Sharifa Begum Vs. Government of Bangladesh and others, 2016(1) LNJ 325

Case No: Writ Petition No. 15331 of 2012

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Ms. Nasrin Parvin Shefali,Mr. Md. Harun-Or-Rashid,,

Citation: 2016(1) LNJ 325

Case Year: 2016

Appellant: Sharifa Begum

Respondent: Government of Bangladesh

Subject: Vested Property,

Delivery Date: 2015-5-10


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Md. Emdadul Huq, J
And
Muhammad Khurshid Alam Sarkar, J

Judgment on
10.05.2015
  Sharifa Begum
. . . Petitioner
-Versus-
Government of the People’s Republic of Bangladesh and others
. . . Respondents
 
Constitution of Bangladesh 1972
Article 102(1)
Writ Petition can be filed against a private person if an aggrieved person comes out with an allegation of playing foul with her/his fundamental rights by any one, this Court is the only forum to provide appropriate remedy to the said aggrieved person by issuing necessary direction or order upon any person or authority, be that private or public.                                                . . .(21)
 
Constitution of Bangladesh 1972
Articles 26 to 29 and 42
অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০
It is a qualified right inasmuch as the very wordings “subject to any restrictions imposed by law” speak itself that it is not an absolute right like the other fundamental rights guaranteed under Articles 26 to 29 of the Constitution. In the backdrop of providing a safeguard provision in the said অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ for challenging the enlistment of any person’s property in a forum specially created for the affected persons only, the petitioner’s right under Article 42 has not in any way been violated. Accordingly, the petitioner was not competent to invoke the forum under Article 102(1) of the constitution directly.       ...(23 and 24)
 
Expected professional conduct from the Advocates:
While a lawyer’s motto should be to achieve targeted result from a competent forum for his/her client, the lawyers must not seek to win a case by circumventing the due procedure laid down in a statute. This sort of tendency of a lawyer may be observed by the Court not only as a professional incompetency, but it may be taken as a malpractice. Making clients happy by any means, even by adopting an improper route, is not befitting with the cannons of the legal profession. . . . (45)
 
Limitation Act (IX of 1908)
Section 14
Time spent in the wrong forum would be excluded if in good faith a litigant files any suit, application, appeal, revision and review and, subsequently, if it surfaces that approaching of the said forum was done under a mistaken view, the said time period may be excluded from the computation of the time period stipulated in the first schedule of the Limitation Act, 1908 …………...(52)
 
Limitation Act (IX of 1908)
Sections 4, 9 to 18 and 29
Whether the time-limitations provided in the special laws can be extended the provisions contained in Sections 4, 9 to 18 and Section 22 shall be applicable for computation of time-limit for institution of any suit, making any application, preferring any appeal and filing revision or review under a special law if applicability of the said provisions has not been expressly negated or ousted in the concerned special law. It is widely known to the learned members of the Bench and Bar, even to most of the lay people, that the time which are required and consumed for obtaining certified copy or the vacation period of the Courts are usually deducted from not only the limitation period of ordinarily laws, but also from the special laws’ time-limitation. The source of this long-standing practice is none other than Section 29(2) of the Limitation Act, 1908 which speaks about applicability of the Sections 4, 12 and 14 of the Limitation Act, 1908 in reckoning the limitation period under the special laws. ………………....(57)
 
অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০

Limitation Act (IX of 1908)
Sections 14 and 29 (2)(a)
Since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is a special law wherein a certain time-limit has been stipulated to file any application before the tribunal and since, as per the provisions of Section 29(2)(a), provisions of Section 14 shall be applicable for not being excluded by any express provision of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ we are of the view that the petitioner is well competent to seek the protection and benefit of Section 14 of the Limitation Act, 1908 and, thereby, she may be allowed to exclude the time spent in this Court from the date of filing this writ petition. . . . (58)
 
Constitution of Bangladesh, 1972
Article 102
অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০

Being a forum equipped with necessary powers to remedy the grievance of the petitioner, she ought to have approached the tribunal. Upon elaborately discussing and categorically examining all the case laws of our Apex Court on this issue, latterly a Division Bench of this Court has sought to revisit the said point in the case of Concord Pragati Construction Ltd Vs BPDP 66 DLR 475 wherein it was held that availability of an alternative forum with the competency of providing the same remedy debars this Court to entertain a writ petition under Article 102(2) of the Constitution. It follows that the present writ petition is not apposite to be fitted into the purview of Article 102 of the Constitution and liable to be discharged on the maintainability ground.            ...(35 and 36)
 
Concord Progati Constructions Ltd. Vs. BPDB, 66 DLR 475; Priyatosh Talukdar Vs. Assistant Custodian, Vested and Non-Resident Property, Chittagong and others, 39 DLR (AD) 178; Bangladesh Vs. Syed Chand Sultana and other, 51 DLR (AD) 24; Begum Lutfunnessa Vs. The People’s Republic of Bangladesh and others, 42 DLR (AD) 86; Md. Abdus Sukkur Vs. Chairman, National Board of Revenue and others, 17 BLD (AD) 43 and Abdul Wahab Sheikh Vs. Md. Kamal Hossain and others, 20 BLT (AD) 282, ref.
 
Mr. Md. Haroon Ar Rashid, Advocate
. . . For the petitioner
Mrs. Nasrin Parvin, AAG
. . . For respondents.
 
Writ Petition No. 15331 of 2012
 
JUDGMENT
Muhammad Khurshid Alam Sarkar, J:
 
1. By filing this writ petition, the petitioner challenges the legality and propriety of the respondents’ action in enlistment of her property as the vested property under the “Ka” schedule vide the Gazette Notification dated 06.05.2012 printed at its page no. 41589 as serial no. 957 and, then, subsequently as a “Kha” schedule-vested property vide Gazette Notification dated 30.09.2012 at page no. 181542 thereof under serial no.103 (Annexure-H series).
 
