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1

Civil Petition 494/2018
((From the judgment and decree dated the 16th day of May, 2017 passed by the High Court Division in First Appeal No.106 of 2009 and Cross Objection No. 795 of 2011 respectively).)

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Engr. Md. Shaheedullah
vs
Mrs. Shahana Neyamat and others

In a suit for specific performance of contract, neither the trial Court nor the appellate Court has any jurisdiction/authority to determine the price of suit property afresh, exercising its judicial power ignoring the terms of contract. Court cannot re-fix the consideration, i.e. the value of the suit property and go beyond the terms of the contract, and it cannot impose or add any term(s) in the contract.

2

Civil Appeal 149/2023
((From the judgment and order dated 02.03.2023 passed by the Company Bench of the High Court Division in Company Matter No.483 of 2022))

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Tabassum Kaiser
vs
Partex Cables Limited, represented by its Managing Director and others

If we read meticulously, the above provision of law then it will be clear that in view of the provision of subsection (2), the provision of subsection (1) of section 155 of the Companies Act cannot be said Sine Qua Non.

3

Criminal Petition 2769/2023
(From the judgment and order dated the 3rd day of August, 2023 passed by the High Court Division in Criminal Appeal No.248 of 2023)

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Debdulal Basu
vs
The State, represented by the Deputy Commissioner Dhaka and another

If we consider the definition of ‘person’ (ব্যক্তি) as defined in the General Clauses Act coupled with the fact that the PBI is an independent body/organization/unit of police, which acts by its own Regulations thus, we have no hesitation to hold that PBI, is an independent body i.e. body of individuals and it will come within the meaning/definition of ‘অন্য কোন ব্যক্তি’ as contemplated in section 27(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2003. Thus, the inquiry held by the PBI in this particular case is within the ambit of the law, and there is no scope to say that PBI or any other independent law enforcing agency is not authorized to hold any inquiry or investigation on the allegations made under the Nari-O-Shishu Nirjatan Daman Ain, 2000.

4

Contempt Petition(A) 29/2022
(Contempt Petition Nos. 30-33 of 2022)

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Md. Nurunnabi Bhuiyan
vs.
Md. Abdullah Al Masud Chowdhury, Secretary, Security Services Division, Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka and another

In the light of the above observations, all these petitions are disposed of. The contemnors-respondents are hereby exonerated from the charge of contempt of court. However, we strongly caution that in future not only the present contemnor-respondents but also all the authorities, executive and judicial, in the Republic shall be careful to ensure the compliance of the judgment and order of both the Divisions of the Supreme Court in totality.

5

Criminal Petition 1059/2024
(Criminal Petition for Leave to Appeal No.1059-1061 of 2024)

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Pubali Bank Limited vs Chowdhury Shamim Hamid and another

Section 138A of the Negotiable Instruments Act, 1881 has a `non-obstante` clause which has an overriding effect over general provisions contained in the Code of Criminal Procedure as regards preferring appeal against the order of sentence. A convict under Section 138(1) of the Negotiable Instruments Act is not entitled to get bail under Section 426(2A) of the Code of Criminal Procedure on condition of preferring appeal against the order of sentence unless he deposits 50% of the total cheque amount before preferring appeal as prescribed under Section 138A of the Negotiable Instruments Act, 1881.

6

Civil Appeal 8/2017
(with Civil Appeal No. 9/2017)

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Hajera Khan and others
vs.
Afsaruddin being dead his heirs: 1(a) Rumia Khatun and others

It has been decided time and again by this Division. As referred to above decision, certainly it’s not a cast-iron practice and dogmatic approach that the High Court Division will not interfere with the concurrent findings of Courts below. Yes, in a proper case as it is propounded in the above decision that High Court Division has ample and unfettered power to interfere with the concurrent findings of the Court below. It can be reiterated that if the decision of the Courts below is a perverse one, no reasons, whatsoever can preclude the High Court Division in interfering with the same. But in the case in hand, no departure of such kind could be traced out upon gleaning the judgments of both the Courts below. Therefore, question of interference by the High Court Division does not arise in this context. It did not at all advert to the points upon which the decision of the Courts below was based. It has travelled in a different direction trying to stretch out the case in favour of the defendants and against the plaintiff which we disapprove.

7

Civil Appeal 375/2015
(Civil Appeal 375/2015)

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Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Housing and Public Works, Bangladesh Secretariat, Shahbag, Dhaka and others
-Versus-
Belal Uddin, represented by his Constituted Attorney Murtaza Zakir Hossain

Therefore, the irresistible inference which follows that in any course of event the bounden duty to be discharged by the claimant for taking out a property from the clutch of ‘abandoned property’ has been time and again decided in one line. Though it will be repetition but still we want to reiterate that it is the claimant who shall have to prove to the hilt that the property in question is not an abandoned property. In the instant case the petitioner could not prove that his transferor Anwara Ahammed Chowdhury was present at the relevant time as required under law and interpreted by several decisions as discussed above.

8

Civil Appeal 74/2007
(Civil Appeal 74/2007)

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East West University
Vs
The Commissioner of Taxes

From the judgment and order dated 14.01.2007 passed by the High Court Division in Income Tax Reference Application No.274 of 2006 with Rule No.09(Ref) of 2006.

