| Serial
No. |
Name
of the Parties,
Citation and Key Words |
Summary
of the case |
Key
Ratio |
| 1. |
Mohammed
Faruk ul Azam
Vs.
The Election Commission
(Farah Mahbub, J)
17 SCOB [2023] HCD 1
Key Words:
Union Parishad Election; Affidavit and Declaration
in Election Application; Loan Defaulter; Guarantor
to a Defaulted Loan.
|
The petitioner,
who planned on running for office in the Union
Parishad, submitted his nomination for the chairmanship
before the pertaining Upazilla Returning Officer
with all the required documents, including a declaration
asserting that his candidacy was valid in accordance
with the provisions enshrined in sections 26(1)
and 26 (2) of the Øq¡e£u plL¡l (CE¢eue f¢loc)
BCe, 2009. After scrutinizing the petitioner's
nomination paper, the concerned Upazilla Returning
Officer annulled his candidacy solely on the premise
that his name was enlisted in the list of the
Bangladesh Bank's CIB (Credit Information Bureau)
as a guarantor of a loan amount that had been
defaulted upon. The petitioner being aggrieved
by such a decision brought an appeal before the
appropriate appellate authority in conformity
with Rule 15 of the Øq¡e£u plL¡l (CE¢eue f¢loc)
wewagvjv, 2010. The aforesaid authority dismissed
the appeal upon hearing it on the same grounds,
upholding the findings of the Upazilla Returning
Officer. The petitioner then preferred this application
to challenge that appellate decision. After hearing
from both sides, the court held that “a guarantor
to a defaulted loan amount is not disqualified
to contest the respective election”. The court
further observed that unlike Paurashava election,
Upazilla Parishad, City Corporation, and Parliamentary
elections, an aspiring candidate is not required
to disclose the necessary information by providing
‘qmge¡j¡’ in a prescribed form along with a declaration
(O¡oZ¡) when submitting a nomination paper (as
per section 26(3) of the Ain, 2009 read with Rule
12 of the Rules, 2010). Hence, the only condition
the candidate must meet to contest in the election
of the Union Parishad is to make a declaration
(O¡oZ¡) that he is competent to serve as Chairman
under the applicable laws. Giving ‘qmge¡j¡’ in
a prescribed manner is not thus mandated by law
for this election.
|
Affidavit
and declaration in the local government elections:
It is, however, the mandate of law that while
submitting nomination paper for contesting Paurashava
election, Upazilla Parishad election, City Corporation
election and Parliamentary election the candidate
is required to submit affidavit ‘qmge¡j¡’in
a prescribed from along with the nomination
paper containing detail information on his/her
educational qualification, his/her implication
in any criminal case, if there be any, occupation,
source of income, description of property owned
by him/her, including family members and loan
liability, if there be any, with declaration
that all information of the respective documents
so provided are correct and true to the best
of his knowledge. Conversely, in Union Parishad
election the candidate is relieved from making
such disclosure. The only requirement is that
vide Rule 12 of the Øq¡e£u plL¡l (CE¢eue f¢loc)
¢eh¡ÑQe ¢h¢dj¡m¡, 2010 (as amended in 2016)
the candidate is to give certificate “cÖZ¨qbcΔ
although vide Section 26(3) of the Ain, 2009
the candidate is required to submit an affidavit
‘qmge¡j¡’ along with the nomination paper declaring
that he is not disqualified vide Section 26(2)
to contest the respective election.
(Para-15, 16)
|
| 2. |
Civil
Miscellaneous No. 11 of 2022 (Reference)
(Sheikh Hassan Arif, J)
17 SCOB [2023] HCD 8
Key Words:
Reference under Section 113 read with Order
XLVI, rule 1 of the Code of Civil Procedure,
1908; Chittagong Hill Tracts Regulation, 1900;
Chittagong Hill-Tracts Regulation (Amendment)
Act, 2003; Civil Jurisdiction
|
Reference was
sent to the High Court Division by the Court of
Additional District Judge, Bandarban Hill District
in view of the provisions under Section 113 read
with Order XLVI, rule 1 of the Code of Civil Procedure,
1908 seeking opinion of the High Court Division
of the Supreme Court of Bangladesh on two legal
questions as regards interpretation of Section
6 of the Chittagong Hill-Tracts Regulation (Amendment)
Act, 2003 (Act No. 38 of 2003), namely, whether
the civil appeal cases pending before the Divisional
Commissioner, prior to the said amending Act coming
into force should be transferred to the Court
of District Judge of the respective Hill Districts,
and, if the same are so transferred, whether the
District Judge or the Additional District Judge
of the respective districts, as the case may be,
should dispose of the same. Examining the relevant
provisions of the Chittagong Hill Tracts Regulation,
1900 (Regulation No. I of 1900) and the Chittagong
Hill-Tracts Regulation (Amendment) Act, 2003 (Act
No. 38 of 2003) and considering the historic perspective
of the Hill Tracts Districts and opinions of the
amici curiae the High Court Division held that
it is clear from the text of the ‘special provision’
under Section 6 of the amending Act of 2003 that
the Legislature deliberately did not mention anything
about the pending civil appeals and the proceedings
of civil nature as was pending before the Divisional
Commissioner of Chattogram before the said amending
Act came into force and according to amended section
8 of the Regulation the District Judges have been
given appellate jurisdiction only against the
orders, judgments and decrees of the Joint District
Judges of the respective districts and not against
any order of the Deputy Commissioner of the district
concerned or any other officer. Therefore, the
High Court Division decided the answers to both
the aforesaid legal questions to be “IN THE NEGETIVE”
and ordered civil appeals and the proceedings
of civil nature pending before the Divisional
Commissioner and Additional Commissioners of Chattogram
not to be transferred to the District Judges of
the respective hill districts and, if the same
have in the meantime been transferred to the District
Judges concerned, the same should be returned
back immediately if the same have not been disposed
of yet. However, the High Court Division excepted
any such proceeding disposed of by the District
Judges and Additional District Judges from the
order treating those as past and closed matters.
