Case Number Parties Short Description
1
Perfetti Van Melle Bangladesh Pvt. Ltd, a private Limited represented by its Managing Director vs Commissioner of Customs, Customs House, P. S. Bandar, Chattogram and others
The instant Rule is centering around the issue of passing order by the respondent No.2 on behalf of the respondent No.1 directing the proforma respondent No.4 City Bank Ltd. N.A. to encash the respective bank guarantee earlier furnished by the petitioner in connection with B/E No.C-1704911 dated 24.10.2021. Pending hearing of the Rule, the petitioner has preferred an appeal before the Tribunal concerned under Section 196A of the Customs Act, 1969 in compliance of the direction given earlier by this Court at the time of issuance of the instant Rule. However, with the disposal of the said appeal there remains no cause of action requiring adjudication in the instant Rule.
2
Md. Anisur Rahman-vs-Bangladesh Bank, represented by its Governor, Head Office, Bangladesh Bank Bhaban, P.S. Motijheel, Dhaka
The petitioner filed the instant writ petition seeking direction upon the Bangladesh Bank to exercise its jurisdiction as contemplated under Sections 45 and 49(1)(Cha) of the Bank Companies Act, 1991 to dispose of his application dated 12.06.2023 (Annexure-E) in connection with the respective loan liabilities. The petitioner has been able to obtain ad-interim order of stay of the auction process in question subject to payment of the respective amount within the prescribed period, but he did not comply with the same. Considering the above uncontroverted position of facts as well as consequent to default order this Rule is accordingly discharged with costs of Tk.1,00,000/-(Taka one lac) only to be paid by the petitioner to the respondent-bank within a period of 3(three) months from the date of receipt of the copy of this order.
3
China Bangladesh Electronics Private Ltd vsNational Board of Revenue and others
Considering the above, it can clearly be discerned that in the absence of any pending demand at the relevant time, directing the Commissioner by the authority concerned of National Board of Revenue to take necessary steps towards freezing the respective bank accounts of the petitioners along with locking their BIN, is without jurisdiction. The impugned order further fails for having been issued by the authority concerned of the National Board of Revenue, who is not a “j§mÉ pw¬k¡Se Ll LjÑLa¡Ñ ” as defined in Section 20 of the Act, 1991. In this regard, the categorical contention of the learned Assistant Attorney General appearing of the respondent concerned is that no final order of freezing the respective bank account or locking the respective BIN of the petitioners have been passed. Rather, by the impugned order a direction was given upon the Commissioner concerned to take necessary steps pursuant to the context as provided therein; hence, this Rule is liable to be knocked down as being pre-mature. Said contention of the learned Assistant Attorney General is a misconceived one, for, within the four corners of the VAT Act, 1991, the Legislature has not empowered the National Board of Revenue to intervene in the matter of locking BIN or freezing the respective bank account by giving direction to that effect except the contexts as prescribed under Sections 43 and 44 of the said Act, 1991. The impugned order further fails for having not complied with the requirements as prescribed under Rule 43 of the VAT Rules, 1991 In view of the above, we have no manner of doubt to find that the impugned order issued by the authority concerned of the National Board of Revenue giving direction upon the Commissioner concerned to take necessary steps with regard to locking BIN or freezing the respective bank accounts of the petitioners is liable to be struck down for having been issued without lawful authority and hence, of no legal effect.
4
Danish Foods Limited vs Government of the Peoples Republic of Bangladesh, represented by it Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka and others
Vide Section 83A of the Customs Act, 1969 the customs authority can make a demand for payment of short levied duties upon making amendment of the assessment done earlier. However, fact remains that said provision does not contain the requirement to issue a show cause notice prior to issuance of making said demand.<> In the case of Musa Bhuiyan (Md) -Vs- Commissioner of Customs, Dhaka reported in 23 BLC-662, one of the Benches of this Division has categorically observed that prior to making a demand which has the effect of enhancement of duties, principles of natural justice is required to be complied with, by issuing a show cause notice for amendment of assessment and to give personal hearing to the person concerned.<> Said observations and findings are still in operation. In the instant case, the impugned demand notice dated 22.06.2017 has been issued by the customs authority making amendment of assessment under Section 83A with direction upon the petitioner to deposit the required amount as short levied duties, but without complying with the principles of natural justice.
