সতর্কীকরণ! কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে কেস রেফারেন্স ওয়েবসাইট কোন নিশ্চয়তা প্রদান করে না। কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Bar on Writ Petitions Due to Alternative Legal Remedy
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]
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]
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.
There is no dispute as to the proposition of law expounded in the 3(three) cases referred to by Mr. Mahmudul Islam that a writ petition can be filed under article 102(i) of the Constitution in order to en- force a fundamental right and that in spite of the availability of the alternative remedy a person can invoke the writ jurisdiction in an appropriate case. The above legal proposition has been ex- pounded more explicitly by this Divi- sion in the case of Dhaka Warehouse Ltd. and another -vs- Assistant Collec- tor of Customs and others, 11BLD(AD) 327. G. M. Salehuddin Ahmed vs. Artha Rin Adalat No.1, Dhaka (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 271
The right of judicial review under article 102(1) is a guaranteed one which is embodied in the constitution itself, but if that right is not guaranteed, even if a citizen's fundamental right is infringed, he will be left with no remedy at all. True, article 102(1) has not been retained in the fundamental rights chapter as has been kept in India but in view of article 44(1), it is akin to fundamental right. Similarly the observation that the enforcement of fundamental right is available only when 'no other equally efficacious remedy is provided by law' is also not a correct view, inasmuch as, whenever there is infringement of fundamental rights, any person can move the High Court Division for judicial review of the administrative action under Article 102(1). The question of equally efficacious remedy arises only when it will exercise power under article 102(2) i.e. writ of certiorari and other writs mentioned in sub-clauses (a) and (b) of clause (2). If there is an alternative remedy, the High Court Division's power is debarred. It is only in exceptional cases, it can exercise this power...... Government of Bangladesh -VS- Sontosh Kumar Shaha, [4 LM (AD) 143]
All writ petitioners had absconded before they moved the High Court Division. There is no positive statement as to whether they appeared before the Special Judge before moving the petitions. In presence of alternative remedy, a writ petition for quashing the proceeding is not maintainable. This court cannot take different view. The accused if feel aggrieved by the initiation of the proceedings, must surrender to the jurisdiction of the court before seeking any remedy......Anti-Corruption Commission =VS= Tasmima Hossain, [3 LM (AD) 9]
Judicial review is not available for quashing a criminal proceeding in presence of alternative remedy. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. ......Anti-Corruption Commission =VS= Tasmima Hossain, [3 LM (AD) 9]
Arbitration clause being available in the agreement but invoking write jurisdiction under the circumstances environment may judicial review even there is an alternative remedy available The arbitration clause being available in the agreement, invoking writ jurisdiction by the respondent company under the present circumstances as stated above is not a bar as any action which is arbitrary, malafide and beyond the principle of natural justice can be the subject matter of the judicial review even there is an alternative remedy available as decided in a good number of cases by the Appellate Division. Chief Engineer, REB VS Biswajit Ganguly, [3 LM (AD) 192]
Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra- ordinary jurisdiction In proceedings under Article 102 of the Constitution it is not open to the High Court Division to hold an elaborate enquiry into disputed and complicated questions of fact. The High Court Division would only interfere with the proceeding of a criminal court if it is found that such proceeding is without jurisdiction and if there is no other efficacious relief provided in law against such proceeding or the vires of the law basing on which the proceeding initiated is challenged. Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra-ordinary jurisdiction. Such powers are to be exercised in rare and exceptional cases. It is true that existence of alternative remedy is not an absolute bar to entertain writ petition by the High Court Division but to declare a criminal proceeding illegal it is to be established that the Court acted without jurisdiction or the vires of the law is in question. In this case no such strong ground has been made out. ..... Begum Khaleda Zia VS Anti-Corruption Commission, [4 LM (AD) 89]
Section 32 of the Customs Act, clearly specifies the service of prior show cause notice before making the additional demand and in the aforesaid cases where demands have been made without any prior show cause notice pursuant to 32 of the Customs Act, 1969 the notices of demand are clelarly illegal. Even though section 83A does not speak of the requirement of any prior show cause notice the rules of Natural Justice require a prior show cause notice to be issued.
Notices issued pursuant to section 83A of the Customs Act, 1969 demanding additional duties and charges are illegal for having been in breach of the rules of Natural Justice and the demand having been made without any prior show cause notice.
