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101

Civil Petition /2023
(Civil Petition 657/2023)

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Uploaded on : 19-JUL-23
From : COURT NO. 1

Bangladesh Fire Service and Civil Defence, Fire Service and Civil Defence Directorate, 38-46 Kazi Alauddin Road, Fulbaria, Dhaka-1000, Represented by its Director General
VS
The Committee for Protection of Monthon Pond, Rangpur, Repr. by its Member Palash Kanti Nag, son of Babul Nag, of Village-Rothbari, Rangpur Sadar, District- Rangpur and others

Upon a plain reading of section 6(Uma) it is clear that notwithstanding anything contained in any other law for the time being in force, the nature of a waterbody cannot be changed under any other circumstances by earth filling except for indispensable national interest (অপরিহার্য জাতীয় স্বার্থ)।

102

Civil Appeal /2019
(From the judgment and order dated 13.03.2017 passed by this Division in Civil Petition for Leave to Appeal No.2767 of 2015.)

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Uploaded on : 12-JUL-23
From : COURT NO. 2

Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Land, Bangladesh Secretariat, Dhaka and others.
-Versus-
Md. Abdul Malek and others.

We are of the view that 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.

103

Civil Appeal /2008
(From the judgment and order dated 17.08.2004 passed by the High Court Division in Writ Petition No.4132 of 2002)

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Uploaded on : 12-JUL-23
From : COURT NO. 2

The Chairman, National Board of Revenue, Dhaka and others.
-Versus-
Rahim Steels Mills Co.(Pvt) Ltd. and another.

The encashment certificates only shows that the transactions regarding encashment of foreign currencies have been reported to Bangladesh Bank which in our opinion cannot be treated as repatriation through Bangladesh Bank. It may be mentioned here that the writ-respondent no.5 vide memo dated 11.04.2002 asked the petitioners to furnish the documentary evidence that the foreign currencies against the ‘deemed export’ in question was repatriated through Bangladesh Bank. But the petitioners only submitted encashment certificates to the respondent no.5 vide letter dated 15.04.2002. There are no proceed realization certificates in support of said ‘deemed export’ which amply proves that the claimed ‘deemed export’ do not come within the ambit of Section 3(2) of the VAT Act, 1991 and Rule 31 of the VAT Rules, 1991. In the aforesaid transactions the respondent-writ petitioners as a local supplier supplied the construction materials to the local contractors on receipt of foreign currencies locally as per instructions of the locally floated tender. The goods were not shipped abroad against master Letter of Credit or any internationally accepted export documents. Consequently, the respondents failed to submit any proceed realization certificates against the claimed ‘deemed export’. Mere encashment certificate cannot be treated as proceed realization certificate.

104

Civil Appeal /2019
(CIVIL APPEAL NO.18 OF 2019 WITH CIVIL APPEAL NOS.19-20 OF 2019
From the judgment and order dated 17.08.2017 passed by the High Court Division in Writ Petition Nos.11992-11994 of 2016)

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Uploaded on : 18-JUN-23
From : COURT NO. 2

Bangladesh Rural Electrification Board (BREB)
Vs.
Bangladesh Energy Regulatory Commission (BERC), represented by the Chairman, Dhaka and others

While considering the question whether the arbitral procedure prescribed in the agreement for reference to a named arbitrator can be ignored, it is also necessary to keep in view of Section 43 of the Arbitration Act, 2001 which provides that an arbitral award may be set aside by the court if the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. The legislative intent is that the parties should abide by the terms of the arbitration agreement if the arbitration agreement provides for arbitration by a named Arbitrator, the court should normally give effect to the provisions of the arbitration agreement.

105

Criminal Petition /2023
(CRIMINAL PETITION FOR LEAVE TO APPEAL NOS.55-58 OF 2023.
From the judgment and orders dated 25.10.2022 passed by the High Court Division in Criminal Miscellaneous Case Nos.55586, 55583, 55584 and 55585 of 2022)

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Uploaded on : 13-JUN-23
From : COURT NO. 2

Sajjad Hossain
Vs.
Md. Lutful Hasan and another

It is pertinent here to mention that Section 561A of the Code of Criminal Procedure do not empower the High Court Division to grant bail to a convict prisoner for the purpose of filing appeal. Though the power of the High Court Division under Section 561A i.e. the inherent power is very wide but it is a Rule of practise that it will only be exercised in exceptional circumstances and the main goal and purpose of this special extraordinary power is to save the litigant people from the agony of the abuse of the process of the court and also is intended to do substantial justice and at the same time it cannot be invoked in respect of any matter covered by the specific provision of the Code of Criminal Procedure, so that the ordinary course of justice be obstructed or diverted.

106

Civil Appeal /2012
(CIVIL APPEAL NOS.135-137 OF 2012 AND 443 OF 2016 WITH CIVIL PETITION FOR LEAVE TO APPEAL NOS.1386, 1936 and 1128 OF 2012, 377 OF 2013 AND 1637 OF 2014.
From the judgment and orders dated 13.02.2012, 13.05.2012, 14.08.2012 and 20.04.2014 passed by the High Court Division in Writ Petition Nos.8904 of 2011, 157 of 2012, 9263 of 2011 and 14864 of 2012 respectively)

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Uploaded on : 13-JUN-23
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Grameenphone Ltd., represented by its Deputy General Manager and others
Vs.
Bangladesh Telecommunication Regulatory Commission, represented by its Chairman, IEB Bhaban, Ramna, Dhaka-1000 and others

We consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provided economic and social services to human society and are considered valuable in their relatively unmodified, natural form. A natural resource’s value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely form their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest.