2. Briefly, the facts of the case, as stated in the writ petition, are that the petitioner’s deceased husband Md. Chand Mia (hereinafter referred to as ‘the vendee’) entered into an agreement with the SA recorded owners Ms. Radha Rani Basak and Ms. Nanda Rani Basak (hereinafter referred to as ‘the vendors’) for purchasing a parcel of land of 0.0508 ajutangsha under the SA Khatian no. 209, SA Plot nos. 792 & 793 (currently, City Survey Khatian no. 2030 and City Survey Plot nos. 6985 & 6986) at a price of Tk. 9,125/- upon making an advance payment of Tk. 8,551/- on 15.08.1963. Thereafter, the vendee repeatedly requested the vendors to execute registration of the said agreement but the latter avoided their performance on different excuses. The vendee then filed Case no. 6526 of 1967 under Section 6(2) of The Disturbed Persons (Rehabilitation) Ordinance, 1964 before the Board of Revenue of the erstwhile East Pakistan impleading the vendors as the defendants seeking permission for filing a suit for specific performance of contract against the vendors and the same was allowed by the said concerned authority. Upon obtaining such permission the vendee filed Title Suit no. 290 of 1969 in the Court of learned Subordinate Judge, 1st Court, Dhaka praying for specific performance of contract impleading the vendors and the deputy custodian as the defendants. In the said suit the vendors did not contest, only the Assistant Custodian of Enemy Property contested the suit by filing a written statement and the said suit was decreed in favour of the vendee on 30.08.1971, against which the Government never preferred any appeal. Following obtaining the said decree the vendee filed Execution Case no. 20 of 1971 before the Executing Court which ordered for execution of the deed of sale on 25.10.1971 and, then, the vendee got the property in question registered on 27.10.1971 and, thereafter, he mutated his name in respect of the property in question and had been possessing the same by paying rents and all types of bills, rates and taxes, including WASA, Gas, electricity and Municipal Corporation Taxes.
 
3. Eventually, the said vendee (the petitioner’s husband) sold out half portion of the suit property to the petitioner by executing a registered deed of sale being no. 30373 of 1973 dated 18.12.1973. The petitioner’s husband thereafter applied to the RAJUK seeking permission for construction of a three-storied building which was approved by the RAJUK on 26.02.1968 and the petitioner and her husband jointly constructed a two-storied building thereon and since then they have been possessing the property through the tenants.
 
4. It is stated that during operation of the revisional survey, the name of the petitioner’s husband was duly enlisted and published under the Khatian no. 1712 wherein the SA Plot no. 793 has been converted and shown as the RS Plot nos. 1253 & 1254 with an area of 0.0080 & 0.0428 respectively, in total 0.0508. Thereafter, during operation of the City Survey the names of the petitioner and her son were duly prepared and published in the Khatian no. 2030 wherein the RS Plot nos. 1253 and 1254 have been renamed as the City Survey Plot nos. 6985 and 6986 respectively. It is claimed that the petitioner and her family members have been possessing the case property since 15.08.1963 and the same has never been enlisted as an Enemy Property until initiation of E.P. Case no. 5 of 1978 and, then, inclusion of the same under the “Ka” and “Kha” lists of the vested property through publication of the Gazette Notifications dated 06.05.2012 and 30.09.2012 under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ at serial nos. 957 and 103 respectively.
 
5. Being aggrieved with the said inclusion in the vested property list, the petitioner approached this Court and obtained the instant Rule.
 
6. Respondent nos. 1 to 5 contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that the case property, along with some other properties, were actually owned by some Hindu persons who left the then East Pakistan for India for good during the communal disturbance of 1947 and, thereafter, in 1965 the property in question was declared as enemy property under the Defence of Pakistan Rules, 1965. The Additional Deputy Commissioner (Revenue) as the Assistant Custodian of the enemy property took the management of the case property vide E.P. Case no. 5 of 1978  against which the petitioner filed Title Suit No. 215 of 1978 in the 6th Court of Assistant Judge, Dhaka and achieved nothing. It is alleged that the papers and documents annexed to the writ petition and subsequent affidavits are forged and fabricated and, even, if for argument’s sake, the decree passed in Title Suit No. 290 of 1969 on 30.08.1971 is believed to be a genuine one, the same is to be taken as an exparte decree. 
 
7. Mr. Md. Haroon Ar Rashid, the learned Advocate appearing for the petitioner, takes us through the supporting papers and documents of the petitioner as to her title and possession over the case property, which include deed of sale, records of right and payment of the bills, rates etc annexed to the writ petition as well as to the subsequent supplementary-affidavits to the writ petition, and submits that it is clearly evident from these appendixes and enclosures that the petitioner is the legal owner and possessor of the case property and, therefore, inclusion of the case property in the “Ka” and “Kha” lists under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is an arbitrary and colourful action of the respondents under the cover of the provisions of the said special law. In an endeavour to elaborate the preceding point of argument, he next submits that in view of the fact the predecessors-in-interest of the petitioner’s husband had been possessing and enjoying the case property uninterruptedly from time immemorial and, then, the petitioner’s husband had been possessing and enjoying it since 15.08.1963, when Ms. Radha Rani Basak and Nanda Rani Basak had entered into an agreement for selling the case land to the petitioner’s husband and, lastly, the petitioner & her children have been possessing the suit land since 18.12.1973 when the petitioner’s husband transferred the suit land in the petitioner’s name and, furthermore, in the light of the fact that previously the petitioner’s husband had and, currently, the petitioner and her son have mutated their names with regard to the case property and have been paying the rents and different bills etc without ever been evicted by the respondents, therefore, inclusion of the case property in the “Ka” and “Kha” lists under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ was completely illegal.
 
