Capt. S.M. Nasirul Huq and others Vs. Bhawal Raj Court of Wards Estate 2017 (2) LNJ 81

Case No: Writ Petition No. 3979 of 2003

Judge: Syed Refaat Ahmed. J.

Court: High Court Division,

Advocate: Mr. Golam Arshad, Md. Nurul Islam,

Citation: 2017 (2) LNJ 81

Case Year: 2017

Appellant: Capt. S.M. Nasirul Huq and others

Respondent: Bhawal Raj Court of Wards Estate

Subject: Writ Jurisdiction

Delivery Date: 2017-09-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

Syed Refaat Ahmed, J

And

Md. Salim, J.

Judgment on

07.03.2017

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Capt. S.M. Nasirul Huq and others

. . . Petitioners

VERSUS

Bhawal Raj Court of Wards Estate, represent by it Manager, 141-143, Motijheel Commercial Area, Police Station- Motijheel, Dhaka- 1000 and others

. . . Respondents.

Constitution of Bangladesh, 1972

Article 102

State Acquisition Rules, 1955

Rules 27, 30, 31 and 42A

This Court finds that the sequence of work under Rule 27 is to be adhered to strictly and a clear reading of Rule 42A reveals that a corrective exercise thereunder can only be embarked upon at a stage intermediate between stages (ix) and (x) enumerated under Rule 27. In the facts as submitted by the Petitioners it is noted that the impugned intervention under Rule 42A came post-preparation and publication of the Record-of-Right as in stage (x) under Rule 27 above in a manner not contemplated under the Rules. As aptly submitted by Mr. Golam Arshed for the Petitioner the only avenue at that juncture available to the Respondents, if at all, for a correction of the relevant S.A. Record-of-Rights was to agitate their case before a civil court. That is indeed a view, this Court finds, that has clearly been enunciated earlier by this Court and affirmed by the Appellate Division in a series of Writ Petitions already identified hereinbefore and generated incidentally under the related appeals of the Respondent No.1 under Rule 42A. Rules Nisi issued in all those Writ Petitions were notably made absolute by this Court’s common Judgment and Order dated 20.5.2008. By reason of the above and the findings of its own as above stated, this Court finds merit in the Application and substance in the Rule issued.        . . . (6, 8 and 11)

Romisa Khanam Vs. Bangladesh in 61 DLR (2009), 18 and Bhawal Raj Court of Wards Estate Vs. Rasheda Begum and others, 14 MLR (AD) 2009, 401 ref.

Mr. Golam Arshed, Advocate

. . . For the Petitioners.

Mr. Md. Nurul Amin, Advocate

. . . For the Respondent No. 1

Mr. Amit Talukder, DAG

… For the Respondents.

JUDGMENT

Syed Refaat Ahmed, J: In this Application under Article 102 of the Constitution a Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned Judgment and Order dated 10.2.2003 passed on rehearing by the Respondent No. 7 Appeal Officer-in-Charge and Assistant Settlement Officer and approved by the Respondent No. 6 Settlement Officer, Dhaka on 6.3.2003 in Appeal Case Nos. 2480 and 2481 of 1999 (as similarly done in Appeal Nos. 2463-2467, 2471-2474, 2476, 2478-2479, 2482-2488, 2490-2501 of 1999) under Rule 31 of The Tenancy Rules, 1955 (“Rules”) setting aside the earlier decision dated 22.11.99 passed by the same Office in the same Appeals should not be declared to have been passed without any lawful authority and is of no legal effect and not binding upon the Petitioners or such other or further Order or Orders passed as to this Court may seem fit and proper.

2.          The Petitioner’s case in short is that the 3.49 acres of land of C.S Plot No. 139, Khatian No. 2 of Mouza Rajabazaar, Dhaka inclusive of the Petitioner’s 0.63 acre land originally belonged to the Bhawal Raj Court of Wards Estate, Respondent No. 1 who settled the said land in 1927 and after wholesale acquisition of such lands under the State Acquisition and Tenancy Act, 1950 (“Act”) the disputed land vested upon the Government. The Petitioners assert that consequently they became Government tenants and had their names recorded in S.A. Record. It is also asserted that under the Metro or Mahanagar Survey that more recently took place, the Petitioners’ said 0.63 acre of land of C.S. Plot No. 139 has been recorded in their name at the “Tasdik” or recording stage. But all on a sudden the Respondent No. 1 filed Objection Case Nos. 230 and 231 for recording its name in Metro Khatian No. 2563 Plot No. 2635, 2638 and 2639 and Khatian No. 2526 only on the ground that the C.S. Khatian No. 2 stands in their name. That claim of the Respondent No.1 was rejected upon hearing all parties concerned by the Judgments and Orders dated 25.11.1999 and 29.12.1999. Against said Judgments and Orders the Respondent No. 1 preferred Appeal Nos. 2480 and 2481 of 1999 under Rule 31 of the Rules which were also rejected analogously along with other similar appeals by the Respondent No. 7 Settlement Officer’s Judgment and Order dated 22.11.1999. Three years later, the Respondent No. 1 Manager of Bhawal Raj Court of Wards Estate filed an Application on 14.7.2002 to the Settlement Officer, Dhaka to rehear the previously disallowed Rule 31 Appeal Case Nos. 2463 to 2501 of 1999 (inclusive of Appeal Nos. 2480 and 2481 of 1999) by invoking in that regard Rule 42A of the Rules. On the basis of the said application, the Respondent No.7 Officer reheard all the Appeals and allowed the same by his Judgment and Order dated 10.2.2003 as approved by the Respondent No. 6 Settlement Officer, Dhaka on 6.3.2003. Against the said impugned Order dated 10.2.2003 passed in Appeal Nos. 2480 and 2481 of 1999 the present Petitioners have filed the instant Writ Petition and obtained the Rule. On the other hand, Romisa Khatun and others also filed Writ Petition Nos. 2678 of 2005, 3797 of 2003, 6671 of 2004, 6262 of 2005 and 1512-13 of 2006 against the said Judgment and Order dated 10.2.2003 stemming from the other appeals. It is in this context that the Petitioners challenge the impugned Order to record the disputed land in the name of Respondent No. 1 as being illegal and without any lawful authority.

