Head Note

The Law Messenger

Volume– V

2018 (2)

 

 (CIVIL JURISDICTION)

A

The Abandoned Buildings (Supplementary Provision) Ordinance, 1985

Section 5

No notice under section 5 of the Ordinance–

The High Court Division found that all the documents including the original lease deed, the original allotment letter and other papers and documents relating to the case property had been placed before it. The High Court Division had gone through the papers and on consideration of those documents found that the respondents had been in possession of the disputed property before promulgation of Abandoned Buildings (Supplementary Provision) Ordinance,1985. Admittedly, no notice under section 5 of the Ordinance had been served upon the respondents before enlistment of the property in the list of abandoned buildings to surrender possession of the disputed building to the appellant. We do not find any substance in this appeal. Accordingly, this appeal is dismissed. There is no order as to costs. .....Ministry of Public Works & Housing =VS= Md. Haroon, (Civil), 2018 (2) [5 LM (AD) 348]

The Abandoned Buildings (Supplementary Provision) Ordinance, 1985

Section 5(1)

Condonation delay of 1155 days–

We do not find any illegality or infirmity in the decision of the High Court Division in refusing to exercise its discretion to condone the delay. The High Court Division rightly took into account the negligence and laches on the part of the appellant who managed to lose the file twice before the appeal was finally lodged after an inordinate delay of 1155 days. We do not find any merit in this appeal which is accordingly dismissed, without any order as to costs. ..... Public Works Department =VS= Md. Nizamuddin, (Civil), 2018 (2) [5 LM (AD) 374]

The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Section 7(1)

A judgment obtained by playing fraud is a nullity–

A judgment obtained by playing fraud is a nullity and non-est in the eye of law. The writ petitioner, while obtaining the judgment of the High Court Division, suppressed the material document which amounted to fraud. The judgment and order of the Court of Settlement has been obtained by practising fraud and pursuant to the said order, the writ petitioner-respondent managed to get the impugned judgment from the High Court Division, the same is a nullity. The appeal is allowed. The judgment and order of the High Court Division is hereby set aside. .....Ministry of Housing & Public Works =VS= M/S. Hanif Brothers, (Civil), 2018 (2) [5 LM (AD) 92]

Abandoned building–

The High Court Division in exercise of its writ jurisdiction cannot sit as a court of appeal over the judgement of the Court of Settlement for re-settling the questions of fact. In that case also the Court of Settlement on consideration of the materials on record arrived at a finding that the petitioner in that case was not the daughter and heir of the original lessee and that she had not been in possession of the house in question at the relevant time. The respondent failed to prove her claim to be the heir of the original allottee and also that the building was unlawfully declared abandoned. She could not prove that she was in possession of the building. The Court of Settlement, having called the relevant records for the building in question, came to a finding that the building was in the possession of the Government and declared it as having been lawfully declared as abandoned property. We find merit in the appeal, which is accordingly allowed, without however, any order as to costs. The impugned judgement and order of the High Court Division is set aside. .....Government of Bangladesh =VS= Musammat Amikun, (Civil), 2018 (2) [5 LM (AD) 1]

The Administrative Tribunals Act, 1980

Section 4(2)

The termination of the appellant was a “termination simpliciter” without attaching any stigma and that in fact no departmental proceedings were brought against the appellant in spite of serious allegations against him. In such a situation it would be illogical to sustain the order of the Administrative Tribunal thereby reinstating the appellant in service on an unwilling employer. Admittedly, the appellant was entitled to get 3 months’ salary in lieu of notice. The Administrative Appellate Tribunal, therefore, rightly allowed the appeal in part setting aside the judgement of the Administrative Tribunal. The respondent Grameen Bank is hereby directed to pay the appellant Md. Azizul Haque salary for two years at the rate which was paid to him as on the date of his termination of service. With the above direction, the appeal is disposed of, without, however, any order as to costs. .....Azizul Haque(Md.) =VS= Grameen Bank, (Civil), 2018 (2) [5 LM (AD) 51]

The Administrative Tribunal Act, 1980

Section 4

We note that the Appellate Tribunal found that there was no dispute that the petitioner (respondent herein) cross-examined some other P.Ws. We also note from the papers that the respondent was given personal hearing as requested by him and he was given the opportunity to respond to the allegations against him. It appears that the Appellate Tribunal shifted the burden on to the appellant to prove that the respondent was given the opportunity to cross-examine those witnesses whose evidence led to his finding of guilt. When the delinquent employee alleges any defect in the proceeding then it is his burden to prove such allegation. In the face of admission that some of the P.Ws were cross-examined, we cannot accept that the respondent did not get the opportunity to cross-examine the other P.Ws. The respondent was compulsorily retired, which means that he will get all his employment benefits up to the date of the order of his retirement. We find that the decision of the Appellate Tribunal is not sustainable. Accordingly, the appeal is allowed, without, however, any order as to costs. The impugned order of the Administrative Appellate Tribunal is set aside. The order of the Administrative Tribunal is restored. .....Government of Bangladesh =VS= Abdul Isa Md. Nizamul Islam, (Civil), 2018 (2) [5 LM (AD) 70]

The Administrative Tribunals Act, 1980

Section 4(2), 6

Limitation–

The finding of the Administrative Tribunal in respect of limitation in filing the cases is wrong and contrary to the provision of the 2nd proviso to section 4(2) of the Act. The respondents were dismissed from service following the procedures as contained in Government Servants (Discipline and Appeal) Rules, 1985 and as such the Administrative Appellate Tribunal erred in law in dismissing the appeals, which, however, did not consider the question of limitation at all. We find substance in all the appeals. Accordingly, these appeals are allowed and impugned decision made by the Administrative Appellate Tribunal affirming the decision of the Administrative Tribunal is set aside. .....Ministry of Finance =VS= Md. Mominur Rahman, (Civil), 2018 (2) [5 LM (AD) 335]

The Administrative Tribunals Act, 1980 read with

The Constitution of Bangladesh

Article 102(1)

Terms and conditions of the service under Article 102(1) of the Constitution is not maintainable–

This Division has already settled that except challenging the vires of law or alleging violation of fundamental rights, judicial review of a decision of the authority relating to the terms and conditions of the service under Article 102(1) of the Constitution is not maintainable.

The writ-petitioner-respondents have come to a wrong forum and they may still approach appellants, that is, the bank authority by filing departmental appeal to get redress of their grievances in respect of gradation list. If they fail to get proper redress from the appellants, the writ-petitioner-respondents will be at liberty to go to the Administrative Tribunal, which can decide any question relating to the terms and conditions of the service of the writ-petitioner-respondents including the question of malafide in preparation of the gradation list.

This appeal is allowed with the observation made in the body of the judgment that the writ-petitioner-respondents are at liberty to go to the Administrative Tribunal to vindicate their grievances. The impugned judgment delivered by the High Court Division is set aside. .....Bangladesh Krishi Bank =VS= Arun Chandra Banik, (Civil), 2018 (2) [5 LM (AD) 344]

The Administrative Tribunals Act, 1980

Promotion is not a matter of right–

It is clear that the petitioner took a chance of comparing himself with respondents No. 5 and 6 and as they have been given promotion with retrospective effect he should also be given the same, treating him at per with them and as such he should not have been deprived, as he has been, according to him, being of equal status. But the case is quite different. The petitioner being not in service and having not raised any such question any time during his tenure in the service, before his retirement, he cannot, under any circumstances, equate himself with respondents No. 5 and 6 and as such he cannot claim promotion and benefit after two and half years of his retirement on receipt of the full pension benefits without any objection on the basis of equating him with the said two respondents. His case can never be considered to be at per or of equal status with respondents No. 5 and 6. We are of the view that the Administrative Appellate Tribunal correctly appreciated the law and considered the facts of the case and came to a correct conclusion for which it is difficult to find any legal infirmity/flaw in the same and as such there is nothing to interfere with. This civil petition for leave to appeal is dismissed without any order as to cost. .....Mohammad Shafi Ullah =VS= Ministry of Disaster Management & Relief, (Civil), 2018 (2) [5 LM (AD) 148]

The Arbitration and Conciliation Act, 1996

Section 34 read with section 5

Award of Arbitrator– Legislature restricted the role of courts in case where matter is subject to the arbitration–

It is a settled law that the process of interpretation is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. On a perusal of the said two paragraphs of the impugned judgment, we fail to understand that on what parameters the High Court has interpreted Clause 19 in light of Clause 25 of the Contract. Both the clauses stand on different footing. Clause 19 deals, inter alia, with the matter of wages whereas Clause 25 deals with the matter of Octroi Sales Tax and other Duties. Such interpretation adopted by the High Court is against the cardinal principle of law which says that the terms of the contract shall be construed by the courts after having regard to the intention of the parties. Courts ought not to take any hypothetical view as it may cause prejudice to either of the parties. We are of the considered view that the High Court erred in law. Accordingly, we are inclined to allow these appeals and set aside the decision of the courts below as also the Award. Parties to bear their own cost. .....Union of India =VS= M/s. Varindera Constructions Ltd., (Civil), 2018 (2) [5 LM (SC) 37]

The Arbitration and Conciliation Act, 1996

Section 11 & 12

Appointing of Arbitration–

It is a cardinal principle of the Arbitration and Conciliation Act that the parties are free to decide the number of arbitrators, provided, it is an odd number, as well as the procedure for appointing them. However, if the parties are not able to agree on the said procedure, or constitute the Arbitral Tribunal to their mutual satisfaction, either of the party has an option to route to an appropriate remedy under Section 11 of the Act, which provides detailed machinery for appointment of Arbitrator through judicial intervention. Justice Amitava Roy, a former Judge of this Court, is appointed as the sole Arbitrator to adjudicate the disputes between the parties on such fees he may fix. Nevertheless to say, the said appointment is subject to the necessary disclosure being made under Section 12 of the Act and the Arbitrator not being ineligible under Section 12(5) of the Act. The petitions as well as interlocutory application, if any, are disposed of accordingly. .....IBI Consultancy India Private Limited =VS= DSC Ltd., (Civil), 2018 (2) [5 LM (SC) 41]

The Artha Rin Adalat Ain (VIII of 2003)

Section 57

It is true that no Court can be regarded as powerless to recall an order in an under trial case pending before it if it is convinced that the order is wangled through fraud or misrepresentation but pre-condition is that such proceeding must be pending before it. The Court must have jurisdiction over the proceeding before it can exercise any inherent power. The Adalat was not justified in resorting its power under section 57 of the Ain to reopen the decree after disposing of the suit. The instant Artha Rin Suit has been disposed of exparte against the defendant Nos. 2(a) to (d) and on contest against the rest. Inherent power of the Adalat in section 57 of the Ain should be exercised subject to the Ain that if the Ain does not contain specific provision which would meet the necessities of the provision should be followed and inherent jurisdiction should not be invoked. .....Parvin Akter =VS= Eastern Bank Ltd., (Civil), 2018 (2) [5 LM (AD) 162]

Appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court–

We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. Moreover, we find that the conclusion of the trial Court is not consistent with the findings and observations made by it. Accordingly, the impugned judgement and order of the High Court Division is not sustainable. The appeal is allowed. .....Fatema Khatun(Mst.) =VS= Towhida Begum(Mst.), (Civil), 2018 (2) [5 LM (AD) 26]

The Appellate Court being last Court of fact–

The Appellate Court being last Court of fact considered the evidence on record, both oral and documentary and found that the heba deeds in question were not executed by the donor. We find nothing wrong with the Appellate Court as well as the High Court Division in relying upon exhibit-‘2’ in coming as to the genuineness of the heba deeds. When the plaintiff categorically challenged that Md. Motaleb Miah was a literate person and there was no reason on his part to execute and register the heba deeds in question by putting the L.T.I., the onus was squarely upon the defendants to prove their genuineness by examining at least the witness who took his L.T.I in the deed. .....Ash Mohammad =VS= Most Imamun Nessa, (Civil), 2018 (2) [5 LM (AD) 54]

Amendment of the plaint–

The proposed amendment would not change the nature and character of the suit and it was not a new fact since it was earlier stated in the plaint that Tk.95,000/- was given in cash and Tk.3,00,000/- was paid by cheque. In the amendment petition, only the name of the signatory of the cheque was inserted. So, neither character of the suit is being changed nor any new fact has been incorporated in the amendment petition, and as such the appeal is liable to be dismissed. In the instant case the facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in our view does not change the nature and character of the suit. We do not find any illegality or infirmity in the impugned judgement. Accordingly, the appeal is dismissed, without however, any order as to costs. .....Sree Nilu Banerjee =VS= Swapan Sarker, (Civil), 2018 (2) [5 LM (AD) 127]

Absorb the writ-petitioners in the regular setup and they will not get continuity in their service–

To absorb the writ-petitioners under the revenue budget with continuity of service, arrears and other benefits and obtained Rules Nisi. We are of the view that the direction of the High Court Division to absorb the writ-petitioners with continuity of their service was not proper. Therefore, we are inclined to direct the leave-petitioner to absorb/regularize the writ-petitioners in the regular setup of BRDB in the permanent posts as and when vacancy would arise subject to the condition that they are not otherwise disqualified. The service of the writ-petitioners will be governed as per the Service Rules of BRDB and they will not get continuity in their service when they will be absorbed in the revenue setup of BRDB. .....Bangladesh Rural Development Board =VS= Md. Saiful Islam, (Civil), 2018 (2) [5 LM (AD) 178]

B

The Bangladesh Waqfs Ordinance 1962

Section 56 read with

The Bengal Waqf Act, 1934

Sections 53 & 70(1)(4)

The property, in question, is waqf property and the same was not transferred by its actual owner, by the impugned deeds, title of the disputed waqf property had not been vested to the recipients of those deeds and those are mere papers transaction. .....Hafizuddin(Md.) =VS= Mozaffor Mridha, (Civil), 2018 (2) [5 LM (AD) 105]

Blasphemy law

Blasphemy offence– Acquitted of the charge by extending the benefit of doubt–

Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous.

The prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and she is acquitted of the charge by extending the benefit of doubt to her. She shall be released from the jail forthwith if not required to be detained in connection with any other case. (Asif Saeed Khan Khosa, J) .....Asia Bibi(Mst.) =VS= The State, etc, (Civil), 2018 (2) [5 LM (SC) 140]

Basic Principles of Waqf–

According to Imam Abu Hanifa the meaning of waqf is the detention of a specific thing in the ownership of waqf and the devoting of its profit or products “in charity of poors or other good objects”. Imam Abu Yusuf said, “Waqf signifies the extinction of the waqif’s ownership in the thing dedicated and detention of all the thing in the implied ownership of the Almighty Allah, in such a manner that its profits may revert to or be applied ‘for the benefit of Mankind.’ Three basic principles governed the waqf: the trust was required to be irrevocable, perpetual, and inalienable. Once property was declared waqf by its owner, the trust thereby created was irrevocable. It means (i) inalienable lands used for charitable purposes and (ii) pious endowments. .....Hafizuddin(Md.) =VS= Mozaffor Mridha, (Civil), 2018 (2) [5 LM (AD) 105]

C

The Chittagong Hill Tracts Regulation 1900 (Regulation 1 of 1900)

The Session Judge has been given the power to take cognizance of any offence as a court of original jurisdiction. This power has been given to a Magistrate in respect of other Session Divisions of the country. The three districts have been constituted three separates civil jurisdictions under three Districts Judges and a Joint District Judge has been given power to exercise a court of original jurisdiction under section 8(4). While exercising such power he shall follow the existing laws, customs and usages of the districts concerned, except the cases arising out of Family Laws and other customary laws of the tribes of the districts of Rangamati, Khagrachori and Bandarban respectively, which shall be triable by the Mauza headmen and Circle Chiefs. Against an order, judgment or decree passed by the Joint District, the District Judge have been given the appellate power.

The High Court Division has been given all appellate powers under the Code of Criminal Procedure under section 9, but in respect of civil disputes no such power has been given upon the High Court Division. These provisions are sufficient to come to the conclusion that the government still recognize the customs and usages of the tribal people of the region while adjudicating civil disputes.

The High Court Division has totally ignored these aspects of the matter. The appeal is therefore, allowed. The judgment of the High Court Division is set aside, so far as it relates to the observation that Regulation 1 of 1900 is a dead law. .....Ministry of Finance =VS= Rangamati Food Products Ltd., (Civil), 2018 (2) [5 LM (AD) 302]

The Code of Civil Procedure, 1908

Section 115(1)

Wasiyatnama–

The High Court Division cannot re-assess and sift the evidence and substitute the finding of the Appellate Court by its own. Unfortunately, the High Court Division in complete denial of the said legal principle itself embarked upon to assess the evidence and gave its own finding that there was no wasiyatnama by Kulsum Bibi. Therefore, the right of the plaintiff in the suit property as the daughter of Yakub Ali was not lost and she was entitled to get her share thereto. The High Court Division did not at all say why the finding of fact arrived by the Appellate Court, the last Court of fact, affirming those of the trial Court that Kulsum Bibi bequeathed her property by the wasiyatnama and the same was acted upon by Yakub Ali, her only surviving son, and the beneficiaries of the wasiyatnama are in possession of the respective land pursuant to the dictate of the wasiyatnama was wrong. Therefore, the impugned judgment and order cannot be sustained and that must be set aside. .....Noor Mohammad Howlader (Md.) =VS= Kulsum Begum (Mst.), (Civil), 2018 (2) [5 LM (AD) 363]

The Code of Civil Procedure, 1908

Order 7 rule 11

A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata–

A plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise. Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case. The decision arrived at does not call for interference by this Division and, accordingly, the civil petition for leave to appeal is dismissed. .....Sumon Paul =VS= Binode Kumar Mali, (Civil), 2018 (2) [5 LM (AD) 139]

The Code of Civil Procedure, 1908

Order 7 Rule 11

The plaintiff has no cause of action to file the suit. The High Court Division rightly held that the plaintiff had no cause of action for the suit and accordingly rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure for want of cause of action. We find no cogent reason to interfere with the same. The appeal is dismissed. .....M/S. Samrat Shoes and Leather  Manufacturing Industries Ltd. =VS= Md. Zahirul Islam, (Civil), 2018 (2) [5 LM (AD) 426]

The Code of Civil Procedure, 1908

Order 37 Rule 2

Summary suit– High Court Division should not have entertained the dispute in question–

In the writ petition the respondent No.1 suppressed the fact that he already filed Summary Suit No.6 of 1996 in the Court of the District Judge Dhaka under the Provisions of Order 37 Rule 2 of the Code of Civil Procedure which was very much pending at the time of filing of the writ petition. This suppression disentitled the respondent No.1 to claim any relief in writ jurisdiction as there could be conflicting decisions. Further the High Court Division should not have entertained the dispute in question, not to speak of disposing the writ petition in such an hasty manner. The order passed by the High Court Division is not an speaking order. So the judgment and order of the High Court Division cannot be sustained. .....Agrani Bank =VS= Ansarul Hoque, (Civil), 2018 (2) [5 LM (AD) 414]

The Code of Civil Procedure, 1908

Order 41 Rule 27

Additional evidence–

In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals. The appeals thus fail and are accordingly dismissed. .....Sri Y.P. Sudhanva Reddy =VS= Karnataka Milk Federation, (Civil), 2018 (2) [5 LM (SC) 44]

The Code of Civil Procedure, 1908

Order 41 Rule 31

It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahamedullah, the purchaser of Lot No.10, no case was filed against Ahamedullah and further no cases were also filed against the purchasers of the contiguous plots. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record made the Rule absolute. The learned counsel for the appellant also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference. .....Divisional Forest Officer, Cox’s Bazar  =VS= Abdur Rahim Chowdhury, (Civil), 2018 (2) [5 LM (AD) 379]

The Companies Act, 1994

Section 81(2) and 85(3)

A company is a juristic person comprised of its members/share holders, governed by its own Article of Association through the Board of Directors selected/appointed by the Members for taking decisions in the formal meeting in accordance with the Article of Association as well as in accordance with law. So the members/shareholders of a company, whose combined effort,  expressed through the Board of Directors is the key stone in running the company. It is the shareholder who can take any decision in respect of management of company through  different types of meetings. The appellant company being one of the oldest company of the country, incorporated on 18.11.1959 and being run smoothly since then upon holding all its meetings in accordance with law. Thus it is held that the supreme power being in the hands of the shareholders they can take any decision in respect of running of the company in its meetings and when upon holding the 33rd annual general meeting and all subsequent meetings thereafter, the company took several resolutions approved by all subsequent meetings and the copies of those resolutions upto 38th meeting having already been submitted with the Registrar of Joint Stock Companies now no shareholder can have any grievance against any of such resolutions. .....Mirpur Ceramic Works Limited =VS= Yousuf Ariff Tabani, (Civil), 2018 (2) [5 LM (AD) 77]

The Constitution of Bangladesh, 1972

Article 102

This writ petition was full of disputed facts and the prayer made in it cannot be granted in a proceeding under Article 102 of the Constitution as factual disputes cannot be decided in this proceeding. The writ of mandamus cannot be demanded ex-debito justifiae but it issues only in the discretion of the court. It is a high prerogative writ and is to ampliate justice not to give effect of a decree which is apparently fraudulent and collusive in nature. It is a malafide attempt on behalf of writ petitioner Monowara Begum, wife of an Advocate to grab the property of the Republic. She came in this Court with unclean hands. The High Court Division did not at all enter into or consider the aforesaid disputed question of facts, and law related thereto and, thereby, erroneously directed the appellants to handover the possession of the case land. The judgment and order passed by the High Court Division is hereby set aside. .....Bangladesh Railway =VS= Most. Monowara Begum, (Civil), 2018 (2) [5 LM (AD) 13]

The Constitution of Bangladesh, 1972

Article 102(2)

Seniority–

The writ petitioners were appointed against temporary posts and the added respondents got their appointment against permanent posts. Seniority amongst officers appointed by the same process at different times, the date of entering service is, unless there is some rule relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise. Learned Attorney-General failed to show any such law which provides that the persons appointed against permanent posts. We do not find any wrong in the judgment and order of the High Court Division. .....Government of Bangladesh =VS= Md Sohel Rana, (Civil), 2018 (2) [5 LM (AD) 182]

The Constitution of Bangladesh, 1972

Article 102 read with

The Code of Civil Procedure, 1908

Order 21 Rule 90

Writ petition is not maintainable–

The present appellant did not challenge the judgment and decree passed by the Artha Rin Adalat nor he filed any case under Order 21 Rule 90 of the Code of Civil Procedure in the execution case challenging the auction sale. In such view of the matter the very writ petition was not maintainable. .....Mohd. Junayed Quader =VS= Artha Rin Adalat, Dhaka, (Civil), 2018 (2) [5 LM (AD) 418]

The Constitution of Bangladesh, 1972

Article 102

The High Court Division could not and cannot exercise any power either original, appellate and other jurisdiction and powers unless such powers are vested on it either by any provision of the Constitution or law. In other words, the High Court Division cannot exercise a jurisdiction unless it is clothed with such power either by any provision of the Constitution or by any other law. (Md. Abdul Wahhab Miah, J)......Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461]

The Constitution of Bangladesh, 1972

Article 102 (1) (2)

At the risk of repetition, I say that in the Rule issuing order, the District Magistrate and Deputy Commissioner was not, at all, asked to 70 show cause as to why fatwas including the instant one should not be declared unauthorized and illegal and thus he was not given any chance of hearing on the subject or the point or the issue. It may be stated that the Rule was issued only upon the District Magistrate and Deputy Commissioner, Naogaon. I failed to understand how the High Court Division could merrily exercise its jurisdiction under article 102 and hold all the fatwas including the instant one as unauthorized and illegal without giving the sole respondent any chance of hearing. It was clearly a violation of the principles of natural justice. I could not lay my hands on any decision either under writ jurisdiction or under the civil jurisdiction by this Court or any other superior Court approving such kind of exercise of power by the High Court Division. I am afraid that if this kind of exercise of power by the High Court Division is approved or sanctioned, then the High Court Division shall be on the spree of disposing of the Rule, in exercising jurisdiction under article 102, giving relief to a party at its own whims and sweet will beyond the pleadings and the prayer and without caring the right of hearing of the other side. And in the process, it will give rise to judicial anarchy. It also needs to be mentioned that the language used in the Rule issuing order “and/or pass such other or further order or orders as this Court may deem fit and proper”, in no way, gives a Court jurisdiction to give relief to a party or to hold something or to make any declaration or to make observations and recommendations beyond the Rule issuing order; such a language gives jurisdiction to a Court or authorises a Court to give only the ancillary or consequential relief that may follow from the Rule issuing order.  Therefore, I am constrained to hold that the High Court Division exceeded its jurisdiction as well in making the Rule absolute in the terms as indicated hereinbefore. (Md. Abdul Wahhab Miah, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461]

The Constitution of Bangladesh, 1972

Article 102 (2)

Whether the High Court Division can issue suo motu rule–

Where the fundamental right of a citizen is infringed, the High Court Division can issue suo motu rule provided the infringement of right is amenable to the writ jurisdiction and is of great public importance. In this context, a news paper report, post-card, written material may be treated as an application in order to overcome the obstacle of application. But before issuance of suo motu rule, the High Court Division must record its satisfaction in clear terms about exercise of such power. The High Court Division shall exercise such power sparingly. (Syed Mahmud Hossain, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461]

The Constitution of Bangladesh, 1972

Article 104

We are of the view that this would be an appropriate case where we should exercise our authority under article 104 of the Constitution for doing complete justice in the matter before us. The evidence and materials on record do not disclose the real reason behind the gift by the wife to her husband. The fact remains that the property was purchased jointly and was in their joint possession and enjoyment in spite of the gift. The third party has purchased the property for valuable consideration. There was no evidence that the defendant mutated the record of rights to his name after the acquisition of legal title to the property by virtue of the gift. The third party purchaser would not have been aware of the transfer of title. The defendant-appellant shall pay a sum of Tk.2,50,000/- to plaintiff-respondent No.1 within 3 months from the date of receipt of the judgement, failing which the appeal shall stand dismissed. .....Abul Hashem Sarker(Md.) =VS= Arjuman Akhter(Mst.), (Civil), 2018 (2) [5 LM (AD) 31]

The Constitution of Bangladesh, 1972

Article 104

Legitimate expectation–

The decision of this Division in Civil Appeal Nos.60-65 of 1994 that equitable dispensation was meted out in exercise of article 104 of the Constitution on the consideration that the appellant-government would gain experienced hands and the writ-petitioners would gain fulfilment of a legitimate expectation. .....Ministry of Establishment =VS= Md. Abul Hashem, (Civil), 2018 (2) [5 LM (AD) 297]

The Constitution of Bangladesh, 1972

Article 105

C. P. No.3472 of 2015 is set aside. The High Court Division is directed to dispose of the Rule–

This civil review petition is disposed of and the order dated 02.06.2016 passed in Civil Petition for Leave to Appeal No.3472 of 2015 is set aside. The orders dated 01.07.2014 and 27.02.2012 of the High Court Division are also set aside. The order dated 10.09.2007 discharging the Rule is vacated and the Rule is restored to its original file and number. The High Court Division is directed to dispose of the Rule as expeditiously as possible. .....Deputy Commissioner, Sylhet =VS= Md. Suruj Ali, (Civil), 2018 (2) [5 LM (AD) 300]

The Constitution of Bangladesh, 1972

Article 105

Review–

This Division consistently held that review by no means is a re-hearing of the appeal. We are, therefore, of the view that in all these civil review petitions the grounds urged by the petitioners are nothing but the grounds taken into consideration and repelled in the leave Petitions.  It is therefore not permissible to embark upon a reiteration of the same contentions as were advanced at the time of hearing of the leave petitions. We are of the opinion that there is no error apparent on the face of the record to interfere in the impugned judgment and order passed by this Division in the above leave petitions. There is no legal ground in these civil review petitions for review of the impugned judgment and order passed by this Division in the civil petitions for leave to appeal. These civil review petitions are dismissed. .....Abdul Mazid Sarker(Md.) =VS= Bangladesh, (Civil), 2018 (2) [5 LM (AD) 367]

The Constitution of Bangladesh, 1972

Article 133

Rule making power has been given upon the President–

If the Rules contravene any of the provisions of the constitution, the Rules shall be void. Article 133 clearly empowers the Parliament to promulgate law regarding conditions of service but the proviso is a transitional provisions empowering the President to make Rules which has the force of law relating to the matters covered in article 133 until appropriate legislature on the subject is made. The President has power to promulgate Rules and until the powers conferred under article 133 are exercised, the President can amend the Rules. .....Mahfuza Akhter Shimul =VS= Delwar Hossain, (Civil), 2018 (2) [5 LM (AD) 120]

