Case No: Writ Petition No. 2762 of 2001
Judge: Mahmudul Hoque,
Court: High Court Division,,
Advocate: Mr. M. I. Farooqui,Mr. Shaheed Alam,Ms. Nazneen Nahar,Mr. Sukumar Biswas,Ms. Nasrin Parvin Shefali,,
Citation: 4 LNJ (2015) 94
Case Year: 2015
Appellant: Begum Nahed Afroz
Respondent: Chairman, First Court of Settlement Segunbagicha, Ramna, Dhaka and another
Subject: Burden of Proof, Writ Jurisdiction,
Delivery Date: 2013-06-13
(SPECIAL ORIGINAL JURISDICTION)
|Syed Refaat Ahmed, J,
Mahmudul Hoque, J.
|Begum Nahed Afroz, wife of Abdul Malek, of 14/4, Block-C, Tajmahal Road, P. S. Mohammadpur, District-Dhaka.
. . . Petitioner
Chairman, First Court of Settlement Segunbagicha, Ramna, Dhaka and another
. . .Respondents
Constitution of Bangladesh, 1972
The High Court Division does not sit on appeal over the judgment and order of the Court of Settlement, while considering a Writ of Certiorari it needs to be conscious to ascertain to which such judgment and order may have been perverse.
This Court in the exercise of its Writ Jurisdiction is not necessarily to sit on appeal over the judgment and order of the Court of Settlement. Instead, this Court in considering a Writ of Certiorari as this needs to be conscious of the necessity to fundamentally ascertain the extent to which the judgment of the Court of the Settlement may have been perverse. . . . (11)
Bangladesh Abandoned Property (Control, Management and Disposal) Order (PO 16 of 1972
Evidence Act (I of 1872)
The burden of proof may be found to be dis-charged if it is established that the petitioner or her predecessor-in-interest occupied, supervised or managed the case property before and after 28.2.1972, that is the date on which the P.O. 16 of 1972 came into force.
Due significance has necessarily to be attached to the fact that the burden of proof so to be discharged by a claimant affected party has one primary purpose which has to do with establishing the basic fact that at the time of the promulgation of President’s Order No.16 of 1972 as applicable to the present facts and circumstances, the petitioner, Begum Nahid Afroz or her predecessors-in-interest, as identified through an unbroken chain of title, were indeed in possession of the case property. In other words, the burden of proof may be found to be discharged duly should it be established that the said petitioner or her predecessors-in-interest occupied, supervised or managed the case property before and after 28.2.1972, that is the date on which the P.O. 16 of 1972 came into force. . . . (13)
Constitution of Bangladesh, 1972
Evidence Act (I of 1872)
The burden of proof lies on the person who claims and or pleads fraud. The Government could not prove such allegations by any means or even, in the very minimum, produce the record lying with them though it was called for by the Court of Settlement. . . . (16)
Government Vs. Md. Jalil and others, 48 DLR (AD) 10; Government Vs. Ashrf Ali, 49 DLR (AD) 161; Asma Begum Vs. Bangladesh and others, 21 BLD (AD) 134; and Secretary, Ministry of Works Vs. Roushan Ara Begum, 57 DLR (AD) 167 ref.
Mr. Shaheed Alam
Ms. Nazneen Nahar, Advocates
Ms. Nasrin Parvin Shefali, A.A.G.
Writ Petition No. 2762 of 2001
On an application under Article 102 of the Constitution of Bangladesh this Rule Nisi was issued at the instance of the petitioner calling upon the respondents to show cause as to why the judgment and order dated 21.9.2000 passed by the First Court of Settlement, Dhaka, Bangladesh, in Settlement Case No.40 of 1996 (Ka-45) in respect of House No.14/4, Block-C, Mohammadpur, Dhaka shall not be set aside and why the respondents shall not be directed to delete/withdraw and rescind the property from the list of abandoned property published in Bangladesh Gazette dated 23.9.1986 and or such other or further order or orders passed as to this Court may seem fit and proper.
