Appellate Division Cases
(Civil)
PARTIES
Nazma Ahmed and others………………. Petitioners
-Vs-
Bangladesh represented by the Secretary, Ministry of Housing and Public Works,
Government of the People’s Republic of Bangladesh, Bangladesh
Secretariate Ramna. Dhaka and another…………….. Respondents
Syed J. R. Mudassir Husain CJ
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J
Judgment Dated: 20th July 2006
Seeking declaration that the property was not an abandoned property but the plaint of the suit was rejected…………………………. (2)
The petitioners could not file any original document including the alleged power of attorney and since the documents are forged and fictitious, they filed photocopies only and as such the High Court Division rightly discharged the Rule. He further submits that the writ petition has been filed by the petitioners having no locus standi.……………………….(8)
The petitioners claim is based on power of attorney dated 18.01.1972. The said document is the basic document in support of the claim of the petitioners. But the persistent case of the respondents is that the aforesaid power of attorney is a forged document and in fact Mrs. Rasheda Ashfaq was not present in Bangladesh on 18.01.1972 and through impersonation the deed has been procured. The original deed of power of attorney could not be produced at any time ……………….(11)
If the story of power of attorney in favour of A. M. M. Khan goes, the basis of the claim of the petitioners falls through inasmuch as on the strength of ihe aforesaid power of attorney Sultan Ahmed, the vendor of the leave petitioner No.5 claims the property. If the so called power of attorney holder does not have any authority, there is no legal value of his alleged transfer to Sultan Ahmed. In such view, the claim of leave petitioner I\o.5 claiming title to the property has no leg to stand. Regarding other documents the less is said, the better. It is surprising to find that inspite of repeated demands not a single original deed whatsoever, in support of the claim of the petitioners has been produced at any stage of hearing the matter before the High Court Division or before this Division ………….(14)
Regarding the objection as to non service of notice, the learned Deputy Attorney General replies that the whereabouts of the lessee Mrs. Rasheda Ashfaq being unknown and the building being found in possession of some unauthorised persons there was no necessity nor any possibility to serve notice. In the facts and circumstances we find force in the submission…………. (15)
M. I. Fawoqui, Senior Advocate (Mohsen Rashid, Advocate, with him) instructed by M. G. Bhuiyan, Advocate on-Record. …………For the Petitioners
A. S. M. Khaliquzzaman, Advocateon-Record ……………….For the Respondents
Civil Petition For Leave To Appeal No.1621 of 2005
(From the judgment and order dated 06.07.2005 passed by the High Court Division in Writ Petition No.6187 of 2000.)
JUDGMENT
Amirul Kabir Chowdhury J : Nazma Ahmed and four other Writ Petitioners seek leave to appeal against the judgment and order dated 06.07.2005 passed by a Division Bench of the High Court Division in Writ Petition No.6187 of 2000 discharging the rule.
2. The petitioners instituted Writ Petition No.6187 of 2000 stating, inter-alia. that one Mrs. Rasheda Ashfaq took lease of the land measuring 19 katha and 7 satak at Plot No.5, Block-NW(D), Road 58, Gulshan Model Town, Dhaka for a period of 99 years with effect from 05.12.1963 and a registered deed of lease dated 25.02.1964 was executed to the effect with Dhaka Improvement Trust (DIT) now Rajdhani Unnayan Kartripakhkha
(RAJUK) and that she constructed a one storied building thereon and that being in possession of the property she transferred the same to Sultan Ahmed husband of the
petitioner No. 1 by deed of conveyance dated 14.07.1972 and the name of aforesaid
Sultan Ahmed was mutated in the records of Dhaka Improvement Trust and that the aforesaid Sultan Ahmed died leaving behind the petitioner Nos.l to 4 as his successor-in-interest and that they have been in possession of the property peacefully and that they entered into agreements for sale on 14.06.1996, 09.09.1997 and 26.06.2000 in favour of the petitioner No.5 Mrs. Parveen Akhtar and took advance money from her and delivered
possession of the property but to their utter surprise they came to learn that the property has been published in Bangladesh Gazette dated 23.09.1986 enlisting the property in the ‘Kha’ list as abandoned property, that the petitioners made representation to the Ministry of Works for deletion of the property from the list of abandoned property but to no effect and that they instituted Title Suit No. 163 of 1997 seeking declaration that the property was not an abandoned property but the plaint of the suit was rejected on 09.03.2000 as the jurisdiction of the Civil Court was barred by Section 6 of Ordinance No.LIV of 1985. The petitioners therefore felt constrained to file the writ petition and a Rule was issued.
3. The rule was opposed by the respondents filing affidavit-in-opposition denying the claim of the petitioners and stating further that Mrs. Rasheda Ashfaq was a non-bengali and left Bangladesh and the alleged deed of transfer to Sultan Ahmed was a forged one and that on 28.02.1972 the building in question was found abandoned and as such has been enlisted by the Government as an abandoned property and that subsequent deed of transfer, if any, dated 14 July 1972 does not have any legal basis as aforesaid Mrs. Rasheda Ashfaq was not a citizen of Bangladesh and that the documents produced by the
petitioners with the writ petition were all fictitious documents created to grab the property and the claim of possession of the petitioners was also denied.
