Search Options
Judgment Search By Title
The
provisions as contemplated under section 5(7) of the Emergency
Requisition of Property Act, 1948 is a directory one or
mandatory………..(5)
The provisions of section 5(7) if not performed earlier can be perfected, by performing subsequently by the authority regularising the same and simply because of such omission a right does not accrue in favour of the petitioners to get back the property from the authority……..(7)
Since
the possession of the land had already been delivered to the
requisitioning body the requisitioned land is not liable to be
released. The land in question still lying unutilised with the authority
and the compensation was assessed by the authority was declined by the
petitioners to accept……………(9)
General Manager, Meghna Petroleum Ltd. and others Vs. Sultan Ahmed and others, 2010, 39 CLC (AD)
When
an employee challenges a transfer order, the High Court Division
instead of interfering with such order can direct the department to
enforce the transfer order and to take suitable action against erring
persons of the autonomous body.
An order of transfer is not an action affecting, altering or infringing upon right to office one holds and while exercising jurisdiction of judicial review the High Court Division cannot sit over the internal administrative actions taken an autonomous body…….(4)
Mortuz Ali Khalifa Vs. Jobeda ® Kalu Bibiand others, 2014, 43 CLC (AD)
Recall the plaintiffs' witnesses for cross-examination
It is a cardinal principle of law that every party to litigation must be given opportunity to place his case with relevant evidence.
It is also an established principle and a requirement of law that a party to the suit may be given the opportunity to call witnesses and produce any evidence at any time during the trial. The trial does not finish until pronouncement of judgment…………. (5)
Asek Elahi Vs. Jalal Ahmedand others, 2012, 41 CLC (AD)
Sections
95 and 95A are special laws promulgated for the protection of poor
tenants, maliks or raiyats from the clutches of the moneyed men or
ex-landlords for restoration of mortgaged property in a summary manner
without the intervention of the Court and payment of Court fees. But
these provisions, however, do not take away right of redemption of
mortgaged property available to a mortgagor by filing a suit for
redemption…………… (23)
The use of the word 'sale' is conditional and intended as security for the debt, inasmuch as in place of sale deed it was mentioned as conditional sale. It was also recited that if the recipient of the deed failed to hand over possession on the demand of the vendors on repayment of principal amount in due time, they would be entitled to redeem the land through the process of the Court after the expiry of the period of 5 years. The parties intended to execute the deed for a limited period of 5 years in respect of the land which could be redeemed within the said period if the vendors had paid the amount received from the vendee. If the intention of the parties is to create a security for a debt, it will be a mortgage………………….. (32)
The relationship of debtor and creditor does not cease to exist in the case and it is not an absolute sale merely because the vendors stipulated that they shall have a right to repurchase, therefore, no doubt that the transaction was a mortgage by conditional sale within the meaning of section 58(c) of the Transfer of property Act and the period of limitation for redemption of such mortgage is 60 years from the date of expiry of years from 21 April 1941. The suit is, therefore, not barred by limitation or in the alternative, the transaction is not past and closed one…….. (33)
it does not appear that the question as to the right of redemption of a mortgage by way of filing a suit in civil Court within a period of 60 from the date of accrual of such right was and decided, but this question was precisely raised and decided in 34 DLR (AD) 237 and 12 MLR (AD) 329……………(58)
Durnity Daman Commission Vs. Durnity Daman Commission, 2014, 43 CLC (AD)
Anticipatory
Bail is an extra-ordinary remedy and an exception to the general rule
of bail which can be granted only in extra-ordinary and exceptional
circumstances upon a proper and intelligent exercise of discretion. The
High Court Division cannot exercise its discretion whimsically at its
suit will.
Intekhab Ahmed Khan Vs. Sabbir Ahmed Chowdhury, 2014, 43 CLC (AD)
A tenant is liable to be evicted under the Premises Rent Control Act
(1) if he is a defaulter in payment of rent
(II) if the landlord needs the suit premises for bona fide requirement and
(III) if the tenant denies the title of the landlord.
