Home : Supreme Court of Bangladesh

Serial No.	Name of the Parties, Citation and Key Words	Summary of the case	Key Ratio
1.	Aziz Ara Rahman Vs. RAJUK and others (Obaidul Hassan, CJ) 19 SCOB [2024] AD 1 Key words: Principle of res judicata; Article 111 of the Constitution; disputed question of fact; trespasser	In a previous Civil Petition for Leave to Appeal it was held that disputed plot was not situated in C.S. and S.A. Plot as claimed by the respondent No.5 and the said plot had not been released from acquisition made in L.A. Case No.10/63-64. Despite this fact, respondent No.5, filed a title suit for declaration of title of the disputed plot in his favor. On the other hand, the appellant as writ petitioner filed a Writ Petition before the High Court Division seeking direction upon the writ respondents to deliver physical possession of the disputed plot to her upon evicting illegal occupant therefrom and to execute and register the lease deed in respect of the said plot in her favor. However, the Writ Petition was discharged. The appellant then filed a CP against the decision of the High Court Division, which ultimately turned into this Civil Appeal. The Appellate Division taking into consideration the previous decision of it in the same matter held that the title suit filed by the respondent no. 5 is barred by the principle of res judicata and as such, the High Court Division on the face of the aforesaid decision of the Apex Court was in breach of Article 111 of the Constitution when it discharged the Writ Petition filed by the appellant.	It is our considered view that the High Court Division committed illegality in passing the impugned judgment without taking into consideration that earlier in Writ Petitions No.11099 of 2006 and 3030 of 2005 the High Court Division found that the respondent No.5 has no right and title over the disputed plot. But in the case in hand, the High Court Division while dealing with the Writ Petition filed by the appellant held relying on the claim of the respondent No.5 to the effect that since the case involves the disputed question of facts as to the title over the disputed plot the same should be settled in Title Suit No.373 of 2005 filed by the respondent No.5 and as such the Writ Petition is not maintainable. The above findings of the High Court Division is absolutely unwarranted inasmuch as the fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata. ...(Para 18)
2.	Md. Taherul Islam Vs. The Speaker Bangladesh Jatiya Sangsad & ors (Obaidul Hassan, J) 19 SCOB [2024] AD 10 Key Words: Article 123(3); Article 148(3) and 72(3) of the Constitution of the Peoples’ Republic of Bangladesh, Deeming Clause, Parliamentary Election, Member of Parliament, Legal Fiction	In this case petitioner challenged the holding of office by taking oath by the Members of Parliament who were elected for the 11th National Parliament before expiration of the term of the previous Parliament. The petitioner alleged that by taking oath before dissolution of the 10th National Parliament, the MPs had violated the Article 123(3) read with Article 148(3) and 72(3) of the Constitution of the Peoples’ Republic of Bangladesh. The High Court Division summarily rejected the writ petition on the ground that Article 148(3) of the Constitution had been incorporated to maintain continuity of running the government for the best interest of democracy. A “deeming clause” exists under Article 148(3) is to facilitate the continuity of the government. It was also held that though, upon taking oath, the MPs in reality had not assumed office of members of parliament, yet they had assumed office by way of legal fiction created by the Constitution. Therefore, taking oath by the MPs before dissolution of previous parliament was not illegal. The Appellate Division, concurring with the finding reached at by the High Court Division (which has been reported in 19 SCOB [2024] HCD 66) dismissed the Civil Petition.	Article 56(3) and 148 (3) of the Constitution of the Peoples’ Republic of Bangladesh: Once the names of elected members of Parliament returned by the Election Commission in the official gazette, it becomes necessary for them to take oath and this necessity arises because of the relevant provisions of the Constitution in order to form a new government. The intention of the legislature is transparent while going through Article 56(3) of the Constitution whereby the President is to have commanded majority support of the members of parliament, as Prime Minister of the country. Therefore, for such appointment of an MP as Prime Minister, the first sitting of the Parliament is not necessary to be held. Rather, it is the discretion of the Hon’ble President to appoint a member as Prime Minister from among the elected members of parliament commanding the support of the majority. In the given circumstances, it is clear that latent intent of the legislature for incorporating the deeming clause under Article 148(3) of the Constitution is to maintain the continuity of the government. ...(Para 39)