The Constitution of India

Article 40

Article 40 of the Constitution which enshrines one of the Directive Principles of State Policy lays down that the State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of selfgovernment. In the light of the experience in the last forty years and in view of the shortcomings which have been observed, it is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them. .....Kiran Pal Singh =VS= The State of Uttar Pradesh, (Civil), 2018 (2) [5 LM (SC) 203]

The Constitution of India

Article 142

50% back wages–

We find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to 37 workmen while directing their reinstatement in service. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer). Having regard to the facts and circumstances of the case, we consider it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages......Regional Chief Engineer P.H.E.D. =VS= District Secretary, (Civil), 2018 (2) [5 LM (SC) 111]

The Constitution of India

Article 142

Having regard to all facts and circumstances of the case such as period and money spent in litigation by the deceased workman and on his death by his legal representatives coupled with the fact that the workman–Phool Chand has since expired, we consider it just and proper and in the interest of justice to award to the respondents (legal representatives of Late Phool Chand) 50% of the total back wages. ..... Rajasthan State Road Transport Corporation, Jaipur =VS= Phool Chand, (Civil), 2018 (2) [5 LM (SC) 209]

The Contract Act, 1872

Section 62

Possession of the shop–

Our short order directed respondent No. 2 to deposit Rs.1,400,000/- in this Court within a period of sixty days which shall then be paid to respondent No. 1. We have already mentioned in our short order that there shall be no extension in time for any reason whatsoever and failure to deposit the amount within this period shall result in dismissal of this appeal and the respondent No. 1 shall be entitled to retain the possession of the shop in his capacity as tenant of the appellants who are the successor-in-interest of respondent No. 2. Within fifteen days of such deposit, the respondent No. 1 was required to handover vacant peaceful possession of the property to the appellants. If the respondent No. 1 fails to do so, the appellants shall be at liberty to file an application before Executing Court, which shall issue writ of possession without notice and put the appellants in possession of the property......Haji Baz Muhammad Khan =VS= Noor Ali, (Civil), 2018 (2) [5 LM (SC) 173]

The Customs Act, 1969

Section 193C read with

The PSI Order, 1999

Article 8(3), 9

Review–

The High Court Division lost sight of the matter that the order of assessment of the goods under sub-article (3) of article 8 of the PSI Order,1999 is amenable to review as contained in article 9 of the PSI Order. Without exhausting the forum of review, the respondent of each of the appeals filed the writ petitions before the High Court Division. Since the respondents failed to exhaust the forum of review the writ petitions filed by each of the respondents before the High Court Division were not maintainable. .....Commissioner of Customs=VS=Excelsior Home Appliance Limited, (Civil), 2018 (2) [5 LM (AD) 331]

D

Death certificate issued by Thana Statistical Officer–

The High Court Division, reversed this judgment and decree of the appellate court below basing mainly on the alleged death certificate, the exhibit-2. The High Court Division committed serious wrong and illegality in accepting this death certificate, the exhibit-2 and in decreeing the suit mainly relying on this exhibit-2. We don’t understand how the High Court Division could rely on this exhibit-2, the so-called death certificate issued by Thana Statistical Officer who had no authority to issue such death certificate and who could not tell even before court on what basis he issued this death certificate-the exhibit-2. The impugned judgment of the High Court Division cannot be sustained. .....Mohosin(Md) =VS= Mst. Angura Khatun, (Civil), 2018 (2) [5 LM (AD) 100]

Declaration of title and confirmation of possession–

The High Court Division elaborately discussed the evidence and materials afresh and noted that DW1 in his evidence admitted that during pendency of the suit, the plaintiffs side entered into possession in the disputed plot and erected a pucca dwelling house. Erecting a pucca dwelling house on 1 decimal land was found to be improbable by the trial Court and the High Court Division. In view of the partial admission of possession and also the voter list of 1976, the High Court Division held that the Courts below were justified in holding that the plaintiffs were in possession of the disputed plot. The High Court Division also observed that one bigha land normally comprises 33 decimals. The onus lay upon the defendants to show that three bighas land equal to 178 decimals, which they did not prove. There is a road separating plot Nos.1135 and 1137 from the suit plot No.1136. In our view it has been rightly held that the compact 3 bighas plot does not extend to the other side of the road onto the suit plot. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Mohammad Rois Uddin =VS= Sree Anil Kumar Mondol, (Civil), 2018 (2) [5 LM (AD) 145]

Declaration Suit–

The execution of the plaintiff’s deed of gift by the admitted 4 owners of the suit land is admitted by the contesting defendants. The contesting defendants case is that since the four owners of the suit land executed the transfer deeds in their favour earlier though those are subsequently registered, the plaintiff’s deed executed later by the same vendors was invalid. But it appears that to substantiate this case the contesting defendants could not adduce any evidence at all to prove the genuineness of their alleged deeds. None of the scribe, attesting witnesses or identifiers of the alleged deeds of the defendants have been examined before Court by the contesting defendants. The Courts below, therefore, rightly found that the contesting defendants could not prove the genuineness of their alleged deeds at all. The High Court Division rightly made observation to the effect also that since the defendants failed to prove the genuineness of their deeds the plaintiff did not require to make a prayer for declaration of these deeds as false, forged and invalid etc. .....Sreenath Sen =VS= Laxmi Rani Boiragi, (Civil), 2018 (2) [5 LM (AD) 159]

Doctrine of legitimate expectation implement of contract–

The doctrine of legitimate expectation may be played into service in many cases particularly in contractual sphere while canvassing the implications underlying the administrative law. Such expectation can be claimed if the decision of the authority deprives a person the benefit or advantage which he had enjoyed and which he can legitimately expect to continue until he is intimated some rational grounds for withdrawing it and that he has been given an opportunity or that he has received an assurance that it will not withdraw the benefit without giving an opportunity of advancing reasons. Legitimate expectation gives the claimant sufficient locusstandi for judicial review and it operates in the domain of public law and in appropriate cases give rise to substantive as well as procedural rights. There is no neglect and laches on the part of the writ petitioner to implement the agreement. It has also spent huge amount of money after taking over possession towards the improvement of the Mills. Therefore, the writ petitioner’s expectation of getting a registered instrument upon payment of the balance consideration cannot be taken away by the authority unilaterally. The High Court Division, in the premises, acted no illegality in making the rule absolute. .....Government of Bangladesh =VS= Refat Garments Limited, (Civil), 2018 (2) [5 LM (AD) 173]

E

Emergency Requisition of Property Act, 1948

Section 5(7)

Final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, 1948 in respect of the suit premises and as such the right, title and interest if any of the previous owner had extinguished and the property absolutely vested in the Government–

Gazette Notification dated 18th March, 1993 of the Ministry of Land in respect of the suit premises (at page 110 of the paper book) and submitted that final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, 1948 in respect of the suit premises has already been made on 18th March, 1993 and as such the right, title and interest if any of the previous owner had extinguished and the property absolutely vested in the Government.  Facts and circumstances of the case and in view of the fact that final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, 1948 had already been made in 1993. In our view the judgment of the High Court Division requires interference by us. The appeal is allowed without any order as to costs. .....Ministry of Agricultural =VS= Rabia Khatoon, (Civil), 2018 (2) [5 LM (AD) 377]                                                 

Emergency Requisition of Property Act, 1948

Section 14A, 83

Original owners prior to acquisition received compensation–

The suit plots having been initially requisitioned and put the requiring body into possession and subsequently the same was acquired in L.A. case No.174/60-61 and the plaintiffs’ predecessors, the original owners prior to acquisition received compensation on 03.01.1962 and thereafter handed over possession on 23.09.1962 to the requiring body, namely, Narua Bahumukhi Samabaya Samity Limited on which defendants constructed their godown, the High Court Division acted illegally in not holding that the suit is barred under Section 83 of Emergency Requisition of Property Act. Furthermore, the Suit land having been admittedly recorded in the name of the requiring body who has been in possession since 25.09.1962 and the records of right having been corrected in their names have the presumption of continuity in possession, the Court below erred in law in not decreeing the suit of permanent injunction and ought to have held that the suit land, the possession having been handed over the Samabaya Bank on 23.09.1962 upon taking delivery of the same from the plaintiff predecessors lawfully, the suit is barred under Section 14A of the Emergency Requisition of Property Act, 1948. .....AKM Shamsudoha =VS= Md. Yusuf Ali Mondal, (Civil), 2018 (2) [5 LM (AD) 400]

The Establishment of Medical College Regulations, 1999

Regulation 8 (3) (1) (a)

This Court in Kalinga (supra) has held that medical education must be taken very seriously and when an expert body certifies that the facilities in a medical College are inadequate, it is not for the Courts to interfere with the assessment, except for very cogent jurisdictional reasons such as mala fides of the inspection team, ex facie perversity in the inspection, jurisdictional error on the part of the M.C.I., etc. The submission relating to the cyclone being a reason for the number of patients being less is not acceptable. We are in agreement with the submission made on behalf of the Appellant that the Resident Doctors are required to be in the hospital at all points of time. In view of the large scale deficiencies found in the inspection report dated 25.09.2017 and 26.09.2017 and in view of Regulation 8 (3) (1) (a), the Respondent No.1 and 2 are not entitled to claim another inspection. .....Medical Council of India =VS= Vedantaa Institute of Academic Excellence Pvt. Ltd., (Civil), 2018 (2) [5 LM (SC) 68]

The Evidence Act, 1872

Section 90

30 years old documents–

The plaintiffs have been successful in proving their genealogy of title and possession in the suit land and since the defendants failed to challenge the documents relied upon by the plaintiffs and also failed to prove their case of title and possession, it can clearly be held that the defendants have no title and possession in the suit land. On the other hand the plaintiffs could prove the title of Yeasin Hazi, the C.S. recorded tenant and thereafter devolution of title and possession upon his daughter Duburunnessa who in her turn transferred the same to Khodeza Begum by two  registered documents in 1955 and 1956 which are more than 30 years old documents and relying on such registered documents Khodeza Begum’s name being recorded in the S.A. record and thereafter Zumuruddin, the predecessor of the plaintiffs having purchased the same got his name mutated in place of Khodeza Begum in the office of the Government, and after his death his heirs, the plaintiffs having got their names mutated, the title and possession of the plaintiffs are found to be proved. .....Bangladesh Railway =VS= Jashimuddin, (Civil), 2018 (2) [5 LM (AD) 58]

The Evidence Act, 1872

Section 114(e)

It appears that in terms of the provisions of section 114(e) of the Evidence Act, there is a preemption that the above compromise decree was duly passed and the writ of delivery possession was duly executed and there is nothing on record to show otherwise. Since the plaintiff could not controvert the above presumption by producing materials before the court, the plea that the above order sheet and writ of delivery of possession were merely paper transaction can not stand. Our anxious consideration to the facts and circumstances and the evidence on record we find that the High Court Division considered the matter in its proper perspective and we find no irregularity or illegality in the decision of the High Court Division. Accordingly the appeal is dismissed without any order as to costs. .....Shah Alam(Md.) =VS= Islam(Md.), (Civil), 2018 (2) [5 LM (AD) 407]

F

Family Court

The parents fight their children’s custody cases–

The children shall be brought by their father to the office of the Department of Social Services, Chattogram every Friday and Saturday and he shall leave them there in the custody of Md. Shahidul Islam, Deputy Director, Department of Social Services, Chattogram. Ms. Mahjareen Binta Gaffar, Clinical Psychologist shall visit the children for the purpose of continuing with their counselling, which shall be for a period of two hours every Friday and Saturday afternoon at 3:00 pm. Rumana Foiz, the mother of the children shall have the right to visit the children at the office of the Department of Social Services, Chattogram during the said period. We make it clear that the father of the children will not be present in or near the office of the Department of Social Services at that time when the children are in that office. .....Mainul Islam Chowdhury =VS= Rumana Foiz, (Civil), 2018 (2) [5 LM (AD) 358]

G

Genuineness of the title deed–

The alleged title deed of the plaintiffs shows that the same has been prepared subsequently on some old stamp papers by using new ink and we are satisfied that this deed was not executed and registered in the year 1945. Now it appears to us that since there was no existence of any title deed during trial, the appellants failed to produce the same before the trial Court although it bears a mark of exhibit filed in Title Suit No.37 of 1993. Already we have found that the said Title Suit No.37 of 1993 was decreed ex-parte. Thus, the High Court Division being the last Court of fact doubted the genuineness of the said title deed of 1945. .....Halima Khatun(Mrs.) =VS= Ministry of Health, (Civil), 2018 (2) [5 LM (AD) 292]

H

The Hindu Marriage Act, 1954

Section 13

Dissolution of marriage on the grounds of desertion and cruelty–

We allow the appeal, set aside the impugned order of the High Court and the order of the Family Court insofar as it relates to fixing of Rs.15,00,000/- towards payment of permanent alimony to the respondent(wife) by the appellant(husband) and remand the case to the Family Court to decide the quantum of payment of permanent alimony afresh in accordance with law keeping in view our observations made supra. The appellant(husband) will continue to pay monthly maintenance amount, which was fixed by the Family Court, to the respondent regularly. .....Jalendra Padhiary =VS= Pragati Chhotray, (Civil), 2018 (2) [5 LM (SC) 13]

The Hindu Marriage Act, 1955

Section 13(1)(ia)

The unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act. .....Narendra =VS= K. Meena, (Civil), 2018 (2) [5 LM (SC) 135]

The Hindu Marriage (Amendment) Act, 1976

Section-15

A marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage. The decision in Lila Gupta case thus covers the present case on law. We are satisfied that the appellant’s marriage was not subsisting when he married again. He had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution. (S.A. Bobde, J). .....Anurag Mittal =VS= Shaily Mishra Mittal, (Civil), 2018 (2) [5 LM (SC) 5]

The Hindu Marriage Act, 1955

Section 28(1)

Separation of the husband & wife according to Hindu Marriage Act, 1955–

The behaviour of the Respondent wife appears to be terrifying and horrible. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife.

