Md. Ayub Hossain Khan Vs The Government of Bangladesh and another (Hasan Foez Siddique, J.)

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Mr. Hasan Foez Siddique J.

Mr. Jahangir Hossain J.

 

Judgment

18.08.2011 and 21.08.2011

 

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 Md. Ayub Hossain Khan          … Petitioner

In Writ Petition No. 4608 of 2009

VS

The Government of Bangladesh and others

….Respondents

H.R.P.B

……Petitioner

in Writ Petition No. 6766 of 2011

-Versus-

Bangladeshand others

……Respondents

In Writ Petition No. 6766 of 2011.

Constitution of Bangladesh, 1972

Article 102

  The period of lease of the petitioner of Writ Petition No. 4608 of 2009 having expired in 1415 B. S. and then it was not renewed. Petitioner’s unauthorized occupation in the property in question cannot be protected invoking the writ jurisdiction. The petitioner has been in possession for 23 years in the scheduled property as yearly lessee, who is a habitual defaulter in payment of lease money, cannot be protected from the clutches of unauthorized occupa-tion on an application under Article 102 of the Constitution and he acquired no vested right to hold the same. The government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of Suchitra Sen. .

In view of the facts and circumstances as mentioned above our considered conclusion are that:

(1)   Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired in 1415 B.S. and the authority concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

(2)   Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money,  has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this Court to get lease to  protect his possession. Consequently the direction as sought for is hereby refused.                                 

(3)   Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4)  The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala”immediately to protect and preserve the birth place of Suchitra Sen considering her contributions in our cultural arena                                                   ….. (48)   

M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Mofazzal Hossain and another Vs. Bangladesh, 43 DLR (AD) 137, M/S. Delta Constru-ctions Ltd. Vs. Chairman, 2nd Labour Court and another, 28 DLR 365, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, 56 DLR (AD) 24, R.S. Das Vs. Union of India AIR 1987 SC page 593, John Vs. Rees (1969) 2 ALL E R. Page 274, Breen Vs. Amalgamated  Engineering Union (1991) 2B 175, Dr. Abeda Begum and others Vs. Public Service Commission, 59 DLR (HCD) 182; Shirajul Islam and others Vs. Bangladesh, 60 DLR(HCD) 79, M/S. Motilal  Padampal Sugar Mills Co. Ltd.  Vs. The State of Uttor Prodesh, AIR 1979 S.C. Page 621, Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another, 46 DLR (AD) 148, Union of India Vs. International Trading Co., AIR 2003 SC. 3983, Ashok Kumer Panday Vs. State of West Bengal, AIR 2004 S.C. page 280, S.P. Gupta Vs. Union of India (popularly known as First Judge’s Case), AIR 1982 S.C. Page 148.

Mr. Abdur Razzaq, Senior Advocate with

Mr. Imran A. Siddiq, Mr. Salman A. Nabi, Advocates.

… For the petitioner in Writ Petition No. 4608 of 2009 and for the added  Respondent in Writ Petition   No. 6766 of 2011

Mr. Mahbubey Alam, Attorney General, with Mr. Biswojit Roy, D.A.G, Mr. Shafiquel Islam Siddique, A.A.G, and Ms. Shahida Khatoon, A.A.G.

… For Respondent No. 1 in Writ Petition No. 4608 of 2009.

Mr. Manzill Murshid, Advocate,

… For the petitioner in Writ Petition No. 6766 of 2011 and for the respondent No. 4 in Writ Petition No. 4608 of 2009

Judgment

Hasan Foez Siddique, J :

Subject matters of both writ Petitions being Writ Petition No. 4608 of 2009 and Writ Petition No. 6766 of 2011 are same and they are heard together and disposed of by this judgment.