3.	A.B.M. Altaf Hossain & ors Vs. Bangladesh & ors (Md. Nuruzzaman, J; Obaidul Hassan, J; Borhanuddin, J; M. Enayetur Rahim, J; Md. Ashfaqul Islam, J; Md. Abu Zafor Siddique, J; Jahangir Hossain, J ) 19 SCOB [2024] AD 21 Key Words: Article 48(3), 52, 55, 95 and 98 of the Constitution of Bangladesh; Interpretation of the Constitution; Consultation; Appointment of the Judges of the High Court Division; Antecedents; Judicial Independence; Basic Structure; 10 Judges Case	In these cases, non-appointment of two Additional Judges of the High Court Division as Judge of the High Court Division under article 95 of the Constitution despite positive recommendation from the Chief Justice of Bangladesh was challenged. After hearing, Appellate Division gave split verdicts on various issues. Consequently, by majority decision, the Appellate Division held that the concerned authority may consider appointing Mr. A.B.M. Altaf Hossain as the permanent Judge of the High Court Division.	We, therefore, sum up as under: (a) The Chief Justice of Bangladesh in exercise of his functions as consultee shall take aid from the other senior Judges of the Supreme Court at least with two senior most Judges of the Supreme Court before giving his opinion or recommendation in the form of consultation to the President. (b) In the light of the observations made in S.P. Gupta, Ten Judges’ cases, and the article mentioned in paragraph-17, it is evident that in case of appointment of a Judge of the Supreme Court under Articles 95 and 98 of the Constitution the opinion of the Chief Justice regarding legal acumen and professional suitability of a person is to be considered while the opinion of the Prime Minister regarding the antecedents of a person is also to be considered. If divergent opinions from either side of the two functionaries of the state occur the President is not empowered to appoint that person as Judge. The opinion of any functionary will not get primacy over the others. (c) If any bad antecedent or disqualification is found against any Additional Judge, who is under consideration of the Chief Justice to be recommended for appointment under the provision of Article 95 of the Constitution, it is obligatory for the executive to bring the matter to the notice of the Chief Justice prior to the consultation process starts. (d) After recommendation is made by the Chief Justice to the President, even if, at that stage it is revealed that antecedent of any recommended candidate is not conducive to appoint him as a Judge under Article 95 of the Constitution, it shall be obligatory for the executive to send the file of that Additional Judge or the person, back to the Chief Justice for his knowledge, so that the Chief Justice can review his earlier recommendation regarding the such candidate. (e) If the Chief Justice again (2nd time) recommends the same Judge/person for appointment under Article 95, whose antecedent has been placed before him for reconsideration, this Court expects that, the President of the Republic would show due respect to the latest opinion of the Chief Justice. ... (Para 311)
4.	Grameenphone Ltd & ors Vs. BTRC & Ors (Borhanuddin, J) 19 SCOB [2024] AD 96 Key Words: Sub-Section 3(Ga) of Section 3, 5(4), Sub-Section 4 of Section 6, Section 6 (4KaKa), Section 9(Uma), 15 (4) of the VAT Act, 1991; Rule 18(Ka) and 18(Uma) of the VAT Rules, 1991; Cellular Mobile Phone Operator Regulatory and Licensing Guidelines, 2011; Market Competition Factor (MCF);	In these appeals and civil petitions the issues involved for determination, among others, were whether the claim of the BTRC for additional spectrum fee based on Market Competition Factor (MCF) is lawful; whether the Cellular Mobile Phone Operator can withhold the VAT collected at source and then pay the same directly to Government exchequer and VAT paid by the Cellular Mobile Phone Operator is rebatable or not; and whether BTRC requires a compulsory registration under the VAT Act. Contrary to some findings of the High Court Division, the Appellate Division analyzing relevant laws, rules and guidelines held that (1) in accordance with clause-12(viii) of the Cellular Mobile Phone Operator Regulatory and Licensing Guidelines, 2011 BTRC reserves the right to make any change in the charges or levies from time to time and the mobile phone operators are bound to abide by such decision and as such, additional spectrum fee based on Market Competition Factor (MCF) is lawful; (2) the Cellular Mobile Phone Operator cannot withhold the VAT collected at source, the BTRC is to collect VAT from the Cellular Mobile Phone Operators and then deposit it to the Government exchequer and VAT paid by the cellular mobile companies on the spectrum fees and the license fees are not rebatable; and (3) under clause-7 (Ab¨vb¨ †mev)(N) of the second schedule of the VAT Act, 1991 compulsory VAT registration is not necessary for BTRC.	