Appellate Division Cases
(Civil)
PARTIES
Sheikh Liaquat Ali and others……………………….. Appellants.
-vs-
The Secretary, Ministry of Land Reforms and Land Administration,
Government of Bangladesh and others ………………………..Respondents
JUSTICE
M.H. Rahaman. J.
A.T. M. Afzal. J.
Mustafa Kamal. J.
Latifur Rahaman. J.
JUDGEMENT DATE: 23rd February, 1995
Constitution of Bangladesh Article 102.
Since we are proposing to remand the case to the High Court Division for disposal in accordance with law, we refrain from entering into the merits of the case, Suffice it to say that on the findings of the learned Judges themselves it is not a case where the exercise of jurisdiction under Article 102 of the Constitution could be summarily withheld by holding that the writ petition was not maintainable…………….. (6)
Civil Appeal No. 5 of 1994. (From the Judgment and order dated 8.3.93 passed by the High Court Division in writ petition No. 333 of 1993).
Habibul Islam Bhuiyan, Senior Advocate, instructed by Sajjadul Huq, and Advocate-
Record… ……………For the Appellants.
M. Shamsul Alam, D.A. G. instructed by Shamsul Haque Siddique, Advocate-on-
Record ……………For the Respondents.
JUDGMENT
1. Latifur Rahman, J: – This appeal by leave at the instance of the writ petitioners is directed against the judgment and order dated 8.3.93 passed by a Division Bench of the High Court Division summarily rejecting writ petition No. 333 of 1993.
2. Li the Writ-Petition before the High Court Division, the appellants challenged the acquisition of the appellants’ house named “Usree” situated at 14/1 ,Topkhana Road, Dhaka vide L.A. Case No, 27/69-70 and the unauthorized occupation thereof by the respondents with a prayer for direction upon the respondents to restore possession of the said house to the appellants, The lands in Khas mahal plot No, 188 of Ward No, 3, Sheet No, 20, being Municipal Holding No. 14/1, Topkhana Road, Dhaka originally belonged to the Collector of Dhaka, who on 30.11.37 settled the same by way of lease for 23 years 3 months by a registered Deed of Lease in favor of Professor Sattyandra Nath Roy, a Professor of the Dhaka University, After taking lease of the said land Professor Roy Construted a two-storied building thereon and named the same as Usree. He however, gifted the said property in favour of his wife Sreemati Sujata Roy by a registered Deed dated 18.5.40. After partition, the then Government requisition ‘Usree’ on 23.9.47 under the (Emergency) Requisition of Property Act, 1948. The Government paid rent to Sreemati Sujata Roy regularly. She thereafter sold the property to Munshi Ashraf Ali, father of the appellants, by a registered Sale Deed dated 26.3.57. After that Munshi Ashraf Ali became the owner of the aforesaid property. The Government paid rent thereafter to Munshi Ashraf Ali. The lease period of the aforesaid property was extended by the Collector of Dhaka for a further period of 30 years by a registered deed dated 7.8.61 executed by him in favour of Munshi Ashraf Ali. Later, the Government by its Memo No. 828/85/1023(64) dated 17.10.85 decided that the renewable long term lease of the khas Mahal non-Agricultural land shall henceforth be deemed to be permanent lease and no further renewal thereof will be required, Munshi Ashraf Ali thereafter submitted several representations to the relevant Government authorities for de-requisition of the house and after relentless requests and persuasions the government was pleased to de-requisition the house by an order dated 9.7.71. after liberation of the country Munshi Ashraf Ali rented out the house to the Bangladesh National Awami Party which used and possessed the same as their party office. They paid rents regularly to the father of the appellants, after creation of BAKSAL in January, 1975, the Bangladesh National Awami Party was merged therein, So, they informed the owner of the house Munshi Ashraf Ali that there was no need for them to maintain a separate party office and that they would vacate the house, They, however, did not specify the time when they would actually vacate the house, Bangladesh National Awami Party was in possession of the house up to April, 1975, Sometime in May, they left the house without formally handing over possession thereof to the owner, Having heard that NAP has left the house Munshi Ashraf Ali went to ascertain the fact and to his utter surprise found the gate of his house locked and police guard posted there. On enquiry he learnt that the Deputy Commissioner Dhaka has taken over possession of the house, So, he went to the office of the Deputy Commissioner, Dhaka where he was told that the house has been acquired by the Government by an order dated 17.9.71 in L. A. Case No 27/69-70 for establishment of the Press-Club thereon, on getting this information Munshi Ashraf Ali became surprised and perplexed because no notice of acquisition was ever served on him. However, he immediately submitted a representation to the Government for release of the house but soon he fell seriously ill and eventually died on 18.3.76. At the time of his death his eldest son (appellant No. 1) was very young and a student and the other two children were minors. They did not know anything about the properties left by their father. Later the widow of Munshi Ashraf Ali also died on 5, 4, 82; as a result the appellants could not continue the process of release of the house started by their father Munshi Ashraf Ali. Afterwards the children of late Munshi Ashraf Ali, that is, the appellants submitted various representations to the Government for release of their house on the grounds that no notice of acquisition having been served upon the owner, the acquisition was illegal and that the Press-Club having been established elsewhere, there is no need to retain the house and hence the house should be released. In the meanwhile the possession of the house had been taken over by the Director, Government Accommodation, Ministry of works and they started claiming title thereof. The Ministry of works also rented the house to the National Security Intelligence Department on 27.8.76. On the representation of the appellants the Additional Deputy Commissioner (Rev), Dhaka vide his memo dated 25.1.82 requested the Director, Government Accommodation to inform him as to how they are possessing the house by claiming title. But they did not respond. The appellants again submitted representation to the Ministry of land Administration and Land Reforms for release of the house where after the Ministry vide its Memo No. RP-9/83/639-Acqn dated 25.10.83 directed the Additional Deputy Commissioner (Rev), Dhaka to hold a thorough enquiry and to furnish a report regarding ownership of the house. Thereafter the Additional Deputy Commissioner (Rev), Dhaka submitted a detailed report.