107

Civil Petition /2022
(From the judgment and order dated 08.09.2021 passed by the High Court Division in Writ Petition No.10952 of 2019)

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Uploaded on : 13-JUN-23
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Director General, Bangladesh Agricultural Research Institute (BARI), Joydebpur, Gazipur
Vs
Md. Mustafizur Rahman, Joint Director (Administration)(current charge), (Dismissed), Bangladesh Agricultural Research Institute (BARI), Joydebpur, Gazipur and attached to Bangladesh Agricultural Research Council (BARC), Farmgate, Dhaka and others

We are in agreement with the findings of the High Court Division that the impugned order of dismissal cannot be treated as ‘Board’ decision due to quorum non-judice.

108

Civil Appeal /2009
(From the judgment and order dated 06.05.2007 passed by the High Court Division in Writ Petition No.4509 of 2003)

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Uploaded on : 13-JUN-23
From : COURT NO. 2

National Board of Revenue, represented by its Chairman, Segunbagicha, Dhaka and others
Vs
Basic Dredging Company Limited, represented by its Managing director Mr. Md. Saiful Islam, 18 Kamal Ataturk Avenue, Banani, Dhaka and another

By now it is settled that when there is a statutory provision to avail the forum of an appeal against an adjudication order passed by the concern Customs Official then the judicial review under Article 102(2) of the Constitution bypassing the appellate forum created under the law is not maintainable.

109

Criminal Review Petition /2022

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Uploaded on : 01-JUN-23
From : COURT NO. 1

The State Vs Nurul Amin Baitha and another

Converting the conviction under Section 11(Ka) read with Section 30 of the Nari o Shishu Nirjatan Daman Ain, 2000” (The Ain), the special law to one under section 302/34 of the Penal Code.

110

Criminal Appeal(A) /2019
(With Crl.A.No.59-61 of 2019 arising out of Crl.Review Petitions No.68,73,74 and 89 of 2017 corresponding to Crl. A.No.31-33 and 35 of 2013/)

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Uploaded on : 25-MAY-23
From : COURT NO. 3

Shamsu Habib alias Biddut and three others vs. The State

 The prosecution has miserably failed to prove a compact chain of circumstances starting from the calling for the victim by accused Biddut after 4:30 p.m. until throwing of the dead body of the victim by the side of the railway line at 3:00 a.m. on 28.01.1997, to connect the accused persons with the killing of the victim and in every chain of circumstances, there was break in the link of the other chain and accordingly the prosecution failed to prove the charge brought against the accused persons either under Sections 302/34 or 302/109 of the Penal Code. Consequently, the accused persons are entitled to be acquitted of the charge brought against them.  It is established principle of law that a judgment of the apex Court is final on both questions of law and of fact. It is precedent for itself and for all the Courts subordinate to it and the finality of the judgment cannot be impinged on. In the case in hand leave was granted in Review Petitions and thereafter criminal appeals were filed which are now under consideration in the instant judgment. As per provision of Article 105 of the Constitution of the People’s Republic of Bangladesh and Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this Division is competent enough to reconsider or interfere with its earlier decision to prevent abuse of its process and to cure gross miscarriage of justice.  It has already been elaborately discussed in previous paragraphs how the prosecution miserably failed to prove its case. Due to the above stated facts, in our opinion, the conclusion reached by the Courts below as well as this Division by majority was not correct. On the basis of such scanty evidence, it should not have upheld the order of conviction of the appellants. The trial Court as well as the High Court Division and this Division by majority committed illegality misreading the evidence. In view of the reasons stated hereinabove, we are of the view that the judgment and order dated 10.09.2014 passed by this Division with majority view dismissing the appeals and thereby convicting the accused-appellants was not justified and, therefore, the same is reviewed and all the criminal appeals arose from the Criminal Review Petitions No.68, 73,74 and 89 of 2017are allowed.

111

Civil Appeal /2018
(WITH CIVIL PETITION FOR LEAVE TO APPEAL NOS.722-733/17, 767- 779/17, 780-782/17, 568/17, 580/17, 587/17, 825-827/17, 979-982/17, 984/17, 1421-1422/17, 1532-1534/17, 1620/17, 1300/17, 1322-1324/17, 1333-1337/17, 1384/17, 1395-1402/17, 4339- 4350/17, 2034-2041/17, 1163-1165/17, 1177- 1178/17, 783/17, 1500/17, 2849/17, 902-904/17, 851- 852/17, 876/17, 2111- 2112/17, 1838/17, 3826/17 AND 2934-2935/17.)

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Uploaded on : 16-MAY-23
From : JUDGE-IN-CHAMBER

S. Alam Beg Manufacturing Mills Ltd., Chattogram represented by its Director and others
Vs.
Government of Bangladesh, represented by the Secretary, Ministry of Finance, Internal Resources Division, Bangladesh Secretariat, Dhaka and others.

