Case No: Writ Petition No. 95 of 2000.
Judge: Syed JR Mudassir Hussain ,
Court: High Court Division,,
Advocate: Dr. Kamal Hossain,Shah Khasruzzaman,Md Asaduzzaman,,
Citation: 53 DLR (2001) 35
Case Year: 2001
Appellant: Meridian International (Pvt) Ltd and another
Respondent: Rajdhani Unnayan Kartipakha (RAJUK) and others
Subject: Property Law,
Delivery Date: 2000-07-12
53 DLR (2001) 35
High Court Division
(Special Original Jurisdiction)
Syed JR Mudassir Hussain J
Md. Arayesuddin J
Meridian International (Pvt) Ltd and another …………………………...Petitioner
Rajdhani Unnayan Kartipakha (RAJUK) and others......................Respondents
July 12, 2000.
Building Construction (Amendment) Act (XII of 1987)
The whereabouts of the owner being well known issuance of notice to the owner is absolutely the correct procedure and is a constructive notice to the occupier.
Constitution of Bangladesh, 1972
No relationship of landlord and tenant having existed now petitioners are in illegal occupation. Hence, they have no locus standi to invoke writ jurisdiction of the Court.
Cases Referred To-
Abdus Sattar (Md) Vs. Bangladesh and others 48 DLR (AD) 1996; Anwar Au (Md) Vs. Chairman, Rajdhani Unnayan Kartipakha (RAJUK) and others 44 DLR 515; Abdus Sattar (Md) Vs. Bangladesh and others 48 DLR (AD).
Dr Kamal Hossain with Ramjan Ali Sikder, Advocates—For the Petitioners.
Shah Khasruzzaman with MA Mannan, Advocates—For Respondent Nos. 1 & 2.
Md Asaduzzaman, Advocate—For Respondent No.4.
Writ Petition No. 95 of 2000.
2. The facts as stated in the writ petition, in short, are that, the petitioners took a lease of 2(two) storied building located at House No. 23 Road No. 24 Gulshan- 1 Dhaka by a deed of lease dated 26-7-1993 from its owner Mahmudul Alam, the respondent No. 4, for a period of 3(three) years with effect from 1-8-1993 at a monthly rental of Taka 50,000.00 and on payment of Taka 7,20,000.00 as advance.
3. After the expiry of the said tenancy agreement, the tenure of lease was extended for another 3 (three) years with effect from 1-8-1996 fixing an enhanced monthly rent of Taka 60,000.00 and also on payment of Taka 8,64,000.00 as advance.
4. The petitioners’ further Case is that an oral agreement was concluded between the parties on 1-9-1999 that the lease period would be extended for a further period of 3 years. Though the period of oral lease was extended for a further period of 3 years, the respondent No. 4 started non-cooperation with the petitioner No. 2 and tried, on several occasions, to disturb the petitioners’ peaceful possession of the house for which the petitioners’ had to file Title Suit a No. 193 of 1999 seeking a decree of permanent injunction restraining the respondents from disturbing the petitioners possession. The petitioners offered rent to the respondent No. 4 but it was refused and they in order to avoid for their being treated as defaulters, sent monthly rent to the respondent No.4 by money order but the same was returned unsaved. The petitioners then filed House Rent Control Case No. 10 of 1999 in the Court of Assistant Judge, Dhaka and obtained an order to allow the petitioners No.210 deposit the rent to the Rent Controller and he has been depositing the rent.
5. The respondent No. 2, the Authorised Officer, RAJUK issued the impugned notice dated 22-11-1999 (Annexure-E) to the respondent No.4 the owner of the house endorsing a copy to the occupier the petitioner No. 2, directing him the Landlord that his approved plan has been cancelled and the said owner was directed to demolish the building within 3(three) days from the receipt of the same otherwise RAJUK will do the same and the costs of demolition would be recovered from him and similarly, the petitioner No. 2 was also directed by the respondent No. 2 for such demolition of the building within the notice and failing which the RAJUK will arrange the act of demolition of the building and the costs for demolition would be recovered from him as a occupier of the house; that on receipt of the said impugned order the petitioner by Annexure-I served a telegraphic demand of justice on 27-12-1999 but no reply was received and thereby the tenant petitioners being aggrieved by the said notice dated 22-11.1999 Annexure-E, moved this Court on 4-1-2000 and obtained the present Rule.