3. Thereafter the Ministry of Land Administration and Land Reforms again sought for a report from the Deputy Commissioner of Dhaka who vide his memo No. 327(A) (S) L.A. Section 3/85 dated 7.3.85 submitted a very detailed report stating that the purpose for which the house was acquired does no longer exist as the Press-Club building has been established elsewhere. He recommended for release of the house. The National Security Intelligence Department was requested to release the house but they refused vide its Memo No, G/l 123/159-76(Establishment) dated 28.3.85.
4. The Ministry of land Administration and land Reforms vide its Memo No, 2-1/85 (Administration)-11 dated 2,4,85 asked the Director, Government Accommodation, Ministry of works to release the house immediately. The Ministry also asked the Deputy Commissioner, Dhaka, to release the house in favor of the appellants vide its letter dated 18,6,85. But they did not respond. The appellants requested the respondents to release the house but they did not do anything positive towards release of the house although they always verbally indicated that they are doing the needful to release the house. The appellants approached all the concerned authorities and moved from door to door and waited for a long time for release of their house but all their efforts went in vain. The respondents did not release the house. Hence the appellants filed writ petition before the High Court Division.
5. The learned Judges of the High Court Division summarily rejected the writ petition as not maintainable. Leave was granted to consider whether the learned Judges of the High Court Division misconceived the scope of writ petition by treating it as an application for eviction of a tenant or trespasser and summarily rejected the writ petition as not maintainable by ignoring the fact that the appellants in fact challenged the alleged acquisition in L. A. Case No. 27 of 1969-70 and the forceful possession of the house by the respondents under the cover of an acquisition proceeding treating the house as Government property and refusing to restore possession of the house to the appellants.
6. Since we are proposing to remand the case to the High Court Division for disposal in accordance with law, we refrain from entering into the merits of the case, Suffice it to say that on the findings of the learned Judges themselves it is not a case where the exercise of jurisdiction under Article 102 of the Constitution could be summarily withheld by holding that the writ petition was not maintainable. The learned Judges of the High Court Division themselves found as follows:”It appears from the record that this property is no longer a property under requisition or acquisition, It is ordered to be released by the Deputy Commissioner but the owners of the property could not get the possession. National Security and Intelligence Department could not move out from the building and only because National Security and Intelligence has spent a lot of money it would not be said that they would preserve on the possession of the property belonging to the petitioners, which is neither requisitioned or acquisitioned nor it is a government property and when the property is ordered to be released as in Annexure-being not required any more for the Press-Club for which it was originally requisitioned”.
7. On the above findings, we are of the view that the house in question was not being held by the National Security and Intelligence Department of the Government either as a tenant or as a trespasser, but really under the cover of an alleged acquisition of property and as such summary rejection of the writ petition was not called for in the facts and circumstances of the present case as found by the High Court Division itself. All the respondents in this case are Government functionaries and they are duty bound under the law to explain as to under what authority other than under the cover of alleged an order of acquisition of property in L. A. Case No. 27 of 1969-70 they are occupying the house in question and as to whether the order of acquisition, if any, is still good.
8. It will not be out of place to mention that after going through the concise statement of the respondents, we find that the Government also asserted that the house had been acquired for Press Club in L.A. Case No, 27 of 1969-70 and possession has been retained on that basis and subsequently National Security and Intelligence Department was inducted and is in possession of the house.
9. For the foregoing reasons, the appeal is allowed without any order as to cost. The matter is remanded to the High Court Division for disposal of the writ petition in accordance with the law.
Ed.
Source: I ADC (2004),418