9

Criminal Appeal(A) 92/2023
(Criminal Appeal(A) 92/2023)

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Mr. Sohel Rana
-vs-
The state and others

Hence, we hereby absolve and exonerate the contemnor, Mr. Sohel Rana. Nevertheless, it is crucial to issue a strong admonition, underscoring the significance of adhering strictly to directives from the highest court in the country. It is our expectation that this incident serves as a lesson for all judicial officers, reaffirming the principle that the authority of the judiciary must be respected and upheld at all times.

10

Civil Appeal 138/2009
(Civil Appeal 138/2009)

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Md. Abdul Hanif @ Abu Hanif and others
-vs-
Bhupen Nath and others

We acknowledge that in the realm of judicial proceedings related to land rights, where the plaintiff bears the weight of proof, the sanctity of RS records serves as an unwavering beacon of truth as cemented by the section 144A of the State Acquisition and Tenancy Act.

11

Civil Appeal 128/2016
(Civil Appeal 128 of 2016)

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Mrs. Aziz Ara Rahman
Vs
Rajdhani Unnayan Kartipakkha (RAJUK) and others

• Fresh consideration of title of the respondent No.5 in disputed plot which has already been decided earlier by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 is barred by the principle of res judicata.
• Any previous decision on a matter in controversy in a legal proceeding including writ petition decided after full contest by the parties or after affording fair opportunity to the parties to prove their case will operate as res judicata in a subsequent regular suit. Therefore, in view of the above decision of the Indian Supreme Court we hold that since the right and title of the respondent No.5 in the disputed land has not been found by the High Court Division in Writ Petitions No.11099 of 2006 and 3030 of 2005 filed at the instance of the respondent No.5, subsequent suit being No.373 of 2005 instituted by the respondent No.5 for declaration of title so far as it relates to the disputed plot claimed by the appellant in Writ Petition No.7817 of 2009 is barred by the principle of res judicata.

12

Civil Appeal 304/2016
(Civil Appeal 304 of 2016)

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Babru Mia
vs
Mosammat Noorjahan Begum and others

• The High Court Division rightly rejected the decree of adverse possession in favour of the plaintiff-appellant since the plaintiff could not make out a case of adverse possession within the four corners of plaint. • The plaintiff except himself as P.W.1 could not examine any neutral witness to corroborate his claim to the effect that the defendant’s predecessor Abul Kashem was inducted into possession of the suit land on the basis of the lease deed dated 09.05.1960. The plaintiff also could not prove that he is in possession of the suit land taking oral settlement from Hazi Md. Arif in the year 1953. • In the light of the foregoing discussions, we find that the plaintiff did not acquire title and possession in the suit land and the defendants were never lessee under the plaintiff but the trial Court without proper appraisal of the oral as well as documentary evidence available on the record decreed the suit and while the High Court Division lawfully set aside the judgment and decree of the trial Court. We do not find any deviation in the impugned judgment and decree of the High Court Division.

13

Civil Appeal 111/2021
(CIVIL APPEAL NOS.111-155 OF 2021)

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The Government of Bangladesh
Vs
North South University and others

From the judgment and order dated 09.05.2016 passed by the High Court Division in Writ Petition Nos.9562-9564 of 2008, 9566-9567 of 2008, 11545 of 2015, 2110 of 2013, 6861 of 2012, 10929 of 2014, 8187 of 2015, 8930 of 2011, 11546 of 2015, 3681-3682 of 2013, 1969 of 2009, 2682 of 2016, 6404 of 2014, 4049 of 2013, 8507 of 2010, 3423 of 2012, 5793-5794 of 2014, 11195 of 2014, 14609 of 2012, 5176 of 2010, 13246 of 2015, 4050 of 2013, 9733 of 2015, 9934 of 2015, 12558 of 2012, 986-987 of 2011, 4878 of 2013, 10769 of 2014, 8697 of 2011, 5795 of 2014, 2510 of 2015, 3371 of 2015, 6177 of 2013, 1131 of 2009, 8985 of 2010, 11840 of 2015, 4048 of 2013, 12885 of 2015 and 1891 of 2015 respectively.

14

Civil Appeal 179/2018
(From the judgement and order dated the 6th day of September 2016 passed by the High Court Division in Civil Revision No.914 of 2015.)

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Durnity Daman Commission, represented by its Chairman
vs
Md. Mizanur Rahman and others

If anyone has claim or interest in the money/property attached/frozen or confiscated by the Court concerned, they can move before the competent Court for their redress.

15

Criminal Appeal(A) 72/2019
(Criminal Appeal(A) 72/2019)

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Chaitonya Sakar vs The State and another

The High Court Division as an appellate Court is entitled to alter or amend the charge framed against the accused under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law since the appellate Court has the same power as that of the trial Court and the case is not required to be sent to the Court of competent jurisdiction for holding trial afresh. In the case in hand, although the High Court Division upheld the conviction of the convict-appellant passed by the Tribunal but altered the sentence under 11(Ka) of Nari-O-Shishu Ain to one under Section 302 of the Penal Code, 1860 and in doing so the High Court Division did not commit any illegality. Since the offence under Section 11(Ka) of Nari-O-Shishu Ain wherein the charge as to killing of the wife along with charge of demanding dowry framed against the convict-appellant is a graver offence than that of the charge under Section 302 of the Penal Code for committing murder of the victim and, as such, we are of the view that the alteration of charge against the convict-appellant from Section 11(Ka) of Nari-O-Shishu Ain to Section 302 of the Penal Code will not cause prejudice to him.