6. Both the RAJUK respondent No. 1 and the respondent No. 4 the landlord, opposed the Rule by filing two separate affidavits-in-opposition.
7. The respondent No.1 RAJUK denying material statements of the writ petitioners contended that the writ petition is not maintainable on the ground that they are not the aggrieved persons under Article 102 of the Constitution. The respondent No.1 has further contended that the house in question is a residential abode and cannot be an office of the petitioner No. 2 as he has no trade licence on the said address; his trade licence shows that his business office has been registered in the address of Motijheel area and his recruiting office was also registered at Fakir pool. The respondent No.1 has not authorised the respondent No. 4 to give any lease other than the mandate given to the owner of the house by the lease agreement with RAJUK and any such agreement with the respondent No. 4 is illegal and has no basis.
8. The respondent No. 1 has further contended in their affidavit that the respondent No.1 issued show cause notice upon the respondent No. 4 (owner of the house) on 28-7-1999 and 6-9-1999 (vide Annexure-1-A and 1-B) of said affidavit with regard to his unauthorised construction under the provision of Building Construction (Amendment) Act, 1987 but the respondent No. 4 made no reply. The respondent No. 4 was thereafter given another notice dated 19-10-1999 (vide Annexure 1-C of the affidavit) giving him one month’s time for filing an appeal to the RAJUK authority but the respondent No. 4 (the owner) neither filed any appeal nor removed the unauthorised construction in his plot.
9. In such view of the matter section 3(A) (2) of the Building Construction Act, 1952 is applicable to respondent No. 4 but not applicable to the Case of the petitioners who are neither the owners nor person in charge of the Land or Building. But even then the petitioners were given notice to vacate the land as far back as in the year 1997 as has been admitted in the petition by the petitioners. It has been further stated that the respondent No.1 published a list on 10-10-1997 in the Daily Ittefaq regarding the unauthorised construction in the Gulshan, Banani residential area and in that list name of the respondent No. 4 as the owner of the premises was mentioned in serial No. 16 therein and this clearly shows that the petitioners and the respondent No. 4 were given enough time to remove the unauthorised construction. In the above circumstances this writ petition is misconceived and the Rule is liable to be discharged.
10. The respondent No. 4, the owner of the premises, being the most interested party was allowed to file an affidavit-in opposition and this respondent No.4 in his affidavit-in-opposition stated that the writ petitioner No. 2 has no trade licence of his business in the address of the house concerned. The trade licence shows that petitioner’s office has been registered in the address of Motijheel and his recruiting office has been registered in the address of Fakirapool area. This respondent has no concern regarding the business of the petitioner No. 2.
11. With regard to the terms of the lease agreement dated 18th July 1996 (Annexure-D) to the writ petition it is stated that the respondent No. 4 did not authorise the petitioner to do any sort of construction or decoration. By clause 6 of the said agreement the petitioners were only required to make such minor repairs and execute maintenance works which shall be necessary to keep the said premises in good condition; and by clause 7 thereof, the petitioner No. 2 is not permitted to make any addition or alteration in the structure of the building without prior written consent of the lessor-respondent No. 4. The respondent No. 4 never authorised the petitioners to do such interior decorations and make any expenses being made if, at all done, are without any authority of the respondent No. 4 and as such, those are illegal acts and without any basis. Before the expiry date of the said tenancy agreement vide (Annexure-D) being on 1-9-1999, this respondent gave final notice to vacate his house within July, 1999 and there is no question of any oral agreement on 1-9-1999 for extension of lease for a further period of 3(three) years from the date. The respondent No. 4 requires the house for his own purpose and accordingly, he served notice on 15-4-1999 to vacate the suit premises (vide Annexure-4 of the affidavit) wherein it was categorically stated that no further extension under any circumstances is possible beyond 30-7-1999. Regarding the suit filed by the petitioner No. 2 it is stated that the said suit for injunction was dismissed on 31-8-1999. It is further stated that writ petition is misconceived and the grounds taken therein are not tenable in law and the Rule is liable to be discharged.
