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AKM Nazimuddin Vs. Md. Delwar Hossain and others, 2008, 37 CLC (HCD)
Shamsur Rahman Khalifa Vs. Jagodish Chandra and Others, 2007, 36 CLC (HCD)
R.K. Jute Mills Ltd. Vs. Government of Bangladesh and others, 2006, 35 CLC (HCD)
Bengal Glass Works Limited Vs. Customs, Excise and VAT Appellate Tribunal, Jotsna Complex, 2007, 36 CLC (HCD)
Al Haj A.B.M. Mohiuddin Chowdhury Vs. State, 2007, 36 CLC (HCD)
Kaisor-uz-Zaman (Md.) Vs. State, 2012, 41 CLC (AD)
Aysha Siddiqua Vs. Fazilatunnesa and other, 2012, 41 CLC (AD)
Lal Mia and another Vs. Secretary, Ministry of Land and others, 2012, 41 CLC (HCD)
Binding force of a court
A decree of a competent civil court is binding upon all the authorities of the People’s Republic of Bangladesh and therefore the respondents are legally bound to mutate the names of the petitioners in the suit land but they are not performing their legal duties, so inaction of the respondents is illegal. ....................... (5)
Social justice
In order to ensure social justice as enshrined in Article 10 of the constitution, a constitutional court is empowered to grant and pass any necessary order/s as it deems fit and proper as equitable relief in addition to doing usual “fair and just” adjudication of any matter under ordinary law. It is also a settled principle of law the fraud vitiates any right, whether a legal right or vested right. ....................... (8)
MA Gafur Vs. Registrar of Joint Stock Companies and Firms & ors, 2012, 41 CLC (HCD)
Companies Act, 1994; section 233, Sub Section(3)(a)(b)(c), Article 14, 16
The
jurisdiction being regulatory and preventive in nature under section
233 of the Act is to be exercised to protect interest of the minority
shareholders from being prejudiced by the majority shareholders as well
as to prevent mismanagement as regards the affairs of the company,
either by majority of the members or by the directors of the company.
This jurisdiction, conferred by section 233 of the Act, thus
practically negotiates the rule founded in Foss Vs. Harbottle (1843) 2 Hare 461.
This rule, which has two strands, firstly, precludes a shareholder from
bringing an action to pursue wrongs which has been done to the company.
Secondly, where there are irregularities in the way the company is run,
and also in many cases where directors are in breach of their duties,
the majority shareholder in general meetings may, by ordinary
resolution, ratify what has been done. In those circumstances the court
will not allow a minority shareholder to bring an action perusing a
matter which it is competent for the majority to approve on behalf of
the company……..(8)
Article
14 and 16 keeping provisions for 4 members to remain personally
present to form the quorum for holding General Meetings and the Board
Meetings, respectively, can also create stalemate in the business and
functioning of the company. Even if the 4 members do adopt an unanimous
resolution that can also be prejudicial to the interest of the company
in its transaction of business with the 3rd parties or even in doing or
ratifying an ultra vires act…………………....................(9)
Abu Azam Md. Yunus Miah and another Vs. State, 2012, 41 CLC (HCD)
Code of Criminal Procedure, 1898; Sections 247,439, 561A.
Fresh complaint petition not a bar in case of non-acquital.
