Md. Shafiuddin Miah and another Vs. Rajdhani Unnayan Kartnpakhya

Appellate Division Cases

(Civil)

PARTIES

Md. Shafiuddin Miah and another ……………………..Appellants

-vs-

Rajdhani Unnayan Kartnpakhya and others ………………..Respondents

JUSTICE

Latifur Rahman J

Bimalendu Bikash Roy Choudhury J

A.M. Mahmudur Rahman J

Mahmudul Amin Choudhury J

JUDGEMENT DATE: 27th July, 1999

The Building Construction Act, 1952, Section 9.

Code of Civil Procedure (V of 1908),

Order IX Rule 13.

The learned Judge of the High Court Division held that since a suit is pending between respondent No. 4 and her two brothers for declaration of title, recovery of khas possession, cancellation of power of attorney and for cancellation of sale deeds the RAJUK has taken a reasonable and lenient view by merely passing the order of suspension of the construction work without cancelling the plan …………….(5)

Objection having been raised before the RAJUK, RAJUK adjudicated the same and temporarily suspended the plan and the effect of that is the suspension of the constructing work. Truly speaking it is not case of usurpation of the jurisdiction of the civil court but a case of exercise of jurisdiction of the RAJUK under the Building Constructions Act, 1952 which authorises it either to cancel or suspend the sanctioned plan …………………..(11)

Civil Appeal No. 106 of 1997 (From the Judgment and Order dated 3-6-97 passed by the

High Court Division in Writ Petition No. 2042 of 1994)

Rafique-UL-Huq, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record …………………………For petitioner

Md. Hannan, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record ………………………. For respondent No.4

Ex parte ……………………Respondent Nos. 1 -3

JUDGMENT

1. Latifur Rahman J: – This appeal following leave at the instance of the writ petitioner appellants is against the judgment and order dated 3.6.97 passed by a Division Bench of the High Court Division in Writ Petition No.2042 of 1994 discharging the Rule.

2. The appellants obtained sanction for a plan from RAJUK to construct a 10- storied building on 16-11-89 in the disputed land which was purchased by them from Anwer Rahim, Akhter Rahim, the two brothers and their sister, Mrs. Razia Rahim (respondent No.4) who inherited 1.20 arces of land of C.S. plot No. 329 and a part of C.S. plot Nos. 307 and 331 of Mouza Bara Maghbazar, PS. keraniganj (now Ramna), Dhaka from their late father Dr. Habibdur Rahim. The appellants purchased. 74 acres of land from out of 1.20 acres. Anwar Rahim sold some portion of the said land to others and .46 acres still remain the ejmali property of the two brothers and the said sister. Before the plan was sanctioned respondent No. 4 filed an objection to the RAJUK complaining that she had filed Title Suit No. 9 of 1983 for a declaration of title to the land purchased by the appellants, recovery of possession, cancellation of the power of attorney and cancellation of sale deeds in favour of the appellants. The suit was dismissed for default on 22-12-86 but an application under Order IX Rule 13 C.P.C ws filed and Miscellaneous case No. 104 of 1987 was started on 4-2-87 . RAJUK considered the objection and upon obtaining the opinion of its legal adviser sanctioned the plan on 16-11-89. Upon the appellants application the plan was re sanctioned on 9-2-93. While the appellant constructed the multi storied building upto the 4t n floor after investing huge amount of money respondent No.4 again objected to RAZUK against the sanctioning of the plan, whereupon without hearing the appellants and giving them any notice the Authorised Officer issued notice on 6-12-93 directing them to stop all further construction pending disposal of the pending suit or else steps would be taken under the Building Construction Act against them. The appellants filed an appeal on 4-1-94 and were thereafter informed by the impugned notice dated 30-4-94 that the Appellate authority on obtaining the opinion of the legal adviser of RAJUK decided that the previous order dated 6.12.93 passed by the Authorised Officer will remain in force till disposal of the pending suit.

3. The appellants thereafter filed the instant Writ Petition challenging the impugned notice dated 30-4-94 . It is their case that Anwar Rahim and Akhter Rahim themselves and as attorney of their sister Mrs. Razia Rahim, respondent No. 4 duly executed and registered the sale deed in favour of the appellants. The plan was sanctioned in 1989 and in 1993 with the full knowledge of the pending suit.

4. By filing separate affidavits-in- opposition respondent No.l RAJUK and respondent No. 4 Mrs. Razia Rahim asserted that since there was litigation amongst the brothers and sister with regarded to the land sold to the appellants any construction over the said land should not be allowed and if it is allowed respondent No. 4 will be highly prejudiced. It was stated that Title Suit No. 9 of 1983 was restored in Miscellaneous Case No. 104 of 1987 by order dated 22-1-94 on payment of a cost of TK. 10,000/0 and the said suit is pending. By creating a false power of attorney on her behalf the brothers of respondent No. 4 executed and registered the sale deed in favour of the appellants and as such the sanction for a building plan was approved under questionable circumstances. Respondent No.l contended that there was a clause in the sanction letter dated 16-1189 that if there is any dispute regarding “(possesspr right)” of the land described in the plan then the plan will be deemed to have been cancelled under Section 9 of the Building Construction Act.

