Sayeda Mohsina Vs. Chairman, 1st Court of Settlement & another, 3 LNJ (2014) 719

Judge: Mahmudul Hoque,

Court: High Court Division,,

Advocate: Mr. Z.I.Khan Panna,Mr. Mozno Mollah ,Mr. Md. Shahidul Islam,,

Citation: 3 LNJ (2014) 719

Case Year: 2014

Appellant: Sayeda Mohsina

Respondent: Chairman, 1st Court of Settlement & another

Subject: Abandoned Property,

Delivery Date: 2014-07-10


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J
And
Mahmudul Hoque, J.

Judgment on
10.07.2014
  Sayeda Mohsina
. . .Petitioner
-Versus-
Chairman, First Court of Settlement, Bangladesh Abandoned Buildings, Dhaka & another.
. . .Respondents
 

Bangladesh Abandoned Property (Control, Management and Disposal) Order (PO 16 of 1972)
Article 2
The Government does not claim that the petitioner and her predecessors are nationals of any country other than Bangladesh or that they were not in possession of the case property, the inclusion of the case property in the “Kha” list which in no way can be termed as abandoned property.
The respondent-Government also does not claim that the petitioner, her vendors and the original lessee Md. Mahmood are nationals of any country other than Bangladesh  which at any time after 25.3.1971 was at war with Bangladesh or that they were not in possession of the case property. Rather, given the facts and circumstances, the very fact of inclusion of the property in the “Kha”list itself establishes to this Court that the petitioner has been in possession  all along and as such the case property in no way answers to the description of abandoned property as  defined in Article 2 of P.O. 16 of 1972 and hence the inclusion of the case property in the “Kha” list   is considered and found to be illegal and without jurisdiction. . . .(12)

Abandoned Building (Supplementary Provisions) Ordinance (LIV of 1985)
Section 5(1) (b)
Bangladesh Abandoned Property (Control, Management and Disposal) Order (PO 16 of 1972)
Article 7
No notice having been served upon the occupier either under Section 5(1)(b) of the Ordinance or under   Article 7 of P.O. 16 of 1972 , the listing of the case property in the “Kha” list of the abandoned buildings is, therefore, clearly found to be done without lawful authority. . . . (14)

Abandoned Building (Supplementary Provisions) Ordinance (LIV of 1985)
Section 10 (2)
The Court of Settlement without determining the question of facts and law involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason this Court arrives at the conclusion that the Court of Settlement’s Judgment and Order dated 19.11.2001 is indeed a perverse one being contrary to the facts, circumstances and evidence on record and as such this Court is inclined to interfere with the impugned Judgment of the Court of Settlement....(21)

Bangladesh & others Vs. Md. Jalil and others, 48 DLR (AD) 10; Secretary, Ministry of Works Vs.  Rowshan Ara Begum, 57 DLR (AD) 167; Bangladesh Vs. A. T. M. Mannan and others, 1 BLC (AD) 8 and Syeda Chand Sultana and others Vs. Bangladesh, 1 MLR (HCD) 310, which was affirmed by the Appellate Division and  reported in 51 DLR (AD) 24 ref.

Mr. Z.I.Khan Panna with
Mr. Mozno Mollah and
Mr.Munir Tanveer-E- Mahbub
…For the Petitioner.

Mr. Md. Shahidul Islam, D.A.G. with
Mr. Sukumar Biswas, A.A.G.
…. For the Respondents

Writ Petition No. 684 of 2002
 
JUDGMENT
Mahmudul Hoque, J:
 
This Rule Nisi was issued under Article 102 of the Constitution of the People’s Republic of Bangladesh at the instance of the petitioner calling upon the  respondents to show cause as to why the impugned Judgment and  Order dated 19.11.2001 ( Annexure-F) shall not be declared to have been passed without  any jurisdiction and is of no legal effect  and why the holding No. 13/4, Block-D, Mohammadpur, Dhaka should not be released from the “Kha” list of abandoned Building published on 23.9.1986 or such other or further order or orders passed as to this Court may seem fit and proper.

Facts leading to disposal of this Rule Nisi, in short, are that the property in question was leased out to one  Md. Mahmood by the then Government of East Pakistan vide lease deed No. 2892 dated 11.07.1960 for 99 years. While the said original lessee was in possession of the property in question he died leaving behind his wife Salma Begum, 3 sons Shakil, Zahed Mahmood, Arshad Mahmood and daughter Gazla Mahmood. Said Salma Mahmood filed Act VIII case being No. 451 of 1974 in the court of District Judge, Dhaka and in that case she was appointed guardian of the minors and thereafter she obtained permission from the said court to sell the case property vide permission case No. 546 of 1974. She paid all necessary charges to the authority concerned and accordingly a clearance certificate dated 22.08.1974 was issued by the Administrative Officer certifying payment of  all dues by the lessee Md. Mahmood.