This Writ Petition arises from the Judgment and order dated 21.09.2000 passed by the First Court of Settlement, Bangladesh, Dhaka, in Settlement case No. 40 of 1996 (Ka-45) initiated by the petitioner, Begum Nahed Afroz narrating essential facts of her case pertaining to the case property as leased out to one Roushan Ara Khatun wife of Mr. Mohammed Mahbubullah, by the Government of East Pakistan vide Registered Deed No. 13478 dated 12.12.1968. Said Roushan Ara Khatun while in peaceful possession and enjoyment of the property entered into an agreement with the petitioner to sell the property for TK= 2,00,000/= (Taka Two Lac). Thereafter, said Roushan Ara Khatun obtained permission from the Government to sell the property to the petitioner vide a Memo dated 26.06.1985 and transferred the property to the petitioner vide Registered Deeds No. 17161 dated 01.08.1985 and 17376 dated 05.08.1985 respectively and delivered possession to the petitioner on 04.08.1985.
After purchase as aforesaid the petitioner got her name mutated in the Housing Department as evident from memo dated 04.09.1985 issued by the Assistant Commissioner, settlement and paid rent regularly to the Government.
Thereafter, the petitioner has constructed a five-storied building upon taking loan from the House Building Finance Corporation and obtaining Building construction plan from Dhaka Improvement Trust (now RAJUK) with the written consent of the Settlement Department given vide its memo dated 29.10.1985.
Predicated on the above facts, the petitioner contends that the property in question was never treated as abandoned nor it could be so treated. It is also asserted that the petitioner through her vendor has been continuously possessing the property which is evident from an inquiry report dated 16.03.1985 submitted by one Nurul Alam, Administrative Officer, Mohammedpur Housing Estate, Dhaka. Given that no notice under Section 5(1) (b) of the Abandoned Building (Supplementary Provisions) Ordinance, 1985 (Ordinance No. LIV of 1985) (“Ordinance”) was issued to the petitioner regarding inclusion of the property in “Ka” list of the abandoned buildings, it is further submitted that the property in question was never declared as abandoned nor treated as such nor possession of the said property was taken by the Government at any time. It is against this backdrop that the petitioner Begum Nahed Afroz instituted case No. 40 of 1996 (Ka-45).
It is noted that the Government actively contested the case without, however filing a written statement. The Court of Settlement after contested hearing dismissed the case of the petitioner by its Impugned Judgment and Order dated 21.09.2000. At this stage the petitioner moved this court against the Judgment and order of the Court of Settlement under Article 102 of the Constitution and obtained the present Rule and order of injunction.
The respondent No. 2, Government of Bangladesh filed Affidavit in opposition denying all the material allegations made in the petition contending, inter alia, that the original allottee, Raushan Ara Khatun after emergence of Bangladesh left the country leaving the property uncared for and consequent upon which Government of Bangladesh declared the case property as an abandoned property under the provision of Article 2(1) of the President’s Order No. 16 of 1972. It is asserted that the Government after completing all formalities published Gazette under the provision of Section 5(1) of the Ordinance LIV of 1985 which is conclusive evidence of the fact of the abandoned status of the case property under Section 5 (2) of the Ordinance. Given further that the claimant petitioner has totally failed to prove her vendor’s whereabouts by adducing evidence and hence listing of the property in the Gazette is lawful and a conclusive proof of facts.