3. It has been contended that after the war of liberation the whereabouts of Mrs. Rasheda Ashfaq could not be traced out and the house was occupied by some Unauthorised persons and that Mrs. Rasheda Ashfaq did never execute any power of attorney to Mr. A. M. M. Khan or anybody and as such he had no authority to transfer the property to Mr. Sultan Ahmed. After hearing the parties the High Court Division by the impugned judgment and order discharged the rule.
5. Hence is this petition. 6. In support of the petition Mr. M. I. Farooqui, learned Counsel submits, inter-alia, that service of notice for enlistment of a building in the list of abandoned property is a condition precedent and that in the instant case there being no service of such notice the enlistment of the property as abandoned property is without lawful jurisdiction.
7. He further submits that the petitioners being in possession are protected against others except any other person having better title and in the present case Government having no better title the action of the respondents in declaring the property as abandoned property is illegal and that the petitioners by producing documents including title deeds have discharged their onus and as such the High Court Division committed error in discharging the rule.
8. Mr. A. S. M. Khalequzzaman, learned Advocate-on—Record, on the other hand, opposes the petition contending, inter-alia, that the petitioners could not file any original
document including the alleged power of attorney and since the documents are forged and fictitious, they filed photocopies only and as such the High Court Division rightly discharged the Rule. He further submits that the writ petition has been filed by the petitioners having no locus standi.
9. He thereafter submits that whereabouts of the original allottee Mrs. Rasheda Ashfaq being not traced out the property has been legally declared as abandoned property.
10. He also submits in this connection that Title Suit No. 163 of 1997 was filed by the
petitioner unsuccessfully to declare that enlistment of the property as abandoned property as illegal.
11. We have considered the submissions and perused the materials on record. The
petitioners claim is based on power of attorney dated 18.01.1972. The said document
is the basic document in support of the claim of the petitioners. But the persistent
case of the respondents is that the aforesaid power of attorney is a forged document and in fact Mrs. Rasheda Ashfaq was not present in Bangladesh on 18.01.1972 and through impersonation the deed has been procured. The original deed of power of attorney could not be produced at any time.
12. In reply the learned Counsel for the petitioners referring to an office note of
DIT/RAJUK dated 15.09.1972 submits that the aforesaid power of attorney along with other papers was filed before DIT (RAJUK). We called for the records from the office of RAJUK. On perusal of the records it appears that on various dates the original documents relied on by the petitioners in support of their claim were called for, by RAJUK but the original documents were not produced. It of cause appears that in the office note dated
15.09.1972 it has been mentioned that some original documents were produced before one “f^s ^§ ^rf§” but on the very day the said documents are said to have been returned.
13. The learned Counsel for the petitioners, on our query, could not satisfy us as to whom the original documents, if any, were produced. There is nothing on record to indicate as to when the documents if produced were taken back. More so there is nothing to ascertain as to what kind of original documents, if any, were produced. Did it include the original power of attorney? More so on perusal of the writ petition it appears that there is no mention of the aforesaid power of attorney in favour of Mr. A. M. M. Khan. In such view of the matter we are unable to give credence to the submission of the learned Counsel for
the petitioners as to existence of any power of attorney as alleged. We are therefore of the view that the fact of having any original power of attorney could not be proved by the petitioners.
14. If the story of power of attorney in favour of A. M. M. Khan goes, the basis of the claim of the petitioners falls through inasmuch as on the strength of the aforesaid power of attorney Sultan Ahmed, the vendor of the leave petitioner No.5 claims the property. If the so called power of attorney holder does not have any authority, there is no legal value of his alleged transfer to Sultan Ahmed. In such view, the claim of leave petitioner No.5 claiming title to the property has no leg to stand. Regarding other documents the less is
said, the better. It is surprising to find that inspite of repeated demands not a single original deed whatsoever, in support of the claim of the petitioners has been produced
at any stage of hearing the matter before the High Court Division or before this Division.
15. Regarding the objection as to non service of notice, the learned Deputy Attorney General replies that the whereabouts of the lessee Mrs. Rasheda Ashfaq being unknown and the building being found in possession of some unauthorised persons there was no necessity nor any possibility to serve notice. In the facts and circumstances we find force in the submission.
16. Most of the submissions made on behalf of the petitioners being stoutly denied by the respondents we find that hotly disputed facts are involved in the matter which cannot be decided in the writ petition.
17. After giving our consideration to the materials on record and the submissions of the parties, we are led to irresistible opinion that the petitioners failed to succeed to establish their claim.
18. In this view of the matter the submissions made on behalf of the petitioners are bereft of substance.
19. We have perused the impugned judg- ment of the High Court Division. It appears that the High Court Division has correctly decided the case and as such the impugned judgment does not call for our interference.
20. In view of the discussion made above, the petition is dismissed.
Source : V ADC (2008), 224