one) representative of highly respectable Hindu residents of Sylhet town to be nominated by the Deputy Commissioner, Sylhet.

(2) 1(one) elected Hindu Commissioner/ Councilor from the Syelhet Corporation, if any, to be nominated by the Mayor of Sylhet City Corporation. If such person is not available, the Mayor of Sylhet City Corporation shall nominate any Hindu resident of Sylhet town who is of high social standing and good reputation.

(3) 1(one) elected Hindu member of Zila Parishad, Sylhet District, if any, to be nominated by the Chairman of Zila Parishad, Sylhet. If no such person is available, the Chairman of Zila Parishad, Sylhet shall nominate any highly respectable Hindu resident of Sylhet.

(4) Principal, Sree Chaitanya Cultural Society (CCS). (5) 1(one) Hindu representative from the District Bar Association, Sylhet to be nominated by the Executive Committee of said District Bar Association.

(6) 1(one) Judicial Officer preferrably from Hindu Community, of District and Sessions Judge Court, Sylhet "Judgeship" including Magistracy to be nominated by the District Judge, Sylhet.

(7) Shebait of "Sree Sree Radha Krishno Jieu" shall be ex officio member of the Management Committee. The Deputy Commissioner, Sylhet in consultation with the 10(ten) leading Shebaits or priests of the different temples of Sylhet town shall appoint Shebait of the Deity.

(8) 1(one) representative from Hindu Teachers of Shahjalal University of Science and Technology, Sylhet to be nominated by the Vice Chancellor of the said University.

(9) 1(one) representative from the descendants of Baikuntha Chandra Gupta, if available, to be ascertained and nominated by the Deputy Commissioner, Sylhet.

(10) 1(one) Hindu Officer from District Police Administration, Sylhet to be nominated by the Superintendent of Police, Sylhet, if not available, any Hindu responsible officer from Sylhet District.

(11) 1(one) representative from Jugaltila Akhra Committee, Sylhet.

The members of the Management Committee shall hold the office for a period of 5(five) years. The Management Committee shall be reconstituted at the end of every 5(five) years.... Abdul Hye =VS= Ministry of Land, Bangladesh, [10 LM (AD) 342]

Article 104- Complete Justice- The High Court Division simply converted the conviction and modified the sentence from section 11(ka)/30 of the Ain 2000 to section 302/34 of the Penal Code. The statute has not entrusted the High Court Division to exercise such power of conversion of conviction. Because conversion of conviction from special law to a different law can only be done by the Appellate Division empowered under Article 104 of the Constitution to do "complete justice" in appropriate cases pending before it under Article 103 of the Constitution. The State =VS= Nurul Amin Baitha, [5 LM (AD) 311]

Article 104- In exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. The Court is not powerless to undo any injustice caused to a party- The Constitution is a social document, and Article 104 is not meant for mere adorning the Constitution. The Constituent Assembly felt that a provision like the one should be kept in the Constitution so that in exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Apart from the powers given to this Division by the Constitution, a Court of law always retains some inherent powers. It is, therefore, said, the Court is not powerless to undo any injustice caused to a party. Shutting of judicial eyes even after detection of palpable injustice is in one sense denial of justice. If the Judges do not rise to the occasion to which they are oath bound to do justice, they would commit the similar illegality as the one committed by a litigant. Court's practical approach would be towards doing justice without bothering too much about any one's perception. We should never compromise to do justice. (Surendra Kumar Sinha, J) (Minority view).......State =VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]

Constitution of Bangladesh

Articles 104 and 111-Any period of limitation in filing petitions/applications/ suits/appeals/ revisions/all other proceedings, civil, criminal or administrative, under general or special laws, which expired on or after 05 April, 2021 stands extended till 31st August, 2021.

It is further ordered by the Appellate Division that petitions filed before the Virtual Benches of the High Court Division must be filed before the appropriate regular Bench by 31st August, 2021, in default any interim order passed by the Virtual Benches shall stand vacated and all petitions filed before the Virtual Benches shall be deemed to have been dismissed. This order has been passed to do complete justice and is a binding order within the meaning of article 111 of the Constitution Courts/Tribunals. on all Governmental of Bangladesh -Vs. Ali Karam Reza (Civil) 23 ALR (AD) 09

Constitution of Bangladesh

Articles 104 and 111-Any period of limitation in filing petitions/applications/ suits/appeals/revisions/all proceedings, criminal civil, other or administrative, under general or special laws, which expired on or after 05 April, 2021 stands extended till 31st August, 2021.

It is further ordered by the Appellate Division that petitions filed before the Virtual Benches of the High Court Division must be filed before the appropriate regular Bench by 31st August, 2021, in default any interim order passed by the Virtual Benches shall stand vacated and all petitions filed before the Virtual Benches shall be deemed to have been dismissed. This order has been passed to do complete justice and is a binding order within the meaning of article 111 of the Constitution on Courts/Tribunals. Government all of Bangladesh Vs. Ali Karam Reza (Civil) 23 ALR (AD) 09

Constitution of Bangladesh

Article 104-Article 104 of the Constitution does confer not new jurisdiction but it gives power to the Court where it has jurisdiction in a matter before it. When this Court finds that no remedy is available to the present respondent though gross injustice has been committed to it, the Appellate Division would definitely invoke the jurisdiction under Article 104 to do complete justice in the matter. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. -Vs.- Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63

Constitution of Bangladesh

Article 104-In the case of Khandker Jillul Bari -Vs- The State 2009 BLT (AD) 28 the Appellate Division held that it's exclusive power under Article 104 of the Constitution applies as special and extraordinary jurisdiction to avoid miscarriage of justice by establishing complete justice and that this extraordinary power has been given to it and not to the High Court Division. The object of this Ar- ticle is to enable the Appellate Division to give such directions or pass such orders as necessary to do complete justice. This inherent power has been conferred upon this Division to do the right and to undo the wrong and to act exdebito justicia to do the real and substantial justice for which they exist. The conferment of power is under special circumstances and for special reasons. Article 104 gives a power to the Appellate Division where it has jurisdiction but it does not confer a new jurisdiction. In the case of Raziul Hasan -Vs- Bo-diuzzaman Khan and others 16 BLD (AD) (1996) 253 the Appellate Division held that when it is found that a gross injustice has been done to the appellant for no fault or laches of his own and a valuable right accrued to him is being lost and no other remedy is available to him for redress of his grievance, the Appellate Division found it to be a fit case to exercise its jurisdiction under Article 104 of the Constitution for doing complete justice. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. Vs. Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63

Constitution of Bangladesh

Article 104-The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it.

In the instant case, the Appellate Division has taken judicial notice of the fact that the then High Court of East Bengal was established in the Governor House or the New Government House comprising an area of 55.05 acres specified and demarcated by specially designed boundary wall with grille fencing and the said Court was subsequently renamed as the High Court of East Pakistan and, finally after the emergence of Bangladesh by operation of law, the Supreme Court of Bangladesh. The High Court Division rightly found that the exclusive possession of the chunk of land was first granted to the Governor House and then to the High Court of East Bengal and then by operation of law to the Supreme Court of Bangladesh by way of succession. It has been noticed that the Government vide Memo No. 3042 dated 17.09.1968 has already acknowledged that the whole area of the premises of the Supreme Court of Bangladesh comprising of 50 acres of land (approximately). This corroborates the case of the Writ Petitioners. On perusal of the materials on record it appears that the graveyards of the "Three National Leaders" and the Institution of Engineers Bangladesh with structures there-on was constructed on the land of the Supreme Court. Apart from that a portion of land of the Supreme Court premises to the southeastern side is being used, with the permission of the Chief Justice, as the National Eidgah Maidan for holding Eid Prayers twice in a year under the management of the City Corporation. It is also on the record that the then Chief Justice of Bangladesh permitted the Bangladesh Bar Council to construct their Office Building on a portion of land to the north-eastern side of the Supreme Court premises. In view of the foregoing findings and observations, the Appellate Division is invoking the power under Article 104 of the Constitution to do complete justice in holding that the land recorded in the name of Bharat Samrat under C.S. Khatian No. 16855 appertaining to C.S. Plot Nos. 12, 13, 14, 15, 16, 18, 19, 20, 21, 22 and 16/162 measuring an area of 55.05 acres of land belongs to the Supreme Court of Bangladesh. There is no illegality in the impugned judgment and order passed by the High Court Division which does not require any interference by the Appellate Division. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. -Vs.- Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63

Constitution of Bangladesh

Article 104-Article 104 of the Constitution is an extensive one though it is not used often or randomly. It is generally used for doing complete justice in any cause or matter pending before it in rare occasions in exceptional or extra- Ordinary cases for avoiding miscarriage of justice. To meet unwarranted and unpredicted exceptional situation this power is vested in the Appellate Division for doing complete justice.

