Case no.

BLAST and others vs.

Bangladesh and others 55 DLR (2003) 363

Facts:BLAST, Ain o Salish Kendra, Shonmilito Shamajik Andolon and several individuals filed
a writ petition in the High Court challenging the abuse of police powers to arrest without warrant
under Section 54 of the Code of Criminal Procedure (CrCP) and the abuse of powers regarding
taking the accused into remand (police custody) under Section 167 of the CrPC. The petitioners
referred to recent incidents of gross abuse of power, including allegations of custodial death,
torture and inhuman treatment, especially the killing of a young student, Rubel, in remand after
arrest under Section 54 of the CrPC.

Argument:The petitioners argued that law enforcing agencies routinely abuse the powers
granted under Sections 54 and 167 of the CrPC, and further that these provisions suffer from
vagueness and allow for arbitrary exercise of power. The petitioners argued that the Court should
enunciate safeguards to prevent or curtail police abuse of powers and arbitrary actions by
Magistrates, which constitute violations of citizens’ fundamental rights to life and liberty, to
equal protection of law, to be treated in accordance with law and to be free from cruel, inhuman
and degrading treatment and punishment as guaranteed under articles 32, 27, 31, 33 and 35 of the
Constitution.

Order: The High Court initially issued a Rule Nisi, and upon full hearing delivered judgment on
07.04.2003, observing that Sections 54 and 167 of the CrPC are not fully consistent with
constitutionally guaranteed freedoms and safeguards. The Court laid down a comprehensive set
of recommendations regarding necessary amendments to both sections of the CrPC, along with
the Police Act, The Penal Code and the Evidence Act, and directed that these should be acted
upon within six months. It also laid down a set of fifteen guidelines with regard to exercise of
powers of arrest and remand:
 No Police officer shall arrest anyone under Section 54 for the purpose of detention under
Section 3 of the Special Powers Act, 1974
 A police officer shall disclose his/her identity and show his/her ID Card on demand to the
person arrested or those present at the time of arrest
 A record of reasons of arrest and other particulars shall be maintained in a separate
register till a special diary is prescribed
 The concerned officer shall record reasons for marks of injury, if any, on the person
arrested and take him/her to nearest hospital or government doctor
 The person arrested shall be furnished with reasons of arrest within three hours of
bringing him/her to the Police Station
  If the person is not arrested from his/her residence or place of business, the relatives
should be informed over the phone or through messenger within one hour of bringing
him/her to Police Station
 The person concerned must be allowed to consult a lawyer of choice or meet nearest
relations
 While producing the detained person before the Magistrate under Section 61 of the CrPC,
the police officer must forward reasons in a forwarding letter under Section 167 (1) of the
CrPC as to why the investigation could not be completed within twenty four hours and
why s/he considers the accusation and information to be well founded
 On perusal of the forwarding letter, if the Magistrate satisfies him/herself that the
accusation and information are well founded and materials in the case diary are sufficient
for detaining the person in custody, the Magistrate shall pass an order of detention and if
not, release him/her forthwith
 Where a person is released on the aforesaid grounds, the Magistrate shall proceed under
190(1)(c) of the CrPC against the Officer concerned under Section 220 of the Penal Code.
 Where the Magistrate orders detention of the person, the Officer shall interrogate the
accused in a room in a jail until a room with glass wall or grille on one side within sight
of lawyer or relations is constructed
 In any application for taking accused in custody for interrogation, reasons should be
mentioned as recommended
 The Magistrate while authorizing detention in police custody shall follow the
recommendations laid down in the judgment
 The police officer arresting under Section 54, or the Investigating Officer taking a person
to custody or the jailor must inform the nearest Magistrate about the death of any person
in custody in compliance with these recommendations
 The Magistrate shall inquire into the death of any person in police custody or jail as per
the recommendations.

Status:The Government has preferred an appeal (Civil Appeal No. 53/2004), which is now
pending before the Appellate Division. However, no stay was granted and the Guidelines are in
force.
 Case No.2
Mazor
General Moinul Hossain Chowdhury Vs. govt. of Bangladesh 50 DLR 1998

Fact:
This writ petition under Article 102 of the Constitution of Bangladesh is at the instance of the
petitioner Mazor General Moinul Hossain Chowdhury. By this petition impugns the notifications
dated 27-8-1994 & dated 27-8-1994 appointing Mazor General Abu Saleh Mohammad Nasim
Chief of the Staff Bangladesh Army with effect 31-9-1994 & promoting him to the rank of the
General under Notification No. 1 pa-2/9/90/D-18/229 dated27-8-1994 & the Notification no 1-
pa-2/90/D-18/130 dated 3-9-1996 appointing Mazor General Muhammad Mahbubur Rahman
PSC to the post of chief of the staff of the Bangladesh Army till 23-12-1997 & promoting him to
the rank of Lt. General under notification No. 1-pa-2/90/D-18/131 dated 3-6-1997 of the
Government of Bangladesh, Ministry of Defense. The petitioner while holding the post of
Major General having been promoted on 8-8-80 his service was placed at the
disposal of the Ministry of Foreign Affairs for appointment as Ambassador after
assassination of President Zi\ur Rahman. The petitioner although got such
appointment but he was victimized by supersession detrimental to the service condition.

Issue:
whether the order of a retiring member of disciplined force is
passed can be made under the judicial review or not?
Argument of the Appellant:

The appellant had been superseded by Mazor General Mohammad Nasir&Mazor General
Mahbub Rahman who are junior to him. He was superseded by Mazor General Abu Saleh
Mohammad Nasir in 1994 & by Mazor General Mahbub Rahman in 1996. While promoting
them to the rank of Lt. general. The petitioner was not notified of the first supersession it was a
temporary one & he need not challenge the same & as such, this petition is not a delayed one.
The petitioner had been superseded by the respondents 3 & 4 twice, he was entitled to a notice of
such supersession as required under Rule 1960 of the Army Regulations. The notifications are
violative under Articles 27, 29, & 31 of the Constitution.
Argument of the Respondent:
The petitioner is a member of the disciplined force & the impugned orders relate to the terms &
conditions of service of the Defence personnel & as such the petition is not maintainable. The
petitioner himself having accepted the assignment in the Ministry Of Foreign Affairs he has no
reason to move this petition after long lapse of time & as such, this application also suffers from
inordinate delay. This petition also hit by Article 45 of the Constitution.

Decision:
The petitioner was permanently superseded by Mazor General Abu Saleh Mohammad Nasir
dated 27-8-1994 this petition also suffer from inordinate delay. The court reject this petition in
limine without any order as to cost.

Reasoning:
The petitioner was not retained in military service & as hewas holding the post of Ambassador
the question of informing about his supersession by 1st notification does not arise as he was
superseded permanently. The petitioner was superseded by the 4 respondent without considering
his case is not at all tenable as the time of the supersession he will not be considered again as
provided in Rule 1960 of the Army Regulations.

Principles :A servant of the Republic cannot claim promotion as of right

Case No. 3
Mrs Anawara Begum wife of Mr. Hannan ,Md. Abdul Gafur & Anwar
Mollah

Vs. Govt. of Bangladesh & two others30 DLR 1978.

Fact:

In writ petition no. 267/77 the detenu is Arijitullah Sheikh & the petition had filed by his
mother-in-law Mrs. Anawara Begum. The detenu is detained under the order dated 23-3-77
under the rule 5(1) (a) Emergency Power Rules, 1975. It is stated that there is no reason for
which the detaining authority made the order of detention & the detenu did not in indulge in any
prejudicial activity

In writ petition no. 352/77 the detention of Haji Abu Taleb has been challenged by his son Abdul
Gafoor. The detenu has detained by an order dated 28-5-77 under Rule 5(1) (a) of the Emergency
Powers Rules. It is stated that the detenu never indulged in any prejudicial activities & there is no
specific reason against the detenu in any court.

In writ petition no. 213/77 the detention of Abdullah Dalal has been challenged his counsin
Anwar Mollah, the petitioner. It is stated that the detenu is detained by an order dated 28-3-77
under rule 5 (1) (a) of the Emergency Powers Rules. It is stated that the detenu had never been
indulged in any prejudicial activities.

Issues:

Whether the detention had been made with the reasonable grounds or not?

Argument of the Appellant:

In writ petition no. 267/77, the detenu did not indulged in any prejudicial activities.

In the writ petition no. 352/77 the detenu had been harassed & there is no specific evidence of
smuggling against the detenu in any court.

In writ petition no. 213/77 the detenu had never indulged in any prejudicial activity.

Argument of the Respondent:

In writ petition no 267/77 it is stated that the antecedents of the detained was considered by the
District Anti-Smuggle Committee as his name was mentioned in the agreed list of smugglers.

In writ petition no 352/77 it is stated that the detenu as a habitual & veteran smuggler &
antecedents were verified by various agents & on consideration of reports his name been placed
in the list & that has ordered his detention.

In writ petition no. 213/77 the detention has become necessary because the detenu has been
mentioned as a veteran smuggler & his name is mentioned in the list of smugglers.
Decision:
the detention cannot be declared as illegal without lawful authority and in this view matter the
court discharged the Rules. It is the province of the court to anything in the matter.

Reasoning:
A person cannot be kept under detention for in the period in the absence of any specific reason
against him. The detaining authority have felt there was no sufficient evidence admissible. The
activities of the person ordered to be detained were of such nature as to justify the order of
detention. There would be no legal bar to the making of detention order in such a case.

Principle:

 When detention is not challenged by the respondents the detenu is to be raised

forthwith.
 The executive can detain a person when it sees that sufficient evidence would not be
collected or witness could not be practiced because of the powerful influence of the
detenue.

Case
No. 4
Golam Murtaza Bhuiyan vs Government of Bangladesh 48DLR (AD)(1996)47
Facts: In writ petition,The four petitioners elected members of the Salimabad Union Parishad
challenged a direction of the Ministry of Local Government with regard to selection of a site for
permanent building of the Union Parishad Cum Community Centre.The petitioners case is that
office of the local union body has been functioning for last fifty years from a centrally located
place at Tebaria.In the budget of 1992-93 the Government sanctioned Taka 6 LACS for
development of the union parishad cum community centre.With a view to building the proposed
centre in the localality the Chairman fraudulently got resolution for shifting the office of the
union parishad.It is alleged that the signature of some members of the Union Parishad were
taken in a white paper meant for distribution of wheat and subsequently the questioned
resolution was fraudulently written on it.

Decision: The petition was dismissed.

Argument:The High Court Devision found that that the resolution of the Union Parishad was
legally made and it was for constructing a new Union Parishad Office cum Community Centre at
the new location.

Counter Argunent: The decision to shift the office of the Union Parishad was in violation of
the Government Circular dated March16,1987 and that the Minister acted illegally in violation of
the following Rule4(6) of the Rules of Business.

Reasoning: There was no conflict between the government and local body.

Principle: The grievance of the petitioners can not be examined in summary proceeding under
Article 102 of the Constitution.

Case
No. 5
Government of Bangladesh and others Vs. Saleha Akter
[17 MLR 2012 (AD) 328]
Analysis of Fact:
The petitioner complying with all the formalities, applied for the post of Assistant Teacher of
Government Primary School. The authority finding her suitable candidate issued appointed letter
and therefore, the petitioner submitted joining report to the respondent No. 4 who instead of
accepting the joining report issued a letter addressing the respondent No. 5 intimating him that
hand writing of the petitioner as appeared in the application for appointment and the joining
report does not appear to be identical. And subsequently the appointment of the petitioner was
cancelled. On 10.05.2008 the petitioner served a legal notice demanding justice for cancellation
of the impugned order and accept the joining report but the respondents did not pay heed to it.
Being aggrieved by and dissatisfied with the impugned memo the petitioner preferred this writ
petition and obtained the Rule.

Argument on behalf of the Petitioner:

1. Mr. Rajik-Al-Jalil, learned Deputy Attorney General Appearing for the petitioners has
submitted that, according to paragraph 12 of advertisement for the recruitment of the
Assistant Teacher, it was mandatory that the candidate must submit his/her application
with his/her own hand writing. Moreover, the signature appearing on the application was
not of her own. According to the circular the selection shall be cancelled of those
 candidates who have not submitted their application of the own hand writing and
signature. The petitioner in this case did not submit her application in her own hand
writing and thus she violated the terms and conditions of the advertisement and for this
reason her final selection for the post of Assistant Teacher has been cancelled by the
authority as required by the Rules and Regulations but the High Court Division ignoring
all those materials made the Rule absolute and gave direction and thereby, committed
error of law making the Rule absolute.

Argument on behalf of the Respondent:

1. Mr. Md. Fazlur Rahman, the learned advocate appearing for the respondent no. 1 (writ
petitioner) supported the impugned judgment and order.

Decision:
The leave petition is dismissed without any order as to costs as the High Court Division found
that, those hand writings are similar and identical on the basis of the pen stroke, pen stop and
nature of writing. The Appellate Division also opined, it was wise for the High Court Division to
obtain expert opinion

Principle:
Writ petition to protect the possession of the disputed property (flat) is maintainable, if there is
no other effective ground that the court find no substance in the submission of the learned
advocate for the petitioner.

Case No.6
NasrinKader Siddique vs. Bangladesh and others. [44 DLR (AD) 16]

Fact: In that writ petition the appellant challenged the detention of her husband, Abdul Kader
Siddique, by an order under the Special Power Act 1974. He was arrested on 17th January 1991
and impugned order of detention was shown to him. It was contended that the impugned order
was violative of fundamental rights guaranteed under article 27, 28, 31, 32 and 33. The
respondents did not controvert the statement made in the writ petition. Their case is that the order
of detention under the Special Power Act is withdrawn and so writ petition had become
infructuous. The detenu is now in custody as a convict, upon conviction by Special Martial Law
Court under the Martial Law Regulation 1975. Then the respondents produced before the court a
copy of warrant of commitment issued by Additional District Magistrate, Tangail.

Decision: The order of detention is without any lawful authority and on that score alone the
detention of the detenu is liable to be set aside.

Reasoning: There was a proclamation, dated 7thApril 1979, revoking The Proclamations of
1975, 1976 and all martial law regulations and orders and making provision consequential
incidental thereto. Clause (k) of the said proclamation provides that, the every sentence of
imprisonment or whipping passed in any case by Special Martial Law Courts, shall, after the
commencing day, be putting to execution under the warrant of the session judge of that area as if
the sentence is passed by him. The sentence remained unexecuted for 14 years. If the sentence is
to be executed now, it can only be executed by the authority and in the manner prescribed by the
saving clauses and by no other authority and in no other manner whatsoever. So the custody
order passed by Additional District Magistrate, Tangail would be irregular, illegal and unlawful.
That order could only be issued by the session judge.