8. He, then, places annexure I, which is the judgment and decree dated 30.08.1971 passed by the Subordinate Judge, Ist Court, Dhaka in Title Suit no. 290 of 1969, and submits that the suit was decreed on contest in the light of the fact that the Assistant Custodian had filed a written statement in the said suit and, thus, there is no scope to treat the said decree as an exparte decree under the provisions of Article 3 of the Bangladesh (Legal Proceedings) Order, 1972 (hereinafter referred to as the PO 12). He, as an addition to this count of his submissions, canvasses that the respondents have never preferred any appeal against the said judgment and decree passed on 30.08.1971 in Title Suit no. 290 of 1969 nor have they taken any action against the execution of the decree under the provisions of article 8 of the Bangladesh Transfer of Immovable Property (Temporary Provisions) Order, 1972 (hereinafter referred to as PO 142) and, thus, he argues that by not questioning the said judgment and decree dated 30.08.1971 or its subsequent execution and, also, by not enlisting the case property in the list of the enemy property during operation of the Defence of Pakistan Ordinance, 1965, the respondents are estopped from claiming the case property to be a vested property. The learned Advocate for the petitioner further submits that the inclusion of the case property in the list of the enemy property in the year 1978 and, on the basis of that, initiation of Enemy Property Case no. 5 of 1978 was completely illegal inasmuch as the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (Ordinance No. 1 of 1969) was repealed on 23.03.1974.
 
9. With regard to the maintainability of the present writ petition Mr. Haroon Ar Rashid, the learned Advocate for the petitioner, forcefully submits that since the petitioner is agitating the allegation of violation of her fundamental right, namely right to property under Article 42 of the Constitution, the present writ petition is maintainable inasmuch as for invoking writ jurisdiction under Article 102(1) of the Constitution the petitioner does not require to show the availability of the alternative efficacious forum. The learned Advocate for the petitioner in support of his submissions refers to a series of decisions, which include the case of (i) Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43, (ii) Priyatosh Talukdar Vs Assistant Custodian, Vested and Non-Resident Property, Chittagong and others 39 DLR (AD) 178, (iii) Government of Bangladesh and another Vs Syed Chand Sultana and other 51 DLR (AD) 24, (iv) Begum Lutfunnessa Vs The People’s Republic of Bangladesh and others 42 DLR (AD) 86, (v) Sunil Kumar Ghosh and others Vs Bangladesh 7 BLD 131, (vi) Sreemati Parul Kusum Roy Vs Bangladesh and others 1988 BLD 6. (vii) People’s Republic of Bangladesh Vs Chairman, Court of Settlement and others 49 DLR 560, (viii) Akbar Hossain Khan (Md) and another Vs Md Awlad Hossain Khan and another 49 DLR 561, (ix) Nurunnahar Begum and others Vs Government of the People’s Republic of Bangladesh and another 49 DLR 433 and (x) Lutfur Rahman (Md) Vs Ministry of Law and Parliamentary Affairs and another 49 DLR 432.
 
10. By making the above submissions the learned Advocate for the petitioner prays for making the Rule absolute. 
 
11. Ms. Nasrin Parveen, the learned Assistant Attorney General appearing on behalf of the respondents, at the very outset takes us through the annexures appended to the writ petition as well as to the subsequent affidavits filed by the petitioner and submits that there are plausible reasons for arousing suspicions as to the genuineness of those papers.
 
12. She questions about the authenticity of the papers and documents filed by the petitioner before this Court by pinpointing to the discrepancies and ambiguities apparent on their face and, for example, she seeks to draw our attention to some documents of Pakistan regime such as plaint of the Title Suit no. 290 of 1969, judgment and decree passed by the learned Sub-Judge which contains the word “Dhaka”, though at the relevant point of time its spelling was “Dacca”. To substantiate her suspicion about the genuineness of the petitioner’s claim she then points out to another fact that the petitioner has produced only the papers which are apparently favourable to her and abstained from submitting some vital documents such as the plaint plus the written statement of the Title Suit no. 215 of 1978 wherefrom somewhat detailed information could have been gathered with regard to the title and possession of the case property.
 
13. She, then, refers to the judgment and decree passed in Title Suit no. 290 of 1969 and submits that the judgment and decree is an exparte decree inasmuch as the Deputy Commissioner was made the defendant in the said suit as the Custodian of the property, but he could not contest the suit as at the relevant point of time the country was under the state of war. She submits that the written statement filed by the Assistant Custodian should not be taken to have been filed by the party to the said suit and, accordingly, she argues that the said judgment and decree is not a decree in the eye of law inasmuch as article 3 of the P.O. 12 provides that an exparte decree passed from Ist March, 1971 to 1st March, 1972, both exclusive, shall be deemed to be null and void. She, thus, argues that since the said decree is a nullity, the respondents or any other party have no legal obligation to challenge the same either in any original forum or appellate forum.
 
14. She further submits that non-enlistment of the case land in the enemy property list before creation of Bangladesh does not debar the Government of Bangladesh to enlist the property in the enemy property list inasmuch as since introduction of the provisions regulating the enemy property on 06.09.1965 through the Defence of Pakistan Ordinance, 1965, the same remains in continuous operation by dint of the saving clauses of the subsequent statutes regulating the matters relating to the enemy property and, subsequently, vested property.
 
