Md.Asaduzzaman Vs. Kazi Abdus Sabur

Appellate Division Cases

(Civil)

PARTIES

Md.Asaduzzaman…………… Petitioner.

-Vs

Kazi Abdus Sabur and others…………. Respondents.

JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment Dated: 24th September 2007

The Public Demand Recovery Act, Section 23

M/s. Jess Duck (Pvt.) Limited Company took loan from Bangladesh Shilpa Bank, Jhcnidah Branch, Jhenidah. The said loan was not paid in time. Hence Bangladesh Shilpa Bank started Certificate Case ………………(3)

The petitioner, writ respondent. No.2, participated in the said auction of the above schedule property and purchased the same measuring 2.97 acres of land along with structure (building) standing thereon. The auction sale was confirmed on 29.12.1992, Sale Certificate was granted to the petitioner on 23.1.1993 and delivery of possession of the property was given to the petitioner on 7.3.1993. The petitioner thus acquired title and ownership in the property on the basis of the said auction sale and is in possession of the same. ……….(5)

On 28.11.1994 further property of the said borrower company was put to auction by the same authority and in the schedule of the tender notice there was some confusion and mistake. The petitioner being misled took part in the second auction held on 28.11.1994 and it was subsequently detected by him that the property purchased by him in the earlier auction sale is also included in the second auction sale …………….(6)

Md. Nawab Ali, Advocate-on-Record. …………………For the Petitioner

Chowdhury Md. Zahangir, Advocate-on-record ………………..For Respondent No.1

For Respondent Nos.2-3………….. Not Represented.

Civil Petition For Leave To Appeal No. 116 of 2006

(From the judgment and order dated 17.8.2005 passed by the High Court Division in Writ Petition No.4453 of 2000.)

JUDGMENT

Md. Joynul Abedin J: This petition for leave to appeal is directed against the judgment and order dated 17.8.2005 passed by a Division Bench of the High Court Division in Writ Petition No.4453 of 2000 making the rule absolute.

2. The respondent-writ petitioner filed the aforesaid Writ Petition challenging the judgment and order dated 8.8.2000 passed by the Land Appeal Board in Case No.565/

98-Appeal (Jessore) reversing the judgment and order dated 30.11.1998 passed by the Additional Divisional Commissioner, Khulna dismissing the Revision case preferred under the Public Demand Recovery Act thereby affirming the order dated 31.8.1998 passed by the Additional Deputy Commissioner (Revenue), Jcssore in Appeal No.l of 1996 dismissing the appeal by the Certificate Officer Sadar, Jessore in Certificate Case

No.  confirming the auction sale dated 28.11.1994.

3. The short fact of the case is that M/s. Jess Duck (Pvt.) Limited Company took loan from Bangladesh Shilpa Bank, Jhcnidah Branch, Jhcnidah. The said loan was not paid in time. Hence Bangladesh Shilpa Bank started Certificate Case NO.4T^T for realization of Taka 1,30,24,866/-. In that certificate case the following schedule property belonging to

the said borrower company was sold in auction on 28.10.1992.

4. District-Jcssorc, P.S. Jessore Sadar. Mouza, Hamidpur.

S.A. Khatian Nos. S.A. Plot Nos. Area of land

182                              245/1619        2.97 acres

with project

land and

building.

914                              245/1620

5. The petitioner, writ respondent. No.2,participated in the said auction of the above schedule property and purchased the same measuring 2.97 acres of land along with structure (building) standing thereon. The auction sale was confirmed on 29.12.1992, Sale Certificate was granted to the petitioner on 23.1.1993 and delivery of possession of the property was given to the petitioner on 7.3.1993. The petitioner thus acquired title and ownership in the property on the basis of the said auction sale and is in possession of the

same.

6. On 28.11.1994 further property of the said borrower company was put to auction by the same authority and in the schedule of the tender notice there was some confusion and mistake. The petitioner being misled took part in the second auction held on 28.11.1994 and it was subsequently detected by him that the property purchased by him in the earlier auction sale is also included in the second auction sale. Hence he filed an application under section 23 of the Public Demand Recovery Act for setting aside the second auction

sale in respect of the property which he already purchased in the first auction sale held on 28.10.1992. But the Certificate Officer rejected his application. Against this order of rejection, the petitioner moved the Additional Deputy-Commissioner (Revenue), Jessore and being unsuccessful moved the Additional Divisional Commissioner, Khulna and

again being unsuccessful filed appeal before the Land Appeal Board and the Board by its order dated 8.8.2000 reversed all the orders of the aforesaid authorities and set aside the proceedings of the second auction sale dated 28.11.1994. Against this order the respondent-writ petitioner filed the above writ petition and obtained the impugned order dated 17.8.2005 whereby the aforesaid order dated 8.8.2000 of the Land Appeal Board

was declared without lawful authority.

7. Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner submits that the impugned judgment and order is bad both in fact and in law and as such the same is liable to be set aside inasmuch as the petitioner admittedly auctionpurchased the property and structure standing thereon in Certificate Case Noauction sale was confirmed on 28.11.1992, sale certificate was granted on 23.2.1993 and possession of the property

was delivered to the petitioner on 7.3.1993 and the same was mutated in his name and

thus he acquired title and ownership to the land. He lastly submits that the High Court

Division on misconstruction of the provisions of the Public Demand Recovery Act

set aside the order of the Land Appeal Board and as a result there has been a miscarriage

of Justice.

8. We have heard the learned Advocate for the petitioner and perused the connected papers. We are of the view that the High Court Division upon correct assessment of

the materials on record arrived at a correct decision and rightly made the rule absolute by setting aside the order of the Land Appeal Board. There is therefore no cogent reason to interfere with the same.

9. Accordingly, the petition is dismissed.

Source : V ADC (2008),609

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