|
Applicability
of the customary law of the land in Chittagong
Hill Tracts: Historically Chittagong Hill Tracts
area was governed by distinctive law and administrative
procedure. Particularly, in matters of civil disputes,
the customary law of the land in Chittagong Hill
Tracts area has always been made applicable. Such
historic recognition of customary law and non-application
of Code of Civil Procedure has again been recognized
by the Legislature by inserting sub-section (4)
in Section 8 of the said Regulation providing,
thereby, that the Joint District Judge, as Court
of original jurisdiction, shall try all civil
cases in accordance with the existing laws, customs
and usages of the district concerned. Not only
that, the Legislature, by this amending Act, has
also kept the cases arising out of family laws
and other customary laws of the tribes out of
the jurisdiction of the Joint District Judges
and, in respect of those matters, the jurisdiction
of the Mouza Headmen and Chief Circles concerned
of the triable people have been recognized....(Para
4.15)
Presumption as to awareness of the Legislature:
While interpreting an amending law enacted by
parliament, it cannot be presumed that the Legislature
was unaware of the existing law or that the
Legislature has committed any mistake by not
mentioning a particular matter in the amending
law. ...(Para 4.17)
Chittagong Hill-Tracts Regulation (Amendment)
Act, 2003, Section 6 and 8: Therefore, if we
read this added sub-section (5) of Section 8
along with the said special provision under
Section 6 of the amending Act, we have no option
but to hold that it is the Legislature, which
does not want those pending civil appeals and
proceedings of civil nature to be transferred
to the District Judge of the respective districts
and, because of that, the Legislature remained
silent in respect of the said pending civil
appeals and proceedings. ...(Para 4.19)
|
| 3. |
Md.
Jahirul Hoque
Vs.
Judge, Artha Rin Adalat, Chattogram & ors
(J.B.M. Hassan, J)
17 SCOB [2023] HCD 20
Key Words:
Section 2, 4, 5, 6(1), 6(5), 34, 41 and 44 of
the Artha Rin Adalat Ain, 2003; Section 35 of
the Code of Criminal Procedure,1898; Liability
of principal borrower and guarantor
|
The petitioner,
a guarantor to the loan in question, filed this
writ petition without surrendering before the
court, when the learned Judge of the Artha Rin
Adalat, in an execution case, awarded civil detention
against him under section 34 (1) of the Artha
Rin Adalat Ain, 2003. The petitioner claimed that
the decree holder bank had not filed the application
as per requirement of section 34 of the act and
the adalat had issued the impugned order of detention
without exhausting all process against the principal
borrower for realizing decretal dues. On the other
hand, the respondent no 3-decree holder bank claimed
that being fugitive from justice the petitioner
couldn’t claim relief. Moreover, he has alternative
remedy of appeal and so the writ is not maintainable.
The High Court Division held that the writ petition
is maintainable on the ground that a Judgment
Debtor cannot be treated as a fugitive accused
and the order of detention being an interlocutory
order, appeal cannot be preferred against the
same. On the claim of the petitioner the Court
held that the execution case can proceed against
all the judgment debtors simultaneously and privilege
of a guarantor to become liable to repay after
borrower’s default remains valid only before instituting
the suit. The Court has made the rule absolute
on the ground that decree holder bank has not
filed the application, with verification or affidavit,
under section 34 of the Artha Rin Adalat Ain,
2003 in accordance with law.
|
Difference between
“the Accused” and “the Judgment Debtor: In this
case, a fundamental difference exists between
two classes of justice seekers i.e “the Accused”
and “the Judgment Debtor”. The term “Accused”
has not been specifically defined in the Code
of Criminal Procedure (Cr.PC). But the common
parlance of ‘Accused’ is, a person who is charged
with the commission of ‘Offence’. On the other
hand, an ‘Offence’ is defined in the Code of Criminal
Procedure as an act or omission made punishable
by any law for the time being in force. On the
other hand, under the Act, 2003 the term “Judgment
Debtor” means a person against whom a decree has
been passed ordering him to repay the decretal
dues and it remains unsatisfied. In this particular
case, the warrant of arrest was issued against
a person who is, admittedly not an Accused person
but a Judgment Debtor. The impugned order was
passed against the Judgment Debtor (petitioner)
awarding him civil detention under section 34
of the Act, 2003. (Para -21, 22)
Ratio requiring to surrender as laid down by
our apex Court, is applicable only for the accused
or convict in criminal proceeding not for a
judgment debtor: We consider that the petitioner’s
civil liability was adjudicated by a civil Court
under the Artha Rin Adalat Ain and the Code
of Civil Procedure. Thereby he is determined
as a Judgment Debtor and not an Accused or convict
for criminal offence. According to section 34
of the Act, 2003, the civil detention has been
awarded only for the purpose of compelling the
judgment debtor to repay the decretal dues.
As such, he does not require to surrender inasmuch
as referred ratio requiring to surrender as
laid down by our apex Court, is applicable only
for the accused or convict in criminal proceeding.
(Para-27)
|
| 4. |
Chattogram
Port Authority
Vs.
Md. Mehedi Hasan
(Md. Ruhul Quddus, J)
17 SCOB [2023] HCD 34
Key Words:
Section 49 of the Chittagong Port Ordinance,1976;
Order VII, Rule 2;Order XIV, Rule 2; Order XV,
Rule 3 and Section 151 of the Code Of Civil
Procedure; Rejection of plaint, Service of Notice
|
The question
came up for consideration in the instant petition
is whether a suit can be brought against the
Chittagong Port Authority without service of
a prior notice under section 49 of the Chittagong
Port Ordinance,1976 and whether issue of maintainability
for non service of aforesaid notice can be realized
after joining the issue. The High Court Division
held that after joining the issue and on completion
of the hearing plaint cannot be rejected. The
Court also held that as there is no alternative
remedy in the Chittagong Port Ordinance,1976
regarding land dispute between the authority
and the private individual the service of summon
along with a copy of plaint upon the authority
will be deemed as sufficient. In the result,
the High Court Division discharged the rule. |
Purpose of serving
notice prior to the institution of the suit under
section 49 of the Chittagong Port Ordinance, 1976:
Service of notice under Section 49 thereof prior
to institution of any suit against the Chattogram
Port authority has been incorporated for its smooth
functioning and discharging its regular routine
activities. Another purpose of such notice is
to save public time and litigants’ expenditure
in the cases where any person aggrieved serves
notice upon the port authority and the authority
by itself addresses his grievance realizing the
right course of action before going to the court.