Taxation is an unilateral decision of the parliament in exercise of its sovereign power. Every legislation is enacted with the object of public benefit and taxation law operates as tool of raising revenue to meet the expenditure of the Government as well as contributes in the development of the country which ultimately enjoyed by the mass people of country. Thus the intention of the legislature in enacting taxation law is to raise the revenue of the Government for public benefit. Furthermore, what is best in the national economy and in what manner and to what extent the fiscal policy is formulated, offered and implemented is ultimately to be decided by the Parliament.
..... Thus, from Section 2 (34) of the Ordinance, 1984 it transpires that the term “any income”, “profits or gains” as well as “loss of such income, profits or gains” are included in the definition of income. Therefore, as the term “loss of income or gain” is within the purview of income as such there is no reason to hold that the gross receipts is not within the purview of income as mentioned in Section 2 (34) of the Ordinance, 1984. ......
There are two methods of calculation of tax i.e. regular method of taxation and alternative method of taxation. Section 16 CCC is an alternative method of taxation under the caption “Charge of minimum tax”. In order to prevent tax evasion, defeat “Zero taxation”, decrease tax inequality among corporate taxpayers (some company pay tax and others do not, there becomes an uneven tax treatment amongst them) as well as to ensure revenue adequacy, the concept of Alternative Minimum Tax (AMT) has been introduced in many countries around the world where taxpayer requires to pay a minimum amount of tax if tax liability under regular method falls short of a minimum amount of tax. Bangladesh as a member of global tax community adopt this modern concept of charging alternative minimum tax. In calculating tax liability under Section 16 CCC any tax paid in advance, at source or under Section 74 is duly given credit. Moreover, when any income of a taxpayer falls under the ambit of final settlement of tax liability under Section 82 C that income does not come within Section 16 CCC. So, there is no space for double taxation under impugned Section 16 CCC. The ultimate object and purpose of the taxation law is to increase revenue for smooth running of the economy as well as to prevent tax evasion as such Section 16 CCC is fully consistent with the purpose and objective of the Ordinance, 1984 and also in line with globally recognized tax practice.

112

Civil Appeal /2018
(Civil Appeal No.159 of 2018 with Civil Appeal Nos.160-171 of 2018 (From the judgment and order dated 07.02.2017 and 08.02.2017 in Writ Petition Nos. 4947 of 2014, 5885 of 2014, 6213 of 2014, 6274 of 2014, 8659 of 2014, 12028 of 2014, 487 of 2015, 774 of 2015, 7566 of 2015, 7291 of 2014, 13305 of 2016, 15927 of 2016, and 85 of 2017))

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Uploaded on : 10-MAY-23
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Bangladesh Council of Scientific and Industrial Research (BCSIR), represented by its Chairman
vs
G.R.M. Astaq Mohal Khan and others

It should be borne in mind that a cardinal principle of construction is that it must be presumed that the legislature does not use any word unnecessarily or without any meaning or purpose. As such no word in a statue should be treated as surplusage or redundant.

113

Civil Appeal /2019
(From the judgment and order dated the 17th day of July, 2018 passed by the High Court Division in Writ Petition No.5549 of 2018)

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Uploaded on : 10-MAY-23
From : COURT NO. 1

The Office of the Controller General of Accounts, CGA Building Shegunbagicha, Dhaka and others
vs
Omar Faruque and others

If we consider the present case in the light of the above proposition of law then we have no hesitation to come to a definite conclusion that no legal right has been created in favour of the writ petitioners to get appointment though they are the successful candidates.

114

Civil Appeal /2019
((From the judgment and order dated the 1st November, 2018 passed by a Division Bench of the High Court Division in Writ Petition No.10919 of 2011))

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Uploaded on : 10-MAY-23
From : COURT NO. 1

Government of Bangladesh and others
vs
Kazi Mofizul Haque and others

Upon consideration of the facts and circumstance of the present case coupled with the above propositions of law, we have no hesitation to hold that the High Court Division committed grave error in making the Rule absolute directing the writ-respondents-appellants to give promotion to the writ-petitioners-respondents amending the relevant Rules with retrospective effect within a period of 60 (sixty) days from the date of receipt of the judgment and also pay them the arrear salary and other benefits.

115

Criminal Appeal(A) /2017
((From the judgment and order dated 9th of March, 2016 passed by the High Court Division in Criminal Appeal No.6297 of 2013))

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Uploaded on : 02-APR-23
From : COURT NO. 1

Mohammad Khorshed Alam alias Md. Khorshed Alam
Vs
The State and another

Since the complainant by swear in an affidavit before the Tribunal asserted that the concerned police officer refused to accept her complaint and the Tribunal has also been satisfied about the said assertion, in our view, there is no legal necessity to make an inquiry into the said issue afresh, i.e. whether the complainant went to the police station and he/she was refused by the police before submitting the complaint before the Tribunal. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . The word “অভিযোগ অনুসন্ধানের জন্য” as contemplated in section 27 (1 ka) is very significant. It means that an inquiry should be done on the allegations brought against an accused. It does not mean that inquiry should be done to ascertain whether the complainant went to the police station and he/she was refused by the police.

116

Criminal Appeal(A) /2015
(From the judgment and order dated 8th January,2012 passed by a Division Bench of the High Court Division in Criminal Appeal No.2185 of 2006 along with Death Reference No.43 of 2006 with Jail Appeal Nos.407, 408, 409, 410, 411 and 410, 411 and 412 of 2006)

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Uploaded on : 22-MAR-23
From : COURT NO. 1

Milon @ Md. Milon and another
Vs.
The State

In this particular case, P.Ws-3,5,6 and 7 in their respective dispositions and cross-examinations categorically stated that in presence of the village peoples Rabiul alias Habul confessed his guilt in commission of the alleged offence. Further, statement of Rabiul was recorded in tape recorder cassette, material exhibit-VI. Defence did not put any suggestion to the said witnesses to the effect that at the time of making such statement by Rabiul, police personnel were also present. If we consider the evidence of said P.Ws coupled with the proposition of law as enunciated in the case of Nausher Ali Sarder and others vs. The State, then we are of the opinion that the extra judicial confession made by appellant-Rabiul has got evidentiary value and we can safely rely on the same in awarding conviction of its maker.

