Case No: Civil Appeal No. 87 of 2002
Judge: Surendra Kumar Sinha,
Court: Appellate Division ,,
Advocate: Dr. Rabia Bhuiyan,Md. Abdul Zabbar,,
Citation: VII ADC (2010) 241
Case Year: 2010
Appellant: A.B.M. Asgar
Respondent: Administrator and the Chairman of the Allotment Committee, Dhaka and others
Subject: Property Law,
Delivery Date: 2010-1-12
Md. Tafazzul Islam CJ
Md. Abdul Matin J
ABM Khairul Haque J
Surendra Kumar Sinha J
The Administrator and the Chairman of the Allotment Committee, Dhaka and others
January 12, 2010.
The Dhaka City Corporation Ordinance, 1983
Section 154 of the Dhaka City Corporation Ordinance, 1983 provides that any person aggrieved by an order passed by the corroboration or any officer in pursuance of the said ordinance or rules or by laws may prefer an appeal to the prescribed authority within the period of limitation any order passed in the appeal shall be final. If the appellant has got any grievance against the allotment, he could have preferred an appeal but without seeking redress to the proper authority in accordance with law moved the writ petition challenging the allotment. Without resorting to the alternative remedy available, the writ petition is not legally maintainable.
Md. Abdul Zabbar, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellant.
Mrs. Rabia Bhyiyan, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 1.
Not Represented- For Respondents Nos. 2 & 3.
Civil Appeal No. 87 of 2002.
(From the judgment and order dated 27.7.1999 passed by the High Court Division in Writ Petition No.471 of 1989.)
S. K. Sinha J.
This appeal, by leave, is from the judgment and order dated 27th July, 1999 of a Division Bench of the High Court Division in Writ Petition Nos. 471 of 1989 discharging the Rule Nisi.
2. The appellant instituted Writ Petition No.471 of 1989 challenging the allotment of 47 shop rooms in the ground floor and 6 rooms in the 1st floor of Ahasanullah (Nawabbari) Super Market, Ahasan Manzil, Dhaka by the respondents. According to the appellant there were 300 shop rooms in C.S. Plot Nos.725-726 at the premises of Ahasan Manzil, Ahasanullah Road, Dhaka. The appellant and others shop owners had been carrying on their business in those shop rooms for a long time and earned their livelihood. The appellant took lease of a shop room from the Dhaka Nowab Court of Wards Estate in 1980. In 1985 the Government decided to acquire the historic Ahasan Manzil along with the lands of C. S. Plot No.725-726 with a view to preserve and protect the said Ahasan Manzil as monument making necessary renovation thereof and to establish a museum thereon. After such acquisition the appellant along with 300 victim shop keepers became seriously affected. The affected shop keepers made a representation to various authorities including the President of the Republic and the then Chief Martial Law Administrator for saving them from total ruination with a suggestion that a Super Market should be constructed adjacent to the Ahasan Manzil monument where the shops were located on C. S. Plot No. 725-726. The Government having found the proposal meaningful accepted the same and decided to construct a Super Market on the said plots adjacent to the Ahasan Manzil monument.
3. In the premises, the government by letter dated 18th January, 1986, directed the Deputy Commissioner, Dhaka to take over and deliver the possession of the lands to the Dhaka City Corporation for construction of a Super Market thereon. In order to ensure that the shops in the said Super Market are made available to the affected shop keepers at the first instance by way of allotment on priority basis, the Government by letter dated 28th January, 1986, constituted a field survey committee. The said committee conducted a survey and prepared a list of affected shop keepers by physical verification and submitted its report to the Government on 15th February, 1986, and issued certificates to each of the affected shop keepers. Thereupon the Dhaka City Corporation took up construction work of the Super Market and with a view to meet the construction costs asked the affected shop keepers to pay salami of Tk. 25,000/- each in advance. The appellant and other shop keepers paid the salami against receipts. Thereafter the City Corporation fixed the salami for a shop room at Tk. 1,50,000/- and asked the shop keepers to pay the balance amount by 5 equal installments of Tk. 25,000/- each. The appellant and other affected shop keepers duly paid the salami.
4. After completion of the construction works, the City Corporation did not allot the shop rooms as per list prepared by the field survey committee on priority basis and allotted 18 shop rooms out of 140 shop rooms in the ground floor and 6 of rooms in the 1st floor to outsiders who are not affected shop keepers by illegal and corrupt consideration. As a result, the appellant and other affected shop keepers have been deprived of their legitimate right and entitlement of a shop room in the ground floor.
5. Respondents contested the rule nisi by filing affidavit-in-opposition denying the material allegations made in the writ petition. They claimed that there was no commitment by the City Corporation to allot shop rooms in the ground floor to the affected shop keepers. After the completion of the construction works, they have allotted shop rooms of the Super Market on the basis of open lottery and some of them have gotten shop rooms in the 1st floor, some of them in the 2nd floor and some in the 3rd floor. They took over possession from the City Corporation of their respective shop rooms and thereafter, they could not complain against the allotment after accepting the process of allotment.