Thereafter, Salma Begum @ Salma Mahmood, as guardian duly appointed by the court, sold the case property to the petitioner by a registered deed of sale being No. 167 dated 03.01.1975 and handed over possession thereof. Since then the petitioner has been possessing the case property and living therein with her family and mutated her name in the Khatian and paid rents to the Government. The petitioner applied to the Assistant Commissioner, Settlement, for mutation of her name in the record of the housing estate and accordingly, Assistant Commissioner, Settlement issued a letter No. 1839/C-S dated 25.03.1985 asking the petitioner to submit necessary papers and documents. The petitioner submitted all necessary documents as asked for. Thereafter, a survey was held by a survey team headed by Assistant Engineer Mr. Salimullah Bhuiyan on 17.07.1983 wherein the petitioner was found in possession. In the remark column of the survey report dated 13.01.1984, it was stated that “Mrs. Salma Begum @ Salma Mahmood wife of late Md. Mahmood the successor of the original lessee sold out the property to the present occupier Mrs. Sayeda Mohsina and the name has not yet been mutated in respect of the present occupant. Since Mrs. Salma Begum the successors of original lessee is residing in V-A/7 Razia Sultana Road, Block-D, Mohammadpur, Dhaka, the property may not be treated as an abandoned property.”

In spite of the findings in the survey report, the case property of the petitioner being included in the list of abandoned buildings, the petitioner filed an application under Section 7(1) of the  Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (“Ordinance”) before the Court of Settlement. The said application was registered as Case No. 32 of 2000. The Government contested the case, however, without filing any written statement.

The Petitioner contends that the Court of  Settlement heard the case and upon hearing dismissed the same  by its Judgment and Order dated 19.11.2001 but without taking into consideration the papers and documents submitted before it to substantiate the claim of the petitioner. Against this backdrop the petitioner moved this Court by filing this application under Article 102 of the constitution challenging the Judgment and Order passed by the Court of Settlement and obtained the present Rule and Order of stay.
The Respondent No. 2, Government of Bangladesh contested the Rule by filing an Affidavit-in-Opposition denying all the material allegations made in the petition contending inter alia that the original lessee of the case property Md. Mahmood during the War of Liberation of 1971 left this country leaving the case property uncared for and thus he ceased to occupy, supervise and manage the case property in person at the relevant time i.e. on 28.02.1972 being the date promulgation of The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (“P.O. 16 of 1972”). Consequently, the Government declared the case property as an abandoned property under the provision of Article 2(1) of the P. O. 16 of 1972. It is contended that the alleged sale by Salma Begum to the petitioner Sayeda Mohsina by registered deed of sale dated 03.01.1975 is accordingly, null and void under the provisions of Article 6 of the P.O. 16 of 1972. It is also asserted that Md. Mahmood’s whereabouts were not known to the concerned authority and the Government, consequentially, after completing all formalities published the Gazette under the provision of Section 5(1) of the Ordinance which is conclusive evidence of fact of the abandoned status of the case property under Section 5(2) of the Ordinance. It is also asserted that the petitioner has failed to prove her case by adducing evidence to the effect that the original owner Md. Mahmood was present in Bangladesh and he occupied, managed or supervised the disputed building when P.O. 16 of 1972 came into force. Hence, it is submitted that the very listing of the case property in the “Kha” list of the abandoned buildings is lawful and conclusive proof of facts and that the Court of Settlement passed the Judgment and Order rightly and considering the papers and documents filed by the claimant.

Mr. Z.I. Khan Panna with Mr  Mozno Mollah and Munir Tanveer -E- Mahbub, the learned Advocates for the petitioner supporting the Rule submit that in the present case the original lessee Md. Mahmood was in possession of the case property till his death in this country as a national of Bangladesh. After the death of the said Md. Mahmood his wife, 3 sons and only daughter inherited the property as his legal heirs. They also were in possession, control and management of the property. The aforementioned sons and daughter of Late Md. Mahmood being minors his wife Salma Begum @Salma Mahmood got herself appointed as guardian of her minor children through court and subsequently obtained permission for sale of the property for the benefit of the minors vide Permission Case No. 546 of 1974. Thereafter, she herself and on behalf of her minor children sold the case property to the petitioner by a registered deed of sale being No. 167 dated 03.01.1975 as citizen of Bangladesh and handed over possession to the latter. Since then the petitioner has been possessing the case property and living thereon with her family members. It is also submitted that the said Md. Mahmood never left this country at any time before and after the promulgation of P.O. 16 of 1972 and he was in possession of the property till his death as a national of Bangladesh.