Quash and set aside the impugned judgment delivered by the High Court. The decree of divorce dated 17th November, 2001 passed by the Principal Judge, Family Court, Bangalore in M.C. No.603 of 1995 is hereby restored. .....Narendra =VS= K. Meena, (Civil), 2018 (2) [5 LM (SC) 135]

The Hindu Succession Act, 1956

Section 14(1)

Section 14(1) does not recognize the pre-existing right of a Hindu male–

There is nothing on record to show that the property in the hands of Chimmli came in lieu of maintenance or on account of arrears of maintenance. The property in her hands came as a result of she being a successor of Sheo Lal. Sheo Lal did not possess any property. He had only life interest in the property which did not enlarge into a full right because Section 14(1) does not recognize the pre-existing right of a Hindu male. Smt. Chimmli could not have acquired a better right than her husband had in the property in dispute. Right of Sheo Lal, as also Smt. Chimmli, flows from the decree. Therefore, her right would not mature into full-fledged ownership by virtue of Section 14(1). She has acquired the right by virtue of the compromise decree for the first time. Therefore, Section 14(2) would apply to the instant case.The appeal fails and it is accordingly dismissed. .....Basanti Devi =VS= Rati Ram, (Civil), 2018 (2) [5 LM (SC) 1]

High Court Division exercising revisional jurisdiction is very limited–

Where the trial Court and the appellate Court come to a decision which is not conflicting, and the finding is concurrent, the function of the High Court Division exercising revisional jurisdiction is very limited. It can only look to see whether there was any misreading or non-consideration of evidence on record or any misconstruction of law. We find that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. We are, therefore, of the view that the trial Court and the appellate Court rightly dismissed the suit for declaration of title. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. .....Jahangir (Md.) =VS= Noor Mohammad, (Civil), 2018 (2) [5 LM (AD) 142]

I

The Income Tax Act, 1961

Section 15C, 80-IA/IB/IC

Exemption Income Tax–

Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not ‘formed by reconstruction of business already in existence’. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Section 80-IC are ‘substantial expansion’. Discussion contained in the said judgment would have no application to the instant case. Issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under Section 80-IA and Section 80-IB was allowed are to be counted for the purpose of giving deduction under Section 80-IC. .....Mahabir Industries =VS= Principal Commissioner of Income Tax, (Civil), 2018 (2) [5 LM (SC) 193]

The Income Tax Act, 1961

Section 133A

Block Assessment–

Any material or evidence found/collected in a Survey which has been simultaneously made at the premises of a connected person can be utilized while making the Block Assessment in respect of an assessee under Section 158BB read with Section 158 BH of the IT Act. The same would fall under the words “and such other materials or information as are available with the Assessing Officer and relatable to such evidence” occurring in Section158 BB of the Act. In the present case, the Assessing Officer was justified in taking the adverse material collected or found during the survey or any other method while making the Block Assessment. All the appeals succeed and are allowed. The impugned orders are set aside and the orders passed by the Assessing Officer making the Block Assessment are restored. However, the parties shall bear their own cost. .....Commissioner of Income Tax =VS= S. Ajit Kumar, (Civil), 2018 (2) [5 LM (SC) 126]

The Income Tax Act, 1961

Section 144A

The order dated 14.08.2000, passed by the Additional Commissioner of Income Tax (Appeals), under Section 144A of the IT Act whereby he, inter-alia, directed the Assessing Officer to take the undisclosed income of the Appellant including from the benami business in the name of two other persons at an aggregate sum of Rs 17 lakhs as against Rs 14 lakhs declared by the Appellant in his block return was passed in contravention of law and is not sustainable in the eyes of law. The High Court was right in passing the judgment and order dated 17.11.2005 and no interference is sought for by this Court. Hence, the appeal is dismissed with no order as to costs. .....Tapan Kumar Dutta =VS= Commissioner of Income Tax, West Bengal, (Civil), 2018 (2) [5 LM (SC) 199]

The Income Tax Act, 1961

Section 147, 148 & 10A

Initiation of the re-assessment proceedings under Section 147 by issuing a notice under Section 148 merely because of the fact that now the Assessing Officer is of the view that the deduction under Section 10A was allowed in excess, was based on nothing but a change of opinion on the same facts and circumstances which were already in his knowledge even during the original assessment proceedings. .....Income Tax Officer =VS= M/s TechSpan India Private Ltd., (Civil), 2018 (2) [5 LM (SC) 118]

The Income Tax Act, 1961

Section 240(b)

The interest accrued to such deposit of money in the bank is liable to be setoff against the public issue expenses–

The High Court was right in holding that the interest accrued to such deposit of money in the bank is liable to be setoff against the public issue expenses that the company has incurred as the interest earned was inextricably linked with requirement of the company to raise share capital and was thus adjustable towards the expenditure involved for the share issue. .....Commissioner of Income Tax =VS= Shree Rama Multi Tech Ltd., (Civil), 2018 (2) [5 LM (SC) 122]

The Income Tax Ordinance

Clause 170 [2nd Schedule (Part I)]

The interest income on the investment made in the National Funds Bonds was exempt from tax under Clause 170 to the Second Schedule to the Part I of the Income Tax Ordinance. The appellant’s counsel failed to point out that there was any restriction under the law that would have disentitled the respondent from claiming exemption on the interest income in case there were loans standing against it......Commissioner of Income Tax =VS= Pak Saudi Fertilizer Ltd, (Civil), 2018 (2) [5 LM (SC) 187]

The Indian Succession Act, 1925

Sections 42 to 48

It is clear from scheme of the Act that when intestate has not left behind any lineal descendant and has only kindred, the nearer kindred excludes the distant kindred. The first defendant being a distant kindred is not entitled to succeed any share in the property since the intestate has left behind her real sister. .....B.C. Singh =VS= J.M. Utarid, (Civil), 2018 (2) [5 LM (SC) 33]

The Industrial Disputes Act, 1947

Section 25F

Worker benefits–

It is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellant. .....Mohd. Ali =VS= State of H.P., (Civil), 2018 (2) [5 LM (SC) 57]

j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑ, Y¡L¡ (j¡dÉ¢jL J EµQ j¡dÉ¢jL Ù¹­ll ®hplL¡l£ ¢nr¡ fË¢aù¡­el Ni¢ZÑw h¢X J jÉ¡­e¢Sw L¢j¢V) fË¢hd¡ej¡m¡, 2009

Regulation 5(1)(2)(3) and 50 read with

The Intermediate and Secondary Education Ordinance, 1961

Sections 3 and 39(2)(vi)

Governing body of non-Government Educational Institutions–

The formation of Special Governing Body one after another cannot be said to be lawful. Therefore, the High Court Division made the Rule absolute in part on the following terms:

1. The provisions of sub-regulations (1) and (2) of regulation 5 and regulation 50 [fË¢hd¡e 5 Hl Ef fË¢hd¡e (1) Hhw (2) Hhw fË¢hd¡e 50] of the j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑ, Y¡L¡ (j¡dÉ¢jL J EµQ j¡dÉ¢jL Ù¹­ll ®hplL¡l£ ¢nr¡ fË¢aù¡­el Ni¢ZÑw h¢X J jÉ¡­e¢Sw L¢j¢V) fË¢hd¡ej¡m¡, 2009 are, hereby, declared to be ultra vires the constitution and also with the parent legislation namely, sections 3 and 39(2)(vi) of the Intermediate and Secondary Education Ordinance, 1961 and hence are of no legal effect and invalid thus the same are struck down from Regulations.

2. In view of the aforesaid declaration, the expression “X~f fË¢hd¡e (2) Hl Ad£e EµQ j¡dÉ¢jL Ù¹­ll ®hplL¡l£ ¢nr¡ fË¢aù¡e hÉa£a AeÉ¡eÉ” occurring in sub-regulation (3) of regulation 5 of the Regulations is also struck down.

3. The declarations at paragraphs 1 and 2 above, shall apply to all Non-Government Educational Institutions of this country to which the Regulations are applicable with immediate effect.

4. Respondent Nos. 1 and 2 are hereby directed to take necessary steps, within 60 days from the date of receiving copy/certified copy of this judgment for issuing necessary directions to all Non-Government Educational Institutions and relevant authorities about the declarations at paragraphs 1, 2 and 3 above  for making necessary amendments in the relevant provision of Regulations which contains reference to the struck-down provisions.

5.The Special Type of Governing Body of Viqarunnisa Noon School and College, Dhaka constituted under Memo No. 37.00.0000.072.34.021.15.696 dated 24.12.2015 and Memo No. ৪৩/ক/স্বী/৮৪/(অংশ-১)/১০০ dated 30.12.2015 issued by respondents No. 1, 2 and 3 for the term of two years effective from the date of the 1st meeting (05.01.2016) of the said Special Type of Governing Body, is, hereby, declared to have been constituted/formed without lawful authority and hence of no legal effect and invalid.

6. Similarly, Special Special Type of Governing Body/Bodies, if so constituted in an Non-Government Educational Institution under the Regulations, is/are also to be treated as constituted/formed without lawful authority and be of no legal effect and invalid.

7. The actions taken and the deeds performed by the said Special Type of Governing Bodies, as of today, being past and closed transactions are hereby condoned.

8. The  respondents, in general and respondents No. 1 and 2, in particular, are, hereby, directed to form an Ad-hoc Committee for Non-Government Educational Institutions including the Viqarunnisa Noon School and College, Dhaka in accordance with the provision of regulation 39 of the Regulations within thirty days from the date of receiving copy/certified copy of this judgment. The respective Ad-hoc Committees shall take necessary steps for formation/constitution of a regular Governing Body of such institutions including Viqarunnisa Noon School and College, Dhaka through election in accordance with the provisions of the Regulations.

9. The Members of Parliament, appointed as Chairman of Governing Body of any Non-Government Educational Institutions in pursuance of regulations 5(1) and (2) of the Regulations are, hereby, also declared to have been appointed without lawful authority and be of no legal effect and invalid.

  1. The actions taken and the deeds performed by such Chairman of any Non-Government Educational Institutions, as of today, under Regulations being passed and closed transactions are,  hereby, condoned.
  2.  The respondents, in general and respondent Nos.1 and 2 in particular, are to give appointment of “Chairman of the Governing Body of such Non-Government Educational Institutions in pursuance of strict and effective compliance with the rest part of regulation 5(3) of the Regulations for carrying out the purpose and object of provisions of the Ordinance within 30 (thirty) days from the date of receiving of the copy/certified copy of the judgment.
    1.  Respondent No. 1 is further directed to take necessary steps for examining the Regulations made in respect of other Boards of Intermediate and Secondary Education Board under the Ordinance, if any provision of such Regulations contain provisions similar to delete/struck down provisions for the above reasons and also for securing uniformity in the educational management.  

The findings, directions and guidelines given by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, all the civil petitions are dismissed. .....Viqurunnisa Noon School & College =VS= M. A. Rahim Rana, (Civil), 2018 (2) [5 LM (AD) 185]

J

The Juvenile Justice System Ordinance, 2000

Section 10 (7) read with

The Constitution of Pakistan

Article 25(3)

The Juvenile Justice System Ordinance, 2000 does not specifically stipulate the period within which trials should be concluded nor the period within which appeals should be decided, however the stated purpose of the Ordinance is to “provide for protection of children” (the title and the preamble of the Ordinance). The delay in the conclusion of a juvenile’s trial before a juvenile court is also a ground for his release on bail as provided in section 10 (7) of the Ordinance. Therefore, considering the provisions of the Ordinance and being mindful that the Constitution envisages “the protection of women and children” (clause (3) of Article 25) it would be appropriate to direct that trial of juveniles be concluded by juvenile courts without delay and appeals against conviction be prioritized and expeditiously decided. Therefore, the Hon’ble Chief Justices of the provinces and of the Islamabad High Court through their respective Registrars should be pleased to issue necessary directions to prioritize the hearing of appeals filed by juvenile convicts and in this regard may be further pleased to direct that appeals by juvenile convicts are so highlighted on the file covers of the appeals. Requisite instructions by the Hon’ble Chief Justices, through their respective Registrars, should also be issued to the juvenile courts within their respective territorial jurisdictions to ensure the expeditious conclusion of trials.  .....Muhammad Adnan =VS= The State, (Civil), 2018 (2) [5 LM (SC) 175]

K

Kolkata Municipal Corporation Act, 1980

Section 231

West Bengal Premises Tenancy Act, 1997

Section 5(8)

Rent is a compendious expression which may include lease money with service charges for water, electricity and other taxes leviable on the tenanted premises

The word “rent” has not been defined in the tenancy law and this Court has taken note of this legal position which arose out of the provisions of the Tenancy Act applicable to West Bengal. Rent is a compendious expression which may include lease money with service charges for water, electricity and other taxes leviable on the tenanted premises.” (underlining is ours) As already seen, in paragraph 45 of the report, extracted above, the provisions of Section 231 of the 1980 Act was also considered and it was held that municipal taxes would be a part of the “rent” payable by the tenant to the landlord. Default on the part of the respondent-tenant is clear and evident. The obligation to pay municipal taxes on the tenant being over and above the obligation to pay the rent by virtue of the provisions of Section 5(8) of the 1997 Act, the High Court could not have imposed on the landlord the requirement of obtaining a formal order of enhancement of rent from the Rent Controller. For the aforesaid reasons, we allow this appeal and set aside the order of the High Court affirming the order of the learned Trial Court. The application filed by the landlord for eviction of the respondent-tenant is allowed. .....M/S Popat & Kotecha Property =VS= Ashim Kumar Dey, (Civil), 2018 (2) [5 LM (SC) 53]

The Kerala Forest Act, 1961

Section 61A

Confiscation of sandalwood oil–

The present case being related to the situation prior to the time of amendment in 2010 was made, the amended provisions do not apply. Hence, the order of confiscation of sandalwood oil is liable to be set aside.In view of the above detailed discussion, we are of the considered view that the High Court erred in upholding the order of confiscation. Accordingly, this appeal is hereby allowed and the order of confiscation is set aside. The parties to bear cost on their own. .....M/s. Standard Essential Oil Industries =VS= Forest Range Officer, (Civil), 2018 (2) [5 LM (SC) 114]