Mr. M.I. Farooqui, Senior Advocate with Mr. Shaheed Alam, learned advocates appearing on behalf of the petitioner, submit that the Court of Settlement while passing the impugned Judgment did not consider the relevant question whether the property was left uncared for at any time when the P.O. No. 16 of 1972 came into force on 28.02.1972, the preamble of which clearly states that the said Order was to make provision for the control, management and disposal of certain property by certain persons who were not known or who had ceased to occupy or supervise or manage in person their property or who were enemy alien. They submit that in the present case, the petitioner’s vendor Roushan Ara was in possession of the property and has never ceased to supervise and manage her property at the time when the abandoned property Order came into force. Moreover, the original lessee Roushan Ara it is pointed out, was accorded permission by the lessor, the respondent no. 2 upon due inquiry to sell the property to the petitioner which amply proves that Roushan Ara is a citizen of Bangladesh and had active possession, ownership and management of the case property on all material dates. Learned advocates for the petitioner referring to relevant evidences adduced and produced before the Court of Settlement to substantiate the claim of the petitioner further submit that the petitioner while deposing as PW-1 has proved all the relevant papers and documents in substantiation of not only the issue of an unbroken chain of title from 1968 onwards, but also to establish the presence of the vendor in Bangladesh on material dates and her active possession. The petitioner was also cross-examined by the Respondent no. 2, the Government but nothing said by the PW-1 either during her examination -in-chief or, significantly, during cross-examination on behalf of the Government contradicts or dislodges the factual basis of Begum Nahed Afroz’s claim that the property is not abandoned one. It is also argued that the Court of Settlement arrived at findings without considering material evidences and facts causing prejudice to the petitioner and as such the judgment and Order of the Court of Settlement is liable to be declared illegal and to be set aside.
Mr. Sukumar Biswas, learned Assistant Attorney General appearing on behalf of the Respondent No. 2, the Government opposing the Rule submits that this Court in the exercise of its Writ Jurisdiction is not required to sit on appeal over the Judgment and Order of the court of Settlement unless it could be shown that the tribunal had acted without Jurisdiction or made any finding upon no evidence or without considering any material evidence/ facts or that it had acted malafide or in violation of any principle of natural Justice. Mr. Biswas further submits that Section 5(2) of the Ordinance clearly provides that the list published under sub-section (1) shall be conclusive evidence of the fact that the building included therein is an abandoned property and has vested in the Government as such. The onus, therefore, it is argued squarely lies on the claimant of the building to prove that the building is not an abandoned property. It is asserted in the regard that the Government has no obligation either to deny the facts alleged by the claimant or disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant. It is also argued that no rebuttable evidence could be adduced by the petitioner to show that original owner Roushan Ara Khatun was present in Bangladesh and that she occupied, managed or supervised the disputed building when President’s Order 16 of 1972 came into operation. Hence the listing of the property as an abandoned property under the Ordinance, was lawful as it was an abandoned property by operation of law. In support of his submissions Mr. Biswas referred to the cases Government -Vs- Md. Jalil and others reported in 48 DLR (AD) 10, Government -Vs- Ashrf Ali reported in 49 DLR (AD) 161, Asma Begum -Vs- Bangladesh and others reported in 21 BLD (AD) 134, and Secretary, Ministry of Works -Vs- Roushan Ara Begum reported in 57 DLR (AD) 167.
We have heard the learned advocates for the parties, perused the Impugned Judgment and Order, application and Records of the Court of Settlement.
At the very outset this Court notes, by reference, in particular, to the ratio decidendi of the Appellate Division’s judgments in Government of Bangladesh vs. Md. Jalil and others reported in 48 DLR (AD) (1986), 10 and in Government of Bangladesh vs. Ashraf Ali reported in 49 DLR (AD) (1997), 161, that this Court in the exercise of its Writ Jurisdiction is not necessarily to sit on appeal over the judgment and order of the Court of Settlement. Instead, this Court in considering a Writ of Certiorari as this needs to be conscious of the necessity to fundamentally ascertain the extent to which the judgment of the Court of the Settlement may have been perverse. The scope and objective of that limited execise of jurisdiction has, for example, been clearly spelt out by the Appellate Division in the Md. Jalil Case limiting intervention under Article 102 of the Constitution in cases whether the Court of Settlement’s findings may be said to have been based on no evidence or proceeded upon non-consideration of material evidence or facts or whether the Court of Settlement may be found to have acted mala fide or in violation of any principle of natural justice, thereby, these grounds individually or cumulatively contributing to a scenario where the Court of Settlement may be found to have acted without jurisdiction.
