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51

Civil Appeal /2008
(From the judgment and order dated 20.11.2005 passed by the High Court Division in Civil Order No.4434 of 2005)

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The Additional Deputy Commissioner
vs
Md. Kayem Ali and others

The order of the trial Court rejecting the prayer for temporary injunction was an appealable order as per provision of Order XLIII Rule 1 sub-Rule (r) of the Code of Civil Procedure. Since there is specific provision of law for preferring appeal and that revisional application before the District Judge was misconceived one, the learned District Judge rightly rejected the application for ad-interim injunction. The High Court Division, without consideration as to whether civil revisional application was at all maintainable in the Court of District Judge or not and that the suit itself was barred under section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, or not erroneously directed the parties to maintain status-quo in respect of the suit land.

52

Civil Appeal /2014
(From the judgment and decree dated 18.05.2009 passed by the High Court Division in First Appeal No. 271 of 1998)

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Din Mohammad
vs
Mofizur Rahman Miah and another

In a given case whether a decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and evidence on record. No Court can be regarded as powerless to recall its own order if it is convinced that order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. Since the last Court of facts upon proper appreciation of the evidence of record held that notice upon the defendant No.1 of the said suit was not duly served and plaintiff of the said suit obtained decree by practising fraud upon the Court, we are of the view, that it rightly set aside the ex- parte decree and directed the trial Court to allow the defendant of the said suit to file written statement upon restoring the Title Suit No.5 of 1996 to its original file and number.

53

Civil Appeal /2017
(From the judgment and order dated 09.08.2015 passed by the High Court Division in Writ Petition No.8202 of 2014)

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Feroz Alom being dead his heirs: Faridul Alam and others
vs
Syed Akhlaque Hossain and others

The writ petitioners filed instant writ petition challenging the auction notice issued by a private bank, against which, the writ petition is not maintainable. It further appears from the materials on record that Syed Mojammel Hossain, predecessor-in-interest of the writ petitioner Nos.1-4 and writ petitioner No.1 himself were the directors of the loanee company and they are the owners of the disputed property in respect of which, mortgaged deed was executed and registered in favour of the Bank and that they, being the owners of the case property, cannot be treated as third party mortgagor. The writ petitioners filed the instant writ petition on 07.09.2014 but they did not challenge the auction though the same was held at about 3(three) years before filing of the instant writ petition.

54

Civil Appeal /2009
(CIVIL APPEAL NOS. 170-171 OF 2009
From the judgments and orders dated 25.01.2001 passed by the High Court Division in Writ Petition Nos. 72 and 73 of 1998)

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Commissioner of Customs Excise and VAT, Customs, Excise and VAT Collectorate, Chittagong and others
vs
Abul Khair Steel Mills Ltd.

Fortified with the decisions as discussed above it is clear that the Tribunal shall only follow the procedure of the Custom Act only when the appeal presented to it with the required deposit under the VAT Act and with all the trappings of the custom Act as far as it is applicable. After filing of the appeal, it does not contemplate prevailing procedure of the appeal. That is to say requirement before filing to be construed as it is.

55

Civil Appeal /2012
(From the judgment and order dated 3rd of March, 2009 passed by the High Court Division in Civil Revision No. 982 of 2000)

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Government of Bangladesh, represented by the Deputy Commissioner, Gopalgonj and another
vs
Saleha Begum and others

Mokararee(মোকররী) right is nothing but a right of collecting rent on behalf of the superior landlord, which was not a tenancy or raiyati right and that right has been acquired by the Government after promulgation of State Acquisition and Tenancy Act.

56

Civil Appeal /2022
((From the judgment and order dated the 14th March, 2021 passed by a Division of the High Court Division in Writ Petition No.5474 of 2020))

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Paschimanchal Gas Company Ltd.
vs
Manticore Technologies Ltd. and others

The appellant never made any promise to supply the gas to the writ-petitioner and as such question of legitimate expectation does not arise at all by virtue of the license issued by the Bangladesh Energy Regulatory Commission for Generation of Electricity in Ishwardi EPZ. No vested and legal right has been created in favour of the writ-petitioner. As such the direction upon the writ-respondents by the High Court Division to provide gas connection to the writ-petitioners is beyond the scope of law.

57

Civil Appeal /2007
(From the judgment and decree dated 20.03.2004 passed by the High Court Division in Second Appeal No.83 of 1978.)