In such view of the matter, if a person already
institutes a suit under whatever notion and the
summon with a copy of the plaint is served upon
the port authority, the purpose of notice under
Section 49 of the Ordinance would be sufficiently
served inasmuch as no alternative remedy is provided
in the Ordinance for dissolving any land dispute
between the Port Authority and a private individual.
(Para-24)
|
| 5. |
The
State
Vs.
ACC and ors
(Md. Nazrul Islam Talukder, J)
17 SCOB [2023] HCD 40
Key Words:
Article 39 of the Constitution of the People’s
Republic of Bangladesh; The Press Council Act,1974;
The Public-interest Information Disclosure Act
(Provide Protection), 2011 and Rules, 2017;
The Anti-Corruption Commission Act, 2004; Disclosure
of the source of information; fourth pillar
of democracy;
|
In the instant
suo motu rule questions came up for consideration
whether court can punish journalists for the publication
of defamatory, false and fabricated news report
touching the Anti-Corruption Commission and whether
the journalists are protected by the laws in not
disclosing the sources of information. The High
Court Division held that the Media and the Journalist
are authorized to publish news report on corruption
and if anyone is aggrieved by the report, they
can lodge complaint before the Press council for
redress. Analyzing various provisions of laws
like the Constitution, the Press Council Act 1974,
the Public-interest Information Disclosure Act
(Provide Protection), 2011 etc. the High Court
Division also held that laws have given protection
to the Journalists in not disclosing the sources
of information.
|
The media and
the journalists are constitutionally and legally
authorised to publish news reports on corruption
and corrupted practices: Corruption is an insidious
plague that has a wide range of corrosive effects
on societies. It undermines democracy and the
rule of law, leads to violations of human rights,
distorts markets, erodes the quality of life and
allows organized crime, terrorism and other threats
to human security to flourish. Under the aforesaid
discussions, our considered view is that the media
and the journalists are constitutionally and legally
authorised to publish news reports on corruption
and corrupted practices along with money laundering
if any including other important news on the matters
of public interest. (Para-38)
So, under the above facts and circumstances
and the propositions of law, we have no hesitation
to hold the view that the laws have given protection
to the journalists in not disclosing the source
of information. (Para-48)
|
| 6. |
বিগ
বস কর্পোরেশন লিমিডেট
Vs.
আর্মি ওয়েল ফেয়ার ট্রাস্ট (বিচারপতি মোঃ
আশরাফুল কামাল)
17 SCOB [2023] HCD 57
Key Words:
সালিশ আইন, ২০০১ এর ৪২ ধারা; তামাদি আইন ১৯০৮
এর ৫ ও ২৯ ধারা;
|
এই মোকদ্দমায়
প্রতিবাদীপক্ষ ১৮৮ দিন বিলম্ব মওকুফের প্রার্থণাসহ
জেলা জজ আদালতে সালিশ আইনের ৪২ ধারা অনুসারে সালিশী
রোয়েদাদ বাতিলের আবেদন করেন। আদালত তামাদি মওকুফ
করে শুনানির জন্য দিন ধার্য করে। আদালতের আদেশে
সংক্ষুদ্ধ হয়ে দরখাস্তকারীপক্ষ হাইকোর্ট বিভাগে
অত্র সিভিল রিভিশন মোকদ্দমাটি দায়ের করলে আদালতের
সামনে প্রশ্ন উত্থাপিত হয় যে, সালিস আইন ২০০১ এর
৪২ ধারায় উল্লিখিত ৬০ (ষাট) দিন সময়সীমা অতিক্রান্ত
হওয়ার পর কোন পক্ষ বিলম্ব মওকুফের আবেদনসহ সালিশী
রোয়েদাদ বাতিলের আবেদন করলে আদালত কর্তৃক তা মঞ্জুরের
আইনগত কোনো সুযোগ রয়েছে কি না? হাইকোর্ট বিভাগ সালিস
আইনের ৪২ ধারা এবং তামাদি আইনের ৫ ও ২৯ ধারা বিশ্লেষণ
করে এই সিদ্ধান্তে উপনীত হয় যে, বিশেষ আইনে ভিন্নতর
তামাদির মেয়াদের বিধান সুনির্দিষ্ট থাকলে তামাদি
আইনের ২৯(২) ধারা মোতাবেক তামাদি আইনের ৫ ধারা সেক্ষেত্রে
প্রযোজ্য হবে না। পরিণামে হাইকোর্ট বিভাগ রুলটি
চূড়ান্ত করে জেলা জজ আদালতের আদেশ বাতিল করে। |
সালিশ আইন, ২০০১
এর ধারা ৪২ ও তামাদী আইনের ৫, ২৯(২) ধারাঃ
ধারা ৪২ সহজ সরল পাঠে এটি কাঁচের মত স্পষ্ট যে,
সালিশী রোয়েদাদ প্রাপ্তির ৬০ (ষাট) দিনের মধ্যে
সংক্ষুব্ধ পক্ষকে বাংলাদেশে অনুষ্ঠিত আন্তর্জাতিক
বাণিজ্যিক সালিশী রোয়েদাদ বাতিলের ক্ষেত্রে হাইকোর্ট
বিভাগে এবং আন্তর্জাতিক বাণিজ্যিক সালিশে প্রদত্ত
রোয়েদাদ ব্যতীত সালিশী আইন, ২০০১ এর অধীন প্রদত্ত
সালিশী রোয়েদাদ বাতিলের ক্ষেত্রে জেলা জজ আদালতে
আবেদন দাখিল করতে হবে। যেহেতু সালিশী আইন, ২০০১
এর ৪২ ধারার দরখাস্ত দায়েরে ৬০ (ষাট) দিন সময়
প্রদত্ত হয়েছে সেহেতু তামাদী আইনের ২৯(২) ধারার
বিধান মোতাবেক তামাদি আইনের ৫ ধারা প্রযোজ্য নয়।
ফলে সালিশী আইন, ২০০১ এর ৪২ ধারায় বর্ণিত ৬০
(ষাট) দিন অতিবাহিত হওয়ার পর রোয়েদাদ বাতিলের
দরখাস্ত আইন দ্বারা বারিত। (প্যারা ২৩, ২৪) |
| 7. |
Chattogram
Dry Dock Ltd
Vs.
