Appellate Division Cases
(Civil)
PARTIES
The Secretary, Ministry of Works and Urban Development, Government of Bangladesh
another’s ………………………………………Appellant
-Vs-
Mrs. Rowshan Ara Begum and another ……………………………Respondents
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
M.A. Aziz J
To exclude the property from the list of abandoned properties, “kha list” .
The Abandoned Buildings (Supplementary Provisions) Ordinance, 1945 (Supplementary LIV of 1985) Section 5(2), 7.
The Constitution Article 102(2).
Bangladesh Abandoned Property (Control, Manage and Disposal) Order, 1972 (Preseidng’s Order No. 16 of 1972).
Hazerullah Vs Chairman, Court of Settlement in (1998) 5 BLC(AD) 42.
Bangladesh Vs. Md. Shajahan in (2000) 20 BLD(AD), 166.
Bangladesh Vs. Ashraf Ali in 49 DLR (AD), 161.
Asma Begum Vs. Bangladesh in (2001) 21 BLD(AD) 134.
Bangladesh Vs. Md. Jalil in 48 DLR(AD)10.
The notice was served on the claimant of the property or on the vendor of the claimant of the property prior to the listing of the property as abandoned property and such the listing of the property was not legal, that the finding of the Court of Settlement as regard the oral gift was contrary to law and that the Court of Settlement upon exceeding its jurisdiction rejected the oral gift ,made by the original owner of the property to her daughter, Anwari Khatun, that claimant of the property has mutated her name in the record of rights and paying the taxes and other dues to different authorities and this fact is sufficient to show that the property inquisition “is free from encumbrances (6)
The High Court Division while exercising its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded (17)
Civil Appeal No. 1 Of 1999
(From the Judgment and Order dated November 3,1991 passed by the High Court Division in Writ Petition No. 448 of 1988)
A. J. M. Mohammad AH, Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record. For the Appellants
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman Advocate on-Record. For the Respondent No. 1
Not represented Respondent No. 2
JUDGMENT
Md. Ruhul Amin J:- This appeal, by leave is against the judgment dated November 3, 1991 of the High Court Division in Writ Petition No. 448 of 1988 making the Rule absolute and thereupon declaring that the property in question has been listed in the ‘kha’ list of the abandoned buildings without lawful authority and the same is of no legal effect and that made further direction to the Government to exclude the property from the list of abandoned properties.
2. The writ petition was filed challenging legality of the judgment of the Court of Settlement passed in Case No. 119 of 1987 (Kha-145-Tin-shed Colony, Block- D) Quarter No. 169 (Holding No.38 ), Tin shed Colony, Mohammadpur, Dhaka. The Court of Settlement by the said judgment dismissed the case and thereupon declared that the property in question is an abandoned property and the listing thereof is quite legal. The case of the Respondent No. 1, who was petitioner before the Court of Settlement, was that property in question was allotted on 24.8.1957 to Sahera Khatun widow of late A. Gafur, that said Sahera Khatun orally sifted the property to her daughter Anwara Khatun on 16.4.1973, and in confirmation thereof affirmed an affidavit before the Magistrate, First Class, Dhaka on 14.7.1973, that Sahera Khatun gifted the property in presence of Amanullah Munsiff, Abdul Hashim and Md. Raizuddin, that Sahera Khatun delivered possession of the gifted property to the done, Anwari Khatun and she on 22.10.1979 transferred the property by a registered deed to the Respondent No. 1 , that the Respondent No. 1 obtained permission from the DIT (now RAJUK) for making construction and also obtained loan from the House Building Finance Corporation, that the Respondent No. 1 is in possession of the building constructed by her, that she was surprised to see that her building has been listed as an abandoned property in the ‘kha’ list and the said list has been published in the official gazette. 3. The case before the Court of Settlement was contested by the Government contending primarily that Sahera Khatun and her daughter Anwari Khatun were absent from Bangladesh and that their whereabouts were not known when the law relating to abandoned property came into force, that the papers relating to gift have been manufactured to grab the property, that as the property vested in the Government on 28.2.1972, transfer as claimed to have been made by Anwari Khatun to the Respondent No. 1 was not valid that there is no evidence that Anwari Khatun was the daughter of Sahere Khatn and that their where about are not known till today, that name of Anwari Khatun and Roushan Ara were mutated in the record of the Housing Estate without approval of the concerned authority and that the said mutation was manipulated beyond the knowledge of the concerned authority.