5
Md. Amdad Ali @ Md. Emdad Ali vs Bangladesh Bank, represented by its Governor, Head Office, Bangladesh Bank Bhaban, P.S. Motijheel, District-Dhaka and others.
In view of the above, there is no doubt to find that the petitioner on similar issue earlier filed three other writ petitions bearing Nos.16575 of 2017, 13566 of 2018 and 2205 of 2021 including the present one challenging the auction process initiated by the respondent bank under Section 12(3) of the Artha Rin Adalat Ain, 2003 for auction sale of the mortgaged property of the petitioner which has been claimed by the respondent bank as collateral security for recovery of the defaulted loan amount. However, on every occasion, except writ petition No.13566 of 2018 which was not even moved before this Court, though the petitioner has been able to obtain ad-interim order of stay of the auction process subject to payment of the respective amount within the prescribed period, but on every occasion he did not comply with the same. Further fact remains that while filing the instant writ petition the petitioner suppressed the facts of filing two other writ petitions bearing Nos.16575 of 2017 and 13566 of 2018 on similar issues and based on similar contentions respectively.
6
Kutir Nirman Kousholi Ltd vs Customs, Excise and VAT Appellate Tribunal, Dhaka and others
It is an admitted position of facts that challenging the adjudication order dated 05.12.2022 passed by the Commissioner, Customs, Excise and VAT Commissionerate, Dhaka, the respondent No.2 (Annexure-E), the petitioner as appellant preferred an appeal before the Customs, Excise and VAT Appellate Tribunal, Dhaka, under the VAT and Supplementary Duty Act, 2012. However, in preferring the appeal before the Tribunal a delay of 2(two) months 23 (twenty three) days have occurred due to the reason of not being informed within time. The Tribunal concerned ultimately dismissed the appeal having not been convinced about the cause of delay so has occasioned while preferring the appeal. The power to condone the delay by the Tribunal is discretionary. However, taking into consideration of the fact that for dismissal of the said appeal the petitioner has become non-suited we are inclined to interfere in the matter for the cause of justice, equity and fair play.
7
Md. Lokman Hossain vs The Commissioner of Customs, Excise and VAT Commissionerate, Dhaka (South), 160/A, IDEB Bhaban, Kakrail, Dhaka and others
No affidavit in opposition has been filed by the respondent concern controverting the said assertions so made in the instant writ petition. In the absence of any supporting documents with affidavit from the respondents-concern the averments so made by the petitioner remain uncontroverted. Consequently, this Court finds that without serving final demand under Section 55(3) of the VAT Act, 1991 and without complying the requirements as provided under Section 56 of the VAT Act, 1991 read with Rule 43 of the VAT Rules, 1991 issuing the impugned order dated 28.06.2018 by the respondent No.1 directing the respondent No.3 to freeze the respective bank account of the petitioner is liable to be declared to have been passed without lawful authority; hence, has no legal effect.
8
Al Amin vs Election Appellate Tribunal and others
In order to challenge the order of re-counting of ballot papers of the respective election for the post of Counselor of the Pourasava in question the only contention being placed by the petitioner is non-compliance of Rule 62(2) which is merely a procedural compliance to be made by the Tribunal by passing necessary order to that effect.
9
Major General (Retd.) Md. Sarwar Hossain and another vs Bangladesh Securities and Exchange Commission (BSEC), Dhaka and others
The rules of natural justice, however, have a definite meaning in law and their content are well established. Nonetheless, these rules yields to change with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible, as has been observed in the case of Union of India vs. Tulsiram (1985) 3SCC 398. In the said case further it has been held that the audi alteram partem rule can be excluded when a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action; or where the nature of the action to be taken, its object and purpose and scheme of the relevant statutory provision warrant its exclusion; or importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands. Considering the given circumstances of the case, non-compliance of the rules of natural justice prior to issuance of the impugned Directives cannot be found unlawful. In that view of the matter, question of violation of the respective fundamental rights, as has been alleged by the petitioners, does not arise. In view of the context as is prevalent in the company it is, thus, apparent that the Commission had exercised its independent supervisory power under Section 20A of the Ordinance by issuing the impugned Directives dated 22.03.2023 (Annexure-A of writ petition No. 3912 of 2023) with the restructure of the Board of Directors of the company so far Independent Directors and one nominee Director are concerned for the sole purpose i.e., for smooth running of the company and for the greater interest of its general investors. Under the circumstances, the intervention of the Commission under Section 20A of the Ordinance, 1969 is found justified.
