Assignment on Civil drafting III

Submitted by
Tanvir Mahtab
ID. 181100018
Semester: 12th
Course: Civil Drafting III

Submitted to
Syeda Nasrin
Eastern University

Date: 20/11/21
 1. Chowdhury Mohmood Hossain Vs. Bangladesh and others
Writ Petition No. 5050 of 2001
Summary of the fact:
The petitioners filed the petition and claim that the respondents breached constitutional
obligations and statutory duties in dealing with public property in clear violation of legal
mandates and public policies. In 1998, Ministry of Information invited tenders to install and
operate a Television Channel under the private ownership. A Technical Committee was
constituted for the purpose of evaluation of the tenders. The petition enumerated that the
evaluation report was submitted to the Ministry of Information, the Technical Committee
illegally changed the evaluation report and put ETV at the top of the list which also violated
the lawful rights of other truly qualified companies.
Chowdhury Mohmood Hossain also claimed that, the Finance Minister unlawfully deleted the
condition of charging Tk. 1200/- per hour in case the private channel transmits its
programmes simultaneously when the BTV also transmitting its programmes.
He in addition stated in the petition that at the time of signing of the agreement, Ekushey
Television Ltd. was not even formed and thus the contract was illegal.
Moreover, it was also mentioned that no licence was obtained from Ministry of Post and
Telecommunications and no apparatus was imported by the E.T.V. Ltd. after obtaining
license and clearance from that Ministry.
Lastly, the appellant claimed that as the E.T.V. was given the facilities of using the towers
and premises of B.T.V, the security of B.T.V. has been threatened because the B.T.V is a key
point installation.
However, the main allegation of the petitioners is, by granting a license for private T.V.
channel, the respondents have acted in breach of law and the policy formulated by the
Government and did not act to protect national interest. The court hereinafter issued a rule
NISI by calling upon the respondents.
Understanding and interpretation:
The court found evidence proving that the evaluation report was changed but the respondents
failed to satisfy the court with proper reasons of changing the report. The court relied upon
the judgement of Supreme court of an Indian case, AIR 1996 (SC)11 and came to the
conclusion that, the whole transaction and evaluation is mala fide as they found the process of
arriving at a decision was not transparent, and there was something wrong somewhere which
the respondents.
Regarding the agreement signed between the Ministry of Information and A.S. Mahmud, the
court by relying upon article 145 of the Constitution of Bangladesh, observed that, it was
irregular but cannot be considered as invalid or void though at the time of agreement, ETV
was not formed. But, the court scrutinized that, as accepting the proposal of ETV was mala
fide and not transparent, they are of the view that granting of the license was not also lawful.
Regarding deleting the clause charging of Tk. 1200/- per hour, the court considered it
an inter-ministerial matter and Finance Minister, was competent to take such decision and
thus deleting the clause was not illegal.
Lastly, concerning the using the towers and premises of B.T.V, the court found it legal as
ultimately clearance was given by the Key Point Installations Defense Committee, annexure
16(c).

Locus Standi:

The respondent argued that, the petitioners have no locus standi to file this writ petition
because they do not represent the common people nor they have come for mitigating any
common grievance. Even, those who participated in the tender did not move this court for
any relief and there was no such evidence that they were not capable of doing so.
They have referred to the case of Dr. Mohiuddin Faroque as reported in 49 DLR (AD)1 and
tried to prove that the present petitioner has no locus standi.
The court agreed that the above-mentioned legendary case gave some guideline to determine
the locus standi but there may be various other facts and circumstances under which public
interest litigations may be entertained by this Court. The case reported in 49 DLR (AD)1
stated that a person who is not personally aggrieved may also come if his heart bleeds for his
less fortunate fellow for any wrong done by the Government. It is also evidenced that when
an action concern public wrong or injury or invasion on the fundamental rights of
indeterminate number of people, any member of the public being a citizen suffering the
common injury has the right to file writ petition under Article 102 of the Constitution.
However, the court found that a wrong was done by the Government and thus, Chowdhury
Mohmood Hossain, the present petitioner, being a citizen suffering the common injury has
the locus standi.