4. The Court of Settlement dismissed the case on the findings that no oral evidence has been adduced from the side of the petitioner, i. e Respondent No.l herein, that Sahera Khatun was present in Bangladesh at the relevant time and her whereabouts were known, that the alleged oral gift has not been established by examining the persons in whose presence the said gift claimed to have been made, that in the absence of evidence it is difficult to accept that Sahera Khatun was present in Bangladesh after liberation and that the gift as claimed to have been made by Sahera Khatun is genuine, that as whereabouts of Sahera Khatun were not known, the oral gift can not be considered as genuine, that as the whereabouts of Sahera Khatun were not known and consequent thereupon as the oral gift said to have been made by Sahera Khatun to his daughter Anwari Khatun cannot be consider as genuine and that as Anwari Khatun did not acquire any right, title and interest in the property in question from Sahera Khatun, as such Respondent No. 1 did not acquire any title in the property in question from Anwari Khatun.
5. As against the judgment of the Court of Settlement the Respondent No. 1 moved the High Court Division in writ Jurisdiction and obtained the Rule.
6. The High Court Division made the rule absolute on the findings that the Respondent i.e. the appellants herein, did not challenge ownership of Sahera Khatun but they challenged ownership of Sahera Khatun but they challenged ownership of Sahera Khatun’s daughter Anwari Khatun, that the sale deed by which Roushan Ara Begum (Respondent No.l ) acquired the property being registered one recital therein can be considered correct and that burden is on the person who challenge the correctness of the recital in the registered deed to establish that the said recital is not correct, that the fact recited in the registered deed are the facts stated in the affidavit affirmed by Sahera Khatun in confirmation of the oral gift in favour of Anwari Khatun, that burden of establishing the fact that the property so listed and the list so published in the gazette under the provision of the ordinance No.54of 1985 is valid, that he Respondents are required to prove that the property listed in the official Gazette is an abandoned property and that in case of discharge of that burden by the official authority the claimant of the property is required to establish that the property is not an abandoned property, that the Court of Settlement misplace the onus upon the petitioner (herein Respondent No.l) to prove that the whereabouts of the original owner were known to the Government and that also the on us to establish that the property is not an abandoned property, that fact of making oral gift by Sahera Khatun to her daughter Anwari Khatun is found place in the affidavit affirmed by donor in confirmation of the oral gift made to Anwari Khatun and that the fact of making oral gift by Sahera Khatun to her daughter Anwari Khatun and that acceptance of gift and making delivery of possession of the property gifted to the done finds place in the rerecita of the affidavit as well as the registered deed of sale, that the Court of Settlement is not competent to go into the question of facts which have found place in the registered instrument unless these some have been otherwise decided by a competent civil Court, that the Court of Settlement ought not have challenged the correctness of the facts recited in the affidavit affirmed before the Magistrate in confirmation of the oral gift to Anwari Khatun, since the recital made in the affidavit were not questioned by the Government, the finding of the Court of Settlement that where abuts of the Sahera Khatun and Anwara Khatun were not known and that fact of making gift was not established by the claimant of the property are not based on materials brought on record by the parties, rather the said findings are contrary to the materials on record, that the property has been listed as abandoned property although the conditions precedent for listing the property as abandoned property as are in section 5 of the Ordinance No.54 of 1985 were not fulfilled and as such listing of the property as abandoned property was not legal, that from the Respondents’ side, herein appellants it has not been stated that the notice was served on the claimant of the property or on the vendor of the claimant of the property prior to the listing of the property as abandoned property and such the listing of the property was not legal, that the finding of the Court of Settlement as regard the oral gift was contrary to law and that the Court of Settlement upon exceeding its jurisdiction rejected the oral gift ,made by the original owner of the property to her daughter, Anwari Khatun, that claimant of the property has mutated her name in the record of rights and paying the taxes and other dues to different authorities and this fact is sufficient to show that the property inquisition “is free from encumbrances”
7. Leave was granted to consider the contentions that the enlistment of the property in the list of abandoned buildings and publication of the same in the gazette carries with it a presumption in that the property is an abandoned property and vests in the Government and thus a legal duty is cast on the claimant of the property to rebut the said presumption, but the High Court Division wrongly shifted the onus on the government in disregard of the provision in section 5(2) of the Abandoned Buildings( Supplementary Provisions) Ordinance,1985 (Ordinance No. LIV of 1985), that whereabouts of the original allottee and her daughter were not known from the very day of promulgation of the Bangladesh Abandoned Property (Control, Manage and Disposal Order, 1972 ( President’s Order No. 16 of 1972) and the owner of the property having failed to occupy, supervise or manage the property in person the property was rightly treated as an abandoned property and accordingly listed as an abandoned property and thereupon the list has legally been published in the official gazette.
8. The admitted position is that the property in question has been listed in the list of abandoned buildings and the said list has been published in the official gazette. Provision of section 5(2) of the ordinance No. 54 of 1985 (hereinafter in brief the Ordinance) reads as follows:
” (2) The lists published under sub-section 91) shall be conclusive evidence of the fact that the buildings included therein are abandoned property and have been vested in the Government as such
9. It may be mentioned that the lists of the abandoned buildings are prepared and published as per provision of section 5(1 )(a) and (b) of the Ordinance.