Section 9(1)(Uma) of the VAT Act, 1991: VAT paid by the cellular mobile companies on the spectrum fees and the license fees are not rebatable: It is clear from Section 9(1)(Uma) of the VAT Act, 1991 that ‘spectrum’ comes within the definition of infrastructure (AeKvVv‡gv) and thus VAT paid by the cellular mobile companies on the spectrum fees and the license fees are not rebatable. Said provisions of Section 9 does not require the infrastructure to be tangible as such the argument placed by the learned Advocate for the cellular phone companies that infrastructure cannot intangible is not correct inasmuch as spectrum provided to the cellular mobile phone companies are a range of wave of radio frequencies which is uniquely distinguishable by intangible boundaries that is why spectrum allotted to one cellular phone company cannot be used by others. The cellular phone companies cannot provide service without allocation of spectrum. ...(Para 53) Clause-7 (Ab¨vb¨ †mev)(N) of the second schedule of the VAT Act, 1991: Compulsory VAT registration is not necessary for BTRC: Government, local authorities, the organization of local authority or organization those who are working for the Government are exempted from payment of VAT. The NBR, postal department, Bangladesh Bank, City Corporation and land revenue authority although engaged in realization of VAT through deduction at source bearing no registration under VAT Act, 1991 and thus the BTRC being Government organization is also exempted from payment of VAT under Clause-7 (Ab¨vb¨ †mev)(N) of the second schedule of the VAT Act, 1991 and compulsory VAT registration is not necessary for BTRC. ...(Para 56)
5.	Bangladesh & anr Vs. Nazrul Islam Biswas (M. Enayetur Rahim, J) 19 SCOB [2024] AD 119 Key Words: Administrative Tribunal; Administrative Appellate Tribunal; Current Charge; Section 4 (3) (b) of the Government Servants (Discipline and Appeal) Rules, 1985	In this case the finding of the Administrative Appellate Tribunal that the impugned penalty imposed on the respondent was illegal as because that was imposed by the Director General who was, admittedly, holding current charge and was not the appointing authority, was challenged. Appellate Division analyzing the relevant provisions of law came to the conclusion that when current charge was given for unlimited period it was to be presumed that he had been given all the administrative and financial power of the institution. Consequently, Appellate Division set aside the judgment and order of the Administrative Appellate Tribunal.	When current charge is given for unlimited period it is to be presumed that he has given all the administrative and financial power of the institution: The current charge given to a particular officer by an official notification has got some force of law, and when it is given for unlimited period it is to be presumed that he has given all the administrative and financial power of the institution. The current charge given by a gazette notification cannot be termed or treated that the concerned officer will perform only day to day routine work, rather on the strength of such notification he has been vested all the administrative and financial power to be done in accordance with rules of business. Said current charge cannot be equated as a stop gap arrangement. ...(Para 19)
6.	Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors (Md. Ashfaqul Islam, J) 19 SCOB [2024] AD 125 Key Words: Section 161, 162 and 163 of the Penal Code; statutory public authority; Article 152 of the Constitution; Res judicata; Section 23 of the Contract Act; No one can benefit from one's own wrong; Corruption; proceeds of crime; public policy; Article 31, 51, 53 and 54 of the UNCAC;	In this case the Appellate Division found that the writ respondents No.4 Niko Resources (Bangladesh) Limited and No.5 Niko Resources Limited of Canada had set up a corrupt scheme to illegally obtain gas exploration rights in Bangladesh. Contracts were procured by corruption and therefore those were void ab initio. The Court also found that the rights and assets of the writ respondent No.5 in Block 9 PSC, had also been obtained through corrupt scheme. Consequently, dismissing the petition the Appellate Division held that the High Court Division had rightly declared the Joint Venture Agreement and the Gas Purchase and Sale Agreement to be without lawful authority and of no legal effect and had rightly attached the assets of writ respondent Nos.4 and 5.	