Khalishpur Housing Estate Vs. Chairman, Land Appeal Board & others, 3 LNJ (AD) (2014) 89

Case No: Civil Appeal No. 47 of 2006

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Rajik-Al-Jalil,Mrs. Nahid Sultana,,

Citation: 3 LNJ (AD) (2014) 89

Case Year: 2014

Appellant: Khalishpur Housing Estate

Respondent: Chairman, Land Appeal Board and others

Delivery Date: 2012-01-25


APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
Md. Shamsul Huda, J.


Judgment on
25.01.2012
  Khalishpur Housing Estate, Khalishpur, Khulna, represented by its Officer, P.S. and District-Khulna.
....Appellant.
     -Versus-
Chairman, Land Appeal Board, Segunbagicha, Dhaka and others.
....Respondents.
 

Public Demands Recovery Act (III of 1913)
Sections 4, 6 and 7
Section 7 of the Public Demands Recovery Act requires that whenever a certificate case is filed in the office of the Certificate Officer under sections 4 or 6, he would cause the notice to be served upon the certificate debtors in the prescribed manner. But the fact remains that the appellant was not a certificate debtor. Admittedly, the certificate debtors were not found in their houses situated on the disputed plots and because of their non-payment of land development tax, their plots were put on sale in public auction. Admittedly, the disputed plots along with the structures standing thereon were sold in auction by the Government and it had the right to do so for non-payment land development tax through the Collector of the District under the provisions of the Public Demands Recovery Act. The appellant is a Government Organization, which did not have the locus-standi to challenge the disputed auction sales held by competent Government officials. Consequently, the writ petition filed by the appellant was a misconceived one. It is important to note that the auction purchasers of the disputed plots stepped into the shoes of the original lessees and they are now bound by the terms and conditions of the agreement for lease executed with the original lessees. The learned Deputy Attorney General could not show any violation of the terms and conditions of any of the agreement for lease with the appellant. . . . (14 to 16)

For the Appellant: Mr. Rajik-Al-Jalil, Deputy Attorney General, instructed by Mr. B. Hossain, Advocate-on-Record. 
For Respondent Nos. 2-5, 7-17, 21, 23, 24, 26, 30-35, 37, 41 and 42: Mrs. Nahid Sultana, Advocate-on-Record.
Respondent Nos. 1, 6, 18-20, 22, 25, 27-29, 36, 38-40, 43-44: Not represented.
 
Civil Appeal No. 47 of 2006
 
JUDGMENT
Syed Mahmud Hossain, J:
 
This appeal, by leave, by the appellant, Khalishpur Housing Estate, represented by its Administrative Officer arises out of the judgment and order dated 24.01.2004 passed by the High court Division in Writ Petition No. 3459 of 2000 discharging the Rule.
 
The facts involved in the appeal, in brief, are as follows:

      The appellant, Khalishpur Housing Estate was established in 1947 to rehabilitate refugees from India, who were allotted plots in the Housing Society for their settlement. After liberation of Bangladesh the allottees of the plots of the Housing Society were not found and as such the said plots were declared abandoned by the Government. But in pursuance of certificate cases filed for recovery of land development tax against the allottees under the Public Demands Recovery Act, some of the plots of the society were sold in auction to different auction purcha-sers, that is, the respondents. The petitioner feeling aggrieved by those auction sales filed Revision Case No. 25 of 1998 under section 53 of the Public Demands Recovery Act before the Deputy Commissioner, Khulna praying for setting aside the auction sales. The Additional Deputy Commissioner (Revenue), Khulna by his order dated 05.04.1993 set aside the auction sales.

Respondent Nos. 2 to 43 thereupon filed Miscellaneous Appeal No. 167 of 1993 before the Divisional Commissioner, Khulna. The Additional Divisional Commissioner, Khulna by judgment and order dated 03.01.1995 dismissed the appeal affirming the order of the Additional Deputy Commissioner. After that, respondent Nos. 2 to 4 preferred further appeal before the Land Appeal Board, Government of Bangladesh. The Land Appeal Board by the judgment and order dated 13.02.1997 allowed the appeal setting aside the orders passed by the Additional Divisional Commissioner, Khulna.