10
Md. Anisur Rahman vs Government of Bangladesh, represented by the Secretary, Financial Institution Division, Ministry of Finance, Bangladesh Secretariat, Dhaka
The petitioner filed the instant writ petition challenging the auction process initiated by the respondent bank under Section 12(3) of the Artha Rin Adalat Ain, 2003 for auction sale of the mortgaged property which has been claimed by the respondent bank as collateral security for recovery of the defaulted loan amount. The petitioner has been able to obtain ad-interim order of stay of the auction process subject to payment of the respective amount within the prescribed period, but did not comply with the same.
12
Sun Power Ceramics Company Ltd vs The Customs, Excise and VAT Appellate Tribunal, Dhaka and another
13
Md. Shah Alam vs The Government of Bangladesh Ministry of Finance, represented by the Secretary, Bangladesh Secretariat, Ramna, Dhaka and others
14
Sun Power Ceramics Company Ltd vsThe Customs, Excise and VAT Appellate Tribunal, Dhaka and another
15
Shah Amanath Traders vs National Board of Revenue and others.
16
Sun Power Ceramics Company Ltd vs The Customs, Excise and VAT Appellate Tribunal, Dhaka and another
17
Vitalac Dairy and Food Industries Limited vs National Board of Revenue and others.
amendment of assessment can be made invoking Section 83A of the Act, 1969. At the same time vide Section 32(3) the Legislature has empowered the Customs authority to make demand of short levied duties which could not be realised earlier at the time of assessment of goods due to inadvertence, error or misconstruction, but subject to issuance of show cause notice. Thus, it can clearly be discerned that the perspective of both Sections 32(3) and 83A are similar, but consequences are all together different, for, Section 83A has not been identified as a penal provision; whereas, for violation of Section 32 of the said Act Customs authority is empowered to impose penalty three times the amount claimed to have been less paid under clause (14) of the Table of Section 156(1) of the Act, 1969. In view of the above observations and findings, we are opinion that no illegality has been committed by the respondent concerned while making demand of short levied duties upon the petitioner under Section 83A of the Act, 1969. In that view of the matter making demand of Tk.9,72,816.28/- as less paid duties under Section 83A for having released the goods under wrong H.S. Code does not suffer from any illegality requiring interference by the Court.
18
Kutir Nirman Kousholi Ltd. vs Customs, Excise and VAT Appellate Tribunal, Dhaka and others.
It is an admitted position of fact that challenging the adjudication order dated 05.12.2022 (Annexure-E) passed by the Commissioner, Customs, Excise and VAT Commissionerate, Dhaka, the respondent No.2, (Annexure-E), the petitioner as appellant preferred an appeal before the Customs, Excise and VAT Appellate Tribunal, Dhaka, under the VAT and Supplementary Duty Act, 2012. However, in preferring the appeal before the Tribunal a delay of 2(two) months 23 (twenty three ) days has occurred due to the reason of not being informed within time. The Tribunal concerned ultimately dismissed the appeal having not been convinced about the cause of delay so has occasioned while preferring the appeal.
19
Spectra Sweaters Limited vs National Board of Revenue and others
It is the established principle of law that the VAT authority cannot issue demand notice directly without following the provision of Section 55 of the Value Added Tax Act, 1991.
20
Md. Amjad Hossain Molla vs Bangladesh Bank and others
Section 49(1) of the Artha Rin Adalat Ain, 2003
21
Al-Islam Trust Sribordi vs Bangladesh represented by the Secretary, Secondary and Higher Education, Bangladesh and others
From the above quoted provisions of law it is apparent that subsequent to submission of the list of the respective members of the new executive committee of the petitioner Society the Act of 1860 does not require the Registrar of the Joint Stock Companies to give approval thereof, as claimed by the respondent No.7. In the given context, instead of forwarding the list of the new executive committee of the Society on the plea of not being approved by the Registrar of the Joint Stock Companies forwarding a different list without prior approval of the petitioner Society is unlawful. Accordingly, we have no manner of doubt to find that the impugned approval so has been given vide order dated 17.04.2023 under the signature of the respondent No.6 on behalf of the respondent No.2 basing on the list provided by the respondent No.7 is in flagrant violation of Regulation 49; hence, it is liable to be knocked down.
