Abdus Satter (Md) (Appellant)
Bangladesh and others (Respondents)
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
August 28, 1995.
Shamsul Haque Siddique, Advocate-on-Record —For the Appellant.
Ex-parte- the Respondents.
Civil Appeal No. 27 of 1995.
(From the judgment and Order dated 8-1-95 passed by the High Court Division in Writ Petition No. 2595 of 1994)
Mustafa Kamal J.- This appeal by leave by the writ petitioner is from the summary rejection of the Writ Petition No. 2595 of 1994 on 8-1-95 by the High Court Division.
2. In 1987 the appellant constructed a four storied residential building on 7 kathas of land in CS plot No. 133 Part. Mouza Bramancharan, JL No. 342, PS Sabujbagh, District Dhaka as per sanctioned plan of the former Dhaka Improvement Trust dated 22-5-80 (renewed 7-6-83) on obtaining house building advance from his employer Bangladesh Shilpa Bank and on obtaining loan from the House Building Finance Corporation, as also from his personal savings and borrowing from friends and relations. He has been living therein since 1987. On 5-5-94 the Authorised Officer of the present Rajdhani Unnayan Kartripakkha, shortly Kartripakkha, issued him a notice (Annexure C) asking him to show any sanctioned plot which he may have had in respect of the said four storied building. The Appellant showed cause on 7-5-94 (Annexure C) stating the particulars of his sanctioned plan and further stating that a neighbour of his has falsely complained to the Kartripakkha that his building has leaned on one side which is absolutely baseless. He has himself got his building examined by some experienced engineers who have opined that the building has not leaned at all. The appellant has long standing litigation with the said neighbour concerning boundary and road and he has been instrumental in harassing the appellant. After long seven months the Authorised Officer of the Kartripakkha issued a notice on the appellant dated 21-12-94 (Annexure D) asking him to show cause within 24 hours as to why his building will not be demolished after cancellation of the sanctioned plan for not keeping spaces on the north and west of the building as per sanctioned plan and for the building becoming dangerous for the security of its residents and the neighbouring people owing to its leaning on the north-western side. The appellant showed cause within 24 hours on 22-12-94 (Annexure E) stating that he kept the required spaces at the time of construction in 1986 but owing to fresh measurement for settling boundaries with neighbouring people the required spaces were shortened unintentionally and for reasons beyond his control. He further denied that the building leaned on any side. He stated, that he has invested his life’s savings and also taken loan from the House Building Finance Corporation and so no injustice should be done to him. Before the expiry of 24 hours the Kartripakkha by a Memo, dated 22-12-94 (Annexure-F) referred to its earlier Memos dated 5-5-94 and 21-12-94 and stated that the appellant was directed to demolish/remove the construction outside of the sanctioned plan by those Memos. But he has failed to do so and, as such, his sanctioned plan is cancelled under section 9 of the Building Construction (Amendment) Act. 1990. The appellant was also directed to demolish the unauthorised construction immediately on receipt of the Memo or else necessary steps will be taken to demolish the same. Thereafter the appellant filed the instant writ petition challenging the last order dated 22- 12-94.
3. The High Court Division summarily rejected the writ petition on the ground that the appellant admitted slight deviation from the approved plan due to change of the boundary and as he was given an opportunity to explain his position the principle of natural justice was not violated.
4. Leave was granted to consider the submission that under clause (b) of sub-section (1) of section 3B of the said Act the appellant was entitled to 7 days’ notice to show cause, but he was given only 24 hours notice. Under Sub-section (3) of section 3B of the said Act he was to be given a reasonable opportunity of being heard before any order of cancellation of his sanctioned plan could be made. Both these mandatory provisions were violated by the Kartripakkha. The shrinkage of the spaces required to be kept on the northern and western sides of his building was adequately explained by him but the Kartripakkha neither gave him any opportunity to explain the shrinkage nor considered the explanation given by him to be unsatisfactory. Also, there is no power of demolition of a building on the part of the Kartripakkha if it leans on one side and in any case a building cannot be demolished unless it comes within the mischief of sub (5) of section 3B which is not attracted in the facts and circumstances of the case. Also the Kartripakkha never asked the appellant to demolish the building within any stated period and, as such, the reason for cancellation of the sanctioned plan and direction to demolish the building have been given without any statutory basis.
5. The respondents have not entered appearance in spite of service of notice.
6. Heard Mr. Shamsul Haque Siddique, learned Advocate-on-Record for the appellant.
7. Since the facts alleged by the appellant have not been controverted by the respondents we take them to be correct.
8. There seems to be substance in the appellant’s contention that to answer a notice of breach of any of the terms and conditions subject to which sanction was granted to construct a building under the Building Construction Act, 1952, the period of notice shall not be less than seven days, but the Authorised Officer gave the appellant only 24 hours notice on 21-12-94 (Annexure D), in violation of clause (b) of sub-section (1) of section 3B of the said Act. Under sub-section (3) of section 3B, the Authorised Officer is required not only to consider the cause shown, namely, the appellant’s reply dated 22-12-94 (Annexure-E), but also to give the appellant an opportunity of being heard. No hearing was given to the appellants. The impugned order dated 22-12-94 (Annexure F) was passed before expiry of 24 hours. This action was nothing but riding roughshod over the procedural safeguards guaranteed to the owners and occupiers.
9. By the impugned notice dated 22-12-94 the appellant’s approved plan dated 22-5-80 was cancelled for the reason that he failed to implement the direction of the Authorised Officer contained in his Memos, dated 5-5-94 (Annexure B) and 21-12-94 (Annexure D) to demolish/remove the unauthorised portion of his building outside of the sanctioned plan. No such notice was issued by the aforesaid Memos. By Memo. dated 5-5-94 (Annexure B) the appellant was only asked to show if he has any sanctioned plan for the building in question. He replied to the said Memo. on 7-5-94 (Annexure C) and stated the particulars of his sanctioned plan. By Memo, dated 21-12-94 (Annexure D) the appellant was directed to show cause why his sanctioned plan shall not be cancelled, failing which necessary steps will be taken to demolish the building. He showed cause on 22-12-94, but on no account it can be said that he failed to implement the directions contained in the said two Memos. The appellant’s sanctioned plan has therefore been cancelled for extraneous reasons and cannot be sustained.
10. By the impugned order, the Authorised Officer also directed the appellant to demolish/ remove the unauthorised construction or else, necessary steps would be taken to demolish the same, but no order of demolition can be passed under sub-section (5) of section 3B of the said Act unless finding is given that the disputed construction answers the description contained in clause (a) or (b) or (c) of sub-section (5). The disputed building in fact, does not fit in with the descriptions in the said clauses (a) or (b) or (c).
11. Hence for all the reasons above, the High Court Division was not justified in rejecting the w petition summarily. The impugned order of the Authorised Officer lacks any legal basis and cannot be sustained. It is accordingly, held to have been passed without lawful authority and of no legal effect. The appeal is allowed without costs.
Source: 48 DLR (AD) (1996) 180