  1. 2.             In Writ Petition No. 4608 of 2009 a  Rule Nisi was issued calling upon the respondents  to show cause as to why the impugned order, being Memo. No. ‡Rtcªt/cve/ivR¯^/wfwc wgm‡Km bs 03(cve)/86-87/09-1396, dated 22.6.2009 issued by the Additional Deputy Commissioner (Revenue), Pabna (the Respo-ndent No. 3) directing the petitioner to hand over possession of the Scheduled Land (Annexure –‘A’) shall not be declared to have been issued without lawful authority and is of no legal effect and further why the Respondents shall not be directed to renew the lease of the Scheduled Land in accordance with the terms and conditions set out in the Memo. dated 6.8.1991 (Annexure–‘E’) by accepting the outstan-ding rent payable by the petitioner from the year 1416 B.S.
  2. 3.             The writ petition No.6766 of 2011 has been filed by way of Public Interest Litigation (PIL). In that petition Rule Nisi was issued calling upon the respondents to show cause as to why the inaction of the respondents to take appropriate legal steps against the land grabbers of “Shuchitra Sen’s paternal house in Pabna Sadar should not be declared illegal and without lawful authority and a direction should not be given upon the respondents to ensure  protection of the house of their all time famous icon and legendary actress of the sub-continent, Shuchitra Sen and why they shall not be directed to perform their duty vested upon them under the Constitution of Bangladesh.
  3. 4.             The relevant facts of writ Petition No. 4608 of 2009, in short, are that  on 11th December, 1995, Moulana Md. Abdus Subhan created a trust by executing a Deed  of trust for the purpose of establishing and running schools, colleges, madrasahs  and medical centres. The management of the affairs of the Trust has been vested in a Board of Trustees comprising of 9 members. In 1983, the Board of Trustees of the Trust established Imam Gazzali Institute as an educational institution.  On the basis of the prayer, the Additional Deputy Commissioner (Revenue), Pabna granted  year to year lease of the Scheduled land  of the impugned notice  in favour of the petitioner commencing from 1st Paush, 1393 B.S on condition that an application had to be made for renewal of the lease at the beginning of the year following the expiry of the lease. On 2nd June, 1990, the Deputy Director, Primary Education, Rajshahi after conducting necessary enquiries granted registration to the petitioner for setting up a private school Thereafter, the petitioner, as Principal of the Imam Gazzali Institute, started a primary school. By a Memo dated 6th August, 1991 the Ministry of Land informed the petitioner that there is no provision  for permanent settlement of vested properties so the lease of the scheduled land would be renewed every year until the Government takes final decision with regard to the settlement of vested properties. Thereafter, the respondents had renewed the lease of the scheduled land upon receipt of advance rent at the beginning of each year following the expiry of the lease in accordance with Clauses 4 and 5 of the lease deed. The school buildings of the institute located on the scheduled land were in a dilapidated condition. The petitioner incurred several lacs of Taka for repairing and rebuilding the roof of the school building. On 25.05.1992, the Ministry of Land permitted the petitioner to repair the school building with approval of the local administration. The respondent Nos. 2 and 3 received rent from 1393 B.S. to 1415 B.S. regularly. On 20.04.2009, the petitioner filed application for renewal of lease of the scheduled land for the year 1416-1417 B.S. On 20.04.2009, the petitioner requested  the A.D.C (Rev) to accept the  lease-money for the year 1416-1417 B.S. Meanwhile, the impug-ned notice has been issued directing the petitioner to hand over possession of the disputed property. The petitioner, by another letter dated 10th June, 2009 again requested the Respondent Nos. 2 and 3 to accept the rent for the year 1416-1417 B.S but they did not accept the same. Thereafter,  the respondent No. 3 issued the impugned order on 22nd of June, 2009 informing the petitioner that a Museum is going to be constructed on the scheduled land and accordingly directed the petitioner to hand over possession of the said land. Challenging the letter dated 22.06.2009 (Annexure-A) the petitioner moved this Court under Article 102 read with Article 44 of the Constitution of the People’s Republic of Bangladesh and obtained the instant rule.
  4. 5.             The respondent No. 4 filed affidavit in opposition contending that the land measuring .2125 acres appertaining to S.A. Khatian No. 99, plot no. 587 of Mouza Gopalpur and the structures situated  thereon (referred as scheduled property) originally  belonged to Karunamoyee Das Gupta.S.A. record of right was prepared in his name. Karunamoyee  Das Gupta left the then East Pakistan before 1960 forIndia. The Government made requisition of the said property in H.R.S. Case No. 4 of 1960 (Pab) and let out the same to their employees. Thereafter, the said property was enlisted as vested property. R.S. record of right was prepared in the name of Korunamoyee Das Gupta. The respondent No. 3 leased out the said property to the petitioner as yearly lease in V.P. Misc. Case No. 3 (Pab) of 1986-87. Thereafter, the petitioner Imam Gazzali Institute took permanent lease of 1.29 acres of land from plot No. 801 of Mouza Dakkhin Raghobpur, Pabna and constructed their four storied building thereon and started to run the function of their institution in the name of “ImamGazzaliSchool and College”. As per provision of new law relating to Vested Property the lease of the petitioner has been cancelled on 11.04.2001.  The law does not provide any provision allowing any one to get lease of two or more pieces of land at a time. Suchitra Sen, daughter of Karunamoyee Das Gupta, a famous actress of the sub-continent was born in the disputed premises. The Government has decided to establish “Suchitra Sen Memorial Complex” in her birth place to protect and preserve her memory. Accordingly, the Deputy Commissioner, Pabna issued the notice to vacate the premises.
  5. 6.             In writ petition No. 6766 of 2011 it has been, inter alia, stated that the petitioner is an organization. Many cases by way of public interest litigations have been filed by them. A report had been published in ‘The Daily Sokaler Khabor’ on 13.07.2011 that paternal house of Suchitra Sen has been grabbed by some people taking support from law enforcing agencies. The local people disclosed that Suchitra Sen, with her family, left for Kolkata at the time of partition ofIndia. The said house was listed as vested property. In 1987, Jamat-e-Islam, organized education center using unjust force, took lease of the said house and the adjacent land. The police failed to take steps against those land grabbers. The District Administr-ation had issued a notice to them to vacate the premises. Imam Gazzali Institute has rebuilt the house and constructed few shops for letting out the same for business purpose. It is the constitutional duty of the respondents to preserve the birth place of Suchitra Sen and structure thereon considering her contributions in the cultural arena.
  6. 7.             The added respondent No. 7 filed affidavit-in-opposition in writ petition No. 6766 of 2011. In fact, this added respondent No. 7 in his affidavit-in-opposition reiterated his case as made out in writ petition No. 4608 of 2009 and further stated that the land appertaining to D.S. Khatian No. 88 and plot No. 587 jointly owned by (1) Prasanna Biswas (2) Uma Prasanna Biswas  and (3) Ananda Prasanna Biswas. The said land was never listed as a ‘natural heritage’ site by the Ministry of Culture and there is no record with either the Ministry of Culture or the Ministry of Land to prove that  the scheduled  land was the paternal  property  of Suchitra Sen. There is no public interest involved  in dispossessing  the respondent No. 7 from the scheduled land, which is a vested property and had been leased out to the respondent No. 7. This writ petition has been  filed suppressing  material facts and for the malafide purpose for harassing  the respondent No. 7 who has  been enjoying lawful possession in the same.
  7. 8.             Mr. Abdur Razzaq, the learned Senior Counsel appearing for the petitioner, at the out set submits that at the time of passing the impugned order of eviction the Additional Deputy Commissioner (Revenue), Pabna, neither followed the connected provisions of law and circular relating to the Vested and Non-resident Property nor the relevant provisions of the Government and Local Authority Lands and Buildings (Recovery of Possession) Ordinance, 1970 (East Pakistan Ordinance No.24 of 1970).  He submits that it was the duty of the respondents to issue a show cause notice giving  the petitioner an opportunity  of being heard before passing the order of eviction. He submits that earlier the Government in writing assured that the disputed property would be leased out to the petitioner on yearly basis until adoption of the law of permanent settlement. Accordingly, the petitioner spent huge money to repair and re-construct the structure thereon legitimately expecting that the authority will lease out the disputed property to the petitioner permanently. The respondents are barred by the principles of estoppel in taking any steps to evict the petitioner from the premises after issuing Annexure–E. He submits that the principles of natural justice has also been violated by giving the order of eviction without issuing any opportunity of the petitioner of being heard. Mr. Razzaq seriously attacks on the maintainability of the writ petition No. 6766 of 2011 saying that the said rule has been obtained by suppressing the material facts. He submits that this petitioner took over possession of the disputed property exhausting the process of law and has possessed the same depositing lease money but the petitioner of the writ petition No. 6766 of 2011 has termed the petitioner as “land graver” which is unfortunate. The disputed property has been using as educational institution so the language as used addressing the institution is unacceptable and such type of wording in the petition should be discouraged.
  8. 9.             The learned Attorney General, appearing for the respondents in Writ Petition No. 4608 of 2009, submits that the disputed property is the vested and non-resident property. The original owner of the said property  was Karunamayee Das Gupta, father  of Suchitra Sen, famous artist in the cultural arena of the sub-continent. Related vested property laws allowed the Government to manage, control, administer and dispose the vested properties. After taking decision to protect and preserve the memory of Suchitra Sen, the Government issued the impugned notice to the petitioner to vacate the premises stating that the Government has taken decision to establish “Suchitra Sen Smriti Sangrashala” in her birth place. He submits that after expiry of the period of lease it was the duty of the petitioner to vacate the possession of the premises. At present the petitioner has become unauthorised occupant in the premises and he is not entitled to get any protection to remain in possession from this Court. He submits that at the time of allowing the petitioner to repair the building the Government imposed a condition that the petitioner shall not acquire any right in the property for reasons of payment of repairing cost. He submits that since the “Imam Gazzali Institute” has already constructed their own four storied building in a different place, allotted by the Government, the eviction will not affect the future of the students of the said Institution. The learned Attorney General submits that second writ petition is that, in fact, the second petition is redundant in view of the fact that the Government has already taken decision to establish “Suchitra Sen  Smriti Sangrahashala” in the property in question and in order to implement  the decision, the impugned notice  for eviction has been issued. After so eviction of the petitioner of writ petition No. 4608 of 2009, the Government shall take other positive steps for establishment of the ‘Suchitra Sen Smriti Sangraha-shala’.
  9. 10.          Mr. Manzill Murshid, the learned Advocate for the petitioner  of Writ Petition No. 6766 of 2011 submits that this writ petition has been filed by way of Public Interest Litigation for a direction upon the Government to preserve  and protect the birth place of great actress Suchitra Sen narrating some facts gathered  from the newspaper and the petitioner was not aware  about the facts of leasing out the property  to Imam Gazzali Institute and pendency of the Rule and order of stay  in Writ Petition No. 4608 of 2009 so he has failed to bring the said story  in petition. He submits  that Suchitra Sen is a symbol of pride  of our cultural arena. It is the constitutional duty of Government to preserve and protect her birth place.
  10. 11.          We have heard the learned Advocates for the petitioners and the learned Attorney General for the Government, peruse the writ petition, affidavit-in-opposition and other materials on record.
  11. 12.          The petitioner of Writ Petition No. 4608 of 2009 took lease of the disputed property in V.P. Misc. Case No. 3(Pab)/86-87 which indicates that the said V.P. Case was started sometimes in 1986-87. There is nothing before us whether the scheduled land was enlisted as enemy property before 1969 and thereafter vested and non-resident property legally or not. Since both the parties admitted that the disputed property is the vested and non-resident property, we are of the view that the process of management, administration and disposal of the same should be regulated by the laws and circulars relating to Vested and Non-resident Property.
  12. 13.          The submission of Mr. Razzaq that the authority did not comply the provision of Government andLocalAuthorityLand and Buildings (Recovery of Possession) Ordinance, 1970 at the time of issuance of impugned notice does not deserve any consideration in view of the admission of the parties concerned that the scheduled property is vested property.
  13. 14.          Another aspect was raised in affidavit-in-opposition filed by added respondent No. 7 of W.P. No. 6766 of 2011, that original owners of the scheduled property were Prassanya Biswas, Uma Prssanaya Biswas and Annada  Prassanya Biswas not Karunamayee Das Gupta, father of Shuchitra Sen. But in 2009 when he filed W.P. 4608 of 2009 did not state anything   regarding  the ownership of the  schedule property. A leasee is not legally entitled to make any dispute regarding the title of the lease hold property against the lessor before leaving the possession of the same as leasee.
  14. 15.          In exercise of power conferred by clause –(1) of  Article 30 of the Constitution of Pakistan, the President of Pakistan proclaimed Emergency on 06.09.1965. On that day, the Defence of Pakistan Ordinance was promulgated in exercise of powers under clause (4) of Article 30 read with clause (2) of Article 31 of the Constitution to meet emergency. On the same day, i.e., on 06.09.1965 the Central Government of Pakistan, in exercise of power vested under section 3 of the Defence of Pakistan   Ordinance, 1965, issued the Defence of Pakistan Rules. The power conferred in sub-rule (1) of Rule 182.of the Defence of Pakistan Rules, the then Governor  of East Pakistan passed an Order in the name of East Pakistan Enemy Property (Land and Buildings) Administration and Disposal  Order, 1966. Clause-4 of the said order provided the provisions of the administration and disposal of enemy property which runs as follows :-