L

The Land Acquisition Act, 1894

Section 4

It is well settled position that all deductions should not cumulatively be exceeded the upper benchmark of 75% and at the same time, it should be kept in mind that no hypothetical view shall be taken in order to calculate the percentage of the development charges. The present acquired land of Firozpur Namak village which is located at some distance from the Nuh Town needs to be developed in proper manner like construction of better and wide roads etc., to make it suitable for the acquisition purposes. The fact that facilities already available such as sewer, electricity etc., seems to be taken into consideration properly while reducing the development charges by the High Court from 60% to 10%. Consideration to the facts and circumstance noticed hereinabove, we are of the considered view that a cut at the rate of 10 % is very reasonable towards development of acquired land as some further development would obviously be required to make it fit for the purpose for which it was acquired. .....Mohammad Yusuf =VS= State of Haryana, (Civil), 2018 (2) [5 LM (SC) 28]

The Limitation Act, 1963

Section 14 read with

The CPC

Order 7 Rule 11

Election petition must be filed within a period of 30 days–

The Haryana Panchayati Raj Act 1994 is a complete code for the presentation of election petitions. The statute has mandated that an election petition must be filed within a period of 30 days of the date of the declaration of results. This period cannot be extended. The provision of Section 14 of the Limitation Act 1963 would clearly stand excluded. The legislature having made a specific provision, any election petition which fails to comply with the statute is liable to be dismissed. The High Court has failed to notice both the binding judgments of this Court and its own precedents on the subject, to which we have referred. The first respondent filed an election petition in the first instance to which there was an objection to maintainability under Order 7 Rule 11 of the CPC. Confronted with the objection under Order 7 Rule 11, the first respondent obviated a decision thereon by withdrawing the election petition. The grant of liberty to file a fresh election petition cannot obviate the bar of limitation. The fresh election petition filed by the first respondent was beyond the statutory period of 30 days and was hence liable to be rejected. Allow the appeal and set aside the impugned order of the High Court. .....Suman Devi =VS= Manisha Devi, (Civil), 2018 (2) [5 LM (SC) 48]

The Limitation Act, 1908

Article 142

The suit is governed by Article 142 of the Limitation Act and as such there has been miscarriage of justice. The High Court Division it appears exceeded its jurisdiction by reversing the concurrent findings of fact arrived at by the Courts below specially the appellate Court which is final Court of fact when there was no misreading and non-reading of the material evidence on record and mis-construction of the documents. There is also legal infirmity in the judgments of the Courts below. We are of the view that the High Court Division was not justified in making the Rule absolute and the same accordingly requires interference by us. The appeal is allowed without any order as to costs. .....Sufia Begum =VS= Md. Tariqul Alam, (Civil), 2018 (2) [5 LM (AD) 428]

Local Government(Union Parishad) Rules, 2010

Rule 90(Gha)

Declaring the result of the election–

The election was suspended albeit for a while. In such a situation, the Presiding Officer was palpably wrong in declaring the result of the election. We find that the Election Commission rightly cancelled the election for that polling centre. In view of the discussion above, we do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Deloar Hossain(Md.) =VS= Election Commission, (Civil), 2018 (2) [5 LM (AD) 169]

¯’vbxq miKvi (BDwbqb cwil`) AvBb, 2009

Chairman election matter–

No complaint was made by the petitioner or anyone else during polling hours and there was delay of seven days in lodging any complaint, we do not find any merit in this petition. We take support from the view expressed in the case of Altaf Hossain vs Abul Kashem and others, 45 DLR (AD)53, where it was observed that where allegation is brought after the declaration of the result then it is always desirable that dispute, if any, should go to the Tribunal for determination. Facts and circumstances discussed above, we do not find any illegality or impropriety in the decision of the High Court Division to discharge the Rule Nisi. The civil petition for leave to appeal is dismissed. .....Syed Shariful Islam =VS= Md. Toufiqul Islam Toufiq, (Civil), 2018 (2) [5 LM (AD) 354]

M

Mahomedan Law by Mulla, 20th Edition (2014)

Article 117

Where a Mahomedan bequeaths less than one-third of his property to a person, such bequest is valid under Mahomedan law–

Mahomedan Law is concerned, a testator may lawfully transfer ⅓ of his property to any person (third party), other than his heirs. Any transfer in excess of ⅓ would not be valid unless the heirs consented after the death of the testator. “A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator.” It would appear, therefore, that the consistent view is that transfer of any quantum of property to an heir requires the consent of the other heirs after the death of the testator. In the case before us the bequest being in favour of heirs of the testator can only be valid if the other heirs consent. In the facts of the instant case there does not appear to be consent by other heirs and, therefore, the deed in question cannot be a valid deed of transfer. .....Noorjahan Begum =VS= Aminul Huq, (Civil), 2018 (2) [5 LM (AD) 20]

The Muslim Family Laws Ordinance, 1961

Changed this position the children of a predeceased son or daughter inherit the share–

According to Muslim Law of inheritance, predeceased son’s or daughter’s children could not inherit any share of the property of their grand father/mother. The Muslim Family Laws Ordinance, 1961 has changed this position. According to Muslim Family Laws Ordinance, 1961 the children of a predeceased son or daughter inherit the share which they (the predeceased son or daughter) would have inherited if alive from the property of their parents. .....Mohosin(Md) =VS= Mst. Angura Khatun, (Civil), 2018 (2) [5 LM (AD) 100]

The Muslim Marriage & Divorce Rules, 1975

Rule 8(2) read with

The Muslim Marriage & Divorce Act, 1974

Section 11

Nikah Registrar appointed temporary basis–

In respect of appointment of Respondent No.1 as Nikah Registrar on purely temporary basis, the provision of Rule 8(2) of the Muslim Marriage and Divorce Rules, 1975 is not applicable as the respondent No.1 was appointed as Nikah Registrar on purely temporary basis. Furthermore, the Nikah Registrar having been appointed on temporary basis he is required to issue a showcause notice following the principle of natural justice as required under Section 11 on Muslim Marriage and Divorce Act, 1974.  In view of the above, the judgment and order of the High Court Division making the Rule absolute is not sustainable in law. The judgment and order of the High Court Division is set aside and the appeal is allowed without any order as to costs. .....Amir Hossain(Md.) =VS= Abul Hashem(Md.), (Civil), 2018 (2) [5 LM (AD) 394]

The Motor Vehicles Act, 1988

Section 163A

The insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation–

The Tribunal noted that since the claim petition had been filed under Section 163A of the Act, the question of proving that the accident happened due to the rash and negligent act of the driver did not arise. By its award dated 30 July 2011, the Tribunal allowed a claim of Rs 4,60,800 together with interest at the rate 9% per annum. Preferred an appeal before the High Court of Karnataka. The appellants also filed an appeal before the High Court seeking enhancement of compensation awarded by the Tribunal. The High Court, by its impugned judgment, allowed the insurer’s appeal and set aside the order of the Tribunal. It was held that in a proceeding under Section 163A of the Act, the insurer cannot raise any defence of negligence on the part of the victim to counter a claim for compensation. The appeal is allowed. The impugned judgment of the High Court absolving the insurer is set aside and the order of the Tribunal is restored. There shall be no order as to costs. .....Shivaji =VS= United India Insurance Co. Ltd., (Civil), 2018 (2) [5 LM (SC) 130]

O

Observation of the Court–

A Court has right to make observation(s) in dealing with a matter, but it cannot make any observation(s) about the behavior or action of the writ respondent(s) in future, particularly, about the possible disobedience or violation of the order/direction/ observation of the Court, the reason being that when a Court passes an order or gives a direction or makes an observation it is presumed that such order/direction/observation shall be obeyed and complied with in its true purport and spirit. And if the Court itself nourishes an element of doubt in its mind as to the obedience or the compliance with its order/ direction/observation, then there cannot have any meaning in passing such order/ giving such direction/making such observation. And such kind of doubt by a court shall make the people's confidence in the administration of justice shaky. We would like to add further that a Court must always pass an order/give direction/and make observation in a positive way to ensure fair justice and not in a manner as quoted hereinbefore. .....Land Reform Board =VS= Md Hamdu Miah, (Civil), 2018 (2) [5 LM (AD) 117]

P

The Payment of Gratuity Act, 1972

Section 4(5) and (6)

Forfeiture of gratuity–

There is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20.04.2004 that the “misconduct proved against you amounts to acts involving moral turpitude”. At the risk of redundancy, we may state that the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law.That the Act must prevail over the Rules on Payment of Gratuity framed by the employer is also a settled position as per Jaswant Singh Gill (supra). Therefore, the appellant cannot take recourse to its own Rules, ignoring the Act, for denying gratuity.To sum-up, forfeiture of gratuity is not automatic on dismissal from service; it is subject to sub-Sections (5) and (6) of Section 4 of The Payment of Gratuity Act, 1972.Though for different reasons as well, we find no merit in the appeal and it is accordingly dismissed. No costs. .....Union Bank of India =VS= C.G. Ajay Babu, (Civil), 2018 (2) [5 LM (SC) 63]

The Public Servants (Dismissal on Conviction) Ordinance, 1985

Section 3(3)

The writ-petitioner-respondent shall be deemed to have been stand dismissed from the post of the principal of the Madrasah in question on the date of his conviction by the Magistrate, First Class, Bandarban in GR Case No. 37 of 2003. The writ-petitioner shall be re-instated in the post of the principal of the Madrasah in question forthwith, if the order of conviction and sentence passed against him by the Magistrate, First Class, Bandarban is set aside in the appeal filed by him. .....Abdul Hamid (Md) =VS= Moulana Obaidul Hakim, (Civil), 2018 (2) [5 LM (AD) 111]

The Punjab Local Governments (Conduct of Elections) Rules, 2013

Rule 35(4)

In the light of specific facts and figures of this case discussed above, exclusion of 207 votes would amount to excluding genuinely cast 207 votes from the count, which in the circumstances of the case would amount to disenfranchising 207 genuine voters. A five member bench of this Court in the case of Jamal Shah supra has held that omission on the part of the presiding officer to sign ballot papers is totally outside the obligation of the voters and for that they cannot be penalized by excluding their votes which were nevertheless duly stamped with the official mark. This dictum of Jamal Shah’s case was not touched upon by three member bench of this Court in the case of Shah Muhammad supra though it was cited. We allow this appeal on the basis of dictum laid down in Shah Jamal’s case and declare that 207 disputed ballot papers are to be treated as valid and shall be taken into vote-count......Zulfiqar Ali Ranjha =VS= Zia Ullah Ranjha, (Civil), 2018 (2) [5 LM (SC) 179]

Promotion to the higher posts–

The High Court Division did not take into consideration that ‘the writ-petitioners would also be considered for promotion to the higher posts of Assistant  Managers in accordance with DESCO’s Service Rules when new vacancy would be created’ and considering the fact that 67% of the vacant posts have already been filled up by way of direct recruitment on 27.12.2011, we are of the view that the remaining 33% posts of Assistant Managers should be kept reserved to be filled up by promotions from the writ petitioners in accordance with law as well as pursuant to Board’s decision dated 1.12.2001. As such the decision arrived at by the High Court Division being not based on proper appreciation of facts and law, calls for interference by this Division. The judgment and order complained of herein is set aside and these two civil appeals are therefore allowed with observations as made herein above. ..... Dhaka Electric Supply Company Limited =VS= Md. Tamijuddin, (Civil), 2018 (2) [5 LM (AD) 130]

Pay the back wages to the workers and salaries to the employees–

We wave the fine imposed by the High Court Division and direct the contemnors to pay a lump Sum amount of Tk.50,000/- each within seven days to the Secretary, Ministry of Labour. We direct the Secretary, Ministry of Labour to spend the said amount for the welfare of the workers of those tanneries. The tannery owners are also directed to pay the back wages to the workers and salaries to the employees, if any, remains outstanding till the date of closure of the tanneries within 1(one) month from the date receipt of this order. If they fail to pay their outstanding dues, the workers or employees have their right established in the High Court Division and the High Court Division in that case shall pass appropriate order. ..... Chairman, Bangladesh Finished Leather, Leather goods and Footwear Exporters Association (BFLLFEA) =VS= Adv. Asaduzzaman Siddique, (Civil), 2018 (2) [5 LM (AD) 153]

Partition on determination of title and also for recovery of khas possession– Concurrent findings of fact arrived by the Courts below interference by the High Court are set-aside–

Considered the judgments of all the Courts below, we are of the view that the High Court Division illegally interfered with the concurrent findings of fact arrived at by the Courts below although we do not find any misreading or non consideration of evidence warranting interference by the High Court Division. We find substance in this appeal. Accordingly, this appeal is allowed and the impugned judgments and decrees delivered by the trial Court and the appellate Court are hereby restored. .....Sukendra Bikas Das =VS= Anil Baran Das, (Civil), 2018 (2) [5 LM (AD) 327]

Pre-emption– The pre-emptor has failed to prove that he derived his knowledge about the kabala dated–

We have also perused the evidence. It appears that the pre-emptor claims to have derived his knowledge about the kabala in question from his full brother Mozammal Huq P.W.2 who derived his knowledge of the kabala from one Abdul Goni on 2nd Jaistha 1388 B.S. but this Abdul Gani was not examined in the case. Therefore, it appears that the pre-emptor has failed to prove that he derived his knowledge about the kabala sought to be pre-empted on 2nd Jaistha, 1388 B.S. In view of the discussion made above, we are of the view that the High Court Division erred in law in not assessing the evidence properly and thereby discharging the Rule. The appeal is accordingly allowed without costs. .....Humayun Kabir Khan =VS= Md. Nurul Haque, (Civil), 2018 (2) [5 LM (AD) 421]

Pre-emption–

It is clear that the appellate Court did not properly assess all the evidence and materials on record and did not reverse the findings of the trial Court, which were based on evidence and materials on record and arrived at upon giving cogent reasons. The High Court Division was patently in error simply endorsing the order of the appellate Court without considering whether the appellate Court had properly reversed the decision of the trial Court. The appeal is allowed, without however, any order as to costs. The judgement and order of the High Court Division is hereby set aside. .....Abul Hossain =VS= Most. Sakina Khatun, (Civil), 2018 (2) [5 LM (AD) 47]

R

The Registration Act, 1908

Section 17

Dissolution of partnership is not required to be registered–

We find that a deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable. .....Bangladesh Rubber Industries =VS= Dine Ara Begum, (Civil), 2018 (2) [5 LM (AD) 200]

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Section 15(2)