10. The claimant of the property for releasing the claimed property from the list of abandoned buildings is required to file petition before the Court of Settlement as per provision of section 7 of the Ordinance and the same reads as:
“7(1) Any person claiming any right or interest in any building which is included in any list published under section 5 may, within a period of one hundred eighty days from the date of publication of the list in the official Gazette, make an application to the Court of Settlement for exclusion of the building from such list or return or restoration of the building to him or for any other relief on the ground that the building is not an abandoned property and has not been vested in the Government under the President’s order or that his right or interest in the building has not been affected by the provisions of that Order”
11. The property in question has been listed in the ‘kha’ list as abandoned property and the said list as per provision of the ordinance No.54 of 1985 has been published in the official Gazettee. Section 5(2) of the Ordinance attaches statutory presumption that a particular building listed in the list of abandoned buildings and published in the official Gazette then the property so listed is an abandoned property and has vested in the Government. In such a situation if a person claiming right, title and interest therein intends to take the property out of the list of the abandoned buildings or seeks any other relief’s as provided in section 7 of the Ordinance he is required to apply to the Court of Settlement established under section 7 of the Ordinance and there he is required to establish that the property is not an abandoned property and that has not vested in the Government.
12. The provisions as are in section 5(2) and section 7 of the Ordinance clearly show that onus of rebutting the presumption, i.e. the property is an abandoned property and has vested in the Government, or in other words establishing the fact that the property is not an abandoned property and has not vested in the Government is totally on the person who challenges the presumption or in other words claiming the property and intends to take such property out of the list o( the abandoned property published in the official Gazette or for any other relief as are in section 7 of the Ordinance. In this connection reference may be made to the case of Government of Bangladesh Vs. Md. Jalil and others reported in 48 DLR(AD)10 wherein it has been held” section 5(2) of the Ordinance clearly provides that the list 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 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 not vested in the Government under President’s Order No. 16 of 1972 or that his right or interest in the building has1 not been affected by the provisions of that order.
13. The onus, therefore, is squarely 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 fats alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant’. Similar view has been expressed in the case of Hazerullah and another Vs. Chairman, Court of Settlement and another reported in (1998) 3 BLC(AD) 42. Therein it has been held “that the onus lies upon the claimant of the building to prove that the building is not an abandoned property” and that the onus lies upon the claimant of the property and that any other person claiming through the original owner to prove to establish the fact that the owner of the property or any other person claiming through the owner ‘had been present in Bangladesh or had been occupying, supervising or managing in person the disputed property’ when on 28 February, 1972 President’s Order No. 16 of 1972 came into operation. This Division in the case of Government of Bangladesh Vs. Ashraf Ali and another reported in 49 DLR(AD) ,161 has held “that the enlistment of a building under section 5(1) of ordinance 54 of 1985 raises a presumption in law that the property is an abandoned property under section 5(2) of the Ordinance.
14. This presumption is, of course, reputable presumption but respondent No. 1 failed to rebut this presumption” In the case of Bangladesh Vs. Md. Shajahan reported in (2000) 20 BLD(AD), 166 it has been held “Thus’ 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 an abandoned property or to disclose the basis of treating the property as an abandoned property” In the case of Asma Begum Vs. Bangladesh and others reported in*(2001) 21 BLD(AD) 134 it has been held that the onus lies on the claimant of the property “to rebut the conclusive evidence as provided in section 5(2)of the Ordinance”. The High Court Division in disregard of the provisions as are in sections 5(2)and 7 of the Ordinance encumbered the appellants to establish that the property in question is not an abandoned property and has not vested in the Government or that to establish the facts in the presence whereof the property can be listed as abandoned property and vests in the Government. This approach of the High Court Division was erroneous and as the High Court Division thereupon interfered with the judgment of the Court of Settlement, the judgment under appeal is not sustainable.
15. The Court of Settlement on consideration of the materials brought on record by the claimant of the property for having the property delisted from list of abandoned buildings arrived at the finding that the allottee of the property (to whom the property in question belonged and who gifted the same to her daughter and from whom Respondent No. 1 is claiming by purchase in October, 1979) was not present is Bangladesh and whereabouts of the allottee were not known at the time when President’s Order No. 16 of 1972 came into operation i.e. on February 28, 1972. It be mentioned the consistent case of the Government is that the allottee of the property Sahera Khatun was not present in Bangladesh at the time of emergence of Bangladesh and thereafter her whereabouts were not known and also on the date when P.O. 16 of 1972 came into operation. From to show that Sahera Khatun was present in Bangladesh and her whereabouts were known when P. O. 16 of 1972 came into operation. The Respondent No. 1 tried to establish that Sahera Khatun was very much in Bangladesh by producing the affidavit affirmed on 14.7.1973 before the Magistrate in confirmation of the oral gift said to have been made by Sahera Khatun in favour of her daughter Anwari Khatun on 16.4.1973. The property said to have been gifted at a time when in the background of the assertion of the appellants the property has become abandoned property.