The Appellate Division held that Article104 widens its hands so that the Appellate Division isnot powerless exceptional matters. The matters (appeals/CPLA) in our hands are matters requiring exercise of this power, to save a valuable property of the Government from the clutches of greedy land/property grabbers, that too with the active collaboration and help from the Government Officials. Therefore, the Appellate Division has no other option than to exercise our power under article 104 of the Constitution. In the instant matters, it is absolutely necessary to do so. Moreover, if the Appellate Division does not exercise the power, given by our beloved Constitution under article 104 in these mat- ters, it would give a wrong message to the unscrupulous land/property grabbers and in such case this judgment would be used as a tool/device to grab other Government properties with the seal of the Court. Therefore, under compelling circumstances, the Appellate Division has exercised its power under article 104 of the Constitution in dealing with the appeals and the CPLA for doing complete justice. Finally, the Appellate Division appreciates Mr. Murad Raza, the learned Additional Attorney General, who with the leave of the Court, within a very short period has been able to assist the Court immensely by his elaborate arguments studying the abandoned property file meticulously. The Appellate Division also appreciates Mr. Nozrul Islam Chowdhury and Mr. A.M. Aminuddin, the learned Senior Advocates and Mr. Khair Azaz Maswood and Mr. Farooque Ahmed, the learned Advocates for the contending parties, who had tried their best for the interest of their respective clients and also to assist the Court. However, the Appellate Division does not find any merit in their submissions. Noor Mohammad Khan being dead his heirs - Vs. Raisa Aziz Begum and others (Civil) 18 ALR (AD) 148-172

Constitution of Bangladesh

Article 104-The Appellate Division also opined that since the writ petition was not maintainable, whether the finding of the High Court Division that the Adalat acted illegally and without lawful authority in rejecting the plaint, can be maintained. The Appellate Division has given our anxious thought over the matter. As found earlier that the Adalat acted illegally in rejecting the plaint and if the order impugned in the writ petition is not set aside on the ground of non-maintainability of the writ petition, the order shall remain and in that case, the plaintiff has to take recourse to other forum and that shall surely cause serious prejudice to him for wrong exercise of power by the Adalat. Moreso, this wrong order passed by the Adalat may be used as precedence in a case like the instant one. It is also a fact that the plaint in question was presented before the Adalat as back as on 25.04.2000, i.e. a few days less than 16 years before. In view of these, the Appellate Division consider it a fit case to invoke the power vested in this Court under article 104 of the Constitution and accordingly in exercise of that power, the Appellate Division is inclined to interfere with the order passed by the Dewlia Adalat in Dewlia Suit No. 27 of 2000 for doing complete justice. Accordingly, this appeal is disposed of in the following terms:

The finding of the High Court Division that the writ petition was maintainable is set aside. The order dated 28.04.2000 passed by the Dewlia Adalat in Dewlia Suit No. 27 of 2000 rejecting the plaint is set aside. The Dewlia Adalat is directed to proceed with the suit and dispose the same in accordance with law. The question of maintainability of the suit shall be decided along with the other issues at the trial of the suit. Shinepukur Holdings Limited -Vs.- Abdur Rashid Chowdhury and others (Civil) 17 ALR (AD) 79-86

Constitution of Bangladesh

Article 104 read with Ad Hoc Rule, 1994

Rule 5(1)-The impugned order is contradictory with the Ad Hoc Rule, 1994, which clearly mentions that seniority will be determined from the date of confirmation and that the General Principle of Seniority, 1970 has no manner of application to ad hoc employees.

The Appellate Division observed that the High Court Division, taking into consideration the provisions of the General Principle of Seniority, held that the Office Order impugned in the instant writ petition was arbitrary and unreasonably issued, which is both malice in law as well as in fact. It was held that the impugned order was issued with an ulterior motive in order to promote someone who is not duly qualified to be so appointed in exclusion to the senior, qualified, competent officers acting in the said post, which is grossly arbitrary and discriminatory in nature amounting to denial of equal protection of law and protection in accordance with law. It was further held that the impugned order is contradictory with the Ad Hoc Rule, 1994, which clearly mentions that seniority will be determined from the date of confirmation and that the General Principle of Seniority, 1970 has no manner of application to ad hoc employees. The Appellate Division finds from the decision of the Appellate Division in Civil Appeal Nos. 60-65 of 1994 that equitable dispensation was meted out in exercise of article 104 of the Constitution on the consideration that the appellant- government would gain experienced hands and the writ-petitioners would gain fulfilment of a legitimate expectation. In view of the above facts and circumstances, the Appellate Division does not find any illegality or impropriety in the impugned judgement. Ministry of Establishment, Ban- gladesh and others -Vs- Md. Abul Hashem and another (Civil) 15 ALR (AD) 24-26

Article 104- The exercise of the power of doing 'complete justice- The exercise of the power of doing 'complete justice' under article 104 is circumscribed by two conditions, (i)that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and (ii) that the order which Supreme Court passes must be necessary for doing "complete justice" in the cause or matter pending before it. Obviously the matter pending before us in this appeal is the acquittal of two accused respondents Dafader Marfoth Ali Shah and L.D. (Dafader) Abul Hashem Mridha of the charges under sections 302/34 and 302/109 of the Penal Code. Leave to file this appeal was granted to consider only whether the acquittal of the present two accused respondents from the charges under sections 302/34 and 302/109 of the Penal Code was correct and justified. So, obviously, the question whether the acquittal of all the accused persons from the charge of criminal conspiracy-is not at all a matter pending before us. It has already been pointed out above that the present State-appellant or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy-as ordered by a court of law. In the name of doing 'complete justice' this right of the accused persons now cannot be ignored.... (Nazmun Ara Sultana, J) (Majority view).......State =VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]

Article 104-In order to do complete justice, we invoke our power under article 104 of the Constitution and dispose of the appeal finally without sending the case back on remand for trial afresh by the concerned Tribunal, under the Ain, 2000. (Per Md Abdul Wahhab Miah J, majority) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Article 104- lt a proper case to alter their conviction in exercise of powers under Article 104 of the Constitution for ends of justice. As regards the plea of minority of the appellants, I endorse the views of my learned brother Md Abdul Wahhab Miah J. The nature of the offence deserves imposition of maximum period of sentence upon the appellants. We noticed that all the appellants were tender aged boys below the age of 20 years. They had suffered in the condemned cell for more than 9 years. Considering their age and the mental agony of death sentence they faced, I feel it proper to award the appellants the minimum sentence provided in the section. (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Article 104-Article 104 can be invoked to do complete justice only in a situation where justice cannot be effectively and appropriately dispensed with by the existing provisions of law. It is now established that where the question in dispute can be settled only through the provisions of a statute, its inherent powers cannot be exercised-it is a corrective as well as residuary, supplementary and complementary to the powers specially conferred by the statute. Abdul Quader Mollah vs Chief Prosecutor, International Crimes Tribunal, Dhaka, 66 DLR (AD) 289

Article 104-The prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of the Penal Code. Invoking Article 104 of the Constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11 (ka) of the Ain, 2000. Anarul @ Anarul Huq vs State, 67 DLR (AD) 172