Principle:If there is no defect in the conviction a writ of habeas corpus will not bre granted,not
withstanding that the warrant of commitment is patently bad.

Case No.7
Bangladesh Vs Md. Azizur Rahman 46 DLR(AD)19
Facts in Brief: MdAzizur Rahman, the petitioner had been appointed on ad-hoc basis as an Assistant
Engineer (Mechanical) in the Roads and High Ways Directorate, Government of Bangladesh for a period
of six months on 21 May 1976 or till regularization of his appointment by the Public Servant Commission
(PSC). In 1977 the PSC by an open advertisement held an interview called Competitive Examination for
appointment of Assistant Engineers on regular basis which made a recommendation in order of merit for
regular appointment. Md. Azizur Rahman was placed in the third position in order of merit in that exam.
One of his colleague, respondent no.6 who was not qualified in any of the interview but was regularized
from 30 June 1983. Along with the Ad-hoc appointees some fresh candidates had also got
recommendation for regular appointment with effect from 16 August 1977 and their seniority counted
from the date of the recommendation of the PSC according to the General Principles of Seniority (1970).
Again their inter se seniority was determined on the basis of merit assigned by the PSC. Petitioner
claimed to have acquired a “vested right” of seniority over the respondent who were placed before him in
order of merit assigned by the PSC, but Government, by a Memorandum also called Circular, dated 22
April 1984, tried to alter this order of seniority and directed that seniority of the ad-hoc appointees, after
regularization, would count from the date of their ad-hoc appointment, which meant that seniority on the
basis of merit was given a go-by and the Petitioner was to be junior to respondent no. 3-11. The
provisions of this memorandum were made into statutory Rules, that is, the Ad-hoc Appointment
(Counting and Determination of Seniority) Rules, 1990, published on the Official Gazette on 8 November
1990. The Petitioner challenged these Rules in his Writ Petition taking the ground that these Rules not
only affected his vested right of seniority, but also violated the equality-clause of Article 27 and also the
right to equal opportunity for public appointment guaranteed under Article 29 of the Constitution. After
hearing the parties the High Court Division accepted the Petitioners’ contention but rejected their
contention that their vested right could not be affected by statutory Rules with retrospective effect.

Reasoning:

1. Just after the Independence of Bangladesh the Public Service Commission was not in a position to
appoint employees for various reasons particularly for non-existence of any Recruitment Rules. But
immediate appointment of persons both against Revenue Budget and Development Budget has to be
made. In these circumstances, Government as a matter of policy, decided to appoint persons only on Ad-
hoc basis to be regularized in due course through the PSC from 1972 to 1977. Some of these Ad-hoc
appointment were made in prior consultation with the PSC but all Ad-hoc appointment were made subject
to regularization by the PSC.

2. Classification of persons for making a law is permissible. This classification is not class legislation.
The term “equality before law’’ should not be interpreted in its absolute sense to hold that all persons are
equal in all respects disregarding defined conditions and circumstances in which they are placed or
special quality and characteristics which some of them may possess but which are lacking in others. This
term means that all persons are not equal in all respects and that persons similarly situated should be
treated alike. Therefore a classification is reasonable if it is made to give special treatment to a backward
section of the people.

3. The guarantee of “equal opportunity’’ in respect of employment is available at the stage of initial
appointment and of promotion. Merely because of chances of promotion of the Writ Petitioners may be
said to have been affected by the impugned Rules of 1990 would not amount to denial of equality of
opportunity in respect of the appointment, as chances of promotion are not condition of service. As a
matter of fact, no Writ Petitioners have been deprived of the right to be considered for promotion and as
such, the submission that they have been denied the right of equal opportunity in respect of future
employment is untenable and there is in fact no violation of Article 29(1) of the Constitution.
Decision:

It has been decided in this case that there is no violation of fundamental rights as contemplated in Article
27 and 29(1) of the Constitution.

Principle:Equality before law should not be interpreted in its absolute sense to hold that all persons are
equal in all respects regarding defined conditions and circumstances .

Case No.8
ETV LTD VS DR CHOWDHURY MAHMOOD HASAN (54 DLR AD 130)

FACT:

In 1998, Ministry of Information invited tenders from local and foreign firms to install and operate a
television channel under private ownership . Accordingly ,the proposals of the participants in the tender
were evaluated .

The writ petitioners alleged that after submission of the evaluation report (1st report),the technical
committee came under heavy pressure from an interested group .As a result the committee changed the
evaluation report ETV which was in the rejected list in the earlier and original evaluation report ,was
placed at the top of the list .

The petitioner alleged that this evaluation report (2nd ) was totally malafide ,unauthorised and
unacceptable .

DECISION :

The changing of the evaluation report is malafide,the process of evaluation report is not transparent and
subsequent action taken on the basis of the changed report are malafide and the licence given to ETV is
not therefore sustainable in law .

REASONING: Law requires that subsequent change of terms and conditions of tender must be relayed
to each and every participants so that all the participants can avail of equal opportunity while
participating in the tender .But in this case subsequent change of conditions were kept secret to other
participants .
As a result of which requirement of law are not met with and other participants were discriminated and
deprived of participation in the tender on equal terms.

Case No. 9
Habiba Mahmud Vs. Bangladesh 45 DLR (AD) (1993)
Rule of Law:

 Section 8 of Special powers Act.

 Article 102,35(5) Constitutional Law of Bangladesh,1972

Fact:

The appellant’s husband Kazi Mahmud Hossain who was arrested on 20,1991 in pursuance of an
order of detention dated august 18,1991 under section 3(1)(a) of the special powers act,1974.

This appeal by leave is directed against the judgement and order dated March 2,1992 of the
HCD,discharging the rule issued in appellant’s writ petition no.1883 of 1991 under Article
102(2)(b)(i) of the constitution.

Argument and Counter Argument:

Argument in favour:

 The appellant contended that his younger brother kaziFerozRoshid,minister in the last
govt –the order of detention was passed for ulterior &malafide purpose to harass and
humiliate the detenue.
 The operative portion of the grounds are vague and insufficient.
 No specific reason would have been found for the order of detention before his arrest
 In Sk. SerajulVs.StateBengal(1975)-in this case,the appellate divisionset aside that
judgement and declared that the order of detention was without lawful authority.
 No live link between the grounds of criminal activity and the purpose of detention.

Counter Argument:

 The detenu being invoived in anti-social activities and in a mission to hit the highest
law officer in the count
 His mixing up with some anti-social activities in a proper ground of detention which is
based on sufficient materials.
  he respondent contends that there is no bar in law to pass an order of detention where
the detenue is proceed against in a criminal proceedin.
 No mechanical procees /test to determine the proximity of the detenu’s past prejudicial
activities.
 No live link between the grounds of criminal activity and purpose of detention.
 in Gora Vs.State of west Bengal(1975)-“The order viewed as one pssed in anticipation
of the detenue being released as a result of dropping of the case of against him as no
one was willing to dispose against him.”

Decision and Reasoning :

The learned council for both the parties relied on “Abdul LatifMirzaVs.BD”.-though the court
held that the principal ground lost its cogency and became irrelevant and that other grounds of
detention which were superstructures on to review the law of preventive detention.

So,an illegal order of detention can’t be continued by a subsequent order of detention.”-Under

the special powers Act ,the detaining authority’s satisfaction is to a great extent subjective but
the order of the detaining authority must be based on some materials which will satisfy a
reasonable person that a conclusion could be so drawn on such materials.Thedetenue was
released because of being detained without lawful authority.

Principle:

The court is to hold the balance between the states need to prevent prejudicial activities and
citizen’s right to enjoy his personal liberty. Again in Art35(5)-‘no person accused of offence
shall be compelled to be a witness against himself’ and -in Art 102-“powers of High court
Division to issue certain orders and directions etc.

Case No.10
Shameem vs. Bangladesh47 DLR (AD) (1995) 109; 15 BLD (AD) (1995)

Law cited:
  The Constitution of the People’s Republic of Bangladesh 1972. Article 102
(Habeas Corpus)
 The Special Powers Act, 1974.

Fact:

The appellant’s brother, Md. Shaheen Shorab, a businessman, was returning from Kazipara to his
residence. The police arrested him under the Special Powers Act, 1974 and taken into custody at
Mirppur Police Station. Then Magistrate sent him to the central jail by making and order of
detention of 30 days. Later, the tenure of detention was being increased on the ground that he is a
person upon whom the local police are dissatisfied. Moreover, a criminal case was running
against the detenu on the same alleged offence. The High Court Division Judges found a relation
between the order of detention and grounds of the order of detention. It (HCD) discharged the
government. Then Mr. Shameem moved to the Appellate Division.

Issues:

 Whether the order of detention is appropriate or not when a specific criminal case
is running against the detenu.
 Whether the government has taken proper steps to protect the right to life of the
detenu.

Referred cases:

1. Habiba Mahmud vs. Bangladesh 45 DLR (AD) 89

2. Md. Shahabuddin vs. District Magistrate, 24 Parganas and others (1975) 4 SCC 1114
3. Altaf Ahmad Matoo vs. State and others, 1989 Crl. L. J. 1270

Reasoning:

The detenu may be detained if the government can prove the severity of the offence and any
other reasonable ground. But nobody appeared before the Court. That means they failed to
understand the importance of the right of the detenu and thus the detenu was being deprived of
his right to life and (means living with honour and dignity) and right to make an effective
representation before an advisory board. So, the court issued an order of releasing the detenu
forthwith.

Decision:

The detenu be released forthwith, if not wanted in connection with any other case.

Principle: The authority detaining the person must specify the cause of detention and discharge
the burden of proof in lawful justification of the detention.
 Case No.11
Sajeda Parvin Vs. The State 40 DLR(AD)(1988)178,185
Facts: Appellant’s husband,Syed Mokbul Hossain, was directed to be detained for three months by the
order dated 27 th June,1987 of respondent 2,the assistant secretary,Ministry of Home Affairs.The order
was purported to have been made under section 3(1)a of the Special Power lAct,1974 on the appellant’s
application challenging the legality of the detention .The High Court Division issued a Rule on 6 th
July,1987.Subseqently on 15th August 1987 the order dated 27th June,1987 was revoked on the ground
that the word”Janonirapttar Shartthe Ontorin”( Detention in the interest of public safety) were in
adverently used in that order.On the same day i.e 15th Augus t1987 another order was passed directing the
detention of the detenuefor thirty days with a view to preventing him from indulging in activities
prejudicial to the economic or financial interest of the state.

The Hihg Court Division held that the subsequent order dated 15 August 1987 was an independent order
and not in continuation of the earlier order as in that order there was no reference to the earlier order; that
the fact that tha earlier order was revoked and the fresh order was passed on the same day would not
make any difference; that the Rule issued with regard to the order dated 27th June,1987 became
infructuous after the revocation of the order; and that as no fresh application was filed with regard to the
order detention dated 15th August, 1987 that order could not be interfered with.

Issues:

1. Whether the detenu is being held in custody with lawful authority.

Arguments of the Petitioner:

The only argument of the petitioner is that the only point that calls for determination in a case of this
nature is that whether at the time of hearing of the petition there is a valid order for detention before the
High Court Division so that it may satisfy itself that the detenu is not being held in custody without lawful
authority or in an unlawful manner.

Argument of the Respondent:

The respondent’s only material in support of the impugned detention appears to be confession of the
detenu’s brother who, however, retrected the same on 12th June,1986 alleging that it was extorted by
causing mental and physical torture on him.the case against the detenu appears to be a serious one.The
Respondent contends that the detaining authority has power to issue fresh order after revoking an earlier
order during the pendency of a writ proceeding, and there was no bar in the Special Powers Act,1974 for
issuing an order of detention against abn accused who has been granted bail or is about to come out on
bail if the detaining authority is satisfied that the accused will indulge in prejudicial activities if he is
allowed to remain at large.

Judgement:

It was held that the order of detention was passed for collateral porposess and that the detenu is being held
in custody without lawful authority.

Reasoning:

In this case parties have joined issues on several points, but the main question that calls for determination
in this case is the legality of the detention of the detenu,and that question can be decided on the
respondent’s papers alone.And in terms of Article 102(2)(b) (i) of the Constitution the question is solved
as illegal.

Principle:

A Court should refrain from deposing a matter on a single point when the parties join issues on more than
one question.

Conclusion:

In this case, however, the High Court Division made a departure from a view consistently held so far by
trying to put a very narrow technical construction on the Rule it issued in the matter.

Case NO.12
 Shamima Sultana V Bangladesh 57 DLR (2005)201
Analysis of fact:

The election of the corporation was held on 25.3.2002,electing one mayor,Thirty-one

commissioners from the general seats and ten commissioners from the reserved female
seats(Annexure A).In a meeting of the standing committee it was resolved that the
commissioners elected in the reserved seat would maintain 31 centres out of 518 centres.Another
resolution was taken in a meeting but the petitioners were not allowed to handle the
programme.In the meantime a circular was issued under the signature of respondent no.2 where
it was specified the duties and functions of the commissioners elected in the general seats not the
reserved seats.A meeting of the standing committee was held and the Mayor and the
Commissioners from the general seats were sanctioned funds for implementation of the said
programme but the petitioners were not involved in the said programme.It is further stated that a
meeting of the standing committee on ‘Tax And License’was held where a resolution was taken
empowering the commissioners to issue licences for rickshaws but the said resolution was also
taken discriminatorily to the commissioners elected in the reserved seats.Besides the
commissioners elected from the general seats enjoy the facilities of a ward secretary but such
facilities were not allowed to the commissioners elected in the reserved seats.In the same way the
petitioners were treated discriminatorily in the matter of distribution of slaughtered cattle from
Saudi Arabia in violation of the decision taken in a meeting.Being aggrieved all these
conducts,to the petitioners,the commissioners elected in the reserved seats were constrained to
issue a notice on 30-4-2002 through the learned Advocate demanding justice,in canceling and or
rescinding the circular dated 23-9-2002.