M.T. Fadl-E-Rabbi & ors
(Muhammad Khurshid Alam Sarkar, J)
17 SCOB [2023] HCD 82
Key Words:
Estoppel; Customs Duty; Bill of Entry; Imported
goods; Section 115 of the Evidence Act, 1872;
Section 18, 23, 43, 44, 45, 51, 52, 53 and 79
of the Customs Act, 1969; Section 2(c), 3(1)
and 3(2) of the Imports and Exports (Control)
Act, 1950
|
The plaintiff
(the applicant-auction purchaser) was the highest
bidder of the auction-sold vessel who prayed for
an order from the High Court Division for a direction
to the Marshall of the Court to deliver the auction-sold
vessel to him without payment of any customs duties
and VAT. He claimed that previously the Assistant
Commissioner of Customs of Chattogram had informed
that there was no scope for assessing custom duties
against the said vessel and, as such he is now
barred by estoppel to demand any custom duties.
Moreover, for claiming custom duties on a foreign
vessel ordered by the Court to be sold as scarp,
Bill of Entry is required. The High Court Division,
however, analyzing sections 18, 23, 43, 44, 45,
51, 52, 53 and 79 of Customs Act and relevant
provisions of the Import and Export Act held that
when a foreign vessel is brought into or comes
in Bangladesh, with or without Bills of Entry,
it is dutiable. Consequently, the rule is discharged
with the direction to take delivery of the vessel
upon payment of the customs duties and other Government
dues. |
Sections 18,
23, 43, 44, 45, 51, 52, 53 and 79 of Customs Act
1969: From a careful examination of the relevant
provisions of the Customs Act, namely, Sections
18, 23, 43, 44, 45, 51, 52, 53 and 79 and relevant
provisions of the Import and Export Act, it leads
me to hold that when any foreign thing, object,
goods, which would include a foreign vessel, is
brought into or comes in Bangladesh, be it without
or with Bills of Entry, it is dutiable, as per
the prevailing rate prescribed in the Bangladesh
Customs Tariff, if the same is picked up/collected/arrested
for the purpose of home consumption, warehousing,
selling to local or foreign national/country or
for any other lawful purpose. (Para-28)
|
| 8. |
Abul
Kasem & anr
Vs.
Asfaque Ahmed & anr
(Md. Badruzzaman, J)
17 SCOB [2023] HCD 93
Key Words:
Section 31, 32, 34, 35, 41, 43, 52, 58, 59,
60, 69, 75, 77, 88, 89 of the Registration Act,
1908; Section 115(1) of the Code of Civil Procedure;
Suit for declaration; Maintainability of suit;
Proof of title and possession; Onus of proof;
Execution and registration of deed;
|
This is a suit
for declaration that the impugned registered sale
deed was forged, illegal, inoperative and not
binding upon the plaintiff. The trial court decreed
the suit but the appellate court allowing the
appeal reversed the judgment and decree of the
trial court. The plaintiffs as petitioners preferred
civil revision before the High Court Division.
The High Court Division on assessment of the relevant
provisions of law held that from the endorsement
of the sub-registrar the document achieved strong
presumptive evidence of its due registration and
thus, the burden of proof was upon the plaintiff
which he failed to discharge. Moreover, the defendant
has proved the execution of the deed and possession
both by oral and documentary evidence. The High
Court Division found that the trial court tried
to establish plaintiff’s case through the weakness
of the defendant which is against the settled
principle of law that the plaintiff must prove
his case in order to get a decree. Further, the
High Court Division held that as the plaintiff’s
title was also in question, the plaintiff should
have filed suit for a decree of declaration of
title as principal relief along with other consequential
relief regarding the forged deed. In the result,
the High Court Division discharged the rule. |
The plaintiffs
filed the present suit for mere declaration that
impugned registered kabala deed was collusively
made and obtained by forgery and not binding upon
them. The plaintiffs filed the suit as the disputed
kabala cast cloud upon title of the plaintiffs
to the suit land and on the basis of the deed
in question, the defendant claimed title to the
suit land. Since, before filing of the suit, a
cloud has been cast upon the plaintiffs’ title
to the suit land and that the defendant denied
their title therein by dint of a registered kabala,
the plaintiffs should have filed the suit for
a decree of declaration of title to the suit land
as principal relief along with other consequential
relief that impugned registered kabala deed was
collusively made and obtained by forgery and not
binding upon them, as provided under section 42
of the Specific Relief Act. Accordingly, this
suit as framed is not maintainable. (Para-28)
It appears that the whole proceeding in regards
execution and registration of the deed in question
and endorsement of the Sub-Registrar therein
as provided under sections 31, 32, 34, 35, 52,
58, 59 and 60 of the Registration Act, as stated
above, were done in accordance with those provisions
of the Act and the document achieved strong
presumptive evidence as to its due registration.
Accordingly, burden was upon the plaintiffs
to rebut such evidence by adducing strong evidence
to prove that the deed in question was a product
of forgery. But the plaintiffs failed to discharge
the onus. (Para-40)
|
| 9. |
Md.
Mominul Islam
Vs.
Bangladesh & ors
(Zafar Ahmed, J)
17 SCOB [2023] HCD 108
Key Words:
Rule 5(Ka) of “h¡wm¡cn ¢hj¡e Lf¡Ñlne LjÑQ¡l£
(Ahpli¡a¡ J A¡e¤a¡¢oL) ¢h¢dj¡m¡, 1988; Bangladesh
Biman Corporation Ordinance, 1977; principle
of approbation and reprobation ; Section 114
of the Evidence Act, 1872
|
In the instant
case the petitioner challenged his retirement
from service by the CEO of Biman Bangladesh Airlines
Ltd on the ground of malafide. The respondent
argued that the CEO and Managing Director has
the power and authority to pass the order of retirement
and the allegation of malafide is baseless. Further
submission of the respondent was that illustration
(e) to Section 114 of the Evidence Act presumes
that official acts are done rightly and regularly
in accordance with law and the petitioner failed
to rebut the presumption contained in illustration
(e). The High Court Division, however, analyzing
applicable laws and examining materials on record
found that for retiring any person from office
a resolution from board of directors of Biman
Bangladesh Airlines is required and without having
such board resolution and delegated authority
the order of the CEO was without jurisdiction,
arbitrary and malafide. |
Articles of Association
are to be followed mandatorily if they are not
in conflict with the company law: It is settled
principle of law that memorandum and articles
of association being the constitution of the company
regulate the affairs of the company including
the powers of the board of directors and others
and thus, articles are mandatory to be followed
if they are not in conflict with the company law.