2. BRAC Vs. Professor Mozaffar Ahmed and others

And
Bangladesh Bank Vs. Professor Mozaffar Ahmed and others
Civil Appeal No. 192 of 2000 and Civil Appeal No. 193 of 2000

Summary of the fact:

Professor Mozaffar Ahmed and others filed a writ petition regarding the validity of certificate
dated 4.4.1999 of Bangladesh Bank giving no objection for the incorporation of BRAC Bank
Limited by Bangladesh Rural Advancement Committee briefly known as BRAC a society
registered under the Societies Registration Act, 1860. The petitioner claimed that as BRAC is
entitled to engage itself in charitable purposes and other activities according to section 20 of
the Societies Registration Act but not permitted to undertake the activities of sponsoring,
owning, controlling, or operating a banking company or other commercial enterprises.
Moreover, BRAC was not a lawfully constituted public limited company since it was
composed of less than seven persons. The court made the rule absolute.
Feeling aggrieved, Brank and Bangladesh Bank filed an appeal against that order passed in
writ petition.
Understanding and interpretation:
Regarding the validity of opening a Bank, the court observed that a society registered under
the Societies Registration Act may invest its fund with the object of getting more money
for spending in charitable purposes. The main object of this investment is to provide charities
to deserving persons and not to make profit. Thus, the investment by BRAC in opening
BRAC Bank Limited is not for profit and likewise not unlawful. The bench considered All
England Law Reports 1958 page 612.
The learned bench mentioned a default in the prayer of writ petition and stated that a bank
which is already incorporated cannot therefore be wind up at the instance of the writ
petitioner in an indirect manner. The court found that, writ petitioner as found from the
prayer portion
wanted to cut at the root of incorporation which is not permissible under the law and the writ
petitioner is not entitled to any relief. The Court came to this conclusion that, the previous
court failed to appreciate the legal position and wrongly made the rule absolute.
The respondent, further submits that both Bangladesh Bank and Registrar of Joint Stock
Companies have completely disregarded the provision of section 92 of CPC while issuing
their respective impugned orders. However, the court found that this section is meant for trust
properties which is governed by Trust Act and not applicable to charitable societies registered
under the Societies Registration Act. And thus, the claim of the respondent was invalid.
The court also stated that, both Bangladesh Bank and Registrar of Joint Stock Companies
acted within the frame work of law and no disregard of law is visible.
Hereby, the court, after considering all the arguments, allowed the appeal and the judgment
passed in Writ Petition set aside and dismissed.

Locus Standi:
Petitioner submits that the writ petitioner has no locus standi to file the writ petition as he did
not disclose how he was aggrieved and also, he was not representing the common people for
mitigating their common grievance. The court also relied upon this statement.
In the present case, BRAC and Bangladesh Bank have the locus standi to file this appeal as
they felt aggrieved by the judgment and order passed in the writ petition filed by Professor
Mozaffar Ahmed.

3. Fazlur Rahman & Co Private Ltd. Vs. 'MV Chosun Hopi' and Ors.
Admiralty Suit

Summary of the fact:

The plaintiff imported from China 9420 MT and 800 MT Soda Ash Light which has been
carried on board by the defendant No. 1 vessel 'M.V. Chosun Hope'. The owner guaranteed,
that the vessel will arrive at the discharge port of Chittagong by 11th June 1997 and
otherwise the owner shall be responsible for consequences. The vessel arrived late at the
discharge port and in the meantime the government fixed 2.5% development surcharge on the
import of this type of cargo. After discharging the cargo, it appears that the vessel will deliver
less cargo then received on board at the loading.
The plaintiff hereinafter, prayed for compensation on the basis of the market value of 360 MT
of Soda Ash Light Taka 12,005 per MT
and also, compensation for late delivery for which a development surcharge was imposed
upon the Cargo, totaling an amount for Taka 1,27,61,175 against the
defendant.

