Court of Wards Bhawal Raj Estate Vs. Eastern Housing Ltd. and others, 2 LNJ (2013) 286

Case No: Civil Revision No. 230(Con) of 2009

Judge: Sharif Uddin Chaklader,

Court: Appellate Division ,,

Advocate: Mr. T. M. Shakil Hasan,Mr. Md. Khalilur Rahman,Mr. Md. Abdul Haque,,

Citation: 2 LNJ (2013) 286

Case Year: 2013

Appellant: Court of Wards Bhawal Raj Estate

Respondent: Eastern Housing Ltd. And others

Subject: Limitation,

Delivery Date: 2009-07-08

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sharif Uddin Chaklader, J.
And
Md. Emdadul Haque Azad, J.

Judgment
08.07.2009
 
Court of Wards Bhawal Raj Estate
. . . Petitioner/ Appellant
-Versus-
Eastern Housing Limited and others
. . . Opposite Parties/ respondents.  
 
 
Limitation Act (IX of 1908)
Section 5
The entire statements of the application for condonation of delay with supplementary affidavit reflect the appellants callousness, negligence, slothful manner and indolent attitude. Even if it is considered the entire explanation as given by the petitioner in the supplementary-affidavit as true and genuine in that case also for the period from 24.4.2008 to 27.8.2008, that is about 4 months delay remained unexplained for which the delay of 191 days in filing the first appeal was not condoned. Moreso, the plaintiff has no case on merit. . . .(10 and 11).
 
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 3
Limitation Act (IX of 1908)
Section 5
It appears that plaintiff has no subsisting interest in instituting the suit. The impugned Gazette notification was published under Section 3 of the State Acquisition and Tenancy Act with reference to particular estates, taluks, tenures, holding and tenancies and in respect of all rent receives whose properties were under the management of court of wards Act, 1878. Sub-Section (2a) was enacted and introduced in Section 3 of the Act by Ordinance No.111 of 1956. It is after this amendment that general notification dated 2nd April, 1956 were issued district wise in regard to all rent receiving interest which thereafter vested in the government with effect from 14.04.56 in terms of those notification. As such, after 14.4.56 the plaintiff has no right, interest or possession in itself, whatever it has, has under the Government, not of it in any individual form to initiate any proceeding. A titleless person has no legal character to initiate any proceeding as such no effective result would be available to the appellant if appeal is admitted on condonation of delay. . . .(20)
 
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 3(1)
Limitation Act (IX of 1908)
Section 5
Plaint was rejected, as per provision of Order VII rule 11 of the Code of Civil Procedure, as it is barred by law and by framing of issue as per order XIV rule 2 of the Code of Civil Procedure, the learned Judge rejected the plaint. Plaintiff as it appears from all the documents produced before us and produced before trial Court, that he has no title, it’s title has been swallowed by the Government as per gazette notification of Monday, 24th March, 1952 published under provision of section 3 (1) of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), if the appeal is registered on condonation of delay, the plaintiff instead of being benefited in any manner will be driven to a fruitless litigation as it appears the defendants after getting the land from the land owners and also from Government have been possessing the same for 50 years. . . . (21)
 
People’s Republic of Bangladesh, represented by the Deputy Commissioner, Sylhet and others Vs. Sri Sri Madan Gopal Jew Bigraha, 53 DLR (AD) 13; Anwara Begum Chowdhury Vs. Nur Jahan Begum and others, 27 DLR (AD)109; Samtannessa Bewa vs. Haimatullah Sarker, 41 DLR(AD)105; Gopal Das Soni and another Vs. Government of Bangladesh and ors, 13 BLC (AD) 69; Government of the People’s Republic of Bangladesh, Ministry of Works and others Vs. Mr. Alauddin 21 BLD (AD) 35; Govern-ment of the People’s Republic of Bangladesh and others Vs. Md. Jahangir Ali and others 21 BLD 315; Government of the People’s Republic of Bangladesh and others Vs. Md. Jahangir Ali and another 53 DLR (HCD) 365; Bangladesh vs. Abdul Wahab and others 45 DLR 30; Province of East Pakistan Vs. Abdul Hamid Dargee, 21 DLR 824; Bangladesh Vs. Suppliers and Building Corporation, 1991 BLD 194; Subash Chandra Chowdhury and another Vs. Government of Bangladesh, 46 DLR 663; Promode Ranjan Shaha Vs. Government of Bangladesh, 33 DLR 53 ref.
 