Arguments:

The learned advocate,on behalf of the petitioners argued that the constitution of Bangladesh
proclaimed the equality of men and women in all spheres of national life including in the elected
public offices.He contended the women are not at par with men in this country due to historic
reasons.He submits that the Govt.ithout any jurisdiction issued the impugned circular which is
ultra vires of the constitution as well as ordinance that the said circular is discriminatory and
violated the equality provision of the constitution.He further submitted that in order o ensure
equal participation of women in public offices a positive discrimination is not permitted but
encouraged in the constitution under Art,28(4).the learned Advocate also concluded his
submissions hat pursuant to the spirit contained in Art 28(4) of the constitution,section 4 of the
ordinance was soo amended that the omen section of the society can also participate in running
the affairs of the corporation ut the impugned circular completely demolished such idea of
equality and violated the spirit of Ar.10,11,28(4) and also art.59.

The learned Attorney General submitted that the women population is a class themselves and in
order to vindicate the spirit of Ar.10 of the constitution read with art 28(4) section 4 of the
ordinance was amended providng for election of women in the reserved seats but being so
elected they cannot claim to be equal with the commissioners elected in the general seats and that
reasonable classification is permissible.He pointed out that if the commissioners elected in the
reserved seats are given similar benefits and duties at par with the commissioners electedin the
general seats that shall rather be discriminatoryto those commissioners.The contention of the
learned Attorney General is that since the women commissioners who were elected in the
reserved seats are class by themselves and obviously cannot be equated with the commissioners
elected in the general seats and being so unequal cannot calim equal treatment and equal rights.

Decision:

The circular is declared illegal and without lawful authority.It is further declared that once
elected the commissioners whether in the general seats or in the reserved seats male or female
are equal in all respects and they shall be treated by all concerned.

Reasoning:

The respondent no.1 demonstratively treated the commissioners elected in the reserved seats as
unequal in the impugned circular.The discrimination in the case is so dark and apparent that it
does not require any elucidation.

Principle:

City corporation is independent bodies,those are not Government departments and the
Govternment cannot interfere in their functions.

Conclusion:Men and women should be treated equally in all respects of life.

Case No.13
 Super Oil Refinery Limited Vs.Commissioner of Customs,Chittagong
&Others

2010 BLD (HCD),30

Facts in brief:

The petitioner is a private limited company engaged in the business of importing Crude Pulm Olien
(C.P.O) from abroad for local consumption after refinement of the same.Respondent No.4 Alhaj Oil Mills
Limited is also a limited Company engaged in importing the same Crude Palm Olien.The respondent
No.4 opened a letter of credit for importing of 25 MT Crude Palm Olien under L/C No.0111030100065
dated 04-05-2003 having invoice value US$ 11000 but the said respondent No.4 managed to create a
forged amendment of the said letter of credit dated 14-5-2003 enhancing the quantity of the goods as
3000 MT of C.P.O having value of US$ 1,32000 by forging the sing and seal of the Janata Bank,Laldighi
Branch and after detecting the the said forgery the Janata Bank,Laldighi East Corporate Branch, refused
to accept the shipping document in favour of the respondent no.4 and returned the same to the seller
Walmer Trading Ltd. Bank O.C.B.C. Bank Singapur vide letter contained in memo No.JB/LDE/EFC/03
dated 11-08-2003 and informing the said discrepancy of the shipping documents through swift message.

Argument of the petitioner:

Mr.Hasan Md. Reyad,the learned counsel appearing on behalf of the Petitioner contends that the dispute
regarding the ownership of the goods in question reached it’s finality up to the Appellate Division of the
Supreme Court of Bangladesh Customs Authority has no legal bar to goods in favour of the petitioner
Company.

Argument of the Respondent:

Mr.Syed Quamrul the learned counsel by filing affidavit-in- opposition on behalf of the respondent No.5
Eias Brothers (Pvt) Ltd. Unit tank Terminal submits that the Cargo in question is lying delivered since
July,2003 in the three regarded tanks of the respondent No.5 for which he has been subjected to colossal
losses and unable to continue his regular business and prayed for an order from this Division.

It has been stated that due pendency of the Civil suit the authority is not in a position to the matter in
question in accordance with Law in annexure “H” addressed to the petitioner by the Commissioner of
Customs.

Judgement with reason:

In the judgment, the Rule was made absolute. The impugned withholding of goods is declared to have
been done without lawful authority. The reason is that there is no legal obstruction that could possibly
disallow the customs authority to settle the long pending dispute regarding the release of the goods in
question for the litigation which stood as a bar in so doing does not subsist anymore.

Conclusion:In conclusion,we can say that if in due course Tittle suit No.324 of 2009 has been decided in
any manner under the law, the legal consequence will follow.

Case No.14
Najirul Islam (MD) Vs. Government of Bangladesh

34 BLD(HCD),2014,120

Facts in brief:

There are 105 private Teachers Training Colleges(TTCs) imparting the BED course and the private TTCs
are giving BED training up to 75% of the said teachers each year.The syllabus, teaching methods and
examination systems are being done by the University, and there is a separate academic curriculam for the
TTCs.All on a sudden, 15-5-2008, a circular purportedly issued by the Ministry of Education vide memo
No.Shim Sha 11 2(MPO)/2007/757, dated 15-5-2008,made compulsory for every non BED secondary
School teachers’ to obtain BED training from the Government Teachers Training colleges, and publishing
a discriminatory list of 38 colleges making as red 17,colleges as green, 15 colleges as yellow,31 colleges
as grey and thereby barring hundreds of private TTC around the country to admit BED students.It is
stated that Private Teachers Training Colleges Association made representation tos, the respondent,
requesting to withdraw and/or cancel the impugned order dated 15-5-2008,but respondents did not make
any response on it whatsoever.The petitioner being aggrieved and dissatisfied with the decision of the
respondents filed the instant writ petition and obtained the present Rule.

Argument of the Petitioners:

Mr.Yousuf Hossain humayun,the learned counsel for the petititioners argued that by the impugned order,
the respondents derectimg the National University to cancel affiliation of 38 Private Teachers Training
Colleges are discriminatory, and nauseating affiliation of Article 27 of the Constitution of the People’s
Republic of Bangladesh guaranteed as fundamental rights to the petitioners.He further submits that no
opportunity of being heard was ever given to the petitioners before taking such illegal and malafide
decisions and as much every TTC was entitled to have a chance of a reasonable opportunity of being
heard and to make effect the representation.Further to that he submits that it is enshrined in the
Constitution of the People’s Republic of Bangladesh that to enjoy the protection of the law, and to be
treated in accordance with law,is the inalienable right of every citizen.Every person for the time being
within Bagladesh and in Particular no section detrimental to the life, liberty,body, stipulation,or property
of any person shall be taken except in accordance with law, and as such every authority is law bound to
afford an opportunity of being heard, but in this case it was not done , which in violation of Article31 of
the Constitution as well as the principle of natural justice.He prays for making the Rule absolute.

Argument of the Respondents:

Mr. Biswajit Roy,the learned Deputy Attorney General with Mr. Shawrup Kumar Deb, the learned
Assistant General appeared on behalf of the respondents without filing any affidavit-in-opposition
submits that the respondent have rightly issued the impugned notification and the instant Rule is liable to
be discharged.

Decision:

It was held that the Rule is made absolute in part.Therefore,the Government Circular purportedly issued
by the Ministry of education is hereby declared to have been passed without lawfull authority and to be of
no legal effect and it is hereby discharged.

Reasoning:

It was found that ,there was no prior notice or warning given to the petitioners in this regard.Even the
respondents utterly failed to explain the necessity and /or public interest to change the terms and
conditions of the affiliation letter.the aforesaid expectation can not be termed or being based on sporadic
or casual or random acts of the respondents,or as an unreasonable or illogical or invalid expectation.This
expectation can be said to have arisen in the mind of the petitionersin the normal course.

Case No.15
Muslim Uddin Vs.Bangladesh and Others 64 DLR(2012) 161
Facts in Brief:

The petitioner is a calss III employee,serving as a driver,under the Ministry of Fisheries in the
District Fisheries Office since his joining in the service,after being appointed by memo dated 27-
01-1994(Annexure-A).While he was performing his duties to the satisfaction of all concerns he
was transferredto the District Fisheries Office,Chittagong on 23-9-1999.Then again he was
transferred.But suddenly on 18-8-2009 he received the impugned order and found that he has
been transferred from Dhaka Fisheries Office to Kurigram Fisheries Office and has been directed
to join the said the post without 23-8-2009.Being surprised by the said transfer order dated 18-8-
2009 the Petitioner made representation on 20-8-2009 to the Director General,Fisheries
Directorate,Dhaka for cansellation of the said transfer order but did not received any response till
filing the writ petition.It is further stated that, the petitioner’s wife is cardiac patient who is
advised to take full bed rest without any anexiety and tention.but the petitioner;s further transfer
causes a great harm to his wife.On the other hand, in the job circular by which he was
employed,jobs of 3rd and 4th class employees’ have been shown as not transferable except
certain employees of other Departments as has been enlisted in the list annexed to the said
circular.So, the said pwtitioner filed this writ petition under Article 102 of the Constitution and
obtained this Rule Nisi calling upon the Respondent to show cause as to the impugned order.

Argument of the petitioner:

Mr.AM Mahbubuddin, the learned advocate appearing on behalf of the Petitioner,on the question
of the maintainability of this writ petition filed by the petitioner, submits that since the writ
petition is a class III employee and the calss III and Iv employees are not enlisted in the list
published by the Ministry of Establishment on 13-9-1986, he can not be transferred.He futher
argued that the transfer has been done by violating tha law under Article 102 of the
Constition.Thus the writ petition is very much maintainable.

Argument of the Respondent:

Ms Nusrat Jahan,The learned Assistant Attorney General, appearing on behalf of the

Respondent No.2 submits that the Petitioner Having not challenged vires of any law in this
Rule,according to the decision of the Appellate division in the case of Mujibur Rahman Vs.
Government of Bangladesh and Others.She also argued that Rule 24(1) of the Bangladesh
Service Rules categorically provides that a Government servant may be transferred from one
place to another and annexure-E merely being circulars are merely Government policy,so there is
no violation of any law in transferring the petitioner.
Decision:

It was held that the writ petition is not maintainable and as such there is nothing to interfere with
the impugned order of transfer of the petitioner.Hence the Rule is discharged and there will be no
order as to cost.

Reasoning:

The decision was based on some reasons such as the petitioner did not challenge vires of any law
rather simply challenged the order of his transfer alleging violation of the circular claimed to
have force of law within the purview of violation of any fundamental right and even if there is
any violation of fundamental right in passing the transfer order,writ petition under Article 102 is
not maintainable as the administrative tribunal has ample power to look into the matter even if
the said violation is violation of fundamental right of the petitioner.

Case No. 16
Mujibur Rahman v Bangladesh 44DLR(AD)(1992)113

Analysis of fact:

The appellant Md.Mujibur Rahman was compulsorily retired from his service as the collector of
customs.The Administrative Tribunal set aside the order of retirement by its order.the
Administrative Appellate Tribunal by is judgement and order set aside the Trbunal’s order on he
ground that the order passed by the chief Martial Law Administrator could not be challenged
before any court.the HCD rejected the appellant;s petition as not maintainable under clause (5) of
art.102 of the constitution.

Arguments:

Main contention of the appellant is that Appellate tribunal cannot be regarded as a tribunal under
117 having constituted under the plenary legislative poer of parliament as a court subordinate
court to supreme court.he has alleged that the provision of sections 3 and 5 of the act as to the
composition of the tribunal and Appellate tribunal respectively are ultra vires to the
constitution.Appellant contended that when he challenged the impugned order of compulsory
retirement on the ground of violation of fundamental right guaranteed under art.27 & 29 of the
constitution the HCD ought to have exercised its juricdiction under clause (1) of 102.
Decision:

The appeal is dismissed without any order as to cost.The petitioner are directed to take necessary
steps for completing their respective petition for hearing within one week.

Reasoning:

An aggrieved person may out of desperation or jus for taking a sportive chance in the summary
writ petition,allege contravention of some fundamental right which may turn out to be frivolous
or vexations or even not remotely attracted in his case.

Principle:

The appellate tribunal was validly established by the parliament in exercise of the special grant
of legislative power under the proviso to art 117(2) and section 5 of the Act is not ultra vires the
constitution.

Case No.17
Mofizur Rahman v Govt.of Bangladesh 34 DLR(AD)(1982)321

Analysis of fact:

Appellant,Mofizur Rahman Khan was acting as Deputy Director,Civil aviation,Government of

Bangladesh,by an order the govt.in the Ministry of civil aviation retired him from services under
9(2) of the public servants retirement Act,1974 and he was allowed pension and other benefits
except preparatory to retirement and he challenged the order of retirement by filling a writ
petition namely civil appeal no.73.The HCD upheld the order of retirement but in respect of
leave preparatory to retirement was refused under section 7 of the Act and it was held to be ultra
vires of the constitution.Then the appellant,gov servant challenged the order of HCD regarding
the retirement in a civil appeal no.74.

Arguments:

According to the appellant mofizur Rahman it aws contended that the section 9(2) was violative
of art.27 & 29 of the constitution and the order retiring him from service was malafide and was
not made in the public interest.It is contended that where the contravention of a fundamental
right is concerned the legislature cannot pass a law retrospectively validating an action taken
under a law which was void because it contravened a fundamental right.

The learned Attorney General has contended that the legislature has got power to pass any law
retrospectively validating an action which declared invalid by a court.He has also contended that
an action taken by govt.or public authorities shall be presumed to have been taken bonafide
unless the contrary is established by the person complaining of it.

Decision:

As to the govt’s appeal no 74 of 198-against the HCD’s order declaring section 7 of the Act 1974
ultra vires the constitution ,this section has in the meantime been amended restoring the previous
provisions for leave preparatory to retirement.

Reasoning:

Because that was violative section 27 and 28 of the constitution.

Principle:

To make such retrospective validation the legislature must have some competence o make law on
the subject within the constitutional limitation.

Case No.18
Md.M.Rahman v Water Board 981 BCR 375
Analysis of fact:

The petitioner in writ petition No.909 of 1979 was appointed directl as an Assistant Engineer by
the angladesh Water Development Board in its Drdger Division on 18.6.75.At the time of his
appointment only graduate Engineers and the Diploma Holder Engineer having passed the
AMIE Examination could be promoted to the post of Executive Engineer.By a order daed 6.6.7
the Deputy secretary informed that a common seniority list for the promote Diploma holders and
direct recruits should b maintained from 1st July,1977.The petitioner’s case is that due to
publication of this combined seniority list his chances for promotion have been adversely. His
further grievance is that 2 vacancies in the posts of Executive Engineers were filled up by
promoting respondents nos.4 and 5 who are not even Diploma Holder Engineers but they were
promoted as they were included in the combined seniority list.

