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51

Civil Appeal 14/2014
((from the judgment and order dated the 13th May, 2009 passed by a Division of the High Court Division in writ Petition No.8228 of 2008))

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The Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Labour and Employment and others
vs
Mohammad Amirul Islam and others

In the instant case the contract between the parties is neither a constitutional contract nor a statutory or commercial contract and thus, there is no scope to enforce any terms of the contract invoking writ jurisdiction and as such the writ-petition was not maintainable.

52

Civil Petition 55/2023
((From the judgment and order dated the 14th day of November, 2022 passed by the High Court Division in Writ Petition No.1278 of 2017))

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Sree Chandan Das
vs
Sukhamoy Chakraborty and others

The ‘Sitakunda Shrine Committee’ cannot be termed or treated as a local authority or an autonomous body as the said body was not established by any law. It is a management committee of a private body, which is not performing any function in connection with the affairs of the Republic or of a local authority, as such the writ petition challenging the decision of the said private body is not within the ambit of local authority, which cannot be amenable in writ jurisdiction under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the writ petition was not maintainable.

53

Civil Appeal 218/2018
(From the judgement and order dated the 19th day of October, 2017 passed by the High Court Division in Writ Petition No.10371 of 2007)

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A.Y. Moshiuzzaman, Senior Advocate, instructed by Syed Mahbubar Rahman
=vs=
Mr. Nozrul Islam Chowdhury, Senior Advocate, instructed by Ms. Madhu Maloti Chowdhury Barua

We have no hesitation to hold that the High Court Division has committed serious error and also travelled beyond its jurisdiction in re-hearing the Rule Nisi making the same absolute after recalling the earlier order of ‘disposed of the Rule’. We are sorry to say that this kind of gratuitous relief by the High Court Division is perversed one and highly regrettable.

54

Criminal Petition 798/2018
(From the judgment and order dated the 6th day of May, 2018 passed by the High Court Division in Criminal Revision No.645 of 2017)

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Mr. Balayat Hussain, Advocate, instructed by Mr. Zainul Abedin
=vs=
Mr. M. Ali Murtaja, Advocate, instructed by Ms. Mahmuda Begum

If we consider the above propositions of law in regard to the filing of petition of complaint through an attorney and the attending facts and circumstances of the present case, then we have no hesitation to hold that in filing the complaint by the attorney no illegality has been committed and the learned Magistrate rightly took cognizance into the case against the accused petitioner having complied with the relevant provision of law.

55

Civil Petition 4506/2017
(From Writ Petition 5673/2016 of High Court Division.)

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Niko Resources (Bangladesh) Ltd
Vs
Professor M. Shamsul Alam and ors

Now, conceptually it is possible to draw a sharp line that none would be spared, how high so ever, when there is corruption in whatever manner and wherever that has been committed.

56

Civil Petition 1808/2023
(CIVIL PETITION FOR LEAVE TO APPEAL NOS. 1808-1810 OF 2023
(Arising out of Income Tax Reference Application No. 108-110 of 2015)

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Dr. Muhammad Yunus
-Vs-
The Commissioner of Taxes, Zone-06, Dhaka

Regarding imposition of gift tax on the Professor Muhammad Yunus Trust and Yunus Family Trust the Hon’ble Appellate Division held as under:
“Fortified with the decisions and the discussions as made above, we are of the view that the High Court Division rightly held that the assessing officer (Extra Assessment Commissioner of Taxes) and the appellate authorities below did not commit any illegality in imposing gift tax as contemplated under section 3 of the Gift Tax Act, 1990 and in rejecting the claim of exemption; because, in view of the provisions of the Gift Tax Act, 1990, the claim of exemption of the assessee-applicant does not have any legal basis.”

57

Criminal Petition 1690/2022

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The State, represented by the Deputy Commissioner, Dhaka
-VS-
AHM Fuad

From the impugned order it does not transpire that the High Court Division in granting bail to the accused has at all considered the provision of section 13 of the Ain, 2012; rather it shows that the High Court Division has considered some inconsequent issues and disposed of the matter as if it had dealt an application for bail under the provision of the Code of Criminal Procedure.

58

Civil Petition 2460/2012
(/)

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Bangladesh Textile Mills Corporation (BTMC), represented by its Chairman
-vs-
Mst. Delwary Begum being dead her heirs: (1) Mokhlesur Rahman and others

In view of the above provisions of law, there is no scope to challenge the order of nationalization, notified in the gazette by the Government and thus, suit is not maintainable.