15. Then, she submits that the petitioner ought to have approached the competent forum namely, the tribunal constituted under provisions of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ given that adjudication of her case involves taking oral evidence to either establish or controvert the genuineness of the papers submitted by her. To further explain her argument on the maintainability issue of this writ petition, she submits that had these papers and documents been produced before the said forum, there would have been a proper and effective adjudication of the present case and vehemently submits that the writ petition is liable to be discharged outright only on the ground of maintainability as the Legislature has created a special forum for adjudication upon the disputes with regard to the vested property and the petitioner instead of availing the said forum invoked Article 102 of the Constitution knowing fully well that the writ petition is not maintainable.
 
16. She contends that the petitioner has not approached this Court bonafide given the fact that she sought to avail the forum under Article 102 of the Constitution when a special forum was available to her. She terms the petitioner’s move before this Court to be an attempt to frustrate the provisions of a special law and to obtain a favourable order from this Court by resorting to the means of suppression of the real facts. She argues that the forum under Article 102 of the Constitution is not available to a petitioner who does not come with clean hands. In support of her submissions, she refers to and relies on the case of Concord Progati Constructions Ltd. Vs BPDB 66 DLR 475.
 
17. By making the above submissions, the learned Assistant Attorney General prays for discharging the Rule.
 
18. In adjudication of this case, we have given a patient hearing to the submissions advanced by the learned Advocate for the petitioner and the learned Assistant Attorney General, minutely perused the writ petition, supplementary-affidavits, affidavit-in-opposition, together with their annexures, and also attentively read through the relevant provisions of law and the case decisions placed before us and, then, those have been considered by us very carefully.  
 
19. Since the question of maintainability has been raised by the respondents, at first the said issue requires to be taken up for examination by us before embarking upon the factual aspect as well as the other legal issues involved in this case. 
 
20. In order to properly deal with the maintainability issue, it would be profitable for us to look at the provisions of Article 102(1) of the Constitution in the backdrop of the plea taken by the petitioner that since her fundamental right has been violated, she is competent to directly invoke the jurisdiction of Article 102(1) of the Constitution without going to the other forum. The said Article runs as follows:-
 
102. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate  for the enforcement  of any of the  fundamental rights conferred by Part III of this Constitution.
 
21. Our plain and simple understanding on the provisions of this Article is that if an aggrieved person comes out with an allegation of playing foul with her/his fundamental rights by any one, this Court is the only forum to provide appropriate remedy to the said aggrieved person by issuing necessary direction or order upon any person or authority, be that private or public.
 
22. It follows that we have to first carry out an examination of the facts of this case to see whether there has been any infringement of any fundamental rights guaranteed under part III of the Constitution. It is contended by the petitioner that by inclusion of her property in the list of the vested property, Article 42 of the Constitution has been violated. Let us, thus, look at the provisions of Article 42 of the Constitution, which runs as follows:
 
Article 42 (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
(2) A law made under clause (1) of this article shall provide for the acquisition, nationalization or requisition with compensation and shall fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision of the law in respect of such compensation is not adequate.  
 
23. From a plain reading of the provisions of the aforesaid Article it appears that it is a qualified right inasmuch as the very wordings “subject to any restrictions imposed by law” speak itself that it is not an absolute right like the other fundamental rights guaranteed under Articles 26 to 29 of the Constitution.
 
24. Since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ has been enacted by the Legislature for declaring the ownership of certain type of property to have been vested in the Government in continuation of the operation of the provisions of the Defence of Pakistan Ordinance, 1965, then, Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969, then, the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 and Vested and Non-resident Property (Administration) Act, 1974, therefore, every citizen will qualify to enjoy the right to acquire or hold the property only within the boundaries of this statute. On a careful reading of the entire অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ it transpires to us that the citizen shall be competent to own, possess, hold and enjoy any property only subject to the limitations and restrictions imposed by the provisions of the said law. Moreover, in the backdrop of providing a safeguard provision in the said অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ for challenging the enlistment of any person’s property in a forum specially created for the affected persons only, the petitioner’s right under Article 42 has not in any way been violated. Accordingly, it is our view that the petitioner was not competent to invoke the forum under Article 102(1) of the Constitution directly. 
 
25. The learned Advocate for the petitioner, in an effort to bring this case within the purview of Article 42 of the Constitution, has referred to 3 (three) Appellate Division cases and 6 (six) High Court Division cases.
 
26. We would take up all these cases one by one so as to see whether the facts of those cases are similar to the facts of the present case warranting application of the ratio laid down in those cases. In other words, what factors urged and persuaded the Apex Court to consider the facts of the said cases to be the actions taken by the state functionaries in violation of Article 42 of the Constitution and, thereby, allowed the petitioners of those cases to invoke Article 102(1) of the Constitution.
 
27. In the case of the Priyatosh Talukdar Vs Assistant Custodian, Vested and Non-Resident Property, Chittagong and others 39 DLR (AD) 178,  the plaintiff-appellant filed Mortgage Suit no. 43 of 1964 in the First Court of Subordinate Judge, Chittagong, against the heirs of one Umesh Chandra Chowdhury and got an ex-parte decree on 29 August 1966. The decree-holder, appellant, then started Execution Case no. 4 of 1967 but respondent no. 1, Assistant Custodian of enemy Property, (subsequently designated as vested property), filed an objection under section 47 of the CPC taking the ground that the suit land being an enemy property is exempt from attachment or sale in execution of any Court decree as specifically provided in article 8 of the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966. This objection was accepted and the Execution Case was dismissed by the trial Court by its order dated 28 January 1970. But the decree-holder challenged this order by an appeal (F.M.A. no. 28 of 1970) whereupon a Division Bench of the High Court Division at Chittagong, by judgment and order dated 4 March 1984, maintained this order with the modification that the execution proceeding shall remain stayed as long as the suit property remains a vested property. Leave was granted by the Apex Court to the decree-holder to examine the validity of the said order. It is clearly apparent from the fact of this case that neither the petitioner of the said case had invoked Article 102(1) of the Constitution, nor is there any observation by the Apex Court with regard to invocation of Article 102(1) and Article 42 of the Constitution. As evidently the said decision has no applicability or relevance in the present case, it is beyond our comprehension why this decision has been cited in this case by the learned Advocate for the petitioner.
 
