ABANDONED PROPERTIES (SUPPLEMENTARY PROVISIONS) REGULATION, 1977
(MARTIAL LAW REGULATION NO. VII OF 1977)
Paragraph—6(2)
It is clear from a reading of sub-paragraph (2) th it intended to confer a benefit upon those owners of abandoned properties who in pursuance of a judgment of a Court of law have actually and effectively received back the possession of the property either by delivery of possession or by other appropriate means in .pursuance of such judgment. The essence of the matter is that the owner must receive back possession of the property actually and effectively from those who took it over as abandoned properties. The actual and effective restoration or transfer may take place either by physical delivery of possession or by other appropriate means. The words “other appropriate means” in the context in which they have been used cannot but mean an effective restoration or transfer to the owners by means other than delivery of possession, i,e., a handing over of possession by another appropriate means which is akin or similar to delivery of possession.
Bangladesh Italian Marble Works Ltd. and anr. Vs Government of Bangladesh and anr. 20 BLD (AD) 154.
Ref: Nasiruddin vs. Govt. of Bangladesh, 32 DLR (AD) 216; Ehteshamuddin vs. Bangladesh, 33DLR (AD) 1 54—cited.
BANGLADESH ABANDONED PROPERTY (CONTROL, MANAGEMENT AND DISPOSAL) ORDER, 1972 (P0 16 OF 1972).
Article—2
Mere omission to observe as to whether the petitioners were in this country on 28.2.72 is immaterial. It has been found by the Court of Settlement that the predecessor of interest of the petitioners died here in 1982 leaving behind the petitioners as his heirs who have inherited the said house as successor-in interest and he continuously lived in this country and paid income tax of his business till his death. The government most illegally declared the case property as abandoned property.
Bibi Zarina and others Vs Government of Bangladesh and others, 2O BLD (HCD) 164.
Article—2(1)
When it is proved that the alleged owner of the property was not present in Bangladesh during the relevant period, his whereabouts were not known and he ceased to occupy, supervise or manage the property in person, such a property easily comes within the definition of abandoned property as envisaged in Article 2(1) of P.O. No. 16 of 1972.
Bangladesh vs. Md. Suruzzamal and others, 15 BLD (AD) 146.
Ref: MIs. Khan Brothers Ltd. vs. Government of Bangladesh, 27 DLR 423; Government of the Peoples Republic of Bangladesh vs. MIs. Speedbird Navigation Co. 30 DLR (SC) 101; Bangladesh vs. Messrs A.TJ. Industries Ltd., 28 DLR (AD) 120; Gannyson vs. Sonali Bank, 36 DLR (AD) 146—Cited.
Article—2(1)
From the definition it appears that an abandoned property means any property owned by a person (1) who is not present in Bangladesh, or (2) whose whereabouts are not known, or (3) who has ceased to occupy, supervise or manage in person his property. So, the disputed house did not come within the definition of ‘abandoned property’ of the case property as defined in Article 2 of P.O. No. 16 of 1972 and as such the enlistment as abandoned property in the ‘Kha’ list of abandoned property is without lawful authority.
Masuda Anowar Vs Bangladesh and another, 17 BLD (HCD) 427.
Articles—2(1), 14 and 24
Abandoned Property has been defined in Article 2(1) of P. 0. 16 of 1972 wherein it has been said that if a person ceased to occupy or manage in person his property the same is an abandoned property. Article 14 of P.O. 16 of 1972 clearly speaks that any property vested in the Government under the Order shall be exempt from all legal processes and Article 24 speaks that anything done or any action taken or any order passed under the Order shall not be called in question in any court. Hence, from the definition of abandoned property and on the basis of the averment of the plaintiff himself when he failed to manage and supervise the property in any manner the property vested in the Government as an abandoned property. Therefore, the High Court Division was correct in holding that the suit was filed for declaration of title and recovery of khas possession is not maintainable.
Syed Afzal Nowab Vs G. M. Yousuf and ors., 18 BLD (AD) 240.
Article—2(5)
‘Property’
Under Article 2(5) of the Order property means property of any kind, movable or immovable and includes any right or interest in such property and any debt or an actionable claim, any security or negotiable instrument, any right under a contract and any industrial or commercial undertaking. The definition of properties as given in Article 2(5) includes right under a contract.