Article 104- Complete Justice-The exercise of the power of doing 'complete justice' under article 104 is circumscribed by two conditions, it can be exercised only when Supreme Court otherwise exercises its jurisdiction and the order which Supreme Court passes must be necessary for doing "complete justice" in the cause or matter pending before it. The State or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy. In the name of doing 'complete justice this right of the accused persons now cannot be ignored. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104-Complete Justice If a substantial justice under law and on undisputed facts can be made so that the parties may not be pushed to further litigation, a recourse to the provision of Article 104 may be justified. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104-Doing 'complete justice does not contemplate doing justice to one party by ignoring statutory provisions and thereby doing injustice to the other party by depriving him of the benefit of law. If a valuable right is accrued to the other side this fact should not be ignored in exercising the power of doing 'complete justice. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104-Complete Justice-This power is not circumscribed by any limiting words. This is an extraordinary power conferred by the Constitution and no attempt has been made to define or describe complete justice. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104-We do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power under article 104. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104-Complete Justice-If a substantial justice under law and on undisputed facts can be made so that parties may not be pushed to further litigation then a recourse to the provision of article 104 may be justified. Complete justice may not be perfect justice, and any endeavour to attain the latter will be an act of vanity. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Article 104- On the basis of second FIR all the subsequent proceedings were proceeded and in the meantime long 18 years have elapsed. Case started on the second FIR the prosecution examined all the necessary witnesses and the Adalat and the High Court Division and also this Division, on consideration of the evidence of these witnesses, have reached to their respective decision. In the circumstances though the FIR on the basis of which this case was started was illegal, we think that justice will be defeated if the entire proceeding of this case is quashed at this stage with the direction to start the proceeding of the earlier case. We, by exercising our power of doing complete justice under Article 104, maintain the whole proceeding. Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70

Article 104-Reduction of sentence-The respondent suffered much during these long years and any direction to suffer further imprisonment will only add to his misery of which he has had enough. The order of the High Court Division acquitting him though set aside and that of the conviction by the Special Judge under section 409 Penal Code is restored, the sentence of his imprisonment is, therefore, reduced to the period already undergone by him. State vs Abdul Mutaleb Khan 45 DLR (AD) 131.

Article 105-Merely reversing the order basing on the evidence on record would render the order in review without jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.

Ershad Ali Sikder vs State 56 DLR (AD) 87. Article 105-Review-The grounds taken for review of the impugned judgment are nothing but a device of rehearing of the whole civil petition for leave to appeal which is not permis- sible under Article 105 of the Constitution read with Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988.

Tarique Rahman vs Government of Bangladesh 63

DLR (AD) 162.

Article 105-In order to review a judgment there must be an error apparent on the face of the record and that this error is so apparent and manifest and clear that no court of law would permit such an error to remain on the record. The error must not only be apparent but must also have a material bearing on the face of the case. Tarique Rahman vs Government of Bangladesh 63 DLR (AD) 162.

Article 105-It is true that in the judgment sought to be reviewed, there has been no detailed discussions as to the point raised before the High Court Division that the respective petition of complaint having been filed before expiry of the statutory period as stipulated in clause (c) of the proviso to section 138(1) of the Act, was barred by law, this Division having affirmed the judgment and order passed by the High Court Division which took the view that though the respective petition of complaint was filed before expiry of thirty days from the date of receipt of the notice issued under clause (b) of the proviso to section 138, was maintainable in law, in fact, gave the answer. Sarwar Hossain Moni (Md) vs State, 66 DLR (AD) 283

Article 105-The Appellate Division can review its decision where an error is apparent on the face of the record or where manifest error or injustice is shown to have been caused by the earlier decision. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 105-Review-Commutation of the sentence of death-Since the sentence of death is the legal sentence for murder particularly if the murder is perpetrated cold-bloodedly and in the absence of any extenuating circumstances to commute the sentence, this Division has committed 'no error of law in maintaining the petitioners' sentence. Rasedul Islam (Md) vs State, 68 DLR (AD) 114

Article 105-Power of review under Article 105 is not bound by a decision earlier taken by this Division. The power of review under Art.105 is an extra-ordinary power which has to be exercised sparingly in the interest of justice. Moudud Ahmed vs State (Crimi) 68 DLR (AD) 118

Article 105-Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime com- mitted by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68

Article 105-There is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. Zahangir Alam (Md) vs State (Criminal) 75 DLR (AD) 171

Article 105

It was urged on behalf of the petitioner that since the petitioners' father had al- ready exhausted his portion of the prop- erty to his sons, their mother gifted a portion of her share by the impugned deed of hiba-bil-ewaj which was not considered by this Division and there- fore, there is an error apparent on the face of the judgment, for which, the judgment of this Division is required to be reviewed. Zaglul Mahmood vs. Mosammat Mahmuda Khatun (S.K. Sinha J) (Civil) 9 ADC 642

Article 104- Considering the above stated facts and circumstances and the legal position we do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power of this Division under article 104 of the Constitution.... (Nazmun Ara Sultana, J) (Majority view) .....State =VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]

Constitution of Bangladesh, 1972 

Article 104

When collusion and fraud have been established and illegal order/direction and decrees have been obtained from the Courts, this Court cannot shut its eyes and remain a silent spectator. This Court must come forward to undo the wrongs by setting aside the illegal decrees.

Constitution of Bangladesh, 1972 

Article 104

This Court has the duty and obligation to rise to the occasion in order to do substantial and complete justice. Since collusion and fraud affect the solemnity, regularity and orderliness of the proceedings of the Courts, this Court, in exercise of its extra-ordinary power, is authorised to set aside the decrees obtained illegally by collusion. (28)

Duty of the Judges

It is the duty of the Judges to maintain high ethical standard and impartiality. It is duty of the Judges to act at all times in a manner that promotes public confidence in respect of the integrity and impartiality of the Judges and the judiciary as a whole.

Fraud

When at the instance of the writ petitioner the Rule was discharged as not being pressed, consequently, ad-interim direction given by the High Court Division became non-est. In fact, a gigantic fraud has been committed upon the Court inasmuch as the writ petitioner was active in concealing the facts having full knowledge of the fact that the interim order does not exist...(25)

Duty of the lawyers 

The lawyers being officers of the Court are equally responsible to maintain the dignity, prestige and image of the Court as well as the judiciary as a whole. They totally failed to perform their duties as deserved by the Court.  72 DLR (AD) (2020) 1

It is settled principle that the relief which cannot be granted in the Rule should not be granted in the interim prayer. An interim relief be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his right in a proceeding. The main purpose of passing an interim order is to evolve a workable formula or the workable arrangement to the extent called for by the demands of the situation. It is well settled that an interim order merges with the final order and does not exist by itself. An interim order would be non- est in the eye of law when the Rule is discharged. It must, in such circumstances, take effect as if there were no interim order. 72 DLR (AD) (2020) 1

Universities and colleges (under universities) should strictly prohibit any sort of activities in the name of Ragging: Ragging, now-a-days, appears to be a socio-legal problem. It demoralizes the victim who joins higher education life with many hopes and expectations. Besides the physical and mental torture including grievous injuries, it simultaneously causes grave psychological stress and trauma to the victim. Even the victim may drop out and thereby hampering his/her career prospects. In extreme cases, incidents of suicides and culpable homicide may also be happened. In the circumstances, in order to resist this socio-academic disease, all the universities and colleges (under universities) should strictly prohibit any sort of activities in the name of Ragging. All the universities and colleges (under universities) should be stringent in taking anti-ragging measures. Therefore, all educational institutions (including universities and colleges) shall observe the following measures to protect and prevent the activities in the name of Ragging: 

i) Educational institutions shall not allow the students to participate in any untoward incident and all sorts of activities/gathering/performance in the name of Ragging. 

ii) Every educational institution including all university authorities should have Vigilance Committee to ensure vigil on incidents that may happen under the garb of Ragging. Managements of educational institutions should be responsible for non-reporting or inaction against the incidents of Ragging in their respective premises including residential halls.

iii)   Authorities of all educational institutions shall publish the consequences for committing Ragging. In particular, at the main and prominent spot/point(s) of the institution.

iv) Posters containing measures against the Ragging have to be posted in the website of respective institutions which will warn the students about the 

consequences for committing Ragging.

v) An affidavit in the form of undertaking may be obtained from the students and their parents before start of new session to the effect that if any student found involving in Ragging he/she will be punished.

vi) Whatever the term “Ragging” or any other word is used, whenever, an incident happens with the elements of criminal offences, the authority should take action against the perpetrators under the prevailing law and also stern action under the  Disciplinary Ordinance of the University like expelling the perpetrators from the university for good. (Para 27, 28 & 29)