“4. Disposal of Property: (1) Except as provided in sub-paragraph (2) the custodian shall not transfer or otherwise dispose of any enemy property vested in him without the previous approval of the Provincial Government.

     (2)The custodian may grant lease of or let out, any such enemy property for a period not exceeding one year at a time.

     (3) Notwithstanding anything contained in any other law for the time being in force or in any agreement, a person to whom any enemy property is leased or let out under sub-paragraph (2) shall not acquire any right of occupancy in such property and shall not be entitled to hold over after the expiry of the period of lease.

     (4) Notwithstanding anything contained in any other law for time being in force or in any agreement, the lessee or tenant in respect of any enemy property leased or let out under sub-paragraph (2) shall be liable to be evicted without notice from such property at the expiry of the term of the lease.

  1. 16.          On revocation of the Defence of Pakistan Ordinance, the Enemy Property (Continuance of Emergency) Ordinance, 1969 was promulgated on 16.02.1969 wherein it was provided that the provisions of Defence of Pakistan Rules, mentioned in first column of the schedule to the Ordinance, shall continue in force and shall have effect subject to the modification specified in the second column thereof. The purpose of the Ordinance  was that notwithstanding the  withdrawal  of Emergency, and the Defence of Pakistan Ordinance ceasing to have effect,  certain provisions of the Defence of Pakistan Rules made under the said Ordinance were sought  to be continued relating to control of trading with enemy and control of firms and vesting and administration of property belonging to them.
  2. 17.          Subsequent position of the connected laws had been discussed in the case of M/S. Dulichand Omraolal Vs. Bangladesh, 33 DLR (AD) 30, Their Lordships of the Appellate Division , inter alia, observed  in the said case,

“The Ordinance IV of 1974 the Enemy Property (Continuance of Emergency Provisions)(Repeal) Ordinance, 1974, which repealed the Enemy Property  (Continuance of Emergency Provisions) Ordinance I of 1969 and provided, inter alia, that all enemy property vested in the Custodian of Enemy Property appointed under the previsions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government, meaning Government of Bangladesh. There was another Ordinance No. V of 1974. The Vested and Non-Resident Property (Administration) Ordinance 1974, which provided for the management and control of the vested and non-resident properties in the manner set out in the Ordinance. These Ordinances were replaced by Act XLV of 1974, Enemy Property (Continuance of Emergency Provision) (Repeal) Act, 1974, and Act No. XLVI of 1974 the Vested and Non-Resident Property (Administration) Act, 1974. There had been two subsequent enactments, namely Ordinance XCII of 1976, the Vested and Non-Resident Property (Administration) (Repeal) Ordinance, 1976 which repealed the Vested and Non-Resident Property (Administration) Act, 1974 followed by Ordinance XCIII of 1976 the Enemy Property (Continuance of Emergency Provision) (Repeal) (Administration) Ordinance, 1976, which has amended  Section (3) of Act XLV of 1974 by providing  that the properties which had vested in the Government, the right of administration, control, management and disposal of by transfer or otherwise be conferred on the government or of such officer or authority as the Government may direct.”

