Md. Ajmal Hossain Khan and others Vs. Government of Bangladesh and others 2017 (1) LNJ 88

Case No: Writ Petition No. 2455 of 2013

Judge: Syed Refaat Ahmed. J.

Court: High Court Division,

Advocate: Dr. Chowdhury Israk Ahmed Siddiky, Md. Shahidul Islam,

Citation: 2017 (1) LNJ 88

Case Year: 2015

Appellant: Md. Ajmal Hossain Khan and others

Respondent: Government of Bangladesh and others

Subject: Writ Petition

Delivery Date: 2017-03-11

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Refaat Ahmed , J

And

Md. Hajangir Hossain, J

Judgment on

23.04.2015

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Md. Ajmal Hossain Khan and others

. . . Petitioners

-VERSUS-

Government of Bangladesh and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 102(2)(a)(ii)

Concomitantly, the parties in these proceedings are governed by the reality of the pendency of the Title Suit No. 98 of 2010 as is found in the facts and circumstances to be stemming from the judicial dispensation evidently granted by the Appellate Division on 9.6.2010 in CRP No. 137 of 2008. Accordingly, it is the finding of this Court that the Impugned Memo issued wholly within the context of this Court’s judgment in Writ Petition No. 5039 of 2010 and within the limited parameter of judicial consideration in that case does not permit of being struck down as being illegal and without lawful authority. Given, however, the fact of the pendency of Title Suit No. 98 of 2010 falling within an apparent legal cover provided under the Appellate Division’s Order of 9.6.2010, this Court, by way of limited intervention, directs for the effect of the notice in the Impugned Memo to be held in abeyance or suspension up until such time that Title Suit No. 98 of 2010 is substantively and finally disposed of. This does not detract from this Court’s earlier view that the Petitioners may have given the Appellate Division’s Order too strained an interpretation in instituting this suit in the first place.          . . . (29 and 30)

52 DLR (AD) Page-49; 44 DLR (AD) Page-242; 49 DLR Page-296; 53 DLR Page-12; 4 MLR Page-417 and 20 DLR SC Page-16 ref.  

Mr. Ehsan A. Siddiq, Advocate with

Mr. Chowdhury Ishrak Ahmed Siddiky, Advocates.

… For the Petitioners

Mr. Md. Shahidul Islam, D.A.G

.... For the Respondents.

JUDGMENT

Syed Refaat Ahmed, J. This Rule Nisi was issued calling upon the Respondents to show cause as to why the Memo No. 05, 30,6100,024,46, 010, 12-228 dated 11.02.2013 (received on 12.02.2013) issued by the respondent No. 2 (the Deputy Commissioner, Mymensingh), under Eviction Case No. 108 (XIII) 09-10 (Eviction Case No. 108 (XIII) 09-10) (Annexures-A, A(1) and A(2)) shall not be declared to have been made and  issued without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this court may seem fit and proper. Pending hearing of the Rule, the parties were directed to maintain status quo in respect of possession and position of the case property.

2.            The relevant facts, in brief, for disposal of this Rule, are that the Petitioners have challenged the legality of the Impugned Memo No. 05.30.6100.024.46.010.12-228 dated 11.02.2013 issued by the Respondent No. 2, Deputy Commissioner, Mymensingh under Eviction Case No. 108(X111)09-10 directing the Petitioners to vacate the scheduled property within thirty days receipt of the same. The same impugned Memo was issued to all three of the Petitioners and was received by all of them on 12.02.2013. It is contended that the Impugned Memo has been issued by the respondent No. 2 in violation of section 5(1) of the Government and Local Authority Lands and Building (Recovery of Possession) Ordinance, 1970 (“Ordinance”). Under section 5(1) of the Ordinance, the Petitioners argue, a notice of eviction may only be issued where the persons(s) in question is/are ‘unauthorised occupant(s)’. Reliance is head of the principle of law that where there is a bona fide dispute with regard to the land in question, then the persons in possession cannot be regarded as ‘unauthorised occupants’. In the facts and circumstances of the case the petitioner Nos. 1, 2 and 3 as plaintiff Nos. 5, 15 and 23 respectively have instituted Title Suit No. 98 of 2010 for a declaration of title in relation to the schedule property against the Government. This Title Suit is pending before the First Court of Joint District Judge, Mymensingh. The Government is contesting the Title Suit by filing a Written Statement. Moreover, an application for temporary injunction for restraining the Government from dispossessing the Petitioners from the schedule property is also pending in the aforesaid Title Suit. As such there is contended to be a bona fide dispute in relation the schedule property. Hence, the Petitioners’ position that they are not unauthorised occupants and, therefore, the impugned Memo has been issued without lawful authority and is of no legal effect. 

