RE: NOTICE DEMANDING JUSTICE.
We act for our client Bank 1 (hereinafter referred to as the “Bank 1”). Our client has instructed us to serve this notice upon you as follows:
01. That upon the applications of the Bank 1 vide its Memo No. HO:BD:STAFF QUARTER:1483:77 dated 18.04.77 and Memo No. HO:BD:STAFF QUARTER:2255:77 dated 02.08.77 the erstwhile Dhaka Improvement Trust (“DIT”) now Rajdhani Unnayan Kartripakkha (“RAJUK”) provisionally allotted the land measuring more or less 10 (ten) Bighas at Uttara Model Town vide its Memo No. DIT/EO/9422-P dated 18.11.77 for construction of Bank 1’s staff quarter. But before final survey of the land, because of the financial difficulties of Bank 1, it was denationalised by the Government and was handed over to the new management with effect from 08.11.83.
02. That final survey of the Land was done on 14.10.85 whereupon Final Survey Report of the land was issued by the erstwhile DIT now RAJUK. Upon the final survey the area of the land in question was determined at 93,998 square feet equivalent to 6 Bighas, 10 Kathas 8 Chattak 38 square feet, fully described in the schedule below (hereinafter referred to as the “Land”) and the possession of the Land was handed over to Bank 1.
03. That upon payment of full consideration money the Land was formally leased out by the erstwhile DIT now RAJUK in favour of Bank 1 vide Indenture of Lease executed by the erstwhile DIT in favour of Bank 1 on 21.01.87. The Indenture of Lease was registered on 25.02.87.
04. That by execution of the Indenture of Lease the erstwhile DIT now RAJUK leased out the Land in favour of Bank 1 for a period of 99 years with effect from 26.06.79.
05. That Clauses 4 and 5 of the Indenture of Lease provide as follows:
“4. That within four years from the date of registration of this Deed or within such further time as the LESSOR may allow in its discretion, the LESSEE shall complete the construction on the demised property of a building with all necessary drains and appurtenances for the purpose of residence including a specific tank, approved by the Authorised Officer of THE DHAKA IMPROVEMENT TRUST.
5. That if the LESSEE fails to complete the building or such house and appurtenances within the period referred to in Clause 4, the lease shall be liable to be determined by the LESSOR and on such termination the LESSEE shall surrender the demised property to the LESSOR forthwith and the LESSOR shall refund to the LESSEE the actual amount paid on account of premium excluding interest, if any, paid and the right, title and possession of the demised property shall be deemed to have automatically vested with the LESSOR who shall have right to enter upon the demised property removing any obstruction that may be found and may use or deal with the demised property as may appear to the LESSOR to be expedient but the LESSEE shall nevertheless be liable to pay rent at the stipulated rate for the period upto the date of determination of this lease, part of the year being counted as a full year for the purpose of the payment of such rent and service charges.
06. That after handing over the possession of the Land, Bank 1 had fenced the Land with boundary wall and barbed-wire at a substantial cost. Bank 1 also prepared the plan for its Staff Quarter. But because of the financial difficulties, Bank 1 could not take any positive effort towards construction of the staff-quarter.
07. That in such situation RAJUK issued Memo dated 11.02.92 to Bank 1 requesting it to show cause within seven days as to why the lease of the Land would not be cancelled for non-compliance of the condition of the Indenture of Lease for constructing building on the Land.
08. That upon receipt of the said Memo dated 11.02.92 Bank 1 vide its letter dated 15.02.92 informed RAJUK that necessary steps had already been taken for preparing/revising the layout plan and requested RAJUK to allow at least one more year to construct the building. Upon receipt of the reply, RAJUK accepted the prayer and did not raise any further objection in the matter.
09. That in the meantime Bank 1 was listed by Bangladesh Bank as Problem Bank and was placed under close surveillance of Bangladesh Bank. Bangladesh Bank vide its Memo No. BRPD(PBU)AA1305/94-01 dated 17.05.94 set out certain directives for control and management of the business and expenditures of Bank 1. The said directives were legally binding upon Bank 1. The said directives legally incapacitated Bank 1 to construct the building in compliance of the condition of the Indenture of Lease. In other words, the situation was beyond the control of Bank 1 to construct the building on the Land.
10. That because of the financial crisis of Bank 1, interested third parties with their influence and connections conspired to grab the Land from Bank 1. Consequently, Bank 1 received on 17.02.2000 Memo dated 10.02.2000 issued by RAJUK requesting Bank 1 to show cause within 15 days of receipt of the Memo as to why the allotment of land would not be cancelled for non initiation of construction work on the land within the stipulated period.