59

Civil Appeal 428/2019
(/)

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Sree Porikshit Mondal being dead his heirs: 1(a) Janmojoy Mondol and another
-vs-
Sree Paresh Chandra Biswas and others

The evidence adduced by the plaintiff does not show that he had taken any step(s) for registration of the unregistered bainanama within a period of 6(six) months. In view of the provision of section 17B(1) of the Act of 1908, it is our considered view that as the plaintiff failed to make registration of the bainanama within the period of 6(six) months from the date of commencement of the act and, that he failed to approach to the defendants within the said period to register the bainanama, we are of the view that the bainanama has become void in operation of the law.

60

Civil Appeal 142/2009
(From the judgment and order dated 19.02.2006 passed by the High Court Division in Writ Petition No.2251 of 1999)

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Commissioner of Customs, Mongla Customs House, Khulna and another
Vs.
M. M. Corporation a proprietary firm, owned by Mahbub Alam Chowdhury S.F. Chamber (1st Floor), Strand Road, Chattogram

The true import of the declaration made in the Finance Bill, 1999 under Section 3 of the Provisional Collection of Taxes Act, 1931 is that the imposition of supplementary duty and surtax as provided in Clauses 4 and 7 of the Finance Bill shall have immediate effect i.e. from the date of placement of the budget before the Parliament till it is passed by the Parliament.

61

Civil Review Petition 195/2020
(with C.P.No.2957-2958,2416,2627,2606,3351,3359,3408,3377-3378,3270-3271,3393,2823,2860-2861 of 2022 AND 2112 of 2020)

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The Government of Bangladesh, represented by the Secretary, Ministry of Education, Secondary and Higher Secondary Division, Bangladesh Secretariat, Dhaka and others Vs. Arifur Rahman and others

 The NTRCA is authorised to ascertain the number of vacant posts in the non-government educational institutions gathering information from the District Education Officer and it arranges both written and viva voce examination. The NTRCA is also empowered to publication of final result within thirty days from the date of holding viva voce examination and prepare a panel of successful candidates as per Rules. The NTRCA shall give registration within 90 days from the date of publication of results and also issue certificates to the deserving candidate for the purpose of appointment as teacher in the non-government educational institutions. The certificate issued in favour of a successful candidate by the NTRCA shall remain valid for three years only. Consequently, the certificate will lose its validity on expiry of three years from the receipt of certificate. No person shall be appointed as teacher in the non-government educational institutions if he is not registered or has not acquired certificate from the NTRCA. It is also evident that mere registration and receipt of certificate from the NTRCA will not confer an indefeasible right on a candidate to be appointed as teacher unless there is discrimination and arbitrariness regarding the filling up of vacancies. However, the recommendation by NTRCA by way of preparation and publication of a list of successful candidates should get respect it deserves.  We are of the view that although the NTRCA is not the appointing authority the certificates issued by it is essential for recruitment as teachers in the non-government educational institutions and the recommendation by NTRCA by way of preparation and publication of a list of successful candidates should get due consideration for appointment.  As per Rule 10 of Bidhimala 2006 the certificates issued by NTRCA in favour of the writ petitioners are valid for a period of three years and after expiration of the validity period, the writ-petitioners would not be entitled to get appointment on the basis of time expired certificates issued earlier in favour of them. In the instant case it transpires from the record that the petitioners being successful in both the written and viva voce examination the final result was published on 27.11.2018 and they obtained certificates and according to Rule 10 of Bid himala 2006 the certificates issued in favour of them by the NTRCA have already lost their validity and as observed earlier by this Division that the NTRCA is not the appointing authority rather the concerned Managing Committee or Governing Body of the non-government educational institution is the appointing authority in case of recruitment of teachers in the non-government educational institutions. The appointing authority as an employer has a discretion to fill up all the posts or not. Therefore, the writ-petitioners are not entitled to be appointed as prayed for in the writ petition and the High Court Division did not commit any illegality in discharging the Rule and as such no interference by this Division is warranted in this regard.

62

Civil Petition 4234/2018
(Civil Petition 4234/2018)

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The Director General, Directorate of Primary Education, Mirpur-02, Dhaka
-vs-
Rahima Akter and others

In the instant case, the writ petitioners-respondents have failed to prove that they were legally appointed by the school authority and their names were recommended by the উপজেলা যাচাই-বাছাই কমিটি and, as such, no legal and vested right has been created in favour of the writ petitioners to get appointment in the nationalized primary school.