28. In the case of Bangladesh Vs Syed Chand Sultana and other 51DLR (AD) 24, a property owned by Advocate Mozffar Hossain of this Court, who died in 1989, was listed as an abandoned property. In the said case there was no allegation against the petitioner that he had left for India before 1970 or went to Pakistan during the war time in 1971 or thereafter. It was an admitted position in the said case that the petitioner of the said case hails from Jessore and upon being allotted a plot by the RAJUK, he had been living therein and, thus, the High Court Division found the inclusion of the property in the list of the abandoned property to be exfacie illegal. Moreover, there was not a single disputed question of fact, which required taking evidence and cross examination. The scenario of the present case is completely different from that of the cited case, for, firstly, it is an absurd suggestion to draw a conclusion on the ownership, title and possession of the property of this case in the backdrop of the claim of the petitioner’s husband that in the year 1963 he had made a bainapatra with a Hindu family who never appeared before any Court or Government authority and, secondly, there are allegations of fabrication of papers which require taking deposition and cross examination of the concerned witnesses. Thus, the ratio of the cited case is not applicable in the present case. 
 
29. In the case of Begum Lutfunnessa Vs the People’s Republic of Bangladesh and others 42 DLR (AD) 86 when the writ petition was filed on 19.08.1986 challenging the inclusion of the petitioner’s property in the abandoned property list, no Court of Settlement was constituted. Furthermore, from paragraph 10 of the cited case, it appears that the Apex Court found the ex-facie illegality in the actions taken by the Government. Also, the distinctive feature of the said case from the present case is that while there was no need of examining any witness in the cited case, the fact of the present case commands that for a proper resolution of the allegations of fabrication of the papers, on the basis of which the petitioners seek to claim their title, the relevant witness should be called up for giving deposition and cross-examination.   
 
30. In all the three cases, the actions of the Government were so arbitrary that on the face of the annexed papers the Courts were in a position to understand and spot the illegality and, accordingly, unhesitatingly termed the impugned action to be ex-facie illegal and malafide, and given the aforesaid background of those cases the Apex Court, when found that the authority did not have any jurisdiction to take the impugned actions, the Courts rightly termed the actions to be without jurisdiction. Upon skimming through the 6 (six) decisions of the High Court Division, we find that in those cases the Court found the actions of the Government to be ex-facie illegal or malafide or the impugned action having been taken by an incompetent authority, the Court termed it as ‘coram non-judice’ or the authority sought to apply the provisions of law maliciously and the Courts considered the action as ‘malice-in-law’. Thus, it appears that the facts and scenario of the above-cited 6 (six) High Court cases were completely different from the facts of the present case.
 
31. From the discussions made hereinbefore it appears that the present writ petition’s facts and circumstances do not attract the provisions of Article 42 of the Constitution.   
 
32. Now, let us see whether the petitioner is competent to invoke Article 102(2)(a)(ii) of the Constitution for a certification (Certiorari) by this Court to the effect that enlistment of the petitioner’s property as a vested property has not been done in accordance with law or whether this is a fit case seeking a direction upon the respondents under Article 102(2)(a)(i) of the Constitution (mandamus) to release the petitioner’s property from the list of the vested property. We would, thus, look at the said provisions of Article 102(2) (a)(i) & (ii), which are reproduced below: 
 
Article 102(2): The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-
  1. on the application of any person aggrieved, make an order-
    1. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or
    2. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; (underlined by us)
    3. It appears from a careful reading of the above provisions that this Court would be in a position to exercise its power and jurisdiction under article 102(2) of the Constitution if no equally efficacious forum for getting any remedy is available. 
33. Apparently, in the case at hand, the petitioner challenges the respondents’ actions in enlistment of the petitioner’s property as a vested property by publications of two gazette notifications under the mandate of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১. The said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ has also made provisions for seeking redress for an aggrieved person by way of challenging the enlistment of any property as vested property. From the reading of the entire provisions of the said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ it appears to us that the Legislature has created a special tribunal namely, অর্পিত সম্পত্তি প্রত্যর্পণ ট্রাইবুনাল for adjudication of the claims on vested properties empowering it not only to declare a property to be not a vested property, but also to restore the possession of the property to the title holder. Moreover, given that there is a mandatory time limit for adjudication of the matters by the said tribunal in the said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ as well as there is a provision for preferring appeal against the judgment and decree of the tribunal, we find that the forum is a better forum than the ordinary fora.
 
34. With all the above features of the অর্পিত সম্পত্তি প্রত্যর্পণ ট্রাইবুনাল, we have no other option but to hold that the said tribunal being a forum equipped with necessary powers to remedy the grievance of the petitioner, she ought to have approached the tribunal. Upon elaborately discussing and categorically examining all the case laws of our Apex Court on this issue, latterly a Division Bench of this Court has sought to revisit the said point in the case of Concord Pragati Construction Ltd Vs BPDP 66 DLR 475 wherein it was held that availability of an alternative forum with the competency of providing the same remedy debars this Court to entertain a writ petition under Article 102(2) of the Constitution.
 
