Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

 

 

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

(PO 16 of 1972)

Article—2

The petitioner is the original lessee of the building in question and as such it cannot be treated as abandoned property as defined in P0 16 of 1972 and accordingly the inclusion of the petitioner’s building in the abandoned properties list has been without lawful authority.

Abul Hossain Khan Vs Bangladesh and others, 20 BLD (HCD) 442.

 

Section—5 Proviso (a)

The disputed property was declared as an abandoned property under P.O. 16 of 1972 as far back as in 1972, since when the property government is in possession thereof. Proviso (a) to Section 5 contemplates a legally enforceable decree. The exparte decree obtained by the writ petitioner is a declaratory decree simpliciter without any prayer for recovery of possession, when, admittedly, the writ petitioner was not in possession thereof. Such a decree is not within the contemplation of proviso (a) to Section 5.

Bangladesh Vs Anwar Ahmed and others, 18 BLD (AD) 282.

 

Sections—5 and 7

The onus is on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis for treating the property as. Abandoned property merely because the same is disputed by the claimant.

Govt. of Bangladesh. Vs. Md. Jalil and others, 16 BLD (AD) 21.

 

Section—5(1) (b)

An abandoned property in possession of any person, whether can be included in, the list of abandoned properties called as the (Kha) list in respect of which notice for surrendering or taking possession under the said order has been issued—Listing of the properties in the (Kha) lists and publication thereof in the Official Gazette in respect of which notices under Article 7(3) of President’s Order No. 16 of 1972 have not been issued, whether will be per se illegal.

If a property answers to the definition of abandoned property as stated in Article 2 of the President’s Order No. 16 of 1972, then it is automatically vested with the Government in view of Article 4 thereof on the commencement of the said Order.

An abandoned property in possession of any person can only be included in the list of abandoned properties called as the (Kha) list in respect of which notice for surrendering or taking possession as abandoned property under the said Order has been issued. This notice must be the notice as stated in Article 7(3) of the said Order and prescribed by rule 3(8) of the Bangladesh Abandoned Property (Taking Over Possession) Rules, 1972.

The listing of the properties in the (Kha) lists of abandoned properties and publication thereof in the Official Gazette in respect of which notices under Article 7(3) of the President’s Order No. 16 of 1972 have not been issued will be per se illegal and then the issue whether such properties are abandoned properties or whether the claimants thereof have got title thereto will not be required to be decided.

Amela Khatun and others vs. Chairman, Court of Settlement and another, 13 BLD (HCD) 517

Section—5(1)

The possession of the building in question was not taken over by the Government in view of the certificate issued by the Government and produced by the respondent not considered by the Court of Settlement, stating that the property was not an abandoned property as has been rightly found by the High Court Division and that the respondent successfully rebutted the persumption attached to the list published under section 5(1) of the Ordinance that the property is an abandoned property and vested in the Government but the contention that the respondent was owner of the building on the basis of civil court decree in a suit for specific performance of contract is no more tenable in law.

Bangladesh Vs Md. Shajahan, 2O BLD (AD) 166.

Ref: C.Q. M. H. Md. Ayub All Vs. Bangladesh and ors and Mrs. Laila Ahmed Vs. The Court of Settlement and ors. 47 DLR(AD)71; Government of Bangladesh Vs. Ashraf All, 46DLR(AD) 161—Cited.

 

Section—5(1) (b)

Since the civil suit was pending in the Court of law in respect of the house in question the Government was not entitled to enlist the same in the list of abandoned buildings.

Musammat Salma Begum and another vs. Secretary, Ministry of Housing and Public Works Department, Govt. of Bangladesh and ors., 19 BLD (HCD) 368.

 

Section—5(1) (a) (b)

Publication of list of buildings in official gazette.

If the suit building was included in the list of abandoned buildings published in the official gazette in contravention of the provision of Section 5 (1) (a) (b) of the Ordinance, the Civil Court has jurisdiction to try the suit. Mere inclusion of a property in the list of abandoned buildings does not take away the jurisdiction of the Civil Court to entertain a suit challenging its legality.

When it is found that the plaintiff is entitled to a decree that the suit property was not an abandoned property and the Government having disclaimed the same as requisitioned property, the latter is liable to restore its possession to the plaintiff and also to pay rental compensation under the Requisition of Property Act for its use and occupation from the time of gazette notification till the possession of the property is restored to the plaintiff.

Most. Nazibunnessa vs. Md. Abdus Sobhan Mia and others, 15 BLD (HCD) 621.