Article 105- In a review matter cannot re-assess the evidence afresh and re- hearing- In the judgment the charges and evidence of the witnesses both oral and documentary have been meticulously considered and after evaluation of the same this court modified the conviction and commuted the sentence by majority as above. In a review matter this court cannot re-assess the evidence afresh and re-hear the matter. This court dispose of the points so far as it is relevant for the disposal of the matter. This court has discussed the evidence thoroughly in support of the Plea and disbelieved the defence plea. All points agitated by the learned counsel on behalf of the petitioner are not relevant for disposal of the review petition. The points raised by the learned counsel are reiteration of the points agitated at the time of hearing of the appeal. There is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. The learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly they are dismissed.......Bangladesh =VS= Allama Delwar Hossain Sayedee, [3 LM (AD) 538]

Article 105- Review- The learned counsel fails to point out any error of law in the judgment of this court. We find no merit in these petitions....... Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 584]

Article 105- C. P. No.3472 of 2015 is set aside. The High Court Division is directed to dispose of the Rule- This civil review petition is disposed of and the order dated 02.06.2016 passed in Civil Petition for Leave to Appeal No.3472 of 2015 is set aside. The orders dated 01.07.2014 and 27.02.2012 of the High Court Division are also set aside. The order dated 10.09.2007 discharging the Rule is vacated and the Rule is restored to its original file and number. The High Court Division is directed to dispose of the Rule as expeditiously as possible...... Deputy Commissioner, Sylhet -VS- Md. Suruj Ali, [5 LM (AD) 300]

Article 105- Review- This Division consistently held that review by no means is a re-hearing of the appeal. We are, therefore, of the view that in all these civil review petitions the grounds urged by the petitioners are nothing but the grounds taken into consideration and repelled in the leave Petitions. It is therefore not permissible to embark upon a reiteration of the same contentions as were advanced at the time of hearing of the leave petitions. We are of the opinion that there is no error apparent on the face of the record to interfere in the impugned judgment and order passed by this Division in the above leave petitions. There is no legal ground in these civil review petitions for review of the impugned judgment and order passed by this Division in the civil petitions for leave to appeal. These civil review petitions are dismissed. .....Abdul Mazid Sarker(Md.) VS Bangladesh, [5 LM (AD) 367]

Article 105- Review- Modification of the ordering portion of the judgment- To secure the ends of justice, the ordering portion of judgment of this Court is modified adding the words "as described in the schedule to the plaint quoted hereinbefore" after the words "in the suit plot" and if there is any excess land in the suit plot, ie more than 612 square yards and 6 sft as claimed by the plaintiffs, they shall have no claim therein. It is the RAJUK to decide whether defendant No. 1-petitioner would get the excess land in the suit plot, if there be any, if so advised, the petitioner may approach the RAJUK to ventilate his grievance. But we make it very clear that RAJUK shall not in any way encroach upon the land of the plaintiffs as described in the schedule to the plaint. Modification of the ordering portion of the judgment sought to be reviewed. .....Anwarul Huq -VS-Iqbal Ahmed, [3 LM (AD) 13]

Article 105- The facts and circumstances and new papers produced in this Court which were not produced and considered by this Court earlier and that from the new materials produced in this Court it appears that in those papers the University authority and the writ petitioner approved the decision for confirmation of services of the appellants, we are of the view that the appellants are entitled to get relief because error has crept in earlier decision. .....Dr. Khairun Nahar VS Professor Dr. Iqbal Arshalan, [3 LM (AD) 215]

Article 105- Review No new and relevant materials have been produced to substantiate the claim for review. The review petition is dismissed. .....Lancaster Export Service Ltd =VS= Forseti Group Inc. [3 LM (AD) 240]  

The Constitution of the People's Re- public of Bangladesh 

Article 105

Where a lease of immoveable property is made by more instruments than one, each such instruments shall be executed by both the lessor and the lessee and as the kabuliat and Patta, exts. B and C were not signed by both the lessor and the lessee, these documents were void and no separate tenancy could be cre- ated by those void documents and hence, there was no separation of ten- ancy and that the right of pre-emption was not affected by exts. B and Cas rightly found by the lower appellate Court. Subrata Dev Roy vs. Saroswati Rabni Paul (S.K. Sinha J) (Civil) 8 ADC 477

Article 105- Review- The defendant-petitioner got ample opportunity to agitate this ground before the courts below and also before this Division at the time of hearing of civil petition for leave to appeal, but he did not do so. Considering the above facts and circumstances we do not find any sufficient ground to review the judgment and order in question and hence this civil petition for review be dismissed. Mominul Islam(Md.) VS Md. Aminul Islam, [3 LM (AD) 412]

Article 105- Review- A suit may be brought in a Civil Court only upon the ground of fraud. In the instant case no ground of fraud has been alleged or established. There was no illegality in the judgement and decree of the trial Court which has been upheld by this Division. We do not find any merit in this review petition....Shohel Kamal Joha =VS= SK. Mohammad Mahmud, [6 LM (AD) 63]

Article 105- Review- The Appellate Division seriously erred in law, which error resulted in an error on the face of the record in that in view of the fact that when the project profile expressly provides a specific provision for absorption of the employees in the revenue budget and as per the said provision an employee is absorbed in revenue budget and has been serving under the revenue budget. The Appellate Division seriously erred in law, which error resulted in an error on the face of the record in that the Appellate Division failed to enter into any discussion on any of the review petitioners (Review Petition  Nos.338, 339, 340, 341 and 342 of 2016). Accordingly, leave is granted in all the petitions....Sultana Zahid Parvin =VS= S.M. Fazlul Karim, [6 LM (AD) 67]

Article 107(3)- A litigant or Judge is not entitled to have any say in the selection of any Judge or Judges who are to constitute a particular Bench. It is the Chief Justice of Bangladesh who exercises the power under Article 107(3) of the Constitution and is to decide such constitution of Benches. (Para-6); The State -VS- Mr. Swadesh Roy, [2 LM (AD) 576]

Article 108- Contempt of court may be classified into three categories, namely (1) disobedience of court orders and breach of undertakings given to the court, (2) scandalisation of the court and (3) interference with the administration of justice. The first category is termed as civil contempt, whereas the other two categories are contempt of a criminal nature. In the facts and circumstances of the instant case, we are not concerned with the first category since there is no allegation of any breach or non-compliance by the contemnors-respondents of any order issued by this Court. The question to be considered is whether the respondents have made comments/remarks which scandalise the Court or which interfere with the administration of justice. ..... The State VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28]

Article 108- Punishment- It is generally accepted that for the sake of maintaining proper order and to ensure compliance of the directions given in judgements, the courts have an inherent power to punish any person or authority for contempt. The Supreme Court has been given specific power by the Constitution to punish for its contempt. Article 108 of the Constitution.

The contemnors have tendered unconditional apology at the earliest opportunity, we are taking a lenient view in awarding the sentence. The contemnors are sentenced to pay fine of Tk.50,000/- (fifty thousand only) each within seven days from date and donate the same to the Islamia Eye Hospital (Dhaka City), Farmgate, Dhaka and the National Liver Foundation of Bangladesh, 150 Green Road, Panthapath, Dhaka-1215, in default to suffer simple imprisonment for seven days. The State VS Adv. Md. Qamrul Islam, M.P & another. [1 LM (AD) 28]

Article 108-The Supreme Court has an inherent jurisdiction to punish for contempt of Court. (Per Naima Haider, J) State vs Mizanur Rahman Khan, 70 DLR 1272

Article 108

Undoubtly the press has freedom but this freedom is controlled by the basic concepts of the written Constitution it- self and can be exercised within the lim- its allowed to its independence. If the press steps beyond the limits allowed it, or acting within its boundary, trespass on the administration of justice in a manner not justified by the law, its in- dependence is liable to be struck down by the Courts. Therefore, it is necessary to remember that though our press has independence they perform function within the limits prescribed by law and the relevant provisions of the Constitu- tion. In a democratic country governed by a written Constitution, it is the Con- stitution which is Supreme and Sover- eign. The Constitution has entrusted to the judiciary the task of construing the provisions of the Constitution. When a citizen challenged an article or com- mentary of a journalist on the ground that the journalist has written which is obscene or has scandalized the judiciary or has interfered with the administration of justice or has unconstitutionally tres- passed beyond his limits, it is for the Courts to determine the dispute and decide whether the writings are within the limits of independence. Adjudication of such a dispute is entrusted solely and exclusively to the judiciary of the coun- try and not on the journalists or columnists or academicians.Md. Riaz Uddin Khan vs. Mahmudur Rahman (S.K. Sinha J) (Civil) 9 ADC 140

Constitution of Bangladesh

Article 108 read with

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Order XXVII, Rule 1 read with Contempt of Court Act, 1926

The two items published by the contemnor in the social media, namely Facebook are a direct affront to the constitutional authority of the Honourable Chief Justice and the Supreme Court and had the effect of lowering the dignity of the position of the Honourable Chief Justice and the Supreme Court. Evidently the contemnor achieved his intended goal as can be seen by the posts of his followers who apparently supported his views and applauded his comments.