  1. 18.                In the case of Mofazzal Hossain and another Vs. Bangladesh, reported in 43 DLR (AD) 137, it has been observed by the Appellate Division ,             “The Enemy Property  (Continuance of Emergency Provision) (Repeal) Act, 1974 (Act XLV of 1974) on being amended by  the Enemy Property (Continuance of Emergency Provisions) (Repeal) (Amendment) Ordinance, 1976 (Ordinance No. XCIII of 1976) by the relevant clause  of section 3 provides that all enemy property vested in the custodian of the enemy property appointed under the provisions of the Reference of Pakistan Rules and continued in force by the Ordinance  ( 1 of 1969) shall vest in the Government and shall be administered, controlled, managed and disposed of by transfer or otherwise  by the Government or by such officer or authority as the Government may direct.  Circular dated 23rd May, 1977 of the Ministry of Land Administration and Land Reforms Division containing instruction for administration, management and disposal of vested property by clause 4(1), provides that ADC (Rev) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Sub-divisional officer in whose jurisdiction the property is situated.”
  2. 19.        The relevant portions of circular  of the Government dated  23.5.1977 run as follows :-

4(1) The Additional Deputy Commissioner (Revenue) may, with the previous approval of the Government, transfer or otherwise dispose of any vested property either by himself or through the Sub-divisional Officer in whose jurisdiction the property is situated.

(2)   No such approval shall be necessary for granting lease of or letting out any such property for a period not exceeding one year at a time.

5.A  person to whom any vested property  is leased out  or let out  under paragraph 4(2) shall not acquire  any right of occupancy in such property and shall not be entitled  to hold on after the expiry of the period of lease.

6.     The lessee or tenant in respect of any vested property shall be liable to be evicted from the said property at the expiry of the period of lease.

Clause 7: If any vested property is found in unlawful possession of any person, Sub-Divisional Officer under whose jurisdiction the said property is situated, shall issue notice on the person in unlawful possession to show cause within period not exceeding 7(seven) days as to why he will not be evicted therefrom and after giving the person an opportunity of being heard may enforce surrender of such property. For this purpose the Sub-Divisional Officer may use or goes to be used such force as may be necessary.

  1. 20.          Mr. Razzaq relying upon Clause-7 of the Circular submits that there is specific provision that seven days’ notice is to be served upon the incumbent giving an opportunity of being heard. He submits that the Circular is binding upon the maker. Issuing the impugned notice of eviction the respondents violated their own Circular which is the guiding principle to deal with the administration of Vested and Non-resident Property. Mr. Razzaq further submits that the principle of natural justice also demands that before receiving an order of eviction the person who has been possessing the property for about 23 years is entitled to get notice. In this regard Mr. Razzaq relied upon the case of M/S. Delta Constructions Ltd. Vs. Chairman, 2ndLabour Court and another, reported in 28 DLR 365. In the cited case it was held,

        “The said circular is obviously on administrative  act and cannot said to have the force of a piece of legislation. Nevertheless, the binding nature of this circular cannot be ignored, ……”

  1. 21.          Mr. Razzaq also relied on the case of Chairman, Board of Intermediate and Secondary Education, Jessore. Vs. Amir Hossain and another, reported in 56 DLR (AD) 24. In the cited case their Lordships of the Appellate Division  have observed,  “It is now a settled principle that even where provision for show cause notice and affording opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred.”
  2. 22.          Mr. Mahbubey Alam, the learned Attorney General relied upon the Circular itself and submits that Clauses- 5 and 6 are applicable for the lessee who after getting lease was inducted into the possession and after expiry of the period of lease he became unauthorized  occupant and Clause – 5 clearly provides that after expiry of period of lease the lessee shall not be entitled to hold the possession of the property and liable to be evicted. He submits that Clause-7 is applicable for the person who is in unlawful possession, not for the lessee who became unauthorized occupant after the expiry of the period of lease. He submits that the words “unlawful possession of any person” have been used in clause-7 meaningfully for making deference with the former leasee and unauthorized occupant.  He submits that the Circular has got no legal force and on the basis of Circular an administrative order cannot be declared unlawful.
  3. 23.    Clause- 4(4) of the East Pakistan Enemy Property (land and Buildings) Administration Order 1966 started with a non-obstante clause and specifically provided that lessee after expiry of the period lease shall liable to be evicted without any notice but in circular dated 23.5.1977 no such provision has been provided. Clause No.4(4)  of Order clearly provided that the same is applicable for the “lessee” or “tenant” in respect of  property leased out under sub-clause (2) of Clause 4 of the Order but Clause-7 of the Circular dated 23.5.1977 is applicable for “any person” who is found in “unlawful possession” in the vested property. The “words” and “language” used in those two provisions have made a clear difference between them. Those were made objectively. In view of apparent difference we find substance in the submission of the learned Attorney General.
  4. 24.          Clauses 5 and 6 of the Circular dated 23.5.1977 provided that after expiry of period of lease the lessee shall become unauthorized occupant. In Clause 5 it has been provided that the person shall not acquire  any right of occupancy after getting lease of vested property and shall not be entitled to hold on the property after the expiry of the period of lease and it has further been provided that he shall liable to be evicted  from the said property after the expiry of the lease period.  In both the clauses the word “shall” has been used meaningfully which indicated that it is the duty of the lessee, after expiry of the period of lease, to leave the property. It is his obligation. If we accept the position that the words “unlawful possession of any person” have been used in clause– 7 of the Circular for the former lessee as well then also after the expiry of the period of lease the former lessee is not entitled to hold property.
  5. 25.          The subsequent legislation to deal with vested property, is,  Awc©Z m¤úwË cªZ¨vc©b AvBb, 2001  – Section 14 of the said Act says, “A¯nvqx BRviv cª`Ë cªZ¨vc©b‡hvM¨ m¤úwË m¤úwK©Z  weavb | – (1) GB AvBb cªeZ©‡bi c~‡e©  miKvi †Kvb cªZ¨vc©b‡hvM¨  mcwË A¯nvqx BRviv cª`vb Kwiqv  _vwK‡j, BRviv `wj‡j ev Ab¨ †Kvb `wj‡j ev Ab¨ †Kvb AvB‡b  ev †h †Kvb Av`vj‡Zi wm×v‡š— wfbœi~c  hvnv wKQyB _vKzK bv †Kb, DI“ BRvivi †gqv`  †k‡l ev GB AvB‡b cªe©Z‡bi cieZx© 360 (wZbkZ lvU) w`b, hvnv c~‡e© nq, AwZevwnZ nIqvi ms‡M ms‡M  DI“ BRviv evwZj ewjqv  MY¨ nB‡e Ges BRviv MªnxZv  Awej‡¤^ DI“ m¤úwËi `Lj  cwiZ¨vM Kwi‡eb ev †Rjv cªkvm‡Ki wbKU `Lj eySvBqv w`‡eb | Section 2(T) defined the “cªZ¨vc©b‡hvM¨ m¤úwË”  which runs as follows :-