Mr. Khan further submits that service of notice under Section 5(1)(b) of the Ordinance upon the owner or occupier of the case property is a condition precedent as set forth in the Ordinance before enlistment of the property in the “Kha” list. It is contended that in the instant case no such notice was issued or served upon the petitioner or her vendors either under Article 7 of P.O. 16 of 1972 or under Section 5(1)(b) of the Ordinance before the listing of the property in the ‘Kha’ list of the abandoned buildings and as such the enlistment of the property in the list of the abandoned buildings is palpably illegal and without jurisdiction. It is also argued that since the original lessee Md. Mahmood was a citizen of Bangladesh and was in possession, control and supervision of the case property at all material times and died in Bangladesh as a Bangladeshi national the property in question cannot be under the law treated as an abandoned property. He further submits that the Court of Settlement in its Judgment totally ignored the fact of the granting of a guardianship certificate by a competent court and permission for selling the property on behalf of the minor children and as such the Judgment and Order of the Court of Settlement is based on non-consideration of material evidence adduced by the petitioner claimant before it. In support of his submissions Mr. Khan has referred to the cases of Bangladesh -vs- Helaluddin Ahmed reported in 4 MLR (AD) 40, Bangladesh -vs- Md. Shahjahan reported in 2 ADC (2005) 411, Bangladesh -vs- Bibi Morium reported in 54 DLR (AD) 100, Bangladesh -vs- Nasima Khatun reported in 57 DLR (AD) 97 and Syeda Chand Saltana & others -vs- Bangladesh reported in 1 MLR (HCD) 310.

Mr. Shahidul Islam, the learned Deputy Attorney General with Mr. Sukumar Biswas, the learned Assistant Attorney General appearing for the Respondent No. 2, Government in opposing the Rule submit that the person who claims the case property is not an abandoned property is to prove that the original lessee, in the instant case Md. Mahmood, occupied, managed or supervised the case property on the relevant date, i.e. on 28.02.1972. The petitioner having failed to prove the same, the inclusion of the building in the ‘Kha’ list is submitted to be proof enough of it being an abandoned property and the Government has in the circumstances nothing to prove or deny. Mr. Islam further submits that in the present case the petitioner could not show that Md. Mahmood was present in Bangladesh on material dates or that he occupied, managed or supervised the case property when P.O. 16 of 1972 came into operation and as such the listing of the property in the ‘Kha’ list as abandoned property is lawful and in turn constitutes conclusive proof of the fact of abandonment of the property. It is also argued that under Writ Jurisdiction this Court cannot sit over the Judgment of the Court of Settlement as a court of  appeal unless it could be shown that the Court of Settlement   had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence or that it had acted mala fide or in violation of any principles of natural justice. In support of his submissions he referred to the cases of Bangladesh & others –vs- Md. Jalil and others reported in 48 DLR (AD) 10, Secretary, Ministry of Works -vs- Rowshan Ara Begum reported in 57 DLR (AD) 167 and Bangladesh – vs- A.T.M. Mannan and others reported in 1 BLC (AD) 8.
Heard the learned Advocates for the parties, perused the application, Affidavit-in-Opposition and annexures annexed thereto as well as the Records called for by this Court from the Court of Settlement.