Against the aforesaid orders dated 13.02.1997, the appellant filed a petition for review before the Land Appeal Board which by its judgment and order dated 11.05.1997 rejected the petition of review.

Being aggrieved by and dissatisfied with the order dated 11.05.1997, the appellant thereafter moved the High Court Division in its writ jurisdiction by filing Writ Petition No. 3459 of 2000 and obtained Rule Nisi.
Respondent No.7 filed one set of affidavit-in-opposition. The case of this respondent, in short, is that the owners of plots of land of Mouza-Goalpara (Housing), defaulted in payment of land development tax and as such, on the direction of the Deputy Commissioner, Khulna, vide Memo No. 849/C dated 18.11.1984 advertisement for sale of the concerned plots of land in Khalishpur Housing Estate was made under the provisions of the Public Demands Recovery Act. In response to the said advertisement, respondent No. 7 with other respondents participated in the open bid for auction of the plots and the concerned plots were sold in auction by the Certificate Officer on 16.04.1984 in Certificate Case No. 8 of 1982-83 to the highest bidders. The sale was confirmed on 17.06.1984, sale certificate was issued on 20.09.1984 and the delivery of possession was given in favour of respondent No.7 on 26.09.1984. In this manner, respondent No.7 and other respondents purchased their respective plots of land in auction held by the Certificate Officer for which they made their bids. Therefore, they are not in any way connected either with the original allottees or with the appellant, Khalishpur Housing Estate. The further case of this respondent is that the concerned plots of land were never declared abandoned; rather, the respondents purchased those plots in certificate sales held by the concerned officials of the Government for non-payment of the development tax by the owners of those plots of lands and as such, the appellant never had any claim in respect of the said plots. Consequently, the writ petition is liable to be discharged.

The affidavit-in-opposition filed on behalf of the other respondents also raised similar contentions.   

The High Court Division after hearing the parties discharged the rule by its judgment and order dated 24.01.2004.

Feeling aggrieved by and dissatisfied with judgment and order dated 24.01.2004 passed by the High Court Division, the appellant moved this Division by filing Civil Petition for Leave to Appeal No. 1032 of 2004.  Upon hearing the parties, this Division granted leave on 23.03.2006 resulting in the initiation of Civil Appeal No. 47 of 2006.

Mr. Rajik-Al-Jalil, learned Deputy Attorney General, appearing on behalf of the appellant, submits that the tenants having no authority to sell or dispose of the demised property before construction of building thereon except with the permission of the Government, the purchase of different plots of the Housing Society in auction was violative of the provisions of clause Nos. 19,20,21,22 and 24 of the deed of agreement of lease and the High Court Division erred in law in discharging the rule without considering this aspect of the matter. He further submits that the service of notice as envisaged under section 7 of the Public Demands Recovery Act which is mandatory provision of law having not been complied with the High Court Division erred in law in not making the rule absolute.

Mrs. Nahid Sultana, learned Advocate-on-Record, appearing on behalf of respondent Nos. 2-5, 7-17, 21, 23, 24, 26, 30-35, 37, 41 and 42, on the other hand, supports the impugned judgment delivered by the High Court Division.

We have considered the submissions of the learned Advocates, the impugned judgment and other papers incorporated in the paper book.

The submissions on which leave was granted should be stated at the very outset as under:

Whether the tenants having no authority to sell or dispose of the demised property before construction of the building thereon except with the permission of the Government, the purchase of different plots of the Housing Society in auction were violative of the provisions in clause No. 19, 20, 21, 22 and 24 of the deed of agreement of lease and the High Court Division erred in law in discharging rule without considering this aspect of the matter.

