Tahera Begum and others Vs. First Court of Settlement and others

Case No: Writ Petition No. 4361 of 2000.

Judge: Mashuque Hosain Ahmed,

Court: High Court Division,,

Advocate: MA Quddus Sheikh,Md. Shamsul Haque,,

Citation: 59 DLR (2007) 173

Case Year: 2007

Appellant: Tahera Begum and others

Respondent: First Court of Settlement and others

Subject: Property Law,

Delivery Date: 2006-08-17

Tahera Begum and others Vs. First Court of Settlement and others
59 DLR (2007) 173
 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Joynul Abedin J
Mashuque Hosain Ahmed J
 
Tahera Begum and others……………………………….Petitioners
Vs.
First Court of Settlement and others……………..Respondents

 
Judgment
August 17, 2006.
 
Bangladesh Abandoned Property (Control, Management & Disposal) Order (PO NO. 16 of 1972)
Section 5 (1) (a)
Abandoned Buildings (Supplementary Provisions) Order (LIV of 1985)
Section 7
 
The Court of Settlement refrained from answering most important question whether the property was duly made abandoned or not, rather it seemed to have acted as a Civil Court to determine the title of the instant writ petitioner which seems to be unwarranted, because the Settlement Court cannot go beyond the jurisdiction as provided under President’s Order 16.
 
Lawyers involved:
MA Quddus Sheikh for Md. Fazlul Karim—For the Petitioners.
Md. Shamsul Haque, Assistant Attorney-General with Ms. Quamrunnessa Ratna, Assistant Attorney-General — For the Respondents.

Writ Petition No. 4361 of 2000.
Judgment
 
Mashuque Hosain Ahmed J.- This Rule Nisi under Article 102 of the Constitution of the People's Republic of Bangladesh was issued, calling upon the respondents to show cause as to why the impug­ned judgment and order dated 29-5-2000 passed by the respondent No. 1, the First Court of Settlement, Dhaka in Case No. 377 of 1995 (Kha-72: Block 'D', Mohammadpur, Dhaka), Annexure-Q to the writ petition should not be declared to have been passed without lawful authority and is of no legal effect or such other or further order or orders passed as to this Court may seem fit and proper.

2. The petitioners' case is that one Md. Mujtaba Siddique, son of late Mustafa Siddique was the original owner of the disputed property which was allotted to him by Government of the then East Pakistan through a letter dated 23-1-1960 and pursuant to the aforesaid allotment letter a deed of agreement for lease of a piece of land measuring 144 sq. yards or thereabout under the registration jurisdiction of Mohammadpur Sub-Registry, Dhaka, appertaining to Mouza Baraba, PS Tejgaon now Mohammadpur, being plot VT/15 in Block 'D' of the layout plan No. 57 of 59/60 dated 6-8-1995 for a period of 99 years, was executed and registered on 26-1-1960 at the Sadar Sub-Registrar Office, Dhaka being deed No. 1542 and such deed was made Annexure to this writ petition and marked as Annexure-A. Subsequently, the original lessee, Md. Mujtaba Siddique filed an application dated 10-9­1963 praying for permission for constructing of buildings thereon and a copy of such application is annexed to this writ petition and marked as Annexure-B. Subsequently, the said original owner lessee filed an application being No. D-1483 asking for a sanction of loan from the House Building Finance Corporation, Zonal Officer, Dhaka and on 18-3-1964 the loan of his amounting to Rs. 18,000 was granted in his favour, (Md. Mujtaba Siddique) and the photo copy of the said sanction letter is marked as Annexure-C to this writ petition. He also paid the Government dues in respect of his house amounting to Rs. 1,800 and obtained a clearance certificate from the office of the Administrative Officer, Mohammadpur and Mirpur Housing Estate, Mohammadpur, Dhaka being Memo No. 550-AO dated 25-3-1964 and a photo copy of the clearance certificate was marked to this application, as Annexure-D on 24-3-1964.

3. The aforesaid original lessee, Md. Mujtaba Siddique obtained a certificate from the Section Officer, LG Department, and Government of the then East Pakistan having his specimen signatures attested as the signature was put in the original lease deed as lease, the photo copy of the said certificate Issued on 24-3-1964 is marked as Annexure-E to this writ petition. The original lessee on 28-3-1994 executed and registered a mortgage deed being No. EP 3292 (Deed No. 1673) in favour of the House Building Finance Corporation to avail the loan sanctioned for constructing of building, the said mortgage deed is marked as Annexure-F to this writ petition.

4. The original lessee also maintained a tele­phone and has been paying monthly bills regularly, he obtained a certificate in respect of payment of the telephone bills upto 1-12-1972 from the Accounts Officer, Telephone Revenue, Dhaka being No. TR/ 312048 and the copies of the said telephone bills and the receipts thereof are annexed to the writ petition and are marked as Annexes-G to G-7.