Understanding and interpretation:

The court framed 8 separate issues, such as,

(1) Is the suit maintainable under Admiralty Jurisdiction?
(2) Has the plaintiff any cause of action against these defendants?
(3) Did the defendant ship arrived in reasonable time? If not then to what
extent is the ship responsible?
(4) Is the suit bad for mis-joinder and nonjoinder of the parties?
(5) Is the suit barred under the principles of estoppels, waiver and
acquiescence?
(6) Was there any damage and short landing of the cargo as alleged by the
plaintiff?
(7) Has the plaintiff suffered any losses and damages? If so, are these
defendants liable for the same?
(8) Is the plaintiff entitled to any decree against these defendants? If so, to
what extent?
The court primarily found that, the plaint was ill drafted. Regarding the cause of action, the
court first considered whether the ship arrived late or not. After considering the speed of the
ship, time consumed for taking instruction from the charterer and the circumstances of the
sea, the court concluded that, there was no negligence of the defendant and the delay of 13
days was reasonable. Thus, cause of action did not arise from the late arrival of the ship.
Secondly, regarding the sur charge, the plaintiff obtained relief from payment of development
surcharge through the Writ Petition No. 4120 of 1997 and, as such, the plaintiff suffered no
loss on the said count. This also did not arise any cause of action.
Regarding the short landing of the product, the court concluded that, the vessel is liable to
discharge the same quantity of the consignment. Therefore, this Court found that the
defendants are liable to compensate the plaintiff in respect of the short landing of goods.
Locus standi:
The respondent referred Traders vs. 'M.V. Sletter' reported in 7 BIT (AD) 381 and argued
that, as the Sonali Bank is the consignee of the cargo and the plaintiff has got no aggravation
thus, locus standi to institute the instant suit. However, the court contended that, the plaintiff
ultimately took the delivery of the goods through the L/C opening Bank, and thus has locus
standi to institute the suit.
 4. Human Rights and Peace for Bangladesh (HRPB) and Ors. Vs. Bangladesh and
Ors.
Writ Petition
Summary of the fact:
Due to continuous illegal encroachment, earth filling and building of structures, the river
Kornofuli and its banks, day by day it is losing its width, depth and navigability. The
petitioner filed this writ petition to protect the river Kornofuli and its banks from unlawful
encroachment that has been obstructing the natural course of Water flow in as well as has
been adversely affecting the environment. However, city corporation did not take any steps to
protect the river.
Understanding and interpretation:
Firstly, the court considered the survey report and confirmed that 2187 illegal occupants
illegally seized the banks of river Karnofuli. The court look upon Natural Water resource Act
2000, section 2(c) concluded that city corporation is the competent authority to protect such
illegal seizing and by considering section 2(f) contented that, river Kornofuli is a natural
water resource.
The court after that, take sections 2,4 and 6 of Environment Conservation Act, 2005 and
concluded that that acts of those occupants were unlawful and punishable.
The court found appropriate grounds on behalf of the petitioner and made the rule absolute.
Locus standi:
HRPB was not aggrieved by those acts but lives of millions of people residing in Chittagong
Metropolitan City area and on both sides over the banks were at risk. These were sufficient to
bleed someone’s heart and according to legendary case, Dr. Mohiuddin Farooque vs
Bangladesh,1 writ petition can be filed by the person aggrieved and the term person aggrieved
means not only any person who is personally aggrieved but also one whose heart bleeds for
his less fortunate fellow. The same was upheld in NBR vs Bangladesh2 case. In this case,
HRPB represented the sufferings of those millions of people, whose lives were at risk. Thus,
the petitioner had the locus standi.

5. Mohammad Emrul Kayes and Ors. Vs. Government of the People's Republic of
Bangladesh and Ors.
Writ Petition

Summary of facts:
Government allotted a House for the Secretary. Ministry of Industry which was
recommended by the Hon'ble President of the People's Republic of Bangladesh for an

