Appellate Division Cases
(Civil)
PARTIES
Govt. of Bangladesh, represented by the Secretary, Ministry of works…………………. Appellant.
-vs-
Jalil & ors ………………………….Respondents.
JUSTICE
A. T. M. Afzal. C.J.
Mustafa Kamal. J.
Muhammad Abdur Rouf. J.
Mohammad Ismailuddin Sarker. J.
JUDGEMENT DATE: 23rd August 1995.
The Ordinance 1985 (L I V of 1985), Section 5, (1), (2), 7.
The Constitution of the People’s Republic of Bangladesh 1972 Article 102.
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… The onus therefore is squarely on the claimant of the building to prove that the building is not an abandoned property……………………… (13)
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 had acted without jurisdiction or made any finding upon no evidence or without 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. In the absence of any of these conditions the interference by
the High Court Division will itself be an act of without jurisdiction……………. (15)
Civil Appeal No. 59 of 1994. (From the Judgment and Order dated 29th October, 1991 passed by the High Court Division in Writ Petition No. 1602 of 1988)
B. Hossain, Deputy Attorney General, instructed by Mvi, Md. Wahidullah, Advocate-on-
Record ……………..For the Appellant.
Dr. Rafiqur Rahman, Senior Advocate, Supreme Court, instructed by Serajur Rahman,
Advocate-on-Record ……………For Respondents No. 1& 2 .
Not represented……………….. Respondent No. 3
JUDGMENT
1. A.T.M. Afzal. C. J :– In this appeal by leaves, at the instance of the respondent-Government in writ petition No. 1602 of 1988, the short question is whether the High Court Division was justified in law in interfering with the decision of the Court of Settlement in exercise of its power under Article 102 of the Constitution.
2. Facts of the writ-petitioners’ case, briefly, are that the building bearing holding No, 6A/8. Block ‘F’. Joint Quarter, P.S. Mohammadpur, Dhaka was allotted to Alimannessa alias Aliman, mother of the respondent-writ-petitioners by the then Government of East Pakistan by an allotment letter dated 16.6.1962. A lease deed was executed by the Government in favor of the said Alimannessa, which was duly registered on 28.3.1963. The writ-petitioners had been living in the disputed building with their mother. Their father having died in 1954, till June 1974. In the second week of June, 1974 they were ousted from the said house by some goondas and subsequently the Deputy Secretary of the Ministry of works, one Aftabuddin, treated the property as abandoned property although the mother of the respondent-writ-petitioners showed her title deeds and other documents in respect of the said property. On being evicted from the house in June 1974, the respondents shifted to their present address and had been living there since then with the members of their families.
3. Their mother filed an application before the Secretary, Ministry of works on 6.8.1974 for releasing the property to her but without any result. She fell ill and died on 10.3.1975 and was buried in the Mohammadpur Jame Masjid and Idgah graveyard. After the death of their mother respondents also filed similar application again with no result. The respondents filed Title Suit No 81 of 1986 in the First Court of Assistant Judge, Dhaka for declaration of their title to the disputed house and for releasing the same form the list of the abandoned property and further for delivery of its possession to them.
4. In the meantime, the Government published a Gazette notification on 23.9.1986 under section 5 of the Abandoned Buildings (Supplementary provisions) Ordinance 1985 (L1 V of 1985), briefly, the Ordinance. Wherefrom the said respondents Came to know that their building as aforesaid was also included in the list of abandoned buildings as aforesaid was also included in the list of abandoned buildings. They filed an application to the Court of Settlement under Section 7 of the said Ordinance for exclusion of their building from the list, which was registered as Case No. 519/87 (ka/49-Mohammadpur Block T). They were advised to withdraw the title suit and to proceed with the case filed in the Court of Settlement.
5. In the writ petition they stated that they filed a series of documents in the Court of Settlement in support of their claim to the disputed house and further produced 6(six) witnesses to prove that they were the sons of Alimannessa alias Aliman and Md. Bashir and that Alimannessa had died on 10.3.1975 and was buried at the Mohammadpur graveyard.
6. The petitioner contested the case without filing any written statement or adducing any evidence to disprove the claim of the respondents.
7. The petitioner’s case, however, was that Alimannesa had left the disputed house after the liberation of the country leaving the same uncared for, that the respondents falsely claimed to be her heirs, that her alleged death and burial on 10 March 1975 in angladesh were concocted and that the property became an abandoned property under P.O. No. 16 of 1972.
8. The Court of Settlement by its judgment and order dated 9.5.1988 dismissed the application of the respondents declaring that the disputed house was rightly enlisted as abandoned building under the aforesaid ordinance.
9. The respondents then preferred the aforesaid writ petition calling in question the judgment and order of the Court of Settlement. They repeated their case in the writ petition as was disclosed by them in the Court of Settlement.
10. The petitioner Government this time filed and affidavit-in-opposition controverting the statements made by the respondents in their writ petition and asserting further that during the liberation war the respondents and their mother had left for Pakistan and after independence their whereabouts could not be traced and accordingly the property in question became abandoned property under P.O. No. 16 of 1972 and the same has been in possession of the Government through its allottee ever since.