3.          The Petitioners assert that the disputed lands in C.S Plot No. 139 were not in the list of choice land of the Respondent No. 1 and as such the Respondent No.1 lost all rent-receiving interest in such land on and from April 1956 under a Gazetted Notification of 1956 published under the Act and as such the Respondent No.1 has illegally claimed ownership of the disputed land. Consequently, the impugned second appellate Judgment and Order dated 10.2.2003 recognizing such claim of the Respondent No.1 is submitted to be illegal and beyond the provisions of law.

4.          Drawing on the terms of the Bhawal Raj Court Manager’s application of 14.72002 the Petitioners’ learned Advocate Mr. Golam Arshed has argued at the outset that the Rule 31 Appeal Nos. 2480 and 2481 of 1999 being once disallowed by Respondent No. 7, such Appeal Officer is not entitled to reopen and rehear the same under the same provision of law or rule. Instead, it was for the concerned Respondent Nos. 6 and 7 to recognize at this juncture that the initial rejection Orders disfavouring the Respondent No. 1 aptly reflect the scheme of the law and the Rules in particular. That is, the Petitioners having had their names duly recorded in the S.A. Record-of-Rights, the details of such finally prepared and published Record were also reflected in the draft Mahanagar or the Metro Survey. In such a case, the only option available to the Respondent No. 1 was to challenge the S.A. Record through a civil suit brought before an appropriate forum. There, in the facts, remained neither any residual right vested in the Respondent No. 1 Bhawal Raj Court nor any authority in the Respondent Nos. 6 and 7 Settlement Officers under the Rules to instead delve into the facts and circumstances of the publication of the final S.A. Record in the Petitioners’ favour. Moreover, it is submitted on behalf of the Petitioners that Rule 42A of the Rules exceptionally provides for a correction of entry provided there is established a ground of fraudulent entry and that such correction is sought prior to final publication of Record-of-Rights. Neither of these ingredients, Mr. Golam Arshed submits, are present in the Respondent No. 1’s case.

5.          This Court has, in consideration of the submissions above, perused in particular the provisions on Appeal and Preparation of Final Records in Rules 31 and 32 respectively of the Rules and finds no sanction therein for:

(a)   rehearing a final order of initial appeal; and

(b)   objections to be entertained after preparation and publication of final record.

Indeed, Rule 31 only permits of a single appellate process resulting in a final order on any such appeal. 

6.          The Petitioners’ case is also significantly focused on the justifiability of interference under Rule 42A of Rules at the stage of revision of Record-of-Rights under Section 144 of the Act. Rule 27 of Chapter VII of the Rules enumerates sequentially the stages of the work involved in this regard and reads thus:

“27. Stages of the work:­­- The work shall ordinarily consist of the following stages, namely:

(i)     traverse survey;

(ii)   cadastral survey;

(iii) erection of boundary marks;  

(iv)  preliminary record-writing (Khanapuri);

(v)    local explanation (Bujharat);

(vi)  attestation;

(vii)        publication of draft record;

(viii)      disposal of objections;

(ix)  filing of appeals and disposal thereof;

(x)    preparation and publication of final record.”

This Court finds that the sequence of work under Rule 27 is to be adhered to strictly and a clear reading of Rule 42A reveals that a corrective exercise thereunder can only be embarked upon at a stage intermediate between stages (ix) and (x) enumerated under Rule 27.