12. The petitioners replied to the affidavit-in opposition of respondent Nos. 1 and 4 and they mostly reiterated what they stated and submitted in the writ petition.
13. Dr Kamal Hossain, the learned Counsel appearing with Ramjan Ali Sikder, Advocate, for the petitioner has taken us through the writ petition affidavit-in-opposition and the replies thereto and thereafter submitted that the impugned order is without lawful authority inasmuch as section 3(A)(2) of the Building Construction Act, 1952 which requires the service of notice upon the occupier or person-in charge of the land or building giving six months’ time before the effect is given to the order of discontinuance of such use and twelve months’ time before effect is given to the order of removal or dismantlement of the building but in the present Case no such notice was issued and served upon the petitioners, therefore, the impugned order being without lawful authority cannot be maintained in law.
14. It has been further submitted that the impugned order is illegal as it violates the fundamental right of the petitioner as guaranteed under Articles 31, 40 and 42 of the Constitution.
15. Ramjan Ali Sikder, the learned Advocate appearing for the petitioners, submitted that the impugned order is without lawful authority inasmuch as section 3(B) of the Building Construction Act requires a show cause notice directing the owner, the occupier and the person-in charge of the building to remove or dismantle the building but in this Case no such notice was issued and served on the petitioners and, as such, the impugned order suffers from legal infirmity and cannot be sustained in law.
16. Shah Khasruzzaman, the learned lawyer for the RAJUK, the respondent No. 1, having referred to the relevant Annexures of their affidavit-in-opposition contended that regarding unauthorised construction made on the building the respondent No. 1 issued show cause notice upon the owner of the house (respondent No. 4) on 28-7-1999 (Annexure-A) and on 6-9-1999 (Annexure-1B) as per provision of the Building Construction (Amendment) Act, 1987. But the said respondent No. 4 did not reply to the aforesaid notices. It is further contended that with regard to construction of unauthorised structures on the building, the respondent No. 1 also served another show cause notice on 19-10-1999 (Annexure C) upon the said owner of the house giving him one month’s time for filing an appeal. But the respondent No. 4 (owner of the house) neither field any appeal nor removed such unauthorised construction. In view of above factual aspect the case, it is argued by the learned lawyer of RAJUK that the petitioners are neither the owners of the house nor the persons in-charge of the land or building and, as such, the provision of section 3(A)(2) of the Building Construction Act, 1952 is not applicable. Khasruzzaman has further submitted that the respondent No.1 published a list on 10-10-1997 in the daily Ittefaq against the owners of the building in Gulshan and Banani residential area regarding their unauthorised construction and the name of the respondent No.4 as owner of the premises appeared at serial No. 16 in the said list (vide Annexure-4) and in such view of the matter the petitioner No.2 has nothing to feel aggrieved by the impugned order and has no locus standi to file this writ petition for want of cause of action.
17. The learned lawyer for RAJUK has further argued that it is the petitioner No.2 who had already made unauthorised construction without the consent of the owner of the house and also without any approval of the concerned authority. To substantiate his above arguments the learned lawyer for RAJUK has drawn our attention to the Annexure-1 and 2 of the affidavit-in-opposition filed by the respondent No.4 wherein it appears from Annexures 1 dated 15-6-1997 that the owner of the house respondent No.4 gave notice to the petitioner No. 2 giving him 3 months time with effect from 1st July, 1997 to vacate his house on the ground of his own requirement and similar notice was also issued by Annexure.2 dated 27th July 1997 which shows that the said owner (respondent No.4) asked the petitioner to vacate the house on the ground of non payment of rental amount to the respondent No. 4 by the cheques issued by the petitioners which were dishonored by the Bank and also on the ground of his unauthorised construction in the building without any consent of the owner and approval of the authority concerned. In view of the aforesaid fact we find substance in the argument of Khasruzzaman that it is the petitioners who made unauthorised constructions and put the owner of the house (respondent No. 4) in trouble with malafide intention.