35. It follows that the present writ petition is not apposite to be fitted into the purview of Article 102 of the Constitution and liable to be discharged on the maintainability ground.
 
36. It is, however, the plea of the petitioner that when the Gazette notifications were published, at that relevant point of time, there was no tribunal in operation and, thus, the petitioner had to resort to Article 102(2) of the Constitution. It is, therefore, necessary to look at the date of publications of the impugned notifications, the date of setting up the tribunals under the mandate of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ and the date of filing the present writ petition. From the scrutiny of the annexed papers it transpires that annexure-H is the ‘Ka’ schedule of the vested properties published under the Gazette Notification dated 06.05.2012 and has been impugned herein, for, at its page 41589 under serial no. 957, a homestead of .0508 acres under the SA khatian no. 209 & Plot nos. 792 & 793 with the name of Ms. Radha Rani Basak has been included in the said ‘Ka’ list, which the petitioner claims to be the owner of it, and annexure-H1 is the ‘Kha’ schedule of certain vested properties which has been published in the Gazette notification on 30.09.2012 where the petitioner’s homestead of 0.0428 acres under the SA khatian no. 2030 & plot no. 6986 is listed therein and the petitioner has challenged the said enlistment.
 
37. From annexure-L, which is a Gazette notification dated 06.03.2012, it transpires that the Government has set up one tribunal for each of the district of the country and the District Judges of each of the districts have been appointed as the Judges of the tribunals. From annexure-M, which is the Gazette notification dated 18.07.2012, it transpires that the Additional District Judges, in addition to the District Judges of all the districts, have been appointed as the judges of the tribunals under অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ upon cancelling the annexure-L. From annexure-N, which is the Gazette Notification dated 10.07.2013, it appears that the first Joint District Judges of all the districts have been appointed as the judges of the first tribunal for each of the districts and the other Joint District Judges of the every districts of the country have been appointed as the Judges of the additional tribunals of a district by cancelling annexure-M.
 
38. Evidently annexure-H, which is the ‘Ka’ schedule, was published on 06.05.2012 and under the original provisions of Section 10 of the অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ the petitioner could have filed an application before the tribunal within 90 days i.e. within 06.08.2012. However, before the expiry of the said ninety days, by Act no. xxii of 2012 on 21.06.2012 the time was extended for further 120 days from 09.06.2012 and, thereafter, by several amendments the said time limit was extended from time to time before the expiry of the stipulated period of filing an application in the tribunal and, finally, it was extended till 31.12.2013. Thus, it is evident that the petitioner had ample opportunity to approach the tribunal before filing this writ petition on 19.11.2012. If, for the sake of argument, it is conceded that the initial time limit of ninety days was not noticed by the petitioner, nevertheless, the subsequent extension of time at first 120 days, then, of 300 days and thereafter upto 31.12.2013 could have been availed of by the petitioner. 
 
39. At the fag end of the hearing of this case, the learned Advocate for the petitioner very humbly submitted that the petitioner was not aware of publication of the first Gazette Notification on 06.05.2012 and only when she came to know about enlistment of her property in the “Kha” listed vested property from the Gazette Notification dated 30.09.2012, she approached him (the learned Advocate before us, Mr. Haroon Ar Rashid), but he was under an impression that since the time limit of 90 (ninety) days have already expired, there was no scope for the petitioner to approach the tribunal. Mr. Rashid, in the facts and circums-tances, made an humble and earnest prayer to this Court not to reject this writ petition on the ground of maintainability given that at the time of filing this writ petition he sincerely was of the opinion that there was no forum available for the petitioner.
 
40. In order to deal with the above submissions, we are required to investigate into the veracity of the claim as to whether the learned Advocate committed a bonafide mistake in computation of the limitation period. Secondly whether the learned Advocate was professionally competent in dealing with the petitioner’s case in the backdrop of the fact that even after filing the present writ petition, he had more than 1 (one) year time in his hand to seek redress in the tribunal. Finally, if the above two factors are held in favour of the learned Advocate, in that event, whether the petitioner is entitled to get protection under the provisions of the Limitations Act, 1908, in particular the provisions of Section 14 read with Section 29 of the Limitation Act, 1908.
 
41. Apparently, for the petitioner there was no reason to be in a hurry for approaching this Court as no step was taken by the Government to evict her. In view of the admitted fact that the time-limit for filing an application in the tribunal was extended from time to time, initially from 90 (ninety) days to further 120 days, then for further 300 (three hundred) days and lastly the time to file application in the tribunal was extended to 31.12.2013, the learned Advocate ought to have consulted with other experienced lawyers on the matter, for, lawyers may be considered to be the cognoscenti of the legal field only when they render proper advice to their clients by finding out the relevant provisions of law upon putting their best efforts, not by holding an attitude of all-knowing persons or claiming themselves that since they are Advocates, they are acquainted with the provisions of all the laws and readily capable of advising clients without looking at the texts of the laws.
 
42. In this case, Mr. Haroon Ar Rashid’s plea of unawareness about extension of time appears to us to be a bonafide mistake albeit he should have searched for the detailed provisions relating to the time-limitation for filing applications before the tribunal, which he did at the time of the hearing of this case in this Court. The factors that lead us to be lenient in treating his conduct to be bonafide are that, firstly, this Rule was fixed for hearing at his instance and subsequently it was upgraded on his prayer. Had he intended to drag on this matter, he would not have been eager to get this Rule disposed of and, secondly, the way he conceded that he was under an impression that the time had already expired, his demeanour before this Court does not command us to hold a contrary view.
 