The Appellate Division observed that when the Chief Justice of Bangladesh in consultation with his companion judges of the Supreme Court decided in a Full-Court meeting to enable urgent matters to be heard by means of virtual hearing, it was an act done for the benefit of the litigant public. Just at that time the contemnor decided to ridicule the action of the Honourable Chief Justice by calling it "mockery". The contemnor then published his contemptuous views on Facebook for the whole world to see. Moreover, he instigated others to join him in protest against virtual hearings. Sadly, it appears that there are others within the legal fraternity, learned Advocates of the Bar who adhere to his views and applauded his contemptuous remarks. The sum and substance of the submissions placed before the Appellate Division by the learned Advocates from the Bar is that the contemnor does not deny or seek to justify the words which he has used and published in the social media. It is also not denied that the words are contemptuous and lower the dignity of the Honourable Chief Justice, the Supreme Court of Bangladesh and the administration of justice. The learned Advocates made reference to the respectable family background of the contemnor, including the fact that his wife is a practising advocate and that his father was a Freedom fighter. The Appellate Division has sympathy for the family of the contemnor and understand that they must be distressed by his present circumstances. The contemnor's wife as well as the learned Advocates who appeared on his behalf all gave assurances that he would not commit such an offence ever again in the future. Suffice it to say that we believe that the contemnor will not commit such an offence again. However, he admits the fact that he has committed the offence and thus the damage of bringing the Court and the administration of justice to disrepute has been done. The two items published by the contemnor in the social media, namely Facebook are a direct affront to the constitutional authority of the Honourable Chief Justice and the Supreme Court and had the effect of lowering the dignity of the position of the Honourable Chief Justice and the Supreme Court. Evidently the contemnor achieved his intended goal as can be seen by the posts of his followers who apparently supported his views and applauded his comments. At the time of issuing notice upon the contemnor on 12.08.2020, he was directed not to appear before any Bench of the Supreme Court from that date until his appearance in court on 20.08.20. He has thus suffered the inability to exercise his privilege of appearing before the Supreme Court for nine days. In view of the above facts and circumstances, the Appellate Division finds that the contemnor has admitted his guilt. However, in view of his apology and assurance that he will never commit such offence again, and the fact that he has refrained from appearing before any Bench of the Supreme Court as ordered by this Court, the Appellate Division is not inclined to take the matter any further. Accordingly, this contempt proceeding is disposed of. Let the video recording of this proceeding be kept for future reference. Government of Bangladesh -Vs.- Syed Mamun Mahbub (Civil) 21 ALR (AD) 40-44

বাংলাদেশ সংবিধানের

অনুচ্ছেদ ১০৯ -হাইকোর্ট বিভাগ বলেন যে, আদালত এ অভিজ্ঞতা অর্জন করেছে যে, পারিবারিক আদালতসমূহে শিশুদের অভিভাবকত্ব ও হেফাজত সম্পর্কে মামলাসমূহ দীর্ঘ সময় ধরে চলমান। আদালতের নজরে এসেছে যে, ২০১০ সাল, ২০১৪ সাল এবং ২০১৮ সালের দাখিলকৃত মামলাসমূহ এখনো বিচারাধীন। শিশুদের অভিভাবকত্ব ও হেফাজত সম্পর্কে মামলাগুলো এতো দীর্ঘ সময় ধরে চলমান থাকা দুঃখ ও হতাশাজনক এবং ন্যায়-নীতির পরিপন্থী। এ সকল মামলাসমূহ দ্রুত নিষ্পত্তি হওয়া বাঞ্ছনীয়। এমতাবস্থায়, সংবিধানের অনুচ্ছেদ ১০৯ অনুযায়ী দেশের সকল পারিবারিক আদালতসমূহকে শিশু সন্তানদের অভিভাবকত্ব ও হেফাজত সম্পর্কিত মামলাসমূহ যাতে মামলা দায়েরের ৬ (ছয়) মাসের মধ্যে নিষ্পত্তি করা সম্ভব হয় সে বিষয়ে নির্দেশনা প্রদান করা হলো। আদালত আরো পর্যবেক্ষণ করেছে যে, পারিবারিক আদালতসমূহের বিভিন্ন আদেশ বিশেষত: শিশু সন্তানকে দেখা-সাক্ষাতের আদেশ সংশ্লিষ্ট পক্ষ মান্য করছেন না; ফলশ্রুতিতে তারা হাইকোর্ট বিভাগে এসে হেবিয়াস করপাস অধিক্ষেত্রে আশ্রয় গ্রহণ করছেন। তামান্না ফেরদৌস -বনাম- বাংলাদেশ সরকার গং (Spl. Original) 23 ALR (HCD) 77

Articles 109- The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by the High Court Division of the Supreme Court shall be binding on all courts subordinate to it all District Courts are subordinate to the High Court Division. It is not subordinate to the Ministry of Law and Justice. Department. Govt. of Bangladesh & another VS Md. Abul Kalam Azad & others, [1 LM (AD) 267]

Articles 109, 116 and 116A- The superintendence and control of the officers of the lower Judiciary remains with the Supreme Court- The superintendence and control over all courts and tribunals subordinate to it is upon the High Court Division as per article 109 of the constitution. The Supreme Court has its own system and machinery to evaluate the conduct, discipline, performance of all judicial officers working in the subordinate courts and tribunals. Firstly, through the judgments pronounced by them which ultimately come to the High Court Division for judicial review. Secondly, from the annual confidential reports being prepared in accordance with Rules. Finally, through inspections made from time to time by the Judges of the High Court Division as per direction of the Chief Justice. This system is being followed right from 1861 when the High Courts were established in this sub- continent under the High Courts Act, 1861.

Whenever, any recommendation, proposal or opinion regarding the terms and conditions of service of any judicial officer is made by the Supreme Court, this recommendation is being honoured by the Executive government without further inquiry because the Executive does not have such machinery or system to evaluate the conduct and performance of the judicial officers. If the superintendence and control of the subordinate judiciary is left in the hands of Executive, the independence of judiciary will be in question. From the time of the separation of the judiciary from the Executive, it is the Supreme Court under whose supervision the subordinate judicial officers are working and it supervises its administration and controls the conduct of judicial officers. There cannot be any doubt about it. The lower judiciary cannot be independent if its superintendence and control over the judicial officers remains with the Executive. The Executive is also conscious about that, and all the time it represents that it does not interfere with the administration of justice. If articles 116, 116A are read along with article 109, it will be manifest that it is the Supreme Court which has the exclusive power to supervise and control the terms and conditions of service of the subordinate judicial officers. Article 116 does not control article 109, rather if these two provisions are placed in juxtaposition, it will be clear that the superintendence and control of the officers of the lower judiciary remains with the Supreme Court. Government of Bangladesh -VS- Sontosh Kumar Shaha, (4 LM (AD) 143]

Article 109 and 116- This amendment is in direct conflict with article 109, which provides that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. If the High Court Division has superintendence and control over the lower judiciary, how it shall control the officers performing judicial works if the Executive controls the posting, promotion and discipline, disciplinary action is not clear to me. (Surendra Kumar Sinha, CJ)....Government of Bangladesh VS Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 110 of the Constitution: The mere fact that decision on the application for allotment of land and registration of the lease deed were taken at a short span cannot be considered as an element of collusion and fraud since the allotment was made upon observing the procedure. (Para-28, Mr. Justice Md. Ruhul Amin). 25 BLD(AD)91=1 XP Plus(AD)49: Capital Tower Limited Vs. Mirpur Mazar Co-operative Market Society Ltd. & others

Article 111-Article 111 provides that the 'law' declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it. The State VS Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28]

Article 111-Pursuant to the provisions enunciated in Article 111 the law declared by the Appellate Division does have binding effect on the High Court Division and all other courts. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60

Article 111-Glaring non application of judicial mind of the High Court Division, as it appears, in allowing an anticipatory bail seems to be an instance of defiance of the settled legal proposition. It is highly deprecated. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60

Article 111-An order of stay takes effect from the moment it is passed and the knowledge of the court or others concerned is immaterial. The information of the existence of such a prohibiting order must be communicated in any way to the courts below for the purpose of proceedings to be taken against any person for contempt of the authority of the higher Court. But the operation of the order is not in any way postponed till it has been communicated to the subordinate Court or the party intended to be affected by it. State vs Omit Hasan (Criminal) 75 DLR (AD)

Article 111-Any decision passed by this Division is binding upon all Courts in Bangladesh and no judge can ignore it. If he does it may not only be contemptuous but also tantamount to violation of the Constitution. State vs Mukta Khan 63 DLR (AD) 57.