Mr. Md. Abdul Haque, Advocate
. . .For the Petitioner/appellant.

Mr.Md. Khalilur Rahman, Advocate with
Mr. T.M.Shakil Hasan, Advocate
...For the opposite parties /respondents.

Civil Revision No. 230(Con) of 2009
 
JUDGMENT
Sharif Uddin Chaklader, J:

This rule for condonation of delay of 191 days in tendering the Appeal from Original Decree against judgment and decree dated 29.10.2007, passed by the learned Joint District Judge, 3rd Court, Dhaka in Title Suit No.212 of 2006 rejecting the plaint under order VII rule XI of the Code of Civil Procedure, after framing issue as per provision of the order XIV rule 2 of the Code of Civil Procedure.

The facts disclosed, briefly in that, plaintiff-appellant filed the aforesaid suit for a declaration of title against the defendants that the land measuring 1.54 acres with ponds, homestead, viti, road and passage, described in schedule Ka, belongs to the plaintiff, with further declaration for delivering possession after removing the structure from there.

Defendants appeared in the suit and filed two applications, one, under order VII rule 11 of the Code of Civil Procedure for rejection of the plaint as it is barred by law and another, under order XIV rule 2 of the for framing issued for that purpose. The learned Judge framed issue as to the maintainability of the suit and after hearing both side rejected the plaint on the ground of maintainability. In passing the order, learned judge found that against the application filed under order VII rule 11 of the Code of Civil Procedure, plaintiff did not file any written objection as plaintiff submits as “বাদী/প্রতিপক্ষ আপত্তি দাখিল করেন নাই এবং মৌখিকভাবে জানান যে, তাহাদের আপত্তি দাখিলের আবশ্যকতা নাই।”

Learned Judge after hearing both the parties, was of the opinion that, by Dhaka gazette notification dated 29.2.1956 and also in 1965, at serial No.31, rent receiving interest of Surujbala Bibi and others have been taken over by the Government and also the learned judge on consideration of C.S and R.S. khatian, finally came to the decision that, plaintiff has no title in instituting the suit.

Against this judgment and decree, plaintiff filed this appeal before this Court, out of time of by 191 days and filed an application for condonation of delay of the aforesaid days. This Court issued rule upon the defendant-respondents to show cause as to why the delay in filing the appeal should not be condoned.

Mr. Md. Abdul Haque, learned Advocate, appearing for the plaintiff-appellant, submits that, the delay has been explained in the supplementary-affidavit, as such this Court should condone the delay. Learned Advocate frankly submits that, originally, in the application for condonation of delay, delay of 191 days was not been properly explained. Learned Advocate further submits that, since the plaintiff filed advolerum Court fees of Taka more than forty thousands, the delay should be condoned.

