Appellate Division Cases
(Civil)
PARTIES
Wega Fashion Sweater (PVT.) Ltd. represent-ed by its M.D. Nurul Huda …………….Appellant
Syed Sajeda Hossain & others ……………………. Respondents.
&
Director Adjutant of Ansar & V.D.P. having its office at Tikatuly & others
…………………….. Respondents.
Government of Bangladesh, represented by the Secretary, Ministry of land and others
……………………. Appellants.
Vs
Syeda Sajeda Hossain & others……………………….. Respondents.
JUDGES
Md. Ruhul Amin. J.
M.M. Ruhul Amin. J.
Md. Tafazzullslam, J
Date of Judgment
1st August, 2006
Section 3 of the East Bengal (Emergency) Requisition and Property Act. 1949
Notice of acquisition was published in the official Gazette on 28.03.1968 and as such the land absolutely vested in the Government free from all encumbrances and the right, title and interest of the original owners extinguished (3)
Copy of gazette notification dated March 28, 1968 published in the Dacca Gazette part-1. It shows that by notification under Memo N0 Dacca-No. Da-36/68/359-Reqn-Civil Appeal No. 62-64 of 2004 (From the judgment and order dated 20.04.2003 passed by the High Court Division in Writ Petition Nos.6140 & 5350 of 2000).
15th March 1968 full of cadastral survey Plot No. 177 along with other plots were acquired by the Government. The position of law is that once the property is acquired under sub-section (7) of section 5 of the (East Bengal) Emergency Requisition of property Act, 1948 (East Bengal Act XIII of 1948), the same vests absolutely in the Government free from all incumbents and the right title and interest, if any, of the previous owners are extinguished. Under the law (East Bengal Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) the government has no authority of release the property in favour of either the original owner or anybody else. The Government may also use such land for similar other public purpose (9)
The property once acquired by the Government, absolutely vested in the Government under the East Bengal (Emergency) Requisition of Property Act, 1948 (East Bengal Act XIII of 1948) and as such enlistment of acquired property as enemy property now vested property) did not arise at all. The question of subsequent leasing out the same to different lessees and putting the writ petitioners in possession of the same after evicting the lessees are out of question (11)
ADVOCATES
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Syed Mahbubur Rahman, Ad\ocate-on-Record For the Appellant (in C.A. Nos.62 of 2004) Fida M. Kamal, Additional Attorney General (A.H.M. Mushfiqur Rahman, DAG with him) nstructed by Ahsanullah Patwary, Advocateon-Record For the Appellant (in C.A. Nos.64 of 2004) Nurul Islam Bhuiyan, Advocate-on-Record For Respondent Nos-12 (in C.A. Nos.62 of 2004) A.F. Hasan Arijf Senior Advocate, instructed bv Nurul Islam Bhuivan, Advocate-on-Record For the Respondent No.Respondent Nos-3-10 Not Represented.
JUDGMENT
1. . Ruhul Amin, J : These three appeals by leave are directed against the common Judgment and order dated 20.04.2003 passed by a Division Bench of the High Court Division in Writ Petition Nos.6140 of 2000 making the rule absolute in part and discharging the Rule in Writ Petition No.5350 of 2000.
2. In Writ Petition No.6140 of 2000 the case of the writ petitioners, in short, is that they being the joint owners of 17 decimals of land out of 1.25 acres of land appertaining to C.S. Plot No.177 of C.S. Khatian No.49″S.A.Plot No.286/310 under S.A. Khatian No.165
(Sabek) and 137 (hal) of Mouza Begunbari, PS. Tejgaon, Dhaka are in possession thereof
physically on payment of rent and taxes but they were dispossessed therefrom illegally by
‘Mastans’ on 16.10.2000 without giving them prior notice or chance of being heard, the further case is that the land of the writ petitioners was allotted to the appellant in C.A.No.62 of 2004 (Wega Fashion Sweater Pvt. Ltd.) by altering Government’s earlier decision. The further case is that one Mrs. Madlena D. Rozario purchased the land from the C.S. recorded owners and possessed the property. The Government requisitioned the property by order dated 03.03.1952 in Requisition Case No. 16 of 1959-60 for the purpose of earth cutting for Railway. The land was subsequently de-requisitioned and restored to the owner, Mrs. Madlena D. Rozario. Although the land was released and restored to her but at the behest of some interested persons, the said land was included in the list of Enemy properties (now vested property) in V.P. Case No.566 of 1968. The Ministry of land by Memo dated 30.10.1989 informed the Additional Deputy Commissioner (Revenue) Dhaka that the land has been released from the vested property list and accordingly the Additional Deputy Commissioner (Revenue),Dhaka issued memo dated 17.12.1989 informing,Mrs. Rozario that the land in question had been excluded from the list of the vested properties and the Government subsequently evicted its lessees