Even after expiry of the tenure of lease, the tenancy may continue as tenancy by holding over and the tenant is liable to be evicted only on above mentioned grounds……… (19)
Bona fide requirement is based on proper appreciation of the evidence, both oral and documentary………….. (18)
A tenant's continuous possession with landlord's assent creates an implied contract constituting a tenancy by holding-over. Such a tenancy cannot be created by the tenant's continuance of possession alone and there must also be the assent of the landlord, which may be expressed or implied…………… (20)
In the instant case, though the respondent continues his possession by holding over, he is liable to be evicted as the appellant needs the suit premises for his bona fide requirement………….(21)
State Vs. Dr. Fazlur Rahman, 2014, 43 CLC (AD)
No Court of law can give any protection or entertain any application by a person Fugitive from Justice
An accuse person who avoids the process of any court is a fugitive from justice and can not seek justice without surrendering before a court of law.
A man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistant of the process of justice in order to claim right of audience against the process of the Court issued against him.………. (7 & 8)
Shawkat Hossain (Md.) and another Vs. Golam Mohammad and another, 2014, 43 CLC (HCD)
When Court obtains expert's opinion
Where other evidence produced before Court are sufficient to prove the genuineness of any disputed signature or document the Court may not insist for expert's opinion, but where the evidence adduced before Court are not sufficient for proving a disputed signature or document the Court should obtain expert's opinion......(13)
The disputed signature of the defendant No. 1 in the alleged bainapatra the exhibit-1 should be examined and compared with some admitted signatures of the defendant No.1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate Court below................................ (14)
Zahirul Islam @ Dipu (Md.) Vs. State, 2013, 42 CLC (AD)
Where
a grave and heinous crime has been committed but in absence of any
satisfactory proof of the guilt, in this constriction, question of
benefit of doubt favors the accused
It is undoubtedly the duty of the prosecution in a case involving capital sentence to place before the court all available witnesses irrespective of their evidence being favourable or unfavourable. Where a necessary witness mysteriously not cited as witness, the court may properly draw an inference adverse, to the prosecution. If a material witness has been deliberately kept back, then a serious reflection is cast on the validity of the conviction.
No evidence that at or about the time of murder, no third person, excepting the appellants and the deceased were present at the place of occurrence. It can be a case of "may be true". But there is distance between "may be true" and "must be true". The same divides conjecture from sure conclusion.
A grave and heinous crime has been committed but there is no satisfactory proof of the guilt, the Court have no option but to give the benefit of doubt to the accused……… (19-22)
Government of Bangladesh and others Vs. Jamaluddin and another, 2012, 41 CLC (AD)
Opportunity to educational institutions of being heard complying the demand of natural justice.
Admittedly, all the three educational institutions in questions were included in the list of MPO by the authority concerned.
Before excluding these educational institutions from the list of MPO the authority concerned ought to have assigned reasons for doing so and also given opportunity to these educational institutions of being heard complying the demand of natural justice.
Admittedly,
the authority concerned did not assign any reason for excluding the
educational institutions in question from the list of MPO nor they gave
any opportunity to these educational institutions of being heard.
The
High Court Division rightly declared the impugned memo excluding the
name of the educational institutions in question from the list of MPO
illegal and rightly directed the respondents to include the name of
these educational institutions in the list of MPO within the specified
time if these educational institutions fulfill the requirements. . . . .
. . (12)
Director General, Bangladesh Standards and Testing Institution Vs. Matiur Rahman and others, 2014, 43 CLC (AD)
No attempt has been made to attack the finding of the High Court Division on Service Matter
Having been considered the provisions of sections 36(1), 36(2) of the Ordinance, relevant rules of the Rules, the High Court Division took correct view in the matter as to the right of the writ-petitioner in getting promotion to the post of Deputy Director in BSTI.