Arguments:

The petitioner has challenged a combined seniority list dated 3.9.79.He further has impugned he
order dated 31.7.78.The learned advocate for the petitioner has pointed out that the degree
holders and diploma holders were recruited from dissimilar sources.it was contended that the
post of Executive Engineer could not be filled up by a Diploma holder Engineer without
violating the memorandum dated 16.4.69.Another learn advocate for the petitioner in writ
petition No.909 of 1979 has pointed out that the appointments of respondent no.4 & 5 were not
done in accordance with law.

On behalf of respondent it has been contended that there has been no violation of rules & the
combined seniority list was prepared in accordance with rule 23 hich governs the case o he
petitioner.

Decision:

The petitioner have got no exclusive legal or vested rightto promotion to the posts of Executive
Engineer.The impugned combined seniority list have not violated any law or fundamental right
no.27 which has been invoked at the time of petition.

Reasoning:

Nothing is found in the rules which forbid the making of a common seniority list of all Assistant
Engineer,further rule 4 provides that the authority may amend or add to any of the provisions of
the rules in such manner as it may deem necessary.

Case No.19
Mahbub Ahmed Chowdhury Vs.The Chief election Commissioner
& Others

34 BLD (AD) 2014

Facts in Brief:
The present petitioner preferred writ petition No.8780 of 2008 before the High Court Division stating
inter-alia, that he as an independent candidate, sought to contest the election of the Parliament from
constituency No.185,Dhaka which was scheduled to be held due to declaration of Emergency by the
honourable President of the Republic Subsequently,the election schedule was declared by the Chief
Election Commissioner to be held on 18-12-2008 and according to the election schedule nomination
paper was to be submitted on 20-11-2008.In the meantime, in exercise of power as provided under Article
93(1) of the Constitution of the Peoples Republic of Bangladesh,the President promulgated the
Representation of the People(Amendment) Ordinence,2008(Ordinance No.42 of 2008) by amending
Representation of the People Order,1972.The writ petitioner challenged the legality of the amendment by
inserting clause (Ja) after clause (3) of Article 12 of the RPO,1972 in writ petition No.8780 of 2008.And a
Rule Nisi was issued.But the Rule could not be heard inspite of the best effort made by the
petitioner.Subsequently, the writ petitioner filed an application before the High Court Division on 30-06-
2009 with a prayer to issue a Rule afresh.Thereafter a fresh Rule was issued by the High Court Division.A
Division Bench of the High Court Division by the impugned judgement and order dated 16-08-2010
discharged the Rule.Being aggrieved by the aforesaid judgement and Order the Petitioner preferred the
instant Civil Petition for Leave to appeal before this Court.

Issue:

1.Whether the amendment of Article 12 of the RPO,1972 by insertion of clause (3a) is violative of the
provisions of Articles 12 and 26 of the said Order of 1972 and also violative of Articles 27,31,66and 124
of the Constitution of the Peoples Republic of Bangladesh.

Argument of the Petitioner:

Mr. Mohammad Golam Kibria,The learned Advocate appearing for the petitioner submits that the High
Court division erred in in law in passing the impugned judgement and order discharging the Rule having
referred to the preamble and Article 7 of the Constitution but passed the impugned judgement and order
with inconsistent and contradictory decision by holding in effect the supremacy of the law of Parliament
over the Constitution and as such the impugned judgement and order is liable to be set aside.He then
submits that the High Court division in paasing the impugned judgement and order imposed an additional
qualification in the case of a voter who wishes to be an independent candidate in the election to the
Parliament must also satisfy an additional qualification as laid down in clause (3a) of Article 12 of the
President’s Order No. 155 of 1972 and also holding that Article 12 (3a) of the aforesaid Order can not be
derogative to Article 66 and 124 of the Constitution of the People’s Republic of Bangladesh and thereby
the High Court Division has taken a partisan view of the whole matter based on a prejudicial and wrong
presumption about an independent candidate and thus committed an error of law in discharging the Rule.

Judgement with reason:

The Appellate Division do not find any illegality in the provisions of Clause (3a) of Article 12 of the
Representation of People;s Order ,1972 providing that nomination of an independent candidate shall be
submitted along with a list of signatures of one percent electors of the concerned constituency.They don’t
find any illegality in the impugned judgement and Order passed by the High Court Division.

Conclusion:

The petitioner can not satisfy the Appellate Division with strong arguments in their favoure

Case No. 20
Bangladesh v Prof. Golam Azam & others
46 DLR(AD)(1994)192

Analysis of fact:

The respondent had been staying abroad since before liberation war of Bangladesh as a citizen
of Pakistan;that for his anti-liberation role and active collaboration ith the Pakistan arm in raising
irregular forces like the Rajakers,Al-Badars and Al Shams and placing his party,the Jamat-e-
Islam,at the disposal of the Pakistani arm and because of his conduct during and after he
liberation war and his voluntary residing in Pakistan as a citizen off Pakistan he could not be
deemed to be a citizen of Bangladesh.

Arguments:

In his affidavit the respondent reiterated his assertions made in his writ petition and gave a
denial to all the allegations made in opposition’s affidavit.

The appellant contends that as the notification did neither deprive nor take away the vested right
of the respondent and only notified his inherent lack of eligibility to be deemed to be a citizen of
Bangladesh there had been no procedural defect in issuance of the notification for not serving a
prior show cause notice on the respondent then no residing in Bangladesh.

The learned Attorney General contends that from March 26,1971 the respondent clung to his
citizenship of Pakistan till April 18,1973 when he notification was published in the Official
gazette and tha he did not satisfy the prerequisites of Art 2(i) and that there was reasonabld doubt
as to whether he continued to be a permanent resident in Bangladesh.

The appellant had relied on the respondents Pakistani passport as he most important evidence of
his Pakistani citizenship.

It is condended that the respondent ought to have discarded the Pakistani passport and sought
political asylum in England and asked for Nansen passport as a stateless person.

The learned counsel for the respondent has submitted that many aperson known for their alleged
collaboration with Pakistan,have been rehabiliaed within less than seven ears afer he war of
liberation.

Decision:

The appeal is dismissed.

Reasoning:

In considering a matter before it the court will only consider whether the aggrieved person has
got the legal entitlemnt to the relief claimed.

Principle:

While acting under the law a court’s anxiety in decision making must be limited to the questions
of fact and law and the interest of justice in the circumstances of a particular case.
 Case No. 21
Aruna Sen V Govt. Of Bangladesh

27 DLR 1975

Facts in Brief:

In this petition the validity of the arrest and detention of one Chanchal Sen,the son of the
petitioner has been challenged. In the morning of the 30 March the Chanchal Sen was attacked
by a group of young men who tried to kidnap him but due to intervening of some people the said
group did not succeed in their attempt and shortly thereafter some members of the Rakkhi
Bahini appeared on the scene and took away him. The petitioner failed o trace the whereabout
of her son but after some days a friend of her said that her son was in the custody and there was
nothing to worry about it. Thereafter the petitioner having learnt of her son in the custody and
found him in miserable condition. He complained of physical torture also. And finally the
petition under article 102 of the constitution was moved to this court.

Arguments:

an affidavit in opposition has been shown by stating that the detenu has been detained under
section 3(1) (a) of the special powers act,1974 on the basis of the order by the govt. It has been
further asserted that the detenu is an active worker of a secret subversive organization and was
carrying on the activities of the said organization remaining underground;that he and the said
organization are involved in committing murders ,armed and the Rakkhi Bahini recovered a
huge quantity of arms and ammunitions from his house and so many things.It has been further
alleged that the detenu is also wanted as an accused in Bhederganj P.S case no.8.

An affidavit in reply has been filed stating that the order of the detention under the SPA is an
afterthought and abuse of the executive authority and that the allegation as to the recovery of
arms and ammunition as well as certain prejudicial papers from the house of detenu and also the
allegation relating to the commission of murders ,armed robberies etc are false. The statements
as to two Bhederganj case also have been denied.

No copy of the grounds of detention was produced in court nor it was averted in the affidavit on
behalf of the respondents that such grounds were served upon the detenu within the time as
directed in the constitution.

Decision:

It was held that the order of detention purported to be made under section 3(1) of Special
Powerrs Act,1974 in the case is illegal and that the detenu is being held without lawful authority
and in an unlawful manner and the order of detention is quashed.
Reasoning:

The said grounds no 1 and 2 are nothing more than a bare statement that the detenu participated
in illegal activities of a secret organization and has carried on the prejudicial activities of the said
organization by remaining underground since liberation.Ground 3 cannot be said to be wholly
vague or indefinite but no details of the prejudicial documents have not been furnished in the
ground.Ground no 4 is extremely vague and has been framed in an indefinite terms without any
particulars as regard to several dacoties and murder.The 3 out of 4 grounds firnished to the
detenu being vauge and indefite the impugned detention is illegal.

Principle:

The onus is completely on the authority ho has deprived a citizen of his personal liberty by
detaining him in custody for satisfying the court that the detenu is being held not only with the
lawful authority but also in lawful manner.

Conclusion:

The case involves 3 fold questions……….

1.whether the grounds of detention as communicated to the detenu are relevant to the objects as
provided in the in the SPA 1974.

2.whether the said grounds are so vague and indefinite in their terms that it can be said that the
detenu has been deprived of his constitutional right of making representation.

3.whether there is any material basis for all the said ground.

Case No. 22
ZainalAbedinVs Government of Bangladesh 34 DssLR (1982) , 77

Law cited:
  Constitution Of Bangladesh, Article : 27, 29, 133, 136, 4th Schedule, Para 10(2)(b)

Facts:

In this writ petition the petitioners have challenged a memo issued on 14.02.1980 by the
Director General of Bangladesh Post Office causing seniority to one Arun Kumar Sarker being
the respondent no 04 by virtue of a memorandum dated 18.03.1978 issued by the Secretary,
Establishment Division of the cabinet Secretariat of the Govt. of Bangladesh providing a
comprehensive formula for granting benefits to the employees who participated in the war of
liberation.

Arun Kumar Sarker who was junior to the petitioners, was given two years seniority. The
petitioners challenged the respondent 4`s plea of participating in the war of liberation.

After issuance of this rule ,Respondent no. 1, the Secretary, Ministry of posts,Telegraphs and
Telephone of the Govt. of Bangladesh filed an affidavit seeking to rely on the “ Government
Servants(seniority of Freedom Fighters) Rules, 1979’’ made by the President in exercise of
power conferred under the proviso Art. 133 of the Constitution. Consequently the petitioners
filed an application for amending the prayer and they altimately challenged the constitutional
validity of the “ Govt. Servants ( Seniority of Freedom Fighters ) Rules, 1979’’

As the examination of Respondent no 4`s participation in the liberation war can not be
adjudicated in this writ for its being factual matter, the thing left for the court is to examine the
constitutional validity of the above said Rule of 1979.

Issues:

 The petitioners’ contention is that the “ Govt. Servants(Seniority of Freedom Fighters)

Rules, 1979’’ violated the equality clauses of 27 and 29 of the Constitution. It has also
violated Art. 133 of the Constitution.
 Art. 27 says about equality before law and Art 29 says about equality of opportunity in
public employment. Art. 29(1) and 29(2) enumerate that there will be no discrimination
in the public employment on the ground of religion,sex,race,place of birth.But Art.
29(3)(a)(b) enumerate certain exception where the state can make special provision for
women, children, backward sections of the citizens and for some other cases. But
nowhere in those cxception there is any indication that on the basis of participation in the
liberation or as such any special provisioncan be made
 Justice Abdul WadudChowdhury fully concurred with the thejudgement given by S.M.
Hussain and gave no separate judgement.
 Justice Md. HabiburRahman differed with the judgement given by S.M. Hussain and
made some contentions.
  Conferment of certain benefits on Govt. Servants who participated in the liberation war
or abstained or defeated in favour of the Govt. of Bangladesh or suffered imprisonment
or dismissal or detention in the hands of the occupation Army, Govt. of Bangladesh
cannot be objected on the ground of alleged violation of Art. 27 of the Constitution by the
petitioner who were not similarly circumstanced with the freedom fighters.
 It is not correct to say that the Rules classified all Govt. Servants into freedom fighters
and non-freedom fighters. The impugned Rules affected only those persons who were in
the employment of Pakistan on 25th March 1971 whose services were continued with a
clear constitutional provision that their conditionsof service could be altered. The inter
seniority of all other Govt. employees have been kept intact.

Order of the Court :

The majority of the judges made this rule absolute. The prayer for leave to appeal under Art.103
of the Constitution is allowed as it involves the interpretation of Articles 27, 29, 133, 136 and
paragraph 10 of 4th Schedule of the Constituition.

Principles :

1.Any law regulatory in nature involves inherent limitation and no provision of that law can
transgress the frontiers of regulatory nature which such law is supposed to be.

2. Law must be in conformity with the fundamental rights guaranteed in the Constitution. Any
law or rule made under Art.133 of the Constitution must be subject to the fundamental rights
guaranteed in the Constitution.

3. If the Govt. was at all desirous to make any law for granting two years anti-dated national
seniority by legal fiction to such employees of the Govt. of Bangladesh who were in the service
of Govt. of Pakistan but participated in the war of liberation of Bangladesh, such law if any and
at all could only be made under the general legislative competence by way of Parliamentary Act
or Presidential Ordinance under Art.136 and clause (b) of sub-paragraph (2) of paragraph 10 of
the 4th Schedule of the Constitution.

Conclusion:

The Govt. may make any special provision for particular section of citizens and can give any
kind of benefit to anybody for his distinct quality or ability whatever though that may apparently
seem discriminatory but not so at all. Even in this case it should be kept in mind that the benefit
or advantage of one does not create disadvantage to others.
 Case No. 23
Saiful Islam Dilder vs. Bangladesh

50 DLR (1998) (HCD) 318

Rule of Law:

 Article 25 of Constitution of Bangladesh, 1972

 Section 4 of Extradition Act, 1974
 Section 3(i) and 2(f)(ii) Special Powers Act, 1974
Fact:

The petitioner is concerned with the arrest of AnupChetia, the Secretary-General of the United
Liberation Front of Assam, briefly called ULFA , by the Bangladesh Government on 1997 and with issue
of his extradition to India as the Government of Bangladesh has decided to hand over him to India. He
states that as AnupChetia was charged with treason by the Indian Government he came to Bangladesh to
save his life, he is not a criminal but a person who has been fighting for right of self-determination for the
Assamese people. He also states that Chetia has not been allowed any opportunity to seek political asylum
and Bangladesh is under international obligation to grant him refugee status.

