Case No: Writ Petition No. 6948 of 1997
Judge: Md. Ali Asgar Khan,
Court: High Court Division,,
Advocate: M Quamrul Hassan,,
Citation: 52 DLR (HCD) (2000) 67
Case Year: 2000
Appellant: Jamal Hossain (Md.) and others
Respondent: Chairman, 2nd Court of Settlement, Abandoned Buildings, Dhaka and others
Subject: Property Law,
Delivery Date: 1999-05-20
52 DLR (HCD) (2000) 67
High Court Division
(Special Original Jurisdiction)
Mohammad Fazlul Karim, J.
Md. Ali Asgar Khan, J.
Jamal Hossain (Md.) and others
Chairman, 2nd Court of Settlement, Abandoned Buildings, Dhaka and others
May 20, 1999.
Constitution of Bangladesh, 1972
Abandoned Buildings (Supplementary Provisions) Order, 1985
M Quamrul Hassan, Advocate—For the Petitioners.
Not represented—the Respondents.
Writ Petition No. 6948 of 1997
2. The petitioners in the application under Article 102 (2) (a) (i) of the Constitution of the People’s Republic of Bangladesh has contended, inter alia, that the property appertaining to JL No. 82, SA Khatian No.70 and Plot No.554 relating to an area of 0.09 acre (Abandoned Property) House No. 222/73, Jessore) originally belonged to Begum Nessa Bibi wife of late Jalal Ahmed who was a permanent citizen of the then erstwhile Pakistan, subsequently citizen of Bangladesh. The case property which has been declared as abandoned property in the ‘ka’ list of the abandoned buildings as published in Bangladesh Gazette dated 23-9-86 at page 9962 (161) at Serial No. 81 by mistake as the property was rightly recorded in the name of Begum Nessa Bibi in the SA Khatian No.70. Md. Ali Akbar, their predecessor purchased the case property on 13-9-76 by a registered Kabala from Begum Nessa Bibi and after purchase their predecessor constructed thereon four small huts in which they are residing on payment of Municipal taxes. The case property was duly mutated in the name of their predecessor late Md. Ali Akbar and they are paying rent to the government. While they were living peacefully in the case land a notice was served upon their predecessor on 22-12-82 who after receipt of the notice filed an objection before the respondent No.3. Respondent No.3 by its letter dated 3-1-83 rejected the objection filed by their predecessor late Md. Ali Akbar against which their predecessor-in-interest filed case being No.1084 of 1992 before the Court of Settlement, Dhaka and the same was dismissed by its judgment dated 15-9-97 holding the case as have been barred by limitation. The case house does not fall within the mischief of Abandoned Building which violates fundamental right of the petitioner and, as such, they are entitled to get the relief as prayed for wrongful inclusion of the case house as abandoned house. The provisions of President’s Order No. 16 of 1972 is not attracted in respect of the case house in which they are in possession from the time of their predecessor for which the Rule issued by this Court is liable to be made absolute.
3. Mr. M. Quamrul Hassan, learned Advocate for the petitioners has submitted that the petitioners are the heirs of late Md. Ali Akbar and that they are in possession in the case building and, as such, the inclusion of their house in the ‘ka’ list of the abandoned houses is wholly illegal and without lawful authority and is of no legal effect. He has further submitted that in spite of delay in filing the case the petitioners are entitled to protect their fundamental right to hold and enjoy the property as envisaged under the Constitution of the People’s Republic of Bangladesh. Besides this fact the Settlement Court in their judgment also found the inclusion of the case house in the list of abandoned house as illegal.
4. In spite of service of notice upon the respondents no affidavit-in-opposition has been filed denying the assertion of the petitioner made in the application including the possession over the case house.
