Nazmun Ara Sultana, J
Mohammad Anwarul Haque, J
Hasan Foez Siddique, J.
The constitution of Bangladesh, 1972
On the face of the admitted facts we wonder to note how lessor could claim enhanced amount where the lessee-petitioner paid the entire amount of lease money in terms of admitted allotment order. Moreover, in pursuance of the payment of entire lease money petitioner was handed over the physical possession of the lease property on 23.05.2006 and thereafter started dragging to execute the deed in favour of the lessee and this conduct of the lessor as a senior public servant is highly undesirable and also to be deprecated. .
For the Petitioners
Alam, Senior Advocate, instructed by Syed
Mahbubor Rahman, Advocate-on-Record.
For Respondent : Fida M. Kamal,
Senior Advocate with Mr. Yousuf Hossain
Humayun, Senior Advocate, instructed by Mohammad Nawab Ali,
civil petition for leave to appeal
no. 1752 of 2011
(From the judgment and order dated 21st July, 2010 passed by the high court Division in Writ Petition No. 7806 of 2009).
Mohammad Anwarul Haque, J. This petition for leave to appeal is directed against the judgment and order dated 21.07.2010
passed by the High Court Division in writ petition No. 7806 of 2009 where the rule as issued is found to have been made absolute directing the respondent-petitioner to execute and register the Kabala in respect of the land, described in the schedule of the petition.
In short, the case of the petitioner is as follows:
Petitioner, the present-respondent, is engaged in the business of export in ready made garments and composite knit sector having 6000/- employees, filed an application on 17the April, 2002 to the Director General of Bangladesh Railway, the present petitioner to lease out the land in accordance with the prevailing rule of the Bangladesh Railway, Ultimately on proper inquiry the proposal of the petitioner-respondent was accepted directing the writ petitioner-respondent to pay the lease money of Tk.
6,11,16,551/- payable by 4 installment, mentioned therein which was communicated to the respondent-writ petitioner on 12.09.2005 annexure-F to the petition. The further case of the petitioner is that in pursuance of the condition imposed upon him the writ petitioner-respondent has paid the entire lease amount of Tk. 6,11,16,551/- by 30th April, 2006 Annexure G-5
to the petition within the prescribed time given by the petitioner on 12.09.2005. Thereafter on 14.09.2005 respondent requested the petitioner to execute the Khabla in terms of the lease document but petitioner did not pay
heed to it though possession of the land was handed over on 23.05.2006. Inpite of that on repeated request vide annexure-1, I(1), I(2), I(3), J(4) to the petition the present petitioner has not yet turned up to execute and register the Kabala demanding excess payment in terms of allotment letter annexure-F to the petition. Thereafter the lessee the present respondent filed a writ
petition and got the Rule absolute where High Court Division issued a direction to execute and register the Kabala within 2 (two) months from the date of order.
Mr. Shaheed Alam the learned advocate appearing on behalf of the petitioner, Director General, Bangladesh Railway and respondent of the writ petition No. 7806 of 2009 submits that in pursuance of the lease application, filed on 16.4.2002 annexure-A to the petition the lease was granted on 12.09.2005 annexure-F to the petition fixing the lease money of Tk. 6,11,16,551/- annexure-E to the petition where the petitioner lessee agreed to pay the enhance amount in terms of lease in future occasion. The learned advocate further submits that since the property as leased out was followed by certain terms and condition incorporated in annexure-f to the petition any aggrieved party specially leassee may seek relief in a civil court not in writ jurisdiction. Moreover lessee, the writ petitioner, has not yet paid the enhance rate as claimed by the lessor in terms of the lease granting order annexure-F to the petition.