11. That in reply to the said Memo dated 10.02.2000 Bank 1 vide its letter dated 27.02.2000 explained the facts and circumstances of non-initiation of the construction work, which was actually beyond the control of Bank 1. It was informed to RAJUK that tenders were invited by Bank 1 on several occasions from reputed developers for construction of the building, but no acceptable proposal was received. Bank 1 prayed for more time to construct the building. Upon receipt of the reply, RAJUK accepted the prayer and did not raise any further objection in the matter. It may be mentioned here that Bank 1 decided to construct the building through commercial developer without investing Bank 1’s own money. Because, any investment by Bank 1 in constructing the building would not be permitted by Bangladesh Bank because of the unsatisfactory balance sheet of Bank 1. Accordingly, tenders were invited from commercial developers.
12. That since no acceptable tenders were received by Bank 1 and since in the meantime Bank 1’s financial difficulties were almost over and Bank 1 was waiting for coming out of the list of Problem Banks, Bank 1 changed its earlier decision and decided to erect the building on the Land by itself. Accordingly, Layout Plan was prepared and finalised. But before submitting the plan with RAJUK for approval, interested third parties, who were aware that Bank 1 is coming out of the list of Problem Banks and the Layout Plan is ready, managed to issue Memo No. RAJUK/ESTATE/795Stha dated 15.11.2003 by RAJUK cancelling the allotment of the Land.
13. That the cancellation of the allotment of the Land by RAJUK is illegal, arbitrary, without lawful authority and of no legal effect for the following reasons:
a) Clause 4 of the Indenture of Lease requires Bank 1 to construct the building within four years from the date of registration of the Indenture of Lease or within such further time as RAJUK may allow in its discretion. Such discretion cannot be exercised arbitrarily. Upon considering the circumstances, RAJUK has already allowed further times on several occasions. By letter dated 27.02.2000 Bank 1 prayed for further time without mentioning any limit. The said prayer having not been refused by RAJUK, it is implied that further time was allowed by RAJUK. Consequently, RAJUK cannot legally cancel the allotment of the Land without setting any time limit to construct the building.
b) Bank 1 having listed by Bangladesh Bank as Problem Bank and Bangladesh Bank having issued Memo No. BRPD(PBU)AA1305/94-01 dated 17.05.94 setting out certain directives for control and management of the business and expenditures of Bank 1 and the said directives being legally binding upon Bank 1, Bank 1 was in legal incapacity to construct the building.
c) The lease being a lease of non-agricultural land for a period of 99 years, pursuant to the provision of section 8 of the Non Agricultural Tenancy Act, 1949 RAJUK cannot cancel the allotment of the Land during the said period of 99 years on the ground of failure of Bank 1 to construct the building.
d) Upon registration of the Indenture of Lease the allotment of the Land made by RAJUK in favour of Bank 1 prior to the execution of the said Indenture of Lease have been merged into the lease granted through the Indenture of Lease. As such now there is no scope to cancel the allotment of the Land.
e) The lease has been granted through registered Indenture of Lease. As such any cancellation by an unregistered document is of no legal effect.
14. That upon receipt of the Memo No. RAJUK/ESTATE/795Stha dated 15.11.2003 issued by RAJUK cancelling the allotment of the Land, Bank 1 filed an application to you vide its letter dated 11.12.2003 explaining the situation in which it could not construct the building and requested you to keep the allotment of the Land intact thereby to rescind/withdraw the said Memo No. RAJUK/ESTATE/795Stha dated 15.11.2003.
In the premises stated above you are requested to rescind/cancel Memo No. RAJUK/ESTATE/795Stha dated 15.11.2003 issued by RAJUK cancelling the allotment of the Land and communicate compliance thereof to us or to our client within 3 (three) days of receipt of this notice. Should you fail to comply with the request, our client – Bank 1 will be compelled to seek necessary relief against you from the High Court Division of the Supreme Court of Bangladesh in its Writ Jurisdiction.
SCHEDULE OF THE LAND
All that piece and parcel of land containing by admeasurement 6 Bigha 10 Katha 8 Chattak 38 Sft., more or less situated in Uttara Residential Model Town of the Dhaka Improvement Trust (now RAJUK) in the Sub-Registration District Dhaka, Mouza Faridabad, P.S. Dhaka Cantonment, now Uttara being Plot No. 4-A and 4-D of Sector No. 8 of Uttara Residential Model Town.
A copy of this notice is kept in our office for future reference.
For: “The Lawyers & Jurists”