3.            On 02.08.1978 one Md. Muslem Uddin, the predecessor of the Petitioners instituted Title Suit No. 251 of 1978 in the First Court of Subordinate Judge, Mymensingh alleging that he had acquired right and title over the schedule property by inheritance from his father who in turn had taken patta from Akshay Kumar Ghosh, Madhusudhan Ghosh, Anath Bandhu Ghosh, and others. The predecessor of the Petitioners also prayed for a direction in Title Suit No. 251 of 1978 upon the concerned Tahsilder to record the schedule property in his favour. The First Court of Subordinate Judge, Mymensingh decreed the suit in favour of the predecessor of the Petitioners (i.e. Md. Muslem Uddin) on 26.11.1981.

4.            On an appeal, being First Appeal No. 67 of 1982, the High Court Division was pleased vide its judgment and order dated 11.07.1991 to allow the appeal and set aside the judgment and order of the First Court of Subordinate Judge, Mymensingh. It is contended that Md. Muslem Uddin, however, suppressed the decision of the High Court Division from the Petitioners and that the Petitioners had no knowledge of Title Suit No. 251 of 1978 or of the First Appeal No. 67 of 1982. The Petitioners ostensibly, therefore, purchased the schedule property in good faith from vendors who in turn had purchased from Md. Muslem Uddin.

5.            The Petitioners remained in peaceful possession of the schedule property until 2006. The Petitioners learned about the Title Suit No. 251 of 1978 and the subsequent First Appeal No. 67 of 1982 when the Assistant Commissioner of Land cancelled the mutation in favour of Md. Muslem Uddin. On 27.11.2007, the present Petitioners filed Civil Petition for Leave to Appeal No. 1768 of 2007 before the Appellate Division. However, the Leave Petition being out of time by 5,886 days the same was dismissed on 14.07.2008 being barred by limitation.

6.            Thereafter the Petitioners filed an application for review being Civil Review Petition No. 137 of 2008 before the Appellate Division. During the hearing of the Civil Review Petition it was argued that the Petitioners had no knowledge of the suit filed by Md. Muslem Uddin and as such they were not able to contest in the suit or appeal. Moreover, because of the suppression of Md. Muslem Uddin, the Civil Petition for Leave to Appeal of the Petitioners was out of time by 5,886 days. The Appellate Division was pleased vide its Judgment and Order dated 19.10.2009 to dismiss the Civil Review Petition but with an observation that the Petitioners would be at liberty to file fresh suits for securing their title and rights. However, when the certified copy of the Judgment and Order of the Appellate Division in Civil Review Petition No. 137 of 2008 was obtained on 06.06.2010, it was discovered that there was no such observation. As such an application for modification was filed.

7.            In such situation the Petitioner No.3 and another inhabitant of the schedule property filed a Writ Petition being No.5039 of 2010 challenging the legality of the Memo of Eviction dated 13.06.2010. Upon moving the Writ Petition No. 5039 of 2010, Rule was issued and the operation of the Memo of Eviction dated 13.06.2010 was stayed. At the time of final hearing of the Writ Petition on 10.01.2013, it was argued that under section 5 (1) of the Ordinance, thirty days notice was required to be given prior to eviction. However, the Respondents had admittedly only given three days. It was also argued that the Respondent No. 3, Assistant Commissioner (Land), had no authority under the Ordinance to issue the Memo of Eviction. After hearing both the parties the High Court Division was pleased vide its Judgment and Order dated 10.01.2013 in Writ Petition No. 5039 of 2010 to make the Rule Absolute. As such the Memo of Eviction dated 13.06.2010 was declared to be without lawful authority and of no legal effect.

8.            On 01.07.2010 (considerably before the disposal of the Writ Petition No. 5039 of 2010), the Petitioners and 25 other inhabitants of the schedule property as plaintiffs had instituted Title Suit No.98 of 2010 before the First Court of Joint District Judge, Mymensingh against the (1) Government of Bangladesh (2) the Deputy Commissioner, Mymensingh, (3) the Additional Deputy Commissioner (Revenue), Mymensingh and (4) the Assistant Commissioner (Land) Sadar, Mymensingh. In the Title Suit it was averred that the Petitioners (who were plaintiff Nos.5, 15 and 23) and the other plaintiffs were the lawful owners of the schedule property. The chain of title over the last sixty years was averred in detail. It was averred that the Petitioner No.1 (i.e. plaintiff No.5 in the suit) had bought his land in Dag No. 48 of the schedule property from one Abdul Khaleque vide Registered Deed No. 677 dated 10.01.1991. Abdul Khaleque in turn had bought the land from Muslem Uddin vide registered Deed No. 4972 dated 15.02.1982. Muslem Uddin, who had obtained a patta from the Zaminder Shri Shashikanta Acharya Chowdhury Bahadur in the Bagali Year 1351.