Article 111-The decision passed in Huri Doyal Singh Sarmana and others vs Girish Chunder Mukerjee and others [Ind. LR 17 Cal. 9/11 and the decision in the case of Sheo Shankar Lal and another vs Debi Sahai (1903), reported in 30 IA 202 does not have a binding effect and cannot be treated as a binding precedent. Shishubar Dhali vs Chitta Ranjan Mondol (Civil) 75 DLR (AD) 125

Article 111-The case laws declared by any superior court other than Bangladesh including Pakistan after 25th March, 1971 and that of India after 13th August, 1947 are not applicable in our jurisdiction as binding precedents. They may have some sort of persuasive efficacy in our legal arena and can be used to assist or guide Bangladesh Supreme Court in unaling decisions on new facts. Terab Ali vs Syed Ullah (Civil) 75 DLR (AD) 233 

Article 111-By dint of the constitutional provisions the case laws of the then higher courts namely Dhaka High Court, Federal Court of Pakistan (14 August 1947 of its independence to 1956), Supreme Court of Pakistan (1956 to 25 March 1971); Calcutta High Court, Federal Court of India (1935-1947 13th August) the Privy Council (till 13th August, 1947) is applicable with binding effect in our jurisdiction. Terab Ali vs Syed Ullah (Cival) 75 DLR (AD) 233

Articles 111 and 149-As the Judges of subordinate Judiciary, as a whole, are not empowered to interpret laws or making a precedent, rather, are bound to apply "existing laws" as it is, it is better for them only to cite or rely on the existing laws and case laws applicable in our jurisdiction and at the same time refrain from rely on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution. Terab Ali vs Syed Ullah (Civil) 75 DLR (AD) 233

Constitution of Bangladesh

Article 111 read with

Labour Act [XL of 2006]

Sections 33(3) and 213-In the case of verbal appointment proper evidences to support the same must be placed before the court to enable it to draw a conclusion to that effect.

The High Court Division declare, in exercise of the powers vested in the High Court Division under Article 111 of the Constitution of the Peoples Republic of Bangladesh, that a person can be appointed verbally as worker or officer as well as by issuing a written appointment letter, as the case may be, unless the applicable law requires a written appointment letter to be issued. The High Court Division also take judicial notice of the trend in some employers in abstaining from issuing written appointment letters, in some cases to discourage Trade Union or, in other cases, to secure unlawful terminations, removal or dismissal. However, in the case of verbal appointment proper evidences to support the same must be placed before the court to enable it to draw a conclusion to that effect. However, the degree of proof in such a case shall be that as required to prove a civil case, not beyond any reasonable doubt, as required to prove a criminal case. Meghna Petroleum Ltd. -Vs.- 1. Labour Appellate Tribunl and others (Spl. Original) 16 ALR (HCD) 77-81

Article 111- To succeed a postulant must show that the Appellate Division resorted to a fundamental error of law, which remains apparent on the face of the judgment. One of the most striking examples would be where the Appellate Division acted per incuriam or overlooked one or more statutory provisions. As the doctrine of stare decisis does not bind the Appellate Division under Article 111 of the Constitution, a review petitioner can not invoke that doctrine. There are authorities for the proposition that fresh evidence, which has bearing on the event under consideration, but despite best efforts, could not be obtained during the original or appellate hearing, can have effect on review hearing. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392]

Constitution of Bangladesh, 1972

Article 111

The law declared by the Appellate Division is binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all subordinate Courts. Article 111 of the Constitution does not speak of law declared in civil suit, criminal case and/or writ petition etc. It cannot be said that a law declared in a writ petition does not apply in a civil suit, particularly when the law is relating to the publication of the names of the defaulter-borrowers in the CIB of Bangladesh Bank and the suits in question are also in respect of the publication. ...(4.46) [73 DLR 554]

Article 111-Obiter dictum" and 'ratio decidendi'-Obiter dictum is a judicial comment made during the course of delivering a judicial opinions which are not precedential but considered persuasive. Strictly speaking an 'obiter dictum' is a remark made or opinion expressed by a Judge in his decision upon a cause by the way, that is, incidentally or collaterally and not directly upon the question before the Court. All extra-judicial expressions of legal opinion are referred to as obiter dictum or obiter dicta. On the hand, ratio decidendi means the principle or rule of law on which a Court's decision is founded. Dr. Khandaker Mosharraf Hossain Vs. State, 65 DLR (2013)-HCD-1.

Article 111-Any observation on a point of law given by any judge of the Appellate Division does not carry serious weight and should not outrightly be ignored by the High Court Division without cogent or legal reason. Mahmudur Rahman Vs. State, (Criminal), 65 DLR (2013)-HCD-437

Article 111-Since our Appellate Division has decided the issue involved in the case, we are binding by the decision and observation of our Appellate Division. The decision of Indian Supreme Court is not binding upon us.  Saiful Islam Jitu (Md) Vs. State (Criminal), 65 DLR (2013)-HCD-234.

Article 111-The view taken by the Appellate Division in 60 DLR (AD)1 being the latest, has got binding effect on the High Court Division and, as such, we are led to hold that the impugned proceeding (FIR case), not being a regular criminal proceeding in the eye of law, cannot be quashed during investigation period. Sadek Hossain (Md.) Vs. State (Criminal), 18 BLC (2013)-HCD-278.

Article 111 of the Constitution:

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

Articles 111-It is for the appellate Court to give reasons for setting aside the order upon scrutiny, if so required. The contemnor is not a man on the Clapham Omnibus. He should have known it that order set aside by the higher Court cannot be the subject matter of any criticism even in the name of constructive criticism. (Per Zafar Ahmed, J) State vs Mizanur Rahman Khan, 70 DLR 272

Article 111-14 BLC is not applicable in the case as there is no order of stay relating to proceedings by the Hon'ble Appellate Division. Moreover, this Division directed the court below to conclude trial of the case as expeditiously as possible. There is no legal bar in continuation of the proceeding against this petitioner rather it is obligatory upon the trial court to implement the judgment and order according to the provisions of Article 111 of the Constitution. Mahmudur Rahman vs State, 66 DLR 609

Article 111-One of the most striking examples would be where this Division acted per incuriam or overlooked one or more statutory provisions. As the doctrine of stare decisis does not bind this Division under Article 111 of the Constitution, a review petitioner cannot invoke that doctrine. Kamaruzzaman vs Government of Bangladesh, 67 DLR (AD) 157

Article 111-Any observation on a point of law given by any judge of the Appellate Division does carry serious weight and should not outrightly be ignored by the High Court Division without cogent or legal reason. Mahmudur Rahman vs State, 65 DLR 437

Article 111-'Obiter dictum and 'ratio decidendi'-Obiter dictum is a judicial comment made during the course of delivering a judicial opinions which are not precedential but considered persuasive. Strictly speaking an obiter dictum' is a remark made or opinion expressed by a Judge in his decision upon a cause by the way, that is, incidentally or collaterally and not directly upon the question before the Court. All extra-judicial expressions of legal opinion arc referred to as obiter dictum or obiter dicta. On the other hand, ratio decidendi means the principle or rule of law on which a Court's decision is founded. Dr Khandaker Mosharraf Hossain vs State, 65 DLR 1

Article 111-Since our Appellate Division has decided the issue involved in the case, we are binding by the decision and observation of our Appellate Division. The decision of Indian Supreme Court is not binding upon us. Saiful Islam Jitu (Md) vs State, 65 DLR 234