23
Md. Syed Hossain vs Customs, Excise and VAT Appellate Tribunal, represented by its President, 4th Floor, Jiban Bima Bhaban, 10, Dilkusha Commercial Area , Dhaka-1000
To pay the evaded amount of VAT to the tune of Tk.7,21,77,884/- with interest for an amount of Tk.1,94,88,029/- along with penalty of Tk.14,43,55,768/- under Section 73(2) of the VAT and Supplementary Duty, 2012.
24
Wazir Mohammad Khan vs Government of Bangladesh, represented by the Secretary, Finance Division, Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka and others
The petitioner filed the instant writ petition challenging the auction process initiated by the respondent bank under Section 12(3) of the Artha Rin Adalat Ain, 2003 for auction sale of the mortgaged property which has been claimed by the respondent bank as collateral security for recovery of the defaulted loan amount. The petitioner has been able to obtain ad-interim order of stay of the auction process subject to payment of the respective amount within the prescribed period, but did not comply with the same.
25
Md. Ali Islam and others Vs Government of the People’s Republic of Bangladesh represented by the Secretary, Technical and Madrasah Education Division, Ministry of Education and others.
“Deputation” is deputing an employee (commonly referred to as the deputationist) of one department or cadre or even an organization (commonly referred to as the parent department or lending authority) to another department or cadre or organization (commonly referred to as to borrowing authority) on a temporary basis. After the expiry of the period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules: State of Punjub Vs. Inder Singh: (1997) 8 SCC 372. The deputationist while on deputation will remain substantively attached to the parent department: Ashok Kumar Ratilal Patel Vs. UOI, (2012)7SCC 757. However, there is no legal bar in filling up the posts by deputationist and providing a quota for them when the induction is from more than one source and in such case the deputationist, so appointed, retains his lien in the parent department: Pk Sandha Vs. Shiv Raj V Patil, (1997) 4 SCC 348. Thus, it can clearly be discerned that recruitment to a service may be made on a deputation basis. But in such cases, the deputation does not result in permanent retention in the service to which the employee is deputed. It is therefore, not recruitment in its true import and significance, for, the employee continues to be a member of the parent service/organization from where he is recruited on deputation. Petitioner Nos.1 and 2 are admittedly the members of BCS (General Education) Cadre. However, prior to their deputation at BMTTI in the post of Assistant Professor they were functioning as Assistant Professor in the respective colleges under the Directorate of Secondary and Higher Education. Since they are not the permanent officers of BMTTI recruited under the respective service Rules of BMTTI but are on deputation at BMTTI for the respective period temporarily retaining their lien in the parent department they have no legal right to challenge the BMTTI Service Rules, 2021 with a view to keep the respective posts reserved and to be filled up only by the officers of BCS (General Education) Cadre on deputation.
26
Md. Amdad Ali @ Md. Emdad Ali vs Bangladesh Bank, represented by its Governor, Head Office, Bangladesh Bank Bhaban, P.S. Motijheel, District-Dhaka and others.
27
Md. Ali Islam and others-vs-Government of the People’s Republic of Bangladesh
28
Professor Zaheer Al-Amin -vs-Bangladesh represented by the Secretary, Ministry of Health and Family Welfare, Government of Peoples Republic of Bangladesh, Secretariat Bhaban, Ramna, Dhaka-1000
The legal position is well settled that power of judicial review under Article 102 of the Constitution of the People’s Republic of Bangladesh in cases of imposition of punishment of the delinquent person is not on merits of the impugned decision. Moreso, while exercising this power it is not open to this court to reappreciate and reappraise the documents led before the inquiry committee and examining the findings recorded by the said committee as a court of appeal. This court is to see whether there was non-observance of the principle of natural justice, denial of reasonable opportunity or the punishment so has been imposed is totally or shockingly disproportionate to the proven context. As observed earlier, prior to issuance of the impugned order of suspension the petitioner was asked to give reply on the allegations on two occasions; one, immediate after receipt of complaint i.e. on 03.06.2020 (Annexure-C) and another, on 29.09.2021 (Annexure-D) before the Disciplinary Committee. Later, vide show cause notice dated 31.10.2022 (Annexure-E) he was again given opportunity to give reply to the allegations so brought against, in order to defend his part of the case. In the given facts and circumstances, absence of service of notice at the stage of investigation does not go to negate the admitted fact that the petitioner did conduct surgery on the right parotid gland without taking written consent and again conducted surgery on the left parotid gland on the same date. It also cannot dislodge the fact that for non-compliance of service of notice at investigation stage the patient did not suffer. Considering the context of the case and position of law we have no manner of doubt to find that raising the plea of non-service of notice during the course of investigation and thereby claimed to have been prejudiced for having been deprived of getting reasonable opportunity to defend his case, falls through. Moreover, in view of the facts and circumstances of the instant case the impugned punishment of suspension of registration cannot be termed as shockingly disproportionate to the findings of the authority concerned. In view of the above, it is accordingly found that prior to issuance of the impugned order of suspension dated 16.11.2022 there was due observance of the basic principle of natural justice with reasonable opportunity so has been provided to the petitioner to defend his case.
