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The
power to enact a law or to amend any provision of a statute is within
the ambit of legislative power, which is exclusively within the domain
of parliament and such can not be delegated to any authority like
Security Exchange Commission...... (25)
The
law declared by the Appellate Division shall be binding on the High
Court Division and the law declared by either division of the Supreme
Court shall binding on all courts subordinate to it. All authorities,
executive and judicial, in the Republic shall act in aid of the Supreme
Court......... (26)
Syed Moazzem Hossain (Md.) Vs. Tahsia Khanam and others, 2011, 40 CLC (HCD)
share
"Share" means a share in the capital of the company, and includes stock except when a distinction between stock and shares is expressed or implied. So, share is a movable property of the company having market value. By the amended prayer of the plaint it has been made for recovery of possession of shares. The shares got its market value. As per the statements made in the plaint the valuation of each share is at Taka 100 only. Section 7 of the Court Fees Act provides the provision for paying as valorem court fees as the "share" is a movable property having market value. Accordingly the Court-fees paid in the earlier plaint (before amendment) was insufficient and by way of amendment that has been cured by paying ad valorem court fees…….. (20)
Consequential Relief
Consequently relief means a substantial and immediate remedy in accordance with the title which the Court has been asked for declaration….. (21)
Sk Ahmedullah (Babul) Vs. Al-haj Md. A Rashid, 2012, 41 CLC (HCD)
Negotiable Instruments Act, 1881 [XXVI of 1881]; Section 138
The
cheque was dishonored for insufficient fund; and legal notice was
issued and served on 7-9-2009 and within next 30 days from the date of
cause of action, the case was filed on 7-10-2009. The question of
prematurity does not arise. Even if it is found that the case was filed
prior to the expiry date of legal notice, then also the case has
attained its maturity after expiry of the statutory period. There is no
illegality in this respect................(6)
Prayer for a direction on the complainant to receive the amount and discharge of the accused is not acceptable
It is not the function of the trial Court to give direction on the complainant to receive money after expiry of the statutory period. Having been dishonored the cheque and servicing of legal notice, the cause of action arose for filing the case and thereafter the complaint case was filed.
Subsequent to the date of filing the case, the complainant was not under obligation to accept the amount of the dishonoured cheque and, as such, the Court had no legal authority to give such direction…......(7)
Grameen Phone Ltd Vs. Bangladesh Telecommunication Regulatory Commission (BTRC) and others, 2012, 41 CLC (HCD)
Tele Communication (Amendment) Act (XLI of 2010)
Sub-section (2) of section 39 provides that if the government is of the view that any condition of the license has to be amended, it may direct the BTRC to do such amendment and such amendments may be brought about only after seeking written statement from the licensee and after consideration of such written statement, if any. .......... (28)
Notice
Issuance of 15 days notice upon the licensee will have to be made when the terms and conditions of an existing licence are to be amended, substituted, changed or cancelled seeking written statement from it and after considering such written statement of the licencee regarding the proposed amendments. ...... (30)
Constitution of Bangladesh, 1972
Article 102
When by specific provisions under clause 9 of the Guideline the government and the BTRC exempted the application of the enhanced rate of spectrum fee in respect of the spectrum of 2008, they arbitrarily when BTRC sought to apply the MCF through the impugned memo in respect of the same spectrum, which suffers from unreasonable ness.........(32)
Consumer tax
The value added tax is called ‘consumer tax’, as it is the consumer who ultimately pays the VAT. Although the wholesaler or retailer pay VAT, but get the same credited or adjusted from the final VAT paid by the consumer. So, the ultimate burden is on the consumer. ...... (37)
Section 3(3) (গ)
VAT is collected and deposited by the seller or service provider or facility provider upon collecting the same from the purchaser or service recipient or facility recipient. ..... (38)
Section 6(4) (4 ক ক) (4 ক ক ক) (4খ) and 4 (ঙ)
The VAT has to be paid by the recipient of service or facility like Grameen Phone at source after deduction. Dispute cropped up because of the words “উৎসে কর্তন” as used in the VAT Act and rules made thereunder. In Bengali, the word ‘কর্তন’ generally connotes that some small thing is to be deducted or cut off from a bigger thing. There may be an understanding that VAT has to be deducted from the consideration or total receivable. ..... (38)
Value Added Tax Act (XXII of 1991)
Section 6, Rule 18(ঙ)
NBR has just quoted the provisions of Rule 18(O) , NBR just said that the recipient of the facility would have to pay VAT at source directly to the government exchequer after deduction. VAT is always added to the total consideration value. It is never deducted like advanced income-tax or income-tax from the income. In whichever stage one deducts and pays VAT, he has to deduct it after addition of VAT and not before addition. .......(39)
Constitution of Bangladesh, 1972
Article 102
Maintainability of writ
The agreement between the parties having already merged licences issued by the BTRC, the agreement in question has become a sovereign contract and, as such, writ is maintainable. ....... (44)
Ibrahim (Md.) Vs. Government of the Peoples Republic of Bangladesh & others, 2012, 41 CLC (HCD)
Azizur Rahman (Md.) Vs. Bangladesh and others, 2012, 41 CLC (HCD)
Restoration to section 19 for setting-aside the ex-parte decree
After
passing of the impugned order, the petitioner for the first time rushed
before this Division and obtained the present Rule. In this situation
the law enjoins that the petitioner ought to have resorted to section 19
of the Artha Rin Adalat Ain, 2003 for setting-aside the ex-parte
decree. Even in the whole process of Execution Case he did not turn up.