“cªZ¨vc©b‡hvM¨ m¤úwË A_© Awc©Z m¤úwË AvB‡bi Aax†b ZZ¡veavqK KZ©„K Awc©Z m¤úwË wnmv‡e ZvwjKvf~I“ Kiv nBhv‡Q | GBi~c m¤úwËi g‡a¨  (A) hvnv GB AvBb cªeZ©‡bi Ae¨ewnZ c~‡e© miKv‡ii `L‡j  ev wbqš¿‡Y wQj ; ev  ………..”

Awc©Z m¤úwË has been defined in section 2(Ka) which runs as follows :-

2(K) Awc©Z m¤úwË A_© Awc©Z m¤úwËi AvB‡bi Aax‡b miKv‡i b¨¯Z m¤úwË|

Section 3 of said Act provided a overriding provision which runs as follows:-

AvcvZZ ejer Ab¨ ‡Kvb AvB‡b Ab¨i~c hvnv wKQyB _vKzK bv †Kb GB AvB‡bi weavbejx Kvh©Ki _vwK‡e|

By an amendment section 14 as substituted by the following provision:- DI“ AvB‡bi aviv 14 Ges Dcaviv (1) Gi cwie‡Z© wbg¥i“c Dcaviv (1) cªwZ¯nvwcZ nB‡e,  h_vt-

(1) Awc©Z m¤úwË cªZ©vc©b bv nIqv ch©š— DI“  †Rjv cªkvm‡Ki wbqš¿‡b _vwK‡e Ges wZwb cªPwjZ AvBb Abyhvqx Dnv BRviv cª`vb Kwi‡eb| 

  1. 26.          In view of the circumstances as mentioned above and the law and circular related thereto we have no other alternative but to hold that the possession of the petitioner in the scheduled property cannot be protected in any way and he is not entitled to hold possession of the property. The petitioner has got no option but to vacate the premises. It is the discretion of the Deputy Commissioner either to lease out or not to lease out any vested property subject to law related thereto.
  2. 27.    It appears from the impugned letter dated 22.6.2009 that the petitioner was requested to vacate the premises within 8.7.2009.  That is the petitioner was allowed 15 days time to vacate the same. It is not the case of the petitioner that the Government compelled the petitioner to vacate the premises without any notice. If we accept the submission of Mr. Razzaq that ‘unauthorized occupant’ as used in clause 4 and 5 and “any person in unlawful possession” of clause 7 connote same meaning even then it can be concluded that the respondents allowed  15 days time to the petitioner to vacate the premises, that is, clause 7 of the circular has been complied with substantially. The contents of the notice issued on 22.6.2009 addressing the Chairman, Imam Gazzali Institute from the office of the Deputy Commissioner are as follows:-

“welqt- wf,wc, †Km bs-3(cve)  /86-87 fzI“ Awc©Z m¤úwËi `Lj  †Q‡o  †`qv cªms‡M|

Dc‡ivI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q  †h, wf,wc, wgm  †Km bs-03(cve)/86-87 fywI“ Awc©Z m¤úwË m¥„wZ msMªn kvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ m¤úwËi `Lj  †Q‡o  †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv|

  1. 28.          It is clear from the notice that the Government has taken decision to establish a “¯g„wZ  msMªnkvjvÓ  in the scheduled property and for the purpose  to establish the same the premises is required  and accordingly, the petitioner is allowed time till 08.7.2009 to hand over possession of the same. Notice is making something known to a person of which he was or might be ignorant. Notice in its legal sense is information concerning a fact, actually communicated to a person by unauthorized person. Giving notice means that it should reach the hands of a person to whom it has to be given and the giving is complete when it has been offered to a person. Here, the Deputy Commissioner; the controller of the vested property, is the authorized person to lease out the scheduled property and he has taken decision not to lease out the same to the petitioners for establishment of “¯§„wZ  msMªnkvjvÓ and 15 days time has been allowed the petitioner to vacate the possession of the premises and it is not denied that the said notice has not been offered or communicated to the petitioner. That is provision of service of notice has been complied with. It is to be relevant here to mention that circular is not law. The same is an announcement or directive  typically in the form of a printed leaflet intended to be sent to many persons. The same is a administrative guide line.
  2. 29.          Submission of Mr. Razzaq so for violation of the principle of   natural justice is concerned it appears to us that the latest law has given wide discretion to the Deputy Commissioner in respect of leasing out the vested property. Said discretion is subject to the provision of law. We do not find any law to deal the affairs of leasing out the Vested property except circular which has got no force of law. That administrative desecration authorized by law that the Deputy Commissioner possesses power to administer the vested property. In the case of R.S. Das Vs. Union of India reported in AIR 1987 SC page 593 the Supreme Court of India observed, “It is well established that the rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of right which may be affected and the consequences which may entail its application depends upon the facts and circumstances of each  case”. Here, the Government has decided not to lease out the scheduled property to the petitioner in order to establish a “¯§„wZ  msMªnkvjvÓ . The petitioner has got no right in the property after the expiry of the period of lease. We shall conclude this issue with the words of Magarry in the case of John Vs. Rees (1969) 2 ALL E R. Page 274 which are:- “the result is obvious from start”. The petitioner has not acquired any right due to his previous lease he has not been affected in not giving him any opportunity of being heard.  In the case of Breen Vs. Amalgamated Engineering Union reported in (1991) 2B 175 Lord Denning stated that if a man see us a privilege to which he has no particular claim such as an appointment to some post or other then he can turned away without word. He need not be heard . No explanation need be given. But if he is a man whose property is at stake, or who is being deprive of his livelihood then reasons should be given why he is being  turned down and he should be given a chance to be heard. Here the scheduled property is the paternal property of Shuchitra Sen and Government is the custodian of the same having empowered to administer and dispose the same. The petitioner has no right in the property.
  3. 30.          The next submission of Mr. Razzaq is that in view of Annexure-E the petitioner would get yearly lease of the disputed property until the Government adopts decision to lease out the vested property permanently. Getting such assurance the petitioner repaired the building spending huge amount legitimately expecting that he would get yearly lease and thereafter get permanent settlement after adoption of the law of permanent settlement. He submits that such legitimate expectation has got basis. After issuance of Annexure–E, the Government continuously leased out the said property to the petitioner. Mr. Razzaq relied upon the case of Dr. Abeda Begum and others Vs. Public Service Commission, reported in 59 DLR (HCD) 182. In the said decision it is held that the doctrine of legitimate expectation can be invoked if the impugned decision affected a person by depriving of some benefit or advantage which he had been in the passed permitted by the decision-maker to enjoy and which he can legitimately expect to continue to do until there has been communicated to him some rational grounds for withdrawing it. He also cited the  case of Shirajul Islam and others Vs. Bangladesh, reported in 60 DLR(HCD) 79 wherein  it has been held, “ The mere reasonable or “legitimate expectation” of a citizen  in such a situation, may not by itself be a distinct  enforceable  right, but failure to consider and given due weight to it may render the decision arbitrary, and this is now the requirement of due consideration of a ‘legitimate expectation” form part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every ‘legitimate expectation’  is a relevant  factor requiring  due consideration in a fair decision making process”.