The petitioner to substantiate her claim has annexed to the Writ Petition all the relevant documents e.g. allotment order dated  16.1.1960 (Annexure-A), Original lease deed dated 9.2.1960 (Annexure-A1), Certified copies of two applications made in Act VIII Case No. 451 of 1974 and in the Permission Case No. 456 of 1974 ( Annexure-B and B1) and the orders passed in the aforesaid cases appointing the petitioner guardian  of  the minors and granting permission to sell the property in question. Clearance Certificate dated 22.8.1974 issued by the Administrative Officer, Mohammadpur and Mirpur Housing Estate (Annexure-B2), deed of sale No. 167 dated 28.12.1974 executed by Salma Begum in favour of the petitioner (Annexure-C), Rent receipts showing payment of rent  (Annexure- C series),  letter dated 25.3.1985 written by the Assistant Commissioner, Settlement asking the petitioner to submit some documents for the purpose of effecting mutation in her name (Annexure-D), inquiry report  dated 9.10.1994 submitted by the Administrative Officer, Mohammadpur Housing Estate confirming the possession of the petitioner in the case property on the basis of purchase (Annexure-D1), and House to House survey  report dated 13.1.1984 finding possession of the petitioner in the property (Annexure-E). All these papers and documents prove that the petitioner has been possessing the case property since her purchase and also the aforesaid documents, particularly the order of the court appointing Salma Begum as guardian  of the minors  and permitting her to sell the property show that the predecessor-in-interest of the petitioner Md. Mahmood and his heirs as well as the present petitioner are all nationals of Bangladesh  and they have always been in possession of the case property. There is nothing on record to suggest that at any point of time did the petitioner and her predecessors-in-interest cease to occupy, supervise and manage the case property in person.

The respondent-Government also does not claim that the petitioner, her vendors and the original lessee Md. Mahmood are nationals of any country other than Bangladesh  which at any time after 25.3.1971 was at war with Bangladesh or that they were not in possession of the case property. Rather, given the facts and circumstances, the very fact of inclusion of the property in the “Kha”list itself establishes to this Court that the petitioner has been in possession  all along and as such the case property in no way answers to the description of abandoned property as  defined in Article 2 of P.O. 16 of 1972 and hence the inclusion of the case property in the “Kha” list is considered and found to be illegal and without jurisdiction.

It is contended further by the petitioner that no notice as contemplated under Section 5(1)(b)  of the Ordinance was served upon the petitioner at any time before listing the property as an abandoned one. Provisions in Section 5(1)(b) of the Ordinance may be looked into which run thus:-
“Section 5(i) The Government shall, after the commencement of the Ordinance and before the 31st day of December, 1988, publish, from time to time, in the Official Gazette…” (b) Lists of buildings in respect of which notices for surrendering or taking possession as abandoned property under the said Order have been issued.

It is noted that a survey was held in respect of the case property on 17.8.1983 wherein the petitioner was found in possession. In the remark column  of the said report submitted on 13.1.1984 it has been clearly stated that Mrs. Salma Begum @ Salma Mahmud  wife of Md. Mahmood  the original lessee sold out the property to the present occupier Mrs. Sayeda Mohsina and it was  also held that since Mrs. Salma Begum successor of original lessee was residing in V-A/7, Razia Sultana Road. Block –D, Mohammadpur , Dhaka the property may not be treated as an abandoned property. The said survey report clearly recorded the unbroken chain of continuous possession by the petitioner and her predecessors-in-interest of the case property. Admittedly the respondent-Government could not show and produce any paper evidencing the fact of service of any notice upon the petitioner or her predecessors-in-interest under Section 5(1)(b)  of the Ordinance or under Article 7 of P.O. 16 of 1972. This indeed is a condition precedent before enlistment of the property in the “Kha”list of Abandoned Buildings. Article 7(3) of P.O. 16 of 1972 equally clearly requires the issuance of a notice seeking surrender of such property to the Deputy Commissioner or to show cause against such surrender. Relevant provisions of Article 7 read thus:-
7.(1).................................................
(2) Where any abandoned property is in possession of any person, such person shall, within seven days of the commencement of this Order, surrender such property to the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer.]
3) Where the person in possession of any abandoned property fails to surrender such property as he is required to do under clause (2), the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer] shall serve a notice on him in the prescribed manner requiring him to surrender possession of the property, within seven days of the service of the notice, to the person mentioned in the notice or to show cause against such surrender within the said period and if he fails to do so, the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer] shall take possession of the property in such manner as may be prescribed.   

The aforesaid provisions of Article 7 provide that before the listing of any property in the list of abandoned buildings as a ‘Kha’ list property notice as required by law has to be served upon the occupier of the property. It is not denied rather admitted by the Government that the petitioner is in possession of the case property and she was never disturbed or asked by any notice to surrender possession. Nor did the Government take any step to take over the possession of the same till publication of the Gazette    notification on 23.9.1986.  No notice having been served upon the occupier either under Section 5(1)(b) of the Ordinance or under   Article 7 of P.O. 16 of 1972 , the listing of the case property in the “Kha” list of the abandoned buildings is, therefore, clearly found to be done without lawful authority.