On the other hand, Mr. Fida M. Kamal the learned counsel appearing on behalf of the respondent has brought to our notice in the recital of the annexure-f to the petition which is as follows:
Ò cÖavb fzm¤úwË Kg©KZ©vi Kvh©vjq
evsjv‡`k †ijI‡q, PÆMÖvg
Rbve Rqbvj Av‡e`xb †gvjøv,
cwiPvjK, wbW Kbmvm© wjt, 62, IqvUvi IqvK©m †ivW, †Mv`bvBj, bvivqYMÄ|
†ijI‡qi bvivqYMÄ, †Mv`bvBj GjvKvq 3.1561 GKi †ijf~wg 100% ˆZix †cvkvK ißvbxgyLx
wkí cÖwZôvb †gmvm© bxU Kbmvb© Gi AbyKz‡j n¯ÍvšÍi cÖm‡½|
gnvcwiPvj‡Ki Kvh©vj‡qi cÎ bs †iwe/ fzm/ 19/92 (A-6) 722 ZvwiL 07-09-2005|
†hvMv‡hvM gš¿Yvj‡qi cÎ bs-‡hvg/‡iD/Rwg (2)-(29/03 (Ask-16)-464 ZvwiL
gnvcwiPvj‡Ki Kvh©vj‡qi cÎ bs-‡iwe/f~m /19/92 (A-6)-616 ZvwiL 24-7-2005|
wel‡q myÎ¯’ 1bs c‡Îi gva¨‡g cÖvß 2bs m~Î¯’ c‡Î ewY©Z 3.1561 GKi †ijf~wgi †gvU
gyj¨ 6,11,16,55/- UvKv cwi‡kv‡ai Abym~Px (Schedule)
I kZ© wb¤œiƒc (Kwc mshy³)t-
30 †k †m‡Þ¤^i/2005 Gi g‡a¨ 2(`yB) †KvwU UvKv|
31 †k wW‡m¤^i/2005 Gi g‡a¨ 2(`yB) †KvwU UvKv|
31 †k gvP©/2006 Gi g‡a¨ 2(`yB) †KvwU UvKv|
30 †k GwcÖj/2006 Gi g‡a¨ evKx 11 jÿ 16 nvRvi 551 UvKv|
kZ© _v‡K †h,
Dc‡i ewY©Z Abym~wP (Schedule)
Abyhvqx UvKv Rgv w`‡Z e¨_© nB‡j eivÏcÎ evwZj Ges eivÏK…Z f~wg Aegy³ Kiv nB‡e|
ZvQvov 3bs m~‡Î ewY©Z c‡Îi (Kwc mOhy³)
wb‡¤œv³ kZ© †gvZv‡eK e¨e¯’v MÖn‡Yi Aby‡iva Kiv †Mj|
Rwgi g~j¨ e„w× cvB‡j D³ g~j¨ Rwgi †iwR‡óªk‡bi c~‡e© evsjv‡`k †ijI‡q‡K cwi‡kva
evsjv‡`k †ijI‡qi cÖ‡qvRb nB‡e weavq D³ Rwg msjMœ 39410 eM©dzU RvqMv evsjv‡`k
†ijI‡qi cÖPwjZ bxwZgvjvi evwYwR¨K wba©vwiZ nv‡i evwl©K wfwË‡Z jvB‡mÝ cÖ`vb Kiv
nB‡e| Avcbvi cÖwZôvb KZ©„K GwcÖj/2002 nB‡Z 3.1561 GKi f~wgi ga¨ nB‡Z cÖvq 1.00
GKi f~wg A_©vr 43,560 eM©dzU evwYwR¨K Kv‡R e¨envi Kivq cÖPwjZ evwYwR¨K nv‡i
wba©vwiZ ÿwZc~iY cÖ`vb Kwi‡Z nB‡e|
†cŠi GjvKvq Rjve×Zv `~ixKi‡Yi welqwU wbwðZ Kwiqv 6 BwÂ cÖk¯Í Aviwmwm †Lvjv †Wªb
†ijjvBb eivei `wÿY nB‡Z DËi w`‡Ki Lvj ch©šÍ Avcbvi cÖwZôv‡bi Li‡P wbg©vb I
h_vh_ iÿbv‡eÿY Kwi‡Z nB‡e|
ewY©Z Abym~wP (Schedule) Abyhvqx cÖ_g wKw¯Í wnmv‡e 2.00 (`yB) †KvwU UvKv AvMvgx
3 †k †m‡Þ¤^i/ 2005 Zvwi‡Li g‡a¨ Òevsjv‡`k †ijc‡_i f~m¤úwË weµqjã A_©Ó GB
wk‡ivbv‡g µmW wWgvÛ Wªvd‡U©©i gva¨‡g AÎ `ß‡i Rgv cÖ`v‡bi Rb¨ Aby‡iva Kiv nBj|
Abyiƒcfv‡e Abym~Px (Schedule) ‡gvZv‡eK Aewkó UvKv ch©vqµ‡g GKB wk‡ivbv‡g µmW wWgvÛ
Wvd‡Ui gva¨‡g Rgv cÖ`v‡bi Rb¨I Aby‡iva Kiv nBj|
cÖavb f~m¤úwË Kg©KZ©v/c~e©
evsjv‡`k †ijI‡q, PÆMÖvg
Admittedly the petitioner lessee has paid the entire amount within the prescribed period, mentioned in annexure-F to the petition issued by the chief estate officer of the petitioner and thereafter lessee has began to knock in his door since 6.4.2006 annexure-I to the petition and also issued several reminder in several occasions annexure-I, I(1), I(2), I(3), I(4) of the petition but of no effect.
On the face of the admitted facts we wonder to note how lessor could claim enhanced amount where the lessee-petitioner paid the entire amount of lease money in terms of admitted allotment order (annexure-F to the petition). Moreover, in pursuance of the payment of entire lease money petitioner has already handed over the physical possession of the lease property on 23.05.2006 (annexure-H to the petition) and thereafter began to drag to execute the deed in favour of the lessee and this conduct of the lessor as a senior public servant is highly undesirable and also to be deprecated.
The High Court Division since made the rule absolute with a direction to execute the Kabala deed in favour of the lessee we find neither any illegality nor irregularity which can be interfered with and accordingly we find no merit in this petition for leave to appeal. The petitioner-lessor should be more vigilant to perform his official duty in accordance with the law and accordingly he is directed to execute the deed within next 30 (thirty) days from the date of receipt of the order.