All on a sudden after the impugned order was issued realization came to
the petitioner and he rushed directly before this Division. The Court
disapproved the urges put by the petionior as this Division would be
loath to sit as a Court of appeal in writ certiorari. Compliance of
section 33(7) as assailed by the petitioner could impress the
Court…………….. (6)
Abdul Quader Mollah Vs. Chief Prosecutor, International Crimes, Tribunal, Dhaka, 2013, 42 CLC (AD)
Asad Ali (Md.) and another Vs. Golam Sarwar and others, 2014, 43 CLC (AD)
Section
24 of the Non-Agricultural Tenancy Act does not say about the right of
pre-emption of co-sharers of a holding but it says about the right of
pre-emption of the sharers of the land. "Land" means land. 'Land' does
not mean 'holding' or 'tenancy'. Land can be divided by partition,
holding can be divided by separation of 'joma'. After partition of any
land by metes and bounds a co-sharer remains no more co-sharer of the
land and loses all his right, title and interest in that land save and
except his own share only even if the original holding/tenancy remains
intact and there is no division or separation of tenancy.
Section
24 of the Non-Agricultural Tenancy Act has given the right of
pre-emption to the co-sharer tenants of the non-agricultural land while
section 96 of the State Acquisition and Tenancy Act has given the right
of pre-emption to the co-sharer tenants of the holding. To seek
pre-emption under section 24 of the Non-Agricultural Tenancy Act the
petitioner does not require to be co-sharer of the holding, but he
requires to be co-sharer of the land. The High Court Division,
obviously, has failed to take into consideration the distinction between
land and holding…………………………….........................(15)
In
a proceeding under section 24 of the Act the question of co-sharership
in the holding or tenancy is immaterial, however, the question of
co-sharership in the 'land' is material. After partition by metes and
bounds of the land or a holding or even of a plot or plots among its
co-sharers each of such co-sharers loses their co-sharership in all
other land of the holding or the plot or plot excepting his own share
only even if the holding or tenancy remains intact and he, therefore,
cannot claim pre-emption under section 24 of the Act if any share or
portion thereof of any other owner of holding or plot is
transferred…………….. (17)
Md. Zulfikar Mahmud Vs. National University and others, 2006, 35 CLC (HCD)
Sohel Rana Shippon (Md.) and others Vs. State, 2012, 41 CLC (AD)
Nari-o-Shishu Nirjatan Daman Ain, 2000.
Section 7 of the Ain, 2000 concerns abduction of any woman or child for any of the purposes mentioned in section 5 of the Ain. Section 8 of the Ain, 2000 concerns the offence of confining any woman or child for the purpose of extracting ransom. Section 30 covers the instigation of such offences as mentioned above.
For ends of justice, Tribunal Judges are empowered to try any other related offences simultaneously
The offences under sections 302/201/34 of the Penal Code alleged to have been committed by the appellants have not been considered by any Court or tribunal. It is true that section 27(3) of the Ain, 2000 empowers the Bicharak of the Tribunal to try any other related offences simultaneously if it is necessary to try them together for ends of justice. Therefore, there was apparent oversight on the pan of the Bicharak of the Tribunal at the time of framing the charge. There is no bar for the trial to proceed against the appellants for the offences under sections 302/201/34 of the Penal Code…… (12)
Certain norms would have been followed
If
the offences under the said Ain, 2000 and those under the Penal Code
were tried together then at the time of sentencing certain norms would
have been followed. Hence, if upon conclusion of the trial by the Court
of Sessions, the appellants, who are now charged with the offences
under the Penal Code, are found guilty then the trial Judge will be
bound to take into account the fact that the accused persons are already
undergoing their sentences awarded to them for the selfsame
occurrence………..(13)
Lakshmi Bala Sen and others Vs. Tarun Tapan Dutta @ Tapan Kumar Dutta and others, 2014, 43 CLC (AD)
When
a property sold with a condition of repurchase in the same deed in
that event a question may arise as to whether the transaction is a
mortgage or an out and out sale has to be determined on seven tests -
(i) the existence of debt, (ii) the period of payment-a short period being indicative of a sale and a long period of a mortgage; (iii) possession of the property, the continuance of the grantor in possession indicating a mortgage; (iv) existence or otherwise of a stipulation for interest on repayment indicating a mortgage; (v) adequacy or inadequacy of the consideration, an inadequate price indicating a mortgage; (vi)presence or otherwise of the stipulation of reconveyance embodied in the deed being prima facie an indication that the transaction is a mortgage; and (vii) purchase of stamps and payment of registration costs, the same, if done by the transferee, being indicative of a sale……………………………(19)
The
condition giving right of repurchase survived when President's Order
No.88 of 1972 came into effect and, as such, the sale in the case had
become a complete usufructuary mortgage within the meaning of section
95A of the Act…......(21)
Sukur Mahmood and others Vs. State, 2014, 43 CLC (AD)
The accused-petitioners having no morality could dare to sell the victim to a brothel
The High Court Division found that P.W.1, the informant and P.W.2, the victim and P.Ws.4 and 5 deposed that the accused took the victim with a promise to give her job and without doing so they sold her to a brothel and that there was no contradiction in the evidence of the victim and that of her father, P.W.1.