16

Civil Appeal 399/2019
(.../)

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Md. Dabir Uddin vs Md. Moniruddin and others

A sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. But in the case in hand no pecuniary consideration was dealt with between the parties and as such the transaction in question cannot be termed as sale. Moreover, as it has already been found that due to non-compliance of the terms and conditions of ‘aposhnama’ dated 14.10.2003 there is no scope to claim right and title over the suit land by virtue of the alleged unregistered sale deed.

17

Criminal Petition 2553/2023
((হাইকোর্ট বিভাগের দ্বৈত বেঞ্চের ফৌজদারী বিবিধ মামলা নং-৫০৬৩৩/২০২৩ এ প্রদত্ত ০৩/০৯/২০২৩ইং তারিখের আদেশ হতে উদ্ভুত))

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রাষ্ট্র
বনাম
মোঃ শহিদুল ইসলাম ওরফে সোহেল সিকদার

অতএব, হাইকোর্ট বিভাগের সংশ্লিষ্ট অফিস-কে মাননীয় বিচারকদের রায় ও আদেশ বিশেষতঃ জামিন আদেশ ও অন্যান্য অর্ন্তবর্তী আদেশ প্রাপ্ত হওয়ার পর নথিটি গ্রহণ এবং প্রাপ্তির পর দিন ক্ষনের ক্রমানুসারে আদালতের আদেশ সংশ্লিষ্ট আদালতে প্রেরণ ও অন-লাইনে আপলোড করার প্রয়োজনীয় ব্যবস্থা গ্রহণের নির্দেশ দেওয়া হলো।

18

Civil Appeal 456/2017
(Arising out of Civil Revision No. 1575 of 2006)

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Bangladesh Tailbahi Jahaj Malik Samity, represented by its President
vs.
Chairman, Bangladesh Inland Water Transport Authority (BIWTA) and others

It is to be understood by all stakeholders that the conservancy fees are not punitive measures but rather investments in sustainable river management. Ship-owners, as beneficiaries of efficient river navigation, play an essential role in safeguarding these vital waterways. By recognizing the interconnectedness of rivers, estuaries, and the open sea, we can uphold both economic interests and environmental well-being.

19

Civil Appeal 49/2020

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Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Dhaka and others.
Vs
Abdur Rahman Bhuiyan and others

From the judgment and order dated 20.07.2016 passed by this Division in Civil Appeal No.107 of 2011

20

Civil Appeal 155/2015

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Deputy General Manager, Janata Bank Limited, Foreign Exchange Corporate Branch, Regional Office, Zone-A, CDA Annex Building, Chittagong.
Vs
Sampriti Chakma, Proprietor of M/S Sampriti Enterprise, represented by its Constituted Attorney Abdullah-Al Mamun and others.

From the judgment and order dated 09.02.2014 and 10.02.2014 passed by the High Court Division in Writ Petition No.4715 of 2013

21

Civil Appeal 153/2018
(CIVIL APPEAL NOS.153-154 OF 2018 WITH CIVIL PETITION FOR LEAVE TO APPEAL NOS. 3939 OF 2017, 3283 OF 2017, 3538 OF 2018, 2586 OF 2018, 1414 OF 2018, 4229 OF 2018, 4230 OF 2018, 4675 OF 2018, 1704 OF 2019, 1705 OF 2019 AND 1706 OF 2019.)

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Govt. of Bangladesh and anr.
Vs
Md. Abdul Monnaf and ors

(From the judgment and orders dated 12.11.2017, 30.03.2017, 03.07.2017, 18.07.2017, 04.01.2018, 17.10.2017, 27.05.2018, 13.05.2018 and 22.01.2019 passed by the High Court Division in Writ Petition Nos.10033 of 2017, 10746 of 2016, 1734 of 2017, 7760 of 2017, 7276 of 2017, 8093 of 2017, 10926 of 2016, 12883 of 2016, 3991 of 2018, 12480 of 2016, 9762 of 2016 and 15917 of 2017 respectively).

22

Civil Appeal 81/2016
(From the judgment and order dated 02.01.2011 passed by the High Court Division in Writ Petition No.3395 of 2008)

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Commissioner of Customs and others vs United Plastic Work Industries (Pvt.) Ltd.

It appears from Section 55(3) of the VAT Act, 1991 that before issuing a notice regarding evasion of VAT against a person the VAT authority is required to issue a show cause notice giving the person sufficient time stipulated in Section 55(3).But in the case in hand the writ-respondent No.1-appellant No.1 issued the demand notice dated 13.04.2008 under Section 55 (1) of the VAT Act, 1991 directing the writ-petitioner to deposit Tk.34,75,555.00 to the Government Treasury as the petitioner was allegedly evaded the said amount of VAT. The VAT authority did not state within the four corners of the said notice whether the writ-petitioner-respondent had been given an opportunity of being heard as to the allegations of evasion of VAT rather the VAT authority directed the writ-petitioner to deposit the evaded amount of VAT in the government exchequer within 10(ten) working days. In doing so, the writ-respondent No.1-appellant No.1 did not comply with the mandatory provisions of law as contemplated under Section 55(3) of the VAT ActBut in the case in hand the writ-respondent No.1-appellant No.1 issued the demand notice dated 13.04.2008 under Section 55 (1) of the VAT Act, 1991 directing the writ-petitioner to deposit Tk.34,75,555.00 to the Government Treasury as the petitioner was allegedly evaded the said amount of VAT. The VAT authority did not state within the four corners of the said notice whether the writ-petitioner-respondent had been given an opportunity of being heard as to the allegations of evasion of VAT rather the VAT authority directed the writ-petitioner to deposit the evaded amount of VAT in the government exchequer within 10(ten) working days. In doing so, the writ-respondent No.1-appellant No.1 did not comply with the mandatory provisions of law as contemplated under Section 55(3) of the VAT Act.