117

Civil Appeal /2003
((From the judgment and order dated 04.07.2000 passed by the High Court Division in Civil Revision No.2049 of 1999)

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Uploaded on : 21-MAR-23
From : COURT NO. 2

Shishubar Dhali being dead his hears: 1(a) Mrigangka Mohan Dhali and others
Vs.
Chitta Ranjan Mondol and others

The guiding ‘Principle of Law of Inheritance’ under the Dayabhaga School of Law, which prevails in Bangladesh, is the doctrine of religious efficacy. Religious efficacy means capacity to confer special benefit upon the deceased person. Succession is the mode of devolution of property under the Dayabhaga system. The general Rule of inheritance is that once a property is vested upon any one, it will not be divested. But in case of Hindu woman, getting limited ownership in the property is contradictory to this general Rule as the property will revert back to the heir of the owner. Only in case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property. It is to be noted that succession of the ‘Stridhan property’ is held absolutely by a female. The word Stridhan is derived from the term ‘Stri’ which means woman and ‘Dhan’ which means property. A Hindu woman may acquire property from various sources. She may acquire property through gifts, inheritance as well as her own skill and labor.

118

Civil Petition /2018
(From the judgment and order dated the 14h day of November, 2017 passed by the High Court Division in Writ Petition No.10484 of 2011)

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Uploaded on : 12-MAR-23
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Md. Saifuzzaman Chowdhury
-Vs-
Secretary, Ministry of Law, Justice and Parliamentary Affairs and others

The impugned proceeding against the petitioner has been initiated by the Collector and Deputy Commissioner, Chattogram within its jurisdiction, i.e. in view of the relevant provision of Stamp Act,1899 and thus, there is neither violation of the Registration Act nor the Stamp Act.

119

Civil Appeal /2019
(CIVIL APPEAL NO.336 OF 2019 (Arising out of C.P.No.1351 of 2018))

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Uploaded on : 12-MAR-23
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Bangladesh represented by the Secretary, Ministry of Education, Bangladesh Secretariat, Dhaka and others
-Vs-
Char Elisha Junior High School and others r Elisha

Further, since no vested and legal right have been created in favour of the writ petitioners, thus there is no scope to hold that the petitioners have legitimate expectation to be enlisted in MPO.

120

Civil Petition /2018
(CIVIL PETITION FOR LEAVE TO APPEAL NO.4683 OF 2018)

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Uploaded on : 28-FEB-23
From : JUDGE-IN-CHAMBER

Chairman, Rural Electrification Board, Khilkhet, Dhaka
Vs
S.M. Sanoar Hossain and others

The principal of natural justice demands that authority concerned is required to evaluate/assess the reply judiciously and then take a decision.

121

Civil Petition /2022
(CIVIL PETITION FOR LEAVE TO APPEAL NO.720 OF 2022)

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Uploaded on : 28-FEB-23
From : JUDGE-IN-CHAMBER

Midland Bank Limited
Vs
Nasima Aktar and others

In view of the liabilities as fixed in the above law, the guarantor judgment-debtor has no authority to file any application before the Artha Rin Adalat to set aside the order amending the schedule of the property in execution case as it has been done at the instance of principal judgment-debtor.

122

Civil Appeal /2008
(CIVIL APPEAL NO.35 OF 2008)

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Uploaded on : 28-FEB-23
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Kabir Ahmed being dead his heirs 1(a) Mahmuda Khatun being dead her heirs: Noor Mohammad and others
Vs
Mahohar Ali and others

it is a cardinal principle of law that plaintiff has to prove his own case and he cannot be entitled to get a decree on the weakness of the defendant(s), if any. The burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary.

123

Civil Appeal /2008
(From the judgment and order dated 19.07.2005 passed by the High Court Division in Writ Petition No.101 of 1998)

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Uploaded on : 16-FEB-23
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The Commissioner of Customs, VAT and Excise, Agrabad Commercial Area Chattogram and others
=Vs=
Abul Khair Steel Mills Limited (U-2), BSCIC Road, Charipur, Feni.

There seems no plausible way to conclude that Section 79 is referring to Ex-Bond document and consequently it is clear that the value of goods and the rate of duty shall be the one prevailing at the time of presenting the In-Bond Bill of Entry and not the Ex-Bond Bill of Entry document and once the In-Bond Bill of Entry is submitted any subsequent development in case of determination of value or any redetermination of rate of duty or taxes, shall not affect the value of the concern goods or the rate of duty for the purpose of payment of duties and charges.

124

Civil Appeal /2017
(With Civil Appeal 363/2017
(From the judgment and order dated 23rd day of July, 2014 passed by the High Court Division in Civil Revision No. 2326 of 2012))

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Uploaded on : 14-FEB-23
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Jotilal Chowdhury and others
Meena Rani Chowdhury and others
=vs=
Suruchi Bala Singha alias Ambika Devi and others
Manju Rani Roy and others

Once property vests or confers upon the deity by dedication, gift or otherwise, the deity acquires its right, title and interest.
The Shebait had/has no authority to alienate the property of a deity. Moreover, the title which has been conferred upon the deities cannot be affected by such acts on the part of Shebait.