29
Md. Abu Sayeed Miah and others -Vs-Bangladesh Election Commission, represented by the Chief Election Commissioner and others
Nowhere within the four corners of Section 6(3), the Legislature has bound the Election Commission to endorse the “proposed change of areas” while inviting the inhabitants of the respective constituency to raise objection or place their opinion in support thereof. The requirement of law under Section 6(3) is to endorse “proposed area” to be included in the respective territorial constituency. Moreso, with the use of the words “ কমিশন, তদ্‌কর্তৃক প্রাপ্ত আপত্তি এবং পরামর্শ, যদি থাকে, শুনানি গ্রহণ করিয়া এবং ক্ষেত্রমত, বিবেচনা করিয়া উপযুক্ত মনে করিলে উপ-ধারা (৩) এর অধীন প্রকাশিত প্রাথমিক তালিকায় প্রয়োজনীয় সংশোধন করিয়া,, ................” in Section 6(4), the intention of the Legislature becomes abundantly clear that change of area, if so requires, is to be endorsed by the Election Commission only after hearing the objection/receiving opinion and considering other required documents on administrative convenience, upon making necessary amendment of the preliminary list published under Section 6(3) of the Act, 2021.
30
Sheikh Saeem Ferdous -Vs-Bangladesh, represented by the Secretary, Rural Development and Co-operatives Division, Ministry of Local Government, Rural Development and Cooperatives, Bangladesh of the Peoples Republic of Bangladesh, Bangladesh Secretariat, Dhaka and others.
Considering the facts and circumstances of the case and the observations so made above it is categorically found that: (a) While giving promotion to respondent Nos.5-9 vide the impugned order dated 06.08.2019 (Annexure-D) the Academy did not supersede the petitioner; (b) Admitting the fact that the petitioner is senior to respondent Nos. 5-9, but considering his service record including ACR the Academy did not consider his promotion; (c) Considering outstanding performance and 15 (fifteen) years work experience in the respective field of the Academy respondent No.5 was appointed in the post of Deputy Director relaxing his age bar vide clause (4) of the circular dated 22.10.2011 (Annexure-3); hence is found lawful; (d) Giving promotion to respondent No.6 to the post of Joint Director having served 5 (five) years in the post of Deputy Director with more than 5 (five) years service experience while giving appointment in the post of Deputy Director, in total, having 10 years service period, is found lawful; and (e) Last but not the least, since adverse remarks so made against the petitioner in his ACR for the year 2017 and 2018 respectively, were not done in due compliance of the respective Rules and regulation and now, are withdrawn; hence, the petitioner is now entitled to be considered for promotion to the post of Joint Director in due compliance of law.
31
M/S Barnali Printers Ltd.-vs-Commissioner (current charge), Customs, Excise and VAT Commissionerate, Dhaka and others.
32
Md. Raju Hossen-vs-Bangladesh Securities and Exchange Commission (BSEC) and others
Since Main Market Platform and SME Platform, created by the Commission upon framing respective Rules, are based upon materials and having substantial difference with reasonable relations between the objects and the persons dealt with and the objectives sought to be achieved, said classification is found reasonable. That being so, imposition of restriction by the Commission in the SME Platform in exercise of power as provided under Section 20A of the Ordinance, 1969 cannot be said to have offended Articles 27 and 29 of the Constitution. Moreover, in view of the assertions of the Commission and also, considering the context of the impugned notification being issued for the greater interest of the general qualified investors, question of violation of Articles 40 and 42 of the Constitution does not arise at all. Hence, we do not find any reason requiring interference in the impugned restriction while exercising power under Article 102 of the Constitution.
