GOVERNMENT OF BANGLADESH Vs. COURT OF SETTLEMENT

JUDGEMENT

(1.) This appeal has been filed against the judgment and order dated 27.10.1997 passed by a Division Bench of the High Court Division in Writ Petition No. 1370 of 1994. Leave was granted by the order-dated 9.8.2000 to consider the question whether the decree obtained by respondent No. 2 in a suit for specific performance of contract in respect of a property which has been enlisted as an abandoned property in the "Ka" list is a bar for inclusion of such property as an abandoned property and whether the High Court Division misdirected itself in law in deciding the writ petition in not considering the question that the onus to prove that the property in question was not an abandoned property was squarely upon the claimant and the government had no obligation to disclose the basis of treating the property as an abandoned property. Leave was also granted to consider whether the High Court Division fell into an error in holding that the property in question was not an abandoned property without giving any finding as to whether the original owner was present in Bangladesh or his whereabouts were known when the President's Order 16 of 1972 was promulgated.

(2.) Respondent No. 2, Md. Ziaul Islam filed an application under section 7 of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 for exclusion of House No. 5/23, Block-D, Nurjahan Road, Mohammadpur from the "Ka" list of abandoned buildings published on 23.9.1986 in the official gazette. Md. Ziaul Islam claimed that Mustafa Ashraf took lease of the house property from the government of the then East Pakistan on the basis lease deed dated 27.7.1960 but subsequently by two agreements dated 28.7.1968 and 6.2.70, the original allottee entered into a contract with him for selling the house to him. He further claimed that possession was delivered to him by the original allottee on the basis of that agreement. Md. Ziaul Islam, further claimed that he filed a suit for specific performance of contract (Title Suit No. 12 of 1975) against the original allotee and in that suit the Government of Bangladesh was also defendant. The suit was decreed and on execution of the decree, he got a kabala through the court. Considering all the facts and circumstances specially considering the fact that the petitioner of the case i.e. Md. Ziaul Isalam was able to prove his title and possession in the case property, the court of settlement declared that the case property was not abandoned property. Thereafter, Writ Petition No. 1370 of 1994 was filed on behalf of the People's Republic of Bangladesh represented by the Secretary, Ministry of Works challenging the judgment and order passed by the 1st Court of settlement. The High Court Division after elaborate discussion found that there was no illegality in the impugned judgment of the Court of settlement and accordingly, the Rule was discharged by the High Court Division.

(3.) Mr. Abdur Razaque Khan, the learned Additional Attorney-General appearing on behalf of the appellant confined his argument mainly on one point. He has argued that before the Court of Settlement, Md. Ziaul Islam could not prove his possession in the property in question and the Court of settlement erroneously arrived at a finding that the petitioner proved his possession. Mr. Abdur Razaque Khan, clarified his argument by saying that the Court of settlement and also the High Court Division believed the claim of the petitioner's possession relying on the deeds of agreement. Then after taking us through the two deeds of agreement, he has submitted that in the deed of 1968 there is nothing to show that possession was delivered to Md. Ziaul Islam by the original allotee. Further, he has submitted that in the deed of agreement of 1970, only it is mentioned that Md. Ziaul Islam was inducted into possession. Mr. Abdur Razaque Khan has pointed out that no date of induction into possession is mentioned in the deed of 1970.