Robiul Islam and others Vs. Secretary Ministry of Land, Bangladesh Secretariat and others

Appellate Division Cases

(Civil)

PARTIES

Robiul Islam and others……………… Petitioners

-Vs-

Secretary Ministry of Land, Bangladesh Secretariat and others. ……Respondents.

JUSTICES

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Judgment Dated : 27th May 2007

East Bengal State Acquisition and Tenancy Act.

The Land Administration Manual. 1990, Article 229

Khulna City corporation Ordinance. 1984

Hat and Bazar (Establishment and Acquisition) Ordinance, 1959 as amended in 1966

Declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collusive, inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar. …………………..(2)

That the suit Bazar was established sometime in 1990 in the land of a private person and the then Mayor of Khulna City Corporation inaugurated market. The shopkeepers of the market formed a committee and are selling their respective goods and products in the market upon obtaining licence from the City Corporation and on payment of tolls to the City Corporation. Some interested persons in order to make illegal gain and to deprive the plaintiffs managed the above orders passed by the Ministry of land and other government functionaries directing to remove the Bazar upon demolishing the same……………………… (3)

Abdul Wadud Bhuiyan, Senior Advocate,  instructed by Md. Mahbubur Rahman,

Advocate-on-Record …………….For the Petitioners

T.H. Khan, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record. ……………….For Respondent No. 2

For Respondent Nos. 1,3-1076… ………….Not Represented.

Civil Petition For Leave to Appeal No. 1686 of 2005

(From the judgment and order dated 20.11.2005 passed by the High Court Division in Civil Revision Nos. 4703 and 5470 of 2003)

JUDGMENT

Md. Joynul Abedin J : This petition for leave to appeal has arisen out of the judgment

and order dated 20.11.2005 passed by a Single Bench of the High Court Division in Civil Revision Nos. 4703 and 5470 of 2003 discharging the rule and thereby affirming the judgment and decree dated 30.7.2003 passed by the Additional District Judge, 1st Court, Khulna in Title Appeal Nos. 290 and 314 of 2002 affirming the judgment and decree dated 7.8.2002 passed by the learned Senior Assistant judge, Khulna in Title Suit Nos. 82 and 77 of 2000 dismissing the suit.

2. The petitioners and the proforma-respondents Nos. 5-1077 as plaintiffs instituted Title Suit No. 82 of 2000 in the Court of the learned Assistant Judge, khulna Sadar, Khulna against the defendants Nos. 1-5 for declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collusive, inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar.

3. The case of the plaintiff-petitioners is that the suit Bazar was established sometime in 1990 in the land of a private person and the then Mayor of Khulna City Corporation inaugurated market. The shopkeepers of the market formed a committee and are selling their respective goods and products in the market upon obtaining licence from the City Corporation and on payment of tolls to the City Corporation. Some interested persons in order to make illegal gain and to deprive the plaintiffs managed the above orders passed by the Ministry of land and other government functionaries directing to remove the Bazar upon demolishing the same. The defendant No.2, Deputy Commissioner, contested the suit by filing a written statement contending that the suit was not maintainable and the bazaar in question was established in violation of law and the same was therefore liable to be removed and demolished inasmuch as no hut and bazaar are permitted to be established or maintained by any private individual after the East Bengal State Acquisition and Tenancy Act came into operation. The contesting defendant also raised a plea that the bazaar in question was liable to be closed down in terms Article 229 of the Land Administration Manual 1990.

4. The trial court dismissed the suit. Thereafter on appeal by the plaintiffs the appellate Court below dismissed the appeal and upheld the judgment and decree passed by the trial Court. The plaintiffs then moved the High Court Division in revision and the High Court Division discharged the rule affirming the judgment and decree passed by the appellate and the trail court dismissing the suit. This led the plaintiffs to file the civil petition for leave to appeal.

5. Mr. Abdul Wadud Bhuiyan, the learned Counsel for the petitioners submits that the High Court Division failed to understand the facts and circumstances of the case and came to a wrong conclusion. He next submits that the High Court Division erred in dismissing the suit without applying the amended law i.e. the Hat and Bazar (Establishment and Acquisition) Ordinance, 1959 as amended in 1966 and also by applying the provisions of the Land Administration Manual, 1990 which has no manner of application after the Khulna City Corporation Ordinance, 1984.

6. We have considered the impugned judgment and the connected materials on record. We are not impressed by the submissions of Mr. Abdul Wadud Bhuiyan. In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the material as on record and appreciation of law arrived at a correct decision. There is, therefore, no warrant in law to interfere with the same.

7. The petition is accordingly dismissed.

Source : V ADC (2008), 304

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