Objections to the proposed acquisition land–

We find that the Collector neither gave any opportunity to the appellants as contemplated under Section 15(2) of the Act and nor submitted any report as provided under Section 15(2) of the Act to the Government so as to enable the Government to take appropriate decision. In other words, we find that there is non-compliance of Section 15(2) of the Act by the Collector. In our view, it is mandatory on the part of the Collector to comply with the procedure prescribed under Section 15(2) of the Act so as to make the acquisition proceedings legal and in conformity with the provisions of the Act.We hereby direct the respondent No.2 herein (Collector, Winter Field, Shimla-3 HP) to decide the objections filed by the appellants on 05.01.2016 keeping in view the requirements of Section 15(2) of the Act and pass appropriate orders. .....Shiv Singh =VS= State of Himachal Pradesh, (Civil), 2018 (2) [5 LM (SC) 26]

Reward Order of 1974 or of 1980

Tax evasion–

The department already knew or was supposed to know who are liable to file their tax returns. Department’s lethargy or inefficiency or whatever the reason it may be in not collecting tax from tax defaulters would not bring any benefit to an informant who points out that tax is not being collected from a person or a section of a society in absence of any element of tax evasion. So merely drawing the attention of the tax department towards a particular person or a category of persons which has failed to pay tax on their incomes would not constitute ‘definite information’ falling within the ambit of ‘tax evasion’ as it is the evasion of tax that is key in granting of an award not failure to pay tax. Reward Order of 1974 or of 1980 was applicable at the time when the respondent raised his claim for reward with the tax department......Government of Pakistan =VS= Muhammad Junaid Talat, (Civil), 2018 (2) [5 LM (SC) 189]

Revisional jurisdiction of High Court Division–

We find that the trial Court has given a very elaborate judgement discussing the evidence and materials on record, and came to a finding based on those evidence and materials. The High Court Division in its revisional jurisdiction could only reverse those findings by specific reference to evidence and materials, which were not considered or were misread by the trial Court, which would have materially affected the decision had they been considered. We find that the trial Court and appellate Court have not misread any evidence nor left any material evidence out of consideration. In our opinion the decision of the High Court Division is not in accordance with the law and accordingly, the appeal is allowed and the judgement and order of the High Court Division is set aside. .....Younus Mia(Md.) =VS= Illias Ali Chowdhury, (Civil), 2018 (2) [5 LM (AD) 7]

Revisional jurisdiction before the High Court Division against the order of the District Judge–

On this score since the revisional application lies against the final order of the District Judge under a special law, the respondents herein correctly invoked revisional jurisdiction of the High Court Division against the order of the District Judge passed in appeal preferred against an order of eviction by the Deputy Commissioner pursuant to the prayer of the Waqf Administrator. Hence on the question as to whether revision is maintainable we hold the same in the affirmative.  .....Alhaj Dr. Chowdhury Mosaddequl Isdani =VS= Abdullah Al Munsur Chowdhury, (Civil), 2018 (2) [5 LM (AD) 85]

Responsibility of the High Court as custodian of the Constitution to maintain the social balance–

It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good. View that no principle of natural justice was violated in this case. The Syndicate of the University, holding inquiry, reached the right conclusion that admission test had been vitiated by practising unfair means on a mass scale by marketing the question paper before holding examination and the University had every right to cancel the admission test and order that a fresh examination be held. Allow the appeal and set aside the order of the High Court Division and affirm the decision taken by the Syndicate of the Islamic University......Islamic University =VS= Farhana Akhter Liza, (Civil), 2018 (2) [5 LM (AD) 34]

Review– Observation is expunged–

While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code of Criminal Procedure. This observation is made through overlooking sub-section (1B) of section 6 of the Criminal Law Amendment Act, 1958. The above observation is expunged. These petitions are disposed of with the above expunction and observations. .....Manzur Ahmed =VS= Government of Bangladesh, (Civil), 2018 (2) [5 LM (AD) 205]

S

The Specific Relief Act, 1877

Section 42

Plaintiff has not asked for any relief that the suit is hit by the provision of Sec. 42 of S.R. Act–

It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the Court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. .....Hashmat Ullah Tapadar(Md.) =VS= Baset Khan(Md.), (Civil), 2018 (2) [5 LM (AD) 397]

Specific performance of contract– Bainapatra– Appellate Court the last Court of fact–

The appellate Court discussed the evidence on record in detail and came to a definite finding that the plaintiff had been able to prove the bainapatra and the High Court Division did not commit any illegality in concurring with the findings and decision arrived at by the appellate Court, the last Court of fact. We do not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs......Maron Chandra Shil =VS= Fatema Begum, (Civil), 2018 (2) [5 LM (AD) 340]

The State Acquisition & Tenancy Act, 1950

Section 96 (3)

Pre-emption application fail for non deposit of the value of the deed under Section 96 (3) of the Act, 1950–

A deed of sale and not a deed of exchange, that the pre-emptors were co-shares in the case holding, the miscellaneous case was filed within time, there was no defect of party were ball based on proper sifting of the evidence and the High Court Division was totally wrong in holding that the deed in question was a deed of ewaz nama and not a deed of sale, the pre-emption application must fail for non deposit of the value of the deed under pre-emption and the statutory compensation thereon as discussed above and accordingly, we find on merit in the appeal and in the same is dismissed. .....Ruhul Amin (Md) =VS= Md Forkan Ullah, (Civil), 2018 (2) [5 LM (AD) 65]

The State Acquisition & Tenancy Act, 1951

Section 96

We must state the law that the pre-emptors were not at all required to file a separate suit for the declaration that the deed in question was not an ewaj deed, but it was an out and out sale deed, as the question could very well be raised and decided in the miscellaneous case itself filed for pre-emption of the land transferred by the deed in question. And it appears to us that the suit was filed on misconception of law by the Bar at the woe of pre-emptors. .....Ruhul Amin (Md) =VS= Md Forkan Ullah, (Civil), 2018 (2) [5 LM (AD) 65]

The State Acquisition & Tenancy Act, 1950

Section 96

Whether the pre-emptors had no locus-standi to file the case as the case khatian had already been separated–

It appears that the High Court Division considered the case of the respective party as made out in the respective pleading and the evidence on record and came to the clear finding that the order of separation of the khatian vide Mutation Case No. 683 of 1995-1996 was set aside in miscellaneous Appeal No. 03 of 1997 and that from the order in the miscellaneous appeal, it appeared that notice was served upon the dead persons named Yakub Mollah and Ramizuddin. The High Court Division also noticed that against the order passed in Miscellaneous Appeal No. 03 of 1997 cancelling the mutation of the pre-emptee, Miscellaneous Appeal No.301 of 2012 was filed before the Commissioner and the appeal was dismissed upholding the order dated 14.11.2012 in Miscellaneous appeal No.03 of 1997 and came to the conclusion that the pre-emptors were the sharers by inheritance in the case holding. On behalf of the pre-emptor-respondents, an additional paper book has been filed incorporating the orders passed in Miscellaneous Appeal No. 03 of 1997 and Appeal No.301 of 2012; from perusal of those orders, we found that the High Court Division took the correct view as to the separation of the khatian and the co-sharers ship of the pre-emptors in the case holding. .....Akhtaruzzaman Mollah(Md.) =VS= Jahirul Alam, (Civil), 2018 (2) [5 LM (AD) 166]

The State Acquisition & Tenancy Act, 1950

Section 96

Pre-emption of the case–

The High Court Division as the revisonal Court upheld the judgment and order of the appellate Court for the reason that the trial Court did not consider the whole aspect of the case, whilst the appellate Court considered the deposition of the witnesses, evidence on record, the impugned deed and location of the suit land.

The appellate Court also rightly refused to accept the solenama, the contents of which tend to show that pre-emptee No.2 was in collusion with the pre-emptors having received money outside the Court. Clearly this was not the money which the pre-emptor had deposited with the pre-emption application.

In the light of the facts and circumstances discussed above, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. .....Tafazzal Haq(Md.) =VS= Nazrul Islam(Md.), (Civil), 2018 (2) [5 LM (AD) 284]

The State Acquisition & Tenancy Act, 1950

Section 96

Pre-emption of the case–

Both the Courts below also found that the pre-emptees could not prove that the pre-emption case was barred by the principles of waiver and acquiescence. These findings of the Courts below having been based on proper appreciation of evidence on record should not be interfered with by the High Court Division as there is no mis-reading or non-reading of evidence on record.

We are of the view that High Court Division was not justified in setting aside the concurrent findings of fact of the Courts below.

This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. The judgment and order passed by the appellate Court affirming the judgment and order of the trial Court is hereby restored. .....Ramoni Golder =VS= Gopal Chandra Chowdhury, (Civil), 2018 (2) [5 LM (AD) 288]

The State Acquisition & Tenancy Act, 1950

Section 96(10) read with

The Evidence, Act,1972

Section 92

The High Court Division did not at all take into consideration the full purport of section 96(10) of the State Acquisition and Tenancy Act, 1950 and that a pre-emption case under Section 96 of the State Acquisition and Tenancy Act depends on the very nature of transaction i.e. whether a sale or a exchange and further the High Court Division failed to consider that the appellate Court, after thorough discussion of the evidence on record both oral and documentary, correctly came to the finding the transaction was not an out and out sale but an exchange which is not pre-emptible under Section 96(10) of the State Acquisition and Tenancy Act, 1950.

It further appears that the High Court Division failed to grasp the legal aspect to the effect that under section 92 of the Evidence, Act,1972 no evidence is admissible to vary the contents of the documents by any oral evidence and oral or extraneous evidence to contradict the terms of the contents of document is inadmissible. In view of section 92 of the Evidence Act a deed of exchange which is not pre-emptible under section 96 of the E.B. State Acquisition and Tenancy Act cannot be treated as a deed or sale and intention to treat a deed of exchange as a deed of sale is not permitted. The judgment of the High Court Division cannot be sustained and liable to be set aside. .....Nur Mohammad Mondal =VS= Mohammad Golam Rabbani, (Civil), 2018 (2) [5 LM (AD) 390]

Suit was not maintainable without the prayer for recovery of possession–

It would not be proper to remand the case after 30 years of it’s institution allowing the plaintiff to prove the deed produced by the defendants forged. We have already held that the plaintiffs have admitted the possession of the defendants in the suit land and that the instant suit was not maintainable without the prayer for recovery of possession, we are of the view that the prayer for remand of Mr. Samader does not deserve any consideration. We do not find any merits in the appeal. .....Parmalundra Joydhar =VS= Bhagirath Talukder, (Civil), 2018 (2) [5 LM (AD) 95]

Suo Motu Rule– To pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim–

Over the said incident a case has already been instituted and the police of Paltan Police Station has taken investigation. Since an investigation is pending over the said incident, the High Court Division acted illegally in directing to lodge the F.I.R against specified officials of the Dhaka City Corporation south, Dhaka. If the investigating agency finds prima facie case then it may submit police report against the persons who have shown negligence in keeping open the manhole. The observations and direction so far it relates to lodging the F.I.R and taking legal action by the High Court Division are hereby expunged. We direct the City Corporation South, Dhaka and Dhaka WASA to pay Tk. 50,00,000/- (fifty lac) jointly to the bereaved family of victim Sano Mia equally within 6(six) weeks from the date of receipt of the order......Rustom Ali(Md.) =VS= The State, (Civil), 2018 (2) [5 LM (AD) 158]

The Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Order XXVI

Review–

From the judgement sought to be reviewed that the points raised in the review petition were argued and dealt with by this Division. Hence we do not find any error apparent on the face of the record.  We do not find any error in the judgementof this Division, and accordingly, we find no merit in the instant review petition, which is accordingly dismissed. .....Shah Alam(Md.) =VS= Gomati Water Development Division, (Civil), 2018 (2) [5 LM (AD) 195]

The Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Order XXVII Rule 13

Contempt of Court–

The contemner-respondent has not denied having transferred the 29 flats after the order of status quo dated 14.03.2010 as alleged by the petitioners. So, it appears that the contemner-respondent has transferred as many as 29 flats constructed on the land in question in gross violation of the order of this Court dated 14.03.2010. By this act of violation of this court’s order the contemner-respondent has committed contempt of court. The contemner-respondent has showed gross disrespect to this court-the highest court of the country by violating its order which- cannot be and should not be overlooked or taken leniently. The contemner-respondent is directed to surrender before the central jail, Dhaka immediately to serve out the sentence and the superintendent of central jail is directed to receive and keep the contemner-respondent Mahfuzul Huq in jail to serve out his sentence. The Registrar of this Court is directed to issue  warrant of commitment and detention of the contemner-respondent in jail as per Order XXVII Rule 13 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988.          .....Faiz Ahmed =VS= Mahfuzul Huq, (Civil), 2018 (2) [5 LM (AD) 383]

The Supreme Court Rules, 2013

Order VI Rule 2

Seat and Venue for holding arbitration proceedings–

The “seat” and “venue” for holding arbitration proceedings by the arbitrators arising under the Arbitration Agreement/International Commercial Arbitration Agreement is primarily required to be decided keeping in view the terms of the arbitration agreement itself, but having regard to the law laid down by this Court in several decisions by the Benches of variable strength as detailed above, and further taking into consideration the aforementioned submissions urged by the learned counsel for the parties and also keeping in view the issues involved in the appeal, which frequently arise in International Commercial Arbitration matters, we are of the considered view that this is a fit case to exercise our power under Order VI Rule 2 of the Supreme Court Rules, 2013 and refer this case (appeal) to be dealt with by the larger Bench of this Court for its hearing. .....Union of India =VS= Hardy Exploration & Production (India), (Civil), 2018 (2) [5 LM (SC) 132]

T

The Trade Marks Act 1940

Section 46

The High Court Division, considering the above position, allowed the application of the respondent No.1 and expunged the trade mark of the appellant, being No.38902 in class 29, from the Registry of Trade Marks and directed the Registrar to rectify the Registry accordingly. We are of the view that the High Court Division, on consideration of the materials on record and upon correct assessment of the provisions of law, allowed the application filed by the respondent No.1 under Section 46 of the Trade Marks Act 1940 in accordance with law and accordingly no interference is called for. .....Samir Kumar Ghosh =VS= Anil Kumar Ghosh, (Civil), 2018 (2) [5 LM (AD) 403]

The Transfer of Property Act, 1882

Section 53A

Confers no right on a party who was not willing to perform his part of the contract–

It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract. We do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today. The appeal is dismissed with no order as to costs. .....Shivaji Yallappa Patil =VS= Sri Ranajeet Appasaheb Patil, (Civil), 2018 (2) [5 LM (SC) 16]