Whether the service of notice as envisaged under section 7 of the Public Demands Recovery Act which is mandatory provision of law having not been complied with the High Court Division erred in law in not making the rules absolute. He further submits that in view of the fact the same Land Appeal Board in Appeal Case No.2-28/97(Khulna) dismissed the appeal of some other alleged auction purchasers and upheld the order of the Additional Commissioner, Khulna setting aside the certificate sales of some of the plots of the Khalishpur Housing Estate, the High Court Division erred in law in discharging the rule without considering that aspect of the matter and without applying its judicial mind.

Whether the lands in question being abandoned properties having vested in the Government of Bangladesh according to the provisions of P.O. 16 of 1972, the auction sales being violative of the provisions of said President’s Order, the High Court Division erred in law in discharging the rule.

We have considered the submissions of the learned Deputy Attorney General, the impugned judgment and the papers annexed to the paper book. Admittedly, the appellant, Khalishpur Housing Estate was established under the Ministry of Housing and Public Works in order to rehabilitate the refugees from India. The designated plots were allotted to the refugees back in 1961 and onwards. But subsequently, after liberation of Bangladesh, many of them were not found in their houses situated on those plots. Subsequently, land development tax for those plots was not paid to the Government. For realization of rents accrued against those plots, the revenue officials of the Government arranged for sale of those plots by public auction pursuant to the decision of the Deputy Commissioner, who was also the Collector of the District. In response to the offers, respondent Nos. 2-43, being the highest bidders, purchased those plots in public auction and obtained possession thereof from the concerned Government officials. There is nothing on record to show that the Certificate Officer, who conducted the sale, did not have the authority to do so. The objection of the appellant is that the provisions of section 7 of the Public Demands Recovery Act relating to issuance of notice were not complied with. Section 7 of the Public Demands Recovery Act requires that whenever a certificate case is filed in the office of the Certificate Officer under sections 4 or 6, he would cause the notice to be served upon the certificate debtors in the prescribed manner. But the fact remains that the appellant was not a certificate debtor. Admittedly, the certificate debtors were not found in their houses situated on the disputed plots and because of their non payment of land development tax, their plots were put on sale in public auction. In addition to above, the certificate debtors could raise objection in this respect and not anybody else. Therefore, the objection raised on behalf of the appellant, which is, admittedly, not a certificate debtor is not maintainable. The appellant could not show that any charge or dues had fallen outstanding against any of the disputed plots. The appellant contends that the terms and conditions of the deed of agreement for lease were violated. In this regard, the High Court Division came to a finding that the appellant could not provide any of the original agreement for lease which was executed by the then Government of East Pakistan and the concerned lessors or allottees, who were refugees from India. The High Court Division further found that it examined the proforma copy of an agreement for lease annexed to the writ petition as Annexure-E but could not find violation of any of the terms and conditions of the lease.

Admittedly, the disputed plots along with the structures standing thereon were sold in auction by the Government and it had the right to do so for non-payment land development tax through the Collector of the District under the provisions of the Public Demands Recovery Act.

There is no gainsaying the fact that the appellant, Khalishpur Housing Estate, was established under the Ministry of Housing and Public Works to rehabilitate the refugees from India. Therefore, the appellant is a Government Organization, which did not have the locus-standi to challenge the disputed auction sales held by competent Government officials. Consequently, the writ petition filed by the appellant was a misconceived one. It is important to note that the auction purchasers of the disputed plots stepped into the shoes of the original lessees and they are now bound by the terms and conditions of the agreement for lease executed with the original lessees. The learned Deputy Attorney General could not show any violation of the terms and conditions of any of the agreement for lease with the appellant.

The findings arrived at and the decision made by the High Court Division are based on proper appreciation of law and facts and do not call for interference. Therefore, we do not find any substance in this appeal.

        Accordingly, the appeal is dismissed without any order as to costs.

         Ed.