             “Doctrine of ‘legitimate expectation’ is a new emerging concept. In Halsbury Laws of England it is stated that the expectation may arise either from representation or promise made by the authority, including and implied representation or from consistent past practice. In the case of Attorney General  of Hong Kong Vs. Ng Yuen Shin, reported in 1983- 2 ALL.E.R. 346 it was held, “When a public authority has promised to follow a certain procedure it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with its statutory duty”.  In the case of Schmidt Vs. Secretary of State, reported in 1969 1 ALL.E.R. page -409 it was observed, “ Even in the cases where there is no legal right he may still have legitimate expectation of receiving  the benefit  of privilege such expectation may either from express promise or from existence  of regular practice which the applicant  can reasonable expectation by invoking principle analogous to natural justice and fair play in action. In the case of Madras City Wine Merchant’s Association -Vs- The State of Tamil Nadu reported in AIR 1994(SC) 509 it was observed by the Supreme of India,  “Legitimate expectation may arise (a) if there is a express promise given by Public Authority (b) because of the existence of a regular practice which the claimant can reasonably expect to continue, (c) such an expectation must be reasonable”.

  1. 31.          We shall consider the submission of Mr. Razzaq on Legitimate expectation finally along with his next submission on “Promissory estoppel” because two doctrines and arguments under the label of estoppel and legitimate expectation are substantially the same.
  2. 32.          Mr. Razzaq submits that giving assurance to settle the disputed property permanently issuing Annexure-E the respondents are barred by the Provision of estoppel to say that they would not lease out the premises to the petitioner. Mr. Razzaq relied upon the case of M/S. Motilal Padampal Sugar Mills Co. Ltd.  Vs. The State ofUttor Prodesh reported in AIR 1979 S.C. Page 621. In cited case it was observed, “The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which  is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not.” His next citation is the case of Secretary, Ministry of Industries, National Industries Division Vs. Saleh Ahmed and another reported in 46 DLR (AD) 148 wherein it was held, “Having taken the decision on agreement that the specialized  textile mills will be returned to their former Bangalee owners, it is not available to the   Government, now to say that the decision had been revised in so far as the Mohammadi is concerned although in the case of other five concerns mentioned in the Annexure-B the Government had already released them.”
  3. 33.          The letter relating to lease out the disputed property measuring an area of .2125 acre of plot No. 587, S.A. Khatian No. 99 of Mouza Gopalpur Pabna has been communicated to the chairman Imam Gazzali Institute, Pabna under Memo No.214 V.P. dt.23.3.1987, contents of the aid notice runs as follows:-

welqt- wf, wc, †Km bs-3(cve) 86-87 fzI“  †Mvcvjcyi  gnj­vi †nvwìs bs- Gi

         BRviv cªms‡M |

            ÒAvcbvi 11-12-1986 Zvwi‡Li 10bs ¯^viK c‡Î Pvwn`v  ‡gvZv‡eK wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j­wLZ k‡Z© †gvZv‡eK gvwmK 250/- UvKv fvWvq A¯nvqx GKmbv wfwËK 1393  m‡bi Rb¨ Avcbvi AbyKz‡j BRviv  †`Iqv nBj| AÎ Av‡`k 1jv  †cŠl 1393 nB‡Z Kvh©Kix nB‡e Ges Zvi c~‡e©i e‡Kqv fvovi UvKv c~e© avh©K…Z nv‡i AÎ wefv‡M cª`vb Kwi‡Z nB‡e| Ó

  1. 34.          Three of the terms and conditions as stipulated in the said letter are relevant here to mention which are:-

                (2) Avcwb webvbygwZ‡Z AÎ m¤úwËi Dci cvKv/ KvPv ev †Kvb cªKvi evox Ni wbg©vb /ˆZqvi Kwi‡Z cv‡wieb bv|

(4)  BRvivi mgqmxgv †kl A‡š— A_©vr erm‡ii cªvi‡¤¢ BRviv bevq‡bi Av‡e`b Kwi‡Z nB‡e Ab¨_vq BRviv evwZj ewjqv Mb¨ nB‡e|

6| AÎ Av‡`k cªvwßi 1 gv‡mi g‡a¨ 1.50 cqmv gy‡j¨i †Wwgi Dci GKwU wjR `wjj Mªnb Kwi‡Z nB‡e| DI“ †Wwg BRviv`vi‡K mieivn Kwi‡Z nB‡e|

