Appellate Division Cases
(Civil)
PARTIES
Syed Afzal Nowab ……………………………..Plaintiff-Appellant
-vs-
G.M. Yousuf and others……………….. Defendant and Respondents.
The Specific Reliefs Act (I of 1877), Section 42.
President’s Order No. 16 of 1972, Articles 15, 16. 13,14,24.
The Bangladesh Abandoned Property Article 4, 15.
Article 15 of the Bangladesh Abandoned Property (Control, Management and Disposal) Order ( President’s Order No. 16 of 1972) Rule 5 of Bangladesh Abandoned Property (Buildings in the Urban Area) Rules, 1972 (1)
The Ministry of Works allotted the said property to the school and by virtue of the said allotment the defendant had been paying rents to the Government; that the appellant had no locus standi to institute the suit as the suit property had vested in the Government as an abandoned property; that the suit is , there-fore, liable to be dismissed under the provisions of the President’s Order No. 16 of 1972, and that the appellant may fight out the case in proper forum against the Government and not be institution of the present suit the petitioner should take proper steps in a proper forum for the relief’s as sought for in the present suit for declaration of title and khas possession instead of proceeding with the present suit (Para 3)
Article 2(ii) of President’s Order No. 149 of 1972 on 31.8.80 and the property had vested as an abandoned property under President’s Order No. 16 of 1972 and that as per Article 14 of P.O. No. 16 of 1972 the property having vested in the Government by operation of law the same cannot be subjected to any legal proceeding and as such the suit for declaration of title and recovery of khas possession is not maintainable (6)
M.A. Wahob Miah, Advocate, instructed by Md. Aftab Hossain, Advocate-On-Record. ………………………………………….For the Appellant
Sirajuddin Ahmed, Advocate-On-Record (absent For Respondent Nos. 1-2
B. Hossain, Deputy Attorney General, instructed by Shamsul Hague Siddique,
Advocate-On-Record For……………………… Respondent No. 3
JUDGMENT
1. Latifur Rahman J: – This appeal by leave by the plaintiff -appellant is against the judgment and decree dated 5.3.89 passed by a Division Bench of the High Court Division in First Appeal No. 40 of 1985 reversing the judgment and decree dated 27.11.85 passed by the Subordinate Judge, 4th Court, Dhaka in Title Suit No. 316 of 1981.
2. The plaintiff-appellant instituted the suit for declaration of title and recovery of khas possession on the averments, inter alia, that he is a Bangladeshi by birth having been born in Chittagong on 2.2.1919 ; that he was educated in Calcutta and passed Matriculation Examination in 1938 from Islamia High School, Calcutta with Urdu as the Medium of instruction ; that he graduated from Islamia college, Calcutta in 1942; that in 1947 he came back to his place of birth in the then East Bengal, now Bangladesh and since then he has been living in Bangladesh, save and except for the period from November, 1971till August, 1976 when he remained absent temporarily stranded in Karachi where he had gone in course of his employment to the head office of Latif Bewani Jute Mills Ltd., where he had been serving since 1953 in order to export jute gods, but could not return back to Bangladesh till August, 1976 but the members of his family remained throughout in Bangladesh ; that he remained stranded in Karachi because of the alarming news he received about the absence of social security of the Urdu speaking nationals in Bangladesh ; that when the situation improved he reached Dhaka in August, 1976 and applied immediately for a formal nationality certificate to remove any doubt about his nationality : though his nationality as a Bangladeshi by birth was never taken away, nor the Government formed any opinion that his absence from the country was for the purpose of activities prejudicial to the state; that he Ministry of Home Affairs granted him a nationality certificate on 31.8.1980 under Article 4 of the Bangladesh Citizenship Order 1972(P.O. 149 of 1972); that the suit property (a residential house at Mirpur, Dhaka) belonged to the appellant, who took the land by an indenture of lease, dated 14.11.1968 from the Government, and constructed a pucca residential building on taking loan from the House Building Finance Corporation; that it was redeemed on 24.4.81 after his return from Karachi on payment of the balance debt to the H.B.F.C.; that the plaintiff with the members of his family had been living in the said suit property till the middle of 1971, but some miscreants threatened the appellant and the members of his family, who had to take refuse at 140, Bangshal Road, Dhaka and the suit property remained vacant till March, 1972 and thereafter defendant Nos. 1 and 2 forcibly and illegally entered into the suit property as trespassers, and in order to grab it, they started a school there known as ‘nahar Academy; that the plaintiff informed the relevant authority of such illegal possession praying for delivery of possession thereof by evicting the trespasser there from; that the matter was enquired into by the S.D.O. (South), Dhaka but of no effect, and the suit property remained in illegal occupation of the said defendants; thereafter the present suit was filed; that during the pendency of the suit, the plaintiff filed an application in July, 1983 by way of remainder before the Sub-Divisional Officer, Sadar, Dhaka, a Prescribed Authority under Article 15 of the Bangladesh Abandoned Property (Control, Management and Disposal) Order ( President’s Order No. 16 of 1972) read with Rule 5 of Bangladesh Abandoned Property (Buildings in the Urban Area) Rules, 1972 for determination that the said property is not an abandoned property; that the Prescribed Authority after proper investigation held, inter alia, that the property is not an abandoned property under the provision of P. 0.16 of 1972 ; that the aforesaid findings of the Prescribed Authority was brought on record by amendment of the plaint on 21.2.84.