(Para 26)
In absence of delegated authority and without
any decision of the board of directors the Managing
Director and CEO of the Biman has no power to
retire anyone from service: In the case in hand,
the Managing Director and CEO of the Biman issued
the impugned order retiring the petitioner from
service without any decision of the board of
directors. No power was delegated to him to
take the decision. Therefore, he was not competent
authority to retire the petitioner. For this
reason coupled with the attending facts and
circumstances of the case, the unauthorised
exercise of power by the Managing Director and
CEO of the Biman is also without jurisdiction,
arbitrary and malafide. Accordingly, we find
merit in the Rule. (Para 40)
|
| 10. |
Anamika
Corp. Ltd. & ors
Vs.
Humayun M. Chowdhury & ors
(Kashefa Hussain, J)
17 SCOB [2023] HCD 119
Key Words:
Order 7 Rule 11 of the Code of Civil Procedure,1908
; Section 45 of the Evidence Act, 1872 ; Section
2, 7A, 10, 17(ka), 19(1)(4), and 32 of the Arbitration
Act, 2001; Expert opinion; Valid arbitration
agreement; Ad-interim injunction
|
In the instant
Civil Revision question arose whether the learned
District Judge while entertaining an application
under section 7K of the Arbitration Act 2001 can
pass an order under section 45 of the Evidence
Act, 1872. The petitioner Anamika Corporation
Ltd. filed an Arbitration Miscellaneous Case under
section 7K of the Arbitration Act, 2001 before
the court of learned District Judge praying for
an order to restrain the opposite parties from
transferring or entering into deed of agreement
or otherwise disposing of the scheduled property
to any third party until disposal of the arbitration
proceedings under section 7A(a)(b) and section
7A(1)(c) of the same Act. The opposite parties
denying the existence of an agreement made an
application under Section 45 of the Evidence Act,
1872 for examination of the signature of the opposite
parties by hand writing expert. The Court of the
learned District Judge allowed, in part, the application
for examining the signature of the opposite parties
by hand writing expert against which the petitioner
filed this Civil Revision. The High Court Division
held that the power to issue an order for examination
of a signature by hand writing expert has been
conferred upon the Arbitral Tribunal only under
the provisions of section 17(ka) of the Arbitration
Act, 2001. While issuing an order of ad-interim
restraint or injunction whatsoever, the learned
District Judge is not empowered to pass an order
under section 45 of the Evidence Act. Civil court
cannot travel beyond the limited powers of passing
ad-interim orders in a situation of urgency conferred
upon it under Section 7K of the Act. In the result,
the rule was made absolute. |
7K (1) of the
Arbitration Act, 2001:
The substantive prayer in the Arbitration Miscellaneous
case No. 7 of 2019 under section 7K (1) of the
Arbitration Act, 2001 is basically a prayer for
an order of restraint till arbitration proceedings
are initiated and nothing else. Further I am also
of the considered view that section 7K (1) sub-section
Uma including other sections only contemplate
the passing of an ad-interim order in case of
urgency to address certain circumstances or situations
either during an arbitration proceeding or before
an arbitration case is initiated. (Para-32)
The legislature has conferred the power to
decide as to whether a valid arbitration agreement
is in existence upon the tribunal only:
Section 19(2)(c) of the Act of 2001also contemplates
a situation on the existence of an arbitration
agreement when the arbitration agreement alleged
by one party is not denied by the other. Therefore
it is clear that to constitute a valid arbitration
agreement within the meaning of the Act of 2001
the existence of the agreement must be agreed
upon by both parties. In this case it is clear
that the opposite parties denies the existence
of the agreement itself. Therefore under the
provisions of Section 17(ka) of the Arbitration
Act, 2001 read with other provisions of the
Act it is my considered view that the legislature
has conferred the power to decide as to whether
a valid arbitration agreement is in existence
upon the tribunal only. (Para 49)
|
| 11. |
Unilever
Bd Ltd.
Vs.
