Hazi Zahirul Islam and others Vs. Government of Bangladesh and another (Md. Ashfaqul Islam, J.)

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Constitution of Bangladesh, 1972

Article 102

State Acquisition and Tenancy Rules, 1955

Rules 28, 29, 30, 31, 32 and 42

Once appeal has been disposed of on contest under Rule 31 of Stale Acquisition and Tenancy Rules, 1955 no review or other application lies and the settlement authority have got no jurisdiction to re-open the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955. Even Rule 42 docs not empower the Settlement Officer to sit and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955.

… (12)

Md. Khalilur Rahman, Advocate

…For the Petitioners

Mr. S.R.M.  Lutfor Rahman Akand, Advocate

…For respondent Nos 4 and

Romisa Khanam Vs. Bangladesh, 61 DLR 18; (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records, 11 MLR 226 and Capital Co-operative Housing Society Ltd. Vs. Bangladesh, 45 DLR 289 ref.

Judgment

Md. Ashfaqul Islam,  J.

At the instance of the petitioners, this Rule Nisi was issued calling upon the respondent to show cause as to why the impinged 8  (eight) notices dated 01.02.2003 issued under the signature of respondent No. 3 for rehear-ing of Settlement Appeal Case No. 2846, 2847, 2849, 2850, 2857, 2858, 2859 and 3025 of 1999 with a reference to Miscellaneous Case No. 760 of 2002 (Annexure- E, E (1), E(2), E(3), E(4), E(5), E(6) and E(7) should not be declared to have been passed illegally and witho-ut lawful authority and why direction should not be issued to send the draft publication of Khatian No. 237, 155, 125 and 245 of Mouza Shantinagar, Police Station Motijheel, Dhaka prepared in the name of the petitioners to the Settlement Press for final publication.