Article 111-Obiter dictum-A solitary, isolated and passing observation or an opinion expressed by the way in the judgment of this Division on a matter which was not before the court and which was not necessary in disposing of the criminal petition for leave to appeal for which no principle and precedent was cited and which was not even remotely a ratio of the judgment is nothing but an obiter dictum. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 111-The observations of this Division are not relevant in the case, because the respondent did not raise any objection as to the issuance of notice/order under section 26(1) of the Act while he was in custody. Rather he complied with the same by submitting the statement of assets and liabilities within the stipulated time. Moreover, he was allowed to submit long after the stipulated date a supplementary statement of assets and liabilities which was marked as an exhibit during the course of trial. This issue was not raised, deliberated upon and decided before the trial court and the High Court Division in as much as no such issue was raised and deliberated upon before the Appellate Division and that this observation being an obiter dictum cannot operate as a binding precedent, which is not a law declared by the Appellate Division pursuant to Article 111 of the Constitution and, as such, it is not binding on the High Court Division and all other courts and tribunals as a legal precedent. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 111-Observation made in paragraph 44 of the decision of the case reported in 62 DLR (AD) 290 cannot be used as the binding precedent under Article 111 of the Constitution. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 111-What is binding on a Court is the ratio decidendi not the obiter dictum nor the judgment given per incuriam. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 111-Observation made in paragraph 45 is wrong in principle and cannot be justified by provisions of law. Moudud Ahmed vs State, 68 DLR (AD) 118

Article 111-It is well established that the statement of law which is an obiter dictum cannot operate as a binding precedent under Article 111 of the Constitution because it was unnecessary for the decision of the case. A decision of a case is an authority for what it actually decides. The essence of the decision of a case is ratio and not every observation found therein nor what logically flows from the various observations made in the judgment.Moudud Ahmed vs State, 68 DLR (AD) 118

Articles 111 and 112-All executives and judicial authorities shall act in aid of the Supreme Court. Those authorities must comply and act in accordance with the orders and directions given by either Division of the Supreme Court. Hafiz Ibrahim vs State, 68 DLR 121

Constitution of Bangladesh, 1972 

Article 111

Regarding non applicability of the decision of the case of Badal Kumar Paul vs the State, 55 DLR 218 in a case of phensidyl containing 'codeine". We have noticed that operation of the judgment and order of Badal Kumar Paul's case has been stayed by the Hon'ble Appellate Division and the order of stay is still in force.  [73 DLR 37]

Article 112 and 113

Executive Government like the Deputy Secretary was neither authorized nor had any power to turn down the decision of the Hon'ble Chief Justice and since rules have not yet been framed by the Supreme Court for the terms and conditions of the service of its staffs, the recommendation made by the Hon'ble Chief Justice is binding upon the exec- utive authorities according to article 112 of the Constitution; the service of the Jamadars and the drivers even if "two designation of employees does their du- ties almost similar work under the same person" the doctrine of equal pay for equal work will apply and thus, the Ja- madars are entitled to the salary equiv- alent to the scale of drivers.

Government of Bangladesh vs. Md. Shafiqur Rahman (Md. Abdul Wahhab Miah J) (Civil) 8ADC 572

Article 117(2)- There is common question of law involve for the consideration of the following points:

(i) whether a disciplinary action taken against an officer of the Judicial Service of the Republic can seek judicial review against such action.

(ii) whether the General Administration Committee (G. A. Committee) can ignore a recommendation of the Executive Government to exonerate an officer of the lower judiciary and direct the concerned Ministry to take penal action.

(iii) whether an employee in the service of the Republic can claim higher status and grade without challenging his service Rules in comparison with his counterpart serving at different departments under the similar nomenclature i.e. post.

(iv) whether the Administrative Tribunal established under article 117(2) of the constitution can strike down an administrative order for infringement of fundamental rights guaranteed by constitution. 

(v) whether judicial review in the High Court Division is available in respect of the terms and conditions of service of an employee in the service of the Republic.

(iv) whether the Administrative Tribunal is competent to examine the constitutional validity of a statutory provision.

(vii) whether the Administrative Tribunal can pass interim order so as not to frustrating the proceedings pending before it...... Government of Bangladesh -VS- Sontosh Kumar Shaha, [4 LM (AD) 143]

Article 117- In Civil Appeal No. 159 of 2010, Government of Bangladesh vs Sontosh Kumar Saha and others that the Administrative Tribunal set up to exercise the powers under Article 117 of the Constitution shall have exclusive jurisdiction to decide the terms and conditions of service of the public servants and that no judicial review of the actions of the authority will be available to them, except in a case where the vires of law is challenged in which cases only. Civil court can also pass or make interim orders, subject to fulfillment of certain terms and conditions.

Writ petitioners can seek reliefs before the Administrative Tribunal, we make it clear that if the writ petitioners desire to redress their grievances before the Administrative Tribunal since they had been prosecuting their grievances in the Supreme Court of Bangladesh for a long time, the Administrative Tribunal shall entertain their petitions, if any, are filed on condoning the delay under section 14 of the Limitation Act. We also waive the statutory bar applicable to an applicant for filing a departmental appeal before the appellate authority, hority, since they have already moved the High Court Division, the said period of limitation has already expired. We want to make it clear that the proviso to sub section (4) shall not stand in the way in making the applications and the Administrative Tribunal shall admit the petitions as if the applicants have preferred appeals under proviso to sub section (4). We further direct the Administrative Tribunal to dispose of the petitions, if any is filed, on priority basis not later than 6 (six) months from the date of receipt of the order.... Ministry of Education, Dhaka VS GMM Mizanur Rahman Bhuiyan, [6 LM (AD) 32]

Constitution of Bangladesh

Article 117 read with Limitation Act [IX of 1908]

Section 14 - The Administrative Tribunal set up to exercise the powers under Article 117 of the Constitution shall have exclusive jurisdiction to decide the terms and conditions of service of the public servants and that no judicial review of the actions of the authority will be available to them, except in a case where the vires of law is challenged in which cases only, judicial review will be available. The Appellate Division has Also decided that since the tribunals established under the Constitution have all the trappings of civil court can also pass or make interim orders, subject to fulfillment of certain terms and conditions.

The Appellate Division is of the view that these writ petitions are not maintainable and accordingly, the Appellate Division set aside the judgments of the High Court Division. The Appellate Division has noticed that the writ petitioners have been fighting for years together for infringement of their rights and status, and the Appellate Division could not dispose of the appeals for a long time. However, the Appellate Division is not inclined to take a different view in respect of these writ petitioners due to such delay. Since the writ petitioners can seek reliefs before the Administrative Tribunal, the Appellate Division makes it clear that if the writ petitioners desire to redress their grievances before the Administrative Tribunal since they had been prosecuting their grievances in the Supreme Court of Bangladesh for a long time, the Administrative Tribunal shall entertain their petitions, if any, are filed on condoning the delay under section 14 of the Limitation Act. The Appellate Division also waive the statutory bar applicable to an applicant for filing a departmental appeal before the appellate authority, since they have already moved the High Court Division, the said period of limitation has already expired. The Appellate Division want to make it clear that the proviso to sub section (4) shall not stand in the way in making the applications and the Administrative Tribunal shall admit the petitions as if the applicants have preferred appeals under proviso to sub section (4). The Appellate Division further direct the Administrative Tribunal to dispose of the petitions, if any is filed, on priority basis not later than 6 (six) months from the date of receipt of the order. If the respondents try to drag on the matters for filing written objection, it shall proceed with the cases exparte by rejecting their prayer and without waiting to file written objections. The appeals and the petitions are disposed of with the above findings, direction and observations. Bangladesh and others -Vs.- GMM Mizanur Rahman Bhuiyan and others (Civil) 23 ALR (AD) 37

Constitution of Bangladesh

Article 117 read with Administrative Tribunal Act [VII of 1981]

Section 4 read with Public Servants (Retirement) Act, 1974

Section 9(2) - The High Court Division, erred in law in entertaining the writ petition inasmuch as those were barred under the provision of Article 117 of the Constitution read with section 4 of the Administrative Tribunal Act.