18. It appears that the impugned order dated 22-11-1999 was duly served upon the owner respondent No.4 as well as upon the occupier (the petitioners) and, as such, the whole argument of Khasruzzaman is that since there has been an established act of unauthorised constructions in the building without any sanction, the respondents had authority to direct the owner, the occupier and the person-in-charge of the building to show cause under section 3(A)(2), 3B of the Building Construction Act, 1952 (as amended) upon the occupier to vacate the building or premises and for removal or dismantlement of the unauthorised construction by evicting the occupier invoking the provision of sections 6 and 7 of the said Act. Therefore, the impugned order Annexure-Z dated 29-11-1999 issued by the respondent No. 2 for the purpose of demolition was valid and lawful and does not suffer from any legal infirmity. In support of his above contention, Khasruzzaman has placed reliance upon the decision in the Case of Anwar Ali (Md) Vs. Chairman, Rajdhani Unnayan Kartipakha (RAJUK) and others reported in 44 DLR 515 wherein their Lordships of this Division considered the provision of Building Construction (Amendment) Act, 1987 and also considered as to whether tenant of the owner can be evicted for construction without obtaining sanction from RAJUK. Their Lordships held as follows:
‘The provisions in sections 3B and 6 clearly give power to the Authorised Officer of the RAJUK to serve notice on the occupier and to direct him to vacate any building constructed without sanction by the owner. Therefore, the submission made by the learned Advocate for the petitioner that since the petitioner was a tenant of the owner, only the owner could evict him under the Premises Rent Control Act after giving notice under section 106 of the Transfer of Property Act is not tenable. This may have been true if the building was constructed without violating the provisions of the Building Construction Act, 1952 as amended in 1987. In this Case, admittedly the premise was constructed without obtaining sanction from RAJUK and therefore, respondent No. 2 validly passed the impugned order Annexure-F 26-12-1988 under the Building Construction Act 1952 for occupying such a building.”
It was further held:
“The provision of section 6 of the Building Construction Act that the respondent No. 2 may direct an occupier to vacate a premises simultaneously with a notice under section 3B. In the present Case respondent No. 2 having received no reply to his notice dated 23-11-1990 either from the owner or from the occupier, the occupier is liable to be directed to vacate the premise which has been constructed without obtaining sanction for dismantling”.
Having regard to the facts of the present and those of the cited Case we find that the proposition of law as expounded in the above cited Case is very much applicable in the facts and circumstances of the present Case.
19. In reply to the above contention as made out by the respondent RAJUK Mr Sikder, the learned Advocate for the petitioner, has reiterated his submission. However he relied on a decision in the Case of Abdus Sattar (Md) Vs. Bangladesh and others reported in 48 DLR (AD) 180. We have gone through the same but what we find is that in the above cited Case of the Appellate Division the appellant was the owner and his sanctioned plan was cancelled for extraneous reasons. No hearing was given to the appellant and, as such, their Lordships of the Appellate Division held:
‘No order of demolition can be passed under sub-section (5) of section 3B of the said Act unless finding is given that the disputed construction answers the description contained in clause (1) or (b) or (c) of sub section (5) This action was nothing but riding roughshod over the procedural safeguard guaranteed to the owners and occupier. The impugned order of the Authorised Officer lacks any legal basis and cannot be sustained.’
But the fact of instant Case is that, notice under section 3 was given to the owner with a finding that an unauthorised construction was made as per Annexure- 1A, 1B, and 1C as discussed above and the petitioners were informed by the owner of the house vide Annexures 2 and 3 and as such, we hold that the petitioners as occupier all along knew that no sanction had been obtained for such unauthorised construction of the premises and the same was liable to be dismantled for violation of section 3 of the Act, In such view of the matter the above cited Case of the Appellate Division as relied upon by the petitioners can not be made applicable in the present Case and it is quite distinguishable from the facts of the instant Case.