43. The answer to the second point, that the petitioner’s Advocate could have filed an application in the tribunal upon withdrawing this writ petition any time before the expiry of 31.12.2013 in order to avail the adjudication of this case from the tribunal, is same to the first point given that it is Mr. Haroon Ar Rashid who being an Advocate of the High Court miserably failed to advise his client properly. The learned Advocate had ample opportunity to be familiar with the relevant provisions of limitations either by perusing the said provisions or by sharing the matter with the Senior Advocates.
 
44. While a lawyer’s motto should be to achieve targeted result from a competent forum for his/her client, the lawyers must not seek to win a case by circumventing the due procedure laid down in a statute. This sort of tendency of a lawyer may be observed by the Court not only as a professional incompetency, but it may be taken as a malpractice. Making clients happy by any means, even by adopting an improper route, is not befitting with the cannons of the legal profession. In the case of AKM Azaduzzaman Vs Public Service Commission 4 ALR 2014 (2) 278, a Division Bench of this Court, when found that the petitioner was wrongly advised to invoke the writ petition, the Court indicated at discharging the Rule with an expectation that the learned Advocate would non-prosecute the Rule and, thereby, help the Court to save its valuable time. When the learned Advocate opted to have a full judgment, the Court did not have any option but to deliver a detailed judgment. In the said circumstances the Court lambasted the learned Advocate for insisting upon the Court to deliver the full judgment instead of non-prosecuting or withdrawing the writ petition.
 
45. In the case of Bandar Nagari Bahumkhi Samabay Samity Ltd Vs Bangladesh 5 ALR 2015(1) 194 this Court imposed a fine of Taka 5,000/- to be paid from the pocket of the learned Advocate for the petitioner when the Court found the conduct of the learned Advocate to be unbefitting with the norms of the legal profession.
 
46. In this case since it is very much apparent that due to the learned Advocate’s professional immaturity and incompetency the petitioner’s case is before us, it would not be improper to impose a fine upon the learned Advocate of the petitioner. However, given the fact that it was a bonafide mistake on part of the learned Advocate Mr. Haroor Ar Rashid, we are taking a lenient view for this time and, thus, not slapping any cost upon him. Nonetheless, we feel it pertinent to record a note of caution that the repetition of this kind of mistake in future by Mr Harron Ar Rashid shall be taken seriously by this Court towards slapping an exemplary fine.  
 
47. We may now take up the third point for our examination. In other words, the issues on the Limitation Act, 1908 to be examined with an aim to see whether the petitioner would be eligible to approach the tribunal after discharging the instant Rule on the maintainability ground.
 
48. For the purpose of effective adjudication on this point, we went through the entire provisions of the Limitation Act, 1908. From a minute perusal of the provisions of Section 3 together with Sections 14 & 29, we find that the petitioner might have an opportunity to seek redress from the tribunal. For a better understanding on the relevant part of the said provisions namely Section 3 of the Limitation Act, it may be reproduced hereunder:
 
3. Dismissal of suits, etc. instituted after period of limitation: Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed thereof by the first schedule shall be dismissed, although limitation has not been set up as a defence. (underlined by us) 
 
49. It appears from the aforesaid provisions that if a suit, application, appeal, revision, review is filed before any Court or tribunal beyond the time-limitation prescribed in the first schedule of the Limitation Act, 1908 the same shall be dismissed subject to the provisions contained in Sections 4 to 25 of the said Limitation Act, 1908. 
 
50.  From the minute reading of the provisions of Sections 4-25, Section 14 appears relevant for the purpose of adjudication of this case, which is reproduced below:
 
14. Exclusion of time of proceeding bonafide in Court without jurisdiction: In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. 
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
Explanation I.- In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II.- For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation III.- For the purpose of this section misjoinder of parties or of causes of section shall be deemed to be a cause of a like nature  with defect of jurisdiction.
 
51. A plain reading of Section 14 of the Limitation Act gives us an understanding that if in good faith a litigant files any suit, application, appeal, revision and review and, subsequently, if it surfaces that approaching of the said forum was done under a mistaken view, the said time period may be excluded from the computation of the time period stipulated in the first schedule of the Limitation Act, 1908. 
 
52. Now the question comes up for consideration that whether the time period prescribed in a special statute, such as Awc©Z m¤úwË cÖZ¨c©Y AvBb, 2001, can be linked up with the provisions of Section 14 of the Limitation Act, 1908. The learned Advocate for the petitioner, in a desperate attempt to bring this case within the ambit of Article 102(2) of the Constitution, had referred to the case of Md. Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43 by submitting that when special law prescribes a time limit, Section 14 is incapable of rescuing a petitioner. The above submission was advanced aiming at convincing us that since the petitioner is by now time barred to approach the tribunal, she has no forum available to save her property.
 
53. In the said case of Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43, the petitioner, as a Government servant, had approached the Administrative Tribunal seeking retrospective promotion and the application was though allowed by the Tribunal, however, the Appellate Tribunal rejected it on the ground of limitation as the petitioner had filed the application beyond the period of limitation prescribed in the relevant law. The decision was upheld by the Appellate Division. In the said case, in our view, the petitioner had rightly approached the Tribunal and, then, had availed all the appellate forum upto the Appellate Division. But, in the case at hand, the petitioner instead of filing an application before the Tribunal invoked the writ jurisdiction directly. Thus, so for as the issue of forum is concerned, the decision goes against the petitioner as the cited decision clearly shows that approaching the tribunal was a correct step by the petitioner of the cited case. Since the petitioner of the said case failed on the issue of limitation, a pertinent question has now arisen that because of the lack of the knowledge on the limitation point, whether a citizen should be deprived of enjoying his/her right to property. We shall endeavour to deal with this issue at this juncture.
 
