Contradiction between F.I.R. lodged and evidence

When there exists serious contradiction between F.I.R. lodged by the victim and his/her evidence given in the court, the High Court Division may disbelieve evidence of the witness. Because the case is one of no evidence………………............ (10) 

Leasing out the disputed land to the respondents or their legal representatives at present market price subject to proof of their genuine title

The decision taken by the Inter-Ministerial meeting does not contravene any of the provision relating to the acquisition of immovable property.

In the light of the findings, the Court direct to lease out the disputed land to the respondents or their legal representatives, as the case may be, at present market price subject to proof of their genuine title..........................(23)

The compensation has already been deposited with the office of the Deputy Commissioner, Dhaka but the respondents could not receive the compensation because of pending litigations. Therefore, the respondents cannot take the plea of nonpayment of compensa­tion. Moreover, gazette notification has already been published and, as such, the disputed land vested in the Government free from all encum­brances. In such a situation, the Government can only lease out the acquired land to the original owners at present market price……………..(20) 

Service Matter

A permanent government servant continues to remain in service till his resignation is accepted. The general rule is that a resignation can take effect only when it is accepted by the employer....... (11 and 13)

Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance the public servant concerned has locus poenitentiae but not thereafter……..... (15)

Resignation tendered by a government official can be withdrawn before it is accepted by the competent authority....... (16) 

It is true that in the judgment sought to be reviewed, there had been no detailed discussions as to the point raised before the High Court Division that the respective petition of complaint having been filed before expiry of the statutory period as stipulated in clause(c) of the proviso to section 138(1) of the Act, was barred by law, this Division having affirmed the judgment and order passed by the High Court Division which took the view that though the respective petition of complaint was filed before expiry of thirty days from the date of receipt of the notice issued under clause (b) of the proviso to section 138 was maintainable in law….........(9) 

After the war of liberation the petition­er was all along present in Bangladesh and that his whereabouts was known to the respondent-government. As such, the criterions of Article 2 of the President's Order 16 of 1972 having not been ful­filled declaring the case property as abandoned and as inclusion in "Ka" list under Ordinance 54 of 1984 is illegal and without lawful authority. From the lower Court records, it further appears that all the relevant documents which were filed in "firisty' in connection with Case No. 762 have been annexed to the present writ petition as well as the supplemen­tary affidavits and that those were neither disputed nor controverted by the respondent-government by filing affidavit-opposition as such those documents stand in support of the assertions made by the peti­tioner……………………(8)

The issuance of the letter dated 16-8-2004 by the National Housing Settlement Authority and acceptance of challan submitted by the respon­dent No. 4 on 16-8-2004 is a clear violation of the order of status-quo passed by this Court. Such action of the Administrative Officer of the said Authority is totally unacceptable and is deprecated. However, from Annexures 2A and 2B it appears that the gov­ernment is in management of the case property under Rule 10 of the Bangladesh Abandoned Property (Building in the Urban Area) Rules, 1972………(9) 

Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, (Ain XVIII of 1995); Section 6(2) Nari-O-Shishu Nirjatan Daman Ain, 2000 (Ain VIII of 2000); Section 34.

Whether section 6(2) of the Ain, 1995 and section 34 of Ain of 2000 are ULTRA VIRES the Constitution.

Operative Part:

• Sub-sections (2) and (4) of section 6 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, sub-sections (2) and (3) of section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 303 are declared ultra vires the Constitution.
  
• Despite repeal of the Ain of 1995, the pending cases and pending appeals in respect of those offences shall be tried and heard in accordance with the provisions of the Ain of 1995, but the sentences prescribed in respect of similar nature of offences in the Ain of 2000 shall be applicable.
  
• There shall be no mandatory sentence of death in respect of an offence of murder committed by an offender who is under a sentence of life imprisonment.  
  

Non Agricultural Tenancy Act (XXIII of 1949); Section 24

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. …………………. (15)

In a proceeding under section 24 of the Act the question of co-sharer ship in the holding or tenancy is immaterial; however, the question of co-sharer ship 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)