Mr. Biswas further submits that a fairly entrenched Judicial view endorses the statutory sanction provided under Section 5(2) of the Ordinance to be conclusive as to the inclusion of buildings in Section 5- lists of abandoned buildings as being in evidence of both their abandoned status and their consequential vesting in the Government. In reply to this, Mr. M.I. Farooqui submits that, for all its apparent certainty of purpose and object, Section 5(2) of the Ordinance has but a rebuttable presumption attached to it and it is for the affected party to prove by adducing evidence to the satisfaction of the Court of Settlement that the case property is not indeed an abandoned property.
This Court notes that without detracting in any way from such entrenched judicial views pertaining to Section 5(2) of the Ordinance, due significance has necessarily to be attached to the fact that the burden of proof so to be discharged by a claimant affected party has one primary purpose which has to do with establishing the basic fact that at the time of the promulgation of President’s Order No.16 of 1972 as applicable to the present facts and circumstances, the petitioner, Begum Nahid Afroz or her predecessors-in-interest, as identified through an unbroken chain of title, were indeed in possession of the case property. In other words, the burden of proof may be found to be discharged duly should it be established that the said petitioner or her predecessors-in-interest occupied, supervised or managed the case property before and after 28.2.1972, that is the date on which the P.O. 16 of 1972 came into force.
It is predicated on the above principle and standards of interpretation and application of law that this Court has perused the contents of the Judgment and Order of 21.09.2000.
It appears from the Judgment and additional reference to the Records of the Court of Settlement as called for and made available to this Court, the Court of Settlement was unmindful of ensuring that the claimant Begum Nahed Afroz before it took all steps to place relevant evidence to substantiate her claim e.g., original lease deed of Mrs. Raushan Ara Khatun dated 12.12.1968, an enquiry report submitted by the Administrative Officer, Mohammedpur Housing Estate, dated 17.03.1985 to the effect that Roushan Ara Khatun is in possession, to the Assistant Commissioner Settlement (Annexure-G), Memo dated 16.06.1985 according permission to sell the property, Memo dated 04.09.1985 issued by the Assistant Commissioner Settlement mutating the name of the petitioner, NOC/permission dated 29.10.1985 issued by the Assistant Commissioner Settlement to mortgage the property to the House Building Finance Corporation (HBFC) as security against loan, sanction letter issued by RAJUK approving building plan, sanction letter dated 16.06.1986 issued by HBFC evidencing granting of loan, deeds of sale dated 01.08.1985 and 06.08.1985 respectively as are otherwise found in the Records of the Court of Settlement Additionally the petitioner adduced evidence particularly in the form of the deposition and was also cross-examined by the Government. Apart from this the petitioner, to substantiate her claim, called for the original documents from HBFC and the records of the Government as well as from the Housing Department but the Government did not submit its records in the Court of Settlement as evident from the Order No. 27 dated 20.08.2000. Non-submission of records before the Court of Settlement by the Government, in this Court’s view, itself strengthened the claim of the petitioner. It appears that the court of Settlement consequentially remained silent about those documents and continuous private ownership and management of the property from 1968 onwards with title and possession eventually devolving unto the petitioner, Nahed Afroz as a bona fide subsequent purchaser for value upon a chronological examination of the initial lease granted to Roushan Ara Khatun in 1968 by the Governor, East Pakistan through an indenture of agreement of that date produced in court. The statement of PW-1 given in deposition generally reads as an affirmation of the facts as above given as significantly confirmed during cross-examination and in particular proves the presence of Roushan Ara Khatun in Bangladesh at all material times as evident, in particular, from the inquiry report dated- 17.03.1985 (Annexure-G) which is quoted below:
প্রশাসনিক কর্মকর্তার কার্য্যালয়
মোহাম্মদপুর হাইজিং এষ্টেট ঢাকা
স্বারক নং- ১৫৩/এ, ও তারিখ- ১৭/৩/৮৫
সহকারী কমিশনার সেটেলমেন্ট,
বিষয়ঃ মোহাম্মদপুরসহ “সি” ব্লকের ১৪/৪ নং প্লট বাড়ীর তদ প্রসংগে
সুত্রঃ- স্বারক নং-১৩৬২/কসে, তাং ৮/৩৮৫ ইং
অাপনার উপরোও্র প্রেরিত স্বারক মোতাবেক মোহাম্মদপুরসহ ঞ্ছ সিঞ্জ-ব্লকের ১৪/৪ প্লট বাড়ীটি তদ¿¹ করিয়া দেখা যায় যে, জনাবা মিসেস রওশন আরা খাতুন, স্বামী- আবদুল্লাহ ড~ও্র প্লটের মূল বরাদ্দ গ্রহিতা z বরাদ্দ পত্র নং -১৫৭৫/সি, এইচ,এস, তাং ১৬-৮-৬৮ ইং এবং লিজ দলিল নং-১৮২১৫ তাং ১২/১২/৬৮ ইং z প্লট বাড়ীর খাতে সরকারের সম্পুর্ন কিসি¹র টাকা পরিশোধ করা আছে z দায়মুও্রি ছাড় পত্র নং ২২৬০/উ তাং ১৫/৭/৭৭ ইং z বর্তমানে উও্র প্লট বাড়ীটি মালিক জনাবা মিসেস রওশন আরা খাতুনের দখলাধীন আছে
সদয় অবগতি ও প্রয়োজনীয় ব্যবসহা গ্রহনের জন্য প্রেরন করা হইল
মোহাম্মদপুর হাউজিং এষ্টেট,
Mr. M. I. Farooqui now stresses the fact that by issuing in due course the permission to sell the property upon such inquiry by the Administrative Officer, the Government is now estopped from raising any objection regarding the whereabouts of the original lessee Mrs. Roushan Ara Khatun. Equally nothing said by PW-1 either during examination-in-chief or during cross-examination on behalf of the Government contradicts or dislodges the basic facts as above as could otherwise have reasonably led the Court of Settlement to question the very factual basis of Nahed Afroz’s claim that the case property is not an abandoned one. But evidently all these evidences and facts have been ignored by the Court of Settlement by making a third case of its own questioning the power and authority of the Assistant Commissioner Settlement to give permission to the lessee to sell the property though no such case or argument made out on behalf of the Government. It appears that the Government only argued that the papers and documents submitted on behalf of the petitioner claimant are all false and fabricated. In that situations, the law says that the burden of proof lies on the person who claims and or pleads fraud. The Government could not prove such allegations by any means or even, in the very minimum, produce the record lying with them though it was called for by the Court of Settlement.
Given this Court’s understanding of the essentials of enquiry as to the status of any property under the relevant provisions of the Ordinance as above explained, it is found that the claimant Nahed Afroz had duly discharged her onus of proving her case independently of the Government and that in doing so she had by a set of mutually reinforcing evidence produced generally established a continuous scenario of active ownership, occupation, supervision and management of the said property both before and after the promulgation of President Order 16 of 1972.
This Court finds further that there was nothing on record that could have reasonably led the Court of Settlement to find otherwise. But the Court of Settlement without following a judicial approach in determining the question of facts involved in this case, unfortunately passed the judgment without giving a due judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason, and by confining this Court’s scrutiny to the objective of finding whether the impugned judgment is perverse or not, this Court has inevitably arrived at the conclusion that the Court of Settlement’s judgment and Order dated 21.09.2000 is indeed a perverse one being contrary to the facts circumstances and evidences on record. By, that reason, we are inclined to interfere with the impugned judgment of the Court of Settlement as prayed for.
Accordingly, this Court finds merit in the application and substance in the Rule Nisi issued.
In the result, the Rule is made absolute however, without any order as to costs. The Judgment and Order dated 21.09.2000 passed by the First Court of Settlement, Dhaka, in Settlement Case No. 40 of 1996(Ka-45) in respect of House No.14/4, Block-C, Mohammadpur, Dhka, is hereby set aside and the respondents are directed to delete/withdraw and rescind the property from the list published in Bangladesh Gazette dated 23.09.1986 immediately upon receipt of this Judgment.
Send down the Records received from the First Court of Settlement, Segunbagicha, P.S. Ramna, Dhaka forthwith.
Reference: 4 LNJ (2015) 94