The conviction and sentence will serve as a deterrent and reminds of Dr. Martin Luther King Jr. who once stated as under:
"Morality
cannot be legislated, but behaviour can be regulated. Judicial decrees
may not change the heart, but they can restrain the heartless."
SM Redwan Vs. Md. Rezaul Islam and others, 2013, 42 CLC (AD)
Payment stopped by the drawer
Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under section 561 A of the Code.......(22)
Tapan and others Vs. State, 2012, 41 CLC (AD)
Though
there were sufficient evidence against the petitioners in support of
the charge, it is not clear from the materials on record that all the
petitioners have shot at the victim or that who is responsible for the
cause of death. The evidence in this connection is superficial in
nature.
As there is no conclusive evidence as regards, the principal assailant we are of the view that the ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life………………(7)
Delipjan being dead her heirs: Fazal Haque and other Vs. Shahed Badsha and others, 2014, 43 CLC (AD)
Zahidul Islam (Md.) Vs. Md. Kamal Hossain and another, 2013, 42 CLC (AD)
There is no absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. The moment the period of thirty days expires and the payment of the dishonored check is not made within the said period prematurity shall be cured ………… (11)
Anti-Corruption Commission Vs. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku and another, 2014, 43 CLC (AD)
Section
27 is an independent provision and for initiation of a proceeding
against any person under the provision, no notice is required to be
served. If the prosecution can establish that any person has acquired or
amassed wealth which is beyond his known source of income, he may be
prosecuted and convicted under section 27(1)......(5)
The
accused-respondent was also convicted under section 27(1) of the Ain on
the reasonings that he had acquired properties which were beyond his
known source of income, and said properties were also confiscated by
the learned Special Judge. True, during the relevant time, the
Commission was not properly constituted. So, the notice issued upon him
under section 26(1) by the Secretary of the Commission was without
jurisdiction. But, for this reason the High Court Division cannot
set-aside the conviction of the accused-respondent in respect of an
offence under section 27(1) of the Ain read with section 5(2) of Act 11
of 1947. And in doing so, it has not at all discussed the evidence on
record.......(6)
State Vs. Romana Begum alias Noma, 2013, 42 CLC AD
Condemned-prisoner
spent about 4 years in the condemned cell, and 13 years have elapsed
since the judgment of the High Court Division, which commuted her
sentence of death to imprisonment for life....... (17)
Bakhrabad Gas System Limited Vs. Al Masud-ar-Noor and others, 2013, 42 CLC (AD)
The accrued/vested rights of its employees can not be taken away
Service Rules
The appointing authority has every right to amend/alter the service rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service.
The appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees.
An employee shall definitely be entitled to the new service benefits if given or created by the new rules, but no rules can be framed to his disadvantage or detriment or to the denial of his accrued/vested right………………….(9)
S.N. Kabir Vs. Fatema Begum and others, 2014, 43 CLC (AD)
The
preamble cannot be used to control the enactments themselves where
they are expressed in clear and unambiguous terms. The aid of preamble
can only be taken when the meanings of the words to be interpreted are
not clear and unambiguous. The words 'immoveable property' occurring in
section 5 of the Ordinance include both agricultural and
non-agricultural properties. There is no scope for encroaching upon the
domain of legislature by importing the words 'rural area' in section 5
and addition of such words will amount to legislation by the judiciary
which is not at all permissible........................(23)
Benami Transaction
Because of benami transactions, multifarious litigations crop up across the country. Moreover, the persons having the possession of black money take advantage of benami transactions by purchasing property in the names of their nearest relatives and such transactions increase corruption in the society. So, the legislative authority had the intention to say goodbye to benami transactions once and for all…………….... (28)