Chairman, National Board of Revenue & ors
(Md. Shohrowardi, J)
17 SCOB [2023] HCD 137
Key Words:
Section 15, 17 of the Customs Act, 1969; Section
96 of the Trademarks Act, 2009; Article 102
of the Constitution of Bangladesh; বাংলাদেশ
আমদানি নীতি আদেশ, ২০২১-২০২৪; Importation of
parallel goods; equally efficacious remedy
|
The writ petitioner
being a registered trademark holder of the goods
in question namely Vaseline, Knorr, Dove, Pepsodent
Tooth Brush, Close-Up Milk Calcium Nutrient and
Axe and/or empty branded packing materials such
as bottles, tubes, containers, wrappers, packets,
labels etc. of Unilevers PLC (which are locally
produced, packaged and marketed by the petitioner)
prayed for a direction in the form of writ of
mandamus upon the respondents Nos. 1 to 6 so that
they cannot import or release the goods in Bangladesh
and sought further direction upon the respondents
Nos. 7 to 57 for not allowing opening of letter
of credit by any importer to import the above
goods. For disposal of the rule a larger Bench
of the High Court Division was constituted. The
High Court Division examined whether the importation
of parallel goods in question into Bangladesh
is barred under section 15 of the Customs Act,
1969 without prior permission of the petitioner
and whether the instant writ petition is maintainable
in law. The court analysing various provisions
of different laws held that there is no bar in
the law in importing parallel goods and any person
can import parallel goods in compliance with the
procedure mentioned in section 15 of the Customs
Act. So, there is no obligation on the part of
the respondents to restrain any person from importing
parallel goods or to restrain any person from
opening letter of credit for importation of parallel
goods of Unilever Bangladesh Ltd. Moreover, there
is alternative and equally efficacious remedy
to the petitioner for violation of any condition
laid down in section 15 of the Customs Act, 1969
regarding importation of parallel goods and the
petitioner at any time can file an application
to the customs authority for redress. Consequently
the Rule was discharged. |
Section 15 and
17 of the Customs Act, 1969:
On a bare reading of Section 15 of the Customs
Act, 1969 it reveals that there is neither absolute
bar in importing parallel goods nor said section
gives any unfettered right to the importers to
import parallel goods. Section 15 of the said
Act is balanced legislation. Section 15(d)(e)(g)
and (h) of the said Act authorized the importers
to import parallel goods subject to compliance
with the procedure/conditions as mentioned in
the said provision. Nothing has been stated in
said section regarding prior permission of the
petitioner in importing parallel goods. Therefore
the submission of the learned Advocate for the
petitioner that without prior permission of the
petitioner no one is legally entitled to import
the parallel goods of Unilever Bangladesh is misconceived
and fallacious. If any importer fails to satisfy
the conditions laid down in Section 15(d)(e)(g)
and (h) of said Act the customs authority is empowered
under section 17 of the Customs Act, 1969 to detain
and confiscate the imported goods. Therefore we
are of the view that there is no wholesale restriction
in section 15 of the said Act in importing parallel
goods. (Para-19)
|
| 12. |
Probir
Kumar Dey @ Saiful & anr
Vs.
Shipra Rani Dey & ors
(Fatema Najib, J)
17 SCOB [2023] HCD 154
Key Words:
The Hindu Succession Act, 1956; The Hindu Women’s
Rights to Property Act,1937; Conversion to Muslim;
Partition; Caste Disability Removal Act, 1850;
The Bangladesh Laws (Revision and Declaration
Act, 1973 (Act No. VIII of 1973); share on partition
|
One Rabindra
Kumar Dey was the owner and possessor of 4.81
decimals of land. He died in 1978 leaving behind
his wife, two sons and four daughters. One of
his sons, namely, Prodip died and the other son
Probir converted to Islam before Rabindra’s wife
Arati Bala Dey filed the instant suit for partition
claiming saham. During the pendency of the suit
plaintiff died and Rabindra’s unmarried daughter
Shipra Rani was substituted as plaintiff. Question
arose as per Daya Bhaga school of law whether
the plaintiff Arati Bala Dey inherited from her
deceased husband; whether the substituted plaintiff
Sipra Rani Dey is entitled to inherit from her
deceased father and mother; and whether the plaintiffs
are entitled to a decree for partition as prayed
for? The High Court Division analyzing the relevant
laws, particularly, the Hindu Women’s Rights to
Property Act 1937, Caste Disability Removal Act,
1850 and the Bangladesh Laws (Revision and Declaration)
Act, 1973 held that when a Hindu governed by the
Daya Bagha School of Hindu Law dies intestate
leaving any property, his widow becomes complete
owner and co-sharer of the property during her
life time and she is entitled to be in the same
position as a son in the matter of claiming partition.
The Court further held that after conversion to
the faith of Islam son Probir has lost his right
to his father’s property and, as such, the substituted
plaintiff Sipra Rani Dey, the unmarried daughter
of Rabindra Kumar Dey, is entitled to get the
property on partition. |
Section 3 of
the Hindu Women’s Rights to Property Act, 1937:
Let us now consider whether a Hindu widow is entitled
to get the same share as a son. In this connection
reference may be made to section 3 of the Hindu
Women’s Rights to Property Act, 1937 (XVIII of
1937). Sub section (1) of section 3 of the said
Act says that when a Hindu governed by the Daya
Bagha School of Hindu Law dies intestate leaving
any property dies, his widow, shall, subject to
the provisions of sub-section(3), be entitled
to the same share as a sons. Sub-section (3) of
section 3 of the said Act further says that any
interest devolving on a Hindu widow shall be the
limited interest known as a Hindu Woman’s estate,
but she shall have the same right of claiming
partition as a male owner. Further sub-section
(2) of section 1 of the said Act stipulates that
it extends to the whole of Bangladesh. Thus from
reading of the aforesaid provisions of sub-sections
(1) and (3) of the Hindu Women’s Rights to Property
Act, 1937 it is clear that the widow during the
period of her life time she became complete owner
and co-sharer of the property and this sub-section
3(3) has the effect of putting the widow in the
same position as a son in the matter of claiming
partition. (Para 18 and 19)
|
| 13. |
Prof.
Muhammad Yunus
Vs.
The State
(SM Kuddus Zaman, J)
17 SCOB [2023] HCD 162
Key Words:
Sections 303 (Uma), 307, 117, 314 of Bangladesh
Labor Act, 2006; Labor Welfare Foundation Law,
2006; Section 28 of the Companies Act; Bangladesh
Labor Rules, 2015
|
Opposite Party
No.2, an Inspector of Labor, in course of inspection
of the GTC detected some violations of the labor
law and submitted a complaint under Bangladesh
Labor Act, 2006 in the Court of learned third
Labor Court, Dhaka. The alleged violations of
Labor Law by the GTC are- (i) on completion of
probationary period job of the labors and employees
are not made permanent, (ii) the labors and employees
are not granted annual leave with pay or encashment
of leave or money in lieu of annual leave and
(iii) the company did not constitute Labor Participation
Fund and Labor Welfare Fund nor deposited 5% of
net profit in above fund under the Sramik Kollan
Foundation Ain, 2006. On behalf of the petitioner
it was submitted that there is no date of occurrence
of this case and this case is barred by the law
of limitation for not having filed within 6 months
as provided in Section 314 of Bangladesh Labor
Ain, 2006; even if all the averments made in the
complaint are taken as true in its entirety even
then no complicity of the petitioner can be established;
the petitioner is a Nobel laureate and an internationally
acclaimed personality who had no role in the management
of financial or administrative affairs of the
GTC; the GTC is a nonprofit organization registered
under Section 28 of the Companies Act, 1991 therefore
does not require to constitute a Labor Participation
Fund; and the GTC works in the telecommunication
sector on the basis of its contract with other
companies and as such its labors and employees
are also appointed on contractual basis for which
the proceeding in Labor Court is an abuse of the
process of the Court. The High Court Division
analyzing relevant laws and rules and considering
admitted facts found the above contentions of
the petitioner are not tenable in law as because
the question of limitation is a mixed question
of law and facts which cannot be determined without
taking evidence; section 28 of the Companies Act
does not exempt any Company from making contribution
to the Labor Welfare Fund and article 33 and 34
of the Memorandum and Articles and Association
of the GTC mentions that the Board of Directors
exercises full managerial and financial control
over the GTC and is responsible for the management
and administration of the affairs of GTC and as
such it cannot be said at this stage of the proceedings
that the petitioner has no role in the financial
management and administration of the GTC. Consequently,
the Rule was discharged. |
Section 28 of
Companies Act:
There is nothing in Section 28 of the Companies
Act which exempts any Company registered under
above provision from making contribution to the
Labor Welfare Fund:
The learned Advocate for the petitioner repeatedly
submits that the GTC is a nonprofit company and
registered under Section 28 of Companies Act.