20. Asaduzzaman, the learned Advocate, appearing for the respondent No. 4 (the owner of the house), has almost adopted all the arguments made on behalf of respondent No. 1 (RAJUK) and he has also relied upon the decision reported in 44 DLR 515. The learned lawyer for the respondent No. 4 has however argued by referring to the Annexure-1-4(I) of the affidavit-in-opposition of this respondent submitted that there existed no relationship of landlord and tenant between the respondent No. 4 and the petitioners and the alleged claim of the petitioners regarding oral agreement with the respondent No. 4 is a myth and a cock and bull story, particularly in view of Annexure-4 dated 15-4-1999 wherein it was clearly stated that no further extension under any circumstances is possible beyond 30-7-1999. Mr. Asaduzzaman, having referred to the relevant Annexures of the affidavit-in-opposition filed by the respondent No. 4 argued that the petitioners the occupier of the house were very much aware of the earlier notices issued by the respondent No.2 also by letters issued by the owner of the house regarding the petitioners’ unautho4ed construction and sufficient time was very much available to the petitioners but due to their inaction the impugned order was passed within competence of the respondent No. 2 and the saint does not suffer from any legal infirmity for interference by this Division. The learned lawyer for the respondent No. 4 further submitted that his client the respondent No. 4 several times informed the RAJUK that the petitioners made unauthorised construction in his house.
21. In order to appreciate the above submission of the learned Advocate for respondent No. 4 let us now shortly consider relevant documents filed in his affidavit-in-opposition. By Annexure-1 dated 15-6-1997 was issued by the respondent No. 4 to the petition No. 2 asking him to vacate the premises by 30-9. 1997. The respondent No. 4 the landlord further issued a letter dated 27-7-1997 (Annexure.2) to the petitioner No. 2 stating that he is not paying the rent and the cheques given by him were dishonored by the concerned bank. It was further informed to the petitioner No. 2 that he has constructed unauthorised shed in his house, cut down all fruit bearing trees, knocked down permanent walls, etc. which are neither acceptable to him nor allowed by the DIT and Municipal rules. It was also informed to the petitioner that the concerned authorities were insisting to demolish the tin shed.
22. By Annexure-3 the respondent No.1 published a list in the General Gazette notification on 10-10-1997 in the daily Ittefaq regarding the unauthorised business and construction in the Gulshan and Banani residential area wherein the name of the respondent No. 4 and the premises were mentioned in Serial 16.
23. The respondent No. 4 issued a letter to the petitioner on 15-4-1999 (Annexure-4) for vacating the premises as the terms of the lease agreement dated 18-7-1996 was ending on 31-7-1999 and no further agreement was made or promised to be made. So, we accept the submissions of the learned lawyer for the respondent No. 4 that the claim of the petitioners about the oral agreement with the landlord after the expiry of the said lease agreement is a myth and a cock and bull story. It further appears that the petitioners ignoring the letter of respondent No.4 continued to stay in his house and made unauthorised construction by cutting down the trees and the respondent No. 4 was given threat to his life by the petitioners and for which he (owner of the house) had to file a GD entry of 14-7-1999 (Annexure-5). In the GD entry the respondent No. 4 clearly stated that the petitioners have made construction without any permission either from him or from the respondent.