125

Civil Appeal /2018
(Judgment)

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Uploaded on : 02-FEB-23
From : COURT NO. 3

Director General of Ansar and VDP, Head Quarter, Dhaka vs.Bangladesh, represented by the Secretary, Public Security Division, Dhaka and others

 Literally, the disembodiment of Ansars does not necessarily mean dismissal. Nowhere in the Ansars Act, 1948 as well as the Ansars Rules, 1948 it was mentioned how and when Ansars will be disembodied and what protection will be given to the Ansars in case of disembodiment. Therefore, in absence of clear provision as to the disembodiment of Ansars it is palpably clear that there appears no question of violation of legal rights vis-a-vis fundamental rights while disembodying them.  Although the Writ Petitions are maintainable in the cases in hand, but the writ petitioners-respondents have no enforceable fundamental or legal right inasmuch as they have already been disembodied and their training certificates have been cancelled. The Writ Petitions should have been disposed of instead of making the Rules absolute.  It is manifest that the writ petitioners-respondents have not acquired any legal right after the disembodiment and as such they are not entitled to be reinstated in the service. The High Court Division committed illegality by making the Rules absolute

126

Criminal Petition /2022
(From the judgment and order dated 06.01.2022 passed by the High Court Division in Criminal Miscellaneous Case No.35188 of 2020)

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Uploaded on : 29-JAN-23
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The State, represented by the Deputy Commissioner, Chattogram
Vs.
Md. Mir Ibrahim @ Md. Ibrahim @ Md. Ibrahim Mir

Whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under section 496 of the Code of Criminal Procedure without more ado, but if the offence is non- bailable further consideration will arise and the court will decide the question of bail in light of those consideration such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tempered with, the larger interest of the public or the state and similar other considerations. It is true that under section 498 of the Code of Criminal Procedure, the power of the High Court Division in the matter of granting bail is very wide, even though the offence is non-bailable, but various considerations as mentioned above have to be taken into consideration before bail is granted in a non-bailable offence. .....
the present case is not a case where discretion should have been exercised infavour of the accused- respondent because of the seriousness and gravity of the offence which is obviously connected with the safety and security of the State, as such we are not inclined to allow the bail

127

Civil Appeal /2011
(Judgment)

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Bangladesh, represented by the Cabinet Secretary, Bangladesh Secretariat, Dhaka vs. Md. Abdul Alim and others

The employer is legally authorized to assess the competency of an employee during the period of probation. Simultaneously, the employer is entitled to terminate the service of the employee during the probation period due to unsatisfactory performance. We are also of the view that whether a termination order is simpliciter or stigmatic will be ascertained based on the factual matrix of each case. On plain reading of the termination order of the respondents it appears that the same is ex-facie not stigmatic. It simply terminates the service of the respondents as their service was found not satisfactory. The respondents could not bring any materials on record from which it could be manifested that there was allegation of misconduct against them and an inquiry was held behind their back in pursuant to which they had been terminated from service during the probation period. Therefore, we are of the view that the Election Commission Secretariat was in right stand to arrange for a suitability test during the probation period of the respondents and on being unsuccessful in the suitability test the respondents had been terminated from service which we hold to termination simpliciter not stigmatic.

128

Criminal Petition /2019
(Judgment)

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Uploaded on : 03-JAN-23
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Mirza Abbas Uddin Ahmed, son of late Abdur Razzak vs. The State and another

Section 26 of the Anti-Corruption Commission Act, 2004 envisages the provision for issuance of notice, holding preliminary inquiry by the Anti-Corruption Commission in order to ascertain the wealth of a person while Section 27(1) of the ACC Act, 2004 lays down the provision regarding the commission of offence where the wealth of a person is found not in proportionate to his known sources of income. On the other hand, the Income Tax Ordinance, 1984 is enacted for realization of income tax and to prevent the evasion of income tax. Sections 165 and 166 of the Income Tax Ordinance, 1984 are penal sections in respect of making false statement in any verification in any return or any other document and concealment of income. The offences under Sections 26 and 27(1) of the ACC Act, 2004 and Sections 165 and 166 of the Income Tax Ordinance, 1984 are completely separate and distinct and one is not dependant on others. Therefore, the present case under Sections 26 and 27(1) of the ACC Act, 2004 shall proceed independently. Although the petitioner was earlier acquitted in a case under Sections 165 and 166 of the Income Tax Ordinance, 1984 it will not put any embargo on the trial of the present case.

129

Civil Appeal /2017
(From the judgment and order dated 31.01.2016 passed by the High Court Division in Writ Petition No.4546 of 2014)

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Uploaded on : 21-DEC-22
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Most. Tahmina Khatun
Vs.
Md. Lutfor Rahman Mollah and others.

It is the settled principle of law laid down by the Apex Court of Various Jurisdictions including this Division by a long line of decisions that the question of jurisdiction cannot be conferred to a court if it is found that the court has no jurisdiction to try the suit/case as the case may be.

130

Criminal Petition /2019
(From the judgment and order dated 04.12.2018 passed by the High Court Division in Criminal Revision No.1689 of 2016)

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Uploaded on : 21-DEC-22
From : COURT NO. 1

Md. Helal Uddin
Vs.
The State

It is now well settled that the remand orders are not to be made as a matter of course. The High court Division as a revisional court is required to appreciate properly the relevance of the evidence on record before making such order of remand....
The High Court Division as a revisional court ought to have disposed of the criminal revision on the basis of the evidence already on record. The order of rehearing by the appellate court below is found to be uncalled for, particularly after a decade.

131

Civil Petition /2017
(From the judgment and order dated 08.07.2015 passed by the High Court Division in Civil Revision No.1130 of 2014)

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

Mrs. Rahima Begum
=vs=
Md. Zahidul Islam being dead his heirs:-1(a) Kazi Tamjidul Islam and others

It is true that a practice has been grown up specially by the landed property-owners that after even prior to the constructing of super markets in urban areas, without executing proper deeds, they use to realize a significant sum of currency from the traders as advance/salami/possession sale and evict them after expiry of the tenure and sometimes enhance the monthly rent, though such process and transactions are unauthorized and unlawful.
These advance or salami/possession sale is nothing but `premium’. Under the Registration Act, 1908, the transfer of possessory right is required to be registered. High Court Division committed significant legal error of law by declaring possessory right of Defendant Respondent in the suit shop without any registered sale deed or Contract and any proper suit to that effect in a suit for eviction of tenant.
The question as to whether the Defendant have paid the money for the consideration of purchase of the possessory right cannot be determined devoid of appreciating the fact without a suit for eviction.