23

Civil Appeal 412/2019
(Arising out of Writ Petition Nos. 13783 and 13784 of 2015)

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The Government of Bangladesh
vs.
Md. Saiful Islam and others

Fortified with the ratio decidendi that has been spelt out in the decisions as referred to above we unequivocally endorse the same principle and hold that the writ-petitioners are not entitled to get any relief as sought for. But at the same time we also sympathetically endorse the view of this Division taken in the case of 72 DLR AD (supra) that the incumbent respondents should not be driven out without anything and the government should come forward in this respect in aid of these hapless employees in these days of hardship. It is our belief that the present respondents should not face displacement without recourse.

24

Civil Appeal 168/2023
(From the judgment and order dated the 24th September, 2020 passed by a Division Bench of the High Court Division in Writ Petition No.5495 of 2003)

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Ansar V.D.P. Unnayan Bank
vs
Ajoy Kumar Lodh and others

In the instant case it is admitted fact that the inquiry committee was formed by two persons and it is our considered view the whole inquiry proceeding suffers from lack of jurisdiction and the authority relying on such inquiry report committed serious error of law in awarding the punishment to the respondent No.1.

25

Civil Appeal 133/2023
(From the judgement and order dated the 29th day of June 2022 passed by the High Court Division in First Miscellaneous Appeal No.309 of 2021)

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Jahanara Begum and others
vs
Hazi Nizamuddin and another

It is now well settled that when on the face of the plaint, it is found that the suit is barred by any law or is foredoomed and if it is allowed to be proceeded with, it will amount to an abuse of the process of the Court, the Court is empowered to reject the plaint in exercising its inherent power.

26

Criminal Petition 2835/2023
(.../)

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The State vs Zainul Abedin @ Advocate Zainul Abedin and another

Guidelines on period of anticipatory bail.

27

Civil Petition 519/2023
(From the judgment and order dated 06.11.2022 passed by the High Court Division in Writ Petition No.3351 of 2022)

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Rukhsana Ahmed Ruxi and others
vs.
Bangladesh, represented by the Secretary, (Secondary and Higher Education), Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka and others

With all the vehemence and authority we are declaring that, the petitioners herein shall have to be treated in accordance with the new law as in the manner all of their colleagues have been treated without any discrimination.

28

Civil Petition 1062/2018
(From the judgment and order dated the 24th day of August, 2017 passed by the High Court Division in Writ Petition No.4716 of 2017)

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Government of Bangladesh and others
vs
Sonia Khatun and others

In view of the provision of clause 4.2 it is abundantly clear that the approved limit of making appointment of the teachers in a nationalized school were 4(four) and one of which will be Headmaster; and one more teacher would be considered if number of students are more than 400.

29

Civil Appeal 173/2016
(From the judgment and order dated 5th of March, 2012 passed by this Division in Civil Petition for Leave to Appeal No. 15 of 2011.)

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Government of Bangladesh, represented by the Secretary, Ministry of Communication, (at present Ministry of Railway), Bangladesh Secretariat, Ramna, Dhaka
vs
Sher-E-Bangla Market Dokander Bohumukhi Samabay Samity Limited, represented by its Secretary, Abdur Rashid Howlader and others

In view of the above facts and circumstances, the writ petitioner Samity is not entitled to get any relief, and the High Court Division committed serious error in making the Rule absolute and earlier this Division also failed to consider this fact that a valuable public property is going be sold in favour of a private party, by resorting forgery in collusion with the officials of the concerned Ministry. It is pertinent to mention here that earlier the resolution of 26th Board meeting of the railway authority was not brought to the notice of this Division and if the same was produced before this Court then result would have been otherwise.

30

Civil Appeal 82/2021
(From the judgment and order dated the 1st August, 2017 passed by a Division Bench of the High Court Division in Writ Petition No.1326 of 2016 and Writ Petition No.10041 of 2016)

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Md. Mobarak Hossain
vs
Bangladesh represented by the Secretary, Ministry of Power, Energy and Mineral Resources, Bangladesh Secretariat, Ramna, Dhaka and others

Proceeding initiated and conducted by one service Rules under a separate authority and ultimate decision taken by another authority is unheard of and not permissible in law and equity.

31

Civil Petition 1566/2023
(From the judgment and order dated the 30th day of March, 2023 passed by the High Court Division in Writ Petition Nos.8594 of 2021 and 11803 of 2021)

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Jasmin Ara Begum and others
vs
Banglsdesh, represented by the secretary, Ministry of Women and Children Affairs, Bangladesh Secretariat, Dhaka and others

It is well settled that the Government servants cannot be entitled to invoke writ jurisdiction when their remedy is available in the Administrative Tribunal. Mere challenging Service Rules ipso facto does not make it amenable to the writ jurisdiction.

