Government of the People’s Republic of Bangladesh & ors (Respondent)
Kemaluddin Hossain, CJ
Ruhul Islam, J
Badrul Haider Chowdhury, J
Shahabuddin Ahmed, J
April 14, 1980.
The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (President Order No. 16 of 1972) and Martial Law Regulation VII of 1977
On the passing of P.O. 16 of 1972 i..e from 28.2.1972 all abandoned properties shall vest in the Government to be dealt under P.O. 16 of 1972. This Order declared properties of certain categories of owners as abandoned property, all these properties coming within the scope of the Order shall vest in the Government on the commencement of the Order on 28-2-1972 and shall be administered, controlled, managed and disposed of, by transfer or otherwise, in accordance with the provisions of the Order………………………(5)
Once the appropriate authority decides the abandoned character of a property resulting in the vesting of that property in the Government the question whether the property is abandoned or not is not a justiciable issue before the High Court Division. ………………(6)
Emergency proclaimed on December 28, 1974 was revoked on November 27, 1979.
Decision of Martial Law Courts in Martial Law period is not challengeable except where there is want of jurisdiction or coram non judice.
As wrong decision by a Tribunal while acting within its jurisdiction stands but when an act is manifestly wrong and without jurisdiction that act cannot be protected on the basis of the expression ‘purported exercise’ in the validating clause of Fifth Amendment of the Constitution.
Martial Law Regulation VII of 1977 cannot be pleaded as a bar when the taking over or vesting of any property is without jurisdiction or coram non judice or malafide………(11)
Withdrawal of Martial Law or revocation of the Proclamation shall not relive any right or privilege not in existence at the time of such withdrawal or revocation.
T. H. Khan, Senior Advocate, instructed by Sajjadul Huq, Advocate-on-Record—For the Appellant.
Abdus Sobhan, Addl. Attorney-General, with Matiur Rahman, Asst. Attorney-General, instructed by B. Hossain, Advocate-on-Record— For the Respondents.
Civil Appeal No. 9 of 1980.
(From the Judgment and Order dated 13.12.1979 passed by the High Court Division in Writ Petition No. 296 of 1978)
Kemaluddin Hossain, CJ.—In this appeal a question of some public importance is involved, in that whether the learned Judges of the High Court Division were well founded in law in directing the abatement of a writ petition in view of sub-paragraph (1) of paragraph 5 read with paragraph 4 of Martial Law Regulation No. VII of 1977. This order of abatement was recorded along with some other writ petitions.
2. It is to be observed that the learned Judges did hot refer to the facts involved in any one of the writ petitions before them and decided the question of the application of aforesaid Martial Law Regulation on them. Facts in brief are that Md. Ahmad Hasan got a lease for 99 years from the Government in 1963 of plot No. 10-A/4-6, Mirpur Housing Estate, Dacca with a house standing thereon, and obtained possession in the same year. Appellant Nasiruddin on 13-10-71 entered into a contract to purchase the property with the owner lessee and in part performance of the contract got possession of the premises. The contract was not completed by sale and after liberation the appellant brought Title Suit No. 95 of 1975 in the Court of Sub-ordinate Judge, Dacca, impleading the Government of Bangladesh, which was decreed ex-parte on 5-12-77 and in execution a sale deed was registered through Court. Earlier to that on 17-10-77 Martial Law Regulation No. VII of 1977 was promulgated. The appellant filed writ petition No. 296 of 1978 challenging a notice being Memo No. AP-18-Sakha(a)/77/205 dated 21-3-78 issued by Abandoned Property authority asking him to hand over possession of the property in default he will be liable to be evicted. The writ petition along with other writ petitions was taken up for hearing on 13-12-79 when the order set out above was made and so far as the appellant is concerned the order is under challenge.
3. M.T.H. Khan learned Counsel appearing on behalf of the appellant has contended that his writ petition did not abate and it continued so that the appellant could establish his case which he has set up in his writ petition. It is, however, to be observed that no affidavit-in- opposition was filed as the writ petition was alleged to have abated. The contention of Mr. Khan requires consideration.
4. In view of our earlier decisions on the subject, we are not inclined to make a lengthy discussion of all the arguments made on the subject excepting briefly narrating the point that calls for determination.
5. Chronologically, we are to refer first to the Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (President Order No. 16 of 1972) promulgated on 28th February, 1972, which declared properties of certain categories of owners as abandoned property, and all these abandon, ed properties coming within the scope of the Order shall vest in the Government on the commencement of the Order i.e. 28-2-1972 and shall be administered, controlled, managed and disposed of, by transfer or otherwise in accordance with the provisions of the Order.