The High Court Division held that section 83A clearly states that a subsequent demand for additional duties may be made upon amendment of assessment and in such case 30 days time have to be given to the importer. In almost all the cases before the High Court Division when demands have been made as such pursuant to section 83A there is no mention of assessment by amendment. A simple statement that on audit it has been apparent that the goods were released by short levied customs duties and as such the importer is required to pay a certain amount is not enough. The respondents Customs authorities were required to amend the assessment in the appropriate way and inform the petitioners about the short levy. Not only that in many of the cases it appears that the petitioner importers were given 5 days time or 7 days time to pay the demanded amount which is another breach of the provision of law which says that 30 days time must be given. For that reason also the notices containing the impugned demands under section 83A of the Customs Act, 1969 are illegal. As regards the submissions of the learned Deputy Attorney General that the petitioners have alternative remedy of Appeal and not having resorted to the same the Rules are not maintainable is misconceived. Error of law is apparent on the face of record and the impugned notice are wholly without jurisdiction. There are many decisions of the High Court Division that when the illegality is apparent on the face of record and the respondents performing the function of the republic have acted totally without jurisdiction, a citizen can come to this Court under Article 102 of the Constitution for appropriate remedy and the instant cases come under that category. Since the notices of demand are all illegal and without lawful authority for not being preceded by a show cause notice the High Court Division does not wish to go into the merits of the case. The petitioners however should not be allowed to profit from this technicality of law and as such the respondents Customs authorities are at liberty to issue fresh de- mand upon the petitioners by issuing appropriate show cause notices. Before parting with this judgment the High Court Division puts on record its disappointment and displeasure with Customs the respondents authorities for issuing these notices upon the importers/ petitioners in spite of repeated decisions and judgments of the High Court Division to the contrary. The High Court Division takes strong objection to this practice and hope this culture of impunity will stop or the High Court Division will be constrained to pass appropriate penal orders against those responsible. With the aforesaid observations these Rules are made absolute and the impugned notices are hereby declared to have been passed without lawful authority and of no legal effect. Md. Musa Bhuiyan Vs. Commissioner of Customs, Dhaka and others (Spl. Original) 19 ALR (HCD) 1-9
The registration of the respondent No. 4 (CBA of BIWTA) was given by the Directorate of Labour, without jurisdiction as well as wholly without lawful authority and therefore, the alternative remedy provided in the statute does not preclude the High Court Division from exercise its jurisdiction under Article 102 of the Constitution and as such the writ petition is maintainable.
The High Court Division held that the writ petition is maintainable although the remedies by way of filing an application to the Director of Labour or then to the Labour Court provided in section 190 of the Act, 2006 were not availed of. In view of the above, the High Court Division is in respectful agreement with the principle laid down in the decisions of the Appellate Division, reported in 1981 BLD (AD) 450 and 56 DLR(AD) 175. On the other hand, the decision as have been referred to by the learned Advocate for the respondent No. 4 propounded the principle that the Writ Petition is not maintainable if alternative efficacious remedy is provided in the statute are not applicable in the present facts and circumstances of the case in hand. Section 190 of the Act, 2006 provides for remedy on certain facts and circumstances. But in the instant case, the High Court Division has found that the registration of the respondent No. 4 was void abinitio which requires no further formal cancellation. In the aforesaid facts and circumstances, the High Court Division finds merit in the Rules and as such, the Rule and the Supplementary Rule should be made absolute. Accordingly, the Rule and the Supplementary Rule are made absolute. Md. Mujibar Rahman and 2 (two) others Vs. Bangladesh representted by the Secretary, Ministry of Labour and 3 (three) others (Spl.Original) 16 ALR (HCD) 335-339
Whether the Writ Petitions is maintainable, though there is an alternative remedy under section 561A of the Code of Criminal Procedure
Any decision passed by the Appellate Division is binding upon the High Court Division in view of the mandate of Article 111 of the Constitution.
The High Court Division held that the decision reported in 67 DLR (AD) 137 is the latest decision of the Appellate Division on this issue. So the law declared by the Appellate Division in that decision is binding upon the High Court Division in view of the mandate of Article 111 of the Constitution. Furthermore, in the decision in the case of Golam Nabi and another - Vs. Anti-Corruption Commission and others reported in 65 DLR (HCD) 181, it has been unmistakably held that the decision reported in 64 DLR (AD) 14 has ousted the jurisdiction of the writ Court to quash the proceedings of a criminal case unless the 'vires' of any law is found to have been challenged. Coming back to the instant cases, indisputably the petitioner has not challenged the vires of the law involved therein. Given this scenario, it is crystal clear that the petitioner could have sought necessary remedies against the proceedings of the cases pending against him which are available in the relevant statute, that is to say, the Code of Criminal Procedure, 1898. Munzurul Ahsan Munshi - Vs. Ministry of Home Affairs, Bangladesh Secretariat, Dhaka-1000 and others (Spl. Original) 16 ALR (HCD) 1-8
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