5. The original lessee paid the municipal taxes regularly to the Dhaka Municipal Committee and the copies of the said bills are annexed to the writ petition and are marked as Annexes H to H-2. He also paid electricity charges and bills to the Dhaka Electric Supply regularly and the receipts thereof are annexed to this writ petition and are marked as Annexure-1 to 1-7. The due rent to the Mohammadpur Housing Estate, Dhaka was paid and the receipts thereof are annexed to this and marked as Annexed J to J-2 series.

6. On 14-12-1972 a deed of sale being deed No.23424 was executed and registered by the original lessee in favour of Mohammad Serajul Islam, son of late Munshi Elim Chand Master of Sonakanda, PS Keranigonj, District-Dhaka in respect of transfer of the case property situated at 6/15 Razia Sultana Road, Block-D, Mohammadpur Housing Estate, Dhaka at a consideration of Taka 35,000 and the photo copy of the original sale deed being No. 23434 dated 14-12-72 is annexed to the writ petition and is marked as Annexure-K.

7. It appears from the Memo No. Sha-4/IBA-18/79/183/1(2) dated 3-2-79 that the Ministry of Public Works and Urban Development itself had hired the case house for the purpose of family accommodation of one of the Government Officers named Mr. Md. Abu Issa at a monthly rental of Taka 100 from Md. Serajul Islam, who acquired the case property by purchase from Md. Mujtaba Siddique through a registered deed of sale executed by the aforesaid Md. Mujtaba Siddique. The photocopy of the said memo dated 3-2-79 was annexed to this writ petition and was marked as Annexure-L.

8. On 23-9-86 the Government issued a Gazette Notification enlisting the property as abandoned under PO 16. Thereafter, on 28-8-86 the predecessor of the petitioner, Md. Serajul Islam submitted an application under section 7(1) of the Abandoned Buildings (Supplementary Provision) Ordinance No. LIV of 1985 for exclusion of the disputed house from the list of the abandoned properties published in 'Kha' list being Serial No. 72 page No. 9764(18) in the said Bangladesh Gazette. The learned First Court of Settlement, Dhaka disposed of the application of this petitioner on 29-5-2000 and confirmed the enlistment of the property in the 'Kha' list being bona fide.

9. Under these compelling circumstances, the petitioner was constrained to prefer this Writ petition and obtain the present Rule.

10. Mr. Md. Abdul Quddus Sheikh, the learned Counsel appearing on behalf of the petitioner, submits that the property in dispute has never been taken over by the Government at any time, or declared abandoned under the President's Order No. 16 of 1972; moreover, before listing the property as abandoned as indicated by the said Gazette Notification, no earlier notice was served upon the original owner the lessee, Md. Mujtaba Siddique or to his transferee, Md. Serajul Islam, who was the predecessor of the instant writ petitioners. He further submits that the Court of Settlement erred in law and acted most illegally and mala fide in not considering the materials on record as well as the possession of the case properly and documents in respect of the bona fide transfer of the property and thereupon, the impugned judgment and order has occasioned a failure of justice.

11. No affidavit-in-opposition has been filed by the respondents although notice of the Rule was duly served on them.

12. The learned Assistant Attorney-General expressed his inability to offer the proper assistance to the Court stating, that in spite of his endeavour he could not receive any record or parawise comments from the concerned authority.

13. We have heard the learned Counsel for the petitioner and we have also heard Mr. Md. Shamsul Haque, the learned Assistant Attorney-General for the respondents. We have perused the writ petition as well as the Annexures appended thereto. We find that the original lessee, Md. Mujtaba Siddique was in continuous possession and enjoyment of the case property by paying regular rent, taxes, electricity bills, telephone bills, etc.

14. Before transferring the said property in favour of Md. Serajul Islam by a sale deed dated 14­12-72 and delivered the possession thereof to the purchaser and at the time of promulgation of the President's Order No. 16 of 1972 the original lessee was present in Bangladesh. We also find from Memo No. Sha-4/IBA-18/79/183/1(2) dated 3-2-79 indicating the fact that the Ministry of Public Works and Urban Development hired the disputed case house for family accommodation of one Government Official from Md. Serajul Islam, the predecessor of the writ petitioners. We do not also find that there was no compliance under Article 7 of the Ordinance and there we also find apparent non-compliance of the provision of section 5 of the Ordinance (of President's Order 16 of 1972) as no notice under Section 5(1) (a) of the Ordinance was ever served and, as such, the property was wrongly included in the list of the abandoned buildings and the listing, as such, undoubtedly has been done illegally. We find from the judgment and order of the Court of Settlement it refrained from answering most important question whether the property was duly made abandoned or not, rather it seemed to have acted as a civil Court to determine the title of the instant writ petitioner which seems to be unwarranted, because the Settlement Court cannot go beyond the jurisdiction as provided under PO 16 and its rules, provision and subsequent amendments.

15. In view of the aforesaid facts and circum­stances and having regards to the submissions made by the learned Counsels of both the sides, we have reason to feel inclined to find that the case property has wrongly been declared as abandoned property by the Court of Settlement and also that the property was wrongly included in the 'kha' list of the abandoned buildings.
In the result, the Rule is made absolute without any order as to cost.
Ed.