9.            It was also averred in Title Suit No. 98 o 2010 that the petitioner No.2 (i.e. plaintiff No.15 of the suit) had bought his land in Dag No. 49 of the schedule property from Lutfor Rahman Babul vide registered Deed No. 3554 dated 21.11.1982. Lutfor Rahman Babul in turn had bought the land from Abdul Khaleque vide registered Deed No. 4331 of 09.02.1983. Abdul Khaleque had bought the land from Rajib Ali and Mifiz Uddin vide registered Deed No. 10077 dated 13.02.1982. Rajib Ali and Mofiz Uddin had both bought lands from Muslem Uddin vide Deed Nos. 4977 and 4974 respectively. Muslem Uddin had inherited this land from his father who in turn had obtained a patta from Akshay Kumar Ghosh, Shree Madhusudhan Ghosh and Shree Anath Bandhu Ghosh in the Bengali year 1351.

10.        The Petitioner No.3 (plaintiff No.23 in the suit) had bought his land in Dag No.49 ( in the schedule property) from on Nizam Khan vide registered deed No. 5669 dated 26.06.2004 who in turn had bought it from one Momjan Bibi vide registere deed No. 10138 dated 20.07.1988. Momjan Bibi had bought the land from Muslem Uddin vide a registered deed No. 23017 dated 21.11.1982. Muslem Uddin had inherited this land from his father who in turn had obtained a patta from Shri Akshay Kumar Ghosh, Shree Madhusudhan Ghosh and Shree Anath Bandhu Ghosh in the Bengali year1351.

11.        On 30.05.2011, the Additional Deputy Commissioner Mymensingh filed a Written Statement in Title Suit No. 98 of 2010.

12.        It may be mentioned here that sixty-five other inhabitants of the schedule property also filed a Title Suit being No. 110 of 2010 against the Government and others in First Court of Joint District Judge, Mymensingh for a declaration as to their title in the shchedule land. A written statement has been filed in Title Suit No. 110 of 2010 by the Additional Deputy Commissioner (Revenue), Mymensingh. The claims in Title Suit No. 98 of 2010 and 110 of 2010 are consistent and not contradictory.

13.        On 12.01.2012, the Petitioners filed an application for temporary injunction under Order 39, Rules 1 and 2, read with Section 151 of the Code of Civil Procedure to restrain the Government and other defendants in Title Suit No. 98 of 2010 from dispossessing them. After filing the application the First Court of Joint District Judge, Mymensingh was pleased vide its Order No. 13 dated 12.01.2012 to issue a show cause notice upon the Government and other defendants in Title Suit No. 98 of 2010 as to why and order of temporary injunction should not be granted.

14.        The Government filed a written objection against the application for temporary injunction on 08.03.2012. While the Title Suit was so pending, the Respondent No. 2 Deputy Commissioner, Mymensingh issued the Impugned Memo No. 05.30.6100.024.46. 010 .12-228 dated 11.02.2013 under Eviction Case No. 108 to the Petitioners, directing them to vacate the schedule property within thirty days receipt of the Impugned Memo. The Impugned Memo was issued under section 5(1) of the Ordinance. Although reference was made in the Impugned Memo to the Judgment in Civil Review Petition No. 137 of 2008 and Writ Petition No. 5039 of 2010, no reference is made to Title Suit No. 98 of 2010 pending before the First Court of Joint District Judge, Mymensingh. It is averred by the Petitioners that the Respondent No. 2 has, therefore, suppressed the fact that the Petitioners have a bona fide claim to the schedule property. It is also asserted that the Respondent No. 2 has not indicated whether an inquiry, if any, was conducted by him in order to satisfy himself of the unauthorised nature of the Petitioners’ occupancy or indeed of the pendency of Title Suit No. 98 of 2010.

15.        Predicated on the above, the Petitioners submit that they have no other efficacious remedy but to file the present Writ Petition given further that they are barred under Section 11 of the Ordinance from seeking a remedy before the civil courts. Moreover, the actions of the Respondents in issuing an eviction notice without satisfaction of the unauthorised occupancy of the Petitioners being in violation of the Ordinance, the Petitioners emphasize, justify further the filing of this Writ Petition.