Mr. Md. Khalilur Rahman, learned Advocate, appearing for the defendant-opposite parties, submits that, usually he did not raise objection for condonation of delay of 191 days in preferring the appeal but he submits that, no effective result will be available to the plaintiff, save and except dragging this matter for unlimited period and thereby hanging the defendants in condoning the delay, as plaintiff failed to prove title for instituting the suit and did not file any written objection against the averments made in the application for rejection of the plaint, in Court below, as such the delay should not be condoned. Learned Advocate taken us to the annexures with the counter-affidavit filed against the application for condonation of delay, particularly annexure-1, and submits that by gazette notification published on Monday, March 24, 1952, in exercise of the power conferred by sub-section (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No.XXVIII of 1951), Government notified for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1952, all interests of the rent-receivers named in column 1 of the schedule below, in the estates and taluks and tenures, the particulars whereof are given in column 2 of the schedule, against their names, including all their interests in all sub-soil and rights to mineral in such estates and taluks and tenures and in column, the name of the plaintiff appeared and also in column 2 (a), particularly, Mirash Raja Rajendra Narayan Roy, under Sk.Tq. Krishna Prosad Khojanehi, Mohal No.49 has been acquired by Government with all rent receiving interest from March 24, 1952. Learned Advocate in support of his submission, relied on the decisions, of  People’s Republic of Bangladesh, represented by the Dy. Commissioner, Sylhet and others vs. Sri Sri Madan Gopal Jew Bigraha, 33 DLR (AD) 13, 53, the case of Anwara Begum Chowdhury vs. Nur Jahan Begum and others, 27 DLR (AD)109, the case of Samtannessa Bewa vs. Haimatullah Sarker, 41 DLR (AD)105, the case of Gopal Das Soni and another vs. Government of Bangladesh and ors, 13 BLC (AD) 69, the case of Government of the People’s Republic of Bangladesh, Ministry of Works and others vs. Mr. Alauddin 21 BLD (AD) 35, the Case of Government of the People’s Republic of Bangladesh and others vs. Md. Jahangir Ali and others 21 BLD 315, the case of Government of the People’s Republic of Bangladesh and others vs. Md. Jahangir Ali and another 53 DLR (HCD) 365.

We have considered the submissions of the learned Advocates of both sides. From the Judgment itself it appears that the plaintiff did not file a raised any objection to the application filed by the defendant-respondent-opposite party for rejection of the plaint, on the ground that it is barred by law. Before this Court, from the original application for condonation of delay the plaintiff explained the delay of 191 days in paragraphs 5 and 6, that is:-

“5. That the law officer after receiving the certified copies produced the concerned file to the Manager of the Court of Wards Bhawal Raj Estate who produced proceed the file to the Chairman of the Land Reform Board, Ministry of Land Government of the People’s Republic of Bangladesh through the Member, Land Reform Board. The Chairman, Land Reform Board passed his orders to produce the matter before a Committee formed with some learned panel Lawyers headed by member Land management to examine and give opinion regarding filing of the appeal before the Hob’ble High Court Division.

6. That the committee meeting held on 20.2.2008 and the matter was discussed in the meeting and it was decided that the Senior law Advisor (a retired District Judge) of the Court of Wards Bhawal Raj Estate will peruse the case record, impugned Judgment and decree, necessary documents and will to through the related laws and will give his opinion in respect of the Case. Accordingly the file was given to the Senior Law Advisor on 13.4.2008 and the Senior Law Advisor perused the record, impugned Judgment and decree and other necessary documents and opined on 23.4.2008 to prefer the appeal before the Hon’ble High Court Division.”