  1. 35.                From the aforesaid letter it appears that the authority leased out the premises not the land because the words “wbg¥ Zckxj ewb©Z m¤úwËi evox wb‡g¥ D‡j­wLZ kZ©  †gvZv‡eK” lease was granted for a period of one year but same was  renewable. There is nothing in the writ petition that as per clause 6 of the conditions any lease agreement was ever executed.
  2. 36.                From annexure-G series it appears that the petitioners paid rent of years 1409 and 1410 B.S. on 14.6.2003, 1411 B.S. on 17.5.2004, 1412 B.S. on 25.5.2005, 1413 B.S. on 29.6.2006, 1414 B.S. on 25.3.2008, 1415 B.S. on 7.8.2008 which clearly showed that the petitioner violated the terms No.4 of the letter above quoted. That is the petitioner was a habitual defaulter in payment of lease money.
  3. 37.                Mr. Razzaq relied upon Annexure-E and made his submission on legitimate expectation and promissory estoppel. Said letter was issued from Ministry of Land addressing the Chairman Imam Gazzali Institute. The contents of Annexure-E runs as follows:-

            welqt- wf,wc, †Km bs-3(cve)  /86-87 fzI“ Awc©Z I AbvMwiK m¤úwË cvebv Bgvg Mv¾vjx BbwówUD‡Ui Rb¨ ¯nvqx BRviv e‡›`ve¯— cªms‡M|

myÎt-  Zvnvi ¯^viK bs-1713 wf,wc, Zvs 16/7/91 Bs 31-3-98evs

          Dc‡ivI“ welq I c‡Îmy‡Î wb‡`©kG“‡g Rvbv‡bv hvB‡Z‡Q  †h, eZ©gv‡b Awc©Z m¤úwI“ ¯nvqx  e‡›`ve‡¯—i weavb bvB d‡j hZw`b ch©š— Awc©Z m¤úwË  m¤ú‡K© PzWvš— wmÜvš—  M„wnZ bv nq ZZw`b ch©š— D‡j­wLZ  Awc©Z m¤úwË  cªwZôvbwUi AbyKz‡j GKmbv e‡›`ve¯— Ae¨vnZ _vwK‡e|

  1. 38.          From the said letter it indicated that the same was issued on the basis of the application of the petitioner dated 16.7.1991 for permanent settlement which was rejected but it was mentioned that the process of yearly lease should be continued. Accordingly yearly lease was continued till 1415 B.S.  Subsequently another letter was issued on 25.05.1992   (annexure-F) upon which Mr. Razzaq relied on and submitted that getting assurance of permanent settlement the petitioner spent huge money for repairing the house thereby the petitioner legitimate expected that he may get the land permanently. The contents of letter dated 25.2.1992 are as follows:- “Dc‡ivI“ welq I m~‡Î D‡j­wLZ  ¯^vi‡Ki eiv‡Z Rvbvb hvB‡Z‡Q  †h, Awc©Z m¤úwËi Dci Aew¯nZ Bgvg Mv¾vjx BbwówUDU  bvgxq  ¯‹zjwUi evoxi  †givgZ LiP ¯‹zj KZ…©c¶  ¯nvbxq cªkvm‡bi mg¥wZG“‡g wb‡Riv enb Kwi‡Z cv‡i| Z‡e© kZ© _vwK‡e †h GB †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i  †Kvb AwaKvi /`vex eZ©vB‡e bv|Ó
  2. 39.          If we consider the Annexure-C, E and F together it will be apparent that the Government never assured the petitioner that they shall lease out the disputed property permanently  to the petitioner rather in the latest letter dated 25.5.1992  it has been clearly stated- “Z‡e kZ© _vwK‡e  †h, GB  †givgZ LiP enb Kivi Kvi‡b evoxi Dci Zvnv‡`i †Kvb AwaKvi/`vex eZ©vB‡e bvÓ Moreover, accepting the clause 4, 5 and 6 of the circular dated 23.5.1977 the petitioner took lease of the premises. Estoppel can only arise from a clear definite statement and the same must be unambiguous. To create an estoppel against a party, his declaration, act or omission must be of an unequivocal character. We do not find anything in the papers submitted by the petitioners that the Government has given any such declaration that the scheduled vested property should permanently be leased out to the petitioner. It is relevant here to refer the case of Union of India Vs. International Trading Co. reported in AIR 2003 SC. 3983. In the said case company was granted a fishing permit. It was, however, not renewed by the Government due to change in policy. A writ petition filed by the Company was dismissed by a single Judge but was allowed by the Division Bench in appeal. The Government approached the Supreme Court. Allowing the appeal and dismissing the writ petition the Supreme Court of India held that there was change of policy by the Government and conscious decision was taken in public interest and the doctrine of promissory estoppel and legitimate expectation had no application.
  3. 40.          Considering the aforesaid facts and laws we are of the view that the submission of Mr. Razzaq on legitimate expectation and promissory estoppel does not carry any force.
  4. 41.          Mr. Razzaq submits that Writ Petition No. 6766 of 2011 filed by way of public interest litigation is not maintainable. The allegation as brought in the said writ petition against the added respondent who is the petitioner of the Writ Petition No.4608 of 2009 is not acceptable. He was not the unauthorized land graver.  He was inducted into possession of the property by the respondents as lessee in 1986-87 and he had been possessing the same legally and has been possessing the same after expiry of period of lease. He had filed an application to get the said lease renewed for the year 1416 and 1417 B.S.
  5. 42.          Mr. Manzill Murshid, the learned Advocate appearing for the petitioner of writ petition No. 6766 of 2011 submits that he has made the said statement relying upon the news item published in the News Paper. He was not aware about the story of lease of disputed premises in favour of the petitioner. He submits that  he has come before this court, in order to protect  and preserve the disputed property which is the birth place of famous artist  Suchitra Sen. The petitioner has had no intention to assault the petitioner of Writ Petition No. 4608 of 2009 in any way.
  6. 43.          The learned Attorney General submits that since the District Administration has already taken steps to establish “Suchitra Sen Smriti Sangrahashala”, in fact, the second writ is redundant. From the impugned order dated 22.6.2009 (Annexure-A) of writ petition No.4608 of 2009 it appears the District Administration has already taken decision to establish a Sangrahashala. The contents of the said order runs as follows:-

         ÒDchyI“ wel‡q cwi‡cªw¶‡Z Rvbv‡bv hv‡”Q  †h, wf,wc, wgm †Km  bs-03(cve)/86-87 fyI“ Awc©Z m¤úwˇZ m¥„wZ msMªnkvjv cªwZôvi j‡¶¨ AvMvgx 08/07/2009 wL«t Zvwi‡Li g‡a¨ DI“ Awc©Z m¤úwËi  `Lj  †Q‡o  †`Iqvi Rb¨ Zvu‡K Aby‡iva Kiv n‡jv|Ó