Furthermore, from the papers available in the Records nothing is found to show that the petitioner was ever asked to surrender the possession by any notice. Rather the survey report submitted on 13.1.1984 by the survey team, in this Court’s view, itself substantiates the petitioner’s case of continuous possession of the case property peacefully at all material times.

Apart from this an inquiry was also held in respect of the case property regarding its possession  and the Administrative Officer by a report dated 9.10.1994  clearly recorded the unbroken chain  of continuous possession by the petitioner and her vendors . The contents of the said report are reproduced below –

গনপ্রজাতন্ত্রী বাংলাদেশ সরকার,
প্রশাসনিক কর্মকর্তার দপ্তর,
মোহাম্মদপুর হাউজিং এষ্টেট, ঢাকা ।
স্বারকঃ- মিস-২/৯৪/পাট-৩/১১২৮/প্রঃ কঃ    তাং- ৯/১০/৯৪
প্রাপকঃ-  সহকারী কমিশনার, সেটেলমেন্ট,
গৃহায়ন ও গনপূর্ত্ত মমএনালয়,
সেগুনবাগিচা, ঢাকা ।

বিষয়ঃ-   মোহাম্মদপুরসহ ডি ব্লকের ১৩/৪ নং বাড়ীর তদমত প্রতিবেদন ।
সূত্রঃ- ৫৯০৪/১(১)/ক,সে তাং- ২৫/০৬/১৯৯৪ ইং ।
উল্লেখিত বিষয়ে ও সুত্রের প্রেক্ষিতে নিম্ম- স্বাক্ষরকারী জানাইতেছেন যে, মোহাম্মদপুরসহ “ডি” ব্লকের ১৩/৪ নং বাড়ীটির মূল লীজ গ্রহিতা জনাব মোঃ মাহমুদ পিতা মৃত- হাজী জুমরাতী । লীজ দলিল নং- ২৮৯২ তাং- ১১/০৭/৬০ ইং । মূল লীজ গ্রহিতার মৃত্যুর পর তাহার সএী জনাবা সালমা বেগম তাহার নাবালক/নাবালিকা ছেলে মেয়ে যথাত্রুমে (১) জাবেদ মাহমুদ (২) শাকিল মাহমুদ (৩) আরশাদ মাহমুদ (৪) গাজিলা মাহমুদ এর অভিভাবিকা নিযুত্তু হন । জেলা জজ- আদালতের নির্দেশ মোতাবেক । কেস নং- ৪৫১/৭৪। পরবর্তীতে জনাবা সালমা বেগম মাননীয় জেলা জজ, ঢাকা এর আদালতে বাড়ীটির বিত্রুয় অনুমতির জন্য আবেদন করেন যাহার কেস নং ৫৪৬/১৯৭৪ ইং মাধ্যমে আদালতের অনুমতি ত্রুমে তিনি বাড়ীটি জনাবা সৈয়দা মহসিনা, স্বামী জনাব সুফি ইউসুফ এর নিকট সাব-কবলা বিত্রুয় করেন । কবলা দলিল নং ১৬৭ তাং ০৩/০১/৭৫ ইং ।
বাড়ীটির খাতে সরকারী পাওনা কিসিতর টাকা সমুদয় পরিশোধ করা আছে ।
বর্তমানে উল্লেখিত বাড়ীটিতে ত্রেুতা মালিক জনাবা সৈয়দা মহসিনা ও তাহার ভাড়াটিয়াগন বসবাস করিতেছেন ।
অবগতির জন্য প্রেরন করা হইল ।

প্রশাসনিক কর্মকর্তা,
মোহাম্মদপুর হাউজিং এষ্টেট,
ঢাকা ।
আউয়াল/
তাং- ০৯/১০/৯৪ ইং ।
 
It is our finding that the Court of Settlement instead of considering all these papers and documents submitted by the claimant in its entirety  most arbitrarily and totally ignoring the  fact of appointment of guardian and permission to sell the property given by the court to Salma Begum arrived at a wholly different and unsubstantiated  finding that ,