Having been in difficulty plaintiff filed supplementary-affidavit where the plaintiff explained the delay as, after the judgment, file was produced by the Manger, Court of Wards Bhawal Raj Estate to the Member, Land Reform Board, Ministry of Land on 22.11.2007. The Member Land Reform Board after perusing the file, asked the Manager, Court of Wards to take opinion from the Senior Legal Advisor (in respect of filing of the appeal) by his order dated 26.11.2007; thereafter, the file was again sent to the Chairman, Land Reform Board Ministry of land. The Chairman approved the proposal by his order dated 26.11.2007 and the file was sent to the law Officer on 27.11.2007 and the law officer produced the file to the Senior legal advisor on 27.11.2008 and the Senior legal advisor proposed to submit the matter before the board meeting (authority) for decision; the Senior legal advisor sent the file to the law Officer on 10.12.2007. The law officer consulted about the matter with the authority and produced the file on 26.12.2007 to the Manager who produced the file on the same day to the Member, Land Reform Board, Ministry of Land, who passed his order dated 27.12.2007 to take step. Thereafter, it was proposed to produce the matter before the Land Reform Board and the proposal was approved by the Chairman, Land Reform Board, on 2.1.2008. On 7.1.2008, the law officer produced the file to the Manager, Bhawal Raj Estate, for fixing a date for holding meeting and the date was fixed on 15.1.2008. But, unfortunately, the Manager had to take leave from Office for his personal difficulties and the concern lawyer of the Bhawal Raj Estate could not appear in the meeting. On 21.1.2008, the file was produced by the law officer for fixing a date of meeting and the Chairman, Land Reform Board fixed the date for holding the meeting on 29.1.2008. Thereafter, the Member, Land Reform Board, decided to hold meeting with the learned Advocate of the land Reform Board for taking a decision in respect of dismissal of the Title Suit No.212 of 2006 and thereby, the day was fixed on 20.2.2008. Then it has been written that the authority with a view to file appeal, referred the matter to Mr. Md. Faijul Kabir, learned Advocate, who opined on 6.3.2008 that appeal can not be file against the order of rejection of the plaint of the Title Suit No.212 of 2006, on 29.10.2007. But as per decision of the authority dated 20.2.2008, appellant took step for fling appeal and accordingly, Law Officer proposed on 12.3.2008 to appoint Ms. Ferdous Akhter Wahida, learned Advocate for filing the appeal. The authority approved the proposal on 23.3.2008. Then the learned Advocate, Ms. Ferdous Akher Wahida, orally refused to receive the brief, as such, the file was produced before the Manager, Court of Wards, on 1.4.2008 for appointing a new Advocate. Manager consulted with the Member and Chairman, Land Reform Board and they referred the matter to the Senior Legal Advisor on 2.4.2008. The Senior Legal Advisor opined on 3.4.2008 to file the appeal and to take opinion from the newly appointed Senior legal advisor and the law officer proposed on 6.4.2008 to appoint Mr.Md. Abdul Haque, Advocate for filing the appeal and proposal was made to the authority to sent the file to the senior legal advisor for opinion. The proposal was approved on 10.4.2008 and the file was sent to the senior legal advisor on 13.4.2008. Senior legal advisor after perusing the record, impugned Judgment and decree and other necessary documents, opined on 23.4.2008, to prefer the appeal before the Hon’ble High Court Division.

The facts disclosed in the supplementary affidavit are the inherited bureaucratic methodology smeared with note-making, file pushing and passing of the back ethoes, delay on part of the appellant is less difficult to understand but more difficult to approve. The entire statements of the application for condonation of delay with supplementary affidavit reflect the appellants callousness, negligence, slothful manner and indolent attitude. 

It appears that appeal was tendered before this Court on 27.8.2008 without second judge’s copy, which was filed on 27.8.2008. From the aforesaid narration of fact for explaining the delay in supplementary-affidavit, we do not find that, even if we consider the entire explanation given in the supplementary-affidavit as true and genuine, then we also do not find any explanation for the period from 23.4.2008 up to 27.8.2008, that is, about 4 months. This delay of 4 months has neither been sought for nor explained. It appears from the aforesaid facts that condonation of delay has been sought for in piecemeal basis. Application was filed on 27.08.2008 and supplementary affidavit was filed on 01.12.2008 which shows how much negligent and careless the petitioner was in the matter of prosecuting the appeal. In the case of Bangladesh vs. Abdul Wahab and others reported in 45 DLR-30 where it has been held that “petitioner having knowledge of limitation and without sufficient cause slept over the matter and allowed the period of limitation to run out and as such the delay cannot be condoned.”

In the case of Government of the People’s Republic of Bangladesh Vs. Mr. Alauddin, 21 BLD(AD) 35, it is observed. “It is really surprising to know that more than one year and nine months was consumed to start a part file and to file the leave petition. This is gross negligence of the part of the Solicitor wing which should not be condoned.”

In the case of Government of the People’s Republic of Bangladesh Vs. Md. Jahangir Ali and others, 21 DLR 315, it is held that negligence of an agent or servant of the Government is not sufficient cause to condone the delay.

In the case of People’s Republic of Bangladesh Vs. Sri Sri Madan Gopal Jew Bigraha, 53 DLR(AD)13, it has been held, while seeking condonation the Government officials concerned are to explain the delay for each day. In the application the condonation, a general explanation has been given without proper explanation for delay of each day.