The petitioner Saiful Islam Dilder, the General Secretary of Bangladesh human Rights
Commission, seeks from the HCD issuance of a Rule on the Government of the People’s
Republic of Bangladesh and other Government functionaries to show cause as to why handing
over of AnupChetia alias GolapBarua to Indian Government should not be stayed.

Issues:

(i) Whether his extradition will violate Article 31 and 32?

 (ii) Whether an extradition treaty is necessary under Article 145A?
(iii) Whether Bangladesh will violate International norm?

Argument :

Advocate on behalf of petitioner argued that right to self-determination is a principle of

International Law which is binding on the member states of the United Nation to help struggling
for freedom and liberation. Without any extradition treaty extradition of Chetia would be
violative of Article 145A of the Constitution of the People’s Republic of Bangladesh.
Extradition of Chetia would also offending Articles 31 and 32 of our Constitution. In the case of
Namibia and Western Sahara right to self-determination received judicial recognition and
Bangladesh is under legal obligation not to extradite Anup Chetia. If AnupChetia is extradited to
Bangladesh will be held responsible under Article III(b) and III(c) of the convention on The
Prevention and Punishment of the Crime of Genocide (1948).

Counter argument contrary to petitioner were that Anup Chetia cannot be an aggrieved person as
there was no allegation that there was any violation of legal right of a person or a group under
Article 102 of the Constitution. His extradition is violation of article 25 of Constitution is a
misconception rather Government can extradite Anup Chetia by dint of Article 25 as because this
petition of ‘right to Self-determination’ does not fall within the three expressions “imperialism,
colonialism or racialism” given in Article 25(1)(c) Extradition Act,1974 of our country does not
exempts extradition of fugitive charged with political offence from the treaty.

Reasoning:

Section 4(1) of Extradition Act,1974 permits extradition of a person without a treaty if

necessary. The Government has sufficient legal authority under Special Powers Act,1974 to
extradite Anup Chetia to India in response to the right of India to demand extradition of Anup
Chetia. The extradition is also possible under the principle of ‘respect for national sovereignty
and equality, non-interference in the internal affairs of other countries” to base Government’s
international relations under Article 25 of Constitution of People’s Republic of Bangladesh.

Decision:

Writ petition was rejected in limine without any order to costs.

 Case No 24
Nurunnahar Begum vs Bangladesh

49 DLR (1997) 432

Rule of Law:

 Article 42 and 102 of Constitution of Bangladesh, 1972

Fact:

Petitioner’s property was enlisted as abandoned property. The rule was issued by calling upon
the respondents to show cause as to why inclusion of petitioner’s house at serial no. 42 in the
‘kha’ list of abandoned buildings published in the Bangladesh gazette,1986 should not be
declared to have been made without lawful authority and of no legal effect.

Issues:

i) Whether the enlisting of property as abandoned property made according to law?

ii) Whether Article 42 violates?

Argument and Counter Argument:

There was not any Advocate on behalf of respondent. Advocate on behalf of petitioner proved
that

 the property could not be treated as abandoned property within the meaning of
President’s Order 16 of 1972.
 Right to hold property by a citizen in his fundamental right guaranteed under article 42
of the Constitution and the property of petitioner enlisted as abandoned property without
following law violates the aforesaid fundamental right of the petitioner.
 Petitioner’s application under Article 102 of the Constitution is maintainable.

Reasoning:
Enlisting of petitioners house is wholly without lawful authority and of no legal effect.

Decision:

Respondent is directed to exclude the said house of the petitioner.The Rule is made without any
order as to costs.

Some Lookout:

If a person’s property does not answer the description of abandoned property violates the right of
property and he can enforce his right under Article 102(1) of Constitution.

Case No.25
Monowara Begum vs. Secy. M/O Home

41 DLR (1989) 35

Rule of Law:

 Article 33 and 34 of Constitution of Bangladesh, 1972

Fact:

Detenu was detained for detention of thirty days under Section 3(2) of Special Powers Act by Annexure
A. By Annexure F the detention extended to more than six months under Section 3(1)(a) of the Special
Powers Act. This Rule was issued calling upon the Secretary, Ministry of Home Affairs, Government of
Bangladesh to show cause why the detenuGafur Mohammad Ibrahim should not be directed to be
released from custody and set at liberty on the ground that he is being detained illegally.

Issues:

i) Whether a person can be detained without advisory board’s approval?

ii) Whether such detention will be valid?

Argument and Counter Argument:

Advocate on behalf of the detenu contained that the detenu has been deprived of his legal right to
present his case for consideration of the Advisory Board and within six months of his first
detention. Article 33(a) of the Constitution of Bangladesh been contravened as he was detained
more than six months without approval of his detention by the Advisory Board.

Reasoning:

Detention of the detenu is illegal without any lawful authority and do not come within the scope
of the Special Powers Act and is in contravention under Article 33(4) of the Constitution of the
People’s Republic of Bangladesh

Decision:

The Rule is made absolute and the order of Annexure F is set aside.

Principle:

If no affirmative op[inion for extension of detention is given by the advisory board,before the
expiry of six months, the detenu has to be released before the expiry of six months under Article
33(4).

Case
No.26
Md. Asaduzzaman v. Bangladesh
42 DLR ( AD) 1990

Rule of Law:

 Constitution of Bangladesh 1972

Article 8,25,38 and 102 (1)
 Presidents Order No. 26 of 1973
Article 8,9,23 and 24

Fact :

The appellant has been a member of Bangladesh Red Crescent Society since its inception in
1973 and its life member since 1976 . He was the elected Vice- Chairman of the Magura District
Unit and after the election held on 7th December 1988, he including all other office bearers of the
District Unit had been functioning normally. At one stage during their tenure in office,
Respondent no.3 by the memorandum dated 2.3.1989 directed the Chairman, the Vice-
Chairman, the Secretary and other members of the District Unit to hand over charges to the
Chairman of the Magura Zila Parishad and other nominated government functionaries.

Issues:

The appellant’s grievance is that by the impugned Act and action pursuant there under the basic
character of an independent , neutral , impartial and voluntary non - governmental
humanitarian body as envisaged by the statute of the International Red Cross and Red Crescent
Movement recognized by Article 4 of P.O. No 26 of 1973 has been destroyed and the
appellant’s right to form an association and to be member of an association has also been
impaired . Therefore he is entitled to a declaration that the amendments effected by sections 2
and 9 of the Act no 14 of 1989 are without lawful authority and void being inconsistent with
Article 38 of the Constitution .

The High Court Division after the perusal of the above submissions from the both sides upheld
the constitutionality of the impugned Act , but granted a certificate to the Appellate Division as
the matter involved a substantial question of law as to the interpretation of the Constitution
,particularly Article 38 of the Constitution.

Argument and Counter Argument:

Argument By the Appellant

 The learned counsel for the appellant has contended that the impugned act and actions
taken over by the notification has violated the autonomy of the elected body of the
District Unit and has impaired his fundamental right to form an association. It is
further contended that by the dissolution of all Executive Committees and the General
Body and by the taking over of the management of all the committees from the elected
representatives of the members of the Society the respondent has violated the
petitioner’s fundamental right to freedom of association and deprived him also of his
right to have the society administered and managed by the Executive and Managing
Body elected by the General Body.

 At this stage the learned counsel for the appellant has referred to some foreign
decisions where the right to form an association was reaffirmed and the impugned Act
and actions take over by the authority were declared void, but due to irrelevancy of the
facts the Court rejected the contention.
 The appellants further contention is that learned judges of the has erred in law in relying
on Bidhu Bhuson Bagchi and another v. the State of West Bengal AIR 1952 Calcutta
which has held that a District Board constituted under the Bengal Local Self Government
Act, 1885 was not an association within the meaning of Article-19 (1)( c) of the Indian
Constitution which guaranteed the right to freedom of association in as much as no valid
analogy can be drawn between a District Board and the Society. Because the society is
an independent, impartial, voluntary, autonomous association of members.
  Finally the appellant has challenged the impugned Act on the ground of mala fides and
also on its merits. It is urged that there was no compelling reason for passing the
legislation and the impugned Act has violated his right by imposing restrictions on his
activities which have no nexus with the interest of morality and public order because it is
not clear what evil was sought to be prevented or remedied by the Act .
Counter Argument By
the Respondent
 Respondent No. 1 the Secretary Ministry of Law and Justice and Respondent No.3 the
Secretary General of the Society contested the petition on the ground that by the
impugned amendment the appellant’s right to form an association and his right to be a
member of the Society has not be taken away and that the society having been formed
and constituted under a statute and not being brought into existence by the appellant or
any other citizen of the country the right under Article-38 of the Constitution is not
available here and the appellant’s right to be a member of the Society and the law
relating to the administration of the Society is competent to be regulated or restricted or
amended by any Act of Parliament passed validly without any reference to Article-38
of the Constitution.
 They have further made a new contention by challenging the appellant’s locus standi It
is urged that any grievance as to the change of the administrative set up must have been
made by the society itself and not by the appellant in his individual capacity.

Decision:

For the construction of the impugned legislation or examination of the impugned notification the
Court needs not seek any guidance from Article 8(2) or from Article 25 of the Constitution,
though it has fervently been urged. In a petition for enforcement of a fundamental right the
article that guarantees such right in the Constitution is ordinarily a sufficient criterion for
examining a grievance of an aggrieved person. As the appellant has not urged any violation of
international law or convention and the case does not involved any such issue ,it is not at all
necessary to refer to Article 8 or Article 25 of the Constitution.

Before parting with the judgment the Court made it clear that the Society is under an obligation
under clause 6 of Article 7 to grant membership of the Society to persons of any grade, provided
the persons seeking membership comply with the terms and conditions of the Society.

It is ordered that with reference to section 9(ga) of the Bangladesh Red Crescent Society
(Amendment) Act,1989 the Executive Committees and the General Body may now be
reconstituted by 30th April,1990 and 31st May1990 respectively and that for determining the
term of the newly reconstituted Executive Committees time will be counted from 1st
January,1990.
In the above context form for applications for enrolment and renewal for membership may be
made available to all those who wants to be a member or renew their existing membership, and
all such applications be disposed of in accordance with P.O.26 of 1973 and rules framed
thereunder.

In the result, the appeal is dismissed without any cost.

Principles Established Here:

1. The right to form an association under Article 38 is fundamental for civic life so that
citizens may prosper in life.

2. The word ‘form’ in Article 38 does not limit the exercise of the right to the formation of
association rather it must imply the right to continue and carry on the activities as well.

3. The right under Article 38 implies that several individuals having a community of interest
can join together to form a voluntary association for furtherance of common lawful object. But
this Article can not invoked for support, sustenance and fulfillment of every object of an
association.

4. Under Article 102(1)of the Constitution the High Court Division has been made the guardian
for enforcement of fundamental right and any question of judicial review with regard to the vires

of the law passed by the legislature flows from the Court’s Constitutional duty to enforce a
fundamental right .

5. Motives of the majority party in the legislature in passing of an enactment or its merit are
non issues in a proceeding under Article 102(1) of the Constitution when the Constitutionality
of an enactment is prima facie unassailable.

6. The legislature can take away vested right by an express enactment subject to the
provisions of the Constitution.

7. In an examination of a question of violation of Fundamental Right the Court may not

insist on the technicalities of onus .

8. The words ‘person aggrieved ‘ are of wide import and should not be subjected to
restrictive interpretation.
 Case No.27
M SaleemUllahvs Abdul KuddusChowdhury

46 DLR (1994) 691

Rule of Law:

 Article 8(2) of Constitution of People’s Republic of Bangladesh

 Article 94 of Constitution of People’s Republic of Bangladesh
 Article 147 and 150 ofConstitution of People’s Republic of Bangladesh
 Article 142 of Constitution of People’s Republic of Bangladesh

Fact:

The Respondent Justice Mohammad Abdul QuddusChowdhury was appointed as both Additional Judge
and Secretary of Law and Parliament Affairs Division in the year 1983under proclamation of Martial Law
of 24th March, 1982. The petitioner challenged the holding of the office of the Secretary, Ministry of Law
and Justice of the Government of the People’s Republic of Bangladesh by Justice Mohammad Abdul
QuddusChowdhury. A judge of the Supreme Court of Bangladesh, High Court Division under article
102(2)(b)(ii)of the Constitution.

Issues:

(i) Whether a Judge can hold both the office of Justice and Secretary under Article 22
read with Article 8(2) of Constitution?
(ii) Whether Article 22,94,99,147 has been violated?
(iii) Whether the enactment of the Constitution(Seventh Amendment Act)1986 including
embodiment of para 19 in the fourth schedule can be attacked by Article 142 and 150
of Constitution?
(iv) Whether after repeal of the Proclamation of 1982 by the proclamation of withdrawal
of Martial Law 1986 can continue to remain effective in face of clause 3 of Article
147 or struck down as unconstitutional/

Argument and Counter Argument:

Advocate on behalf of petitioner argued that The petitioner argued that holding two offices at
one time violates Article 22,94,99 and 147.Though Article 22 ensures separation of Judiciary
from the Executive organs of the State it cannot be judicially enforceable under Article
8(2).Clause 3 of Article 94 simply provides which of the Judges of the Supreme Court shall sit in
the Appellate Division and who will sit in the High Court Division but it does not spoke of any
baron the part of the Judges to perform any other function.Article 99 applies when a Judge is
retired or removed from his offices. So this Article will not apply in this case as the respondent is
a sitting Judge of the High Court Division of the Supreme Court.Secretary of the Government
does not fall within clause 3 of Article 147.Article 150 has given Constitutional effect to the
provision of fourth schedule.By Constitution (seventh amendment act) 1986 para 19 has ratified
and violated the Proclamation of 24th March, 1982.The learned Advocate attacked the
Constitution (seventh amendment act)1986 on two ground :

Ground 1) procedures for amending the Constitution as laid down in Article 142 were not
complied with when the Constitution (Seventh Amendment Act), 1986 was passed.
Ground 2) The Parliament had no power to amend the Fourth Schedule without amending
Article 150 of the Constitution.

Reasoning:

No material placed before the Court on Ground 1. Fourth Schedule being provision of the
Constitution itself be amended as any other Article and Article 142(1) has given the power to
amend any provision of the Constitution.

Decision:Petition was summarily rejected.

