Sharif Ashraf Uzzaman Vs. Bangladesh and others 2017 (2) LNJ 166

Case No: Writ Petition No. 7395 of 2015

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. Mohammad Samiul Huq, Mr. Md. Khurshedul Alam,

Citation: 2017 (2) LNJ 166

Case Year: 2017

Appellant: Sharif Ashraf Uzzaman

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-10-17

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J.

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

10.01.2017

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Sharif Ashraf Uzzaman

...Petitioner.

-Versus-

Bangladesh and others

...Respondents.

Constitution of Bangladesh, 1972

Article 102(2)

Government pleader (GP) at District Bar should not opine on the jurisdictional issue of the High Court Division:—The learned Government Pleader (GP) assigned for dealing with the VP cases of Gopalgonj, opined that the petitioner’s matter cannot be adjudicated in the High Court Division and the petitioner was supposed to seek remedy in the Arpita Sompotti Tribunal. He did not give his opinion on the substantial issue as to whether publication of the petitioner’s property in the ‘Ka’ list appeared to him to be a mere mistake or there was some documentary basis to enlist the property as a vested property. Without getting himself engaged in his expected business, he became concerned with the jurisdictional issue of the case pending before this Court. Being a legal practitioner of a District Court, it was not appropriate for him to record an opinion with regard to jurisdiction of the High Court Division. There is a popular proverb “The cobbler should not judge beyond his shoe” (Ne sutor ultra crepidam sutor indicaret). When the highest law office of the land, namely Office of the Attorney General, is appearing on behalf of the Government and the matter is being adjudicated upon by a Division Bench of the High Court Division, it does not fall within the business of a GP to comment on the jurisdictional issue of the High Court Division; his only duty was to scrutinize the papers and, then, opine as to whether the enlistment was done mistakenly or if there is a case for the Government to contest before the Court. . . . (6)

Constitution of Bangladesh, 1972

Article 102(2)

Under what situation/when the High Court Division is competent to directly entertain the writ petition challenging the enlistment of the vested property:—While  normally an aggrieved party is required to approach the forum prescribed in a statute, there are many exceptional situations when an aggrieved party’s application under Article 102 of the Constitution is directly entertained by the High Court Division and one of the above exceptional circumstances is; where an action/decision taken by any State-functionary/statutory authority/local authority can be shown on the face of the record (ex-facie) by the aggrieved party that the same has been done/taken by the concerned authority mistakenly/wrongly /illegally. An aggrieved party is also competent to directly invoke the jurisdiction of Article 102 of the Constitution challanging an action/decision or a proceeding taken by a State-functionary who does not have legal power to take the impugned action (without jurisdiction) or he has taken it out of personal grudge (malafide) or the law has been applied maliciously, by-passing the statutory forum, if the forum is not one created under the sermon of the Constitution, such as the Administrative Tribunal.      . . .(8)

Constitution of Bangladesh, 1972

Article 102

Duty of the State-functionaries to review its own mistake:—If a citizen is exposed to hassle due to a fault of any State-functionary, the latter’s duty is to rectify the wrong without compelling the citizen to approach the Court causing further harassments.             . . .(9)

Constitution of Bangladesh, 1972

Article 102

In the absence of the name of any Hindu title holder in any of the record of rights the inclusions of the property in the ‘Ka’ list is a mere mistake-In order to treat a property as a vested property, from the tier of CS record to the stage of BS record, there must be at least one Hindu title-holder. In this case, from the CS, SA, RS, and BS records, it is abundantly clear that all the recorded tenants, starting from the year 1943 to date, are of Muslim ethnicity. Therefore, it is our considered view that the mistake is vividly apparent on the face of the record and anyone with ordinary prudence upon going through the aforesaid documents would unhesitatingly come to a conclusion that there is no reason for inclusion the petitioner’s property in the ‘Ka’ list as vested property. Had the Deputy Commissioner or the learned Government Pleader gone through the aforesaid papers minutely, they could have come to a decision that the publication of plot no. 2633 under the serial no. 859 in the Gazette Notification published on 26.04.2012 was a mere mistake.          . . .(11)