In the case of Province of East Pakistan Vs. Abdul Hamid Dargee, 21 DLR 824, Bangladesh Vs. Suppliers and Building Corporation, 1991 BLD 194, Subash Chandra Chowdhury and another Vs. Govt. of Bangladesh, 46 DLR 663 and many other decisions of this sub-continent it has been held that as litigant, the Government stands on the same footing with ordinary litigants. As such delay of each date when not satisfactorily explained no one could get any premium whether he is a private individual, corporate body or government.

A question may arise that delay being of 191 days appellant paid court fee of more than Tk. 40,000/- and appeal is a matter of right, why the delay should not be condoned? Mr. Khalilur Rahman raises the question that after whole sale acquisition of rent receiving interest of the Zamindars by the Government, appellant lost his locus stands to initiate any case.

In the case of Gopal Das Soni and another Vs. Government of Bangladesh, 13 BLC(AD)69, it has been held, it is seen from the judgment of the High Court Division that the land in suit being the land within periphery of Khulna Hat and Bazar, compensation roll has been prepared and finally published in the gazette and that being the undisputed fact relief sought in the suit was not available to the plaintiffs so long compensation roll is not revised and the land is being shown as retainable class of land. It is also seen from the judgment of the High Court Division that compensation roll in respect of the land in suit was prepared as back as in 1962 upon assessing considerable amount of money and thereupon compensation roll has been published in the gazette. It is further seen from the judgment of the High Court Division that a sketch map has been prepared some time in 1975 by the Government in respect of the land in suit and the same has been shown within the peripehry of the Khulna Hat and Bazar. The High Court Division, on consideration of the materials on record, particularly the fact of preparation of compensation assessment roll and publication thereof in the gazette as well as the sketch map prepared in 1975 showing the land in suit within the periphery of Khulna Hat and Bazar set aside the judgment and decree of the courts below. The learned Counsel has submitted that compensation assessment roll in respect of the land of the plaintiffs and publication thereof was illegal and that publication of the said illegal assessment roll can no way take away the title of the plaintiffs in the land which is of retainable class of land and that also not within the periphery of Khulna Hat and Bazar. He has also submitted that the sketch map said to have been prepared in 1975 showing land within periphery of Khulna Hat and Bazar is an unauthorised and illegal act of the respondents and, on the basis thereof plaintiffs cannot be deprived of their tenanted land which they are legally entitled to retain. The submission of the learned Counsel as of no merit since preparation of the compensation assessment roll and the publication thereof has the legal presumption that the land claimed by the plaintiffs is of non-retainable class of land and that as on the publication of the compensation assessment roll in the gazetter, the land has vested in the Government the plaintiffs are not entitled to raise any daim in the land and as such, relief sought in the suit was not available to them. Moreover as back as in 1975 the Government prepared the sketch map showing the land in suit within the periphery of Khulna Haat and Bazar and that as it appears the said sketch map has been prepared in the background of the publication of the compensation assessment roll in the gazette the same carries legal weight in arriving at the decision as to the class of land in suit. As in the background of the materials on record the High Court Division has arrived at the finding the Courts below were in error in decreeing the suit, in our view, the finding so arrived at by the High Court Division is once in accordance with law and suffers from so infirmity are illegality.

In the case of Promode Ranjan Shaha Vs. govt. of Bangladesh, 33 DLR 53, it has been held; there are can be no denying the fact that the plaintiffs sought to challenge the acquisition of their Hat and Bazars made under the general notification dated 2.4.56 issued under section 3(1) of the East Bengal State Acquisition and Tenancy Act, and so it is directly hit by Presidents Order No.90 of 1972, which gives a clear mandate of law that notwithstanding anything contained in any other law for the time being in force, on the commencement of the Order, all suits, appeals, applications and of the legal proceedings pending or continuing or deemed to be pending or continuing in any Court against the Government of the Peoples’ Republic of Bangladesh in which the legality of the State Acquisition and Tenancy Act 150 (E.B. Act No. XXVIII of 1951), or of the East Bengal State Acquisition and Tenancy Amendment) Ordinance, 1956 (E.B. Ordinance No.III of 1956) or of any other law making any amendment in the said Act or of the acquisition of any property made under any provision thereof is challenged or called in question shall abate, and all orders, including orders of injunction and other interlocutory orders passed in suits, appeals, applications and other legal proceeding shall cease to have any effect: and no Courts shall entertain and no person shall brings any fresh suit, appeal, application or other legal proceedings in which the legality or validity of any such law or requisition is challenged or called in question.