In the leave petition though it has been stated in a general way that the writ-petitioner was appointed in a temporary post under a development project under CTL on purely temporary basis and "he had not been regularized", the memos relied upon by the High Court Division in coming to the finding that the petitioner and 11 others were transferred to the revenue budget from the development budget with effect from 1-7-1989, have not been specifically controverted. The writ-respondents took similar stand before the High Court Division, but it rejected their contention with reference to the memos. In the leave petition, no attempt has been made to attack the finding of the High Court Division in that respect…………….. (15)
Commissioner of Customs, Excise and VAT Commissioner of Customs, Excise and VAT Vs. Appollo Steel Mills Ltd and others, 2013, 42 CLC (AD)
Duty of the concerned VAT authority
If the VAT authority may have any justifiable 'demand against the petitioner, they can raise and get adjudicated the same in accordance with the provisions of the VAT Act. But they cannot adjust any disputed amount, which was never adjudicated under section 55 of the VAT Act.
When the application for cancellation of the VAT registration was filed under section 19(1) of the Act, it was the duty of the concerned VAT authority to move in the matter and give his decision. The concerned VAT authority must have remembered that he, being a Government functionary, was duty bound to act as per the dictate of law this way or that way and, for no reason and logic, he could just sit over the matter………………………(15)
Ali Haider Chowdhury Vs. State, represented by the DC, Dhaka and another, 2015, 44 CLC (AD)
On Illegal transaction
Though the name of petitioner was not in the FIR nor in the statements of the witnesses under section 161 of the Code, he was a beneficiary of the alleged illegal transaction which was allegedly done in connivance with the accused named in the FIR and the charge-sheet. Since the petitioner was engaged in the said transaction and was also a beneficiary of it, a prima facie case of abetment regarding manipulation of the tender for sale of the abandoned property had been disclosed against him in the materials collected by the prosecution.
By taking evidence the trial Court has to resolve disputed questions of fact whether petitioner had any role in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case property or whether he is a bona fide purchaser for value.………… (8-10)
State Vs. Engineer Monjurui Ahsan Munshiand another, 2015, 44 CLC (AD)
No notice required for distinct offences
Offences punishable under sections 26 and 27 of the Ain, are distinct offences and that no notice is required by the Commission for prosecution of an offender in respect of an offence punishable under section 27 of the Ain.
The
respondent was also found guilty under section 5(2) of Act II of 1947
and for prosecution of that offence no notice is required to be served
upon the accused person...........(6-8)
Asadul Hossain (Md.) Vs. State, 2005, 34 DLR (HCD)
Emarat Ali Vs. State, 2005, 34 CLC (HCD)
Under
section 5 of the Limitation Act, the petitioner is entitled to
condonation of delay if he can satisfy the court that he had sufficient
cause for not making the application within the period fixed by statute.
Where the Court before exercising the power under section 5 of the Limitation Act, feels satisfied upon the facts of the case under consideration that the explanation given for the delay is sufficient, the discretion under section 5 of the Limitation Act should be exercised and the court should take a liberal view in considering the sufficient cause shown by the applicant.
When the court is satisfied that a circumstance or a set of circumstances shown by a party, justified the act or omission of such party for not preferring appeal within prescribed period, the court can extend the time. The section gives a discretion in determining what sufficient cause.