1. 2.       Facts leading to the issuance of the present Rule, in short, arc that after completing all the stages of proceeding of survey and settlement of recent Mohanagari settlement under relevant Rules of Stale Acquisition and Tenancy Rules, 1955 (herein after referred to asS.A. and T. Rules.  1955) (i.e. proceeding known as khanapuri, Bujaral, Attestation, objection and  Appeal) 1.20 acres of land covered by D.P. Khatian No. 237 of Mouza Shantinagar, under Police Station Motijheel, District-Dhaka were recorded in the names of Hazi Zahirul Islam, Jainal Abedin, Hazi Mahbubul Islam, Mojibul Islam (the petitioner Nos. l, 2, 3 5) and 8 others, 0.4050 acre of land covered by  D.P.khatian No. 155 were recorded in the name of Hazi Zahirul Islam (The Petitioner No. 1), 0.0730 acre land covered by D.P. Khatian No. 125 were recorded in the name of Kamal Uddin (the petitioner No. 4) and 0.0078 acre land covered by D.P.Khatian No. 245 were recorded in the name of Mojibul Islam( the petitioner No. 5).
2. 3.             The petitioners   and   their   other   co-sharers   have  been owning  and possessing a total 1.837 acres of land covered by the aforesaid 4 khatians No. 237, 155, 125 and 245 and some other lands total being 3.21 acres from the time of their predecessors namely Hazi Hafizuddin, Afsaruddin and Md. Taher who purchased the 3.21 acres of land including the lands covered by the aforesaid four D.P. khatians from its lawful owners Bamacharan Pal, Boloram Pal, Hororam Pal and Gupal Chandra Pal by registered sale deed No.4911 dated 26.08.1952 and have been owning and possessing the same by constructing residential-cum-commercial building.
3. 4.        While the predecessors of the petitioners were owning and possessing the aforesaid 3.21 acres of land along with the building thereon, including the land covered by aforesaid four I) D.P. Khatians, the then Dhaka Improvement Trust (DIT) issued notice for requisition of 2.19 acre of land including the land covered by 4 khatians for the purpose of acquisition for constructing North South Koad by starting L.A, Case No.8/65-66 through the A.D.C. (L.A), Dhaka. Subsequently the aforesaid 2.19 acre of land was de-requisitioned by nonce dated 24^th April 1968,
4. 5.        The land covered by the order of derequisition    as well as of 4 D.P. khatians as mentioned above were wrongly recorded in the name of Collector, Dhaka as khas land but at the time of preparation of R.S. record the land in question was duly and correctly ordered to be recorded in the name of petitioner No.5 and the predecessors of other petitioners and other co-sharers in Settlement Appeal Case No. I 53 and accordingly R.S. and D.P. khatian No.53 was prepared though the respondent  No.4 did not participate in any proceeding under rules 28 to 31 of the State Acquisition and Tenancy Act Rules 1955 at the time of operation of R.S. record of right before the survey and settlement authority but fraudulently entered his name in the said R.S. khatian at the time of final publication in collusion with the staffs of the Settlement Press and on the basis of the said fraudulent R.S. khatian managed to have recorded his name in the recent Mohanagari Record of Right against which the petitioners and others filed objection Case No. 10, 12, 61, 40, 41, 43, 57, 24, 30, 46, 44, 47, 48, 42, 28, 25, 22 and   69 under rule 30 of S.A. and T Rules, 1955. The objection officer heard both the parties and allowed the objection Case No. 10 and   12 by analogous judgment dated 23.6.1999.
5. 6.             Against the said judgment passed by the objection officer respondent Nos. 4 and 5 preferred Settlement Appeal Case No. 2846/99, 2847/90. 2849/99, 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 under rule 31 of S.A. and T Act Rules, 19955 and being refused by the Appeal Officer preferred writ petition No.1103 of 1999 before this Court without impleading the petitioners and their co-sharers and obtained rule. The present petitioner Nos. l -3 and 5 and other co-sharers on being added as party in that writ petition contested the Rule which was discharged on 25.07.2001 by this Court. After that the Appeal Officer heard   both   the parties and dismissed the said appeal   cases by analogous judgment dated 9^th April 2002 (annexure -D and D-1).
6. 7.             It is further stated that after the judgment given in the appeal eases under rule 31 there is no provision other than to send the D.P. khatian to the Settlement Press for final publication under rule 32 of S.A. and T. Rules,  1995 and the petitioners were waiting for such finally published khatian but all on a sudden on 3^rd February 2003 the petitioners obtained separated 8 notices issued under the   signature   of Settlement Officer, Dhaka, the respondent No. 3 dated 01.2.2003 for re-hearing of the self name Appeal Case Nos. 2846/99, 2847/ 99, 2849/99. 2850/99, 2857/99, 2858/99, 2859 /99 and 3025/99 under rule 31 of the State Acquisition and Tenancy   Rules, 1955 by giving a reference of Miscellaneous case No. 760 of 2002. It is at this stage the petitioner moved this Division under Article 102 of the constitution and obtained the present Rule.
7. 8.             Mr. Md. Khalilur Rahman, the learned counsel appearing on behalf of the petitioners after taking us with the petition, the impugned notices and other annexure with the petition, mainly pressed that the impugned notices dated 01.2.2003 for re-hearing of the appeal Case Nos. 2846/99, 2847/99, 2849/99, 2850/99, 2857/99, 2858/99, 2859/99 and 3025/99 afresh has been issued Without any lawful authority and without jurisdiction which should be declared un-constitutional. In elaborating his argum-ent the learned Advocate submits that the notices for re-hearing of the appeal cases is absolutely in violation of State Acquis-ition and Tenancy Rules, 1955. lie submits that once the appeal has been disposed of on contest under-rule 31 no review or other application lies and settlement authority has no jurisdiction to re-open the mailer other than to send the draft application khatian for final publication in the settlement press under Rule 32 of the S.A and T Rules, 1955. This is well settled as he submits. In support of his contentions he placed reliance on the decision of Romisa Khanam Vs. Bangladesh 61 DLR 18, (where one of us was a party), Md. Abtab Ali Sheikh Vs. Director of Land Records 11 MLR 226 and Capital Co-operative Housing Society Ltd. Vs. Bangladesh 45 DLR 289.
8. 9.             Mr. S.R.M. Lutfor Rahman Akand, the learned Advocate appearing on behalf of the respondent No.4 and 5 by filing affidavit-in-opposition, on the other hand, opposes the  Rule and submits that  this writ petition  should be discharged in that the impugned notices in respect of filing of the Miscellaneous Case No. 760 of 2002 for re-hearing, of appeal eases Nos. 2846/99. 2847/99, 2849/99, 285O/99, 2857/99, 2858/99, 2859/99 and 3025/99 is absolutely in accordance with law since the same has been permitted under Rule 42 of the Tenancy Rules, 1955. He submits that Rule 42 clearly provides that settlement authority has jurisdiction to re-hear (he appeal before publication of the record of right and hence the instant writ petition filed against those notices regarding re-hearing   of  the   appeals   is   not   maintainable   under   Article   102   of  the constitution
9. 10.         We have heard the learned advocate for both sides at length and considered their submissions. We have also perused the petition, impugned notices, other annexures appended to the petition and the affidavit-in-opposition carefully. The matter is well settled by this Court as well as the Appellate Division of the Supreme Court.
10. 11.         In the ease of Romisa Khanam Vs. Bangladesh in which one of us was a party, Justice M.A. Rashid (as he then was) while dealing with the same point observed as follows:

“In the scheme of revision of a record-of-rights under section 144 of the State Acquisition and Tenancy Act, 1950there are various stages laid down in the Rules, 1955. After completion of attestation, the Revenue Officer shall under Rule 29 publish the draft record-of-rights for public inspection. Under Rule 30, the Revenue Officer shall decide summarily in presence of the interested parties any objection regarding ownership or possession of land or of any interest in land. Any person aggrieved by such an order on any objection made under Rule 30 may appeal to the Revenue Officer appointed with additional designation of Settlement Officer or of Assistant Settlement Officer commonly known as Appellate Officer within 30 days from the date of order appealed against. Any order passed on such appeal appears to be final as no further appeal or revision is provided there from. 

After disposal of the objections under Rule 30 and appeals under 31 and correction of the draft record-of-rights in accordance with the original and appellate orders on all objections, the Revenue Officer shall proceed to frame final record of rights under Rule 31 and then, publish record of rights under Rule 33. Under Rule 34, the Revenue Officer shall within sixty days of the fina publication make a certificate stating the fact of such final publication and the date thereof, etc. And the Government by a notification in the official gazette may declare with regard to any specified area that the record-of-rights has been finally published for every village included in such area and such notification shall be conclusive proof of such publication.

Chapter VIII of said Rules, 1955 deals with general power of Revenue Officer in revising record-of-rights under section 144 of the State Acquisition and Tenancy Act, 1950. Rule 42 gives special power to a Revenue Officer appointed with additional designation of Settlement Officer to direct at any time before the publication of the final record of rights that any portion of the proceedings referred to in rules 28 to 32 in respect of any district, part of a district or local area shall be cancelled and the proceedings shall be taken up fresh from such stage as he may direct. Similarly, such Settlement Officer is empowered under Rule 42A upon an application or receipt of an Official Report to correct any entry that has been procured by fraud in record-of-rights before final publication, and after consulting the relevant records and making such other enquiries as he deems necessary, to direct excision of the fraudulent entry and his act in doing so shall not be open to an appeal. At the same time, the Revenue Officer shall make the correct entry after hearing the parties and record his finding in a formal proceeding for the purpose of future reference. Bui none of such powers under Rule 42 or 42A of the Rules, 1955 appears to empower such Settlement Officer to sit and or act as an appellate authority over an appellate order passed under Rule 31 and se aside such, appellate order or direct the Appellate Officer to hear an appeal afresh in respect of a particular holding. Nor the Appellate Officer is empowered to rehear an appeal which was finally disposed by him. The Settlement Officer therefore most illegally cancelled the appellate orders and compelled the Appellate Officer to hear the appeals afresh.”

1. 12.         Against this decision Bhawal Raj Court of Wards Estate who was the respondent in the said case unsuccessfully moved the Appellate Division in Civil Petition for Leave to Appeal No. 1447-52 of 2008. The Appellate Division finally set at rest of the same once for all. All other decisions as referred to above are on the same point and all these decisions settled the proposition of law that once appeal has been disposed of on contest under Rule 3 1 of Stale Acquisition and Tenancy Rules, 1955 no review or other application lies and the settlement authority have got no jurisdiction to re-open the matter other than to send the draft publication khatian for final publication under Rule 32 of the State Acquisition and Tenancy Rules, 1955. Even Rule 42 docs not empower the Settlement Officer to sit and act as an appellate authority over an appellate order passed under Rule 31 of the Stale Acquisition and Tenancy Rules 1955. In that view of the mailer, this Rule is made absolute without any order as to cost. The impugned 8(eight) notices dated 01.2.2003 issued under the signature of respondent No. 3, the Settlement Officer is hereby declared to have  been passed without any lawful authority and as such no legal effect and it is also directed to send the draft publication khatian No. 237,155,125 and 245 of Mouza Santinagar, Police Station Motijhcel, Dhaka prepared in the name of the petitioners to the settlement press for final publication.

Ed.