It appears to the Appellate Division that both the writ petitioner-respondents were Sub-Inspector of Police, that is, they were public servant. They challenged the orders of their compulsory retirement issued by the writ respondent No. 3. Simple submission of the Government is that against the order of compulsory retirement the writ petitions were not maintainable. The writ petitioner respondents were public servant and that from the definition of public servant it appears that the persons in the police services have not been excluded. The police personnel being in the service of the republic are public servants and their remedies lie with the Administrative Tribunal under the provision of section No. 4 of the Administrative Tribunal Act which has been set up pursuant to the provision of Article 117 of the Constitution. In the recent case as cited by the learned Deputy Attorney General the Appellate Division has expressed the aforesaid views. The writ petitioners did not challenge the vires of law. In such view of the matter, the writ petitions were not maintainable. Since the law and the issue adjudicated here are well settled by this Division, the Appellate Division is of the view that no purpose would be served if the Appellate Division grants leave which would delay the disposal of the matter. Accordingly, both the petitions are disposed of. The judgment and orders impugned in these two petitions passed by the High Court Division in Writ Petition Nos. 10953 and 10954 of 2006 are hereby set aside. Bangladesh, represented by the Secretary, Ministry of Home Affairs, Secretarial Building, Ramna, Dhaka and others. -Vs.- Md. Jalal Ahmed Khan. (Civil) 20 ALR (AD) 72-73

Constitution of Bangladesh

Article 117(1)(a) read with

Administrative Tribunal Act, 1980

Section 4(1)-The Administrative Tribunal can exercise jurisdiction in the service of the Republic. Section 4(1) of the Act of 1980 was also couched with the similar language. The language used in those provisions are so wide enough to come to the conclusion that the Tribunal is competent to deal with those issues.

The Appellate Division held that the Tri- bunal has been given all powers relating to the terms and conditions of service and therefore, there is no reason to restrict the powers of the Tribunal by judicial pro- nouncement. These matters are within the powers of the Tribunal and therefore, if a public servant wants to challenge the actions as above under Article 102(1), it will be barred under clause(2) of Article 117 of the Constitution of Bangladesh. The principle expounded in the case referred to above, squarely applies to the facts of the present case. Since the maintainability of such petitions has already been settled by the Appellate Division in the case referred to above, the Appellate Division is inclined to grant leave. Therefore, the Appellate Division is inclined to dispose of the review-petition. In the light of the findings made before, this review-petition is disposed of. The impugned order dated 26.04.2015 and the judgment and order dated 09.12.2010 delivered in Writ Petition No. 7331 of 2010 are set aside. The writ- petitions may seek appropriate remedy before the Administrative Tribunal, if so advised. Government of Bangladesh, represented by the Secretary, Ministry of Establishment and others. -Vs.- Abdul Mannan and others. (Civil) 16 ALR (AD) 1-3

Article 118, 3A, 20(1), 91 (b) 

Barnard and others Vs. National Dock Labour Board and another, 1953(1) All England Law Reports 1113.Vine Vs Notional Dock Labour Board, 1956(3) All England Law Reports 939. Allingham and another Vs. Minister of Agriculture and Fisheries, 1948(1) All England Law Reports 780. Jamal Shaha, 18 DLR(SC) 1. 

On a careful consideration of the law on the subject we are of the view that the Acting Chief Election Commissioner had acted Coram non judice in exercising his power in this particular case. Jatiya Party vs Election Commission for Bangladesh (Latifur Rahman CJ)(Civil) 2ADC 175

Article 119-Election Commission is independent while exercising its power under Article 119 of the Constitution which does not include the power of appointment and terms and conditions of service of the employee under the Election Commission Secretariat. During the election all Deputy Commissioners, Superintendents of Police and other concerned officials are placed under the control of the Election Commission for the purpose of holding election, Undoubtedly, none of the organs of the Government including the executive can interfere with the functions of the Election Commission. Bangladesh vs Md Abdul Alim (Civil) 75 DLR (AD) 147

Article 133- Rule making power has been given upon the President- If the Rules contravene any of the provisions of the constitution, the Rules shall be void. Article 133 clearly empowers the Parliament to promulgate law regarding conditions of service but the proviso is a transitional provisions empowering the President to make Rules which has the force of law relating to the matters covered in article 133 until appropriate legislature on the subject is made. The President has power to promulgate Rules and until the powers conferred under article 133 are exercised, the President can amend the Rules...... Mahfuza Akhter Shimul =VS=Delwar Hossain, [5 LM (AD) 120] 

Article 133

The writ-petitioner invoked writ juris- diction under Article 102(2)(b)(ii) of the Constitution by way of quo-warranto challenging the appointment of writ respondent No.5 Kazi Habibul Awal, Ad- ditional Secretary, Legislative Drafting Wing of the Ministry of Law, Justice and Parliamentary Affairs as the Secre- tary-in-charge of the Ministry and rule nisi was issued to show cause how and under what authority he was holding the said office of the Secretary-in-charge. Government of Bangladesh vs. Md. Aftabuddin (Retired District and Ses- sions Judge) (Md. Abdul Matin J) (Civil) 7 ADC 91

Article 135(1)

The protection under Article 135(1) of the Constitution and such protection cannot be taken away either by the Parliament in its statute making power or by the President in his Rule making power. The Constitutional guarantee given under Article 135 of the Constitution cannot be whittled down by designating an officer lower in rank than the one who was the appointing authority at the time of the appointment. .(16)

29 BLC (AD) (2024) 56

Article 140

Selection of candidates has been done in violation of Bangladesh Civil Service Recruitment Rules, 1981 as amended in 1988. Because the Bangladesh public Service Commission is a self Governed constitutional body and that the PSC recommended the present petitioners as per provision of law as incorporated in Article 140 of the Constitution of the People's Republic of Bangladesh; that the learned judges, without having found any illegality or violation of any law of rules in the process of the inter- view held by the PSC in the instant case, erred in law in setting aside the PSC'S recommendation which was accepted by the Government and issued the appointment letters; that the impugned order has resulted in miscarriage of justice and the petitioners have been prejudiced thereby."Dr. Mohammad Sarwar Ramiz and others-vs-Dr. Shyam Sundar Kundu (FCPS) and others (Amirul Kabir Chowdhury J) (Civil) 3ADC 908

Article 142- The power to amend the Constitution is different from the power to amend ordinary law. The distinction between the legislative power and the constituent power is vital in a rigid Constitution. When Parliament is engaged in the amending process it is not legislative, it is exercising a particular power bestowed upon it sui generis by the amending clause in the Constitution. (Hasan Foez Siddique, J)....Government of Bangladesh -VS- Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 145(2)- The official liquidator executed the agreement on behalf of the government in exercise of the executive authority of the Republic under article 145(2) of the constitution. Even if Durnity Daman Commission finds irregularity in the process of transfer of the mills, the writ petitioner's right cannot be affected, inasmuch as, the government has accepted two installments towards the consideration and handed over possession of the mills and that the government has not taken any disciplinary action against the officials who were involved in the process of transfer of the mills. ..... Bangladesh VS Refat Garments Limited, [3 LM (AD) 104]

Article 145-ACC is legally empowered under section 17 to conduct any enquiry, the subject matter of which may fall under Article 145 of the Constitution, so long as it attracts criminal liability and ACC acts within the ambit of law. Begum Khaleda Zia vs. Anti-Corruption Commission, 68 DLR 1 

Article 147- The removal of Judges being part and parcel of their terms of service, the amendment is in violation of article 147 of the Constitution. (Muhammad Imman Ali, J)... Government of Bangladesh VS= Asaduzzaman Siddiqui, [6 LM (AD) 272]

Article 148-Secretaries of the Government are directed to submit reports as to the steps taken pursuant to directions of the Court as to enforce- ment of laws involving juvenile accused. State vs Deputy Commissioner Satkhira 45 DLR 643.

Article 152- There are set of customs and usages which are being followed by the Judges in this subcontinent for over a century and those customs and usages have the force of law. Thus, if a Judge violates any of the established conduct, usage or custom, he will not only commit gross- misconduct but also violates his oath, the Constitution and the law. Idrisur Rahman (Md.) VS Syed Shahidur Rahman, [4 LM (AD) 231]

Article 152- Judging by any definition of the term "law" as propounded by the jurists and also by the definition of "law" as enshrined in Article 152, these instruments are orders having the force of law even though these were not made under any formal statute of formally published in the gazette. For practical purposes those instruments regulate the conduct and livelihood of a vast number of people involved in the Madrasha Education and the related matters. Mozahidul Islam vs Bangladesh, 68 DLR 234