32

Civil Appeal 232/2014
(C.P.No.2680 of 2014 and 602 of 2017)

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A.B.M. Altaf Hossain and others vs Govt. of Bangladesh and others

(a) The Chief Justice of Bangladesh in exercise of his functions as consultee shall take aid from the other senior Judges of the Supreme Court at least with two senior most Judges of the Supreme Court before giving his opinion or recommendation in the form of consultation to the President. (b) In the light of the observations made in S.P. Gupta, Ten Judges’ cases, and the article mentioned in paragraph-17, it is evident that in case of appointment of a Judge of the Supreme Court under Articles 95 and 98 of the Constitution the opinion of the Chief Justice regarding legal acumen and professional suitability of a person is to be considered while the opinion of the Prime Minister regarding the antecedents of a person is also to be considered. If divergent opinions from either side of the two functionaries of the state occur the President is not empowered to appoint that person as Judge. The opinion of any functionary will not get primacy over the others. (c). If any bad antecedent or disqualification is found against any Additional Judge, who is under consideration of the Chief Justice to be recommended for appointment under the provision of Article 95 of the Constitution, it is obligatory for the executive to bring the matter to the notice of the Chief Justice prior to the consultation process starts. (d). After recommendation is made by the Chief Justice to the President, even if, at that stage it is revealed that antecedent of any recommended candidate is not conducive to appoint him as a Judge under Article 95 of the Constitution, it shall be obligatory for the executive to send the file of that Additional Judge or the person, back to the Chief Justice for his knowledge, so that the Chief Justice can review his earlier recommendation regarding the such candidate. (e). If the Chief Justice again (2nd time) recommends the same Judge/person for appointment under Article 95, whose antecedent has been placed before him for reconsideration, this Court expects that, the President of the Republic would show due respect to the latest opinion of the Chief Justice.

33

Civil Appeal 454/2017
(From the judgment and order dated 16.08.2016 passed by a Special Bench of the High Court Division in Review Petition No. 19 of 2015.)

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Government of Bangladesh and others.
vs
The Managing Director, Ashiyan City Development Limited and others

The alleged ‘No-objection’ in favour of the respondent Ashiyan City cannot be said as discovery of new fact or evidence which after due exercise of diligence was not in the knowledge of the writ petitioner or could not produce by him when the judgment was delivered; rather considering the attending facts and circumstances of the present case, in particular the fact of getting alleged ‘No-objection’ was not produced/communicated or intimated to the Court during pronunciation of judgment of the writ petition, and that the review application was filed after a long lapse of time beyond the limit of prescribed time in law, thus, it is our considered view that this document (No-objection) is not a discovery of new fact or evidence rather it is a new document which the review petitioner-respondent had been able to manage the same cleverly, despite of the order of injunction of the High Court Division.

34

Civil Petition 2876/2023
(From the order dated the 30th day of May 2023 passed by a Division Bench of the High Court Division in Writ Petition No.10574 of 2022)

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Sulaiman Rubel and others
vs
Dr. Kazi Sirajul Islam and others

In the instant case it is undeniable fact that the Bank, before filing the suit had taken steps as per provision of section 12(3) of the Ain,2003 for selling the property but auction was not done due to the filing of the writ petition before the High Court Division by the mortgagors. Thus, there is no room to say that Bank before filing the suit did not take any steps to sell the mortgaged property.

35

Civil Appeal 67/2022
(CIVIL APPEAL NO.67 of 2022 WITH CIVIL PETITION FOR LEAVE TO APPEAL NO.861 of 2022.
(From the order dated 29.07.2019 and 11.11.2021 passed by this Division and the High Court Division in Civil Petition for Leave to Appeal No.1613 of 2019 and Civil Revision No.1040 of 2020 respectively).)

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M/s. Sonar Bangla Service Filling Station (CNG) Limited, represented by its Managing Director Rana Chowdhury
Vs
M/s. Nasir CNG Filling Station, represented by its Proprietor Nasir Uddin and others

The term ‘Functus Officio’ means that the jurisdiction of a designated authority comes to an end once he/she has performed his functions for which he/she was appointed. This term is equally applicable for all other offices including the Courts. It is settled principle that when a court has reached its final decision in respect of a matter, such court cannot vary/change its own decision, unless it is permitted by the specific provision of law.

36

Civil Appeal /2009
(Arising out of Civil Petition No. 1724 of 2008)

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The Government of Bangladesh: represented by the secretary, Ministry of Home Affairs, Bangladesh Secretariat, Ramana, Dhaka
Vs
Md. Abdul Mannan and others

In the case in hand, since the order of termination has been passed under section 8 of the Ordinance, 1976 it would be not punitive and it must be assumed that the respondent No. 1 has been discharged from the service of Bangladesh Rifles though the Bengali term "বহিস্কার" has been used there for the word ‘discharge’ inappropriately. So, whatever submissions in this regard of the learned Advocate for the respondent does not hold good being falacious one. But the respondent No. 1 could be entitled to get the financial benefits following the above provisions of law.

37

Civil Petition /2018
(CIVIL PETITION FOR LEAVE TO APPEAL NOS.901 OF 2018 with C.P.1466 of 2022)

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Md. Abdur Rashid and others
Syed Sohrawardi and another
Vs
A.B.M. Yousuf Abdullah and others

Admittedly, record-of-right in the instant case, has not yet been published finally. The Zonal Settlement Officer simply issued a notice directing the parties to appear before him with their respective papers. The writ petitioners, without appearing before the said Officer, directly filed the instant writ petition and obtained Rule which was finally made absolute. Since the law authorizes the Revenue officer with additional designation of settlement officer to hold inquiry to ascertain as to whether any fraud had been committed in procuring entry for preparation of the record-of-rights before final publication or not, we are of the view, that the said Office acted in its jurisdiction as conferred under the Rule 42A of the State Acquisition Rules, 1955 rightly, the High Court Division erred in law in interfering with the matter at the stage when the writ petitioners have ample opportunity to appear before the Zonal Settlement Officer and to produce documents to justify their claims.