Case NO.28
Khodeja Begum vsMdSadekSarkar

50 DLR (1998) 181

Rule of Law:

 Article 26(1), 27, 31 and 32 of Constitution of Bangladesh, 1972

 Evidence Act, 1872
 MFLO, 1961
Fact:

The respondent filed a suit against the petitioner for restitution of conjugal rights and for restraining her
from marrying any other person. He also alleged that he had married the defendant-petitioner by
registered kabinnama and the marriage was consummated. The defendant petitioner denied all
the material allegation of the plaint. The trial court found that plaintiff-opposite party failed to
prove the marriage and kabinnama but this decision was reversed on appeal. The defendant
petitioner brought an application for civil revision. After the dismissal of suit by trial court both
of the parties were married separately to separate persons.

Issues:

 WhetherOmission of the signature of bride certified copy of the kabinnama is not very
material and so it can be accepted?
 Whether the restitution of conjugal right is valid according to Constitution?

Argument and Counter Argument:

In favour of petitioner it was argued that The marriage was not proved under Evidence
Act.TheKabinnama was not signed by the petitioner and was not legal under Evidence Act.The
restitution of conjugal right is a relationship between a man and a woman and the Constitution of
Bangladesh guarantees equality and liberty of each irrespective of man and woman, caste or
creed etc.

The learned advocate on behalf of plaintiff-opposite party argued that Omission of the signature
of bride certified copy of the kabinnama is not very material and so it can be accepted.

Reasoning:

The point of acceptance of kabinnama without signature of one party cannot be accepted
according to Evidence Act. In such circumstances the marriage cannot be proved.
The law of restitution of conjugal right is a violation of social justice as enunciated in the
Preamble of the Constitution and under article 27 for Equal Protection of Law. It is also a
violation of the principle of equal protection of law, the principle of nondiscrimination, the right
to equal protection of law, and the right to life and personal liberty , as guaranteed in Article 27,
28, 31, and 32 of the Constitution.The law of restitution is void by reason of Article 7(2)
and26(1) of the Constitution.

Decision:

Restitution of Conjugal Right was declared void.

Some Lookout:

1.Restitution of Conjugal right is a violation of social justice as enunciated in preamble of the

Constitution
 Case No.29
Hossain Mohammad Ershadvs Bangladesh

21 BLD (AD) (2001) 69

Law cited:

 Article 31, 32 and 36 of Constitution of Bangladesh.

 Article 13 of UDHR and 7(2) of Bangladesh Passport Order.
Fact:

The appellant, a former President of Bangladesh was stopped in the airport for going abroad for
medical treatment and his passport was impounded under the authority of a statutory law. He
challenged the order impounding his passport before the High Court Division and invoked
violation of articles 31,32 and 36 of the constitution along with Article 13 of the UDHR and the
principles of natural justice. The HCD summarily dismissed the petition. Appeal was laid to AD.

Issues:

i) Whether the appellants Constitutional rights has been violated under Article 31, 32,
36?
ii) Whether the provisions of UDHR can be applied in court of Bangladesh?

Argument and Counter Argument:

It was argued for the appellant that

  HCD acted illegally in rejecting the writ petition that the whole object of stopping the
from leaving Bangladesh violated his fundamental right guaranteed under Article 36 of
Constitution.
 Article 7(2) of passport order impounds one’s passport and it violates Article 31 and 36.

Reasoning:

Impounding of passport seizes person’s freedom of movement which is against constitution and
Article 13 of UDHR.

Decision:

Some Lookout:

Principle found from the judgment is that

International Law is applicable in two situations :

i) Where domestic law is unclear and silent in a point.

ii) If the domestic law is in consonance of International obligation.

International obligations is barred in only one situation: where domestic law is clear on a point
but is inconsistent with intentional obligation is a violation of social justice as enunciated in
preamble of the Constitution.

Case N0. 30
 Dalia Parveen Vs Bangladesh Biman 48 DLR (1996)
Fact of the case:
The petitioner Dalia Parveen joined the Bangladesh Biman Corporation on September 3, 1981
and on March 2, 1985 she was absorbed on permanent basis as an air stewardess. At the time of
her appointment the Biman Corporation Employees (service) Regulation was in force. On
February 5, 1995 regulation no 11 of the said regulation was substituted. According to this
substituted regulation, age of the retirement of the flight stewardess was fixed at 35 years
reducing from 57 years while the age of the flight steward (Male) recruitment age was fixed at
45 years. Managing director and personnel manager of Bangladesh Biman Corporation served
notice upon the petitioner requiring her to apply for leave preparatory to retirement (LPR) as she
would attain 35 years of age. In response the petitioner filed a writ petition in high court division
of Supreme Court alleging that the amendment violated the article 28 of the constitution of
Bangladesh.

Issues:
 Whether the amended regulation no 11 violates Article 28 of the constitution.

Argument:
In favour of:
 Amendment of regulation no 11 violates Article 28 of our constitution because it is
discriminatory in nature and it is amended on ground of sex alone.

In against:
Amendment of regulation no 11 does not violate Article 28 of our constitution because:

 The petitioner has been enjoying equal facilities with her male colleagues.
 The service rendered by the stewardess is different in nature from that of steward.
 The efficiency and smartness of the stewardess decreases with her age.

Order:
According to M. Mahmudur Rahman, the amended regulation of Bangladesh Biman Corporation
has been passed without any legal authority and is of no legal effect under Article 102 of our
constitution.
 Case No.31
Professor Nurul Islam and Others vs. Government of People’s Republic of
Bangladesh and Other Respondents [52 DLR 413]

Fact: The respondents caused promotional advertisement activities through their “voyage of discovery”
in order to discover new and potential victims of tobacco products by popularizing the “Gold Leaf”
cigarette.

Decision: In this case the judges direct the respondents and the authorities that advertisement in any form
of cigarette or tobacco related products must not be continued in any manner beyond the period of the
existing contract with the manufacturers or their agents.

Reasoning: It violates the right to life of Article 32. Because through the advertisement the illiterate
people and especially the young generation influenced. And there will have large possibilities to become
addicted and by the by their and also the innocent people’s right to life violated. Because right to life
means right to sound and healthy wealth life.

It violates Article 18. Because the State shall adopt effective measure to prevent consumption of alcoholic
and other intoxicating drinks, drugs etc. except for medical purposes and other purposes prescribed by
law. As the advertisement was not for the medical or purposes prescribed by law, it violates article 18.

It violates Section 3 of the Tobacco Related Goods Marketing (Control) Act 1988. Because the
respondents not followed the rules said by this act. Because they did not contain adequate warning
anyway like displayed prominently the words “smoking is injurious to health”.
 Case No. 32
Dr.Neelima Ibrahim vs. People’s Republic of Bangladesh represented by the
Secretary, Ministry of Women’s Affair’s Bangladesh Secretariat Dacca. [32
DLR 204]

Fact: The petitioner was a member and President of executive committee of Mohila Somity which was
constituted in Pakistan period and after the birth of Bangladesh under the P.O 117 of 1972 an ad-hoc
committee was constituted. The ad-hoc committee made a constitution and under this and election was
held. After the expiry another election date was 28th April 1980. In 19th April Government passed an order
ceasing the committee and new ad-hoc committee was established on the ground that this Somity is
related in politics. The petitioner under Article 102 as called in question the order.

Decision: The decision was that order passed without lawful authority and is of no legal effect so it is
void under Article 26. So the judges direct the Government to cancel and withdraw the said order.

Reasoning:

The order gives unfettered and unrestricted discretion to government to dissolve a managing
committee of an association. The public interest has not been defined. It import is no doubt wider
than the interest of morally or public order for which reasonable may be imposed.
 If any legislation which regulates the affairs of an association, it will amount to breach of
freedom of association.
A law inconsistent with Article 26 may be intelligently administered avoiding a collision-course
with any of fundamental right, but that will not make the law constitutionally enforceable.
Another reason was that Bangladesh Mohila Somity indulging in political activities but the
respondent failed to show any material of that.
It adversely affected the petitioner.
In the facts there is no urgency in the matter that called for instant measure and exclusion of the
committee without pre-hearing.

Principle: government may impose restriction on reasonable ground but it can not when it disturbs the
freedom of association without any justification.

Case No. 33
Sheikh AbdusSabur vs. Returning Officer [41 DLR (AD) 1989]

Fact: Appellant was a candidate for election to the office of chairman of Barashi Union Parishad
which was held on 10th December 1988. He filed his nomination paper but it was rejected by
Returning Officer on the ground that he defaulted in repaying the loan from Janata Bank and
Krishi Bank and such he was disqualified from seeking election to union parishad under Section
7 (2)(g) of Union Parishad Ordinance. He preferred an appeal before the Nirbahi Officer, but it
was dismissed. He filed a writ petition. In writ petition he claimed that the impugned provision
of disqualification of a person seeking election recently brought in by amendment of the Union
Parishad Ordinance is discriminatory in absence of any corresponding disqualification for a
person seeking election to the parliament. He appealed this this provision invoking Article 27
and section 7 (2) (g) should be declared void.

Decision: The High Court Division dismissed the writ petition.

Reasoning: The question arises about the constitutional validity of Section 7 (2) (g) of the Local
Government Ordinance 1983. It has been contended that this provision of the ordinance is
violating of the equality clause of Article 27.

Both the members of the parliament and the members of local government are elected by same
voter, but their functions differ widely.

While a member of the parliament has no specific function as to custody, receipt of any public
money but the union parishad has been inserted under section 44 and 45 of the Union Parishad
Ordinance with powers to the custody and application of union fund (Article 60). So a person
who defaults in repaying his own loans can not be entrusted with wide powers of managements
of public funds.

Case No .34
Saleem Ullah vs. The State
44 DLR (AD) (1992) 309 = 13BLD (1993) (AD) 3

Thematic Focus: Freedom of Press

Relevant Articles of the Constitution: 39

Facts in Brief:
Mr.Rahimullah Chowdhury and another filed a suit on June 10, 1952 in the Sub-ordinate Judge,
3rd court, Dhaka for declaration of title and khas possession of their land Kakrail against two
persons namely Awlad Hossain and FazlulKarim and stated that they acquired the lands of the
plaintiffs and after death substituted by heirs. The defendantsenterd appearance and filed written
statement that they are owner of rightful possession and denied plaintiffs’ right, titile and
interest. The said suit was dragged on for 10 years and held that the plaintiffs have the title of the
properties while the defendants are in illegal occupation and had constructed some buildings
there. The plaintiffs filed another suit for appeal in 1961 in the same court for assessment of
damages and it was also kept pending for 10 years. The defendants preferred appeal from the
decree passed in 1952 but the court dismissed it; the defendants preferred appeal to Supreme
Court of Pakistan but same was also dismissed.

The plaintiffs filed execution case in 3rd court, Dhaka in 1963. The execution matter was also
dragged on different pleas and was still pending and the mesne profit suit was still delayed till
1984 and the suit ultimately came up for final hearing after 25 years. The Learned Sub-ordinate
Judge stated that the plaintiff and other factors, beyond the control of the court were responsible
for delay in the disposal not the court and the judgement has been grossly misrepresented giving
the impression that he is impotent; unable to comprehend the law and a point of law. The
appellant admitted that he was the author of the report asserted the caption was designed written
by sub-editor. But no rules are issued against the editor, printer and publisher of the newspaper.

Decision:

It was held that the journalist having a master degree in journalism and also a practising advocate
did not submitted fair comment on the merit of the case. In our country, where the rate of literacy
is low and words in print are generally revered, the court may consider what impact a written
criticism of court will have in the minds of the public.

Freedom of press being recognised in our constitution, a court is to suffer criticism made against
it. In the case as the journalist was also an advocate he may decide wisdom on the report-
worthiness of the matter but it is little more onerous when he was a journalist. As to article 39 of
the constitution this press freedom is subject to any reasonable restrictions imposed by law in the
interest of the security of the State. The right of freedom as well as freedom of press is a
landmark judgement for the establishment of the right of freedom of expression. Our Parliament
may consider updating the law of contempt of courts in the light of our constitution, recent
changes in media communications and practice in comparable jurisdiction in other countries. It is
a suggestion for parliament to update the law of contempt of court.
 Case No. 35
Abdul Latif Mirza v State

31 DLR

Rule of Law:

article 31,article 32,article 102 of Constitution.

Fact:

The appellant was detained under the preventive detention empowered by ‘The special powers
Act 1974’ due to some grounds shown by the respondents who presented some grounds as for
example ;Overthrowing the then government ,briefing in the meetings in a way that goes against
the fundamental principles of state policy of the constitution of Bangladesh etc.

Reasoning:

1. The grounds those have been shown or communicated by the authority must become adequate,
relevant and appropriate but in this case all the grounds appeared to be otherwise.

2. when the previous detention order is illegal ,the subsequent detention can not ,however be
independent ,be legal the later is purported to the continuance of the previous one

Judgment:

 The detention order was set aside by the appellate division

Case No.36
Ain-O-Salish Kendra (ASK) & others vs. Government of Bangladesh & others
High Court Division (Special Original Jurisdiction)

Mohammad Fazlul Karim and Ali Asgar Khan, JJ

Cited as: 19 BLD(HCD) (1999) 488

Petitioner: Ain-O-Salish Kendra (ASK) & others, Dr. Kamal Hossain, Advocate for the petitioners

Respondent: Government of Bangladesh & others, Mr. Mahmudul Islam (Attorney General) for the
respondent

Decided on: 23rd August, 1999

Result: Application disposed of

Thematic Focus: Housing Rights

Relevant Articles of the Constitution: 27, 31, 32, 112
Issues of the case: Right to life, right to livelihood, right to equality, right to personal liberty, right to be
treated in accordance with law, violation of human rights, violation of rule of law and State’s obligation
under the Constitution

Fact in Brief:
This application under the Article-102 of the Constitution the People’s Republic of Bangladesh, is against
the demolition of basties of Dhaka city and eviction of the inhabitants of, thereof by the respondents
without arranging any alternative accommodation and without any prior notice required by law against
the inhabitants of the basties of Dhaka city including many single woman, minor children, developing and
arising structures( e.g. dwelling huts) on the land within the area of the basties over a considerate period
of time; and many of them work in railway line but the government has reportedly taken steps for the
eviction of the poor basti people by demolishing their houses without any notice.

Many organisations including government and non-government found the eviction of slum dwellers not
only contrary to the law of the land but also in violation of the recommendation issued by the “UN
Conference on Human Settlements” in the year of 1976 and a gross violation of human rights including
adequate housing area.

Decision:
The court held that evictions should not be carried out without following fair and reasonable procedures
in accordance with law, including resettlement of the slum dwellers.

Principle:Right to life protected under Article 32 can not violated.