3. The suit was contested by defendant Nos. 1 and 3 by filing two separate written statements. Defendant No.l contested the suit by filing a written statement on 23.7.81 and additional written statement on 17.11.83 and 29.3.84. He denied the averments made in the plaint contending, inter alia, that the suit property is in bonafide occupation of a registered school under the name ‘Nahar Academy’, of which he is the President, and the said school was established in the year 1973 and was subsequently registered with the Government; that defendant No. 1 is the President of the Executive Committee of the said school by a Memo, dated 6.6.79, the Ministry of Works allotted the said property to the school and by virtue of the said allotment the defendant had been paying rents to the Government; that the appellant had no locus standi to institute the suit as the suit property had vested in the Government as an abandoned property; that the suit is , therefore, liable to be dismissed under the provisions of the President’s Order No. 16 of 1972, and that the appellant may fight out the case in proper forum against the Government and not be institution of the present suit; that he further asserted in his additional written statement filed on 29.3.84 that in view of the findings of the Prescribed Authority, the petitioner should take proper steps in a proper forum for the relief’s as sought for in the present suit for declaration of title and khas possession instead of proceeding with the present suit.
4. Defendant No. 3, Bangladesh represented by the Secretary, Ministry of Public Works and Urban Development filed a written statement on 3.5.83 on the averments, inter alia, that the suit is barred under Section 42 of the Specific Reliefs Act and is also barred under Articles 13,14 and 24 of President’s Order No. 16 of 1972 as the suit property is an abandoned property; that it was declared abandoned with effect from the date of issuance of the Memo. Dated 6.6.1976; that the said property was allotted to the Nahar Academy on the representation made by the authority of the said school; that the school started there with effect from 1.1.74; that the appellant was issued the certificate of citizenship, which is effective from the date of issuance of the certificate on 31.8.1980.
5. The trial court on a discussion of the evidence on record held, inter alia, that the plaintiff was a national of Bangladesh and he was stranded in Pakistan and therefore his temporary absence from the country cannot take away his right to enjoy his properties; that defendant No. 3 has failed to show that it has correctly declared and treated the suit land as an abandoned property and that the plaintiff is a citizen of Bangladesh so his property cannot be declared as an abandoned property within the meaning of P. O. No. 16 of 1972. On such findings the trial court decreed the suit.
6. The learned Judges of the High Court Division found that the appellant was a permanent resident of the territories now com-prise of Bangladesh on the 25th of March 1971 and according to his own statement in the plaint he left for Karachi in November 1971 and returned to Bangladesh in August 1976. The learned Judges further found that citizenship certificate, Ext. 4 was granted to the appellant under Article 2(ii) of President’s Order No. 149 of 1972 on 31.8.80 and the property had vested as an abandoned property under President’s Order No. 16 of 1972 and that as per Article 14 of P.O. No. 16 of 1972 the property having vested in the Government by operation of law the same cannot be subjected to any legal proceeding and as such the suit for declaration of title and recovery of khas possession is not maintainable. The learned Judges further opined that “plaintiff is still at liberty to move the Government under Article 15 of P.O. No. 16 of 1972 as well as under Article 16 of the said Order, if he is so advised”.
