Code of Civil Procedure
Code of Civil Procedure (V of 1908)
Order XXXVIII, rule 8
Where special statutory remedy is available then such remedy, as a matter of course, must be availed of first. Remedy being available to the petitioner under the Code, any application under the writ jurisdiction is not maintainable. Petitioner has remedy under Order XXXVIII, rule 8 of the CPC against the attachment order, therefore, the writ petition is hit by the doctrine of exhaustion. [73 DLR 150]
Hosne Ara Begum vs Chairman, Court of Settlement. 46 DLR (AD) 9; Nitu Poddar vs Eastern Bank Ltd., 9 BLC 209; Mahmudul Haque (Md) vs Md Hedayetullah, 48 DLR (AD) 128; Mahmudul Haque (Md) vs Md Hedayetullah, 48 DLR (AD) 128; Mahmudul Haque (Md) vs Md Hedayetullah, 48 DLR (AD) 128 and Shamsunnahar Salam vs Md Wahidur Rahman, 51 DLR (AD) 232 ref.
In the case of Shamsunnahar Salam vs Md Wahidur Rahman, reported in 51 DLR (AD) 232 it was held that a writ Court cannot and should not decide any disputed question of fact which requires evidence to be taken for settlement. [73 DLR 153]
Constitution of Bangladesh, 1972
Articles 36 & 102(2)
Since the money laundering case against the petitioner and others is pending before the Chief Metropolitan Magistrate, the petitioner has an opportunity to file an application for release of the passport before that court. Since the petitioner has alternative remedy, the writ petition filed by the petitioner is not maintainable in the eye of law. [73 DLR 206]
Anti-Corruption Commission Act [V of 2004] Sections 26 and 27
No writ petition is maintainable for quashment of a criminal proceeding and secondly, a fugitive from justice cannot get any relief from court.
It is now settled that the offences under sec- tions 26 and 27 of the Ain are distinct and that for initiation of a proceeding under section 27, no notice is required to be served. [2021] 22 ALR (AD) 17
In respect of availability of alternative remedy as a bar in filing writ petition it is settled that, in a case where violation of law is challenged, taking recourse to writ jurisdiction is justified i.e. writ is maintainable. In the case of M. A. Haie Vs. Trading Corporation of Bangladesh reported in 40 DLR (AD)(1988) 206 and in the case of United Commercial Bank Karmachari Union Vs. S. M. Shafiul Azam and others reported in 11 BLD(AD)326, this principle has been well founded which is no longer a 'Res integra'. [31 ALR (2024) (AD) 12]
Maintainability of Writ
In the case of Md Mostafa Hossain vs Sikder Md Faruque reported in 40 DLR (AD) 10, similar question as to maintainability of the writ petition was raised on the facts that pursuant to Upazilla Parishad Election one Md Mostafa Hossain was elected which was challenged before the tribunal. Side by side SM Faruque filed a writ of quo warranto challenging the election itself and holding of the office of Chairman of Upazilla Parishad by him. In the said writ petition similar question was raised as to when the election was challenged in the Tribunal no writ can be filed challenging the election as well as holding of the office of the Chairman under the writ of quo warranto. This Division in that case held:
"It is rather unfortunate that conflicting arguments were adopted on behalf of the appellant in a matter involving substantive questions of law. Learned counsel next argued that an election petition being Election Petition No. 1 of 1985 has been filed before the Election Tribunal by one Nurul Huq, a contesting candidate raising the same questions including this question as to the returned candidate's qualification to hold the office of chairman and this matter is pending: since this question can be determined in that alternative forum, High Court Division's extra-ordinary jurisdiction to give the same remedy should not be exercised. We do not find this argument to be convincing, for the remedy by a quo warranto proceeding, in which the title to a public office may be questioned by any person, is independent of remedy available to a limited number of persons having personal grievances; moreover the election petition may be withdrawn by way of compromise on personal considerations." [73 DLR (AD) (2021) 107]
"the impugned order not in the capacity of Upazilla Nirhahi Officer, Brahmanpara, Comilla but in the capacity as President of the Governing Body of Shahedabad Islamia Senior Fazil Madrasa, Brahmanpara, Comilla and accordingly no writ does lie against the impugned order dated 28.5.2003 as the same has not been passed by any statu- tory body or local authority." .....(13)
Md. Saiful Islam vs. Md. Mustaq Alam (Obaidul Hassan J) (Civil) 20 ADC 574
"আপত্তিকৃত আদেশটি ব্রাহ্মণপাড়া, কুমিল্লার উপজেলা নির্বাহী কর্মকর্তা হিসেবে নয় বরং ব্রাহ্মণপাড়া, কুমিল্লার শাহেদাবাদ ইসলামিয়া সিনিয়র ফাজিল মাদ্রাসার গভর্নিং বডির সভাপতি হিসেবে প্রদান করা হয়েছে এবং সেই অনুযায়ী ২৮.৫.২০০৩ তারিখের আপত্তিকৃত আদেশটি যেহেতু কোনো বিধিবদ্ধ সংস্থা বা স্থানীয় কর্তৃপক্ষ কর্তৃক প্রদত্ত নয়, সেহেতু এটির বিরুদ্ধে কোনো রিট গ্রহণযোগ্য নয়।" .....(১৩)
মো. সাইফুল ইসলাম বনাম মো. মুস্তাক আলম (ওবায়দুল হাসান জে) (সিভিল) ২০ এডিসি ৫৭৪