16.        Mr. Ehsan A. Siddiq, the learned Counsel appearing for the Petitioners, submits that given that the Petitioners filed Civil Suit before the First Court of Joint District Judge, Mymensingh, which is being contested by the Government, there is reflected therein a bona fide dispute as to the title of the schedule property and the Petitioners therefore during the pendency of such suit cannot be regarded as “unauthorised occupants”. Accordingly, the Impugned Memo No. 05.30.6100.024.46.010 .12-228 dated 11.02.2013 (received on 12.02.2013) issued by the Respondent No. 2 is argued to be without lawful authority and of no legal effect.

17.        Respondent Nos. 1-3 have submitted an Affidavit-in-Opposition. Mr. Md. Shahidul Islam, the learned Deputy Attorney General, in opposing the Rule submits that Respondent No. 2 acted lawfully to send the notice to the Petitioners who are unauthorized occupants of the suit land and as such the Impugned Memo is quite lawful from which legal effect does indeed ensue.

18.        The Respondents argue that the Petitioners are occupying illegally the suit land and trying to illegally grab Government property as the property is Khatian No. 1 khas land absolutely belonging to the Government. It is emphasized in this regard that the Impugned Memo has been issued against the backdrop of this Court’s earlier Judgment and Order in Writ Petition No. 5039 of 2010 that recognized the authority and capacity of “Deputy Commissioner, Mymensingh to evict the petitioners by issuing proper notice in accordance with aforesaid provision of law”, a fact that the Petitioners have suppressed in the present case. As such the Respondents argue that this Rule as well as Writ Petition is liable to be discharged. Mr. Islam further submits that the instant Writ Petition is not maintainable in the eye of law as because the impugned memo is appealable under section 10 of the Ordinance. He argues that the Petitioners’ challenge mounted through this Writ Petition against the Impugned Memo is totally groundless and a dilatory tactic devised to harass the Respondents only. Mr. Islam emphasizes that the Appellate Division’s modification Order in Civil Review Petition No. 137 of 2008 of 09.06.2010 to the effect that “the petitioners may seek proper remedy in proper forum in accordance with law” has been erroneously interpreted by the Petitioners. That error is reflected in filing of the new Title Suit being No. 98 of 2010 as is barred by res judicata.

19.        We have carefully perused the Writ Petition and Affidavit-in- Opposition and scrutinised the annexures submitted by both the parties.

20.        It is evident that the Petitioners have placed much stress on the Appellate Division’s Order incorporating the observation “However the petitioners may seek proper remedy in proper forum in accordance with law.”

21.        We are of the view that in the above facts and circumstances such modification Order was not indeed a direction to the Petitioners to positively file a suit to establish their entitlement afresh.

22.        It appears that the Petitioners’ predecessor Md. Muslem Uddin instituted Title Suit No. 251 of 1978 and he lost his case up to the Apex Court. It transpires that the total schedule land recorded in the name of Government as Khas Khatian and BRS plots were recorded in the name of Government which is represented by the Deputy Commissioner, Mymensigh. Petitioners purchased the said land and registered their deeds during the pendency of suit of filed by their predecessor who was eventually found to have no right and title over the suit land. 

23.        In the above fact and circumstances, the Petitioners having stepped into the shoes or position of their predecessor Md. Muslem Uddin cannot be said to have acquired a better title than such predecessor.

24.        It is against that backdrop that the Deputy Commissioner issued the Impugned Memo as per this Court’s Order in Writ Petitioner No. 5039 of 2010. 

25.        The learned Advocate for the Petitioners has referred to 52 DLR (AD) Page-49, 44 DLR (AD) Page-242, 49 DLR Page-296, 53 DLR Page-12, 4 MLR Page-417, 20 DLR SC Page-16 and some other cases also as predominantly deal with the principle of bona fide dispute and illegal occupancy. In that context this Court finds that:

(i)            the predecessor of the Petitioners had failed to establish his right and title over the suit land, and, thereafter, the Petitioners also failed up to the Appellate Division to establish their claim;

(ii)          it is crystal clear that the suit property never belonged to the predecessor of the Petitioners;

(iii)        the chronology of fact and records show that the property always belonged to the Government and the Petitioners’ predecessor was an illegal occupant and had no right and title over the suit property which was also decided by the Apex Court; and that

(iv)       in such circumstances such predecessor Md. Muslem Uddin had falsely sold the said property to the Petitioners who purchased and registered the said land without due diligence and examining the records of the property as well as the right and title to the property.