As such GTC is not liable to contribute 5% of
the net profit to the Labor Welfare Fund. In support
of above submission the learned Advocate produced
the Memorandum and Articles and Association of
the GTC. But there is no mention in above Memorandum
that the GTC is a nonprofit company. On the contrary
Article 71 of above Memorandum shows that GTC
may earn profit but the profit shall be utilized
for the advancement of the objectives as stated
in the above Memorandum. Since the GTC is a profit
earning company it is not understandable as to
why the company will not contribute a very insignificant
part of its net profit for the welfare of its
labors. There is nothing in Section 28 of the
Companies Act which exempts any Company registered
under above provision from making above contribution
to the Labor Welfare Fund. (Para 28, 29)
Section 314 of Bangladesh Labor Ain, 2006:
The alleged violations were first detected by
the complainant on 09.02.2020. He issued a letter
to the GTC for taking remedial measures. No
satisfactory reply having received a second
inspection was held on 16.08.2021 and again
the same violations were discovered. This Complaint
was filed in the concerned labor court on 28.08.2021.
As such, it prima facie appears that this case
has a date of occurrence and the same has been
filed within six months from the date of occurrence
as provided in Section 314 of Bangladesh Labor
Ain, 2006. Moreover it is well settled that
a question of limitation is a mixed question
of law and facts which can be determined on
consideration of evidence to be adduced at trial.
(Para 34)
|
| 14. |
Md.
Shahin Ikbal
Vs.
General Certificate Officer & ors
(Md. Zakir Hossain, J)
17 SCOB [2023] HCD 168
Key Words:
Section 4, 6, 16 of the Public Demands Recovery
Act, 1913; Section 5(5) of the Artha Rin Adalat
Ain, 2003; Certificate proceeding; Certificate
Officer; Writ of certiorari; Calculation of
interest
|
For a defaulted
loan of 250,000/- taka a certificate case was
instituted against the petitioner-certificate-debtor
and he was ordered to pay Tk. 5000/- per month
as repayment of loan on 05.02.2008. Thereafter,
as per order of the Certificate Officer, the certificate
debtor deposited entire amount of the certificate
in deferent installments. The Certificate Officer
on 01.02.2016 wanted to know from the certificate
holder about the outstanding dues of the certificate
debtor. The certificate holder informed in reply
that till then Tk. 5,07,766.00 was outstanding.
In the above backdrop, challenging the legality
and propriety of the certificate proceeding, the
petitioner rushed to the High Court Division and
obtained the Rule and stay. High Court Division
found that as per section 5(5) of the Artha Rin
Adalat Ain 2003 the certificate proceeding does
not suffer from jurisdictional defect raised by
the petitioner but the Certificate Officer without
any objective satisfaction and only on the basis
of improperly filed requisition letter and without
considering as to whether the entire outstanding
dues as claimed by the respondent-Bank is actually
due at the relevant time, started certificate
proceeding which is illegal. Consequently, the
Court quashed the certificate proceeding. |
Section 5(5)
of the Artha Rin Adalat Ain, 2003: On meticulous
and meaningful reading of the aforesaid provision
of the Ain, 2003, it is as clear as day light
that the legislature has consciously given option
for shopping the forum either to file Artha Rin
Suit or Certificate Case for speedy realization
of the outstanding amount which does not exceed
Tk. 5 lacs. The jurisdiction of the Certificate
Officer is in addition but not in derogation to
the jurisdiction of the Artha Rin Adalat; therefore,
the certificate proceeding does not suffer from
jurisdictional defect raised by the petitioner.
Consequently, the issue stands decided in the
negative. (Para 16)
Section 16 of the Public Demands Recovery Act,
1913: By and large after filing the Certificate
Case, the calculation of interest has to be
made in accordance with section 16 of the PDR
Act. If the contention of the respondent-Bank
is accepted that the interest and charges are
recoverable on the certificate amount upto the
date of realization as per the mandate of section
16 of the PDR Act, then it would be safely concluded
that the interest imposed during the pendency
of the Certificate Case was also unlawful and
unjustified. (Para 25)
|
| 15. |
Samia
Rahman
Vs.
Bangladesh and others
(Md. Akhtaruzzaman, J)
17 SCOB [2023] HCD 182
Key Words:
Plagiarism; Regulation 7(a) of the Enquiry Committee
and Tribunal (Teachers and Officers) Regulations,1980;
Article 52 of the Dhaka University Order,1973;
Section 38(5), 45(5) of the First Statutes of
the University of Dhaka
|
This writ petition
was filed by one Associate Professor of the department
of Mass Communication and Journalism of Dhaka
University when the University Syndicate demoted
her to the post of Assistant Professor for a period
of two years on the basis of report of the tribunal
formed to enquire the allegations of plagiarism
against her. The tribunal did not categorically
find the petitioner to have adopted plagiarism,
but found that the published article lacks quality.
The tribunal did not recommend to award her relegation.