132

Civil Appeal /2009
(From the judgment and order dated 02.08.2007 passed by the High Court Division in Civil Revision No.4949 of 2001)

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

Moslehuddin Ahmed
=vs=
Abdul Gafur being dead his heirs :1(a) Nuruzzaman (Rotan)and others

We have anxiously thought as regard the application of Article 104 of the Constitution, as prayed by the learned Advocate for the respondents, nevertheless, we are unable to apply this article because of legal impediment as it appears in this matter. We have already viewed that the decree holder in filing both the execution cases admittedly were delayed due to his own fault. Therefore, other side appellant has accrued a valuable right in accordance with law due to fault and latches of the decree holder the predecessors of the respondent No.1(a)-1(g) in not executing the decree in time according to law. However, the plea taken by the decree holder according to us unsuccessful.
Therefore, our considered view is that in violation of the specific provision of law, one side cannot get the complete justice depriving the other side from his valuable right obtained under the law.

133

Civil Appeal /2009
(From the judgment and order dated 09.09.2007 passed by the High Court Division in Civil Revision No.4540 of 2007)

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

Government of Bangladesh, Represented by the Deputy Commissioner, Natore and others
=vs=
Most. Majeda Beowa and others

As the L.A. case records are public documents, mere the facts that they were not submitted and exhibited in the courts below that cannot be a ground for defeating public interest and justice.
mere record of rights does not create a title. As such, merely entries of the predecessors of the plaintiffs in the S.A and R.S. Khatians without any documents of title or ownership did not create of the respondents-plaintiffs title over the suit land. And the mere presumption arisen in its support, by the said S.A. and R.S. record of rights fails as its correctness is successfully impugned by the presence of the L.A. case records.

134

Civil Appeal /2008
(From the judgment and order dated 30.03.2005 passed by the High Court Division in Writ Petition No.1268 of 2003)

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

The Thana Nirbahi Officer, Kaukhali Thana, Police Station-Kaukhali, District-Pirojpur and others
=vs=
Maulana A.B.M. Mahiuddin

A service holder may suspend for alleged allegation, however, such order of suspension cannot continue for unlimited period. The concerned authority must conclude the inquiry within stipulated time as per the concerned law.
Impugned suspension order was passed by one Mr Sudhangsu Shekhar Bishwas as the UNO of Kawkhali, Pirojpur, not as Ex-officio Chairman of the Madrasa. Law does not confer adequate power to one or any UNO as his/her original designation to issue such orders. Only Chairman of the Madrasa Managing Committee can do so.

135

Civil Appeal /2015
(From the judgment and order dated 16.02.2010 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No.201 of 2006)

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

The Government of Bangladesh
=vs=
Sree Kazal Chandra Sutradhar

According to section 6 of the Police Officer (Special provisions) Ordinance, 1976, we are of the view that the provisions of the said Ordinance does not contemplate formal inquiry to be held before imposing penalty under the said Ordinance save and except follow the provisions as expressly provides in the said Police Ordinance.
The procedure of enquiry against the police officer should be conducted according to the provisions of the Ordinance, 1976 (Special Provisions), the Administrative Tribunal and Administrative Appellate Tribunal will not sit as a Court of appeal against domestic enquiry unless its decision is tainted with illegality, malafide and it acted without jurisdiction.

136

Civil Appeal /2008
(From the judgment and order dated 08.05.2006 passed by the High Court Division in Civil Revision No.2495 of 1990)

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Uploaded on : 20-DEC-22
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Bhadu Pramanik, son of Late Badal Pramanik being dead his legal heirs are-1.Md. Paran Ali Pramanik and others
=vs=
Md. Abbas Ali Pramanik

It is a settled principle of law that the plaintiff if attempts to establish assert, claim or plead something who must prove it appropriately. The same cannot be assumed from the defects or lacking of the defendant side. Here, in this case the plaintiff-respondent must prove his case solely and wholly and he is not allowed to stand to have a decree upon the lacuna of the defendant-appellant.
High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record.

137

Civil Appeal /2008
(From the judgment and order dated 20.03.2006 passed by the High Court Division in Writ Petition No.7901 of 2002)

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Uploaded on : 20-DEC-22
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Bangladesh Gayan-O-Srijonshil Prokashak Samity
=vs=
Bangladesh Publisher and Book Seller Association and others

As the concerned notices were not published in any national daily newspapers recognized by persons of ordinary prudence and the aforesaid objection was not considered, these vitiated the whole process of licensing. Because, here licensing authority did not comply with the procedure established by law, did not act in accordance with the provisions of law, acted malafide and violated principles of natural justice. If it’s so, then established principle of law is that even if there is a ouster/non-obstante clause in any law, yet court has ample jurisdiction to review judicially whether the authority followed established principle of law or not.

138

Civil Appeal /2015
(With Civil Review Petition No.94 of 2014 With Civil Petition for leave to Appeal No.1311 of 2010 (From the judgment and order dated 02.03.2014 passed by this Division in Civil Petition for Leave to Appeal No.1029 of 2010))

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Uploaded on : 20-DEC-22
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Government of Bangladesh, represented by the Deputy Commissioner, Chittagong and others
=vs=
Abdul Salam Chowdhury being dead his heirs:1)(a) Fatema Begum and others

The High Court Division as well as this Division inaccurately decided that after the enforcement of the State Acquisition of Tenancy Act, 1950, there established a land lord and tenant relationship between the Government and the plaintiffs. For the establishment of a land lord and tenant nexus linking the Government and the ancestor of the plaintiffs there should exists a lawful affiliation between them prior to the enactment. In our opinion the plaintiffs’ side was not able to set up such a tie.