26.        It is also the case that the Judgment in Writ Petition No. 5309 of 2010 was the product of facts and issues specifically raised by the parties hereto including the present Petitioner No. 3 as petitioner no.1 in the earlier proceedings. Notably, therefore, the Judgment in Writ Petition No. 5039 of 2010 resulted from deliberation in which the filing of Title Suit No. 98 of 2010 during the pendency of that Writ Petition appeared to have been suppressed. We cannot but hold that there was primarily the obligation of the Petitioners in Writ Petition No. 5039 of 2010 and as plaintiff in Title Suit No. 98 of 2010 to duly inform this Court of the same in those earlier proceedings. It necessarily follows that had this Court in Writ Petition No. 5039 of 2010 been apprised of a filing and pendency of Title Suit No. 98 of 2010 its finding and ultimate decision would in all likelihood have been otherwise. Avoiding, however, the risk of pure speculation in this regard the Judgment of Writ Petition No. 5039 of 2010 in making the Rule absolute and requiring the Deputy Commissioner, Mymensingh to evict the Petitioners issuing proper notice in accordance with relevant provisions of law clearly predicated such finding on the declared and judicially endorsed status of the Petitioners as unauthorized occupants. A reading of that Judgment and Order of 10.1.2013 attests to the fact that the issues raised by the Petitioners themselves convinced this Court on available facts of such unauthorized status of the Petitioners. It is predicated on that and as expressly declared in the Impugned Memo itself that the Impugned Memo of 11.2.2013 squarely confining itself within the terms of that Judgment and Order appeared to have been issued. Given these circumstances we are unable to find on the absolute illegality and arbitrariness of the Impugned Memo as otherwise submitted on by the Petitioners to this Writ Petition.

27.        However, there is the other unavoidable competing aspect to the Petitioners’ case comprising of facts issues and series of litigations as were deliberated upon until these came to be placed before the Appellate Division in Civil Review Petition No. 137 of 2008 arising out of CPLA No. 1768 of 2007 that show the summary disposal of appeal on grounds of delay. CRP No. 137 of 2008 having been dismissed by a Judgment of 19.10.2009 as being without any substance came, however, to be revisited by the Appellate Division in 9.6.2010. Further to an application for modification of the Order dated 19.10.2009 addressing an inadvertent omission in the initial Review Order, the Appellate Division inserted an observation allowing for the Petitioners to seek a proper remedy in a proper forum in accordance with law.

28.        It is the Petitioners’ claim now that this special dispensation given by the Appellate Division constitutes in fact a legal sanction at least for them to pursue afresh their claim before a proper forum which has materialized eventually in the form of Title Suit No. 98 of 2010. It has been submitted that the pendency of the Title Suit No. 98 of 2010 has in the bare minimum the aspect of deterring the Petitioners to be identified as unauthorized occupants of the disputed land that in turn equips them with a legal protection available under Section 5 the Ordinance. That protection, it has been submitted, is one of having an undisturbed possession of the land till the dispute in Title Suit No. 98 of 2010 is substantially resolved one way or the other.

29.        Based on these findings and observations above, this Court finds itself disinclined to interfere with the Impugned Memo in the manner as prayed for by the Petitioners. Concomitantly, the parties in these proceedings are governed by the reality of the pendency of the Title Suit No. 98 of 2010 as is found in the facts and circumstances to be stemming from the judicial dispensation evidently granted by the Appellate Division on 9.6.2010 in CRP No. 137 of 2008. Accordingly, it is the finding of this Court that the Impugned Memo issued wholly within the context of this Court’s judgment in Writ Petition No. 5039 of 2010 and within the limited parameter of judicial consideration in that case does not permit of being struck down as being illegal and without lawful authority.

30.        Given, however, the fact of the pendency of Title Suit No. 98 of 2010 falling within an apparent legal cover provided under the Appellate Division’s Order of 9.6.2010, this Court, by way of limited intervention, directs for the effect of the notice in the Impugned Memo to be held in abeyance or suspension up until such time that Title Suit No. 98 of 2010 is substantively and finally disposed of. This does not detract from this Court’s earlier view that the Petitioners may have given the Appellate Division’s Order too strained an interpretation in instituting this suit in the first place. 

31.        The parties are, hereby, directed to apprise the Trial Court of the fact of the disposal of this Writ Petition with a view to a due revival of the Title Suit proceedings and an expeditious disposal of the same upon receipt of due cooperation of all parties concerned within a period of 6(six) months from date of receipt of certified copy of this Judgment and Order.

32.        In the result, the Rule is disposed of with the findings and observations above.

33.        Let a copy of the Judgment be sent to the relevant court concerned. The Impugned Order shall be kept in abeyance in a state of suspension until such time as Title Suit No. 98 of 2010 is disposed of by a final Judgment and Decree.

         There is no Order as to costs.

Ed.