  1. 44.          At the time of hearing the Rule the learned Deputy Attorney General produced the Photostat copy of the case record of V.P. Case No.3 (Pab) of 1986-1987 in this Court. On perusal of the case record it appears that the Deputy Commissioner, Pabna by a letter communicated under Memo No. †Rt cªt /cve/ ivR¯^/wf,wc,†Km-3(cve)/86-87/2009-1463 dated 02.09.2009  has requested the Secretary,MinistryLand for necessary approval stating the present position of scheduled property. Relevant portion of the said letter run as follows:-

         D‡j­L¨ †h, Dcgnv‡`‡ki cªL¨vZ PjwPÎ Awf‡bÎx mywPGv  †m‡bi ‰cwÎK wfUv n‡”Q Awc©Z  evWx| mywPÎv  †mb GB evox‡Z Zvi  ˆkke AwZevwnZ K‡ib Ges cvebv miKvix evwjKv DPP  we`¨vj‡qi covïbvKvjxb fvi‡Z P‡j hvb| cvebvi myax mgvR `xN©w`b hver GB weL¨vZ Awf‡bÎxi  ®g„wZ  weRwoZ evoxi eZ©gvb jxR evwZj K‡i Z_vq  mywPÎv †mb  ¯g„wZ  msMªnkvjv ¯nvc‡bi `vex K‡i Avm‡Q Ges G wel‡q RvZxq  I ¯nvbxq  ˆ`wbK cwÎKvmg~n  mg_©‡b cªeÜ I msev` cªKvwkZ n‡q‡Q| mykxj mgv‡Ri c‡¶  †_‡K  H evoxwU‡Z mywPÎv‡mb  ¯g„wZ msMªnkvjv ¯nvc‡bi Rb¨ Av‡e`b cvIqv hvq Ges G wel‡q  †Rvi `vex Ges Z`wei  Pj‡Q|

ewb©Z Ae¯nvax‡b my‡Î ewb©Z Ae¨vnZfv‡e GKmbv jx‡Ri Aby‡gv`b evwZj K‡i  †Rjv cªkvmb‡K  Ab¨vb¨ wf,wc, m¤úwË jxR cª`v‡bi g‡Zv ewb©Z  wf,wc, m¤úwË GKmbv jxR  cª`v‡bi ¶gZv w`‡q  †Rjv cªkvm‡bi Z˦veav‡b Dcgnv‡`‡ki cªL¨vZ Awf‡bÎx mywPÎv  †m‡bi ¯g„wZ msi¶‡bi my‡hvM `v‡bi Rb¨ webxZ  Aby‡iva Kiv n‡jv|

(W. G,‡K,Gg. gbRyi Kvw`i)                                            ‡Rjv cªkvmK, cvebv|

  1. 45.                In view of the fact that the District Administration has already taken steps to evict the leasee for establishment of “Suchitra Sen Smrity Sangrahashala” and the submission of the learned Attorney General for the State that Government has already taken decision to establish Suchitra Sen Srimiti Sangrashala in the disputed property, the rule as issued in the writ petition No. 6766 of 2011, in fact, has become  infractuous.
  2. 46.                The petitioner of first petition, i.e. Writ petition No. 4608 of 2009 entered into the scheduled property legally and had been in possession the same in accordance with law. The statements made in the second writ petition are not whole true.
  3. 47.                At the time of filing writ petition by way of public interest litigation   the petitioner of the second writ petition should have narrated the material facts correctly. In the case of Ashok Kumer Panday Vs. State of West Bengal reported in AIR 2004 S.C. page 280 it has been observed by the Supreme Court of India that before passing any order on PIL the court must be satisfied about (i) the credentials of the applicants (ii) The prima-facie correctness of the information given by him; and (iii) the information being specific and definite. The information should also show gravity and seriousness. In the present P.I.L. the credential of the applicant is well acceptable but he failed to fill up the other two requirements as quoted above. To file P.I.L. petition, the petitioner must come not only with clean hands but also with clean heart, clean mind and clean objective. We have no doubt that the petitioner has got all those qualifications but he has failed to give all informations before the Court. However we are concluding this issue with remarks made by Bhagabati J. in the case of S.P. Gupta Vs. Union of India (popularly known as First Judge’s Case)  reported in AIR 1982 S.C. Page 148 . It was observed that the frontiers of the public expending far and wide and new concepts and doctrines which will change the complexion of the law and which were so far embedded in the womb of the future are beginning to be born.
  4. 48.                In view of the facts and circumstances as mentioned above our considered conclusions are that –

(1)      Since the period of lease of the petitioner of Writ Petition No 4608 of 2009 expired  in 1415 B.S. and the authority  concerned has not renewed the lease of the petitioner, the petitioner is not entitled to hold the premises in question and he must vacate the possession of the same. His unauthorized occupation in the scheduled property cannot be protected on an application under Article 102 of the Constitution by this court.

(2)      Due to the possession for about 23 years as yearly lease the petitioner, who is a habitual defaulter in payment of lease money,  has not acquired any vested right in the property and to hold the possession of the scheduled premises so he is not entitled to get any direction from this Court to get lease to protect his possession. Conseque-ntly the direction as sought for is hereby refused.

(3)      Since the steps for establishment of “Suchitra Sen Smrity Sangrahashala” has already been taken by the authority, we do not find any necessity to interfere with the writ petition No. 6766 of 2011 filed by way of public interest litigation. The same is redundant.

(4)      The Government is directed to implement the decision of establishment of “Suchitra Sen Smrity Sangrahashala” immediately to protect and preserve the birth place of  Suchitra Sen considering her contributions in our cultural arena.

  1. 49.          In the result both the rules in Writ Petition No. 4608 of 2009 and writ petition No. 6766 of 2011 are discharged with the direction and observation made above.
  2. 50.          Stay granted in Writ Petition No. 4608 of 2009 and ad-interim direction passed in Writ Petition No. 6766 of 2011 are hereby recalled and vacated.
  3. 51.          At this stage Mr. Imran Siddique, the learned Advocate for the petitioner in Writ Petition No. 4608 of 2009 prayed for stay of the operation of the order of this Court for a period of two months to shift the school from the scheduled property.  For the ends of justice the petitioner is allowed two months’ time to shift the school from the scheduled property.
  4. 52.          The photocopy of the V.P. Case No.3 (Pab) of 1986-87 be kept with the record.
  5. 53.          Send the copies of the Judgment and order to-

(1)       Secretary, Ministry of Land,

(2)       Secretary, Ministry of Works,

(3)       Secretary, Ministry of Cultural Affairs,

(4)       Deputy Commissioner, Pabna and

(5)       Additional Deputy Commissioner (Revenue) Pabna for taking steps accordingly.

Ed.


*Writ Petition No.  4608 of 2009 with

   Writ Petition No. 6766 of 2011.

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