GOVERNMENT OF BANGLADESH Vs. BIBI MARIUM

JUDGEMENT

(1.) Petitioner Government of Bangladesh, has filed this petition for leave to appeal against judgment and order dated 7-7-1996 of the High Court Division in Writ Petition No.701 of 1987 declaring the impugned judgment dated 27-8-1987 passed by the Court of Settlement in Case No. 47 of 1987 and inclusion of the petitioners House No. 22, Tinshed, Block-D, Mohammadpur Housing Estate, Dhaka in the Kha list of abandoned building published in the Bangladesh Gazette dated 23rd September, 1986 at page 9764(1) and Serial No. 239 declared to have been passed and made without lawful authority and of no legal effect and further directed the respondent-petitioner to exclude the said house from the list of abandoned building. The fact relevant for disposal of this petition is that one Abul Hashem predecessor of the petitioner got possession of the house from his vendor Abul Hossain, the original owner of the house who duly mutated his name with the Government, Municipality and other authorities and obtained loan from House Building Finance Corporation with permission from the Government. But without serving any notice on the petitioner for surrendering possession claiming the house as an abandoned property respondent No.1 petitioner has acted illegally including the house in the aforesaid gazette. An application before the Court of Settlement in the aforesaid case was however rejected by the two members instead of three as contemplated under the Ordinance thereby making the same coram non judice whereupon the petitioner moved the High Court Division in Writ Petition No. 701 of 1987 challenging the enlistment as an abandoned building as well as aforesaid. The High Court Division upon hearing the parties on the point of coram non judice as well as merit passed the impugned order.

(2.) Mr. Mahbubey Alam, Additional Attorney General appearing for the petitioner, urged that the impugned judgment having been found to be coram non judice, the High Court Division acted illegally in not remanding the case vacating judgment and order of the Court of Settlement instead of disposing the case on merit declaring the enlistment as has been made without lawful authority.

(3.) Admittedly the Court of Settlement was not properly constituted while passing the impugned judgment and, as such, under the provision of law and the principle of the decision in the case of Fatema Begum vs. Bangladesh, 42 DLR 342 the judgment suffers from coram non judice.