But the syndicate arriving at the decision that
the petitioner resorted to plagiarism handed her
the above punishment. The petitioner claimed that
without following the due process of law and violating
natural justice most illegally she was punished.
On the other hand, respondent claimed that the
petition was not maintainable as it involved resolution
of disputed questions of facts and the petitioner
failed to exhaust the alternative remedy of appeal
before the Hon’ble Chancellor of the University.
The High Court Division held that the matter of
copying being a question of fact cannot be decided
in the Writ Jurisdiction but the authority concerned
should have acted in accordance with law giving
the petitioner adequate opportunity of being heard
before awarding punishment. Moreover, considering
plagiarism as intellectual crime the court has
expressed frustration and held that the tendency
of plagiarism among the University teacher is
alarming and shocking for the nation. Finally,
the High Court Division declared the decision
of the Syndicate demoting the petitioner as illegal. |
Mandatory requirements
to initiate a departmental proceeding:
It appears that framing charge as well as specification
of penalty proposed to be imposed by the Syndicate
upon the petitioner are mandatory requirements
to initiate a departmental proceeding. Upon receiving
the reference from the Syndicate the Enquiry Committee
shall communicate the charge to the concerned
accused together with the statements of allegations
and request him/her to submit, within 7(seven)
days from the day the charge is communicated to
him/her, a written statement of his/her defense
and to show cause at the same time why the penalty
proposed should not be imposed on him/her and
also states whether he/she desires to be heard
in person or not. After framing the charge by
the Syndicate the Tribunal shall take into consideration
of the charges framed, the evidence on record,
both oral and documentary, including the additional
evidence, if any, accepted by it and recommend
such action against the accused as it may deem
fit. In the case in hand, admittedly no formal
charge was framed which is sine quo non to start
a formal departmental proceeding. (Paras 26 and
27)
The observance of the principles of natural
justice is not an idle formality. A meaningful
opportunity to defend oneself must be given
under any circumstances to its truest sense
and, in the instant case, the respondents sought
to show ceremonial observance of the principles
of the natural justice as an eye wash for an
ulterior purpose without affording any real
opportunity to the petitioner to defend herself
by not furnishing the enquiry report as well
as the report of the Tribunal. It appears that
the impugned decision of the Syndicate is vitiated
by bias and malafide inasmuch as while the petitioner
was awarded with a major punishment with the
stigma of plagiarism but despite repeated requests,
she was not given a copy of the enquiry report.
The Syndicate did not care to consider the long
delay in completing the enquiry. (Para 32)
|
| 16. |
Sirajul
Haque Howlader and ors
Vs.
Zulekha Begum & ors
(Md. Ali Reza, J)
17 SCOB [2023] HCD 199
Key Words:
Rule 46, 48 of the Registration Rules, 1973
and section 69 of the Registration Act, 1908;
Sections 101 and 103 of the Evidence Act; Section
3 of the Transfer of Property Act and Section
68 of the Evidence Act; Section 114(g) of the
Evidence Act; Order 3 Rule 2 of the Code of
Civil Procedure; Section 85 of the Evidence
Act; Section 120 of the Evidence Act; Husband
instead of wife or wife instead of husband shall
be competent witness; Article 120 of the Limitation
Act, 1908;
|
The respondent
Nos. 1-4 as plaintiffs filed a Title Suit for
declaration that the documents mentioned in the
schedule Nos. 1-6 to the plaint are forged. They
claimed that Rustom Howlader, who was their father,
and the father of the defendant Nos. 1 and 6 also,
died at the age of 110. From 20 years before his
death he was completely unable to walk or move
because of his dire sickness along with blindness
and was completely bed ridden. He lived with the
defendants in a mess till his death and taking
such advantage of his illness those impugned documents
were obtained. On the other hand defendants claimed
that Rustom Howlader was never sick or bed ridden
or blind and was always healthy and performed
his own work by himself before his death. The
trial Court decreed the suit mainly on the finding
that Rustom Howlader was sick from 1980 till his
death and he had no normal sense or consciousness.
The High Court Division assessing the evidence
on record found that the plaintiff had failed
to prove that Rustom Howlader was completely sick
and bed ridden. It also found that plaintiffs
had failed to discharge their onus under sections
101 and 103 of the Evidence Act to prove that
the signatures given by Rustom Howlader in all
the documents are false. Finally, the Court found
that the suit was barred by limitation and consequently
set aside the judgment and decree of the trial
Court. |
Sections 101
and 103 of the Evidence Act:
According to the provisions laid down in sections
101 and 103 of the Evidence Act, the entire onus
was upon the plaintiffs to prove that the signatures
given by Rustom Howlader in all the documents
are false because it is their specific case that
Rustom Howlader never appeared in public due to
his serious ailment and indisposition and blindness
and even he was to be taken to the toilet by somebody
else and remained bed ridden from 1980 until his
death. Plaintiffs had to take resort to expert
opinion in order to discharge their initial onus
under section 101 of the Evidence Act to prove
that those impugned documents were executed not
by Rustom Howlader but by an imposter with a scheme
to grab the property and Rustom Howlader was completely
unable to perform his own affairs due to his serious
illness. Law says when the initial onus is discharged
by the plaintiff the onus then shifts upon the
defendants to show the contrary. (Para 19)
Article 120 of the Limitation Act, 1908: According
to paragraph No. 7 of the plaint, cause of action
arose on 14.07.2002 after having knowledge from
the sub-registry office. But on perusal of the
records it appears that the certified copies
of exhibit-2 and 2(ka) were obtained on 17.07.1995.
The certified copies of exhibit-2(Ga) and exhibit-2(Gha)
were obtained after filing of the suit on 05.07.2003
and 03.07.2003 respectively. Thus it can be
held that the cause of action of the suit is
definitely false and the suit is barred by law
of limitation. The beneficiaries of exhibit-2(Gha)
dated 19.12.1982 being defendant Nos. 4-5 are
the sons of plaintiff No. 3 Sahaton and the
husband of plaintiff No. 2 Rahaton was the identifier
to exhibit-Gha dated 15.09.1994. So it raises
serious doubt on the story of cause of action
and as such it is held that the suit is barred
by limitation under Article 120 of the Limitation
Act. (Para 27)
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