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Habiba Banu and others
VS
Aftabullah

It is well settled proposition of law that a contract cannot be enforced against a bonafide transferee for value who has paid his money in good faith and without notice of the original contract. This protection is based on the English equitable rule which allows a later legal title to prevail over an earlier equitable title in the circumstances of a particular case.
Since the last Court of facts and the High Court Division upon proper appreciation of the evidence on record held that the contesting defendants are bonafide purchasers without notice of alleged agreement for sale, we are of the view that the suit has been dismissed rightly.

58

Civil Appeal /2009
(From the judgment and order dated 29.04.2007 and 30.04.2007 passed by the High Court Division in Civil Revision No. 5369 of 2000)

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Md. Shafiullah Patwari
VS
Momin Mia and others

Since it has been observed by the appellate Court as well as High Court Division that the notice upon aforesaid pre-emption proceeding was not duly served upon one of the pre-emptees, we are of the view that the ex-parte order of pre-emption was fraudulent one as a whole. Ex-parte order which has been obtained by practising fraud cannot be sustained in law as a whole.
It is well settled principle that a decree or order obtained by playing fraud on the court is a nullity and non-est in the eye of law. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated and cannot be allowed to stand.

59

Civil Appeal /2016
(From the judgment and decree dated 02.11.2010 passed by the High Court Division in First Appeal No.519 of 1999)

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Laxmi Narayan Chowdhury
VS
Md. Harun Fakir

In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he asked the defendant No.1 specifically to perform the agreement pleaded by him but the defendant did not do so. It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement. It was the legal obligation to the plaintiff that he was, since the date of the agreement for sale, continuously ready and willing to perform his part of the agreement. If he fails to do so, his claim for specific performance must fail.

60

Civil Appeal /2008
(From the judgment and order dated 22.08.2007 passed by the High Court Division in Civil Revision No.1542 of 2001.)

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Md. Kamal Hossain and others
VS
Abdul Ahad and others

The trial Court as well as High Court Division in their judgments did not draw any such conclusion that plaintiff Azizan Bibi did not execute the kabla deed dated 23.10.1979, though it was the case of the plaintiff that defendant No.1 obtained her signatures on blank papers and created the kabla deed dated 23.10.1979 fraudulently. Since the plaintiff instituted the suit for cancellation of deed dated 23.10.1979, it is the duty of the plaintiff to prove that the sale deed was obtained fraudulently. None of the Court drew any conclusion that the plaintiff has been able to prove the allegation of fraud.
Since the Kabla deed dated 23.10.1979 was executed and registered, it is to be presumed that all the official acts were done accordingly.
The defendant Nos.1-2 instituted Title Suit No.1339 of 1981, in the 4th Court of the then Subordinate Judge, Dhaka against Government for declaration that the claim of the Government that the suit property is abandoned property was illegal and also for recovery of khas possession and the said suit was decreed on 02.03.1991 and upon execution of the said decree they took possession of the same. It was held by the Court of Settlement in Settlement Case No.80 of 1989 and 81 of 1989 dated 15.08.1995 that the property should not have been included in the list of abandoned properties and it ordered that the property was liable to be excluded from ‘Ka’ schedule of the abandoned building. The High Court Division was not justified in treating the said deed as void by assuming that the defendant appellants purchased the said land when the property was declared as abandoned property.

61

Civil Appeal /2014
(From the judgment and decree dated 26.05.2009 passed by the High Court Division in First Appeal No.120 of 2002.)

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Haji Mohammad Kutubul Alam
vs
Md.Gousuzzaman and others

The Civil Courts, subject to the provision of the law, have jurisdiction to try all suits of civil nature except the suit of which cognizance is either expressly or impliedly barred. Unless the relevant statute entails a provision expressly or indicates by necessary implication that the jurisdiction of the Civil Court is excluded to try the suit, the Civil Court has jurisdiction to try the suit. In this case, the plaintiff sought for declaration that the impugned deeds are void along with some other reliefs. Only Civil Court is authorised to declare whether a deed is fraudulent and void or not. It is settled principle that exclusion of jurisdiction of civil Court should not be readily inferred. The tests to be applied to decide whether or not the Civil Court has jurisdiction are as under:
(i) Is legislative intention of excluding jurisdiction of Civil Court explicit or clear by necessary implication?
(ii) Does the statute provide adequate remedy in case of grievance against the order made under the statute?
The moment a waqf is created, all rights of property pass out of the waqif and vest in the Almighty. The Mutwalli has no right in the property belonging to the waqf. His position is merely that of a superintendent or a manager. A Mutwalli has no power, without the permission of the Waqf Administrator to sell waqf property or any part thereof. Authority of giving permission of the waqf Administrator is not absolute. He must follow the provision of law, contents of waqf deed, jurisprudence build up in this regard and welfare of waqf estate. He cannot accord permission when it is apparent that such proposal for transfer may cause harm to waqf property itself, consequence of which is ultimate damage and destruction of the property and object of the waqf.