Govt. of Bangladesh Vs Saber Ahmed, 18 BLD (HCD) 498.
Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (LIV of 1985)
Section—5(1) (b)
Both Article 7 of P.O. 16 of 1972 and Section 5(1)(b) of Ordinance 54 of 1985 require notice to be issued upon the person whose property is declared an abandoned property or enlisted in the ‘Kha’ list, but no such notice had been issued and served upon the petitioner in violation of the aforesaid provisions of law even though the petitioners have always been in possession of the case property. Where a statute requires a notice to be given before taking action, service of notice on the concerned party becomes mandatory.
Mrs. Jebon Nahar and others Vs. Bangladesh and others, 18 BLD (HCD) 141.
Article—9
The property vested in the Government in 1972 free from encumbrances subject to, of course, to liabilities that may be determined under Article 9. So, after the vesting of property in favour of the Government purported cancellation of lease granted to Mauzar and Company has no legal effect.
Govt. of Bangladesh Vs Saber Ahmed, 18 BLD (HCD) 498.
Article—15
It is now well-settled that the order passed by the prescribed authority under Article 15 of P.O. 16 of 1972 is a statutory order and as such it is binding on the Government.
Mojibur Rahman Vs. Bangladesh and others, 15 BLD (HCD) 619.
BANGLADESH ABANDONED PROPERTY (BUILDING IN THE URBAN AREAS) RULES, 1972
RuIe—10 (4A)
Subordinate legislation cannot give retrospective effect unless authourised by the parent legislation. The new sub-rule 4A of Rule 10 neither says that it will have retrospective effect nor is there any authority in President’s Order 16 of 1972 to make rules with retrospective effect. Therefore, the auction sale having taken place before the insertion of the new sub-rule 4A, the sale would be governed by the law as it existed then as sub-rule 4.
It is a matter of construction whether the execution of a further contract is a condition of the contract or a mere expression of a desire of the parties as to the manner in which the transaction already agreed to will go through. In the former case, there is no enforceable contract either because the condition is nullified or because the law does not recognizes a’ contract to enter into a contract. In the latter case, there is a binding contract and the reference to the mere formal contract may be ignored. In such cases, refusal to execute formal contract cannot give rise to an action for breach of contract.
United Commercial Bank Ltd. v. Bangladesh, represented by the Secretary to the Ministry of Works, 22 BLD (AD) 70.
Ref: Shyamakant Lal v. Rambhajan Singh AIR 1939 FC 74; Sayeedur Rahman v. The Chief Election Commissioner 17 DLR (SC) 23; Attorney General v. Vernazza (1960) AC 965; Purshottam v. State of Madhya Pradesh AIR 1980 (SC) 1872; Hukam Chand v. Union of India AIR 1972 (SC) 2427; Goshto Bihari v. Surs Estate Ltd. AIR 1960 Cal. 752; Namayya v. Union of India AIR 1958 AP 533; Currimbhoy & Co. Ltd. v. Creet and others AIR 1933 PC 29.
Rule—1O (4A)
Rule 10(4A) provides that notwithstanding anything contained in sub-Rule (4), if the building under auction is under the possession of a duly authourised person, it shall, subject to the terms and conditions specified in the auction notice, be offered to him at a price quoted by the highest bidder in the auction.
In the instant case the question of retrospective effect of such amended Rule does not arise at all. Firstly, the tender procedure was continuing and it was not concluded. Secondly, during the pendency of the suit this amended Rule came into force and thirdly, the plaintiff being a lawful lessee in the premises participated in the auction and subsequently offered the highest bid money to the defendant Nos. 1 and 2 for purchasing the same. The sale by tender was not concluded and the tender procedure was continuing and during pendency of the suit this amended Rule (4A) came into force, the plaintiff is entitled to have the benefit of this amended Rule, although it was not given any retrospective effect. The plaintiff is claiming a right to purchase the property in the instant suit and during pendency of the suit by operation of law such right was given to him and as such he is entitled to have that right, although the Suit was filed earlier.
M/s United Commercial Bank Ltd. Vs M/s Rahimafrooz Batteries Ltd. and ors. 20 BLD (HCD) 296.
Ref: Shyamakant Lal Vs. Rambhajan Singh, AIR 1939 Federal Court 74—Cited.