Mr. Mohammed Samiul Huq, Advocate

…. For the petitioner

Mr. Md. Khurshedul Alam, DAG

Mrs. Nasrin Parvin, AAG        

. . . For the respondents

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why the wrong inclusion of the petitioner’s plot no. 2633 of S.A. Khatian No. 254 under Mouza Borashur (J.L. No. 38), Police Station : Kashiani, District-Gopalganj, in the ‘Ka’ list of Vested Property by Notification No. 31.00.0000.040.53.005.2012-17 dated 26.02.2012 as published in the Bangladesh Gazette, extraordinary issue, dated 26.04.2012 (annexure-C), should not be declared to have been done without lawful authority and is of no legal effect  and/or pass any other order or direction as this Court may deem fit and proper.

2.          Briefly, the facts of the case of the petitioner are that the petitioner is a freedom fighter and the owner of 21 decimals land situated at Plot no. 2633 of SA Khatian no. 254 under Mouza Borashur, Police Station: Kashiani, District: Gopalgonj which originally belonged to Ainuddin and others who were Muslims, and RS record was also prepared in their names. Thereafter, father of the petitioner purchased the said property from the Ainuddin and others in the year 1943 and accordingly SA and BS Khatians were prepared in the petitioner’s name demonstrating his right, title and ownership over the property. The Government of Bangladesh decided to acquire the said property of the petitioner and accordingly the Deputy Commissioner of Gopalgonj (respondent no. 2) served notice of acquisition upon the petitioner vide LA Case No. 11/2012-2013 under Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982. Upon receipt of the notice, the petitioner applied for award of compensation in the prescribed form and his application was numbered as LA Docket No. 812 dated 02.07.2015. But the concerned officer refused to award compensation in favour of the petitioner on the plea that the property in question is included in the vested property list. The petitioner after making thorough inquiry of the matter, found that the property in question has really been included in the ‘Ka’ list of the vested property list under serial no. 859 of XII-V.P.-1370/69-69 by notification dated 26.02.2012 as published in the Bangladesh Gazette, Extraordinary Issue, dated 26.04.2012. The petitioner thereafter wrote to respondent no. 2 on 10.06.2015 stating all the aforementioned facts and circumstances and asking to take necessary steps to correct the mistaken inclusion of his property in the vested property list. Respondent no. 2 upon receipt of the application of the petitioner sent the case docket to Revenue Deputy Collector who asked Land Acquisition Officer for investigation and after carrying out proper inquiry, he found that the petitioner’s suit plot no. 2633 has indeed been mistakenly included in the vested property list instead of Plot no. 2433 of SA Khatin no. 1737 and the above fact is reflected in the Note Sheet dated 02.07.2015. As per Section 10(1) of the Vested Property Release Act, one has to apply within 300 days for release of his property after publication of the vested property list and Section 10(1)(ka) of said Act fixes the last date of application for release of property on or before 31.12.2013. However, the petitioner only came to know about the impugned inclusion when he applied before the concerned authority to receive compensation award for acquisition of the property and in the meantime, statutory period of limitation to apply before the Vested Property Tribunal had expired and as such the petitioner, finding no other alternative efficacious remedy, filed the instant writ petition and hence this Rule.

3.          This matter had been heard at length on the factual aspect of this case as well as on the legal points involved in this Rule. On 04.08.2016, however, when it surfaced from the annexure-F, which is the order dated 02.07.2015 passed by the Acquisition Officer of the District of Gopalganj in LA Case No. 11/2012-13 containing that the petitioner’s property has actually been mistakenly included in the ‘K’ Schedule of the vested property, this Court asked the learned Assistant Attorney General Mrs Nasrin Parvin to advise the Deputy Commissioner of the Gopalganj District to correct the mistake, as the error was evidently detected by an officer of his own office with the designation of the Land Acquisition Officer. At the same time, we also directed the petitioner to approach the concerned authority by making a written representation detailing the factual background of his grievances with a prayer to rectify the same by delisting his property from the Gazette Notification dated 26.04.2012.