62

Contempt Petition(A) /2023

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Mohammad Harun-Or-Rashid
Vs
Syed Jahangir Alam

The contemnor in the instant case Syed Jahangir Alam has certainly committed contempt of court which cannot be viewed with impunity. In a very dirty and spiteful manner he had uttered those venomous words which do not call for any shred of sympathy far off to purge the same.
This hypocritical attitude which is ugly underbelly towards a judge of the Apex Court baffles us. Lest it turns into a horrendous repetition and fails to deter the public at large let us nip this unhealthy trend in the bud.

63

Civil Appeal /2015
((From the judgment and order dated 09.08.2011, passed by the High Court Division in Writ Petition Nos. 4758 of 2008, 4757 of 2008, 2687 of 2010, 2692 of 2010, 10535 of 2007 and 9426 of 2010 respectively.))

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Secretary, Bangladesh Textile Mills Corporation and others
vs
Nasrin Sultana and others

Rule 42A does not give any authority to rehear an appeal under rule 31 of the Tenancy Rules, 1955 by the concerned Settlement Officer after publication of the final record-of-rights, as the such publication is conclusive evidence (rule 35) and thus, in the instant cases the Settlement Officer has acted illegally and without jurisdiction in re-hearing the appeals repeatedly.

64

Civil Appeal /2016
((From the judgment and order dated 24th day of January, 2010 passed by the High Court Division in Civil Revision No. 2624 of 2005))

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Md. Abdul Hamid being dead his heirs: Md.Arju Hossain and others
vs
Mst. Sara Khatun and others

It is now well settled that the High Court Division in revisional jurisdiction has got the jurisdiction to interfere with the findings of fact of the courts below, if it finds error apparent on the face of record.

65

Civil Appeal /2015
((From the judgment and order dated the 24th day of January, 2012 passed by the Administrative Appellate Tribunal, Dhaka, in Administrative Appellate Tribunal Appeal Nos.270 of 2009 and 279 of 2009 respectively))

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Government of Bangladesh and another
vs
Md. Nazrul Islam Biswas

The current charge given by a gazette notification cannot be termed or treated that the concerned officer will perform only day to day routine work, rather on the strength of such notification he has been vested all the administrative and financial power to be done in accordance with rules of business. Said current charge cannot be equated as a stop gap arrangement.

66

Civil Appeal /2009
((From the judgment and order dated 27th day of July, 2006 passed by the High Court Division in Civil Revision No.104 of 2000))

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Uzzal Sarker
vs
Kutub Uddin and others

From the evidence, it reveals that to defeat the right of the pre-emptor the alleged transaction was made showing exchange. The High Court Division measurably failed to appreciate this aspect and thus, miscarriage of justice has been occurred.

67

Civil Appeal /2016
(From the judgment and order dated 08.05.2012 passed by the High Court Division in Civil Revision No. 3750 of 2009)

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Kohinur Begum
Vs
Most Majeda Khatun and others

In the plaint it has been categorically stated that on 09.05.1981 the pre-emptor came to learn the sale of the suit property when the opposite party No. 1 disclose the same which was corroborated by the P.W-1, P.W-2 and P.W-3. Being informed the pre-emptor filed the Miscellaneous Case on 06.07.1981 which is very much within the period of limitation. In view of above we hold that the trial court as well as the appellate Court below was correct in holding that the suit was not barred by limitation.

68

Civil Appeal /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.

69

Civil Petition /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.

70

Civil Appeal /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.

71

Criminal Petition /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.

72

Civil Petition /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.

73

Civil Petition /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.”

74

Criminal Petition /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.

75

Civil Petition /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.

76

Civil Appeal /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.

77

Civil Appeal /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.

78

Civil Review Petition /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.

79

Civil Petition /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.

80

Civil Petition /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.

81

Civil Appeal /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.

82

Criminal Appeal(A) /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.

83

Civil Petition /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).

84

Civil Appeal /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.

85

Civil Appeal /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.

86

Civil Petition /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)।

87

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

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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.

88

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

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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.

89

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

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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.

90

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

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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.

91

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

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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.

92

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

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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.

93

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

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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.

94

Criminal Review Petition /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.

95

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

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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.

96

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

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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.

97

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

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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.

98

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

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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.

99

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

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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.

100

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

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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.