Further, fixing “Floor Price” for the Main Market vide order dated 28.07.2022 (Annexure-C) was on temporary basis considering extranuating circumstances. Moreover, giving open “Floor Price” for SME Platform is the absolute discretion of the Commission being exercised under Section 20A of the Ordinance, 1969. As such, seeking direction by the petitioner in the form of mandamus for open “Floor Price” for SME Platform on the context that “Floor Price” is imposed in the Main Trading Platform (Main Market ) vide order dated 28.07.2022 (Annexure-C) upon the movement of share price, is not maintainable.
33
Md. Abdur Rahim Bhuaya-vs-The Government of the Peoples Republic of Bangladesh, represented by the Secretary, Ministry of Local Government and Rural Development, Bangladesh Secretariat, Ramna, Dhaka and others.
The petitioner having failed to show violation of any provision of law being allegedly committed by the Election Appellate Tribunal, Jamalpur while passing the impugned judgment and order dated 24.08.2022 as such, he is not entitled to seek equitable relief under Article 102 of the Constitution on the issue of contradiction in counting votes by the Election Tribunal and Election Appellate Tribunal concerned respectively, for being based squarely on disputed question of facts.
34
Arif Hossain-vs-Commissioner of Customs, Customs House, P.S.-Bandar, Chattogram and others.
It is the settled principle of law that the remedy given under writ jurisdiction is equitable; hence, the applicant must come with clean hands. In view of the decision of our apex Court in Oriental Bank vs. A B Siddiq (2008) 13 BLC (AD) -144 the improper conduct with regard to the matter in controversy may disentitle him to get equitable relief.
In the present case, proceeding under Section 83A of the Act, 1969 was initiated with the issuance of show cause notice on 15.01.2018 within 6(six) months of assessment; the petitioner with intention did not respond to the same. Said improper conduct of the petitioner disentitles him from taking the plea of limitation in order to strike down the reminder notice issued upon him subsequently on 10.10.2020 (Annexure-C).
35
Md. Hasan Patwary-vs-The Chief Election Commissioner and others.
In view of the above findings, since concealment of facts of disqualification of the petitioner tantamounts to fraud as such, it vitiates everything. In that view of the matter, seeking equitable relief by the petitioner for a declaration that publication of subsequent gazette notification dated 06.01.22 by the respondent No.1 excluding the name of the petitioner as elected Member, is not maintainable in the eye of law.
Before we part, it is pertinent to observe that every election process involves huge finance involving public money and with the publication of election schedule the officers concerned are deputed in the respective fields to discharge their respective official designated duties faithfully with proper application of mind. But when they fail, miscarriage of justice occurs by causing injury to the concerned affected persons. Present case is a glaring instance of failure of professional duties of the respondent No.4, which in the given context is unfortunate and hence, deprecated.
36
Md. Arifuzzaman Sarker-vs-Government of People’s Republic of Bangladesh, represented by Secretary Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka and others.
Since the impugned order dated 15.01.2020 has been issued without the recommendation of the Selection Committee hence, we have no manner of doubt to find that it has no mandate of law. Rather, said order is a glaring instance of abuse of the administrative power of the respondent No.2. Moreover, because of issuance of the said questionable impugned order the petitioner has been deprived of his right to be considered for promotion.
In view of the above findings that the impugned order of promotion has been issued by the respondent No.2 unlawfully hence, taking the plea that said order having not been acted upon with the approval of the Board and as such, is premature, is nothing but a device being resorted to by the said respondent to cover up the said questionable order which is under challenge in the instant Rule. Accordingly, the submissions so made by the respondents concerned to that effect, falls through.
37
Md. Abdul Hye Akhanda vs Secretary, Ministry of Local Government, Rural Development and Co-operatives, Bangladsh Secretariat, Shahbagh, Dhaka and others
Since proceeding under Section 13Ka of the Ain, 1998 does not empower the respondent-government to suspend to the petitioner under Section 13Kha as such, in the absence any proceeding initiated under Section 13 and consequently, without having any materials before the government on the date of passing the order of suspension, to form an opinion to that effect render issuance of the impugned order of suspension by the respondent No.1 dated 13.04.2021 (Annexure-K to the supplementary affidavit) nugatory in the eye of law.
38
City Edible Oil Limited and others vs Government of Bangladesh represented by it’s Secretary, Ministry of Finance, Internal Resource Division, Bangladesh Secretariate, Ramna, Dhaka and others.