The Transfer of Property Act, 1882

Section 53A

It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act. .....Shyam Narayan Prasad =VS= Krishna Prasad, (Civil), 2018 (2) [5 LM (SC) 21]

The Transfer of Property Act, 1882

Section 106

The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice–

High Court Division in revision could interfere with the concurrent findings of fact of the Courts below only on the ground of error of law resulting in an error in the division occasioning failure of Justice. The findings of the Courts below based on consideration of the evidence on record is not liable to be interfered with in revision. The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent of error of law occasioning failure of justice. But in the instant case the High Court Division wrongly construed the terms of Ext.1 in its finding that the notice under section 106 Transfer of Property Act is not a valid and legal notice. Thus the impugned judgment and order of the High Court Division suffers from illegality and infirmity. The impugned judgment of the High Court Division is not sustainable in law and accordingly the same is liable to be set aside. .....Santosh Kumar Das =VS= Hajee Badiur Rahman, (Civil), 2018 (2) [5 LM (AD) 423]

The Transfer of Property Act, 1882

Section 118

An exchange, value of which exceeds Tk.100/-, is to be registered–

The defendants contended that the records of right stand in their names and accordingly they acquired good title and interest in the suit land but if the above contention is sustained flood gates will be opened to those persons whose name have been recorded in the records of right and further the settled principles of law in this regard is otherwise; the defendant claimed the suit land on the basis of exchange between the original plaintiff and defendant and not on the basis of adverse possession and both the courts below concurrently found that the defendant failed to prove any exchange; the exchange was false and that in terms of section 118 of the Transfer of Property Act an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee. .....Munshi Firoz Elahi =VS= Ruhul Amin alias Lablu, (Civil), 2018 (2) [5 LM (AD) 387]

U

The University of Karachi Service Pension Statute, 1972

Section-26

The university contested her claim primarily on the ground that her husband had not put in the minimum of ten year qualifying service to make his service pensionable so she was not entitled to claim any concession towards pension under the family assistance package. The late husband of the appellant had put in only about five years of service, well short of rendering qualifying length of service which only would have entitled his widow to claim any concession granted towards the quantum of pension. As stated earlier, only where a person renders qualifying service under pension rules that he becomes eligible for any further concession that may be granted towards pension from time to time. Thus the University’s family assistance package, in so far as it relates to enhanced pensionary benefits, was payable to the family of such deceased employee who had rendered minimum qualifying service in his lifetime under the provisions of the University of Karachi Service Pension Statute, 1972. This appeal, therefore, fails, which is hereby dismissed. .....Syeda Sakina Riaz =VS= Federation of Pakistan, (Civil), 2018 (2) [5 LM (SC) 184]

The Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961

Section 9, 15(13)

It intends to empower the Panchayats and that is why, Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that subsection (13) of Section 15 provides that no notice of a motion under Section 15 shall be received within two years of the assumption of office by a Pramukh. This is in consonance with the principle of stability of rural governance. There are provisions for removal in case of misconduct and certain other situations with which we are not concerned. The appeal, being devoid of merit, stands dismissed. There shall be no order as to costs.            .....Kiran Pal Singh =VS= The State of Uttar Pradesh, (Civil), 2018 (2) [5 LM (SC) 203]

W

The Wakf Ordinance, 1962

Section 34(5)

Empowers legally the wakf administrator to make necessary amendment/change or variation of the “scheme”–

We very meticulously considered the said provision of law and we are satisfied that the wakf administrator was very much within his legal ambit and jurisdiction to change/modify the scheme or byelaws as made  by the wakf administrator which has been upheld by the High Court Division. .....Afsar Uddin Sarker =VS= Md. Aftabuddin & others, (Civil), 2018 (2) [5 LM (AD) 412]

The Waqf Ordinance, 1962

Section 43

Appoint Mutwalli–

The High Court Division also failed to consider the age old legal principle that fraud vitiates everything. The High Court Division also failed to consider that in view of the provisions of section 17 of the Code, the District Judge, Nawabgonj had the jurisdiction to hear the appeal under section 43 of the Ordinance though some of the properties Waqf Estate were situated in District-Rajshahi. In view of the above, the impugned judgment and order cannot be maintained and must be set aside. The impugned judgment and order is set aside and those of the District Judge are restored. The Administrator of Waqfs is directed to appoint Mutwalli in respect of the Waqf Estate in question as expeditiously as possible, not beyond 3 (three) months from the date of receipt of this judgment, keeping in view the terms of the Waqf deed and the provisions of law notifying the concerned parties and hearing them. .....Rabiullah (Md) =VS= Md Mostafizur Rahman, (Civil), 2018 (2) [5 LM (AD) 73]

The Waqf Ordinance, 1962

Section 64 read with

The Code of Civil Procedure, 1908

Section 115

It has the power to interfere with the judgment only when there appears error of law apparent on the face of the record occasioning failure of justice. It has already been discussed earlier that under a proceeding arising out of section 64 of the Waqf Ordinance there is no scope to decide title or any dispute regarding the property. Only thing is to be looked into in such proceeding is whether the property belongs to a Waqf Estate and whether the occupier of it is an illegal occupier. The Administrator as well as the Deputy Commissioner in the present case after holding separate inquiries found the allegation of illegal occupation of 23 decimals of land by the present respondents, correct/proved and hence evicted the illegal occupants (present respondents No. 1 to 3) from the said property of the Waqf Estate. We are of the view that the High Court Division, while making the Rule absolute, failed to consider all these aspects and rather misdirected itself and as such came to an erroneous finding and conclusion which is required to be interfered with by this Division. Accordingly we find merit in this appeal. .....Alhaj Dr. Chowdhury Mosaddequl Isdani =VS= Abdullah Al Munsur Chowdhury, (Civil), 2018 (2) [5 LM (AD) 85]

Who can give Fatwa on religion–

(i) Fatwa on religious matters only may be given by the properly educated persons which may be accepted only voluntarily but any coercion or undue influence in any form is forbidden.

(ii) But no person can pronounce fatwa which violates or affects the rights or reputation or dignity of any person which is covered by the laws of the land. 

(iii) No punishment, including physical violence and/or mental torture in any form, can be imposed or inflicted on anybody in pursuance of fatwa.

(iv) The declaration of the High Court Division that the impugned fatwa is void and unauthorized, is maintained. (Syed Mahmud Hossain, J). .....Mohammad Tayeeb =VS= Ministry of Religious Affairs, (Civil), 2018 (2) [5 LM (AD) 461]

Writ jurisdiction–

The High Court has power to issue writ in grave cases where the subordinate tribunal acts wholly without jurisdiction or excess of it. The High Court Division has exceeded its norms in examining two witnesses and directing the writ respondents to exclude the building in question from the ‘Ka’ list and to restore possession. The very conduct of the writ petitioner shows that he has not appeared in the court for three months. This is apparent on the face of the order sheet of the Court of Settlement. He has failed to produce any original deed in respect of the property situated in a posh area of Dhaka City. No fruitful purpose will be served if the matter is remanded to the High Court Division. The judgment of the High Court Division is set aside. The appeal is allowed. .....Ministry of Housing & Public Works =VS= Mohammad Alam, (Civil), 2018 (2) [5 LM (AD) 97]

 

SEE ALSO:

Additional evidence–[5 LM (SC) 44]

Appoint Mutwalli–[5 LM (AD) 73]

Bainapatra–[5 LM (AD) 340]

Block Assessment–[5 LM (SC) 126]

Contempt of Court–[5 LM (AD) 383]

Constitution of Bangladesh, Article 102(1)– [5 LM (AD) 344]

Code of Civil Procedure, Order 21 Rule 90–[5 LM (AD) 418]

Code of Civil Procedure, Section 115–[5 LM (AD) 85]

CPC, Order 7 Rule 11–[5 LM (SC) 48]

Constitution of Pakistan, Article 25(3)– [5 LM (SC) 175]

Declaring the result of the election–[5 LM (AD) 169]

Dissolution of partnership is not required to be registered–[5 LM (AD) 200]

Exemption Income Tax–[5 LM (SC) 193]

Evidence, Act,1972, Section 92–[5 LM (AD) 390]

Fatwa–[5 LM (AD) 435]

Forfeiture of gratuity–[5 LM (SC) 63]

Intermediate and Secondary Education Ordinance, 1961, Sections 3 and 39(2)(vi)– [5 LM (AD) 185]

International Crimes (Tribunals) Act, 1973–[5 LM (AD) 492]

Limitation–[5 LM (AD) 335]

Legitimate expectation–[5 LM (AD) 297]

Nikah Registrar appointed temporary basis–[5 LM (AD) 394]

Objections to the proposed acquisition land–[5 LM (SC) 26]

Pre-emption of the case–[5 LM (AD) 284], [5 LM (AD) 288]

Possession of the shop–[5 LM (SC) 173]

Parents fight their children’s custody cases–[5 LM (AD) 358]

PSI Order, 1999, Article 8(3), 9–[5 LM (AD) 331]

Review–[5 LM (AD) 367], [5 LM (AD) 331], [5 LM (AD) 205], [5 LM (AD) 195]

Seniority–[5 LM (AD) 182]

Summary suit–[5 LM (AD) 414]

Suo Motu Rule–[5 LM (AD) 158]

Tax evasion–[5 LM (SC) 189]

30 years old documents–[5 LM (AD) 58]

Wasiyatnama–[5 LM (AD) 363]

Worker benefits–[5 LM (SC) 57]

West Bengal Premises Tenancy Act, 1997, Section 5(8)– [5 LM (SC) 53]

 

 

 

Head Note

The Law Messenger

Volume– V

2018 (2)

 

 

(CRIMINAL JURISDICTION)


A

The Anti-Corruption Commission Act, 2004

Section 26

The Commission has discretionary power to proceed against the alleged offender under any provisions of the Ain, but its satisfaction is subject to the confirmation by the court. The question of prior knowledge of the Commission before issuing notice under section 26 is not required to be reflected in the FIR or the police report. The law enjoins the Commission to exercise its discretion and in exercising its discretion, the offender does not have any say. It may collect information on the basis of notice issued under section 26 or it may form its opinion from other sources......Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, (Criminal), 2018 (2) [5 LM (AD) 226]

The Anti-Corruption Commission Act, 2004

Section 27

An officer of the Commission or a police officer cannot have a final say in respect of an occurrence which is punishable under section 27 of the Ain or any other provision of the said Ain. The officer may find case against an offender after investigation that the allegation prima-facie discloses an offence under section 27. The final decision in respect of the allegation is of the Court i.e. the special Judge and his decision is also subject to the decision of the appellate court which can affirm, modify, set aside the judgment or send the matter on remand for fresh trial. It has all the powers of the trial court. .....Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, (Criminal), 2018 (2) [5 LM (AD) 226]

The Anti-Corruption Commission Act, 2004

Section 32 read with

The Criminal Amendment Act, 1958

Section 6(5)

Sanction requirement to file Anti-corruption Case–

Section 32 of the Anti-Corruption Commission Act, 2004 while giving the direction. Since in the instant case cognizance was taken long back before the coming into being of Anti Corruption Commission Act, 2004, Section 32 of the Act shall have no application in the instant case. Since by Section 28(2) requirement of sanction under Section 6(5) of Criminal Amendment Act, 1958 was done away the case can proceed now without any sanction in accordance with law and therefore Section 32(2) of Anti Corruption Commission Act, 2004 has no manner of application in the instant case. .....Mostafa Kamal =VS= Salahuddin Ahmad, (Civil), 2018 (2) [5 LM (AD) 431]

The Arms Act, 1959

Section 25 (1) (a) & 25 (1AA) read with Sec. 35

The Accused in jail it is not possible to hold that he was in joint occupation of the house–

Set aside the conviction of Mohmed Rafiq Abdul Rahim Shaikh (A-4) under Section 25 (1) (a) & 25 (1AA) read with Section 35 of the Arms Act, 1959. Since the Accused was in jail it is not possible to hold that he was in joint occupation of the house in accordance to Section 35 of the Arms Act, 1959. .....Mohmed Rafiq Abdul Rahim Shaikh =VS= State of Gujarat, (Criminal), 2018 (2) [5 LM (SC) 91]

B

Blasphemy law

Blasphemy offence– Acquitted of the charge by extending the benefit of doubt–

Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous.

The prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and she is acquitted of the charge by extending the benefit of doubt to her. She shall be released from the jail forthwith if not required to be detained in connection with any other case. (Asif Saeed Khan Khosa, J) .....Asia Bibi(Mst.) =VS= The State, etc, (Criminal), 2018 (2) [5 LM (SC) 140]

C

The Code of Criminal Procedure, 1898

Sections 154-173, 173(3B)

We are of the view that the investigation of crime is carried out dehors the mandate contained in the Code of Criminal Procedure containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). The High Court Division rightly allowed the investigating agency of holding further investigation even after submission of the police report and after acceptance of the same. The facts, circumstances and law related thereto, we do not find any wrong in the decision of the High Court Division which calls for any interference by this Division. .....Monjur Morshed Khan =VS= Durnity Daman Commission, (Criminal), 2018 (2) [5 LM (AD) 241]

The Code of Criminal Procedure, 1898

Section 173(3B)

Further investigation–

Unless an extraordinary case of gross abuse of power is made out by the investigating agency, the Court should be quite loathe to interfere with the investigation, a field actively reserved for the investigating agency and the executive. The expression 'further investigation' as used in 173(3B) is distinguishable from reinvestigation. Further is additional, more, supplemental. Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation. Here in this case in his prayer the petitioner, inter alia, prayed, "........ ïaygvÎ `iLv¯ÍKvix Avmvgx wb‡Ri bv‡g AwR©Z ¯’vei I A¯’vei m¤ú` we‡ePbv wbwg‡Ë c~btZ`‡šÍ †cÖi‡bi Av‡`k `v‡b Avcbvi GKvšÍ gwR© nq|" We do not find any provision in the law for holding c~btZ`šÍ of the case at the instance of the accused person. The point raised by Mr AJ Mohammad Ali can be taken as defence of the case at the time of holding trial. We do not find any substance in this petition. .....Dr Khandaker Mosharraf Hossain =VS= State, (Criminal), 2018 (2) [5 LM (AD) 238]

The Code of Criminal Procedure, 1898

Section 231

As per provision of section 231 of the Code of Criminal Procedure if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case but in this case, the charge has been altered and two of the accused persons were made approvers and they are examined as PWs. In such circumstances, it was reasonable to allow the accused petitioner to re-examine the witnesses. This petition is disposed of. The prayer of the petitioner so far the same relates to recalling the PWs 1 to 5 and 8 are allowed. The prayer in respect of direction to Public Prosecutor to issue certificate regarding the evidence of approvers is rejected. .....Gias Uddin al-Mamun (Md) =VS= State, (Criminal), 2018 (2) [5 LM (AD) 244]

The Code of Criminal Procedure, 1898

Section 426

Granting bail–

Section 426 of the Code of Criminal Procedure, was given by the High Court Division while granting bail to the said convict who was sentenced to 7 (seven) years imprisonment. Thus, when discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division. .....Durnity Daman Commission =VS= Begum Khaleda Zia, (Criminal), 2018 (2) [5 LM (AD) 207]

The Code of Criminal Procedure, 1898

Section 426

In many cases, bail has been granted even in cases involving serious and heinous offences where the Court has observed that prima facie there is no legal evidence to sustain the conviction and there is chance to succeed in the appeal. In a number of cases, it has been also decided that where the sentence is relatively short and the appeal is not likely to be heard for some time, thus rendering the appeal infructuous, bail could be granted. On that consideration, to our knowledge, bail has been granted in cases where sentence of imprisonment extended to 3 (three) years. .....Durnity Daman Commission =VS= Begum Khaleda Zia, (Criminal), 2018 (2) [5 LM (AD) 207]

The Code of Criminal Procedure, 1898

Section 426

Undoubtedly in any case, where a court of law exercises its discretion, such discretion must be exercised judiciously. The Court must not lose sight of the fact that section 426 of the Code provides that the Court granting bail must record its reason in writing. Once that is done, this Court does not readily interfere with the discretion exercised by the High Court Division. .....Durnity Daman Commission =VS= Begum Khaleda Zia, (Criminal), 2018 (2) [5 LM (AD) 207]

A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law–

It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination. Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio-economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. .....The State =VS= Md. Ali Reza, (Criminal), 2018 (2) [5 LM (AD) 247]

The Constitution of Bangladesh, 1972

Article 103

Granting of leave–

Under article 103 of the constitution a litigant has acquired right; (a) if the High Court Division certifies that the case involves a substantial question of law as to the interpretation of constitution, (b) the High Court Division has confirmed a sentence of death or sentenced a person to death or imprisonment for life, and (c) the High Court Division has imposed punishment on a person for contempt. In respect of a leave petition, the application has no right at all. If this court grants leave then the applicant has entered into the appellate forum. If the case covers Clauses (a) to (c) above, there will be no necessity to obtain leave from this court. The applicant has no necessity of praying for granting leave. In respect of leave petition, the court may refuse leave and dismiss the petition summarily either ex-parte or after issuing notice upon the respondent. Normally notice is served by the petitioner through his Advocate-on-record before filing the petition. While hearing the petition for leave to appeal, the court is called upon to see whether the petitioner has a case so that he should be granted leave from the judgment of the High Court Division. If the court grants leave, he will enter into the appellate forum and if the court does not grant leave he does not enter into the appellate forum. He still remains in the discretionary jurisdiction of the court. Therefore, granting of leave is not sine qua non in a leave petition. .....Iqbal Hasan Mahmood Tuku =VS= Anti-Corruption Commission, (Criminal), 2018 (2) [5 LM (AD) 226]

The Constitution of Bangladesh, 1972

Article 104

Complete Justice–

The High Court Division simply converted the conviction and  modified the sentence from section 11(ka)/30 of the Ain 2000 to section 302/34 of the Penal Code. The statute has not entrusted the High Court Division to exercise such power of conversion of conviction. Because conversion of conviction  from special law to a different law can only be done by the Appellate Division  empowered under Article 104 of the Constitution to do ”complete justice“ in appropriate cases pending before it under Article 103 of the Constitution. .....The State =VS= Nurul Amin Baitha, (Criminal), 2018 (2) [5 LM (AD) 311]

I

The Indian Penal Code, 1860

Section 34

Each criminal trial is but a quest for search of the truth. The duty of a judge presiding over a criminal trial is not merely to see that no innocent person is punished, but also to see that a guilty person does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The trail court had erred and misappreciated the evidence to arrive at an erroneous conclusion. In any event the High Court has not ascribed any special reasons for the same. We are therefore unable to sustain the direction for denial of remission to the appellant for twentyfive years and set aside the judgement to that extent only. Consequentially we find no merit in the appeal except to the extent indicated. The appeal is allowed only to the extent indicated......Smt. Shamim =VS= State (Gnct of Delhi), (Criminal), 2018 (2) [5 LM (SC) 107]

The Indian Penal Code, 1860

Section-302

We direct the Sessions Judge, who is seized of the trial of the respondents’ case in question, to ensure that the trial is completed on merits within one year from the date of this order strictly in accordance with law. Depending upon the evidence adduced by the prosecution, the Sessions Judge has ample power to alter/amend/add any charge by taking recourse to powers under Section 216 of the Cr.P.C. notwithstanding the High Court altering the charge at this stage. The appeal fails and is accordingly dismissed. The order granting interim stay is recalled. .....State of Haryana =VS= Rajesh Aggarwal, (Criminal), 2018 (2) [5 LM (SC) 99]

The Indian Penal Code, 1860

Section 304

There are some exceptions when culpable homicide is not murder–

We are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death. This knowledge must be attributed to Tularam. Under the circumstances, the conviction of Tularam of an offence punishable under Section 302 of the IPC is set aside but he is convicted of an offence punishable under the second part of Section 304 of the IPC. The appellant has been behind bars for almost 14 years. His sentence is altered to the period of incarceration he has already undergone. He be released forthwith. .....Tularam =VS= State of Madhya Pradesh, (Criminal), 2018 (2) [5 LM (SC) 101]

The Indian Penal Code, 1860

Section 304 (Part I)

Though the accused No.1 was not having intention to commit murder of the deceased but the act was to cause bodily injury which was likely to cause death. Therefore, the High Court found that he would be responsible for commission of culpable homicide not amounting to murder punishable under Section 304 (Part I) of IPC. The High Court after scanning the entire evidence also held that the respondents were not having an intention to commit murder of the deceased Rajesh. We do not find any infirmity in the judgment of the High Court. .....State of Madhya Pradesh =VS= Gangabishan, (Criminal), 2018(2) [5 LM (SC) 104]

The Indian Penal Code, 1860

Section 376

Committed rape–

It is fairly well-settled that in the absence of external injury on the person of the prosecutrix, it cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case. The impugned judgment of the High Court reversing the conviction of the respondent to acquittal, cannot be sustained and the same is liable to be set aside and the judgment of the trial court convicting the respondent under Section 376 I.P.C. is to be restored. The trial court has sentenced the respondent-accused to undergo imprisonment for a period of seven years. Accordingly the appeal preferred by the State is allowed and the conviction of the respondent-accused under Section 376 I.P.C. as passed by the trial court is restored. However, the period of sentence of seven years, as noted above, is reduced to four years. In case the respondent has not already undergone the sentence of imprisonment of four years, he is to surrender to custody within a period of fours weeks from today to serve the remaining sentence failing which he shall be taken to custody. .....State of Madhya Pradesh =VS= Preetam,(Criminal), 2018 (2) [5 LM (SC) 96]

J

The Jail Code

Rule 991 (I) & (VI) read with

International Crimes (Tribunals) Act, 1973

Review petition should not be equated with an appeal– The condemned prisoner should be afforded an opportunity to file a mercy petition–

A review petition should not be equated with an appeal. In criminal matters, the power of review must be limited to an error which have a material, real ground on the face of the case. The finality attached to a judgment at the apex level of the judicial hierarchy upon a full fledged hearing of the parties should be re-examined in exceptional cases and a review is not permissible to embark upon a reiteration of the same points. The period of limitation provided in the Appellate Division rules will not be applicable in respect of a review petition from a judgment on appeal under the Act of 1973. The period of limitation is fifteen days and the review petition should be disposed of on priority basis. If a warrant of death for execution is communicated to the Jail authority after it is confirmed or imposed by this Division, the condemned prisoner should be afforded an opportunity to file a mercy petition and he should also be afforded an opportunity to meet his near ones before the execution of the sentence. If the jail authority fixes a date for execution of the sentence, the same cannot be taken as has been done hurriedly. If any review or mercy petition is filed or pending, the sentence cannot be executed unless the petitions are disposed of. So, the period of seven days or twenty one days mentioned in sub-rules (I) and (VI) of rule 991 of the Jail Code have no force of law under the changed conditions. .....Abdul Quader Mollah =VS= Chief Prosecutor, ICT, Dhaka, (Civil), 2018 (2) [5 LM (AD) 435]

N

The Narcotic Drugs and Psychotropic Substances Act, 1985

Section 18

Findings of the trial court cannot be distorted conclusions–

The findings of the trial court cannot be said to be ‘distorted conclusions’ warranting interference. Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained. The conviction of the appellant under Section 18 of the NDPS Act and the sentence of imprisonment imposed on him is set aside and this appeal is allowed and the appellant is acquitted of the charge. .....Mohinder Singh =VS= State of Punjab, (Criminal), 2018 (2) [5 LM (SC) 83]

The Negotiable Instruments Act, 1881

Section 138

Two questions are involved in these appeals and petitions. The first question is whether if a company incorporated under the Companies Act commits an offence punishable under section 138 of the Negotiable Instruments Act, 1881 is excluded from prosecution, can a director, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case. .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251]

The Negotiable Instruments Act, 1881

Section 138

Cheque dishonour–

There is no legal bar of filing a single case against the drawer of the cheques if the notice is served within the period of limitation intimating the fact of dishonour of the cheques with a request to pay the amount involved in those cheques within a period of thirty days. .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251]

The Negotiable Instruments Act, 1881

Section 138

Scope to cross-examine and also be at liberty to examine defence witness–

The High Court Division took the right view that the accused should be given scope to cross-examine PW1 allowing 2/3 dates as the Metropolitan Additional Sessions Judge, in the meantime, fixed the respective cases for examination of the accused under section 342 of the Code  and accordingly, we endorse the same. We add by saying that the respective petitioners shall also be at liberty to examine defence witnesses, if they so desire, after their examination under section 342 of the Code. The trial Court is directed to conclude the trial as expeditiously as possible, but not later than 2(two) months from the date of receipt of this judgment. .....Majad Hossain =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 318]

The Negotiable Instruments Act, 1881

Section-138

The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by him, the presumption under S.139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. In view of the aforesaid facts and circumstances, the impugned order dated 27.09.2013 passed in Criminal Revision Petition Nos. 1657 and 1658 of 2008 is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored. .....T.P. Murugan =VS= Bojan, (Criminal), 2018 (2) [5 LM (SC) 73]

The Negotiable Instruments Act, 1881

Section 138 & 139

The trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case.

No evidence was led by the accused. The defence taken in the reply to the notice that cheque was stolen having been rejected by the two courts below, we do not see any basis for the High court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption under Section 139 can be rebutted on the evidence of PW.1, himself has not been explained by the High court. We are of the view that the High Court committed error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction. In the result, the appeal is allowed, judgment of the High Court is set aside and judgment of trial court as affirmed by the Appellate Court is restored. .....Kishan Rao =VS= Shankargouda, (Criminal), 2018 (2) [5 LM (SC) 77]

The Negotiable Instruments Act, 1881

Section 141

If a company is not prosecuted due to any legal snag or otherwise, the other prosecuted persons can not, on that score alone, escape from criminal liability created through legal fiction envisaged in section 141 of the Act.’ .....Mohammad Eusof Babu =VS= Johan Provanjon Chowdhury, (Criminal), 2018 (2) [5 LM (AD) 251]

P

The Penal Code, 1860

Section 302/34

The prosecution failed to prove the case against the appellants beyond reasonable doubt–

 The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the  Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentencing the appellants on such unfounded evidence is not sustainable in law. Hence we find merit in this appeal. The judgment and order of conviction and sentence, passed by the Court of Sessions as well as by the High Court Division against  the present appellants, are set aside. The appellants are directed to be released forthwith from custody, if not wanted in connection with any other case. .....Humayun Kabir =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 214]

The Penal Code, 1860

Sections 302/34/114

A single testimony if convincing and found to be full, complete and self contained, whether  corroborated by other witness or not, is sufficient to bring home the charge and as such there will be no illegality in convicting an accused on the basis of such single evidence. The doctor who conducted the post mortem, the High Court Division  categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them. We are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with. We do not find any merit in this appeal. Hence the jail appeal is dismissed. .....Jharu =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 233]

The Penal Code, 1860

Section 304 Part II

High Court Division has totally misread the medical evidence–

The High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medical evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, we covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. The appellants be set at liberty at once if not wanted connection in any other case. The appeal is dismissed with the modification of the conviction and sentence. .....Firoz Ali =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 223]

The Prevention of Corruption Act, 1988

Section 7, 13(1)(d)

Reduce the Sentence–

While appreciating the evidence, the High Court should have given proper weight to the views of the trial court as to the credibility of all evidence of PWs 1 and 3. When the findings recorded by the trial court is based upon appreciation of evidence, the High Court was not right in reversing the judgment of the trial court. In so far as the sentence of imprisonment is concerned for conviction under Section 13(1)(d) of the Act, the trial court imposed sentence of imprisonment of two years upon each of the accused. The occurrence was of the year 1991 that is about 27 years ago. Considering the passage of time, we deem it appropriate to reduce the sentence of imprisonment of two years to the statutory minimum imprisonment of one year. The respondents/accused Nos.1 and 2 shall surrender themselves to serve the remaining sentence within two weeks from today, failing which, they shall be taken into custody. .....State of Gujarat =VS= Navinbhai Chandrakant Joshi, (Criminal), 2018 (2) [5 LM (SC) 87]

 

SEE ALSO:

Cheque dishonour–[5 LM (AD) 251]

Complete Justice–[5 LM (AD) 311]

Committed rape–[5 LM (SC) 96]

Criminal Amendment Act, 1958, Section 6(5)– [5 LM (AD) 431]

Further investigation–[5 LM (AD) 238]

Granting bail–[5 LM (AD) 207]

Granting of leave–[5 LM (AD) 226]

Reduce the Sentence–[5 LM (SC) 87]

 

End.