7. Leave was granted to consider the submission of the learned Advocate for the appellant that the finding of the High Court Division that the suit is not maintainable is erroneous in asmuch as civil court has inspite of the provision of Articles 13,14 and 16 of P.O. 16 of 1972 has jurisdiction to examine whether the provisions of the law have been complied with or to see whether the property answers to the description of an abandoned property. Leave was also granted to consider whether the learned Judges of the High Court Division correctly construed the provision of the Bangladesh Citizenship (Temporary Provision) Order, 1972 (P.O. 149 of 1972) without consideration the proviso to Article 2(ii) of the P. O. 149 of 1972 wherein the plaintiff’s continued residence in Karachi from November, 1971 to August, 1976 does fall within the requirement of “continues to be so resident” in order to be a citizen of Bangladesh and wrongly held that plaintiff acquired citizenship under Article 4 of P.O. 149 of 1972 from 3 1.8.80.
8. In this case, we are primarily concerned with the question as to whether the property of the plaintiff is an abandoned property under P.O. 16 of 1972. Admittedly on the assertion of the plaintiff himself the plaintiff was a permanent resident of Bangladesh on the 25th day of March 1971 and thereafter he went to Pakistan in November 1971 and returned to Bangladesh in August 1976. Abandoned property has been defined in Article 2(1) of P.O. 16 of 1972 wherein it has been said that if a person ceased to occupy, or manage in person his property the same is an abandoned property. Admittedly the plaintiff was outside this country from November 1971 to August 1976. There is no averment at all that during this period the plaintiff in any manner supervised or managed the property and consequently by operation of law the same became an abandoned property. Article 14 of P.O. 16 of 1972 clearly speaks that any property vested in the Government under this Order shall be exempt from all legal processes and Article 24 speaks that anything done or any action taken or any order passed under this order shall not be called in question in any court. Hence, from the definition of abandoned property and on the basis of the averment of the plaintiff himself when he failed to manage and supervise the property in any manner the property vested in the Government as an abandoned property. Therefore, the learned Judges of the High Court Division were correct in holding that the suit as filed for declaration of title and recovery of khas possession is not maintainable. The learned Judges further found that defendant Nos. 1 and 2 are occupying the premises under allotment from the Government as lessees of the Government after treating the property to be an abandoned property.
9. The question of acquisition of citizenship by the plaintiff under P.O. 149 of 1972 is not very material for our purpose as the citizenship certificate, Ext. 4 was granted on 31.8.80. The plaintiff asserted in his plaint that he lived in Karachi from November 1971 to August 1976 and after return to Bangladesh to remove any doubt to his citizenship he filed an application under Article 2(ii) of P.O. 149 of 1972. Hence the government granted him citizenship under P.O. 149 of 1972. According to his won showing he was born in Bangladesh and was a permanent resident of the territories now comprising Bangladesh on the 25th day of March 1971 and he continues to be so resident that is why he was given the citizenship certificate, but due to his continued absence for six years the property vested in the government by operation of law as an abandoned property under P.O. 16 of 1972. As a matter of fact, the acquisition of citizenship of the plaintiff has no bearing on the vesting of the property as an abandoned property when admittedly he was away from the country and failed to manage and supervise his property in any manner whatsoever
.
10. It is on record that the plaintiff-appellant filed an application for release of the property under Article 15 of P.O. 16 of 1972 to the prescribed Authority after he returned from Pakistan. The S.D.O. Sadar, Dhaka who is the prescribed Authority recommended for release of the property and sent the file to the Ministry of Works for-necessary action. In that view of the matter, the learned Judges opined that the though the suit is not maintainable the plaintiff may move the Government under Articles 15 and 16 of President’s Order No. 16 of 1972, if he is so advised.
11. Mr. M.A. Wahab Miah, learned Advocate appearing for the plaintiff-appellant cited some decisions, which are not at all relevant for our considerations. He argued that admittedly the appellant being outside Bangladesh for six years it is necessary for the Government to form an opinion that his residence outside Bangladesh is prejudicial to the interest of Bangladesh before treating the property as an abandoned property. In the facts and circumstances of the case on the own showing of the plaintiff himself that he stayed in Pakistan for six years as he was getting alarming news about the security of Urdu-speaking people in Bangladesh, the question of forming any opinion by the Government is not at all relevant. For the foregoing reasons, the appeal is dismissed without any order as to costs.
Ed.
Source : III ADC (2006), 13