Case no. 37
Aminul Islam Vs Bangladesh Biman Corporation
 2 BLD 1982 1

Rule of Law:

 Article 27 of Constitution of Bangladesh

Fact:

One Abdul Quddus, an employee of the Biman challenged a circular of the Biman authority
granting antedated seniority to the freedom fighter employees. The circular was struck down by
the appellate division on the ground that no law or regulation empowering the authority to
prepare such a list was to be brought to the notice of the court.

After the judgment of the appellate division the Establishment Division of the government of
Bangladesh issued a direction to all Ministry/Divisions/Corporations and Autonomous bodies to
make rules protecting the interest of the freedom fighters in the light of the Government Servant
(Seniority of Freedom Fighters) Rules, 1979, a seniority list giving the freedom fighter two
years seniority over others was prepared .

The petitionerAminulislam moved the High court division seeking a mandamus to cancel the
seniority list.

Submission of the Council : The ground of attack was that classification done by the 1980
Rules was against the notion of equality and equal protection of lawunder Article 27 and 29.

Decision of the Court: It appears from the memorandum dated 18 march 1978 and Rule 6 of the
rules that certain benefits were extended to those employees of the PIAC who had participated
in the liberation war and suffered imprisonment detention on dismissal in hands of the occupied
Army in 1971. The employee who participated in the liberation war cannot be called a person in
similarity situated with those who are not freedom fighters.

Principles Formulated: Classification of freedom fighter employees and non-freedom fighter

employee is reasonable as they do not belong to the same class and situations which could be
struck down on the principles of equality.

Case No.38
BLAST and another vs. Bangladesh['Shukur Ali' Case(66 DLR AD 2014)]
 67 DLR(AD)(2015)Writ Petition No. 8283 of 2005

Rule of Law :
i) Section 6(2)(4), of Nari-o-SisuNirjatan Daman(BisesBidhan)Ain (xviii of 1995)
ii) Section 34(2)(3) of Nari-o-SisuNirjatan Daman Ain,2000
iii) Section 303 of Penal code
iv) Article 103(2)(a),27,31,32,35(5)104 of Constitution of Bangladesh, 1972

International Instruments Cited:

Universal Declaration of Human Rights; 1948, International Covenant on Civil and Political
Rights (ICCPR), 1996
Facts:
Shukur Ali, a minor boy, was convicted under section 6(2) of the Nari-o-Shishu Nirjatan
(Bishesh Bidhan) Ain, 1995 by the Nari-o-Shishu Nirjatorn Bishesh Adalat, Manikganj (a special
Tribunal) on 12 July, 2001 and was sentenced to death. He (Shukur Ali) was 14 years old at the
time of occurrence and 16 years at the time of Trial. He appealed the decision, which was upheld
by both divisions of the Supreme Court. At this stage, BLAST became involved and challenged
both the constitutional validity of the law terming his (Shukur Ali’s) imprisonment as illegal
detention under an unconstitutional law.
Isuues:
i) Is Section 6(2)(4), of Nari-o-SisuNirjatan Daman(BisesBidhan)Ain (xviii of 1995),
Section 34(2)(30 of Nari-o-SisuNirjatan Daman Ain,2000, Section 303 of Penal code
are ultra vires the Constitution?
Arguments:
The petitioners argued that
 Section 6(2) of the Nari-O-Shishu Nirjatan (Bidesh Bidhan) Ain, 1995 was
unconstitutional on the ground that it provides solitary punishment of death with no
alternative.
 It was also pointed out that death penalty was the only punishment available under
section 6(1) of the said law as well.
 The petitioners also argued that Article 5 of Universal Declaration of Human Rights
1948 is also reflected in Article 35(5) of our Constitution and
 Article 6 of International Covenant on Civil and Political Rights (ICCPR), 1996, which
was ratified by Bangladesh on 15 October 1998 and prohibits arbitrary deprivation of life.
 Article 6.5 of ICCPR provides that sentence of death shall not be imposed for crimes
committed by persons below 18 years of age.
Reasonings :
Since the only sentence is provided for the offence in the Ain 1995 the courts will be left with no
optionother than to award the death sentence. This is totally inhumane and illogical. A law which
is not consistent with notions of fairness and provides an irreversible penalty of death is
repugnant to the concepts of human rights and values, and safety and security.
Decision:
The Appeal is allowed in part.Section 6(2)(4), of Nari-o-SisuNirjatan Daman(BisesBidhan)Ain
(xviii of 1995), Section 34(2)(30 of Nari-o-SisuNirjatan Daman Ain,2000, Section 303 of Penal
code are declared ultra vires the Constitution.
Until new legislation is made the imposition of sentence in respect of offences in sub section (2)
and (4) ofsection 6 of the Ain 1995 shall be regulated by the Nari-o-SisuNirjatan Daman Ain,
2000.

Case NO.39
The Government of Bangladesh, represented by the Secretary, Ministry of
Labor and Manpower and others. Vs. Mohammad Anisur Rahman and
Others.
[18 MLR 2013 (AD) 272]
Analysis of Fact:
Being aggrieved by and dissatisfied with failure and in action of the Government in absorbing
the writ petitioners in the revenue budget, which was a promise made by the Government, the
writ petitioners moved the High Court Division by filing writ petition No. 3691 of 2010 and
obtained Rule Nisi. By the impugned judgment and order dated 07.04.2011, made the Rule
absolute with a direction upon the writ respondents to absorb the writ petitioners in the revenue
budget with continuity of service and other benefits within 2 months from the date of receipt of
the judgment.

Argument on behalf of the Petitioner:

Mr. Rajik-Al-Jalil, learned Deputy Attorney General, appearing on behalf of the leave
petitioners, submits that the project having been started after 30.06.1997, the writ-
petitioners-respondents are not entitled to be automatically absorbed in the revenue
budget and that the High Court Division totally ignoring this aspect of the case made the
Rule absolute and as such the impugned judgment should be set aside.
He further submits that the project under which the writ petitioners were employed
expired long ago and as such, no right has accused to the as they were employed on
temporary basis and as such, the impugned judgment should be set aside.

Argument on behalf of the Respondent:

Mr. SalahuddinDolon, learned advocate, appearing on behalf of the writ-petitioners-
respondents, on the other hand supports the impugned judgment and the materials on
record.

Decision:
The civil petition for appeal to leave is disposed of with the following observation-
The leave-petitioners are directed to absorb the writ-petitioners-respondents, under the
revenue budget subject to availability of same/equivalent posts under the bureau of
Manpower Equipment and Training provided that they have requisite qualification.
In the event of non-availability of adequate vacant posts to absorb the writ-petitioners-
respondents, the authority shall not make any recruitment in BMET in future until the
writ-petitioners are absorbed provided that they have requisite qualification.
The writ-petitioners-respondents are entitled to salaries and other benefits for the period
of rendition of their service.

Importance of the case:

In a case of this kind the interest of the public should get priority before anything.
 Case NO.40
Dr. MohiuddinFarooque vs. Govesssrnment of Bangladesh 22 BLD
(HCD) 2002 345
Petitioner:Dr. MohiuddinFarooque, being dead, his substitute, Mrs. SyedaRezwana Hasan,Advocate for
the petitioners

Respondent: Government of Bangladesh, Mr. KarunamoyChakma, the Learned Assistant Attorney

General for the respondent

Thematic Focus:Right to life and right to healthy & clean environment

Relevant Articles of the Constitution:32

Facts in Brief:

The environment and ecology of Bangladesh are being continuously endangered and threatened by
various activities originating from private and public sectors. The emission of hazardous smoke and
noises in the air from faulty and unfit motor vehicles lacking road worthiness as required by law are the
primary causes of environmental degradation and pollution of natural resources which affects the life and
livelihood of the people adversely. The most threatening urban centre is Dhaka which is the capital of the
country. The environmental hazards of the city are quite acute and incompatible with the conditions
required for the growth of human life and ecology. The investigation by the petitioner revealed the
following issues:
  Current procedure of granting fitness certificate of vehicles is based on human judgement which
is subject to error and corruption
 The petroleum products used by the vehicles is adulterated by addition of additives in it while
carrying and refining
 Lead-laced gas emits because of the use of leaded petroleum, severely affecting the lungs, liver,
brain and the nervous system resulting in high blood pressure, IQ and memory retention damage
among children and damage to foetuses leading to deformed babies.
 The high sulphur content in the petroleum and hence in the smoke, causes severe damage to
ecology
 The acute and visible environmental degradation adversely affect foreign investment and tourism
in Bangladesh
 The supply, distribution and marketing of degraded quality and adulterated petroleum products
are gross failure of the respondents in the performance of their statutory and public duties

Being aggrieved the petitioner moved this court and sought for following directions from court:

 To enforce restrictions against the incessant use of high noise making horns such as, pneumatic
horns by the trucks, buses, minibuses etc.
 To take immediate steps for providing correct certificate of fitness
 To set Bangladesh Standard for petroleum in accordance with the international standard ensuring
the reduction and removal of toxic and hazardous constituents from the same
 To ensure the conversion of all government owned petrol/diesel driven vehicles into CNG
operated vehicles
 To ensure that new and adequate number of CNG stations are set up in the Capital city
 To remove the two strokes three wheelers from the roads of Dhaka
 Unlicensed sale of fuel and low quality lubricants must be stopped
 Measures should be taken to reduce the level of sulphur initially to 0.5% in the long run
 The price gap between the kerosene oil and petrol be narrowed down to avoid adulteration
 Ban on new licenses for 2 stroke 3 wheelers in Dhaka
 Legal action be taken against the owners and drivers of the vehicles emitting polluted smoke into
the air

Decision:

After hearing the petitioners and respondents, the court issued directions to the respondents in accordance
with the directions sought by the petitioners and the writ petition was pending for the purpose of
monitoring. The respondents were also directed to give wide publicity to the directions of this court in
print and electronic media and submit reports every six months of actions and results of the directions to
this court.
 Case No 41
Bangladesh Legal Aid & services Trust Vs. Bangladesh & others
57 DLR, HCD (2005)

Synopsis of the Fact:

The petitioner is a National Legal Aid & Services Organization, which has been providing legal
advice, assistance & representation to the poor & marginalized sectors of society for over ten
years. The Daily Star, a reputated national newspaper published a front page news report dated
23 Dec. 2003 entitled ‘behind bars’ sans trial for years: 155 Dhaka Central Jail inmates languish
withno witnesses to “pin them down”. The news report stated that onw Mohammad Jahangir, son
of Abdul Rahman of Dholairpar, PS. Demra (“the prisoner”) Dhaka has been remanded in
custody from 12-9-92 to date. Despite having been in custody for over 11 years, & having been
produced on over78 occasions before the Court of the Second Additional Metropolitan Sessions
Judge, Dhaka, he remains under trial due to the prosecutions failure to produce witnesses. The
report further states that up to another 155 prisoner remain under trial in Dhaka Central Jail for
periods of five or more years due to the prosecution’s failure to produce witnesses. The report
further alleges that many other such “under trial” prisoners languish in other prisons across the
country for the same reason. The news reported as published in Daily Star, dated 23.12.2003 &
an editorial published therein dated 24.12.2003 has been annexed as Annexure-A.

Argument of the Appellant:

The continued incarceration of the under trial prisoner & an alleged 155 further under trial
prisoners by the respondents is without lawful authority in as much as it is ultra vires section 167
& section 339 of the Cr.PC.

The impugnated action of the respondents is without lawful authority in as much as it is in

violation of the prisoner’s fundamental rights to personal liberty & to a speedy trial as
guaranteed by Articles 31, 32 & 35(3) of the Constitution & it is also violative of the
Government’s obligations under International Human Rights treaties in particular Article 14 of
the International Covenant on Civil & Political Rights to a speedy trial, as ratified by Bangladesh
in the year 2000. A list of 7402 persons who are under trial prisoners has been furnished by the
petitioner to show that these persons are also languishing in the custody without trial for
indefinite period. In the Annexure- 1© that the respondents admitted that 104 female & 51
children are languishing in different district jails for more than 1 year & 16 under trial prisoners
are languishing in custody for more than 11 years. 10 for more than 10 years, 29 for more than 9
years, 51 for more than 8 years & 111 for more than 7 years, 238 for more than 6 years. 502 for
more than 5 years and etc. under the trial prisoners have been in different jails for periods longer
than maximum term which they could have been sentenced if convicted at all.
Argument of the Respondent:

The list of women prisoners in Dhaka Central jail who have been languishing there for more than
360 days & another list of children in the Dhaka Central Jail who have been languishing for
more than 360 days with number of the cases & the period of confinement.

Out of 7402 under trial prisoners 118 women & 214 are children below age of 18 years which
also supports the contention made in the petition. These listed prisoners are also prisoners who
have already convicted but facts remain that they have the right of appeal. It has been submitted
that some Jail Appeal are awaiting & it is appreciated that this court has arranged for disposal of
those Jail Appeal expeditiously.

There is no other trial accused in Dhaka Central Jail but the learned advocate for the petitioner
disputes this submission.

Decision:

The rule is disposed of with the direction upon the respondent to comply with the direction in
Suo Moto Rule 248 of 2003 & report compliance within 6 months from date.

Reasoning:

The petitioner is largest legal Aid Organization of Bangladesh & also the member of National
Legal Aid Trust should take step for implementation of the order but from the facts as the Court
have stated it appears that no meaningful step has been taken to improve the overall situation
despite such directions.

Case No 42
Shaid Hamid and another Vs. NiluferMomtaz and others.
[15 MLR 2010 (AD) 130]
Analysis of Fact:
The dispute for the title of the case flat is to be settled in civil court of competent jurisdiction.
Though it was not decided or proved, the title of the parties in the flat, the writ respondent No. 6,
Cantonment Executive Officer issued the impugned letter asking the writ petitioner to vacate the
flat. As the plaint of the writ petitioner was rejected, she had to move the High Court Division
and the High Court Division held that, writ petition cannot be said to be maintainable in order to
determine the legality of the impugned letter.
Argument on behalf of the Petitioner:
1. Mr. Rafique-ul-Huq, learned counsel, appearing for the petitioner, submitted that, the writ
respondent No. 8 having made a gift of the flat on 24.02.2005 in favor of his only
daughter, the alleged oral gift of the same flat on a later date on 11.03.2005 by the writ
respondent No. 8 n favor of the writ petitioner was invalid and did not create any right,
title of interest of the writ-petitioner in the said flat and hence, the writ petitioner not
having any legal right the writ petition is not maintainable.

Argument on behalf of the Respondent:

1. Learned advocate appearing on behalf of the writ-petitioners-respondent on the other
hand supported the impugned judgment of the High Court Division.