Non-appearance of complainant leads to acquittal of the accused
Section 247 of the Code of Criminal Procedure has empowered the Magistrate to acquit the accused if the complainant fails to appear on the day of hearing of the case, unless for some reasons he thinks proper to adjourn the hearing of the case to some other day. ............ (11)
Section 247 is for to prevention of prolongation of litigation
The above provision of law has been made to protect an accused from un-necessary harassment and to prevent the prolongation of litigation and to make the complainant diligent and sincere to persue the case……..(13)
High Court’s Power to acquit an accused or to quash the proceedings of a case
In a pending Rule before the High Court Division which has arisen out of a complaint case if the notice was served upon the complainant and he fails to appear in the Rule to contest the same and/or after entering into the Rule by filing Vokalatnama subsequently keeps silent years together that is for a reasonable period and not diligent to persue the case, in such circumstances the High Court Division is not powerless to acquit the accused or to quash the proceedings of the case where the allegations are not grave and heinous in nature considering the willful negligence and silence of the complainant taking aid of section 247 along with section 561A of Code of Criminal Procedure….(15)
When it is an abuse of the process of the Court
In the eye of law the impugned judgment and order is legal one and do not suffer from any illegality or infirmity. But having considered the attending facts and circumstances of the case and the nature of allegation made in the petition of complaint it is correct to say that if the proceeding is continued further, it would be nothing but an abuse of the process of the Court............(17)
Amirul Islam (Md.) Vs. Commissioner of Customs and others, 2012, 41 CLC (HCD)
Whether the respondents have committed any palpable wrong in the making of assessment without doing the assessment in keeping with the valuation Rule, 2000
Where there is a flagrant departure from the rules to be followed or the prescribed method to be followed, of course, this Division should not remain dumb founded from non-interfering on the plea of alternative remedy being available………………………….(19)
Without complying with the Rules 1 to 5 chronologically the respondents adopted straight away deductive method for doing the assessment and thus flouted even their own decision. On that score our decision is that the respondent had certainly indulge in accesses in making the assessment by applying Rule 7 of the valuation Rule, 2000 that is the deductive method in assessing the goods in question……………………….(20)
Abdur Rashid Akanda Vs. Md. Raisuddin and others, 2012, 41 CLC (HCD)
It is a
settled principle of law that question of limitation is a mixed question
of facts and law and needs to be settled only upon taking evidence and
further in terms of the decisions of the superior courts, a litigant
should not suffer for wrong advice of his learned Lawyer and so the
plaintiff is entitled to get benefit of section 14 of the Limitation
Act for condonation of delay consumed due to wrong advise of his
lawyer.
Khasru Ahmed Vs. State, 2012, 41 CLC (HCD)
In an arms case, an accused could be convicted on the basis of unimpeachable evidence of the Police witnesses though the public seizure list witnesses were reluctant to tell the truth in a bid to save the accused who was either their neighbour or relative. In the instant case Police officials proved the case of recovery of firearm from the possession of the convict appellant by such unimpeachable evidence……………….. (15)
Nazrul Islam Talukder (Md.)Vs. Bangladesh & another, 2010, 39 CLC (HCD)
Issuance of Nikah Registrar licence on regular basis
Rule
5A of Muslim Marriages and Divorces (Registration) Rules, 1975 provides
that, a person acting for at least three years as Nikah Registrar on
temporary basis under rule 5(1), shall, subject to the provisions of
rule 10, be illegible to be licensed as Nikah Registrar on regular basis
if he fulfils the requisite qualification.
In
the aforementioned case since the petitioner was appointed on
27.01.2004 and he successfully performed his functions, for a period of
three years he is entitled to have a permanent Nikah Registrar licence
under Rule 5A.
In
the affidavit-in-reply it has been contended that the petitioner has
been exonerated from the charge to act beyond his territonal
jurisdiction. Therefore, the respondents are under legal obligation to
issue permanent Nikah registry licence to the petitioner in respect of
the aforesaid ward...... …………………….(8)
State Vs. Matiur Rahman @ Mati, 2011, 40 CLC (HCD)
Proving of motive, not an essential element to find the accused guilty
It is now almost an obsolete dogma that in a criminal case proving of motive is an essential element to find the accused guilty where there is evidence of the occurrence. Where there is sufficient direct evidence to prove an offence, motive is immaterial and has no vital importance. ................. (28)
Motive not a necessary ingredient of an offence
While trying a case under section 302 of the Penal Code or hearing an appeal involving that section, the Court must not consider first the motive for the murder. Because motive is a matter of speculation which is not a necessary ingredient of an offence under section 302 of the Penal Code. The court will see if sufficient direct evidence is there or not ........... (28)
Sole testimony can be the basis of Conviction
It
is well settled that a conviction can be based only on the sole
testimony of a single witness. Mere interestedness is no ground to
reject the testimony of a witness, if the testimony is free from doubt.
............. ......(30)
The
conviction may be given relying on the evidence of a single witness if
such evidence is full, complete, self contained and trustworthy.
............ .....(32)
Bangladesh Telecommunications Company Ltd Vs. CPTU, 2012, 41 CLC (HCD)
Power of a Review Panel
Neither PPA, 2006 nor PPR, 2008 has provided any authority upon a Review Panel to declare a company as pre-qualified for a particular project of any purchasing entity. Any company which can not meet the pre-qualification requirements can not be declared as pre-qualified by a Review Panel and thereby allow an unsuccessful pre-qualified stage bidder to submit a bid and, therefore, the order passed by Review Panel is bad in law and liable to be declared without lawful authority………..........(8)
Prevalence of Loan Agreement over PPA
The Proviso to clause (Gha) of Section 3(2) of PPA, 2006 provides that if any contradiction crops up between PPA, 2006 and the Loan Agreement, then the terms of Loan Agreement shall prevail over the PPA, 2006 in respect of projects funded by foreign countries or donor agencies under any Loan Agreement........ (8)
Section 29(2) (GA) (A) of Public Procurement Act, 2006
No appeal shall lie against rejection of an application for pre-qualification but the said Review.