38

Civil Petition /2017
(CIVIL PETITION FOR LEAVE TO APPEAL NO.903 OF 2023 with C.P. No.2256 of 2017, 2427 of 2018)

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S. Nehal Ahmed
Vs
Ministry of Housing and Public Works and another

It is settled principle that when an instrument of gift is reduced into writing, the same must be registered. Oral gift is admissible in the Mohammedan Law and in order to prove oral gift, offer, acceptance and delivery of possession of the alleged gifted land must be established.
We do not find any cogent reason of passing first order by the Settlement Court on 13.04.1996 inasmuch as the petitioner claimed that the same was filed on 08.01.1987. In absence of any order as to the limitation, passing of first order in 1996 ignoring point of limitation cropped up a question how the Court of Settlement entertained such case. We also did not find any order in the case record, in respect of extension of time as per provision of section 11 of the Ordinance. High Court Division finally observed that application dated 08.01.1987 was subsequently created to save the limitation. We do not find anything in the record to disagree with the findings and observations arrived at by the High Court Division as to the point of limitation. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged the Court would be reluctant to treat the document as genuine one.
A Court must give reasons for its decision in a case. The reasons should include an explanation of why the Court has chosen to follow or not to follow a previous decision which is identical before it. When an earlier decision is not followed it is said to be distinguished from the earlier case.

39

Civil Petition /2023
((From the judgment and order dated 15.03.2023 passed by the High Court Division in Writ Petition No.3185 of 2023)

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Advocate M.A. Aziz Khan
Vs
The Election Commission of Bangladesh, represented by the Chief Election Commissioner, Nirbachan Bhaban (7th -8th Floor), Agargaon, Dhaka-1207 and another

The tests for finding out whether an office in question is an office under the Government and whether it is an office of profit, are (1) Whether the Government makes the appointment, (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder? Does he perform them for the Government and (5) Does the Government exercise any control over the performance of these functions?
In the case of President of the People’s Republic of Bangladesh, Government of Bangladesh cannot appoint President. Removal procedure of the President is also very stringent since he can be removed by impeachment by two thirds majority of the total members of Parliament (Article 52 and 53 of the Constitution). Government cannot remove president at its will since Government may be formed by simple majority of the members of Parliament [article 56 of the Constitution]. So from the point of view of control over the President by the Government, the office of the President can in no way be termed as office of profit in the Service of the Republic in respect of the Government.
We are of the view that since the term "প্রজাতন্ত্রের কার্য" has not been defined in the Ain and the same has identically been defined in the General Clauses Act, 1897 and in Article 152 of the Constitution, legislature intended that the term "প্রজাতন্ত্রের কার্য" would have the same meaning as in the General Clauses Act, 1897 and Article 152 of the Constitution. Even if the Ain contained a different definition of "প্রজাতন্ত্রের কার্য", the definition of "প্রজাতন্ত্রের কার্য" as contained in article 152 of the Constitution would have got primacy over the definition of "প্রজাতন্ত্রের কার্য" in the Ain, the Constitution being the supreme law of the land.
As per provision of Article 152 of the Constitution, “the service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic. Sole Presidential Candidate Mr. Md. Shahabuddin does not hold any office of profit in the service of the Republic as per the definition provided in Article 152 of the Constitution. Therefore, he is qualified for election to be a member of the Parliament.
Hypothetically, if president of the Republic falls within the category of persons in the service of Republic, he can hold office during his own pleasure as per article 134. But it is impossible on the ground that President can be removed by impeachment by two thirds majority of the total members of Parliament (Article 52 and 53 of the Constitution).
The domain and the extent of the writ jurisdiction under article 102 of the Constitution is very limited with a few notable exceptions when the High Court Division has considered the matter as an especially exceptional circumstance and in the case it entertained such petition for examination. It usually declined to entertain the election matter.

40

Civil Appeal /2014
(CIVIL APPEAL NOS.202-203 OF 2014 with C.P. Nos.1257-1258 of 2023.
From the judgment and decree dated 19.05.2011 passed by the High Court Division in Writ Petition No.5864 of 2000 and 6442 of 2008)

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Raihana Shafi being dead her heirs: Monir Ahmed and others
Government of Bangladesh, represented by the Secretary, Ministry of Works
Vs
Chairman, First Court of Settlement, Segunbagicha, Dhaka and others
Hasibur Rahman Chowdhury and others

The law does not provide any provision to review a judgment and order passed by the Court of Settlement at the instance of third party whose claimed, if any, is barred by the provision of limitation. Section 10 of the Ordinance specifically provides that except as otherwise provided in the Ordinance, the provisions of the Code of Civil Procedure shall not apply to a Court of Settlement and Sub-section (2) of Section 10 limits the area of the applicability of the Code of Civil Procedure. The Court of Settlement is not a Civil Court and its authority is to determine as to whether the disputed property is abandoned property or not. The provisions of the Code of Civil Procedure should be applicable in respect of summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; requiring evidence on affidavit; requisitioning any public record or copy thereof from any office; and issuing commissions for the examination of witnesses or documents. In such view of the matter a question stands on the way as to the entertainability of the application under Order 1 Rule 10 of the Code of Civil Procedure for adding the applicant as claimant to get release of abandoned property filed by other party making different pleading. Our view is “no”.