Prior to taking decision by the respondent-government under Section 44(4)(b) of the Ordinance, 1984 consultation with and clearance of BEZA, constituted under the Act No.42 of 2010, was essentially required in order to exclude special privileges given to those companies who are situated and have started commercial operations in the respective economic zone. Pursuant to the independent decision of the respondent No.1 impugned S.R.O. No.104 dated 25.03.2020 has been issued under Section 44(4)(b) of the Ordinance, 1984. Not only that, vide the said impugned S.R.O. No.104 the respondent-government has picked up only those companies situated in the economic zone who are producing 7(seven) different categories of products, for the purpose of excluding them from getting the benefit of tax exemption without expressing a single reason whatsoever for taking the said impugned decision. At the same time vide the said S.R.O. No.104 the respondent-government has retained the privilege of tax exemption for all other companies situated in the said zone. Said act of the respondent-government is a glaring instance of pick and choose as well as executive highhandedness and arbitrariness; hence, it cannot sustain in the eye of law.
39
Perfetti Van Melle Bangladesh Pvt. Ltd. vs Customs, Excise and VAT Appellate Tribunal and others
When an appeal is preferred before the Tribunal under Section 196A and or receipt thereof a date is fixed for statutory deposit as per requirement of Section 194(1) subject to giving notice to the appellant it shall pass necessary order either dismissing the appeal without affording further time, or may extend time for the said deposit before substantive hearing of the appeal or even dispense with such deposit under the second proviso to Section 194(1) either conditionally or subject to such conditions as it may deem fit to impose. Prior to passing such order the Tribunal cannot hear and dispose of the appeal on merit.
40
Md. Imran Hossain vs Customs, Excise and VAT Appellate Tribunal others.
41
Kazi Md. Kamrul Islam vs The Registrar, Department of Patents, Designs and Trade Marks and others.
It is the established principles of law that under special law when time period has been prescribed for preferring appeal Section 5 of the Limitation Act, 1908 cannot be applied unless incorporated by the Legislature in express terms. Trade Mark Act, 2009 being a special law and having prescribed specific period for preferring appeal before the High Court Division as such, in the absence of incorporation of Section 5 of the Limitation Act, 1908 it shall have no manner of application for condoning delay in preferring appeal under Section 100(2) of the Act, 2009.
42
Md. Abdul Aziz and others vs Bangladesh, represented by the Secretary, Cabinet Division, Government of the People’s Republic of Bangladesh Secretariat, Ramna Dhaka and others
The process of removal of Chairman, Vice Chairman or any Member of the Upazilla Parishad as provided under Section 13Ka of the Ain, 1998 is a unique feature of the Ain, 1998 giving prerogative to the elected members of the Upazilla Parishads with required number of endorsement to initiate proposal or “Motion of no confidence” against the person concerned, should he failed to discharge his respective duties and functions, by adopting due process of law, as prescribed under the statute. Taking into consideration of the context of Section 13Ka and position of law the assertion of the Chairmen and other Members of the Upazilla Parishads as to being impeached and removed by the unelected person, is not maintainable in the eye of law;

Empowerment of the government to suspend the Chairman, Vice Chairman or the Member of Upazilla Parishad under Section 13Kha in a pending proceeding initiated under Section 13 is subject to formation of opinion based on the materials gathered by the enquiry officer following the procedures as provided under Rules 3 and 4 of the Rules, 2016;
43
Harun-Or-Rashid Howlader and others Vs Government of Peoples Republic of Bangladesh, represented by the Secretary, Cabinet Division, Bangladesh Secretariat, Ramna, Dhaka and others
Vide the impugned amendment of Section 33 of the Ain, 1993 the Parliament has given the UNOs to administer all administrative and financial powers of the Upazilla Parishads without making them accountable to the respective Upazilla Parishad, which is composed of the elected representatives and is the product of Articles 59 and 60 of the Constitution; hence, comes in direct conflict with Articles 59 and 60 of the Constitution as well as the overall scheme of the Ain, 1998. Accordingly, Section 33(as amended vide Act No. 21 of 2011) is void in view of Article 7(2) of the Constitution;
44
Sirajul Haque alias Sirajul Haque Howlader and others VS Zulekha Begum and others
Question of examination of the signature of Rustom Howlader through expert was reasonably raised from the side of the defence. According to the provisions laid down in sections 101 and 103 of the Evidence Act, the entire onus was upon the plaintiffs to prove that the signatures given by Rustom Howlader in all the documents are false because it is their specific case that Rustom Howlader never appeared in public due to his serious ailment and indisposition and blindness and even he was to be taken to the toilet by somebody else and remained bed ridden from 1980 until his death. Plaintiffs had to take resort to expert opinion in order to discharge their initial onus under section 101 of the Evidence Act to prove that those impugned documents were executed not by Rustom Howlader but by an imposter with a scheme to grab the property and Rustom Howlader was completely unable to perform his own affairs due to his serious illness. Law says when the initial onus is discharged by the plaintiff the onus then shifts upon the defendants to show the contrary.