In the case of Anwara Begum Chowdhurani Vs. Nur Jahan Begum, 27 DLR(AD) 109, it has been held; it appears that mention of the different classes of tenants or occupants has been made in the above quoted provisions of law. It was argued that sub-section (1) of section 24 of the Act clearly indicates that on under-raiyati holding would remain in existence at the time of the preparation of the record-of-rights which would be subsequent to the Notification under section 3 of the Act. Rule 18 provides for the preparation or revision of the record-of-rights on the basis of which the compensation Assessment-roll would be prepared and published and rule 61says that the different classes of tenancies would not cease to exist with publication of the Notification under section 3 of the Act and that entire chain of interests of rent-receivers would be eliminated only after the publication of the Compensation Assessment-roll. Thereafter a Notification would be published under sub-section (2) of section 43 declaring that the compensation assessment-roll in respect of that area had been finally published and after this publication of Notification, the whole of Part V of the Act would come into operation. The sum and substance of the contention of the learned Counsel is that raiyati interest did not cease to exist and that under-raiyat was not upgraded before Part V came into operation. With a view to strengthen his argument the learned Counsel relied on a decision in Afran Ali Sheikh’s case reported in 14 D.L.R.(Dacca)791. It is a Single Bench decision by Idris, J. of the Dacca High Court. The said case was under section 26F of the B.T. Act. In that case the question arose as to whether there was an automatic elevation of under-raiyats to the status of raiyats with effect from 14.4.56 when all rent-receiving interests vested in the Government. The learned Judge held that publication of Notification under section 3 of the Act did not eliminate the different classes of tenancies till publication of the compensation assessment-roll, i.e., till Part V of the Act came into operation. In coming to that decision Idris, J., it appears, relied on an unreported decision by Asir, J., in Civil Revision Case Nos.1129 and 1130 of 1960 of the Dacca High Court. On the authority of the decision of Idris, J. and the provisions of law referred to above, the learned Counsel submitted that pre-emption was not available in the present case to an under-raiyati even if he had occupancy right.

From the aforesaid discussion it appears that plaintiff has no subsisting interest in instituting the suit. The impugned Gazette notification was published under Section 3 of the State Acquisition and Tenancy Act with reference to particular estates, taluks, tenures, holding and tenancies and in respect of all rent receives whose properties were under the management of court of wards Act, 1878. Sub-Section (2a) was enacted and introduced in Section 3 of the Act by ordinance No.111 of 1956. It is after this amendment that general notification dated 2nd April, 1956 were issued district wise in regard to all rent receiving interest which thereafter vested in the government with effect from 14.04.56 in terms of those notification. As such, after 14.4.56 the plaintiff has no right take interest or possession in itself, whatever it has, has under the Government, not of it in any individual form to initiate any proceeding. A title less person has no legal character to initiate any proceeding as such no effective result would be available to the appellant in appeal be admitted on condonation of delay.

In the decision of Santannessa vs. Hapitullah Sarker, 41 DLR (AD)105 it has been held that when no useful purpose will be served in allowing the restoration of appeal and the plaintiff will be driven to fruitless litigation instead of being benefited in any manner if restoration is allowed impugned order does not call for any interference. We have already seen that plaint was rejected, as per provision of order VII rule 11 of the Code of Civil Procedure, as it is barred by law and by framing of issue as per order XIV rule 2 of the Code of Civil Procedure, the learned Judge rejected the plaintiff. Plaintiff as it appears from all the documents produced before us and produced before trial Court, that he has no title, it’s title has been eaten by the Government as per gazette notification of Monday, 24th March, 1952 published under provision of section 3 (1) of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951, as if the appeal be registered on condonation of delay, the plaintiff instead of being benefited in any manner will be driven to a fruitless litigation as it appears the defendants after getting the land from the land owners and also from Government is possessing the same for 50 years.

We find no reason to condone the delay.

In the result, the rule is discharged without any order as to costs.

Ed.