11. By the impugned judgment an under dated 29 October 1991 the High Court Division made the Rule Nisi issued in the writ petition absolute declaring that the judgment and order of the Court of Settlement there passed without any lawful authority and that the inclusion of the disputed building in the Gazette was also without any lawful authority and further directing the petitioner to put the respondents in possession of the disputed house within 3(three) months from the date of the order.
12. Leave was granted to consider whether the High Court Division had not acted as a Court of appeal in interfering with the findings of fact arrived at by the Court of appeal in interfering with the findings of fact arrived at by the Court of Settlement and thereby exceeded its own jurisdiction in the absence of any finding that the Court of Settlement in arriving at the findings of fact had acted without jurisdiction and/or in a malafide manner.
13. The Court of Settlement, it appears, rightly considered the crucial point as to whether the respondents had been able to disprove the stand taken by the petitioner that Alimannessa was not present in Bangladesh and her whereabouts were not known on 28.2.1972 when P. O. No. 16 of 1972 came into force. They were required to rebut the presumption under section 5(2) of the Ordinance, it was further observed. The Court of Settlement upon thoroughly considering both oral and documentary evidence on record found that the respondents failed to prove that Alimannessa was present in Bangladesh as aforesaid, far less proving that their claim of title to the disputed house was immune from the perilous effect of P.O. No. 16 of 1972.
14. The High Court Division, in our opinion, started with a wrong premise holding that the presumption of correctness of the entries in the Gazette notification does not absolve the Government form denying the facts alleged by the claimant or form disclosing the basis of treating the property as abandoned property when it is disputed. 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 P.O. No. 16 of 1972 or that his right or interest in the building has not been affected by the provisions 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 has no obligation either to deny the facts 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.
15. The High Court Division again went wrong in observing that the Court of Settlement failed to notice the case of the respondents and the evidence led by them that they and their mother had been living in the disputed house till June 1974 when they were forcibly evicted therefore. The High Court Division observed that had this aspect of the case been taken notice of the presumption under section 5(2) of the Ordinance would have been found to have been rebutted. The High Court Division took the view that although the alleged death of Alimannessa and her burial in Mohammadpur graveyard on 10.3.1975 as alleged by the respondents was disbelieved by the Court of settlement it failed to take notice of that part of the evidence by which it was sought to be proved that the respondents and their mother had been living in the disputed house till June 1974.
16. It must be said that the High Court Division failed to appreciate the purport of the judgment of the Court of Settlement as a whole. The Court of Settlement not only disbelieved the testimony as to the alleged death of Alimannessa and burial in Mohammadpur on 10.3.1975, but also disbelieved the evidence adduced by the respondents in its entirety. The inconsistencies in the evidence as to their possession of the disputed house till. June 1974 were pointed out and it was observed that by resorting to tricks to falsely prove their mother’s death on 10.3.1975 in Bangladesh they not only befooled themselves but also exhibited a conduct which compelled the Court “to take an adverse view against the petitioners’ case”. It was clearly found that the respondents failed to disprove the stand taken by the Government that Alimannessa was not present in Bangladesh on 28.2.72, which means that their evidence as to alleged possession of the disputed house till June 1974 was also disbelieved. That being the position the High Court Division was not at all justified in holding that the Court of Settlement failed to take notice of the evidence of the respondents as to their possession of the disputed house. The High Court Division having given no other reason did not at all act legally and properly in interfering with the findings of fact made by the Court of Settlement. 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 had acted without jurisdiction or made any finding upon no evidence or without 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. In the absence of any of these conditions the interference by the High Court Division will itself be an act of without jurisdiction. This precisely has happened in the present case and therefore this appeal must succeed.
17. It is not necessary for us to refer to and consider the various papers which have been included by the appellant in the paper book as additional papers showing that the Government have been making demand for rent from one Abdul Aziz Mridha who had been occupying the house at least since 1973 and to whom the house was subsequently sold, he having been treated as a valid allattee. Mr. B. Hossain, learned Deputy Attorney General, produced an original Chelan showing payment of rent by the said Abdul Aziz Mridha on 26 December 1973 in pursuance of notice dated 8.12.1973 issued by the Government which is at page 12 of the additional papers. By this notice the Government asked Abdul Aziz Mridha to pay rent for the disputed house from 1.2.73 as he was found in illegal occupation of the said house from 31.12.1972. Dr. Rafiqur Rahman. Learned Advocate for the respondents, who also perused the original Chelan dated 26.12.1973, a copy of which has been put in with a sworn application, found it difficult to reconcile his client’s case. Dr. Rahman has been fair enough to say that in the face of such material the respondent’s case of having been in possession of the disputed house till June 1974 becomes open to serious doubt. Be that as it may, for the reasons already recorded, we have no hesitation to hold that the impugned judgment of the High Court Division is not sustainable in law. In the result, therefore, this appeal is allowed without any order as to cost.
Ed.
Source: I ADC (2004), 415