139

Civil Appeal /2014
(with Civil Petition for Leave to Appeal No.1994 OF 2022 (From the judgment and order dated 09.12.2009 passed by the High Court Division in Writ Petition No.10404 of 2006))

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Uploaded on : 20-DEC-22
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Md. Mustafizur RahmanMohibur Rab Chowdhury and others

Wherefrom it is apparent that the same property has already been leased out for 99 years to the appellant of this civil appeal. However, the High Court Division in its judgment without passing any order in respect of the above memo directed the concerned authority to dispose of the petition which was filed by the writ petitioner-respondent, rather, passed the impugned order which is glaring instance of misuse of the judicial review. Such judgment, therefore, cannot be upheld by this Division, rather, such direction should be scraped for future safety of the acquired landed property.

140

Civil Appeal /2010
(From the judgment and order dated 11.05.2009 passed by the High Court Division in Civil Revision No.57 of 2003)

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Uploaded on : 20-DEC-22
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Shahin Mia
=vs=
Parul Begum and others

It is curtail principle of law that only in revisional jurisdiction, the High Court Division can interfere, if it is found that the Court of appeal below committed any error of law or procedural mistake and such errors have affected the merit of the case. The plaintiffs must prove his plaint case to succeed in the suit. The weakness of the defence’s case cannot be the ground to succeed or to prove the plaint case.

141

Civil Appeal /2008
(From the order dated 05.08.2007 passed by the Appellate Division in Civil Petition for Leave to Appeal No.1615 of 2004)

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Uploaded on : 20-DEC-22
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People’s Republic of Bangladesh represented by the Deputy Commissioner, Gazipur and others
=vs=
Md. Idris Ali and others

After passing the standing order High Court Division became functus officio, as such, cannot recall its order lawfully.
Though there was nothing legally incorrect in the impugned judgments and orders of both of the Divisions of the Supreme Court of Bangladesh, nevertheless, it is easily understandable that justice has been defeated in this whole process...we decide to condone the delay of 11 days and consider the Civil Petition for Leave to Appeal at least for doing complete justice in exercise of its power under Article 104 of the Constitution. The earlier judgment of Appellate Division is reviewed.

142

Civil Appeal /2007
(and Civil Appeal 112/2007 (From the judgment and order dated 14.05.2005 passed by the High Court Division in Civil Revision Nos.1649 and 1650 of 2012))

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Uploaded on : 20-DEC-22
From : JUDGE-IN-CHAMBER

Md. Mortuz Ali Karar (In both the cases)
vs
Khatiza Banu and others (In both the cases)

As in the present case both the recitals and the operative part are clear, but they are inconsistent with each other, hence, the operative part is to be preferred.

143

Civil Appeal /2014
(Judgment)

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Uploaded on : 20-DEC-22
From : COURT NO. 3

Sadharan Bima Corporation and another Vs Md. Rafiqul Islam and others

If the authority thinks to impose major penalty on a delinquent employee then the authority at first shall frame charge under Sub-Probidhan (1)(Ka) of Probidhan 41 of Sadharan Bima Corporation Karmachari Probidhanmala, 1992 against the delinquent employee stating the allegations and the facts or information on the basis of which such allegations were brought and the copy of charge as well as other documents shall be supplied to the delinquent employee. It is palpably transparent from record of the case in hand that in taking action against the writ petitioner-respondent No.1 inflicting major punishment the authority issued show cause notice to him on 24.08.1999, but charge was framed on 28.11.1999, which is in clear violation of Probidhan 41 of Probidhanmala, 1992 which vitiates the entire enquiry proceeding against the writ petitioner. It also divulges from the record that the writ petitioner has also not been supplied with the copy of charge. From the inquiry report it is seen that no oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross-examination of the prosecution witnesses by the writ petitioner-respondent No.1 has arisen at all. Thus, the inquiry proceeding in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law.

144

Civil Petition /2014
(From the judgment and order dated 19.05.2014 passed by the High Court Division in Civil Revision No.3437 of 2012)

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Uploaded on : 11-DEC-22
From : COURT NO. 1 (Supplementary)

Terab Ali and others
Vs
Syed Ullah and others

Case laws of any jurisdiction is applicable in our jurisdiction subject to the provisions of Article 111 read with Article 149 of the Constitution of Bangladesh, 1972 only and anything beyond that periphery, specially from Subordinate Judiciary, could be termed as judicial adventurism. Case laws declared by any superior court other than Bangladesh including Pakistan after 25 th March, 1971 (that is after independence of Bangladesh) and that of India after 13 th August, 1947 (that is after partition of Pakistan) 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. Hence, both the Division of the Supreme Court of Bangladesh can discuss and cite foreign case laws in reaching any decision on some points of law applicable in Bangladesh. However, no reliance ipso facto could be placed upon those precedents in any way as was relied upon by the learned Senior Assistant Judge, Sylhet. Moreover, as the Judges of Sub-ordinate 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 relying on foreign case law, not covered under the constitutional scheme framed through Article 111 and Article 149 of the Constitution of Bangladesh as discussed above. Moreover, as per the provisions of the Law Reports Act, 1875 and practices of the Court, using of reference books other than recognized law reports, is not appropriate.

145

Criminal Appeal(A) /2016

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Uploaded on : 07-DEC-22
From : COURT NO. 1

The State
-Vs-
Md. Ramizuddin and another

From the judgment and order dated the 5th August,2009 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.7970 of 2007.