Decision:
The petition is dismissed on

Case No. 43
Dr.Ahmed Hossain vs Bangladesh and others 44DLR(AD)(1992)109
Fact of the case:The petitioor ner,a senior advocate of the court,unsuccessfully challenged the
vires of the Constitution(Tenth amendment Act,1990) in writ petition No 2306 of 1990 before
the High Court Devision.

Decision:The petition was dismissed.

Argument: The petitioner contends that after the period for reservation of thirty seats expired
on16th December,1987,no extension could be made.

The petitioner next contends that the impugned act is violative of the provisions of Articles 121
and 122(1) of the constitution.

The petitioner next contends that the impugned amendment by providing for indirect election for
the seats of reserved exclusively for women has destroyed the principle of democracy as
expressed in the preamble in clause (1) of article 7,8 and 11 of the constitution.

Counter argument:Clause 3 of the Article 65 was never deleted.The substation of the earlier
clause 3 by the new one can not be challenged as ultra vires.

The constitution on the date of its commencement provided for two different kinds of
election.Three hundred member s of the parliament are to be elected in accordance with law and
member for seats reserve d exclusively for women are to be elected by the members of
parliament.The Representation of the people (Seats for women members) Order 1973 provides
for that law.

So the court did not find any conflict between impugned amendment and Article 121 and 122(1)
of the constitution.

Reasoning:A system of indirect election can not be called undemocratic as the amendment was
not violative of Article 28.

Principle: Clause 4 in the Article 28 provides that nothing in that article shall prevent the state
,which expression includes parliament,from making special provision in favour of women.

Utility of adequate vacant posts to absorb the writ-petitioners-respondents, the authority

shall not make any recruitment in BMET in future until the writ-petitioners are absorbed
provided that they have requisite qualification.
The writ-petitioners-respondents are entitled to salaries and other benefits for the period
of rendition of their service.

Importance of the case:

In a case of this kind the interest of the public should get priority before anything.

Case No. 44
Bangladesh vs Abdul Motalab Dewan
45DLR(AD)(1993)108=1993BLD(AD)141
Fact of the case:Leave was granted in these two appeals for determination of a common
question of law namely whether the respondent government servants who were admittedly
appointed by Chief Conservator of forests could be compulsorily retired after a department
enquaryby the Conservator of forests on the strength of a circular for redistribution of
administrative powers issued by Deputy Secretary of the Ministry of Agriculture and Forests and
making the Conservator of Forests as the appointing authority for the posts the respondents were
holding at the time of the order of compulsory retirement. In both the matters the Administrative
Tribunal set aside the order of compulsory retirement.

Argument:The circular dated June4,1981 was not issued by thr President and as such had no
legal effect. Sub rule (6) of Rule 4 Provides that no authority subordinate to that by which a
Government servant was appointed shall be competent to impose on him any major penalty.
Furthermore,an order for compulsorily retirement by way of penalty amounts to removal from
service the respondents are also entitled to protection under Article 135 of our Constitution. Such
protection can not be taken away either by the parliament in its statute making power or by the
president in his rule making power.

Reasoning:Even if the circular was passed by the consent of the President then also order would
not have affected the Government servant’s right to protect him under the Constitution with
reference to his position at the time of his appointment.

Principle:The statutory provision could not be taken under rules otherwise it would wipe out a
proviso and destroy protection contaoined not in the rule but in the statute provision.

Case No. 45
Anti-Corruption Commission Vs. Dr. H. B. M. Iqbal Alamgir and others.
[15 MLR 2010 (AD) 103]
Analysis of Fact:
The writ petitioner (Dr. H. B. M. Iqbal Alamgir) moved the High Court Division although he
was a fugitive from justice on the date he moved the writ petition.

Argument on behalf of the Petitioner:

1. Mr. Md. KhushidAlam Khan, the learned counsel for the petitioner contended that the
learned Judges of the High Court Division acted illegally in taking cognizance of the writ
petition in failing to notice that the writ petitioner is a fugitive from justice and without
surrendering before the concerned, the writ petition is not legally maintainable.
2. It is further contended by the learned counsel that the writ petitioner has alternative
remedy under section 10 of the Criminal Law Amendment Act, 1958 and therefore the
writ petition in presence of, alternative remedy is not legally maintainable.

Argument on behalf of the Respondent:

1. Mr. Masood R. Sobhan, learned counsel appearing for the writ petitioner, contended that
the initiation of the criminal proceedings against the writ petitioner being violative of
Rule 15(2) of the Anti-Corruption Commission Rules, 2007, all subsequent steps taken in
the proceedings including the conviction and sentence are vitiated, and thus, the writ
petitioner having no other alternative remedy invoked his fundamental rights in writ
jurisdiction, which the High Court Division being satisfied, exercised its jurisdiction
irrespective of the fact that special Judge issued a process but in an illegal proceeding.

Decision:
The petition is disposed and the order of stay will continue till the disposal of the writ petition.
And the High Court Division was directed to transmit the record of Special Case No. 19 of 2007
to the Special Judge, Court No. 1, Dhaka, if in the meantime the record is received by the High
Court Division, in pursuance of its earlier order dated 22nd November, 2009.

Principle:
A fugitive from justice is not entitled to obtain a judicial order defying the process of the court.
This settled principle is being followed for over 60 years in this sub-continent. And references in
this connection are Chand Shah Vs. Crown [8 DLR (HC) 24], GulHasan Vs. State [21 DLR (SC)
109], Anti-Corruption Commission and others Vs. Mahmud Hassan and others [61 DLR (AD)
17].

Importance of the case:

It was opined that, the learned advocates who move applications for the fugitive shall also have
to face the consequences of committing contempt of court which clearly signifies the importance
of long practiced principle. In our country, it is obligatory to submit the due process of law who
seeks the interference on revision of a judicial order. The rule of law depends upon definite
principles and binding precedent, which together make out certainty, uniformity and
predictability. And these in turn provide the foundation of fairness in justice delivery system.

Case No.46
Md.M. RahmanVs Water Board 1981 BCR 375

Rule of Law:

Article 27 of Constitution of bangladesh

Fact:

In the case of right of promotion of the Diploma-holder promotee Assistant Engineers and direct
recruit Assistant Engineers to the post of Executive Engineers. The direct recruit Assistant
Engineers have got no exclusive legal or vested right of promotion to the post of executive
engineers in the water development board. But they are absorbed in one cadre, they form one
class and there will be no classification for the purpose of promotion to the higher post.

Issues:

whether art 27 is violated or not.

Arguments:

In writ petition no 909 of 1979, The petitioner was fairly appointed as an assistant engineer by
the Bangladesh water development Board. The petitioners and the diploma holder engineer
having passed the AMIE examination could be promoted to post of Executive Engineer. It was
also decided by the chairman of the board that 10 percent of the post of Executive Engineer
would be filled up by promotion from diploma holder Assistant Engineers. The order of the
deputy secretary of ministry of finance informed that a common seniority list should be
maintained for promotees and direct recruits from 1st July 1977. Due to the publication of the list
the chance of promotion, the petitioner have been adversely affected because petitioner was one
of the few senior most Degree-holder Engineer appointed on 26.12.1978.........

Unreasonable classification can be interfered with the court. In this petition the petitioners are
aggrieved because there has not been any classification between Degree holder and the Diploma
holder Assistant Engineers. They have got no legal grievance that the court can redress. Mr. Pal,
the learned advocate appearing for the Diploma holder promote in writ petition no 660 of 1980
had pointed out The Roshanlal’s Case. This ease laid down that direct recruit and promotees lose
their birthmarks on fusion in to common steam of service and they can notthere after be treated
differently though they were recruited different sources.

Decision:

The seniority list which was prepared under WAPDA Rules is reasonable. So art. 27 is not
violated. Prayer for a certificate under art 103 (2) (a) of the constriction is hereby refused as the
cases do not involve any question of law as to interpretation of the constitution. Prayer for ad
interim Stay of the operation of this order is also refused in this petition .

Principle: Art 27 of the constitution; All citizens are equal before law and entitled to equal
protection of law.
 Case No. 47
Md.Faruque Reza v Bangladesh 29 DLR (HD)1977

Analysis of fact:

The detenu Mrs.Tahera Banu alias Jolly is the wife of Mr.Ghulam Mostafa,was a freedom
fighter.the detenu’s husband after the liberation of Bangladesh joined Jatiya Samajtantric Dal
and later he went on absconding and his wife went to his father’s house at kanchanagarpara in
the District of J essore and stayed there with her parents.the house of her husband was searched a
number of times at behest of the police.on 29-4-1976 the detenu was arrested from her father’s
house at about 10/11 a.m and detained in the local police station upto 3-30 pm and then she was
taken to the residence of the superintendent of police,Jessore and detained there upto 12pm and
later she was put in custody of the central jail of Jessore.on 11-5-76 she was served with a copy
of the order of detention.

Arguments:

Mr.Md..Ansar Ali,the learned Advocate,appearing for the petitioner,has submitted that the order
of detention is vague and it was passed illegally for collateral purpose for harassing the detenu
for her husband’s political activities.

Mr.M.M.Huq,the learned assistant Attorney General has submitted that there was sufficient
materials before the district magistrate to satisfy himself that the detenu was connected with jaiya
samajtantric dal and she as active in a manner prejudicial to the security,the public safety or
interest of Bangladesh.

Decision:

It was held that the detenu was held in custody in Jessore central jail without lawful authority.

Reasoning:

It was impossible to gather either from the order of detention or from the affidavit of the
respondents,for prevention of which kind or kinds of prejudicial act or acts the detenu was being
held in custody.
Principle:

Vagueness in an order of detention may not be fatal ut if the cour finds it difficult to satisfy
itself,ecause of vagueness of the order,as to the lawful authority of the order,then such order
ought not be allowed to continue.

Conclusion:

One person cannot be confined in police custody without lawful authority.

Case No.48
Dr.Nurul Islam Vs Bangladesh 33 DLR AD 1981
Fact:
Dr.Nurul Islam, Professor of medicine, was relieved from his practising post and continued as
director of the institute. He challenged the order in this regard in High court division and
succeeded in his writ. As the High court division declared the order is made without any lawful
authority. In reaction to this order, the government gave him mandatory retirement under section
9(2) of the public service retirement act, 1974. The High court division refused to interfere with
government decision in this regard and the appellant moved to the appellate division against the
aforesaid decision of High court division.

Issue of the case:

 Whether section 9(2) of the public service retirement act conferred a wide and unsolicited
power of authority to the government.
 Whether Article 27, 29,133, 134, 135 of the constitution is contradictory with the order
issued by the government.

Relevant Argument:
In favour:
 Section 9(2) of the public servants retirement act violates the article 27 and 29 of the
constriction as it gives discriminatory and discretionary power of the government on the
matter of selecting government servant for recruitment.
 As a reputed doctor the appellant cannot be retired on the ground of inefficiency or
misconduct.
  As the appellant is not given the opportunity of being hard before the retirement it
violates the article 135 of the constitution.
In Against:
 Section 9(2) of the public servants retirement act does not violate Article 27 and 29 of the
constitution because the discretionary power would be exercised only in fulfilment of 25
years of service and it is applicable equally to all. No guidance was necessary in
exercising it.
 As the public servants retirement act had been made in terms of Paragraph 10(2) of the
fourth schedule of the constitution it would prevail in spite of any inconsistency of the
constitution.
 Article 133 and 134 should be taken into consideration in determining the equality clause
of the constitution. As the article 133 and 134 subjects the terms of the service and tenure
to the pleasure of the president, Section 9(2) of the public servants retirement act should
not be conformity with article 27 and 29.

Reasoning:
According to Badrul Haider Chowdhury J. as Section 9(2) does not provide any principal or
guideline for exercise of discretionary power it provides scope for arbitrary exercise. In this
view section 9(2) is bad and ultra virus to the constitution.
RuhulAlam J. states that the statutory provision exhibits a total disregard of the guidance
provided by article 135 of the constitution.

s.

Case No.49
Ashraf and Others Vs. Md.Jahangir Alam and Others

60 DLR (AD),2008

Facts:
The short fact is that Md. Jahangir Alam,the respondent No.1 in Civil petiion No.223 of 2005,filed writ
petition No.1363 of 2004 stating, inter alia,that the Ministry of Housing and Public Works decided to sell
out 374.31metric tons of old iron and steel materials lying in the godowns in Sylhet PWD
zone.Accordingly,auction notices inviting quotations of 14 items of the aforesaid materials were
published by the writ Respondent No.2, executive Engineer, Sylhet PWD Division, Sylhet .But the writ
petitioner was surprised to know that the writ respondent No.2,punlished fresh auction notice inviting
quotations for sale of 252.409 metric tons of MS Rods and 40.243 metric tons of MS bars as the
remaining materials of the 5th call and fixed 28-03-2004 for submitting fresh tenders without any notice to
the writ petitioner.The writ petitioner therefore filed the filed the writ petition challenging the auction
notices of the 6th call dated 06-03-2004 and obtained the Rule.

The High Court Division thereafter by the impugned judgement dated 4-01-2005 made the Rule absolute
directing the writ Respondent Government to accept the price negotiated by the Court during the hearing
of the Rule.

Argument of the Petitioner:

The learned counsel for the appellants strenuously argued that the writ petitioner Respondent Jahangir
Alam, having accepted the decision of the writ respondent Government as contained in annexure C
series to the writ petition and paid for the aforesaid 5 items out of 14 items of the 5th call of tender and
having taken delivery of them without any objection, was stopped from filing the writ petition in question
and the Rule issued therein was therefore liable to be discharged summarily. It is also argued that the
learned judges of the writ Court acted in excess in their jurisdiction in negotiating the price and directing
the writ Respondent Government to ac for the eccept such price for the aforesaid 9 items and, as such, the
impugned judgement is liable to be set aside.

Argument of the Respondent:

The learned counsel for the writ petitioner Respondent however, argues in support of the impugned
judgement and the reasonings assigned in support of the same.

Decision with reason:

The points raised and argued by the learned counsels for the appellants have a good deal of force.The writ
petitioner having paid the price the price for the said 5 items and taken delivery of the same was debarred
from raising any caim in relation to remaining 9 items and accordingly,The Rule was liable to be
discharged. For this reason ,the appeals are allowed without any order as to cost.
Conclusion:

In this case, the disapproval and dissatisfaction, at the conduct of the learned judges of the writ Court on
negotiating the price of the remaining 9 items ,by this Court is clear.

To consider a matter before court it will consider only the legal entitlement.