A genuine or good cause or a cause which is beyond the control of a party or a cause which is unavoidable despite care and attention may constitute sufficient cause. Sufficient cause means something beyond the control of the party. What constitutes sufficient cause cannot be laid down by hard and fast rules. Broadly speaking, however, it connotes something beyond the control of the party. It must be determined by a reference to the circumstances of each particular case…………………..(28-30)
Chairman, RAJUK Vs. MN Alam and Associates Limited, 2004, 33 CLC (HCD)
In
the circumstances and on the failure of the parties to concur in the
appointment of an arbitrator, only course open to a party to the
contract was to move the Court under section 8(1)(a) of the Act for
appointment of an arbitrator. None of the parties has any right to
appoint any arbitrator independent of the agreement and ask other party
to concur. The course adopted by the consultant could only be accepted
when the agreement provides that the reference shall be to two
arbitrators, one to be appointed by each party within the understanding
of section 9 of the Act…………….(16)
An ex parte judgment may not be as exhaustive as required by rule 4(2) of Order XX of the Code but it must be a reasoned one. Every citizen has got a right to a reasoned judgment. Section 17 of the Arbitration Act does not exempt Court from the duty as mentioned above even when no one appears opposing the award. Section 17 of the Act requires of the Court first to see as to whether there was any cause to remit the award or any part of the matters to arbitration for reconsideration under sections 15 and 16 of the Arbitration Act………….(23)
Section 15 of the Arbitration Act provides for modification and correction in number of ways. Section 16, on the other hand, empowers the Court to remit the award on particular points to the arbitrator for reconsideration. Section 17 also requires of the Court to see as to whether there was any reason for setting aside the award. Section 30 of the Arbitration Act provides for the grounds on any of which the award may be set aside. The grounds are namely,
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after the arbitration proceedings have become invalid under section 35;
(c) that an award has been improperly procured or is otherwise invalid.
An arbitrator derives his jurisdiction from the arbitration agreement as executed by the parties. He is empowered by the parties to decide only those disputes which are referred to him………………….(24-26)
AZM Tajul Islam vs. Government of Bangladesh and others, 2014, 43 CLC (HCD)
Hafizur Rahman Nafor Vs. Secretary, Ministry of Home Affairs and others, Secretary, Ministry of Home Affairs and others, 2015, 44 CLC (HCD)
Kalim Ullah (Md.) and others Vs. Fariduddin Ahmed, 2012, 41 CLC (AD)
A
mutawalli cannot grant lease of any part of waqf property in perpetuity
with prior sanction of the Administrator. The language used in this
section is so explicit that the mutawalli can exercise the right of
transfer by way of lease for a period exceeding 5 years with prior
approval of the Administrator.
The words and figure 'exceeding 5 years' are wide enough to infer to any period. There is no scope to read the word 'exceeding' in a narrower sense like 'otherwise than in perpetuity' in view of the fact that if we read the words 'by way of sale' with the words and figure 'by way of lease for a term exceeding 5 years', there is no doubt that the intention of the Legislature is wide enough to infer a transfer by way of lease in perpetuity. The words or by way of lease for a term exceeding 5 years shall be void' used after 'comma' before the word 'exchange' are clear enough to arrive at a conclusion that the mutawalli can transfer by way of lease of the nature provided he had obtained previous sanction of the Administrator………………………..(48)
Transferring any part of the waqf property could only be held when it is for the improvement and benefit of the waqf.
Before granting sanction the Administrator must be satisfied that such transfer is necessary for the improvement and benefit of the waqf and not to cause any injury, waste or loss of the waqf...........................(83)
Transfer of any immovable property of a waqf
In case of transfer of any immovable property of a waqf by a mutawalli by way of sale, gift, mortgage or exchange, the only bar has been created by the legislature is that before such transfer previous sanction of the Administrator of Waqfs must be accorded and without such sanction transfer so made shall not be valid. So far as the lease is concerned, the mutawalli has been empowered to lease out any immovable properly of a waqf up to 5 years, and beyond that only with the previous sanction of the Administrator of Waqfs, proviso to the section has given a further rider that even the sanction by the Administrator shall not validate any transfer which is in contravention of any other law for the time being in force or is otherwise invalidate............. (77)
No bar in according sanction by the Administrator of Waqfs to the mutawalli of a waqf estate to transfer its immovable property by way of sale, gift, mortgage or exchange.
Transfers by sale, gift, or exchange is definitely permanent in nature though as per section 58 of the Act mortgage is the transfer of an interest in specific "immovable property" for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. So, when in the same section, the Administrator of Waqfs has been given the power to accord sanction to the mutawalli of a waqf to transfer any of its immovable property by way of sale, gift, or exchange then it will be a too narrow interpretation to say that the legislature did not mean to empower the Administrator of Waqfs to accord sanction to a, mutawalli to lease out any immovable property of Waqf permanently but only of temporary in nature, that is, periodic lease. ................(82)