Md. Abul Kashem Vs. Hosna Ara Begum and others, (Shah Abu Nayeem Mominur Rahman, J.)

APPELLATE DIVISION

(CIVIL)

Mr. Mohammad Fazlul Karim, J.

Mr. Md. Joynul Abedin, J.

Mr. Shah Abu Nayeem Mominur Rahman, J.

Judgment

12.05.2009

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 Md. Abul Kashem

…Appellant

Vs.

Hosne Ara Begum and others.

….Respondents

Constitution of Bangladesh, 1972

Article 102

Abandoned Property (Supplementary Provisions) Ordinance, 1985 (Ord. 54 of 1985)

Section 12

The Government released the case house from the list of abandoned Property under section 12 of the Ordinance No. 54 of 1985 and directed the Commissioner of Settlement for taking necessary steps for handing over possession of the property to the owner for which the case before the settlement court became infructuous but the writ respondent No. 4 failed to comply with the government direction for restoration of possession to the owner and hence the writ petition was filed. The action of the respondent No. 4 appears to be not bonafide and the alleged transfer of the respondent No. 4 appears to be not bonafide and the alleged transfer of the case building to writ–respondent No. 5 cannot be said to be lawful and bonafide. The transfer transaction between the respondent Nos. 4 and 5 was ex–facie illegal as the government was not the owner of the case house and it was by then, released in favor of the owner within the knowledge of the respondent No. 4.

The direction given by the High Court Division for taking action against the writ respondent Nos. 4 and 5 is proper. The Writ respondent Nos. 1–4 should comply with the direction of the High Court Division within 60 days of receipt of copy of this judgment and order without fail.                     

…(2, 7 & 8)

For the Petitioner:    Mr. A. J. Mohammad Ali, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

For Respondent No. 1:  Mr. Abdul Wadud Bhuiyah, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Respondent Nos. 2-5: Not represented.

JUDGMENT

Shah Abu Nayeem Mominur Rahman, J:  

Instant leave petition under Article 103 of the Constitution is for granting leave to appeal against the judgment and order dated 24.02.-2008 passed in Writ Petition No. 4401 of 2000 by the High Court Division making the Rule absolute.