.......
Now question arises whether D.W. 1 being wife of defendant No. 1 holds the same status of defendant No. 1 while deposing in the suit. Question of adverse presumption shall not arise if DW 1 holds the same position. Section 120 of the Evidence Act provides that husband instead of wife or wife instead of husband shall be competent witness. So according to the facts and circumstances of the instant case section 120 shall prevail over section 114(g) of the Evidence Act and the question on adverse presumption as argued does not arise.
......
The admission of Rustom Howlader that he executed those documents cannot be avoided when plaintiffs could not establish a definite and clear case on Rustom Howlader’s sickness. The execution is admitted and plaintiff had no knowledge on execution or passing of consideration being third party to the document. Plaintiffs cannot question about the consideration because it was between parties to the document. The transferee is to prove the payment of consideration when the transferor challenges the same. In the instant case, if the plaintiffs could prove by cogent and credible evidence that Rustom Howlader was seriously ill and blind from 1980 till his death, in that case the onus would lie upon the defendant to prove the payment of consideration.
45
Anti-Corruption Commission VS Md. Zahirul Islam and another
46
Barrister Md. Aminul Hoque Vs The State and another
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Md. Waliullah Apu Vs. Government of the People’s Republic of Bangladesh and others
Taking notice of the above scenario, we are also constrained to direct the 1) Secretary, Cabinet Division, 2) the Secretary (সুরক্ষা ও সেবা), Ministry of Home Affairs and all the 3) District Magistrate to take necessary steps for providing the certified copies of the documents and order passed by the Executive Magistrate acted under Mobile Court Act,2009 to the concerned person/convict within a period of 05(five) days from the date of receiving the application for the same
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মো: মাসুদুল হক মাসুদ বনাম রাষ্ট্র
উপরোক্ত আলোচনা এবং সার্বিক অবস্থা বিবেচনায় আদালত আদেশ প্রদান করছে যে, মাদকদ্রব্য নিয়ন্ত্রন আইনের ধারা ৪৪ অনুসারে ট্রাইব্যুনাল প্রতিষ্ঠা কিংবা গেজেট প্রকাশের মাধ্যমে বিকল্প আদালতকে ক্ষমতা না দেয়া অথবা ট্রাইব্যুনাল সংক্রান্ত আইনের বিধান সংশোধন না হওয়া পর্যন্ত মাদক দ্রব্য নিয়ন্ত্রন আইন ২০১৮ এর অধীনে দায়েরকৃত সকল মামলার বিচারিক কার্যক্রম ফৌজদারী কার্যবিধি ধারা ৫(২) অনুসরনে ঐ কার্যবিধির ২য় তপসিলে উল্লেখিত “অন্যান্য আইনসমূহের অধীনে অপরাধ (offences against other laws)” বিধান অনুযায়ী পরিচালিত হবে।
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Meda Natun Hati Masthyajibi Samabay Samity Limited Vs Government of Bangladesh and others
সরকারি জলমহাল ব্যবস্থাপনা নীতি ২০০৯ It appears that the Rules, 2009 is silent about what criteria should be followed in ascertaining such distance where more than one samity apply for getting lease. But the preamble of ‘The Rules, 2009’ made it clear that the same has been promulgated with a view to giving preference to the real fishermen in granting lease which along with other provisions of the Rules, 2009 suggest that the riparian samity of fishermen of which most of the members live closer to the Fishery would get priority in getting lease. A fishermen community may live far off from the Fishery but for some other reasons may set up its office at a place close to the Fishery. If nearness of the office is taken to be the standard of measuring comparative distance of the contending societies unfair competition in setting up offices nearest to the fisheries is bound to follow to the detriment of the purpose of the law. This is a proposition which cannot be accepted in any view of the matter.(para 15)