41

Civil Appeal /2008
(Civil Appeal 11-15 of 2008
(From the judgment and order dated 29.03.2006 passed by the High Court Division in W.P. Nos.3942 of 2005, 3943, 3944, 3945 and 5217 of 2005)

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The Commissioner of Customs, Customs Excise and VAT Commissionerate Dhaka (South) Dhaka and others
Vs
Syed Nurul Arefeen
Md. Nasiruddin

Clause (2) of Article 102 of our Constitution empowers the High Court Division to interfere with any proceeding if satisfied that there is ‘no other equally efficacious remedy is provided by law.’ In view of the time frame prescribed by section 42(4) of the VAT Act it cannot be said that the remedy under section 42 of the Act is not efficacious. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum provided under the law is not maintainable.

42

Civil Petition /2019
(Judgment)

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Md. Taherul Islam (Tawhid) vs. The Speaker Bangladesh Jatiya Sangsad and others

In the 11th Parliamentary election, the newly elected MPs took oath on 03.01.2019 and on the same day the President realized that Sheikh Hasina, the newly elected MP in the said election, was commanding the majority support of the elected MPs and for such satisfaction of the president under the Constitution, he is not required to wait until the first meeting of Parliament. Therefore, the provision of Article 148(3) of the Constitution has been incorporated to maintain continuity of running the government for the best interest of democracy. In the 11th Parliament after being appointed Prime Minister on 03.01.2019, she determined as to who would be the Ministers, State Ministers and Deputy Ministers in her cabinet and, accordingly such MPs and some non-MPs were also appointed as Ministers, State Ministers and Deputy Ministers by the President in accordance with the Constitution. It is manifest from the above that “deeming clause” under Article 148(3) was incorporated just to facilitate the continuity of the government. Though, upon taking oath, the MPs in reality have not assumed office of members of parliament, yet they have assumed office by way of legal fiction created by the Constitution and that legal fiction must be interpreted restricting the same to be used for the said purpose only. The legislature deliberately created this legal fiction so that the next executive government can be formed and appointed by the President. The said intention of the legislature has been elucidated in Article 123(3) which states that member of Parliament shall not assume office as members of parliament except after the expiration of the term of the previous parliament. It denotes that the MPs who took oath even before the first meeting of the Parliament shall not in fact or in reality assume such office of members of parliament before expiration of the tenure of the last parliament.

43

Civil Appeal /2022
(with Civil Petitional 1732 of 2022
(From the judgment and order dated 10.11.2016 passed by the Appellate Division in C.P. No.1181/2014)

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Durnity Daman Commission, represented by its Secretary.
Sariif Uddin
-Vs-
Md. Ahsan Ali and others
Durnity Daman Commission, represented by its Secretary and others

The situation that demands immediate action or is preventive or remedial, in those case one cannot wait for the proper application of principles of natural justice.
Termination clause in service rules is necessary for the purpose of managing and supervising the employees and maintaining discipline and order in the service. To maintain discipline and order in the service, sometimes it might be required to take quick and prompt action and set aside all the formalities. During that period, it is necessary that the rights of general interest are given priority over the individual interest. Hence, in such scenario the mandatory requirements of assigning reasons and providing adequate opportunity of hearing might be relaxed and decision can be taken without following them.
The efficiency and expediency and the necessity of running an office make it imperative to give the power to the employer to terminate the employment of employees but exercise such power should ensure fairness, avoid arbitrariness and malafide.
Mere harshness or unreasonableness or arbitrariness cannot be a ground to declare a law void or inconsistent with the provision of the Constitution. Since the order of termination of the respondent No.1 was not an order of termination simpliciter but the same was an order of dismissal in the guise of the order of termination so the same was liable to be declared void and the High Court Division rightly did so.

44

Civil Appeal /2022
(Civil Appeal 10-12 of 2022
Arising out of C.P Nos. 1903 of 2020, 2149 of 2020 and 2024 of 2020 respectively)

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Bangladesh Bank, represented by its Governor, Bangladesh Bank Bhaban, Motijheel Commercial Area, Dhaka and another
Managing Director, United Finance Company Limited, Camellia House, 22, Kazi Nazrul Islam Avenue, Dhaka-1000
Managing Director, Social Islami Bank Limited, City Centre (19th Floor), 90/1, Motijheel C/A, Dhaka-1000
Vs
Homeland Footwear Limited, represented by its Managing Director, Mr. Amir Hossain and others

The borrower who takes over the management unencumbered can in no way be responsible of the previous liabilities which must be vested upon the previous management. In the instant case, the respondent no. 1, company did not avail any loan after the new management took over the charge of it so, as per the agreement and that of the order of the High Court Division staying the winding-up proceeding, they cannot be treated as defaulting-borrowers.

45

Civil Appeal /2016
(From the judgment and order dated 13th of February 2014 passed by the High Court Division in Writ Petition Nos. 1606-1612)

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Government of Bangladesh, represented by the Secretary, Bangladesh Parliament, Sher-e-Bangla Nagar, Dhaka and others
vs
Md. Masud Rana

Courts power of judicial review on the proceedings of Parliament is not absolutely ousted. In certain facts and circumstance, in particular on the grounds of lack of jurisdiction or it being a nullity for some reasons such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity, Court has the jurisdiction to exercise its power under judicial review. we are unable to accept the submission of Mr. Neogi that in cancelling the order of appointments of the writ petitioners, which were the result of corrupt, illegal and male practice, the principle of natural justice has been violated.