54. Apparently, from the reading of the said case, it may appear that Section 14 of the Limitation Act, 1908 is not applicable in this case as well. However, in the recently decided case of Abdul Wahab Sheikh Vs Md. Kamal Hossain and others 20 BLT (AD) 282 our Appellate Division upon examining the wordings  of Section 29 of the Limitation Act, 1908 in tandem with revisiting the cases of Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others, 17 BLD (AD) 43; 46 DLR (AD) 1, Government of Bangladesh Vs. Md. Abdul Karim 47 DLR (AD) 146; Jahangir Kabir Vs Bangladesh 48 DLR(AD) 156 and the case of Abul Bashar Vs ICB 52 DLR (AD) 178 has reviewed  its own view having held that unless any special law expressly excludes the applicability of Section 14 and the other Sections of the Limitation Act, 1908 as mentioned in Section 29 of the said Act, they shall be applicable. 
 
55. Given the above constructions of the provisions of Section 29 of the Limitation Act, 1908, as interpreted in the above cited case by our Apex Court, apparently the said provision transpires to be a helpful and safeguard provision for a petitioner, who is required to deal with the time-limitation under a special law, for agitating his right before the tribunal. Section 29 of the Limitation Act, 1908 now may be quoted below: 
 
29. Saving- (1) …………..…………
(2) Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a)     the provisions contained in sections 4,  sections  9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special law; and
(b)     the remaining provisions of this Act shall not apply. (underlined by us)
 
56. From the perusal of the above provisions of law it appears that the provisions contained in Sections 4, 9 to 18 and Section 22 shall be applicable for computation of time-limit for institution of any suit, making any application, preferring any appeal and filing revision or review under a special law if applicability of the said provisions has not been expressly negated or ousted in the concerned special law. From the very wordings of Section 29(2) of the Limitation Act, 1908 any one with ordinary prudence would take the above view. It is widely known to the learned members of the Bench and Bar, even to most of the lay people, that the time which are required and consumed for obtaining certified copy or the vacation period of the Courts are usually deducted from not only the limitation period of ordinarily laws, but also from the special laws’ time-limitation. The source of this long-standing practice is none other than Section 29(2) of the Limitation Act, 1908 which speaks about applicability of the Sections 4, 12 and 14 of the Limitation Act, 1908 in reckoning the limitation period under the special laws.   
 
57. In the অর্পিত সম্পত্তি প্রত্যর্পণ আইন ২০০১, evidently, the application of the provisions of Section 14 having not been excluded expressly, therefore, we hold that the provisions of Section 14 of the Limitation Act may be taken into consideration in computation of the time limit. In other words, since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is a special law wherein a certain time-limit has been stipulated to file any application before the tribunal and since, as per the provisions of Section 29(2)(a), provisions of Section 14 shall be applicable for not being excluded by any express provision of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ we are of the view that the petitioner is well competent to seek the protection and benefit of Section 14 of the Limitation Act, 1908 and, thereby, she may be allowed to exclude the time spent in this Court from the date of filing this writ petition. However, in computation of the number of days for exclusion, it is highly likely that the petitioner might encounter a dilemma in the backdrop of the fact that there was no certain amount of days, such as 120 days or 300 days etc, for filing an application before the tribunal when the latest extension was made upto 31.12.2013 by the latest amendment of law and, thus, the pertinent question may arise before the tribunal that how many days the petitioner may get for approaching the tribunal from the date of pronouncement of this judgment by which the petitioner came to know that she should have availed the said forum, namely tribunal, provided in the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১.
 
58. It may appear to be a difficult situation for the tribunal to find a straight-forward resolution of this issue. However, to overcome this hurdle, the tribunal may calculate the limitation applying the following method. When the petitioner had filed the writ petition on 19.11.2012, a limitation of 300 days was in operation with effect from 24.09.2012 and, on the basis of the fact that these 300 days were available for the petitioner from 24.09.2012, the petitioner may be given a time of the said 300 days time from the date of delivering this judgment i.e from today. However, the time from 24.09.2012-19.11.2012 i.e. 55 days shall be deducted from 300 days in the light of the fact that the last limitation of the said 300 days commenced from 24.09.2012 and the petitioner filed her writ petition on 19.11.2012. 
 
59. If the petitioner files an application in the tribunal within the above time period, then, the tribunal shall be at liberty to examine the authenticity of the deed of Bainapatra of the year 1963 between the petitioner’s husband and Ms. Radha Rani Basak & Ms. Nanda Rani Basak and to investigate whether the papers submitted before us relating to the judgment and decree dated 30.08.1971 passed in Title Suit no. 290 of 1969 are genuine. Also, the tribunal may ask the petitioner to submit some other papers which we considered in our observation made hereinbefore in this judgment to be crucial for a fair disposal of this case but the same were not submitted before us, such as certified copies of the plaint, written statement and order sheets of the Title Suit no. 215 of 1978 filed before the 6th Court of Assistant Judge, Dhaka. Notwithstanding the above observations of this Court as to the modus operandi of the trial of the case by the tribunal, it shall be open to the tribunal to take any other step that may deem appropriate for effective adjudication of the petitioner’s case towards ensuring a fair trial and justice for her.
 
60. In the result, the Rule is discharged, however, without any order as to costs.
 
61. Office is directed to send a copy of this judgment to the Secretary, Ministry of Land and also to the Bangladesh Law Commission so as to let them consider whether applicability of the provisions of Sections 4, 12 and 14 of the Limitation Act, 1908 should be specifically incorporated in the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ to ease the functions of the said tribunal and, further, whether the Tribunals should be equipped with the powers of passing interim orders of injunction or any other direction pending disposal of the cases before the said tribunals and also to examine any other lacunas of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১.
 
Office is directed to communicate this judgment to them at once.
 
End.