63

Civil Petition 762/2023
(Civil Petition 762/2023)

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Md. Nasirul Alam and others (in C.P.No.762 of 2023)
Bakhteyar Ahmed and others (In C.P No.758 of 2023)
-vs-
The Government of Bangladesh and others (In Both the cases)

In view of the Provision of Section 8(3)(Gha) of the ইট প্রস্তুত ও ভাটা স্থাপন (নিয়ন্ত্রণ) আইন, ২০১৩ the concerned Hill District পরিবেশ উন্নয়ন কমিটি has been assigned to select/fix designated area for establishment of brickfields.

64

Civil Appeal 10/2017
(Civil Appeal 10/2017)

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Muntachir and others
-vs-
Ruposhi Begum and others

If we consider the above propositions of law coupled with the attending facts and circumstances of the present case, in particular the pre-emptor Arif Miah is a co-sharer in holding No.459, we are of the view that the High Court Division did not commit any error in allowing the partial pre-emption as the same is permissible in law.

65

Criminal Appeal(A) 40/2018
(Criminal Appeal(A) 40/2018)

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Shamim Uddin
-vs-
The State

It is true that the said two eye witnesses were examined by the investigating officer after long lapse of time of the alleged occurrence. But it cannot be a sole ground to discard their evidence on the plea of belated examination by the investigating officer.

66

Civil Petition 3194/2022
(Civil Petition 3194/2022)

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Bangladesh, represented by the Secretary, Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka-1000 and others
-vs-
Deshbandhu Sugar Mills Limited, represented by its Managing Director, Kawadi, Charsindur, Palash, Narisingdi, Corporate Office: House No. 59, Road No. 27, Block No. K, Banani, Dhaka-1213

In view of the above Bidhimala there is no scope to issue any bonded warehouse license in favour of writ petitioner, particularly the home consumption bonded license. Because the writ petitioner does not fall within the category as mentioned in Bidhi 4(ক)-4 (ঙ).

67

Civil Appeal 65/2009
(Civil Appeal 65/2009)

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The President, Customs, Excise and Vat Appellate Tribunal, BTMC Building, 7-9 Kawran Bazar, Dhaka-1215 and others
-vs-
Chattala Industries Limited

When the intention of the legislature is clear, no consideration of expediency or possibility of abuse can be allowed to deviate from the natural consequences following the correct interpretation. Thus, the Court has no jurisdiction to exercise its discretion beyond the scope of law.

68

Civil Appeal 4/2013
(Civil Appeal 04/2013)

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University of Dhaka represented by the Vice-Chancellor and another
-vs-
Hafez Mohammad Jalaluddin Chy. and others

If we consider the facts and circumstances of the present case in the light of the above proposition of law then, we have no hesitation to come into a definite finding that the writ-petitioner, in fact, has been terminated from the service in the garb of clause-2 of the appointment letter.

69

Civil Petition 657/2023
(Civil Petition 657/2023)

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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)।

70

Civil Appeal 293/2019
(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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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.

71

Civil Appeal 125/2008
(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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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.

72

Civil Appeal 18/2019
(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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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.

73

Criminal Petition 55/2023
(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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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.

74

Civil Appeal 135/2012
(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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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.

75

Civil Petition 2413/2022
(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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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.

76

Civil Appeal 115/2009
(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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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.

77

Criminal Review Petition 55/2022

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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.

78

Criminal Appeal(A) 58/2019
(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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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.

79

Civil Appeal 113/2018
(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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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.

80

Civil Appeal 159/2018
(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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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.

81

Civil Appeal 446/2019
(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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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.

82

Civil Appeal 406/2019
((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
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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.

83

Criminal Appeal(A) 19/2017
((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
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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.

84

Criminal Appeal(A) 65/2015
(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
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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.

85

Civil Appeal 55/2003
((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.

86

Civil Petition 268/2018
(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.

87

Civil Appeal 336/2019
(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.

88

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

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Uploaded on : 28-FEB-23
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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.

89

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

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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.

90

Civil Appeal 35/2008
(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.

91

Civil Appeal 142/2008
(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.

92

Civil Appeal 362/2017
(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.

93

Civil Appeal 175/2018
(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

94

Criminal Petition 207/2022
(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

95

Civil Appeal 21/2011
(Judgment)

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Uploaded on : 05-JAN-23
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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.

96

Criminal Petition 793/2019
(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.

97

Civil Appeal 508/2017
(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.

98

Criminal Petition 738/2019
(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
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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.

99

Civil Petition 3676/2017
(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
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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.

100

Civil Appeal 602/2009
(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
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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.