from the said land with the help of police under the supervision of a Magistrate, 1st Class on 23.04.1999 and handed over vacant possession of the land to Abdus Sobhan. representative of Mrs. Rozario. The respondent No.8 of the Writ Petition No.6140 of 2000 applied to the Ministry of land through Board of Investment for allotment of an industrial plot and respondent No.2 of the said writ petition and the appellant in C.A.No.62 of 2004 v was allotted 5 kathas of land by letter dated 26.02.1995 being the Southern part of Industrial Plot No. 170, Tejgaon Industrial Area. Dhaka. The said appellant (Respondent No.8 of the Writ Petition No.6140 of 2000) then applied to the respondent No.3 of the said writ petition to change the plot on false plea and motivated the government officials to get allotment of land from the writ petitioner’s aforesaid personal property and accordingly in the meeting held on 13.12.1995 and 14.12.1995 respondent No.3 of the above mentioned writ petition decided to change the Plot and allotted 8 kathas of land out of writ . petitioners’ (of Writ petition No.6140 of 2000) land in favour of the appellant of C.A.No.62 of 2004 and respondent No. 12 of the above mentioned writ petition issued memo dated 20.01.1996 allotting the aforesaid 8 kathas out of writ petitioners’ land appertaining to C.S. Plot No.177 of Mouza Begunbari, PS. Tejgaon, Dhaka in fovour of the appellant. The further case is that in the meeting of the respondent No.3 of the Writ Petition No.6140 of 2000 held on 12.06.1996 the decision was taken to give delivery of possession of the land to the appellant by evicting the trespassers. Accordingly, the respondent No.5 of the writ petition issued letter of handing over and taking over possession dated 12.10.2000 and the Sub-Assistant Engineer of the P.W.D. made purported delivery of possession to the appellant on the same day which was practically impossible and the same was mere a paper transaction. In fact the appellant entered into the land in question on 16.10.2000 and dispossessed the writ petitioners. The allotment of the land to the appellants having been made without Jurisdiction and the writ petitioners having been illegally evicted in pursuance of the aforesaid unlawful allotment, the writ petitioners were constrained to move the High Court Division in the writ jurisdiction.
3.te respondent No.l, Government of Bangladesh represented by the Secretary, Ministry of Land and respondent No.5 SubDivisional Engineer. Public Works Department, Dhaka by filing joint affidavitin-opposition contested the Rule denying the material allegations made in the writ petition and further contended that complicated questions of title and possession and dispossession being involved the writ petition is not maintainable. The C.S. plot No.177 of Mouza-Begunbari, P.S. Tejgaon, Dhaka is acquired land of the Government No.5 and the allegation of dispossession of the writ petitioners on 16.10.2000 is false. The vacant possession of the land in question had been delivered to the respondent No.8 of the writ petition (appellant in C. A.No.62 of 2004) by the respondent No.5 of the writ petition on 12.10.2000. The papers and documents filed by the writ petitioners were manufactured with malafide intention to grab the Government property.
5. The High Court Division upon hearing the parties and consideration of the materials on
record made the Rule absolute in part as noticed earlier.
6. The Writ Petition No.5350 of 2000 was filed calling in question the action of respondent No.2 of the writ petition asking the writ respondent No.] to stay the deployment of Ansars on the land of the writ petitioner in Tejgaon Industrial Area by the impugned letter “dated 20.11.2000 (Annexure-Hf stating, inter alia, that the writ petitioner company applied to the Ministry of Public Works for lease of land in the Tejgaon Industrial Area and accordingly the company was given allotment of the said area of land on 25.02.1995 and this allotment was subsequently amended by memo dated 20.11.1996 issued by the ministry of Public Works alloting 8 kathas of land from C.S. Plot No. 177 of Mouza-Bagunbari, P.S. Tejgaon. Dhaka and the writ petitioner paid total premium of Tk.8,00.000/- and thereafter possession was delivered to Them on 12.10.2000 as per site plan prepared for the purpose of handing and taking over of possession of land. The petitioner company has been peacefully possessing the said land constructing semi-pucca structure and two tin sheds for the security and protection of the machinery to be installed and valuable materials to be used therein. The petitioner company applied to the District Adjutant of Ansars and V.D.P. (respondent No. 10 to the writ petition) for deployment of Ansars and on the recommendation of officer-in-charge of local police station, 12 armed Ansar personnel were deployed and the company paid the respondent No.l cost of deployment of Ansars for 3 months. The officer-in-charge of Tejgaon Police Station who gave detailed report in prescribed form recommending deployment of Ansar had no reason or cause to make a somersault to write to the respondent No.l to stay deployment of Ansars. It was further stated that Sayeda Shahjeda Hossain and Gereen Ghose got themselves added as respondent Nos.6 and 7 in the said Writ Petition No.5350 of 2000 but respondent No.6 alone filed affidavit-in-opposition in line with the statements made by them as writ Petitioners in Writ petition No.6140 of 2000 and opposed the deployment of Ansars. No affidavit-in-opposition was filed on behalf of the respondent I Nos.1-5 of the said Writ Petition No.5350 of 2000 filed by the petitioner company. Both the writ petitions were heard together and the High Court Division by the same impugned judgment discharged the Rule issued in Writ Petition No.5350 of 2000 in view of the pronouncement of judgment in Writ Petition No.6140 of 2000!