6. On this enactment, it is now well established by a series of decisions of this Division, that the abandoned character of a property requires a determination by the appropriate authority under the Order and once the determination is made the property shall vest from the date of the Order i.e., 28.2.1972 even though the determination may take place much later. It is also now well settled that whether a property is abandoned or not is a justifiable issue before the High Court Division in its writ jurisdiction. Several decisions were given by the High Court Division and this Division on abandoned property matters and while position was in that stage on 17-10-77. M.L.R. VII of 1977 was promulgated.
7. The salient provisions of this Martial Law Regulation may be recounted to ascertain its true import. It says, amongst other things, that where before the commencement of the Regulation any property or the possession, control, management, administration or other rights of, or in respect of any property has been or purported to have been taken over under the Acting President’s Order (A.P.O. No. 1 of 1972) or as abandoned property under or in pursuance of President Order No. 16 of 1972), such property shall notwithstanding any defect in the right or authority to take it over, shall vest and be deemed to have always vested in the Government. This taking over or vesting shall not be called in question on any ground whatsoever before any authority, or Court, and all suits, appeals, petitions or other legal proceedings pending before the commencement of the Regulation in any Court shall abate. The Regulation further provides all judgments, decrees, writs, injunctions, etc. passed before the commencement of the Regulation by any Court shall stand annulled and shall be of no effect, Regulation 6(2) says that annulment of any judgment, decisions, decree, writ, injunction referred to in the proceeding paragraph shall not disturb or otherwise affect the right or interests of any person in any property which before the commencement of the Regulation has been actually or effectively restored or transferred to such person by delivery of possession or other appropriate means in pursuance of judgment, decree, decision, etc. and such person shall exercise and have his rights and interest in the property as so restored and transferred as if no such annulment has taken effect in respect of such property. The Regulation also preserved the right of the Government which it had under President’s Order No. 16 of 1972 or any other law.
8. What on true construction is the scope of this Regulation has been considered in Halima Khatun’s case 30 D.L.R. (A.D ) 207 which arose out of two writ petitions which were dismissed by the High Court Division. In one, Peroz Ata, Dal and Rice Mill at Khulna as abandoned property and in the other Bangladesh Glass Works in Bogra as abandoned property were challenged. It has been held that the writ petitions abated in the context of the facts of those cases. The writ petition in one was dismissed earlier on the ground that the determination of the dispute whether the property was abandoned property was a disputed question of fact and could not be resolved by the affidavits of the parties, and, in the other, on the ground that the properties were rightly declared as abandoned property. In the context of the facts of those cases, it was ordered that the writ had abated in terms of this Regulation. The observations made in Halima Khatun’s case regarding abatement of the writ requires some clarification that will presently be made after we have discussed to other cases touching on the point. One is of Haji Joynal Abedin and the other Khondker Ehteshamuddin Ahmed Iqbal.
9. In Haji Joynal Abedin’s case the conviction and sentence of five accused persons passed by the Special Martial Law Court was challenged and the question was whether the order of the Martial Law Court or an order of transfer by the Government under Regulation 3(2) of Martial Law Regulation No. 1 of 1&75 was open to challenge in the writ jurisdiction of the High Court Division before the lifting of the Martial Law from the country. It was observed that neither the vires of clause (2) of Regulation 3 of Martial Law Regulation No. 1 of 1975, nor any order transferring the case to a Special Martial Law Court can be challenged in any Court of law. In the case of Khondker Ehteshamuddin Ahmed & Iqbal, the conviction and sentence, of the Special Martial Law Court under section 302 of the Penal Code against the accused was challenged on several grounds. There the question again cropped up whether a decision of the Martial law Court was open to challenge in the writ jurisdiction of the High Court Division after the lifting of the Martial Law from the country. In Iqbal’s case two new factors came up for consideration: one was withdrawal on 6th April, 1979 of Proclamation of 20th August, 1975 and all subsequent Proclamation and all Martial Law Regulations and Orders; and the other, Act 1 of 1979 known as Fifth Amendment of the Constitution. It is to be observed that the emergency proclaimed on December 28, 1974 was also revoked on November 27, 1979. In view of the challenged circumstances, the question arose whether the decisions of the Martial Law Courts have become amenable to writ jurisdiction of the High Court Division. After careful consideration of all the relevant proclamations and Regulations and enactments and considering all aspects of the question, this Division has expressed the opinion that such decisions or orders passed by the Martial Law Court or any authority under such Regulation during the Martial Law period are protected from being challenged under the writ jurisdiction of the High Court Division except in case of want of jurisdiction or coram non judice or mala fide.