1
49 DLR (AD) 1.
2
18 BLC (AD) 116.
Hon'ble Judge of the High Court Division. after investigating the matter and it was revealed
that a number of Hon'ble Judges' applications for accommodation, after the same being
forwarded by the Hon'ble Chief Justice of Bangladesh, were kept unnoticed in the Ministry of
Public Works and Housing. Respondent Nos. 1&2 were duty bound to comply with the said
recommendation of the Hon'ble President. Moreover, the members of the administrative
branch, ranking from Joint Secretary to Senior Secretary, are being regularly endowed with
luxurious apartments and bungalows. The petitioner asked for a suo moto rule regarding this
deplorable treatment of the state functionaries in providing the Judges of this Court with their
legal entitlements. In the second writ the petitioner, asked for a rule to be passed for directing
Finance Division to increase the amount of the residence allowance. Third Writ Petition
mentioned that, the state functionaries, who are responsible for fixation of remunerations,
privileges and other benefits, including allocation of suitable accommodation for the Judges
of the Supreme Court, are discriminating against the latter in allocation of the residence in
violation of the relevant laws of the land. The court issued a rule NISI calling upon the
respondents and also passed some interim orders during the pendency of the rule.
Understanding and interpretation:
The court identified two core issues of the case namely,
the impugned actions of the
• respondent allocation of the Government accommodation to the person holding
Constitutional posts and
• the constitutionality of the second part of Section 4(1) (a) of the Supreme Court
Judges (Remuneration and Privileges) Ordinance, 1978.
The court considered many national and Indian cases such as, Sayeda Rizwanna Hasan Vs
Bangladesh reported in -18 BLC (AD) 54 where the court found that, Courts have always
been considered to have an overriding duty to maintain public confidence in the
administration of justice. Doing justice is the paramount consideration and that duty cannot
be abdicated or diluted by reason of improper application. It is recognized in the public
interest that the authority acting by virtue of statutory powers cannot exceed his authority.
Regarding the final issue of the instant Rules concerning whether the impugned part of
Section 4(1)(a) of the Ordinance, 1978 is liable to be deleted and declaring ultra vires of
Article 27, 29, 31 and 147 (2) of the Constitution and also repugnant to the scheme of the
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978, the court relied upon
another case, Zainul Abedin Vs Bangladesh reported in 34 DLR 77, where, the Government
Servants (Seniority of Freedom Fighters) Rules, 1979 was knocked down on the ground of
being violative of Article 27 and 29 of the Constitution.
The court also considered the opinion of prominent scholars Mahmudul Islam. He stated in
his "Constitutional Law of Bangladesh" (3rd Edition, Page 227) comments that
"Discrimination in the matter of condition of service of the same category of employees is a
violation of Articles 27 and 29."
After acknowledging all the case laws and jurist writing, the court made the rules absolute.
Locus Standi:
Locus standi was one of the most important concern of this case. The court considered that
the petitioners have locus standi though the writ petition was made by advocates, not the
aggrieved party. The respondents argued that article 102 of the constitution requires
aggrieved persons to be filed writ petition. Even the case of Mohiuddin Farooque, aggrieved
person refers to someone whose heart bleeds for the less fortunate fellows but in this case, the
aggrieved are not less fortunate of the society. For concluding this decision, the court
considered some case laws, such as, In the case of Advocate Manzil Morshed and others vs
Government of Bangladesh and others (Writ Petition No. 2427 of 2011) the petitioners'
standing was not questioned. From the landmark case laws and lexis of the jurists on the
locus standi, the court conclude that, the advocates of our country in PIL Cases in
approaching this Court in the interest of the judiciary, "The Bangladesh Bar Council Canons
of Professional Conduct and Etiquette" encourages the lawyers to take a standing in the
establishment of social justice, which declares that "And whereas by their efforts Advocates
are expected to contribute significantly towards the creation and maintenance of conditions in
which a government established by law can function fruitfully so as to ensure the realization
of political, economic and social justice by all citizens.” Another case, SP Gupta Vs. Union
of India, AIR 1982 (S.C.) 149, regarding the same ground states that, the profession of
lawyers is an essential and integral part of judicial system and the lawyers may figuratively
be described as priests in the temple of justice. They have special interest in preserving the
integrity and independence of the judicial system, and if the integrity and independence of
judiciary is threatened by any act of State or any public authority, they would naturally be
concerned about it because they are equal partners with the Judges.
The court recognized the applications to be one of the routine cases and maintainable at the
instance of the petitioners and we also find that this Court is competent to adjudicate upon the
cases. Thus, the petitioner has locus standi.