 

Section—5(1) (b)

Since no notice as contemplated under section 5(1) (b) of the Ordinance was issued to the respondent or any other person, inclusion of the disputed property in the ‘Kha’ list of the abandoned buildings is without lawful authority.

Govt. of Bangladesh and others Vs Bibi Marium and others, 21 BLD (AD) 89.

Ref: Fatema Begum vs. Bangladesh. 42DLR342; Bangladesh vs. Amela Khatun and ors, 53 DLR (AD) 55—relied.

 

Section—5(1) (2)

Publication of list of buildings and presumption of correctness of the entries in the Gazette.

Section 5(2) of the Ordinance clearly provides that the list published under subsection (1) Shall be conclusive evidence of the fact that the buildings included therein are abandoned properties and have vested in the Government as such.

Govt. of Bangladesh vs. Md. Jalil and others, 15 BLD (AD) 175.

 

Section—5(2)

Once a building is included in the list of abandoned properties it is conclusive evidence that the building in question is an abandoned property where the owner either was not present in Bangladesh or his whereabouts were not known or he ceased to manage or occupy the property at the time when P.O. 16 of 1972 was promulgated on 16.2.1972. This presumption is, of course, a rebuttable one. It is for the claimant to show that the original owner was present in Bangladesh or his whereabouts were known or he did not cease to occupy or manage the property in question at the relevant time. Since the notification in the official gazette carries a presumption that the building in question is an abandoned property, it is exempt from any legal process be it an auction sale by the Govt. itself or through Court.

Rahima Begum and others Vs the Court of Settlement and others, 17 BLD (AD) 118.

 

Section—5(2)

Ordinance 54 of 1985 has created a special forum to deal with a property which has been enlisted under Section 5 as abandoned property. A special procedure has also been made therein to decide those cases. A legal presumption has also been attached under section 5(2) of the Ordinance to the list published under sub-section (1) as conclusive evidence that the enlisted property is an abandoned property.

Bangladesh Vs Anwar Ahmed and others, 18 BLD (AD) 282.

 

Section—5(2)

Sub-section (2) of section 5 of the Ordinance provides that the lists published under sub-section (2) shall be conclusive evidence of the fact that the buildings included therein are abandoned property and have vested in the Government as such. Petitioner failed to rebut je conclusive legal presumption as provided in section5 (2) of the Ordinance.

Asma Begum Vs Bangladesh and others, 21 BLD (AD) 134.

 

Sections—5(2) and 7

Section 5(2) of the Ordinance provides that the lists published under sub-section (1) shall be conclusive evidence of the fact that the buildings included therein are abandoned property and have vested in the Government as such. Section 7 of the Ordinance says that a person claiming any right or interest in any such building may make an application to the Court of Settlement for exclusion of the building from such list, etc. on the ground that the building is not an abandoned building and has n& vested in the Government under P.O. 16 of 1972 or that his right or interest in the building has not been affected by the provisions of that order.

Section 7 enjoins upon the claimant before the Court of Settlement to prove that the property is not an abandoned property, in a like manner a plaintiff is to prove his case and the Government, like that of a defendant, is under no legal obligation to prove that the property is an abandoned property or to disclose the basis of treating the property as an abandoned property. Respondent successfully rebutted the presumption attached to the list published under sub-section (1) of Section 5 of the Ordinance that the property is an abandoned property and vested in the Government.

Bangladesh Vs Md. Shajahan, 20 BLD (AD) 37.

Ref: Govt. of Bangladesh vs. Md Jalil and ors, 48DLR (AD) 10—relied upon.

Ref: C. Q. M. H. Md. Ayub Ali vs. Bangladesh, 47DLR (AD) 71; Government of Bangladesh vs. Ashraf Ali, 49DLR (AD) 161.

 

Section—7

Persons claiming interest in listed abandoned buildings may apply to the Court of Settlement.

Section 7 of the Ordinance provides that a person claiming any right or interest in any such building may make an application to the Court of Settlement for exclusion of such building from such list on the ground that the building is not an abandoned one and it has not vested in the Government under P.O. No. 16 of 1972 or that his right or interest in the building has not been affected by the provision of that Order. The onus, therefore, is squarely on the claimant of the building to prove that the building is not an abandoned property. The Government is under no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property.

Govt. of Bangladesh vs. Md. Jalil and others, 15 BLD (AD) 175.

 

Section—7

A finality having been given to the publication of list of all abandoned buildings upto 1986 in Abandoned Buildings (supplementary provisions) Ordinance, 1985, the eviction notice on the plea that the property is an abandoned property is illegal and without jurisdiction.