46

Civil Appeal /2017
(From the judgment and decree dated 18.06.2013 passed by the High Court Division in First Appeal No.59 of 2010)

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Shafika Chowdhury and others
vs
Badrul Amin @ Manu Sardar and others

The trial Court observed that it is difficult to accept that a responsible office of Sub-Registrar shall prepare and use its seal as “Office of the Sub-Register”. The word “Sub-Register” in the official seal of SubRegistrar created a doubt about the genuineness of the deed itself. Since it is the case of the defendants that the said deed is forged one it was the duty of the plaintiff to prove his deed upon calling the volume book from the concerned Sub- Registrar’s office but he did not take any such step. P.W.1, has failed to say the year of the execution and registration of the sale deed. Evidence on record clearly indicates that there was no previous acquaintance of the plaintiff with Nurer Rahman, admitted owner of the suit land which also made the execution of the alleged “bainanama” and sale deed and payment of consideration doubtful. The plaintiff has failed to prove his possession in the suit land. In such view of the matter, the instant suit, without the prayer for recovery possession, was not maintainable.

47

Civil Appeal /2016
(From the judgment and decree dated 06.06.2010 passed by the High Court Division in First Appeal No.283 of 1993)

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Government of Bangladesh, represented by the Deputy Commissioner, Satkhira

It appears from the statements submitted by Hazari Lal Sarnaker of as per provisions under Article 7 read with Article 12 of the Bangladesh Land Holding (Limitation) Order, 1972 (Presidential Order No.98 of 1972) that he surrendered the suit land along with other lands the Government. Since the suit land was surrendered by its owner as excess lands to the Government under Presidential Order No.98 of 1972, we are of view that the right, title and interest and possession of the same has been vested in the Government free from all encumbrance. In view of the above provisions of law the Government became the absolute owner of the same. Thus, the subsequent transfer by the Hazari Lal Sarnaker in favour of the plaintiff in 1977 did not confer any title to it.

48

Civil Appeal /2019
(From the judgment and decree dated 02.02.2017 passed by the High Court Division in Civil Revision No.946 of 2000)

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Md. Isaq Biswas and others
Vs
Abdus Samad Sheikh alias Abdul Hossain

The appellate Court mainly relied upon the weakness of the case of the defendants that they have failed to prove of the story auction sale and their alleged settlement but in order to get a decree for recovery of possession along with prayer for declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs, particularly, when the plaintiffs failed to prove their possession in the suit land till their dispossession.

49

Civil Appeal /2015
(From the judgment and order dated 17.08.2011 passed by the High Court Division in Writ Petition No.6643 of 2006)

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Abdul Halim Gaznabi and others
vs
M.M. Badsha Shirazi and others

The rent receiving interest of all the rent receivers were acquired with effect from 14.04.1956 under section 3 of the State Acquisition and Tenancy Act, as amended by East Bengal Ordinance No. III of 1956 in the District of Dhaka vide notification Nos.4826 LR to 4836-LR respectively, dated 2nd April, 1956, published in Dhaka Gazette extra-ordinary dated 2nd April, 1956 (part one). The instant lease deed was executed and registered on 21.12.1956, that is, after enforcement of State Acquisition and Tenancy Act. In such view of the matter, the submission to the effect that after enforcement of the State Acquisition and Tenancy Act, lessee became tenant under the Government does not seem to be justified. It appears from the lease deed that there was clear stipulation that the lessor agreed with the lessee that lease shall endure and subsist for a period of 50 years, from the 1st day of January, 1957 to 21st day of December, 2007. From that aforesaid condition of the lease and pursuant to the provision of section 108(B) of the Transfer of the Property Act, it is apparent that the lessor was entitled to get back the property after expiry of 50 years. After expiry of that 50 years tenure, the lease hold rights of the appellants have been extinguished.

50

Civil Appeal /2016
(From the judgment and order dated 12.06.2012 passed by the High Court Division in Civil Revision No.1725 of 2007)

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Mosammat Asma Khatun being dead his heirs: Md. Anisur Rahman and others
vs
Md. Abdul Karim being dead his heirs Rahman and others

The expression “date fixed for the performance” is a crystalized notion. When a date is fixed it means that there is a definite time fixed for doing a particular act. The date fixed for the parties for performance of the agreement should be ascertained on the basis of terms and conditions of the contract. In a case, where no time for performance was fixed, the court had to find out the date, on which, the plaintiff had noticed that the performance had been refused by the defendants. It was the attempt of the plaintiff to get benefit of the second limb of Article 113 of the first schedule to the Limitation Act. In that case, it was the obligation of the plaintiff to state the definite date of refusal in the pleading which is absent in paragraph 23 of the plaint.
The plaintiff did not comply with the terms and conditions of the alleged agreement for sale even if the same is accepted as genuine one. Non compliance of the mandatory condition itself disentitles the plaintiff from obtaining an equitable remedy for specific performance. Specific performance of contract is an equitable and discretionary relief to be given by the competent Court exercising the same judiciously. To get relief it is imperative upon the plaintiff to prove that there was agreement for sale and consideration was settled and pursuant to the agreement a considerable amount was paid out of settled consideration, the plaintiff has already performed or was always ready and willing to perform the essential terms of agreement which were to be performed by him. The Court shall Judge the conduct of the plaintiff having regard to the entirety of the pleadings as to the evidence brought on records.