146

Civil Appeal /2018
(Civil Appeal 79/2018)

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Uploaded on : 06-DEC-22
From : COURT NO. 1

Manager, Bhawal Raj Court of Wards Estate Vs Nahar Haider Nannu being dead his legal heirs: Aisha Akhter Parvin and others

147

Civil Petition /2018
(With CIVIL PETITION FOR LEAVE TO APPEAL NO.61 OF 2022.
From the judgment and orders dated 01.11.2017 and 13.12.2018 passed by the High Court Division in Writ Petition Nos.4780 and 3452 of 2016.)

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Uploaded on : 06-DEC-22
From : COURT NO. 1

Probashi Kallyan Bank, represented by its Managing Director, Dhaka
Vs.
Md. Bazlur Rashid and others

Admittedly, the respondents herein as Interne Officers are serving in the Bank for a long period. It also appears that though the respondents initially appointed as an Interne Officers for 03(three) months but the Bank authority retained them after expiry of the Interne period. The petitioners are working as Interne Officers till now. The Bank through its conduct assured the petitioners that they would be regularized/absorbed in the regular setup of the Bank which creates a legitimate expectation that they would be made permanent in the Bank.

148

Criminal Petition /2022
(From the judgment and order dated 16.02.2022 passed by the High Court Division in Criminal Appeal No.7403 of 2021)

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Uploaded on : 05-DEC-22
From : COURT NO. 1

The State
Vs
Omit Hasan @ Azmir

“…an order of stay takes effect from the moment it is passed and the knowledge of the court or others concerned is immaterial. However, 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.
The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way such as lawyer’s certificate with affidavits. In the case of a stay order, it prohibits courts below from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it not only acts illegally, and all proceedings taken after the knowledge of the order but also all proceedings taken even without knowledge too would be a nullity in toto.
As Officer of the Court it is the foremost duty of the learned Counsel engaged to inform the same in the courts below each and every occasion needed.
Before passing any order it is the duty of the High Court Division by applying its ordinary prudence to enquire from the learned Counsels concerned, whether there pending any prohibitory order from the Apex Court in the matters concerned. As Officer of the Court, the learned Advocates pressing the petition too is duty bound to communicate any such information before the Court and be restrained themselves from lodging or hearing any such petitions.”
“It is a general Rule of custom or usage practiced in the Appellate Division of the Supreme Court of Bangladesh and followed through the years that in any pending petition, if any application filed within stipulated time for extension of order of stay passed by the learned Judge-in-Chamber, be regarded as continuation of the stay order passed earlier. It was recognized in view of the long standing convention and judicial discipline and maintained as good as a legal provision unfailingly by all concerned. The same view was postulated and enshrined through a written Office Order of the Appellate Division of the Supreme Court of Bangladesh bearing Memo No.এফ-১-৪৭/০৫ এসসি(এডি) dated 17-10-2006.” “There is a concept in the arena of customary international law which is known as “opinio juris” (Latin) means “opinion that an act is necessary by rule of law” which requires that the custom or practice be accepted as law or followed from a sense of legal obligation. This element is necessary to establish a legally binding practice or custom. “Opinio juris” denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. If any such customs or usages or practices pass the test of “opinio juris” for a reasonable time then it is recognized as a legal provision. The same test and standard too are applied in the laws of the states since immemorial in countless ramifications. Regarding the above mentioned practice or custom it is evident that a sense on behalf of the stakeholders established that they are bound to the law in question. Hence, it could easily be said that it passed the test of “opinio juris” in its arena, as such, attained the strength of law.”

149

Civil Appeal /2007
(Civil Appeal No.216 of 2007 (From the judgment and order dated 8th May, 2005 passed by a Division Bench of the High Court Division in Writ Petition No.3961 of 2001) /)

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Uploaded on : 01-DEC-22
From : COURT NO. 1

Azizul Haque Sarker alias Azizul being dead his heirs, I(a) Koduanu Khatun and others
-vs-
Md. Wazed Ali @ Wazed Ali and others

In the instant case the respondents were not heard by the Additional Deputy Commissioner (Revenue) Sirajgonj before cancellation of registered settlement deeds and there was no prove that by practicing fraud the respondents managed to get the lease deed and they have violated the terms and conditions of the lease deed. Further, the ADC (Revenue) had no authority to cancel the registered settlement deed duly executed by the Deputy Commissioner.

150

Criminal Appeal(A) /2019
(Judgment)

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Uploaded on : 30-NOV-22
From : COURT NO. 3

Barrister Muhammad Jamiruddin Sircar vs The State and another

 It is unerringly transparent that the appellant had no mens rea in providing approval to the medical bill submitted by the then Chief Whip and as such the appellant cannot be prosecuted.  In compliance with the letter dated 13th March, 2013 under memo No.10.00.0000.128.002.06.2013-355 issued by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs the Chief Justice of Bangladesh framed Guidelines for Supreme Court Judges for Claiming Medical Expenses Incurred Home and Abroad, 2015 which was adopted in the Full Court Meeting and thus the said guideline has got force of law. All the Judges of the Supreme Court and all other concerned of the State functionaries are bound to follow this guideline in respect of payment of medical expenses incurred at Home and Abroad.  The Speaker being head of the Legislature is also no exception in enjoying approval of the medical expenses abroad vis-à-vis other two heads of organs that is the Executive and Judiciary. To that end we are of the view that the government may consider to delegate the power to the Speaker of approval of reimbursement of the foreign medical expenses for the Speaker, Deputy Speaker, Chief Whip and Whip to the Speaker of the Jatiya Sangsad.