Section 162 and 163 of the Penal Code: We note that section 162 of the Penal Code deals with "Taking gratification, in order, by corrupt or illegal means, to influence public servant". Under section 162 of the Penal Code private individuals, such as Mr. Salim Bhuiyan or Mr. Giasuddin Al Mamoon, taking bribes to influence a public servant by corruption or illegal means is a crime. Similarly, section 163 of the Penal Code deals with "Taking gratification, for exercise of personal influence with public servant". Taking or giving gratification to private individuals for their personal influence with public servants is also a crime. Thus, under the laws of Bangladesh there is no requirement that only direct payments to a Government official can constitute corruption. It would be sufficient if the gratification is extracted on a promise of exercise of personal influence with an official, to bring the offence within the mischief of this section 163 of the Penal Code. Proof of actual exercise of personal influence with an official is not necessary. ...(Para 49)
7.	Shahin Vs. The State (Md. Abu Zafor Siddique, J) 19 SCOB [2024] AD 148 Key Words: Section 302/34 of the Penal Code; dying declaration; motive; physical and mental capacity to make dying declaration;	In this case the trial Court found all the accused including the appellant guilty of the offence charged under sections 302/34 of the Penal Code and sentenced each of them including the appellant to death. The High Court Division, however, modified the sentence of the convict-appellant Shahin altering the death sentence to imprisonment for life. On the other hand, analyzing the evidence on record the Appellate Division found that the prosecution had failed to prove the allegations against the appellant beyond reasonable doubt and as such, allowing the appeal acquitted him.	Only to prove the motive is not sufficient where the subsequent act relating to murder is doubtful relying on which the High Court Division has given the benefit of doubt to the other accused except the present appellant. The only reason that he took the money from the deceased cannot be the sole basis for his conviction in a murder case. According to the prosecution all the F.I.R. named accused had actively participated in the murder of the deceased Biplob and as many as eleven severe bleeding injuries were found on his body. So, only the appellant can't be held liable for committing the murder when the High Court Division has ignored the dying declaration taking into consideration the incapacity of the deceased at that moment and the contradictory statement of the vital PWs as well on the basis of which the trial Court had convicted and awarded death sentence to all of them. ...(Para 21)
8.	Bangladesh & ors Vs. Golam Mustafa (Jahangir Hossain, J) 19 SCOB [2024] AD 155 Key Words: Legitimate expectation; work order; Article 102 of the Constitution; Dalilpatra	In this case Hakkani Publishers moved the High Court Division claiming that the Ministry of Information issued work order to supply 2317 sets of the h¡wm¡cnl ü¡d£ea¡ k¤Ül c¢mmfœ [15 Volumes] but later did not pay the bill. However, it transpires that no work order was given to the publisher. The Appellate Division found that different correspondences took place between and among different ministries about the purchase of 2317 sets of the Dalilpatra without due process of tender. It then held that inter-ministry correspondences regarding buying of additional sets of Dalilpatra without tender do not tantamount to any binding agreement between the instant appellants and the respondent and as such, the appellants are under no obligation to buy any book from the respondent. The Court also held that legitimate expectation cannot be based on departmental note as it was seen that the letters communicated among the ministries, were internal correspondences.	Article 102 of the Constitution: Mere correspondence in the office of ministries concerned, does not fulfil any requirement to make a statutory contract or contract entered into by the Government in the capacity as sovereign, the relief sought by way of writ jurisdiction in the present case is not sustainable. The High Court Division cannot exercise its power conferred under Article 102 of the Constitution where the desire of buying and selling books without tender between the appellants and the present respondent is of inter-ministerial correspondences in nature. Apart from this, without tender and legal approval from the concerned authority, the proposal for buying additional 2317 sets of Dalilpatra would be an act of criminal offence that was realized later by the offices of ministries concerned and subsequently, it had to cancel for avoiding illegality in purchasing additional books in question. Such act of illegal attempt cannot be justified invoking Article 102 of the Constitution in the form of judicial review. ... (Para 21)