  1. 2.           The respondent No. 1 hereof as petitioner fild the writ petition No. 4401 of 2000 in the High Court Division praying for direction for restoration of the possession of the house No. E/N/5, Firojshah Housing Estate, Mouza-North Pahartali, Police Station-Doublemooring, Chit-tagong, to the writ petitioner and to declare the settlement of the said house to writ respondent  No.5  by  the  respondent  No.4  vide  memo No. 319/Pro:Ka: dated 18.01.1990 followed by execution of  lease  deed  dated  09.05.1990  are  without  lawful authority and of no legal effect and void contending, amongst others, that the suit house was allotted, to Syed Zohur Ahmed Rizvi and settled through a registered deed of agreement dated 18.05.1960. The suit house was purchased by the writ petitioner in 1974 and got vacant possession of the suit house, who lived in the house till  September 1980,   and  subsequently  the  writ petitioner’s husband,  an officer of Bangladesh Jute Mills Corporation, having got allotment of an official house, the writ petitioner along with her husband moved to said official house renting out the suit house to one Abdul Halim and thereafter said Abdul Halim left the suit house. The suit house was then rented out “c one Kalu Mia and said Kalu Mia  having defaulted in­ payment of rent the writ petitioner filed Complaint Case No. 48 of 1981 with the Pahartali Ward Commissioner under Chittag-ong Municipal Corporation and the tenant: Kalu Mia paid rent to the writ petitioner through the Arbitration Council of the Pahartali Ward Commissioner’s office and that because of death of her husband the writ petitioner was busy with her minor children and in 1983 she came to know that the case house has been included in the list of  abando-ned property and accordingly she sub-mitted a representation to the Deputy Com-missioner, Chittagong, for release of the  house  from the  list  of  abandoned property, in response to which the Deputy Commissioner vide the Memo No. AP/186 dated 05.05.1983 required the writ petitioner to furnish docum-ents in support of her claim of title on  12.05.1933  and  thereafter  on  perusal  of  the documents the Deputy  Commissioner  advised  the  writ petitioner to approach the Ministry of Works, Abandoned Properties Wing, for release of the suit house and accordingly the writ petitioner filed  application before the respondent No. 1 and being asked for,  the writ petitioner submitted the supporting documents in support of her claim of title on 12.05.1983 and thereafter on perusal of the documents the Deputy Commissioner advised the writ petitioner to approach the Ministry of Works, Abandoned Properties Wing, for release of the suit house and accordingly the writ petitioner filed application before  the respondent No. 1 and being asked for, the writ petitioner sub-mitted the supporting documents in respect of her claim for release of the suit house from the list of abandoned property on 13.08.1988 and that in the meantime the government published a gazette notification containing list of abandoned building on 23.09.1986, which contains the suit house, and that pursuant to the Ordinance 54 of 1985 the writ petitioner filed an application before the Court of Settlement, which was registered as Settlement Case No. 4 38 of 1992, for release of the case house from the list of the abandoned buildings contained in the abandoned buildings contained in the gazette notification dated 23.09.1986 and that the Government by its notification No. Sha Kha-9/1/M-37/88/199 dated 16.05.1989 issued from  the office the writ respondent No. 4, released the case building along with some other buildings from the list of abandoned property and accordingly the 2nd Court of Settlement dismissed of the case No. 438 of 1992 observing that the case house having  been lawfully  released  by  the Government from the list of abandoned property, the case has become infructuous and that the action for release  has  been  taken  by  the  Government  as per provisions for Section 12 of the Aban-doned Property(Supplementary Provisions)  Ordinance,  1985  (Ordinance No. 54 of 1985), and is in accordance with law and that the Government while releasing the suit house from the list of abandoned buildings by the notification dated 16.05.1989 directed the Commissioner of Settlement for taking nece-ssary steps for handing over possession to the owner but the writ respondent No. 4, a Government officer, failed to comply with the government direction for restoration of poss-ession to the owner and hence the writ petition.
  2. 3.           The writ respondent No. 5, through application added himself as a party in the writ petition, and contested the Rule contending, amongst others that he purchased the suit property from the Government bonafide on  the  basis  of  allotment  vide  memo No. 319/ pro: Ka: dated 18.01.1990 and the registered sale Deed No. 713 dated 09.05.1990 and thus is owing and  possessing the suit land lawful.
  3. 4.            The High Court Division considering the order of release of the case house from the list of abandoned buildings vide Notification dated 16.05.1989, as well as the materials on record held that allotment of the case  house  in  favour of  the respondent No. 5  on 18.01.1999 and the registration of the sale deed No. 713 on 09.05.1990 therefore are illegal, void, malafide and without lawful authority and of no legal effect and further observed that the transfer of the case house, after release of the said property from the list of abandoned property vide Notification dated 16.05.1989 by the respondent No.4 in favour of the respondent No.5 is  malafide  and  illegal,  inasmuch  as  by  the  said Notification dated 16.05.1989 direction was given fez handing over the possession of the case house to the owner (s) . The High Court Division in its judgment: and order also directed the writ  respondent  Nos.1-4  to restore the possession of the case house to the writ-petitioner within three months from the date of receipt of copy of the judgment,  by evicting the respondent No.5. The High Court Division further directed for taking action against the concern officer, holding the office  of Administrative officer, Housing Estate, Chittagong, at the relevant time, and also against the respondent No. 5.
  4. 5.           Being aggrieved there-against writ respo-ndent No. 5 has come up with the instant leave petition. The learned Advocate appearing for the leave petitioner submitted, amongst others, that the High Court Division erred in law in entertaining the writ petition, wherein main dispute relates to question of disputed fact and that the writ petitioner failed to prove her possession of the case property on the basis of her purchase and that the leave petitioner is a bonafide purchaser of the case house from the Government against payment of the consider-ation money and that the writ petitioner is required to prove her title on the case house and that without ascertaining the said issue, the disposal of the writ petition by the impugned judgment and order is not proper and the same is liable to be set aside.
  5. 6.           We have perused the leave petition and the judgment passed by the High Court Division in the? writ petition making the Rule absolute and also the submissions of the learned Advocate.
  6. 7.           Admittedly the case property was enlisted as an abandoned building and subsequently released from the said list of abandoned buildings by the Government arid that the writ petitioner purchased the case house by registered sale deed from its lawful owner and on the prayer of the writ petitioner the case house released  from the  list  of  abandoned buildings  vide Notification dated 16.05.1989. The writ petitioner also lodged its claim with this Settlement Court pursuant to Ordinance No.54 of 1985 read with gazette notification dated  23.09.1986  containing  the  list  of  abandoned buildings, which included the case house, and the said case was disposed of by the Settlement Court in view of the release of the case building from the list of abandoned buildings vide notification dated 16.05.1989, mentioned hereinbefore, observing that the Government has lawfully released the case house from the list of abandoned buildings under Section 12 of the Ordinance 54 of 1985. It further appears that the respondent No.5 got  the  alleged  allotment  of  the  case  house  on 18.01.1990 and subsequently got the alleged, deed of lease registered on 09.05.1990, which has been executed on behalf of the Government by the officer holding office of respondent No.4,  inspire of the fact that direction  was  given  by  the  Notification  dated 16.05.1989 to hand over the possession of the; suit house to the owner (s) since released. Thus the action of the respondent No. 4 appears to be not bonafide and the alleged transfer of the case building to writ-respondent No. 5 in the facts and circumstances of the case,  cannot be said to be proper,  lawful,  and or bonafide. The transfer-transaction between   the respondent Nos.4 and 5 was ex-facie illegal inasmuch the Government was not the owner of the case house, and the case house, by then, has been released in favour of the owner (s) thereof within the knowledge of the respondent No. 4.
  7. 8.           Considering the facts and circumstances of the case, we do not find any substance in the leave petition. We further observe that the direction given by the High Court Division for taking action against the writ respondent Nos.4 and 5 is proper in the facts and circumstances of che case. The writ respondent Nos.1-4 should comply with the direction of the High Court Division, which making the Rule absolute, within 60 days of receipt of copy of this judgment and order without fail, if not already complied with in the meantime
  8. 9.           Accordingly, the application for leave to appeal is dismissed.

        Let a copy of the judgment and order be sent to the respondent Nos.2, 4 and 5 of this leave petition for doing the needful.

Ed.


Civil Petition for Leave to Appeal No. 672 of 2008

(Arising out of Writ Petition No. 4401 of 2001)

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