24. By Annexure-11 dated 28-7-1999 the Authorised Officer RAJUK issued show cause notice under section 3 of the Building Construction (Amendment) Act, 1987 upon the respondent No.4 for unauthorised construction in the house and asked to show his (owner’s) approved plan within 7 days and the petitioners were also aware of the said notice since the petitioners have been doing their unauthorised business in the residential house in The Dhaka City Corporation issued a show cause notice to the petitioner on 29-7-1999 vide Annexure-7 asking them to close down their unauthorised and illegal business in the house of the respondent No. 4 and copy of the said letter was received by the respondent No. 4. But the petitioners instead of complying with that notice are still continuing their illegal business in the residential area. On 1-8-1999 (vide Annexure-8) the Authorised Officer of RAJUK issued a show cause notice upon the respondent No. 4 under section 3 of the Building Construction (Amendment) Act 1987 asking him to explain his position about the unauthorised construction and the respondent No. 4 vide Annexure-9 dated 8-8-1999 replied to the respondent No. 1 by clearly stating that the construction made in the premises was done by the petitioners without any approval of respondent No. 1, RAJUK or from taking any permission from the respondent No. 4.
25. The owner of the house also informed the petitioners about the said show cause notice. It further appears that the petitioners also filed a Civil Suit against the respondent No.1 in the 2nd Court of Subordinate Judge, Dhaka for permanent injunction and said suit was however dismissed on 3 1-8-1999 vide Annexure-6 of the said affidavit of respondent No. 4. It appears that the respondent No. 4 having received a show cause from the RAJUK regarding unauthorised construction the respondent No.4 wrote a registered letter with AID on 19-10-1999 (Vide Annexure-4(1) to the petitioner No.2 asking them to vacate the premises mentioning about all his letters of reminders and calling upon them to completely knock down the unauthorised construction. The respondent No. 1 issued a notice upon the respondent No.4 (Vide Annexure-10) dated 19-10-1999 serving a copy thereof upon the petitioner No.2 whereby the whole plan of the house of the respondent No.4 was cancelled by RAJUK and gave him one month’s time for preferring an appeal. The respondent No.4 did not take any legal remedy on the understanding the said cancellation order would apply only to the unauthorised construction on the subject premises and would not affect the authorised portions of the construction which was made by the respondent No.4 in accordance with the plan approved by RAJUK on 3 1-5-1968. The purpose of serving notice to the occupier (petitioner), in our view, is nothing but for proper communication with the owner of the house. In the present Case, as the whereabouts of the owner is well known so the issuance of notice to the owner is absolutely the correct procedure and is a constructive notice to the occupier. Moreover, Annexures-7 and 10 of the respondent No. 4’s affidavit-in-opposition clearly showed that copy of those Annexures was given to the petitioners by which the petitioners were made aware of their unauthorised activities.
26. Having regard to our above discussion and consideration of the mentioned here above we are of the view that the petitioners were very much aware of the show cause notice issued by the RAJUK under the Building Construction (Amendment) Act, 1987. We are further constrained to hold that the question of 7 days’ time for dismantling under section 3B of the Act is not applicable here as 7 days’ notice was already given earlier. Besides, the inaction of the impugned notice (which gave 3 days) by RAJUK continued for 43 days (from issuing date of impugned order dated 21-11-1999 upto the date of issuance of Rule and stay dated 4-1-2000 and thus it covers more than the period of 7 (seven days time). So, we hold that the argument of non compliance of giving 7 days falls through because of the fact that admittedly several 7 days elapsed and it was sufficient time available to the petitioners since no steps were taken by RAJUK to dismantle the building. The petitioners in all fairness could very well prefer appeal under section 15 of the Building Construction Act, 1952 but has not done so. The question of 6 months notice under section 3A is not applicable here at all as the said section speaks of use of the building which does not conform to the scheme of land utilization indicated in the master plan and the impugned notice was not issued on that ground. Furthermore, it appears to us that admittedly there is no lease agreement between the parties since 1- 9-1999 and no relationship of landlord and tenant exists now and, as such, the petitioners are at present in illegal occupation and are trespassers in the house. Hence, they have no locus standi to invoke writ jurisdiction under Article 102 of the Constitution. Having considered the submission made by the learned lawyers of the parties and in view of aforesaid cited decisions and the materials on record; we do find no merit in this Rule for interference. So the impugned order is absolutely lawful and proper.
In the result, the Rule is discharged with costs of Taka 20,000.00 (twenty thousand) against the petitioners.