6. Shafi A. Choudhury Vs. Pubali Bank Ltd. and others

First Appeal

Summary of fact:
Shafi A. Chowdhury, appellant in this case, instituted the instant suit for declaration and
injunction against Pubali Bank Ltd., Bangladesh Bank and others contending, that 6,35,980
shares out of 6,56,000 shares of Albert David (Bangladesh) Ltd. The said company was
declared abandoned and those shares stood vested in the Government of Bangladesh.
In pursuance of the policy of the Government those shares were disinvested and the plaintiff
purchased those shares in public auction and the liabilities of the defendant company owed to
the Pubali Bank Ltd. to the extent of Tk. 1.15 crores which was accepted by the plaintiff who
became the Chairman
and the Managing Director of the company but Government, failed to transfer the said shares
in his favour and six others. Hereinafter, the plaintiff filed a suit for specific performance of
contract, declaration and injunction before the Third Court of Subordinate Judge. The
plaintiff further stated that he repeatedly requested the defendant Pubali Bank Ltd. to make an
audit in the accounts of the company in order to find out the actual dues outstanding against
the company and also asked them not to charge interest during the audit period. But the
defendant delayed the matter in calculating the interest by nearly three years.
Suddenly Bangladesh Bank issued a letter to the plaintiff, under section 17 of the Bank
Companies Act. 1991 demanding payment of Tk. 2,25,03,408.62 within a period of two
months from the date of receipt of the said notice. On receipt of the said notice, the plaintiff
issued a notice upon the Bangladesh Bank, demanding withdrawal of the said notice, but
without waiting for a period of 15 days, a writ petition under Article 102 of the Constitution
of the People's Republic of Bangladesh was filed before the High Court Division on behalf of
the
plaintiff challenging the legality and the propriety of the notice. Subsequently the rule was
discharged. His appeal before the Appellate Division was also dismissed. After that, the
plaintiff filed another representation on 25.8.1999 before Bangladesh
Bank stating, that he was neither a borrower nor a defaulter or a guarantor for the alleged
liability of the Company and prayed for withdrawal of the notices but this was
refused by Bangladesh Bank and he was removed from the post of directorship of the Pubali
Bank Ltd. under section 46 of the Act. The plaintiff filed a Writ Petition challenging such
removal but the rule was discharged. Against the said judgment and order he went in appeal
before the Appellate Division and also obtained an order of stay for a period of six months till
12.1.2000. That Pubali Bank Ltd., informed the company that its liability stood at
1,15,03,916.25 but illegally
referred the matter to Bangladesh Bank for its approval although the plaintiff was a director
of Pubali Bank and the company never applied for remission of any interest, rather, he
already paid Tk. 11,50,391/- to the defendant no. 1 on behalf of the Company. Since his case
was not considered on merit either by the High Court Division or in appeal, by the Appellate
Division. As such, the plaintiff filed the instant suit for
declaration and injunction.
Understanding and interpretation:
After appearing before the court, the defendant filed an application under Order VII rule 11
read with section 151 of the Code of Civil Procedure, praying for rejection of the plaint. The
defendant also claimed that, the suit is not maintainable since both the High Court Division
and the Appellate Division held that the plaintiff was responsible of the loan to Albert David
(Bangladesh) Ltd. And also, the suit is barred by law and the plaintiff has got no cause of
action for the suit. The plaintiff stated that, he is required to pay Tk. 1,03,53,524.62 only and
not Tk. 2,25,03,408.62 as demanded by the defendant. The court observed that, this kind of
declaration involving pecuniary relationship of the concerned parties does not come within
ambit of declaratory suit under Section 42 of the Specific Relief Act. Besides, such a
declaration may tend to oust the jurisdiction of the Artho Rin Adalat established under the
Artho Rin Adalat Act, 1990. By considering the above facts and circumstances, the court
would hold that this suit for declarations as mentioned in prayer in paragraph 50 of the plaint
is not maintainable under section 42 of the Specific Relief Act.
Under such circumstances the court dismissed the appeal.
Locus standi:
In filing a suit under section 9 the plaintiff must have locus standi as well as legal right, in
order to claim a relief against a defendant. In this case, it appears from the plaint itself that no
shares in Albert David Ltd. has yet been transferred in favour of the plaintiff. This fact as
mentioned in his own plaint shows that he has got no interest in the said company and cannot
file a suit on its behalf without any specific and tangible interest in the said company. if he
wants to resolve his own liability then he can file a properly framed suit but not a suit for
declaration. As we know that, only an aggrieved person can file a suit to enforce his rights.
Shafi A. Choudhury had no interest and he was not aggrieved. And thus, he did not have
locus standi to appear before this court.