7. Leave was granted to consider the submission that admittedly the writ petitioners claimed unspecified, undemocratic 17 decimals of land out of 1.25 acres of C.S. Plot No. 177 of Mouza Begunbari and the entire land of the said plot having been acquired in L.A. Case No. 16 of 1959-60 and included in maintainable and the submission that in view of the admission of writ petitioners’ in paragraph 19 of the writ petition that they had been dispossessed by Mastans on 16.10.2000 not by any Government agency) the writ is not maintainable for recovery of possession of land and the further contention that the Government represented by the Ministry of land having contested the claim of the writ petitioner and having averred that the acquired land of C.S. Plot No. 177 was being managed and supervised by the Ministry of Public works, the High Court Division seriously erred in finding violation of Rules of Business resulting in an error in the decision of the writ petition and the submission that the appellant in C.A. No.62 of 2004 in the affidayit-in-opposition as respondent No.8 of the Writ Petition No.6140 of 2000 categorically challenged the papers and documents relied upon by the High Court Division has erred in accepting those documents and deciding the disputed questions of fact in the writ jurisdiction and the submission that the writ petitioners to be collusive and false and as such the High Court Division erred in law in disposing of the Rule of Writ Petition No.5350 of 2000 mechanically and illegally discharging the Rule without considering the merit of the case as set out’in the aforesaid writ petition and the submission that the deployment of Ansars by respondent No.l is a matter governed by Rules in between the appellant of C.A. No.62 of 2004 and the said respondent which has no nexus with the disposal of Writ Petition No.6140 of 2000 and as such the High Court Division erred in discharging the Rule in Writ Petition No.5350 of 2000 in view of the pronouncement of judgment in Writ Petition No.6140 of 2000;
8. We have heard Mr. Khandker Mahbubuddin Ahmed, the learned Counsel for the appellant in C.A. Nos.62-63 of 2004 and Mr. Fida M. Kama!, the learned Additional Attorney General for the appellant in C.A. No.64 of 2004 and Mr. A.F. Hasan Ariff. the learned Counsel for Respondent No.l in C.A. No. 64 of 2004 and Mr.Nurul Islam Bhuiyan. the learned Advocate-on-Record for respondent Nos. 1-2 in C.A. No.62 of 2004 and respondent Nos.6-7 in C.A. No.63 of 2004 and perused the judgment of the High Court Division and other connected papers.
9. At the time of hearing of the appeal the learned Counsel for the appellants in C.A. Nos.62-64 of 2004 filed copy of gazette notification dated March 28, 1968 published in the Dacca Gazette part-1. It shows that by notification under Memo No. Dacca-No. Da36/
68/359-Reqn-15th March 1968-full of cadastral survey Plot No. 177 along with other plots were acquired by the Government. The position of law is that once the property is acquired under sub-section (7) of section 5 of the (East Bengal) F.mergency Requisition of property Act. 1948 (East Bengal Act XIII of 1948). the same vests absolutely in the Government free from all incumbents and the right title and interest, if any, of the previous owners are extinguished. Under the law (East Bengal Emergency) Requisition of Property Act.”l948 (East Bengal Act XIII of 1948) the government has no authority of release the property in favour of either the original owner or anybody else. The Government may also use such land for similar other public purpose.
10. It appears that this gazette notification was not Placed before the High Court Division at the time of hearing of the writ petition but it was the specific case of the appellants before the High Court Division that the disputed property was acquired in L.A. Case No. 16 of 1959-60 and gazette notification was accordingly published and as such the property absolutely vested in the Government. In spite of this patent fact on record regarding acquisition of the property by the Government, the High Court Division it appears lost sight of this important aspect of the matter.
11. Moreover, the property once acquired by the Government, absolutely vested in the Government under the East Bengal (Emergency) Requisition of Property Act. 1948 (East Bengal Act XIII of 1948)’and as such enlistment of acquired property as enemy property now vested property) did not out the same to different lessee and putting the writ petitioners in possession of the same after evicting the lessees are out of question.
12. Therefore since the writ petitioner’s vendor had no right, title and interest and possession it the disputed land after final acquisition of the property in L.A. Case No. 16 of 1959-60 as stated above, they had no saleable interest and the writ petitioner by purchase from them did not acquire any interest in the land.
13. Moreover, the writ petitioner did not challenge the acquisition of the property in L.A. Case No. 16 of 1959-60. 14. It is needless to mention here that a writ petition is maintainable where the facts are undisputed. In the instant case the facts of the writ petition do not appear to be undisputed, from this point of view also the writ petition is not maintainable.
15. In view of the discussion above and in the Appellate Division Cases facts and circumstances of the case, we are of (Civil) the view that the High Court Division committed error of law in making the Rule PRESENT absolute in part in Writ Petition No.6140 of Md. Fazlul Karim J. Nur Hussain and another 2000 and discharging the Rule in Writ Petition Petitioners No.5350 of 2000. M.A. Aziz C.P.No.20of 2004 Arifur Rahman.
16. All the three appeals, viz C.A. Nos.62-64 another Petitioners of 2004 are allowed without any order as to mC.PNo.l63of 2004 costs.
Source: III ADC (2006) 763