অত্র মোকদ্দমার ঘটনা এবং আইনগত অবসহানে এমনকি নথিসহ সাক্ষীর সাক্ষ্য ও কাগজাদি পর্য্যালোচনায় প্রার্থীনি উল্লেখিত সালমা বেগমের সহিতই মূল মালিক মোঃ মাহমুদের স্বামী-সএী সম্পর্ক ছিল এবং প্রার্থীনির মালিকানা সংত্রুামত Basic documents প্রমানিত হয় নাই । প্রার্থীনির বায়া সালমা বেগম বাংলাদেশ স্বাধীন হওয়ার পর এদেশে ছিলেন এবং এদেশের প্রতি আনুগত্য স্বীকার করিয়াছিলেন  তদসম্পর্কীয় প্রার্থীনিপক্ষ উপযুত্তু কর্তৃপক্ষের দেওয়া নাগরিকত্ব সার্টিফিকেট, আনুগত্য প্রমানের সার্টিফিকেট, ভোটার লিষ্ট কিছুই দাখিল করিয়া প্রমান করেন নাই । বরং প্রার্থীনির বায়া কিংবা তাহার মালিকানার দলিলাদি প্রমানের জন্য যে সকল সাক্ষ্য প্রমান প্রদান করার প্রয়োজন ছিল তাহা উপসহাপন না করায় প্রতিপক্ষ সরকারের মোকদ্দমাটিই প্রমানিত হয় যেহেতু প্রার্থীনির নালিশী সম্পত্তিতে Basic title প্রমানিত হয় নাই । প্রার্থীনির ও তাহার পরিবার পরিজন স্বাধীনতা যুদ্ধের সময় হইতে নালিশী সম্পত্তি বিত্রুয় করা পর্যমত কিংবা এখন পর্যমত এদেশের নাগরিক তদবিষয়টি প্রমানিত হয় নাই ।
 
No explanation has been forthcoming from the respondent-Government as to why such finding may not be struck down as being wholly arbitrary. On the basis of the above quoted finding the Court of Settlement dismissed the case observing that the petitioner has failed to prove her title in the property by producing papers and witnesses.

The said observation of the Court of Settlement in this Court’s view, is absolutely contrary to the facts and circumstances of the present case and documents annexed by the petitioner. The inquiry report and survey reports as above considered conclusively establish that the petitioner has been possessing the case property by purchase from the heirs of the original lessee Md. Mahmood. In the absence of any contrary evidence the aforesaid two reports reinforce the argument that the lessee Md. Mahmood was a citizen and resident of Bangladesh at the material times and that because of the perverse finding of the Court of Settlement this issue totally remained suppressed.

It is also noted  that instead of deciding the question whether the listing of the property as an abandoned one was legally  done , the Court of Settlement in fact virtually decided the title of the petitioner  in the case  property which is not its statutory mandate to do. It is also found that the lessee Md. Mahmood died in Bangladesh leaving his wife Salma Begum, 3 sons and only daughter as his heirs who sold the property to the petitioner by a  deed of 1974 upon due compliance of legal formalities. Nothing has come out from the respondent- Government to establish to the contrary that the said Md. Mahmood  or his heirs were indeed not nationals of Bangladesh. In the case of Syeda Chand Sultana and others Vs. Bangladesh reported in 1 MLR (HCD) 310, which was affirmed by the Appellate Division and  reported in 51 DLR (AD) 24. it has been held that;
“Where the owners as Bangladeshi nationals having lawful title have been in possession of the property althrough and never  having ceased to manage or supervise the same and not having left the country and when there was no proper service of notice upon the petitioners as required under Article 7 of the P.O. no. 16 of 1972, the inclusion of the said building in the “Kha list” of abandoned properties being violative of the fundamental rights as contained in article 42 of the Constitution is illegal, without jurisdiction and of no legal effect and as such the petitioners are entitled to invoke the writ jurisdiction for enforcement of fundamental rights.
 
In the present facts and circumstances, this Court finds itself wholly subscribing to that ratio decidendi in the Syeda Chand Sultana Case. 

The Court of Settlement without determining the question of facts and law involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason this Court arrives at the conclusion that the Court of Settlement’s Judgment and Order dated 19.11.2001 is indeed a perverse one being contrary to the facts, circumstances and evidence on record and as such this Court is inclined to interfere with the impugned Judgment of the Court of Settlement.

Accordingly, this Court finds merit in this application and substance in the Rule Nisi issued.

In the result, the Rule is made absolute, however, without any order as to costs.

The impugned Judgment and Order dated 19.11.2001 (Annexure-F) passed by the First Court of Settlement, Dhaka in Settlement Case No. 32 of 2000 dismissing the case is hereby set aside and the respondent-Government is, hereby, directed to delete/withdraw and rescind the property in question from the “Kha” list published on 23.9. 1986 within 6(six) weeks from the date of receipt of this judgment.

Send down the Records received from the Court of Settlement, Segunbagicha, Dhaka alongwith a copy of this Judgment forthwith.

        Ed.