5. It appears that Begum Nessa Bibi, wife of Jalal Ahmed, was the owner of the case house who sold the same to Md. Ali Akbar, the predecessor of the petitioners and on the death of Md. Ali Akbar the petitioners who are his heirs are in possession of the case house. It further appears that the petitioners filed an application being No.1084/92 before the Court of Settlement but the same was rejected on the ground of limitation holding that the case house is not an abandoned house in which the petitioners are in possession from the time of their predecessor Md. Ali Akbar who purchased the same from Begun Nessa Bibi and owing and possessing the suit land. It further appears that the Court of Settlement in dismissing the case No.1084 of 1992 held after the consideration of the papers filed by the office of the Deputy Commissioner and also the documents of the petitioners that the case house is not abandoned house and that the case house originally belonged to Begum Nessa Bibi who sold the same to Ali Akbar their predecessor, in which they are in possession. From the judgment, it also appears that the prayer of the petitioner for amendment of the petition dated 7-9-97 for reading the name of the vendor of the Kabala as Begum Nessa Bibi instead of Jabun Nessa and that this petition was allowed and taking all the facts into consideration and also the record of the abandoned property including the documents of title of the vendor Begum Nessa Bibi and that of the predecessor of petitioners, the Court of Settlement came to the conclusive finding that the case house is not abandoned property but the Court of Settlement dismissed the case No.1084 of 1992 as the same is found to be barred by limitation by two days.
6. Right to hold property is a fundamental right as guaranteed under Article 42 of the Constitution of the People’s Republic of Treating the property as an abandoned property under President’s Order No.16 of 1972 and including of the same in the list of abandoned house while it does not fall within the mischief of abandoned building/house violates fundamental rights of such a person to hold a property. The petitioners, as it appears, are in possession of the case house from the time of their predecessor Md. Ali Akbar on the basis of purchase from the original owner Begum Nessa Bibi who is the citizen of Bangladesh and, as such, treating the same as abandoned property and inclusion of their house in the Ka list as abandoned house is not only violative of the provision of President’s Order No.16 of 1972 but also violative of the fundamental right to hold property. In such circumstances the petitioners are entitled to get the relief as prayed for in spite of the dismissal of the application by the Court of Settlement on the ground of limitation. As the fundamental rights of the petitioners has been violated, the dismissal of the case on the ground of limitation by the Court of Settlement is no bar to entitle them to challenge the inclusion of the house in the list of abandoned houses in this jurisdiction in protection of their fundamental right.
7. We have found that the case building has been included in the list of abandoned houses contrary to the provision of President’s Order No.16 of 1972 rendering the same without lawful authority and of no legal effect and, as such, the petitioners are entitled to the relief as prayed for as there is merit in this Rule.
8. In view of the facts and circumstances of the case, we find that the inclusion of the case house in the list of abandoned houses as contained in Gazette dated 23-9-1986 at page 9962(161) at serial No.81 of the Gazette Notification is without lawful authority and is of no legal effect.
9. Before parting, we like to observe that the case has been dismissed as barred by limitation holding that the petitioner failed to file the petition within 108 days from the date of publication of the list in the official Gazette as per provision of section 7(1) of the Ordinance No. LIV of 1985. We failed to understand under what reason the period of limitation has been fixed at 108 days. Either it would be one month, three months or six months but section 7(1) has provided the limitation of 108 days which means 3 months 18 days and such period of limitation could nowhere be found in the Limitation Act or in any other special Act providing limitation, this may be through inadvertence or mistake that 180 days has been printed as 108 days. The Ministry of Law, Justice and Parliamentary Affairs shall look into the matter and if it is a mistake in providing limitation of 108 days instead of 180 days, they should come out with an appropriate amendment in the section at the earliest in order to avoid mischief of limitation for wrong printing of the period of limitation in the Ordinance No. 54 of 1985.
10. Let a copy of this order be forwarded to the Hon’ble Ministers for Law, Justice and Parliamentary Affairs and Ministry of Public Works and Urban Development for information at once.
In the result, the Rule is made absolute without any order as to costs.