7.          Rule 42A finds its place under Chapter VIII of the Rules, with this Chapter being devoted to the powers of Revenue Officers in revising Record-of-Rights under Section 144. Rule 42A reads thus:

“42A. Correction of fraudulent entry before final publication of record-of-rights- The Revenue-officer, with the additional designation of “Settlement Officer” shall, on receipt of an application or on receipt of an official report for the correction of an entry that has been procured by fraud in record-of-rights before final publication thereof, after consulting relevant records and making such other enquires as he deems necessary, direct excision of the fraudulent entry and his act in doing so shall not be open to appeal. At the same time, the Revenue-officer shall make the correct entry after giving the parties concerned a hearing and recording his finding in a formal proceeding for the purpose of future reference.” (Emphasis added by this Court)

8.          In the facts as submitted by the Petitioners it is noted that the impugned intervention under Rule 42A came post-preparation and publication of the Record-of-Right as in stage (x) under Rule 27 above in a manner not contemplated under the Rules. As aptly submitted by Mr. Golam Arshed for the Petitioner the only avenue at that juncture available to the Respondents, if at all, for a correction of the relevant S.A. Record-of-Rights was to agitate their case before a civil court. That is indeed a view, this Court finds, that has clearly been enunciated earlier by this Court and affirmed by the Appellate Division in a series of Writ Petitions already identified hereinbefore and generated incidentally under the related appeals of the Respondent No.1 under Rule 42A. Rules Nisi issued in all those Writ Petitions were notably made absolute by this Court’s common Judgment and Order dated 20.5.2008. 

9.          The impugned second appellate Judgments and Orders in all those Writ Petitions order were declared to have been passed without any lawful authority and to be of no legal effect and the first appellate Orders dismissing the appeals of the Respondent Bhawal Raj Court of Wards Estate presented under Rule 31 of the Rules were, consequentially, restored by this Court. That Judgment reported as Romisa Khanam vs. Bangladesh in 61 DLR(2009), 18 gave rise to Civil Petition for Leave to Appeal Nos. 1447-1452 of 2008 before the Appellate Division. The Appellate Division’s Judgment and Order dated 14.7.2009 dismissing all the said Civil Petitions by the Judgment and Order dated 14.7.2009 is found reported as Bhawal Raj Court of Wards Estate vs. Rasheda Begum & ors. in 14 MLR (AD) 2009, 401. The ratio decidendi of the Appellate Division’s Judgment to which this Court wholly subscribes to for reasons as explained hereinabove and as applies to the similar facts in this instant Writ Petition is quoted herein below:

“The Learned Advocate appearing for the leave petitioner, when confronted with the aforesaid gazette notifications dated 24.03.1952 and 29.02.1952, as to acquisition of rent receiving interest and the vesting of lands of the leave petitioners, including the case lands, found it difficult to substantiate the locus standi of leave petitioner in challenging the draft records of right prepared in the names of the respective writ petitioners in respect of their respective case lands prepared during the Mohanagar Survey. Further with the publication of the gazette notifications dated 24.3.1952 and 29.2.1956 the leave petitioner ceased to have any right, title and interest and possession in the case lands, because of acquisition, and vesting of rent receiving interest of said lands in the Government.

On plain reading of the Rule 42A, quoted above, it appears that the settlement officer is empowered to pass order only on receipt of an application or on receipt of an official report, for correction of an entry in the record of right, procured by fraud, before final publication thereof. Thus the said Rule cannot be applicable in the instant case inasmuch as the record of right as prepared is in accordance with the past records of right prepared during S.A. Operation and R.S.  Operation and there being no change as to the names as appearing in the said records of right the question of fraud in recording the entry of names in the recent record of right prepared after the Mohanagar Survey  does not arise. Apart from that after final publication of the record of right, after the S.A. Survey the only mode for correction of the same was through civil court and thus subsequent to preparation of S.A. record of right, the R.S. record of right was prepared and after final publication thereof the mode for correction of any wrong entry appearing in the R.S record was through Civil Court and without moving the Civil Court no correction in those records of right is lawful or permissible and as such the draft record of right in the instant case having been prepared following the preparation of the S.A. and R.S. records in accordance with law, the attempts of the leave petitioner for  correction under Rules-30 and 31 of the State Acquisition Rules, 1955 have failed. The plain reading of the application dated 14.7.2002, quoted above, allegedly filed under Rule 42A of the State Acquisition Rules, 1955, said application do not contain any specific allegation of any act of fraud and it is the settled principle of law that an application, not having disclosed any act of fraud in its body, is not entertainable and liable to be rejected. Without correcting the S.A Khatian and R.S. Khatian as prepared in respect of the case lands in accordance with law earlier, the leave petitioner cannot get its name entered in the recent record of right prepared during Mahanagar Survey allegedly only on the basis of C.S. Khatian.

Thus we are of the view that the leave petitioner had not locus-standi to challenge the draft Mahanagar Survey Khatian as prepared in the names of the respective writ petitioners, at-least after publication of the gazette notifications dated 24.3.1952 and 29.2.1952”(Emphasis added by this Court).

10.      The learned Advocate for the respondents Mr. Md. Nurul Amin has candidly acknowl-edged the applicability the binding effect of the said Appellate Division Judgment to the facts and circumstances arising under the instant Writ Petition and finds, resultantly no ground to oppose this Rule. 

11.      By reason of the above and the findings of its own as above stated, this Court finds merit in the Application and substance in the Rule issued.

12.      In the result, the Rule is made absolute.

13.      There is no Order as to costs.

        Communicate this Order at once.

Ed.

 



Writ Petition No. 3979 of 2003