5. The learned Judge of the High Court Division held that since a suit is pending between respondent No. 4 and her two brothers for declaration of title, recovery of khas possession, cancellation of power of attorney and for cancellation of sale deeds the RAJUK has taken a reasonable and lenient view by merely passing the order of suspension of the construction work without cancelling the plan.

6. Leave was granted to consider whether the High Court Division was correct in cancelling/suspending the plan on the ground of dispute as to title whereas condition No. 2 in the plan itself shows that the sanctioning authority can cancel the sanctioned plan on the ground of dispute as to possessory right namely, and whether the plan having been sanctioned with the full knowledge of the existing civil suit between the parties, RAJUK could temporarily suspend the construction under the plan.

7. Leave was also granted to consider whether the High Court Division was wrong in not holding that the sanctioning authorities usurped the power of the civil court and wrongly suspended the sanctioned plan thereby stopping the construction of the building of the appellants to their great prejudice when apparently there was no suppression of any fact in obtaining the sanctioned plan.

8. Leave was further granted to consider whether the High Court Division failed to consider the fact that respondent No. 4 has only claim in the property to the extent of 1/5 of her deceased fathers sahre, of total land of 1.20 acres and that her share can be fully met from within remaining .46 acres of land which are in email ownership and possession of the two brothers and respondent No. 4(sister).

9. It is not disputed before us by any of the parties that RAJUK has no authority under Section 9 of the Building Construction Act, 1952 to cancel /suspend a sanctioned plan for breach of any of the terms or conditions or for making any incorrect statement under which such sanction was granted.

10. It is found from the materials on record that respondent No. 4 sister of the appellants filed Title Suit No. 9 of 1993 in the Court of 3rd Subordinate Judge, Dhaka for declaration of title, khas possession and for cancellation of the deed of alleged power of attorney and sale deeds. Respondent No. 4 also filed another earlier title suit, being Title Suit No. 657 of 1980 in the 3 r d Court of Munsif. Dhaka, subsequently renumbered as Title Suit No. 61 of 1986 for permanent injunction against the appellants claiming possession of 20 kathas of land in the eastern side of he aforesaid property. Subsequently, the said suit of permanent injection was withdrawn and Title Suit No. 9 of 1993 proceeded. In the meanwhile, Title Suit No. 9 of 1993 was dismissed for default and the same was restored and still pending for adjudication. Respondent No.4 b y filing an application before the RAJUK alleged that by creating false power of attorney her brother executed and registered false deeds in favour of the appellants and hunch the plan need to be cancelled as in the said suit not only right, title and interest but possessor interest of respondent No.4 is also involved. If in the meanwhile the appellant are allowed to construct the multi storied building respondent No.4 will suffer irreparable loss and injury in the case of her success in the pending suit. RAJUK having come to know of this pending suit between the brothers and sister temporarily suspended the plan till disposal of the suit without cancelling the plan. Thus, RAJUK was within its jurisdiction to temporarily suspend the sanctioned plan as per the condition stipulated in the plan as a dispute really arose over title and possessor interest of the parties. In that circumstances, the order of temporary suspension of the plan cannot be said to be illegal, arbitrary and without any jurisdiction. It is also on record that before suspension of the plan by the RAJUK both the parties were heard and thereafter the decision was taken by RAJUK. Thus Condition No.2 in the sanctioned plan having been violated RAJUK had the legal authority either to cancel the plan or suspend it temporarily.

11. It may be stated that respondent No.4 in the suit without praying for injunction filed an objection petition before the RAJUK for cancellation of the plan and RAJUK on hearing the parties temporarily suspended the plan till disposal of the pending suit. Thus, in the facts of the case it is difficult to say that RAJUK usurped the power of the civil court and thereby wrongly stopped the construction of the building of the appellants to their great prejudice. In view of the pending litigations between the parties complications may arise for getting recovery of possessing of the building if, construction is completed meanwhile. As a matter of fact, objection having been raised before the RAJUK, RAJUK adjudicated the same and temporarily suspended the plan and the effect of that is the suspension of the constructing work. Truly speaking it is not case of usurpation of the jurisdiction of the civil court but a case of exercise of jurisdiction of the RAJUK under the Building Constructions Act, 1952 which authorises it either to cancel or suspend the sanctioned plan. It may be stated that the plan was first sanctioned in 1989 but as a matter of fact Civil suits started between the parties in 1980 and this fact was not known to RAJUK. Thus there was suppression of facts till the same was brought to the notice on RAJUK by respondent No.4

12. In view of our forgoing discussions, it is needless to enter into the question as to whether respondent No.4 who has only 1/51th share in her father’s property would get her share from the remaining ejmali property.

13. RAJUK having lawfully exercised its jurisdiction within the fore-corner of the Act there is nothing for our interference with the impugned judgment of the High Court Division. Consequently, the appeal is dismissed without any order as to costs.

Ed

Source: I ADC (2004), 570

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