6. Their further case is that the affected shop keepers did not file appeal under section 155 of the Dhaka Municipal Corporation Ordinance, 1983, if they were at all aggrieved against the said allotment and therefore, the writ petition is not maintainable. Their further case is that all the allotees of the shop rooms in the ground floor having not been impleaded in the writ petitions, the appellant and other writ petitioners are not entitled to the relief, inasmuch as, if the said allotments were interfered with the said allotees would be adversely affected.
7. The High Court Division upon hearing the parties by the impugned judgment discharged the rule nisi observing that 317 shop keepers were affected by the acquisition of the lands and out of them 5 were land owners, 81 were tenants under the Dhaka Nowab Court of Wards Estate and remaining 231 were sub-tenants under the tenants of the said Estate. The learned Judges further observed that there are 143 shop rooms in the basement, 140 in the ground floor, 141 in the 1st floor and 151 in the 2nd floor, that the appellant or other affected shop keepers failed to prove that the City Corporation gave them any assurance to allot shop rooms in the ground floor of the Super Market and that the affected shop keepers including the appellant were given allotment of shop rooms either in the 1st floor or in the 2nd floor and they got possession of their respective shop rooms in February, 1988.
8. Leave was granted to consider whether the learned Judges of the High Court Division committed error of law in not considering that the appellant and other affected shop keepers having been listed as the affected shop keepers as per report prepared and the certificates issued by the field survey committee and having paid salami to the City Corporation, they had acquired a vested right to have allotments of shop rooms at the first instance on priority basis in the ground floor to the exclusion of the outsider.
9. Mr. Md. Abdul Zabbar, the learned Counsel appearing for the appellant failed to show any material on record that the Dhaka City Corporation assured the affected shop keepers to allot shop rooms in the ground floor of the Super Market. The learned Counsel, however, contends that the City Corporation having allotted 48 shop rooms to outsiders including Barrister Rabeya Bhuiyan and the relations of the Administrator of the Dhaka City Corporation, who are not affected shop keepers, it is apparent that the allotments have not been made fairly, and in an arbitrary manner and thus, those arbitrary allotments should have been declared to have been made or given to them without lawful authority. The learned counsel further contended that the appellant being an affected shop keeper and in view of the certificate issued of the field survey committee, he had acquired a vested right to get the allotment on priority basis in the ground floor but the learned Judges of the High Court Division failed to consider the said aspect of the matter and illegally discharged the rule nisi.
10. Annexure-D to the writ petition is a deed of undertaking given by Md. Abul Hossain, General Secretary, and Nawab Bari Bastra Samity being counter signed by the President of the said Samity on 13th January, 1988 on behalf of the affected shop keepers. In pursuance of the said undertaking, the shops were allotted in presence of the Administrator Dhaka City Corporation on the basis of lottery on 10th January, 1988. The said lottery was held as per decision of the shop allotment committee providing that nobody would be entitled to raise any objection or institute any case against such allotments. Accordingly, the shops were allotted to the affected persons including the appellant by lottery. Annexure-B (3) showed that the appellant took possession of his shop room in the 2nd floor on 12th May, 1988 and after taking over possession, he instituted a writ petition in April 1989. There is also nothing on record to show that the City Corporation assured the appellant and other affected shop keepers to allot shop room in the ground floor of the Super Market.
11. Though out of total 567 shop rooms in the Super Market, there are only 317 shop keepers who are affected by the acquisition of the lands. It is on record that total number of shops in the ground floor is only 140, whereas, actual total number of affected persons were 307 and out of those rooms, in the ground floor only 36 rooms were allotted to outsiders in order to meet the construction costs by increasing the amount of salami. Admittedly the allotments of the shop rooms have been made by lottery. On the basis of lottery, the appellant was also given allotment of a shop room and he got delivery of possession. He did not raise any objection at the time of issuance of the allotment letter and delivery of possession. In that view of the matter, I find no substance in the first contention of the learned Counsel for the appellants.
12. The field survey committee issued certificate to the appellant and other affected persons for ascertaining the persons who were real affected persons by the acquisition of the lands with a view to allot shop rooms to them. This survey report does not accrue any vested right upon the affected shop keepers to have an allotment in the ground floor of the Super Market. Over and above, the appellant has not impleaded all the allottees who have gotten shop rooms in the ground floor. These allottees have paid the premium and gotten possession of their respective rooms. The writ petition without impleading them as respondents is not legally maintainable, inasmuch as, the court can not give any declaration as prayed for in favour of the appellant without affording them an opportunity on being heard. Further, the appellant has not preferred any appeal as provided under section 155 of the Dhaka Municipal Corporation Ordinance, 1983. Section 154 of the Dhaka City Corporation Ordinance, 1983 provides that any person aggrieved by an order passed by the corroboration or any officer in pursuance of the said ordinance or rules or by laws may prefer an appeal to the prescribed authority within the period of limitation and any order passed in the appeal shall be final. If the appellant has got any grievance against the allotment, he could have preferred an appeal but without seeking redress to the proper authority in accordance with law moved the writ petition challenging the allotment. Without resorting to the alternative remedy available, the writ petition is not legally maintainable.
13. In view of the above, I find that the learned Judges of the High Court Division have committed no error of law in discharging the rule nisi. I find that the writ petition is not legally maintainable. There is no merit in the contentions of the learned counsel. The appeal is therefore, dismissed without any order as to costs.