Rule 60(3) of Ka, Kha, GA, Gha of Public Procurement Rules, 2008
As per the above mentioned rules, a Review Panel is empowered only to advice or recommend the purchasing entity inasmuch as the relevant law and rules provide that a Review Panel “may provide advice” or “recommendation” to any purchasing entity but it can not pass any order of “direction” upon any purchasing entity.
Rule 60(5) of the Public Procurement Rules, 2008
As per the above mentioned rule, the decision of a Review Panel is final and all parties concerned must take necessary steps to implement the decision passed by a Review Panel.
Foreign Loan Agreement shall prevail
Since the project in question is being implemented with the assistance of foreign loan, the terms and conditions of the Loan Agreement shall apply and the PPA and PPR are not applicable.
Prevalence of Loan Agreement where
If there is anything in the Loan Agreement which is contrary to the provisions of PPA or PPR, only then the provision of the Loan Agreement shall prevail. Other wise, the PPA shall apply in all types of procurement of goods, work or services by the Government under a loan or grant agreement with a foreign organisation or state…………....... (14)
Application of Section 29, Public Procurement Act and Rules 56 to 60
If there is no specific provision of appeal or filing complaint in the relevant Loan Agreement, then sections 29 and 39 of PPA and Rules 56 to 60 shall be applicable...... (14)
Authority of Review Panel
Review Panel has no authority to pass any order or direction and that it can only advise or recommend the purchasing entity and consequently, the decision of the Review Panel is liable to be set aside.....................................(16)
Section 29(2) applies when a purchasing entity takes a decision to reject the whole process of prequalification. If such decision is taken, it is equally applicable to all participants of that procurement process. If, however, a purchasing entity declares only one or a few of the contenders for pre-qualification, then the decision will not come under Section 29(2) and hence complaint can be filed against such decision…….(20)
Reasonable grounds should exist for filing a formal complaint
A
complainant must have reasonable grounds under Rule 56(Ka) to file a
formal complaint and schedule no-2 of the PPR clearly states that the
complaint should be filed within 7 days after becoming aware of such
grounds.......... (22)
Amina Khatun and others Vs. State and others, 2010, 39 CLC (HCD)
No property can be declared as enemy or abandoned property after 1969
As per decision of the Appellate Division no property can be declared as enemy property or abandoned property after 1969. It can be relied upon the case of Government of Bangladesh Vs. Paresh Chandra Gharani, 50 DLR(AD) 70 wherein it has been held that when the Government failed to prove the legal foundation for enlisting the suit property in the census report of the vested property and the plaintiffs led some evidence in support of their interest in the suit property the Appellate Court decreed the suit on correct view of law......(8)
To be vested a property must have factual basis and legal foundation
Claim by the government or by the vested property authority that a certain property is a vested property without the necessary factual basis and legal foundation has no validity in the eye of law. Laws relating to enemy properties now vested properties are fairly well settled by now, properties which assumed enemy character and became enemy properties by operation of law during 6-9-65 to 16-2-69 when the emergency was formally lifted, became vested properties and the Government may treat such properties as enemy or vested properties and take over possession thereof in accordance with law subject to the legitimate rights of co-owners, co-sharers and bona fide transferees in lawful possession therein. But before a property is treated as vested property on the basis of a V.P. Case started long after the lifting of emergency on 16th February, 1969 a heavy duty is cast upon the authority concerned to satisfy itself that the recorded tenant migrated to India before 1965. In support of this we can rely on the case of Dayal Chandra Mondal Vs. Assistant Custodian of Vested and Non-Resident properties (L & B) and Additional Deputy Commissioner (Revenue), Dhaka, 50 DLR 186........(9)
Expiry of the Law of Enemy Property
Since
the law of enemy property itself died with the repeal of Ordinance 1 of
1969 on 23-3-1974 no further vested property case can be started
thereafter on the basis of the law which is already dead..........(14)
Asaduzzaman Shahid Khan Vs. National Tea Company Ltd and others, 2013, 42 CLC (HCD)
Nazrul Islam Vs. State, 2012, 41 CLC (HCD)