16. The court of Settlement in the background of the facts and circumstances of the case held that the alleged oral gift was not formally proved sine the person in whose presence, as mentioned in the affidavit, were not examined and thereupon arrived at the finding that it has not been established that Sahera Khatun was present in Bangladesh and her whereabouts were known when P.O. 16 of 1972 came into operation. It is seen from the judgment of the High Court Division that the said Division discarded the aforesaid finding of the Court of Settlement placing reliance upon the affidavit affirmed by Sahera Khatun and the recitals therein as well as the recitals in the kabala executed by the donee Anwari Khatun (daughter of Sahera Khatun) and finally arrived at conclusion that Sahera Khatun was very much in Bangladesh and as such the property is not an abandoned property. The Respondent No.l has not led evidence or brought materials on record to discharge the onus of rebutting the presumption that the property is not an abandoned property and that has also not established that the property is not an abandoned property, This being the position High Court Division was in error in interfering with the judgment of the Court of Settlement.
17. The High Court Division while exercising its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded e.g. the case as the instant one. The High Court Division while examining the correctness of the judgment of the subordinate tribunal does not act as the Court of appeal and this has been held in the case of Government of Bangladesh Vs. Md. Jalil and others reported in 48 DLR(AD) 10 “The High Court Division was not a Court of appeal required to make determination of facts on its own. It could interfere with the findings of a tribunal of fact under its extraordinary jurisdiction under Article 102 only if it could be shown that the tribunal head acted without jurisdiction or made any finding upon no evidence or not considering any material evidence facts causing prejudice to the complaining party or that it had acted mala fide or in violation of any principle of natural justice.
18. In the absence of any of these conditions the interference by the High Court Division will itself be an act of without jurisdiction. It may be mentioned in the instant case there is absence of any one of the aforesaid matters or situations. In the case of government of Bangladesh Vs. Ashraf Ali and another reported in 49 DLR (AD), 161 it has been held that the High Court Division while exercising its power under certiorari in connection with the judgment of an’ inferior tribunal’ is not within its jurisdiction if it act in a manner or that considering the materials on record in the manner “in which a Court of appeal dispossess of an appeal “. In the instant case the High Court Division did this error in considering the materials on record in the manner as if it sat as a Court of appeal over the judgment of the Court of Settlement. In the case of Mostafa Kamal Vs. First Court of Settlement and others reported in 48 DLR (AD), 61 it has been held that the High Court Division in exercise of its writ jurisdiction in connection with the judgment of the Court of Settlement “cannot sit as a Court of Appeal over the judgment of the court of Settlement for re-settling questions of fact” The High Court Division in fact did that i.e. without arriving at a finding that the Court of Settlement committed any procedural eiror or that Court of Settlement had arrived at the finding as regard the material fact that Sahera Khatun was not present in Bangladesh and her whereabouts were not known when P.O. 16 of 1972 came into operation and that oral gift made by Sahera Khatun in favour of her daughter Anwara Khatun has not been proved by calling the persons in whose presence that gift said to have been made upon ignoring any material or any material fact having the bearing in making the decision in the aforesaid matter was left out of consideration. In fact the High Court Division on fresh assessment of the fact of its own resettled the question of fact upon sitting over the judgment of the Court of Settlement like the Court of appeal.
19. The learned Counsel for the Respondent submits that the property in question has been listed without serving any notice as required by the provision of Article 7 of P.O. 16 of 1972 and section 5(1) of the Ordinance No. 54 of 1985. It may be mentioned the Respondent No. 1 had no case of non-service of notice in listing the property in the list of abandoned buildings either before the Court of Settlement or in the writ petition. In the writ petition there is no averment that the property in question has been listed as abandoned property without serving notice either on the original owner or on the Respondent No. 1, nor any ground was taken in the writ petition relating to non-service of notice. The question of service or non-service of notice is a question of fact and determination thereof is required upon consideration of the evidence brought on record by the parties. As stated hereinabove the Respondent No.l either in the Court of Settlement or in his writ petition has taken any stand as to that the property has been listed as abandoned property without serving notice as required by the provision of P.O. 16 of 192 and section 5(1) of Ordinance. This being the position the Submission So made in our opinion is of no merit. In the background of the discussions made hereinabove we find merit in the appeal.
Accordingly the appeal is allowed. There is no order as to costs.
Ed.
Source : III ADC(2006), 210.