4.          Today, by filing a supplementary affidavit the learned Advocate for the petitioner refers to annexure-H, which is the decision given by a Senior Assistant Commissioner serving under the supervision of the Deputy Commissioner of Gopalganj vide circular dated 14.12.2016 being no. 31.30.3500.016.04.016.15, and submits that the petitioner’s written representation, which was filed as per the verbal direction of this Court, has been rejected.

5.          Considering the fact that the petitioner is a freedom fighter and he is experiencing this hassles and sufferings because of the negligence of the office of the Deputy Commissioner, this Court asked the learned Assistant Attorney General Mrs Nasrin Parven to again contact the Deputy Commissioner of Gopalgonj to advise the latter for correction of its own mistake exercising his power under Section 21 of the General Clauses Act, 1897 so that the petitioner can be remedied straightway. Learned AAG, accordingly, endeavored her best, but the DC of Gopalgonj declined to exercise his power under Section 21 of the General Clauses Act, 1897.

6.          Under the circumstance this Court is compelled to engage in pronouncing a full-fledged judgment. From the perusal of the above annexure-H, it appears that the concerned authority declined to dispose of the petitioner’s application in a positive manner, mainly, on the basis of the opinion obtained from the learned Government Pleader (GP) assigned for dealing with the VP cases of Gopalgonj, who opined that the petitioner’s matter cannot be adjudicated in the High Court Division and the petitioner was supposed to seek remedy in the Arpita Sompotti Tribunal. He did not give his opinion on the substantial issue as to whether publication of the petitioner’s property in the ‘Ka’ list appeared to him to be a mere mistake or there was some documentary basis to enlist the property as a vested property. Without getting himself engaged in his expected business, he became concerned with the jurisdictional issue of the case pending before this Court. Being a legal practitioner of a District Court, it was not appropriate for him to record an opinion with regard to jurisdiction of the High Court Division. There is a popular proverb “The cobbler should not judge beyond his shoe” (Ne sutor ultra crepidam sutor indicaret). When the highest law office of the land, namely Office of the Attorney General, is appearing on behalf of the Government and the matter is being adjudicated upon by a Division Bench of the High Court Division, it does not fall within the business of a GP to comment on the jurisdictional issue of the High Court Division; his only duty was to scrutinize the papers and, then, opine as to whether the enlistment was done mistakenly or if there is a case for the Government to contest before the Court.

7.          It appears to us that the learned GP without examining and considering the relevant papers of this case, namely CS, RS, SA & BS records of the case-property made his opinion even though it was his mandatory duty to state as to whether petitioner’s property was enlisted in the ‘Ka’ schedule as vested property mistakenly or the same was done relying on any information. Instead of performing his duty by examining the aforesaid papers, he documented his opinion in a slipshod manner which appears to us to be unbefitting to the statutory duty of an Advocate.

8.          Let it be known to the learned GP and all the concerned State-functionaries that while normally an aggrieved party is required to approach the forum prescribed in a statute, there are many exceptional situations when an aggrieved party’s application under Article 102 of the Constitution is directly entertained by the High Court Division and one of the above exceptional circumstances is; where an action/decision taken by any State-functionary/statutory authority/local authority can be shown on the face of the record (ex-facie) by the aggrieved party that the same has been done/taken by the concerned authority mistakenly/wrongly/illegally. An aggrieved party is also competent to directly invoke the jurisdiction of Article 102 of the Constitution challenging an action/decision or a proceeding taken by a State-functionary who does not have legal power to take the impugned action (without jurisdiction) or he has taken it out of personal grudge (malafide) or the law has been applied maliciously, by-passing the statutory forum, if the forum is not one created under the sermon of the Constitution, such as the Administrative Tribunal.