10. It is to be observed that when an authority is vested with a jurisdiction to do certain acts and in the exercise of that jurisdiction he does it wrongly or irregularly the action can be said to be done within the purported exercise of his jurisdiction. But an act which is manifestly without jurisdiction, such as the property which not being an abandoned property within the meaning of Presidential Order 16 of 1972 is declared to be so, or in case of judicial or quasi judicial act which is coram non judice, the use of the expression ‘purported exercise’ in the validating clause of Fifth Amendment of the Constitution cannot give such act the protection from challenge, it being ultra-vires. It is true mala fide act is also not protected, but than mala fide is to be pleaded with particulars constituting such mala fide and established by cogent materials before the Court.
11. We do not feel that any further discussion is called for on the point, excepting making some clarification on the decision made in Halima Khatun’s case as stated earlier. In Halima Khatun’s case the decision is that if any action of taking over or vesting of a property conies within the mischief of Martial Law Regulation VII of 1977, any proceedings seeking to challenge the taking over or vesting of such property shall abate. The further observation that requires to be made is that abatement of the proceedings will follow in such cases, except where the taking over or vesting is without jurisdiction or coram non judice or it is mala fide and, in such circumstances such action or order is not protected under the said Regulation. With this clarification in Halima Khatun’s case and in conformity of the two decisions set but, is to be held that there cannot be any question of abatement of any legal proceedings taken by an aggrieved person to protect his legal right or interest in the property against which action has been taken or vesting order made which is without jurisdiction or coram non judice or mala fide. Except within this narrow compass the proceedings coming within the mischief of M.L.R. VII of 1977 shall abate.
12. Mr. Abdus Sobhan learned Additional Attorney-General has with justification argued that the observation of the learned Judges that with the lifting of Martial Law the proceedings which had abated have became justifiable has no legal foundation. Apart from the general principle of law which says that repeal does not revive anything under repealed enactment, in the Fourth Schedule of the Constitution, Article 3A clause (b) clearly provides that revocation of the said Proclamation and withdrawal of Martial Law shall not revive or restore any right or privilege which was not existing at the time of such revocation and withdrawal. Therefore, if prior to the withdrawal of all proclamations and Martial Law Regulations on 6.4.79, any proceedings had abated in terms of the provisions of M.L.R. VII of 1977 they cannot be revived. The submission of Mr. Sobhan to this extent is of substance and may be accepted.
13. On a discussion and review of relevant provisions set out above, it is found that, whether a property comes within the mischief of Abandoned Property Order (President’s Order No. 16 of 1972) is justifiable issue before the writ jurisdiction of the High Court Division, except that any action of taking over or vesting of the property within the terms of President’s Order No. 16 of 1972 or Acting President’s Order No. 1 of 1972 shall vest and be deemed to have vested in the Government in terms of M.L.R. VII of 1977, and is immune from challenge, and any proceeding seeking to challenge such taking over or vesting of property shall abate, except that any such action of taking over or vesting of property made under the provision aforesaid, which is without jurisdiction or when the action is quasi judicial is coram non judice, or the action is mala fide. The justifiability of an issue under the President’s Order No. 16 of 1972 again is restricted to the extent herein set out.
14. Applying this principle, we find that the view taken by the learned Judges of the High Court Division is too sweeping and has extinguished the proceedings at the very threshold of the Court, without looking into competence of the writ, and whether the proposed action of the authority against the appellant is protected by any of the provisions of M.L.R. VII of 1977 with reference to facts, so as to declare proceedings to have abated. There is merit in the submission of Mr. T. H. Khan, when he says that the appellant got into the possession of the property on the footing of contract of sale in October 1971, long before any one of the offending provisions of M. L. R. VII of 1977 or Presidential-Orders affecting his right came into existence, and he is still in possession, and so his possession never came within the mischief of M. L. R. VII of 1977, and he can under President’s Order No. 16 of 1972 defend his possession in the writ jurisdiction. Since this question has not act at all been discussed or decided by the High Court Division and no material has come from the side of Abandoned Property authorities to defend their action, this question requires to be properly determined by the High Court Division and so we refrain from dwelling on it.
For the reason, we allow the appeal, set aside the order of the High Court Division and remit the case back to it for decision in the light of the observation made above. There will be no order as to costs.
Source : 32 DLR (AD) (1980) 216