Bangladesh, through the Secretary, Ministry of Works and others Vs Sanjit Kumar Datta and others, 20 BLD (AD) 44.

 

Section—7

Section 7 enjoins upon the claimant before the Court of Settlement to prove that the property is not an abandoned property just as a plaintiff is to prove his case, and the Government is under no legal obligation to prove that the property is an abandoned property or to disclose the basis of treating the property as an abandoned property.

Bangladesh Vs Md. Shajahan, 2O BLD (AD) 166.

Ref: Govt. of Bangladesh vs. M. Jalil and ors, 48DLR (AD) 10—relied.

 

Section—7

The Court of Settlement is authourised under section 7 of the Ordinance to deal with the entire question of abandonment of the property and that is the proper forum for complete relief of the writ petitioner. So it cannot be said the Court of Settlement does not offer an equally efficacious remedy. The plea taken by the respondent relying on the decisions reported in 42DLR (AD) 86 and 5 1DLR (AD) 25 that the writ petitioner could invoke the writ jurisdiction without having recourse to the Court of Settlement, does not seem tenable because the jurisdiction of the Court of Settlement in the instant case in including the property in the list of abandoned properties cannot be said to be ex-facie void.

Bangladesh and another Vs Habib Zamil, 21 BLD (AD) 36.

 

Sections—7 and 10

The order of the Court of Settlement Constituted under the provision of section 7 of Ordinance LIV of 1985 for restoration of the property in question to the petitioner is final and binding upon the Government in view of section 10 of the said Ordinance.

Though no specific provision has been made in the Ordinance for the execution of the order of the Court of Settlement, the Government is under a legal obligation to give effect to the decision of the Court of Settlement.

Hafeezuddin Ahmed vs. Govt. of Bangladesh and another, 15 BLD (HCD) 98.

 

Section—7(1)

Period of limitation

The case has been dismissed by the Court of Settlement as barred by limitation holding that the petitioner failed to file the petition within 108 days from the date of publication of the list in the official gazette as per provision of section 7(1) of the Ordinance. It is difficult to understand under what reason the period of limitation has been fixed at 108 days. Either it would be one month, three months or six months but section 7(I) of the Ordinance has provided the limitation for 108 days which means 3 months 18 days and such period of limitation could nowhere be found in the Limitation Act or in any other special Act providing limitation, This may be through inadvertance or mistake that 180 days has been printed as 108 days. The Ministry of Law. Justice and Parliamentary Affairs shall look into the matter and if it is a mistake in providing limitation of 108 days instead of 180 days, they should come out with an appropriate amendment in the section at the earliest in order to avoid mischief of limitation for wrong printing of the period of limitation in the Ordinance.

Md. Jamal Hossain and others Vs Chairman, 2nd Court of Settlement, Bangladesh Abandoned Buildings, Dhaka and others, 19 BLD (HCD) 432.

Ref: 1989 BLD 257; 6 DLR 246; AIR 1974(SC) 1545; 31DLR16; 1980 PLD (Lahore) 40; 1967 PLD (Karachi) 800; 1958 PLD (Lahore) 131—Cited.

Section—10 Sub-section 6

It provides that the decision of the Court of Settlement shall be final and shall be binding on all parties concerned and shall not be called in question in any other Court.

Mrs. Nurjahan Begum vs. Bangladesh and others, 14 BLD (HCD) 559.

 

Section—10 (5)

Law enjoins upon the Court of Settlement, a duty to make a decision on the matters in issue. Dismissing a case for default without arriving at a decision with regard to the claims of the parties is illegal and without lawful authority.

Maqbul Hossain vs. Bangladesh and others, 13 BLD (HCD) 655.

Ref: 45 D.L.R. (HCD) 304, and Writ Petition No. 832 of 1988 (HCD)—Cited.

 

Section—10 (5)

The Court of Settlement under the law is not empowered to dismiss a case pending before it for default simpliciter. The law requires that a decision will have to be given on the issue, otherwise, the order passed by the Court of Settlement must be held to be without lawful authority and of no legal effect.

Chand Miah Talukder vs. Chairman, Court of Settlement, Bangladesh Abandoned Building and others, 13 BLD (HCD) 399.

 

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

 

 

Abandoned property, release of — the petitioner being a citizen of Bangladesh and residing in Bangladesh although, her property, under no justification, can be as abandoned property — relied on 40 DLR (AD) 116. [Para-11]

Quamrunnessa Vs. Bangladesh & Ors. 4BLT (HCD)-3.