9.          While the grievances of the petitioner, who is a freedom fighter, could have been resolved comfortably through delisting the property from the list of ‘Ka’ Schedule of the vested property simply on the basis of examination of CS, SA, RS & BS records, the opinion formed and recorded by the learned Advocate for the VP case of the Gopalganj District pushed this case to be adjudicated upon through a detailed judgment of this Court which is overwhelmingly overburdened with huge backlog of cases and, consequently, it has become impossible for the judges of this Court to hand down descriptive judgment in each and every case. Also, it was incumbent upon the DC of Gopalganj to do the needful for correction of the Gazette Notification dated 26.02.2012 in the light of the fact that the error was done by him (his office) and subsequently the same was detected by his office at the time of carrying out the acquisition task. If a citizen is exposed to hassle due to a fault of any State-functionary, the latter’s duty is to rectify the wrong without compelling the citizen to approach the Court causing further harassments.

10.      In any event, when this Court through the learned AAG, had verbally directed the DC of Gopalganj to exercise his power under Section 21 of the General Clauses Act 1897, stubbornness of the DC Gopalganj not to correct his own mistake simply demonstrates his incompetency to be at the helm of the administrative affairs of any District of Bangladesh. A positive action of the Deputy Commissioner of Gopaljanj could have saved the invaluable time of this Court, on top of saving the financial loss and the mental agony the petitioner suffered.    

11.      Upon examining the CS record, it appears that one Md. Ainuddin Karikar was the owner and possessor of plot no. 2633 under the Zaminder Abdul Kader Sardar and, thereafter, the petitioner’s father purchased the aforesaid property in the year 1943 and the SA record has been made in the name of the petitioner’s father. Subsequently, the name of the petitioner was recorded as his heir in the BS record. Furthermore, it appears that in the Gazette Notification dated 26.04.2012, which is the ‘Ka’ Schedule of the VP list, under the Serial No. 859, the Khatian nos. 1737 and 2275 are shown to be the VP Khatians, but from examining the aforesaid 2 Khatians, it is revealed that there is no plot bearing the number 2633 under the said two Khatians. More importantly, in order to treat a property as a vested property, from the tier of CS record to the stage of BS record, there must be at least one Hindu title-holder. In this case, from the CS, SA, RS, & BS records, it is abundantly clear that all the recorded tenants, starting from the year 1943 to date, are of Muslim ethnicity. Therefore, it is our considered view that the mistake is vividly apparent on the face of the record and anyone with ordinary prudence upon going through the aforesaid documents would unhesitatingly come to a conclusion that there is no reason for inclusion the petitioner’s property in the ‘Ka’ list as vested property. Had the Deputy Commissioner or the learned Government Pleader gone through the aforesaid papers minutely, they could have come to a decision that the publication of plot no. 2633 under the serial no. 859 in the Gazette Notification published on 26.04.2012 was a mere mistake.

12.      Under this circumstance, we are of the view that the present Rule deserves to be absolute with a direction upon the Secretary, Ministry of Land and the Deputy Commissioner of Gopalganj (respondent nos. 1 and 2) to exclude the petitioner’s property from the ‘Ka’ schedule land of the vested property, for, the same is wrongly published in the Gazette Notification dated 26.04.2012.

13.      Accordingly, the Secretary, Ministry of Land and the Deputy Commissioner of Gopalganj (respondent nos. 1 and 2) are directed to exclude the petitioner’s property from the ‘Ka’ schedule land of the vested property list by publication of a Gazette Notification within 30(thirty) days from the date of receiving this order.

14.      Resultantly, the Rule is made absolute with the above observations and directions.

15.      However, there will be no order as to costs. 

16.      Office is directed to send a copy of this judgment to the Hon’ble Prime Minister’s Principal Secretary for his information. Office is further directed to send a copy to Mr. Abu Hena Mostofa Kamal, an Advocate of the Gopalgonj District Bar Association who is performing the duty of the Government Pleader for vested property cases, in order to let him know about the blunder he has made in dealing with this case and, then, to make an assessment by himself on his own professional competency.

        Ed.

 



Writ Petition No. 7395 of 2015