Government of Bangladesh vs. Md. Hadisur Rahman, 26 BLC (AD) 294
The government cannot give compensation for the land acquired, beyond the rate fixed for the same, which was notified earlier by publication of Gazette.
By virtue of a letter, which is superfluous in nature, it does not give any right to the writ petitioners to file a petition under Article 102 of the Constitution.
The writ petition was not maintainable, because the dispute herein is regarding the payment of compensation of the acquired land. The procedure of payment of compensation of acquired land has been described in section. 10 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance 1982)
If any dispute arises regarding payment of compensation, it shall be dealt with in accordance with law, more particularly as per section 10 of the Ordinance, 1982.
Sep - 2021
Ashraful Islam Imran vs. State, 26 BLC (AD) 1
The Mobile Court Ain, 2009 is a special law. The Code of Criminal Procedure has not been made applicable in the matters arising out of the Mobile Court Ain.
Although the Mobile Court Ain, 2009 does not provide the appellate Court with any power to grant bail, it should not overlook the provision of granting bail which is especially provided for in the case of short sentences.
The petitioner was sentenced to imprisonment for 6 months. Hence, the general law provides that the Court passing the sentence may grant bail if the convict expresses his intention to present an appeal.
Moreover, it must be borne in mind that where the sentence is only for a short period, in this case six months' simple imprisonment, not granting bail would frustrate the appeal and ultimate success, if any, would be meaningless.
Ends of justice requires that when a person is convicted and sentenced to imprisonment for less than one year and he applies for bail before the Court convicting him stating that he intends to prefer appeal, or an appeal is admitted challenging the extent or legality of the sentence, bail ought to be granted.
Ashraful Islam Imran vs. State, 26 BLC (AD) 1
Section 426(2)—When a person is convicted and sentenced to imprisonment for less then one year and he applies for bail before the Court convicting him stating that he intends to prefer appeal, or an appeal is admitted challenging the extent or legality of the sentence, bail ought to be granted.
Sep - 2021
Government of Bangladesh vs. Ala Box, 26 BLC (AD) 289
In exercising writ of certiorari the High Court Division can only look into, if it can show that the judgment has been obtained by fraud, collusion or corruption, the Court of Settlement has acted contrary to the principal of natural justice or judgement based on no evidence or the decision is vitiated by malafide.
Property in question was abandoned first in 1972 as owner Mr Raisat was untraceable from 25th March 1971, after liberation he never took possession, control and manage the property. He also never claimed this property and, as such, the property in question was vested in the Government under Article 4 of the PO No.16 of 1972. Thereafter, Gazette dated 23-9-86 vide Ordinance No. LIV of 1985 the property was vested as an abandoned property in the Government. As per provisions of section 5(2) of the Ordinance No. LIV of 1985 such vesting shall be the conclusive evidence of the fact that building included therein are abandoned property.
A writ of certiorari is maintainable only if it can be shown that the tribunal erroneously held that the property was illegally declared as abandoned property without admitting legal evidence or rejected the legal evidence or it has misconstrued the law.”
“The decree in the suit for specific performance of contract will show that is has only decided the controversy between the vendor and vendee and declared to Vendor to execute the necessary document in favour of the vendee. Such a decree is not the one which is mentioned in proviso (a) and, as such, the existence of such a decree cannot be pleaded as bar for inclusion of the building.”
“Suit for specific performance of contract - even if the decree was obtained legally the Government is not bound by the decree passed in a suit for specific performance of contract. In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and, as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree.
Sep - 2021
Md. Sekander vs. Janata Bank Ltd., 25 BLT (AD) 2017 36
Sub-section (2) of Section 6 of the Administrative Tribunal Act, 1980 provides, that any person aggrieved by an order or decision of the Administrative Tribunal may prefer an appeal to the Administrative Appellate Tribunal within 3 (three) months from the date of making the order or decision. Sub-section (2A) provides that notwithstanding the provisions of Sub-section (2), an appeal may be admitted after the said period of three months but not later than six months, if the appellant satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring an appeal within three months.
The period of limitation for filling of an appeal against any order or decision of the Administrative Tribunal is three months and an aggrieved person may prefer an appeal beyond the period of three months but not later than six months if he can satisfy the Administrative Appellate Tribunal that he has been prevented by sufficient cause from preferring an appeal within the period of limitation. The Administrative Appellate Tribunal has power to condone the delay of three months if it is satisfied with the reason for not filing the appeal within the period of limitation. In the alternative, it can entertain an appeal if it is filed within six months from an order or decision of the Administrative Appellate Tribunal after condoning the delay of three months. After the expiry of six months, the Administrative Appellate Tribunal has no power to extend the period of limitation.
The Administrative Appellate Tribunal has no power to condone the delay by beyond six months from the date of order or decision of the Administrative Appellate Tribunal.
It is a special law and this law shall prevail over any other law and for the purpose of realisation of ÔFYÕ by a financial institution, the suit shall be filed and adjudicated upon by the Artha Rin Adalat constituted under the said Ain. These provision do not prohibit specifically or impliedly a citizen to establish his title to in a civil court in respect of any property which has been mortgaged with a financial institution.
Sub-section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103.
A suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit.
Article 42 (1) of the Constitution provides that subject to any restriction imposed by law, every citizen shall have right to acquire, hold, transfer or otherwise dispose of the property. Right to property is a fundamental right. The expression ‘restriction’ has to be understood as not including ‘prohibition’ or ‘extinction.’ In placing a restriction on the right of the property, the Parliament cannot prohibit the exercise of right or extinguish the right. If any restriction imposed by law has the effect or confiscating a property without acquisition or nationalization under the authority of law. The restriction will be violative to article 42. The right to property is also protected by Article 31 which mandates that no action detrimental to the property can be taken except in accordance with law. The inclusion of the word ‘in accordance with law’ in article 31 would have subjected to any restriction imposed by law to a stricter scrutiny by the court. A law interfered with the right to property will not be reasonable under Article 31 if it does not sub-serve any legitimate governmental interest. The combined effect of articles 31 and 42 is that any acquisition, requisition or nationalisation of the property to be valid must be for a public purpose but otherwise not.
If the plaintiffs’ title is declared naturally the Judgement debtors title in respect of the said property would be clouded. Whatever, title the decree holder bank got in respect of the mortgaged property is subject to the right, title and interest of the Judgement debtors had in the said property. By reason of the decree, the decree holder bank will not get a better title than what the mortgagors had therein. If the mortgagors had no right, title and interest, the mortgagee will not acquire any right therein which is pure and simple.
The financial institutions should be cautious at the time of advancing money to the mortgagors by creating equitable mortgage or any other type of mortgage in respect of any immovable property. The real owner’s title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor’s title in the said property. Fraud vitiates a decree and the real owner can also ignore the decree under Section 44 of the Evidence Act.
Jun - 2022
